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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of
the Securities Exchange Act of 1934
Date of Report: May 22, 1997
(Date of earliest event reported)
FEDERAL EXPRESS CORPORATION
(Exact name of registrant as specified in its charter)
Delaware
(State of Incorporation)
1-7806 71-0427007
(Commission File Number) (IRS Employer Identification No.)
2005 Corporate Avenue, Memphis, Tennessee 38132
(Address of principal executive offices)
Registrant's Telephone Number, including area code: (901) 369-3600
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ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS
The following documents are being filed in connection with, and
incorporated by reference in, the Registrant's Registration Statement on Form
S-3 No. 333-07691, which was declared effective on July 10, 1996, as amended
by Post-Effective Amendment No. 1 to such Registration Statement, which was
declared effective on April 28, 1997.
Exhibit Description of Exhibit
- ------- ----------------------
1 Underwriting Agreement relating to Federal Express
Corporation 1997-1-A Pass Through Trust, 1997-1-B Pass
Through Trust and 1997-1-C Pass Through Trust
4.a.1 Pass Through Trust Agreement dated as of May 1, 1997,
between Federal Express Corporation and First Security
Bank, National Association (the "Pass Through Trustee")
(Filed as Exhibit 4.a.3 to Registrant's Form 8-K
dated May 12, 1997, Commission File No. 1-7806, and
incorporated herein by reference.)
4.a.2 Revised form of Pass Through Certificates
(included in Exhibit 4.a.3)
4.a.3 Forms of Series Supplements 1997-1-A, 1997-1-B and
1997-1-C to the Pass Through Trust Agreement between
Federal Express Corporation and the Pass Through Trustee
relating to the Pass Through Certificates
4.a.4 Form of Intercreditor Agreement among the Pass Through
Trustee, Kredietbank N.V., New York Branch (the "Liquidity
Provider"), and First Security Bank, National Assocation
(the "Subordination Agent")
4.a.5 Forms of Irrevocable Revolving Credit Agreements for
Class A and Class B Pass Through Certificates between the
Subordination Agent and the Liquidity Provider
4.b.1 Forms of Trust Indenture and Security Agreements (Federal
Express Corporation Trust Nos. N670FE, N671FE, N672FE,
N673FE, N674FE, N581FE, N583FE, N584FE and N587FE
respectively) between State Street Bank and Trust Company
of Connecticut, National Association or Wilmington Trust
Company, as the case may be (the "Owner Trustee") and
First Security Bank, National Association (the "Indenture
Trustee") relating to Equipment Trust Certificates
(Federal Express Corporation Trust Nos. N670FE, N671FE,
N672FE, N673FE, N674FE, N581FE, N583FE, N584FE and
N587FE, respectively) in connection with the offering of
Pass Through Certificates
4.b.2 Forms of Equipment Trust Certificates
(included in Exhibit 4.b.1)
4.c Forms of Participation Agreements (Federal Express
Corporation Trust Nos. N670FE, N671FE, N672FE, N673FE,
N674FE, N581FE, N583FE, N584FE and N587FE, respectively)
among Federal Express Corporation, the applicable Owner
Participant, the Original Loan Participants, if any, the
Original Indenture Trustee, if any, the Indenture
Trustee, the Owner Trustee, the Pass Through Trustee and
the Subordination Agent relating to Equipment Trust
Certificates (Federal Express Corporation Trust Nos.
N670FE, N671FE, N672FE, N673FE, N674FE, N581FE, N583FE,
N584FE and N587FE, respectively)
4.d Forms of Trust Agreements (Federal Express Corporation
Trust Nos. N670FE, N671FE, N672FE, N673FE, N674FE, N581FE,
N583FE, N584FE and N587FE, respectively) between the
applicable Owner Participant and the Owner Trustee
relating to Equipment Trust Certificates (Federal Express
Corporation Trust Nos. N670FE, N671FE, N672FE, N673FE,
N674FE, N581FE, N583FE, N584FE and N587FE, respectively)
4.e Forms of Lease Agreements (Federal Express Corporation
Trust Nos. N670FE, N671FE, N672FE, N673FE, N674FE, N581FE,
N583FE, N584FE and N587FE, respectively) between the Owner
Trustee, as Lessor, and Federal Express Corporation,
relating to Equipment Trust Certificates (Federal Express
Corporation Trust Nos. N670FE, N671FE, N672FE, N673FE,
N674FE, N581FE, N583FE, N584FE and N587FE, respectively)
4.f Forms of Ancillary Agreement I (Federal Express
Corporation Trust Nos. N670FE, N671FE, N672FE, N673FE,
N674FE and N587FE respectively) among the Federal Express
Corporation, as Lessee, the applicable Owner Participant,
the Indenture Trustee and the Owner Trustee relating to
Equipment Trust Certificates (Federal Express Corporation
Trust Nos. N670FE, N671FE, N672FE, N673FE, N674FE and
N587FE, respectively)
4.g Forms of Owner Participant Guaranty (Federal Express
Corporation Trust Nos. N670FE, N671FE, N672FE, N673FE,
N674FE, N581FE and N587FE) in favor of Federal Express
Corporation, the Owner Trustee, the Indenture Trustee and
the Pass Through Trustee, relating to Equipment Trust
Certificates (Federal Express Corporation Trust No.
N670FE, N671FE, N672FE, N673FE, N674FE, N581FE and N587FE)
Pursuant to the requirements of the Securities Exchange Act of 1934,
the Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
FEDERAL EXPRESS CORPORATION
/s/ MICHAEL W. HILLARD
By: _____________________________________
Michael W. Hillard
Vice President and Controller
(principal accounting officer)
Dated: May 22, 1997
EXHIBIT INDEX
Exhibit Description of Exhibit
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1 Underwriting Agreement relating to Federal Express
Corporation 1997-1-A Pass Through Trust, 1997-1-B Pass
Through Trust and 1997-1-C Pass Through Trust
4.a.1 Pass Through Trust Agreement dated as of May 1, 1997,
between Federal Express Corporation and First Security
Bank, National Association (the "Pass Through Trustee")
(Filed as Exhibit 4.a.3 to Registrant's Form 8-K
dated May 12, 1997, Commission File No. 1-7806, and
incorporated herein by reference.)
4.a.2 Revised form of Pass Through Certificates
(included in Exhibit 4.a.3)
4.a.3 Forms of Series Supplements 1997-1-A, 1997-1-B and
1997-1-C to the Pass Through Trust Agreement between
Federal Express Corporation and the Pass Through Trustee
relating to the Pass Through Certificates
4.a.4 Form of Intercreditor Agreement among the Pass Through
Trustee, Kredietbank N.V., New York Branch (the "Liquidity
Provider"), and First Security Bank, National Assocation
(the "Subordination Agent")
4.a.5 Forms of Irrevocable Revolving Credit Agreements for
Class A and Class B Pass Through Certificates between the
Subordination Agent and the Liquidity Provider
4.b.1 Forms of Trust Indenture and Security Agreements (Federal
Express Corporation Trust Nos. N670FE, N671FE, N672FE,
N673FE, N674FE, N581FE, N583FE, N584FE and N587FE
respectively) between State Street Bank and Trust Company
of Connecticut, National Association or Wilmington Trust
Company, as the case may be (the "Owner Trustee") and
First Security Bank, National Association (the "Indenture
Trustee") relating to Equipment Trust Certificates
(Federal Express Corporation Trust Nos. N670FE, N671FE,
N672FE, N673FE, N674FE, N581FE, N583FE, N584FE and
N587FE, respectively) in connection with the offering of
Pass Through Certificates
4.b.2 Forms of Equipment Trust Certificates
(included in Exhibit 4.b.1)
4.c Forms of Participation Agreements (Federal Express
Corporation Trust Nos. N670FE, N671FE, N672FE, N673FE,
N674FE, N581FE, N583FE, N584FE and N587FE, respectively)
among Federal Express Corporation, the applicable Owner
Participant, the Original Loan Participants, if any, the
Original Indenture Trustee, if any, the Indenture
Trustee, the Owner Trustee, the Pass Through Trustee and
the Subordination Agent relating to Equipment Trust
Certificates (Federal Express Corporation Trust Nos.
N670FE, N671FE, N672FE, N673FE, N674FE, N581FE, N583FE,
N584FE and N587FE, respectively)
4.d Forms of Trust Agreements (Federal Express Corporation
Trust Nos. N670FE, N671FE, N672FE, N673FE, N674FE, N581FE,
N583FE, N584FE and N587FE, respectively) between the
applicable Owner Participant and the Owner Trustee
relating to Equipment Trust Certificates (Federal Express
Corporation Trust Nos. N670FE, N671FE, N672FE, N673FE,
N674FE, N581FE, N583FE, N584FE and N587FE, respectively)
4.e Forms of Lease Agreements (Federal Express Corporation
Trust Nos. N670FE, N671FE, N672FE, N673FE, N674FE, N581FE,
N583FE, N584FE and N587FE, respectively) between the Owner
Trustee, as Lessor, and Federal Express Corporation,
relating to Equipment Trust Certificates (Federal Express
Corporation Trust Nos. N670FE, N671FE, N672FE, N673FE,
N674FE, N581FE, N583FE, N584FE and N587FE, respectively)
4.f Forms of Ancillary Agreement I (Federal Express
Corporation Trust Nos. N670FE, N671FE, N672FE, N673FE,
N674FE and N587FE respectively) among the Federal Express
Corporation, as Lessee, the applicable Owner Participant,
the Indenture Trustee and the Owner Trustee relating to
Equipment Trust Certificates (Federal Express Corporation
Trust Nos. N670FE, N671FE, N672FE, N673FE, N674FE and
N587FE, respectively)
4.g Forms of Owner Participant Guaranty (Federal Express
Corporation Trust Nos. N670FE, N671FE, N672FE, N673FE,
N674FE, N581FE and N587FE) in favor of Federal Express
Corporation, the Owner Trustee, the Indenture Trustee and
the Pass Through Trustee, relating to Equipment Trust
Certificates (Federal Express Corporation Trust No.
N670FE, N671FE, N672FE, N673FE, N674FE, N581FE and N587FE)
EXECUTION DOCUMENT
UNDERWRITING AGREEMENT
May 22, 1997
between
FEDERAL EXPRESS CORPORATION
and
MORGAN STANLEY & CO. INCORPORATED
FIRST CHICAGO CAPITAL MARKETS, INC.
GOLDMAN, SACHS & CO.
J.P. MORGAN SECURITIES INC.
Pass Through Certificates, 1997-1-A
Pass Through Certificates, 1997-1-B
Pass Through Certificates, 1997-1-C
TABLE OF CONTENTS
Page
----
SECTION 1. Representations and Warranties of the Company.............. 3
SECTION 2. Purchase and Sale.......................................... 7
SECTION 3. Covenants of the Company................................... 8
SECTION 4. Payment of Expenses........................................ 10
SECTION 5. Conditions of Underwriters' Obligations.................... 11
SECTION 6. Indemnification............................................ 15
SECTION 7. Contribution............................................... 16
SECTION 8. Representations, Warranties and Agreements to
Survive Delivery........................................... 17
SECTION 9. Termination of Agreement................................... 17
SECTION 10. Default by One of the Underwriters......................... 17
SECTION 11. Notices.................................................... 18
SECTION 12. Parties.................................................... 18
SECTION 13. Governing Law.............................................. 19
Exhibit A Pricing Information
Exhibit B Opinion of Davis Polk & Wardwell
Exhibit C-1 Opinion of Davis Polk & Wardwell pursuant to Participation
Agreement - Refinancing
Exhibit C-2 Opinion of Davis Polk & Wardwell pursuant to Participation
Agreement - Prefunding
Exhibit D Opinion of the Company
Schedule I Underwriters' Commitments
Schedule II Terms and Conditions
FEDERAL EXPRESS CORPORATION
Pass Through Certificates, 1997-1-A
Pass Through Certificates, 1997-1-B
Pass Through Certificates, 1997-1-C
UNDERWRITING AGREEMENT
May 22, 1997
MORGAN STANLEY & CO. INCORPORATED
FIRST CHICAGO CAPITAL MARKETS, INC.
GOLDMAN, SACHS & CO.
J.P. MORGAN SECURITIES INC.
c/o MORGAN STANLEY & CO. INCORPORATED
1585 Broadway
New York, New York 10036
Ladies and Gentlemen:
Federal Express Corporation, a Delaware corporation (the "Company"),
proposes that First Security Bank, National Association, acting not in its
individual capacity but solely as pass through trustee (the "Pass Through
Trustee") under the Pass Through Trust Agreement dated as of May 1, 1997 (the
"Basic Agreement"), as supplemented for each class of pass through
certificates (the "Pass Through Certificates") to be purchased hereunder
(each, a "Class") by a Series Supplement (each, a "Series Supplement"), in
each case between the Company and the Pass Through Trustee (for each Class,
the Basic Agreement, as supplemented by the related Series Supplement, being
referred to herein as the "Pass Through Agreement"), issue and sell to the
underwriters named in Schedule I hereto its Pass Through Certificates in the
aggregate amounts and with the applicable interest rates and final expected
dates set forth on Exhibit A hereto (the "Offered Certificates") on the terms
and conditions stated herein and in Schedule II.
Each Class of Pass Through Certificates will represent interests in a
separate trust (each, a "Pass Through Trust") established pursuant to the
related Pass Through Agreement to fund the purchase of equipment trust
certificates (the "Equipment Certificates") which are to be issued as
nonrecourse obligations by certain owner trustees, each acting not in its
individual capacity but solely as owner trustee (each, an "Owner Trustee"), in
connection with separate leveraged lease transactions relating to four
McDonnell Douglas MD-11F aircraft and five Airbus A300F4-605R aircraft (each,
an "Aircraft" and, collectively, the "Aircraft"). The proceeds from the sale
of the Equipment Certificates will be used to (i) finance a portion of the
purchase price to be paid by the Owner Trustee on behalf of eight Owner Trusts
(Trust Nos. N581FE, N583FE, N584FE, N670FE, N671FE, N672FE, N673FE and
N674FE), and (ii) refinance the aggregate outstanding principal amount of the
Original Loan Certificates issued by the related Owner Trust in connection
with a transaction relating to Trust No. N587FE. Each series of Equipment
Certificates will be issued under a separate Trust Indenture and Security
Agreement between First Security Bank, National Association, acting not in its
individual capacity, but solely as Indenture Trustee (the "Indenture
Trustee"), and the related Owner Trustee (each, an "Indenture" and,
collectively, the "Indentures").
As used herein, unless the context otherwise requires, the term
"Underwriters" shall mean the firm or firms named as Underwriter or
Underwriters in Schedule I and the term "you" shall mean the Underwriter or
Underwriters, if no underwriting syndicate is purchasing the Offered
Certificates, or the representative or representatives of the Underwriters, if
an underwriting syndicate is purchasing the Offered Certificates, as indicated
in Schedule I.
Payments of interest on the Class A and Class B Pass Through
Certificates to be issued by the related Pass Through Trust will be entitled
to the benefits of a separate liquidity facility for each such Pass Through
Trust. Kredietbank N.V., acting through its New York branch (the "Liquidity
Provider"), will enter into a separate revolving credit agreement (a "Liquidity
Facility") to be dated as of May 1, 1997 for the benefit of the holders of the
Class A and Class B Certificates issued by the related Pass Through Trust.
The Liquidity Provider and the holders of the Offered Certificates will be
entitled to the benefits of an Intercreditor Agreement to be dated as of May
1, 1997 (the "Intercreditor Agreement") among each Pass Through Trust, First
Security Bank, National Association, as Subordination Agent (the
"Subordination Agent"), and the Liquidity Provider.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (No. 333-07691) for the
registration of certain equipment trust certificates, pass through
certificates and other securities, including the Offered Certificates, under
the Securities Act of 1933, as amended (the "1933 Act"), and the offering
thereof from time to time in accordance with Rule 415 of the rules and
regulations of the Commission under the 1933 Act (the "1933 Act Regulations").
Such registration statement has been declared effective by the Commission and
the Basic Agreement has been qualified under the Trust Indenture Act of 1939,
as amended (the "1939 Act").
The Company has, pursuant to Rule 424 under the 1933 Act, filed with, or
transmitted for filing to, or shall within the required period of time
hereafter file with or transmit for filing to, the Commission a prospectus
supplement (the "Prospectus Supplement") specifically relating to the Offered
Certificates, together with a revised and restated prospectus relating to pass
through certificates covered by the above-referenced registration statement.
The term "Registration Statement" refers to such registration statement
in the form in which it became effective, including the exhibits thereto and
the documents incorporated by reference therein, as amended to the date
hereof. The term "Basic Prospectus" means the above-referenced revised and
restated prospectus relating to pass through certificates. The term
"Prospectus" means the Basic Prospectus supplemented by the Prospectus
Supplement. The term "Preliminary Prospectus" means a preliminary prospectus
supplement specifically relating to the Offered Certificates together with the
Basic Prospectus. As used herein, the terms "Basic Prospectus," "Prospectus"
and "Preliminary Prospectus" shall include in each case the documents, if any,
incorporated by reference therein. The terms "supplement" and "amendment" or
"amend" as used herein shall include all documents deemed to be incorporated
by reference in the Prospectus that have been filed subsequent to the date of
the Basic Prospectus by the Company with the Commission pursuant to the
Securities Exchange Act of 1934, as amended (the "1934 Act").
If the Company has filed an abbreviated registration statement to
register additional equipment trust certificates or pass through certificates
pursuant to Rule 462(b) under the 1933 Act, then any reference herein to the
term "Registration Statement" shall include such Rule 462(b) registration
statement.
Capitalized terms used but not otherwise defined in this Agreement shall
have the meanings specified in or pursuant to the Pass Through Agreement or
the Indenture relating to each related series of Equipment Certificates.
SECTION 1. Representations and Warranties of the Company.
(a) The Company represents and warrants to you and to each Underwriter
named in Schedule I, as of the date hereof, as follows:
(i) Due Incorporation and Qualification. The Company has been
duly incorporated and is validly existing as a corporation in good standing
under the laws of the State of Delaware, is a "citizen of the United States"
within the meaning of Title 49 of the United States Code, as amended (the
"Transportation Code"), holding an air operating certificate issued by the
Secretary of Transportation pursuant to Chapter 447 of the Transportation Code
for aircraft capable of carrying 10 or more individuals or 6,000 or more
pounds of cargo, has the corporate power and authority to own, lease and
operate its properties and to conduct its business as described in the
Prospectus; and is duly qualified to do business and is in good standing in
each jurisdiction in which such qualification is required, except where the
failure to so qualify would not have a material adverse effect on the
condition, financial or otherwise, or the earnings, business affairs or
business prospects of the Company and its subsidiaries considered as one
enterprise.
(ii) Subsidiaries. Each subsidiary of the Company which is a
significant subsidiary as defined in Rule 405 of Regulation C of the 1933 Act
Regulations (each a "Significant Subsidiary") has been duly incorporated and
is validly existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, has corporate power and authority to own,
lease and operate its properties and to conduct its business as described in
the Prospectus and is duly qualified as a foreign corporation to transact
business and is in good standing in each jurisdiction in which such
qualification is required, except where the failure to so qualify would not
have a material adverse effect on the condition, financial or otherwise, or
the earnings, business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise; and all of the issued and
outstanding capital stock of each Significant Subsidiary has been duly
authorized and validly issued, is fully paid and non-assessable and, except
for directors' qualifying shares (except as otherwise stated in the
Registration Statement), is owned by the Company, directly or through
subsidiaries, free and clear of any security interest, mortgage, pledge, lien,
encumbrance, claim or equity.
(iii) Registration Statement and Prospectus. At the time the
Registration Statement became effective, the Registration Statement complied,
and as of the date hereof does comply, in all material respects with the
requirements of the 1933 Act and the 1933 Act Regulations and the 1939 Act and
the rules and regulations of the Commission promulgated thereunder.
The Registration Statement, at the time it became effective, did
not, and at each time thereafter at which any amendment to the Registration
Statement becomes effective, will not, contain an untrue statement of a
material fact or omit to state a material fact required to be stated therein
or necessary to make the statements therein not misleading.
The Prospectus, as of the date hereof, does not contain an untrue
statement of a material fact or omit to state a material fact necessary in
order to make the statements therein, in light of the circumstances under
which they were made, not misleading; provided, however, that the
representations and warranties in this subsection shall not apply to
statements in or omissions from the Registration Statement or Prospectus made
in reliance upon and in conformity with information furnished to the Company
in writing by an Underwriter expressly for use in the Registration Statement
or Prospectus or to those parts of the Registration Statement which constitute
Statements of Eligibility and Qualification of Trustees (Form T-1) under the
1939 Act.
No stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that purpose have been
initiated or threatened by the Commission.
(iv) Incorporated Documents. The documents incorporated by
reference in the Prospectus, at the time they were or hereafter are filed with
the Commission, complied and will comply in all material respects with the
requirements of the 1934 Act and the rules and regulations promulgated
thereunder (the "1934 Act Regulations"), and, when read together and with the
other information in the Prospectus, did not and will not contain an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary in order to make the statements therein, in light
of the circumstances under which they were or are made, not misleading.
(v) Accountants. The accountants who certified the financial
statements included or incorporated by reference in the Prospectus are
independent public accountants as required by the 1933 Act and the 1933 Act
Regulations.
(vi) Financial Statements. The financial statements of the
Company included or incorporated by reference in the Prospectus and the
Registration Statement present fairly the financial position of the Company as
of the dates thereof and the results of operations, changes in common
stockholders' investment and cash flows of the Company, for the respective
periods covered thereby, all in conformity with generally accepted accounting
principles applied on a consistent basis throughout the entire period
involved; and the financial schedules included or incorporated by reference in
the Registration Statement meet the requirements of the 1933 Act Regulations
or the 1934 Act Regulations, as applicable.
(vii) Material Changes or Material Transactions. Except as stated
in the Prospectus, subsequent to the respective dates as of which information
is given in the Registration Statement and the Prospectus, the Company has not
incurred any liabilities or obligations, direct or contingent, or entered into
any transactions which are material to the Company, and there has not been any
material adverse change in the capital stock or short-term debt, or any
material increase in long-term debt of the Company, or any material adverse
change, or any development involving a prospective material adverse change, in
the condition (financial or other), business, prospects, net worth or results
of operations of the Company.
(viii) No Defaults; Regulatory Approvals. Neither the Company nor
any of its subsidiaries is in violation of its charter or in default in the
performance or observance of any material obligation, agreement, covenant or
condition contained in any contract, indenture, mortgage, loan agreement,
note, lease or other instrument to which it is a party or by which it or any
of them or their properties may be bound.
The execution and delivery of this Agreement, each Pass Through
Agreement and the other Operative Agreements to which the Company is or is to
be a party and the consummation of the transactions contemplated herein and
therein have been duly authorized by all necessary corporate action and duly
executed and delivered by the Company and will not conflict with or constitute
a breach of, or default under, or result in the creation or imposition of any
lien (other than as permitted under the Leases), charge or encumbrance upon
any property or assets of the Company or any of its subsidiaries pursuant to,
any contract, indenture, mortgage, loan agreement, note, lease or other
instrument to which the Company or any such subsidiary is a party or by which
it or any of them may be bound or to which any of the property or assets of
the Company or any such subsidiary is subject, which conflict, breach or
default would have, individually or in the aggregate with any other such
instances, a material adverse effect on the condition (financial or other),
business, prospects, net worth or results of operations of the Company and its
subsidiaries considered as one entity, nor will such action result in any
violation of the provisions of the charter or by-laws of the Company or any
law, administrative regulation or administrative or court order or decree
currently in effect or in effect at the time of execution and delivery of this
Agreement, each Pass Through Agreement and the other Operative Agreements and
applicable to the Company or any of its subsidiaries.
No consent, approval, authorization, order or decree of any court
or governmental agency or body is required for the consummation by the Company
of the transactions contemplated by this Agreement, any Pass Through Agreement
or any other Operative Agreement to which the Company is or is to be a party,
except such as may be required under the 1933 Act, the 1939 Act, the 1933 Act
Regulations or state securities or Blue Sky laws, the Transportation Code, and
the Uniform Commercial Code as in effect in Delaware and Tennessee.
(ix) Legal Proceedings. Except for matters described in the
Prospectus (as to which the Company can express no opinion at this time
concerning the Company's liability (if any) or the effect of any adverse
determination upon the business, condition (financial or otherwise) or
operations of the Company), there is no pending, or to the best knowledge of
any financial officer of the Company, threatened action or proceeding before
any court or administrative agency which individually (or in the aggregate in
the case of any group of related lawsuits) is expected to have a material
adverse effect on the financial condition of the Company or the ability of the
Company to perform its obligations under the Pass Through Agreements and the
other Operative Agreements to which the Company is a party.
(x) Compliance with Laws. The Company's business and operations
comply in all material respects with all laws and regulations applicable
thereto and there are no known, proposed or threatened changes in any laws or
regulations which would have a material adverse effect on the Company or the
manner in which it conducts its business. The Company possesses all valid and
effective certificates, licenses and permits required to conduct its business
as now conducted, except for instances which individually or in the aggregate
do not, or will not, have a material adverse effect on the condition
(financial or other), business, prospects or results of operations of the
Company.
(xi) Enforceability of Operative Agreements. Each of the Pass
Through Agreements and the other Operative Agreements to which the Company is
or is to be a party have been duly authorized by the Company, will each be
substantially in the form heretofore supplied to you and, when duly executed
and delivered by the Company and the other parties thereto, will each
constitute a valid and binding obligation of the Company, enforceable against
the Company in accordance with its terms. The Basic Agreement as executed is
substantially in the form filed as an exhibit to the Registration Statement
and has been duly qualified under the 1939 Act.
(xii) Validity of the Offered Certificates. When executed,
issued, authenticated and delivered pursuant to the provisions of the
applicable Pass Through Agreement and sold and paid for as provided in this
Agreement, each Class of Offered Certificates will constitute valid and
legally binding obligations of the Pass Through Trustee enforceable in
accordance with their terms; and the Certificateholders of such Offered
Certificates will be entitled to the benefits provided by such Pass Through
Agreement.
(xiii) Equipment Certificates. The Equipment Certificates to be
issued under each applicable Indenture, when duly executed and delivered by
the related Owner Trustee and duly authenticated by the Indenture Trustee in
accordance with the terms of such Indenture, will be duly issued under such
Indenture and will constitute the valid and binding obligations of such Owner
Trustee, and the Holders thereof will be entitled to the benefits of such
Indenture.
The representations and warranties made by the Company as to the
enforceability of the Pass Through Agreements, the Indentures, the Offered
Certificates, the Equipment Certificates and the other Operative Agreements
set forth in subparagraphs (xi), (xii) and (xiii) above are limited by
bankruptcy, insolvency, reorganization and other laws of general applicability
relating to or affecting enforcement of creditors' rights or by general equity
principles, and the enforceability of any Pass Through Agreement, Lease and
Indenture is also limited by applicable laws which may affect the remedies
provided therein but which do not affect the validity of such Pass Through
Agreement, Lease or Indenture or make such remedies inadequate for the
practical realization of the benefits intended to be provided thereby.
(b) Additional Certifications. Any certificate signed by any officer
of the Company and delivered to you or your counsel in connection with an
offering of the Offered Certificates shall be deemed a representation and
warranty by the Company to each Underwriter participating in such offering as
to the matters covered thereby on the date of such certificate unless
subsequently amended or supplemented subsequent thereto.
SECTION 2. Purchase and Sale.
(a) Subject to the terms and conditions set forth herein and in
Schedule II, if any, the Company agrees to cause the Pass Through Trustee to
sell to each Underwriter, and each Underwriter agrees, severally and not
jointly, to purchase from the Pass Through Trustee, at the purchase price
specified in Exhibit A hereto, the respective amounts of each Class of Offered
Certificates set forth opposite the name of such Underwriter in Schedule I.
It is understood that you propose to offer the Offered Certificates for sale
to the public as set forth in the Prospectus.
(b) Payment of the purchase price for any Offered Certificates to be
purchased by the Underwriters shall be made at either the Company's offices in
Memphis, Tennessee or the office of Davis Polk & Wardwell, 450 Lexington
Avenue, New York, New York 10017, or at such other place as shall be agreed
upon by you and the Company, at 9:00 A.M., New York City time, on the third
business day (unless postponed in accordance with the provisions of Section
10) following the date hereof or at such other date, time or location
specified in Schedule II, or as otherwise shall be agreed upon by you and the
Company (such time and date being referred to as a "Closing Time").
Delivery of the Offered Certificates shall be made for your account as
specified in Schedule II against payment by you of the purchase price thereof
to, or upon the order of, the Pass Through Trustee (or such other person as
the Company may direct) by wire transfer of immediately available funds.
Unless otherwise indicated on Schedule II, such Offered Certificates shall be
registered in the name of Cede & Co., as nominee for The Depository Trust
Company, and in such denominations, as you may request in writing at least two
business days prior to the Closing Time. Such Offered Certificates, which may
be in temporary form, will be made available for examination and packaging by
you in New York, New York, on or before the first business day prior to the
Closing Time or at such other time and place specified in Schedule II.
(c) As compensation to you for your commitments and obligations
hereunder in respect of the Offered Certificates, including your undertakings
to distribute Offered Certificates, the Company will pay (or cause to be paid)
to you an amount equal to that percentage of the aggregate amount of each
class of Offered Certificates purchased by you as set forth in Exhibit A as
the underwriting discounts and commissions. Such payment shall be made
simultaneously with the payment by you to the Pass Through Trustee of the
purchase price of the Offered Certificates as specified in Section 2(b)
hereof. Payment of such compensation shall be made by wire transfer of
immediately available funds.
SECTION 3. Covenants of the Company.
The Company covenants with each of you, and with each Underwriter
participating in the offering as follows:
(a) Prospectus Supplement. The Company has prepared a Preliminary
Prospectus, and immediately following the execution of this Agreement, the
Company will prepare a Prospectus Supplement in connection with the offering
of the Offered Certificates. The Company will promptly transmit copies of the
Prospectus Supplement to the Commission for filing pursuant to Rule 424 of the
1933 Act Regulations.
(b) Notice of Certain Events. The Company will notify you promptly
(i) of the effectiveness of any amendment to the Registration Statement, (ii)
of the transmittal to the Commission for filing of any supplement to the
Prospectus or any document to be filed pursuant to the 1934 Act which will be
incorporated by reference in the Prospectus, (iii) of the receipt of any
comments from the Commission with respect to the Registration Statement, the
Prospectus or the Prospectus Supplement relating in any way to the offer and
sale of the Offered Certificates, (iv) of any request by the Commission for
any amendment to the Registration Statement or any amendment or supplement to
the Prospectus or for additional information, and (v) of the issuance by the
Commission of any stop order suspending the effectiveness of the Registration
Statement or the initiation of any proceedings for that purpose.
(c) Notice of Certain Proposed Filings. The Company will give you
notice of its intention to file or prepare any amendment to the Registration
Statement or any amendment or supplement to the Prospectus, whether by the
filing of documents pursuant to the 1934 Act, the 1933 Act or otherwise, and
will furnish you with copies of any such amendment or supplement or other
documents proposed to be filed or prepared a reasonable time in advance of
such proposed filing or preparation, as the case may be.
(d) Copies of the Registration Statement and the Prospectus. The
Company will deliver to you as many signed and conformed copies of the
Registration Statement (as originally filed) and of each amendment thereto
(including exhibits filed therewith or incorporated by reference therein and
documents incorporated by reference in the Prospectus) as you may reasonably
request. The Company will furnish to you as many copies of the Prospectus (as
amended or supplemented) as you shall reasonably request so long as you are
required to deliver a Prospectus in connection with sales or solicitations of
offers to purchase the Offered Certificates.
(e) Revisions of Prospectus -- Material Changes. If at any time when
the Prospectus is required by the 1933 Act to be delivered in connection with
sales of the Offered Certificates any event shall occur or condition exist as
a result of which it is necessary, in the reasonable opinion of counsel for
the Company, to further amend or supplement the Prospectus in order that the
Prospectus will not include an untrue statement of a material fact or omit to
state any material fact necessary in order to make the statements therein not
misleading in the light of the circumstances existing at the time it is
delivered to a purchaser, or if it shall be necessary, in the reasonable
opinion of such counsel, at any such time to amend or supplement the
Registration Statement or the Prospectus in order to comply with the
requirements of the 1933 Act or the 1933 Act Regulations the Company will
promptly prepare and file with the Commission such amendment or supplement,
whether by filing documents pursuant to the 1934 Act, the 1933 Act or
otherwise, as may be necessary to correct such untrue statement or omission or
to make the Registration Statement and Prospectus comply with such
requirements.
(f) Earnings Statements. The Company will make generally available to
its security holders as soon as practicable after the close of the period
covered thereby, an earnings statement (in form complying with the provisions
of Rule 158 under the 1933 Act) covering each twelve-month period beginning,
in each case, not later than the first day of the Company's fiscal quarter
next following the "effective date" (as defined in such Rule 158) of the
Registration Statement with respect to each sale of Offered Certificates.
(g) Blue Sky Qualifications. The Company will endeavor, in
cooperation with you, to qualify the Offered Certificates for offering and
sale under the applicable securities laws of such states and other
jurisdictions of the United States as the Underwriters may designate, and will
maintain such qualifications in effect for so long as may be required for the
distribution of the Offered Certificates; provided, however, that the Company
shall not be obligated to file any general consent to service of process or to
qualify as a foreign corporation or to subject itself to taxation as doing
business in any jurisdiction in which it is not otherwise required to be so
qualified. The Company will file such statements and reports as may be
required by the laws of each jurisdiction in which the Offered Certificates
have been qualified as provided above.
(h) 1934 Act Filings. The Company, during the period when the
Prospectus is required to be delivered under the 1933 Act, will file promptly
all documents required to be filed with the Commission pursuant to Section
13(a), 13(c), 14 or 15(d) of the 1934 Act.
(i) Stand-Off Agreement. The Company will not, between the date of
this Agreement and the Closing Time, offer or sell, or enter into any
agreement to sell, any equipment notes, pass through certificates, equipment
trust certificates or equipment purchase certificates secured by aircraft
owned or leased by the Company (or rights relating thereto) unless the Company
has provided the Underwriters at least two business days' notice thereof.
SECTION 4. Payment of Expenses.
The Company will pay (or cause to be paid) all expenses incident to the
performance of its obligations under this Agreement, including:
(i) the preparation and filing of the Registration Statement and
all amendments thereto, the Preliminary Prospectus, if any, and the Prospectus
and any amendments or supplements thereto;
(ii) the filing of this Agreement;
(iii) the preparation, issuance and delivery of the Offered
Certificates;
(iv) the reasonable fees and disbursements of the Company's
accountants and counsel, of the Pass Through Trustee, the Subordination Agent,
each Liquidity Provider, the related Owner Trustees and the Indenture Trustee
and their respective counsel, and of any registrar, paying agent and
authenticating agent;
(v) the qualification of the Offered Certificates under
securities laws in accordance with the provisions of Section 3(g), including
filing fees and the reasonable fees and disbursements of counsel to the
Underwriters in connection therewith and in connection with the preparation of
any Blue Sky Survey and any Legal Investment Survey;
(vi) the printing and delivery to the Underwriters in quantities
as hereinabove stated of copies of the Registration Statement and any
amendments thereto, and of the Prospectus and any amendments or supplements
thereto, and the delivery by the Underwriters of the Prospectus and any
amendments or supplements thereto in connection with solicitations or
confirmations of sales of the Offered Certificates;
(vii) the preparation and delivery to the Underwriters of copies
of the Pass Through Agreements and the other Operative Agreements, including
all expenses incident to the performance of the Company's obligations under
the Pass Through Agreements, Participation Agreements, Indentures, Leases and
each of the other agreements and instruments referred to in the Indentures and
Participation Agreements;
(viii) any fees charged by rating agencies for the rating of the
Offered Certificates; and
(ix) all fees and disbursements of your counsel, as heretofore
agreed.
If this Agreement is terminated by you in accordance with the provisions
of Section 5 or clause (i) of Section 9 hereof, the Company shall reimburse
upon demand the Underwriters for all of their out-of-pocket expenses,
including the reasonable fees and disbursements of counsel for the
Underwriters that shall have been incurred by you in connection with the
proposed purchase and sale of the Offered Certificates.
SECTION 5. Conditions of Underwriters' Obligations.
The several obligations of the Underwriters to purchase the Offered
Certificates pursuant to this Agreement will be subject at all times to the
accuracy of the representations and warranties on the part of the Company
herein, to the accuracy of the statements of the Company's officers made in
any certificate furnished pursuant to the provisions hereof, to the
performance and observance by the Company of all covenants and agreements
contained herein, or in Schedule II hereto, on its part to be performed and
observed and to the following additional conditions precedent:
(a) Stop Order; Ratings Change; etc. At the Closing Time, (i) no stop
order suspending the effectiveness of the Registration Statement shall have
been issued under the 1933 Act or proceedings therefor initiated or threatened
by the Commission, (ii) the rating assigned as of the date of this Agreement
by any "nationally recognized statistical rating organization," as such term
is defined for purposes of Rule 436(g) under the 1933 Act Regulations, to any
debt securities of the Company (including for purposes of this Section
5(a)(ii) any rating indicated by the Company as of the date of this Agreement
as the rating orally confirmed to the Company by any such rating organization
as the rating to be assigned to the Offered Certificates) shall not have been
lowered since the execution of this Agreement nor shall any such rating
organization have publicly announced that it has placed any debt securities of
the Company on what is commonly termed a "watch list" for possible
downgrading, and (iii) there shall not have come to your attention any facts
that would cause you to believe that the Prospectus, including the Prospectus
Supplement, at the time it was required to be delivered to a purchaser of the
Offered Certificates, contained an untrue statement of a material fact or
omitted to state a material fact necessary in order to make the statements
therein, in light of the circumstances existing at such time, not misleading.
(b) Legal Opinions. At the Closing Time, you shall have received the
following documents:
(1) Opinion of Special Counsel to the Company. The opinion of
Davis Polk & Wardwell, special counsel to the Company, dated as of such date,
in form and substance satisfactory to you, to the effect set forth in Exhibit
B and the opinions of such counsel required to be delivered pursuant to each
Participation Agreement, dated as of such date, in form and substance
satisfactory to you, to the effect set forth in Exhibits C-1 and C-2.
(2) Opinion of Company Counsel. The opinion of the Executive
Vice President, General Counsel and Secretary of the Company or any Vice
President in the Legal and Regulatory Division of the Company, dated as of
such date, in form and substance reasonably satisfactory to you, to the effect
as set forth in Exhibit D.
(3) Opinion of Counsel to the Underwriters. The opinion of
Shearman & Sterling, counsel to the Underwriters, with respect to such matters
as you may reasonably request.
(c) Officer Certificate. At the Closing Time, there shall not have
been, since the respective dates as of which information is given in the
Registration Statement and the Prospectus, any material adverse change in the
condition (financial or otherwise) of the Company, or in the earnings or
business affairs of the Company; and you shall have received a certificate of
any Vice President of the Company, dated as of the Closing Time, to the effect
(i) that there has been no such material adverse change, (ii) that the other
representations and warranties of the Company contained in Section 1 are true
and correct with the same force and effect as though expressly made at and as
of the date of such certificate, except to the extent that such
representations and warranties expressly relate to an earlier date or later
date (in which case such representations and warranties are true and correct
on and as of such earlier date or will be true and correct on and as of such
later date, as the case may be), (iii) that the Company has made or caused to
be made any required filing of the Prospectus pursuant to Rule 424(b) in the
manner and within the time period required by Rule 424(b), and (iv) that the
Company has complied with all agreements and satisfied all conditions on its
part to be performed or satisfied at or prior to the date of such certificate.
The officer signing and delivering this certificate may rely upon the best of
his or her knowledge as to proceedings threatened.
(d) Comfort Letter. At the time of the execution of this Agreement
and at the Closing Time, you shall have received a letter from Arthur Andersen
LLP or their successors as the Company's independent accountants (the
"Independent Accountants"), dated as of the date hereof and of the Closing
Time, as the case may be, in form and substance satisfactory to you to the
effect that:
(i) they are independent public accountants within the meaning
of the 1933 Act and the 1933 Act Regulations;
(ii) in their opinion the Company's financial statements and
schedules included or incorporated by reference in the Registration Statement
and Prospectus and covered by their reports included or incorporated therein
comply as to form in all material respects with the applicable accounting
requirements of the 1933 Act and the 1933 Act Regulations or the 1934 Act and
the 1934 Act Regulations, as the case may be;
(iii) they have conducted reviews of the unaudited interim
consolidated financial information of the Company included in the Company's
Quarterly Reports on Form 10-Q incorporated in the Registration Statement and
Prospectus in compliance with the standards for such reviews promulgated by
the American Institute of Certified Public Accountants;
(iv) on the basis of a reading of the financial statements and
schedules of the Company included or incorporated in the Prospectus and the
Registration Statement, and the latest available unaudited interim financial
statements of the Company, inquiries of officials of the Company responsible
for financial and accounting matters, and other specified procedures and
inquiries, nothing has come to their attention that caused them to believe
that:
(A) the unaudited financial statements of the Company
included or incorporated in the Prospectus and the Registration
Statement do not comply as to form in all material respects with the
applicable accounting requirements of the 1933 Act and the 1933 Act
Regulations or the 1934 Act and the 1934 Act Regulations thereunder, as
the case may be, or that such unaudited financial statements are not
presented fairly in conformity with generally accepted accounting
principles;
(B) with respect to the period subsequent to the date of
the most recent financial statements incorporated in the Registration
Statement and the Prospectus, as of a specified date not more than five
business days prior to the date of delivery of such letter, there has
been any change in the common or preferred stock or long-term debt of
the Company or, as of such date, there has been any decrease in assets
or common stockholders' investment, in each case as compared with
amounts shown in the most recent consolidated balance sheet of the
Company included or incorporated in the Registration Statement and the
Prospectus, except in each case for changes or decreases which the
Prospectus discloses have occurred or may occur or which are described
in such letter; or
(C) for the period from the date of the most recent
financial statements incorporated in the Registration Statement and the
Prospectus to such specified date, there was any decrease in operating
revenues, operating income, income before taxes or net income of the
Company in each case as compared with the comparable period of the
preceding year, except in each case for decreases which the Prospectus
discloses have occurred or may occur or which are described in such
letter; and
(v) in addition to their audit referred to in their reports
included or incorporated by reference in the Registration Statement and the
Prospectus and the reviews, inquiries and procedures referred to in clauses
(iii) and (iv) above, such letter shall state that Arthur Andersen LLP has
performed other specified procedures, with respect to certain numerical data
and information included or incorporated in the Registration Statement and the
Prospectus, as are requested by an Underwriter and specified in such letter
and have found such data and information to be in agreement with the
accounting records of or analyses prepared by the Company.
(e) Satisfaction of Conditions Precedent in Participation Agreements.
At the Closing Time, all conditions precedent specified in each Participation
Agreement with respect to the refunding or funding of the related Equipment
Certificates, as the case may be, shall have been satisfied; the
representations and warranties of the Company, the Owner Trustee, the Pass
Through Trustee and the Indenture Trustee contained in each of the
Participation Agreements shall be accurate as of the Closing Time (except to
the extent that they relate solely to an earlier date in which case they shall
be accurate as of such earlier date) and you shall have received certificates
of the Company and appropriate officers of the respective Owner Trustees, Pass
Through Trustees and Indenture Trustees, dated as of the Closing Time, to such
effect; and you shall have received a copy of each opinion required to be
delivered under each of the Participation Agreements dated as of the Closing
Time, and addressed to you, and of such other documents furnished in
connection with the fulfillment of such conditions as you may reasonably
request.
(f) Other Documents. At the Closing Time, counsel for the
Underwriters shall have been furnished with such documents and opinions as
such counsel may reasonably require for the purpose of enabling such counsel
to pass upon the issuance and sale of Offered Certificates as herein
contemplated and related proceedings, or in order to evidence the accuracy and
completeness of any of the representations and warranties, or the fulfillment
of any of the conditions, herein contained; and all proceedings taken by the
Company in connection with the issuance and sale of Offered Certificates as
herein contemplated shall be satisfactory in form and substance to you.
SECTION 6. Indemnification.
(a) The Company agrees to indemnify and hold harmless each Underwriter
and each person, if any, who controls any Underwriter within the meaning of
Section 15 of the 1933 Act as follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever, arising out of any untrue statement of a material fact
contained in the Registration Statement (or any amendment thereto), or the
omission therefrom of a material fact required to be stated therein or
necessary to make the statements therein not misleading or arising out of or
based upon any untrue statement of a material fact contained in the Prospectus
(or any amendment or supplement thereto) or the omission therefrom of a
material fact necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever to the extent of the aggregate amount paid in settlement of
any litigation, or investigation or proceeding by any governmental agency or
body, commenced or threatened, or of any claim whatsoever arising out of or
based upon any such untrue statement or omission, if such settlement is
effected with the written consent of the Company; and
(iii) against any and all expense whatsoever, reasonably incurred
in investigating, preparing or defending against any litigation, or
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever arising out of or based upon any such
untrue statement or omission, to the extent that any such expense is not paid
under (i) or (ii) above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission made in reliance upon and in conformity with written
information furnished to the Company by any Underwriter expressly for use in
the Registration Statement (or any amendment thereto) or the Prospectus (or
any amendment or supplement thereto), or made in reliance upon the Statements
of Eligibility and Qualification of Trustees (Form T-1) under the 1939 Act
filed as exhibits to the Registration Statement; and provided, further, that
the foregoing indemnity agreement, with respect to any Preliminary Prospectus
shall not inure to the benefit of any Underwriter from whom the person
asserting any such losses, claims, damages or liabilities purchased Offered
Certificates, or any person controlling such Underwriter, if a copy of the
Prospectus (as then amended or supplemented if the Company shall have
furnished any amendments or supplements thereto) was not sent or given by or
on behalf of such Underwriter to such person, if required by law so to have
been delivered, at or prior to the written confirmation of the sale of the
Offered Certificates to such person, and if the Prospectus (as so amended or
supplemented) would have cured the defect giving rise to such losses, claims,
damages or liabilities.
(b) Each Underwriter severally agrees to indemnify and hold harmless
the Company, its directors and officers and each person, if any, who controls
the Company within the meaning of Section 15 of the 1933 Act against any and
all loss, liability, claim, damage and expense described in the indemnity
contained in subsection (a) of this Section, as incurred, but only with
respect to untrue statements or omissions made in the Registration Statement
(or any amendment thereto) or the Prospectus (or any amendment or supplement
thereto) in reliance upon and in conformity with written information furnished
to the Company by such Underwriters through you expressly for use in the
Registration Statement (or any amendment thereto) or the Prospectus (or any
amendment or supplement thereto).
(c) Each indemnified party shall give prompt notice to each
indemnifying party of any action commenced against it in respect of which
indemnity may be sought hereunder, but failure to so notify an indemnifying
party shall not relieve such indemnifying party from any liability which it
may have otherwise than on account of this indemnity agreement. An
indemnifying party may participate at its own expense in the defense of such
action. In no event shall the indemnifying parties be liable for the fees and
expenses of more than one counsel (in addition to any local counsel) separate
from their own counsel for all indemnified parties in connection with any one
action or separate but similar or related actions in the same jurisdiction
arising out of the same general allegations or circumstances.
SECTION 7. Contribution.
In order to provide for just and equitable contribution in circumstances
in which the indemnity agreement provided for in Section 6 is for any reason
held to be unenforceable by the indemnified parties although applicable in
accordance with its terms, the Company and the Underwriters of each offering
of Offered Certificates shall contribute to the aggregate losses, liabilities,
claims, damages and expenses of the nature contemplated by said indemnity
agreement incurred by the Company and one or more of the Underwriters in
respect of such offering, as incurred, in such proportions that the
Underwriters are responsible for that portion represented by the percentage
that the underwriting discount appearing on the cover page of the Prospectus
in respect of such offering bears to the initial public offering price
appearing thereon and the Company is responsible for the balance; provided,
however, that no person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the 1933 Act) shall be entitled to contribution
from any person who was not guilty of such fraudulent misrepresentation.
For purposes of this Section, each person, if any, who controls an
Underwriter within the meaning of Section 15 of the 1933 Act shall have the
same rights to contribution as such Underwriter, and each director of the
Company, each officer of the Company who signed the Registration Statement,
and each person, if any, who controls the Company within the meaning of
Section 15 of the 1933 Act shall have the same rights to contribution as the
Company.
SECTION 8. Representations, Warranties and Agreements to Survive Delivery.
All representations, warranties and agreements contained in this
Agreement, or contained in certificates of officers of the Company submitted
pursuant hereto, shall remain operative and in full force and effect,
regardless of any investigation made by or on behalf of any Underwriter or
controlling person, or by or on behalf of the Company, and shall survive each
delivery of and payment for any of the Offered Certificates.
SECTION 9. Termination of Agreement.
You may terminate this Agreement, immediately upon notice to the
Company, at any time prior to the Closing Time (i) if there has been, since
the date hereof or since the respective dates as of which information is given
in the Registration Statement, any material adverse change in the condition,
financial or otherwise, or in the earnings or business affairs of the Company,
or (ii) if there shall have occurred any material adverse change in the
financial markets in the United States or any outbreak or escalation of
hostilities or other national or international calamity or crisis, the effect
of which shall be such as to make it, in your judgment, impracticable to
market the Offered Certificates or enforce contracts for the sale of the
Offered Certificates, or (iii) if trading in any securities of the Company
shall have been suspended by the Commission or a national securities exchange,
or if trading generally on either the American Stock Exchange or the New York
Stock Exchange shall have been suspended, or minimum or maximum prices for
trading shall have been fixed, or maximum ranges for prices for securities
shall have been required, by either of said exchanges or by order of the
Commission or any other governmental authority, or if a banking moratorium
shall have been declared by either federal or New York authorities.
In the event of any termination of this Agreement, the covenant set
forth in Section 3(f) hereof, the provisions of Section 4 hereof, the
indemnity and contribution agreements set forth in Sections 6 and 7 hereof,
and the provisions of Sections 8 and 13 hereof shall remain in effect.
SECTION 10. Default by One of the Underwriters.
If any Underwriter shall fail at the Closing Time to purchase the
Offered Certificates which it is obligated to purchase hereunder (the
"Defaulted Certificates"), and the aggregate amount of Defaulted Certificates
is not more than one-tenth of the aggregate amount of the Offered Certificates
to be purchased on such date, the other Underwriters shall be obligated
severally in the proportions that the amount of the Offered Certificates set
forth opposite their respective names in Schedule I hereto bears to the
aggregate amount of Offered Certificates set forth opposite the names of all
such non-defaulting underwriters to purchase the Defaulted Certificates;
provided that in no event shall the amount of Defaulted Certificates that any
Underwriter has agreed to purchase pursuant to this Agreement be increased by
an amount in excess of one-ninth of such amount of Offered Certificates
without the written consent of such Underwriter. If the aggregate amount of
Defaulted Certificates is more than one-tenth of the aggregate amount of the
Offered Certificates to be purchased on the Closing Date, and arrangements
satisfactory to the Underwriters and the Company for the purchase of such
Defaulted Certificates are not made within 36 hours after such default, this
Agreement shall terminate without liability on the part of any non-defaulting
Underwriters or the Company.
No action taken pursuant to this Section shall relieve a defaulting
Underwriter from liability in respect of its default under this Agreement.
In the event of any such default which does not result in a termination
of this Agreement, either the non-defaulting Underwriters or the Company shall
have the right to postpone the Closing Time for a period not exceeding seven
days in order to effect any required changes in the Registration Statement or
Prospectus or in any other documents or arrangements.
SECTION 11. Notices.
All notices and other communications hereunder shall be in writing and
shall be deemed to have been duly given if mailed, delivered by Federal
Express service or transmitted by any facsimile communication. Notices to the
Underwriters shall be directed, on behalf of all of the Underwriters, to
Morgan Stanley & Co. Incorporated, 1585 Broadway, New York, New York 10036,
Attention: Equipment Finance Group, with copies thereof directed to Joel S.
Klaperman, Shearman & Sterling, 599 Lexington Avenue, New York, New York
10022. Notices to the Company shall be directed to it at 2007 Corporate
Avenue, Memphis, Tennessee 38132 (if by Federal Express service) or P.O. Box
727, Memphis, Tennessee 38194 (if by mail), Attention: Vice President and
Treasurer, with copies thereof directed to the Legal Department of the Company
at 1980 Nonconnah Drive, Memphis, Tennessee 38132 (if by Federal Express
Service) or P.O. Box 727, Memphis, Tennessee 38194 (if by mail), Attention:
Managing Director -- Securities and Corporate Law.
SECTION 12. Parties.
This Agreement shall inure to the benefit of and be binding upon you and
the Company and any Underwriter who becomes a party hereto and their
respective successors. Nothing expressed or mentioned in this Agreement is
intended or shall be construed to give any person, firm or corporation, other
than the parties hereto and their respective successors and the controlling
persons and officers and directors referred to in Sections 6 and 7 and their
heirs and legal representatives, any legal or equitable right, remedy or claim
under or in respect of this Agreement or any provision herein contained. This
Agreement and all conditions and provisions hereof are intended to be for the
sole and exclusive benefit of the parties hereto, their respective successors
and said controlling persons and officers and directors and their heirs and
legal representatives, and for the benefit of no other person, firm or
corporation. No purchaser of Offered Certificates from any Underwriter shall
be deemed to be a successor by reason merely of such purchase.
SECTION 13. Governing Law.
This Agreement and the rights and obligations of the parties created
hereby and thereby shall be governed by and construed in accordance with the
laws of the State of New York applicable to agreements made and to be
performed in such state. Any suit, action or proceeding brought by the
Company against an Underwriter in connection with or arising under this
Agreement shall be brought solely in the state or federal court of appropriate
jurisdiction located in the Borough of Manhattan, The City of New York.
* * *
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof,
whereupon this instrument along with all counterparts will become a binding
agreement between you and the Company in accordance with its terms.
Very truly yours,
FEDERAL EXPRESS CORPORATION
/s/ ROBERT D. HENNING
By: _______________________________
Name: Robert D. Henning
Title: Assistant Treasurer and
Managing Director,
Structured Finance
CONFIRMED AND ACCEPTED, as of
the date first above written:
MORGAN STANLEY & CO. INCORPORATED
FIRST CHICAGO CAPITAL MARKETS, INC.
GOLDMAN, SACHS & CO.
J.P. MORGAN SECURITIES INC.
By: Morgan Stanley & Co. Incorporated
/s/ MORGAN STANLEY & CO. INCORPORATED
By: ________________________________________
Acting on behalf of themselves and the
other named Underwriters
Exhibit A
FEDERAL EXPRESS CORPORATION
Pass Through Certificates, 1997-1-A
Pass Through Certificates, 1997-1-B
Pass Through Certificates, 1997-1-C
[CAPTION]
<TABLE>
Aggregate
1997 Pass Underwriting
Through Final Discounts
Certificates Purchase Interest Expected Principal and
Designation Price Rate Distribution Date Amount Commissions
- ----------------- -------------- ---------- ------------------- -------------- --------------
<S> <C> <C> <C> <C> <C>
1997-1-A $310,854,000 7.50% January 15, 2018 $310,854,000
1997-1-B $115,800,000 7.52% January 15, 2018 $115,800,000
1997-1-C $129,185,000 7.65% January 15, 2014 $129,185,000
TOTAL $555,839,000 $555,839,000 $3,612,953
</TABLE>
Exhibit B
Opinion of Davis Polk & Wardwell,
Special Counsel for the Company
The opinion of Davis Polk & Wardwell, special counsel for the Company,
to be delivered pursuant to Section 5(b)(1) of the Underwriting Agreement
shall be to the effect that:
1. The Underwriting Agreement has been duly authorized, executed
and delivered by the Company.
2. The Registration Statement has become effective under the
1933 Act and the Basic Agreement has been duly qualified under the 1939
Act.
3. Although we are not aware of any judicial authority, none of
the Pass Through Trusts is required to be registered under the
Investment Company Act of 1940, as amended.
4. The Pass Through Trusts will not themselves be subject to
federal income tax. With respect to all other matters addressed in the
Basic Prospectus under the caption "Federal Income Tax Consequences," we
are also of the opinions ascribed to us therein.
We have considered the matters required to be included in the
Registration Statement and the Prospectus and the information contained
therein. In our opinion (i) the statements in the Basic Prospectus under the
captions "Description of the Pass Through Certificates" and "Description of
the Equipment Certificates" and in the Prospectus Supplement under the
captions "Description of the Pass Through Certificates", "Description of the
Equipment Trust Certificates", "Description of the Liquidity Facilities",
"Description of the Intercreditor Agreement" and "ERISA Considerations"
insofar as such statements constitute a summary of the Pass Through Agreement,
the Leases, the Liquidity Facilities, the Intercreditor Agreement, the
Participation Agreements and the Indentures, fairly present the information
called for by the 1933 Act and the rules and regulations of the SEC under the
1933 Act (the "1933 Act Regulations") with respect thereto and fairly
summarize the material provisions thereof and (ii) the statements in the Basic
Prospectus in the fourth paragraph under the caption "Description of the
Equipment Certificates - Security" and in the Prospectus Supplement in the
ninth paragraph under the caption "Description of the Equipment Trust
Certificates - Remedies," insofar as such statements constitute a description
of Section 1110 of the Bankruptcy Code as such Section would be applicable to
the Equipment Certificates, fairly summarize the material provisions of such
Section as such Section would be applicable to the Equipment Certificates.
The Pass Through Certificates conform in all material respects to the summary
descriptions thereof contained in the Prospectus. We have not ourselves
checked the accuracy or completeness of, or otherwise verified, the
information furnished with respect to other matters in the Registration
Statement or the Prospectus. We have generally reviewed and discussed with
certain officers and employees of the Company, its independent public
accountants and your representatives and counsel the information furnished,
whether or not subject to our check and verification. On the basis of such
consideration, review and discussion, but without independent check or
verification, except as stated, (i) we are of the opinion that the
Registration Statement and the Prospectus (except for the financial statements
and other financial information set forth or incorporated by reference
therein, as to which we are not called upon to express any opinion) comply as
to form in all material respects with the 1933 Act and the applicable 1933 Act
Regulations and (ii) we have no reason to believe that the Registration
Statement and the Prospectus included therein (except for the financial
statements and other financial information set forth or incorporated by
reference therein and the Statement of Eligibility and Qualification (Form
T-1) under the 1939 Act of First Security Bank, National Association, as to
all of which we are not called upon to express a belief) at the time the
Registration Statement became effective contained any untrue statement of a
material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not misleading, or that,
as of the Closing Time, either the Registration Statement or the Prospectus
(except for the financial statements and other financial information set forth
or incorporated by reference therein, as to which we are not called upon to
express a belief), contains an untrue statement of a material fact or omits to
state a material fact necessary to make the statements therein, in light of
the circumstances in which they were made, not misleading.
The foregoing opinions are subject to the following qualifications:
(a) We are members of the Bar of the State of New York and the
foregoing opinions are limited to the laws of the State of New York, the
federal laws of the United States of America and the General Corporation Law
of the State of Delaware.
(b) We express no opinion as to the scope, effect or other
matters arising under the Transportation Code, or the rules and regulations
thereunder or as to matters involving filing and recording with the Federal
Aviation Administration.
(c) This opinion is issued solely to you in connection with the
above matter and may not be relied upon by you for any other purpose or relied
upon by or furnished to any other person without our prior written consent.
Exhibit C-1
[Letterhead of Davis Polk & Wardwell]
May __, 1997
To each of the Parties
named on the Schedule hereto
Re: Federal Express Corporation Trust No. N587FE
Ladies and Gentlemen:
We have acted as special counsel for Federal Express Corporation,
a Delaware
corporation ("Federal Express"), in connection with the transactions
contemplated by the Participation Agreement (Federal Express Corporation Trust
No. N587FE), dated as of December 1, 1996, as amended and restated as of May
1, 1997 (the "Participation Agreement"), among Federal Express, as Lessee,
Comerica Leasing Corporation and Norwest Bank Minnesota, National Association,
as Owner Participants, Wilmington Trust Company, not in its individual
capacity but solely as Owner Trustee, State Street Bank and Trust Company, not
in its individual capacity but solely as Original Indenture Trustee, Morgan
Guaranty Trust Company of New York, as Original Loan Participant, and First
Security Bank, National Association, not in its individual capacity, except as
otherwise stated, but solely as Indenture Trustee, Pass Through Trustee and as
Subordination Agent, relating to the Aircraft. This opinion is being
delivered pursuant to Section 4.01(l)(vi) of the Participation Agreement.
Capitalized terms not otherwise defined herein have the meanings assigned
thereto in the Participation Agreement.
Pursuant to the Original Participation Agreement, the Owner
Participant and the Original Loan Participants participated in the payment of
the Purchase Price of one McDonnell Douglas MD-11F Aircraft which was
purchased by the Owner Trustee pursuant to the Bills of Sale, subjected to the
Lien of the Original Indenture and leased to Federal Express under the
Original Lease. The Participation Agreement provides, among other things, for
the refinancing of the Original Loan Certificates using the proceeds from the
public offering of Pass Through Certificates. Three Classes of Pass Through
Certificates will be issued by separate Pass Through Trusts, each formed to
acquire, among other securities, the Certificates bearing a particular
interest rate and having a particular Maturity that will be issued under the
Indenture.
In connection with the opinions expressed below, we have examined
executed counterparts of the Operative Agreements, the Pass Through
Certificates, the Pass Through Agreement and each Series Supplement (the
"Transaction Agreements"). We have also examined originals, or copies
certified to our satisfaction, of such other agreements, documents,
certificates and statements of governmental officials and corporate officers
as we have deemed necessary or advisable as a basis for such opinions. In
such examination, we have assumed the genuineness of all signatures and the
authenticity of all documents submitted to us as originals and the conformity
with the originals of all documents submitted to us as copies.
As to any facts material to our opinions expressed below, we have,
with your consent, relied on the representations and warranties made in or
pursuant to the Participation Agreement and the other documents referred to
therein, the accuracy of which we have not independently verified. In
addition, we have, when relevant facts were not independently established by
us, relied, to the extent we deemed such reliance proper, upon certificates of
public officials and certificates, telegrams and other written or telephoned
statements of officers of the parties referred to herein.
Based on the foregoing, it is our opinion that:
1. With respect to that portion, if any, of the Aircraft and
the other property included in the Lessor's Estate as may not be covered by
the recording system established by the FAA pursuant to Section 44107 of the
Transportation Code, no filing or recording of any document or other action
was or is necessary in order to establish the Owner Trustee's title thereto
and interest therein as against Federal Express and any third parties.
2. The Lease creates a valid leasehold interest in the
Aircraft, the entitlement thereof to the benefits of recordation under the
Transportation Code being subject to the due and timely filing and, where
appropriate, recording of (A) the Lease (with the Indenture attached as an
exhibit), (B) the Indenture and (C) the Trust Agreement.
3. Assuming (i) the due authorization, execution and delivery
of the Transaction Agreements by each of the parties to each such document
(other than Federal Express), (ii) each such party has full power and legal
right to enter into and perform its respective obligations under the
Transaction Agreements, (iii) that the execution, delivery and performance by
each of the Transaction Agreements by each of the parties thereto will not
violate the respective parties' constituent documents, (iv) the due
authorization, execution, issuance and delivery by the Owner Trustee, and the
due authentication by the Indenture Trustee, of the Certificates to be issued
under the Indenture in accordance with the terms of the Indenture, (v) that
the Original Loan Certificates are delivered by the Original Loan Participants
to the Indenture Trustee for cancellation and are cancelled, (vi) the due
authorization, execution, issuance, delivery and authentication by the Pass
Through Trustee of the Pass Through Certificates to be issued under the Pass
Through Agreement and the Series Supplement relating to such Pass Through
Certificates, in each case in accordance with the terms of the Pass Through
Agreement and such Series Supplement, and (vii) that the form of each
Transaction Agreement is in compliance with all applicable laws and
governmental rules and regulations (other than the laws of the United States
and the State of New York), then: (A) to the extent governed by New York law,
each Transaction Agreement in form constitutes a legal, valid and binding
agreement of each party thereto enforceable against each such party in
accordance with its terms; (B) the Original Indenture created, and the
Indenture creates, for the benefit of the Holders, the security interest in
the Trust Indenture Estate that they purport to create; (C) the Certificates,
when issued to and acquired by the Pass Through Trustee, will be legal, valid
and binding obligations of the Owner Trustee enforceable against the Owner
Trustee in accordance with their terms and the terms of the Indenture and will
be entitled to the benefits of the Indenture, including the benefit of the
security interest created thereby; (D) the Pass Through Certificates, when
issued to and acquired by the Underwriters in accordance with the Underwriting
Agreement, will be legal, valid and binding obligations of the Pass Through
Trustee enforceable against the Pass Through Trustee in accordance with their
terms and will be entitled to the benefits of the Pass Through Agreement and
the Series Supplement relating thereto; and (E) the beneficial interest of the
Owner Participant under the Trust Agreement in and to the properties which are
part of the Trust Indenture Estate is subject, to the extent provided in the
Indenture, to the Lien of the Indenture in favor of the Holders. The opinions
set forth in this paragraph 3 are subject to the due filing and, where
appropriate, recording with the FAA of the documents referred to in paragraph
2 above.
4. (a) Each of the Transaction Agreements to which Federal
Express is a party has been duly authorized, executed and delivered by Federal
Express.
(b) The execution, delivery and performance by Federal Express of
each of the Transaction Agreements to which Federal Express is a party do not,
or did not on the date of execution thereof, violate, and fully comply, or did
fully comply on the date of execution thereof, with, any laws and governmental
rules and regulations of the State of New York that may be applicable to
Federal Express. The opinion set forth in this paragraph 4(b) is rendered
without regard to the taking of any action or the conduct of any other
business by Federal Express in the State of New York other than the
transactions contemplated by the Transaction Agreements.
5. The execution, delivery and performance of the Participation
Agreement, the Trust Agreement, the Indenture and the Lease by the Owner
Trustee in its individual or trust capacity, as the case may be, and the
issuance, execution, delivery and performance of the Certificates by the Owner
Trustee in its trust capacity do not violate, and fully comply with, any laws
and governmental rules and regulations of the State of New York that may be
applicable to the Owner Trustee in its individual or trust capacity, as the
case may be. The opinion set forth in this paragraph 5 is rendered without
regard to the effect, if any, on such issuance (in the case of the
Certificates), execution, delivery or performance, of the taking of any
action, the conduct of any business or the exercise of any other powers by
Wilmington Trust Company in its individual or trust capacity in the State of
New York not related to the transactions contemplated by the Transaction
Agreements. We have assumed that Wilmington Trust Company has made the
filings necessary to comply with Section 131.3 of the Banking Law of the State
of New York, however we express no opinion as to whether Wilmington Trust
Company is required to comply with said Section 131.3.
6. All the properties which are part of the Trust Indenture
Estate (including all right, title and interest of the Owner Trustee pledged
and mortgaged by it pursuant to the Indenture in and to the Aircraft and the
Lease) have been pledged and mortgaged with the Indenture Trustee as part of
the Trust Indenture Estate (subject to the due filing and, where appropriate,
recording of those documents referred to in paragraph 2 above and the
financing statements referred to in Section 4.01(f) of the Participation
Agreement), and the beneficial interest of the Owner Participant under the
Trust Agreement in and to such properties is subject, to the extent
provided in the Indenture, to the Lien of the Indenture in favor of the
Holders of the Certificates issued and to be issued under the Indenture.
7. The Indenture creates, as security for the Certificates duly
issued and to be issued under the Indenture, the first priority security
interest in the Aircraft it purports to create, the perfection and rank
thereof being subject to the registration with the FAA of the Aircraft in the
name of the Owner Trustee and the due filing and, where appropriate, recording
in accordance with the Transportation Code of the documents referred to in
paragraph 2 above. We express no opinion with respect to the status of any
security interest in any portion of the Aircraft which does not constitute an
"aircraft" or "aircraft engine", as defined in paragraphs (6) and (7) of
Section 40102(a) of the Transportation Code.
8. Except for (i) the filings and recordings referred to in
paragraph 2 above, (ii) the registration of the issuance and sale of the Pass
Through Certificates under the Securities Act and (iii) compliance with the
securities laws of each applicable state, neither the execution and delivery
by Federal Express of the Participation Agreement or any other Transaction
Agreement to which it is a party, nor the consummation of any of the
transactions by Federal Express contemplated thereby, requires the consent or
approval of, the giving of notice to, or the registration with, or the taking
of any other action in respect of, the Department of Transportation, the FAA,
the Securities and Exchange Commission or any other Federal or New York State
governmental authority.
9. It is not necessary, in connection with the creation of the
beneficial interest of the Owner Participant in the Trust Indenture Estate
under the circumstances contemplated by the Participation Agreement to
register such beneficial interest under the Securities Act of 1933, as
amended, or to qualify the Trust Agreement under the Trust Indenture Act of
1939, as amended.
10. The provisions of Section 1110 of the United States
Bankruptcy Code will apply to the Aircraft for the benefit of the Lessor, as
lessor under and by reason of the Lease. The Lease, including the rights
under Section 1110 of the United States Bankruptcy Code, has been assigned to
the Indenture Trustee pursuant to the Indenture as part of the collateral for
the Certificates and, as assignee, the Indenture Trustee has the benefit of
Section 1110.
The foregoing opinions are subject to the following qualifications:
(a) We have relied, with your consent, without independent
investigation and verification and subject to the assumptions and
qualifications contained therein, upon the opinions of Daugherty, Fowler
& Peregrin and George W. Hearn, Vice President - Law of Federal Express
to be delivered to you and dated the date hereof, for purposes of the
matters covered thereby.
(b) We are qualified to practice law in the State of New York,
and we do not purport to be experts on, or to express any opinion herein
concerning, any laws other than the laws of the State of New York, the
laws of the United States and the General Corporation Law of the State
of Delaware. We express no opinion as to any matters involving aviation
law.
(c) The opinion contained in paragraph 3(A) above as to
enforceability is subject to (i) applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of
creditors' rights generally and (ii) general principles of equity which
may affect the remedies provided in the agreements referred to in said
opinions, which laws and principles, however, do not in our opinion make
the remedies provided in said agreements inadequate for the practical
realization of the benefits of the security intended to be provided
thereby.
(d) This opinion is rendered solely to you at Federal Express's
request in connection with the above matter. This opinion may not be
relied upon by you for any other purpose or relied upon by any other
Person without our prior written consent.
(e) We rendered an opinion dated December 13, 1996 (the "Delivery
Date Opinion"), a copy of which is attached hereto, in connection with
the financing and acquisition of the Aircraft on such date. We hereby
consent and agree that the addressees hereto who were not addressees to
the Delivery Date Opinion may rely on the Delivery Date Opinion as fully
and with the same force and effect as if such addressees were originally
named therein on the date of the Delivery Date Opinion.
Very truly yours,
SCHEDULE A
Lessee
Federal Express Corporation
2007 Corporate Avenue
Memphis, Tennessee 38132
Owner Trustee
State Street Bank and Trust Company
of Connecticut, National Association
Two International Place
4th Floor
Boston, Massachusetts 02110
Indenture Trustee, Pass Through Trustee & Subordination Agent
First Security Bank, National Association
79 South Main Street
Salt Lake City, Utah 84111
Original Indenture Trustee
State Street Bank and Trust Company
Two International Place
4th Floor
Boston, Massachusetts 02110
Agent and Original Loan Participant
Morgan Guaranty Trust Company of New York
60 Wall Street
22nd Floor
New York, New York 10260
Owner Participants
Comerica Leasing Corporation
29201 Telegraph Road
2nd Floor
Southfield, Michigan 48034
Norwest Bank Minnesota, National Association
733 Marquette Avenue
Suite 300
Minneapolis, Minnesota 55479-2048
Underwriters
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
First Chicago Capital Markets, Inc.
Corporate Securities
One First National Plaza
Chicago, Illinois 60670
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
J.P. Morgan & Co.
60 Wall Street
New York, New York 10260
Liquidity Provider
Kredietbank N.V., New York Branch
125 West 55th Street
New York, New York 10019
Exhibit C-2
[Form of Opinion of Davis Polk & Wardwell]
To Each of the Parties named on Schedule A Hereto
Re: Federal Express Corporation Trust No.
[N581FE][N583FE][N584FE][N670FE][N671FE][N672FE][N673FE][N674FE]
Ladies and Gentlemen:
We have acted as special counsel for Federal Express Corporation,
a Delaware corporation ("Federal Express"), in connection with the
transactions contemplated by the Participation Agreement (Federal Express
Corporation Trust No.
[N581FE][N583FE][N584FE][N670FE][N671FE][N672FE][N673FE][N674FE]), dated as of
May 1, 1997 (the "Participation Agreement"), among Federal Express, as Lessee,
[AmSouth Leasing, Ltd. and BTM Funding Corporation, as Owner
Participants][Federal, as initial Owner Participant][PMCC Leasing Corporation,
as Owner Participant], [Wilmington Trust Company][State Street Bank and Trust
Company of Connecticut, National Association], not in its individual capacity,
except as otherwise stated, but solely as Owner Trustee, and First Security
Bank, National Association, not in its individual capacity, except as
otherwise stated, but solely as Indenture Trustee, Pass Through Trustee and
Subordination Agent, relating to the Aircraft. This opinion is being
delivered pursuant to Section 4.01(k)(v) of the Participation Agreement.
Capitalized terms not otherwise defined herein have the meanings assigned
thereto in the Participation Agreement.
The Participation Agreement provides, among other things, for the
financing on the Delivery Date of a portion of the Owner Trustee's payment of
the Purchase Price of one [McDonnell Douglas MD-11F] [Airbus A300F4-605R]
Aircraft using the proceeds from the public offering of the Pass Through
Certificates. On the Certificate Closing Date, three Classes of Pass Through
Certificates will be issued by separate Pass Through Trusts, each formed to
acquire, among other securities, the Certificates bearing a particular
interest rate and having a particular Maturity that will be issued under the
Indenture.
In connection with the opinions expressed below, we have examined
executed counterparts of the Operative Agreements, the Pass Through
Certificates, the Pass Through Agreement and each Series Supplement (the
"Certificate Closing Date Documents") and the forms of the Operative
Agreements to be delivered on the Delivery Date. We have also examined
originals, or copies certified to our satisfaction, of such other agreements,
documents, certificates and statements of governmental officials and corporate
officers as we have deemed necessary or advisable as a basis for such
opinions. In such examination, we have assumed the genuineness of all
signatures and the authenticity of all documents submitted to us as originals
and the conformity with the originals of all documents submitted to us as
copies.
As to any facts material to our opinions expressed below, we have,
with your consent, relied on the representations and warranties made in or
pursuant to the Participation Agreement and the other documents referred to
therein, the accuracy of which we have not independently verified. In
addition, we have, when relevant facts were not independently established by
us, relied, to the extent we deemed such reliance proper, upon certificates of
public officials and certificates, telegrams and other written or telephoned
statements of officers of the parties referred to herein.
Based on the foregoing, it is our opinion that:
1. Assuming (i) the due authorization, execution and delivery
of the Certificate Closing Date Documents by each of the parties to each such
document (other than Federal Express), (ii) each such party has full power and
legal right to enter into and perform its respective obligations under the
Certificate Closing Date Documents, (iii) that the execution, delivery and
performance of each of the Certificate Closing Date Documents by each of the
parties thereto will not violate the respective parties' constituent
documents, (iv) the due authorization, execution, issuance and delivery by the
Owner Trustee, and the due authentication by the Indenture Trustee, of the
Certificates to be issued under the Indenture in accordance with the terms of
the Indenture, (v) the due authorization, execution, issuance, delivery and
authentication by the Pass Through Trustee of the Pass Through Certificates to
be issued under the Pass Through Agreement and the Series Supplement relating
to such Pass Through Certificates, in each case in accordance with the terms
of the Pass Through Agreement and such Series Supplement, and (vi) that the
form of each Certificate Closing Date Document is in compliance with all
applicable laws and governmental rules and regulations (other than the laws
of the United States and the State of New York), then: (A) to the extent
governed by New York law, each Certificate Closing Date Document in form
constitutes a legal, valid and binding agreement of each party thereto
enforceable against each such party in accordance with its terms; (B) the
Indenture creates, for the benefit of the Holders, the security interest in
the Trust Indenture Estate that it purports to create, except that no opinion
is given with respect to perfection of such security interest on the date
hereof; (C) the Certificates, when issued to and acquired by the Pass Through
Trustee, will be legal, valid and binding obligations of the Owner Trustee
enforceable against the Owner Trustee in accordance with their terms and the
terms of the Indenture and will be entitled to the benefits of the Indenture,
including the benefit of the security interest created thereby, except that no
opinion is given with respect to perfection of such security interest on the
date hereof; (D) the Pass Through Certificates, when issued to and acquired by
the Underwriters in accordance with the Underwriting Agreement, will be legal,
valid and binding obligations of the Pass Through Trustee enforceable against
the Pass Through Trustee in accordance with their terms and will be entitled
to the benefits of the Pass Through Agreement and the Series Supplement
relating thereto; and (E) the beneficial interest of the Owner Participant
under the Trust Agreement in and to the properties which are part of the Trust
Indenture Estate is subject, to the extent provided in the Indenture, to the
Lien of the Indenture in favor of the Holders.
2. (a) Each of the Certificate Closing Date Documents to which
Federal Express is a party has been duly authorized, executed and delivered by
Federal Express. Each of the Operative Agreements to which Federal Express is
to be a party and which are to be delivered on the Delivery Date has been
authorized by Federal Express.
(b) The execution, delivery and performance by Federal Express of
each of the Certificate Closing Date Documents to which Federal Express is a
party do not, or did not on the date of execution thereof, violate, and fully
comply, or did fully comply on the date of execution thereof, with, any laws
and governmental rules and regulations of the State of New York that may be
applicable to Federal Express. The opinion set forth in this paragraph 2(b)
is rendered without regard to the taking of any action or the conduct of any
other business by Federal Express in the State of New York other than the
transactions contemplated by the Certificate Closing Date Documents.
3. The execution, delivery and performance of the Certificate
Closing Date Documents (other than the Certificates) by the Owner Trustee in
its individual or trust capacity, as the case may be, and the issuance,
execution, delivery and performance of the Certificates by the Owner Trustee
in its trust capacity do not violate, and fully comply with, any laws and
governmental rules and regulations of the State of New York that may be
applicable to the Owner Trustee in its individual or trust capacity, as the
case may be. The opinion set forth in this paragraph 3 is rendered without
regard to the effect, if any, on such issuance (in the case of the
Certificates), execution, delivery or performance, of the taking of any
action, the conduct of any business or the exercise of any other powers by
State Street Bank and Trust Company of Connecticut, National Association in
its individual or trust capacity in the State of New York not related to the
transactions contemplated by the Certificate Closing Date Documents. We have
assumed that State Street Bank and Trust Company of Connecticut, National
Association has made the filings necessary to comply with Section 131.3 of the
Banking Law of the State of New York, however we express no opinion as to
whether State Street Bank and Trust Company of Connecticut, National
Association is required to comply with said Section 131.3.
4. It is not necessary, in connection with the creation of the
beneficial interest of the Owner Participant in the Trust Indenture Estate
under the circumstances contemplated by the Participation Agreement to
register such beneficial interest under the Securities Act of 1933, as
amended, or to qualify the Trust Agreement under the Trust Indenture Act of
1939, as amended.
The foregoing opinions are subject to the following
qualifications:
(a) We have relied, with your consent, without independent
investigation and verification and subject to the assumptions and
qualifications contained therein, upon the opinion of George W. Hearn,
Vice President - Law of Federal Express to be delivered to you and dated
the date hereof, for purposes of the matters covered thereby.
(b) We are qualified to practice law in the State of New York,
and we do not purport to be experts on, or to express any opinion herein
concerning, any laws other than the laws of the State of New York, the
laws of the United States and the General Corporation Law of the State
of Delaware.
(c) The opinion contained in paragraph 1(A) above as to
enforceability is subject to (i) applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of
creditors' rights generally and (ii) general principles of equity which
may affect the remedies provided in the agreements referred to in said
opinions, which laws and principles, however, do not in our opinion make
the remedies provided in said agreements inadequate for the practical
realization of the benefits of the security intended to be provided
thereby.
(d) This opinion is rendered solely to you at Federal Express's
request in connection with the above matter. This opinion may not be
relied upon by you for any other purpose or relied upon by any other
Person without our prior written consent.
Very truly yours,
Davis Polk & Wardwell
SCHEDULE A
Lessee
Federal Express Corporation
2007 Corporate Avenue
Memphis, Tennessee 38132
Owner Trustee
State Street Bank and Trust Company
of Connecticut, National Association
Two International Place
4th Floor
Boston, Massachusetts 02110
Indenture Trustee, Pass Through Trustee & Subordination Agent
First Security Bank, National Association
79 South Main Street
Salt Lake City, Utah 84111
Owner Participant
[AmSouth Leasing, Ltd.
c/o AmSouth Leasing Corporation
1900 Fifth Avenue North, 8th Floor
Birmingham, Alabama 35203
BTM Funding Corporation
c/o BTM Capital Corporation
125 Summer Street
Boston, Massachusetts 02110]
[PMCC Leasing Corporation
200 First Stamford Place
Stamford, Connecticut 06902]
Underwriters
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
First Chicago Capital Markets, Inc.
Corporate Securities
One First National Plaza
Chicago, Illinois 60670
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
J.P. Morgan & Co.
60 Wall Street
New York, New York 10260
Liquidity Provider
Kredietbank N.V., New York Branch
125 West 55th Street
New York, New York 10019
Exhibit D
Form of Opinion of Company Counsel
May __, 1997
MORGAN STANLEY & CO. INCORPORATED
FIRST CHICAGO CAPITAL MARKETS, INC.
GOLDMAN, SACHS & CO.
J.P. MORGAN SECURITIES INC.
c/o MORGAN STANLEY & CO. INCORPORATED
1585 Broadway
New York, New York 10036
Re: Federal Express Corporation
1997 Pass Through Certificates, 1997-1-A, 1997-1-B and 1997-1-C (the
"Offered Certificates")
Ladies and Gentlemen:
This opinion is directed to the Underwriters pursuant to Section 5(b)(2)
of the Underwriting Agreement dated May __, 1997 (the "Underwriting
Agreement"), among the Company and you, with respect to the offer and sale of
the Offered Certificates. All terms defined or used in the Underwriting
Agreement have the same meaning when used herein, unless otherwise noted.
I am Vice President - Law of the Company and have acted as such in
connection with the Offered Certificates and the Underwriting Agreement. I or
attorneys under my supervision have made such examination and investigation as
we have deemed necessary in order to give the following opinion.
Based on the foregoing, it is my opinion that:
(i) The Company is a corporation duly incorporated, validly existing
and in good standing under the laws of the State of Delaware and has full
corporate power and authority under such laws to own its properties and to
conduct its business as described in the Prospectus; the Company is a "citizen
of the United States" within the meaning of Section 40102(a)(15) of Title 49
of the United States Code, as amended, holding an air operating certificate
issued by the Secretary of Transportation pursuant to Chapter 447 of Title 49
of the United States Code, as amended, for aircraft capable of carrying 10 or
more individuals or 6,000 or more pounds of cargo; the Company is duly
qualified to do business and is in good standing in each jurisdiction in which
it owns or leases real property or in which the conduct of its business
requires such qualification, except for such instances which in the aggregate
will not have a material adverse effect on the Company;
(ii) Each subsidiary of the Company which is a significant subsidiary
as defined in Rule 405 of Regulation C of the 1933 Act Regulations (each a
"Significant Subsidiary") has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the jurisdiction of its
incorporation, has corporate power and authority to own, lease and operate its
properties and conduct its business as described in the Registration
Statement, and, to the best of my knowledge, is duly qualified as a foreign
corporation to transact business and is in good standing in each jurisdiction
in which such qualification is required, except where the failure to so
qualify would not have a material adverse effect on the condition, financial
or otherwise, or the earnings, business affairs or business prospects of the
Company and its subsidiaries considered as one enterprise; all of the issued
and outstanding capital stock of each Significant Subsidiary has been duly
authorized and validly issued and is fully paid and non-assessable, and all of
such capital stock, except for directors' qualifying shares, is owned by the
Company, directly or through subsidiaries, free and clear of any mortgage,
pledge, lien, encumbrance, claim or equity;
(iii) Except for matters described in the Prospectus (as to which I can
express no opinion at this time concerning the Company's liability (if any) or
the effect of any adverse determination upon the business, condition
(financial or otherwise) or operations of the Company), there is no pending,
or to my knowledge, threatened action or proceeding before any court or
administrative agency which individually (or in the aggregate in the case of
any group of related lawsuits) is expected to have a material adverse effect
on the financial condition of the Company or the ability of the Company to
perform its obligations under the Pass Through Agreements and the other
Operative Agreements to which the Company is a party;
(iv) The Pass Through Agreements and the other Operative Agreements to
which the Company is a party have been duly and validly authorized, executed
and delivered by the Company;
(v) The Equipment Certificates are in due and proper form and have
been duly and validly authorized by all necessary corporate action;
(vi) The Company possesses all permits, approvals, franchises and other
rights from federal aviation, aeronautical, communications, transportation and
shipping authorities which are requisite for the conduct of its business as
described in the Prospectus or for the actions contemplated by the
Underwriting Agreement and the offering contemplated by the Prospectus; and
the actions contemplated by the Underwriting Agreement, the Pass Through
Agreements, the Participation Agreements and the other Operative Agreements,
and the offering contemplated by the Prospectus, are not in violation of any
federal statute or regulation relating to aviation, aeronautics,
communications, transportation or shipping;
(vii) The Basic Agreement is qualified under the 1939 Act; I have
reviewed or caused to be reviewed by attorneys under my supervision the
Registration Statement, the Prospectus and each amendment and supplement
thereto (including the documents incorporated by reference) and have no reason
to believe that, as of their respective effective or issue dates, or as of the
Closing Time, either the Registration Statement or the Prospectus or any such
amendment or supplement (or any such documents incorporated by reference)
contained an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading;
(viii) I do not know of any statute or regulation or legal or
governmental proceeding required to be described in the Prospectus which is
not described as required, nor of any contract or document of a character
required to be described in the Registration Statement or the Prospectus or to
be filed as exhibits to the Registration Statement which is not described and
filed as required; and the descriptions in the Registration Statement and the
Prospectus of the contracts and other documents therein described are accurate
and fairly present the information required to be shown;
(ix) The execution and delivery by the Company of the Underwriting
Agreement, the Pass Through Agreements and the Operative Agreements to which
the Company is a party, the consummation by the Company of the transactions
herein and therein contemplated and compliance with the terms of the
Underwriting Agreement, the Pass Through Agreements and such Operative
Agreements do not and will not conflict with or result in a breach of any of
the terms of the Certificate of Incorporation or By-laws of the Company, and
will not conflict with or result in a breach of any of the terms or provisions
of, or constitute a default under, any indenture, mortgage, deed of trust,
loan, credit or note agreement, lease or other agreement or instrument
material to the Company to which the Company is a party or by which it or any
or its properties are bound, or any existing applicable law, rule, regulation,
judgment, order or decree of any government, governmental instrumentality or
court, having jurisdiction over the Company or any of its properties;
(x) No authorization, approval, consent or license of any regulatory
body or authority (other than under the 1933 Act, the 1939 Act and the
securities or Blue Sky laws of the various states) is required for the valid
authorization, issuance, sale and delivery of the Offered Certificates as
herein contemplated or the valid authorization, execution, delivery and
performance by the Company of the Underwriting Agreement, the Pass Through
Agreements and the other Operative Agreements to which the Company is a party
or the consummation by the Company of the transactions contemplated herein or
therein, or, if so required, all such authorizations, approvals, consents and
licenses, specifying the sale, have been obtained and are in full force and
effect;
(xi) The Registration Statement has become effective under the 1933 Act
and, to the best of my knowledge, no stop order suspending the effectiveness
of the Registration Statement has been issued and no proceedings for that
purpose have been instituted or are pending or contemplated under the 1933
Act; the Registration Statement and the Prospectus, and each amendment or
supplement thereto (except for the financial statements and schedules included
therein, as to which I express no opinion), comply as to form in all material
respects to the requirements of the 1933 Act and the 1933 Act Regulations and,
as to documents incorporated therein, to the requirements of the 1934 Act and
the 1934 Act Regulations in effect at the time such documents were filed with
the Commission; and
(xii) The Underwriting Agreement has been duly and validly authorized,
executed and delivered by the Company and constitutes a valid and binding
agreement of the Company, enforceable in accordance with its terms, except as
enforcement thereof is limited by bankruptcy, insolvency, reorganization and
other laws of general applicability relating to or affecting enforcement of
creditors' rights or by general equity principles and subject to any
principles of public policy limiting the right to enforce the indemnification
and contribution provisions contained in Sections 6 and 7 of the Underwriting
Agreement.
In rendering the foregoing opinion, we have assumed that (i) all
signatures on all documents examined by us are genuine and that where any such
signature (other than a signature purporting to have been made on behalf of
the Company) purports to have been made in a corporate, governmental,
fiduciary or other capacity, the person who affixed such signature had the due
authority to do so, (ii) certain factual matters contained in certificates of
public officials are accurate, true and correct, and (iii) photostatic copies
of such documents, records and certificates conform to the originals.
This opinion is intended solely for the benefit of the Underwriters and
is not to be relied on by, and no copies of it are to be delivered to, any
other person without my prior written consent, except that Underwriters'
counsel may rely upon this opinion as to all matters of Tennessee law or
Delaware corporate law in rendering its opinion of even date herewith. I am
not assuming any professional responsibility to any other person by rendering
this opinion. It is understood that this opinion speaks as of the date given,
notwithstanding any delivery as contemplated above on any other date.
George W. Hearn
Schedule I
to
Underwriting
Agreement
Dated: May 22, 1997
FEDERAL EXPRESS CORPORATION
Pass Through Certificates, 1997-1-A
Pass Through Certificates, 1997-1-B
Pass Through Certificates, 1997-1-C
[CAPTION]
<TABLE>
Aggregate Aggregate Aggregate
Amount of Amount of Amount of
1997-1-A 1997-1-B 1997-1-C Total
Pass Pass Pass Aggregate
Through Through Through Amount to be
Underwriters Certificates Certificates Certificates Purchased
- ---------------------------------------- --------------- --------------- --------------- --------------
<S> <C> <C> <C> <C>
MORGAN STANLEY & CO. $77,715,000 $28,950,000 $32,297,000 $138,962,000
INCORPORATED
FIRST CHICAGO CAPITAL MARKETS, INC. 77,713,000 28,950,000 32,296,000 138,959,000
GOLDMAN, SACHS & CO. 77,713,000 28,950,000 32,296,000 138,959,000
J.P. MORGAN SECURITIES INC. 77,713,000 28,950,000 32,296,000 138,959,000
</TABLE>
Schedule I
to
Underwriting
Agreement
Dated: May 22, 1997
FEDERAL EXPRESS CORPORATION
Pass Through Certificates, 1997-1-A
Pass Through Certificates, 1997-1-B
Pass Through Certificates, 1997-1-C
To: Federal Express Corporation
2005 Corporate Avenue
Memphis, Tennessee 38132
Re: Underwriting Agreement dated May 22, 1997
Title of Offered Certificates:
Pass Through Certificates, 1997-1-A
Pass Through Certificates, 1997-1-B
Pass Through Certificates, 1997-1-C
Current ratings:
Moody's S&P
Class A Aa3 AAA
Class B A1 AA-
Class C Baa1 BBB+
Interest rate:
Class A ........7.50%
Class B ........7.52%
Class C ........7.65%
Interest payable:
each January 15 and July 15 commencing on July 15, 1997
Public offering price:
100%, plus accrued interest from May 28, 1997
Closing date, time and location:
May 28, 1997, 9:00 A.M., New York City time
Davis Polk & Wardwell
450 Lexington Avenue
Conference Rooms 810 and 814
New York, NY 10017
Location for checking Offered Certificates:
New York, New York
Listing requirement:
None
Other terms and conditions:
The Offered Certificates will be issued in fully registered, book-entry
only form through the facilities of The Depository Trust Company, and
each Class of the Offered Certificates shall be represented by a
separate global certificate.
Exceptions, if any, to Section 3(i) of the Underwriting Agreement:
None
MORGAN STANLEY & CO. INCORPORATED
FIRST CHICAGO CAPITAL MARKETS, INC.
GOLDMAN, SACHS & CO.
J.P. MORGAN SECURITIES INC.
By: Morgan Stanley & Co. Incorporated
/s/ MORGAN STANLEY & CO. INCORPORATED
By: _______________________________________
Acting on behalf of themselves and the
other named Underwriters
Accepted:
FEDERAL EXPRESS CORPORATION
/s/ ROBERT D. HENNING
By: ________________________________
Name: Robert D. Henning
Title: Assistant Treasurer and
Managing Director, Structured
Finance
SERIES SUPPLEMENT 1997-1-A
Dated May 28, 1997
between
FIRST SECURITY BANK, NATIONAL ASSOCIATION
as Pass Through Trustee,
and
FEDERAL EXPRESS CORPORATION
to
PASS THROUGH TRUST AGREEMENT
Dated as of May 1, 1997
$310,854,000
Federal Express Corporation
Pass Through Trust, 1997-1-A
Federal Express Corporation
1997-1 Pass Through Certificates,
Class A
TABLE OF CONTENTS
Page
RECITALS............................................................. 1
ARTICLE I
CERTAIN DEFINITIONS
ARTICLE II
DESIGNATIONS; TRUST FORMATION;
ISSUANCE OF PASS THROUGH CERTIFICATES
SECTION 2.01. Designations; Aggregate Amount........................... 5
SECTION 2.02. Declaration of Trust; Authorization...................... 5
SECTION 2.03. Issuance of Pass Through Certificates.................... 6
SECTION 2.04. Purchase of Equipment Certificates....................... 6
SECTION 2.05. Representations and Warranties of the Company............ 6
SECTION 2.06. The Intercreditor Agreement.............................. 6
SECTION 2.07. Conditions Precedent..................................... 6
SECTION 2.08. Acceptance of Appointment of Pass Through Trustee........ 7
ARTICLE III
DISTRIBUTION AND RECORD DATES;
CERTIFICATE AND SPECIAL PAYMENT ACCOUNTS;
CONCERNING AUTHENTICATING AGENT, PAYING AGENT AND REGISTRAR AND
THE CERTIFICATEHOLDERS
SECTION 3.01 Distribution Dates....................................... 7
SECTION 3.02. Record Dates............................................. 7
SECTION 3.03. Certificate Account and Special Payments Account......... 7
SECTION 3.04. Form of Pass Through Certificates........................ 8
SECTION 3.05. Indenture Documents...................................... 8
SECTION 3.06. Appointment of Authenticating Agent; Paying Agent and
Registrar.............................................. 8
SECTION 3.07. Predelivery Funding...................................... 8
SECTION 3.08. ERISA.................................................... 9
SECTION 3.09. Intercreditor Agreement.................................. 9
SECTION 3.10. Ranking of Equipment Certificates........................ 9
SECTION 3.11. No Cross-Default or Cross-Collateralization of Equipment
Certificates........................................... 9
SECTION 3.12. Ranking of 1997-1-A Pass Through Certificates............ 9
SECTION 3.13. Liquidity Facility....................................... 9
SECTION 3.14. Purchase Rights of Certificateholders.................... 9
SECTION 3.15. PTC Event of Default..................................... 9
ARTICLE IV
MISCELLANEOUS
SECTION 4.01. Governing Law; Counterpart Form.......................... 10
SECTION 4.02. Reports by the Company................................... 10
SECTION 4.03. Modification and Ratification of Pass Through Agreement.. 10
SECTION 4.04. Termination.............................................. 10
EXHIBIT A Form of Pass Through Certificate
SCHEDULE I Equipment Certificates; related Indenture Documents
SCHEDULE II Cut-Off Date for each of the Aircraft
SERIES SUPPLEMENT 1997-1-A
SERIES SUPPLEMENT 1997-1-A, dated May 28, 1997 (this "Series
Supplement"), between FEDERAL EXPRESS CORPORATION, a Delaware corporation (the
"Company") and FIRST SECURITY BANK, NATIONAL ASSOCIATION, a national banking
association, as Pass Through Trustee (the "Pass Through Trustee"), to the Pass
Through Trust Agreement, dated as of May 1, 1997 (the "Pass Through
Agreement"), between the Company and the Pass Through Trustee.
RECITALS
WHEREAS, capitalized terms used herein shall have the respective
meanings set forth or referred to in Article I hereof;
WHEREAS, Section 2.01 of the Pass Through Agreement provides, among
other things, that the Company and the Pass Through Trustee may execute and
deliver one or more series supplements, each for the purpose of forming a
separate pass through trust for the benefit of the certificateholders of the
class of pass through certificates to be issued pursuant to such pass through
trust, appointing an institution to act as Pass Through Trustee if different
from the institution executing the Pass Through Agreement, establishing
certain terms of such pass through certificates, and pursuant to which the
pass through certificates of such class shall be executed and authenticated by
the Pass Through Trustee and delivered as directed by the Company;
WHEREAS, pursuant to the Participation Agreements, the Company has
agreed to cause the Equipment Certificates to be issued and sold to the Pass
Through Trustee, and the Pass Through Trustee has agreed to purchase the
Equipment Certificates, which will be held in trust as Trust Property for the
benefit of the Certificateholders;
WHEREAS, in order to facilitate such sale, the Company has agreed,
pursuant to the Underwriting Agreement, to cause the Pass Through Trustee to
issue and sell the Pass Through Certificates to the Underwriters;
WHEREAS, pursuant to the Pass Through Agreement and the terms of this
Series Supplement, the Pass Through Trustee will execute, authenticate and
deliver the Pass Through Certificates to the Underwriters upon receipt by the
Pass Through Trustee of the purchase price therefor, which will be applied in
accordance with this Series Supplement to purchase the Equipment Certificates;
WHEREAS, the Pass Through Trustee hereby declares the creation of
this Pass Through Trust for the benefit of the Certificateholders, and the
initial Certificateholders of such Pass Through Certificates, as the grantors
of such Pass Through Trust, by their respective acceptances of such Pass
Through Certificates, join in the creation of such Pass Through Trust;
WHEREAS, to facilitate the sale of the Equipment Certificates to, and
the purchase of the Equipment Certificates by, the Pass Through Trustee on
behalf of this Pass Through Trust, the Company has duly authorized the
execution and delivery of this Series Supplement as the "issuer," as such term
is defined in and solely for purposes of the Securities Act, of the Pass
Through Certificates and as the "obligor," as such term is defined in and
solely for purposes of the Trust Indenture Act, with respect to all such Pass
Through Certificates; and
WHEREAS, this Series Supplement is subject to the provisions of the
Trust Indenture Act and shall, to the extent applicable, be governed by such
provisions;
IT IS HEREBY COVENANTED AND AGREED by and between the parties hereto
as follows:
ARTICLE I
CERTAIN DEFINITIONS
All terms used in this Series Supplement that are defined in the Pass
Through Agreement, either directly or by reference therein, have the meanings
assigned to them therein as supplemented by this Article I, if applicable,
except to the extent the context requires otherwise. Any such defined term
that is defined in the Pass Through Agreement as relating to a particular Pass
Through Trust or Class rather than to any Pass Through Trust or Class
generally shall, when used in this Series Supplement, relate solely to the
Federal Express Corporation Pass Through Trust, 1997-1-A, or the Federal
Express Corporation 1997-1 Pass Through Certificates, Class A, as the case may
be, whether or not expressly so stated herein.
"Aircraft" means four McDonnell Douglas MD-11F aircraft and five
Airbus A300F4-605R aircraft, including the Engines (as such term is defined in
the related Participation Agreement) relating thereto, leased, or expected to
be leased, by the related Owner Trustee to the Company pursuant to one of nine
separate Leases, and, collectively, means all of the foregoing.
"Aircraft Delivery Date" means, for each Aircraft, the date on which
such Aircraft is delivered and sold to the Lessor (as such term is defined in
the related Participation Agreement) and leased by the Lessor to the Lessee
(as such term is defined in the related Participation Agreement) under the
Lease (as such term is defined in the related Participation Agreement), which
date shall also be the date of the initial Lease Supplement (as such term is
defined in the related Participation Agreement).
"Authenticating Agent" has the meaning set forth in Section 3.06
hereof.
"Certificate Account" means the Certificate Account specified in
Section 3.03 hereof.
"Certificateholders" means the Certificateholders of the Class of
Pass Through Certificates designated in Section 2.01 hereof.
"Collateral Account" means each of the Collateral Accounts
established pursuant to the Indentures for each of Federal Express Corporation
Trust Nos. N581FE, N583FE, N584FE, N670FE, N671FE, N672FE, N673FE and N674FE
into which the proceeds of sale of the related Equipment Certificates will be
deposited respectively.
"Cut-Off Date" means the date listed on Schedule II hereto for each
Aircraft.
"Delivery Date" means, for any Equipment Certificates, the Refunding
Date or the Pass Through Closing Date (as such term is defined in the related
Participation Agreement) for such Equipment Certificates.
"Equipment Certificates" means those Equipment Trust Certificates
listed in Schedule I hereto.
"Final Expected Distribution Date" means January 15, 2018.
"Final Legal Distribution Date" means July 15, 2019.
"Intercreditor Agreement" means the Intercreditor Agreement dated as
of May 1, 1997 among the Pass Through Trustee, the Liquidity Provider and the
Subordination Agent.
"Interest Drawing" has the meaning specified in the Intercreditor
Agreement.
"Issuance Date" means the date defined as the Closing Time in the
Underwriting Agreement.
"Liquidity Facility" means the Irrevocable Revolving Credit Agreement
Class A Pass Through Certificates dated as of May 1, 1997 between the
Subordination Agent and the Liquidity Provider.
"Liquidity Provider" means Kredietbank N.V., New York Branch or any
replacement liquidity provider.
"Participation Agreements" means those Participation Agreements
listed in Schedule I hereto.
"Pass Through Certificates" means the Pass Through Certificates
designated in Section 2.01 hereof.
"Pass Through Trust," "this Pass Through Trust" and other like words
means the Pass Through Trust designated in Section 2.01 hereof.
"Paying Agent" means the Person specified as such in Section 3.06
hereof.
"Pool Balance" means, for any Pass Through Trust or for the Pass
Through Certificates issued by any Pass Through Trust, as of any date, the
original aggregate face amount of the Pass Through Certificates of such Pass
Through Trust less the aggregate amount of all payments on such Pass Through
Certificates other than payments made in respect of interest or premium or
reimbursement of any costs and expenses in connection therewith. The Pool
Balance for each Pass Through Trust as of any Regular Distribution Date or
Special Distribution Date will be computed after giving effect to the payment
of principal, if any, on the Equipment Certificates or other Trust Property
held in such Pass Through Trust and the distribution thereof being made on
that date.
"Pool Factor" means, for any Pass Through Trust as of any Regular
Distribution Date or Special Distribution Date the quotient (rounded to the
seventh decimal place) computed by dividing (i) the Pool Balance by (ii) the
original aggregate face amount of the Pass Through Certificates of the related
Class. The Pool Factor for each Pass Through Trust as of any Regular
Distribution Date or Special Distribution Date will be computed after giving
effect to the payment of principal, if any, on such Equipment Certificates or
other Trust Property held in such Pass Through Trust and the distribution
thereof being made on that date.
"PTC Event of Default" has the meaning set forth in Section 3.15
hereof.
"Record Date" means any Record Date specified in Section 3.02 hereof.
"Registrar" means the Person specified as such in Section 3.06 hereof.
"Regular Distribution Date" means any Regular Distribution Date
specified in Section 3.01 hereof.
"Special Distribution Date" means, for any Special Payment, the
Special Distribution Date for such Special Payment specified in Section 3.01
hereof.
"Special Payments Account" means the Special Payments Account
specified in Section 3.03 hereof.
"Specified Investments" has the meaning set forth in Schedule II to
the Participation Agreements.
"Subordination Agent" means First Security Bank, National
Association, a national banking association.
"Trust Property" means, for this Pass Through Trust: (i) the
Equipment Certificates held in this Pass Through Trust; (ii) the rights of
this Pass Through Trust under the Intercreditor Agreement (including all
monies receivable in respect of such rights); (iii) all monies receivable
under the Liquidity Facility for this Pass Through Trust; and (iv) funds from
time to time deposited with the Pass Through Trustee in accounts relating to
this Pass Through Trust.
"Underwriters" means the several Underwriters named in the
Underwriting Agreement.
"Underwriting Agreement" means the Underwriting Agreement dated May
22, 1997 among the Company and Morgan Stanley & Co. Incorporated, First
Chicago Capital Markets, Inc., Goldman, Sachs & Co. and J.P. Morgan & Co.
ARTICLE II
DESIGNATIONS; TRUST FORMATION;
ISSUANCE OF PASS THROUGH CERTIFICATES
SECTION 2.01. Designations; Aggregate Amount. The Pass Through Trust
created hereby shall be designated Federal Express Corporation Pass Through
Trust, 1997-1-A (herein sometimes called this "Pass Through Trust"). The Pass
Through Certificates evidencing Fractional Undivided Interests in such Pass
Through Trust shall be designated as the Federal Express Corporation 1997-1
Pass Through Certificates, Class A (herein sometimes called the "1997-1-A Pass
Through Certificates"). The 1997-1-A Pass Through Certificates shall be the
only instruments evidencing a fractional undivided interest in such Pass
Through Trust.
Except as provided in Sections 2.08, 2.09 and 2.11 of the Pass Through
Agreement, the aggregate amount of 1997-1-A Pass Through Certificates that may
be authenticated, delivered and outstanding under this Series Supplement is
limited to $310,854,000.
SECTION 2.02. Declaration of Trust; Authorization. Each initial
Certificateholder, by its acceptance of any 1997-1-A Pass Through Certificate
is hereby deemed (1) as grantor, to join in the creation and declaration of
this Pass Through Trust and (2) as beneficiary of such Pass Through Trust, to
authorize and direct the Pass Through Trustee to execute and deliver all
documents to which the Pass Through Trustee is a party that may be necessary
or desirable to consummate the transactions contemplated hereby and to
exercise its rights and perform its duties under the Participation Agreements,
the Indentures, the Pass Through Agreement, the Intercreditor Agreement and
this Series Supplement.
The Pass Through Trustee hereby acknowledges and accepts this grant
of trust and declares that it will hold the Trust Property as Pass Through
Trustee of this Pass Through Trust for the use and benefit of the
Certificateholders.
SECTION 2.03. Issuance of Pass Through Certificates. Subject to the
terms set forth herein, on the Issuance Date (i) the Company shall direct the
Underwriters to execute a wire transfer or intra-bank transfer to the Pass
Through Trustee in the amount of the total proceeds payable by such
Underwriters pursuant to the Underwriting Agreement with respect to the
1997-1-A Pass Through Certificates and (ii) the Pass Through Trustee shall
deliver the 1997-1-A Pass Through Certificates to the Underwriters as provided
in the Underwriting Agreement upon receipt by the Pass Through Trustee of such
proceeds.
SECTION 2.04. Purchase of Equipment Certificates. On the Issuance
Date, the Pass Through Trustee shall purchase, in accordance with Section 2.02
of the Pass Through Agreement, each of the Equipment Certificates upon the
satisfaction or waiver of the conditions for such purchase by the Pass Through
Trustee set forth in the related Participation Agreement.
SECTION 2.05. Representations and Warranties of the Company. All of
the representations and warranties of the Company set forth or incorporated by
reference in Section 1 of the Underwriting Agreement are incorporated by
reference in this Series Supplement as if set forth herein and the Company
represents and warrants that such representations and warranties are true and
correct on the date hereof, except to the extent that such representations and
warranties expressly relate solely to an earlier date or later date (in which
case such representations and warranties were correct on and as of such
earlier date or will be correct on and as of such later date, as the case may
be).
SECTION 2.06. The Intercreditor Agreement. The Pass Through Trustee
is hereby directed to execute and deliver the Intercreditor Agreement on or
prior to the Issuance Date in the form delivered to the Pass Through Trustee
by the Company. The Pass Through Trustee represents and warrants that the
Intercreditor Agreement will be duly executed and delivered by one of its
officers who is duly authorized to execute and deliver such document on its
behalf.
SECTION 2.07. Conditions Precedent. The obligations of the Pass
Through Trustee to participate in the transactions described in Sections 2.03
and 2.04 hereof are subject to (i) receipt by the Pass Through Trustee of a
certificate of the Company to the same effect as the certificate of the
Company delivered to the Underwriters pursuant to Section 5(c) of the
Underwriting Agreement, and (ii) satisfaction or waiver of the conditions for
the purchase by the Underwriters of the Pass Through Certificates set forth
in Section 5 of the Underwriting Agreement, which satisfaction or waiver for
the purposes hereof shall be conclusively demonstrated by the receipt by the
Pass Through Trustee of the total proceeds payable by such Underwriters
pursuant to the Underwriting Agreement with respect to the 1997-1-A Pass
Through Certificates.
SECTION 2.08. Acceptance of Appointment of Pass Through Trustee.
First Security Bank, National Association represents and warrants that it is
qualified to serve as Pass Through Trustee and satisfies the criteria
specified in Section 10.02 of the Pass Through Agreement for eligibility as a
Pass Through Trustee. First Security Bank, National Association hereby agrees
to serve as Pass Through Trustee for the Pass Through Certificates and
acknowledges its appointment as Pass Through Trustee in accordance with the
provisions of, and subject to all of the terms and conditions set forth in,
the Pass Through Agreement and this related Series Supplement upon the
execution and delivery of this Series Supplement.
ARTICLE III
DISTRIBUTION AND RECORD DATES;
CERTIFICATE AND SPECIAL PAYMENT ACCOUNTS;
CONCERNING AUTHENTICATING AGENT, PAYING AGENT AND REGISTRAR AND
THE CERTIFICATEHOLDERS
SECTION 3.01 Distribution Dates. The Regular Distribution Dates
are each January 15 and July 15, commencing on July 15, 1997. The Special
Distribution Date is any Business Day on which a Special Payment is to be
distributed.
SECTION 3.02. Record Dates. The Record Dates for the Regular
Distribution Dates are December 31 and June 30, respectively, and the Record
Date for any Special Distribution Date is the fifteenth day preceding such
Special Distribution Date, in any event, whether or not such date is a
Business Day.
SECTION 3.03. Certificate Account and Special Payments Account. In
accordance with Section 5.01(a) of the Pass Through Agreement and upon receipt
of any Scheduled Payment, the Pass Through Trustee shall immediately deposit
such Scheduled Payment into the Certificate Account, a separate and
non-interest bearing account designated by the Pass Through Trustee to be used
for such purpose. In accordance with Section 5.01(b) of the Pass Through
Agreement and upon receipt of any Special Payment, the Pass Through Trustee
shall immediately deposit such Special Payment into the Special Payments
Account, a separate and, except as provided in Section 5.04 of the Pass
Through Agreement, non-interest bearing account designated by the Pass Through
Trustee to be used for such purpose.
SECTION 3.04. Form of Pass Through Certificates. Subject to Section
2.07 of the Pass Through Agreement, each of the 1997-1-A Pass Through
Certificates will be substantially in the form of Exhibit A hereto. The
1997-1-A Pass Through Certificates will be issued pursuant to a book-entry
system in the form of one or more Registered Global Certificates and subject
to the conditions set forth in the Letter of Representations among the
Company, the Pass Through Trustee and The Depository Trust Company.
SECTION 3.05. Indenture Documents. The related Indenture Documents
are listed in Schedule I hereto.
SECTION 3.06. Appointment of Authenticating Agent; Paying Agent and
Registrar. (a) The Pass Through Trustee may appoint an authenticating agent
(the "Authenticating Agent") with respect to the Pass Through Certificates
which shall be authorized to act on behalf of the Pass Through Trustee to
authenticate the Pass Through Certificates issued upon original issue and upon
exchange or registration of transfer thereof or pursuant to Section 2.09 of
the Pass Through Agreement. Pass Through Certificates so authenticated shall
be entitled to the benefits of the Pass Through Agreement and this Series
Supplement and shall be valid and obligatory for all purposes as if
authenticated by the Pass Through Trustee. Whenever reference is made in the
Pass Through Agreement or this Series Supplement to the authentication and
delivery of Pass Through Certificates by the Pass Through Trustee or the Pass
Through Trustee's certificate of authentication, such reference shall be
deemed to include authentication and delivery on behalf of the Pass Through
Trustee by an Authenticating Agent and a certificate of authentication
executed on behalf of the Pass Through Trustee by an Authenticating Agent.
(b) The Paying Agent, Registrar and Authenticating Agent for the
1997-1-A Pass Through Certificates initially shall be First Security Bank,
National Association. First Security Bank, National Association hereby
represents and warrants to the Company that it is qualified to serve as Paying
Agent, Registrar and Authenticating Agent under the provisions of, and subject
to all of the terms and conditions set forth in, the Pass Through Agreement
and this related Series Supplement.
SECTION 3.07. Predelivery Funding and Delayed Equipment
Certificates. (a) Predelivery Funding. During the period between the date of
issuance of Equipment Certificates by the Owner Trustee in respect of Federal
Express Corporation Trust Nos. N670FE, N671FE, N672FE, N673FE, N674FE, N581FE,
N583FE and N584FE and the Aircraft Delivery Date for the related Aircraft,
such Equipment Certificates will not be secured by such Aircraft or the
related Lease, but will be secured by each Collateral Account. Pursuant to
the related Indenture, the Indenture Trustee on behalf of the related Owner
Trustee will deposit the proceeds from the sale of the related Equipment
Certificates into each Collateral Account.
Sums deposited in each Collateral Account will be invested as set
forth in the Related Indenture.
(b) Delayed Equipment Certificates. If for any reason Equipment
Certificates are not available for purchase on the Pass Through Closing Date
(as such term is defined in the related Participation Agreement) the Pass
Through Trustee shall invest a corresponding amount of the proceeds received
from the Underwriters pursuant to the Underwriting Agreement in Specified
Investments at the risk and for the benefit of the Company until such
Equipment Certificates are available for purchase.
SECTION 3.08. ERISA. Any Person who is acquiring a Pass Through
Certificate will be deemed to represent and warrant that (i) no assets of an
employee benefit plan subject to Title I of The Employee Retirement Income
Security Act of 1974, as amended ("ERISA") or an individual retirement account
or plan subject to Section 4975 of the Code, or any trust established under
any such plan or account, have been used to acquire or hold any of the Pass
Through Certificates or (ii) that one or more administrative or statutory
exemptions from the prohibited transaction rules under Section 406 of ERISA
and Section 4975 of the Code applies to its purchase and holding of a Pass
Through Certificate such that its purchase and holding of a Pass Through
Certificate will not result in a non-exempt prohibited transaction under
Section 406 of ERISA and Section 4975 of the Code.
SECTION 3.09. Intercreditor Agreement. The 1997-1-A Pass Through
Certificates are subject to the Intercreditor Agreement.
SECTION 3.10. Ranking of Equipment Certificates. The Equipment
Certificates will be subject to the ranking and priority as set forth in the
related Indenture Documents.
SECTION 3.11. No Cross-Default or Cross-Collateralization of
Equipment Certificates. As set forth in the related Indenture Documents,
there are no cross-collateralization provisions or cross-default provisions in
respect of the Equipment Certificates.
SECTION 3.12. Ranking of 1997-1-A Pass Through Certificates. The
1997-1-A Pass Through Certificates will be subject to the ranking and priority
as set forth in the Intercreditor Agreement.
SECTION 3.13. Liquidity Facility. Payments of interest on the
1997-1-A Pass Through Certificates will be supported by a Liquidity Facility
to be provided by the Liquidity Provider for the benefit of the
Certificateholders.
SECTION 3.14. Purchase Rights of Certificateholders. The
Certificateholders will have the purchase rights, if any, upon the occurrence
and during the continuation of a Triggering Event as set forth in the Pass
Through Agreement.
SECTION 3.15. PTC Event of Default. A PTC Event of Default shall
have occurred if, for any Pass Through Trust, the Pass Through Trustee shall
fail to pay within 10 Business Days of the due date thereof (i) the
outstanding Pool Balance of the 1997-1-A Pass Through Certificates on the
Final Legal Distribution Date or (ii) interest due on the 1997-1 Pass Through
Certificates on any Regular Distribution Date unless the Subordination Agent
has made an Interest Drawing in an amount sufficient to pay such interest and
has distributed such amount to the Certificateholders. Any failure by the Pass
Through Trustee to make expected principal distributions on the 1997-1-A Pass
Through Certificates on any Regular Distribution Date (other than the Final
Legal Distribution Date) will not be a PTC Event of Default.
ARTICLE IV
MISCELLANEOUS
SECTION 4.01. Governing Law; Counterpart Form. AS PROVIDED IN
SECTION 13.14 OF THE PASS THROUGH AGREEMENT, THIS SERIES SUPPLEMENT AND EACH
1997-1-A PASS THROUGH CERTIFICATE SHALL IN ALL RESPECTS BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK, INCLUDING ALL
MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE.
This Series Supplement may be executed by the parties hereto in
separate counterparts, each of which when so executed and delivered shall be
an original, but all such counterparts shall together constitute but one and
the same instrument.
SECTION 4.02. Reports by the Company. In addition to the reports
required to be provided by the Company pursuant to Section 4.03 of the Pass
Through Agreement, the Company agrees to furnish to the Pass Through Trustee
from time to time, such other financial information as the Pass Through
Trustee may reasonably request.
SECTION 4.03. Modification and Ratification of Pass Through
Agreement. The Pass Through Agreement is incorporated herein by reference in
its entirety, and shall be deemed to be a part of this Series Supplement as if
set forth in full herein, and is in all respects ratified and confirmed, as
supplemented and modified by this Series Supplement.
SECTION 4.04. Termination. In no event shall this Pass Through
Trust continue beyond the expiration of 21 years after the death of the last
survivor of George Pataki, Governor of New York State, living on the date of
this Series Supplement.
IN WITNESS WHEREOF, the parties have caused their names to be signed
hereto by their respective officers thereunto duly authorized, all on the day
and year first above written.
FEDERAL EXPRESS CORPORATION
By: _________________________________________
Name: Robert D. Henning
Title: Assistant Treasurer and Managing
Director - Structured Finance
FIRST SECURITY BANK, NATIONAL ASSOCIATION,
not in its individual capacity, except
as otherwise expressly provided herein,
but solely as Pass Through Trustee
By: _________________________________________
Name: Greg A. Hawley
Title: Vice President
Exhibit A
to
Series Supplement
FORM OF PASS THROUGH CERTIFICATE
THIS IS A REGISTERED GLOBAL CERTIFICATE REFERRED TO IN
SECTION 2.12 OF THE PASS THROUGH TRUST AGREEMENT.
Unless this pass through certificate is presented by an authorized
representative of The Depository Trust Company, a New York corporation
("DTC"), to the Pass Through Trustee or its agent for registration or
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 THEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an interest
herein.
FEDERAL EXPRESS CORPORATION PASS THROUGH TRUST, 1997-1-A
1997-1 Pass Through Certificate, Class A
CUSIP 31331FAU5
Final Expected Distribution Date: January 15, 2018
evidencing a fractional undivided interest in a pass through trust.
Certificate No. _______
Applicable interest rate on Equipment Certificates held in
Pass Through Trust, 1997-1-A: 7.50%.
$___________ Fractional Undivided Interest representing _______ of the Pass
Through Trust per $1,000 face amount.
THIS CERTIFIES THAT CEDE & CO., for value received, is the registered
owner of a $_________ (_____________ dollars) Fractional Undivided Interest in
the Federal Express Corporation Pass Through Trust, 1997-1-A (the "Pass
Through Trust") created and declared by First Security Bank, National
Association, as pass through trustee (the "Pass Through Trustee"), pursuant to
the Pass Through Trust Agreement dated as of May 1, 1997 (the "Pass Through
Agreement"), as supplemented by Series Supplement 1997-1-A thereto dated May
__, 1997 (the "Series Supplement") between the Pass Through Trustee and
Federal Express Corporation, a Delaware corporation (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 Pass Through Agreement and the Series
Supplement.
This Pass Through Certificate is one of the duly authorized Pass
Through Certificates designated as "Federal Express Corporation 1997-1 Pass
Through Certificates, Class A." This Pass Through Certificate is issued under
and is subject to the terms, provisions, and conditions of the Pass Through
Agreement, the Series Supplement and the Intercreditor Agreement, to which the
Certificateholder of this Pass Through Certificate by virtue of the acceptance
hereof assents and by which such Certificateholder is bound. The property of
the Pass Through Trust includes (i) the Equipment Certificates held in such
Pass Through Trust, (ii) the rights of such Pass Through Trust under the
Intercreditor Agreement (including all monies receivable in respect of such
rights), (iii) all monies receivable under the Liquidity Facility for such
Pass Through Trust, and (iv) funds from time to time deposited with the Pass
Through Trustee in accounts relating to such Pass Through Trust. (the "Trust
Property"). Each series of Equipment Certificates is secured by a security
interest in (A) an aircraft leased to or, in the case of the Airbus
A300F4-605R Aircraft, owned by the Company and, in the case of a leased
aircraft, an assignment of the rights of the Related Owner Trustee with
respect to such aircraft, including the right to receive rent and other
amounts payable under the related Lease or Indenture with respect to such
aircraft or (B) a collateral account holding Specified Investments purchased
with the proceeds of the sale of such series of Equipment Certificates. Each
of the Pass Through Certificates represents a Fractional Undivided Interest in
the Pass Through Trust and the Trust Property, and has no rights, benefits or
interests in respect of any other separate trust established pursuant to the
terms of the Pass Through Agreement for any other class of Pass Through
Certificates issued pursuant thereto.
Subject to and in accordance with the terms of the Pass Through Agreement,
the Series Supplement and the Intercreditor Agreement, from funds then
available to the Pass Through Trustee, there will be distributed on each
January 15 and July 15 (a "Regular Distribution Date"), commencing on July 15,
1997, to the Person in whose name this Pass Through Certificate is registered
at the close of business on the 15th day preceding the applicable Regular
Distribution Date, an amount in respect of the Scheduled Payments on the
Equipment Certificates due on such Regular Distribution Date, equal to the
product of the percentage interest in the Pass Through Trust evidenced by this
Pass Through Certificate and an amount equal to the sum of such Scheduled
Payments.
Subject to and in accordance with the terms of the Pass Through Agreement,
the Series Supplement and the Intercreditor Agreement, if Special Payments on
the Equipment Certificates are received by the Pass Through Trustee, from
funds then available to the Pass Through Trustee, there shall be distributed
on the applicable Special Distribution Date, to the Person in whose name this
Pass Through Certificate is registered at the close of business on the 15th
day preceding such Special Distribution Date, an amount in respect of such
Special Payments on the Equipment Certificates, equal to the product of the
percentage interest in the Pass Through Trust evidenced by this Pass Through
Certificate and an amount equal to the sum of such Special Payments so
received.
If a 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 Distribution Date and no interest shall accrue during the
intervening period. The Special Distribution Date shall be any Business Day
on which a Special Payment is to be distributed.
Distributions on this Pass Through Certificate will be made by the Pass
Through Trustee to the Person entitled thereto, without the presentation or
surrender of this Pass Through Certificate or the making of any notation
hereon. Except as otherwise provided in the Pass Through Agreement and
notwithstanding the above, the final distribution on this Pass Through
Certificate will be made after notice is mailed by the Pass Through Trustee of
the pendency of such distribution and only upon presentation and surrender of
this Pass Through Certificate at the office or agency of the Pass Through
Trustee specified in such notice.
Any Person acquiring this Pass Through Certificate will be deemed to
represent and warrant that (i) no assets of an employee benefit plan subject
to Title I of The Employee Retirement Income Security Act of 1974, as amended
("ERISA") or an individual retirement account or plan subject to Section 4975
of the Code, or any trust established under any such plan or account, have
been used to acquire or hold any of the Pass Through Certificates or (ii) that
one or more administrative or statutory exemptions from the prohibited
transaction rules under Section 406 of ERISA and Section 4975 of the Code
applies to its purchase and holding of this Pass Through Certificate such that
its purchase and holding of this Pass Through Certificate will not result in a
non-exempt prohibited transaction under Section 406 of ERISA and Section 4975
of the Code.
This Pass Through Certificate shall be governed by and construed in
accordance with the laws of the State of New York.
Reference is hereby made to the further provisions of this Pass Through
Certificate set forth on the reverse hereof, which further provisions shall
for all purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the
Pass Through Trustee, by manual signature, this Pass Through Certificate shall
not be entitled to any benefit under the Pass Through Trust or be valid for
any purpose.
IN WITNESS WHEREOF, the Pass Through Trustee has caused this Pass Through
Certificate to be duly executed.
FEDERAL EXPRESS CORPORATION
PASS THROUGH TRUST, 1997-1-A
FIRST SECURITY BANK, NATIONAL ASSOCIATION,
not in its individual capacity, except as
otherwise expressly provided herein, but
solely as Pass Through Trustee
By: __________________________________
Authorized Signatory
[FORM OF THE PASS THROUGH TRUSTEE'S CERTIFICATE OF AUTHENTICATION]
Dated: May ___, 1997
This is one of the Pass Through Certificates referred to in the
within-mentioned Pass Through Agreement and the Series Supplement.
FIRST SECURITY BANK, NATIONAL ASSOCIATION,
not in its individual capacity, except as
otherwise expressly provided herein, but
solely as Pass Through Trustee
By: _______________________________________
Authorized Signatory
[Reverse of Pass Through Certificate]
The Pass Through Certificates do not represent a direct obligation of, or
an obligation guaranteed by, or an interest in, the Company or the Pass
Through Trustee or any affiliate thereof. The Pass Through Certificates are
limited in right of payment, all as more specifically set forth on the face
hereof and in the Pass Through Agreement, the Intercreditor Agreement and the
Series Supplement. Subject to the Intercreditor Agreement, all payments or
distributions made to Certificateholders under the Pass Through Agreement
shall be made only from the Trust Property and only to the extent that the
Pass Through Trustee shall have sufficient income or proceeds from the Trust
Property to make such payments in accordance with the terms of the Pass
Through Agreement and the Series Supplement. Each Certificateholder of this
Pass Through 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 Pass
Through Agreement, the Intercreditor Agreement and the Series Supplement.
In connection with withholding taxes, under certain circumstances the Pass
Through Trustee may retain certain amounts otherwise distributable to a
Certificateholder. The purchase by any Certificateholder of any Pass Through
Certificate constitutes the consent of such Certificateholder to such
retention in accordance with the terms of the Pass Through Agreement.
This Pass Through Certificate does not purport to summarize the Pass Through
Agreement, the Intercreditor Agreement and the Series Supplement and reference
is made to the Pass Through Agreement, the Intercreditor Agreement and the
Series Supplement for information with respect to the interests, rights,
benefits, obligations, proceeds and duties evidenced hereby. A copy of the
Pass Through Agreement, the Intercreditor Agreement and the Series Supplement
may be examined by any Certificateholder upon request during normal business
hours at the principal office of the Pass Through Trustee, and at such other
places designated by the Pass Through Trustee.
As of the date of issuance of this Pass Through Certificate, and assuming
that no prepayment or default in respect of payment on the Equipment
Certificates shall occur, the aggregate scheduled repayments of principal on
the Equipment Certificates for the Pass Through Trust and the resulting Pool
Factors for the Pass Through Trust after taking into account each such
repayment are set forth below:
Class A Trust
Equipment Certificates
Regular Scheduled Payments
Distribution Date of Principal Expected Pool Factor
- --------------------- ------------------------ ----------------------
May 28, 1997 0 1.00000000
July 15, 1997 0 1.00000000
January 15, 1998 $ 2,582,007 0.9916938
July 15, 1998 2,183,726 0.9846689
January 15, 1999 3,781,639 0.9725036
July 15, 1999 1,824,711 0.9666336
January 15, 2000 4,381,953 0.9525371
July 15, 2000 1,878,088 0.9464954
January 15, 2001 4,755,783 0.9311963
July 15, 2001 1,504,258 0.9263572
January 15, 2002 5,644,273 0.9081999
July 15, 2002 615,768 0.9062190
January 15, 2003 5,510,536 0.8884919
July 15, 2003 749,504 0.8860808
January 15, 2004 4,443,848 0.8717852
July 15, 2004 1,816,192 0.8659426
January 15, 2005 3,997,728 0.8530821
July 15, 2005 2,262,318 0.8458044
January 15, 2006 4,443,848 0.8315087
July 15, 2006 1,816,198 0.8256661
January 15, 2007 4,930,209 0.8098059
July 15, 2007 1,329,833 0.8055279
January 15, 2008 6,260,042 0.7853897
July 15, 2008 0 0.7853897
January 15, 2009 6,260,042 0.7652515
July 15, 2009 0 0.7652515
January 15, 2010 7,587,306 0.7408436
July 15, 2010 0 0.7408436
January 15, 2011 11,187,831 0.7048530
July 15, 2011 0 0.7048530
January 15, 2012 17,265,476 0.6493109
July 15, 2012 0 0.6493109
January 15, 2013 41,565,514 0.5155969
July 15, 2013 0 0.5155969
January 15, 2014 29,254,801 0.4214859
July 15, 2014 80,029 0.4212284
January 15, 2015 48,486,399 0.2652504
July 15, 2015 313,361 0.2642423
January 15, 2016 46,924,316 0.1132894
July 15, 2016 564,520 0.1114734
January 15, 2017 33,575,713 0.0034622
July 15, 2017 0 0.0034622
January 15, 2018 1,076,230 0.0000000
Each Certificateholder of this Pass Through Certificate by its acceptance
hereof, acknowledges that the terms of the Participation Agreement, the Lease
and the Indenture as they relate to two of the aircraft may differ from the
terms set forth or incorporated by reference in this Pass Through Certificate.
The Pass Through Agreement, the Intercreditor Agreement and the Series
Supplement permit, with certain exceptions provided therein, the amendment
thereof and the modification of the rights and obligations of the Company and
the rights of the Certificateholders under the Pass Through Trust at any time
by the Company and the Pass Through Trustee with the consent of the Majority
In Interest of Certificateholders in the Pass Through Trust. Any such consent
by the Certificateholder of this Pass Through Certificate shall be conclusive
and binding on such Certificateholder and upon all future Certificateholders
of this Pass Through Certificate and of any Pass Through Certificate issued
upon the transfer hereof or in exchange hereof or in lieu hereof whether or not
notation of such consent is made upon this Pass Through Certificate. The Pass
Through Agreement, the Intercreditor Agreement and the Series Supplement also
permit the amendment thereof, in certain limited circumstances, without the
consent of the Certificateholders of any of the Pass Through Certificates.
As provided in the Pass Through Agreement and the Series Supplement and
subject to certain limitations set forth therein, the transfer of this Pass
Through Certificate is registrable in the Register upon surrender of this Pass
Through Certificate for registration of transfer to the Pass Through 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
Pass Through 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 Pass Through Certificates of authorized denominations
evidencing the same aggregate Fractional Undivided Interest in the Pass
Through Trust will be issued to the designated transferee or transferees.
The Pass Through Certificates are issuable only as registered Pass Through
Certificates without coupons in minimum denominations of $1,000 fractional
undivided interests and integral multiples thereof. As provided in the Pass
Through Agreement and the Series Supplement and subject to certain limitations
set forth therein, the Pass Through Certificates are exchangeable for new Pass
Through Certificates of authorized denominations evidencing the same aggregate
Fractional Undivided Interest in the Pass Through 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 Pass Through Trustee may require payment of a sum sufficient
to cover any tax or governmental charge payable in connection therewith.
The Pass Through Trustee, the Registrar, and any agent of the Pass Through
Trustee or the Registrar may treat the person in whose name this Pass Through
Certificate is registered as the owner hereof for all purposes, and neither
the Pass Through Trustee, the Registrar, nor any such agent shall be affected
by any notice to the contrary.
The obligations and responsibilities created by the Pass Through Agreement
and the Series Supplement and the Pass Through Trust created thereby shall
terminate upon the distribution to Certificateholders of all amounts required
to be distributed to them pursuant to the Pass Through Agreement, the
Intercreditor Agreement and the Series Supplement and the disposition of all
property held as part of the Trust Property.
Schedule I
to
Series Supplement
Federal Express Corporation
Pass Through Trust, 1997-1-A
Class A
Equipment Certificates;
Related Indenture Documents
1. Equipment Certificates (Federal Express Corporation Trust No. N581FE):
Interest Rate: 7.50%
Maturity: January 15, 2017
Principal Amount: $35,615,000
Related Indenture Documents:
Trust Indenture and Security Agreement (Federal Express Corporation Trust
No. N581FE) dated as of May 1, 1997, between Wilmington Trust Company, not
in its individual capacity, except as otherwise provided therein, but
solely as Owner Trustee, and First Security Bank, National Association, not
in its individual capacity, except as otherwise provided therein, but
solely as Indenture Trustee;
Participation Agreement (Federal Express Corporation Trust No. N581FE)
dated as of May 1, 1997, among Federal Express Corporation, as Lessee,
AmSouth Leasing, Ltd. and BTM Funding Corporation, as Owner Participants,
Wilmington Trust Company, not in its individual capacity, except as
otherwise provided therein, but solely as Owner Trustee, First Security
Bank, National Association, not in its individual capacity, except as
otherwise provided therein, but solely as Indenture Trustee, First Security
Bank, National Association, not in its individual capacity, except as
otherwise provided therein, but solely as Pass Through Trustee, and First
Security Bank, National Association, not in its individual capacity, except
as otherwise provided therein, but solely as Subordination Agent;
Trust Agreement (Federal Express Corporation Trust No. N581FE) dated as of
May 1, 1997, among AmSouth Leasing, Ltd. and BTM Funding Corporation, as
Owner Participants, and Wilmington Trust Company;
Lease Agreement (Federal Express Corporation Trust No. N581FE) dated as of
May 1, 1997, between Wilmington Trust Company, not in its individual
capacity, except as otherwise provided therein, but solely as Owner Trustee
and Lessor, and Federal Express Corporation, as Lessee; and
Owner Participant Guaranty (Federal Express Corporation Trust No. N581FE)
dated May 28, 1997, by AmSouth Bank of Alabama, as the Owner Participant
Guarantor in favor of the Lessee, the Owner Trustee, the Indenture Trustee
and the Pass Through Trustee.
Owner Participant Guaranty (Federal Express Corporation Trust No. N581FE)
dated May 28, 1997, by BTM Capital Corporation, as the Owner Participant
Guarantor in favor of the Lessee, the Owner Trustee, the Indenture Trustee
and the Pass Through Trustee.
2. Equipment Certificates (Federal Express Corporation Trust No. N583FE):
Interest Rate: 7.50%
Maturity: January 15, 2016
Principal Amount: $34,220,000
Related Indenture Documents:
Trust Indenture and Security Agreement (Federal Express Corporation Trust
No. N583FE) dated as of May 1, 1997, between State Street Bank and Trust
Company of Connecticut, National Association, not in its individual
capacity, except as otherwise provided therein, but solely as Owner
Trustee, and First Security Bank, National Association, not in its
individual capacity, except as otherwise provided therein, but solely as
Indenture Trustee;
Participation Agreement (Federal Express Corporation Trust No. N583FE)
dated as of May 1, 1997, among Federal Express Corporation, as Lessee and
Initial Owner Participant, State Street Bank and Trust Company of
Connecticut, National Association, not in its individual capacity, except
as otherwise provided therein, but solely as Owner Trustee, First Security
Bank, National Association, not in its individual capacity, except as
otherwise provided therein, but solely as Indenture Trustee, First Security
Bank, National Association, not in its individual capacity, except as
otherwise provided therein, but solely as Pass Through Trustee, and First
Security Bank, National Association, not in its individual capacity, except
as otherwise provided therein, but solely as Subordination Agent;
Trust Agreement (Federal Express Corporation Trust No. N583FE) dated as of
May 1, 1997, between Federal Express Corporation, as Initial Owner
Participant, and State Street Bank and Trust Company of Connecticut,
National Association; and Lease Agreement (Federal Express Corporation
Trust No. N583FE) dated as of May 1, 1997, between State Street Bank
and Trust Company of Connecticut, National Association, not in its
individual capacity, except as otherwise provided therein, but solely as
Owner Trustee and Lessor, and Federal Express Corporation, as Lessee.
3. Equipment Certificates (Federal Express Corporation Trust No. N584FE):
Interest Rate: 7.50%
Maturity: January 15, 2016
Principal Amount: $36,665,000
Related Indenture Documents:
Trust Indenture and Security Agreement (Federal Express Corporation Trust
No. N584FE) dated as of May 1, 1997, between State Street Bank and Trust
Company of Connecticut, National Association, not in its individual
capacity, except as otherwise provided therein, but solely as Owner
Trustee, and First Security Bank, National Association, not in its
individual capacity, except as otherwise provided therein, but solely as
Indenture Trustee;
Participation Agreement (Federal Express Corporation Trust No. N584FE)
dated as of May 1, 1997, among Federal Express Corporation, as Lessee and
Initial Owner Participant, State Street Bank and Trust Company of
Connecticut, National Association, not in its individual capacity, except
as otherwise provided therein, but solely as Owner Trustee, First Security
Bank, National Association, not in its individual capacity, except as
otherwise provided therein, but solely as Indenture Trustee, First Security
Bank, National Association, not in its individual capacity, except as
otherwise provided therein, but solely as Pass Through Trustee, and First
Security Bank, National Association, not in its individual capacity, except
as otherwise provided therein, but solely as Subordination Agent;
Trust Agreement (Federal Express Corporation Trust No. N584FE) dated as of
May 1, 1997, between Federal Express Corporation, as Initial Owner
Participant, and State Street Bank and Trust Company of Connecticut,
National Association; and
Lease Agreement (Federal Express Corporation Trust No. N584FE) dated as of
May 1, 1997, between State Street Bank and Trust Company of Connecticut,
National Association, not in its individual capacity, except as otherwise
provided therein, but solely as Owner Trustee and Lessor, and Federal
Express Corporation, as Lessee.
4. Equipment Certificates (Federal Express Corporation Trust No. N587FE):
Interest Rate: 7.50%
Maturity: January 15, 2015
Principal Amount: $37,512,000
Related Indenture Documents:
Trust Indenture and Security Agreement (Federal Express Corporation Trust
No. N587FE) dated as of December 1, 1996, as amended and restated as of May
1, 1997, between Wilmington Trust Company, not in its individual capacity,
except as otherwise provided therein, but solely as Owner Trustee, and
First Security Bank, National Association, not in its individual capacity,
except as otherwise provided therein, but solely as Indenture Trustee;
Trust Indenture and Security Agreement Supplement No. 1 (Federal Express
Corporation Trust No. N587FE) dated December 13, 1996, between Wilmington
Trust Company, not in its individual capacity, except as otherwise provided
therein, but solely as Owner Trustee, and First Security Bank, National
Association, not in its individual capacity, except as otherwise provided
therein, but solely as Indenture Trustee;
Participation Agreement (Federal Express Corporation Trust No. N587FE)
dated as of December 1, 1996, as amended and restated as of May 1, 1997,
among Federal Express Corporation, as Lessee, CMCA Lease, Inc. and Norwest
Bank Minnesota, National Association, as Owner Participants, Wilmington
Trust Company, not in its individual capacity, except as otherwise provided
therein, but solely as Owner Trustee, State Street Bank and Trust Company,
not in its individual capacity, except as otherwise provided therein, but
solely as Original Indenture Trustee, First Security Bank, National
Association, not in its individual capacity, except as otherwise provided
therein, but solely as Indenture Trustee, First Security Bank, National
Association, not in its individual capacity, except as otherwise provided
therein, but solely as Pass Through Trustee, First Security Bank, National
Association, not in its individual capacity, except as otherwise provided
therein, but solely as Subordination Agent, and Morgan Guaranty Trust
Company of New York, as Original Loan Participant;
Trust Agreement (Federal Express Corporation Trust No. N587FE) dated as of
December 1, 1996, as amended and restated as of May 1, 1997, among CMCA
Lease, Inc. and Norwest Bank Minnesota, National Association, as Owner
Participants, and Wilmington Trust Company;
Lease Agreement (Federal Express Corporation Trust No. N587FE) dated as of
December 1, 1996, as amended and restated as of May 1, 1997, between
Wilmington Trust Company, not in its individual capacity, except as
otherwise provided therein, but solely as Owner Trustee and Lessor, and
Federal Express Corporation, as Lessee;
Lease Supplement No. 1 (Federal Express Corporation Trust No. N587FE) dated
December 13, 1996, between Wilmington Trust Company, not in its individual
capacity, except as otherwise provided therein, but solely as Owner Trustee
and Lessor, and Federal Express Corporation, as Lessee; and
Owner Participant Guaranty (Federal Express Corporation Trust No. N587FE)
dated December 13, 1996, as amended and restated as of May 28, 1997, by
Comerica Bank, as the Owner Participant Guarantor in favor of the Lessee,
the Owner Trustee, the Indenture Trustee and the Pass Through Trustee.
5. Equipment Certificates (Federal Express Corporation Trust No. N670FE):
Interest Rate: 7.50%
Maturity: January 15, 2017
Principal Amount: $33,352,000
Related Indenture Documents:
Trust Indenture and Security Agreement (Federal Express Corporation Trust
No. N670FE) dated as of May 1, 1997, between State Street Bank and Trust
Company of Connecticut, National Association, not in its individual
capacity, except as otherwise provided therein, but solely as Owner
Trustee, and First Security Bank, National Association, not in its
individual capacity, except as otherwise provided therein, but solely as
Indenture Trustee;
Participation Agreement (Federal Express Corporation Trust No. N670FE)
dated as of May 1, 1997, among Federal Express Corporation, as Lessee, PMCC
Leasing Corporation, as Owner Participant, State Street Bank and Trust
Company of Connecticut, National Association, not in its individual
capacity, except as otherwise provided therein, but solely as Owner
Trustee, First Security Bank, National Association, not in its individual
capacity, except as otherwise provided therein, but solely as Indenture
Trustee, First Security Bank, National Association, not in its individual
capacity, except as otherwise provided therein, but solely as Pass Through
Trustee, and First Security Bank, National Association, not in its
individual capacity, except as otherwise provided therein, but solely as
Subordination Agent;
Trust Agreement (Federal Express Corporation Trust No. N670FE) dated as of
May 1, 1997, between PMCC Leasing Corporation, as Owner Participant, and
State Street Bank and Trust Company of Connecticut, National Association;
Lease Agreement (Federal Express Corporation Trust No. N670FE) dated as of
May 1, 1997, between State Street Bank and Trust Company of Connecticut,
National Association, not in its individual capacity, except as otherwise
provided therein, but solely as Owner Trustee and Lessor, and Federal
Express Corporation, as Lessee; and
Owner Participant Guaranty (Federal Express Corporation Trust No. N670FE)
dated May 28, 1997, by Philip Morris Capital Corporation, as the Owner
Participant Guarantor in favor of the Lessee, the Owner Trustee, the
Indenture Trustee and the Pass Through Trustee.
6. Equipment Certificates (Federal Express Corporation Trust No. N671FE):
Interest Rate: 7.50%
Maturity: January 15, 2017
Principal Amount: $33,352,000
Related Indenture Documents:
Trust Indenture and Security Agreement (Federal Express Corporation Trust
No. N671FE) dated as of May 1, 1997, between State Street Bank and Trust
Company of Connecticut, National Association, not in its individual
capacity, except as otherwise provided therein, but solely as Owner
Trustee, and First Security Bank, National Association, not in its
individual capacity, except as otherwise provided therein, but solely as
Indenture Trustee;
Participation Agreement (Federal Express Corporation Trust No. N671FE)
dated as of May 1, 1997, among Federal Express Corporation, as Lessee, PMCC
Leasing Corporation, as Owner Participant, State Street Bank and Trust
Company of Connecticut, National Association, not in its individual
capacity, except as otherwise provided therein, but solely as Owner
Trustee, First Security Bank, National Association, not in its individual
capacity, except as otherwise provided therein, but solely as Indenture
Trustee, First Security Bank, National Association, not in its individual
capacity, except as otherwise provided therein, but solely as Pass Through
Trustee, and First Security Bank, National Association, not in its
individual capacity, except as otherwise provided therein, but solely as
Subordination Agent;
Trust Agreement (Federal Express Corporation Trust No. N671FE) dated as of
May 1, 1997, between PMCC Leasing Corporation, as Owner Participant, and
State Street Bank and Trust Company of Connecticut, National Association;
Lease Agreement (Federal Express Corporation Trust No. N671FE) dated as of
May 1, 1997, between State Street Bank and Trust Company of Connecticut,
National Association, not in its individual capacity, except as otherwise
provided therein, but solely as Owner Trustee and Lessor, and Federal
Express Corporation, as Lessee; and
Owner Participant Guaranty (Federal Express Corporation Trust No. N671FE)
dated May 28, 1997, by Philip Morris Capital Corporation, as the Owner
Participant Guarantor in favor of the Lessee, the Owner Trustee, the
Indenture Trustee and the Pass Through Trustee.
7. Equipment Certificates (Federal Express Corporation Trust No. N672FE):
Interest Rate: 7.50%
Maturity: January 15, 2018
Principal Amount: $33,374,000
Related Indenture Documents:
Trust Indenture and Security Agreement (Federal Express Corporation Trust
No. N672FE) dated as of May 1, 1997, between State Street Bank and Trust
Company of Connecticut, National Association, not in its individual
capacity, except as otherwise provided therein, but solely as Owner
Trustee, and First Security Bank, National Association, not in its
individual capacity, except as otherwise provided therein, but solely as
Indenture Trustee;
Participation Agreement (Federal Express Corporation Trust No. N672FE)
dated as of May 1, 1997, among Federal Express Corporation, as Lessee, PMCC
Leasing Corporation, as Owner Participant, State Street Bank and Trust
Company of Connecticut, National Association, not in its individual
capacity, except as otherwise provided therein, but solely as Owner
Trustee, First Security Bank, National Association, not in its individual
capacity, except as otherwise provided therein, but solely as Indenture
Trustee, First Security Bank, National Association, not in its individual
capacity, except as otherwise provided therein, but solely as Pass Through
Trustee, and First Security Bank, National Association, not in its
individual capacity, except as otherwise provided therein, but solely as
Subordination Agent;
Trust Agreement (Federal Express Corporation Trust No. N672FE) dated as of
May 1, 1997, between PMCC Leasing Corporation, as Owner Participant, and
State Street Bank and Trust Company of Connecticut, National Association;
Lease Agreement (Federal Express Corporation Trust No. N672FE) dated as of
May 1, 1997, between State Street Bank and Trust Company of Connecticut,
National Association, not in its individual capacity, except as otherwise
provided therein, but solely as Owner Trustee and Lessor, and Federal
Express Corporation, as Lessee; and
Owner Participant Guaranty (Federal Express Corporation Trust No. N672FE)
dated May 28, 1997, by Philip Morris Capital Corporation, as the Owner
Participant Guarantor in favor of the Lessee, the Owner Trustee, the
Indenture Trustee and the Pass Through Trustee.
8. Equipment Certificates (Federal Express Corporation Trust No. N673FE):
Interest Rate: 7.50%
Maturity: January 15, 2018
Principal Amount: $33,382,000
Related Indenture Documents:
Trust Indenture and Security Agreement (Federal Express Corporation Trust
No. N673FE) dated as of May 1, 1997, between State Street Bank and Trust
Company of Connecticut, National Association, not in its individual
capacity, except as otherwise provided therein, but solely as Owner
Trustee, and First Security Bank, National Association, not in its
individual capacity, except as otherwise provided therein, but solely as
Indenture Trustee;
Participation Agreement (Federal Express Corporation Trust No. N673FE)
dated as of May 1, 1997, among Federal Express Corporation, as Lessee, PMCC
Leasing Corporation, as Owner Participant, State Street Bank and Trust
Company of Connecticut, National Association, not in its individual
capacity, except as otherwise provided therein, but solely as Owner
Trustee, First Security Bank, National Association, not in its individual
capacity, except as otherwise provided therein, but solely as Indenture
Trustee, First Security Bank, National Association, not in its individual
capacity, except as otherwise provided therein, but solely as Pass Through
Trustee, and First Security Bank, National Association, not in its
individual capacity, except as otherwise provided therein, but solely as
Subordination Agent;
Trust Agreement (Federal Express Corporation Trust No. N673FE) dated as of
May 1, 1997, between PMCC Leasing Corporation, as Owner Participant, and
State Street Bank and Trust Company of Connecticut, National Association;
Lease Agreement (Federal Express Corporation Trust No. N673FE) dated as of
May 1, 1997, between State Street Bank and Trust Company of Connecticut,
National Association, not in its individual capacity, except as otherwise
provided therein, but solely as Owner Trustee and Lessor, and Federal
Express Corporation, as Lessee; and
Owner Participant Guaranty (Federal Express Corporation Trust No. N673FE)
dated May 28, 1997, by Philip Morris Capital Corporation, as the Owner
Participant Guarantor in favor of the Lessee, the Owner Trustee, the
Indenture Trustee and the Pass Through Trustee.
9. Equipment Certificates (Federal Express Corporation Trust No. N674FE):
Interest Rate: 7.50%
Maturity: January 15, 2018
Principal Amount: $33,382,000
Related Indenture Documents:
Trust Indenture and Security Agreement (Federal Express Corporation Trust
No. N674FE) dated as of May 1, 1997, between State Street Bank and Trust
Company of Connecticut, National Association, not in its individual
capacity, except as otherwise provided therein, but solely as Owner
Trustee, and First Security Bank, National Association, not in its
individual capacity, except as otherwise provided therein, but solely as
Indenture Trustee;
Participation Agreement (Federal Express Corporation Trust No. N674FE)
dated as of May 1, 1997, among Federal Express Corporation, as Lessee, PMCC
Leasing Corporation, as Owner Participant, State Street Bank and Trust
Company of Connecticut, National Association, not in its individual
capacity, except as otherwise provided therein, but solely as Owner
Trustee, First Security Bank, National Association, not in its individual
capacity, except as otherwise provided therein, but solely as Indenture
Trustee, First Security Bank, National Association, not in its individual
capacity, except as otherwise provided therein, but solely as Pass Through
Trustee, and First Security Bank, National Association, not in its
individual capacity, except as otherwise provided therein, but solely as
Subordination Agent;
Trust Agreement (Federal Express Corporation Trust No. N674FE) dated as of
May 1, 1997, between PMCC Leasing Corporation, as Owner Participant, and
State Street Bank and Trust Company of Connecticut, National Association;
Lease Agreement (Federal Express Corporation Trust No. N674FE) dated as of
May 1, 1997, between State Street Bank and Trust Company of Connecticut,
National Association, not in its individual capacity, except as otherwise
provided therein, but solely as Owner Trustee and Lessor, and Federal
Express Corporation, as Lessee; and
Owner Participant Guaranty (Federal Express Corporation Trust No. N674FE)
dated May 28, 1997, by Philip Morris Capital Corporation, as the Owner
Participant Guarantor in favor of the Lessee, the Owner Trustee, the
Indenture Trustee and the Pass Through Trustee.
Schedule II
to
Series Supplement
Cut-Off Date for each of the Aircraft
Federal Express Corporation Manufacturer's Serial
Trust No. Number Cut-Off Date
- ---------------------------- ---------------------- -------------------
N670FE 777 September 1, 1997
N671FE 778 September 18, 1997
N672FE 779 November 17, 1997
N673FE 780 December 10, 1997
N674FE 781 December 22, 1997
N581FE 48419 September 4, 1997
N583FE 48421 December 15, 1997
N584FE 48436 April 15, 1998
SERIES SUPPLEMENT 1997-1-B
Dated May 28, 1997
between
FIRST SECURITY BANK, NATIONAL ASSOCIATION
as Pass Through Trustee,
and
FEDERAL EXPRESS CORPORATION
to
PASS THROUGH TRUST AGREEMENT
Dated as of May 1, 1997
$115,800,000
Federal Express Corporation
Pass Through Trust, 1997-1-B
Federal Express Corporation
1997-1 Pass Through Certificates,
Class B
TABLE OF CONTENTS
Page
----
RECITALS............................................................. 1
ARTICLE I
CERTAIN DEFINITIONS
ARTICLE II
DESIGNATIONS; TRUST FORMATION;
ISSUANCE OF PASS THROUGH CERTIFICATES
SECTION 2.01. Designations; Aggregate Amount........................... 5
SECTION 2.02. Declaration of Trust; Authorization...................... 5
SECTION 2.03. Issuance of Pass Through Certificates.................... 6
SECTION 2.04. Purchase of Equipment Certificates....................... 6
SECTION 2.05. Representations and Warranties of the Company............ 6
SECTION 2.06. The Intercreditor Agreement.............................. 6
SECTION 2.07. Conditions Precedent..................................... 6
SECTION 2.08. Acceptance of Appointment of Pass Through Trustee........ 7
ARTICLE III
DISTRIBUTION AND RECORD DATES;
CERTIFICATE AND SPECIAL PAYMENT ACCOUNTS;
CONCERNING AUTHENTICATING AGENT, PAYING AGENT AND REGISTRAR AND
THE CERTIFICATEHOLDERS
SECTION 3.01 Distribution Dates....................................... 7
SECTION 3.02. Record Dates............................................. 7
SECTION 3.03. Certificate Account and Special Payments Account......... 7
SECTION 3.04. Form of Pass Through Certificates........................ 8
SECTION 3.05. Indenture Documents...................................... 8
SECTION 3.06. Appointment of Authenticating Agent; Paying Agent and
Registrar.............................................. 8
SECTION 3.07. Predelivery Funding...................................... 8
SECTION 3.08. ERISA.................................................... 9
SECTION 3.09. Intercreditor Agreement.................................. 9
SECTION 3.10. Ranking of Equipment Certificates........................ 9
SECTION 3.11. No Cross-Default or Cross-Collateralization of Equipment
Certificates........................................... 9
SECTION 3.12. Ranking of 1997-1-B Pass Through Certificates............ 9
SECTION 3.13. Liquidity Facility....................................... 9
SECTION 3.14. Purchase Rights of Certificateholders.................... 9
SECTION 3.15. PTC Event of Default..................................... 9
ARTICLE IV
MISCELLANEOUS
SECTION 4.01. Governing Law; Counterpart Form.......................... 10
SECTION 4.02. Reports by the Company................................... 10
SECTION 4.03. Modification and Ratification of Pass Through Agreement.. 10
SECTION 4.04. Termination.............................................. 10
EXHIBIT A Form of Pass Through Certificate
SCHEDULE I Equipment Certificates; related Indenture Documents
SCHEDULE II Cut-Off Date for each of the Aircraft
SERIES SUPPLEMENT 1997-1-B
SERIES SUPPLEMENT 1997-1-B, dated May 28, 1997 (this "Series
Supplement"), between FEDERAL EXPRESS CORPORATION, a Delaware corporation (the
"Company") and FIRST SECURITY BANK, NATIONAL ASSOCIATION, a national banking
association, as Pass Through Trustee (the "Pass Through Trustee"), to the Pass
Through Trust Agreement, dated as of May 1, 1997 (the "Pass Through
Agreement"), between the Company and the Pass Through Trustee.
RECITALS
WHEREAS, capitalized terms used herein shall have the respective
meanings set forth or referred to in Article I hereof;
WHEREAS, Section 2.01 of the Pass Through Agreement provides, among
other things, that the Company and the Pass Through Trustee may execute and
deliver one or more series supplements, each for the purpose of forming a
separate pass through trust for the benefit of the certificateholders of the
class of pass through certificates to be issued pursuant to such pass through
trust, appointing an institution to act as Pass Through Trustee if different
from the institution executing the Pass Through Agreement, establishing
certain terms of such pass through certificates, and pursuant to which the
pass through certificates of such class shall be executed and authenticated by
the Pass Through Trustee and delivered as directed by the Company;
WHEREAS, pursuant to the Participation Agreements, the Company has
agreed to cause the Equipment Certificates to be issued and sold to the Pass
Through Trustee, and the Pass Through Trustee has agreed to purchase the
Equipment Certificates, which will be held in trust as Trust Property for the
benefit of the Certificateholders;
WHEREAS, in order to facilitate such sale, the Company has agreed,
pursuant to the Underwriting Agreement, to cause the Pass Through Trustee to
issue and sell the Pass Through Certificates to the Underwriters;
WHEREAS, pursuant to the Pass Through Agreement and the terms of this
Series Supplement, the Pass Through Trustee will execute, authenticate and
deliver the Pass Through Certificates to the Underwriters upon receipt by the
Pass Through Trustee of the purchase price therefor, which will be applied in
accordance with this Series Supplement to purchase the Equipment Certificates;
WHEREAS, the Pass Through Trustee hereby declares the creation of
this Pass Through Trust for the benefit of the Certificateholders, and the
initial Certificateholders of such Pass Through Certificates, as the grantors
of such Pass Through Trust, by their respective acceptances of such Pass
Through Certificates, join in the creation of such Pass Through Trust;
WHEREAS, to facilitate the sale of the Equipment Certificates to, and
the purchase of the Equipment Certificates by, the Pass Through Trustee on
behalf of this Pass Through Trust, the Company has duly authorized the
execution and delivery of this Series Supplement as the "issuer," as such term
is defined in and solely for purposes of the Securities Act, of the Pass
Through Certificates and as the "obligor," as such term is defined in and
solely for purposes of the Trust Indenture Act, with respect to all such Pass
Through Certificates; and
WHEREAS, this Series Supplement is subject to the provisions of the
Trust Indenture Act and shall, to the extent applicable, be governed by such
provisions;
IT IS HEREBY COVENANTED AND AGREED by and between the parties hereto
as follows:
ARTICLE I
CERTAIN DEFINITIONS
All terms used in this Series Supplement that are defined in the Pass
Through Agreement, either directly or by reference therein, have the meanings
assigned to them therein as supplemented by this Article I, if applicable,
except to the extent the context requires otherwise. Any such defined term
that is defined in the Pass Through Agreement as relating to a particular Pass
Through Trust or Class rather than to any Pass Through Trust or Class
generally shall, when used in this Series Supplement, relate solely to the
Federal Express Corporation Pass Through Trust, 1997-1-B, or the Federal
Express Corporation 1997-1 Pass Through Certificates, Class B, as the case may
be, whether or not expressly so stated herein.
"Aircraft" means four McDonnell Douglas MD-11F aircraft and five
Airbus A300F4-605R aircraft, including the Engines (as such term is defined in
the related Participation Agreement) relating thereto, leased, or expected to
be leased, by the related Owner Trustee to the Company pursuant to one of nine
separate Leases, and, collectively, means all of the foregoing.
"Aircraft Delivery Date" means, for each Aircraft, the date on which
such Aircraft is delivered and sold to the Lessor (as such term is defined in
the related Participation Agreement) and leased by the Lessor to the Lessee
(as such term is defined in the related Participation Agreement) under the
Lease (as such term is defined in the related Participation Agreement), which
date shall also be the date of the initial Lease Supplement (as such term is
defined in the related Participation Agreement).
"Authenticating Agent" has the meaning set forth in Section 3.06
hereof.
"Certificate Account" means the Certificate Account specified in
Section 3.03 hereof.
"Certificateholders" means the Certificateholders of the Class of
Pass Through Certificates designated in Section 2.01 hereof.
"Collateral Account" means each of the Collateral Accounts
established pursuant to the Indentures for each of Federal Express Corporation
Trust Nos. N581FE, N583FE, N584FE, N670FE, N671FE, N672FE, N673FE and N674FE
into which the proceeds of sale of the related Equipment Certificates will be
deposited respectively.
"Cut-Off Date" means the date listed on Schedule II hereto for each
Aircraft.
"Delivery Date" means, for any Equipment Certificates, the Refunding
Date or the Pass Through Closing Date (as such term is defined in the related
Participation Agreement) for such Equipment Certificates.
"Equipment Certificates" means those Equipment Trust Certificates
listed in Schedule I hereto.
"Final Expected Distribution Date" means January 15, 2018.
"Final Legal Distribution Date" means July 15, 2019.
"Intercreditor Agreement" means the Intercreditor Agreement dated as
of May 1, 1997 among the Pass Through Trustee, the Liquidity Provider and the
Subordination Agent.
"Interest Drawing" has the meaning specified in the Intercreditor
Agreement.
"Issuance Date" means the date defined as the Closing Time in the
Underwriting Agreement.
"Liquidity Facility" means the Irrevocable Revolving Credit Agreement
Class B Pass Through Certificates dated as of May 1, 1997 between the
Subordination Agent and the Liquidity Provider.
"Liquidity Provider" means Kredietbank N.V., New York Branch or any
replacement liquidity provider.
"Participation Agreements" means those Participation Agreements
listed in Schedule I hereto.
"Pass Through Certificates" means the Pass Through Certificates
designated in Section 2.01 hereof.
"Pass Through Trust," "this Pass Through Trust" and other like words
means the Pass Through Trust designated in Section 2.01 hereof.
"Paying Agent" means the Person specified as such in Section 3.06
hereof.
"Pool Balance" means, for any Pass Through Trust or for the Pass
Through Certificates issued by any Pass Through Trust, as of any date, the
original aggregate face amount of the Pass Through Certificates of such Pass
Through Trust less the aggregate amount of all payments on such Pass Through
Certificates other than payments made in respect of interest or premium or
reimbursement of any costs and expenses in connection therewith. The Pool
Balance for each Pass Through Trust as of any Regular Distribution Date or
Special Distribution Date will be computed after giving effect to the payment
of principal, if any, on the Equipment Certificates or other Trust Property
held in such Pass Through Trust and the distribution thereof being made on
that date.
"Pool Factor" means, for any Pass Through Trust as of any Regular
Distribution Date or Special Distribution Date the quotient (rounded to the
seventh decimal place) computed by dividing (i) the Pool Balance by (ii) the
original aggregate face amount of the Pass Through Certificates of the related
Class. The Pool Factor for each Pass Through Trust as of any Regular
Distribution Date or Special Distribution Date will be computed after giving
effect to the payment of principal, if any, on such Equipment Certificates or
other Trust Property held in such Pass Through Trust and the distribution
thereof being made on that date.
"PTC Event of Default" has the meaning set forth in Section 3.15
hereof.
"Record Date" means any Record Date specified in Section 3.02 hereof.
"Registrar" means the Person specified as such in Section 3.06 hereof.
"Regular Distribution Date" means any Regular Distribution Date
specified in Section 3.01 hereof.
"Special Distribution Date" means, for any Special Payment, the
Special Distribution Date for such Special Payment specified in Section 3.01
hereof.
"Special Payments Account" means the Special Payments Account
specified in Section 3.03 hereof.
"Specified Investments" has the meaning set forth in Schedule II to
the Participation Agreements.
"Subordination Agent" means First Security Bank, National
Association, a national banking association.
"Trust Property" means, for this Pass Through Trust: (i) the
Equipment Certificates held in this Pass Through Trust; (ii) the rights of
this Pass Through Trust under the Intercreditor Agreement (including all
monies receivable in respect of such rights); (iii) all monies receivable
under the Liquidity Facility for this Pass Through Trust; and (iv) funds from
time to time deposited with the Pass Through Trustee in accounts relating to
this Pass Through Trust.
"Underwriters" means the several Underwriters named in the
Underwriting Agreement.
"Underwriting Agreement" means the Underwriting Agreement dated May
22, 1997 among the Company and Morgan Stanley & Co. Incorporated, First
Chicago Capital Markets, Inc., Goldman, Sachs & Co. and J.P. Morgan & Co.
ARTICLE II
DESIGNATIONS; TRUST FORMATION;
ISSUANCE OF PASS THROUGH CERTIFICATES
SECTION 2.01. Designations; Aggregate Amount. The Pass Through Trust
created hereby shall be designated Federal Express Corporation Pass Through
Trust, 1997-1-B (herein sometimes called this "Pass Through Trust"). The Pass
Through Certificates evidencing Fractional Undivided Interests in such Pass
Through Trust shall be designated as the Federal Express Corporation 1997-1
Pass Through Certificates, Class B (herein sometimes called the "1997-1-B Pass
Through Certificates"). The 1997-1-B Pass Through Certificates shall be the
only instruments evidencing a fractional undivided interest in such Pass
Through Trust.
Except as provided in Sections 2.08, 2.09 and 2.11 of the Pass Through
Agreement, the aggregate amount of 1997-1-B Pass Through Certificates that may
be authenticated, delivered and outstanding under this Series Supplement is
limited to $115,800,000.
SECTION 2.02. Declaration of Trust; Authorization. Each initial
Certificateholder, by its acceptance of any 1997-1-B Pass Through Certificate
is hereby deemed (1) as grantor, to join in the creation and declaration of
this Pass Through Trust and (2) as beneficiary of such Pass Through Trust, to
authorize and direct the Pass Through Trustee to execute and deliver all
documents to which the Pass Through Trustee is a party that may be necessary
or desirable to consummate the transactions contemplated hereby and to
exercise its rights and perform its duties under the Participation Agreements,
the Indentures, the Pass Through Agreement, the Intercreditor Agreement and
this Series Supplement.
The Pass Through Trustee hereby acknowledges and accepts this grant
of trust and declares that it will hold the Trust Property as Pass Through
Trustee of this Pass Through Trust for the use and benefit of the
Certificateholders.
SECTION 2.03. Issuance of Pass Through Certificates. Subject to the
terms set forth herein, on the Issuance Date (i) the Company shall direct the
Underwriters to execute a wire transfer or intra-bank transfer to the Pass
Through Trustee in the amount of the total proceeds payable by such
Underwriters pursuant to the Underwriting Agreement with respect to the
1997-1-B Pass Through Certificates and (ii) the Pass Through Trustee shall
deliver the 1997-1-B Pass Through Certificates to the Underwriters as provided
in the Underwriting Agreement upon receipt by the Pass Through Trustee of such
proceeds.
SECTION 2.04. Purchase of Equipment Certificates. On the Issuance
Date, the Pass Through Trustee shall purchase, in accordance with Section 2.02
of the Pass Through Agreement, each of the Equipment Certificates upon the
satisfaction or waiver of the conditions for such purchase by the Pass Through
Trustee set forth in the related Participation Agreement.
SECTION 2.05. Representations and Warranties of the Company. All of
the representations and warranties of the Company set forth or incorporated by
reference in Section 1 of the Underwriting Agreement are incorporated by
reference in this Series Supplement as if set forth herein and the Company
represents and warrants that such representations and warranties are true and
correct on the date hereof, except to the extent that such representations and
warranties expressly relate solely to an earlier date or later date (in which
case such representations and warranties were correct on and as of such
earlier date or will be correct on and as of such later date, as the case may
be).
SECTION 2.06. The Intercreditor Agreement. The Pass Through Trustee
is hereby directed to execute and deliver the Intercreditor Agreement on or
prior to the Issuance Date in the form delivered to the Pass Through Trustee
by the Company. The Pass Through Trustee represents and warrants that the
Intercreditor Agreement will be duly executed and delivered by one of its
officers who is duly authorized to execute and deliver such document on its
behalf.
SECTION 2.07. Conditions Precedent. The obligations of the Pass
Through Trustee to participate in the transactions described in Sections 2.03
and 2.04 hereof are subject to (i) receipt by the Pass Through Trustee of a
certificate of the Company to the same effect as the certificate of the
Company delivered to the Underwriters pursuant to Section 5(c) of the
Underwriting Agreement, and (ii) satisfaction or waiver of the conditions for
the purchase by the Underwriters of the Pass Through Certificates set forth
in Section 5 of the Underwriting Agreement, which satisfaction or waiver for
the purposes hereof shall be conclusively demonstrated by the receipt by the
Pass Through Trustee of the total proceeds payable by such Underwriters
pursuant to the Underwriting Agreement with respect to the 1997-1-B Pass
Through Certificates.
SECTION 2.08. Acceptance of Appointment of Pass Through Trustee.
First Security Bank, National Association represents and warrants that it is
qualified to serve as Pass Through Trustee and satisfies the criteria
specified in Section 10.02 of the Pass Through Agreement for eligibility as a
Pass Through Trustee. First Security Bank, National Association hereby agrees
to serve as Pass Through Trustee for the Pass Through Certificates and
acknowledges its appointment as Pass Through Trustee in accordance with the
provisions of, and subject to all of the terms and conditions set forth in,
the Pass Through Agreement and this related Series Supplement upon the
execution and delivery of this Series Supplement.
ARTICLE III
DISTRIBUTION AND RECORD DATES;
CERTIFICATE AND SPECIAL PAYMENT ACCOUNTS;
CONCERNING AUTHENTICATING AGENT, PAYING AGENT AND REGISTRAR AND
THE CERTIFICATEHOLDERS
SECTION 3.01 Distribution Dates. The Regular Distribution Dates
are each January 15 and July 15, commencing on July 15, 1997. The Special
Distribution Date is any Business Day on which a Special Payment is to be
distributed.
SECTION 3.02. Record Dates. The Record Dates for the Regular
Distribution Dates are December 31 and June 30, respectively, and the Record
Date for any Special Distribution Date is the fifteenth day preceding such
Special Distribution Date, in any event, whether or not such date is a
Business Day.
SECTION 3.03. Certificate Account and Special Payments Account. In
accordance with Section 5.01(a) of the Pass Through Agreement and upon receipt
of any Scheduled Payment, the Pass Through Trustee shall immediately deposit
such Scheduled Payment into the Certificate Account, a separate and
non-interest bearing account designated by the Pass Through Trustee to be used
for such purpose. In accordance with Section 5.01(b) of the Pass Through
Agreement and upon receipt of any Special Payment, the Pass Through Trustee
shall immediately deposit such Special Payment into the Special Payments
Account, a separate and, except as provided in Section 5.04 of the Pass
Through Agreement, non-interest bearing account designated by the Pass Through
Trustee to be used for such purpose.
SECTION 3.04. Form of Pass Through Certificates. Subject to Section
2.07 of the Pass Through Agreement, each of the 1997-1-B Pass Through
Certificates will be substantially in the form of Exhibit A hereto. The
1997-1-B Pass Through Certificates will be issued pursuant to a book-entry
system in the form of one or more Registered Global Certificates and subject
to the conditions set forth in the Letter of Representations among the
Company, the Pass Through Trustee and The Depository Trust Company.
SECTION 3.05. Indenture Documents. The related Indenture Documents
are listed in Schedule I hereto.
SECTION 3.06. Appointment of Authenticating Agent; Paying Agent and
Registrar. (a) The Pass Through Trustee may appoint an authenticating agent
(the "Authenticating Agent") with respect to the Pass Through Certificates
which shall be authorized to act on behalf of the Pass Through Trustee to
authenticate the Pass Through Certificates issued upon original issue and upon
exchange or registration of transfer thereof or pursuant to Section 2.09 of
the Pass Through Agreement. Pass Through Certificates so authenticated shall
be entitled to the benefits of the Pass Through Agreement and this Series
Supplement and shall be valid and obligatory for all purposes as if
authenticated by the Pass Through Trustee. Whenever reference is made in the
Pass Through Agreement or this Series Supplement to the authentication and
delivery of Pass Through Certificates by the Pass Through Trustee or the Pass
Through Trustee's certificate of authentication, such reference shall be
deemed to include authentication and delivery on behalf of the Pass Through
Trustee by an Authenticating Agent and a certificate of authentication
executed on behalf of the Pass Through Trustee by an Authenticating Agent.
(b) The Paying Agent, Registrar and Authenticating Agent for the
1997-1-B Pass Through Certificates initially shall be First Security Bank,
National Association. First Security Bank, National Association hereby
represents and warrants to the Company that it is qualified to serve as Paying
Agent, Registrar and Authenticating Agent under the provisions of, and subject
to all of the terms and conditions set forth in, the Pass Through Agreement
and this related Series Supplement.
SECTION 3.07. Predelivery Funding and Delayed Equipment
Certificates. (a) Predelivery Funding. During the period between the date of
issuance of Equipment Certificates by the Owner Trustee in respect of Federal
Express Corporation Trust Nos. N670FE, N671FE, N672FE, N673FE, N674FE, N581FE,
N583FE and N584FE and the Aircraft Delivery Date for the related Aircraft,
such Equipment Certificates will not be secured by such Aircraft or the
related Lease, but will be secured by each Collateral Account. Pursuant to
the related Indenture, the Indenture Trustee on behalf of the related Owner
Trustee will deposit the proceeds from the sale of the related Equipment
Certificates into each Collateral Account.
Sums deposited in each Collateral Account will be invested as set
forth in the Related Indenture.
(b) Delayed Equipment Certificates. If for any reason Equipment
Certificates are not available for purchase on the Pass Through Closing Date
(as such term is defined in the related Participation Agreement) the Pass
Through Trustee shall invest a corresponding amount of the proceeds received
from the Underwriters pursuant to the Underwriting Agreement in Specified
Investments at the risk and for the benefit of the Company until such
Equipment Certificates are available for purchase.
Sums deposited in each Collateral Account will be invested as set
forth in the Related Indenture.
SECTION 3.08. ERISA. Any Person who is acquiring a Pass Through
Certificate will be deemed to represent and warrant that (i) no assets of an
employee benefit plan subject to Title I of The Employee Retirement Income
Security Act of 1974, as amended ("ERISA") or an individual retirement account
or plan subject to Section 4975 of the Code, or any trust established under
any such plan or account, have been used to acquire or hold any of the Pass
Through Certificates or (ii) that one or more administrative or statutory
exemptions from the prohibited transaction rules under Section 406 of ERISA
and Section 4975 of the Code applies to its purchase and holding of a Pass
Through Certificate such that its purchase and holding of a Pass Through
Certificate will not result in a non-exempt prohibited transaction under
Section 406 of ERISA and Section 4975 of the Code.
SECTION 3.09. Intercreditor Agreement. The 1997-1-B Pass Through
Certificates are subject to the Intercreditor Agreement.
SECTION 3.10. Ranking of Equipment Certificates. The Equipment
Certificates will be subject to the ranking and priority as set forth in the
related Indenture Documents.
SECTION 3.11. No Cross-Default or Cross-Collateralization of
Equipment Certificates. As set forth in the related Indenture Documents,
there are no cross-collateralization provisions or cross-default provisions in
respect of the Equipment Certificates.
SECTION 3.12. Ranking of 1997-1-B Pass Through Certificates. The
1997-1-B Pass Through Certificates will be subject to the ranking and priority
as set forth in the Intercreditor Agreement.
SECTION 3.13. Liquidity Facility. Payments of interest on the
1997-1-B Pass Through Certificates will be supported by a Liquidity Facility
to be provided by the Liquidity Provider for the benefit of the
Certificateholders.
SECTION 3.14. Purchase Rights of Certificateholders. The
Certificateholders will have the purchase rights, if any, upon the occurrence
and during the continuation of a Triggering Event as set forth in the Pass
Through Agreement.
SECTION 3.15. PTC Event of Default. A PTC Event of Default shall
have occurred if, for any Pass Through Trust, the Pass Through Trustee shall
fail to pay within 10 Business Days of the due date thereof (i) the
outstanding Pool Balance of the 1997-1-B Pass Through Certificates on the
Final Legal Distribution Date or (ii) interest due on the 1997-1 Pass Through
Certificates on any Regular Distribution Date unless the Subordination Agent
has made an Interest Drawing in an amount sufficient to pay such interest and
has distributed such amount to the Certificateholders. Any failure by the Pass
Through Trustee to make expected principal distributions on the 1997-1-B Pass
Through Certificates on any Regular Distribution Date (other than the Final
Legal Distribution Date) will not be a PTC Event of Default.
ARTICLE IV
MISCELLANEOUS
SECTION 4.01. Governing Law; Counterpart Form. AS PROVIDED IN
SECTION 13.14 OF THE PASS THROUGH AGREEMENT, THIS SERIES SUPPLEMENT AND EACH
1997-1-B PASS THROUGH CERTIFICATE SHALL IN ALL RESPECTS BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK, INCLUDING ALL
MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE.
This Series Supplement may be executed by the parties hereto in
separate counterparts, each of which when so executed and delivered shall be
an original, but all such counterparts shall together constitute but one and
the same instrument.
SECTION 4.02. Reports by the Company. In addition to the reports
required to be provided by the Company pursuant to Section 4.03 of the Pass
Through Agreement, the Company agrees to furnish to the Pass Through Trustee
from time to time, such other financial information as the Pass Through
Trustee may reasonably request.
SECTION 4.03. Modification and Ratification of Pass Through
Agreement. The Pass Through Agreement is incorporated herein by reference in
its entirety, and shall be deemed to be a part of this Series Supplement as if
set forth in full herein, and is in all respects ratified and confirmed, as
supplemented and modified by this Series Supplement.
SECTION 4.04. Termination. In no event shall this Pass Through Trust
continue beyond the expiration of 21 years after the death of the last
survivor of George Pataki, Governor of New York State, living on the date of
this Series Supplement.
IN WITNESS WHEREOF, the parties have caused their names to be signed
hereto by their respective officers thereunto duly authorized, all on the day
and year first above written.
FEDERAL EXPRESS CORPORATION
By: _________________________________________
Name: Robert D. Henning
Title: Assistant Treasurer and Managing
Director - Structured Finance
FIRST SECURITY BANK, NATIONAL ASSOCIATION,
not in its individual capacity, except as
otherwise expressly provided herein, but
solely as Pass Through Trustee
By: _________________________________________
Name: Greg A. Hawley
Title: Vice President
Exhibit A
to
Series Supplement
FORM OF PASS THROUGH CERTIFICATE
THIS IS A REGISTERED GLOBAL CERTIFICATE REFERRED TO IN
SECTION 2.12 OF THE PASS THROUGH TRUST AGREEMENT.
Unless this pass through certificate is presented by an authorized
representative of The Depository Trust Company, a New York corporation
("DTC"), to the Pass Through Trustee or its agent for registration or
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 THEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an interest
herein.
FEDERAL EXPRESS CORPORATION PASS THROUGH TRUST, 1997-1-B
1997-1 Pass Through Certificate, Class B
CUSIP 31331FAV3
Final Expected Distribution Date: January 15, 2018
evidencing a fractional undivided interest in a pass through trust.
Certificate No. _______
Applicable interest rate on Equipment Certificates held in
Pass Through Trust, 1997-1-B: 7.52%.
$___________ Fractional Undivided Interest representing _______ of the Pass
Through Trust per $1,000 face amount.
THIS CERTIFIES THAT CEDE & CO., for value received, is the registered
owner of a $_________ (_____________ dollars) Fractional Undivided Interest in
the Federal Express Corporation Pass Through Trust, 1997-1-B (the "Pass
Through Trust") created and declared by First Security Bank, National
Association, as pass through trustee (the "Pass Through Trustee"), pursuant to
the Pass Through Trust Agreement dated as of May 1, 1997 (the "Pass Through
Agreement"), as supplemented by Series Supplement 1997-1-B thereto dated May
__, 1997 (the "Series Supplement") between the Pass Through Trustee and
Federal Express Corporation, a Delaware corporation (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 Pass Through Agreement and the Series
Supplement.
This Pass Through Certificate is one of the duly authorized Pass
Through Certificates designated as "Federal Express Corporation 1997-1 Pass
Through Certificates, Class B." This Pass Through Certificate is issued under
and is subject to the terms, provisions, and conditions of the Pass Through
Agreement, the Series Supplement and the Intercreditor Agreement, to which the
Certificateholder of this Pass Through Certificate by virtue of the acceptance
hereof assents and by which such Certificateholder is bound. The property of
the Pass Through Trust includes (i) the Equipment Certificates held in such
Pass Through Trust, (ii) the rights of such Pass Through Trust under the
Intercreditor Agreement (including all monies receivable in respect of such
rights), (iii) all monies receivable under the Liquidity Facility for such
Pass Through Trust, and (iv) funds from time to time deposited with the Pass
Through Trustee in accounts relating to such Pass Through Trust. (the "Trust
Property"). Each series of Equipment Certificates is secured by a security
interest in (A) an aircraft leased to or, in the case of the Airbus
A300F4-605R Aircraft, owned by the Company and, in the case of a leased
aircraft, an assignment of the rights of the Related Owner Trustee with
respect to such aircraft, including the right to receive rent and other
amounts payable under the related Lease or Indenture with respect to such
aircraft or (B) a collateral account holding Specified Investments purchased
with the proceeds of the sale of such series of Equipment Certificates. Each
of the Pass Through Certificates represents a Fractional Undivided Interest in
the Pass Through Trust and the Trust Property, and has no rights, benefits or
interests in respect of any other separate trust established pursuant to the
terms of the Pass Through Agreement for any other class of Pass Through
Certificates issued pursuant thereto.
Subject to and in accordance with the terms of the Pass Through Agreement,
the Series Supplement and the Intercreditor Agreement, from funds then
available to the Pass Through Trustee, there will be distributed on each
January 15 and July 15 (a "Regular Distribution Date"), commencing on July 15,
1997, to the Person in whose name this Pass Through Certificate is registered
at the close of business on the 15th day preceding the applicable Regular
Distribution Date, an amount in respect of the Scheduled Payments on the
Equipment Certificates due on such Regular Distribution Date, equal to the
product of the percentage interest in the Pass Through Trust evidenced by this
Pass Through Certificate and an amount equal to the sum of such Scheduled
Payments.
Subject to and in accordance with the terms of the Pass Through Agreement,
the Series Supplement and the Intercreditor Agreement, if Special Payments on
the Equipment Certificates are received by the Pass Through Trustee, from
funds then available to the Pass Through Trustee, there shall be distributed
on the applicable Special Distribution Date, to the Person in whose name this
Pass Through Certificate is registered at the close of business on the 15th
day preceding such Special Distribution Date, an amount in respect of such
Special Payments on the Equipment Certificates, equal to the product of the
percentage interest in the Pass Through Trust evidenced by this Pass Through
Certificate and an amount equal to the sum of such Special Payments so
received.
If a 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 Distribution Date and no interest shall accrue during the
intervening period. The Special Distribution Date shall be any Business Day
on which a Special Payment is to be distributed.
Distributions on this Pass Through Certificate will be made by the Pass
Through Trustee to the Person entitled thereto, without the presentation or
surrender of this Pass Through Certificate or the making of any notation
hereon. Except as otherwise provided in the Pass Through Agreement and
notwithstanding the above, the final distribution on this Pass Through
Certificate will be made after notice is mailed by the Pass Through Trustee of
the pendency of such distribution and only upon presentation and surrender of
this Pass Through Certificate at the office or agency of the Pass Through
Trustee specified in such notice.
Any Person acquiring this Pass Through Certificate will be deemed to
represent and warrant that (i) no assets of an employee benefit plan subject
to Title I of The Employee Retirement Income Security Act of 1974, as amended
("ERISA") or an individual retirement account or plan subject to Section 4975
of the Code, or any trust established under any such plan or account, have
been used to acquire or hold any of the Pass Through Certificates or (ii) that
one or more administrative or statutory exemptions from the prohibited
transaction rules under Section 406 of ERISA and Section 4975 of the Code
applies to its purchase and holding of this Pass Through Certificate such that
its purchase and holding of this Pass Through Certificate will not result in a
non-exempt prohibited transaction under Section 406 of ERISA and Section 4975
of the Code.
This Pass Through Certificate shall be governed by and construed in
accordance with the laws of the State of New York.
Reference is hereby made to the further provisions of this Pass Through
Certificate set forth on the reverse hereof, which further provisions shall
for all purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the
Pass Through Trustee, by manual signature, this Pass Through Certificate shall
not be entitled to any benefit under the Pass Through Trust or be valid for
any purpose.
IN WITNESS WHEREOF, the Pass Through Trustee has caused this Pass Through
Certificate to be duly executed.
FEDERAL EXPRESS CORPORATION
PASS THROUGH TRUST, 1997-1-B
FIRST SECURITY BANK, NATIONAL ASSOCIATION,
not in its individual capacity, except as
otherwise expressly provided herein, but
solely as Pass Through Trustee
By: __________________________________________
Authorized Signatory
[FORM OF THE PASS THROUGH TRUSTEE'S CERTIFICATE OF AUTHENTICATION]
Dated: May ___, 1997
This is one of the Pass Through Certificates referred to in the
within-mentioned Pass Through Agreement and the Series Supplement.
FIRST SECURITY BANK, NATIONAL ASSOCIATION,
not in its individual capacity, except as
otherwise expressly provided herein, but
solely as Pass Through Trustee
By: __________________________________________
Authorized Signatory
[Reverse of Pass Through Certificate]
The Pass Through Certificates do not represent a direct obligation of, or
an obligation guaranteed by, or an interest in, the Company or the Pass
Through Trustee or any affiliate thereof. The Pass Through Certificates are
limited in right of payment, all as more specifically set forth on the face
hereof and in the Pass Through Agreement, the Intercreditor Agreement and the
Series Supplement. Subject to the Intercreditor Agreement, all payments or
distributions made to Certificateholders under the Pass Through Agreement
shall be made only from the Trust Property and only to the extent that the
Pass Through Trustee shall have sufficient income or proceeds from the Trust
Property to make such payments in accordance with the terms of the Pass
Through Agreement and the Series Supplement. Each Certificateholder of this
Pass Through 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 Pass
Through Agreement, the Intercreditor Agreement and the Series Supplement.
In connection with withholding taxes, under certain circumstances the Pass
Through Trustee may retain certain amounts otherwise distributable to a
Certificateholder. The purchase by any Certificateholder of any Pass Through
Certificate constitutes the consent of such Certificateholder to such
retention in accordance with the terms of the Pass Through Agreement.
This Pass Through Certificate does not purport to summarize the Pass
Through Agreement, the Intercreditor Agreement and the Series Supplement
and reference is made to the Pass Through Agreement, the Intercreditor
Agreement and the Series Supplement for information with respect to the
interests, rights, benefits, obligations, proceeds and duties evidenced
hereby. A copy of the Pass Through Agreement, the Intercreditor Agreement
and the Series Supplement may be examined by any Certificateholder upon
request during normal business hours at the principal office of the Pass
Through Trustee, and at such other places designated by the Pass Through
Trustee.
As of the date of issuance of this Pass Through Certificate, and assuming
that no prepayment or default in respect of payment on the Equipment
Certificates shall occur, the aggregate scheduled repayments of principal on
the Equipment Certificates for the Pass Through Trust and the resulting Pool
Factors for the Pass Through Trust after taking into account each such
repayment are set forth below:
Class B Trust
Equipment Certificates
Regular Scheduled Payments
Distribution Date of Principal Expected Pool Factor
- --------------------- ---------------------- --------------------
May 28, 1997 0 1.00000000
July 15, 1997 0 1.00000000
January 15, 1998 $1,171,776 0.9898810
July 15, 1998 0 0.9898810
January 15, 1999 1,947,506 0.9730632
July 15, 1999 0 0.9730632
January 15, 2000 2,347,516 0.9527910
July 15, 2000 0 0.9527910
January 15, 2001 2,347,516 0.9325189
July 15, 2001 0 0.9325189
January 15, 2002 2,347,516 0.9122467
July 15, 2002 0 0.9122467
January 15, 2003 2,075,927 0.8943199
July 15, 2003 271,589 0.8919746
January 15, 2004 1,800,026 0.8764303
July 15, 2004 547,490 0.8717024
January 15, 2005 1,518,492 0.8585893
July 15, 2005 829,030 0.8514302
January 15, 2006 1,666,446 0.8370395
July 15, 2006 681,072 0.8311580
January 15, 2007 3,469,888 0.8011935
July 15, 2007 280,600 0.7987704
January 15, 2008 4,599,212 0.7590535
July 15, 2008 0 0.7590535
January 15, 2009 9,247,657 0.6791947
July 15, 2009 0 0.6791947
January 15, 2010 13,818,441 0.5598644
July 15, 2010 0 0.5598644
January 15, 2011 24,124,500 0.3515354
July 15, 2011 0 0.3515354
January 15, 2012 21,710,472 0.1640529
July 15, 2012 0 0.1640529
January 15, 2013 6,077,266 0.1115722
July 15, 2013 0 0.1115722
January 15, 2014 0 0.1115722
July 15, 2014 0 0.1115722
January 15, 2015 0 0.1115722
July 15, 2015 0 0.1115722
January 15, 2016 548,889 0.1068322
July 15, 2016 0 0.1068322
January 15, 2017 2,408,507 0.0860344
July 15, 2017 0 0.0860334
January 15, 2018 9,262,666 0.0000000
Each Certificateholder of this Pass Through Certificate by its acceptance
hereof, acknowledges that the terms of the Participation Agreement, the Lease
and the Indenture as they relate to two of the aircraft may differ from the
terms set forth or incorporated by reference in this Pass Through Certificate.
The Pass Through Agreement, the Intercreditor Agreement and the Series
Supplement permit, with certain exceptions provided therein, the amendment
thereof and the modification of the rights and obligations of the Company and
the rights of the Certificateholders under the Pass Through Trust at any time
by the Company and the Pass Through Trustee with the consent of the Majority
In Interest of Certificateholders in the Pass Through Trust. Any such consent
by the Certificateholder of this Pass Through Certificate shall be conclusive
and binding on such Certificateholder and upon all future Certificateholders
of this Pass Through Certificate and of any Pass Through Certificate issued
upon the transfer hereof or in exchange hereof or in lieu hereof whether or not
notation of such consent is made upon this Pass Through Certificate. The Pass
Through Agreement, the Intercreditor Agreement and the Series Supplement also
permit the amendment thereof, in certain limited circumstances, without the
consent of the Certificateholders of any of the Pass Through Certificates.
As provided in the Pass Through Agreement and the Series Supplement and
subject to certain limitations set forth therein, the transfer of this Pass
Through Certificate is registrable in the Register upon surrender of this Pass
Through Certificate for registration of transfer to the Pass Through 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
Pass Through 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 Pass Through Certificates of authorized
denominations evidencing the same aggregate Fractional Undivided Interest
in the Pass Through Trust will be issued to the designated transferee or
transferees.
The Pass Through Certificates are issuable only as registered Pass Through
Certificates without coupons in minimum denominations of $1,000 fractional
undivided interests and integral multiples thereof. As provided in the Pass
Through Agreement and the Series Supplement and subject to certain limitations
set forth therein, the Pass Through Certificates are exchangeable for new Pass
Through Certificates of authorized denominations evidencing the same aggregate
Fractional Undivided Interest in the Pass Through 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 Pass Through Trustee may require payment of a sum sufficient
to cover any tax or governmental charge payable in connection therewith.
The Pass Through Trustee, the Registrar, and any agent of the Pass Through
Trustee or the Registrar may treat the person in whose name this Pass Through
Certificate is registered as the owner hereof for all purposes, and neither
the Pass Through Trustee, the Registrar, nor any such agent shall be affected
by any notice to the contrary.
The obligations and responsibilities created by the Pass Through Agreement
and the Series Supplement and the Pass Through Trust created thereby shall
terminate upon the distribution to Certificateholders of all amounts required
to be distributed to them pursuant to the Pass Through Agreement, the
Intercreditor Agreement and the Series Supplement and the disposition of all
property held as part of the Trust Property.
Schedule I
to
Series Supplement
Federal Express Corporation
Pass Through Trust, 1997-1-B
Class B
Equipment Certificates;
Related Indenture Documents
1. Equipment Certificates (Federal Express Corporation Trust No. N581FE):
Interest Rate: 7.52%
Maturity: January 15, 2013
Principal Amount: $13,210,000
Related Indenture Documents:
Trust Indenture and Security Agreement (Federal Express Corporation Trust
No. N581FE) dated as of May 1, 1997, between Wilmington Trust Company, not
in its individual capacity, except as otherwise provided therein, but
solely as Owner Trustee, and First Security Bank, National Association, not
in its individual capacity, except as otherwise provided therein, but
solely as Indenture Trustee;
Participation Agreement (Federal Express Corporation Trust No. N581FE)
dated as of May 1, 1997, among Federal Express Corporation, as Lessee,
AmSouth Leasing, Ltd. and BTM Funding Corporation, as Owner Participants,
Wilmington Trust Company, not in its individual capacity, except as
otherwise provided therein, but solely as Owner Trustee, First Security
Bank, National Association, not in its individual capacity, except as
otherwise provided therein, but solely as Indenture Trustee, First Security
Bank, National Association, not in its individual capacity, except as
otherwise provided therein, but solely as Pass Through Trustee, and First
Security Bank, National Association, not in its individual capacity, except
as otherwise provided therein, but solely as Subordination Agent;
Trust Agreement (Federal Express Corporation Trust No. N581FE) dated as of
May 1, 1997, among AmSouth Leasing, Ltd. and BTM Funding Corporation, as
Owner Participants, and Wilmington Trust Company;
Lease Agreement (Federal Express Corporation Trust No. N581FE) dated as of
May 1, 1997, between Wilmington Trust Company, not in its individual
capacity, except as otherwise provided therein, but solely as Owner Trustee
and Lessor, and Federal Express Corporation, as Lessee; and
Owner Participant Guaranty (Federal Express Corporation Trust No. N581FE)
dated May 28, 1997, by AmSouth Bank of Alabama, as the Owner Participant
Guarantor in favor of the Lessee, the Owner Trustee, the Indenture Trustee
and the Pass Through Trustee.
Owner Participant Guaranty (Federal Express Corporation Trust No. N581FE)
dated May 28, 1997, by BTM Capital Corporation, as the Owner Participant
Guarantor in favor of the Lessee, the Owner Trustee, the Indenture Trustee
and the Pass Through Trustee.
2. Equipment Certificates (Federal Express Corporation Trust No. N583FE):
Interest Rate: 7.52%
Maturity: January 15, 2016
Principal Amount: $12,811,000
Related Indenture Documents:
Trust Indenture and Security Agreement (Federal Express Corporation Trust
No. N583FE) dated as of May 1, 1997, between State Street Bank and Trust
Company of Connecticut, National Association, not in its individual
capacity, except as otherwise provided therein, but solely as Owner
Trustee, and First Security Bank, National Association, not in its
individual capacity, except as otherwise provided therein, but solely as
Indenture Trustee;
Participation Agreement (Federal Express Corporation Trust No. N583FE)
dated as of May 1, 1997, among Federal Express Corporation, as Lessee and
Initial Owner Participant, State Street Bank and Trust Company of
Connecticut, National Association, not in its individual capacity, except
as otherwise provided therein, but solely as Owner Trustee, First Security
Bank, National Association, not in its individual capacity, except as
otherwise provided therein, but solely as Indenture Trustee, First Security
Bank, National Association, not in its individual capacity, except as
otherwise provided therein, but solely as Pass Through Trustee, and First
Security Bank, National Association, not in its individual capacity, except
as otherwise provided therein, but solely as Subordination Agent;
Trust Agreement (Federal Express Corporation Trust No. N583FE) dated as of
May 1, 1997, between Federal Express Corporation, as Initial Owner
Participant, and State Street Bank and Trust Company of Connecticut,
National Association; and
Lease Agreement (Federal Express Corporation Trust No. N583FE) dated as of
May 1, 1997, between State Street Bank and Trust Company of Connecticut,
National Association, not in its individual capacity, except as otherwise
provided therein, but solely as Owner Trustee and Lessor, and Federal
Express Corporation, as Lessee.
3. Equipment Certificates (Federal Express Corporation Trust No. N584FE):
Interest Rate: 7.52%
Maturity: January 15, 2017
Principal Amount: $13,616,000
Related Indenture Documents:
Trust Indenture and Security Agreement (Federal Express Corporation Trust
No. N584FE) dated as of May 1, 1997, between State Street Bank and Trust
Company of Connecticut, National Association, not in its individual
capacity, except as otherwise provided therein, but solely as Owner
Trustee, and First Security Bank, National Association, not in its
individual capacity, except as otherwise provided therein, but solely as
Indenture Trustee;
Participation Agreement (Federal Express Corporation Trust No. N584FE)
dated as of May 1, 1997, among Federal Express Corporation, as Lessee and
Initial Owner Participant, State Street Bank and Trust Company of
Connecticut, National Association, not in its individual capacity, except
as otherwise provided therein, but solely as Owner Trustee, First Security
Bank, National Association, not in its individual capacity, except as
otherwise provided therein, but solely as Indenture Trustee, First Security
Bank, National Association, not in its individual capacity, except as
otherwise provided therein, but solely as Pass Through Trustee, and First
Security Bank, National Association, not in its individual capacity, except
as otherwise provided therein, but solely as Subordination Agent;
Trust Agreement (Federal Express Corporation Trust No. N584FE) dated as of
May 1, 1997, between Federal Express Corporation, as Initial Owner
Participant, and State Street Bank and Trust Company of Connecticut,
National Association; and
Lease Agreement (Federal Express Corporation Trust No. N584FE) dated as of
May 1, 1997, between State Street Bank and Trust Company of Connecticut,
National Association, not in its individual capacity, except as otherwise
provided therein, but solely as Owner Trustee and Lessor, and Federal
Express Corporation, as Lessee.
4. Equipment Certificates (Federal Express Corporation Trust No. N587FE):
Interest Rate: 7.52%
Maturity: January 15, 2010
Principal Amount: $13,796,000
Related Indenture Documents:
Trust Indenture and Security Agreement (Federal Express Corporation Trust
No. N587FE) dated as of December 1, 1996, as amended and restated as of May
1, 1997, between Wilmington Trust Company, not in its individual capacity,
except as otherwise provided therein, but solely as Owner Trustee, and
First Security Bank, National Association, not in its individual capacity,
except as otherwise provided therein, but solely as Indenture Trustee;
Trust Indenture and Security Agreement Supplement No. 1 (Federal Express
Corporation Trust No. N587FE) dated December 13, 1996, between Wilmington
Trust Company, not in its individual capacity, except as otherwise provided
therein, but solely as Owner Trustee, and First Security Bank, National
Association, not in its individual capacity, except as otherwise provided
therein, but solely as Indenture Trustee;
Participation Agreement (Federal Express Corporation Trust No. N587FE)
dated as of December 1, 1996, as amended and restated as of May 1, 1997,
among Federal Express Corporation, as Lessee, CMCA Lease, Inc. and Norwest
Bank Minnesota, National Association, as Owner Participants, Wilmington
Trust Company, not in its individual capacity, except as otherwise provided
therein, but solely as Owner Trustee, State Street Bank and Trust Company,
not in its individual capacity, except as otherwise provided therein, but
solely as Original Indenture Trustee, First Security Bank, National
Association, not in its individual capacity, except as otherwise provided
therein, but solely as Indenture Trustee, First Security Bank, National
Association, not in its individual capacity, except as otherwise provided
therein, but solely as Pass Through Trustee, First Security Bank, National
Association, not in its individual capacity, except as otherwise provided
therein, but solely as Subordination Agent, and Morgan Guaranty Trust
Company of New York, as Original Loan Participant;
Trust Agreement (Federal Express Corporation Trust No. N587FE) dated as of
December 1, 1996, as amended and restated as of May 1, 1997, among CMCA
Lease, Inc. and Norwest Bank Minnesota, National Association, as Owner
Participants, and Wilmington Trust Company;
Lease Agreement (Federal Express Corporation Trust No. N587FE) dated as of
December 1, 1996, as amended and restated as of May 1, 1997, between
Wilmington Trust Company, not in its individual capacity, except as
otherwise provided therein, but solely as Owner Trustee and Lessor, and
Federal Express Corporation, as Lessee;
Lease Supplement No. 1 (Federal Express Corporation Trust No. N587FE) dated
December 13, 1996, between Wilmington Trust Company, not in its individual
capacity, except as otherwise provided therein, but solely as Owner Trustee
and Lessor, and Federal Express Corporation, as Lessee; and
Owner Participant Guaranty (Federal Express Corporation Trust No. N587FE)
dated December 13, 1996, as amended and restated as of May 28, 1997, by
Comerica Bank, as the Owner Participant Guarantor in favor of the Lessee,
the Owner Trustee, the Indenture Trustee and the Pass Through Trustee.
5. Equipment Certificates (Federal Express Corporation Trust No. N670FE):
Interest Rate: 7.52%
Maturity: January 15, 2018
Principal Amount: $12,507,000
Related Indenture Documents:
Trust Indenture and Security Agreement (Federal Express Corporation Trust
No. N670FE) dated as of May 1, 1997, between State Street Bank and Trust
Company of Connecticut, National Association, not in its individual
capacity, except as otherwise provided therein, but solely as Owner
Trustee, and First Security Bank, National Association, not in its
individual capacity, except as otherwise provided therein, but solely as
Indenture Trustee;
Participation Agreement (Federal Express Corporation Trust No. N670FE)
dated as of May 1, 1997, among Federal Express Corporation, as Lessee, PMCC
Leasing Corporation, as Owner Participant, State Street Bank and Trust
Company of Connecticut, National Association, not in its individual
capacity, except as otherwise provided therein, but solely as Owner
Trustee, First Security Bank, National Association, not in its individual
capacity, except as otherwise provided therein, but solely as Indenture
Trustee, First Security Bank, National Association, not in its individual
capacity, except as otherwise provided therein, but solely as Pass Through
Trustee, and First Security Bank, National Association, not in its
individual capacity, except as otherwise provided therein, but solely as
Subordination Agent;
Trust Agreement (Federal Express Corporation Trust No. N670FE) dated as of
May 1, 1997, between PMCC Leasing Corporation, as Owner Participant, and
State Street Bank and Trust Company of Connecticut, National Association;
Lease Agreement (Federal Express Corporation Trust No. N670FE) dated as of
May 1, 1997, between State Street Bank and Trust Company of Connecticut,
National Association, not in its individual capacity, except as otherwise
provided therein, but solely as Owner Trustee and Lessor, and Federal
Express Corporation, as Lessee; and
Owner Participant Guaranty (Federal Express Corporation Trust No. N670FE)
dated May 28, 1997, by Philip Morris Capital Corporation, as the Owner
Participant Guarantor in favor of the Lessee, the Owner Trustee, the
Indenture Trustee and the Pass Through Trustee.
6. Equipment Certificates (Federal Express Corporation Trust No. N671FE):
Interest Rate: 7.52%
Maturity: January 15, 2018
Principal Amount: $12,507,000
Related Indenture Documents:
Trust Indenture and Security Agreement (Federal Express Corporation Trust
No. N671FE) dated as of May 1, 1997, between State Street Bank and Trust
Company of Connecticut, National Association, not in its individual
capacity, except as otherwise provided therein, but solely as Owner
Trustee, and First Security Bank, National Association, not in its
individual capacity, except as otherwise provided therein, but solely as
Indenture Trustee;
Participation Agreement (Federal Express Corporation Trust No. N671FE)
dated as of May 1, 1997, among Federal Express Corporation, as Lessee, PMCC
Leasing Corporation, as Owner Participant, State Street Bank and Trust
Company of Connecticut, National Association, not in its individual
capacity, except as otherwise provided therein, but solely as Owner
Trustee, First Security Bank, National Association, not in its individual
capacity, except as otherwise provided therein, but solely as Indenture
Trustee, First Security Bank, National Association, not in its individual
capacity, except as otherwise provided therein, but solely as Pass Through
Trustee, and First Security Bank, National Association, not in its
individual capacity, except as otherwise provided therein, but solely as
Subordination Agent;
Trust Agreement (Federal Express Corporation Trust No. N671FE) dated as of
May 1, 1997, between PMCC Leasing Corporation, as Owner Participant, and
State Street Bank and Trust Company of Connecticut, National Association;
Lease Agreement (Federal Express Corporation Trust No. N671FE) dated as of
May 1, 1997, between State Street Bank and Trust Company of Connecticut,
National Association, not in its individual capacity, except as otherwise
provided therein, but solely as Owner Trustee and Lessor, and Federal
Express Corporation, as Lessee; and
Owner Participant Guaranty (Federal Express Corporation Trust No. N671FE)
dated May 28, 1997, by Philip Morris Capital Corporation, as the Owner
Participant Guarantor in favor of the Lessee, the Owner Trustee, the
Indenture Trustee and the Pass Through Trustee.
7. Equipment Certificates (Federal Express Corporation Trust No. N672FE):
Interest Rate: 7.52%
Maturity: January 15, 2018
Principal Amount: $12,515,000
Related Indenture Documents:
Trust Indenture and Security Agreement (Federal Express Corporation Trust
No. N672FE) dated as of May 1, 1997, between State Street Bank and Trust
Company of Connecticut, National Association, not in its individual
capacity, except as otherwise provided therein, but solely as Owner
Trustee, and First Security Bank, National Association, not in its
individual capacity, except as otherwise provided therein, but solely as
Indenture Trustee;
Participation Agreement (Federal Express Corporation Trust No. N672FE)
dated as of May 1, 1997, among Federal Express Corporation, as Lessee, PMCC
Leasing Corporation, as Owner Participant, State Street Bank and Trust
Company of Connecticut, National Association, not in its individual
capacity, except as otherwise provided therein, but solely as Owner
Trustee, First Security Bank, National Association, not in its individual
capacity, except as otherwise provided therein, but solely as Indenture
Trustee, First Security Bank, National Association, not in its individual
capacity, except as otherwise provided therein, but solely as Pass Through
Trustee, and First Security Bank, National Association, not in its
individual capacity, except as otherwise provided therein, but solely as
Subordination Agent;
Trust Agreement (Federal Express Corporation Trust No. N672FE) dated as of
May 1, 1997, between PMCC Leasing Corporation, as Owner Participant, and
State Street Bank and Trust Company of Connecticut, National Association;
Lease Agreement (Federal Express Corporation Trust No. N672FE) dated as of
May 1, 1997, between State Street Bank and Trust Company of Connecticut,
National Association, not in its individual capacity, except as otherwise
provided therein, but solely as Owner Trustee and Lessor, and Federal
Express Corporation, as Lessee; and
Owner Participant Guaranty (Federal Express Corporation Trust No. N672FE)
dated May 28, 1997, by Philip Morris Capital Corporation, as the Owner
Participant Guarantor in favor of the Lessee, the Owner Trustee, the
Indenture Trustee and the Pass Through Trustee.
8. Equipment Certificates (Federal Express Corporation Trust No. N673FE):
Interest Rate: 7.52%
Maturity: January 15, 2018
Principal Amount: $12,408,000
Related Indenture Documents:
Trust Indenture and Security Agreement (Federal Express Corporation Trust
No. N673FE) dated as of May 1, 1997, between State Street Bank and Trust
Company of Connecticut, National Association, not in its individual
capacity, except as otherwise provided therein, but solely as Owner
Trustee, and First Security Bank, National Association, not in its
individual capacity, except as otherwise provided therein, but solely as
Indenture Trustee;
Participation Agreement (Federal Express Corporation Trust No. N673FE)
dated as of May 1, 1997, among Federal Express Corporation, as Lessee, PMCC
Leasing Corporation, as Owner Participant, State Street Bank and Trust
Company of Connecticut, National Association, not in its individual
capacity, except as otherwise provided therein, but solely as Owner
Trustee, First Security Bank, National Association, not in its individual
capacity, except as otherwise provided therein, but solely as Indenture
Trustee, First Security Bank, National Association, not in its individual
capacity, except as otherwise provided therein, but solely as Pass Through
Trustee, and First Security Bank, National Association, not in its
individual capacity, except as otherwise provided therein, but solely as
Subordination Agent;
Trust Agreement (Federal Express Corporation Trust No. N673FE) dated as of
May 1, 1997, between PMCC Leasing Corporation, as Owner Participant, and
State Street Bank and Trust Company of Connecticut, National Association;
Lease Agreement (Federal Express Corporation Trust No. N673FE) dated as of
May 1, 1997, between State Street Bank and Trust Company of Connecticut,
National Association, not in its individual capacity, except as otherwise
provided therein, but solely as Owner Trustee and Lessor, and Federal
Express Corporation, as Lessee; and
Owner Participant Guaranty (Federal Express Corporation Trust No. N673FE)
dated May 28, 1997, by Philip Morris Capital Corporation, as the Owner
Participant Guarantor in favor of the Lessee, the Owner Trustee, the
Indenture Trustee and the Pass Through Trustee.
9. Equipment Certificates (Federal Express Corporation Trust No. N674FE):
Interest Rate: 7.52%
Maturity: January 15, 2018
Principal Amount: $12,430,000
Related Indenture Documents:
Trust Indenture and Security Agreement (Federal Express Corporation Trust
No. N674FE) dated as of May 1, 1997, between State Street Bank and Trust
Company of Connecticut, National Association, not in its individual
capacity, except as otherwise provided therein, but solely as Owner
Trustee, and First Security Bank, National Association, not in its
individual capacity, except as otherwise provided therein, but solely as
Indenture Trustee;
Participation Agreement (Federal Express Corporation Trust No. N674FE)
dated as of May 1, 1997, among Federal Express Corporation, as Lessee, PMCC
Leasing Corporation, as Owner Participant, State Street Bank and Trust
Company of Connecticut, National Association, not in its individual
capacity, except as otherwise provided therein, but solely as Owner
Trustee, First Security Bank, National Association, not in its individual
capacity, except as otherwise provided therein, but solely as Indenture
Trustee, First Security Bank, National Association, not in its individual
capacity, except as otherwise provided therein, but solely as Pass Through
Trustee, and First Security Bank, National Association, not in its
individual capacity, except as otherwise provided therein, but solely as
Subordination Agent;
Trust Agreement (Federal Express Corporation Trust No. N674FE) dated as of
May 1, 1997, between PMCC Leasing Corporation, as Owner Participant, and
State Street Bank and Trust Company of Connecticut, National Association;
Lease Agreement (Federal Express Corporation Trust No. N674FE) dated as of
May 1, 1997, between State Street Bank and Trust Company of Connecticut,
National Association, not in its individual capacity, except as otherwise
provided therein, but solely as Owner Trustee and Lessor, and Federal
Express Corporation, as Lessee; and
Owner Participant Guaranty (Federal Express Corporation Trust No. N674FE)
dated May 28, 1997, by Philip Morris Capital Corporation, as the Owner
Participant Guarantor in favor of the Lessee, the Owner Trustee, the
Indenture Trustee and the Pass Through Trustee.
Schedule II
to
Series Supplement
Cut-Off Date for each of the Aircraft
Federal Express Corporation Manufacturer's Serial
Trust No. Number Cut-Off Date
- ---------------------------- ---------------------- -------------------
N670FE 777 September 1, 1997
N671FE 778 September 18, 1997
N672FE 779 November 17, 1997
N673FE 780 December 10, 1997
N674FE 781 December 22, 1997
N581FE 48419 September 15, 1997
N583FE 48421 December 15, 1997
N584FE 48436 April 15, 1998
SERIES SUPPLEMENT 1997-1-C
Dated May 28, 1997
between
FIRST SECURITY BANK, NATIONAL ASSOCIATION
as Pass Through Trustee,
and
FEDERAL EXPRESS CORPORATION
to
PASS THROUGH TRUST AGREEMENT
Dated as of May 1, 1997
$129,185,000
Federal Express Corporation
Pass Through Trust, 1997-1-C
Federal Express Corporation
1997-1 Pass Through Certificates,
Class C
___________________________________________________________________________
TABLE OF CONTENTS
Page
RECITALS............................................................. 1
ARTICLE I
CERTAIN DEFINITIONS
ARTICLE II
DESIGNATIONS; TRUST FORMATION;
ISSUANCE OF PASS THROUGH CERTIFICATES
SECTION 2.01. Designations; Aggregate Amount........................... 5
SECTION 2.02. Declaration of Trust; Authorization...................... 5
SECTION 2.03. Issuance of Pass Through Certificates.................... 6
SECTION 2.04. Purchase of Equipment Certificates....................... 6
SECTION 2.05. Representations and Warranties of the Company............ 6
SECTION 2.06. The Intercreditor Agreement.............................. 6
SECTION 2.07. Conditions Precedent..................................... 6
SECTION 2.08. Acceptance of Appointment of Pass Through Trustee........ 7
ARTICLE III
DISTRIBUTION AND RECORD DATES;
CERTIFICATE AND SPECIAL PAYMENT ACCOUNTS;
CONCERNING AUTHENTICATING AGENT, PAYING AGENT AND REGISTRAR AND
THE CERTIFICATEHOLDERS
SECTION 3.01 Distribution Dates....................................... 7
SECTION 3.02. Record Dates............................................. 7
SECTION 3.03. Certificate Account and Special Payments Account......... 7
SECTION 3.04. Form of Pass Through Certificates........................ 8
SECTION 3.05. Indenture Documents...................................... 8
SECTION 3.06. Appointment of Authenticating Agent; Paying Agent and
Registrar.............................................. 8
SECTION 3.07. Predelivery Funding...................................... 8
SECTION 3.08. ERISA.................................................... 9
SECTION 3.09. Intercreditor Agreement.................................. 9
SECTION 3.10. Ranking of Equipment Certificates........................ 9
SECTION 3.11. No Cross-Default or Cross-Collateralization of Equipment
Certificates........................................... 9
SECTION 3.12. Ranking of 1997-1-C Pass Through Certificates............ 9
SECTION 3.13. Liquidity Facility....................................... 9
SECTION 3.14. Purchase Rights of Certificateholders.................... 9
SECTION 3.15. PTC Event of Default..................................... 9
ARTICLE IV
MISCELLANEOUS
SECTION 4.01. Governing Law; Counterpart Form.......................... 10
SECTION 4.02. Reports by the Company................................... 10
SECTION 4.03. Modification and Ratification of Pass Through Agreement.. 10
SECTION 4.04. Termination.............................................. 10
EXHIBIT A Form of Pass Through Certificate
SCHEDULE I Equipment Certificates; related Indenture Documents
SCHEDULE II Cut-Off Date for each of the Aircraft
SERIES SUPPLEMENT 1997-1-C
SERIES SUPPLEMENT 1997-1-C, dated May 28, 1997 (this "Series
Supplement"), between FEDERAL EXPRESS CORPORATION, a Delaware corporation (the
"Company") and FIRST SECURITY BANK, NATIONAL ASSOCIATION, a national banking
association, as Pass Through Trustee (the "Pass Through Trustee"), to the Pass
Through Trust Agreement, dated as of May 1, 1997 (the "Pass Through
Agreement"), between the Company and the Pass Through Trustee.
RECITALS
WHEREAS, capitalized terms used herein shall have the respective
meanings set forth or referred to in Article I hereof;
WHEREAS, Section 2.01 of the Pass Through Agreement provides, among
other things, that the Company and the Pass Through Trustee may execute and
deliver one or more series supplements, each for the purpose of forming a
separate pass through trust for the benefit of the certificateholders of the
class of pass through certificates to be issued pursuant to such pass through
trust, appointing an institution to act as Pass Through Trustee if different
from the institution executing the Pass Through Agreement, establishing
certain terms of such pass through certificates, and pursuant to which the
pass through certificates of such class shall be executed and authenticated by
the Pass Through Trustee and delivered as directed by the Company;
WHEREAS, pursuant to the Participation Agreements, the Company has
agreed to cause the Equipment Certificates to be issued and sold to the Pass
Through Trustee, and the Pass Through Trustee has agreed to purchase the
Equipment Certificates, which will be held in trust as Trust Property for the
benefit of the Certificateholders;
WHEREAS, in order to facilitate such sale, the Company has agreed,
pursuant to the Underwriting Agreement, to cause the Pass Through Trustee to
issue and sell the Pass Through Certificates to the Underwriters;
WHEREAS, pursuant to the Pass Through Agreement and the terms of this
Series Supplement, the Pass Through Trustee will execute, authenticate and
deliver the Pass Through Certificates to the Underwriters upon receipt by the
Pass Through Trustee of the purchase price therefor, which will be applied in
accordance with this Series Supplement to purchase the Equipment Certificates;
WHEREAS, the Pass Through Trustee hereby declares the creation of
this Pass Through Trust for the benefit of the Certificateholders, and the
initial Certificateholders of such Pass Through Certificates, as the grantors
of such Pass Through Trust, by their respective acceptances of such Pass
Through Certificates, join in the creation of such Pass Through Trust;
WHEREAS, to facilitate the sale of the Equipment Certificates to, and
the purchase of the Equipment Certificates by, the Pass Through Trustee on
behalf of this Pass Through Trust, the Company has duly authorized the
execution and delivery of this Series Supplement as the "issuer," as such term
is defined in and solely for purposes of the Securities Act, of the Pass
Through Certificates and as the "obligor," as such term is defined in and
solely for purposes of the Trust Indenture Act, with respect to all such Pass
Through Certificates; and
WHEREAS, this Series Supplement is subject to the provisions of the
Trust Indenture Act and shall, to the extent applicable, be governed by such
provisions;
IT IS HEREBY COVENANTED AND AGREED by and between the parties hereto
as follows:
ARTICLE I
CERTAIN DEFINITIONS
All terms used in this Series Supplement that are defined in the Pass
Through Agreement, either directly or by reference therein, have the meanings
assigned to them therein as supplemented by this Article I, if applicable,
except to the extent the context requires otherwise. Any such defined term
that is defined in the Pass Through Agreement as relating to a particular Pass
Through Trust or Class rather than to any Pass Through Trust or Class
generally shall, when used in this Series Supplement, relate solely to the
Federal Express Corporation Pass Through Trust, 1997-1-C, or the Federal
Express Corporation 1997-1 Pass Through Certificates, Class C, as the case may
be, whether or not expressly so stated herein.
"Aircraft" means four McDonnell Douglas MD-11F aircraft and five
Airbus A300F4-605R aircraft, including the Engines (as such term is defined in
the related Participation Agreement) relating thereto, leased, or expected to
be leased, by the related Owner Trustee to the Company pursuant to one of nine
separate Leases, and, collectively, means all of the foregoing.
"Aircraft Delivery Date" means, for each Aircraft, the date on which
such Aircraft is delivered and sold to the Lessor (as such term is defined in
the related Participation Agreement) and leased by the Lessor to the Lessee
(as such term is defined in the related Participation Agreement) under the
Lease (as such term is defined in the related Participation Agreement), which
date shall also be the date of the initial Lease Supplement (as such term is
defined in the related Participation Agreement).
"Authenticating Agent" has the meaning set forth in Section 3.06
hereof.
"Certificate Account" means the Certificate Account specified in
Section 3.03 hereof.
"Certificateholders" means the Certificateholders of the Class of
Pass Through Certificates designated in Section 2.01 hereof.
"Collateral Account" means each of the Collateral Accounts
established pursuant to the Indentures for each of Federal Express Corporation
Trust Nos. N581FE, N583FE, N584FE, N670FE, N671FE, N672FE, N673FE and N674FE
into which the proceeds of sale of the related Equipment Certificates will be
deposited respectively.
"Cut-Off Date" means the date listed on Schedule II hereto for each
Aircraft.
"Delivery Date" means, for any Equipment Certificates, the Refunding
Date or the Pass Through Closing Date (as such term is defined in the related
Participation Agreement) for such Equipment Certificates.
"Equipment Certificates" means those Equipment Trust Certificates
listed in Schedule I hereto.
"Final Expected Distribution Date" means January 15, 2014.
"Intercreditor Agreement" means the Intercreditor Agreement dated as
of May 1, 1997 among the Pass Through Trustee, the Liquidity Provider (as
defined therein) and the Subordination Agent.
"Issuance Date" means the date defined as the Closing Time in the
Underwriting Agreement.
"Participation Agreements" means those Participation Agreements
listed in Schedule I hereto.
"Pass Through Certificates" means the Pass Through Certificates
designated in Section 2.01 hereof.
"Pass Through Trust," "this Pass Through Trust" and other like words
means the Pass Through Trust designated in Section 2.01 hereof.
"Paying Agent" means the Person specified as such in Section 3.06
hereof.
"Pool Balance" means, for any Pass Through Trust or for the Pass
Through Certificates issued by any Pass Through Trust, as of any date, the
original aggregate face amount of the Pass Through Certificates of such Pass
Through Trust less the aggregate amount of all payments on such Pass Through
Certificates other than payments made in respect of interest or premium or
reimbursement of any costs and expenses in connection therewith. The Pool
Balance for each Pass Through Trust as of any Regular Distribution Date or
Special Distribution Date will be computed after giving effect to the payment
of principal, if any, on the Equipment Certificates or other Trust Property
held in such Pass Through Trust and the distribution thereof being made on
that date.
"Pool Factor" means, for any Pass Through Trust as of any Regular
Distribution Date or Special Distribution Date the quotient (rounded to the
seventh decimal place) computed by dividing (i) the Pool Balance by (ii) the
original aggregate face amount of the Pass Through Certificates of the related
Class. The Pool Factor for each Pass Through Trust as of any Regular
Distribution Date or Special Distribution Date will be computed after giving
effect to the payment of principal, if any, on such Equipment Certificates or
other Trust Property held in such Pass Through Trust and the distribution
thereof being made on that date.
"PTC Event of Default" has the meaning set forth in Section 3.15
hereof.
"Record Date" means any Record Date specified in Section 3.02 hereof.
"Registrar" means the Person specified as such in Section 3.06
hereof.
"Regular Distribution Date" means any Regular Distribution Date
specified in Section 3.01 hereof.
"Special Distribution Date" means, for any Special Payment, the
Special Distribution Date for such Special Payment specified in Section 3.01
hereof.
"Special Payments Account" means the Special Payments Account
specified in Section 3.03 hereof.
"Specified Investments" has the meaning set forth in Schedule II to
the Participation Agreements.
"Subordination Agent" means First Security Bank, National
Association, a national banking association.
"Trust Property" means, for this Pass Through Trust: (i) the
Equipment Certificates held in this Pass Through Trust; (ii) the rights of
this Pass Through Trust under the Intercreditor Agreement (including all
monies receivable in respect of such rights); and (iii) funds from time to
time deposited with the Pass Through Trustee in accounts relating to this
Pass Through Trust.
"Underwriters" means the several Underwriters named in the
Underwriting Agreement.
"Underwriting Agreement" means the Underwriting Agreement dated May
22, 1997 among the Company and Morgan Stanley & Co. Incorporated, First
Chicago Capital Markets, Inc., Goldman, Sachs & Co. and J.P. Morgan & Co.
ARTICLE II
DESIGNATIONS; TRUST FORMATION;
ISSUANCE OF PASS THROUGH CERTIFICATES
SECTION 2.01. Designations; Aggregate Amount. The Pass Through
Trust created hereby shall be designated Federal Express Corporation Pass
Through Trust, 1997-1-C (herein sometimes called this "Pass Through
Trust"). The Pass Through Certificates evidencing Fractional Undivided
Interests in such Pass Through Trust shall be designated as the Federal
Express Corporation 1997-1 Pass Through Certificates, Class C (herein
sometimes called the "1997-1-C Pass Through Certificates"). The 1997-1-C
Pass Through Certificates shall be the only instruments evidencing a
fractional undivided interest in such Pass Through Trust.
Except as provided in Sections 2.08, 2.09 and 2.11 of the Pass
Through Agreement, the aggregate amount of 1997-1-C Pass Through
Certificates that may be authenticated, delivered and outstanding under
this Series Supplement is limited to $129,185,000.
SECTION 2.02. Declaration of Trust; Authorization. Each initial
Certificateholder, by its acceptance of any 1997-1-C Pass Through Certificate
is hereby deemed (1) as grantor, to join in the creation and declaration of
this Pass Through Trust and (2) as beneficiary of such Pass Through Trust, to
authorize and direct the Pass Through Trustee to execute and deliver all
documents to which the Pass Through Trustee is a party that may be necessary
or desirable to consummate the transactions contemplated hereby and to
exercise its rights and perform its duties under the Participation Agreements,
the Indentures, the Pass Through Agreement, the Intercreditor Agreement and
this Series Supplement.
The Pass Through Trustee hereby acknowledges and accepts this grant
of trust and declares that it will hold the Trust Property as Pass Through
Trustee of this Pass Through Trust for the use and benefit of the
Certificateholders.
SECTION 2.03. Issuance of Pass Through Certificates. Subject to the
terms set forth herein, on the Issuance Date (i) the Company shall direct the
Underwriters to execute a wire transfer or intra-bank transfer to the Pass
Through Trustee in the amount of the total proceeds payable by such
Underwriters pursuant to the Underwriting Agreement with respect to the
1997-1-C Pass Through Certificates and (ii) the Pass Through Trustee shall
deliver the 1997-1-C Pass Through Certificates to the Underwriters as provided
in the Underwriting Agreement upon receipt by the Pass Through Trustee of such
proceeds.
SECTION 2.04. Purchase of Equipment Certificates. On the Issuance
Date, the Pass Through Trustee shall purchase, in accordance with Section 2.02
of the Pass Through Agreement, each of the Equipment Certificates upon the
satisfaction or waiver of the conditions for such purchase by the Pass Through
Trustee set forth in the related Participation Agreement.
SECTION 2.05. Representations and Warranties of the Company. All of
the representations and warranties of the Company set forth or incorporated by
reference in Section 1 of the Underwriting Agreement are incorporated by
reference in this Series Supplement as if set forth herein and the Company
represents and warrants that such representations and warranties are true and
correct on the date hereof, except to the extent that such representations and
warranties expressly relate solely to an earlier date or later date (in which
case such representations and warranties were correct on and as of such
earlier date or will be correct on and as of such later date, as the case may
be).
SECTION 2.06. The Intercreditor Agreement. The Pass Through Trustee
is hereby directed to execute and deliver the Intercreditor Agreement on or
prior to the Issuance Date in the form delivered to the Pass Through Trustee
by the Company. The Pass Through Trustee represents and warrants that the
Intercreditor Agreement will be duly executed and delivered by one of its
officers who is duly authorized to execute and deliver such document on its
behalf.
SECTION 2.07. Conditions Precedent. The obligations of the Pass
Through Trustee to participate in the transactions described in Sections 2.03
and 2.04 hereof are subject to (i) receipt by the Pass Through Trustee of a
certificate of the Company to the same effect as the certificate of the
Company delivered to the Underwriters pursuant to Section 5(c) of the
Underwriting Agreement, and (ii) satisfaction or waiver of the conditions for
the purchase by the Underwriters of the Pass Through Certificates set forth
in Section 5 of the Underwriting Agreement, which satisfaction or waiver for
the purposes hereof shall be conclusively demonstrated by the receipt by the
Pass Through Trustee of the total proceeds payable by such Underwriters
pursuant to the Underwriting Agreement with respect to the 1997-1-C Pass
Through Certificates.
SECTION 2.08. Acceptance of Appointment of Pass Through Trustee.
First Security Bank, National Association represents and warrants that it is
qualified to serve as Pass Through Trustee and satisfies the criteria
specified in Section 10.02 of the Pass Through Agreement for eligibility as a
Pass Through Trustee. First Security Bank, National Association hereby agrees
to serve as Pass Through Trustee for the Pass Through Certificates and
acknowledges its appointment as Pass Through Trustee in accordance with the
provisions of, and subject to all of the terms and conditions set forth in,
the Pass Through Agreement and this related Series Supplement upon the
execution and delivery of this Series Supplement.
ARTICLE III
DISTRIBUTION AND RECORD DATES;
CERTIFICATE AND SPECIAL PAYMENT ACCOUNTS;
CONCERNING AUTHENTICATING AGENT, PAYING AGENT AND REGISTRAR AND
THE CERTIFICATEHOLDERS
SECTION 3.01 Distribution Dates. The Regular Distribution Dates
are each January 15 and July 15, commencing on July 15, 1997. The Special
Distribution Date is any Business Day on which a Special Payment is to be
distributed.
SECTION 3.02. Record Dates. The Record Dates for the Regular
Distribution Dates are December 31 and June 30, respectively, and the Record
Date for any Special Distribution Date is the fifteenth day preceding such
Special Distribution Date, in any event, whether or not such date is a
Business Day.
SECTION 3.03. Certificate Account and Special Payments Account. In
accordance with Section 5.01(a) of the Pass Through Agreement and upon receipt
of any Scheduled Payment, the Pass Through Trustee shall immediately deposit
such Scheduled Payment into the Certificate Account, a separate and
non-interest bearing account designated by the Pass Through Trustee to be used
for such purpose. In accordance with Section 5.01(b) of the Pass Through
Agreement and upon receipt of any Special Payment, the Pass Through Trustee
shall immediately deposit such Special Payment into the Special Payments
Account, a separate and, except as provided in Section 5.04 of the Pass
Through Agreement, non-interest bearing account designated by the Pass Through
Trustee to be used for such purpose.
SECTION 3.04. Form of Pass Through Certificates. Subject to Section
2.07 of the Pass Through Agreement, each of the 1997-1-C Pass Through
Certificates will be substantially in the form of Exhibit A hereto. The
1997-1-C Pass Through Certificates will be issued pursuant to a book-entry
system in the form of one or more Registered Global Certificates and subject
to the conditions set forth in the Letter of Representations among the
Company, the Pass Through Trustee and The Depository Trust Company.
SECTION 3.05. Indenture Documents. The related Indenture Documents
are listed in Schedule I hereto.
SECTION 3.06. Appointment of Authenticating Agent; Paying Agent and
Registrar. (a) The Pass Through Trustee may appoint an authenticating agent
(the "Authenticating Agent") with respect to the Pass Through Certificates
which shall be authorized to act on behalf of the Pass Through Trustee to
authenticate the Pass Through Certificates issued upon original issue and upon
exchange or registration of transfer thereof or pursuant to Section 2.09 of
the Pass Through Agreement. Pass Through Certificates so authenticated shall
be entitled to the benefits of the Pass Through Agreement and this Series
Supplement and shall be valid and obligatory for all purposes as if
authenticated by the Pass Through Trustee. Whenever reference is made in the
Pass Through Agreement or this Series Supplement to the authentication and
delivery of Pass Through Certificates by the Pass Through Trustee or the Pass
Through Trustee's certificate of authentication, such reference shall be
deemed to include authentication and delivery on behalf of the Pass Through
Trustee by an Authenticating Agent and a certificate of authentication
executed on behalf of the Pass Through Trustee by an Authenticating Agent.
(b) The Paying Agent, Registrar and Authenticating Agent for the
1997-1-C Pass Through Certificates initially shall be First Security Bank,
National Association. First Security Bank, National Association hereby
represents and warrants to the Company that it is qualified to serve as Paying
Agent, Registrar and Authenticating Agent under the provisions of, and subject
to all of the terms and conditions set forth in, the Pass Through Agreement
and this related Series Supplement.
SECTION 3.07. Predelivery Funding and Delayed Equipment
Certificates. (a) Predelivery Funding. During the period between the date of
issuance of Equipment Certificates by the Owner Trustee in respect of Federal
Express Corporation Trust Nos. N670FE, N671FE, N672FE, N673FE, N674FE, N581FE,
N583FE and N584FE and the Aircraft Delivery Date for the related Aircraft,
such Equipment Certificates will not be secured by such Aircraft or the
related Lease, but will be secured by each Collateral Account. Pursuant to
the related Indenture, the Indenture Trustee on behalf of the related Owner
Trustee will deposit the proceeds from the sale of the related Equipment
Certificates into each Collateral Account.
Sums deposited in each Collateral Account will be invested as set
forth in the Related Indenture.
(b) Delayed Equipment Certificates. If for any reason Equipment
Certificates are not available for purchase on the Pass Through Closing Date
(as such term is defined in the related Participation Agreement) the Pass
Through Trustee shall invest a corresponding amount of the proceeds received
from the Underwriters pursuant to the Underwriting Agreement in Specified
Investments at the risk and for the benefit of the Company until such
Equipment Certificates are available for purchase.
SECTION 3.08. ERISA. Any Person who is acquiring a Pass Through
Certificate will be deemed to represent and warrant that (i) no assets of an
employee benefit plan subject to Title I of The Employee Retirement Income
Security Act of 1974, as amended ("ERISA") or an individual retirement account
or plan subject to Section 4975 of the Code, or any trust established under
any such plan or account, have been used to acquire or hold any of the Pass
Through Certificates or (ii) that one or more administrative or statutory
exemptions from the prohibited transaction rules under Section 406 of ERISA
and Section 4975 of the Code applies to its purchase and holding of a Pass
Through Certificate such that its purchase and holding of a Pass Through
Certificate will not result in a non-exempt prohibited transaction under
Section 406 of ERISA and Section 4975 of the Code.
SECTION 3.09. Intercreditor Agreement. The 1997-1-C Pass Through
Certificates are subject to the Intercreditor Agreement.
SECTION 3.10. Ranking of Equipment Certificates. The Equipment
Certificates will be subject to the ranking and priority as set forth in the
related Indenture Documents.
SECTION 3.11. No Cross-Default or Cross-Collateralization of
Equipment Certificates. As set forth in the related Indenture Documents,
there are no cross-collateralization provisions or cross-default provisions in
respect of the Equipment Certificates.
SECTION 3.12. Ranking of 1997-1-C Pass Through Certificates. The
1997-1-C Pass Through Certificates will be subject to the ranking and priority
as set forth in the Intercreditor Agreement.
SECTION 3.13. [Intentionally Left Blank].
SECTION 3.14. Purchase Rights of Certificateholders. The
Certificateholders will have the purchase rights, if any, upon the occurrence
and during the continuation of a Triggering Event as set forth in the Pass
Through Agreement.
ARTICLE IV
MISCELLANEOUS
SECTION 4.01. Governing Law; Counterpart Form. AS PROVIDED IN
SECTION 13.14 OF THE PASS THROUGH AGREEMENT, THIS SERIES SUPPLEMENT AND EACH
1997-1-C PASS THROUGH CERTIFICATE SHALL IN ALL RESPECTS BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK, INCLUDING ALL
MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE.
This Series Supplement may be executed by the parties hereto in
separate counterparts, each of which when so executed and delivered shall be
an original, but all such counterparts shall together constitute but one and
the same instrument.
SECTION 4.02. Reports by the Company. In addition to the reports
required to be provided by the Company pursuant to Section 4.03 of the Pass
Through Agreement, the Company agrees to furnish to the Pass Through Trustee
from time to time, such other financial information as the Pass Through
Trustee may reasonably request.
SECTION 4.03. Modification and Ratification of Pass Through
Agreement. The Pass Through Agreement is incorporated herein by reference in
its entirety, and shall be deemed to be a part of this Series Supplement as if
set forth in full herein, and is in all respects ratified and confirmed, as
supplemented and modified by this Series Supplement.
SECTION 4.04. Termination. In no event shall this Pass Through
Trust continue beyond the expiration of 21 years after the death of the
last survivor of George Pataki, Governor of New York State, living on the
date of this Series Supplement.
IN WITNESS WHEREOF, the parties have caused their names to be signed
hereto by their respective officers thereunto duly authorized, all on the day
and year first above written.
FEDERAL EXPRESS CORPORATION
By: _________________________________________
Name: Robert D. Henning
Title: Assistant Treasurer and Managing
Director - Structured Finance
FIRST SECURITY BANK, NATIONAL ASSOCIATION,
not in its individual capacity, except as otherwise
expressly provided herein, but solely as Pass Through
Trustee
By: _________________________________________
Name: Greg A. Hawley
Title: Vice President
Exhibit A
to
Series Supplement
FORM OF PASS THROUGH CERTIFICATE
THIS IS A REGISTERED GLOBAL CERTIFICATE REFERRED TO IN
SECTION 2.12 OF THE PASS THROUGH TRUST AGREEMENT.
Unless this pass through certificate is presented by an authorized
representative of The Depository Trust Company, a New York corporation
("DTC"), to the Pass Through Trustee or its agent for registration or
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 THEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an interest
herein.
FEDERAL EXPRESS CORPORATION PASS THROUGH TRUST, 1997-1-C
1997-1 Pass Through Certificate, Class C
CUSIP 31331FAW 1
Final Expected Distribution Date: January 15, 2014
evidencing a fractional undivided interest in a pass through trust.
Certificate No. _______
Applicable interest rate on Equipment Certificates held in
Pass Through Trust, 1997-1-C: 7.65%.
$___________ Fractional Undivided Interest representing _______ of the Pass
Through Trust per $1,000 face amount.
THIS CERTIFIES THAT CEDE & CO., for value received, is the registered
owner of a $_________ (_____________ dollars) Fractional Undivided Interest in
the Federal Express Corporation Pass Through Trust, 1997-1-C (the "Pass
Through Trust") created and declared by First Security Bank, National
Association, as pass through trustee (the "Pass Through Trustee"), pursuant to
the Pass Through Trust Agreement dated as of May 1, 1997 (the "Pass Through
Agreement"), as supplemented by Series Supplement 1997-1-C thereto dated May
__, 1997 (the "Series Supplement") between the Pass Through Trustee and
Federal Express Corporation, a Delaware corporation (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 Pass Through Agreement and the Series
Supplement.
This Pass Through Certificate is one of the duly authorized Pass
Through Certificates designated as "Federal Express Corporation 1997-1 Pass
Through Certificates, Class C." This Pass Through Certificate is issued
under and is subject to the terms, provisions, and conditions of the Pass
Through Agreement, the Series Supplement and the Intercreditor Agreement,
to which the Certificateholder of this Pass Through Certificate by virtue
of the acceptance hereof assents and by which such Certificateholder is
bound. The property of the Pass Through Trust includes (i) the Equipment
Certificates held in such Pass Through Trust, (ii) the rights of such Pass
Through Trust under the Intercreditor Agreement (including all monies
receivable in respect of such rights), and (iii) funds from time to time
deposited with the Pass Through Trustee in accounts relating to such Pass
Through Trust. (the "Trust Property"). Each series of Equipment
Certificates is secured by a security interest in (A) an aircraft leased to
or, in the case of the Airbus A300F4-605R Aircraft, owned by the Company
and, in the case of a leased aircraft, an assignment of the rights of the
Related Owner Trustee with respect to such aircraft, including the right to
receive rent and other amounts payable under the related Lease or Indenture
with respect to such aircraft or (B) a collateral account holding Specified
Investments purchased with the proceeds of the sale of such series of
Equipment Certificates. Each of the Pass Through Certificates represents a
Fractional Undivided Interest in the Pass Through Trust and the Trust
Property, and has no rights, benefits or interests in respect of any other
separate trust established pursuant to the terms of the Pass Through
Agreement for any other class of Pass Through Certificates issued pursuant
thereto.
Subject to and in accordance with the terms of the Pass Through Agreement,
the Series Supplement and the Intercreditor Agreement, from funds then
available to the Pass Through Trustee, there will be distributed on each
January 15 and July 15 (a "Regular Distribution Date"), commencing on July 15,
1997, to the Person in whose name this Pass Through Certificate is registered
at the close of business on the 15th day preceding the applicable Regular
Distribution Date, an amount in respect of the Scheduled Payments on the
Equipment Certificates due on such Regular Distribution Date, equal to the
product of the percentage interest in the Pass Through Trust evidenced by this
Pass Through Certificate and an amount equal to the sum of such Scheduled
Payments.
Subject to and in accordance with the terms of the Pass Through Agreement,
the Series Supplement and the Intercreditor Agreement, if Special Payments on
the Equipment Certificates are received by the Pass Through Trustee, from
funds then available to the Pass Through Trustee, there shall be distributed
on the applicable Special Distribution Date, to the Person in whose name this
Pass Through Certificate is registered at the close of business on the 15th
day preceding such Special Distribution Date, an amount in respect of such
Special Payments on the Equipment Certificates, equal to the product of the
percentage interest in the Pass Through Trust evidenced by this Pass Through
Certificate and an amount equal to the sum of such Special Payments so
received.
If a 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 Distribution Date and no interest shall accrue during the
intervening period. The Special Distribution Date shall be any Business Day
on which a Special Payment is to be distributed.
Distributions on this Pass Through Certificate will be made by the Pass
Through Trustee to the Person entitled thereto, without the presentation or
surrender of this Pass Through Certificate or the making of any notation
hereon. Except as otherwise provided in the Pass Through Agreement and
notwithstanding the above, the final distribution on this Pass Through
Certificate will be made after notice is mailed by the Pass Through Trustee of
the pendency of such distribution and only upon presentation and surrender of
this Pass Through Certificate at the office or agency of the Pass Through
Trustee specified in such notice.
Any Person acquiring this Pass Through Certificate will be deemed to
represent and warrant that (i) no assets of an employee benefit plan subject
to Title I of The Employee Retirement Income Security Act of 1974, as amended
("ERISA") or an individual retirement account or plan subject to Section 4975
of the Code, or any trust established under any such plan or account, have
been used to acquire or hold any of the Pass Through Certificates or (ii) that
one or more administrative or statutory exemptions from the prohibited
transaction rules under Section 406 of ERISA and Section 4975 of the Code
applies to its purchase and holding of this Pass Through Certificate such that
its purchase and holding of this Pass Through Certificate will not result in a
non-exempt prohibited transaction under Section 406 of ERISA and Section 4975
of the Code.
This Pass Through Certificate shall be governed by and construed in
accordance with the laws of the State of New York.
Reference is hereby made to the further provisions of this Pass Through
Certificate set forth on the reverse hereof, which further provisions shall
for all purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the
Pass Through Trustee, by manual signature, this Pass Through Certificate shall
not be entitled to any benefit under the Pass Through Trust or be valid for
any purpose.
IN WITNESS WHEREOF, the Pass Through Trustee has caused this Pass Through
Certificate to be duly executed.
FEDERAL EXPRESS CORPORATION
PASS THROUGH TRUST, 1997-1-C
FIRST SECURITY BANK, NATIONAL ASSOCIATION,
not in its individual capacity, except as otherwise
expressly provided herein, but solely as Pass Through
Trustee
By: ________________________________
Authorized Signatory
[FORM OF THE PASS THROUGH TRUSTEE'S CERTIFICATE OF AUTHENTICATION]
Dated: May ___, 1997
This is one of the Pass Through Certificates referred to in the
within-mentioned Pass Through Agreement and the Series Supplement.
FIRST SECURITY BANK, NATIONAL ASSOCIATION,
not in its individual capacity, except as otherwise
expressly provided herein, but solely as Pass Through
Trustee
By: ________________________________
Authorized Signatory
[Reverse of Pass Through Certificate]
The Pass Through Certificates do not represent a direct obligation of, or
an obligation guaranteed by, or an interest in, the Company or the Pass
Through Trustee or any affiliate thereof. The Pass Through Certificates are
limited in right of payment, all as more specifically set forth on the face
hereof and in the Pass Through Agreement, the Intercreditor Agreement and the
Series Supplement. Subject to the Intercreditor Agreement, all payments or
distributions made to Certificateholders under the Pass Through Agreement
shall be made only from the Trust Property and only to the extent that the
Pass Through Trustee shall have sufficient income or proceeds from the Trust
Property to make such payments in accordance with the terms of the Pass
Through Agreement and the Series Supplement. Each Certificateholder of this
Pass Through 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 Pass
Through Agreement, the Intercreditor Agreement and the Series Supplement.
In connection with withholding taxes, under certain circumstances the Pass
Through Trustee may retain certain amounts otherwise distributable to a
Certificateholder. The purchase by any Certificateholder of any Pass Through
Certificate constitutes the consent of such Certificateholder to such
retention in accordance with the terms of the Pass Through Agreement.
This Pass Through Certificate does not purport to summarize the Pass
Through Agreement, the Intercreditor Agreement and the Series Supplement
and reference is made to the Pass Through Agreement, the Intercreditor
Agreement and the Series Supplement for information with respect to the
interests, rights, benefits, obligations, proceeds and duties evidenced
hereby. A copy of the Pass Through Agreement, the Intercreditor Agreement
and the Series Supplement may be examined by any Certificateholder upon
request during normal business hours at the principal office of the Pass
Through Trustee, and at such other places designated by the Pass Through
Trustee.
As of the date of issuance of this Pass Through Certificate, and assuming
that no prepayment or default in respect of payment on the Equipment
Certificates shall occur, the aggregate scheduled repayments of principal on
the Equipment Certificates for the Pass Through Trust and the resulting Pool
Factors for the Pass Through Trust after taking into account each such
repayment are set forth below:
Class C Trust
Equipment Certificates
Regular Scheduled Payments Expected
Distribution Date of Principal Pool Factor
- ----------------------- ------------------------ -------------
May 28, 1997 0 1.00000000
July 15, 1997 0 1.00000000
January 15, 1998 $ 814,093 0.9936982
July 15, 1998 0 0.9936982
January 15, 1999 3,352,943 0.9677437
July 15, 1999 0 0.9677437
January 15, 2000 3,434,834 0.9411552
July 15, 2000 0 0.9411552
January 15, 2001 3,891,533 0.9110314
July 15, 2001 0 0.9110314
January 15, 2002 4,375,413 0.8771621
July 15, 2002 0 0.8771621
January 15, 2003 6,726,455 0.8250937
July 15, 2003 0 0.8250937
January 15, 2004 8,699,834 0.7577497
July 15, 2004 0 0.7577497
January 15, 2005 8,888,210 0.6889475
July 15, 2005 0 0.6889475
January 15, 2006 13,320,067 0.5858391
July 15, 2006 2,326,313 0.5678314
January 15, 2007 23,315,227 0.3873521
July 15, 2007 0 0.3873521
January 15, 2008 8,611,545 0.3206915
July 15, 2008 0 0.3206915
January 15, 2009 10,751,443 0.2374663
July 15, 2009 0 0.2374663
January 15, 2010 7,456,185 0.1797492
July 15, 2010 0 0.1797492
January 15, 2011 928,493 0.1725619
July 15, 2011 0 0.1725619
January 15, 2012 0 0.1725619
July 15, 2012 0 0.1725619
January 15, 2013 123,763 0.1716039
July 15, 2013 0 0.1716039
January 15, 2014 22,168,649 0.0000000
Each Certificateholder of this Pass Through Certificate by its acceptance
hereof, acknowledges that the terms of the Participation Agreement, the Lease
and the Indenture as they relate to two of the aircraft may differ from the
terms set forth or incorporated by reference in this Pass Through Certificate.
The Pass Through Agreement, the Intercreditor Agreement and the Series
Supplement permit, with certain exceptions provided therein, the amendment
thereof and the modification of the rights and obligations of the Company
and the rights of the Certificateholders under the Pass Through Trust at
any time by the Company and the Pass Through Trustee with the consent of
the Majority In Interest of Certificateholders in the Pass Through Trust.
Any such consent by the Certificateholder of this Pass Through Certificate
shall be conclusive and binding on such Certificateholder and upon all
future Certificateholders of this Pass Through Certificate and of any Pass
Through Certificate issued upon the transfer hereof or in exchange hereof
or in lieu hereof whether or not notation of such consent is made upon this
Pass Through Certificate. The Pass Through Agreement, the Intercreditor
Agreement and the Series Supplement also permit the amendment thereof, in
certain limited circumstances, without the consent of the
Certificateholders of any of the Pass Through Certificates.
As provided in the Pass Through Agreement and the Series Supplement and
subject to certain limitations set forth therein, the transfer of this Pass
Through Certificate is registrable in the Register upon surrender of this
Pass Through Certificate for registration of transfer to the Pass Through
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 Pass Through 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 Pass Through
Certificates of authorized denominations evidencing the same aggregate
Fractional Undivided Interest in the Pass Through Trust will be issued to
the designated transferee or transferees.
The Pass Through Certificates are issuable only as registered Pass Through
Certificates without coupons in minimum denominations of $1,000 fractional
undivided interests and integral multiples thereof. As provided in the Pass
Through Agreement and the Series Supplement and subject to certain limitations
set forth therein, the Pass Through Certificates are exchangeable for new Pass
Through Certificates of authorized denominations evidencing the same aggregate
Fractional Undivided Interest in the Pass Through 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 Pass Through Trustee may require payment of a sum sufficient
to cover any tax or governmental charge payable in connection therewith.
The Pass Through Trustee, the Registrar, and any agent of the Pass Through
Trustee or the Registrar may treat the person in whose name this Pass Through
Certificate is registered as the owner hereof for all purposes, and neither
the Pass Through Trustee, the Registrar, nor any such agent shall be affected
by any notice to the contrary.
The obligations and responsibilities created by the Pass Through Agreement
and the Series Supplement and the Pass Through Trust created thereby shall
terminate upon the distribution to Certificateholders of all amounts required
to be distributed to them pursuant to the Pass Through Agreement, the
Intercreditor Agreement and the Series Supplement and the disposition of all
property held as part of the Trust Property.
Schedule I
to
Series Supplement
Federal Express Corporation
Pass Through Trust, 1997-1-C
Class C
Equipment Certificates;
Related Indenture Documents
1. Equipment Certificates (Federal Express Corporation Trust No. N581FE):
Interest Rate: 7.65%
Maturity: January 15, 2009
Principal Amount: $13,008,000
Related Indenture Documents:
Trust Indenture and Security Agreement (Federal Express Corporation Trust
No. N581FE) dated as of May 1, 1997, between Wilmington Trust Company, not
in its individual capacity, except as otherwise provided therein, but
solely as Owner Trustee, and First Security Bank, National Association, not
in its individual capacity, except as otherwise provided therein, but
solely as Indenture Trustee;
Participation Agreement (Federal Express Corporation Trust No. N581FE)
dated as of May 1, 1997, among Federal Express Corporation, as Lessee,
AmSouth Leasing, Ltd. and BTM Funding Corporation, as Owner Participants,
Wilmington Trust Company, not in its individual capacity, except as
otherwise provided therein, but solely as Owner Trustee, First Security
Bank, National Association, not in its individual capacity, except as
otherwise provided therein, but solely as Indenture Trustee, First Security
Bank, National Association, not in its individual capacity, except as
otherwise provided therein, but solely as Pass Through Trustee, and First
Security Bank, National Association, not in its individual capacity, except
as otherwise provided therein, but solely as Subordination Agent;
Trust Agreement (Federal Express Corporation Trust No. N581FE) dated as of
May 1, 1997, among AmSouth Leasing, Ltd. and BTM Funding Corporation, as
Owner Participants, and Wilmington Trust Company;
Lease Agreement (Federal Express Corporation Trust No. N581FE) dated as of
May 1, 1997, between Wilmington Trust Company, not in its individual
capacity, except as otherwise provided therein, but solely as Owner Trustee
and Lessor, and Federal Express Corporation, as Lessee; and
Owner Participant Guaranty (Federal Express Corporation Trust No. N581FE)
dated May 28, 1997, by AmSouth Bank of Alabama, as the Owner Participant
Guarantor in favor of the Lessee, the Owner Trustee, the Indenture Trustee
and the Pass Through Trustee.
Owner Participant Guaranty (Federal Express Corporation Trust No. N581FE)
dated May 28, 1997, by BTM Capital Corporation, as the Owner Participant
Guarantor in favor of the Lessee, the Owner Trustee, the Indenture Trustee
and the Pass Through Trustee.
2. Equipment Certificates (Federal Express Corporation Trust No. N583FE):
Interest Rate: 7.65%
Maturity: January 15, 2009
Principal Amount: $13,988,000
Related Indenture Documents:
Trust Indenture and Security Agreement (Federal Express Corporation Trust
No. N583FE) dated as of May 1, 1997, between State Street Bank and Trust
Company of Connecticut, National Association, not in its individual
capacity, except as otherwise provided therein, but solely as Owner
Trustee, and First Security Bank, National Association, not in its
individual capacity, except as otherwise provided therein, but solely as
Indenture Trustee;
Participation Agreement (Federal Express Corporation Trust No. N583FE)
dated as of May 1, 1997, among Federal Express Corporation, as Lessee and
Initial Owner Participant, State Street Bank and Trust Company of
Connecticut, National Association, not in its individual capacity, except
as otherwise provided therein, but solely as Owner Trustee, First Security
Bank, National Association, not in its individual capacity, except as
otherwise provided therein, but solely as Indenture Trustee, First Security
Bank, National Association, not in its individual capacity, except as
otherwise provided therein, but solely as Pass Through Trustee, and First
Security Bank, National Association, not in its individual capacity, except
as otherwise provided therein, but solely as Subordination Agent;
Trust Agreement (Federal Express Corporation Trust No. N583FE) dated as of
May 1, 1997, between Federal Express Corporation, as Initial Owner
Participant, and State Street Bank and Trust Company of Connecticut,
National Association; and
Lease Agreement (Federal Express Corporation Trust No. N583FE) dated as of
May 1, 1997, between State Street Bank and Trust Company of Connecticut,
National Association, not in its individual capacity, except as otherwise
provided therein, but solely as Owner Trustee and Lessor, and Federal
Express Corporation, as Lessee.
3. Equipment Certificates (Federal Express Corporation Trust No. N584FE):
Interest Rate: 7.65%
Maturity: January 15, 2009
Principal Amount: $10,611,000
Related Indenture Documents:
Trust Indenture and Security Agreement (Federal Express Corporation Trust
No. N584FE) dated as of May 1, 1997, between State Street Bank and Trust
Company of Connecticut, National Association, not in its individual
capacity, except as otherwise provided therein, but solely as Owner
Trustee, and First Security Bank, National Association, not in its
individual capacity, except as otherwise provided therein, but solely as
Indenture Trustee;
Participation Agreement (Federal Express Corporation Trust No. N584FE)
dated as of May 1, 1997, among Federal Express Corporation, as Lessee and
Initial Owner Participant, State Street Bank and Trust Company of
Connecticut, National Association, not in its individual capacity, except
as otherwise provided therein, but solely as Owner Trustee, First Security
Bank, National Association, not in its individual capacity, except as
otherwise provided therein, but solely as Indenture Trustee, First Security
Bank, National Association, not in its individual capacity, except as
otherwise provided therein, but solely as Pass Through Trustee, and First
Security Bank, National Association, not in its individual capacity, except
as otherwise provided therein, but solely as Subordination Agent;
Trust Agreement (Federal Express Corporation Trust No. N584FE) dated as of
May 1, 1997, between Federal Express Corporation, as Initial Owner
Participant, and State Street Bank and Trust Company of Connecticut,
National Association; and
Lease Agreement (Federal Express Corporation Trust No. N584FE) dated as of
May 1, 1997, between State Street Bank and Trust Company of Connecticut,
National Association, not in its individual capacity, except as otherwise
provided therein, but solely as Owner Trustee and Lessor, and Federal
Express Corporation, as Lessee.
4. Equipment Certificates (Federal Express Corporation Trust No. N587FE):
Interest Rate: 7.65%
Maturity: January 15, 2007
Principal Amount: $10,446,000
Related Indenture Documents:
Trust Indenture and Security Agreement (Federal Express Corporation Trust
No. N587FE) dated as of December 1, 1996, as amended and restated as of May
1, 1997, between Wilmington Trust Company, not in its individual capacity,
except as otherwise provided therein, but solely as Owner Trustee, and
First Security Bank, National Association, not in its individual capacity,
except as otherwise provided therein, but solely as Indenture Trustee;
Trust Indenture and Security Agreement Supplement No. 1 (Federal Express
Corporation Trust No. N587FE) dated December 13, 1996, between Wilmington
Trust Company, not in its individual capacity, except as otherwise provided
therein, but solely as Owner Trustee, and First Security Bank, National
Association, not in its individual capacity, except as otherwise provided
therein, but solely as Indenture Trustee;
Participation Agreement (Federal Express Corporation Trust No. N587FE)
dated as of December 1, 1996, as amended and restated as of May 1, 1997,
among Federal Express Corporation, as Lessee, CMCA Lease, Inc. and Norwest
Bank Minnesota, National Association, as Owner Participants, Wilmington
Trust Company, not in its individual capacity, except as otherwise provided
therein, but solely as Owner Trustee, State Street Bank and Trust Company,
not in its individual capacity, except as otherwise provided therein, but
solely as Original Indenture Trustee, First Security Bank, National
Association, not in its individual capacity, except as otherwise provided
therein, but solely as Indenture Trustee, First Security Bank, National
Association, not in its individual capacity, except as otherwise provided
therein, but solely as Pass Through Trustee, First Security Bank, National
Association, not in its individual capacity, except as otherwise provided
therein, but solely as Subordination Agent, and Morgan Guaranty Trust
Company of New York, as Original Loan Participant;
Trust Agreement (Federal Express Corporation Trust No. N587FE) dated as of
December 1, 1996, as amended and restated as of May 1, 1997, among CMCA
Lease, Inc. and Norwest Bank Minnesota, National Association, as Owner
Participants, and Wilmington Trust Company;
Lease Agreement (Federal Express Corporation Trust No. N587FE) dated as of
December 1, 1996, as amended and restated as of May 1, 1997, between
Wilmington Trust Company, not in its individual capacity, except as
otherwise provided therein, but solely as Owner Trustee and Lessor, and
Federal Express Corporation, as Lessee;
Lease Supplement No. 1 (Federal Express Corporation Trust No. N587FE) dated
December 13, 1996, between Wilmington Trust Company, not in its individual
capacity, except as otherwise provided therein, but solely as Owner Trustee
and Lessor, and Federal Express Corporation, as Lessee; and
Owner Participant Guaranty (Federal Express Corporation Trust No. N587FE)
dated December 13, 1996, as amended and restated as of May 28, 1997, by
Comerica Bank, as the Owner Participant Guarantor in favor of the Lessee,
the Owner Trustee, the Indenture Trustee and the Pass Through Trustee.
5. Equipment Certificates (Federal Express Corporation Trust No. N670FE):
Interest Rate: 7.65%
Maturity: January 15, 2014
Principal Amount: $16,533,000
Related Indenture Documents:
Trust Indenture and Security Agreement (Federal Express Corporation Trust
No. N670FE) dated as of May 1, 1997, between State Street Bank and Trust
Company of Connecticut, National Association, not in its individual
capacity, except as otherwise provided therein, but solely as Owner
Trustee, and First Security Bank, National Association, not in its
individual capacity, except as otherwise provided therein, but solely as
Indenture Trustee;
Participation Agreement (Federal Express Corporation Trust No. N670FE)
dated as of May 1, 1997, among Federal Express Corporation, as Lessee, PMCC
Leasing Corporation, as Owner Participant, State Street Bank and Trust
Company of Connecticut, National Association, not in its individual
capacity, except as otherwise provided therein, but solely as Owner
Trustee, First Security Bank, National Association, not in its individual
capacity, except as otherwise provided therein, but solely as Indenture
Trustee, First Security Bank, National Association, not in its individual
capacity, except as otherwise provided therein, but solely as Pass Through
Trustee, and First Security Bank, National Association, not in its
individual capacity, except as otherwise provided therein, but solely as
Subordination Agent;
Trust Agreement (Federal Express Corporation Trust No. N670FE) dated as of
May 1, 1997, between PMCC Leasing Corporation, as Owner Participant, and
State Street Bank and Trust Company of Connecticut, National Association;
Lease Agreement (Federal Express Corporation Trust No. N670FE) dated as of
May 1, 1997, between State Street Bank and Trust Company of Connecticut,
National Association, not in its individual capacity, except as otherwise
provided therein, but solely as Owner Trustee and Lessor, and Federal
Express Corporation, as Lessee; and
Owner Participant Guaranty (Federal Express Corporation Trust No. N670FE)
dated May 28, 1997, by Philip Morris Capital Corporation, as the Owner
Participant Guarantor in favor of the Lessee, the Owner Trustee, the
Indenture Trustee and the Pass Through Trustee.
6. Equipment Certificates (Federal Express Corporation Trust No. N671FE):
Interest Rate: 7.65%
Maturity: January 15, 2014
Principal Amount: $16,458,000
Related Indenture Documents:
Trust Indenture and Security Agreement (Federal Express Corporation Trust
No. N671FE) dated as of May 1, 1997, between State Street Bank and Trust
Company of Connecticut, National Association, not in its individual
capacity, except as otherwise provided therein, but solely as Owner
Trustee, and First Security Bank, National Association, not in its
individual capacity, except as otherwise provided therein, but solely as
Indenture Trustee;
Participation Agreement (Federal Express Corporation Trust No. N671FE)
dated as of May 1, 1997, among Federal Express Corporation, as Lessee, PMCC
Leasing Corporation, as Owner Participant, State Street Bank and Trust
Company of Connecticut, National Association, not in its individual
capacity, except as otherwise provided therein, but solely as Owner
Trustee, First Security Bank, National Association, not in its individual
capacity, except as otherwise provided therein, but solely as Indenture
Trustee, First Security Bank, National Association, not in its individual
capacity, except as otherwise provided therein, but solely as Pass Through
Trustee, and First Security Bank, National Association, not in its
individual capacity, except as otherwise provided therein, but solely as
Subordination Agent;
Trust Agreement (Federal Express Corporation Trust No. N671FE) dated as of
May 1, 1997, between PMCC Leasing Corporation, as Owner Participant, and
State Street Bank and Trust Company of Connecticut, National Association;
Lease Agreement (Federal Express Corporation Trust No. N671FE) dated as of
May 1, 1997, between State Street Bank and Trust Company of Connecticut,
National Association, not in its individual capacity, except as otherwise
provided therein, but solely as Owner Trustee and Lessor, and Federal
Express Corporation, as Lessee; and
Owner Participant Guaranty (Federal Express Corporation Trust No. N671FE)
dated May 28, 1997, by Philip Morris Capital Corporation, as the Owner
Participant Guarantor in favor of the Lessee, the Owner Trustee, the
Indenture Trustee and the Pass Through Trustee.
7. Equipment Certificates (Federal Express Corporation Trust No. N672FE):
Interest Rate: 7.65%
Maturity: January 15, 2014
Principal Amount: $16,095,000
Related Indenture Documents:
Trust Indenture and Security Agreement (Federal Express Corporation Trust
No. N672FE) dated as of May 1, 1997, between State Street Bank and Trust
Company of Connecticut, National Association, not in its individual
capacity, except as otherwise provided therein, but solely as Owner
Trustee, and First Security Bank, National Association, not in its
individual capacity, except as otherwise provided therein, but solely as
Indenture Trustee;
Participation Agreement (Federal Express Corporation Trust No. N672FE)
dated as of May 1, 1997, among Federal Express Corporation, as Lessee, PMCC
Leasing Corporation, as Owner Participant, State Street Bank and Trust
Company of Connecticut, National Association, not in its individual
capacity, except as otherwise provided therein, but solely as Owner
Trustee, First Security Bank, National Association, not in its individual
capacity, except as otherwise provided therein, but solely as Indenture
Trustee, First Security Bank, National Association, not in its individual
capacity, except as otherwise provided therein, but solely as Pass Through
Trustee, and First Security Bank, National Association, not in its
individual capacity, except as otherwise provided therein, but solely as
Subordination Agent;
Trust Agreement (Federal Express Corporation Trust No. N672FE) dated as of
May 1, 1997, between PMCC Leasing Corporation, as Owner Participant, and
State Street Bank and Trust Company of Connecticut, National Association;
Lease Agreement (Federal Express Corporation Trust No. N672FE) dated as of
May 1, 1997, between State Street Bank and Trust Company of Connecticut,
National Association, not in its individual capacity, except as otherwise
provided therein, but solely as Owner Trustee and Lessor, and Federal
Express Corporation, as Lessee; and
Owner Participant Guaranty (Federal Express Corporation Trust No. N672FE)
dated May 28, 1997, by Philip Morris Capital Corporation, as the Owner
Participant Guarantor in favor of the Lessee, the Owner Trustee, the
Indenture Trustee and the Pass Through Trustee.
8. Equipment Certificates (Federal Express Corporation Trust No. N673FE):
Interest Rate: 7.65%
Maturity: January 15, 2014
Principal Amount: $16,023,000
Related Indenture Documents:
Trust Indenture and Security Agreement (Federal Express Corporation Trust
No. N673FE) dated as of May 1, 1997, between State Street Bank and Trust
Company of Connecticut, National Association, not in its individual
capacity, except as otherwise provided therein, but solely as Owner
Trustee, and First Security Bank, National Association, not in its
individual capacity, except as otherwise provided therein, but solely as
Indenture Trustee;
Participation Agreement (Federal Express Corporation Trust No. N673FE)
dated as of May 1, 1997, among Federal Express Corporation, as Lessee, PMCC
Leasing Corporation, as Owner Participant, State Street Bank and Trust
Company of Connecticut, National Association, not in its individual
capacity, except as otherwise provided therein, but solely as Owner
Trustee, First Security Bank, National Association, not in its individual
capacity, except as otherwise provided therein, but solely as Indenture
Trustee, First Security Bank, National Association, not in its individual
capacity, except as otherwise provided therein, but solely as Pass Through
Trustee, and First Security Bank, National Association, not in its
individual capacity, except as otherwise provided therein, but solely as
Subordination Agent;
Trust Agreement (Federal Express Corporation Trust No. N673FE) dated as of
May 1, 1997, between PMCC Leasing Corporation, as Owner Participant, and
State Street Bank and Trust Company of Connecticut, National Association;
Lease Agreement (Federal Express Corporation Trust No. N673FE) dated as of
May 1, 1997, between State Street Bank and Trust Company of Connecticut,
National Association, not in its individual capacity, except as otherwise
provided therein, but solely as Owner Trustee and Lessor, and Federal
Express Corporation, as Lessee; and
Owner Participant Guaranty (Federal Express Corporation Trust No. N673FE)
dated May 28, 1997, by Philip Morris Capital Corporation, as the Owner
Participant Guarantor in favor of the Lessee, the Owner Trustee, the
Indenture Trustee and the Pass Through Trustee.
9. Equipment Certificates (Federal Express Corporation Trust No. N674FE):
Interest Rate: 7.65%
Maturity: January 15, 2014
Principal Amount: $16,023,000
Related Indenture Documents:
Trust Indenture and Security Agreement (Federal Express Corporation Trust
No. N674FE) dated as of May 1, 1997, between State Street Bank and Trust
Company of Connecticut, National Association, not in its individual
capacity, except as otherwise provided therein, but solely as Owner
Trustee, and First Security Bank, National Association, not in its
individual capacity, except as otherwise provided therein, but solely as
Indenture Trustee;
Participation Agreement (Federal Express Corporation Trust No. N674FE)
dated as of May 1, 1997, among Federal Express Corporation, as Lessee, PMCC
Leasing Corporation, as Owner Participant, State Street Bank and Trust
Company of Connecticut, National Association, not in its individual
capacity, except as otherwise provided therein, but solely as Owner
Trustee, First Security Bank, National Association, not in its individual
capacity, except as otherwise provided therein, but solely as Indenture
Trustee, First Security Bank, National Association, not in its individual
capacity, except as otherwise provided therein, but solely as Pass Through
Trustee, and First Security Bank, National Association, not in its
individual capacity, except as otherwise provided therein, but solely as
Subordination Agent;
Trust Agreement (Federal Express Corporation Trust No. N674FE) dated as of
May 1, 1997, between PMCC Leasing Corporation, as Owner Participant, and
State Street Bank and Trust Company of Connecticut, National Association;
Lease Agreement (Federal Express Corporation Trust No. N674FE) dated as of
May 1, 1997, between State Street Bank and Trust Company of Connecticut,
National Association, not in its individual capacity, except as otherwise
provided therein, but solely as Owner Trustee and Lessor, and Federal
Express Corporation, as Lessee; and
Owner Participant Guaranty (Federal Express Corporation Trust No. N674FE)
dated May 28, 1997, by Philip Morris Capital Corporation, as the Owner
Participant Guarantor in favor of the Lessee, the Owner Trustee, the
Indenture Trustee and the Pass Through Trustee.
Schedule II
to
Series Supplement
Cut-Off Date for each of the Aircraft
Federal Express
Corporation Manufacturer's
Trust No. Serial Number Cut-Off Date
------------------- ---------------- -------------------
N670FE 777 September 1, 1997
N671FE 778 September 18, 1997
N672FE 779 November 17, 1997
N673FE 780 December 10, 1997
N674FE 781 December 22, 1997
N581FE 48419 September 4, 1997
N583FE 48421 December 15, 1997
N584FE 48436 April 15, 1998
Intercreditor Agreement
Dated as of
May 1, 1997
AMONG
FIRST SECURITY BANK, NATIONAL ASSOCIATION
not in its individual capacity
but solely as Pass Through Trustee under the
Federal Express Corporation Pass Through Trust 1997-1-A,
Federal Express Corporation Pass Through Trust 1997-1-B
and
Federal Express Corporation Pass Through Trust 1997-1-C
KREDIETBANK N.V., NEW YORK BRANCH
as Class A Liquidity Provider and
Class B Liquidity Provider
AND
FIRST SECURITY BANK, NATIONAL ASSOCIATION
not in its individual capacity except
as expressly set forth herein but
solely as Subordination Agent and trustee hereunder
TABLE OF CONTENTS
Page
----
ARTICLE I
DEFINITIONS
SECTION 1.1 Definitions............................................ 2
ARTICLE II
TRUST ACCOUNTS; CONTROLLING PARTY
SECTION 2.1 Agreement to Terms of Subordination; Payments from
Monies Received Only................................... 20
SECTION 2.2 Trust Accounts......................................... 21
SECTION 2.3 Deposits to the Collection Account and Special Payments
Account................................................ 22
SECTION 2.4 Distributions of Special Payments...................... 22
SECTION 2.5 Designated Representatives............................. 25
SECTION 2.6 Controlling Party...................................... 25
ARTICLE III
RECEIPT, DISTRIBUTION AND APPLICATION OF
AMOUNTS RECEIVED
SECTION 3.1 Written Notice of Distribution......................... 27
SECTION 3.2 Distribution of Amounts on Deposit in the Collection
Account................................................ 29
SECTION 3.3 Distribution of Amounts on Deposit Following a
Triggering Event....................................... 30
SECTION 3.4 Other Payments......................................... 32
SECTION 3.5 Payments to the Pass Through Trustee and the Liquidity
Providers.............................................. 32
SECTION 3.6 Liquidity Facilities................................... 32
ARTICLE IV
EXERCISE OF REMEDIES
SECTION 4.1 Directions from the Controlling Party.................. 38
SECTION 4.2 Remedies Cumulative.................................... 39
SECTION 4.3 Discontinuance of Proceedings.......................... 40
SECTION 4.4 Right of Certificateholders and Liquidity Providers to
Receive Payments Not to Be Impaired.................... 40
SECTION 4.5 Undertaking for Costs.................................. 40
ARTICLE V
DUTIES OF THE SUBORDINATION AGENT;
AGREEMENTS OF THE PASS THROUGH TRUSTEE, ETC.
SECTION 5.1 Notice of Indenture Event of Default or Triggering
Event.................................................. 40
SECTION 5.2 Indemnification........................................ 41
SECTION 5.3 No Duties Except as Specified in Intercreditor
Agreement.............................................. 41
SECTION 5.4 Notice from the Liquidity Providers and the Pass
Through Trustee........................................ 42
ARTICLE VI
THE SUBORDINATION AGENT
SECTION 6.1 Authorization, Acceptance of Trusts and Duties......... 42
SECTION 6.2 Absence of Duties...................................... 42
SECTION 6.3 No Representations or Warranties as to Documents....... 42
SECTION 6.4 No Segregation of Monies; No Interest.................. 43
SECTION 6.5 Reliance; Agents; Advice of Counsel.................... 43
SECTION 6.6 Capacity in Which Acting............................... 44
SECTION 6.7 Compensation........................................... 44
SECTION 6.8 May Become Certificateholder........................... 44
SECTION 6.9 Subordination Agent Required; Eligibility.............. 44
SECTION 6.10 Money to Be Held in Trust.............................. 44
ARTICLE VII
INDEMNIFICATION OF SUBORDINATION AGENT
SECTION 7.1 Scope of Indemnification............................... 45
ARTICLE VIII
SUCCESSOR SUBORDINATION AGENT
SECTION 8.1 Replacement of Subordination Agent; Appointment of
Successor.............................................. 45
ARTICLE IX
SUPPLEMENTS AND AMENDMENTS
SECTION 9.1 Amendments, Waivers, Etc............................... 47
SECTION 9.2 Subordination Agent Protected.......................... 48
SECTION 9.3 Effect of Supplemental Agreements...................... 48
SECTION 9.4 Notice to Rating Agencies.............................. 48
ARTICLE X
MISCELLANEOUS
SECTION 10.1 Termination of Intercreditor Agreement................. 48
SECTION 10.2 Intercreditor Agreement for Benefit of the Pass Through
Trustees, Liquidity Providers and Subordination Agent.. 49
SECTION 10.3 Notices................................................ 49
SECTION 10.4 Severability........................................... 50
SECTION 10.5 No Oral Modifications or Continuing Waivers............ 50
SECTION 10.6 Successors and Assigns................................. 50
SECTION 10.7 Headings............................................... 50
SECTION 10.8 Counterpart Form....................................... 50
SECTION 10.9 Subordination.......................................... 50
SECTION 10.10 GOVERNING LAW.......................................... 52
SECTION 10.11 Submission to Jurisdiction; Waiver of Jury Trial;
Waiver of Immunity..................................... 52
Schedule 1 Indentures
Schedule 2 Participation Agreements
INTERCREDITOR AGREEMENT
INTERCREDITOR AGREEMENT dated as of May 1, 1997, among FIRST
SECURITY BANK, NATIONAL ASSOCIATION, a national banking association ("Pass
Through Trustee"), not in its individual capacity but solely as Trustee of
each Pass Through Trust (each as defined below), KREDIETBANK N.V., acting
through its New York Branch ("Liquidity Provider"), as Class A Liquidity
Provider and as Class B Liquidity Provider, and FIRST SECURITY BANK, NATIONAL
ASSOCIATION, not in its individual capacity except as expressly set forth
herein, but solely as Subordination Agent and trustee hereunder (in such
capacity, together with any successor appointed pursuant to Article VIII
hereof, the "Subordination Agent").
WHEREAS, all capitalized terms used herein shall have the
respective meanings referred to in Article I hereof;
WHEREAS, pursuant to each Indenture, the related Owner Trustee
proposes to issue on a nonrecourse basis three series of Equipment Trust
Certificates to finance, or refinance the current indebtedness of such Owner
Trustee originally incurred to finance, the purchase of the Aircraft referred
to in such Indenture, which has been or will be leased to Federal Express
Corporation pursuant to the related Lease;
WHEREAS, pursuant to the Participation Agreements, each Pass
Through Trust will acquire those Equipment Trust Certificates having an
interest rate equal to the interest rate applicable to the Pass Through
Certificates to be issued by such Pass Through Trust;
WHEREAS, pursuant to the Pass Through Agreement, each Pass Through
Trust created thereby proposes to issue a single class of Pass Through
Certificates (a "Class") bearing the interest rate and having the final
distribution date described in the relevant series supplement on the terms and
subject to the conditions set forth therein;
WHEREAS, pursuant to the Underwriting Agreement, the Underwriters
propose to purchase the Pass Through Certificates issued by each Pass Through
Trust in the aggregate face amount set forth opposite the name of such Pass
Through Trust on Schedule I thereto on the terms and subject to the conditions
set forth therein;
WHEREAS, each Liquidity Provider proposes to enter into a
revolving credit agreement (each, a "Liquidity Facility") with the
Subordination Agent, as agent for the Pass Through Trustee of each Pass
Through Trust, for the benefit of the Certificateholders of both the Class A
Pass Through Trust and the Class B Pass Through Trust (but not the Class C
Pass Through Trust); and
WHEREAS, it is a condition precedent to the obligations of the
Underwriters under the Underwriting Agreement that the Subordination Agent,
the Pass Through Trustee and the Liquidity Providers agree to the terms of
subordination set forth in this Agreement in respect of each Class of Pass
Through Certificates, and the Subordination Agent, the Pass Through Trustee
and the Liquidity Providers, by entering into this Agreement, hereby
acknowledge and agree to such terms of subordination and the other provisions
of this Agreement.
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 1.1 Definitions. For all purposes of this Agreement,
except as otherwise expressly provided or unless the context otherwise
requires:
(1) the terms used herein that are defined in this Article have
the meanings assigned to them in this Article, and include the plural as
well as the singular;
(2) all references in this Agreement to designated "Articles",
"Sections" and other subdivisions are to the designated Articles,
Sections and other subdivisions of this Agreement;
(3) the words "herein", "hereof" and "hereunder" and other words
of similar import refer to this Agreement as a whole and not to any
particular Article, Section or other subdivision; and
(4) the term "including" shall mean "including without
limitation".
"Acceleration" means, with respect to the amounts payable in
respect of the Equipment Trust Certificates issued under any Indenture,
the declaration or deemed declaration of such amounts to be immediately
due and payable. "Accelerate", "Accelerated" and "Accelerating" have
meanings correlative to the foregoing.
"Adjusted Expected Distributions" means with respect to the Pass
Through Certificates of any Class on any Current Distribution Date the
sum of (x) the amount of accrued and unpaid interest on such Pass
Through Certificates plus (y) the greater of:
(A) the difference between (x) the Pool Balance of such
Pass Through Certificates as of the immediately preceding
Distribution Date and (y) the Pool Balance of such Pass Through
Certificates as of the Current Distribution Date calculated on the
basis that (i) the principal of the Non-Performing Equipment Trust
Certificates held in such Pass Through Trust has been paid in full
and such payments have been distributed to the holders of such
Pass Through Certificates; (ii) the principal of the Performing
Equipment Trust Certificates has been paid when due (but without
giving effect to any acceleration of Performing Equipment Trust
Certificates) and has been distributed to the holders of such Pass
Through Certificates; and (iii) the principal of any Equipment
Trust Certificates formerly held in such Pass Through Trust which
have been sold pursuant to the terms hereof have been paid in full
and such payments have been distributed to the holders of such
Pass Through Certificates; and
(B) the amount, if any, by which (i) the Pool Balance of
such Class of Pass Through Certificates as of the immediately
preceding Distribution Date exceeds (ii) the Aggregate LTV
Collateral Amount for such Class of Pass Through Certificates for
the Current Distribution Date;
provided that, until the date of the initial LTV Appraisals, clause (B)
above shall not be applicable.
"Affiliate" means, with respect to any Person, any other Person
directly or indirectly controlling, controlled by or under common
control with such Person. For the purposes of this definition,
"control" means the power, directly or indirectly, to direct or cause
the direction of the management and policies of such Person whether
through the ownership of voting securities or by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative
to the foregoing.
"Aggregate LTV Collateral Amount" means, for any Class of Pass
Through Certificates for any Distribution Date, the sum of the
applicable LTV Collateral Amounts for each Aircraft minus the Pool
Balance for each Class of Pass Through Certificates, if any, senior to
such Class after giving effect to any distribution of principal on such
Distribution Date on such senior Class or Classes.
"Aircraft" means, with respect to any Indenture, the "Aircraft"
referred to therein.
"Appraised Current Market Value" of any Aircraft means the lower
of the average and the median of the most recent three LTV Appraisals of
such Aircraft.
"Appraisers" means Aircraft Information Services, Inc., Simat,
Helliesen & Eichner, Inc. and Morten Beyer and Associates, Inc.
"Available Amount" means, with respect to any Liquidity Facility
on any drawing date, an amount equal to (a) the Stated Amount of such
Liquidity Facility, less (b) the amount of each Interest Drawing honored
by the Liquidity Provider under such Liquidity Facility on or prior to
such date which has not been reimbursed or reinstated as of such date;
provided that, following a Downgrade Drawing or a Final Drawing under
such Liquidity Facility, the Available Amount of such Liquidity Facility
shall be zero.
"Business Day" means any day other than a Saturday or Sunday or a
day on which commercial banks are required or authorized to close in
Memphis, Tennessee, New York, New York, or the city and state in which
the Pass Through Trustee, the Subordination Agent or any Indenture
Trustee maintains its Corporate Trust Office or receives and disburses
funds.
"Cash Account" means the Class A Cash Account, the Class B Cash
Account or the Class C Cash Account, as applicable.
"Certificateholder" means any holder of one or more Pass Through
Certificates.
"Class" has the meaning assigned to such term in the preliminary
statements to this Agreement.
"Class A Cash Account" means an Eligible Deposit Account in the
name of the Subordination Agent maintained at an Eligible Institution,
which shall be the Subordination Agent if it shall so qualify, into
which all amounts drawn under the Class A Liquidity Facility pursuant to
Section 3.6(c) or 3.6(i) shall be deposited.
"Class A Liquidity Facility" means, initially, the irrevocable
revolving credit agreement dated as of May 1, 1997, between the
Subordination Agent, as agent of the Pass Through Trustee of the Class A
Pass Through Trust, and the Class A Liquidity Provider, and, from and
after the replacement of such Agreement pursuant hereto, the Replacement
Liquidity Facility therefor, if any, in each case as amended,
supplemented or otherwise modified from time to time in accordance with
its terms.
"Class A Liquidity Provider" means Kredietbank N.V., acting
through its New York Branch, together with any Replacement Liquidity
Provider which has issued a Replacement Liquidity Facility to replace
the Class A Liquidity Facility pursuant to Section 3.6(e).
"Class A Pass Through Certificateholder" means, at any time, any
holder of one or more Class A Pass Through Certificates.
"Class A Pass Through Certificates" means the certificates issued
by the Class A Pass Through Trust, substantially in the form of Exhibit
A to the Class A Supplement, and authenticated by the Pass Through
Trustee of the Class A Pass Through Trust, representing fractional
undivided interests in the Class A Pass Through Trust, and any
certificates issued in exchange therefor or replacement thereof pursuant
to the terms of the Class A Supplement.
"Class A Pass Through Trust" means the Federal Express Corporation
1997-l-A Pass Through Trust created and administered pursuant to the
Class A Supplement.
"Class A Supplement" means the Pass Through Trust Agreement, dated
as of May 1, 1997, between Federal Express Corporation and the Pass
Through Trustee, as supplemented by the Series Supplement 1997-1-A
between Federal Express Corporation and the Pass Through Trustee of the
Class A Pass Through Trust, governing the creation and administration
of the Class A Pass Through Trust and the issuance of the Class A
Pass Through Certificates, as the same may be amended, supplemented
or otherwise modified from time to time in accordance with its terms.
"Class B Cash Account" means an Eligible Deposit Account in the
name of the Subordination Agent maintained at an Eligible Institution,
which shall be the Subordination Agent if it shall so qualify, into
which all amounts drawn under the Class B Liquidity Facility pursuant to
Section 3.6(c) or 3.6(i) shall be deposited.
"Class B Liquidity Facility" means, initially, the irrevocable
revolving credit agreement dated as of May 1, 1997, between the
Subordination Agent, as agent of the Pass Through Trustee of the Class B
Pass Through Trust, and the Class B Liquidity Provider, and, from and
after the replacement of such Agreement pursuant hereto, the Replacement
Liquidity Facility therefor, if any, in each case as amended,
supplemented or otherwise modified from time to time in accordance with
its terms.
"Class B Liquidity Provider" means Kredietbank N.V., acting
through its New York Branch, together with any Replacement Liquidity
Provider which has issued a Replacement Liquidity Facility to replace
the Class B Liquidity Facility pursuant to Section 3.6(e).
"Class B Pass Through Certificateholder" means, at any time, any
holder of one or more Class B Pass Through Certificates.
"Class B Pass Through Certificates" means the certificates issued
by the Class B Pass Through Trust, substantially in the form of Exhibit
A to the Class B Supplement, and authenticated by the Pass Through
Trustee of the Class B Pass Through Trust, representing fractional
undivided interests in the Class B Pass Through Trust, and any
certificates issued in exchange therefor or replacement thereof pursuant
to the terms of the Class B Supplement.
"Class B Pass Through Trust" means the Federal Express Corporation
1997-1-B Pass Through Trust created and administered pursuant to the
Class B Supplement.
"Class B Supplement" means the Pass Through Trust Agreement,
dated as of May 1, 1997, between Federal Express Corporation and the
Pass Through Trustee, as supplemented by the Series Supplement
1997-1-B between Federal Express Corporation and the Pass Through
Trustee of the Class B Pass Through Trust, governing the creation and
administration of the Class B Pass Through Trust and the issuance of
the Class B Pass Through Certificates, as the same may be amended,
supplemented or otherwise modified from time to time in accordance
with its terms.
"Class C Pass Through Certificateholder" means, at any time, any
holder of one or more Class C Pass Through Certificates.
"Class C Pass Through Certificates" means the certificates issued
by the Class C Pass Through Trust, substantially in the form of Exhibit
A to the Class C Supplement, and authenticated by the Pass Through
Trustee of the Class C Pass Through Trust, representing fractional
undivided interests in the Class C Pass Through Trust, and any
certificates issued in exchange therefor or in replacement thereof
pursuant to the terms of the Class C Supplement.
"Class C Pass Through Trust" means the Federal Express Corporation
1997-l-C Pass Through Trust created and administered pursuant to the
Class C Supplement.
"Class C Supplement" means the Pass Through Trust Agreement,
dated as of May 1, 1997, between Federal Express Corporation and the
Pass Through Trustee as supplemented by the Series Supplement 1997-1-C
between Federal Express Corporation and the Pass Through Trustee of
the Class C Pass Through Trust, governing the creation and
administration of the Class C Pass Through Trust and the issuance of
the Class C Pass Through Certificates, as the same may be amended,
supplemented or otherwise modified from time to time in accordance
with its terms.
"Closing Date" means May 28, 1997.
"Collection Account" means the Eligible Deposit Account
established by the Subordination Agent pursuant to Section 2.2 which the
Subordination Agent shall make deposits in and withdrawals from in
accordance with this Agreement.
"Controlling Party" means the Person entitled to act as such
pursuant to the terms of Section 2.6.
"Corporate Trust Office" means, with respect to any Pass Through
Trustee, the Subordination Agent or any Indenture Trustee, the office of
such Person in the city at which, at any particular time, its corporate
trust business shall be principally administered.
"Current Distribution Date" means a Distribution Date specified as
a reference date for calculating the Adjusted Expected Distributions or
Expected Distributions with respect to the Pass Through Certificates of
any Pass Through Trust as of such Distribution Date.
"Designated Representatives" means the Trustee Representatives and
the LP Representatives identified under Section 2.5.
"Distribution Date" means a Regular Distribution Date or a Special
Distribution Date.
"Dollars" or "$" means United States dollars.
"Downgrade Drawing" has the meaning assigned to such term in
Section 3.6(c).
"Downgraded Facility" has the meaning assigned to such term in
Section 3.6(c).
"Drawing" means an Interest Drawing, a Final Drawing or a Downgrade
Drawing, as the case may be.
"Eligible Deposit Account" means either (a) a segregated account
with an Eligible Institution or (b) a segregated trust account with the
corporate trust department of a depository institution organized under
the laws of the United States of America or any one of the states
thereof or the District of Columbia (or any U.S. branch of a foreign
bank), having corporate trust powers and acting as trustee for funds
deposited in such account, so long as any of the securities of such
depository institution has a long-term unsecured debt rating from each
Rating Agency of at least A-3 or its equivalent. An Eligible Deposit
Account may be maintained with a Liquidity Provider so long as such
Liquidity Provider is an Eligible Institution; provided that such
Liquidity Provider shall have waived all rights of setoff and
counterclaim with respect to such account; and provided further that no
Cash Account may be maintained with a Liquidity Provider at any time
Federal Express Corporation holds any participation in the related
Liquidity Facility unless written confirmation shall have been received
from each Rating Agency prior to such time to the effect that such
maintenance of the Cash Account with the Liquidity Provider will not
result in a withdrawal or downgrading of the ratings of the Pass Through
Certificates.
"Eligible Institution" means, subject to the last sentence of
Section 2.2(c), (a) the corporate trust department of the Subordination
Agent or any Pass Through Trustee, as applicable, or (b) a depository
institution organized under the laws of the United States of America or
any one of the states thereof or the District of Columbia (or any U.S.
branch of a foreign bank), which has a long-term unsecured debt rating
from each Rating Agency of at least A-3 or its equivalent; provided that
a Liquidity Provider shall not qualify as an Eligible Institution at any
time Federal Express Corporation holds any participation in the related
Liquidity Facility unless written confirmation shall have been received
from each Rating Agency to the effect that such Liquidity Provider's
status as an Eligible Institution will not result in a withdrawal or
downgrading of the ratings of the Pass Through Certificates.
"Equipment Trust Certificates" means, at any time, the Series A
Equipment Trust Certificates, the Series B Equipment Trust Certificates
and the Series C Equipment Trust Certificates, collectively, and in each
case, any Equipment Trust Certificates issued in exchange therefor or
replacement thereof pursuant to the terms of the Indentures.
"Expected Distributions" means, with respect to the Pass Through
Certificates of any Pass Through Trust on any Current Distribution Date,
the sum of (x) accrued and unpaid interest on such Certificates and (y)
the difference between (A) the Pool Balance of such Certificates as of
the immediately preceding Distribution Date and (B) the Pool Balance of
such Certificates as of the Current Distribution Date, calculated on the
basis that (1) the principal of the Equipment Trust Certificates held
in such Pass Through Trust has been paid when due (whether at stated
maturity or upon redemption, prepayment, purchase or acceleration or
otherwise) and such payments have been distributed to the holders of
such Certificates and (2) the principal of any Equipment Trust
Certificates formerly held in such Pass Through Trust that have been
sold pursuant to this Agreement has been paid in full and such payments
distributed to the Certificateholders. For purposes of calculating
Expected Distributions, any premium paid on the Equipment Trust
Certificates held in any Pass Through Trust which has not been
distributed to the Certificateholders of such Pass Through Trust (other
than such premium or a portion thereof applied to the payment of
interest on the Pass Through Certificates of such Pass Through Trust or
the reduction of the Pool Balance of such Pass Through Trust) shall be
added to the amount of such Expected Distributions.
"Federal Express Corporation" means Federal Express Corporation, a
Delaware corporation, and its successors and assigns.
"Federal Express Corporation Bankruptcy Event" means the
occurrence and continuation of any of the following:
(a) an order for relief shall be entered in respect of
Federal Express Corporation by a court having jurisdiction in the
premises in an involuntary case under the federal bankruptcy laws
as now or hereafter in effect; or Federal Express Corporation
shall consent to the appointment of a custodian, receiver, trustee
or liquidator of itself or of a substantial part of its property;
or Federal Express Corporation is not paying, or shall admit in
writing its inability to pay, its debts generally as they come due
or shall make a general assignment for the benefit of creditors;
or Federal Express Corporation shall file, or the Board of
Directors of Federal Express Corporation shall authorize the
filing of, or grant one or more persons authority (at their
discretion) to make a filing for, a voluntary petition in
bankruptcy or a voluntary petition or an answer seeking
reorganization in a proceeding under any bankruptcy laws (as now
or hereafter in effect) or an answer admitting the material
allegations of a petition filed against Federal Express
Corporation in any such proceeding; or Federal Express Corporation
shall file, or the Board of Directors of Federal Express
Corporation shall authorize Federal Express Corporation to, or
grant one or more persons authority (at their discretion) to, seek
relief by voluntary petition, answer or consent, under the
provisions of any other or future bankruptcy or other similar law
providing for the reorganization or winding-up of corporations, or
providing for an agreement, composition, extension or adjustment
with its creditors; or
(b) an order, judgment or decree shall be entered by any
court of competent jurisdiction appointing, without the consent of
Federal Express Corporation, a custodian, receiver, trustee, or
liquidator of Federal Express Corporation or of any substantial
part of its property, or sequestering any substantial part of the
property of Federal Express Corporation, or granting any other
relief in respect of Federal Express Corporation under the federal
bankruptcy laws or other insolvency laws, and any such order,
judgment or decree of appointment or sequestration shall remain in
force undismissed or unvacated for a period of 60 days after the
date of its entry; or
(c) a petition against Federal Express Corporation in a
proceeding under the federal bankruptcy law or other insolvency
laws (as now or hereafter in effect) shall be filed and shall not
be withdrawn or dismissed within 60 days, or under the provisions
of any law providing for reorganization or winding-up of
corporations which may apply to Federal Express Corporation, any
court of competent jurisdiction shall assume jurisdiction, custody
or control of Federal Express Corporation or of any substantial
part of its property and such jurisdiction, custody or control
shall remain in force unrelinquished or unterminated for 60 days.
"Final Distributions" means, with respect to the Pass Through
Certificates of any Pass Through Trust on any Distribution Date, the sum
of (a) the aggregate amount of all accrued and unpaid interest on such
Pass Through Certificates and (b) the Pool Balance of such Pass Through
Certificates as of the immediately preceding Distribution Date. For
purposes of calculating Final Distributions, any premium paid on the
Equipment Trust Certificates held in any Pass Through Trust which has
not been distributed to the Certificateholders of such Pass Through
Trust shall be added to the amount of such Final Distributions.
"Final Drawing" means, in respect of a Liquidity Facility, a
borrowing or drawing of all available and undrawn amounts under such
Liquidity Facility in accordance with the provisions thereof other than
a Downgrade Drawing.
"Final Legal Distribution Date" means, July 15, 2019 for the Class
A Pass Through Certificates, July 15, 2019 for the Class B Pass Through
Certificates and January 15, 2014 for the Class C Pass Through
Certificates.
"Indenture" means each Trust Indenture and Security Agreement
listed on Schedule I hereto, as the same may be amended, supplemented or
otherwise modified from time to time in accordance with its terms.
"Indenture Event of Default" means, with respect to any Indenture,
any Event of Default (as such term is defined in such Indenture)
thereunder.
"Indenture Trustee" means, with respect to any Indenture, First
Security Bank, National Association, together with any other indenture
trustee appointed pursuant thereto.
"Interest Drawing" has the meaning assigned to such term in
Section 3.6(a).
"Investment Earnings" means investment earnings on funds on
deposit in the Trust Accounts net of losses and investment expenses of
the Subordination Agent in making such investments.
"Lease" means, with respect to any Indenture, the "Lease" referred
to therein.
"Lien" means any mortgage, pledge, lien, charge, claim,
disposition of title, encumbrance, lease, sublease, sub-sublease or
security interest of any kind, including, without limitation, any
thereof arising under any conditional sales or other title retention
agreement.
"Liquidity Event of Default", with respect to any Liquidity
Facility, has the meaning assigned to such term in such Liquidity
Facility.
"Liquidity Expenses" means all Liquidity Obligations other than
(i) the principal amount of any Drawings under the Liquidity Facilities
and (ii) any interest accrued on any Liquidity Obligations.
"Liquidity Facility" means, at any time, the Class A Liquidity
Facility or the Class B Liquidity Facility, as applicable.
"Liquidity Obligations" means all principal, interest, fees and
other amounts owing to the Liquidity Providers under the Liquidity
Facilities and Articles 8, 9 and 10 of the Participation Agreements.
"Liquidity Provider" means, at any time, the Class A Liquidity
Provider or the Class B Liquidity Provider, as applicable.
"LP Incumbency Certificate" has the meaning assigned to such term
in Section 2.5(b).
"LP Representatives" has the meaning assigned to such term in
Section 2.5(b).
"LTV Appraisal" means a current fair market appraisal (which may
be a "desktop" appraisal) performed by any Appraiser or any other
nationally recognized appraiser on the basis of an arm's-length
transaction between an informed and willing purchaser under no
compulsion to buy and an informed and willing seller under no compulsion
to sell and both having knowledge of all relevant facts.
"LTV Collateral Amount" of any Aircraft for any Class of Pass
Through Certificates on any Distribution Date means the lesser of (i)
the LTV Ratio for such Class of Pass Through Certificates multiplied by
the Appraised Current Market Value of such Aircraft (or with respect to
any such Aircraft which has suffered an Event of Loss under the related
Lease, the amount of the insurance proceeds paid or payable to the
Indenture Trustee in respect thereof) and (ii) the outstanding principal
amount of the Equipment Trust Certificates secured by such Aircraft
after giving effect to any principal payments of such Equipment Trust
Certificates on or before such Distribution Date.
"LTV Ratio" means for the Class A Pass Through Certificates 39.7%,
for the Class B Pass Through Certificates 54.5% and for the Class C Pass
Through Certificates 71.0%.
"Minimum Sale Price" means, with respect to any Aircraft or the
Equipment Trust Certificates issued in respect of such Aircraft, at any
time, the lesser of (a) 75% of the Appraised Current Market Value of
such Aircraft based upon the most recent LTV Appraisal and (b) the
aggregate outstanding principal amount of such Equipment Trust
Certificates, plus accrued and unpaid interest thereon.
"Moody's" means Moody's Investors Service, Inc.
"Non-Controlling Party" means, at any time, the Pass Through
Trustee or the Liquidity Provider which is not the Controlling Party at
such time.
"Non-Extension Drawing" has the meaning provided in Section
3.6(d).
"Non-Performing Equipment Trust Certificates" means Equipment
Trust Certificates other than Performing Equipment Trust
Certificates.
"Officer's Certificate" of any Person means a certification signed
by a Responsible Officer of such Person.
"Operative Agreements" means this Agreement, the Participation
Agreements, the Pass Through Agreement, and any other document which
is an "Operative Agreement" under any Participation Agreement.
"Outstanding" means, when used with respect to each Class of Pass
Through Certificates, as of the date of determination, all Pass Through
Certificates of such Class theretofore authenticated and delivered under
the related Pass Through Agreement, except:
(i) Pass Through Certificates of such Class theretofore
cancelled by the Registrar (as defined in such Pass Through
Agreement) or delivered to the Pass Through Trustee thereunder or
such Registrar for cancellation;
(ii) Pass Through Certificates of such Class for which
money in the full amount required to make the final distribution
with respect to such Pass Through Certificates pursuant to Section
11.01 of such Pass Through Agreement has been theretofore
deposited with the Pass Through Trustee in trust for the holders
of such Pass Through Certificates as provided in Section 4.01 of
such Pass Through Agreement pending distribution of such money to
such Certificateholders pursuant to such final distribution
payment; and
(iii) Pass Through Certificates of such Class in exchange
for or in lieu of which other Pass Through Certificates have been
authenticated and delivered pursuant to such Pass Through
Agreement;
provided, however, that in determining whether the holders of the
requisite Outstanding amount of such Pass Through Certificates have
given any request, demand, authorization, direction, notice, consent or
waiver hereunder, any Pass Through Certificates owned by Federal Express
Corporation or any of its Affiliates shall be disregarded and deemed not
to be Outstanding, except that, in determining whether the Pass Through
Trustee shall be protected in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only Pass Through
Certificates that the Pass Through Trustee knows to be so owned shall be
so disregarded. Pass Through Certificates so owned that have been
pledged in good faith may be regarded as Outstanding if the pledgee
establishes to the satisfaction of the Pass Through Trustee the
pledgee's right so to act with respect to such Pass Through Certificates
and that the pledgee is not Federal Express Corporation or any of its
Affiliates.
"Overdue Scheduled Payment" means any Scheduled Payment which is
not in fact received by the Subordination Agent within five days of the
Scheduled Payment Date relating thereto.
"Owner Trustee" means, with respect to any Indenture, the Owner
Trustee (as defined therein) not in its individual capacity but solely
as trustee under the related owner trust agreement, together with any
successor trustee appointed pursuant to such owner trust agreement.
"Participation Agreements" means each of the Participation
Agreements listed on Schedule 2 hereto, as the same may be amended,
supplemented or otherwise modified from time to time in accordance with
its terms.
"Pass Through Agreement" means the Pass Through Trust Agreement,
dated as of May 1, 1997, between Federal Express Corporation and the
Pass Through Trustee, as supplemented by the Series Supplement 1997-1-A,
the Series Supplement 1997-1-B or the Series Supplement 1997-1-C.
"Pass Through Certificate" means a Class A Pass Through
Certificate, a Class B Pass Through Certificate or a Class C Pass
Through Certificate, as applicable.
"Pass Through Trust" means any of the Class A Pass Through Trust,
the Class B Pass Through Trust or the Class C Pass Through Trust.
"Pass Through Trustee" means, for the Class A, Class B and Class C
Pass Through Trusts, First Security Bank, National Association, not in
its individual capacity except as expressly set forth in the Class A,
Class B and Class C Supplements, respectively, but solely as trustee
under such supplements, together with any successor trustee appointed
pursuant thereto.
"Performing Certificate Deficiency" means any time that less than
65% of the then aggregate outstanding principal amount of all Equipment
Trust Certificates are Performing Equipment Trust Certificates.
"Performing Equipment Trust Certificates" means Equipment Trust
Certificates issued pursuant to an Indenture with respect to which no
payment default has occurred and is continuing (without giving effect to
any acceleration thereof); provided that in the event of a bankruptcy
proceeding involving Federal Express Corporation under Title 11 of the
United States Code (the "Bankruptcy Code"), (i) any payment default
existing during 60-day period under Section 1110(a)(1)(A) of the
Bankruptcy Code (or such longer period as may apply under Section
1110(b) of the Bankruptcy Code) (the "Section 1110 Period") shall not be
taken into consideration, unless during such period the trustee in such
proceeding or Federal Express Corporation refuses to assume or agree to
perform its obligations under the Lease related to such Equipment Trust
Certificates and (ii) any payment default occurring after the date of
the order of relief in such proceeding shall not be taken into
consideration if such payment default is cured under Section
1110(a)(1)(B) of the Bankruptcy Code before the later of 30 days after
the date of such default or the expiration of the Section 1110 Period.
"Person" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, trustee,
unincorporated organization or government or any agency or political
subdivision thereof.
"Pool Balance" means, with respect to each Pass Through Trust or
the Pass Through Certificates issued by any Pass Through Trust, as of
any date, (i) the original aggregate face amount of the Pass Through
Certificates of such Pass Through Trust less (ii) the aggregate amount
of all payments made in respect of the Pass Through Certificates of such
Trust other than payments made in respect of interest or premium thereon
or reimbursement of any costs and expenses in connection therewith. The
Pool Balance for each Pass Through Trust or the Pass Through
Certificates issued by any Pass Through Trust as of any Distribution
Date shall be computed after giving effect to any payment of principal,
if any, on the Equipment Trust Certificates or other Trust Property held
in such Pass Through Trust and the distribution thereof to be made on
such date.
"Proceeding" means any suit in equity, action at law or other
judicial or administrative proceeding.
"PTC Event of Default" means, with respect to each Pass Through
Agreement, the failure to pay within 10 Business Days of the due date
thereof: (i) the outstanding Pool Balance of the applicable Class of
Pass Through Certificates on the Final Legal Distribution Date for such
Class or (ii) interest due on such Pass Through Certificates on any
Distribution Date (unless, in the case of the Class A or Class B
Certificates, the Subordination Agent shall have made an Interest
Drawing with respect thereto in an amount sufficient to pay such
interest and shall have distributed such amount to the holders of the
Pass Through Certificates entitled thereto).
"Rating Agencies" means, collectively, at any time, each
nationally recognized rating agency which shall have been requested to
rate the Pass Through Certificates and which shall then be rating the
Pass Through Certificates. Initially, the Rating Agencies shall consist
of Moody's and Standard & Poor's.
"Ratings Confirmation" means, with respect to any action proposed
to be taken, a written confirmation from each of the Rating Agencies
that such action would not result in (i) a reduction of the rating for
any Class of Pass Through Certificates below the then current rating for
such Class of Pass Through Certificates or (ii) a withdrawal or
suspension of the rating of any Class of Pass Through Certificates.
"Regular Distribution Dates" means each January 15 and July 15,
commencing on July 15, 1997; provided, however, that, if any such day
shall not be a Business Day, the related distribution shall be made on
the next succeeding Business Day without additional interest.
"Replacement Liquidity Facility" means, for the Class A Pass
Through Trust or the Class B Pass Through Trust, an irrevocable
revolving credit agreement in substantially the form of the initial
Liquidity Facility for such Pass Through Trust, including reinstatement
provisions or in such other form (which may include a letter of credit)
as shall permit the Rating Agencies to confirm in writing their
respective ratings then in effect for the Pass Through Certificates
(before downgrading of such ratings, if any, as a result of the
downgrading of the Liquidity Provider), in a face amount equal to the
Required Amount for such Liquidity Facility and issued by a Replacement
Liquidity Provider, provided that, if a form of Liquidity Facility that
is not substantially in the form of the replaced Liquidity Facility is
to be used, Federal Express Corporation shall have received a
satisfactory opinion of tax counsel satisfactory to Federal Express
Corporation with respect to such form of Replacement Liquidity Facility
(and a copy of such opinion shall be furnished to the Subordination
Agent).
"Replacement Liquidity Provider" means a Person having unsecured
debt ratings by each Rating Agency which are equal to or higher than the
Threshold Rating.
"Required Amount" means, with respect to each Liquidity Facility
and each Cash Account related thereto, for any day, the sum of the
aggregate amount of interest, calculated at the rate per annum equal to
the Stated Interest Rate for the related Class of Pass Through
Certificates, that would be payable on such Class of Pass Through
Certificates on each of the three successive Regular Distribution Dates
immediately following such day or, if such day is a Regular Distribution
Date, on such day and the succeeding two Regular Distribution Dates, in
each case calculated on the basis of the Pool Balance of such Class of
Pass Through Certificates on such date and without regard to expected
future payments of principal on such Class of Pass Through Certificates.
"Responsible Officer" means (i) with respect to the Subordination
Agent and the Pass Through Trustee, any officer in the corporate trust
administration department of the Subordination Agent or the Pass Through
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 such person's knowledge of and familiarity with a particular subject
and (ii) with respect to each Liquidity Provider, any authorized officer
of such Liquidity Provider.
"Scheduled Payment" means, with respect to (x) any Equipment Trust
Certificates, (i) any payment of principal and interest on such
Equipment Trust Certificates (other than an Overdue Scheduled Payment)
due from the obligor thereon or (ii) any payment of interest on the
corresponding Class of Pass Through Certificates with funds drawn under
any Liquidity Facility, which payment represents the installment of
principal at the stated maturity of such installment of principal on
such Equipment Trust Certificates, the payment of regularly scheduled
interest accrued on the unpaid principal amount of such Equipment Trust
Certificates, or both; provided that any payment of principal of,
premium, if any, or interest resulting from the redemption or purchase
of any Equipment Trust Certificates shall not constitute a Scheduled
Payment and (y) the Pass Through Certificates of any Class shall be
deemed to be comprised of interest and principal components, with the
interest component equaling interest accrued at the Stated Interest Rate
for such Class of Pass Through Certificates from (i) the later of (1)
the date of the issuance thereof and (2) the most recent but preceding
Regular Distribution Date to (ii) the Regular Distribution Date on which
such Scheduled Payment is being made, such interest to be considered
payable in arrears on such Regular Distribution Date and to be
calculated and allocated in the same manner as interest on the Equipment
Trust Certificates.
"Scheduled Payment Date" means, with respect to any Scheduled
Payment, the date on which such Scheduled Payment is scheduled to be
made.
"Series A Equipment Trust Certificates" means the 7.50% Series A
Equipment Trust Certificates issued pursuant to each Indenture by the
related Owner Trustee and authenticated by the Indenture Trustee
thereunder, and any such Equipment Trust Certificates issued in exchange
therefor or replacement thereof pursuant to the terms of such Indenture.
"Series B Equipment Trust Certificates" means the 7.52% Series B
Equipment Trust Certificates issued pursuant to each Indenture by the
related Owner Trustee and authenticated by the Indenture Trustee
thereunder, and any such Equipment Trust Certificates issued in exchange
therefor or replacement thereof pursuant to the terms of such Indenture.
"Series C Equipment Trust Certificates" means the 7.65% Series C
Equipment Trust Certificates issued pursuant to each Indenture by the
related Owner Trustee and authenticated by the Indenture Trustee
thereunder, and any such Equipment Trust Certificates issued in exchange
therefor or replacement thereof pursuant to the terms of such Indenture.
"Special Distribution Date" means, with respect to any Special
Payment, the date chosen by the Subordination Agent pursuant to Section
2.4(a) for the distribution of such Special Payment in accordance with
this Agreement; provided, however, that, if any such day shall not be a
Business Day, the related distribution shall be made on the next
succeeding Business Day without additional interest.
"Special Payment" means any payment (other than a Scheduled
Payment) in respect of, or any proceeds of, any Equipment Trust
Certificates or the Trust Indenture Estate (as defined in each
Indenture), including Overdue Scheduled Payments, payments in respect of
the redemption or repurchase of any Equipment Trust Certificates and
payments in respect of the sale of any Equipment Trust Certificates to
the related Owner Trustee, Owner Participant or any other Person.
"Special Payments Account" means the Eligible Deposit Account
created pursuant to Section 2.2 as a sub-account in the Collection
Account.
"Specified Investments" means (a) direct obligations of the United
States of America or obligations fully guaranteed by the United States
of America; (b) commercial paper rated A-1/P-1 by Standard & Poor's
Ratings Group and Moody's Investor Service, Inc., respectively, or, if
such ratings are unavailable, rated by any nationally recognized rating
organization in the United States equal to the highest rating assigned
by such rating organization; (c) investments in negotiable certificates
of deposit, time deposits, banker's acceptances, commercial paper or
other direct obligations of, or obligations guaranteed by, commercial
banks organized under the laws of the United States or of any political
subdivision thereof (or any U.S. branch of a foreign bank) with issuer
ratings of at least B/C by Thomson Bankwatch, having maturities no later
than 90 days following the date of such investment; (d) overnight
federal funds transactions with members of the Federal Reserve Systems
arranged by federal funds brokers; and (e) overnight repurchase
agreements with respect to securities described in clause (a) above
entered into with an office of a bank or trust company which is located
in the United States of America of any bank or trust company which is
organized under the laws of the United States or any state thereof and
has capital surplus and undivided profits aggregating at least $500
million.
"Standard & Poor's" means Standard & Poor's Rating Group, a
division of McGraw-Hill Inc.
"Stated Amount" with respect to any Liquidity Facility, means the
Commitment (as defined in such Liquidity Facility) of the applicable
Liquidity Provider thereunder.
"Stated Interest Rate" means (i) with respect to the Class A Pass
Through Certificates, 7.50% per annum, (ii) with respect to the Class B
Pass Through Certificates, 7.52% per annum and (iii) with respect to the
Class C Pass Through Certificates, 7.65%.
"Subordination Agent" means First Security Bank, National
Association, not in its individual capacity except as expressly set
forth herein, but solely as agent and trustee as provided for in this
Agreement, together with any successor appointed pursuant to Article
VIII of this Agreement.
"Tax" and "Taxes" mean any and all taxes, fees, levies, duties,
tariffs, imposts, and other charges of any kind (together with any and
all interest, penalties, loss, damage, liability, expense, additions to
tax and additional amounts or costs incurred or imposed with respect
thereto) imposed or otherwise assessed by the United States or by any
state, local or foreign government (or any subdivision or agency
thereof) or other taxing authority, including, without limitation:
taxes or other charges on or with respect to income, franchises,
windfall or other profits, gross receipts, property, sales, use, capital
stock, payroll, employment, social security, workers' compensation,
unemployment compensation, or net worth and similar charges; taxes or
other charges in the nature of excise, withholding, ad valorem, stamp,
transfer, value added, taxes on goods and services, gains taxes, license,
registration and documentation fees, customs duties, tariffs, and
similar charges.
"Threshold Rating" means the short-term unsecured debt rating of
P-1 by Moody's and A-1 by Standard & Poor's; provided that, in the event
a person's short-term unsecured debt is not rated by either Moody's or
Standard & Poor's, the long-term unsecured debt rating by Moody's and
Standard & Poor's at least equal to the initial rating by each of
Moody's and Standard & Poor's on the Class A Pass Through Certificates.
"Triggering Event" means (x) the occurrence of an Indenture Event
of Default under all of the Indentures resulting in a PTC Event of
Default with respect to the most senior Class of Pass Through
Certificates then Outstanding, (y) the Acceleration of, or a failure to
pay at final maturity, all of the outstanding Equipment Trust
Certificates or (z) the occurrence of a Federal Express Corporation
Bankruptcy Event.
"Trust Accounts" has the meaning assigned to such term in Section
2.2(a).
"Trustee Incumbency Certificate" has the meaning assigned to such
term in Section 2.5(a).
"Trustee Representatives" has the meaning assigned to such term in
Section 2.5(a).
"Underwriters" means Morgan Stanley & Co. Incorporated, First
Chicago Capital Markets, Inc., Goldman, Sachs & Co. and J.P. Morgan
Securities Inc.
"Underwriting Agreement" means the Underwriting Agreement dated
May 22, 1997, among the Underwriters and Federal Express Corporation,
relating to the purchase of the Pass Through Certificates by the
Underwriters, as the same may be amended, supplemented or otherwise
modified from time to time in accordance with its terms.
"Written Notice" means, from (i) the Pass Through Trustee or
Liquidity Provider, a written instrument executed by the Designated
Representative of such Person, and (ii) the Subordination Agent, a
written instrument executed by a Person designated in the Officer's
Certificate of the Subordination Agent delivered on the Closing Date.
An invoice delivered by a Liquidity Provider pursuant to Section 3.1 in
accordance with its normal invoicing procedures shall constitute Written
Notice under such Section.
ARTICLE II
TRUST ACCOUNTS; CONTROLLING PARTY
SECTION 2.1 Agreement to Terms of Subordination; Payments from
Monies Received Only. (a) Each Pass Through Trustee hereby acknowledges and
agrees to the terms of subordination set forth in this Agreement in respect of
each Class of Pass Through Certificates and agrees to enforce such provisions
and cause all payments in respect of the Equipment Trust Certificates and the
Liquidity Facilities to be applied in accordance with the terms of this
Agreement. In addition, each Pass Through Trustee hereby agrees to cause the
Equipment Trust Certificates purchased by the related Pass Through Trust to be
registered in the name of the Subordination Agent, as nominee for such Pass
Through Trustee, to be held in trust by the Subordination Agent solely for the
purpose of facilitating the enforcement of the subordination and other
provisions of this Agreement.
(b) Except as otherwise expressly provided in the next
succeeding sentence of this Section 2.1, all payments to be made by the
Subordination Agent hereunder shall be made only from amounts received by it
that constitute Scheduled Payments, Special Payments or payments under
Articles 8, 9 and 10 of the Participation Agreements, and only to the extent
that the Subordination Agent shall have received sufficient income or proceeds
therefrom to enable it to make such payments in accordance with the terms
hereof. Each Pass Through Trustee and the Subordination Agent hereby agree
and, as provided in each Pass Through Agreement, each Certificateholder, by
its acceptance of a Pass Through Certificate, and each Liquidity Provider, by
entering into the Liquidity Facility to which it is a party, has agreed to
look solely to such amounts to the extent available for distribution to it as
provided in this Agreement and that none of the Pass Through Trustees, Owner
Trustees, Indenture Trustees, Owner Participants nor the Subordination Agent
is personally liable to any of them for any amounts payable or any liability
under this Agreement, any Pass Through Agreement, any Liquidity Facility or
such Pass Through Certificate, except (in the case of the Subordination Agent)
as expressly provided herein or (in the case of the Pass Through Trustee) as
expressly provided in each Pass Through Agreement or (in the case of the Owner
Trustees and the Indenture Trustees) as expressly provided in any Operative
Agreement.
SECTION 2.2 Trust Accounts. (a) Upon the execution of this
Agreement, the Subordination Agent shall establish and maintain in its name
(i) the Collection Account as an Eligible Deposit Account, bearing a
designation clearly indicating that the funds deposited therein are held in
trust for the benefit of the Pass Through Trustees, the Certificateholders and
the Liquidity Providers and (ii) as a sub-account in the Collection Account,
the Special Payments Account as an Eligible Deposit Account, bearing a
designation clearly indicating that the funds deposited therein are held in
trust for the benefit of the Pass Through Trustees, the Certificateholders and
the Liquidity Providers. The Subordination Agent shall establish and maintain
the Cash Accounts pursuant to and under the circumstances set forth in Section
3.6(f) hereof. Upon such establishment and maintenance under Section 3.6(f)
hereof, the Cash Accounts shall, together with the Collection Account,
constitute the "Trust Accounts" hereunder.
(b) Funds on deposit in the Trust Accounts shall be invested and
reinvested by the Subordination Agent in Specified Investments selected by the
Subordination Agent if such investments are reasonably available and have
maturities no later than the earlier of (i) 90 days following the date of such
investment and (ii) the Business Day immediately preceding the Regular
Distribution Date or the date of the related distribution pursuant to Section
2.4 hereof, as the case may be, next following the date of such investment;
provided, however, that following the making of a Downgrade Drawing or a
Non-Extension Drawing under any Liquidity Facility, the Subordination Agent
shall invest and reinvest such amounts at the direction of the Liquidity
Provider funding such Drawing and such Liquidity Provider shall use reasonable
efforts to cause such amounts to be invested in Specified Investments which
yield at least an amount equal to the interest (excluding the Applicable
Margin) that is payable to such Liquidity Provider in respect of such amounts
pursuant to Section 3.07 of the relevant Liquidity Facility (it being
understood that it may not be feasible to obtain such a yield). Unless
otherwise expressly provided in this Agreement (including, without limitation,
with respect to Investment Earnings on deposit in the Cash Accounts, Section
3.6(f) hereof), any Investment Earnings shall be deposited in the Collection
Account when received by the Subordination Agent and shall be applied by the
Subordination Agent in the same manner as the principal amount of such
investment is to be applied and any losses shall be charged against the
principal amount invested, in each case net of the Subordination Agent's
reasonable fees and expenses in making such investments. The Subordination
Agent shall not be liable for any loss resulting from any investment,
reinvestment or liquidation required to be made under this Agreement other
than by reason of its willful misconduct or gross negligence. Specified
Investments and any other investment required to be made hereunder shall be
held to their maturities except that any such investment may be sold (without
regard to its maturity) by the Subordination Agent without instructions
whenever such sale is necessary to make a distribution required under this
Agreement. Uninvested funds held hereunder shall not earn or accrue interest.
(c) The Subordination Agent shall possess all right, title and
interest in all funds on deposit from time to time in the Trust Accounts and
in all proceeds thereof (including all income thereon, except as otherwise
provided herein with respect to Investment Earnings). The Trust Accounts
shall be held in trust by the Subordination Agent under the sole dominion and
control of the Subordination Agent for the benefit of the Pass Through
Trustees, the Certificateholders and the Liquidity Providers, as the case may
be. If, at any time, any of the Trust Accounts ceases to be an Eligible
Deposit Account, the Subordination Agent shall within 10 Business Days (or
such longer period, not to exceed 30 calendar days, to which each Rating
Agency may consent) establish a new Collection Account, Special Payments
Account or Cash Account, as the case may be, as an Eligible Deposit Account
and shall transfer any cash and/or any investments to such new Collection
Account, Special Payments Account or Cash Account, as the case may be. So
long as the Subordination Agent is an Eligible Institution, the Trust
Accounts shall be maintained with it as Eligible Deposit Accounts.
SECTION 2.3 Deposits to the Collection Account and Special
Payments Account. (a) The Subordination Agent shall, upon receipt thereof,
deposit in the Collection Account all Scheduled Payments received by it.
(b) The Subordination Agent shall, on each date when one or more
Special Payments are made to the Subordination Agent as holder of the
Equipment Trust Certificates, deposit in the Special Payments Account the
aggregate amount of such Special Payments.
SECTION 2.4 Distributions of Special Payments. (a) Notice of
Special Payment. Except as provided in Section 2.4(e) below, upon receipt by
the Subordination Agent, as registered holder of the Equipment Trust
Certificates, of any notice of a Special Payment (or, in the absence of any
such notice, upon receipt by the Subordination Agent of a Special Payment),
the Subordination Agent shall promptly give notice thereof to each Pass
Through Trustee and the Liquidity Providers. The Subordination Agent shall
promptly calculate the amount of the redemption or purchase of Equipment Trust
Certificates or the amount of any Overdue Scheduled Payment, as the case may
be, comprising such Special Payment under the applicable Indenture or
Indentures and shall promptly send to each Pass Through Trustee a Written
Notice of such amount and the amount allocable to each Pass Through Trust.
Such Written Notice shall also set the distribution date for such Special
Payment (a "Special Distribution Date"), which shall be the first Business Day
which follows the later to occur of (x) the 15th day after the date of such
Written Notice or (y) the date the Subordination Agent receives or expects to
receive such Special Payment. Amounts on deposit in the Special Payments
Account shall be distributed in accordance with Sections 2.4(b) and 2.4(c)
hereof, as applicable.
(b) (i) Redemptions and Purchases of Equipment Trust
Certificates. So long as no Triggering Event shall have occurred (whether or
not continuing), the Subordination Agent shall make distributions pursuant to
this Section 2.4(b) of amounts on deposit in the Special Payments Account on
account of the redemption or purchase (including, without limitation, a
purchase resulting from the sale of the Equipment Trust Certificates permitted
by Article IV hereof) of all of the Equipment Trust Certificates issued
pursuant to an Indenture on the Special Distribution Date for such Special
Payment in the following order of priority:
first, such amount as shall be required to pay (A) all accrued and
unpaid Liquidity Expenses then in arrears plus (B) the product of (x)
the aggregate amount of all accrued and unpaid Liquidity Expenses not in
arrears to such Special Distribution Date multiplied by (y) a fraction,
the numerator of which is the aggregate outstanding principal amount of
Equipment Trust Certificates being redeemed, purchased or prepaid on
such Special Distribution Date and the denominator of which is the
aggregate outstanding principal amount of all Equipment Trust
Certificates, shall be distributed to the Liquidity Providers pari passu
on the basis of the amount of Liquidity Expenses owed to each Liquidity
Provider;
second, such amount as shall be required to pay (A) all accrued
and unpaid interest then in arrears on all Liquidity Obligations plus
(B) the product of (x) the aggregate amount of all accrued and unpaid
interest on all Liquidity Obligations not in arrears to such Special
Distribution Date (at the rate provided in the applicable Liquidity
Facility) multiplied by (y) a fraction, the numerator of which is the
aggregate outstanding principal amount of Equipment Trust Certificates
being redeemed, purchased or prepaid on such Special Distribution Date
and the denominator of which is the aggregate outstanding principal
amount of all Equipment Trust Certificates, shall be distributed to the
Liquidity Providers pari passu on the basis of the amount of such
accrued and unpaid interest owed to each Liquidity Provider;
third, such amount as shall be required (A) to pay or reimburse
the Liquidity Providers in an amount equal to the amount of any
unreimbursed Interest Drawings under the Liquidity Facilities shall be
distributed to the Liquidity Providers or (B) so long as no Liquidity
Event of Default shall have occurred and be continuing, to replenish the
Cash Accounts up to their respective Required Amounts shall be deposited
in the Cash Accounts, in each such case, pari passu on the basis of the
amounts of such unreimbursed Interest Drawings and deficiencies;
fourth, such amount as shall be required to pay in full Expected
Distributions to the holders of Class A Pass Through Certificates on
such Special Distribution Date shall be distributed to the Pass Through
Trustee of the Class A Pass Through Trust;
fifth, such amount as shall be required to pay in full Expected
Distributions to the holders of Class B Pass Through Certificates on
such Special Distribution Date shall be distributed to the Pass Through
Trustee of the Class B Pass Through Trust;
sixth, such amount as shall be required to pay in full Expected
Distributions to the holders of Class C Pass Through Certificates on
such Special Distribution Date shall be distributed to the Pass Through
Trustee of the Class C Pass Through Trust; and
seventh, the balance, if any, of such Special Payment shall be
transferred to the Collection Account for distribution in accordance
with Section 3.2 hereof.
(ii) Upon the occurrence of a Triggering Event (whether or not
continuing), the Subordination Agent shall make distributions of amounts on
deposit in the Special Payments Account on account of the redemption or
purchase of all of the Equipment Trust Certificates issued pursuant to an
Indenture on the Special Distribution Date for such Special Payment in
accordance with Section 3.3 hereof.
(c) Other Special Payments. Except as provided in clause (e)
below, any amounts on deposit in the Special Payments Account other than in
respect of amounts to be distributed pursuant to Section 2.4(b) shall be
distributed on the Special Distribution Date therefor in accordance with
Article III hereof.
(d) Investment of Amounts in Special Payments Account. Any
amounts on deposit in the Special Payments Account prior to the distribution
thereof pursuant to Section 2.4(b) or (c) shall be invested in accordance with
Section 2.2(b). Investment Earnings on such investments shall be distributed
in accordance with Section 2.4(b) or (c), as the case may be.
(e) Certain Payments. The Subordination Agent will distribute
promptly upon receipt thereof (i) any indemnity payment received by it from
the Owner Participant, the Owner Trustee or Federal Express Corporation in
respect of any Pass Through Trustee or any Liquidity Provider (collectively,
the "Payees") and (ii) any compensation (including, without limitation, any
fees payable to any Liquidity Provider under Section 2.03 of any Liquidity
Facility) received by it from the Owner Participant, the Owner Trustee or
Federal Express Corporation under any Operative Agreement in respect of any
Payee, directly to the Payee entitled thereto.
SECTION 2.5 Designated Representatives. (a) With the delivery
of this Agreement, each Pass Through Trustee shall furnish to the
Subordination Agent, and from time to time thereafter may furnish to the
Subordination Agent, at such Pass Through Trustee's discretion, or upon the
Subordination Agent's request (which request shall not be made more than one
time in any 12-month period), a certificate (a "Trustee Incumbency
Certificate") of a Responsible Officer of such Pass Through Trustee certifying
as to the incumbency and specimen signatures of the officers of such Pass
Through Trustee and the attorney-in-fact and agents of such Pass Through
Trustee (the "Trustee Representatives") authorized to give Written Notices on
behalf of such Pass Through Trustee hereunder. Until the Subordination Agent
receives a subsequent Trustee Incumbency Certificate, it shall be entitled to
rely on the last Trustee Incumbency Certificate delivered to it hereunder.
(b) With the delivery of this Agreement, each Liquidity
Provider shall furnish to the Subordination Agent, and from time to time
thereafter may furnish to the Subordination Agent, at such Liquidity
Provider's discretion, or upon the Subordination Agent's request (which
request shall not be made more than one time in any 12-month period), a
certificate (an "LP Incumbency Certificate") of any authorized signatory of
such Liquidity Provider certifying as to the incumbency and specimen
signatures of any officer, attorney-in-fact, agent or other designated
representative of such Liquidity Provider (the "LP Representatives" and,
together with the Trustee Representatives, the "Designated Representatives")
authorized to give Written Notices on behalf of such Liquidity Provider
hereunder. Until the Subordination Agent receives a subsequent LP Incumbency
Certificate, it shall be entitled to rely on the last LP Incumbency
Certificate delivered to it hereunder.
SECTION 2.6 Controlling Party. (a) The Pass Through Trustees
and the Liquidity Providers hereby agree that, with respect to any Indenture
at any given time, the Indenture Trustee thereunder will be directed (i) in
taking, or refraining from taking, any action with respect to such Indenture
or the Equipment Trust Certificates issued thereunder, so long as no Indenture
Event of Default has occurred and is continuing thereunder, by the holders of
at least a majority of the outstanding principal amount of such Equipment
Trust Certificates (provided that, for so long as the Subordination Agent
is the registered holder of the Equipment Trust Certificates, the
Subordination Agent shall act with respect to this clause (i) in accordance
with the directions of the Pass Through Trustees representing holders of
Pass Through Certificates representing an undivided interest in such
principal amount of Equipment Trust Certificates), and (ii) after the
occurrence and during the continuance of an Indenture Event of Default
thereunder (which has not been cured by the applicable Owner Trustee or the
applicable Owner Participant pursuant to Section 8.03 of such Indenture),
in taking, or refraining from taking, any action with respect to such
Indenture or such Equipment Trust Certificates, including exercising
remedies thereunder (including accelerating the Equipment Trust
Certificates issued thereunder or foreclosing the Lien on the Aircraft
securing such Equipment Trust Certificates), by the Controlling Party.
(b) The Person who shall be the "Controlling Party" with
respect to any Indenture shall be: (x) the Pass Through Trustee of the Class
A Pass Through Trust; (y) upon payment of Final Distributions to the holders
of Class A Pass Through Certificates, the Pass Through Trustee of the Class B
Pass Through Trust; and (z) upon payment of Final Distributions to the holders
of Class B Pass Through Certificates, the Pass Through Trustee of the Class C
Pass Through Trust. For purposes of giving effect to the foregoing, the Pass
Through Trustees (other than the Controlling Party) irrevocably agree (and the
Certificateholders (other than the Certificateholders represented by the
Controlling Party) shall be deemed to agree by virtue of their purchase of
Certificates) that the Subordination Agent, as record holder of the Equipment
Trust Certificates, shall exercise its voting rights in respect of the
Equipment Trust Certificates as directed by the Controlling Party and any vote
so exercised shall be binding upon the Pass Through Trustees and all
Certificateholders.
The Subordination Agent shall give written notice to all of the
other parties to this Agreement promptly upon a change in the identity of the
Controlling Party. Each of the parties hereto agrees that it shall not
exercise any of the rights of the Controlling Party at such time as it is not
the Controlling Party hereunder; provided, however, that nothing herein
contained shall prevent or prohibit any Non-Controlling Party from exercising
such rights as shall be specifically granted to such Non-Controlling Party
hereunder and under the other Operative Agreements.
(c) Notwithstanding the foregoing, the Liquidity Provider with
the then greatest amount of unreimbursed Liquidity Obligations payable to it
under the Liquidity Facilities shall have the right to elect, by Written
Notice to the Subordination Agent and each Pass Through Trustee, to become the
Controlling Party hereunder with respect to any Indenture at any time from and
including the date which is 18 months after the earlier of (i) the
Acceleration of the Equipment Trust Certificates under such Indenture and (ii)
a Final Drawing with respect to the Liquidity Facilities, if, in the case of
clauses (i) and (ii) above, at the time of such election all Liquidity
Obligations owed to such Liquidity Provider under the Liquidity Facilities
have not been paid in full.
(d) The exercise of remedies by the Controlling Party under this
Agreement shall be expressly limited by Section 4.1(a)(ii) hereof.
(e) The Controlling Party shall not be entitled to require or
obligate any Non-Controlling Party to provide funds necessary to exercise any
right or remedy hereunder.
ARTICLE III
RECEIPT, DISTRIBUTION AND APPLICATION OF
AMOUNTS RECEIVED
SECTION 3.1 Written Notice of Distribution. (a) No later than
3:00 P.M. (New York City time) on the Business Day immediately preceding each
Distribution Date (or Special Distribution Date for purposes of Section 2.4(b)
hereof, as the case may be), each of the following Persons shall deliver to
the Subordination Agent a Written Notice setting forth the following
information as at the close of business on such Business Day:
(i) With respect to the Class A Pass Through Certificates, the
Pass Through Trustee of the Class A Pass Through Trust shall separately
set forth the amounts to be paid in accordance with clause "fourth" of
Section 3.2 or Section 2.4(b), as the case may be, hereof;
(ii) With respect to the Class B Pass Through Certificates, the
Pass Through Trustee of the Class B Pass Through Trust shall separately
set forth the amounts to be paid in accordance with clause "fifth" of
Section 3.2 or Section 2.4(b), as the case may be, hereof;
(iii) With respect to the Class C Pass Through Certificates, the
Pass Through Trustee of the Class C Pass Through Trust shall separately
set forth the amounts to be paid in accordance with clause "sixth" of
Section 3.2 or Section 2.4(b), as the case may be, hereof;
(iv) With respect to each Liquidity Facility, the Liquidity
Provider thereunder shall separately set forth the amounts to be paid in
accordance with clauses "first", "second" and "third" of Section 3.2 or
Section 2.4(b), as the case may be, hereof; and
(v) Each Pass Through Trustee shall set forth the amounts to be
paid to it in accordance with clause "seventh" of Section 3.2 hereof.
The notices required under this Section 3.1(a) may be in the form of a
schedule or similar document provided to the Subordination Agent by the
parties referenced therein or by any one of them, which schedule or similar
document may state that, unless there has been a prepayment of the Pass
Through Certificates, such schedule or similar document is to remain in effect
until any substitute notice or amendment shall be given to the Subordination
Agent by the party providing such notice.
(b) Following the occurrence of a Triggering Event, the
Subordination Agent shall request the following information from the following
Persons, and each of the following Persons shall, upon the request of the
Subordination Agent, deliver a Written Notice to the Subordination Agent
setting forth for such Person the following information:
(i) With respect to the Class A Pass Through Certificates, the
Pass Through Trustee of the Class A Pass Through Trust shall separately
set forth the amounts to be paid in accordance with clauses "first" and
"fifth" (relating to indemnity payments made by the Class A Pass Through
Certificateholders) and "sixth" of Section 3.3 hereof;
(ii) With respect to the Class B Pass Through Certificates, the
Pass Through Trustee of the Class B Pass Through Trust shall separately
set forth the amounts to be paid in accordance with clauses "first" and
"fifth" (relating to indemnity payments made by the Class B Pass Through
Certificateholders) and "seventh" of Section 3.3 hereof;
(iii) With respect to the Class C Pass Through Certificates, the
Pass Through Trustee of the Class C Pass Through Trust shall separately
set forth the amounts to be paid in accordance with clauses "first" and
"fifth" (relating to indemnity payments made by the Class C Pass Through
Certificateholders) and "eighth" of Section 3.3 hereof;
(iv) With respect to each Liquidity Facility, the Liquidity
Provider thereunder shall separately set forth the amounts to be paid in
accordance with clauses "first", "second" "third" and "fourth" of
Section 3.3 hereof; and
(v) Each Pass Through Trustee shall set forth the amounts to be
paid in accordance with clause "fifth" of Section 3.3 hereof.
(c) At such time as a Pass Through Trustee or a Liquidity
Provider shall have received all amounts owing to it (and, in the case of a
Pass Through Trustee, the Certificateholders for which it is acting) pursuant
to Section 2.4, 3.2 or 3.3 hereof, as applicable, and, in the case of a
Liquidity Provider, its commitment under the related Liquidity Facility shall
have terminated or expired, such Person shall, by a Written Notice, so inform
the Subordination Agent and each other party to this Agreement.
(d) As provided in Section 6.5 hereof, the Subordination Agent
shall be fully protected in relying on any of the information set forth in a
Written Notice provided by the Pass Through Trustee or any Liquidity Provider
pursuant to paragraphs (a) through (c) above and shall have no independent
obligation to verify, calculate or recalculate any amount set forth in any
Written Notice delivered in accordance with such paragraphs.
(e) Any Written Notice delivered by a Pass Through Trustee or a
Liquidity Provider, as applicable, pursuant to Section 3.1(a), 3.1(b) or
3.1(c) hereof, if made prior to 10:00 A.M. (New York City time) shall be
effective on the date delivered (or if delivered later shall be effective as
of the next Business Day). Subject to the terms of this Agreement, the
Subordination Agent shall as promptly as practicable comply with any such
instructions; provided, however, that any transfer of funds pursuant to any
instruction received after 10:00 A.M. (New York City time) on any Business Day
may be made on the next succeeding Business Day.
(f) In the event the Subordination Agent shall not receive from
any Person any information set forth in paragraphs (a) or (b) above which is
required to enable the Subordination Agent to make a distribution to such
Person pursuant to Section 3.2 or 3.3 hereof, the Subordination Agent shall
request such information and, failing to receive any such information, the
Subordination Agent shall not make such distribution(s) to such Person. In
such event, the Subordination Agent shall make distributions pursuant to
clauses "first" through "eighth" of Section 3.2 and clauses "first" through
"ninth" of Section 3.3 to the extent it shall have sufficient information to
enable it to make such distributions, and shall continue to hold any funds
remaining, after making such distributions, until the Subordination Agent
shall receive all necessary information to enable it to distribute any funds
so withheld.
(g) On such dates (but not more frequently than monthly) as any
Liquidity Provider or any Pass Through Trustee shall request, the
Subordination Agent shall send to such party a written statement reflecting
all amounts on deposit with the Subordination Agent pursuant to Section 3.1(f)
hereof.
SECTION 3.2 Distribution of Amounts on Deposit in the Collection
Account. Except as otherwise provided in Sections 2.4, 3.1(f), 3.3, 3.4 and
3.6(b), amounts on deposit in the Collection Account (or, in the case of any
amount described in Section 2.4(c), on deposit in the Special Payments
Account) shall be promptly distributed on each Regular Distribution Date (or,
in the case of any amount described in Section 2.4(c), on the Special
Distribution Date therefor) in the following order of priority and in
accordance with the information provided to the Subordination Agent pursuant
to Section 3.1(a) hereof:
first, such amount as shall be required to pay all accrued and
unpaid Liquidity Expenses owed to each Liquidity Provider shall be
distributed to the Liquidity Providers pari passu on the basis of the
amount of Liquidity Expenses owed to each Liquidity Provider;
second, such amount as shall be required to pay in full the
aggregate amount of interest accrued on all Liquidity Obligations (at
the rate, or in the amount, provided in the applicable Liquidity
Facility) and unpaid shall be distributed to the Liquidity Providers
pari passu on the basis of the amount of such accrued and unpaid
interest owed to each Liquidity Provider;
third, such amount as shall be required (A) to pay or reimburse
the Liquidity Providers in an amount equal to the amount of all
Liquidity Obligations then due (other than amounts payable pursuant to
clause "first" or "second" of this Section 3.2) shall be distributed to
the Liquidity Providers, and (B) if applicable, to replenish the Cash
Accounts up to their respective Required Amounts shall be deposited in
the Cash Accounts, in each such case, pari passu on the basis of the
amounts of such unreimbursed Liquidity Obligations and/or deficiencies;
fourth, such amount as shall be required to pay in full Expected
Distributions to the holders of the Class A Pass Through Certificates on
such Distribution Date shall be distributed to the Pass Through Trustee
of the Class A Pass Through Trust;
fifth, such amount as shall be required to pay in full Expected
Distributions to the holders of the Class B Pass Through Certificates on
such Distribution Date shall be distributed to the Pass Through Trustee
of the Class B Pass Through Trust;
sixth, such amount as shall be required to pay in full Expected
Distributions to the holders of the Class C Pass Through Certificates on
such Distribution Date shall be distributed to the Pass Through Trustee
of the Class C Pass Through Trust;
seventh, such amount as shall be required to pay in full the
aggregate unpaid amount of fees and expenses payable as of such
Distribution Date to the Subordination Agent and each Pass Through
Trustee pursuant to the terms of this Agreement and the Pass Through
Agreements, as the case may be, shall be distributed to the
Subordination Agent and such Pass Through Trustee; and
eighth, the balance, if any, of any such payment remaining
thereafter shall be held in the Collection Account for later
distribution in accordance with this Article III.
SECTION 3.3 Distribution of Amounts on Deposit Following a
Triggering Event. (a) Except as otherwise provided in Sections 3.1(f) and
3.6(b) hereof, upon the occurrence of a Triggering Event and at all times
thereafter, all funds in the Collection Account or the Special Payments
Account shall be promptly distributed by the Subordination Agent in the
following order of priority:
first, such amount as shall be required to reimburse (i) the
Subordination Agent for any out-of-pocket costs and expenses actually
incurred by it (to the extent not previously reimbursed) in the
protection of, or the realization of the value of, the Equipment Trust
Certificates or any Trust Property, shall be applied by the
Subordination Agent in reimbursement of such costs and expenses, (ii)
each Pass Through Trustee for any amounts of the nature described in
clause (i) above actually incurred by it under the applicable Pass
Through Agreement (to the extent not previously reimbursed), shall be
distributed to such Pass Through Trustee and (iii) any Liquidity
Provider or Certificateholder for payments, if any, made by it to the
Subordination Agent or any Pass Through Trustee in respect of amounts
described in clause (i) above, shall be distributed to such Liquidity
Provider or to the applicable Pass Through Trustee for the account of
such Certificateholder, in each such case, pari passu on the basis of
all amounts described in clauses (i) through (iii) above;
second, such amount remaining as shall be required to pay all
accrued and unpaid Liquidity Expenses shall be distributed to each
Liquidity Provider pari passu on the basis of the amount of Liquidity
Expenses owed to each Liquidity Provider;
third, such amount remaining as shall be required to pay accrued
and unpaid interest on the Liquidity Obligations as provided in the
Liquidity Facilities shall be distributed to each Liquidity Provider
pari passu on the basis of the amount of such accrued and unpaid
interest owed to each Liquidity Provider;
fourth, such amount remaining as shall be required (A) to pay in
full the outstanding amount of all Liquidity Obligations, whether or not
then due (other than amounts payable pursuant to clause "second" or
"third" of this Section 3.3) shall be distributed to each Liquidity
Provider that has not funded a Cash Account in accordance with Section
3.6(c) or 3.6(i) hereof, and/or (B) if applicable, so long as no
Performing Certificate Deficiency exists and no Liquidity Event of
Default has occurred and is continuing, to replenish the Cash Accounts
up to their respective Required Amounts shall be deposited in the Cash
Accounts, in each case, pari passu on the basis of the amount of
Liquidity Obligations owed to each Liquidity Provider and/or such
deficiencies;
fifth, such amount as shall be required to reimburse or pay (i)
the Subordination Agent for any Tax (other than Taxes imposed on
compensation paid hereunder), expense, fee, charge or other loss
incurred by or any other amount payable to the Subordination Agent in
connection with the transactions contemplated hereby (to the extent not
previously reimbursed), shall be applied by the Subordination Agent in
reimbursement of such amount, (ii) each Pass Through Trustee for any Tax
(other than Taxes imposed on compensation paid under the applicable Pass
Through Agreement), expense, fee, charge, loss or any other amount
payable to such Pass Through Trustee under the applicable Pass Through
Agreements (to the extent not previously reimbursed), shall be
distributed to such Pass Through Trustee and (iii) each
Certificateholder for payments, if any, made by it pursuant to Section
5.2 hereof in respect of amounts described in clause (i) above, shall be
distributed to the applicable Pass Through Trustee for the account of
such Certificateholder, in each such case, pari passu on the basis of
all amounts described in clauses (i) through (iii) above;
sixth, such amount remaining as shall be required to pay in full
Adjusted Expected Distributions on the Class A Pass Through Certificates
shall be distributed to the Pass Through Trustee of the Class A Pass
Through Trust;
seventh, such amount remaining as shall be required to pay in full
Adjusted Expected Distributions on the Class B Pass Through Certificates
shall be distributed to the Pass Through Trustee of the Class B Pass
Through Trust;
eighth, such amount remaining as shall be required to pay in full
Adjusted Expected Distributions on the Class C Pass Through Certificates
shall be distributed to the Pass Through Trustee of the Class C Pass
Through Trust; and
ninth, such amount remaining shall be retained in the Collection
Account until the immediately succeeding Distribution Date or, if all
Classes of Certificates shall have been paid in full, shall be
distributed to the Owner Trustee.
SECTION 3.4 Other Payments. Any payments received by the
Subordination Agent for which no provision as to the application thereof is
made in this Agreement shall be distributed by the Subordination Agent in the
order of priority specified in Section 3.3.
SECTION 3.5 Payments to the Pass Through Trustee and the
Liquidity Providers. Any amounts distributed hereunder to any Liquidity
Provider shall be paid to such Liquidity Provider by wire transfer of funds
to the address such Liquidity Provider shall provide to the Subordination
Agent. The Subordination Agent shall provide a Written Notice of any such
transfer to the applicable Liquidity Provider, as the case may be, at the
time of such transfer. Any amounts distributed hereunder by the
Subordination Agent to any Pass Through Trustee which shall not be the same
institution as the Subordination Agent shall be paid to such Pass Through
Trustee by wire transfer of funds at the address such Pass Through Trustee
shall provide to the Subordination Agent.
SECTION 3.6 Liquidity Facilities. (a) Interest Drawings. If on
any Distribution Date, after giving effect to the subordination provisions of
this Agreement, the Subordination Agent shall not have sufficient funds for
the payment of any amounts due and owing in respect of accrued interest on the
Class A Pass Through Certificates or the Class B Pass Through Certificates (at
the Stated Interest Rate for such Class of Pass Through Certificates), then,
prior to 12:00 noon (New York City time) on the Business Day following such
Distribution Date, the Subordination Agent shall request a drawing (each such
drawing, an "Interest Drawing") under the Liquidity Facility with respect to
such Class of Pass Through Certificates in an amount equal to the lesser of
(i) an amount sufficient to pay the amount of such accrued interest (at the
Stated Interest Rate for such Class of Pass Through Certificates) and (ii) the
Available Amount under such Liquidity Facility, and shall pay such amount to
the Pass Through Trustee with respect to such Class of Pass Through
Certificates in payment of such accrued interest.
(b) Application of Interest Drawings. Notwithstanding anything
to the contrary contained in this Agreement, (i) all payments received by the
Subordination Agent in respect of an Interest Drawing under the Class A
Liquidity Facility and all amounts withdrawn by the Subordination Agent from
the Class A Cash Account, and payable in each case to the Class A Pass Through
Certificateholders, shall be promptly distributed to the Pass Through Trustee
of the Class A Pass Through Trust and (ii) all payments received by the
Subordination Agent in respect of an Interest Drawing under the Class B
Liquidity Facility and all amounts withdrawn by the Subordination Agent from
the Class B Cash Account, and payable in each case to the Class B Pass Through
Certificateholders, shall be promptly distributed to the Pass Through Trustee
of the Class B Pass Through Trust.
(c) Downgrade Drawings. If at any time the debt rating of any
Liquidity Provider issued by either Rating Agency is lower than the applicable
Threshold Rating, within 30 days after receiving notice of such downgrading
(but no later than the expiration date of the Liquidity Facility issued by the
downgraded Liquidity Provider (the "Downgraded Facility")), such Liquidity
Provider may arrange, or the Subordination Agent (in consultation with Federal
Express Corporation), may arrange for a Replacement Liquidity Provider to
issue and deliver a Replacement Liquidity Facility to the Subordination Agent.
If a Downgraded Facility has not been replaced in accordance with the terms of
this paragraph, the Subordination Agent shall, on such 30th day (or if such
30th day is not a Business Day, on the next succeeding Business Day) (or, if
earlier, the expiration date of such Downgraded Facility), request a drawing
in accordance with and to the extent permitted by such Downgraded Facility
(such drawing, a "Downgrade Drawing") of all available and undrawn amounts
thereunder. Amounts drawn pursuant to a Downgrade Drawing shall be maintained
and invested as provided in Section 3.6(f) hereof. The Liquidity Provider may
also arrange for a Replacement Liquidity Provider to issue and deliver a
Replacement Liquidity Facility at any time after such Downgrade Drawing so
long as such Downgrade Drawing has not been reimbursed in full to the
Liquidity Provider.
(d) Non-Extension Drawings. If any Liquidity Facility with
respect to any Class of Pass Through Certificates is scheduled to expire on a
date (the "Stated Expiration Date") prior to the date that is 15 days after
the Final Legal Distribution Date for such Class of Pass Through Certificates,
then, no earlier than the 60th day and no later than the 40th day prior to the
then Stated Expiration Date, the Subordination Agent shall request that such
Liquidity Provider extend the Stated Expiration Date for a period of 364 days
after the Stated Expiration Date (unless the obligations of such Liquidity
Provider thereunder are earlier terminated in accordance with such Liquidity
Facility). The Liquidity Provider shall advise the Subordination Agent, no
earlier than 40 days and no later than 25 days prior to such Stated Expiration
Date, whether, in its sole discretion, it agrees to so extend the Stated
Expiration Date. If, on or before such 25th day, such Liquidity Facility
shall not have been so extended or replaced in accordance with Section 3.6(e),
or if the Liquidity Provider fails irrevocably and unconditionally to advise
the Subordination Agent on or before the 25th day prior to the Stated
Expiration Date then in effect that such Stated Expiration Date shall be so
extended, the Subordination Agent shall, on such 25th day (or as soon as
possible thereafter), in accordance with and to the extent permitted by the
terms of the expiring Liquidity Facility (a "Non-Extended Facility"), request
a drawing under such expiring Liquidity Facility (such drawing, a
"Non-Extension Drawing") of all available and undrawn amounts thereunder.
Amounts drawn pursuant to any Non-Extension Drawing shall be maintained and
invested in accordance with Section 3.6(f) hereof.
(e) Issuance of Replacement Liquidity Facility. At any time,
the Subordination Agent may, at its option, in consultation with Federal
Express Corporation, arrange for a Replacement Liquidity Facility to replace
the Liquidity Facility for any Class of Pass Through Certificates; provided
that the initial Liquidity Provider may not be replaced unless there shall
have become due to the initial Liquidity Provider amounts pursuant to Section
3.1, 3.2 or 3.3 of the Liquidity Facilities and the replacement of the initial
Liquidity Provider would reduce or eliminate the obligation to pay such
amounts. In any such consultation, the Subordination Agent shall accept the
recommendations of Federal Express Corporation in the absence of a good faith
reason not to do so. If such Replacement Liquidity Facility is provided at
any time after a Downgrade Drawing or a Non-Extension Drawing has been made,
all funds on deposit in the relevant Cash Account will be returned to the
Liquidity Provider being replaced. No such Replacement Liquidity Facility
executed in connection therewith shall become effective and no such
Replacement Liquidity Facility shall be deemed a "Liquidity Facility" under
the Operative Agreements, unless and until (i) the conditions referred to in
the immediately following paragraph shall have been satisfied and (ii) if such
Replacement Liquidity Facility shall materially adversely affect the rights,
remedies, interests or obligations of the Class A Pass Through
Certificateholders or the Class B Pass Through Certificateholders under any of
the Operative Agreements, the applicable Pass Through Trustee shall have
consented, in writing, to the execution and issuance of such Replacement
Liquidity Facility.
In connection with the issuance of each Replacement Liquidity
Facility, the Subordination Agent shall (x) prior to the issuance of such
Replacement Liquidity Facility, obtain written confirmation from each Rating
Agency that such Replacement Liquidity Facility will not cause a reduction of
the rating then in effect for any Class of Pass Through Certificates by such
Rating Agency (without regard to the ratings of any Liquidity Provider being
replaced pursuant to Section 3.6(c) hereof), (y) pay all Liquidity Obligations
then owing to the replaced Liquidity Provider (which payment shall be made
first from available funds in the Cash Account as described in clause (vii) of
Section 3.6(f) hereof and thereafter from any other available source,
including, without limitation, a drawing under the Replacement Liquidity
Facility, it being understood that no Replacement Liquidity Facility shall
become effective (other than insofar as necessary to permit the repayment of
amounts owed to the replaced Liquidity Provider) until all amounts owed to the
replaced Liquidity Provider have been paid) and (z) cause the issuer of the
Replacement Liquidity Facility to deliver the Replacement Liquidity Facility
to the Subordination Agent, together with a legal opinion opining that such
Replacement Liquidity Facility is an enforceable obligation of such
Replacement Liquidity Provider. Upon satisfaction of the conditions set forth
in this Section 3.6(e), (i) the replaced Liquidity Facility shall terminate
and (ii) such Replacement Liquidity Provider shall be deemed to be a Liquidity
Provider with the rights and obligations of a Liquidity Provider hereunder and
under the other Operative Agreements and such Replacement Liquidity Facility
shall be deemed to be a Liquidity Facility hereunder and under the other
Operative Agreements.
(f) Cash Accounts; Withdrawals; Investments. In the event the
Subordination Agent shall draw all available amounts under the Class A
Liquidity Facility or the Class B Liquidity Facility pursuant to Section
3.6(c) or a Final Drawing shall be made as provided in the Liquidity Facility,
amounts so drawn shall be deposited by the Subordination Agent in the Class A
Cash Account or the Class B Cash Account, respectively. Amounts so deposited
shall be invested in Specified Investments in accordance with Section 2.2(b)
hereof. Investment Earnings on amounts on deposit in the Cash Accounts as a
result of any drawings under Section 3.6(c) hereof (other than to the extent
such drawing becomes a Final Drawing) shall be paid to the respective
Liquidity Provider entitled thereto prior to giving effect to the
distributions below on each Distribution Date commencing on the first
Distribution Date after any such drawing. Investment Earnings on amounts on
deposit in the Cash Accounts as a result of any drawings under Section 3.6(i)
hereof (and amounts which become a Final Drawing) shall be deposited in the
Collection Account. The Subordination Agent shall deliver a written statement
to the recipient Liquidity Provider one day prior to each Distribution Date
setting forth the aggregate amount of Investment Earnings held in the Cash
Accounts as of such date. In addition, from and after the date funds are so
deposited, the Subordination Agent shall make withdrawals from such account as
follows:
(i) on each Distribution Date, the Subordination Agent shall, to
the extent it shall not have received funds to pay accrued and unpaid
interest on the Class A Pass Through Certificates (at the Stated
Interest Rate for the Class A Pass Through Certificates) from any other
source, withdraw from the Class A Cash Account, and pay to the Pass
Through Trustee of the Class A Pass Through Trust an amount equal to the
lesser of (x) an amount necessary to pay accrued and unpaid interest (at
the Stated Interest Rate for the Class A Pass Through Certificates) on
such Class A Pass Through Certificates and (y) the amount on deposit in
the Class A Cash Account;
(ii) on each Distribution Date, the Subordination Agent shall, to
the extent it shall not have received funds to pay accrued and unpaid
interest on the Class B Pass Through Certificates (at the Stated
Interest Rate for the Class B Pass Through Certificates) from any other
source, withdraw from the Class B Cash Account, and pay to the Pass
Through Trustee of the Class B Pass Through Trust an amount equal to the
lesser of (x) an amount necessary to pay accrued and unpaid interest (at
the Stated Interest Rate for the Class B Pass Through Certificates) on
such Class B Pass Through Certificates and (y) the amount on deposit in
the Class B Cash Account;
(iii) on each date on which the Pool Balance of the Class A Pass
Through Trust shall have been reduced by payments made to the Class A
Pass Through Certificateholders pursuant to Section 2.4, 3.2 or 3.3
hereof, the Subordination Agent shall withdraw from the Class A Cash
Account such amount as is necessary so that, after giving effect to the
reduction of the Pool Balance on such date (including any such reduction
resulting from a prior withdrawal of amounts on deposit in the Class A
Cash Account on such date), the Required Amount (with respect to the
Class A Liquidity Facility) will be on deposit in the Class A Cash
Account and shall first, pay such amount to the Class A Liquidity
Provider until the Liquidity Obligations (with respect to the Class A
Pass Through Certificates) shall have been paid in full, and second,
deposit any remaining amount in the Collection Account;
(iv) on each date on which the Pool Balance of the Class B Pass
Through Trust shall have been reduced by payments made to the Class B
Pass Through Certificateholders pursuant to Section 2.4, 3.2 or 3.3
hereof, the Subordination Agent shall withdraw from the Class B Cash
Account such amount as is necessary so that, after giving effect to the
reduction of the Pool Balance on such date (including any such reduction
resulting from a prior withdrawal of amounts on deposit in the Class B
Cash Account on such date), the Required Amount (with respect to the
Class B Liquidity Facility) will be on deposit in the Class B Cash
Account and shall first, pay such amount to the Class B Liquidity
Provider until the Liquidity Obligations (with respect to the Class B
Pass Through Certificates) shall have been paid in full, and second,
deposit any remaining amount in the Collection Account;
(v) if a Replacement Liquidity Facility for any Class of Pass
Through Certificates shall be delivered to the Subordination Agent
following the date on which funds have been deposited into the Cash
Account for such Class of Pass Through Certificates, the Subordination
Agent shall withdraw all amounts on deposit in such Cash Account and
shall pay such amounts to the replaced Liquidity Provider until all
Liquidity Obligations owed to such Person shall have been paid in full,
and shall deposit any remaining amount in the Collection Account; and
(vi) following the payment of Final Distributions with respect
to any Class of Pass Through Certificates, on the date on which the
Subordination Agent shall have been notified by the Liquidity Provider
for such Class of Pass Through Certificates that the Liquidity
Obligations owed to such Liquidity Provider have been paid in full, the
Subordination Agent shall withdraw all amounts on deposit in the Cash
Account in respect of such Class of Pass Through Certificates and shall
deposit such amount in the Collection Account.
(g) Reinstatement. With respect to any Interest Drawing under
the Liquidity Facility for any Pass Through Trust, upon the reimbursement of
the applicable Liquidity Provider for all or any part of the amount of such
Interest Drawing, together with any accrued interest thereon, the Available
Amount of such Liquidity Facility shall be reinstated by an amount equal to
the amount so reimbursed to the applicable Liquidity Provider but not to
exceed the Required Amount for such Liquidity Facility; provided, however,
that such Liquidity Facility shall not be so reinstated in part or in full at
any time if (x) both (i) a Triggering Event shall have occurred and (ii) a
Performing Certificate Deficiency exists or (y) a Liquidity Event of Default
shall have occurred and be continuing under such Liquidity Facility. In the
event that at any time prior to both the occurrence of a Triggering Event and
the existence of a Performing Certificate Deficiency funds are withdrawn from
any Cash Account pursuant to clauses (i), (ii) or (iii) of Section 3.6(f)
hereof, then funds received by the Subordination Agent prior to both the
occurrence of a Triggering Event and the existence of a Performing Certificate
Deficiency shall be deposited in such Cash Account as provided in clause
"third" of Section 2.4(b), clause "third" of Section 3.2 or clause "fourth" of
Section 3.3, as applicable, and applied in accordance with Section 3.6(f)
hereof.
(h) Reimbursement. The amount of each drawing under the
Liquidity Facilities shall be due and payable, together with interest thereon,
on the dates and at the rates, respectively, provided in the Liquidity
Facilities.
(i) Final Drawing. If any action is required under a Liquidity
Facility to be taken by the Subordination Agent in order to make a Final
Drawing thereunder, the Subordination Agent shall not fail to take such
action. Upon receipt of the proceeds of a Final Drawing under the related
Liquidity Facility, the Subordination Agent shall maintain and invest such
proceeds in accordance with Section 3.6(f) hereof.
(j) Reduction of Stated Amount. Promptly following each date
on which the Required Amount of the Liquidity Facility for a Class of Pass
Through Certificates is reduced as a result of a distribution to the
Certificateholders of such Class of Pass Through Certificates, the
Subordination Agent shall, if such Liquidity Facility provides for reductions
of the Stated Amount of such Liquidity Facility and if such reductions are not
automatic, request the Liquidity Provider for such Class of Pass Through
Certificates to reduce such Stated Amount to an amount equal to the Required
Amount with respect to such Liquidity Facility (as calculated by the
Subordination Agent after giving effect to such payment). Each such request
shall be made in accordance with the provisions of the applicable Liquidity
Facility.
(k) Relation to Subordination Provisions. Interest Drawings
under the Liquidity Facilities and withdrawals from the Cash Accounts, in each
case, in respect of interest on the Pass Through Certificates of any Class,
will be distributed to the Pass Through Trustee for such Class of Pass Through
Certificates, notwithstanding Sections 3.2, 3.3 and 3.6(h) hereof.
ARTICLE IV
EXERCISE OF REMEDIES
SECTION 4.1 Directions from the Controlling Party. (a) (i)
Following the occurrence and during the continuation of an Indenture Event of
Default under any Indenture, the Controlling Party shall direct the Indenture
Trustee under such Indenture in the exercise of remedies available to the
holders of the Equipment Trust Certificates issued pursuant to such Indenture,
including, without limitation, the ability to vote all such Equipment Trust
Certificates in favor of declaring all of the unpaid principal amount of such
Equipment Trust Certificates and accrued interest thereon to be due and
payable under, and in accordance with, the provisions of such Indenture.
Subject to the Owner Trustees' and the Owner Participants' rights set forth in
the Indentures to purchase the Equipment Trust Certificates, if the Equipment
Trust Certificates issued pursuant to any Indenture have been Accelerated
following an Indenture Event of Default with respect thereto, the Controlling
Party may sell, assign, contract to sell or otherwise dispose of and deliver
all (but not less than all) of such Equipment Trust Certificates to any Person
at public or private sale, at any location at the option of the Controlling
Party, all upon such terms and conditions as it may reasonably deem advisable
in accordance with applicable law.
(ii) Subject to the Owner Trustees' and the Owner Participants'
rights set forth in the Indentures to purchase the Equipment Trust
Certificates, and notwithstanding the foregoing, so long as any Pass Through
Certificates remain Outstanding, during the period ending on the date which is
nine months after the earlier of (x) the Acceleration of the Equipment Trust
Certificates issued pursuant to any Indenture or (y) the occurrence of a
Federal Express Corporation Bankruptcy Event, without the consent of the Pass
Through Trustee, (A) no Aircraft subject to the Lien of such Indenture or such
Equipment Trust Certificates may be sold if the net proceeds from such sale
would be less than the Minimum Sale Price for such Aircraft or such Equipment
Trust Certificates and (B) the amount and payment dates of rentals payable by
Federal Express Corporation under the Lease for such Aircraft may not be
adjusted if, as a result of such adjustment, the discounted present value of
all such rentals would be less than 75% of the discounted present value of the
rentals payable by Federal Express Corporation under such Lease before giving
effect to such adjustment, in each case, using the weighted average interest
rate of the Equipment Trust Certificates issued pursuant to such Indenture as
the discount rate.
(iii) At the request of the Controlling Party, the Subordination
Agent may from time to time during the continuance of an Indenture Event of
Default (and before the occurrence of a Triggering Event) commission LTV
Appraisals with respect to the related Aircraft.
(iv) After a Triggering Event occurs and any Equipment Trust
Certificates becomes a Non-Performing Equipment Trust Certificates, the
Subordination Agent shall obtain LTV Appraisals for the Aircraft as soon as
practicable and additional LTV Appraisals on or prior to each anniversary of
the date of such initial LTV Appraisals; provided that, if the Controlling
Party reasonably objects to the appraised value of the Aircraft shown in any
such LTV Appraisals, the Controlling Party shall have the right to obtain or
cause to be obtained substitute LTV Appraisals (including any LTV Appraisals
based upon physical inspection of the Aircraft).
(b) The Controlling Party shall take such actions as it may
reasonably deem most effectual to complete the sale or other disposition of
such Aircraft or Equipment Trust Certificates. In addition, in lieu of any
sale, assignment, contract to sell or other disposition, the Subordination
Agent, on behalf of the Controlling Party, may maintain possession of such
Equipment Trust Certificates and continue to apply monies received in respect
of such Equipment Trust Certificates in accordance with Article III hereof.
In addition, in lieu of such sale, assignment, contract to sell or other
disposition, or in lieu of such maintenance of possession, the Controlling
Party may instruct the Indenture Trustee under such Indenture to foreclose on
the Lien on the related Aircraft or to take any other remedial action
permitted under such Indenture or applicable law.
SECTION 4.2 Remedies Cumulative. Each and every right, power and
remedy given to the Pass Through Trustees, the Controlling Party or the
Subordination Agent specifically or otherwise in this Agreement shall be
cumulative and shall be in addition to every other right, power and remedy
herein specifically given or now or hereafter existing at law, in equity or by
statute, and each and every right, power and remedy whether specifically
herein given or otherwise existing may, subject always to the terms and
conditions hereof, be exercised from time to time and as often and in such
order as may be deemed expedient by any Pass Through Trustee, the Controlling
Party or the Subordination Agent, as appropriate, and the exercise or the
beginning of the exercise of any power or remedy shall not be construed to be
a waiver of the right to exercise at the same time or thereafter any other
right, power or remedy. No delay or omission by any Pass Through Trustee, the
Controlling Party or the Subordination Agent in the exercise of any right,
remedy or power or in the pursuit of any remedy shall impair any such right,
power or remedy or be construed to be a waiver of any default or to be an
acquiescence therein.
SECTION 4.3 Discontinuance of Proceedings. In case any party to
this Agreement (including the Controlling Party in such capacity) shall have
instituted any Proceeding to enforce any right, power or remedy under this
Agreement by foreclosure, entry or otherwise, and such Proceeding shall have
been discontinued or abandoned for any reason or shall have been determined
adversely to the Person instituting such Proceeding, then and in every such
case each such party shall, subject to any determination in such proceedings,
be restored to its former position and rights hereunder, and all rights,
remedies and powers of such party shall continue as if no such Proceeding had
been instituted.
SECTION 4.4 Right of Certificateholders and Liquidity Providers
to Receive Payments Not to Be Impaired. Anything in this Agreement to the
contrary notwithstanding but subject to each Pass Through Agreement, the right
of any Certificateholder or any Liquidity Provider, respectively, to receive
payments pursuant to Section 2.4, 3.2 or 3.3 hereof when due, or to institute
suit for the enforcement of any such payment on or after the applicable
Distribution Date, shall not be impaired or affected without the consent of
such Certificateholder or such Liquidity Provider, respectively.
SECTION 4.5 Undertaking for Costs. In any suit for the
enforcement of any right or remedy under this Agreement or in any suit against
any Controlling Party or the Subordination Agent for any action taken or
omitted by it as Controlling Party or Subordination Agent, as the case may be,
a court in its discretion may require the filing by any party litigant in the
suit of an undertaking to pay the costs of the suit, and the court in its
discretion may assess reasonable costs, including reasonable attorneys' fees
and expenses, against any party litigant in the suit, having due regard to the
merits and good faith of the claims or defenses made by the party litigant.
The provisions of this Section do not apply to a suit instituted by the
Subordination Agent, a Liquidity Provider or a Pass Through Trustee or a suit
by Certificateholders holding more than 10% of the original principal amount
of any Class of Pass Through Certificates.
ARTICLE V
DUTIES OF THE SUBORDINATION AGENT;
AGREEMENTS OF THE PASS THROUGH TRUSTEE, ETC.
SECTION 5.1 Notice of Indenture Event of Default or Triggering
Event. (a) In the event the Subordination Agent shall have actual knowledge
of the occurrence of an Indenture Event of Default or a Triggering Event, as
promptly as practicable, and in any event within 10 days after obtaining
knowledge thereof, the Subordination Agent shall transmit by mail to the
Rating Agencies, the Liquidity Providers and the Pass Through Trustees notice
of such Indenture Event of Default or Triggering Event, unless such Indenture
Event of Default or Triggering Event shall have been cured or waived. For all
purposes of this Agreement, in the absence of actual knowledge on the part of
a Responsible Officer, the Subordination Agent shall not be deemed to have
knowledge of any Indenture Event of Default or Triggering Event unless
notified in writing by one or more Pass Through Trustees, one or more
Liquidity Providers or one or more Certificateholders.
(b) Other Notices. The Subordination Agent will furnish to each
Liquidity Provider and each Pass Through Trustee, promptly upon receipt
thereof, duplicates or copies of all reports, notices, requests, demands,
certificates, financial statements and other instruments furnished to the
Subordination Agent as registered holder of the Equipment Trust Certificates
or otherwise in its capacity as Subordination Agent to the extent the same
shall not have been otherwise directly distributed to such Liquidity Provider
or such Pass Through Trustee, as applicable, pursuant to the express provision
of any other Operative Agreement.
SECTION 5.2 Indemnification. The Subordination Agent shall not
be required to take any action or refrain from taking any action under Section
5.1 (other than the first sentence thereof) or Article IV hereof unless the
Subordination Agent shall have been indemnified (to the extent and in the
manner reasonably satisfactory to the Subordination Agent) against any
liability, cost or expense (including counsel fees and expenses) which may be
incurred in connection therewith. The Subordination Agent shall not be under
any obligation to take any action under this Agreement and nothing
contained in this Agreement shall require the Subordination Agent to expend
or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder 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 or
liability is not reasonably assured to it. The Subordination Agent shall
not be required to take any action under Section 5.1 (other than the first
sentence thereof) or Article IV hereof, nor shall any other provision of
this Agreement be deemed to impose a duty on the Subordination Agent to
take any action, if the Subordination Agent shall have been advised by
counsel that such action is contrary to the terms hereof or is otherwise
contrary to law.
SECTION 5.3 No Duties Except as Specified in Intercreditor
Agreement. The Subordination Agent shall not have any duty or obligation to
take or refrain from taking any action under, or in connection with, this
Agreement, except as expressly provided by the terms of this Agreement; and no
implied duties or obligations shall be read into this Agreement against the
Subordination Agent. The Subordination Agent agrees that it will, in its
individual capacity and at its own cost and expense (but without any right of
indemnity in respect of any such cost or expense under Section 7.1 hereof)
promptly take such action as may be necessary to duly discharge all Liens on
any of the Trust Accounts or any monies deposited therein which result from
claims against it in its individual capacity not related to its activities
hereunder or any other Operative Agreement.
SECTION 5.4 Notice from the Liquidity Providers and the Pass
Through Trustee. If a Responsible Officer of any Liquidity Provider or any
Pass Through Trustee has notice of an Indenture Event of Default or a
Triggering Event, such Person shall promptly give notice thereof to all other
Liquidity Providers and Pass Through Trustees and to the Subordination Agent,
provided, however, that no such Person shall have any liability hereunder as a
result of its failure to deliver any such notice.
ARTICLE VI
THE SUBORDINATION AGENT
SECTION 6.1 Authorization, Acceptance of Trusts and Duties. Each
Pass Through Trustee for the Class A and Class B Pass Through Trusts hereby
designates and appoints the Subordination Agent as the agent and trustee of
such Pass Through Trustee under the applicable Liquidity Facility and
authorizes the Subordination Agent to enter into the applicable Liquidity
Facility as agent and trustee for such Pass Through Trustee. Each of the
Liquidity Providers and the Pass Through Trustees hereby designates and
appoints the Subordination Agent as the Subordination Agent under this
Agreement. First Security Bank, National Association, hereby accepts the
duties hereby created and applicable to it as the Subordination Agent and
agrees to perform the same but only upon the terms of this Agreement and
agrees to receive and disburse all monies received by it in accordance with
the terms hereof. The Subordination Agent shall not be answerable or
accountable under any circumstances, except (a) for its own willful misconduct
or negligence, (b) as provided in Section 2.2 hereof and (c) for liabilities
that may result from the inaccuracy of any representation or warranty of the
Subordination Agent made in its individual capacity in any Operative
Agreement. The Subordination Agent shall not be liable for any error of
judgment made in good faith by a Responsible Officer of the Subordination
Agent, unless it is proved that the Subordination Agent was negligent in
ascertaining the pertinent facts.
SECTION 6.2 Absence of Duties. The Subordination Agent shall
have no duty to see to any recording or filing of this Agreement or any other
document, or to see to the maintenance of any such recording or filing.
SECTION 6.3 No Representations or Warranties as to Documents.
The Subordination Agent in its individual capacity does not make nor shall be
deemed to have made any representation or warranty as to the validity,
legality or enforceability of this Agreement or any other Operative Agreement
or as to the correctness of any statement contained in any thereof, except for
the representations and warranties of the Subordination Agent, made in its
individual capacity, under any Operative Agreement to which it is a party.
The Certificateholders, the Pass Through Trustees and the Liquidity Providers
make no representation or warranty hereunder whatsoever.
SECTION 6.4 No Segregation of Monies; No Interest. Any monies
paid to or retained by the Subordination Agent pursuant to any provision
hereof and not then required to be distributed to any Pass Through Trustee or
any Liquidity Provider as provided in Articles II and III hereof need not be
segregated in any manner except to the extent required by such Articles II and
III and by law, and the Subordination Agent shall not (except as otherwise
provided in Section 2.2 hereof) be liable for any interest thereon; provided,
however, that any payments received or applied hereunder by the Subordination
Agent shall be accounted for by the Subordination Agent so that any portion
thereof paid or applied pursuant hereto shall be identifiable as to the source
thereof.
SECTION 6.5 Reliance; Agents; Advice of Counsel. The
Subordination Agent shall not incur liability to anyone in acting upon any
signature, instrument, notice, resolution, request, consent, order,
certificate, report, opinion, bond or other document or paper believed by it
to be genuine and believed by it to be signed by the proper party or parties.
As to the Pool Balance of any Pass Through Trust as of any date, the
Subordination Agent may for all purposes hereof rely on a certificate signed
by any Responsible Officer of the applicable Pass Through Trustee, and such
certificate shall constitute full protection to the Subordination Agent for
any action taken or omitted to be taken by it in good faith in reliance
thereon. As to any fact or matter relating to the Liquidity Providers or the
Pass Through Trustees the manner of ascertainment of which is not specifically
described herein, the Subordination Agent may for all purposes hereof rely on
a certificate, signed by any Responsible Officer of the applicable Liquidity
Provider or Pass Through Trustee, as the case may be, as to such fact or
matter, and such certificate shall constitute full protection to the
Subordination Agent for any action taken or omitted to be taken by it in good
faith in reliance thereon. The Subordination Agent shall assume, and shall be
fully protected in assuming, that each of the Liquidity Providers and each of
the Pass Through Trustees are authorized to enter into this Agreement and to
take all action to be taken by them pursuant to the provisions hereof, and
shall not inquire into the authorization of each of the Liquidity Providers
and the Pass Through Trustee with respect thereto. In the administration of
the trusts hereunder, the Subordination Agent may execute any of the trusts or
powers hereof and perform its powers and duties hereunder directly or through
agents or attorneys and may consult with counsel, accountants and other
skilled persons to be selected and retained by it, and the Subordination Agent
shall not be liable for the acts or omissions of any agent appointed with due
care or for anything done, suffered or omitted in good faith by it in
accordance with the advice or written opinion of any such counsel, accountants
or other skilled persons.
SECTION 6.6 Capacity in Which Acting. The Subordination Agent
acts hereunder solely as agent and trustee herein and not in its individual
capacity, except as otherwise expressly provided in the Operative Agreements.
SECTION 6.7 Compensation. The Subordination Agent shall be
entitled to reasonable compensation, including expenses and disbursements, for
all services rendered hereunder and shall have a priority claim to the extent
set forth in Article III hereof on all monies collected hereunder for the
payment of such compensation, to the extent that such compensation shall not
be paid by others. The Subordination Agent agrees that it shall have no right
against any Pass Through Trustee or Liquidity Provider for any fee as
compensation for its services as agent under this Agreement. The provisions
of this Section 6.7 shall survive the termination of this Agreement.
SECTION 6.8 May Become Certificateholder. The institution acting
as Subordination Agent hereunder may become a Certificateholder and have all
rights and benefits of a Certificateholder to the same extent as if it were
not the institution acting as the Subordination Agent.
SECTION 6.9 Subordination Agent Required; Eligibility. There
shall at all times be a Subordination Agent hereunder which shall be a
corporation organized and doing business under the laws of the United States
of America or of any State thereof or of the District of Columbia having a
combined capital and surplus of at least $100,000,000 (or 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 thereof or of the District of
Columbia and having a combined capital and surplus of at least $100,000,000),
if there is such an institution willing and able to perform the duties of the
Subordination Agent hereunder upon reasonable or customary terms. Such
corporation shall be a citizen of the United States and shall be authorized
under the laws of the United States or any State thereof or of the District of
Columbia to exercise corporate trust powers and shall be subject to
supervision or examination by federal, state or District of Columbia
authorities. If such corporation publishes reports of condition at least
annually, pursuant to law or to the requirements of any of the aforesaid
supervising or examining authorities, then, for the purposes of this Section
6.9, 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
condition so published.
In case at any time the Subordination Agent shall cease to be
eligible in accordance with the provisions of this Section, the Subordination
Agent shall resign immediately in the manner and with the effect specified in
Section 8.1.
SECTION 6.10 Money to Be Held in Trust. All Equipment Trust
Certificates, monies and other property deposited with or held by the
Subordination Agent pursuant to this Agreement shall be held in trust for the
benefit of the parties entitled to such Equipment Trust Certificates, monies
and other property. All such Equipment Trust Certificates, monies or other
property shall be held in the Trust Department of the institution acting as
Subordination Agent hereunder.
ARTICLE VII
INDEMNIFICATION OF SUBORDINATION AGENT
SECTION 7.1 Scope of Indemnification. The Subordination Agent
shall be indemnified hereunder to the extent and in the manner described in
Articles 8 and 9 of the Participation Agreements. The indemnities contained
in such Articles 8 and 9 shall survive the termination of this Agreement.
ARTICLE VIII
SUCCESSOR SUBORDINATION AGENT
SECTION 8.1 Replacement of Subordination Agent; Appointment of
Successor. The Subordination Agent may resign at any time by so notifying the
Pass Through Trustees and the Liquidity Providers. The Liquidity Provider or
the Controlling Party (or, prior to the occurrence of a Triggering Event, the
Person who would be the Controlling Party if a Triggering Event had occurred)
may remove the Subordination Agent for cause by so notifying the Subordination
Agent and may appoint a successor Subordination Agent. The Controlling Party
(or, prior to the occurrence of a Triggering Event, the Person who would be
the Controlling Party if a Triggering Event had occurred) shall remove the
Subordination Agent if:
(1) the Subordination Agent fails to comply with Section 6.9
hereof;
(2) the Subordination Agent is adjudged bankrupt or insolvent;
(3) a receiver or other public officer takes charge of the
Subordination Agent or its property; or
(4) the Subordination Agent otherwise becomes incapable of
acting.
If the Subordination Agent resigns or is removed or if a vacancy
exists in the office of Subordination Agent for any reason (the Subordination
Agent in such event being referred to herein as the retiring Subordination
Agent), the Controlling Party (or, prior to the occurrence of a Triggering
Event, the Person who would be the Controlling Party if a Triggering Event had
occurred), in consultation with Federal Express Corporation, shall promptly
appoint a successor Subordination Agent.
Any corporation into which the Subordination Agent 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 Subordination Agent shall be a party, or any corporation to which
substantially all the corporate trust business of the Subordination Agent
may be transferred, shall, subject to the terms of Section 6.9 hereof, be
the Subordination Agent hereunder and under the other Operative Agreements
to which the Subordination Agent is a party without further act, except
that such Person shall give prompt subsequent notice of such transaction to
the Liquidity Provider and each Pass Through Trustee.
A successor Subordination Agent shall deliver a written acceptance
of its appointment as Subordination Agent hereunder to the retiring
Subordination Agent, upon which the resignation or removal of the retiring
Subordination Agent shall become effective, and the successor Subordination
Agent shall have all the rights, powers and duties of the Subordination Agent
under this Agreement. The successor Subordination Agent shall send a written
notice of its succession to the Liquidity Providers and the Pass Through
Trustees. The retiring Subordination Agent shall promptly transfer its rights
under each of the Liquidity Facilities and all of the property held by it as
Subordination Agent to the successor Subordination Agent.
If a successor Subordination Agent does not take office within 60
days after the retiring Subordination Agent resigns or is removed, the
retiring Subordination Agent or either one or more of the Pass Through
Trustees or Federal Express Corporation may petition any court of competent
jurisdiction for the appointment of a successor Subordination Agent.
If the Subordination Agent fails to comply with Section 6.9 hereof
(to the extent applicable), one or more of the Pass Through Trustees, one or
more of the Liquidity Providers or Federal Express Corporation may petition
any court of competent jurisdiction for the removal of the Subordination Agent
and the appointment of a successor Subordination Agent.
Notwithstanding the foregoing, no resignation or removal of the
Subordination Agent shall be effective unless and until a successor has been
appointed. No appointment of a successor Subordination Agent shall be
effective unless and until the Rating Agencies shall have delivered a Ratings
Confirmation.
ARTICLE IX
SUPPLEMENTS AND AMENDMENTS
SECTION 9.1 Amendments, Waivers, Etc. (a) This Agreement may
not be supplemented, amended or modified without the consent of each Pass
Through Trustee (acting with the consent of holders of Pass Through
Certificates of the related Class evidencing interests in the related Pass
Through Trust aggregating not less than a majority in interest in such Trust),
the Subordination Agent and each Liquidity Provider; provided, however, that
this Agreement may be supplemented, amended or modified without the consent of
any Pass Through Trustee (i) if such supplement or amendment cures an
ambiguity or inconsistency or does not materially adversely affect such Pass
Through Trustee or the holders of the related Class of Pass Through
Certificates or (ii) to provide for a Non-Extension Drawing under a
Replacement Liquidity Facility which is scheduled to expire prior to the date
which is 15 days after the Final Legal Distribution Date and for the deposit
of such Non-Extension Drawing in the Class A Cash Account provided, in the
case of this clause (ii), that the Subordination Agent shall have received a
Ratings Confirmation after giving effect to such amendment or modification.
Notwithstanding the foregoing, without the consent of each Certificateholder
and each Liquidity Provider, no supplement, amendment or modification of this
Agreement may (i) reduce the percentage of the interest in any Pass Through
Trust evidenced by the Pass Through Certificates issued by such Pass Through
Trust necessary to consent to modify or amend any provision of this Agreement
or to waive compliance therewith or (ii) modify Section 2.4, 3.2 or 3.3
hereof, relating to the distribution of monies received by the Subordination
Agent hereunder from the Equipment Trust Certificates or pursuant to the
Liquidity Facilities. Nothing contained in this Section shall require the
consent of a Pass Through Trustee at any time following the payment of Final
Distributions with respect to the related Class of Pass Through Certificates.
(b) In the event that the Subordination Agent, as the registered
holder of any Equipment Trust Certificates, receives a request for its consent
to any amendment, modification or waiver under such Equipment Trust
Certificates, the Indenture pursuant to which such Equipment Trust
Certificates were issued, or the Lease, Participation Agreement or other
related document, (i) if no Indenture Event of Default shall have occurred and
be continuing, the Subordination Agent shall request instructions with respect
to each Series of Equipment Trust Certificates from the Pass Through Trustee
of the Pass Through Trust which holds such Equipment Trust Certificates and
shall vote or consent in accordance with the instructions of such Pass Through
Trustee and (ii) if any Indenture Event of Default (which has not been cured
by the applicable Owner Trustee or the applicable Owner Participant pursuant
to Section 4.03 of such Indenture) shall have occurred and be continuing with
respect to such Indenture, the Subordination Agent will exercise its voting
rights as directed by the Controlling Party; provided that no such amendment,
modification or waiver shall, without the consent of each Liquidity Provider,
reduce the amount of rent, supplemental rent or stipulated loss values payable
by Federal Express Corporation under the Lease; and provided further that no
amendment of or supplement to any Indenture, any Lease or any Participation
Agreement or waiver or modification of the terms of, or consent under, any
thereof, shall, without the consent of each Liquidity Provider, have any of
the effects listed in the provisos to Section 7.11 or 13.02 or Section 8.01(c)
of the Indenture.
SECTION 9.2 Subordination Agent Protected. If, in the reasonable
opinion of the institution acting as the Subordination Agent hereunder, any
document required to be executed pursuant to the terms of Section 9.1 affects
any right, duty, immunity or indemnity with respect to it under this Agreement
or any Liquidity Facility, the Subordination Agent may in its discretion
decline to execute such document.
SECTION 9.3 Effect of Supplemental Agreements. Upon the
execution of any amendment or supplement hereto pursuant to the provisions
hereof, this Agreement shall be and be deemed to be modified and amended in
accordance therewith and the respective rights, limitations of rights,
obligations, duties and immunities under this Agreement of the parties
hereto and beneficiaries hereof shall thereafter be determined, exercised
and enforced hereunder subject in all respects to such modifications and
amendments, and all the terms and conditions of any such supplemental
agreement shall be and be deemed to be part of the terms and conditions of
this Agreement for any and all purposes. In executing or accepting any
supplemental agreement permitted by this Article IX, the Subordination
Agent shall be entitled to receive, and shall be fully protected in relying
upon, an opinion of counsel stating that the execution of such supplemental
agreement is authorized or permitted by this Agreement.
SECTION 9.4 Notice to Rating Agencies. Promptly following its
receipt of each amendment, consent, modification, supplement or waiver
contemplated by this Article IX, the Subordination Agent shall send a copy
thereof to each Rating Agency.
ARTICLE X
MISCELLANEOUS
SECTION 10.1 Termination of Intercreditor Agreement. Following
payment of Final Distributions with respect to each Class of Pass Through
Certificates and the payment in full of all Liquidity Obligations to the
Liquidity Providers and provided that there shall then be no other amounts due
to the Certificateholders, the Pass Through Trustees, the Liquidity Providers
and the Subordination Agent hereunder or under the Pass Through Agreements,
and that the commitment of the Liquidity Providers under the Liquidity
Facilities shall have expired or been terminated, this Agreement and the
trusts created hereby shall terminate and this Agreement shall be of no
further force or effect. Except as aforesaid or otherwise provided, this
Agreement and the trusts created hereby shall continue in full force and
effect in accordance with the terms hereof.
SECTION 10.2 Intercreditor Agreement for Benefit of the Pass
Through Trustees, Liquidity Providers and Subordination Agent. Nothing in
this Agreement, whether express or implied, shall be construed to give to any
Person other than the Pass Through Trustees, the Liquidity Providers and the
Subordination Agent any legal or equitable right, remedy or claim under or in
respect of this Agreement.
SECTION 10.3 Notices. Unless otherwise expressly specified or
permitted by the terms hereof, all notices, requests, demands, authorizations,
directions, consents, waivers or documents provided or permitted by this
Agreement to be made, given, furnished or filed shall be in writing, mailed by
certified mail, postage prepaid or by Federal Express Corporation courier
service, or by confirmed telecopy and
(i) if to the Subordination Agent, addressed to at its office at:
First Security Bank, National Association
79 South Main Street
Salt Lake City, UT 84111
Attention: Corporate Trust Services
(ii) if to any Pass Through Trustee, addressed to it at its
office at:
First Security Bank, National Association
79 South Main Street
Salt Lake City, UT 84111
Attention: Corporate Trust Services
(iii) if to any Liquidity Provider, addressed to it at its office
at:
Kredietbank N.V.
New York Branch
125 West 55th Street
New York, New York 10019
Attention: General Manager
Telecopy: (212) 956-5580
Whenever any notice in writing is required to be given by any Pass Through
Trustee or Liquidity Provider or the Subordination Agent to any of the other
of them, such notice shall be deemed given and such requirement satisfied when
such notice is received, if such notice is mailed by certified mail, postage
prepaid or by Federal Express Corporation courier service or is sent by
confirmed telecopy addressed as provided above. Any party hereto may change
the address to which notices to such party will be sent by giving notice of
such change to the other parties to this Agreement.
SECTION 10.4 Severability. Any provision of this Agreement which
is prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and any
such prohibition or unenforceability in any jurisdiction shall not invalidate
or render unenforceable such provision in any other jurisdiction.
SECTION 10.5 No Oral Modifications or Continuing Waivers. No
terms or provisions of this Agreement may be changed, waived, discharged or
terminated orally, but only by an instrument in writing signed by the party or
other Person against whom enforcement of the change, waiver, discharge or
termination is sought and any other party or other Person whose consent is
required pursuant to this Agreement and any waiver of the terms hereof shall
be effective only in the specific instance and for the specific purpose given.
SECTION 10.6 Successors and Assigns. All covenants and agreements
contained herein shall be binding upon, and inure to the benefit of, each of
the parties hereto and the successors and assigns of each, all as herein
provided.
SECTION 10.7 Headings. The headings of the various Articles and
Sections herein and in the table of contents hereto are for convenience of
reference only and shall not define or limit any of the terms or provisions
hereof.
SECTION 10.8 Counterpart Form. This Agreement may be executed by
the parties hereto in separate counterparts, each of which when so executed
and delivered shall be an original, but all such counterparts shall together
constitute but one and the same agreement.
SECTION 10.9 Subordination. (a) As between the Liquidity
Providers, on the one hand, and the Pass Through Trustees and the
Certificateholders, on the other hand, this Agreement shall be a subordination
agreement for purposes of Section 510 of the United States Bankruptcy Code, as
amended from time to time.
(b) Notwithstanding the provisions of this Agreement, if prior
to the payment in full to the Liquidity Providers of all Liquidity Obligations
then due and payable, any party hereto shall have received any payment or
distribution in respect of Equipment Trust Certificates or any other amount
under the Indentures or other Operative Agreements which, had the
subordination provisions of this Agreement been properly applied to such
payment, distribution or other amount, would not have been distributed to such
Person, then such payment, distribution or other amount shall be received and
held in trust by such Person and paid over or delivered to the Subordination
Agent for application as provided herein.
(c) If any Pass Through Trustee, any Liquidity Provider or the
Subordination Agent receives any payment in respect of any obligations owing
hereunder (or, in the case of the Liquidity Providers, in respect of the
Liquidity Obligations), which is subsequently invalidated, declared
preferential, set aside and/or required to be repaid to a trustee, receiver or
other party, then, to the extent of such payment, such obligations (or, in the
case of the Liquidity Providers, such Liquidity Obligations) intended to be
satisfied shall be revived and continue in full force and effect as if such
payment had not been received.
(d) The Pass Through Trustees (on behalf of themselves and the
holders of Certificates), the Liquidity Providers and the Subordination Agent
confirm that the payment priorities specified in Sections 2.4, 3.2 and 3.3
shall apply in all circumstances, notwithstanding the fact that the
obligations owed to the Pass Through Trustees and the holders of Certificates
are secured by certain assets and the Liquidity Obligations are not so
secured. The Pass Through Trustees expressly agree (on behalf of themselves
and the holders of Certificates) not to assert priority over the holders of
Liquidity Obligations due to their status as secured creditors in any
bankruptcy, insolvency or other legal proceeding.
(e) Each of the Pass Through Trustees (on behalf of itself and
the holders of Certificates), the Liquidity Providers and the Subordination
Agent may take any of the following actions without impairing its rights under
this Agreement:
(i) obtain a lien on any property to secure any amounts owing to
it hereunder, including, in the case of the Liquidity Providers, the
Liquidity Obligations;
(ii) obtain the primary or secondary obligation of any other
obligor with respect to any amounts owing to it hereunder, including, in
the case of the Liquidity Providers, any of the Liquidity Obligations;
(iii) renew, extend, increase, alter or exchange any amounts owing
to it hereunder, including, in the case of the Liquidity Providers, any
of the Liquidity Obligations, or release or compromise any obligation of
any obligor with respect thereto;
(iv) refrain from exercising any right or remedy, or delay in
exercising such right or remedy, which it may have; or
(v) take any other action which might discharge a subordinated
party or a surety under applicable law;
provided, however, that the taking of any such actions by any of the Pass
Through Trustees, the Liquidity Providers or the Subordination Agent shall not
prejudice the rights or adversely affect the obligations of any other party
under this Agreement.
SECTION 10.10 GOVERNING LAW. THIS AGREEMENT SHALL IN ALL
RESPECTS BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE
STATE OF NEW YORK, INCLUDING ALL MATTERS OF CONSTRUCTION, VALIDITY AND
PERFORMANCE.
SECTION 10.11 Submission to Jurisdiction; Waiver of Jury Trial;
Waiver of Immunity. (a) Each of the parties hereto hereby irrevocably and
unconditionally:
(i) submits for itself and its property in any legal action or
proceeding relating to this Agreement or any other Operative Agreement,
or for recognition and enforcement of any judgment in respect hereof or
thereof, to the nonexclusive general jurisdiction of the courts of the
State of New York, the courts of the United States of America for the
Southern District of New York, and the appellate courts from any thereof;
(ii) consents that any such action or proceedings may be brought
in such courts, and waives any objection that it may now or hereafter
have that the venue of any such action or proceeding was brought in an
inconvenient court and agrees not to plead or claim the same;
(iii) agrees that service of process in any such action or
proceeding may be effected by mailing a copy thereof by registered or
certified mail (or any substantially similar form and mail), postage
prepaid, to each party hereto at its address set forth in Section 10.3
hereof, or at such other address of which the other parties shall have
been notified pursuant thereto; and
(iv) agrees that nothing herein shall affect the right to effect
service of process in any other manner permitted by law or shall limit
the right to sue in any other jurisdiction.
(b) EACH OF THE PARTIES HERETO HEREBY AGREES TO WAIVE ITS
RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON
OR ARISING OUT OF THIS AGREEMENT OR ANY DEALINGS BETWEEN THEM RELATING TO THE
SUBJECT MATTER OF THIS AGREEMENT AND THE RELATIONSHIP THAT IS BEING
ESTABLISHED, including, without limitation, contract claims, tort claims,
breach of duty claims and all other common law and statutory claims. Each of
the parties warrants and represents that it has reviewed this waiver with its
legal counsel, and that it knowingly and voluntarily waives its jury trial
rights following consultation with such legal counsel. THIS WAIVER IS
IRREVOCABLE, AND CANNOT BE MODIFIED EITHER ORALLY OR IN WRITING, AND THIS
WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR
MODIFICATIONS TO THIS AGREEMENT.
(c) The Liquidity Provider hereby waives any immunity it may
have from the jurisdiction of the courts of the United States or of any State
and waives any immunity any of its properties located in the United States may
have from attachment or execution upon a judgement entered by any such court
under the United States Foreign Sovereign Immunities Act of 1976 or any
similar successor legislation.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be duly executed by their respective officers thereunto duly authorized, as
of the day and year first above written, and acknowledge that this Agreement
has been made and delivered in the City of New York, and this Agreement has
become effective only upon such execution and delivery.
FIRST SECURITY BANK, NATIONAL
ASSOCIATION, not in its individual
capacity but solely as Pass Through
Trustee
By ________________________________
Name:
Title:
KREDIETBANK N.V., NEW YORK BRANCH,
as Class A Liquidity Provider and
Class B Liquidity Provider
By ________________________________
Name:
Title:
By ________________________________
Name:
Title:
FIRST SECURITY BANK, NATIONAL
ASSOCIATION, not in its individual
capacity except as expressly set
forth herein but solely as
Subordination Agent and trustee
By ________________________________
Name:
Title:
SCHEDULE 1 TO
INTERCREDITOR AGREEMENT
Indentures
SCHEDULE 2 TO
INTERCREDITOR AGREEMENT
Participation Agreements
IRREVOCABLE REVOLVING CREDIT AGREEMENT
CLASS A PASS THROUGH CERTIFICATES
Dated as of May 1, 1997
between
FIRST SECURITY BANK, NATIONAL ASSOCIATION
as Subordination Agent,
as agent and trustee for the
Federal Express Corporation 1997-1-A Pass Through Trust,
as Borrower
and
KREDIETBANK N.V., NEW YORK BRANCH,
as Liquidity Provider
Relating to
Federal Express Corporation 1997-1-A Pass Through Trust
7.50% Federal Express Corporation Pass Through Certificates,
Series 1997-1
TABLE OF CONTENTS
Page
----
ARTICLE I
DEFINITIONS
Section 1.01 Certain Defined Terms.................................. 1
ARTICLE II
AMOUNT AND TERMS OF THE COMMITMENT
Section 2.01 The Advances........................................... 6
Section 2.02 Making the Advances.................................... 6
Section 2.03 Fees................................................... 8
Section 2.04 Reduction or Termination of the Commitment............. 8
Section 2.05 Repayments of Interest Advances or the Final Advance... 8
Section 2.06 Repayments of Downgrade Advances....................... 9
Section 2.07 Payments to the Liquidity Provider Under the
Intercreditor Agreement.............................. 10
Section 2.08 Book Entries........................................... 10
Section 2.09 Payments from Available Funds Only..................... 10
ARTICLE III
OBLIGATIONS OF THE BORROWER
Section 3.01 Increased Costs........................................ 10
Section 3.02 Capital Adequacy....................................... 11
Section 3.03 Payments Free of Deductions............................ 12
Section 3.04 Payments............................................... 13
Section 3.05 Computations........................................... 13
Section 3.06 Payment on Non-Business Days........................... 13
Section 3.07 Interest............................................... 13
Section 3.08 Replacement of Borrower................................ 15
Section 3.09 Funding Loss Indemnification........................... 15
Section 3.10 Illegality............................................. 15
ARTICLE IV
CONDITIONS PRECEDENT
Section 4.01 Conditions Precedent to Effectiveness of Section 2.01.. 16
Section 4.02 Conditions Precedent to Borrowing...................... 18
ARTICLE V
COVENANTS
Section 5.01 Affirmative Covenants of the Borrower.................. 18
Section 5.02 Negative Covenants of the Borrower..................... 19
ARTICLE VI
FINAL ADVANCE
Section 6.01 Final Advance.......................................... 19
ARTICLE VII
MISCELLANEOUS
Section 7.01 Amendments, Etc........................................ 20
Section 7.02 Notices, Etc........................................... 20
Section 7.03 No Waiver; Remedies.................................... 20
Section 7.04 Further Assurances..................................... 21
Section 7.05 Indemnification; Survival of Certain Provisions........ 21
Section 7.06 Liability of the Liquidity Provider.................... 21
Section 7.07 Costs, Expenses and Taxes.............................. 22
Section 7.08 Binding Effect; Participations......................... 22
Section 7.09 Severability........................................... 24
Section 7.10 GOVERNING LAW.......................................... 24
Section 7.11 Submission to Jurisdiction; Waiver of Jury Trial....... 24
Section 7.12 Execution in Counterparts.............................. 25
Section 7.13 Entirety............................................... 25
Section 7.14 Headings; Section References........................... 25
Section 7.15 LIQUIDITY PROVIDER'S OBLIGATION TO MAKE
ADVANCES............................................. 25
ANNEX I - Interest Advance Notice of Borrowing
ANNEX II - Downgrade Advance Notice of Borrowing
ANNEX III - Notice of Replacement Borrower
ANNEX IV - Notice of Automatic Reduction of Commitment
IRREVOCABLE REVOLVING CREDIT AGREEMENT
CLASS A PASS THROUGH CERTIFICATES
IRREVOCABLE REVOLVING CREDIT AGREEMENT, CLASS A PASS THROUGH
CERTIFICATES dated as of May 1, 1997 between FIRST SECURITY BANK, NATIONAL
ASSOCIATION, a national banking association, not in its individual capacity
but solely as Subordination Agent under the Intercreditor Agreement (each as
defined below), as agent and trustee for the Class A Pass Through Trust (as
defined below) (the "Borrower"), and KREDIETBANK N.V., acting through its New
York Branch (the "Liquidity Provider").
W I T N E S S E T H:
WHEREAS, pursuant to the Class A Supplement (such term and all
other capitalized terms used in these recitals having the meanings set forth
or referred to in Section 1.01), the Class A Pass Through Trust is issuing the
Class A Pass Through Certificates; and
WHEREAS, the Borrower, in order to support the timely payment of a
portion of the interest on the Class A Pass Through Certificates in accordance
with their terms, has requested the Liquidity Provider to enter into this
Agreement, providing in part for the Borrower to request in specified
circumstances that Advances be made hereunder.
NOW, THEREFORE, in consideration of the premises, the parties
hereto agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01 Certain Defined Terms. (a) Definitions. As used
in this Agreement and unless otherwise expressly indicated, or unless the
context clearly requires otherwise, the following capitalized terms shall have
the following respective meanings for all purposes of this Agreement:
"Advance" means an Interest Advance, a Final Advance, a Downgrade
Advance or an Applied Downgrade Advance.
"Applicable Liquidity Rate" means the rates of interest specified
in Section 3.07 with respect to any Advance or any other amount.
"Applicable Margin" means (x) with respect to any Downgrade
Advance (other than an Applied Downgrade Advance), .275% (27.5 basis
points) per annum and (y) with respect to any other Advance (including
an Applied Downgrade Advance), 1.50% (150 basis points) per annum.
"Applied Downgrade Advance" has the meaning assigned to such term
in Section 2.06(a).
"Available Commitment" means, at any time of determination, an
amount equal to (i) the Commitment at such time less (ii) subject to the
third sentence of Section 2.02(a), the aggregate amount of each Advance
outstanding at such time; provided that following a Downgrade Advance or
a Final Advance, the Available Commitment shall be zero.
"Base Rate" means a fluctuating interest rate per annum in effect
from time to time, which rate per annum shall at all times be equal to
the higher of (i) the base commercial lending rate announced from time
to time by the Liquidity Provider, or (ii) the rate quoted by the
Liquidity Provider, at approximately 11:00 A.M., New York City time, to
dealers in the New York Federal funds market for overnight offering of
dollars by the Liquidity Provider, for deposit plus .75 of 1 percent
(.75%).
"Base Rate Advance" means an Advance that bears interest at a rate
based upon the Base Rate.
"Borrower" has the meaning assigned to such term in the recital of
parties to this Agreement.
"Borrowing" means the making of Advances requested by delivery of
a Notice of Borrowing or pursuant to Section 6.01.
"Business Day" means any day other than a Saturday or Sunday or a
day on which commercial banks are required or authorized to close in
Memphis, Tennessee, New York, New York or, so long as any Class A Pass
Through Certificates are outstanding, the city and state in which the
Pass Through Trustee of the Class A Pass Through Trust maintains its
Corporate Trust Office or receives or disburses funds, and, if the
applicable Business Day relates to any Advance or other amount bearing
interest based on the LIBOR Rate, on which dealings in U.S. dollars are
carried on in the London interbank market (a "London Business Day");
provided, however, that if the day in question relates to the
effectiveness of the LIBOR Rate, Business Day shall mean a London
Business Day on which commercial banks are not required or authorized to
close in New York, New York.
"Commitment" means, initially, $34,971,075, as the same may be
reduced from time to time in accordance with Section 2.04(a).
"Downgrade Advance" means an Advance made pursuant to Section
2.02(b).
"Effective Date" has the meaning specified in Section 4.01. The
delivery of the certificate of the Liquidity Provider contemplated by
Section 4.01(e) shall be conclusive evidence that the Effective Date has
occurred.
"Expenses" means liabilities, obligations, damages, settlements,
penalties, claims, actions, suits, costs, expenses and disbursements
(including, without limitation, reasonable fees and disbursements of
legal counsel and costs of investigation), provided that Expenses shall
not include any Taxes.
"Expiry Date" means July 30, 2019.
"Final Advance" means an Advance made pursuant to Sections 2.02(c)
and 6.01.
"Intercreditor Agreement" means the Intercreditor Agreement dated
the date hereof, among the Pass Through Trustee, the Liquidity Provider,
the liquidity provider under each Liquidity Facility (other than this
Agreement) and the Subordination Agent, as the same may be amended,
supplemented or otherwise modified from time to time in accordance with
its terms.
"Interest Advance" means an Advance made pursuant to Section
2.02(a).
"Interest Period" means, with respect to any LIBOR Advance, each
of the following periods:
(i) the period beginning on the date such LIBOR Advance is
made (or is converted from a Base Rate Advance) and ending on the
next Regular Distribution Date; and
(ii) each subsequent period commencing on the last day of
the immediately preceding Interest Period and ending on the next
Regular Distribution Date.
"Lending Office" means the lending office of the Liquidity
Provider, presently located at 125 West 55th Street, New York, New York
10019, or such other lending office as the Liquidity Provider from time
to time shall notify the Borrower as its lending office hereunder.
"LIBOR Advance" means an Advance bearing interest at a rate based
upon the LIBOR Rate.
"LIBOR Rate" means, with respect to any Interest Period, the rate
per annum at which deposits in U.S. dollars are offered for the relevant
Interest Period by the Liquidity Provider to prime banks in the London
interbank market at approximately 11:00 A.M. (London time) two Business
Days before the first day of such Interest Period in the principal
amount of the Advance to which such Interest Period is to apply and for
a period of time comparable to such Interest Period, as quoted by the
Liquidity Provider to the Subordination Agent.
"Liquidity Event of Default" means the occurrence of the
following: all of the Equipment Trust Certificates shall have been
either declared to be immediately due and payable or shall not have been
paid at their final maturity. A Liquidity Event of Default shall not
occur upon an automatic acceleration of the Equipment Trust Certificates
as a result of a Federal Express Corporation Bankruptcy Event.
"Liquidity Indemnitee" means (i) the Liquidity Provider, (ii) each
affiliate of the Liquidity Provider, (iii) the respective directors,
officers, employees, agents and servants of the Liquidity Provider and
its affiliates, and (iv) the successors and permitted assigns of the
persons described in clauses (i) through (iii), inclusive.
"Liquidity Provider" has the meaning assigned to such term in the
recital of parties to this Agreement.
"Non-Excluded Tax" has the meaning specified in Section 3.03.
"Notice of Borrowing" has the meaning specified in Section
2.02(d).
"Notice of Replacement Borrower" has the meaning specified in
Section 3.08.
"Participant" has the meaning assigned to such term in Section
7.08(b).
"Performing Note Deficiency" means any time that less than 65% of
the then aggregate outstanding principal amount of all Equipment Trust
Certificates are Performing Equipment Trust Certificates.
"Prospectus" means the basic prospectus included in the
registration statement on Form S-3 (File No. 333-07691) filed by Federal
Express Corporation relating to certain pass through certificates, as
supplemented by the prospectus supplement dated May 22, 1997 reflecting
the terms of the Pass Through Certificates, as such Prospectus may be
amended or supplemented.
"Related Indemnitee" means, with respect to any Liquidity
Indemnitee, its director, officer, employee, agent, affiliate or
employer.
"Replenishment Amount" has the meaning assigned to such term in
Section 2.06(b).
"Required Amount" means, for any day, the sum of the aggregate
amount of interest, calculated at the rate per annum equal to the Stated
Interest Rate for the Class A Pass Through Certificates, that would be
payable on the Class A Pass Through Certificates on each of the three
successive semiannual Regular Distribution Dates immediately following
such day or, if such day is a Regular Distribution Date, on such day and
the succeeding two semiannual Regular Distribution Dates, in each case
calculated on the basis of the Pool Balance of the Class A Pass Through
Certificates on such day and without regard to expected future payments
of principal on the Class A Pass Through Certificates.
"Termination Date" means the earliest to occur of the following:
(i) the Expiry Date; (ii) the date on which the Borrower delivers to the
Liquidity Provider a certificate, signed by a Responsible Officer of the
Borrower, certifying that all of the Class A Pass Through Certificates
have been paid in full (or provision has been made for such payment in
accordance with the Intercreditor Agreement and the Pass Through
Agreements) or are otherwise no longer entitled to the benefits of this
Agreement; (iii) the date on which the Borrower delivers to the
Liquidity Provider a certificate, signed by a Responsible Officer of the
Borrower, certifying that a Replacement Liquidity Facility has been
substituted for this Agreement in full pursuant to Section 3.6(e) of the
Intercreditor Agreement; (iv) the date on which the Liquidity Provider
makes the Final Advance; and (v) the date on which no Advance is or may
(including by reason of reinstatement as herein provided) become
available for a Borrowing hereunder.
"Unpaid Advance" has the meaning assigned to such term in Section
2.05.
(b) Terms Defined in the Intercreditor Agreement. For all
purposes of this Agreement, the following terms shall have the respective
meanings assigned to such terms in the Intercreditor Agreement:
"Class A Cash Account", "Class A Pass Through Certificateholders",
"Class A Pass Through Certificates", "Class A Pass Through Trust",
"Class A Supplement", "Class B Pass Through Certificates", "Class C Pass
Through Certificates", "Closing Date", "Controlling Party", "Corporate
Trust Office", "Distribution Date", "Equipment Trust Certificates",
"Federal Express Corporation", "Federal Express Corporation Bankruptcy
Event", "Indenture", "Investment Earnings", "Liquidity Facility",
"Moody's", "Operative Agreements", "Participation Agreements", "Pass
Through Agreement", "Pass Through Certificate", "Pass Through Trustee",
"Performing Equipment Trust Certificates", "Person", "Pool Balance",
"Rating Agency", "Regular Distribution Dates", "Replacement Liquidity
Facility", "Responsible Officer", "Scheduled Payment", "Special
Payment", "Standard & Poor's", "Stated Interest Rate", "Subordination
Agent", "Taxes", "Threshold Rating", "Triggering Event", "Underwriters",
"Underwriting Agreement" and "Written Notice".
ARTICLE II
AMOUNT AND TERMS OF THE COMMITMENT
Section 2.01 The Advances. The Liquidity Provider hereby
irrevocably agrees, on the terms and conditions hereinafter set forth, to make
Advances to the Borrower from time to time on any Business Day during the
period from the Effective Date until 12:00 Noon (New York City time) on the
Expiry Date (unless the obligations of the Liquidity Provider shall be earlier
terminated in accordance with the terms of Section 2.04(b)) in an aggregate
amount at any time outstanding not to exceed the Commitment.
Section 2.02 Making the Advances. (a) Interest Advances shall
be made in one or more Borrowings by delivery to the Liquidity Provider of one
or more written and completed Notices of Borrowing in substantially the form
of Annex I attached hereto, signed by a Responsible Officer of the Borrower,
in an amount not exceeding the Available Commitment at such time and shall be
used solely for the payment when due of interest on the Class A Pass Through
Certificates at the Stated Interest Rate therefor in accordance with Section
3.6(a) of the Intercreditor Agreement. Each Interest Advance made hereunder
shall automatically reduce the Available Commitment and the amount available
to be borrowed hereunder by subsequent Advances by the amount of such Interest
Advance (subject to reinstatement as provided in the next sentence). Upon
repayment to the Liquidity Provider in full of the amount of any Interest
Advance made pursuant to this Section 2.02(a), together with accrued interest
thereon (as provided herein), the Available Commitment shall be reinstated by
the amount of such repaid Interest Advance; provided, however, that the
Available Commitment shall not be so reinstated at any time if (i) both (x) a
Triggering Event shall have occurred and be continuing and (y) a Performing
Note Deficiency exists or (ii) a Liquidity Event of Default shall have
occurred and be continuing.
(b) A Downgrade Advance shall be made in a single Borrowing upon
a downgrading of the rating of the Liquidity Provider resulting in the
Liquidity Provider's ratings not meeting the Threshold Rating (as provided for
in Section 3.6(c) of the Intercreditor Agreement) unless a Replacement
Liquidity Facility shall have been delivered to the Borrower in accordance
with said Section 3.6(c), by delivery to the Liquidity Provider of a written
and completed Notice of Borrowing in substantially the form of Annex II
attached hereto, signed by a Responsible Officer of the Borrower, in an amount
equal to the Available Commitment at such time, and shall be used to fund the
Class A Cash Account in accordance with said Section 3.6(c).
(c) A Final Advance shall be made by the Liquidity Provider
without the necessity for a Notice of Borrowing at the option of the Liquidity
Provider on the occurrence of an event described in Section 6.01(a) or 6.01(b)
in an amount equal to the Available Commitment at such time, and shall be used
to fund the Class A Cash Account.
(d) Each Borrowing (other than the making of a Final Advance)
shall be made on notice in writing (a "Notice of Borrowing") in substantially
the form required by Section 2.02(a) or 2.02(b), as the case may be, given not
later than 12:00 Noon (New York City time) on the Business Day prior to the
day of the proposed Borrowing by the Borrower to the Liquidity Provider. Upon
satisfaction of the conditions precedent set forth in Section 4.02 with
respect to a requested Borrowing, the Liquidity Provider shall, before 12:00
Noon (New York City time) on the date of such Borrowing or on such later
Business Day specified by the Borrower in such Notice of Borrowing, make
available to the Borrower, in U.S. dollars and in immediately available funds,
the amount of such Borrowing to be paid to the Borrower in accordance with its
payment instructions. If a Notice of Borrowing is delivered by the Borrower
in respect of any Borrowing after 12:00 Noon (New York City time) on a
Business Day, the Liquidity Provider shall, before 12:00 Noon (New York City
time) on the second Business Day next following the day of receipt of such
Notice of Borrowing or on such later Business Day specified by the Borrower in
such Notice of Borrowing, make available to the Borrower, in U.S. dollars and
in immediately available funds, the amount of such Borrowing to be paid to the
Borrower in accordance with its payment instructions. Payments of proceeds of
a Borrowing shall be made by wire transfer of immediately available funds to
the Borrower in accordance with such wire transfer instructions as the
Borrower shall furnish from time to time to the Liquidity Provider for such
purpose. Each Notice of Borrowing shall be irrevocable and binding on the
Borrower.
(e) Upon the making of any Advance requested pursuant to a
Notice of Borrowing, in accordance with the Borrower's payment instructions,
the Liquidity Provider shall be fully discharged of its obligation hereunder
with respect to such Notice of Borrowing, and the Liquidity Provider shall not
thereafter be obligated to make any further Advances hereunder in respect of
such Notice of Borrowing to the Borrower or to any other person (including the
holder of any Class A Pass Through Certificates or the Pass Through Trustee of
the Class A Pass Through Trust) who makes to the Pass Through Trustee of the
Class A Pass Through Trust or the Borrower a demand for payment with respect
to any Class A Pass Through Certificates. By paying to the Borrower proceeds
of Advances requested by the Borrower in accordance with the provisions of
this Agreement, the Liquidity Provider makes no representation as to, and
assumes no responsibility for, the correctness or sufficiency for any purpose
of the amount of the Advances so made and requested.
Section 2.03 Fees. (a) The Borrower agrees to pay to the
Liquidity Provider a fee equal to .25% of the Commitment (as in effect on
the Effective Date) plus $8,750 payable in U.S. dollars. Such fee shall
be payable on the Effective Date.
(b) The Borrower shall pay, or shall cause to be paid, to the
Liquidity Provider, a fee equal to .275% per annum on the average Available
Commitment from the Effective Date to the earlier of the date on which a
Downgrade Advance is made and the date on which the Commitment terminates.
Such fee shall be payable in arrears on each Regular Distribution Date.
Nothing contained in this Section 2.03(b) shall require the Borrower to pay
any amount under this Section 2.03(b) other than to the extent the Borrower
shall have funds available therefor.
Section 2.04 Reduction or Termination of the Commitment. (a)
Automatic Reductions. Promptly following each date on which the Required
Amount is reduced as a result of a reduction in the Pool Balance of the Class
A Pass Through Certificates or otherwise, the Commitment shall automatically
be reduced to an amount equal to such reduced Required Amount (as calculated
by the Borrower). The Borrower shall give notice of any such automatic
reduction of the Commitment (substantially in the form of Annex IV hereto) to
the Liquidity Provider (with a copy to Federal Express Corporation) within two
Business Days thereof. The failure by the Borrower to furnish any such notice
shall not affect such automatic reduction of the Commitment.
(b) Termination. Upon the making of any Downgrade Advance or
Final Advance hereunder or the occurrence of the Termination Date, the
obligation of the Liquidity Provider to make further Advances hereunder shall
automatically and irrevocably terminate, and the Borrower shall not be
entitled to request any further Borrowing hereunder.
Section 2.05 Repayments of Interest Advances or the Final
Advance. Subject to Sections 2.07 and 2.09, the Borrower hereby agrees to
pay, or to cause to be paid, to the Liquidity Provider on each date on which
the Liquidity Provider shall make an Interest Advance or the Final Advance, an
amount equal to (a) the amount of such Interest Advance or the Final Advance
(any such Interest Advance or the Final Advance, until repaid, is referred to
herein as an "Unpaid Advance"), plus (b) interest on the amount of each such
Unpaid Advance as provided in Section 3.07. Subject to Sections 2.06, 2.07
and 2.09, unless otherwise waived by the Liquidity Provider, the Borrower
shall be obligated, without notice of an Advance or demand for repayment from
the Liquidity Provider (which notice and demand are hereby waived by the
Borrower), to repay the Liquidity Provider for all Interest Advances and Final
Advances on the same day as made and all Applied Downgrade Advances on the
same day they become Applied Downgrade Advances in accordance with Section
2.06 hereof. The Borrower and the Liquidity Provider agree that the repayment
in full of each Interest Advance and the Final Advance on the date such
Interest Advance or the Final Advance is made and each Applied Downgrade
Advance on the date it becomes an Applied Downgrade Advance is intended to be
a contemporaneous exchange for new value given to the Borrower by the
Liquidity Provider.
Section 2.06 Repayments of Downgrade Advances. (a) Amounts
advanced hereunder in respect of a Downgrade Advance shall be deposited in the
Class A Cash Account, and invested and withdrawn from the Class A Cash
Account, as set forth in Sections 3.6(c), (e) and (f) of the Intercreditor
Agreement. The Borrower agrees to pay to the Liquidity Provider, on each
Regular Distribution Date, commencing on the first Regular Distribution Date
after the making of a Downgrade Advance, interest on the principal amount
of any such Downgrade Advance as provided in Section 3.07; provided,
however, that (i) any distribution to the Liquidity Provider of Investment
Earnings pursuant to Section 3.6(f) of the Intercreditor Agreement shall
constitute a payment of interest on such Downgrade Advance in the amount of
such Investment Earnings (not to exceed the amount specified in Section
3.07) and (ii) amounts in respect of a Downgrade Advance withdrawn from the
Class A Cash Account for the purpose of paying interest on the Class A Pass
Through Certificates in accordance with Section 3.6(f) of the Intercreditor
Agreement (the amount of any such withdrawal being an "Applied Downgrade
Advance") shall be treated as an Interest Advance under this Agreement for
purposes of determining the Applicable Liquidity Rate for interest payable
thereon. Immediately upon the withdrawal of any amounts from the Class A
Cash Account on account of a reduction in the Required Amount, the Borrower
shall repay the Downgrade Advances in a principal amount equal to the
amount of such reduction, plus interest on the principal amount repaid as
provided in Section 3.07.
(b) At any time when an Applied Downgrade Advance (or any
portion thereof) is outstanding, upon the deposit in the Class A Cash
Account of any amount pursuant to clause "third" of Section 2.4(b), clause
"third" of Section 3.2 or clause "fourth" of Section 3.3 of the
Intercreditor Agreement (any such amount being a "Replenishment Amount")
for the purpose of replenishing the balance thereof up to the Required
Amount at such time, (i) the aggregate outstanding principal amount of all
Applied Downgrade Advances shall be automatically reduced by the amount of
such Replenishment Amount and (ii) the principal amount of the outstanding
Downgrade Advance shall be automatically increased by the amount of such
Replenishment Amount.
(c) Upon the provision of a Replacement Liquidity Facility in
replacement of this Agreement in accordance with Section 3.6(e) of the
Intercreditor Agreement, and prior to the effectiveness of any Replacement
Liquidity Facility, the Borrower agrees that all amounts owing to the
Liquidity Provider shall be repaid in full, whether from advances made by the
Replacement Liquidity Provider, from amounts remaining on deposit in the Class
A Cash Account after giving effect to any application of funds therefrom to
any payment of interest on the Class A Pass Through Certificates on the date
of such replacement, or otherwise.
Section 2.07 Payments to the Liquidity Provider Under the
Intercreditor Agreement. In order to provide for payment or repayment to the
Liquidity Provider of any amounts hereunder, the Intercreditor Agreement
provides that amounts available and referred to in Articles II and III of the
Intercreditor Agreement, to the extent payable to the Liquidity Provider
pursuant to the terms of the Intercreditor Agreement (including, without
limitation, Section 3.6(f) of the Intercreditor Agreement), shall be paid to
the Liquidity Provider in accordance with the terms thereof. Amounts so paid
to the Liquidity Provider shall be applied by the Liquidity Provider in the
order of priority required by the applicable provisions of Articles II and III
of the Intercreditor Agreement.
Section 2.08 Book Entries. The Liquidity Provider shall maintain
in accordance with its usual practice an account or accounts evidencing the
indebtedness of the Borrower resulting from Advances made from time to time
and the amounts of principal and interest payable hereunder and paid from time
to time in respect thereof; provided, however, that the failure by the
Liquidity Provider to maintain such account or accounts shall not affect the
obligations of the Borrower in respect of Advances.
Section 2.09 Payments from Available Funds Only. All payments to
be made by the Borrower under this Agreement shall be made only from amounts
received by it that constitute Scheduled Payments or Special Payments and only
to the extent that the Borrower shall have sufficient income or proceeds
therefrom to enable the Borrower to make payments in accordance with the terms
hereof after giving effect to the priority of payments provisions set forth in
the Intercreditor Agreement. The Liquidity Provider agrees that it will look
solely to such amounts to the extent available for distribution to it as
provided in the Intercreditor Agreement and this Agreement and that the
Borrower, in its individual capacity, is not personally liable to it for any
amounts payable or liability under this Agreement except as expressly provided
in this Agreement, the Intercreditor Agreement or any Participation Agreement.
Amounts on deposit in the Class A Cash Account shall be available to make
payments only to the extent and for the purposes expressly contemplated in
Section 3.6(f) of the Intercreditor Agreement.
ARTICLE III
OBLIGATIONS OF THE BORROWER
Section 3.01 Increased Costs. If the Liquidity Provider shall
determine that (a) any change after the date hereof in any law or regulation
or in the interpretation thereof by any court or administrative or
governmental authority charged with the administration thereof or in the
compliance by the Liquidity Provider (or its head office) with any applicable
direction, request or requirement (whether or not having the force of law) of
any central bank or competent governmental or other authority shall either (i)
impose, modify or deem applicable any reserve, special deposit or similar
requirement against assets held by, or deposits in or for the account of, or
loans made by, the Liquidity Provider, or (ii) impose on the Liquidity
Provider any other condition regarding this Agreement or any Advance, or (iii)
change the basis of taxation of any amounts payable to the Liquidity Provider
(other than Taxes imposed on the overall net or gross income of the Liquidity
Provider) and (b) the result of any event referred to in the preceding clause
(i), (ii) or (iii) shall be to increase the cost to the Liquidity Provider of
issuing or maintaining its commitment or funding or maintaining Advances
(which increase in cost shall be determined by the Liquidity Provider's
reasonable allocations of the aggregate of such cost increases resulting from
such event), or to reduce the amount of any sum received or receivable by the
Liquidity Provider under this Agreement with respect thereto, then, upon
demand by the Liquidity Provider (such demand to be made not later than 60
days after a Responsible Officer of the Liquidity Provider obtains actual
knowledge of any event referred to in clause (i), (ii) or (iii) above), the
Borrower shall pay, or cause to be paid, to the Liquidity Provider, from time
to time as specified by the Liquidity Provider, additional amounts which shall
be sufficient to compensate the Liquidity Provider for such increased cost or
reduction; provided that if such demand for payment is made after such 60-day
period, the Borrower shall be obligated to pay such additional amounts only
with respect to such increased cost or reduction actually incurred or effected
on or after the 60th day prior to the date of such demand. A certificate as
to such increased cost or reduction (which shall set forth the basis for such
increased cost or reduction) incurred by the Liquidity Provider as a result of
any event mentioned in clause (i), (ii) and (iii) above, prepared in
reasonable detail and submitted by the Liquidity Provider to the Borrower,
shall be conclusive, absent manifest error, as to the amount thereof.
The Liquidity Provider agrees to use reasonable efforts
(consistent with its internal policy and legal and regulatory restrictions) to
change the jurisdiction of its Lending Office if making such change would
avoid the need for, or reduce the amount of, any amount payable under this
Section 3.01 that may thereafter accrue and would not, in the reasonable
judgment of the Liquidity Provider, be otherwise disadvantageous in any
material respect to the Liquidity Provider.
Section 3.02 Capital Adequacy. If the Liquidity Provider shall
determine that the adoption of any applicable law, rule or regulation
regarding capital adequacy, or any change therein, or any change in the
interpretation or administration thereof by any governmental authority,
central bank or comparable agency charged with the interpretation or
administration thereof, or compliance by the Liquidity Provider (or its head
office) with any request or directive regarding capital adequacy (whether or
not having the force of law) of any such authority, central bank or comparable
agency, in each case after the date hereof, has the effect of reducing the
rate of return on the Liquidity Provider's capital as a consequence of issuing
or maintaining its commitment hereunder or its funding or maintaining Advances
to a level below that which the Liquidity Provider could have achieved but for
such adoption, change or compliance (taking into consideration the Liquidity
Provider's policies with respect to capital adequacy) by an amount deemed by
the Liquidity Provider to be material, then, upon demand by the Liquidity
Provider, the Borrower shall pay to the Liquidity Provider, from time to time
as specified by the Liquidity Provider, additional amounts which shall be
sufficient to compensate the Liquidity Provider for such reduction in respect
of issuing or maintaining its commitment hereunder or its funding or
maintaining Advances. A certificate as to such additional amount describing
the event which has the effect of reducing the rate of return on the Liquidity
Provider's capital, prepared in reasonable detail and submitted by the
Liquidity Provider to the Borrower, shall be conclusive, absent manifest
error, as to the amount thereof.
The Liquidity Provider agrees to use reasonable efforts
(consistent with its internal policy and legal and regulatory restrictions) to
change the jurisdiction of its Lending Office if making such change would
avoid the need for, or reduce the amount of, any amount payable under this
Section 3.02 that may thereafter accrue and would not, in the reasonable
judgment of the Liquidity Provider, be otherwise disadvantageous in any
material respect to the Liquidity Provider.
Section 3.03 Payments Free of Deductions. All payments made by
the Borrower under this Agreement shall be made free and clear of, and
without reduction for or on account of, any present or future stamp or
other taxes, levies, imposts, duties, charges, fees, deductions,
withholdings, restrictions or conditions of any nature whatsoever now or
hereafter imposed, levied, collected, withheld or assessed, excluding any
Taxes imposed on the overall net income of the Liquidity Provider and
excluding United States federal income tax withholding to the extent such
withholding is, or would be, actually imposed upon payments to the
Liquidity Provider as of the date of this Agreement (such non-excluded
taxes being referred to herein, collectively, as "Non-Excluded Taxes" and,
individually, as a "Non-Excluded Tax"). If any Non-Excluded Taxes are
required to be withheld from any amounts payable to the Liquidity Provider
under this Agreement, the amounts so payable to the Liquidity Provider
shall be increased to the extent necessary to yield to the Liquidity
Provider (after payment of all Non-Excluded Taxes and taxes imposed on the
receipt of such increase) interest or any other such amounts payable under
this Agreement at the rates or in the amounts specified in this Agreement.
Whenever any Non-Excluded Tax is payable by the Borrower, promptly
thereafter the Borrower shall send the Liquidity Provider certified copies
of tax receipts evidencing such payment by the Borrower. The Liquidity
Provider agrees to provide to the Borrower on or prior to the Effective
Date, and from time to time thereafter after the occurrence of any event
requiring a change in the most recent form previously delivered by it (and
prior to the immediately following due date of any payment by the Borrower
hereunder), to the extent that the Liquidity Provider is legally entitled
to do so, two original Internal Revenue Service Form 1001 or 4224, as
appropriate, or any successor or other form prescribed by the Internal
Revenue Service, certifying that the Liquidity Provider is completely
exempt from United States withholding tax on payments pursuant to this
Agreement.
The Liquidity Provider agrees to use reasonable efforts
(consistent with its internal policy and legal and regulatory restrictions) to
change the jurisdiction of its Lending Office if making such change would
avoid the need for, or reduce the amount of, any amount payable under this
Section 3.03 that may thereafter accrue and would not, in the reasonable
judgment of the Liquidity Provider, be otherwise disadvantageous in any
material respect to the Liquidity Provider.
Section 3.04 Payments. The Borrower shall make or cause to be
made each payment to the Liquidity Provider under this Agreement so as to
cause the same to be received by the Liquidity Provider not later than 1:00
P.M. (New York City time) on the day when due. The Borrower shall make all
such payments in lawful money of the United States of America, to the
Liquidity Provider in immediately available funds, by wire transfer to The
Bank of New York, One Wall Street, New York, New York 10286, ABA No.
021-000-018, for the account of Kredietbank New York, Account No. 802-3015618,
Attention: Loan Administration (referencing Federal Express Corporation
Liquidity Facility).
Section 3.05 Computations. All computations of interest based on
the Base Rate shall be made on the basis of a year of 365 or 366 days, as the
case may be, and all computations of (x) interest based on the LIBOR Rate and
(y) fees payable to the Liquidity Provider shall be made on the basis of a
year of 360 days, in each case for the actual number of days (including the
first day but excluding the last day) occurring in the period for which such
interest is payable.
Section 3.06 Payment on Non-Business Days. Whenever any payment
to be made hereunder (other than a payment on LIBOR Advances) becomes due and
payable on a day other than a Business Day, such payment shall be made on the
next succeeding Business Day and interest thereon shall be payable at the then
applicable rate during such extension. If any payment on a LIBOR Advance
becomes due and payable on a day other than a Business Day, the maturity
thereof shall be extended to the next succeeding Business Day unless the
result of such extension would be to extend such payment into another calendar
month, in which event such payment shall be made on the immediately preceding
Business Day.
Section 3.07 Interest. (a) The Borrower shall pay, or shall
cause to be paid, interest on (i) the unpaid principal amount of each Advance
from and including the date of such Advance (or, in the case of an Applied
Downgrade Advance, from and including the date on which the amount thereof was
withdrawn from the Class A Cash Account to pay interest on the Class A Pass
Through Certificates) to but excluding the date such principal amount shall be
paid in full and (ii) any other amount due hereunder (whether fees,
commissions, expenses or other amounts or, to the extent permitted by law,
installments of interest on Advances or any such other amount) which is not
paid when due (whether at stated maturity, by acceleration or otherwise) from
and including the due date thereof to but excluding the date such amount is
paid in full, in each such case, at a fluctuating interest rate per annum for
each day equal to the Applicable Liquidity Rate for such Advance or such other
amount as in effect for such day, but in no event at a rate per annum greater
than the maximum rate permitted by applicable law; provided, however, that, if
at any time the otherwise applicable interest rate as set forth in this
Section 3.07 shall exceed the maximum rate permitted by applicable law, then
any subsequent reduction in such interest rate will not reduce the rate of
interest payable pursuant to this Section 3.07 below the maximum rate
permitted by applicable law until the total amount of interest accrued equals
the amount of interest that would have accrued if such otherwise applicable
interest rate as set forth in this Section 3.07 had at all times been in
effect. Nothing contained in this Section 3.07 shall require the Borrower to
pay any amount under this Section 3.07 other than to the extent the Borrower
shall have funds available therefor.
(b) Each Advance will be either a Base Rate Advance or a LIBOR
Advance as provided in this Section. Each such Advance will be a Base Rate
Advance for the period from the date of its borrowing to (but excluding) the
third Business Day following the Liquidity Provider's receipt of the Notice of
Borrowing for such Advance. Thereafter, such Advance shall be a LIBOR
Advance; provided that the Final Advance shall, until repaid in full, be a
Base Rate Advance and the Borrower may not convert the Final Advance into a
LIBOR Advance.
(c) Each LIBOR Advance shall bear interest during each Interest
Period at a per annum rate equal to the LIBOR Rate for such Interest Period
plus the Applicable Margin for such LIBOR Advance, payable in arrears on the
last day of such Interest Period and, in the event of the payment of principal
of such LIBOR Advance on a day other than such last day, on the date of such
payment (to the extent of interest accrued on the amount of principal repaid).
(d) Each Base Rate Advance shall bear interest at a per annum
rate equal to the Base Rate plus the Applicable Margin for such Base Rate
Advance, payable in arrears on each Regular Distribution Date and, in the
event of the payment of principal of such Base Rate Advance on a day other
than a Regular Distribution Date, on the date of such payment (to the extent
of interest accrued on the amount of principal repaid).
(e) [Intentionally Omitted]
(f) Each amount not paid when due hereunder (whether fees,
commissions, expenses or other amounts or, to the extent permitted by
applicable law, installments of interest on Advances) shall bear interest at
the Base Rate.
(g) Each change in the Base Rate shall become effective
immediately.
Section 3.08 Replacement of Borrower. Subject to Section
5.02(b), from time to time, upon the effective date and time specified in a
written and completed Notice of Replacement Borrower in substantially the form
of Annex III attached hereto (a "Notice of Replacement Borrower") delivered to
the Liquidity Provider by the then Borrower, the successor Borrower designated
therein shall be substituted for as the Borrower for all purposes hereunder.
Section 3.09 Funding Loss Indemnification. The Borrower shall
pay to the Liquidity Provider, upon the request of the Liquidity Provider,
such amount or amounts as shall be sufficient (in the reasonable opinion of
the Liquidity Provider) to compensate it for any loss, cost, or expense
incurred as a result of:
(a) Any payment or prepayment of a LIBOR Advance on a date other
than the last day of the Interest Period for such Advance;
(b) Any failure by the Borrower to borrow or convert, as the
case may be, a LIBOR Advance on the date for borrowing or conversion, as
the case may be, specified in the relevant notice under Section 2.02 or
3.07; or
(c) Any conversion of a LIBOR Advance to a Base Rate Advance
other than on the last day of the Interest Period for such Advance.
Section 3.10 Illegality. Notwithstanding any other provision in
this Agreement, if any change in any applicable law, rule or regulation, or
any change in the interpretation or administration thereof by any governmental
authority, central bank or comparable agency charged with the interpretation
or administration thereof, or compliance by the Liquidity Provider (or its
Lending Office) with any request or directive (whether or not having the force
of law) of any such authority, central bank or comparable agency shall make it
unlawful or impossible for the Liquidity Provider (or its Lending Office) to
maintain or fund its LIBOR Advances, then upon notice to the Borrower by the
Liquidity Provider, the outstanding principal amount of the LIBOR Advances
shall be converted to Base Rate Advances (a) immediately upon demand of the
Liquidity Provider, if such change or compliance with such request, in the
judgment of the Liquidity Provider, requires immediate repayment; or (b) at
the expiration of the last Interest Period to expire before the effective date
of any such change or request. In the event any change of the nature
described in the preceding sentence shall make it unlawful or impossible for
the Liquidity Provider (or its Lending Office) to maintain or fund its Base
Rate Advances, the Liquidity Provider shall have the right to cause a
Replacement Liquidity Facility to be substituted for this Agreement, subject
to (i) the satisfaction of the conditions precedent to the effectiveness of,
and the other provisions regarding, a Replacement Liquidity Facility set forth
in Section 3.6(e) of the Intercreditor Agreement and (ii) such Replacement
Liquidity Facility and Replacement Liquidity Provider being reasonably
acceptable to Federal Express Corporation.
ARTICLE IV
CONDITIONS PRECEDENT
Section 4.01 Conditions Precedent to Effectiveness of Section
2.01. Section 2.01 of this Agreement shall become effective on and as of the
first date (the "Effective Date") on which the following conditions precedent
have been satisfied or waived:
(a) The Liquidity Provider shall have received on or before the
Closing Date each of the following, each dated such date (except for
those documents delivered pursuant to paragraphs (v) and (vii) of this
Section 4.01(a)), and each in form and substance satisfactory to the
Liquidity Provider:
(i) This Agreement duly executed on behalf of the
Borrower;
(ii) The Intercreditor Agreement duly executed on behalf of
each of the parties thereto;
(iii) Counterparts (or certified copies thereof) of each of
the Operative Agreements (other than this Agreement and the
Intercreditor Agreement) which, when taken together, bear the
signatures of all of the respective parties thereto and which
are in full force and effect in accordance with their
respective terms;
(iv) A copy of the Prospectus and specimen copies of the
Class A Pass Through Certificates;
(v) Evidence that, on the Effective Date, the Class A Pass
Through Certificates, the Class B Pass Through Certificates and
the Class C Pass Through Certificates will receive long-term
credit ratings from Moody's of not lower than Aa3, A1 and Baa1,
respectively, and from Standard & Poor's of not lower than AAA, AA
and BBB+, respectively;
(vi) An executed or certified copy of each document,
instrument, certificate and opinion delivered pursuant to the
Class A Supplement, the Intercreditor Agreement, the Participation
Agreements and the other Operative Agreements (together with, in
the case of each such opinion (unless such opinion is addressed to
the Liquidity Provider), other than the opinion of counsel for the
Underwriters, a letter from the counsel rendering such opinion to
the effect that the Liquidity Provider is entitled to rely on such
opinion as if it were addressed to the Liquidity Provider);
(vii) Evidence that there shall have been made and shall be
in full force and effect, all filings, recordings and/or
registrations, and there shall have been given or taken any notice
or other similar action as may be reasonably necessary or, to the
extent reasonably requested by the Liquidity Provider, reasonably
advisable, in order to establish, perfect, protect and preserve
the right, title and interest, remedies, powers, privileges, liens
and security interests of, or for the benefit of, the Pass Through
Trustee and the Liquidity Provider created by the Operative
Agreements;
(viii) Copies of the appraisals attached as exhibits to the
Prospectus; and
(ix) A letter from Federal Express Corporation agreeing to
provide to the Liquidity Provider the periodic financial reports
referred to in Section 4.03 of the Pass Through Agreements; and
(x) Such other documents, instruments, opinions and
approvals (and, if requested by the Liquidity Provider, certified
duplicates or executed copies thereof) as the Liquidity Provider
shall have reasonably requested.
(b) The following statements shall be true and shall be deemed
to have been represented by each party (other than clause (ii) below,
which shall be deemed to have been represented only by Federal Express
Corporation) on and as of the Effective Date:
(i) The representations and warranties of such Person
contained in each Participation Agreement are true and correct on
and as of the Effective Date as though made on and as of the
Effective Date; and
(ii) No event has occurred and is continuing, or would
result from the entering into of this Agreement or the making of
any Advance, which constitutes a Liquidity Event of Default.
(c) The Liquidity Provider shall have received payment in full
of all fees and other sums required to be paid to or for the account of
the Liquidity Provider on or prior to the Effective Date.
(d) All conditions precedent to the issuance of the Pass Through
Certificates under the Pass Through Agreements shall have been
satisfied, all conditions precedent to the effectiveness of the other
Liquidity Facilities shall have been satisfied, and all conditions
precedent to the purchase of the Pass Through Certificates by the
Underwriters under the Underwriting Agreement shall have been satisfied
(except for any of such conditions precedent under the Underwriting
Agreement that shall have been waived by the Underwriters).
(e) The Borrower shall have received a certificate, dated the
date hereof, signed by a duly authorized representative of the Liquidity
Provider, certifying that all conditions precedent to the effectiveness
of Section 2.01 have been satisfied or waived (other than this Section
4.01(e)).
Section 4.02 Conditions Precedent to Borrowing. The obligation
of the Liquidity Provider to make an Advance on the occasion of each Borrowing
shall be subject to the conditions precedent that the Effective Date shall
have occurred and, except in the case of a Final Advance, prior to the date of
such Borrowing, the Borrower shall have delivered a Notice of Borrowing which
conforms to the terms and conditions of this Agreement and has been completed
as may be required by the relevant form of the Notice of Borrowing for the
type of Advance requested.
ARTICLE V
COVENANTS
Section 5.01 Affirmative Covenants of the Borrower. So long as
any Advance shall remain unpaid or the Liquidity Provider shall have any
Commitment hereunder or the Borrower shall have any obligation to pay any
amount to the Liquidity Provider hereunder, the Borrower will, unless the
Liquidity Provider shall otherwise consent in writing:
(a) Performance of This and Other Agreements. Punctually pay or
cause to be paid all amounts payable by it under this Agreement and the
other Operative Agreements and observe and perform in all material
respects the conditions, covenants and requirements applicable to it
contained in this Agreement and the other Operative Agreements.
(b) Reporting Requirements. Furnish to the Liquidity Provider
with reasonable promptness, such other information and data with respect
to the transactions contemplated by the Operative Agreements as from
time to time may be reasonably requested by the Liquidity Provider; and
permit the Liquidity Provider, upon reasonable notice, to inspect the
Borrower's books and records with respect to such transactions and to
meet with officers and employees of the Borrower to discuss such
transactions.
Section 5.02 Negative Covenants of the Borrower. So long as any
Advance shall remain unpaid or the Liquidity Provider shall have any
Commitment hereunder or the Borrower shall have any obligation to pay any
amount to the Liquidity Provider hereunder, the Borrower will not, without the
written consent of the Liquidity Provider (such consent not to be unreasonably
withheld):
(a) Amendments. Modify, amend or supplement, or give any
consent to any modification, amendment or supplement or make any waiver
with respect to, any provision of the Pass Through Agreements, except
for any supplemental agreement to the Pass Through Agreements provided
for in Section 11.01 thereof.
(b) Borrower. Appoint or permit or suffer to be appointed any
successor Borrower.
ARTICLE VI
FINAL ADVANCE
Section 6.01 Final Advance. If (a) both (i) a Triggering Event
shall have occurred and be continuing and (ii) a Performing Note Deficiency
exists or (b) a Liquidity Event of Default shall have occurred and be
continuing, the Liquidity Provider may, in its discretion, make a Final
Advance whereupon (i) the Liquidity Provider shall have no further obligation
to make Advances hereunder, (ii) all other outstanding Advances shall be
automatically converted into Final Advances for purposes of determining the
Applicable Liquidity Rate for interest payable thereon, and (iii) subject to
Sections 2.07 and 2.09, all Advances, any accrued interest thereon and any
other amounts outstanding hereunder shall become immediately due and payable
to the Liquidity Provider.
ARTICLE VII
MISCELLANEOUS
Section 7.01 Amendments, Etc. No amendment or waiver of any
provision of this Agreement, nor consent to any departure by the Borrower
therefrom, shall in any event be effective unless the same shall be in writing
and signed by the Liquidity Provider, and, in the case of an amendment, the
Borrower, and then such waiver or consent shall be effective only in the
specific instance and for the specific purpose for which given.
Section 7.02 Notices, Etc. Except as otherwise expressly
provided herein, all notices and other communications provided for hereunder
shall be in writing (including telecopier and mailed or delivered or sent by
telecopier):
Borrower: First Security Bank, National Association
79 South Main Street
Salt Lake City, UT 84111
Attention: Corporate Trust Services
Telephone: (801) 246-5630
Telecopy: (801) 246-5053
Liquidity
Provider: Kredietbank N.V.
New York Branch
125 West 55th Street,
New York, New York 10019
Attention: General Manager
Telephone: (212) 541-0600
Telecopy: (212) 956-5580
or, as to each of the foregoing, at such other address as shall be designated
by such Person in a written notice to the others. All such notices and
communications shall be effective (i) if given by telecopier, when transmitted
to the telecopier number specified above, (ii) if given by mail, when
deposited in the mails addressed as specified above, and (iii) if given by
other means, when delivered at the address specified above, except that
written notices to the Liquidity Provider pursuant to the provisions of
Articles II and III hereof shall not be effective until received by the
Liquidity Provider. A copy of all notices delivered hereunder to either party
shall in addition be delivered to each of the parties to the Participation
Agreements at their respective addresses set forth therein.
Section 7.03 No Waiver; Remedies. No failure on the part of the
Liquidity Provider to exercise, and no delay in exercising, any right under
this Agreement shall operate as a waiver thereof; nor shall any single or
partial exercise of any right under this Agreement preclude any other or
further exercise thereof or the exercise of any other right. The remedies
herein provided are cumulative and not exclusive of any remedies provided by
law.
Section 7.04 Further Assurances. The Borrower agrees to do, upon
request, such further acts and things and to execute and deliver to the
Liquidity Provider such additional assignments, agreements, powers and
instruments as the Liquidity Provider may reasonably require or deem advisable
to carry into effect the purposes of this Agreement and the other Operative
Agreements or to better assure and confirm unto the Liquidity Provider its
rights, powers and remedies hereunder and under the other Operative
Agreements.
Section 7.05 Indemnification; Survival of Certain Provisions.
The Liquidity Provider shall be indemnified hereunder to the extent and in the
manner described in Articles 8 and 9 of the Participation Agreements. In
addition, the Borrower agrees to indemnify, protect, defend and hold harmless
the Liquidity Provider from, against and in respect of, and shall pay on
demand, all Expenses of any kind or nature whatsoever, whether arising before,
on or after the date hereof, that may be imposed, incurred by or asserted
against any Liquidity Indemnitee, in any way relating to, resulting from, or
arising out of or in connection with, this Agreement, the Intercreditor
Agreement or the Participation Agreements; provided, however, that the
Borrower shall not be required to indemnify, protect, defend and hold harmless
any Liquidity Indemnitee in respect of any Expense of such Liquidity
Indemnitee (i) to the extent such Expense is attributable to the gross
negligence or willful misconduct of such Liquidity Indemnitee or any Related
Indemnitee, (ii) that is ordinary and usual operating overhead expense or
(iii) to the extent such Expense is attributable to the failure by such
Liquidity Indemnitee or its Related Indemnitee to perform or observe any
agreement, covenant or condition on its part to be performed or observed in
any Operative Agreement. The indemnities contained in Articles 8 and 9 of the
Participation Agreements, and the provisions of Sections 3.01, 3.02, 3.03,
7.05 and 7.07, shall survive the termination of this Agreement.
Section 7.06 Liability of the Liquidity Provider. (a) Neither
the Liquidity Provider nor any of its officers or directors shall be liable or
responsible for: (i) the use which may be made of the Advances or any acts or
omissions of the Borrower or any beneficiary or transferee in connection
therewith; (ii) the validity, sufficiency or genuineness of documents, or of
any endorsement thereon, even if such documents should prove to be in any or
all respects invalid, insufficient, fraudulent or forged; or (iii) the making
of Advances by the Liquidity Provider against delivery of a Notice of
Borrowing and other documents which do not comply with the terms hereof;
provided, however, that the Borrower shall have a claim against the Liquidity
Provider, and the Liquidity Provider shall be liable to the Borrower, to the
extent of any damages suffered by the Borrower which were the result of (A)
the Liquidity Provider's willful misconduct or negligence in determining
whether documents presented hereunder comply with the terms hereof, or (B) any
breach by the Liquidity Provider of any of the terms of this Agreement,
including, but not limited to, the Liquidity Provider's failure to make lawful
payment hereunder after the delivery to it by the Borrower of a Notice of
Borrowing strictly complying with the terms and conditions hereof.
(b) The Liquidity Provider shall not be liable or responsible in
any respect for (i) any error, omission, interruption or delay in
transmission, dispatch or delivery of any message or advice, however
transmitted, in connection with this Agreement or any Notice of Borrowing
delivered hereunder, or (ii) any action, inaction or omission which may be
taken by it in good faith, absent willful misconduct or negligence (in which
event the extent of the Liquidity Provider's potential liability to the
Borrower shall be limited as set forth in the immediately preceding
paragraph), in connection with this Agreement or any Notice of Borrowing.
Section 7.07 Costs, Expenses and Taxes. The Borrower agrees to
pay, or cause to be paid (A) on the Effective Date and on such later date or
dates on which the Liquidity Provider shall make demand, all reasonable
out-of-pocket costs and expenses of the Liquidity Provider in connection with
the preparation, negotiation, execution, delivery, filing and recording of
this Agreement, any other Operative Agreement and any other documents which
may be delivered in connection with this Agreement, including, without
limitation, the reasonable fees and expenses of outside counsel for the
Liquidity Provider and (B) on demand, all reasonable costs and expenses of the
Liquidity Provider (including reasonable counsel fees and expenses) in
connection with (i) the enforcement of this Agreement or any other Operative
Agreement, (ii) the modification or amendment of, or supplement to, this
Agreement or any other Operative Agreement or such other documents which
may be delivered in connection herewith or therewith (whether or not the
same shall become effective) or (iii) any action or proceeding relating to
any order, injunction, or other process or decree restraining or seeking to
restrain the Liquidity Provider from paying any amount under this
Agreement, the Intercreditor Agreement or any other Operative Agreement or
otherwise affecting the application of funds in the Cash Accounts. In
addition, the Borrower shall pay any and all recording, stamp and other
similar taxes and fees payable or determined to be payable in connection
with the execution, delivery, filing and recording of this Agreement, any
other Operative Agreement and such other documents, and agrees to save the
Liquidity Provider harmless from and against any and all liabilities with
respect to or resulting from any delay in paying or omission to pay such
taxes or fees.
Section 7.08 Binding Effect; Participations. (a) This Agreement
shall be binding upon and inure to the benefit of the Borrower and the
Liquidity Provider and their respective successors and assigns, except that
neither the Liquidity Provider (except as otherwise provided in this Section
7.08) nor the Borrower shall have the right to assign its rights hereunder or
any interest herein without the prior written consent of the other party,
subject to the requirement of Section 7.08(b). The Liquidity Provider may
grant participations herein or in any of its rights or security hereunder and
under the other Operative Agreements to such Persons as the Liquidity Provider
may in its sole discretion select, subject to the requirement of Section
7.08(b). No such participation by the Liquidity Provider, however, will
relieve the Liquidity Provider of its obligations hereunder. In connection
with any participation or any proposed participation, the Liquidity Provider
may disclose to the participant or the proposed participant any information
that the Borrower is required to deliver or to disclose to the Liquidity
Provider pursuant to this Agreement. The Borrower acknowledges and agrees
that the Liquidity Provider's source of funds may derive in part from its
participants. Accordingly, references in this Agreement and the other
Operative Agreements to determinations, reserve and capital adequacy
requirements, increased costs, reduced receipts and the like as they pertain
to the Liquidity Provider shall be deemed also to include those of each of its
participants (subject, in each case, to the maximum amount that would have
been incurred by or attributable to the Liquidity Provider directly if the
Liquidity Provider had not participated the interest).
(b) If, pursuant to subsection (a) above, the Liquidity Provider
sells any participation to any bank or other entity (each, a "Participant"),
then, concurrently with the effectiveness of such participation, the
Participant shall (i) represent to the Liquidity Provider (for the benefit of
the Liquidity Provider and the Borrower) either (A) that it is incorporated
under the laws of the United States or a state thereof or (B) that under
applicable law and treaties, no taxes will be required to be withheld by the
Borrower or the Liquidity Provider with respect to any payments to be made to
such Participant in respect of this Agreement, (ii) furnish to the Liquidity
Provider and the Borrower either (x) a statement that it is incorporated under
the laws of the United States or a state thereof or (y) if it is not so
incorporated, two copies of a properly completed United States Internal
Revenue Service Form 4224 or Form 1001, as appropriate, or other applicable
form, certificate or document prescribed by the Internal Revenue Service
certifying, in each case, such Participant's entitlement to a complete
exemption from United States federal withholding tax in respect to any and all
payments to be made hereunder, and (iii) agree (for the benefit of the
Liquidity Provider and the Borrower) to provide the Liquidity Provider and the
Borrower a new Form 4224 or Form 1001, as appropriate, (A) on or before the
date that any such form expires or becomes obsolete or (B) after the
occurrence of any event requiring a change in the most recent form previously
delivered by it and prior to the immediately following due date of any payment
by the Borrower hereunder, certifying in the case of a Form 1001 or Form 4224
that such Participant is entitled to a complete exemption from United States
federal withholding tax on payments under this Agreement. Unless the Borrower
has received forms or other documents reasonably satisfactory to it indicating
that payments hereunder are not subject to United States federal withholding
tax, the Borrower will withhold taxes as required by law from such payments at
the applicable statutory rate without any obligation to gross-up or indemnify
pursuant to Section 3.03.
(c) Notwithstanding the other provisions of this Section 7.08,
the Liquidity Provider may assign and pledge all or any portion of the
Advances owing to it to any Federal Reserve Bank or the United States Treasury
as collateral security pursuant to Regulation A of the Board of Governors of
the Federal Reserve System and any Operating Circular issued by such Federal
Reserve Bank, provided that any payment in respect of such assigned Advances
made by the Borrower to the Liquidity Provider in accordance with the terms of
this Agreement shall satisfy the Borrower's obligations hereunder in respect
of such assigned Advance to the extent of such payment. No such assignment
shall release the Liquidity Provider from its obligations hereunder.
Section 7.09 Severability. Any provision of this Agreement which
is prohibited, unenforceable or not authorized in any jurisdiction shall, as
to such jurisdiction, be ineffective to the extent of such prohibition,
unenforceability or nonauthorization without invalidating the remaining
provisions hereof or affecting the validity, enforceability or legality of
such provision in any other jurisdiction.
Section 7.10 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
Section 7.11 Submission to Jurisdiction; Waiver of Jury Trial.
(a) Each of the parties hereto hereby irrevocably and unconditionally:
(i) submits for itself and its property in any legal action or
proceeding relating to this Agreement or any other Operative Agreement,
or for recognition and enforcement of any judgment in respect hereof or
thereof, to the nonexclusive general jurisdiction of the courts of
the State of New York, the courts of the United States of America for
the Southern District of New York, and the appellate courts from any
thereof;
(ii) consents that any such action or proceeding may be brought
in such courts, and waives any objection that it may now or hereafter
have to the venue of any such action or proceeding in any such court or
that such action or proceeding was brought in an inconvenient court and
agrees not to plead or claim the same;
(iii) if such party does not maintain an office for the
transaction of its business in New York, agrees that service of process
in any such action or proceeding may be effected by mailing a copy
thereof by registered or certified mail (or any substantially similar
form of mail), postage prepaid, to each party hereto at its address set
forth in Section 7.02, or at such other address of which the Liquidity
Provider shall have been notified pursuant thereto; and
(iv) agrees that nothing herein shall affect the right to effect
service of process in any other manner permitted by law or shall limit
the right to sue in any other jurisdiction.
(b) THE BORROWER AND THE LIQUIDITY PROVIDER EACH HEREBY AGREE TO
WAIVE THEIR RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION
BASED UPON OR ARISING OUT OF THIS AGREEMENT OR ANY DEALINGS BETWEEN THEM
RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT AND THE RELATIONSHIP THAT IS
BEING ESTABLISHED, including, without limitation, contract claims, tort
claims, breach of duty claims and all other common law and statutory claims.
The Borrower and the Liquidity Provider each warrant and represent that it has
reviewed this waiver with its legal counsel, and that it knowingly and
voluntarily waives its jury trial rights following consultation with such
legal counsel. THIS WAIVER CANNOT BE MODIFIED ORALLY.
Section 7.12 Execution in Counterparts. This Agreement may be
executed in any number of counterparts and by different parties hereto on
separate counterparts, each of which counterparts, when so executed and
delivered, shall be deemed to be an original and all of which counterparts,
taken together, shall constitute but one and the same Agreement.
Section 7.13 Entirety. This Agreement and the other Operative
Agreements constitute the entire agreement of the parties hereto with respect
to the subject matter hereof and thereof and supersede all prior
understandings and agreements of such parties.
Section 7.14 Headings; Section References. Section headings in
this Agreement are included herein for convenience of reference only and shall
not constitute a part of this Agreement for any other purpose. Unless the
context otherwise requires or otherwise indicated herein, all Section
references in this Agreement are references to Sections hereof.
Section 7.15 LIQUIDITY PROVIDER'S OBLIGATION TO MAKE ADVANCES.
EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE OBLIGATIONS OF THE
LIQUIDITY PROVIDER TO MAKE ADVANCES HEREUNDER, AND THE BORROWER'S RIGHTS TO
DELIVER NOTICES OF BORROWING REQUESTING THE MAKING OF ADVANCES HEREUNDER,
SHALL BE UNCONDITIONAL AND IRREVOCABLE, AND SHALL BE PAID OR PERFORMED, IN
EACH CASE STRICTLY IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be duly executed and delivered by their respective officers thereunto duly
authorized as of the date first set forth above.
FIRST SECURITY BANK, NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Subordination Agent, as
Borrower
By:
------------------------------------
Name:
Title:
KREDIETBANK N.V.,
NEW YORK BRANCH,
as Liquidity Provider
By:
------------------------------------
Name:
Title:
By:
------------------------------------
Name:
Title:
Annex I to Irrevocable
Revolving Credit Agreement
INTEREST ADVANCE NOTICE OF BORROWING
First Security Bank, National Association, acting not in its
individual capacity but solely as Subordination Agent, as borrower (the
"Borrower"), hereby certifies to KREDIETBANK N.V., acting through its New York
Branch (the "Liquidity Provider"), with reference to the Irrevocable Revolving
Credit Agreement Class A Pass Through Certificates dated as of May 1, 1997,
between the Borrower and the Liquidity Provider (the "Liquidity Agreement";
the terms defined therein and not otherwise defined herein being used
herein as therein defined or referenced), that:
(1) The Borrower is the Subordination Agent under the
Intercreditor Agreement.
(2) The Borrower is delivering this Notice of Borrowing for the
making of an Interest Advance by the Liquidity Provider to be used for
the payment of interest on the Class A Pass Through Certificates which
was payable on the Distribution Date falling on __________ in accordance
with the terms and provisions of the Class A Supplement and the Class A
Pass Through Certificates and has not been paid pursuant to clause
fourth of Section 3.2 of the Intercreditor Agreement or clause sixth of
Section 3.3 of the Intercreditor Agreement, which Advance is requested
to be made on ___________________.
(3) The amount of the Interest Advance requested hereby (i) is
$________,
to be applied in respect of the payment of interest which was due and payable
on the Class A Pass Through Certificates on such Distribution Date, (ii) does
not include any amount with respect to the payment of principal of, or premium
on, the Class A Pass Through Certificates, the Class B Pass Through
Certificates or the Class C Pass Through Certificates, or interest on the
Class B Pass Through Certificates or the Class C Pass Through Certificates,
(iii) was computed in accordance with the provisions of the Class A Pass
Through Certificates, the Class A Supplement and the Intercreditor Agreement
(a copy of which computation is attached hereto as Schedule I), (iv) does not
exceed the Available Commitment on the date hereof, and (v) has not been and
is not the subject of a prior or contemporaneous Notice of Borrowing.
(4) Upon receipt by or on behalf of the Borrower of the amount
requested hereby, (a) the Borrower will apply the same in accordance
with the terms of Sections 3.2 or 3.3 of the Intercreditor Agreement, as
the case may be, (b) no portion of such amount shall be applied by the
Borrower for any other purpose and (c) no portion of such amount until
so applied shall be commingled with other funds held by the Borrower.
(5) The Borrower hereby requests that the Advance requested
hereby be a Base Rate Advance and that such Base Rate Advance be
converted into a LIBOR Rate Advance on the third Business Day following
your receipt of this notice.
The Borrower hereby acknowledges that, pursuant to the Liquidity
Agreement, the making of the Interest Advance as requested by this Notice of
Borrowing shall automatically reduce, subject to reinstatement in accordance
with the terms of the Liquidity Agreement, the Available Commitment by an
amount equal to the amount of the Interest Advance requested to be made hereby
as set forth in clause (i) of paragraph (3) of this Certificate and such
reduction shall automatically result in corresponding reductions in the
amounts available to be borrowed pursuant to a subsequent Advance.
IN WITNESS WHEREOF, the Borrower has executed and delivered this
Notice of Borrowing as of the __ day of ______________, ____.
FIRST SECURITY BANK, NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Subordination Agent, as
Borrower
By:
------------------------------------
Name:
Title:
SCHEDULE I TO INTEREST ADVANCE NOTICE OF BORROWING
[Insert Copy of Computations in accordance with
Interest Advance Notice of Borrowing]
Annex II to Irrevocable
Revolving Credit Agreement
DOWNGRADE ADVANCE NOTICE OF BORROWING
FIRST SECURITY BANK, NATIONAL ASSOCIATION, acting not in its
individual capacity but solely as Subordination Agent, as borrower (the
"Borrower"), hereby certifies to KREDIETBANK N.V., acting through its New
York Branch (the "Liquidity Provider"), with reference to the Irrevocable
Revolving Credit Agreement Class A Pass Through Certificates dated as of May
1, 1997, between the Borrower and the Liquidity Provider (the "Liquidity
Agreement"; the terms defined therein and not otherwise defined herein being
used herein as therein defined or referenced), that:
(1) The Borrower is the Subordination Agent under the
Intercreditor Agreement.
(2) The Borrower is delivering this Notice of Borrowing for the
making of the Downgrade Advance by the Liquidity Provider to be used for
the funding of the Class A Cash Account in accordance with Section
3.6(c) of the Intercreditor Agreement by reason of the downgrading of
the debt rating of the Liquidity Provider issued by either Rating Agency
below the applicable Threshold Rating, which Advance is requested to be
made on ____________.
(3) The amount of the Downgrade Advance requested hereby (i) is
$_____, which equals the Available Commitment on the date hereof and is
to be applied in respect of the funding of the Class A Cash Account in
accordance with Section 3.6(c) of the Intercreditor Agreement, (ii) does
not include any amount with respect to the payment of the principal of,
or premium on, the Class A Pass Through Certificates, or principal of,
or interest or premium on, the Class B Pass Through Certificates or the
Class C Pass Through Certificates, (iii) was computed in accordance with
the provisions of the Class A Pass Through Certificates, the Class A
Supplement and the Intercreditor Agreement (a copy of which computation
is attached hereto as Schedule I), and (iv) has not been and is not the
subject of a prior or contemporaneous Notice of Borrowing under the
Liquidity Agreement.
(4) Upon receipt by or on behalf of the Borrower of the amount
requested hereby, (a) the Borrower will deposit such amount in the Class
A Cash Account and apply the same in accordance with the terms of
Section 3.6(c) of the Intercreditor Agreement, (b) no portion of such
amount shall be applied by the Borrower for any other purpose and (c) no
portion of such amount until so applied shall be commingled with other
funds held by the Borrower.
(5) The Borrower hereby requests that the Advance requested
hereby be a Base Rate Advance and that such Base Rate Advance be
converted into a LIBOR Rate Advance on the third Business Day following
your receipt of this notice.
The Borrower hereby acknowledges that, pursuant to the Liquidity
Agreement, (A) the making of the Downgrade Advance as requested by this Notice
of Borrowing shall automatically and irrevocably terminate the obligation of
the Liquidity Provider to make further Advances under the Liquidity Agreement;
and (B) following the making by the Liquidity Provider of the Downgrade
Advance requested by this Notice of Borrowing, the Borrower shall not be
entitled to request any further Advances under the Liquidity Agreement.
IN WITNESS WHEREOF, the Borrower has executed and delivered this
Notice of Borrowing as of the __ day of ______, ____.
FIRST SECURITY BANK, NATIONAL ASSOCIATION,
not in its
individual capacity but solely as
Subordination Agent, as Borrower
By:
------------------------------------
Name:
Title:
SCHEDULE I TO DOWNGRADE ADVANCE NOTICE OF BORROWING
[Insert Copy of computations in accordance with
Downgrade Advance Notice of Borrowing]
Annex III to Irrevocable
Revolving Credit Agreement
NOTICE OF REPLACEMENT BORROWER
[Date]
Ladies and Gentlemen:
For value received, the undersigned beneficiary hereby irrevocably
transfers to:
[Name of Transferee]
[Address of Transferee]
all rights of the undersigned as Borrower under the Liquidity Agreement
referred to above. The transferee has succeeded the undersigned as
Subordination Agent under the Intercreditor Agreement referred to in the first
paragraph of the Liquidity Agreement.
By this transfer, all rights of the undersigned as Borrower under
the Liquidity Agreement are transferred to the transferee and the transferee
shall hereafter have the sole rights as Borrower thereunder. The undersigned
shall pay any costs and expenses of such transfer, including, but not limited
to, transfer taxes or governmental charges.
We ask that this transfer be effective as of _______, ____.
FIRST SECURITY BANK, NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Subordination Agent, as
Borrower
By:
------------------------------------
Name:
Title:
Annex IV Irrevocable
Revolving Credit Agreement
NOTICE OF AUTOMATIC REDUCTION OF COMMITMENT
[Date]
Ladies and Gentlemen:
The undersigned, duly authorized signatory of the undersigned
subordination agent (the "Borrower"), hereby notifies Kredietbank N.V., acting
through its New York Branch (the "Liquidity Provider"), with reference to the
Irrevocable Revolving Credit Agreement Class A Pass Through Certificates dated
as of May 1, 1997, between the Borrower and the Liquidity Provider (the
"Liquidity Agreement"; the terms defined therein and not otherwise defined
herein being used herein as therein defined or referenced), that, pursuant to
Section 2.04(a) of the Liquidity Agreement, the Commitment has been
automatically reduced to $____________.
IN WITNESS WHEREOF, the Borrower has executed and delivered this
Notice of Automatic Reduction of Commitment as of the ___day of _______, ____.
FIRST SECURITY BANK, NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Subordination Agent, as
Borrower
By:
------------------------------------
Name:
Title:
IRREVOCABLE REVOLVING CREDIT AGREEMENT
CLASS B PASS THROUGH CERTIFICATES
Dated as of May 1, 1997
between
FIRST SECURITY BANK, NATIONAL ASSOCIATION
as Subordination Agent,
as agent and trustee for the
Federal Express Corporation 1997-1-B Pass Through Trust,
as Borrower
and
KREDIETBANK N.V., NEW YORK BRANCH,
as Liquidity Provider
Relating to
Federal Express Corporation 1997-1-B Pass Through Trust
7.52% Federal Express Corporation Pass Through Certificates,
Series 1997-1
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS
Section 1.01 Certain Defined Terms.................................. 1
ARTICLE II
AMOUNT AND TERMS OF THE COMMITMENT
Section 2.01 The Advances........................................... 6
Section 2.02 Making the Advances.................................... 6
Section 2.03 Fees................................................... 8
Section 2.04 Reduction or Termination of the Commitment............. 8
Section 2.05 Repayments of Interest Advances or the Final Advance... 8
Section 2.06 Repayments of Downgrade Advances....................... 9
Section 2.07 Payments to the Liquidity Provider Under the
Intercreditor Agreement............................... 10
Section 2.08 Book Entries........................................... 10
Section 2.09 Payments from Available Funds Only..................... 10
ARTICLE III
OBLIGATIONS OF THE BORROWER
Section 3.01 Increased Costs........................................ 10
Section 3.02 Capital Adequacy....................................... 11
Section 3.03 Payments Free of Deductions............................ 12
Section 3.04 Payments............................................... 13
Section 3.05 Computations........................................... 13
Section 3.06 Payment on Non-Business Days........................... 13
Section 3.07 Interest............................................... 13
Section 3.08 Replacement of Borrower................................ 15
Section 3.09 Funding Loss Indemnification........................... 15
Section 3.10 Illegality............................................. 15
ARTICLE IV
CONDITIONS PRECEDENT
Section 4.01 Conditions Precedent to Effectiveness of Section 2.01.. 16
Section 4.02 Conditions Precedent to Borrowing...................... 18
ARTICLE V
COVENANTS
Section 5.01 Affirmative Covenants of the Borrower.................. 18
Section 5.02 Negative Covenants of the Borrower..................... 19
ARTICLE VI
FINAL ADVANCE
Section 6.01 Final Advance.......................................... 19
ARTICLE VII
MISCELLANEOUS
Section 7.01 Amendments, Etc........................................ 20
Section 7.02 Notices, Etc........................................... 20
Section 7.03 No Waiver; Remedies.................................... 20
Section 7.04 Further Assurances..................................... 21
Section 7.05 Indemnification; Survival of Certain Provisions........ 21
Section 7.06 Liability of the Liquidity Provider.................... 21
Section 7.07 Costs, Expenses and Taxes.............................. 22
Section 7.08 Binding Effect; Participations......................... 22
Section 7.09 Severability........................................... 24
Section 7.10 GOVERNING LAW.......................................... 24
Section 7.11 Submission to Jurisdiction; Waiver of Jury Trial....... 24
Section 7.12 Execution in Counterparts.............................. 25
Section 7.13 Entirety............................................... 25
Section 7.14 Headings; Section References........................... 25
Section 7.15 LIQUIDITY PROVIDER'S OBLIGATION TO MAKE
ADVANCES.............................................. 25
ANNEX I - Interest Advance Notice of Borrowing
ANNEX II - Downgrade Advance Notice of Borrowing
ANNEX III - Notice of Replacement Borrower
ANNEX IV - Notice of Automatic Reduction of Commitment
IRREVOCABLE REVOLVING CREDIT AGREEMENT
CLASS A PASS THROUGH CERTIFICATES
IRREVOCABLE REVOLVING CREDIT AGREEMENT, CLASS A PASS THROUGH
CERTIFICATES dated as of May 1, 1997 between FIRST SECURITY BANK, NATIONAL
ASSOCIATION, a national banking association, not in its individual capacity
but solely as Subordination Agent under the Intercreditor Agreement (each as
defined below), as agent and trustee for the Class A Pass Through Trust (as
defined below) (the "Borrower"), and KREDIETBANK N.V., acting through its New
York Branch (the "Liquidity Provider").
W I T N E S S E T H:
WHEREAS, pursuant to the Class B Supplement (such term and all
other capitalized terms used in these recitals having the meanings set forth
or referred to in Section 1.01), the Class B Pass Through Trust is issuing the
Class B Pass Through Certificates; and
WHEREAS, the Borrower, in order to support the timely payment of a
portion of the interest on the Class B Pass Through Certificates in accordance
with their terms, has requested the Liquidity Provider to enter into this
Agreement, providing in part for the Borrower to request in specified
circumstances that Advances be made hereunder.
NOW, THEREFORE, in consideration of the premises, the parties
hereto agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01 Certain Defined Terms. (a) Definitions. As used
in this Agreement and unless otherwise expressly indicated, or unless the
context clearly requires otherwise, the following capitalized terms shall have
the following respective meanings for all purposes of this Agreement:
"Advance" means an Interest Advance, a Final Advance, a Downgrade
Advance or an Applied Downgrade Advance.
"Applicable Liquidity Rate" means the rates of interest specified
in Section 3.07 with respect to any Advance or any other amount.
"Applicable Margin" means (x) with respect to any Downgrade
Advance (other than an Applied Downgrade Advance), .275% (27.5 basis
points) per annum and (y) with respect to any other Advance (including
an Applied Downgrade Advance), 1.50% (150 basis points) per annum.
"Applied Downgrade Advance" has the meaning assigned to such term
in Section 2.06(a).
"Available Commitment" means, at any time of determination, an
amount equal to (i) the Commitment at such time less (ii) subject to the
third sentence of Section 2.02(a), the aggregate amount of each Advance
outstanding at such time; provided that following a Downgrade Advance or
a Final Advance, the Available Commitment shall be zero.
"Base Rate" means a fluctuating interest rate per annum in effect
from time to time, which rate per annum shall at all times be equal to
the higher of (i) the base commercial lending rate announced from time
to time by the Liquidity Provider, or (ii) the rate quoted by the
Liquidity Provider, at approximately 11:00 A.M., New York City time, to
dealers in the New York Federal funds market for overnight offering of
dollars by the Liquidity Provider, for deposit plus .75 of 1 percent
(.75%).
"Base Rate Advance" means an Advance that bears interest at a rate
based upon the Base Rate.
"Borrower" has the meaning assigned to such term in the recital of
parties to this Agreement.
"Borrowing" means the making of Advances requested by delivery of
a Notice of Borrowing or pursuant to Section 6.01.
"Business Day" means any day other than a Saturday or Sunday or a
day on which commercial banks are required or authorized to close in
Memphis, Tennessee, New York, New York or, so long as any Class B Pass
Through Certificates are outstanding, the city and state in which the
Pass Through Trustee of the Class B Pass Through Trust maintains its
Corporate Trust Office or receives or disburses funds, and, if the
applicable Business Day relates to any Advance or other amount bearing
interest based on the LIBOR Rate, on which dealings in U.S. dollars are
carried on in the London interbank market (a "London Business Day");
provided, however, that if the day in question relates to the
effectiveness of the LIBOR Rate, Business Day shall mean a London
Business Day on which commercial banks are not required or authorized to
close in New York, New York.
"Commitment" means, initially, $13,062,240, as the same may be
reduced from time to time in accordance with Section 2.04(a).
"Downgrade Advance" means an Advance made pursuant to Section
2.02(b).
"Effective Date" has the meaning specified in Section 4.01. The
delivery of the certificate of the Liquidity Provider contemplated by
Section 4.01(e) shall be conclusive evidence that the Effective Date has
occurred.
"Expenses" means liabilities, obligations, damages, settlements,
penalties, claims, actions, suits, costs, expenses and disbursements
(including, without limitation, reasonable fees and disbursements of
legal counsel and costs of investigation), provided that Expenses shall
not include any Taxes.
"Expiry Date" means July 30, 2019.
"Final Advance" means an Advance made pursuant to Sections 2.02(c)
and 6.01.
"Intercreditor Agreement" means the Intercreditor Agreement dated
the date hereof, among the Pass Through Trustee, the Liquidity Provider,
the liquidity provider under each Liquidity Facility (other than this
Agreement) and the Subordination Agent, as the same may be amended,
supplemented or otherwise modified from time to time in accordance with
its terms.
"Interest Advance" means an Advance made pursuant to Section
2.02(a).
"Interest Period" means, with respect to any LIBOR Advance, each
of the following periods:
(i) the period beginning on the date such LIBOR Advance is
made (or is converted from a Base Rate Advance) and ending on the
next Regular Distribution Date; and
(ii) each subsequent period commencing on the last day of
the immediately preceding Interest Period and ending on the next
Regular Distribution Date.
"Lending Office" means the lending office of the Liquidity
Provider, presently located at 125 West 55th Street, New York, New York
10019, or such other lending office as the Liquidity Provider from time
to time shall notify the Borrower as its lending office hereunder.
"LIBOR Advance" means an Advance bearing interest at a rate based
upon the LIBOR Rate.
"LIBOR Rate" means, with respect to any Interest Period, the rate
per annum at which deposits in U.S. dollars are offered for the relevant
Interest Period by the Liquidity Provider to prime banks in the London
interbank market at approximately 11:00 A.M. (London time) two Business
Days before the first day of such Interest Period in the principal
amount of the Advance to which such Interest Period is to apply and for
a period of time comparable to such Interest Period, as quoted by the
Liquidity Provider to the Subordination Agent.
"Liquidity Event of Default" means the occurrence of the
following: all of the Equipment Trust Certificates shall have been
either declared to be immediately due and payable or shall not have been
paid at their final maturity. A Liquidity Event of Default shall not
occur upon an automatic acceleration of the Equipment Trust Certificates
as a result of a Federal Express Corporation Bankruptcy Event.
"Liquidity Indemnitee" means (i) the Liquidity Provider, (ii) each
affiliate of the Liquidity Provider, (iii) the respective directors,
officers, employees, agents and servants of the Liquidity Provider and
its affiliates, and (iv) the successors and permitted assigns of the
persons described in clauses (i) through (iii), inclusive.
"Liquidity Provider" has the meaning assigned to such term in the
recital of parties to this Agreement.
"Non-Excluded Tax" has the meaning specified in Section 3.03.
"Notice of Borrowing" has the meaning specified in Section
2.02(d).
"Notice of Replacement Borrower" has the meaning specified in
Section 3.08.
"Participant" has the meaning assigned to such term in Section
7.08(b).
"Performing Note Deficiency" means any time that less than 65% of
the then aggregate outstanding principal amount of all Equipment Trust
Certificates are Performing Equipment Trust Certificates.
"Prospectus" means the basic prospectus included in the
registration statement on Form S-3 (File No. 333-07691) filed by Federal
Express Corporation relating to certain pass through certificates, as
supplemented by the prospectus supplement dated May 22, 1997 reflecting
the terms of the Pass Through Certificates, as such Prospectus may be
amended or supplemented.
"Related Indemnitee" means, with respect to any Liquidity
Indemnitee, its director, officer, employee, agent, affiliate or
employer.
"Replenishment Amount" has the meaning assigned to such term in
Section 2.06(b).
"Required Amount" means, for any day, the sum of the aggregate
amount of interest, calculated at the rate per annum equal to the Stated
Interest Rate for the Class B Pass Through Certificates, that would be
payable on the Class B Pass Through Certificates on each of the three
successive semiannual Regular Distribution Dates immediately following
such day or, if such day is a Regular Distribution Date, on such day and
the succeeding two semiannual Regular Distribution Dates, in each case
calculated on the basis of the Pool Balance of the Class B Pass Through
Certificates on such day and without regard to expected future payments
of principal on the Class B Pass Through Certificates.
"Termination Date" means the earliest to occur of the following:
(i) the Expiry Date; (ii) the date on which the Borrower delivers to the
Liquidity Provider a certificate, signed by a Responsible Officer of the
Borrower, certifying that all of the Class B Pass Through Certificates
have been paid in full (or provision has been made for such payment in
accordance with the Intercreditor Agreement and the Pass Through
Agreements) or are otherwise no longer entitled to the benefits of this
Agreement; (iii) the date on which the Borrower delivers to the
Liquidity Provider a certificate, signed by a Responsible Officer of the
Borrower, certifying that a Replacement Liquidity Facility has been
substituted for this Agreement in full pursuant to Section 3.6(e) of the
Intercreditor Agreement; (iv) the date on which the Liquidity Provider
makes the Final Advance; and (v) the date on which no Advance is or may
(including by reason of reinstatement as herein provided) become
available for a Borrowing hereunder.
"Unpaid Advance" has the meaning assigned to such term in Section
2.05.
(b) Terms Defined in the Intercreditor Agreement. For all
purposes of this Agreement, the following terms shall have the respective
meanings assigned to such terms in the Intercreditor Agreement:
"Class A Pass Through Certificates", "Class B Cash Account",
"Class B Pass Through Certificateholders", "Class B Pass Through
Certificates", "Class B Pass Through Trust", "Class B Supplement",
"Class C Pass Through Certificates", "Closing Date", "Controlling
Party", "Corporate Trust Office", "Distribution Date", "Equipment Trust
Certificates", "Federal Express Corporation", "Federal Express
Corporation Bankruptcy Event", "Indenture", "Investment Earnings",
"Liquidity Facility", "Moody's", "Operative Agreements", "Participation
Agreements", "Pass Through Agreement", "Pass Through Certificate", "Pass
Through Trustee", "Performing Equipment Trust Certificates", "Person",
"Pool Balance", "Rating Agency", "Regular Distribution Dates",
"Replacement Liquidity Facility", "Responsible Officer", "Scheduled
Payment", "Special Payment", "Standard & Poor's", "Stated Interest Rate",
"Subordination Agent", "Taxes", "Threshold Rating", "Triggering Event",
"Underwriters", "Underwriting Agreement" and "Written Notice".
ARTICLE II
AMOUNT AND TERMS OF THE COMMITMENT
Section 2.01 The Advances. The Liquidity Provider hereby
irrevocably agrees, on the terms and conditions hereinafter set forth, to make
Advances to the Borrower from time to time on any Business Day during the
period from the Effective Date until 12:00 Noon (New York City time) on the
Expiry Date (unless the obligations of the Liquidity Provider shall be earlier
terminated in accordance with the terms of Section 2.04(b)) in an aggregate
amount at any time outstanding not to exceed the Commitment.
Section 2.02 Making the Advances. (a) Interest Advances shall
be made in one or more Borrowings by delivery to the Liquidity Provider of one
or more written and completed Notices of Borrowing in substantially the form
of Annex I attached hereto, signed by a Responsible Officer of the Borrower,
in an amount not exceeding the Available Commitment at such time and shall be
used solely for the payment when due of interest on the Class B Pass Through
Certificates at the Stated Interest Rate therefor in accordance with Section
3.6(a) of the Intercreditor Agreement. Each Interest Advance made hereunder
shall automatically reduce the Available Commitment and the amount available
to be borrowed hereunder by subsequent Advances by the amount of such Interest
Advance (subject to reinstatement as provided in the next sentence). Upon
repayment to the Liquidity Provider in full of the amount of any Interest
Advance made pursuant to this Section 2.02(a), together with accrued interest
thereon (as provided herein), the Available Commitment shall be reinstated by
the amount of such repaid Interest Advance; provided, however, that the
Available Commitment shall not be so reinstated at any time if (i) both (x) a
Triggering Event shall have occurred and be continuing and (y) a Performing
Note Deficiency exists or (ii) a Liquidity Event of Default shall have
occurred and be continuing.
(b) A Downgrade Advance shall be made in a single Borrowing upon
a downgrading of the rating of the Liquidity Provider resulting in the
Liquidity Provider's ratings not meeting the Threshold Rating (as provided for
in Section 3.6(c) of the Intercreditor Agreement) unless a Replacement
Liquidity Facility shall have been delivered to the Borrower in accordance
with said Section 3.6(c), by delivery to the Liquidity Provider of a written
and completed Notice of Borrowing in substantially the form of Annex II
attached hereto, signed by a Responsible Officer of the Borrower, in an amount
equal to the Available Commitment at such time, and shall be used to fund the
Class B Cash Account in accordance with said Section 3.6(c).
(c) A Final Advance shall be made by the Liquidity Provider
without the necessity for a Notice of Borrowing at the option of the Liquidity
Provider on the occurrence of an event described in Section 6.01(a) or 6.01(b)
in an amount equal to the Available Commitment at such time, and shall be used
to fund the Class B Cash Account.
(d) Each Borrowing (other than the making of a Final Advance)
shall be made on notice in writing (a "Notice of Borrowing") in substantially
the form required by Section 2.02(a) or 2.02(b), as the case may be, given not
later than 12:00 Noon (New York City time) on the Business Day prior to the
day of the proposed Borrowing by the Borrower to the Liquidity Provider. Upon
satisfaction of the conditions precedent set forth in Section 4.02 with
respect to a requested Borrowing, the Liquidity Provider shall, before 12:00
Noon (New York City time) on the date of such Borrowing or on such later
Business Day specified by the Borrower in such Notice of Borrowing, make
available to the Borrower, in U.S. dollars and in immediately available funds,
the amount of such Borrowing to be paid to the Borrower in accordance with its
payment instructions. If a Notice of Borrowing is delivered by the Borrower
in respect of any Borrowing after 12:00 Noon (New York City time) on a
Business Day, the Liquidity Provider shall, before 12:00 Noon (New York City
time) on the second Business Day next following the day of receipt of such
Notice of Borrowing or on such later Business Day specified by the Borrower in
such Notice of Borrowing, make available to the Borrower, in U.S. dollars and
in immediately available funds, the amount of such Borrowing to be paid to the
Borrower in accordance with its payment instructions. Payments of proceeds of
a Borrowing shall be made by wire transfer of immediately available funds to
the Borrower in accordance with such wire transfer instructions as the
Borrower shall furnish from time to time to the Liquidity Provider for such
purpose. Each Notice of Borrowing shall be irrevocable and binding on the
Borrower.
(e) Upon the making of any Advance requested pursuant to a
Notice of Borrowing, in accordance with the Borrower's payment instructions,
the Liquidity Provider shall be fully discharged of its obligation hereunder
with respect to such Notice of Borrowing, and the Liquidity Provider shall not
thereafter be obligated to make any further Advances hereunder in respect of
such Notice of Borrowing to the Borrower or to any other person (including the
holder of any Class B Pass Through Certificates or the Pass Through Trustee of
the Class B Pass Through Trust) who makes to the Pass Through Trustee of the
Class B Pass Through Trust or the Borrower a demand for payment with respect
to any Class B Pass Through Certificates. By paying to the Borrower proceeds
of Advances requested by the Borrower in accordance with the provisions of
this Agreement, the Liquidity Provider makes no representation as to, and
assumes no responsibility for, the correctness or sufficiency for any purpose
of the amount of the Advances so made and requested.
Section 2.03 Fees. (a) The Borrower agrees to pay to the
Liquidity Provider a fee equal to .25% of the Commitment (as in effect on
the Effective Date) plus $8,750 payable in U.S. dollars. Such fee shall
be payable on the Effective Date.
(b) The Borrower shall pay, or shall cause to be paid, to the
Liquidity Provider, a fee equal to .275% per annum on the average Available
Commitment from the Effective Date to the earlier of the date on which a
Downgrade Advance is made and the date on which the Commitment terminates.
Such fee shall be payable in arrears on each Regular Distribution Date.
Nothing contained in this Section 2.03(b) shall require the Borrower to pay
any amount under this Section 2.03(b) other than to the extent the Borrower
shall have funds available therefor.
Section 2.04 Reduction or Termination of the Commitment. (a)
Automatic Reductions. Promptly following each date on which the Required
Amount is reduced as a result of a reduction in the Pool Balance of the Class
B Pass Through Certificates or otherwise, the Commitment shall automatically
be reduced to an amount equal to such reduced Required Amount (as calculated
by the Borrower). The Borrower shall give notice of any such automatic
reduction of the Commitment (substantially in the form of Annex IV hereto) to
the Liquidity Provider (with a copy to Federal Express Corporation) within two
Business Days thereof. The failure by the Borrower to furnish any such notice
shall not affect such automatic reduction of the Commitment.
(b) Termination. Upon the making of any Downgrade Advance or
Final Advance hereunder or the occurrence of the Termination Date, the
obligation of the Liquidity Provider to make further Advances hereunder shall
automatically and irrevocably terminate, and the Borrower shall not be
entitled to request any further Borrowing hereunder.
Section 2.05 Repayments of Interest Advances or the Final
Advance. Subject to Sections 2.07 and 2.09, the Borrower hereby agrees to
pay, or to cause to be paid, to the Liquidity Provider on each date on which
the Liquidity Provider shall make an Interest Advance or the Final Advance, an
amount equal to (a) the amount of such Interest Advance or the Final Advance
(any such Interest Advance or the Final Advance, until repaid, is referred to
herein as an "Unpaid Advance"), plus (b) interest on the amount of each such
Unpaid Advance as provided in Section 3.07. Subject to Sections 2.06, 2.07
and 2.09, unless otherwise waived by the Liquidity Provider, the Borrower
shall be obligated, without notice of an Advance or demand for repayment from
the Liquidity Provider (which notice and demand are hereby waived by the
Borrower), to repay the Liquidity Provider for all Interest Advances and Final
Advances on the same day as made and all Applied Downgrade Advances on the
same day they become Applied Downgrade Advances in accordance with Section
2.06 hereof. The Borrower and the Liquidity Provider agree that the repayment
in full of each Interest Advance and the Final Advance on the date such
Interest Advance or the Final Advance is made and each Applied Downgrade
Advance on the date it becomes an Applied Downgrade Advance is intended to be
a contemporaneous exchange for new value given to the Borrower by the
Liquidity Provider.
Section 2.06 Repayments of Downgrade Advances. (a) Amounts
advanced hereunder in respect of a Downgrade Advance shall be deposited in
the Class B Cash Account, and invested and withdrawn from the Class B Cash
Account, as set forth in Sections 3.6(c), (e) and (f) of the Intercreditor
Agreement. The Borrower agrees to pay to the Liquidity Provider, on each
Regular Distribution Date, commencing on the first Regular Distribution
Date after the making of a Downgrade Advance, interest on the principal
amount of any such Downgrade Advance as provided in Section 3.07; provided,
however, that (i) any distribution to the Liquidity Provider of Investment
Earnings pursuant to Section 3.6(f) of the Intercreditor Agreement shall
constitute a payment of interest on such Downgrade Advance in the amount of
such Investment Earnings (not to exceed the amount specified in Section
3.07) and (ii) amounts in respect of a Downgrade Advance withdrawn from the
Class B Cash Account for the purpose of paying interest on the Class B Pass
Through Certificates in accordance with Section 3.6(f) of the Intercreditor
Agreement (the amount of any such withdrawal being an "Applied Downgrade
Advance") shall be treated as an Interest Advance under this Agreement for
purposes of determining the Applicable Liquidity Rate for interest payable
thereon. Immediately upon the withdrawal of any amounts from the Class B
Cash Account on account of a reduction in the Required Amount, the Borrower
shall repay the Downgrade Advances in a principal amount equal to the
amount of such reduction, plus interest on the principal amount repaid as
provided in Section 3.07.
(b) At any time when an Applied Downgrade Advance (or any
portion thereof) is outstanding, upon the deposit in the Class B Cash
Account of any amount pursuant to clause "third" of Section 2.4(b), clause
"third" of Section 3.2 or clause "fourth" of Section 3.3 of the
Intercreditor Agreement (any such amount being a "Replenishment Amount")
for the purpose of replenishing the balance thereof up to the Required
Amount at such time, (i) the aggregate outstanding principal amount of all
Applied Downgrade Advances shall be automatically reduced by the amount of
such Replenishment Amount and (ii) the principal amount of the outstanding
Downgrade Advance shall be automatically increased by the amount of such
Replenishment Amount.
(c) Upon the provision of a Replacement Liquidity Facility in
replacement of this Agreement in accordance with Section 3.6(e) of the
Intercreditor Agreement, and prior to the effectiveness of any Replacement
Liquidity Facility, the Borrower agrees that all amounts owing to the
Liquidity Provider shall be repaid in full, whether from advances made by the
Replacement Liquidity Provider, from amounts remaining on deposit in the Class
B Cash Account after giving effect to any application of funds therefrom to
any payment of interest on the Class B Pass Through Certificates on the date
of such replacement, or otherwise.
Section 2.07 Payments to the Liquidity Provider Under the
Intercreditor Agreement. In order to provide for payment or repayment to the
Liquidity Provider of any amounts hereunder, the Intercreditor Agreement
provides that amounts available and referred to in Articles II and III of the
Intercreditor Agreement, to the extent payable to the Liquidity Provider
pursuant to the terms of the Intercreditor Agreement (including, without
limitation, Section 3.6(f) of the Intercreditor Agreement), shall be paid to
the Liquidity Provider in accordance with the terms thereof. Amounts so paid
to the Liquidity Provider shall be applied by the Liquidity Provider in the
order of priority required by the applicable provisions of Articles II and III
of the Intercreditor Agreement.
Section 2.08 Book Entries. The Liquidity Provider shall maintain
in accordance with its usual practice an account or accounts evidencing the
indebtedness of the Borrower resulting from Advances made from time to time
and the amounts of principal and interest payable hereunder and paid from time
to time in respect thereof; provided, however, that the failure by the
Liquidity Provider to maintain such account or accounts shall not affect the
obligations of the Borrower in respect of Advances.
Section 2.09 Payments from Available Funds Only. All payments to
be made by the Borrower under this Agreement shall be made only from amounts
received by it that constitute Scheduled Payments or Special Payments and only
to the extent that the Borrower shall have sufficient income or proceeds
therefrom to enable the Borrower to make payments in accordance with the terms
hereof after giving effect to the priority of payments provisions set forth in
the Intercreditor Agreement. The Liquidity Provider agrees that it will look
solely to such amounts to the extent available for distribution to it as
provided in the Intercreditor Agreement and this Agreement and that the
Borrower, in its individual capacity, is not personally liable to it for any
amounts payable or liability under this Agreement except as expressly provided
in this Agreement, the Intercreditor Agreement or any Participation Agreement.
Amounts on deposit in the Class B Cash Account shall be available to make
payments only to the extent and for the purposes expressly contemplated in
Section 3.6(f) of the Intercreditor Agreement.
ARTICLE III
OBLIGATIONS OF THE BORROWER
Section 3.01 Increased Costs. If the Liquidity Provider shall
determine that (a) any change after the date hereof in any law or regulation
or in the interpretation thereof by any court or administrative or
governmental authority charged with the administration thereof or in the
compliance by the Liquidity Provider (or its head office) with any applicable
direction, request or requirement (whether or not having the force of law) of
any central bank or competent governmental or other authority shall either (i)
impose, modify or deem applicable any reserve, special deposit or similar
requirement against assets held by, or deposits in or for the account of, or
loans made by, the Liquidity Provider, or (ii) impose on the Liquidity
Provider any other condition regarding this Agreement or any Advance, or (iii)
change the basis of taxation of any amounts payable to the Liquidity Provider
(other than Taxes imposed on the overall net or gross income of the Liquidity
Provider) and (b) the result of any event referred to in the preceding clause
(i), (ii) or (iii) shall be to increase the cost to the Liquidity Provider of
issuing or maintaining its commitment or funding or maintaining Advances
(which increase in cost shall be determined by the Liquidity Provider's
reasonable allocations of the aggregate of such cost increases resulting from
such event), or to reduce the amount of any sum received or receivable by the
Liquidity Provider under this Agreement with respect thereto, then, upon
demand by the Liquidity Provider (such demand to be made not later than 60
days after a Responsible Officer of the Liquidity Provider obtains actual
knowledge of any event referred to in clause (i), (ii) or (iii) above), the
Borrower shall pay, or cause to be paid, to the Liquidity Provider, from time
to time as specified by the Liquidity Provider, additional amounts which shall
be sufficient to compensate the Liquidity Provider for such increased cost or
reduction; provided that if such demand for payment is made after such 60-day
period, the Borrower shall be obligated to pay such additional amounts only
with respect to such increased cost or reduction actually incurred or effected
on or after the 60th day prior to the date of such demand. A certificate as
to such increased cost or reduction (which shall set forth the basis for such
increased cost or reduction) incurred by the Liquidity Provider as a result of
any event mentioned in clause (i), (ii) and (iii) above, prepared in
reasonable detail and submitted by the Liquidity Provider to the Borrower,
shall be conclusive, absent manifest error, as to the amount thereof.
The Liquidity Provider agrees to use reasonable efforts
(consistent with its internal policy and legal and regulatory restrictions) to
change the jurisdiction of its Lending Office if making such change would
avoid the need for, or reduce the amount of, any amount payable under this
Section 3.01 that may thereafter accrue and would not, in the reasonable
judgment of the Liquidity Provider, be otherwise disadvantageous in any
material respect to the Liquidity Provider.
Section 3.02 Capital Adequacy. If the Liquidity Provider shall
determine that the adoption of any applicable law, rule or regulation
regarding capital adequacy, or any change therein, or any change in the
interpretation or administration thereof by any governmental authority,
central bank or comparable agency charged with the interpretation or
administration thereof, or compliance by the Liquidity Provider (or its head
office) with any request or directive regarding capital adequacy (whether or
not having the force of law) of any such authority, central bank or comparable
agency, in each case after the date hereof, has the effect of reducing the
rate of return on the Liquidity Provider's capital as a consequence of issuing
or maintaining its commitment hereunder or its funding or maintaining Advances
to a level below that which the Liquidity Provider could have achieved but for
such adoption, change or compliance (taking into consideration the Liquidity
Provider's policies with respect to capital adequacy) by an amount deemed by
the Liquidity Provider to be material, then, upon demand by the Liquidity
Provider, the Borrower shall pay to the Liquidity Provider, from time to time
as specified by the Liquidity Provider, additional amounts which shall be
sufficient to compensate the Liquidity Provider for such reduction in respect
of issuing or maintaining its commitment hereunder or its funding or
maintaining Advances. A certificate as to such additional amount describing
the event which has the effect of reducing the rate of return on the Liquidity
Provider's capital, prepared in reasonable detail and submitted by the
Liquidity Provider to the Borrower, shall be conclusive, absent manifest
error, as to the amount thereof.
The Liquidity Provider agrees to use reasonable efforts
(consistent with its internal policy and legal and regulatory restrictions) to
change the jurisdiction of its Lending Office if making such change would
avoid the need for, or reduce the amount of, any amount payable under this
Section 3.02 that may thereafter accrue and would not, in the reasonable
judgment of the Liquidity Provider, be otherwise disadvantageous in any
material respect to the Liquidity Provider.
Section 3.03 Payments Free of Deductions. All payments made by
the Borrower under this Agreement shall be made free and clear of, and
without reduction for or on account of, any present or future stamp or
other taxes, levies, imposts, duties, charges, fees, deductions,
withholdings, restrictions or conditions of any nature whatsoever now or
hereafter imposed, levied, collected, withheld or assessed, excluding any
Taxes imposed on the overall net income of the Liquidity Provider and
excluding United States federal income tax withholding to the extent such
withholding is, or would be, actually imposed upon payments to the
Liquidity Provider as of the date of this Agreement (such non-excluded
taxes being referred to herein, collectively, as "Non-Excluded Taxes" and,
individually, as a "Non-Excluded Tax"). If any Non-Excluded Taxes are
required to be withheld from any amounts payable to the Liquidity Provider
under this Agreement, the amounts so payable to the Liquidity Provider
shall be increased to the extent necessary to yield to the Liquidity
Provider (after payment of all Non-Excluded Taxes and taxes imposed on the
receipt of such increase) interest or any other such amounts payable under
this Agreement at the rates or in the amounts specified in this Agreement.
Whenever any Non-Excluded Tax is payable by the Borrower, promptly
thereafter the Borrower shall send the Liquidity Provider certified copies
of tax receipts evidencing such payment by the Borrower. The Liquidity
Provider agrees to provide to the Borrower on or prior to the Effective
Date, and from time to time thereafter after the occurrence of any event
requiring a change in the most recent form previously delivered by it (and
prior to the immediately following due date of any payment by the Borrower
hereunder), to the extent that the Liquidity Provider is legally entitled
to do so, two original Internal Revenue Service Form 1001 or 4224, as
appropriate, or any successor or other form prescribed by the Internal
Revenue Service, certifying that the Liquidity Provider is completely
exempt from United States withholding tax on payments pursuant to this
Agreement.
The Liquidity Provider agrees to use reasonable efforts
(consistent with its internal policy and legal and regulatory restrictions) to
change the jurisdiction of its Lending Office if making such change would
avoid the need for, or reduce the amount of, any amount payable under this
Section 3.03 that may thereafter accrue and would not, in the reasonable
judgment of the Liquidity Provider, be otherwise disadvantageous in any
material respect to the Liquidity Provider.
Section 3.04 Payments. The Borrower shall make or cause to be
made each payment to the Liquidity Provider under this Agreement so as to
cause the same to be received by the Liquidity Provider not later than 1:00
P.M. (New York City time) on the day when due. The Borrower shall make all
such payments in lawful money of the United States of America, to the
Liquidity Provider in immediately available funds, by wire transfer to The
Bank of New York, One Wall Street, New York, New York 10286, ABA No.
021-000-018, for the account of Kredietbank New York, Account No. 802-3015618,
Attention: Loan Administration (referencing Federal Express Corporation
Liquidity Facility).
Section 3.05 Computations. All computations of interest based on
the Base Rate shall be made on the basis of a year of 365 or 366 days, as the
case may be, and all computations of (x) interest based on the LIBOR Rate and
(y) fees payable to the Liquidity Provider shall be made on the basis of a
year of 360 days, in each case for the actual number of days (including the
first day but excluding the last day) occurring in the period for which such
interest is payable.
Section 3.06 Payment on Non-Business Days. Whenever any payment
to be made hereunder (other than a payment on LIBOR Advances) becomes due and
payable on a day other than a Business Day, such payment shall be made on the
next succeeding Business Day and interest thereon shall be payable at the then
applicable rate during such extension. If any payment on a LIBOR Advance
becomes due and payable on a day other than a Business Day, the maturity
thereof shall be extended to the next succeeding Business Day unless the
result of such extension would be to extend such payment into another calendar
month, in which event such payment shall be made on the immediately preceding
Business Day.
Section 3.07 Interest. (a) The Borrower shall pay, or shall
cause to be paid, interest on (i) the unpaid principal amount of each Advance
from and including the date of such Advance (or, in the case of an Applied
Downgrade Advance, from and including the date on which the amount thereof was
withdrawn from the Class B Cash Account to pay interest on the Class B Pass
Through Certificates) to but excluding the date such principal amount shall be
paid in full and (ii) any other amount due hereunder (whether fees,
commissions, expenses or other amounts or, to the extent permitted by law,
installments of interest on Advances or any such other amount) which is not
paid when due (whether at stated maturity, by acceleration or otherwise) from
and including the due date thereof to but excluding the date such amount is
paid in full, in each such case, at a fluctuating interest rate per annum for
each day equal to the Applicable Liquidity Rate for such Advance or such other
amount as in effect for such day, but in no event at a rate per annum greater
than the maximum rate permitted by applicable law; provided, however, that, if
at any time the otherwise applicable interest rate as set forth in this
Section 3.07 shall exceed the maximum rate permitted by applicable law, then
any subsequent reduction in such interest rate will not reduce the rate of
interest payable pursuant to this Section 3.07 below the maximum rate
permitted by applicable law until the total amount of interest accrued equals
the amount of interest that would have accrued if such otherwise applicable
interest rate as set forth in this Section 3.07 had at all times been in
effect. Nothing contained in this Section 3.07 shall require the Borrower to
pay any amount under this Section 3.07 other than to the extent the Borrower
shall have funds available therefor.
(b) Each Advance will be either a Base Rate Advance or a LIBOR
Advance as provided in this Section. Each such Advance will be a Base Rate
Advance for the period from the date of its borrowing to (but excluding) the
third Business Day following the Liquidity Provider's receipt of the Notice of
Borrowing for such Advance. Thereafter, such Advance shall be a LIBOR
Advance; provided that the Final Advance shall, until repaid in full, be a
Base Rate Advance and the Borrower may not convert the Final Advance into a
LIBOR Advance.
(c) Each LIBOR Advance shall bear interest during each Interest
Period at a per annum rate equal to the LIBOR Rate for such Interest Period
plus the Applicable Margin for such LIBOR Advance, payable in arrears on the
last day of such Interest Period and, in the event of the payment of principal
of such LIBOR Advance on a day other than such last day, on the date of such
payment (to the extent of interest accrued on the amount of principal repaid).
(d) Each Base Rate Advance shall bear interest at a per annum
rate equal to the Base Rate plus the Applicable Margin for such Base Rate
Advance, payable in arrears on each Regular Distribution Date and, in the
event of the payment of principal of such Base Rate Advance on a day other
than a Regular Distribution Date, on the date of such payment (to the extent
of interest accrued on the amount of principal repaid).
(e) [Intentionally Omitted]
(f) Each amount not paid when due hereunder (whether fees,
commissions, expenses or other amounts or, to the extent permitted by
applicable law, installments of interest on Advances) shall bear interest at
the Base Rate.
(g) Each change in the Base Rate shall become effective
immediately.
Section 3.08 Replacement of Borrower. Subject to Section
5.02(b), from time to time, upon the effective date and time specified in a
written and completed Notice of Replacement Borrower in substantially the form
of Annex III attached hereto (a "Notice of Replacement Borrower") delivered to
the Liquidity Provider by the then Borrower, the successor Borrower designated
therein shall be substituted for as the Borrower for all purposes hereunder.
Section 3.09 Funding Loss Indemnification. The Borrower shall
pay to the Liquidity Provider, upon the request of the Liquidity Provider,
such amount or amounts as shall be sufficient (in the reasonable opinion of
the Liquidity Provider) to compensate it for any loss, cost, or expense
incurred as a result of:
(a) Any payment or prepayment of a LIBOR Advance on a date other
than the last day of the Interest Period for such Advance;
(b) Any failure by the Borrower to borrow or convert, as the
case may be, a LIBOR Advance on the date for borrowing or conversion, as
the case may be, specified in the relevant notice under Section 2.02 or
3.07; or
(c) Any conversion of a LIBOR Advance to a Base Rate Advance
other than on the last day of the Interest Period for such Advance.
Section 3.10 Illegality. Notwithstanding any other provision in
this Agreement, if any change in any applicable law, rule or regulation, or
any change in the interpretation or administration thereof by any governmental
authority, central bank or comparable agency charged with the interpretation
or administration thereof, or compliance by the Liquidity Provider (or its
Lending Office) with any request or directive (whether or not having the force
of law) of any such authority, central bank or comparable agency shall make it
unlawful or impossible for the Liquidity Provider (or its Lending Office) to
maintain or fund its LIBOR Advances, then upon notice to the Borrower by the
Liquidity Provider, the outstanding principal amount of the LIBOR Advances
shall be converted to Base Rate Advances (a) immediately upon demand of the
Liquidity Provider, if such change or compliance with such request, in the
judgment of the Liquidity Provider, requires immediate repayment; or (b) at
the expiration of the last Interest Period to expire before the effective date
of any such change or request. In the event any change of the nature
described in the preceding sentence shall make it unlawful or impossible for
the Liquidity Provider (or its Lending Office) to maintain or fund its Base
Rate Advances, the Liquidity Provider shall have the right to cause a
Replacement Liquidity Facility to be substituted for this Agreement, subject
to (i) the satisfaction of the conditions precedent to the effectiveness of,
and the other provisions regarding, a Replacement Liquidity Facility set forth
in Section 3.6(e) of the Intercreditor Agreement and (ii) such Replacement
Liquidity Facility and Replacement Liquidity Provider being reasonably
acceptable to Federal Express Corporation.
ARTICLE IV
CONDITIONS PRECEDENT
Section 4.01 Conditions Precedent to Effectiveness of Section
2.01. Section 2.01 of this Agreement shall become effective on and as of the
first date (the "Effective Date") on which the following conditions precedent
have been satisfied or waived:
(a) The Liquidity Provider shall have received on or before the
Closing Date each of the following, each dated such date (except for
those documents delivered pursuant to paragraphs (v) and (vii) of this
Section 4.01(a)), and each in form and substance satisfactory to the
Liquidity Provider:
(i) This Agreement duly executed on behalf of the
Borrower;
(ii) The Intercreditor Agreement duly executed on behalf
of each of the parties thereto;
(iii) Counterparts (or certified copies thereof) of each
of the Operative Agreements (other than this Agreement and the
Intercreditor Agreement) which, when taken together, bear the
signatures of all of the respective parties thereto and which
are in full force and effect in accordance with their
respective terms;
(iv) A copy of the Prospectus and specimen copies of the
Class B Pass Through Certificates;
(v) Evidence that, on the Effective Date, the Class A Pass
Through Certificates, the Class B Pass Through Certificates and
the Class C Pass Through Certificates will receive long-term
credit ratings from Moody's of not lower than Aa3, A1 and Baa1,
respectively, and from Standard & Poor's of not lower than AAA,
AA- and BBB+, respectively;
(vi) An executed or certified copy of each document,
instrument, certificate and opinion delivered pursuant to the
Class B Supplement, the Intercreditor Agreement, the Participation
Agreements and the other Operative Agreements (together with, in
the case of each such opinion (unless such opinion is addressed to
the Liquidity Provider), other than the opinion of counsel for the
Underwriters, a letter from the counsel rendering such opinion to
the effect that the Liquidity Provider is entitled to rely on such
opinion as if it were addressed to the Liquidity Provider);
(vii) Evidence that there shall have been made and shall be
in full force and effect, all filings, recordings and/or
registrations, and there shall have been given or taken any notice
or other similar action as may be reasonably necessary or, to the
extent reasonably requested by the Liquidity Provider, reasonably
advisable, in order to establish, perfect, protect and preserve
the right, title and interest, remedies, powers, privileges, liens
and security interests of, or for the benefit of, the Pass Through
Trustee and the Liquidity Provider created by the Operative
Agreements;
(viii) Copies of the appraisals attached as exhibits to the
Prospectus; and
(ix) A letter from Federal Express Corporation agreeing to
provide to the Liquidity Provider the periodic financial reports
referred to in Section 4.03 of the Pass Through Agreements; and
(x) Such other documents, instruments, opinions and
approvals (and, if requested by the Liquidity Provider, certified
duplicates or executed copies thereof) as the Liquidity Provider
shall have reasonably requested.
(b) The following statements shall be true and shall be deemed
to have been represented by each party (other than clause (ii) below,
which shall be deemed to have been represented only by Federal Express
Corporation) on and as of the Effective Date:
(i) The representations and warranties of such Person
contained in each Participation Agreement are true and correct on
and as of the Effective Date as though made on and as of the
Effective Date; and
(ii) No event has occurred and is continuing, or would
result from the entering into of this Agreement or the making of
any Advance, which constitutes a Liquidity Event of Default.
(c) The Liquidity Provider shall have received payment in full
of all fees and other sums required to be paid to or for the account of
the Liquidity Provider on or prior to the Effective Date.
(d) All conditions precedent to the issuance of the Pass Through
Certificates under the Pass Through Agreements shall have been
satisfied, all conditions precedent to the effectiveness of the other
Liquidity Facilities shall have been satisfied, and all conditions
precedent to the purchase of the Pass Through Certificates by the
Underwriters under the Underwriting Agreement shall have been satisfied
(except for any of such conditions precedent under the Underwriting
Agreement that shall have been waived by the Underwriters).
(e) The Borrower shall have received a certificate, dated the
date hereof, signed by a duly authorized representative of the Liquidity
Provider, certifying that all conditions precedent to the effectiveness
of Section 2.01 have been satisfied or waived (other than this Section
4.01(e)).
Section 4.02 Conditions Precedent to Borrowing. The obligation
of the Liquidity Provider to make an Advance on the occasion of each Borrowing
shall be subject to the conditions precedent that the Effective Date shall
have occurred and, except in the case of a Final Advance, prior to the date of
such Borrowing, the Borrower shall have delivered a Notice of Borrowing which
conforms to the terms and conditions of this Agreement and has been completed
as may be required by the relevant form of the Notice of Borrowing for the
type of Advance requested.
ARTICLE V
COVENANTS
Section 5.01 Affirmative Covenants of the Borrower. So long as
any Advance shall remain unpaid or the Liquidity Provider shall have any
Commitment hereunder or the Borrower shall have any obligation to pay any
amount to the Liquidity Provider hereunder, the Borrower will, unless the
Liquidity Provider shall otherwise consent in writing:
(a) Performance of This and Other Agreements. Punctually pay or
cause to be paid all amounts payable by it under this Agreement and the
other Operative Agreements and observe and perform in all material
respects the conditions, covenants and requirements applicable to it
contained in this Agreement and the other Operative Agreements.
(b) Reporting Requirements. Furnish to the Liquidity Provider
with reasonable promptness, such other information and data with respect
to the transactions contemplated by the Operative Agreements as from
time to time may be reasonably requested by the Liquidity Provider; and
permit the Liquidity Provider, upon reasonable notice, to inspect the
Borrower's books and records with respect to such transactions and to
meet with officers and employees of the Borrower to discuss such
transactions.
Section 5.02 Negative Covenants of the Borrower. So long as any
Advance shall remain unpaid or the Liquidity Provider shall have any
Commitment hereunder or the Borrower shall have any obligation to pay any
amount to the Liquidity Provider hereunder, the Borrower will not, without the
written consent of the Liquidity Provider (such consent not to be unreasonably
withheld):
(a) Amendments. Modify, amend or supplement, or give any
consent to any modification, amendment or supplement or make any waiver
with respect to, any provision of the Pass Through Agreements, except
for any supplemental agreement to the Pass Through Agreements provided
for in Section 11.01 thereof.
(b) Borrower. Appoint or permit or suffer to be appointed any
successor Borrower.
ARTICLE VI
FINAL ADVANCE
Section 6.01 Final Advance. If (a) both (i) a Triggering Event
shall have occurred and be continuing and (ii) a Performing Note Deficiency
exists or (b) a Liquidity Event of Default shall have occurred and be
continuing, the Liquidity Provider may, in its discretion, make a Final
Advance whereupon (i) the Liquidity Provider shall have no further obligation
to make Advances hereunder, (ii) all other outstanding Advances shall be
automatically converted into Final Advances for purposes of determining the
Applicable Liquidity Rate for interest payable thereon, and (iii) subject to
Sections 2.07 and 2.09, all Advances, any accrued interest thereon and any
other amounts outstanding hereunder shall become immediately due and payable
to the Liquidity Provider.
ARTICLE VII
MISCELLANEOUS
Section 7.01 Amendments, Etc. No amendment or waiver of any
provision of this Agreement, nor consent to any departure by the Borrower
therefrom, shall in any event be effective unless the same shall be in writing
and signed by the Liquidity Provider, and, in the case of an amendment, the
Borrower, and then such waiver or consent shall be effective only in the
specific instance and for the specific purpose for which given.
Section 7.02 Notices, Etc. Except as otherwise expressly
provided herein, all notices and other communications provided for hereunder
shall be in writing (including telecopier and mailed or delivered or sent by
telecopier):
Borrower: First Security Bank, National Association
79 South Main Street
Salt Lake City, UT 84111
Attention: Corporate Trust Services
Telephone: (801) 246-5630
Telecopy: (801) 246-5053
Liquidity
Provider: Kredietbank N.V.
New York Branch
125 West 55th Street,
New York, New York 10019
Attention: General Manager
Telephone: (212) 541-0600
Telecopy: (212) 956-5580
or, as to each of the foregoing, at such other address as shall be designated
by such Person in a written notice to the others. All such notices and
communications shall be effective (i) if given by telecopier, when transmitted
to the telecopier number specified above, (ii) if given by mail, when
deposited in the mails addressed as specified above, and (iii) if given by
other means, when delivered at the address specified above, except that
written notices to the Liquidity Provider pursuant to the provisions of
Articles II and III hereof shall not be effective until received by the
Liquidity Provider. A copy of all notices delivered hereunder to either party
shall in addition be delivered to each of the parties to the Participation
Agreements at their respective addresses set forth therein.
Section 7.03 No Waiver; Remedies. No failure on the part of the
Liquidity Provider to exercise, and no delay in exercising, any right under
this Agreement shall operate as a waiver thereof; nor shall any single or
partial exercise of any right under this Agreement preclude any other or
further exercise thereof or the exercise of any other right. The remedies
herein provided are cumulative and not exclusive of any remedies provided by
law.
Section 7.04 Further Assurances. The Borrower agrees to do, upon
request, such further acts and things and to execute and deliver to the
Liquidity Provider such additional assignments, agreements, powers and
instruments as the Liquidity Provider may reasonably require or deem advisable
to carry into effect the purposes of this Agreement and the other Operative
Agreements or to better assure and confirm unto the Liquidity Provider its
rights, powers and remedies hereunder and under the other Operative Agreements.
Section 7.05 Indemnification; Survival of Certain Provisions.
The Liquidity Provider shall be indemnified hereunder to the extent and in the
manner described in Articles 8 and 9 of the Participation Agreements. In
addition, the Borrower agrees to indemnify, protect, defend and hold harmless
the Liquidity Provider from, against and in respect of, and shall pay on
demand, all Expenses of any kind or nature whatsoever, whether arising before,
on or after the date hereof, that may be imposed, incurred by or asserted
against any Liquidity Indemnitee, in any way relating to, resulting from, or
arising out of or in connection with, this Agreement, the Intercreditor
Agreement or the Participation Agreements; provided, however, that the
Borrower shall not be required to indemnify, protect, defend and hold harmless
any Liquidity Indemnitee in respect of any Expense of such Liquidity
Indemnitee (i) to the extent such Expense is attributable to the gross
negligence or willful misconduct of such Liquidity Indemnitee or any Related
Indemnitee, (ii) that is ordinary and usual operating overhead expense or
(iii) to the extent such Expense is attributable to the failure by such
Liquidity Indemnitee or its Related Indemnitee to perform or observe any
agreement, covenant or condition on its part to be performed or observed in
any Operative Agreement. The indemnities contained in Articles 8 and 9 of the
Participation Agreements, and the provisions of Sections 3.01, 3.02, 3.03,
7.05 and 7.07, shall survive the termination of this Agreement.
Section 7.06 Liability of the Liquidity Provider. (a) Neither
the Liquidity Provider nor any of its officers or directors shall be liable or
responsible for: (i) the use which may be made of the Advances or any acts or
omissions of the Borrower or any beneficiary or transferee in connection
therewith; (ii) the validity, sufficiency or genuineness of documents, or of
any endorsement thereon, even if such documents should prove to be in any or
all respects invalid, insufficient, fraudulent or forged; or (iii) the making
of Advances by the Liquidity Provider against delivery of a Notice of
Borrowing and other documents which do not comply with the terms hereof;
provided, however, that the Borrower shall have a claim against the Liquidity
Provider, and the Liquidity Provider shall be liable to the Borrower, to the
extent of any damages suffered by the Borrower which were the result of (A)
the Liquidity Provider's willful misconduct or negligence in determining
whether documents presented hereunder comply with the terms hereof, or (B) any
breach by the Liquidity Provider of any of the terms of this Agreement,
including, but not limited to, the Liquidity Provider's failure to make lawful
payment hereunder after the delivery to it by the Borrower of a Notice of
Borrowing strictly complying with the terms and conditions hereof.
(b) The Liquidity Provider shall not be liable or responsible in
any respect for (i) any error, omission, interruption or delay in
transmission, dispatch or delivery of any message or advice, however
transmitted, in connection with this Agreement or any Notice of Borrowing
delivered hereunder, or (ii) any action, inaction or omission which may be
taken by it in good faith, absent willful misconduct or negligence (in which
event the extent of the Liquidity Provider's potential liability to the
Borrower shall be limited as set forth in the immediately preceding
paragraph), in connection with this Agreement or any Notice of Borrowing.
Section 7.07 Costs, Expenses and Taxes. The Borrower agrees to
pay, or cause to be paid (A) on the Effective Date and on such later date
or dates on which the Liquidity Provider shall make demand, all reasonable
out-of-pocket costs and expenses of the Liquidity Provider in connection
with the preparation, negotiation, execution, delivery, filing and
recording of this Agreement, any other Operative Agreement and any other
documents which may be delivered in connection with this Agreement,
including, without limitation, the reasonable fees and expenses of outside
counsel for the Liquidity Provider and (B) on demand, all reasonable costs
and expenses of the Liquidity Provider (including reasonable counsel fees
and expenses) in connection with (i) the enforcement of this Agreement or
any other Operative Agreement, (ii) the modification or amendment of, or
supplement to, this Agreement or any other Operative Agreement or such
other documents which may be delivered in connection herewith or therewith
(whether or not the same shall become effective) or (iii) any action or
proceeding relating to any order, injunction, or other process or decree
restraining or seeking to restrain the Liquidity Provider from paying any
amount under this Agreement, the Intercreditor Agreement or any other
Operative Agreement or otherwise affecting the application of funds in the
Cash Accounts. In addition, the Borrower shall pay any and all recording,
stamp and other similar taxes and fees payable or determined to be payable
in connection with the execution, delivery, filing and recording of this
Agreement, any other Operative Agreement and such other documents, and
agrees to save the Liquidity Provider harmless from and against any and all
liabilities with respect to or resulting from any delay in paying or
omission to pay such taxes or fees.
Section 7.08 Binding Effect; Participations. (a) This Agreement
shall be binding upon and inure to the benefit of the Borrower and the
Liquidity Provider and their respective successors and assigns, except that
neither the Liquidity Provider (except as otherwise provided in this Section
7.08) nor the Borrower shall have the right to assign its rights hereunder or
any interest herein without the prior written consent of the other party,
subject to the requirement of Section 7.08(b). The Liquidity Provider may
grant participations herein or in any of its rights or security hereunder and
under the other Operative Agreements to such Persons as the Liquidity Provider
may in its sole discretion select, subject to the requirement of Section
7.08(b). No such participation by the Liquidity Provider, however, will
relieve the Liquidity Provider of its obligations hereunder. In connection
with any participation or any proposed participation, the Liquidity Provider
may disclose to the participant or the proposed participant any information
that the Borrower is required to deliver or to disclose to the Liquidity
Provider pursuant to this Agreement. The Borrower acknowledges and agrees
that the Liquidity Provider's source of funds may derive in part from its
participants. Accordingly, references in this Agreement and the other
Operative Agreements to determinations, reserve and capital adequacy
requirements, increased costs, reduced receipts and the like as they pertain
to the Liquidity Provider shall be deemed also to include those of each of its
participants (subject, in each case, to the maximum amount that would have
been incurred by or attributable to the Liquidity Provider directly if the
Liquidity Provider had not participated the interest).
(b) If, pursuant to subsection (a) above, the Liquidity Provider
sells any participation to any bank or other entity (each, a "Participant"),
then, concurrently with the effectiveness of such participation, the
Participant shall (i) represent to the Liquidity Provider (for the benefit of
the Liquidity Provider and the Borrower) either (A) that it is incorporated
under the laws of the United States or a state thereof or (B) that under
applicable law and treaties, no taxes will be required to be withheld by the
Borrower or the Liquidity Provider with respect to any payments to be made to
such Participant in respect of this Agreement, (ii) furnish to the Liquidity
Provider and the Borrower either (x) a statement that it is incorporated under
the laws of the United States or a state thereof or (y) if it is not so
incorporated, two copies of a properly completed United States Internal
Revenue Service Form 4224 or Form 1001, as appropriate, or other applicable
form, certificate or document prescribed by the Internal Revenue Service
certifying, in each case, such Participant's entitlement to a complete
exemption from United States federal withholding tax in respect to any and all
payments to be made hereunder, and (iii) agree (for the benefit of the
Liquidity Provider and the Borrower) to provide the Liquidity Provider and the
Borrower a new Form 4224 or Form 1001, as appropriate, (A) on or before the
date that any such form expires or becomes obsolete or (B) after the
occurrence of any event requiring a change in the most recent form previously
delivered by it and prior to the immediately following due date of any payment
by the Borrower hereunder, certifying in the case of a Form 1001 or Form 4224
that such Participant is entitled to a complete exemption from United States
federal withholding tax on payments under this Agreement. Unless the Borrower
has received forms or other documents reasonably satisfactory to it indicating
that payments hereunder are not subject to United States federal withholding
tax, the Borrower will withhold taxes as required by law from such payments at
the applicable statutory rate without any obligation to gross-up or indemnify
pursuant to Section 3.03.
(c) Notwithstanding the other provisions of this Section 7.08,
the Liquidity Provider may assign and pledge all or any portion of the
Advances owing to it to any Federal Reserve Bank or the United States Treasury
as collateral security pursuant to Regulation A of the Board of Governors of
the Federal Reserve System and any Operating Circular issued by such Federal
Reserve Bank, provided that any payment in respect of such assigned Advances
made by the Borrower to the Liquidity Provider in accordance with the terms of
this Agreement shall satisfy the Borrower's obligations hereunder in respect
of such assigned Advance to the extent of such payment. No such assignment
shall release the Liquidity Provider from its obligations hereunder.
Section 7.09 Severability. Any provision of this Agreement which
is prohibited, unenforceable or not authorized in any jurisdiction shall, as
to such jurisdiction, be ineffective to the extent of such prohibition,
unenforceability or nonauthorization without invalidating the remaining
provisions hereof or affecting the validity, enforceability or legality of
such provision in any other jurisdiction.
Section 7.10 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
Section 7.11 Submission to Jurisdiction; Waiver of Jury Trial.
(a) Each of the parties hereto hereby irrevocably and unconditionally:
(i) submits for itself and its property in any legal action or
proceeding relating to this Agreement or any other Operative
Agreement, or for recognition and enforcement of any judgment in
respect hereof or thereof, to the nonexclusive general jurisdiction
of the courts of the State of New York, the courts of the United
States of America for the Southern District of New York, and the
appellate courts from any thereof;
(ii) consents that any such action or proceeding may be brought
in such courts, and waives any objection that it may now or hereafter
have to the venue of any such action or proceeding in any such court or
that such action or proceeding was brought in an inconvenient court and
agrees not to plead or claim the same;
(iii) if such party does not maintain an office for the
transaction of its business in New York, agrees that service of process
in any such action or proceeding may be effected by mailing a copy
thereof by registered or certified mail (or any substantially similar
form of mail), postage prepaid, to each party hereto at its address set
forth in Section 7.02, or at such other address of which the Liquidity
Provider shall have been notified pursuant thereto; and
(iv) agrees that nothing herein shall affect the right to effect
service of process in any other manner permitted by law or shall limit
the right to sue in any other jurisdiction.
(b) THE BORROWER AND THE LIQUIDITY PROVIDER EACH HEREBY AGREE TO
WAIVE THEIR RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION
BASED UPON OR ARISING OUT OF THIS AGREEMENT OR ANY DEALINGS BETWEEN THEM
RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT AND THE RELATIONSHIP THAT IS
BEING ESTABLISHED, including, without limitation, contract claims, tort
claims, breach of duty claims and all other common law and statutory claims.
The Borrower and the Liquidity Provider each warrant and represent that it has
reviewed this waiver with its legal counsel, and that it knowingly and
voluntarily waives its jury trial rights following consultation with such
legal counsel. THIS WAIVER CANNOT BE MODIFIED ORALLY.
Section 7.12 Execution in Counterparts. This Agreement may be
executed in any number of counterparts and by different parties hereto on
separate counterparts, each of which counterparts, when so executed and
delivered, shall be deemed to be an original and all of which counterparts,
taken together, shall constitute but one and the same Agreement.
Section 7.13 Entirety. This Agreement and the other Operative
Agreements constitute the entire agreement of the parties hereto with respect
to the subject matter hereof and thereof and supersede all prior
understandings and agreements of such parties.
Section 7.14 Headings; Section References. Section headings in
this Agreement are included herein for convenience of reference only and shall
not constitute a part of this Agreement for any other purpose. Unless the
context otherwise requires or otherwise indicated herein, all Section
references in this Agreement are references to Sections hereof.
Section 7.15 LIQUIDITY PROVIDER'S OBLIGATION TO MAKE ADVANCES.
EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE OBLIGATIONS OF THE
LIQUIDITY PROVIDER TO MAKE ADVANCES HEREUNDER, AND THE BORROWER'S RIGHTS TO
DELIVER NOTICES OF BORROWING REQUESTING THE MAKING OF ADVANCES HEREUNDER, SHALL
BE UNCONDITIONAL AND IRREVOCABLE, AND SHALL BE PAID OR PERFORMED, IN EACH CASE
STRICTLY IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be duly executed and delivered by their respective officers thereunto duly
authorized as of the date first set forth above.
FIRST SECURITY BANK, NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Subordination Agent, as
Borrower
By: ____________________________________
Name:
Title:
KREDIETBANK N.V.,
NEW YORK BRANCH,
as Liquidity Provider
By: ____________________________________
Name:
Title:
By: ____________________________________
Name:
Title:
Annex I to Irrevocable
Revolving Credit Agreement
INTEREST ADVANCE NOTICE OF BORROWING
First Security Bank, National Association, acting not in its
individual capacity but solely as Subordination Agent, as borrower (the
"Borrower"), hereby certifies to KREDIETBANK N.V., acting through its New
York Branch (the "Liquidity Provider"), with reference to the Irrevocable
Revolving Credit Agreement Class B Pass Through Certificates dated as of
May 1, 1997, between the Borrower and the Liquidity Provider (the
"Liquidity Agreement"; the terms defined therein and not otherwise defined
herein being used herein as therein defined or referenced), that:
(1) The Borrower is the Subordination Agent under the
Intercreditor Agreement.
(2) The Borrower is delivering this Notice of Borrowing for the
making of an Interest Advance by the Liquidity Provider to be used for
the payment of interest on the Class B Pass Through Certificates which
was payable on the Distribution Date falling on __________ in accordance
with the terms and provisions of the Class B Supplement and the Class B
Pass Through Certificates and has not been paid pursuant to clause
fourth of Section 3.2 of the Intercreditor Agreement or clause sixth of
Section 3.3 of the Intercreditor Agreement, which Advance is requested
to be made on ___________________.
(3) The amount of the Interest Advance requested hereby (i) is
$________, to be applied in respect of the payment of interest which
was due and payable on the Class B Pass Through Certificates on such
Distribution Date, (ii) does not include any amount with respect to
the payment of principal of, or premium on, the Class A Pass Through
Certificates, the Class B Pass Through Certificates or the Class C
Pass Through Certificates, or interest on the Class A Pass Through
Certificates or the Class C Pass Through Certificates, (iii) was
computed in accordance with the provisions of the Class B Pass
Through Certificates, the Class B Supplement and the Intercreditor
Agreement (a copy of which computation is attached hereto as Schedule
I), (iv) does not exceed the Available Commitment on the date hereof,
and (v) has not been and is not the subject of a prior or
contemporaneous Notice of Borrowing.
(4) Upon receipt by or on behalf of the Borrower of the amount
requested hereby, (a) the Borrower will apply the same in accordance
with the terms of Sections 3.2 or 3.3 of the Intercreditor Agreement, as
the case may be, (b) no portion of such amount shall be applied by the
Borrower for any other purpose and (c) no portion of such amount until
so applied shall be commingled with other funds held by the Borrower.
(5) The Borrower hereby requests that the Advance requested
hereby be a Base Rate Advance and that such Base Rate Advance be
converted into a LIBOR Rate Advance on the third Business Day following
your receipt of this notice.
The Borrower hereby acknowledges that, pursuant to the Liquidity
Agreement, the making of the Interest Advance as requested by this Notice of
Borrowing shall automatically reduce, subject to reinstatement in accordance
with the terms of the Liquidity Agreement, the Available Commitment by an
amount equal to the amount of the Interest Advance requested to be made hereby
as set forth in clause (i) of paragraph (3) of this Certificate and such
reduction shall automatically result in corresponding reductions in the
amounts available to be borrowed pursuant to a subsequent Advance.
IN WITNESS WHEREOF, the Borrower has executed and delivered this
Notice of Borrowing as of the __ day of ______________, ____.
FIRST SECURITY BANK, NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Subordination Agent, as
Borrower
By: ____________________________________
Name:
Title:
SCHEDULE I TO INTEREST ADVANCE NOTICE OF BORROWING
[Insert Copy of Computations in accordance with
Interest Advance Notice of Borrowing]
Annex II to Irrevocable
Revolving Credit Agreement
DOWNGRADE ADVANCE NOTICE OF BORROWING
FIRST SECURITY BANK, NATIONAL ASSOCIATION, acting not in its
individual capacity but solely as Subordination Agent, as borrower (the
"Borrower"), hereby certifies to KREDIETBANK N.V., acting through its New
York Branch (the "Liquidity Provider"), with reference to the Irrevocable
Revolving Credit Agreement Class A Pass Through Certificates dated as of May
1, 1997, between the Borrower and the Liquidity Provider (the "Liquidity
Agreement"; the terms defined therein and not otherwise defined herein being
used herein as therein defined or referenced), that:
(1) The Borrower is the Subordination Agent under the
Intercreditor Agreement.
(2) The Borrower is delivering this Notice of Borrowing for the
making of the Downgrade Advance by the Liquidity Provider to be used for
the funding of the Class A Cash Account in accordance with Section
3.6(c) of the Intercreditor Agreement by reason of the downgrading of
the debt rating of the Liquidity Provider issued by either Rating Agency
below the applicable Threshold Rating, which Advance is requested to be
made on ____________.
(3) The amount of the Downgrade Advance requested hereby (i) is
$_____, which equals the Available Commitment on the date hereof and is
to be applied in respect of the funding of the Class B Cash Account in
accordance with Section 3.6(c) of the Intercreditor Agreement, (ii) does
not include any amount with respect to the payment of the principal of,
or premium on, the Class B Pass Through Certificates, or principal of,
or interest or premium on, the Class A Pass Through Certificates or the
Class C Pass Through Certificates, (iii) was computed in accordance with
the provisions of the Class B Pass Through Certificates, the Class B
Supplement and the Intercreditor Agreement (a copy of which computation
is attached hereto as Schedule I), and (iv) has not been and is not the
subject of a prior or contemporaneous Notice of Borrowing under the
Liquidity Agreement.
(4) Upon receipt by or on behalf of the Borrower of the amount
requested hereby, (a) the Borrower will deposit such amount in the Class
B Cash Account and apply the same in accordance with the terms of
Section 3.6(c) of the Intercreditor Agreement, (b) no portion of such
amount shall be applied by the Borrower for any other purpose and (c) no
portion of such amount until so applied shall be commingled with other
funds held by the Borrower.
(5) The Borrower hereby requests that the Advance requested
hereby be a Base Rate Advance and that such Base Rate Advance be
converted into a LIBOR Rate Advance on the third Business Day following
your receipt of this notice.
The Borrower hereby acknowledges that, pursuant to the Liquidity
Agreement, (A) the making of the Downgrade Advance as requested by this Notice
of Borrowing shall automatically and irrevocably terminate the obligation of
the Liquidity Provider to make further Advances under the Liquidity Agreement;
and (B) following the making by the Liquidity Provider of the Downgrade
Advance requested by this Notice of Borrowing, the Borrower shall not be
entitled to request any further Advances under the Liquidity Agreement.
IN WITNESS WHEREOF, the Borrower has executed and delivered this
Notice of Borrowing as of the __ day of ______, ____.
FIRST SECURITY BANK, NATIONAL ASSOCIATION,
not in its
individual capacity but solely as
Subordination Agent, as Borrower
By: ____________________________________
Name:
Title:
SCHEDULE I TO DOWNGRADE ADVANCE NOTICE OF BORROWING
[Insert Copy of computations in accordance with
Downgrade Advance Notice of Borrowing]
Annex III to Irrevocable
Revolving Credit Agreement
NOTICE OF REPLACEMENT BORROWER
[Date]
Ladies and Gentlemen:
For value received, the undersigned beneficiary hereby irrevocably
transfers to:
[Name of Transferee]
[Address of Transferee]
all rights of the undersigned as Borrower under the Liquidity Agreement
referred to above. The transferee has succeeded the undersigned as
Subordination Agent under the Intercreditor Agreement referred to in the first
paragraph of the Liquidity Agreement.
By this transfer, all rights of the undersigned as Borrower under
the Liquidity Agreement are transferred to the transferee and the transferee
shall hereafter have the sole rights as Borrower thereunder. The undersigned
shall pay any costs and expenses of such transfer, including, but not limited
to, transfer taxes or governmental charges.
We ask that this transfer be effective as of _______, ____.
FIRST SECURITY BANK, NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Subordination Agent, as
Borrower
By: ____________________________________
Name:
Title:
Annex IV Irrevocable
Revolving Credit Agreement
NOTICE OF AUTOMATIC REDUCTION OF COMMITMENT
[Date]
Ladies and Gentlemen:
The undersigned, duly authorized signatory of the undersigned
subordination agent (the "Borrower"), hereby notifies Kredietbank N.V., acting
through its New York Branch (the "Liquidity Provider"), with reference to the
Irrevocable Revolving Credit Agreement Class A Pass Through Certificates dated
as of May 1, 1997, between the Borrower and the Liquidity Provider (the
"Liquidity Agreement"; the terms defined therein and not otherwise defined
herein being used herein as therein defined or referenced), that, pursuant to
Section 2.04(a) of the Liquidity Agreement, the Commitment has been
automatically reduced to $____________.
IN WITNESS WHEREOF, the Borrower has executed and delivered this
Notice of Automatic Reduction of Commitment as of the ___day of _______, ____.
FIRST SECURITY BANK, NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Subordination Agent, as
Borrower
By: ____________________________________
Name:
Title:
TRUST INDENTURE AND SECURITY AGREEMENT
(Federal Express Corporation Trust No. N670FE)
Dated as of May 1, 1997
between
STATE STREET BANK AND TRUST COMPANY OF CONNECTICUT,
NATIONAL ASSOCIATION,
Not in its Individual
Capacity, but solely
As Owner Trustee,
Owner Trustee
and
FIRST SECURITY BANK, NATIONAL ASSOCIATION,
Not in its Individual
Capacity, but solely
As Indenture Trustee,
Indenture Trustee
COVERING ONE AIRBUS A300F4-605R AIRCRAFT
SERIAL NO. 777, REGISTRATION NO. N670FE
TABLE OF CONTENTS
Page
----
Initial Recitals......................................................... 1
Granting Clause.......................................................... 2
Habendum Clause.......................................................... 6
ARTICLE I
DEFINITIONS
Section 1.01. Definitions.............................................. 8
ARTICLE II
ISSUE, EXECUTION, FORM AND
REGISTRATION OF CERTIFICATES;
COLLATERAL ACCOUNT
Section 2.01. Authentication and Delivery of Certificates.............. 8
Section 2.02. Execution of Certificates................................ 9
Section 2.03. Certificate of Authentication............................ 9
Section 2.04. Form and Terms of Certificates; Payments of Principal,
Make-Whole Premium and Interest........................ 9
Section 2.05. Payments from Trust Indenture Estate Only................ 12
Section 2.06. Registration, Transfer and Exchange...................... 13
Section 2.07. Mutilated, Defaced, Destroyed, Lost and Stolen
Certificates........................................... 14
Section 2.08. Cancellation of Certificates; Destruction Thereof........ 15
Section 2.09. Temporary Certificates................................... 15
Section 2.10. Termination of Interest in Trust Indenture Estate........ 16
Section 2.11. Certificates in Respect of Replacement Aircraft.......... 16
Section 2.12. Assumption of Obligations Under Certificates and Other
Operative Agreements................................... 16
Section 2.13. Establishment of Collateral Account...................... 16
Section 2.14. Investment of Funds on Deposit in the Collateral Account. 17
Section 2.15. Release of Debt Portion and Lien on the Collateral Account
and the Liquid Collateral on Delivery Date............. 18
Section 2.16. Cut-Off Date............................................. 19
Section 2.17. Subordination............................................ 19
ARTICLE III
COVENANTS
Section 3.01. Payment of Principal, Make-Whole Premium and Interest.... 19
Section 3.02. Offices for Payments, etc................................ 20
Section 3.03. Appointment to Fill a Vacancy in Office of Indenture
Trustee................................................ 20
Section 3.04. Paying Agents............................................ 20
Section 3.05. Covenants of SSB and the Owner Trustee................... 20
Section 3.06. [Reserved]............................................... 21
Section 3.07. Disposal of Trust Indenture Estate....................... 21
Section 3.08. No Representations or Warranties as to Aircraft or
Documents.............................................. 22
Section 3.09. Further Assurances; Financing Statements................. 22
ARTICLE IV
HOLDER LISTS
Section 4.01. Holder Lists; Ownership of Certificates.................. 23
ARTICLE V
RECEIPT, DISTRIBUTION AND APPLICATION OF
INCOME FROM THE TRUST INDENTURE ESTATE
Section 5.01. Basic Rent Distribution.................................. 23
Section 5.02. Event of Loss and Replacement; Prepayment................ 24
Section 5.03. Payment After Indenture Event of Default, etc............ 25
Section 5.04. Certain Payments......................................... 27
Section 5.05. Other Payments........................................... 28
Section 5.06. Payments to Owner Trustee................................ 28
Section 5.07. Application of Payments.................................. 28
Section 5.08. Investment of Amounts Held by Indenture Trustee.......... 29
Section 5.09. Withholding Taxes........................................ 30
ARTICLE VI
PREPAYMENT OF CERTIFICATES
Section 6.01. No Prepayment Prior to Maturity.......................... 30
Section 6.02. Prepayment of Certificates............................... 30
Section 6.03. Notice of Prepayment to Holders.......................... 32
Section 6.04. Deposit of Prepayment Price and Sinking Fund Redemption
Price.................................................. 33
Section 6.05. Certificates Payable on Prepayment Date.................. 33
Section 6.06. Mandatory Sinking Fund Redemption........................ 33
ARTICLE VII
INDENTURE EVENTS OF DEFAULT; REMEDIES
OF INDENTURE TRUSTEE AND HOLDERS
Section 7.01. Indenture Event of Default............................... 35
Section 7.02. Remedies................................................. 38
Section 7.03. Return of Aircraft, etc.................................. 40
Section 7.04. Indenture Trustee May Prove Debt......................... 42
Section 7.05. Remedies Cumulative...................................... 44
Section 7.06. Suits for Enforcement.................................... 44
Section 7.07. Discontinuance of Proceedings............................ 45
Section 7.08. Limitations on Suits by Holders.......................... 45
Section 7.09. Unconditional Right of Holders to Receive Principal,
Interest and Make-Whole Premium, and to Institute Certain
Suits.................................................. 45
Section 7.10. Control by Holders....................................... 46
Section 7.11. Waiver of Past Indenture Default......................... 46
Section 7.12. Notice of Indenture Default.............................. 47
ARTICLE VIII
RIGHTS OF THE OWNER TRUSTEE
AND THE OWNER PARTICIPANT
Section 8.01. Certain Rights of Owner Trustee and Owner Participant.... 47
Section 8.02. Owner Participant's Right to Elect to Prepay or Purchase
the Certificates....................................... 50
Section 8.03. Certain Rights of Owner Participant...................... 52
ARTICLE IX
CONCERNING THE INDENTURE TRUSTEE
Section 9.01. Acceptance of Trusts..................................... 53
Section 9.02. Duties and Responsibilities of the Indenture Trustee; During
an Indenture Event of Default; Prior to an Indenture
Event of Default....................................... 54
Section 9.03. Certain Rights of the Indenture Trustee.................. 56
Section 9.04. Indenture Trustee Not Responsible for Recitals, Disposition
of Certificates or Application of Proceeds
Thereof................................................ 57
Section 9.05. Indenture Trustee and Agents May Hold Certificates;
Collections, etc....................................... 57
Section 9.06. Moneys Held by Indenture Trustee......................... 57
Section 9.07. Right of Indenture Trustee to Rely on Officer's Certificate,
etc.................................................... 57
Section 9.08. Replacement Airframes and Replacement Engines............ 58
Section 9.09. Indenture and Security Agreement Supplement for
Replacements........................................... 61
Section 9.10. Effect of Replacement.................................... 61
Section 9.11. Compensation............................................. 61
ARTICLE X
CONCERNING THE HOLDERS
Section 10.01. Evidence of Action Taken by Holders..................... 62
Section 10.02. Proof of Execution of Instruments and of Holding of
Certificates.......................................... 62
Section 10.03. Holders to Be Treated as Owners......................... 63
Section 10.04. Certificates Owned by Owner Trustee and the Lessee Deemed
Not Outstanding....................................... 63
Section 10.05. Right of Revocation of Action Taken..................... 64
Section 10.06. ERISA................................................... 64
ARTICLE XI
INDEMNIFICATION OF INDENTURE
TRUSTEE BY OWNER TRUSTEE
ARTICLE XII
SUCCESSOR TRUSTEES
Section 12.01. Notice of Successor Owner Trustee....................... 66
Section 12.02. Resignation and Removal of Indenture Trustee;
Appointment Successor................................. 66
Section 12.03. Persons Eligible for Appointment as Indenture Trustee... 67
Section 12.04. Acceptance of Appointment by Successor Trustee.......... 67
Section 12.05. Merger, Conversion, Consolidation or Succession to Business
of Indenture Trustee.................................. 68
Section 12.06. Appointment of Separate Trustees........................ 69
ARTICLE XIII
SUPPLEMENTS AND AMENDMENTS TO THIS
TRUST INDENTURE AND OTHER DOCUMENTS
Section 13.01. Supplemental Indentures Without Consent of Holders...... 71
Section 13.02. Supplemental Indentures With Consent of Holders......... 72
Section 13.03. Effect of Supplemental Indenture........................ 74
Section 13.04. Documents to Be Given to Indenture Trustee.............. 74
Section 13.05. Notation on Certificates in Respect of Supplemental
Indentures............................................ 74
Section 13.06. No Request Necessary for Lease Supplement or Indenture and
Security Agreement Supplement......................... 74
Section 13.07. Notices to Liquidity Providers.......................... 74
ARTICLE XIV
SATISFACTION AND DISCHARGE OF INDENTURE;
UNCLAIMED MONEYS
Section 14.01. Satisfaction and Discharge of Indenture; Termination of
Indenture............................................. 75
Section 14.02. Application by Indenture Trustee of Funds Deposited for
Payment of Certificates............................... 76
Section 14.03. Repayment of Moneys Held by Paying Agent................ 76
Section 14.04. Transfer of Moneys Held by Indenture Trustee and Paying
Agent Unclaimed for Two Years and Eleven
Months................................................ 76
ARTICLE XV
MISCELLANEOUS
Section 15.01. Capacity in Which Acting................................ 77
Section 15.02. No Legal Title to Trust Indenture Estate in Holders..... 77
Section 15.03. Sale of Trust Indenture Estate by Indenture Trustee is
Binding............................................... 77
Section 15.04. Indenture for Benefit of Owner Trustee, Indenture Trustee,
Owner Participant, Holders and Liquidity
Providers............................................. 77
Section 15.05. No Action Contrary to the Lessee's Rights Under the
Lease................................................. 78
Section 15.06. Notices................................................. 78
Section 15.07. Officer's Certificates and Opinions of Counsel; Statements
to Be Contained Therein............................... 79
Section 15.08. Severability............................................ 80
Section 15.09. No Oral Modifications or Continuing Waivers............. 80
Section 15.10. Successors and Assigns.................................. 80
Section 15.11. Headings................................................ 80
Section 15.12. Normal Commercial Relations............................. 80
Section 15.13. Governing Law; Counterparts............................. 80
Exhibit A -- Form of Indenture and Security Agreement Supplement
Exhibit B -- Form of Certificate
Schedule I -- [Reserved]
Schedule II -- Definitions
TRUST INDENTURE AND SECURITY AGREEMENT
(FEDERAL EXPRESS CORPORATION TRUST NO. N670FE)
TRUST INDENTURE AND SECURITY AGREEMENT (FEDERAL EXPRESS CORPORATION
TRUST NO. N670FE) dated as of May 1, 1997 (the "Indenture"), between STATE
STREET BANK AND TRUST COMPANY OF CONNECTICUT, NATIONAL ASSOCIATION, a national
banking association, not in its individual capacity, except as otherwise
specifically set forth herein (when acting in such individual capacity,
"SSB"), but solely as owner trustee (the "Owner Trustee") under the Trust
Agreement, as defined herein, and FIRST SECURITY BANK, NATIONAL ASSOCIATION, a
national banking association, as Indenture Trustee hereunder (the "Indenture
Trustee").
W I T N E S S E T H:
WHEREAS, capitalized terms used herein shall have the respective
meanings set forth or referred to in Article I hereof;
WHEREAS, the Owner Participant and SSB have, immediately prior to the
execution and delivery of this Indenture, entered into a Trust Agreement
(Federal Express Corporation Trust No. N670FE) dated as of the date hereof (as
amended or otherwise modified from time to time in accordance with the
provisions thereof and of the Participation Agreement, the "Trust Agreement"),
whereby, among other things, SSB has declared a certain trust for the use and
benefit of the Owner Participant, subject, however, to the Lien of this
Indenture for the use and benefit of, and with the priority of payment to, the
holders of the Certificates issued hereunder, and the Owner Trustee is
authorized and directed to execute and deliver this Indenture;
WHEREAS, the Owner Trustee desires by this Indenture, among other
things (i) to provide for the issuance by the Owner Trustee of Certificates as
provided in the Participation Agreement, and (ii) to provide for the
assignment, mortgage and pledge by the Owner Trustee to the Indenture Trustee,
as part of the Trust Indenture Estate hereunder of the Owner Trustee's right,
title and interest in the Liquid Collateral and after the Delivery Date for
the assignment, mortgage and pledge by the Owner Trustee to the Indenture
Trustee, as part of the Trust Indenture Estate hereunder, of among other
things, certain of the Owner Trustee's estate, right, title and interest in
and to the Aircraft and the Indenture Documents and certain payments and other
amounts (other than Excepted Payments) received hereunder or thereunder in
accordance with the terms hereof, as security for, among other things, the
Owner Trustee's obligations to the Certificate Holders and for the benefit and
security of such Holders;
WHEREAS, all things have been done to make the Certificates, when
executed by the Owner Trustee, and authenticated, issued and delivered
hereunder, the valid obligations of the Owner Trustee; and
WHEREAS, all things necessary to make this Indenture the valid,
binding and legal obligation of the Owner Trustee, enforceable in accordance
with its terms, have been done and performed and have happened.
NOW, THEREFORE, the parties agree as follows:
GRANTING CLAUSE
NOW, THEREFORE, in consideration of the mutual promises contained
herein and to secure (i) the prompt payment of the principal of and Make-Whole
Premium, if any, and interest on, and all other amounts due with respect to,
all the Certificates from time to time outstanding under this Indenture and
all other amounts due hereunder and (ii) the performance and observance by the
Owner Trustee of all the agreements, covenants and provisions in this
Indenture, in the Certificates, in the Participation Agreement and in the
Lease contained for the benefit of the Holders of the Certificates, and the
prompt payment of any and all amounts from time to time owing under the
Participation Agreement by the Owner Trustee, the Owner Participant or the
Lessee to the Holders (collectively the "Secured Obligations") and for the uses
and purposes and subject to the terms and provisions of this Indenture, and in
consideration of the premises and of the covenants in this Indenture and in
the Certificates and of the purchase of the Certificates by their Holders,
and of the sum of $1 paid to the Owner Trustee by the Indenture Trustee at
or before the delivery of this Indenture, the receipt and sufficiency of
which is hereby acknowledged, the Owner Trustee has granted, bargained,
sold, assigned, transferred, conveyed, mortgaged, pledged, granted a first
priority security interest in and confirmed, and does hereby grant,
bargain, sell, assign, transfer, convey, mortgage, pledge and grant a first
priority security interest in and confirm to the Indenture Trustee, its
successors and assigns, in trust for the equal and ratable security and
benefit of the Holders from time to time of the Certificates, a first
priority security interest in and first mortgage Lien on all estate, right,
title and interest of the Owner Trustee in, to and under the following
described property, rights and privileges other than Excepted Payments,
which collectively, excluding Excepted Payments but including all property
specifically subjected to the Lien of this Indenture by the terms hereof,
by any Indenture and Security Agreement Supplement or any mortgage
supplemental to this Indenture, are included within the Trust Indenture
Estate, subject always to the rights granted to the Owner Trustee or the
Owner Participant hereunder and to the other terms and conditions of this
Indenture:
(1) The Airframe, as the same is more particularly described in the
Indenture and Security Agreement Supplement and any airframe substituted in
replacement thereof pursuant to the provisions of this Indenture; the Engines,
as the same are more particularly described in the Indenture and Security
Agreement Supplement, whether or not such Engines shall be installed in or
attached to the Airframe or any other airframe, and any Replacement Engine
therefor; and all Parts in respect of the Airframe and the Engines and all
records, logs and other documents at any time maintained with respect to the
foregoing property;
(2) The Lease and all Rent thereunder, including, without limitation,
all amounts of Basic Rent and Supplemental Rent, and payments of any kind
thereunder and including all rights of the Owner Trustee to execute any
election or option or to give or receive any notice, consent, waiver or
approval under or in respect of the Lease or to accept any surrender of the
Aircraft or any part thereof as well as any rights, powers or remedies on the
part of the Owner Trustee, whether arising under the Lease or by statute or at
law or in equity or otherwise arising out of any Event of Default;
(3) The Purchase Agreement, the Purchase Agreement Assignment, the
AVSA Consent and Agreement, the Consent and Agreement, the Consent and
Guaranty, the GTA, the Engine Warranty Assignment and the Engine Consent,
AVSA's FAA Bill of Sale, AVSA's Warranty Bill of Sale, the Airbus Guaranty,
the Ancillary Agreements and the Participation Agreement (to the extent of
amounts payable to the Owner Trustee thereunder) (collectively, and together
with the Lease, the Trust Agreement and the Certificates, the "Indenture
Documents"), including all rights of the Owner Trustee to execute any election
or option or to give or receive any notice, consent, waiver or approval under
or in respect of any of the foregoing documents and instruments;
(4) All the tolls, rents, issues, profits, products, revenues and
other income (including sales proceeds) of the property subjected or required
to be subjected to the Lien of this Indenture, and all of the estate, right,
title and interest of the Owner Trustee in and to the same and every part of
said property;
(5) The Collateral Account, the Liquid Collateral and all other
moneys and securities (including Permitted Investments) now or hereafter paid
or deposited or required to be paid or deposited to or with the Indenture
Trustee by or for the account of the Owner Trustee pursuant to any term of any
Operative Agreement, except the Tax Indemnity Agreement, and held or required
to be held by the Indenture Trustee hereunder;
(6) All requisition proceeds with respect to the Aircraft or any part
thereof (to the extent of the Owner Trustee's interest therein pursuant to the
terms of the Lease) and all insurance proceeds with respect to the Aircraft or
any part thereof from insurance required to be maintained by the Lessee under
Article 13 of the Lease, but excluding any insurance maintained by the Lessee
and not required under Article 13 of the Lease; and
(7) All proceeds of the foregoing.
EXCLUDING, HOWEVER, from the foregoing grant of the Lien and security
interest of this Indenture and from the Trust Indenture Estate, (i) all
Excepted Payments, including without limitation all right, title and interest
of the Owner Participant in, to and under the Tax Indemnity Agreement and any
moneys due or to become due under the Tax Indemnity Agreement and all rights
to collect and enforce Excepted Payments and (ii) rights granted to or
retained by the Owner Trustee or the Owner Participant hereunder and SUBJECT
TO the following provisions:
(a) (i) whether or not an Indenture Event of Default shall occur and
be continuing, the Owner Trustee and the Owner Participant shall at all times
retain the right, to the exclusion of the Indenture Trustee, (A) to Excepted
Payments and to commence an action at law to obtain or otherwise demand, sue
for or receive and enforce the payment of such Excepted Payments, (B) to
exercise any election or option or make any decision or determination or to
give or receive any notice (including notice of Default), consent, waiver or
approval in respect of any such Excepted Payment, (C) to adjust (and make any
decision or determination or give any notice or consent with respect to) Basic
Rent and the percentages relating to Stipulated Loss Value and Termination
Value and the FPO Price as provided in Section 3.04 of the Lease and
Section 15.01 of the Participation Agreement, (D) to exercise any election
or option to make any decision or determination, or to give or receive any
notice, consent, waiver or approval, or to take any other action in respect
of, but in each case only to the extent relating to, Excepted Payments
(except for, in respect of any portion of Basic Rent constituting an
Excepted Payment, any action changing the manner by which such Basic Rent
is to be paid), (E) to retain the rights of the "Lessor" with respect to
solicitations of bids, and the election to retain the Aircraft pursuant to
Article 10 of the Lease, (F) to retain the right of "Lessor" to determine
the Fair Market Rental or Fair Market Value pursuant to Article 4 of the
Lease, (G) to exercise all other rights of the Lessor under Articles 4 and
10 of the Lease with respect to the retention or purchase by the Lessee or
the Lessor of the Aircraft or the exercise by the Lessee of the Lessee's
renewal or purchase options, (H) to retain all rights with respect to
insurance maintained for its own account which Section 13.05 of the Lease
specifically confers on the "Lessor", (I) to approve appraisers, lawyers
and other professionals and receive notices, certificates, reports,
filings, opinions and other documents, in each case with respect to matters
relating to the Owner Participant's tax position, (J) to approve any
accountants to be used in the verification of any Rent adjustment, and (K)
to exercise, to the extent necessary to enable it to exercise its rights
under Section 8.03 hereof, the rights of the "Lessor" under Section 17.04
of the Lease;
(ii) whether or not an Indenture Event of Default shall occur and be
continuing, the Owner Trustee and the Indenture Trustee shall each have the
rights separately but not to the exclusion of the other (agreement of both
required in the case of clause (E) below), (A) to receive from the Lessee all
notices, certificates, reports, filings, opinions of counsel, copies of all
documents and all information which the Lessee is permitted or required to
give or furnish to the "Lessor" pursuant to the Lease or to the Owner Trustee
pursuant to any other Operative Agreement, (B) to exercise inspection rights
pursuant to Section 14.01 of the Lease (provided that if an Indenture Event of
Default shall be continuing, no inspection right of the Owner Trustee shall
interfere with the efforts of the Indenture Trustee to exercise remedies under
the Lease or this Indenture), (C) to maintain separate insurance pursuant to
Section 13.05 of the Lease and to retain all rights with respect to such
insurance maintained for its own account, (D) to give any notice of default
under Section 16.01 of the Lease and (E) the right to consent to changes to
the list of countries on Schedule III to the Participation Agreement;
(iii) subject to the last sentence of this clause (a), (A) so long as
no Indenture Event of Default not constituting an Event of Default shall have
occurred and be continuing (but subject to the provisions of Section 8.01
hereof), the Owner Trustee shall retain the right, to the exclusion of the
Indenture Trustee (or, if an Indenture Event of Default that is also an Event
of Default shall have occurred and be continuing, acting jointly with and not
to the exclusion of the Indenture Trustee), to exercise all rights, elections
and options of the Lessor in connection with the return of the Aircraft under
Article 12 of the Lease (but not Article 17 thereof, it being understood that
the Indenture Trustee shall have the exclusive right to exercise remedies
pursuant to such Article 17, including in respect of any related return of the
Aircraft pursuant to Article 12 of the Lease), including the right to approve
as satisfactory any accountants, engineers, appraisers or counsel to render
services for or issue appraisals, reports, certificates or opinions to the
Owner Trustee and to exercise all rights, elections and options of the Lessor
in connection with the return of the Aircraft pursuant to the express
provisions of the Operative Agreements, and (B) so long as no Indenture Event
of Default not constituting an Event of Default shall have occurred and be
continuing (but subject to the provisions of Section 8.01 hereof), the Owner
Trustee shall retain the right, jointly with the Indenture Trustee (agreement
of both not being required), to further assurances and financial information
from the Lessee pursuant to Section 19.01 of the Lease (other than the right
to receive any funds to be delivered to the "Lessor" under the Lease (except
funds delivered with respect to Excepted Payments) and under the Purchase
Agreement;
(iv) subject to the last sentence of this clause (a), at all times
the Owner Trustee shall have the right as Lessor, but not to the exclusion of
the Indenture Trustee, to seek specific performance of the covenants of the
Lessee under the Lease relating to the protection, insurance, maintenance,
possession and use of the Aircraft; and
(v) at all times the Owner Trustee and the Owner Participant shall
have the rights granted to them under Articles VI, VIII and X and Section 7.02
hereof.
Notwithstanding the foregoing, but subject always to the provisions of Section
15.05 hereof, the Indenture Trustee shall at all times have the right, to the
exclusion of the Owner Trustee and the Owner Participant, to (A) (other than
with respect to Excepted Payments) declare the Lease to be in default under
Article 17 thereof or any statute (including, without limitation, Article 2-A
of the Uniform Commercial Code) and (B) subject only to the provisions of this
Indenture, (other than in connection with Excepted Payments) exercise the
remedies set forth in such Article 17 of the Lease any statute (including
without limitation Article 2-A of the Uniform Commercial Code), at law and in
Article 7 hereof.
(b) The foregoing provisions in paragraph (a) above shall be equally
applicable to all rights of the Indenture Trustee in respect of Ancillary
Agreement I and Ancillary Agreement II, whether such rights are granted
directly to the Indenture Trustee under such agreements or are granted under
the Granting Clause of this Indenture.
(c) The leasehold interest granted to the Lessee by the Lease shall
not be subject to the security interest granted by this Indenture, and nothing
in this Indenture shall affect the rights of the Lessee under the Lease so
long as no Event of Default has occurred and is continuing.
HABENDUM CLAUSE
TO HAVE AND TO HOLD the aforesaid property unto the Indenture
Trustee, its successors and assigns, in trust for the equal and ratable
benefit and security of the Holders from time to time of the Certificates,
without any priority of any one Certificate over any other and for the uses
and purposes and subject to the terms and conditions set forth in this
Indenture and the rights of the Owner Trustee and the Owner Participant
under this Indenture.
It is expressly agreed that anything contained in this Indenture to
the contrary notwithstanding, the Owner Trustee shall remain liable under the
Indenture Documents to perform all of the obligations assumed by it under any
of those documents, all in accordance with and pursuant to the terms and
provisions of those documents, and the Indenture Trustee and the Holders of
the Certificates shall have no obligation or liability under the Indenture
Documents by reason of or arising out of the assignment under this Indenture,
nor shall the Indenture Trustee or the Holders of the Certificates be required
or obligated in any manner to perform or fulfill any obligations of the Owner
Trustee under or pursuant to the Indenture Documents or, except as expressly
provided in this Indenture, to make any payment, or to make any inquiry as to
the nature or sufficiency of any payment received by it, or present or file
any claim, or take any action to collect or enforce the payment of any amounts
which may have been assigned to it or to which it may be entitled at any time
or times.
Effective upon the occurrence and continuance of an Indenture
Event of Default, the Owner Trustee hereby constitutes the Indenture
Trustee the true and lawful attorney of the Owner Trustee, irrevocably,
with full power (in the name of the Owner Trustee or otherwise), subject to
the terms and conditions of this Indenture, to ask, require, demand,
receive, compound and give acquittance for any and all Basic Rent,
Supplemental Rent payable to the Owner Trustee, Stipulated Loss Value and
Termination Value payments, insurance proceeds and any and all moneys and
claims for moneys due and to become due under or arising out of the Lease
(subject to Section 8.01 hereof) or the other Indenture Documents (other
than Excepted Payments), to endorse any checks or other instruments or
orders in connection with the same and to file any claims, take any action
or institute any proceeding which the Indenture Trustee may deem to be
necessary or advisable in the premises.
Under the Lease the Lessee is directed to make all payments of Rent
(other than Excepted Payments not constituting Basic Rent) payable to the
Owner Trustee and all other amounts (other than Excepted Payments not
constituting Basic Rent) which are required to be paid to or deposited with
the Owner Trustee pursuant to the Lease directly to the Indenture Trustee at
such address in the United States of America as the Indenture Trustee shall
specify for application as provided in this Indenture. The Owner Trustee
agrees that if, notwithstanding such provision, it shall have received any
such amounts, promptly on receipt of any such payment, it will transfer to the
Indenture Trustee any and all moneys from time to time received by the Owner
Trustee constituting part of the Trust Indenture Estate for distribution by
the Indenture Trustee pursuant to this Indenture, except that the Owner
Trustee shall accept for distribution pursuant to the Trust Agreement (i) any
amounts distributed to it by the Indenture Trustee under this Indenture, and
(ii) any Excepted Payments not constituting Basic Rent.
The Owner Trustee agrees that at any time and from time to time, upon
the written request of the Indenture Trustee, the Owner Trustee will, at the
expense of the Lessee, promptly and duly execute and deliver or cause to be
duly executed and delivered any and all such further instruments and documents
as the Indenture Trustee may reasonably deem desirable in obtaining the full
benefits of the assignment hereunder and of the rights and powers herein
granted; provided, however, that the Owner Trustee shall have no obligation to
execute and deliver or cause to be executed or delivered to the Indenture
Trustee any such instrument or document if such execution and delivery would
result in the imposition of additional liabilities on the Owner Trustee or the
Owner Participant or would result in a burden on the Owner Participant's
business activities, unless the Owner Trustee or the Owner Participant, as the
case may be, is indemnified to its reasonable satisfaction against any losses,
liabilities and expenses incurred in connection with such execution and
delivery.
The Owner Trustee does hereby warrant and represent that it has not
assigned, pledged or otherwise disposed of, and hereby covenants that it will
not assign or pledge or otherwise dispose of, so long as the assignment
hereunder shall remain in effect and shall not have been terminated pursuant
to Section 14.01 hereof, any of its right, title or interest hereby assigned,
to anyone other than the Indenture Trustee, and that it will not, except in
respect of Excepted Payments or otherwise as provided in or permitted by this
Indenture, enter into an agreement amending or supplementing any of the
Indenture Documents, settle or compromise any claim (other than claims in
respect of Excepted Payments) against the Lessee arising under any of the
Indenture Documents, or submit or consent to the submission of any dispute,
difference or other matter arising under or in respect of any of the Indenture
Documents, to arbitration thereunder.
Concurrently with the delivery of this Indenture, the Owner Trustee
has delivered to the Indenture Trustee executed counterparts of the Trust
Agreement and the chattel paper original counterpart of the Lease.
It is hereby further covenanted and agreed by and between the parties
as follows:
ARTICLE I
DEFINITIONS
Section 1.01. Definitions. Unless the context otherwise requires,
capitalized terms utilized herein shall have the meanings set forth in
Schedule II hereto for all purposes of this Indenture and shall be equally
applicable to both the singular and plural forms of the terms defined.
ARTICLE II
ISSUE, EXECUTION, FORM AND
REGISTRATION OF CERTIFICATES;
COLLATERAL ACCOUNT
Section 2.01. Authentication and Delivery of Certificates.
Forthwith upon the execution and delivery of this Indenture, and from time to
time thereafter, Certificates in an aggregate principal amount not in excess
of the amount specified in Section 2.04 hereof (except as otherwise provided
in Sections 2.06 and 2.07 hereof) shall be executed by the Owner Trustee and
delivered to the Indenture Trustee for authentication, and the Indenture
Trustee shall thereupon authenticate and deliver said Certificates to or upon
the oral or written order of the Owner Trustee, signed, if written, by an
authorized officer of the Owner Trustee, without any further action by the
Owner Trustee.
Section 2.02. Execution of Certificates. The Certificates shall be
signed on behalf of the Owner Trustee by an authorized officer of SSB. Such
signatures may be the manual or facsimile signatures of such officer and minor
errors or defects in any reproduction of any such signature shall not affect
the validity or enforceability of any Certificate which has been duly
authenticated and delivered by the Indenture Trustee.
In case any officer of SSB who shall have signed any of the
Certificates shall cease to be such officer before the Certificate so signed
shall be authenticated and delivered by the Indenture Trustee or disposed of
by SSB, such Certificate nevertheless may be authenticated and delivered or
disposed of as though the person who signed such Certificate had not ceased to
be such officer of SSB; and any Certificate may be signed on behalf of the
Owner Trustee by such person or persons as, at the actual date of the
execution of such Certificate, shall be the proper officers of SSB, although
at the date of the execution and delivery of this Indenture any such person
was not such an officer. Certificates bearing the facsimile signatures of
individuals who were authorized officers of SSB at the time such Certificates
were issued shall bind the Owner Trustee, notwithstanding that such
individuals or any of them have ceased to hold such offices prior to the
authentication and delivery of such Certificates or did not hold such offices
at the respective dates of such Certificates.
Section 2.03. Certificate of Authentication. Only such Certificates
as shall bear thereon a certificate of authentication substantially in the
form set forth in Exhibit B, executed by the Indenture Trustee by manual
signature of one of its authorized officers, shall be entitled to the security
and benefits of this Indenture or be valid or obligatory for any purpose.
Such certificate by the Indenture Trustee upon any Certificate executed by the
Owner Trustee shall be conclusive evidence that the Certificate so
authenticated has been duly authenticated and delivered hereunder and that the
Holder, as evidenced on the Register, is entitled to the security and benefits
of this Indenture.
Section 2.04. Form and Terms of Certificates; Payments of Principal,
Make-Whole Premium and Interest. The Certificates and the Indenture Trustee's
certificate of authentication shall be substantially in the form set forth in
Exhibit B hereto. Certificates may differ with respect to Maturity (subject
to Section 15.01(d) of the Participation Agreement) and as to other terms.
The Certificates shall be issuable as registered securities without coupons
and shall be numbered, lettered, or otherwise distinguished in such manner or
in accordance with such plans as the Owner Trustee executing the same may
determine with the approval of the Indenture Trustee.
The aggregate principal amount of Certificates that may be
authenticated and delivered under this Indenture is limited as provided in
the form of Certificate attached as Exhibit B hereto. The Certificates
shall be issued in registered form only and in denominations of $1,000 and
any integral multiple thereof, shall be dated the Certificate Closing Date,
shall be issued in three separate series consisting of Series A, Series B
and Series C and shall be issued in the Maturities and principal amounts,
and shall bear interest at the rates per annum, specified in the form of
Certificate set forth in Exhibit B.
Any of the Certificates may be issued with appropriate insertions,
omissions, substitutions and variations, and may have imprinted or otherwise
reproduced thereon such legend or legends, not inconsistent with the
provisions of this Indenture, as may be required to comply with any law or
with any rules or regulations pursuant thereto, or with the rules of any
securities market in which the Certificates are admitted to trading, or to
conform to general usage.
Each Certificate shall bear interest from the date of original
issuance thereof or from the most recent date to which interest has been paid
and duly provided for, as the case may be, which shall be payable on the dates
specified on the face of the form of Certificate set forth in Exhibit B hereto
until the principal thereof is paid. Interest shall be calculated on the
basis of a 360-day year of twelve 30-day months.
Notwithstanding the preceding paragraph, each Certificate shall bear
interest at the Past Due Rate on any principal, interest and any other amount
payable hereunder or under such Certificate, which shall not be paid in full
when due (whether at stated maturity, by acceleration, by mandatory prepayment
or otherwise), for the period from and including the due date thereof to but
excluding the date the same is paid in full, payable from time to time on
demand of the Indenture Trustee.
The principal of, and Make-Whole Premium, if any, and interest on,
the Certificates shall be payable at the Corporate Trust Department of the
Indenture Trustee or at any office or agency maintained for such purpose
pursuant to Section 3.02 hereof in immediately available funds prior to
10:30 A.M. (New York time) on the due date thereof and the Indenture
Trustee shall remit all such amounts received by it to the Holders at such
account or accounts at such financial institution or institutions as the
Holders shall have designated to the Indenture Trustee in writing, in
immediately available funds, such payment to be made if the payment was
received prior to 10:30 A.M. New York time by the Indenture Trustee on any
Business Day, by 12:00 noon New York time on such Business Day; otherwise,
the Indenture Trustee shall make payment promptly, but not later than 11:00
A.M. New York time on the next succeeding Business Day; provided, however,
that interest may be payable at the option of the Indenture Trustee or its
Paying Agent, as defined in Section 3.04, by mailing checks for such
interest payable to or upon the written order of the Holders entitled
thereto as they shall appear on the Register. If any amount payable under
the Certificates, or under this Indenture, falls due on a day that is not a
Business Day, then such sum shall be payable on the next succeeding
Business Day, without (provided that payment is made on such next
succeeding Business Day) additional interest thereon for the period of such
extension.
The Holder at the close of business on any Record Date with respect
to any Payment Date shall be entitled to receive the interest if any payable
on such Payment Date notwithstanding any transfer or exchange of such
Certificate subsequent to the Record Date and prior to such Payment Date,
except if and to the extent the Owner Trustee shall default in the payment of
the interest due on such Payment Date, in which case such defaulted interest
shall be paid to the Holder at the close of business on a subsequent Record
Date (which shall be not less than five (5) or more than fifteen (15) Business
Days prior to the date of payment of such defaulted interest) established by
notice given by mail by or on behalf of the Owner Trustee to the Holders not
less than fifteen (15) days preceding such subsequent Record Date.
The Owner Trustee agrees to pay to the Indenture Trustee for
distribution in accordance with Section 5.04 hereof (a) any and all indemnity
amounts received by the Owner Trustee which are payable by the Lessee to (i)
the Indenture Trustee in its individual capacity, (ii) the Subordination Agent
or (iii) each Liquidity Provider, in each case pursuant to Article 8 or 9 of
the Participation Agreement (it being acknowledged that the Lessee has been
instructed to pay such amounts to the Person or Persons entitled thereto) and
(b) the Owner Trustee's pro rata share of all amounts owed to each
Liquidity Provider by the Subordination Agent under each Liquidity Facility
other than amounts due as (i) repayments of the principal of advances
thereunder, and (ii) interest on Interest Drawings and Final Drawings
except to the extent included in Net Interest and Related Charges. As used
in this Section, the Owner Trustee's pro rata share means as of any time:
(A) with respect to all amounts other than Net Interest and
Related Charges, a fraction the numerator of which is the aggregate
principal balance then outstanding of the Certificates issued under
this Indenture (other than the Series C Certificate) and the
denominator of which is the aggregate principal balance of all
Certificates issued under this Indenture and the Related Indentures
(other than the Series C Certificate), plus
(B) with respect to all Net Interest and Related Charges (x)
if there exists a Payment Default under any Certificate issued under
this Indenture a fraction, the numerator of which is the aggregate
principal balance then outstanding of Certificates issued under this
Indenture (other than the Series C Certificate) and the denominator
of which is the aggregate principal balance then outstanding of all
Certificates issued under this Indenture and the Related Indentures
(other than the Series C Certificate) under which there exists a
Payment Default or (y) at all other times, zero.
As used in this Section, "Net Interest and Related Charges" means the sum of
(i) the amount, if any, by which interest payable to each Liquidity Provider
on any Interest Drawing and/or Final Drawing exceeds the amount which would be
payable if such drawings bore interest at the weighted average Past Due Rate
applicable to amounts in default on all Certificates plus (ii) any amounts
payable under Section 3.01, Section 3.02, Section 3.03, Section 3.09 or
Section 7.07 of each Liquidity Facility (or similar provisions of any
replacement Liquidity Facility) which result from any Interest Drawing or
Final Drawing. As used in this Section, a Payment Default when used in
connection with a Certificate issued hereunder or a Certificate issued under
any Related Indenture means a default in the payment of principal thereof or
interest thereon (which default has not been cured), other than solely because
of acceleration.
Section 2.05. Payments from Trust Indenture Estate Only. All
payments to be made by the Owner Trustee under this Indenture shall be made
only from the income and the proceeds from the Lessor's Estate to the extent
included in the Trust Indenture Estate and from any other amounts of the type
described in Section 5.01 hereof (but only to the extent actually received by
the Indenture Trustee) and only to the extent that the Owner Trustee shall
have sufficient income or proceeds from the Lessor's Estate to the extent
included in the Trust Indenture Estate (and such other amounts) to enable the
Indenture Trustee to make distributions of the amounts due in respect of the
Certificates in accordance with the terms hereof and thereof. Each Holder by
its acceptance of a Certificate agrees that it will look solely to the income
and proceeds from the Trust Indenture Estate (and such other amounts of the
type described in Section 5.01 hereof but only to the extent actually received
by the Indenture Trustee) to the extent available for distribution to it as
provided herein and that neither the Owner Participant, the Owner Trustee, SSB
nor the Indenture Trustee is personally liable to such Holder for any amounts
payable under this Indenture or such Certificate or for any amounts payable or
liability under any Certificate or this Indenture, except as expressly
provided herein in the case of SSB, the Owner Trustee or the Indenture
Trustee.
SSB is not personally liable to any Holder, the Lessee, the Owner
Participant or the Indenture Trustee for any amounts payable under this
Indenture or for any liability under this Indenture or the Certificates,
except as a result of SSB's gross negligence or willful misconduct, or as
otherwise expressly provided herein or in the Participation Agreement.
If (1) all or any part of the Lessor's Estate becomes the property of
a debtor subject to the reorganization provisions of the Bankruptcy Code, (2)
pursuant to such reorganization provisions the Owner Participant is required,
by reason of the Owner Participant being held to have recourse liability to
the debtor or the trustee of the debtor directly or indirectly, to make
payment on account of any amount payable as principal of or interest,
Make-Whole Premium or other amounts payable on the Certificates, and (3) the
Indenture Trustee actually receives any Recourse Amount which reflects any
payment by the Owner Participant on account of (2) above, then the Indenture
Trustee shall promptly refund to the Owner Participant such Recourse Amount.
Nothing contained in this paragraph shall prevent the Indenture Trustee from
enforcing any personal recourse obligation (and retaining the proceeds
thereof) of the Owner Participant under the Participation Agreement, or from
retaining any amount paid by the Owner Participant under Sections 5.01, 8.02
and 8.03 hereof.
Section 2.06. Registration, Transfer and Exchange. The Indenture
Trustee will keep, on behalf of the Owner Trustee, at each office or agency to
be maintained for the purpose as provided in Section 3.02 hereof a Register or
Registers on which, subject to such reasonable regulations as it may
prescribe, it will register, and will register the transfer of, Certificates
as provided in this Article. Such Register shall be in written form in the
English language or in any other form capable of being converted into such
form within a reasonable period of time.
Upon due presentation for registration of transfer of any Certificate
at any such office or agency, the Owner Trustee shall execute and the
Indenture Trustee shall authenticate and deliver in the name of the transferee
or transferees a new Certificate or Certificates of the same Series and
Maturity, principal amount and interest rate and in authorized denominations
for an equal aggregate principal amount; provided, that such Certificate being
transferred shall be cancelled in accordance with Section 2.08 hereof
simultaneously with the issuance of the new Certificate.
Any Certificate or Certificates may be exchanged for a Certificate or
Certificates of the same Series and Maturity and interest rate but in other
authorized denominations, in an equal aggregate principal amount.
Certificates to be exchanged shall be surrendered at any office or agency to
be maintained by the Indenture Trustee for the purpose as provided in Section
3.02 hereof, and the Owner Trustee shall execute and the Indenture Trustee
shall authenticate and deliver in exchange therefor the Certificate or
Certificates which the Holder making the exchange shall be entitled to
receive, bearing numbers not contemporaneously or previously outstanding.
All Certificates presented for registration of transfer, exchange,
prepayment or payment shall (if so required by the Owner Trustee or the
Indenture Trustee) be duly endorsed by, or be accompanied by a written
instrument or instruments of transfer in form satisfactory to the Owner
Trustee and the Indenture Trustee duly executed by the Holder or its attorney
duly authorized in writing and (except in the case of transfers pursuant to
Section 15.01 of the Participation Agreement) the Indenture Trustee may
require evidence satisfactory to it as to the compliance of any such transfer
with the Securities Act.
The Indenture Trustee may require payment from the Holder of a sum
sufficient to cover any tax or other governmental charge that may be
imposed in connection with any exchange or registration of transfer of
Certificates. No service charge shall be levied for any such transaction.
The Indenture Trustee shall not be required to exchange or register a
transfer of any Certificates (a) for a period of fifteen (15) days immediately
preceding the first mailing of notice of prepayment of such Certificates or
(b) with respect to which notice of prepayment has been given pursuant to
Section 6.03 hereof and such notice has not been revoked.
All Certificates issued upon any transfer or exchange of Certificates
shall be valid obligations of the Owner Trustee, evidencing the same debt, and
entitled to the same security and benefits under this Indenture, as the
Certificates surrendered upon such transfer or exchange.
Section 2.07. Mutilated, Defaced, Destroyed, Lost and Stolen
Certificates. In case any temporary or definitive Certificate shall become
mutilated, defaced or be apparently destroyed, lost or stolen, the Owner
Trustee in its discretion may execute, and upon the oral or written request of
any officer of SSB, the Indenture Trustee shall authenticate and deliver, a
new Certificate of like Maturity, principal amount and interest rate as the
Certificate being replaced, bearing a number not contemporaneously or
previously outstanding, in exchange and substitution for the mutilated or
defaced Certificate, or in lieu of and substitution for the Certificate so
apparently destroyed, lost or stolen. In the case of any Certificate so
apparently destroyed, lost or stolen, the applicant for a substitute
Certificate shall furnish to the Owner Trustee and to the Indenture Trustee
such security or indemnity as may be required by them to indemnify and defend
and to hold each of them harmless and evidence to their satisfaction of the
apparent destruction, loss or theft of such Certificate and of the ownership
thereof.
Upon the issuance of any substitute Certificate, the Owner Trustee or
the Indenture Trustee may require payment from the Holder of a sum sufficient
to cover any tax or other governmental charge that may be imposed in relation
thereto and any other reasonable expenses incurred in connection therewith.
In case any Certificate which has matured or is about to mature, or has been
called for prepayment in full, shall become mutilated or defaced or be
apparently destroyed, lost or stolen, the Owner Trustee may, instead of
issuing a substitute Certificate, pay or authorize the payment of the same
(without surrender thereof except in the case of a mutilated or defaced
Certificate), if the applicant of any Certificate so apparently destroyed,
lost or stolen, for such payment shall furnish to the Owner Trustee and to the
Indenture Trustee such security or indemnity as any of them may require to
hold each of them harmless and the applicant shall also furnish to the Owner
Trustee and the Indenture Trustee evidence to their satisfaction of the
apparent destruction, loss or theft of such Certificate and of the ownership
thereof.
Every substitute Certificate issued pursuant to the provisions of
this Section by virtue of the fact that any Certificate is apparently
destroyed, lost or stolen shall constitute an original additional contractual
obligation of the Owner Trustee, whether or not the apparently destroyed, lost
or stolen Certificate shall be enforceable at any time by anyone and shall be
entitled to all the security and benefits of (but shall be subject to all the
limitations of rights set forth in) this Indenture equally and proportionately
with any and all other Certificates duly authenticated and delivered
hereunder. All Certificates shall be held and owned upon the express
condition that, to the extent permitted by law, the foregoing provisions are
exclusive with respect to the replacement or payment of mutilated, defaced, or
apparently destroyed, lost or stolen Certificates and shall preclude any and
all other rights or remedies notwithstanding any law or statute existing or
hereafter enacted to the contrary with respect to the replacement or payment
of negotiable instruments or other securities without their surrender.
Section 2.08. Cancellation of Certificates; Destruction Thereof.
All Certificates surrendered for payment, prepayment, registration of
transfer or exchange, if surrendered to the Owner Trustee or any agent of
the Owner Trustee or the Indenture Trustee, shall be delivered to the
Indenture Trustee for cancellation or, if surrendered to the Indenture
Trustee, shall be cancelled by it; and no Certificates shall be issued in
lieu thereof except as expressly permitted by any of the provisions of this
Indenture. The Indenture Trustee shall destroy cancelled Certificates held
by it and deliver a certificate of destruction to the Owner Trustee. If
the Owner Trustee shall acquire any of the Certificates, such acquisition
shall not operate as a prepayment or satisfaction of the indebtedness
represented by such Certificates unless and until the same are delivered to
the Indenture Trustee for cancellation.
Section 2.09. Temporary Certificates. Pending the preparation of
definitive Certificates, the Owner Trustee may execute and, upon the oral or
written request of an officer of SSB, the Indenture Trustee shall authenticate
and deliver temporary Certificates (printed, lithographed, typewritten or
otherwise reproduced, in each case in form satisfactory to the Indenture
Trustee). Temporary Certificates shall be issuable as registered Certificates
without coupons, of any authorized denomination, and substantially in the form
of the definitive Certificates but with such omissions, insertions and
variations as may be appropriate for temporary Certificates, all as may be
determined by the Owner Trustee with the concurrence of the Indenture Trustee.
Temporary Certificates may contain such reference to any provisions of this
Indenture as may be appropriate. Every temporary Certificate shall be
executed by the Owner Trustee and, upon the oral or written request of an
authorized officer of the Owner Trustee, be authenticated by the Indenture
Trustee upon the same conditions and in substantially the same manner, and
with like effect, as the definitive Certificates. Without unreasonable delay
the Owner Trustee shall execute and shall furnish definitive Certificates and
thereupon temporary Certificates shall be surrendered in exchange therefor
without charge at any office or agency to be maintained by the Indenture
Trustee for the purpose pursuant to Section 3.02 hereof, and, upon the oral
or written request of an authorized officer of the Owner Trustee, the
Indenture Trustee shall authenticate and deliver in exchange for such
temporary Certificates an equal aggregate principal amount of definitive
Certificates of the same Series and Maturities and interest rates and in
authorized denominations. Until so exchanged, temporary Certificates shall be
entitled to the same security and benefits under this Indenture as definitive
Certificates.
Section 2.10. Termination of Interest in Trust Indenture Estate. A
Holder shall not, as such, have any further interest in, or other right with
respect to, the Trust Indenture Estate when and if the principal amount of and
Make-Whole Premium, if any, and interest on and other amounts due under all
Certificates held by such Holder and all other sums payable to such Holder
hereunder and under the other Operative Agreements shall have been paid in
full.
Section 2.11. Certificates in Respect of Replacement Aircraft. Upon
the execution and delivery of an Indenture and Security Agreement Supplement
covering a Replacement Airframe and/or Replacement Engine, as provided in
Section 9.09 hereof, each Certificate shall be deemed to have been issued in
connection with such Replacement Airframe and/or Replacement Engine and each
Certificate issued thereafter upon a transfer or exchange of, or as a
replacement for, a Certificate, shall be designated as having been issued in
connection with such Replacement Airframe and/or Replacement Engine, but
without any other change therein except as provided for in this Article II.
Section 2.12. Assumption of Obligations Under Certificates and Other
Operative Agreements. If, in accordance with and subject to the satisfaction
of the conditions set forth in Section 7.11 of the Participation Agreement,
the Lessee shall assume all of the obligations of the Owner Trustee hereunder,
under the Certificates and all other Operative Agreements, the Owner
Participant and the Owner Trustee shall be released and discharged from any
further obligations hereunder and under the Certificates and all other
Operative Agreements (except for any recourse obligations of the Owner
Participant or the Owner Trustee in its individual capacity with respect to
matters arising out of events occurring prior to such assumption).
Section 2.13. Establishment of Collateral Account. (a) The
Indenture Trustee shall, pursuant to the Collateral Account Control Agreement,
establish, or cause to be established, with State Street Bank and Trust
Company, who shall represent and warrant that it is a financial intermediary
(as defined in Section 8-313(4) of the Connecticut Uniform Commercial Code),
in its name as secured party hereunder an Eligible Deposit Account entitled
"First Security Bank, National Association, as secured party under the Trust
Indenture and Security Agreement (Federal Express Corporation Trust No.
N670FE) dated as of May 1, 1997, with the Owner Trustee referred to therein".
(b) If at any time the Collateral Account ceases to be an Eligible
Deposit Account, the Indenture Trustee shall within two (2) Business Days,
establish a new Collateral Account meeting the conditions specified in the
definition of Eligible Deposit Account, and shall transfer any cash or any
investments in the Collateral Account to such new Collateral Account.
(c) The Indenture Trustee shall have exclusive dominion and control
of the Collateral Account and all funds therein, and shall make withdrawals
from the Collateral Account only in accordance with this Indenture.
(d) The Collateral Account Control Agreement shall require State
Street Bank and Trust Company to send confirmation to the Indenture Trustee
and the Lessee that it has credited the Specified Investments to the
Collateral Account and to make appropriate entries on its books identifying
the Specified Investments as pledged to the Indenture Trustee.
Section 2.14. Investment of Funds on Deposit in the Collateral
Account. (a) Funds deposited in the Collateral Account shall be invested and
reinvested by the Indenture Trustee, subject to Section 17.02 of the
Participation Agreement, at the risk of the Owner Trustee, in Specified
Investments selected by the Lessee and approved by the Indenture Trustee for
the account of the Owner Trustee in accordance with Section 2.14(b) below;
provided, however, that if Specified Investments meeting the requirements of
Section 2.14(b) are not available on any day on which funds are to be invested
as contemplated by the preceding provisions of this Section 2.14(a), the
Indenture Trustee may leave such funds in the Collateral Account uninvested
until the earliest of (i) the date on which an appropriate Specified
Investment becomes available, (ii) the Delivery Date and (iii) the Cut-Off
Date. The Indenture Trustee shall maintain possession of the negotiable
instruments or securities, if any, evidencing such Specified Investments and,
in the case of any Specified Investments in book-entry form, such Specified
Investments shall be credited to an account of the Indenture Trustee or a
financial intermediary with the applicable Federal Reserve Bank; provided,
however, if the account is credited to the financial intermediary, the
financial intermediary shall make written confirmation thereof to the
Indenture Trustee and make an appropriate entry on its books identifying the
Specified Investments as pledged to the Indenture Trustee. All proceeds of
and any income, interest and other payments and distributions on or with
respect to any Specified Investments shall be deposited in or credited to the
Collateral Account and thereafter shall be held, invested and applied by the
Indenture Trustee in accordance with this Indenture. The Indenture Trustee
shall promptly notify the Owner Trustee and the Lessee of any Losses.
(b) On the Certificate Closing Date, the Indenture Trustee shall
invest the amount deposited in the Collateral Account pursuant to Section
2.01(c) of the Participation Agreement in Specified Investments selected by
the Lessee and approved by the Indenture Trustee for the account of the Owner
Trustee which mature on June 2, 1997. If the Delivery Date is postponed
pursuant to Section 3.02(c) or Section 3.05 of the Participation Agreement,
the proceeds of the Specified Investments referred to in the preceding
sentence may be invested in Specified Investments which mature within 14 days
after the rescheduled Delivery Date. If no Delivery Date occurs, then any
Specified Investment shall mature no later than the 15th day after the Cut-Off
Date.
(c) If for any reason the Indenture Trustee shall be required to
make any distributions of the Liquid Collateral prior to the maturity date of
any Specified Investment, the Indenture Trustee shall cause the same to be
sold in accordance with standard commercial practices, and the Lessee, for the
account of the Owner Trustee, shall forthwith compensate the Indenture Trustee
for any Losses as provided in Section 17.02(a) of the Participation Agreement.
(d) Pursuant to Section 17.02(b) of the Participation Agreement,
interest payable on the Certificates during the period in which funds are on
deposit in the Collateral Account shall be paid by the Lessee.
Section 2.15. Release of Debt Portion and Lien on the Collateral
Account and the Liquid Collateral on Delivery Date. (a) Subject to the
satisfaction or waiver of the conditions precedent to the Indenture Trustee's
obligations set forth in Section 4.02 of the Participation Agreement, on the
Delivery Date the Indenture Trustee shall release from the Collateral Account
an amount of Liquid Collateral, subject to the proviso in Section
3.02(a)(C) of the Participation Agreement, equal to the lesser of (A) the
Debt Portion and (B) the amount actually in the Collateral Account on the
Delivery Date. Such amount so released, together with the amount of any
Losses received from the Lessee pursuant to Section 17.02(a) of the
Participation Agreement, shall be used to finance a portion of the Purchase
Price payable by (x) the Owner Trustee as contemplated by Section 3.02(a)
of the Participation Agreement or (y) if the fifth sentence of Section
3.05(a) of the Participation Agreement shall be applicable, by the Lessee
as contemplated by such sentence. Any amount remaining in the Collateral
Account after such release (net of any uncompensated Losses) shall be
remitted by the Indenture Trustee on behalf of the Owner Trustee to the
Lessee pursuant to Section 3.02(a)(C) of the Participation Agreement.
(b) The Lien of this Indenture on the Collateral Account and the
Liquid Collateral shall terminate on the Delivery Date following the transfer
of amounts described in Section 3.02(a)(C) of the Participation Agreement.
Section 2.16. Cut-Off Date. In the case of a prepayment under
Section 6.02(a)(vi) hereof, the Indenture Trustee shall release from the
Collateral Account all amounts held in the Collateral Account on such date.
Such amount so released, together with the amount of any Losses received from
the Lessee pursuant to Sections 17.02(a) and 17.02(c) of the Participation
Agreement, shall be applied to pay amounts due under Section 6.02(b)(1) hereof
on the Cut-Off Date, and any amount (net of any uncompensated Losses)
remaining after such release and application shall be remitted by the
Indenture Trustee, on behalf of the Owner Trustee, to the Lessee.
Section 2.17. Subordination. (a) The Owner Trustee and, by
acceptance of its Certificates of any Series, each Holder of such Series,
hereby agree that no payment or distribution shall be made on or in respect of
the Secured Obligations owed to such Certificate Holder of such Series,
including any payment or distribution of cash, property or securities after
the commencement of a proceeding of the type referred to in clause (v), (vi)
or (vii) of Section 7.01 hereof, except as expressly provided in Article V
hereof.
(b) By the acceptance of its Certificates of any Series
(other than Series A), each Holder of such Series agrees that in the event
that such Holder, in its capacity as a Holder, shall receive any payment or
distribution on any Secured Obligations in respect of such Series which it is
not entitled to received under this Section 2.17 or Article V hereof, it will
hold any amount so received in trust for the Senior Holder (as defined in
Section 2.17(c) hereof) and will forthwith turn over such payment to the
Indenture Trustee in the form received to be applied as provided in Article V
hereof.
(c) As used in this Section 2.17, the term "Senior Holder"
shall mean, (i) the Holders of Series A Certificates until the Secured
Obligations in respect of Series A Certificates have been paid in full, (ii)
after the Secured Obligations in respect of Series A Certificates have been
paid in full, the Holders of Series B Certificates until the Secured
Obligations in respect of Series B Certificates have been paid in full and
(iii) after the Secured Obligations in respect of Series B Certificates have
been paid in full, the Holders of Series C Certificates until the Secured
Obligations in respect of Series C Certificates have been paid in full.
ARTICLE III
COVENANTS
Section 3.01. Payment of Principal, Make-Whole Premium and Interest.
The Owner Trustee covenants and agrees that it will, subject to Section 2.05
hereof, duly and punctually pay or cause to be paid the principal of, and
interest and Make-Whole Premium, if any, and all other amounts due on, each of
the Certificates and under this Indenture at the place or places, at the
respective times and in the manner provided in this Indenture and in the
Certificates.
Principal and interest and other amounts due hereunder or under the
Certificates shall be payable in dollars on the due date thereof, to the
Indenture Trustee at the Corporate Trust Department (or such other account at
such other financial institution as the Indenture Trustee may designate for
the purpose). If any amount payable under the Certificates or under this
Indenture falls due on a day which is not a Business Day, then such sum shall
be payable on the next succeeding Business Day, without (provided that payment
is made on such next succeeding Business Day) additional interest thereon for
the period of such extension.
Section 3.02. Offices for Payments, etc. So long as any of the
Certificates remain outstanding, the Indenture Trustee will maintain the
following: (a) an office or agency where the Certificates may be presented
for payment and (b) a facility or agency in New York, New York where the
Certificates may be presented for registration of transfer and for exchange
and for prepayment as provided in this Indenture (the "Registrar"). The
Registrar shall keep a register (the "Register") with respect to the
Certificates and their transfer and exchange. The Indenture Trustee may
appoint one or more co-registrars ("Co-Registrars") for the Certificates and
may terminate any such appointment at any time upon written notice. The term
"Registrar" includes any Co-Registrar.
The Indenture Trustee shall initially act as Registrar.
Section 3.03. Appointment to Fill a Vacancy in Office of Indenture
Trustee. The Owner Trustee, whenever necessary to avoid or fill a vacancy in
the office of Indenture Trustee, will, with the consent of the Lessee,
appoint, in the manner provided in Section 12.02 hereof, an Indenture Trustee,
so that there shall at all times be an Indenture Trustee hereunder.
Section 3.04. Paying Agents. Whenever the Indenture Trustee in its
sole discretion shall appoint a paying agent (the "Paying Agent"), it will
cause the Paying Agent to execute and deliver an instrument in which the
Paying Agent shall agree with the Indenture Trustee, subject to the provisions
of this Section:
(a) that it will hold all sums received by it as such agent for the
payment of the principal of, and interest and Make-Whole Premium, if any,
on the Certificates (whether such sums have been paid to it by the
Indenture Trustee or the Owner Trustee) in trust for the benefit of the
Holders or of the Indenture Trustee, and
(b) that it will give the Indenture Trustee notice of any failure by
the Owner Trustee to make any payment of the principal of or interest or
Make-Whole Premium, if any, on the Certificates when the same shall be due
and payable.
Anything in this Section to the contrary notwithstanding, the
agreements to hold sums in trust as provided in this Section are subject to
the provisions of Sections 14.03 and 14.04 hereof.
Section 3.05. Covenants of SSB and the Owner Trustee.
(a) SSB hereby covenants and agrees to perform its covenants set
forth in Sections 7.04(b) and 7.04(c) of the Participation Agreement.
(b) The Owner Trustee hereby covenants and agrees as follows:
(i) in the event a Responsible Officer of the Owner Trustee shall
have actual knowledge of an Indenture Event of Default, an Indenture
Default or an Event of Loss, the Owner Trustee will give prompt written
notice of such Indenture Event of Default, Indenture Default or Event of
Loss to the Indenture Trustee, the Lessee and the Owner Participant;
(ii) the Owner Trustee will furnish to the Indenture Trustee,
promptly upon receipt thereof, duplicates or copies of all reports,
notices, requests, demands, certificates, financial statements and other
instruments furnished to the Owner Trustee under the Lease, including,
without limitation, a copy of each report or notice from an insurer or
an insurance broker received pursuant to Article 13 of the Lease, to the
extent that the same shall not have been furnished to the Indenture
Trustee;
(iii) the Owner Trustee will not enter into any business or other
activity other than the business of owning the Aircraft, the leasing
thereof to the Lessee and the carrying out of the transactions contemplated
hereby and by the Lease, the Participation Agreement, the Trust Agreement
and the other Indenture Documents; and
(iv) except as contemplated by the Operative Agreements, the Owner
Trustee will not contract for, create, incur or assume any debt, and will
not guarantee (directly or indirectly or by an instrument having the effect
of assuring another's payment or performance on any obligation or
capability of so doing, or otherwise), endorse or otherwise take action to
become contingently liable, directly or indirectly, in connection with the
debt of any other Person.
Section 3.06. [Reserved]
Section 3.07. Disposal of Trust Indenture Estate. At any time and
from time to time any part of the Trust Indenture Estate may be sold or
disposed of in accordance with the provisions of this Indenture and the Lease.
The Indenture Trustee shall, from time to time, release any part of the Trust
Indenture Estate so sold or disposed of or as to which an Event of Loss has
occurred or as to which the Lease has been terminated from the Lien of this
Indenture. In addition, to the extent that such property constitutes an
Airframe or Engine, the further requirements of Section 9.08 hereof shall be
complied with.
Section 3.08. No Representations or Warranties as to Aircraft or
Documents. NEITHER THE INDENTURE TRUSTEE NOR THE OWNER TRUSTEE NOR SSB NOR
THE OWNER PARTICIPANT MAKES OR SHALL BE DEEMED TO HAVE MADE ANY REPRESENTATION
OR WARRANTY, EXPRESS OR IMPLIED, AS TO THE TITLE, AIRWORTHINESS, WORKMANSHIP,
VALUE, CONDITION, DESIGN, COMPLIANCE WITH SPECIFICATIONS, MERCHANTABILITY OR
FITNESS FOR ANY PARTICULAR USE OR PURPOSE OF THE AIRCRAFT OR ANY ENGINE, AS TO
THE ABSENCE OF ANY INFRINGEMENT OF ANY PATENT, TRADEMARK OR COPYRIGHT, AS TO
THE ABSENCE OF OBLIGATIONS BASED ON STRICT LIABILITY IN TORT OR ANY OTHER
REPRESENTATION OR WARRANTY WITH RESPECT TO THE AIRCRAFT OR ANY ENGINE
WHATSOEVER, except that SSB warrants that on the Delivery Date (a) the Owner
Trustee shall have received whatever title was conveyed to it by AVSA, and (b)
the Aircraft shall be free and clear of Lessor's Liens attributable to SSB.
Neither SSB, the Indenture Trustee nor the Owner Participant makes or shall be
deemed to have made any representation or warranty as to the validity,
legality or enforceability of this Indenture, the Trust Agreement, the
Certificates or any Indenture Document or as to the correctness of any
statement contained in any thereof, except for the representations and
warranties of SSB and the Indenture Trustee made under this Indenture or in
the Participation Agreement or of the Owner Participant made under the
Participation Agreement.
Section 3.09. Further Assurances; Financing Statements. At any time
and from time to time, upon the request of the Indenture Trustee or the
Lessee, at the expense of the Lessee, the Owner Trustee shall promptly and
duly execute and deliver any and all such further instruments and documents as
may be specified in such request and as are necessary or advisable to perfect,
preserve or protect the Liens and assignments created or intended to be
created hereby, or to obtain for the Indenture Trustee the full benefit of
the specific rights and powers granted herein, including, without
limitation, the execution and delivery of Uniform Commercial Code financing
statements and continuation statements with respect thereto, or similar
instruments relating to the perfection of the Liens or assignments created
or intended to be created hereby.
ARTICLE IV
HOLDER LISTS
Section 4.01. Holder Lists; Ownership of Certificates. (a) The
Indenture Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
the Holders. If the Indenture Trustee is not the Registrar, the Registrar
shall furnish to the Indenture Trustee semi-annually not more than ten (10)
days after each Record Date, as of such Record Date, or at such other times as
the Indenture Trustee may request in writing, a list, in such form and as of
such date as the Indenture Trustee may reasonably require, containing all the
information in the possession or control of the Registrar as to the names and
addresses of the Holders and the amounts and Maturities of the Certificates
held by such Holders.
(b) Ownership of the Certificates shall be proved by the Register
kept by the Registrar.
ARTICLE V
RECEIPT, DISTRIBUTION AND APPLICATION OF
INCOME FROM THE TRUST INDENTURE ESTATE
Section 5.01. Basic Rent Distribution. Except as otherwise provided
in Section 5.03 hereof, each installment of Basic Rent, any payment of
interest on overdue installments of Basic Rent, any payment received by the
Indenture Trustee pursuant to Section 8.03(a) hereof and any payment received
by the Indenture Trustee pursuant to Section 17.02(b) or 17.02(c) of the
Participation Agreement shall be distributed by the Indenture Trustee no later
than the time herein provided in the following order of priority:
first, (i) so much of such installment or payment as shall be
required to pay in full the aggregate amount of the payment or
payments of Principal Amount and interest and other amounts (as
well as any interest on any overdue Principal Amount and, to the
extent permitted by applicable law, on any overdue interest and
any other overdue amounts) then due under all Series A
Certificates shall be distributed to the Holders of Series A
Certificates ratably, without priority of one over the other, in
the proportion that the amount of such payment or payments then
due under each Series A Certificate bears to the aggregate amount
of the payments then due under all Series A Certificates;
(ii) after giving effect to paragraph (i) above, so much of
such installment or payment as shall be required to pay in full
the aggregate amount of the payment or payments of Principal
Amount and interest and other amounts (as well as any interest on
any overdue Principal Amount and, to the extent permitted by
applicable law, on any overdue interest and any other overdue
amounts) then due under all Series B Certificates shall be
distributed to the Holders of Series B Certificates ratably,
without priority of one over the other, in the proportion that
the amount of such payment or payments then due under each
Series B Certificate bears to the aggregate amount of the
payments then due under all Series B Certificates; and
(iii) after giving effect to paragraph (ii) above, so much of
such installment or payment as shall be required to pay in full
the aggregate amount of the payment or payments of Principal
Amount and interest and other amounts (as well as any interest on
any overdue Principal Amount and, to the extent permitted by
applicable law, on any overdue interest and any other overdue
amounts) then due under all Series C Certificates shall be
distributed to the Holders of Series C Certificates ratably,
without priority of one over the other, in the proportion that
the amount of such payment or payments then due under each
Series C Certificate bears to the aggregate amount of the
payments then due under all Series C Certificates; and
second, the balance if any of such installment or payment remaining
thereafter shall be distributed to the Owner Trustee, or as the
Owner Trustee may request, for distribution pursuant to the Trust
Agreement.
Section 5.02. Event of Loss and Replacement; Prepayment. (a)
Except as otherwise provided in Section 5.03 hereof, any payment received by
the Indenture Trustee as the result of an Event of Loss with respect to the
Aircraft (including pursuant to Section 11.03(e) of the Lease, but, in the
case of said Section 11.03(e), subject to the time limits specified therein)
or as the result of, or in connection with any event under the Lease giving
rise to, a prepayment pursuant to Section 6.02 hereof, shall be promptly
distributed by the Indenture Trustee in the following order of priority:
first, to reimburse the Indenture Trustee for any costs or expenses
reasonably incurred in connection with such prepayment,
second, (i) to pay the amounts specified in paragraph (i) of clause
"second" of Section 5.03 hereof then due and payable in respect
of the Series A Certificates;
(ii) after giving effect to paragraph (i) above, to pay the
amounts specified in paragraph (ii) of clause "second" of Section
5.03 hereof then due and payable in respect of the Series B
Certificates; and
(iii) after giving effect to paragraph (ii) above, to pay the
amounts specified in paragraph (iii) of clause "second" of
Section 5.03 hereof then due and payable in respect of the Series
C Certificates;
provided that payments pursuant to this clause "second" shall be
made without the payment of Make-Whole Premium except in the
particular circumstances provided in Section 6.02(b) hereof; and
third, as provided in clause "third" of Section 5.03 hereof;
provided that if a Replacement Airframe shall be substituted for an Airframe
subject to an Event of Loss as provided in Section 11.03 of the Lease and
Section 9.08 hereof, any proceeds which result from such Event of Loss and are
paid to the Indenture Trustee shall be held by the Indenture Trustee as part
of the Trust Indenture Estate and, unless otherwise applied pursuant to
Section 5.01 or 5.03 hereof, such proceeds shall be released to the Lessee
upon the release of such damaged Airframe and the replacement thereof as
herein provided.
(b) Any amounts received directly or indirectly from any
governmental authority, insurer or other party pursuant to any provision of
Article 11 or 13 of the Lease as the result of loss or damage not
constituting an Event of Loss (x) with respect to the Aircraft, or as a
result of such loss or damage constituting an Event of Loss if and to the
extent that such amounts would at the time be required to be paid to the
Lessee pursuant to said Article 11 or 13 but for the fact that a Payment
Default, Bankruptcy Default or an Event of Default shall have occurred and
be continuing or (y) are pledged to the Lessor as security in connection
with an Event of Loss in accordance with Section 11.03(e) of the Lease,
shall be held by the Indenture Trustee as security for the obligations of
the Lessee under the Lease and the Participation Agreement and shall be
invested in accordance with the terms of Section 5.08 hereof and at such
time as the conditions for payment to the Lessee specified in said Article
11 or 13, as the case may be, shall be fulfilled and there shall not be
continuing any Payment Default, Bankruptcy Default or Event of Default,
such amount, and the proceeds of any investment thereof, shall, to the
extent not theretofore applied, be paid to the Lessee to the extent
provided in the Lease.
Section 5.03. Payment After Indenture Event of Default, etc. Except
as otherwise provided in Sections 5.02(b), 5.04(b), 5.04(c) and 5.05 hereof,
all payments (other than Excepted Payments) received and all amounts held or
realized by the Indenture Trustee after an Indenture Event of Default shall
have occurred and so long as such an Indenture Event of Default shall be
continuing, and after the Certificates shall have become due and payable as
provided in Section 7.02(b) or (c) hereof, shall be promptly distributed by
the Indenture Trustee in the following order of priority:
first, so much of such payments or amounts as shall be required to
reimburse the Indenture Trustee for any tax, expense, charge or
other loss (including, without limitation, all amounts to be
expended at the expense of, or charged upon the tolls, rents,
revenues, issues, products and profits of, the property included
in the Trust Indenture Estate pursuant to Section 7.03(b) hereof)
incurred by the Indenture Trustee (to the extent not previously
reimbursed) (including, without limitation, the expenses of any
sale, taking or other proceeding, attorneys' fees and expenses,
court costs, and any other expenditures incurred or expenditures
or advances made by the Indenture Trustee or the Holders in the
protection, exercise or enforcement of any right, power or remedy
or any damages sustained by the Indenture Trustee or the Holders,
liquidated or otherwise, upon such Indenture Event of Default)
shall be applied by the Indenture Trustee as between itself and
the Holders in reimbursement of such expenses;
second, (i) so much of such payments or amounts remaining as shall be
required to pay in full the aggregate unpaid Principal Amount of
all Series A Certificates, and the accrued but unpaid interest
and other amounts due thereon and all other Secured Obligations
(other than Make-Whole Premium) in respect of the Series A
Certificates to the date of distribution, shall be distributed to
the Holders of Series A Certificates, and in case the aggregate
amount so to be distributed shall be insufficient to pay in full
as aforesaid, then ratably, without priority of one over the
other, in the proportion that the aggregate unpaid Principal
Amount of all Series A Certificates held by each holder plus the
accrued but unpaid interest and other amounts due hereunder or
thereunder (other than Make-Whole Premium) to the date of
distribution, bears to the aggregate unpaid Principal Amount of
all Series A Certificates held by all such holders plus the
accrued but unpaid interest and other amounts due thereon (other
than Make-Whole Premium) to the date of distribution;
(ii) after giving effect to paragraph (i) above, so much of
such payments or amounts remaining as shall be required to pay in
full the aggregate unpaid Principal Amount of all Series B
Certificates, and the accrued but unpaid interest and other
amounts due thereon and all other Secured Obligations (other than
Make-Whole Premium) in respect of the Series B Certificates to
the date of distribution, shall be distributed to the Holders of
Series B Certificates, and in case the aggregate amount so to be
distributed shall be insufficient to pay in full as aforesaid,
then ratably, without priority of one over the other, in the
proportion that the aggregate unpaid Principal Amount of all
Series B Certificates held by each holder plus the accrued but
unpaid interest and other amounts due hereunder or thereunder
(other than Make-Whole Premium) to the date of distribution,
bears to the aggregate unpaid Principal Amount of all Series B
Certificates held by all such holders plus the accrued but unpaid
interest and other amounts due thereon (other than Make-Whole
Premium) to the date of distribution; and
(iii) after giving effect to paragraph (ii) above, so much of
such payments or amounts remaining as shall be required to pay in
full the aggregate unpaid Principal Amount of all Series C
Certificates, and the accrued but unpaid interest and other
amounts due thereon and all other Secured Obligations (other than
Make-Whole Premium) in respect of the Series C Certificates to
the date of distribution, shall be distributed to the Holders of
Series C Certificates, and in case the aggregate amount so to be
distributed shall be insufficient to pay in full as aforesaid,
then ratably, without priority of one over the other, in the
proportion that the aggregate unpaid Principal Amount of all
Series C Certificates held by each holder plus the accrued but
unpaid interest and other amounts due hereunder or thereunder
(other than Make-Whole Premium) to the date of distribution,
bears to the aggregate unpaid Principal Amount of all Series C
Certificates held by all such holders plus the accrued but unpaid
interest and other amounts due thereon (other than Make-Whole
Premium) to the date of distribution;
(it being understood that amounts payable under this clause
"second" shall not include Make-Whole Premium); and
third, the balance, if any of such payments or amounts remaining
thereafter shall be distributed to the Owner Trustee for
distribution pursuant to the Trust Agreement.
Section 5.04. Certain Payments. (a) Except as otherwise provided
in this Indenture, any payments received by the Indenture Trustee which are to
be applied according to any provision in any other Indenture Document shall be
applied thereunder in accordance therewith.
(b) The Indenture Trustee will distribute, promptly upon receipt,
any indemnity or other payment received by it from the Owner Trustee or the
Lessee in respect of (i) the Indenture Trustee in its individual capacity,
(ii) the Subordination Agent, (iii) each Liquidity Provider, and (iv) the
Pass Through Trustee, in each case whether pursuant to Article 8 or 9 of
the Participation Agreement or as Supplemental Rent, directly to the Person
(which may include the Indenture Trustee) entitled thereto. Any payment
received by the Indenture Trustee under clause (b) of the last paragraph of
Section 2.04 shall be distributed to the Subordination Agent to be
distributed in accordance with the terms of the Intercreditor Agreement.
(c) Notwithstanding anything to the contrary contained herein, any
sums received by the Indenture Trustee which constitute Excepted Payments
shall be distributed promptly upon receipt by the Indenture Trustee directly
to the Person or Persons entitled thereto.
Section 5.05. Other Payments. Any payments received by the
Indenture Trustee for which no provision as to the application thereof is
made elsewhere in this Indenture or in any other Indenture Document
(including without limitation Article 9 of the Lease) shall be distributed
by the Indenture Trustee (a) to the extent received or realized at any time
prior to the payment in full of all obligations to the Holders, in the
order of priority specified in Section 5.01 hereof, and (b) to the extent
received or realized at any time after payment in full of all obligations
to the Holders, in the following order of priority:
first, in the manner provided in clause "first" of Section 5.03 hereof
and
second, in the manner provided in clause "third" of Section 5.03 hereof.
Section 5.06. Payments to Owner Trustee. Any amounts distributed
hereunder by the Indenture Trustee to the Owner Trustee shall be paid to the
Owner Trustee by wire transfer of immediately available funds of the type
received by the Indenture Trustee at such office and to such account or
accounts of such entity or entities as shall be designated by notice from the
Owner Trustee to the Indenture Trustee from time to time. The Owner Trustee
hereby notifies the Indenture Trustee that unless and until the Indenture
Trustee receives notice to the contrary from the Owner Trustee, all amounts to
be distributed to the Owner Trustee hereunder for distribution in accordance
with the Trust Agreement shall be distributed by wire transfer of immediately
available funds of the type received by the Indenture Trustee to such account
of the Owner Participant as may be specified pursuant to Section 2.06 of the
Trust Agreement.
Section 5.07. Application of Payments. Each payment of principal of
and interest or other amounts due on each Certificate shall, except as
otherwise provided herein, be applied,
first, to the payment of interest on such Certificate due and payable to
the date of such payment, as provided in such Certificate, as
well as any interest on overdue principal and Make-Whole Premium,
if any, and, to the extent permitted by law, interest and other
amounts due thereunder,
second, to the payment of any other amount (other than the principal of
such Certificate) due hereunder to the Holder of such Certificate
or under such Certificate,
third, to the payment of the principal of such Certificate if then due
hereunder or under such Certificate and
fourth, the balance, if any remaining thereafter, to the payment of the
principal of such Certificate remaining unpaid (provided that
such Certificate shall not be subject to prepayment without the
consent of the affected Holder except as permitted by Sections
6.02, 6.06 and 8.02 hereof); provided that, solely for the
purpose of determining whether an Indenture Event of Default
shall have occurred and be continuing, each such payment shall be
deemed applied in the following order of priority: first, in the
manner provided in clause "first" above, second, in the manner
provided in clause "third" above, third, in the manner provided
in clause "second" above and fourth, in the manner provided in
clause "fourth" above.
Section 5.08. Investment of Amounts Held by Indenture Trustee.
Amounts held by the Indenture Trustee pursuant to Section 5.02(b) hereof or
pursuant to any provision of any Indenture Document providing for investment
by the Indenture Trustee of sums pursuant to Section 23.01 of the Lease or
this Section 5.08 shall be invested by the Indenture Trustee from time to time
in securities selected by (i) so long as no Event of Default shall have
occurred and be continuing, the Lessee (and in the absence of written
direction by the Lessee, the Indenture Trustee shall invest such monies in
direct obligations of the United States of America) or (ii) so long as an
Event of Default shall have occurred and be continuing, the Indenture Trustee
and in each case shall be of the type listed in clauses (i) through (iv) of
Section 23.01 of the Lease. Unless otherwise expressly provided in this
Indenture, any income realized as a result of any such investment, net of the
Indenture Trustee's reasonable fees and expenses in making such investment,
shall be held and applied by the Indenture Trustee in the same manner as the
principal amount of such investment is to be applied and any losses, net of
earnings and such reasonable fees and expenses, shall be charged against the
principal amount invested. The Lessee shall be responsible for and will
promptly pay to the Indenture Trustee or the Lessor, as the case may be, on
demand, the amount of any loss realized as the result of any such investment
(together with any fees, commissions and other costs and expenses, if any,
incurred by the Indenture Trustee or the Lessor in connection with such
investment), such amount to be disposed of in accordance with the terms hereof
or the Lease, as the case may be. The Indenture Trustee shall not be liable
for any loss resulting from any investment made by it or any investment sold
by it under this Indenture in accordance with instructions from the Lessee
other than by reason of its willful misconduct or gross negligence, and any
such investment may be sold (without regard to its maturity) by the Indenture
Trustee without instructions whenever the Indenture Trustee reasonably
believes such sale is necessary to make a distribution required by this
Indenture.
Unless otherwise confirmed in writing, an account statement delivered
by the Indenture Trustee to the Owner Trustee (with a copy to the Lessee)
shall be deemed written confirmation by the Owner Trustee that the investment
transactions identified therein accurately reflect the investment directions
given to the Indenture Trustee by or on behalf of the Lessee, unless the
Lessee notifies the Indenture Trustee in writing to the contrary within 30
days of the date of receipt of such statement.
Section 5.09. Withholding Taxes. The Indenture Trustee shall
withhold any Taxes required to be withheld, except to the extent that the
Holder has furnished evidence satisfactory to the Indenture Trustee of any
exemption from withholding claimed by such Holder and under no circumstances
shall the failure of any such Holder to receive any amounts so withheld
constitute an Indenture Event of Default. Notwithstanding any provision to
the contrary in Sections 5.01 through 5.05 hereof and subject to Article 8 of
the Participation Agreement, if the Lessee is required to pay any such Tax, or
any interest or penalty thereon, or to indemnify the Owner Participant or the
Owner Trustee with respect thereto pursuant to Section 8.01(c) of the
Participation Agreement, the Lessee shall be entitled to receive any payments
otherwise distributable to the Holder of any Certificate who was subject to
such Tax pursuant to Sections 5.01 to 5.05 hereof until the amounts the Lessee
shall have so paid in respect of any such Tax shall have been recovered in
full by the Lessee.
ARTICLE VI
PREPAYMENT OF CERTIFICATES
Section 6.01. No Prepayment Prior to Maturity. Except as provided
in Sections 6.02, 6.06 and 8.02 hereof, the Certificates may not be prepaid
prior to their respective Maturities.
Section 6.02. Prepayment of Certificates. (a) The Outstanding
Certificates shall be prepaid in full (and not in part):
(i) If an Event of Loss occurs with respect to the Airframe or with
respect to the Airframe and the Engines or engines then installed on the
Airframe (unless pursuant to Section 11.03 of the Lease and Section 9.08
hereof replacement equipment is substituted therefor).
(ii) If the Lessee, pursuant to Section 4.02(a) of the Lease, gives
notice of purchase of the Aircraft (and Section 2.12 hereof shall not be
applicable in connection with such purchase), but subject to Section
6.02(c) below.
(iii) If the Owner Participant or the Owner Trustee on behalf of the
Owner Participant gives notice of prepayment to the Indenture Trustee
pursuant to Section 8.02 hereof (unless such notice is revoked in
accordance with such Section).
(iv) If the Lessee, pursuant to Section 10.01 of the Lease, gives
notice of a voluntary termination for obsolescence or surplus, but subject
to Section 6.02(c) below.
(v) Pursuant to Section 15.01 of the Participation Agreement in
connection with a refinancing of the Certificates, but subject to Section
6.02(c) below.
(vi) As contemplated by Section 2.16 hereof and Section 3.05(b)
of the Participation Agreement if the Delivery Date has not occurred on
or prior to the Cut-Off Date.
(vii) At the option of the Owner Trustee with the prior written
consent of the Lessee and the Owner Participant upon not less than 25 days'
prior written notice.
(b) In the event of a prepayment of the Certificates pursuant to
Sections 6.02(a)(ii), (iv) and (v) above, the Owner Trustee, having received
notice from the Lessee in accordance with and subject to the terms of Section
4.02(a) or 10.01 of the Lease or Article 15 of the Participation Agreement, as
the case may be, shall give irrevocable (subject to Section 6.02(c) hereof)
written notice to the Indenture Trustee and to the Holders of all of the
Certificates specifying the Business Day on which the Certificates shall be
prepaid. In the case of a prepayment of the Certificates pursuant to Section
6.02(a)(i) above, the Certificates shall be prepaid in full on the Loss
Payment Date as defined in Section 11.02 of the Lease. In the case of a
prepayment of the Certificates pursuant to Section 6.02(a)(iii) above, the
Certificates shall be prepaid in full on the date so designated in the notice
referred to in Section 8.02 hereof. In the case of a prepayment of the
Certificates pursuant to Section 6.02(a)(ii) or (iv) above, the Certificates
shall be prepaid in full on the Termination Date. In the case of a prepayment
of the Certificates pursuant to Section 6.02(a)(v) above, the Certificates
shall be prepaid on the effective date of the Refinancing. In the case of a
prepayment of the Certificates pursuant to Section 6.02(a)(vi) above, the
Certificates shall be prepaid on the 15th day following the Cut-Off Date. In
the case of a prepayment of the Certificates pursuant to Section 6.02(a)(vii)
above, the Certificates shall be prepaid on the date designated in the notice
referred to therein. The day on which the Certificates are to be prepaid
pursuant to this Section 6.01(b) is herein referred to as the "Prepayment
Date".
On or prior to the Prepayment Date, immediately available funds shall
be deposited with the Indenture Trustee in an amount in respect of the
Certificates equal to:
(1) (i) if such prepayment is made under any provision of Section
6.02 hereof on or after the applicable Premium Termination Date, or (ii)
if such prepayment is made prior to the applicable Premium Termination
Date pursuant to Section 6.02(a)(i), 6.02(a)(iii) (if clause (i) of the
first sentence of Section 8.02(a) hereof is applicable) or 6.02(a)(vi)
above, the sum of (A) the aggregate principal amount of such
Certificates then Outstanding, (B) accrued interest on the Certificates
to the Prepayment Date and (C) all other aggregate sums due the
Indenture Trustee hereunder or under the Participation Agreement or the
Lease, but excluding any Make-Whole Premium or other premium or penalty,
or
(2) if such prepayment is made prior to the applicable Premium
Termination Date pursuant to Section 6.02(a)(ii), 6.02(a)(iii) (if clause
(ii) of the first sentence of Section 8.02(a) hereof is applicable),
6.02(a)(iv), 6.02(a)(v) or 6.02(a)(vii) above, the sum of the amounts
specified in clauses (A), (B) and (C) of the preceding clause (1) plus any
Make-Whole Premium payable in respect of all Certificates with respect to
which the Premium Termination Date therefor has not occurred
(the aggregate amount required to be paid pursuant to this sentence being
herein referred to as the "Prepayment Price").
(c) If, pursuant to the last paragraph of Section 10.01(f) of the
Lease, no Termination Date shall occur, or if, pursuant to Section 4.02(a) of
the Lease, the Lessee revokes its notice of election to purchase, or if no
refinancing shall occur pursuant to Section 15.01 of the Participation
Agreement, the Lessee shall give notice thereof to the Indenture Trustee, and
the prepayment proposed to be effected in respect thereof shall not occur.
Section 6.03. Notice of Prepayment to Holders. In order to effect
any prepayment set forth in Section 6.02(a) hereof, the Indenture Trustee
shall give prompt notice by first class mail of prepayment to each Holder of
an Outstanding Certificate. Any notice of prepayment given by the Owner
Trustee may be revoked by the Owner Trustee at any time on or before the
Prepayment Date by prompt notice to the Holders except as otherwise provided
in the Lease or the Participation Agreement.
All notices of prepayment shall state:
(1) the Prepayment Date,
(2) the applicable basis for determining the Prepayment Price,
(3) that on the Prepayment Date, subject to the provisions hereof,
the Prepayment Price will become due and payable, and that interest
on the Certificates shall cease to accrue on and after such
Prepayment Date, and
(4) the place or places where such Certificates are to be
surrendered for payment.
Section 6.04. Deposit of Prepayment Price and Sinking Fund
Redemption Price. On the Prepayment Date or the Sinking Fund Redemption
Date (as defined in Section 6.06 hereof), the Owner Trustee shall, to the
extent an amount equal to the Prepayment Price or the Sinking Fund
Redemption Price (as defined in Section 6.06 hereof), as the case may be,
shall not then be held in cash or Permitted Investments (marked-to-market
net of all costs and expenses of liquidation thereof) by the Indenture
Trustee in immediately available funds and deposited for the purpose, pay
to the Indenture Trustee an amount equal to the difference between (a) the
amount then so held and (b) the Prepayment Price or the Sinking Fund
Redemption Price, as the case may be. If there shall so be on deposit
and/or deposited the applicable Prepayment Price or Sinking Fund Redemption
Price on or prior to a Prepayment Date or Sinking Fund Redemption Date,
interest shall cease to accrue in respect of all or, in the case of a
mandatory sinking fund redemption, the relevant portion being prepaid of,
the Outstanding Certificates on and after such Prepayment Date or such
Sinking Fund Redemption Date.
Section 6.05. Certificates Payable on Prepayment Date. On the
Prepayment Date, the Outstanding Certificates shall (except (A) if the
Owner Trustee has requested the Indenture Trustee to revoke such notice of
prepayment in accordance with Section 6.03 hereof or (B) as otherwise
provided in the Lease) become due and payable and from and after such
Prepayment Date (unless there shall be a default in the payment of the
Prepayment Price) such Certificates shall cease to bear interest. Upon
surrender by any Holder of its Certificate for prepayment in accordance
with said notice, such Holder shall be paid the principal amount of its
Certificate then outstanding, accrued interest thereon to the Prepayment
Date, all other sums due to such Holder hereunder, under the Participation
Agreement or the Lease, plus, if a Make-Whole Premium is payable pursuant
to Section 6.02(b) hereof, the Make-Whole Premium in respect of such
Certificate.
If any Certificate called for prepayment shall not be so paid upon
surrender thereof for prepayment, the principal shall, until paid, continue to
bear interest from the Prepayment Date at the interest rate applicable to such
Certificate.
Section 6.06. Mandatory Sinking Fund Redemption. The
Certificates shall be subject to partial redemption, at the aggregate
principal amount set forth for the Certificates of the respective Series
and Maturity, on a pro rata basis, on each date specified in this Section
(a "Sinking Fund Redemption Date") for such payment on the Certificates of
such Series and Maturity. The Owner Trustee shall deposit funds sufficient
to pay the Sinking Fund Redemption Price with the Indenture Trustee as
provided in Section 6.04 hereof. The Indenture Trustee shall pay from the
amounts so deposited on each applicable Sinking Fund Redemption Date to the
Certificates of each Series in the order of priority set forth in clause
"first" of Section 5.01 and among the Holders of the Certificates of each
Series then Outstanding on a pro rata basis the aggregate principal amount
set forth below, together with accrued interest to such Sinking Fund
Redemption Date, but without Make-Whole Premium (the "Sinking Fund
Redemption Price"):
Principal Amount
<TABLE>
<CAPTION>
Series A Certificates Series B Certificates Series C Certificates
Sinking Fund with a Maturity of with a Maturity of with a Maturity of
Redemption Date January 15, 2017 January 15, 2018 January 15, 2014
- --------------------------- --------------------- --------------------- ---------------------
<S> <C> <C> <C>
January 15, 1998 292,850 250,140 190,520
July 15, 1998 374,190 0 0
January 15, 1999 155,254 250,140 333,520
July 15, 1999 511,786 0 0
January 15, 2000 149,287 250,140 333,520
July 15, 2000 517,753 0 0
January 15, 2001 245,388 250,140 333,520
July 15, 2001 421,652 0 0
January 15, 2002 447,707 250,140 333,520
July 15, 2002 219,333 0 0
January 15, 2003 667,040 250,140 427,042
July 15, 2003 0 0 0
January 15, 2004 667,040 250,140 757,173
July 15, 2004 0 0 0
January 15, 2005 667,040 250,140 865,719
July 15, 2005 0 0 0
January 15, 2006 667,040 250,140 835,803
July 15, 2006 0 0 0
January 15, 2007 667,040 250,140 3,783,765
July 15, 2007 0 0 0
January 15, 2008 667,040 250,140 676,225
July 15, 2008 0 0 0
January 15, 2009 667,040 250,140 1,788,770
July 15, 2009 0 0 0
January 15, 2010 667,040 250,140 1,742,978
July 15, 2010 0 0 0
January 15, 2011 667,040 2,179,510 758,530
July 15, 2011 0 0 0
January 15, 2012 667,040 3,178,951 0
July 15, 2012 0 0 0
January 15, 2013 2,910,012 2,059,773 0
July 15, 2013 0 0 0
January 15, 2014 1,987,488 0 3,372,395
July 15, 2014 0 0 0
January 15, 2015 5,780,164 0 0
July 15, 2015 0 0 0
January 15, 2016 6,230,567 0 0
July 15, 2016 0 0 0
January 15, 2017 6,438,169 277,926 0
January 15, 2018 0 1,559,020 0
</TABLE>
ARTICLE VII
INDENTURE EVENTS OF DEFAULT; REMEDIES
OF INDENTURE TRUSTEE AND HOLDERS
Section 7.01. Indenture Event of Default. "Indenture Event of
Default" means any of the following events (whatever the reason for such
Indenture Event of Default and whether it shall be voluntary or involuntary or
come about or be effected by operation of law or pursuant to or in compliance
with any judgment, decree or order of any court or any order, rule or
regulation of any administrative or governmental body):
(i) any Event of Default specified in Article 16 of the Lease (other
than an Event of Default arising solely as the result of the failure to
make an Excepted Payment unless the Owner Participant shall notify the
Indenture Trustee in writing that such failure shall constitute an
Indenture Event of Default); or
(ii) the failure of the Owner Trustee other than by reason of a
Default or an Event of Default (i) to pay principal, interest or Make-Whole
Premium, if any, on any Certificate when due, and such failure shall have
continued unremedied for ten (10) Business Days after the date when due or
(ii) to pay any other amounts hereunder or under the Certificates when due
and such failure shall have continued unremedied for a period of thirty
(30) days after the Owner Trustee and the Owner Participant shall receive
written demand therefor from the Indenture Trustee or by the Holders of not
less than 25% in aggregate principal amount of Outstanding Certificates; or
(iii) (A) any representation or warranty made by SSB, the Owner
Trustee, the Owner Participant or the Owner Participant Guarantor or any
Owner Trustee Guarantor, in any Operative Agreement or in any
certificate of SSB, the Owner Trustee, the Owner Participant, or the
Owner Participant Guarantor furnished to the Indenture Trustee or any
Holder in connection herewith or therewith or pursuant hereto or thereto
shall prove to have been incorrect when made and was and remains in any
respect material to the Holders and if such misrepresentation is capable
of being corrected as of a subsequent date and if such correction is
being sought diligently, and such misrepresentation shall not have been
corrected within 30 days following notice thereof identified as a
"Notice of Indenture Event of Default" being given to the Owner Trustee
and the Owner Participant by the Indenture Trustee or by a Majority in
Interest of Holders; or
(B) any (x) covenant made by the Owner Trustee in the fifth
paragraph following the Habendum Clause hereof or Section 3.05(b)(iii)
hereof or Section 7.02(b) or 7.12 of the Participation Agreement shall
be breached in any respect, (y) covenant made by the Owner Participant
in Section 7.02(c) or the last sentence of Section 7.13 of the
Participation Agreement shall be breached in any respect or (z) other
covenant made by the Owner Trustee, in its individual capacity or as
Owner Trustee, or by any Owner Trustee Guarantor, or by the Owner
Participant or the Owner Participant Guarantor in any Operative
Agreement shall be breached in any respect and such breach shall remain
unremedied for a period of thirty (30) days after there has been given
to the Owner Trustee and the Owner Participant by the Indenture Trustee
or by Certificate Holders of not less than 25% in aggregate principal
amount of Outstanding Certificates a written notice identified as a
"Notice of Indenture Event of Default" specifying such breach and
requiring it to be remedied; or
(iv) the Owner Trustee, the Lessor's Estate, any Owner Trustee
Guarantor, the Owner Participant or the Owner Participant Guarantor
shall file any petition or answer seeking for itself any reorganization,
arrangement, composition, readjustment, liquidation, dissolution or
similar relief under any present or future bankruptcy, insolvency or
similar statute, law or regulation;
(v) an order for relief shall be entered in respect of the Owner
Trustee or any Owner Trustee Guarantor or the Owner Participant or the
Owner Participant Guarantor or the Lessor's Estate by a court having
jurisdiction in the premises in an involuntary case under the federal
bankruptcy laws as now or hereafter in effect; or the Owner Trustee or
any Owner Trustee Guarantor or the Owner Participant or the Owner
Participant Guarantor or the Lessor's Estate shall file any answer
admitting or not contesting the material allegations of a petition filed
against the Owner Trustee or any Owner Trustee Guarantor or the Owner
Participant or the Owner Participant Guarantor or the Lessor's Estate in
any proceeding referred to in clause (vi) below or seek or consent or
acquiesce in the appointment of any trustee, custodian, receiver or
liquidator of the Owner Trustee or any Owner Trustee Guarantor or the
Owner Participant or the Owner Participant Guarantor or the Lessor's
Estate, as the case may be, or of all or any substantial part of its
properties; or
(vi) without the consent or acquiescence of the Owner Trustee or any
Owner Trustee Guarantor or the Owner Participant or the Owner Participant
Guarantor or the Lessor's Estate, as the case may be, an order shall be
entered constituting an order for relief or approving a petition for relief
or reorganization or any other petition seeking any reorganization,
arrangement, composition, readjustment, liquidation, dissolution or other
similar relief under any present or future bankruptcy, insolvency or
similar statute, law or regulation, or if any such petition shall be filed
against the Owner Trustee or any Owner Trustee Guarantor or the Owner
Participant or the Owner Participant Guarantor or the Lessor's Estate, as
the case may be, and such petition shall not be dismissed within 60 days,
or if, without the consent or acquiescence of the Owner Trustee or any
Owner Trustee Guarantor or the Owner Participant or the Owner Participant
Guarantor or the Lessor's Estate, as the case may be, an order shall be
entered appointing a trustee, custodian, receiver or liquidator of the
Owner Trustee or any Owner Trustee Guarantor or the Owner Participant or
the Owner Participant Guarantor or the Lessor's Estate, as the case may be,
or of all or any substantial part of the properties of the Owner Trustee or
any Owner Trustee Guarantor or the Owner Participant or the Owner
Participant Guarantor or the Lessor's Estate, as the case may be, and such
order shall not be dismissed within 60 days; or
(vii) any Owner Trustee Guaranty or the Owner Participant Guaranty
shall cease to be a valid and enforceable obligation of any Owner Trustee
Guarantor or the Owner Participant Guarantor, as the case may be, or
otherwise shall not be in full force and effect.
Section 7.02. Remedies. (a) If an Indenture Event of Default shall
have occurred and be continuing and so long as the same shall be continuing
unremedied, then and in every such case, the Indenture Trustee may, and when
required by the provisions of Article IX or Section 7.02(c) hereof, shall (i)
exercise any or all of the rights and powers and pursue any and all of the
remedies pursuant to this Article VII and (ii) in the event such Indenture
Event of Default is an Indenture Event of Default referred to in clause (i) of
Section 7.01 hereof, exercise any and all of the remedies pursuant to Article
17 of the Lease; provided that without the consent of the Owner Trustee and
the Owner Participant such exercise of remedies shall not occur until after
the latest date on which the Owner Trustee may cure the related Event of
Default pursuant to Section 8.03 hereof. The Indenture Trustee may (subject
to the provisions of the next succeeding paragraph) take possession of all or
any part of the properties covered or intended to be covered by the Lien and
security interest created hereby or pursuant hereto and may exclude the Owner
Participant, the Owner Trustee, the Lessee and any transferee of the Lessee
and all Persons claiming under any of them wholly or partly therefrom. In
addition, the Indenture Trustee may (subject to the provisions of the next
succeeding paragraph) exercise any other right or remedy in lieu of or in
addition to the foregoing that may be available to it under applicable law, or
proceed by appropriate court action to enforce the terms hereof, of the Lease,
or both, or to rescind the Lease. Without limiting any of the foregoing, it
is understood and agreed that the Indenture Trustee may exercise any right of
sale of the Aircraft available to it, even though it shall not have taken
possession of the Aircraft and shall not have possession thereof at the time
of such sale.
Notwithstanding the foregoing, it is understood and agreed that if
the Indenture Trustee shall proceed to foreclose the Lien of this
Indenture, it shall substantially simultaneously therewith, to the extent
the Indenture Trustee is then entitled to do so hereunder and under the
Lease, and is not then stayed or otherwise prevented from doing so, proceed
(to the extent it has not already done so) to declare the Lease in default
and commence the exercise in good faith of one or more of the significant
remedies under Article 17 of the Lease (as the Indenture Trustee determines
in its sole discretion) for the purpose of recovering the Aircraft. It is
further understood and agreed that if the Indenture Trustee is unable to
exercise one or more remedies under Article 17 of the Lease because of any
stay or operation of law or otherwise, the Indenture Trustee shall not be
entitled to foreclose the Lien of this Indenture (A) until the earlier of
(i) 60 days from the date of any such stay or applicable order under
Section 1110 of the Bankruptcy Code plus any extension consented to by the
Indenture Trustee or the Holders of Certificates of such period as
permitted under Section 1110(b) of the Bankruptcy Code and (ii) the date of
actual repossession of the Aircraft by the Indenture Trustee or (B) if the
Lessee has agreed to perform or assume the Lease pursuant to Section 365 or
1110 of the Bankruptcy Code and no Event of Default (other than as
specified in Section 16.01(e), (f) or (g) of the Lease, or other Event of
Default in respect of which the 30-day period referred to in clause
(a)(1)(B)(ii)(I) of Section 1110 of the Bankruptcy Code shall not yet have
expired) shall be continuing. For the avoidance of doubt, it is expressly
understood and agreed that except as aforesaid the above-described
inability of the Indenture Trustee to exercise any right or remedy under
the Lease shall in no event and under no circumstances prevent the
Indenture Trustee from exercising all of its rights, powers and remedies
under this Indenture, including, without limitation, this Article VII. The
Indenture Trustee further agrees that notice of intent to foreclose shall
be given to the Owner Trustee at the earlier of the commencement of any
proceeding or at least 30 days prior to the consummation of foreclosure of
the Lien of this Indenture.
(b) If an Indenture Event of Default under clause (iv), (v) or (vi)
of Section 7.01 hereof shall occur and be continuing, the unpaid principal of
all Outstanding Certificates, together with interest accrued but unpaid
thereon and all other amounts due thereunder, but without Make-Whole Premium,
shall immediately become due and payable, without presentment, demand, protest
or notice, all of which are hereby waived.
(c) If any Indenture Event of Default not described in the preceding
paragraph (b) shall have occurred and be continuing, then and in every such
case, the Indenture Trustee may on its own accord or at the direction of
Holders of not less than 25% in aggregate principal amount of Outstanding
Certificates, at any time, by written notice to the Owner Trustee, the Owner
Participant and the Lessee, declare the principal of all the Certificates to
be due and payable, whereupon the unpaid principal amount of all Outstanding
Certificates, together with accrued interest thereon and all other amounts due
thereunder, but without Make-Whole Premium, shall immediately become due and
payable without presentment, demand, protest or other notice, all of which are
hereby waived. At any time after such declaration and prior to the sale or
disposition of the Trust Indenture Estate, however, the Holders of not less
than 50% in aggregate principal amount of Outstanding Certificates, by notice
to the Indenture Trustee, the Owner Trustee and the Lessee, may rescind such
declaration, whether made by the Indenture Trustee on its own accord or as
directed, if (x) there has been paid or deposited with the Indenture Trustee a
sum sufficient to pay all overdue installments of interest on all Certificates
(together, to the extent permitted by law, with interest on such overdue
installments of interest), the principal on any Certificates that has become
due otherwise than by such declaration of acceleration, all sums paid or
advanced by the Indenture Trustee hereunder and the reasonable compensation,
expenses, disbursements and advances of the Indenture Trustee, its agents and
counsel, or (y) all Indenture Events of Default (other than the nonpayment of
principal that has become due solely because of such acceleration) have been
either cured or waived as provided in Section 7.11 hereof. No such rescission
shall affect any subsequent default or impair any right consequent thereon.
(d) Each Holder shall be entitled at any sale to credit against any
purchase price bid at such sale by such Holder all or any part of the unpaid
obligations owing to such Holder secured by the Lien of this Indenture (but
only to the extent that an amount equal to such purchase price would have been
paid to such Holder pursuant to Article V hereof if such purchase price were
paid in cash and the foregoing provisions of this subsection (d) were not
given effect).
Section 7.03. Return of Aircraft, etc. Subject to Section 7.02
hereof: (a) If an Indenture Event of Default shall have occurred and be
continuing, at the request of the Indenture Trustee, the Owner Trustee shall
promptly execute and deliver to the Indenture Trustee such documents as the
Indenture Trustee may deem necessary or advisable to enable the Indenture
Trustee or an agent or representative designated by the Indenture Trustee, at
such time or times and place or places as the Indenture Trustee may specify,
to obtain possession of all or any part of the Trust Indenture Estate to which
the Indenture Trustee shall at the time be entitled under this Indenture.
Subject to the foregoing, if the Owner Trustee shall for any reason fail to
execute and deliver such documents after such request by the Indenture
Trustee, the Indenture Trustee may pursue all or part of such Trust Indenture
Estate wherever it may be found and enter any of the premises of the Lessee or
the Owner Trustee wherever such Trust Indenture Estate may be or be supposed
to be and search for such Trust Indenture Estate and take possession of and
remove such Trust Indenture Estate. All expenses of pursuing, searching for
and taking such Trust Indenture Estate shall, until paid, be secured by the
Lien of this Indenture.
(b) Upon every such taking of possession, the Indenture Trustee may,
from time to time, at the expense of the Trust Indenture Estate, make all such
expenditures for maintenance, insurance and repairs to and of such Trust
Indenture Estate, as the Indenture Trustee may reasonably deem proper. In
each case subject to Section 7.02 hereof, the Indenture Trustee shall have the
right to maintain, use, operate, store, lease, control or manage the Trust
Indenture Estate and to carry on the business and to exercise all rights and
powers of the Owner Participant and the Owner Trustee relating to the Trust
Indenture Estate, as the Indenture Trustee may reasonably deem best, including
the right to enter into any and all such agreements with respect to the
maintenance, insurance, use, operation, storage, leasing, control, management
or disposition of all or any part of the Trust Indenture Estate as the
Indenture Trustee may determine. Further, the Indenture Trustee shall be
entitled to collect and receive directly all tolls, rents (including Rent),
revenues, issues, income, products and profits of the Trust Indenture Estate
other than Excepted Payments, without prejudice, however, to the right of the
Indenture Trustee under any provision of this Indenture to collect and receive
all cash held by, or required to be deposited with, the Indenture Trustee
under this Indenture. Such tolls, rents (including Rent), revenues, issues,
income, products and profits shall be applied to pay the expenses of the use,
operation, storage, leasing, control, management, or disposition of the Trust
Indenture Estate, and of all maintenance and repairs, and to make all payments
which the Indenture Trustee may be required or may reasonably elect to make
for any taxes, assessments, insurance or other proper charges upon the Trust
Indenture Estate (including the employment of engineers and accountants to
examine, inspect and make reports upon the properties and books and records of
the Owner Trustee and the Lessee), and all other payments which the Indenture
Trustee may be required or authorized to make under any provision of this
Indenture, as well as just and reasonable compensation for the services of the
Indenture Trustee and of all persons properly engaged and employed for such
purposes by the Indenture Trustee; provided, that any excess amounts shall be
promptly distributed in accordance with Section 5.03 hereof.
(c) Subject to Section 7.02 hereof, if an Indenture Event of
Default shall have occurred and be continuing and the Indenture Trustee shall
be entitled to exercise remedies hereunder, and subject to Article VIII
hereof, the Indenture Trustee, either with or without taking possession, and
either before or after taking possession, and without instituting any legal
proceedings whatsoever, may sell, assign, transfer and deliver the whole or,
from time to time, to the extent permitted by law, any part of the Trust
Indenture Estate, or any part thereof, or interest therein, at any private
sale or public auction to the highest bidder, with or without demand,
advertisement or notice, except that in respect of any private sale 30 days
prior written notice by registered mail to the Owner Trustee and the Owner
Participant will be provided, for cash or, with the consent of the Owner
Trustee and the Owner Participant, credit or for other property, for immediate
or future delivery, and for such price or prices and on such terms as the
Indenture Trustee in exercising reasonable commercial discretion may
determine; provided, that any such action shall be at the time lawful and that
all mandatory legal requirements shall be complied with. Any notice required
pursuant to the terms hereof in the case of a public sale, shall state the
time and place fixed for such sale. Any such public sale shall be held at
such time or times within ordinary business hours as the Indenture Trustee
shall fix in the notice of such sale. At any such sale, the Trust Indenture
Estate may be sold in one lot as an entirety or in separate lots. The
Indenture Trustee shall not be obligated to make any sale pursuant to such
notice. The Indenture Trustee may, without notice or publication, adjourn any
public or private sale or cause the same to be adjourned from time to time by
announcement at the time and place fixed for such sale, and any such sale may
be made at any time or place to which the same may be so adjourned without
further notice or publication. The Indenture Trustee may exercise such right
of sale without possession or production of the Certificates or proof of
ownership thereof, and as representative of the Holders may exercise such
right without notice to the Holders or without including the Holders as
parties to any suit or proceedings relating to the foreclosure of any part of
the Trust Indenture Estate. The Owner Trustee shall execute any and all such
bills of sale, assignments and other documents, and perform and do all other
acts and things requested by the Indenture Trustee in order to permit
consummation of any sale of the Trust Indenture Estate in accordance with this
Section 7.03(c) and to effectuate the transfer or conveyance referred to in
the first sentence of this Section 7.03(c). Notwithstanding any other
provision of this Indenture, the Indenture Trustee shall not sell the Trust
Indenture Estate or any part thereof unless the Certificates shall have been
accelerated.
(d) To the extent permitted by applicable law, and subject to
Section 7.02 hereof, the Indenture Trustee or any Holder may be a purchaser of
the Trust Indenture Estate or any part thereof or any interest therein at any
sale thereof, whether pursuant to foreclosure or power of sale or otherwise.
The Indenture Trustee may apply against the purchase price therefor the amount
then due hereunder or under any of the Certificates secured hereby and any
Holder may apply against the purchase price therefor the amount then due to it
hereunder, under any other Indenture Document or under the Certificates held
by such Holder to the extent of such portion of the purchase price as it would
have received had it been entitled to share any distribution thereof. The
Indenture Trustee or any Holder or nominee thereof shall, upon any such
purchase, acquire good title to the property so purchased, free of the Lien of
this Indenture and, to the extent permitted by applicable law, free of all
rights of redemption in the Owner Trustee or the Owner Participant in respect
of the property so purchased.
(e) The Indenture Trustee shall, as a matter of right, be entitled to
the appointment of a receiver (who may be the Indenture Trustee or any
successor or nominee) for all or any part of the Trust Indenture Estate,
whether such receivership be incidental to a proposed sale of the Trust
Indenture Estate or the taking of possession thereof or otherwise, and the
Owner Trustee hereby consents to the appointment of such receiver and will not
oppose any such appointment. Any receiver appointed for all or any part of
the Trust Indenture Estate shall be entitled to exercise all of the rights and
powers of the Indenture Trustee with respect to the Trust Indenture Estate.
Section 7.04. Indenture Trustee May Prove Debt. If the Owner
Trustee shall fail to pay any amount payable hereunder or under the
Certificates, the Indenture Trustee, in its own name and as trustee of an
express trust, shall be entitled and empowered to institute any action or
proceedings at law or in equity for the collection of the sums so due and
unpaid, and may prosecute any such action or proceedings to judgment or final
decree, and may enforce any such judgment or final decree against the Owner
Trustee and collect in the manner provided by law out of the property of the
Owner Trustee wherever situated, the moneys adjudged or decreed to be payable;
provided, that any sale of any portion of the Trust Indenture Estate shall be
done in accordance with Sections 7.02 and 7.03(c) hereof.
In case there shall be pending proceedings relative to the Owner
Trustee under the Bankruptcy Code or any other applicable Federal or state
bankruptcy, insolvency or other similar law, or in case a receiver, assignee
or trustee in bankruptcy or reorganization, liquidator, sequestrator or
similar official shall have been appointed for or taken possession of the
Owner Trustee or its property, or in case of any other comparable judicial
proceedings relative to the Owner Trustee, or to the creditors or property of
the Owner Trustee, the Indenture Trustee, irrespective of whether the
principal of the Certificates shall then be due and payable as therein or
herein expressed or by declaration or otherwise and irrespective of whether
the Indenture Trustee shall have made any demand pursuant to the provisions of
this Section, shall be entitled and empowered, by intervention in such
proceedings or otherwise:
(a) to file and prove a claim or claims for the whole amount of
principal, interest and other amounts owing and unpaid in respect of the
Certificates or hereunder, and to file such other papers or documents as
may be necessary or advisable in order to have the claims of the Indenture
Trustee (including any claim for reasonable compensation to the Indenture
Trustee and each predecessor Indenture Trustee, and their respective
agents, attorneys and counsel, and for reimbursement of the Indenture
Trustee and each predecessor Indenture Trustee, except as a result of
negligence or bad faith) and of the Holders allowed in any judicial
proceedings relative to the Owner Trustee or to the creditors or
property of the Owner Trustee,
(b) unless prohibited by applicable law and regulations, to vote on
behalf of the Holders in any election of a trustee or a standby trustee in
arrangement, reorganization, liquidation or other bankruptcy or insolvency
proceedings or person performing similar functions in comparable
proceedings, and
(c) to collect and receive any moneys or other property payable or
deliverable on any such claims, and to distribute all amounts received with
respect to the claims of the Holders and of the Indenture Trustee on their
behalf;
and any trustee, receiver, or liquidator, custodian or other similar official
is hereby authorized by each of the Holders to make payments to the Indenture
Trustee, and, in the event that the Indenture Trustee shall consent to the
making of payments directly to the Holders, to pay to the Indenture Trustee
such amounts as shall be sufficient to cover reasonable compensation to the
Indenture Trustee, each predecessor Indenture Trustee and their respective
agents, attorneys and counsel, and all other expenses and liabilities
incurred, and all advances made, by the Indenture Trustee and each predecessor
Indenture Trustee except as a result of negligence or willful misconduct.
Nothing contained herein shall be deemed to authorize the Indenture
Trustee to authorize or consent to or vote for or accept or adopt on behalf of
any Holder any plan of reorganization, arrangement, adjustment or composition
affecting the Certificates or the rights of any Holder thereof, or to
authorize the Indenture Trustee to vote in respect of the claim of any Holder
in any such proceeding except, as aforesaid, to vote for the election of a
trustee in bankruptcy or similar person.
All rights of action and rights to assert claims under this
Indenture, or under any of the Certificates, may be enforced by the Indenture
Trustee without the possession of such Certificates on any trial or other
proceedings instituted by the Indenture Trustee shall be brought in its own
name as trustee of an express trust, and any recovery of judgment, subject to
the payment of the expenses, disbursements and compensation of the
Indenture Trustee, each predecessor Indenture Trustee and their respective
agents and attorneys, shall be for the ratable benefit of the Holders, as
provided herein.
In any proceedings brought by the Indenture Trustee (and also any
proceedings involving the interpretation of any provision of this Indenture to
which the Indenture Trustee shall be a party) the Indenture Trustee shall be
held to represent all the Holders of the Certificates, and it shall not be
necessary to make any Holders parties to such proceedings.
Section 7.05. Remedies Cumulative. Each and every right, power and
remedy given to the Indenture Trustee in this Indenture shall be cumulative
and shall be in addition to every other right, power and remedy specifically
given herein or now or hereafter existing at law, in equity or by statute, and
each and every right, power and remedy whether specifically given herein or
otherwise existing may be exercised from time to time and as often and in such
order as may be deemed expedient by the Indenture Trustee or the Holders, and
the exercise or the beginning of the exercise of any power or remedy shall not
be construed to be a waiver of the right to exercise at the same time or later
any other right, power or remedy. No delay or omission by the Indenture
Trustee or of any Holder in the exercise of any right, remedy or power or in
the pursuance of any remedy shall impair any such right, power or remedy or be
construed to be a waiver of any default on the part of the Owner Trustee or
the Lessee or to be an acquiescence in any such default.
Section 7.06. Suits for Enforcement. If an Indenture Event of
Default has occurred, has not been waived and is continuing, the Indenture
Trustee may in its discretion and subject to its rights of appropriate
indemnification under Sections 7.08 and 9.03 and Article XI hereof proceed to
protect and enforce its rights and rights of the Holders by such appropriate
judicial proceedings as the Indenture Trustee shall deem most effectual to
protect and enforce any of such rights, either at law or in equity or in
bankruptcy or otherwise, whether for the specific enforcement of any covenant
or agreement contained in this Indenture or in aid of the exercise of any
power granted in this Indenture or to enforce any other legal or equitable
right vested in the Indenture Trustee or the Holders by this Indenture or by
law; provided, that any sale of any portion of the Trust Indenture Estate
shall be done in accordance with Sections 7.02 and 7.03(c) hereof.
Section 7.07. Discontinuance of Proceedings. In case the Indenture
Trustee or any Holder shall have instituted any proceeding to enforce any
right, power or remedy under this Indenture by foreclosure, entry or
otherwise, and such proceeding shall have been discontinued or abandoned for
any reason or shall have been determined adversely to the Indenture Trustee or
such Holder, then the Owner Trustee, the Indenture Trustee, the Owner
Participant, the Holders and the Lessee shall, subject to any binding
determination in such proceeding, be restored to their former positions and
rights under this Indenture with respect to the Trust Indenture Estate, and
all rights, remedies and powers of the Indenture Trustee and the Holders
shall continue as if no such proceeding had been instituted.
Section 7.08. Limitations on Suits by Holders. No Holder of any
Certificate shall have any right by virtue or by availing of any provision of
this Indenture to institute any action or proceeding at law or in equity or in
bankruptcy or otherwise upon or under or with respect to this Indenture, or
for the appointment of a trustee, receiver, liquidator, custodian or other
similar official or for any other remedy hereunder, unless such Holder
previously shall have given to the Indenture Trustee written notice that an
Indenture Event of Default shall then have occurred and be continuing, as
hereinbefore provided, and the Holders of not less than 25% in aggregate
principal amount of Outstanding Certificates shall have made written request
upon the Indenture Trustee to institute such action or proceedings in its own
name as trustee hereunder and shall have offered to the Indenture Trustee such
reasonable indemnity as it may require against the costs, expenses and
liabilities to be incurred therein or thereby and the Indenture Trustee for 60
days after its receipt of such notice, request and offer of indemnity shall
have failed to institute any such action or proceedings and no direction
inconsistent with such written request shall have been given to the Indenture
Trustee pursuant to Section 7.10 hereof; it being understood and intended, and
being expressly covenanted by the Holder of each Certificate with every other
Holder of each other Certificate and the Indenture Trustee, that no one or
more Holders shall have any right in any manner whatever to affect, disturb or
prejudice the rights of any other Holder or the Lien of this Indenture or any
part of the Trust Indenture Estate or to obtain or seek to obtain priority
over or preference to any other such Holder or to enforce any right under this
Indenture, except in the manner provided herein and for the equal, ratable and
common benefit of all Holders. For the protection and enforcement of the
provisions of this Section, each and every Holder and the Indenture Trustee
shall be entitled to such relief as can be given either at law or in equity.
Section 7.09. Unconditional Right of Holders to Receive Principal,
Interest and Make-Whole Premium, and to Institute Certain Suits.
Notwithstanding any other provision in this Indenture and any provision of any
Certificate, the right of any Holder to receive payment of the principal of
and interest and Make-Whole Premium, if any, on such Certificate on or after
the respective due dates and in the manner expressed in such Certificate, or,
subject to Section 7.08 hereof, to institute suit for the enforcement of any
such payment on or after such respective dates as provided herein, shall not
be impaired or affected without the consent of such Holder.
Section 7.10. Control by Holders. The Majority in Interest of
Certificate Holders shall have the right to direct the Indenture Trustee as to
the time, method, and place of conducting any proceeding for any remedy
available to the Indenture Trustee, or exercising any trust or power conferred
on the Indenture Trustee by this Indenture; provided that such direction shall
not be otherwise than in accordance with law and the provisions of this
Indenture and the Indenture Trustee shall have received, to the extent
provided in Sections 7.08 and 9.03 and Article XI hereof, such reasonable
indemnification as it may require against the costs, expenses and liabilities
to be incurred by the Indenture Trustee; and provided further that (subject to
the provisions of Section 9.02 hereof) the Indenture Trustee shall have the
right to decline to follow any such direction if the Indenture Trustee, being
advised by counsel, shall determine that the action or proceeding so directed
may not lawfully be taken or if the Indenture Trustee in good faith by its
board of directors, the executive committee, or a trust committee of directors
or Responsible Officers of the Indenture Trustee shall determine that the
action or proceedings so directed would involve the Indenture Trustee in
personal liability or if the Indenture Trustee in good faith shall so
determine that the actions or forebearances specified in or pursuant to such
direction shall be unduly prejudicial to the interests of Holders not joining
in the giving of said direction, it being understood that (subject to Section
9.02 hereof) the Indenture Trustee shall have no duty to ascertain whether or
not such actions or forebearances are unduly prejudicial to such Holders.
Nothing in this Indenture shall impair the right of the Indenture
Trustee in its discretion to take any action deemed proper by the Indenture
Trustee and which is not inconsistent with the direction by the Majority in
Interest of Certificate Holders.
Section 7.11. Waiver of Past Indenture Default. Upon written
instructions from the Majority in Interest of Certificate Holders, the
Indenture Trustee shall waive any past Indenture Default and its consequences
and upon any such waiver such Indenture Default shall cease to exist and any
Indenture Event of Default arising therefrom shall be deemed to have been
cured for every purpose of this Indenture, but no such waiver shall extend to
any subsequent or other Indenture Default or impair any right consequent
thereon; provided, however, that in the absence of written instructions from
all Holders and each Liquidity Provider, the Indenture Trustee shall not waive
any Indenture Default (a) in the payment of the principal of or Make-Whole
Premium, if any, or interest on, or other amounts due under, any Certificate
then Outstanding, or (b) in respect of a covenant or provision of this
Indenture which, under Article XIII hereof, cannot be modified or amended
without the consent of each Holder.
Section 7.12. Notice of Indenture Default. The Indenture Trustee
shall transmit to the Owner Trustee, the Holders and to the Owner Participant
notice of any Indenture Defaults actually known to a Responsible Officer of
the Indenture Trustee, such notice to be transmitted by mail to the Holders
within 90 days, and to the Owner Trustee and the Owner Participant promptly
after the occurrence thereof, unless such Indenture Default shall have been
cured before the giving of such notice; provided that except in the case of a
default in the payment of the principal of or interest on any Certificate,
under no circumstances shall the Indenture Trustee give such notice to the
Holders until the expiration of a period of 60 days from the occurrence of
such Indenture Default; and provided further that, except in the case of
default in the payment of the principal of or interest on or any other
amount due under any of the Certificates, the Indenture Trustee shall be
protected in withholding such notice to the Holders if and so long as the
board of directors, the executive committee, or a trust committee of
directors or trustees and/or Responsible Officers of the Indenture Trustee
in good faith determines that the withholding of such notice is in the
interests of the Holders.
ARTICLE VIII
RIGHTS OF THE OWNER TRUSTEE
AND THE OWNER PARTICIPANT
Section 8.01. Certain Rights of Owner Trustee and Owner Participant.
(a) Subject to Section 13.01 hereof and the provisions of paragraph (a)
immediately following the Granting Clause hereof, without the consent of a
Majority in Interest of Certificate Holders, the respective parties to the
Indenture Documents may not modify, amend or supplement any of said
agreements, or give any consent, waiver, authorization or approval thereunder,
for the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions thereof or of modifying in any manner the
rights of the respective parties thereunder; provided, however, that the
actions specified in subsection (b) of this Section 8.01 may be taken without
the consent of the Indenture Trustee or any Holder.
(b) Subject to the provisions of subsection (c) of this Section
8.01, the Lessor and the respective parties to the Indenture Documents, at any
time and from time to time, without the consent of the Indenture Trustee or of
any Holder, may:
(1) so long as no Indenture Event of Default shall have occurred and
be continuing, modify, amend or supplement the Lease, or give any waiver
with respect thereto, except that without compliance with subsection (a) of
this Section 8.01 the parties to the Lease shall not modify, amend or
supplement, or give any waiver for the purpose of adding any provisions to
or changing in any manner or eliminating any of the provisions thereof or
of modifying in any manner the rights of the respective parties thereunder,
with respect to the following provisions of the Lease as in effect on the
effective date hereof: Article 2 (except in respect of the Term, if the
result thereof would not be to shorten the Term of the Lease to a period
shorter than the period ending with the Maturity of any Certificate),
Section 3.03 (except to the extent such Section relates to amounts payable
(whether directly or pursuant to this Indenture) to Persons other than
Holders, each Liquidity Provider, the Subordination Agent and the Indenture
Trustee in its individual capacity), Section 3.05, Section 3.06 (except
insofar as it relates to the address or account information of the Owner
Trustee or the Indenture Trustee) (other than as such Sections 3.03, 3.05
and 3.06 may be amended pursuant to Section 3.04 of the Lease as in effect
on the effective date hereof), Section 5.01, Article 6, Article 10 (except
that further restrictions may be imposed on the Lessee), Article 11 (except
that additional requirements may be imposed on the Lessee), Article 13
(except for Section 13.05 and except that additional insurance requirements
may be imposed on the Lessee), Article 14 (except in order to increase the
Lessee's liabilities or enhance the Lessor's rights thereunder), Article 15
(except in the case of an assignment by the Lessor in circumstances where
the Aircraft shall remain registrable under the Federal Aviation Act),
Section 16.01 (except to impose additional or more stringent Events of
Default), Article 17 (except to impose additional remedies), Section 19.01
(except to impose additional requirements on the Lessee), Section 20.01,
Article 22, Section 23.01, Section 26.03 and any definition of terms used
in the Lease, to the extent that any modification of such definition would
result in a modification of the Lease not permitted pursuant to this
subsection (b); provided that the parties to the Lease may take any such
action without the consent of the Indenture Trustee or any Holder to the
extent such action relates to the payment of amounts constituting, or the
Owner Trustee's, the Owner Participant's or the Lessee's rights or
obligations with respect to, Excepted Payments (other than the place, time
and manner of payment of any portion of Basic Rent constituting an Excepted
Payment);
(2) modify, amend or supplement the Trust Agreement and any other
Indenture Document (other than the Lease and the Participation Agreement),
or give any consent, waiver, authorization or approval with respect
thereto, in each case only to the extent any such action shall not
materially adversely impact the interests of the Holders;
(3) modify, amend or supplement the Participation Agreement, or give
any consent, waiver, authorization or approval with respect thereto, except
that without compliance with subsection (a) of this Section 8.01 the
parties to the Participation Agreement shall not modify, amend or
supplement, or give any consent, waiver, authorization or approval for the
purpose of adding provisions to or changing in any manner or eliminating
any of the provisions thereof or of modifying in any manner the rights of
the respective parties thereunder, with respect to the following provisions
of the Participation Agreement as in effect on the effective date hereof:
Article 6 and Section 10.01(b) (insofar as such Article 6 and Section
10.01(b) relate to the Indenture Trustee, the Pass Through Trustee and the
Holders), Article 7 and Sections 3.05, 15.01, 17.02 and 17.11 and Articles
8 and 9 (insofar as such Articles relate to the Indenture Trustee; it being
understood that only the Indenture Trustee's consent in respect thereof
need be obtained) and any definition of terms used in the Participation
Agreement, to the extent that any modification of such definition would
result in a modification of the Participation Agreement not permitted
pursuant to this subsection (b); and
(4) modify, amend or supplement any of said agreements in order to
cure any ambiguity, to correct or supplement any provisions thereof which
may be defective or inconsistent with any other provision thereof or of any
provision of this Indenture, or to make any other provision with respect to
matters or questions arising thereunder or under this Indenture which shall
not be inconsistent with the provisions of this Indenture, provided the
making of any such other provision shall not adversely affect the interests
of the Holders.
(c) No modification, amendment, supplement, consent, waiver,
authorization or approval with respect to the Lease or the Participation
Agreement, whether effected pursuant to subsection (a) or pursuant to
subsection (b) of this Section 8.01 and anything in such subsections or
elsewhere in this Indenture to the contrary notwithstanding, shall, without
the consent of the Holder of each Outstanding Certificate affected thereby,
and each Liquidity Provider,
(1) modify, amend or supplement the Lease in such a way as to extend
the time of payment of Basic Rent or Stipulated Loss Value or Supplemental
Rent payable to the Holders or any Liquidity Provider or any other amounts
payable for the account of the Holders or any Liquidity Provider (subject
in any event to Section 3.05 of the Lease) upon the occurrence of an Event
of Loss or Termination Value and any other amounts payable for the account
of the Holders (subject in any event to Section 3.05 of the Lease) upon
termination of the Lease with respect to the Aircraft payable under, or as
provided in, the Lease as in effect on the effective date hereof, or reduce
the amount of any installment of Basic Rent or Supplemental Rent so that
the same is less than the payment of principal of, and interest on the
Certificates and Make-Whole Premium, if any, and amounts due to each
Liquidity Provider, as the case may be, to be made from such installment of
Basic Rent or Supplemental Rent, or reduce the aggregate amount of
Stipulated Loss Value, or any other amounts payable under, or as provided
in, the Lease as in effect on the effective date hereof upon the occurrence
of an Event of Loss so that the same is less than the accrued interest on
and the principal as of the Loss Payment Date, of the Certificates at the
time Outstanding or reduce the amount of Termination Value and any other
amounts payable under, or as provided in, the Lease as in effect on the
effective date hereof upon termination of the Lease with respect to the
Aircraft so that the same is less than the accrued interest on and
principal as of the Lease Termination Date and Make-Whole Premium, if any,
of Certificates at the time Outstanding, or
(2) modify, amend or supplement the Lease in such a way as to, or
consent to any assignment of the Lease or give any consent, waiver,
authorization or approval which would, release the Lessee from its absolute
and unconditional obligations in respect of payment of Basic Rent or
Supplemental Rent, or Stipulated Loss Value and any other amounts payable
for the account of the Holders (subject in any event to Section 3.05 of the
Lease) upon the occurrence of an Event of Loss, or Termination Value and
any other amounts payable for the account of the Holders (subject in any
event to Section 3.05 of the Lease) with respect to the Aircraft, payable
under, or as provided in, the Lease as in effect on the effective date
hereof, except for any such assignment pursuant to Section 2.12 hereof, and
except as provided in the Lease as in effect on the effective date hereof.
(d) At all times so long as this Indenture is in effect, the consent
of the Owner Trustee (at the direction of the Owner Participant) shall be
required in order (i) to amend, modify or supplement the Lease or any other
Operative Document to which the Owner Trustee is a party or to waive
compliance by the Lessee with any of its obligations thereunder and (ii) to
grant any consent requested under the Lease.
Notwithstanding the foregoing, but subject always to the provision of Section
15.05 hereof, the Indenture Trustee shall at all times have the right, to the
exclusion of the Owner Trustee and the Owner Participant, to (A) declare the
Lease to be in default under Article 17 (other than with respect to Excepted
Payments) thereof and (B) subject only to the provisions of this Indenture,
exercise the remedies set forth in such Article 17 of the Lease (other than in
connection with Excepted Payments) and in Article 7 hereof.
Nothing in this Indenture shall be deemed to prohibit the Owner
Participant or the Owner Trustee from making demand on the Lessee for, or from
commencing an action at law to obtain the payment of, or from receiving
payment of, any Excepted Payment; provided, however, that if the Owner Trustee
is proceeding under the Lease, the Owner Trustee shall proceed pursuant to
Section 17.01(a)(v), and only Section 17.01(a)(v), of the Lease.
Section 8.02. Owner Participant's Right to Elect to Prepay or
Purchase the Certificates. (a) If (i) an Event of Default shall have occurred
and be continuing for more than 180 days or the Certificates shall have become
due and payable pursuant to Section 7.02(b) or (c) hereof or (ii) an Event of
Default shall have occurred and be continuing for not more than 180 days and
the Certificates shall not have become due and payable pursuant to Section
7.02(b) or (c) hereof, the Owner Participant (or the Owner Trustee on behalf
of the Owner Participant) may, but shall be under no obligation to, do either
of the following:
(1) direct the Owner Trustee to cause the prepayment of all, but not
less than all, of the Certificates then Outstanding by notifying the
Indenture Trustee of such election, which notice in order to be effective
shall state that it is irrevocable (except as provided below) and shall
designate a Prepayment Date which shall be a Business Day which shall be
not less than 15 days after the date of such notice on which the Owner
Trustee shall, in the manner provided for in Section 6.04 hereof, deposit
the sum of amounts contemplated by paragraph "first" under Section 5.03 and
the aggregate Prepayment Price (determined in accordance with Section
6.02(b) hereof) of all such Certificates with the Indenture Trustee. If
such payment by the Owner Trustee to the Indenture Trustee is made, the
Certificates shall cease to accrue interest from and after the Prepayment
Date, and after distribution of such payment to the Holders, the Indenture
Trustee shall release the Trust Indenture Estate from the Lien of this
Indenture; or
(2) purchase all, but not less than all, of the Outstanding
Certificates by notifying the Indenture Trustee of such election, which
notice in order to be effective shall state that it is irrevocable (except
as provided below) and shall designate a date which shall be a Business Day
which shall be not less than 15 days after the date of such notice on which
the Owner Trustee shall pay to the Indenture Trustee an amount equal to the
aggregate unpaid principal amount of all Outstanding Certificates, together
with accrued interest on such amount to the date of purchase, the aggregate
amount of any Make-Whole Premium applicable to each Outstanding Certificate
(if such purchase occurs prior to the Premium Termination Date for such
Outstanding Certificate) in the case of a purchase pursuant to clause
(a)(ii) above (but not if such purchase is pursuant to clause (a)(i)
above), plus all other sums due any Holder or the Indenture Trustee
hereunder or under the Participation Agreement or the Lease. Upon receipt
by the Indenture Trustee of such amount, each Holder will be deemed,
whether or not Certificates shall have been delivered to the Indenture
Trustee on such date, to have thereupon sold, assigned, transferred and
conveyed (and shall promptly take such actions as the Owner Participant
shall reasonably request to evidence such sale, assignment, transfer and
conveyance) to the Owner Participant (without recourse or warranty of any
kind except for its own acts), all of the right, title and interest of such
Holder in and to the Trust Indenture Estate and this Indenture and all
Certificates held by such Holder and the former Holders shall not be
entitled to receive any interest on the principal amount of such
Certificates after the purchase date, and the Owner Participant shall be
deemed to have assumed (and shall promptly take such actions as any Holder
shall reasonably request to evidence such assumption) all of such Holder's
obligations under the Participation Agreement and this Indenture arising
subsequent to such sale. If the Owner Trustee shall so request, such
Holder will comply with all the provisions of Section 2.06 of this
Indenture to enable new Certificates to be issued to the Owner Participant
in such authorized denominations as the Owner Participant shall request.
All charges and expenses required pursuant to Section 2.06 hereof in
connection with the issuance of any such new Certificates shall be borne by
the Owner Participant.
(b) From and after the deposit by the Owner Trustee of the
applicable Prepayment Price or purchase price with the Indenture Trustee
pursuant to Section 8.02(a) hereof, the Owner Trustee shall be entitled to
exercise all remedies of the Indenture Trustee under Article VII hereof as
well as of the Lessor under the Lease.
(c) Any election to prepay or purchase the Certificates under this
Section 8.02 shall be irrevocable, provided that if on the specified date for
prepayment or purchase, the Event of Default giving rise to such election
shall no longer be continuing under the Lease such election shall be deemed to
be automatically withdrawn.
Section 8.03. Certain Rights of Owner Participant. (a) If (A)
there shall occur an Event of Default under the Lease as a result of the
Lessee's failure to make any payment of an installment of Basic Rent, and (B)
the Owner Trustee shall have paid or caused to be paid on or prior to the date
which is 15 Business Days after the Owner Participant's receipt of written
notice of such Event of Default all principal and interest on the Certificates
then due (as well as any interest on overdue principal and (to the extent
permitted by applicable law) interest), but not including any principal or
interest becoming due on account of such Event of Default, then the failure of
the Lessee to make the payment of such installment of Basic Rent or of
interest on account of such installment's being overdue shall not constitute
or result in an Indenture Event of Default under this Indenture and any
declaration based solely on the same shall be deemed to be automatically
rescinded. Nothing contained in the preceding sentence shall be deemed to
entitle the Owner Trustee to exercise any rights and powers or pursue any
remedies pursuant to Article 17 of the Lease or otherwise except as set forth
in this Indenture, and except that the Owner Trustee or the Owner Participant
may attempt to recover any amount paid by it or them under this Indenture by
demanding of the Lessee payment of such amount, or by commencing an action at
law or equity against the Lessee for the payment of such amount or taking
appropriate action in a pending action at law against the Lessee pursuant to
Section 17.01(a)(v), but only said Section 17.01(a)(v), of the Lease. Upon
curing any such Event of Default pursuant to this Section 8.03, the Owner
Trustee or the Owner Participant, as the case may be, shall be subrogated on
an unsecured basis to all the rights of the Indenture Trustee under the Lease
in respect of the payment giving rise to such Event of Default, and any right
to any interest in respect of the same, and shall be entitled to any payment
of Basic Rent (or interest thereon) actually made by the Lessee in respect
of such cured payment upon receipt by the Indenture Trustee; provided that
no such amount shall be paid to the Owner Trustee or the Owner Participant
until all amounts then due and payable to each Certificate Holder hereunder
and thereunder shall have been paid in full and no Indenture Event of
Default shall have occurred and be continuing. Notwithstanding anything in
this Indenture or the Lease to the contrary, the Owner Participant and the
Owner Trustee collectively, shall not be entitled to cure more than six (6)
Events of Default (no more than three (3) of which may be consecutive)
occasioned by defaults in the payment of Basic Rent.
(b) If (A) there shall occur an Event of Default under the Lease for
any reason other than the Lessee's failure to make any payment of an
installment of Basic Rent and (B) the Owner Trustee shall have taken or caused
to be taken such action necessary to cure and shall have cured such Event of
Default prior to the date which is 15 Business Days after the Owner
Participant's receipt of the written notice of such Event of Default, then
the failure of the Lessee to perform such covenant, condition or agreement,
the observance or performance of which was accomplished by the Owner Trustee
hereunder shall not constitute or result in an Indenture Event of Default
under this Indenture and any declaration based solely on the same shall be
deemed to be automatically rescinded. Nothing contained in the preceding
sentence shall be deemed to entitle the Owner Trustee or the Owner
Participant to exercise any rights and powers or pursue any remedies
pursuant to Article 17 of the Lease or otherwise except as set forth in
this Indenture, and except that the Owner Trustee or the Owner Participant
may attempt to recover any amount paid by it or them in effecting such cure
by demanding of the Lessee payment of such amount, plus any interest due,
or by commencing an action at law or in equity against the Lessee for the
payment of such amount or taking appropriate action in a pending action at
law or in equity against the Lessee pursuant to Section 17.01(a)(v), but
only said Section 17.01(a)(v), of the Lease. Upon curing any such Event of
Default pursuant to this Section 8.03(b), the Owner Trustee or the Owner
Participant, as the case may be, shall be subrogated to all the rights of
the Indenture Trustee under the Lease in respect of the payment, agreement
or covenant giving rise to such Event of Default, and any right to any
interest in respect of the same, and shall be entitled to any payment or
other performance upon receipt by the Indenture Trustee; provided that no
such amount shall be paid to the Owner Trustee or the Owner Participant
until all amounts then due and payable to each Certificate Holder hereunder
and thereunder shall have been paid in full and no Indenture Event of
Default shall have occurred and be continuing.
ARTICLE IX
CONCERNING THE INDENTURE TRUSTEE
Section 9.01. Acceptance of Trusts. The Indenture Trustee in its
individual capacity hereby accepts the trusts imposed upon it by this
Indenture, and covenants and agrees to perform the same as expressed herein
and agrees to receive and disburse all moneys constituting part of the Trust
Indenture Estate in accordance with the terms hereof.
Section 9.02. Duties and Responsibilities of the Indenture Trustee;
During an Indenture Event of Default; Prior to an Indenture Event of Default.
(a) The Indenture Trustee, prior to the occurrence of an Indenture Event of
Default and after the curing or waiving of all Indenture Events of Default
which may have occurred, undertakes to perform such duties and only such
duties as are specifically set forth in this Indenture. So long as an
Indenture Event of Default has occurred and has not been cured or waived, the
Indenture Trustee shall exercise such of the rights and powers vested in it by
this Indenture, and use the same degree of care and skill in their exercise,
as a prudent man would exercise or use under the circumstances in the conduct
of his own affairs. No provision of this Indenture shall be construed to
relieve the Indenture Trustee from liability for its own negligent action, its
own negligent failure to act or its own willful misconduct, except that:
(i) prior to the occurrence of an Indenture Event of Default and
after the curing or waiving of all Indenture Events of Default which may have
occurred:
(x) the duties and obligations of the Indenture Trustee shall be
determined solely by the express provisions of this Indenture, and the
Indenture Trustee shall not be liable except for the performance of such
duties and obligations as are specifically set forth in this Indenture, and no
implied covenants or obligations shall be read in to this Indenture against
the Indenture Trustee; and
(y) in the absence of bad faith on the part of the Indenture
Trustee, the Indenture Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed therein, upon any
statements, certificates or opinions furnished to the Indenture Trustee and
conforming to the requirements of this Indenture; but in the case of any such
statements, certificate or opinions which by any provision hereof are
specifically required to be furnished to the Indenture Trustee, the Indenture
Trustee shall be under a duty to examine the same to determine whether or not
they conform to the requirements of this Indenture;
(ii) the Indenture Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer or Responsible Officers
of the Indenture Trustee, unless it shall be proved that the Indenture Trustee
was negligent in ascertaining the pertinent facts; and
(iii) the Indenture Trustee shall not be liable with respect to any
action taken or not taken by it in good faith in accordance with the direction
of the Holders of not less than a majority in aggregate principal amount of
Outstanding Certificates relating to the time, method and place of conducting
any proceeding for any remedy available to the Indenture Trustee, or
exercising any trust or power conferred upon the Indenture Trustee, under this
Indenture.
None of the provisions contained in this Indenture shall require the
Indenture Trustee to expend or risk its own funds or otherwise incur personal
financial liability in the performance of any of its duties or in the exercise
of any of its rights or powers, if the Indenture Trustee shall have determined
in good faith that the repayment of such funds or adequate indemnity against
such liability is not reasonably assured to it.
The Indenture Trustee agrees that it will execute and the Owner
Trustee agrees that it will, at the expense of the Lessee, file or cause to be
filed such continuation statements with respect to financing statements
relating to the security interest created hereunder in the Trust Indenture
Estate as may be specified from time to time in written instructions of the
Holders of not less than 25% in aggregate principal amount of Certificates
(which instructions may, by their terms, be operative only at a future date
and which shall be accompanied by the execution form of such continuation
statement so to be filed); provided that, notwithstanding the foregoing, the
Indenture Trustee may execute and file or cause to be filed any financing
statement which it from time to time deems appropriate.
(b) If any Event of Default shall have occurred and be continuing
and, after the latest date on which the Owner Trustee may cure such Event of
Default pursuant to Section 8.03 hereof, on request of the Holders of not less
than 25% in aggregate principal amount of Outstanding Certificates and subject
to indemnification, to the extent provided in Sections 7.08 and 9.03 and
Article XI hereof, as it may require against the costs, expenses and
liabilities to be incurred, the Indenture Trustee shall exercise such remedies
under Article 17 of the Lease as shall be specified in such request.
(c) The Indenture Trustee agrees that it will, in its individual
capacity and at its own cost and expense (but without any right of indemnity
in respect of any such cost or expense under Article XI hereof) promptly take
such action as may be necessary duly to discharge all Indenture Trustee's
Liens on any part of the Trust Indenture Estate.
(d) The Indenture Trustee will execute and deliver to the Lessee for
filing in accordance with Article 18 of the Lease any properly presented
document, instrument or financing or continuation statement specified in any
opinion delivered pursuant to Section 6.03(e) of the Participation Agreement.
The Indenture Trustee may rely on the act of presentation of any such
document, instrument, financing or continuation statement as evidencing the
fact that it is properly prepared and presented, provided that the Indenture
Trustee shall promptly correct any error in any such document, instrument,
financing or continuation statement of which a Responsible Officer of the
Indenture Trustee has actual knowledge.
(e) The Indenture Trustee will furnish to each Holder promptly upon
receipt thereof, duplicates or copies of all reports, notices, requests,
demands, certificates, financial statements and other instruments furnished to
the Indenture Trustee, to the extent that the same shall not have been
otherwise furnished to such Holder pursuant to this Indenture or to the extent
the Indenture Trustee does not reasonably believe that the same shall have
been furnished by the Lessee directly to such Holder.
Section 9.03. Certain Rights of the Indenture Trustee. Subject to
Section 9.02 hereof:
(a) the Indenture Trustee may rely and shall be protected in acting
or refraining from acting upon any resolution, Officer's Certificate or any
other certificate, statement, instrument, opinion, report, notice, request,
consent, order, bond, debenture, note, coupon, security 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, direction, order or demand of the Owner Trustee
mentioned herein shall be sufficiently evidenced by an Officer's
Certificate (unless other evidence in respect thereof be herein
specifically prescribed) upon which the Indenture Trustee may rely to prove
or establish a matter set forth therein;
(c) the Indenture Trustee may consult with counsel and any advice or
Opinion of Counsel shall be full and complete authorization and protection
in respect of any action taken, suffered or omitted to be taken by it
hereunder in good faith and in accordance with such advice or Opinion of
Counsel;
(d) the Indenture Trustee shall be under no obligation to exercise
any of the trusts or powers vested in it by this Indenture at the request,
order or direction of any of the Holders pursuant to the provisions of this
Indenture, unless such Holders shall have offered to the Indenture Trustee
reasonable security or indemnity against the costs, expenses and
liabilities which might be incurred therein or thereby;
(e) the Indenture Trustee shall not be liable for any action taken
or omitted by it in good faith and believed by it to be authorized or
within the discretion, rights or powers conferred upon it by this
Indenture;
(f) prior to the occurrence of an Indenture Event of Default
hereunder and after the curing or waiving of all Indenture Events of
Default, the Indenture Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, approval,
appraisal, bond, debenture, note, coupon, security, or other paper or
document unless requested in writing to do so by the Majority in Interest
of Certificate Holders; provided that, if the payment within a reasonable
time to the Indenture Trustee of the costs, expenses or liabilities likely
to be incurred by it in the making of such investigation is, in the opinion
of the Indenture Trustee, not reasonably assured to the Indenture Trustee
by the security afforded to it by the terms of this Indenture, the
Indenture Trustee may require reasonable indemnity against such costs,
expenses or liabilities as a condition to proceeding; the reasonable
expenses of every such examination shall be paid by the Owner Trustee or,
if paid by the Indenture Trustee or any predecessor trustee, shall be
repaid by the Owner Trustee upon demand; and
(g) the Indenture Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
agents or attorneys not regularly in its employ and the Indenture Trustee
shall not be responsible for any misconduct or negligence on the part of
any such agent or attorney appointed with due care by it hereunder.
Section 9.04. Indenture Trustee Not Responsible for Recitals,
Disposition of Certificates or Application of Proceeds Thereof. The Indenture
Trustee assumes no responsibility for the correctness of the recitals
contained herein and in the Certificates, except the Indenture Trustee's
certificates of authentication. The Indenture Trustee makes no
representation as to the validity or sufficiency of this Indenture or of the
Certificates. The Indenture Trustee shall not be accountable for the use or
application by the Owner Trustee of any of the Certificates or of the proceeds
thereof.
Section 9.05. Indenture Trustee and Agents May Hold Certificates;
Collections, etc. The Indenture Trustee or any agent of the Indenture Trustee
in its individual or any other capacity may become the owner or pledgee of
Certificates with the same rights it would have if it were not the Indenture
Trustee or such agent and may otherwise deal with the Owner Trustee and
receive, collect, hold and retain collections from the Owner Trustee with the
same rights it would have if it were not the Indenture Trustee or such agent.
Section 9.06. Moneys Held by Indenture Trustee. Subject to Sections
5.08 hereof and 14.04 hereof, all moneys received by the Indenture Trustee
shall, until used or applied as herein provided, be held in trust for the
purposes for which they were received, but need not be segregated from other
funds except to the extent required by mandatory provisions of law. Neither
the Owner Trustee nor, subject to Section 5.08 hereof, the Indenture Trustee
nor any agent thereof shall be under any liability for interest on any moneys
received by it hereunder.
Section 9.07. Right of Indenture Trustee to Rely on Officer's
Certificate, etc. Subject to Sections 9.02 and 9.03 hereof, whenever in the
administration of the trusts of this Indenture the Indenture Trustee shall
deem it necessary or desirable that a matter be proved or established prior to
taking or suffering or omitting any action hereunder, such matter (unless
other evidence in respect thereof be specifically prescribed herein) may, in
the absence of bad faith on the part of the Indenture Trustee, be deemed to be
conclusively proved and established by an Officer's Certificate delivered to
the Indenture Trustee, and such certificate, in the absence of bad faith on
the part of the Indenture Trustee, shall be full warrant to the Indenture
Trustee for any action taken, suffered or omitted by it under the provisions
of this Indenture upon the faith thereof.
Section 9.08. Replacement Airframes and Replacement Engines. At any
time and from time to time any Airframe or Engine which has been subject to an
Event of Loss and may, or is required to, be replaced under Section 10.03,
11.03 or 11.04 of the Lease by a Replacement Airframe or Replacement Engine,
as the case may be, shall be replaced in accordance with the provisions of
this Section 9.08 and the provisions of said Sections of the Lease, the Owner
Trustee shall, from time to time, direct the Indenture Trustee to execute and
deliver to or as directed in writing by the Owner Trustee an appropriate
instrument releasing such Airframe and/or Engine as appropriate from the Lien
of this Indenture and the Indenture Trustee shall execute and deliver such
instrument as aforesaid without recourse or warranty, but only upon receipt by
or deposit with the Indenture Trustee of the following:
(1) A written request from the Owner Trustee requesting such release
and specifically describing the Airframe and/or Engine(s) to be so released.
(2) A certificate signed by a duly authorized officer of the Lessee
stating the following:
A. With respect to the replacement of any Airframe:
(i) a description of the Airframe subject to the Event of Loss
including the manufacturer, model, FAA registration number (or
other applicable registration information) and manufacturer's
serial number;
(ii) a description of the Replacement Airframe, including the
manufacturer, model, FAA registration number (or other applicable
registration information) and manufacturer's serial number;
(iii) that on the date of the Indenture and Security Agreement
Supplement relating to the Replacement Airframe the Owner Trustee
will be the legal owner of and have good and marketable title to such
Replacement Airframe free and clear of all Liens except Liens
permitted under Section 6.01 of the Lease, that such Replacement
Airframe will on such date be in at least as good operating condition
and repair as required by the terms of the Lease, and that such
Replacement Airframe has been or, substantially concurrently with
such replacement, will be duly registered in the name of the Owner
Trustee under the Transportation Code or under the law then
applicable to the registration of the Airframe subject to the Event
of Loss and that an airworthiness certificate has been duly issued
under the Aviation Act (or such other applicable law) with respect to
such Replacement Airframe and that such registration and certificate
is, or will be, in full force and effect, and that the Lessee will
have the full right and authority to use such Replacement Airframe;
(iv) that the insurance required by Article 13 of the Lease is in
full force and effect with respect to such Replacement Airframe and
all premiums then due thereon have been paid in full;
(v) that the Replacement Airframe is of the same or an improved
make or model as the Airframe requested to be released from this
Indenture;
(vi) that the value of the Replacement Airframe as of the date of
such certificate is not less than the value of the Airframe
requested to be released (assuming such Airframe was in the
condition and repair required to be maintained under the Lease);
(vii) that no Event of Default has occurred and is continuing or
would result from the making and granting of the request for release
and the addition of a Replacement Airframe;
(viii) that the release of the Airframe subject to the Event of Loss
will not impair the security of the Indenture in contravention of any
of the provisions of this Indenture;
(ix) that upon such replacement, the Lien of this Indenture will
apply to the Replacement Airframe and such Lien will be a first
priority security interest in favor of the Indenture Trustee; and
(x) that each of the conditions specified in Section 11.03 of the
Lease with respect to such Replacement Airframe has been satisfied.
B. With respect to the replacement of any Engine:
(i) a description of the Engine subject to the Event of Loss
including the manufacturer's serial number;
(ii) a description of the Replacement Engine including the
manufacturer's name, the engine model and serial number;
(iii) that on the date of the Indenture and Security Agreement
Supplement relating to the Replacement Engine the Owner Trustee will
be the legal owner of such Replacement Engine free and clear of all
Liens except Liens permitted under Section 6.01 of the Lease, and
that such Replacement Engine will on such date be in at least as good
operating condition and repair as required by the terms of the Lease
and will otherwise conform to the requirements set forth in the
definition of "Replacement Engine";
(iv) that the value of the Replacement Engine as of the date of such
certificate is not less than the value of the Engine to be released
(assuming such Engine was in the condition and repair required to be
maintained under the Lease);
(v) that the release of the Engine subject to the Event of Loss will
not impair the security of the Indenture in contravention of any of
the provisions of this Indenture;
(vi) that upon such replacement, the Lien of this Indenture will
apply to the Replacement Engine and such Lien will be a first
priority security interest in favor of the Indenture Trustee; and
(vii) that each of the conditions specified in Section 10.03, 11.03
or 11.04 of the Lease with respect to such Replacement Engine has
been satisfied.
(3) The appropriate instruments (i) transferring to the Owner
Trustee title to the Replacement Airframe or Replacement Engine to be received
as consideration for the Airframe or Engine to be released and (ii) assigning
to the Owner Trustee the benefit of all manufacturer's and vendor's
warranties, if any, generally available with respect to such Replacement
Airframe or Replacement Engine, and an Indenture and Security Agreement
Supplement subjecting such Replacement Airframe or Replacement Engine to the
Trust Agreement and to the Lien of this Indenture.
(4) A certificate from a firm of independent aircraft appraisers of
national standing satisfactory to the Indenture Trustee and the Owner Trustee
confirming the accuracy of the information set forth in clause (2)A.(vi) of
this Section 9.08.
(5) The opinion of Davis Polk & Wardwell, special counsel to the
Lessee, or other counsel reasonably satisfactory to the Indenture Trustee,
stating that:
(i) the certificates, opinions and other instruments and/or property
which have been or are therewith delivered to and deposited with the
Indenture Trustee conform to the requirements of this Indenture and the
Lease and, upon the basis of such application, the property so sold or
disposed of may be properly released from the Lien of this Indenture and
all conditions precedent herein provided for relating to such release have
been complied with; and
(ii) the Replacement Airframe or Replacement Engine has been validly
subjected to the Lien of this Indenture and covered by the Lease, the
instruments subjecting such Replacement Airframe or Replacement Engine to
the Lease and to the Lien of this Indenture, as the case may be, have been
duly filed for recordation pursuant to the Transportation Code or any other
law then applicable to the registration of the Aircraft, and no further
action, filing or recording of any document is necessary or advisable in
order to establish and perfect the title of the Owner Trustee to and the
Lien of this Indenture on such Replacement Airframe or Replacement Engine
and the Indenture Trustee would be entitled to the benefits of Section 1110
of the Bankruptcy Code with respect to such Replacement Airframe or
Replacement Engine, provided, that such opinion need not be to the effect
specified in the foregoing clause to the extent that the benefits of such
Section 1110 would not have been, by reason of a change in law or
governmental interpretation thereof after the date hereof, available to the
Indenture Trustee with respect to the Aircraft immediately prior to such
substitution had such Event of Loss not occurred.
Section 9.09. Indenture and Security Agreement Supplement for
Replacements. In the event of the substitution of a Replacement Airframe or a
Replacement Engine as contemplated by Section 10.03 or Article 11 of the
Lease, the Owner Trustee and the Indenture Trustee agree for the benefit of
the Holders and the Lessee, subject to fulfillment of the conditions precedent
and compliance by the Lessee with its obligations set forth in Section 10.03
or Article 11 of the Lease, to execute and deliver an Indenture and Security
Agreement Supplement as contemplated by Section 9.08(3) hereof and, provided
no Event of Default shall have occurred and be continuing, execute and deliver
to the Lessee an appropriate instrument releasing the Airframe or Engine being
replaced from the Lien of this Indenture.
Section 9.10. Effect of Replacement. In the event of the
substitution of a Replacement Airframe or a Replacement Engine as contemplated
by Section 10.01 or Article 11 of the Lease and Section 9.08 hereof, all
provisions of this Indenture relating to the Airframe or Engine or Engines
being replaced shall be applicable to such Replacement Airframe or Replacement
Engine or Engines with the same force and effect as if such Replacement
Airframe or Replacement Engine or Engines were the same Airframe or engine or
engines, as the case may be, as the Airframe or Engine or Engines being
replaced but for the Event of Loss with respect to the Airframe or Engine or
Engines being replaced.
Section 9.11. Compensation. The Owner Trustee covenants and agrees
to pay, and the Indenture Trustee shall be entitled to receive, reasonable
compensation and payment or reimbursement for its reasonable advances,
expenses and disbursements (including the reasonable compensation and expenses
and disbursements of its counsel, agents and other persons not regularly in
its employ) in connection with its services rendered hereunder or in any way
relating to or arising out of the administration of the Trust Indenture Estate
and shall have a priority claim on the Trust Indenture Estate for the payment
of such compensation, advances, expenses and disbursements to the extent that
such compensation, advances, expenses and disbursements shall not be paid by
the Lessee, and shall have the right to use or apply any moneys held by it
hereunder in the Trust Indenture Estate toward such payments; provided that,
so long as the Lease is in effect, the Indenture Trustee shall not make any
claim for payment under this Section 9.11 against the Owner Trustee without
first making demand on the Lessee for payment of such claim. The Indenture
Trustee agrees that it shall have no right against any Holder, SSB or the
Owner Participant for any fee as compensation for its services as trustee
under this Indenture.
ARTICLE X
CONCERNING THE HOLDERS
Section 10.01. Evidence of Action Taken by Holders. (a) Any
request, demand, authorization, direction, notice, consent, waiver or other
action provided by this Indenture to be given or taken by Holders may be
embodied in and evidenced by one or more instruments of substantially similar
tenor signed by such Holders in person or by an agent duly appointed in
writing, and, except as otherwise expressly provided herein, such action shall
become effective when such instrument or instruments are delivered to the
Indenture Trustee and, if expressly required herein, to the Owner Trustee.
Proof of execution of any instrument or of a writing appointing any such agent
shall be sufficient for any purpose of this Indenture and (subject to Sections
9.02 and 9.03 hereof) conclusive in favor of the Indenture Trustee and the
Owner Trustee, if made in the manner provided in this Article.
(b) For the purpose of determining the Holders entitled to vote or
consent to any direction, waiver or other action of such Holders under Section
7.10 or 7.11 hereof, the Lessee may set a record date for such vote or consent
by specifying such record date in an Officer's Certificate delivered to the
Indenture Trustee. Such record date shall be a date not more than 15 days
prior to the first solicitation of such vote or consent.
Section 10.02. Proof of Execution of Instruments and of Holding of
Certificates. Subject to Sections 9.02 and 9.03 hereof, the execution of any
instrument by a Holder or his agent or proxy may be proved in accordance with
such reasonable rules and regulations as may be prescribed by the Indenture
Trustee. The holding of Certificates shall be proved by the Register or by a
certificate of the Registrar.
Section 10.03. Holders to Be Treated as Owners. Prior to due
presentment for registration of transfer of any Certificate, the Owner
Trustee, the Indenture Trustee, any agent of the Owner Trustee or the
Indenture Trustee, the Paying Agent, if any, the Registrar and the Lessee
shall deem and treat the Person in whose name such Certificate shall be
registered upon the Register as the absolute owner of such Certificate
(whether or not such Certificate shall be overdue and notwithstanding any
notation of ownership or other writing thereon) for the purpose of receiving
payment of or on account of the principal of and, subject to the provisions of
this Indenture, interest on such Certificate and for all other purposes; and
neither the Owner Trustee nor the Indenture Trustee (nor any agent of the
Owner Trustee or the Indenture Trustee) nor the Paying Agent, if any, nor the
Registrar nor the Lessee shall be affected by any notice to the contrary. All
such payments so made to any such person, or upon his order, shall be valid,
and, to the extent of the sum or sums so paid, effectual to satisfy and
discharge the liability for moneys payable upon any such Certificate.
Section 10.04. Certificates Owned by Owner Trustee and the Lessee
Deemed Not Outstanding. In determining whether the Holders of the requisite
aggregate principal amount of Certificates have concurred in any direction,
consent or waiver under this Indenture, Certificates which are owned by the
Owner Trustee, the Owner Participant, SSB, the Lessee or by any Affiliate
thereof shall be disregarded and deemed not to be Outstanding for the purpose
of any such determination; provided that for the purpose of determining
whether the Indenture Trustee shall be protected in relying on any such
direction, consent or waiver, only if a Responsible Officer of the Indenture
Trustee has actual knowledge that certain Certificates are so owned by any
person directly or indirectly controlling or controlled by or under direct or
indirect common control with the Owner Trustee, the Owner Participant, SSB or
the Lessee shall such Certificates be so disregarded; and provided further
that if all Certificates which would be deemed Outstanding in the absence of
the foregoing provision are owned by the Owner Trustee, SSB or the Owner
Participant or by any Affiliate thereof, then such Certificates shall be
deemed Outstanding for the purpose of any such determination. Certificates
so owned which have been pledged in good faith may be regarded as Outstanding
if the pledgee establishes to the satisfaction of the Indenture Trustee the
pledgee's right so to act with respect to such Certificates and that the
pledgee is not the Owner Trustee, the Owner Participant, SSB or the Lessee or
any Person directly or indirectly controlling or controlled by or under direct
or indirect common control with the Owner Trustee, the Owner Participant, SSB
or the Lessee. In case of a dispute as to such right, the advice of counsel
shall be full protection in respect of any decision made by the Indenture
Trustee in accordance with such advice, unless the Lessee, the Owner Trustee,
SSB, or the Owner Participant are actually named in the Register. Upon
request of the Indenture Trustee, the Owner Trustee, the Owner Participant,
SSB and the Lessee shall furnish to the Indenture Trustee promptly an
Officer's Certificate listing and identifying all Certificates, if any, known
by the Owner Trustee, the Owner Participant, SSB or the Lessee to be owned or
held by or for the account of any of the above-described persons; and, subject
to Sections 9.02 and 9.03 hereof, the Indenture Trustee shall be entitled to
accept such Officer's Certificate as conclusive evidence of the facts set
forth therein and of the fact that all Certificates not listed therein are
outstanding for the purpose of any such determination.
Section 10.05. Right of Revocation of Action Taken. At any time
prior to (but not after) the evidencing to the Indenture Trustee, as provided
in Section 10.01, of the taking of any action by the Holders of the percentage
in aggregate principal amount of the Certificates specified in this Indenture
in connection with such action, any Holder of a Certificate, the serial number
of which is shown by the evidence to be included among the serial numbers of
the Certificates the Holders of which have consented to such action, may, by
filing written notice at the Corporate Trust Department and upon proof of
holding as provided in this Article, revoke such action so far as concerns
such Certificate. Except as aforesaid, any such action taken by the Holder
shall be conclusive and binding upon such Holder and upon all future Holders
and owners of such Certificate and of any Certificates issued in exchange or
substitution therefor, irrespective of whether or not any notation in regard
thereto is made upon any such Certificate or otherwise. Any action taken by
the Holders of the percentage in aggregate principal amount of the
Certificates specified in this Indenture in connection with such action shall
be conclusively binding upon the Owner Trustee, the Indenture Trustee and the
Holders of all the Certificates.
Section 10.06. ERISA. Any Person, other than the Subordination
Agent, who is acquiring the Certificates will be deemed to represent and
warrant that (i) no assets of an employee benefit plan subject to Title I of
ERISA or an individual retirement account or plan subject to Section 4975 of
the Code, or any trust established under any such plan or account, have been
used to acquire or hold any of the Certificates, or (ii) that one or more
administrative or statutory exemptions from the prohibited transaction rules
under Section 406 of ERISA and Section 4975 of the Code applies to its
purchase and holding of the Certificates such that its purchase and holding of
the Certificates will not result in a non-exempt prohibited transaction under
Section 406 of ERISA and Section 4975 of the Code.
ARTICLE XI
INDEMNIFICATION OF INDENTURE
TRUSTEE BY OWNER TRUSTEE
The Owner Trustee, not individually but solely in its capacity as
Owner Trustee under the Trust Agreement, hereby agrees, whether or not any of
the transactions contemplated hereby shall be consummated, to assume liability
for, and does hereby indemnify, protect, save and keep harmless the Indenture
Trustee, in its individual capacity, and its successors, assigns, agents and
servants solely from the Lessor's Estate, with respect to the claims of the
Indenture Trustee for payment or reimbursement under Section 9.11 hereof and
from and against any and all liabilities, obligations, losses, damages,
penalties, taxes (excluding any taxes payable by the Indenture Trustee on or
measured by any compensation received by the Indenture Trustee for its
services under this Indenture and any taxes excluded from the Lessee's
indemnity obligation under Section 8.01(b) of the Participation Agreement),
claims, actions, suits, costs, expenses or disbursements (including legal fees
and expenses) of any kind and nature whatsoever which may be imposed on,
incurred by or asserted against the Indenture Trustee (whether or not also
agreed to be indemnified against by any other person under any other document)
in any way relating to or arising out of this Indenture, or any other
Indenture Documents or the enforcement of any of the terms of any thereof, or
in any way relating to or arising out of the manufacture, purchase,
acceptance, nonacceptance, rejection, ownership, delivery, lease, possession,
use, operation, condition, sale, return or other disposition of the Aircraft or
any Engine (including, without limitation, latent and other defects, whether
or not discoverable, and any claim for patent, trademark or copyright
infringement), or in any way relating to or arising out of the administration
of the Trust Indenture Estate or the action or inaction of the Indenture
Trustee hereunder, except only (a) in the case of willful misconduct or gross
negligence of the Indenture Trustee in the performance of its duties
hereunder, (b) as may result from the inaccuracy of any representation or
warranty of the Indenture Trustee in the Participation Agreement, (c) as
otherwise provided in Section 9.02(c) hereof or (d) as otherwise excluded by
the terms of Article 8 or Article 9 of the Participation Agreement from the
Lessee's general indemnity or general tax indemnity to the Indenture Trustee
under said Article; provided that so long as the Lease is in effect, the
Indenture Trustee shall not make any claim under this Article XI for any claim
or expense indemnified by the Lessee under the Participation Agreement without
first making demand on the Lessee for payment of such claim or expense. The
Indenture Trustee shall be entitled to indemnification, from the Trust
Indenture Estate, for any liability, obligation, loss, damage, penalty, claim,
action, suit, cost, expense or disbursement indemnified against pursuant to
this Article XI to the extent not reimbursed by the Lessee or others, but
without releasing any of them from their respective agreements of
reimbursement; and to secure the same the Indenture Trustee shall have a prior
Lien on the Trust Indenture Estate. The indemnities contained in this Article
XI shall survive the termination of this Indenture and the resignation or
removal of the Indenture Trustee. Upon payment in full by the Owner Trustee
of any indemnity pursuant to this Article XI, the Owner Trustee shall, so long
as no Indenture Event of Default shall have occurred and be continuing, be
subrogated to the rights of the Indenture Trustee, if any, in respect of the
matter as to which the indemnity was paid.
ARTICLE XII
SUCCESSOR TRUSTEES
Section 12.01. Notice of Successor Owner Trustee. In the case of any
appointment of a successor to the Owner Trustee pursuant to the Trust
Agreement or any merger, conversion, consolidation or sale of substantially
all of the corporate trust business of the Owner Trustee pursuant to the Trust
Agreement, the successor Owner Trustee shall give prompt written notice
thereof to the Indenture Trustee.
Section 12.02. Resignation and Removal of Indenture Trustee;
Appointment of Successor. (a) The Indenture Trustee or any successor thereto
may resign at any time without cause by giving at least 30 days' prior written
notice to the Owner Trustee, the Owner Participant, the Lessee and each
Holder, such resignation to be effective upon the acceptance of the
trusteeship by a successor Indenture Trustee. In addition, the Majority in
Interest of the Certificate Holders or the Owner Trustee, with the consent of
the Lessee and the Majority in Interest of the Certificate Holders may at any
time remove the Indenture Trustee without cause by an instrument in writing
delivered to the Lessee, the Owner Trustee, the Owner Participant, and the
Indenture Trustee, and the Indenture Trustee shall promptly notify each Holder
thereof of such action in writing, such removal to be effective upon the
acceptance of the trusteeship by a successor Indenture Trustee. In the case
of the resignation or removal of the Indenture Trustee, the Majority in
Interest of the Certificate Holders, or the Owner Trustee, with the consent of
the Lessee and the Majority in Interest of the Certificate Holders, may
appoint a successor Indenture Trustee by an instrument signed by such Holders.
If a successor Indenture Trustee shall not have been appointed within 30 days
after such notice of resignation or removal, the Indenture Trustee, the Owner
Trustee, the Lessee, the Owner Participant, or any Holder may apply to any
court of competent jurisdiction to appoint a successor Indenture Trustee to
act until such time, if any, as a successor shall have been appointed as
provided above. The successor Indenture Trustee so appointed by such court
shall immediately and without further act be superseded by any successor
Indenture Trustee appointed as provided above.
(b) In case at any time any of the following shall occur:
(i) the Indenture Trustee shall cease to be eligible in accordance
with the provisions of Section 12.03 hereof and shall fail to resign after
written request therefor by the Owner Trustee or by any Holder; or
(ii) the Indenture Trustee shall become incapable of acting, or shall
be adjudged a bankrupt or insolvent, or a receiver or liquidator of the
Indenture Trustee or of its property shall be appointed, or any public
officer shall take charge or control of the Indenture Trustee or of its
property or affairs for the purpose of rehabilitation, conservation or
liquidation;
then the Owner Trustee may remove the Indenture Trustee and, with the consent
of the Lessee, appoint a successor trustee by written instrument, in
duplicate, executed by a Responsible Officer of the Owner Trustee, one copy of
which instrument shall be delivered to the Indenture Trustee so removed and
one copy to the successor trustee, or, subject to the provisions of Section
7.13 hereof, any Holder who has been a bona fide Holder 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 Indenture Trustee
and the appointment of a successor trustee. Such court may thereupon, after
such notice, if any, as it may deem proper and prescribe, remove the Indenture
Trustee and appoint a successor trustee, which removal and appointment shall
become effective upon acceptance of appointment by the successor trustee as
provided in Section 12.04 hereof. The successor Indenture Trustee so
appointed by such court shall immediately and without further act be
superseded by any successor Indenture Trustee appointed as provided above
within one year from the date of appointment by such court.
Section 12.03. Persons Eligible for Appointment as Indenture
Trustee. There shall at all times be an Indenture Trustee hereunder which
shall be (i)(x) a bank or trust company organized and doing business under the
laws of the United States of America or any state or the District of Columbia
having a combined capital and surplus of at least $100,000,000 or (y) a bank
or trust company whose obligations hereunder are fully guaranteed by a direct
or indirect parent thereof having a combined capital and surplus of at least
$100,000,000 and (ii) a Citizen of the United States authorized under
applicable law to exercise corporate trust powers and subject to
supervision of examination by Federal, state or District of Columbia
authority. If such corporation publishes reports of condition at least
annually, pursuant to law or to the requirements of the aforesaid
supervising or examining authority, then for the purposes of this Section,
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
condition so published. In case at any time the Indenture Trustee shall
cease to be eligible in accordance with the provisions of this Section, the
Indenture Trustee shall resign immediately in the manner and with the
effect specified in Section 12.02 hereof.
Section 12.04. Acceptance of Appointment by Successor Trustee. Any
successor trustee appointed as provided in Section 12.02 hereof shall execute
and deliver to the Owner Trustee, the Lessee, and to its predecessor trustee
an instrument accepting such appointment hereunder, in form and substance
reasonably satisfactory to the Owner Trustee, and thereupon the resignation or
removal of the predecessor trustee shall become effective and such successor
trustee, without any further act, deed or conveyance, shall become vested with
all rights, powers, duties and obligations of its predecessor hereunder, with
like effect as if originally named as trustee herein; but, nevertheless, on
the written request of the Owner Trustee or of the successor trustee, upon
payment of its charges then unpaid, the trustee ceasing to act shall, subject
to Section 14.04 hereof, pay over to the successor trustee all moneys at the
time held by it hereunder and shall execute and deliver an instrument
transferring to such successor trustee all such rights, powers, duties and
obligations. Upon request of any such successor trustee, the Owner Trustee
shall execute any and all instruments in writing for more fully and certainly
vesting in and confirming to such successor trustee all such rights and
powers. Any trustee ceasing to act shall, nevertheless, retain a prior claim
upon all property or funds held or collected by such trustee to secure any
amounts then due it pursuant to the provisions of Article XI hereof.
No successor trustee shall accept appointment as provided in this
Section 12.04 unless at the time of such acceptance such successor trustee
shall be eligible under the provisions of Section 12.03 hereof.
Upon acceptance of appointment by a successor trustee as provided in
this Section 12.04, the successor trustee shall mail notice thereof by
first-class mail to the Holders at their last addresses as they shall appear
in the Register, and shall mail a copy of such notice to the Lessee and the
Owner Trustee. If the acceptance of appointment is substantially
contemporaneous with the resignation, then the notice called for by the
preceding sentence may be combined with the notice called for by Section 12.02
hereof.
Section 12.05. Merger, Conversion, Consolidation or Succession to
Business of Indenture Trustee. Any corporation into which the Indenture
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 Indenture Trustee shall be a party, or any corporation succeeding to
the corporate trust business of the Indenture Trustee, shall be the successor
to the Indenture Trustee hereunder, provided that, anything herein to the
contrary notwithstanding, such corporation shall be eligible under the
provisions of Section 12.03 hereof, without the execution or filing of any
paper or any further act on the part of any of the parties hereto.
In case at the time such successor to the Indenture Trustee shall
succeed to the trusts created by this Indenture any of the Certificates shall
have been authenticated but not delivered, any such successor to the Indenture
Trustee may adopt the certificate of authentication of any predecessor
Indenture Trustee and deliver such Certificates so authenticated; and, in case
at that time any of the Certificates shall not have been authenticated, any
successor to the Indenture Trustee may authenticate such Certificates either
in the name of any predecessor hereunder or in the name of the successor
Indenture Trustee; and in all such cases such certificate shall have the full
force which it is anywhere in the Certificates or in this Indenture provided
that the certificate of the Indenture Trustee shall have; provided, that the
right to adopt the certificate of authentication of any predecessor Indenture
Trustee or to authenticate Certificates in the name of any predecessor
Indenture Trustee shall apply only to its successor or successors by merger,
conversion or consolidation.
Section 12.06. Appointment of Separate Trustees. (a) At any
time or times, for the purpose of meeting any legal requirements of any
jurisdiction in which any part of the Trust Indenture Estate may at the
time be located or in which any action of the Indenture Trustee may be
required to be performed or taken, the Indenture Trustee, by an instrument
in writing signed by it, may appoint one or more individuals or
corporations to act as a separate trustee or separate trustees or co-
trustee, acting jointly with the Indenture Trustee, of all or any part of
the Trust Indenture Estate, to the full extent that local law makes it
necessary for such separate trustee or separate trustees or co-trustee
acting jointly with the Indenture Trustee to act.
(b) The Indenture Trustee and, at the request of the Indenture
Trustee, the Owner Trustee, shall execute, acknowledge and deliver all such
instruments as may be required by the legal requirements of any jurisdiction
or by any such separate trustee or separate trustees or co-trustee for the
purpose of more fully confirming such title, rights or duties to such separate
trustee or separate trustees or co-trustee. Upon the acceptance in writing of
such appointment by any such separate trustee or separate trustees or
co-trustee, it, he or they shall be vested with such title to the Trust
Indenture Estate or any part thereof, and with such rights, powers, duties and
obligations, as shall be specified in the instrument of appointment, and such
rights, powers, duties and obligations shall be conferred or imposed upon and
exercised or performed by the Indenture Trustee, or the Indenture Trustee and
such separate trustee or separate trustees or co-trustee jointly with the
Indenture Trustee subject to all the terms of this Indenture, except to the
extent that under any law of any jurisdiction in which any particular act or
acts are to be performed the Indenture Trustee shall be incompetent or
unqualified to perform such act or acts, in which event such rights, powers,
duties and obligations shall be exercised and performed by such separate
trustee or separate trustees or co-trustee, as the case may be. Any separate
trustee or separate trustees or co-trustee may, at any time by an instrument
in writing, constitute the Indenture Trustee its or his attorney-in-fact and
agent with full power and authority to do all acts and things and to exercise
all discretion on its or his behalf and in its or his name. In case any such
separate trustee or co-trustee shall die, become incapable of acting, resign
or be removed, the title to the Trust Indenture Estate and all assets,
property, rights, powers, duties and obligations and duties of such separate
trustee or co-trustee shall, so far as permitted by law, vest in and be
exercised by the Indenture Trustee, without the appointment of a successor to
such separate trustee or co-trustee unless and until a successor is appointed.
(c) All provisions of this Indenture which are for the benefit of
the Indenture Trustee (including without limitation Article XI hereof) shall
extend to and apply to each separate trustee or co-trustee appointed pursuant
to the foregoing provisions of this Section 12.06.
(d) Every additional trustee and separate trustee hereunder shall,
to the extent permitted by law, be appointed and act and the Indenture Trustee
shall act, subject to the following provisions and conditions:
(i) all powers, duties, obligations and rights conferred upon the
Indenture Trustee in respect of the receipt, custody, investment and
payment of moneys shall be exercised solely by the Indenture Trustee;
(ii) all other rights, powers, duties and obligations conferred or
imposed upon the Indenture Trustee shall be conferred or imposed and
exercised or performed by the Indenture Trustee and such additional trustee
or trustees and separate trustee or trustees jointly except to the extent
that under any law of any jurisdiction in which any particular act or acts
are to be performed, the Indenture Trustee shall be incompetent or
unqualified to perform such act or acts, in which event such rights,
powers, duties and obligations (including the holding of title to the Trust
Indenture Estate in any such jurisdiction) shall be exercised and performed
by such additional trustee or trustees or separate trustee or trustees;
(iii) no power hereby given to, or exercisable by, any such
additional trustee or separate trustee shall be exercised hereunder by
such additional trustee or separate trustee except jointly with, or with
the consent of, the Indenture Trustee; and
(iv) no trustee hereunder shall be liable either personally or in its
capacity as such trustee, by reason of any act or omission of any other
trustee hereunder.
If at any time the Indenture Trustee shall deem it no longer necessary or
prudent in order to conform to any such law, the Indenture Trustee shall
execute and deliver an indenture supplemental hereto and all other instruments
and agreements necessary or proper to remove any additional trustee or
separate trustee.
(e) Any request, approval or consent in writing by the Indenture
Trustee to any additional trustee or separate trustee shall be sufficient
warrant to such additional trustee or separate trustee, as the case may be, to
take such action as may be so requested, approved or consented to.
(f) Notwithstanding any other provision of this Section 12.06, the
powers of any additional trustee or separate trustee shall not exceed those of
the Indenture Trustee hereunder.
ARTICLE XIII
SUPPLEMENTS AND AMENDMENTS TO THIS
TRUST INDENTURE AND OTHER DOCUMENTS
Section 13.01. Supplemental Indentures Without Consent of Holders.
The Owner Trustee (when authorized by the Owner Participant) and the Indenture
Trustee, without consent of the Holders, may enter into an indenture or
indentures supplemental hereto for one or more of the following purposes:
(a) to convey, transfer, assign, mortgage or pledge any property or
assets to the Indenture Trustee as security for the Certificates;
(b) to evidence the succession of another corporation to the Owner
Trustee or successive successions, and the assumption by the successor
corporation of the covenants, agreements and obligations of the Owner
Trustee herein and in the Certificates;
(c) to add to the covenants of the Owner Trustee such further
covenants, restrictions, conditions or provisions as it and the Indenture
Trustee shall consider to be for the protection of the Holders, and to make
the occurrence, or the occurrence and continuance, of a default in any such
additional covenants, restrictions, conditions or provisions an Indenture
Event of Default permitting the enforcement of all or any of the several
remedies provided herein; provided, that in respect of any such additional
covenant, restriction, condition or provision such supplemental indenture
may provide for a particular period of grace after default (which period
may be shorter or longer than that allowed in the case of other defaults)
or may provide for an immediate enforcement upon such an Indenture Event of
Default or may limit the remedies available to the Indenture Trustee upon
such an Indenture Event of Default or may limit the right of not less than
the Majority in Interest of Certificate Holders to waive such an Indenture
Event of Default;
(d) to surrender any right or power conferred herein upon the Owner
Trustee or the Owner Participant;
(e) to cure any ambiguity or to correct or supplement any provision
contained herein or in any supplemental indenture which may be defective or
inconsistent with any other provision contained herein or in any
supplemental indenture; or to make such other provisions in regard to
matters or questions arising under this Indenture or under any supplemental
indenture as the Owner Trustee may deem necessary or desirable and which
shall not adversely affect the interests of the Holders;
(f) to correct or amplify the description of any property at any
time subject to the Lien of this Indenture or better to assure, convey and
confirm unto the Indenture Trustee any property subject or required to be
subject to the Lien of this Indenture or to subject Replacement Airframe or
Replacement Engines to the Lien of this Indenture in accordance with the
provisions hereof or with the Lease or to release from the Lien of this
Indenture property that has been substituted on or removed from the
Aircraft as contemplated in Section 3.07 hereof; provided that supplements
to this Indenture entered into for the purpose of subjecting Replacement
Airframe or Replacement Engines to the Lien of this Indenture need only be
executed by the Owner Trustee and the Indenture Trustee;
(g) to provide for the issuance under this Indenture of Certificates
in coupon form (including Certificates registrable as to principal only)
and to provide for exchangeability of such Certificates with Certificates
issued hereunder in fully registered form, and to make all appropriate
changes for such purpose;
(h) to effect the re-registration of the Aircraft pursuant to
Section 6.03(b) of the Participation Agreement; and
(i) to add, eliminate or change any provision hereunder so long as
such action shall not adversely affect the interests of the Holders.
The Indenture Trustee is hereby authorized to join in the execution
of any such supplemental indenture, to make any further appropriate agreements
and stipulations which may be contained therein and to accept the conveyance,
transfer, assignment, mortgage or pledge of any property thereunder, but the
Indenture Trustee shall not be obligated to enter into any such supplemental
indenture which adversely affects the Indenture Trustee's own rights, duties
or immunities under this Indenture or otherwise.
Any such supplemental indenture may be executed without the consent of
the Holders of Outstanding Certificates, notwithstanding any of the provisions
of Section 13.02 hereof.
Section 13.02. Supplemental Indentures With Consent of Holders.
With the consent (evidenced as provided in Article X) of the Majority in
Interest of Certificate Holders, the Owner Trustee (when authorized by the
Owner Participant) and the Indenture Trustee may, from time to time and at any
time, enter into an indenture or indentures supplemental hereto for the
purpose of adding any provisions to or changing in any manner or eliminating
any of the provisions of this Indenture or of any supplemental indenture or of
modifying in any manner the rights of the Holders; provided, however, that,
without the consent of each and every Holder and each Liquidity Provider, no
such amendment of or supplement to this Indenture or any indenture
supplemental hereto, or modification of the terms of, or consent under, any
thereof, shall (a) modify any of the provisions of Section 7.11 hereof or this
Section 13.02, (b) reduce the amount or extend the time of payment of any
amount owing or payable under any Certificate or reduce the interest payable
on any Certificate (except that only the consent of the Holder shall be
required for any decrease in any amounts of or the rate of interest payable on
such Certificate or any extension for the time of payment of any amount
payable under such Certificate), or alter or modify the provisions of Article
V hereof with respect to the order of priorities in which distributions
thereunder shall be made as among Holders of different Series of Certificates
or as between the Holder and the Owner Trustee or the Owner Participant or
with respect to the amount or time of payment of any such distribution, or
alter or modify the circumstances under which a Make-Whole Premium shall be
payable, or alter the currency in which any amount payable under any
Certificate is to be paid, or impair the right of any Holder to commence legal
proceedings to enforce a right to receive payment hereunder, (c) reduce,
modify or amend any indemnities in favor of any Holder or in favor of or to be
paid by the Owner Participant (except as consented to by each Person adversely
affected thereby), or (d) create or permit the creation of any Lien on the
Trust Indenture Estate or any part thereof prior to or pari passu with the
Lien of this Indenture, except as expressly permitted herein, or deprive any
Holder of the benefit of the Lien of this Indenture on the Trust Indenture
Estate, except as provided in Section 7.02 hereof or in connection with the
exercise of remedies under Article VII. This Section 13.02 shall not apply to
any indenture or indentures supplemental hereto permitted by, and complying
with the terms of, Section 13.06 hereof.
Upon the request of the Owner Trustee (at the direction of the Owner
Participant) and upon the filing with the Indenture Trustee of evidence of the
consent of Holders and other documents, if any, required by Section 10.01, the
Indenture Trustee shall join with the Owner Trustee and the Lessee in the
execution of such supplemental indenture unless such supplemental indenture
affects the Indenture Trustee's own rights, duties or immunities under this
Indenture or otherwise, in which case the Indenture Trustee may in its
discretion, but shall not be obligated to, enter into such supplemental
indenture.
It shall not be necessary for the consent of the Holders under this
Section to approve the particular form of any proposed supplemental indenture,
but it shall be sufficient if such consent shall approve the substance
thereof.
Promptly after the execution by the Owner Trustee, the Indenture
Trustee and the Lessee of any supplemental indenture pursuant to the
provisions of this Section, the Indenture Trustee shall mail a notice thereof
by first-class mail to the Holders at their addresses as they shall appear on
the registry books of the Registrar, setting forth in general terms the
substance of such supplemental indenture. Any failure of the Indenture
Trustee to mail such notice, or any defect therein, shall not, however, in any
way impair or affect the validity of any such supplemental indenture.
Section 13.03. Effect of Supplemental Indenture. Upon the execution
of any supplemental indenture pursuant to the provisions hereof, this
Indenture shall be and be deemed to be modified and amended in accordance
therewith and the respective rights, limitations of rights, obligations,
duties and immunities under this Indenture of the Indenture Trustee, the Owner
Trustee, the Lessee and the Holders shall thereafter be determined, exercised
and enforced hereunder subject in all respects to such modifications and
amendments, and all the terms and conditions of any such supplemental
indenture shall be and be deemed to be part of the terms and conditions of
this Indenture for any and all purposes.
Section 13.04. Documents to Be Given to Indenture Trustee. The
Indenture Trustee, subject to the provisions of Sections 9.02 and 9.03, may
receive an Officer's Certificate and an Opinion of Counsel as conclusive
evidence that any such supplemental indenture complies with the applicable
provisions of this Indenture.
Section 13.05. Notation on Certificates in Respect of Supplemental
Indentures. Certificates authenticated and delivered after the execution of
any supplemental indenture pursuant to the provisions of this Article may bear
a notation in form approved by the Indenture Trustee as to any matter provided
for by such supplemental indenture. If the Owner Trustee or the Indenture
Trustee shall so determine, new Certificates so modified as to conform, in the
opinion of the Owner Trustee and the Indenture Trustee, to any modification of
this Indenture contained in any such supplemental indenture may be prepared by
the Owner Trustee, authenticated by the Indenture Trustee and delivered in
exchange for the Outstanding Certificates.
Section 13.06. No Request Necessary for Lease Supplement or
Indenture and Security Agreement Supplement. Notwithstanding anything
contained in Section 13.02 hereof, no written request or consent of the
Indenture Trustee, any Holder or the Owner Participant pursuant to Section
13.02 hereof shall be required to enable the Owner Trustee to enter into
any supplement to the Lease with the Lessee in accordance with the terms
and conditions of the Lease to subject a Replacement Airframe or
Replacement Engine thereto or to execute and deliver an Indenture and
Security Agreement Supplement pursuant to the terms hereof.
Section 13.07. Notices to Liquidity Providers. Any request made to
any Holder for consent to any amendment, supplement or waiver pursuant to
Section 7.11, 8.01 or this Article XIII shall be promptly furnished by the
Indenture Trustee to each Liquidity Provider.
ARTICLE XIV
SATISFACTION AND DISCHARGE OF INDENTURE;
UNCLAIMED MONEYS
Section 14.01. Satisfaction and Discharge of Indenture; Termination
of Indenture. If at any time after (a) the Owner Trustee shall have paid or
caused to be paid the principal of and interest on all the Certificates
outstanding hereunder, as and when the same shall have become due and payable,
or (b) the Owner Trustee shall have delivered to the Indenture Trustee for
cancellation all Certificates theretofore authenticated (other than any
Certificates which shall have been destroyed, lost or stolen and which shall
have been replaced or paid as provided in Section 2.07 hereof) or (c) (i) all
such Certificates not theretofore delivered to the Indenture Trustee for
cancellation shall have become due and payable, or are by their terms to
become due and payable within one year or are to be called for prepayment
within one year under arrangements satisfactory to the Indenture Trustee for
the giving of notice of prepayment by the Indenture Trustee in the name and at
the expense of the Owner Trustee, and (ii) the Owner Trustee shall have
irrevocably deposited or caused to be deposited with the Indenture Trustee as
trust funds the entire amount in cash (other than moneys repaid by the
Indenture Trustee or any paying agent to the Owner Trustee in accordance with
Section 14.04 hereof) or Government obligations maturing as to principal and
interest in such amounts and at such times as will insure the availability of
cash sufficient to pay at maturity all such Certificates not theretofore
delivered to the Indenture Trustee for cancellation, including principal and
interest due or to become due to such date of maturity as the case may be, and
if, in any such case, the Owner Trustee shall also pay or cause to be paid all
other sums then payable hereunder by the Owner Trustee, then this Indenture
shall cease to be of further effect (except in the case of (c) above as to (A)
rights of registration of transfer and exchange, and the Owner Trustee's right
of optional prepayment pursuant to Section 6.02(a)(ii) hereof, (B)
substitution of mutilated, defaced, destroyed, lost or stolen Certificates,
(C) rights of Holders to receive payments of principal thereof and interest
thereon, upon the original stated due dates therefor (but not upon
acceleration), (D) the rights, obligations, indemnities and immunities of the
Indenture Trustee hereunder and (E) the rights of the Holders as beneficiaries
hereof with respect to the property so deposited with the Indenture Trustee
payable to all or any of them), and the Indenture Trustee, on demand of the
Owner Trustee accompanied by an Officer's Certificate and an Opinion of
Counsel (covering such matters reasonably requested by, and in form and
substance reasonably satisfactory to, the Indenture Trustee) and at the cost
and expense of the Owner Trustee, shall execute proper instruments
acknowledging such satisfaction of and discharging this Indenture. The Owner
Trustee agrees to reimburse and indemnify the Indenture Trustee for any costs
or expenses thereafter reasonably and properly incurred and to compensate the
Indenture Trustee for any services thereafter reasonably and properly rendered
by the Indenture Trustee in connection with this Indenture or the
Certificates.
Upon (or at any time after) payment in full to the Indenture Trustee,
as trust funds, of the principal of and interest on and Make-Whole Premium, if
any, and all other amounts due hereunder and under all Certificates and
provided that there shall then be no other amounts due to the Indenture
Trustee hereunder or under the Participation Agreement or otherwise secured
hereby, the Owner Trustee shall direct the Indenture Trustee to execute and
deliver to or as directed in writing by the Owner Trustee an appropriate
instrument releasing the Aircraft from the Lien of this Indenture and
releasing the Indenture Documents from the assignment thereof hereunder, and
the Indenture Trustee shall execute and deliver such instrument as aforesaid
and, at the Owner Trustee's expense, will execute and deliver such other
instruments or documents as may be reasonably requested by the Owner Trustee
to give effect to such release; provided, however, that this Indenture and the
trusts created hereby shall terminate earlier and this Indenture shall be of
no further force or effect upon any sale or other final disposition by the
Indenture Trustee of all property forming a part of the Trust Indenture Estate
and the final distribution by the Indenture Trustee of all moneys or other
property or proceeds constituting part of the Trust Indenture Estate in
accordance with the terms hereof. Except as aforesaid otherwise provided,
this Indenture and the trusts created hereby shall continue in full force
and effect in accordance with the terms hereof.
Section 14.02. Application by Indenture Trustee of Funds Deposited
for Payment of Certificates. Subject to Section 14.04 hereof, all moneys
deposited with the Indenture Trustee pursuant to Section 14.01 hereof shall be
held in trust and applied by it to the prompt payment, either directly or
through any Paying Agent, to the Holders of the particular Certificates for
the payment or prepayment of which such moneys have been deposited with the
Indenture Trustee, of all sums due and to become due thereon for principal,
interest and Make-Whole Premium, if any, but such money need not be segregated
from other funds except to the extent required by law.
Section 14.03. Repayment of Moneys Held by Paying Agent. Upon the
satisfaction and discharge of this Indenture all moneys then held by any
Paying Agent under the provisions of this Indenture shall, upon demand of the
Owner Trustee, be repaid to it or paid to the Indenture Trustee and thereupon
such Paying Agent shall be released from all further liability with respect to
such moneys.
Section 14.04. Transfer of Moneys Held by Indenture Trustee and
Paying Agent Unclaimed for Two Years and Eleven Months. Any moneys deposited
with or paid to the Indenture Trustee or any Paying Agent for the payment of
the principal of or interest or Make-Whole Premium on any Certificate and not
applied but remaining unclaimed for two years and eleven months after the date
upon which such principal, interest or Make-Whole Premium shall have become
due and payable, shall, unless otherwise required by mandatory provisions of
applicable escheat or abandoned or unclaimed property law, be paid to the
Owner Trustee (or, if the Trust Agreement shall no longer be in effect, to the
Owner Participant) by the Indenture Trustee or such Paying Agent and the
Holder of such Certificate, as a general unsecured creditor, shall, unless
otherwise required by mandatory provisions of applicable escheat or abandoned
or unclaimed property laws, thereafter look only to the Owner Trustee (or the
Owner Participant) for any payment which such Holder may be entitled to
collect, and all liability of the Indenture Trustee, or any Paying Agent with
respect to such moneys shall thereupon cease.
ARTICLE XV
MISCELLANEOUS
Section 15.01. Capacity in Which Acting. Each of SSB (or its
permitted successors or assigns) and the Indenture Trustee acts hereunder not
in its individual capacity but solely as trustee except as expressly provided
herein and in the other Operative Documents, and, in the case of SSB (or its
permitted successors or assigns), in the Trust Agreement.
Section 15.02. No Legal Title to Trust Indenture Estate in Holders.
No Holder shall have legal title to any part of the Trust Indenture Estate.
No transfer, by operation of law or otherwise, of any Certificate or other
right, title and interest of any Holder in and to the Trust Indenture Estate
or hereunder shall operate to terminate this Indenture or entitle such Holder
or any successor or transferee of such Holder to an accounting or to the
transfer to it of legal title to any part of the Trust Indenture Estate.
Section 15.03. Sale of Trust Indenture Estate by Indenture
Trustee is Binding. Any sale or other conveyance of all or any part of the
Trust Indenture Estate by the Indenture Trustee made pursuant to the terms
of this Indenture or of the Lease shall bind the Lessee, the Owner Trustee,
the Holders and the Owner Participant and shall be effective to transfer or
convey all right, title and interest of the Indenture Trustee, the Owner
Trustee, the Owner Participant and such Holders therein and thereto. No
purchaser or other grantee shall be required to inquire as to the
authorization, necessity, expediency or regularity of such sale or
conveyance or as to the application of any sale or other proceeds with
respect thereto by the Indenture Trustee.
Section 15.04. Indenture for Benefit of Owner Trustee, Indenture
Trustee, Owner Participant, Holders and Liquidity Providers. Nothing in this
Indenture, whether express or implied, shall be construed to give to any
person other than SSB, the Owner Trustee, the Lessee, the Indenture Trustee,
as trustee and in its individual capacity, the Owner Participant, each
Liquidity Provider and the Holders any legal or equitable right, remedy or
claim under or in respect of this Indenture. Upon termination of this
Indenture pursuant to Article XIV hereof, the Indenture Trustee in connection
with the satisfaction of the Indenture shall return to the Owner Trustee all
property (and related documents and instruments) constituting or evidencing
the Trust Indenture Estate.
Section 15.05. No Action Contrary to the Lessee's Rights Under the
Lease. Notwithstanding any of the provisions of this Indenture or the Trust
Agreement to the contrary, so long as no Event of Default shall have occurred
and be continuing, neither the Indenture Trustee nor the Owner Trustee will
take any affirmative acts that interfere with the peaceful and quiet
possession and enjoyment of the Aircraft by the Lessee.
Section 15.06. Notices. Unless otherwise expressly specified or
permitted by the terms hereof, all notices, requests, demands, authorizations,
directions, consents, waivers or documents provided or permitted by this
Indenture to be made, given, furnished or filed shall be in writing, mailed by
certified mail, postage prepaid, or by confirmed telecopy, and (a) if to the
Owner Trustee, addressed to it c/o State Street Bank and Trust Company, Two
International Place, 4th Floor, Boston, Massachusetts 02110 (telephone: (617)
664-5526, facsimile: (617) 664-5371), Attention: Corporate Trust Department
(with a copy to the Owner Participant at the address provided for notice
pursuant to Section 14.01 of the Participation Agreement), (b) if personally
delivered to the Indenture Trustee, addressed to it at its office at 79 South
Main Street, Salt Lake City, Utah 84111 (telephone: (801) 246-5630, facsimile:
(801) 246-5053), Attention: Corporate Trust Department or (c) if to the Owner
Participant, a Liquidity Provider or the Lessee, addressed to such party at
such address as such party shall have furnished by notice to the Owner Trustee
and the Indenture Trustee, or, until an address is so furnished, addressed to
the address of such party if any, set forth in Section 14.01 of the
Participation Agreement. Any party hereto may change the address to which
notices to such party will be sent by giving notice of such change to the
other parties to this Indenture.
Where this Indenture provides for notice to Holders, such notice
shall be sufficiently given (unless otherwise expressly provided herein) if in
writing and mailed, first-class postage prepaid, to each Holder entitled
thereto, at such Holder's last address as it appears in the Register. In any
case where notice to Holders is given by mail, neither the failure to mail
such notice, nor any defect in any notice so mailed, to any particular Holder
shall affect the sufficiency of such notice with respect to other Holders.
Where this Indenture provides for notice in any manner, such notice may be
waived in writing by the person entitled to receive such notice, either before
or after the event, and such waiver shall be the equivalent of such notice.
Waivers of notice by Holders shall be filed with the Indenture Trustee, but
such filing shall not be a condition precedent to the validity of any action
taken in reliance upon such waiver.
In case, by reason of the suspension of or irregularities in regular
mail service, it shall be impracticable to mail notice to the Owner Trustee
and Holders when such notice is required to be given pursuant to any provision
of this Indenture, then any manner of giving such notice as shall be
satisfactory to the Indenture Trustee shall be deemed to be a sufficient
giving of such notice.
Section 15.07. Officer's Certificates and Opinions of Counsel;
Statements to Be Contained Therein. Upon any application or demand by the
Lessee or the Owner Trustee to the Indenture Trustee to take any action under
any of the provisions of this Indenture, the Lessee or the Owner Trustee, as
the case may be, shall furnish to the Indenture Trustee upon request (a) an
Officer's Certificate stating that all conditions precedent provided for in
this Indenture relating to the proposed action have been complied with and
that the proposed action is in conformity with the requirements of this
Indenture, and (b) 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 demand as to which the furnishing
of such documents is specifically required by any provision of this Indenture
relating to such particular application or demand, no additional certificate
or opinion need be furnished.
Any certificate, statement or opinion of an officer of SSB may be
based, insofar as it relates to legal matters, upon a certificate or opinion
of or representations by counsel, unless such officer knows that the
certificate or opinion or representations with respect to the matters upon
which his certificate, statement or opinion may be based as aforesaid are
erroneous, or in the exercise of reasonable care should know that the same are
erroneous. Any certificate, statement or opinion of counsel may be based,
insofar as it relates to factual matters information with respect to which is
in the possession of the Lessee or SSB, upon the certificate, statement or
opinion of or representations by an officer or officers of the Lessee or SSB,
as the case may be, unless such counsel knows that the certificate, statement
or opinion or representations with respect to the matters upon which his
certificate, statement or opinion may be based as aforesaid are erroneous, or
in the exercise of reasonable care should know that the same are erroneous.
Any certificate, statement or opinion of an officer of the Lessee or
SSB or of counsel thereto may be based, insofar as it relates to accounting
matters, upon a certificate or opinion of or representations by an accountant
or firm of accountants employed by the Lessee or the Owner Trustee, as the
case may be, unless such officer or counsel, as the case may be, knows that
the certificate or opinion or representations with respect to the accounting
matters upon which his certificate, statement or opinion may be based as
aforesaid are erroneous, or in the exercise of reasonable care should know
that the same are erroneous.
Any certificate or opinion of any independent firm of public
accountants filed with the Indenture Trustee shall contain a statement that
such firm is independent.
Section 15.08. Severability. Any provision of this Indenture which
is prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and any
such prohibition or unenforceability in any jurisdiction shall not invalidate
or render unenforceable such provision in any other jurisdiction.
Section 15.09. No Oral Modifications or Continuing Waivers. No
terms or provisions of this Indenture or the Certificates may be changed,
waived, discharged or terminated orally, but only by an instrument in writing
signed by the party or other person against whom enforcement of the change,
waiver, discharge or termination is sought; and any waiver of the terms hereof
or of any Certificate shall be effective only in the specific instance and for
the specific purpose given.
Section 15.10. Successors and Assigns. All covenants and agreements
contained herein shall be binding upon, and inure to the benefit of, each of
the parties hereto and the successors and permitted assigns of each, all as
herein provided. Any request, notice, direction, consent, waiver or other
instrument or action by any Holder shall bind the successors and assigns of
such Holder. This Indenture and the Trust Indenture Estate shall not be
affected by any amendment or supplement to the Trust Agreement or by any other
action taken under or in respect of the Trust Agreement, except that each
reference in this Indenture to the Trust Agreement shall mean the Trust
Agreement as amended and supplemented from time to time to the extent
permitted hereby and thereby.
Section 15.11. Headings. The headings of the various Articles and
Sections herein and in the table of contents hereto are for the convenience of
reference only and shall not define or limit any of the terms or provisions
hereof.
Section 15.12. Normal Commercial Relations. Anything contained in
this Indenture to the contrary notwithstanding, the Owner Participant, the
Indenture Trustee and any Holder, or any bank or other affiliate of any such
party, may conduct any banking or other financial transactions, and have
banking or other commercial relationships, with the Lessee fully to the same
extent as if this Indenture were not in effect, including without limitation
the making of loans or other extensions of credit to the Lessee for any
purpose whatsoever, whether related to any of the transactions contemplated
hereby or otherwise.
Section 15.13. Governing Law; Counterparts. THIS INDENTURE AND
EACH CERTIFICATE SHALL IN ALL RESPECTS BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK, INCLUDING ALL MATTERS OF
CONSTRUCTION, VALIDITY AND PERFORMANCE. This Indenture may be executed by the
parties hereto in separate counterparts, each of which when so executed and
delivered shall be an original, but all such counterparts shall together
constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed this 28th day of May, 1997 by their respective officers
thereunto duly authorized and acknowledge that this Indenture has been made
and delivered in the City of New York, and this Indenture shall be effective
only upon such execution and delivery.
STATE STREET BANK AND TRUST COMPANY
OF CONNECTICUT, NATIONAL ASSOCIATION,
not in its individual capacity,
except as specifically set forth herein
but solely as Owner Trustee
By_____________________________________________
Name: Paul D. Allen
Title: Vice President
FIRST SECURITY BANK,
NATIONAL ASSOCIATION,
not in its individual capacity,
but solely as Indenture Trustee
By_____________________________________________
Name: Greg A. Hawley
Title: Vice President
Exhibit A
to
Trust Indenture and Security Agreement
Indenture and Security Agreement Supplement No. ___
Indenture and Security Agreement Supplement No. ___ (Federal Express
Corporation Trust No. N670FE) dated ________, ____, of STATE STREET BANK AND
TRUST COMPANY OF CONNECTICUT, NATIONAL ASSOCIATION, a national banking
association, not in its individual capacity but solely as owner trustee
(herein called the "Owner Trustee") under the Trust Agreement dated as of May
1, 1997 (the "Trust Agreement") between State Street Bank and Trust Company of
Connecticut, National Association and the Owner Participant named therein.
W I T N E S S E T H :
WHEREAS, the Trust Agreement provides for the execution and delivery
of this Indenture and Security Agreement Supplement which shall particularly
describe the Aircraft and any Replacement Airframe or Replacement Engine
included in the property covered by the Trust Agreement.
WHEREAS, the Trust Indenture and Security Agreement (Federal
Express Corporation Trust No. N670FE) dated as of May 1, 1997 (the
"Indenture") between the Owner Trustee and First Security Bank, National
Association (herein called the "Indenture Trustee") provides for the
execution and delivery of an Indenture and Security Agreement Supplement
substantially in the form of this Indenture and Security Agreement
Supplement No. __, which Supplement shall particularly describe the
Aircraft included in the Trust Indenture Estate, and shall specifically
mortgage such Aircraft to the Indenture Trustee.
(1)WHEREAS, the Indenture relates to the Aircraft and the Engines
described in the following paragraph and a counterpart of the Indenture is
attached to and made a part of this Indenture and Security Agreement
Supplement No. 1, and this Indenture and Security Agreement Supplement No. 1,
together with such attachment, is being filed for recordation on or promptly
after the date of this Supplement No. 1 with the Federal Aviation
Administration as one document.
- --------------
(1)This recital is to be included only in the first Indenture Supplement.
(2)Whereas, the Indenture and Indenture and Security Agreement
Supplement No. ___ dated _________________, ______ (the Indenture being
attached to and made a part of such Indenture and Security Agreement
Supplement and filed therewith) have been duly recorded pursuant to Subtitle
VII of Title 49 of the United States Code, on ____________, _____, as one
document and have been assigned Conveyance No. _________.
- --------------
(2)This recital is to be included only in the first Indenture Supplement.
NOW, THEREFORE, this Supplement witnesseth, that, to secure the
prompt payment of the principal of and Make-Whole Premium, if any, and
interest on, and all other amounts due with respect to, all Outstanding
Certificates under the Indenture and all other amounts due hereunder and
the performance and observance by the Owner Trustee of all the agreements,
covenants and provisions for the benefit of the Holders contained in the
Indenture, in the Lease, in the Participation Agreement and the
Certificates, and the prompt payment of any and all amounts from time to
time owing under the Participation Agreement by the Owner Trustee, the
Owner Participant or the Lessee to the Holders and for the uses and
purposes and subject to the terms and provisions of the Indenture and the
Certificates, and in consideration of the premises and of the covenants
contained in the Indenture, and of the purchase of the Certificates by the
Holders, and of the sum of $1 paid to the Owner Trustee by the Indenture
Trustee at or before the delivery of the Indenture, the receipt of which is
hereby acknowledged, the Owner Trustee has granted, bargained, sold,
assigned, transferred, conveyed, mortgaged, pledged, granted a security
interest in, and confirmed, and does hereby grant, bargain, sell, assign,
transfer, convey, mortgage, pledge, grant a security interest in, and
confirm, unto the Indenture Trustee, its successors and assigns, in trust
for the equal and ratable security and benefit of the Holders, in the trust
created by the Indenture, and subject to all of the terms, conditions,
provisions and limitations set forth in the Indenture, a first priority
security interest in and mortgage lien on all estate, right, title and
interest of the Owner Trustee in, to and under the following described
property:
Airframe
One (1) Airframe identified as follows:
FAA Manufacturer's
Registration Serial
Manufacturer Model Number Number
- ------------ ----- ------------ ---------------
together with all appliances, equipment, instruments and accessories
(including, without limitation, radio and radar) from time to time belonging
thereto, owned by the Owner Trustee and installed in or appurtenant to said
aircraft.
AIRCRAFT ENGINES
Two (2) aircraft engines, each such engine having 750 or more rated takeoff
horsepower or the equivalent thereof, identified as follows:
Manufacturer's
Serial
Manufacturer Model Number
- ------------ ----- --------------
together with all equipment and accessories belonging thereto, by whomsoever
manufactured, owned by the Owner Trustee and installed in or appurtenant to
said aircraft engines.
Together with all substitutions, replacements and renewals of the
property described above, and all property which shall hereafter become
physically attached to or incorporated in the property described above,
whether the same are now owned by the Owner Trustee or shall hereafter be
acquired by it.
As further security for the obligations referred to above and secured
by the Indenture and hereby, the Owner Trustee has granted, bargained, sold,
assigned, transferred, conveyed, mortgaged, pledged and confirmed, and does
hereby grant, bargain, sell, assign, transfer, convey, mortgage, pledge and
confirm, unto the Indenture Trustee, its successors and assigns, for the
security and benefit of the Holders, in the trust created by the Indenture,
and subject to all of the terms, conditions, provisions and limitations set
forth in the Indenture, all of the estate, right, title and interest of the
Owner Trustee in, to and under the Lease Supplement (other than Excepted
Payments, if any) covering the property described above.
TO HAVE AND TO HOLD all and singular the aforesaid property unto the
Indenture Trustee, its successors and assigns, for the benefit and security of
the Holders for the uses and purposes and subject to the terms and provisions
set forth in the Indenture.
This Supplement shall be construed as supplemental to the Indenture
and shall form a part thereof, and the Indenture is hereby incorporated by
reference herein and is hereby ratified, approved and confirmed.
This Supplement is being delivered in the State of New York.
AND, FURTHER, the Owner Trustee hereby acknowledges that the
Aircraft/Engines referred to in this Supplement and the aforesaid Lease
Supplement has been delivered to the Owner Trustee and is included in the
property of the Owner Trustee and covered by all the terms and conditions of
the Trust Agreement, subject to the Lien of the Indenture.
IN WITNESS WHEREOF, the Owner Trustee has caused this Supplement to
be duly executed as of the date first written above by one of its officers
thereunto duly authorized.
STATE STREET BANK AND TRUST COMPANY
OF CONNECTICUT, NATIONAL ASSOCIATION,
not in its individual capacity,
except as specifically set forth herein
but solely as Owner Trustee
By_____________________________________________
Name: Paul D. Allen
Title: Vice President
Exhibit B
to
Trust Indenture and Security Agreement
[Form of Certificate]
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY
NOT BE SOLD OR OFFERED FOR SALE IN CONTRAVENTION OF SAID ACT
No. ______ $_____________
EQUIPMENT TRUST CERTIFICATE
(Federal Express Corporation Trust No. N670FE)
STATE STREET BANK AND TRUST COMPANY OF CONNECTICUT,
NATIONAL ASSOCIATION
not in its individual capacity but solely as
OWNER TRUSTEE UNDER TRUST AGREEMENT
(Federal Express Corporation Trust No. N670FE)
dated as of May 1, 1997
SERIES ___
Interest Rate Maturity
State Street Bank and Trust Company of Connecticut, National
Association, a national banking association, not in its individual capacity
but solely as Owner Trustee (herein in such capacity called the "Owner
Trustee") under that certain Trust Agreement (Federal Express Corporation
Trust No. N670FE) dated as of May 1, 1997, between the Owner Participant named
therein and State Street Bank and Trust Company of Connecticut, National
Association (herein as such Trust Agreement may be amended or supplemented
from time to time called the "Trust Agreement"), hereby promises to pay to
FIRST SECURITY BANK, NATIONAL ASSOCIATION, as Subordination Agent, or its
registered assigns, the principal sum of ________________ _______________
Dollars, payable as set forth below for the Maturity specified above, in such
coin or currency of the United States of America as at the time of payment
shall be legal tender for the payment of public and private debts, and to pay
interest on the principal outstanding from time to time, semiannually on each
January 15 and July 15, on said principal sum in like coin or currency at the
rate per annum set forth above from the January 15 or the July 15, as the case
may be, next preceding the date of this Certificate to which interest on the
Certificates has been paid or duly provided for, unless the date hereof is a
date to which interest on the Certificates has been paid or duly provided for,
in which case from the date of this Certificate. Notwithstanding the
foregoing, if the date hereof is after any January 15 or July 15 and before
the following January 15 or July 15, as the case may be, this Certificate
shall bear interest from such January 15 or July 15; provided that, if the
Owner Trustee shall default in the payment of interest due on such January
15 or July 15, then this Certificate shall bear interest from the next
preceding January 15 or July 15 to which interest on this Certificate has
been paid or duly provided for. The interest so payable on any January 15
or July 15 will, except as otherwise provided in the Indenture referred to
below, be paid to the person in whose name this Certificate is registered
at the close of business on the January 15 or July 15 preceding such
January 15 or July 15, whether or not such day is a Business Day.
This Certificate shall bear interest at the Past Due Rate on any
principal hereof and on any other amount payable hereunder or under the
Indenture which shall not be paid in full when due (whether at stated
maturity, by acceleration, by mandatory prepayment or otherwise), for the
period from and including the date thereof to but excluding the date the same
is paid in full, payable from time to time on demand of the Indenture Trustee.
Principal and interest and other amounts due hereunder shall be
payable at the office or agency of First Security Bank, National Association
(the "Indenture Trustee") maintained for such purpose in immediately available
funds prior to 10:30 A.M. (New York time) on the due date thereof and the
Indenture Trustee shall remit all such amounts received by it to the Holders
at such account or accounts at such financial institution or institutions as
the Holders shall have designated to the Indenture Trustee in writing, in
immediately available funds, such payment to be made if the payment was
received prior to 10:30 A.M. New York time by the Indenture Trustee on any
Business Day, by 12:00 noon New York time on such Business Day; otherwise, the
Indenture Trustee shall make payment promptly, but not later than 11:00 A.M.
New York time on the next succeeding Business Day; provided that, at the
option of the Indenture Trustee or its Paying Agent, interest may be paid by
mailing a check therefor payable to or upon the written order of the
registered holder entitled thereto at his last address as it appears on the
Register. If any amount payable under this Certificate, or under the
Indenture, falls due on a day that is not a Business Day, then such sum shall
be payable on the next succeeding Business Day, without (provided that payment
is made on such next succeeding Business Day) additional interest thereon for
the period of such extension.
State Street Bank and Trust Company of Connecticut, National
Association and First Security Bank, National Association are not acting
individually hereunder, but solely as Owner Trustee and Indenture Trustee,
respectively.
Any Person, other than the Subordination Agent, who is acquiring the
Certificates will be deemed to represent and warrant that (i) no assets of an
employee benefit plan subject to Title I of ERISA or an individual retirement
account or plan subject to Section 4975 of the Code, or any trust established
under any such plan or account, have been used to acquire or hold any of the
Certificates, or (ii) that one or more administrative or statutory exemptions
from the prohibited transaction rules under Section 406 of ERISA and Section
4975 of the Code applies to its purchase and holding of the Certificates such
that its purchase and holding of the Certificates will not result in a
non-exempt prohibited transaction under Section 406 of ERISA and Section 4975
of the Code.
This Certificate is one of a duly authorized issue of Certificates
issued and to be issued under the Trust Indenture and Security Agreement
(Federal Express Corporation Trust No. N670FE) dated as of May 1, 1997 (herein
as amended, supplemented or modified from time to time called the "Indenture")
between the Owner Trustee and the Indenture Trustee, designated as Equipment
Trust Certificates (Federal Express Corporation Trust No. N670FE) limited in
aggregate initial principal amount to $62,392,000 consisting of the
following aggregate principal amounts of Certificates with the interest rates
per annum and Maturities shown:
Initial
Aggregate
Principal
Series Maturity Amount Interest Rate
------ -------- --------- -------------
A January 15, 2017 $33,352,000 7.50%
B January 15, 2018 $12,507,000 7.52%
C January 15, 2014 $16,533,000 7.65%
Reference is made to the Indenture and all supplements and amendments
thereto (a copy of which is on file with the Indenture Trustee at its
principal corporate trust office) for a more complete statement of the terms
and provisions thereof, including a statement of the properties conveyed,
pledged and assigned thereby, the nature and extent of the security, the
respective rights of the Owner Trustee, the Owner Participant, the Lessee, the
Indenture Trustee and the Holders, and the terms upon which the Certificates
are, and are to be, executed and delivered, to all of which terms and
conditions in the Indenture each Holder hereof agrees by its acceptance of
this Certificate.
Capitalized terms not otherwise defined herein shall have the
meanings given to them in the Indenture.
The principal amounts of the Certificates are payable as follows. The
Certificates are subject to redemption in part, pro rata (based on the face
amount thereof), in each case through mandatory sinking fund redemptions
providing for the redemption on the Sinking Fund Redemption Dates of the
aggregate principal amounts set forth below, together with interest accrued
thereon to the applicable Sinking Fund Redemption Date, but without Make-Whole
Premium.
Principal Amount
<TABLE>
<CAPTION>
Series A Certificates Series B Certificates Series C Certificates
Sinking Fund with a Maturity of with a Maturity of with a Maturity of
Redemption Date January 15, 2017 January 15, 2018 January 15, 2014
- --------------------------- --------------------- --------------------- ---------------------
<S> <C> <C> <C>
January 15, 1998 292,850 250,140 190,520
July 15, 1998 374,190 0 0
January 15, 1999 155,254 250,140 333,520
July 15, 1999 511,786 0 0
January 15, 2000 149,287 250,140 333,520
July 15, 2000 517,753 0 0
January 15, 2001 245,388 250,140 333,520
July 15, 2001 421,652 0 0
January 15, 2002 447,707 250,140 333,520
July 15, 2002 219,333 0 0
January 15, 2003 667,040 250,140 427,042
July 15, 2003 0 0 0
January 15, 2004 667,040 250,140 757,173
July 15, 2004 0 0 0
January 15, 2005 667,040 250,140 865,719
July 15, 2005 0 0 0
January 15, 2006 667,040 250,140 835,803
July 15, 2006 0 0 0
January 15, 2007 667,040 250,140 3,783,765
July 15, 2007 0 0 0
January 15, 2008 667,040 250,140 676,225
July 15, 2008 0 0 0
January 15, 2009 667,040 250,140 1,788,770
July 15, 2009 0 0 0
January 15, 2010 667,040 250,140 1,742,978
July 15, 2010 0 0 0
January 15, 2011 667,040 2,179,510 758,530
July 15, 2011 0 0 0
January 15, 2012 667,040 3,178,951 0
July 15, 2012 0 0 0
January 15, 2013 2,910,012 2,059,773 0
July 15, 2013 0 0 0
January 15, 2014 1,987,488 0 3,372,395
July 15, 2014 0 0 0
January 15, 2015 5,780,164 0 0
July 15, 2015 0 0 0
January 15, 2016 6,230,567 0 0
July 15, 2016 0 0 0
January 15, 2017 6,438,169 277,926 0
January 15, 2018 0 1,559,020 0
</TABLE>
Except as expressly provided in the Indenture, all payments of
principal, Make-Whole Premium, if any, and interest and other amounts to be
made to the Holder hereof by or at the behest of the Owner Trustee hereunder
or under the Indenture shall be made only from the income and proceeds from
the Lessor's Estate to the extent included in the Trust Indenture Estate and
only to the extent that the Owner Trustee shall have sufficient income or
proceeds from the Lessor's Estate to the extent included in the Trust
Indenture Estate to enable the Indenture Trustee to make such distributions in
accordance with the terms of the Indenture; provided that under the Lease, the
Lessee is obligated to pay or cause to be paid, to the extent such payments
are not required to be made from the assets subject to the Lien of this
Indenture or the income and proceeds received by the Indenture Trustee
therefrom, any net loss arising from the investment of funds held by the
Indenture Trustee which but for an Event of Default would be payable to
Lessee, and each Holder hereof, by its acceptance of this Certificate, agrees
that it will (except as aforesaid) look solely to the income and proceeds from
the Trust Indenture Estate to the extent available for distribution to the
Holder hereof as provided above and that neither the Owner Participant, the
Owner Trustee, State Street Bank and Trust Company of Connecticut, National
Association nor the Indenture Trustee is personally liable to the Holder
hereof for any amounts payable or any liability under this Certificate or
under the Indenture, except as expressly provided in the Indenture, in the
case of State Street Bank and Trust Company of Connecticut, National
Association, the Owner Trustee and the Indenture Trustee.
The Certificates are subject to prepayment in the following
circumstances at the price determined as set forth below.
(i) If an Event of Loss occurs with respect to the Airframe or with
respect to the Airframe and the Engines or engines then installed on the
Airframe (unless pursuant to Section 11.03 of the Lease and Section 9.08 of
the Indenture replacement equipment is substituted therefor).
(ii) If the Lessee, pursuant to Section 4.02(a) of the Lease, gives
notice of purchase of the Aircraft (and the Lessee shall not have revoked
such notice or effected an assumption of the Certificates as provided in
Section 2.12 of the Indenture).
(iii) If the Owner Participant or the Owner Trustee on behalf of the
Owner Participant gives notice of prepayment to the Indenture Trustee
pursuant to Section 8.02 of the Indenture.
(iv) If the Lessee, pursuant to Section 10.01 of the Lease, gives
notice of a voluntary termination for obsolescence or surplus, but subject
to Section 6.02(c) of Indenture.
(v) Pursuant to Section 15.01 of the Participation Agreement in
connection with a Refinancing of the Certificates.
(vi) As contemplated by Section 2.16 of the Indenture and Section
3.05(b) of the Participation Agreement if the Delivery Date has not
occurred on or prior to the Cut-Off Date.
(vii) At the option of the Owner Trustee with the prior written
consent of the Lessee and the Owner Participant upon not less than 25 days'
prior written notice.
In the case of a prepayment of the Certificates pursuant to clauses
(ii), (iv) and (v) above, the Lessee, in accordance with and subject to the
terms (including timing of notice) of Section 4.02(a) or 10.01 of the Lease or
Article 15 of the Participation Agreement, as the case may be, shall give
irrevocable (subject to Section 6.02(c) of the Indenture) written notice to
the Owner Trustee and the Indenture Trustee and to the Holders of all of the
Certificates specifying the Business Day on which the Owner Trustee is
directed to prepay the Certificates. In the case of a prepayment pursuant to
clause (i) above, the Certificates shall be prepaid on the Loss Payment Date
(as defined in Section 11.02 of the Lease). In the case of a prepayment
pursuant to clause (iii) above, the Certificates shall be prepaid on the date
designated in the notice of prepayment required by Section 8.02 of the
Indenture. In the case of a prepayment of the Certificates pursuant to
clauses (ii) and (iv) above, the Certificates shall be prepaid in full on the
Termination Date. In the case of a prepayment of the Certificates pursuant to
clause (v) above, the Certificates shall be prepaid on the effective date of
the Refinancing. In the case of a prepayment of the Certificates pursuant to
clause (vi) above, the Certificates shall be prepaid on the 15th day following
the Cut-Off Date. In the case of a prepayment of the Certificates pursuant to
clause (vii) above, the Certificates shall be prepaid on the date designated
in the notice referred to therein. The day on which the Certificates are to
be prepaid is herein referred to as the "Prepayment Date". On or prior to the
Prepayment Date, immediately available funds shall be deposited with the
Indenture Trustee in an amount in respect of the Certificates equal to:
(1) (i) if such prepayment is made under any provision of Section
6.02 of the Indenture on or after the applicable Premium Termination Date,
or (ii) if such prepayment is made prior to the applicable Premium
Termination Date pursuant to clause (i), (iii) (if clause (i) of the first
sentence of Section 8.02(a) of the Indenture is applicable) or (vi) above,
the sum of (A) the aggregate principal amount of such Certificates then
Outstanding, (B) accrued interest on the Certificates to the Prepayment
Date and (C) all other aggregate sums due the Indenture Trustee under the
Indenture or under the Participation Agreement or the Lease, but excluding
any Make-Whole Premium or other premium or penalty, or
(2) if such prepayment is made prior to the applicable Premium
Termination Date pursuant to clause (ii), (iii) (if clause (ii) of the
first sentence of Section 8.02(a) of the Indenture is applicable), (iv),
(v) or (vii) above, the sum of the amounts specified in clauses (A), (B)
and (C) of the preceding clause (1) plus any Make-Whole Premium payable in
respect of all Certificates with respect to which the Premium Termination
Date therefor has not occurred
(the aggregate amount required to be paid pursuant to this sentence being
herein referred to as the "Prepayment Price").
If, in accordance with and subject to the satisfaction of the
conditions set forth in Section 7.11 of the Participation Agreement, the
Lessee shall assume all of the obligations of the Owner Trustee hereunder,
under the Certificates and all other Operative Agreements, the Owner
Participant and the Owner Trustee shall (except for prior acts) be released
and discharged from any further obligations hereunder and under the
Certificates and all other Operative Agreements (except any obligations that
have accrued prior to such assumption).
If an Indenture Event of Default under the Indenture shall occur and
be continuing, the principal of the Certificates may be declared due and
payable in the manner and with the effect provided in the Indenture. The
Indenture provides that in certain events such declaration and its
consequences may be waived the Majority in Interest of Holders. Any such
consent or waiver shall be conclusive and binding upon the Holder of this
Certificate and upon all future Holders and owners of this Certificate and any
Certificate that may be issued in exchange or substitution therefor,
whether or not any notation thereof is made upon this Certificate or such
other Certificates. Moreover, if, and only if, an Event of Default shall
occur, the Indenture Trustee may declare the Lease to be in default, and
may, to the exclusion of the Owner Trustee, exercise one or more of the
remedies of the Owner Trustee provided in the Lease.
The Owner Trustee or the Owner Participant may cure a default by the
Lessee under the Lease arising from the failure of the Lessee to make any
Basic Rent payments under the Lease, but the Owner Trustee and the Owner
Participant, collectively, may not cure more than three consecutive such
failures or more than six such failures in total. The Owner Trustee or the
Owner Participant may cure any other default by the Lessee in the performance
of its obligations under the Lease.
(A) If an Event of Default shall have occurred and be continuing for
more than 180 days or the Certificates shall have been accelerated or (B) an
Event of Default shall have occurred and be continuing for not more than 180
days and the Certificates shall not have been accelerated, the Owner
Participant (or the Owner Trustee on behalf of the Owner Participant) may:
(1) direct the Owner Trustee to cause the prepayment of all the
Outstanding Certificates by notifying the Indenture Trustee of such
election and depositing the sum of amounts contemplated by paragraph
"first" under Section 5.03 of the Indenture and the aggregate
Prepayment Price of all such Certificates with the Indenture Trustee
for distribution to the Holders; or
(2) purchase all of the Outstanding Certificates by paying to the
Indenture Trustee an amount equal to the aggregate unpaid principal
amount of all Outstanding Certificates, plus accrued interest on such
amount to the date of purchase and if such purchase occurs prior to
the Premium Termination Date for such Outstanding Certificate (in the
case of a purchase pursuant to clause (ii) of the first sentence of
Section 8.02(a) of the Indenture but not in the case of clause (i) of
Section 8.02(a) of the Indenture) any Make-Whole Premium applicable
to each Outstanding Certificate, plus all other sums due any Holder
or the Indenture Trustee under the Indenture, the Participation
Agreement or the Lease.
The right of the Holder hereof to institute an action for any remedy
under the Indenture is subject to certain restrictions specified in the
Indenture, except that the right of the Holder of this Certificate to receive
payment of the principal of and interest and Make-Whole Premium, if any, on
this Certificate on or after the respective due dates, or to institute suit
for the enforcement of any such payment, shall not be impaired or affected
without the consent of such Holder.
The Certificates are issuable only as registered Certificates without
coupons in denominations of $1,000 and integral multiples thereof. So long as
any of the Certificates remain Outstanding, the Indenture Trustee will
maintain an office or agency where the Certificates may be presented for
payment and a facility or agency in New York, New York where the Certificates
may be presented for registration of transfer and for exchange as provided in
the Indenture. As provided in the Indenture and subject to certain
limitations therein, this Certificate is transferable, and upon surrender of
this Certificate for registration of transfer at the principal corporate trust
office of the Indenture Trustee, or at the office or agency maintained for
such purposes, duly endorsed by, or accompanied by a written instrument of
transfer in form satisfactory to the Owner Trustee and the Indenture
Trustee duly executed by, the Holder or his attorney duly authorized in
writing, one or more new Certificates of the same Series and Maturity and
interest rate and of authorized denominations and for the same aggregate
principal amount will be issued to the designated transferee or
transferees.
As provided in the Indenture and subject to certain limitations
therein, the Certificates are exchangeable for an equal aggregate principal
amount of Certificates of the same Series and Maturity and interest rate and
of authorized denominations, as requested by the Holder surrendering the same,
upon presentation thereof for such purpose at the principal corporate trust
office of the Indenture Trustee, or at an office or agency maintained for such
purpose.
No service charge shall be levied for any such registration of
transfer or exchange, but the Indenture Trustee may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection
therewith.
Prior to the due presentment for registration of transfer of this
Certificate, the Owner Trustee, the Indenture Trustee, any agent of the Owner
Trustee or the Indenture Trustee, the Paying Agent, if any, the Registrar and
the Lessee shall deem and treat the person in whose name this Certificate is
registered as the absolute owner hereof for all purposes whether or not this
Certificate is overdue, and neither the Owner Trustee, the Indenture Trustee
(nor any agent of the Owner Trustee or the Indenture Trustee), nor the Paying
Agent, if any, the Registrar nor the Lessee shall be affected by notice to the
contrary.
The indebtedness evidenced by this Certificate is, to the extent and
in the manner provided in the Indenture, subordinate and subject in right of
payment to the prior payment in full of the Secured Obligations (as defined in
the Indenture) in respect of [Series A Certificate](1), [Series A and Series B
Certificates](2) and this Certificate is issued subject to such provisions.
The Holder of this Certificate, by accepting the same, (a) agrees to and shall
be bound by such provisions, (b) authorizes and directs the Indenture Trustee
on such Holder's behalf to take such action as may be necessary or appropriate
to effectuate the subordination as provided in the Indenture and (c) appoints
the Indenture Trustee such Holder's attorney-in-fact for such purpose.(*)
- --------------
(1) To be inserted in the case of a Series B Certificate.
(2) To be inserted in the case of a Series C Certificate.
(*) To be inserted for each Certificate other than any Series A
Certificate.
As provided in the Indenture, the Indenture and the Certificates
shall be construed in accordance with and governed by the laws of the State of
New York.
This Certificate shall not be secured by or be entitled to any
benefit under the Indenture or be valid or obligatory for any purpose unless
authenticated by the Indenture Trustee as evidenced by the manual signature of
one of its authorized officers on the certificate below.
IN WITNESS WHEREOF, the Owner Trustee has caused this Equipment Trust
Certificate (Federal Express Corporation Trust No. N670FE) to be duly executed
in its corporate name by its officer thereunto duly authorized.
Dated: May ___, 1997 STATE STREET BANK AND TRUST COMPANY OF
CONNECTICUT, NATIONAL ASSOCIATION,
not in its individual capacity,
but solely as Owner Trustee
By _____________________________________________
Name: Paul D. Allen
Title: Vice President
[FORM OF INDENTURE TRUSTEE'S CERTIFICATE OF AUTHENTICATION]
This is one of the Equipment Trust Certificates (Federal Express
Corporation Trust No. N670FE) referred to in the within mentioned Indenture.
Dated: May ___, 1997 FIRST SECURITY BANK, NATIONAL ASSOCIATION,
not in its individual capacity,
but solely as Indenture Trustee
By ____________________________________
Name: Greg A. Hawley
Title: Vice President
SCHEDULE I
[Reserved]
SCHEDULE II
DEFINITIONS
(FEDERAL EXPRESS CORPORATION TRUST NO. N670FE)
GENERAL PROVISIONS
The following terms shall have the following meanings for all
purposes of the Operative Agreements (other than the Pass Through Agreement,
the Series Supplements, the Intercreditor Agreement and the Liquidity
Facilities) referred to below, unless otherwise defined in an Operative
Agreement or the context thereof shall otherwise require. In the case of any
conflict between the provisions of this Schedule and the provisions of any
Operative Agreement, the provisions of such Operative Agreement shall control
the construction of such Operative Agreement.
Unless the context otherwise requires, (i) references to agreements
shall be deemed to mean and include such agreements as amended and
supplemented from time to time, and (ii) references to parties to agreements
shall be deemed to include the successors and permitted assigns of such
parties.
DEFINED TERMS:
Additional Insured. As defined in Article 13 of the Lease.
Aeronautics Authority. As appropriate, the Federal Aviation
Administration and/or the Administrator of the Federal Aviation
Administration, any successor to the former United States Civil Aeronautics
Board, or any Person, governmental department, bureau, commission or agency
located in the United States succeeding to the functions of any of the
foregoing.
Affidavits. The affidavits of citizenship of the Owner Trustee and
the Owner Participant.
Affiliate. With respect to any Person, any other Person directly or
indirectly controlling, controlled by or under common control with such
Person. For the purposes of this definition, "control" (including "controlled
by" and "under common control with") shall mean the power, directly or
indirectly, to direct or cause the direction of the management and policies of
such Person whether through the ownership of voting securities or by contract
or otherwise. In no event shall the Owner Trustee or the Lessor be deemed an
Affiliate of the Owner Participant.
After-Tax Basis. A basis such that any payment to be received by a
Person shall be supplemented by a further payment to such Person so that the
sum of the two payments, after deduction of all Taxes resulting from the
receipt or accrual of such payments, shall be equal to the payment to be
received. In the case of amounts payable to the Lessor, the Owner Participant,
or any corporate Affiliate of the Owner Participant, it shall be presumed that
such Person is at all times subject to Federal income tax at the maximum
marginal rate generally applicable to corporations from time to time and
actual state, local and foreign income taxes.
Air Carrier. Any U.S. Air Carrier and any "foreign air carrier" (as
defined in the Transportation Code) as to which there is in force a permit
granted under Section 41302 of the Transportation Code.
Airbus Guaranty. The Guaranty to be dated the Delivery Date executed
by the Manufacturer and guaranteeing AVSA's Warranty Bill of Sale.
Aircraft. The Airframe to be sold by AVSA to the Owner Trustee as
provided in the Participation Agreement and to be leased under the Lease (or
any permitted substitute airframe thereunder) together with two Engines
(whether either is an initial Engine or a Replacement Engine) whether or not
any of such initial or Replacement Engines may from time to time be installed
on such Airframe or may be installed on any other airframe or on any other
aircraft, including any aircraft substituted pursuant to Section 11.03 of the
Lease. Prior to delivery of the initial Lease Supplement, references in the
Operative Agreements (including Section 3.05 of the Participation Agreement)
to Aircraft shall mean the Airbus A300F4-605R airframe bearing FAA
Registration Number N670FE and Manufacturer's serial number 777, together with
two General Electric CF6-80C2-A5F engines.
Airframe. The Airbus A300F4-605R aircraft (excluding the Engines or
engines from time to time installed thereon) to be leased by the Lessor to the
Lessee pursuant to the Lease and the initial Lease Supplement and having the
United States FAA Registration Number initially and manufacturer's serial
number specified in the initial Lease Supplement, including (i) all Parts in
respect thereof and (ii) any Replacement Airframe which may be substituted
pursuant to Section 11.03 of the Lease.
Ancillary Agreement. Any written agreement of the Lessee to which the
Lessor is a party or to which the Lessor has consented in writing entered into
on or prior to the Delivery Date or any date thereafter in connection with the
transactions contemplated by the Operative Agreements, as such agreement may
be amended and supplemented from time to time with the consent of the Lessor
and delivered to the Owner Trustee, the Indenture Trustee, the Pass Through
Trustee, the Subordination Agent, each Liquidity Provider and the Owner
Participant.
Ancillary Agreement I. The Ancillary Agreement I (Federal Express
Corporation Trust No. N670FE), dated the Certificate Closing Date, among the
Lessee, the Owner Trustee, not in its individual capacity, but solely as Owner
Trustee, the Owner Participant and the Indenture Trustee not in its individual
capacity, but solely as Indenture Trustee, as originally executed or as
amended, modified or supplemented with the consent of all the parties thereto.
Ancillary Agreement II. The Ancillary Agreement II (Federal Express
Corporation Trust No. N670FE), dated the Certificate Closing Date, among the
Lessee, the Owner Trustee, not in its individual capacity, but solely as Owner
Trustee, the Owner Participant and the Indenture Trustee not in its individual
capacity, but solely as Indenture Trustee, as originally executed or as
amended, modified or supplemented with the consent of all the parties thereto.
Application. The application for registration of the Aircraft with
the FAA in the name of the Owner Trustee.
Appraisal. The report prepared by BK Associates, Inc. and to be
delivered to the Owner Participant (with an abbreviated report to the Lessee)
on the Delivery Date pursuant to Section 4.02(h) of the Participation
Agreement.
Assignment and Assumption Agreement. Any agreement delivered in
compliance with Section 7.03(d) of the Participation Agreement.
Average Life Date. For any Certificate, the date which follows the
prepayment date by a period equal to the Remaining Weighted Average Life of
such Certificate.
AVSA. AVSA S.A.R.L., a societe a responsabilite limitee, organized
and existing under the laws of France.
AVSA Consent and Agreement. The Consent and Agreement dated as of
May 1, 1997, executed by AVSA.
AVSA's FAA Bill of Sale. The bill of sale for the Airframe on AC
Form 8050-2, or such other form as may be approved by the Aeronautics
Authority, executed by AVSA in favor of the Owner Trustee and to be dated the
Delivery Date.
AVSA's Warranty Bill of Sale. The full warranty bill of sale
covering the Aircraft (and specifically referring to each Engine) executed by
AVSA as owner of the Aircraft in favor of the Owner Trustee and to be dated
the Delivery Date.
Bankruptcy Code. The Federal Bankruptcy Code of 1978, as amended, and
any successor thereto.
Bankruptcy Default. An event specified in Section 16.01(e), (f) or
(g) of the Lease which either does or, with the giving of notice or lapse of
time or both, would constitute an Event of Default.
Basic Rent. The aggregate periodic rent payable for the Aircraft
throughout the Basic Term pursuant to Section 3.02 of the Lease, adjusted
pursuant to Article 3 of the Lease.
Basic Term. The period commencing at the beginning of the day on the
Delivery Date and ending at the end of the day on September 2, 2020, or such
earlier date on which the Lease shall be terminated as provided therein.
Beneficial Interest. The interest of the Owner Participant under the
Trust Agreement.
Business Day. Any day on which commercial banks are not authorized or
required to close in New York, New York, Memphis, Tennessee and the city in the
United States in which the office or agency is maintained by the Pass Through
Trustee for the payment of the Pass Through Certificates, and after the Lien
of the Indenture is discharged, Boston, Massachusetts.
Certificate Closing Date. The date of the closing with respect to the
purchase of Certificates by the Pass Through Trustee contemplated by Section
2.01(b) of the Participation Agreement.
Certificates. The Equipment Trust Certificates (Federal Express
Corporation Trust No. N670FE), issued by the Owner Trustee pursuant to the
Indenture and any certificate issued in exchange therefor or replacement
thereof pursuant to the Indenture.
Change in Tax Law. Any change to the Code or the Treasury regulations
promulgated thereunder or the publication of any revenue ruling, revenue
procedure or any informational release by the Internal Revenue Service or the
Department of Treasury either of which would change or would allow a change in
the tax assumptions or structure upon which the lease economics were based,
provided that the Owner Participant or the Lessee has notified the other party
of such change in writing prior to the Delivery Date.
Change in Tax Rate. Any amendment, modification, deletion, addition,
or change to the Code which is enacted into law after the Delivery Date which
changes the highest marginal statutory rate of Federal income tax applicable
to the Owner Participant (other than a change which is in the nature of a
minimum tax).
Citizen of the United States. A citizen of the United States as
defined in Section 40102(a)(15) of the Transportation Code, or any analogous
part of any successor or substituted legislation or regulation at the time in
effect.
Class A Liquidity Provider. Has the meaning specified in Section
1.01 of the Intercreditor Agreement.
Class B Liquidity Provider. Has the meaning specified in Section
1.01 of the Intercreditor Agreement.
Closings. The closing with respect to the acquisition of the Pass
Through Certificates by the Underwriters and the closing with respect to the
acquisition of Certificates by the Pass Through Trustee.
Code. Except as otherwise provided, the Internal Revenue Code of
1986, as amended from time to time.
Collateral Account. The deposit account established and maintained
pursuant to Section 2.13 of the Indenture.
Collateral Account Control Agreement. The Collateral Account Control
Agreement dated as of May 1, 1997 among State Street Bank and Trust Company,
the Indenture Trustee and the Owner Trustee.
Commitment. The amount of the Owner Participant's participation in
the Purchase Price required to be made available or paid as provided in
Section 3.02 of the Participation Agreement.
Consent and Agreement. The Consent and Agreement dated as of May 1,
1997 executed by the Manufacturer.
Consent and Guaranty. The Consent and Guaranty of the Manufacturer
attached to the Purchase Agreement.
Corporate Trust Administration. The Corporate Trust Administration
office of the Owner Trustee located at 750 Main Street, Hartford, Connecticut
06103, Attention: Corporation Trust Administration, or such other office at
which the Owner Trustee's corporate trust business shall be administered which
the Owner Trustee shall have specified by notice in writing to the Lessee, the
Owner Participant and the Indenture Trustee.
Corporate Trust Department. The Corporate Trust Department office of
the Indenture Trustee located at 79 South Main Street, Salt Lake City, Utah
84111, Attention: Corporate Trust Department, or such other office at which
the Indenture Trustee's corporate trust business shall be administered which
the Indenture Trustee shall have specified by notice in writing to the Lessee,
the Owner Participant and the Owner Trustee.
CRAF Program. Has the meaning specified in Section 7.01(f) of the
Lease.
Cut-Off Date. September 1, 1997.
Debt Portion. The amount specified as such on Schedule IV to the
Participation Agreement.
Debt Rate. The weighted average (based on Outstanding principal
amount) rate of interest on the Certificates issued pursuant to the Indenture.
Default. Any event or condition which, with the lapse of time or the
giving of notice, or both, would constitute an Event of Default.
Delivery Date. The date on which the Aircraft is delivered and sold
by AVSA to the Lessor and leased by the Lessor to the Lessee under the Lease,
which date shall also be the date of the initial Lease Supplement.
Delivery Notice. Notice of the Aircraft's Delivery Date, given by
the Lessee as provided in Section 3.01 of the Participation Agreement and
including any notice with respect to a postponed Delivery Date given by the
Lessee pursuant to Section 3.05(c) of the Participation Agreement.
Eligible Deposit Account. Either (a) a segregated account with an
Eligible Institution or (b) a segregated trust account with the corporate
trust department of a depository institution with corporate trust powers
organized under the laws of the United States or any state thereof, or the
District of Columbia, and whose deposits are insured by the Federal Deposit
Insurance Corporation, provided that such institution also has a combined
capital and surplus of at least $100,000,000 and a rating of A or better from
the Thomson Bank Watch.
Eligible Institution. A depository institution organized under the
laws of the United States or any one of the states thereof, or the District of
Columbia, or any domestic branch of a foreign bank, which in any such case at
all times (a) has either (x) a long-term unsecured debt rating of at least Aa2
by Moody's or (y) a short-term certificate of deposit rating of P-1 by
Moody's, (b) has either (x) a long-term unsecured debt rating of a least AA by
S&P or (y) a short-term certificate of deposit rating of A-1+ by S&P and (c)
is a member of the Federal Deposit Insurance Corporation.
Engine. Each of the two General Electric CF6-80C2-A5F engines listed
by its manufacturer's serial number in the initial Lease Supplement and leased
pursuant to the Lease, whether or not from time to time installed on the
Airframe or installed on any other airframe or on any other aircraft, and any
Replacement Engine which may from time to time be substituted for an Engine
pursuant to Section 7.02(a)(vii), 10.02(c), 10.03, 11.03, 11.04 or 12.02 of
the Lease, together with all Parts related thereto. Except as otherwise
provided, at such time as a Replacement Engine shall be so substituted and the
Engine for which the substitution is made shall be released from the Lien of
the Indenture, such replaced Engine shall cease to be an "Engine" under the
Lease. The term "Engines" means, as of any date of determination, both Engines
then leased to the Lessee pursuant to the Lease.
Engine Consent. The Engine Consent dated as of May 1, 1997, executed
by the Engine Manufacturer.
Engine Manufacturer. General Electric Company, a New York
corporation.
Engine Warranty Assignment. The Engine Warranty Assignment (Federal
Express Corporation Trust No. N670FE), dated as of May 1, 1997 between the
Lessor and the Lessee.
ERISA. The Employee Retirement Income Security Act of 1974, as
amended.
ERISA Plan. As defined in Section 8.01(b)(xii) of the Participation
Agreement.
Estimated Expense Amount. Has the meaning specified in Section
10.01(a) of the Participation Agreement.
Event of Default. Each of the events specified in Article 16 of the
Lease.
Event of Loss. Any of the following events with respect to the
Aircraft, the Airframe or any Engine: (i) loss of such property or its use (A)
for a period in excess of 60 days due to theft or disappearance or such longer
period, not to exceed 180 days from the end of such initial 60-day period, if
and so long as the location of such property is known to the Lessee and the
Lessee is diligently pursuing recovery of such property, or to the end of the
Term, if less (unless such theft or disappearance constitutes an Event of Loss
pursuant to (i)(B) or (ii) hereof) or (B) for a period in excess of 60 days
due to the destruction, damage beyond economic repair or rendition of such
property permanently unfit for normal use by Lessee for any reason whatsoever;
(ii) any damage to such property which results in an insurance settlement with
respect to such property on the basis of a total loss, or constructive or
compromised total loss; (iii) (1) condemnation, confiscation or seizure of, or
requisition of title to such property by the Government, any foreign
government or purported government or any agency or instrumentality thereof,
or (2) condemnation, confiscation, or seizure of, or requisition or taking of,
use of such property (A) by a foreign government or instrumentality or agency
of any such foreign government, for a period in excess of 180 days (or such
shorter period ending on the earlier of the expiration of the Term or on the
date on which an insurance settlement with respect to such property on the
basis of a total loss or constructive or compromised total loss shall occur)
or (B) by the Government for a period extending beyond the Term; and (iv) as a
result of any law, rule, regulation, order or other action by the Aeronautics
Authority or other governmental body having jurisdiction, the use of the
Aircraft or Airframe in the normal course of air transportation of cargo shall
have been prohibited by virtue of a condition affecting all Airbus A300-600
series aircraft equipped with engines of the same make and model as the
Engines for a period of twelve (12) consecutive months, unless the Lessee,
prior to the expiration of such twelve (12) month period, shall be diligently
carrying forward all steps which are necessary or desirable to permit the
normal use of the Aircraft or Airframe or, in any event, if such use of the
Aircraft or the Airframe shall have been prohibited for a period of
twenty-four (24) consecutive months or until the end of the Term, if earlier.
The date of such Event of Loss shall be (s) the 61st day or the 241st day, as
the case may be, following loss of such property or its use due to theft or
disappearance (or the end of the Term or the Lessee's abandonment of diligent
efforts to recover such property, if earlier); (t) the 61st day following the
date of any destruction, damage beyond economic repair or rendition of such
property permanently unfit for normal use; (u) the date of any insurance
settlement on the basis of a total loss or constructive or compromised total
loss; (v) the date of any condemnation, confiscation, seizure or requisition
of title of such property; (w) the 181st day following condemnation,
confiscation, seizure or requisition for use of such property by a foreign
government referred to in clause (iii)(2)(A) above (or the end of the Term or
the date of any insurance settlement described therein, if earlier than such
181st day); (x) the last day of the Term in the case of requisition for use of
such property by the Government; (y) the last day of the 12 month or 24 month
period, referred to in clause (iv) above (or if earlier, the end of the Term
or abandonment of the Lessee's efforts to restore the normal use of the
Aircraft). An Event of Loss with respect to the Aircraft shall be deemed to
have occurred if any Event of Loss occurs with respect to the Airframe.
Excepted Payments. Collectively, (i) indemnity, expense,
reimbursement or other payments paid or payable by the Lessee in respect of
the Owner Participant, the Owner Trustee in its individual capacity or any of
their respective successors, permitted assigns, directors, officers,
employees, servants and agents or Affiliates, pursuant to the Participation
Agreement or any other Operative Agreement or any indemnity hereafter granted
to the Owner Participant or the Owner Trustee in its individual capacity
pursuant to the Lease or the Participation Agreement, (ii) proceeds of public
liability insurance (or government indemnities in lieu thereof) in respect of
the Aircraft payable as a result of insurance claims paid for the benefit of,
or losses suffered by, the Owner Trustee or the Indenture Trustee in their
respective individual capacities or by the Owner Participant, or their
respective successors, permitted assigns or Affiliates, (iii) proceeds of
insurance maintained with respect to the Aircraft by the Owner Participant
(whether directly or through the Owner Trustee) maintained in accordance with
Section 13.05 of the Lease but not required under Article 13 of the Lease,
(iv) payments of Supplemental Rent by the Lessee in respect of any amounts
payable under the Tax Indemnity Agreement, (v) any purchase price paid to the
Owner Participant for its interest in the Trust Estate pursuant to Section
7.03(d) of the Participation Agreement, (vi) subject to Section 3.05 of the
Lease, payments constituting increases in Basic Rent attributable to payments
arising pursuant to Section 5 of the Tax Indemnity Agreement, (vii) any
payments in respect of interest to the extent attributable to payments
referred to in clauses (i) through (vi) above and (viii) any right to demand,
collect or otherwise receive and enforce the payment of any amount described
in clauses (i) through (v) and (vii) above (except with respect to interest
attributable to payments referred to in clause (vi) above).
Expense; Expenses. Have the meaning specified in Section 9.01(a) of
the Participation Agreement.
Fair Market Renewal Term. A term with respect to which the Lessee has
exercised its option to renew the Lease pursuant to the second paragraph of
Section 4.01(a) thereof and with respect to which the conditions set forth in
such Section 4.01(a) are met.
Fair Market Rental. An amount determined on the basis of, and equal
in amount to, the rental which would be obtained in an arm's-length
transaction between an informed and willing lessee and an informed and willing
lessor unaffiliated with such lessee, neither being under any compulsion to
lease. In such determination, it shall be assumed that the Aircraft is in the
condition required under the Lease in the case of return of the Aircraft
pursuant to Article 12 of the Lease and Fair Market Rental shall be determined
in accordance with the provisions of Section 4.03 of the Lease.
Fair Market Value. An amount determined on the basis of, and equal in
amount to, the value which would be obtained in an arm's-length transaction
between an informed and willing purchaser under no compulsion to buy and an
informed and willing seller unaffiliated with such purchaser and under no
compulsion to sell, assuming the Aircraft (or other property) is unencumbered
by the Lease. In such determination, except for purposes of Section 17.01 of
the Lease (when it shall be determined based upon the actual condition and
location of the Aircraft), it shall be assumed that the Aircraft is in the
condition required under the Lease in the case of return of the Aircraft
pursuant to Article 12 of the Lease and Fair Market Value shall be determined
in accordance with the provisions of Section 4.03 of the Lease.
Federal Aviation Administration; FAA. The United States Federal
Aviation Administration and any successor agency or agencies thereto.
Final Drawing. Has the meaning specified in Section 1.01 of the
Intercreditor Agreement.
Fixed Renewal Rent. Semi-annual payments of rent during the Fixed
Renewal Term equal to the lesser of (i) Fair Market Rental as determined as of
the commencement of such Fixed Renewal Term and (ii) 50% of the average actual
semi-annual Basic Rent payable during the Basic Term.
Fixed Renewal Term. The term with respect to which the Lessee has
exercised its option to renew the Lease pursuant to the first paragraph of
Section 4.01(a) thereof and with respect to which the conditions set forth in
such Section 4.01(a) are met.
FPO Price. Has the meaning set forth in Section 4.02(a)(F) of the
Lease.
French Pledge Agreement. The French Pledge Agreement dated as of May
1, 1997 between the Owner Trustee and the Indenture Trustee.
FSB. First Security Bank, National Association, a national banking
association.
Government. The United States of America or an agency or
instrumentality thereof the obligations of which bear the full faith and
credit of the United States of America.
GTA. The General Terms Agreement dated as of July 3, 1991 between the
Engine Manufacturer and the Lessee related to the purchase by the Lessee of the
Engines as originally executed or as modified, amended or supplemented in
accordance with the terms thereof, but only insofar as the General Terms
Agreement relates to the Engines, to the extent assigned to the Owner Trustee
pursuant to the Engine Warranty Assignment.
Holder of a Certificate; Certificate Holder; Holder. As of any
particular time, the Person in whose name a Certificate shall be registered
(but not including the holder of any Pass Through Certificate).
Indemnitee. Each of SSB, in its individual capacity and as Owner
Trustee and Lessor, the Subordination Agent, in its individual capacity and in
its capacity as Subordination Agent, each Liquidity Provider, the Owner
Participant, the Indenture Trustee, in its individual capacity and as trustee,
the Owner Participant Guarantor and any successor (including any trustee which
may succeed to the Lessor's interest under the Lease), Affiliate, assign,
officer, director, employee, agent and servant of any of the foregoing, the
Lessor's Estate and the Trust Indenture Estate. Neither the Pass Through
Trustee nor any holder of a Pass Through Certificate shall be deemed to be an
Indemnitee.
Indenture. The Trust Indenture and Security Agreement (Federal
Express Corporation Trust No. N670FE), dated as of May 1, 1997, between the
Lessor and the Indenture Trustee, as supplemented by the Indenture and
Security Agreement Supplement.
Indenture and Security Agreement Supplement. The Indenture and
Security Agreement Supplement No. 1 (Federal Express Corporation Trust No.
N670FE) to be dated the Delivery Date, substantially in the form of Exhibit A
to the Indenture.
Indenture Default. Any event or condition which, with the lapse of
time or the giving of notice, or both, would constitute an Indenture Event of
Default.
Indenture Documents. Has the meaning specified in the Granting
Clause of the Indenture.
Indenture Event of Default. Each of the events specified in Section
7.01 of the Indenture.
Indenture Trustee. First Security Bank, National Association, a
national banking association, not in its individual capacity but solely as
Indenture Trustee under the Indenture.
Indenture Trustee's Liens. Any Lien against, on or with respect to
the Aircraft, the Lessor's Estate or the Trust Indenture Estate or any part
thereof resulting from (i) claims against the Indenture Trustee not related to
the administration of the Trust Indenture Estate or any transactions pursuant
to the Indenture or any document included in the Trust Indenture Estate, (ii)
any act or omission of the Indenture Trustee which is not related to the
transactions contemplated by the Operative Agreements or is in violation of
any of the terms of the Operative Agreements or (iii) Taxes imposed against
the Indenture Trustee in its individual capacity in respect of which the Lessee
has not indemnified (and is not obligated to indemnify) the Indenture Trustee
in such capacity.
Independent Appraisal. An appraisal conducted pursuant to Section
4.03 of the Lease.
Independent Investment Banker. An independent investment banking
institution of national standing appointed by the Lessee that is independent
in fact, does not have any direct financial interests, or any material
indirect financial interest, in the Lessee or any Affiliate of the Lessee, and
is not connected with the Lessee or any Affiliate of the Lessee, as an
officer, employee, promoter, underwriter, trustee, partner, director or Person
performing similar functions; provided, that if the Indenture Trustee shall
not have received written notice of such an appointment at least 10 days prior
to the Prepayment Date, "Independent Investment Banker" shall mean such an
institution appointed by the Indenture Trustee.
Intercreditor Agreement. The Intercreditor Agreement dated as of May
1, 1997, among the Pass Through Trustee, the Class A Liquidity Provider, the
Class B Liquidity Provider and the Subordination Agent.
Interest Drawing. Has the meaning specified in Section 1.01 of the
Intercreditor Agreement.
Invoice. The invoice for the Aircraft given by AVSA to the Lessor.
Lease. The Lease Agreement (Federal Express Corporation Trust No.
N670FE) dated as of May 1, 1997, entered into by the Lessor and the Lessee
concurrently with the execution and delivery of the Indenture, including,
without limitation, supplementation by one or more Lease Supplements entered
into pursuant to the applicable provisions of the Lease.
Lease Supplement. The Lease Supplement No. 1 (Federal Express
Corporation Trust No. N670FE) to be dated the Delivery Date, substantially in
the form of Exhibit A to the Lease.
Lease Term. The period commencing on the Delivery Date and ending at
the end of the Basic Term.
Lessee. Federal Express Corporation, a Delaware corporation.
Lessee Documents. Has the meaning set forth in Section 6.01(b) of the
Participation Agreement.
Lessor. State Street Bank and Trust Company of Connecticut, National
Association, a national banking association, not in its individual capacity
but solely as Owner Trustee under the Trust Agreement.
Lessor's Estate. All estate, right, title and interest of the Owner
Trustee in and to the Collateral Account, the Liquid Collateral, the Aircraft,
the Lease, any Lease Supplement, the Participation Agreement, AVSA's FAA Bill
of Sale, AVSA's Warranty Bill of Sale, the Airbus Guaranty, the Purchase
Agreement, the Purchase Agreement Assignment, the Consent and Agreement, the
AVSA Consent and Agreement, the Consent and Guaranty (to the extent assigned
by the Purchase Agreement Assignment), any Ancillary Agreement, the GTA, the
Engine Warranty Assignment, the Engine Consent, any warranty with respect to
the Airframe and the Engines, all amounts of Basic Rent and Supplemental Rent,
including without limitation, insurance proceeds (other than insurance
proceeds payable to or for the benefit of the Owner Trustee in its individual
capacity or the Owner Participant) and requisition, indemnity or other
payments of any kind for or with respect to the Aircraft (except amounts owing
to the Owner Participant, to the Indenture Trustee, to the Owner Trustee in its
individual capacity, or to any of their respective directors, officers,
employees and agents pursuant to Articles 8 and 9 of the Participation
Agreement), and all other property of the Owner Trustee purportedly subjected
to the Lien of the Indenture by the Granting Clause thereof; provided that in
no event shall "Lessor's Estate" include any Excepted Payment.
Lessor's Liens. Liens against, on or with respect to the Aircraft,
the Lessor's Estate or the Trust Indenture Estate or any part thereof, title
thereto or any interest therein arising as a result of (i) claims against the
Lessor, in its individual capacity or as Owner Trustee, or the Owner
Participant, in each case not related to the transactions contemplated by the
Operative Agreements, (ii) acts or omissions of the Lessor in its individual
capacity or as Owner Trustee, and, in the case of the Lessor in its individual
capacity, arising from its gross negligence or willful misconduct or expressly
prohibited under the Operative Agreements and any act or omission of the Owner
Participant which is in violation of any of the terms of the Operative
Agreements, (iii) Taxes or Expenses imposed against the Lessor, in its
individual capacity or as Owner Trustee, Owner Participant, Lessor's Estate or
the trust created by the Trust Agreement which are not required to be
indemnified against by the Lessee pursuant to the Participation Agreement by
reason of Section 8.01(b) or 9.01(b) thereof and which are not required to be
indemnified against by the Lessee pursuant to the Tax Indemnity Agreement, or
(iv) claims against the Lessor or the Owner Participant arising from the
voluntary transfer by the Lessor or the Owner Participant of its interests in
the Aircraft other than a transfer of the Aircraft pursuant to Section 4.02(a)
or Article 10 or 11 of the Lease and other than a transfer pursuant to the
exercise of the remedies set forth in Article 17 of the Lease.
Lien. Any mortgage, pledge, lien, charge, encumbrance, lease or
security interest or other similar interest.
Liquid Collateral. All amounts and securities deposited from time to
time in the Collateral Account and all the products, investments, earnings and
proceeds of the foregoing, including, but not limited to, all proceeds of the
investment or conversion thereof, voluntary or involuntary, into cash,
Specified Investments or other property, all rights to payment of any and
every kind, and other forms of obligations, and instruments and other property
which at any time constitute all or part or are included in the proceeds of
any of the foregoing.
Liquidity Facility. Has the meaning specified in Section 1.01 of the
Intercreditor Agreement.
Liquidity Provider. Has the meaning specified in Section 1.01 of the
Intercreditor Agreement.
Losses. Has the meaning specified in Section 17.02(a) of the
Participation Agreement.
Loss Payee. Has the meaning specified in Section 13.02(b)(i) of the
Lease.
Majority in Interest of Certificate Holders. As of a particular date
of determination, the Holders of more than 50% of the aggregate unpaid
principal amount of all Certificates outstanding as of such date excluding for
purposes of this definition any Certificates held by (i) the Owner Trustee or
the Owner Participant or any interests of the Owner Participant unless all
Certificates then outstanding shall be held by the Owner Participant, (ii) the
Lessee or (iii) any Affiliate of any thereof.
Make-Whole Premium. An amount determined as of the day before the
applicable Prepayment Date (or date of purchase, as the case may be) which an
Independent Investment Banker determines to be equal to the excess, if any, of
(i) the present value of the remaining scheduled payments of such principal
amount or portion thereof and interest thereon (excluding interest accrued
from the immediately preceding Payment Date to such Prepayment Date or date of
purchase, as the case may be) to the Maturity of such Certificate in
accordance with generally accepted financial practices assuming a 360-day year
consisting of twelve 30-day months at a discount rate equal to the Treasury
Yield, all as determined by the Independent Investment Banker over (ii) the
outstanding principal amount of such Certificate plus accrued interest.
Manufacturer. Airbus Industrie G.I.E., a groupement d'interet
economique formed under the laws of France.
Maturity. With respect to any Certificate, the date on which the
final principal amount of such Certificate is scheduled to be due and payable.
Moody's. Moody's Investors Service, Inc.
Net Present Value of Rents. The net present value, as of the
Delivery Date, of Basic Rent set forth in Schedule II of the Lease, discounted
at a rate equal to the Debt Rate per annum compounded semi-annually.
Non-U.S. Person. Any Person other than a U.S. Person.
Obsolete Parts. Parts which are severable from the Aircraft in
accordance with clauses (ii) and (iii) of the proviso to Section 9.02(b) of
the Lease and the Lessee in good faith determines to be obsolete or no longer
suitable or appropriate for use on the Airframe or any Engine.
Officer's Certificate. When delivered pursuant to the Indenture, a
certificate signed by a Responsible Officer of the Lessee or the Owner
Trustee, as the case may be, and delivered to the Indenture Trustee. Each
such certificate shall include the statements provided for in Section 15.07 of
the Indenture.
Operative Agreements. The Participation Agreement, the Trust
Agreement, AVSA's FAA Bill of Sale, AVSA's Warranty Bill of Sale, the Airbus
Guaranty, the Purchase Agreement, the Purchase Agreement Assignment, the GTA,
the Engine Warranty Assignment, the French Pledge Agreement, the Lease, the
Lease Supplement, the Owner Participant Guaranty, the Owner Trustee Guaranty,
if any, any Ancillary Agreement entered into by or with the written consent of
the Indenture Trustee, which by its terms is an Operative Agreement, the
Certificates outstanding at the time of reference, the Indenture, the
Indenture and Security Agreement Supplement, the Consent and Agreement, the
AVSA Consent and Agreement, the Consent and Guaranty (to the extent assigned
by the Purchase Agreement Assignment), the Engine Consent, the Tax Indemnity
Agreement, each Liquidity Facility, the Intercreditor Agreement, the
Collateral Account Control Agreement and any Assignment and Assumption
Agreement.
Opinion of Counsel. When delivered pursuant to the Indenture, a
written opinion of legal counsel, who in the case of counsel (a) for the
Lessee may be (i) an attorney employed by the Lessee who is generally
empowered to deliver such written opinions, (ii) Davis Polk & Wardwell or a
successor firm or (iii) other counsel designated by the Lessee and reasonably
satisfactory to the Indenture Trustee and (b) for the Owner Trustee or the
Indenture Trustee, an attorney selected by such Person and, in the case of the
Owner Trustee, reasonably satisfactory to the Indenture Trustee.
Outstanding. When used with respect to Certificates, as of the date
of determination and subject to the provisions of Section 10.04 of the
Indenture, all Certificates theretofore executed and delivered under the
Indenture, with the exception of the following:
(i) Certificates theretofore cancelled by the Indenture Trustee or
delivered to the Indenture Trustee for cancellation pursuant to
Section 2.08 of the Indenture or otherwise;
(ii) Certificates for which prepayment money in the necessary amount
has been theretofore deposited with the Indenture Trustee in trust
for the Holders of such Certificates pursuant to Section 14.01 of the
Indenture; provided, that if such Certificates are to be prepaid,
notice of such prepayment has been duly given pursuant to the
Indenture or provision therefor satisfactory to the Indenture Trustee
has been made; and
(iii) Certificates in exchange for or in lieu of which other
Certificates have been executed and delivered pursuant to Article II
of the Indenture.
Owner Participant. The trustor originally named in the Trust
Agreement and any successor thereto, and any Person to which the Owner
Participant transfers, in accordance with the Trust Agreement, its right,
title and interest in and to the Operative Agreements and the Lessor's Estate.
Owner Participant Guarantor. Philip Morris Capital Corporation, a
Delaware corporation, and any other provider of an Owner Participant Guaranty.
Owner Participant Guaranty. The Owner Participant Guaranty dated the
Certificate Closing Date by the Owner Participant Guarantor in favor of the
Lessee, the Owner Trustee, the Indenture Trustee and the Pass Through Trustee,
and any guaranty delivered in compliance with Section 7.03(d) of the
Participation Agreement.
Owner Trustee. SSB, not in its individual capacity except as
otherwise expressly stated, but solely as Owner Trustee under the Trust
Agreement.
Owner Trustee Guarantor. The provider of an Owner Trustee Guaranty.
Owner Trustee Guaranty. Any guaranty delivered in compliance with
Section 11.01(b)(ii) of the Participation Agreement.
Owner's Economic Return. The Owner Participant's anticipated net
after-tax book yield and aggregate after-tax cash during the Basic Term
utilizing the multiple investment sinking fund method of analysis, computed on
the basis of the same methodology and assumptions as were utilized by the
Owner Participant in determining Basic Rent, Stipulated Loss Value and
Termination Value percentages, as the case may be, as such assumptions may be
adjusted for events which have been the basis of adjustments to Rent pursuant
to Section 3.04 of the Lease.
Participation Agreement. The Participation Agreement (Federal Express
Corporation Trust No. N670FE), dated as of May 1, 1997, among the Lessee, the
Owner Trustee not in its individual capacity except as otherwise expressly
provided therein, but solely as owner trustee, the Owner Participant, the
Indenture Trustee not in its individual capacity except as otherwise expressly
provided therein, but solely as indenture trustee, the Pass Through Trustee
not in its individual capacity except as otherwise expressly provided therein,
but solely as pass through trustee and the Subordination Agent not in its
individual capacity except as otherwise expressly provided therein, but solely
as subordination agent.
Parts. All appliances, parts, components, instruments, appurtenances,
accessories, furnishings and other equipment of whatever nature (other than
complete Engines or engines) which may from time to time be incorporated or
installed in or attached to the Airframe or any Engine or title to which
remains vested in the Lessor pursuant to Article 8 of the Lease.
Pass Through Agreement. The Pass Through Trust Agreement dated as of
May 1, 1997 between the Lessee and the Pass Through Trustee.
Pass Through Certificates. Any of the Pass Through Certificates,
1997-1-A, the Pass Through Certificates, 1997-1-B or the Pass Through
Certificates, 1997-1-C, in each case as issued by the related Pass Through
Trust; and "Pass Through Certificates" means all of the Pass Through
Certificates issued by each of the Pass Through Trusts.
Pass Through Closing Date. The Business Day on which the sale of the
Pass Through Certificates to the Underwriters pursuant to the Underwriting
Agreement takes place.
Pass Through Trust. The Federal Express Corporation 1997-1 Pass
Through Trust Class A, Federal Express Corporation 1997-1 Pass Through Trust
Class B and Federal Express Corporation 1997-1 Pass Through Trust Class C, in
each case formed pursuant to the related Series Supplement in accordance with
the Pass Through Agreement; and "Pass Through Trusts" means all of such Pass
Through Trusts.
Pass Through Trustee. First Security Bank, National Association, a
national banking association, in its capacity as Pass Through Trustee under
the Pass Through Agreement and each Pass Through Trust.
Past Due Rate. In respect of (A) any amount payable to the Owner
Participant or the Owner Trustee a rate per annum during the period from and
including the due date to but excluding the date on which such amount is paid
in full equal to 2% plus the Debt Rate and (B) any principal of or interest on
any Certificate or any other amount payable under the Indenture, any
Certificate or any other Operative Agreement that is not paid when due
(whether at Maturity, by acceleration, by optional or mandatory prepayment or
otherwise) to any Holder, the Indenture Trustee or the Pass Through Trustee, a
rate per annum during the period from and including the due date to but
excluding the date on which such amount is paid in full equal to (i) in the
case of any such amount payable to the Holder of any Certificate, 2% plus the
interest rate applicable to such Certificate and (ii) in the case of any other
such amount, 2% plus the Debt Rate.
Payment Date. Each January 15 and July 15 commencing on July 15,
1997.
Payment Default. Any event specified in Section 16.01(a) or 16.01(b)
of the Lease which with the giving of notice or lapse of time or both would
constitute an Event of Default.
Permitted Investments. Those investments enumerated in Section
23.01(a) (i), (ii), (iii) and (iv) of the Lease.
Person. Any individual, sole proprietorship, partnership, joint
venture, joint stock company, trust, unincorporated organization, association,
corporation, institution, entity or government (federal, state, local,
foreign or any agency, instrumentality, division or body thereof).
Preliminary Notice. Has the meaning specified in Section 4.01(a) of
the Lease.
Premium Termination Date. With respect to the Series A Certificates,
December 27, 2011, with respect to the Series B Certificates, February 5, 2010
and with respect to the Series C Certificates, March 22, 2007.
Prepayment Date. Has the meaning specified in Section 6.02(b) of the
Indenture.
Prepayment Price. Has the meaning specified in Section 6.02(b) of the
Indenture.
Principal Amount. With respect to a Certificate means the stated
original principal amount of such Certificate and, with respect to all
Certificates, means the aggregate stated original principal amounts of all
Certificates.
Property. Any right or interest in or to property of any kind
whatsoever, whether real, personal or mixed and whether tangible or intangible.
Proposed Termination Date. The proposed date of termination of the
Lease as specified by the Lessee in its notice given pursuant to Section 10.01
thereof.
Purchase Agreement. The Airbus A300-600R Freighter Purchase Agreement,
dated as of July 3, 1991 between AVSA and the Lessee, including all exhibits,
appendices and letter agreements attached thereto as originally executed or as
modified, amended or supplemented in accordance with the terms thereof, but
only to the extent that the foregoing relates to the Aircraft and to the
extent assigned pursuant to the Purchase Agreement Assignment.
Purchase Agreement Assignment. The Purchase Agreement Assignment
(Federal Express Corporation Trust No. N670FE), dated as of May 1, 1997 between
the Lessor and the Lessee.
Purchase Price. Has the meaning specified in Ancillary Agreement II.
Record Date. With respect to Payment Dates under the Indenture
(except a date for payment of defaulted interest), December 31 for January 15
Payment Dates and June 30 for July 15 Payment Dates, whether or not such date
is a Business Day.
Recourse Amount. Has the meaning specified in Section 17.10 of the
Participation Agreement.
Refinancing. A non-recourse loan to the Lessor arranged pursuant to
Section 15.01 of the Participation Agreement.
Register. Has the meaning set forth in Section 3.02 of the Indenture.
Registrar. Has the meaning set forth in Section 3.02 of the
Indenture.
Regulation D. Regulation D of the Board of Governors of the Federal
Reserve System (or any successor), as the same may be modified and
supplemented and in effect from time to time.
Related Indentures. Collectively, the Trust Indenture and Security
Agreement for each of Federal Express Corporation Trust Nos. N671FE, N672FE,
N673FE, N674FE, N583FE and N584FE, each dated as of May 1, 1997, between the
Owner Trustee and the Indenture Trustee, the Trust Indenture and Security
Agreement for Federal Express Corporation Trust No. N581FE, dated as of May 1,
1997, between Wilmington Trust Company, as owner trustee and the Indenture
Trustee, and the Trust Indenture and Security Agreement for Federal Express
Corporation Trust No. N587FE, dated as of December 1, 1996, as amended and
restated as of May 1, 1997, between Wilmington Trust Company, as owner trustee
and the Indenture Trustee.
Remaining Weighted Average Life. On a given date with respect to any
Certificate the number of days equal to the quotient obtained by dividing (i)
the sum of each of the products obtained by multiplying (a) the amount of each
then remaining scheduled payment of principal of such Certificate by (b) the
number of days from and including such prepayment date to but excluding the
dates on which each such payment of principal is scheduled to be made; by (ii)
the then outstanding principal amount of such Certificate.
Renewal Rent. The amount payable by the Lessee as rent in accordance
with Section 4.01 of the Lease during any Renewal Term.
Renewal Term. One or more terms with respect to which the Lessee has
exercised its option to renew the Lease pursuant to Section 4.01(a) thereof.
Rent. All payments due from the Lessee under the Lease as Basic Rent,
Renewal Rent and Supplemental Rent, collectively.
Rent Payment Date. September 2, 2020 and each January 15 and July 15
commencing on July 15, 1997.
Reoptimization Date. Has the meaning specified in Section 15.02(a)
of the Participation Agreement.
Replacement Aircraft. Any aircraft substituted for the Aircraft
pursuant to Section 11.03(a) of the Lease.
Replacement Airframe. Has the meaning set forth in Section 11.03 of
the Lease.
Replacement Engine. A General Electric CF6-80C2-A5F engine (or an
engine of the same or another manufacturer) of equal or greater value,
airworthiness, remaining useful life and utility as the Engine being replaced,
together with all Parts relating to such engine; provided, however, that if
such replacement engine is not a General Electric CF6-80C2-A5F engine, such
replacement engine must then be commonly used in the commercial aviation
industry on Airbus A300-600 airframes.
Responsible Officer. With respect to the Owner Trustee (except for
purposes of the Trust Agreement in which case the definition of Responsible
Officer set forth in Section 3.10 of the Trust Agreement is applicable) or the
Indenture Trustee, any officer in its Corporate Trust Administration, as the
case may be, designated by such Person to perform obligations under the
Operative Agreements, and with respect to any other party, any corporate
officer or (except in the case of the Owner Participant) other employee of a
party who, in the normal performance of his or her operational
responsibilities, with respect to the subject matter of any covenant,
agreement or obligation of such party pursuant to any Operative Agreement,
would have responsibility for and knowledge of such matter and the
requirements of any Operative Agreement with respect thereto.
S&P. Standard & Poor's Ratings Group.
Scheduled Delivery Date. The Delivery Date specified in the Delivery
Notice pursuant to Section 3.01 of the Participation Agreement.
SEC. The Securities and Exchange Commission of the United States and
any successor agencies or authorities.
Secured Obligations. Has the meaning specified in the Granting
Clause of the Indenture.
Securities Act. The Securities Act of 1933, as amended.
Series "A" or "Series A Certificates". Certificates issued and
designated as "Series A" under the Indenture, in the Principal Amount and
maturities and bearing interest as specified in Exhibit B to the Indenture
under the heading "Series A".
Series "B" or "Series B Certificates". Certificates issued and
designated as "Series B" under the Indenture, in the Principal Amount and
maturities and bearing interest as specified in Exhibit B to the Indenture
under the heading "Series B".
Series "C" or "Series C Certificates". Certificates issued and
designated as "Series C" under the Indenture, in the Principal Amount and
maturities and bearing interest as specified in Exhibit B to the Indenture
under the heading "Series C".
Series Supplement or Series Supplements. The Series Supplement
1997-1-A to be executed and delivered by the Lessee and the Pass Through
Trustee, the Series Supplement 1997-1-B to be executed and delivered by the
Lessee and the Pass Through Trustee or the Series Supplement 1997-1-C to be
executed and delivered by the Lessee and the Pass Through Trustee.
Sinking Fund Redemption Date. Has the meaning specified in Section
6.06 of the Indenture.
Sinking Fund Redemption Price. Has the meaning specified in Section
6.06 of the Indenture.
Special Aviation Counsel. Daugherty, Fowler & Peregrin.
Specified Investments. Shall mean (a) direct obligations of the
United States of America or obligations fully guaranteed by the United States
of America; (b) commercial paper rated A-1/P-1 by S&P and Moody's,
respectively or, if such ratings are unavailable, rated by any nationally
recognized rating organization in the United States equal to the highest
rating assigned by such rating organization; (c) investments in negotiable
certificates of deposit, time deposits, banker's acceptances, commercial paper
or other direct obligations of, or obligations guaranteed by, commercial banks
organized under the laws of the United States or of any political subdivision
thereof (or any U.S. branch of a foreign bank) with issuer ratings of at least
B/C by Thomson Bankwatch, having maturities no later than 90 days following
the date of such investment; (d) overnight federal funds transactions with
members of the Federal Reserve System arranged by federal funds brokers; or
(e) overnight repurchase agreements with respect to the securities described
in clause (a) above entered into with an office of a bank or trust company
which is located in the United States of America or any bank or trust company
which is organized under the laws of the United States or any state thereof
and has capital, surplus and undivided profits aggregating at least $500
million.
SSB. State Street Bank and Trust Company of Connecticut, National
Association, a national banking association.
Stipulated Loss Value. As of any Stipulated Loss Value Determination
Date during the Basic Term, the amount determined by multiplying the Purchase
Price by the percentage set forth in Schedule III of the Lease under the
heading "Stipulated Loss Value Factor" opposite such date (as such Schedule
III may be adjusted from time to time as provided in Section 3.04 of the
Lease), and during any Renewal Term, the amount determined pursuant to Section
4.01(b) of the Lease. Notwithstanding any other provisions of the Lease or
the Participation Agreement or the Indenture, each Stipulated Loss Value for
the Aircraft shall be, under any circumstances and in any event, an amount,
together with so much of the arrears portion of Basic Rent due and owing
through the date of payment of Stipulated Loss Value as does not constitute an
Excepted Payment, at least sufficient to pay in full as of such date of
payment the aggregate unpaid principal amount of and accrued interest on the
Certificates outstanding on such date of payment. Subject to the immediately
preceding sentence, it is understood and agreed that the amounts set forth on
Schedule III of the Lease, for dates other than Rent Payment Dates on which
arrears Basic Rent is due, fully reflect appropriate Basic Rent accruals and
credits of unearned Basic Rent through such date and, accordingly, no further
accrual or credit shall be required through such date whenever Stipulated Loss
Value is to be calculated with reference to any such date; provided that if
amounts in respect of Stipulated Loss Value are payable under the Operative
Agreements after the Stipulated Loss Determination Date in respect of which
such Stipulated Loss Value was determined, the Lessor shall be compensated
during the period from the Stipulated Loss Determination Date to such payment
date in accordance with the provisions of the Operative Agreements.
Stipulated Loss Value Determination Date. Each date set forth on
Schedule III of the Lease.
Subordination Agent. First Security Bank, National Association, a
national banking association, not in its individual capacity but solely as
Subordination Agent.
Supplemental Rent. (a) All amounts, liabilities and obligations
which the Lessee assumes or agrees to perform or pay under the Lease or under
the Participation Agreement or Tax Indemnity Agreement or any Ancillary
Agreement or any other Operative Agreement to the Lessor, the Owner
Participant, the Indenture Trustee, the Subordination Agent, any Liquidity
Provider or others, including, without limitation, payments of Stipulated Loss
Value, FPO Price and amounts calculated by reference to Termination Value, any
amounts of Make-Whole Premium payable under the Indenture to the extent
provided in Section 3.03 of the Lease, and all amounts required to be paid by
Lessee under the agreements, covenants and indemnities contained in the Lease
or in the Participation Agreement or the Tax Indemnity Agreement or any other
Operative Agreement, but excluding Basic Rent and (b) all amounts that the
Owner Trustee is obligated to pay in accordance with clause (b) of the last
paragraph of Section 2.04 of the Indenture.
Tax. Has the meaning set forth in Section 8.01(a) of the
Participation Agreement.
Tax Indemnity Agreement. The Tax Indemnity Agreement (Federal
Express Corporation Trust No. N670FE), dated as of May 1, 1997, between the
Lessee and the Owner Participant.
Term. The Basic Term of the lease for the Aircraft under the Lease
and, if renewed pursuant to Section 4.01 of the Lease, each Renewal Term for
the Aircraft for which the Lease is renewed, or such earlier date on which the
Lease is terminated pursuant to its terms.
Termination Date. A Rent Payment Date during the Basic Term that is
on or after December 31, 2004 in the case of Article 10 of the Lease, and in
the case of (i) Section 4.02(a)(A) of the Lease, the Rent Payment Date falling
on January 15, 2016, (ii) Section 4.02(a)(D) or (E) of the Lease, a Rent
Payment Date that is on or after the seventh anniversary of the Delivery Date
and (iii) Section 4.02(a)(F) of the Lease, the last day of the Basic Term.
Termination Value. As of any Termination Date, the amount determined
by multiplying the Purchase Price by the percentage set forth in Schedule IV
of the Lease under the heading "Termination Value Factor" opposite such
Termination Date (as such Schedule IV may be adjusted from time to time as
provided in Section 3.04 of the Lease). Notwithstanding any other provisions
of the Lease, the Participation Agreement or the Indenture, each Termination
Value shall be, under any circumstances and in any event, an amount, together
with so much of the arrears portion of Basic Rent due and owing through the
date of payment of any amount calculated by reference to Termination Value as
does not constitute an Excepted Payment, at least sufficient to pay in full as
of such date of payment the aggregate unpaid principal amount of and accrued
interest on the Certificates outstanding on such date of payment. Subject to
the immediately preceding sentence, it is understood and agreed that the
amounts set forth on Schedule IV of the Lease, for dates other than Rent
Payment Dates on which arrears Basic Rent is due, fully reflect appropriate
Basic Rent accruals and credits of unearned Basic Rent through such date and,
accordingly, no further accrual or credit shall be required through such date
whenever Termination Value is to be calculated with reference to any such
date; provided that if amounts in respect of Termination Value are payable
under the Operative Agreements after the Termination Date in respect of which
such Termination Value was determined, the Lessor shall be compensated during
the period from the Termination Date to such payment date in accordance with
the provisions of the Operative Agreements.
Transaction Costs. Those costs and expenses set forth in Section
10.01(a) of the Participation Agreement.
Transportation Code. Title 49 of the United States Code, as amended
and in effect on the date of the Lease or as subsequently amended, or any
successor or substituted legislation at the time in effect and applicable, and
the regulations promulgated pursuant thereto.
Treasury Yield. At the time of determination with respect to any
Certificate, the interest rate (expressed as a semi-annual equivalent and as a
decimal and, in the case of United States Treasury bills, converted to a bond
equivalent yield) determined to be the per annum rate equal to the semi-annual
yield to maturity for United States Treasury securities maturing on the
Average Life Date on such Certificate and trading in the public securities
markets either as determined by interpolation between the most recent weekly
average yield to maturity for two series of United States Treasury securities,
trading in public securities markets, (i) one maturing as close as possible to,
but earlier than, the Average Life Date of such Certificate and (ii) the other
maturing as close as possible to, but later than, the Average Life Date of
such Certificate. In each case as published in the most recent H.15(519) or,
if a weekly average yield to maturity for United States Treasury securities
maturing on the Average Life Date of such Certificate is reported on the most
recent H.15 (519), such weekly average yield to maturity as published in such
H.15(919). "H.15(519)" means the weekly statistical release designated as
such, or any successor publication, published by the Board of Governors of the
Federal Reserve System. The date of determination of a Make-Whole Premium
will be the third Business Day prior to the applicable prepayment date and the
"most recent H.15(519)" means the H.15(519) published prior to the close of
business on the third Business Day prior to the applicable prepayment date.
Trust Agreement. The Trust Agreement (Federal Express Corporation
Trust No. N670FE), dated as of May 1, 1997, between the Owner Participant and
the Owner Trustee in its individual capacity.
Trust Estate. The Lessor's Estate.
Trust Indenture Act. The Trust Indenture Act of 1939, as amended.
Trust Indenture Estate. All estate, right, title and interest of the
Indenture Trustee in and to any of the property, rights, interests and
privileges granted to the Indenture Trustee pursuant to the Granting Clause of
the Indenture, other than Excepted Payments and any and all other rights of
the Owner Trustee or the Owner Participant expressly reserved to the Owner
Trustee or the Owner Participant pursuant to the Indenture.
Underwriters. Morgan Stanley & Co. Incorporated, First Chicago
Capital Markets, Inc., Goldman, Sachs & Co. and J.P. Morgan & Co.
Underwriting Agreement. The Underwriting Agreement dated May 22, 1997
among the Lessee and the Underwriters.
United States, U.S. or US. The United States of America.
U.S. Air Carrier. Any United States air carrier as to which there is
in force a certificate issued pursuant to Section 41102(a) or Section 41103 of
the Transportation Code, and as to which there is in force an air carrier
operating certificate issued pursuant to Chapter 447 of the Transportation
Code and Part 121 of the regulations under such Transportation Code, for
aircraft capable of carrying ten (10) or more individuals or 6,000 pounds or
more of cargo, or which may operate as an air carrier by certification or
otherwise under any successor or substitute provision thereof or in absence
thereof.
U.S. Person. A Person described in Section 7701(a)(30) of the Code.
TRUST INDENTURE AND SECURITY AGREEMENT
(Federal Express Corporation Trust No. N671FE)
Dated as of May 1, 1997
between
STATE STREET BANK AND TRUST COMPANY OF CONNECTICUT,
NATIONAL ASSOCIATION,
Not in its Individual
Capacity, but solely
As Owner Trustee,
Owner Trustee
and
FIRST SECURITY BANK, NATIONAL ASSOCIATION,
Not in its Individual
Capacity, but solely
As Indenture Trustee,
Indenture Trustee
COVERING ONE AIRBUS A300F4-605R AIRCRAFT
SERIAL NO. 778, REGISTRATION NO. N671FE
==============================================================================
TABLE OF CONTENTS
Page
Initial Recitals......................................................... 1
Granting Clause.......................................................... 2
Habendum Clause.......................................................... 6
ARTICLE I
DEFINITIONS
Section 1.01. Definitions.............................................. 8
ARTICLE II
ISSUE, EXECUTION, FORM AND
REGISTRATION OF CERTIFICATES;
COLLATERAL ACCOUNT
Section 2.01. Authentication and Delivery of Certificates.............. 8
Section 2.02. Execution of Certificates................................ 9
Section 2.03. Certificate of Authentication............................ 9
Section 2.04. Form and Terms of Certificates; Payments of Principal,
Make-Whole Premium and Interest.......................... 9
Section 2.05. Payments from Trust Indenture Estate Only................ 12
Section 2.06. Registration, Transfer and Exchange...................... 13
Section 2.07. Mutilated, Defaced, Destroyed, Lost and Stolen
Certificates............................................. 14
Section 2.08. Cancellation of Certificates; Destruction Thereof........ 15
Section 2.09. Temporary Certificates................................... 15
Section 2.10. Termination of Interest in Trust Indenture Estate........ 16
Section 2.11. Certificates in Respect of Replacement Aircraft.......... 16
Section 2.12. Assumption of Obligations Under Certificates and Other
Operative Agreements..................................... 16
Section 2.13. Establishment of Collateral Account...................... 16
Section 2.14. Investment of Funds on Deposit in the Collateral Account. 17
Section 2.15. Release of Debt Portion and Lien on the Collateral Account
and the Liquid Collateral on Delivery Date............... 18
Section 2.16. Cut-Off Date............................................. 19
Section 2.17. Subordination............................................ 19
ARTICLE III
COVENANTS
Section 3.01. Payment of Principal, Make-Whole Premium and Interest.... 19
Section 3.02. Offices for Payments, etc................................ 20
Section 3.03. Appointment to Fill a Vacancy in Office of Indenture
Trustee.................................................. 20
Section 3.04. Paying Agents............................................ 20
Section 3.05. Covenants of SSB and the Owner Trustee................... 21
Section 3.06. [Reserved]............................................... 21
Section 3.07. Disposal of Trust Indenture Estate....................... 22
Section 3.08. No Representations or Warranties as to Aircraft or
Documents................................................ 22
Section 3.09. Further Assurances; Financing Statements................. 22
ARTICLE IV
HOLDER LISTS
Section 4.01. Holder Lists; Ownership of Certificates.................. 23
ARTICLE V
RECEIPT, DISTRIBUTION AND APPLICATION OF
INCOME FROM THE TRUST INDENTURE ESTATE
Section 5.01. Basic Rent Distribution.................................. 23
Section 5.02. Event of Loss and Replacement; Prepayment................ 24
Section 5.03. Payment After Indenture Event of Default, etc............ 25
Section 5.04. Certain Payments......................................... 27
Section 5.05. Other Payments........................................... 28
Section 5.06. Payments to Owner Trustee................................ 28
Section 5.07. Application of Payments.................................. 28
Section 5.08. Investment of Amounts Held by Indenture Trustee.......... 29
Section 5.09. Withholding Taxes........................................ 30
ARTICLE VI
PREPAYMENT OF CERTIFICATES
Section 6.01. No Prepayment Prior to Maturity.......................... 30
Section 6.02. Prepayment of Certificates............................... 30
Section 6.03. Notice of Prepayment to Holders.......................... 32
Section 6.04. Deposit of Prepayment Price and Sinking Fund Redemption
Price.................................................... 33
Section 6.05. Certificates Payable on Prepayment Date.................. 33
Section 6.06. Mandatory Sinking Fund Redemption........................ 33
ARTICLE VII
INDENTURE EVENTS OF DEFAULT; REMEDIES
OF INDENTURE TRUSTEE AND HOLDERS
Section 7.01. Indenture Event of Default............................... 35
Section 7.02. Remedies................................................. 38
Section 7.03. Return of Aircraft, etc.................................. 40
Section 7.04. Indenture Trustee May Prove Debt......................... 42
Section 7.05. Remedies Cumulative...................................... 44
Section 7.06. Suits for Enforcement.................................... 44
Section 7.07. Discontinuance of Proceedings............................ 45
Section 7.08. Limitations on Suits by Holders.......................... 45
Section 7.09. Unconditional Right of Holders to Receive Principal,
Interest and Make-Whole Premium, and to Institute
Certain Suits............................................ 45
Section 7.10. Control by Holders....................................... 46
Section 7.11. Waiver of Past Indenture Default......................... 46
Section 7.12. Notice of Indenture Default.............................. 47
ARTICLE VIII
RIGHTS OF THE OWNER TRUSTEE
AND THE OWNER PARTICIPANT
Section 8.01. Certain Rights of Owner Trustee and Owner Participant.... 47
Section 8.02. Owner Participant's Right to Elect to Prepay or Purchase the
Certificates............................................. 50
Section 8.03. Certain Rights of Owner Participant...................... 52
ARTICLE IX
CONCERNING THE INDENTURE TRUSTEE
Section 9.01. Acceptance of Trusts..................................... 53
Section 9.02. Duties and Responsibilities of the Indenture Trustee;
During an Indenture Event of Default; Prior to an
Indenture Event of Default............................... 54
Section 9.03. Certain Rights of the Indenture Trustee.................. 56
Section 9.04. Indenture Trustee Not Responsible for Recitals, Disposition
of Certificates or Application of Proceeds Thereof....... 57
Section 9.05. Indenture Trustee and Agents May Hold Certificates;
Collections, etc......................................... 57
Section 9.06. Moneys Held by Indenture Trustee......................... 57
Section 9.07. Right of Indenture Trustee to Rely on Officer's
Certificate, etc......................................... 57
Section 9.08. Replacement Airframes and Replacement Engines............ 58
Section 9.09. Indenture and Security Agreement Supplement for
Replacements............................................. 61
Section 9.10. Effect of Replacement.................................... 61
Section 9.11. Compensation............................................. 61
ARTICLE X
CONCERNING THE HOLDERS
Section 10.01. Evidence of Action Taken by Holders..................... 62
Section 10.02. Proof of Execution of Instruments and of Holding of
Certificates............................................ 62
Section 10.03. Holders to Be Treated as Owners......................... 63
Section 10.04. Certificates Owned by Owner Trustee and the Lessee Deemed
Not Outstanding......................................... 63
Section 10.05. Right of Revocation of Action Taken..................... 64
Section 10.06. ERISA................................................... 64
ARTICLE XI
INDEMNIFICATION OF INDENTURE
TRUSTEE BY OWNER TRUSTEE
ARTICLE XII
SUCCESSOR TRUSTEES
Section 12.01. Notice of Successor Owner Trustee....................... 66
Section 12.02. Resignation and Removal of Indenture Trustee;
Appointment of Successor................................ 66
Section 12.03. Persons Eligible for Appointment as Indenture Trustee... 67
Section 12.04. Acceptance of Appointment by Successor Trustee.......... 67
Section 12.05. Merger, Conversion, Consolidation or Succession to Business
of Indenture Trustee.................................... 68
Section 12.06. Appointment of Separate Trustees........................ 69
ARTICLE XIII
SUPPLEMENTS AND AMENDMENTS TO THIS
TRUST INDENTURE AND OTHER DOCUMENTS
Section 13.01. Supplemental Indentures Without Consent of Holders...... 71
Section 13.02. Supplemental Indentures With Consent of Holders......... 72
Section 13.03. Effect of Supplemental Indenture........................ 74
Section 13.04. Documents to Be Given to Indenture Trustee.............. 74
Section 13.05. Notation on Certificates in Respect of Supplemental
Indentures.............................................. 74
Section 13.06. No Request Necessary for Lease Supplement or Indenture and
Security Agreement Supplement........................... 74
Section 13.07. Notices to Liquidity Providers.......................... 74
ARTICLE XIV
SATISFACTION AND DISCHARGE OF INDENTURE;
UNCLAIMED MONEYS
Section 14.01. Satisfaction and Discharge of Indenture; Termination of
Indenture............................................... 75
Section 14.02. Application by Indenture Trustee of Funds Deposited for
Payment of Certificates................................. 76
Section 14.03. Repayment of Moneys Held by Paying Agent................ 76
Section 14.04. Transfer of Moneys Held by Indenture Trustee and Paying
Agent Unclaimed for Two Years and Eleven Months......... 76
ARTICLE XV
MISCELLANEOUS
Section 15.01. Capacity in Which Acting................................ 77
Section 15.02. No Legal Title to Trust Indenture Estate in Holders..... 77
Section 15.03. Sale of Trust Indenture Estate by Indenture Trustee is
Binding................................................. 77
Section 15.04. Indenture for Benefit of Owner Trustee, Indenture Trustee,
Owner Participant, Holders and Liquidity Providers...... 77
Section 15.05. No Action Contrary to the Lessee's Rights Under the
Lease................................................... 78
Section 15.06. Notices................................................. 78
Section 15.07. Officer's Certificates and Opinions of Counsel; Statements
to Be Contained Therein................................. 79
Section 15.08. Severability............................................ 80
Section 15.09. No Oral Modifications or Continuing Waivers............. 80
Section 15.10. Successors and Assigns.................................. 80
Section 15.11. Headings................................................ 80
Section 15.12. Normal Commercial Relations............................. 80
Section 15.13. Governing Law; Counterparts............................. 80
Exhibit A -- Form of Indenture and Security Agreement Supplement
Exhibit B -- Form of Certificate
Schedule I -- [Reserved]
Schedule II -- Definitions
TRUST INDENTURE AND SECURITY AGREEMENT
(FEDERAL EXPRESS CORPORATION TRUST NO. N671FE)
TRUST INDENTURE AND SECURITY AGREEMENT (FEDERAL EXPRESS CORPORATION
TRUST NO. N671FE) dated as of May 1, 1997 (the "Indenture"), between STATE
STREET BANK AND TRUST COMPANY OF CONNECTICUT, NATIONAL ASSOCIATION, a national
banking association, not in its individual capacity, except as otherwise
specifically set forth herein (when acting in such individual capacity,
"SSB"), but solely as owner trustee (the "Owner Trustee") under the Trust
Agreement, as defined herein, and FIRST SECURITY BANK, NATIONAL ASSOCIATION, a
national banking association, as Indenture Trustee hereunder (the "Indenture
Trustee").
W I T N E S S E T H:
-------------------
WHEREAS, capitalized terms used herein shall have the respective
meanings set forth or referred to in Article I hereof;
WHEREAS, the Owner Participant and SSB have, immediately prior to the
execution and delivery of this Indenture, entered into a Trust Agreement
(Federal Express Corporation Trust No. N671FE) dated as of the date hereof (as
amended or otherwise modified from time to time in accordance with the
provisions thereof and of the Participation Agreement, the "Trust Agreement"),
whereby, among other things, SSB has declared a certain trust for the use and
benefit of the Owner Participant, subject, however, to the Lien of this
Indenture for the use and benefit of, and with the priority of payment to, the
holders of the Certificates issued hereunder, and the Owner Trustee is
authorized and directed to execute and deliver this Indenture;
WHEREAS, the Owner Trustee desires by this Indenture, among other
things (i) to provide for the issuance by the Owner Trustee of Certificates as
provided in the Participation Agreement, and (ii) to provide for the
assignment, mortgage and pledge by the Owner Trustee to the Indenture Trustee,
as part of the Trust Indenture Estate hereunder of the Owner Trustee's right,
title and interest in the Liquid Collateral and after the Delivery Date for
the assignment, mortgage and pledge by the Owner Trustee to the Indenture
Trustee, as part of the Trust Indenture Estate hereunder, of among other
things, certain of the Owner Trustee's estate, right, title and interest in
and to the Aircraft and the Indenture Documents and certain payments and other
amounts (other than Excepted Payments) received hereunder or thereunder in
accordance with the terms hereof, as security for, among other things, the
Owner Trustee's obligations to the Certificate Holders and for the benefit and
security of such Holders;
WHEREAS, all things have been done to make the Certificates, when
executed by the Owner Trustee, and authenticated, issued and delivered
hereunder, the valid obligations of the Owner Trustee; and
WHEREAS, all things necessary to make this Indenture the valid,
binding and legal obligation of the Owner Trustee, enforceable in accordance
with its terms, have been done and performed and have happened.
NOW, THEREFORE, the parties agree as follows:
GRANTING CLAUSE
NOW, THEREFORE, in consideration of the mutual promises contained
herein and to secure (i) the prompt payment of the principal of and Make-Whole
Premium, if any, and interest on, and all other amounts due with respect to,
all the Certificates from time to time outstanding under this Indenture and
all other amounts due hereunder and (ii) the performance and observance by the
Owner Trustee of all the agreements, covenants and provisions in this
Indenture, in the Certificates, in the Participation Agreement and in the
Lease contained for the benefit of the Holders of the Certificates, and the
prompt payment of any and all amounts from time to time owing under the
Participation Agreement by the Owner Trustee, the Owner Participant or the
Lessee to the Holders (collectively the "Secured Obligations") and for the uses
and purposes and subject to the terms and provisions of this Indenture, and in
consideration of the premises and of the covenants in this Indenture and in the
Certificates and of the purchase of the Certificates by their Holders, and of
the sum of $1 paid to the Owner Trustee by the Indenture Trustee at or before
the delivery of this Indenture, the receipt and sufficiency of which is hereby
acknowledged, the Owner Trustee has granted, bargained, sold, assigned,
transferred, conveyed, mortgaged, pledged, granted a first priority security
interest in and confirmed, and does hereby grant, bargain, sell, assign,
transfer, convey, mortgage, pledge and grant a first priority security
interest in and confirm to the Indenture Trustee, its successors and assigns,
in trust for the equal and ratable security and benefit of the Holders from
time to time of the Certificates, a first priority security interest in and
first mortgage Lien on all estate, right, title and interest of the Owner
Trustee in, to and under the following described property, rights and
privileges other than Excepted Payments, which collectively, excluding
Excepted Payments but including all property specifically subjected to the
Lien of this Indenture by the terms hereof, by any Indenture and Security
Agreement Supplement or any mortgage supplemental to this Indenture, are
included within the Trust Indenture Estate, subject always to the rights
granted to the Owner Trustee or the Owner Participant hereunder and to the
other terms and conditions of this Indenture:
(1) The Airframe, as the same is more particularly described in the
Indenture and Security Agreement Supplement and any airframe substituted in
replacement thereof pursuant to the provisions of this Indenture; the Engines,
as the same are more particularly described in the Indenture and Security
Agreement Supplement, whether or not such Engines shall be installed in or
attached to the Airframe or any other airframe, and any Replacement Engine
therefor; and all Parts in respect of the Airframe and the Engines and all
records, logs and other documents at any time maintained with respect to the
foregoing property;
(2) The Lease and all Rent thereunder, including, without limitation,
all amounts of Basic Rent and Supplemental Rent, and payments of any kind
thereunder and including all rights of the Owner Trustee to execute any
election or option or to give or receive any notice, consent, waiver or
approval under or in respect of the Lease or to accept any surrender of the
Aircraft or any part thereof as well as any rights, powers or remedies on the
part of the Owner Trustee, whether arising under the Lease or by statute or at
law or in equity or otherwise arising out of any Event of Default;
(3) The Purchase Agreement, the Purchase Agreement Assignment, the
AVSA Consent and Agreement, the Consent and Agreement, the Consent and
Guaranty, the GTA, the Engine Warranty Assignment and the Engine Consent,
AVSA's FAA Bill of Sale, AVSA's Warranty Bill of Sale, the Airbus Guaranty,
the Ancillary Agreements and the Participation Agreement (to the extent of
amounts payable to the Owner Trustee thereunder) (collectively, and together
with the Lease, the Trust Agreement and the Certificates, the "Indenture
Documents"), including all rights of the Owner Trustee to execute any election
or option or to give or receive any notice, consent, waiver or approval under
or in respect of any of the foregoing documents and instruments;
(4) All the tolls, rents, issues, profits, products, revenues and
other income (including sales proceeds) of the property subjected or required
to be subjected to the Lien of this Indenture, and all of the estate, right,
title and interest of the Owner Trustee in and to the same and every part of
said property;
(5) The Collateral Account, the Liquid Collateral and all other
moneys and securities (including Permitted Investments) now or hereafter paid
or deposited or required to be paid or deposited to or with the Indenture
Trustee by or for the account of the Owner Trustee pursuant to any term of any
Operative Agreement, except the Tax Indemnity Agreement, and held or required
to be held by the Indenture Trustee hereunder;
(6) All requisition proceeds with respect to the Aircraft or any part
thereof (to the extent of the Owner Trustee's interest therein pursuant to the
terms of the Lease) and all insurance proceeds with respect to the Aircraft or
any part thereof from insurance required to be maintained by the Lessee under
Article 13 of the Lease, but excluding any insurance maintained by the Lessee
and not required under Article 13 of the Lease; and
(7) All proceeds of the foregoing.
EXCLUDING, HOWEVER, from the foregoing grant of the Lien and security
interest of this Indenture and from the Trust Indenture Estate, (i) all
Excepted Payments, including without limitation all right, title and interest
of the Owner Participant in, to and under the Tax Indemnity Agreement and any
moneys due or to become due under the Tax Indemnity Agreement and all rights
to collect and enforce Excepted Payments and (ii) rights granted to or
retained by the Owner Trustee or the Owner Participant hereunder and SUBJECT
TO the following provisions:
(a) (i) whether or not an Indenture Event of Default shall occur and
be continuing, the Owner Trustee and the Owner Participant shall at all times
retain the right, to the exclusion of the Indenture Trustee, (A) to Excepted
Payments and to commence an action at law to obtain or otherwise demand, sue
for or receive and enforce the payment of such Excepted Payments, (B) to
exercise any election or option or make any decision or determination or to
give or receive any notice (including notice of Default), consent, waiver or
approval in respect of any such Excepted Payment, (C) to adjust (and make any
decision or determination or give any notice or consent with respect to) Basic
Rent and the percentages relating to Stipulated Loss Value and Termination
Value and the FPO Price as provided in Section 3.04 of the Lease and Section
15.01 of the Participation Agreement, (D) to exercise any election or option to
make any decision or determination, or to give or receive any notice, consent,
waiver or approval, or to take any other action in respect of, but in each
case only to the extent relating to, Excepted Payments (except for, in respect
of any portion of Basic Rent constituting an Excepted Payment, any action
changing the manner by which such Basic Rent is to be paid), (E) to retain the
rights of the "Lessor" with respect to solicitations of bids, and the election
to retain the Aircraft pursuant to Article 10 of the Lease, (F) to retain the
right of "Lessor" to determine the Fair Market Rental or Fair Market Value
pursuant to Article 4 of the Lease, (G) to exercise all other rights of the
Lessor under Articles 4 and 10 of the Lease with respect to the retention or
purchase by the Lessee or the Lessor of the Aircraft or the exercise by the
Lessee of the Lessee's renewal or purchase options, (H) to retain all rights
with respect to insurance maintained for its own account which Section 13.05
of the Lease specifically confers on the "Lessor", (I) to approve appraisers,
lawyers and other professionals and receive notices, certificates, reports,
filings, opinions and other documents, in each case with respect to matters
relating to the Owner Participant's tax position, (J) to approve any
accountants to be used in the verification of any Rent adjustment, and (K) to
exercise, to the extent necessary to enable it to exercise its rights under
Section 8.03 hereof, the rights of the "Lessor" under Section 17.04 of the
Lease;
(ii) whether or not an Indenture Event of Default shall occur and be
continuing, the Owner Trustee and the Indenture Trustee shall each have the
rights separately but not to the exclusion of the other (agreement of both
required in the case of clause (E) below), (A) to receive from the Lessee all
notices, certificates, reports, filings, opinions of counsel, copies of all
documents and all information which the Lessee is permitted or required to
give or furnish to the "Lessor" pursuant to the Lease or to the Owner Trustee
pursuant to any other Operative Agreement, (B) to exercise inspection rights
pursuant to Section 14.01 of the Lease (provided that if an Indenture Event of
Default shall be continuing, no inspection right of the Owner Trustee shall
interfere with the efforts of the Indenture Trustee to exercise remedies under
the Lease or this Indenture), (C) to maintain separate insurance pursuant to
Section 13.05 of the Lease and to retain all rights with respect to such
insurance maintained for its own account, (D) to give any notice of default
under Section 16.01 of the Lease and (E) the right to consent to changes to
the list of countries on Schedule III to the Participation Agreement;
(iii) subject to the last sentence of this clause (a), (A) so long as
no Indenture Event of Default not constituting an Event of Default shall have
occurred and be continuing (but subject to the provisions of Section 8.01
hereof), the Owner Trustee shall retain the right, to the exclusion of the
Indenture Trustee (or, if an Indenture Event of Default that is also an Event
of Default shall have occurred and be continuing, acting jointly with and not
to the exclusion of the Indenture Trustee), to exercise all rights, elections
and options of the Lessor in connection with the return of the Aircraft under
Article 12 of the Lease (but not Article 17 thereof, it being understood that
the Indenture Trustee shall have the exclusive right to exercise remedies
pursuant to such Article 17, including in respect of any related return of the
Aircraft pursuant to Article 12 of the Lease), including the right to approve
as satisfactory any accountants, engineers, appraisers or counsel to render
services for or issue appraisals, reports, certificates or opinions to the
Owner Trustee and to exercise all rights, elections and options of the Lessor
in connection with the return of the Aircraft pursuant to the express
provisions of the Operative Agreements, and (B) so long as no Indenture Event
of Default not constituting an Event of Default shall have occurred and be
continuing (but subject to the provisions of Section 8.01 hereof), the Owner
Trustee shall retain the right, jointly with the Indenture Trustee (agreement
of both not being required), to further assurances and financial information
from the Lessee pursuant to Section 19.01 of the Lease (other than the right
to receive any funds to be delivered to the "Lessor" under the Lease (except
funds delivered with respect to Excepted Payments) and under the Purchase
Agreement;
(iv) subject to the last sentence of this clause (a), at all times
the Owner Trustee shall have the right as Lessor, but not to the exclusion of
the Indenture Trustee, to seek specific performance of the covenants of the
Lessee under the Lease relating to the protection, insurance, maintenance,
possession and use of the Aircraft; and
(v) at all times the Owner Trustee and the Owner Participant shall
have the rights granted to them under Articles VI, VIII and X and Section 7.02
hereof.
Notwithstanding the foregoing, but subject always to the provisions of Section
15.05 hereof, the Indenture Trustee shall at all times have the right, to the
exclusion of the Owner Trustee and the Owner Participant, to (A) (other than
with respect to Excepted Payments) declare the Lease to be in default under
Article 17 thereof or any statute (including, without limitation, Article 2-A
of the Uniform Commercial Code) and (B) subject only to the provisions of this
Indenture, (other than in connection with Excepted Payments) exercise the
remedies set forth in such Article 17 of the Lease any statute (including
without limitation Article 2-A of the Uniform Commercial Code), at law and in
Article 7 hereof.
(b) The foregoing provisions in paragraph (a) above shall be equally
applicable to all rights of the Indenture Trustee in respect of Ancillary
Agreement I and Ancillary Agreement II, whether such rights are granted
directly to the Indenture Trustee under such agreements or are granted under
the Granting Clause of this Indenture.
(c) The leasehold interest granted to the Lessee by the Lease shall
not be subject to the security interest granted by this Indenture, and nothing
in this Indenture shall affect the rights of the Lessee under the Lease so
long as no Event of Default has occurred and is continuing.
HABENDUM CLAUSE
TO HAVE AND TO HOLD the aforesaid property unto the Indenture Trustee,
its successors and assigns, in trust for the equal and ratable benefit and
security of the Holders from time to time of the Certificates, without any
priority of any one Certificate over any other and for the uses and purposes
and subject to the terms and conditions set forth in this Indenture and the
rights of the Owner Trustee and the Owner Participant under this Indenture.
It is expressly agreed that anything contained in this Indenture to
the contrary notwithstanding, the Owner Trustee shall remain liable under the
Indenture Documents to perform all of the obligations assumed by it under any
of those documents, all in accordance with and pursuant to the terms and
provisions of those documents, and the Indenture Trustee and the Holders of
the Certificates shall have no obligation or liability under the Indenture
Documents by reason of or arising out of the assignment under this Indenture,
nor shall the Indenture Trustee or the Holders of the Certificates be required
or obligated in any manner to perform or fulfill any obligations of the Owner
Trustee under or pursuant to the Indenture Documents or, except as expressly
provided in this Indenture, to make any payment, or to make any inquiry as to
the nature or sufficiency of any payment received by it, or present or file
any claim, or take any action to collect or enforce the payment of any amounts
which may have been assigned to it or to which it may be entitled at any time
or times.
Effective upon the occurrence and continuance of an Indenture Event of
Default, the Owner Trustee hereby constitutes the Indenture Trustee the true
and lawful attorney of the Owner Trustee, irrevocably, with full power (in the
name of the Owner Trustee or otherwise), subject to the terms and conditions
of this Indenture, to ask, require, demand, receive, compound and give
acquittance for any and all Basic Rent, Supplemental Rent payable to the Owner
Trustee, Stipulated Loss Value and Termination Value payments, insurance
proceeds and any and all moneys and claims for moneys due and to become due
under or arising out of the Lease (subject to Section 8.01 hereof) or the
other Indenture Documents (other than Excepted Payments), to endorse any
checks or other instruments or orders in connection with the same and to file
any claims, take any action or institute any proceeding which the Indenture
Trustee may deem to be necessary or advisable in the premises.
Under the Lease the Lessee is directed to make all payments of Rent
(other than Excepted Payments not constituting Basic Rent) payable to the
Owner Trustee and all other amounts (other than Excepted Payments not
constituting Basic Rent) which are required to be paid to or deposited with
the Owner Trustee pursuant to the Lease directly to the Indenture Trustee at
such address in the United States of America as the Indenture Trustee shall
specify for application as provided in this Indenture. The Owner Trustee
agrees that if, notwithstanding such provision, it shall have received any
such amounts, promptly on receipt of any such payment, it will transfer to the
Indenture Trustee any and all moneys from time to time received by the Owner
Trustee constituting part of the Trust Indenture Estate for distribution by
the Indenture Trustee pursuant to this Indenture, except that the Owner
Trustee shall accept for distribution pursuant to the Trust Agreement (i) any
amounts distributed to it by the Indenture Trustee under this Indenture, and
(ii) any Excepted Payments not constituting Basic Rent.
The Owner Trustee agrees that at any time and from time to time, upon
the written request of the Indenture Trustee, the Owner Trustee will, at the
expense of the Lessee, promptly and duly execute and deliver or cause to be
duly executed and delivered any and all such further instruments and documents
as the Indenture Trustee may reasonably deem desirable in obtaining the full
benefits of the assignment hereunder and of the rights and powers herein
granted; provided, however, that the Owner Trustee shall have no obligation to
execute and deliver or cause to be executed or delivered to the Indenture
Trustee any such instrument or document if such execution and delivery would
result in the imposition of additional liabilities on the Owner Trustee or the
Owner Participant or would result in a burden on the Owner Participant's
business activities, unless the Owner Trustee or the Owner Participant, as the
case may be, is indemnified to its reasonable satisfaction against any losses,
liabilities and expenses incurred in connection with such execution and
delivery.
The Owner Trustee does hereby warrant and represent that it has not
assigned, pledged or otherwise disposed of, and hereby covenants that it will
not assign or pledge or otherwise dispose of, so long as the assignment
hereunder shall remain in effect and shall not have been terminated pursuant
to Section 14.01 hereof, any of its right, title or interest hereby assigned,
to anyone other than the Indenture Trustee, and that it will not, except in
respect of Excepted Payments or otherwise as provided in or permitted by this
Indenture, enter into an agreement amending or supplementing any of the
Indenture Documents, settle or compromise any claim (other than claims in
respect of Excepted Payments) against the Lessee arising under any of the
Indenture Documents, or submit or consent to the submission of any dispute,
difference or other matter arising under or in respect of any of the Indenture
Documents, to arbitration thereunder.
Concurrently with the delivery of this Indenture, the Owner Trustee
has delivered to the Indenture Trustee executed counterparts of the Trust
Agreement and the chattel paper original counterpart of the Lease.
It is hereby further covenanted and agreed by and between the parties
as follows:
ARTICLE I
DEFINITIONS
Section 1.01. Definitions. Unless the context otherwise requires,
capitalized terms utilized herein shall have the meanings set forth in
Schedule II hereto for all purposes of this Indenture and shall be equally
applicable to both the singular and plural forms of the terms defined.
ARTICLE II
ISSUE, EXECUTION, FORM AND
REGISTRATION OF CERTIFICATES;
COLLATERAL ACCOUNT
Section 2.01. Authentication and Delivery of Certificates.
Forthwith upon the execution and delivery of this Indenture, and from time to
time thereafter, Certificates in an aggregate principal amount not in excess
of the amount specified in Section 2.04 hereof (except as otherwise provided
in Sections 2.06 and 2.07 hereof) shall be executed by the Owner Trustee and
delivered to the Indenture Trustee for authentication, and the Indenture
Trustee shall thereupon authenticate and deliver said Certificates to or upon
the oral or written order of the Owner Trustee, signed, if written, by an
authorized officer of the Owner Trustee, without any further action by the
Owner Trustee.
Section 2.02. Execution of Certificates. The Certificates shall be
signed on behalf of the Owner Trustee by an authorized officer of SSB. Such
signatures may be the manual or facsimile signatures of such officer and minor
errors or defects in any reproduction of any such signature shall not affect
the validity or enforceability of any Certificate which has been duly
authenticated and delivered by the Indenture Trustee.
In case any officer of SSB who shall have signed any of the
Certificates shall cease to be such officer before the Certificate so signed
shall be authenticated and delivered by the Indenture Trustee or disposed of
by SSB, such Certificate nevertheless may be authenticated and delivered or
disposed of as though the person who signed such Certificate had not ceased to
be such officer of SSB; and any Certificate may be signed on behalf of the
Owner Trustee by such person or persons as, at the actual date of the
execution of such Certificate, shall be the proper officers of SSB, although
at the date of the execution and delivery of this Indenture any such person
was not such an officer. Certificates bearing the facsimile signatures of
individuals who were authorized officers of SSB at the time such Certificates
were issued shall bind the Owner Trustee, notwithstanding that such
individuals or any of them have ceased to hold such offices prior to the
authentication and delivery of such Certificates or did not hold such offices
at the respective dates of such Certificates.
Section 2.03. Certificate of Authentication. Only such Certificates
as shall bear thereon a certificate of authentication substantially in the
form set forth in Exhibit B, executed by the Indenture Trustee by manual
signature of one of its authorized officers, shall be entitled to the security
and benefits of this Indenture or be valid or obligatory for any purpose.
Such certificate by the Indenture Trustee upon any Certificate executed by the
Owner Trustee shall be conclusive evidence that the Certificate so
authenticated has been duly authenticated and delivered hereunder and that the
Holder, as evidenced on the Register, is entitled to the security and benefits
of this Indenture.
Section 2.04. Form and Terms of Certificates; Payments of Principal,
Make-Whole Premium and Interest. The Certificates and the Indenture Trustee's
certificate of authentication shall be substantially in the form set forth in
Exhibit B hereto. Certificates may differ with respect to Maturity (subject
to Section 15.01(d) of the Participation Agreement) and as to other terms.
The Certificates shall be issuable as registered securities without coupons
and shall be numbered, lettered, or otherwise distinguished in such manner or
in accordance with such plans as the Owner Trustee executing the same may
determine with the approval of the Indenture Trustee.
The aggregate principal amount of Certificates that may be
authenticated and delivered under this Indenture is limited as provided in the
form of Certificate attached as Exhibit B hereto. The Certificates shall be
issued in registered form only and in denominations of $1,000 and any integral
multiple thereof, shall be dated the Certificate Closing Date, shall be issued
in three separate series consisting of Series A, Series B and Series C and
shall be issued in the Maturities and principal amounts, and shall bear
interest at the rates per annum, specified in the form of Certificate set forth
in Exhibit B.
Any of the Certificates may be issued with appropriate insertions,
omissions, substitutions and variations, and may have imprinted or otherwise
reproduced thereon such legend or legends, not inconsistent with the
provisions of this Indenture, as may be required to comply with any law or
with any rules or regulations pursuant thereto, or with the rules of any
securities market in which the Certificates are admitted to trading, or to
conform to general usage.
Each Certificate shall bear interest from the date of original
issuance thereof or from the most recent date to which interest has been paid
and duly provided for, as the case may be, which shall be payable on the dates
specified on the face of the form of Certificate set forth in Exhibit B hereto
until the principal thereof is paid. Interest shall be calculated on the
basis of a 360-day year of twelve 30-day months.
Notwithstanding the preceding paragraph, each Certificate shall bear
interest at the Past Due Rate on any principal, interest and any other amount
payable hereunder or under such Certificate, which shall not be paid in full
when due (whether at stated maturity, by acceleration, by mandatory prepayment
or otherwise), for the period from and including the due date thereof to but
excluding the date the same is paid in full, payable from time to time on
demand of the Indenture Trustee.
The principal of, and Make-Whole Premium, if any, and interest on, the
Certificates shall be payable at the Corporate Trust Department of the
Indenture Trustee or at any office or agency maintained for such purpose
pursuant to Section 3.02 hereof in immediately available funds prior to 10:30
A.M. (New York time) on the due date thereof and the Indenture Trustee shall
remit all such amounts received by it to the Holders at such account or
accounts at such financial institution or institutions as the Holders shall
have designated to the Indenture Trustee in writing, in immediately available
funds, such payment to be made if the payment was received prior to 10:30 A.M.
New York time by the Indenture Trustee on any Business Day, by 12:00 noon New
York time on such Business Day; otherwise, the Indenture Trustee shall make
payment promptly, but not later than 11:00 A.M. New York time on the next
succeeding Business Day; provided, however, that interest may be payable at the
option of the Indenture Trustee or its Paying Agent, as defined in Section
3.04, by mailing checks for such interest payable to or upon the written order
of the Holders entitled thereto as they shall appear on the Register. If any
amount payable under the Certificates, or under this Indenture, falls due on a
day that is not a Business Day, then such sum shall be payable on the next
succeeding Business Day, without (provided that payment is made on such next
succeeding Business Day) additional interest thereon for the period of such
extension.
The Holder at the close of business on any Record Date with respect
to any Payment Date shall be entitled to receive the interest if any payable
on such Payment Date notwithstanding any transfer or exchange of such
Certificate subsequent to the Record Date and prior to such Payment Date,
except if and to the extent the Owner Trustee shall default in the payment of
the interest due on such Payment Date, in which case such defaulted interest
shall be paid to the Holder at the close of business on a subsequent Record
Date (which shall be not less than five (5) or more than fifteen (15) Business
Days prior to the date of payment of such defaulted interest) established by
notice given by mail by or on behalf of the Owner Trustee to the Holders not
less than fifteen (15) days preceding such subsequent Record Date.
The Owner Trustee agrees to pay to the Indenture Trustee for
distribution in accordance with Section 5.04 hereof (a) any and all indemnity
amounts received by the Owner Trustee which are payable by the Lessee to (i)
the Indenture Trustee in its individual capacity, (ii) the Subordination Agent
or (iii) each Liquidity Provider, in each case pursuant to Article 8 or 9 of
the Participation Agreement (it being acknowledged that the Lessee has been
instructed to pay such amounts to the Person or Persons entitled thereto) and
(b) the Owner Trustee's pro rata share of all amounts owed to each Liquidity
Provider by the Subordination Agent under each Liquidity Facility other than
amounts due as (i) repayments of the principal of advances thereunder, and (ii)
interest on Interest Drawings and Final Drawings except to the extent included
in Net Interest and Related Charges. As used in this Section, the Owner
Trustee's pro rata share means as of any time:
(A) with respect to all amounts other than Net Interest and
Related Charges, a fraction the numerator of which is the aggregate
principal balance then outstanding of the Certificates issued under
this Indenture (other than the Series C Certificates) and the
denominator of which is the aggregate principal balance of all
Certificates issued under this Indenture and the Related Indentures
(other than the Series C Certificates), plus
(B) with respect to all Net Interest and Related Charges (x)
if there exists a Payment Default under any Certificate issued under
this Indenture a fraction, the numerator of which is the aggregate
principal balance then outstanding of Certificates issued under this
Indenture (other than the Series C Certificates) and the denominator
of which is the aggregate principal balance then outstanding of all
Certificates issued under this Indenture and the Related Indentures
(other than the Series C Certificates) under which there exists a
Payment Default or (y) at all other times, zero.
As used in this Section, "Net Interest and Related Charges" means the sum of
(i) the amount, if any, by which interest payable to each Liquidity Provider
on any Interest Drawing and/or Final Drawing exceeds the amount which would be
payable if such drawings bore interest at the weighted average Past Due Rate
applicable to amounts in default on all Certificates plus (ii) any amounts
payable under Section 3.01, Section 3.02, Section 3.03, Section 3.09 or
Section 7.07 of each Liquidity Facility (or similar provisions of any
replacement Liquidity Facility) which result from any Interest Drawing or
Final Drawing. As used in this Section, a Payment Default when used in
connection with a Certificate issued hereunder or a Certificate issued under
any Related Indenture means a default in the payment of principal thereof or
interest thereon (which default has not been cured), other than solely because
of acceleration.
Section 2.05. Payments from Trust Indenture Estate Only. All
payments to be made by the Owner Trustee under this Indenture shall be made
only from the income and the proceeds from the Lessor's Estate to the extent
included in the Trust Indenture Estate and from any other amounts of the type
described in Section 5.01 hereof (but only to the extent actually received by
the Indenture Trustee) and only to the extent that the Owner Trustee shall
have sufficient income or proceeds from the Lessor's Estate to the extent
included in the Trust Indenture Estate (and such other amounts) to enable the
Indenture Trustee to make distributions of the amounts due in respect of the
Certificates in accordance with the terms hereof and thereof. Each Holder by
its acceptance of a Certificate agrees that it will look solely to the income
and proceeds from the Trust Indenture Estate (and such other amounts of the
type described in Section 5.01 hereof but only to the extent actually received
by the Indenture Trustee) to the extent available for distribution to it as
provided herein and that neither the Owner Participant, the Owner Trustee, SSB
nor the Indenture Trustee is personally liable to such Holder for any amounts
payable under this Indenture or such Certificate or for any amounts payable or
liability under any Certificate or this Indenture, except as expressly
provided herein in the case of SSB, the Owner Trustee or the Indenture
Trustee.
SSB is not personally liable to any Holder, the Lessee, the Owner
Participant or the Indenture Trustee for any amounts payable under this
Indenture or for any liability under this Indenture or the Certificates,
except as a result of SSB's gross negligence or willful misconduct, or as
otherwise expressly provided herein or in the Participation Agreement.
If (1) all or any part of the Lessor's Estate becomes the property of
a debtor subject to the reorganization provisions of the Bankruptcy Code, (2)
pursuant to such reorganization provisions the Owner Participant is required,
by reason of the Owner Participant being held to have recourse liability to
the debtor or the trustee of the debtor directly or indirectly, to make
payment on account of any amount payable as principal of or interest,
Make-Whole Premium or other amounts payable on the Certificates, and (3) the
Indenture Trustee actually receives any Recourse Amount which reflects any
payment by the Owner Participant on account of (2) above, then the Indenture
Trustee shall promptly refund to the Owner Participant such Recourse Amount.
Nothing contained in this paragraph shall prevent the Indenture Trustee from
enforcing any personal recourse obligation (and retaining the proceeds
thereof) of the Owner Participant under the Participation Agreement, or from
retaining any amount paid by the Owner Participant under Sections 5.01, 8.02
and 8.03 hereof.
Section 2.06. Registration, Transfer and Exchange. The Indenture
Trustee will keep, on behalf of the Owner Trustee, at each office or agency to
be maintained for the purpose as provided in Section 3.02 hereof a Register or
Registers on which, subject to such reasonable regulations as it may
prescribe, it will register, and will register the transfer of, Certificates
as provided in this Article. Such Register shall be in written form in the
English language or in any other form capable of being converted into such
form within a reasonable period of time.
Upon due presentation for registration of transfer of any Certificate
at any such office or agency, the Owner Trustee shall execute and the
Indenture Trustee shall authenticate and deliver in the name of the transferee
or transferees a new Certificate or Certificates of the same Series and
Maturity, principal amount and interest rate and in authorized denominations
for an equal aggregate principal amount; provided, that such Certificate being
transferred shall be cancelled in accordance with Section 2.08 hereof
simultaneously with the issuance of the new Certificate.
Any Certificate or Certificates may be exchanged for a Certificate or
Certificates of the same Series and Maturity and interest rate but in other
authorized denominations, in an equal aggregate principal amount.
Certificates to be exchanged shall be surrendered at any office or agency to
be maintained by the Indenture Trustee for the purpose as provided in Section
3.02 hereof, and the Owner Trustee shall execute and the Indenture Trustee
shall authenticate and deliver in exchange therefor the Certificate or
Certificates which the Holder making the exchange shall be entitled to
receive, bearing numbers not contemporaneously or previously outstanding.
All Certificates presented for registration of transfer, exchange,
prepayment or payment shall (if so required by the Owner Trustee or the
Indenture Trustee) be duly endorsed by, or be accompanied by a written
instrument or instruments of transfer in form satisfactory to the Owner
Trustee and the Indenture Trustee duly executed by the Holder or its attorney
duly authorized in writing and (except in the case of transfers pursuant to
Section 15.01 of the Participation Agreement) the Indenture Trustee may
require evidence satisfactory to it as to the compliance of any such transfer
with the Securities Act.
The Indenture Trustee may require payment from the Holder of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any exchange or registration of transfer of Certificates. No
service charge shall be levied for any such transaction.
The Indenture Trustee shall not be required to exchange or register a
transfer of any Certificates (a) for a period of fifteen (15) days immediately
preceding the first mailing of notice of prepayment of such Certificates or
(b) with respect to which notice of prepayment has been given pursuant to
Section 6.03 hereof and such notice has not been revoked.
All Certificates issued upon any transfer or exchange of Certificates
shall be valid obligations of the Owner Trustee, evidencing the same debt, and
entitled to the same security and benefits under this Indenture, as the
Certificates surrendered upon such transfer or exchange.
Section 2.07. Mutilated, Defaced, Destroyed, Lost and Stolen
Certificates. In case any temporary or definitive Certificate shall become
mutilated, defaced or be apparently destroyed, lost or stolen, the Owner
Trustee in its discretion may execute, and upon the oral or written request of
any officer of SSB, the Indenture Trustee shall authenticate and deliver, a
new Certificate of like Maturity, principal amount and interest rate as the
Certificate being replaced, bearing a number not contemporaneously or
previously outstanding, in exchange and substitution for the mutilated or
defaced Certificate, or in lieu of and substitution for the Certificate so
apparently destroyed, lost or stolen. In the case of any Certificate so
apparently destroyed, lost or stolen, the applicant for a substitute
Certificate shall furnish to the Owner Trustee and to the Indenture Trustee
such security or indemnity as may be required by them to indemnify and defend
and to hold each of them harmless and evidence to their satisfaction of the
apparent destruction, loss or theft of such Certificate and of the ownership
thereof.
Upon the issuance of any substitute Certificate, the Owner Trustee or
the Indenture Trustee may require payment from the Holder of a sum sufficient
to cover any tax or other governmental charge that may be imposed in relation
thereto and any other reasonable expenses incurred in connection therewith.
In case any Certificate which has matured or is about to mature, or has been
called for prepayment in full, shall become mutilated or defaced or be
apparently destroyed, lost or stolen, the Owner Trustee may, instead of
issuing a substitute Certificate, pay or authorize the payment of the same
(without surrender thereof except in the case of a mutilated or defaced
Certificate), if the applicant of any Certificate so apparently destroyed,
lost or stolen, for such payment shall furnish to the Owner Trustee and to the
Indenture Trustee such security or indemnity as any of them may require to
hold each of them harmless and the applicant shall also furnish to the Owner
Trustee and the Indenture Trustee evidence to their satisfaction of the
apparent destruction, loss or theft of such Certificate and of the ownership
thereof.
Every substitute Certificate issued pursuant to the provisions of
this Section by virtue of the fact that any Certificate is apparently
destroyed, lost or stolen shall constitute an original additional contractual
obligation of the Owner Trustee, whether or not the apparently destroyed, lost
or stolen Certificate shall be enforceable at any time by anyone and shall be
entitled to all the security and benefits of (but shall be subject to all the
limitations of rights set forth in) this Indenture equally and proportionately
with any and all other Certificates duly authenticated and delivered
hereunder. All Certificates shall be held and owned upon the express
condition that, to the extent permitted by law, the foregoing provisions are
exclusive with respect to the replacement or payment of mutilated, defaced, or
apparently destroyed, lost or stolen Certificates and shall preclude any and
all other rights or remedies notwithstanding any law or statute existing or
hereafter enacted to the contrary with respect to the replacement or payment
of negotiable instruments or other securities without their surrender.
Section 2.08. Cancellation of Certificates; Destruction Thereof. All
Certificates surrendered for payment, prepayment, registration of transfer or
exchange, if surrendered to the Owner Trustee or any agent of the Owner
Trustee or the Indenture Trustee, shall be delivered to the Indenture Trustee
for cancellation or, if surrendered to the Indenture Trustee, shall be
cancelled by it; and no Certificates shall be issued in lieu thereof except as
expressly permitted by any of the provisions of this Indenture. The Indenture
Trustee shall destroy cancelled Certificates held by it and deliver a
certificate of destruction to the Owner Trustee. If the Owner Trustee shall
acquire any of the Certificates, such acquisition shall not operate as a
prepayment or satisfaction of the indebtedness represented by such
Certificates unless and until the same are delivered to the Indenture Trustee
for cancellation.
Section 2.09. Temporary Certificates. Pending the preparation of
definitive Certificates, the Owner Trustee may execute and, upon the oral or
written request of an officer of SSB, the Indenture Trustee shall authenticate
and deliver temporary Certificates (printed, lithographed, typewritten or
otherwise reproduced, in each case in form satisfactory to the Indenture
Trustee). Temporary Certificates shall be issuable as registered Certificates
without coupons, of any authorized denomination, and substantially in the form
of the definitive Certificates but with such omissions, insertions and
variations as may be appropriate for temporary Certificates, all as may be
determined by the Owner Trustee with the concurrence of the Indenture Trustee.
Temporary Certificates may contain such reference to any provisions of this
Indenture as may be appropriate. Every temporary Certificate shall be
executed by the Owner Trustee and, upon the oral or written request of an
authorized officer of the Owner Trustee, be authenticated by the Indenture
Trustee upon the same conditions and in substantially the same manner, and
with like effect, as the definitive Certificates. Without unreasonable delay
the Owner Trustee shall execute and shall furnish definitive Certificates and
thereupon temporary Certificates shall be surrendered in exchange therefor
without charge at any office or agency to be maintained by the Indenture
Trustee for the purpose pursuant to Section 3.02 hereof, and, upon the oral
or written request of an authorized officer of the Owner Trustee, the
Indenture Trustee shall authenticate and deliver in exchange for such
temporary Certificates an equal aggregate principal amount of definitive
Certificates of the same Series and Maturities and interest rates and in
authorized denominations. Until so exchanged, temporary Certificates shall be
entitled to the same security and benefits under this Indenture as definitive
Certificates.
Section 2.10. Termination of Interest in Trust Indenture Estate. A
Holder shall not, as such, have any further interest in, or other right with
respect to, the Trust Indenture Estate when and if the principal amount of and
Make-Whole Premium, if any, and interest on and other amounts due under all
Certificates held by such Holder and all other sums payable to such Holder
hereunder and under the other Operative Agreements shall have been paid in
full.
Section 2.11. Certificates in Respect of Replacement Aircraft. Upon
the execution and delivery of an Indenture and Security Agreement Supplement
covering a Replacement Airframe and/or Replacement Engine, as provided in
Section 9.09 hereof, each Certificate shall be deemed to have been issued in
connection with such Replacement Airframe and/or Replacement Engine and each
Certificate issued thereafter upon a transfer or exchange of, or as a
replacement for, a Certificate, shall be designated as having been issued in
connection with such Replacement Airframe and/or Replacement Engine, but
without any other change therein except as provided for in this Article II.
Section 2.12. Assumption of Obligations Under Certificates and Other
Operative Agreements. If, in accordance with and subject to the satisfaction
of the conditions set forth in Section 7.11 of the Participation Agreement,
the Lessee shall assume all of the obligations of the Owner Trustee hereunder,
under the Certificates and all other Operative Agreements, the Owner
Participant and the Owner Trustee shall be released and discharged from any
further obligations hereunder and under the
Certificates and all other Operative Agreements (except for any recourse
obligations of the Owner Participant or the Owner Trustee in its individual
capacity with respect to matters arising out of events occurring prior to such
assumption).
Section 2.13. Establishment of Collateral Account. (a) The
Indenture Trustee shall, pursuant to the Collateral Account Control Agreement,
establish, or cause to be established, with State Street Bank and Trust
Company, who shall represent and warrant that it is a financial intermediary
(as defined in Section 8-313(4) of the Connecticut Uniform Commercial Code),
in its name as secured party hereunder an Eligible Deposit Account entitled
"First Security Bank, National Association, as secured party under the Trust
Indenture and Security Agreement (Federal Express Corporation Trust No.
N671FE) dated as of May 1, 1997, with the Owner Trustee referred to therein".
(b) If at any time the Collateral Account ceases to be an Eligible
Deposit Account, the Indenture Trustee shall within two (2) Business Days,
establish a new Collateral Account meeting the conditions specified in the
definition of Eligible Deposit Account, and shall transfer any cash or any
investments in the Collateral Account to such new Collateral Account.
(c) The Indenture Trustee shall have exclusive dominion and control
of the Collateral Account and all funds therein, and shall make withdrawals
from the Collateral Account only in accordance with this Indenture.
(d) The Collateral Account Control Agreement shall require State
Street Bank and Trust Company to send confirmation to the Indenture Trustee
and the Lessee that it has credited the Specified Investments to the
Collateral Account and to make appropriate entries on its books identifying
the Specified Investments as pledged to the Indenture Trustee.
Section 2.14. Investment of Funds on Deposit in the Collateral
Account. (a) Funds deposited in the Collateral Account shall be invested and
reinvested by the Indenture Trustee, subject to Section 17.02 of the
Participation Agreement, at the risk of the Owner Trustee, in Specified
Investments selected by the Lessee and approved by the Indenture Trustee for
the account of the Owner Trustee in accordance with Section 2.14(b) below;
provided, however, that if Specified Investments meeting the requirements of
Section 2.14(b) are not available on any day on which funds are to be invested
as contemplated by the preceding provisions of this Section 2.14(a), the
Indenture Trustee may leave such funds in the Collateral Account uninvested
until the earliest of (i) the date on which an appropriate Specified
Investment becomes available, (ii) the Delivery Date and (iii) the Cut-Off
Date. The Indenture Trustee shall maintain possession of the negotiable
instruments or securities, if any, evidencing such Specified Investments and,
in the case of any Specified Investments in book-entry form, such Specified
Investments shall be credited to an account of the Indenture Trustee or a
financial intermediary with the applicable Federal Reserve Bank; provided,
however, if the account is credited to the financial intermediary, the
financial intermediary shall make written confirmation thereof to the
Indenture Trustee and make an appropriate entry on its books identifying the
Specified Investments as pledged to the Indenture Trustee. All proceeds of
and any income, interest and other payments and distributions on or with
respect to any Specified Investments shall be deposited in or credited to the
Collateral Account and thereafter shall be held, invested and applied by the
Indenture Trustee in accordance with this Indenture. The Indenture Trustee
shall promptly notify the Owner Trustee and the Lessee of any Losses.
(b) On the Certificate Closing Date, the Indenture Trustee shall
invest the amount deposited in the Collateral Account pursuant to Section
2.01(c) of the Participation Agreement in Specified Investments selected by
the Lessee and approved by the Indenture Trustee for the account of the Owner
Trustee which mature on or prior to June 20, 1997. If the Delivery Date is
postponed pursuant to Section 3.02(c) or Section 3.05 of the Participation
Agreement, the proceeds of the Specified Investments referred to in the
preceding sentence may be invested in Specified Investments which mature
within 14 days after the rescheduled Delivery Date. If no Delivery Date
occurs, then any Specified Investment shall mature no later than the 15th day
after the Cut-Off Date.
(c) If for any reason the Indenture Trustee shall be required to
make any distributions of the Liquid Collateral prior to the maturity date of
any Specified Investment, the Indenture Trustee shall cause the same to be
sold in accordance with standard commercial practices, and the Lessee, for the
account of the Owner Trustee, shall forthwith compensate the Indenture Trustee
for any Losses as provided in Section 17.02(a) of the Participation Agreement.
(d) Pursuant to Section 17.02(b) of the Participation Agreement,
interest payable on the Certificates during the period in which funds are on
deposit in the Collateral Account shall be paid by the Lessee.
Section 2.15. Release of Debt Portion and Lien on the Collateral
Account and the Liquid Collateral on Delivery Date. (a) Subject to the
satisfaction or waiver of the conditions precedent to the Indenture Trustee's
obligations set forth in Section 4.02 of the Participation Agreement, on the
Delivery Date, subject to the proviso to Section 3.02(a) of the Participation
Agreement, the Indenture Trustee shall release from the Collateral Account an
amount of Liquid Collateral, equal to the lesser of (A) the Debt Portion and
(B) the amount actually in the Collateral Account on the Delivery Date.
Subject to the proviso to Section 3.02(a) of the Participation Agreement, such
amount so released, together with the amount of any Losses received from the
Lessee pursuant to Section 17.02(a) of the Participation Agreement, shall be
used to finance a portion of the Purchase Price payable by (x) the Owner
Trustee as contemplated by Section 3.02(a) of the Participation Agreement or
(y) if the fifth sentence of Section 3.05(a) of the Participation Agreement
shall be applicable, by the Lessee as contemplated by such sentence. Any
amount remaining in the Collateral Account after such release (net of any
uncompensated Losses) shall be remitted by the Indenture Trustee on behalf of
the Owner Trustee to the Lessee pursuant to Section 3.02(a)(C) of the
Participation Agreement.
(b) The Lien of this Indenture on the Collateral Account and the
Liquid Collateral shall terminate on the Delivery Date following the transfer
of amounts described in Section 3.02(a) of the Participation Agreement.
Section 2.16. Cut-Off Date. In the case of a prepayment under
Section 6.02(a)(vi) hereof, the Indenture Trustee shall release from the
Collateral Account all amounts held in the Collateral Account on such date.
Such amount so released, together with the amount of any Losses received from
the Lessee pursuant to Sections 17.02(a) and 17.02(c) of the Participation
Agreement, shall be applied to pay amounts due under Section 6.02(b)(1) hereof
on the 15th day following the Cut-Off Date, and any amount (net of any
uncompensated Losses) remaining after such release and application shall be
remitted by the Indenture Trustee, on behalf of the Owner Trustee, to the
Lessee.
Section 2.17. Subordination. (a) The Owner Trustee and, by
acceptance of its Certificates of any Series, each Holder of such Series,
hereby agree that no payment or distribution shall be made on or in respect of
the Secured Obligations owed to such Certificate Holder of such Series,
including any payment or distribution of cash, property or securities after
the commencement of a proceeding of the type referred to in clause (v), (vi)
or (vii) of Section 7.01 hereof, except as expressly provided in Article V
hereof.
(b) By the acceptance of its Certificates of any Series
(other than Series A), each Holder of such Series agrees that in the event
that such Holder, in its capacity as a Holder, shall receive any payment or
distribution on any Secured Obligations in respect of such Series which it is
not entitled to received under this Section 2.17 or Article V hereof, it will
hold any amount so received in trust for the Senior Holder (as defined in
Section 2.17(c) hereof) and will forthwith turn over such payment to the
Indenture Trustee in the form received to be applied as provided in Article V
hereof.
(c) As used in this Section 2.17, the term "Senior Holder"
shall mean, (i) the Holders of Series A Certificates until the Secured
Obligations in respect of Series A Certificates have been paid in full, (ii)
after the Secured Obligations in respect of Series A Certificates have been
paid in full, the Holders of Series B Certificates until the Secured
Obligations in respect of Series B Certificates have been paid in full and
(iii) after the Secured Obligations in respect of Series B Certificates have
been paid in full, the Holders of Series C Certificates until the Secured
Obligations in respect of Series C Certificates have been paid in full.
ARTICLE III
COVENANTS
Section 3.01. Payment of Principal, Make-Whole Premium and Interest.
The Owner Trustee covenants and agrees that it will, subject to Section 2.05
hereof, duly and punctually pay or cause to be paid the principal of, and
interest and Make-Whole Premium, if any, and all other amounts due on, each of
the Certificates and under this Indenture at the place or places, at the
respective times and in the manner provided in this Indenture and in the
Certificates.
Principal and interest and other amounts due hereunder or under the
Certificates shall be payable in dollars on the due date thereof, to the
Indenture Trustee at the Corporate Trust Department (or such other account at
such other financial institution as the Indenture Trustee may designate for
the purpose). If any amount payable under the Certificates or under this
Indenture falls due on a day which is not a Business Day, then such sum shall
be payable on the next succeeding Business Day, without (provided that payment
is made on such next succeeding Business Day) additional interest thereon for
the period of such extension.
Section 3.02. Offices for Payments, etc. So long as any of the
Certificates remain outstanding, the Indenture Trustee will maintain the
following: (a) an office or agency where the Certificates may be presented
for payment and (b) a facility or agency in New York, New York where the
Certificates may be presented for registration of transfer and for exchange
and for prepayment as provided in this Indenture (the "Registrar"). The
Registrar shall keep a register (the "Register") with respect to the
Certificates and their transfer and exchange. The Indenture Trustee may
appoint one or more co-registrars ("Co-Registrars") for the Certificates and
may terminate any such appointment at any time upon written notice. The term
"Registrar" includes any Co-Registrar.
The Indenture Trustee shall initially act as Registrar.
Section 3.03. Appointment to Fill a Vacancy in Office of Indenture
Trustee. The Owner Trustee, whenever necessary to avoid or fill a vacancy in
the office of Indenture Trustee, will, with the consent of the Lessee,
appoint, in the manner provided in Section 12.02 hereof, an Indenture Trustee,
so that there shall at all times be an Indenture Trustee hereunder.
Section 3.04. Paying Agents. Whenever the Indenture Trustee in its
sole discretion shall appoint a paying agent (the "Paying Agent"), it will
cause the Paying Agent to execute and deliver an instrument in which the
Paying Agent shall agree with the Indenture Trustee, subject to the provisions
of this Section:
(a) that it will hold all sums received by it as such agent for the
payment of the principal of, and interest and Make-Whole Premium, if any,
on the Certificates (whether such sums have been paid to it by the
Indenture Trustee or the Owner Trustee) in trust for the benefit of the
Holders or of the Indenture Trustee, and
(b) that it will give the Indenture Trustee notice of any failure by
the Owner Trustee to make any payment of the principal of or interest or
Make-Whole Premium, if any, on the Certificates when the same shall be due
and payable.
Anything in this Section to the contrary notwithstanding, the
agreements to hold sums in trust as provided in this Section are subject to
the provisions of Sections 14.03 and 14.04 hereof.
Section 3.05. Covenants of SSB and the Owner Trustee.
(a) SSB hereby covenants and agrees to perform its covenants set
forth in Sections 7.04(b) and 7.04(c) of the Participation Agreement.
(b) The Owner Trustee hereby covenants and agrees as follows:
(i) in the event a Responsible Officer of the Owner Trustee shall have
actual knowledge of an Indenture Event of Default, an Indenture Default or
an Event of Loss, the Owner Trustee will give prompt written notice of such
Indenture Event of Default, Indenture Default or Event of Loss to the
Indenture Trustee, the Lessee and the Owner Participant;
(ii) the Owner Trustee will furnish to the Indenture Trustee,
promptly upon receipt thereof, duplicates or copies of all reports,
notices, requests, demands, certificates, financial statements and other
instruments furnished to the Owner Trustee under the Lease, including,
without limitation, a copy of each report or notice from an insurer or an
insurance broker received pursuant to Article 13 of the Lease, to the
extent that the same shall not have been furnished to the Indenture Trustee;
(iii) the Owner Trustee will not enter into any business or other
activity other than the business of owning the Aircraft, the leasing
thereof to the Lessee and the carrying out of the transactions contemplated
hereby and by the Lease, the Participation Agreement, the Trust Agreement
and the other Indenture Documents; and
(iv) except as contemplated by the Operative Agreements, the Owner
Trustee will not contract for, create, incur or assume any debt, and will
not guarantee (directly or indirectly or by an instrument having the effect
of assuring another's payment or performance on any obligation or
capability of so doing, or otherwise), endorse or otherwise take action to
become contingently liable, directly or indirectly, in connection with the
debt of any other Person.
Section 3.06. [Reserved]
Section 3.07. Disposal of Trust Indenture Estate. At any time and
from time to time any part of the Trust Indenture Estate may be sold or
disposed of in accordance with the provisions of this Indenture and the Lease.
The Indenture Trustee shall, from time to time, release any part of the Trust
Indenture Estate so sold or disposed of or as to which an Event of Loss has
occurred or as to which the Lease has been terminated from the Lien of this
Indenture. In addition, to the extent that such property constitutes an
Airframe or Engine, the further requirements of Section 9.08 hereof shall be
complied with.
Section 3.08. No Representations or Warranties as to Aircraft or
Documents. NEITHER THE INDENTURE TRUSTEE NOR THE OWNER TRUSTEE NOR SSB NOR
THE OWNER PARTICIPANT MAKES OR SHALL BE DEEMED TO HAVE MADE ANY REPRESENTATION
OR WARRANTY, EXPRESS OR IMPLIED, AS TO THE TITLE, AIRWORTHINESS, WORKMANSHIP,
VALUE, CONDITION, DESIGN, COMPLIANCE WITH SPECIFICATIONS, MERCHANTABILITY OR
FITNESS FOR ANY PARTICULAR USE OR PURPOSE OF THE AIRCRAFT OR ANY ENGINE, AS TO
THE ABSENCE OF ANY INFRINGEMENT OF ANY PATENT, TRADEMARK OR COPYRIGHT, AS TO
THE ABSENCE OF OBLIGATIONS BASED ON STRICT LIABILITY IN TORT OR ANY OTHER
REPRESENTATION OR WARRANTY WITH RESPECT TO THE AIRCRAFT OR ANY ENGINE
WHATSOEVER, except that SSB warrants that on the Delivery Date (a) the Owner
Trustee shall have received whatever title was conveyed to it by AVSA, and (b)
the Aircraft shall be free and clear of Lessor's Liens attributable to SSB.
Neither SSB, the Indenture Trustee nor the Owner Participant makes or shall be
deemed to have made any representation or warranty as to the validity,
legality or enforceability of this Indenture, the Trust Agreement, the
Certificates or any Indenture Document or as to the correctness of any
statement contained in any thereof, except for the representations and
warranties of SSB and the Indenture Trustee made under this Indenture or in
the Participation Agreement or of the Owner Participant made under the
Participation Agreement.
Section 3.09. Further Assurances; Financing Statements. At any time
and from time to time, upon the request of the Indenture Trustee or the
Lessee, at the expense of the Lessee, the Owner Trustee shall promptly and
duly execute and deliver any and all such further instruments and documents as
may be specified in such request and as are necessary or advisable to perfect,
preserve or protect the Liens and assignments created or intended to be
created hereby, or to obtain for the Indenture Trustee the full benefit of the
specific rights and powers granted herein, including, without limitation, the
execution and delivery of Uniform Commercial Code financing statements and
continuation statements with respect thereto, or similar instruments relating
to the perfection of the Liens or assignments created or intended to be created
hereby.
ARTICLE IV
HOLDER LISTS
Section 4.01. Holder Lists; Ownership of Certificates. (a) The
Indenture Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
the Holders. If the Indenture Trustee is not the Registrar, the Registrar
shall furnish to the Indenture Trustee semi-annually not more than ten (10)
days after each Record Date, as of such Record Date, or at such other times as
the Indenture Trustee may request in writing, a list, in such form and as of
such date as the Indenture Trustee may reasonably require, containing all the
information in the possession or control of the Registrar as to the names and
addresses of the Holders and the amounts and Maturities of the Certificates
held by such Holders.
(b) Ownership of the Certificates shall be proved by the Register
kept by the Registrar.
ARTICLE V
RECEIPT, DISTRIBUTION AND APPLICATION OF
INCOME FROM THE TRUST INDENTURE ESTATE
Section 5.01. Basic Rent Distribution. Except as otherwise provided
in Section 5.03 hereof, each installment of Basic Rent, any payment of
interest on overdue installments of Basic Rent, any payment received by the
Indenture Trustee pursuant to Section 8.03(a) hereof and any payment received
by the Indenture Trustee pursuant to Section 17.02(b) or 17.02(c) of the
Participation Agreement shall be distributed by the Indenture Trustee no later
than the time herein provided in the following order of priority:
first, (i) so much of such installment or payment as shall be
required to pay in full the aggregate amount of the payment or
payments of Principal Amount and interest and other amounts (as
well as any interest on any overdue Principal Amount and, to the
extent permitted by applicable law, on any overdue interest and
any other overdue amounts) then due under all Series A
Certificates shall be distributed to the Holders of Series A
Certificates ratably, without priority of one over the other, in
the proportion that the amount of such payment or payments then
due under each Series A Certificate bears to the aggregate amount
of the payments then due under all Series A Certificates;
(ii) after giving effect to paragraph (i) above, so much of
such installment or payment as shall be required to pay in full
the aggregate amount of the payment or payments of Principal
Amount and interest and other amounts (as well as any interest on
any overdue Principal Amount and, to the extent permitted by
applicable law, on any overdue interest and any other overdue
amounts) then due under all Series B Certificates shall be
distributed to the Holders of Series B Certificates ratably,
without priority of one over the other, in the proportion that the
amount of such payment or payments then due under each Series B
Certificate bears to the aggregate amount of the payments then due
under all Series B Certificates; and
(iii) after giving effect to paragraph (ii) above, so much of
such installment or payment as shall be required to pay in full
the aggregate amount of the payment or payments of Principal
Amount and interest and other amounts (as well as any interest on
any overdue Principal Amount and, to the extent permitted by
applicable law, on any overdue interest and any other overdue
amounts) then due under all Series C Certificates shall be
distributed to the Holders of Series C Certificates ratably,
without priority of one over the other, in the proportion that the
amount of such payment or payments then due under each Series C
Certificate bears to the aggregate amount of the payments then due
under all Series C Certificates; and
second, the balance if any of such installment or payment remaining
thereafter shall be distributed to the Owner Trustee, or as the
Owner Trustee may request, for distribution pursuant to the Trust
Agreement.
Section 5.02. Event of Loss and Replacement; Prepayment. (a)
Except as otherwise provided in Section 5.03 hereof, any payment received by
the Indenture Trustee as the result of an Event of Loss with respect to the
Aircraft (including pursuant to Section 11.03(e) of the Lease, but, in the
case of said Section 11.03(e), subject to the time limits specified therein)
or as the result of, or in connection with any event under the Lease giving
rise to, a prepayment pursuant to Section 6.02 hereof, shall be promptly
distributed by the Indenture Trustee in the following order of priority:
first, to reimburse the Indenture Trustee for any costs or expenses
reasonably incurred in connection with such prepayment,
second, (i) to pay the amounts specified in paragraph (i) of clause
"second" of Section 5.03 hereof then due and payable in respect
of the Series A Certificates;
(ii) after giving effect to paragraph (i) above, to pay the
amounts specified in paragraph (ii) of clause "second" of Section
5.03 hereof then due and payable in respect of the Series B
Certificates; and
(iii) after giving effect to paragraph (ii) above, to pay the
amounts specified in paragraph (iii) of clause "second" of
Section 5.03 hereof then due and payable in respect of the Series
C Certificates;
provided that payments pursuant to this clause "second" shall be
made without the payment of Make-Whole Premium except in the
particular circumstances provided in Section 6.02(b) hereof; and
third, as provided in clause "third" of Section 5.03 hereof;
provided that if a Replacement Airframe shall be substituted for an Airframe
subject to an Event of Loss as provided in Section 11.03 of the Lease and
Section 9.08 hereof, any proceeds which result from such Event of Loss and are
paid to the Indenture Trustee shall be held by the Indenture Trustee as part
of the Trust Indenture Estate and, unless otherwise applied pursuant to
Section 5.01 or 5.03 hereof, such proceeds shall be released to the Lessee
upon the release of such damaged Airframe and the replacement thereof as
herein provided.
(b) Any amounts received directly or indirectly from any governmental
authority, insurer or other party pursuant to any provision of Article 11 or
13 of the Lease as the result of loss or damage not constituting an Event of
Loss (x) with respect to the Aircraft, or as a result of such loss or damage
constituting an Event of Loss if and to the extent that such amounts would at
the time be required to be paid to the Lessee pursuant to said Article 11 or
13 but for the fact that a Payment Default, Bankruptcy Default or an Event of
Default shall have occurred and be continuing or (y) are pledged to the Lessor
as security in connection with an Event of Loss in accordance with Section
11.03(e) of the Lease, shall be held by the Indenture Trustee as security for
the obligations of the Lessee under the Lease and the Participation Agreement
and shall be invested in accordance with the terms of Section 5.08 hereof and
at such time as the conditions for payment to the Lessee specified in said
Article 11 or 13, as the case may be, shall be fulfilled and there shall not
be continuing any Payment Default, Bankruptcy Default or Event of Default,
such amount, and the proceeds of any investment thereof, shall, to the extent
not theretofore applied, be paid to the Lessee to the extent provided in the
Lease.
Section 5.03. Payment After Indenture Event of Default, etc. Except
as otherwise provided in Sections 5.02(b), 5.04(b), 5.04(c) and 5.05 hereof,
all payments (other than Excepted Payments) received and all amounts held or
realized by the Indenture Trustee after an Indenture Event of Default shall
have occurred and so long as such an Indenture Event of Default shall be
continuing, and after the Certificates shall have become due and payable as
provided in Section 7.02(b) or (c) hereof, shall be promptly distributed by
the Indenture Trustee in the following order of priority:
first, so much of such payments or amounts as shall be required to
reimburse the Indenture Trustee for any tax, expense, charge or
other loss (including, without limitation, all amounts to be
expended at the expense of, or charged upon the tolls, rents,
revenues, issues, products and profits of, the property included
in the Trust Indenture Estate pursuant to Section 7.03(b) hereof)
incurred by the Indenture Trustee (to the extent not previously
reimbursed) (including, without limitation, the expenses of any
sale, taking or other proceeding, attorneys' fees and expenses,
court costs, and any other expenditures incurred or expenditures
or advances made by the Indenture Trustee or the Holders in the
protection, exercise or enforcement of any right, power or remedy
or any damages sustained by the Indenture Trustee or the Holders,
liquidated or otherwise, upon such Indenture Event of Default)
shall be applied by the Indenture Trustee as between itself and
the Holders in reimbursement of such expenses;
second, (i) so much of such payments or amounts remaining as shall be
required to pay in full the aggregate unpaid Principal Amount of
all Series A Certificates, and the accrued but unpaid interest
and other amounts due thereon and all other Secured Obligations
(other than Make-Whole Premium) in respect of the Series A
Certificates to the date of distribution, shall be distributed to
the Holders of Series A Certificates, and in case the aggregate
amount so to be distributed shall be insufficient to pay in full
as aforesaid, then ratably, without priority of one over the
other, in the proportion that the aggregate unpaid Principal
Amount of all Series A Certificates held by each holder plus the
accrued but unpaid interest and other amounts due hereunder or
thereunder (other than Make-Whole Premium) to the date of
distribution, bears to the aggregate unpaid Principal Amount of
all Series A Certificates held by all such holders plus the
accrued but unpaid interest and other amounts due thereon (other
than Make-Whole Premium) to the date of distribution;
(ii) after giving effect to paragraph (i) above, so much of
such payments or amounts remaining as shall be required to pay in
full the aggregate unpaid Principal Amount of all Series B
Certificates, and the accrued but unpaid interest and other
amounts due thereon and all other Secured Obligations (other than
Make-Whole Premium) in respect of the Series B Certificates to
the date of distribution, shall be distributed to the Holders of
Series B Certificates, and in case the aggregate amount so to be
distributed shall be insufficient to pay in full as aforesaid,
then ratably, without priority of one over the other, in the
proportion that the aggregate unpaid Principal Amount of all
Series B Certificates held by each holder plus the accrued but
unpaid interest and other amounts due hereunder or thereunder
(other than Make-Whole Premium) to the date of distribution,
bears to the aggregate unpaid Principal Amount of all Series B
Certificates held by all such holders plus the accrued but unpaid
interest and other amounts due thereon (other than Make-Whole
Premium) to the date of distribution; and
(iii) after giving effect to paragraph (ii) above, so much of
such payments or amounts remaining as shall be required to pay in
full the aggregate unpaid Principal Amount of all Series C
Certificates, and the accrued but unpaid interest and other
amounts due thereon and all other Secured Obligations (other than
Make-Whole Premium) in respect of the Series C Certificates to
the date of distribution, shall be distributed to the Holders of
Series C Certificates, and in case the aggregate amount so to be
distributed shall be insufficient to pay in full as aforesaid,
then ratably, without priority of one over the other, in the
proportion that the aggregate unpaid Principal Amount of all
Series C Certificates held by each holder plus the accrued but
unpaid interest and other amounts due hereunder or thereunder
(other than Make-Whole Premium) to the date of distribution,
bears to the aggregate unpaid Principal Amount of all Series C
Certificates held by all such holders plus the accrued but unpaid
interest and other amounts due thereon (other than Make-Whole
Premium) to the date of distribution;
(it being understood that amounts payable under this clause
"second" shall not include Make-Whole Premium); and
third, the balance, if any of such payments or amounts remaining
thereafter shall be distributed to the Owner Trustee for
distribution pursuant to the Trust Agreement.
Section 5.04. Certain Payments. (a) Except as otherwise provided
in this Indenture, any payments received by the Indenture Trustee which are to
be applied according to any provision in any other Indenture Document shall be
applied thereunder in accordance therewith.
(b) The Indenture Trustee will distribute, promptly upon receipt, any
indemnity or other payment received by it from the Owner Trustee or the Lessee
in respect of (i) the Indenture Trustee in its individual capacity, (ii) the
Subordination Agent, (iii) each Liquidity Provider, and (iv) the Pass Through
Trustee, in each case whether pursuant to Article 8 or 9 of the Participation
Agreement or as Supplemental Rent, directly to the Person (which may include
the Indenture Trustee) entitled thereto. Any payment received by the
Indenture Trustee under clause (b) of the last paragraph of Section 2.04 shall
be distributed to the Subordination Agent to be distributed in accordance with
the terms of the Intercreditor Agreement.
(c) Notwithstanding anything to the contrary contained herein, any
sums received by the Indenture Trustee which constitute Excepted Payments
shall be distributed promptly upon receipt by the Indenture Trustee directly
to the Person or Persons entitled thereto.
Section 5.05. Other Payments. Any payments received by the Indenture
Trustee for which no provision as to the application thereof is made elsewhere
in this Indenture or in any other Indenture Document (including without
limitation Article 9 of the Lease) shall be distributed by the Indenture
Trustee (a) to the extent received or realized at any time prior to the
payment in full of all obligations to the Holders, in the order of priority
specified in Section 5.01 hereof, and (b) to the extent received or realized
at any time after payment in full of all obligations to the Holders, in the
following order of priority:
first, in the manner provided in clause "first" of Section 5.03 hereof
and
second, in the manner provided in clause "third" of Section 5.03 hereof.
Section 5.06. Payments to Owner Trustee. Any amounts distributed
hereunder by the Indenture Trustee to the Owner Trustee shall be paid to the
Owner Trustee by wire transfer of immediately available funds of the type
received by the Indenture Trustee at such office and to such account or
accounts of such entity or entities as shall be designated by notice from the
Owner Trustee to the Indenture Trustee from time to time. The Owner Trustee
hereby notifies the Indenture Trustee that unless and until the Indenture
Trustee receives notice to the contrary from the Owner Trustee, all amounts to
be distributed to the Owner Trustee hereunder for distribution in accordance
with the Trust Agreement shall be distributed by wire transfer of immediately
available funds of the type received by the Indenture Trustee to such account
of the Owner Participant as may be specified pursuant to Section 2.06 of the
Trust Agreement.
Section 5.07. Application of Payments. Each payment of principal of
and interest or other amounts due on each Certificate shall, except as
otherwise provided herein, be applied,
first, to the payment of interest on such Certificate due and payable to
the date of such payment, as provided in such Certificate, as
well as any interest on overdue principal and Make-Whole Premium,
if any, and, to the extent permitted by law, interest and other
amounts due thereunder,
second, to the payment of any other amount (other than the principal of
such Certificate) due hereunder to the Holder of such Certificate
or under such Certificate,
third, to the payment of the principal of such Certificate if then due
hereunder or under such Certificate and
fourth, the balance, if any remaining thereafter, to the payment of the
principal of such Certificate remaining unpaid (provided that
such Certificate shall not be subject to prepayment without the
consent of the affected Holder except as permitted by Sections
6.02, 6.06 and 8.02 hereof); provided that, solely for the
purpose of determining whether an Indenture Event of Default
shall have occurred and be continuing, each such payment shall be
deemed applied in the following order of priority: first, in the
manner provided in clause "first" above, second, in the manner
provided in clause "third" above, third, in the manner provided
in clause "second" above and fourth, in the manner provided in
clause "fourth" above.
Section 5.08. Investment of Amounts Held by Indenture Trustee.
Amounts held by the Indenture Trustee pursuant to Section 5.02(b) hereof or
pursuant to any provision of any Indenture Document providing for investment
by the Indenture Trustee of sums pursuant to Section 23.01 of the Lease or
this Section 5.08 shall be invested by the Indenture Trustee from time to time
in securities selected by (i) so long as no Event of Default shall have
occurred and be continuing, the Lessee (and in the absence of written
direction by the Lessee, the Indenture Trustee shall invest such monies in
direct obligations of the United States of America) or (ii) so long as an
Event of Default shall have occurred and be continuing, the Indenture Trustee
and in each case shall be of the type listed in clauses (i) through (iv) of
Section 23.01 of the Lease. Unless otherwise expressly provided in this
Indenture, any income realized as a result of any such investment, net of the
Indenture Trustee's reasonable fees and expenses in making such investment,
shall be held and applied by the Indenture Trustee in the same manner as the
principal amount of such investment is to be applied and any losses, net of
earnings and such reasonable fees and expenses, shall be charged against the
principal amount invested. The Lessee shall be responsible for and will
promptly pay to the Indenture Trustee or the Lessor, as the case may be, on
demand, the amount of any loss realized as the result of any such investment
(together with any fees, commissions and other costs and expenses, if any,
incurred by the Indenture Trustee or the Lessor in connection with such
investment), such amount to be disposed of in accordance with the terms hereof
or the Lease, as the case may be. The Indenture Trustee shall not be liable
for any loss resulting from any investment made by it or any investment sold
by it under this Indenture in accordance with instructions from the Lessee
other than by reason of its willful misconduct or gross negligence, and any
such investment may be sold (without regard to its maturity) by the Indenture
Trustee without instructions whenever the Indenture Trustee reasonably
believes such sale is necessary to make a distribution required by this
Indenture.
Unless otherwise confirmed in writing, an account statement delivered
by the Indenture Trustee to the Owner Trustee (with a copy to the Lessee)
shall be deemed written confirmation by the Owner Trustee that the investment
transactions identified therein accurately reflect the investment directions
given to the Indenture Trustee by or on behalf of the Lessee, unless the
Lessee notifies the Indenture Trustee in writing to the contrary within 30
days of the date of receipt of such statement.
Section 5.09. Withholding Taxes. The Indenture Trustee shall
withhold any Taxes required to be withheld, except to the extent that the
Holder has furnished evidence satisfactory to the Indenture Trustee of any
exemption from withholding claimed by such Holder and under no circumstances
shall the failure of any such Holder to receive any amounts so withheld
constitute an Indenture Event of Default. Notwithstanding any provision to
the contrary in Sections 5.01 through 5.05 hereof and subject to Article 8 of
the Participation Agreement, if the Lessee is required to pay any such Tax, or
any interest or penalty thereon, or to indemnify the Owner Participant or the
Owner Trustee with respect thereto pursuant to Section 8.01(c) of the
Participation Agreement, the Lessee shall be entitled to receive any payments
otherwise distributable to the Holder of any Certificate who was subject to
such Tax pursuant to Sections 5.01 to 5.05 hereof until the amounts the Lessee
shall have so paid in respect of any such Tax shall have been recovered in
full by the Lessee.
ARTICLE VI
PREPAYMENT OF CERTIFICATES
Section 6.01. No Prepayment Prior to Maturity. Except as provided
in Sections 6.02, 6.06 and 8.02 hereof, the Certificates may not be prepaid
prior to their respective Maturities.
Section 6.02. Prepayment of Certificates. (a) The Outstanding
Certificates shall be prepaid in full (and not in part):
(i) If an Event of Loss occurs with respect to the Airframe or with
respect to the Airframe and the Engines or engines then installed on the
Airframe (unless pursuant to Section 11.03 of the Lease and Section 9.08
hereof replacement equipment is substituted therefor).
(ii) If the Lessee, pursuant to Section 4.02(a) of the Lease, gives
notice of purchase of the Aircraft (and Section 2.12 hereof shall not be
applicable in connection with such purchase), but subject to Section
6.02(c) below.
(iii) If the Owner Participant or the Owner Trustee on behalf of the
Owner Participant gives notice of prepayment to the Indenture Trustee
pursuant to Section 8.02 hereof (unless such notice is revoked in
accordance with such Section).
(iv) If the Lessee, pursuant to Section 10.01 of the Lease, gives
notice of a voluntary termination for obsolescence or surplus, but subject
to Section 6.02(c) below.
(v) Pursuant to Section 15.01 of the Participation Agreement in
connection with a refinancing of the Certificates, but subject to Section
6.02(c) below.
(vi) As contemplated by Section 2.16 hereof and Section 3.05(b) of the
Participation Agreement if the Delivery Date has not occurred on or prior
to the Cut-Off Date.
(vii) At the option of the Owner Trustee with the prior written
consent of the Lessee and the Owner Participant upon not less than 25 days'
prior written notice.
(b) In the event of a prepayment of the Certificates pursuant to
Sections 6.02(a)(ii), (iv) and (v) above, the Owner Trustee, having received
notice from the Lessee in accordance with and subject to the terms of Section
4.02(a) or 10.01 of the Lease or Article 15 of the Participation Agreement, as
the case may be, shall give irrevocable (subject to Section 6.02(c) hereof)
written notice to the Indenture Trustee and to the Holders of all of the
Certificates specifying the Business Day on which the Certificates shall be
prepaid. In the case of a prepayment of the Certificates pursuant to Section
6.02(a)(i) above, the Certificates shall be prepaid in full on the Loss
Payment Date as defined in Section 11.02 of the Lease. In the case of a
prepayment of the Certificates pursuant to Section 6.02(a)(iii) above, the
Certificates shall be prepaid in full on the date so designated in the notice
referred to in Section 8.02 hereof. In the case of a prepayment of the
Certificates pursuant to Section 6.02(a)(ii) or (iv) above, the Certificates
shall be prepaid in full on the Termination Date. In the case of a prepayment
of the Certificates pursuant to Section 6.02(a)(v) above, the Certificates
shall be prepaid on the effective date of the Refinancing. In the case of a
prepayment of the Certificates pursuant to Section 6.02(a)(vi) above, the
Certificates shall be prepaid on the 15th day following the Cut-Off Date. In
the case of a prepayment of the Certificates pursuant to Section 6.02(a)(vii)
above, the Certificates shall be prepaid on the date designated in the notice
referred to therein. The day on which the Certificates are to be prepaid
pursuant to this Section 6.01(b) is herein referred to as the "Prepayment
Date".
On or prior to the Prepayment Date, immediately available funds shall
be deposited with the Indenture Trustee in an amount in respect of the
Certificates equal to:
(1) (i) if such prepayment is made under any provision of Section 6.02
hereof on or after the applicable Premium Termination Date, or (ii) if such
prepayment is made prior to the applicable Premium Termination Date
pursuant to Section 6.02(a)(i), 6.02(a)(iii) (if clause (i) of the first
sentence of Section 8.02(a) hereof is applicable) or 6.02(a)(vi) above, the
sum of (A) the aggregate principal amount of such Certificates then
Outstanding, (B) accrued interest on the Certificates to the Prepayment
Date and (C) all other aggregate sums due the Indenture Trustee hereunder
or under the Participation Agreement or the Lease, but excluding any
Make-Whole Premium or other premium or penalty, or
(2) if such prepayment is made prior to the applicable Premium
Termination Date pursuant to Section 6.02(a)(ii), 6.02(a)(iii) (if clause
(ii) of the first sentence of Section 8.02(a) hereof is applicable),
6.02(a)(iv), 6.02(a)(v) or 6.02(a)(vii) above, the sum of the amounts
specified in clauses (A), (B) and (C) of the preceding clause (1) plus any
Make-Whole Premium payable in respect of all Certificates with respect to
which the Premium Termination Date therefor has not occurred
(the aggregate amount required to be paid pursuant to this sentence being
herein referred to as the "Prepayment Price").
(c) If, pursuant to the last paragraph of Section 10.01(f) of the
Lease, no Termination Date shall occur, or if, pursuant to Section 4.02(a) of
the Lease, the Lessee revokes its notice of election to purchase, or if no
refinancing shall occur pursuant to Section 15.01 of the Participation
Agreement, the Lessee shall give notice thereof to the Indenture Trustee, and
the prepayment proposed to be effected in respect thereof shall not occur.
Section 6.03. Notice of Prepayment to Holders. In order to effect
any prepayment set forth in Section 6.02(a) hereof, the Indenture Trustee
shall give prompt notice by first class mail of prepayment to each Holder of
an Outstanding Certificate. Any notice of prepayment given by the Owner
Trustee may be revoked by the Owner Trustee at any time on or before the
Prepayment Date by prompt notice to the Holders except as otherwise provided
in the Lease or the Participation Agreement.
All notices of prepayment shall state:
(1) the Prepayment Date,
(2) the applicable basis for determining the Prepayment Price,
(3) that on the Prepayment Date, subject to the provisions hereof,
the Prepayment Price will become due and payable, and that interest
on the Certificates shall cease to accrue on and after such
Prepayment Date, and
(4) the place or places where such Certificates are to be
surrendered for payment.
Section 6.04. Deposit of Prepayment Price and Sinking Fund Redemption
Price. On the Prepayment Date or the Sinking Fund Redemption Date (as defined
in Section 6.06 hereof), the Owner Trustee shall, to the extent an amount
equal to the Prepayment Price or the Sinking Fund Redemption Price (as defined
in Section 6.06 hereof), as the case may be, shall not then be held in cash or
Permitted Investments (marked-to-market net of all costs and expenses of
liquidation thereof) by the Indenture Trustee in immediately available funds
and deposited for the purpose, pay to the Indenture Trustee an amount equal to
the difference between (a) the amount then so held and (b) the Prepayment
Price or the Sinking Fund Redemption Price, as the case may be. If there
shall so be on deposit and/or deposited the applicable Prepayment Price or
Sinking Fund Redemption Price on or prior to a Prepayment Date or Sinking Fund
Redemption Date, interest shall cease to accrue in respect of all or, in the
case of a mandatory sinking fund redemption, the relevant portion being
prepaid of, the Outstanding Certificates on and after such Prepayment Date or
such Sinking Fund Redemption Date.
Section 6.05. Certificates Payable on Prepayment Date. On the
Prepayment Date, the Outstanding Certificates shall (except (A) if the Owner
Trustee has requested the Indenture Trustee to revoke such notice of
prepayment in accordance with Section 6.03 hereof or (B) as otherwise provided
in the Lease) become due and payable and from and after such Prepayment Date
(unless there shall be a default in the payment of the Prepayment Price) such
Certificates shall cease to bear interest. Upon surrender by any Holder of
its Certificate for prepayment in accordance with said notice, such Holder
shall be paid the principal amount of its Certificate then outstanding, accrued
interest thereon to the Prepayment Date, all other sums due to such Holder
hereunder, under the Participation Agreement or the Lease, plus, if a
Make-Whole Premium is payable pursuant to Section 6.02(b) hereof, the
Make-Whole Premium in respect of such Certificate.
If any Certificate called for prepayment shall not be so paid upon
surrender thereof for prepayment, the principal shall, until paid, continue to
bear interest from the Prepayment Date at the interest rate applicable to such
Certificate.
Section 6.06. Mandatory Sinking Fund Redemption. The Certificates
shall be subject to partial redemption, at the aggregate principal amount set
forth for the Certificates of the respective Series and Maturity, on a pro
rata basis, on each date specified in this Section (a "Sinking Fund Redemption
Date") for such payment on the Certificates of such Series and Maturity. The
Owner Trustee shall deposit funds sufficient to pay the Sinking Fund
Redemption Price with the Indenture Trustee as provided in Section 6.04
hereof. The Indenture Trustee shall pay from the amounts so deposited on each
applicable Sinking Fund Redemption Date to the Certificates of each Series in
the order of priority set forth in clause "first" of Section 5.01 and among the
Holders of the Certificates of each Series then Outstanding on a pro rata
basis the aggregate principal amount set forth below, together with accrued
interest to such Sinking Fund Redemption Date, but without Make-Whole Premium
(the "Sinking Fund Redemption Price"):
Principal Amount
Series A Series B Series C
Certificates Certificates Certificates
Sinking Fund with a Maturity of with a Maturity of with a Maturity of
Redemption Date January 15, 2017 January 15, 2018 January 15, 2014
- ---------------- ------------------ ------------------ ------------------
July 15, 1997 0 0 0
January 15, 1998 251,178 250,140 115,520
July 15, 1998 415,862 0 0
January 15, 1999 131,798 250,140 333,520
July 15, 1999 535,242 0 0
January 15, 2000 121,651 250,140 333,520
July 15, 2000 545,389 0 0
January 15, 2001 213,402 250,140 333,520
July 15, 2001 453,638 0 0
January 15, 2002 411,194 250,140 333,520
July 15, 2002 255,846 0 0
January 15, 2003 667,040 250,140 385,819
July 15, 2003 0 0 0
January 15, 2004 667,040 250,140 754,137
July 15, 2004 0 0 0
January 15, 2005 667,040 250,140 859,087
July 15, 2005 0 0 0
January 15, 2006 667,040 250,140 829,358
July 15, 2006 0 0 0
January 15, 2007 667,040 250,140 3,774,211
July 15, 2007 0 0 0
January 15, 2008 667,040 250,140 670,131
July 15, 2008 0 0 0
January 15, 2009 667,040 250,140 1,727,695
July 15, 2009 0 0 0
January 15, 2010 667,040 250,140 1,745,042
July 15, 2010 0 0 0
January 15, 2011 667,040 2,755,586 169,963
July 15, 2011 0 0 0
January 15, 2012 667,040 3,067,959 0
July 15, 2012 0 0 0
January 15, 2013 3,511,558 1,433,450 0
July 15, 2013 0 0 0
January 15, 2014 1,240,715 0 4,092,957
July 15, 2014 0 0 0
January 15, 2015 5,752,472 0 0
July 15, 2015 0 0 0
January 15, 2016 6,200,717 0 0
July 15, 2016 0 0 0
January 15, 2017 6,640,938 42,957 0
January 15, 2018 0 1,955,228 0
ARTICLE VII
INDENTURE EVENTS OF DEFAULT; REMEDIES
OF INDENTURE TRUSTEE AND HOLDERS
Section 7.01. Indenture Event of Default. "Indenture Event of
Default" means any of the following events (whatever the reason for such
Indenture Event of Default and whether it shall be voluntary or involuntary or
come about or be effected by operation of law or pursuant to or in compliance
with any judgment, decree or order of any court or any order, rule or
regulation of any administrative or governmental body):
(i) any Event of Default specified in Article 16 of the Lease (other
than an Event of Default arising solely as the result of the failure to
make an Excepted Payment unless the Owner Participant shall notify the
Indenture Trustee in writing that such failure shall constitute an
Indenture Event of Default); or
(ii) the failure of the Owner Trustee other than by reason of a
Default or an Event of Default (i) to pay principal, interest or Make-Whole
Premium, if any, on any Certificate when due, and such failure shall have
continued unremedied for ten (10) Business Days after the date when due or
(ii) to pay any other amounts hereunder or under the Certificates when due
and such failure shall have continued unremedied for a period of thirty
(30) days after the Owner Trustee and the Owner Participant shall receive
written demand therefor from the Indenture Trustee or by the Holders of not
less than 25% in aggregate principal amount of Outstanding Certificates; or
(iii) (A) any representation or warranty made by SSB, the Owner
Trustee, the Owner Participant or the Owner Participant Guarantor or any
Owner Trustee Guarantor, in any Operative Agreement or in any certificate of
SSB, the Owner Trustee, the Owner Participant, or the Owner Participant
Guarantor furnished to the Indenture Trustee or any Holder in connection
herewith or therewith or pursuant hereto or thereto shall prove to have been
incorrect when made and was and remains in any respect material to the
Holders and if such misrepresentation is capable of being corrected as of a
subsequent date and if such correction is being sought diligently, and such
misrepresentation shall not have been corrected within 30 days following
notice thereof identified as a "Notice of Indenture Event of Default" being
given to the Owner Trustee and the Owner Participant by the Indenture
Trustee or by a Majority in Interest of Holders; or
(B) any (x) covenant made by the Owner Trustee in the fifth paragraph
following the Habendum Clause hereof or Section 3.05(b)(iii) hereof or
Section 7.02(b) or 7.12 of the Participation Agreement shall be breached in
any respect, (y) covenant made by the Owner Participant in Section 7.02(c)
or the last sentence of Section 7.13 of the Participation Agreement shall
be breached in any respect or (z) other covenant made by the Owner Trustee,
in its individual capacity or as Owner Trustee, or by any Owner Trustee
Guarantor, or by the Owner Participant or the Owner Participant Guarantor
in any Operative Agreement shall be breached in any respect and such breach
shall remain unremedied for a period of thirty (30) days after there has
been given to the Owner Trustee and the Owner Participant by the Indenture
Trustee or by Certificate Holders of not less than 25% in aggregate
principal amount of Outstanding Certificates a written notice identified as
a "Notice of Indenture Event of Default" specifying such breach and
requiring it to be remedied; or
(iv) the Owner Trustee, the Lessor's Estate, any Owner Trustee
Guarantor, the Owner Participant or the Owner Participant Guarantor shall
file any petition or answer seeking for itself any reorganization,
arrangement, composition, readjustment, liquidation, dissolution or similar
relief under any present or future bankruptcy, insolvency or similar
statute, law or regulation;
(v) an order for relief shall be entered in respect of the Owner
Trustee or any Owner Trustee Guarantor or the Owner Participant or the Owner
Participant Guarantor or the Lessor's Estate by a court having jurisdiction
in the premises in an involuntary case under the federal bankruptcy laws as
now or hereafter in effect; or the Owner Trustee or any Owner Trustee
Guarantor or the Owner Participant or the Owner Participant Guarantor or
the Lessor's Estate shall file any answer admitting or not contesting the
material allegations of a petition filed against the Owner Trustee or any
Owner Trustee Guarantor or the Owner Participant or the Owner Participant
Guarantor or the Lessor's Estate in any proceeding referred to in clause
(vi) below or seek or consent or acquiesce in the appointment of any
trustee, custodian, receiver or liquidator of the Owner Trustee or any
Owner Trustee Guarantor or the Owner Participant or the Owner Participant
Guarantor or the Lessor's Estate, as the case may be, or of all or any
substantial part of its properties; or
(vi) without the consent or acquiescence of the Owner Trustee or any
Owner Trustee Guarantor or the Owner Participant or the Owner Participant
Guarantor or the Lessor's Estate, as the case may be, an order shall be
entered constituting an order for relief or approving a petition for relief
or reorganization or any other petition seeking any reorganization,
arrangement, composition, readjustment, liquidation, dissolution or other
similar relief under any present or future bankruptcy, insolvency or
similar statute, law or regulation, or if any such petition shall be filed
against the Owner Trustee or any Owner Trustee Guarantor or the Owner
Participant or the Owner Participant Guarantor or the Lessor's Estate, as
the case may be, and such petition shall not be dismissed within 60 days,
or if, without the consent or acquiescence of the Owner Trustee or any
Owner Trustee Guarantor or the Owner Participant or the Owner Participant
Guarantor or the Lessor's Estate, as the case may be, an order shall be
entered appointing a trustee, custodian, receiver or liquidator of the
Owner Trustee or any Owner Trustee Guarantor or the Owner Participant or
the Owner Participant Guarantor or the Lessor's Estate, as the case may be,
or of all or any substantial part of the properties of the Owner Trustee or
any Owner Trustee Guarantor or the Owner Participant or the Owner
Participant Guarantor or the Lessor's Estate, as the case may be, and such
order shall not be dismissed within 60 days; or
(vii) any Owner Trustee Guaranty or the Owner Participant Guaranty
shall cease to be a valid and enforceable obligation of any Owner Trustee
Guarantor or the Owner Participant Guarantor, as the case may be, or
otherwise shall not be in full force and effect.
Section 7.02. Remedies. (a) If an Indenture Event of Default shall
have occurred and be continuing and so long as the same shall be continuing
unremedied, then and in every such case, the Indenture Trustee may, and when
required by the provisions of Article IX or Section 7.02(c) hereof, shall (i)
exercise any or all of the rights and powers and pursue any and all of the
remedies pursuant to this Article VII and (ii) in the event such Indenture
Event of Default is an Indenture Event of Default referred to in clause (i) of
Section 7.01 hereof, exercise any and all of the remedies pursuant to Article
17 of the Lease; provided that without the consent of the Owner Trustee and
the Owner Participant such exercise of remedies shall not occur until after
the latest date on which the Owner Trustee may cure the related Event of
Default pursuant to Section 8.03 hereof. The Indenture Trustee may (subject
to the provisions of the next succeeding paragraph) take possession of all or
any part of the properties covered or intended to be covered by the Lien and
security interest created hereby or pursuant hereto and may exclude the Owner
Participant, the Owner Trustee, the Lessee and any transferee of the Lessee
and all Persons claiming under any of them wholly or partly therefrom. In
addition, the Indenture Trustee may (subject to the provisions of the next
succeeding paragraph) exercise any other right or remedy in lieu of or in
addition to the foregoing that may be available to it under applicable law, or
proceed by appropriate court action to enforce the terms hereof, of the Lease,
or both, or to rescind the Lease. Without limiting any of the foregoing, it
is understood and agreed that the Indenture Trustee may exercise any right of
sale of the Aircraft available to it, even though it shall not have taken
possession of the Aircraft and shall not have possession thereof at the time
of such sale.
Notwithstanding the foregoing, it is understood and agreed that if the
Indenture Trustee shall proceed to foreclose the Lien of this Indenture, it
shall substantially simultaneously therewith, to the extent the Indenture
Trustee is then entitled to do so hereunder and under the Lease, and is not
then stayed or otherwise prevented from doing so, proceed (to the extent it
has not already done so) to declare the Lease in default and commence the
exercise in good faith of one or more of the significant remedies under
Article 17 of the Lease (as the Indenture Trustee determines in its sole
discretion) for the purpose of recovering the Aircraft. It is further
understood and agreed that if the Indenture Trustee is unable to exercise one
or more remedies under Article 17 of the Lease because of any stay or
operation of law or otherwise, the Indenture Trustee shall not be entitled to
foreclose the Lien of this Indenture (A) until the earlier of (i) 60 days from
the date of any such stay or applicable order under Section 1110 of the
Bankruptcy Code plus any extension consented to by the Indenture Trustee or
the Holders of Certificates of such period as permitted under Section 1110(b)
of the Bankruptcy Code and (ii) the date of actual repossession of the
Aircraft by the Indenture Trustee or (B) if the Lessee has agreed to perform
or assume the Lease pursuant to Section 365 or 1110 of the Bankruptcy Code and
no Event of Default (other than as specified in Section 16.01(e), (f) or (g)
of the Lease, or other Event of Default in respect of which the 30-day period
referred to in clause (a)(1)(B)(ii)(I) of Section 1110 of the Bankruptcy Code
shall not yet have expired) shall be continuing. For the avoidance of doubt,
it is expressly understood and agreed that except as aforesaid the
above-described inability of the Indenture Trustee to exercise any right or
remedy under the Lease shall in no event and under no circumstances prevent
the Indenture Trustee from exercising all of its rights, powers and remedies
under this Indenture, including, without limitation, this Article VII. The
Indenture Trustee further agrees that notice of intent to foreclose shall be
given to the Owner Trustee at the earlier of the commencement of any
proceeding or at least 30 days prior to the consummation of foreclosure of the
Lien of this Indenture.
(b) If an Indenture Event of Default under clause (iv), (v) or (vi)
of Section 7.01 hereof shall occur and be continuing, the unpaid principal of
all Outstanding Certificates, together with interest accrued but unpaid
thereon and all other amounts due thereunder, but without Make-Whole Premium,
shall immediately become due and payable, without presentment, demand, protest
or notice, all of which are hereby waived.
(c) If any Indenture Event of Default not described in the preceding
paragraph (b) shall have occurred and be continuing, then and in every such
case, the Indenture Trustee may on its own accord or at the direction of
Holders of not less than 25% in aggregate principal amount of Outstanding
Certificates, at any time, by written notice to the Owner Trustee, the Owner
Participant and the Lessee, declare the principal of all the Certificates to
be due and payable, whereupon the unpaid principal amount of all Outstanding
Certificates, together with accrued interest thereon and all other amounts due
thereunder, but without Make-Whole Premium, shall immediately become due and
payable without presentment, demand, protest or other notice, all of which are
hereby waived. At any time after such declaration and prior to the sale or
disposition of the Trust Indenture Estate, however, the Holders of not less
than 50% in aggregate principal amount of Outstanding Certificates, by notice
to the Indenture Trustee, the Owner Trustee and the Lessee, may rescind such
declaration, whether made by the Indenture Trustee on its own accord or as
directed, if (x) there has been paid or deposited with the Indenture Trustee a
sum sufficient to pay all overdue installments of interest on all Certificates
(together, to the extent permitted by law, with interest on such overdue
installments of interest), the principal on any Certificates that has become
due otherwise than by such declaration of acceleration, all sums paid or
advanced by the Indenture Trustee hereunder and the reasonable compensation,
expenses, disbursements and advances of the Indenture Trustee, its agents and
counsel, or (y) all Indenture Events of Default (other than the nonpayment of
principal that has become due solely because of such acceleration) have been
either cured or waived as provided in Section 7.11 hereof. No such rescission
shall affect any subsequent default or impair any right consequent thereon.
(d) Each Holder shall be entitled at any sale to credit against any
purchase price bid at such sale by such Holder all or any part of the unpaid
obligations owing to such Holder secured by the Lien of this Indenture (but
only to the extent that an amount equal to such purchase price would have been
paid to such Holder pursuant to Article V hereof if such purchase price were
paid in cash and the foregoing provisions of this subsection (d) were not
given effect).
Section 7.03. Return of Aircraft, etc. Subject to Section 7.02
hereof: (a) If an Indenture Event of Default shall have occurred and be
continuing, at the request of the Indenture Trustee, the Owner Trustee shall
promptly execute and deliver to the Indenture Trustee such documents as the
Indenture Trustee may deem necessary or advisable to enable the Indenture
Trustee or an agent or representative designated by the Indenture Trustee, at
such time or times and place or places as the Indenture Trustee may specify,
to obtain possession of all or any part of the Trust Indenture Estate to which
the Indenture Trustee shall at the time be entitled under this Indenture.
Subject to the foregoing, if the Owner Trustee shall for any reason fail to
execute and deliver such documents after such request by the Indenture
Trustee, the Indenture Trustee may pursue all or part of such Trust Indenture
Estate wherever it may be found and enter any of the premises of the Lessee or
the Owner Trustee wherever such Trust Indenture Estate may be or be supposed
to be and search for such Trust Indenture Estate and take possession of and
remove such Trust Indenture Estate. All expenses of pursuing, searching for
and taking such Trust Indenture Estate shall, until paid, be secured by the
Lien of this Indenture.
(b) Upon every such taking of possession, the Indenture Trustee may,
from time to time, at the expense of the Trust Indenture Estate, make all such
expenditures for maintenance, insurance and repairs to and of such Trust
Indenture Estate, as the Indenture Trustee may reasonably deem proper. In
each case subject to Section 7.02 hereof, the Indenture Trustee shall have the
right to maintain, use, operate, store, lease, control or manage the Trust
Indenture Estate and to carry on the business and to exercise all rights and
powers of the Owner Participant and the Owner Trustee relating to the Trust
Indenture Estate, as the Indenture Trustee may reasonably deem best, including
the right to enter into any and all such agreements with respect to the
maintenance, insurance, use, operation, storage, leasing, control, management
or disposition of all or any part of the Trust Indenture Estate as the
Indenture Trustee may determine. Further, the Indenture Trustee shall be
entitled to collect and receive directly all tolls, rents (including Rent),
revenues, issues, income, products and profits of the Trust Indenture Estate
other than Excepted Payments, without prejudice, however, to the right of the
Indenture Trustee under any provision of this Indenture to collect and receive
all cash held by, or required to be deposited with, the Indenture Trustee
under this Indenture. Such tolls, rents (including Rent), revenues, issues,
income, products and profits shall be applied to pay the expenses of the use,
operation, storage, leasing, control, management, or disposition of the Trust
Indenture Estate, and of all maintenance and repairs, and to make all payments
which the Indenture Trustee may be required or may reasonably elect to make
for any taxes, assessments, insurance or other proper charges upon the Trust
Indenture Estate (including the employment of engineers and accountants to
examine, inspect and make reports upon the properties and books and records of
the Owner Trustee and the Lessee), and all other payments which the Indenture
Trustee may be required or authorized to make under any provision of this
Indenture, as well as just and reasonable compensation for the services of the
Indenture Trustee and of all persons properly engaged and employed for such
purposes by the Indenture Trustee; provided, that any excess amounts shall be
promptly distributed in accordance with Section 5.03 hereof.
(c) Subject to Section 7.02 hereof, if an Indenture Event of
Default shall have occurred and be continuing and the Indenture Trustee shall
be entitled to exercise remedies hereunder, and subject to Article VIII
hereof, the Indenture Trustee, either with or without taking possession, and
either before or after taking possession, and without instituting any legal
proceedings whatsoever, may sell, assign, transfer and deliver the whole or,
from time to time, to the extent permitted by law, any part of the Trust
Indenture Estate, or any part thereof, or interest therein, at any private
sale or public auction to the highest bidder, with or without demand,
advertisement or notice, except that in respect of any private sale 30 days
prior written notice by registered mail to the Owner Trustee and the Owner
Participant will be provided, for cash or, with the consent of the Owner
Trustee and the Owner Participant, credit or for other property, for immediate
or future delivery, and for such price or prices and on such terms as the
Indenture Trustee in exercising reasonable commercial discretion may
determine; provided, that any such action shall be at the time lawful and that
all mandatory legal requirements shall be complied with. Any notice required
pursuant to the terms hereof in the case of a public sale, shall state the
time and place fixed for such sale. Any such public sale shall be held at
such time or times within ordinary business hours as the Indenture Trustee
shall fix in the notice of such sale. At any such sale, the Trust Indenture
Estate may be sold in one lot as an entirety or in separate lots. The
Indenture Trustee shall not be obligated to make any sale pursuant to such
notice. The Indenture Trustee may, without notice or publication, adjourn any
public or private sale or cause the same to be adjourned from time to time by
announcement at the time and place fixed for such sale, and any such sale may
be made at any time or place to which the same may be so adjourned without
further notice or publication. The Indenture Trustee may exercise such right
of sale without possession or production of the Certificates or proof of
ownership thereof, and as representative of the Holders may exercise such
right without notice to the Holders or without including the Holders as
parties to any suit or proceedings relating to the foreclosure of any part of
the Trust Indenture Estate. The Owner Trustee shall execute any and all such
bills of sale, assignments and other documents, and perform and do all other
acts and things requested by the Indenture Trustee in order to permit
consummation of any sale of the Trust Indenture Estate in accordance with this
Section 7.03(c) and to effectuate the transfer or conveyance referred to in
the first sentence of this Section 7.03(c). Notwithstanding any other
provision of this Indenture, the Indenture Trustee shall not sell the Trust
Indenture Estate or any part thereof unless the Certificates shall have been
accelerated.
(d) To the extent permitted by applicable law, and subject to
Section 7.02 hereof, the Indenture Trustee or any Holder may be a purchaser of
the Trust Indenture Estate or any part thereof or any interest therein at any
sale thereof, whether pursuant to foreclosure or power of sale or otherwise.
The Indenture Trustee may apply against the purchase price therefor the amount
then due hereunder or under any of the Certificates secured hereby and any
Holder may apply against the purchase price therefor the amount then due to it
hereunder, under any other Indenture Document or under the Certificates held
by such Holder to the extent of such portion of the purchase price as it would
have received had it been entitled to share any distribution thereof. The
Indenture Trustee or any Holder or nominee thereof shall, upon any such
purchase, acquire good title to the property so purchased, free of the Lien of
this Indenture and, to the extent permitted by applicable law, free of all
rights of redemption in the Owner Trustee or the Owner Participant in respect
of the property so purchased.
(e) The Indenture Trustee shall, as a matter of right, be entitled to
the appointment of a receiver (who may be the Indenture Trustee or any
successor or nominee) for all or any part of the Trust Indenture Estate,
whether such receivership be incidental to a proposed sale of the Trust
Indenture Estate or the taking of possession thereof or otherwise, and the
Owner Trustee hereby consents to the appointment of such receiver and will not
oppose any such appointment. Any receiver appointed for all or any part of
the Trust Indenture Estate shall be entitled to exercise all of the rights and
powers of the Indenture Trustee with respect to the Trust Indenture Estate.
Section 7.04. Indenture Trustee May Prove Debt. If the Owner
Trustee shall fail to pay any amount payable hereunder or under the
Certificates, the Indenture Trustee, in its own name and as trustee of an
express trust, shall be entitled and empowered to institute any action or
proceedings at law or in equity for the collection of the sums so due and
unpaid, and may prosecute any such action or proceedings to judgment or final
decree, and may enforce any such judgment or final decree against the Owner
Trustee and collect in the manner provided by law out of the property of the
Owner Trustee wherever situated, the moneys adjudged or decreed to be payable;
provided, that any sale of any portion of the Trust Indenture Estate shall be
done in accordance with Sections 7.02 and 7.03(c) hereof.
In case there shall be pending proceedings relative to the Owner
Trustee under the Bankruptcy Code or any other applicable Federal or state
bankruptcy, insolvency or other similar law, or in case a receiver, assignee
or trustee in bankruptcy or reorganization, liquidator, sequestrator or
similar official shall have been appointed for or taken possession of the
Owner Trustee or its property, or in case of any other comparable judicial
proceedings relative to the Owner Trustee, or to the creditors or property of
the Owner Trustee, the Indenture Trustee, irrespective of whether the
principal of the Certificates shall then be due and payable as therein or
herein expressed or by declaration or otherwise and irrespective of whether
the Indenture Trustee shall have made any demand pursuant to the provisions of
this Section, shall be entitled and empowered, by intervention in such
proceedings or otherwise:
(a) to file and prove a claim or claims for the whole amount of
principal, interest and other amounts owing and unpaid in respect of the
Certificates or hereunder, and to file such other papers or documents as
may be necessary or advisable in order to have the claims of the Indenture
Trustee (including any claim for reasonable compensation to the Indenture
Trustee and each predecessor Indenture Trustee, and their respective
agents, attorneys and counsel, and for reimbursement of the Indenture
Trustee and each predecessor Indenture Trustee, except as a result of
negligence or bad faith) and of the Holders allowed in any judicial
proceedings relative to the Owner Trustee or to the creditors or property of
the Owner Trustee,
(b) unless prohibited by applicable law and regulations, to vote on
behalf of the Holders in any election of a trustee or a standby trustee in
arrangement, reorganization, liquidation or other bankruptcy or insolvency
proceedings or person performing similar functions in comparable
proceedings, and
(c) to collect and receive any moneys or other property payable or
deliverable on any such claims, and to distribute all amounts received with
respect to the claims of the Holders and of the Indenture Trustee on their
behalf;
and any trustee, receiver, or liquidator, custodian or other similar official
is hereby authorized by each of the Holders to make payments to the Indenture
Trustee, and, in the event that the Indenture Trustee shall consent to the
making of payments directly to the Holders, to pay to the Indenture Trustee
such amounts as shall be sufficient to cover reasonable compensation to the
Indenture Trustee, each predecessor Indenture Trustee and their respective
agents, attorneys and counsel, and all other expenses and liabilities
incurred, and all advances made, by the Indenture Trustee and each predecessor
Indenture Trustee except as a result of negligence or willful misconduct.
Nothing contained herein shall be deemed to authorize the Indenture
Trustee to authorize or consent to or vote for or accept or adopt on behalf of
any Holder any plan of reorganization, arrangement, adjustment or composition
affecting the Certificates or the rights of any Holder thereof, or to
authorize the Indenture Trustee to vote in respect of the claim of any Holder
in any such proceeding except, as aforesaid, to vote for the election of a
trustee in bankruptcy or similar person.
All rights of action and rights to assert claims under this
Indenture, or under any of the Certificates, may be enforced by the Indenture
Trustee without the possession of such Certificates on any trial or other
proceedings instituted by the Indenture Trustee shall be brought in its own
name as trustee of an express trust, and any recovery of judgment, subject to
the payment of the expenses, disbursements and compensation of the Indenture
Trustee, each predecessor Indenture Trustee and their respective agents and
attorneys, shall be for the ratable benefit of the Holders, as provided herein.
In any proceedings brought by the Indenture Trustee (and also any
proceedings involving the interpretation of any provision of this Indenture to
which the Indenture Trustee shall be a party) the Indenture Trustee shall be
held to represent all the Holders of the Certificates, and it shall not be
necessary to make any Holders parties to such proceedings.
Section 7.05. Remedies Cumulative. Each and every right, power and
remedy given to the Indenture Trustee in this Indenture shall be cumulative
and shall be in addition to every other right, power and remedy specifically
given herein or now or hereafter existing at law, in equity or by statute, and
each and every right, power and remedy whether specifically given herein or
otherwise existing may be exercised from time to time and as often and in such
order as may be deemed expedient by the Indenture Trustee or the Holders, and
the exercise or the beginning of the exercise of any power or remedy shall not
be construed to be a waiver of the right to exercise at the same time or later
any other right, power or remedy. No delay or omission by the Indenture
Trustee or of any Holder in the exercise of any right, remedy or power or in
the pursuance of any remedy shall impair any such right, power or remedy or be
construed to be a waiver of any default on the part of the Owner Trustee or
the Lessee or to be an acquiescence in any such default.
Section 7.06. Suits for Enforcement. If an Indenture Event of
Default has occurred, has not been waived and is continuing, the Indenture
Trustee may in its discretion and subject to its rights of appropriate
indemnification under Sections 7.08 and 9.03 and Article XI hereof proceed to
protect and enforce its rights and rights of the Holders by such appropriate
judicial proceedings as the Indenture Trustee shall deem most effectual to
protect and enforce any of such rights, either at law or in equity or in
bankruptcy or otherwise, whether for the specific enforcement of any covenant
or agreement contained in this Indenture or in aid of the exercise of any
power granted in this Indenture or to enforce any other legal or equitable
right vested in the Indenture Trustee or the Holders by this Indenture or by
law; provided, that any sale of any portion of the Trust Indenture Estate
shall be done in accordance with Sections 7.02 and 7.03(c) hereof.
Section 7.07. Discontinuance of Proceedings. In case the Indenture
Trustee or any Holder shall have instituted any proceeding to enforce any
right, power or remedy under this Indenture by foreclosure, entry or
otherwise, and such proceeding shall have been discontinued or abandoned for
any reason or shall have been determined adversely to the Indenture Trustee or
such Holder, then the Owner Trustee, the Indenture Trustee, the Owner
Participant, the Holders and the Lessee shall, subject to any binding
determination in such proceeding, be restored to their former positions and
rights under this Indenture with respect to the Trust Indenture Estate, and all
rights, remedies and powers of the Indenture Trustee and the Holders shall
continue as if no such proceeding had been instituted.
Section 7.08. Limitations on Suits by Holders. No Holder of any
Certificate shall have any right by virtue or by availing of any provision of
this Indenture to institute any action or proceeding at law or in equity or in
bankruptcy or otherwise upon or under or with respect to this Indenture, or
for the appointment of a trustee, receiver, liquidator, custodian or other
similar official or for any other remedy hereunder, unless such Holder
previously shall have given to the Indenture Trustee written notice that an
Indenture Event of Default shall then have occurred and be continuing, as
hereinbefore provided, and the Holders of not less than 25% in aggregate
principal amount of Outstanding Certificates shall have made written request
upon the Indenture Trustee to institute such action or proceedings in its own
name as trustee hereunder and shall have offered to the Indenture Trustee such
reasonable indemnity as it may require against the costs, expenses and
liabilities to be incurred therein or thereby and the Indenture Trustee for 60
days after its receipt of such notice, request and offer of indemnity shall
have failed to institute any such action or proceedings and no direction
inconsistent with such written request shall have been given to the Indenture
Trustee pursuant to Section 7.10 hereof; it being understood and intended, and
being expressly covenanted by the Holder of each Certificate with every other
Holder of each other Certificate and the Indenture Trustee, that no one or
more Holders shall have any right in any manner whatever to affect, disturb or
prejudice the rights of any other Holder or the Lien of this Indenture or any
part of the Trust Indenture Estate or to obtain or seek to obtain priority
over or preference to any other such Holder or to enforce any right under this
Indenture, except in the manner provided herein and for the equal, ratable and
common benefit of all Holders. For the protection and enforcement of the
provisions of this Section, each and every Holder and the Indenture Trustee
shall be entitled to such relief as can be given either at law or in equity.
Section 7.09. Unconditional Right of Holders to Receive Principal,
Interest and Make-Whole Premium, and to Institute Certain Suits.
Notwithstanding any other provision in this Indenture and any provision of any
Certificate, the right of any Holder to receive payment of the principal of
and interest and Make-Whole Premium, if any, on such Certificate on or after
the respective due dates and in the manner expressed in such Certificate, or,
subject to Section 7.08 hereof, to institute suit for the enforcement of any
such payment on or after such respective dates as provided herein, shall not
be impaired or affected without the consent of such Holder.
Section 7.10. Control by Holders. The Majority in Interest of
Certificate Holders shall have the right to direct the Indenture Trustee as to
the time, method, and place of conducting any proceeding for any remedy
available to the Indenture Trustee, or exercising any trust or power conferred
on the Indenture Trustee by this Indenture; provided that such direction shall
not be otherwise than in accordance with law and the provisions of this
Indenture and the Indenture Trustee shall have received, to the extent
provided in Sections 7.08 and 9.03 and Article XI hereof, such reasonable
indemnification as it may require against the costs, expenses and liabilities
to be incurred by the Indenture Trustee; and provided further that (subject to
the provisions of Section 9.02 hereof) the Indenture Trustee shall have the
right to decline to follow any such direction if the Indenture Trustee, being
advised by counsel, shall determine that the action or proceeding so directed
may not lawfully be taken or if the Indenture Trustee in good faith by its
board of directors, the executive committee, or a trust committee of directors
or Responsible Officers of the Indenture Trustee shall determine that the
action or proceedings so directed would involve the Indenture Trustee in
personal liability or if the Indenture Trustee in good faith shall so
determine that the actions or forebearances specified in or pursuant to such
direction shall be unduly prejudicial to the interests of Holders not joining
in the giving of said direction, it being understood that (subject to Section
9.02 hereof) the Indenture Trustee shall have no duty to ascertain whether or
not such actions or forebearances are unduly prejudicial to such Holders.
Nothing in this Indenture shall impair the right of the Indenture
Trustee in its discretion to take any action deemed proper by the Indenture
Trustee and which is not inconsistent with the direction by the Majority in
Interest of Certificate Holders.
Section 7.11. Waiver of Past Indenture Default. Upon written
instructions from the Majority in Interest of Certificate Holders, the
Indenture Trustee shall waive any past Indenture Default and its consequences
and upon any such waiver such Indenture Default shall cease to exist and any
Indenture Event of Default arising therefrom shall be deemed to have been
cured for every purpose of this Indenture, but no such waiver shall extend to
any subsequent or other Indenture Default or impair any right consequent
thereon; provided, however, that in the absence of written instructions from
all Holders and each Liquidity Provider, the Indenture Trustee shall not waive
any Indenture Default (a) in the payment of the principal of or Make-Whole
Premium, if any, or interest on, or other amounts due under, any Certificate
then Outstanding, or (b) in respect of a covenant or provision of this
Indenture which, under Article XIII hereof, cannot be modified or amended
without the consent of each Holder.
Section 7.12. Notice of Indenture Default. The Indenture Trustee
shall transmit to the Owner Trustee, the Holders and to the Owner Participant
notice of any Indenture Defaults actually known to a Responsible Officer of
the Indenture Trustee, such notice to be transmitted by mail to the Holders
within 90 days, and to the Owner Trustee and the Owner Participant promptly
after the occurrence thereof, unless such Indenture Default shall have been
cured before the giving of such notice; provided that except in the case of a
default in the payment of the principal of or interest on any Certificate,
under no circumstances shall the Indenture Trustee give such notice to the
Holders until the expiration of a period of 60 days from the occurrence of such
Indenture Default; and provided further that, except in the case of default in
the payment of the principal of or interest on or any other amount due under
any of the Certificates, the Indenture Trustee shall be protected in
withholding such notice to the Holders if and so long as the board of
directors, the executive committee, or a trust committee of directors or
trustees and/or Responsible Officers of the Indenture Trustee in good faith
determines that the withholding of such notice is in the interests of the
Holders.
ARTICLE VIII
RIGHTS OF THE OWNER TRUSTEE
AND THE OWNER PARTICIPANT
Section 8.01. Certain Rights of Owner Trustee and Owner Participant.
(a) Subject to Section 13.01 hereof and the provisions of paragraph (a)
immediately following the Granting Clause hereof, without the consent of a
Majority in Interest of Certificate Holders, the respective parties to the
Indenture Documents may not modify, amend or supplement any of said
agreements, or give any consent, waiver, authorization or approval thereunder,
for the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions thereof or of modifying in any manner the
rights of the respective parties thereunder; provided, however, that the
actions specified in subsection (b) of this Section 8.01 may be taken without
the consent of the Indenture Trustee or any Holder.
(b) Subject to the provisions of subsection (c) of this Section
8.01, the Lessor and the respective parties to the Indenture Documents, at any
time and from time to time, without the consent of the Indenture Trustee or of
any Holder, may:
(1) so long as no Indenture Event of Default shall have occurred and
be continuing, modify, amend or supplement the Lease, or give any waiver
with respect thereto, except that without compliance with subsection (a) of
this Section 8.01 the parties to the Lease shall not modify, amend or
supplement, or give any waiver for the purpose of adding any provisions to
or changing in any manner or eliminating any of the provisions thereof or
of modifying in any manner the rights of the respective parties thereunder,
with respect to the following provisions of the Lease as in effect on the
effective date hereof: Article 2 (except in respect of the Term, if the
result thereof would not be to shorten the Term of the Lease to a period
shorter than the period ending with the Maturity of any Certificate),
Section 3.03 (except to the extent such Section relates to amounts payable
(whether directly or pursuant to this Indenture) to Persons other than
Holders, each Liquidity Provider, the Subordination Agent and the Indenture
Trustee in its individual capacity), Section 3.05, Section 3.06 (except
insofar as it relates to the address or account information of the Owner
Trustee or the Indenture Trustee) (other than as such Sections 3.03, 3.05
and 3.06 may be amended pursuant to Section 3.04 of the Lease as in effect
on the effective date hereof), Section 5.01, Article 6, Article 10 (except
that further restrictions may be imposed on the Lessee), Article 11 (except
that additional requirements may be imposed on the Lessee), Article 13
(except for Section 13.05 and except that additional insurance requirements
may be imposed on the Lessee), Article 14 (except in order to increase the
Lessee's liabilities or enhance the Lessor's rights thereunder), Article 15
(except in the case of an assignment by the Lessor in circumstances where
the Aircraft shall remain registrable under the Federal Aviation Act),
Section 16.01 (except to impose additional or more stringent Events of
Default), Article 17 (except to impose additional remedies), Section 19.01
(except to impose additional requirements on the Lessee), Section 20.01,
Article 22, Section 23.01, Section 26.03 and any definition of terms used
in the Lease, to the extent that any modification of such definition would
result in a modification of the Lease not permitted pursuant to this
subsection (b); provided that the parties to the Lease may take any such
action without the consent of the Indenture Trustee or any Holder to the
extent such action relates to the payment of amounts constituting, or the
Owner Trustee's, the Owner Participant's or the Lessee's rights or
obligations with respect to, Excepted Payments (other than the place, time
and manner of payment of any portion of Basic Rent constituting an Excepted
Payment);
(2) modify, amend or supplement the Trust Agreement and any other
Indenture Document (other than the Lease and the Participation Agreement),
or give any consent, waiver, authorization or approval with respect
thereto, in each case only to the extent any such action shall not
materially adversely impact the interests of the Holders;
(3) modify, amend or supplement the Participation Agreement, or give
any consent, waiver, authorization or approval with respect thereto, except
that without compliance with subsection (a) of this Section 8.01 the
parties to the Participation Agreement shall not modify, amend or
supplement, or give any consent, waiver, authorization or approval for the
purpose of adding provisions to or changing in any manner or eliminating
any of the provisions thereof or of modifying in any manner the rights of
the respective parties thereunder, with respect to the following provisions
of the Participation Agreement as in effect on the effective date hereof:
Article 6 and Section 10.01(b) (insofar as such Article 6 and Section
10.01(b) relate to the Indenture Trustee, the Pass Through Trustee and the
Holders), Article 7 and Sections 3.05, 15.01, 17.02 and 17.11 and Articles
8 and 9 (insofar as such Articles relate to the Indenture Trustee; it being
understood that only the Indenture Trustee's consent in respect thereof
need be obtained) and any definition of terms used in the Participation
Agreement, to the extent that any modification of such definition would
result in a modification of the Participation Agreement not permitted
pursuant to this subsection (b); and
(4) modify, amend or supplement any of said agreements in order to
cure any ambiguity, to correct or supplement any provisions thereof which
may be defective or inconsistent with any other provision thereof or of any
provision of this Indenture, or to make any other provision with respect to
matters or questions arising thereunder or under this Indenture which shall
not be inconsistent with the provisions of this Indenture, provided the
making of any such other provision shall not adversely affect the interests
of the Holders.
(c) No modification, amendment, supplement, consent, waiver,
authorization or approval with respect to the Lease or the Participation
Agreement, whether effected pursuant to subsection (a) or pursuant to
subsection (b) of this Section 8.01 and anything in such subsections or
elsewhere in this Indenture to the contrary notwithstanding, shall, without
the consent of the Holder of each Outstanding Certificate affected thereby,
and each Liquidity Provider,
(1) modify, amend or supplement the Lease in such a way as to extend
the time of payment of Basic Rent or Stipulated Loss Value or Supplemental
Rent payable to the Holders or any Liquidity Provider or any other amounts
payable for the account of the Holders or any Liquidity Provider (subject
in any event to Section 3.05 of the Lease) upon the occurrence of an Event
of Loss or Termination Value and any other amounts payable for the account
of the Holders (subject in any event to Section 3.05 of the Lease) upon
termination of the Lease with respect to the Aircraft payable under, or as
provided in, the Lease as in effect on the effective date hereof, or reduce
the amount of any installment of Basic Rent or Supplemental Rent so that
the same is less than the payment of principal of, and interest on the
Certificates and Make-Whole Premium, if any, and amounts due to each
Liquidity Provider, as the case may be, to be made from such installment of
Basic Rent or Supplemental Rent, or reduce the aggregate amount of
Stipulated Loss Value, or any other amounts payable under, or as provided
in, the Lease as in effect on the effective date hereof upon the occurrence
of an Event of Loss so that the same is less than the accrued interest on
and the principal as of the Loss Payment Date, of the Certificates at the
time Outstanding or reduce the amount of Termination Value and any other
amounts payable under, or as provided in, the Lease as in effect on the
effective date hereof upon termination of the Lease with respect to the
Aircraft so that the same is less than the accrued interest on and
principal as of the Lease Termination Date and Make-Whole Premium, if any,
of Certificates at the time Outstanding, or
(2) modify, amend or supplement the Lease in such a way as to, or
consent to any assignment of the Lease or give any consent, waiver,
authorization or approval which would, release the Lessee from its absolute
and unconditional obligations in respect of payment of Basic Rent or
Supplemental Rent, or Stipulated Loss Value and any other amounts payable
for the account of the Holders (subject in any event to Section 3.05 of the
Lease) upon the occurrence of an Event of Loss, or Termination Value and
any other amounts payable for the account of the Holders (subject in any
event to Section 3.05 of the Lease) with respect to the Aircraft, payable
under, or as provided in, the Lease as in effect on the effective date
hereof, except for any such assignment pursuant to Section 2.12 hereof, and
except as provided in the Lease as in effect on the effective date hereof.
(d) At all times so long as this Indenture is in effect, the consent
of the Owner Trustee (at the direction of the Owner Participant) shall be
required in order (i) to amend, modify or supplement the Lease or any other
Operative Document to which the Owner Trustee is a party or to waive
compliance by the Lessee with any of its obligations thereunder and (ii) to
grant any consent requested under the Lease.
Notwithstanding the foregoing, but subject always to the provision of Section
15.05 hereof, the Indenture Trustee shall at all times have the right, to the
exclusion of the Owner Trustee and the Owner Participant, to (A) declare the
Lease to be in default under Article 17 (other than with respect to Excepted
Payments) thereof and (B) subject only to the provisions of this Indenture,
exercise the remedies set forth in such Article 17 of the Lease (other than in
connection with Excepted Payments) and in Article 7 hereof.
Nothing in this Indenture shall be deemed to prohibit the Owner
Participant or the Owner Trustee from making demand on the Lessee for, or from
commencing an action at law to obtain the payment of, or from receiving
payment of, any Excepted Payment; provided, however, that if the Owner Trustee
is proceeding under the Lease, the Owner Trustee shall proceed pursuant to
Section 17.01(a)(v), and only Section 17.01(a)(v), of the Lease.
Section 8.02. Owner Participant's Right to Elect to Prepay or
Purchase the Certificates. (a) If (i) an Event of Default shall have occurred
and be continuing for more than 180 days or the Certificates shall have become
due and payable pursuant to Section 7.02(b) or (c) hereof or (ii) an Event of
Default shall have occurred and be continuing for not more than 180 days and
the Certificates shall not have become due and payable pursuant to Section
7.02(b) or (c) hereof, the Owner Participant (or the Owner Trustee on behalf
of the Owner Participant) may, but shall be under no obligation to, do either
of the following:
(1) direct the Owner Trustee to cause the prepayment of all, but not
less than all, of the Certificates then Outstanding by notifying the
Indenture Trustee of such election, which notice in order to be effective
shall state that it is irrevocable (except as provided below) and shall
designate a Prepayment Date which shall be a Business Day which shall be
not less than 15 days after the date of such notice on which the Owner
Trustee shall, in the manner provided for in Section 6.04 hereof, deposit
the sum of amounts contemplated by paragraph "first" under Section 5.03 and
the aggregate Prepayment Price (determined in accordance with Section
6.02(b) hereof) of all such Certificates with the Indenture Trustee. If
such payment by the Owner Trustee to the Indenture Trustee is made, the
Certificates shall cease to accrue interest from and after the Prepayment
Date, and after distribution of such payment to the Holders, the Indenture
Trustee shall release the Trust Indenture Estate from the Lien of this
Indenture; or
(2) purchase all, but not less than all, of the Outstanding
Certificates by notifying the Indenture Trustee of such election, which
notice in order to be effective shall state that it is irrevocable (except
as provided below) and shall designate a date which shall be a Business Day
which shall be not less than 15 days after the date of such notice on which
the Owner Trustee shall pay to the Indenture Trustee an amount equal to the
aggregate unpaid principal amount of all Outstanding Certificates, together
with accrued interest on such amount to the date of purchase, the aggregate
amount of any Make-Whole Premium applicable to each Outstanding Certificate
(if such purchase occurs prior to the Premium Termination Date for such
Outstanding Certificate) in the case of a purchase pursuant to clause
(a)(ii) above (but not if such purchase is pursuant to clause (a)(i)
above), plus all other sums due any Holder or the Indenture Trustee
hereunder or under the Participation Agreement or the Lease. Upon receipt
by the Indenture Trustee of such amount, each Holder will be deemed,
whether or not Certificates shall have been delivered to the Indenture
Trustee on such date, to have thereupon sold, assigned, transferred and
conveyed (and shall promptly take such actions as the Owner Participant
shall reasonably request to evidence such sale, assignment, transfer and
conveyance) to the Owner Participant (without recourse or warranty of any
kind except for its own acts), all of the right, title and interest of such
Holder in and to the Trust Indenture Estate and this Indenture and all
Certificates held by such Holder and the former Holders shall not be
entitled to receive any interest on the principal amount of such
Certificates after the purchase date, and the Owner Participant shall be
deemed to have assumed (and shall promptly take such actions as any Holder
shall reasonably request to evidence such assumption) all of such Holder's
obligations under the Participation Agreement and this Indenture arising
subsequent to such sale. If the Owner Trustee shall so request, such
Holder will comply with all the provisions of Section 2.06 of this
Indenture to enable new Certificates to be issued to the Owner Participant
in such authorized denominations as the Owner Participant shall request.
All charges and expenses required pursuant to Section 2.06 hereof in
connection with the issuance of any such new Certificates shall be borne by
the Owner Participant.
(b) From and after the deposit by the Owner Trustee of the applicable
Prepayment Price or purchase price with the Indenture Trustee pursuant to
Section 8.02(a) hereof, the Owner Trustee shall be entitled to exercise all
remedies of the Indenture Trustee under Article VII hereof as well as of the
Lessor under the Lease.
(c) Any election to prepay or purchase the Certificates under this
Section 8.02 shall be irrevocable, provided that if on the specified date for
prepayment or purchase, the Event of Default giving rise to such election
shall no longer be continuing under the Lease such election shall be deemed to
be automatically withdrawn.
Section 8.03. Certain Rights of Owner Participant. (a) If (A)
there shall occur an Event of Default under the Lease as a result of the
Lessee's failure to make any payment of an installment of Basic Rent, and (B)
the Owner Trustee shall have paid or caused to be paid on or prior to the date
which is 15 Business Days after the Owner Participant's receipt of written
notice of such Event of Default all principal and interest on the Certificates
then due (as well as any interest on overdue principal and (to the extent
permitted by applicable law) interest), but not including any principal or
interest becoming due on account of such Event of Default, then the failure of
the Lessee to make the payment of such installment of Basic Rent or of
interest on account of such installment's being overdue shall not constitute
or result in an Indenture Event of Default under this Indenture and any
declaration based solely on the same shall be deemed to be automatically
rescinded. Nothing contained in the preceding sentence shall be deemed to
entitle the Owner Trustee to exercise any rights and powers or pursue any
remedies pursuant to Article 17 of the Lease or otherwise except as set forth
in this Indenture, and except that the Owner Trustee or the Owner Participant
may attempt to recover any amount paid by it or them under this Indenture by
demanding of the Lessee payment of such amount, or by commencing an action at
law or equity against the Lessee for the payment of such amount or taking
appropriate action in a pending action at law against the Lessee pursuant to
Section 17.01(a)(v), but only said Section 17.01(a)(v), of the Lease. Upon
curing any such Event of Default pursuant to this Section 8.03, the Owner
Trustee or the Owner Participant, as the case may be, shall be subrogated on
an unsecured basis to all the rights of the Indenture Trustee under the Lease
in respect of the payment giving rise to such Event of Default, and any right
to any interest in respect of the same, and shall be entitled to any payment
of Basic Rent (or interest thereon) actually made by the Lessee in respect of
such cured payment upon receipt by the Indenture Trustee; provided that no such
amount shall be paid to the Owner Trustee or the Owner Participant until all
amounts then due and payable to each Certificate Holder hereunder and
thereunder shall have been paid in full and no Indenture Event of Default
shall have occurred and be continuing. Notwithstanding anything in this
Indenture or the Lease to the contrary, the Owner Participant and the Owner
Trustee collectively, shall not be entitled to cure more than six (6) Events
of Default (no more than three (3) of which may be consecutive) occasioned by
defaults in the payment of Basic Rent.
(b) If (A) there shall occur an Event of Default under the Lease for
any reason other than the Lessee's failure to make any payment of an
installment of Basic Rent and (B) the Owner Trustee shall have taken or caused
to be taken such action necessary to cure and shall have cured such Event of
Default prior to the date which is 15 Business Days after the Owner
Participant's receipt of the written notice of such Event of Default, then
the failure of the Lessee to perform such covenant, condition or agreement,
the observance or performance of which was accomplished by the Owner Trustee
hereunder shall not constitute or result in an Indenture Event of Default under
this Indenture and any declaration based solely on the same shall be deemed to
be automatically rescinded. Nothing contained in the preceding sentence shall
be deemed to entitle the Owner Trustee or the Owner Participant to exercise
any rights and powers or pursue any remedies pursuant to Article 17 of the
Lease or otherwise except as set forth in this Indenture, and except that the
Owner Trustee or the Owner Participant may attempt to recover any amount paid
by it or them in effecting such cure by demanding of the Lessee payment of
such amount, plus any interest due, or by commencing an action at law or in
equity against the Lessee for the payment of such amount or taking appropriate
action in a pending action at law or in equity against the Lessee pursuant to
Section 17.01(a)(v), but only said Section 17.01(a)(v), of the Lease. Upon
curing any such Event of Default pursuant to this Section 8.03(b), the Owner
Trustee or the Owner Participant, as the case may be, shall be subrogated to
all the rights of the Indenture Trustee under the Lease in respect of the
payment, agreement or covenant giving rise to such Event of Default, and any
right to any interest in respect of the same, and shall be entitled to any
payment or other performance upon receipt by the Indenture Trustee; provided
that no such amount shall be paid to the Owner Trustee or the Owner
Participant until all amounts then due and payable to each Certificate Holder
hereunder and thereunder shall have been paid in full and no Indenture Event
of Default shall have occurred and be continuing.
ARTICLE IX
CONCERNING THE INDENTURE TRUSTEE
Section 9.01. Acceptance of Trusts. The Indenture Trustee in its
individual capacity hereby accepts the trusts imposed upon it by this
Indenture, and covenants and agrees to perform the same as expressed herein
and agrees to receive and disburse all moneys constituting part of the Trust
Indenture Estate in accordance with the terms hereof.
Section 9.02. Duties and Responsibilities of the Indenture Trustee;
During an Indenture Event of Default; Prior to an Indenture Event of Default.
(a) The Indenture Trustee, prior to the occurrence of an Indenture Event of
Default and after the curing or waiving of all Indenture Events of Default
which may have occurred, undertakes to perform such duties and only such
duties as are specifically set forth in this Indenture. So long as an
Indenture Event of Default has occurred and has not been cured or waived, the
Indenture Trustee shall exercise such of the rights and powers vested in it by
this Indenture, and use the same degree of care and skill in their exercise,
as a prudent man would exercise or use under the circumstances in the conduct
of his own affairs. No provision of this Indenture shall be construed to
relieve the Indenture Trustee from liability for its own negligent action, its
own negligent failure to act or its own willful misconduct, except that:
(i) prior to the occurrence of an Indenture Event of Default and
after the curing or waiving of all Indenture Events of Default which may have
occurred:
(x) the duties and obligations of the Indenture Trustee shall be
determined solely by the express provisions of this Indenture, and the
Indenture Trustee shall not be liable except for the performance of such
duties and obligations as are specifically set forth in this Indenture, and no
implied covenants or obligations shall be read in to this Indenture against
the Indenture Trustee; and
(y) in the absence of bad faith on the part of the Indenture
Trustee, the Indenture Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed therein, upon any
statements, certificates or opinions furnished to the Indenture Trustee and
conforming to the requirements of this Indenture; but in the case of any such
statements, certificate or opinions which by any provision hereof are
specifically required to be furnished to the Indenture Trustee, the Indenture
Trustee shall be under a duty to examine the same to determine whether or not
they conform to the requirements of this Indenture;
(ii) the Indenture Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer or Responsible Officers
of the Indenture Trustee, unless it shall be proved that the Indenture Trustee
was negligent in ascertaining the pertinent facts; and
(iii) the Indenture Trustee shall not be liable with respect to any
action taken or not taken by it in good faith in accordance with the direction
of the Holders of not less than a majority in aggregate principal amount of
Outstanding Certificates relating to the time, method and place of conducting
any proceeding for any remedy available to the Indenture Trustee, or
exercising any trust or power conferred upon the Indenture Trustee, under this
Indenture.
None of the provisions contained in this Indenture shall require the
Indenture Trustee to expend or risk its own funds or otherwise incur personal
financial liability in the performance of any of its duties or in the exercise
of any of its rights or powers, if the Indenture Trustee shall have determined
in good faith that the repayment of such funds or adequate indemnity against
such liability is not reasonably assured to it.
The Indenture Trustee agrees that it will execute and the Owner
Trustee agrees that it will, at the expense of the Lessee, file or cause to be
filed such continuation statements with respect to financing statements
relating to the security interest created hereunder in the Trust Indenture
Estate as may be specified from time to time in written instructions of the
Holders of not less than 25% in aggregate principal amount of Certificates
(which instructions may, by their terms, be operative only at a future date
and which shall be accompanied by the execution form of such continuation
statement so to be filed); provided that, notwithstanding the foregoing, the
Indenture Trustee may execute and file or cause to be filed any financing
statement which it from time to time deems appropriate.
(b) If any Event of Default shall have occurred and be continuing
and, after the latest date on which the Owner Trustee may cure such Event of
Default pursuant to Section 8.03 hereof, on request of the Holders of not less
than 25% in aggregate principal amount of Outstanding Certificates and subject
to indemnification, to the extent provided in Sections 7.08 and 9.03 and
Article XI hereof, as it may require against the costs, expenses and
liabilities to be incurred, the Indenture Trustee shall exercise such remedies
under Article 17 of the Lease as shall be specified in such request.
(c) The Indenture Trustee agrees that it will, in its individual
capacity and at its own cost and expense (but without any right of indemnity
in respect of any such cost or expense under Article XI hereof) promptly take
such action as may be necessary duly to discharge all Indenture Trustee's
Liens on any part of the Trust Indenture Estate.
(d) The Indenture Trustee will execute and deliver to the Lessee for
filing in accordance with Article 18 of the Lease any properly presented
document, instrument or financing or continuation statement specified in any
opinion delivered pursuant to Section 6.03(e) of the Participation Agreement.
The Indenture Trustee may rely on the act of presentation of any such
document, instrument, financing or continuation statement as evidencing the
fact that it is properly prepared and presented, provided that the Indenture
Trustee shall promptly correct any error in any such document, instrument,
financing or continuation statement of which a Responsible Officer of the
Indenture Trustee has actual knowledge.
(e) The Indenture Trustee will furnish to each Holder promptly upon
receipt thereof, duplicates or copies of all reports, notices, requests,
demands, certificates, financial statements and other instruments furnished to
the Indenture Trustee, to the extent that the same shall not have been
otherwise furnished to such Holder pursuant to this Indenture or to the extent
the Indenture Trustee does not reasonably believe that the same shall have
been furnished by the Lessee directly to such Holder.
Section 9.03. Certain Rights of the Indenture Trustee. Subject to
Section 9.02 hereof:
(a) the Indenture Trustee may rely and shall be protected in acting
or refraining from acting upon any resolution, Officer's Certificate or any
other certificate, statement, instrument, opinion, report, notice, request,
consent, order, bond, debenture, note, coupon, security 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, direction, order or demand of the Owner Trustee
mentioned herein shall be sufficiently evidenced by an Officer's
Certificate (unless other evidence in respect thereof be herein
specifically prescribed) upon which the Indenture Trustee may rely to prove
or establish a matter set forth therein;
(c) the Indenture Trustee may consult with counsel and any advice or
Opinion of Counsel shall be full and complete authorization and protection
in respect of any action taken, suffered or omitted to be taken by it
hereunder in good faith and in accordance with such advice or Opinion of
Counsel;
(d) the Indenture Trustee shall be under no obligation to exercise
any of the trusts or powers vested in it by this Indenture at the request,
order or direction of any of the Holders pursuant to the provisions of this
Indenture, unless such Holders shall have offered to the Indenture Trustee
reasonable security or indemnity against the costs, expenses and
liabilities which might be incurred therein or thereby;
(e) the Indenture Trustee shall not be liable for any action taken
or omitted by it in good faith and believed by it to be authorized or
within the discretion, rights or powers conferred upon it by this Indenture;
(f) prior to the occurrence of an Indenture Event of Default
hereunder and after the curing or waiving of all Indenture Events of
Default, the Indenture Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, approval,
appraisal, bond, debenture, note, coupon, security, or other paper or
document unless requested in writing to do so by the Majority in Interest
of Certificate Holders; provided that, if the payment within a reasonable
time to the Indenture Trustee of the costs, expenses or liabilities likely
to be incurred by it in the making of such investigation is, in the opinion
of the Indenture Trustee, not reasonably assured to the Indenture Trustee
by the security afforded to it by the terms of this Indenture, the
Indenture Trustee may require reasonable indemnity against such costs,
expenses or liabilities as a condition to proceeding; the reasonable
expenses of every such examination shall be paid by the Owner Trustee or,
if paid by the Indenture Trustee or any predecessor trustee, shall be
repaid by the Owner Trustee upon demand; and
(g) the Indenture Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
agents or attorneys not regularly in its employ and the Indenture Trustee
shall not be responsible for any misconduct or negligence on the part of
any such agent or attorney appointed with due care by it hereunder.
Section 9.04. Indenture Trustee Not Responsible for Recitals,
Disposition of Certificates or Application of Proceeds Thereof. The Indenture
Trustee assumes no responsibility for the correctness of the recitals
contained herein and in the Certificates, except the Indenture Trustee's
certificates of authentication. The Indenture Trustee makes no
representation as to the validity or sufficiency of this Indenture or of the
Certificates. The Indenture Trustee shall not be accountable for the use or
application by the Owner Trustee of any of the Certificates or of the proceeds
thereof.
Section 9.05. Indenture Trustee and Agents May Hold Certificates;
Collections, etc. The Indenture Trustee or any agent of the Indenture Trustee
in its individual or any other capacity may become the owner or pledgee of
Certificates with the same rights it would have if it were not the Indenture
Trustee or such agent and may otherwise deal with the Owner Trustee and
receive, collect, hold and retain collections from the Owner Trustee with the
same rights it would have if it were not the Indenture Trustee or such agent.
Section 9.06. Moneys Held by Indenture Trustee. Subject to Sections
5.08 hereof and 14.04 hereof, all moneys received by the Indenture Trustee
shall, until used or applied as herein provided, be held in trust for the
purposes for which they were received, but need not be segregated from other
funds except to the extent required by mandatory provisions of law. Neither
the Owner Trustee nor, subject to Section 5.08 hereof, the Indenture Trustee
nor any agent thereof shall be under any liability for interest on any moneys
received by it hereunder.
Section 9.07. Right of Indenture Trustee to Rely on Officer's
Certificate, etc. Subject to Sections 9.02 and 9.03 hereof, whenever in the
administration of the trusts of this Indenture the Indenture Trustee shall
deem it necessary or desirable that a matter be proved or established prior to
taking or suffering or omitting any action hereunder, such matter (unless
other evidence in respect thereof be specifically prescribed herein) may, in
the absence of bad faith on the part of the Indenture Trustee, be deemed to be
conclusively proved and established by an Officer's Certificate delivered to
the Indenture Trustee, and such certificate, in the absence of bad faith on
the part of the Indenture Trustee, shall be full warrant to the Indenture
Trustee for any action taken, suffered or omitted by it under the provisions
of this Indenture upon the faith thereof.
Section 9.08. Replacement Airframes and Replacement Engines. At any
time and from time to time any Airframe or Engine which has been subject to an
Event of Loss and may, or is required to, be replaced under Section 10.03,
11.03 or 11.04 of the Lease by a Replacement Airframe or Replacement Engine,
as the case may be, shall be replaced in accordance with the provisions of
this Section 9.08 and the provisions of said Sections of the Lease, the Owner
Trustee shall, from time to time, direct the Indenture Trustee to execute and
deliver to or as directed in writing by the Owner Trustee an appropriate
instrument releasing such Airframe and/or Engine as appropriate from the Lien
of this Indenture and the Indenture Trustee shall execute and deliver such
instrument as aforesaid without recourse or warranty, but only upon receipt by
or deposit with the Indenture Trustee of the following:
(1) A written request from the Owner Trustee requesting such release
and specifically describing the Airframe and/or Engine(s) to be so released.
(2) A certificate signed by a duly authorized officer of the Lessee
stating the following:
A. With respect to the replacement of any Airframe:
(i) a description of the Airframe subject to the Event of Loss
including the manufacturer, model, FAA registration number (or other
applicable registration information) and manufacturer's serial number;
(ii) a description of the Replacement Airframe, including the
manufacturer, model, FAA registration number (or other applicable
registration information) and manufacturer's serial number;
(iii) that on the date of the Indenture and Security Agreement
Supplement relating to the Replacement Airframe the Owner Trustee
will be the legal owner of and have good and marketable title to such
Replacement Airframe free and clear of all Liens except Liens
permitted under Section 6.01 of the Lease, that such Replacement
Airframe will on such date be in at least as good operating condition
and repair as required by the terms of the Lease, and that such
Replacement Airframe has been or, substantially concurrently with
such replacement, will be duly registered in the name of the Owner
Trustee under the Transportation Code or under the law then
applicable to the registration of the Airframe subject to the Event
of Loss and that an airworthiness certificate has been duly issued
under the Aviation Act (or such other applicable law) with respect to
such Replacement Airframe and that such registration and certificate
is, or will be, in full force and effect, and that the Lessee will
have the full right and authority to use such Replacement Airframe;
(iv) that the insurance required by Article 13 of the Lease is in
full force and effect with respect to such Replacement Airframe and
all premiums then due thereon have been paid in full;
(v) that the Replacement Airframe is of the same or an improved make
or model as the Airframe requested to be released from this Indenture;
(vi) that the value of the Replacement Airframe as of the date of such
certificate is not less than the value of the Airframe requested to
be released (assuming such Airframe was in the condition and repair
required to be maintained under the Lease);
(vii) that no Event of Default has occurred and is continuing or
would result from the making and granting of the request for release
and the addition of a Replacement Airframe;
(viii) that the release of the Airframe subject to the Event of Loss
will not impair the security of the Indenture in contravention of any
of the provisions of this Indenture;
(ix) that upon such replacement, the Lien of this Indenture will
apply to the Replacement Airframe and such Lien will be a first
priority security interest in favor of the Indenture Trustee; and
(x) that each of the conditions specified in Section 11.03 of the
Lease with respect to such Replacement Airframe has been satisfied.
B. With respect to the replacement of any Engine:
(i) a description of the Engine subject to the Event of Loss
including the manufacturer's serial number;
(ii) a description of the Replacement Engine including the
manufacturer's name, the engine model and serial number;
(iii) that on the date of the Indenture and Security Agreement
Supplement relating to the Replacement Engine the Owner Trustee will
be the legal owner of such Replacement Engine free and clear of all
Liens except Liens permitted under Section 6.01 of the Lease, and
that such Replacement Engine will on such date be in at least as good
operating condition and repair as required by the terms of the Lease
and will otherwise conform to the requirements set forth in the
definition of "Replacement Engine";
(iv) that the value of the Replacement Engine as of the date of such
certificate is not less than the value of the Engine to be released
(assuming such Engine was in the condition and repair required to be
maintained under the Lease);
(v) that the release of the Engine subject to the Event of Loss will
not impair the security of the Indenture in contravention of any of
the provisions of this Indenture;
(vi) that upon such replacement, the Lien of this Indenture will
apply to the Replacement Engine and such Lien will be a first
priority security interest in favor of the Indenture Trustee; and
(vii) that each of the conditions specified in Section 10.03, 11.03
or 11.04 of the Lease with respect to such Replacement Engine has
been satisfied.
(3) The appropriate instruments (i) transferring to the Owner
Trustee title to the Replacement Airframe or Replacement Engine to be received
as consideration for the Airframe or Engine to be released and (ii) assigning
to the Owner Trustee the benefit of all manufacturer's and vendor's
warranties, if any, generally available with respect to such Replacement
Airframe or Replacement Engine, and an Indenture and Security Agreement
Supplement subjecting such Replacement Airframe or Replacement Engine to the
Trust Agreement and to the Lien of this Indenture.
(4) A certificate from a firm of independent aircraft appraisers of
national standing satisfactory to the Indenture Trustee and the Owner Trustee
confirming the accuracy of the information set forth in clause (2)A.(vi) of
this Section 9.08.
(5) The opinion of Davis Polk & Wardwell, special counsel to the
Lessee, or other counsel reasonably satisfactory to the Indenture Trustee,
stating that:
(i) the certificates, opinions and other instruments and/or property
which have been or are therewith delivered to and deposited with the
Indenture Trustee conform to the requirements of this Indenture and the
Lease and, upon the basis of such application, the property so sold or
disposed of may be properly released from the Lien of this Indenture and
all conditions precedent herein provided for relating to such release have
been complied with; and
(ii) the Replacement Airframe or Replacement Engine has been validly
subjected to the Lien of this Indenture and covered by the Lease, the
instruments subjecting such Replacement Airframe or Replacement Engine to
the Lease and to the Lien of this Indenture, as the case may be, have been
duly filed for recordation pursuant to the Transportation Code or any other
law then applicable to the registration of the Aircraft, and no further
action, filing or recording of any document is necessary or advisable in
order to establish and perfect the title of the Owner Trustee to and the
Lien of this Indenture on such Replacement Airframe or Replacement Engine
and the Indenture Trustee would be entitled to the benefits of Section 1110
of the Bankruptcy Code with respect to such Replacement Airframe or
Replacement Engine, provided, that such opinion need not be to the effect
specified in the foregoing clause to the extent that the benefits of such
Section 1110 would not have been, by reason of a change in law or
governmental interpretation thereof after the date hereof, available to the
Indenture Trustee with respect to the Aircraft immediately prior to such
substitution had such Event of Loss not occurred.
Section 9.09. Indenture and Security Agreement Supplement for
Replacements. In the event of the substitution of a Replacement Airframe or a
Replacement Engine as contemplated by Section 10.03 or Article 11 of the
Lease, the Owner Trustee and the Indenture Trustee agree for the benefit of
the Holders and the Lessee, subject to fulfillment of the conditions precedent
and compliance by the Lessee with its obligations set forth in Section 10.03
or Article 11 of the Lease, to execute and deliver an Indenture and Security
Agreement Supplement as contemplated by Section 9.08(3) hereof and, provided
no Event of Default shall have occurred and be continuing, execute and deliver
to the Lessee an appropriate instrument releasing the Airframe or Engine being
replaced from the Lien of this Indenture.
Section 9.10. Effect of Replacement. In the event of the
substitution of a Replacement Airframe or a Replacement Engine as contemplated
by Section 10.01 or Article 11 of the Lease and Section 9.08 hereof, all
provisions of this Indenture relating to the Airframe or Engine or Engines
being replaced shall be applicable to such Replacement Airframe or Replacement
Engine or Engines with the same force and effect as if such Replacement
Airframe or Replacement Engine or Engines were the same Airframe or engine or
engines, as the case may be, as the Airframe or Engine or Engines being
replaced but for the Event of Loss with respect to the Airframe or Engine or
Engines being replaced.
Section 9.11. Compensation. The Owner Trustee covenants and agrees
to pay, and the Indenture Trustee shall be entitled to receive, reasonable
compensation and payment or reimbursement for its reasonable advances,
expenses and disbursements (including the reasonable compensation and expenses
and disbursements of its counsel, agents and other persons not regularly in
its employ) in connection with its services rendered hereunder or in any way
relating to or arising out of the administration of the Trust Indenture Estate
and shall have a priority claim on the Trust Indenture Estate for the payment
of such compensation, advances, expenses and disbursements to the extent that
such compensation, advances, expenses and disbursements shall not be paid by
the Lessee, and shall have the right to use or apply any moneys held by it
hereunder in the Trust Indenture Estate toward such payments; provided that,
so long as the Lease is in effect, the Indenture Trustee shall not make any
claim for payment under this Section 9.11 against the Owner Trustee without
first making demand on the Lessee for payment of such claim. The Indenture
Trustee agrees that it shall have no right against any Holder, SSB or the
Owner Participant for any fee as compensation for its services as trustee
under this Indenture.
ARTICLE X
CONCERNING THE HOLDERS
Section 10.01. Evidence of Action Taken by Holders. (a) Any
request, demand, authorization, direction, notice, consent, waiver or other
action provided by this Indenture to be given or taken by Holders may be
embodied in and evidenced by one or more instruments of substantially similar
tenor signed by such Holders in person or by an agent duly appointed in
writing, and, except as otherwise expressly provided herein, such action shall
become effective when such instrument or instruments are delivered to the
Indenture Trustee and, if expressly required herein, to the Owner Trustee.
Proof of execution of any instrument or of a writing appointing any such agent
shall be sufficient for any purpose of this Indenture and (subject to Sections
9.02 and 9.03 hereof) conclusive in favor of the Indenture Trustee and the
Owner Trustee, if made in the manner provided in this Article.
(b) For the purpose of determining the Holders entitled to vote or
consent to any direction, waiver or other action of such Holders under Section
7.10 or 7.11 hereof, the Lessee may set a record date for such vote or consent
by specifying such record date in an Officer's Certificate delivered to the
Indenture Trustee. Such record date shall be a date not more than 15 days
prior to the first solicitation of such vote or consent.
Section 10.02. Proof of Execution of Instruments and of Holding of
Certificates. Subject to Sections 9.02 and 9.03 hereof, the execution of any
instrument by a Holder or his agent or proxy may be proved in accordance with
such reasonable rules and regulations as may be prescribed by the Indenture
Trustee. The holding of Certificates shall be proved by the Register or by a
certificate of the Registrar.
Section 10.03. Holders to Be Treated as Owners. Prior to due
presentment for registration of transfer of any Certificate, the Owner
Trustee, the Indenture Trustee, any agent of the Owner Trustee or the
Indenture Trustee, the Paying Agent, if any, the Registrar and the Lessee
shall deem and treat the Person in whose name such Certificate shall be
registered upon the Register as the absolute owner of such Certificate
(whether or not such Certificate shall be overdue and notwithstanding any
notation of ownership or other writing thereon) for the purpose of receiving
payment of or on account of the principal of and, subject to the provisions of
this Indenture, interest on such Certificate and for all other purposes; and
neither the Owner Trustee nor the Indenture Trustee (nor any agent of the
Owner Trustee or the Indenture Trustee) nor the Paying Agent, if any, nor the
Registrar nor the Lessee shall be affected by any notice to the contrary. All
such payments so made to any such person, or upon his order, shall be valid,
and, to the extent of the sum or sums so paid, effectual to satisfy and
discharge the liability for moneys payable upon any such Certificate.
Section 10.04. Certificates Owned by Owner Trustee and the Lessee
Deemed Not Outstanding. In determining whether the Holders of the requisite
aggregate principal amount of Certificates have concurred in any direction,
consent or waiver under this Indenture, Certificates which are owned by the
Owner Trustee, the Owner Participant, SSB, the Lessee or by any Affiliate
thereof shall be disregarded and deemed not to be Outstanding for the purpose
of any such determination; provided that for the purpose of determining
whether the Indenture Trustee shall be protected in relying on any such
direction, consent or waiver, only if a Responsible Officer of the Indenture
Trustee has actual knowledge that certain Certificates are so owned by any
person directly or indirectly controlling or controlled by or under direct or
indirect common control with the Owner Trustee, the Owner Participant, SSB or
the Lessee shall such Certificates be so disregarded; and provided further
that if all Certificates which would be deemed Outstanding in the absence of
the foregoing provision are owned by the Owner Trustee, SSB or the Owner
Participant or by any Affiliate thereof, then such Certificates shall be
deemed Outstanding for the purpose of any such determination. Certificates
so owned which have been pledged in good faith may be regarded as Outstanding
if the pledgee establishes to the satisfaction of the Indenture Trustee the
pledgee's right so to act with respect to such Certificates and that the
pledgee is not the Owner Trustee, the Owner Participant, SSB or the Lessee or
any Person directly or indirectly controlling or controlled by or under direct
or indirect common control with the Owner Trustee, the Owner Participant, SSB
or the Lessee. In case of a dispute as to such right, the advice of counsel
shall be full protection in respect of any decision made by the Indenture
Trustee in accordance with such advice, unless the Lessee, the Owner Trustee,
SSB, or the Owner Participant are actually named in the Register. Upon
request of the Indenture Trustee, the Owner Trustee, the Owner Participant,
SSB and the Lessee shall furnish to the Indenture Trustee promptly an
Officer's Certificate listing and identifying all Certificates, if any, known
by the Owner Trustee, the Owner Participant, SSB or the Lessee to be owned or
held by or for the account of any of the above-described persons; and, subject
to Sections 9.02 and 9.03 hereof, the Indenture Trustee shall be entitled to
accept such Officer's Certificate as conclusive evidence of the facts set
forth therein and of the fact that all Certificates not listed therein are
outstanding for the purpose of any such determination.
Section 10.05. Right of Revocation of Action Taken. At any time
prior to (but not after) the evidencing to the Indenture Trustee, as provided
in Section 10.01, of the taking of any action by the Holders of the percentage
in aggregate principal amount of the Certificates specified in this Indenture
in connection with such action, any Holder of a Certificate, the serial number
of which is shown by the evidence to be included among the serial numbers of
the Certificates the Holders of which have consented to such action, may, by
filing written notice at the Corporate Trust Department and upon proof of
holding as provided in this Article, revoke such action so far as concerns
such Certificate. Except as aforesaid, any such action taken by the Holder
shall be conclusive and binding upon such Holder and upon all future Holders
and owners of such Certificate and of any Certificates issued in exchange or
substitution therefor, irrespective of whether or not any notation in regard
thereto is made upon any such Certificate or otherwise. Any action taken by
the Holders of the percentage in aggregate principal amount of the
Certificates specified in this Indenture in connection with such action shall
be conclusively binding upon the Owner Trustee, the Indenture Trustee and the
Holders of all the Certificates.
Section 10.06. ERISA. Any Person, other than the Subordination
Agent, who is acquiring the Certificates will be deemed to represent and
warrant that (i) no assets of an employee benefit plan subject to Title I of
ERISA or an individual retirement account or plan subject to Section 4975 of
the Code, or any trust established under any such plan or account, have been
used to acquire or hold any of the Certificates, or (ii) that one or more
administrative or statutory exemptions from the prohibited transaction rules
under Section 406 of ERISA and Section 4975 of the Code applies to its
purchase and holding of the Certificates such that its purchase and holding of
the Certificates will not result in a non-exempt prohibited transaction under
Section 406 of ERISA and Section 4975 of the Code.
ARTICLE XI
INDEMNIFICATION OF INDENTURE
TRUSTEE BY OWNER TRUSTEE
The Owner Trustee, not individually but solely in its capacity as
Owner Trustee under the Trust Agreement, hereby agrees, whether or not any of
the transactions contemplated hereby shall be consummated, to assume liability
for, and does hereby indemnify, protect, save and keep harmless the Indenture
Trustee, in its individual capacity, and its successors, assigns, agents and
servants solely from the Lessor's Estate, with respect to the claims of the
Indenture Trustee for payment or reimbursement under Section 9.11 hereof and
from and against any and all liabilities, obligations, losses, damages,
penalties, taxes (excluding any taxes payable by the Indenture Trustee on or
measured by any compensation received by the Indenture Trustee for its
services under this Indenture and any taxes excluded from the Lessee's
indemnity obligation under Section 8.01(b) of the Participation Agreement),
claims, actions, suits, costs, expenses or disbursements (including legal fees
and expenses) of any kind and nature whatsoever which may be imposed on,
incurred by or asserted against the Indenture Trustee (whether or not also
agreed to be indemnified against by any other person under any other document)
in any way relating to or arising out of this Indenture, or any other
Indenture Documents or the enforcement of any of the terms of any thereof, or
in any way relating to or arising out of the manufacture, purchase,
acceptance, nonacceptance, rejection, ownership, delivery, lease, possession,
use, operation, condition, sale, return or other disposition of the Aircraft or
any Engine (including, without limitation, latent and other defects, whether
or not discoverable, and any claim for patent, trademark or copyright
infringement), or in any way relating to or arising out of the administration
of the Trust Indenture Estate or the action or inaction of the Indenture
Trustee hereunder, except only (a) in the case of willful misconduct or gross
negligence of the Indenture Trustee in the performance of its duties
hereunder, (b) as may result from the inaccuracy of any representation or
warranty of the Indenture Trustee in the Participation Agreement, (c) as
otherwise provided in Section 9.02(c) hereof or (d) as otherwise excluded by
the terms of Article 8 or Article 9 of the Participation Agreement from the
Lessee's general indemnity or general tax indemnity to the Indenture Trustee
under said Article; provided that so long as the Lease is in effect, the
Indenture Trustee shall not make any claim under this Article XI for any claim
or expense indemnified by the Lessee under the Participation Agreement without
first making demand on the Lessee for payment of such claim or expense. The
Indenture Trustee shall be entitled to indemnification, from the Trust
Indenture Estate, for any liability, obligation, loss, damage, penalty, claim,
action, suit, cost, expense or disbursement indemnified against pursuant to
this Article XI to the extent not reimbursed by the Lessee or others, but
without releasing any of them from their respective agreements of
reimbursement; and to secure the same the Indenture Trustee shall have a prior
Lien on the Trust Indenture Estate. The indemnities contained in this Article
XI shall survive the termination of this Indenture and the resignation or
removal of the Indenture Trustee. Upon payment in full by the Owner Trustee
of any indemnity pursuant to this Article XI, the Owner Trustee shall, so long
as no Indenture Event of Default shall have occurred and be continuing, be
subrogated to the rights of the Indenture Trustee, if any, in respect of the
matter as to which the indemnity was paid.
ARTICLE XII
SUCCESSOR TRUSTEES
Section 12.01. Notice of Successor Owner Trustee. In the case of any
appointment of a successor to the Owner Trustee pursuant to the Trust
Agreement or any merger, conversion, consolidation or sale of substantially
all of the corporate trust business of the Owner Trustee pursuant to the Trust
Agreement, the successor Owner Trustee shall give prompt written notice
thereof to the Indenture Trustee.
Section 12.02. Resignation and Removal of Indenture Trustee;
Appointment of Successor. (a) The Indenture Trustee or any successor thereto
may resign at any time without cause by giving at least 30 days' prior written
notice to the Owner Trustee, the Owner Participant, the Lessee and each
Holder, such resignation to be effective upon the acceptance of the
trusteeship by a successor Indenture Trustee. In addition, the Majority in
Interest of the Certificate Holders or the Owner Trustee, with the consent of
the Lessee and the Majority in Interest of the Certificate Holders may at any
time remove the Indenture Trustee without cause by an instrument in writing
delivered to the Lessee, the Owner Trustee, the Owner Participant, and the
Indenture Trustee, and the Indenture Trustee shall promptly notify each Holder
thereof of such action in writing, such removal to be effective upon the
acceptance of the trusteeship by a successor Indenture Trustee. In the case
of the resignation or removal of the Indenture Trustee, the Majority in
Interest of the Certificate Holders, or the Owner Trustee, with the consent of
the Lessee and the Majority in Interest of the Certificate Holders, may
appoint a successor Indenture Trustee by an instrument signed by such Holders.
If a successor Indenture Trustee shall not have been appointed within 30 days
after such notice of resignation or removal, the Indenture Trustee, the Owner
Trustee, the Lessee, the Owner Participant, or any Holder may apply to any
court of competent jurisdiction to appoint a successor Indenture Trustee to
act until such time, if any, as a successor shall have been appointed as
provided above. The successor Indenture Trustee so appointed by such court
shall immediately and without further act be superseded by any successor
Indenture Trustee appointed as provided above.
(b) In case at any time any of the following shall occur:
(i) the Indenture Trustee shall cease to be eligible in accordance
with the provisions of Section 12.03 hereof and shall fail to resign after
written request therefor by the Owner Trustee or by any Holder; or
(ii) the Indenture Trustee shall become incapable of acting, or shall
be adjudged a bankrupt or insolvent, or a receiver or liquidator of the
Indenture Trustee or of its property shall be appointed, or any public
officer shall take charge or control of the Indenture Trustee or of its
property or affairs for the purpose of rehabilitation, conservation or
liquidation;
then the Owner Trustee may remove the Indenture Trustee and, with the consent
of the Lessee, appoint a successor trustee by written instrument, in
duplicate, executed by a Responsible Officer of the Owner Trustee, one copy of
which instrument shall be delivered to the Indenture Trustee so removed and
one copy to the successor trustee, or, subject to the provisions of Section
7.13 hereof, any Holder who has been a bona fide Holder 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 Indenture Trustee
and the appointment of a successor trustee. Such court may thereupon, after
such notice, if any, as it may deem proper and prescribe, remove the Indenture
Trustee and appoint a successor trustee, which removal and appointment shall
become effective upon acceptance of appointment by the successor trustee as
provided in Section 12.04 hereof. The successor Indenture Trustee so
appointed by such court shall immediately and without further act be
superseded by any successor Indenture Trustee appointed as provided above
within one year from the date of appointment by such court.
Section 12.03. Persons Eligible for Appointment as Indenture
Trustee. There shall at all times be an Indenture Trustee hereunder which
shall be (i)(x) a bank or trust company organized and doing business under the
laws of the United States of America or any state or the District of Columbia
having a combined capital and surplus of at least $100,000,000 or (y) a bank
or trust company whose obligations hereunder are fully guaranteed by a direct
or indirect parent thereof having a combined capital and surplus of at least
$100,000,000 and (ii) a Citizen of the United States authorized under
applicable law to exercise corporate trust powers and subject to supervision of
examination by Federal, state or District of Columbia authority. If such
corporation publishes reports of condition at least annually, pursuant to law
or to the requirements of the aforesaid supervising or examining authority,
then for the purposes of this Section, 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 condition so published. In case at any
time the Indenture Trustee shall cease to be eligible in accordance with the
provisions of this Section, the Indenture Trustee shall resign immediately in
the manner and with the effect specified in Section 12.02 hereof.
Section 12.04. Acceptance of Appointment by Successor Trustee. Any
successor trustee appointed as provided in Section 12.02 hereof shall execute
and deliver to the Owner Trustee, the Lessee, and to its predecessor trustee
an instrument accepting such appointment hereunder, in form and substance
reasonably satisfactory to the Owner Trustee, and thereupon the resignation or
removal of the predecessor trustee shall become effective and such successor
trustee, without any further act, deed or conveyance, shall become vested with
all rights, powers, duties and obligations of its predecessor hereunder, with
like effect as if originally named as trustee herein; but, nevertheless, on
the written request of the Owner Trustee or of the successor trustee, upon
payment of its charges then unpaid, the trustee ceasing to act shall, subject
to Section 14.04 hereof, pay over to the successor trustee all moneys at the
time held by it hereunder and shall execute and deliver an instrument
transferring to such successor trustee all such rights, powers, duties and
obligations. Upon request of any such successor trustee, the Owner Trustee
shall execute any and all instruments in writing for more fully and certainly
vesting in and confirming to such successor trustee all such rights and
powers. Any trustee ceasing to act shall, nevertheless, retain a prior claim
upon all property or funds held or collected by such trustee to secure any
amounts then due it pursuant to the provisions of Article XI hereof.
No successor trustee shall accept appointment as provided in this
Section 12.04 unless at the time of such acceptance such successor trustee
shall be eligible under the provisions of Section 12.03 hereof.
Upon acceptance of appointment by a successor trustee as provided in
this Section 12.04, the successor trustee shall mail notice thereof by
first-class mail to the Holders at their last addresses as they shall appear
in the Register, and shall mail a copy of such notice to the Lessee and the
Owner Trustee. If the acceptance of appointment is substantially
contemporaneous with the resignation, then the notice called for by the
preceding sentence may be combined with the notice called for by Section 12.02
hereof.
Section 12.05. Merger, Conversion, Consolidation or Succession to
Business of Indenture Trustee. Any corporation into which the Indenture
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 Indenture Trustee shall be a party, or any corporation succeeding to
the corporate trust business of the Indenture Trustee, shall be the successor
to the Indenture Trustee hereunder, provided that, anything herein to the
contrary notwithstanding, such corporation shall be eligible under the
provisions of Section 12.03 hereof, without the execution or filing of any
paper or any further act on the part of any of the parties hereto.
In case at the time such successor to the Indenture Trustee shall
succeed to the trusts created by this Indenture any of the Certificates shall
have been authenticated but not delivered, any such successor to the Indenture
Trustee may adopt the certificate of authentication of any predecessor
Indenture Trustee and deliver such Certificates so authenticated; and, in case
at that time any of the Certificates shall not have been authenticated, any
successor to the Indenture Trustee may authenticate such Certificates either
in the name of any predecessor hereunder or in the name of the successor
Indenture Trustee; and in all such cases such certificate shall have the full
force which it is anywhere in the Certificates or in this Indenture provided
that the certificate of the Indenture Trustee shall have; provided, that the
right to adopt the certificate of authentication of any predecessor Indenture
Trustee or to authenticate Certificates in the name of any predecessor
Indenture Trustee shall apply only to its successor or successors by merger,
conversion or consolidation.
Section 12.06. Appointment of Separate Trustees. (a) At any time or
times, for the purpose of meeting any legal requirements of any jurisdiction
in which any part of the Trust Indenture Estate may at the time be located or
in which any action of the Indenture Trustee may be required to be performed
or taken, the Indenture Trustee, by an instrument in writing signed by it, may
appoint one or more individuals or corporations to act as a separate trustee
or separate trustees or co-trustee, acting jointly with the Indenture Trustee,
of all or any part of the Trust Indenture Estate, to the full extent that
local law makes it necessary for such separate trustee or separate trustees or
co-trustee acting jointly with the Indenture Trustee to act.
(b) The Indenture Trustee and, at the request of the Indenture
Trustee, the Owner Trustee, shall execute, acknowledge and deliver all such
instruments as may be required by the legal requirements of any jurisdiction
or by any such separate trustee or separate trustees or co-trustee for the
purpose of more fully confirming such title, rights or duties to such separate
trustee or separate trustees or co-trustee. Upon the acceptance in writing of
such appointment by any such separate trustee or separate trustees or
co-trustee, it, he or they shall be vested with such title to the Trust
Indenture Estate or any part thereof, and with such rights, powers, duties and
obligations, as shall be specified in the instrument of appointment, and such
rights, powers, duties and obligations shall be conferred or imposed upon and
exercised or performed by the Indenture Trustee, or the Indenture Trustee and
such separate trustee or separate trustees or co-trustee jointly with the
Indenture Trustee subject to all the terms of this Indenture, except to the
extent that under any law of any jurisdiction in which any particular act or
acts are to be performed the Indenture Trustee shall be incompetent or
unqualified to perform such act or acts, in which event such rights, powers,
duties and obligations shall be exercised and performed by such separate
trustee or separate trustees or co-trustee, as the case may be. Any separate
trustee or separate trustees or co-trustee may, at any time by an instrument
in writing, constitute the Indenture Trustee its or his attorney-in-fact and
agent with full power and authority to do all acts and things and to exercise
all discretion on its or his behalf and in its or his name. In case any such
separate trustee or co-trustee shall die, become incapable of acting, resign
or be removed, the title to the Trust Indenture Estate and all assets,
property, rights, powers, duties and obligations and duties of such separate
trustee or co-trustee shall, so far as permitted by law, vest in and be
exercised by the Indenture Trustee, without the appointment of a successor to
such separate trustee or co-trustee unless and until a successor is appointed.
(c) All provisions of this Indenture which are for the benefit of
the Indenture Trustee (including without limitation Article XI hereof) shall
extend to and apply to each separate trustee or co-trustee appointed pursuant
to the foregoing provisions of this Section 12.06.
(d) Every additional trustee and separate trustee hereunder shall,
to the extent permitted by law, be appointed and act and the Indenture Trustee
shall act, subject to the following provisions and conditions:
(i) all powers, duties, obligations and rights conferred upon the
Indenture Trustee in respect of the receipt, custody, investment and
payment of moneys shall be exercised solely by the Indenture Trustee;
(ii) all other rights, powers, duties and obligations conferred or
imposed upon the Indenture Trustee shall be conferred or imposed and
exercised or performed by the Indenture Trustee and such additional trustee
or trustees and separate trustee or trustees jointly except to the extent
that under any law of any jurisdiction in which any particular act or acts
are to be performed, the Indenture Trustee shall be incompetent or
unqualified to perform such act or acts, in which event such rights,
powers, duties and obligations (including the holding of title to the Trust
Indenture Estate in any such jurisdiction) shall be exercised and performed
by such additional trustee or trustees or separate trustee or trustees;
(iii) no power hereby given to, or exercisable by, any such additional
trustee or separate trustee shall be exercised hereunder by such additional
trustee or separate trustee except jointly with, or with the consent of,
the Indenture Trustee; and
(iv) no trustee hereunder shall be liable either personally or in its
capacity as such trustee, by reason of any act or omission of any other
trustee hereunder.
If at any time the Indenture Trustee shall deem it no longer necessary or
prudent in order to conform to any such law, the Indenture Trustee shall
execute and deliver an indenture supplemental hereto and all other instruments
and agreements necessary or proper to remove any additional trustee or
separate trustee.
(e) Any request, approval or consent in writing by the Indenture
Trustee to any additional trustee or separate trustee shall be sufficient
warrant to such additional trustee or separate trustee, as the case may be, to
take such action as may be so requested, approved or consented to.
(f) Notwithstanding any other provision of this Section 12.06, the
powers of any additional trustee or separate trustee shall not exceed those of
the Indenture Trustee hereunder.
ARTICLE XIII
SUPPLEMENTS AND AMENDMENTS TO THIS
TRUST INDENTURE AND OTHER DOCUMENTS
Section 13.01. Supplemental Indentures Without Consent of Holders.
The Owner Trustee (when authorized by the Owner Participant) and the Indenture
Trustee, without consent of the Holders, may enter into an indenture or
indentures supplemental hereto for one or more of the following purposes:
(a) to convey, transfer, assign, mortgage or pledge any property or
assets to the Indenture Trustee as security for the Certificates;
(b) to evidence the succession of another corporation to the Owner
Trustee or successive successions, and the assumption by the successor
corporation of the covenants, agreements and obligations of the Owner
Trustee herein and in the Certificates;
(c) to add to the covenants of the Owner Trustee such further
covenants, restrictions, conditions or provisions as it and the Indenture
Trustee shall consider to be for the protection of the Holders, and to make
the occurrence, or the occurrence and continuance, of a default in any such
additional covenants, restrictions, conditions or provisions an Indenture
Event of Default permitting the enforcement of all or any of the several
remedies provided herein; provided, that in respect of any such additional
covenant, restriction, condition or provision such supplemental indenture
may provide for a particular period of grace after default (which period
may be shorter or longer than that allowed in the case of other defaults)
or may provide for an immediate enforcement upon such an Indenture Event of
Default or may limit the remedies available to the Indenture Trustee upon
such an Indenture Event of Default or may limit the right of not less than
the Majority in Interest of Certificate Holders to waive such an Indenture
Event of Default;
(d) to surrender any right or power conferred herein upon the Owner
Trustee or the Owner Participant;
(e) to cure any ambiguity or to correct or supplement any provision
contained herein or in any supplemental indenture which may be defective or
inconsistent with any other provision contained herein or in any
supplemental indenture; or to make such other provisions in regard to
matters or questions arising under this Indenture or under any supplemental
indenture as the Owner Trustee may deem necessary or desirable and which
shall not adversely affect the interests of the Holders;
(f) to correct or amplify the description of any property at any
time subject to the Lien of this Indenture or better to assure, convey and
confirm unto the Indenture Trustee any property subject or required to be
subject to the Lien of this Indenture or to subject Replacement Airframe or
Replacement Engines to the Lien of this Indenture in accordance with the
provisions hereof or with the Lease or to release from the Lien of this
Indenture property that has been substituted on or removed from the
Aircraft as contemplated in Section 3.07 hereof; provided that supplements
to this Indenture entered into for the purpose of subjecting Replacement
Airframe or Replacement Engines to the Lien of this Indenture need only be
executed by the Owner Trustee and the Indenture Trustee;
(g) to provide for the issuance under this Indenture of Certificates
in coupon form (including Certificates registrable as to principal only)
and to provide for exchangeability of such Certificates with Certificates
issued hereunder in fully registered form, and to make all appropriate
changes for such purpose;
(h) to effect the re-registration of the Aircraft pursuant to
Section 6.03(b) of the Participation Agreement; and
(i) to add, eliminate or change any provision hereunder so long as
such action shall not adversely affect the interests of the Holders.
The Indenture Trustee is hereby authorized to join in the execution
of any such supplemental indenture, to make any further appropriate agreements
and stipulations which may be contained therein and to accept the conveyance,
transfer, assignment, mortgage or pledge of any property thereunder, but the
Indenture Trustee shall not be obligated to enter into any such supplemental
indenture which adversely affects the Indenture Trustee's own rights, duties
or immunities under this Indenture or otherwise.
Any such supplemental indenture may be executed without the consent of
the Holders of Outstanding Certificates, notwithstanding any of the provisions
of Section 13.02 hereof.
Section 13.02. Supplemental Indentures With Consent of Holders.
With the consent (evidenced as provided in Article X) of the Majority in
Interest of Certificate Holders, the Owner Trustee (when authorized by the
Owner Participant) and the Indenture Trustee may, from time to time and at any
time, enter into an indenture or indentures supplemental hereto for the
purpose of adding any provisions to or changing in any manner or eliminating
any of the provisions of this Indenture or of any supplemental indenture or of
modifying in any manner the rights of the Holders; provided, however, that,
without the consent of each and every Holder and each Liquidity Provider, no
such amendment of or supplement to this Indenture or any indenture
supplemental hereto, or modification of the terms of, or consent under, any
thereof, shall (a) modify any of the provisions of Section 7.11 hereof or this
Section 13.02, (b) reduce the amount or extend the time of payment of any
amount owing or payable under any Certificate or reduce the interest payable
on any Certificate (except that only the consent of the Holder shall be
required for any decrease in any amounts of or the rate of interest payable on
such Certificate or any extension for the time of payment of any amount
payable under such Certificate), or alter or modify the provisions of Article
V hereof with respect to the order of priorities in which distributions
thereunder shall be made as among Holders of different Series of Certificates
or as between the Holder and the Owner Trustee or the Owner Participant or
with respect to the amount or time of payment of any such distribution, or
alter or modify the circumstances under which a Make-Whole Premium shall be
payable, or alter the currency in which any amount payable under any
Certificate is to be paid, or impair the right of any Holder to commence legal
proceedings to enforce a right to receive payment hereunder, (c) reduce,
modify or amend any indemnities in favor of any Holder or in favor of or to be
paid by the Owner Participant (except as consented to by each Person adversely
affected thereby), or (d) create or permit the creation of any Lien on the
Trust Indenture Estate or any part thereof prior to or pari passu with the
Lien of this Indenture, except as expressly permitted herein, or deprive any
Holder of the benefit of the Lien of this Indenture on the Trust Indenture
Estate, except as provided in Section 7.02 hereof or in connection with the
exercise of remedies under Article VII. This Section 13.02 shall not apply to
any indenture or indentures supplemental hereto permitted by, and complying
with the terms of, Section 13.06 hereof.
Upon the request of the Owner Trustee (at the direction of the Owner
Participant) and upon the filing with the Indenture Trustee of evidence of the
consent of Holders and other documents, if any, required by Section 10.01, the
Indenture Trustee shall join with the Owner Trustee and the Lessee in the
execution of such supplemental indenture unless such supplemental indenture
affects the Indenture Trustee's own rights, duties or immunities under this
Indenture or otherwise, in which case the Indenture Trustee may in its
discretion, but shall not be obligated to, enter into such supplemental
indenture.
It shall not be necessary for the consent of the Holders under this
Section to approve the particular form of any proposed supplemental indenture,
but it shall be sufficient if such consent shall approve the substance
thereof.
Promptly after the execution by the Owner Trustee, the Indenture
Trustee and the Lessee of any supplemental indenture pursuant to the
provisions of this Section, the Indenture Trustee shall mail a notice thereof
by first-class mail to the Holders at their addresses as they shall appear on
the registry books of the Registrar, setting forth in general terms the
substance of such supplemental indenture. Any failure of the Indenture
Trustee to mail such notice, or any defect therein, shall not, however, in any
way impair or affect the validity of any such supplemental indenture.
Section 13.03. Effect of Supplemental Indenture. Upon the execution
of any supplemental indenture pursuant to the provisions hereof, this
Indenture shall be and be deemed to be modified and amended in accordance
therewith and the respective rights, limitations of rights, obligations,
duties and immunities under this Indenture of the Indenture Trustee, the Owner
Trustee, the Lessee and the Holders shall thereafter be determined, exercised
and enforced hereunder subject in all respects to such modifications and
amendments, and all the terms and conditions of any such supplemental
indenture shall be and be deemed to be part of the terms and conditions of
this Indenture for any and all purposes.
Section 13.04. Documents to Be Given to Indenture Trustee. The
Indenture Trustee, subject to the provisions of Sections 9.02 and 9.03, may
receive an Officer's Certificate and an Opinion of Counsel as conclusive
evidence that any such supplemental indenture complies with the applicable
provisions of this Indenture.
Section 13.05. Notation on Certificates in Respect of Supplemental
Indentures. Certificates authenticated and delivered after the execution of
any supplemental indenture pursuant to the provisions of this Article may bear
a notation in form approved by the Indenture Trustee as to any matter provided
for by such supplemental indenture. If the Owner Trustee or the Indenture
Trustee shall so determine, new Certificates so modified as to conform, in the
opinion of the Owner Trustee and the Indenture Trustee, to any modification of
this Indenture contained in any such supplemental indenture may be prepared by
the Owner Trustee, authenticated by the Indenture Trustee and delivered in
exchange for the Outstanding Certificates.
Section 13.06. No Request Necessary for Lease Supplement or Indenture
and Security Agreement Supplement. Notwithstanding anything contained in
Section 13.02 hereof, no written request or consent of the Indenture Trustee,
any Holder or the Owner Participant pursuant to Section 13.02 hereof shall be
required to enable the Owner Trustee to enter into any supplement to the Lease
with the Lessee in accordance with the terms and conditions of the Lease to
subject a Replacement Airframe or Replacement Engine thereto or to execute and
deliver an Indenture and Security Agreement Supplement pursuant to the terms
hereof.
Section 13.07. Notices to Liquidity Providers. Any request made to
any Holder for consent to any amendment, supplement or waiver pursuant to
Section 7.11, 8.01 or this Article XIII shall be promptly furnished by the
Indenture Trustee to each Liquidity Provider.
ARTICLE XIV
SATISFACTION AND DISCHARGE OF INDENTURE;
UNCLAIMED MONEYS
Section 14.01. Satisfaction and Discharge of Indenture; Termination
of Indenture. If at any time after (a) the Owner Trustee shall have paid or
caused to be paid the principal of and interest on all the Certificates
outstanding hereunder, as and when the same shall have become due and payable,
or (b) the Owner Trustee shall have delivered to the Indenture Trustee for
cancellation all Certificates theretofore authenticated (other than any
Certificates which shall have been destroyed, lost or stolen and which shall
have been replaced or paid as provided in Section 2.07 hereof) or (c) (i) all
such Certificates not theretofore delivered to the Indenture Trustee for
cancellation shall have become due and payable, or are by their terms to
become due and payable within one year or are to be called for prepayment
within one year under arrangements satisfactory to the Indenture Trustee for
the giving of notice of prepayment by the Indenture Trustee in the name and at
the expense of the Owner Trustee, and (ii) the Owner Trustee shall have
irrevocably deposited or caused to be deposited with the Indenture Trustee as
trust funds the entire amount in cash (other than moneys repaid by the
Indenture Trustee or any paying agent to the Owner Trustee in accordance with
Section 14.04 hereof) or Government obligations maturing as to principal and
interest in such amounts and at such times as will insure the availability of
cash sufficient to pay at maturity all such Certificates not theretofore
delivered to the Indenture Trustee for cancellation, including principal and
interest due or to become due to such date of maturity as the case may be, and
if, in any such case, the Owner Trustee shall also pay or cause to be paid all
other sums then payable hereunder by the Owner Trustee, then this Indenture
shall cease to be of further effect (except in the case of (c) above as to (A)
rights of registration of transfer and exchange, and the Owner Trustee's right
of optional prepayment pursuant to Section 6.02(a)(ii) hereof, (B)
substitution of mutilated, defaced, destroyed, lost or stolen Certificates,
(C) rights of Holders to receive payments of principal thereof and interest
thereon, upon the original stated due dates therefor (but not upon
acceleration), (D) the rights, obligations, indemnities and immunities of the
Indenture Trustee hereunder and (E) the rights of the Holders as beneficiaries
hereof with respect to the property so deposited with the Indenture Trustee
payable to all or any of them), and the Indenture Trustee, on demand of the
Owner Trustee accompanied by an Officer's Certificate and an Opinion of
Counsel (covering such matters reasonably requested by, and in form and
substance reasonably satisfactory to, the Indenture Trustee) and at the cost
and expense of the Owner Trustee, shall execute proper instruments
acknowledging such satisfaction of and discharging this Indenture. The Owner
Trustee agrees to reimburse and indemnify the Indenture Trustee for any costs
or expenses thereafter reasonably and properly incurred and to compensate the
Indenture Trustee for any services thereafter reasonably and properly rendered
by the Indenture Trustee in connection with this Indenture or the
Certificates.
Upon (or at any time after) payment in full to the Indenture Trustee,
as trust funds, of the principal of and interest on and Make-Whole Premium, if
any, and all other amounts due hereunder and under all Certificates and
provided that there shall then be no other amounts due to the Indenture
Trustee hereunder or under the Participation Agreement or otherwise secured
hereby, the Owner Trustee shall direct the Indenture Trustee to execute and
deliver to or as directed in writing by the Owner Trustee an appropriate
instrument releasing the Aircraft from the Lien of this Indenture and
releasing the Indenture Documents from the assignment thereof hereunder, and
the Indenture Trustee shall execute and deliver such instrument as aforesaid
and, at the Owner Trustee's expense, will execute and deliver such other
instruments or documents as may be reasonably requested by the Owner Trustee
to give effect to such release; provided, however, that this Indenture and the
trusts created hereby shall terminate earlier and this Indenture shall be of
no further force or effect upon any sale or other final disposition by the
Indenture Trustee of all property forming a part of the Trust Indenture Estate
and the final distribution by the Indenture Trustee of all moneys or other
property or proceeds constituting part of the Trust Indenture Estate in
accordance with the terms hereof. Except as aforesaid otherwise provided, this
Indenture and the trusts created hereby shall continue in full force and
effect in accordance with the terms hereof.
Section 14.02. Application by Indenture Trustee of Funds Deposited
for Payment of Certificates. Subject to Section 14.04 hereof, all moneys
deposited with the Indenture Trustee pursuant to Section 14.01 hereof shall be
held in trust and applied by it to the prompt payment, either directly or
through any Paying Agent, to the Holders of the particular Certificates for
the payment or prepayment of which such moneys have been deposited with the
Indenture Trustee, of all sums due and to become due thereon for principal,
interest and Make-Whole Premium, if any, but such money need not be segregated
from other funds except to the extent required by law.
Section 14.03. Repayment of Moneys Held by Paying Agent. Upon the
satisfaction and discharge of this Indenture all moneys then held by any
Paying Agent under the provisions of this Indenture shall, upon demand of the
Owner Trustee, be repaid to it or paid to the Indenture Trustee and thereupon
such Paying Agent shall be released from all further liability with respect to
such moneys.
Section 14.04. Transfer of Moneys Held by Indenture Trustee and
Paying Agent Unclaimed for Two Years and Eleven Months. Any moneys deposited
with or paid to the Indenture Trustee or any Paying Agent for the payment of
the principal of or interest or Make-Whole Premium on any Certificate and not
applied but remaining unclaimed for two years and eleven months after the date
upon which such principal, interest or Make-Whole Premium shall have become
due and payable, shall, unless otherwise required by mandatory provisions of
applicable escheat or abandoned or unclaimed property law, be paid to the
Owner Trustee (or, if the Trust Agreement shall no longer be in effect, to the
Owner Participant) by the Indenture Trustee or such Paying Agent and the
Holder of such Certificate, as a general unsecured creditor, shall, unless
otherwise required by mandatory provisions of applicable escheat or abandoned
or unclaimed property laws, thereafter look only to the Owner Trustee (or the
Owner Participant) for any payment which such Holder may be entitled to
collect, and all liability of the Indenture Trustee, or any Paying Agent with
respect to such moneys shall thereupon cease.
ARTICLE XV
MISCELLANEOUS
Section 15.01. Capacity in Which Acting. Each of SSB (or its
permitted successors or assigns) and the Indenture Trustee acts hereunder not
in its individual capacity but solely as trustee except as expressly provided
herein and in the other Operative Documents, and, in the case of SSB (or its
permitted successors or assigns), in the Trust Agreement.
Section 15.02. No Legal Title to Trust Indenture Estate in Holders.
No Holder shall have legal title to any part of the Trust Indenture Estate.
No transfer, by operation of law or otherwise, of any Certificate or other
right, title and interest of any Holder in and to the Trust Indenture Estate
or hereunder shall operate to terminate this Indenture or entitle such Holder
or any successor or transferee of such Holder to an accounting or to the
transfer to it of legal title to any part of the Trust Indenture Estate.
Section 15.03. Sale of Trust Indenture Estate by Indenture Trustee is
Binding. Any sale or other conveyance of all or any part of the Trust
Indenture Estate by the Indenture Trustee made pursuant to the terms of this
Indenture or of the Lease shall bind the Lessee, the Owner Trustee, the
Holders and the Owner Participant and shall be effective to transfer or convey
all right, title and interest of the Indenture Trustee, the Owner Trustee, the
Owner Participant and such Holders therein and thereto. No purchaser or other
grantee shall be required to inquire as to the authorization, necessity,
expediency or regularity of such sale or conveyance or as to the application
of any sale or other proceeds with respect thereto by the Indenture Trustee.
Section 15.04. Indenture for Benefit of Owner Trustee, Indenture
Trustee, Owner Participant, Holders and Liquidity Providers. Nothing in this
Indenture, whether express or implied, shall be construed to give to any
person other than SSB, the Owner Trustee, the Lessee, the Indenture Trustee,
as trustee and in its individual capacity, the Owner Participant, each
Liquidity Provider and the Holders any legal or equitable right, remedy or
claim under or in respect of this Indenture. Upon termination of this
Indenture pursuant to Article XIV hereof, the Indenture Trustee in connection
with the satisfaction of the Indenture shall return to the Owner Trustee all
property (and related documents and instruments) constituting or evidencing
the Trust Indenture Estate.
Section 15.05. No Action Contrary to the Lessee's Rights Under the
Lease. Notwithstanding any of the provisions of this Indenture or the Trust
Agreement to the contrary, so long as no Event of Default shall have occurred
and be continuing, neither the Indenture Trustee nor the Owner Trustee will
take any affirmative acts that interfere with the peaceful and quiet
possession and enjoyment of the Aircraft by the Lessee.
Section 15.06. Notices. Unless otherwise expressly specified or
permitted by the terms hereof, all notices, requests, demands, authorizations,
directions, consents, waivers or documents provided or permitted by this
Indenture to be made, given, furnished or filed shall be in writing, mailed by
certified mail, postage prepaid, or by confirmed telecopy, and (a) if to the
Owner Trustee, addressed to it c/o State Street Bank and Trust Company, Two
International Place, 4th Floor, Boston, Massachusetts 02110 (telephone: (617)
664-5526, facsimile: (617) 664-5371), Attention: Corporate Trust Department
(with a copy to the Owner Participant at the address provided for notice
pursuant to Section 14.01 of the Participation Agreement), (b) if personally
delivered to the Indenture Trustee, addressed to it at its office at 79 South
Main Street, Salt Lake City, Utah 84111 (telephone: (801) 246-5630, facsimile:
(801) 246-5053), Attention: Corporate Trust Department or (c) if to the Owner
Participant, a Liquidity Provider or the Lessee, addressed to such party at
such address as such party shall have furnished by notice to the Owner Trustee
and the Indenture Trustee, or, until an address is so furnished, addressed to
the address of such party if any, set forth in Section 14.01 of the
Participation Agreement. Any party hereto may change the address to which
notices to such party will be sent by giving notice of such change to the
other parties to this Indenture.
Where this Indenture provides for notice to Holders, such notice
shall be sufficiently given (unless otherwise expressly provided herein) if in
writing and mailed, first-class postage prepaid, to each Holder entitled
thereto, at such Holder's last address as it appears in the Register. In any
case where notice to Holders is given by mail, neither the failure to mail
such notice, nor any defect in any notice so mailed, to any particular Holder
shall affect the sufficiency of such notice with respect to other Holders.
Where this Indenture provides for notice in any manner, such notice may be
waived in writing by the person entitled to receive such notice, either before
or after the event, and such waiver shall be the equivalent of such notice.
Waivers of notice by Holders shall be filed with the Indenture Trustee, but
such filing shall not be a condition precedent to the validity of any action
taken in reliance upon such waiver.
In case, by reason of the suspension of or irregularities in regular
mail service, it shall be impracticable to mail notice to the Owner Trustee
and Holders when such notice is required to be given pursuant to any provision
of this Indenture, then any manner of giving such notice as shall be
satisfactory to the Indenture Trustee shall be deemed to be a sufficient
giving of such notice.
Section 15.07. Officer's Certificates and Opinions of Counsel;
Statements to Be Contained Therein. Upon any application or demand by the
Lessee or the Owner Trustee to the Indenture Trustee to take any action under
any of the provisions of this Indenture, the Lessee or the Owner Trustee, as
the case may be, shall furnish to the Indenture Trustee upon request (a) an
Officer's Certificate stating that all conditions precedent provided for in
this Indenture relating to the proposed action have been complied with and
that the proposed action is in conformity with the requirements of this
Indenture, and (b) 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 demand as to which the furnishing
of such documents is specifically required by any provision of this Indenture
relating to such particular application or demand, no additional certificate
or opinion need be furnished.
Any certificate, statement or opinion of an officer of SSB may be
based, insofar as it relates to legal matters, upon a certificate or opinion
of or representations by counsel, unless such officer knows that the
certificate or opinion or representations with respect to the matters upon
which his certificate, statement or opinion may be based as aforesaid are
erroneous, or in the exercise of reasonable care should know that the same are
erroneous. Any certificate, statement or opinion of counsel may be based,
insofar as it relates to factual matters information with respect to which is
in the possession of the Lessee or SSB, upon the certificate, statement or
opinion of or representations by an officer or officers of the Lessee or SSB,
as the case may be, unless such counsel knows that the certificate, statement
or opinion or representations with respect to the matters upon which his
certificate, statement or opinion may be based as aforesaid are erroneous, or
in the exercise of reasonable care should know that the same are erroneous.
Any certificate, statement or opinion of an officer of the Lessee or
SSB or of counsel thereto may be based, insofar as it relates to accounting
matters, upon a certificate or opinion of or representations by an accountant
or firm of accountants employed by the Lessee or the Owner Trustee, as the
case may be, unless such officer or counsel, as the case may be, knows that
the certificate or opinion or representations with respect to the accounting
matters upon which his certificate, statement or opinion may be based as
aforesaid are erroneous, or in the exercise of reasonable care should know
that the same are erroneous.
Any certificate or opinion of any independent firm of public
accountants filed with the Indenture Trustee shall contain a statement that
such firm is independent.
Section 15.08. Severability. Any provision of this Indenture which
is prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and any
such prohibition or unenforceability in any jurisdiction shall not invalidate
or render unenforceable such provision in any other jurisdiction.
Section 15.09. No Oral Modifications or Continuing Waivers. No
terms or provisions of this Indenture or the Certificates may be changed,
waived, discharged or terminated orally, but only by an instrument in writing
signed by the party or other person against whom enforcement of the change,
waiver, discharge or termination is sought; and any waiver of the terms hereof
or of any Certificate shall be effective only in the specific instance and for
the specific purpose given.
Section 15.10. Successors and Assigns. All covenants and agreements
contained herein shall be binding upon, and inure to the benefit of, each of
the parties hereto and the successors and permitted assigns of each, all as
herein provided. Any request, notice, direction, consent, waiver or other
instrument or action by any Holder shall bind the successors and assigns of
such Holder. This Indenture and the Trust Indenture Estate shall not be
affected by any amendment or supplement to the Trust Agreement or by any other
action taken under or in respect of the Trust Agreement, except that each
reference in this Indenture to the Trust Agreement shall mean the Trust
Agreement as amended and supplemented from time to time to the extent
permitted hereby and thereby.
Section 15.11. Headings. The headings of the various Articles and
Sections herein and in the table of contents hereto are for the convenience of
reference only and shall not define or limit any of the terms or provisions
hereof.
Section 15.12. Normal Commercial Relations. Anything contained in
this Indenture to the contrary notwithstanding, the Owner Participant, the
Indenture Trustee and any Holder, or any bank or other affiliate of any such
party, may conduct any banking or other financial transactions, and have
banking or other commercial relationships, with the Lessee fully to the same
extent as if this Indenture were not in effect, including without limitation
the making of loans or other extensions of credit to the Lessee for any
purpose whatsoever, whether related to any of the transactions contemplated
hereby or otherwise.
Section 15.13. Governing Law; Counterparts. THIS INDENTURE AND
EACH CERTIFICATE SHALL IN ALL RESPECTS BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK, INCLUDING ALL MATTERS OF
CONSTRUCTION, VALIDITY AND PERFORMANCE. This Indenture may be executed by the
parties hereto in separate counterparts, each of which when so executed and
delivered shall be an original, but all such counterparts shall together
constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed this 28th day of May, 1997 by their respective officers
thereunto duly authorized and acknowledge that this Indenture has been made
and delivered in the City of New York, and this Indenture shall be effective
only upon such execution and delivery.
STATE STREET BANK AND TRUST COMPANY
OF CONNECTICUT, NATIONAL ASSOCIATION,
not in its individual capacity,
except as specifically set forth herein
but solely as Owner Trustee
By
------------------------------------
Name: Paul D. Allen
Title: Vice President
FIRST SECURITY BANK,
NATIONAL ASSOCIATION,
not in its individual capacity,
but solely as Indenture Trustee
By
------------------------------------
Name: Greg A. Hawley
Title: Vice President
Exhibit A
to
Trust Indenture and Security Agreement
Indenture and Security Agreement Supplement No. ___
Indenture and Security Agreement Supplement No. ___ (Federal Express
Corporation Trust No. N671FE) dated ________, ____, of STATE STREET BANK AND
TRUST COMPANY OF CONNECTICUT, NATIONAL ASSOCIATION, a national banking
association, not in its individual capacity but solely as owner trustee
(herein called the "Owner Trustee") under the Trust Agreement dated as of May
1, 1997 (the "Trust Agreement") between State Street Bank and Trust Company of
Connecticut, National Association and the Owner Participant named therein.
W I T N E S S E T H :
-------------------
WHEREAS, the Trust Agreement provides for the execution and delivery
of this Indenture and Security Agreement Supplement which shall particularly
describe the Aircraft and any Replacement Airframe or Replacement Engine
included in the property covered by the Trust Agreement.
WHEREAS, the Trust Indenture and Security Agreement (Federal Express
Corporation Trust No. N671FE) dated as of May 1, 1997 (the "Indenture") between
the Owner Trustee and First Security Bank, National Association (herein called
the "Indenture Trustee") provides for the execution and delivery of an
Indenture and Security Agreement Supplement substantially in the form of this
Indenture and Security Agreement Supplement No. __, which Supplement shall
particularly describe the Aircraft included in the Trust Indenture Estate, and
shall specifically mortgage such Aircraft to the Indenture Trustee.
(1)WHEREAS, the Indenture relates to the Aircraft and the Engines
described in the following paragraph and a counterpart of the Indenture is
attached to and made a part of this Indenture and Security Agreement
Supplement No. 1, and this Indenture and Security Agreement Supplement No. 1,
together with such attachment, is being filed for recordation on or promptly
after the date of this Supplement No. 1 with the Federal Aviation
Administration as one document.
- ------------
(1) This recital is to be included only in the first Indenture Supplement.
(2)Whereas, the Indenture and Indenture and Security Agreement
Supplement No. ___ dated _________________, ______ (the Indenture being
attached to and made a part of such Indenture and Security Agreement
Supplement and filed therewith) have been duly recorded pursuant to Subtitle
VII of Title 49 of the United States Code, on ____________, _____, as one
document and have been assigned Conveyance No. _________.
- ------------
(2) This recital is not to be included in the first Indenture Supplement.
NOW, THEREFORE, this Supplement witnesseth, that, to secure the prompt
payment of the principal of and Make-Whole Premium, if any, and interest on,
and all other amounts due with respect to, all Outstanding Certificates under
the Indenture and all other amounts due hereunder and the performance and
observance by the Owner Trustee of all the agreements, covenants and
provisions for the benefit of the Holders contained in the Indenture, in the
Lease, in the Participation Agreement and the Certificates, and the prompt
payment of any and all amounts from time to time owing under the Participation
Agreement by the Owner Trustee, the Owner Participant or the Lessee to the
Holders and for the uses and purposes and subject to the terms and provisions
of the Indenture and the Certificates, and in consideration of the premises
and of the covenants contained in the Indenture, and of the purchase of the
Certificates by the Holders, and of the sum of $1 paid to the Owner Trustee by
the Indenture Trustee at or before the delivery of the Indenture, the receipt
of which is hereby acknowledged, the Owner Trustee has granted, bargained,
sold, assigned, transferred, conveyed, mortgaged, pledged, granted a security
interest in, and confirmed, and does hereby grant, bargain, sell, assign,
transfer, convey, mortgage, pledge, grant a security interest in, and confirm,
unto the Indenture Trustee, its successors and assigns, in trust for the equal
and ratable security and benefit of the Holders, in the trust created by the
Indenture, and subject to all of the terms, conditions, provisions and
limitations set forth in the Indenture, a first priority security interest in
and mortgage lien on all estate, right, title and interest of the Owner Trustee
in, to and under the following described property:
Airframe
One (1) Airframe identified as follows:
FAA Manufacturer's
Registration Serial
Manufacturer Model Number Number
- ------------ ----- ------------ --------------
together with all appliances, equipment, instruments and accessories
(including, without limitation, radio and radar) from time to time belonging
thereto, owned by the Owner Trustee and installed in or appurtenant to said
aircraft.
AIRCRAFT ENGINES
Two (2) aircraft engines, each such engine having 750 or more rated takeoff
horsepower or the equivalent thereof, identified as follows:
Manufacturer's
Serial
Manufacturer Model Number
- ------------ ----- --------------
together with all equipment and accessories belonging thereto, by whomsoever
manufactured, owned by the Owner Trustee and installed in or appurtenant to
said aircraft engines.
Together with all substitutions, replacements and renewals of the
property described above, and all property which shall hereafter become
physically attached to or incorporated in the property described above,
whether the same are now owned by the Owner Trustee or shall hereafter be
acquired by it.
As further security for the obligations referred to above and secured
by the Indenture and hereby, the Owner Trustee has granted, bargained, sold,
assigned, transferred, conveyed, mortgaged, pledged and confirmed, and does
hereby grant, bargain, sell, assign, transfer, convey, mortgage, pledge and
confirm, unto the Indenture Trustee, its successors and assigns, for the
security and benefit of the Holders, in the trust created by the Indenture,
and subject to all of the terms, conditions, provisions and limitations set
forth in the Indenture, all of the estate, right, title and interest of the
Owner Trustee in, to and under the Lease Supplement (other than Excepted
Payments, if any) covering the property described above.
TO HAVE AND TO HOLD all and singular the aforesaid property unto the
Indenture Trustee, its successors and assigns, for the benefit and security of
the Holders for the uses and purposes and subject to the terms and provisions
set forth in the Indenture.
This Supplement shall be construed as supplemental to the Indenture
and shall form a part thereof, and the Indenture is hereby incorporated by
reference herein and is hereby ratified, approved and confirmed.
This Supplement is being delivered in the State of New York.
AND, FURTHER, the Owner Trustee hereby acknowledges that the
Aircraft/Engines referred to in this Supplement and the aforesaid Lease
Supplement has been delivered to the Owner Trustee and is included in the
property of the Owner Trustee and covered by all the terms and conditions of
the Trust Agreement, subject to the Lien of the Indenture.
IN WITNESS WHEREOF, the Owner Trustee has caused this Supplement to
be duly executed as of the date first written above by one of its officers
thereunto duly authorized.
STATE STREET BANK AND TRUST COMPANY
OF CONNECTICUT, NATIONAL ASSOCIATION,
not in its individual capacity,
except as specifically set forth herein
but solely as Owner Trustee
By
------------------------------------
Name: Paul D. Allen
Title: Vice President
Exhibit B
to
Trust Indenture and Security Agreement
[Form of Certificate]
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY
NOT BE SOLD OR OFFERED FOR SALE IN CONTRAVENTION OF SAID ACT
No. ______ $_____________
EQUIPMENT TRUST CERTIFICATE
(Federal Express Corporation Trust No. N671FE)
STATE STREET BANK AND TRUST COMPANY OF CONNECTICUT,
NATIONAL ASSOCIATION
not in its individual capacity but solely as
OWNER TRUSTEE UNDER TRUST AGREEMENT
(Federal Express Corporation Trust No. N671FE)
dated as of May 1, 1997
SERIES ___
Interest Rate Maturity
- ------------- --------
State Street Bank and Trust Company of Connecticut, National
Association, a national banking association, not in its individual capacity
but solely as Owner Trustee (herein in such capacity called the "Owner
Trustee") under that certain Trust Agreement (Federal Express Corporation
Trust No. N671FE) dated as of May 1, 1997, between the Owner Participant named
therein and State Street Bank and Trust Company of Connecticut, National
Association (herein as such Trust Agreement may be amended or supplemented
from time to time called the "Trust Agreement"), hereby promises to pay to
FIRST SECURITY BANK, NATIONAL ASSOCIATION, as Subordination Agent, or its
registered assigns, the principal sum of ________________ _______________
Dollars, payable as set forth below for the Maturity specified above, in such
coin or currency of the United States of America as at the time of payment
shall be legal tender for the payment of public and private debts, and to pay
interest on the principal outstanding from time to time, semiannually on each
January 15 and July 15, on said principal sum in like coin or currency at the
rate per annum set forth above from the January 15 or the July 15, as the case
may be, next preceding the date of this Certificate to which interest on the
Certificates has been paid or duly provided for, unless the date hereof is a
date to which interest on the Certificates has been paid or duly provided for,
in which case from the date of this Certificate. Notwithstanding the
foregoing, if the date hereof is after any January 15 or July 15 and before the
following January 15 or July 15, as the case may be, this Certificate shall
bear interest from such January 15 or July 15; provided that, if the Owner
Trustee shall default in the payment of interest due on such January 15 or
July 15, then this Certificate shall bear interest from the next preceding
January 15 or July 15 to which interest on this Certificate has been paid or
duly provided for. The interest so payable on any January 15 or July 15 will,
except as otherwise provided in the Indenture referred to below, be paid to
the person in whose name this Certificate is registered at the close of
business on the January 15 or July 15 preceding such January 15 or July 15,
whether or not such day is a Business Day.
This Certificate shall bear interest at the Past Due Rate on any
principal hereof and on any other amount payable hereunder or under the
Indenture which shall not be paid in full when due (whether at stated
maturity, by acceleration, by mandatory prepayment or otherwise), for the
period from and including the date thereof to but excluding the date the same
is paid in full, payable from time to time on demand of the Indenture Trustee.
Principal and interest and other amounts due hereunder shall be
payable at the office or agency of First Security Bank, National Association
(the "Indenture Trustee") maintained for such purpose in immediately available
funds prior to 10:30 A.M. (New York time) on the due date thereof and the
Indenture Trustee shall remit all such amounts received by it to the Holders
at such account or accounts at such financial institution or institutions as
the Holders shall have designated to the Indenture Trustee in writing, in
immediately available funds, such payment to be made if the payment was
received prior to 10:30 A.M. New York time by the Indenture Trustee on any
Business Day, by 12:00 noon New York time on such Business Day; otherwise, the
Indenture Trustee shall make payment promptly, but not later than 11:00 A.M.
New York time on the next succeeding Business Day; provided that, at the
option of the Indenture Trustee or its Paying Agent, interest may be paid by
mailing a check therefor payable to or upon the written order of the
registered holder entitled thereto at his last address as it appears on the
Register. If any amount payable under this Certificate, or under the
Indenture, falls due on a day that is not a Business Day, then such sum shall
be payable on the next succeeding Business Day, without (provided that payment
is made on such next succeeding Business Day) additional interest thereon for
the period of such extension.
State Street Bank and Trust Company of Connecticut, National
Association and First Security Bank, National Association are not acting
individually hereunder, but solely as Owner Trustee and Indenture Trustee,
respectively.
Any Person, other than the Subordination Agent, who is acquiring the
Certificates will be deemed to represent and warrant that (i) no assets of an
employee benefit plan subject to Title I of ERISA or an individual retirement
account or plan subject to Section 4975 of the Code, or any trust established
under any such plan or account, have been used to acquire or hold any of the
Certificates, or (ii) that one or more administrative or statutory exemptions
from the prohibited transaction rules under Section 406 of ERISA and Section
4975 of the Code applies to its purchase and holding of the Certificates such
that its purchase and holding of the Certificates will not result in a
non-exempt prohibited transaction under Section 406 of ERISA and Section 4975
of the Code.
This Certificate is one of a duly authorized issue of Certificates
issued and to be issued under the Trust Indenture and Security Agreement
(Federal Express Corporation Trust No. N671FE) dated as of May 1, 1997 (herein
as amended, supplemented or modified from time to time called the "Indenture")
between the Owner Trustee and the Indenture Trustee, designated as Equipment
Trust Certificates (Federal Express Corporation Trust No. N671FE) limited in
aggregate initial principal amount to $62,317,000 consisting of the following
aggregate principal amounts of Certificates with the interest rates per annum
and Maturities shown:
Initial
Aggregate
Principal
Series Maturity Amount Interest Rate
------ -------- ----------- -------------
A January 15, 2017 $33,352,000 7.50%
B January 15, 2018 $12,507,000 7.52%
C January 15, 2014 $16,458,000 7.65%
Reference is made to the Indenture and all supplements and amendments
thereto (a copy of which is on file with the Indenture Trustee at its
principal corporate trust office) for a more complete statement of the terms
and provisions thereof, including a statement of the properties conveyed,
pledged and assigned thereby, the nature and extent of the security, the
respective rights of the Owner Trustee, the Owner Participant, the Lessee, the
Indenture Trustee and the Holders, and the terms upon which the Certificates
are, and are to be, executed and delivered, to all of which terms and
conditions in the Indenture each Holder hereof agrees by its acceptance of
this Certificate.
Capitalized terms not otherwise defined herein shall have the
meanings given to them in the Indenture.
The principal amounts of the Certificates are payable as follows. The
Certificates are subject to redemption in part, pro rata (based on the face
amount thereof), in each case through mandatory sinking fund redemptions
providing for the redemption on the Sinking Fund Redemption Dates of the
aggregate principal amounts set forth below, together with interest accrued
thereon to the applicable Sinking Fund Redemption Date, but without Make-Whole
Premium.
Principal Amount
Series A Series B Series C
Certificates Certificates Certificates
Sinking Fund with a Maturity of with a Maturity of with a Maturity of
Redemption Date January 15, 2017 January 15, 2018 January 15, 2014
- ---------------- ------------------ ------------------ ------------------
July 15, 1997 0 0 0
January 15, 1998 251,178 250,140 115,520
July 15, 1998 415,862 0 0
January 15, 1999 131,798 250,140 333,520
July 15, 1999 535,242 0 0
January 15, 2000 121,651 250,140 333,520
July 15, 2000 545,389 0 0
January 15, 2001 213,402 250,140 333,520
July 15, 2001 453,638 0 0
January 15, 2002 411,194 250,140 333,520
July 15, 2002 255,846 0 0
January 15, 2003 667,040 250,140 385,819
July 15, 2003 0 0 0
January 15, 2004 667,040 250,140 754,137
July 15, 2004 0 0 0
January 15, 2005 667,040 250,140 859,087
July 15, 2005 0 0 0
January 15, 2006 667,040 250,140 829,358
July 15, 2006 0 0 0
January 15, 2007 667,040 250,140 3,774,211
July 15, 2007 0 0 0
January 15, 2008 667,040 250,140 670,131
July 15, 2008 0 0 0
January 15, 2009 667,040 250,140 1,727,695
July 15, 2009 0 0 0
January 15, 2010 667,040 250,140 1,745,042
July 15, 2010 0 0 0
January 15, 2011 667,040 2,755,586 169,963
July 15, 2011 0 0 0
January 15, 2012 667,040 3,067,959 0
July 15, 2012 0 0 0
January 15, 2013 3,511,558 1,433,450 0
July 15, 2013 0 0 0
January 15, 2014 1,240,715 0 4,092,957
July 15, 2014 0 0 0
January 15, 2015 5,752,472 0 0
July 15, 2015 0 0 0
January 15, 2016 6,200,717 0 0
July 15, 2016 0 0 0
January 15, 2017 6,640,938 42,957 0
January 15, 2018 0 1,955,228 0
Except as expressly provided in the Indenture, all payments of
principal, Make-Whole Premium, if any, and interest and other amounts to be
made to the Holder hereof by or at the behest of the Owner Trustee hereunder
or under the Indenture shall be made only from the income and proceeds from
the Lessor's Estate to the extent included in the Trust Indenture Estate and
only to the extent that the Owner Trustee shall have sufficient income or
proceeds from the Lessor's Estate to the extent included in the Trust
Indenture Estate to enable the Indenture Trustee to make such distributions in
accordance with the terms of the Indenture; provided that under the Lease, the
Lessee is obligated to pay or cause to be paid, to the extent such payments
are not required to be made from the assets subject to the Lien of this
Indenture or the income and proceeds received by the Indenture Trustee
therefrom, any net loss arising from the investment of funds held by the
Indenture Trustee which but for an Event of Default would be payable to
Lessee, and each Holder hereof, by its acceptance of this Certificate, agrees
that it will (except as aforesaid) look solely to the income and proceeds from
the Trust Indenture Estate to the extent available for distribution to the
Holder hereof as provided above and that neither the Owner Participant, the
Owner Trustee, State Street Bank and Trust Company of Connecticut, National
Association nor the Indenture Trustee is personally liable to the Holder
hereof for any amounts payable or any liability under this Certificate or
under the Indenture, except as expressly provided in the Indenture, in the
case of State Street Bank and Trust Company of Connecticut, National
Association, the Owner Trustee and the Indenture Trustee.
The Certificates are subject to prepayment in the following
circumstances at the price determined as set forth below.
(i) If an Event of Loss occurs with respect to the Airframe or with
respect to the Airframe and the Engines or engines then installed on the
Airframe (unless pursuant to Section 11.03 of the Lease and Section 9.08 of
the Indenture replacement equipment is substituted therefor).
(ii) If the Lessee, pursuant to Section 4.02(a) of the Lease, gives
notice of purchase of the Aircraft (and the Lessee shall not have revoked
such notice or effected an assumption of the Certificates as provided in
Section 2.12 of the Indenture).
(iii) If the Owner Participant or the Owner Trustee on behalf of the
Owner Participant gives notice of prepayment to the Indenture Trustee
pursuant to Section 8.02 of the Indenture.
(iv) If the Lessee, pursuant to Section 10.01 of the Lease, gives
notice of a voluntary termination for obsolescence or surplus, but subject
to Section 6.02(c) of Indenture.
(v) Pursuant to Section 15.01 of the Participation Agreement in
connection with a Refinancing of the Certificates.
(vi) As contemplated by Section 2.16 of the Indenture and Section
3.05(b) of the Participation Agreement if the Delivery Date has not
occurred on or prior to the Cut-Off Date.
(vii) At the option of the Owner Trustee with the prior written
consent of the Lessee and the Owner Participant upon not less than 25 days'
prior written notice.
In the case of a prepayment of the Certificates pursuant to clauses
(ii), (iv) and (v) above, the Lessee, in accordance with and subject to the
terms (including timing of notice) of Section 4.02(a) or 10.01 of the Lease or
Article 15 of the Participation Agreement, as the case may be, shall give
irrevocable (subject to Section 6.02(c) of the Indenture) written notice to
the Owner Trustee and the Indenture Trustee and to the Holders of all of the
Certificates specifying the Business Day on which the Owner Trustee is
directed to prepay the Certificates. In the case of a prepayment pursuant to
clause (i) above, the Certificates shall be prepaid on the Loss Payment Date
(as defined in Section 11.02 of the Lease). In the case of a prepayment
pursuant to clause (iii) above, the Certificates shall be prepaid on the date
designated in the notice of prepayment required by Section 8.02 of the
Indenture. In the case of a prepayment of the Certificates pursuant to
clauses (ii) and (iv) above, the Certificates shall be prepaid in full on the
Termination Date. In the case of a prepayment of the Certificates pursuant to
clause (v) above, the Certificates shall be prepaid on the effective date of
the Refinancing. In the case of a prepayment of the Certificates pursuant to
clause (vi) above, the Certificates shall be prepaid on the 15th day following
the Cut-Off Date. In the case of a prepayment of the Certificates pursuant to
clause (vii) above, the Certificates shall be prepaid on the date designated
in the notice referred to therein. The day on which the Certificates are to
be prepaid is herein referred to as the "Prepayment Date". On or prior to the
Prepayment Date, immediately available funds shall be deposited with the
Indenture Trustee in an amount in respect of the Certificates equal to:
(1) (i) if such prepayment is made under any provision of Section
6.02 of the Indenture on or after the applicable Premium Termination Date,
or (ii) if such prepayment is made prior to the applicable Premium
Termination Date pursuant to clause (i), (iii) (if clause (i) of the first
sentence of Section 8.02(a) of the Indenture is applicable) or (vi) above,
the sum of (A) the aggregate principal amount of such Certificates then
Outstanding, (B) accrued interest on the Certificates to the Prepayment
Date and (C) all other aggregate sums due the Indenture Trustee under the
Indenture or under the Participation Agreement or the Lease, but excluding
any Make-Whole Premium or other premium or penalty, or
(2) if such prepayment is made prior to the applicable Premium
Termination Date pursuant to clause (ii), (iii) (if clause (ii) of the
first sentence of Section 8.02(a) of the Indenture is applicable), (iv),
(v) or (vii) above, the sum of the amounts specified in clauses (A), (B)
and (C) of the preceding clause (1) plus any Make-Whole Premium payable in
respect of all Certificates with respect to which the Premium Termination
Date therefor has not occurred
(the aggregate amount required to be paid pursuant to this sentence being
herein referred to as the "Prepayment Price").
If, in accordance with and subject to the satisfaction of the
conditions set forth in Section 7.11 of the Participation Agreement, the
Lessee shall assume all of the obligations of the Owner Trustee hereunder,
under the Certificates and all other Operative Agreements, the Owner
Participant and the Owner Trustee shall (except for prior acts) be released
and discharged from any further obligations hereunder and under the
Certificates and all other Operative Agreements (except any obligations that
have accrued prior to such assumption).
If an Indenture Event of Default under the Indenture shall occur and
be continuing, the principal of the Certificates may be declared due and
payable in the manner and with the effect provided in the Indenture. The
Indenture provides that in certain events such declaration and its
consequences may be waived the Majority in Interest of Holders. Any such
consent or waiver shall be conclusive and binding upon the Holder of this
Certificate and upon all future Holders and owners of this Certificate and any
Certificate that may be issued in exchange or substitution therefor, whether or
not any notation thereof is made upon this Certificate or such other
Certificates. Moreover, if, and only if, an Event of Default shall occur, the
Indenture Trustee may declare the Lease to be in default, and may, to the
exclusion of the Owner Trustee, exercise one or more of the remedies of the
Owner Trustee provided in the Lease.
The Owner Trustee or the Owner Participant may cure a default by the
Lessee under the Lease arising from the failure of the Lessee to make any
Basic Rent payments under the Lease, but the Owner Trustee and the Owner
Participant, collectively, may not cure more than three consecutive such
failures or more than six such failures in total. The Owner Trustee or the
Owner Participant may cure any other default by the Lessee in the performance
of its obligations under the Lease.
(A) If an Event of Default shall have occurred and be continuing for
more than 180 days or the Certificates shall have been accelerated or (B) an
Event of Default shall have occurred and be continuing for not more than 180
days and the Certificates shall not have been accelerated, the Owner
Participant (or the Owner Trustee on behalf of the Owner Participant) may:
(1) direct the Owner Trustee to cause the prepayment of all the
Outstanding Certificates by notifying the Indenture Trustee of such
election and depositing the sum of amounts contemplated by paragraph
"first" under Section 5.03 of the Indenture and the aggregate
Prepayment Price of all such Certificates with the Indenture Trustee
for distribution to the Holders; or
(2) purchase all of the Outstanding Certificates by paying to the
Indenture Trustee an amount equal to the aggregate unpaid principal
amount of all Outstanding Certificates, plus accrued interest on such
amount to the date of purchase and if such purchase occurs prior to
the Premium Termination Date for such Outstanding Certificate (in the
case of a purchase pursuant to clause (ii) of the first sentence of
Section 8.02(a) of the Indenture but not in the case of clause (i) of
Section 8.02(a) of the Indenture) any Make-Whole Premium applicable
to each Outstanding Certificate, plus all other sums due any Holder
or the Indenture Trustee under the Indenture, the Participation
Agreement or the Lease.
The right of the Holder hereof to institute an action for any remedy
under the Indenture is subject to certain restrictions specified in the
Indenture, except that the right of the Holder of this Certificate to receive
payment of the principal of and interest and Make-Whole Premium, if any, on
this Certificate on or after the respective due dates, or to institute suit
for the enforcement of any such payment, shall not be impaired or affected
without the consent of such Holder.
The Certificates are issuable only as registered Certificates without
coupons in denominations of $1,000 and integral multiples thereof. So long as
any of the Certificates remain Outstanding, the Indenture Trustee will
maintain an office or agency where the Certificates may be presented for
payment and a facility or agency in New York, New York where the Certificates
may be presented for registration of transfer and for exchange as provided in
the Indenture. As provided in the Indenture and subject to certain
limitations therein, this Certificate is transferable, and upon surrender of
this Certificate for registration of transfer at the principal corporate trust
office of the Indenture Trustee, or at the office or agency maintained for such
purposes, duly endorsed by, or accompanied by a written instrument of transfer
in form satisfactory to the Owner Trustee and the Indenture Trustee duly
executed by, the Holder or his attorney duly authorized in writing, one or
more new Certificates of the same Series and Maturity and interest rate and of
authorized denominations and for the same aggregate principal amount will be
issued to the designated transferee or transferees.
As provided in the Indenture and subject to certain limitations
therein, the Certificates are exchangeable for an equal aggregate principal
amount of Certificates of the same Series and Maturity and interest rate and
of authorized denominations, as requested by the Holder surrendering the same,
upon presentation thereof for such purpose at the principal corporate trust
office of the Indenture Trustee, or at an office or agency maintained for such
purpose.
No service charge shall be levied for any such registration of
transfer or exchange, but the Indenture Trustee may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection
therewith.
Prior to the due presentment for registration of transfer of this
Certificate, the Owner Trustee, the Indenture Trustee, any agent of the Owner
Trustee or the Indenture Trustee, the Paying Agent, if any, the Registrar and
the Lessee shall deem and treat the person in whose name this Certificate is
registered as the absolute owner hereof for all purposes whether or not this
Certificate is overdue, and neither the Owner Trustee, the Indenture Trustee
(nor any agent of the Owner Trustee or the Indenture Trustee), nor the Paying
Agent, if any, the Registrar nor the Lessee shall be affected by notice to the
contrary.
The indebtedness evidenced by this Certificate is, to the extent and
in the manner provided in the Indenture, subordinate and subject in right of
payment to the prior payment in full of the Secured Obligations (as defined in
the Indenture) in respect of [Series A Certificate](1), [Series A and Series B
Certificates](2) and this Certificate is issued subject to such provisions.
The Holder of this Certificate, by accepting the same, (a) agrees to and shall
be bound by such provisions, (b) authorizes and directs the Indenture Trustee
on such Holder's behalf to take such action as may be necessary or appropriate
to effectuate the subordination as provided in the Indenture and (c) appoints
the Indenture Trustee such Holder's attorney-in-fact for such purpose.(*)
- ------------
(1) To be inserted in the case of a Series B Certificate.
(2) To be inserted in the case of a Series C Certificate.
(*) To be inserted for each Certificate other than any Series A Certificate.
As provided in the Indenture, the Indenture and the Certificates
shall be construed in accordance with and governed by the laws of the State of
New York.
This Certificate shall not be secured by or be entitled to any
benefit under the Indenture or be valid or obligatory for any purpose unless
authenticated by the Indenture Trustee as evidenced by the manual signature of
one of its authorized officers on the certificate below.
IN WITNESS WHEREOF, the Owner Trustee has caused this Equipment Trust
Certificate (Federal Express Corporation Trust No. N671FE) to be duly executed
in its corporate name by its officer thereunto duly authorized.
Dated: May ___, 1997 STATE STREET BANK AND TRUST COMPANY OF
CONNECTICUT, NATIONAL ASSOCIATION,
not in its individual capacity,
but solely as Owner Trustee
By
------------------------------------
Name: Paul D. Allen
Title: Vice President
[FORM OF INDENTURE TRUSTEE'S CERTIFICATE OF AUTHENTICATION]
This is one of the Equipment Trust Certificates (Federal Express
Corporation Trust No. N671FE) referred to in the within mentioned Indenture.
Dated: May ___, 1997 FIRST SECURITY BANK, NATIONAL ASSOCIATION,
not in its individual capacity,
but solely as Indenture Trustee
By
------------------------------------
Name: Greg A. Hawley
Title: Vice President
SCHEDULE I
[Reserved]
SCHEDULE II
DEFINITIONS
(FEDERAL EXPRESS CORPORATION TRUST NO. N671FE)
GENERAL PROVISIONS
The following terms shall have the following meanings for all
purposes of the Operative Agreements (other than the Pass Through Agreement,
the Series Supplements, the Intercreditor Agreement and the Liquidity
Facilities) referred to below, unless otherwise defined in an Operative
Agreement or the context thereof shall otherwise require. In the case of any
conflict between the provisions of this Schedule and the provisions of any
Operative Agreement, the provisions of such Operative Agreement shall control
the construction of such Operative Agreement.
Unless the context otherwise requires, (i) references to agreements
shall be deemed to mean and include such agreements as amended and
supplemented from time to time, and (ii) references to parties to agreements
shall be deemed to include the successors and permitted assigns of such
parties.
DEFINED TERMS:
Additional Insured. As defined in Article 13 of the Lease.
Aeronautics Authority. As appropriate, the Federal Aviation
Administration and/or the Administrator of the Federal Aviation
Administration, any successor to the former United States Civil Aeronautics
Board, or any Person, governmental department, bureau, commission or agency
located in the United States succeeding to the functions of any of the
foregoing.
Affidavits. The affidavits of citizenship of the Owner Trustee and
the Owner Participant.
Affiliate. With respect to any Person, any other Person directly or
indirectly controlling, controlled by or under common control with such
Person. For the purposes of this definition, "control" (including "controlled
by" and "under common control with") shall mean the power, directly or
indirectly, to direct or cause the direction of the management and policies of
such Person whether through the ownership of voting securities or by contract
or otherwise. In no event shall the Owner Trustee or the Lessor be deemed an
Affiliate of the Owner Participant.
After-Tax Basis. A basis such that any payment to be received by a
Person shall be supplemented by a further payment to such Person so that the
sum of the two payments, after deduction of all Taxes resulting from the
receipt or accrual of such payments, shall be equal to the payment to be
received. In the case of amounts payable to the Lessor, the Owner Participant,
or any corporate Affiliate of the Owner Participant, it shall be presumed that
such Person is at all times subject to Federal income tax at the maximum
marginal rate generally applicable to corporations from time to time and
actual state, local and foreign income taxes.
Air Carrier. Any U.S. Air Carrier and any "foreign air carrier" (as
defined in the Transportation Code) as to which there is in force a permit
granted under Section 41302 of the Transportation Code.
Airbus Guaranty. The Guaranty to be dated the Delivery Date executed
by the Manufacturer and guaranteeing AVSA's Warranty Bill of Sale.
Aircraft. The Airframe to be sold by AVSA to the Owner Trustee as
provided in the Participation Agreement and to be leased under the Lease (or
any permitted substitute airframe thereunder) together with two Engines
(whether either is an initial Engine or a Replacement Engine) whether or not
any of such initial or Replacement Engines may from time to time be installed
on such Airframe or may be installed on any other airframe or on any other
aircraft, including any aircraft substituted pursuant to Section 11.03 of the
Lease. Prior to delivery of the initial Lease Supplement, references in the
Operative Agreements (including Section 3.05 of the Participation Agreement)
to Aircraft shall mean the Airbus A300F4-605R airframe bearing FAA
Registration Number N671FE and Manufacturer's serial number 778, together with
two General Electric CF6-80C2-A5F engines.
Airframe. The Airbus A300F4-605R aircraft (excluding the Engines or
engines from time to time installed thereon) to be leased by the Lessor to the
Lessee pursuant to the Lease and the initial Lease Supplement and having the
United States FAA Registration Number initially and manufacturer's serial
number specified in the initial Lease Supplement, including (i) all Parts in
respect thereof and (ii) any Replacement Airframe which may be substituted
pursuant to Section 11.03 of the Lease.
Ancillary Agreement. Any written agreement of the Lessee to which the
Lessor is a party or to which the Lessor has consented in writing entered into
on or prior to the Delivery Date or any date thereafter in connection with the
transactions contemplated by the Operative Agreements, as such agreement may
be amended and supplemented from time to time with the consent of the Lessor
and delivered to the Owner Trustee, the Indenture Trustee, the Pass Through
Trustee, the Subordination Agent, each Liquidity Provider and the Owner
Participant.
Ancillary Agreement I. The Ancillary Agreement I (Federal Express
Corporation Trust No. N671FE), dated the Certificate Closing Date, among the
Lessee, the Owner Trustee, not in its individual capacity, but solely as Owner
Trustee, the Owner Participant and the Indenture Trustee not in its individual
capacity, but solely as Indenture Trustee, as originally executed or as
amended, modified or supplemented with the consent of all the parties thereto.
Ancillary Agreement II. The Ancillary Agreement II (Federal Express
Corporation Trust No. N671FE), dated the Certificate Closing Date, among the
Lessee, the Owner Trustee, not in its individual capacity, but solely as Owner
Trustee, the Owner Participant and the Indenture Trustee not in its individual
capacity, but solely as Indenture Trustee, as originally executed or as
amended, modified or supplemented with the consent of all the parties thereto.
Application. The application for registration of the Aircraft with
the FAA in the name of the Owner Trustee.
Appraisal. The report prepared by BK Associates, Inc. and to be
delivered to the Owner Participant (with an abbreviated report to the Lessee)
on the Delivery Date pursuant to Section 4.02(h) of the Participation
Agreement.
Assignment and Assumption Agreement. Any agreement delivered in
compliance with Section 7.03(d) of the Participation Agreement.
Average Life Date. For any Certificate, the date which follows the
prepayment date by a period equal to the Remaining Weighted Average Life of
such Certificate.
AVSA. AVSA S.A.R.L., a societe a responsabilite limitee, organized
and existing under the laws of France.
AVSA Consent and Agreement. The Consent and Agreement dated as of
May 1, 1997, executed by AVSA.
AVSA's FAA Bill of Sale. The bill of sale for the Airframe on AC
Form 8050-2, or such other form as may be approved by the Aeronautics
Authority, executed by AVSA in favor of the Owner Trustee and to be dated the
Delivery Date.
AVSA's Warranty Bill of Sale. The full warranty bill of sale
covering the Aircraft (and specifically referring to each Engine) executed by
AVSA as owner of the Aircraft in favor of the Owner Trustee and to be dated
the Delivery Date.
Bankruptcy Code. The Federal Bankruptcy Code of 1978, as amended, and
any successor thereto.
Bankruptcy Default. An event specified in Section 16.01(e), (f) or
(g) of the Lease which either does or, with the giving of notice or lapse of
time or both, would constitute an Event of Default.
Basic Rent. The aggregate periodic rent payable for the Aircraft
throughout the Basic Term pursuant to Section 3.02 of the Lease, adjusted
pursuant to Article 3 of the Lease.
Basic Term. The period commencing at the beginning of the day on the
Delivery Date and ending at the end of the day on September 20, 2020, or such
earlier date on which the Lease shall be terminated as provided therein.
Beneficial Interest. The interest of the Owner Participant under the
Trust Agreement.
Business Day. Any day on which commercial banks are not authorized or
required to close in New York, New York, Memphis, Tennessee and the city in the
United States in which the office or agency is maintained by the Pass Through
Trustee for the payment of the Pass Through Certificates, and after the Lien
of the Indenture is discharged, Boston, Massachusetts.
Certificate Closing Date. The date of the closing with respect to the
purchase of Certificates by the Pass Through Trustee contemplated by Section
2.01(b) of the Participation Agreement.
Certificates. The Equipment Trust Certificates (Federal Express
Corporation Trust No. N671FE), issued by the Owner Trustee pursuant to the
Indenture and any certificate issued in exchange therefor or replacement
thereof pursuant to the Indenture.
Change in Tax Law. Any change to the Code or the Treasury regulations
promulgated thereunder or the publication of any revenue ruling, revenue
procedure or any informational release by the Internal Revenue Service or the
Department of Treasury either of which would change or would allow a change in
the tax assumptions or structure upon which the lease economics were based,
provided that the Owner Participant or the Lessee has notified the other party
of such change in writing prior to the Delivery Date.
Change in Tax Rate. Any amendment, modification, deletion, addition,
or change to the Code which is enacted into law after the Delivery Date which
changes the highest marginal statutory rate of Federal income tax applicable
to the Owner Participant (other than a change which is in the nature of a
minimum tax).
Citizen of the United States. A citizen of the United States as
defined in Section 40102(a)(15) of the Transportation Code, or any analogous
part of any successor or substituted legislation or regulation at the time in
effect.
Class A Liquidity Provider. Has the meaning specified in Section
1.01 of the Intercreditor Agreement.
Class B Liquidity Provider. Has the meaning specified in Section
1.01 of the Intercreditor Agreement.
Closings. The closing with respect to the acquisition of the Pass
Through Certificates by the Underwriters and the closing with respect to the
acquisition of Certificates by the Pass Through Trustee.
Code. Except as otherwise provided, the Internal Revenue Code of
1986, as amended from time to time.
Collateral Account. The deposit account established and maintained
pursuant to Section 2.13 of the Indenture.
Collateral Account Control Agreement. The Collateral Account Control
Agreement dated as of May 1, 1997 among State Street Bank and Trust Company,
the Indenture Trustee and the Owner Trustee.
Commitment. The amount of the Owner Participant's participation in
the Purchase Price required to be made available or paid as provided in
Section 3.02 of the Participation Agreement.
Consent and Agreement. The Consent and Agreement dated as of May 1,
1997 executed by the Manufacturer.
Consent and Guaranty. The Consent and Guaranty of the Manufacturer
attached to the Purchase Agreement.
Corporate Trust Administration. The Corporate Trust Administration
office of the Owner Trustee located at 750 Main Street, Hartford, Connecticut
06103, Attention: Corporation Trust Administration, or such other office at
which the Owner Trustee's corporate trust business shall be administered which
the Owner Trustee shall have specified by notice in writing to the Lessee, the
Owner Participant and the Indenture Trustee.
Corporate Trust Department. The Corporate Trust Department office of
the Indenture Trustee located at 79 South Main Street, Salt Lake City, Utah
84111, Attention: Corporate Trust Department, or such other office at which
the Indenture Trustee's corporate trust business shall be administered which
the Indenture Trustee shall have specified by notice in writing to the Lessee,
the Owner Participant and the Owner Trustee.
CRAF Program. Has the meaning specified in Section 7.01(f) of the
Lease.
Cut-Off Date. September 18, 1997.
Debt Portion. The amount specified as such on Schedule IV to the
Participation Agreement.
Debt Rate. The weighted average (based on Outstanding principal
amount) rate of interest on the Certificates issued pursuant to the Indenture.
Default. Any event or condition which, with the lapse of time or the
giving of notice, or both, would constitute an Event of Default.
Delivery Date. The date on which the Aircraft is delivered and sold
by AVSA to the Lessor and leased by the Lessor to the Lessee under the Lease,
which date shall also be the date of the initial Lease Supplement.
Delivery Notice. Notice of the Aircraft's Delivery Date, given by
the Lessee as provided in Section 3.01 of the Participation Agreement and
including any notice with respect to a postponed Delivery Date given by the
Lessee pursuant to Section 3.05(c) of the Participation Agreement.
Eligible Deposit Account. Either (a) a segregated account with an
Eligible Institution or (b) a segregated trust account with the corporate
trust department of a depository institution with corporate trust powers
organized under the laws of the United States or any state thereof, or the
District of Columbia, and whose deposits are insured by the Federal Deposit
Insurance Corporation, provided that such institution also has a combined
capital and surplus of at least $100,000,000 and a rating of A or better from
the Thomson Bank Watch.
Eligible Institution. A depository institution organized under the
laws of the United States or any one of the states thereof, or the District of
Columbia, or any domestic branch of a foreign bank, which in any such case at
all times (a) has either (x) a long-term unsecured debt rating of at least Aa2
by Moody's or (y) a short-term certificate of deposit rating of P-1 by
Moody's, (b) has either (x) a long-term unsecured debt rating of a least AA by
S&P or (y) a short-term certificate of deposit rating of A-1+ by S&P and (c)
is a member of the Federal Deposit Insurance Corporation.
Engine. Each of the two General Electric CF6-80C2-A5F engines listed
by its manufacturer's serial number in the initial Lease Supplement and leased
pursuant to the Lease, whether or not from time to time installed on the
Airframe or installed on any other airframe or on any other aircraft, and any
Replacement Engine which may from time to time be substituted for an Engine
pursuant to Section 7.02(a)(vii), 10.02(c), 10.03, 11.03, 11.04 or 12.02 of
the Lease, together with all Parts related thereto. Except as otherwise
provided, at such time as a Replacement Engine shall be so substituted and the
Engine for which the substitution is made shall be released from the Lien of
the Indenture, such replaced Engine shall cease to be an "Engine" under the
Lease. The term "Engines" means, as of any date of determination, both Engines
then leased to the Lessee pursuant to the Lease.
Engine Consent. The Engine Consent dated as of May 1, 1997, executed
by the Engine Manufacturer.
Engine Manufacturer. General Electric Company, a New York
corporation.
Engine Warranty Assignment. The Engine Warranty Assignment (Federal
Express Corporation Trust No. N671FE), dated as of May 1, 1997 between the
Lessor and the Lessee.
ERISA. The Employee Retirement Income Security Act of 1974, as
amended.
ERISA Plan. As defined in Section 8.01(b)(xii) of the Participation
Agreement.
Estimated Expense Amount. Has the meaning specified in Section
10.01(a) of the Participation Agreement.
Event of Default. Each of the events specified in Article 16 of the
Lease.
Event of Loss. Any of the following events with respect to the
Aircraft, the Airframe or any Engine: (i) loss of such property or its use (A)
for a period in excess of 60 days due to theft or disappearance or such longer
period, not to exceed 180 days from the end of such initial 60-day period, if
and so long as the location of such property is known to the Lessee and the
Lessee is diligently pursuing recovery of such property, or to the end of the
Term, if less (unless such theft or disappearance constitutes an Event of Loss
pursuant to (i)(B) or (ii) hereof) or (B) for a period in excess of 60 days
due to the destruction, damage beyond economic repair or rendition of such
property permanently unfit for normal use by Lessee for any reason whatsoever;
(ii) any damage to such property which results in an insurance settlement with
respect to such property on the basis of a total loss, or constructive or
compromised total loss; (iii) (1) condemnation, confiscation or seizure of, or
requisition of title to such property by the Government, any foreign
government or purported government or any agency or instrumentality thereof,
or (2) condemnation, confiscation, or seizure of, or requisition or taking of,
use of such property (A) by a foreign government or instrumentality or agency
of any such foreign government, for a period in excess of 180 days (or such
shorter period ending on the earlier of the expiration of the Term or on the
date on which an insurance settlement with respect to such property on the
basis of a total loss or constructive or compromised total loss shall occur)
or (B) by the Government for a period extending beyond the Term; and (iv) as a
result of any law, rule, regulation, order or other action by the Aeronautics
Authority or other governmental body having jurisdiction, the use of the
Aircraft or Airframe in the normal course of air transportation of cargo shall
have been prohibited by virtue of a condition affecting all Airbus A300-600
series aircraft equipped with engines of the same make and model as the
Engines for a period of twelve (12) consecutive months, unless the Lessee,
prior to the expiration of such twelve (12) month period, shall be diligently
carrying forward all steps which are necessary or desirable to permit the
normal use of the Aircraft or Airframe or, in any event, if such use of the
Aircraft or the Airframe shall have been prohibited for a period of
twenty-four (24) consecutive months or until the end of the Term, if earlier.
The date of such Event of Loss shall be (s) the 61st day or the 241st day, as
the case may be, following loss of such property or its use due to theft or
disappearance (or the end of the Term or the Lessee's abandonment of diligent
efforts to recover such property, if earlier); (t) the 61st day following the
date of any destruction, damage beyond economic repair or rendition of such
property permanently unfit for normal use; (u) the date of any insurance
settlement on the basis of a total loss or constructive or compromised total
loss; (v) the date of any condemnation, confiscation, seizure or requisition
of title of such property; (w) the 181st day following condemnation,
confiscation, seizure or requisition for use of such property by a foreign
government referred to in clause (iii)(2)(A) above (or the end of the Term or
the date of any insurance settlement described therein, if earlier than such
181st day); (x) the last day of the Term in the case of requisition for use of
such property by the Government; (y) the last day of the 12 month or 24 month
period, referred to in clause (iv) above (or if earlier, the end of the Term
or abandonment of the Lessee's efforts to restore the normal use of the
Aircraft). An Event of Loss with respect to the Aircraft shall be deemed to
have occurred if any Event of Loss occurs with respect to the Airframe.
Excepted Payments. Collectively, (i) indemnity, expense,
reimbursement or other payments paid or payable by the Lessee in respect of
the Owner Participant, the Owner Trustee in its individual capacity or any of
their respective successors, permitted assigns, directors, officers,
employees, servants and agents or Affiliates, pursuant to the Participation
Agreement or any other Operative Agreement or any indemnity hereafter granted
to the Owner Participant or the Owner Trustee in its individual capacity
pursuant to the Lease or the Participation Agreement, (ii) proceeds of public
liability insurance (or government indemnities in lieu thereof) in respect of
the Aircraft payable as a result of insurance claims paid for the benefit of,
or losses suffered by, the Owner Trustee or the Indenture Trustee in their
respective individual capacities or by the Owner Participant, or their
respective successors, permitted assigns or Affiliates, (iii) proceeds of
insurance maintained with respect to the Aircraft by the Owner Participant
(whether directly or through the Owner Trustee) maintained in accordance with
Section 13.05 of the Lease but not required under Article 13 of the Lease,
(iv) payments of Supplemental Rent by the Lessee in respect of any amounts
payable under the Tax Indemnity Agreement, (v) any purchase price paid to the
Owner Participant for its interest in the Trust Estate pursuant to Section
7.03(d) of the Participation Agreement, (vi) subject to Section 3.05 of the
Lease, payments constituting increases in Basic Rent attributable to payments
arising pursuant to Section 5 of the Tax Indemnity Agreement, (vii) any
payments in respect of interest to the extent attributable to payments
referred to in clauses (i) through (vi) above and (viii) any right to demand,
collect or otherwise receive and enforce the payment of any amount described
in clauses (i) through (v) and (vii) above (except with respect to interest
attributable to payments referred to in clause (vi) above).
Expense; Expenses. Have the meaning specified in Section 9.01(a) of
the Participation Agreement.
Fair Market Renewal Term. A term with respect to which the Lessee has
exercised its option to renew the Lease pursuant to the second paragraph of
Section 4.01(a) thereof and with respect to which the conditions set forth in
such Section 4.01(a) are met.
Fair Market Rental. An amount determined on the basis of, and equal
in amount to, the rental which would be obtained in an arm's-length
transaction between an informed and willing lessee and an informed and willing
lessor unaffiliated with such lessee, neither being under any compulsion to
lease. In such determination, it shall be assumed that the Aircraft is in the
condition required under the Lease in the case of return of the Aircraft
pursuant to Article 12 of the Lease and Fair Market Rental shall be determined
in accordance with the provisions of Section 4.03 of the Lease.
Fair Market Value. An amount determined on the basis of, and equal in
amount to, the value which would be obtained in an arm's-length transaction
between an informed and willing purchaser under no compulsion to buy and an
informed and willing seller unaffiliated with such purchaser and under no
compulsion to sell, assuming the Aircraft (or other property) is unencumbered
by the Lease. In such determination, except for purposes of Section 17.01 of
the Lease (when it shall be determined based upon the actual condition and
location of the Aircraft), it shall be assumed that the Aircraft is in the
condition required under the Lease in the case of return of the Aircraft
pursuant to Article 12 of the Lease and Fair Market Value shall be determined
in accordance with the provisions of Section 4.03 of the Lease.
Federal Aviation Administration; FAA. The United States Federal
Aviation Administration and any successor agency or agencies thereto.
Final Drawing. Has the meaning specified in Section 1.01 of the
Intercreditor Agreement.
Fixed Renewal Rent. Semi-annual payments of rent during the Fixed
Renewal Term equal to the lesser of (i) Fair Market Rental as determined as of
the commencement of such Fixed Renewal Term and (ii) 50% of the average actual
semi-annual Basic Rent payable during the Basic Term.
Fixed Renewal Term. The term with respect to which the Lessee has
exercised its option to renew the Lease pursuant to the first paragraph of
Section 4.01(a) thereof and with respect to which the conditions set forth in
such Section 4.01(a) are met.
FPO Price. Has the meaning set forth in Section 4.02(a)(F) of the
Lease.
French Pledge Agreement. The French Pledge Agreement dated as of May
1, 1997 between the Owner Trustee and the Indenture Trustee.
FSB. First Security Bank, National Association, a national banking
association.
Government. The United States of America or an agency or
instrumentality thereof the obligations of which bear the full faith and
credit of the United States of America.
GTA. The General Terms Agreement dated as of July 3, 1991 between the
Engine Manufacturer and the Lessee related to the purchase by the Lessee of the
Engines as originally executed or as modified, amended or supplemented in
accordance with the terms thereof, but only insofar as the General Terms
Agreement relates to the Engines, to the extent assigned to the Owner Trustee
pursuant to the Engine Warranty Assignment.
Holder of a Certificate; Certificate Holder; Holder. As of any
particular time, the Person in whose name a Certificate shall be registered
(but not including the holder of any Pass Through Certificate).
Indemnitee. Each of SSB, in its individual capacity and as Owner
Trustee and Lessor, the Subordination Agent, in its individual capacity and in
its capacity as Subordination Agent, each Liquidity Provider, the Owner
Participant, the Indenture Trustee, in its individual capacity and as trustee,
the Owner Participant Guarantor and any successor (including any trustee which
may succeed to the Lessor's interest under the Lease), Affiliate, assign,
officer, director, employee, agent and servant of any of the foregoing, the
Lessor's Estate and the Trust Indenture Estate. Neither the Pass Through
Trustee nor any holder of a Pass Through Certificate shall be deemed to be an
Indemnitee.
Indenture. The Trust Indenture and Security Agreement (Federal
Express Corporation Trust No. N671FE), dated as of May 1, 1997, between the
Lessor and the Indenture Trustee, as supplemented by the Indenture and
Security Agreement Supplement.
Indenture and Security Agreement Supplement. The Indenture and
Security Agreement Supplement No. 1 (Federal Express Corporation Trust No.
N671FE) to be dated the Delivery Date, substantially in the form of Exhibit A
to the Indenture.
Indenture Default. Any event or condition which, with the lapse of
time or the giving of notice, or both, would constitute an Indenture Event of
Default.
Indenture Documents. Has the meaning specified in the Granting
Clause of the Indenture.
Indenture Event of Default. Each of the events specified in Section
7.01 of the Indenture.
Indenture Trustee. First Security Bank, National Association, a
national banking association, not in its individual capacity but solely as
Indenture Trustee under the Indenture.
Indenture Trustee's Liens. Any Lien against, on or with respect to
the Aircraft, the Lessor's Estate or the Trust Indenture Estate or any part
thereof resulting from (i) claims against the Indenture Trustee not related to
the administration of the Trust Indenture Estate or any transactions pursuant
to the Indenture or any document included in the Trust Indenture Estate, (ii)
any act or omission of the Indenture Trustee which is not related to the
transactions contemplated by the Operative Agreements or is in violation of
any of the terms of the Operative Agreements or (iii) Taxes imposed against
the Indenture Trustee in its individual capacity in respect of which the Lessee
has not indemnified (and is not obligated to indemnify) the Indenture Trustee
in such capacity.
Independent Appraisal. An appraisal conducted pursuant to Section
4.03 of the Lease.
Independent Investment Banker. An independent investment banking
institution of national standing appointed by the Lessee that is independent
in fact, does not have any direct financial interests, or any material
indirect financial interest, in the Lessee or any Affiliate of the Lessee, and
is not connected with the Lessee or any Affiliate of the Lessee, as an
officer, employee, promoter, underwriter, trustee, partner, director or Person
performing similar functions; provided, that if the Indenture Trustee shall
not have received written notice of such an appointment at least 10 days prior
to the Prepayment Date, "Independent Investment Banker" shall mean such an
institution appointed by the Indenture Trustee.
Intercreditor Agreement. The Intercreditor Agreement dated as of May
1, 1997, among the Pass Through Trustee, the Class A Liquidity Provider, the
Class B Liquidity Provider and the Subordination Agent.
Interest Drawing. Has the meaning specified in Section 1.01 of the
Intercreditor Agreement.
Invoice. The invoice for the Aircraft given by AVSA to the Lessor.
Lease. The Lease Agreement (Federal Express Corporation Trust No.
N671FE) dated as of May 1, 1997, entered into by the Lessor and the Lessee
concurrently with the execution and delivery of the Indenture, including,
without limitation, supplementation by one or more Lease Supplements entered
into pursuant to the applicable provisions of the Lease.
Lease Supplement. The Lease Supplement No. 1 (Federal Express
Corporation Trust No. N671FE) to be dated the Delivery Date, substantially in
the form of Exhibit A to the Lease.
Lease Term. The period commencing on the Delivery Date and ending at
the end of the Basic Term.
Lessee. Federal Express Corporation, a Delaware corporation.
Lessee Documents. Has the meaning set forth in Section 6.01(b) of the
Participation Agreement.
Lessor. State Street Bank and Trust Company of Connecticut, National
Association, a national banking association, not in its individual capacity
but solely as Owner Trustee under the Trust Agreement.
Lessor's Estate. All estate, right, title and interest of the Owner
Trustee in and to the Collateral Account, the Liquid Collateral, the Aircraft,
the Lease, any Lease Supplement, the Participation Agreement, AVSA's FAA Bill
of Sale, AVSA's Warranty Bill of Sale, the Airbus Guaranty, the Purchase
Agreement, the Purchase Agreement Assignment, the Consent and Agreement, the
AVSA Consent and Agreement, the Consent and Guaranty (to the extent assigned
by the Purchase Agreement Assignment), any Ancillary Agreement, the GTA, the
Engine Warranty Assignment, the Engine Consent, any warranty with respect to
the Airframe and the Engines, all amounts of Basic Rent and Supplemental Rent,
including without limitation, insurance proceeds (other than insurance
proceeds payable to or for the benefit of the Owner Trustee in its individual
capacity or the Owner Participant) and requisition, indemnity or other
payments of any kind for or with respect to the Aircraft (except amounts owing
to the Owner Participant, to the Indenture Trustee, to the Owner Trustee in its
individual capacity, or to any of their respective directors, officers,
employees and agents pursuant to Articles 8 and 9 of the Participation
Agreement), and all other property of the Owner Trustee purportedly subjected
to the Lien of the Indenture by the Granting Clause thereof; provided that in
no event shall "Lessor's Estate" include any Excepted Payment.
Lessor's Liens. Liens against, on or with respect to the Aircraft,
the Lessor's Estate or the Trust Indenture Estate or any part thereof, title
thereto or any interest therein arising as a result of (i) claims against the
Lessor, in its individual capacity or as Owner Trustee, or the Owner
Participant, in each case not related to the transactions contemplated by the
Operative Agreements, (ii) acts or omissions of the Lessor in its individual
capacity or as Owner Trustee, and, in the case of the Lessor in its individual
capacity, arising from its gross negligence or willful misconduct or expressly
prohibited under the Operative Agreements and any act or omission of the Owner
Participant which is in violation of any of the terms of the Operative
Agreements, (iii) Taxes or Expenses imposed against the Lessor, in its
individual capacity or as Owner Trustee, Owner Participant, Lessor's Estate or
the trust created by the Trust Agreement which are not required to be
indemnified against by the Lessee pursuant to the Participation Agreement by
reason of Section 8.01(b) or 9.01(b) thereof and which are not required to be
indemnified against by the Lessee pursuant to the Tax Indemnity Agreement, or
(iv) claims against the Lessor or the Owner Participant arising from the
voluntary transfer by the Lessor or the Owner Participant of its interests in
the Aircraft other than a transfer of the Aircraft pursuant to Section 4.02(a)
or Article 10 or 11 of the Lease and other than a transfer pursuant to the
exercise of the remedies set forth in Article 17 of the Lease.
Lien. Any mortgage, pledge, lien, charge, encumbrance, lease or
security interest or other similar interest.
Liquid Collateral. All amounts and securities deposited from time to
time in the Collateral Account and all the products, investments, earnings and
proceeds of the foregoing, including, but not limited to, all proceeds of the
investment or conversion thereof, voluntary or involuntary, into cash,
Specified Investments or other property, all rights to payment of any and
every kind, and other forms of obligations, and instruments and other property
which at any time constitute all or part or are included in the proceeds of
any of the foregoing.
Liquidity Facility. Has the meaning specified in Section 1.01 of the
Intercreditor Agreement.
Liquidity Provider. Has the meaning specified in Section 1.01 of the
Intercreditor Agreement.
Losses. Has the meaning specified in Section 17.02(a) of the
Participation Agreement.
Loss Payee. Has the meaning specified in Section 13.02(b)(i) of the
Lease.
Majority in Interest of Certificate Holders. As of a particular date
of determination, the Holders of more than 50% of the aggregate unpaid
principal amount of all Certificates outstanding as of such date excluding for
purposes of this definition any Certificates held by (i) the Owner Trustee or
the Owner Participant or any interests of the Owner Participant unless all
Certificates then outstanding shall be held by the Owner Participant, (ii) the
Lessee or (iii) any Affiliate of any thereof.
Make-Whole Premium. An amount determined as of the day before the
applicable Prepayment Date (or date of purchase, as the case may be) which an
Independent Investment Banker determines to be equal to the excess, if any, of
(i) the present value of the remaining scheduled payments of such principal
amount or portion thereof and interest thereon (excluding interest accrued
from the immediately preceding Payment Date to such Prepayment Date or date of
purchase, as the case may be) to the Maturity of such Certificate in
accordance with generally accepted financial practices assuming a 360-day year
consisting of twelve 30-day months at a discount rate equal to the Treasury
Yield, all as determined by the Independent Investment Banker over (ii) the
outstanding principal amount of such Certificate plus accrued interest.
Manufacturer. Airbus Industrie G.I.E., a groupement d'interet
economique formed under the laws of France.
Maturity. With respect to any Certificate, the date on which the
final principal amount of such Certificate is scheduled to be due and payable.
Moody's. Moody's Investors Service, Inc.
Net Present Value of Rents. The net present value, as of the
Delivery Date, of Basic Rent set forth in Schedule II of the Lease, discounted
at a rate equal to the Debt Rate per annum compounded semi-annually.
Non-U.S. Person. Any Person other than a U.S. Person.
Obsolete Parts. Parts which are severable from the Aircraft in
accordance with clauses (ii) and (iii) of the proviso to Section 9.02(b) of
the Lease and the Lessee in good faith determines to be obsolete or no longer
suitable or appropriate for use on the Airframe or any Engine.
Officer's Certificate. When delivered pursuant to the Indenture, a
certificate signed by a Responsible Officer of the Lessee or the Owner
Trustee, as the case may be, and delivered to the Indenture Trustee. Each
such certificate shall include the statements provided for in Section 15.07 of
the Indenture.
Operative Agreements. The Participation Agreement, the Trust
Agreement, AVSA's FAA Bill of Sale, AVSA's Warranty Bill of Sale, the Airbus
Guaranty, the Purchase Agreement, the Purchase Agreement Assignment, the GTA,
the Engine Warranty Assignment, the French Pledge Agreement, the Lease, the
Lease Supplement, the Owner Participant Guaranty, the Owner Trustee Guaranty,
if any, any Ancillary Agreement entered into by or with the written consent of
the Indenture Trustee, which by its terms is an Operative Agreement, the
Certificates outstanding at the time of reference, the Indenture, the
Indenture and Security Agreement Supplement, the Consent and Agreement, the
AVSA Consent and Agreement, the Consent and Guaranty (to the extent assigned
by the Purchase Agreement Assignment), the Engine Consent, the Tax Indemnity
Agreement, each Liquidity Facility, the Intercreditor Agreement, the
Collateral Account Control Agreement and any Assignment and Assumption
Agreement.
Opinion of Counsel. When delivered pursuant to the Indenture, a
written opinion of legal counsel, who in the case of counsel (a) for the
Lessee may be (i) an attorney employed by the Lessee who is generally
empowered to deliver such written opinions, (ii) Davis Polk & Wardwell or a
successor firm or (iii) other counsel designated by the Lessee and reasonably
satisfactory to the Indenture Trustee and (b) for the Owner Trustee or the
Indenture Trustee, an attorney selected by such Person and, in the case of the
Owner Trustee, reasonably satisfactory to the Indenture Trustee.
Outstanding. When used with respect to Certificates, as of the date
of determination and subject to the provisions of Section 10.04 of the
Indenture, all Certificates theretofore executed and delivered under the
Indenture, with the exception of the following:
(i) Certificates theretofore cancelled by the Indenture Trustee or
delivered to the Indenture Trustee for cancellation pursuant to
Section 2.08 of the Indenture or otherwise;
(ii) Certificates for which prepayment money in the necessary amount
has been theretofore deposited with the Indenture Trustee in trust
for the Holders of such Certificates pursuant to Section 14.01 of the
Indenture; provided, that if such Certificates are to be prepaid,
notice of such prepayment has been duly given pursuant to the
Indenture or provision therefor satisfactory to the Indenture Trustee
has been made; and
(iii) Certificates in exchange for or in lieu of which other
Certificates have been executed and delivered pursuant to Article II
of the Indenture.
Owner Participant. The trustor originally named in the Trust
Agreement and any successor thereto, and any Person to which the Owner
Participant transfers, in accordance with the Trust Agreement, its right,
title and interest in and to the Operative Agreements and the Lessor's Estate.
Owner Participant Guarantor. Philip Morris Capital Corporation, a
Delaware corporation, and any other provider of an Owner Participant Guaranty.
Owner Participant Guaranty. The Owner Participant Guaranty dated the
Certificate Closing Date by the Owner Participant Guarantor in favor of the
Lessee, the Owner Trustee, the Indenture Trustee and the Pass Through Trustee,
and any guaranty delivered in compliance with Section 7.03(d) of the
Participation Agreement.
Owner Trustee. SSB, not in its individual capacity except as
otherwise expressly stated, but solely as Owner Trustee under the Trust
Agreement.
Owner Trustee Guarantor. The provider of an Owner Trustee Guaranty.
Owner Trustee Guaranty. Any guaranty delivered in compliance with
Section 11.01(b)(ii) of the Participation Agreement.
Owner's Economic Return. The Owner Participant's anticipated net
after-tax book yield and aggregate after-tax cash during the Basic Term
utilizing the multiple investment sinking fund method of analysis, computed on
the basis of the same methodology and assumptions as were utilized by the
Owner Participant in determining Basic Rent, Stipulated Loss Value and
Termination Value percentages, as the case may be, as such assumptions may be
adjusted for events which have been the basis of adjustments to Rent pursuant
to Section 3.04 of the Lease.
Participation Agreement. The Participation Agreement (Federal Express
Corporation Trust No. N671FE), dated as of May 1, 1997, among the Lessee, the
Owner Trustee not in its individual capacity except as otherwise expressly
provided therein, but solely as owner trustee, the Owner Participant, the
Indenture Trustee not in its individual capacity except as otherwise expressly
provided therein, but solely as indenture trustee, the Pass Through Trustee
not in its individual capacity except as otherwise expressly provided therein,
but solely as pass through trustee and the Subordination Agent not in its
individual capacity except as otherwise expressly provided therein, but solely
as subordination agent.
Parts. All appliances, parts, components, instruments, appurtenances,
accessories, furnishings and other equipment of whatever nature (other than
complete Engines or engines) which may from time to time be incorporated or
installed in or attached to the Airframe or any Engine or title to which
remains vested in the Lessor pursuant to Article 8 of the Lease.
Pass Through Agreement. The Pass Through Trust Agreement dated as of
May 1, 1997 between the Lessee and the Pass Through Trustee.
Pass Through Certificates. Any of the Pass Through Certificates,
1997-1-A, the Pass Through Certificates, 1997-1-B or the Pass Through
Certificates, 1997-1-C, in each case as issued by the related Pass Through
Trust; and "Pass Through Certificates" means all of the Pass Through
Certificates issued by each of the Pass Through Trusts.
Pass Through Closing Date. The Business Day on which the sale of the
Pass Through Certificates to the Underwriters pursuant to the Underwriting
Agreement takes place.
Pass Through Trust. The Federal Express Corporation 1997-1 Pass
Through Trust Class A, Federal Express Corporation 1997-1 Pass Through Trust
Class B and Federal Express Corporation 1997-1 Pass Through Trust Class C, in
each case formed pursuant to the related Series Supplement in accordance with
the Pass Through Agreement; and "Pass Through Trusts" means all of such Pass
Through Trusts.
Pass Through Trustee. First Security Bank, National Association, a
national banking association, in its capacity as Pass Through Trustee under
the Pass Through Agreement and each Pass Through Trust.
Past Due Rate. In respect of (A) any amount payable to the Owner
Participant or the Owner Trustee a rate per annum during the period from and
including the due date to but excluding the date on which such amount is paid
in full equal to 2% plus the Debt Rate and (B) any principal of or interest on
any Certificate or any other amount payable under the Indenture, any
Certificate or any other Operative Agreement that is not paid when due
(whether at Maturity, by acceleration, by optional or mandatory prepayment or
otherwise) to any Holder, the Indenture Trustee or the Pass Through Trustee, a
rate per annum during the period from and including the due date to but
excluding the date on which such amount is paid in full equal to (i) in the
case of any such amount payable to the Holder of any Certificate, 2% plus the
interest rate applicable to such Certificate and (ii) in the case of any other
such amount, 2% plus the Debt Rate.
Payment Date. Each January 15 and July 15 commencing on July 15,
1997.
Payment Default. Any event specified in Section 16.01(a) or 16.01(b)
of the Lease which with the giving of notice or lapse of time or both would
constitute an Event of Default.
Permitted Investments. Those investments enumerated in Section
23.01(a) (i), (ii), (iii) and (iv) of the Lease.
Person. Any individual, sole proprietorship, partnership, joint
venture, joint stock company, trust, unincorporated organization, association,
corporation, institution, entity or government (federal, state, local,
foreign or any agency, instrumentality, division or body thereof).
Preliminary Notice. Has the meaning specified in Section 4.01(a) of
the Lease.
Premium Termination Date. With respect to the Series A Certificates,
December 27, 2011, with respect to the Series B Certificates, February 5, 2010
and with respect to the Series C Certificates, March 22, 2007.
Prepayment Date. Has the meaning specified in Section 6.02(b) of the
Indenture.
Prepayment Price. Has the meaning specified in Section 6.02(b) of the
Indenture.
Principal Amount. With respect to a Certificate means the stated
original principal amount of such Certificate and, with respect to all
Certificates, means the aggregate stated original principal amounts of all
Certificates.
Property. Any right or interest in or to property of any kind
whatsoever, whether real, personal or mixed and whether tangible or intangible.
Proposed Termination Date. The proposed date of termination of the
Lease as specified by the Lessee in its notice given pursuant to Section 10.01
thereof.
Purchase Agreement. The Airbus A300-600R Freighter Purchase Agreement,
dated as of July 3, 1991 between AVSA and the Lessee, including all exhibits,
appendices and letter agreements attached thereto as originally executed or as
modified, amended or supplemented in accordance with the terms thereof, but
only to the extent that the foregoing relates to the Aircraft and to the
extent assigned pursuant to the Purchase Agreement Assignment.
Purchase Agreement Assignment. The Purchase Agreement Assignment
(Federal Express Corporation Trust No. N671FE), dated as of May 1, 1997 between
the Lessor and the Lessee.
Purchase Price. Has the meaning specified in Ancillary Agreement II.
Record Date. With respect to Payment Dates under the Indenture
(except a date for payment of defaulted interest), December 31 for January 15
Payment Dates and June 30 for July 15 Payment Dates, whether or not such date
is a Business Day.
Recourse Amount. Has the meaning specified in Section 17.10 of the
Participation Agreement.
Refinancing. A non-recourse loan to the Lessor arranged pursuant to
Section 15.01 of the Participation Agreement.
Register. Has the meaning set forth in Section 3.02 of the Indenture.
Registrar. Has the meaning set forth in Section 3.02 of the
Indenture.
Regulation D. Regulation D of the Board of Governors of the Federal
Reserve System (or any successor), as the same may be modified and
supplemented and in effect from time to time.
Related Indentures. Collectively, the Trust Indenture and Security
Agreement for each of Federal Express Corporation Trust Nos. N670FE, N672FE,
N673FE, N674FE, N583FE and N584FE, each dated as of May 1, 1997, between the
Owner Trustee and the Indenture Trustee, the Trust Indenture and Security
Agreement for Federal Express Corporation Trust No. N581FE, dated as of May 1,
1997, between Wilmington Trust Company, as owner trustee and the Indenture
Trustee, and the Trust Indenture and Security Agreement for Federal Express
Corporation Trust No. N587FE, dated as of December 1, 1996, as amended and
restated as of May 1, 1997, between Wilmington Trust Company, as owner trustee
and the Indenture Trustee.
Remaining Weighted Average Life. On a given date with respect to any
Certificate the number of days equal to the quotient obtained by dividing (i)
the sum of each of the products obtained by multiplying (a) the amount of each
then remaining scheduled payment of principal of such Certificate by (b) the
number of days from and including such prepayment date to but excluding the
dates on which each such payment of principal is scheduled to be made; by (ii)
the then outstanding principal amount of such Certificate.
Renewal Rent. The amount payable by the Lessee as rent in accordance
with Section 4.01 of the Lease during any Renewal Term.
Renewal Term. One or more terms with respect to which the Lessee has
exercised its option to renew the Lease pursuant to Section 4.01(a) thereof.
Rent. All payments due from the Lessee under the Lease as Basic Rent,
Renewal Rent and Supplemental Rent, collectively.
Rent Payment Date. September 20, 2020 and each January 15 and July 15
commencing on July 15, 1997.
Reoptimization Date. Has the meaning specified in Section 15.02(a)
of the Participation Agreement.
Replacement Aircraft. Any aircraft substituted for the Aircraft
pursuant to Section 11.03(a) of the Lease.
Replacement Airframe. Has the meaning set forth in Section 11.03 of
the Lease.
Replacement Engine. A General Electric CF6-80C2-A5F engine (or an
engine of the same or another manufacturer) of equal or greater value,
airworthiness, remaining useful life and utility as the Engine being replaced,
together with all Parts relating to such engine; provided, however, that if
such replacement engine is not a General Electric CF6-80C2-A5F engine, such
replacement engine must then be commonly used in the commercial aviation
industry on Airbus A300-600 airframes.
Responsible Officer. With respect to the Owner Trustee (except for
purposes of the Trust Agreement in which case the definition of Responsible
Officer set forth in Section 3.10 of the Trust Agreement is applicable) or the
Indenture Trustee, any officer in its Corporate Trust Administration, as the
case may be, designated by such Person to perform obligations under the
Operative Agreements, and with respect to any other party, any corporate
officer or (except in the case of the Owner Participant) other employee of a
party who, in the normal performance of his or her operational
responsibilities, with respect to the subject matter of any covenant,
agreement or obligation of such party pursuant to any Operative Agreement,
would have responsibility for and knowledge of such matter and the
requirements of any Operative Agreement with respect thereto.
S&P. Standard & Poor's Ratings Group.
Scheduled Delivery Date. The Delivery Date specified in the Delivery
Notice pursuant to Section 3.01 of the Participation Agreement.
SEC. The Securities and Exchange Commission of the United States and
any successor agencies or authorities.
Secured Obligations. Has the meaning specified in the Granting
Clause of the Indenture.
Securities Act. The Securities Act of 1933, as amended.
Series "A" or "Series A Certificates". Certificates issued and
designated as "Series A" under the Indenture, in the Principal Amount and
maturities and bearing interest as specified in Exhibit B to the Indenture
under the heading "Series A".
Series "B" or "Series B Certificates". Certificates issued and
designated as "Series B" under the Indenture, in the Principal Amount and
maturities and bearing interest as specified in Exhibit B to the Indenture
under the heading "Series B".
Series "C" or "Series C Certificates". Certificates issued and
designated as "Series C" under the Indenture, in the Principal Amount and
maturities and bearing interest as specified in Exhibit B to the Indenture
under the heading "Series C".
Series Supplement or Series Supplements. The Series Supplement
1997-1-A to be executed and delivered by the Lessee and the Pass Through
Trustee, the Series Supplement 1997-1-B to be executed and delivered by the
Lessee and the Pass Through Trustee or the Series Supplement 1997-1-C to be
executed and delivered by the Lessee and the Pass Through Trustee.
Sinking Fund Redemption Date. Has the meaning specified in Section
6.06 of the Indenture.
Sinking Fund Redemption Price. Has the meaning specified in Section
6.06 of the Indenture.
Special Aviation Counsel. Daugherty, Fowler & Peregrin.
Specified Investments. Shall mean (a) direct obligations of the
United States of America or obligations fully guaranteed by the United States
of America; (b) commercial paper rated A-1/P-1 by S&P and Moody's,
respectively or, if such ratings are unavailable, rated by any nationally
recognized rating organization in the United States equal to the highest
rating assigned by such rating organization; (c) investments in negotiable
certificates of deposit, time deposits, banker's acceptances, commercial paper
or other direct obligations of, or obligations guaranteed by, commercial banks
organized under the laws of the United States or of any political subdivision
thereof (or any U.S. branch of a foreign bank) with issuer ratings of at least
B/C by Thomson Bankwatch, having maturities no later than 90 days following
the date of such investment; (d) overnight federal funds transactions with
members of the Federal Reserve System arranged by federal funds brokers; or
(e) overnight repurchase agreements with respect to the securities described
in clause (a) above entered into with an office of a bank or trust company
which is located in the United States of America or any bank or trust company
which is organized under the laws of the United States or any state thereof
and has capital, surplus and undivided profits aggregating at least $500
million.
SSB. State Street Bank and Trust Company of Connecticut, National
Association, a national banking association.
Stipulated Loss Value. As of any Stipulated Loss Value Determination
Date during the Basic Term, the amount determined by multiplying the Purchase
Price by the percentage set forth in Schedule III of the Lease under the
heading "Stipulated Loss Value Factor" opposite such date (as such Schedule
III may be adjusted from time to time as provided in Section 3.04 of the
Lease), and during any Renewal Term, the amount determined pursuant to Section
4.01(b) of the Lease. Notwithstanding any other provisions of the Lease or
the Participation Agreement or the Indenture, each Stipulated Loss Value for
the Aircraft shall be, under any circumstances and in any event, an amount,
together with so much of the arrears portion of Basic Rent due and owing
through the date of payment of Stipulated Loss Value as does not constitute an
Excepted Payment, at least sufficient to pay in full as of such date of
payment the aggregate unpaid principal amount of and accrued interest on the
Certificates outstanding on such date of payment. Subject to the immediately
preceding sentence, it is understood and agreed that the amounts set forth on
Schedule III of the Lease, for dates other than Rent Payment Dates on which
arrears Basic Rent is due, fully reflect appropriate Basic Rent accruals and
credits of unearned Basic Rent through such date and, accordingly, no further
accrual or credit shall be required through such date whenever Stipulated Loss
Value is to be calculated with reference to any such date; provided that if
amounts in respect of Stipulated Loss Value are payable under the Operative
Agreements after the Stipulated Loss Determination Date in respect of which
such Stipulated Loss Value was determined, the Lessor shall be compensated
during the period from the Stipulated Loss Determination Date to such payment
date in accordance with the provisions of the Operative Agreements.
Stipulated Loss Value Determination Date. Each date set forth on
Schedule III of the Lease.
Subordination Agent. First Security Bank, National Association, a
national banking association, not in its individual capacity but solely as
Subordination Agent.
Supplemental Rent. (a) All amounts, liabilities and obligations
which the Lessee assumes or agrees to perform or pay under the Lease or under
the Participation Agreement or Tax Indemnity Agreement or any Ancillary
Agreement or any other Operative Agreement to the Lessor, the Owner
Participant, the Indenture Trustee, the Subordination Agent, any Liquidity
Provider or others, including, without limitation, payments of Stipulated Loss
Value, FPO Price and amounts calculated by reference to Termination Value, any
amounts of Make-Whole Premium payable under the Indenture to the extent
provided in Section 3.03 of the Lease, and all amounts required to be paid by
Lessee under the agreements, covenants and indemnities contained in the Lease
or in the Participation Agreement or the Tax Indemnity Agreement or any other
Operative Agreement, but excluding Basic Rent and (b) all amounts that the
Owner Trustee is obligated to pay in accordance with clause (b) of the last
paragraph of Section 2.04 of the Indenture.
Tax. Has the meaning set forth in Section 8.01(a) of the
Participation Agreement.
Tax Indemnity Agreement. The Tax Indemnity Agreement (Federal
Express Corporation Trust No. N671FE), dated as of May 1, 1997, between the
Lessee and the Owner Participant.
Term. The Basic Term of the lease for the Aircraft under the Lease
and, if renewed pursuant to Section 4.01 of the Lease, each Renewal Term for
the Aircraft for which the Lease is renewed, or such earlier date on which the
Lease is terminated pursuant to its terms.
Termination Date. A Rent Payment Date during the Basic Term that is
on or after December 31, 2004 in the case of Article 10 of the Lease, and in
the case of (i) Section 4.02(a)(A) of the Lease, the Rent Payment Date falling
on July 15, 2015, (ii) Section 4.02(a)(D) or (E) of the Lease, a Rent
Payment Date that is on or after the seventh anniversary of the Delivery Date
and (iii) Section 4.02(a)(F) of the Lease, the last day of the Basic Term.
Termination Value. As of any Termination Date, the amount determined
by multiplying the Purchase Price by the percentage set forth in Schedule IV
of the Lease under the heading "Termination Value Factor" opposite such
Termination Date (as such Schedule IV may be adjusted from time to time as
provided in Section 3.04 of the Lease). Notwithstanding any other provisions
of the Lease, the Participation Agreement or the Indenture, each Termination
Value shall be, under any circumstances and in any event, an amount, together
with so much of the arrears portion of Basic Rent due and owing through the
date of payment of any amount calculated by reference to Termination Value as
does not constitute an Excepted Payment, at least sufficient to pay in full as
of such date of payment the aggregate unpaid principal amount of and accrued
interest on the Certificates outstanding on such date of payment. Subject to
the immediately preceding sentence, it is understood and agreed that the
amounts set forth on Schedule IV of the Lease, for dates other than Rent
Payment Dates on which arrears Basic Rent is due, fully reflect appropriate
Basic Rent accruals and credits of unearned Basic Rent through such date and,
accordingly, no further accrual or credit shall be required through such date
whenever Termination Value is to be calculated with reference to any such
date; provided that if amounts in respect of Termination Value are payable
under the Operative Agreements after the Termination Date in respect of which
such Termination Value was determined, the Lessor shall be compensated during
the period from the Termination Date to such payment date in accordance with
the provisions of the Operative Agreements.
Transaction Costs. Those costs and expenses set forth in Section
10.01(a) of the Participation Agreement.
Transportation Code. Title 49 of the United States Code, as amended
and in effect on the date of the Lease or as subsequently amended, or any
successor or substituted legislation at the time in effect and applicable, and
the regulations promulgated pursuant thereto.
Treasury Yield. At the time of determination with respect to any
Certificate, the interest rate (expressed as a semi-annual equivalent and as a
decimal and, in the case of United States Treasury bills, converted to a bond
equivalent yield) determined to be the per annum rate equal to the semi-annual
yield to maturity for United States Treasury securities maturing on the
Average Life Date on such Certificate and trading in the public securities
markets either as determined by interpolation between the most recent weekly
average yield to maturity for two series of United States Treasury securities,
trading in public securities markets, (i) one maturing as close as possible to,
but earlier than, the Average Life Date of such Certificate and (ii) the other
maturing as close as possible to, but later than, the Average Life Date of
such Certificate. In each case as published in the most recent H.15(519) or,
if a weekly average yield to maturity for United States Treasury securities
maturing on the Average Life Date of such Certificate is reported on the most
recent H.15 (519), such weekly average yield to maturity as published in such
H.15(919). "H.15(519)" means the weekly statistical release designated as
such, or any successor publication, published by the Board of Governors of the
Federal Reserve System. The date of determination of a Make-Whole Premium
will be the third Business Day prior to the applicable prepayment date and the
"most recent H.15(519)" means the H.15(519) published prior to the close of
business on the third Business Day prior to the applicable prepayment date.
Trust Agreement. The Trust Agreement (Federal Express Corporation
Trust No. N671FE), dated as of May 1, 1997, between the Owner Participant and
the Owner Trustee in its individual capacity.
Trust Estate. The Lessor's Estate.
Trust Indenture Act. The Trust Indenture Act of 1939, as amended.
Trust Indenture Estate. All estate, right, title and interest of the
Indenture Trustee in and to any of the property, rights, interests and
privileges granted to the Indenture Trustee pursuant to the Granting Clause of
the Indenture, other than Excepted Payments and any and all other rights of
the Owner Trustee or the Owner Participant expressly reserved to the Owner
Trustee or the Owner Participant pursuant to the Indenture.
Underwriters. Morgan Stanley & Co. Incorporated, First Chicago
Capital Markets, Inc., Goldman, Sachs & Co. and J.P. Morgan & Co.
Underwriting Agreement. The Underwriting Agreement dated May 22, 1997
among the Lessee and the Underwriters.
United States, U.S. or US. The United States of America.
U.S. Air Carrier. Any United States air carrier as to which there is
in force a certificate issued pursuant to Section 41102(a) or Section 41103 of
the Transportation Code, and as to which there is in force an air carrier
operating certificate issued pursuant to Chapter 447 of the Transportation
Code and Part 121 of the regulations under such Transportation Code, for
aircraft capable of carrying ten (10) or more individuals or 6,000 pounds or
more of cargo, or which may operate as an air carrier by certification or
otherwise under any successor or substitute provision thereof or in absence
thereof.
U.S. Person. A Person described in Section 7701(a)(30) of the Code.
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TRUST INDENTURE AND SECURITY AGREEMENT
(Federal Express Corporation Trust No. N672FE)
Dated as of May 1, 1997
between
STATE STREET BANK AND TRUST COMPANY OF CONNECTICUT,
NATIONAL ASSOCIATION,
Not in its Individual
Capacity, but solely
As Owner Trustee,
Owner Trustee
and
FIRST SECURITY BANK, NATIONAL ASSOCIATION,
Not in its Individual
Capacity, but solely
As Indenture Trustee,
Indenture Trustee
COVERING ONE AIRBUS A300F4-605R AIRCRAFT
SERIAL NO. 779, REGISTRATION NO. N672FE
==============================================================================
TABLE OF CONTENTS
Page
Initial Recitals......................................................... 1
Granting Clause.......................................................... 2
Habendum Clause.......................................................... 6
ARTICLE I
DEFINITIONS
Section 1.01. Definitions.............................................. 8
ARTICLE II
ISSUE, EXECUTION, FORM AND
REGISTRATION OF CERTIFICATES;
COLLATERAL ACCOUNT
Section 2.01. Authentication and Delivery of Certificates.............. 8
Section 2.02. Execution of Certificates................................ 9
Section 2.03. Certificate of Authentication............................ 9
Section 2.04. Form and Terms of Certificates; Payments of Principal,
Make-Whole Premium and Interest.......................... 9
Section 2.05. Payments from Trust Indenture Estate Only................ 12
Section 2.06. Registration, Transfer and Exchange...................... 13
Section 2.07. Mutilated, Defaced, Destroyed, Lost and Stolen
Certificates............................................. 14
Section 2.08. Cancellation of Certificates; Destruction Thereof........ 15
Section 2.09. Temporary Certificates................................... 15
Section 2.10. Termination of Interest in Trust Indenture Estate........ 16
Section 2.11. Certificates in Respect of Replacement Aircraft.......... 16
Section 2.12. Assumption of Obligations Under Certificates and Other
Operative Agreements..................................... 16
Section 2.13. Establishment of Collateral Account...................... 16
Section 2.14. Investment of Funds on Deposit in the Collateral Account. 17
Section 2.15. Release of Debt Portion and Lien on the Collateral Account
and the Liquid Collateral on Delivery Date............... 18
Section 2.16. Cut-Off Date............................................. 19
Section 2.17. Subordination............................................ 19
ARTICLE III
COVENANTS
Section 3.01. Payment of Principal, Make-Whole Premium and Interest.... 19
Section 3.02. Offices for Payments, etc................................ 20
Section 3.03. Appointment to Fill a Vacancy in Office of Indenture
Trustee.................................................. 20
Section 3.04. Paying Agents............................................ 20
Section 3.05. Covenants of SSB and the Owner Trustee................... 21
Section 3.06. [Reserved]............................................... 21
Section 3.07. Disposal of Trust Indenture Estate....................... 22
Section 3.08. No Representations or Warranties as to Aircraft or
Documents................................................ 22
Section 3.09. Further Assurances; Financing Statements................. 22
ARTICLE IV
HOLDER LISTS
Section 4.01. Holder Lists; Ownership of Certificates.................. 23
ARTICLE V
RECEIPT, DISTRIBUTION AND APPLICATION OF
INCOME FROM THE TRUST INDENTURE ESTATE
Section 5.01. Basic Rent Distribution.................................. 23
Section 5.02. Event of Loss and Replacement; Prepayment................ 24
Section 5.03. Payment After Indenture Event of Default, etc............ 25
Section 5.04. Certain Payments......................................... 27
Section 5.05. Other Payments........................................... 28
Section 5.06. Payments to Owner Trustee................................ 28
Section 5.07. Application of Payments.................................. 28
Section 5.08. Investment of Amounts Held by Indenture Trustee.......... 29
Section 5.09. Withholding Taxes........................................ 30
ARTICLE VI
PREPAYMENT OF CERTIFICATES
Section 6.01. No Prepayment Prior to Maturity.......................... 30
Section 6.02. Prepayment of Certificates............................... 30
Section 6.03. Notice of Prepayment to Holders.......................... 32
Section 6.04. Deposit of Prepayment Price and Sinking Fund Redemption
Price.................................................... 33
Section 6.05. Certificates Payable on Prepayment Date.................. 33
Section 6.06. Mandatory Sinking Fund Redemption........................ 33
ARTICLE VII
INDENTURE EVENTS OF DEFAULT; REMEDIES
OF INDENTURE TRUSTEE AND HOLDERS
Section 7.01. Indenture Event of Default............................... 35
Section 7.02. Remedies................................................. 38
Section 7.03. Return of Aircraft, etc.................................. 40
Section 7.04. Indenture Trustee May Prove Debt......................... 42
Section 7.05. Remedies Cumulative...................................... 44
Section 7.06. Suits for Enforcement.................................... 44
Section 7.07. Discontinuance of Proceedings............................ 45
Section 7.08. Limitations on Suits by Holders.......................... 45
Section 7.09. Unconditional Right of Holders to Receive Principal,
Interest and Make-Whole Premium, and to Institute
Certain Suits............................................ 45
Section 7.10. Control by Holders....................................... 46
Section 7.11. Waiver of Past Indenture Default......................... 46
Section 7.12. Notice of Indenture Default.............................. 47
ARTICLE VIII
RIGHTS OF THE OWNER TRUSTEE
AND THE OWNER PARTICIPANT
Section 8.01. Certain Rights of Owner Trustee and Owner Participant.... 47
Section 8.02. Owner Participant's Right to Elect to Prepay or Purchase the
Certificates............................................. 50
Section 8.03. Certain Rights of Owner Participant...................... 52
ARTICLE IX
CONCERNING THE INDENTURE TRUSTEE
Section 9.01. Acceptance of Trusts..................................... 53
Section 9.02. Duties and Responsibilities of the Indenture Trustee;
During an Indenture Event of Default; Prior to an
Indenture Event of Default............................... 54
Section 9.03. Certain Rights of the Indenture Trustee.................. 56
Section 9.04. Indenture Trustee Not Responsible for Recitals, Disposition
of Certificates or Application of Proceeds Thereof....... 57
Section 9.05. Indenture Trustee and Agents May Hold Certificates;
Collections, etc......................................... 57
Section 9.06. Moneys Held by Indenture Trustee......................... 57
Section 9.07. Right of Indenture Trustee to Rely on Officer's
Certificate, etc......................................... 57
Section 9.08. Replacement Airframes and Replacement Engines............ 58
Section 9.09. Indenture and Security Agreement Supplement for
Replacements............................................. 61
Section 9.10. Effect of Replacement.................................... 61
Section 9.11. Compensation............................................. 61
ARTICLE X
CONCERNING THE HOLDERS
Section 10.01. Evidence of Action Taken by Holders..................... 62
Section 10.02. Proof of Execution of Instruments and of Holding of
Certificates............................................ 62
Section 10.03. Holders to Be Treated as Owners......................... 63
Section 10.04. Certificates Owned by Owner Trustee and the Lessee Deemed
Not Outstanding......................................... 63
Section 10.05. Right of Revocation of Action Taken..................... 64
Section 10.06. ERISA................................................... 64
ARTICLE XI
INDEMNIFICATION OF INDENTURE
TRUSTEE BY OWNER TRUSTEE
ARTICLE XII
SUCCESSOR TRUSTEES
Section 12.01. Notice of Successor Owner Trustee....................... 66
Section 12.02. Resignation and Removal of Indenture Trustee;
Appointment of Successor................................ 66
Section 12.03. Persons Eligible for Appointment as Indenture Trustee... 67
Section 12.04. Acceptance of Appointment by Successor Trustee.......... 67
Section 12.05. Merger, Conversion, Consolidation or Succession to Business
of Indenture Trustee.................................... 68
Section 12.06. Appointment of Separate Trustees........................ 69
ARTICLE XIII
SUPPLEMENTS AND AMENDMENTS TO THIS
TRUST INDENTURE AND OTHER DOCUMENTS
Section 13.01. Supplemental Indentures Without Consent of Holders...... 71
Section 13.02. Supplemental Indentures With Consent of Holders......... 72
Section 13.03. Effect of Supplemental Indenture........................ 74
Section 13.04. Documents to Be Given to Indenture Trustee.............. 74
Section 13.05. Notation on Certificates in Respect of Supplemental
Indentures.............................................. 74
Section 13.06. No Request Necessary for Lease Supplement or Indenture and
Security Agreement Supplement........................... 74
Section 13.07. Notices to Liquidity Providers.......................... 74
ARTICLE XIV
SATISFACTION AND DISCHARGE OF INDENTURE;
UNCLAIMED MONEYS
Section 14.01. Satisfaction and Discharge of Indenture; Termination of
Indenture............................................... 75
Section 14.02. Application by Indenture Trustee of Funds Deposited for
Payment of Certificates................................. 76
Section 14.03. Repayment of Moneys Held by Paying Agent................ 76
Section 14.04. Transfer of Moneys Held by Indenture Trustee and Paying
Agent Unclaimed for Two Years and Eleven Months......... 76
ARTICLE XV
MISCELLANEOUS
Section 15.01. Capacity in Which Acting................................ 77
Section 15.02. No Legal Title to Trust Indenture Estate in Holders..... 77
Section 15.03. Sale of Trust Indenture Estate by Indenture Trustee is
Binding................................................. 77
Section 15.04. Indenture for Benefit of Owner Trustee, Indenture Trustee,
Owner Participant, Holders and Liquidity Providers...... 77
Section 15.05. No Action Contrary to the Lessee's Rights Under the
Lease................................................... 78
Section 15.06. Notices................................................. 78
Section 15.07. Officer's Certificates and Opinions of Counsel; Statements
to Be Contained Therein................................. 79
Section 15.08. Severability............................................ 80
Section 15.09. No Oral Modifications or Continuing Waivers............. 80
Section 15.10. Successors and Assigns.................................. 80
Section 15.11. Headings................................................ 80
Section 15.12. Normal Commercial Relations............................. 80
Section 15.13. Governing Law; Counterparts............................. 80
Exhibit A -- Form of Indenture and Security Agreement Supplement
Exhibit B -- Form of Certificate
Schedule I -- [Reserved]
Schedule II -- Definitions
TRUST INDENTURE AND SECURITY AGREEMENT
(FEDERAL EXPRESS CORPORATION TRUST NO. N672FE)
TRUST INDENTURE AND SECURITY AGREEMENT (FEDERAL EXPRESS CORPORATION
TRUST NO. N672FE) dated as of May 1, 1997 (the "Indenture"), between STATE
STREET BANK AND TRUST COMPANY OF CONNECTICUT, NATIONAL ASSOCIATION, a national
banking association, not in its individual capacity, except as otherwise
specifically set forth herein (when acting in such individual capacity,
"SSB"), but solely as owner trustee (the "Owner Trustee") under the Trust
Agreement, as defined herein, and FIRST SECURITY BANK, NATIONAL ASSOCIATION, a
national banking association, as Indenture Trustee hereunder (the "Indenture
Trustee").
W I T N E S S E T H:
-------------------
WHEREAS, capitalized terms used herein shall have the respective
meanings set forth or referred to in Article I hereof;
WHEREAS, the Owner Participant and SSB have, immediately prior to the
execution and delivery of this Indenture, entered into a Trust Agreement
(Federal Express Corporation Trust No. N672FE) dated as of the date hereof (as
amended or otherwise modified from time to time in accordance with the
provisions thereof and of the Participation Agreement, the "Trust Agreement"),
whereby, among other things, SSB has declared a certain trust for the use and
benefit of the Owner Participant, subject, however, to the Lien of this
Indenture for the use and benefit of, and with the priority of payment to, the
holders of the Certificates issued hereunder, and the Owner Trustee is
authorized and directed to execute and deliver this Indenture;
WHEREAS, the Owner Trustee desires by this Indenture, among other
things (i) to provide for the issuance by the Owner Trustee of Certificates as
provided in the Participation Agreement, and (ii) to provide for the
assignment, mortgage and pledge by the Owner Trustee to the Indenture Trustee,
as part of the Trust Indenture Estate hereunder of the Owner Trustee's right,
title and interest in the Liquid Collateral and after the Delivery Date for
the assignment, mortgage and pledge by the Owner Trustee to the Indenture
Trustee, as part of the Trust Indenture Estate hereunder, of among other
things, certain of the Owner Trustee's estate, right, title and interest in
and to the Aircraft and the Indenture Documents and certain payments and other
amounts (other than Excepted Payments) received hereunder or thereunder in
accordance with the terms hereof, as security for, among other things, the
Owner Trustee's obligations to the Certificate Holders and for the benefit and
security of such Holders;
WHEREAS, all things have been done to make the Certificates, when
executed by the Owner Trustee, and authenticated, issued and delivered
hereunder, the valid obligations of the Owner Trustee; and
WHEREAS, all things necessary to make this Indenture the valid,
binding and legal obligation of the Owner Trustee, enforceable in accordance
with its terms, have been done and performed and have happened.
NOW, THEREFORE, the parties agree as follows:
GRANTING CLAUSE
NOW, THEREFORE, in consideration of the mutual promises contained
herein and to secure (i) the prompt payment of the principal of and Make-Whole
Premium, if any, and interest on, and all other amounts due with respect to,
all the Certificates from time to time outstanding under this Indenture and
all other amounts due hereunder and (ii) the performance and observance by the
Owner Trustee of all the agreements, covenants and provisions in this
Indenture, in the Certificates, in the Participation Agreement and in the
Lease contained for the benefit of the Holders of the Certificates, and the
prompt payment of any and all amounts from time to time owing under the
Participation Agreement by the Owner Trustee, the Owner Participant or the
Lessee to the Holders (collectively the "Secured Obligations") and for the uses
and purposes and subject to the terms and provisions of this Indenture, and in
consideration of the premises and of the covenants in this Indenture and in the
Certificates and of the purchase of the Certificates by their Holders, and of
the sum of $1 paid to the Owner Trustee by the Indenture Trustee at or before
the delivery of this Indenture, the receipt and sufficiency of which is hereby
acknowledged, the Owner Trustee has granted, bargained, sold, assigned,
transferred, conveyed, mortgaged, pledged, granted a first priority security
interest in and confirmed, and does hereby grant, bargain, sell, assign,
transfer, convey, mortgage, pledge and grant a first priority security
interest in and confirm to the Indenture Trustee, its successors and assigns,
in trust for the equal and ratable security and benefit of the Holders from
time to time of the Certificates, a first priority security interest in and
first mortgage Lien on all estate, right, title and interest of the Owner
Trustee in, to and under the following described property, rights and
privileges other than Excepted Payments, which collectively, excluding
Excepted Payments but including all property specifically subjected to the
Lien of this Indenture by the terms hereof, by any Indenture and Security
Agreement Supplement or any mortgage supplemental to this Indenture, are
included within the Trust Indenture Estate, subject always to the rights
granted to the Owner Trustee or the Owner Participant hereunder and to the
other terms and conditions of this Indenture:
(1) The Airframe, as the same is more particularly described in the
Indenture and Security Agreement Supplement and any airframe substituted in
replacement thereof pursuant to the provisions of this Indenture; the Engines,
as the same are more particularly described in the Indenture and Security
Agreement Supplement, whether or not such Engines shall be installed in or
attached to the Airframe or any other airframe, and any Replacement Engine
therefor; and all Parts in respect of the Airframe and the Engines and all
records, logs and other documents at any time maintained with respect to the
foregoing property;
(2) The Lease and all Rent thereunder, including, without limitation,
all amounts of Basic Rent and Supplemental Rent, and payments of any kind
thereunder and including all rights of the Owner Trustee to execute any
election or option or to give or receive any notice, consent, waiver or
approval under or in respect of the Lease or to accept any surrender of the
Aircraft or any part thereof as well as any rights, powers or remedies on the
part of the Owner Trustee, whether arising under the Lease or by statute or at
law or in equity or otherwise arising out of any Event of Default;
(3) The Purchase Agreement, the Purchase Agreement Assignment, the
AVSA Consent and Agreement, the Consent and Agreement, the Consent and
Guaranty, the GTA, the Engine Warranty Assignment and the Engine Consent,
AVSA's FAA Bill of Sale, AVSA's Warranty Bill of Sale, the Airbus Guaranty,
the Ancillary Agreements and the Participation Agreement (to the extent of
amounts payable to the Owner Trustee thereunder) (collectively, and together
with the Lease, the Trust Agreement and the Certificates, the "Indenture
Documents"), including all rights of the Owner Trustee to execute any election
or option or to give or receive any notice, consent, waiver or approval under
or in respect of any of the foregoing documents and instruments;
(4) All the tolls, rents, issues, profits, products, revenues and
other income (including sales proceeds) of the property subjected or required
to be subjected to the Lien of this Indenture, and all of the estate, right,
title and interest of the Owner Trustee in and to the same and every part of
said property;
(5) The Collateral Account, the Liquid Collateral and all other
moneys and securities (including Permitted Investments) now or hereafter paid
or deposited or required to be paid or deposited to or with the Indenture
Trustee by or for the account of the Owner Trustee pursuant to any term of any
Operative Agreement, except the Tax Indemnity Agreement, and held or required
to be held by the Indenture Trustee hereunder;
(6) All requisition proceeds with respect to the Aircraft or any part
thereof (to the extent of the Owner Trustee's interest therein pursuant to the
terms of the Lease) and all insurance proceeds with respect to the Aircraft or
any part thereof from insurance required to be maintained by the Lessee under
Article 13 of the Lease, but excluding any insurance maintained by the Lessee
and not required under Article 13 of the Lease; and
(7) All proceeds of the foregoing.
EXCLUDING, HOWEVER, from the foregoing grant of the Lien and security
interest of this Indenture and from the Trust Indenture Estate, (i) all
Excepted Payments, including without limitation all right, title and interest
of the Owner Participant in, to and under the Tax Indemnity Agreement and any
moneys due or to become due under the Tax Indemnity Agreement and all rights
to collect and enforce Excepted Payments and (ii) rights granted to or
retained by the Owner Trustee or the Owner Participant hereunder and SUBJECT
TO the following provisions:
(a) (i) whether or not an Indenture Event of Default shall occur and
be continuing, the Owner Trustee and the Owner Participant shall at all times
retain the right, to the exclusion of the Indenture Trustee, (A) to Excepted
Payments and to commence an action at law to obtain or otherwise demand, sue
for or receive and enforce the payment of such Excepted Payments, (B) to
exercise any election or option or make any decision or determination or to
give or receive any notice (including notice of Default), consent, waiver or
approval in respect of any such Excepted Payment, (C) to adjust (and make any
decision or determination or give any notice or consent with respect to) Basic
Rent and the percentages relating to Stipulated Loss Value and Termination
Value and the FPO Price as provided in Section 3.04 of the Lease and Section
15.01 of the Participation Agreement, (D) to exercise any election or option to
make any decision or determination, or to give or receive any notice, consent,
waiver or approval, or to take any other action in respect of, but in each
case only to the extent relating to, Excepted Payments (except for, in respect
of any portion of Basic Rent constituting an Excepted Payment, any action
changing the manner by which such Basic Rent is to be paid), (E) to retain the
rights of the "Lessor" with respect to solicitations of bids, and the election
to retain the Aircraft pursuant to Article 10 of the Lease, (F) to retain the
right of "Lessor" to determine the Fair Market Rental or Fair Market Value
pursuant to Article 4 of the Lease, (G) to exercise all other rights of the
Lessor under Articles 4 and 10 of the Lease with respect to the retention or
purchase by the Lessee or the Lessor of the Aircraft or the exercise by the
Lessee of the Lessee's renewal or purchase options, (H) to retain all rights
with respect to insurance maintained for its own account which Section 13.05
of the Lease specifically confers on the "Lessor", (I) to approve appraisers,
lawyers and other professionals and receive notices, certificates, reports,
filings, opinions and other documents, in each case with respect to matters
relating to the Owner Participant's tax position, (J) to approve any
accountants to be used in the verification of any Rent adjustment, and (K) to
exercise, to the extent necessary to enable it to exercise its rights under
Section 8.03 hereof, the rights of the "Lessor" under Section 17.04 of the
Lease;
(ii) whether or not an Indenture Event of Default shall occur and be
continuing, the Owner Trustee and the Indenture Trustee shall each have the
rights separately but not to the exclusion of the other (agreement of both
required in the case of clause (E) below), (A) to receive from the Lessee all
notices, certificates, reports, filings, opinions of counsel, copies of all
documents and all information which the Lessee is permitted or required to
give or furnish to the "Lessor" pursuant to the Lease or to the Owner Trustee
pursuant to any other Operative Agreement, (B) to exercise inspection rights
pursuant to Section 14.01 of the Lease (provided that if an Indenture Event of
Default shall be continuing, no inspection right of the Owner Trustee shall
interfere with the efforts of the Indenture Trustee to exercise remedies under
the Lease or this Indenture), (C) to maintain separate insurance pursuant to
Section 13.05 of the Lease and to retain all rights with respect to such
insurance maintained for its own account, (D) to give any notice of default
under Section 16.01 of the Lease and (E) the right to consent to changes to
the list of countries on Schedule III to the Participation Agreement;
(iii) subject to the last sentence of this clause (a), (A) so long as
no Indenture Event of Default not constituting an Event of Default shall have
occurred and be continuing (but subject to the provisions of Section 8.01
hereof), the Owner Trustee shall retain the right, to the exclusion of the
Indenture Trustee (or, if an Indenture Event of Default that is also an Event
of Default shall have occurred and be continuing, acting jointly with and not
to the exclusion of the Indenture Trustee), to exercise all rights, elections
and options of the Lessor in connection with the return of the Aircraft under
Article 12 of the Lease (but not Article 17 thereof, it being understood that
the Indenture Trustee shall have the exclusive right to exercise remedies
pursuant to such Article 17, including in respect of any related return of the
Aircraft pursuant to Article 12 of the Lease), including the right to approve
as satisfactory any accountants, engineers, appraisers or counsel to render
services for or issue appraisals, reports, certificates or opinions to the
Owner Trustee and to exercise all rights, elections and options of the Lessor
in connection with the return of the Aircraft pursuant to the express
provisions of the Operative Agreements, and (B) so long as no Indenture Event
of Default not constituting an Event of Default shall have occurred and be
continuing (but subject to the provisions of Section 8.01 hereof), the Owner
Trustee shall retain the right, jointly with the Indenture Trustee (agreement
of both not being required), to further assurances and financial information
from the Lessee pursuant to Section 19.01 of the Lease (other than the right
to receive any funds to be delivered to the "Lessor" under the Lease (except
funds delivered with respect to Excepted Payments) and under the Purchase
Agreement;
(iv) subject to the last sentence of this clause (a), at all times
the Owner Trustee shall have the right as Lessor, but not to the exclusion of
the Indenture Trustee, to seek specific performance of the covenants of the
Lessee under the Lease relating to the protection, insurance, maintenance,
possession and use of the Aircraft; and
(v) at all times the Owner Trustee and the Owner Participant shall
have the rights granted to them under Articles VI, VIII and X and Section 7.02
hereof.
Notwithstanding the foregoing, but subject always to the provisions of Section
15.05 hereof, the Indenture Trustee shall at all times have the right, to the
exclusion of the Owner Trustee and the Owner Participant, to (A) (other than
with respect to Excepted Payments) declare the Lease to be in default under
Article 17 thereof or any statute (including, without limitation, Article 2-A
of the Uniform Commercial Code) and (B) subject only to the provisions of this
Indenture, (other than in connection with Excepted Payments) exercise the
remedies set forth in such Article 17 of the Lease any statute (including
without limitation Article 2-A of the Uniform Commercial Code), at law and in
Article 7 hereof.
(b) The foregoing provisions in paragraph (a) above shall be equally
applicable to all rights of the Indenture Trustee in respect of Ancillary
Agreement I and Ancillary Agreement II, whether such rights are granted
directly to the Indenture Trustee under such agreements or are granted under
the Granting Clause of this Indenture.
(c) The leasehold interest granted to the Lessee by the Lease shall
not be subject to the security interest granted by this Indenture, and nothing
in this Indenture shall affect the rights of the Lessee under the Lease so
long as no Event of Default has occurred and is continuing.
HABENDUM CLAUSE
TO HAVE AND TO HOLD the aforesaid property unto the Indenture Trustee,
its successors and assigns, in trust for the equal and ratable benefit and
security of the Holders from time to time of the Certificates, without any
priority of any one Certificate over any other and for the uses and purposes
and subject to the terms and conditions set forth in this Indenture and the
rights of the Owner Trustee and the Owner Participant under this Indenture.
It is expressly agreed that anything contained in this Indenture to
the contrary notwithstanding, the Owner Trustee shall remain liable under the
Indenture Documents to perform all of the obligations assumed by it under any
of those documents, all in accordance with and pursuant to the terms and
provisions of those documents, and the Indenture Trustee and the Holders of
the Certificates shall have no obligation or liability under the Indenture
Documents by reason of or arising out of the assignment under this Indenture,
nor shall the Indenture Trustee or the Holders of the Certificates be required
or obligated in any manner to perform or fulfill any obligations of the Owner
Trustee under or pursuant to the Indenture Documents or, except as expressly
provided in this Indenture, to make any payment, or to make any inquiry as to
the nature or sufficiency of any payment received by it, or present or file
any claim, or take any action to collect or enforce the payment of any amounts
which may have been assigned to it or to which it may be entitled at any time
or times.
Effective upon the occurrence and continuance of an Indenture Event of
Default, the Owner Trustee hereby constitutes the Indenture Trustee the true
and lawful attorney of the Owner Trustee, irrevocably, with full power (in the
name of the Owner Trustee or otherwise), subject to the terms and conditions
of this Indenture, to ask, require, demand, receive, compound and give
acquittance for any and all Basic Rent, Supplemental Rent payable to the Owner
Trustee, Stipulated Loss Value and Termination Value payments, insurance
proceeds and any and all moneys and claims for moneys due and to become due
under or arising out of the Lease (subject to Section 8.01 hereof) or the
other Indenture Documents (other than Excepted Payments), to endorse any
checks or other instruments or orders in connection with the same and to file
any claims, take any action or institute any proceeding which the Indenture
Trustee may deem to be necessary or advisable in the premises.
Under the Lease the Lessee is directed to make all payments of Rent
(other than Excepted Payments not constituting Basic Rent) payable to the
Owner Trustee and all other amounts (other than Excepted Payments not
constituting Basic Rent) which are required to be paid to or deposited with
the Owner Trustee pursuant to the Lease directly to the Indenture Trustee at
such address in the United States of America as the Indenture Trustee shall
specify for application as provided in this Indenture. The Owner Trustee
agrees that if, notwithstanding such provision, it shall have received any
such amounts, promptly on receipt of any such payment, it will transfer to the
Indenture Trustee any and all moneys from time to time received by the Owner
Trustee constituting part of the Trust Indenture Estate for distribution by
the Indenture Trustee pursuant to this Indenture, except that the Owner
Trustee shall accept for distribution pursuant to the Trust Agreement (i) any
amounts distributed to it by the Indenture Trustee under this Indenture, and
(ii) any Excepted Payments not constituting Basic Rent.
The Owner Trustee agrees that at any time and from time to time, upon
the written request of the Indenture Trustee, the Owner Trustee will, at the
expense of the Lessee, promptly and duly execute and deliver or cause to be
duly executed and delivered any and all such further instruments and documents
as the Indenture Trustee may reasonably deem desirable in obtaining the full
benefits of the assignment hereunder and of the rights and powers herein
granted; provided, however, that the Owner Trustee shall have no obligation to
execute and deliver or cause to be executed or delivered to the Indenture
Trustee any such instrument or document if such execution and delivery would
result in the imposition of additional liabilities on the Owner Trustee or the
Owner Participant or would result in a burden on the Owner Participant's
business activities, unless the Owner Trustee or the Owner Participant, as the
case may be, is indemnified to its reasonable satisfaction against any losses,
liabilities and expenses incurred in connection with such execution and
delivery.
The Owner Trustee does hereby warrant and represent that it has not
assigned, pledged or otherwise disposed of, and hereby covenants that it will
not assign or pledge or otherwise dispose of, so long as the assignment
hereunder shall remain in effect and shall not have been terminated pursuant
to Section 14.01 hereof, any of its right, title or interest hereby assigned,
to anyone other than the Indenture Trustee, and that it will not, except in
respect of Excepted Payments or otherwise as provided in or permitted by this
Indenture, enter into an agreement amending or supplementing any of the
Indenture Documents, settle or compromise any claim (other than claims in
respect of Excepted Payments) against the Lessee arising under any of the
Indenture Documents, or submit or consent to the submission of any dispute,
difference or other matter arising under or in respect of any of the Indenture
Documents, to arbitration thereunder.
Concurrently with the delivery of this Indenture, the Owner Trustee
has delivered to the Indenture Trustee executed counterparts of the Trust
Agreement and the chattel paper original counterpart of the Lease.
It is hereby further covenanted and agreed by and between the parties
as follows:
ARTICLE I
DEFINITIONS
Section 1.01. Definitions. Unless the context otherwise requires,
capitalized terms utilized herein shall have the meanings set forth in
Schedule II hereto for all purposes of this Indenture and shall be equally
applicable to both the singular and plural forms of the terms defined.
ARTICLE II
ISSUE, EXECUTION, FORM AND
REGISTRATION OF CERTIFICATES;
COLLATERAL ACCOUNT
Section 2.01. Authentication and Delivery of Certificates.
Forthwith upon the execution and delivery of this Indenture, and from time to
time thereafter, Certificates in an aggregate principal amount not in excess
of the amount specified in Section 2.04 hereof (except as otherwise provided
in Sections 2.06 and 2.07 hereof) shall be executed by the Owner Trustee and
delivered to the Indenture Trustee for authentication, and the Indenture
Trustee shall thereupon authenticate and deliver said Certificates to or upon
the oral or written order of the Owner Trustee, signed, if written, by an
authorized officer of the Owner Trustee, without any further action by the
Owner Trustee.
Section 2.02. Execution of Certificates. The Certificates shall be
signed on behalf of the Owner Trustee by an authorized officer of SSB. Such
signatures may be the manual or facsimile signatures of such officer and minor
errors or defects in any reproduction of any such signature shall not affect
the validity or enforceability of any Certificate which has been duly
authenticated and delivered by the Indenture Trustee.
In case any officer of SSB who shall have signed any of the
Certificates shall cease to be such officer before the Certificate so signed
shall be authenticated and delivered by the Indenture Trustee or disposed of
by SSB, such Certificate nevertheless may be authenticated and delivered or
disposed of as though the person who signed such Certificate had not ceased to
be such officer of SSB; and any Certificate may be signed on behalf of the
Owner Trustee by such person or persons as, at the actual date of the
execution of such Certificate, shall be the proper officers of SSB, although
at the date of the execution and delivery of this Indenture any such person
was not such an officer. Certificates bearing the facsimile signatures of
individuals who were authorized officers of SSB at the time such Certificates
were issued shall bind the Owner Trustee, notwithstanding that such
individuals or any of them have ceased to hold such offices prior to the
authentication and delivery of such Certificates or did not hold such offices
at the respective dates of such Certificates.
Section 2.03. Certificate of Authentication. Only such Certificates
as shall bear thereon a certificate of authentication substantially in the
form set forth in Exhibit B, executed by the Indenture Trustee by manual
signature of one of its authorized officers, shall be entitled to the security
and benefits of this Indenture or be valid or obligatory for any purpose.
Such certificate by the Indenture Trustee upon any Certificate executed by the
Owner Trustee shall be conclusive evidence that the Certificate so
authenticated has been duly authenticated and delivered hereunder and that the
Holder, as evidenced on the Register, is entitled to the security and benefits
of this Indenture.
Section 2.04. Form and Terms of Certificates; Payments of Principal,
Make-Whole Premium and Interest. The Certificates and the Indenture Trustee's
certificate of authentication shall be substantially in the form set forth in
Exhibit B hereto. Certificates may differ with respect to Maturity (subject
to Section 15.01(d) of the Participation Agreement) and as to other terms.
The Certificates shall be issuable as registered securities without coupons
and shall be numbered, lettered, or otherwise distinguished in such manner or
in accordance with such plans as the Owner Trustee executing the same may
determine with the approval of the Indenture Trustee.
The aggregate principal amount of Certificates that may be
authenticated and delivered under this Indenture is limited as provided in the
form of Certificate attached as Exhibit B hereto. The Certificates shall be
issued in registered form only and in denominations of $1,000 and any integral
multiple thereof, shall be dated the Certificate Closing Date, shall be issued
in three separate series consisting of Series A, Series B and Series C and
shall be issued in the Maturities and principal amounts, and shall bear
interest at the rates per annum, specified in the form of Certificate set forth
in Exhibit B.
Any of the Certificates may be issued with appropriate insertions,
omissions, substitutions and variations, and may have imprinted or otherwise
reproduced thereon such legend or legends, not inconsistent with the
provisions of this Indenture, as may be required to comply with any law or
with any rules or regulations pursuant thereto, or with the rules of any
securities market in which the Certificates are admitted to trading, or to
conform to general usage.
Each Certificate shall bear interest from the date of original
issuance thereof or from the most recent date to which interest has been paid
and duly provided for, as the case may be, which shall be payable on the dates
specified on the face of the form of Certificate set forth in Exhibit B hereto
until the principal thereof is paid. Interest shall be calculated on the
basis of a 360-day year of twelve 30-day months.
Notwithstanding the preceding paragraph, each Certificate shall bear
interest at the Past Due Rate on any principal, interest and any other amount
payable hereunder or under such Certificate, which shall not be paid in full
when due (whether at stated maturity, by acceleration, by mandatory prepayment
or otherwise), for the period from and including the due date thereof to but
excluding the date the same is paid in full, payable from time to time on
demand of the Indenture Trustee.
The principal of, and Make-Whole Premium, if any, and interest on, the
Certificates shall be payable at the Corporate Trust Department of the
Indenture Trustee or at any office or agency maintained for such purpose
pursuant to Section 3.02 hereof in immediately available funds prior to 10:30
A.M. (New York time) on the due date thereof and the Indenture Trustee shall
remit all such amounts received by it to the Holders at such account or
accounts at such financial institution or institutions as the Holders shall
have designated to the Indenture Trustee in writing, in immediately available
funds, such payment to be made if the payment was received prior to 10:30 A.M.
New York time by the Indenture Trustee on any Business Day, by 12:00 noon New
York time on such Business Day; otherwise, the Indenture Trustee shall make
payment promptly, but not later than 11:00 A.M. New York time on the next
succeeding Business Day; provided, however, that interest may be payable at the
option of the Indenture Trustee or its Paying Agent, as defined in Section
3.04, by mailing checks for such interest payable to or upon the written order
of the Holders entitled thereto as they shall appear on the Register. If any
amount payable under the Certificates, or under this Indenture, falls due on a
day that is not a Business Day, then such sum shall be payable on the next
succeeding Business Day, without (provided that payment is made on such next
succeeding Business Day) additional interest thereon for the period of such
extension.
The Holder at the close of business on any Record Date with respect
to any Payment Date shall be entitled to receive the interest if any payable
on such Payment Date notwithstanding any transfer or exchange of such
Certificate subsequent to the Record Date and prior to such Payment Date,
except if and to the extent the Owner Trustee shall default in the payment of
the interest due on such Payment Date, in which case such defaulted interest
shall be paid to the Holder at the close of business on a subsequent Record
Date (which shall be not less than five (5) or more than fifteen (15) Business
Days prior to the date of payment of such defaulted interest) established by
notice given by mail by or on behalf of the Owner Trustee to the Holders not
less than fifteen (15) days preceding such subsequent Record Date.
The Owner Trustee agrees to pay to the Indenture Trustee for
distribution in accordance with Section 5.04 hereof (a) any and all indemnity
amounts received by the Owner Trustee which are payable by the Lessee to (i)
the Indenture Trustee in its individual capacity, (ii) the Subordination Agent
or (iii) each Liquidity Provider, in each case pursuant to Article 8 or 9 of
the Participation Agreement (it being acknowledged that the Lessee has been
instructed to pay such amounts to the Person or Persons entitled thereto) and
(b) the Owner Trustee's pro rata share of all amounts owed to each Liquidity
Provider by the Subordination Agent under each Liquidity Facility other than
amounts due as (i) repayments of the principal of advances thereunder, and (ii)
interest on Interest Drawings and Final Drawings except to the extent included
in Net Interest and Related Charges. As used in this Section, the Owner
Trustee's pro rata share means as of any time:
(A) with respect to all amounts other than Net Interest and
Related Charges, a fraction the numerator of which is the aggregate
principal balance then outstanding of the Certificates issued under
this Indenture (other than the Series C Certificates) and the
denominator of which is the aggregate principal balance of all
Certificates issued under this Indenture and the Related Indentures
(other than the Series C Certificates), plus
(B) with respect to all Net Interest and Related Charges (x)
if there exists a Payment Default under any Certificate issued under
this Indenture a fraction, the numerator of which is the aggregate
principal balance then outstanding of Certificates issued under this
Indenture (other than the Series C Certificates) and the denominator
of which is the aggregate principal balance then outstanding of all
Certificates issued under this Indenture and the Related Indentures
(other than the Series C Certificates) under which there exists a
Payment Default or (y) at all other times, zero.
As used in this Section, "Net Interest and Related Charges" means the sum of
(i) the amount, if any, by which interest payable to each Liquidity Provider
on any Interest Drawing and/or Final Drawing exceeds the amount which would be
payable if such drawings bore interest at the weighted average Past Due Rate
applicable to amounts in default on all Certificates plus (ii) any amounts
payable under Section 3.01, Section 3.02, Section 3.03, Section 3.09 or
Section 7.07 of each Liquidity Facility (or similar provisions of any
replacement Liquidity Facility) which result from any Interest Drawing or
Final Drawing. As used in this Section, a Payment Default when used in
connection with a Certificate issued hereunder or a Certificate issued under
any Related Indenture means a default in the payment of principal thereof or
interest thereon (which default has not been cured), other than solely because
of acceleration.
Section 2.05. Payments from Trust Indenture Estate Only. All
payments to be made by the Owner Trustee under this Indenture shall be made
only from the income and the proceeds from the Lessor's Estate to the extent
included in the Trust Indenture Estate and from any other amounts of the type
described in Section 5.01 hereof (but only to the extent actually received by
the Indenture Trustee) and only to the extent that the Owner Trustee shall
have sufficient income or proceeds from the Lessor's Estate to the extent
included in the Trust Indenture Estate (and such other amounts) to enable the
Indenture Trustee to make distributions of the amounts due in respect of the
Certificates in accordance with the terms hereof and thereof. Each Holder by
its acceptance of a Certificate agrees that it will look solely to the income
and proceeds from the Trust Indenture Estate (and such other amounts of the
type described in Section 5.01 hereof but only to the extent actually received
by the Indenture Trustee) to the extent available for distribution to it as
provided herein and that neither the Owner Participant, the Owner Trustee, SSB
nor the Indenture Trustee is personally liable to such Holder for any amounts
payable under this Indenture or such Certificate or for any amounts payable or
liability under any Certificate or this Indenture, except as expressly
provided herein in the case of SSB, the Owner Trustee or the Indenture
Trustee.
SSB is not personally liable to any Holder, the Lessee, the Owner
Participant or the Indenture Trustee for any amounts payable under this
Indenture or for any liability under this Indenture or the Certificates,
except as a result of SSB's gross negligence or willful misconduct, or as
otherwise expressly provided herein or in the Participation Agreement.
If (1) all or any part of the Lessor's Estate becomes the property of
a debtor subject to the reorganization provisions of the Bankruptcy Code, (2)
pursuant to such reorganization provisions the Owner Participant is required,
by reason of the Owner Participant being held to have recourse liability to
the debtor or the trustee of the debtor directly or indirectly, to make
payment on account of any amount payable as principal of or interest,
Make-Whole Premium or other amounts payable on the Certificates, and (3) the
Indenture Trustee actually receives any Recourse Amount which reflects any
payment by the Owner Participant on account of (2) above, then the Indenture
Trustee shall promptly refund to the Owner Participant such Recourse Amount.
Nothing contained in this paragraph shall prevent the Indenture Trustee from
enforcing any personal recourse obligation (and retaining the proceeds
thereof) of the Owner Participant under the Participation Agreement, or from
retaining any amount paid by the Owner Participant under Sections 5.01, 8.02
and 8.03 hereof.
Section 2.06. Registration, Transfer and Exchange. The Indenture
Trustee will keep, on behalf of the Owner Trustee, at each office or agency to
be maintained for the purpose as provided in Section 3.02 hereof a Register or
Registers on which, subject to such reasonable regulations as it may
prescribe, it will register, and will register the transfer of, Certificates
as provided in this Article. Such Register shall be in written form in the
English language or in any other form capable of being converted into such
form within a reasonable period of time.
Upon due presentation for registration of transfer of any Certificate
at any such office or agency, the Owner Trustee shall execute and the
Indenture Trustee shall authenticate and deliver in the name of the transferee
or transferees a new Certificate or Certificates of the same Series and
Maturity, principal amount and interest rate and in authorized denominations
for an equal aggregate principal amount; provided, that such Certificate being
transferred shall be cancelled in accordance with Section 2.08 hereof
simultaneously with the issuance of the new Certificate.
Any Certificate or Certificates may be exchanged for a Certificate or
Certificates of the same Series and Maturity and interest rate but in other
authorized denominations, in an equal aggregate principal amount.
Certificates to be exchanged shall be surrendered at any office or agency to
be maintained by the Indenture Trustee for the purpose as provided in Section
3.02 hereof, and the Owner Trustee shall execute and the Indenture Trustee
shall authenticate and deliver in exchange therefor the Certificate or
Certificates which the Holder making the exchange shall be entitled to
receive, bearing numbers not contemporaneously or previously outstanding.
All Certificates presented for registration of transfer, exchange,
prepayment or payment shall (if so required by the Owner Trustee or the
Indenture Trustee) be duly endorsed by, or be accompanied by a written
instrument or instruments of transfer in form satisfactory to the Owner
Trustee and the Indenture Trustee duly executed by the Holder or its attorney
duly authorized in writing and (except in the case of transfers pursuant to
Section 15.01 of the Participation Agreement) the Indenture Trustee may
require evidence satisfactory to it as to the compliance of any such transfer
with the Securities Act.
The Indenture Trustee may require payment from the Holder of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any exchange or registration of transfer of Certificates. No
service charge shall be levied for any such transaction.
The Indenture Trustee shall not be required to exchange or register a
transfer of any Certificates (a) for a period of fifteen (15) days immediately
preceding the first mailing of notice of prepayment of such Certificates or
(b) with respect to which notice of prepayment has been given pursuant to
Section 6.03 hereof and such notice has not been revoked.
All Certificates issued upon any transfer or exchange of Certificates
shall be valid obligations of the Owner Trustee, evidencing the same debt, and
entitled to the same security and benefits under this Indenture, as the
Certificates surrendered upon such transfer or exchange.
Section 2.07. Mutilated, Defaced, Destroyed, Lost and Stolen
Certificates. In case any temporary or definitive Certificate shall become
mutilated, defaced or be apparently destroyed, lost or stolen, the Owner
Trustee in its discretion may execute, and upon the oral or written request of
any officer of SSB, the Indenture Trustee shall authenticate and deliver, a
new Certificate of like Maturity, principal amount and interest rate as the
Certificate being replaced, bearing a number not contemporaneously or
previously outstanding, in exchange and substitution for the mutilated or
defaced Certificate, or in lieu of and substitution for the Certificate so
apparently destroyed, lost or stolen. In the case of any Certificate so
apparently destroyed, lost or stolen, the applicant for a substitute
Certificate shall furnish to the Owner Trustee and to the Indenture Trustee
such security or indemnity as may be required by them to indemnify and defend
and to hold each of them harmless and evidence to their satisfaction of the
apparent destruction, loss or theft of such Certificate and of the ownership
thereof.
Upon the issuance of any substitute Certificate, the Owner Trustee or
the Indenture Trustee may require payment from the Holder of a sum sufficient
to cover any tax or other governmental charge that may be imposed in relation
thereto and any other reasonable expenses incurred in connection therewith.
In case any Certificate which has matured or is about to mature, or has been
called for prepayment in full, shall become mutilated or defaced or be
apparently destroyed, lost or stolen, the Owner Trustee may, instead of
issuing a substitute Certificate, pay or authorize the payment of the same
(without surrender thereof except in the case of a mutilated or defaced
Certificate), if the applicant of any Certificate so apparently destroyed,
lost or stolen, for such payment shall furnish to the Owner Trustee and to the
Indenture Trustee such security or indemnity as any of them may require to
hold each of them harmless and the applicant shall also furnish to the Owner
Trustee and the Indenture Trustee evidence to their satisfaction of the
apparent destruction, loss or theft of such Certificate and of the ownership
thereof.
Every substitute Certificate issued pursuant to the provisions of
this Section by virtue of the fact that any Certificate is apparently
destroyed, lost or stolen shall constitute an original additional contractual
obligation of the Owner Trustee, whether or not the apparently destroyed, lost
or stolen Certificate shall be enforceable at any time by anyone and shall be
entitled to all the security and benefits of (but shall be subject to all the
limitations of rights set forth in) this Indenture equally and proportionately
with any and all other Certificates duly authenticated and delivered
hereunder. All Certificates shall be held and owned upon the express
condition that, to the extent permitted by law, the foregoing provisions are
exclusive with respect to the replacement or payment of mutilated, defaced, or
apparently destroyed, lost or stolen Certificates and shall preclude any and
all other rights or remedies notwithstanding any law or statute existing or
hereafter enacted to the contrary with respect to the replacement or payment
of negotiable instruments or other securities without their surrender.
Section 2.08. Cancellation of Certificates; Destruction Thereof. All
Certificates surrendered for payment, prepayment, registration of transfer or
exchange, if surrendered to the Owner Trustee or any agent of the Owner
Trustee or the Indenture Trustee, shall be delivered to the Indenture Trustee
for cancellation or, if surrendered to the Indenture Trustee, shall be
cancelled by it; and no Certificates shall be issued in lieu thereof except as
expressly permitted by any of the provisions of this Indenture. The Indenture
Trustee shall destroy cancelled Certificates held by it and deliver a
certificate of destruction to the Owner Trustee. If the Owner Trustee shall
acquire any of the Certificates, such acquisition shall not operate as a
prepayment or satisfaction of the indebtedness represented by such
Certificates unless and until the same are delivered to the Indenture Trustee
for cancellation.
Section 2.09. Temporary Certificates. Pending the preparation of
definitive Certificates, the Owner Trustee may execute and, upon the oral or
written request of an officer of SSB, the Indenture Trustee shall authenticate
and deliver temporary Certificates (printed, lithographed, typewritten or
otherwise reproduced, in each case in form satisfactory to the Indenture
Trustee). Temporary Certificates shall be issuable as registered Certificates
without coupons, of any authorized denomination, and substantially in the form
of the definitive Certificates but with such omissions, insertions and
variations as may be appropriate for temporary Certificates, all as may be
determined by the Owner Trustee with the concurrence of the Indenture Trustee.
Temporary Certificates may contain such reference to any provisions of this
Indenture as may be appropriate. Every temporary Certificate shall be
executed by the Owner Trustee and, upon the oral or written request of an
authorized officer of the Owner Trustee, be authenticated by the Indenture
Trustee upon the same conditions and in substantially the same manner, and
with like effect, as the definitive Certificates. Without unreasonable delay
the Owner Trustee shall execute and shall furnish definitive Certificates and
thereupon temporary Certificates shall be surrendered in exchange therefor
without charge at any office or agency to be maintained by the Indenture
Trustee for the purpose pursuant to Section 3.02 hereof, and, upon the oral
or written request of an authorized officer of the Owner Trustee, the
Indenture Trustee shall authenticate and deliver in exchange for such
temporary Certificates an equal aggregate principal amount of definitive
Certificates of the same Series and Maturities and interest rates and in
authorized denominations. Until so exchanged, temporary Certificates shall be
entitled to the same security and benefits under this Indenture as definitive
Certificates.
Section 2.10. Termination of Interest in Trust Indenture Estate. A
Holder shall not, as such, have any further interest in, or other right with
respect to, the Trust Indenture Estate when and if the principal amount of and
Make-Whole Premium, if any, and interest on and other amounts due under all
Certificates held by such Holder and all other sums payable to such Holder
hereunder and under the other Operative Agreements shall have been paid in
full.
Section 2.11. Certificates in Respect of Replacement Aircraft. Upon
the execution and delivery of an Indenture and Security Agreement Supplement
covering a Replacement Airframe and/or Replacement Engine, as provided in
Section 9.09 hereof, each Certificate shall be deemed to have been issued in
connection with such Replacement Airframe and/or Replacement Engine and each
Certificate issued thereafter upon a transfer or exchange of, or as a
replacement for, a Certificate, shall be designated as having been issued in
connection with such Replacement Airframe and/or Replacement Engine, but
without any other change therein except as provided for in this Article II.
Section 2.12. Assumption of Obligations Under Certificates and Other
Operative Agreements. If, in accordance with and subject to the satisfaction
of the conditions set forth in Section 7.11 of the Participation Agreement,
the Lessee shall assume all of the obligations of the Owner Trustee hereunder,
under the Certificates and all other Operative Agreements, the Owner
Participant and the Owner Trustee shall be released and discharged from any
further obligations hereunder and under the
Certificates and all other Operative Agreements (except for any recourse
obligations of the Owner Participant or the Owner Trustee in its individual
capacity with respect to matters arising out of events occurring prior to such
assumption).
Section 2.13. Establishment of Collateral Account. (a) The
Indenture Trustee shall, pursuant to the Collateral Account Control Agreement,
establish, or cause to be established, with State Street Bank and Trust
Company, who shall represent and warrant that it is a financial intermediary
(as defined in Section 8-313(4) of the Connecticut Uniform Commercial Code),
in its name as secured party hereunder an Eligible Deposit Account entitled
"First Security Bank, National Association, as secured party under the Trust
Indenture and Security Agreement (Federal Express Corporation Trust No.
N672FE) dated as of May 1, 1997, with the Owner Trustee referred to therein".
(b) If at any time the Collateral Account ceases to be an Eligible
Deposit Account, the Indenture Trustee shall within two (2) Business Days,
establish a new Collateral Account meeting the conditions specified in the
definition of Eligible Deposit Account, and shall transfer any cash or any
investments in the Collateral Account to such new Collateral Account.
(c) The Indenture Trustee shall have exclusive dominion and control
of the Collateral Account and all funds therein, and shall make withdrawals
from the Collateral Account only in accordance with this Indenture.
(d) The Collateral Account Control Agreement shall require State
Street Bank and Trust Company to send confirmation to the Indenture Trustee
and the Lessee that it has credited the Specified Investments to the
Collateral Account and to make appropriate entries on its books identifying
the Specified Investments as pledged to the Indenture Trustee.
Section 2.14. Investment of Funds on Deposit in the Collateral
Account. (a) Funds deposited in the Collateral Account shall be invested and
reinvested by the Indenture Trustee, subject to Section 17.02 of the
Participation Agreement, at the risk of the Owner Trustee, in Specified
Investments selected by the Lessee and approved by the Indenture Trustee for
the account of the Owner Trustee in accordance with Section 2.14(b) below;
provided, however, that if Specified Investments meeting the requirements of
Section 2.14(b) are not available on any day on which funds are to be invested
as contemplated by the preceding provisions of this Section 2.14(a), the
Indenture Trustee may leave such funds in the Collateral Account uninvested
until the earliest of (i) the date on which an appropriate Specified
Investment becomes available, (ii) the Delivery Date and (iii) the Cut-Off
Date. The Indenture Trustee shall maintain possession of the negotiable
instruments or securities, if any, evidencing such Specified Investments and,
in the case of any Specified Investments in book-entry form, such Specified
Investments shall be credited to an account of the Indenture Trustee or a
financial intermediary with the applicable Federal Reserve Bank; provided,
however, if the account is credited to the financial intermediary, the
financial intermediary shall make written confirmation thereof to the
Indenture Trustee and make an appropriate entry on its books identifying the
Specified Investments as pledged to the Indenture Trustee. All proceeds of
and any income, interest and other payments and distributions on or with
respect to any Specified Investments shall be deposited in or credited to the
Collateral Account and thereafter shall be held, invested and applied by the
Indenture Trustee in accordance with this Indenture. The Indenture Trustee
shall promptly notify the Owner Trustee and the Lessee of any Losses.
(b) On the Certificate Closing Date, the Indenture Trustee shall
invest the amount deposited in the Collateral Account pursuant to Section
2.01(c) of the Participation Agreement in Specified Investments selected by
the Lessee and approved by the Indenture Trustee for the account of the Owner
Trustee which mature on or prior to August 19, 1997. If the Delivery Date is
postponed pursuant to Section 3.02(c) or Section 3.05 of the Participation
Agreement, the proceeds of the Specified Investments referred to in the
preceding sentence may be invested in Specified Investments which mature
within 14 days after the rescheduled Delivery Date. If no Delivery Date
occurs, then any Specified Investment shall mature no later than the 15th day
after the Cut-Off Date.
(c) If for any reason the Indenture Trustee shall be required to
make any distributions of the Liquid Collateral prior to the maturity date of
any Specified Investment, the Indenture Trustee shall cause the same to be
sold in accordance with standard commercial practices, and the Lessee, for the
account of the Owner Trustee, shall forthwith compensate the Indenture Trustee
for any Losses as provided in Section 17.02(a) of the Participation Agreement.
(d) Pursuant to Section 17.02(b) of the Participation Agreement,
interest payable on the Certificates during the period in which funds are on
deposit in the Collateral Account shall be paid by the Lessee.
Section 2.15. Release of Debt Portion and Lien on the Collateral
Account and the Liquid Collateral on Delivery Date. (a) Subject to the
satisfaction or waiver of the conditions precedent to the Indenture Trustee's
obligations set forth in Section 4.02 of the Participation Agreement, on the
Delivery Date, subject to the proviso to Section 3.02(a) of the Participation
Agreement, the Indenture Trustee shall release from the Collateral Account an
amount of Liquid Collateral, equal to the lesser of (A) the Debt Portion and
(B) the amount actually in the Collateral Account on the Delivery Date.
Subject to the proviso to Section 3.02(a) of the Participation Agreement, such
amount so released, together with the amount of any Losses received from the
Lessee pursuant to Section 17.02(a) of the Participation Agreement, shall be
used to finance a portion of the Purchase Price payable by (x) the Owner
Trustee as contemplated by Section 3.02(a) of the Participation Agreement or
(y) if the fifth sentence of Section 3.05(a) of the Participation Agreement
shall be applicable, by the Lessee as contemplated by such sentence. Any
amount remaining in the Collateral Account after such release (net of any
uncompensated Losses) shall be remitted by the Indenture Trustee on behalf of
the Owner Trustee to the Lessee pursuant to Section 3.02(a)(C) of the
Participation Agreement.
(b) The Lien of this Indenture on the Collateral Account and the
Liquid Collateral shall terminate on the Delivery Date following the transfer
of amounts described in Section 3.02(a) of the Participation Agreement.
Section 2.16. Cut-Off Date. In the case of a prepayment under
Section 6.02(a)(vi) hereof, the Indenture Trustee shall release from the
Collateral Account all amounts held in the Collateral Account on such date.
Such amount so released, together with the amount of any Losses received from
the Lessee pursuant to Sections 17.02(a) and 17.02(c) of the Participation
Agreement, shall be applied to pay amounts due under Section 6.02(b)(1) hereof
on the 15th day following the Cut-Off Date, and any amount (net of any
uncompensated Losses) remaining after such release and application shall be
remitted by the Indenture Trustee, on behalf of the Owner Trustee, to the
Lessee.
Section 2.17. Subordination. (a) The Owner Trustee and, by
acceptance of its Certificates of any Series, each Holder of such Series,
hereby agree that no payment or distribution shall be made on or in respect of
the Secured Obligations owed to such Certificate Holder of such Series,
including any payment or distribution of cash, property or securities after
the commencement of a proceeding of the type referred to in clause (v), (vi)
or (vii) of Section 7.01 hereof, except as expressly provided in Article V
hereof.
(b) By the acceptance of its Certificates of any Series
(other than Series A), each Holder of such Series agrees that in the event
that such Holder, in its capacity as a Holder, shall receive any payment or
distribution on any Secured Obligations in respect of such Series which it is
not entitled to received under this Section 2.17 or Article V hereof, it will
hold any amount so received in trust for the Senior Holder (as defined in
Section 2.17(c) hereof) and will forthwith turn over such payment to the
Indenture Trustee in the form received to be applied as provided in Article V
hereof.
(c) As used in this Section 2.17, the term "Senior Holder"
shall mean, (i) the Holders of Series A Certificates until the Secured
Obligations in respect of Series A Certificates have been paid in full, (ii)
after the Secured Obligations in respect of Series A Certificates have been
paid in full, the Holders of Series B Certificates until the Secured
Obligations in respect of Series B Certificates have been paid in full and
(iii) after the Secured Obligations in respect of Series B Certificates have
been paid in full, the Holders of Series C Certificates until the Secured
Obligations in respect of Series C Certificates have been paid in full.
ARTICLE III
COVENANTS
Section 3.01. Payment of Principal, Make-Whole Premium and Interest.
The Owner Trustee covenants and agrees that it will, subject to Section 2.05
hereof, duly and punctually pay or cause to be paid the principal of, and
interest and Make-Whole Premium, if any, and all other amounts due on, each of
the Certificates and under this Indenture at the place or places, at the
respective times and in the manner provided in this Indenture and in the
Certificates.
Principal and interest and other amounts due hereunder or under the
Certificates shall be payable in dollars on the due date thereof, to the
Indenture Trustee at the Corporate Trust Department (or such other account at
such other financial institution as the Indenture Trustee may designate for
the purpose). If any amount payable under the Certificates or under this
Indenture falls due on a day which is not a Business Day, then such sum shall
be payable on the next succeeding Business Day, without (provided that payment
is made on such next succeeding Business Day) additional interest thereon for
the period of such extension.
Section 3.02. Offices for Payments, etc. So long as any of the
Certificates remain outstanding, the Indenture Trustee will maintain the
following: (a) an office or agency where the Certificates may be presented
for payment and (b) a facility or agency in New York, New York where the
Certificates may be presented for registration of transfer and for exchange
and for prepayment as provided in this Indenture (the "Registrar"). The
Registrar shall keep a register (the "Register") with respect to the
Certificates and their transfer and exchange. The Indenture Trustee may
appoint one or more co-registrars ("Co-Registrars") for the Certificates and
may terminate any such appointment at any time upon written notice. The term
"Registrar" includes any Co-Registrar.
The Indenture Trustee shall initially act as Registrar.
Section 3.03. Appointment to Fill a Vacancy in Office of Indenture
Trustee. The Owner Trustee, whenever necessary to avoid or fill a vacancy in
the office of Indenture Trustee, will, with the consent of the Lessee,
appoint, in the manner provided in Section 12.02 hereof, an Indenture Trustee,
so that there shall at all times be an Indenture Trustee hereunder.
Section 3.04. Paying Agents. Whenever the Indenture Trustee in its
sole discretion shall appoint a paying agent (the "Paying Agent"), it will
cause the Paying Agent to execute and deliver an instrument in which the
Paying Agent shall agree with the Indenture Trustee, subject to the provisions
of this Section:
(a) that it will hold all sums received by it as such agent for the
payment of the principal of, and interest and Make-Whole Premium, if any,
on the Certificates (whether such sums have been paid to it by the
Indenture Trustee or the Owner Trustee) in trust for the benefit of the
Holders or of the Indenture Trustee, and
(b) that it will give the Indenture Trustee notice of any failure by
the Owner Trustee to make any payment of the principal of or interest or
Make-Whole Premium, if any, on the Certificates when the same shall be due
and payable.
Anything in this Section to the contrary notwithstanding, the
agreements to hold sums in trust as provided in this Section are subject to
the provisions of Sections 14.03 and 14.04 hereof.
Section 3.05. Covenants of SSB and the Owner Trustee.
(a) SSB hereby covenants and agrees to perform its covenants set
forth in Sections 7.04(b) and 7.04(c) of the Participation Agreement.
(b) The Owner Trustee hereby covenants and agrees as follows:
(i) in the event a Responsible Officer of the Owner Trustee shall have
actual knowledge of an Indenture Event of Default, an Indenture Default or
an Event of Loss, the Owner Trustee will give prompt written notice of such
Indenture Event of Default, Indenture Default or Event of Loss to the
Indenture Trustee, the Lessee and the Owner Participant;
(ii) the Owner Trustee will furnish to the Indenture Trustee,
promptly upon receipt thereof, duplicates or copies of all reports,
notices, requests, demands, certificates, financial statements and other
instruments furnished to the Owner Trustee under the Lease, including,
without limitation, a copy of each report or notice from an insurer or an
insurance broker received pursuant to Article 13 of the Lease, to the
extent that the same shall not have been furnished to the Indenture Trustee;
(iii) the Owner Trustee will not enter into any business or other
activity other than the business of owning the Aircraft, the leasing
thereof to the Lessee and the carrying out of the transactions contemplated
hereby and by the Lease, the Participation Agreement, the Trust Agreement
and the other Indenture Documents; and
(iv) except as contemplated by the Operative Agreements, the Owner
Trustee will not contract for, create, incur or assume any debt, and will
not guarantee (directly or indirectly or by an instrument having the effect
of assuring another's payment or performance on any obligation or
capability of so doing, or otherwise), endorse or otherwise take action to
become contingently liable, directly or indirectly, in connection with the
debt of any other Person.
Section 3.06. [Reserved]
Section 3.07. Disposal of Trust Indenture Estate. At any time and
from time to time any part of the Trust Indenture Estate may be sold or
disposed of in accordance with the provisions of this Indenture and the Lease.
The Indenture Trustee shall, from time to time, release any part of the Trust
Indenture Estate so sold or disposed of or as to which an Event of Loss has
occurred or as to which the Lease has been terminated from the Lien of this
Indenture. In addition, to the extent that such property constitutes an
Airframe or Engine, the further requirements of Section 9.08 hereof shall be
complied with.
Section 3.08. No Representations or Warranties as to Aircraft or
Documents. NEITHER THE INDENTURE TRUSTEE NOR THE OWNER TRUSTEE NOR SSB NOR
THE OWNER PARTICIPANT MAKES OR SHALL BE DEEMED TO HAVE MADE ANY REPRESENTATION
OR WARRANTY, EXPRESS OR IMPLIED, AS TO THE TITLE, AIRWORTHINESS, WORKMANSHIP,
VALUE, CONDITION, DESIGN, COMPLIANCE WITH SPECIFICATIONS, MERCHANTABILITY OR
FITNESS FOR ANY PARTICULAR USE OR PURPOSE OF THE AIRCRAFT OR ANY ENGINE, AS TO
THE ABSENCE OF ANY INFRINGEMENT OF ANY PATENT, TRADEMARK OR COPYRIGHT, AS TO
THE ABSENCE OF OBLIGATIONS BASED ON STRICT LIABILITY IN TORT OR ANY OTHER
REPRESENTATION OR WARRANTY WITH RESPECT TO THE AIRCRAFT OR ANY ENGINE
WHATSOEVER, except that SSB warrants that on the Delivery Date (a) the Owner
Trustee shall have received whatever title was conveyed to it by AVSA, and (b)
the Aircraft shall be free and clear of Lessor's Liens attributable to SSB.
Neither SSB, the Indenture Trustee nor the Owner Participant makes or shall be
deemed to have made any representation or warranty as to the validity,
legality or enforceability of this Indenture, the Trust Agreement, the
Certificates or any Indenture Document or as to the correctness of any
statement contained in any thereof, except for the representations and
warranties of SSB and the Indenture Trustee made under this Indenture or in
the Participation Agreement or of the Owner Participant made under the
Participation Agreement.
Section 3.09. Further Assurances; Financing Statements. At any time
and from time to time, upon the request of the Indenture Trustee or the
Lessee, at the expense of the Lessee, the Owner Trustee shall promptly and
duly execute and deliver any and all such further instruments and documents as
may be specified in such request and as are necessary or advisable to perfect,
preserve or protect the Liens and assignments created or intended to be
created hereby, or to obtain for the Indenture Trustee the full benefit of the
specific rights and powers granted herein, including, without limitation, the
execution and delivery of Uniform Commercial Code financing statements and
continuation statements with respect thereto, or similar instruments relating
to the perfection of the Liens or assignments created or intended to be created
hereby.
ARTICLE IV
HOLDER LISTS
Section 4.01. Holder Lists; Ownership of Certificates. (a) The
Indenture Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
the Holders. If the Indenture Trustee is not the Registrar, the Registrar
shall furnish to the Indenture Trustee semi-annually not more than ten (10)
days after each Record Date, as of such Record Date, or at such other times as
the Indenture Trustee may request in writing, a list, in such form and as of
such date as the Indenture Trustee may reasonably require, containing all the
information in the possession or control of the Registrar as to the names and
addresses of the Holders and the amounts and Maturities of the Certificates
held by such Holders.
(b) Ownership of the Certificates shall be proved by the Register
kept by the Registrar.
ARTICLE V
RECEIPT, DISTRIBUTION AND APPLICATION OF
INCOME FROM THE TRUST INDENTURE ESTATE
Section 5.01. Basic Rent Distribution. Except as otherwise provided
in Section 5.03 hereof, each installment of Basic Rent, any payment of
interest on overdue installments of Basic Rent, any payment received by the
Indenture Trustee pursuant to Section 8.03(a) hereof and any payment received
by the Indenture Trustee pursuant to Section 17.02(b) or 17.02(c) of the
Participation Agreement shall be distributed by the Indenture Trustee no later
than the time herein provided in the following order of priority:
first, (i) so much of such installment or payment as shall be
required to pay in full the aggregate amount of the payment or
payments of Principal Amount and interest and other amounts (as
well as any interest on any overdue Principal Amount and, to the
extent permitted by applicable law, on any overdue interest and
any other overdue amounts) then due under all Series A
Certificates shall be distributed to the Holders of Series A
Certificates ratably, without priority of one over the other, in
the proportion that the amount of such payment or payments then
due under each Series A Certificate bears to the aggregate amount
of the payments then due under all Series A Certificates;
(ii) after giving effect to paragraph (i) above, so much of
such installment or payment as shall be required to pay in full
the aggregate amount of the payment or payments of Principal
Amount and interest and other amounts (as well as any interest on
any overdue Principal Amount and, to the extent permitted by
applicable law, on any overdue interest and any other overdue
amounts) then due under all Series B Certificates shall be
distributed to the Holders of Series B Certificates ratably,
without priority of one over the other, in the proportion that the
amount of such payment or payments then due under each Series B
Certificate bears to the aggregate amount of the payments then due
under all Series B Certificates; and
(iii) after giving effect to paragraph (ii) above, so much of
such installment or payment as shall be required to pay in full
the aggregate amount of the payment or payments of Principal
Amount and interest and other amounts (as well as any interest on
any overdue Principal Amount and, to the extent permitted by
applicable law, on any overdue interest and any other overdue
amounts) then due under all Series C Certificates shall be
distributed to the Holders of Series C Certificates ratably,
without priority of one over the other, in the proportion that the
amount of such payment or payments then due under each Series C
Certificate bears to the aggregate amount of the payments then due
under all Series C Certificates; and
second, the balance if any of such installment or payment remaining
thereafter shall be distributed to the Owner Trustee, or as the
Owner Trustee may request, for distribution pursuant to the Trust
Agreement.
Section 5.02. Event of Loss and Replacement; Prepayment. (a)
Except as otherwise provided in Section 5.03 hereof, any payment received by
the Indenture Trustee as the result of an Event of Loss with respect to the
Aircraft (including pursuant to Section 11.03(e) of the Lease, but, in the
case of said Section 11.03(e), subject to the time limits specified therein)
or as the result of, or in connection with any event under the Lease giving
rise to, a prepayment pursuant to Section 6.02 hereof, shall be promptly
distributed by the Indenture Trustee in the following order of priority:
first, to reimburse the Indenture Trustee for any costs or expenses
reasonably incurred in connection with such prepayment,
second, (i) to pay the amounts specified in paragraph (i) of clause
"second" of Section 5.03 hereof then due and payable in respect
of the Series A Certificates;
(ii) after giving effect to paragraph (i) above, to pay the
amounts specified in paragraph (ii) of clause "second" of Section
5.03 hereof then due and payable in respect of the Series B
Certificates; and
(iii) after giving effect to paragraph (ii) above, to pay the
amounts specified in paragraph (iii) of clause "second" of
Section 5.03 hereof then due and payable in respect of the Series
C Certificates;
provided that payments pursuant to this clause "second" shall be
made without the payment of Make-Whole Premium except in the
particular circumstances provided in Section 6.02(b) hereof; and
third, as provided in clause "third" of Section 5.03 hereof;
provided that if a Replacement Airframe shall be substituted for an Airframe
subject to an Event of Loss as provided in Section 11.03 of the Lease and
Section 9.08 hereof, any proceeds which result from such Event of Loss and are
paid to the Indenture Trustee shall be held by the Indenture Trustee as part
of the Trust Indenture Estate and, unless otherwise applied pursuant to
Section 5.01 or 5.03 hereof, such proceeds shall be released to the Lessee
upon the release of such damaged Airframe and the replacement thereof as
herein provided.
(b) Any amounts received directly or indirectly from any governmental
authority, insurer or other party pursuant to any provision of Article 11 or
13 of the Lease as the result of loss or damage not constituting an Event of
Loss (x) with respect to the Aircraft, or as a result of such loss or damage
constituting an Event of Loss if and to the extent that such amounts would at
the time be required to be paid to the Lessee pursuant to said Article 11 or
13 but for the fact that a Payment Default, Bankruptcy Default or an Event of
Default shall have occurred and be continuing or (y) are pledged to the Lessor
as security in connection with an Event of Loss in accordance with Section
11.03(e) of the Lease, shall be held by the Indenture Trustee as security for
the obligations of the Lessee under the Lease and the Participation Agreement
and shall be invested in accordance with the terms of Section 5.08 hereof and
at such time as the conditions for payment to the Lessee specified in said
Article 11 or 13, as the case may be, shall be fulfilled and there shall not
be continuing any Payment Default, Bankruptcy Default or Event of Default,
such amount, and the proceeds of any investment thereof, shall, to the extent
not theretofore applied, be paid to the Lessee to the extent provided in the
Lease.
Section 5.03. Payment After Indenture Event of Default, etc. Except
as otherwise provided in Sections 5.02(b), 5.04(b), 5.04(c) and 5.05 hereof,
all payments (other than Excepted Payments) received and all amounts held or
realized by the Indenture Trustee after an Indenture Event of Default shall
have occurred and so long as such an Indenture Event of Default shall be
continuing, and after the Certificates shall have become due and payable as
provided in Section 7.02(b) or (c) hereof, shall be promptly distributed by
the Indenture Trustee in the following order of priority:
first, so much of such payments or amounts as shall be required to
reimburse the Indenture Trustee for any tax, expense, charge or
other loss (including, without limitation, all amounts to be
expended at the expense of, or charged upon the tolls, rents,
revenues, issues, products and profits of, the property included
in the Trust Indenture Estate pursuant to Section 7.03(b) hereof)
incurred by the Indenture Trustee (to the extent not previously
reimbursed) (including, without limitation, the expenses of any
sale, taking or other proceeding, attorneys' fees and expenses,
court costs, and any other expenditures incurred or expenditures
or advances made by the Indenture Trustee or the Holders in the
protection, exercise or enforcement of any right, power or remedy
or any damages sustained by the Indenture Trustee or the Holders,
liquidated or otherwise, upon such Indenture Event of Default)
shall be applied by the Indenture Trustee as between itself and
the Holders in reimbursement of such expenses;
second, (i) so much of such payments or amounts remaining as shall be
required to pay in full the aggregate unpaid Principal Amount of
all Series A Certificates, and the accrued but unpaid interest
and other amounts due thereon and all other Secured Obligations
(other than Make-Whole Premium) in respect of the Series A
Certificates to the date of distribution, shall be distributed to
the Holders of Series A Certificates, and in case the aggregate
amount so to be distributed shall be insufficient to pay in full
as aforesaid, then ratably, without priority of one over the
other, in the proportion that the aggregate unpaid Principal
Amount of all Series A Certificates held by each holder plus the
accrued but unpaid interest and other amounts due hereunder or
thereunder (other than Make-Whole Premium) to the date of
distribution, bears to the aggregate unpaid Principal Amount of
all Series A Certificates held by all such holders plus the
accrued but unpaid interest and other amounts due thereon (other
than Make-Whole Premium) to the date of distribution;
(ii) after giving effect to paragraph (i) above, so much of
such payments or amounts remaining as shall be required to pay in
full the aggregate unpaid Principal Amount of all Series B
Certificates, and the accrued but unpaid interest and other
amounts due thereon and all other Secured Obligations (other than
Make-Whole Premium) in respect of the Series B Certificates to
the date of distribution, shall be distributed to the Holders of
Series B Certificates, and in case the aggregate amount so to be
distributed shall be insufficient to pay in full as aforesaid,
then ratably, without priority of one over the other, in the
proportion that the aggregate unpaid Principal Amount of all
Series B Certificates held by each holder plus the accrued but
unpaid interest and other amounts due hereunder or thereunder
(other than Make-Whole Premium) to the date of distribution,
bears to the aggregate unpaid Principal Amount of all Series B
Certificates held by all such holders plus the accrued but unpaid
interest and other amounts due thereon (other than Make-Whole
Premium) to the date of distribution; and
(iii) after giving effect to paragraph (ii) above, so much of
such payments or amounts remaining as shall be required to pay in
full the aggregate unpaid Principal Amount of all Series C
Certificates, and the accrued but unpaid interest and other
amounts due thereon and all other Secured Obligations (other than
Make-Whole Premium) in respect of the Series C Certificates to
the date of distribution, shall be distributed to the Holders of
Series C Certificates, and in case the aggregate amount so to be
distributed shall be insufficient to pay in full as aforesaid,
then ratably, without priority of one over the other, in the
proportion that the aggregate unpaid Principal Amount of all
Series C Certificates held by each holder plus the accrued but
unpaid interest and other amounts due hereunder or thereunder
(other than Make-Whole Premium) to the date of distribution,
bears to the aggregate unpaid Principal Amount of all Series C
Certificates held by all such holders plus the accrued but unpaid
interest and other amounts due thereon (other than Make-Whole
Premium) to the date of distribution;
(it being understood that amounts payable under this clause
"second" shall not include Make-Whole Premium); and
third, the balance, if any of such payments or amounts remaining
thereafter shall be distributed to the Owner Trustee for
distribution pursuant to the Trust Agreement.
Section 5.04. Certain Payments. (a) Except as otherwise provided
in this Indenture, any payments received by the Indenture Trustee which are to
be applied according to any provision in any other Indenture Document shall be
applied thereunder in accordance therewith.
(b) The Indenture Trustee will distribute, promptly upon receipt, any
indemnity or other payment received by it from the Owner Trustee or the Lessee
in respect of (i) the Indenture Trustee in its individual capacity, (ii) the
Subordination Agent, (iii) each Liquidity Provider, and (iv) the Pass Through
Trustee, in each case whether pursuant to Article 8 or 9 of the Participation
Agreement or as Supplemental Rent, directly to the Person (which may include
the Indenture Trustee) entitled thereto. Any payment received by the
Indenture Trustee under clause (b) of the last paragraph of Section 2.04 shall
be distributed to the Subordination Agent to be distributed in accordance with
the terms of the Intercreditor Agreement.
(c) Notwithstanding anything to the contrary contained herein, any
sums received by the Indenture Trustee which constitute Excepted Payments
shall be distributed promptly upon receipt by the Indenture Trustee directly
to the Person or Persons entitled thereto.
Section 5.05. Other Payments. Any payments received by the Indenture
Trustee for which no provision as to the application thereof is made elsewhere
in this Indenture or in any other Indenture Document (including without
limitation Article 9 of the Lease) shall be distributed by the Indenture
Trustee (a) to the extent received or realized at any time prior to the
payment in full of all obligations to the Holders, in the order of priority
specified in Section 5.01 hereof, and (b) to the extent received or realized
at any time after payment in full of all obligations to the Holders, in the
following order of priority:
first, in the manner provided in clause "first" of Section 5.03 hereof
and
second, in the manner provided in clause "third" of Section 5.03 hereof.
Section 5.06. Payments to Owner Trustee. Any amounts distributed
hereunder by the Indenture Trustee to the Owner Trustee shall be paid to the
Owner Trustee by wire transfer of immediately available funds of the type
received by the Indenture Trustee at such office and to such account or
accounts of such entity or entities as shall be designated by notice from the
Owner Trustee to the Indenture Trustee from time to time. The Owner Trustee
hereby notifies the Indenture Trustee that unless and until the Indenture
Trustee receives notice to the contrary from the Owner Trustee, all amounts to
be distributed to the Owner Trustee hereunder for distribution in accordance
with the Trust Agreement shall be distributed by wire transfer of immediately
available funds of the type received by the Indenture Trustee to such account
of the Owner Participant as may be specified pursuant to Section 2.06 of the
Trust Agreement.
Section 5.07. Application of Payments. Each payment of principal of
and interest or other amounts due on each Certificate shall, except as
otherwise provided herein, be applied,
first, to the payment of interest on such Certificate due and payable to
the date of such payment, as provided in such Certificate, as
well as any interest on overdue principal and Make-Whole Premium,
if any, and, to the extent permitted by law, interest and other
amounts due thereunder,
second, to the payment of any other amount (other than the principal of
such Certificate) due hereunder to the Holder of such Certificate
or under such Certificate,
third, to the payment of the principal of such Certificate if then due
hereunder or under such Certificate and
fourth, the balance, if any remaining thereafter, to the payment of the
principal of such Certificate remaining unpaid (provided that
such Certificate shall not be subject to prepayment without the
consent of the affected Holder except as permitted by Sections
6.02, 6.06 and 8.02 hereof); provided that, solely for the
purpose of determining whether an Indenture Event of Default
shall have occurred and be continuing, each such payment shall be
deemed applied in the following order of priority: first, in the
manner provided in clause "first" above, second, in the manner
provided in clause "third" above, third, in the manner provided
in clause "second" above and fourth, in the manner provided in
clause "fourth" above.
Section 5.08. Investment of Amounts Held by Indenture Trustee.
Amounts held by the Indenture Trustee pursuant to Section 5.02(b) hereof or
pursuant to any provision of any Indenture Document providing for investment
by the Indenture Trustee of sums pursuant to Section 23.01 of the Lease or
this Section 5.08 shall be invested by the Indenture Trustee from time to time
in securities selected by (i) so long as no Event of Default shall have
occurred and be continuing, the Lessee (and in the absence of written
direction by the Lessee, the Indenture Trustee shall invest such monies in
direct obligations of the United States of America) or (ii) so long as an
Event of Default shall have occurred and be continuing, the Indenture Trustee
and in each case shall be of the type listed in clauses (i) through (iv) of
Section 23.01 of the Lease. Unless otherwise expressly provided in this
Indenture, any income realized as a result of any such investment, net of the
Indenture Trustee's reasonable fees and expenses in making such investment,
shall be held and applied by the Indenture Trustee in the same manner as the
principal amount of such investment is to be applied and any losses, net of
earnings and such reasonable fees and expenses, shall be charged against the
principal amount invested. The Lessee shall be responsible for and will
promptly pay to the Indenture Trustee or the Lessor, as the case may be, on
demand, the amount of any loss realized as the result of any such investment
(together with any fees, commissions and other costs and expenses, if any,
incurred by the Indenture Trustee or the Lessor in connection with such
investment), such amount to be disposed of in accordance with the terms hereof
or the Lease, as the case may be. The Indenture Trustee shall not be liable
for any loss resulting from any investment made by it or any investment sold
by it under this Indenture in accordance with instructions from the Lessee
other than by reason of its willful misconduct or gross negligence, and any
such investment may be sold (without regard to its maturity) by the Indenture
Trustee without instructions whenever the Indenture Trustee reasonably
believes such sale is necessary to make a distribution required by this
Indenture.
Unless otherwise confirmed in writing, an account statement delivered
by the Indenture Trustee to the Owner Trustee (with a copy to the Lessee)
shall be deemed written confirmation by the Owner Trustee that the investment
transactions identified therein accurately reflect the investment directions
given to the Indenture Trustee by or on behalf of the Lessee, unless the
Lessee notifies the Indenture Trustee in writing to the contrary within 30
days of the date of receipt of such statement.
Section 5.09. Withholding Taxes. The Indenture Trustee shall
withhold any Taxes required to be withheld, except to the extent that the
Holder has furnished evidence satisfactory to the Indenture Trustee of any
exemption from withholding claimed by such Holder and under no circumstances
shall the failure of any such Holder to receive any amounts so withheld
constitute an Indenture Event of Default. Notwithstanding any provision to
the contrary in Sections 5.01 through 5.05 hereof and subject to Article 8 of
the Participation Agreement, if the Lessee is required to pay any such Tax, or
any interest or penalty thereon, or to indemnify the Owner Participant or the
Owner Trustee with respect thereto pursuant to Section 8.01(c) of the
Participation Agreement, the Lessee shall be entitled to receive any payments
otherwise distributable to the Holder of any Certificate who was subject to
such Tax pursuant to Sections 5.01 to 5.05 hereof until the amounts the Lessee
shall have so paid in respect of any such Tax shall have been recovered in
full by the Lessee.
ARTICLE VI
PREPAYMENT OF CERTIFICATES
Section 6.01. No Prepayment Prior to Maturity. Except as provided
in Sections 6.02, 6.06 and 8.02 hereof, the Certificates may not be prepaid
prior to their respective Maturities.
Section 6.02. Prepayment of Certificates. (a) The Outstanding
Certificates shall be prepaid in full (and not in part):
(i) If an Event of Loss occurs with respect to the Airframe or with
respect to the Airframe and the Engines or engines then installed on the
Airframe (unless pursuant to Section 11.03 of the Lease and Section 9.08
hereof replacement equipment is substituted therefor).
(ii) If the Lessee, pursuant to Section 4.02(a) of the Lease, gives
notice of purchase of the Aircraft (and Section 2.12 hereof shall not be
applicable in connection with such purchase), but subject to Section
6.02(c) below.
(iii) If the Owner Participant or the Owner Trustee on behalf of the
Owner Participant gives notice of prepayment to the Indenture Trustee
pursuant to Section 8.02 hereof (unless such notice is revoked in
accordance with such Section).
(iv) If the Lessee, pursuant to Section 10.01 of the Lease, gives
notice of a voluntary termination for obsolescence or surplus, but subject
to Section 6.02(c) below.
(v) Pursuant to Section 15.01 of the Participation Agreement in
connection with a refinancing of the Certificates, but subject to Section
6.02(c) below.
(vi) As contemplated by Section 2.16 hereof and Section 3.05(b) of the
Participation Agreement if the Delivery Date has not occurred on or prior
to the Cut-Off Date.
(vii) At the option of the Owner Trustee with the prior written
consent of the Lessee and the Owner Participant upon not less than 25 days'
prior written notice.
(b) In the event of a prepayment of the Certificates pursuant to
Sections 6.02(a)(ii), (iv) and (v) above, the Owner Trustee, having received
notice from the Lessee in accordance with and subject to the terms of Section
4.02(a) or 10.01 of the Lease or Article 15 of the Participation Agreement, as
the case may be, shall give irrevocable (subject to Section 6.02(c) hereof)
written notice to the Indenture Trustee and to the Holders of all of the
Certificates specifying the Business Day on which the Certificates shall be
prepaid. In the case of a prepayment of the Certificates pursuant to Section
6.02(a)(i) above, the Certificates shall be prepaid in full on the Loss
Payment Date as defined in Section 11.02 of the Lease. In the case of a
prepayment of the Certificates pursuant to Section 6.02(a)(iii) above, the
Certificates shall be prepaid in full on the date so designated in the notice
referred to in Section 8.02 hereof. In the case of a prepayment of the
Certificates pursuant to Section 6.02(a)(ii) or (iv) above, the Certificates
shall be prepaid in full on the Termination Date. In the case of a prepayment
of the Certificates pursuant to Section 6.02(a)(v) above, the Certificates
shall be prepaid on the effective date of the Refinancing. In the case of a
prepayment of the Certificates pursuant to Section 6.02(a)(vi) above, the
Certificates shall be prepaid on the 15th day following the Cut-Off Date. In
the case of a prepayment of the Certificates pursuant to Section 6.02(a)(vii)
above, the Certificates shall be prepaid on the date designated in the notice
referred to therein. The day on which the Certificates are to be prepaid
pursuant to this Section 6.01(b) is herein referred to as the "Prepayment
Date".
On or prior to the Prepayment Date, immediately available funds shall
be deposited with the Indenture Trustee in an amount in respect of the
Certificates equal to:
(1) (i) if such prepayment is made under any provision of Section 6.02
hereof on or after the applicable Premium Termination Date, or (ii) if such
prepayment is made prior to the applicable Premium Termination Date
pursuant to Section 6.02(a)(i), 6.02(a)(iii) (if clause (i) of the first
sentence of Section 8.02(a) hereof is applicable) or 6.02(a)(vi) above, the
sum of (A) the aggregate principal amount of such Certificates then
Outstanding, (B) accrued interest on the Certificates to the Prepayment
Date and (C) all other aggregate sums due the Indenture Trustee hereunder
or under the Participation Agreement or the Lease, but excluding any
Make-Whole Premium or other premium or penalty, or
(2) if such prepayment is made prior to the applicable Premium
Termination Date pursuant to Section 6.02(a)(ii), 6.02(a)(iii) (if clause
(ii) of the first sentence of Section 8.02(a) hereof is applicable),
6.02(a)(iv), 6.02(a)(v) or 6.02(a)(vii) above, the sum of the amounts
specified in clauses (A), (B) and (C) of the preceding clause (1) plus any
Make-Whole Premium payable in respect of all Certificates with respect to
which the Premium Termination Date therefor has not occurred
(the aggregate amount required to be paid pursuant to this sentence being
herein referred to as the "Prepayment Price").
(c) If, pursuant to the last paragraph of Section 10.01(f) of the
Lease, no Termination Date shall occur, or if, pursuant to Section 4.02(a) of
the Lease, the Lessee revokes its notice of election to purchase, or if no
refinancing shall occur pursuant to Section 15.01 of the Participation
Agreement, the Lessee shall give notice thereof to the Indenture Trustee, and
the prepayment proposed to be effected in respect thereof shall not occur.
Section 6.03. Notice of Prepayment to Holders. In order to effect
any prepayment set forth in Section 6.02(a) hereof, the Indenture Trustee
shall give prompt notice by first class mail of prepayment to each Holder of
an Outstanding Certificate. Any notice of prepayment given by the Owner
Trustee may be revoked by the Owner Trustee at any time on or before the
Prepayment Date by prompt notice to the Holders except as otherwise provided
in the Lease or the Participation Agreement.
All notices of prepayment shall state:
(1) the Prepayment Date,
(2) the applicable basis for determining the Prepayment Price,
(3) that on the Prepayment Date, subject to the provisions hereof,
the Prepayment Price will become due and payable, and that interest
on the Certificates shall cease to accrue on and after such
Prepayment Date, and
(4) the place or places where such Certificates are to be
surrendered for payment.
Section 6.04. Deposit of Prepayment Price and Sinking Fund Redemption
Price. On the Prepayment Date or the Sinking Fund Redemption Date (as defined
in Section 6.06 hereof), the Owner Trustee shall, to the extent an amount
equal to the Prepayment Price or the Sinking Fund Redemption Price (as defined
in Section 6.06 hereof), as the case may be, shall not then be held in cash or
Permitted Investments (marked-to-market net of all costs and expenses of
liquidation thereof) by the Indenture Trustee in immediately available funds
and deposited for the purpose, pay to the Indenture Trustee an amount equal to
the difference between (a) the amount then so held and (b) the Prepayment
Price or the Sinking Fund Redemption Price, as the case may be. If there
shall so be on deposit and/or deposited the applicable Prepayment Price or
Sinking Fund Redemption Price on or prior to a Prepayment Date or Sinking Fund
Redemption Date, interest shall cease to accrue in respect of all or, in the
case of a mandatory sinking fund redemption, the relevant portion being
prepaid of, the Outstanding Certificates on and after such Prepayment Date or
such Sinking Fund Redemption Date.
Section 6.05. Certificates Payable on Prepayment Date. On the
Prepayment Date, the Outstanding Certificates shall (except (A) if the Owner
Trustee has requested the Indenture Trustee to revoke such notice of
prepayment in accordance with Section 6.03 hereof or (B) as otherwise provided
in the Lease) become due and payable and from and after such Prepayment Date
(unless there shall be a default in the payment of the Prepayment Price) such
Certificates shall cease to bear interest. Upon surrender by any Holder of
its Certificate for prepayment in accordance with said notice, such Holder
shall be paid the principal amount of its Certificate then outstanding, accrued
interest thereon to the Prepayment Date, all other sums due to such Holder
hereunder, under the Participation Agreement or the Lease, plus, if a
Make-Whole Premium is payable pursuant to Section 6.02(b) hereof, the
Make-Whole Premium in respect of such Certificate.
If any Certificate called for prepayment shall not be so paid upon
surrender thereof for prepayment, the principal shall, until paid, continue to
bear interest from the Prepayment Date at the interest rate applicable to such
Certificate.
Section 6.06. Mandatory Sinking Fund Redemption. The Certificates
shall be subject to partial redemption, at the aggregate principal amount set
forth for the Certificates of the respective Series and Maturity, on a pro
rata basis, on each date specified in this Section (a "Sinking Fund Redemption
Date") for such payment on the Certificates of such Series and Maturity. The
Owner Trustee shall deposit funds sufficient to pay the Sinking Fund
Redemption Price with the Indenture Trustee as provided in Section 6.04
hereof. The Indenture Trustee shall pay from the amounts so deposited on each
applicable Sinking Fund Redemption Date to the Certificates of each Series in
the order of priority set forth in clause "first" of Section 5.01 and among the
Holders of the Certificates of each Series then Outstanding on a pro rata
basis the aggregate principal amount set forth below, together with accrued
interest to such Sinking Fund Redemption Date, but without Make-Whole Premium
(the "Sinking Fund Redemption Price"):
Principal Amount
Series A Series B Series C
Certificates Certificates Certificates
Sinking Fund with a Maturity of with a Maturity of with a Maturity of
Redemption Date January 15, 2018 January 15, 2018 January 15, 2014
- ---------------- ------------------ ------------------ ------------------
July 15, 1997 0 0 0
January 15, 1998 192,704 250,055 0
July 15, 1998 474,776 0 0
January 15, 1999 350,565 250,305 75,480
July 15, 1999 316,915 0 0
January 15, 2000 339,643 250,305 333,740
July 15, 2000 327,837 0 0
January 15, 2001 408,040 250,305 333,740
July 15, 2001 259,440 0 0
January 15, 2002 581,596 250,305 333,740
July 15, 2002 85,884 0 0
January 15, 2003 667,480 250,305 530,847
July 15, 2003 0 0 0
January 15, 2004 667,480 250,305 721,692
July 15, 2004 0 0 0
January 15, 2005 667,480 250,305 839,540
July 15, 2005 0 0 0
January 15, 2006 667,480 250,305 808,994
July 15, 2006 0 0 0
January 15, 2007 667,480 250,305 3,739,396
July 15, 2007 0 0 0
January 15, 2008 667,480 250,305 652,598
July 15, 2008 0 0 0
January 15, 2009 667,480 250,305 1,528,250
July 15, 2009 0 0 0
January 15, 2010 667,480 336,300 1,665,821
July 15, 2010 0 0 0
January 15, 2011 667,480 2,884,537 0
July 15, 2011 0 0 0
January 15, 2012 667,480 3,168,600 0
July 15, 2012 0 0 0
January 15, 2013 3,890,457 1,009,716 0
July 15, 2013 0 0 0
January 15, 2014 754,478 0 4,531,162
July 15, 2014 0 0 0
January 15, 2015 5,701,038 0 0
July 15, 2015 0 0 0
January 15, 2016 6,145,275 0 0
July 15, 2016 0 0 0
January 15, 2017 6,624,128 0 0
July 15, 2017 0 0 0
January 15, 2018 246,424 2,112,437 0
ARTICLE VII
INDENTURE EVENTS OF DEFAULT; REMEDIES
OF INDENTURE TRUSTEE AND HOLDERS
Section 7.01. Indenture Event of Default. "Indenture Event of
Default" means any of the following events (whatever the reason for such
Indenture Event of Default and whether it shall be voluntary or involuntary or
come about or be effected by operation of law or pursuant to or in compliance
with any judgment, decree or order of any court or any order, rule or
regulation of any administrative or governmental body):
(i) any Event of Default specified in Article 16 of the Lease (other
than an Event of Default arising solely as the result of the failure to
make an Excepted Payment unless the Owner Participant shall notify the
Indenture Trustee in writing that such failure shall constitute an
Indenture Event of Default); or
(ii) the failure of the Owner Trustee other than by reason of a
Default or an Event of Default (i) to pay principal, interest or Make-Whole
Premium, if any, on any Certificate when due, and such failure shall have
continued unremedied for ten (10) Business Days after the date when due or
(ii) to pay any other amounts hereunder or under the Certificates when due
and such failure shall have continued unremedied for a period of thirty
(30) days after the Owner Trustee and the Owner Participant shall receive
written demand therefor from the Indenture Trustee or by the Holders of not
less than 25% in aggregate principal amount of Outstanding Certificates; or
(iii) (A) any representation or warranty made by SSB, the Owner
Trustee, the Owner Participant or the Owner Participant Guarantor or any
Owner Trustee Guarantor, in any Operative Agreement or in any certificate of
SSB, the Owner Trustee, the Owner Participant, or the Owner Participant
Guarantor furnished to the Indenture Trustee or any Holder in connection
herewith or therewith or pursuant hereto or thereto shall prove to have been
incorrect when made and was and remains in any respect material to the
Holders and if such misrepresentation is capable of being corrected as of a
subsequent date and if such correction is being sought diligently, and such
misrepresentation shall not have been corrected within 30 days following
notice thereof identified as a "Notice of Indenture Event of Default" being
given to the Owner Trustee and the Owner Participant by the Indenture
Trustee or by a Majority in Interest of Holders; or
(B) any (x) covenant made by the Owner Trustee in the fifth paragraph
following the Habendum Clause hereof or Section 3.05(b)(iii) hereof or
Section 7.02(b) or 7.12 of the Participation Agreement shall be breached in
any respect, (y) covenant made by the Owner Participant in Section 7.02(c)
or the last sentence of Section 7.13 of the Participation Agreement shall
be breached in any respect or (z) other covenant made by the Owner Trustee,
in its individual capacity or as Owner Trustee, or by any Owner Trustee
Guarantor, or by the Owner Participant or the Owner Participant Guarantor
in any Operative Agreement shall be breached in any respect and such breach
shall remain unremedied for a period of thirty (30) days after there has
been given to the Owner Trustee and the Owner Participant by the Indenture
Trustee or by Certificate Holders of not less than 25% in aggregate
principal amount of Outstanding Certificates a written notice identified as
a "Notice of Indenture Event of Default" specifying such breach and
requiring it to be remedied; or
(iv) the Owner Trustee, the Lessor's Estate, any Owner Trustee
Guarantor, the Owner Participant or the Owner Participant Guarantor shall
file any petition or answer seeking for itself any reorganization,
arrangement, composition, readjustment, liquidation, dissolution or similar
relief under any present or future bankruptcy, insolvency or similar
statute, law or regulation;
(v) an order for relief shall be entered in respect of the Owner
Trustee or any Owner Trustee Guarantor or the Owner Participant or the Owner
Participant Guarantor or the Lessor's Estate by a court having jurisdiction
in the premises in an involuntary case under the federal bankruptcy laws as
now or hereafter in effect; or the Owner Trustee or any Owner Trustee
Guarantor or the Owner Participant or the Owner Participant Guarantor or
the Lessor's Estate shall file any answer admitting or not contesting the
material allegations of a petition filed against the Owner Trustee or any
Owner Trustee Guarantor or the Owner Participant or the Owner Participant
Guarantor or the Lessor's Estate in any proceeding referred to in clause
(vi) below or seek or consent or acquiesce in the appointment of any
trustee, custodian, receiver or liquidator of the Owner Trustee or any
Owner Trustee Guarantor or the Owner Participant or the Owner Participant
Guarantor or the Lessor's Estate, as the case may be, or of all or any
substantial part of its properties; or
(vi) without the consent or acquiescence of the Owner Trustee or any
Owner Trustee Guarantor or the Owner Participant or the Owner Participant
Guarantor or the Lessor's Estate, as the case may be, an order shall be
entered constituting an order for relief or approving a petition for relief
or reorganization or any other petition seeking any reorganization,
arrangement, composition, readjustment, liquidation, dissolution or other
similar relief under any present or future bankruptcy, insolvency or
similar statute, law or regulation, or if any such petition shall be filed
against the Owner Trustee or any Owner Trustee Guarantor or the Owner
Participant or the Owner Participant Guarantor or the Lessor's Estate, as
the case may be, and such petition shall not be dismissed within 60 days,
or if, without the consent or acquiescence of the Owner Trustee or any
Owner Trustee Guarantor or the Owner Participant or the Owner Participant
Guarantor or the Lessor's Estate, as the case may be, an order shall be
entered appointing a trustee, custodian, receiver or liquidator of the
Owner Trustee or any Owner Trustee Guarantor or the Owner Participant or
the Owner Participant Guarantor or the Lessor's Estate, as the case may be,
or of all or any substantial part of the properties of the Owner Trustee or
any Owner Trustee Guarantor or the Owner Participant or the Owner
Participant Guarantor or the Lessor's Estate, as the case may be, and such
order shall not be dismissed within 60 days; or
(vii) any Owner Trustee Guaranty or the Owner Participant Guaranty
shall cease to be a valid and enforceable obligation of any Owner Trustee
Guarantor or the Owner Participant Guarantor, as the case may be, or
otherwise shall not be in full force and effect.
Section 7.02. Remedies. (a) If an Indenture Event of Default shall
have occurred and be continuing and so long as the same shall be continuing
unremedied, then and in every such case, the Indenture Trustee may, and when
required by the provisions of Article IX or Section 7.02(c) hereof, shall (i)
exercise any or all of the rights and powers and pursue any and all of the
remedies pursuant to this Article VII and (ii) in the event such Indenture
Event of Default is an Indenture Event of Default referred to in clause (i) of
Section 7.01 hereof, exercise any and all of the remedies pursuant to Article
17 of the Lease; provided that without the consent of the Owner Trustee and
the Owner Participant such exercise of remedies shall not occur until after
the latest date on which the Owner Trustee may cure the related Event of
Default pursuant to Section 8.03 hereof. The Indenture Trustee may (subject
to the provisions of the next succeeding paragraph) take possession of all or
any part of the properties covered or intended to be covered by the Lien and
security interest created hereby or pursuant hereto and may exclude the Owner
Participant, the Owner Trustee, the Lessee and any transferee of the Lessee
and all Persons claiming under any of them wholly or partly therefrom. In
addition, the Indenture Trustee may (subject to the provisions of the next
succeeding paragraph) exercise any other right or remedy in lieu of or in
addition to the foregoing that may be available to it under applicable law, or
proceed by appropriate court action to enforce the terms hereof, of the Lease,
or both, or to rescind the Lease. Without limiting any of the foregoing, it
is understood and agreed that the Indenture Trustee may exercise any right of
sale of the Aircraft available to it, even though it shall not have taken
possession of the Aircraft and shall not have possession thereof at the time
of such sale.
Notwithstanding the foregoing, it is understood and agreed that if the
Indenture Trustee shall proceed to foreclose the Lien of this Indenture, it
shall substantially simultaneously therewith, to the extent the Indenture
Trustee is then entitled to do so hereunder and under the Lease, and is not
then stayed or otherwise prevented from doing so, proceed (to the extent it
has not already done so) to declare the Lease in default and commence the
exercise in good faith of one or more of the significant remedies under
Article 17 of the Lease (as the Indenture Trustee determines in its sole
discretion) for the purpose of recovering the Aircraft. It is further
understood and agreed that if the Indenture Trustee is unable to exercise one
or more remedies under Article 17 of the Lease because of any stay or
operation of law or otherwise, the Indenture Trustee shall not be entitled to
foreclose the Lien of this Indenture (A) until the earlier of (i) 60 days from
the date of any such stay or applicable order under Section 1110 of the
Bankruptcy Code plus any extension consented to by the Indenture Trustee or
the Holders of Certificates of such period as permitted under Section 1110(b)
of the Bankruptcy Code and (ii) the date of actual repossession of the
Aircraft by the Indenture Trustee or (B) if the Lessee has agreed to perform
or assume the Lease pursuant to Section 365 or 1110 of the Bankruptcy Code and
no Event of Default (other than as specified in Section 16.01(e), (f) or (g)
of the Lease, or other Event of Default in respect of which the 30-day period
referred to in clause (a)(1)(B)(ii)(I) of Section 1110 of the Bankruptcy Code
shall not yet have expired) shall be continuing. For the avoidance of doubt,
it is expressly understood and agreed that except as aforesaid the
above-described inability of the Indenture Trustee to exercise any right or
remedy under the Lease shall in no event and under no circumstances prevent
the Indenture Trustee from exercising all of its rights, powers and remedies
under this Indenture, including, without limitation, this Article VII. The
Indenture Trustee further agrees that notice of intent to foreclose shall be
given to the Owner Trustee at the earlier of the commencement of any
proceeding or at least 30 days prior to the consummation of foreclosure of the
Lien of this Indenture.
(b) If an Indenture Event of Default under clause (iv), (v) or (vi)
of Section 7.01 hereof shall occur and be continuing, the unpaid principal of
all Outstanding Certificates, together with interest accrued but unpaid
thereon and all other amounts due thereunder, but without Make-Whole Premium,
shall immediately become due and payable, without presentment, demand, protest
or notice, all of which are hereby waived.
(c) If any Indenture Event of Default not described in the preceding
paragraph (b) shall have occurred and be continuing, then and in every such
case, the Indenture Trustee may on its own accord or at the direction of
Holders of not less than 25% in aggregate principal amount of Outstanding
Certificates, at any time, by written notice to the Owner Trustee, the Owner
Participant and the Lessee, declare the principal of all the Certificates to
be due and payable, whereupon the unpaid principal amount of all Outstanding
Certificates, together with accrued interest thereon and all other amounts due
thereunder, but without Make-Whole Premium, shall immediately become due and
payable without presentment, demand, protest or other notice, all of which are
hereby waived. At any time after such declaration and prior to the sale or
disposition of the Trust Indenture Estate, however, the Holders of not less
than 50% in aggregate principal amount of Outstanding Certificates, by notice
to the Indenture Trustee, the Owner Trustee and the Lessee, may rescind such
declaration, whether made by the Indenture Trustee on its own accord or as
directed, if (x) there has been paid or deposited with the Indenture Trustee a
sum sufficient to pay all overdue installments of interest on all Certificates
(together, to the extent permitted by law, with interest on such overdue
installments of interest), the principal on any Certificates that has become
due otherwise than by such declaration of acceleration, all sums paid or
advanced by the Indenture Trustee hereunder and the reasonable compensation,
expenses, disbursements and advances of the Indenture Trustee, its agents and
counsel, or (y) all Indenture Events of Default (other than the nonpayment of
principal that has become due solely because of such acceleration) have been
either cured or waived as provided in Section 7.11 hereof. No such rescission
shall affect any subsequent default or impair any right consequent thereon.
(d) Each Holder shall be entitled at any sale to credit against any
purchase price bid at such sale by such Holder all or any part of the unpaid
obligations owing to such Holder secured by the Lien of this Indenture (but
only to the extent that an amount equal to such purchase price would have been
paid to such Holder pursuant to Article V hereof if such purchase price were
paid in cash and the foregoing provisions of this subsection (d) were not
given effect).
Section 7.03. Return of Aircraft, etc. Subject to Section 7.02
hereof: (a) If an Indenture Event of Default shall have occurred and be
continuing, at the request of the Indenture Trustee, the Owner Trustee shall
promptly execute and deliver to the Indenture Trustee such documents as the
Indenture Trustee may deem necessary or advisable to enable the Indenture
Trustee or an agent or representative designated by the Indenture Trustee, at
such time or times and place or places as the Indenture Trustee may specify,
to obtain possession of all or any part of the Trust Indenture Estate to which
the Indenture Trustee shall at the time be entitled under this Indenture.
Subject to the foregoing, if the Owner Trustee shall for any reason fail to
execute and deliver such documents after such request by the Indenture
Trustee, the Indenture Trustee may pursue all or part of such Trust Indenture
Estate wherever it may be found and enter any of the premises of the Lessee or
the Owner Trustee wherever such Trust Indenture Estate may be or be supposed
to be and search for such Trust Indenture Estate and take possession of and
remove such Trust Indenture Estate. All expenses of pursuing, searching for
and taking such Trust Indenture Estate shall, until paid, be secured by the
Lien of this Indenture.
(b) Upon every such taking of possession, the Indenture Trustee may,
from time to time, at the expense of the Trust Indenture Estate, make all such
expenditures for maintenance, insurance and repairs to and of such Trust
Indenture Estate, as the Indenture Trustee may reasonably deem proper. In
each case subject to Section 7.02 hereof, the Indenture Trustee shall have the
right to maintain, use, operate, store, lease, control or manage the Trust
Indenture Estate and to carry on the business and to exercise all rights and
powers of the Owner Participant and the Owner Trustee relating to the Trust
Indenture Estate, as the Indenture Trustee may reasonably deem best, including
the right to enter into any and all such agreements with respect to the
maintenance, insurance, use, operation, storage, leasing, control, management
or disposition of all or any part of the Trust Indenture Estate as the
Indenture Trustee may determine. Further, the Indenture Trustee shall be
entitled to collect and receive directly all tolls, rents (including Rent),
revenues, issues, income, products and profits of the Trust Indenture Estate
other than Excepted Payments, without prejudice, however, to the right of the
Indenture Trustee under any provision of this Indenture to collect and receive
all cash held by, or required to be deposited with, the Indenture Trustee
under this Indenture. Such tolls, rents (including Rent), revenues, issues,
income, products and profits shall be applied to pay the expenses of the use,
operation, storage, leasing, control, management, or disposition of the Trust
Indenture Estate, and of all maintenance and repairs, and to make all payments
which the Indenture Trustee may be required or may reasonably elect to make
for any taxes, assessments, insurance or other proper charges upon the Trust
Indenture Estate (including the employment of engineers and accountants to
examine, inspect and make reports upon the properties and books and records of
the Owner Trustee and the Lessee), and all other payments which the Indenture
Trustee may be required or authorized to make under any provision of this
Indenture, as well as just and reasonable compensation for the services of the
Indenture Trustee and of all persons properly engaged and employed for such
purposes by the Indenture Trustee; provided, that any excess amounts shall be
promptly distributed in accordance with Section 5.03 hereof.
(c) Subject to Section 7.02 hereof, if an Indenture Event of
Default shall have occurred and be continuing and the Indenture Trustee shall
be entitled to exercise remedies hereunder, and subject to Article VIII
hereof, the Indenture Trustee, either with or without taking possession, and
either before or after taking possession, and without instituting any legal
proceedings whatsoever, may sell, assign, transfer and deliver the whole or,
from time to time, to the extent permitted by law, any part of the Trust
Indenture Estate, or any part thereof, or interest therein, at any private
sale or public auction to the highest bidder, with or without demand,
advertisement or notice, except that in respect of any private sale 30 days
prior written notice by registered mail to the Owner Trustee and the Owner
Participant will be provided, for cash or, with the consent of the Owner
Trustee and the Owner Participant, credit or for other property, for immediate
or future delivery, and for such price or prices and on such terms as the
Indenture Trustee in exercising reasonable commercial discretion may
determine; provided, that any such action shall be at the time lawful and that
all mandatory legal requirements shall be complied with. Any notice required
pursuant to the terms hereof in the case of a public sale, shall state the
time and place fixed for such sale. Any such public sale shall be held at
such time or times within ordinary business hours as the Indenture Trustee
shall fix in the notice of such sale. At any such sale, the Trust Indenture
Estate may be sold in one lot as an entirety or in separate lots. The
Indenture Trustee shall not be obligated to make any sale pursuant to such
notice. The Indenture Trustee may, without notice or publication, adjourn any
public or private sale or cause the same to be adjourned from time to time by
announcement at the time and place fixed for such sale, and any such sale may
be made at any time or place to which the same may be so adjourned without
further notice or publication. The Indenture Trustee may exercise such right
of sale without possession or production of the Certificates or proof of
ownership thereof, and as representative of the Holders may exercise such
right without notice to the Holders or without including the Holders as
parties to any suit or proceedings relating to the foreclosure of any part of
the Trust Indenture Estate. The Owner Trustee shall execute any and all such
bills of sale, assignments and other documents, and perform and do all other
acts and things requested by the Indenture Trustee in order to permit
consummation of any sale of the Trust Indenture Estate in accordance with this
Section 7.03(c) and to effectuate the transfer or conveyance referred to in
the first sentence of this Section 7.03(c). Notwithstanding any other
provision of this Indenture, the Indenture Trustee shall not sell the Trust
Indenture Estate or any part thereof unless the Certificates shall have been
accelerated.
(d) To the extent permitted by applicable law, and subject to
Section 7.02 hereof, the Indenture Trustee or any Holder may be a purchaser of
the Trust Indenture Estate or any part thereof or any interest therein at any
sale thereof, whether pursuant to foreclosure or power of sale or otherwise.
The Indenture Trustee may apply against the purchase price therefor the amount
then due hereunder or under any of the Certificates secured hereby and any
Holder may apply against the purchase price therefor the amount then due to it
hereunder, under any other Indenture Document or under the Certificates held
by such Holder to the extent of such portion of the purchase price as it would
have received had it been entitled to share any distribution thereof. The
Indenture Trustee or any Holder or nominee thereof shall, upon any such
purchase, acquire good title to the property so purchased, free of the Lien of
this Indenture and, to the extent permitted by applicable law, free of all
rights of redemption in the Owner Trustee or the Owner Participant in respect
of the property so purchased.
(e) The Indenture Trustee shall, as a matter of right, be entitled to
the appointment of a receiver (who may be the Indenture Trustee or any
successor or nominee) for all or any part of the Trust Indenture Estate,
whether such receivership be incidental to a proposed sale of the Trust
Indenture Estate or the taking of possession thereof or otherwise, and the
Owner Trustee hereby consents to the appointment of such receiver and will not
oppose any such appointment. Any receiver appointed for all or any part of
the Trust Indenture Estate shall be entitled to exercise all of the rights and
powers of the Indenture Trustee with respect to the Trust Indenture Estate.
Section 7.04. Indenture Trustee May Prove Debt. If the Owner
Trustee shall fail to pay any amount payable hereunder or under the
Certificates, the Indenture Trustee, in its own name and as trustee of an
express trust, shall be entitled and empowered to institute any action or
proceedings at law or in equity for the collection of the sums so due and
unpaid, and may prosecute any such action or proceedings to judgment or final
decree, and may enforce any such judgment or final decree against the Owner
Trustee and collect in the manner provided by law out of the property of the
Owner Trustee wherever situated, the moneys adjudged or decreed to be payable;
provided, that any sale of any portion of the Trust Indenture Estate shall be
done in accordance with Sections 7.02 and 7.03(c) hereof.
In case there shall be pending proceedings relative to the Owner
Trustee under the Bankruptcy Code or any other applicable Federal or state
bankruptcy, insolvency or other similar law, or in case a receiver, assignee
or trustee in bankruptcy or reorganization, liquidator, sequestrator or
similar official shall have been appointed for or taken possession of the
Owner Trustee or its property, or in case of any other comparable judicial
proceedings relative to the Owner Trustee, or to the creditors or property of
the Owner Trustee, the Indenture Trustee, irrespective of whether the
principal of the Certificates shall then be due and payable as therein or
herein expressed or by declaration or otherwise and irrespective of whether
the Indenture Trustee shall have made any demand pursuant to the provisions of
this Section, shall be entitled and empowered, by intervention in such
proceedings or otherwise:
(a) to file and prove a claim or claims for the whole amount of
principal, interest and other amounts owing and unpaid in respect of the
Certificates or hereunder, and to file such other papers or documents as
may be necessary or advisable in order to have the claims of the Indenture
Trustee (including any claim for reasonable compensation to the Indenture
Trustee and each predecessor Indenture Trustee, and their respective
agents, attorneys and counsel, and for reimbursement of the Indenture
Trustee and each predecessor Indenture Trustee, except as a result of
negligence or bad faith) and of the Holders allowed in any judicial
proceedings relative to the Owner Trustee or to the creditors or property of
the Owner Trustee,
(b) unless prohibited by applicable law and regulations, to vote on
behalf of the Holders in any election of a trustee or a standby trustee in
arrangement, reorganization, liquidation or other bankruptcy or insolvency
proceedings or person performing similar functions in comparable
proceedings, and
(c) to collect and receive any moneys or other property payable or
deliverable on any such claims, and to distribute all amounts received with
respect to the claims of the Holders and of the Indenture Trustee on their
behalf;
and any trustee, receiver, or liquidator, custodian or other similar official
is hereby authorized by each of the Holders to make payments to the Indenture
Trustee, and, in the event that the Indenture Trustee shall consent to the
making of payments directly to the Holders, to pay to the Indenture Trustee
such amounts as shall be sufficient to cover reasonable compensation to the
Indenture Trustee, each predecessor Indenture Trustee and their respective
agents, attorneys and counsel, and all other expenses and liabilities
incurred, and all advances made, by the Indenture Trustee and each predecessor
Indenture Trustee except as a result of negligence or willful misconduct.
Nothing contained herein shall be deemed to authorize the Indenture
Trustee to authorize or consent to or vote for or accept or adopt on behalf of
any Holder any plan of reorganization, arrangement, adjustment or composition
affecting the Certificates or the rights of any Holder thereof, or to
authorize the Indenture Trustee to vote in respect of the claim of any Holder
in any such proceeding except, as aforesaid, to vote for the election of a
trustee in bankruptcy or similar person.
All rights of action and rights to assert claims under this
Indenture, or under any of the Certificates, may be enforced by the Indenture
Trustee without the possession of such Certificates on any trial or other
proceedings instituted by the Indenture Trustee shall be brought in its own
name as trustee of an express trust, and any recovery of judgment, subject to
the payment of the expenses, disbursements and compensation of the Indenture
Trustee, each predecessor Indenture Trustee and their respective agents and
attorneys, shall be for the ratable benefit of the Holders, as provided herein.
In any proceedings brought by the Indenture Trustee (and also any
proceedings involving the interpretation of any provision of this Indenture to
which the Indenture Trustee shall be a party) the Indenture Trustee shall be
held to represent all the Holders of the Certificates, and it shall not be
necessary to make any Holders parties to such proceedings.
Section 7.05. Remedies Cumulative. Each and every right, power and
remedy given to the Indenture Trustee in this Indenture shall be cumulative
and shall be in addition to every other right, power and remedy specifically
given herein or now or hereafter existing at law, in equity or by statute, and
each and every right, power and remedy whether specifically given herein or
otherwise existing may be exercised from time to time and as often and in such
order as may be deemed expedient by the Indenture Trustee or the Holders, and
the exercise or the beginning of the exercise of any power or remedy shall not
be construed to be a waiver of the right to exercise at the same time or later
any other right, power or remedy. No delay or omission by the Indenture
Trustee or of any Holder in the exercise of any right, remedy or power or in
the pursuance of any remedy shall impair any such right, power or remedy or be
construed to be a waiver of any default on the part of the Owner Trustee or
the Lessee or to be an acquiescence in any such default.
Section 7.06. Suits for Enforcement. If an Indenture Event of
Default has occurred, has not been waived and is continuing, the Indenture
Trustee may in its discretion and subject to its rights of appropriate
indemnification under Sections 7.08 and 9.03 and Article XI hereof proceed to
protect and enforce its rights and rights of the Holders by such appropriate
judicial proceedings as the Indenture Trustee shall deem most effectual to
protect and enforce any of such rights, either at law or in equity or in
bankruptcy or otherwise, whether for the specific enforcement of any covenant
or agreement contained in this Indenture or in aid of the exercise of any
power granted in this Indenture or to enforce any other legal or equitable
right vested in the Indenture Trustee or the Holders by this Indenture or by
law; provided, that any sale of any portion of the Trust Indenture Estate
shall be done in accordance with Sections 7.02 and 7.03(c) hereof.
Section 7.07. Discontinuance of Proceedings. In case the Indenture
Trustee or any Holder shall have instituted any proceeding to enforce any
right, power or remedy under this Indenture by foreclosure, entry or
otherwise, and such proceeding shall have been discontinued or abandoned for
any reason or shall have been determined adversely to the Indenture Trustee or
such Holder, then the Owner Trustee, the Indenture Trustee, the Owner
Participant, the Holders and the Lessee shall, subject to any binding
determination in such proceeding, be restored to their former positions and
rights under this Indenture with respect to the Trust Indenture Estate, and all
rights, remedies and powers of the Indenture Trustee and the Holders shall
continue as if no such proceeding had been instituted.
Section 7.08. Limitations on Suits by Holders. No Holder of any
Certificate shall have any right by virtue or by availing of any provision of
this Indenture to institute any action or proceeding at law or in equity or in
bankruptcy or otherwise upon or under or with respect to this Indenture, or
for the appointment of a trustee, receiver, liquidator, custodian or other
similar official or for any other remedy hereunder, unless such Holder
previously shall have given to the Indenture Trustee written notice that an
Indenture Event of Default shall then have occurred and be continuing, as
hereinbefore provided, and the Holders of not less than 25% in aggregate
principal amount of Outstanding Certificates shall have made written request
upon the Indenture Trustee to institute such action or proceedings in its own
name as trustee hereunder and shall have offered to the Indenture Trustee such
reasonable indemnity as it may require against the costs, expenses and
liabilities to be incurred therein or thereby and the Indenture Trustee for 60
days after its receipt of such notice, request and offer of indemnity shall
have failed to institute any such action or proceedings and no direction
inconsistent with such written request shall have been given to the Indenture
Trustee pursuant to Section 7.10 hereof; it being understood and intended, and
being expressly covenanted by the Holder of each Certificate with every other
Holder of each other Certificate and the Indenture Trustee, that no one or
more Holders shall have any right in any manner whatever to affect, disturb or
prejudice the rights of any other Holder or the Lien of this Indenture or any
part of the Trust Indenture Estate or to obtain or seek to obtain priority
over or preference to any other such Holder or to enforce any right under this
Indenture, except in the manner provided herein and for the equal, ratable and
common benefit of all Holders. For the protection and enforcement of the
provisions of this Section, each and every Holder and the Indenture Trustee
shall be entitled to such relief as can be given either at law or in equity.
Section 7.09. Unconditional Right of Holders to Receive Principal,
Interest and Make-Whole Premium, and to Institute Certain Suits.
Notwithstanding any other provision in this Indenture and any provision of any
Certificate, the right of any Holder to receive payment of the principal of
and interest and Make-Whole Premium, if any, on such Certificate on or after
the respective due dates and in the manner expressed in such Certificate, or,
subject to Section 7.08 hereof, to institute suit for the enforcement of any
such payment on or after such respective dates as provided herein, shall not
be impaired or affected without the consent of such Holder.
Section 7.10. Control by Holders. The Majority in Interest of
Certificate Holders shall have the right to direct the Indenture Trustee as to
the time, method, and place of conducting any proceeding for any remedy
available to the Indenture Trustee, or exercising any trust or power conferred
on the Indenture Trustee by this Indenture; provided that such direction shall
not be otherwise than in accordance with law and the provisions of this
Indenture and the Indenture Trustee shall have received, to the extent
provided in Sections 7.08 and 9.03 and Article XI hereof, such reasonable
indemnification as it may require against the costs, expenses and liabilities
to be incurred by the Indenture Trustee; and provided further that (subject to
the provisions of Section 9.02 hereof) the Indenture Trustee shall have the
right to decline to follow any such direction if the Indenture Trustee, being
advised by counsel, shall determine that the action or proceeding so directed
may not lawfully be taken or if the Indenture Trustee in good faith by its
board of directors, the executive committee, or a trust committee of directors
or Responsible Officers of the Indenture Trustee shall determine that the
action or proceedings so directed would involve the Indenture Trustee in
personal liability or if the Indenture Trustee in good faith shall so
determine that the actions or forebearances specified in or pursuant to such
direction shall be unduly prejudicial to the interests of Holders not joining
in the giving of said direction, it being understood that (subject to Section
9.02 hereof) the Indenture Trustee shall have no duty to ascertain whether or
not such actions or forebearances are unduly prejudicial to such Holders.
Nothing in this Indenture shall impair the right of the Indenture
Trustee in its discretion to take any action deemed proper by the Indenture
Trustee and which is not inconsistent with the direction by the Majority in
Interest of Certificate Holders.
Section 7.11. Waiver of Past Indenture Default. Upon written
instructions from the Majority in Interest of Certificate Holders, the
Indenture Trustee shall waive any past Indenture Default and its consequences
and upon any such waiver such Indenture Default shall cease to exist and any
Indenture Event of Default arising therefrom shall be deemed to have been
cured for every purpose of this Indenture, but no such waiver shall extend to
any subsequent or other Indenture Default or impair any right consequent
thereon; provided, however, that in the absence of written instructions from
all Holders and each Liquidity Provider, the Indenture Trustee shall not waive
any Indenture Default (a) in the payment of the principal of or Make-Whole
Premium, if any, or interest on, or other amounts due under, any Certificate
then Outstanding, or (b) in respect of a covenant or provision of this
Indenture which, under Article XIII hereof, cannot be modified or amended
without the consent of each Holder.
Section 7.12. Notice of Indenture Default. The Indenture Trustee
shall transmit to the Owner Trustee, the Holders and to the Owner Participant
notice of any Indenture Defaults actually known to a Responsible Officer of
the Indenture Trustee, such notice to be transmitted by mail to the Holders
within 90 days, and to the Owner Trustee and the Owner Participant promptly
after the occurrence thereof, unless such Indenture Default shall have been
cured before the giving of such notice; provided that except in the case of a
default in the payment of the principal of or interest on any Certificate,
under no circumstances shall the Indenture Trustee give such notice to the
Holders until the expiration of a period of 60 days from the occurrence of such
Indenture Default; and provided further that, except in the case of default in
the payment of the principal of or interest on or any other amount due under
any of the Certificates, the Indenture Trustee shall be protected in
withholding such notice to the Holders if and so long as the board of
directors, the executive committee, or a trust committee of directors or
trustees and/or Responsible Officers of the Indenture Trustee in good faith
determines that the withholding of such notice is in the interests of the
Holders.
ARTICLE VIII
RIGHTS OF THE OWNER TRUSTEE
AND THE OWNER PARTICIPANT
Section 8.01. Certain Rights of Owner Trustee and Owner Participant.
(a) Subject to Section 13.01 hereof and the provisions of paragraph (a)
immediately following the Granting Clause hereof, without the consent of a
Majority in Interest of Certificate Holders, the respective parties to the
Indenture Documents may not modify, amend or supplement any of said
agreements, or give any consent, waiver, authorization or approval thereunder,
for the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions thereof or of modifying in any manner the
rights of the respective parties thereunder; provided, however, that the
actions specified in subsection (b) of this Section 8.01 may be taken without
the consent of the Indenture Trustee or any Holder.
(b) Subject to the provisions of subsection (c) of this Section
8.01, the Lessor and the respective parties to the Indenture Documents, at any
time and from time to time, without the consent of the Indenture Trustee or of
any Holder, may:
(1) so long as no Indenture Event of Default shall have occurred and
be continuing, modify, amend or supplement the Lease, or give any waiver
with respect thereto, except that without compliance with subsection (a) of
this Section 8.01 the parties to the Lease shall not modify, amend or
supplement, or give any waiver for the purpose of adding any provisions to
or changing in any manner or eliminating any of the provisions thereof or
of modifying in any manner the rights of the respective parties thereunder,
with respect to the following provisions of the Lease as in effect on the
effective date hereof: Article 2 (except in respect of the Term, if the
result thereof would not be to shorten the Term of the Lease to a period
shorter than the period ending with the Maturity of any Certificate),
Section 3.03 (except to the extent such Section relates to amounts payable
(whether directly or pursuant to this Indenture) to Persons other than
Holders, each Liquidity Provider, the Subordination Agent and the Indenture
Trustee in its individual capacity), Section 3.05, Section 3.06 (except
insofar as it relates to the address or account information of the Owner
Trustee or the Indenture Trustee) (other than as such Sections 3.03, 3.05
and 3.06 may be amended pursuant to Section 3.04 of the Lease as in effect
on the effective date hereof), Section 5.01, Article 6, Article 10 (except
that further restrictions may be imposed on the Lessee), Article 11 (except
that additional requirements may be imposed on the Lessee), Article 13
(except for Section 13.05 and except that additional insurance requirements
may be imposed on the Lessee), Article 14 (except in order to increase the
Lessee's liabilities or enhance the Lessor's rights thereunder), Article 15
(except in the case of an assignment by the Lessor in circumstances where
the Aircraft shall remain registrable under the Federal Aviation Act),
Section 16.01 (except to impose additional or more stringent Events of
Default), Article 17 (except to impose additional remedies), Section 19.01
(except to impose additional requirements on the Lessee), Section 20.01,
Article 22, Section 23.01, Section 26.03 and any definition of terms used
in the Lease, to the extent that any modification of such definition would
result in a modification of the Lease not permitted pursuant to this
subsection (b); provided that the parties to the Lease may take any such
action without the consent of the Indenture Trustee or any Holder to the
extent such action relates to the payment of amounts constituting, or the
Owner Trustee's, the Owner Participant's or the Lessee's rights or
obligations with respect to, Excepted Payments (other than the place, time
and manner of payment of any portion of Basic Rent constituting an Excepted
Payment);
(2) modify, amend or supplement the Trust Agreement and any other
Indenture Document (other than the Lease and the Participation Agreement),
or give any consent, waiver, authorization or approval with respect
thereto, in each case only to the extent any such action shall not
materially adversely impact the interests of the Holders;
(3) modify, amend or supplement the Participation Agreement, or give
any consent, waiver, authorization or approval with respect thereto, except
that without compliance with subsection (a) of this Section 8.01 the
parties to the Participation Agreement shall not modify, amend or
supplement, or give any consent, waiver, authorization or approval for the
purpose of adding provisions to or changing in any manner or eliminating
any of the provisions thereof or of modifying in any manner the rights of
the respective parties thereunder, with respect to the following provisions
of the Participation Agreement as in effect on the effective date hereof:
Article 6 and Section 10.01(b) (insofar as such Article 6 and Section
10.01(b) relate to the Indenture Trustee, the Pass Through Trustee and the
Holders), Article 7 and Sections 3.05, 15.01, 17.02 and 17.11 and Articles
8 and 9 (insofar as such Articles relate to the Indenture Trustee; it being
understood that only the Indenture Trustee's consent in respect thereof
need be obtained) and any definition of terms used in the Participation
Agreement, to the extent that any modification of such definition would
result in a modification of the Participation Agreement not permitted
pursuant to this subsection (b); and
(4) modify, amend or supplement any of said agreements in order to
cure any ambiguity, to correct or supplement any provisions thereof which
may be defective or inconsistent with any other provision thereof or of any
provision of this Indenture, or to make any other provision with respect to
matters or questions arising thereunder or under this Indenture which shall
not be inconsistent with the provisions of this Indenture, provided the
making of any such other provision shall not adversely affect the interests
of the Holders.
(c) No modification, amendment, supplement, consent, waiver,
authorization or approval with respect to the Lease or the Participation
Agreement, whether effected pursuant to subsection (a) or pursuant to
subsection (b) of this Section 8.01 and anything in such subsections or
elsewhere in this Indenture to the contrary notwithstanding, shall, without
the consent of the Holder of each Outstanding Certificate affected thereby,
and each Liquidity Provider,
(1) modify, amend or supplement the Lease in such a way as to extend
the time of payment of Basic Rent or Stipulated Loss Value or Supplemental
Rent payable to the Holders or any Liquidity Provider or any other amounts
payable for the account of the Holders or any Liquidity Provider (subject
in any event to Section 3.05 of the Lease) upon the occurrence of an Event
of Loss or Termination Value and any other amounts payable for the account
of the Holders (subject in any event to Section 3.05 of the Lease) upon
termination of the Lease with respect to the Aircraft payable under, or as
provided in, the Lease as in effect on the effective date hereof, or reduce
the amount of any installment of Basic Rent or Supplemental Rent so that
the same is less than the payment of principal of, and interest on the
Certificates and Make-Whole Premium, if any, and amounts due to each
Liquidity Provider, as the case may be, to be made from such installment of
Basic Rent or Supplemental Rent, or reduce the aggregate amount of
Stipulated Loss Value, or any other amounts payable under, or as provided
in, the Lease as in effect on the effective date hereof upon the occurrence
of an Event of Loss so that the same is less than the accrued interest on
and the principal as of the Loss Payment Date, of the Certificates at the
time Outstanding or reduce the amount of Termination Value and any other
amounts payable under, or as provided in, the Lease as in effect on the
effective date hereof upon termination of the Lease with respect to the
Aircraft so that the same is less than the accrued interest on and
principal as of the Lease Termination Date and Make-Whole Premium, if any,
of Certificates at the time Outstanding, or
(2) modify, amend or supplement the Lease in such a way as to, or
consent to any assignment of the Lease or give any consent, waiver,
authorization or approval which would, release the Lessee from its absolute
and unconditional obligations in respect of payment of Basic Rent or
Supplemental Rent, or Stipulated Loss Value and any other amounts payable
for the account of the Holders (subject in any event to Section 3.05 of the
Lease) upon the occurrence of an Event of Loss, or Termination Value and
any other amounts payable for the account of the Holders (subject in any
event to Section 3.05 of the Lease) with respect to the Aircraft, payable
under, or as provided in, the Lease as in effect on the effective date
hereof, except for any such assignment pursuant to Section 2.12 hereof, and
except as provided in the Lease as in effect on the effective date hereof.
(d) At all times so long as this Indenture is in effect, the consent
of the Owner Trustee (at the direction of the Owner Participant) shall be
required in order (i) to amend, modify or supplement the Lease or any other
Operative Document to which the Owner Trustee is a party or to waive
compliance by the Lessee with any of its obligations thereunder and (ii) to
grant any consent requested under the Lease.
Notwithstanding the foregoing, but subject always to the provision of Section
15.05 hereof, the Indenture Trustee shall at all times have the right, to the
exclusion of the Owner Trustee and the Owner Participant, to (A) declare the
Lease to be in default under Article 17 (other than with respect to Excepted
Payments) thereof and (B) subject only to the provisions of this Indenture,
exercise the remedies set forth in such Article 17 of the Lease (other than in
connection with Excepted Payments) and in Article 7 hereof.
Nothing in this Indenture shall be deemed to prohibit the Owner
Participant or the Owner Trustee from making demand on the Lessee for, or from
commencing an action at law to obtain the payment of, or from receiving
payment of, any Excepted Payment; provided, however, that if the Owner Trustee
is proceeding under the Lease, the Owner Trustee shall proceed pursuant to
Section 17.01(a)(v), and only Section 17.01(a)(v), of the Lease.
Section 8.02. Owner Participant's Right to Elect to Prepay or
Purchase the Certificates. (a) If (i) an Event of Default shall have occurred
and be continuing for more than 180 days or the Certificates shall have become
due and payable pursuant to Section 7.02(b) or (c) hereof or (ii) an Event of
Default shall have occurred and be continuing for not more than 180 days and
the Certificates shall not have become due and payable pursuant to Section
7.02(b) or (c) hereof, the Owner Participant (or the Owner Trustee on behalf
of the Owner Participant) may, but shall be under no obligation to, do either
of the following:
(1) direct the Owner Trustee to cause the prepayment of all, but not
less than all, of the Certificates then Outstanding by notifying the
Indenture Trustee of such election, which notice in order to be effective
shall state that it is irrevocable (except as provided below) and shall
designate a Prepayment Date which shall be a Business Day which shall be
not less than 15 days after the date of such notice on which the Owner
Trustee shall, in the manner provided for in Section 6.04 hereof, deposit
the sum of amounts contemplated by paragraph "first" under Section 5.03 and
the aggregate Prepayment Price (determined in accordance with Section
6.02(b) hereof) of all such Certificates with the Indenture Trustee. If
such payment by the Owner Trustee to the Indenture Trustee is made, the
Certificates shall cease to accrue interest from and after the Prepayment
Date, and after distribution of such payment to the Holders, the Indenture
Trustee shall release the Trust Indenture Estate from the Lien of this
Indenture; or
(2) purchase all, but not less than all, of the Outstanding
Certificates by notifying the Indenture Trustee of such election, which
notice in order to be effective shall state that it is irrevocable (except
as provided below) and shall designate a date which shall be a Business Day
which shall be not less than 15 days after the date of such notice on which
the Owner Trustee shall pay to the Indenture Trustee an amount equal to the
aggregate unpaid principal amount of all Outstanding Certificates, together
with accrued interest on such amount to the date of purchase, the aggregate
amount of any Make-Whole Premium applicable to each Outstanding Certificate
(if such purchase occurs prior to the Premium Termination Date for such
Outstanding Certificate) in the case of a purchase pursuant to clause
(a)(ii) above (but not if such purchase is pursuant to clause (a)(i)
above), plus all other sums due any Holder or the Indenture Trustee
hereunder or under the Participation Agreement or the Lease. Upon receipt
by the Indenture Trustee of such amount, each Holder will be deemed,
whether or not Certificates shall have been delivered to the Indenture
Trustee on such date, to have thereupon sold, assigned, transferred and
conveyed (and shall promptly take such actions as the Owner Participant
shall reasonably request to evidence such sale, assignment, transfer and
conveyance) to the Owner Participant (without recourse or warranty of any
kind except for its own acts), all of the right, title and interest of such
Holder in and to the Trust Indenture Estate and this Indenture and all
Certificates held by such Holder and the former Holders shall not be
entitled to receive any interest on the principal amount of such
Certificates after the purchase date, and the Owner Participant shall be
deemed to have assumed (and shall promptly take such actions as any Holder
shall reasonably request to evidence such assumption) all of such Holder's
obligations under the Participation Agreement and this Indenture arising
subsequent to such sale. If the Owner Trustee shall so request, such
Holder will comply with all the provisions of Section 2.06 of this
Indenture to enable new Certificates to be issued to the Owner Participant
in such authorized denominations as the Owner Participant shall request.
All charges and expenses required pursuant to Section 2.06 hereof in
connection with the issuance of any such new Certificates shall be borne by
the Owner Participant.
(b) From and after the deposit by the Owner Trustee of the applicable
Prepayment Price or purchase price with the Indenture Trustee pursuant to
Section 8.02(a) hereof, the Owner Trustee shall be entitled to exercise all
remedies of the Indenture Trustee under Article VII hereof as well as of the
Lessor under the Lease.
(c) Any election to prepay or purchase the Certificates under this
Section 8.02 shall be irrevocable, provided that if on the specified date for
prepayment or purchase, the Event of Default giving rise to such election
shall no longer be continuing under the Lease such election shall be deemed to
be automatically withdrawn.
Section 8.03. Certain Rights of Owner Participant. (a) If (A)
there shall occur an Event of Default under the Lease as a result of the
Lessee's failure to make any payment of an installment of Basic Rent, and (B)
the Owner Trustee shall have paid or caused to be paid on or prior to the date
which is 15 Business Days after the Owner Participant's receipt of written
notice of such Event of Default all principal and interest on the Certificates
then due (as well as any interest on overdue principal and (to the extent
permitted by applicable law) interest), but not including any principal or
interest becoming due on account of such Event of Default, then the failure of
the Lessee to make the payment of such installment of Basic Rent or of
interest on account of such installment's being overdue shall not constitute
or result in an Indenture Event of Default under this Indenture and any
declaration based solely on the same shall be deemed to be automatically
rescinded. Nothing contained in the preceding sentence shall be deemed to
entitle the Owner Trustee to exercise any rights and powers or pursue any
remedies pursuant to Article 17 of the Lease or otherwise except as set forth
in this Indenture, and except that the Owner Trustee or the Owner Participant
may attempt to recover any amount paid by it or them under this Indenture by
demanding of the Lessee payment of such amount, or by commencing an action at
law or equity against the Lessee for the payment of such amount or taking
appropriate action in a pending action at law against the Lessee pursuant to
Section 17.01(a)(v), but only said Section 17.01(a)(v), of the Lease. Upon
curing any such Event of Default pursuant to this Section 8.03, the Owner
Trustee or the Owner Participant, as the case may be, shall be subrogated on
an unsecured basis to all the rights of the Indenture Trustee under the Lease
in respect of the payment giving rise to such Event of Default, and any right
to any interest in respect of the same, and shall be entitled to any payment
of Basic Rent (or interest thereon) actually made by the Lessee in respect of
such cured payment upon receipt by the Indenture Trustee; provided that no such
amount shall be paid to the Owner Trustee or the Owner Participant until all
amounts then due and payable to each Certificate Holder hereunder and
thereunder shall have been paid in full and no Indenture Event of Default
shall have occurred and be continuing. Notwithstanding anything in this
Indenture or the Lease to the contrary, the Owner Participant and the Owner
Trustee collectively, shall not be entitled to cure more than six (6) Events
of Default (no more than three (3) of which may be consecutive) occasioned by
defaults in the payment of Basic Rent.
(b) If (A) there shall occur an Event of Default under the Lease for
any reason other than the Lessee's failure to make any payment of an
installment of Basic Rent and (B) the Owner Trustee shall have taken or caused
to be taken such action necessary to cure and shall have cured such Event of
Default prior to the date which is 15 Business Days after the Owner
Participant's receipt of the written notice of such Event of Default, then
the failure of the Lessee to perform such covenant, condition or agreement,
the observance or performance of which was accomplished by the Owner Trustee
hereunder shall not constitute or result in an Indenture Event of Default under
this Indenture and any declaration based solely on the same shall be deemed to
be automatically rescinded. Nothing contained in the preceding sentence shall
be deemed to entitle the Owner Trustee or the Owner Participant to exercise
any rights and powers or pursue any remedies pursuant to Article 17 of the
Lease or otherwise except as set forth in this Indenture, and except that the
Owner Trustee or the Owner Participant may attempt to recover any amount paid
by it or them in effecting such cure by demanding of the Lessee payment of
such amount, plus any interest due, or by commencing an action at law or in
equity against the Lessee for the payment of such amount or taking appropriate
action in a pending action at law or in equity against the Lessee pursuant to
Section 17.01(a)(v), but only said Section 17.01(a)(v), of the Lease. Upon
curing any such Event of Default pursuant to this Section 8.03(b), the Owner
Trustee or the Owner Participant, as the case may be, shall be subrogated to
all the rights of the Indenture Trustee under the Lease in respect of the
payment, agreement or covenant giving rise to such Event of Default, and any
right to any interest in respect of the same, and shall be entitled to any
payment or other performance upon receipt by the Indenture Trustee; provided
that no such amount shall be paid to the Owner Trustee or the Owner
Participant until all amounts then due and payable to each Certificate Holder
hereunder and thereunder shall have been paid in full and no Indenture Event
of Default shall have occurred and be continuing.
ARTICLE IX
CONCERNING THE INDENTURE TRUSTEE
Section 9.01. Acceptance of Trusts. The Indenture Trustee in its
individual capacity hereby accepts the trusts imposed upon it by this
Indenture, and covenants and agrees to perform the same as expressed herein
and agrees to receive and disburse all moneys constituting part of the Trust
Indenture Estate in accordance with the terms hereof.
Section 9.02. Duties and Responsibilities of the Indenture Trustee;
During an Indenture Event of Default; Prior to an Indenture Event of Default.
(a) The Indenture Trustee, prior to the occurrence of an Indenture Event of
Default and after the curing or waiving of all Indenture Events of Default
which may have occurred, undertakes to perform such duties and only such
duties as are specifically set forth in this Indenture. So long as an
Indenture Event of Default has occurred and has not been cured or waived, the
Indenture Trustee shall exercise such of the rights and powers vested in it by
this Indenture, and use the same degree of care and skill in their exercise,
as a prudent man would exercise or use under the circumstances in the conduct
of his own affairs. No provision of this Indenture shall be construed to
relieve the Indenture Trustee from liability for its own negligent action, its
own negligent failure to act or its own willful misconduct, except that:
(i) prior to the occurrence of an Indenture Event of Default and
after the curing or waiving of all Indenture Events of Default which may have
occurred:
(x) the duties and obligations of the Indenture Trustee shall be
determined solely by the express provisions of this Indenture, and the
Indenture Trustee shall not be liable except for the performance of such
duties and obligations as are specifically set forth in this Indenture, and no
implied covenants or obligations shall be read in to this Indenture against
the Indenture Trustee; and
(y) in the absence of bad faith on the part of the Indenture
Trustee, the Indenture Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed therein, upon any
statements, certificates or opinions furnished to the Indenture Trustee and
conforming to the requirements of this Indenture; but in the case of any such
statements, certificate or opinions which by any provision hereof are
specifically required to be furnished to the Indenture Trustee, the Indenture
Trustee shall be under a duty to examine the same to determine whether or not
they conform to the requirements of this Indenture;
(ii) the Indenture Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer or Responsible Officers
of the Indenture Trustee, unless it shall be proved that the Indenture Trustee
was negligent in ascertaining the pertinent facts; and
(iii) the Indenture Trustee shall not be liable with respect to any
action taken or not taken by it in good faith in accordance with the direction
of the Holders of not less than a majority in aggregate principal amount of
Outstanding Certificates relating to the time, method and place of conducting
any proceeding for any remedy available to the Indenture Trustee, or
exercising any trust or power conferred upon the Indenture Trustee, under this
Indenture.
None of the provisions contained in this Indenture shall require the
Indenture Trustee to expend or risk its own funds or otherwise incur personal
financial liability in the performance of any of its duties or in the exercise
of any of its rights or powers, if the Indenture Trustee shall have determined
in good faith that the repayment of such funds or adequate indemnity against
such liability is not reasonably assured to it.
The Indenture Trustee agrees that it will execute and the Owner
Trustee agrees that it will, at the expense of the Lessee, file or cause to be
filed such continuation statements with respect to financing statements
relating to the security interest created hereunder in the Trust Indenture
Estate as may be specified from time to time in written instructions of the
Holders of not less than 25% in aggregate principal amount of Certificates
(which instructions may, by their terms, be operative only at a future date
and which shall be accompanied by the execution form of such continuation
statement so to be filed); provided that, notwithstanding the foregoing, the
Indenture Trustee may execute and file or cause to be filed any financing
statement which it from time to time deems appropriate.
(b) If any Event of Default shall have occurred and be continuing
and, after the latest date on which the Owner Trustee may cure such Event of
Default pursuant to Section 8.03 hereof, on request of the Holders of not less
than 25% in aggregate principal amount of Outstanding Certificates and subject
to indemnification, to the extent provided in Sections 7.08 and 9.03 and
Article XI hereof, as it may require against the costs, expenses and
liabilities to be incurred, the Indenture Trustee shall exercise such remedies
under Article 17 of the Lease as shall be specified in such request.
(c) The Indenture Trustee agrees that it will, in its individual
capacity and at its own cost and expense (but without any right of indemnity
in respect of any such cost or expense under Article XI hereof) promptly take
such action as may be necessary duly to discharge all Indenture Trustee's
Liens on any part of the Trust Indenture Estate.
(d) The Indenture Trustee will execute and deliver to the Lessee for
filing in accordance with Article 18 of the Lease any properly presented
document, instrument or financing or continuation statement specified in any
opinion delivered pursuant to Section 6.03(e) of the Participation Agreement.
The Indenture Trustee may rely on the act of presentation of any such
document, instrument, financing or continuation statement as evidencing the
fact that it is properly prepared and presented, provided that the Indenture
Trustee shall promptly correct any error in any such document, instrument,
financing or continuation statement of which a Responsible Officer of the
Indenture Trustee has actual knowledge.
(e) The Indenture Trustee will furnish to each Holder promptly upon
receipt thereof, duplicates or copies of all reports, notices, requests,
demands, certificates, financial statements and other instruments furnished to
the Indenture Trustee, to the extent that the same shall not have been
otherwise furnished to such Holder pursuant to this Indenture or to the extent
the Indenture Trustee does not reasonably believe that the same shall have
been furnished by the Lessee directly to such Holder.
Section 9.03. Certain Rights of the Indenture Trustee. Subject to
Section 9.02 hereof:
(a) the Indenture Trustee may rely and shall be protected in acting
or refraining from acting upon any resolution, Officer's Certificate or any
other certificate, statement, instrument, opinion, report, notice, request,
consent, order, bond, debenture, note, coupon, security 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, direction, order or demand of the Owner Trustee
mentioned herein shall be sufficiently evidenced by an Officer's
Certificate (unless other evidence in respect thereof be herein
specifically prescribed) upon which the Indenture Trustee may rely to prove
or establish a matter set forth therein;
(c) the Indenture Trustee may consult with counsel and any advice or
Opinion of Counsel shall be full and complete authorization and protection
in respect of any action taken, suffered or omitted to be taken by it
hereunder in good faith and in accordance with such advice or Opinion of
Counsel;
(d) the Indenture Trustee shall be under no obligation to exercise
any of the trusts or powers vested in it by this Indenture at the request,
order or direction of any of the Holders pursuant to the provisions of this
Indenture, unless such Holders shall have offered to the Indenture Trustee
reasonable security or indemnity against the costs, expenses and
liabilities which might be incurred therein or thereby;
(e) the Indenture Trustee shall not be liable for any action taken
or omitted by it in good faith and believed by it to be authorized or
within the discretion, rights or powers conferred upon it by this Indenture;
(f) prior to the occurrence of an Indenture Event of Default
hereunder and after the curing or waiving of all Indenture Events of
Default, the Indenture Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, approval,
appraisal, bond, debenture, note, coupon, security, or other paper or
document unless requested in writing to do so by the Majority in Interest
of Certificate Holders; provided that, if the payment within a reasonable
time to the Indenture Trustee of the costs, expenses or liabilities likely
to be incurred by it in the making of such investigation is, in the opinion
of the Indenture Trustee, not reasonably assured to the Indenture Trustee
by the security afforded to it by the terms of this Indenture, the
Indenture Trustee may require reasonable indemnity against such costs,
expenses or liabilities as a condition to proceeding; the reasonable
expenses of every such examination shall be paid by the Owner Trustee or,
if paid by the Indenture Trustee or any predecessor trustee, shall be
repaid by the Owner Trustee upon demand; and
(g) the Indenture Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
agents or attorneys not regularly in its employ and the Indenture Trustee
shall not be responsible for any misconduct or negligence on the part of
any such agent or attorney appointed with due care by it hereunder.
Section 9.04. Indenture Trustee Not Responsible for Recitals,
Disposition of Certificates or Application of Proceeds Thereof. The Indenture
Trustee assumes no responsibility for the correctness of the recitals
contained herein and in the Certificates, except the Indenture Trustee's
certificates of authentication. The Indenture Trustee makes no
representation as to the validity or sufficiency of this Indenture or of the
Certificates. The Indenture Trustee shall not be accountable for the use or
application by the Owner Trustee of any of the Certificates or of the proceeds
thereof.
Section 9.05. Indenture Trustee and Agents May Hold Certificates;
Collections, etc. The Indenture Trustee or any agent of the Indenture Trustee
in its individual or any other capacity may become the owner or pledgee of
Certificates with the same rights it would have if it were not the Indenture
Trustee or such agent and may otherwise deal with the Owner Trustee and
receive, collect, hold and retain collections from the Owner Trustee with the
same rights it would have if it were not the Indenture Trustee or such agent.
Section 9.06. Moneys Held by Indenture Trustee. Subject to Sections
5.08 hereof and 14.04 hereof, all moneys received by the Indenture Trustee
shall, until used or applied as herein provided, be held in trust for the
purposes for which they were received, but need not be segregated from other
funds except to the extent required by mandatory provisions of law. Neither
the Owner Trustee nor, subject to Section 5.08 hereof, the Indenture Trustee
nor any agent thereof shall be under any liability for interest on any moneys
received by it hereunder.
Section 9.07. Right of Indenture Trustee to Rely on Officer's
Certificate, etc. Subject to Sections 9.02 and 9.03 hereof, whenever in the
administration of the trusts of this Indenture the Indenture Trustee shall
deem it necessary or desirable that a matter be proved or established prior to
taking or suffering or omitting any action hereunder, such matter (unless
other evidence in respect thereof be specifically prescribed herein) may, in
the absence of bad faith on the part of the Indenture Trustee, be deemed to be
conclusively proved and established by an Officer's Certificate delivered to
the Indenture Trustee, and such certificate, in the absence of bad faith on
the part of the Indenture Trustee, shall be full warrant to the Indenture
Trustee for any action taken, suffered or omitted by it under the provisions
of this Indenture upon the faith thereof.
Section 9.08. Replacement Airframes and Replacement Engines. At any
time and from time to time any Airframe or Engine which has been subject to an
Event of Loss and may, or is required to, be replaced under Section 10.03,
11.03 or 11.04 of the Lease by a Replacement Airframe or Replacement Engine,
as the case may be, shall be replaced in accordance with the provisions of
this Section 9.08 and the provisions of said Sections of the Lease, the Owner
Trustee shall, from time to time, direct the Indenture Trustee to execute and
deliver to or as directed in writing by the Owner Trustee an appropriate
instrument releasing such Airframe and/or Engine as appropriate from the Lien
of this Indenture and the Indenture Trustee shall execute and deliver such
instrument as aforesaid without recourse or warranty, but only upon receipt by
or deposit with the Indenture Trustee of the following:
(1) A written request from the Owner Trustee requesting such release
and specifically describing the Airframe and/or Engine(s) to be so released.
(2) A certificate signed by a duly authorized officer of the Lessee
stating the following:
A. With respect to the replacement of any Airframe:
(i) a description of the Airframe subject to the Event of Loss
including the manufacturer, model, FAA registration number (or other
applicable registration information) and manufacturer's serial number;
(ii) a description of the Replacement Airframe, including the
manufacturer, model, FAA registration number (or other applicable
registration information) and manufacturer's serial number;
(iii) that on the date of the Indenture and Security Agreement
Supplement relating to the Replacement Airframe the Owner Trustee
will be the legal owner of and have good and marketable title to such
Replacement Airframe free and clear of all Liens except Liens
permitted under Section 6.01 of the Lease, that such Replacement
Airframe will on such date be in at least as good operating condition
and repair as required by the terms of the Lease, and that such
Replacement Airframe has been or, substantially concurrently with
such replacement, will be duly registered in the name of the Owner
Trustee under the Transportation Code or under the law then
applicable to the registration of the Airframe subject to the Event
of Loss and that an airworthiness certificate has been duly issued
under the Aviation Act (or such other applicable law) with respect to
such Replacement Airframe and that such registration and certificate
is, or will be, in full force and effect, and that the Lessee will
have the full right and authority to use such Replacement Airframe;
(iv) that the insurance required by Article 13 of the Lease is in
full force and effect with respect to such Replacement Airframe and
all premiums then due thereon have been paid in full;
(v) that the Replacement Airframe is of the same or an improved make
or model as the Airframe requested to be released from this Indenture;
(vi) that the value of the Replacement Airframe as of the date of such
certificate is not less than the value of the Airframe requested to
be released (assuming such Airframe was in the condition and repair
required to be maintained under the Lease);
(vii) that no Event of Default has occurred and is continuing or
would result from the making and granting of the request for release
and the addition of a Replacement Airframe;
(viii) that the release of the Airframe subject to the Event of Loss
will not impair the security of the Indenture in contravention of any
of the provisions of this Indenture;
(ix) that upon such replacement, the Lien of this Indenture will
apply to the Replacement Airframe and such Lien will be a first
priority security interest in favor of the Indenture Trustee; and
(x) that each of the conditions specified in Section 11.03 of the
Lease with respect to such Replacement Airframe has been satisfied.
B. With respect to the replacement of any Engine:
(i) a description of the Engine subject to the Event of Loss
including the manufacturer's serial number;
(ii) a description of the Replacement Engine including the
manufacturer's name, the engine model and serial number;
(iii) that on the date of the Indenture and Security Agreement
Supplement relating to the Replacement Engine the Owner Trustee will
be the legal owner of such Replacement Engine free and clear of all
Liens except Liens permitted under Section 6.01 of the Lease, and
that such Replacement Engine will on such date be in at least as good
operating condition and repair as required by the terms of the Lease
and will otherwise conform to the requirements set forth in the
definition of "Replacement Engine";
(iv) that the value of the Replacement Engine as of the date of such
certificate is not less than the value of the Engine to be released
(assuming such Engine was in the condition and repair required to be
maintained under the Lease);
(v) that the release of the Engine subject to the Event of Loss will
not impair the security of the Indenture in contravention of any of
the provisions of this Indenture;
(vi) that upon such replacement, the Lien of this Indenture will
apply to the Replacement Engine and such Lien will be a first
priority security interest in favor of the Indenture Trustee; and
(vii) that each of the conditions specified in Section 10.03, 11.03
or 11.04 of the Lease with respect to such Replacement Engine has
been satisfied.
(3) The appropriate instruments (i) transferring to the Owner
Trustee title to the Replacement Airframe or Replacement Engine to be received
as consideration for the Airframe or Engine to be released and (ii) assigning
to the Owner Trustee the benefit of all manufacturer's and vendor's
warranties, if any, generally available with respect to such Replacement
Airframe or Replacement Engine, and an Indenture and Security Agreement
Supplement subjecting such Replacement Airframe or Replacement Engine to the
Trust Agreement and to the Lien of this Indenture.
(4) A certificate from a firm of independent aircraft appraisers of
national standing satisfactory to the Indenture Trustee and the Owner Trustee
confirming the accuracy of the information set forth in clause (2)A.(vi) of
this Section 9.08.
(5) The opinion of Davis Polk & Wardwell, special counsel to the
Lessee, or other counsel reasonably satisfactory to the Indenture Trustee,
stating that:
(i) the certificates, opinions and other instruments and/or property
which have been or are therewith delivered to and deposited with the
Indenture Trustee conform to the requirements of this Indenture and the
Lease and, upon the basis of such application, the property so sold or
disposed of may be properly released from the Lien of this Indenture and
all conditions precedent herein provided for relating to such release have
been complied with; and
(ii) the Replacement Airframe or Replacement Engine has been validly
subjected to the Lien of this Indenture and covered by the Lease, the
instruments subjecting such Replacement Airframe or Replacement Engine to
the Lease and to the Lien of this Indenture, as the case may be, have been
duly filed for recordation pursuant to the Transportation Code or any other
law then applicable to the registration of the Aircraft, and no further
action, filing or recording of any document is necessary or advisable in
order to establish and perfect the title of the Owner Trustee to and the
Lien of this Indenture on such Replacement Airframe or Replacement Engine
and the Indenture Trustee would be entitled to the benefits of Section 1110
of the Bankruptcy Code with respect to such Replacement Airframe or
Replacement Engine, provided, that such opinion need not be to the effect
specified in the foregoing clause to the extent that the benefits of such
Section 1110 would not have been, by reason of a change in law or
governmental interpretation thereof after the date hereof, available to the
Indenture Trustee with respect to the Aircraft immediately prior to such
substitution had such Event of Loss not occurred.
Section 9.09. Indenture and Security Agreement Supplement for
Replacements. In the event of the substitution of a Replacement Airframe or a
Replacement Engine as contemplated by Section 10.03 or Article 11 of the
Lease, the Owner Trustee and the Indenture Trustee agree for the benefit of
the Holders and the Lessee, subject to fulfillment of the conditions precedent
and compliance by the Lessee with its obligations set forth in Section 10.03
or Article 11 of the Lease, to execute and deliver an Indenture and Security
Agreement Supplement as contemplated by Section 9.08(3) hereof and, provided
no Event of Default shall have occurred and be continuing, execute and deliver
to the Lessee an appropriate instrument releasing the Airframe or Engine being
replaced from the Lien of this Indenture.
Section 9.10. Effect of Replacement. In the event of the
substitution of a Replacement Airframe or a Replacement Engine as contemplated
by Section 10.01 or Article 11 of the Lease and Section 9.08 hereof, all
provisions of this Indenture relating to the Airframe or Engine or Engines
being replaced shall be applicable to such Replacement Airframe or Replacement
Engine or Engines with the same force and effect as if such Replacement
Airframe or Replacement Engine or Engines were the same Airframe or engine or
engines, as the case may be, as the Airframe or Engine or Engines being
replaced but for the Event of Loss with respect to the Airframe or Engine or
Engines being replaced.
Section 9.11. Compensation. The Owner Trustee covenants and agrees
to pay, and the Indenture Trustee shall be entitled to receive, reasonable
compensation and payment or reimbursement for its reasonable advances,
expenses and disbursements (including the reasonable compensation and expenses
and disbursements of its counsel, agents and other persons not regularly in
its employ) in connection with its services rendered hereunder or in any way
relating to or arising out of the administration of the Trust Indenture Estate
and shall have a priority claim on the Trust Indenture Estate for the payment
of such compensation, advances, expenses and disbursements to the extent that
such compensation, advances, expenses and disbursements shall not be paid by
the Lessee, and shall have the right to use or apply any moneys held by it
hereunder in the Trust Indenture Estate toward such payments; provided that,
so long as the Lease is in effect, the Indenture Trustee shall not make any
claim for payment under this Section 9.11 against the Owner Trustee without
first making demand on the Lessee for payment of such claim. The Indenture
Trustee agrees that it shall have no right against any Holder, SSB or the
Owner Participant for any fee as compensation for its services as trustee
under this Indenture.
ARTICLE X
CONCERNING THE HOLDERS
Section 10.01. Evidence of Action Taken by Holders. (a) Any
request, demand, authorization, direction, notice, consent, waiver or other
action provided by this Indenture to be given or taken by Holders may be
embodied in and evidenced by one or more instruments of substantially similar
tenor signed by such Holders in person or by an agent duly appointed in
writing, and, except as otherwise expressly provided herein, such action shall
become effective when such instrument or instruments are delivered to the
Indenture Trustee and, if expressly required herein, to the Owner Trustee.
Proof of execution of any instrument or of a writing appointing any such agent
shall be sufficient for any purpose of this Indenture and (subject to Sections
9.02 and 9.03 hereof) conclusive in favor of the Indenture Trustee and the
Owner Trustee, if made in the manner provided in this Article.
(b) For the purpose of determining the Holders entitled to vote or
consent to any direction, waiver or other action of such Holders under Section
7.10 or 7.11 hereof, the Lessee may set a record date for such vote or consent
by specifying such record date in an Officer's Certificate delivered to the
Indenture Trustee. Such record date shall be a date not more than 15 days
prior to the first solicitation of such vote or consent.
Section 10.02. Proof of Execution of Instruments and of Holding of
Certificates. Subject to Sections 9.02 and 9.03 hereof, the execution of any
instrument by a Holder or his agent or proxy may be proved in accordance with
such reasonable rules and regulations as may be prescribed by the Indenture
Trustee. The holding of Certificates shall be proved by the Register or by a
certificate of the Registrar.
Section 10.03. Holders to Be Treated as Owners. Prior to due
presentment for registration of transfer of any Certificate, the Owner
Trustee, the Indenture Trustee, any agent of the Owner Trustee or the
Indenture Trustee, the Paying Agent, if any, the Registrar and the Lessee
shall deem and treat the Person in whose name such Certificate shall be
registered upon the Register as the absolute owner of such Certificate
(whether or not such Certificate shall be overdue and notwithstanding any
notation of ownership or other writing thereon) for the purpose of receiving
payment of or on account of the principal of and, subject to the provisions of
this Indenture, interest on such Certificate and for all other purposes; and
neither the Owner Trustee nor the Indenture Trustee (nor any agent of the
Owner Trustee or the Indenture Trustee) nor the Paying Agent, if any, nor the
Registrar nor the Lessee shall be affected by any notice to the contrary. All
such payments so made to any such person, or upon his order, shall be valid,
and, to the extent of the sum or sums so paid, effectual to satisfy and
discharge the liability for moneys payable upon any such Certificate.
Section 10.04. Certificates Owned by Owner Trustee and the Lessee
Deemed Not Outstanding. In determining whether the Holders of the requisite
aggregate principal amount of Certificates have concurred in any direction,
consent or waiver under this Indenture, Certificates which are owned by the
Owner Trustee, the Owner Participant, SSB, the Lessee or by any Affiliate
thereof shall be disregarded and deemed not to be Outstanding for the purpose
of any such determination; provided that for the purpose of determining
whether the Indenture Trustee shall be protected in relying on any such
direction, consent or waiver, only if a Responsible Officer of the Indenture
Trustee has actual knowledge that certain Certificates are so owned by any
person directly or indirectly controlling or controlled by or under direct or
indirect common control with the Owner Trustee, the Owner Participant, SSB or
the Lessee shall such Certificates be so disregarded; and provided further
that if all Certificates which would be deemed Outstanding in the absence of
the foregoing provision are owned by the Owner Trustee, SSB or the Owner
Participant or by any Affiliate thereof, then such Certificates shall be
deemed Outstanding for the purpose of any such determination. Certificates
so owned which have been pledged in good faith may be regarded as Outstanding
if the pledgee establishes to the satisfaction of the Indenture Trustee the
pledgee's right so to act with respect to such Certificates and that the
pledgee is not the Owner Trustee, the Owner Participant, SSB or the Lessee or
any Person directly or indirectly controlling or controlled by or under direct
or indirect common control with the Owner Trustee, the Owner Participant, SSB
or the Lessee. In case of a dispute as to such right, the advice of counsel
shall be full protection in respect of any decision made by the Indenture
Trustee in accordance with such advice, unless the Lessee, the Owner Trustee,
SSB, or the Owner Participant are actually named in the Register. Upon
request of the Indenture Trustee, the Owner Trustee, the Owner Participant,
SSB and the Lessee shall furnish to the Indenture Trustee promptly an
Officer's Certificate listing and identifying all Certificates, if any, known
by the Owner Trustee, the Owner Participant, SSB or the Lessee to be owned or
held by or for the account of any of the above-described persons; and, subject
to Sections 9.02 and 9.03 hereof, the Indenture Trustee shall be entitled to
accept such Officer's Certificate as conclusive evidence of the facts set
forth therein and of the fact that all Certificates not listed therein are
outstanding for the purpose of any such determination.
Section 10.05. Right of Revocation of Action Taken. At any time
prior to (but not after) the evidencing to the Indenture Trustee, as provided
in Section 10.01, of the taking of any action by the Holders of the percentage
in aggregate principal amount of the Certificates specified in this Indenture
in connection with such action, any Holder of a Certificate, the serial number
of which is shown by the evidence to be included among the serial numbers of
the Certificates the Holders of which have consented to such action, may, by
filing written notice at the Corporate Trust Department and upon proof of
holding as provided in this Article, revoke such action so far as concerns
such Certificate. Except as aforesaid, any such action taken by the Holder
shall be conclusive and binding upon such Holder and upon all future Holders
and owners of such Certificate and of any Certificates issued in exchange or
substitution therefor, irrespective of whether or not any notation in regard
thereto is made upon any such Certificate or otherwise. Any action taken by
the Holders of the percentage in aggregate principal amount of the
Certificates specified in this Indenture in connection with such action shall
be conclusively binding upon the Owner Trustee, the Indenture Trustee and the
Holders of all the Certificates.
Section 10.06. ERISA. Any Person, other than the Subordination
Agent, who is acquiring the Certificates will be deemed to represent and
warrant that (i) no assets of an employee benefit plan subject to Title I of
ERISA or an individual retirement account or plan subject to Section 4975 of
the Code, or any trust established under any such plan or account, have been
used to acquire or hold any of the Certificates, or (ii) that one or more
administrative or statutory exemptions from the prohibited transaction rules
under Section 406 of ERISA and Section 4975 of the Code applies to its
purchase and holding of the Certificates such that its purchase and holding of
the Certificates will not result in a non-exempt prohibited transaction under
Section 406 of ERISA and Section 4975 of the Code.
ARTICLE XI
INDEMNIFICATION OF INDENTURE
TRUSTEE BY OWNER TRUSTEE
The Owner Trustee, not individually but solely in its capacity as
Owner Trustee under the Trust Agreement, hereby agrees, whether or not any of
the transactions contemplated hereby shall be consummated, to assume liability
for, and does hereby indemnify, protect, save and keep harmless the Indenture
Trustee, in its individual capacity, and its successors, assigns, agents and
servants solely from the Lessor's Estate, with respect to the claims of the
Indenture Trustee for payment or reimbursement under Section 9.11 hereof and
from and against any and all liabilities, obligations, losses, damages,
penalties, taxes (excluding any taxes payable by the Indenture Trustee on or
measured by any compensation received by the Indenture Trustee for its
services under this Indenture and any taxes excluded from the Lessee's
indemnity obligation under Section 8.01(b) of the Participation Agreement),
claims, actions, suits, costs, expenses or disbursements (including legal fees
and expenses) of any kind and nature whatsoever which may be imposed on,
incurred by or asserted against the Indenture Trustee (whether or not also
agreed to be indemnified against by any other person under any other document)
in any way relating to or arising out of this Indenture, or any other
Indenture Documents or the enforcement of any of the terms of any thereof, or
in any way relating to or arising out of the manufacture, purchase,
acceptance, nonacceptance, rejection, ownership, delivery, lease, possession,
use, operation, condition, sale, return or other disposition of the Aircraft or
any Engine (including, without limitation, latent and other defects, whether
or not discoverable, and any claim for patent, trademark or copyright
infringement), or in any way relating to or arising out of the administration
of the Trust Indenture Estate or the action or inaction of the Indenture
Trustee hereunder, except only (a) in the case of willful misconduct or gross
negligence of the Indenture Trustee in the performance of its duties
hereunder, (b) as may result from the inaccuracy of any representation or
warranty of the Indenture Trustee in the Participation Agreement, (c) as
otherwise provided in Section 9.02(c) hereof or (d) as otherwise excluded by
the terms of Article 8 or Article 9 of the Participation Agreement from the
Lessee's general indemnity or general tax indemnity to the Indenture Trustee
under said Article; provided that so long as the Lease is in effect, the
Indenture Trustee shall not make any claim under this Article XI for any claim
or expense indemnified by the Lessee under the Participation Agreement without
first making demand on the Lessee for payment of such claim or expense. The
Indenture Trustee shall be entitled to indemnification, from the Trust
Indenture Estate, for any liability, obligation, loss, damage, penalty, claim,
action, suit, cost, expense or disbursement indemnified against pursuant to
this Article XI to the extent not reimbursed by the Lessee or others, but
without releasing any of them from their respective agreements of
reimbursement; and to secure the same the Indenture Trustee shall have a prior
Lien on the Trust Indenture Estate. The indemnities contained in this Article
XI shall survive the termination of this Indenture and the resignation or
removal of the Indenture Trustee. Upon payment in full by the Owner Trustee
of any indemnity pursuant to this Article XI, the Owner Trustee shall, so long
as no Indenture Event of Default shall have occurred and be continuing, be
subrogated to the rights of the Indenture Trustee, if any, in respect of the
matter as to which the indemnity was paid.
ARTICLE XII
SUCCESSOR TRUSTEES
Section 12.01. Notice of Successor Owner Trustee. In the case of any
appointment of a successor to the Owner Trustee pursuant to the Trust
Agreement or any merger, conversion, consolidation or sale of substantially
all of the corporate trust business of the Owner Trustee pursuant to the Trust
Agreement, the successor Owner Trustee shall give prompt written notice
thereof to the Indenture Trustee.
Section 12.02. Resignation and Removal of Indenture Trustee;
Appointment of Successor. (a) The Indenture Trustee or any successor thereto
may resign at any time without cause by giving at least 30 days' prior written
notice to the Owner Trustee, the Owner Participant, the Lessee and each
Holder, such resignation to be effective upon the acceptance of the
trusteeship by a successor Indenture Trustee. In addition, the Majority in
Interest of the Certificate Holders or the Owner Trustee, with the consent of
the Lessee and the Majority in Interest of the Certificate Holders may at any
time remove the Indenture Trustee without cause by an instrument in writing
delivered to the Lessee, the Owner Trustee, the Owner Participant, and the
Indenture Trustee, and the Indenture Trustee shall promptly notify each Holder
thereof of such action in writing, such removal to be effective upon the
acceptance of the trusteeship by a successor Indenture Trustee. In the case
of the resignation or removal of the Indenture Trustee, the Majority in
Interest of the Certificate Holders, or the Owner Trustee, with the consent of
the Lessee and the Majority in Interest of the Certificate Holders, may
appoint a successor Indenture Trustee by an instrument signed by such Holders.
If a successor Indenture Trustee shall not have been appointed within 30 days
after such notice of resignation or removal, the Indenture Trustee, the Owner
Trustee, the Lessee, the Owner Participant, or any Holder may apply to any
court of competent jurisdiction to appoint a successor Indenture Trustee to
act until such time, if any, as a successor shall have been appointed as
provided above. The successor Indenture Trustee so appointed by such court
shall immediately and without further act be superseded by any successor
Indenture Trustee appointed as provided above.
(b) In case at any time any of the following shall occur:
(i) the Indenture Trustee shall cease to be eligible in accordance
with the provisions of Section 12.03 hereof and shall fail to resign after
written request therefor by the Owner Trustee or by any Holder; or
(ii) the Indenture Trustee shall become incapable of acting, or shall
be adjudged a bankrupt or insolvent, or a receiver or liquidator of the
Indenture Trustee or of its property shall be appointed, or any public
officer shall take charge or control of the Indenture Trustee or of its
property or affairs for the purpose of rehabilitation, conservation or
liquidation;
then the Owner Trustee may remove the Indenture Trustee and, with the consent
of the Lessee, appoint a successor trustee by written instrument, in
duplicate, executed by a Responsible Officer of the Owner Trustee, one copy of
which instrument shall be delivered to the Indenture Trustee so removed and
one copy to the successor trustee, or, subject to the provisions of Section
7.13 hereof, any Holder who has been a bona fide Holder 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 Indenture Trustee
and the appointment of a successor trustee. Such court may thereupon, after
such notice, if any, as it may deem proper and prescribe, remove the Indenture
Trustee and appoint a successor trustee, which removal and appointment shall
become effective upon acceptance of appointment by the successor trustee as
provided in Section 12.04 hereof. The successor Indenture Trustee so
appointed by such court shall immediately and without further act be
superseded by any successor Indenture Trustee appointed as provided above
within one year from the date of appointment by such court.
Section 12.03. Persons Eligible for Appointment as Indenture
Trustee. There shall at all times be an Indenture Trustee hereunder which
shall be (i)(x) a bank or trust company organized and doing business under the
laws of the United States of America or any state or the District of Columbia
having a combined capital and surplus of at least $100,000,000 or (y) a bank
or trust company whose obligations hereunder are fully guaranteed by a direct
or indirect parent thereof having a combined capital and surplus of at least
$100,000,000 and (ii) a Citizen of the United States authorized under
applicable law to exercise corporate trust powers and subject to supervision of
examination by Federal, state or District of Columbia authority. If such
corporation publishes reports of condition at least annually, pursuant to law
or to the requirements of the aforesaid supervising or examining authority,
then for the purposes of this Section, 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 condition so published. In case at any
time the Indenture Trustee shall cease to be eligible in accordance with the
provisions of this Section, the Indenture Trustee shall resign immediately in
the manner and with the effect specified in Section 12.02 hereof.
Section 12.04. Acceptance of Appointment by Successor Trustee. Any
successor trustee appointed as provided in Section 12.02 hereof shall execute
and deliver to the Owner Trustee, the Lessee, and to its predecessor trustee
an instrument accepting such appointment hereunder, in form and substance
reasonably satisfactory to the Owner Trustee, and thereupon the resignation or
removal of the predecessor trustee shall become effective and such successor
trustee, without any further act, deed or conveyance, shall become vested with
all rights, powers, duties and obligations of its predecessor hereunder, with
like effect as if originally named as trustee herein; but, nevertheless, on
the written request of the Owner Trustee or of the successor trustee, upon
payment of its charges then unpaid, the trustee ceasing to act shall, subject
to Section 14.04 hereof, pay over to the successor trustee all moneys at the
time held by it hereunder and shall execute and deliver an instrument
transferring to such successor trustee all such rights, powers, duties and
obligations. Upon request of any such successor trustee, the Owner Trustee
shall execute any and all instruments in writing for more fully and certainly
vesting in and confirming to such successor trustee all such rights and
powers. Any trustee ceasing to act shall, nevertheless, retain a prior claim
upon all property or funds held or collected by such trustee to secure any
amounts then due it pursuant to the provisions of Article XI hereof.
No successor trustee shall accept appointment as provided in this
Section 12.04 unless at the time of such acceptance such successor trustee
shall be eligible under the provisions of Section 12.03 hereof.
Upon acceptance of appointment by a successor trustee as provided in
this Section 12.04, the successor trustee shall mail notice thereof by
first-class mail to the Holders at their last addresses as they shall appear
in the Register, and shall mail a copy of such notice to the Lessee and the
Owner Trustee. If the acceptance of appointment is substantially
contemporaneous with the resignation, then the notice called for by the
preceding sentence may be combined with the notice called for by Section 12.02
hereof.
Section 12.05. Merger, Conversion, Consolidation or Succession to
Business of Indenture Trustee. Any corporation into which the Indenture
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 Indenture Trustee shall be a party, or any corporation succeeding to
the corporate trust business of the Indenture Trustee, shall be the successor
to the Indenture Trustee hereunder, provided that, anything herein to the
contrary notwithstanding, such corporation shall be eligible under the
provisions of Section 12.03 hereof, without the execution or filing of any
paper or any further act on the part of any of the parties hereto.
In case at the time such successor to the Indenture Trustee shall
succeed to the trusts created by this Indenture any of the Certificates shall
have been authenticated but not delivered, any such successor to the Indenture
Trustee may adopt the certificate of authentication of any predecessor
Indenture Trustee and deliver such Certificates so authenticated; and, in case
at that time any of the Certificates shall not have been authenticated, any
successor to the Indenture Trustee may authenticate such Certificates either
in the name of any predecessor hereunder or in the name of the successor
Indenture Trustee; and in all such cases such certificate shall have the full
force which it is anywhere in the Certificates or in this Indenture provided
that the certificate of the Indenture Trustee shall have; provided, that the
right to adopt the certificate of authentication of any predecessor Indenture
Trustee or to authenticate Certificates in the name of any predecessor
Indenture Trustee shall apply only to its successor or successors by merger,
conversion or consolidation.
Section 12.06. Appointment of Separate Trustees. (a) At any time or
times, for the purpose of meeting any legal requirements of any jurisdiction
in which any part of the Trust Indenture Estate may at the time be located or
in which any action of the Indenture Trustee may be required to be performed
or taken, the Indenture Trustee, by an instrument in writing signed by it, may
appoint one or more individuals or corporations to act as a separate trustee
or separate trustees or co-trustee, acting jointly with the Indenture Trustee,
of all or any part of the Trust Indenture Estate, to the full extent that
local law makes it necessary for such separate trustee or separate trustees or
co-trustee acting jointly with the Indenture Trustee to act.
(b) The Indenture Trustee and, at the request of the Indenture
Trustee, the Owner Trustee, shall execute, acknowledge and deliver all such
instruments as may be required by the legal requirements of any jurisdiction
or by any such separate trustee or separate trustees or co-trustee for the
purpose of more fully confirming such title, rights or duties to such separate
trustee or separate trustees or co-trustee. Upon the acceptance in writing of
such appointment by any such separate trustee or separate trustees or
co-trustee, it, he or they shall be vested with such title to the Trust
Indenture Estate or any part thereof, and with such rights, powers, duties and
obligations, as shall be specified in the instrument of appointment, and such
rights, powers, duties and obligations shall be conferred or imposed upon and
exercised or performed by the Indenture Trustee, or the Indenture Trustee and
such separate trustee or separate trustees or co-trustee jointly with the
Indenture Trustee subject to all the terms of this Indenture, except to the
extent that under any law of any jurisdiction in which any particular act or
acts are to be performed the Indenture Trustee shall be incompetent or
unqualified to perform such act or acts, in which event such rights, powers,
duties and obligations shall be exercised and performed by such separate
trustee or separate trustees or co-trustee, as the case may be. Any separate
trustee or separate trustees or co-trustee may, at any time by an instrument
in writing, constitute the Indenture Trustee its or his attorney-in-fact and
agent with full power and authority to do all acts and things and to exercise
all discretion on its or his behalf and in its or his name. In case any such
separate trustee or co-trustee shall die, become incapable of acting, resign
or be removed, the title to the Trust Indenture Estate and all assets,
property, rights, powers, duties and obligations and duties of such separate
trustee or co-trustee shall, so far as permitted by law, vest in and be
exercised by the Indenture Trustee, without the appointment of a successor to
such separate trustee or co-trustee unless and until a successor is appointed.
(c) All provisions of this Indenture which are for the benefit of
the Indenture Trustee (including without limitation Article XI hereof) shall
extend to and apply to each separate trustee or co-trustee appointed pursuant
to the foregoing provisions of this Section 12.06.
(d) Every additional trustee and separate trustee hereunder shall,
to the extent permitted by law, be appointed and act and the Indenture Trustee
shall act, subject to the following provisions and conditions:
(i) all powers, duties, obligations and rights conferred upon the
Indenture Trustee in respect of the receipt, custody, investment and
payment of moneys shall be exercised solely by the Indenture Trustee;
(ii) all other rights, powers, duties and obligations conferred or
imposed upon the Indenture Trustee shall be conferred or imposed and
exercised or performed by the Indenture Trustee and such additional trustee
or trustees and separate trustee or trustees jointly except to the extent
that under any law of any jurisdiction in which any particular act or acts
are to be performed, the Indenture Trustee shall be incompetent or
unqualified to perform such act or acts, in which event such rights,
powers, duties and obligations (including the holding of title to the Trust
Indenture Estate in any such jurisdiction) shall be exercised and performed
by such additional trustee or trustees or separate trustee or trustees;
(iii) no power hereby given to, or exercisable by, any such additional
trustee or separate trustee shall be exercised hereunder by such additional
trustee or separate trustee except jointly with, or with the consent of,
the Indenture Trustee; and
(iv) no trustee hereunder shall be liable either personally or in its
capacity as such trustee, by reason of any act or omission of any other
trustee hereunder.
If at any time the Indenture Trustee shall deem it no longer necessary or
prudent in order to conform to any such law, the Indenture Trustee shall
execute and deliver an indenture supplemental hereto and all other instruments
and agreements necessary or proper to remove any additional trustee or
separate trustee.
(e) Any request, approval or consent in writing by the Indenture
Trustee to any additional trustee or separate trustee shall be sufficient
warrant to such additional trustee or separate trustee, as the case may be, to
take such action as may be so requested, approved or consented to.
(f) Notwithstanding any other provision of this Section 12.06, the
powers of any additional trustee or separate trustee shall not exceed those of
the Indenture Trustee hereunder.
ARTICLE XIII
SUPPLEMENTS AND AMENDMENTS TO THIS
TRUST INDENTURE AND OTHER DOCUMENTS
Section 13.01. Supplemental Indentures Without Consent of Holders.
The Owner Trustee (when authorized by the Owner Participant) and the Indenture
Trustee, without consent of the Holders, may enter into an indenture or
indentures supplemental hereto for one or more of the following purposes:
(a) to convey, transfer, assign, mortgage or pledge any property or
assets to the Indenture Trustee as security for the Certificates;
(b) to evidence the succession of another corporation to the Owner
Trustee or successive successions, and the assumption by the successor
corporation of the covenants, agreements and obligations of the Owner
Trustee herein and in the Certificates;
(c) to add to the covenants of the Owner Trustee such further
covenants, restrictions, conditions or provisions as it and the Indenture
Trustee shall consider to be for the protection of the Holders, and to make
the occurrence, or the occurrence and continuance, of a default in any such
additional covenants, restrictions, conditions or provisions an Indenture
Event of Default permitting the enforcement of all or any of the several
remedies provided herein; provided, that in respect of any such additional
covenant, restriction, condition or provision such supplemental indenture
may provide for a particular period of grace after default (which period
may be shorter or longer than that allowed in the case of other defaults)
or may provide for an immediate enforcement upon such an Indenture Event of
Default or may limit the remedies available to the Indenture Trustee upon
such an Indenture Event of Default or may limit the right of not less than
the Majority in Interest of Certificate Holders to waive such an Indenture
Event of Default;
(d) to surrender any right or power conferred herein upon the Owner
Trustee or the Owner Participant;
(e) to cure any ambiguity or to correct or supplement any provision
contained herein or in any supplemental indenture which may be defective or
inconsistent with any other provision contained herein or in any
supplemental indenture; or to make such other provisions in regard to
matters or questions arising under this Indenture or under any supplemental
indenture as the Owner Trustee may deem necessary or desirable and which
shall not adversely affect the interests of the Holders;
(f) to correct or amplify the description of any property at any
time subject to the Lien of this Indenture or better to assure, convey and
confirm unto the Indenture Trustee any property subject or required to be
subject to the Lien of this Indenture or to subject Replacement Airframe or
Replacement Engines to the Lien of this Indenture in accordance with the
provisions hereof or with the Lease or to release from the Lien of this
Indenture property that has been substituted on or removed from the
Aircraft as contemplated in Section 3.07 hereof; provided that supplements
to this Indenture entered into for the purpose of subjecting Replacement
Airframe or Replacement Engines to the Lien of this Indenture need only be
executed by the Owner Trustee and the Indenture Trustee;
(g) to provide for the issuance under this Indenture of Certificates
in coupon form (including Certificates registrable as to principal only)
and to provide for exchangeability of such Certificates with Certificates
issued hereunder in fully registered form, and to make all appropriate
changes for such purpose;
(h) to effect the re-registration of the Aircraft pursuant to
Section 6.03(b) of the Participation Agreement; and
(i) to add, eliminate or change any provision hereunder so long as
such action shall not adversely affect the interests of the Holders.
The Indenture Trustee is hereby authorized to join in the execution
of any such supplemental indenture, to make any further appropriate agreements
and stipulations which may be contained therein and to accept the conveyance,
transfer, assignment, mortgage or pledge of any property thereunder, but the
Indenture Trustee shall not be obligated to enter into any such supplemental
indenture which adversely affects the Indenture Trustee's own rights, duties
or immunities under this Indenture or otherwise.
Any such supplemental indenture may be executed without the consent of
the Holders of Outstanding Certificates, notwithstanding any of the provisions
of Section 13.02 hereof.
Section 13.02. Supplemental Indentures With Consent of Holders.
With the consent (evidenced as provided in Article X) of the Majority in
Interest of Certificate Holders, the Owner Trustee (when authorized by the
Owner Participant) and the Indenture Trustee may, from time to time and at any
time, enter into an indenture or indentures supplemental hereto for the
purpose of adding any provisions to or changing in any manner or eliminating
any of the provisions of this Indenture or of any supplemental indenture or of
modifying in any manner the rights of the Holders; provided, however, that,
without the consent of each and every Holder and each Liquidity Provider, no
such amendment of or supplement to this Indenture or any indenture
supplemental hereto, or modification of the terms of, or consent under, any
thereof, shall (a) modify any of the provisions of Section 7.11 hereof or this
Section 13.02, (b) reduce the amount or extend the time of payment of any
amount owing or payable under any Certificate or reduce the interest payable
on any Certificate (except that only the consent of the Holder shall be
required for any decrease in any amounts of or the rate of interest payable on
such Certificate or any extension for the time of payment of any amount
payable under such Certificate), or alter or modify the provisions of Article
V hereof with respect to the order of priorities in which distributions
thereunder shall be made as among Holders of different Series of Certificates
or as between the Holder and the Owner Trustee or the Owner Participant or
with respect to the amount or time of payment of any such distribution, or
alter or modify the circumstances under which a Make-Whole Premium shall be
payable, or alter the currency in which any amount payable under any
Certificate is to be paid, or impair the right of any Holder to commence legal
proceedings to enforce a right to receive payment hereunder, (c) reduce,
modify or amend any indemnities in favor of any Holder or in favor of or to be
paid by the Owner Participant (except as consented to by each Person adversely
affected thereby), or (d) create or permit the creation of any Lien on the
Trust Indenture Estate or any part thereof prior to or pari passu with the
Lien of this Indenture, except as expressly permitted herein, or deprive any
Holder of the benefit of the Lien of this Indenture on the Trust Indenture
Estate, except as provided in Section 7.02 hereof or in connection with the
exercise of remedies under Article VII. This Section 13.02 shall not apply to
any indenture or indentures supplemental hereto permitted by, and complying
with the terms of, Section 13.06 hereof.
Upon the request of the Owner Trustee (at the direction of the Owner
Participant) and upon the filing with the Indenture Trustee of evidence of the
consent of Holders and other documents, if any, required by Section 10.01, the
Indenture Trustee shall join with the Owner Trustee and the Lessee in the
execution of such supplemental indenture unless such supplemental indenture
affects the Indenture Trustee's own rights, duties or immunities under this
Indenture or otherwise, in which case the Indenture Trustee may in its
discretion, but shall not be obligated to, enter into such supplemental
indenture.
It shall not be necessary for the consent of the Holders under this
Section to approve the particular form of any proposed supplemental indenture,
but it shall be sufficient if such consent shall approve the substance
thereof.
Promptly after the execution by the Owner Trustee, the Indenture
Trustee and the Lessee of any supplemental indenture pursuant to the
provisions of this Section, the Indenture Trustee shall mail a notice thereof
by first-class mail to the Holders at their addresses as they shall appear on
the registry books of the Registrar, setting forth in general terms the
substance of such supplemental indenture. Any failure of the Indenture
Trustee to mail such notice, or any defect therein, shall not, however, in any
way impair or affect the validity of any such supplemental indenture.
Section 13.03. Effect of Supplemental Indenture. Upon the execution
of any supplemental indenture pursuant to the provisions hereof, this
Indenture shall be and be deemed to be modified and amended in accordance
therewith and the respective rights, limitations of rights, obligations,
duties and immunities under this Indenture of the Indenture Trustee, the Owner
Trustee, the Lessee and the Holders shall thereafter be determined, exercised
and enforced hereunder subject in all respects to such modifications and
amendments, and all the terms and conditions of any such supplemental
indenture shall be and be deemed to be part of the terms and conditions of
this Indenture for any and all purposes.
Section 13.04. Documents to Be Given to Indenture Trustee. The
Indenture Trustee, subject to the provisions of Sections 9.02 and 9.03, may
receive an Officer's Certificate and an Opinion of Counsel as conclusive
evidence that any such supplemental indenture complies with the applicable
provisions of this Indenture.
Section 13.05. Notation on Certificates in Respect of Supplemental
Indentures. Certificates authenticated and delivered after the execution of
any supplemental indenture pursuant to the provisions of this Article may bear
a notation in form approved by the Indenture Trustee as to any matter provided
for by such supplemental indenture. If the Owner Trustee or the Indenture
Trustee shall so determine, new Certificates so modified as to conform, in the
opinion of the Owner Trustee and the Indenture Trustee, to any modification of
this Indenture contained in any such supplemental indenture may be prepared by
the Owner Trustee, authenticated by the Indenture Trustee and delivered in
exchange for the Outstanding Certificates.
Section 13.06. No Request Necessary for Lease Supplement or Indenture
and Security Agreement Supplement. Notwithstanding anything contained in
Section 13.02 hereof, no written request or consent of the Indenture Trustee,
any Holder or the Owner Participant pursuant to Section 13.02 hereof shall be
required to enable the Owner Trustee to enter into any supplement to the Lease
with the Lessee in accordance with the terms and conditions of the Lease to
subject a Replacement Airframe or Replacement Engine thereto or to execute and
deliver an Indenture and Security Agreement Supplement pursuant to the terms
hereof.
Section 13.07. Notices to Liquidity Providers. Any request made to
any Holder for consent to any amendment, supplement or waiver pursuant to
Section 7.11, 8.01 or this Article XIII shall be promptly furnished by the
Indenture Trustee to each Liquidity Provider.
ARTICLE XIV
SATISFACTION AND DISCHARGE OF INDENTURE;
UNCLAIMED MONEYS
Section 14.01. Satisfaction and Discharge of Indenture; Termination
of Indenture. If at any time after (a) the Owner Trustee shall have paid or
caused to be paid the principal of and interest on all the Certificates
outstanding hereunder, as and when the same shall have become due and payable,
or (b) the Owner Trustee shall have delivered to the Indenture Trustee for
cancellation all Certificates theretofore authenticated (other than any
Certificates which shall have been destroyed, lost or stolen and which shall
have been replaced or paid as provided in Section 2.07 hereof) or (c) (i) all
such Certificates not theretofore delivered to the Indenture Trustee for
cancellation shall have become due and payable, or are by their terms to
become due and payable within one year or are to be called for prepayment
within one year under arrangements satisfactory to the Indenture Trustee for
the giving of notice of prepayment by the Indenture Trustee in the name and at
the expense of the Owner Trustee, and (ii) the Owner Trustee shall have
irrevocably deposited or caused to be deposited with the Indenture Trustee as
trust funds the entire amount in cash (other than moneys repaid by the
Indenture Trustee or any paying agent to the Owner Trustee in accordance with
Section 14.04 hereof) or Government obligations maturing as to principal and
interest in such amounts and at such times as will insure the availability of
cash sufficient to pay at maturity all such Certificates not theretofore
delivered to the Indenture Trustee for cancellation, including principal and
interest due or to become due to such date of maturity as the case may be, and
if, in any such case, the Owner Trustee shall also pay or cause to be paid all
other sums then payable hereunder by the Owner Trustee, then this Indenture
shall cease to be of further effect (except in the case of (c) above as to (A)
rights of registration of transfer and exchange, and the Owner Trustee's right
of optional prepayment pursuant to Section 6.02(a)(ii) hereof, (B)
substitution of mutilated, defaced, destroyed, lost or stolen Certificates,
(C) rights of Holders to receive payments of principal thereof and interest
thereon, upon the original stated due dates therefor (but not upon
acceleration), (D) the rights, obligations, indemnities and immunities of the
Indenture Trustee hereunder and (E) the rights of the Holders as beneficiaries
hereof with respect to the property so deposited with the Indenture Trustee
payable to all or any of them), and the Indenture Trustee, on demand of the
Owner Trustee accompanied by an Officer's Certificate and an Opinion of
Counsel (covering such matters reasonably requested by, and in form and
substance reasonably satisfactory to, the Indenture Trustee) and at the cost
and expense of the Owner Trustee, shall execute proper instruments
acknowledging such satisfaction of and discharging this Indenture. The Owner
Trustee agrees to reimburse and indemnify the Indenture Trustee for any costs
or expenses thereafter reasonably and properly incurred and to compensate the
Indenture Trustee for any services thereafter reasonably and properly rendered
by the Indenture Trustee in connection with this Indenture or the
Certificates.
Upon (or at any time after) payment in full to the Indenture Trustee,
as trust funds, of the principal of and interest on and Make-Whole Premium, if
any, and all other amounts due hereunder and under all Certificates and
provided that there shall then be no other amounts due to the Indenture
Trustee hereunder or under the Participation Agreement or otherwise secured
hereby, the Owner Trustee shall direct the Indenture Trustee to execute and
deliver to or as directed in writing by the Owner Trustee an appropriate
instrument releasing the Aircraft from the Lien of this Indenture and
releasing the Indenture Documents from the assignment thereof hereunder, and
the Indenture Trustee shall execute and deliver such instrument as aforesaid
and, at the Owner Trustee's expense, will execute and deliver such other
instruments or documents as may be reasonably requested by the Owner Trustee
to give effect to such release; provided, however, that this Indenture and the
trusts created hereby shall terminate earlier and this Indenture shall be of
no further force or effect upon any sale or other final disposition by the
Indenture Trustee of all property forming a part of the Trust Indenture Estate
and the final distribution by the Indenture Trustee of all moneys or other
property or proceeds constituting part of the Trust Indenture Estate in
accordance with the terms hereof. Except as aforesaid otherwise provided, this
Indenture and the trusts created hereby shall continue in full force and
effect in accordance with the terms hereof.
Section 14.02. Application by Indenture Trustee of Funds Deposited
for Payment of Certificates. Subject to Section 14.04 hereof, all moneys
deposited with the Indenture Trustee pursuant to Section 14.01 hereof shall be
held in trust and applied by it to the prompt payment, either directly or
through any Paying Agent, to the Holders of the particular Certificates for
the payment or prepayment of which such moneys have been deposited with the
Indenture Trustee, of all sums due and to become due thereon for principal,
interest and Make-Whole Premium, if any, but such money need not be segregated
from other funds except to the extent required by law.
Section 14.03. Repayment of Moneys Held by Paying Agent. Upon the
satisfaction and discharge of this Indenture all moneys then held by any
Paying Agent under the provisions of this Indenture shall, upon demand of the
Owner Trustee, be repaid to it or paid to the Indenture Trustee and thereupon
such Paying Agent shall be released from all further liability with respect to
such moneys.
Section 14.04. Transfer of Moneys Held by Indenture Trustee and
Paying Agent Unclaimed for Two Years and Eleven Months. Any moneys deposited
with or paid to the Indenture Trustee or any Paying Agent for the payment of
the principal of or interest or Make-Whole Premium on any Certificate and not
applied but remaining unclaimed for two years and eleven months after the date
upon which such principal, interest or Make-Whole Premium shall have become
due and payable, shall, unless otherwise required by mandatory provisions of
applicable escheat or abandoned or unclaimed property law, be paid to the
Owner Trustee (or, if the Trust Agreement shall no longer be in effect, to the
Owner Participant) by the Indenture Trustee or such Paying Agent and the
Holder of such Certificate, as a general unsecured creditor, shall, unless
otherwise required by mandatory provisions of applicable escheat or abandoned
or unclaimed property laws, thereafter look only to the Owner Trustee (or the
Owner Participant) for any payment which such Holder may be entitled to
collect, and all liability of the Indenture Trustee, or any Paying Agent with
respect to such moneys shall thereupon cease.
ARTICLE XV
MISCELLANEOUS
Section 15.01. Capacity in Which Acting. Each of SSB (or its
permitted successors or assigns) and the Indenture Trustee acts hereunder not
in its individual capacity but solely as trustee except as expressly provided
herein and in the other Operative Documents, and, in the case of SSB (or its
permitted successors or assigns), in the Trust Agreement.
Section 15.02. No Legal Title to Trust Indenture Estate in Holders.
No Holder shall have legal title to any part of the Trust Indenture Estate.
No transfer, by operation of law or otherwise, of any Certificate or other
right, title and interest of any Holder in and to the Trust Indenture Estate
or hereunder shall operate to terminate this Indenture or entitle such Holder
or any successor or transferee of such Holder to an accounting or to the
transfer to it of legal title to any part of the Trust Indenture Estate.
Section 15.03. Sale of Trust Indenture Estate by Indenture Trustee is
Binding. Any sale or other conveyance of all or any part of the Trust
Indenture Estate by the Indenture Trustee made pursuant to the terms of this
Indenture or of the Lease shall bind the Lessee, the Owner Trustee, the
Holders and the Owner Participant and shall be effective to transfer or convey
all right, title and interest of the Indenture Trustee, the Owner Trustee, the
Owner Participant and such Holders therein and thereto. No purchaser or other
grantee shall be required to inquire as to the authorization, necessity,
expediency or regularity of such sale or conveyance or as to the application
of any sale or other proceeds with respect thereto by the Indenture Trustee.
Section 15.04. Indenture for Benefit of Owner Trustee, Indenture
Trustee, Owner Participant, Holders and Liquidity Providers. Nothing in this
Indenture, whether express or implied, shall be construed to give to any
person other than SSB, the Owner Trustee, the Lessee, the Indenture Trustee,
as trustee and in its individual capacity, the Owner Participant, each
Liquidity Provider and the Holders any legal or equitable right, remedy or
claim under or in respect of this Indenture. Upon termination of this
Indenture pursuant to Article XIV hereof, the Indenture Trustee in connection
with the satisfaction of the Indenture shall return to the Owner Trustee all
property (and related documents and instruments) constituting or evidencing
the Trust Indenture Estate.
Section 15.05. No Action Contrary to the Lessee's Rights Under the
Lease. Notwithstanding any of the provisions of this Indenture or the Trust
Agreement to the contrary, so long as no Event of Default shall have occurred
and be continuing, neither the Indenture Trustee nor the Owner Trustee will
take any affirmative acts that interfere with the peaceful and quiet
possession and enjoyment of the Aircraft by the Lessee.
Section 15.06. Notices. Unless otherwise expressly specified or
permitted by the terms hereof, all notices, requests, demands, authorizations,
directions, consents, waivers or documents provided or permitted by this
Indenture to be made, given, furnished or filed shall be in writing, mailed by
certified mail, postage prepaid, or by confirmed telecopy, and (a) if to the
Owner Trustee, addressed to it c/o State Street Bank and Trust Company, Two
International Place, 4th Floor, Boston, Massachusetts 02110 (telephone: (617)
664-5526, facsimile: (617) 664-5371), Attention: Corporate Trust Department
(with a copy to the Owner Participant at the address provided for notice
pursuant to Section 14.01 of the Participation Agreement), (b) if personally
delivered to the Indenture Trustee, addressed to it at its office at 79 South
Main Street, Salt Lake City, Utah 84111 (telephone: (801) 246-5630, facsimile:
(801) 246-5053), Attention: Corporate Trust Department or (c) if to the Owner
Participant, a Liquidity Provider or the Lessee, addressed to such party at
such address as such party shall have furnished by notice to the Owner Trustee
and the Indenture Trustee, or, until an address is so furnished, addressed to
the address of such party if any, set forth in Section 14.01 of the
Participation Agreement. Any party hereto may change the address to which
notices to such party will be sent by giving notice of such change to the
other parties to this Indenture.
Where this Indenture provides for notice to Holders, such notice
shall be sufficiently given (unless otherwise expressly provided herein) if in
writing and mailed, first-class postage prepaid, to each Holder entitled
thereto, at such Holder's last address as it appears in the Register. In any
case where notice to Holders is given by mail, neither the failure to mail
such notice, nor any defect in any notice so mailed, to any particular Holder
shall affect the sufficiency of such notice with respect to other Holders.
Where this Indenture provides for notice in any manner, such notice may be
waived in writing by the person entitled to receive such notice, either before
or after the event, and such waiver shall be the equivalent of such notice.
Waivers of notice by Holders shall be filed with the Indenture Trustee, but
such filing shall not be a condition precedent to the validity of any action
taken in reliance upon such waiver.
In case, by reason of the suspension of or irregularities in regular
mail service, it shall be impracticable to mail notice to the Owner Trustee
and Holders when such notice is required to be given pursuant to any provision
of this Indenture, then any manner of giving such notice as shall be
satisfactory to the Indenture Trustee shall be deemed to be a sufficient
giving of such notice.
Section 15.07. Officer's Certificates and Opinions of Counsel;
Statements to Be Contained Therein. Upon any application or demand by the
Lessee or the Owner Trustee to the Indenture Trustee to take any action under
any of the provisions of this Indenture, the Lessee or the Owner Trustee, as
the case may be, shall furnish to the Indenture Trustee upon request (a) an
Officer's Certificate stating that all conditions precedent provided for in
this Indenture relating to the proposed action have been complied with and
that the proposed action is in conformity with the requirements of this
Indenture, and (b) 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 demand as to which the furnishing
of such documents is specifically required by any provision of this Indenture
relating to such particular application or demand, no additional certificate
or opinion need be furnished.
Any certificate, statement or opinion of an officer of SSB may be
based, insofar as it relates to legal matters, upon a certificate or opinion
of or representations by counsel, unless such officer knows that the
certificate or opinion or representations with respect to the matters upon
which his certificate, statement or opinion may be based as aforesaid are
erroneous, or in the exercise of reasonable care should know that the same are
erroneous. Any certificate, statement or opinion of counsel may be based,
insofar as it relates to factual matters information with respect to which is
in the possession of the Lessee or SSB, upon the certificate, statement or
opinion of or representations by an officer or officers of the Lessee or SSB,
as the case may be, unless such counsel knows that the certificate, statement
or opinion or representations with respect to the matters upon which his
certificate, statement or opinion may be based as aforesaid are erroneous, or
in the exercise of reasonable care should know that the same are erroneous.
Any certificate, statement or opinion of an officer of the Lessee or
SSB or of counsel thereto may be based, insofar as it relates to accounting
matters, upon a certificate or opinion of or representations by an accountant
or firm of accountants employed by the Lessee or the Owner Trustee, as the
case may be, unless such officer or counsel, as the case may be, knows that
the certificate or opinion or representations with respect to the accounting
matters upon which his certificate, statement or opinion may be based as
aforesaid are erroneous, or in the exercise of reasonable care should know
that the same are erroneous.
Any certificate or opinion of any independent firm of public
accountants filed with the Indenture Trustee shall contain a statement that
such firm is independent.
Section 15.08. Severability. Any provision of this Indenture which
is prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and any
such prohibition or unenforceability in any jurisdiction shall not invalidate
or render unenforceable such provision in any other jurisdiction.
Section 15.09. No Oral Modifications or Continuing Waivers. No
terms or provisions of this Indenture or the Certificates may be changed,
waived, discharged or terminated orally, but only by an instrument in writing
signed by the party or other person against whom enforcement of the change,
waiver, discharge or termination is sought; and any waiver of the terms hereof
or of any Certificate shall be effective only in the specific instance and for
the specific purpose given.
Section 15.10. Successors and Assigns. All covenants and agreements
contained herein shall be binding upon, and inure to the benefit of, each of
the parties hereto and the successors and permitted assigns of each, all as
herein provided. Any request, notice, direction, consent, waiver or other
instrument or action by any Holder shall bind the successors and assigns of
such Holder. This Indenture and the Trust Indenture Estate shall not be
affected by any amendment or supplement to the Trust Agreement or by any other
action taken under or in respect of the Trust Agreement, except that each
reference in this Indenture to the Trust Agreement shall mean the Trust
Agreement as amended and supplemented from time to time to the extent
permitted hereby and thereby.
Section 15.11. Headings. The headings of the various Articles and
Sections herein and in the table of contents hereto are for the convenience of
reference only and shall not define or limit any of the terms or provisions
hereof.
Section 15.12. Normal Commercial Relations. Anything contained in
this Indenture to the contrary notwithstanding, the Owner Participant, the
Indenture Trustee and any Holder, or any bank or other affiliate of any such
party, may conduct any banking or other financial transactions, and have
banking or other commercial relationships, with the Lessee fully to the same
extent as if this Indenture were not in effect, including without limitation
the making of loans or other extensions of credit to the Lessee for any
purpose whatsoever, whether related to any of the transactions contemplated
hereby or otherwise.
Section 15.13. Governing Law; Counterparts. THIS INDENTURE AND
EACH CERTIFICATE SHALL IN ALL RESPECTS BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK, INCLUDING ALL MATTERS OF
CONSTRUCTION, VALIDITY AND PERFORMANCE. This Indenture may be executed by the
parties hereto in separate counterparts, each of which when so executed and
delivered shall be an original, but all such counterparts shall together
constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed this 28th day of May, 1997 by their respective officers
thereunto duly authorized and acknowledge that this Indenture has been made
and delivered in the City of New York, and this Indenture shall be effective
only upon such execution and delivery.
STATE STREET BANK AND TRUST COMPANY
OF CONNECTICUT, NATIONAL ASSOCIATION,
not in its individual capacity,
except as specifically set forth herein
but solely as Owner Trustee
By
------------------------------------
Name: Paul D. Allen
Title: Vice President
FIRST SECURITY BANK,
NATIONAL ASSOCIATION,
not in its individual capacity,
but solely as Indenture Trustee
By
------------------------------------
Name: Greg A. Hawley
Title: Vice President
Exhibit A
to
Trust Indenture and Security Agreement
Indenture and Security Agreement Supplement No. ___
Indenture and Security Agreement Supplement No. ___ (Federal Express
Corporation Trust No. N672FE) dated ________, ____, of STATE STREET BANK AND
TRUST COMPANY OF CONNECTICUT, NATIONAL ASSOCIATION, a national banking
association, not in its individual capacity but solely as owner trustee
(herein called the "Owner Trustee") under the Trust Agreement dated as of May
1, 1997 (the "Trust Agreement") between State Street Bank and Trust Company of
Connecticut, National Association and the Owner Participant named therein.
W I T N E S S E T H :
-------------------
WHEREAS, the Trust Agreement provides for the execution and delivery
of this Indenture and Security Agreement Supplement which shall particularly
describe the Aircraft and any Replacement Airframe or Replacement Engine
included in the property covered by the Trust Agreement.
WHEREAS, the Trust Indenture and Security Agreement (Federal Express
Corporation Trust No. N672FE) dated as of May 1, 1997 (the "Indenture") between
the Owner Trustee and First Security Bank, National Association (herein called
the "Indenture Trustee") provides for the execution and delivery of an
Indenture and Security Agreement Supplement substantially in the form of this
Indenture and Security Agreement Supplement No. __, which Supplement shall
particularly describe the Aircraft included in the Trust Indenture Estate, and
shall specifically mortgage such Aircraft to the Indenture Trustee.
(1)WHEREAS, the Indenture relates to the Aircraft and the Engines
described in the following paragraph and a counterpart of the Indenture is
attached to and made a part of this Indenture and Security Agreement
Supplement No. 1, and this Indenture and Security Agreement Supplement No. 1,
together with such attachment, is being filed for recordation on or promptly
after the date of this Supplement No. 1 with the Federal Aviation
Administration as one document.
- ------------
(1) This recital is to be included only in the first Indenture Supplement.
(2)Whereas, the Indenture and Indenture and Security Agreement
Supplement No. ___ dated _________________, ______ (the Indenture being
attached to and made a part of such Indenture and Security Agreement
Supplement and filed therewith) have been duly recorded pursuant to Subtitle
VII of Title 49 of the United States Code, on ____________, _____, as one
document and have been assigned Conveyance No. _________.
- ------------
(2) This recital is not to be included in the first Indenture Supplement.
NOW, THEREFORE, this Supplement witnesseth, that, to secure the prompt
payment of the principal of and Make-Whole Premium, if any, and interest on,
and all other amounts due with respect to, all Outstanding Certificates under
the Indenture and all other amounts due hereunder and the performance and
observance by the Owner Trustee of all the agreements, covenants and
provisions for the benefit of the Holders contained in the Indenture, in the
Lease, in the Participation Agreement and the Certificates, and the prompt
payment of any and all amounts from time to time owing under the Participation
Agreement by the Owner Trustee, the Owner Participant or the Lessee to the
Holders and for the uses and purposes and subject to the terms and provisions
of the Indenture and the Certificates, and in consideration of the premises
and of the covenants contained in the Indenture, and of the purchase of the
Certificates by the Holders, and of the sum of $1 paid to the Owner Trustee by
the Indenture Trustee at or before the delivery of the Indenture, the receipt
of which is hereby acknowledged, the Owner Trustee has granted, bargained,
sold, assigned, transferred, conveyed, mortgaged, pledged, granted a security
interest in, and confirmed, and does hereby grant, bargain, sell, assign,
transfer, convey, mortgage, pledge, grant a security interest in, and confirm,
unto the Indenture Trustee, its successors and assigns, in trust for the equal
and ratable security and benefit of the Holders, in the trust created by the
Indenture, and subject to all of the terms, conditions, provisions and
limitations set forth in the Indenture, a first priority security interest in
and mortgage lien on all estate, right, title and interest of the Owner Trustee
in, to and under the following described property:
Airframe
One (1) Airframe identified as follows:
FAA Manufacturer's
Registration Serial
Manufacturer Model Number Number
- ------------ ----- ------------ --------------
together with all appliances, equipment, instruments and accessories
(including, without limitation, radio and radar) from time to time belonging
thereto, owned by the Owner Trustee and installed in or appurtenant to said
aircraft.
AIRCRAFT ENGINES
Two (2) aircraft engines, each such engine having 750 or more rated takeoff
horsepower or the equivalent thereof, identified as follows:
Manufacturer's
Serial
Manufacturer Model Number
- ------------ ----- --------------
together with all equipment and accessories belonging thereto, by whomsoever
manufactured, owned by the Owner Trustee and installed in or appurtenant to
said aircraft engines.
Together with all substitutions, replacements and renewals of the
property described above, and all property which shall hereafter become
physically attached to or incorporated in the property described above,
whether the same are now owned by the Owner Trustee or shall hereafter be
acquired by it.
As further security for the obligations referred to above and secured
by the Indenture and hereby, the Owner Trustee has granted, bargained, sold,
assigned, transferred, conveyed, mortgaged, pledged and confirmed, and does
hereby grant, bargain, sell, assign, transfer, convey, mortgage, pledge and
confirm, unto the Indenture Trustee, its successors and assigns, for the
security and benefit of the Holders, in the trust created by the Indenture,
and subject to all of the terms, conditions, provisions and limitations set
forth in the Indenture, all of the estate, right, title and interest of the
Owner Trustee in, to and under the Lease Supplement (other than Excepted
Payments, if any) covering the property described above.
TO HAVE AND TO HOLD all and singular the aforesaid property unto the
Indenture Trustee, its successors and assigns, for the benefit and security of
the Holders for the uses and purposes and subject to the terms and provisions
set forth in the Indenture.
This Supplement shall be construed as supplemental to the Indenture
and shall form a part thereof, and the Indenture is hereby incorporated by
reference herein and is hereby ratified, approved and confirmed.
This Supplement is being delivered in the State of New York.
AND, FURTHER, the Owner Trustee hereby acknowledges that the
Aircraft/Engines referred to in this Supplement and the aforesaid Lease
Supplement has been delivered to the Owner Trustee and is included in the
property of the Owner Trustee and covered by all the terms and conditions of
the Trust Agreement, subject to the Lien of the Indenture.
IN WITNESS WHEREOF, the Owner Trustee has caused this Supplement to
be duly executed as of the date first written above by one of its officers
thereunto duly authorized.
STATE STREET BANK AND TRUST COMPANY
OF CONNECTICUT, NATIONAL ASSOCIATION,
not in its individual capacity,
except as specifically set forth herein
but solely as Owner Trustee
By
------------------------------------
Name: Paul D. Allen
Title: Vice President
Exhibit B
to
Trust Indenture and Security Agreement
[Form of Certificate]
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY
NOT BE SOLD OR OFFERED FOR SALE IN CONTRAVENTION OF SAID ACT
No. ______ $_____________
EQUIPMENT TRUST CERTIFICATE
(Federal Express Corporation Trust No. N672FE)
STATE STREET BANK AND TRUST COMPANY OF CONNECTICUT,
NATIONAL ASSOCIATION
not in its individual capacity but solely as
OWNER TRUSTEE UNDER TRUST AGREEMENT
(Federal Express Corporation Trust No. N672FE)
dated as of May 1, 1997
SERIES ___
Interest Rate Maturity
- ------------- --------
State Street Bank and Trust Company of Connecticut, National
Association, a national banking association, not in its individual capacity
but solely as Owner Trustee (herein in such capacity called the "Owner
Trustee") under that certain Trust Agreement (Federal Express Corporation
Trust No. N672FE) dated as of May 1, 1997, between the Owner Participant named
therein and State Street Bank and Trust Company of Connecticut, National
Association (herein as such Trust Agreement may be amended or supplemented
from time to time called the "Trust Agreement"), hereby promises to pay to
FIRST SECURITY BANK, NATIONAL ASSOCIATION, as Subordination Agent, or its
registered assigns, the principal sum of ________________ _______________
Dollars, payable as set forth below for the Maturity specified above, in such
coin or currency of the United States of America as at the time of payment
shall be legal tender for the payment of public and private debts, and to pay
interest on the principal outstanding from time to time, semiannually on each
January 15 and July 15, on said principal sum in like coin or currency at the
rate per annum set forth above from the January 15 or the July 15, as the case
may be, next preceding the date of this Certificate to which interest on the
Certificates has been paid or duly provided for, unless the date hereof is a
date to which interest on the Certificates has been paid or duly provided for,
in which case from the date of this Certificate. Notwithstanding the
foregoing, if the date hereof is after any January 15 or July 15 and before the
following January 15 or July 15, as the case may be, this Certificate shall
bear interest from such January 15 or July 15; provided that, if the Owner
Trustee shall default in the payment of interest due on such January 15 or
July 15, then this Certificate shall bear interest from the next preceding
January 15 or July 15 to which interest on this Certificate has been paid or
duly provided for. The interest so payable on any January 15 or July 15 will,
except as otherwise provided in the Indenture referred to below, be paid to
the person in whose name this Certificate is registered at the close of
business on the January 15 or July 15 preceding such January 15 or July 15,
whether or not such day is a Business Day.
This Certificate shall bear interest at the Past Due Rate on any
principal hereof and on any other amount payable hereunder or under the
Indenture which shall not be paid in full when due (whether at stated
maturity, by acceleration, by mandatory prepayment or otherwise), for the
period from and including the date thereof to but excluding the date the same
is paid in full, payable from time to time on demand of the Indenture Trustee.
Principal and interest and other amounts due hereunder shall be
payable at the office or agency of First Security Bank, National Association
(the "Indenture Trustee") maintained for such purpose in immediately available
funds prior to 10:30 A.M. (New York time) on the due date thereof and the
Indenture Trustee shall remit all such amounts received by it to the Holders
at such account or accounts at such financial institution or institutions as
the Holders shall have designated to the Indenture Trustee in writing, in
immediately available funds, such payment to be made if the payment was
received prior to 10:30 A.M. New York time by the Indenture Trustee on any
Business Day, by 12:00 noon New York time on such Business Day; otherwise, the
Indenture Trustee shall make payment promptly, but not later than 11:00 A.M.
New York time on the next succeeding Business Day; provided that, at the
option of the Indenture Trustee or its Paying Agent, interest may be paid by
mailing a check therefor payable to or upon the written order of the
registered holder entitled thereto at his last address as it appears on the
Register. If any amount payable under this Certificate, or under the
Indenture, falls due on a day that is not a Business Day, then such sum shall
be payable on the next succeeding Business Day, without (provided that payment
is made on such next succeeding Business Day) additional interest thereon for
the period of such extension.
State Street Bank and Trust Company of Connecticut, National
Association and First Security Bank, National Association are not acting
individually hereunder, but solely as Owner Trustee and Indenture Trustee,
respectively.
Any Person, other than the Subordination Agent, who is acquiring the
Certificates will be deemed to represent and warrant that (i) no assets of an
employee benefit plan subject to Title I of ERISA or an individual retirement
account or plan subject to Section 4975 of the Code, or any trust established
under any such plan or account, have been used to acquire or hold any of the
Certificates, or (ii) that one or more administrative or statutory exemptions
from the prohibited transaction rules under Section 406 of ERISA and Section
4975 of the Code applies to its purchase and holding of the Certificates such
that its purchase and holding of the Certificates will not result in a
non-exempt prohibited transaction under Section 406 of ERISA and Section 4975
of the Code.
This Certificate is one of a duly authorized issue of Certificates
issued and to be issued under the Trust Indenture and Security Agreement
(Federal Express Corporation Trust No. N672FE) dated as of May 1, 1997 (herein
as amended, supplemented or modified from time to time called the "Indenture")
between the Owner Trustee and the Indenture Trustee, designated as Equipment
Trust Certificates (Federal Express Corporation Trust No. N672FE) limited in
aggregate initial principal amount to $61,984,000 consisting of the following
aggregate principal amounts of Certificates with the interest rates per annum
and Maturities shown:
Initial
Aggregate
Principal
Series Maturity Amount Interest Rate
------ -------- ----------- -------------
A January 15, 2018 $33,374,000 7.50%
B January 15, 2018 $12,515,000 7.52%
C January 15, 2014 $16,095,000 7.65%
Reference is made to the Indenture and all supplements and amendments
thereto (a copy of which is on file with the Indenture Trustee at its
principal corporate trust office) for a more complete statement of the terms
and provisions thereof, including a statement of the properties conveyed,
pledged and assigned thereby, the nature and extent of the security, the
respective rights of the Owner Trustee, the Owner Participant, the Lessee, the
Indenture Trustee and the Holders, and the terms upon which the Certificates
are, and are to be, executed and delivered, to all of which terms and
conditions in the Indenture each Holder hereof agrees by its acceptance of
this Certificate.
Capitalized terms not otherwise defined herein shall have the
meanings given to them in the Indenture.
The principal amounts of the Certificates are payable as follows. The
Certificates are subject to redemption in part, pro rata (based on the face
amount thereof), in each case through mandatory sinking fund redemptions
providing for the redemption on the Sinking Fund Redemption Dates of the
aggregate principal amounts set forth below, together with interest accrued
thereon to the applicable Sinking Fund Redemption Date, but without Make-Whole
Premium.
Principal Amount
Series A Series B Series C
Certificates Certificates Certificates
Sinking Fund with a Maturity of with a Maturity of with a Maturity of
Redemption Date January 15, 2018 January 15, 2018 January 15, 2014
- ---------------- ------------------ ------------------ ------------------
July 15, 1997 0 0 0
January 15, 1998 192,704 250,055 0
July 15, 1998 474,776 0 0
January 15, 1999 350,565 250,305 75,480
July 15, 1999 316,915 0 0
January 15, 2000 339,643 250,305 333,740
July 15, 2000 327,837 0 0
January 15, 2001 408,040 250,305 333,740
July 15, 2001 259,440 0 0
January 15, 2002 581,596 250,305 333,740
July 15, 2002 85,884 0 0
January 15, 2003 667,480 250,305 530,847
July 15, 2003 0 0 0
January 15, 2004 667,480 250,305 721,692
July 15, 2004 0 0 0
January 15, 2005 667,480 250,305 839,540
July 15, 2005 0 0 0
January 15, 2006 667,480 250,305 808,994
July 15, 2006 0 0 0
January 15, 2007 667,480 250,305 3,739,396
July 15, 2007 0 0 0
January 15, 2008 667,480 250,305 652,598
July 15, 2008 0 0 0
January 15, 2009 667,480 250,305 1,528,250
July 15, 2009 0 0 0
January 15, 2010 667,480 336,300 1,665,821
July 15, 2010 0 0 0
January 15, 2011 667,480 2,884,537 0
July 15, 2011 0 0 0
January 15, 2012 667,480 3,168,600 0
July 15, 2012 0 0 0
January 15, 2013 3,890,457 1,009,716 0
July 15, 2013 0 0 0
January 15, 2014 754,478 0 4,531,162
July 15, 2014 0 0 0
January 15, 2015 5,701,038 0 0
July 15, 2015 0 0 0
January 15, 2016 6,145,275 0 0
July 15, 2016 0 0 0
January 15, 2017 6,624,128 0 0
July 15, 2017 0 0 0
January 15, 2018 246,424 2,112,437 0
Except as expressly provided in the Indenture, all payments of
principal, Make-Whole Premium, if any, and interest and other amounts to be
made to the Holder hereof by or at the behest of the Owner Trustee hereunder
or under the Indenture shall be made only from the income and proceeds from
the Lessor's Estate to the extent included in the Trust Indenture Estate and
only to the extent that the Owner Trustee shall have sufficient income or
proceeds from the Lessor's Estate to the extent included in the Trust
Indenture Estate to enable the Indenture Trustee to make such distributions in
accordance with the terms of the Indenture; provided that under the Lease, the
Lessee is obligated to pay or cause to be paid, to the extent such payments
are not required to be made from the assets subject to the Lien of this
Indenture or the income and proceeds received by the Indenture Trustee
therefrom, any net loss arising from the investment of funds held by the
Indenture Trustee which but for an Event of Default would be payable to
Lessee, and each Holder hereof, by its acceptance of this Certificate, agrees
that it will (except as aforesaid) look solely to the income and proceeds from
the Trust Indenture Estate to the extent available for distribution to the
Holder hereof as provided above and that neither the Owner Participant, the
Owner Trustee, State Street Bank and Trust Company of Connecticut, National
Association nor the Indenture Trustee is personally liable to the Holder
hereof for any amounts payable or any liability under this Certificate or
under the Indenture, except as expressly provided in the Indenture, in the
case of State Street Bank and Trust Company of Connecticut, National
Association, the Owner Trustee and the Indenture Trustee.
The Certificates are subject to prepayment in the following
circumstances at the price determined as set forth below.
(i) If an Event of Loss occurs with respect to the Airframe or with
respect to the Airframe and the Engines or engines then installed on the
Airframe (unless pursuant to Section 11.03 of the Lease and Section 9.08 of
the Indenture replacement equipment is substituted therefor).
(ii) If the Lessee, pursuant to Section 4.02(a) of the Lease, gives
notice of purchase of the Aircraft (and the Lessee shall not have revoked
such notice or effected an assumption of the Certificates as provided in
Section 2.12 of the Indenture).
(iii) If the Owner Participant or the Owner Trustee on behalf of the
Owner Participant gives notice of prepayment to the Indenture Trustee
pursuant to Section 8.02 of the Indenture.
(iv) If the Lessee, pursuant to Section 10.01 of the Lease, gives
notice of a voluntary termination for obsolescence or surplus, but subject
to Section 6.02(c) of Indenture.
(v) Pursuant to Section 15.01 of the Participation Agreement in
connection with a Refinancing of the Certificates.
(vi) As contemplated by Section 2.16 of the Indenture and Section
3.05(b) of the Participation Agreement if the Delivery Date has not
occurred on or prior to the Cut-Off Date.
(vii) At the option of the Owner Trustee with the prior written
consent of the Lessee and the Owner Participant upon not less than 25 days'
prior written notice.
In the case of a prepayment of the Certificates pursuant to clauses
(ii), (iv) and (v) above, the Lessee, in accordance with and subject to the
terms (including timing of notice) of Section 4.02(a) or 10.01 of the Lease or
Article 15 of the Participation Agreement, as the case may be, shall give
irrevocable (subject to Section 6.02(c) of the Indenture) written notice to
the Owner Trustee and the Indenture Trustee and to the Holders of all of the
Certificates specifying the Business Day on which the Owner Trustee is
directed to prepay the Certificates. In the case of a prepayment pursuant to
clause (i) above, the Certificates shall be prepaid on the Loss Payment Date
(as defined in Section 11.02 of the Lease). In the case of a prepayment
pursuant to clause (iii) above, the Certificates shall be prepaid on the date
designated in the notice of prepayment required by Section 8.02 of the
Indenture. In the case of a prepayment of the Certificates pursuant to
clauses (ii) and (iv) above, the Certificates shall be prepaid in full on the
Termination Date. In the case of a prepayment of the Certificates pursuant to
clause (v) above, the Certificates shall be prepaid on the effective date of
the Refinancing. In the case of a prepayment of the Certificates pursuant to
clause (vi) above, the Certificates shall be prepaid on the 15th day following
the Cut-Off Date. In the case of a prepayment of the Certificates pursuant to
clause (vii) above, the Certificates shall be prepaid on the date designated
in the notice referred to therein. The day on which the Certificates are to
be prepaid is herein referred to as the "Prepayment Date". On or prior to the
Prepayment Date, immediately available funds shall be deposited with the
Indenture Trustee in an amount in respect of the Certificates equal to:
(1) (i) if such prepayment is made under any provision of Section
6.02 of the Indenture on or after the applicable Premium Termination Date,
or (ii) if such prepayment is made prior to the applicable Premium
Termination Date pursuant to clause (i), (iii) (if clause (i) of the first
sentence of Section 8.02(a) of the Indenture is applicable) or (vi) above,
the sum of (A) the aggregate principal amount of such Certificates then
Outstanding, (B) accrued interest on the Certificates to the Prepayment
Date and (C) all other aggregate sums due the Indenture Trustee under the
Indenture or under the Participation Agreement or the Lease, but excluding
any Make-Whole Premium or other premium or penalty, or
(2) if such prepayment is made prior to the applicable Premium
Termination Date pursuant to clause (ii), (iii) (if clause (ii) of the
first sentence of Section 8.02(a) of the Indenture is applicable), (iv),
(v) or (vii) above, the sum of the amounts specified in clauses (A), (B)
and (C) of the preceding clause (1) plus any Make-Whole Premium payable in
respect of all Certificates with respect to which the Premium Termination
Date therefor has not occurred
(the aggregate amount required to be paid pursuant to this sentence being
herein referred to as the "Prepayment Price").
If, in accordance with and subject to the satisfaction of the
conditions set forth in Section 7.11 of the Participation Agreement, the
Lessee shall assume all of the obligations of the Owner Trustee hereunder,
under the Certificates and all other Operative Agreements, the Owner
Participant and the Owner Trustee shall (except for prior acts) be released
and discharged from any further obligations hereunder and under the
Certificates and all other Operative Agreements (except any obligations that
have accrued prior to such assumption).
If an Indenture Event of Default under the Indenture shall occur and
be continuing, the principal of the Certificates may be declared due and
payable in the manner and with the effect provided in the Indenture. The
Indenture provides that in certain events such declaration and its
consequences may be waived the Majority in Interest of Holders. Any such
consent or waiver shall be conclusive and binding upon the Holder of this
Certificate and upon all future Holders and owners of this Certificate and any
Certificate that may be issued in exchange or substitution therefor, whether or
not any notation thereof is made upon this Certificate or such other
Certificates. Moreover, if, and only if, an Event of Default shall occur, the
Indenture Trustee may declare the Lease to be in default, and may, to the
exclusion of the Owner Trustee, exercise one or more of the remedies of the
Owner Trustee provided in the Lease.
The Owner Trustee or the Owner Participant may cure a default by the
Lessee under the Lease arising from the failure of the Lessee to make any
Basic Rent payments under the Lease, but the Owner Trustee and the Owner
Participant, collectively, may not cure more than three consecutive such
failures or more than six such failures in total. The Owner Trustee or the
Owner Participant may cure any other default by the Lessee in the performance
of its obligations under the Lease.
(A) If an Event of Default shall have occurred and be continuing for
more than 180 days or the Certificates shall have been accelerated or (B) an
Event of Default shall have occurred and be continuing for not more than 180
days and the Certificates shall not have been accelerated, the Owner
Participant (or the Owner Trustee on behalf of the Owner Participant) may:
(1) direct the Owner Trustee to cause the prepayment of all the
Outstanding Certificates by notifying the Indenture Trustee of such
election and depositing the sum of amounts contemplated by paragraph
"first" under Section 5.03 of the Indenture and the aggregate
Prepayment Price of all such Certificates with the Indenture Trustee
for distribution to the Holders; or
(2) purchase all of the Outstanding Certificates by paying to the
Indenture Trustee an amount equal to the aggregate unpaid principal
amount of all Outstanding Certificates, plus accrued interest on such
amount to the date of purchase and if such purchase occurs prior to
the Premium Termination Date for such Outstanding Certificate (in the
case of a purchase pursuant to clause (ii) of the first sentence of
Section 8.02(a) of the Indenture but not in the case of clause (i) of
Section 8.02(a) of the Indenture) any Make-Whole Premium applicable
to each Outstanding Certificate, plus all other sums due any Holder
or the Indenture Trustee under the Indenture, the Participation
Agreement or the Lease.
The right of the Holder hereof to institute an action for any remedy
under the Indenture is subject to certain restrictions specified in the
Indenture, except that the right of the Holder of this Certificate to receive
payment of the principal of and interest and Make-Whole Premium, if any, on
this Certificate on or after the respective due dates, or to institute suit
for the enforcement of any such payment, shall not be impaired or affected
without the consent of such Holder.
The Certificates are issuable only as registered Certificates without
coupons in denominations of $1,000 and integral multiples thereof. So long as
any of the Certificates remain Outstanding, the Indenture Trustee will
maintain an office or agency where the Certificates may be presented for
payment and a facility or agency in New York, New York where the Certificates
may be presented for registration of transfer and for exchange as provided in
the Indenture. As provided in the Indenture and subject to certain
limitations therein, this Certificate is transferable, and upon surrender of
this Certificate for registration of transfer at the principal corporate trust
office of the Indenture Trustee, or at the office or agency maintained for such
purposes, duly endorsed by, or accompanied by a written instrument of transfer
in form satisfactory to the Owner Trustee and the Indenture Trustee duly
executed by, the Holder or his attorney duly authorized in writing, one or
more new Certificates of the same Series and Maturity and interest rate and of
authorized denominations and for the same aggregate principal amount will be
issued to the designated transferee or transferees.
As provided in the Indenture and subject to certain limitations
therein, the Certificates are exchangeable for an equal aggregate principal
amount of Certificates of the same Series and Maturity and interest rate and
of authorized denominations, as requested by the Holder surrendering the same,
upon presentation thereof for such purpose at the principal corporate trust
office of the Indenture Trustee, or at an office or agency maintained for such
purpose.
No service charge shall be levied for any such registration of
transfer or exchange, but the Indenture Trustee may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection
therewith.
Prior to the due presentment for registration of transfer of this
Certificate, the Owner Trustee, the Indenture Trustee, any agent of the Owner
Trustee or the Indenture Trustee, the Paying Agent, if any, the Registrar and
the Lessee shall deem and treat the person in whose name this Certificate is
registered as the absolute owner hereof for all purposes whether or not this
Certificate is overdue, and neither the Owner Trustee, the Indenture Trustee
(nor any agent of the Owner Trustee or the Indenture Trustee), nor the Paying
Agent, if any, the Registrar nor the Lessee shall be affected by notice to the
contrary.
The indebtedness evidenced by this Certificate is, to the extent and
in the manner provided in the Indenture, subordinate and subject in right of
payment to the prior payment in full of the Secured Obligations (as defined in
the Indenture) in respect of [Series A Certificate](1), [Series A and Series B
Certificates](2) and this Certificate is issued subject to such provisions.
The Holder of this Certificate, by accepting the same, (a) agrees to and shall
be bound by such provisions, (b) authorizes and directs the Indenture Trustee
on such Holder's behalf to take such action as may be necessary or appropriate
to effectuate the subordination as provided in the Indenture and (c) appoints
the Indenture Trustee such Holder's attorney-in-fact for such purpose.(*)
- ------------
(1) To be inserted in the case of a Series B Certificate.
(2) To be inserted in the case of a Series C Certificate.
(*) To be inserted for each Certificate other than any Series A Certificate.
As provided in the Indenture, the Indenture and the Certificates
shall be construed in accordance with and governed by the laws of the State of
New York.
This Certificate shall not be secured by or be entitled to any
benefit under the Indenture or be valid or obligatory for any purpose unless
authenticated by the Indenture Trustee as evidenced by the manual signature of
one of its authorized officers on the certificate below.
IN WITNESS WHEREOF, the Owner Trustee has caused this Equipment Trust
Certificate (Federal Express Corporation Trust No. N672FE) to be duly executed
in its corporate name by its officer thereunto duly authorized.
Dated: May ___, 1997 STATE STREET BANK AND TRUST COMPANY OF
CONNECTICUT, NATIONAL ASSOCIATION,
not in its individual capacity,
but solely as Owner Trustee
By
------------------------------------
Name: Paul D. Allen
Title: Vice President
[FORM OF INDENTURE TRUSTEE'S CERTIFICATE OF AUTHENTICATION]
This is one of the Equipment Trust Certificates (Federal Express
Corporation Trust No. N672FE) referred to in the within mentioned Indenture.
Dated: May ___, 1997 FIRST SECURITY BANK, NATIONAL ASSOCIATION,
not in its individual capacity,
but solely as Indenture Trustee
By
------------------------------------
Name: Greg A. Hawley
Title: Vice President
SCHEDULE I
[Reserved]
SCHEDULE II
DEFINITIONS
(FEDERAL EXPRESS CORPORATION TRUST NO. N672FE)
GENERAL PROVISIONS
The following terms shall have the following meanings for all
purposes of the Operative Agreements (other than the Pass Through Agreement,
the Series Supplements, the Intercreditor Agreement and the Liquidity
Facilities) referred to below, unless otherwise defined in an Operative
Agreement or the context thereof shall otherwise require. In the case of any
conflict between the provisions of this Schedule and the provisions of any
Operative Agreement, the provisions of such Operative Agreement shall control
the construction of such Operative Agreement.
Unless the context otherwise requires, (i) references to agreements
shall be deemed to mean and include such agreements as amended and
supplemented from time to time, and (ii) references to parties to agreements
shall be deemed to include the successors and permitted assigns of such
parties.
DEFINED TERMS:
Additional Insured. As defined in Article 13 of the Lease.
Aeronautics Authority. As appropriate, the Federal Aviation
Administration and/or the Administrator of the Federal Aviation
Administration, any successor to the former United States Civil Aeronautics
Board, or any Person, governmental department, bureau, commission or agency
located in the United States succeeding to the functions of any of the
foregoing.
Affidavits. The affidavits of citizenship of the Owner Trustee and
the Owner Participant.
Affiliate. With respect to any Person, any other Person directly or
indirectly controlling, controlled by or under common control with such
Person. For the purposes of this definition, "control" (including "controlled
by" and "under common control with") shall mean the power, directly or
indirectly, to direct or cause the direction of the management and policies of
such Person whether through the ownership of voting securities or by contract
or otherwise. In no event shall the Owner Trustee or the Lessor be deemed an
Affiliate of the Owner Participant.
After-Tax Basis. A basis such that any payment to be received by a
Person shall be supplemented by a further payment to such Person so that the
sum of the two payments, after deduction of all Taxes resulting from the
receipt or accrual of such payments, shall be equal to the payment to be
received. In the case of amounts payable to the Lessor, the Owner Participant,
or any corporate Affiliate of the Owner Participant, it shall be presumed that
such Person is at all times subject to Federal income tax at the maximum
marginal rate generally applicable to corporations from time to time and
actual state, local and foreign income taxes.
Air Carrier. Any U.S. Air Carrier and any "foreign air carrier" (as
defined in the Transportation Code) as to which there is in force a permit
granted under Section 41302 of the Transportation Code.
Airbus Guaranty. The Guaranty to be dated the Delivery Date executed
by the Manufacturer and guaranteeing AVSA's Warranty Bill of Sale.
Aircraft. The Airframe to be sold by AVSA to the Owner Trustee as
provided in the Participation Agreement and to be leased under the Lease (or
any permitted substitute airframe thereunder) together with two Engines
(whether either is an initial Engine or a Replacement Engine) whether or not
any of such initial or Replacement Engines may from time to time be installed
on such Airframe or may be installed on any other airframe or on any other
aircraft, including any aircraft substituted pursuant to Section 11.03 of the
Lease. Prior to delivery of the initial Lease Supplement, references in the
Operative Agreements (including Section 3.05 of the Participation Agreement)
to Aircraft shall mean the Airbus A300F4-605R airframe bearing FAA
Registration Number N672FE and Manufacturer's serial number 779, together with
two General Electric CF6-80C2-A5F engines.
Airframe. The Airbus A300F4-605R aircraft (excluding the Engines or
engines from time to time installed thereon) to be leased by the Lessor to the
Lessee pursuant to the Lease and the initial Lease Supplement and having the
United States FAA Registration Number initially and manufacturer's serial
number specified in the initial Lease Supplement, including (i) all Parts in
respect thereof and (ii) any Replacement Airframe which may be substituted
pursuant to Section 11.03 of the Lease.
Ancillary Agreement. Any written agreement of the Lessee to which the
Lessor is a party or to which the Lessor has consented in writing entered into
on or prior to the Delivery Date or any date thereafter in connection with the
transactions contemplated by the Operative Agreements, as such agreement may
be amended and supplemented from time to time with the consent of the Lessor
and delivered to the Owner Trustee, the Indenture Trustee, the Pass Through
Trustee, the Subordination Agent, each Liquidity Provider and the Owner
Participant.
Ancillary Agreement I. The Ancillary Agreement I (Federal Express
Corporation Trust No. N672FE), dated the Certificate Closing Date, among the
Lessee, the Owner Trustee, not in its individual capacity, but solely as Owner
Trustee, the Owner Participant and the Indenture Trustee not in its individual
capacity, but solely as Indenture Trustee, as originally executed or as
amended, modified or supplemented with the consent of all the parties thereto.
Ancillary Agreement II. The Ancillary Agreement II (Federal Express
Corporation Trust No. N672FE), dated the Certificate Closing Date, among the
Lessee, the Owner Trustee, not in its individual capacity, but solely as Owner
Trustee, the Owner Participant and the Indenture Trustee not in its individual
capacity, but solely as Indenture Trustee, as originally executed or as
amended, modified or supplemented with the consent of all the parties thereto.
Application. The application for registration of the Aircraft with
the FAA in the name of the Owner Trustee.
Appraisal. The report prepared by BK Associates, Inc. and to be
delivered to the Owner Participant (with an abbreviated report to the Lessee)
on the Delivery Date pursuant to Section 4.02(h) of the Participation
Agreement.
Assignment and Assumption Agreement. Any agreement delivered in
compliance with Section 7.03(d) of the Participation Agreement.
Average Life Date. For any Certificate, the date which follows the
prepayment date by a period equal to the Remaining Weighted Average Life of
such Certificate.
AVSA. AVSA S.A.R.L., a societe a responsabilite limitee, organized
and existing under the laws of France.
AVSA Consent and Agreement. The Consent and Agreement dated as of
May 1, 1997, executed by AVSA.
AVSA's FAA Bill of Sale. The bill of sale for the Airframe on AC
Form 8050-2, or such other form as may be approved by the Aeronautics
Authority, executed by AVSA in favor of the Owner Trustee and to be dated the
Delivery Date.
AVSA's Warranty Bill of Sale. The full warranty bill of sale
covering the Aircraft (and specifically referring to each Engine) executed by
AVSA as owner of the Aircraft in favor of the Owner Trustee and to be dated
the Delivery Date.
Bankruptcy Code. The Federal Bankruptcy Code of 1978, as amended, and
any successor thereto.
Bankruptcy Default. An event specified in Section 16.01(e), (f) or
(g) of the Lease which either does or, with the giving of notice or lapse of
time or both, would constitute an Event of Default.
Basic Rent. The aggregate periodic rent payable for the Aircraft
throughout the Basic Term pursuant to Section 3.02 of the Lease, adjusted
pursuant to Article 3 of the Lease.
Basic Term. The period commencing at the beginning of the day on the
Delivery Date and ending at the end of the day on November 19, 2020, or such
earlier date on which the Lease shall be terminated as provided therein.
Beneficial Interest. The interest of the Owner Participant under the
Trust Agreement.
Business Day. Any day on which commercial banks are not authorized or
required to close in New York, New York, Memphis, Tennessee and the city in the
United States in which the office or agency is maintained by the Pass Through
Trustee for the payment of the Pass Through Certificates, and after the Lien
of the Indenture is discharged, Boston, Massachusetts.
Certificate Closing Date. The date of the closing with respect to the
purchase of Certificates by the Pass Through Trustee contemplated by Section
2.01(b) of the Participation Agreement.
Certificates. The Equipment Trust Certificates (Federal Express
Corporation Trust No. N672FE), issued by the Owner Trustee pursuant to the
Indenture and any certificate issued in exchange therefor or replacement
thereof pursuant to the Indenture.
Change in Tax Law. Any change to the Code or the Treasury regulations
promulgated thereunder or the publication of any revenue ruling, revenue
procedure or any informational release by the Internal Revenue Service or the
Department of Treasury either of which would change or would allow a change in
the tax assumptions or structure upon which the lease economics were based,
provided that the Owner Participant or the Lessee has notified the other party
of such change in writing prior to the Delivery Date.
Change in Tax Rate. Any amendment, modification, deletion, addition,
or change to the Code which is enacted into law after the Delivery Date which
changes the highest marginal statutory rate of Federal income tax applicable
to the Owner Participant (other than a change which is in the nature of a
minimum tax).
Citizen of the United States. A citizen of the United States as
defined in Section 40102(a)(15) of the Transportation Code, or any analogous
part of any successor or substituted legislation or regulation at the time in
effect.
Class A Liquidity Provider. Has the meaning specified in Section
1.01 of the Intercreditor Agreement.
Class B Liquidity Provider. Has the meaning specified in Section
1.01 of the Intercreditor Agreement.
Closings. The closing with respect to the acquisition of the Pass
Through Certificates by the Underwriters and the closing with respect to the
acquisition of Certificates by the Pass Through Trustee.
Code. Except as otherwise provided, the Internal Revenue Code of
1986, as amended from time to time.
Collateral Account. The deposit account established and maintained
pursuant to Section 2.13 of the Indenture.
Collateral Account Control Agreement. The Collateral Account Control
Agreement dated as of May 1, 1997 among State Street Bank and Trust Company,
the Indenture Trustee and the Owner Trustee.
Commitment. The amount of the Owner Participant's participation in
the Purchase Price required to be made available or paid as provided in
Section 3.02 of the Participation Agreement.
Consent and Agreement. The Consent and Agreement dated as of May 1,
1997 executed by the Manufacturer.
Consent and Guaranty. The Consent and Guaranty of the Manufacturer
attached to the Purchase Agreement.
Corporate Trust Administration. The Corporate Trust Administration
office of the Owner Trustee located at 750 Main Street, Hartford, Connecticut
06103, Attention: Corporation Trust Administration, or such other office at
which the Owner Trustee's corporate trust business shall be administered which
the Owner Trustee shall have specified by notice in writing to the Lessee, the
Owner Participant and the Indenture Trustee.
Corporate Trust Department. The Corporate Trust Department office of
the Indenture Trustee located at 79 South Main Street, Salt Lake City, Utah
84111, Attention: Corporate Trust Department, or such other office at which
the Indenture Trustee's corporate trust business shall be administered which
the Indenture Trustee shall have specified by notice in writing to the Lessee,
the Owner Participant and the Owner Trustee.
CRAF Program. Has the meaning specified in Section 7.01(f) of the
Lease.
Cut-Off Date. November 17, 1997.
Debt Portion. The amount specified as such on Schedule IV to the
Participation Agreement.
Debt Rate. The weighted average (based on Outstanding principal
amount) rate of interest on the Certificates issued pursuant to the Indenture.
Default. Any event or condition which, with the lapse of time or the
giving of notice, or both, would constitute an Event of Default.
Delivery Date. The date on which the Aircraft is delivered and sold
by AVSA to the Lessor and leased by the Lessor to the Lessee under the Lease,
which date shall also be the date of the initial Lease Supplement.
Delivery Notice. Notice of the Aircraft's Delivery Date, given by
the Lessee as provided in Section 3.01 of the Participation Agreement and
including any notice with respect to a postponed Delivery Date given by the
Lessee pursuant to Section 3.05(c) of the Participation Agreement.
Eligible Deposit Account. Either (a) a segregated account with an
Eligible Institution or (b) a segregated trust account with the corporate
trust department of a depository institution with corporate trust powers
organized under the laws of the United States or any state thereof, or the
District of Columbia, and whose deposits are insured by the Federal Deposit
Insurance Corporation, provided that such institution also has a combined
capital and surplus of at least $100,000,000 and a rating of A or better from
the Thomson Bank Watch.
Eligible Institution. A depository institution organized under the
laws of the United States or any one of the states thereof, or the District of
Columbia, or any domestic branch of a foreign bank, which in any such case at
all times (a) has either (x) a long-term unsecured debt rating of at least Aa2
by Moody's or (y) a short-term certificate of deposit rating of P-1 by
Moody's, (b) has either (x) a long-term unsecured debt rating of a least AA by
S&P or (y) a short-term certificate of deposit rating of A-1+ by S&P and (c)
is a member of the Federal Deposit Insurance Corporation.
Engine. Each of the two General Electric CF6-80C2-A5F engines listed
by its manufacturer's serial number in the initial Lease Supplement and leased
pursuant to the Lease, whether or not from time to time installed on the
Airframe or installed on any other airframe or on any other aircraft, and any
Replacement Engine which may from time to time be substituted for an Engine
pursuant to Section 7.02(a)(vii), 10.02(c), 10.03, 11.03, 11.04 or 12.02 of
the Lease, together with all Parts related thereto. Except as otherwise
provided, at such time as a Replacement Engine shall be so substituted and the
Engine for which the substitution is made shall be released from the Lien of
the Indenture, such replaced Engine shall cease to be an "Engine" under the
Lease. The term "Engines" means, as of any date of determination, both Engines
then leased to the Lessee pursuant to the Lease.
Engine Consent. The Engine Consent dated as of May 1, 1997, executed
by the Engine Manufacturer.
Engine Manufacturer. General Electric Company, a New York
corporation.
Engine Warranty Assignment. The Engine Warranty Assignment (Federal
Express Corporation Trust No. N672FE), dated as of May 1, 1997 between the
Lessor and the Lessee.
ERISA. The Employee Retirement Income Security Act of 1974, as
amended.
ERISA Plan. As defined in Section 8.01(b)(xii) of the Participation
Agreement.
Estimated Expense Amount. Has the meaning specified in Section
10.01(a) of the Participation Agreement.
Event of Default. Each of the events specified in Article 16 of the
Lease.
Event of Loss. Any of the following events with respect to the
Aircraft, the Airframe or any Engine: (i) loss of such property or its use (A)
for a period in excess of 60 days due to theft or disappearance or such longer
period, not to exceed 180 days from the end of such initial 60-day period, if
and so long as the location of such property is known to the Lessee and the
Lessee is diligently pursuing recovery of such property, or to the end of the
Term, if less (unless such theft or disappearance constitutes an Event of Loss
pursuant to (i)(B) or (ii) hereof) or (B) for a period in excess of 60 days
due to the destruction, damage beyond economic repair or rendition of such
property permanently unfit for normal use by Lessee for any reason whatsoever;
(ii) any damage to such property which results in an insurance settlement with
respect to such property on the basis of a total loss, or constructive or
compromised total loss; (iii) (1) condemnation, confiscation or seizure of, or
requisition of title to such property by the Government, any foreign
government or purported government or any agency or instrumentality thereof,
or (2) condemnation, confiscation, or seizure of, or requisition or taking of,
use of such property (A) by a foreign government or instrumentality or agency
of any such foreign government, for a period in excess of 180 days (or such
shorter period ending on the earlier of the expiration of the Term or on the
date on which an insurance settlement with respect to such property on the
basis of a total loss or constructive or compromised total loss shall occur)
or (B) by the Government for a period extending beyond the Term; and (iv) as a
result of any law, rule, regulation, order or other action by the Aeronautics
Authority or other governmental body having jurisdiction, the use of the
Aircraft or Airframe in the normal course of air transportation of cargo shall
have been prohibited by virtue of a condition affecting all Airbus A300-600
series aircraft equipped with engines of the same make and model as the
Engines for a period of twelve (12) consecutive months, unless the Lessee,
prior to the expiration of such twelve (12) month period, shall be diligently
carrying forward all steps which are necessary or desirable to permit the
normal use of the Aircraft or Airframe or, in any event, if such use of the
Aircraft or the Airframe shall have been prohibited for a period of
twenty-four (24) consecutive months or until the end of the Term, if earlier.
The date of such Event of Loss shall be (s) the 61st day or the 241st day, as
the case may be, following loss of such property or its use due to theft or
disappearance (or the end of the Term or the Lessee's abandonment of diligent
efforts to recover such property, if earlier); (t) the 61st day following the
date of any destruction, damage beyond economic repair or rendition of such
property permanently unfit for normal use; (u) the date of any insurance
settlement on the basis of a total loss or constructive or compromised total
loss; (v) the date of any condemnation, confiscation, seizure or requisition
of title of such property; (w) the 181st day following condemnation,
confiscation, seizure or requisition for use of such property by a foreign
government referred to in clause (iii)(2)(A) above (or the end of the Term or
the date of any insurance settlement described therein, if earlier than such
181st day); (x) the last day of the Term in the case of requisition for use of
such property by the Government; (y) the last day of the 12 month or 24 month
period, referred to in clause (iv) above (or if earlier, the end of the Term
or abandonment of the Lessee's efforts to restore the normal use of the
Aircraft). An Event of Loss with respect to the Aircraft shall be deemed to
have occurred if any Event of Loss occurs with respect to the Airframe.
Excepted Payments. Collectively, (i) indemnity, expense,
reimbursement or other payments paid or payable by the Lessee in respect of
the Owner Participant, the Owner Trustee in its individual capacity or any of
their respective successors, permitted assigns, directors, officers,
employees, servants and agents or Affiliates, pursuant to the Participation
Agreement or any other Operative Agreement or any indemnity hereafter granted
to the Owner Participant or the Owner Trustee in its individual capacity
pursuant to the Lease or the Participation Agreement, (ii) proceeds of public
liability insurance (or government indemnities in lieu thereof) in respect of
the Aircraft payable as a result of insurance claims paid for the benefit of,
or losses suffered by, the Owner Trustee or the Indenture Trustee in their
respective individual capacities or by the Owner Participant, or their
respective successors, permitted assigns or Affiliates, (iii) proceeds of
insurance maintained with respect to the Aircraft by the Owner Participant
(whether directly or through the Owner Trustee) maintained in accordance with
Section 13.05 of the Lease but not required under Article 13 of the Lease,
(iv) payments of Supplemental Rent by the Lessee in respect of any amounts
payable under the Tax Indemnity Agreement, (v) any purchase price paid to the
Owner Participant for its interest in the Trust Estate pursuant to Section
7.03(d) of the Participation Agreement, (vi) subject to Section 3.05 of the
Lease, payments constituting increases in Basic Rent attributable to payments
arising pursuant to Section 5 of the Tax Indemnity Agreement, (vii) any
payments in respect of interest to the extent attributable to payments
referred to in clauses (i) through (vi) above and (viii) any right to demand,
collect or otherwise receive and enforce the payment of any amount described
in clauses (i) through (v) and (vii) above (except with respect to interest
attributable to payments referred to in clause (vi) above).
Expense; Expenses. Have the meaning specified in Section 9.01(a) of
the Participation Agreement.
Fair Market Renewal Term. A term with respect to which the Lessee has
exercised its option to renew the Lease pursuant to the second paragraph of
Section 4.01(a) thereof and with respect to which the conditions set forth in
such Section 4.01(a) are met.
Fair Market Rental. An amount determined on the basis of, and equal
in amount to, the rental which would be obtained in an arm's-length
transaction between an informed and willing lessee and an informed and willing
lessor unaffiliated with such lessee, neither being under any compulsion to
lease. In such determination, it shall be assumed that the Aircraft is in the
condition required under the Lease in the case of return of the Aircraft
pursuant to Article 12 of the Lease and Fair Market Rental shall be determined
in accordance with the provisions of Section 4.03 of the Lease.
Fair Market Value. An amount determined on the basis of, and equal in
amount to, the value which would be obtained in an arm's-length transaction
between an informed and willing purchaser under no compulsion to buy and an
informed and willing seller unaffiliated with such purchaser and under no
compulsion to sell, assuming the Aircraft (or other property) is unencumbered
by the Lease. In such determination, except for purposes of Section 17.01 of
the Lease (when it shall be determined based upon the actual condition and
location of the Aircraft), it shall be assumed that the Aircraft is in the
condition required under the Lease in the case of return of the Aircraft
pursuant to Article 12 of the Lease and Fair Market Value shall be determined
in accordance with the provisions of Section 4.03 of the Lease.
Federal Aviation Administration; FAA. The United States Federal
Aviation Administration and any successor agency or agencies thereto.
Final Drawing. Has the meaning specified in Section 1.01 of the
Intercreditor Agreement.
Fixed Renewal Rent. Semi-annual payments of rent during the Fixed
Renewal Term equal to the lesser of (i) Fair Market Rental as determined as of
the commencement of such Fixed Renewal Term and (ii) 50% of the average actual
semi-annual Basic Rent payable during the Basic Term.
Fixed Renewal Term. The term with respect to which the Lessee has
exercised its option to renew the Lease pursuant to the first paragraph of
Section 4.01(a) thereof and with respect to which the conditions set forth in
such Section 4.01(a) are met.
FPO Price. Has the meaning set forth in Section 4.02(a)(F) of the
Lease.
French Pledge Agreement. The French Pledge Agreement dated as of May
1, 1997 between the Owner Trustee and the Indenture Trustee.
FSB. First Security Bank, National Association, a national banking
association.
Government. The United States of America or an agency or
instrumentality thereof the obligations of which bear the full faith and
credit of the United States of America.
GTA. The General Terms Agreement dated as of July 3, 1991 between the
Engine Manufacturer and the Lessee related to the purchase by the Lessee of the
Engines as originally executed or as modified, amended or supplemented in
accordance with the terms thereof, but only insofar as the General Terms
Agreement relates to the Engines, to the extent assigned to the Owner Trustee
pursuant to the Engine Warranty Assignment.
Holder of a Certificate; Certificate Holder; Holder. As of any
particular time, the Person in whose name a Certificate shall be registered
(but not including the holder of any Pass Through Certificate).
Indemnitee. Each of SSB, in its individual capacity and as Owner
Trustee and Lessor, the Subordination Agent, in its individual capacity and in
its capacity as Subordination Agent, each Liquidity Provider, the Owner
Participant, the Indenture Trustee, in its individual capacity and as trustee,
the Owner Participant Guarantor and any successor (including any trustee which
may succeed to the Lessor's interest under the Lease), Affiliate, assign,
officer, director, employee, agent and servant of any of the foregoing, the
Lessor's Estate and the Trust Indenture Estate. Neither the Pass Through
Trustee nor any holder of a Pass Through Certificate shall be deemed to be an
Indemnitee.
Indenture. The Trust Indenture and Security Agreement (Federal
Express Corporation Trust No. N672FE), dated as of May 1, 1997, between the
Lessor and the Indenture Trustee, as supplemented by the Indenture and
Security Agreement Supplement.
Indenture and Security Agreement Supplement. The Indenture and
Security Agreement Supplement No. 1 (Federal Express Corporation Trust No.
N672FE) to be dated the Delivery Date, substantially in the form of Exhibit A
to the Indenture.
Indenture Default. Any event or condition which, with the lapse of
time or the giving of notice, or both, would constitute an Indenture Event of
Default.
Indenture Documents. Has the meaning specified in the Granting
Clause of the Indenture.
Indenture Event of Default. Each of the events specified in Section
7.01 of the Indenture.
Indenture Trustee. First Security Bank, National Association, a
national banking association, not in its individual capacity but solely as
Indenture Trustee under the Indenture.
Indenture Trustee's Liens. Any Lien against, on or with respect to
the Aircraft, the Lessor's Estate or the Trust Indenture Estate or any part
thereof resulting from (i) claims against the Indenture Trustee not related to
the administration of the Trust Indenture Estate or any transactions pursuant
to the Indenture or any document included in the Trust Indenture Estate, (ii)
any act or omission of the Indenture Trustee which is not related to the
transactions contemplated by the Operative Agreements or is in violation of
any of the terms of the Operative Agreements or (iii) Taxes imposed against
the Indenture Trustee in its individual capacity in respect of which the Lessee
has not indemnified (and is not obligated to indemnify) the Indenture Trustee
in such capacity.
Independent Appraisal. An appraisal conducted pursuant to Section
4.03 of the Lease.
Independent Investment Banker. An independent investment banking
institution of national standing appointed by the Lessee that is independent
in fact, does not have any direct financial interests, or any material
indirect financial interest, in the Lessee or any Affiliate of the Lessee, and
is not connected with the Lessee or any Affiliate of the Lessee, as an
officer, employee, promoter, underwriter, trustee, partner, director or Person
performing similar functions; provided, that if the Indenture Trustee shall
not have received written notice of such an appointment at least 10 days prior
to the Prepayment Date, "Independent Investment Banker" shall mean such an
institution appointed by the Indenture Trustee.
Intercreditor Agreement. The Intercreditor Agreement dated as of May
1, 1997, among the Pass Through Trustee, the Class A Liquidity Provider, the
Class B Liquidity Provider and the Subordination Agent.
Interest Drawing. Has the meaning specified in Section 1.01 of the
Intercreditor Agreement.
Invoice. The invoice for the Aircraft given by AVSA to the Lessor.
Lease. The Lease Agreement (Federal Express Corporation Trust No.
N672FE) dated as of May 1, 1997, entered into by the Lessor and the Lessee
concurrently with the execution and delivery of the Indenture, including,
without limitation, supplementation by one or more Lease Supplements entered
into pursuant to the applicable provisions of the Lease.
Lease Supplement. The Lease Supplement No. 1 (Federal Express
Corporation Trust No. N672FE) to be dated the Delivery Date, substantially in
the form of Exhibit A to the Lease.
Lease Term. The period commencing on the Delivery Date and ending at
the end of the Basic Term.
Lessee. Federal Express Corporation, a Delaware corporation.
Lessee Documents. Has the meaning set forth in Section 6.01(b) of the
Participation Agreement.
Lessor. State Street Bank and Trust Company of Connecticut, National
Association, a national banking association, not in its individual capacity
but solely as Owner Trustee under the Trust Agreement.
Lessor's Estate. All estate, right, title and interest of the Owner
Trustee in and to the Collateral Account, the Liquid Collateral, the Aircraft,
the Lease, any Lease Supplement, the Participation Agreement, AVSA's FAA Bill
of Sale, AVSA's Warranty Bill of Sale, the Airbus Guaranty, the Purchase
Agreement, the Purchase Agreement Assignment, the Consent and Agreement, the
AVSA Consent and Agreement, the Consent and Guaranty (to the extent assigned
by the Purchase Agreement Assignment), any Ancillary Agreement, the GTA, the
Engine Warranty Assignment, the Engine Consent, any warranty with respect to
the Airframe and the Engines, all amounts of Basic Rent and Supplemental Rent,
including without limitation, insurance proceeds (other than insurance
proceeds payable to or for the benefit of the Owner Trustee in its individual
capacity or the Owner Participant) and requisition, indemnity or other
payments of any kind for or with respect to the Aircraft (except amounts owing
to the Owner Participant, to the Indenture Trustee, to the Owner Trustee in its
individual capacity, or to any of their respective directors, officers,
employees and agents pursuant to Articles 8 and 9 of the Participation
Agreement), and all other property of the Owner Trustee purportedly subjected
to the Lien of the Indenture by the Granting Clause thereof; provided that in
no event shall "Lessor's Estate" include any Excepted Payment.
Lessor's Liens. Liens against, on or with respect to the Aircraft,
the Lessor's Estate or the Trust Indenture Estate or any part thereof, title
thereto or any interest therein arising as a result of (i) claims against the
Lessor, in its individual capacity or as Owner Trustee, or the Owner
Participant, in each case not related to the transactions contemplated by the
Operative Agreements, (ii) acts or omissions of the Lessor in its individual
capacity or as Owner Trustee, and, in the case of the Lessor in its individual
capacity, arising from its gross negligence or willful misconduct or expressly
prohibited under the Operative Agreements and any act or omission of the Owner
Participant which is in violation of any of the terms of the Operative
Agreements, (iii) Taxes or Expenses imposed against the Lessor, in its
individual capacity or as Owner Trustee, Owner Participant, Lessor's Estate or
the trust created by the Trust Agreement which are not required to be
indemnified against by the Lessee pursuant to the Participation Agreement by
reason of Section 8.01(b) or 9.01(b) thereof and which are not required to be
indemnified against by the Lessee pursuant to the Tax Indemnity Agreement, or
(iv) claims against the Lessor or the Owner Participant arising from the
voluntary transfer by the Lessor or the Owner Participant of its interests in
the Aircraft other than a transfer of the Aircraft pursuant to Section 4.02(a)
or Article 10 or 11 of the Lease and other than a transfer pursuant to the
exercise of the remedies set forth in Article 17 of the Lease.
Lien. Any mortgage, pledge, lien, charge, encumbrance, lease or
security interest or other similar interest.
Liquid Collateral. All amounts and securities deposited from time to
time in the Collateral Account and all the products, investments, earnings and
proceeds of the foregoing, including, but not limited to, all proceeds of the
investment or conversion thereof, voluntary or involuntary, into cash,
Specified Investments or other property, all rights to payment of any and
every kind, and other forms of obligations, and instruments and other property
which at any time constitute all or part or are included in the proceeds of
any of the foregoing.
Liquidity Facility. Has the meaning specified in Section 1.01 of the
Intercreditor Agreement.
Liquidity Provider. Has the meaning specified in Section 1.01 of the
Intercreditor Agreement.
Losses. Has the meaning specified in Section 17.02(a) of the
Participation Agreement.
Loss Payee. Has the meaning specified in Section 13.02(b)(i) of the
Lease.
Majority in Interest of Certificate Holders. As of a particular date
of determination, the Holders of more than 50% of the aggregate unpaid
principal amount of all Certificates outstanding as of such date excluding for
purposes of this definition any Certificates held by (i) the Owner Trustee or
the Owner Participant or any interests of the Owner Participant unless all
Certificates then outstanding shall be held by the Owner Participant, (ii) the
Lessee or (iii) any Affiliate of any thereof.
Make-Whole Premium. An amount determined as of the day before the
applicable Prepayment Date (or date of purchase, as the case may be) which an
Independent Investment Banker determines to be equal to the excess, if any, of
(i) the present value of the remaining scheduled payments of such principal
amount or portion thereof and interest thereon (excluding interest accrued
from the immediately preceding Payment Date to such Prepayment Date or date of
purchase, as the case may be) to the Maturity of such Certificate in
accordance with generally accepted financial practices assuming a 360-day year
consisting of twelve 30-day months at a discount rate equal to the Treasury
Yield, all as determined by the Independent Investment Banker over (ii) the
outstanding principal amount of such Certificate plus accrued interest.
Manufacturer. Airbus Industrie G.I.E., a groupement d'interet
economique formed under the laws of France.
Maturity. With respect to any Certificate, the date on which the
final principal amount of such Certificate is scheduled to be due and payable.
Moody's. Moody's Investors Service, Inc.
Net Present Value of Rents. The net present value, as of the
Delivery Date, of Basic Rent set forth in Schedule II of the Lease, discounted
at a rate equal to the Debt Rate per annum compounded semi-annually.
Non-U.S. Person. Any Person other than a U.S. Person.
Obsolete Parts. Parts which are severable from the Aircraft in
accordance with clauses (ii) and (iii) of the proviso to Section 9.02(b) of
the Lease and the Lessee in good faith determines to be obsolete or no longer
suitable or appropriate for use on the Airframe or any Engine.
Officer's Certificate. When delivered pursuant to the Indenture, a
certificate signed by a Responsible Officer of the Lessee or the Owner
Trustee, as the case may be, and delivered to the Indenture Trustee. Each
such certificate shall include the statements provided for in Section 15.07 of
the Indenture.
Operative Agreements. The Participation Agreement, the Trust
Agreement, AVSA's FAA Bill of Sale, AVSA's Warranty Bill of Sale, the Airbus
Guaranty, the Purchase Agreement, the Purchase Agreement Assignment, the GTA,
the Engine Warranty Assignment, the French Pledge Agreement, the Lease, the
Lease Supplement, the Owner Participant Guaranty, the Owner Trustee Guaranty,
if any, any Ancillary Agreement entered into by or with the written consent of
the Indenture Trustee, which by its terms is an Operative Agreement, the
Certificates outstanding at the time of reference, the Indenture, the
Indenture and Security Agreement Supplement, the Consent and Agreement, the
AVSA Consent and Agreement, the Consent and Guaranty (to the extent assigned
by the Purchase Agreement Assignment), the Engine Consent, the Tax Indemnity
Agreement, each Liquidity Facility, the Intercreditor Agreement, the
Collateral Account Control Agreement and any Assignment and Assumption
Agreement.
Opinion of Counsel. When delivered pursuant to the Indenture, a
written opinion of legal counsel, who in the case of counsel (a) for the
Lessee may be (i) an attorney employed by the Lessee who is generally
empowered to deliver such written opinions, (ii) Davis Polk & Wardwell or a
successor firm or (iii) other counsel designated by the Lessee and reasonably
satisfactory to the Indenture Trustee and (b) for the Owner Trustee or the
Indenture Trustee, an attorney selected by such Person and, in the case of the
Owner Trustee, reasonably satisfactory to the Indenture Trustee.
Outstanding. When used with respect to Certificates, as of the date
of determination and subject to the provisions of Section 10.04 of the
Indenture, all Certificates theretofore executed and delivered under the
Indenture, with the exception of the following:
(i) Certificates theretofore cancelled by the Indenture Trustee or
delivered to the Indenture Trustee for cancellation pursuant to
Section 2.08 of the Indenture or otherwise;
(ii) Certificates for which prepayment money in the necessary amount
has been theretofore deposited with the Indenture Trustee in trust
for the Holders of such Certificates pursuant to Section 14.01 of the
Indenture; provided, that if such Certificates are to be prepaid,
notice of such prepayment has been duly given pursuant to the
Indenture or provision therefor satisfactory to the Indenture Trustee
has been made; and
(iii) Certificates in exchange for or in lieu of which other
Certificates have been executed and delivered pursuant to Article II
of the Indenture.
Owner Participant. The trustor originally named in the Trust
Agreement and any successor thereto, and any Person to which the Owner
Participant transfers, in accordance with the Trust Agreement, its right,
title and interest in and to the Operative Agreements and the Lessor's Estate.
Owner Participant Guarantor. Philip Morris Capital Corporation, a
Delaware corporation, and any other provider of an Owner Participant Guaranty.
Owner Participant Guaranty. The Owner Participant Guaranty dated the
Certificate Closing Date by the Owner Participant Guarantor in favor of the
Lessee, the Owner Trustee, the Indenture Trustee and the Pass Through Trustee,
and any guaranty delivered in compliance with Section 7.03(d) of the
Participation Agreement.
Owner Trustee. SSB, not in its individual capacity except as
otherwise expressly stated, but solely as Owner Trustee under the Trust
Agreement.
Owner Trustee Guarantor. The provider of an Owner Trustee Guaranty.
Owner Trustee Guaranty. Any guaranty delivered in compliance with
Section 11.01(b)(ii) of the Participation Agreement.
Owner's Economic Return. The Owner Participant's anticipated net
after-tax book yield and aggregate after-tax cash during the Basic Term
utilizing the multiple investment sinking fund method of analysis, computed on
the basis of the same methodology and assumptions as were utilized by the
Owner Participant in determining Basic Rent, Stipulated Loss Value and
Termination Value percentages, as the case may be, as such assumptions may be
adjusted for events which have been the basis of adjustments to Rent pursuant
to Section 3.04 of the Lease.
Participation Agreement. The Participation Agreement (Federal Express
Corporation Trust No. N672FE), dated as of May 1, 1997, among the Lessee, the
Owner Trustee not in its individual capacity except as otherwise expressly
provided therein, but solely as owner trustee, the Owner Participant, the
Indenture Trustee not in its individual capacity except as otherwise expressly
provided therein, but solely as indenture trustee, the Pass Through Trustee
not in its individual capacity except as otherwise expressly provided therein,
but solely as pass through trustee and the Subordination Agent not in its
individual capacity except as otherwise expressly provided therein, but solely
as subordination agent.
Parts. All appliances, parts, components, instruments, appurtenances,
accessories, furnishings and other equipment of whatever nature (other than
complete Engines or engines) which may from time to time be incorporated or
installed in or attached to the Airframe or any Engine or title to which
remains vested in the Lessor pursuant to Article 8 of the Lease.
Pass Through Agreement. The Pass Through Trust Agreement dated as of
May 1, 1997 between the Lessee and the Pass Through Trustee.
Pass Through Certificates. Any of the Pass Through Certificates,
1997-1-A, the Pass Through Certificates, 1997-1-B or the Pass Through
Certificates, 1997-1-C, in each case as issued by the related Pass Through
Trust; and "Pass Through Certificates" means all of the Pass Through
Certificates issued by each of the Pass Through Trusts.
Pass Through Closing Date. The Business Day on which the sale of the
Pass Through Certificates to the Underwriters pursuant to the Underwriting
Agreement takes place.
Pass Through Trust. The Federal Express Corporation 1997-1 Pass
Through Trust Class A, Federal Express Corporation 1997-1 Pass Through Trust
Class B and Federal Express Corporation 1997-1 Pass Through Trust Class C, in
each case formed pursuant to the related Series Supplement in accordance with
the Pass Through Agreement; and "Pass Through Trusts" means all of such Pass
Through Trusts.
Pass Through Trustee. First Security Bank, National Association, a
national banking association, in its capacity as Pass Through Trustee under
the Pass Through Agreement and each Pass Through Trust.
Past Due Rate. In respect of (A) any amount payable to the Owner
Participant or the Owner Trustee a rate per annum during the period from and
including the due date to but excluding the date on which such amount is paid
in full equal to 2% plus the Debt Rate and (B) any principal of or interest on
any Certificate or any other amount payable under the Indenture, any
Certificate or any other Operative Agreement that is not paid when due
(whether at Maturity, by acceleration, by optional or mandatory prepayment or
otherwise) to any Holder, the Indenture Trustee or the Pass Through Trustee, a
rate per annum during the period from and including the due date to but
excluding the date on which such amount is paid in full equal to (i) in the
case of any such amount payable to the Holder of any Certificate, 2% plus the
interest rate applicable to such Certificate and (ii) in the case of any other
such amount, 2% plus the Debt Rate.
Payment Date. Each January 15 and July 15 commencing on July 15,
1997.
Payment Default. Any event specified in Section 16.01(a) or 16.01(b)
of the Lease which with the giving of notice or lapse of time or both would
constitute an Event of Default.
Permitted Investments. Those investments enumerated in Section
23.01(a) (i), (ii), (iii) and (iv) of the Lease.
Person. Any individual, sole proprietorship, partnership, joint
venture, joint stock company, trust, unincorporated organization, association,
corporation, institution, entity or government (federal, state, local,
foreign or any agency, instrumentality, division or body thereof).
Preliminary Notice. Has the meaning specified in Section 4.01(a) of
the Lease.
Premium Termination Date. With respect to the Series A Certificates,
December 27, 2011, with respect to the Series B Certificates, February 5, 2010
and with respect to the Series C Certificates, March 22, 2007.
Prepayment Date. Has the meaning specified in Section 6.02(b) of the
Indenture.
Prepayment Price. Has the meaning specified in Section 6.02(b) of the
Indenture.
Principal Amount. With respect to a Certificate means the stated
original principal amount of such Certificate and, with respect to all
Certificates, means the aggregate stated original principal amounts of all
Certificates.
Property. Any right or interest in or to property of any kind
whatsoever, whether real, personal or mixed and whether tangible or intangible.
Proposed Termination Date. The proposed date of termination of the
Lease as specified by the Lessee in its notice given pursuant to Section 10.01
thereof.
Purchase Agreement. The Airbus A300-600R Freighter Purchase Agreement,
dated as of July 3, 1991 between AVSA and the Lessee, including all exhibits,
appendices and letter agreements attached thereto as originally executed or as
modified, amended or supplemented in accordance with the terms thereof, but
only to the extent that the foregoing relates to the Aircraft and to the
extent assigned pursuant to the Purchase Agreement Assignment.
Purchase Agreement Assignment. The Purchase Agreement Assignment
(Federal Express Corporation Trust No. N672FE), dated as of May 1, 1997 between
the Lessor and the Lessee.
Purchase Price. Has the meaning specified in Ancillary Agreement II.
Record Date. With respect to Payment Dates under the Indenture
(except a date for payment of defaulted interest), December 31 for January 15
Payment Dates and June 30 for July 15 Payment Dates, whether or not such date
is a Business Day.
Recourse Amount. Has the meaning specified in Section 17.10 of the
Participation Agreement.
Refinancing. A non-recourse loan to the Lessor arranged pursuant to
Section 15.01 of the Participation Agreement.
Register. Has the meaning set forth in Section 3.02 of the Indenture.
Registrar. Has the meaning set forth in Section 3.02 of the
Indenture.
Regulation D. Regulation D of the Board of Governors of the Federal
Reserve System (or any successor), as the same may be modified and
supplemented and in effect from time to time.
Related Indentures. Collectively, the Trust Indenture and Security
Agreement for each of Federal Express Corporation Trust Nos. N670FE, N671FE,
N673FE, N674FE, N583FE and N584FE, each dated as of May 1, 1997, between the
Owner Trustee and the Indenture Trustee, the Trust Indenture and Security
Agreement for Federal Express Corporation Trust No. N581FE, dated as of May 1,
1997, between Wilmington Trust Company, as owner trustee and the Indenture
Trustee, and the Trust Indenture and Security Agreement for Federal Express
Corporation Trust No. N587FE, dated as of December 1, 1996, as amended and
restated as of May 1, 1997, between Wilmington Trust Company, as owner trustee
and the Indenture Trustee.
Remaining Weighted Average Life. On a given date with respect to any
Certificate the number of days equal to the quotient obtained by dividing (i)
the sum of each of the products obtained by multiplying (a) the amount of each
then remaining scheduled payment of principal of such Certificate by (b) the
number of days from and including such prepayment date to but excluding the
dates on which each such payment of principal is scheduled to be made; by (ii)
the then outstanding principal amount of such Certificate.
Renewal Rent. The amount payable by the Lessee as rent in accordance
with Section 4.01 of the Lease during any Renewal Term.
Renewal Term. One or more terms with respect to which the Lessee has
exercised its option to renew the Lease pursuant to Section 4.01(a) thereof.
Rent. All payments due from the Lessee under the Lease as Basic Rent,
Renewal Rent and Supplemental Rent, collectively.
Rent Payment Date. November 19, 2020 and each January 15 and July 15
commencing on January 15, 1998.
Reoptimization Date. Has the meaning specified in Section 15.02(a)
of the Participation Agreement.
Replacement Aircraft. Any aircraft substituted for the Aircraft
pursuant to Section 11.03(a) of the Lease.
Replacement Airframe. Has the meaning set forth in Section 11.03 of
the Lease.
Replacement Engine. A General Electric CF6-80C2-A5F engine (or an
engine of the same or another manufacturer) of equal or greater value,
airworthiness, remaining useful life and utility as the Engine being replaced,
together with all Parts relating to such engine; provided, however, that if
such replacement engine is not a General Electric CF6-80C2-A5F engine, such
replacement engine must then be commonly used in the commercial aviation
industry on Airbus A300-600 airframes.
Responsible Officer. With respect to the Owner Trustee (except for
purposes of the Trust Agreement in which case the definition of Responsible
Officer set forth in Section 3.10 of the Trust Agreement is applicable) or the
Indenture Trustee, any officer in its Corporate Trust Administration, as the
case may be, designated by such Person to perform obligations under the
Operative Agreements, and with respect to any other party, any corporate
officer or (except in the case of the Owner Participant) other employee of a
party who, in the normal performance of his or her operational
responsibilities, with respect to the subject matter of any covenant,
agreement or obligation of such party pursuant to any Operative Agreement,
would have responsibility for and knowledge of such matter and the
requirements of any Operative Agreement with respect thereto.
S&P. Standard & Poor's Ratings Group.
Scheduled Delivery Date. The Delivery Date specified in the Delivery
Notice pursuant to Section 3.01 of the Participation Agreement.
SEC. The Securities and Exchange Commission of the United States and
any successor agencies or authorities.
Secured Obligations. Has the meaning specified in the Granting
Clause of the Indenture.
Securities Act. The Securities Act of 1933, as amended.
Series "A" or "Series A Certificates". Certificates issued and
designated as "Series A" under the Indenture, in the Principal Amount and
maturities and bearing interest as specified in Exhibit B to the Indenture
under the heading "Series A".
Series "B" or "Series B Certificates". Certificates issued and
designated as "Series B" under the Indenture, in the Principal Amount and
maturities and bearing interest as specified in Exhibit B to the Indenture
under the heading "Series B".
Series "C" or "Series C Certificates". Certificates issued and
designated as "Series C" under the Indenture, in the Principal Amount and
maturities and bearing interest as specified in Exhibit B to the Indenture
under the heading "Series C".
Series Supplement or Series Supplements. The Series Supplement
1997-1-A to be executed and delivered by the Lessee and the Pass Through
Trustee, the Series Supplement 1997-1-B to be executed and delivered by the
Lessee and the Pass Through Trustee or the Series Supplement 1997-1-C to be
executed and delivered by the Lessee and the Pass Through Trustee.
Sinking Fund Redemption Date. Has the meaning specified in Section
6.06 of the Indenture.
Sinking Fund Redemption Price. Has the meaning specified in Section
6.06 of the Indenture.
Special Aviation Counsel. Daugherty, Fowler & Peregrin.
Specified Investments. Shall mean (a) direct obligations of the
United States of America or obligations fully guaranteed by the United States
of America; (b) commercial paper rated A-1/P-1 by S&P and Moody's,
respectively or, if such ratings are unavailable, rated by any nationally
recognized rating organization in the United States equal to the highest
rating assigned by such rating organization; (c) investments in negotiable
certificates of deposit, time deposits, banker's acceptances, commercial paper
or other direct obligations of, or obligations guaranteed by, commercial banks
organized under the laws of the United States or of any political subdivision
thereof (or any U.S. branch of a foreign bank) with issuer ratings of at least
B/C by Thomson Bankwatch, having maturities no later than 90 days following
the date of such investment; (d) overnight federal funds transactions with
members of the Federal Reserve System arranged by federal funds brokers; or
(e) overnight repurchase agreements with respect to the securities described
in clause (a) above entered into with an office of a bank or trust company
which is located in the United States of America or any bank or trust company
which is organized under the laws of the United States or any state thereof
and has capital, surplus and undivided profits aggregating at least $500
million.
SSB. State Street Bank and Trust Company of Connecticut, National
Association, a national banking association.
Stipulated Loss Value. As of any Stipulated Loss Value Determination
Date during the Basic Term, the amount determined by multiplying the Purchase
Price by the percentage set forth in Schedule III of the Lease under the
heading "Stipulated Loss Value Factor" opposite such date (as such Schedule
III may be adjusted from time to time as provided in Section 3.04 of the
Lease), and during any Renewal Term, the amount determined pursuant to Section
4.01(b) of the Lease. Notwithstanding any other provisions of the Lease or
the Participation Agreement or the Indenture, each Stipulated Loss Value for
the Aircraft shall be, under any circumstances and in any event, an amount,
together with so much of the arrears portion of Basic Rent due and owing
through the date of payment of Stipulated Loss Value as does not constitute an
Excepted Payment, at least sufficient to pay in full as of such date of
payment the aggregate unpaid principal amount of and accrued interest on the
Certificates outstanding on such date of payment. Subject to the immediately
preceding sentence, it is understood and agreed that the amounts set forth on
Schedule III of the Lease, for dates other than Rent Payment Dates on which
arrears Basic Rent is due, fully reflect appropriate Basic Rent accruals and
credits of unearned Basic Rent through such date and, accordingly, no further
accrual or credit shall be required through such date whenever Stipulated Loss
Value is to be calculated with reference to any such date; provided that if
amounts in respect of Stipulated Loss Value are payable under the Operative
Agreements after the Stipulated Loss Determination Date in respect of which
such Stipulated Loss Value was determined, the Lessor shall be compensated
during the period from the Stipulated Loss Determination Date to such payment
date in accordance with the provisions of the Operative Agreements.
Stipulated Loss Value Determination Date. Each date set forth on
Schedule III of the Lease.
Subordination Agent. First Security Bank, National Association, a
national banking association, not in its individual capacity but solely as
Subordination Agent.
Supplemental Rent. (a) All amounts, liabilities and obligations
which the Lessee assumes or agrees to perform or pay under the Lease or under
the Participation Agreement or Tax Indemnity Agreement or any Ancillary
Agreement or any other Operative Agreement to the Lessor, the Owner
Participant, the Indenture Trustee, the Subordination Agent, any Liquidity
Provider or others, including, without limitation, payments of Stipulated Loss
Value, FPO Price and amounts calculated by reference to Termination Value, any
amounts of Make-Whole Premium payable under the Indenture to the extent
provided in Section 3.03 of the Lease, and all amounts required to be paid by
Lessee under the agreements, covenants and indemnities contained in the Lease
or in the Participation Agreement or the Tax Indemnity Agreement or any other
Operative Agreement, but excluding Basic Rent and (b) all amounts that the
Owner Trustee is obligated to pay in accordance with clause (b) of the last
paragraph of Section 2.04 of the Indenture.
Tax. Has the meaning set forth in Section 8.01(a) of the
Participation Agreement.
Tax Indemnity Agreement. The Tax Indemnity Agreement (Federal
Express Corporation Trust No. N672FE), dated as of May 1, 1997, between the
Lessee and the Owner Participant.
Term. The Basic Term of the lease for the Aircraft under the Lease
and, if renewed pursuant to Section 4.01 of the Lease, each Renewal Term for
the Aircraft for which the Lease is renewed, or such earlier date on which the
Lease is terminated pursuant to its terms.
Termination Date. A Rent Payment Date during the Basic Term that is
on or after December 31, 2004 in the case of Article 10 of the Lease, and in
the case of (i) Section 4.02(a)(A) of the Lease, the Rent Payment Date falling
on July 15, 2014, (ii) Section 4.02(a)(D) or (E) of the Lease, a Rent
Payment Date that is on or after the seventh anniversary of the Delivery Date
and (iii) Section 4.02(a)(F) of the Lease, the last day of the Basic Term.
Termination Value. As of any Termination Date, the amount determined
by multiplying the Purchase Price by the percentage set forth in Schedule IV
of the Lease under the heading "Termination Value Factor" opposite such
Termination Date (as such Schedule IV may be adjusted from time to time as
provided in Section 3.04 of the Lease). Notwithstanding any other provisions
of the Lease, the Participation Agreement or the Indenture, each Termination
Value shall be, under any circumstances and in any event, an amount, together
with so much of the arrears portion of Basic Rent due and owing through the
date of payment of any amount calculated by reference to Termination Value as
does not constitute an Excepted Payment, at least sufficient to pay in full as
of such date of payment the aggregate unpaid principal amount of and accrued
interest on the Certificates outstanding on such date of payment. Subject to
the immediately preceding sentence, it is understood and agreed that the
amounts set forth on Schedule IV of the Lease, for dates other than Rent
Payment Dates on which arrears Basic Rent is due, fully reflect appropriate
Basic Rent accruals and credits of unearned Basic Rent through such date and,
accordingly, no further accrual or credit shall be required through such date
whenever Termination Value is to be calculated with reference to any such
date; provided that if amounts in respect of Termination Value are payable
under the Operative Agreements after the Termination Date in respect of which
such Termination Value was determined, the Lessor shall be compensated during
the period from the Termination Date to such payment date in accordance with
the provisions of the Operative Agreements.
Transaction Costs. Those costs and expenses set forth in Section
10.01(a) of the Participation Agreement.
Transportation Code. Title 49 of the United States Code, as amended
and in effect on the date of the Lease or as subsequently amended, or any
successor or substituted legislation at the time in effect and applicable, and
the regulations promulgated pursuant thereto.
Treasury Yield. At the time of determination with respect to any
Certificate, the interest rate (expressed as a semi-annual equivalent and as a
decimal and, in the case of United States Treasury bills, converted to a bond
equivalent yield) determined to be the per annum rate equal to the semi-annual
yield to maturity for United States Treasury securities maturing on the
Average Life Date on such Certificate and trading in the public securities
markets either as determined by interpolation between the most recent weekly
average yield to maturity for two series of United States Treasury securities,
trading in public securities markets, (i) one maturing as close as possible to,
but earlier than, the Average Life Date of such Certificate and (ii) the other
maturing as close as possible to, but later than, the Average Life Date of
such Certificate. In each case as published in the most recent H.15(519) or,
if a weekly average yield to maturity for United States Treasury securities
maturing on the Average Life Date of such Certificate is reported on the most
recent H.15 (519), such weekly average yield to maturity as published in such
H.15(919). "H.15(519)" means the weekly statistical release designated as
such, or any successor publication, published by the Board of Governors of the
Federal Reserve System. The date of determination of a Make-Whole Premium
will be the third Business Day prior to the applicable prepayment date and the
"most recent H.15(519)" means the H.15(519) published prior to the close of
business on the third Business Day prior to the applicable prepayment date.
Trust Agreement. The Trust Agreement (Federal Express Corporation
Trust No. N672FE), dated as of May 1, 1997, between the Owner Participant and
the Owner Trustee in its individual capacity.
Trust Estate. The Lessor's Estate.
Trust Indenture Act. The Trust Indenture Act of 1939, as amended.
Trust Indenture Estate. All estate, right, title and interest of the
Indenture Trustee in and to any of the property, rights, interests and
privileges granted to the Indenture Trustee pursuant to the Granting Clause of
the Indenture, other than Excepted Payments and any and all other rights of
the Owner Trustee or the Owner Participant expressly reserved to the Owner
Trustee or the Owner Participant pursuant to the Indenture.
Underwriters. Morgan Stanley & Co. Incorporated, First Chicago
Capital Markets, Inc., Goldman, Sachs & Co. and J.P. Morgan & Co.
Underwriting Agreement. The Underwriting Agreement dated May 22, 1997
among the Lessee and the Underwriters.
United States, U.S. or US. The United States of America.
U.S. Air Carrier. Any United States air carrier as to which there is
in force a certificate issued pursuant to Section 41102(a) or Section 41103 of
the Transportation Code, and as to which there is in force an air carrier
operating certificate issued pursuant to Chapter 447 of the Transportation
Code and Part 121 of the regulations under such Transportation Code, for
aircraft capable of carrying ten (10) or more individuals or 6,000 pounds or
more of cargo, or which may operate as an air carrier by certification or
otherwise under any successor or substitute provision thereof or in absence
thereof.
U.S. Person. A Person described in Section 7701(a)(30) of the Code.
- ------------------------------------------------------------------------------
TRUST INDENTURE AND SECURITY AGREEMENT
(Federal Express Corporation Trust No. N673FE)
Dated as of May 1, 1997
between
STATE STREET BANK AND TRUST COMPANY OF CONNECTICUT,
NATIONAL ASSOCIATION,
Not in its Individual
Capacity, but solely
As Owner Trustee,
Owner Trustee
and
FIRST SECURITY BANK, NATIONAL ASSOCIATION,
Not in its Individual
Capacity, but solely
As Indenture Trustee,
Indenture Trustee
COVERING ONE AIRBUS A300F4-605R AIRCRAFT
SERIAL NO. 780, REGISTRATION NO. N673FE
==============================================================================
TABLE OF CONTENTS
Page
Initial Recitals......................................................... 1
Granting Clause.......................................................... 2
Habendum Clause.......................................................... 6
ARTICLE I
DEFINITIONS
Section 1.01. Definitions.............................................. 8
ARTICLE II
ISSUE, EXECUTION, FORM AND
REGISTRATION OF CERTIFICATES;
COLLATERAL ACCOUNT
Section 2.01. Authentication and Delivery of Certificates.............. 8
Section 2.02. Execution of Certificates................................ 9
Section 2.03. Certificate of Authentication............................ 9
Section 2.04. Form and Terms of Certificates; Payments of Principal,
Make-Whole Premium and Interest.......................... 9
Section 2.05. Payments from Trust Indenture Estate Only................ 12
Section 2.06. Registration, Transfer and Exchange...................... 13
Section 2.07. Mutilated, Defaced, Destroyed, Lost and Stolen
Certificates............................................. 14
Section 2.08. Cancellation of Certificates; Destruction Thereof........ 15
Section 2.09. Temporary Certificates................................... 15
Section 2.10. Termination of Interest in Trust Indenture Estate........ 16
Section 2.11. Certificates in Respect of Replacement Aircraft.......... 16
Section 2.12. Assumption of Obligations Under Certificates and Other
Operative Agreements..................................... 16
Section 2.13. Establishment of Collateral Account...................... 16
Section 2.14. Investment of Funds on Deposit in the Collateral Account. 17
Section 2.15. Release of Debt Portion and Lien on the Collateral Account
and the Liquid Collateral on Delivery Date............... 18
Section 2.16. Cut-Off Date............................................. 19
Section 2.17. Subordination............................................ 19
ARTICLE III
COVENANTS
Section 3.01. Payment of Principal, Make-Whole Premium and Interest.... 19
Section 3.02. Offices for Payments, etc................................ 20
Section 3.03. Appointment to Fill a Vacancy in Office of Indenture
Trustee.................................................. 20
Section 3.04. Paying Agents............................................ 20
Section 3.05. Covenants of SSB and the Owner Trustee................... 21
Section 3.06. [Reserved]............................................... 21
Section 3.07. Disposal of Trust Indenture Estate....................... 22
Section 3.08. No Representations or Warranties as to Aircraft or
Documents................................................ 22
Section 3.09. Further Assurances; Financing Statements................. 22
ARTICLE IV
HOLDER LISTS
Section 4.01. Holder Lists; Ownership of Certificates.................. 23
ARTICLE V
RECEIPT, DISTRIBUTION AND APPLICATION OF
INCOME FROM THE TRUST INDENTURE ESTATE
Section 5.01. Basic Rent Distribution.................................. 23
Section 5.02. Event of Loss and Replacement; Prepayment................ 24
Section 5.03. Payment After Indenture Event of Default, etc............ 25
Section 5.04. Certain Payments......................................... 27
Section 5.05. Other Payments........................................... 28
Section 5.06. Payments to Owner Trustee................................ 28
Section 5.07. Application of Payments.................................. 28
Section 5.08. Investment of Amounts Held by Indenture Trustee.......... 29
Section 5.09. Withholding Taxes........................................ 30
ARTICLE VI
PREPAYMENT OF CERTIFICATES
Section 6.01. No Prepayment Prior to Maturity.......................... 30
Section 6.02. Prepayment of Certificates............................... 30
Section 6.03. Notice of Prepayment to Holders.......................... 32
Section 6.04. Deposit of Prepayment Price and Sinking Fund Redemption
Price.................................................... 33
Section 6.05. Certificates Payable on Prepayment Date.................. 33
Section 6.06. Mandatory Sinking Fund Redemption........................ 33
ARTICLE VII
INDENTURE EVENTS OF DEFAULT; REMEDIES
OF INDENTURE TRUSTEE AND HOLDERS
Section 7.01. Indenture Event of Default............................... 35
Section 7.02. Remedies................................................. 38
Section 7.03. Return of Aircraft, etc.................................. 40
Section 7.04. Indenture Trustee May Prove Debt......................... 42
Section 7.05. Remedies Cumulative...................................... 44
Section 7.06. Suits for Enforcement.................................... 44
Section 7.07. Discontinuance of Proceedings............................ 45
Section 7.08. Limitations on Suits by Holders.......................... 45
Section 7.09. Unconditional Right of Holders to Receive Principal,
Interest and Make-Whole Premium, and to Institute
Certain Suits............................................ 45
Section 7.10. Control by Holders....................................... 46
Section 7.11. Waiver of Past Indenture Default......................... 46
Section 7.12. Notice of Indenture Default.............................. 47
ARTICLE VIII
RIGHTS OF THE OWNER TRUSTEE
AND THE OWNER PARTICIPANT
Section 8.01. Certain Rights of Owner Trustee and Owner Participant.... 47
Section 8.02. Owner Participant's Right to Elect to Prepay or Purchase the
Certificates............................................. 50
Section 8.03. Certain Rights of Owner Participant...................... 52
ARTICLE IX
CONCERNING THE INDENTURE TRUSTEE
Section 9.01. Acceptance of Trusts..................................... 53
Section 9.02. Duties and Responsibilities of the Indenture Trustee;
During an Indenture Event of Default; Prior to an
Indenture Event of Default............................... 54
Section 9.03. Certain Rights of the Indenture Trustee.................. 56
Section 9.04. Indenture Trustee Not Responsible for Recitals, Disposition
of Certificates or Application of Proceeds Thereof....... 57
Section 9.05. Indenture Trustee and Agents May Hold Certificates;
Collections, etc......................................... 57
Section 9.06. Moneys Held by Indenture Trustee......................... 57
Section 9.07. Right of Indenture Trustee to Rely on Officer's
Certificate, etc......................................... 57
Section 9.08. Replacement Airframes and Replacement Engines............ 58
Section 9.09. Indenture and Security Agreement Supplement for
Replacements............................................. 61
Section 9.10. Effect of Replacement.................................... 61
Section 9.11. Compensation............................................. 61
ARTICLE X
CONCERNING THE HOLDERS
Section 10.01. Evidence of Action Taken by Holders..................... 62
Section 10.02. Proof of Execution of Instruments and of Holding of
Certificates............................................ 62
Section 10.03. Holders to Be Treated as Owners......................... 63
Section 10.04. Certificates Owned by Owner Trustee and the Lessee Deemed
Not Outstanding......................................... 63
Section 10.05. Right of Revocation of Action Taken..................... 64
Section 10.06. ERISA................................................... 64
ARTICLE XI
INDEMNIFICATION OF INDENTURE
TRUSTEE BY OWNER TRUSTEE
ARTICLE XII
SUCCESSOR TRUSTEES
Section 12.01. Notice of Successor Owner Trustee....................... 66
Section 12.02. Resignation and Removal of Indenture Trustee;
Appointment of Successor................................ 66
Section 12.03. Persons Eligible for Appointment as Indenture Trustee... 67
Section 12.04. Acceptance of Appointment by Successor Trustee.......... 67
Section 12.05. Merger, Conversion, Consolidation or Succession to Business
of Indenture Trustee.................................... 68
Section 12.06. Appointment of Separate Trustees........................ 69
ARTICLE XIII
SUPPLEMENTS AND AMENDMENTS TO THIS
TRUST INDENTURE AND OTHER DOCUMENTS
Section 13.01. Supplemental Indentures Without Consent of Holders...... 71
Section 13.02. Supplemental Indentures With Consent of Holders......... 72
Section 13.03. Effect of Supplemental Indenture........................ 74
Section 13.04. Documents to Be Given to Indenture Trustee.............. 74
Section 13.05. Notation on Certificates in Respect of Supplemental
Indentures.............................................. 74
Section 13.06. No Request Necessary for Lease Supplement or Indenture and
Security Agreement Supplement........................... 74
Section 13.07. Notices to Liquidity Providers.......................... 74
ARTICLE XIV
SATISFACTION AND DISCHARGE OF INDENTURE;
UNCLAIMED MONEYS
Section 14.01. Satisfaction and Discharge of Indenture; Termination of
Indenture............................................... 75
Section 14.02. Application by Indenture Trustee of Funds Deposited for
Payment of Certificates................................. 76
Section 14.03. Repayment of Moneys Held by Paying Agent................ 76
Section 14.04. Transfer of Moneys Held by Indenture Trustee and Paying
Agent Unclaimed for Two Years and Eleven Months......... 76
ARTICLE XV
MISCELLANEOUS
Section 15.01. Capacity in Which Acting................................ 77
Section 15.02. No Legal Title to Trust Indenture Estate in Holders..... 77
Section 15.03. Sale of Trust Indenture Estate by Indenture Trustee is
Binding................................................. 77
Section 15.04. Indenture for Benefit of Owner Trustee, Indenture Trustee,
Owner Participant, Holders and Liquidity Providers...... 77
Section 15.05. No Action Contrary to the Lessee's Rights Under the
Lease................................................... 78
Section 15.06. Notices................................................. 78
Section 15.07. Officer's Certificates and Opinions of Counsel; Statements
to Be Contained Therein................................. 79
Section 15.08. Severability............................................ 80
Section 15.09. No Oral Modifications or Continuing Waivers............. 80
Section 15.10. Successors and Assigns.................................. 80
Section 15.11. Headings................................................ 80
Section 15.12. Normal Commercial Relations............................. 80
Section 15.13. Governing Law; Counterparts............................. 80
Exhibit A -- Form of Indenture and Security Agreement Supplement
Exhibit B -- Form of Certificate
Schedule I -- [Reserved]
Schedule II -- Definitions
TRUST INDENTURE AND SECURITY AGREEMENT
(FEDERAL EXPRESS CORPORATION TRUST NO. N673FE)
TRUST INDENTURE AND SECURITY AGREEMENT (FEDERAL EXPRESS CORPORATION
TRUST NO. N673FE) dated as of May 1, 1997 (the "Indenture"), between STATE
STREET BANK AND TRUST COMPANY OF CONNECTICUT, NATIONAL ASSOCIATION, a national
banking association, not in its individual capacity, except as otherwise
specifically set forth herein (when acting in such individual capacity,
"SSB"), but solely as owner trustee (the "Owner Trustee") under the Trust
Agreement, as defined herein, and FIRST SECURITY BANK, NATIONAL ASSOCIATION, a
national banking association, as Indenture Trustee hereunder (the "Indenture
Trustee").
W I T N E S S E T H:
-------------------
WHEREAS, capitalized terms used herein shall have the respective
meanings set forth or referred to in Article I hereof;
WHEREAS, the Owner Participant and SSB have, immediately prior to the
execution and delivery of this Indenture, entered into a Trust Agreement
(Federal Express Corporation Trust No. N673FE) dated as of the date hereof (as
amended or otherwise modified from time to time in accordance with the
provisions thereof and of the Participation Agreement, the "Trust Agreement"),
whereby, among other things, SSB has declared a certain trust for the use and
benefit of the Owner Participant, subject, however, to the Lien of this
Indenture for the use and benefit of, and with the priority of payment to, the
holders of the Certificates issued hereunder, and the Owner Trustee is
authorized and directed to execute and deliver this Indenture;
WHEREAS, the Owner Trustee desires by this Indenture, among other
things (i) to provide for the issuance by the Owner Trustee of Certificates as
provided in the Participation Agreement, and (ii) to provide for the
assignment, mortgage and pledge by the Owner Trustee to the Indenture Trustee,
as part of the Trust Indenture Estate hereunder of the Owner Trustee's right,
title and interest in the Liquid Collateral and after the Delivery Date for
the assignment, mortgage and pledge by the Owner Trustee to the Indenture
Trustee, as part of the Trust Indenture Estate hereunder, of among other
things, certain of the Owner Trustee's estate, right, title and interest in
and to the Aircraft and the Indenture Documents and certain payments and other
amounts (other than Excepted Payments) received hereunder or thereunder in
accordance with the terms hereof, as security for, among other things, the
Owner Trustee's obligations to the Certificate Holders and for the benefit and
security of such Holders;
WHEREAS, all things have been done to make the Certificates, when
executed by the Owner Trustee, and authenticated, issued and delivered
hereunder, the valid obligations of the Owner Trustee; and
WHEREAS, all things necessary to make this Indenture the valid,
binding and legal obligation of the Owner Trustee, enforceable in accordance
with its terms, have been done and performed and have happened.
NOW, THEREFORE, the parties agree as follows:
GRANTING CLAUSE
NOW, THEREFORE, in consideration of the mutual promises contained
herein and to secure (i) the prompt payment of the principal of and Make-Whole
Premium, if any, and interest on, and all other amounts due with respect to,
all the Certificates from time to time outstanding under this Indenture and
all other amounts due hereunder and (ii) the performance and observance by the
Owner Trustee of all the agreements, covenants and provisions in this
Indenture, in the Certificates, in the Participation Agreement and in the
Lease contained for the benefit of the Holders of the Certificates, and the
prompt payment of any and all amounts from time to time owing under the
Participation Agreement by the Owner Trustee, the Owner Participant or the
Lessee to the Holders (collectively the "Secured Obligations") and for the uses
and purposes and subject to the terms and provisions of this Indenture, and in
consideration of the premises and of the covenants in this Indenture and in the
Certificates and of the purchase of the Certificates by their Holders, and of
the sum of $1 paid to the Owner Trustee by the Indenture Trustee at or before
the delivery of this Indenture, the receipt and sufficiency of which is hereby
acknowledged, the Owner Trustee has granted, bargained, sold, assigned,
transferred, conveyed, mortgaged, pledged, granted a first priority security
interest in and confirmed, and does hereby grant, bargain, sell, assign,
transfer, convey, mortgage, pledge and grant a first priority security
interest in and confirm to the Indenture Trustee, its successors and assigns,
in trust for the equal and ratable security and benefit of the Holders from
time to time of the Certificates, a first priority security interest in and
first mortgage Lien on all estate, right, title and interest of the Owner
Trustee in, to and under the following described property, rights and
privileges other than Excepted Payments, which collectively, excluding
Excepted Payments but including all property specifically subjected to the
Lien of this Indenture by the terms hereof, by any Indenture and Security
Agreement Supplement or any mortgage supplemental to this Indenture, are
included within the Trust Indenture Estate, subject always to the rights
granted to the Owner Trustee or the Owner Participant hereunder and to the
other terms and conditions of this Indenture:
(1) The Airframe, as the same is more particularly described in the
Indenture and Security Agreement Supplement and any airframe substituted in
replacement thereof pursuant to the provisions of this Indenture; the Engines,
as the same are more particularly described in the Indenture and Security
Agreement Supplement, whether or not such Engines shall be installed in or
attached to the Airframe or any other airframe, and any Replacement Engine
therefor; and all Parts in respect of the Airframe and the Engines and all
records, logs and other documents at any time maintained with respect to the
foregoing property;
(2) The Lease and all Rent thereunder, including, without limitation,
all amounts of Basic Rent and Supplemental Rent, and payments of any kind
thereunder and including all rights of the Owner Trustee to execute any
election or option or to give or receive any notice, consent, waiver or
approval under or in respect of the Lease or to accept any surrender of the
Aircraft or any part thereof as well as any rights, powers or remedies on the
part of the Owner Trustee, whether arising under the Lease or by statute or at
law or in equity or otherwise arising out of any Event of Default;
(3) The Purchase Agreement, the Purchase Agreement Assignment, the
AVSA Consent and Agreement, the Consent and Agreement, the Consent and
Guaranty, the GTA, the Engine Warranty Assignment and the Engine Consent,
AVSA's FAA Bill of Sale, AVSA's Warranty Bill of Sale, the Airbus Guaranty,
the Ancillary Agreements and the Participation Agreement (to the extent of
amounts payable to the Owner Trustee thereunder) (collectively, and together
with the Lease, the Trust Agreement and the Certificates, the "Indenture
Documents"), including all rights of the Owner Trustee to execute any election
or option or to give or receive any notice, consent, waiver or approval under
or in respect of any of the foregoing documents and instruments;
(4) All the tolls, rents, issues, profits, products, revenues and
other income (including sales proceeds) of the property subjected or required
to be subjected to the Lien of this Indenture, and all of the estate, right,
title and interest of the Owner Trustee in and to the same and every part of
said property;
(5) The Collateral Account, the Liquid Collateral and all other
moneys and securities (including Permitted Investments) now or hereafter paid
or deposited or required to be paid or deposited to or with the Indenture
Trustee by or for the account of the Owner Trustee pursuant to any term of any
Operative Agreement, except the Tax Indemnity Agreement, and held or required
to be held by the Indenture Trustee hereunder;
(6) All requisition proceeds with respect to the Aircraft or any part
thereof (to the extent of the Owner Trustee's interest therein pursuant to the
terms of the Lease) and all insurance proceeds with respect to the Aircraft or
any part thereof from insurance required to be maintained by the Lessee under
Article 13 of the Lease, but excluding any insurance maintained by the Lessee
and not required under Article 13 of the Lease; and
(7) All proceeds of the foregoing.
EXCLUDING, HOWEVER, from the foregoing grant of the Lien and security
interest of this Indenture and from the Trust Indenture Estate, (i) all
Excepted Payments, including without limitation all right, title and interest
of the Owner Participant in, to and under the Tax Indemnity Agreement and any
moneys due or to become due under the Tax Indemnity Agreement and all rights
to collect and enforce Excepted Payments and (ii) rights granted to or
retained by the Owner Trustee or the Owner Participant hereunder and SUBJECT
TO the following provisions:
(a) (i) whether or not an Indenture Event of Default shall occur and
be continuing, the Owner Trustee and the Owner Participant shall at all times
retain the right, to the exclusion of the Indenture Trustee, (A) to Excepted
Payments and to commence an action at law to obtain or otherwise demand, sue
for or receive and enforce the payment of such Excepted Payments, (B) to
exercise any election or option or make any decision or determination or to
give or receive any notice (including notice of Default), consent, waiver or
approval in respect of any such Excepted Payment, (C) to adjust (and make any
decision or determination or give any notice or consent with respect to) Basic
Rent and the percentages relating to Stipulated Loss Value and Termination
Value and the FPO Price as provided in Section 3.04 of the Lease and Section
15.01 of the Participation Agreement, (D) to exercise any election or option to
make any decision or determination, or to give or receive any notice, consent,
waiver or approval, or to take any other action in respect of, but in each
case only to the extent relating to, Excepted Payments (except for, in respect
of any portion of Basic Rent constituting an Excepted Payment, any action
changing the manner by which such Basic Rent is to be paid), (E) to retain the
rights of the "Lessor" with respect to solicitations of bids, and the election
to retain the Aircraft pursuant to Article 10 of the Lease, (F) to retain the
right of "Lessor" to determine the Fair Market Rental or Fair Market Value
pursuant to Article 4 of the Lease, (G) to exercise all other rights of the
Lessor under Articles 4 and 10 of the Lease with respect to the retention or
purchase by the Lessee or the Lessor of the Aircraft or the exercise by the
Lessee of the Lessee's renewal or purchase options, (H) to retain all rights
with respect to insurance maintained for its own account which Section 13.05
of the Lease specifically confers on the "Lessor", (I) to approve appraisers,
lawyers and other professionals and receive notices, certificates, reports,
filings, opinions and other documents, in each case with respect to matters
relating to the Owner Participant's tax position, (J) to approve any
accountants to be used in the verification of any Rent adjustment, and (K) to
exercise, to the extent necessary to enable it to exercise its rights under
Section 8.03 hereof, the rights of the "Lessor" under Section 17.04 of the
Lease;
(ii) whether or not an Indenture Event of Default shall occur and be
continuing, the Owner Trustee and the Indenture Trustee shall each have the
rights separately but not to the exclusion of the other (agreement of both
required in the case of clause (E) below), (A) to receive from the Lessee all
notices, certificates, reports, filings, opinions of counsel, copies of all
documents and all information which the Lessee is permitted or required to
give or furnish to the "Lessor" pursuant to the Lease or to the Owner Trustee
pursuant to any other Operative Agreement, (B) to exercise inspection rights
pursuant to Section 14.01 of the Lease (provided that if an Indenture Event of
Default shall be continuing, no inspection right of the Owner Trustee shall
interfere with the efforts of the Indenture Trustee to exercise remedies under
the Lease or this Indenture), (C) to maintain separate insurance pursuant to
Section 13.05 of the Lease and to retain all rights with respect to such
insurance maintained for its own account, (D) to give any notice of default
under Section 16.01 of the Lease and (E) the right to consent to changes to
the list of countries on Schedule III to the Participation Agreement;
(iii) subject to the last sentence of this clause (a), (A) so long as
no Indenture Event of Default not constituting an Event of Default shall have
occurred and be continuing (but subject to the provisions of Section 8.01
hereof), the Owner Trustee shall retain the right, to the exclusion of the
Indenture Trustee (or, if an Indenture Event of Default that is also an Event
of Default shall have occurred and be continuing, acting jointly with and not
to the exclusion of the Indenture Trustee), to exercise all rights, elections
and options of the Lessor in connection with the return of the Aircraft under
Article 12 of the Lease (but not Article 17 thereof, it being understood that
the Indenture Trustee shall have the exclusive right to exercise remedies
pursuant to such Article 17, including in respect of any related return of the
Aircraft pursuant to Article 12 of the Lease), including the right to approve
as satisfactory any accountants, engineers, appraisers or counsel to render
services for or issue appraisals, reports, certificates or opinions to the
Owner Trustee and to exercise all rights, elections and options of the Lessor
in connection with the return of the Aircraft pursuant to the express
provisions of the Operative Agreements, and (B) so long as no Indenture Event
of Default not constituting an Event of Default shall have occurred and be
continuing (but subject to the provisions of Section 8.01 hereof), the Owner
Trustee shall retain the right, jointly with the Indenture Trustee (agreement
of both not being required), to further assurances and financial information
from the Lessee pursuant to Section 19.01 of the Lease (other than the right
to receive any funds to be delivered to the "Lessor" under the Lease (except
funds delivered with respect to Excepted Payments) and under the Purchase
Agreement;
(iv) subject to the last sentence of this clause (a), at all times
the Owner Trustee shall have the right as Lessor, but not to the exclusion of
the Indenture Trustee, to seek specific performance of the covenants of the
Lessee under the Lease relating to the protection, insurance, maintenance,
possession and use of the Aircraft; and
(v) at all times the Owner Trustee and the Owner Participant shall
have the rights granted to them under Articles VI, VIII and X and Section 7.02
hereof.
Notwithstanding the foregoing, but subject always to the provisions of Section
15.05 hereof, the Indenture Trustee shall at all times have the right, to the
exclusion of the Owner Trustee and the Owner Participant, to (A) (other than
with respect to Excepted Payments) declare the Lease to be in default under
Article 17 thereof or any statute (including, without limitation, Article 2-A
of the Uniform Commercial Code) and (B) subject only to the provisions of this
Indenture, (other than in connection with Excepted Payments) exercise the
remedies set forth in such Article 17 of the Lease any statute (including
without limitation Article 2-A of the Uniform Commercial Code), at law and in
Article 7 hereof.
(b) The foregoing provisions in paragraph (a) above shall be equally
applicable to all rights of the Indenture Trustee in respect of Ancillary
Agreement I and Ancillary Agreement II, whether such rights are granted
directly to the Indenture Trustee under such agreements or are granted under
the Granting Clause of this Indenture.
(c) The leasehold interest granted to the Lessee by the Lease shall
not be subject to the security interest granted by this Indenture, and nothing
in this Indenture shall affect the rights of the Lessee under the Lease so
long as no Event of Default has occurred and is continuing.
HABENDUM CLAUSE
TO HAVE AND TO HOLD the aforesaid property unto the Indenture Trustee,
its successors and assigns, in trust for the equal and ratable benefit and
security of the Holders from time to time of the Certificates, without any
priority of any one Certificate over any other and for the uses and purposes
and subject to the terms and conditions set forth in this Indenture and the
rights of the Owner Trustee and the Owner Participant under this Indenture.
It is expressly agreed that anything contained in this Indenture to
the contrary notwithstanding, the Owner Trustee shall remain liable under the
Indenture Documents to perform all of the obligations assumed by it under any
of those documents, all in accordance with and pursuant to the terms and
provisions of those documents, and the Indenture Trustee and the Holders of
the Certificates shall have no obligation or liability under the Indenture
Documents by reason of or arising out of the assignment under this Indenture,
nor shall the Indenture Trustee or the Holders of the Certificates be required
or obligated in any manner to perform or fulfill any obligations of the Owner
Trustee under or pursuant to the Indenture Documents or, except as expressly
provided in this Indenture, to make any payment, or to make any inquiry as to
the nature or sufficiency of any payment received by it, or present or file
any claim, or take any action to collect or enforce the payment of any amounts
which may have been assigned to it or to which it may be entitled at any time
or times.
Effective upon the occurrence and continuance of an Indenture Event of
Default, the Owner Trustee hereby constitutes the Indenture Trustee the true
and lawful attorney of the Owner Trustee, irrevocably, with full power (in the
name of the Owner Trustee or otherwise), subject to the terms and conditions
of this Indenture, to ask, require, demand, receive, compound and give
acquittance for any and all Basic Rent, Supplemental Rent payable to the Owner
Trustee, Stipulated Loss Value and Termination Value payments, insurance
proceeds and any and all moneys and claims for moneys due and to become due
under or arising out of the Lease (subject to Section 8.01 hereof) or the
other Indenture Documents (other than Excepted Payments), to endorse any
checks or other instruments or orders in connection with the same and to file
any claims, take any action or institute any proceeding which the Indenture
Trustee may deem to be necessary or advisable in the premises.
Under the Lease the Lessee is directed to make all payments of Rent
(other than Excepted Payments not constituting Basic Rent) payable to the
Owner Trustee and all other amounts (other than Excepted Payments not
constituting Basic Rent) which are required to be paid to or deposited with
the Owner Trustee pursuant to the Lease directly to the Indenture Trustee at
such address in the United States of America as the Indenture Trustee shall
specify for application as provided in this Indenture. The Owner Trustee
agrees that if, notwithstanding such provision, it shall have received any
such amounts, promptly on receipt of any such payment, it will transfer to the
Indenture Trustee any and all moneys from time to time received by the Owner
Trustee constituting part of the Trust Indenture Estate for distribution by
the Indenture Trustee pursuant to this Indenture, except that the Owner
Trustee shall accept for distribution pursuant to the Trust Agreement (i) any
amounts distributed to it by the Indenture Trustee under this Indenture, and
(ii) any Excepted Payments not constituting Basic Rent.
The Owner Trustee agrees that at any time and from time to time, upon
the written request of the Indenture Trustee, the Owner Trustee will, at the
expense of the Lessee, promptly and duly execute and deliver or cause to be
duly executed and delivered any and all such further instruments and documents
as the Indenture Trustee may reasonably deem desirable in obtaining the full
benefits of the assignment hereunder and of the rights and powers herein
granted; provided, however, that the Owner Trustee shall have no obligation to
execute and deliver or cause to be executed or delivered to the Indenture
Trustee any such instrument or document if such execution and delivery would
result in the imposition of additional liabilities on the Owner Trustee or the
Owner Participant or would result in a burden on the Owner Participant's
business activities, unless the Owner Trustee or the Owner Participant, as the
case may be, is indemnified to its reasonable satisfaction against any losses,
liabilities and expenses incurred in connection with such execution and
delivery.
The Owner Trustee does hereby warrant and represent that it has not
assigned, pledged or otherwise disposed of, and hereby covenants that it will
not assign or pledge or otherwise dispose of, so long as the assignment
hereunder shall remain in effect and shall not have been terminated pursuant
to Section 14.01 hereof, any of its right, title or interest hereby assigned,
to anyone other than the Indenture Trustee, and that it will not, except in
respect of Excepted Payments or otherwise as provided in or permitted by this
Indenture, enter into an agreement amending or supplementing any of the
Indenture Documents, settle or compromise any claim (other than claims in
respect of Excepted Payments) against the Lessee arising under any of the
Indenture Documents, or submit or consent to the submission of any dispute,
difference or other matter arising under or in respect of any of the Indenture
Documents, to arbitration thereunder.
Concurrently with the delivery of this Indenture, the Owner Trustee
has delivered to the Indenture Trustee executed counterparts of the Trust
Agreement and the chattel paper original counterpart of the Lease.
It is hereby further covenanted and agreed by and between the parties
as follows:
ARTICLE I
DEFINITIONS
Section 1.01. Definitions. Unless the context otherwise requires,
capitalized terms utilized herein shall have the meanings set forth in
Schedule II hereto for all purposes of this Indenture and shall be equally
applicable to both the singular and plural forms of the terms defined.
ARTICLE II
ISSUE, EXECUTION, FORM AND
REGISTRATION OF CERTIFICATES;
COLLATERAL ACCOUNT
Section 2.01. Authentication and Delivery of Certificates.
Forthwith upon the execution and delivery of this Indenture, and from time to
time thereafter, Certificates in an aggregate principal amount not in excess
of the amount specified in Section 2.04 hereof (except as otherwise provided
in Sections 2.06 and 2.07 hereof) shall be executed by the Owner Trustee and
delivered to the Indenture Trustee for authentication, and the Indenture
Trustee shall thereupon authenticate and deliver said Certificates to or upon
the oral or written order of the Owner Trustee, signed, if written, by an
authorized officer of the Owner Trustee, without any further action by the
Owner Trustee.
Section 2.02. Execution of Certificates. The Certificates shall be
signed on behalf of the Owner Trustee by an authorized officer of SSB. Such
signatures may be the manual or facsimile signatures of such officer and minor
errors or defects in any reproduction of any such signature shall not affect
the validity or enforceability of any Certificate which has been duly
authenticated and delivered by the Indenture Trustee.
In case any officer of SSB who shall have signed any of the
Certificates shall cease to be such officer before the Certificate so signed
shall be authenticated and delivered by the Indenture Trustee or disposed of
by SSB, such Certificate nevertheless may be authenticated and delivered or
disposed of as though the person who signed such Certificate had not ceased to
be such officer of SSB; and any Certificate may be signed on behalf of the
Owner Trustee by such person or persons as, at the actual date of the
execution of such Certificate, shall be the proper officers of SSB, although
at the date of the execution and delivery of this Indenture any such person
was not such an officer. Certificates bearing the facsimile signatures of
individuals who were authorized officers of SSB at the time such Certificates
were issued shall bind the Owner Trustee, notwithstanding that such
individuals or any of them have ceased to hold such offices prior to the
authentication and delivery of such Certificates or did not hold such offices
at the respective dates of such Certificates.
Section 2.03. Certificate of Authentication. Only such Certificates
as shall bear thereon a certificate of authentication substantially in the
form set forth in Exhibit B, executed by the Indenture Trustee by manual
signature of one of its authorized officers, shall be entitled to the security
and benefits of this Indenture or be valid or obligatory for any purpose.
Such certificate by the Indenture Trustee upon any Certificate executed by the
Owner Trustee shall be conclusive evidence that the Certificate so
authenticated has been duly authenticated and delivered hereunder and that the
Holder, as evidenced on the Register, is entitled to the security and benefits
of this Indenture.
Section 2.04. Form and Terms of Certificates; Payments of Principal,
Make-Whole Premium and Interest. The Certificates and the Indenture Trustee's
certificate of authentication shall be substantially in the form set forth in
Exhibit B hereto. Certificates may differ with respect to Maturity (subject
to Section 15.01(d) of the Participation Agreement) and as to other terms.
The Certificates shall be issuable as registered securities without coupons
and shall be numbered, lettered, or otherwise distinguished in such manner or
in accordance with such plans as the Owner Trustee executing the same may
determine with the approval of the Indenture Trustee.
The aggregate principal amount of Certificates that may be
authenticated and delivered under this Indenture is limited as provided in the
form of Certificate attached as Exhibit B hereto. The Certificates shall be
issued in registered form only and in denominations of $1,000 and any integral
multiple thereof, shall be dated the Certificate Closing Date, shall be issued
in three separate series consisting of Series A, Series B and Series C and
shall be issued in the Maturities and principal amounts, and shall bear
interest at the rates per annum, specified in the form of Certificate set forth
in Exhibit B.
Any of the Certificates may be issued with appropriate insertions,
omissions, substitutions and variations, and may have imprinted or otherwise
reproduced thereon such legend or legends, not inconsistent with the
provisions of this Indenture, as may be required to comply with any law or
with any rules or regulations pursuant thereto, or with the rules of any
securities market in which the Certificates are admitted to trading, or to
conform to general usage.
Each Certificate shall bear interest from the date of original
issuance thereof or from the most recent date to which interest has been paid
and duly provided for, as the case may be, which shall be payable on the dates
specified on the face of the form of Certificate set forth in Exhibit B hereto
until the principal thereof is paid. Interest shall be calculated on the
basis of a 360-day year of twelve 30-day months.
Notwithstanding the preceding paragraph, each Certificate shall bear
interest at the Past Due Rate on any principal, interest and any other amount
payable hereunder or under such Certificate, which shall not be paid in full
when due (whether at stated maturity, by acceleration, by mandatory prepayment
or otherwise), for the period from and including the due date thereof to but
excluding the date the same is paid in full, payable from time to time on
demand of the Indenture Trustee.
The principal of, and Make-Whole Premium, if any, and interest on, the
Certificates shall be payable at the Corporate Trust Department of the
Indenture Trustee or at any office or agency maintained for such purpose
pursuant to Section 3.02 hereof in immediately available funds prior to 10:30
A.M. (New York time) on the due date thereof and the Indenture Trustee shall
remit all such amounts received by it to the Holders at such account or
accounts at such financial institution or institutions as the Holders shall
have designated to the Indenture Trustee in writing, in immediately available
funds, such payment to be made if the payment was received prior to 10:30 A.M.
New York time by the Indenture Trustee on any Business Day, by 12:00 noon New
York time on such Business Day; otherwise, the Indenture Trustee shall make
payment promptly, but not later than 11:00 A.M. New York time on the next
succeeding Business Day; provided, however, that interest may be payable at the
option of the Indenture Trustee or its Paying Agent, as defined in Section
3.04, by mailing checks for such interest payable to or upon the written order
of the Holders entitled thereto as they shall appear on the Register. If any
amount payable under the Certificates, or under this Indenture, falls due on a
day that is not a Business Day, then such sum shall be payable on the next
succeeding Business Day, without (provided that payment is made on such next
succeeding Business Day) additional interest thereon for the period of such
extension.
The Holder at the close of business on any Record Date with respect
to any Payment Date shall be entitled to receive the interest if any payable
on such Payment Date notwithstanding any transfer or exchange of such
Certificate subsequent to the Record Date and prior to such Payment Date,
except if and to the extent the Owner Trustee shall default in the payment of
the interest due on such Payment Date, in which case such defaulted interest
shall be paid to the Holder at the close of business on a subsequent Record
Date (which shall be not less than five (5) or more than fifteen (15) Business
Days prior to the date of payment of such defaulted interest) established by
notice given by mail by or on behalf of the Owner Trustee to the Holders not
less than fifteen (15) days preceding such subsequent Record Date.
The Owner Trustee agrees to pay to the Indenture Trustee for
distribution in accordance with Section 5.04 hereof (a) any and all indemnity
amounts received by the Owner Trustee which are payable by the Lessee to (i)
the Indenture Trustee in its individual capacity, (ii) the Subordination Agent
or (iii) each Liquidity Provider, in each case pursuant to Article 8 or 9 of
the Participation Agreement (it being acknowledged that the Lessee has been
instructed to pay such amounts to the Person or Persons entitled thereto) and
(b) the Owner Trustee's pro rata share of all amounts owed to each Liquidity
Provider by the Subordination Agent under each Liquidity Facility other than
amounts due as (i) repayments of the principal of advances thereunder, and (ii)
interest on Interest Drawings and Final Drawings except to the extent included
in Net Interest and Related Charges. As used in this Section, the Owner
Trustee's pro rata share means as of any time:
(A) with respect to all amounts other than Net Interest and
Related Charges, a fraction the numerator of which is the aggregate
principal balance then outstanding of the Certificates issued under
this Indenture (other than the Series C Certificates) and the
denominator of which is the aggregate principal balance of all
Certificates issued under this Indenture and the Related Indentures
(other than the Series C Certificates), plus
(B) with respect to all Net Interest and Related Charges (x)
if there exists a Payment Default under any Certificate issued under
this Indenture a fraction, the numerator of which is the aggregate
principal balance then outstanding of Certificates issued under this
Indenture (other than the Series C Certificates) and the denominator
of which is the aggregate principal balance then outstanding of all
Certificates issued under this Indenture and the Related Indentures
(other than the Series C Certificates) under which there exists a
Payment Default or (y) at all other times, zero.
As used in this Section, "Net Interest and Related Charges" means the sum of
(i) the amount, if any, by which interest payable to each Liquidity Provider
on any Interest Drawing and/or Final Drawing exceeds the amount which would be
payable if such drawings bore interest at the weighted average Past Due Rate
applicable to amounts in default on all Certificates plus (ii) any amounts
payable under Section 3.01, Section 3.02, Section 3.03, Section 3.09 or
Section 7.07 of each Liquidity Facility (or similar provisions of any
replacement Liquidity Facility) which result from any Interest Drawing or
Final Drawing. As used in this Section, a Payment Default when used in
connection with a Certificate issued hereunder or a Certificate issued under
any Related Indenture means a default in the payment of principal thereof or
interest thereon (which default has not been cured), other than solely because
of acceleration.
Section 2.05. Payments from Trust Indenture Estate Only. All
payments to be made by the Owner Trustee under this Indenture shall be made
only from the income and the proceeds from the Lessor's Estate to the extent
included in the Trust Indenture Estate and from any other amounts of the type
described in Section 5.01 hereof (but only to the extent actually received by
the Indenture Trustee) and only to the extent that the Owner Trustee shall
have sufficient income or proceeds from the Lessor's Estate to the extent
included in the Trust Indenture Estate (and such other amounts) to enable the
Indenture Trustee to make distributions of the amounts due in respect of the
Certificates in accordance with the terms hereof and thereof. Each Holder by
its acceptance of a Certificate agrees that it will look solely to the income
and proceeds from the Trust Indenture Estate (and such other amounts of the
type described in Section 5.01 hereof but only to the extent actually received
by the Indenture Trustee) to the extent available for distribution to it as
provided herein and that neither the Owner Participant, the Owner Trustee, SSB
nor the Indenture Trustee is personally liable to such Holder for any amounts
payable under this Indenture or such Certificate or for any amounts payable or
liability under any Certificate or this Indenture, except as expressly
provided herein in the case of SSB, the Owner Trustee or the Indenture
Trustee.
SSB is not personally liable to any Holder, the Lessee, the Owner
Participant or the Indenture Trustee for any amounts payable under this
Indenture or for any liability under this Indenture or the Certificates,
except as a result of SSB's gross negligence or willful misconduct, or as
otherwise expressly provided herein or in the Participation Agreement.
If (1) all or any part of the Lessor's Estate becomes the property of
a debtor subject to the reorganization provisions of the Bankruptcy Code, (2)
pursuant to such reorganization provisions the Owner Participant is required,
by reason of the Owner Participant being held to have recourse liability to
the debtor or the trustee of the debtor directly or indirectly, to make
payment on account of any amount payable as principal of or interest,
Make-Whole Premium or other amounts payable on the Certificates, and (3) the
Indenture Trustee actually receives any Recourse Amount which reflects any
payment by the Owner Participant on account of (2) above, then the Indenture
Trustee shall promptly refund to the Owner Participant such Recourse Amount.
Nothing contained in this paragraph shall prevent the Indenture Trustee from
enforcing any personal recourse obligation (and retaining the proceeds
thereof) of the Owner Participant under the Participation Agreement, or from
retaining any amount paid by the Owner Participant under Sections 5.01, 8.02
and 8.03 hereof.
Section 2.06. Registration, Transfer and Exchange. The Indenture
Trustee will keep, on behalf of the Owner Trustee, at each office or agency to
be maintained for the purpose as provided in Section 3.02 hereof a Register or
Registers on which, subject to such reasonable regulations as it may
prescribe, it will register, and will register the transfer of, Certificates
as provided in this Article. Such Register shall be in written form in the
English language or in any other form capable of being converted into such
form within a reasonable period of time.
Upon due presentation for registration of transfer of any Certificate
at any such office or agency, the Owner Trustee shall execute and the
Indenture Trustee shall authenticate and deliver in the name of the transferee
or transferees a new Certificate or Certificates of the same Series and
Maturity, principal amount and interest rate and in authorized denominations
for an equal aggregate principal amount; provided, that such Certificate being
transferred shall be cancelled in accordance with Section 2.08 hereof
simultaneously with the issuance of the new Certificate.
Any Certificate or Certificates may be exchanged for a Certificate or
Certificates of the same Series and Maturity and interest rate but in other
authorized denominations, in an equal aggregate principal amount.
Certificates to be exchanged shall be surrendered at any office or agency to
be maintained by the Indenture Trustee for the purpose as provided in Section
3.02 hereof, and the Owner Trustee shall execute and the Indenture Trustee
shall authenticate and deliver in exchange therefor the Certificate or
Certificates which the Holder making the exchange shall be entitled to
receive, bearing numbers not contemporaneously or previously outstanding.
All Certificates presented for registration of transfer, exchange,
prepayment or payment shall (if so required by the Owner Trustee or the
Indenture Trustee) be duly endorsed by, or be accompanied by a written
instrument or instruments of transfer in form satisfactory to the Owner
Trustee and the Indenture Trustee duly executed by the Holder or its attorney
duly authorized in writing and (except in the case of transfers pursuant to
Section 15.01 of the Participation Agreement) the Indenture Trustee may
require evidence satisfactory to it as to the compliance of any such transfer
with the Securities Act.
The Indenture Trustee may require payment from the Holder of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any exchange or registration of transfer of Certificates. No
service charge shall be levied for any such transaction.
The Indenture Trustee shall not be required to exchange or register a
transfer of any Certificates (a) for a period of fifteen (15) days immediately
preceding the first mailing of notice of prepayment of such Certificates or
(b) with respect to which notice of prepayment has been given pursuant to
Section 6.03 hereof and such notice has not been revoked.
All Certificates issued upon any transfer or exchange of Certificates
shall be valid obligations of the Owner Trustee, evidencing the same debt, and
entitled to the same security and benefits under this Indenture, as the
Certificates surrendered upon such transfer or exchange.
Section 2.07. Mutilated, Defaced, Destroyed, Lost and Stolen
Certificates. In case any temporary or definitive Certificate shall become
mutilated, defaced or be apparently destroyed, lost or stolen, the Owner
Trustee in its discretion may execute, and upon the oral or written request of
any officer of SSB, the Indenture Trustee shall authenticate and deliver, a
new Certificate of like Maturity, principal amount and interest rate as the
Certificate being replaced, bearing a number not contemporaneously or
previously outstanding, in exchange and substitution for the mutilated or
defaced Certificate, or in lieu of and substitution for the Certificate so
apparently destroyed, lost or stolen. In the case of any Certificate so
apparently destroyed, lost or stolen, the applicant for a substitute
Certificate shall furnish to the Owner Trustee and to the Indenture Trustee
such security or indemnity as may be required by them to indemnify and defend
and to hold each of them harmless and evidence to their satisfaction of the
apparent destruction, loss or theft of such Certificate and of the ownership
thereof.
Upon the issuance of any substitute Certificate, the Owner Trustee or
the Indenture Trustee may require payment from the Holder of a sum sufficient
to cover any tax or other governmental charge that may be imposed in relation
thereto and any other reasonable expenses incurred in connection therewith.
In case any Certificate which has matured or is about to mature, or has been
called for prepayment in full, shall become mutilated or defaced or be
apparently destroyed, lost or stolen, the Owner Trustee may, instead of
issuing a substitute Certificate, pay or authorize the payment of the same
(without surrender thereof except in the case of a mutilated or defaced
Certificate), if the applicant of any Certificate so apparently destroyed,
lost or stolen, for such payment shall furnish to the Owner Trustee and to the
Indenture Trustee such security or indemnity as any of them may require to
hold each of them harmless and the applicant shall also furnish to the Owner
Trustee and the Indenture Trustee evidence to their satisfaction of the
apparent destruction, loss or theft of such Certificate and of the ownership
thereof.
Every substitute Certificate issued pursuant to the provisions of
this Section by virtue of the fact that any Certificate is apparently
destroyed, lost or stolen shall constitute an original additional contractual
obligation of the Owner Trustee, whether or not the apparently destroyed, lost
or stolen Certificate shall be enforceable at any time by anyone and shall be
entitled to all the security and benefits of (but shall be subject to all the
limitations of rights set forth in) this Indenture equally and proportionately
with any and all other Certificates duly authenticated and delivered
hereunder. All Certificates shall be held and owned upon the express
condition that, to the extent permitted by law, the foregoing provisions are
exclusive with respect to the replacement or payment of mutilated, defaced, or
apparently destroyed, lost or stolen Certificates and shall preclude any and
all other rights or remedies notwithstanding any law or statute existing or
hereafter enacted to the contrary with respect to the replacement or payment
of negotiable instruments or other securities without their surrender.
Section 2.08. Cancellation of Certificates; Destruction Thereof. All
Certificates surrendered for payment, prepayment, registration of transfer or
exchange, if surrendered to the Owner Trustee or any agent of the Owner
Trustee or the Indenture Trustee, shall be delivered to the Indenture Trustee
for cancellation or, if surrendered to the Indenture Trustee, shall be
cancelled by it; and no Certificates shall be issued in lieu thereof except as
expressly permitted by any of the provisions of this Indenture. The Indenture
Trustee shall destroy cancelled Certificates held by it and deliver a
certificate of destruction to the Owner Trustee. If the Owner Trustee shall
acquire any of the Certificates, such acquisition shall not operate as a
prepayment or satisfaction of the indebtedness represented by such
Certificates unless and until the same are delivered to the Indenture Trustee
for cancellation.
Section 2.09. Temporary Certificates. Pending the preparation of
definitive Certificates, the Owner Trustee may execute and, upon the oral or
written request of an officer of SSB, the Indenture Trustee shall authenticate
and deliver temporary Certificates (printed, lithographed, typewritten or
otherwise reproduced, in each case in form satisfactory to the Indenture
Trustee). Temporary Certificates shall be issuable as registered Certificates
without coupons, of any authorized denomination, and substantially in the form
of the definitive Certificates but with such omissions, insertions and
variations as may be appropriate for temporary Certificates, all as may be
determined by the Owner Trustee with the concurrence of the Indenture Trustee.
Temporary Certificates may contain such reference to any provisions of this
Indenture as may be appropriate. Every temporary Certificate shall be
executed by the Owner Trustee and, upon the oral or written request of an
authorized officer of the Owner Trustee, be authenticated by the Indenture
Trustee upon the same conditions and in substantially the same manner, and
with like effect, as the definitive Certificates. Without unreasonable delay
the Owner Trustee shall execute and shall furnish definitive Certificates and
thereupon temporary Certificates shall be surrendered in exchange therefor
without charge at any office or agency to be maintained by the Indenture
Trustee for the purpose pursuant to Section 3.02 hereof, and, upon the oral
or written request of an authorized officer of the Owner Trustee, the
Indenture Trustee shall authenticate and deliver in exchange for such
temporary Certificates an equal aggregate principal amount of definitive
Certificates of the same Series and Maturities and interest rates and in
authorized denominations. Until so exchanged, temporary Certificates shall be
entitled to the same security and benefits under this Indenture as definitive
Certificates.
Section 2.10. Termination of Interest in Trust Indenture Estate. A
Holder shall not, as such, have any further interest in, or other right with
respect to, the Trust Indenture Estate when and if the principal amount of and
Make-Whole Premium, if any, and interest on and other amounts due under all
Certificates held by such Holder and all other sums payable to such Holder
hereunder and under the other Operative Agreements shall have been paid in
full.
Section 2.11. Certificates in Respect of Replacement Aircraft. Upon
the execution and delivery of an Indenture and Security Agreement Supplement
covering a Replacement Airframe and/or Replacement Engine, as provided in
Section 9.09 hereof, each Certificate shall be deemed to have been issued in
connection with such Replacement Airframe and/or Replacement Engine and each
Certificate issued thereafter upon a transfer or exchange of, or as a
replacement for, a Certificate, shall be designated as having been issued in
connection with such Replacement Airframe and/or Replacement Engine, but
without any other change therein except as provided for in this Article II.
Section 2.12. Assumption of Obligations Under Certificates and Other
Operative Agreements. If, in accordance with and subject to the satisfaction
of the conditions set forth in Section 7.11 of the Participation Agreement,
the Lessee shall assume all of the obligations of the Owner Trustee hereunder,
under the Certificates and all other Operative Agreements, the Owner
Participant and the Owner Trustee shall be released and discharged from any
further obligations hereunder and under the
Certificates and all other Operative Agreements (except for any recourse
obligations of the Owner Participant or the Owner Trustee in its individual
capacity with respect to matters arising out of events occurring prior to such
assumption).
Section 2.13. Establishment of Collateral Account. (a) The
Indenture Trustee shall, pursuant to the Collateral Account Control Agreement,
establish, or cause to be established, with State Street Bank and Trust
Company, who shall represent and warrant that it is a financial intermediary
(as defined in Section 8-313(4) of the Connecticut Uniform Commercial Code),
in its name as secured party hereunder an Eligible Deposit Account entitled
"First Security Bank, National Association, as secured party under the Trust
Indenture and Security Agreement (Federal Express Corporation Trust No.
N673FE) dated as of May 1, 1997, with the Owner Trustee referred to therein".
(b) If at any time the Collateral Account ceases to be an Eligible
Deposit Account, the Indenture Trustee shall within two (2) Business Days,
establish a new Collateral Account meeting the conditions specified in the
definition of Eligible Deposit Account, and shall transfer any cash or any
investments in the Collateral Account to such new Collateral Account.
(c) The Indenture Trustee shall have exclusive dominion and control
of the Collateral Account and all funds therein, and shall make withdrawals
from the Collateral Account only in accordance with this Indenture.
(d) The Collateral Account Control Agreement shall require State
Street Bank and Trust Company to send confirmation to the Indenture Trustee
and the Lessee that it has credited the Specified Investments to the
Collateral Account and to make appropriate entries on its books identifying
the Specified Investments as pledged to the Indenture Trustee.
Section 2.14. Investment of Funds on Deposit in the Collateral
Account. (a) Funds deposited in the Collateral Account shall be invested and
reinvested by the Indenture Trustee, subject to Section 17.02 of the
Participation Agreement, at the risk of the Owner Trustee, in Specified
Investments selected by the Lessee and approved by the Indenture Trustee for
the account of the Owner Trustee in accordance with Section 2.14(b) below;
provided, however, that if Specified Investments meeting the requirements of
Section 2.14(b) are not available on any day on which funds are to be invested
as contemplated by the preceding provisions of this Section 2.14(a), the
Indenture Trustee may leave such funds in the Collateral Account uninvested
until the earliest of (i) the date on which an appropriate Specified
Investment becomes available, (ii) the Delivery Date and (iii) the Cut-Off
Date. The Indenture Trustee shall maintain possession of the negotiable
instruments or securities, if any, evidencing such Specified Investments and,
in the case of any Specified Investments in book-entry form, such Specified
Investments shall be credited to an account of the Indenture Trustee or a
financial intermediary with the applicable Federal Reserve Bank; provided,
however, if the account is credited to the financial intermediary, the
financial intermediary shall make written confirmation thereof to the
Indenture Trustee and make an appropriate entry on its books identifying the
Specified Investments as pledged to the Indenture Trustee. All proceeds of
and any income, interest and other payments and distributions on or with
respect to any Specified Investments shall be deposited in or credited to the
Collateral Account and thereafter shall be held, invested and applied by the
Indenture Trustee in accordance with this Indenture. The Indenture Trustee
shall promptly notify the Owner Trustee and the Lessee of any Losses.
(b) On the Certificate Closing Date, the Indenture Trustee shall
invest the amount deposited in the Collateral Account pursuant to Section
2.01(c) of the Participation Agreement in Specified Investments selected by
the Lessee and approved by the Indenture Trustee for the account of the Owner
Trustee which mature on or prior to September 11, 1997. If the Delivery Date
is postponed pursuant to Section 3.02(c) or Section 3.05 of the Participation
Agreement, the proceeds of the Specified Investments referred to in the
preceding sentence may be invested in Specified Investments which mature
within 14 days after the rescheduled Delivery Date. If no Delivery Date
occurs, then any Specified Investment shall mature no later than the 15th day
after the Cut-Off Date.
(c) If for any reason the Indenture Trustee shall be required to
make any distributions of the Liquid Collateral prior to the maturity date of
any Specified Investment, the Indenture Trustee shall cause the same to be
sold in accordance with standard commercial practices, and the Lessee, for the
account of the Owner Trustee, shall forthwith compensate the Indenture Trustee
for any Losses as provided in Section 17.02(a) of the Participation Agreement.
(d) Pursuant to Section 17.02(b) of the Participation Agreement,
interest payable on the Certificates during the period in which funds are on
deposit in the Collateral Account shall be paid by the Lessee.
Section 2.15. Release of Debt Portion and Lien on the Collateral
Account and the Liquid Collateral on Delivery Date. (a) Subject to the
satisfaction or waiver of the conditions precedent to the Indenture Trustee's
obligations set forth in Section 4.02 of the Participation Agreement, on the
Delivery Date, subject to the proviso to Section 3.02(a) of the Participation
Agreement, the Indenture Trustee shall release from the Collateral Account an
amount of Liquid Collateral, equal to the lesser of (A) the Debt Portion and
(B) the amount actually in the Collateral Account on the Delivery Date.
Subject to the proviso to Section 3.02(a) of the Participation Agreement, such
amount so released, together with the amount of any Losses received from the
Lessee pursuant to Section 17.02(a) of the Participation Agreement, shall be
used to finance a portion of the Purchase Price payable by (x) the Owner
Trustee as contemplated by Section 3.02(a) of the Participation Agreement or
(y) if the fifth sentence of Section 3.05(a) of the Participation Agreement
shall be applicable, by the Lessee as contemplated by such sentence. Any
amount remaining in the Collateral Account after such release (net of any
uncompensated Losses) shall be remitted by the Indenture Trustee on behalf of
the Owner Trustee to the Lessee pursuant to Section 3.02(a)(C) of the
Participation Agreement.
(b) The Lien of this Indenture on the Collateral Account and the
Liquid Collateral shall terminate on the Delivery Date following the transfer
of amounts described in Section 3.02(a) of the Participation Agreement.
Section 2.16. Cut-Off Date. In the case of a prepayment under
Section 6.02(a)(vi) hereof, the Indenture Trustee shall release from the
Collateral Account all amounts held in the Collateral Account on such date.
Such amount so released, together with the amount of any Losses received from
the Lessee pursuant to Sections 17.02(a) and 17.02(c) of the Participation
Agreement, shall be applied to pay amounts due under Section 6.02(b)(1) hereof
on the 15th day following the Cut-Off Date, and any amount (net of any
uncompensated Losses) remaining after such release and application shall be
remitted by the Indenture Trustee, on behalf of the Owner Trustee, to the
Lessee.
Section 2.17. Subordination. (a) The Owner Trustee and, by
acceptance of its Certificates of any Series, each Holder of such Series,
hereby agree that no payment or distribution shall be made on or in respect of
the Secured Obligations owed to such Certificate Holder of such Series,
including any payment or distribution of cash, property or securities after
the commencement of a proceeding of the type referred to in clause (v), (vi)
or (vii) of Section 7.01 hereof, except as expressly provided in Article V
hereof.
(b) By the acceptance of its Certificates of any Series
(other than Series A), each Holder of such Series agrees that in the event
that such Holder, in its capacity as a Holder, shall receive any payment or
distribution on any Secured Obligations in respect of such Series which it is
not entitled to received under this Section 2.17 or Article V hereof, it will
hold any amount so received in trust for the Senior Holder (as defined in
Section 2.17(c) hereof) and will forthwith turn over such payment to the
Indenture Trustee in the form received to be applied as provided in Article V
hereof.
(c) As used in this Section 2.17, the term "Senior Holder"
shall mean, (i) the Holders of Series A Certificates until the Secured
Obligations in respect of Series A Certificates have been paid in full, (ii)
after the Secured Obligations in respect of Series A Certificates have been
paid in full, the Holders of Series B Certificates until the Secured
Obligations in respect of Series B Certificates have been paid in full and
(iii) after the Secured Obligations in respect of Series B Certificates have
been paid in full, the Holders of Series C Certificates until the Secured
Obligations in respect of Series C Certificates have been paid in full.
ARTICLE III
COVENANTS
Section 3.01. Payment of Principal, Make-Whole Premium and Interest.
The Owner Trustee covenants and agrees that it will, subject to Section 2.05
hereof, duly and punctually pay or cause to be paid the principal of, and
interest and Make-Whole Premium, if any, and all other amounts due on, each of
the Certificates and under this Indenture at the place or places, at the
respective times and in the manner provided in this Indenture and in the
Certificates.
Principal and interest and other amounts due hereunder or under the
Certificates shall be payable in dollars on the due date thereof, to the
Indenture Trustee at the Corporate Trust Department (or such other account at
such other financial institution as the Indenture Trustee may designate for
the purpose). If any amount payable under the Certificates or under this
Indenture falls due on a day which is not a Business Day, then such sum shall
be payable on the next succeeding Business Day, without (provided that payment
is made on such next succeeding Business Day) additional interest thereon for
the period of such extension.
Section 3.02. Offices for Payments, etc. So long as any of the
Certificates remain outstanding, the Indenture Trustee will maintain the
following: (a) an office or agency where the Certificates may be presented
for payment and (b) a facility or agency in New York, New York where the
Certificates may be presented for registration of transfer and for exchange
and for prepayment as provided in this Indenture (the "Registrar"). The
Registrar shall keep a register (the "Register") with respect to the
Certificates and their transfer and exchange. The Indenture Trustee may
appoint one or more co-registrars ("Co-Registrars") for the Certificates and
may terminate any such appointment at any time upon written notice. The term
"Registrar" includes any Co-Registrar.
The Indenture Trustee shall initially act as Registrar.
Section 3.03. Appointment to Fill a Vacancy in Office of Indenture
Trustee. The Owner Trustee, whenever necessary to avoid or fill a vacancy in
the office of Indenture Trustee, will, with the consent of the Lessee,
appoint, in the manner provided in Section 12.02 hereof, an Indenture Trustee,
so that there shall at all times be an Indenture Trustee hereunder.
Section 3.04. Paying Agents. Whenever the Indenture Trustee in its
sole discretion shall appoint a paying agent (the "Paying Agent"), it will
cause the Paying Agent to execute and deliver an instrument in which the
Paying Agent shall agree with the Indenture Trustee, subject to the provisions
of this Section:
(a) that it will hold all sums received by it as such agent for the
payment of the principal of, and interest and Make-Whole Premium, if any,
on the Certificates (whether such sums have been paid to it by the
Indenture Trustee or the Owner Trustee) in trust for the benefit of the
Holders or of the Indenture Trustee, and
(b) that it will give the Indenture Trustee notice of any failure by
the Owner Trustee to make any payment of the principal of or interest or
Make-Whole Premium, if any, on the Certificates when the same shall be due
and payable.
Anything in this Section to the contrary notwithstanding, the
agreements to hold sums in trust as provided in this Section are subject to
the provisions of Sections 14.03 and 14.04 hereof.
Section 3.05. Covenants of SSB and the Owner Trustee.
(a) SSB hereby covenants and agrees to perform its covenants set
forth in Sections 7.04(b) and 7.04(c) of the Participation Agreement.
(b) The Owner Trustee hereby covenants and agrees as follows:
(i) in the event a Responsible Officer of the Owner Trustee shall have
actual knowledge of an Indenture Event of Default, an Indenture Default or
an Event of Loss, the Owner Trustee will give prompt written notice of such
Indenture Event of Default, Indenture Default or Event of Loss to the
Indenture Trustee, the Lessee and the Owner Participant;
(ii) the Owner Trustee will furnish to the Indenture Trustee,
promptly upon receipt thereof, duplicates or copies of all reports,
notices, requests, demands, certificates, financial statements and other
instruments furnished to the Owner Trustee under the Lease, including,
without limitation, a copy of each report or notice from an insurer or an
insurance broker received pursuant to Article 13 of the Lease, to the
extent that the same shall not have been furnished to the Indenture Trustee;
(iii) the Owner Trustee will not enter into any business or other
activity other than the business of owning the Aircraft, the leasing
thereof to the Lessee and the carrying out of the transactions contemplated
hereby and by the Lease, the Participation Agreement, the Trust Agreement
and the other Indenture Documents; and
(iv) except as contemplated by the Operative Agreements, the Owner
Trustee will not contract for, create, incur or assume any debt, and will
not guarantee (directly or indirectly or by an instrument having the effect
of assuring another's payment or performance on any obligation or
capability of so doing, or otherwise), endorse or otherwise take action to
become contingently liable, directly or indirectly, in connection with the
debt of any other Person.
Section 3.06. [Reserved]
Section 3.07. Disposal of Trust Indenture Estate. At any time and
from time to time any part of the Trust Indenture Estate may be sold or
disposed of in accordance with the provisions of this Indenture and the Lease.
The Indenture Trustee shall, from time to time, release any part of the Trust
Indenture Estate so sold or disposed of or as to which an Event of Loss has
occurred or as to which the Lease has been terminated from the Lien of this
Indenture. In addition, to the extent that such property constitutes an
Airframe or Engine, the further requirements of Section 9.08 hereof shall be
complied with.
Section 3.08. No Representations or Warranties as to Aircraft or
Documents. NEITHER THE INDENTURE TRUSTEE NOR THE OWNER TRUSTEE NOR SSB NOR
THE OWNER PARTICIPANT MAKES OR SHALL BE DEEMED TO HAVE MADE ANY REPRESENTATION
OR WARRANTY, EXPRESS OR IMPLIED, AS TO THE TITLE, AIRWORTHINESS, WORKMANSHIP,
VALUE, CONDITION, DESIGN, COMPLIANCE WITH SPECIFICATIONS, MERCHANTABILITY OR
FITNESS FOR ANY PARTICULAR USE OR PURPOSE OF THE AIRCRAFT OR ANY ENGINE, AS TO
THE ABSENCE OF ANY INFRINGEMENT OF ANY PATENT, TRADEMARK OR COPYRIGHT, AS TO
THE ABSENCE OF OBLIGATIONS BASED ON STRICT LIABILITY IN TORT OR ANY OTHER
REPRESENTATION OR WARRANTY WITH RESPECT TO THE AIRCRAFT OR ANY ENGINE
WHATSOEVER, except that SSB warrants that on the Delivery Date (a) the Owner
Trustee shall have received whatever title was conveyed to it by AVSA, and (b)
the Aircraft shall be free and clear of Lessor's Liens attributable to SSB.
Neither SSB, the Indenture Trustee nor the Owner Participant makes or shall be
deemed to have made any representation or warranty as to the validity,
legality or enforceability of this Indenture, the Trust Agreement, the
Certificates or any Indenture Document or as to the correctness of any
statement contained in any thereof, except for the representations and
warranties of SSB and the Indenture Trustee made under this Indenture or in
the Participation Agreement or of the Owner Participant made under the
Participation Agreement.
Section 3.09. Further Assurances; Financing Statements. At any time
and from time to time, upon the request of the Indenture Trustee or the
Lessee, at the expense of the Lessee, the Owner Trustee shall promptly and
duly execute and deliver any and all such further instruments and documents as
may be specified in such request and as are necessary or advisable to perfect,
preserve or protect the Liens and assignments created or intended to be
created hereby, or to obtain for the Indenture Trustee the full benefit of the
specific rights and powers granted herein, including, without limitation, the
execution and delivery of Uniform Commercial Code financing statements and
continuation statements with respect thereto, or similar instruments relating
to the perfection of the Liens or assignments created or intended to be created
hereby.
ARTICLE IV
HOLDER LISTS
Section 4.01. Holder Lists; Ownership of Certificates. (a) The
Indenture Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
the Holders. If the Indenture Trustee is not the Registrar, the Registrar
shall furnish to the Indenture Trustee semi-annually not more than ten (10)
days after each Record Date, as of such Record Date, or at such other times as
the Indenture Trustee may request in writing, a list, in such form and as of
such date as the Indenture Trustee may reasonably require, containing all the
information in the possession or control of the Registrar as to the names and
addresses of the Holders and the amounts and Maturities of the Certificates
held by such Holders.
(b) Ownership of the Certificates shall be proved by the Register
kept by the Registrar.
ARTICLE V
RECEIPT, DISTRIBUTION AND APPLICATION OF
INCOME FROM THE TRUST INDENTURE ESTATE
Section 5.01. Basic Rent Distribution. Except as otherwise provided
in Section 5.03 hereof, each installment of Basic Rent, any payment of
interest on overdue installments of Basic Rent, any payment received by the
Indenture Trustee pursuant to Section 8.03(a) hereof and any payment received
by the Indenture Trustee pursuant to Section 17.02(b) or 17.02(c) of the
Participation Agreement shall be distributed by the Indenture Trustee no later
than the time herein provided in the following order of priority:
first, (i) so much of such installment or payment as shall be
required to pay in full the aggregate amount of the payment or
payments of Principal Amount and interest and other amounts (as
well as any interest on any overdue Principal Amount and, to the
extent permitted by applicable law, on any overdue interest and
any other overdue amounts) then due under all Series A
Certificates shall be distributed to the Holders of Series A
Certificates ratably, without priority of one over the other, in
the proportion that the amount of such payment or payments then
due under each Series A Certificate bears to the aggregate amount
of the payments then due under all Series A Certificates;
(ii) after giving effect to paragraph (i) above, so much of
such installment or payment as shall be required to pay in full
the aggregate amount of the payment or payments of Principal
Amount and interest and other amounts (as well as any interest on
any overdue Principal Amount and, to the extent permitted by
applicable law, on any overdue interest and any other overdue
amounts) then due under all Series B Certificates shall be
distributed to the Holders of Series B Certificates ratably,
without priority of one over the other, in the proportion that the
amount of such payment or payments then due under each Series B
Certificate bears to the aggregate amount of the payments then due
under all Series B Certificates; and
(iii) after giving effect to paragraph (ii) above, so much of
such installment or payment as shall be required to pay in full
the aggregate amount of the payment or payments of Principal
Amount and interest and other amounts (as well as any interest on
any overdue Principal Amount and, to the extent permitted by
applicable law, on any overdue interest and any other overdue
amounts) then due under all Series C Certificates shall be
distributed to the Holders of Series C Certificates ratably,
without priority of one over the other, in the proportion that the
amount of such payment or payments then due under each Series C
Certificate bears to the aggregate amount of the payments then due
under all Series C Certificates; and
second, the balance if any of such installment or payment remaining
thereafter shall be distributed to the Owner Trustee, or as the
Owner Trustee may request, for distribution pursuant to the Trust
Agreement.
Section 5.02. Event of Loss and Replacement; Prepayment. (a)
Except as otherwise provided in Section 5.03 hereof, any payment received by
the Indenture Trustee as the result of an Event of Loss with respect to the
Aircraft (including pursuant to Section 11.03(e) of the Lease, but, in the
case of said Section 11.03(e), subject to the time limits specified therein)
or as the result of, or in connection with any event under the Lease giving
rise to, a prepayment pursuant to Section 6.02 hereof, shall be promptly
distributed by the Indenture Trustee in the following order of priority:
first, to reimburse the Indenture Trustee for any costs or expenses
reasonably incurred in connection with such prepayment,
second, (i) to pay the amounts specified in paragraph (i) of clause
"second" of Section 5.03 hereof then due and payable in respect
of the Series A Certificates;
(ii) after giving effect to paragraph (i) above, to pay the
amounts specified in paragraph (ii) of clause "second" of Section
5.03 hereof then due and payable in respect of the Series B
Certificates; and
(iii) after giving effect to paragraph (ii) above, to pay the
amounts specified in paragraph (iii) of clause "second" of
Section 5.03 hereof then due and payable in respect of the Series
C Certificates;
provided that payments pursuant to this clause "second" shall be
made without the payment of Make-Whole Premium except in the
particular circumstances provided in Section 6.02(b) hereof; and
third, as provided in clause "third" of Section 5.03 hereof;
provided that if a Replacement Airframe shall be substituted for an Airframe
subject to an Event of Loss as provided in Section 11.03 of the Lease and
Section 9.08 hereof, any proceeds which result from such Event of Loss and are
paid to the Indenture Trustee shall be held by the Indenture Trustee as part
of the Trust Indenture Estate and, unless otherwise applied pursuant to
Section 5.01 or 5.03 hereof, such proceeds shall be released to the Lessee
upon the release of such damaged Airframe and the replacement thereof as
herein provided.
(b) Any amounts received directly or indirectly from any governmental
authority, insurer or other party pursuant to any provision of Article 11 or
13 of the Lease as the result of loss or damage not constituting an Event of
Loss (x) with respect to the Aircraft, or as a result of such loss or damage
constituting an Event of Loss if and to the extent that such amounts would at
the time be required to be paid to the Lessee pursuant to said Article 11 or
13 but for the fact that a Payment Default, Bankruptcy Default or an Event of
Default shall have occurred and be continuing or (y) are pledged to the Lessor
as security in connection with an Event of Loss in accordance with Section
11.03(e) of the Lease, shall be held by the Indenture Trustee as security for
the obligations of the Lessee under the Lease and the Participation Agreement
and shall be invested in accordance with the terms of Section 5.08 hereof and
at such time as the conditions for payment to the Lessee specified in said
Article 11 or 13, as the case may be, shall be fulfilled and there shall not
be continuing any Payment Default, Bankruptcy Default or Event of Default,
such amount, and the proceeds of any investment thereof, shall, to the extent
not theretofore applied, be paid to the Lessee to the extent provided in the
Lease.
Section 5.03. Payment After Indenture Event of Default, etc. Except
as otherwise provided in Sections 5.02(b), 5.04(b), 5.04(c) and 5.05 hereof,
all payments (other than Excepted Payments) received and all amounts held or
realized by the Indenture Trustee after an Indenture Event of Default shall
have occurred and so long as such an Indenture Event of Default shall be
continuing, and after the Certificates shall have become due and payable as
provided in Section 7.02(b) or (c) hereof, shall be promptly distributed by
the Indenture Trustee in the following order of priority:
first, so much of such payments or amounts as shall be required to
reimburse the Indenture Trustee for any tax, expense, charge or
other loss (including, without limitation, all amounts to be
expended at the expense of, or charged upon the tolls, rents,
revenues, issues, products and profits of, the property included
in the Trust Indenture Estate pursuant to Section 7.03(b) hereof)
incurred by the Indenture Trustee (to the extent not previously
reimbursed) (including, without limitation, the expenses of any
sale, taking or other proceeding, attorneys' fees and expenses,
court costs, and any other expenditures incurred or expenditures
or advances made by the Indenture Trustee or the Holders in the
protection, exercise or enforcement of any right, power or remedy
or any damages sustained by the Indenture Trustee or the Holders,
liquidated or otherwise, upon such Indenture Event of Default)
shall be applied by the Indenture Trustee as between itself and
the Holders in reimbursement of such expenses;
second, (i) so much of such payments or amounts remaining as shall be
required to pay in full the aggregate unpaid Principal Amount of
all Series A Certificates, and the accrued but unpaid interest
and other amounts due thereon and all other Secured Obligations
(other than Make-Whole Premium) in respect of the Series A
Certificates to the date of distribution, shall be distributed to
the Holders of Series A Certificates, and in case the aggregate
amount so to be distributed shall be insufficient to pay in full
as aforesaid, then ratably, without priority of one over the
other, in the proportion that the aggregate unpaid Principal
Amount of all Series A Certificates held by each holder plus the
accrued but unpaid interest and other amounts due hereunder or
thereunder (other than Make-Whole Premium) to the date of
distribution, bears to the aggregate unpaid Principal Amount of
all Series A Certificates held by all such holders plus the
accrued but unpaid interest and other amounts due thereon (other
than Make-Whole Premium) to the date of distribution;
(ii) after giving effect to paragraph (i) above, so much of
such payments or amounts remaining as shall be required to pay in
full the aggregate unpaid Principal Amount of all Series B
Certificates, and the accrued but unpaid interest and other
amounts due thereon and all other Secured Obligations (other than
Make-Whole Premium) in respect of the Series B Certificates to
the date of distribution, shall be distributed to the Holders of
Series B Certificates, and in case the aggregate amount so to be
distributed shall be insufficient to pay in full as aforesaid,
then ratably, without priority of one over the other, in the
proportion that the aggregate unpaid Principal Amount of all
Series B Certificates held by each holder plus the accrued but
unpaid interest and other amounts due hereunder or thereunder
(other than Make-Whole Premium) to the date of distribution,
bears to the aggregate unpaid Principal Amount of all Series B
Certificates held by all such holders plus the accrued but unpaid
interest and other amounts due thereon (other than Make-Whole
Premium) to the date of distribution; and
(iii) after giving effect to paragraph (ii) above, so much of
such payments or amounts remaining as shall be required to pay in
full the aggregate unpaid Principal Amount of all Series C
Certificates, and the accrued but unpaid interest and other
amounts due thereon and all other Secured Obligations (other than
Make-Whole Premium) in respect of the Series C Certificates to
the date of distribution, shall be distributed to the Holders of
Series C Certificates, and in case the aggregate amount so to be
distributed shall be insufficient to pay in full as aforesaid,
then ratably, without priority of one over the other, in the
proportion that the aggregate unpaid Principal Amount of all
Series C Certificates held by each holder plus the accrued but
unpaid interest and other amounts due hereunder or thereunder
(other than Make-Whole Premium) to the date of distribution,
bears to the aggregate unpaid Principal Amount of all Series C
Certificates held by all such holders plus the accrued but unpaid
interest and other amounts due thereon (other than Make-Whole
Premium) to the date of distribution;
(it being understood that amounts payable under this clause
"second" shall not include Make-Whole Premium); and
third, the balance, if any of such payments or amounts remaining
thereafter shall be distributed to the Owner Trustee for
distribution pursuant to the Trust Agreement.
Section 5.04. Certain Payments. (a) Except as otherwise provided
in this Indenture, any payments received by the Indenture Trustee which are to
be applied according to any provision in any other Indenture Document shall be
applied thereunder in accordance therewith.
(b) The Indenture Trustee will distribute, promptly upon receipt, any
indemnity or other payment received by it from the Owner Trustee or the Lessee
in respect of (i) the Indenture Trustee in its individual capacity, (ii) the
Subordination Agent, (iii) each Liquidity Provider, and (iv) the Pass Through
Trustee, in each case whether pursuant to Article 8 or 9 of the Participation
Agreement or as Supplemental Rent, directly to the Person (which may include
the Indenture Trustee) entitled thereto. Any payment received by the
Indenture Trustee under clause (b) of the last paragraph of Section 2.04 shall
be distributed to the Subordination Agent to be distributed in accordance with
the terms of the Intercreditor Agreement.
(c) Notwithstanding anything to the contrary contained herein, any
sums received by the Indenture Trustee which constitute Excepted Payments
shall be distributed promptly upon receipt by the Indenture Trustee directly
to the Person or Persons entitled thereto.
Section 5.05. Other Payments. Any payments received by the Indenture
Trustee for which no provision as to the application thereof is made elsewhere
in this Indenture or in any other Indenture Document (including without
limitation Article 9 of the Lease) shall be distributed by the Indenture
Trustee (a) to the extent received or realized at any time prior to the
payment in full of all obligations to the Holders, in the order of priority
specified in Section 5.01 hereof, and (b) to the extent received or realized
at any time after payment in full of all obligations to the Holders, in the
following order of priority:
first, in the manner provided in clause "first" of Section 5.03 hereof
and
second, in the manner provided in clause "third" of Section 5.03 hereof.
Section 5.06. Payments to Owner Trustee. Any amounts distributed
hereunder by the Indenture Trustee to the Owner Trustee shall be paid to the
Owner Trustee by wire transfer of immediately available funds of the type
received by the Indenture Trustee at such office and to such account or
accounts of such entity or entities as shall be designated by notice from the
Owner Trustee to the Indenture Trustee from time to time. The Owner Trustee
hereby notifies the Indenture Trustee that unless and until the Indenture
Trustee receives notice to the contrary from the Owner Trustee, all amounts to
be distributed to the Owner Trustee hereunder for distribution in accordance
with the Trust Agreement shall be distributed by wire transfer of immediately
available funds of the type received by the Indenture Trustee to such account
of the Owner Participant as may be specified pursuant to Section 2.06 of the
Trust Agreement.
Section 5.07. Application of Payments. Each payment of principal of
and interest or other amounts due on each Certificate shall, except as
otherwise provided herein, be applied,
first, to the payment of interest on such Certificate due and payable to
the date of such payment, as provided in such Certificate, as
well as any interest on overdue principal and Make-Whole Premium,
if any, and, to the extent permitted by law, interest and other
amounts due thereunder,
second, to the payment of any other amount (other than the principal of
such Certificate) due hereunder to the Holder of such Certificate
or under such Certificate,
third, to the payment of the principal of such Certificate if then due
hereunder or under such Certificate and
fourth, the balance, if any remaining thereafter, to the payment of the
principal of such Certificate remaining unpaid (provided that
such Certificate shall not be subject to prepayment without the
consent of the affected Holder except as permitted by Sections
6.02, 6.06 and 8.02 hereof); provided that, solely for the
purpose of determining whether an Indenture Event of Default
shall have occurred and be continuing, each such payment shall be
deemed applied in the following order of priority: first, in the
manner provided in clause "first" above, second, in the manner
provided in clause "third" above, third, in the manner provided
in clause "second" above and fourth, in the manner provided in
clause "fourth" above.
Section 5.08. Investment of Amounts Held by Indenture Trustee.
Amounts held by the Indenture Trustee pursuant to Section 5.02(b) hereof or
pursuant to any provision of any Indenture Document providing for investment
by the Indenture Trustee of sums pursuant to Section 23.01 of the Lease or
this Section 5.08 shall be invested by the Indenture Trustee from time to time
in securities selected by (i) so long as no Event of Default shall have
occurred and be continuing, the Lessee (and in the absence of written
direction by the Lessee, the Indenture Trustee shall invest such monies in
direct obligations of the United States of America) or (ii) so long as an
Event of Default shall have occurred and be continuing, the Indenture Trustee
and in each case shall be of the type listed in clauses (i) through (iv) of
Section 23.01 of the Lease. Unless otherwise expressly provided in this
Indenture, any income realized as a result of any such investment, net of the
Indenture Trustee's reasonable fees and expenses in making such investment,
shall be held and applied by the Indenture Trustee in the same manner as the
principal amount of such investment is to be applied and any losses, net of
earnings and such reasonable fees and expenses, shall be charged against the
principal amount invested. The Lessee shall be responsible for and will
promptly pay to the Indenture Trustee or the Lessor, as the case may be, on
demand, the amount of any loss realized as the result of any such investment
(together with any fees, commissions and other costs and expenses, if any,
incurred by the Indenture Trustee or the Lessor in connection with such
investment), such amount to be disposed of in accordance with the terms hereof
or the Lease, as the case may be. The Indenture Trustee shall not be liable
for any loss resulting from any investment made by it or any investment sold
by it under this Indenture in accordance with instructions from the Lessee
other than by reason of its willful misconduct or gross negligence, and any
such investment may be sold (without regard to its maturity) by the Indenture
Trustee without instructions whenever the Indenture Trustee reasonably
believes such sale is necessary to make a distribution required by this
Indenture.
Unless otherwise confirmed in writing, an account statement delivered
by the Indenture Trustee to the Owner Trustee (with a copy to the Lessee)
shall be deemed written confirmation by the Owner Trustee that the investment
transactions identified therein accurately reflect the investment directions
given to the Indenture Trustee by or on behalf of the Lessee, unless the
Lessee notifies the Indenture Trustee in writing to the contrary within 30
days of the date of receipt of such statement.
Section 5.09. Withholding Taxes. The Indenture Trustee shall
withhold any Taxes required to be withheld, except to the extent that the
Holder has furnished evidence satisfactory to the Indenture Trustee of any
exemption from withholding claimed by such Holder and under no circumstances
shall the failure of any such Holder to receive any amounts so withheld
constitute an Indenture Event of Default. Notwithstanding any provision to
the contrary in Sections 5.01 through 5.05 hereof and subject to Article 8 of
the Participation Agreement, if the Lessee is required to pay any such Tax, or
any interest or penalty thereon, or to indemnify the Owner Participant or the
Owner Trustee with respect thereto pursuant to Section 8.01(c) of the
Participation Agreement, the Lessee shall be entitled to receive any payments
otherwise distributable to the Holder of any Certificate who was subject to
such Tax pursuant to Sections 5.01 to 5.05 hereof until the amounts the Lessee
shall have so paid in respect of any such Tax shall have been recovered in
full by the Lessee.
ARTICLE VI
PREPAYMENT OF CERTIFICATES
Section 6.01. No Prepayment Prior to Maturity. Except as provided
in Sections 6.02, 6.06 and 8.02 hereof, the Certificates may not be prepaid
prior to their respective Maturities.
Section 6.02. Prepayment of Certificates. (a) The Outstanding
Certificates shall be prepaid in full (and not in part):
(i) If an Event of Loss occurs with respect to the Airframe or with
respect to the Airframe and the Engines or engines then installed on the
Airframe (unless pursuant to Section 11.03 of the Lease and Section 9.08
hereof replacement equipment is substituted therefor).
(ii) If the Lessee, pursuant to Section 4.02(a) of the Lease, gives
notice of purchase of the Aircraft (and Section 2.12 hereof shall not be
applicable in connection with such purchase), but subject to Section
6.02(c) below.
(iii) If the Owner Participant or the Owner Trustee on behalf of the
Owner Participant gives notice of prepayment to the Indenture Trustee
pursuant to Section 8.02 hereof (unless such notice is revoked in
accordance with such Section).
(iv) If the Lessee, pursuant to Section 10.01 of the Lease, gives
notice of a voluntary termination for obsolescence or surplus, but subject
to Section 6.02(c) below.
(v) Pursuant to Section 15.01 of the Participation Agreement in
connection with a refinancing of the Certificates, but subject to Section
6.02(c) below.
(vi) As contemplated by Section 2.16 hereof and Section 3.05(b) of the
Participation Agreement if the Delivery Date has not occurred on or prior
to the Cut-Off Date.
(vii) At the option of the Owner Trustee with the prior written
consent of the Lessee and the Owner Participant upon not less than 25 days'
prior written notice.
(b) In the event of a prepayment of the Certificates pursuant to
Sections 6.02(a)(ii), (iv) and (v) above, the Owner Trustee, having received
notice from the Lessee in accordance with and subject to the terms of Section
4.02(a) or 10.01 of the Lease or Article 15 of the Participation Agreement, as
the case may be, shall give irrevocable (subject to Section 6.02(c) hereof)
written notice to the Indenture Trustee and to the Holders of all of the
Certificates specifying the Business Day on which the Certificates shall be
prepaid. In the case of a prepayment of the Certificates pursuant to Section
6.02(a)(i) above, the Certificates shall be prepaid in full on the Loss
Payment Date as defined in Section 11.02 of the Lease. In the case of a
prepayment of the Certificates pursuant to Section 6.02(a)(iii) above, the
Certificates shall be prepaid in full on the date so designated in the notice
referred to in Section 8.02 hereof. In the case of a prepayment of the
Certificates pursuant to Section 6.02(a)(ii) or (iv) above, the Certificates
shall be prepaid in full on the Termination Date. In the case of a prepayment
of the Certificates pursuant to Section 6.02(a)(v) above, the Certificates
shall be prepaid on the effective date of the Refinancing. In the case of a
prepayment of the Certificates pursuant to Section 6.02(a)(vi) above, the
Certificates shall be prepaid on the 15th day following the Cut-Off Date. In
the case of a prepayment of the Certificates pursuant to Section 6.02(a)(vii)
above, the Certificates shall be prepaid on the date designated in the notice
referred to therein. The day on which the Certificates are to be prepaid
pursuant to this Section 6.01(b) is herein referred to as the "Prepayment
Date".
On or prior to the Prepayment Date, immediately available funds shall
be deposited with the Indenture Trustee in an amount in respect of the
Certificates equal to:
(1) (i) if such prepayment is made under any provision of Section 6.02
hereof on or after the applicable Premium Termination Date, or (ii) if such
prepayment is made prior to the applicable Premium Termination Date
pursuant to Section 6.02(a)(i), 6.02(a)(iii) (if clause (i) of the first
sentence of Section 8.02(a) hereof is applicable) or 6.02(a)(vi) above, the
sum of (A) the aggregate principal amount of such Certificates then
Outstanding, (B) accrued interest on the Certificates to the Prepayment
Date and (C) all other aggregate sums due the Indenture Trustee hereunder
or under the Participation Agreement or the Lease, but excluding any
Make-Whole Premium or other premium or penalty, or
(2) if such prepayment is made prior to the applicable Premium
Termination Date pursuant to Section 6.02(a)(ii), 6.02(a)(iii) (if clause
(ii) of the first sentence of Section 8.02(a) hereof is applicable),
6.02(a)(iv), 6.02(a)(v) or 6.02(a)(vii) above, the sum of the amounts
specified in clauses (A), (B) and (C) of the preceding clause (1) plus any
Make-Whole Premium payable in respect of all Certificates with respect to
which the Premium Termination Date therefor has not occurred
(the aggregate amount required to be paid pursuant to this sentence being
herein referred to as the "Prepayment Price").
(c) If, pursuant to the last paragraph of Section 10.01(f) of the
Lease, no Termination Date shall occur, or if, pursuant to Section 4.02(a) of
the Lease, the Lessee revokes its notice of election to purchase, or if no
refinancing shall occur pursuant to Section 15.01 of the Participation
Agreement, the Lessee shall give notice thereof to the Indenture Trustee, and
the prepayment proposed to be effected in respect thereof shall not occur.
Section 6.03. Notice of Prepayment to Holders. In order to effect
any prepayment set forth in Section 6.02(a) hereof, the Indenture Trustee
shall give prompt notice by first class mail of prepayment to each Holder of
an Outstanding Certificate. Any notice of prepayment given by the Owner
Trustee may be revoked by the Owner Trustee at any time on or before the
Prepayment Date by prompt notice to the Holders except as otherwise provided
in the Lease or the Participation Agreement.
All notices of prepayment shall state:
(1) the Prepayment Date,
(2) the applicable basis for determining the Prepayment Price,
(3) that on the Prepayment Date, subject to the provisions hereof,
the Prepayment Price will become due and payable, and that interest
on the Certificates shall cease to accrue on and after such
Prepayment Date, and
(4) the place or places where such Certificates are to be
surrendered for payment.
Section 6.04. Deposit of Prepayment Price and Sinking Fund Redemption
Price. On the Prepayment Date or the Sinking Fund Redemption Date (as defined
in Section 6.06 hereof), the Owner Trustee shall, to the extent an amount
equal to the Prepayment Price or the Sinking Fund Redemption Price (as defined
in Section 6.06 hereof), as the case may be, shall not then be held in cash or
Permitted Investments (marked-to-market net of all costs and expenses of
liquidation thereof) by the Indenture Trustee in immediately available funds
and deposited for the purpose, pay to the Indenture Trustee an amount equal to
the difference between (a) the amount then so held and (b) the Prepayment
Price or the Sinking Fund Redemption Price, as the case may be. If there
shall so be on deposit and/or deposited the applicable Prepayment Price or
Sinking Fund Redemption Price on or prior to a Prepayment Date or Sinking Fund
Redemption Date, interest shall cease to accrue in respect of all or, in the
case of a mandatory sinking fund redemption, the relevant portion being
prepaid of, the Outstanding Certificates on and after such Prepayment Date or
such Sinking Fund Redemption Date.
Section 6.05. Certificates Payable on Prepayment Date. On the
Prepayment Date, the Outstanding Certificates shall (except (A) if the Owner
Trustee has requested the Indenture Trustee to revoke such notice of
prepayment in accordance with Section 6.03 hereof or (B) as otherwise provided
in the Lease) become due and payable and from and after such Prepayment Date
(unless there shall be a default in the payment of the Prepayment Price) such
Certificates shall cease to bear interest. Upon surrender by any Holder of
its Certificate for prepayment in accordance with said notice, such Holder
shall be paid the principal amount of its Certificate then outstanding, accrued
interest thereon to the Prepayment Date, all other sums due to such Holder
hereunder, under the Participation Agreement or the Lease, plus, if a
Make-Whole Premium is payable pursuant to Section 6.02(b) hereof, the
Make-Whole Premium in respect of such Certificate.
If any Certificate called for prepayment shall not be so paid upon
surrender thereof for prepayment, the principal shall, until paid, continue to
bear interest from the Prepayment Date at the interest rate applicable to such
Certificate.
Section 6.06. Mandatory Sinking Fund Redemption. The Certificates
shall be subject to partial redemption, at the aggregate principal amount set
forth for the Certificates of the respective Series and Maturity, on a pro
rata basis, on each date specified in this Section (a "Sinking Fund Redemption
Date") for such payment on the Certificates of such Series and Maturity. The
Owner Trustee shall deposit funds sufficient to pay the Sinking Fund
Redemption Price with the Indenture Trustee as provided in Section 6.04
hereof. The Indenture Trustee shall pay from the amounts so deposited on each
applicable Sinking Fund Redemption Date to the Certificates of each Series in
the order of priority set forth in clause "first" of Section 5.01 and among the
Holders of the Certificates of each Series then Outstanding on a pro rata
basis the aggregate principal amount set forth below, together with accrued
interest to such Sinking Fund Redemption Date, but without Make-Whole Premium
(the "Sinking Fund Redemption Price"):
Principal Amount
Series A Series B Series C
Certificates Certificates Certificates
Sinking Fund with a Maturity of with a Maturity of with a Maturity of
Redemption Date January 15, 2018 January 15, 2018 January 15, 2014
- ---------------- ----------------- ------------------ ------------------
July 15, 1997 0 0 0
January 15, 1998 237,020 139,870 0
July 15, 1998 429,968 0 0
January 15, 1999 469,348 250,371 0
July 15, 1999 198,307 0 0
January 15, 2000 456,622 250,371 333,147
July 15, 2000 211,033 0 0
January 15, 2001 515,875 250,371 333,827
July 15, 2001 151,779 0 0
January 15, 2002 667,654 250,371 346,056
July 15, 2002 0 0 0
January 15, 2003 667,654 250,371 606,354
July 15, 2003 0 0 0
January 15, 2004 667,654 250,371 708,573
July 15, 2004 0 0 0
January 15, 2005 667,654 250,371 833,112
July 15, 2005 0 0 0
January 15, 2006 667,654 250,371 802,110
July 15, 2006 0 0 0
January 15, 2007 403,118 250,371 3,718,121
July 15, 2007 264,537 0 0
January 15, 2008 667,654 250,371 648,079
July 15, 2008 0 0 0
January 15, 2009 667,654 250,371 1,454,348
July 15, 2009 0 0 0
January 15, 2010 667,654 683,379 1,321,136
July 15, 2010 0 0 0
January 15, 2011 667,654 2,868,958 0
July 15, 2011 0 0 0
January 15, 2012 667,654 3,243,783 0
July 15, 2012 0 0 0
January 15, 2013 4,216,042 669,984 0
July 15, 2013 0 0 0
January 15, 2014 352,513 0 4,918,137
July 15, 2014 0 0 0
January 15, 2015 5,685,189 0 0
July 15, 2015 0 0 0
January 15, 2016 6,128,191 0 0
July 15, 2016 0 0 0
January 15, 2017 6,605,712 0 0
July 15, 2017 0 0 0
January 15, 2018 380,206 2,047,945 0
ARTICLE VII
INDENTURE EVENTS OF DEFAULT; REMEDIES
OF INDENTURE TRUSTEE AND HOLDERS
Section 7.01. Indenture Event of Default. "Indenture Event of
Default" means any of the following events (whatever the reason for such
Indenture Event of Default and whether it shall be voluntary or involuntary or
come about or be effected by operation of law or pursuant to or in compliance
with any judgment, decree or order of any court or any order, rule or
regulation of any administrative or governmental body):
(i) any Event of Default specified in Article 16 of the Lease (other
than an Event of Default arising solely as the result of the failure to
make an Excepted Payment unless the Owner Participant shall notify the
Indenture Trustee in writing that such failure shall constitute an
Indenture Event of Default); or
(ii) the failure of the Owner Trustee other than by reason of a
Default or an Event of Default (i) to pay principal, interest or Make-Whole
Premium, if any, on any Certificate when due, and such failure shall have
continued unremedied for ten (10) Business Days after the date when due or
(ii) to pay any other amounts hereunder or under the Certificates when due
and such failure shall have continued unremedied for a period of thirty
(30) days after the Owner Trustee and the Owner Participant shall receive
written demand therefor from the Indenture Trustee or by the Holders of not
less than 25% in aggregate principal amount of Outstanding Certificates; or
(iii) (A) any representation or warranty made by SSB, the Owner
Trustee, the Owner Participant or the Owner Participant Guarantor or any
Owner Trustee Guarantor, in any Operative Agreement or in any certificate of
SSB, the Owner Trustee, the Owner Participant, or the Owner Participant
Guarantor furnished to the Indenture Trustee or any Holder in connection
herewith or therewith or pursuant hereto or thereto shall prove to have been
incorrect when made and was and remains in any respect material to the
Holders and if such misrepresentation is capable of being corrected as of a
subsequent date and if such correction is being sought diligently, and such
misrepresentation shall not have been corrected within 30 days following
notice thereof identified as a "Notice of Indenture Event of Default" being
given to the Owner Trustee and the Owner Participant by the Indenture
Trustee or by a Majority in Interest of Holders; or
(B) any (x) covenant made by the Owner Trustee in the fifth paragraph
following the Habendum Clause hereof or Section 3.05(b)(iii) hereof or
Section 7.02(b) or 7.12 of the Participation Agreement shall be breached in
any respect, (y) covenant made by the Owner Participant in Section 7.02(c)
or the last sentence of Section 7.13 of the Participation Agreement shall
be breached in any respect or (z) other covenant made by the Owner Trustee,
in its individual capacity or as Owner Trustee, or by any Owner Trustee
Guarantor, or by the Owner Participant or the Owner Participant Guarantor
in any Operative Agreement shall be breached in any respect and such breach
shall remain unremedied for a period of thirty (30) days after there has
been given to the Owner Trustee and the Owner Participant by the Indenture
Trustee or by Certificate Holders of not less than 25% in aggregate
principal amount of Outstanding Certificates a written notice identified as
a "Notice of Indenture Event of Default" specifying such breach and
requiring it to be remedied; or
(iv) the Owner Trustee, the Lessor's Estate, any Owner Trustee
Guarantor, the Owner Participant or the Owner Participant Guarantor shall
file any petition or answer seeking for itself any reorganization,
arrangement, composition, readjustment, liquidation, dissolution or similar
relief under any present or future bankruptcy, insolvency or similar
statute, law or regulation;
(v) an order for relief shall be entered in respect of the Owner
Trustee or any Owner Trustee Guarantor or the Owner Participant or the Owner
Participant Guarantor or the Lessor's Estate by a court having jurisdiction
in the premises in an involuntary case under the federal bankruptcy laws as
now or hereafter in effect; or the Owner Trustee or any Owner Trustee
Guarantor or the Owner Participant or the Owner Participant Guarantor or
the Lessor's Estate shall file any answer admitting or not contesting the
material allegations of a petition filed against the Owner Trustee or any
Owner Trustee Guarantor or the Owner Participant or the Owner Participant
Guarantor or the Lessor's Estate in any proceeding referred to in clause
(vi) below or seek or consent or acquiesce in the appointment of any
trustee, custodian, receiver or liquidator of the Owner Trustee or any
Owner Trustee Guarantor or the Owner Participant or the Owner Participant
Guarantor or the Lessor's Estate, as the case may be, or of all or any
substantial part of its properties; or
(vi) without the consent or acquiescence of the Owner Trustee or any
Owner Trustee Guarantor or the Owner Participant or the Owner Participant
Guarantor or the Lessor's Estate, as the case may be, an order shall be
entered constituting an order for relief or approving a petition for relief
or reorganization or any other petition seeking any reorganization,
arrangement, composition, readjustment, liquidation, dissolution or other
similar relief under any present or future bankruptcy, insolvency or
similar statute, law or regulation, or if any such petition shall be filed
against the Owner Trustee or any Owner Trustee Guarantor or the Owner
Participant or the Owner Participant Guarantor or the Lessor's Estate, as
the case may be, and such petition shall not be dismissed within 60 days,
or if, without the consent or acquiescence of the Owner Trustee or any
Owner Trustee Guarantor or the Owner Participant or the Owner Participant
Guarantor or the Lessor's Estate, as the case may be, an order shall be
entered appointing a trustee, custodian, receiver or liquidator of the
Owner Trustee or any Owner Trustee Guarantor or the Owner Participant or
the Owner Participant Guarantor or the Lessor's Estate, as the case may be,
or of all or any substantial part of the properties of the Owner Trustee or
any Owner Trustee Guarantor or the Owner Participant or the Owner
Participant Guarantor or the Lessor's Estate, as the case may be, and such
order shall not be dismissed within 60 days; or
(vii) any Owner Trustee Guaranty or the Owner Participant Guaranty
shall cease to be a valid and enforceable obligation of any Owner Trustee
Guarantor or the Owner Participant Guarantor, as the case may be, or
otherwise shall not be in full force and effect.
Section 7.02. Remedies. (a) If an Indenture Event of Default shall
have occurred and be continuing and so long as the same shall be continuing
unremedied, then and in every such case, the Indenture Trustee may, and when
required by the provisions of Article IX or Section 7.02(c) hereof, shall (i)
exercise any or all of the rights and powers and pursue any and all of the
remedies pursuant to this Article VII and (ii) in the event such Indenture
Event of Default is an Indenture Event of Default referred to in clause (i) of
Section 7.01 hereof, exercise any and all of the remedies pursuant to Article
17 of the Lease; provided that without the consent of the Owner Trustee and
the Owner Participant such exercise of remedies shall not occur until after
the latest date on which the Owner Trustee may cure the related Event of
Default pursuant to Section 8.03 hereof. The Indenture Trustee may (subject
to the provisions of the next succeeding paragraph) take possession of all or
any part of the properties covered or intended to be covered by the Lien and
security interest created hereby or pursuant hereto and may exclude the Owner
Participant, the Owner Trustee, the Lessee and any transferee of the Lessee
and all Persons claiming under any of them wholly or partly therefrom. In
addition, the Indenture Trustee may (subject to the provisions of the next
succeeding paragraph) exercise any other right or remedy in lieu of or in
addition to the foregoing that may be available to it under applicable law, or
proceed by appropriate court action to enforce the terms hereof, of the Lease,
or both, or to rescind the Lease. Without limiting any of the foregoing, it
is understood and agreed that the Indenture Trustee may exercise any right of
sale of the Aircraft available to it, even though it shall not have taken
possession of the Aircraft and shall not have possession thereof at the time
of such sale.
Notwithstanding the foregoing, it is understood and agreed that if the
Indenture Trustee shall proceed to foreclose the Lien of this Indenture, it
shall substantially simultaneously therewith, to the extent the Indenture
Trustee is then entitled to do so hereunder and under the Lease, and is not
then stayed or otherwise prevented from doing so, proceed (to the extent it
has not already done so) to declare the Lease in default and commence the
exercise in good faith of one or more of the significant remedies under
Article 17 of the Lease (as the Indenture Trustee determines in its sole
discretion) for the purpose of recovering the Aircraft. It is further
understood and agreed that if the Indenture Trustee is unable to exercise one
or more remedies under Article 17 of the Lease because of any stay or
operation of law or otherwise, the Indenture Trustee shall not be entitled to
foreclose the Lien of this Indenture (A) until the earlier of (i) 60 days from
the date of any such stay or applicable order under Section 1110 of the
Bankruptcy Code plus any extension consented to by the Indenture Trustee or
the Holders of Certificates of such period as permitted under Section 1110(b)
of the Bankruptcy Code and (ii) the date of actual repossession of the
Aircraft by the Indenture Trustee or (B) if the Lessee has agreed to perform
or assume the Lease pursuant to Section 365 or 1110 of the Bankruptcy Code and
no Event of Default (other than as specified in Section 16.01(e), (f) or (g)
of the Lease, or other Event of Default in respect of which the 30-day period
referred to in clause (a)(1)(B)(ii)(I) of Section 1110 of the Bankruptcy Code
shall not yet have expired) shall be continuing. For the avoidance of doubt,
it is expressly understood and agreed that except as aforesaid the
above-described inability of the Indenture Trustee to exercise any right or
remedy under the Lease shall in no event and under no circumstances prevent
the Indenture Trustee from exercising all of its rights, powers and remedies
under this Indenture, including, without limitation, this Article VII. The
Indenture Trustee further agrees that notice of intent to foreclose shall be
given to the Owner Trustee at the earlier of the commencement of any
proceeding or at least 30 days prior to the consummation of foreclosure of the
Lien of this Indenture.
(b) If an Indenture Event of Default under clause (iv), (v) or (vi)
of Section 7.01 hereof shall occur and be continuing, the unpaid principal of
all Outstanding Certificates, together with interest accrued but unpaid
thereon and all other amounts due thereunder, but without Make-Whole Premium,
shall immediately become due and payable, without presentment, demand, protest
or notice, all of which are hereby waived.
(c) If any Indenture Event of Default not described in the preceding
paragraph (b) shall have occurred and be continuing, then and in every such
case, the Indenture Trustee may on its own accord or at the direction of
Holders of not less than 25% in aggregate principal amount of Outstanding
Certificates, at any time, by written notice to the Owner Trustee, the Owner
Participant and the Lessee, declare the principal of all the Certificates to
be due and payable, whereupon the unpaid principal amount of all Outstanding
Certificates, together with accrued interest thereon and all other amounts due
thereunder, but without Make-Whole Premium, shall immediately become due and
payable without presentment, demand, protest or other notice, all of which are
hereby waived. At any time after such declaration and prior to the sale or
disposition of the Trust Indenture Estate, however, the Holders of not less
than 50% in aggregate principal amount of Outstanding Certificates, by notice
to the Indenture Trustee, the Owner Trustee and the Lessee, may rescind such
declaration, whether made by the Indenture Trustee on its own accord or as
directed, if (x) there has been paid or deposited with the Indenture Trustee a
sum sufficient to pay all overdue installments of interest on all Certificates
(together, to the extent permitted by law, with interest on such overdue
installments of interest), the principal on any Certificates that has become
due otherwise than by such declaration of acceleration, all sums paid or
advanced by the Indenture Trustee hereunder and the reasonable compensation,
expenses, disbursements and advances of the Indenture Trustee, its agents and
counsel, or (y) all Indenture Events of Default (other than the nonpayment of
principal that has become due solely because of such acceleration) have been
either cured or waived as provided in Section 7.11 hereof. No such rescission
shall affect any subsequent default or impair any right consequent thereon.
(d) Each Holder shall be entitled at any sale to credit against any
purchase price bid at such sale by such Holder all or any part of the unpaid
obligations owing to such Holder secured by the Lien of this Indenture (but
only to the extent that an amount equal to such purchase price would have been
paid to such Holder pursuant to Article V hereof if such purchase price were
paid in cash and the foregoing provisions of this subsection (d) were not
given effect).
Section 7.03. Return of Aircraft, etc. Subject to Section 7.02
hereof: (a) If an Indenture Event of Default shall have occurred and be
continuing, at the request of the Indenture Trustee, the Owner Trustee shall
promptly execute and deliver to the Indenture Trustee such documents as the
Indenture Trustee may deem necessary or advisable to enable the Indenture
Trustee or an agent or representative designated by the Indenture Trustee, at
such time or times and place or places as the Indenture Trustee may specify,
to obtain possession of all or any part of the Trust Indenture Estate to which
the Indenture Trustee shall at the time be entitled under this Indenture.
Subject to the foregoing, if the Owner Trustee shall for any reason fail to
execute and deliver such documents after such request by the Indenture
Trustee, the Indenture Trustee may pursue all or part of such Trust Indenture
Estate wherever it may be found and enter any of the premises of the Lessee or
the Owner Trustee wherever such Trust Indenture Estate may be or be supposed
to be and search for such Trust Indenture Estate and take possession of and
remove such Trust Indenture Estate. All expenses of pursuing, searching for
and taking such Trust Indenture Estate shall, until paid, be secured by the
Lien of this Indenture.
(b) Upon every such taking of possession, the Indenture Trustee may,
from time to time, at the expense of the Trust Indenture Estate, make all such
expenditures for maintenance, insurance and repairs to and of such Trust
Indenture Estate, as the Indenture Trustee may reasonably deem proper. In
each case subject to Section 7.02 hereof, the Indenture Trustee shall have the
right to maintain, use, operate, store, lease, control or manage the Trust
Indenture Estate and to carry on the business and to exercise all rights and
powers of the Owner Participant and the Owner Trustee relating to the Trust
Indenture Estate, as the Indenture Trustee may reasonably deem best, including
the right to enter into any and all such agreements with respect to the
maintenance, insurance, use, operation, storage, leasing, control, management
or disposition of all or any part of the Trust Indenture Estate as the
Indenture Trustee may determine. Further, the Indenture Trustee shall be
entitled to collect and receive directly all tolls, rents (including Rent),
revenues, issues, income, products and profits of the Trust Indenture Estate
other than Excepted Payments, without prejudice, however, to the right of the
Indenture Trustee under any provision of this Indenture to collect and receive
all cash held by, or required to be deposited with, the Indenture Trustee
under this Indenture. Such tolls, rents (including Rent), revenues, issues,
income, products and profits shall be applied to pay the expenses of the use,
operation, storage, leasing, control, management, or disposition of the Trust
Indenture Estate, and of all maintenance and repairs, and to make all payments
which the Indenture Trustee may be required or may reasonably elect to make
for any taxes, assessments, insurance or other proper charges upon the Trust
Indenture Estate (including the employment of engineers and accountants to
examine, inspect and make reports upon the properties and books and records of
the Owner Trustee and the Lessee), and all other payments which the Indenture
Trustee may be required or authorized to make under any provision of this
Indenture, as well as just and reasonable compensation for the services of the
Indenture Trustee and of all persons properly engaged and employed for such
purposes by the Indenture Trustee; provided, that any excess amounts shall be
promptly distributed in accordance with Section 5.03 hereof.
(c) Subject to Section 7.02 hereof, if an Indenture Event of
Default shall have occurred and be continuing and the Indenture Trustee shall
be entitled to exercise remedies hereunder, and subject to Article VIII
hereof, the Indenture Trustee, either with or without taking possession, and
either before or after taking possession, and without instituting any legal
proceedings whatsoever, may sell, assign, transfer and deliver the whole or,
from time to time, to the extent permitted by law, any part of the Trust
Indenture Estate, or any part thereof, or interest therein, at any private
sale or public auction to the highest bidder, with or without demand,
advertisement or notice, except that in respect of any private sale 30 days
prior written notice by registered mail to the Owner Trustee and the Owner
Participant will be provided, for cash or, with the consent of the Owner
Trustee and the Owner Participant, credit or for other property, for immediate
or future delivery, and for such price or prices and on such terms as the
Indenture Trustee in exercising reasonable commercial discretion may
determine; provided, that any such action shall be at the time lawful and that
all mandatory legal requirements shall be complied with. Any notice required
pursuant to the terms hereof in the case of a public sale, shall state the
time and place fixed for such sale. Any such public sale shall be held at
such time or times within ordinary business hours as the Indenture Trustee
shall fix in the notice of such sale. At any such sale, the Trust Indenture
Estate may be sold in one lot as an entirety or in separate lots. The
Indenture Trustee shall not be obligated to make any sale pursuant to such
notice. The Indenture Trustee may, without notice or publication, adjourn any
public or private sale or cause the same to be adjourned from time to time by
announcement at the time and place fixed for such sale, and any such sale may
be made at any time or place to which the same may be so adjourned without
further notice or publication. The Indenture Trustee may exercise such right
of sale without possession or production of the Certificates or proof of
ownership thereof, and as representative of the Holders may exercise such
right without notice to the Holders or without including the Holders as
parties to any suit or proceedings relating to the foreclosure of any part of
the Trust Indenture Estate. The Owner Trustee shall execute any and all such
bills of sale, assignments and other documents, and perform and do all other
acts and things requested by the Indenture Trustee in order to permit
consummation of any sale of the Trust Indenture Estate in accordance with this
Section 7.03(c) and to effectuate the transfer or conveyance referred to in
the first sentence of this Section 7.03(c). Notwithstanding any other
provision of this Indenture, the Indenture Trustee shall not sell the Trust
Indenture Estate or any part thereof unless the Certificates shall have been
accelerated.
(d) To the extent permitted by applicable law, and subject to
Section 7.02 hereof, the Indenture Trustee or any Holder may be a purchaser of
the Trust Indenture Estate or any part thereof or any interest therein at any
sale thereof, whether pursuant to foreclosure or power of sale or otherwise.
The Indenture Trustee may apply against the purchase price therefor the amount
then due hereunder or under any of the Certificates secured hereby and any
Holder may apply against the purchase price therefor the amount then due to it
hereunder, under any other Indenture Document or under the Certificates held
by such Holder to the extent of such portion of the purchase price as it would
have received had it been entitled to share any distribution thereof. The
Indenture Trustee or any Holder or nominee thereof shall, upon any such
purchase, acquire good title to the property so purchased, free of the Lien of
this Indenture and, to the extent permitted by applicable law, free of all
rights of redemption in the Owner Trustee or the Owner Participant in respect
of the property so purchased.
(e) The Indenture Trustee shall, as a matter of right, be entitled to
the appointment of a receiver (who may be the Indenture Trustee or any
successor or nominee) for all or any part of the Trust Indenture Estate,
whether such receivership be incidental to a proposed sale of the Trust
Indenture Estate or the taking of possession thereof or otherwise, and the
Owner Trustee hereby consents to the appointment of such receiver and will not
oppose any such appointment. Any receiver appointed for all or any part of
the Trust Indenture Estate shall be entitled to exercise all of the rights and
powers of the Indenture Trustee with respect to the Trust Indenture Estate.
Section 7.04. Indenture Trustee May Prove Debt. If the Owner
Trustee shall fail to pay any amount payable hereunder or under the
Certificates, the Indenture Trustee, in its own name and as trustee of an
express trust, shall be entitled and empowered to institute any action or
proceedings at law or in equity for the collection of the sums so due and
unpaid, and may prosecute any such action or proceedings to judgment or final
decree, and may enforce any such judgment or final decree against the Owner
Trustee and collect in the manner provided by law out of the property of the
Owner Trustee wherever situated, the moneys adjudged or decreed to be payable;
provided, that any sale of any portion of the Trust Indenture Estate shall be
done in accordance with Sections 7.02 and 7.03(c) hereof.
In case there shall be pending proceedings relative to the Owner
Trustee under the Bankruptcy Code or any other applicable Federal or state
bankruptcy, insolvency or other similar law, or in case a receiver, assignee
or trustee in bankruptcy or reorganization, liquidator, sequestrator or
similar official shall have been appointed for or taken possession of the
Owner Trustee or its property, or in case of any other comparable judicial
proceedings relative to the Owner Trustee, or to the creditors or property of
the Owner Trustee, the Indenture Trustee, irrespective of whether the
principal of the Certificates shall then be due and payable as therein or
herein expressed or by declaration or otherwise and irrespective of whether
the Indenture Trustee shall have made any demand pursuant to the provisions of
this Section, shall be entitled and empowered, by intervention in such
proceedings or otherwise:
(a) to file and prove a claim or claims for the whole amount of
principal, interest and other amounts owing and unpaid in respect of the
Certificates or hereunder, and to file such other papers or documents as
may be necessary or advisable in order to have the claims of the Indenture
Trustee (including any claim for reasonable compensation to the Indenture
Trustee and each predecessor Indenture Trustee, and their respective
agents, attorneys and counsel, and for reimbursement of the Indenture
Trustee and each predecessor Indenture Trustee, except as a result of
negligence or bad faith) and of the Holders allowed in any judicial
proceedings relative to the Owner Trustee or to the creditors or property of
the Owner Trustee,
(b) unless prohibited by applicable law and regulations, to vote on
behalf of the Holders in any election of a trustee or a standby trustee in
arrangement, reorganization, liquidation or other bankruptcy or insolvency
proceedings or person performing similar functions in comparable
proceedings, and
(c) to collect and receive any moneys or other property payable or
deliverable on any such claims, and to distribute all amounts received with
respect to the claims of the Holders and of the Indenture Trustee on their
behalf;
and any trustee, receiver, or liquidator, custodian or other similar official
is hereby authorized by each of the Holders to make payments to the Indenture
Trustee, and, in the event that the Indenture Trustee shall consent to the
making of payments directly to the Holders, to pay to the Indenture Trustee
such amounts as shall be sufficient to cover reasonable compensation to the
Indenture Trustee, each predecessor Indenture Trustee and their respective
agents, attorneys and counsel, and all other expenses and liabilities
incurred, and all advances made, by the Indenture Trustee and each predecessor
Indenture Trustee except as a result of negligence or willful misconduct.
Nothing contained herein shall be deemed to authorize the Indenture
Trustee to authorize or consent to or vote for or accept or adopt on behalf of
any Holder any plan of reorganization, arrangement, adjustment or composition
affecting the Certificates or the rights of any Holder thereof, or to
authorize the Indenture Trustee to vote in respect of the claim of any Holder
in any such proceeding except, as aforesaid, to vote for the election of a
trustee in bankruptcy or similar person.
All rights of action and rights to assert claims under this
Indenture, or under any of the Certificates, may be enforced by the Indenture
Trustee without the possession of such Certificates on any trial or other
proceedings instituted by the Indenture Trustee shall be brought in its own
name as trustee of an express trust, and any recovery of judgment, subject to
the payment of the expenses, disbursements and compensation of the Indenture
Trustee, each predecessor Indenture Trustee and their respective agents and
attorneys, shall be for the ratable benefit of the Holders, as provided herein.
In any proceedings brought by the Indenture Trustee (and also any
proceedings involving the interpretation of any provision of this Indenture to
which the Indenture Trustee shall be a party) the Indenture Trustee shall be
held to represent all the Holders of the Certificates, and it shall not be
necessary to make any Holders parties to such proceedings.
Section 7.05. Remedies Cumulative. Each and every right, power and
remedy given to the Indenture Trustee in this Indenture shall be cumulative
and shall be in addition to every other right, power and remedy specifically
given herein or now or hereafter existing at law, in equity or by statute, and
each and every right, power and remedy whether specifically given herein or
otherwise existing may be exercised from time to time and as often and in such
order as may be deemed expedient by the Indenture Trustee or the Holders, and
the exercise or the beginning of the exercise of any power or remedy shall not
be construed to be a waiver of the right to exercise at the same time or later
any other right, power or remedy. No delay or omission by the Indenture
Trustee or of any Holder in the exercise of any right, remedy or power or in
the pursuance of any remedy shall impair any such right, power or remedy or be
construed to be a waiver of any default on the part of the Owner Trustee or
the Lessee or to be an acquiescence in any such default.
Section 7.06. Suits for Enforcement. If an Indenture Event of
Default has occurred, has not been waived and is continuing, the Indenture
Trustee may in its discretion and subject to its rights of appropriate
indemnification under Sections 7.08 and 9.03 and Article XI hereof proceed to
protect and enforce its rights and rights of the Holders by such appropriate
judicial proceedings as the Indenture Trustee shall deem most effectual to
protect and enforce any of such rights, either at law or in equity or in
bankruptcy or otherwise, whether for the specific enforcement of any covenant
or agreement contained in this Indenture or in aid of the exercise of any
power granted in this Indenture or to enforce any other legal or equitable
right vested in the Indenture Trustee or the Holders by this Indenture or by
law; provided, that any sale of any portion of the Trust Indenture Estate
shall be done in accordance with Sections 7.02 and 7.03(c) hereof.
Section 7.07. Discontinuance of Proceedings. In case the Indenture
Trustee or any Holder shall have instituted any proceeding to enforce any
right, power or remedy under this Indenture by foreclosure, entry or
otherwise, and such proceeding shall have been discontinued or abandoned for
any reason or shall have been determined adversely to the Indenture Trustee or
such Holder, then the Owner Trustee, the Indenture Trustee, the Owner
Participant, the Holders and the Lessee shall, subject to any binding
determination in such proceeding, be restored to their former positions and
rights under this Indenture with respect to the Trust Indenture Estate, and all
rights, remedies and powers of the Indenture Trustee and the Holders shall
continue as if no such proceeding had been instituted.
Section 7.08. Limitations on Suits by Holders. No Holder of any
Certificate shall have any right by virtue or by availing of any provision of
this Indenture to institute any action or proceeding at law or in equity or in
bankruptcy or otherwise upon or under or with respect to this Indenture, or
for the appointment of a trustee, receiver, liquidator, custodian or other
similar official or for any other remedy hereunder, unless such Holder
previously shall have given to the Indenture Trustee written notice that an
Indenture Event of Default shall then have occurred and be continuing, as
hereinbefore provided, and the Holders of not less than 25% in aggregate
principal amount of Outstanding Certificates shall have made written request
upon the Indenture Trustee to institute such action or proceedings in its own
name as trustee hereunder and shall have offered to the Indenture Trustee such
reasonable indemnity as it may require against the costs, expenses and
liabilities to be incurred therein or thereby and the Indenture Trustee for 60
days after its receipt of such notice, request and offer of indemnity shall
have failed to institute any such action or proceedings and no direction
inconsistent with such written request shall have been given to the Indenture
Trustee pursuant to Section 7.10 hereof; it being understood and intended, and
being expressly covenanted by the Holder of each Certificate with every other
Holder of each other Certificate and the Indenture Trustee, that no one or
more Holders shall have any right in any manner whatever to affect, disturb or
prejudice the rights of any other Holder or the Lien of this Indenture or any
part of the Trust Indenture Estate or to obtain or seek to obtain priority
over or preference to any other such Holder or to enforce any right under this
Indenture, except in the manner provided herein and for the equal, ratable and
common benefit of all Holders. For the protection and enforcement of the
provisions of this Section, each and every Holder and the Indenture Trustee
shall be entitled to such relief as can be given either at law or in equity.
Section 7.09. Unconditional Right of Holders to Receive Principal,
Interest and Make-Whole Premium, and to Institute Certain Suits.
Notwithstanding any other provision in this Indenture and any provision of any
Certificate, the right of any Holder to receive payment of the principal of
and interest and Make-Whole Premium, if any, on such Certificate on or after
the respective due dates and in the manner expressed in such Certificate, or,
subject to Section 7.08 hereof, to institute suit for the enforcement of any
such payment on or after such respective dates as provided herein, shall not
be impaired or affected without the consent of such Holder.
Section 7.10. Control by Holders. The Majority in Interest of
Certificate Holders shall have the right to direct the Indenture Trustee as to
the time, method, and place of conducting any proceeding for any remedy
available to the Indenture Trustee, or exercising any trust or power conferred
on the Indenture Trustee by this Indenture; provided that such direction shall
not be otherwise than in accordance with law and the provisions of this
Indenture and the Indenture Trustee shall have received, to the extent
provided in Sections 7.08 and 9.03 and Article XI hereof, such reasonable
indemnification as it may require against the costs, expenses and liabilities
to be incurred by the Indenture Trustee; and provided further that (subject to
the provisions of Section 9.02 hereof) the Indenture Trustee shall have the
right to decline to follow any such direction if the Indenture Trustee, being
advised by counsel, shall determine that the action or proceeding so directed
may not lawfully be taken or if the Indenture Trustee in good faith by its
board of directors, the executive committee, or a trust committee of directors
or Responsible Officers of the Indenture Trustee shall determine that the
action or proceedings so directed would involve the Indenture Trustee in
personal liability or if the Indenture Trustee in good faith shall so
determine that the actions or forebearances specified in or pursuant to such
direction shall be unduly prejudicial to the interests of Holders not joining
in the giving of said direction, it being understood that (subject to Section
9.02 hereof) the Indenture Trustee shall have no duty to ascertain whether or
not such actions or forebearances are unduly prejudicial to such Holders.
Nothing in this Indenture shall impair the right of the Indenture
Trustee in its discretion to take any action deemed proper by the Indenture
Trustee and which is not inconsistent with the direction by the Majority in
Interest of Certificate Holders.
Section 7.11. Waiver of Past Indenture Default. Upon written
instructions from the Majority in Interest of Certificate Holders, the
Indenture Trustee shall waive any past Indenture Default and its consequences
and upon any such waiver such Indenture Default shall cease to exist and any
Indenture Event of Default arising therefrom shall be deemed to have been
cured for every purpose of this Indenture, but no such waiver shall extend to
any subsequent or other Indenture Default or impair any right consequent
thereon; provided, however, that in the absence of written instructions from
all Holders and each Liquidity Provider, the Indenture Trustee shall not waive
any Indenture Default (a) in the payment of the principal of or Make-Whole
Premium, if any, or interest on, or other amounts due under, any Certificate
then Outstanding, or (b) in respect of a covenant or provision of this
Indenture which, under Article XIII hereof, cannot be modified or amended
without the consent of each Holder.
Section 7.12. Notice of Indenture Default. The Indenture Trustee
shall transmit to the Owner Trustee, the Holders and to the Owner Participant
notice of any Indenture Defaults actually known to a Responsible Officer of
the Indenture Trustee, such notice to be transmitted by mail to the Holders
within 90 days, and to the Owner Trustee and the Owner Participant promptly
after the occurrence thereof, unless such Indenture Default shall have been
cured before the giving of such notice; provided that except in the case of a
default in the payment of the principal of or interest on any Certificate,
under no circumstances shall the Indenture Trustee give such notice to the
Holders until the expiration of a period of 60 days from the occurrence of such
Indenture Default; and provided further that, except in the case of default in
the payment of the principal of or interest on or any other amount due under
any of the Certificates, the Indenture Trustee shall be protected in
withholding such notice to the Holders if and so long as the board of
directors, the executive committee, or a trust committee of directors or
trustees and/or Responsible Officers of the Indenture Trustee in good faith
determines that the withholding of such notice is in the interests of the
Holders.
ARTICLE VIII
RIGHTS OF THE OWNER TRUSTEE
AND THE OWNER PARTICIPANT
Section 8.01. Certain Rights of Owner Trustee and Owner Participant.
(a) Subject to Section 13.01 hereof and the provisions of paragraph (a)
immediately following the Granting Clause hereof, without the consent of a
Majority in Interest of Certificate Holders, the respective parties to the
Indenture Documents may not modify, amend or supplement any of said
agreements, or give any consent, waiver, authorization or approval thereunder,
for the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions thereof or of modifying in any manner the
rights of the respective parties thereunder; provided, however, that the
actions specified in subsection (b) of this Section 8.01 may be taken without
the consent of the Indenture Trustee or any Holder.
(b) Subject to the provisions of subsection (c) of this Section
8.01, the Lessor and the respective parties to the Indenture Documents, at any
time and from time to time, without the consent of the Indenture Trustee or of
any Holder, may:
(1) so long as no Indenture Event of Default shall have occurred and
be continuing, modify, amend or supplement the Lease, or give any waiver
with respect thereto, except that without compliance with subsection (a) of
this Section 8.01 the parties to the Lease shall not modify, amend or
supplement, or give any waiver for the purpose of adding any provisions to
or changing in any manner or eliminating any of the provisions thereof or
of modifying in any manner the rights of the respective parties thereunder,
with respect to the following provisions of the Lease as in effect on the
effective date hereof: Article 2 (except in respect of the Term, if the
result thereof would not be to shorten the Term of the Lease to a period
shorter than the period ending with the Maturity of any Certificate),
Section 3.03 (except to the extent such Section relates to amounts payable
(whether directly or pursuant to this Indenture) to Persons other than
Holders, each Liquidity Provider, the Subordination Agent and the Indenture
Trustee in its individual capacity), Section 3.05, Section 3.06 (except
insofar as it relates to the address or account information of the Owner
Trustee or the Indenture Trustee) (other than as such Sections 3.03, 3.05
and 3.06 may be amended pursuant to Section 3.04 of the Lease as in effect
on the effective date hereof), Section 5.01, Article 6, Article 10 (except
that further restrictions may be imposed on the Lessee), Article 11 (except
that additional requirements may be imposed on the Lessee), Article 13
(except for Section 13.05 and except that additional insurance requirements
may be imposed on the Lessee), Article 14 (except in order to increase the
Lessee's liabilities or enhance the Lessor's rights thereunder), Article 15
(except in the case of an assignment by the Lessor in circumstances where
the Aircraft shall remain registrable under the Federal Aviation Act),
Section 16.01 (except to impose additional or more stringent Events of
Default), Article 17 (except to impose additional remedies), Section 19.01
(except to impose additional requirements on the Lessee), Section 20.01,
Article 22, Section 23.01, Section 26.03 and any definition of terms used
in the Lease, to the extent that any modification of such definition would
result in a modification of the Lease not permitted pursuant to this
subsection (b); provided that the parties to the Lease may take any such
action without the consent of the Indenture Trustee or any Holder to the
extent such action relates to the payment of amounts constituting, or the
Owner Trustee's, the Owner Participant's or the Lessee's rights or
obligations with respect to, Excepted Payments (other than the place, time
and manner of payment of any portion of Basic Rent constituting an Excepted
Payment);
(2) modify, amend or supplement the Trust Agreement and any other
Indenture Document (other than the Lease and the Participation Agreement),
or give any consent, waiver, authorization or approval with respect
thereto, in each case only to the extent any such action shall not
materially adversely impact the interests of the Holders;
(3) modify, amend or supplement the Participation Agreement, or give
any consent, waiver, authorization or approval with respect thereto, except
that without compliance with subsection (a) of this Section 8.01 the
parties to the Participation Agreement shall not modify, amend or
supplement, or give any consent, waiver, authorization or approval for the
purpose of adding provisions to or changing in any manner or eliminating
any of the provisions thereof or of modifying in any manner the rights of
the respective parties thereunder, with respect to the following provisions
of the Participation Agreement as in effect on the effective date hereof:
Article 6 and Section 10.01(b) (insofar as such Article 6 and Section
10.01(b) relate to the Indenture Trustee, the Pass Through Trustee and the
Holders), Article 7 and Sections 3.05, 15.01, 17.02 and 17.11 and Articles
8 and 9 (insofar as such Articles relate to the Indenture Trustee; it being
understood that only the Indenture Trustee's consent in respect thereof
need be obtained) and any definition of terms used in the Participation
Agreement, to the extent that any modification of such definition would
result in a modification of the Participation Agreement not permitted
pursuant to this subsection (b); and
(4) modify, amend or supplement any of said agreements in order to
cure any ambiguity, to correct or supplement any provisions thereof which
may be defective or inconsistent with any other provision thereof or of any
provision of this Indenture, or to make any other provision with respect to
matters or questions arising thereunder or under this Indenture which shall
not be inconsistent with the provisions of this Indenture, provided the
making of any such other provision shall not adversely affect the interests
of the Holders.
(c) No modification, amendment, supplement, consent, waiver,
authorization or approval with respect to the Lease or the Participation
Agreement, whether effected pursuant to subsection (a) or pursuant to
subsection (b) of this Section 8.01 and anything in such subsections or
elsewhere in this Indenture to the contrary notwithstanding, shall, without
the consent of the Holder of each Outstanding Certificate affected thereby,
and each Liquidity Provider,
(1) modify, amend or supplement the Lease in such a way as to extend
the time of payment of Basic Rent or Stipulated Loss Value or Supplemental
Rent payable to the Holders or any Liquidity Provider or any other amounts
payable for the account of the Holders or any Liquidity Provider (subject
in any event to Section 3.05 of the Lease) upon the occurrence of an Event
of Loss or Termination Value and any other amounts payable for the account
of the Holders (subject in any event to Section 3.05 of the Lease) upon
termination of the Lease with respect to the Aircraft payable under, or as
provided in, the Lease as in effect on the effective date hereof, or reduce
the amount of any installment of Basic Rent or Supplemental Rent so that
the same is less than the payment of principal of, and interest on the
Certificates and Make-Whole Premium, if any, and amounts due to each
Liquidity Provider, as the case may be, to be made from such installment of
Basic Rent or Supplemental Rent, or reduce the aggregate amount of
Stipulated Loss Value, or any other amounts payable under, or as provided
in, the Lease as in effect on the effective date hereof upon the occurrence
of an Event of Loss so that the same is less than the accrued interest on
and the principal as of the Loss Payment Date, of the Certificates at the
time Outstanding or reduce the amount of Termination Value and any other
amounts payable under, or as provided in, the Lease as in effect on the
effective date hereof upon termination of the Lease with respect to the
Aircraft so that the same is less than the accrued interest on and
principal as of the Lease Termination Date and Make-Whole Premium, if any,
of Certificates at the time Outstanding, or
(2) modify, amend or supplement the Lease in such a way as to, or
consent to any assignment of the Lease or give any consent, waiver,
authorization or approval which would, release the Lessee from its absolute
and unconditional obligations in respect of payment of Basic Rent or
Supplemental Rent, or Stipulated Loss Value and any other amounts payable
for the account of the Holders (subject in any event to Section 3.05 of the
Lease) upon the occurrence of an Event of Loss, or Termination Value and
any other amounts payable for the account of the Holders (subject in any
event to Section 3.05 of the Lease) with respect to the Aircraft, payable
under, or as provided in, the Lease as in effect on the effective date
hereof, except for any such assignment pursuant to Section 2.12 hereof, and
except as provided in the Lease as in effect on the effective date hereof.
(d) At all times so long as this Indenture is in effect, the consent
of the Owner Trustee (at the direction of the Owner Participant) shall be
required in order (i) to amend, modify or supplement the Lease or any other
Operative Document to which the Owner Trustee is a party or to waive
compliance by the Lessee with any of its obligations thereunder and (ii) to
grant any consent requested under the Lease.
Notwithstanding the foregoing, but subject always to the provision of Section
15.05 hereof, the Indenture Trustee shall at all times have the right, to the
exclusion of the Owner Trustee and the Owner Participant, to (A) declare the
Lease to be in default under Article 17 (other than with respect to Excepted
Payments) thereof and (B) subject only to the provisions of this Indenture,
exercise the remedies set forth in such Article 17 of the Lease (other than in
connection with Excepted Payments) and in Article 7 hereof.
Nothing in this Indenture shall be deemed to prohibit the Owner
Participant or the Owner Trustee from making demand on the Lessee for, or from
commencing an action at law to obtain the payment of, or from receiving
payment of, any Excepted Payment; provided, however, that if the Owner Trustee
is proceeding under the Lease, the Owner Trustee shall proceed pursuant to
Section 17.01(a)(v), and only Section 17.01(a)(v), of the Lease.
Section 8.02. Owner Participant's Right to Elect to Prepay or
Purchase the Certificates. (a) If (i) an Event of Default shall have occurred
and be continuing for more than 180 days or the Certificates shall have become
due and payable pursuant to Section 7.02(b) or (c) hereof or (ii) an Event of
Default shall have occurred and be continuing for not more than 180 days and
the Certificates shall not have become due and payable pursuant to Section
7.02(b) or (c) hereof, the Owner Participant (or the Owner Trustee on behalf
of the Owner Participant) may, but shall be under no obligation to, do either
of the following:
(1) direct the Owner Trustee to cause the prepayment of all, but not
less than all, of the Certificates then Outstanding by notifying the
Indenture Trustee of such election, which notice in order to be effective
shall state that it is irrevocable (except as provided below) and shall
designate a Prepayment Date which shall be a Business Day which shall be
not less than 15 days after the date of such notice on which the Owner
Trustee shall, in the manner provided for in Section 6.04 hereof, deposit
the sum of amounts contemplated by paragraph "first" under Section 5.03 and
the aggregate Prepayment Price (determined in accordance with Section
6.02(b) hereof) of all such Certificates with the Indenture Trustee. If
such payment by the Owner Trustee to the Indenture Trustee is made, the
Certificates shall cease to accrue interest from and after the Prepayment
Date, and after distribution of such payment to the Holders, the Indenture
Trustee shall release the Trust Indenture Estate from the Lien of this
Indenture; or
(2) purchase all, but not less than all, of the Outstanding
Certificates by notifying the Indenture Trustee of such election, which
notice in order to be effective shall state that it is irrevocable (except
as provided below) and shall designate a date which shall be a Business Day
which shall be not less than 15 days after the date of such notice on which
the Owner Trustee shall pay to the Indenture Trustee an amount equal to the
aggregate unpaid principal amount of all Outstanding Certificates, together
with accrued interest on such amount to the date of purchase, the aggregate
amount of any Make-Whole Premium applicable to each Outstanding Certificate
(if such purchase occurs prior to the Premium Termination Date for such
Outstanding Certificate) in the case of a purchase pursuant to clause
(a)(ii) above (but not if such purchase is pursuant to clause (a)(i)
above), plus all other sums due any Holder or the Indenture Trustee
hereunder or under the Participation Agreement or the Lease. Upon receipt
by the Indenture Trustee of such amount, each Holder will be deemed,
whether or not Certificates shall have been delivered to the Indenture
Trustee on such date, to have thereupon sold, assigned, transferred and
conveyed (and shall promptly take such actions as the Owner Participant
shall reasonably request to evidence such sale, assignment, transfer and
conveyance) to the Owner Participant (without recourse or warranty of any
kind except for its own acts), all of the right, title and interest of such
Holder in and to the Trust Indenture Estate and this Indenture and all
Certificates held by such Holder and the former Holders shall not be
entitled to receive any interest on the principal amount of such
Certificates after the purchase date, and the Owner Participant shall be
deemed to have assumed (and shall promptly take such actions as any Holder
shall reasonably request to evidence such assumption) all of such Holder's
obligations under the Participation Agreement and this Indenture arising
subsequent to such sale. If the Owner Trustee shall so request, such
Holder will comply with all the provisions of Section 2.06 of this
Indenture to enable new Certificates to be issued to the Owner Participant
in such authorized denominations as the Owner Participant shall request.
All charges and expenses required pursuant to Section 2.06 hereof in
connection with the issuance of any such new Certificates shall be borne by
the Owner Participant.
(b) From and after the deposit by the Owner Trustee of the applicable
Prepayment Price or purchase price with the Indenture Trustee pursuant to
Section 8.02(a) hereof, the Owner Trustee shall be entitled to exercise all
remedies of the Indenture Trustee under Article VII hereof as well as of the
Lessor under the Lease.
(c) Any election to prepay or purchase the Certificates under this
Section 8.02 shall be irrevocable, provided that if on the specified date for
prepayment or purchase, the Event of Default giving rise to such election
shall no longer be continuing under the Lease such election shall be deemed to
be automatically withdrawn.
Section 8.03. Certain Rights of Owner Participant. (a) If (A)
there shall occur an Event of Default under the Lease as a result of the
Lessee's failure to make any payment of an installment of Basic Rent, and (B)
the Owner Trustee shall have paid or caused to be paid on or prior to the date
which is 15 Business Days after the Owner Participant's receipt of written
notice of such Event of Default all principal and interest on the Certificates
then due (as well as any interest on overdue principal and (to the extent
permitted by applicable law) interest), but not including any principal or
interest becoming due on account of such Event of Default, then the failure of
the Lessee to make the payment of such installment of Basic Rent or of
interest on account of such installment's being overdue shall not constitute
or result in an Indenture Event of Default under this Indenture and any
declaration based solely on the same shall be deemed to be automatically
rescinded. Nothing contained in the preceding sentence shall be deemed to
entitle the Owner Trustee to exercise any rights and powers or pursue any
remedies pursuant to Article 17 of the Lease or otherwise except as set forth
in this Indenture, and except that the Owner Trustee or the Owner Participant
may attempt to recover any amount paid by it or them under this Indenture by
demanding of the Lessee payment of such amount, or by commencing an action at
law or equity against the Lessee for the payment of such amount or taking
appropriate action in a pending action at law against the Lessee pursuant to
Section 17.01(a)(v), but only said Section 17.01(a)(v), of the Lease. Upon
curing any such Event of Default pursuant to this Section 8.03, the Owner
Trustee or the Owner Participant, as the case may be, shall be subrogated on
an unsecured basis to all the rights of the Indenture Trustee under the Lease
in respect of the payment giving rise to such Event of Default, and any right
to any interest in respect of the same, and shall be entitled to any payment
of Basic Rent (or interest thereon) actually made by the Lessee in respect of
such cured payment upon receipt by the Indenture Trustee; provided that no such
amount shall be paid to the Owner Trustee or the Owner Participant until all
amounts then due and payable to each Certificate Holder hereunder and
thereunder shall have been paid in full and no Indenture Event of Default
shall have occurred and be continuing. Notwithstanding anything in this
Indenture or the Lease to the contrary, the Owner Participant and the Owner
Trustee collectively, shall not be entitled to cure more than six (6) Events
of Default (no more than three (3) of which may be consecutive) occasioned by
defaults in the payment of Basic Rent.
(b) If (A) there shall occur an Event of Default under the Lease for
any reason other than the Lessee's failure to make any payment of an
installment of Basic Rent and (B) the Owner Trustee shall have taken or caused
to be taken such action necessary to cure and shall have cured such Event of
Default prior to the date which is 15 Business Days after the Owner
Participant's receipt of the written notice of such Event of Default, then
the failure of the Lessee to perform such covenant, condition or agreement,
the observance or performance of which was accomplished by the Owner Trustee
hereunder shall not constitute or result in an Indenture Event of Default under
this Indenture and any declaration based solely on the same shall be deemed to
be automatically rescinded. Nothing contained in the preceding sentence shall
be deemed to entitle the Owner Trustee or the Owner Participant to exercise
any rights and powers or pursue any remedies pursuant to Article 17 of the
Lease or otherwise except as set forth in this Indenture, and except that the
Owner Trustee or the Owner Participant may attempt to recover any amount paid
by it or them in effecting such cure by demanding of the Lessee payment of
such amount, plus any interest due, or by commencing an action at law or in
equity against the Lessee for the payment of such amount or taking appropriate
action in a pending action at law or in equity against the Lessee pursuant to
Section 17.01(a)(v), but only said Section 17.01(a)(v), of the Lease. Upon
curing any such Event of Default pursuant to this Section 8.03(b), the Owner
Trustee or the Owner Participant, as the case may be, shall be subrogated to
all the rights of the Indenture Trustee under the Lease in respect of the
payment, agreement or covenant giving rise to such Event of Default, and any
right to any interest in respect of the same, and shall be entitled to any
payment or other performance upon receipt by the Indenture Trustee; provided
that no such amount shall be paid to the Owner Trustee or the Owner
Participant until all amounts then due and payable to each Certificate Holder
hereunder and thereunder shall have been paid in full and no Indenture Event
of Default shall have occurred and be continuing.
ARTICLE IX
CONCERNING THE INDENTURE TRUSTEE
Section 9.01. Acceptance of Trusts. The Indenture Trustee in its
individual capacity hereby accepts the trusts imposed upon it by this
Indenture, and covenants and agrees to perform the same as expressed herein
and agrees to receive and disburse all moneys constituting part of the Trust
Indenture Estate in accordance with the terms hereof.
Section 9.02. Duties and Responsibilities of the Indenture Trustee;
During an Indenture Event of Default; Prior to an Indenture Event of Default.
(a) The Indenture Trustee, prior to the occurrence of an Indenture Event of
Default and after the curing or waiving of all Indenture Events of Default
which may have occurred, undertakes to perform such duties and only such
duties as are specifically set forth in this Indenture. So long as an
Indenture Event of Default has occurred and has not been cured or waived, the
Indenture Trustee shall exercise such of the rights and powers vested in it by
this Indenture, and use the same degree of care and skill in their exercise,
as a prudent man would exercise or use under the circumstances in the conduct
of his own affairs. No provision of this Indenture shall be construed to
relieve the Indenture Trustee from liability for its own negligent action, its
own negligent failure to act or its own willful misconduct, except that:
(i) prior to the occurrence of an Indenture Event of Default and
after the curing or waiving of all Indenture Events of Default which may have
occurred:
(x) the duties and obligations of the Indenture Trustee shall be
determined solely by the express provisions of this Indenture, and the
Indenture Trustee shall not be liable except for the performance of such
duties and obligations as are specifically set forth in this Indenture, and no
implied covenants or obligations shall be read in to this Indenture against
the Indenture Trustee; and
(y) in the absence of bad faith on the part of the Indenture
Trustee, the Indenture Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed therein, upon any
statements, certificates or opinions furnished to the Indenture Trustee and
conforming to the requirements of this Indenture; but in the case of any such
statements, certificate or opinions which by any provision hereof are
specifically required to be furnished to the Indenture Trustee, the Indenture
Trustee shall be under a duty to examine the same to determine whether or not
they conform to the requirements of this Indenture;
(ii) the Indenture Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer or Responsible Officers
of the Indenture Trustee, unless it shall be proved that the Indenture Trustee
was negligent in ascertaining the pertinent facts; and
(iii) the Indenture Trustee shall not be liable with respect to any
action taken or not taken by it in good faith in accordance with the direction
of the Holders of not less than a majority in aggregate principal amount of
Outstanding Certificates relating to the time, method and place of conducting
any proceeding for any remedy available to the Indenture Trustee, or
exercising any trust or power conferred upon the Indenture Trustee, under this
Indenture.
None of the provisions contained in this Indenture shall require the
Indenture Trustee to expend or risk its own funds or otherwise incur personal
financial liability in the performance of any of its duties or in the exercise
of any of its rights or powers, if the Indenture Trustee shall have determined
in good faith that the repayment of such funds or adequate indemnity against
such liability is not reasonably assured to it.
The Indenture Trustee agrees that it will execute and the Owner
Trustee agrees that it will, at the expense of the Lessee, file or cause to be
filed such continuation statements with respect to financing statements
relating to the security interest created hereunder in the Trust Indenture
Estate as may be specified from time to time in written instructions of the
Holders of not less than 25% in aggregate principal amount of Certificates
(which instructions may, by their terms, be operative only at a future date
and which shall be accompanied by the execution form of such continuation
statement so to be filed); provided that, notwithstanding the foregoing, the
Indenture Trustee may execute and file or cause to be filed any financing
statement which it from time to time deems appropriate.
(b) If any Event of Default shall have occurred and be continuing
and, after the latest date on which the Owner Trustee may cure such Event of
Default pursuant to Section 8.03 hereof, on request of the Holders of not less
than 25% in aggregate principal amount of Outstanding Certificates and subject
to indemnification, to the extent provided in Sections 7.08 and 9.03 and
Article XI hereof, as it may require against the costs, expenses and
liabilities to be incurred, the Indenture Trustee shall exercise such remedies
under Article 17 of the Lease as shall be specified in such request.
(c) The Indenture Trustee agrees that it will, in its individual
capacity and at its own cost and expense (but without any right of indemnity
in respect of any such cost or expense under Article XI hereof) promptly take
such action as may be necessary duly to discharge all Indenture Trustee's
Liens on any part of the Trust Indenture Estate.
(d) The Indenture Trustee will execute and deliver to the Lessee for
filing in accordance with Article 18 of the Lease any properly presented
document, instrument or financing or continuation statement specified in any
opinion delivered pursuant to Section 6.03(e) of the Participation Agreement.
The Indenture Trustee may rely on the act of presentation of any such
document, instrument, financing or continuation statement as evidencing the
fact that it is properly prepared and presented, provided that the Indenture
Trustee shall promptly correct any error in any such document, instrument,
financing or continuation statement of which a Responsible Officer of the
Indenture Trustee has actual knowledge.
(e) The Indenture Trustee will furnish to each Holder promptly upon
receipt thereof, duplicates or copies of all reports, notices, requests,
demands, certificates, financial statements and other instruments furnished to
the Indenture Trustee, to the extent that the same shall not have been
otherwise furnished to such Holder pursuant to this Indenture or to the extent
the Indenture Trustee does not reasonably believe that the same shall have
been furnished by the Lessee directly to such Holder.
Section 9.03. Certain Rights of the Indenture Trustee. Subject to
Section 9.02 hereof:
(a) the Indenture Trustee may rely and shall be protected in acting
or refraining from acting upon any resolution, Officer's Certificate or any
other certificate, statement, instrument, opinion, report, notice, request,
consent, order, bond, debenture, note, coupon, security 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, direction, order or demand of the Owner Trustee
mentioned herein shall be sufficiently evidenced by an Officer's
Certificate (unless other evidence in respect thereof be herein
specifically prescribed) upon which the Indenture Trustee may rely to prove
or establish a matter set forth therein;
(c) the Indenture Trustee may consult with counsel and any advice or
Opinion of Counsel shall be full and complete authorization and protection
in respect of any action taken, suffered or omitted to be taken by it
hereunder in good faith and in accordance with such advice or Opinion of
Counsel;
(d) the Indenture Trustee shall be under no obligation to exercise
any of the trusts or powers vested in it by this Indenture at the request,
order or direction of any of the Holders pursuant to the provisions of this
Indenture, unless such Holders shall have offered to the Indenture Trustee
reasonable security or indemnity against the costs, expenses and
liabilities which might be incurred therein or thereby;
(e) the Indenture Trustee shall not be liable for any action taken
or omitted by it in good faith and believed by it to be authorized or
within the discretion, rights or powers conferred upon it by this Indenture;
(f) prior to the occurrence of an Indenture Event of Default
hereunder and after the curing or waiving of all Indenture Events of
Default, the Indenture Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, approval,
appraisal, bond, debenture, note, coupon, security, or other paper or
document unless requested in writing to do so by the Majority in Interest
of Certificate Holders; provided that, if the payment within a reasonable
time to the Indenture Trustee of the costs, expenses or liabilities likely
to be incurred by it in the making of such investigation is, in the opinion
of the Indenture Trustee, not reasonably assured to the Indenture Trustee
by the security afforded to it by the terms of this Indenture, the
Indenture Trustee may require reasonable indemnity against such costs,
expenses or liabilities as a condition to proceeding; the reasonable
expenses of every such examination shall be paid by the Owner Trustee or,
if paid by the Indenture Trustee or any predecessor trustee, shall be
repaid by the Owner Trustee upon demand; and
(g) the Indenture Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
agents or attorneys not regularly in its employ and the Indenture Trustee
shall not be responsible for any misconduct or negligence on the part of
any such agent or attorney appointed with due care by it hereunder.
Section 9.04. Indenture Trustee Not Responsible for Recitals,
Disposition of Certificates or Application of Proceeds Thereof. The Indenture
Trustee assumes no responsibility for the correctness of the recitals
contained herein and in the Certificates, except the Indenture Trustee's
certificates of authentication. The Indenture Trustee makes no
representation as to the validity or sufficiency of this Indenture or of the
Certificates. The Indenture Trustee shall not be accountable for the use or
application by the Owner Trustee of any of the Certificates or of the proceeds
thereof.
Section 9.05. Indenture Trustee and Agents May Hold Certificates;
Collections, etc. The Indenture Trustee or any agent of the Indenture Trustee
in its individual or any other capacity may become the owner or pledgee of
Certificates with the same rights it would have if it were not the Indenture
Trustee or such agent and may otherwise deal with the Owner Trustee and
receive, collect, hold and retain collections from the Owner Trustee with the
same rights it would have if it were not the Indenture Trustee or such agent.
Section 9.06. Moneys Held by Indenture Trustee. Subject to Sections
5.08 hereof and 14.04 hereof, all moneys received by the Indenture Trustee
shall, until used or applied as herein provided, be held in trust for the
purposes for which they were received, but need not be segregated from other
funds except to the extent required by mandatory provisions of law. Neither
the Owner Trustee nor, subject to Section 5.08 hereof, the Indenture Trustee
nor any agent thereof shall be under any liability for interest on any moneys
received by it hereunder.
Section 9.07. Right of Indenture Trustee to Rely on Officer's
Certificate, etc. Subject to Sections 9.02 and 9.03 hereof, whenever in the
administration of the trusts of this Indenture the Indenture Trustee shall
deem it necessary or desirable that a matter be proved or established prior to
taking or suffering or omitting any action hereunder, such matter (unless
other evidence in respect thereof be specifically prescribed herein) may, in
the absence of bad faith on the part of the Indenture Trustee, be deemed to be
conclusively proved and established by an Officer's Certificate delivered to
the Indenture Trustee, and such certificate, in the absence of bad faith on
the part of the Indenture Trustee, shall be full warrant to the Indenture
Trustee for any action taken, suffered or omitted by it under the provisions
of this Indenture upon the faith thereof.
Section 9.08. Replacement Airframes and Replacement Engines. At any
time and from time to time any Airframe or Engine which has been subject to an
Event of Loss and may, or is required to, be replaced under Section 10.03,
11.03 or 11.04 of the Lease by a Replacement Airframe or Replacement Engine,
as the case may be, shall be replaced in accordance with the provisions of
this Section 9.08 and the provisions of said Sections of the Lease, the Owner
Trustee shall, from time to time, direct the Indenture Trustee to execute and
deliver to or as directed in writing by the Owner Trustee an appropriate
instrument releasing such Airframe and/or Engine as appropriate from the Lien
of this Indenture and the Indenture Trustee shall execute and deliver such
instrument as aforesaid without recourse or warranty, but only upon receipt by
or deposit with the Indenture Trustee of the following:
(1) A written request from the Owner Trustee requesting such release
and specifically describing the Airframe and/or Engine(s) to be so released.
(2) A certificate signed by a duly authorized officer of the Lessee
stating the following:
A. With respect to the replacement of any Airframe:
(i) a description of the Airframe subject to the Event of Loss
including the manufacturer, model, FAA registration number (or other
applicable registration information) and manufacturer's serial number;
(ii) a description of the Replacement Airframe, including the
manufacturer, model, FAA registration number (or other applicable
registration information) and manufacturer's serial number;
(iii) that on the date of the Indenture and Security Agreement
Supplement relating to the Replacement Airframe the Owner Trustee
will be the legal owner of and have good and marketable title to such
Replacement Airframe free and clear of all Liens except Liens
permitted under Section 6.01 of the Lease, that such Replacement
Airframe will on such date be in at least as good operating condition
and repair as required by the terms of the Lease, and that such
Replacement Airframe has been or, substantially concurrently with
such replacement, will be duly registered in the name of the Owner
Trustee under the Transportation Code or under the law then
applicable to the registration of the Airframe subject to the Event
of Loss and that an airworthiness certificate has been duly issued
under the Aviation Act (or such other applicable law) with respect to
such Replacement Airframe and that such registration and certificate
is, or will be, in full force and effect, and that the Lessee will
have the full right and authority to use such Replacement Airframe;
(iv) that the insurance required by Article 13 of the Lease is in
full force and effect with respect to such Replacement Airframe and
all premiums then due thereon have been paid in full;
(v) that the Replacement Airframe is of the same or an improved make
or model as the Airframe requested to be released from this Indenture;
(vi) that the value of the Replacement Airframe as of the date of such
certificate is not less than the value of the Airframe requested to
be released (assuming such Airframe was in the condition and repair
required to be maintained under the Lease);
(vii) that no Event of Default has occurred and is continuing or
would result from the making and granting of the request for release
and the addition of a Replacement Airframe;
(viii) that the release of the Airframe subject to the Event of Loss
will not impair the security of the Indenture in contravention of any
of the provisions of this Indenture;
(ix) that upon such replacement, the Lien of this Indenture will
apply to the Replacement Airframe and such Lien will be a first
priority security interest in favor of the Indenture Trustee; and
(x) that each of the conditions specified in Section 11.03 of the
Lease with respect to such Replacement Airframe has been satisfied.
B. With respect to the replacement of any Engine:
(i) a description of the Engine subject to the Event of Loss
including the manufacturer's serial number;
(ii) a description of the Replacement Engine including the
manufacturer's name, the engine model and serial number;
(iii) that on the date of the Indenture and Security Agreement
Supplement relating to the Replacement Engine the Owner Trustee will
be the legal owner of such Replacement Engine free and clear of all
Liens except Liens permitted under Section 6.01 of the Lease, and
that such Replacement Engine will on such date be in at least as good
operating condition and repair as required by the terms of the Lease
and will otherwise conform to the requirements set forth in the
definition of "Replacement Engine";
(iv) that the value of the Replacement Engine as of the date of such
certificate is not less than the value of the Engine to be released
(assuming such Engine was in the condition and repair required to be
maintained under the Lease);
(v) that the release of the Engine subject to the Event of Loss will
not impair the security of the Indenture in contravention of any of
the provisions of this Indenture;
(vi) that upon such replacement, the Lien of this Indenture will
apply to the Replacement Engine and such Lien will be a first
priority security interest in favor of the Indenture Trustee; and
(vii) that each of the conditions specified in Section 10.03, 11.03
or 11.04 of the Lease with respect to such Replacement Engine has
been satisfied.
(3) The appropriate instruments (i) transferring to the Owner
Trustee title to the Replacement Airframe or Replacement Engine to be received
as consideration for the Airframe or Engine to be released and (ii) assigning
to the Owner Trustee the benefit of all manufacturer's and vendor's
warranties, if any, generally available with respect to such Replacement
Airframe or Replacement Engine, and an Indenture and Security Agreement
Supplement subjecting such Replacement Airframe or Replacement Engine to the
Trust Agreement and to the Lien of this Indenture.
(4) A certificate from a firm of independent aircraft appraisers of
national standing satisfactory to the Indenture Trustee and the Owner Trustee
confirming the accuracy of the information set forth in clause (2)A.(vi) of
this Section 9.08.
(5) The opinion of Davis Polk & Wardwell, special counsel to the
Lessee, or other counsel reasonably satisfactory to the Indenture Trustee,
stating that:
(i) the certificates, opinions and other instruments and/or property
which have been or are therewith delivered to and deposited with the
Indenture Trustee conform to the requirements of this Indenture and the
Lease and, upon the basis of such application, the property so sold or
disposed of may be properly released from the Lien of this Indenture and
all conditions precedent herein provided for relating to such release have
been complied with; and
(ii) the Replacement Airframe or Replacement Engine has been validly
subjected to the Lien of this Indenture and covered by the Lease, the
instruments subjecting such Replacement Airframe or Replacement Engine to
the Lease and to the Lien of this Indenture, as the case may be, have been
duly filed for recordation pursuant to the Transportation Code or any other
law then applicable to the registration of the Aircraft, and no further
action, filing or recording of any document is necessary or advisable in
order to establish and perfect the title of the Owner Trustee to and the
Lien of this Indenture on such Replacement Airframe or Replacement Engine
and the Indenture Trustee would be entitled to the benefits of Section 1110
of the Bankruptcy Code with respect to such Replacement Airframe or
Replacement Engine, provided, that such opinion need not be to the effect
specified in the foregoing clause to the extent that the benefits of such
Section 1110 would not have been, by reason of a change in law or
governmental interpretation thereof after the date hereof, available to the
Indenture Trustee with respect to the Aircraft immediately prior to such
substitution had such Event of Loss not occurred.
Section 9.09. Indenture and Security Agreement Supplement for
Replacements. In the event of the substitution of a Replacement Airframe or a
Replacement Engine as contemplated by Section 10.03 or Article 11 of the
Lease, the Owner Trustee and the Indenture Trustee agree for the benefit of
the Holders and the Lessee, subject to fulfillment of the conditions precedent
and compliance by the Lessee with its obligations set forth in Section 10.03
or Article 11 of the Lease, to execute and deliver an Indenture and Security
Agreement Supplement as contemplated by Section 9.08(3) hereof and, provided
no Event of Default shall have occurred and be continuing, execute and deliver
to the Lessee an appropriate instrument releasing the Airframe or Engine being
replaced from the Lien of this Indenture.
Section 9.10. Effect of Replacement. In the event of the
substitution of a Replacement Airframe or a Replacement Engine as contemplated
by Section 10.01 or Article 11 of the Lease and Section 9.08 hereof, all
provisions of this Indenture relating to the Airframe or Engine or Engines
being replaced shall be applicable to such Replacement Airframe or Replacement
Engine or Engines with the same force and effect as if such Replacement
Airframe or Replacement Engine or Engines were the same Airframe or engine or
engines, as the case may be, as the Airframe or Engine or Engines being
replaced but for the Event of Loss with respect to the Airframe or Engine or
Engines being replaced.
Section 9.11. Compensation. The Owner Trustee covenants and agrees
to pay, and the Indenture Trustee shall be entitled to receive, reasonable
compensation and payment or reimbursement for its reasonable advances,
expenses and disbursements (including the reasonable compensation and expenses
and disbursements of its counsel, agents and other persons not regularly in
its employ) in connection with its services rendered hereunder or in any way
relating to or arising out of the administration of the Trust Indenture Estate
and shall have a priority claim on the Trust Indenture Estate for the payment
of such compensation, advances, expenses and disbursements to the extent that
such compensation, advances, expenses and disbursements shall not be paid by
the Lessee, and shall have the right to use or apply any moneys held by it
hereunder in the Trust Indenture Estate toward such payments; provided that,
so long as the Lease is in effect, the Indenture Trustee shall not make any
claim for payment under this Section 9.11 against the Owner Trustee without
first making demand on the Lessee for payment of such claim. The Indenture
Trustee agrees that it shall have no right against any Holder, SSB or the
Owner Participant for any fee as compensation for its services as trustee
under this Indenture.
ARTICLE X
CONCERNING THE HOLDERS
Section 10.01. Evidence of Action Taken by Holders. (a) Any
request, demand, authorization, direction, notice, consent, waiver or other
action provided by this Indenture to be given or taken by Holders may be
embodied in and evidenced by one or more instruments of substantially similar
tenor signed by such Holders in person or by an agent duly appointed in
writing, and, except as otherwise expressly provided herein, such action shall
become effective when such instrument or instruments are delivered to the
Indenture Trustee and, if expressly required herein, to the Owner Trustee.
Proof of execution of any instrument or of a writing appointing any such agent
shall be sufficient for any purpose of this Indenture and (subject to Sections
9.02 and 9.03 hereof) conclusive in favor of the Indenture Trustee and the
Owner Trustee, if made in the manner provided in this Article.
(b) For the purpose of determining the Holders entitled to vote or
consent to any direction, waiver or other action of such Holders under Section
7.10 or 7.11 hereof, the Lessee may set a record date for such vote or consent
by specifying such record date in an Officer's Certificate delivered to the
Indenture Trustee. Such record date shall be a date not more than 15 days
prior to the first solicitation of such vote or consent.
Section 10.02. Proof of Execution of Instruments and of Holding of
Certificates. Subject to Sections 9.02 and 9.03 hereof, the execution of any
instrument by a Holder or his agent or proxy may be proved in accordance with
such reasonable rules and regulations as may be prescribed by the Indenture
Trustee. The holding of Certificates shall be proved by the Register or by a
certificate of the Registrar.
Section 10.03. Holders to Be Treated as Owners. Prior to due
presentment for registration of transfer of any Certificate, the Owner
Trustee, the Indenture Trustee, any agent of the Owner Trustee or the
Indenture Trustee, the Paying Agent, if any, the Registrar and the Lessee
shall deem and treat the Person in whose name such Certificate shall be
registered upon the Register as the absolute owner of such Certificate
(whether or not such Certificate shall be overdue and notwithstanding any
notation of ownership or other writing thereon) for the purpose of receiving
payment of or on account of the principal of and, subject to the provisions of
this Indenture, interest on such Certificate and for all other purposes; and
neither the Owner Trustee nor the Indenture Trustee (nor any agent of the
Owner Trustee or the Indenture Trustee) nor the Paying Agent, if any, nor the
Registrar nor the Lessee shall be affected by any notice to the contrary. All
such payments so made to any such person, or upon his order, shall be valid,
and, to the extent of the sum or sums so paid, effectual to satisfy and
discharge the liability for moneys payable upon any such Certificate.
Section 10.04. Certificates Owned by Owner Trustee and the Lessee
Deemed Not Outstanding. In determining whether the Holders of the requisite
aggregate principal amount of Certificates have concurred in any direction,
consent or waiver under this Indenture, Certificates which are owned by the
Owner Trustee, the Owner Participant, SSB, the Lessee or by any Affiliate
thereof shall be disregarded and deemed not to be Outstanding for the purpose
of any such determination; provided that for the purpose of determining
whether the Indenture Trustee shall be protected in relying on any such
direction, consent or waiver, only if a Responsible Officer of the Indenture
Trustee has actual knowledge that certain Certificates are so owned by any
person directly or indirectly controlling or controlled by or under direct or
indirect common control with the Owner Trustee, the Owner Participant, SSB or
the Lessee shall such Certificates be so disregarded; and provided further
that if all Certificates which would be deemed Outstanding in the absence of
the foregoing provision are owned by the Owner Trustee, SSB or the Owner
Participant or by any Affiliate thereof, then such Certificates shall be
deemed Outstanding for the purpose of any such determination. Certificates
so owned which have been pledged in good faith may be regarded as Outstanding
if the pledgee establishes to the satisfaction of the Indenture Trustee the
pledgee's right so to act with respect to such Certificates and that the
pledgee is not the Owner Trustee, the Owner Participant, SSB or the Lessee or
any Person directly or indirectly controlling or controlled by or under direct
or indirect common control with the Owner Trustee, the Owner Participant, SSB
or the Lessee. In case of a dispute as to such right, the advice of counsel
shall be full protection in respect of any decision made by the Indenture
Trustee in accordance with such advice, unless the Lessee, the Owner Trustee,
SSB, or the Owner Participant are actually named in the Register. Upon
request of the Indenture Trustee, the Owner Trustee, the Owner Participant,
SSB and the Lessee shall furnish to the Indenture Trustee promptly an
Officer's Certificate listing and identifying all Certificates, if any, known
by the Owner Trustee, the Owner Participant, SSB or the Lessee to be owned or
held by or for the account of any of the above-described persons; and, subject
to Sections 9.02 and 9.03 hereof, the Indenture Trustee shall be entitled to
accept such Officer's Certificate as conclusive evidence of the facts set
forth therein and of the fact that all Certificates not listed therein are
outstanding for the purpose of any such determination.
Section 10.05. Right of Revocation of Action Taken. At any time
prior to (but not after) the evidencing to the Indenture Trustee, as provided
in Section 10.01, of the taking of any action by the Holders of the percentage
in aggregate principal amount of the Certificates specified in this Indenture
in connection with such action, any Holder of a Certificate, the serial number
of which is shown by the evidence to be included among the serial numbers of
the Certificates the Holders of which have consented to such action, may, by
filing written notice at the Corporate Trust Department and upon proof of
holding as provided in this Article, revoke such action so far as concerns
such Certificate. Except as aforesaid, any such action taken by the Holder
shall be conclusive and binding upon such Holder and upon all future Holders
and owners of such Certificate and of any Certificates issued in exchange or
substitution therefor, irrespective of whether or not any notation in regard
thereto is made upon any such Certificate or otherwise. Any action taken by
the Holders of the percentage in aggregate principal amount of the
Certificates specified in this Indenture in connection with such action shall
be conclusively binding upon the Owner Trustee, the Indenture Trustee and the
Holders of all the Certificates.
Section 10.06. ERISA. Any Person, other than the Subordination
Agent, who is acquiring the Certificates will be deemed to represent and
warrant that (i) no assets of an employee benefit plan subject to Title I of
ERISA or an individual retirement account or plan subject to Section 4975 of
the Code, or any trust established under any such plan or account, have been
used to acquire or hold any of the Certificates, or (ii) that one or more
administrative or statutory exemptions from the prohibited transaction rules
under Section 406 of ERISA and Section 4975 of the Code applies to its
purchase and holding of the Certificates such that its purchase and holding of
the Certificates will not result in a non-exempt prohibited transaction under
Section 406 of ERISA and Section 4975 of the Code.
ARTICLE XI
INDEMNIFICATION OF INDENTURE
TRUSTEE BY OWNER TRUSTEE
The Owner Trustee, not individually but solely in its capacity as
Owner Trustee under the Trust Agreement, hereby agrees, whether or not any of
the transactions contemplated hereby shall be consummated, to assume liability
for, and does hereby indemnify, protect, save and keep harmless the Indenture
Trustee, in its individual capacity, and its successors, assigns, agents and
servants solely from the Lessor's Estate, with respect to the claims of the
Indenture Trustee for payment or reimbursement under Section 9.11 hereof and
from and against any and all liabilities, obligations, losses, damages,
penalties, taxes (excluding any taxes payable by the Indenture Trustee on or
measured by any compensation received by the Indenture Trustee for its
services under this Indenture and any taxes excluded from the Lessee's
indemnity obligation under Section 8.01(b) of the Participation Agreement),
claims, actions, suits, costs, expenses or disbursements (including legal fees
and expenses) of any kind and nature whatsoever which may be imposed on,
incurred by or asserted against the Indenture Trustee (whether or not also
agreed to be indemnified against by any other person under any other document)
in any way relating to or arising out of this Indenture, or any other
Indenture Documents or the enforcement of any of the terms of any thereof, or
in any way relating to or arising out of the manufacture, purchase,
acceptance, nonacceptance, rejection, ownership, delivery, lease, possession,
use, operation, condition, sale, return or other disposition of the Aircraft or
any Engine (including, without limitation, latent and other defects, whether
or not discoverable, and any claim for patent, trademark or copyright
infringement), or in any way relating to or arising out of the administration
of the Trust Indenture Estate or the action or inaction of the Indenture
Trustee hereunder, except only (a) in the case of willful misconduct or gross
negligence of the Indenture Trustee in the performance of its duties
hereunder, (b) as may result from the inaccuracy of any representation or
warranty of the Indenture Trustee in the Participation Agreement, (c) as
otherwise provided in Section 9.02(c) hereof or (d) as otherwise excluded by
the terms of Article 8 or Article 9 of the Participation Agreement from the
Lessee's general indemnity or general tax indemnity to the Indenture Trustee
under said Article; provided that so long as the Lease is in effect, the
Indenture Trustee shall not make any claim under this Article XI for any claim
or expense indemnified by the Lessee under the Participation Agreement without
first making demand on the Lessee for payment of such claim or expense. The
Indenture Trustee shall be entitled to indemnification, from the Trust
Indenture Estate, for any liability, obligation, loss, damage, penalty, claim,
action, suit, cost, expense or disbursement indemnified against pursuant to
this Article XI to the extent not reimbursed by the Lessee or others, but
without releasing any of them from their respective agreements of
reimbursement; and to secure the same the Indenture Trustee shall have a prior
Lien on the Trust Indenture Estate. The indemnities contained in this Article
XI shall survive the termination of this Indenture and the resignation or
removal of the Indenture Trustee. Upon payment in full by the Owner Trustee
of any indemnity pursuant to this Article XI, the Owner Trustee shall, so long
as no Indenture Event of Default shall have occurred and be continuing, be
subrogated to the rights of the Indenture Trustee, if any, in respect of the
matter as to which the indemnity was paid.
ARTICLE XII
SUCCESSOR TRUSTEES
Section 12.01. Notice of Successor Owner Trustee. In the case of any
appointment of a successor to the Owner Trustee pursuant to the Trust
Agreement or any merger, conversion, consolidation or sale of substantially
all of the corporate trust business of the Owner Trustee pursuant to the Trust
Agreement, the successor Owner Trustee shall give prompt written notice
thereof to the Indenture Trustee.
Section 12.02. Resignation and Removal of Indenture Trustee;
Appointment of Successor. (a) The Indenture Trustee or any successor thereto
may resign at any time without cause by giving at least 30 days' prior written
notice to the Owner Trustee, the Owner Participant, the Lessee and each
Holder, such resignation to be effective upon the acceptance of the
trusteeship by a successor Indenture Trustee. In addition, the Majority in
Interest of the Certificate Holders or the Owner Trustee, with the consent of
the Lessee and the Majority in Interest of the Certificate Holders may at any
time remove the Indenture Trustee without cause by an instrument in writing
delivered to the Lessee, the Owner Trustee, the Owner Participant, and the
Indenture Trustee, and the Indenture Trustee shall promptly notify each Holder
thereof of such action in writing, such removal to be effective upon the
acceptance of the trusteeship by a successor Indenture Trustee. In the case
of the resignation or removal of the Indenture Trustee, the Majority in
Interest of the Certificate Holders, or the Owner Trustee, with the consent of
the Lessee and the Majority in Interest of the Certificate Holders, may
appoint a successor Indenture Trustee by an instrument signed by such Holders.
If a successor Indenture Trustee shall not have been appointed within 30 days
after such notice of resignation or removal, the Indenture Trustee, the Owner
Trustee, the Lessee, the Owner Participant, or any Holder may apply to any
court of competent jurisdiction to appoint a successor Indenture Trustee to
act until such time, if any, as a successor shall have been appointed as
provided above. The successor Indenture Trustee so appointed by such court
shall immediately and without further act be superseded by any successor
Indenture Trustee appointed as provided above.
(b) In case at any time any of the following shall occur:
(i) the Indenture Trustee shall cease to be eligible in accordance
with the provisions of Section 12.03 hereof and shall fail to resign after
written request therefor by the Owner Trustee or by any Holder; or
(ii) the Indenture Trustee shall become incapable of acting, or shall
be adjudged a bankrupt or insolvent, or a receiver or liquidator of the
Indenture Trustee or of its property shall be appointed, or any public
officer shall take charge or control of the Indenture Trustee or of its
property or affairs for the purpose of rehabilitation, conservation or
liquidation;
then the Owner Trustee may remove the Indenture Trustee and, with the consent
of the Lessee, appoint a successor trustee by written instrument, in
duplicate, executed by a Responsible Officer of the Owner Trustee, one copy of
which instrument shall be delivered to the Indenture Trustee so removed and
one copy to the successor trustee, or, subject to the provisions of Section
7.13 hereof, any Holder who has been a bona fide Holder 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 Indenture Trustee
and the appointment of a successor trustee. Such court may thereupon, after
such notice, if any, as it may deem proper and prescribe, remove the Indenture
Trustee and appoint a successor trustee, which removal and appointment shall
become effective upon acceptance of appointment by the successor trustee as
provided in Section 12.04 hereof. The successor Indenture Trustee so
appointed by such court shall immediately and without further act be
superseded by any successor Indenture Trustee appointed as provided above
within one year from the date of appointment by such court.
Section 12.03. Persons Eligible for Appointment as Indenture
Trustee. There shall at all times be an Indenture Trustee hereunder which
shall be (i)(x) a bank or trust company organized and doing business under the
laws of the United States of America or any state or the District of Columbia
having a combined capital and surplus of at least $100,000,000 or (y) a bank
or trust company whose obligations hereunder are fully guaranteed by a direct
or indirect parent thereof having a combined capital and surplus of at least
$100,000,000 and (ii) a Citizen of the United States authorized under
applicable law to exercise corporate trust powers and subject to supervision of
examination by Federal, state or District of Columbia authority. If such
corporation publishes reports of condition at least annually, pursuant to law
or to the requirements of the aforesaid supervising or examining authority,
then for the purposes of this Section, 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 condition so published. In case at any
time the Indenture Trustee shall cease to be eligible in accordance with the
provisions of this Section, the Indenture Trustee shall resign immediately in
the manner and with the effect specified in Section 12.02 hereof.
Section 12.04. Acceptance of Appointment by Successor Trustee. Any
successor trustee appointed as provided in Section 12.02 hereof shall execute
and deliver to the Owner Trustee, the Lessee, and to its predecessor trustee
an instrument accepting such appointment hereunder, in form and substance
reasonably satisfactory to the Owner Trustee, and thereupon the resignation or
removal of the predecessor trustee shall become effective and such successor
trustee, without any further act, deed or conveyance, shall become vested with
all rights, powers, duties and obligations of its predecessor hereunder, with
like effect as if originally named as trustee herein; but, nevertheless, on
the written request of the Owner Trustee or of the successor trustee, upon
payment of its charges then unpaid, the trustee ceasing to act shall, subject
to Section 14.04 hereof, pay over to the successor trustee all moneys at the
time held by it hereunder and shall execute and deliver an instrument
transferring to such successor trustee all such rights, powers, duties and
obligations. Upon request of any such successor trustee, the Owner Trustee
shall execute any and all instruments in writing for more fully and certainly
vesting in and confirming to such successor trustee all such rights and
powers. Any trustee ceasing to act shall, nevertheless, retain a prior claim
upon all property or funds held or collected by such trustee to secure any
amounts then due it pursuant to the provisions of Article XI hereof.
No successor trustee shall accept appointment as provided in this
Section 12.04 unless at the time of such acceptance such successor trustee
shall be eligible under the provisions of Section 12.03 hereof.
Upon acceptance of appointment by a successor trustee as provided in
this Section 12.04, the successor trustee shall mail notice thereof by
first-class mail to the Holders at their last addresses as they shall appear
in the Register, and shall mail a copy of such notice to the Lessee and the
Owner Trustee. If the acceptance of appointment is substantially
contemporaneous with the resignation, then the notice called for by the
preceding sentence may be combined with the notice called for by Section 12.02
hereof.
Section 12.05. Merger, Conversion, Consolidation or Succession to
Business of Indenture Trustee. Any corporation into which the Indenture
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 Indenture Trustee shall be a party, or any corporation succeeding to
the corporate trust business of the Indenture Trustee, shall be the successor
to the Indenture Trustee hereunder, provided that, anything herein to the
contrary notwithstanding, such corporation shall be eligible under the
provisions of Section 12.03 hereof, without the execution or filing of any
paper or any further act on the part of any of the parties hereto.
In case at the time such successor to the Indenture Trustee shall
succeed to the trusts created by this Indenture any of the Certificates shall
have been authenticated but not delivered, any such successor to the Indenture
Trustee may adopt the certificate of authentication of any predecessor
Indenture Trustee and deliver such Certificates so authenticated; and, in case
at that time any of the Certificates shall not have been authenticated, any
successor to the Indenture Trustee may authenticate such Certificates either
in the name of any predecessor hereunder or in the name of the successor
Indenture Trustee; and in all such cases such certificate shall have the full
force which it is anywhere in the Certificates or in this Indenture provided
that the certificate of the Indenture Trustee shall have; provided, that the
right to adopt the certificate of authentication of any predecessor Indenture
Trustee or to authenticate Certificates in the name of any predecessor
Indenture Trustee shall apply only to its successor or successors by merger,
conversion or consolidation.
Section 12.06. Appointment of Separate Trustees. (a) At any time or
times, for the purpose of meeting any legal requirements of any jurisdiction
in which any part of the Trust Indenture Estate may at the time be located or
in which any action of the Indenture Trustee may be required to be performed
or taken, the Indenture Trustee, by an instrument in writing signed by it, may
appoint one or more individuals or corporations to act as a separate trustee
or separate trustees or co-trustee, acting jointly with the Indenture Trustee,
of all or any part of the Trust Indenture Estate, to the full extent that
local law makes it necessary for such separate trustee or separate trustees or
co-trustee acting jointly with the Indenture Trustee to act.
(b) The Indenture Trustee and, at the request of the Indenture
Trustee, the Owner Trustee, shall execute, acknowledge and deliver all such
instruments as may be required by the legal requirements of any jurisdiction
or by any such separate trustee or separate trustees or co-trustee for the
purpose of more fully confirming such title, rights or duties to such separate
trustee or separate trustees or co-trustee. Upon the acceptance in writing of
such appointment by any such separate trustee or separate trustees or
co-trustee, it, he or they shall be vested with such title to the Trust
Indenture Estate or any part thereof, and with such rights, powers, duties and
obligations, as shall be specified in the instrument of appointment, and such
rights, powers, duties and obligations shall be conferred or imposed upon and
exercised or performed by the Indenture Trustee, or the Indenture Trustee and
such separate trustee or separate trustees or co-trustee jointly with the
Indenture Trustee subject to all the terms of this Indenture, except to the
extent that under any law of any jurisdiction in which any particular act or
acts are to be performed the Indenture Trustee shall be incompetent or
unqualified to perform such act or acts, in which event such rights, powers,
duties and obligations shall be exercised and performed by such separate
trustee or separate trustees or co-trustee, as the case may be. Any separate
trustee or separate trustees or co-trustee may, at any time by an instrument
in writing, constitute the Indenture Trustee its or his attorney-in-fact and
agent with full power and authority to do all acts and things and to exercise
all discretion on its or his behalf and in its or his name. In case any such
separate trustee or co-trustee shall die, become incapable of acting, resign
or be removed, the title to the Trust Indenture Estate and all assets,
property, rights, powers, duties and obligations and duties of such separate
trustee or co-trustee shall, so far as permitted by law, vest in and be
exercised by the Indenture Trustee, without the appointment of a successor to
such separate trustee or co-trustee unless and until a successor is appointed.
(c) All provisions of this Indenture which are for the benefit of
the Indenture Trustee (including without limitation Article XI hereof) shall
extend to and apply to each separate trustee or co-trustee appointed pursuant
to the foregoing provisions of this Section 12.06.
(d) Every additional trustee and separate trustee hereunder shall,
to the extent permitted by law, be appointed and act and the Indenture Trustee
shall act, subject to the following provisions and conditions:
(i) all powers, duties, obligations and rights conferred upon the
Indenture Trustee in respect of the receipt, custody, investment and
payment of moneys shall be exercised solely by the Indenture Trustee;
(ii) all other rights, powers, duties and obligations conferred or
imposed upon the Indenture Trustee shall be conferred or imposed and
exercised or performed by the Indenture Trustee and such additional trustee
or trustees and separate trustee or trustees jointly except to the extent
that under any law of any jurisdiction in which any particular act or acts
are to be performed, the Indenture Trustee shall be incompetent or
unqualified to perform such act or acts, in which event such rights,
powers, duties and obligations (including the holding of title to the Trust
Indenture Estate in any such jurisdiction) shall be exercised and performed
by such additional trustee or trustees or separate trustee or trustees;
(iii) no power hereby given to, or exercisable by, any such additional
trustee or separate trustee shall be exercised hereunder by such additional
trustee or separate trustee except jointly with, or with the consent of,
the Indenture Trustee; and
(iv) no trustee hereunder shall be liable either personally or in its
capacity as such trustee, by reason of any act or omission of any other
trustee hereunder.
If at any time the Indenture Trustee shall deem it no longer necessary or
prudent in order to conform to any such law, the Indenture Trustee shall
execute and deliver an indenture supplemental hereto and all other instruments
and agreements necessary or proper to remove any additional trustee or
separate trustee.
(e) Any request, approval or consent in writing by the Indenture
Trustee to any additional trustee or separate trustee shall be sufficient
warrant to such additional trustee or separate trustee, as the case may be, to
take such action as may be so requested, approved or consented to.
(f) Notwithstanding any other provision of this Section 12.06, the
powers of any additional trustee or separate trustee shall not exceed those of
the Indenture Trustee hereunder.
ARTICLE XIII
SUPPLEMENTS AND AMENDMENTS TO THIS
TRUST INDENTURE AND OTHER DOCUMENTS
Section 13.01. Supplemental Indentures Without Consent of Holders.
The Owner Trustee (when authorized by the Owner Participant) and the Indenture
Trustee, without consent of the Holders, may enter into an indenture or
indentures supplemental hereto for one or more of the following purposes:
(a) to convey, transfer, assign, mortgage or pledge any property or
assets to the Indenture Trustee as security for the Certificates;
(b) to evidence the succession of another corporation to the Owner
Trustee or successive successions, and the assumption by the successor
corporation of the covenants, agreements and obligations of the Owner
Trustee herein and in the Certificates;
(c) to add to the covenants of the Owner Trustee such further
covenants, restrictions, conditions or provisions as it and the Indenture
Trustee shall consider to be for the protection of the Holders, and to make
the occurrence, or the occurrence and continuance, of a default in any such
additional covenants, restrictions, conditions or provisions an Indenture
Event of Default permitting the enforcement of all or any of the several
remedies provided herein; provided, that in respect of any such additional
covenant, restriction, condition or provision such supplemental indenture
may provide for a particular period of grace after default (which period
may be shorter or longer than that allowed in the case of other defaults)
or may provide for an immediate enforcement upon such an Indenture Event of
Default or may limit the remedies available to the Indenture Trustee upon
such an Indenture Event of Default or may limit the right of not less than
the Majority in Interest of Certificate Holders to waive such an Indenture
Event of Default;
(d) to surrender any right or power conferred herein upon the Owner
Trustee or the Owner Participant;
(e) to cure any ambiguity or to correct or supplement any provision
contained herein or in any supplemental indenture which may be defective or
inconsistent with any other provision contained herein or in any
supplemental indenture; or to make such other provisions in regard to
matters or questions arising under this Indenture or under any supplemental
indenture as the Owner Trustee may deem necessary or desirable and which
shall not adversely affect the interests of the Holders;
(f) to correct or amplify the description of any property at any
time subject to the Lien of this Indenture or better to assure, convey and
confirm unto the Indenture Trustee any property subject or required to be
subject to the Lien of this Indenture or to subject Replacement Airframe or
Replacement Engines to the Lien of this Indenture in accordance with the
provisions hereof or with the Lease or to release from the Lien of this
Indenture property that has been substituted on or removed from the
Aircraft as contemplated in Section 3.07 hereof; provided that supplements
to this Indenture entered into for the purpose of subjecting Replacement
Airframe or Replacement Engines to the Lien of this Indenture need only be
executed by the Owner Trustee and the Indenture Trustee;
(g) to provide for the issuance under this Indenture of Certificates
in coupon form (including Certificates registrable as to principal only)
and to provide for exchangeability of such Certificates with Certificates
issued hereunder in fully registered form, and to make all appropriate
changes for such purpose;
(h) to effect the re-registration of the Aircraft pursuant to
Section 6.03(b) of the Participation Agreement; and
(i) to add, eliminate or change any provision hereunder so long as
such action shall not adversely affect the interests of the Holders.
The Indenture Trustee is hereby authorized to join in the execution
of any such supplemental indenture, to make any further appropriate agreements
and stipulations which may be contained therein and to accept the conveyance,
transfer, assignment, mortgage or pledge of any property thereunder, but the
Indenture Trustee shall not be obligated to enter into any such supplemental
indenture which adversely affects the Indenture Trustee's own rights, duties
or immunities under this Indenture or otherwise.
Any such supplemental indenture may be executed without the consent of
the Holders of Outstanding Certificates, notwithstanding any of the provisions
of Section 13.02 hereof.
Section 13.02. Supplemental Indentures With Consent of Holders.
With the consent (evidenced as provided in Article X) of the Majority in
Interest of Certificate Holders, the Owner Trustee (when authorized by the
Owner Participant) and the Indenture Trustee may, from time to time and at any
time, enter into an indenture or indentures supplemental hereto for the
purpose of adding any provisions to or changing in any manner or eliminating
any of the provisions of this Indenture or of any supplemental indenture or of
modifying in any manner the rights of the Holders; provided, however, that,
without the consent of each and every Holder and each Liquidity Provider, no
such amendment of or supplement to this Indenture or any indenture
supplemental hereto, or modification of the terms of, or consent under, any
thereof, shall (a) modify any of the provisions of Section 7.11 hereof or this
Section 13.02, (b) reduce the amount or extend the time of payment of any
amount owing or payable under any Certificate or reduce the interest payable
on any Certificate (except that only the consent of the Holder shall be
required for any decrease in any amounts of or the rate of interest payable on
such Certificate or any extension for the time of payment of any amount
payable under such Certificate), or alter or modify the provisions of Article
V hereof with respect to the order of priorities in which distributions
thereunder shall be made as among Holders of different Series of Certificates
or as between the Holder and the Owner Trustee or the Owner Participant or
with respect to the amount or time of payment of any such distribution, or
alter or modify the circumstances under which a Make-Whole Premium shall be
payable, or alter the currency in which any amount payable under any
Certificate is to be paid, or impair the right of any Holder to commence legal
proceedings to enforce a right to receive payment hereunder, (c) reduce,
modify or amend any indemnities in favor of any Holder or in favor of or to be
paid by the Owner Participant (except as consented to by each Person adversely
affected thereby), or (d) create or permit the creation of any Lien on the
Trust Indenture Estate or any part thereof prior to or pari passu with the
Lien of this Indenture, except as expressly permitted herein, or deprive any
Holder of the benefit of the Lien of this Indenture on the Trust Indenture
Estate, except as provided in Section 7.02 hereof or in connection with the
exercise of remedies under Article VII. This Section 13.02 shall not apply to
any indenture or indentures supplemental hereto permitted by, and complying
with the terms of, Section 13.06 hereof.
Upon the request of the Owner Trustee (at the direction of the Owner
Participant) and upon the filing with the Indenture Trustee of evidence of the
consent of Holders and other documents, if any, required by Section 10.01, the
Indenture Trustee shall join with the Owner Trustee and the Lessee in the
execution of such supplemental indenture unless such supplemental indenture
affects the Indenture Trustee's own rights, duties or immunities under this
Indenture or otherwise, in which case the Indenture Trustee may in its
discretion, but shall not be obligated to, enter into such supplemental
indenture.
It shall not be necessary for the consent of the Holders under this
Section to approve the particular form of any proposed supplemental indenture,
but it shall be sufficient if such consent shall approve the substance
thereof.
Promptly after the execution by the Owner Trustee, the Indenture
Trustee and the Lessee of any supplemental indenture pursuant to the
provisions of this Section, the Indenture Trustee shall mail a notice thereof
by first-class mail to the Holders at their addresses as they shall appear on
the registry books of the Registrar, setting forth in general terms the
substance of such supplemental indenture. Any failure of the Indenture
Trustee to mail such notice, or any defect therein, shall not, however, in any
way impair or affect the validity of any such supplemental indenture.
Section 13.03. Effect of Supplemental Indenture. Upon the execution
of any supplemental indenture pursuant to the provisions hereof, this
Indenture shall be and be deemed to be modified and amended in accordance
therewith and the respective rights, limitations of rights, obligations,
duties and immunities under this Indenture of the Indenture Trustee, the Owner
Trustee, the Lessee and the Holders shall thereafter be determined, exercised
and enforced hereunder subject in all respects to such modifications and
amendments, and all the terms and conditions of any such supplemental
indenture shall be and be deemed to be part of the terms and conditions of
this Indenture for any and all purposes.
Section 13.04. Documents to Be Given to Indenture Trustee. The
Indenture Trustee, subject to the provisions of Sections 9.02 and 9.03, may
receive an Officer's Certificate and an Opinion of Counsel as conclusive
evidence that any such supplemental indenture complies with the applicable
provisions of this Indenture.
Section 13.05. Notation on Certificates in Respect of Supplemental
Indentures. Certificates authenticated and delivered after the execution of
any supplemental indenture pursuant to the provisions of this Article may bear
a notation in form approved by the Indenture Trustee as to any matter provided
for by such supplemental indenture. If the Owner Trustee or the Indenture
Trustee shall so determine, new Certificates so modified as to conform, in the
opinion of the Owner Trustee and the Indenture Trustee, to any modification of
this Indenture contained in any such supplemental indenture may be prepared by
the Owner Trustee, authenticated by the Indenture Trustee and delivered in
exchange for the Outstanding Certificates.
Section 13.06. No Request Necessary for Lease Supplement or Indenture
and Security Agreement Supplement. Notwithstanding anything contained in
Section 13.02 hereof, no written request or consent of the Indenture Trustee,
any Holder or the Owner Participant pursuant to Section 13.02 hereof shall be
required to enable the Owner Trustee to enter into any supplement to the Lease
with the Lessee in accordance with the terms and conditions of the Lease to
subject a Replacement Airframe or Replacement Engine thereto or to execute and
deliver an Indenture and Security Agreement Supplement pursuant to the terms
hereof.
Section 13.07. Notices to Liquidity Providers. Any request made to
any Holder for consent to any amendment, supplement or waiver pursuant to
Section 7.11, 8.01 or this Article XIII shall be promptly furnished by the
Indenture Trustee to each Liquidity Provider.
ARTICLE XIV
SATISFACTION AND DISCHARGE OF INDENTURE;
UNCLAIMED MONEYS
Section 14.01. Satisfaction and Discharge of Indenture; Termination
of Indenture. If at any time after (a) the Owner Trustee shall have paid or
caused to be paid the principal of and interest on all the Certificates
outstanding hereunder, as and when the same shall have become due and payable,
or (b) the Owner Trustee shall have delivered to the Indenture Trustee for
cancellation all Certificates theretofore authenticated (other than any
Certificates which shall have been destroyed, lost or stolen and which shall
have been replaced or paid as provided in Section 2.07 hereof) or (c) (i) all
such Certificates not theretofore delivered to the Indenture Trustee for
cancellation shall have become due and payable, or are by their terms to
become due and payable within one year or are to be called for prepayment
within one year under arrangements satisfactory to the Indenture Trustee for
the giving of notice of prepayment by the Indenture Trustee in the name and at
the expense of the Owner Trustee, and (ii) the Owner Trustee shall have
irrevocably deposited or caused to be deposited with the Indenture Trustee as
trust funds the entire amount in cash (other than moneys repaid by the
Indenture Trustee or any paying agent to the Owner Trustee in accordance with
Section 14.04 hereof) or Government obligations maturing as to principal and
interest in such amounts and at such times as will insure the availability of
cash sufficient to pay at maturity all such Certificates not theretofore
delivered to the Indenture Trustee for cancellation, including principal and
interest due or to become due to such date of maturity as the case may be, and
if, in any such case, the Owner Trustee shall also pay or cause to be paid all
other sums then payable hereunder by the Owner Trustee, then this Indenture
shall cease to be of further effect (except in the case of (c) above as to (A)
rights of registration of transfer and exchange, and the Owner Trustee's right
of optional prepayment pursuant to Section 6.02(a)(ii) hereof, (B)
substitution of mutilated, defaced, destroyed, lost or stolen Certificates,
(C) rights of Holders to receive payments of principal thereof and interest
thereon, upon the original stated due dates therefor (but not upon
acceleration), (D) the rights, obligations, indemnities and immunities of the
Indenture Trustee hereunder and (E) the rights of the Holders as beneficiaries
hereof with respect to the property so deposited with the Indenture Trustee
payable to all or any of them), and the Indenture Trustee, on demand of the
Owner Trustee accompanied by an Officer's Certificate and an Opinion of
Counsel (covering such matters reasonably requested by, and in form and
substance reasonably satisfactory to, the Indenture Trustee) and at the cost
and expense of the Owner Trustee, shall execute proper instruments
acknowledging such satisfaction of and discharging this Indenture. The Owner
Trustee agrees to reimburse and indemnify the Indenture Trustee for any costs
or expenses thereafter reasonably and properly incurred and to compensate the
Indenture Trustee for any services thereafter reasonably and properly rendered
by the Indenture Trustee in connection with this Indenture or the
Certificates.
Upon (or at any time after) payment in full to the Indenture Trustee,
as trust funds, of the principal of and interest on and Make-Whole Premium, if
any, and all other amounts due hereunder and under all Certificates and
provided that there shall then be no other amounts due to the Indenture
Trustee hereunder or under the Participation Agreement or otherwise secured
hereby, the Owner Trustee shall direct the Indenture Trustee to execute and
deliver to or as directed in writing by the Owner Trustee an appropriate
instrument releasing the Aircraft from the Lien of this Indenture and
releasing the Indenture Documents from the assignment thereof hereunder, and
the Indenture Trustee shall execute and deliver such instrument as aforesaid
and, at the Owner Trustee's expense, will execute and deliver such other
instruments or documents as may be reasonably requested by the Owner Trustee
to give effect to such release; provided, however, that this Indenture and the
trusts created hereby shall terminate earlier and this Indenture shall be of
no further force or effect upon any sale or other final disposition by the
Indenture Trustee of all property forming a part of the Trust Indenture Estate
and the final distribution by the Indenture Trustee of all moneys or other
property or proceeds constituting part of the Trust Indenture Estate in
accordance with the terms hereof. Except as aforesaid otherwise provided, this
Indenture and the trusts created hereby shall continue in full force and
effect in accordance with the terms hereof.
Section 14.02. Application by Indenture Trustee of Funds Deposited
for Payment of Certificates. Subject to Section 14.04 hereof, all moneys
deposited with the Indenture Trustee pursuant to Section 14.01 hereof shall be
held in trust and applied by it to the prompt payment, either directly or
through any Paying Agent, to the Holders of the particular Certificates for
the payment or prepayment of which such moneys have been deposited with the
Indenture Trustee, of all sums due and to become due thereon for principal,
interest and Make-Whole Premium, if any, but such money need not be segregated
from other funds except to the extent required by law.
Section 14.03. Repayment of Moneys Held by Paying Agent. Upon the
satisfaction and discharge of this Indenture all moneys then held by any
Paying Agent under the provisions of this Indenture shall, upon demand of the
Owner Trustee, be repaid to it or paid to the Indenture Trustee and thereupon
such Paying Agent shall be released from all further liability with respect to
such moneys.
Section 14.04. Transfer of Moneys Held by Indenture Trustee and
Paying Agent Unclaimed for Two Years and Eleven Months. Any moneys deposited
with or paid to the Indenture Trustee or any Paying Agent for the payment of
the principal of or interest or Make-Whole Premium on any Certificate and not
applied but remaining unclaimed for two years and eleven months after the date
upon which such principal, interest or Make-Whole Premium shall have become
due and payable, shall, unless otherwise required by mandatory provisions of
applicable escheat or abandoned or unclaimed property law, be paid to the
Owner Trustee (or, if the Trust Agreement shall no longer be in effect, to the
Owner Participant) by the Indenture Trustee or such Paying Agent and the
Holder of such Certificate, as a general unsecured creditor, shall, unless
otherwise required by mandatory provisions of applicable escheat or abandoned
or unclaimed property laws, thereafter look only to the Owner Trustee (or the
Owner Participant) for any payment which such Holder may be entitled to
collect, and all liability of the Indenture Trustee, or any Paying Agent with
respect to such moneys shall thereupon cease.
ARTICLE XV
MISCELLANEOUS
Section 15.01. Capacity in Which Acting. Each of SSB (or its
permitted successors or assigns) and the Indenture Trustee acts hereunder not
in its individual capacity but solely as trustee except as expressly provided
herein and in the other Operative Documents, and, in the case of SSB (or its
permitted successors or assigns), in the Trust Agreement.
Section 15.02. No Legal Title to Trust Indenture Estate in Holders.
No Holder shall have legal title to any part of the Trust Indenture Estate.
No transfer, by operation of law or otherwise, of any Certificate or other
right, title and interest of any Holder in and to the Trust Indenture Estate
or hereunder shall operate to terminate this Indenture or entitle such Holder
or any successor or transferee of such Holder to an accounting or to the
transfer to it of legal title to any part of the Trust Indenture Estate.
Section 15.03. Sale of Trust Indenture Estate by Indenture Trustee is
Binding. Any sale or other conveyance of all or any part of the Trust
Indenture Estate by the Indenture Trustee made pursuant to the terms of this
Indenture or of the Lease shall bind the Lessee, the Owner Trustee, the
Holders and the Owner Participant and shall be effective to transfer or convey
all right, title and interest of the Indenture Trustee, the Owner Trustee, the
Owner Participant and such Holders therein and thereto. No purchaser or other
grantee shall be required to inquire as to the authorization, necessity,
expediency or regularity of such sale or conveyance or as to the application
of any sale or other proceeds with respect thereto by the Indenture Trustee.
Section 15.04. Indenture for Benefit of Owner Trustee, Indenture
Trustee, Owner Participant, Holders and Liquidity Providers. Nothing in this
Indenture, whether express or implied, shall be construed to give to any
person other than SSB, the Owner Trustee, the Lessee, the Indenture Trustee,
as trustee and in its individual capacity, the Owner Participant, each
Liquidity Provider and the Holders any legal or equitable right, remedy or
claim under or in respect of this Indenture. Upon termination of this
Indenture pursuant to Article XIV hereof, the Indenture Trustee in connection
with the satisfaction of the Indenture shall return to the Owner Trustee all
property (and related documents and instruments) constituting or evidencing
the Trust Indenture Estate.
Section 15.05. No Action Contrary to the Lessee's Rights Under the
Lease. Notwithstanding any of the provisions of this Indenture or the Trust
Agreement to the contrary, so long as no Event of Default shall have occurred
and be continuing, neither the Indenture Trustee nor the Owner Trustee will
take any affirmative acts that interfere with the peaceful and quiet
possession and enjoyment of the Aircraft by the Lessee.
Section 15.06. Notices. Unless otherwise expressly specified or
permitted by the terms hereof, all notices, requests, demands, authorizations,
directions, consents, waivers or documents provided or permitted by this
Indenture to be made, given, furnished or filed shall be in writing, mailed by
certified mail, postage prepaid, or by confirmed telecopy, and (a) if to the
Owner Trustee, addressed to it c/o State Street Bank and Trust Company, Two
International Place, 4th Floor, Boston, Massachusetts 02110 (telephone: (617)
664-5526, facsimile: (617) 664-5371), Attention: Corporate Trust Department
(with a copy to the Owner Participant at the address provided for notice
pursuant to Section 14.01 of the Participation Agreement), (b) if personally
delivered to the Indenture Trustee, addressed to it at its office at 79 South
Main Street, Salt Lake City, Utah 84111 (telephone: (801) 246-5630, facsimile:
(801) 246-5053), Attention: Corporate Trust Department or (c) if to the Owner
Participant, a Liquidity Provider or the Lessee, addressed to such party at
such address as such party shall have furnished by notice to the Owner Trustee
and the Indenture Trustee, or, until an address is so furnished, addressed to
the address of such party if any, set forth in Section 14.01 of the
Participation Agreement. Any party hereto may change the address to which
notices to such party will be sent by giving notice of such change to the
other parties to this Indenture.
Where this Indenture provides for notice to Holders, such notice
shall be sufficiently given (unless otherwise expressly provided herein) if in
writing and mailed, first-class postage prepaid, to each Holder entitled
thereto, at such Holder's last address as it appears in the Register. In any
case where notice to Holders is given by mail, neither the failure to mail
such notice, nor any defect in any notice so mailed, to any particular Holder
shall affect the sufficiency of such notice with respect to other Holders.
Where this Indenture provides for notice in any manner, such notice may be
waived in writing by the person entitled to receive such notice, either before
or after the event, and such waiver shall be the equivalent of such notice.
Waivers of notice by Holders shall be filed with the Indenture Trustee, but
such filing shall not be a condition precedent to the validity of any action
taken in reliance upon such waiver.
In case, by reason of the suspension of or irregularities in regular
mail service, it shall be impracticable to mail notice to the Owner Trustee
and Holders when such notice is required to be given pursuant to any provision
of this Indenture, then any manner of giving such notice as shall be
satisfactory to the Indenture Trustee shall be deemed to be a sufficient
giving of such notice.
Section 15.07. Officer's Certificates and Opinions of Counsel;
Statements to Be Contained Therein. Upon any application or demand by the
Lessee or the Owner Trustee to the Indenture Trustee to take any action under
any of the provisions of this Indenture, the Lessee or the Owner Trustee, as
the case may be, shall furnish to the Indenture Trustee upon request (a) an
Officer's Certificate stating that all conditions precedent provided for in
this Indenture relating to the proposed action have been complied with and
that the proposed action is in conformity with the requirements of this
Indenture, and (b) 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 demand as to which the furnishing
of such documents is specifically required by any provision of this Indenture
relating to such particular application or demand, no additional certificate
or opinion need be furnished.
Any certificate, statement or opinion of an officer of SSB may be
based, insofar as it relates to legal matters, upon a certificate or opinion
of or representations by counsel, unless such officer knows that the
certificate or opinion or representations with respect to the matters upon
which his certificate, statement or opinion may be based as aforesaid are
erroneous, or in the exercise of reasonable care should know that the same are
erroneous. Any certificate, statement or opinion of counsel may be based,
insofar as it relates to factual matters information with respect to which is
in the possession of the Lessee or SSB, upon the certificate, statement or
opinion of or representations by an officer or officers of the Lessee or SSB,
as the case may be, unless such counsel knows that the certificate, statement
or opinion or representations with respect to the matters upon which his
certificate, statement or opinion may be based as aforesaid are erroneous, or
in the exercise of reasonable care should know that the same are erroneous.
Any certificate, statement or opinion of an officer of the Lessee or
SSB or of counsel thereto may be based, insofar as it relates to accounting
matters, upon a certificate or opinion of or representations by an accountant
or firm of accountants employed by the Lessee or the Owner Trustee, as the
case may be, unless such officer or counsel, as the case may be, knows that
the certificate or opinion or representations with respect to the accounting
matters upon which his certificate, statement or opinion may be based as
aforesaid are erroneous, or in the exercise of reasonable care should know
that the same are erroneous.
Any certificate or opinion of any independent firm of public
accountants filed with the Indenture Trustee shall contain a statement that
such firm is independent.
Section 15.08. Severability. Any provision of this Indenture which
is prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and any
such prohibition or unenforceability in any jurisdiction shall not invalidate
or render unenforceable such provision in any other jurisdiction.
Section 15.09. No Oral Modifications or Continuing Waivers. No
terms or provisions of this Indenture or the Certificates may be changed,
waived, discharged or terminated orally, but only by an instrument in writing
signed by the party or other person against whom enforcement of the change,
waiver, discharge or termination is sought; and any waiver of the terms hereof
or of any Certificate shall be effective only in the specific instance and for
the specific purpose given.
Section 15.10. Successors and Assigns. All covenants and agreements
contained herein shall be binding upon, and inure to the benefit of, each of
the parties hereto and the successors and permitted assigns of each, all as
herein provided. Any request, notice, direction, consent, waiver or other
instrument or action by any Holder shall bind the successors and assigns of
such Holder. This Indenture and the Trust Indenture Estate shall not be
affected by any amendment or supplement to the Trust Agreement or by any other
action taken under or in respect of the Trust Agreement, except that each
reference in this Indenture to the Trust Agreement shall mean the Trust
Agreement as amended and supplemented from time to time to the extent
permitted hereby and thereby.
Section 15.11. Headings. The headings of the various Articles and
Sections herein and in the table of contents hereto are for the convenience of
reference only and shall not define or limit any of the terms or provisions
hereof.
Section 15.12. Normal Commercial Relations. Anything contained in
this Indenture to the contrary notwithstanding, the Owner Participant, the
Indenture Trustee and any Holder, or any bank or other affiliate of any such
party, may conduct any banking or other financial transactions, and have
banking or other commercial relationships, with the Lessee fully to the same
extent as if this Indenture were not in effect, including without limitation
the making of loans or other extensions of credit to the Lessee for any
purpose whatsoever, whether related to any of the transactions contemplated
hereby or otherwise.
Section 15.13. Governing Law; Counterparts. THIS INDENTURE AND
EACH CERTIFICATE SHALL IN ALL RESPECTS BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK, INCLUDING ALL MATTERS OF
CONSTRUCTION, VALIDITY AND PERFORMANCE. This Indenture may be executed by the
parties hereto in separate counterparts, each of which when so executed and
delivered shall be an original, but all such counterparts shall together
constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed this 28th day of May, 1997 by their respective officers
thereunto duly authorized and acknowledge that this Indenture has been made
and delivered in the City of New York, and this Indenture shall be effective
only upon such execution and delivery.
STATE STREET BANK AND TRUST COMPANY
OF CONNECTICUT, NATIONAL ASSOCIATION,
not in its individual capacity,
except as specifically set forth herein
but solely as Owner Trustee
By
------------------------------------
Name: Paul D. Allen
Title: Vice President
FIRST SECURITY BANK,
NATIONAL ASSOCIATION,
not in its individual capacity,
but solely as Indenture Trustee
By
------------------------------------
Name: Greg A. Hawley
Title: Vice President
Exhibit A
to
Trust Indenture and Security Agreement
Indenture and Security Agreement Supplement No. ___
Indenture and Security Agreement Supplement No. ___ (Federal Express
Corporation Trust No. N673FE) dated ________, ____, of STATE STREET BANK AND
TRUST COMPANY OF CONNECTICUT, NATIONAL ASSOCIATION, a national banking
association, not in its individual capacity but solely as owner trustee
(herein called the "Owner Trustee") under the Trust Agreement dated as of May
1, 1997 (the "Trust Agreement") between State Street Bank and Trust Company of
Connecticut, National Association and the Owner Participant named therein.
W I T N E S S E T H :
-------------------
WHEREAS, the Trust Agreement provides for the execution and delivery
of this Indenture and Security Agreement Supplement which shall particularly
describe the Aircraft and any Replacement Airframe or Replacement Engine
included in the property covered by the Trust Agreement.
WHEREAS, the Trust Indenture and Security Agreement (Federal Express
Corporation Trust No. N673FE) dated as of May 1, 1997 (the "Indenture") between
the Owner Trustee and First Security Bank, National Association (herein called
the "Indenture Trustee") provides for the execution and delivery of an
Indenture and Security Agreement Supplement substantially in the form of this
Indenture and Security Agreement Supplement No. __, which Supplement shall
particularly describe the Aircraft included in the Trust Indenture Estate, and
shall specifically mortgage such Aircraft to the Indenture Trustee.
(1)WHEREAS, the Indenture relates to the Aircraft and the Engines
described in the following paragraph and a counterpart of the Indenture is
attached to and made a part of this Indenture and Security Agreement
Supplement No. 1, and this Indenture and Security Agreement Supplement No. 1,
together with such attachment, is being filed for recordation on or promptly
after the date of this Supplement No. 1 with the Federal Aviation
Administration as one document.
- ------------
(1) This recital is to be included only in the first Indenture Supplement.
(2)Whereas, the Indenture and Indenture and Security Agreement
Supplement No. ___ dated _________________, ______ (the Indenture being
attached to and made a part of such Indenture and Security Agreement
Supplement and filed therewith) have been duly recorded pursuant to Subtitle
VII of Title 49 of the United States Code, on ____________, _____, as one
document and have been assigned Conveyance No. _________.
- ------------
(2) This recital is not to be included in the first Indenture Supplement.
NOW, THEREFORE, this Supplement witnesseth, that, to secure the prompt
payment of the principal of and Make-Whole Premium, if any, and interest on,
and all other amounts due with respect to, all Outstanding Certificates under
the Indenture and all other amounts due hereunder and the performance and
observance by the Owner Trustee of all the agreements, covenants and
provisions for the benefit of the Holders contained in the Indenture, in the
Lease, in the Participation Agreement and the Certificates, and the prompt
payment of any and all amounts from time to time owing under the Participation
Agreement by the Owner Trustee, the Owner Participant or the Lessee to the
Holders and for the uses and purposes and subject to the terms and provisions
of the Indenture and the Certificates, and in consideration of the premises
and of the covenants contained in the Indenture, and of the purchase of the
Certificates by the Holders, and of the sum of $1 paid to the Owner Trustee by
the Indenture Trustee at or before the delivery of the Indenture, the receipt
of which is hereby acknowledged, the Owner Trustee has granted, bargained,
sold, assigned, transferred, conveyed, mortgaged, pledged, granted a security
interest in, and confirmed, and does hereby grant, bargain, sell, assign,
transfer, convey, mortgage, pledge, grant a security interest in, and confirm,
unto the Indenture Trustee, its successors and assigns, in trust for the equal
and ratable security and benefit of the Holders, in the trust created by the
Indenture, and subject to all of the terms, conditions, provisions and
limitations set forth in the Indenture, a first priority security interest in
and mortgage lien on all estate, right, title and interest of the Owner Trustee
in, to and under the following described property:
Airframe
One (1) Airframe identified as follows:
FAA Manufacturer's
Registration Serial
Manufacturer Model Number Number
- ------------ ----- ------------ --------------
together with all appliances, equipment, instruments and accessories
(including, without limitation, radio and radar) from time to time belonging
thereto, owned by the Owner Trustee and installed in or appurtenant to said
aircraft.
AIRCRAFT ENGINES
Two (2) aircraft engines, each such engine having 750 or more rated takeoff
horsepower or the equivalent thereof, identified as follows:
Manufacturer's
Serial
Manufacturer Model Number
- ------------ ----- --------------
together with all equipment and accessories belonging thereto, by whomsoever
manufactured, owned by the Owner Trustee and installed in or appurtenant to
said aircraft engines.
Together with all substitutions, replacements and renewals of the
property described above, and all property which shall hereafter become
physically attached to or incorporated in the property described above,
whether the same are now owned by the Owner Trustee or shall hereafter be
acquired by it.
As further security for the obligations referred to above and secured
by the Indenture and hereby, the Owner Trustee has granted, bargained, sold,
assigned, transferred, conveyed, mortgaged, pledged and confirmed, and does
hereby grant, bargain, sell, assign, transfer, convey, mortgage, pledge and
confirm, unto the Indenture Trustee, its successors and assigns, for the
security and benefit of the Holders, in the trust created by the Indenture,
and subject to all of the terms, conditions, provisions and limitations set
forth in the Indenture, all of the estate, right, title and interest of the
Owner Trustee in, to and under the Lease Supplement (other than Excepted
Payments, if any) covering the property described above.
TO HAVE AND TO HOLD all and singular the aforesaid property unto the
Indenture Trustee, its successors and assigns, for the benefit and security of
the Holders for the uses and purposes and subject to the terms and provisions
set forth in the Indenture.
This Supplement shall be construed as supplemental to the Indenture
and shall form a part thereof, and the Indenture is hereby incorporated by
reference herein and is hereby ratified, approved and confirmed.
This Supplement is being delivered in the State of New York.
AND, FURTHER, the Owner Trustee hereby acknowledges that the
Aircraft/Engines referred to in this Supplement and the aforesaid Lease
Supplement has been delivered to the Owner Trustee and is included in the
property of the Owner Trustee and covered by all the terms and conditions of
the Trust Agreement, subject to the Lien of the Indenture.
IN WITNESS WHEREOF, the Owner Trustee has caused this Supplement to
be duly executed as of the date first written above by one of its officers
thereunto duly authorized.
STATE STREET BANK AND TRUST COMPANY
OF CONNECTICUT, NATIONAL ASSOCIATION,
not in its individual capacity,
except as specifically set forth herein
but solely as Owner Trustee
By
------------------------------------
Name: Paul D. Allen
Title: Vice President
Exhibit B
to
Trust Indenture and Security Agreement
[Form of Certificate]
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY
NOT BE SOLD OR OFFERED FOR SALE IN CONTRAVENTION OF SAID ACT
No. ______ $_____________
EQUIPMENT TRUST CERTIFICATE
(Federal Express Corporation Trust No. N673FE)
STATE STREET BANK AND TRUST COMPANY OF CONNECTICUT,
NATIONAL ASSOCIATION
not in its individual capacity but solely as
OWNER TRUSTEE UNDER TRUST AGREEMENT
(Federal Express Corporation Trust No. N673FE)
dated as of May 1, 1997
SERIES ___
Interest Rate Maturity
- ------------- --------
State Street Bank and Trust Company of Connecticut, National
Association, a national banking association, not in its individual capacity
but solely as Owner Trustee (herein in such capacity called the "Owner
Trustee") under that certain Trust Agreement (Federal Express Corporation
Trust No. N673FE) dated as of May 1, 1997, between the Owner Participant named
therein and State Street Bank and Trust Company of Connecticut, National
Association (herein as such Trust Agreement may be amended or supplemented
from time to time called the "Trust Agreement"), hereby promises to pay to
FIRST SECURITY BANK, NATIONAL ASSOCIATION, as Subordination Agent, or its
registered assigns, the principal sum of ________________ _______________
Dollars, payable as set forth below for the Maturity specified above, in such
coin or currency of the United States of America as at the time of payment
shall be legal tender for the payment of public and private debts, and to pay
interest on the principal outstanding from time to time, semiannually on each
January 15 and July 15, on said principal sum in like coin or currency at the
rate per annum set forth above from the January 15 or the July 15, as the case
may be, next preceding the date of this Certificate to which interest on the
Certificates has been paid or duly provided for, unless the date hereof is a
date to which interest on the Certificates has been paid or duly provided for,
in which case from the date of this Certificate. Notwithstanding the
foregoing, if the date hereof is after any January 15 or July 15 and before the
following January 15 or July 15, as the case may be, this Certificate shall
bear interest from such January 15 or July 15; provided that, if the Owner
Trustee shall default in the payment of interest due on such January 15 or
July 15, then this Certificate shall bear interest from the next preceding
January 15 or July 15 to which interest on this Certificate has been paid or
duly provided for. The interest so payable on any January 15 or July 15 will,
except as otherwise provided in the Indenture referred to below, be paid to
the person in whose name this Certificate is registered at the close of
business on the January 15 or July 15 preceding such January 15 or July 15,
whether or not such day is a Business Day.
This Certificate shall bear interest at the Past Due Rate on any
principal hereof and on any other amount payable hereunder or under the
Indenture which shall not be paid in full when due (whether at stated
maturity, by acceleration, by mandatory prepayment or otherwise), for the
period from and including the date thereof to but excluding the date the same
is paid in full, payable from time to time on demand of the Indenture Trustee.
Principal and interest and other amounts due hereunder shall be
payable at the office or agency of First Security Bank, National Association
(the "Indenture Trustee") maintained for such purpose in immediately available
funds prior to 10:30 A.M. (New York time) on the due date thereof and the
Indenture Trustee shall remit all such amounts received by it to the Holders
at such account or accounts at such financial institution or institutions as
the Holders shall have designated to the Indenture Trustee in writing, in
immediately available funds, such payment to be made if the payment was
received prior to 10:30 A.M. New York time by the Indenture Trustee on any
Business Day, by 12:00 noon New York time on such Business Day; otherwise, the
Indenture Trustee shall make payment promptly, but not later than 11:00 A.M.
New York time on the next succeeding Business Day; provided that, at the
option of the Indenture Trustee or its Paying Agent, interest may be paid by
mailing a check therefor payable to or upon the written order of the
registered holder entitled thereto at his last address as it appears on the
Register. If any amount payable under this Certificate, or under the
Indenture, falls due on a day that is not a Business Day, then such sum shall
be payable on the next succeeding Business Day, without (provided that payment
is made on such next succeeding Business Day) additional interest thereon for
the period of such extension.
State Street Bank and Trust Company of Connecticut, National
Association and First Security Bank, National Association are not acting
individually hereunder, but solely as Owner Trustee and Indenture Trustee,
respectively.
Any Person, other than the Subordination Agent, who is acquiring the
Certificates will be deemed to represent and warrant that (i) no assets of an
employee benefit plan subject to Title I of ERISA or an individual retirement
account or plan subject to Section 4975 of the Code, or any trust established
under any such plan or account, have been used to acquire or hold any of the
Certificates, or (ii) that one or more administrative or statutory exemptions
from the prohibited transaction rules under Section 406 of ERISA and Section
4975 of the Code applies to its purchase and holding of the Certificates such
that its purchase and holding of the Certificates will not result in a
non-exempt prohibited transaction under Section 406 of ERISA and Section 4975
of the Code.
This Certificate is one of a duly authorized issue of Certificates
issued and to be issued under the Trust Indenture and Security Agreement
(Federal Express Corporation Trust No. N673FE) dated as of May 1, 1997 (herein
as amended, supplemented or modified from time to time called the "Indenture")
between the Owner Trustee and the Indenture Trustee, designated as Equipment
Trust Certificates (Federal Express Corporation Trust No. N673FE) limited in
aggregate initial principal amount to $61,813,000 consisting of the following
aggregate principal amounts of Certificates with the interest rates per annum
and Maturities shown:
Initial
Aggregate
Principal
Series Maturity Amount Interest Rate
------ -------- ----------- -------------
A January 15, 2018 $33,382,000 7.50%
B January 15, 2018 $12,408,000 7.52%
C January 15, 2014 $16,023,000 7.65%
Reference is made to the Indenture and all supplements and amendments
thereto (a copy of which is on file with the Indenture Trustee at its
principal corporate trust office) for a more complete statement of the terms
and provisions thereof, including a statement of the properties conveyed,
pledged and assigned thereby, the nature and extent of the security, the
respective rights of the Owner Trustee, the Owner Participant, the Lessee, the
Indenture Trustee and the Holders, and the terms upon which the Certificates
are, and are to be, executed and delivered, to all of which terms and
conditions in the Indenture each Holder hereof agrees by its acceptance of
this Certificate.
Capitalized terms not otherwise defined herein shall have the
meanings given to them in the Indenture.
The principal amounts of the Certificates are payable as follows. The
Certificates are subject to redemption in part, pro rata (based on the face
amount thereof), in each case through mandatory sinking fund redemptions
providing for the redemption on the Sinking Fund Redemption Dates of the
aggregate principal amounts set forth below, together with interest accrued
thereon to the applicable Sinking Fund Redemption Date, but without Make-Whole
Premium.
Principal Amount
Series A Series B Series C
Certificates Certificates Certificates
Sinking Fund with a Maturity of with a Maturity of with a Maturity of
Redemption Date January 15, 2018 January 15, 2018 January 15, 2014
- ---------------- ------------------ ------------------ ------------------
July 15, 1997 0 0 0
January 15, 1998 237,020 139,870 0
July 15, 1998 429,968 0 0
January 15, 1999 469,348 250,371 0
July 15, 1999 198,307 0 0
January 15, 2000 456,622 250,371 333,147
July 15, 2000 211,033 0 0
January 15, 2001 515,875 250,371 333,827
July 15, 2001 151,779 0 0
January 15, 2002 667,654 250,371 346,056
July 15, 2002 0 0 0
January 15, 2003 667,654 250,371 606,354
July 15, 2003 0 0 0
January 15, 2004 667,654 250,371 708,573
July 15, 2004 0 0 0
January 15, 2005 667,654 250,371 833,112
July 15, 2005 0 0 0
January 15, 2006 667,654 250,371 802,110
July 15, 2006 0 0 0
January 15, 2007 403,118 250,371 3,718,121
July 15, 2007 264,537 0 0
January 15, 2008 667,654 250,371 648,079
July 15, 2008 0 0 0
January 15, 2009 667,654 250,371 1,454,348
July 15, 2009 0 0 0
January 15, 2010 667,654 683,379 1,321,136
July 15, 2010 0 0 0
January 15, 2011 667,654 2,868,958 0
July 15, 2011 0 0 0
January 15, 2012 667,654 3,243,783 0
July 15, 2012 0 0 0
January 15, 2013 4,216,042 669,984 0
July 15, 2013 0 0 0
January 15, 2014 352,513 0 4,918,137
July 15, 2014 0 0 0
January 15, 2015 5,685,189 0 0
July 15, 2015 0 0 0
January 15, 2016 6,128,191 0 0
July 15, 2016 0 0 0
January 15, 2017 6,605,712 0 0
July 15, 2017 0 0 0
January 15, 2018 380,206 2,047,945 0
Except as expressly provided in the Indenture, all payments of
principal, Make-Whole Premium, if any, and interest and other amounts to be
made to the Holder hereof by or at the behest of the Owner Trustee hereunder
or under the Indenture shall be made only from the income and proceeds from
the Lessor's Estate to the extent included in the Trust Indenture Estate and
only to the extent that the Owner Trustee shall have sufficient income or
proceeds from the Lessor's Estate to the extent included in the Trust
Indenture Estate to enable the Indenture Trustee to make such distributions in
accordance with the terms of the Indenture; provided that under the Lease, the
Lessee is obligated to pay or cause to be paid, to the extent such payments
are not required to be made from the assets subject to the Lien of this
Indenture or the income and proceeds received by the Indenture Trustee
therefrom, any net loss arising from the investment of funds held by the
Indenture Trustee which but for an Event of Default would be payable to
Lessee, and each Holder hereof, by its acceptance of this Certificate, agrees
that it will (except as aforesaid) look solely to the income and proceeds from
the Trust Indenture Estate to the extent available for distribution to the
Holder hereof as provided above and that neither the Owner Participant, the
Owner Trustee, State Street Bank and Trust Company of Connecticut, National
Association nor the Indenture Trustee is personally liable to the Holder
hereof for any amounts payable or any liability under this Certificate or
under the Indenture, except as expressly provided in the Indenture, in the
case of State Street Bank and Trust Company of Connecticut, National
Association, the Owner Trustee and the Indenture Trustee.
The Certificates are subject to prepayment in the following
circumstances at the price determined as set forth below.
(i) If an Event of Loss occurs with respect to the Airframe or with
respect to the Airframe and the Engines or engines then installed on the
Airframe (unless pursuant to Section 11.03 of the Lease and Section 9.08 of
the Indenture replacement equipment is substituted therefor).
(ii) If the Lessee, pursuant to Section 4.02(a) of the Lease, gives
notice of purchase of the Aircraft (and the Lessee shall not have revoked
such notice or effected an assumption of the Certificates as provided in
Section 2.12 of the Indenture).
(iii) If the Owner Participant or the Owner Trustee on behalf of the
Owner Participant gives notice of prepayment to the Indenture Trustee
pursuant to Section 8.02 of the Indenture.
(iv) If the Lessee, pursuant to Section 10.01 of the Lease, gives
notice of a voluntary termination for obsolescence or surplus, but subject
to Section 6.02(c) of Indenture.
(v) Pursuant to Section 15.01 of the Participation Agreement in
connection with a Refinancing of the Certificates.
(vi) As contemplated by Section 2.16 of the Indenture and Section
3.05(b) of the Participation Agreement if the Delivery Date has not
occurred on or prior to the Cut-Off Date.
(vii) At the option of the Owner Trustee with the prior written
consent of the Lessee and the Owner Participant upon not less than 25 days'
prior written notice.
In the case of a prepayment of the Certificates pursuant to clauses
(ii), (iv) and (v) above, the Lessee, in accordance with and subject to the
terms (including timing of notice) of Section 4.02(a) or 10.01 of the Lease or
Article 15 of the Participation Agreement, as the case may be, shall give
irrevocable (subject to Section 6.02(c) of the Indenture) written notice to
the Owner Trustee and the Indenture Trustee and to the Holders of all of the
Certificates specifying the Business Day on which the Owner Trustee is
directed to prepay the Certificates. In the case of a prepayment pursuant to
clause (i) above, the Certificates shall be prepaid on the Loss Payment Date
(as defined in Section 11.02 of the Lease). In the case of a prepayment
pursuant to clause (iii) above, the Certificates shall be prepaid on the date
designated in the notice of prepayment required by Section 8.02 of the
Indenture. In the case of a prepayment of the Certificates pursuant to
clauses (ii) and (iv) above, the Certificates shall be prepaid in full on the
Termination Date. In the case of a prepayment of the Certificates pursuant to
clause (v) above, the Certificates shall be prepaid on the effective date of
the Refinancing. In the case of a prepayment of the Certificates pursuant to
clause (vi) above, the Certificates shall be prepaid on the 15th day following
the Cut-Off Date. In the case of a prepayment of the Certificates pursuant to
clause (vii) above, the Certificates shall be prepaid on the date designated
in the notice referred to therein. The day on which the Certificates are to
be prepaid is herein referred to as the "Prepayment Date". On or prior to the
Prepayment Date, immediately available funds shall be deposited with the
Indenture Trustee in an amount in respect of the Certificates equal to:
(1) (i) if such prepayment is made under any provision of Section
6.02 of the Indenture on or after the applicable Premium Termination Date,
or (ii) if such prepayment is made prior to the applicable Premium
Termination Date pursuant to clause (i), (iii) (if clause (i) of the first
sentence of Section 8.02(a) of the Indenture is applicable) or (vi) above,
the sum of (A) the aggregate principal amount of such Certificates then
Outstanding, (B) accrued interest on the Certificates to the Prepayment
Date and (C) all other aggregate sums due the Indenture Trustee under the
Indenture or under the Participation Agreement or the Lease, but excluding
any Make-Whole Premium or other premium or penalty, or
(2) if such prepayment is made prior to the applicable Premium
Termination Date pursuant to clause (ii), (iii) (if clause (ii) of the
first sentence of Section 8.02(a) of the Indenture is applicable), (iv),
(v) or (vii) above, the sum of the amounts specified in clauses (A), (B)
and (C) of the preceding clause (1) plus any Make-Whole Premium payable in
respect of all Certificates with respect to which the Premium Termination
Date therefor has not occurred
(the aggregate amount required to be paid pursuant to this sentence being
herein referred to as the "Prepayment Price").
If, in accordance with and subject to the satisfaction of the
conditions set forth in Section 7.11 of the Participation Agreement, the
Lessee shall assume all of the obligations of the Owner Trustee hereunder,
under the Certificates and all other Operative Agreements, the Owner
Participant and the Owner Trustee shall (except for prior acts) be released
and discharged from any further obligations hereunder and under the
Certificates and all other Operative Agreements (except any obligations that
have accrued prior to such assumption).
If an Indenture Event of Default under the Indenture shall occur and
be continuing, the principal of the Certificates may be declared due and
payable in the manner and with the effect provided in the Indenture. The
Indenture provides that in certain events such declaration and its
consequences may be waived the Majority in Interest of Holders. Any such
consent or waiver shall be conclusive and binding upon the Holder of this
Certificate and upon all future Holders and owners of this Certificate and any
Certificate that may be issued in exchange or substitution therefor, whether or
not any notation thereof is made upon this Certificate or such other
Certificates. Moreover, if, and only if, an Event of Default shall occur, the
Indenture Trustee may declare the Lease to be in default, and may, to the
exclusion of the Owner Trustee, exercise one or more of the remedies of the
Owner Trustee provided in the Lease.
The Owner Trustee or the Owner Participant may cure a default by the
Lessee under the Lease arising from the failure of the Lessee to make any
Basic Rent payments under the Lease, but the Owner Trustee and the Owner
Participant, collectively, may not cure more than three consecutive such
failures or more than six such failures in total. The Owner Trustee or the
Owner Participant may cure any other default by the Lessee in the performance
of its obligations under the Lease.
(A) If an Event of Default shall have occurred and be continuing for
more than 180 days or the Certificates shall have been accelerated or (B) an
Event of Default shall have occurred and be continuing for not more than 180
days and the Certificates shall not have been accelerated, the Owner
Participant (or the Owner Trustee on behalf of the Owner Participant) may:
(1) direct the Owner Trustee to cause the prepayment of all the
Outstanding Certificates by notifying the Indenture Trustee of such
election and depositing the sum of amounts contemplated by paragraph
"first" under Section 5.03 of the Indenture and the aggregate
Prepayment Price of all such Certificates with the Indenture Trustee
for distribution to the Holders; or
(2) purchase all of the Outstanding Certificates by paying to the
Indenture Trustee an amount equal to the aggregate unpaid principal
amount of all Outstanding Certificates, plus accrued interest on such
amount to the date of purchase and if such purchase occurs prior to
the Premium Termination Date for such Outstanding Certificate (in the
case of a purchase pursuant to clause (ii) of the first sentence of
Section 8.02(a) of the Indenture but not in the case of clause (i) of
Section 8.02(a) of the Indenture) any Make-Whole Premium applicable
to each Outstanding Certificate, plus all other sums due any Holder
or the Indenture Trustee under the Indenture, the Participation
Agreement or the Lease.
The right of the Holder hereof to institute an action for any remedy
under the Indenture is subject to certain restrictions specified in the
Indenture, except that the right of the Holder of this Certificate to receive
payment of the principal of and interest and Make-Whole Premium, if any, on
this Certificate on or after the respective due dates, or to institute suit
for the enforcement of any such payment, shall not be impaired or affected
without the consent of such Holder.
The Certificates are issuable only as registered Certificates without
coupons in denominations of $1,000 and integral multiples thereof. So long as
any of the Certificates remain Outstanding, the Indenture Trustee will
maintain an office or agency where the Certificates may be presented for
payment and a facility or agency in New York, New York where the Certificates
may be presented for registration of transfer and for exchange as provided in
the Indenture. As provided in the Indenture and subject to certain
limitations therein, this Certificate is transferable, and upon surrender of
this Certificate for registration of transfer at the principal corporate trust
office of the Indenture Trustee, or at the office or agency maintained for such
purposes, duly endorsed by, or accompanied by a written instrument of transfer
in form satisfactory to the Owner Trustee and the Indenture Trustee duly
executed by, the Holder or his attorney duly authorized in writing, one or
more new Certificates of the same Series and Maturity and interest rate and of
authorized denominations and for the same aggregate principal amount will be
issued to the designated transferee or transferees.
As provided in the Indenture and subject to certain limitations
therein, the Certificates are exchangeable for an equal aggregate principal
amount of Certificates of the same Series and Maturity and interest rate and
of authorized denominations, as requested by the Holder surrendering the same,
upon presentation thereof for such purpose at the principal corporate trust
office of the Indenture Trustee, or at an office or agency maintained for such
purpose.
No service charge shall be levied for any such registration of
transfer or exchange, but the Indenture Trustee may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection
therewith.
Prior to the due presentment for registration of transfer of this
Certificate, the Owner Trustee, the Indenture Trustee, any agent of the Owner
Trustee or the Indenture Trustee, the Paying Agent, if any, the Registrar and
the Lessee shall deem and treat the person in whose name this Certificate is
registered as the absolute owner hereof for all purposes whether or not this
Certificate is overdue, and neither the Owner Trustee, the Indenture Trustee
(nor any agent of the Owner Trustee or the Indenture Trustee), nor the Paying
Agent, if any, the Registrar nor the Lessee shall be affected by notice to the
contrary.
The indebtedness evidenced by this Certificate is, to the extent and
in the manner provided in the Indenture, subordinate and subject in right of
payment to the prior payment in full of the Secured Obligations (as defined in
the Indenture) in respect of [Series A Certificate](1), [Series A and Series B
Certificates](2) and this Certificate is issued subject to such provisions.
The Holder of this Certificate, by accepting the same, (a) agrees to and shall
be bound by such provisions, (b) authorizes and directs the Indenture Trustee
on such Holder's behalf to take such action as may be necessary or appropriate
to effectuate the subordination as provided in the Indenture and (c) appoints
the Indenture Trustee such Holder's attorney-in-fact for such purpose.(*)
- ------------
(1) To be inserted in the case of a Series B Certificate.
(2) To be inserted in the case of a Series C Certificate.
(*) To be inserted for each Certificate other than any Series A Certificate.
As provided in the Indenture, the Indenture and the Certificates
shall be construed in accordance with and governed by the laws of the State of
New York.
This Certificate shall not be secured by or be entitled to any
benefit under the Indenture or be valid or obligatory for any purpose unless
authenticated by the Indenture Trustee as evidenced by the manual signature of
one of its authorized officers on the certificate below.
IN WITNESS WHEREOF, the Owner Trustee has caused this Equipment Trust
Certificate (Federal Express Corporation Trust No. N673FE) to be duly executed
in its corporate name by its officer thereunto duly authorized.
Dated: May ___, 1997 STATE STREET BANK AND TRUST COMPANY OF
CONNECTICUT, NATIONAL ASSOCIATION,
not in its individual capacity,
but solely as Owner Trustee
By
------------------------------------
Name: Paul D. Allen
Title: Vice President
[FORM OF INDENTURE TRUSTEE'S CERTIFICATE OF AUTHENTICATION]
This is one of the Equipment Trust Certificates (Federal Express
Corporation Trust No. N673FE) referred to in the within mentioned Indenture.
Dated: May ___, 1997 FIRST SECURITY BANK, NATIONAL ASSOCIATION,
not in its individual capacity,
but solely as Indenture Trustee
By
------------------------------------
Name: Greg A. Hawley
Title: Vice President
SCHEDULE I
[Reserved]
SCHEDULE II
DEFINITIONS
(FEDERAL EXPRESS CORPORATION TRUST NO. N673FE)
GENERAL PROVISIONS
The following terms shall have the following meanings for all
purposes of the Operative Agreements (other than the Pass Through Agreement,
the Series Supplements, the Intercreditor Agreement and the Liquidity
Facilities) referred to below, unless otherwise defined in an Operative
Agreement or the context thereof shall otherwise require. In the case of any
conflict between the provisions of this Schedule and the provisions of any
Operative Agreement, the provisions of such Operative Agreement shall control
the construction of such Operative Agreement.
Unless the context otherwise requires, (i) references to agreements
shall be deemed to mean and include such agreements as amended and
supplemented from time to time, and (ii) references to parties to agreements
shall be deemed to include the successors and permitted assigns of such
parties.
DEFINED TERMS:
Additional Insured. As defined in Article 13 of the Lease.
Aeronautics Authority. As appropriate, the Federal Aviation
Administration and/or the Administrator of the Federal Aviation
Administration, any successor to the former United States Civil Aeronautics
Board, or any Person, governmental department, bureau, commission or agency
located in the United States succeeding to the functions of any of the
foregoing.
Affidavits. The affidavits of citizenship of the Owner Trustee and
the Owner Participant.
Affiliate. With respect to any Person, any other Person directly or
indirectly controlling, controlled by or under common control with such
Person. For the purposes of this definition, "control" (including "controlled
by" and "under common control with") shall mean the power, directly or
indirectly, to direct or cause the direction of the management and policies of
such Person whether through the ownership of voting securities or by contract
or otherwise. In no event shall the Owner Trustee or the Lessor be deemed an
Affiliate of the Owner Participant.
After-Tax Basis. A basis such that any payment to be received by a
Person shall be supplemented by a further payment to such Person so that the
sum of the two payments, after deduction of all Taxes resulting from the
receipt or accrual of such payments, shall be equal to the payment to be
received. In the case of amounts payable to the Lessor, the Owner Participant,
or any corporate Affiliate of the Owner Participant, it shall be presumed that
such Person is at all times subject to Federal income tax at the maximum
marginal rate generally applicable to corporations from time to time and
actual state, local and foreign income taxes.
Air Carrier. Any U.S. Air Carrier and any "foreign air carrier" (as
defined in the Transportation Code) as to which there is in force a permit
granted under Section 41302 of the Transportation Code.
Airbus Guaranty. The Guaranty to be dated the Delivery Date executed
by the Manufacturer and guaranteeing AVSA's Warranty Bill of Sale.
Aircraft. The Airframe to be sold by AVSA to the Owner Trustee as
provided in the Participation Agreement and to be leased under the Lease (or
any permitted substitute airframe thereunder) together with two Engines
(whether either is an initial Engine or a Replacement Engine) whether or not
any of such initial or Replacement Engines may from time to time be installed
on such Airframe or may be installed on any other airframe or on any other
aircraft, including any aircraft substituted pursuant to Section 11.03 of the
Lease. Prior to delivery of the initial Lease Supplement, references in the
Operative Agreements (including Section 3.05 of the Participation Agreement)
to Aircraft shall mean the Airbus A300F4-605R airframe bearing FAA
Registration Number N673FE and Manufacturer's serial number 780, together with
two General Electric CF6-80C2-A5F engines.
Airframe. The Airbus A300F4-605R aircraft (excluding the Engines or
engines from time to time installed thereon) to be leased by the Lessor to the
Lessee pursuant to the Lease and the initial Lease Supplement and having the
United States FAA Registration Number initially and manufacturer's serial
number specified in the initial Lease Supplement, including (i) all Parts in
respect thereof and (ii) any Replacement Airframe which may be substituted
pursuant to Section 11.03 of the Lease.
Ancillary Agreement. Any written agreement of the Lessee to which the
Lessor is a party or to which the Lessor has consented in writing entered into
on or prior to the Delivery Date or any date thereafter in connection with the
transactions contemplated by the Operative Agreements, as such agreement may
be amended and supplemented from time to time with the consent of the Lessor
and delivered to the Owner Trustee, the Indenture Trustee, the Pass Through
Trustee, the Subordination Agent, each Liquidity Provider and the Owner
Participant.
Ancillary Agreement I. The Ancillary Agreement I (Federal Express
Corporation Trust No. N673FE), dated the Certificate Closing Date, among the
Lessee, the Owner Trustee, not in its individual capacity, but solely as Owner
Trustee, the Owner Participant and the Indenture Trustee not in its individual
capacity, but solely as Indenture Trustee, as originally executed or as
amended, modified or supplemented with the consent of all the parties thereto.
Ancillary Agreement II. The Ancillary Agreement II (Federal Express
Corporation Trust No. N673FE), dated the Certificate Closing Date, among the
Lessee, the Owner Trustee, not in its individual capacity, but solely as Owner
Trustee, the Owner Participant and the Indenture Trustee not in its individual
capacity, but solely as Indenture Trustee, as originally executed or as
amended, modified or supplemented with the consent of all the parties thereto.
Application. The application for registration of the Aircraft with
the FAA in the name of the Owner Trustee.
Appraisal. The report prepared by BK Associates, Inc. and to be
delivered to the Owner Participant (with an abbreviated report to the Lessee)
on the Delivery Date pursuant to Section 4.02(h) of the Participation
Agreement.
Assignment and Assumption Agreement. Any agreement delivered in
compliance with Section 7.03(d) of the Participation Agreement.
Average Life Date. For any Certificate, the date which follows the
prepayment date by a period equal to the Remaining Weighted Average Life of
such Certificate.
AVSA. AVSA S.A.R.L., a societe a responsabilite limitee, organized
and existing under the laws of France.
AVSA Consent and Agreement. The Consent and Agreement dated as of
May 1, 1997, executed by AVSA.
AVSA's FAA Bill of Sale. The bill of sale for the Airframe on AC
Form 8050-2, or such other form as may be approved by the Aeronautics
Authority, executed by AVSA in favor of the Owner Trustee and to be dated the
Delivery Date.
AVSA's Warranty Bill of Sale. The full warranty bill of sale
covering the Aircraft (and specifically referring to each Engine) executed by
AVSA as owner of the Aircraft in favor of the Owner Trustee and to be dated
the Delivery Date.
Bankruptcy Code. The Federal Bankruptcy Code of 1978, as amended, and
any successor thereto.
Bankruptcy Default. An event specified in Section 16.01(e), (f) or
(g) of the Lease which either does or, with the giving of notice or lapse of
time or both, would constitute an Event of Default.
Basic Rent. The aggregate periodic rent payable for the Aircraft
throughout the Basic Term pursuant to Section 3.02 of the Lease, adjusted
pursuant to Article 3 of the Lease.
Basic Term. The period commencing at the beginning of the day on the
Delivery Date and ending at the end of the day on December 11, 2020, or such
earlier date on which the Lease shall be terminated as provided therein.
Beneficial Interest. The interest of the Owner Participant under the
Trust Agreement.
Business Day. Any day on which commercial banks are not authorized or
required to close in New York, New York, Memphis, Tennessee and the city in the
United States in which the office or agency is maintained by the Pass Through
Trustee for the payment of the Pass Through Certificates, and after the Lien
of the Indenture is discharged, Boston, Massachusetts.
Certificate Closing Date. The date of the closing with respect to the
purchase of Certificates by the Pass Through Trustee contemplated by Section
2.01(b) of the Participation Agreement.
Certificates. The Equipment Trust Certificates (Federal Express
Corporation Trust No. N673FE), issued by the Owner Trustee pursuant to the
Indenture and any certificate issued in exchange therefor or replacement
thereof pursuant to the Indenture.
Change in Tax Law. Any change to the Code or the Treasury regulations
promulgated thereunder or the publication of any revenue ruling, revenue
procedure or any informational release by the Internal Revenue Service or the
Department of Treasury either of which would change or would allow a change in
the tax assumptions or structure upon which the lease economics were based,
provided that the Owner Participant or the Lessee has notified the other party
of such change in writing prior to the Delivery Date.
Change in Tax Rate. Any amendment, modification, deletion, addition,
or change to the Code which is enacted into law after the Delivery Date which
changes the highest marginal statutory rate of Federal income tax applicable
to the Owner Participant (other than a change which is in the nature of a
minimum tax).
Citizen of the United States. A citizen of the United States as
defined in Section 40102(a)(15) of the Transportation Code, or any analogous
part of any successor or substituted legislation or regulation at the time in
effect.
Class A Liquidity Provider. Has the meaning specified in Section
1.01 of the Intercreditor Agreement.
Class B Liquidity Provider. Has the meaning specified in Section
1.01 of the Intercreditor Agreement.
Closings. The closing with respect to the acquisition of the Pass
Through Certificates by the Underwriters and the closing with respect to the
acquisition of Certificates by the Pass Through Trustee.
Code. Except as otherwise provided, the Internal Revenue Code of
1986, as amended from time to time.
Collateral Account. The deposit account established and maintained
pursuant to Section 2.13 of the Indenture.
Collateral Account Control Agreement. The Collateral Account Control
Agreement dated as of May 1, 1997 among State Street Bank and Trust Company,
the Indenture Trustee and the Owner Trustee.
Commitment. The amount of the Owner Participant's participation in
the Purchase Price required to be made available or paid as provided in
Section 3.02 of the Participation Agreement.
Consent and Agreement. The Consent and Agreement dated as of May 1,
1997 executed by the Manufacturer.
Consent and Guaranty. The Consent and Guaranty of the Manufacturer
attached to the Purchase Agreement.
Corporate Trust Administration. The Corporate Trust Administration
office of the Owner Trustee located at 750 Main Street, Hartford, Connecticut
06103, Attention: Corporation Trust Administration, or such other office at
which the Owner Trustee's corporate trust business shall be administered which
the Owner Trustee shall have specified by notice in writing to the Lessee, the
Owner Participant and the Indenture Trustee.
Corporate Trust Department. The Corporate Trust Department office of
the Indenture Trustee located at 79 South Main Street, Salt Lake City, Utah
84111, Attention: Corporate Trust Department, or such other office at which
the Indenture Trustee's corporate trust business shall be administered which
the Indenture Trustee shall have specified by notice in writing to the Lessee,
the Owner Participant and the Owner Trustee.
CRAF Program. Has the meaning specified in Section 7.01(f) of the
Lease.
Cut-Off Date. December 10, 1997.
Debt Portion. The amount specified as such on Schedule IV to the
Participation Agreement.
Debt Rate. The weighted average (based on Outstanding principal
amount) rate of interest on the Certificates issued pursuant to the Indenture.
Default. Any event or condition which, with the lapse of time or the
giving of notice, or both, would constitute an Event of Default.
Delivery Date. The date on which the Aircraft is delivered and sold
by AVSA to the Lessor and leased by the Lessor to the Lessee under the Lease,
which date shall also be the date of the initial Lease Supplement.
Delivery Notice. Notice of the Aircraft's Delivery Date, given by
the Lessee as provided in Section 3.01 of the Participation Agreement and
including any notice with respect to a postponed Delivery Date given by the
Lessee pursuant to Section 3.05(c) of the Participation Agreement.
Eligible Deposit Account. Either (a) a segregated account with an
Eligible Institution or (b) a segregated trust account with the corporate
trust department of a depository institution with corporate trust powers
organized under the laws of the United States or any state thereof, or the
District of Columbia, and whose deposits are insured by the Federal Deposit
Insurance Corporation, provided that such institution also has a combined
capital and surplus of at least $100,000,000 and a rating of A or better from
the Thomson Bank Watch.
Eligible Institution. A depository institution organized under the
laws of the United States or any one of the states thereof, or the District of
Columbia, or any domestic branch of a foreign bank, which in any such case at
all times (a) has either (x) a long-term unsecured debt rating of at least Aa2
by Moody's or (y) a short-term certificate of deposit rating of P-1 by
Moody's, (b) has either (x) a long-term unsecured debt rating of a least AA by
S&P or (y) a short-term certificate of deposit rating of A-1+ by S&P and (c)
is a member of the Federal Deposit Insurance Corporation.
Engine. Each of the two General Electric CF6-80C2-A5F engines listed
by its manufacturer's serial number in the initial Lease Supplement and leased
pursuant to the Lease, whether or not from time to time installed on the
Airframe or installed on any other airframe or on any other aircraft, and any
Replacement Engine which may from time to time be substituted for an Engine
pursuant to Section 7.02(a)(vii), 10.02(c), 10.03, 11.03, 11.04 or 12.02 of
the Lease, together with all Parts related thereto. Except as otherwise
provided, at such time as a Replacement Engine shall be so substituted and the
Engine for which the substitution is made shall be released from the Lien of
the Indenture, such replaced Engine shall cease to be an "Engine" under the
Lease. The term "Engines" means, as of any date of determination, both Engines
then leased to the Lessee pursuant to the Lease.
Engine Consent. The Engine Consent dated as of May 1, 1997, executed
by the Engine Manufacturer.
Engine Manufacturer. General Electric Company, a New York
corporation.
Engine Warranty Assignment. The Engine Warranty Assignment (Federal
Express Corporation Trust No. N673FE), dated as of May 1, 1997 between the
Lessor and the Lessee.
ERISA. The Employee Retirement Income Security Act of 1974, as
amended.
ERISA Plan. As defined in Section 8.01(b)(xii) of the Participation
Agreement.
Estimated Expense Amount. Has the meaning specified in Section
10.01(a) of the Participation Agreement.
Event of Default. Each of the events specified in Article 16 of the
Lease.
Event of Loss. Any of the following events with respect to the
Aircraft, the Airframe or any Engine: (i) loss of such property or its use (A)
for a period in excess of 60 days due to theft or disappearance or such longer
period, not to exceed 180 days from the end of such initial 60-day period, if
and so long as the location of such property is known to the Lessee and the
Lessee is diligently pursuing recovery of such property, or to the end of the
Term, if less (unless such theft or disappearance constitutes an Event of Loss
pursuant to (i)(B) or (ii) hereof) or (B) for a period in excess of 60 days
due to the destruction, damage beyond economic repair or rendition of such
property permanently unfit for normal use by Lessee for any reason whatsoever;
(ii) any damage to such property which results in an insurance settlement with
respect to such property on the basis of a total loss, or constructive or
compromised total loss; (iii) (1) condemnation, confiscation or seizure of, or
requisition of title to such property by the Government, any foreign
government or purported government or any agency or instrumentality thereof,
or (2) condemnation, confiscation, or seizure of, or requisition or taking of,
use of such property (A) by a foreign government or instrumentality or agency
of any such foreign government, for a period in excess of 180 days (or such
shorter period ending on the earlier of the expiration of the Term or on the
date on which an insurance settlement with respect to such property on the
basis of a total loss or constructive or compromised total loss shall occur)
or (B) by the Government for a period extending beyond the Term; and (iv) as a
result of any law, rule, regulation, order or other action by the Aeronautics
Authority or other governmental body having jurisdiction, the use of the
Aircraft or Airframe in the normal course of air transportation of cargo shall
have been prohibited by virtue of a condition affecting all Airbus A300-600
series aircraft equipped with engines of the same make and model as the
Engines for a period of twelve (12) consecutive months, unless the Lessee,
prior to the expiration of such twelve (12) month period, shall be diligently
carrying forward all steps which are necessary or desirable to permit the
normal use of the Aircraft or Airframe or, in any event, if such use of the
Aircraft or the Airframe shall have been prohibited for a period of
twenty-four (24) consecutive months or until the end of the Term, if earlier.
The date of such Event of Loss shall be (s) the 61st day or the 241st day, as
the case may be, following loss of such property or its use due to theft or
disappearance (or the end of the Term or the Lessee's abandonment of diligent
efforts to recover such property, if earlier); (t) the 61st day following the
date of any destruction, damage beyond economic repair or rendition of such
property permanently unfit for normal use; (u) the date of any insurance
settlement on the basis of a total loss or constructive or compromised total
loss; (v) the date of any condemnation, confiscation, seizure or requisition
of title of such property; (w) the 181st day following condemnation,
confiscation, seizure or requisition for use of such property by a foreign
government referred to in clause (iii)(2)(A) above (or the end of the Term or
the date of any insurance settlement described therein, if earlier than such
181st day); (x) the last day of the Term in the case of requisition for use of
such property by the Government; (y) the last day of the 12 month or 24 month
period, referred to in clause (iv) above (or if earlier, the end of the Term
or abandonment of the Lessee's efforts to restore the normal use of the
Aircraft). An Event of Loss with respect to the Aircraft shall be deemed to
have occurred if any Event of Loss occurs with respect to the Airframe.
Excepted Payments. Collectively, (i) indemnity, expense,
reimbursement or other payments paid or payable by the Lessee in respect of
the Owner Participant, the Owner Trustee in its individual capacity or any of
their respective successors, permitted assigns, directors, officers,
employees, servants and agents or Affiliates, pursuant to the Participation
Agreement or any other Operative Agreement or any indemnity hereafter granted
to the Owner Participant or the Owner Trustee in its individual capacity
pursuant to the Lease or the Participation Agreement, (ii) proceeds of public
liability insurance (or government indemnities in lieu thereof) in respect of
the Aircraft payable as a result of insurance claims paid for the benefit of,
or losses suffered by, the Owner Trustee or the Indenture Trustee in their
respective individual capacities or by the Owner Participant, or their
respective successors, permitted assigns or Affiliates, (iii) proceeds of
insurance maintained with respect to the Aircraft by the Owner Participant
(whether directly or through the Owner Trustee) maintained in accordance with
Section 13.05 of the Lease but not required under Article 13 of the Lease,
(iv) payments of Supplemental Rent by the Lessee in respect of any amounts
payable under the Tax Indemnity Agreement, (v) any purchase price paid to the
Owner Participant for its interest in the Trust Estate pursuant to Section
7.03(d) of the Participation Agreement, (vi) subject to Section 3.05 of the
Lease, payments constituting increases in Basic Rent attributable to payments
arising pursuant to Section 5 of the Tax Indemnity Agreement, (vii) any
payments in respect of interest to the extent attributable to payments
referred to in clauses (i) through (vi) above and (viii) any right to demand,
collect or otherwise receive and enforce the payment of any amount described
in clauses (i) through (v) and (vii) above (except with respect to interest
attributable to payments referred to in clause (vi) above).
Expense; Expenses. Have the meaning specified in Section 9.01(a) of
the Participation Agreement.
Fair Market Renewal Term. A term with respect to which the Lessee has
exercised its option to renew the Lease pursuant to the second paragraph of
Section 4.01(a) thereof and with respect to which the conditions set forth in
such Section 4.01(a) are met.
Fair Market Rental. An amount determined on the basis of, and equal
in amount to, the rental which would be obtained in an arm's-length
transaction between an informed and willing lessee and an informed and willing
lessor unaffiliated with such lessee, neither being under any compulsion to
lease. In such determination, it shall be assumed that the Aircraft is in the
condition required under the Lease in the case of return of the Aircraft
pursuant to Article 12 of the Lease and Fair Market Rental shall be determined
in accordance with the provisions of Section 4.03 of the Lease.
Fair Market Value. An amount determined on the basis of, and equal in
amount to, the value which would be obtained in an arm's-length transaction
between an informed and willing purchaser under no compulsion to buy and an
informed and willing seller unaffiliated with such purchaser and under no
compulsion to sell, assuming the Aircraft (or other property) is unencumbered
by the Lease. In such determination, except for purposes of Section 17.01 of
the Lease (when it shall be determined based upon the actual condition and
location of the Aircraft), it shall be assumed that the Aircraft is in the
condition required under the Lease in the case of return of the Aircraft
pursuant to Article 12 of the Lease and Fair Market Value shall be determined
in accordance with the provisions of Section 4.03 of the Lease.
Federal Aviation Administration; FAA. The United States Federal
Aviation Administration and any successor agency or agencies thereto.
Final Drawing. Has the meaning specified in Section 1.01 of the
Intercreditor Agreement.
Fixed Renewal Rent. Semi-annual payments of rent during the Fixed
Renewal Term equal to the lesser of (i) Fair Market Rental as determined as of
the commencement of such Fixed Renewal Term and (ii) 50% of the average actual
semi-annual Basic Rent payable during the Basic Term.
Fixed Renewal Term. The term with respect to which the Lessee has
exercised its option to renew the Lease pursuant to the first paragraph of
Section 4.01(a) thereof and with respect to which the conditions set forth in
such Section 4.01(a) are met.
FPO Price. Has the meaning set forth in Section 4.02(a)(F) of the
Lease.
French Pledge Agreement. The French Pledge Agreement dated as of May
1, 1997 between the Owner Trustee and the Indenture Trustee.
FSB. First Security Bank, National Association, a national banking
association.
Government. The United States of America or an agency or
instrumentality thereof the obligations of which bear the full faith and
credit of the United States of America.
GTA. The General Terms Agreement dated as of July 3, 1991 between the
Engine Manufacturer and the Lessee related to the purchase by the Lessee of the
Engines as originally executed or as modified, amended or supplemented in
accordance with the terms thereof, but only insofar as the General Terms
Agreement relates to the Engines, to the extent assigned to the Owner Trustee
pursuant to the Engine Warranty Assignment.
Holder of a Certificate; Certificate Holder; Holder. As of any
particular time, the Person in whose name a Certificate shall be registered
(but not including the holder of any Pass Through Certificate).
Indemnitee. Each of SSB, in its individual capacity and as Owner
Trustee and Lessor, the Subordination Agent, in its individual capacity and in
its capacity as Subordination Agent, each Liquidity Provider, the Owner
Participant, the Indenture Trustee, in its individual capacity and as trustee,
the Owner Participant Guarantor and any successor (including any trustee which
may succeed to the Lessor's interest under the Lease), Affiliate, assign,
officer, director, employee, agent and servant of any of the foregoing, the
Lessor's Estate and the Trust Indenture Estate. Neither the Pass Through
Trustee nor any holder of a Pass Through Certificate shall be deemed to be an
Indemnitee.
Indenture. The Trust Indenture and Security Agreement (Federal
Express Corporation Trust No. N673FE), dated as of May 1, 1997, between the
Lessor and the Indenture Trustee, as supplemented by the Indenture and
Security Agreement Supplement.
Indenture and Security Agreement Supplement. The Indenture and
Security Agreement Supplement No. 1 (Federal Express Corporation Trust No.
N673FE) to be dated the Delivery Date, substantially in the form of Exhibit A
to the Indenture.
Indenture Default. Any event or condition which, with the lapse of
time or the giving of notice, or both, would constitute an Indenture Event of
Default.
Indenture Documents. Has the meaning specified in the Granting
Clause of the Indenture.
Indenture Event of Default. Each of the events specified in Section
7.01 of the Indenture.
Indenture Trustee. First Security Bank, National Association, a
national banking association, not in its individual capacity but solely as
Indenture Trustee under the Indenture.
Indenture Trustee's Liens. Any Lien against, on or with respect to
the Aircraft, the Lessor's Estate or the Trust Indenture Estate or any part
thereof resulting from (i) claims against the Indenture Trustee not related to
the administration of the Trust Indenture Estate or any transactions pursuant
to the Indenture or any document included in the Trust Indenture Estate, (ii)
any act or omission of the Indenture Trustee which is not related to the
transactions contemplated by the Operative Agreements or is in violation of
any of the terms of the Operative Agreements or (iii) Taxes imposed against
the Indenture Trustee in its individual capacity in respect of which the Lessee
has not indemnified (and is not obligated to indemnify) the Indenture Trustee
in such capacity.
Independent Appraisal. An appraisal conducted pursuant to Section
4.03 of the Lease.
Independent Investment Banker. An independent investment banking
institution of national standing appointed by the Lessee that is independent
in fact, does not have any direct financial interests, or any material
indirect financial interest, in the Lessee or any Affiliate of the Lessee, and
is not connected with the Lessee or any Affiliate of the Lessee, as an
officer, employee, promoter, underwriter, trustee, partner, director or Person
performing similar functions; provided, that if the Indenture Trustee shall
not have received written notice of such an appointment at least 10 days prior
to the Prepayment Date, "Independent Investment Banker" shall mean such an
institution appointed by the Indenture Trustee.
Intercreditor Agreement. The Intercreditor Agreement dated as of May
1, 1997, among the Pass Through Trustee, the Class A Liquidity Provider, the
Class B Liquidity Provider and the Subordination Agent.
Interest Drawing. Has the meaning specified in Section 1.01 of the
Intercreditor Agreement.
Invoice. The invoice for the Aircraft given by AVSA to the Lessor.
Lease. The Lease Agreement (Federal Express Corporation Trust No.
N673FE) dated as of May 1, 1997, entered into by the Lessor and the Lessee
concurrently with the execution and delivery of the Indenture, including,
without limitation, supplementation by one or more Lease Supplements entered
into pursuant to the applicable provisions of the Lease.
Lease Supplement. The Lease Supplement No. 1 (Federal Express
Corporation Trust No. N673FE) to be dated the Delivery Date, substantially in
the form of Exhibit A to the Lease.
Lease Term. The period commencing on the Delivery Date and ending at
the end of the Basic Term.
Lessee. Federal Express Corporation, a Delaware corporation.
Lessee Documents. Has the meaning set forth in Section 6.01(b) of the
Participation Agreement.
Lessor. State Street Bank and Trust Company of Connecticut, National
Association, a national banking association, not in its individual capacity
but solely as Owner Trustee under the Trust Agreement.
Lessor's Estate. All estate, right, title and interest of the Owner
Trustee in and to the Collateral Account, the Liquid Collateral, the Aircraft,
the Lease, any Lease Supplement, the Participation Agreement, AVSA's FAA Bill
of Sale, AVSA's Warranty Bill of Sale, the Airbus Guaranty, the Purchase
Agreement, the Purchase Agreement Assignment, the Consent and Agreement, the
AVSA Consent and Agreement, the Consent and Guaranty (to the extent assigned
by the Purchase Agreement Assignment), any Ancillary Agreement, the GTA, the
Engine Warranty Assignment, the Engine Consent, any warranty with respect to
the Airframe and the Engines, all amounts of Basic Rent and Supplemental Rent,
including without limitation, insurance proceeds (other than insurance
proceeds payable to or for the benefit of the Owner Trustee in its individual
capacity or the Owner Participant) and requisition, indemnity or other
payments of any kind for or with respect to the Aircraft (except amounts owing
to the Owner Participant, to the Indenture Trustee, to the Owner Trustee in its
individual capacity, or to any of their respective directors, officers,
employees and agents pursuant to Articles 8 and 9 of the Participation
Agreement), and all other property of the Owner Trustee purportedly subjected
to the Lien of the Indenture by the Granting Clause thereof; provided that in
no event shall "Lessor's Estate" include any Excepted Payment.
Lessor's Liens. Liens against, on or with respect to the Aircraft,
the Lessor's Estate or the Trust Indenture Estate or any part thereof, title
thereto or any interest therein arising as a result of (i) claims against the
Lessor, in its individual capacity or as Owner Trustee, or the Owner
Participant, in each case not related to the transactions contemplated by the
Operative Agreements, (ii) acts or omissions of the Lessor in its individual
capacity or as Owner Trustee, and, in the case of the Lessor in its individual
capacity, arising from its gross negligence or willful misconduct or expressly
prohibited under the Operative Agreements and any act or omission of the Owner
Participant which is in violation of any of the terms of the Operative
Agreements, (iii) Taxes or Expenses imposed against the Lessor, in its
individual capacity or as Owner Trustee, Owner Participant, Lessor's Estate or
the trust created by the Trust Agreement which are not required to be
indemnified against by the Lessee pursuant to the Participation Agreement by
reason of Section 8.01(b) or 9.01(b) thereof and which are not required to be
indemnified against by the Lessee pursuant to the Tax Indemnity Agreement, or
(iv) claims against the Lessor or the Owner Participant arising from the
voluntary transfer by the Lessor or the Owner Participant of its interests in
the Aircraft other than a transfer of the Aircraft pursuant to Section 4.02(a)
or Article 10 or 11 of the Lease and other than a transfer pursuant to the
exercise of the remedies set forth in Article 17 of the Lease.
Lien. Any mortgage, pledge, lien, charge, encumbrance, lease or
security interest or other similar interest.
Liquid Collateral. All amounts and securities deposited from time to
time in the Collateral Account and all the products, investments, earnings and
proceeds of the foregoing, including, but not limited to, all proceeds of the
investment or conversion thereof, voluntary or involuntary, into cash,
Specified Investments or other property, all rights to payment of any and
every kind, and other forms of obligations, and instruments and other property
which at any time constitute all or part or are included in the proceeds of
any of the foregoing.
Liquidity Facility. Has the meaning specified in Section 1.01 of the
Intercreditor Agreement.
Liquidity Provider. Has the meaning specified in Section 1.01 of the
Intercreditor Agreement.
Losses. Has the meaning specified in Section 17.02(a) of the
Participation Agreement.
Loss Payee. Has the meaning specified in Section 13.02(b)(i) of the
Lease.
Majority in Interest of Certificate Holders. As of a particular date
of determination, the Holders of more than 50% of the aggregate unpaid
principal amount of all Certificates outstanding as of such date excluding for
purposes of this definition any Certificates held by (i) the Owner Trustee or
the Owner Participant or any interests of the Owner Participant unless all
Certificates then outstanding shall be held by the Owner Participant, (ii) the
Lessee or (iii) any Affiliate of any thereof.
Make-Whole Premium. An amount determined as of the day before the
applicable Prepayment Date (or date of purchase, as the case may be) which an
Independent Investment Banker determines to be equal to the excess, if any, of
(i) the present value of the remaining scheduled payments of such principal
amount or portion thereof and interest thereon (excluding interest accrued
from the immediately preceding Payment Date to such Prepayment Date or date of
purchase, as the case may be) to the Maturity of such Certificate in
accordance with generally accepted financial practices assuming a 360-day year
consisting of twelve 30-day months at a discount rate equal to the Treasury
Yield, all as determined by the Independent Investment Banker over (ii) the
outstanding principal amount of such Certificate plus accrued interest.
Manufacturer. Airbus Industrie G.I.E., a groupement d'interet
economique formed under the laws of France.
Maturity. With respect to any Certificate, the date on which the
final principal amount of such Certificate is scheduled to be due and payable.
Moody's. Moody's Investors Service, Inc.
Net Present Value of Rents. The net present value, as of the
Delivery Date, of Basic Rent set forth in Schedule II of the Lease, discounted
at a rate equal to the Debt Rate per annum compounded semi-annually.
Non-U.S. Person. Any Person other than a U.S. Person.
Obsolete Parts. Parts which are severable from the Aircraft in
accordance with clauses (ii) and (iii) of the proviso to Section 9.02(b) of
the Lease and the Lessee in good faith determines to be obsolete or no longer
suitable or appropriate for use on the Airframe or any Engine.
Officer's Certificate. When delivered pursuant to the Indenture, a
certificate signed by a Responsible Officer of the Lessee or the Owner
Trustee, as the case may be, and delivered to the Indenture Trustee. Each
such certificate shall include the statements provided for in Section 15.07 of
the Indenture.
Operative Agreements. The Participation Agreement, the Trust
Agreement, AVSA's FAA Bill of Sale, AVSA's Warranty Bill of Sale, the Airbus
Guaranty, the Purchase Agreement, the Purchase Agreement Assignment, the GTA,
the Engine Warranty Assignment, the French Pledge Agreement, the Lease, the
Lease Supplement, the Owner Participant Guaranty, the Owner Trustee Guaranty,
if any, any Ancillary Agreement entered into by or with the written consent of
the Indenture Trustee, which by its terms is an Operative Agreement, the
Certificates outstanding at the time of reference, the Indenture, the
Indenture and Security Agreement Supplement, the Consent and Agreement, the
AVSA Consent and Agreement, the Consent and Guaranty (to the extent assigned
by the Purchase Agreement Assignment), the Engine Consent, the Tax Indemnity
Agreement, each Liquidity Facility, the Intercreditor Agreement, the
Collateral Account Control Agreement and any Assignment and Assumption
Agreement.
Opinion of Counsel. When delivered pursuant to the Indenture, a
written opinion of legal counsel, who in the case of counsel (a) for the
Lessee may be (i) an attorney employed by the Lessee who is generally
empowered to deliver such written opinions, (ii) Davis Polk & Wardwell or a
successor firm or (iii) other counsel designated by the Lessee and reasonably
satisfactory to the Indenture Trustee and (b) for the Owner Trustee or the
Indenture Trustee, an attorney selected by such Person and, in the case of the
Owner Trustee, reasonably satisfactory to the Indenture Trustee.
Outstanding. When used with respect to Certificates, as of the date
of determination and subject to the provisions of Section 10.04 of the
Indenture, all Certificates theretofore executed and delivered under the
Indenture, with the exception of the following:
(i) Certificates theretofore cancelled by the Indenture Trustee or
delivered to the Indenture Trustee for cancellation pursuant to
Section 2.08 of the Indenture or otherwise;
(ii) Certificates for which prepayment money in the necessary amount
has been theretofore deposited with the Indenture Trustee in trust
for the Holders of such Certificates pursuant to Section 14.01 of the
Indenture; provided, that if such Certificates are to be prepaid,
notice of such prepayment has been duly given pursuant to the
Indenture or provision therefor satisfactory to the Indenture Trustee
has been made; and
(iii) Certificates in exchange for or in lieu of which other
Certificates have been executed and delivered pursuant to Article II
of the Indenture.
Owner Participant. The trustor originally named in the Trust
Agreement and any successor thereto, and any Person to which the Owner
Participant transfers, in accordance with the Trust Agreement, its right,
title and interest in and to the Operative Agreements and the Lessor's Estate.
Owner Participant Guarantor. Philip Morris Capital Corporation, a
Delaware corporation, and any other provider of an Owner Participant Guaranty.
Owner Participant Guaranty. The Owner Participant Guaranty dated the
Certificate Closing Date by the Owner Participant Guarantor in favor of the
Lessee, the Owner Trustee, the Indenture Trustee and the Pass Through Trustee,
and any guaranty delivered in compliance with Section 7.03(d) of the
Participation Agreement.
Owner Trustee. SSB, not in its individual capacity except as
otherwise expressly stated, but solely as Owner Trustee under the Trust
Agreement.
Owner Trustee Guarantor. The provider of an Owner Trustee Guaranty.
Owner Trustee Guaranty. Any guaranty delivered in compliance with
Section 11.01(b)(ii) of the Participation Agreement.
Owner's Economic Return. The Owner Participant's anticipated net
after-tax book yield and aggregate after-tax cash during the Basic Term
utilizing the multiple investment sinking fund method of analysis, computed on
the basis of the same methodology and assumptions as were utilized by the
Owner Participant in determining Basic Rent, Stipulated Loss Value and
Termination Value percentages, as the case may be, as such assumptions may be
adjusted for events which have been the basis of adjustments to Rent pursuant
to Section 3.04 of the Lease.
Participation Agreement. The Participation Agreement (Federal Express
Corporation Trust No. N673FE), dated as of May 1, 1997, among the Lessee, the
Owner Trustee not in its individual capacity except as otherwise expressly
provided therein, but solely as owner trustee, the Owner Participant, the
Indenture Trustee not in its individual capacity except as otherwise expressly
provided therein, but solely as indenture trustee, the Pass Through Trustee
not in its individual capacity except as otherwise expressly provided therein,
but solely as pass through trustee and the Subordination Agent not in its
individual capacity except as otherwise expressly provided therein, but solely
as subordination agent.
Parts. All appliances, parts, components, instruments, appurtenances,
accessories, furnishings and other equipment of whatever nature (other than
complete Engines or engines) which may from time to time be incorporated or
installed in or attached to the Airframe or any Engine or title to which
remains vested in the Lessor pursuant to Article 8 of the Lease.
Pass Through Agreement. The Pass Through Trust Agreement dated as of
May 1, 1997 between the Lessee and the Pass Through Trustee.
Pass Through Certificates. Any of the Pass Through Certificates,
1997-1-A, the Pass Through Certificates, 1997-1-B or the Pass Through
Certificates, 1997-1-C, in each case as issued by the related Pass Through
Trust; and "Pass Through Certificates" means all of the Pass Through
Certificates issued by each of the Pass Through Trusts.
Pass Through Closing Date. The Business Day on which the sale of the
Pass Through Certificates to the Underwriters pursuant to the Underwriting
Agreement takes place.
Pass Through Trust. The Federal Express Corporation 1997-1 Pass
Through Trust Class A, Federal Express Corporation 1997-1 Pass Through Trust
Class B and Federal Express Corporation 1997-1 Pass Through Trust Class C, in
each case formed pursuant to the related Series Supplement in accordance with
the Pass Through Agreement; and "Pass Through Trusts" means all of such Pass
Through Trusts.
Pass Through Trustee. First Security Bank, National Association, a
national banking association, in its capacity as Pass Through Trustee under
the Pass Through Agreement and each Pass Through Trust.
Past Due Rate. In respect of (A) any amount payable to the Owner
Participant or the Owner Trustee a rate per annum during the period from and
including the due date to but excluding the date on which such amount is paid
in full equal to 2% plus the Debt Rate and (B) any principal of or interest on
any Certificate or any other amount payable under the Indenture, any
Certificate or any other Operative Agreement that is not paid when due
(whether at Maturity, by acceleration, by optional or mandatory prepayment or
otherwise) to any Holder, the Indenture Trustee or the Pass Through Trustee, a
rate per annum during the period from and including the due date to but
excluding the date on which such amount is paid in full equal to (i) in the
case of any such amount payable to the Holder of any Certificate, 2% plus the
interest rate applicable to such Certificate and (ii) in the case of any other
such amount, 2% plus the Debt Rate.
Payment Date. Each January 15 and July 15 commencing on July 15,
1997.
Payment Default. Any event specified in Section 16.01(a) or 16.01(b)
of the Lease which with the giving of notice or lapse of time or both would
constitute an Event of Default.
Permitted Investments. Those investments enumerated in Section
23.01(a) (i), (ii), (iii) and (iv) of the Lease.
Person. Any individual, sole proprietorship, partnership, joint
venture, joint stock company, trust, unincorporated organization, association,
corporation, institution, entity or government (federal, state, local,
foreign or any agency, instrumentality, division or body thereof).
Preliminary Notice. Has the meaning specified in Section 4.01(a) of
the Lease.
Premium Termination Date. With respect to the Series A Certificates,
December 27, 2011, with respect to the Series B Certificates, February 5, 2010
and with respect to the Series C Certificates, March 22, 2007.
Prepayment Date. Has the meaning specified in Section 6.02(b) of the
Indenture.
Prepayment Price. Has the meaning specified in Section 6.02(b) of the
Indenture.
Principal Amount. With respect to a Certificate means the stated
original principal amount of such Certificate and, with respect to all
Certificates, means the aggregate stated original principal amounts of all
Certificates.
Property. Any right or interest in or to property of any kind
whatsoever, whether real, personal or mixed and whether tangible or intangible.
Proposed Termination Date. The proposed date of termination of the
Lease as specified by the Lessee in its notice given pursuant to Section 10.01
thereof.
Purchase Agreement. The Airbus A300-600R Freighter Purchase Agreement,
dated as of July 3, 1991 between AVSA and the Lessee, including all exhibits,
appendices and letter agreements attached thereto as originally executed or as
modified, amended or supplemented in accordance with the terms thereof, but
only to the extent that the foregoing relates to the Aircraft and to the
extent assigned pursuant to the Purchase Agreement Assignment.
Purchase Agreement Assignment. The Purchase Agreement Assignment
(Federal Express Corporation Trust No. N673FE), dated as of May 1, 1997 between
the Lessor and the Lessee.
Purchase Price. Has the meaning specified in Ancillary Agreement II.
Record Date. With respect to Payment Dates under the Indenture
(except a date for payment of defaulted interest), December 31 for January 15
Payment Dates and June 30 for July 15 Payment Dates, whether or not such date
is a Business Day.
Recourse Amount. Has the meaning specified in Section 17.10 of the
Participation Agreement.
Refinancing. A non-recourse loan to the Lessor arranged pursuant to
Section 15.01 of the Participation Agreement.
Register. Has the meaning set forth in Section 3.02 of the Indenture.
Registrar. Has the meaning set forth in Section 3.02 of the
Indenture.
Regulation D. Regulation D of the Board of Governors of the Federal
Reserve System (or any successor), as the same may be modified and
supplemented and in effect from time to time.
Related Indentures. Collectively, the Trust Indenture and Security
Agreement for each of Federal Express Corporation Trust Nos. N670FE, N671FE,
N672FE, N674FE, N583FE and N584FE, each dated as of May 1, 1997, between the
Owner Trustee and the Indenture Trustee, the Trust Indenture and Security
Agreement for Federal Express Corporation Trust No. N581FE, dated as of May 1,
1997, between Wilmington Trust Company, as owner trustee and the Indenture
Trustee, and the Trust Indenture and Security Agreement for Federal Express
Corporation Trust No. N587FE, dated as of December 1, 1996, as amended and
restated as of May 1, 1997, between Wilmington Trust Company, as owner trustee
and the Indenture Trustee.
Remaining Weighted Average Life. On a given date with respect to any
Certificate the number of days equal to the quotient obtained by dividing (i)
the sum of each of the products obtained by multiplying (a) the amount of each
then remaining scheduled payment of principal of such Certificate by (b) the
number of days from and including such prepayment date to but excluding the
dates on which each such payment of principal is scheduled to be made; by (ii)
the then outstanding principal amount of such Certificate.
Renewal Rent. The amount payable by the Lessee as rent in accordance
with Section 4.01 of the Lease during any Renewal Term.
Renewal Term. One or more terms with respect to which the Lessee has
exercised its option to renew the Lease pursuant to Section 4.01(a) thereof.
Rent. All payments due from the Lessee under the Lease as Basic Rent,
Renewal Rent and Supplemental Rent, collectively.
Rent Payment Date. December 11, 2020 and each January 15 and July 15
commencing on January 15, 1998.
Reoptimization Date. Has the meaning specified in Section 15.02(a)
of the Participation Agreement.
Replacement Aircraft. Any aircraft substituted for the Aircraft
pursuant to Section 11.03(a) of the Lease.
Replacement Airframe. Has the meaning set forth in Section 11.03 of
the Lease.
Replacement Engine. A General Electric CF6-80C2-A5F engine (or an
engine of the same or another manufacturer) of equal or greater value,
airworthiness, remaining useful life and utility as the Engine being replaced,
together with all Parts relating to such engine; provided, however, that if
such replacement engine is not a General Electric CF6-80C2-A5F engine, such
replacement engine must then be commonly used in the commercial aviation
industry on Airbus A300-600 airframes.
Responsible Officer. With respect to the Owner Trustee (except for
purposes of the Trust Agreement in which case the definition of Responsible
Officer set forth in Section 3.10 of the Trust Agreement is applicable) or the
Indenture Trustee, any officer in its Corporate Trust Administration, as the
case may be, designated by such Person to perform obligations under the
Operative Agreements, and with respect to any other party, any corporate
officer or (except in the case of the Owner Participant) other employee of a
party who, in the normal performance of his or her operational
responsibilities, with respect to the subject matter of any covenant,
agreement or obligation of such party pursuant to any Operative Agreement,
would have responsibility for and knowledge of such matter and the
requirements of any Operative Agreement with respect thereto.
S&P. Standard & Poor's Ratings Group.
Scheduled Delivery Date. The Delivery Date specified in the Delivery
Notice pursuant to Section 3.01 of the Participation Agreement.
SEC. The Securities and Exchange Commission of the United States and
any successor agencies or authorities.
Secured Obligations. Has the meaning specified in the Granting
Clause of the Indenture.
Securities Act. The Securities Act of 1933, as amended.
Series "A" or "Series A Certificates". Certificates issued and
designated as "Series A" under the Indenture, in the Principal Amount and
maturities and bearing interest as specified in Exhibit B to the Indenture
under the heading "Series A".
Series "B" or "Series B Certificates". Certificates issued and
designated as "Series B" under the Indenture, in the Principal Amount and
maturities and bearing interest as specified in Exhibit B to the Indenture
under the heading "Series B".
Series "C" or "Series C Certificates". Certificates issued and
designated as "Series C" under the Indenture, in the Principal Amount and
maturities and bearing interest as specified in Exhibit B to the Indenture
under the heading "Series C".
Series Supplement or Series Supplements. The Series Supplement
1997-1-A to be executed and delivered by the Lessee and the Pass Through
Trustee, the Series Supplement 1997-1-B to be executed and delivered by the
Lessee and the Pass Through Trustee or the Series Supplement 1997-1-C to be
executed and delivered by the Lessee and the Pass Through Trustee.
Sinking Fund Redemption Date. Has the meaning specified in Section
6.06 of the Indenture.
Sinking Fund Redemption Price. Has the meaning specified in Section
6.06 of the Indenture.
Special Aviation Counsel. Daugherty, Fowler & Peregrin.
Specified Investments. Shall mean (a) direct obligations of the
United States of America or obligations fully guaranteed by the United States
of America; (b) commercial paper rated A-1/P-1 by S&P and Moody's,
respectively or, if such ratings are unavailable, rated by any nationally
recognized rating organization in the United States equal to the highest
rating assigned by such rating organization; (c) investments in negotiable
certificates of deposit, time deposits, banker's acceptances, commercial paper
or other direct obligations of, or obligations guaranteed by, commercial banks
organized under the laws of the United States or of any political subdivision
thereof (or any U.S. branch of a foreign bank) with issuer ratings of at least
B/C by Thomson Bankwatch, having maturities no later than 90 days following
the date of such investment; (d) overnight federal funds transactions with
members of the Federal Reserve System arranged by federal funds brokers; or
(e) overnight repurchase agreements with respect to the securities described
in clause (a) above entered into with an office of a bank or trust company
which is located in the United States of America or any bank or trust company
which is organized under the laws of the United States or any state thereof
and has capital, surplus and undivided profits aggregating at least $500
million.
SSB. State Street Bank and Trust Company of Connecticut, National
Association, a national banking association.
Stipulated Loss Value. As of any Stipulated Loss Value Determination
Date during the Basic Term, the amount determined by multiplying the Purchase
Price by the percentage set forth in Schedule III of the Lease under the
heading "Stipulated Loss Value Factor" opposite such date (as such Schedule
III may be adjusted from time to time as provided in Section 3.04 of the
Lease), and during any Renewal Term, the amount determined pursuant to Section
4.01(b) of the Lease. Notwithstanding any other provisions of the Lease or
the Participation Agreement or the Indenture, each Stipulated Loss Value for
the Aircraft shall be, under any circumstances and in any event, an amount,
together with so much of the arrears portion of Basic Rent due and owing
through the date of payment of Stipulated Loss Value as does not constitute an
Excepted Payment, at least sufficient to pay in full as of such date of
payment the aggregate unpaid principal amount of and accrued interest on the
Certificates outstanding on such date of payment. Subject to the immediately
preceding sentence, it is understood and agreed that the amounts set forth on
Schedule III of the Lease, for dates other than Rent Payment Dates on which
arrears Basic Rent is due, fully reflect appropriate Basic Rent accruals and
credits of unearned Basic Rent through such date and, accordingly, no further
accrual or credit shall be required through such date whenever Stipulated Loss
Value is to be calculated with reference to any such date; provided that if
amounts in respect of Stipulated Loss Value are payable under the Operative
Agreements after the Stipulated Loss Determination Date in respect of which
such Stipulated Loss Value was determined, the Lessor shall be compensated
during the period from the Stipulated Loss Determination Date to such payment
date in accordance with the provisions of the Operative Agreements.
Stipulated Loss Value Determination Date. Each date set forth on
Schedule III of the Lease.
Subordination Agent. First Security Bank, National Association, a
national banking association, not in its individual capacity but solely as
Subordination Agent.
Supplemental Rent. (a) All amounts, liabilities and obligations
which the Lessee assumes or agrees to perform or pay under the Lease or under
the Participation Agreement or Tax Indemnity Agreement or any Ancillary
Agreement or any other Operative Agreement to the Lessor, the Owner
Participant, the Indenture Trustee, the Subordination Agent, any Liquidity
Provider or others, including, without limitation, payments of Stipulated Loss
Value, FPO Price and amounts calculated by reference to Termination Value, any
amounts of Make-Whole Premium payable under the Indenture to the extent
provided in Section 3.03 of the Lease, and all amounts required to be paid by
Lessee under the agreements, covenants and indemnities contained in the Lease
or in the Participation Agreement or the Tax Indemnity Agreement or any other
Operative Agreement, but excluding Basic Rent and (b) all amounts that the
Owner Trustee is obligated to pay in accordance with clause (b) of the last
paragraph of Section 2.04 of the Indenture.
Tax. Has the meaning set forth in Section 8.01(a) of the
Participation Agreement.
Tax Indemnity Agreement. The Tax Indemnity Agreement (Federal
Express Corporation Trust No. N673FE), dated as of May 1, 1997, between the
Lessee and the Owner Participant.
Term. The Basic Term of the lease for the Aircraft under the Lease
and, if renewed pursuant to Section 4.01 of the Lease, each Renewal Term for
the Aircraft for which the Lease is renewed, or such earlier date on which the
Lease is terminated pursuant to its terms.
Termination Date. A Rent Payment Date during the Basic Term that is
on or after December 31, 2004 in the case of Article 10 of the Lease, and in
the case of (i) Section 4.02(a)(A) of the Lease, the Rent Payment Date falling
on January 15, 2016, (ii) Section 4.02(a)(D) or (E) of the Lease, a Rent
Payment Date that is on or after the seventh anniversary of the Delivery Date
and (iii) Section 4.02(a)(F) of the Lease, the last day of the Basic Term.
Termination Value. As of any Termination Date, the amount determined
by multiplying the Purchase Price by the percentage set forth in Schedule IV
of the Lease under the heading "Termination Value Factor" opposite such
Termination Date (as such Schedule IV may be adjusted from time to time as
provided in Section 3.04 of the Lease). Notwithstanding any other provisions
of the Lease, the Participation Agreement or the Indenture, each Termination
Value shall be, under any circumstances and in any event, an amount, together
with so much of the arrears portion of Basic Rent due and owing through the
date of payment of any amount calculated by reference to Termination Value as
does not constitute an Excepted Payment, at least sufficient to pay in full as
of such date of payment the aggregate unpaid principal amount of and accrued
interest on the Certificates outstanding on such date of payment. Subject to
the immediately preceding sentence, it is understood and agreed that the
amounts set forth on Schedule IV of the Lease, for dates other than Rent
Payment Dates on which arrears Basic Rent is due, fully reflect appropriate
Basic Rent accruals and credits of unearned Basic Rent through such date and,
accordingly, no further accrual or credit shall be required through such date
whenever Termination Value is to be calculated with reference to any such
date; provided that if amounts in respect of Termination Value are payable
under the Operative Agreements after the Termination Date in respect of which
such Termination Value was determined, the Lessor shall be compensated during
the period from the Termination Date to such payment date in accordance with
the provisions of the Operative Agreements.
Transaction Costs. Those costs and expenses set forth in Section
10.01(a) of the Participation Agreement.
Transportation Code. Title 49 of the United States Code, as amended
and in effect on the date of the Lease or as subsequently amended, or any
successor or substituted legislation at the time in effect and applicable, and
the regulations promulgated pursuant thereto.
Treasury Yield. At the time of determination with respect to any
Certificate, the interest rate (expressed as a semi-annual equivalent and as a
decimal and, in the case of United States Treasury bills, converted to a bond
equivalent yield) determined to be the per annum rate equal to the semi-annual
yield to maturity for United States Treasury securities maturing on the
Average Life Date on such Certificate and trading in the public securities
markets either as determined by interpolation between the most recent weekly
average yield to maturity for two series of United States Treasury securities,
trading in public securities markets, (i) one maturing as close as possible to,
but earlier than, the Average Life Date of such Certificate and (ii) the other
maturing as close as possible to, but later than, the Average Life Date of
such Certificate. In each case as published in the most recent H.15(519) or,
if a weekly average yield to maturity for United States Treasury securities
maturing on the Average Life Date of such Certificate is reported on the most
recent H.15 (519), such weekly average yield to maturity as published in such
H.15(919). "H.15(519)" means the weekly statistical release designated as
such, or any successor publication, published by the Board of Governors of the
Federal Reserve System. The date of determination of a Make-Whole Premium
will be the third Business Day prior to the applicable prepayment date and the
"most recent H.15(519)" means the H.15(519) published prior to the close of
business on the third Business Day prior to the applicable prepayment date.
Trust Agreement. The Trust Agreement (Federal Express Corporation
Trust No. N673FE), dated as of May 1, 1997, between the Owner Participant and
the Owner Trustee in its individual capacity.
Trust Estate. The Lessor's Estate.
Trust Indenture Act. The Trust Indenture Act of 1939, as amended.
Trust Indenture Estate. All estate, right, title and interest of the
Indenture Trustee in and to any of the property, rights, interests and
privileges granted to the Indenture Trustee pursuant to the Granting Clause of
the Indenture, other than Excepted Payments and any and all other rights of
the Owner Trustee or the Owner Participant expressly reserved to the Owner
Trustee or the Owner Participant pursuant to the Indenture.
Underwriters. Morgan Stanley & Co. Incorporated, First Chicago
Capital Markets, Inc., Goldman, Sachs & Co. and J.P. Morgan & Co.
Underwriting Agreement. The Underwriting Agreement dated May 22, 1997
among the Lessee and the Underwriters.
United States, U.S. or US. The United States of America.
U.S. Air Carrier. Any United States air carrier as to which there is
in force a certificate issued pursuant to Section 41102(a) or Section 41103 of
the Transportation Code, and as to which there is in force an air carrier
operating certificate issued pursuant to Chapter 447 of the Transportation
Code and Part 121 of the regulations under such Transportation Code, for
aircraft capable of carrying ten (10) or more individuals or 6,000 pounds or
more of cargo, or which may operate as an air carrier by certification or
otherwise under any successor or substitute provision thereof or in absence
thereof.
U.S. Person. A Person described in Section 7701(a)(30) of the Code.
- ------------------------------------------------------------------------------
TRUST INDENTURE AND SECURITY AGREEMENT
(Federal Express Corporation Trust No. N674FE)
Dated as of May 1, 1997
between
STATE STREET BANK AND TRUST COMPANY OF CONNECTICUT,
NATIONAL ASSOCIATION,
Not in its Individual
Capacity, but solely
As Owner Trustee,
Owner Trustee
and
FIRST SECURITY BANK, NATIONAL ASSOCIATION,
Not in its Individual
Capacity, but solely
As Indenture Trustee,
Indenture Trustee
COVERING ONE AIRBUS A300F4-605R AIRCRAFT
SERIAL NO. 781, REGISTRATION NO. N674FE
==============================================================================
TABLE OF CONTENTS
Page
Initial Recitals......................................................... 1
Granting Clause.......................................................... 2
Habendum Clause.......................................................... 6
ARTICLE I
DEFINITIONS
Section 1.01. Definitions.............................................. 8
ARTICLE II
ISSUE, EXECUTION, FORM AND
REGISTRATION OF CERTIFICATES;
COLLATERAL ACCOUNT
Section 2.01. Authentication and Delivery of Certificates.............. 8
Section 2.02. Execution of Certificates................................ 9
Section 2.03. Certificate of Authentication............................ 9
Section 2.04. Form and Terms of Certificates; Payments of Principal,
Make-Whole Premium and Interest.......................... 9
Section 2.05. Payments from Trust Indenture Estate Only................ 12
Section 2.06. Registration, Transfer and Exchange...................... 13
Section 2.07. Mutilated, Defaced, Destroyed, Lost and Stolen
Certificates............................................. 14
Section 2.08. Cancellation of Certificates; Destruction Thereof........ 15
Section 2.09. Temporary Certificates................................... 15
Section 2.10. Termination of Interest in Trust Indenture Estate........ 16
Section 2.11. Certificates in Respect of Replacement Aircraft.......... 16
Section 2.12. Assumption of Obligations Under Certificates and Other
Operative Agreements..................................... 16
Section 2.13. Establishment of Collateral Account...................... 16
Section 2.14. Investment of Funds on Deposit in the Collateral Account. 17
Section 2.15. Release of Debt Portion and Lien on the Collateral Account
and the Liquid Collateral on Delivery Date............... 18
Section 2.16. Cut-Off Date............................................. 19
Section 2.17. Subordination............................................ 19
ARTICLE III
COVENANTS
Section 3.01. Payment of Principal, Make-Whole Premium and Interest.... 19
Section 3.02. Offices for Payments, etc................................ 20
Section 3.03. Appointment to Fill a Vacancy in Office of Indenture
Trustee.................................................. 20
Section 3.04. Paying Agents............................................ 20
Section 3.05. Covenants of SSB and the Owner Trustee................... 21
Section 3.06. [Reserved]............................................... 21
Section 3.07. Disposal of Trust Indenture Estate....................... 22
Section 3.08. No Representations or Warranties as to Aircraft or
Documents................................................ 22
Section 3.09. Further Assurances; Financing Statements................. 22
ARTICLE IV
HOLDER LISTS
Section 4.01. Holder Lists; Ownership of Certificates.................. 23
ARTICLE V
RECEIPT, DISTRIBUTION AND APPLICATION OF
INCOME FROM THE TRUST INDENTURE ESTATE
Section 5.01. Basic Rent Distribution.................................. 23
Section 5.02. Event of Loss and Replacement; Prepayment................ 24
Section 5.03. Payment After Indenture Event of Default, etc............ 25
Section 5.04. Certain Payments......................................... 27
Section 5.05. Other Payments........................................... 28
Section 5.06. Payments to Owner Trustee................................ 28
Section 5.07. Application of Payments.................................. 28
Section 5.08. Investment of Amounts Held by Indenture Trustee.......... 29
Section 5.09. Withholding Taxes........................................ 30
ARTICLE VI
PREPAYMENT OF CERTIFICATES
Section 6.01. No Prepayment Prior to Maturity.......................... 30
Section 6.02. Prepayment of Certificates............................... 30
Section 6.03. Notice of Prepayment to Holders.......................... 32
Section 6.04. Deposit of Prepayment Price and Sinking Fund Redemption
Price.................................................... 33
Section 6.05. Certificates Payable on Prepayment Date.................. 33
Section 6.06. Mandatory Sinking Fund Redemption........................ 33
ARTICLE VII
INDENTURE EVENTS OF DEFAULT; REMEDIES
OF INDENTURE TRUSTEE AND HOLDERS
Section 7.01. Indenture Event of Default............................... 35
Section 7.02. Remedies................................................. 38
Section 7.03. Return of Aircraft, etc.................................. 40
Section 7.04. Indenture Trustee May Prove Debt......................... 42
Section 7.05. Remedies Cumulative...................................... 44
Section 7.06. Suits for Enforcement.................................... 44
Section 7.07. Discontinuance of Proceedings............................ 45
Section 7.08. Limitations on Suits by Holders.......................... 45
Section 7.09. Unconditional Right of Holders to Receive Principal,
Interest and Make-Whole Premium, and to Institute
Certain Suits............................................ 45
Section 7.10. Control by Holders....................................... 46
Section 7.11. Waiver of Past Indenture Default......................... 46
Section 7.12. Notice of Indenture Default.............................. 47
ARTICLE VIII
RIGHTS OF THE OWNER TRUSTEE
AND THE OWNER PARTICIPANT
Section 8.01. Certain Rights of Owner Trustee and Owner Participant.... 47
Section 8.02. Owner Participant's Right to Elect to Prepay or Purchase the
Certificates............................................. 50
Section 8.03. Certain Rights of Owner Participant...................... 52
ARTICLE IX
CONCERNING THE INDENTURE TRUSTEE
Section 9.01. Acceptance of Trusts..................................... 53
Section 9.02. Duties and Responsibilities of the Indenture Trustee;
During an Indenture Event of Default; Prior to an
Indenture Event of Default............................... 54
Section 9.03. Certain Rights of the Indenture Trustee.................. 56
Section 9.04. Indenture Trustee Not Responsible for Recitals, Disposition
of Certificates or Application of Proceeds Thereof....... 57
Section 9.05. Indenture Trustee and Agents May Hold Certificates;
Collections, etc......................................... 57
Section 9.06. Moneys Held by Indenture Trustee......................... 57
Section 9.07. Right of Indenture Trustee to Rely on Officer's
Certificate, etc......................................... 57
Section 9.08. Replacement Airframes and Replacement Engines............ 58
Section 9.09. Indenture and Security Agreement Supplement for
Replacements............................................. 61
Section 9.10. Effect of Replacement.................................... 61
Section 9.11. Compensation............................................. 61
ARTICLE X
CONCERNING THE HOLDERS
Section 10.01. Evidence of Action Taken by Holders..................... 62
Section 10.02. Proof of Execution of Instruments and of Holding of
Certificates............................................ 62
Section 10.03. Holders to Be Treated as Owners......................... 63
Section 10.04. Certificates Owned by Owner Trustee and the Lessee Deemed
Not Outstanding......................................... 63
Section 10.05. Right of Revocation of Action Taken..................... 64
Section 10.06. ERISA................................................... 64
ARTICLE XI
INDEMNIFICATION OF INDENTURE
TRUSTEE BY OWNER TRUSTEE
ARTICLE XII
SUCCESSOR TRUSTEES
Section 12.01. Notice of Successor Owner Trustee....................... 66
Section 12.02. Resignation and Removal of Indenture Trustee;
Appointment of Successor................................ 66
Section 12.03. Persons Eligible for Appointment as Indenture Trustee... 67
Section 12.04. Acceptance of Appointment by Successor Trustee.......... 67
Section 12.05. Merger, Conversion, Consolidation or Succession to Business
of Indenture Trustee.................................... 68
Section 12.06. Appointment of Separate Trustees........................ 69
ARTICLE XIII
SUPPLEMENTS AND AMENDMENTS TO THIS
TRUST INDENTURE AND OTHER DOCUMENTS
Section 13.01. Supplemental Indentures Without Consent of Holders...... 71
Section 13.02. Supplemental Indentures With Consent of Holders......... 72
Section 13.03. Effect of Supplemental Indenture........................ 74
Section 13.04. Documents to Be Given to Indenture Trustee.............. 74
Section 13.05. Notation on Certificates in Respect of Supplemental
Indentures.............................................. 74
Section 13.06. No Request Necessary for Lease Supplement or Indenture and
Security Agreement Supplement........................... 74
Section 13.07. Notices to Liquidity Providers.......................... 74
ARTICLE XIV
SATISFACTION AND DISCHARGE OF INDENTURE;
UNCLAIMED MONEYS
Section 14.01. Satisfaction and Discharge of Indenture; Termination of
Indenture............................................... 75
Section 14.02. Application by Indenture Trustee of Funds Deposited for
Payment of Certificates................................. 76
Section 14.03. Repayment of Moneys Held by Paying Agent................ 76
Section 14.04. Transfer of Moneys Held by Indenture Trustee and Paying
Agent Unclaimed for Two Years and Eleven Months......... 76
ARTICLE XV
MISCELLANEOUS
Section 15.01. Capacity in Which Acting................................ 77
Section 15.02. No Legal Title to Trust Indenture Estate in Holders..... 77
Section 15.03. Sale of Trust Indenture Estate by Indenture Trustee is
Binding................................................. 77
Section 15.04. Indenture for Benefit of Owner Trustee, Indenture Trustee,
Owner Participant, Holders and Liquidity Providers...... 77
Section 15.05. No Action Contrary to the Lessee's Rights Under the
Lease................................................... 78
Section 15.06. Notices................................................. 78
Section 15.07. Officer's Certificates and Opinions of Counsel; Statements
to Be Contained Therein................................. 79
Section 15.08. Severability............................................ 80
Section 15.09. No Oral Modifications or Continuing Waivers............. 80
Section 15.10. Successors and Assigns.................................. 80
Section 15.11. Headings................................................ 80
Section 15.12. Normal Commercial Relations............................. 80
Section 15.13. Governing Law; Counterparts............................. 80
Exhibit A -- Form of Indenture and Security Agreement Supplement
Exhibit B -- Form of Certificate
Schedule I -- [Reserved]
Schedule II -- Definitions
TRUST INDENTURE AND SECURITY AGREEMENT
(FEDERAL EXPRESS CORPORATION TRUST NO. N674FE)
TRUST INDENTURE AND SECURITY AGREEMENT (FEDERAL EXPRESS CORPORATION
TRUST NO. N674FE) dated as of May 1, 1997 (the "Indenture"), between STATE
STREET BANK AND TRUST COMPANY OF CONNECTICUT, NATIONAL ASSOCIATION, a national
banking association, not in its individual capacity, except as otherwise
specifically set forth herein (when acting in such individual capacity,
"SSB"), but solely as owner trustee (the "Owner Trustee") under the Trust
Agreement, as defined herein, and FIRST SECURITY BANK, NATIONAL ASSOCIATION, a
national banking association, as Indenture Trustee hereunder (the "Indenture
Trustee").
W I T N E S S E T H:
-------------------
WHEREAS, capitalized terms used herein shall have the respective
meanings set forth or referred to in Article I hereof;
WHEREAS, the Owner Participant and SSB have, immediately prior to the
execution and delivery of this Indenture, entered into a Trust Agreement
(Federal Express Corporation Trust No. N674FE) dated as of the date hereof (as
amended or otherwise modified from time to time in accordance with the
provisions thereof and of the Participation Agreement, the "Trust Agreement"),
whereby, among other things, SSB has declared a certain trust for the use and
benefit of the Owner Participant, subject, however, to the Lien of this
Indenture for the use and benefit of, and with the priority of payment to, the
holders of the Certificates issued hereunder, and the Owner Trustee is
authorized and directed to execute and deliver this Indenture;
WHEREAS, the Owner Trustee desires by this Indenture, among other
things (i) to provide for the issuance by the Owner Trustee of Certificates as
provided in the Participation Agreement, and (ii) to provide for the
assignment, mortgage and pledge by the Owner Trustee to the Indenture Trustee,
as part of the Trust Indenture Estate hereunder of the Owner Trustee's right,
title and interest in the Liquid Collateral and after the Delivery Date for
the assignment, mortgage and pledge by the Owner Trustee to the Indenture
Trustee, as part of the Trust Indenture Estate hereunder, of among other
things, certain of the Owner Trustee's estate, right, title and interest in
and to the Aircraft and the Indenture Documents and certain payments and other
amounts (other than Excepted Payments) received hereunder or thereunder in
accordance with the terms hereof, as security for, among other things, the
Owner Trustee's obligations to the Certificate Holders and for the benefit and
security of such Holders;
WHEREAS, all things have been done to make the Certificates, when
executed by the Owner Trustee, and authenticated, issued and delivered
hereunder, the valid obligations of the Owner Trustee; and
WHEREAS, all things necessary to make this Indenture the valid,
binding and legal obligation of the Owner Trustee, enforceable in accordance
with its terms, have been done and performed and have happened.
NOW, THEREFORE, the parties agree as follows:
GRANTING CLAUSE
NOW, THEREFORE, in consideration of the mutual promises contained
herein and to secure (i) the prompt payment of the principal of and Make-Whole
Premium, if any, and interest on, and all other amounts due with respect to,
all the Certificates from time to time outstanding under this Indenture and
all other amounts due hereunder and (ii) the performance and observance by the
Owner Trustee of all the agreements, covenants and provisions in this
Indenture, in the Certificates, in the Participation Agreement and in the
Lease contained for the benefit of the Holders of the Certificates, and the
prompt payment of any and all amounts from time to time owing under the
Participation Agreement by the Owner Trustee, the Owner Participant or the
Lessee to the Holders (collectively the "Secured Obligations") and for the uses
and purposes and subject to the terms and provisions of this Indenture, and in
consideration of the premises and of the covenants in this Indenture and in the
Certificates and of the purchase of the Certificates by their Holders, and of
the sum of $1 paid to the Owner Trustee by the Indenture Trustee at or before
the delivery of this Indenture, the receipt and sufficiency of which is hereby
acknowledged, the Owner Trustee has granted, bargained, sold, assigned,
transferred, conveyed, mortgaged, pledged, granted a first priority security
interest in and confirmed, and does hereby grant, bargain, sell, assign,
transfer, convey, mortgage, pledge and grant a first priority security
interest in and confirm to the Indenture Trustee, its successors and assigns,
in trust for the equal and ratable security and benefit of the Holders from
time to time of the Certificates, a first priority security interest in and
first mortgage Lien on all estate, right, title and interest of the Owner
Trustee in, to and under the following described property, rights and
privileges other than Excepted Payments, which collectively, excluding
Excepted Payments but including all property specifically subjected to the
Lien of this Indenture by the terms hereof, by any Indenture and Security
Agreement Supplement or any mortgage supplemental to this Indenture, are
included within the Trust Indenture Estate, subject always to the rights
granted to the Owner Trustee or the Owner Participant hereunder and to the
other terms and conditions of this Indenture:
(1) The Airframe, as the same is more particularly described in the
Indenture and Security Agreement Supplement and any airframe substituted in
replacement thereof pursuant to the provisions of this Indenture; the Engines,
as the same are more particularly described in the Indenture and Security
Agreement Supplement, whether or not such Engines shall be installed in or
attached to the Airframe or any other airframe, and any Replacement Engine
therefor; and all Parts in respect of the Airframe and the Engines and all
records, logs and other documents at any time maintained with respect to the
foregoing property;
(2) The Lease and all Rent thereunder, including, without limitation,
all amounts of Basic Rent and Supplemental Rent, and payments of any kind
thereunder and including all rights of the Owner Trustee to execute any
election or option or to give or receive any notice, consent, waiver or
approval under or in respect of the Lease or to accept any surrender of the
Aircraft or any part thereof as well as any rights, powers or remedies on the
part of the Owner Trustee, whether arising under the Lease or by statute or at
law or in equity or otherwise arising out of any Event of Default;
(3) The Purchase Agreement, the Purchase Agreement Assignment, the
AVSA Consent and Agreement, the Consent and Agreement, the Consent and
Guaranty, the GTA, the Engine Warranty Assignment and the Engine Consent,
AVSA's FAA Bill of Sale, AVSA's Warranty Bill of Sale, the Airbus Guaranty,
the Ancillary Agreements and the Participation Agreement (to the extent of
amounts payable to the Owner Trustee thereunder) (collectively, and together
with the Lease, the Trust Agreement and the Certificates, the "Indenture
Documents"), including all rights of the Owner Trustee to execute any election
or option or to give or receive any notice, consent, waiver or approval under
or in respect of any of the foregoing documents and instruments;
(4) All the tolls, rents, issues, profits, products, revenues and
other income (including sales proceeds) of the property subjected or required
to be subjected to the Lien of this Indenture, and all of the estate, right,
title and interest of the Owner Trustee in and to the same and every part of
said property;
(5) The Collateral Account, the Liquid Collateral and all other
moneys and securities (including Permitted Investments) now or hereafter paid
or deposited or required to be paid or deposited to or with the Indenture
Trustee by or for the account of the Owner Trustee pursuant to any term of any
Operative Agreement, except the Tax Indemnity Agreement, and held or required
to be held by the Indenture Trustee hereunder;
(6) All requisition proceeds with respect to the Aircraft or any part
thereof (to the extent of the Owner Trustee's interest therein pursuant to the
terms of the Lease) and all insurance proceeds with respect to the Aircraft or
any part thereof from insurance required to be maintained by the Lessee under
Article 13 of the Lease, but excluding any insurance maintained by the Lessee
and not required under Article 13 of the Lease; and
(7) All proceeds of the foregoing.
EXCLUDING, HOWEVER, from the foregoing grant of the Lien and security
interest of this Indenture and from the Trust Indenture Estate, (i) all
Excepted Payments, including without limitation all right, title and interest
of the Owner Participant in, to and under the Tax Indemnity Agreement and any
moneys due or to become due under the Tax Indemnity Agreement and all rights
to collect and enforce Excepted Payments and (ii) rights granted to or
retained by the Owner Trustee or the Owner Participant hereunder and SUBJECT
TO the following provisions:
(a) (i) whether or not an Indenture Event of Default shall occur and
be continuing, the Owner Trustee and the Owner Participant shall at all times
retain the right, to the exclusion of the Indenture Trustee, (A) to Excepted
Payments and to commence an action at law to obtain or otherwise demand, sue
for or receive and enforce the payment of such Excepted Payments, (B) to
exercise any election or option or make any decision or determination or to
give or receive any notice (including notice of Default), consent, waiver or
approval in respect of any such Excepted Payment, (C) to adjust (and make any
decision or determination or give any notice or consent with respect to) Basic
Rent and the percentages relating to Stipulated Loss Value and Termination
Value and the FPO Price as provided in Section 3.04 of the Lease and Section
15.01 of the Participation Agreement, (D) to exercise any election or option to
make any decision or determination, or to give or receive any notice, consent,
waiver or approval, or to take any other action in respect of, but in each
case only to the extent relating to, Excepted Payments (except for, in respect
of any portion of Basic Rent constituting an Excepted Payment, any action
changing the manner by which such Basic Rent is to be paid), (E) to retain the
rights of the "Lessor" with respect to solicitations of bids, and the election
to retain the Aircraft pursuant to Article 10 of the Lease, (F) to retain the
right of "Lessor" to determine the Fair Market Rental or Fair Market Value
pursuant to Article 4 of the Lease, (G) to exercise all other rights of the
Lessor under Articles 4 and 10 of the Lease with respect to the retention or
purchase by the Lessee or the Lessor of the Aircraft or the exercise by the
Lessee of the Lessee's renewal or purchase options, (H) to retain all rights
with respect to insurance maintained for its own account which Section 13.05
of the Lease specifically confers on the "Lessor", (I) to approve appraisers,
lawyers and other professionals and receive notices, certificates, reports,
filings, opinions and other documents, in each case with respect to matters
relating to the Owner Participant's tax position, (J) to approve any
accountants to be used in the verification of any Rent adjustment, and (K) to
exercise, to the extent necessary to enable it to exercise its rights under
Section 8.03 hereof, the rights of the "Lessor" under Section 17.04 of the
Lease;
(ii) whether or not an Indenture Event of Default shall occur and be
continuing, the Owner Trustee and the Indenture Trustee shall each have the
rights separately but not to the exclusion of the other (agreement of both
required in the case of clause (E) below), (A) to receive from the Lessee all
notices, certificates, reports, filings, opinions of counsel, copies of all
documents and all information which the Lessee is permitted or required to
give or furnish to the "Lessor" pursuant to the Lease or to the Owner Trustee
pursuant to any other Operative Agreement, (B) to exercise inspection rights
pursuant to Section 14.01 of the Lease (provided that if an Indenture Event of
Default shall be continuing, no inspection right of the Owner Trustee shall
interfere with the efforts of the Indenture Trustee to exercise remedies under
the Lease or this Indenture), (C) to maintain separate insurance pursuant to
Section 13.05 of the Lease and to retain all rights with respect to such
insurance maintained for its own account, (D) to give any notice of default
under Section 16.01 of the Lease and (E) the right to consent to changes to
the list of countries on Schedule III to the Participation Agreement;
(iii) subject to the last sentence of this clause (a), (A) so long as
no Indenture Event of Default not constituting an Event of Default shall have
occurred and be continuing (but subject to the provisions of Section 8.01
hereof), the Owner Trustee shall retain the right, to the exclusion of the
Indenture Trustee (or, if an Indenture Event of Default that is also an Event
of Default shall have occurred and be continuing, acting jointly with and not
to the exclusion of the Indenture Trustee), to exercise all rights, elections
and options of the Lessor in connection with the return of the Aircraft under
Article 12 of the Lease (but not Article 17 thereof, it being understood that
the Indenture Trustee shall have the exclusive right to exercise remedies
pursuant to such Article 17, including in respect of any related return of the
Aircraft pursuant to Article 12 of the Lease), including the right to approve
as satisfactory any accountants, engineers, appraisers or counsel to render
services for or issue appraisals, reports, certificates or opinions to the
Owner Trustee and to exercise all rights, elections and options of the Lessor
in connection with the return of the Aircraft pursuant to the express
provisions of the Operative Agreements, and (B) so long as no Indenture Event
of Default not constituting an Event of Default shall have occurred and be
continuing (but subject to the provisions of Section 8.01 hereof), the Owner
Trustee shall retain the right, jointly with the Indenture Trustee (agreement
of both not being required), to further assurances and financial information
from the Lessee pursuant to Section 19.01 of the Lease (other than the right
to receive any funds to be delivered to the "Lessor" under the Lease (except
funds delivered with respect to Excepted Payments) and under the Purchase
Agreement;
(iv) subject to the last sentence of this clause (a), at all times
the Owner Trustee shall have the right as Lessor, but not to the exclusion of
the Indenture Trustee, to seek specific performance of the covenants of the
Lessee under the Lease relating to the protection, insurance, maintenance,
possession and use of the Aircraft; and
(v) at all times the Owner Trustee and the Owner Participant shall
have the rights granted to them under Articles VI, VIII and X and Section 7.02
hereof.
Notwithstanding the foregoing, but subject always to the provisions of Section
15.05 hereof, the Indenture Trustee shall at all times have the right, to the
exclusion of the Owner Trustee and the Owner Participant, to (A) (other than
with respect to Excepted Payments) declare the Lease to be in default under
Article 17 thereof or any statute (including, without limitation, Article 2-A
of the Uniform Commercial Code) and (B) subject only to the provisions of this
Indenture, (other than in connection with Excepted Payments) exercise the
remedies set forth in such Article 17 of the Lease any statute (including
without limitation Article 2-A of the Uniform Commercial Code), at law and in
Article 7 hereof.
(b) The foregoing provisions in paragraph (a) above shall be equally
applicable to all rights of the Indenture Trustee in respect of Ancillary
Agreement I and Ancillary Agreement II, whether such rights are granted
directly to the Indenture Trustee under such agreements or are granted under
the Granting Clause of this Indenture.
(c) The leasehold interest granted to the Lessee by the Lease shall
not be subject to the security interest granted by this Indenture, and nothing
in this Indenture shall affect the rights of the Lessee under the Lease so
long as no Event of Default has occurred and is continuing.
HABENDUM CLAUSE
TO HAVE AND TO HOLD the aforesaid property unto the Indenture Trustee,
its successors and assigns, in trust for the equal and ratable benefit and
security of the Holders from time to time of the Certificates, without any
priority of any one Certificate over any other and for the uses and purposes
and subject to the terms and conditions set forth in this Indenture and the
rights of the Owner Trustee and the Owner Participant under this Indenture.
It is expressly agreed that anything contained in this Indenture to
the contrary notwithstanding, the Owner Trustee shall remain liable under the
Indenture Documents to perform all of the obligations assumed by it under any
of those documents, all in accordance with and pursuant to the terms and
provisions of those documents, and the Indenture Trustee and the Holders of
the Certificates shall have no obligation or liability under the Indenture
Documents by reason of or arising out of the assignment under this Indenture,
nor shall the Indenture Trustee or the Holders of the Certificates be required
or obligated in any manner to perform or fulfill any obligations of the Owner
Trustee under or pursuant to the Indenture Documents or, except as expressly
provided in this Indenture, to make any payment, or to make any inquiry as to
the nature or sufficiency of any payment received by it, or present or file
any claim, or take any action to collect or enforce the payment of any amounts
which may have been assigned to it or to which it may be entitled at any time
or times.
Effective upon the occurrence and continuance of an Indenture Event of
Default, the Owner Trustee hereby constitutes the Indenture Trustee the true
and lawful attorney of the Owner Trustee, irrevocably, with full power (in the
name of the Owner Trustee or otherwise), subject to the terms and conditions
of this Indenture, to ask, require, demand, receive, compound and give
acquittance for any and all Basic Rent, Supplemental Rent payable to the Owner
Trustee, Stipulated Loss Value and Termination Value payments, insurance
proceeds and any and all moneys and claims for moneys due and to become due
under or arising out of the Lease (subject to Section 8.01 hereof) or the
other Indenture Documents (other than Excepted Payments), to endorse any
checks or other instruments or orders in connection with the same and to file
any claims, take any action or institute any proceeding which the Indenture
Trustee may deem to be necessary or advisable in the premises.
Under the Lease the Lessee is directed to make all payments of Rent
(other than Excepted Payments not constituting Basic Rent) payable to the
Owner Trustee and all other amounts (other than Excepted Payments not
constituting Basic Rent) which are required to be paid to or deposited with
the Owner Trustee pursuant to the Lease directly to the Indenture Trustee at
such address in the United States of America as the Indenture Trustee shall
specify for application as provided in this Indenture. The Owner Trustee
agrees that if, notwithstanding such provision, it shall have received any
such amounts, promptly on receipt of any such payment, it will transfer to the
Indenture Trustee any and all moneys from time to time received by the Owner
Trustee constituting part of the Trust Indenture Estate for distribution by
the Indenture Trustee pursuant to this Indenture, except that the Owner
Trustee shall accept for distribution pursuant to the Trust Agreement (i) any
amounts distributed to it by the Indenture Trustee under this Indenture, and
(ii) any Excepted Payments not constituting Basic Rent.
The Owner Trustee agrees that at any time and from time to time, upon
the written request of the Indenture Trustee, the Owner Trustee will, at the
expense of the Lessee, promptly and duly execute and deliver or cause to be
duly executed and delivered any and all such further instruments and documents
as the Indenture Trustee may reasonably deem desirable in obtaining the full
benefits of the assignment hereunder and of the rights and powers herein
granted; provided, however, that the Owner Trustee shall have no obligation to
execute and deliver or cause to be executed or delivered to the Indenture
Trustee any such instrument or document if such execution and delivery would
result in the imposition of additional liabilities on the Owner Trustee or the
Owner Participant or would result in a burden on the Owner Participant's
business activities, unless the Owner Trustee or the Owner Participant, as the
case may be, is indemnified to its reasonable satisfaction against any losses,
liabilities and expenses incurred in connection with such execution and
delivery.
The Owner Trustee does hereby warrant and represent that it has not
assigned, pledged or otherwise disposed of, and hereby covenants that it will
not assign or pledge or otherwise dispose of, so long as the assignment
hereunder shall remain in effect and shall not have been terminated pursuant
to Section 14.01 hereof, any of its right, title or interest hereby assigned,
to anyone other than the Indenture Trustee, and that it will not, except in
respect of Excepted Payments or otherwise as provided in or permitted by this
Indenture, enter into an agreement amending or supplementing any of the
Indenture Documents, settle or compromise any claim (other than claims in
respect of Excepted Payments) against the Lessee arising under any of the
Indenture Documents, or submit or consent to the submission of any dispute,
difference or other matter arising under or in respect of any of the Indenture
Documents, to arbitration thereunder.
Concurrently with the delivery of this Indenture, the Owner Trustee
has delivered to the Indenture Trustee executed counterparts of the Trust
Agreement and the chattel paper original counterpart of the Lease.
It is hereby further covenanted and agreed by and between the parties
as follows:
ARTICLE I
DEFINITIONS
Section 1.01. Definitions. Unless the context otherwise requires,
capitalized terms utilized herein shall have the meanings set forth in
Schedule II hereto for all purposes of this Indenture and shall be equally
applicable to both the singular and plural forms of the terms defined.
ARTICLE II
ISSUE, EXECUTION, FORM AND
REGISTRATION OF CERTIFICATES;
COLLATERAL ACCOUNT
Section 2.01. Authentication and Delivery of Certificates.
Forthwith upon the execution and delivery of this Indenture, and from time to
time thereafter, Certificates in an aggregate principal amount not in excess
of the amount specified in Section 2.04 hereof (except as otherwise provided
in Sections 2.06 and 2.07 hereof) shall be executed by the Owner Trustee and
delivered to the Indenture Trustee for authentication, and the Indenture
Trustee shall thereupon authenticate and deliver said Certificates to or upon
the oral or written order of the Owner Trustee, signed, if written, by an
authorized officer of the Owner Trustee, without any further action by the
Owner Trustee.
Section 2.02. Execution of Certificates. The Certificates shall be
signed on behalf of the Owner Trustee by an authorized officer of SSB. Such
signatures may be the manual or facsimile signatures of such officer and minor
errors or defects in any reproduction of any such signature shall not affect
the validity or enforceability of any Certificate which has been duly
authenticated and delivered by the Indenture Trustee.
In case any officer of SSB who shall have signed any of the
Certificates shall cease to be such officer before the Certificate so signed
shall be authenticated and delivered by the Indenture Trustee or disposed of
by SSB, such Certificate nevertheless may be authenticated and delivered or
disposed of as though the person who signed such Certificate had not ceased to
be such officer of SSB; and any Certificate may be signed on behalf of the
Owner Trustee by such person or persons as, at the actual date of the
execution of such Certificate, shall be the proper officers of SSB, although
at the date of the execution and delivery of this Indenture any such person
was not such an officer. Certificates bearing the facsimile signatures of
individuals who were authorized officers of SSB at the time such Certificates
were issued shall bind the Owner Trustee, notwithstanding that such
individuals or any of them have ceased to hold such offices prior to the
authentication and delivery of such Certificates or did not hold such offices
at the respective dates of such Certificates.
Section 2.03. Certificate of Authentication. Only such Certificates
as shall bear thereon a certificate of authentication substantially in the
form set forth in Exhibit B, executed by the Indenture Trustee by manual
signature of one of its authorized officers, shall be entitled to the security
and benefits of this Indenture or be valid or obligatory for any purpose.
Such certificate by the Indenture Trustee upon any Certificate executed by the
Owner Trustee shall be conclusive evidence that the Certificate so
authenticated has been duly authenticated and delivered hereunder and that the
Holder, as evidenced on the Register, is entitled to the security and benefits
of this Indenture.
Section 2.04. Form and Terms of Certificates; Payments of Principal,
Make-Whole Premium and Interest. The Certificates and the Indenture Trustee's
certificate of authentication shall be substantially in the form set forth in
Exhibit B hereto. Certificates may differ with respect to Maturity (subject
to Section 15.01(d) of the Participation Agreement) and as to other terms.
The Certificates shall be issuable as registered securities without coupons
and shall be numbered, lettered, or otherwise distinguished in such manner or
in accordance with such plans as the Owner Trustee executing the same may
determine with the approval of the Indenture Trustee.
The aggregate principal amount of Certificates that may be
authenticated and delivered under this Indenture is limited as provided in the
form of Certificate attached as Exhibit B hereto. The Certificates shall be
issued in registered form only and in denominations of $1,000 and any integral
multiple thereof, shall be dated the Certificate Closing Date, shall be issued
in three separate series consisting of Series A, Series B and Series C and
shall be issued in the Maturities and principal amounts, and shall bear
interest at the rates per annum, specified in the form of Certificate set forth
in Exhibit B.
Any of the Certificates may be issued with appropriate insertions,
omissions, substitutions and variations, and may have imprinted or otherwise
reproduced thereon such legend or legends, not inconsistent with the
provisions of this Indenture, as may be required to comply with any law or
with any rules or regulations pursuant thereto, or with the rules of any
securities market in which the Certificates are admitted to trading, or to
conform to general usage.
Each Certificate shall bear interest from the date of original
issuance thereof or from the most recent date to which interest has been paid
and duly provided for, as the case may be, which shall be payable on the dates
specified on the face of the form of Certificate set forth in Exhibit B hereto
until the principal thereof is paid. Interest shall be calculated on the
basis of a 360-day year of twelve 30-day months.
Notwithstanding the preceding paragraph, each Certificate shall bear
interest at the Past Due Rate on any principal, interest and any other amount
payable hereunder or under such Certificate, which shall not be paid in full
when due (whether at stated maturity, by acceleration, by mandatory prepayment
or otherwise), for the period from and including the due date thereof to but
excluding the date the same is paid in full, payable from time to time on
demand of the Indenture Trustee.
The principal of, and Make-Whole Premium, if any, and interest on, the
Certificates shall be payable at the Corporate Trust Department of the
Indenture Trustee or at any office or agency maintained for such purpose
pursuant to Section 3.02 hereof in immediately available funds prior to 10:30
A.M. (New York time) on the due date thereof and the Indenture Trustee shall
remit all such amounts received by it to the Holders at such account or
accounts at such financial institution or institutions as the Holders shall
have designated to the Indenture Trustee in writing, in immediately available
funds, such payment to be made if the payment was received prior to 10:30 A.M.
New York time by the Indenture Trustee on any Business Day, by 12:00 noon New
York time on such Business Day; otherwise, the Indenture Trustee shall make
payment promptly, but not later than 11:00 A.M. New York time on the next
succeeding Business Day; provided, however, that interest may be payable at the
option of the Indenture Trustee or its Paying Agent, as defined in Section
3.04, by mailing checks for such interest payable to or upon the written order
of the Holders entitled thereto as they shall appear on the Register. If any
amount payable under the Certificates, or under this Indenture, falls due on a
day that is not a Business Day, then such sum shall be payable on the next
succeeding Business Day, without (provided that payment is made on such next
succeeding Business Day) additional interest thereon for the period of such
extension.
The Holder at the close of business on any Record Date with respect
to any Payment Date shall be entitled to receive the interest if any payable
on such Payment Date notwithstanding any transfer or exchange of such
Certificate subsequent to the Record Date and prior to such Payment Date,
except if and to the extent the Owner Trustee shall default in the payment of
the interest due on such Payment Date, in which case such defaulted interest
shall be paid to the Holder at the close of business on a subsequent Record
Date (which shall be not less than five (5) or more than fifteen (15) Business
Days prior to the date of payment of such defaulted interest) established by
notice given by mail by or on behalf of the Owner Trustee to the Holders not
less than fifteen (15) days preceding such subsequent Record Date.
The Owner Trustee agrees to pay to the Indenture Trustee for
distribution in accordance with Section 5.04 hereof (a) any and all indemnity
amounts received by the Owner Trustee which are payable by the Lessee to (i)
the Indenture Trustee in its individual capacity, (ii) the Subordination Agent
or (iii) each Liquidity Provider, in each case pursuant to Article 8 or 9 of
the Participation Agreement (it being acknowledged that the Lessee has been
instructed to pay such amounts to the Person or Persons entitled thereto) and
(b) the Owner Trustee's pro rata share of all amounts owed to each Liquidity
Provider by the Subordination Agent under each Liquidity Facility other than
amounts due as (i) repayments of the principal of advances thereunder, and (ii)
interest on Interest Drawings and Final Drawings except to the extent included
in Net Interest and Related Charges. As used in this Section, the Owner
Trustee's pro rata share means as of any time:
(A) with respect to all amounts other than Net Interest and
Related Charges, a fraction the numerator of which is the aggregate
principal balance then outstanding of the Certificates issued under
this Indenture (other than the Series C Certificates) and the
denominator of which is the aggregate principal balance of all
Certificates issued under this Indenture and the Related Indentures
(other than the Series C Certificates), plus
(B) with respect to all Net Interest and Related Charges (x)
if there exists a Payment Default under any Certificate issued under
this Indenture a fraction, the numerator of which is the aggregate
principal balance then outstanding of Certificates issued under this
Indenture (other than the Series C Certificates) and the denominator
of which is the aggregate principal balance then outstanding of all
Certificates issued under this Indenture and the Related Indentures
(other than the Series C Certificates) under which there exists a
Payment Default or (y) at all other times, zero.
As used in this Section, "Net Interest and Related Charges" means the sum of
(i) the amount, if any, by which interest payable to each Liquidity Provider
on any Interest Drawing and/or Final Drawing exceeds the amount which would be
payable if such drawings bore interest at the weighted average Past Due Rate
applicable to amounts in default on all Certificates plus (ii) any amounts
payable under Section 3.01, Section 3.02, Section 3.03, Section 3.09 or
Section 7.07 of each Liquidity Facility (or similar provisions of any
replacement Liquidity Facility) which result from any Interest Drawing or
Final Drawing. As used in this Section, a Payment Default when used in
connection with a Certificate issued hereunder or a Certificate issued under
any Related Indenture means a default in the payment of principal thereof or
interest thereon (which default has not been cured), other than solely because
of acceleration.
Section 2.05. Payments from Trust Indenture Estate Only. All
payments to be made by the Owner Trustee under this Indenture shall be made
only from the income and the proceeds from the Lessor's Estate to the extent
included in the Trust Indenture Estate and from any other amounts of the type
described in Section 5.01 hereof (but only to the extent actually received by
the Indenture Trustee) and only to the extent that the Owner Trustee shall
have sufficient income or proceeds from the Lessor's Estate to the extent
included in the Trust Indenture Estate (and such other amounts) to enable the
Indenture Trustee to make distributions of the amounts due in respect of the
Certificates in accordance with the terms hereof and thereof. Each Holder by
its acceptance of a Certificate agrees that it will look solely to the income
and proceeds from the Trust Indenture Estate (and such other amounts of the
type described in Section 5.01 hereof but only to the extent actually received
by the Indenture Trustee) to the extent available for distribution to it as
provided herein and that neither the Owner Participant, the Owner Trustee, SSB
nor the Indenture Trustee is personally liable to such Holder for any amounts
payable under this Indenture or such Certificate or for any amounts payable or
liability under any Certificate or this Indenture, except as expressly
provided herein in the case of SSB, the Owner Trustee or the Indenture
Trustee.
SSB is not personally liable to any Holder, the Lessee, the Owner
Participant or the Indenture Trustee for any amounts payable under this
Indenture or for any liability under this Indenture or the Certificates,
except as a result of SSB's gross negligence or willful misconduct, or as
otherwise expressly provided herein or in the Participation Agreement.
If (1) all or any part of the Lessor's Estate becomes the property of
a debtor subject to the reorganization provisions of the Bankruptcy Code, (2)
pursuant to such reorganization provisions the Owner Participant is required,
by reason of the Owner Participant being held to have recourse liability to
the debtor or the trustee of the debtor directly or indirectly, to make
payment on account of any amount payable as principal of or interest,
Make-Whole Premium or other amounts payable on the Certificates, and (3) the
Indenture Trustee actually receives any Recourse Amount which reflects any
payment by the Owner Participant on account of (2) above, then the Indenture
Trustee shall promptly refund to the Owner Participant such Recourse Amount.
Nothing contained in this paragraph shall prevent the Indenture Trustee from
enforcing any personal recourse obligation (and retaining the proceeds
thereof) of the Owner Participant under the Participation Agreement, or from
retaining any amount paid by the Owner Participant under Sections 5.01, 8.02
and 8.03 hereof.
Section 2.06. Registration, Transfer and Exchange. The Indenture
Trustee will keep, on behalf of the Owner Trustee, at each office or agency to
be maintained for the purpose as provided in Section 3.02 hereof a Register or
Registers on which, subject to such reasonable regulations as it may
prescribe, it will register, and will register the transfer of, Certificates
as provided in this Article. Such Register shall be in written form in the
English language or in any other form capable of being converted into such
form within a reasonable period of time.
Upon due presentation for registration of transfer of any Certificate
at any such office or agency, the Owner Trustee shall execute and the
Indenture Trustee shall authenticate and deliver in the name of the transferee
or transferees a new Certificate or Certificates of the same Series and
Maturity, principal amount and interest rate and in authorized denominations
for an equal aggregate principal amount; provided, that such Certificate being
transferred shall be cancelled in accordance with Section 2.08 hereof
simultaneously with the issuance of the new Certificate.
Any Certificate or Certificates may be exchanged for a Certificate or
Certificates of the same Series and Maturity and interest rate but in other
authorized denominations, in an equal aggregate principal amount.
Certificates to be exchanged shall be surrendered at any office or agency to
be maintained by the Indenture Trustee for the purpose as provided in Section
3.02 hereof, and the Owner Trustee shall execute and the Indenture Trustee
shall authenticate and deliver in exchange therefor the Certificate or
Certificates which the Holder making the exchange shall be entitled to
receive, bearing numbers not contemporaneously or previously outstanding.
All Certificates presented for registration of transfer, exchange,
prepayment or payment shall (if so required by the Owner Trustee or the
Indenture Trustee) be duly endorsed by, or be accompanied by a written
instrument or instruments of transfer in form satisfactory to the Owner
Trustee and the Indenture Trustee duly executed by the Holder or its attorney
duly authorized in writing and (except in the case of transfers pursuant to
Section 15.01 of the Participation Agreement) the Indenture Trustee may
require evidence satisfactory to it as to the compliance of any such transfer
with the Securities Act.
The Indenture Trustee may require payment from the Holder of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any exchange or registration of transfer of Certificates. No
service charge shall be levied for any such transaction.
The Indenture Trustee shall not be required to exchange or register a
transfer of any Certificates (a) for a period of fifteen (15) days immediately
preceding the first mailing of notice of prepayment of such Certificates or
(b) with respect to which notice of prepayment has been given pursuant to
Section 6.03 hereof and such notice has not been revoked.
All Certificates issued upon any transfer or exchange of Certificates
shall be valid obligations of the Owner Trustee, evidencing the same debt, and
entitled to the same security and benefits under this Indenture, as the
Certificates surrendered upon such transfer or exchange.
Section 2.07. Mutilated, Defaced, Destroyed, Lost and Stolen
Certificates. In case any temporary or definitive Certificate shall become
mutilated, defaced or be apparently destroyed, lost or stolen, the Owner
Trustee in its discretion may execute, and upon the oral or written request of
any officer of SSB, the Indenture Trustee shall authenticate and deliver, a
new Certificate of like Maturity, principal amount and interest rate as the
Certificate being replaced, bearing a number not contemporaneously or
previously outstanding, in exchange and substitution for the mutilated or
defaced Certificate, or in lieu of and substitution for the Certificate so
apparently destroyed, lost or stolen. In the case of any Certificate so
apparently destroyed, lost or stolen, the applicant for a substitute
Certificate shall furnish to the Owner Trustee and to the Indenture Trustee
such security or indemnity as may be required by them to indemnify and defend
and to hold each of them harmless and evidence to their satisfaction of the
apparent destruction, loss or theft of such Certificate and of the ownership
thereof.
Upon the issuance of any substitute Certificate, the Owner Trustee or
the Indenture Trustee may require payment from the Holder of a sum sufficient
to cover any tax or other governmental charge that may be imposed in relation
thereto and any other reasonable expenses incurred in connection therewith.
In case any Certificate which has matured or is about to mature, or has been
called for prepayment in full, shall become mutilated or defaced or be
apparently destroyed, lost or stolen, the Owner Trustee may, instead of
issuing a substitute Certificate, pay or authorize the payment of the same
(without surrender thereof except in the case of a mutilated or defaced
Certificate), if the applicant of any Certificate so apparently destroyed,
lost or stolen, for such payment shall furnish to the Owner Trustee and to the
Indenture Trustee such security or indemnity as any of them may require to
hold each of them harmless and the applicant shall also furnish to the Owner
Trustee and the Indenture Trustee evidence to their satisfaction of the
apparent destruction, loss or theft of such Certificate and of the ownership
thereof.
Every substitute Certificate issued pursuant to the provisions of
this Section by virtue of the fact that any Certificate is apparently
destroyed, lost or stolen shall constitute an original additional contractual
obligation of the Owner Trustee, whether or not the apparently destroyed, lost
or stolen Certificate shall be enforceable at any time by anyone and shall be
entitled to all the security and benefits of (but shall be subject to all the
limitations of rights set forth in) this Indenture equally and proportionately
with any and all other Certificates duly authenticated and delivered
hereunder. All Certificates shall be held and owned upon the express
condition that, to the extent permitted by law, the foregoing provisions are
exclusive with respect to the replacement or payment of mutilated, defaced, or
apparently destroyed, lost or stolen Certificates and shall preclude any and
all other rights or remedies notwithstanding any law or statute existing or
hereafter enacted to the contrary with respect to the replacement or payment
of negotiable instruments or other securities without their surrender.
Section 2.08. Cancellation of Certificates; Destruction Thereof. All
Certificates surrendered for payment, prepayment, registration of transfer or
exchange, if surrendered to the Owner Trustee or any agent of the Owner
Trustee or the Indenture Trustee, shall be delivered to the Indenture Trustee
for cancellation or, if surrendered to the Indenture Trustee, shall be
cancelled by it; and no Certificates shall be issued in lieu thereof except as
expressly permitted by any of the provisions of this Indenture. The Indenture
Trustee shall destroy cancelled Certificates held by it and deliver a
certificate of destruction to the Owner Trustee. If the Owner Trustee shall
acquire any of the Certificates, such acquisition shall not operate as a
prepayment or satisfaction of the indebtedness represented by such
Certificates unless and until the same are delivered to the Indenture Trustee
for cancellation.
Section 2.09. Temporary Certificates. Pending the preparation of
definitive Certificates, the Owner Trustee may execute and, upon the oral or
written request of an officer of SSB, the Indenture Trustee shall authenticate
and deliver temporary Certificates (printed, lithographed, typewritten or
otherwise reproduced, in each case in form satisfactory to the Indenture
Trustee). Temporary Certificates shall be issuable as registered Certificates
without coupons, of any authorized denomination, and substantially in the form
of the definitive Certificates but with such omissions, insertions and
variations as may be appropriate for temporary Certificates, all as may be
determined by the Owner Trustee with the concurrence of the Indenture Trustee.
Temporary Certificates may contain such reference to any provisions of this
Indenture as may be appropriate. Every temporary Certificate shall be
executed by the Owner Trustee and, upon the oral or written request of an
authorized officer of the Owner Trustee, be authenticated by the Indenture
Trustee upon the same conditions and in substantially the same manner, and
with like effect, as the definitive Certificates. Without unreasonable delay
the Owner Trustee shall execute and shall furnish definitive Certificates and
thereupon temporary Certificates shall be surrendered in exchange therefor
without charge at any office or agency to be maintained by the Indenture
Trustee for the purpose pursuant to Section 3.02 hereof, and, upon the oral
or written request of an authorized officer of the Owner Trustee, the
Indenture Trustee shall authenticate and deliver in exchange for such
temporary Certificates an equal aggregate principal amount of definitive
Certificates of the same Series and Maturities and interest rates and in
authorized denominations. Until so exchanged, temporary Certificates shall be
entitled to the same security and benefits under this Indenture as definitive
Certificates.
Section 2.10. Termination of Interest in Trust Indenture Estate. A
Holder shall not, as such, have any further interest in, or other right with
respect to, the Trust Indenture Estate when and if the principal amount of and
Make-Whole Premium, if any, and interest on and other amounts due under all
Certificates held by such Holder and all other sums payable to such Holder
hereunder and under the other Operative Agreements shall have been paid in
full.
Section 2.11. Certificates in Respect of Replacement Aircraft. Upon
the execution and delivery of an Indenture and Security Agreement Supplement
covering a Replacement Airframe and/or Replacement Engine, as provided in
Section 9.09 hereof, each Certificate shall be deemed to have been issued in
connection with such Replacement Airframe and/or Replacement Engine and each
Certificate issued thereafter upon a transfer or exchange of, or as a
replacement for, a Certificate, shall be designated as having been issued in
connection with such Replacement Airframe and/or Replacement Engine, but
without any other change therein except as provided for in this Article II.
Section 2.12. Assumption of Obligations Under Certificates and Other
Operative Agreements. If, in accordance with and subject to the satisfaction
of the conditions set forth in Section 7.11 of the Participation Agreement,
the Lessee shall assume all of the obligations of the Owner Trustee hereunder,
under the Certificates and all other Operative Agreements, the Owner
Participant and the Owner Trustee shall be released and discharged from any
further obligations hereunder and under the
Certificates and all other Operative Agreements (except for any recourse
obligations of the Owner Participant or the Owner Trustee in its individual
capacity with respect to matters arising out of events occurring prior to such
assumption).
Section 2.13. Establishment of Collateral Account. (a) The
Indenture Trustee shall, pursuant to the Collateral Account Control Agreement,
establish, or cause to be established, with State Street Bank and Trust
Company, who shall represent and warrant that it is a financial intermediary
(as defined in Section 8-313(4) of the Connecticut Uniform Commercial Code),
in its name as secured party hereunder an Eligible Deposit Account entitled
"First Security Bank, National Association, as secured party under the Trust
Indenture and Security Agreement (Federal Express Corporation Trust No.
N674FE) dated as of May 1, 1997, with the Owner Trustee referred to therein".
(b) If at any time the Collateral Account ceases to be an Eligible
Deposit Account, the Indenture Trustee shall within two (2) Business Days,
establish a new Collateral Account meeting the conditions specified in the
definition of Eligible Deposit Account, and shall transfer any cash or any
investments in the Collateral Account to such new Collateral Account.
(c) The Indenture Trustee shall have exclusive dominion and control
of the Collateral Account and all funds therein, and shall make withdrawals
from the Collateral Account only in accordance with this Indenture.
(d) The Collateral Account Control Agreement shall require State
Street Bank and Trust Company to send confirmation to the Indenture Trustee
and the Lessee that it has credited the Specified Investments to the
Collateral Account and to make appropriate entries on its books identifying
the Specified Investments as pledged to the Indenture Trustee.
Section 2.14. Investment of Funds on Deposit in the Collateral
Account. (a) Funds deposited in the Collateral Account shall be invested and
reinvested by the Indenture Trustee, subject to Section 17.02 of the
Participation Agreement, at the risk of the Owner Trustee, in Specified
Investments selected by the Lessee and approved by the Indenture Trustee for
the account of the Owner Trustee in accordance with Section 2.14(b) below;
provided, however, that if Specified Investments meeting the requirements of
Section 2.14(b) are not available on any day on which funds are to be invested
as contemplated by the preceding provisions of this Section 2.14(a), the
Indenture Trustee may leave such funds in the Collateral Account uninvested
until the earliest of (i) the date on which an appropriate Specified
Investment becomes available, (ii) the Delivery Date and (iii) the Cut-Off
Date. The Indenture Trustee shall maintain possession of the negotiable
instruments or securities, if any, evidencing such Specified Investments and,
in the case of any Specified Investments in book-entry form, such Specified
Investments shall be credited to an account of the Indenture Trustee or a
financial intermediary with the applicable Federal Reserve Bank; provided,
however, if the account is credited to the financial intermediary, the
financial intermediary shall make written confirmation thereof to the
Indenture Trustee and make an appropriate entry on its books identifying the
Specified Investments as pledged to the Indenture Trustee. All proceeds of
and any income, interest and other payments and distributions on or with
respect to any Specified Investments shall be deposited in or credited to the
Collateral Account and thereafter shall be held, invested and applied by the
Indenture Trustee in accordance with this Indenture. The Indenture Trustee
shall promptly notify the Owner Trustee and the Lessee of any Losses.
(b) On the Certificate Closing Date, the Indenture Trustee shall
invest the amount deposited in the Collateral Account pursuant to Section
2.01(c) of the Participation Agreement in Specified Investments selected by
the Lessee and approved by the Indenture Trustee for the account of the Owner
Trustee which mature on or prior to September 23, 1997. If the Delivery Date
is postponed pursuant to Section 3.02(c) or Section 3.05 of the Participation
Agreement, the proceeds of the Specified Investments referred to in the
preceding sentence may be invested in Specified Investments which mature
within 14 days after the rescheduled Delivery Date. If no Delivery Date
occurs, then any Specified Investment shall mature no later than the 15th day
after the Cut-Off Date.
(c) If for any reason the Indenture Trustee shall be required to
make any distributions of the Liquid Collateral prior to the maturity date of
any Specified Investment, the Indenture Trustee shall cause the same to be
sold in accordance with standard commercial practices, and the Lessee, for the
account of the Owner Trustee, shall forthwith compensate the Indenture Trustee
for any Losses as provided in Section 17.02(a) of the Participation Agreement.
(d) Pursuant to Section 17.02(b) of the Participation Agreement,
interest payable on the Certificates during the period in which funds are on
deposit in the Collateral Account shall be paid by the Lessee.
Section 2.15. Release of Debt Portion and Lien on the Collateral
Account and the Liquid Collateral on Delivery Date. (a) Subject to the
satisfaction or waiver of the conditions precedent to the Indenture Trustee's
obligations set forth in Section 4.02 of the Participation Agreement, on the
Delivery Date, subject to the proviso to Section 3.02(a) of the Participation
Agreement, the Indenture Trustee shall release from the Collateral Account an
amount of Liquid Collateral, equal to the lesser of (A) the Debt Portion and
(B) the amount actually in the Collateral Account on the Delivery Date.
Subject to the proviso to Section 3.02(a) of the Participation Agreement, such
amount so released, together with the amount of any Losses received from the
Lessee pursuant to Section 17.02(a) of the Participation Agreement, shall be
used to finance a portion of the Purchase Price payable by (x) the Owner
Trustee as contemplated by Section 3.02(a) of the Participation Agreement or
(y) if the fifth sentence of Section 3.05(a) of the Participation Agreement
shall be applicable, by the Lessee as contemplated by such sentence. Any
amount remaining in the Collateral Account after such release (net of any
uncompensated Losses) shall be remitted by the Indenture Trustee on behalf of
the Owner Trustee to the Lessee pursuant to Section 3.02(a)(C) of the
Participation Agreement.
(b) The Lien of this Indenture on the Collateral Account and the
Liquid Collateral shall terminate on the Delivery Date following the transfer
of amounts described in Section 3.02(a) of the Participation Agreement.
Section 2.16. Cut-Off Date. In the case of a prepayment under
Section 6.02(a)(vi) hereof, the Indenture Trustee shall release from the
Collateral Account all amounts held in the Collateral Account on such date.
Such amount so released, together with the amount of any Losses received from
the Lessee pursuant to Sections 17.02(a) and 17.02(c) of the Participation
Agreement, shall be applied to pay amounts due under Section 6.02(b)(1) hereof
on the 15th day following the Cut-Off Date, and any amount (net of any
uncompensated Losses) remaining after such release and application shall be
remitted by the Indenture Trustee, on behalf of the Owner Trustee, to the
Lessee.
Section 2.17. Subordination. (a) The Owner Trustee and, by
acceptance of its Certificates of any Series, each Holder of such Series,
hereby agree that no payment or distribution shall be made on or in respect of
the Secured Obligations owed to such Certificate Holder of such Series,
including any payment or distribution of cash, property or securities after
the commencement of a proceeding of the type referred to in clause (v), (vi)
or (vii) of Section 7.01 hereof, except as expressly provided in Article V
hereof.
(b) By the acceptance of its Certificates of any Series
(other than Series A), each Holder of such Series agrees that in the event
that such Holder, in its capacity as a Holder, shall receive any payment or
distribution on any Secured Obligations in respect of such Series which it is
not entitled to received under this Section 2.17 or Article V hereof, it will
hold any amount so received in trust for the Senior Holder (as defined in
Section 2.17(c) hereof) and will forthwith turn over such payment to the
Indenture Trustee in the form received to be applied as provided in Article V
hereof.
(c) As used in this Section 2.17, the term "Senior Holder"
shall mean, (i) the Holders of Series A Certificates until the Secured
Obligations in respect of Series A Certificates have been paid in full, (ii)
after the Secured Obligations in respect of Series A Certificates have been
paid in full, the Holders of Series B Certificates until the Secured
Obligations in respect of Series B Certificates have been paid in full and
(iii) after the Secured Obligations in respect of Series B Certificates have
been paid in full, the Holders of Series C Certificates until the Secured
Obligations in respect of Series C Certificates have been paid in full.
ARTICLE III
COVENANTS
Section 3.01. Payment of Principal, Make-Whole Premium and Interest.
The Owner Trustee covenants and agrees that it will, subject to Section 2.05
hereof, duly and punctually pay or cause to be paid the principal of, and
interest and Make-Whole Premium, if any, and all other amounts due on, each of
the Certificates and under this Indenture at the place or places, at the
respective times and in the manner provided in this Indenture and in the
Certificates.
Principal and interest and other amounts due hereunder or under the
Certificates shall be payable in dollars on the due date thereof, to the
Indenture Trustee at the Corporate Trust Department (or such other account at
such other financial institution as the Indenture Trustee may designate for
the purpose). If any amount payable under the Certificates or under this
Indenture falls due on a day which is not a Business Day, then such sum shall
be payable on the next succeeding Business Day, without (provided that payment
is made on such next succeeding Business Day) additional interest thereon for
the period of such extension.
Section 3.02. Offices for Payments, etc. So long as any of the
Certificates remain outstanding, the Indenture Trustee will maintain the
following: (a) an office or agency where the Certificates may be presented
for payment and (b) a facility or agency in New York, New York where the
Certificates may be presented for registration of transfer and for exchange
and for prepayment as provided in this Indenture (the "Registrar"). The
Registrar shall keep a register (the "Register") with respect to the
Certificates and their transfer and exchange. The Indenture Trustee may
appoint one or more co-registrars ("Co-Registrars") for the Certificates and
may terminate any such appointment at any time upon written notice. The term
"Registrar" includes any Co-Registrar.
The Indenture Trustee shall initially act as Registrar.
Section 3.03. Appointment to Fill a Vacancy in Office of Indenture
Trustee. The Owner Trustee, whenever necessary to avoid or fill a vacancy in
the office of Indenture Trustee, will, with the consent of the Lessee,
appoint, in the manner provided in Section 12.02 hereof, an Indenture Trustee,
so that there shall at all times be an Indenture Trustee hereunder.
Section 3.04. Paying Agents. Whenever the Indenture Trustee in its
sole discretion shall appoint a paying agent (the "Paying Agent"), it will
cause the Paying Agent to execute and deliver an instrument in which the
Paying Agent shall agree with the Indenture Trustee, subject to the provisions
of this Section:
(a) that it will hold all sums received by it as such agent for the
payment of the principal of, and interest and Make-Whole Premium, if any,
on the Certificates (whether such sums have been paid to it by the
Indenture Trustee or the Owner Trustee) in trust for the benefit of the
Holders or of the Indenture Trustee, and
(b) that it will give the Indenture Trustee notice of any failure by
the Owner Trustee to make any payment of the principal of or interest or
Make-Whole Premium, if any, on the Certificates when the same shall be due
and payable.
Anything in this Section to the contrary notwithstanding, the
agreements to hold sums in trust as provided in this Section are subject to
the provisions of Sections 14.03 and 14.04 hereof.
Section 3.05. Covenants of SSB and the Owner Trustee.
(a) SSB hereby covenants and agrees to perform its covenants set
forth in Sections 7.04(b) and 7.04(c) of the Participation Agreement.
(b) The Owner Trustee hereby covenants and agrees as follows:
(i) in the event a Responsible Officer of the Owner Trustee shall have
actual knowledge of an Indenture Event of Default, an Indenture Default or
an Event of Loss, the Owner Trustee will give prompt written notice of such
Indenture Event of Default, Indenture Default or Event of Loss to the
Indenture Trustee, the Lessee and the Owner Participant;
(ii) the Owner Trustee will furnish to the Indenture Trustee,
promptly upon receipt thereof, duplicates or copies of all reports,
notices, requests, demands, certificates, financial statements and other
instruments furnished to the Owner Trustee under the Lease, including,
without limitation, a copy of each report or notice from an insurer or an
insurance broker received pursuant to Article 13 of the Lease, to the
extent that the same shall not have been furnished to the Indenture Trustee;
(iii) the Owner Trustee will not enter into any business or other
activity other than the business of owning the Aircraft, the leasing
thereof to the Lessee and the carrying out of the transactions contemplated
hereby and by the Lease, the Participation Agreement, the Trust Agreement
and the other Indenture Documents; and
(iv) except as contemplated by the Operative Agreements, the Owner
Trustee will not contract for, create, incur or assume any debt, and will
not guarantee (directly or indirectly or by an instrument having the effect
of assuring another's payment or performance on any obligation or
capability of so doing, or otherwise), endorse or otherwise take action to
become contingently liable, directly or indirectly, in connection with the
debt of any other Person.
Section 3.06. [Reserved]
Section 3.07. Disposal of Trust Indenture Estate. At any time and
from time to time any part of the Trust Indenture Estate may be sold or
disposed of in accordance with the provisions of this Indenture and the Lease.
The Indenture Trustee shall, from time to time, release any part of the Trust
Indenture Estate so sold or disposed of or as to which an Event of Loss has
occurred or as to which the Lease has been terminated from the Lien of this
Indenture. In addition, to the extent that such property constitutes an
Airframe or Engine, the further requirements of Section 9.08 hereof shall be
complied with.
Section 3.08. No Representations or Warranties as to Aircraft or
Documents. NEITHER THE INDENTURE TRUSTEE NOR THE OWNER TRUSTEE NOR SSB NOR
THE OWNER PARTICIPANT MAKES OR SHALL BE DEEMED TO HAVE MADE ANY REPRESENTATION
OR WARRANTY, EXPRESS OR IMPLIED, AS TO THE TITLE, AIRWORTHINESS, WORKMANSHIP,
VALUE, CONDITION, DESIGN, COMPLIANCE WITH SPECIFICATIONS, MERCHANTABILITY OR
FITNESS FOR ANY PARTICULAR USE OR PURPOSE OF THE AIRCRAFT OR ANY ENGINE, AS TO
THE ABSENCE OF ANY INFRINGEMENT OF ANY PATENT, TRADEMARK OR COPYRIGHT, AS TO
THE ABSENCE OF OBLIGATIONS BASED ON STRICT LIABILITY IN TORT OR ANY OTHER
REPRESENTATION OR WARRANTY WITH RESPECT TO THE AIRCRAFT OR ANY ENGINE
WHATSOEVER, except that SSB warrants that on the Delivery Date (a) the Owner
Trustee shall have received whatever title was conveyed to it by AVSA, and (b)
the Aircraft shall be free and clear of Lessor's Liens attributable to SSB.
Neither SSB, the Indenture Trustee nor the Owner Participant makes or shall be
deemed to have made any representation or warranty as to the validity,
legality or enforceability of this Indenture, the Trust Agreement, the
Certificates or any Indenture Document or as to the correctness of any
statement contained in any thereof, except for the representations and
warranties of SSB and the Indenture Trustee made under this Indenture or in
the Participation Agreement or of the Owner Participant made under the
Participation Agreement.
Section 3.09. Further Assurances; Financing Statements. At any time
and from time to time, upon the request of the Indenture Trustee or the
Lessee, at the expense of the Lessee, the Owner Trustee shall promptly and
duly execute and deliver any and all such further instruments and documents as
may be specified in such request and as are necessary or advisable to perfect,
preserve or protect the Liens and assignments created or intended to be
created hereby, or to obtain for the Indenture Trustee the full benefit of the
specific rights and powers granted herein, including, without limitation, the
execution and delivery of Uniform Commercial Code financing statements and
continuation statements with respect thereto, or similar instruments relating
to the perfection of the Liens or assignments created or intended to be created
hereby.
ARTICLE IV
HOLDER LISTS
Section 4.01. Holder Lists; Ownership of Certificates. (a) The
Indenture Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
the Holders. If the Indenture Trustee is not the Registrar, the Registrar
shall furnish to the Indenture Trustee semi-annually not more than ten (10)
days after each Record Date, as of such Record Date, or at such other times as
the Indenture Trustee may request in writing, a list, in such form and as of
such date as the Indenture Trustee may reasonably require, containing all the
information in the possession or control of the Registrar as to the names and
addresses of the Holders and the amounts and Maturities of the Certificates
held by such Holders.
(b) Ownership of the Certificates shall be proved by the Register
kept by the Registrar.
ARTICLE V
RECEIPT, DISTRIBUTION AND APPLICATION OF
INCOME FROM THE TRUST INDENTURE ESTATE
Section 5.01. Basic Rent Distribution. Except as otherwise provided
in Section 5.03 hereof, each installment of Basic Rent, any payment of
interest on overdue installments of Basic Rent, any payment received by the
Indenture Trustee pursuant to Section 8.03(a) hereof and any payment received
by the Indenture Trustee pursuant to Section 17.02(b) or 17.02(c) of the
Participation Agreement shall be distributed by the Indenture Trustee no later
than the time herein provided in the following order of priority:
first, (i) so much of such installment or payment as shall be
required to pay in full the aggregate amount of the payment or
payments of Principal Amount and interest and other amounts (as
well as any interest on any overdue Principal Amount and, to the
extent permitted by applicable law, on any overdue interest and
any other overdue amounts) then due under all Series A
Certificates shall be distributed to the Holders of Series A
Certificates ratably, without priority of one over the other, in
the proportion that the amount of such payment or payments then
due under each Series A Certificate bears to the aggregate amount
of the payments then due under all Series A Certificates;
(ii) after giving effect to paragraph (i) above, so much of
such installment or payment as shall be required to pay in full
the aggregate amount of the payment or payments of Principal
Amount and interest and other amounts (as well as any interest on
any overdue Principal Amount and, to the extent permitted by
applicable law, on any overdue interest and any other overdue
amounts) then due under all Series B Certificates shall be
distributed to the Holders of Series B Certificates ratably,
without priority of one over the other, in the proportion that the
amount of such payment or payments then due under each Series B
Certificate bears to the aggregate amount of the payments then due
under all Series B Certificates; and
(iii) after giving effect to paragraph (ii) above, so much of
such installment or payment as shall be required to pay in full
the aggregate amount of the payment or payments of Principal
Amount and interest and other amounts (as well as any interest on
any overdue Principal Amount and, to the extent permitted by
applicable law, on any overdue interest and any other overdue
amounts) then due under all Series C Certificates shall be
distributed to the Holders of Series C Certificates ratably,
without priority of one over the other, in the proportion that the
amount of such payment or payments then due under each Series C
Certificate bears to the aggregate amount of the payments then due
under all Series C Certificates; and
second, the balance if any of such installment or payment remaining
thereafter shall be distributed to the Owner Trustee, or as the
Owner Trustee may request, for distribution pursuant to the Trust
Agreement.
Section 5.02. Event of Loss and Replacement; Prepayment. (a)
Except as otherwise provided in Section 5.03 hereof, any payment received by
the Indenture Trustee as the result of an Event of Loss with respect to the
Aircraft (including pursuant to Section 11.03(e) of the Lease, but, in the
case of said Section 11.03(e), subject to the time limits specified therein)
or as the result of, or in connection with any event under the Lease giving
rise to, a prepayment pursuant to Section 6.02 hereof, shall be promptly
distributed by the Indenture Trustee in the following order of priority:
first, to reimburse the Indenture Trustee for any costs or expenses
reasonably incurred in connection with such prepayment,
second, (i) to pay the amounts specified in paragraph (i) of clause
"second" of Section 5.03 hereof then due and payable in respect
of the Series A Certificates;
(ii) after giving effect to paragraph (i) above, to pay the
amounts specified in paragraph (ii) of clause "second" of Section
5.03 hereof then due and payable in respect of the Series B
Certificates; and
(iii) after giving effect to paragraph (ii) above, to pay the
amounts specified in paragraph (iii) of clause "second" of
Section 5.03 hereof then due and payable in respect of the Series
C Certificates;
provided that payments pursuant to this clause "second" shall be
made without the payment of Make-Whole Premium except in the
particular circumstances provided in Section 6.02(b) hereof; and
third, as provided in clause "third" of Section 5.03 hereof;
provided that if a Replacement Airframe shall be substituted for an Airframe
subject to an Event of Loss as provided in Section 11.03 of the Lease and
Section 9.08 hereof, any proceeds which result from such Event of Loss and are
paid to the Indenture Trustee shall be held by the Indenture Trustee as part
of the Trust Indenture Estate and, unless otherwise applied pursuant to
Section 5.01 or 5.03 hereof, such proceeds shall be released to the Lessee
upon the release of such damaged Airframe and the replacement thereof as
herein provided.
(b) Any amounts received directly or indirectly from any governmental
authority, insurer or other party pursuant to any provision of Article 11 or
13 of the Lease as the result of loss or damage not constituting an Event of
Loss (x) with respect to the Aircraft, or as a result of such loss or damage
constituting an Event of Loss if and to the extent that such amounts would at
the time be required to be paid to the Lessee pursuant to said Article 11 or
13 but for the fact that a Payment Default, Bankruptcy Default or an Event of
Default shall have occurred and be continuing or (y) are pledged to the Lessor
as security in connection with an Event of Loss in accordance with Section
11.03(e) of the Lease, shall be held by the Indenture Trustee as security for
the obligations of the Lessee under the Lease and the Participation Agreement
and shall be invested in accordance with the terms of Section 5.08 hereof and
at such time as the conditions for payment to the Lessee specified in said
Article 11 or 13, as the case may be, shall be fulfilled and there shall not
be continuing any Payment Default, Bankruptcy Default or Event of Default,
such amount, and the proceeds of any investment thereof, shall, to the extent
not theretofore applied, be paid to the Lessee to the extent provided in the
Lease.
Section 5.03. Payment After Indenture Event of Default, etc. Except
as otherwise provided in Sections 5.02(b), 5.04(b), 5.04(c) and 5.05 hereof,
all payments (other than Excepted Payments) received and all amounts held or
realized by the Indenture Trustee after an Indenture Event of Default shall
have occurred and so long as such an Indenture Event of Default shall be
continuing, and after the Certificates shall have become due and payable as
provided in Section 7.02(b) or (c) hereof, shall be promptly distributed by
the Indenture Trustee in the following order of priority:
first, so much of such payments or amounts as shall be required to
reimburse the Indenture Trustee for any tax, expense, charge or
other loss (including, without limitation, all amounts to be
expended at the expense of, or charged upon the tolls, rents,
revenues, issues, products and profits of, the property included
in the Trust Indenture Estate pursuant to Section 7.03(b) hereof)
incurred by the Indenture Trustee (to the extent not previously
reimbursed) (including, without limitation, the expenses of any
sale, taking or other proceeding, attorneys' fees and expenses,
court costs, and any other expenditures incurred or expenditures
or advances made by the Indenture Trustee or the Holders in the
protection, exercise or enforcement of any right, power or remedy
or any damages sustained by the Indenture Trustee or the Holders,
liquidated or otherwise, upon such Indenture Event of Default)
shall be applied by the Indenture Trustee as between itself and
the Holders in reimbursement of such expenses;
second, (i) so much of such payments or amounts remaining as shall be
required to pay in full the aggregate unpaid Principal Amount of
all Series A Certificates, and the accrued but unpaid interest
and other amounts due thereon and all other Secured Obligations
(other than Make-Whole Premium) in respect of the Series A
Certificates to the date of distribution, shall be distributed to
the Holders of Series A Certificates, and in case the aggregate
amount so to be distributed shall be insufficient to pay in full
as aforesaid, then ratably, without priority of one over the
other, in the proportion that the aggregate unpaid Principal
Amount of all Series A Certificates held by each holder plus the
accrued but unpaid interest and other amounts due hereunder or
thereunder (other than Make-Whole Premium) to the date of
distribution, bears to the aggregate unpaid Principal Amount of
all Series A Certificates held by all such holders plus the
accrued but unpaid interest and other amounts due thereon (other
than Make-Whole Premium) to the date of distribution;
(ii) after giving effect to paragraph (i) above, so much of
such payments or amounts remaining as shall be required to pay in
full the aggregate unpaid Principal Amount of all Series B
Certificates, and the accrued but unpaid interest and other
amounts due thereon and all other Secured Obligations (other than
Make-Whole Premium) in respect of the Series B Certificates to
the date of distribution, shall be distributed to the Holders of
Series B Certificates, and in case the aggregate amount so to be
distributed shall be insufficient to pay in full as aforesaid,
then ratably, without priority of one over the other, in the
proportion that the aggregate unpaid Principal Amount of all
Series B Certificates held by each holder plus the accrued but
unpaid interest and other amounts due hereunder or thereunder
(other than Make-Whole Premium) to the date of distribution,
bears to the aggregate unpaid Principal Amount of all Series B
Certificates held by all such holders plus the accrued but unpaid
interest and other amounts due thereon (other than Make-Whole
Premium) to the date of distribution; and
(iii) after giving effect to paragraph (ii) above, so much of
such payments or amounts remaining as shall be required to pay in
full the aggregate unpaid Principal Amount of all Series C
Certificates, and the accrued but unpaid interest and other
amounts due thereon and all other Secured Obligations (other than
Make-Whole Premium) in respect of the Series C Certificates to
the date of distribution, shall be distributed to the Holders of
Series C Certificates, and in case the aggregate amount so to be
distributed shall be insufficient to pay in full as aforesaid,
then ratably, without priority of one over the other, in the
proportion that the aggregate unpaid Principal Amount of all
Series C Certificates held by each holder plus the accrued but
unpaid interest and other amounts due hereunder or thereunder
(other than Make-Whole Premium) to the date of distribution,
bears to the aggregate unpaid Principal Amount of all Series C
Certificates held by all such holders plus the accrued but unpaid
interest and other amounts due thereon (other than Make-Whole
Premium) to the date of distribution;
(it being understood that amounts payable under this clause
"second" shall not include Make-Whole Premium); and
third, the balance, if any of such payments or amounts remaining
thereafter shall be distributed to the Owner Trustee for
distribution pursuant to the Trust Agreement.
Section 5.04. Certain Payments. (a) Except as otherwise provided
in this Indenture, any payments received by the Indenture Trustee which are to
be applied according to any provision in any other Indenture Document shall be
applied thereunder in accordance therewith.
(b) The Indenture Trustee will distribute, promptly upon receipt, any
indemnity or other payment received by it from the Owner Trustee or the Lessee
in respect of (i) the Indenture Trustee in its individual capacity, (ii) the
Subordination Agent, (iii) each Liquidity Provider, and (iv) the Pass Through
Trustee, in each case whether pursuant to Article 8 or 9 of the Participation
Agreement or as Supplemental Rent, directly to the Person (which may include
the Indenture Trustee) entitled thereto. Any payment received by the
Indenture Trustee under clause (b) of the last paragraph of Section 2.04 shall
be distributed to the Subordination Agent to be distributed in accordance with
the terms of the Intercreditor Agreement.
(c) Notwithstanding anything to the contrary contained herein, any
sums received by the Indenture Trustee which constitute Excepted Payments
shall be distributed promptly upon receipt by the Indenture Trustee directly
to the Person or Persons entitled thereto.
Section 5.05. Other Payments. Any payments received by the Indenture
Trustee for which no provision as to the application thereof is made elsewhere
in this Indenture or in any other Indenture Document (including without
limitation Article 9 of the Lease) shall be distributed by the Indenture
Trustee (a) to the extent received or realized at any time prior to the
payment in full of all obligations to the Holders, in the order of priority
specified in Section 5.01 hereof, and (b) to the extent received or realized
at any time after payment in full of all obligations to the Holders, in the
following order of priority:
first, in the manner provided in clause "first" of Section 5.03 hereof
and
second, in the manner provided in clause "third" of Section 5.03 hereof.
Section 5.06. Payments to Owner Trustee. Any amounts distributed
hereunder by the Indenture Trustee to the Owner Trustee shall be paid to the
Owner Trustee by wire transfer of immediately available funds of the type
received by the Indenture Trustee at such office and to such account or
accounts of such entity or entities as shall be designated by notice from the
Owner Trustee to the Indenture Trustee from time to time. The Owner Trustee
hereby notifies the Indenture Trustee that unless and until the Indenture
Trustee receives notice to the contrary from the Owner Trustee, all amounts to
be distributed to the Owner Trustee hereunder for distribution in accordance
with the Trust Agreement shall be distributed by wire transfer of immediately
available funds of the type received by the Indenture Trustee to such account
of the Owner Participant as may be specified pursuant to Section 2.06 of the
Trust Agreement.
Section 5.07. Application of Payments. Each payment of principal of
and interest or other amounts due on each Certificate shall, except as
otherwise provided herein, be applied,
first, to the payment of interest on such Certificate due and payable to
the date of such payment, as provided in such Certificate, as
well as any interest on overdue principal and Make-Whole Premium,
if any, and, to the extent permitted by law, interest and other
amounts due thereunder,
second, to the payment of any other amount (other than the principal of
such Certificate) due hereunder to the Holder of such Certificate
or under such Certificate,
third, to the payment of the principal of such Certificate if then due
hereunder or under such Certificate and
fourth, the balance, if any remaining thereafter, to the payment of the
principal of such Certificate remaining unpaid (provided that
such Certificate shall not be subject to prepayment without the
consent of the affected Holder except as permitted by Sections
6.02, 6.06 and 8.02 hereof); provided that, solely for the
purpose of determining whether an Indenture Event of Default
shall have occurred and be continuing, each such payment shall be
deemed applied in the following order of priority: first, in the
manner provided in clause "first" above, second, in the manner
provided in clause "third" above, third, in the manner provided
in clause "second" above and fourth, in the manner provided in
clause "fourth" above.
Section 5.08. Investment of Amounts Held by Indenture Trustee.
Amounts held by the Indenture Trustee pursuant to Section 5.02(b) hereof or
pursuant to any provision of any Indenture Document providing for investment
by the Indenture Trustee of sums pursuant to Section 23.01 of the Lease or
this Section 5.08 shall be invested by the Indenture Trustee from time to time
in securities selected by (i) so long as no Event of Default shall have
occurred and be continuing, the Lessee (and in the absence of written
direction by the Lessee, the Indenture Trustee shall invest such monies in
direct obligations of the United States of America) or (ii) so long as an
Event of Default shall have occurred and be continuing, the Indenture Trustee
and in each case shall be of the type listed in clauses (i) through (iv) of
Section 23.01 of the Lease. Unless otherwise expressly provided in this
Indenture, any income realized as a result of any such investment, net of the
Indenture Trustee's reasonable fees and expenses in making such investment,
shall be held and applied by the Indenture Trustee in the same manner as the
principal amount of such investment is to be applied and any losses, net of
earnings and such reasonable fees and expenses, shall be charged against the
principal amount invested. The Lessee shall be responsible for and will
promptly pay to the Indenture Trustee or the Lessor, as the case may be, on
demand, the amount of any loss realized as the result of any such investment
(together with any fees, commissions and other costs and expenses, if any,
incurred by the Indenture Trustee or the Lessor in connection with such
investment), such amount to be disposed of in accordance with the terms hereof
or the Lease, as the case may be. The Indenture Trustee shall not be liable
for any loss resulting from any investment made by it or any investment sold
by it under this Indenture in accordance with instructions from the Lessee
other than by reason of its willful misconduct or gross negligence, and any
such investment may be sold (without regard to its maturity) by the Indenture
Trustee without instructions whenever the Indenture Trustee reasonably
believes such sale is necessary to make a distribution required by this
Indenture.
Unless otherwise confirmed in writing, an account statement delivered
by the Indenture Trustee to the Owner Trustee (with a copy to the Lessee)
shall be deemed written confirmation by the Owner Trustee that the investment
transactions identified therein accurately reflect the investment directions
given to the Indenture Trustee by or on behalf of the Lessee, unless the
Lessee notifies the Indenture Trustee in writing to the contrary within 30
days of the date of receipt of such statement.
Section 5.09. Withholding Taxes. The Indenture Trustee shall
withhold any Taxes required to be withheld, except to the extent that the
Holder has furnished evidence satisfactory to the Indenture Trustee of any
exemption from withholding claimed by such Holder and under no circumstances
shall the failure of any such Holder to receive any amounts so withheld
constitute an Indenture Event of Default. Notwithstanding any provision to
the contrary in Sections 5.01 through 5.05 hereof and subject to Article 8 of
the Participation Agreement, if the Lessee is required to pay any such Tax, or
any interest or penalty thereon, or to indemnify the Owner Participant or the
Owner Trustee with respect thereto pursuant to Section 8.01(c) of the
Participation Agreement, the Lessee shall be entitled to receive any payments
otherwise distributable to the Holder of any Certificate who was subject to
such Tax pursuant to Sections 5.01 to 5.05 hereof until the amounts the Lessee
shall have so paid in respect of any such Tax shall have been recovered in
full by the Lessee.
ARTICLE VI
PREPAYMENT OF CERTIFICATES
Section 6.01. No Prepayment Prior to Maturity. Except as provided
in Sections 6.02, 6.06 and 8.02 hereof, the Certificates may not be prepaid
prior to their respective Maturities.
Section 6.02. Prepayment of Certificates. (a) The Outstanding
Certificates shall be prepaid in full (and not in part):
(i) If an Event of Loss occurs with respect to the Airframe or with
respect to the Airframe and the Engines or engines then installed on the
Airframe (unless pursuant to Section 11.03 of the Lease and Section 9.08
hereof replacement equipment is substituted therefor).
(ii) If the Lessee, pursuant to Section 4.02(a) of the Lease, gives
notice of purchase of the Aircraft (and Section 2.12 hereof shall not be
applicable in connection with such purchase), but subject to Section
6.02(c) below.
(iii) If the Owner Participant or the Owner Trustee on behalf of the
Owner Participant gives notice of prepayment to the Indenture Trustee
pursuant to Section 8.02 hereof (unless such notice is revoked in
accordance with such Section).
(iv) If the Lessee, pursuant to Section 10.01 of the Lease, gives
notice of a voluntary termination for obsolescence or surplus, but subject
to Section 6.02(c) below.
(v) Pursuant to Section 15.01 of the Participation Agreement in
connection with a refinancing of the Certificates, but subject to Section
6.02(c) below.
(vi) As contemplated by Section 2.16 hereof and Section 3.05(b) of the
Participation Agreement if the Delivery Date has not occurred on or prior
to the Cut-Off Date.
(vii) At the option of the Owner Trustee with the prior written
consent of the Lessee and the Owner Participant upon not less than 25 days'
prior written notice.
(b) In the event of a prepayment of the Certificates pursuant to
Sections 6.02(a)(ii), (iv) and (v) above, the Owner Trustee, having received
notice from the Lessee in accordance with and subject to the terms of Section
4.02(a) or 10.01 of the Lease or Article 15 of the Participation Agreement, as
the case may be, shall give irrevocable (subject to Section 6.02(c) hereof)
written notice to the Indenture Trustee and to the Holders of all of the
Certificates specifying the Business Day on which the Certificates shall be
prepaid. In the case of a prepayment of the Certificates pursuant to Section
6.02(a)(i) above, the Certificates shall be prepaid in full on the Loss
Payment Date as defined in Section 11.02 of the Lease. In the case of a
prepayment of the Certificates pursuant to Section 6.02(a)(iii) above, the
Certificates shall be prepaid in full on the date so designated in the notice
referred to in Section 8.02 hereof. In the case of a prepayment of the
Certificates pursuant to Section 6.02(a)(ii) or (iv) above, the Certificates
shall be prepaid in full on the Termination Date. In the case of a prepayment
of the Certificates pursuant to Section 6.02(a)(v) above, the Certificates
shall be prepaid on the effective date of the Refinancing. In the case of a
prepayment of the Certificates pursuant to Section 6.02(a)(vi) above, the
Certificates shall be prepaid on the 15th day following the Cut-Off Date. In
the case of a prepayment of the Certificates pursuant to Section 6.02(a)(vii)
above, the Certificates shall be prepaid on the date designated in the notice
referred to therein. The day on which the Certificates are to be prepaid
pursuant to this Section 6.01(b) is herein referred to as the "Prepayment
Date".
On or prior to the Prepayment Date, immediately available funds shall
be deposited with the Indenture Trustee in an amount in respect of the
Certificates equal to:
(1) (i) if such prepayment is made under any provision of Section 6.02
hereof on or after the applicable Premium Termination Date, or (ii) if such
prepayment is made prior to the applicable Premium Termination Date
pursuant to Section 6.02(a)(i), 6.02(a)(iii) (if clause (i) of the first
sentence of Section 8.02(a) hereof is applicable) or 6.02(a)(vi) above, the
sum of (A) the aggregate principal amount of such Certificates then
Outstanding, (B) accrued interest on the Certificates to the Prepayment
Date and (C) all other aggregate sums due the Indenture Trustee hereunder
or under the Participation Agreement or the Lease, but excluding any
Make-Whole Premium or other premium or penalty, or
(2) if such prepayment is made prior to the applicable Premium
Termination Date pursuant to Section 6.02(a)(ii), 6.02(a)(iii) (if clause
(ii) of the first sentence of Section 8.02(a) hereof is applicable),
6.02(a)(iv), 6.02(a)(v) or 6.02(a)(vii) above, the sum of the amounts
specified in clauses (A), (B) and (C) of the preceding clause (1) plus any
Make-Whole Premium payable in respect of all Certificates with respect to
which the Premium Termination Date therefor has not occurred
(the aggregate amount required to be paid pursuant to this sentence being
herein referred to as the "Prepayment Price").
(c) If, pursuant to the last paragraph of Section 10.01(f) of the
Lease, no Termination Date shall occur, or if, pursuant to Section 4.02(a) of
the Lease, the Lessee revokes its notice of election to purchase, or if no
refinancing shall occur pursuant to Section 15.01 of the Participation
Agreement, the Lessee shall give notice thereof to the Indenture Trustee, and
the prepayment proposed to be effected in respect thereof shall not occur.
Section 6.03. Notice of Prepayment to Holders. In order to effect
any prepayment set forth in Section 6.02(a) hereof, the Indenture Trustee
shall give prompt notice by first class mail of prepayment to each Holder of
an Outstanding Certificate. Any notice of prepayment given by the Owner
Trustee may be revoked by the Owner Trustee at any time on or before the
Prepayment Date by prompt notice to the Holders except as otherwise provided
in the Lease or the Participation Agreement.
All notices of prepayment shall state:
(1) the Prepayment Date,
(2) the applicable basis for determining the Prepayment Price,
(3) that on the Prepayment Date, subject to the provisions hereof,
the Prepayment Price will become due and payable, and that interest
on the Certificates shall cease to accrue on and after such
Prepayment Date, and
(4) the place or places where such Certificates are to be
surrendered for payment.
Section 6.04. Deposit of Prepayment Price and Sinking Fund Redemption
Price. On the Prepayment Date or the Sinking Fund Redemption Date (as defined
in Section 6.06 hereof), the Owner Trustee shall, to the extent an amount
equal to the Prepayment Price or the Sinking Fund Redemption Price (as defined
in Section 6.06 hereof), as the case may be, shall not then be held in cash or
Permitted Investments (marked-to-market net of all costs and expenses of
liquidation thereof) by the Indenture Trustee in immediately available funds
and deposited for the purpose, pay to the Indenture Trustee an amount equal to
the difference between (a) the amount then so held and (b) the Prepayment
Price or the Sinking Fund Redemption Price, as the case may be. If there
shall so be on deposit and/or deposited the applicable Prepayment Price or
Sinking Fund Redemption Price on or prior to a Prepayment Date or Sinking Fund
Redemption Date, interest shall cease to accrue in respect of all or, in the
case of a mandatory sinking fund redemption, the relevant portion being
prepaid of, the Outstanding Certificates on and after such Prepayment Date or
such Sinking Fund Redemption Date.
Section 6.05. Certificates Payable on Prepayment Date. On the
Prepayment Date, the Outstanding Certificates shall (except (A) if the Owner
Trustee has requested the Indenture Trustee to revoke such notice of
prepayment in accordance with Section 6.03 hereof or (B) as otherwise provided
in the Lease) become due and payable and from and after such Prepayment Date
(unless there shall be a default in the payment of the Prepayment Price) such
Certificates shall cease to bear interest. Upon surrender by any Holder of
its Certificate for prepayment in accordance with said notice, such Holder
shall be paid the principal amount of its Certificate then outstanding, accrued
interest thereon to the Prepayment Date, all other sums due to such Holder
hereunder, under the Participation Agreement or the Lease, plus, if a
Make-Whole Premium is payable pursuant to Section 6.02(b) hereof, the
Make-Whole Premium in respect of such Certificate.
If any Certificate called for prepayment shall not be so paid upon
surrender thereof for prepayment, the principal shall, until paid, continue to
bear interest from the Prepayment Date at the interest rate applicable to such
Certificate.
Section 6.06. Mandatory Sinking Fund Redemption. The Certificates
shall be subject to partial redemption, at the aggregate principal amount set
forth for the Certificates of the respective Series and Maturity, on a pro
rata basis, on each date specified in this Section (a "Sinking Fund Redemption
Date") for such payment on the Certificates of such Series and Maturity. The
Owner Trustee shall deposit funds sufficient to pay the Sinking Fund
Redemption Price with the Indenture Trustee as provided in Section 6.04
hereof. The Indenture Trustee shall pay from the amounts so deposited on each
applicable Sinking Fund Redemption Date to the Certificates of each Series in
the order of priority set forth in clause "first" of Section 5.01 and among the
Holders of the Certificates of each Series then Outstanding on a pro rata
basis the aggregate principal amount set forth below, together with accrued
interest to such Sinking Fund Redemption Date, but without Make-Whole Premium
(the "Sinking Fund Redemption Price"):
Principal Amount
Series A Series B Series C
Certificates Certificates Certificates
with a with a with a
Sinking Fund Maturity of Maturity of Maturity of
Redemption Date January 15, 2018 January 15, 2018 January 15, 2014
- ---------------- ---------------- ---------------- -----------------
July 15, 1997 0 0 0
January 15, 1998 178,525 161,870 0
July 15, 1998 488,462 0 0
January 15, 1999 405,194 250,371 0
July 15, 1999 262,461 0 0
January 15, 2000 391,578 250,371 333,147
July 15, 2000 276,076 0 0
January 15, 2001 449,906 250,371 333,827
July 15, 2001 217,749 0 0
January 15, 2002 612,950 250,371 333,827
July 15, 2002 54,705 0 0
January 15, 2003 667,654 250,371 551,201
July 15, 2003 0 0 0
January 15, 2004 667,654 250,371 709,532
July 15, 2004 0 0 0
January 15, 2005 667,654 250,371 829,238
July 15, 2005 0 0 0
January 15, 2006 667,654 250,371 798,676
July 15, 2006 0 0 0
January 15, 2007 350,625 250,371 3,713,379
July 15, 2007 317,030 0 0
January 15, 2008 667,654 250,371 645,550
July 15, 2008 0 0 0
January 15, 2009 667,654 250,371 1,415,654
July 15, 2009 0 0 0
January 15, 2010 667,654 1,026,373 981,208
July 15, 2010 0 0 0
January 15, 2011 667,654 2,862,630 0
July 15, 2011 0 0 0
January 15, 2012 667,654 3,146,944 0
July 15, 2012 0 0 0
January 15, 2013 4,556,464 190,066 123,763
July 15, 2013 0 0 0
January 15, 2014 0 0 5,253,998
July 15, 2014 0 0 0
January 15, 2015 5,667,502 0 0
July 15, 2015 0 0 0
January 15, 2016 6,109,126 0 0
July 15, 2016 0 0 0
January 15, 2017 6,585,161 0 0
July 15, 2017 0 0 0
January 15, 2018 449,600 2,288,036 0
ARTICLE VII
INDENTURE EVENTS OF DEFAULT; REMEDIES
OF INDENTURE TRUSTEE AND HOLDERS
Section 7.01. Indenture Event of Default. "Indenture Event of
Default" means any of the following events (whatever the reason for such
Indenture Event of Default and whether it shall be voluntary or involuntary or
come about or be effected by operation of law or pursuant to or in compliance
with any judgment, decree or order of any court or any order, rule or
regulation of any administrative or governmental body):
(i) any Event of Default specified in Article 16 of the Lease (other
than an Event of Default arising solely as the result of the failure to
make an Excepted Payment unless the Owner Participant shall notify the
Indenture Trustee in writing that such failure shall constitute an
Indenture Event of Default); or
(ii) the failure of the Owner Trustee other than by reason of a
Default or an Event of Default (i) to pay principal, interest or Make-Whole
Premium, if any, on any Certificate when due, and such failure shall have
continued unremedied for ten (10) Business Days after the date when due or
(ii) to pay any other amounts hereunder or under the Certificates when due
and such failure shall have continued unremedied for a period of thirty
(30) days after the Owner Trustee and the Owner Participant shall receive
written demand therefor from the Indenture Trustee or by the Holders of not
less than 25% in aggregate principal amount of Outstanding Certificates; or
(iii) (A) any representation or warranty made by SSB, the Owner
Trustee, the Owner Participant or the Owner Participant Guarantor or any
Owner Trustee Guarantor, in any Operative Agreement or in any certificate of
SSB, the Owner Trustee, the Owner Participant, or the Owner Participant
Guarantor furnished to the Indenture Trustee or any Holder in connection
herewith or therewith or pursuant hereto or thereto shall prove to have been
incorrect when made and was and remains in any respect material to the
Holders and if such misrepresentation is capable of being corrected as of a
subsequent date and if such correction is being sought diligently, and such
misrepresentation shall not have been corrected within 30 days following
notice thereof identified as a "Notice of Indenture Event of Default" being
given to the Owner Trustee and the Owner Participant by the Indenture
Trustee or by a Majority in Interest of Holders; or
(B) any (x) covenant made by the Owner Trustee in the fifth paragraph
following the Habendum Clause hereof or Section 3.05(b)(iii) hereof or
Section 7.02(b) or 7.12 of the Participation Agreement shall be breached in
any respect, (y) covenant made by the Owner Participant in Section 7.02(c)
or the last sentence of Section 7.13 of the Participation Agreement shall
be breached in any respect or (z) other covenant made by the Owner Trustee,
in its individual capacity or as Owner Trustee, or by any Owner Trustee
Guarantor, or by the Owner Participant or the Owner Participant Guarantor
in any Operative Agreement shall be breached in any respect and such breach
shall remain unremedied for a period of thirty (30) days after there has
been given to the Owner Trustee and the Owner Participant by the Indenture
Trustee or by Certificate Holders of not less than 25% in aggregate
principal amount of Outstanding Certificates a written notice identified as
a "Notice of Indenture Event of Default" specifying such breach and
requiring it to be remedied; or
(iv) the Owner Trustee, the Lessor's Estate, any Owner Trustee
Guarantor, the Owner Participant or the Owner Participant Guarantor shall
file any petition or answer seeking for itself any reorganization,
arrangement, composition, readjustment, liquidation, dissolution or similar
relief under any present or future bankruptcy, insolvency or similar
statute, law or regulation;
(v) an order for relief shall be entered in respect of the Owner
Trustee or any Owner Trustee Guarantor or the Owner Participant or the Owner
Participant Guarantor or the Lessor's Estate by a court having jurisdiction
in the premises in an involuntary case under the federal bankruptcy laws as
now or hereafter in effect; or the Owner Trustee or any Owner Trustee
Guarantor or the Owner Participant or the Owner Participant Guarantor or
the Lessor's Estate shall file any answer admitting or not contesting the
material allegations of a petition filed against the Owner Trustee or any
Owner Trustee Guarantor or the Owner Participant or the Owner Participant
Guarantor or the Lessor's Estate in any proceeding referred to in clause
(vi) below or seek or consent or acquiesce in the appointment of any
trustee, custodian, receiver or liquidator of the Owner Trustee or any
Owner Trustee Guarantor or the Owner Participant or the Owner Participant
Guarantor or the Lessor's Estate, as the case may be, or of all or any
substantial part of its properties; or
(vi) without the consent or acquiescence of the Owner Trustee or any
Owner Trustee Guarantor or the Owner Participant or the Owner Participant
Guarantor or the Lessor's Estate, as the case may be, an order shall be
entered constituting an order for relief or approving a petition for relief
or reorganization or any other petition seeking any reorganization,
arrangement, composition, readjustment, liquidation, dissolution or other
similar relief under any present or future bankruptcy, insolvency or
similar statute, law or regulation, or if any such petition shall be filed
against the Owner Trustee or any Owner Trustee Guarantor or the Owner
Participant or the Owner Participant Guarantor or the Lessor's Estate, as
the case may be, and such petition shall not be dismissed within 60 days,
or if, without the consent or acquiescence of the Owner Trustee or any
Owner Trustee Guarantor or the Owner Participant or the Owner Participant
Guarantor or the Lessor's Estate, as the case may be, an order shall be
entered appointing a trustee, custodian, receiver or liquidator of the
Owner Trustee or any Owner Trustee Guarantor or the Owner Participant or
the Owner Participant Guarantor or the Lessor's Estate, as the case may be,
or of all or any substantial part of the properties of the Owner Trustee or
any Owner Trustee Guarantor or the Owner Participant or the Owner
Participant Guarantor or the Lessor's Estate, as the case may be, and such
order shall not be dismissed within 60 days; or
(vii) any Owner Trustee Guaranty or the Owner Participant Guaranty
shall cease to be a valid and enforceable obligation of any Owner Trustee
Guarantor or the Owner Participant Guarantor, as the case may be, or
otherwise shall not be in full force and effect.
Section 7.02. Remedies. (a) If an Indenture Event of Default shall
have occurred and be continuing and so long as the same shall be continuing
unremedied, then and in every such case, the Indenture Trustee may, and when
required by the provisions of Article IX or Section 7.02(c) hereof, shall (i)
exercise any or all of the rights and powers and pursue any and all of the
remedies pursuant to this Article VII and (ii) in the event such Indenture
Event of Default is an Indenture Event of Default referred to in clause (i) of
Section 7.01 hereof, exercise any and all of the remedies pursuant to Article
17 of the Lease; provided that without the consent of the Owner Trustee and
the Owner Participant such exercise of remedies shall not occur until after
the latest date on which the Owner Trustee may cure the related Event of
Default pursuant to Section 8.03 hereof. The Indenture Trustee may (subject
to the provisions of the next succeeding paragraph) take possession of all or
any part of the properties covered or intended to be covered by the Lien and
security interest created hereby or pursuant hereto and may exclude the Owner
Participant, the Owner Trustee, the Lessee and any transferee of the Lessee
and all Persons claiming under any of them wholly or partly therefrom. In
addition, the Indenture Trustee may (subject to the provisions of the next
succeeding paragraph) exercise any other right or remedy in lieu of or in
addition to the foregoing that may be available to it under applicable law, or
proceed by appropriate court action to enforce the terms hereof, of the Lease,
or both, or to rescind the Lease. Without limiting any of the foregoing, it
is understood and agreed that the Indenture Trustee may exercise any right of
sale of the Aircraft available to it, even though it shall not have taken
possession of the Aircraft and shall not have possession thereof at the time
of such sale.
Notwithstanding the foregoing, it is understood and agreed that if the
Indenture Trustee shall proceed to foreclose the Lien of this Indenture, it
shall substantially simultaneously therewith, to the extent the Indenture
Trustee is then entitled to do so hereunder and under the Lease, and is not
then stayed or otherwise prevented from doing so, proceed (to the extent it
has not already done so) to declare the Lease in default and commence the
exercise in good faith of one or more of the significant remedies under
Article 17 of the Lease (as the Indenture Trustee determines in its sole
discretion) for the purpose of recovering the Aircraft. It is further
understood and agreed that if the Indenture Trustee is unable to exercise one
or more remedies under Article 17 of the Lease because of any stay or
operation of law or otherwise, the Indenture Trustee shall not be entitled to
foreclose the Lien of this Indenture (A) until the earlier of (i) 60 days from
the date of any such stay or applicable order under Section 1110 of the
Bankruptcy Code plus any extension consented to by the Indenture Trustee or
the Holders of Certificates of such period as permitted under Section 1110(b)
of the Bankruptcy Code and (ii) the date of actual repossession of the
Aircraft by the Indenture Trustee or (B) if the Lessee has agreed to perform
or assume the Lease pursuant to Section 365 or 1110 of the Bankruptcy Code and
no Event of Default (other than as specified in Section 16.01(e), (f) or (g)
of the Lease, or other Event of Default in respect of which the 30-day period
referred to in clause (a)(1)(B)(ii)(I) of Section 1110 of the Bankruptcy Code
shall not yet have expired) shall be continuing. For the avoidance of doubt,
it is expressly understood and agreed that except as aforesaid the
above-described inability of the Indenture Trustee to exercise any right or
remedy under the Lease shall in no event and under no circumstances prevent
the Indenture Trustee from exercising all of its rights, powers and remedies
under this Indenture, including, without limitation, this Article VII. The
Indenture Trustee further agrees that notice of intent to foreclose shall be
given to the Owner Trustee at the earlier of the commencement of any
proceeding or at least 30 days prior to the consummation of foreclosure of the
Lien of this Indenture.
(b) If an Indenture Event of Default under clause (iv), (v) or (vi)
of Section 7.01 hereof shall occur and be continuing, the unpaid principal of
all Outstanding Certificates, together with interest accrued but unpaid
thereon and all other amounts due thereunder, but without Make-Whole Premium,
shall immediately become due and payable, without presentment, demand, protest
or notice, all of which are hereby waived.
(c) If any Indenture Event of Default not described in the preceding
paragraph (b) shall have occurred and be continuing, then and in every such
case, the Indenture Trustee may on its own accord or at the direction of
Holders of not less than 25% in aggregate principal amount of Outstanding
Certificates, at any time, by written notice to the Owner Trustee, the Owner
Participant and the Lessee, declare the principal of all the Certificates to
be due and payable, whereupon the unpaid principal amount of all Outstanding
Certificates, together with accrued interest thereon and all other amounts due
thereunder, but without Make-Whole Premium, shall immediately become due and
payable without presentment, demand, protest or other notice, all of which are
hereby waived. At any time after such declaration and prior to the sale or
disposition of the Trust Indenture Estate, however, the Holders of not less
than 50% in aggregate principal amount of Outstanding Certificates, by notice
to the Indenture Trustee, the Owner Trustee and the Lessee, may rescind such
declaration, whether made by the Indenture Trustee on its own accord or as
directed, if (x) there has been paid or deposited with the Indenture Trustee a
sum sufficient to pay all overdue installments of interest on all Certificates
(together, to the extent permitted by law, with interest on such overdue
installments of interest), the principal on any Certificates that has become
due otherwise than by such declaration of acceleration, all sums paid or
advanced by the Indenture Trustee hereunder and the reasonable compensation,
expenses, disbursements and advances of the Indenture Trustee, its agents and
counsel, or (y) all Indenture Events of Default (other than the nonpayment of
principal that has become due solely because of such acceleration) have been
either cured or waived as provided in Section 7.11 hereof. No such rescission
shall affect any subsequent default or impair any right consequent thereon.
(d) Each Holder shall be entitled at any sale to credit against any
purchase price bid at such sale by such Holder all or any part of the unpaid
obligations owing to such Holder secured by the Lien of this Indenture (but
only to the extent that an amount equal to such purchase price would have been
paid to such Holder pursuant to Article V hereof if such purchase price were
paid in cash and the foregoing provisions of this subsection (d) were not
given effect).
Section 7.03. Return of Aircraft, etc. Subject to Section 7.02
hereof: (a) If an Indenture Event of Default shall have occurred and be
continuing, at the request of the Indenture Trustee, the Owner Trustee shall
promptly execute and deliver to the Indenture Trustee such documents as the
Indenture Trustee may deem necessary or advisable to enable the Indenture
Trustee or an agent or representative designated by the Indenture Trustee, at
such time or times and place or places as the Indenture Trustee may specify,
to obtain possession of all or any part of the Trust Indenture Estate to which
the Indenture Trustee shall at the time be entitled under this Indenture.
Subject to the foregoing, if the Owner Trustee shall for any reason fail to
execute and deliver such documents after such request by the Indenture
Trustee, the Indenture Trustee may pursue all or part of such Trust Indenture
Estate wherever it may be found and enter any of the premises of the Lessee or
the Owner Trustee wherever such Trust Indenture Estate may be or be supposed
to be and search for such Trust Indenture Estate and take possession of and
remove such Trust Indenture Estate. All expenses of pursuing, searching for
and taking such Trust Indenture Estate shall, until paid, be secured by the
Lien of this Indenture.
(b) Upon every such taking of possession, the Indenture Trustee may,
from time to time, at the expense of the Trust Indenture Estate, make all such
expenditures for maintenance, insurance and repairs to and of such Trust
Indenture Estate, as the Indenture Trustee may reasonably deem proper. In
each case subject to Section 7.02 hereof, the Indenture Trustee shall have the
right to maintain, use, operate, store, lease, control or manage the Trust
Indenture Estate and to carry on the business and to exercise all rights and
powers of the Owner Participant and the Owner Trustee relating to the Trust
Indenture Estate, as the Indenture Trustee may reasonably deem best, including
the right to enter into any and all such agreements with respect to the
maintenance, insurance, use, operation, storage, leasing, control, management
or disposition of all or any part of the Trust Indenture Estate as the
Indenture Trustee may determine. Further, the Indenture Trustee shall be
entitled to collect and receive directly all tolls, rents (including Rent),
revenues, issues, income, products and profits of the Trust Indenture Estate
other than Excepted Payments, without prejudice, however, to the right of the
Indenture Trustee under any provision of this Indenture to collect and receive
all cash held by, or required to be deposited with, the Indenture Trustee
under this Indenture. Such tolls, rents (including Rent), revenues, issues,
income, products and profits shall be applied to pay the expenses of the use,
operation, storage, leasing, control, management, or disposition of the Trust
Indenture Estate, and of all maintenance and repairs, and to make all payments
which the Indenture Trustee may be required or may reasonably elect to make
for any taxes, assessments, insurance or other proper charges upon the Trust
Indenture Estate (including the employment of engineers and accountants to
examine, inspect and make reports upon the properties and books and records of
the Owner Trustee and the Lessee), and all other payments which the Indenture
Trustee may be required or authorized to make under any provision of this
Indenture, as well as just and reasonable compensation for the services of the
Indenture Trustee and of all persons properly engaged and employed for such
purposes by the Indenture Trustee; provided, that any excess amounts shall be
promptly distributed in accordance with Section 5.03 hereof.
(c) Subject to Section 7.02 hereof, if an Indenture Event of
Default shall have occurred and be continuing and the Indenture Trustee shall
be entitled to exercise remedies hereunder, and subject to Article VIII
hereof, the Indenture Trustee, either with or without taking possession, and
either before or after taking possession, and without instituting any legal
proceedings whatsoever, may sell, assign, transfer and deliver the whole or,
from time to time, to the extent permitted by law, any part of the Trust
Indenture Estate, or any part thereof, or interest therein, at any private
sale or public auction to the highest bidder, with or without demand,
advertisement or notice, except that in respect of any private sale 30 days
prior written notice by registered mail to the Owner Trustee and the Owner
Participant will be provided, for cash or, with the consent of the Owner
Trustee and the Owner Participant, credit or for other property, for immediate
or future delivery, and for such price or prices and on such terms as the
Indenture Trustee in exercising reasonable commercial discretion may
determine; provided, that any such action shall be at the time lawful and that
all mandatory legal requirements shall be complied with. Any notice required
pursuant to the terms hereof in the case of a public sale, shall state the
time and place fixed for such sale. Any such public sale shall be held at
such time or times within ordinary business hours as the Indenture Trustee
shall fix in the notice of such sale. At any such sale, the Trust Indenture
Estate may be sold in one lot as an entirety or in separate lots. The
Indenture Trustee shall not be obligated to make any sale pursuant to such
notice. The Indenture Trustee may, without notice or publication, adjourn any
public or private sale or cause the same to be adjourned from time to time by
announcement at the time and place fixed for such sale, and any such sale may
be made at any time or place to which the same may be so adjourned without
further notice or publication. The Indenture Trustee may exercise such right
of sale without possession or production of the Certificates or proof of
ownership thereof, and as representative of the Holders may exercise such
right without notice to the Holders or without including the Holders as
parties to any suit or proceedings relating to the foreclosure of any part of
the Trust Indenture Estate. The Owner Trustee shall execute any and all such
bills of sale, assignments and other documents, and perform and do all other
acts and things requested by the Indenture Trustee in order to permit
consummation of any sale of the Trust Indenture Estate in accordance with this
Section 7.03(c) and to effectuate the transfer or conveyance referred to in
the first sentence of this Section 7.03(c). Notwithstanding any other
provision of this Indenture, the Indenture Trustee shall not sell the Trust
Indenture Estate or any part thereof unless the Certificates shall have been
accelerated.
(d) To the extent permitted by applicable law, and subject to
Section 7.02 hereof, the Indenture Trustee or any Holder may be a purchaser of
the Trust Indenture Estate or any part thereof or any interest therein at any
sale thereof, whether pursuant to foreclosure or power of sale or otherwise.
The Indenture Trustee may apply against the purchase price therefor the amount
then due hereunder or under any of the Certificates secured hereby and any
Holder may apply against the purchase price therefor the amount then due to it
hereunder, under any other Indenture Document or under the Certificates held
by such Holder to the extent of such portion of the purchase price as it would
have received had it been entitled to share any distribution thereof. The
Indenture Trustee or any Holder or nominee thereof shall, upon any such
purchase, acquire good title to the property so purchased, free of the Lien of
this Indenture and, to the extent permitted by applicable law, free of all
rights of redemption in the Owner Trustee or the Owner Participant in respect
of the property so purchased.
(e) The Indenture Trustee shall, as a matter of right, be entitled to
the appointment of a receiver (who may be the Indenture Trustee or any
successor or nominee) for all or any part of the Trust Indenture Estate,
whether such receivership be incidental to a proposed sale of the Trust
Indenture Estate or the taking of possession thereof or otherwise, and the
Owner Trustee hereby consents to the appointment of such receiver and will not
oppose any such appointment. Any receiver appointed for all or any part of
the Trust Indenture Estate shall be entitled to exercise all of the rights and
powers of the Indenture Trustee with respect to the Trust Indenture Estate.
Section 7.04. Indenture Trustee May Prove Debt. If the Owner
Trustee shall fail to pay any amount payable hereunder or under the
Certificates, the Indenture Trustee, in its own name and as trustee of an
express trust, shall be entitled and empowered to institute any action or
proceedings at law or in equity for the collection of the sums so due and
unpaid, and may prosecute any such action or proceedings to judgment or final
decree, and may enforce any such judgment or final decree against the Owner
Trustee and collect in the manner provided by law out of the property of the
Owner Trustee wherever situated, the moneys adjudged or decreed to be payable;
provided, that any sale of any portion of the Trust Indenture Estate shall be
done in accordance with Sections 7.02 and 7.03(c) hereof.
In case there shall be pending proceedings relative to the Owner
Trustee under the Bankruptcy Code or any other applicable Federal or state
bankruptcy, insolvency or other similar law, or in case a receiver, assignee
or trustee in bankruptcy or reorganization, liquidator, sequestrator or
similar official shall have been appointed for or taken possession of the
Owner Trustee or its property, or in case of any other comparable judicial
proceedings relative to the Owner Trustee, or to the creditors or property of
the Owner Trustee, the Indenture Trustee, irrespective of whether the
principal of the Certificates shall then be due and payable as therein or
herein expressed or by declaration or otherwise and irrespective of whether
the Indenture Trustee shall have made any demand pursuant to the provisions of
this Section, shall be entitled and empowered, by intervention in such
proceedings or otherwise:
(a) to file and prove a claim or claims for the whole amount of
principal, interest and other amounts owing and unpaid in respect of the
Certificates or hereunder, and to file such other papers or documents as
may be necessary or advisable in order to have the claims of the Indenture
Trustee (including any claim for reasonable compensation to the Indenture
Trustee and each predecessor Indenture Trustee, and their respective
agents, attorneys and counsel, and for reimbursement of the Indenture
Trustee and each predecessor Indenture Trustee, except as a result of
negligence or bad faith) and of the Holders allowed in any judicial
proceedings relative to the Owner Trustee or to the creditors or property of
the Owner Trustee,
(b) unless prohibited by applicable law and regulations, to vote on
behalf of the Holders in any election of a trustee or a standby trustee in
arrangement, reorganization, liquidation or other bankruptcy or insolvency
proceedings or person performing similar functions in comparable
proceedings, and
(c) to collect and receive any moneys or other property payable or
deliverable on any such claims, and to distribute all amounts received with
respect to the claims of the Holders and of the Indenture Trustee on their
behalf;
and any trustee, receiver, or liquidator, custodian or other similar official
is hereby authorized by each of the Holders to make payments to the Indenture
Trustee, and, in the event that the Indenture Trustee shall consent to the
making of payments directly to the Holders, to pay to the Indenture Trustee
such amounts as shall be sufficient to cover reasonable compensation to the
Indenture Trustee, each predecessor Indenture Trustee and their respective
agents, attorneys and counsel, and all other expenses and liabilities
incurred, and all advances made, by the Indenture Trustee and each predecessor
Indenture Trustee except as a result of negligence or willful misconduct.
Nothing contained herein shall be deemed to authorize the Indenture
Trustee to authorize or consent to or vote for or accept or adopt on behalf of
any Holder any plan of reorganization, arrangement, adjustment or composition
affecting the Certificates or the rights of any Holder thereof, or to
authorize the Indenture Trustee to vote in respect of the claim of any Holder
in any such proceeding except, as aforesaid, to vote for the election of a
trustee in bankruptcy or similar person.
All rights of action and rights to assert claims under this
Indenture, or under any of the Certificates, may be enforced by the Indenture
Trustee without the possession of such Certificates on any trial or other
proceedings instituted by the Indenture Trustee shall be brought in its own
name as trustee of an express trust, and any recovery of judgment, subject to
the payment of the expenses, disbursements and compensation of the Indenture
Trustee, each predecessor Indenture Trustee and their respective agents and
attorneys, shall be for the ratable benefit of the Holders, as provided herein.
In any proceedings brought by the Indenture Trustee (and also any
proceedings involving the interpretation of any provision of this Indenture to
which the Indenture Trustee shall be a party) the Indenture Trustee shall be
held to represent all the Holders of the Certificates, and it shall not be
necessary to make any Holders parties to such proceedings.
Section 7.05. Remedies Cumulative. Each and every right, power and
remedy given to the Indenture Trustee in this Indenture shall be cumulative
and shall be in addition to every other right, power and remedy specifically
given herein or now or hereafter existing at law, in equity or by statute, and
each and every right, power and remedy whether specifically given herein or
otherwise existing may be exercised from time to time and as often and in such
order as may be deemed expedient by the Indenture Trustee or the Holders, and
the exercise or the beginning of the exercise of any power or remedy shall not
be construed to be a waiver of the right to exercise at the same time or later
any other right, power or remedy. No delay or omission by the Indenture
Trustee or of any Holder in the exercise of any right, remedy or power or in
the pursuance of any remedy shall impair any such right, power or remedy or be
construed to be a waiver of any default on the part of the Owner Trustee or
the Lessee or to be an acquiescence in any such default.
Section 7.06. Suits for Enforcement. If an Indenture Event of
Default has occurred, has not been waived and is continuing, the Indenture
Trustee may in its discretion and subject to its rights of appropriate
indemnification under Sections 7.08 and 9.03 and Article XI hereof proceed to
protect and enforce its rights and rights of the Holders by such appropriate
judicial proceedings as the Indenture Trustee shall deem most effectual to
protect and enforce any of such rights, either at law or in equity or in
bankruptcy or otherwise, whether for the specific enforcement of any covenant
or agreement contained in this Indenture or in aid of the exercise of any
power granted in this Indenture or to enforce any other legal or equitable
right vested in the Indenture Trustee or the Holders by this Indenture or by
law; provided, that any sale of any portion of the Trust Indenture Estate
shall be done in accordance with Sections 7.02 and 7.03(c) hereof.
Section 7.07. Discontinuance of Proceedings. In case the Indenture
Trustee or any Holder shall have instituted any proceeding to enforce any
right, power or remedy under this Indenture by foreclosure, entry or
otherwise, and such proceeding shall have been discontinued or abandoned for
any reason or shall have been determined adversely to the Indenture Trustee or
such Holder, then the Owner Trustee, the Indenture Trustee, the Owner
Participant, the Holders and the Lessee shall, subject to any binding
determination in such proceeding, be restored to their former positions and
rights under this Indenture with respect to the Trust Indenture Estate, and all
rights, remedies and powers of the Indenture Trustee and the Holders shall
continue as if no such proceeding had been instituted.
Section 7.08. Limitations on Suits by Holders. No Holder of any
Certificate shall have any right by virtue or by availing of any provision of
this Indenture to institute any action or proceeding at law or in equity or in
bankruptcy or otherwise upon or under or with respect to this Indenture, or
for the appointment of a trustee, receiver, liquidator, custodian or other
similar official or for any other remedy hereunder, unless such Holder
previously shall have given to the Indenture Trustee written notice that an
Indenture Event of Default shall then have occurred and be continuing, as
hereinbefore provided, and the Holders of not less than 25% in aggregate
principal amount of Outstanding Certificates shall have made written request
upon the Indenture Trustee to institute such action or proceedings in its own
name as trustee hereunder and shall have offered to the Indenture Trustee such
reasonable indemnity as it may require against the costs, expenses and
liabilities to be incurred therein or thereby and the Indenture Trustee for 60
days after its receipt of such notice, request and offer of indemnity shall
have failed to institute any such action or proceedings and no direction
inconsistent with such written request shall have been given to the Indenture
Trustee pursuant to Section 7.10 hereof; it being understood and intended, and
being expressly covenanted by the Holder of each Certificate with every other
Holder of each other Certificate and the Indenture Trustee, that no one or
more Holders shall have any right in any manner whatever to affect, disturb or
prejudice the rights of any other Holder or the Lien of this Indenture or any
part of the Trust Indenture Estate or to obtain or seek to obtain priority
over or preference to any other such Holder or to enforce any right under this
Indenture, except in the manner provided herein and for the equal, ratable and
common benefit of all Holders. For the protection and enforcement of the
provisions of this Section, each and every Holder and the Indenture Trustee
shall be entitled to such relief as can be given either at law or in equity.
Section 7.09. Unconditional Right of Holders to Receive Principal,
Interest and Make-Whole Premium, and to Institute Certain Suits.
Notwithstanding any other provision in this Indenture and any provision of any
Certificate, the right of any Holder to receive payment of the principal of
and interest and Make-Whole Premium, if any, on such Certificate on or after
the respective due dates and in the manner expressed in such Certificate, or,
subject to Section 7.08 hereof, to institute suit for the enforcement of any
such payment on or after such respective dates as provided herein, shall not
be impaired or affected without the consent of such Holder.
Section 7.10. Control by Holders. The Majority in Interest of
Certificate Holders shall have the right to direct the Indenture Trustee as to
the time, method, and place of conducting any proceeding for any remedy
available to the Indenture Trustee, or exercising any trust or power conferred
on the Indenture Trustee by this Indenture; provided that such direction shall
not be otherwise than in accordance with law and the provisions of this
Indenture and the Indenture Trustee shall have received, to the extent
provided in Sections 7.08 and 9.03 and Article XI hereof, such reasonable
indemnification as it may require against the costs, expenses and liabilities
to be incurred by the Indenture Trustee; and provided further that (subject to
the provisions of Section 9.02 hereof) the Indenture Trustee shall have the
right to decline to follow any such direction if the Indenture Trustee, being
advised by counsel, shall determine that the action or proceeding so directed
may not lawfully be taken or if the Indenture Trustee in good faith by its
board of directors, the executive committee, or a trust committee of directors
or Responsible Officers of the Indenture Trustee shall determine that the
action or proceedings so directed would involve the Indenture Trustee in
personal liability or if the Indenture Trustee in good faith shall so
determine that the actions or forebearances specified in or pursuant to such
direction shall be unduly prejudicial to the interests of Holders not joining
in the giving of said direction, it being understood that (subject to Section
9.02 hereof) the Indenture Trustee shall have no duty to ascertain whether or
not such actions or forebearances are unduly prejudicial to such Holders.
Nothing in this Indenture shall impair the right of the Indenture
Trustee in its discretion to take any action deemed proper by the Indenture
Trustee and which is not inconsistent with the direction by the Majority in
Interest of Certificate Holders.
Section 7.11. Waiver of Past Indenture Default. Upon written
instructions from the Majority in Interest of Certificate Holders, the
Indenture Trustee shall waive any past Indenture Default and its consequences
and upon any such waiver such Indenture Default shall cease to exist and any
Indenture Event of Default arising therefrom shall be deemed to have been
cured for every purpose of this Indenture, but no such waiver shall extend to
any subsequent or other Indenture Default or impair any right consequent
thereon; provided, however, that in the absence of written instructions from
all Holders and each Liquidity Provider, the Indenture Trustee shall not waive
any Indenture Default (a) in the payment of the principal of or Make-Whole
Premium, if any, or interest on, or other amounts due under, any Certificate
then Outstanding, or (b) in respect of a covenant or provision of this
Indenture which, under Article XIII hereof, cannot be modified or amended
without the consent of each Holder.
Section 7.12. Notice of Indenture Default. The Indenture Trustee
shall transmit to the Owner Trustee, the Holders and to the Owner Participant
notice of any Indenture Defaults actually known to a Responsible Officer of
the Indenture Trustee, such notice to be transmitted by mail to the Holders
within 90 days, and to the Owner Trustee and the Owner Participant promptly
after the occurrence thereof, unless such Indenture Default shall have been
cured before the giving of such notice; provided that except in the case of a
default in the payment of the principal of or interest on any Certificate,
under no circumstances shall the Indenture Trustee give such notice to the
Holders until the expiration of a period of 60 days from the occurrence of such
Indenture Default; and provided further that, except in the case of default in
the payment of the principal of or interest on or any other amount due under
any of the Certificates, the Indenture Trustee shall be protected in
withholding such notice to the Holders if and so long as the board of
directors, the executive committee, or a trust committee of directors or
trustees and/or Responsible Officers of the Indenture Trustee in good faith
determines that the withholding of such notice is in the interests of the
Holders.
ARTICLE VIII
RIGHTS OF THE OWNER TRUSTEE
AND THE OWNER PARTICIPANT
Section 8.01. Certain Rights of Owner Trustee and Owner Participant.
(a) Subject to Section 13.01 hereof and the provisions of paragraph (a)
immediately following the Granting Clause hereof, without the consent of a
Majority in Interest of Certificate Holders, the respective parties to the
Indenture Documents may not modify, amend or supplement any of said
agreements, or give any consent, waiver, authorization or approval thereunder,
for the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions thereof or of modifying in any manner the
rights of the respective parties thereunder; provided, however, that the
actions specified in subsection (b) of this Section 8.01 may be taken without
the consent of the Indenture Trustee or any Holder.
(b) Subject to the provisions of subsection (c) of this Section
8.01, the Lessor and the respective parties to the Indenture Documents, at any
time and from time to time, without the consent of the Indenture Trustee or of
any Holder, may:
(1) so long as no Indenture Event of Default shall have occurred and
be continuing, modify, amend or supplement the Lease, or give any waiver
with respect thereto, except that without compliance with subsection (a) of
this Section 8.01 the parties to the Lease shall not modify, amend or
supplement, or give any waiver for the purpose of adding any provisions to
or changing in any manner or eliminating any of the provisions thereof or
of modifying in any manner the rights of the respective parties thereunder,
with respect to the following provisions of the Lease as in effect on the
effective date hereof: Article 2 (except in respect of the Term, if the
result thereof would not be to shorten the Term of the Lease to a period
shorter than the period ending with the Maturity of any Certificate),
Section 3.03 (except to the extent such Section relates to amounts payable
(whether directly or pursuant to this Indenture) to Persons other than
Holders, each Liquidity Provider, the Subordination Agent and the Indenture
Trustee in its individual capacity), Section 3.05, Section 3.06 (except
insofar as it relates to the address or account information of the Owner
Trustee or the Indenture Trustee) (other than as such Sections 3.03, 3.05
and 3.06 may be amended pursuant to Section 3.04 of the Lease as in effect
on the effective date hereof), Section 5.01, Article 6, Article 10 (except
that further restrictions may be imposed on the Lessee), Article 11 (except
that additional requirements may be imposed on the Lessee), Article 13
(except for Section 13.05 and except that additional insurance requirements
may be imposed on the Lessee), Article 14 (except in order to increase the
Lessee's liabilities or enhance the Lessor's rights thereunder), Article 15
(except in the case of an assignment by the Lessor in circumstances where
the Aircraft shall remain registrable under the Federal Aviation Act),
Section 16.01 (except to impose additional or more stringent Events of
Default), Article 17 (except to impose additional remedies), Section 19.01
(except to impose additional requirements on the Lessee), Section 20.01,
Article 22, Section 23.01, Section 26.03 and any definition of terms used
in the Lease, to the extent that any modification of such definition would
result in a modification of the Lease not permitted pursuant to this
subsection (b); provided that the parties to the Lease may take any such
action without the consent of the Indenture Trustee or any Holder to the
extent such action relates to the payment of amounts constituting, or the
Owner Trustee's, the Owner Participant's or the Lessee's rights or
obligations with respect to, Excepted Payments (other than the place, time
and manner of payment of any portion of Basic Rent constituting an Excepted
Payment);
(2) modify, amend or supplement the Trust Agreement and any other
Indenture Document (other than the Lease and the Participation Agreement),
or give any consent, waiver, authorization or approval with respect
thereto, in each case only to the extent any such action shall not
materially adversely impact the interests of the Holders;
(3) modify, amend or supplement the Participation Agreement, or give
any consent, waiver, authorization or approval with respect thereto, except
that without compliance with subsection (a) of this Section 8.01 the
parties to the Participation Agreement shall not modify, amend or
supplement, or give any consent, waiver, authorization or approval for the
purpose of adding provisions to or changing in any manner or eliminating
any of the provisions thereof or of modifying in any manner the rights of
the respective parties thereunder, with respect to the following provisions
of the Participation Agreement as in effect on the effective date hereof:
Article 6 and Section 10.01(b) (insofar as such Article 6 and Section
10.01(b) relate to the Indenture Trustee, the Pass Through Trustee and the
Holders), Article 7 and Sections 3.05, 15.01, 17.02 and 17.11 and Articles
8 and 9 (insofar as such Articles relate to the Indenture Trustee; it being
understood that only the Indenture Trustee's consent in respect thereof
need be obtained) and any definition of terms used in the Participation
Agreement, to the extent that any modification of such definition would
result in a modification of the Participation Agreement not permitted
pursuant to this subsection (b); and
(4) modify, amend or supplement any of said agreements in order to
cure any ambiguity, to correct or supplement any provisions thereof which
may be defective or inconsistent with any other provision thereof or of any
provision of this Indenture, or to make any other provision with respect to
matters or questions arising thereunder or under this Indenture which shall
not be inconsistent with the provisions of this Indenture, provided the
making of any such other provision shall not adversely affect the interests
of the Holders.
(c) No modification, amendment, supplement, consent, waiver,
authorization or approval with respect to the Lease or the Participation
Agreement, whether effected pursuant to subsection (a) or pursuant to
subsection (b) of this Section 8.01 and anything in such subsections or
elsewhere in this Indenture to the contrary notwithstanding, shall, without
the consent of the Holder of each Outstanding Certificate affected thereby,
and each Liquidity Provider,
(1) modify, amend or supplement the Lease in such a way as to extend
the time of payment of Basic Rent or Stipulated Loss Value or Supplemental
Rent payable to the Holders or any Liquidity Provider or any other amounts
payable for the account of the Holders or any Liquidity Provider (subject
in any event to Section 3.05 of the Lease) upon the occurrence of an Event
of Loss or Termination Value and any other amounts payable for the account
of the Holders (subject in any event to Section 3.05 of the Lease) upon
termination of the Lease with respect to the Aircraft payable under, or as
provided in, the Lease as in effect on the effective date hereof, or reduce
the amount of any installment of Basic Rent or Supplemental Rent so that
the same is less than the payment of principal of, and interest on the
Certificates and Make-Whole Premium, if any, and amounts due to each
Liquidity Provider, as the case may be, to be made from such installment of
Basic Rent or Supplemental Rent, or reduce the aggregate amount of
Stipulated Loss Value, or any other amounts payable under, or as provided
in, the Lease as in effect on the effective date hereof upon the occurrence
of an Event of Loss so that the same is less than the accrued interest on
and the principal as of the Loss Payment Date, of the Certificates at the
time Outstanding or reduce the amount of Termination Value and any other
amounts payable under, or as provided in, the Lease as in effect on the
effective date hereof upon termination of the Lease with respect to the
Aircraft so that the same is less than the accrued interest on and
principal as of the Lease Termination Date and Make-Whole Premium, if any,
of Certificates at the time Outstanding, or
(2) modify, amend or supplement the Lease in such a way as to, or
consent to any assignment of the Lease or give any consent, waiver,
authorization or approval which would, release the Lessee from its absolute
and unconditional obligations in respect of payment of Basic Rent or
Supplemental Rent, or Stipulated Loss Value and any other amounts payable
for the account of the Holders (subject in any event to Section 3.05 of the
Lease) upon the occurrence of an Event of Loss, or Termination Value and
any other amounts payable for the account of the Holders (subject in any
event to Section 3.05 of the Lease) with respect to the Aircraft, payable
under, or as provided in, the Lease as in effect on the effective date
hereof, except for any such assignment pursuant to Section 2.12 hereof, and
except as provided in the Lease as in effect on the effective date hereof.
(d) At all times so long as this Indenture is in effect, the consent
of the Owner Trustee (at the direction of the Owner Participant) shall be
required in order (i) to amend, modify or supplement the Lease or any other
Operative Document to which the Owner Trustee is a party or to waive
compliance by the Lessee with any of its obligations thereunder and (ii) to
grant any consent requested under the Lease.
Notwithstanding the foregoing, but subject always to the provision of Section
15.05 hereof, the Indenture Trustee shall at all times have the right, to the
exclusion of the Owner Trustee and the Owner Participant, to (A) declare the
Lease to be in default under Article 17 (other than with respect to Excepted
Payments) thereof and (B) subject only to the provisions of this Indenture,
exercise the remedies set forth in such Article 17 of the Lease (other than in
connection with Excepted Payments) and in Article 7 hereof.
Nothing in this Indenture shall be deemed to prohibit the Owner
Participant or the Owner Trustee from making demand on the Lessee for, or from
commencing an action at law to obtain the payment of, or from receiving
payment of, any Excepted Payment; provided, however, that if the Owner Trustee
is proceeding under the Lease, the Owner Trustee shall proceed pursuant to
Section 17.01(a)(v), and only Section 17.01(a)(v), of the Lease.
Section 8.02. Owner Participant's Right to Elect to Prepay or
Purchase the Certificates. (a) If (i) an Event of Default shall have occurred
and be continuing for more than 180 days or the Certificates shall have become
due and payable pursuant to Section 7.02(b) or (c) hereof or (ii) an Event of
Default shall have occurred and be continuing for not more than 180 days and
the Certificates shall not have become due and payable pursuant to Section
7.02(b) or (c) hereof, the Owner Participant (or the Owner Trustee on behalf
of the Owner Participant) may, but shall be under no obligation to, do either
of the following:
(1) direct the Owner Trustee to cause the prepayment of all, but not
less than all, of the Certificates then Outstanding by notifying the
Indenture Trustee of such election, which notice in order to be effective
shall state that it is irrevocable (except as provided below) and shall
designate a Prepayment Date which shall be a Business Day which shall be
not less than 15 days after the date of such notice on which the Owner
Trustee shall, in the manner provided for in Section 6.04 hereof, deposit
the sum of amounts contemplated by paragraph "first" under Section 5.03 and
the aggregate Prepayment Price (determined in accordance with Section
6.02(b) hereof) of all such Certificates with the Indenture Trustee. If
such payment by the Owner Trustee to the Indenture Trustee is made, the
Certificates shall cease to accrue interest from and after the Prepayment
Date, and after distribution of such payment to the Holders, the Indenture
Trustee shall release the Trust Indenture Estate from the Lien of this
Indenture; or
(2) purchase all, but not less than all, of the Outstanding
Certificates by notifying the Indenture Trustee of such election, which
notice in order to be effective shall state that it is irrevocable (except
as provided below) and shall designate a date which shall be a Business Day
which shall be not less than 15 days after the date of such notice on which
the Owner Trustee shall pay to the Indenture Trustee an amount equal to the
aggregate unpaid principal amount of all Outstanding Certificates, together
with accrued interest on such amount to the date of purchase, the aggregate
amount of any Make-Whole Premium applicable to each Outstanding Certificate
(if such purchase occurs prior to the Premium Termination Date for such
Outstanding Certificate) in the case of a purchase pursuant to clause
(a)(ii) above (but not if such purchase is pursuant to clause (a)(i)
above), plus all other sums due any Holder or the Indenture Trustee
hereunder or under the Participation Agreement or the Lease. Upon receipt
by the Indenture Trustee of such amount, each Holder will be deemed,
whether or not Certificates shall have been delivered to the Indenture
Trustee on such date, to have thereupon sold, assigned, transferred and
conveyed (and shall promptly take such actions as the Owner Participant
shall reasonably request to evidence such sale, assignment, transfer and
conveyance) to the Owner Participant (without recourse or warranty of any
kind except for its own acts), all of the right, title and interest of such
Holder in and to the Trust Indenture Estate and this Indenture and all
Certificates held by such Holder and the former Holders shall not be
entitled to receive any interest on the principal amount of such
Certificates after the purchase date, and the Owner Participant shall be
deemed to have assumed (and shall promptly take such actions as any Holder
shall reasonably request to evidence such assumption) all of such Holder's
obligations under the Participation Agreement and this Indenture arising
subsequent to such sale. If the Owner Trustee shall so request, such
Holder will comply with all the provisions of Section 2.06 of this
Indenture to enable new Certificates to be issued to the Owner Participant
in such authorized denominations as the Owner Participant shall request.
All charges and expenses required pursuant to Section 2.06 hereof in
connection with the issuance of any such new Certificates shall be borne by
the Owner Participant.
(b) From and after the deposit by the Owner Trustee of the applicable
Prepayment Price or purchase price with the Indenture Trustee pursuant to
Section 8.02(a) hereof, the Owner Trustee shall be entitled to exercise all
remedies of the Indenture Trustee under Article VII hereof as well as of the
Lessor under the Lease.
(c) Any election to prepay or purchase the Certificates under this
Section 8.02 shall be irrevocable, provided that if on the specified date for
prepayment or purchase, the Event of Default giving rise to such election
shall no longer be continuing under the Lease such election shall be deemed to
be automatically withdrawn.
Section 8.03. Certain Rights of Owner Participant. (a) If (A)
there shall occur an Event of Default under the Lease as a result of the
Lessee's failure to make any payment of an installment of Basic Rent, and (B)
the Owner Trustee shall have paid or caused to be paid on or prior to the date
which is 15 Business Days after the Owner Participant's receipt of written
notice of such Event of Default all principal and interest on the Certificates
then due (as well as any interest on overdue principal and (to the extent
permitted by applicable law) interest), but not including any principal or
interest becoming due on account of such Event of Default, then the failure of
the Lessee to make the payment of such installment of Basic Rent or of
interest on account of such installment's being overdue shall not constitute
or result in an Indenture Event of Default under this Indenture and any
declaration based solely on the same shall be deemed to be automatically
rescinded. Nothing contained in the preceding sentence shall be deemed to
entitle the Owner Trustee to exercise any rights and powers or pursue any
remedies pursuant to Article 17 of the Lease or otherwise except as set forth
in this Indenture, and except that the Owner Trustee or the Owner Participant
may attempt to recover any amount paid by it or them under this Indenture by
demanding of the Lessee payment of such amount, or by commencing an action at
law or equity against the Lessee for the payment of such amount or taking
appropriate action in a pending action at law against the Lessee pursuant to
Section 17.01(a)(v), but only said Section 17.01(a)(v), of the Lease. Upon
curing any such Event of Default pursuant to this Section 8.03, the Owner
Trustee or the Owner Participant, as the case may be, shall be subrogated on
an unsecured basis to all the rights of the Indenture Trustee under the Lease
in respect of the payment giving rise to such Event of Default, and any right
to any interest in respect of the same, and shall be entitled to any payment
of Basic Rent (or interest thereon) actually made by the Lessee in respect of
such cured payment upon receipt by the Indenture Trustee; provided that no such
amount shall be paid to the Owner Trustee or the Owner Participant until all
amounts then due and payable to each Certificate Holder hereunder and
thereunder shall have been paid in full and no Indenture Event of Default
shall have occurred and be continuing. Notwithstanding anything in this
Indenture or the Lease to the contrary, the Owner Participant and the Owner
Trustee collectively, shall not be entitled to cure more than six (6) Events
of Default (no more than three (3) of which may be consecutive) occasioned by
defaults in the payment of Basic Rent.
(b) If (A) there shall occur an Event of Default under the Lease for
any reason other than the Lessee's failure to make any payment of an
installment of Basic Rent and (B) the Owner Trustee shall have taken or caused
to be taken such action necessary to cure and shall have cured such Event of
Default prior to the date which is 15 Business Days after the Owner
Participant's receipt of the written notice of such Event of Default, then
the failure of the Lessee to perform such covenant, condition or agreement,
the observance or performance of which was accomplished by the Owner Trustee
hereunder shall not constitute or result in an Indenture Event of Default under
this Indenture and any declaration based solely on the same shall be deemed to
be automatically rescinded. Nothing contained in the preceding sentence shall
be deemed to entitle the Owner Trustee or the Owner Participant to exercise
any rights and powers or pursue any remedies pursuant to Article 17 of the
Lease or otherwise except as set forth in this Indenture, and except that the
Owner Trustee or the Owner Participant may attempt to recover any amount paid
by it or them in effecting such cure by demanding of the Lessee payment of
such amount, plus any interest due, or by commencing an action at law or in
equity against the Lessee for the payment of such amount or taking appropriate
action in a pending action at law or in equity against the Lessee pursuant to
Section 17.01(a)(v), but only said Section 17.01(a)(v), of the Lease. Upon
curing any such Event of Default pursuant to this Section 8.03(b), the Owner
Trustee or the Owner Participant, as the case may be, shall be subrogated to
all the rights of the Indenture Trustee under the Lease in respect of the
payment, agreement or covenant giving rise to such Event of Default, and any
right to any interest in respect of the same, and shall be entitled to any
payment or other performance upon receipt by the Indenture Trustee; provided
that no such amount shall be paid to the Owner Trustee or the Owner
Participant until all amounts then due and payable to each Certificate Holder
hereunder and thereunder shall have been paid in full and no Indenture Event
of Default shall have occurred and be continuing.
ARTICLE IX
CONCERNING THE INDENTURE TRUSTEE
Section 9.01. Acceptance of Trusts. The Indenture Trustee in its
individual capacity hereby accepts the trusts imposed upon it by this
Indenture, and covenants and agrees to perform the same as expressed herein
and agrees to receive and disburse all moneys constituting part of the Trust
Indenture Estate in accordance with the terms hereof.
Section 9.02. Duties and Responsibilities of the Indenture Trustee;
During an Indenture Event of Default; Prior to an Indenture Event of Default.
(a) The Indenture Trustee, prior to the occurrence of an Indenture Event of
Default and after the curing or waiving of all Indenture Events of Default
which may have occurred, undertakes to perform such duties and only such
duties as are specifically set forth in this Indenture. So long as an
Indenture Event of Default has occurred and has not been cured or waived, the
Indenture Trustee shall exercise such of the rights and powers vested in it by
this Indenture, and use the same degree of care and skill in their exercise,
as a prudent man would exercise or use under the circumstances in the conduct
of his own affairs. No provision of this Indenture shall be construed to
relieve the Indenture Trustee from liability for its own negligent action, its
own negligent failure to act or its own willful misconduct, except that:
(i) prior to the occurrence of an Indenture Event of Default and
after the curing or waiving of all Indenture Events of Default which may have
occurred:
(x) the duties and obligations of the Indenture Trustee shall be
determined solely by the express provisions of this Indenture, and the
Indenture Trustee shall not be liable except for the performance of such
duties and obligations as are specifically set forth in this Indenture, and no
implied covenants or obligations shall be read in to this Indenture against
the Indenture Trustee; and
(y) in the absence of bad faith on the part of the Indenture
Trustee, the Indenture Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed therein, upon any
statements, certificates or opinions furnished to the Indenture Trustee and
conforming to the requirements of this Indenture; but in the case of any such
statements, certificate or opinions which by any provision hereof are
specifically required to be furnished to the Indenture Trustee, the Indenture
Trustee shall be under a duty to examine the same to determine whether or not
they conform to the requirements of this Indenture;
(ii) the Indenture Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer or Responsible Officers
of the Indenture Trustee, unless it shall be proved that the Indenture Trustee
was negligent in ascertaining the pertinent facts; and
(iii) the Indenture Trustee shall not be liable with respect to any
action taken or not taken by it in good faith in accordance with the direction
of the Holders of not less than a majority in aggregate principal amount of
Outstanding Certificates relating to the time, method and place of conducting
any proceeding for any remedy available to the Indenture Trustee, or
exercising any trust or power conferred upon the Indenture Trustee, under this
Indenture.
None of the provisions contained in this Indenture shall require the
Indenture Trustee to expend or risk its own funds or otherwise incur personal
financial liability in the performance of any of its duties or in the exercise
of any of its rights or powers, if the Indenture Trustee shall have determined
in good faith that the repayment of such funds or adequate indemnity against
such liability is not reasonably assured to it.
The Indenture Trustee agrees that it will execute and the Owner
Trustee agrees that it will, at the expense of the Lessee, file or cause to be
filed such continuation statements with respect to financing statements
relating to the security interest created hereunder in the Trust Indenture
Estate as may be specified from time to time in written instructions of the
Holders of not less than 25% in aggregate principal amount of Certificates
(which instructions may, by their terms, be operative only at a future date
and which shall be accompanied by the execution form of such continuation
statement so to be filed); provided that, notwithstanding the foregoing, the
Indenture Trustee may execute and file or cause to be filed any financing
statement which it from time to time deems appropriate.
(b) If any Event of Default shall have occurred and be continuing
and, after the latest date on which the Owner Trustee may cure such Event of
Default pursuant to Section 8.03 hereof, on request of the Holders of not less
than 25% in aggregate principal amount of Outstanding Certificates and subject
to indemnification, to the extent provided in Sections 7.08 and 9.03 and
Article XI hereof, as it may require against the costs, expenses and
liabilities to be incurred, the Indenture Trustee shall exercise such remedies
under Article 17 of the Lease as shall be specified in such request.
(c) The Indenture Trustee agrees that it will, in its individual
capacity and at its own cost and expense (but without any right of indemnity
in respect of any such cost or expense under Article XI hereof) promptly take
such action as may be necessary duly to discharge all Indenture Trustee's
Liens on any part of the Trust Indenture Estate.
(d) The Indenture Trustee will execute and deliver to the Lessee for
filing in accordance with Article 18 of the Lease any properly presented
document, instrument or financing or continuation statement specified in any
opinion delivered pursuant to Section 6.03(e) of the Participation Agreement.
The Indenture Trustee may rely on the act of presentation of any such
document, instrument, financing or continuation statement as evidencing the
fact that it is properly prepared and presented, provided that the Indenture
Trustee shall promptly correct any error in any such document, instrument,
financing or continuation statement of which a Responsible Officer of the
Indenture Trustee has actual knowledge.
(e) The Indenture Trustee will furnish to each Holder promptly upon
receipt thereof, duplicates or copies of all reports, notices, requests,
demands, certificates, financial statements and other instruments furnished to
the Indenture Trustee, to the extent that the same shall not have been
otherwise furnished to such Holder pursuant to this Indenture or to the extent
the Indenture Trustee does not reasonably believe that the same shall have
been furnished by the Lessee directly to such Holder.
Section 9.03. Certain Rights of the Indenture Trustee. Subject to
Section 9.02 hereof:
(a) the Indenture Trustee may rely and shall be protected in acting
or refraining from acting upon any resolution, Officer's Certificate or any
other certificate, statement, instrument, opinion, report, notice, request,
consent, order, bond, debenture, note, coupon, security 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, direction, order or demand of the Owner Trustee
mentioned herein shall be sufficiently evidenced by an Officer's
Certificate (unless other evidence in respect thereof be herein
specifically prescribed) upon which the Indenture Trustee may rely to prove
or establish a matter set forth therein;
(c) the Indenture Trustee may consult with counsel and any advice or
Opinion of Counsel shall be full and complete authorization and protection
in respect of any action taken, suffered or omitted to be taken by it
hereunder in good faith and in accordance with such advice or Opinion of
Counsel;
(d) the Indenture Trustee shall be under no obligation to exercise
any of the trusts or powers vested in it by this Indenture at the request,
order or direction of any of the Holders pursuant to the provisions of this
Indenture, unless such Holders shall have offered to the Indenture Trustee
reasonable security or indemnity against the costs, expenses and
liabilities which might be incurred therein or thereby;
(e) the Indenture Trustee shall not be liable for any action taken
or omitted by it in good faith and believed by it to be authorized or
within the discretion, rights or powers conferred upon it by this Indenture;
(f) prior to the occurrence of an Indenture Event of Default
hereunder and after the curing or waiving of all Indenture Events of
Default, the Indenture Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, approval,
appraisal, bond, debenture, note, coupon, security, or other paper or
document unless requested in writing to do so by the Majority in Interest
of Certificate Holders; provided that, if the payment within a reasonable
time to the Indenture Trustee of the costs, expenses or liabilities likely
to be incurred by it in the making of such investigation is, in the opinion
of the Indenture Trustee, not reasonably assured to the Indenture Trustee
by the security afforded to it by the terms of this Indenture, the
Indenture Trustee may require reasonable indemnity against such costs,
expenses or liabilities as a condition to proceeding; the reasonable
expenses of every such examination shall be paid by the Owner Trustee or,
if paid by the Indenture Trustee or any predecessor trustee, shall be
repaid by the Owner Trustee upon demand; and
(g) the Indenture Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
agents or attorneys not regularly in its employ and the Indenture Trustee
shall not be responsible for any misconduct or negligence on the part of
any such agent or attorney appointed with due care by it hereunder.
Section 9.04. Indenture Trustee Not Responsible for Recitals,
Disposition of Certificates or Application of Proceeds Thereof. The Indenture
Trustee assumes no responsibility for the correctness of the recitals
contained herein and in the Certificates, except the Indenture Trustee's
certificates of authentication. The Indenture Trustee makes no
representation as to the validity or sufficiency of this Indenture or of the
Certificates. The Indenture Trustee shall not be accountable for the use or
application by the Owner Trustee of any of the Certificates or of the proceeds
thereof.
Section 9.05. Indenture Trustee and Agents May Hold Certificates;
Collections, etc. The Indenture Trustee or any agent of the Indenture Trustee
in its individual or any other capacity may become the owner or pledgee of
Certificates with the same rights it would have if it were not the Indenture
Trustee or such agent and may otherwise deal with the Owner Trustee and
receive, collect, hold and retain collections from the Owner Trustee with the
same rights it would have if it were not the Indenture Trustee or such agent.
Section 9.06. Moneys Held by Indenture Trustee. Subject to Sections
5.08 hereof and 14.04 hereof, all moneys received by the Indenture Trustee
shall, until used or applied as herein provided, be held in trust for the
purposes for which they were received, but need not be segregated from other
funds except to the extent required by mandatory provisions of law. Neither
the Owner Trustee nor, subject to Section 5.08 hereof, the Indenture Trustee
nor any agent thereof shall be under any liability for interest on any moneys
received by it hereunder.
Section 9.07. Right of Indenture Trustee to Rely on Officer's
Certificate, etc. Subject to Sections 9.02 and 9.03 hereof, whenever in the
administration of the trusts of this Indenture the Indenture Trustee shall
deem it necessary or desirable that a matter be proved or established prior to
taking or suffering or omitting any action hereunder, such matter (unless
other evidence in respect thereof be specifically prescribed herein) may, in
the absence of bad faith on the part of the Indenture Trustee, be deemed to be
conclusively proved and established by an Officer's Certificate delivered to
the Indenture Trustee, and such certificate, in the absence of bad faith on
the part of the Indenture Trustee, shall be full warrant to the Indenture
Trustee for any action taken, suffered or omitted by it under the provisions
of this Indenture upon the faith thereof.
Section 9.08. Replacement Airframes and Replacement Engines. At any
time and from time to time any Airframe or Engine which has been subject to an
Event of Loss and may, or is required to, be replaced under Section 10.03,
11.03 or 11.04 of the Lease by a Replacement Airframe or Replacement Engine,
as the case may be, shall be replaced in accordance with the provisions of
this Section 9.08 and the provisions of said Sections of the Lease, the Owner
Trustee shall, from time to time, direct the Indenture Trustee to execute and
deliver to or as directed in writing by the Owner Trustee an appropriate
instrument releasing such Airframe and/or Engine as appropriate from the Lien
of this Indenture and the Indenture Trustee shall execute and deliver such
instrument as aforesaid without recourse or warranty, but only upon receipt by
or deposit with the Indenture Trustee of the following:
(1) A written request from the Owner Trustee requesting such release
and specifically describing the Airframe and/or Engine(s) to be so released.
(2) A certificate signed by a duly authorized officer of the Lessee
stating the following:
A. With respect to the replacement of any Airframe:
(i) a description of the Airframe subject to the Event of Loss
including the manufacturer, model, FAA registration number (or other
applicable registration information) and manufacturer's serial number;
(ii) a description of the Replacement Airframe, including the
manufacturer, model, FAA registration number (or other applicable
registration information) and manufacturer's serial number;
(iii) that on the date of the Indenture and Security Agreement
Supplement relating to the Replacement Airframe the Owner Trustee
will be the legal owner of and have good and marketable title to such
Replacement Airframe free and clear of all Liens except Liens
permitted under Section 6.01 of the Lease, that such Replacement
Airframe will on such date be in at least as good operating condition
and repair as required by the terms of the Lease, and that such
Replacement Airframe has been or, substantially concurrently with
such replacement, will be duly registered in the name of the Owner
Trustee under the Transportation Code or under the law then
applicable to the registration of the Airframe subject to the Event
of Loss and that an airworthiness certificate has been duly issued
under the Aviation Act (or such other applicable law) with respect to
such Replacement Airframe and that such registration and certificate
is, or will be, in full force and effect, and that the Lessee will
have the full right and authority to use such Replacement Airframe;
(iv) that the insurance required by Article 13 of the Lease is in
full force and effect with respect to such Replacement Airframe and
all premiums then due thereon have been paid in full;
(v) that the Replacement Airframe is of the same or an improved make
or model as the Airframe requested to be released from this Indenture;
(vi) that the value of the Replacement Airframe as of the date of such
certificate is not less than the value of the Airframe requested to
be released (assuming such Airframe was in the condition and repair
required to be maintained under the Lease);
(vii) that no Event of Default has occurred and is continuing or
would result from the making and granting of the request for release
and the addition of a Replacement Airframe;
(viii) that the release of the Airframe subject to the Event of Loss
will not impair the security of the Indenture in contravention of any
of the provisions of this Indenture;
(ix) that upon such replacement, the Lien of this Indenture will
apply to the Replacement Airframe and such Lien will be a first
priority security interest in favor of the Indenture Trustee; and
(x) that each of the conditions specified in Section 11.03 of the
Lease with respect to such Replacement Airframe has been satisfied.
B. With respect to the replacement of any Engine:
(i) a description of the Engine subject to the Event of Loss
including the manufacturer's serial number;
(ii) a description of the Replacement Engine including the
manufacturer's name, the engine model and serial number;
(iii) that on the date of the Indenture and Security Agreement
Supplement relating to the Replacement Engine the Owner Trustee will
be the legal owner of such Replacement Engine free and clear of all
Liens except Liens permitted under Section 6.01 of the Lease, and
that such Replacement Engine will on such date be in at least as good
operating condition and repair as required by the terms of the Lease
and will otherwise conform to the requirements set forth in the
definition of "Replacement Engine";
(iv) that the value of the Replacement Engine as of the date of such
certificate is not less than the value of the Engine to be released
(assuming such Engine was in the condition and repair required to be
maintained under the Lease);
(v) that the release of the Engine subject to the Event of Loss will
not impair the security of the Indenture in contravention of any of
the provisions of this Indenture;
(vi) that upon such replacement, the Lien of this Indenture will
apply to the Replacement Engine and such Lien will be a first
priority security interest in favor of the Indenture Trustee; and
(vii) that each of the conditions specified in Section 10.03, 11.03
or 11.04 of the Lease with respect to such Replacement Engine has
been satisfied.
(3) The appropriate instruments (i) transferring to the Owner
Trustee title to the Replacement Airframe or Replacement Engine to be received
as consideration for the Airframe or Engine to be released and (ii) assigning
to the Owner Trustee the benefit of all manufacturer's and vendor's
warranties, if any, generally available with respect to such Replacement
Airframe or Replacement Engine, and an Indenture and Security Agreement
Supplement subjecting such Replacement Airframe or Replacement Engine to the
Trust Agreement and to the Lien of this Indenture.
(4) A certificate from a firm of independent aircraft appraisers of
national standing satisfactory to the Indenture Trustee and the Owner Trustee
confirming the accuracy of the information set forth in clause (2)A.(vi) of
this Section 9.08.
(5) The opinion of Davis Polk & Wardwell, special counsel to the
Lessee, or other counsel reasonably satisfactory to the Indenture Trustee,
stating that:
(i) the certificates, opinions and other instruments and/or property
which have been or are therewith delivered to and deposited with the
Indenture Trustee conform to the requirements of this Indenture and the
Lease and, upon the basis of such application, the property so sold or
disposed of may be properly released from the Lien of this Indenture and
all conditions precedent herein provided for relating to such release have
been complied with; and
(ii) the Replacement Airframe or Replacement Engine has been validly
subjected to the Lien of this Indenture and covered by the Lease, the
instruments subjecting such Replacement Airframe or Replacement Engine to
the Lease and to the Lien of this Indenture, as the case may be, have been
duly filed for recordation pursuant to the Transportation Code or any other
law then applicable to the registration of the Aircraft, and no further
action, filing or recording of any document is necessary or advisable in
order to establish and perfect the title of the Owner Trustee to and the
Lien of this Indenture on such Replacement Airframe or Replacement Engine
and the Indenture Trustee would be entitled to the benefits of Section 1110
of the Bankruptcy Code with respect to such Replacement Airframe or
Replacement Engine, provided, that such opinion need not be to the effect
specified in the foregoing clause to the extent that the benefits of such
Section 1110 would not have been, by reason of a change in law or
governmental interpretation thereof after the date hereof, available to the
Indenture Trustee with respect to the Aircraft immediately prior to such
substitution had such Event of Loss not occurred.
Section 9.09. Indenture and Security Agreement Supplement for
Replacements. In the event of the substitution of a Replacement Airframe or a
Replacement Engine as contemplated by Section 10.03 or Article 11 of the
Lease, the Owner Trustee and the Indenture Trustee agree for the benefit of
the Holders and the Lessee, subject to fulfillment of the conditions precedent
and compliance by the Lessee with its obligations set forth in Section 10.03
or Article 11 of the Lease, to execute and deliver an Indenture and Security
Agreement Supplement as contemplated by Section 9.08(3) hereof and, provided
no Event of Default shall have occurred and be continuing, execute and deliver
to the Lessee an appropriate instrument releasing the Airframe or Engine being
replaced from the Lien of this Indenture.
Section 9.10. Effect of Replacement. In the event of the
substitution of a Replacement Airframe or a Replacement Engine as contemplated
by Section 10.01 or Article 11 of the Lease and Section 9.08 hereof, all
provisions of this Indenture relating to the Airframe or Engine or Engines
being replaced shall be applicable to such Replacement Airframe or Replacement
Engine or Engines with the same force and effect as if such Replacement
Airframe or Replacement Engine or Engines were the same Airframe or engine or
engines, as the case may be, as the Airframe or Engine or Engines being
replaced but for the Event of Loss with respect to the Airframe or Engine or
Engines being replaced.
Section 9.11. Compensation. The Owner Trustee covenants and agrees
to pay, and the Indenture Trustee shall be entitled to receive, reasonable
compensation and payment or reimbursement for its reasonable advances,
expenses and disbursements (including the reasonable compensation and expenses
and disbursements of its counsel, agents and other persons not regularly in
its employ) in connection with its services rendered hereunder or in any way
relating to or arising out of the administration of the Trust Indenture Estate
and shall have a priority claim on the Trust Indenture Estate for the payment
of such compensation, advances, expenses and disbursements to the extent that
such compensation, advances, expenses and disbursements shall not be paid by
the Lessee, and shall have the right to use or apply any moneys held by it
hereunder in the Trust Indenture Estate toward such payments; provided that,
so long as the Lease is in effect, the Indenture Trustee shall not make any
claim for payment under this Section 9.11 against the Owner Trustee without
first making demand on the Lessee for payment of such claim. The Indenture
Trustee agrees that it shall have no right against any Holder, SSB or the
Owner Participant for any fee as compensation for its services as trustee
under this Indenture.
ARTICLE X
CONCERNING THE HOLDERS
Section 10.01. Evidence of Action Taken by Holders. (a) Any
request, demand, authorization, direction, notice, consent, waiver or other
action provided by this Indenture to be given or taken by Holders may be
embodied in and evidenced by one or more instruments of substantially similar
tenor signed by such Holders in person or by an agent duly appointed in
writing, and, except as otherwise expressly provided herein, such action shall
become effective when such instrument or instruments are delivered to the
Indenture Trustee and, if expressly required herein, to the Owner Trustee.
Proof of execution of any instrument or of a writing appointing any such agent
shall be sufficient for any purpose of this Indenture and (subject to Sections
9.02 and 9.03 hereof) conclusive in favor of the Indenture Trustee and the
Owner Trustee, if made in the manner provided in this Article.
(b) For the purpose of determining the Holders entitled to vote or
consent to any direction, waiver or other action of such Holders under Section
7.10 or 7.11 hereof, the Lessee may set a record date for such vote or consent
by specifying such record date in an Officer's Certificate delivered to the
Indenture Trustee. Such record date shall be a date not more than 15 days
prior to the first solicitation of such vote or consent.
Section 10.02. Proof of Execution of Instruments and of Holding of
Certificates. Subject to Sections 9.02 and 9.03 hereof, the execution of any
instrument by a Holder or his agent or proxy may be proved in accordance with
such reasonable rules and regulations as may be prescribed by the Indenture
Trustee. The holding of Certificates shall be proved by the Register or by a
certificate of the Registrar.
Section 10.03. Holders to Be Treated as Owners. Prior to due
presentment for registration of transfer of any Certificate, the Owner
Trustee, the Indenture Trustee, any agent of the Owner Trustee or the
Indenture Trustee, the Paying Agent, if any, the Registrar and the Lessee
shall deem and treat the Person in whose name such Certificate shall be
registered upon the Register as the absolute owner of such Certificate
(whether or not such Certificate shall be overdue and notwithstanding any
notation of ownership or other writing thereon) for the purpose of receiving
payment of or on account of the principal of and, subject to the provisions of
this Indenture, interest on such Certificate and for all other purposes; and
neither the Owner Trustee nor the Indenture Trustee (nor any agent of the
Owner Trustee or the Indenture Trustee) nor the Paying Agent, if any, nor the
Registrar nor the Lessee shall be affected by any notice to the contrary. All
such payments so made to any such person, or upon his order, shall be valid,
and, to the extent of the sum or sums so paid, effectual to satisfy and
discharge the liability for moneys payable upon any such Certificate.
Section 10.04. Certificates Owned by Owner Trustee and the Lessee
Deemed Not Outstanding. In determining whether the Holders of the requisite
aggregate principal amount of Certificates have concurred in any direction,
consent or waiver under this Indenture, Certificates which are owned by the
Owner Trustee, the Owner Participant, SSB, the Lessee or by any Affiliate
thereof shall be disregarded and deemed not to be Outstanding for the purpose
of any such determination; provided that for the purpose of determining
whether the Indenture Trustee shall be protected in relying on any such
direction, consent or waiver, only if a Responsible Officer of the Indenture
Trustee has actual knowledge that certain Certificates are so owned by any
person directly or indirectly controlling or controlled by or under direct or
indirect common control with the Owner Trustee, the Owner Participant, SSB or
the Lessee shall such Certificates be so disregarded; and provided further
that if all Certificates which would be deemed Outstanding in the absence of
the foregoing provision are owned by the Owner Trustee, SSB or the Owner
Participant or by any Affiliate thereof, then such Certificates shall be
deemed Outstanding for the purpose of any such determination. Certificates
so owned which have been pledged in good faith may be regarded as Outstanding
if the pledgee establishes to the satisfaction of the Indenture Trustee the
pledgee's right so to act with respect to such Certificates and that the
pledgee is not the Owner Trustee, the Owner Participant, SSB or the Lessee or
any Person directly or indirectly controlling or controlled by or under direct
or indirect common control with the Owner Trustee, the Owner Participant, SSB
or the Lessee. In case of a dispute as to such right, the advice of counsel
shall be full protection in respect of any decision made by the Indenture
Trustee in accordance with such advice, unless the Lessee, the Owner Trustee,
SSB, or the Owner Participant are actually named in the Register. Upon
request of the Indenture Trustee, the Owner Trustee, the Owner Participant,
SSB and the Lessee shall furnish to the Indenture Trustee promptly an
Officer's Certificate listing and identifying all Certificates, if any, known
by the Owner Trustee, the Owner Participant, SSB or the Lessee to be owned or
held by or for the account of any of the above-described persons; and, subject
to Sections 9.02 and 9.03 hereof, the Indenture Trustee shall be entitled to
accept such Officer's Certificate as conclusive evidence of the facts set
forth therein and of the fact that all Certificates not listed therein are
outstanding for the purpose of any such determination.
Section 10.05. Right of Revocation of Action Taken. At any time
prior to (but not after) the evidencing to the Indenture Trustee, as provided
in Section 10.01, of the taking of any action by the Holders of the percentage
in aggregate principal amount of the Certificates specified in this Indenture
in connection with such action, any Holder of a Certificate, the serial number
of which is shown by the evidence to be included among the serial numbers of
the Certificates the Holders of which have consented to such action, may, by
filing written notice at the Corporate Trust Department and upon proof of
holding as provided in this Article, revoke such action so far as concerns
such Certificate. Except as aforesaid, any such action taken by the Holder
shall be conclusive and binding upon such Holder and upon all future Holders
and owners of such Certificate and of any Certificates issued in exchange or
substitution therefor, irrespective of whether or not any notation in regard
thereto is made upon any such Certificate or otherwise. Any action taken by
the Holders of the percentage in aggregate principal amount of the
Certificates specified in this Indenture in connection with such action shall
be conclusively binding upon the Owner Trustee, the Indenture Trustee and the
Holders of all the Certificates.
Section 10.06. ERISA. Any Person, other than the Subordination
Agent, who is acquiring the Certificates will be deemed to represent and
warrant that (i) no assets of an employee benefit plan subject to Title I of
ERISA or an individual retirement account or plan subject to Section 4975 of
the Code, or any trust established under any such plan or account, have been
used to acquire or hold any of the Certificates, or (ii) that one or more
administrative or statutory exemptions from the prohibited transaction rules
under Section 406 of ERISA and Section 4975 of the Code applies to its
purchase and holding of the Certificates such that its purchase and holding of
the Certificates will not result in a non-exempt prohibited transaction under
Section 406 of ERISA and Section 4975 of the Code.
ARTICLE XI
INDEMNIFICATION OF INDENTURE
TRUSTEE BY OWNER TRUSTEE
The Owner Trustee, not individually but solely in its capacity as
Owner Trustee under the Trust Agreement, hereby agrees, whether or not any of
the transactions contemplated hereby shall be consummated, to assume liability
for, and does hereby indemnify, protect, save and keep harmless the Indenture
Trustee, in its individual capacity, and its successors, assigns, agents and
servants solely from the Lessor's Estate, with respect to the claims of the
Indenture Trustee for payment or reimbursement under Section 9.11 hereof and
from and against any and all liabilities, obligations, losses, damages,
penalties, taxes (excluding any taxes payable by the Indenture Trustee on or
measured by any compensation received by the Indenture Trustee for its
services under this Indenture and any taxes excluded from the Lessee's
indemnity obligation under Section 8.01(b) of the Participation Agreement),
claims, actions, suits, costs, expenses or disbursements (including legal fees
and expenses) of any kind and nature whatsoever which may be imposed on,
incurred by or asserted against the Indenture Trustee (whether or not also
agreed to be indemnified against by any other person under any other document)
in any way relating to or arising out of this Indenture, or any other
Indenture Documents or the enforcement of any of the terms of any thereof, or
in any way relating to or arising out of the manufacture, purchase,
acceptance, nonacceptance, rejection, ownership, delivery, lease, possession,
use, operation, condition, sale, return or other disposition of the Aircraft or
any Engine (including, without limitation, latent and other defects, whether
or not discoverable, and any claim for patent, trademark or copyright
infringement), or in any way relating to or arising out of the administration
of the Trust Indenture Estate or the action or inaction of the Indenture
Trustee hereunder, except only (a) in the case of willful misconduct or gross
negligence of the Indenture Trustee in the performance of its duties
hereunder, (b) as may result from the inaccuracy of any representation or
warranty of the Indenture Trustee in the Participation Agreement, (c) as
otherwise provided in Section 9.02(c) hereof or (d) as otherwise excluded by
the terms of Article 8 or Article 9 of the Participation Agreement from the
Lessee's general indemnity or general tax indemnity to the Indenture Trustee
under said Article; provided that so long as the Lease is in effect, the
Indenture Trustee shall not make any claim under this Article XI for any claim
or expense indemnified by the Lessee under the Participation Agreement without
first making demand on the Lessee for payment of such claim or expense. The
Indenture Trustee shall be entitled to indemnification, from the Trust
Indenture Estate, for any liability, obligation, loss, damage, penalty, claim,
action, suit, cost, expense or disbursement indemnified against pursuant to
this Article XI to the extent not reimbursed by the Lessee or others, but
without releasing any of them from their respective agreements of
reimbursement; and to secure the same the Indenture Trustee shall have a prior
Lien on the Trust Indenture Estate. The indemnities contained in this Article
XI shall survive the termination of this Indenture and the resignation or
removal of the Indenture Trustee. Upon payment in full by the Owner Trustee
of any indemnity pursuant to this Article XI, the Owner Trustee shall, so long
as no Indenture Event of Default shall have occurred and be continuing, be
subrogated to the rights of the Indenture Trustee, if any, in respect of the
matter as to which the indemnity was paid.
ARTICLE XII
SUCCESSOR TRUSTEES
Section 12.01. Notice of Successor Owner Trustee. In the case of any
appointment of a successor to the Owner Trustee pursuant to the Trust
Agreement or any merger, conversion, consolidation or sale of substantially
all of the corporate trust business of the Owner Trustee pursuant to the Trust
Agreement, the successor Owner Trustee shall give prompt written notice
thereof to the Indenture Trustee.
Section 12.02. Resignation and Removal of Indenture Trustee;
Appointment of Successor. (a) The Indenture Trustee or any successor thereto
may resign at any time without cause by giving at least 30 days' prior written
notice to the Owner Trustee, the Owner Participant, the Lessee and each
Holder, such resignation to be effective upon the acceptance of the
trusteeship by a successor Indenture Trustee. In addition, the Majority in
Interest of the Certificate Holders or the Owner Trustee, with the consent of
the Lessee and the Majority in Interest of the Certificate Holders may at any
time remove the Indenture Trustee without cause by an instrument in writing
delivered to the Lessee, the Owner Trustee, the Owner Participant, and the
Indenture Trustee, and the Indenture Trustee shall promptly notify each Holder
thereof of such action in writing, such removal to be effective upon the
acceptance of the trusteeship by a successor Indenture Trustee. In the case
of the resignation or removal of the Indenture Trustee, the Majority in
Interest of the Certificate Holders, or the Owner Trustee, with the consent of
the Lessee and the Majority in Interest of the Certificate Holders, may
appoint a successor Indenture Trustee by an instrument signed by such Holders.
If a successor Indenture Trustee shall not have been appointed within 30 days
after such notice of resignation or removal, the Indenture Trustee, the Owner
Trustee, the Lessee, the Owner Participant, or any Holder may apply to any
court of competent jurisdiction to appoint a successor Indenture Trustee to
act until such time, if any, as a successor shall have been appointed as
provided above. The successor Indenture Trustee so appointed by such court
shall immediately and without further act be superseded by any successor
Indenture Trustee appointed as provided above.
(b) In case at any time any of the following shall occur:
(i) the Indenture Trustee shall cease to be eligible in accordance
with the provisions of Section 12.03 hereof and shall fail to resign after
written request therefor by the Owner Trustee or by any Holder; or
(ii) the Indenture Trustee shall become incapable of acting, or shall
be adjudged a bankrupt or insolvent, or a receiver or liquidator of the
Indenture Trustee or of its property shall be appointed, or any public
officer shall take charge or control of the Indenture Trustee or of its
property or affairs for the purpose of rehabilitation, conservation or
liquidation;
then the Owner Trustee may remove the Indenture Trustee and, with the consent
of the Lessee, appoint a successor trustee by written instrument, in
duplicate, executed by a Responsible Officer of the Owner Trustee, one copy of
which instrument shall be delivered to the Indenture Trustee so removed and
one copy to the successor trustee, or, subject to the provisions of Section
7.13 hereof, any Holder who has been a bona fide Holder 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 Indenture Trustee
and the appointment of a successor trustee. Such court may thereupon, after
such notice, if any, as it may deem proper and prescribe, remove the Indenture
Trustee and appoint a successor trustee, which removal and appointment shall
become effective upon acceptance of appointment by the successor trustee as
provided in Section 12.04 hereof. The successor Indenture Trustee so
appointed by such court shall immediately and without further act be
superseded by any successor Indenture Trustee appointed as provided above
within one year from the date of appointment by such court.
Section 12.03. Persons Eligible for Appointment as Indenture
Trustee. There shall at all times be an Indenture Trustee hereunder which
shall be (i)(x) a bank or trust company organized and doing business under the
laws of the United States of America or any state or the District of Columbia
having a combined capital and surplus of at least $100,000,000 or (y) a bank
or trust company whose obligations hereunder are fully guaranteed by a direct
or indirect parent thereof having a combined capital and surplus of at least
$100,000,000 and (ii) a Citizen of the United States authorized under
applicable law to exercise corporate trust powers and subject to supervision of
examination by Federal, state or District of Columbia authority. If such
corporation publishes reports of condition at least annually, pursuant to law
or to the requirements of the aforesaid supervising or examining authority,
then for the purposes of this Section, 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 condition so published. In case at any
time the Indenture Trustee shall cease to be eligible in accordance with the
provisions of this Section, the Indenture Trustee shall resign immediately in
the manner and with the effect specified in Section 12.02 hereof.
Section 12.04. Acceptance of Appointment by Successor Trustee. Any
successor trustee appointed as provided in Section 12.02 hereof shall execute
and deliver to the Owner Trustee, the Lessee, and to its predecessor trustee
an instrument accepting such appointment hereunder, in form and substance
reasonably satisfactory to the Owner Trustee, and thereupon the resignation or
removal of the predecessor trustee shall become effective and such successor
trustee, without any further act, deed or conveyance, shall become vested with
all rights, powers, duties and obligations of its predecessor hereunder, with
like effect as if originally named as trustee herein; but, nevertheless, on
the written request of the Owner Trustee or of the successor trustee, upon
payment of its charges then unpaid, the trustee ceasing to act shall, subject
to Section 14.04 hereof, pay over to the successor trustee all moneys at the
time held by it hereunder and shall execute and deliver an instrument
transferring to such successor trustee all such rights, powers, duties and
obligations. Upon request of any such successor trustee, the Owner Trustee
shall execute any and all instruments in writing for more fully and certainly
vesting in and confirming to such successor trustee all such rights and
powers. Any trustee ceasing to act shall, nevertheless, retain a prior claim
upon all property or funds held or collected by such trustee to secure any
amounts then due it pursuant to the provisions of Article XI hereof.
No successor trustee shall accept appointment as provided in this
Section 12.04 unless at the time of such acceptance such successor trustee
shall be eligible under the provisions of Section 12.03 hereof.
Upon acceptance of appointment by a successor trustee as provided in
this Section 12.04, the successor trustee shall mail notice thereof by
first-class mail to the Holders at their last addresses as they shall appear
in the Register, and shall mail a copy of such notice to the Lessee and the
Owner Trustee. If the acceptance of appointment is substantially
contemporaneous with the resignation, then the notice called for by the
preceding sentence may be combined with the notice called for by Section 12.02
hereof.
Section 12.05. Merger, Conversion, Consolidation or Succession to
Business of Indenture Trustee. Any corporation into which the Indenture
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 Indenture Trustee shall be a party, or any corporation succeeding to
the corporate trust business of the Indenture Trustee, shall be the successor
to the Indenture Trustee hereunder, provided that, anything herein to the
contrary notwithstanding, such corporation shall be eligible under the
provisions of Section 12.03 hereof, without the execution or filing of any
paper or any further act on the part of any of the parties hereto.
In case at the time such successor to the Indenture Trustee shall
succeed to the trusts created by this Indenture any of the Certificates shall
have been authenticated but not delivered, any such successor to the Indenture
Trustee may adopt the certificate of authentication of any predecessor
Indenture Trustee and deliver such Certificates so authenticated; and, in case
at that time any of the Certificates shall not have been authenticated, any
successor to the Indenture Trustee may authenticate such Certificates either
in the name of any predecessor hereunder or in the name of the successor
Indenture Trustee; and in all such cases such certificate shall have the full
force which it is anywhere in the Certificates or in this Indenture provided
that the certificate of the Indenture Trustee shall have; provided, that the
right to adopt the certificate of authentication of any predecessor Indenture
Trustee or to authenticate Certificates in the name of any predecessor
Indenture Trustee shall apply only to its successor or successors by merger,
conversion or consolidation.
Section 12.06. Appointment of Separate Trustees. (a) At any time or
times, for the purpose of meeting any legal requirements of any jurisdiction
in which any part of the Trust Indenture Estate may at the time be located or
in which any action of the Indenture Trustee may be required to be performed
or taken, the Indenture Trustee, by an instrument in writing signed by it, may
appoint one or more individuals or corporations to act as a separate trustee
or separate trustees or co-trustee, acting jointly with the Indenture Trustee,
of all or any part of the Trust Indenture Estate, to the full extent that
local law makes it necessary for such separate trustee or separate trustees or
co-trustee acting jointly with the Indenture Trustee to act.
(b) The Indenture Trustee and, at the request of the Indenture
Trustee, the Owner Trustee, shall execute, acknowledge and deliver all such
instruments as may be required by the legal requirements of any jurisdiction
or by any such separate trustee or separate trustees or co-trustee for the
purpose of more fully confirming such title, rights or duties to such separate
trustee or separate trustees or co-trustee. Upon the acceptance in writing of
such appointment by any such separate trustee or separate trustees or
co-trustee, it, he or they shall be vested with such title to the Trust
Indenture Estate or any part thereof, and with such rights, powers, duties and
obligations, as shall be specified in the instrument of appointment, and such
rights, powers, duties and obligations shall be conferred or imposed upon and
exercised or performed by the Indenture Trustee, or the Indenture Trustee and
such separate trustee or separate trustees or co-trustee jointly with the
Indenture Trustee subject to all the terms of this Indenture, except to the
extent that under any law of any jurisdiction in which any particular act or
acts are to be performed the Indenture Trustee shall be incompetent or
unqualified to perform such act or acts, in which event such rights, powers,
duties and obligations shall be exercised and performed by such separate
trustee or separate trustees or co-trustee, as the case may be. Any separate
trustee or separate trustees or co-trustee may, at any time by an instrument
in writing, constitute the Indenture Trustee its or his attorney-in-fact and
agent with full power and authority to do all acts and things and to exercise
all discretion on its or his behalf and in its or his name. In case any such
separate trustee or co-trustee shall die, become incapable of acting, resign
or be removed, the title to the Trust Indenture Estate and all assets,
property, rights, powers, duties and obligations and duties of such separate
trustee or co-trustee shall, so far as permitted by law, vest in and be
exercised by the Indenture Trustee, without the appointment of a successor to
such separate trustee or co-trustee unless and until a successor is appointed.
(c) All provisions of this Indenture which are for the benefit of
the Indenture Trustee (including without limitation Article XI hereof) shall
extend to and apply to each separate trustee or co-trustee appointed pursuant
to the foregoing provisions of this Section 12.06.
(d) Every additional trustee and separate trustee hereunder shall,
to the extent permitted by law, be appointed and act and the Indenture Trustee
shall act, subject to the following provisions and conditions:
(i) all powers, duties, obligations and rights conferred upon the
Indenture Trustee in respect of the receipt, custody, investment and
payment of moneys shall be exercised solely by the Indenture Trustee;
(ii) all other rights, powers, duties and obligations conferred or
imposed upon the Indenture Trustee shall be conferred or imposed and
exercised or performed by the Indenture Trustee and such additional trustee
or trustees and separate trustee or trustees jointly except to the extent
that under any law of any jurisdiction in which any particular act or acts
are to be performed, the Indenture Trustee shall be incompetent or
unqualified to perform such act or acts, in which event such rights,
powers, duties and obligations (including the holding of title to the Trust
Indenture Estate in any such jurisdiction) shall be exercised and performed
by such additional trustee or trustees or separate trustee or trustees;
(iii) no power hereby given to, or exercisable by, any such additional
trustee or separate trustee shall be exercised hereunder by such additional
trustee or separate trustee except jointly with, or with the consent of,
the Indenture Trustee; and
(iv) no trustee hereunder shall be liable either personally or in its
capacity as such trustee, by reason of any act or omission of any other
trustee hereunder.
If at any time the Indenture Trustee shall deem it no longer necessary or
prudent in order to conform to any such law, the Indenture Trustee shall
execute and deliver an indenture supplemental hereto and all other instruments
and agreements necessary or proper to remove any additional trustee or
separate trustee.
(e) Any request, approval or consent in writing by the Indenture
Trustee to any additional trustee or separate trustee shall be sufficient
warrant to such additional trustee or separate trustee, as the case may be, to
take such action as may be so requested, approved or consented to.
(f) Notwithstanding any other provision of this Section 12.06, the
powers of any additional trustee or separate trustee shall not exceed those of
the Indenture Trustee hereunder.
ARTICLE XIII
SUPPLEMENTS AND AMENDMENTS TO THIS
TRUST INDENTURE AND OTHER DOCUMENTS
Section 13.01. Supplemental Indentures Without Consent of Holders.
The Owner Trustee (when authorized by the Owner Participant) and the Indenture
Trustee, without consent of the Holders, may enter into an indenture or
indentures supplemental hereto for one or more of the following purposes:
(a) to convey, transfer, assign, mortgage or pledge any property or
assets to the Indenture Trustee as security for the Certificates;
(b) to evidence the succession of another corporation to the Owner
Trustee or successive successions, and the assumption by the successor
corporation of the covenants, agreements and obligations of the Owner
Trustee herein and in the Certificates;
(c) to add to the covenants of the Owner Trustee such further
covenants, restrictions, conditions or provisions as it and the Indenture
Trustee shall consider to be for the protection of the Holders, and to make
the occurrence, or the occurrence and continuance, of a default in any such
additional covenants, restrictions, conditions or provisions an Indenture
Event of Default permitting the enforcement of all or any of the several
remedies provided herein; provided, that in respect of any such additional
covenant, restriction, condition or provision such supplemental indenture
may provide for a particular period of grace after default (which period
may be shorter or longer than that allowed in the case of other defaults)
or may provide for an immediate enforcement upon such an Indenture Event of
Default or may limit the remedies available to the Indenture Trustee upon
such an Indenture Event of Default or may limit the right of not less than
the Majority in Interest of Certificate Holders to waive such an Indenture
Event of Default;
(d) to surrender any right or power conferred herein upon the Owner
Trustee or the Owner Participant;
(e) to cure any ambiguity or to correct or supplement any provision
contained herein or in any supplemental indenture which may be defective or
inconsistent with any other provision contained herein or in any
supplemental indenture; or to make such other provisions in regard to
matters or questions arising under this Indenture or under any supplemental
indenture as the Owner Trustee may deem necessary or desirable and which
shall not adversely affect the interests of the Holders;
(f) to correct or amplify the description of any property at any
time subject to the Lien of this Indenture or better to assure, convey and
confirm unto the Indenture Trustee any property subject or required to be
subject to the Lien of this Indenture or to subject Replacement Airframe or
Replacement Engines to the Lien of this Indenture in accordance with the
provisions hereof or with the Lease or to release from the Lien of this
Indenture property that has been substituted on or removed from the
Aircraft as contemplated in Section 3.07 hereof; provided that supplements
to this Indenture entered into for the purpose of subjecting Replacement
Airframe or Replacement Engines to the Lien of this Indenture need only be
executed by the Owner Trustee and the Indenture Trustee;
(g) to provide for the issuance under this Indenture of Certificates
in coupon form (including Certificates registrable as to principal only)
and to provide for exchangeability of such Certificates with Certificates
issued hereunder in fully registered form, and to make all appropriate
changes for such purpose;
(h) to effect the re-registration of the Aircraft pursuant to
Section 6.03(b) of the Participation Agreement; and
(i) to add, eliminate or change any provision hereunder so long as
such action shall not adversely affect the interests of the Holders.
The Indenture Trustee is hereby authorized to join in the execution
of any such supplemental indenture, to make any further appropriate agreements
and stipulations which may be contained therein and to accept the conveyance,
transfer, assignment, mortgage or pledge of any property thereunder, but the
Indenture Trustee shall not be obligated to enter into any such supplemental
indenture which adversely affects the Indenture Trustee's own rights, duties
or immunities under this Indenture or otherwise.
Any such supplemental indenture may be executed without the consent of
the Holders of Outstanding Certificates, notwithstanding any of the provisions
of Section 13.02 hereof.
Section 13.02. Supplemental Indentures With Consent of Holders.
With the consent (evidenced as provided in Article X) of the Majority in
Interest of Certificate Holders, the Owner Trustee (when authorized by the
Owner Participant) and the Indenture Trustee may, from time to time and at any
time, enter into an indenture or indentures supplemental hereto for the
purpose of adding any provisions to or changing in any manner or eliminating
any of the provisions of this Indenture or of any supplemental indenture or of
modifying in any manner the rights of the Holders; provided, however, that,
without the consent of each and every Holder and each Liquidity Provider, no
such amendment of or supplement to this Indenture or any indenture
supplemental hereto, or modification of the terms of, or consent under, any
thereof, shall (a) modify any of the provisions of Section 7.11 hereof or this
Section 13.02, (b) reduce the amount or extend the time of payment of any
amount owing or payable under any Certificate or reduce the interest payable
on any Certificate (except that only the consent of the Holder shall be
required for any decrease in any amounts of or the rate of interest payable on
such Certificate or any extension for the time of payment of any amount
payable under such Certificate), or alter or modify the provisions of Article
V hereof with respect to the order of priorities in which distributions
thereunder shall be made as among Holders of different Series of Certificates
or as between the Holder and the Owner Trustee or the Owner Participant or
with respect to the amount or time of payment of any such distribution, or
alter or modify the circumstances under which a Make-Whole Premium shall be
payable, or alter the currency in which any amount payable under any
Certificate is to be paid, or impair the right of any Holder to commence legal
proceedings to enforce a right to receive payment hereunder, (c) reduce,
modify or amend any indemnities in favor of any Holder or in favor of or to be
paid by the Owner Participant (except as consented to by each Person adversely
affected thereby), or (d) create or permit the creation of any Lien on the
Trust Indenture Estate or any part thereof prior to or pari passu with the
Lien of this Indenture, except as expressly permitted herein, or deprive any
Holder of the benefit of the Lien of this Indenture on the Trust Indenture
Estate, except as provided in Section 7.02 hereof or in connection with the
exercise of remedies under Article VII. This Section 13.02 shall not apply to
any indenture or indentures supplemental hereto permitted by, and complying
with the terms of, Section 13.06 hereof.
Upon the request of the Owner Trustee (at the direction of the Owner
Participant) and upon the filing with the Indenture Trustee of evidence of the
consent of Holders and other documents, if any, required by Section 10.01, the
Indenture Trustee shall join with the Owner Trustee and the Lessee in the
execution of such supplemental indenture unless such supplemental indenture
affects the Indenture Trustee's own rights, duties or immunities under this
Indenture or otherwise, in which case the Indenture Trustee may in its
discretion, but shall not be obligated to, enter into such supplemental
indenture.
It shall not be necessary for the consent of the Holders under this
Section to approve the particular form of any proposed supplemental indenture,
but it shall be sufficient if such consent shall approve the substance
thereof.
Promptly after the execution by the Owner Trustee, the Indenture
Trustee and the Lessee of any supplemental indenture pursuant to the
provisions of this Section, the Indenture Trustee shall mail a notice thereof
by first-class mail to the Holders at their addresses as they shall appear on
the registry books of the Registrar, setting forth in general terms the
substance of such supplemental indenture. Any failure of the Indenture
Trustee to mail such notice, or any defect therein, shall not, however, in any
way impair or affect the validity of any such supplemental indenture.
Section 13.03. Effect of Supplemental Indenture. Upon the execution
of any supplemental indenture pursuant to the provisions hereof, this
Indenture shall be and be deemed to be modified and amended in accordance
therewith and the respective rights, limitations of rights, obligations,
duties and immunities under this Indenture of the Indenture Trustee, the Owner
Trustee, the Lessee and the Holders shall thereafter be determined, exercised
and enforced hereunder subject in all respects to such modifications and
amendments, and all the terms and conditions of any such supplemental
indenture shall be and be deemed to be part of the terms and conditions of
this Indenture for any and all purposes.
Section 13.04. Documents to Be Given to Indenture Trustee. The
Indenture Trustee, subject to the provisions of Sections 9.02 and 9.03, may
receive an Officer's Certificate and an Opinion of Counsel as conclusive
evidence that any such supplemental indenture complies with the applicable
provisions of this Indenture.
Section 13.05. Notation on Certificates in Respect of Supplemental
Indentures. Certificates authenticated and delivered after the execution of
any supplemental indenture pursuant to the provisions of this Article may bear
a notation in form approved by the Indenture Trustee as to any matter provided
for by such supplemental indenture. If the Owner Trustee or the Indenture
Trustee shall so determine, new Certificates so modified as to conform, in the
opinion of the Owner Trustee and the Indenture Trustee, to any modification of
this Indenture contained in any such supplemental indenture may be prepared by
the Owner Trustee, authenticated by the Indenture Trustee and delivered in
exchange for the Outstanding Certificates.
Section 13.06. No Request Necessary for Lease Supplement or Indenture
and Security Agreement Supplement. Notwithstanding anything contained in
Section 13.02 hereof, no written request or consent of the Indenture Trustee,
any Holder or the Owner Participant pursuant to Section 13.02 hereof shall be
required to enable the Owner Trustee to enter into any supplement to the Lease
with the Lessee in accordance with the terms and conditions of the Lease to
subject a Replacement Airframe or Replacement Engine thereto or to execute and
deliver an Indenture and Security Agreement Supplement pursuant to the terms
hereof.
Section 13.07. Notices to Liquidity Providers. Any request made to
any Holder for consent to any amendment, supplement or waiver pursuant to
Section 7.11, 8.01 or this Article XIII shall be promptly furnished by the
Indenture Trustee to each Liquidity Provider.
ARTICLE XIV
SATISFACTION AND DISCHARGE OF INDENTURE;
UNCLAIMED MONEYS
Section 14.01. Satisfaction and Discharge of Indenture; Termination
of Indenture. If at any time after (a) the Owner Trustee shall have paid or
caused to be paid the principal of and interest on all the Certificates
outstanding hereunder, as and when the same shall have become due and payable,
or (b) the Owner Trustee shall have delivered to the Indenture Trustee for
cancellation all Certificates theretofore authenticated (other than any
Certificates which shall have been destroyed, lost or stolen and which shall
have been replaced or paid as provided in Section 2.07 hereof) or (c) (i) all
such Certificates not theretofore delivered to the Indenture Trustee for
cancellation shall have become due and payable, or are by their terms to
become due and payable within one year or are to be called for prepayment
within one year under arrangements satisfactory to the Indenture Trustee for
the giving of notice of prepayment by the Indenture Trustee in the name and at
the expense of the Owner Trustee, and (ii) the Owner Trustee shall have
irrevocably deposited or caused to be deposited with the Indenture Trustee as
trust funds the entire amount in cash (other than moneys repaid by the
Indenture Trustee or any paying agent to the Owner Trustee in accordance with
Section 14.04 hereof) or Government obligations maturing as to principal and
interest in such amounts and at such times as will insure the availability of
cash sufficient to pay at maturity all such Certificates not theretofore
delivered to the Indenture Trustee for cancellation, including principal and
interest due or to become due to such date of maturity as the case may be, and
if, in any such case, the Owner Trustee shall also pay or cause to be paid all
other sums then payable hereunder by the Owner Trustee, then this Indenture
shall cease to be of further effect (except in the case of (c) above as to (A)
rights of registration of transfer and exchange, and the Owner Trustee's right
of optional prepayment pursuant to Section 6.02(a)(ii) hereof, (B)
substitution of mutilated, defaced, destroyed, lost or stolen Certificates,
(C) rights of Holders to receive payments of principal thereof and interest
thereon, upon the original stated due dates therefor (but not upon
acceleration), (D) the rights, obligations, indemnities and immunities of the
Indenture Trustee hereunder and (E) the rights of the Holders as beneficiaries
hereof with respect to the property so deposited with the Indenture Trustee
payable to all or any of them), and the Indenture Trustee, on demand of the
Owner Trustee accompanied by an Officer's Certificate and an Opinion of
Counsel (covering such matters reasonably requested by, and in form and
substance reasonably satisfactory to, the Indenture Trustee) and at the cost
and expense of the Owner Trustee, shall execute proper instruments
acknowledging such satisfaction of and discharging this Indenture. The Owner
Trustee agrees to reimburse and indemnify the Indenture Trustee for any costs
or expenses thereafter reasonably and properly incurred and to compensate the
Indenture Trustee for any services thereafter reasonably and properly rendered
by the Indenture Trustee in connection with this Indenture or the
Certificates.
Upon (or at any time after) payment in full to the Indenture Trustee,
as trust funds, of the principal of and interest on and Make-Whole Premium, if
any, and all other amounts due hereunder and under all Certificates and
provided that there shall then be no other amounts due to the Indenture
Trustee hereunder or under the Participation Agreement or otherwise secured
hereby, the Owner Trustee shall direct the Indenture Trustee to execute and
deliver to or as directed in writing by the Owner Trustee an appropriate
instrument releasing the Aircraft from the Lien of this Indenture and
releasing the Indenture Documents from the assignment thereof hereunder, and
the Indenture Trustee shall execute and deliver such instrument as aforesaid
and, at the Owner Trustee's expense, will execute and deliver such other
instruments or documents as may be reasonably requested by the Owner Trustee
to give effect to such release; provided, however, that this Indenture and the
trusts created hereby shall terminate earlier and this Indenture shall be of
no further force or effect upon any sale or other final disposition by the
Indenture Trustee of all property forming a part of the Trust Indenture Estate
and the final distribution by the Indenture Trustee of all moneys or other
property or proceeds constituting part of the Trust Indenture Estate in
accordance with the terms hereof. Except as aforesaid otherwise provided, this
Indenture and the trusts created hereby shall continue in full force and
effect in accordance with the terms hereof.
Section 14.02. Application by Indenture Trustee of Funds Deposited
for Payment of Certificates. Subject to Section 14.04 hereof, all moneys
deposited with the Indenture Trustee pursuant to Section 14.01 hereof shall be
held in trust and applied by it to the prompt payment, either directly or
through any Paying Agent, to the Holders of the particular Certificates for
the payment or prepayment of which such moneys have been deposited with the
Indenture Trustee, of all sums due and to become due thereon for principal,
interest and Make-Whole Premium, if any, but such money need not be segregated
from other funds except to the extent required by law.
Section 14.03. Repayment of Moneys Held by Paying Agent. Upon the
satisfaction and discharge of this Indenture all moneys then held by any
Paying Agent under the provisions of this Indenture shall, upon demand of the
Owner Trustee, be repaid to it or paid to the Indenture Trustee and thereupon
such Paying Agent shall be released from all further liability with respect to
such moneys.
Section 14.04. Transfer of Moneys Held by Indenture Trustee and
Paying Agent Unclaimed for Two Years and Eleven Months. Any moneys deposited
with or paid to the Indenture Trustee or any Paying Agent for the payment of
the principal of or interest or Make-Whole Premium on any Certificate and not
applied but remaining unclaimed for two years and eleven months after the date
upon which such principal, interest or Make-Whole Premium shall have become
due and payable, shall, unless otherwise required by mandatory provisions of
applicable escheat or abandoned or unclaimed property law, be paid to the
Owner Trustee (or, if the Trust Agreement shall no longer be in effect, to the
Owner Participant) by the Indenture Trustee or such Paying Agent and the
Holder of such Certificate, as a general unsecured creditor, shall, unless
otherwise required by mandatory provisions of applicable escheat or abandoned
or unclaimed property laws, thereafter look only to the Owner Trustee (or the
Owner Participant) for any payment which such Holder may be entitled to
collect, and all liability of the Indenture Trustee, or any Paying Agent with
respect to such moneys shall thereupon cease.
ARTICLE XV
MISCELLANEOUS
Section 15.01. Capacity in Which Acting. Each of SSB (or its
permitted successors or assigns) and the Indenture Trustee acts hereunder not
in its individual capacity but solely as trustee except as expressly provided
herein and in the other Operative Documents, and, in the case of SSB (or its
permitted successors or assigns), in the Trust Agreement.
Section 15.02. No Legal Title to Trust Indenture Estate in Holders.
No Holder shall have legal title to any part of the Trust Indenture Estate.
No transfer, by operation of law or otherwise, of any Certificate or other
right, title and interest of any Holder in and to the Trust Indenture Estate
or hereunder shall operate to terminate this Indenture or entitle such Holder
or any successor or transferee of such Holder to an accounting or to the
transfer to it of legal title to any part of the Trust Indenture Estate.
Section 15.03. Sale of Trust Indenture Estate by Indenture Trustee is
Binding. Any sale or other conveyance of all or any part of the Trust
Indenture Estate by the Indenture Trustee made pursuant to the terms of this
Indenture or of the Lease shall bind the Lessee, the Owner Trustee, the
Holders and the Owner Participant and shall be effective to transfer or convey
all right, title and interest of the Indenture Trustee, the Owner Trustee, the
Owner Participant and such Holders therein and thereto. No purchaser or other
grantee shall be required to inquire as to the authorization, necessity,
expediency or regularity of such sale or conveyance or as to the application
of any sale or other proceeds with respect thereto by the Indenture Trustee.
Section 15.04. Indenture for Benefit of Owner Trustee, Indenture
Trustee, Owner Participant, Holders and Liquidity Providers. Nothing in this
Indenture, whether express or implied, shall be construed to give to any
person other than SSB, the Owner Trustee, the Lessee, the Indenture Trustee,
as trustee and in its individual capacity, the Owner Participant, each
Liquidity Provider and the Holders any legal or equitable right, remedy or
claim under or in respect of this Indenture. Upon termination of this
Indenture pursuant to Article XIV hereof, the Indenture Trustee in connection
with the satisfaction of the Indenture shall return to the Owner Trustee all
property (and related documents and instruments) constituting or evidencing
the Trust Indenture Estate.
Section 15.05. No Action Contrary to the Lessee's Rights Under the
Lease. Notwithstanding any of the provisions of this Indenture or the Trust
Agreement to the contrary, so long as no Event of Default shall have occurred
and be continuing, neither the Indenture Trustee nor the Owner Trustee will
take any affirmative acts that interfere with the peaceful and quiet
possession and enjoyment of the Aircraft by the Lessee.
Section 15.06. Notices. Unless otherwise expressly specified or
permitted by the terms hereof, all notices, requests, demands, authorizations,
directions, consents, waivers or documents provided or permitted by this
Indenture to be made, given, furnished or filed shall be in writing, mailed by
certified mail, postage prepaid, or by confirmed telecopy, and (a) if to the
Owner Trustee, addressed to it c/o State Street Bank and Trust Company, Two
International Place, 4th Floor, Boston, Massachusetts 02110 (telephone: (617)
664-5526, facsimile: (617) 664-5371), Attention: Corporate Trust Department
(with a copy to the Owner Participant at the address provided for notice
pursuant to Section 14.01 of the Participation Agreement), (b) if personally
delivered to the Indenture Trustee, addressed to it at its office at 79 South
Main Street, Salt Lake City, Utah 84111 (telephone: (801) 246-5630, facsimile:
(801) 246-5053), Attention: Corporate Trust Department or (c) if to the Owner
Participant, a Liquidity Provider or the Lessee, addressed to such party at
such address as such party shall have furnished by notice to the Owner Trustee
and the Indenture Trustee, or, until an address is so furnished, addressed to
the address of such party if any, set forth in Section 14.01 of the
Participation Agreement. Any party hereto may change the address to which
notices to such party will be sent by giving notice of such change to the
other parties to this Indenture.
Where this Indenture provides for notice to Holders, such notice
shall be sufficiently given (unless otherwise expressly provided herein) if in
writing and mailed, first-class postage prepaid, to each Holder entitled
thereto, at such Holder's last address as it appears in the Register. In any
case where notice to Holders is given by mail, neither the failure to mail
such notice, nor any defect in any notice so mailed, to any particular Holder
shall affect the sufficiency of such notice with respect to other Holders.
Where this Indenture provides for notice in any manner, such notice may be
waived in writing by the person entitled to receive such notice, either before
or after the event, and such waiver shall be the equivalent of such notice.
Waivers of notice by Holders shall be filed with the Indenture Trustee, but
such filing shall not be a condition precedent to the validity of any action
taken in reliance upon such waiver.
In case, by reason of the suspension of or irregularities in regular
mail service, it shall be impracticable to mail notice to the Owner Trustee
and Holders when such notice is required to be given pursuant to any provision
of this Indenture, then any manner of giving such notice as shall be
satisfactory to the Indenture Trustee shall be deemed to be a sufficient
giving of such notice.
Section 15.07. Officer's Certificates and Opinions of Counsel;
Statements to Be Contained Therein. Upon any application or demand by the
Lessee or the Owner Trustee to the Indenture Trustee to take any action under
any of the provisions of this Indenture, the Lessee or the Owner Trustee, as
the case may be, shall furnish to the Indenture Trustee upon request (a) an
Officer's Certificate stating that all conditions precedent provided for in
this Indenture relating to the proposed action have been complied with and
that the proposed action is in conformity with the requirements of this
Indenture, and (b) 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 demand as to which the furnishing
of such documents is specifically required by any provision of this Indenture
relating to such particular application or demand, no additional certificate
or opinion need be furnished.
Any certificate, statement or opinion of an officer of SSB may be
based, insofar as it relates to legal matters, upon a certificate or opinion
of or representations by counsel, unless such officer knows that the
certificate or opinion or representations with respect to the matters upon
which his certificate, statement or opinion may be based as aforesaid are
erroneous, or in the exercise of reasonable care should know that the same are
erroneous. Any certificate, statement or opinion of counsel may be based,
insofar as it relates to factual matters information with respect to which is
in the possession of the Lessee or SSB, upon the certificate, statement or
opinion of or representations by an officer or officers of the Lessee or SSB,
as the case may be, unless such counsel knows that the certificate, statement
or opinion or representations with respect to the matters upon which his
certificate, statement or opinion may be based as aforesaid are erroneous, or
in the exercise of reasonable care should know that the same are erroneous.
Any certificate, statement or opinion of an officer of the Lessee or
SSB or of counsel thereto may be based, insofar as it relates to accounting
matters, upon a certificate or opinion of or representations by an accountant
or firm of accountants employed by the Lessee or the Owner Trustee, as the
case may be, unless such officer or counsel, as the case may be, knows that
the certificate or opinion or representations with respect to the accounting
matters upon which his certificate, statement or opinion may be based as
aforesaid are erroneous, or in the exercise of reasonable care should know
that the same are erroneous.
Any certificate or opinion of any independent firm of public
accountants filed with the Indenture Trustee shall contain a statement that
such firm is independent.
Section 15.08. Severability. Any provision of this Indenture which
is prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and any
such prohibition or unenforceability in any jurisdiction shall not invalidate
or render unenforceable such provision in any other jurisdiction.
Section 15.09. No Oral Modifications or Continuing Waivers. No
terms or provisions of this Indenture or the Certificates may be changed,
waived, discharged or terminated orally, but only by an instrument in writing
signed by the party or other person against whom enforcement of the change,
waiver, discharge or termination is sought; and any waiver of the terms hereof
or of any Certificate shall be effective only in the specific instance and for
the specific purpose given.
Section 15.10. Successors and Assigns. All covenants and agreements
contained herein shall be binding upon, and inure to the benefit of, each of
the parties hereto and the successors and permitted assigns of each, all as
herein provided. Any request, notice, direction, consent, waiver or other
instrument or action by any Holder shall bind the successors and assigns of
such Holder. This Indenture and the Trust Indenture Estate shall not be
affected by any amendment or supplement to the Trust Agreement or by any other
action taken under or in respect of the Trust Agreement, except that each
reference in this Indenture to the Trust Agreement shall mean the Trust
Agreement as amended and supplemented from time to time to the extent
permitted hereby and thereby.
Section 15.11. Headings. The headings of the various Articles and
Sections herein and in the table of contents hereto are for the convenience of
reference only and shall not define or limit any of the terms or provisions
hereof.
Section 15.12. Normal Commercial Relations. Anything contained in
this Indenture to the contrary notwithstanding, the Owner Participant, the
Indenture Trustee and any Holder, or any bank or other affiliate of any such
party, may conduct any banking or other financial transactions, and have
banking or other commercial relationships, with the Lessee fully to the same
extent as if this Indenture were not in effect, including without limitation
the making of loans or other extensions of credit to the Lessee for any
purpose whatsoever, whether related to any of the transactions contemplated
hereby or otherwise.
Section 15.13. Governing Law; Counterparts. THIS INDENTURE AND
EACH CERTIFICATE SHALL IN ALL RESPECTS BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK, INCLUDING ALL MATTERS OF
CONSTRUCTION, VALIDITY AND PERFORMANCE. This Indenture may be executed by the
parties hereto in separate counterparts, each of which when so executed and
delivered shall be an original, but all such counterparts shall together
constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed this 28th day of May, 1997 by their respective officers
thereunto duly authorized and acknowledge that this Indenture has been made
and delivered in the City of New York, and this Indenture shall be effective
only upon such execution and delivery.
STATE STREET BANK AND TRUST COMPANY
OF CONNECTICUT, NATIONAL ASSOCIATION,
not in its individual capacity,
except as specifically set forth herein
but solely as Owner Trustee
By
------------------------------------
Name: Paul D. Allen
Title: Vice President
FIRST SECURITY BANK,
NATIONAL ASSOCIATION,
not in its individual capacity,
but solely as Indenture Trustee
By
------------------------------------
Name: Greg A. Hawley
Title: Vice President
Exhibit A
to
Trust Indenture and Security Agreement
Indenture and Security Agreement Supplement No. ___
Indenture and Security Agreement Supplement No. ___ (Federal Express
Corporation Trust No. N674FE) dated ________, ____, of STATE STREET BANK AND
TRUST COMPANY OF CONNECTICUT, NATIONAL ASSOCIATION, a national banking
association, not in its individual capacity but solely as owner trustee
(herein called the "Owner Trustee") under the Trust Agreement dated as of May
1, 1997 (the "Trust Agreement") between State Street Bank and Trust Company of
Connecticut, National Association and the Owner Participant named therein.
W I T N E S S E T H :
-------------------
WHEREAS, the Trust Agreement provides for the execution and delivery
of this Indenture and Security Agreement Supplement which shall particularly
describe the Aircraft and any Replacement Airframe or Replacement Engine
included in the property covered by the Trust Agreement.
WHEREAS, the Trust Indenture and Security Agreement (Federal Express
Corporation Trust No. N674FE) dated as of May 1, 1997 (the "Indenture") between
the Owner Trustee and First Security Bank, National Association (herein called
the "Indenture Trustee") provides for the execution and delivery of an
Indenture and Security Agreement Supplement substantially in the form of this
Indenture and Security Agreement Supplement No. __, which Supplement shall
particularly describe the Aircraft included in the Trust Indenture Estate, and
shall specifically mortgage such Aircraft to the Indenture Trustee.
(1)WHEREAS, the Indenture relates to the Aircraft and the Engines
described in the following paragraph and a counterpart of the Indenture is
attached to and made a part of this Indenture and Security Agreement
Supplement No. 1, and this Indenture and Security Agreement Supplement No. 1,
together with such attachment, is being filed for recordation on or promptly
after the date of this Supplement No. 1 with the Federal Aviation
Administration as one document.
- ------------
(1) This recital is to be included only in the first Indenture Supplement.
(2)Whereas, the Indenture and Indenture and Security Agreement
Supplement No. ___ dated _________________, ______ (the Indenture being
attached to and made a part of such Indenture and Security Agreement
Supplement and filed therewith) have been duly recorded pursuant to Subtitle
VII of Title 49 of the United States Code, on ____________, _____, as one
document and have been assigned Conveyance No. _________.
- ------------
(2) This recital is not to be included in the first Indenture Supplement.
NOW, THEREFORE, this Supplement witnesseth, that, to secure the prompt
payment of the principal of and Make-Whole Premium, if any, and interest on,
and all other amounts due with respect to, all Outstanding Certificates under
the Indenture and all other amounts due hereunder and the performance and
observance by the Owner Trustee of all the agreements, covenants and
provisions for the benefit of the Holders contained in the Indenture, in the
Lease, in the Participation Agreement and the Certificates, and the prompt
payment of any and all amounts from time to time owing under the Participation
Agreement by the Owner Trustee, the Owner Participant or the Lessee to the
Holders and for the uses and purposes and subject to the terms and provisions
of the Indenture and the Certificates, and in consideration of the premises
and of the covenants contained in the Indenture, and of the purchase of the
Certificates by the Holders, and of the sum of $1 paid to the Owner Trustee by
the Indenture Trustee at or before the delivery of the Indenture, the receipt
of which is hereby acknowledged, the Owner Trustee has granted, bargained,
sold, assigned, transferred, conveyed, mortgaged, pledged, granted a security
interest in, and confirmed, and does hereby grant, bargain, sell, assign,
transfer, convey, mortgage, pledge, grant a security interest in, and confirm,
unto the Indenture Trustee, its successors and assigns, in trust for the equal
and ratable security and benefit of the Holders, in the trust created by the
Indenture, and subject to all of the terms, conditions, provisions and
limitations set forth in the Indenture, a first priority security interest in
and mortgage lien on all estate, right, title and interest of the Owner Trustee
in, to and under the following described property:
Airframe
One (1) Airframe identified as follows:
FAA Manufacturer's
Registration Serial
Manufacturer Model Number Number
- ------------ ----- ------------ --------------
together with all appliances, equipment, instruments and accessories
(including, without limitation, radio and radar) from time to time belonging
thereto, owned by the Owner Trustee and installed in or appurtenant to said
aircraft.
AIRCRAFT ENGINES
Two (2) aircraft engines, each such engine having 750 or more rated takeoff
horsepower or the equivalent thereof, identified as follows:
Manufacturer's
Serial
Manufacturer Model Number
- ------------ ----- --------------
together with all equipment and accessories belonging thereto, by whomsoever
manufactured, owned by the Owner Trustee and installed in or appurtenant to
said aircraft engines.
Together with all substitutions, replacements and renewals of the
property described above, and all property which shall hereafter become
physically attached to or incorporated in the property described above,
whether the same are now owned by the Owner Trustee or shall hereafter be
acquired by it.
As further security for the obligations referred to above and secured
by the Indenture and hereby, the Owner Trustee has granted, bargained, sold,
assigned, transferred, conveyed, mortgaged, pledged and confirmed, and does
hereby grant, bargain, sell, assign, transfer, convey, mortgage, pledge and
confirm, unto the Indenture Trustee, its successors and assigns, for the
security and benefit of the Holders, in the trust created by the Indenture,
and subject to all of the terms, conditions, provisions and limitations set
forth in the Indenture, all of the estate, right, title and interest of the
Owner Trustee in, to and under the Lease Supplement (other than Excepted
Payments, if any) covering the property described above.
TO HAVE AND TO HOLD all and singular the aforesaid property unto the
Indenture Trustee, its successors and assigns, for the benefit and security of
the Holders for the uses and purposes and subject to the terms and provisions
set forth in the Indenture.
This Supplement shall be construed as supplemental to the Indenture
and shall form a part thereof, and the Indenture is hereby incorporated by
reference herein and is hereby ratified, approved and confirmed.
This Supplement is being delivered in the State of New York.
AND, FURTHER, the Owner Trustee hereby acknowledges that the
Aircraft/Engines referred to in this Supplement and the aforesaid Lease
Supplement has been delivered to the Owner Trustee and is included in the
property of the Owner Trustee and covered by all the terms and conditions of
the Trust Agreement, subject to the Lien of the Indenture.
IN WITNESS WHEREOF, the Owner Trustee has caused this Supplement to
be duly executed as of the date first written above by one of its officers
thereunto duly authorized.
STATE STREET BANK AND TRUST COMPANY
OF CONNECTICUT, NATIONAL ASSOCIATION,
not in its individual capacity,
except as specifically set forth herein
but solely as Owner Trustee
By
------------------------------------
Name: Paul D. Allen
Title: Vice President
Exhibit B
to
Trust Indenture and Security Agreement
[Form of Certificate]
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY
NOT BE SOLD OR OFFERED FOR SALE IN CONTRAVENTION OF SAID ACT
No. ______ $_____________
EQUIPMENT TRUST CERTIFICATE
(Federal Express Corporation Trust No. N674FE)
STATE STREET BANK AND TRUST COMPANY OF CONNECTICUT,
NATIONAL ASSOCIATION
not in its individual capacity but solely as
OWNER TRUSTEE UNDER TRUST AGREEMENT
(Federal Express Corporation Trust No. N674FE)
dated as of May 1, 1997
SERIES ___
Interest Rate Maturity
- ------------- --------
State Street Bank and Trust Company of Connecticut, National
Association, a national banking association, not in its individual capacity
but solely as Owner Trustee (herein in such capacity called the "Owner
Trustee") under that certain Trust Agreement (Federal Express Corporation
Trust No. N674FE) dated as of May 1, 1997, between the Owner Participant named
therein and State Street Bank and Trust Company of Connecticut, National
Association (herein as such Trust Agreement may be amended or supplemented
from time to time called the "Trust Agreement"), hereby promises to pay to
FIRST SECURITY BANK, NATIONAL ASSOCIATION, as Subordination Agent, or its
registered assigns, the principal sum of ________________ _______________
Dollars, payable as set forth below for the Maturity specified above, in such
coin or currency of the United States of America as at the time of payment
shall be legal tender for the payment of public and private debts, and to pay
interest on the principal outstanding from time to time, semiannually on each
January 15 and July 15, on said principal sum in like coin or currency at the
rate per annum set forth above from the January 15 or the July 15, as the case
may be, next preceding the date of this Certificate to which interest on the
Certificates has been paid or duly provided for, unless the date hereof is a
date to which interest on the Certificates has been paid or duly provided for,
in which case from the date of this Certificate. Notwithstanding the
foregoing, if the date hereof is after any January 15 or July 15 and before the
following January 15 or July 15, as the case may be, this Certificate shall
bear interest from such January 15 or July 15; provided that, if the Owner
Trustee shall default in the payment of interest due on such January 15 or
July 15, then this Certificate shall bear interest from the next preceding
January 15 or July 15 to which interest on this Certificate has been paid or
duly provided for. The interest so payable on any January 15 or July 15 will,
except as otherwise provided in the Indenture referred to below, be paid to
the person in whose name this Certificate is registered at the close of
business on the January 15 or July 15 preceding such January 15 or July 15,
whether or not such day is a Business Day.
This Certificate shall bear interest at the Past Due Rate on any
principal hereof and on any other amount payable hereunder or under the
Indenture which shall not be paid in full when due (whether at stated
maturity, by acceleration, by mandatory prepayment or otherwise), for the
period from and including the date thereof to but excluding the date the same
is paid in full, payable from time to time on demand of the Indenture Trustee.
Principal and interest and other amounts due hereunder shall be
payable at the office or agency of First Security Bank, National Association
(the "Indenture Trustee") maintained for such purpose in immediately available
funds prior to 10:30 A.M. (New York time) on the due date thereof and the
Indenture Trustee shall remit all such amounts received by it to the Holders
at such account or accounts at such financial institution or institutions as
the Holders shall have designated to the Indenture Trustee in writing, in
immediately available funds, such payment to be made if the payment was
received prior to 10:30 A.M. New York time by the Indenture Trustee on any
Business Day, by 12:00 noon New York time on such Business Day; otherwise, the
Indenture Trustee shall make payment promptly, but not later than 11:00 A.M.
New York time on the next succeeding Business Day; provided that, at the
option of the Indenture Trustee or its Paying Agent, interest may be paid by
mailing a check therefor payable to or upon the written order of the
registered holder entitled thereto at his last address as it appears on the
Register. If any amount payable under this Certificate, or under the
Indenture, falls due on a day that is not a Business Day, then such sum shall
be payable on the next succeeding Business Day, without (provided that payment
is made on such next succeeding Business Day) additional interest thereon for
the period of such extension.
State Street Bank and Trust Company of Connecticut, National
Association and First Security Bank, National Association are not acting
individually hereunder, but solely as Owner Trustee and Indenture Trustee,
respectively.
Any Person, other than the Subordination Agent, who is acquiring the
Certificates will be deemed to represent and warrant that (i) no assets of an
employee benefit plan subject to Title I of ERISA or an individual retirement
account or plan subject to Section 4975 of the Code, or any trust established
under any such plan or account, have been used to acquire or hold any of the
Certificates, or (ii) that one or more administrative or statutory exemptions
from the prohibited transaction rules under Section 406 of ERISA and Section
4975 of the Code applies to its purchase and holding of the Certificates such
that its purchase and holding of the Certificates will not result in a
non-exempt prohibited transaction under Section 406 of ERISA and Section 4975
of the Code.
This Certificate is one of a duly authorized issue of Certificates
issued and to be issued under the Trust Indenture and Security Agreement
(Federal Express Corporation Trust No. N674FE) dated as of May 1, 1997 (herein
as amended, supplemented or modified from time to time called the "Indenture")
between the Owner Trustee and the Indenture Trustee, designated as Equipment
Trust Certificates (Federal Express Corporation Trust No. N674FE) limited in
aggregate initial principal amount to $61,835,000 consisting of the following
aggregate principal amounts of Certificates with the interest rates per annum
and Maturities shown:
Initial
Aggregate
Principal
Series Maturity Amount Interest Rate
------ -------- ----------- -------------
A January 15, 2018 $33,382,000 7.50%
B January 15, 2018 $12,430,000 7.52%
C January 15, 2014 $16,023,000 7.65%
Reference is made to the Indenture and all supplements and amendments
thereto (a copy of which is on file with the Indenture Trustee at its
principal corporate trust office) for a more complete statement of the terms
and provisions thereof, including a statement of the properties conveyed,
pledged and assigned thereby, the nature and extent of the security, the
respective rights of the Owner Trustee, the Owner Participant, the Lessee, the
Indenture Trustee and the Holders, and the terms upon which the Certificates
are, and are to be, executed and delivered, to all of which terms and
conditions in the Indenture each Holder hereof agrees by its acceptance of
this Certificate.
Capitalized terms not otherwise defined herein shall have the
meanings given to them in the Indenture.
The principal amounts of the Certificates are payable as follows. The
Certificates are subject to redemption in part, pro rata (based on the face
amount thereof), in each case through mandatory sinking fund redemptions
providing for the redemption on the Sinking Fund Redemption Dates of the
aggregate principal amounts set forth below, together with interest accrued
thereon to the applicable Sinking Fund Redemption Date, but without Make-Whole
Premium.
Principal Amount
Series A Series B Series C
Certificates Certificates Certificates
with a with a with a
Sinking Fund Maturity of Maturity of Maturity of
Redemption Date January 15, 2018 January 15, 2018 January 15, 2014
- ---------------- ---------------- ---------------- -----------------
July 15, 1997 0 0 0
January 15, 1998 178,525 161,870 0
July 15, 1998 488,462 0 0
January 15, 1999 405,194 250,371 0
July 15, 1999 262,461 0 0
January 15, 2000 391,578 250,371 333,147
July 15, 2000 276,076 0 0
January 15, 2001 449,906 250,371 333,827
July 15, 2001 217,749 0 0
January 15, 2002 612,950 250,371 333,827
July 15, 2002 54,705 0 0
January 15, 2003 667,654 250,371 551,201
July 15, 2003 0 0 0
January 15, 2004 667,654 250,371 709,532
July 15, 2004 0 0 0
January 15, 2005 667,654 250,371 829,238
July 15, 2005 0 0 0
January 15, 2006 667,654 250,371 798,676
July 15, 2006 0 0 0
January 15, 2007 350,625 250,371 3,713,379
July 15, 2007 317,030 0 0
January 15, 2008 667,654 250,371 645,550
July 15, 2008 0 0 0
January 15, 2009 667,654 250,371 1,415,654
July 15, 2009 0 0 0
January 15, 2010 667,654 1,026,373 981,208
July 15, 2010 0 0 0
January 15, 2011 667,654 2,862,630 0
July 15, 2011 0 0 0
January 15, 2012 667,654 3,146,944 0
July 15, 2012 0 0 0
January 15, 2013 4,556,464 190,066 123,763
July 15, 2013 0 0 0
January 15, 2014 0 0 5,253,998
July 15, 2014 0 0 0
January 15, 2015 5,667,502 0 0
July 15, 2015 0 0 0
January 15, 2016 6,109,126 0 0
July 15, 2016 0 0 0
January 15, 2017 6,585,161 0 0
July 15, 2017 0 0 0
January 15, 2018 449,600 2,288,036 0
Except as expressly provided in the Indenture, all payments of
principal, Make-Whole Premium, if any, and interest and other amounts to be
made to the Holder hereof by or at the behest of the Owner Trustee hereunder
or under the Indenture shall be made only from the income and proceeds from
the Lessor's Estate to the extent included in the Trust Indenture Estate and
only to the extent that the Owner Trustee shall have sufficient income or
proceeds from the Lessor's Estate to the extent included in the Trust
Indenture Estate to enable the Indenture Trustee to make such distributions in
accordance with the terms of the Indenture; provided that under the Lease, the
Lessee is obligated to pay or cause to be paid, to the extent such payments
are not required to be made from the assets subject to the Lien of this
Indenture or the income and proceeds received by the Indenture Trustee
therefrom, any net loss arising from the investment of funds held by the
Indenture Trustee which but for an Event of Default would be payable to
Lessee, and each Holder hereof, by its acceptance of this Certificate, agrees
that it will (except as aforesaid) look solely to the income and proceeds from
the Trust Indenture Estate to the extent available for distribution to the
Holder hereof as provided above and that neither the Owner Participant, the
Owner Trustee, State Street Bank and Trust Company of Connecticut, National
Association nor the Indenture Trustee is personally liable to the Holder
hereof for any amounts payable or any liability under this Certificate or
under the Indenture, except as expressly provided in the Indenture, in the
case of State Street Bank and Trust Company of Connecticut, National
Association, the Owner Trustee and the Indenture Trustee.
The Certificates are subject to prepayment in the following
circumstances at the price determined as set forth below.
(i) If an Event of Loss occurs with respect to the Airframe or with
respect to the Airframe and the Engines or engines then installed on the
Airframe (unless pursuant to Section 11.03 of the Lease and Section 9.08 of
the Indenture replacement equipment is substituted therefor).
(ii) If the Lessee, pursuant to Section 4.02(a) of the Lease, gives
notice of purchase of the Aircraft (and the Lessee shall not have revoked
such notice or effected an assumption of the Certificates as provided in
Section 2.12 of the Indenture).
(iii) If the Owner Participant or the Owner Trustee on behalf of the
Owner Participant gives notice of prepayment to the Indenture Trustee
pursuant to Section 8.02 of the Indenture.
(iv) If the Lessee, pursuant to Section 10.01 of the Lease, gives
notice of a voluntary termination for obsolescence or surplus, but subject
to Section 6.02(c) of Indenture.
(v) Pursuant to Section 15.01 of the Participation Agreement in
connection with a Refinancing of the Certificates.
(vi) As contemplated by Section 2.16 of the Indenture and Section
3.05(b) of the Participation Agreement if the Delivery Date has not
occurred on or prior to the Cut-Off Date.
(vii) At the option of the Owner Trustee with the prior written
consent of the Lessee and the Owner Participant upon not less than 25 days'
prior written notice.
In the case of a prepayment of the Certificates pursuant to clauses
(ii), (iv) and (v) above, the Lessee, in accordance with and subject to the
terms (including timing of notice) of Section 4.02(a) or 10.01 of the Lease or
Article 15 of the Participation Agreement, as the case may be, shall give
irrevocable (subject to Section 6.02(c) of the Indenture) written notice to
the Owner Trustee and the Indenture Trustee and to the Holders of all of the
Certificates specifying the Business Day on which the Owner Trustee is
directed to prepay the Certificates. In the case of a prepayment pursuant to
clause (i) above, the Certificates shall be prepaid on the Loss Payment Date
(as defined in Section 11.02 of the Lease). In the case of a prepayment
pursuant to clause (iii) above, the Certificates shall be prepaid on the date
designated in the notice of prepayment required by Section 8.02 of the
Indenture. In the case of a prepayment of the Certificates pursuant to
clauses (ii) and (iv) above, the Certificates shall be prepaid in full on the
Termination Date. In the case of a prepayment of the Certificates pursuant to
clause (v) above, the Certificates shall be prepaid on the effective date of
the Refinancing. In the case of a prepayment of the Certificates pursuant to
clause (vi) above, the Certificates shall be prepaid on the 15th day following
the Cut-Off Date. In the case of a prepayment of the Certificates pursuant to
clause (vii) above, the Certificates shall be prepaid on the date designated
in the notice referred to therein. The day on which the Certificates are to
be prepaid is herein referred to as the "Prepayment Date". On or prior to the
Prepayment Date, immediately available funds shall be deposited with the
Indenture Trustee in an amount in respect of the Certificates equal to:
(1) (i) if such prepayment is made under any provision of Section
6.02 of the Indenture on or after the applicable Premium Termination Date,
or (ii) if such prepayment is made prior to the applicable Premium
Termination Date pursuant to clause (i), (iii) (if clause (i) of the first
sentence of Section 8.02(a) of the Indenture is applicable) or (vi) above,
the sum of (A) the aggregate principal amount of such Certificates then
Outstanding, (B) accrued interest on the Certificates to the Prepayment
Date and (C) all other aggregate sums due the Indenture Trustee under the
Indenture or under the Participation Agreement or the Lease, but excluding
any Make-Whole Premium or other premium or penalty, or
(2) if such prepayment is made prior to the applicable Premium
Termination Date pursuant to clause (ii), (iii) (if clause (ii) of the
first sentence of Section 8.02(a) of the Indenture is applicable), (iv),
(v) or (vii) above, the sum of the amounts specified in clauses (A), (B)
and (C) of the preceding clause (1) plus any Make-Whole Premium payable in
respect of all Certificates with respect to which the Premium Termination
Date therefor has not occurred
(the aggregate amount required to be paid pursuant to this sentence being
herein referred to as the "Prepayment Price").
If, in accordance with and subject to the satisfaction of the
conditions set forth in Section 7.11 of the Participation Agreement, the
Lessee shall assume all of the obligations of the Owner Trustee hereunder,
under the Certificates and all other Operative Agreements, the Owner
Participant and the Owner Trustee shall (except for prior acts) be released
and discharged from any further obligations hereunder and under the
Certificates and all other Operative Agreements (except any obligations that
have accrued prior to such assumption).
If an Indenture Event of Default under the Indenture shall occur and
be continuing, the principal of the Certificates may be declared due and
payable in the manner and with the effect provided in the Indenture. The
Indenture provides that in certain events such declaration and its
consequences may be waived the Majority in Interest of Holders. Any such
consent or waiver shall be conclusive and binding upon the Holder of this
Certificate and upon all future Holders and owners of this Certificate and any
Certificate that may be issued in exchange or substitution therefor, whether or
not any notation thereof is made upon this Certificate or such other
Certificates. Moreover, if, and only if, an Event of Default shall occur, the
Indenture Trustee may declare the Lease to be in default, and may, to the
exclusion of the Owner Trustee, exercise one or more of the remedies of the
Owner Trustee provided in the Lease.
The Owner Trustee or the Owner Participant may cure a default by the
Lessee under the Lease arising from the failure of the Lessee to make any
Basic Rent payments under the Lease, but the Owner Trustee and the Owner
Participant, collectively, may not cure more than three consecutive such
failures or more than six such failures in total. The Owner Trustee or the
Owner Participant may cure any other default by the Lessee in the performance
of its obligations under the Lease.
(A) If an Event of Default shall have occurred and be continuing for
more than 180 days or the Certificates shall have been accelerated or (B) an
Event of Default shall have occurred and be continuing for not more than 180
days and the Certificates shall not have been accelerated, the Owner
Participant (or the Owner Trustee on behalf of the Owner Participant) may:
(1) direct the Owner Trustee to cause the prepayment of all the
Outstanding Certificates by notifying the Indenture Trustee of such
election and depositing the sum of amounts contemplated by paragraph
"first" under Section 5.03 of the Indenture and the aggregate
Prepayment Price of all such Certificates with the Indenture Trustee
for distribution to the Holders; or
(2) purchase all of the Outstanding Certificates by paying to the
Indenture Trustee an amount equal to the aggregate unpaid principal
amount of all Outstanding Certificates, plus accrued interest on such
amount to the date of purchase and if such purchase occurs prior to
the Premium Termination Date for such Outstanding Certificate (in the
case of a purchase pursuant to clause (ii) of the first sentence of
Section 8.02(a) of the Indenture but not in the case of clause (i) of
Section 8.02(a) of the Indenture) any Make-Whole Premium applicable
to each Outstanding Certificate, plus all other sums due any Holder
or the Indenture Trustee under the Indenture, the Participation
Agreement or the Lease.
The right of the Holder hereof to institute an action for any remedy
under the Indenture is subject to certain restrictions specified in the
Indenture, except that the right of the Holder of this Certificate to receive
payment of the principal of and interest and Make-Whole Premium, if any, on
this Certificate on or after the respective due dates, or to institute suit
for the enforcement of any such payment, shall not be impaired or affected
without the consent of such Holder.
The Certificates are issuable only as registered Certificates without
coupons in denominations of $1,000 and integral multiples thereof. So long as
any of the Certificates remain Outstanding, the Indenture Trustee will
maintain an office or agency where the Certificates may be presented for
payment and a facility or agency in New York, New York where the Certificates
may be presented for registration of transfer and for exchange as provided in
the Indenture. As provided in the Indenture and subject to certain
limitations therein, this Certificate is transferable, and upon surrender of
this Certificate for registration of transfer at the principal corporate trust
office of the Indenture Trustee, or at the office or agency maintained for such
purposes, duly endorsed by, or accompanied by a written instrument of transfer
in form satisfactory to the Owner Trustee and the Indenture Trustee duly
executed by, the Holder or his attorney duly authorized in writing, one or
more new Certificates of the same Series and Maturity and interest rate and of
authorized denominations and for the same aggregate principal amount will be
issued to the designated transferee or transferees.
As provided in the Indenture and subject to certain limitations
therein, the Certificates are exchangeable for an equal aggregate principal
amount of Certificates of the same Series and Maturity and interest rate and
of authorized denominations, as requested by the Holder surrendering the same,
upon presentation thereof for such purpose at the principal corporate trust
office of the Indenture Trustee, or at an office or agency maintained for such
purpose.
No service charge shall be levied for any such registration of
transfer or exchange, but the Indenture Trustee may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection
therewith.
Prior to the due presentment for registration of transfer of this
Certificate, the Owner Trustee, the Indenture Trustee, any agent of the Owner
Trustee or the Indenture Trustee, the Paying Agent, if any, the Registrar and
the Lessee shall deem and treat the person in whose name this Certificate is
registered as the absolute owner hereof for all purposes whether or not this
Certificate is overdue, and neither the Owner Trustee, the Indenture Trustee
(nor any agent of the Owner Trustee or the Indenture Trustee), nor the Paying
Agent, if any, the Registrar nor the Lessee shall be affected by notice to the
contrary.
The indebtedness evidenced by this Certificate is, to the extent and
in the manner provided in the Indenture, subordinate and subject in right of
payment to the prior payment in full of the Secured Obligations (as defined in
the Indenture) in respect of [Series A Certificate](1), [Series A and Series B
Certificates](2) and this Certificate is issued subject to such provisions.
The Holder of this Certificate, by accepting the same, (a) agrees to and shall
be bound by such provisions, (b) authorizes and directs the Indenture Trustee
on such Holder's behalf to take such action as may be necessary or appropriate
to effectuate the subordination as provided in the Indenture and (c) appoints
the Indenture Trustee such Holder's attorney-in-fact for such purpose.(*)
- ------------
(1) To be inserted in the case of a Series B Certificate.
(2) To be inserted in the case of a Series C Certificate.
(*) To be inserted for each Certificate other than any Series A Certificate.
As provided in the Indenture, the Indenture and the Certificates
shall be construed in accordance with and governed by the laws of the State of
New York.
This Certificate shall not be secured by or be entitled to any
benefit under the Indenture or be valid or obligatory for any purpose unless
authenticated by the Indenture Trustee as evidenced by the manual signature of
one of its authorized officers on the certificate below.
IN WITNESS WHEREOF, the Owner Trustee has caused this Equipment Trust
Certificate (Federal Express Corporation Trust No. N674FE) to be duly executed
in its corporate name by its officer thereunto duly authorized.
Dated: May ___, 1997 STATE STREET BANK AND TRUST COMPANY OF
CONNECTICUT, NATIONAL ASSOCIATION,
not in its individual capacity,
but solely as Owner Trustee
By
------------------------------------
Name: Paul D. Allen
Title: Vice President
[FORM OF INDENTURE TRUSTEE'S CERTIFICATE OF AUTHENTICATION]
This is one of the Equipment Trust Certificates (Federal Express
Corporation Trust No. N674FE) referred to in the within mentioned Indenture.
Dated: May ___, 1997 FIRST SECURITY BANK, NATIONAL ASSOCIATION,
not in its individual capacity,
but solely as Indenture Trustee
By
------------------------------------
Name: Greg A. Hawley
Title: Vice President
SCHEDULE I
[Reserved]
SCHEDULE II
DEFINITIONS
(FEDERAL EXPRESS CORPORATION TRUST NO. N674FE)
GENERAL PROVISIONS
The following terms shall have the following meanings for all
purposes of the Operative Agreements (other than the Pass Through Agreement,
the Series Supplements, the Intercreditor Agreement and the Liquidity
Facilities) referred to below, unless otherwise defined in an Operative
Agreement or the context thereof shall otherwise require. In the case of any
conflict between the provisions of this Schedule and the provisions of any
Operative Agreement, the provisions of such Operative Agreement shall control
the construction of such Operative Agreement.
Unless the context otherwise requires, (i) references to agreements
shall be deemed to mean and include such agreements as amended and
supplemented from time to time, and (ii) references to parties to agreements
shall be deemed to include the successors and permitted assigns of such
parties.
DEFINED TERMS:
Additional Insured. As defined in Article 13 of the Lease.
Aeronautics Authority. As appropriate, the Federal Aviation
Administration and/or the Administrator of the Federal Aviation
Administration, any successor to the former United States Civil Aeronautics
Board, or any Person, governmental department, bureau, commission or agency
located in the United States succeeding to the functions of any of the
foregoing.
Affidavits. The affidavits of citizenship of the Owner Trustee and
the Owner Participant.
Affiliate. With respect to any Person, any other Person directly or
indirectly controlling, controlled by or under common control with such
Person. For the purposes of this definition, "control" (including "controlled
by" and "under common control with") shall mean the power, directly or
indirectly, to direct or cause the direction of the management and policies of
such Person whether through the ownership of voting securities or by contract
or otherwise. In no event shall the Owner Trustee or the Lessor be deemed an
Affiliate of the Owner Participant.
After-Tax Basis. A basis such that any payment to be received by a
Person shall be supplemented by a further payment to such Person so that the
sum of the two payments, after deduction of all Taxes resulting from the
receipt or accrual of such payments, shall be equal to the payment to be
received. In the case of amounts payable to the Lessor, the Owner Participant,
or any corporate Affiliate of the Owner Participant, it shall be presumed that
such Person is at all times subject to Federal income tax at the maximum
marginal rate generally applicable to corporations from time to time and
actual state, local and foreign income taxes.
Air Carrier. Any U.S. Air Carrier and any "foreign air carrier" (as
defined in the Transportation Code) as to which there is in force a permit
granted under Section 41302 of the Transportation Code.
Airbus Guaranty. The Guaranty to be dated the Delivery Date executed
by the Manufacturer and guaranteeing AVSA's Warranty Bill of Sale.
Aircraft. The Airframe to be sold by AVSA to the Owner Trustee as
provided in the Participation Agreement and to be leased under the Lease (or
any permitted substitute airframe thereunder) together with two Engines
(whether either is an initial Engine or a Replacement Engine) whether or not
any of such initial or Replacement Engines may from time to time be installed
on such Airframe or may be installed on any other airframe or on any other
aircraft, including any aircraft substituted pursuant to Section 11.03 of the
Lease. Prior to delivery of the initial Lease Supplement, references in the
Operative Agreements (including Section 3.05 of the Participation Agreement)
to Aircraft shall mean the Airbus A300F4-605R airframe bearing FAA
Registration Number N674FE and Manufacturer's serial number 781, together with
two General Electric CF6-80C2-A5F engines.
Airframe. The Airbus A300F4-605R aircraft (excluding the Engines or
engines from time to time installed thereon) to be leased by the Lessor to the
Lessee pursuant to the Lease and the initial Lease Supplement and having the
United States FAA Registration Number initially and manufacturer's serial
number specified in the initial Lease Supplement, including (i) all Parts in
respect thereof and (ii) any Replacement Airframe which may be substituted
pursuant to Section 11.03 of the Lease.
Ancillary Agreement. Any written agreement of the Lessee to which the
Lessor is a party or to which the Lessor has consented in writing entered into
on or prior to the Delivery Date or any date thereafter in connection with the
transactions contemplated by the Operative Agreements, as such agreement may
be amended and supplemented from time to time with the consent of the Lessor
and delivered to the Owner Trustee, the Indenture Trustee, the Pass Through
Trustee, the Subordination Agent, each Liquidity Provider and the Owner
Participant.
Ancillary Agreement I. The Ancillary Agreement I (Federal Express
Corporation Trust No. N674FE), dated the Certificate Closing Date, among the
Lessee, the Owner Trustee, not in its individual capacity, but solely as Owner
Trustee, the Owner Participant and the Indenture Trustee not in its individual
capacity, but solely as Indenture Trustee, as originally executed or as
amended, modified or supplemented with the consent of all the parties thereto.
Ancillary Agreement II. The Ancillary Agreement II (Federal Express
Corporation Trust No. N674FE), dated the Certificate Closing Date, among the
Lessee, the Owner Trustee, not in its individual capacity, but solely as Owner
Trustee, the Owner Participant and the Indenture Trustee not in its individual
capacity, but solely as Indenture Trustee, as originally executed or as
amended, modified or supplemented with the consent of all the parties thereto.
Application. The application for registration of the Aircraft with
the FAA in the name of the Owner Trustee.
Appraisal. The report prepared by BK Associates, Inc. and to be
delivered to the Owner Participant (with an abbreviated report to the Lessee)
on the Delivery Date pursuant to Section 4.02(h) of the Participation
Agreement.
Assignment and Assumption Agreement. Any agreement delivered in
compliance with Section 7.03(d) of the Participation Agreement.
Average Life Date. For any Certificate, the date which follows the
prepayment date by a period equal to the Remaining Weighted Average Life of
such Certificate.
AVSA. AVSA S.A.R.L., a societe a responsabilite limitee, organized
and existing under the laws of France.
AVSA Consent and Agreement. The Consent and Agreement dated as of
May 1, 1997, executed by AVSA.
AVSA's FAA Bill of Sale. The bill of sale for the Airframe on AC
Form 8050-2, or such other form as may be approved by the Aeronautics
Authority, executed by AVSA in favor of the Owner Trustee and to be dated the
Delivery Date.
AVSA's Warranty Bill of Sale. The full warranty bill of sale
covering the Aircraft (and specifically referring to each Engine) executed by
AVSA as owner of the Aircraft in favor of the Owner Trustee and to be dated
the Delivery Date.
Bankruptcy Code. The Federal Bankruptcy Code of 1978, as amended, and
any successor thereto.
Bankruptcy Default. An event specified in Section 16.01(e), (f) or
(g) of the Lease which either does or, with the giving of notice or lapse of
time or both, would constitute an Event of Default.
Basic Rent. The aggregate periodic rent payable for the Aircraft
throughout the Basic Term pursuant to Section 3.02 of the Lease, adjusted
pursuant to Article 3 of the Lease.
Basic Term. The period commencing at the beginning of the day on the
Delivery Date and ending at the end of the day on December 23, 2020, or such
earlier date on which the Lease shall be terminated as provided therein.
Beneficial Interest. The interest of the Owner Participant under the
Trust Agreement.
Business Day. Any day on which commercial banks are not authorized or
required to close in New York, New York, Memphis, Tennessee and the city in the
United States in which the office or agency is maintained by the Pass Through
Trustee for the payment of the Pass Through Certificates, and after the Lien
of the Indenture is discharged, Boston, Massachusetts.
Certificate Closing Date. The date of the closing with respect to the
purchase of Certificates by the Pass Through Trustee contemplated by Section
2.01(b) of the Participation Agreement.
Certificates. The Equipment Trust Certificates (Federal Express
Corporation Trust No. N674FE), issued by the Owner Trustee pursuant to the
Indenture and any certificate issued in exchange therefor or replacement
thereof pursuant to the Indenture.
Change in Tax Law. Any change to the Code or the Treasury regulations
promulgated thereunder or the publication of any revenue ruling, revenue
procedure or any informational release by the Internal Revenue Service or the
Department of Treasury either of which would change or would allow a change in
the tax assumptions or structure upon which the lease economics were based,
provided that the Owner Participant or the Lessee has notified the other party
of such change in writing prior to the Delivery Date.
Change in Tax Rate. Any amendment, modification, deletion, addition,
or change to the Code which is enacted into law after the Delivery Date which
changes the highest marginal statutory rate of Federal income tax applicable
to the Owner Participant (other than a change which is in the nature of a
minimum tax).
Citizen of the United States. A citizen of the United States as
defined in Section 40102(a)(15) of the Transportation Code, or any analogous
part of any successor or substituted legislation or regulation at the time in
effect.
Class A Liquidity Provider. Has the meaning specified in Section
1.01 of the Intercreditor Agreement.
Class B Liquidity Provider. Has the meaning specified in Section
1.01 of the Intercreditor Agreement.
Closings. The closing with respect to the acquisition of the Pass
Through Certificates by the Underwriters and the closing with respect to the
acquisition of Certificates by the Pass Through Trustee.
Code. Except as otherwise provided, the Internal Revenue Code of
1986, as amended from time to time.
Collateral Account. The deposit account established and maintained
pursuant to Section 2.13 of the Indenture.
Collateral Account Control Agreement. The Collateral Account Control
Agreement dated as of May 1, 1997 among State Street Bank and Trust Company,
the Indenture Trustee and the Owner Trustee.
Commitment. The amount of the Owner Participant's participation in
the Purchase Price required to be made available or paid as provided in
Section 3.02 of the Participation Agreement.
Consent and Agreement. The Consent and Agreement dated as of May 1,
1997 executed by the Manufacturer.
Consent and Guaranty. The Consent and Guaranty of the Manufacturer
attached to the Purchase Agreement.
Corporate Trust Administration. The Corporate Trust Administration
office of the Owner Trustee located at 750 Main Street, Hartford, Connecticut
06103, Attention: Corporation Trust Administration, or such other office at
which the Owner Trustee's corporate trust business shall be administered which
the Owner Trustee shall have specified by notice in writing to the Lessee, the
Owner Participant and the Indenture Trustee.
Corporate Trust Department. The Corporate Trust Department office of
the Indenture Trustee located at 79 South Main Street, Salt Lake City, Utah
84111, Attention: Corporate Trust Department, or such other office at which
the Indenture Trustee's corporate trust business shall be administered which
the Indenture Trustee shall have specified by notice in writing to the Lessee,
the Owner Participant and the Owner Trustee.
CRAF Program. Has the meaning specified in Section 7.01(f) of the
Lease.
Cut-Off Date. December 22, 1997.
Debt Portion. The amount specified as such on Schedule IV to the
Participation Agreement.
Debt Rate. The weighted average (based on Outstanding principal
amount) rate of interest on the Certificates issued pursuant to the Indenture.
Default. Any event or condition which, with the lapse of time or the
giving of notice, or both, would constitute an Event of Default.
Delivery Date. The date on which the Aircraft is delivered and sold
by AVSA to the Lessor and leased by the Lessor to the Lessee under the Lease,
which date shall also be the date of the initial Lease Supplement.
Delivery Notice. Notice of the Aircraft's Delivery Date, given by
the Lessee as provided in Section 3.01 of the Participation Agreement and
including any notice with respect to a postponed Delivery Date given by the
Lessee pursuant to Section 3.05(c) of the Participation Agreement.
Eligible Deposit Account. Either (a) a segregated account with an
Eligible Institution or (b) a segregated trust account with the corporate
trust department of a depository institution with corporate trust powers
organized under the laws of the United States or any state thereof, or the
District of Columbia, and whose deposits are insured by the Federal Deposit
Insurance Corporation, provided that such institution also has a combined
capital and surplus of at least $100,000,000 and a rating of A or better from
the Thomson Bank Watch.
Eligible Institution. A depository institution organized under the
laws of the United States or any one of the states thereof, or the District of
Columbia, or any domestic branch of a foreign bank, which in any such case at
all times (a) has either (x) a long-term unsecured debt rating of at least Aa2
by Moody's or (y) a short-term certificate of deposit rating of P-1 by
Moody's, (b) has either (x) a long-term unsecured debt rating of a least AA by
S&P or (y) a short-term certificate of deposit rating of A-1+ by S&P and (c)
is a member of the Federal Deposit Insurance Corporation.
Engine. Each of the two General Electric CF6-80C2-A5F engines listed
by its manufacturer's serial number in the initial Lease Supplement and leased
pursuant to the Lease, whether or not from time to time installed on the
Airframe or installed on any other airframe or on any other aircraft, and any
Replacement Engine which may from time to time be substituted for an Engine
pursuant to Section 7.02(a)(vii), 10.02(c), 10.03, 11.03, 11.04 or 12.02 of
the Lease, together with all Parts related thereto. Except as otherwise
provided, at such time as a Replacement Engine shall be so substituted and the
Engine for which the substitution is made shall be released from the Lien of
the Indenture, such replaced Engine shall cease to be an "Engine" under the
Lease. The term "Engines" means, as of any date of determination, both Engines
then leased to the Lessee pursuant to the Lease.
Engine Consent. The Engine Consent dated as of May 1, 1997, executed
by the Engine Manufacturer.
Engine Manufacturer. General Electric Company, a New York
corporation.
Engine Warranty Assignment. The Engine Warranty Assignment (Federal
Express Corporation Trust No. N674FE), dated as of May 1, 1997 between the
Lessor and the Lessee.
ERISA. The Employee Retirement Income Security Act of 1974, as
amended.
ERISA Plan. As defined in Section 8.01(b)(xii) of the Participation
Agreement.
Estimated Expense Amount. Has the meaning specified in Section
10.01(a) of the Participation Agreement.
Event of Default. Each of the events specified in Article 16 of the
Lease.
Event of Loss. Any of the following events with respect to the
Aircraft, the Airframe or any Engine: (i) loss of such property or its use (A)
for a period in excess of 60 days due to theft or disappearance or such longer
period, not to exceed 180 days from the end of such initial 60-day period, if
and so long as the location of such property is known to the Lessee and the
Lessee is diligently pursuing recovery of such property, or to the end of the
Term, if less (unless such theft or disappearance constitutes an Event of Loss
pursuant to (i)(B) or (ii) hereof) or (B) for a period in excess of 60 days
due to the destruction, damage beyond economic repair or rendition of such
property permanently unfit for normal use by Lessee for any reason whatsoever;
(ii) any damage to such property which results in an insurance settlement with
respect to such property on the basis of a total loss, or constructive or
compromised total loss; (iii) (1) condemnation, confiscation or seizure of, or
requisition of title to such property by the Government, any foreign
government or purported government or any agency or instrumentality thereof,
or (2) condemnation, confiscation, or seizure of, or requisition or taking of,
use of such property (A) by a foreign government or instrumentality or agency
of any such foreign government, for a period in excess of 180 days (or such
shorter period ending on the earlier of the expiration of the Term or on the
date on which an insurance settlement with respect to such property on the
basis of a total loss or constructive or compromised total loss shall occur)
or (B) by the Government for a period extending beyond the Term; and (iv) as a
result of any law, rule, regulation, order or other action by the Aeronautics
Authority or other governmental body having jurisdiction, the use of the
Aircraft or Airframe in the normal course of air transportation of cargo shall
have been prohibited by virtue of a condition affecting all Airbus A300-600
series aircraft equipped with engines of the same make and model as the
Engines for a period of twelve (12) consecutive months, unless the Lessee,
prior to the expiration of such twelve (12) month period, shall be diligently
carrying forward all steps which are necessary or desirable to permit the
normal use of the Aircraft or Airframe or, in any event, if such use of the
Aircraft or the Airframe shall have been prohibited for a period of
twenty-four (24) consecutive months or until the end of the Term, if earlier.
The date of such Event of Loss shall be (s) the 61st day or the 241st day, as
the case may be, following loss of such property or its use due to theft or
disappearance (or the end of the Term or the Lessee's abandonment of diligent
efforts to recover such property, if earlier); (t) the 61st day following the
date of any destruction, damage beyond economic repair or rendition of such
property permanently unfit for normal use; (u) the date of any insurance
settlement on the basis of a total loss or constructive or compromised total
loss; (v) the date of any condemnation, confiscation, seizure or requisition
of title of such property; (w) the 181st day following condemnation,
confiscation, seizure or requisition for use of such property by a foreign
government referred to in clause (iii)(2)(A) above (or the end of the Term or
the date of any insurance settlement described therein, if earlier than such
181st day); (x) the last day of the Term in the case of requisition for use of
such property by the Government; (y) the last day of the 12 month or 24 month
period, referred to in clause (iv) above (or if earlier, the end of the Term
or abandonment of the Lessee's efforts to restore the normal use of the
Aircraft). An Event of Loss with respect to the Aircraft shall be deemed to
have occurred if any Event of Loss occurs with respect to the Airframe.
Excepted Payments. Collectively, (i) indemnity, expense,
reimbursement or other payments paid or payable by the Lessee in respect of
the Owner Participant, the Owner Trustee in its individual capacity or any of
their respective successors, permitted assigns, directors, officers,
employees, servants and agents or Affiliates, pursuant to the Participation
Agreement or any other Operative Agreement or any indemnity hereafter granted
to the Owner Participant or the Owner Trustee in its individual capacity
pursuant to the Lease or the Participation Agreement, (ii) proceeds of public
liability insurance (or government indemnities in lieu thereof) in respect of
the Aircraft payable as a result of insurance claims paid for the benefit of,
or losses suffered by, the Owner Trustee or the Indenture Trustee in their
respective individual capacities or by the Owner Participant, or their
respective successors, permitted assigns or Affiliates, (iii) proceeds of
insurance maintained with respect to the Aircraft by the Owner Participant
(whether directly or through the Owner Trustee) maintained in accordance with
Section 13.05 of the Lease but not required under Article 13 of the Lease,
(iv) payments of Supplemental Rent by the Lessee in respect of any amounts
payable under the Tax Indemnity Agreement, (v) any purchase price paid to the
Owner Participant for its interest in the Trust Estate pursuant to Section
7.03(d) of the Participation Agreement, (vi) subject to Section 3.05 of the
Lease, payments constituting increases in Basic Rent attributable to payments
arising pursuant to Section 5 of the Tax Indemnity Agreement, (vii) any
payments in respect of interest to the extent attributable to payments
referred to in clauses (i) through (vi) above and (viii) any right to demand,
collect or otherwise receive and enforce the payment of any amount described
in clauses (i) through (v) and (vii) above (except with respect to interest
attributable to payments referred to in clause (vi) above).
Expense; Expenses. Have the meaning specified in Section 9.01(a) of
the Participation Agreement.
Fair Market Renewal Term. A term with respect to which the Lessee has
exercised its option to renew the Lease pursuant to the second paragraph of
Section 4.01(a) thereof and with respect to which the conditions set forth in
such Section 4.01(a) are met.
Fair Market Rental. An amount determined on the basis of, and equal
in amount to, the rental which would be obtained in an arm's-length
transaction between an informed and willing lessee and an informed and willing
lessor unaffiliated with such lessee, neither being under any compulsion to
lease. In such determination, it shall be assumed that the Aircraft is in the
condition required under the Lease in the case of return of the Aircraft
pursuant to Article 12 of the Lease and Fair Market Rental shall be determined
in accordance with the provisions of Section 4.03 of the Lease.
Fair Market Value. An amount determined on the basis of, and equal in
amount to, the value which would be obtained in an arm's-length transaction
between an informed and willing purchaser under no compulsion to buy and an
informed and willing seller unaffiliated with such purchaser and under no
compulsion to sell, assuming the Aircraft (or other property) is unencumbered
by the Lease. In such determination, except for purposes of Section 17.01 of
the Lease (when it shall be determined based upon the actual condition and
location of the Aircraft), it shall be assumed that the Aircraft is in the
condition required under the Lease in the case of return of the Aircraft
pursuant to Article 12 of the Lease and Fair Market Value shall be determined
in accordance with the provisions of Section 4.03 of the Lease.
Federal Aviation Administration; FAA. The United States Federal
Aviation Administration and any successor agency or agencies thereto.
Final Drawing. Has the meaning specified in Section 1.01 of the
Intercreditor Agreement.
Fixed Renewal Rent. Semi-annual payments of rent during the Fixed
Renewal Term equal to the lesser of (i) Fair Market Rental as determined as of
the commencement of such Fixed Renewal Term and (ii) 50% of the average actual
semi-annual Basic Rent payable during the Basic Term.
Fixed Renewal Term. The term with respect to which the Lessee has
exercised its option to renew the Lease pursuant to the first paragraph of
Section 4.01(a) thereof and with respect to which the conditions set forth in
such Section 4.01(a) are met.
FPO Price. Has the meaning set forth in Section 4.02(a)(F) of the
Lease.
French Pledge Agreement. The French Pledge Agreement dated as of May
1, 1997 between the Owner Trustee and the Indenture Trustee.
FSB. First Security Bank, National Association, a national banking
association.
Government. The United States of America or an agency or
instrumentality thereof the obligations of which bear the full faith and
credit of the United States of America.
GTA. The General Terms Agreement dated as of July 3, 1991 between the
Engine Manufacturer and the Lessee related to the purchase by the Lessee of the
Engines as originally executed or as modified, amended or supplemented in
accordance with the terms thereof, but only insofar as the General Terms
Agreement relates to the Engines, to the extent assigned to the Owner Trustee
pursuant to the Engine Warranty Assignment.
Holder of a Certificate; Certificate Holder; Holder. As of any
particular time, the Person in whose name a Certificate shall be registered
(but not including the holder of any Pass Through Certificate).
Indemnitee. Each of SSB, in its individual capacity and as Owner
Trustee and Lessor, the Subordination Agent, in its individual capacity and in
its capacity as Subordination Agent, each Liquidity Provider, the Owner
Participant, the Indenture Trustee, in its individual capacity and as trustee,
the Owner Participant Guarantor and any successor (including any trustee which
may succeed to the Lessor's interest under the Lease), Affiliate, assign,
officer, director, employee, agent and servant of any of the foregoing, the
Lessor's Estate and the Trust Indenture Estate. Neither the Pass Through
Trustee nor any holder of a Pass Through Certificate shall be deemed to be an
Indemnitee.
Indenture. The Trust Indenture and Security Agreement (Federal
Express Corporation Trust No. N674FE), dated as of May 1, 1997, between the
Lessor and the Indenture Trustee, as supplemented by the Indenture and
Security Agreement Supplement.
Indenture and Security Agreement Supplement. The Indenture and
Security Agreement Supplement No. 1 (Federal Express Corporation Trust No.
N674FE) to be dated the Delivery Date, substantially in the form of Exhibit A
to the Indenture.
Indenture Default. Any event or condition which, with the lapse of
time or the giving of notice, or both, would constitute an Indenture Event of
Default.
Indenture Documents. Has the meaning specified in the Granting
Clause of the Indenture.
Indenture Event of Default. Each of the events specified in Section
7.01 of the Indenture.
Indenture Trustee. First Security Bank, National Association, a
national banking association, not in its individual capacity but solely as
Indenture Trustee under the Indenture.
Indenture Trustee's Liens. Any Lien against, on or with respect to
the Aircraft, the Lessor's Estate or the Trust Indenture Estate or any part
thereof resulting from (i) claims against the Indenture Trustee not related to
the administration of the Trust Indenture Estate or any transactions pursuant
to the Indenture or any document included in the Trust Indenture Estate, (ii)
any act or omission of the Indenture Trustee which is not related to the
transactions contemplated by the Operative Agreements or is in violation of
any of the terms of the Operative Agreements or (iii) Taxes imposed against
the Indenture Trustee in its individual capacity in respect of which the Lessee
has not indemnified (and is not obligated to indemnify) the Indenture Trustee
in such capacity.
Independent Appraisal. An appraisal conducted pursuant to Section
4.03 of the Lease.
Independent Investment Banker. An independent investment banking
institution of national standing appointed by the Lessee that is independent
in fact, does not have any direct financial interests, or any material
indirect financial interest, in the Lessee or any Affiliate of the Lessee, and
is not connected with the Lessee or any Affiliate of the Lessee, as an
officer, employee, promoter, underwriter, trustee, partner, director or Person
performing similar functions; provided, that if the Indenture Trustee shall
not have received written notice of such an appointment at least 10 days prior
to the Prepayment Date, "Independent Investment Banker" shall mean such an
institution appointed by the Indenture Trustee.
Intercreditor Agreement. The Intercreditor Agreement dated as of May
1, 1997, among the Pass Through Trustee, the Class A Liquidity Provider, the
Class B Liquidity Provider and the Subordination Agent.
Interest Drawing. Has the meaning specified in Section 1.01 of the
Intercreditor Agreement.
Invoice. The invoice for the Aircraft given by AVSA to the Lessor.
Lease. The Lease Agreement (Federal Express Corporation Trust No.
N674FE) dated as of May 1, 1997, entered into by the Lessor and the Lessee
concurrently with the execution and delivery of the Indenture, including,
without limitation, supplementation by one or more Lease Supplements entered
into pursuant to the applicable provisions of the Lease.
Lease Supplement. The Lease Supplement No. 1 (Federal Express
Corporation Trust No. N674FE) to be dated the Delivery Date, substantially in
the form of Exhibit A to the Lease.
Lease Term. The period commencing on the Delivery Date and ending at
the end of the Basic Term.
Lessee. Federal Express Corporation, a Delaware corporation.
Lessee Documents. Has the meaning set forth in Section 6.01(b) of the
Participation Agreement.
Lessor. State Street Bank and Trust Company of Connecticut, National
Association, a national banking association, not in its individual capacity
but solely as Owner Trustee under the Trust Agreement.
Lessor's Estate. All estate, right, title and interest of the Owner
Trustee in and to the Collateral Account, the Liquid Collateral, the Aircraft,
the Lease, any Lease Supplement, the Participation Agreement, AVSA's FAA Bill
of Sale, AVSA's Warranty Bill of Sale, the Airbus Guaranty, the Purchase
Agreement, the Purchase Agreement Assignment, the Consent and Agreement, the
AVSA Consent and Agreement, the Consent and Guaranty (to the extent assigned
by the Purchase Agreement Assignment), any Ancillary Agreement, the GTA, the
Engine Warranty Assignment, the Engine Consent, any warranty with respect to
the Airframe and the Engines, all amounts of Basic Rent and Supplemental Rent,
including without limitation, insurance proceeds (other than insurance
proceeds payable to or for the benefit of the Owner Trustee in its individual
capacity or the Owner Participant) and requisition, indemnity or other
payments of any kind for or with respect to the Aircraft (except amounts owing
to the Owner Participant, to the Indenture Trustee, to the Owner Trustee in its
individual capacity, or to any of their respective directors, officers,
employees and agents pursuant to Articles 8 and 9 of the Participation
Agreement), and all other property of the Owner Trustee purportedly subjected
to the Lien of the Indenture by the Granting Clause thereof; provided that in
no event shall "Lessor's Estate" include any Excepted Payment.
Lessor's Liens. Liens against, on or with respect to the Aircraft,
the Lessor's Estate or the Trust Indenture Estate or any part thereof, title
thereto or any interest therein arising as a result of (i) claims against the
Lessor, in its individual capacity or as Owner Trustee, or the Owner
Participant, in each case not related to the transactions contemplated by the
Operative Agreements, (ii) acts or omissions of the Lessor in its individual
capacity or as Owner Trustee, and, in the case of the Lessor in its individual
capacity, arising from its gross negligence or willful misconduct or expressly
prohibited under the Operative Agreements and any act or omission of the Owner
Participant which is in violation of any of the terms of the Operative
Agreements, (iii) Taxes or Expenses imposed against the Lessor, in its
individual capacity or as Owner Trustee, Owner Participant, Lessor's Estate or
the trust created by the Trust Agreement which are not required to be
indemnified against by the Lessee pursuant to the Participation Agreement by
reason of Section 8.01(b) or 9.01(b) thereof and which are not required to be
indemnified against by the Lessee pursuant to the Tax Indemnity Agreement, or
(iv) claims against the Lessor or the Owner Participant arising from the
voluntary transfer by the Lessor or the Owner Participant of its interests in
the Aircraft other than a transfer of the Aircraft pursuant to Section 4.02(a)
or Article 10 or 11 of the Lease and other than a transfer pursuant to the
exercise of the remedies set forth in Article 17 of the Lease.
Lien. Any mortgage, pledge, lien, charge, encumbrance, lease or
security interest or other similar interest.
Liquid Collateral. All amounts and securities deposited from time to
time in the Collateral Account and all the products, investments, earnings and
proceeds of the foregoing, including, but not limited to, all proceeds of the
investment or conversion thereof, voluntary or involuntary, into cash,
Specified Investments or other property, all rights to payment of any and
every kind, and other forms of obligations, and instruments and other property
which at any time constitute all or part or are included in the proceeds of
any of the foregoing.
Liquidity Facility. Has the meaning specified in Section 1.01 of the
Intercreditor Agreement.
Liquidity Provider. Has the meaning specified in Section 1.01 of the
Intercreditor Agreement.
Losses. Has the meaning specified in Section 17.02(a) of the
Participation Agreement.
Loss Payee. Has the meaning specified in Section 13.02(b)(i) of the
Lease.
Majority in Interest of Certificate Holders. As of a particular date
of determination, the Holders of more than 50% of the aggregate unpaid
principal amount of all Certificates outstanding as of such date excluding for
purposes of this definition any Certificates held by (i) the Owner Trustee or
the Owner Participant or any interests of the Owner Participant unless all
Certificates then outstanding shall be held by the Owner Participant, (ii) the
Lessee or (iii) any Affiliate of any thereof.
Make-Whole Premium. An amount determined as of the day before the
applicable Prepayment Date (or date of purchase, as the case may be) which an
Independent Investment Banker determines to be equal to the excess, if any, of
(i) the present value of the remaining scheduled payments of such principal
amount or portion thereof and interest thereon (excluding interest accrued
from the immediately preceding Payment Date to such Prepayment Date or date of
purchase, as the case may be) to the Maturity of such Certificate in
accordance with generally accepted financial practices assuming a 360-day year
consisting of twelve 30-day months at a discount rate equal to the Treasury
Yield, all as determined by the Independent Investment Banker over (ii) the
outstanding principal amount of such Certificate plus accrued interest.
Manufacturer. Airbus Industrie G.I.E., a groupement d'interet
economique formed under the laws of France.
Maturity. With respect to any Certificate, the date on which the
final principal amount of such Certificate is scheduled to be due and payable.
Moody's. Moody's Investors Service, Inc.
Net Present Value of Rents. The net present value, as of the
Delivery Date, of Basic Rent set forth in Schedule II of the Lease, discounted
at a rate equal to the Debt Rate per annum compounded semi-annually.
Non-U.S. Person. Any Person other than a U.S. Person.
Obsolete Parts. Parts which are severable from the Aircraft in
accordance with clauses (ii) and (iii) of the proviso to Section 9.02(b) of
the Lease and the Lessee in good faith determines to be obsolete or no longer
suitable or appropriate for use on the Airframe or any Engine.
Officer's Certificate. When delivered pursuant to the Indenture, a
certificate signed by a Responsible Officer of the Lessee or the Owner
Trustee, as the case may be, and delivered to the Indenture Trustee. Each
such certificate shall include the statements provided for in Section 15.07 of
the Indenture.
Operative Agreements. The Participation Agreement, the Trust
Agreement, AVSA's FAA Bill of Sale, AVSA's Warranty Bill of Sale, the Airbus
Guaranty, the Purchase Agreement, the Purchase Agreement Assignment, the GTA,
the Engine Warranty Assignment, the French Pledge Agreement, the Lease, the
Lease Supplement, the Owner Participant Guaranty, the Owner Trustee Guaranty,
if any, any Ancillary Agreement entered into by or with the written consent of
the Indenture Trustee, which by its terms is an Operative Agreement, the
Certificates outstanding at the time of reference, the Indenture, the
Indenture and Security Agreement Supplement, the Consent and Agreement, the
AVSA Consent and Agreement, the Consent and Guaranty (to the extent assigned
by the Purchase Agreement Assignment), the Engine Consent, the Tax Indemnity
Agreement, each Liquidity Facility, the Intercreditor Agreement, the
Collateral Account Control Agreement and any Assignment and Assumption
Agreement.
Opinion of Counsel. When delivered pursuant to the Indenture, a
written opinion of legal counsel, who in the case of counsel (a) for the
Lessee may be (i) an attorney employed by the Lessee who is generally
empowered to deliver such written opinions, (ii) Davis Polk & Wardwell or a
successor firm or (iii) other counsel designated by the Lessee and reasonably
satisfactory to the Indenture Trustee and (b) for the Owner Trustee or the
Indenture Trustee, an attorney selected by such Person and, in the case of the
Owner Trustee, reasonably satisfactory to the Indenture Trustee.
Outstanding. When used with respect to Certificates, as of the date
of determination and subject to the provisions of Section 10.04 of the
Indenture, all Certificates theretofore executed and delivered under the
Indenture, with the exception of the following:
(i) Certificates theretofore cancelled by the Indenture Trustee or
delivered to the Indenture Trustee for cancellation pursuant to
Section 2.08 of the Indenture or otherwise;
(ii) Certificates for which prepayment money in the necessary amount
has been theretofore deposited with the Indenture Trustee in trust
for the Holders of such Certificates pursuant to Section 14.01 of the
Indenture; provided, that if such Certificates are to be prepaid,
notice of such prepayment has been duly given pursuant to the
Indenture or provision therefor satisfactory to the Indenture Trustee
has been made; and
(iii) Certificates in exchange for or in lieu of which other
Certificates have been executed and delivered pursuant to Article II
of the Indenture.
Owner Participant. The trustor originally named in the Trust
Agreement and any successor thereto, and any Person to which the Owner
Participant transfers, in accordance with the Trust Agreement, its right,
title and interest in and to the Operative Agreements and the Lessor's Estate.
Owner Participant Guarantor. Philip Morris Capital Corporation, a
Delaware corporation, and any other provider of an Owner Participant Guaranty.
Owner Participant Guaranty. The Owner Participant Guaranty dated the
Certificate Closing Date by the Owner Participant Guarantor in favor of the
Lessee, the Owner Trustee, the Indenture Trustee and the Pass Through Trustee,
and any guaranty delivered in compliance with Section 7.03(d) of the
Participation Agreement.
Owner Trustee. SSB, not in its individual capacity except as
otherwise expressly stated, but solely as Owner Trustee under the Trust
Agreement.
Owner Trustee Guarantor. The provider of an Owner Trustee Guaranty.
Owner Trustee Guaranty. Any guaranty delivered in compliance with
Section 11.01(b)(ii) of the Participation Agreement.
Owner's Economic Return. The Owner Participant's anticipated net
after-tax book yield and aggregate after-tax cash during the Basic Term
utilizing the multiple investment sinking fund method of analysis, computed on
the basis of the same methodology and assumptions as were utilized by the
Owner Participant in determining Basic Rent, Stipulated Loss Value and
Termination Value percentages, as the case may be, as such assumptions may be
adjusted for events which have been the basis of adjustments to Rent pursuant
to Section 3.04 of the Lease.
Participation Agreement. The Participation Agreement (Federal Express
Corporation Trust No. N674FE), dated as of May 1, 1997, among the Lessee, the
Owner Trustee not in its individual capacity except as otherwise expressly
provided therein, but solely as owner trustee, the Owner Participant, the
Indenture Trustee not in its individual capacity except as otherwise expressly
provided therein, but solely as indenture trustee, the Pass Through Trustee
not in its individual capacity except as otherwise expressly provided therein,
but solely as pass through trustee and the Subordination Agent not in its
individual capacity except as otherwise expressly provided therein, but solely
as subordination agent.
Parts. All appliances, parts, components, instruments, appurtenances,
accessories, furnishings and other equipment of whatever nature (other than
complete Engines or engines) which may from time to time be incorporated or
installed in or attached to the Airframe or any Engine or title to which
remains vested in the Lessor pursuant to Article 8 of the Lease.
Pass Through Agreement. The Pass Through Trust Agreement dated as of
May 1, 1997 between the Lessee and the Pass Through Trustee.
Pass Through Certificates. Any of the Pass Through Certificates,
1997-1-A, the Pass Through Certificates, 1997-1-B or the Pass Through
Certificates, 1997-1-C, in each case as issued by the related Pass Through
Trust; and "Pass Through Certificates" means all of the Pass Through
Certificates issued by each of the Pass Through Trusts.
Pass Through Closing Date. The Business Day on which the sale of the
Pass Through Certificates to the Underwriters pursuant to the Underwriting
Agreement takes place.
Pass Through Trust. The Federal Express Corporation 1997-1 Pass
Through Trust Class A, Federal Express Corporation 1997-1 Pass Through Trust
Class B and Federal Express Corporation 1997-1 Pass Through Trust Class C, in
each case formed pursuant to the related Series Supplement in accordance with
the Pass Through Agreement; and "Pass Through Trusts" means all of such Pass
Through Trusts.
Pass Through Trustee. First Security Bank, National Association, a
national banking association, in its capacity as Pass Through Trustee under
the Pass Through Agreement and each Pass Through Trust.
Past Due Rate. In respect of (A) any amount payable to the Owner
Participant or the Owner Trustee a rate per annum during the period from and
including the due date to but excluding the date on which such amount is paid
in full equal to 2% plus the Debt Rate and (B) any principal of or interest on
any Certificate or any other amount payable under the Indenture, any
Certificate or any other Operative Agreement that is not paid when due
(whether at Maturity, by acceleration, by optional or mandatory prepayment or
otherwise) to any Holder, the Indenture Trustee or the Pass Through Trustee, a
rate per annum during the period from and including the due date to but
excluding the date on which such amount is paid in full equal to (i) in the
case of any such amount payable to the Holder of any Certificate, 2% plus the
interest rate applicable to such Certificate and (ii) in the case of any other
such amount, 2% plus the Debt Rate.
Payment Date. Each January 15 and July 15 commencing on July 15,
1997.
Payment Default. Any event specified in Section 16.01(a) or 16.01(b)
of the Lease which with the giving of notice or lapse of time or both would
constitute an Event of Default.
Permitted Investments. Those investments enumerated in Section
23.01(a) (i), (ii), (iii) and (iv) of the Lease.
Person. Any individual, sole proprietorship, partnership, joint
venture, joint stock company, trust, unincorporated organization, association,
corporation, institution, entity or government (federal, state, local,
foreign or any agency, instrumentality, division or body thereof).
Preliminary Notice. Has the meaning specified in Section 4.01(a) of
the Lease.
Premium Termination Date. With respect to the Series A Certificates,
December 27, 2011, with respect to the Series B Certificates, February 5, 2010
and with respect to the Series C Certificates, March 22, 2007.
Prepayment Date. Has the meaning specified in Section 6.02(b) of the
Indenture.
Prepayment Price. Has the meaning specified in Section 6.02(b) of the
Indenture.
Principal Amount. With respect to a Certificate means the stated
original principal amount of such Certificate and, with respect to all
Certificates, means the aggregate stated original principal amounts of all
Certificates.
Property. Any right or interest in or to property of any kind
whatsoever, whether real, personal or mixed and whether tangible or intangible.
Proposed Termination Date. The proposed date of termination of the
Lease as specified by the Lessee in its notice given pursuant to Section 10.01
thereof.
Purchase Agreement. The Airbus A300-600R Freighter Purchase Agreement,
dated as of July 3, 1991 between AVSA and the Lessee, including all exhibits,
appendices and letter agreements attached thereto as originally executed or as
modified, amended or supplemented in accordance with the terms thereof, but
only to the extent that the foregoing relates to the Aircraft and to the
extent assigned pursuant to the Purchase Agreement Assignment.
Purchase Agreement Assignment. The Purchase Agreement Assignment
(Federal Express Corporation Trust No. N674FE), dated as of May 1, 1997 between
the Lessor and the Lessee.
Purchase Price. Has the meaning specified in Ancillary Agreement II.
Record Date. With respect to Payment Dates under the Indenture
(except a date for payment of defaulted interest), December 31 for January 15
Payment Dates and June 30 for July 15 Payment Dates, whether or not such date
is a Business Day.
Recourse Amount. Has the meaning specified in Section 17.10 of the
Participation Agreement.
Refinancing. A non-recourse loan to the Lessor arranged pursuant to
Section 15.01 of the Participation Agreement.
Register. Has the meaning set forth in Section 3.02 of the Indenture.
Registrar. Has the meaning set forth in Section 3.02 of the
Indenture.
Regulation D. Regulation D of the Board of Governors of the Federal
Reserve System (or any successor), as the same may be modified and
supplemented and in effect from time to time.
Related Indentures. Collectively, the Trust Indenture and Security
Agreement for each of Federal Express Corporation Trust Nos. N670FE, N671FE,
N672FE, N673FE, N583FE and N584FE, each dated as of May 1, 1997, between the
Owner Trustee and the Indenture Trustee, the Trust Indenture and Security
Agreement for Federal Express Corporation Trust No. N581FE, dated as of May 1,
1997, between Wilmington Trust Company, as owner trustee and the Indenture
Trustee, and the Trust Indenture and Security Agreement for Federal Express
Corporation Trust No. N587FE, dated as of December 1, 1996, as amended and
restated as of May 1, 1997, between Wilmington Trust Company, as owner trustee
and the Indenture Trustee.
Remaining Weighted Average Life. On a given date with respect to any
Certificate the number of days equal to the quotient obtained by dividing (i)
the sum of each of the products obtained by multiplying (a) the amount of each
then remaining scheduled payment of principal of such Certificate by (b) the
number of days from and including such prepayment date to but excluding the
dates on which each such payment of principal is scheduled to be made; by (ii)
the then outstanding principal amount of such Certificate.
Renewal Rent. The amount payable by the Lessee as rent in accordance
with Section 4.01 of the Lease during any Renewal Term.
Renewal Term. One or more terms with respect to which the Lessee has
exercised its option to renew the Lease pursuant to Section 4.01(a) thereof.
Rent. All payments due from the Lessee under the Lease as Basic Rent,
Renewal Rent and Supplemental Rent, collectively.
Rent Payment Date. December 23, 2020 and each January 15 and July 15
commencing on January 15, 1998.
Reoptimization Date. Has the meaning specified in Section 15.02(a)
of the Participation Agreement.
Replacement Aircraft. Any aircraft substituted for the Aircraft
pursuant to Section 11.03(a) of the Lease.
Replacement Airframe. Has the meaning set forth in Section 11.03 of
the Lease.
Replacement Engine. A General Electric CF6-80C2-A5F engine (or an
engine of the same or another manufacturer) of equal or greater value,
airworthiness, remaining useful life and utility as the Engine being replaced,
together with all Parts relating to such engine; provided, however, that if
such replacement engine is not a General Electric CF6-80C2-A5F engine, such
replacement engine must then be commonly used in the commercial aviation
industry on Airbus A300-600 airframes.
Responsible Officer. With respect to the Owner Trustee (except for
purposes of the Trust Agreement in which case the definition of Responsible
Officer set forth in Section 3.10 of the Trust Agreement is applicable) or the
Indenture Trustee, any officer in its Corporate Trust Administration, as the
case may be, designated by such Person to perform obligations under the
Operative Agreements, and with respect to any other party, any corporate
officer or (except in the case of the Owner Participant) other employee of a
party who, in the normal performance of his or her operational
responsibilities, with respect to the subject matter of any covenant,
agreement or obligation of such party pursuant to any Operative Agreement,
would have responsibility for and knowledge of such matter and the
requirements of any Operative Agreement with respect thereto.
S&P. Standard & Poor's Ratings Group.
Scheduled Delivery Date. The Delivery Date specified in the Delivery
Notice pursuant to Section 3.01 of the Participation Agreement.
SEC. The Securities and Exchange Commission of the United States and
any successor agencies or authorities.
Secured Obligations. Has the meaning specified in the Granting
Clause of the Indenture.
Securities Act. The Securities Act of 1933, as amended.
Series "A" or "Series A Certificates". Certificates issued and
designated as "Series A" under the Indenture, in the Principal Amount and
maturities and bearing interest as specified in Exhibit B to the Indenture
under the heading "Series A".
Series "B" or "Series B Certificates". Certificates issued and
designated as "Series B" under the Indenture, in the Principal Amount and
maturities and bearing interest as specified in Exhibit B to the Indenture
under the heading "Series B".
Series "C" or "Series C Certificates". Certificates issued and
designated as "Series C" under the Indenture, in the Principal Amount and
maturities and bearing interest as specified in Exhibit B to the Indenture
under the heading "Series C".
Series Supplement or Series Supplements. The Series Supplement
1997-1-A to be executed and delivered by the Lessee and the Pass Through
Trustee, the Series Supplement 1997-1-B to be executed and delivered by the
Lessee and the Pass Through Trustee or the Series Supplement 1997-1-C to be
executed and delivered by the Lessee and the Pass Through Trustee.
Sinking Fund Redemption Date. Has the meaning specified in Section
6.06 of the Indenture.
Sinking Fund Redemption Price. Has the meaning specified in Section
6.06 of the Indenture.
Special Aviation Counsel. Daugherty, Fowler & Peregrin.
Specified Investments. Shall mean (a) direct obligations of the
United States of America or obligations fully guaranteed by the United States
of America; (b) commercial paper rated A-1/P-1 by S&P and Moody's,
respectively or, if such ratings are unavailable, rated by any nationally
recognized rating organization in the United States equal to the highest
rating assigned by such rating organization; (c) investments in negotiable
certificates of deposit, time deposits, banker's acceptances, commercial paper
or other direct obligations of, or obligations guaranteed by, commercial banks
organized under the laws of the United States or of any political subdivision
thereof (or any U.S. branch of a foreign bank) with issuer ratings of at least
B/C by Thomson Bankwatch, having maturities no later than 90 days following
the date of such investment; (d) overnight federal funds transactions with
members of the Federal Reserve System arranged by federal funds brokers; or
(e) overnight repurchase agreements with respect to the securities described
in clause (a) above entered into with an office of a bank or trust company
which is located in the United States of America or any bank or trust company
which is organized under the laws of the United States or any state thereof
and has capital, surplus and undivided profits aggregating at least $500
million.
SSB. State Street Bank and Trust Company of Connecticut, National
Association, a national banking association.
Stipulated Loss Value. As of any Stipulated Loss Value Determination
Date during the Basic Term, the amount determined by multiplying the Purchase
Price by the percentage set forth in Schedule III of the Lease under the
heading "Stipulated Loss Value Factor" opposite such date (as such Schedule
III may be adjusted from time to time as provided in Section 3.04 of the
Lease), and during any Renewal Term, the amount determined pursuant to Section
4.01(b) of the Lease. Notwithstanding any other provisions of the Lease or
the Participation Agreement or the Indenture, each Stipulated Loss Value for
the Aircraft shall be, under any circumstances and in any event, an amount,
together with so much of the arrears portion of Basic Rent due and owing
through the date of payment of Stipulated Loss Value as does not constitute an
Excepted Payment, at least sufficient to pay in full as of such date of
payment the aggregate unpaid principal amount of and accrued interest on the
Certificates outstanding on such date of payment. Subject to the immediately
preceding sentence, it is understood and agreed that the amounts set forth on
Schedule III of the Lease, for dates other than Rent Payment Dates on which
arrears Basic Rent is due, fully reflect appropriate Basic Rent accruals and
credits of unearned Basic Rent through such date and, accordingly, no further
accrual or credit shall be required through such date whenever Stipulated Loss
Value is to be calculated with reference to any such date; provided that if
amounts in respect of Stipulated Loss Value are payable under the Operative
Agreements after the Stipulated Loss Determination Date in respect of which
such Stipulated Loss Value was determined, the Lessor shall be compensated
during the period from the Stipulated Loss Determination Date to such payment
date in accordance with the provisions of the Operative Agreements.
Stipulated Loss Value Determination Date. Each date set forth on
Schedule III of the Lease.
Subordination Agent. First Security Bank, National Association, a
national banking association, not in its individual capacity but solely as
Subordination Agent.
Supplemental Rent. (a) All amounts, liabilities and obligations
which the Lessee assumes or agrees to perform or pay under the Lease or under
the Participation Agreement or Tax Indemnity Agreement or any Ancillary
Agreement or any other Operative Agreement to the Lessor, the Owner
Participant, the Indenture Trustee, the Subordination Agent, any Liquidity
Provider or others, including, without limitation, payments of Stipulated Loss
Value, FPO Price and amounts calculated by reference to Termination Value, any
amounts of Make-Whole Premium payable under the Indenture to the extent
provided in Section 3.03 of the Lease, and all amounts required to be paid by
Lessee under the agreements, covenants and indemnities contained in the Lease
or in the Participation Agreement or the Tax Indemnity Agreement or any other
Operative Agreement, but excluding Basic Rent and (b) all amounts that the
Owner Trustee is obligated to pay in accordance with clause (b) of the last
paragraph of Section 2.04 of the Indenture.
Tax. Has the meaning set forth in Section 8.01(a) of the
Participation Agreement.
Tax Indemnity Agreement. The Tax Indemnity Agreement (Federal
Express Corporation Trust No. N674FE), dated as of May 1, 1997, between the
Lessee and the Owner Participant.
Term. The Basic Term of the lease for the Aircraft under the Lease
and, if renewed pursuant to Section 4.01 of the Lease, each Renewal Term for
the Aircraft for which the Lease is renewed, or such earlier date on which the
Lease is terminated pursuant to its terms.
Termination Date. A Rent Payment Date during the Basic Term that is
on or after December 31, 2004 in the case of Article 10 of the Lease, and in
the case of (i) Section 4.02(a)(A) of the Lease, the Rent Payment Date falling
on July 15, 2017, (ii) Section 4.02(a)(D) or (E) of the Lease, a Rent
Payment Date that is on or after the seventh anniversary of the Delivery Date
and (iii) Section 4.02(a)(F) of the Lease, the last day of the Basic Term.
Termination Value. As of any Termination Date, the amount determined
by multiplying the Purchase Price by the percentage set forth in Schedule IV
of the Lease under the heading "Termination Value Factor" opposite such
Termination Date (as such Schedule IV may be adjusted from time to time as
provided in Section 3.04 of the Lease). Notwithstanding any other provisions
of the Lease, the Participation Agreement or the Indenture, each Termination
Value shall be, under any circumstances and in any event, an amount, together
with so much of the arrears portion of Basic Rent due and owing through the
date of payment of any amount calculated by reference to Termination Value as
does not constitute an Excepted Payment, at least sufficient to pay in full as
of such date of payment the aggregate unpaid principal amount of and accrued
interest on the Certificates outstanding on such date of payment. Subject to
the immediately preceding sentence, it is understood and agreed that the
amounts set forth on Schedule IV of the Lease, for dates other than Rent
Payment Dates on which arrears Basic Rent is due, fully reflect appropriate
Basic Rent accruals and credits of unearned Basic Rent through such date and,
accordingly, no further accrual or credit shall be required through such date
whenever Termination Value is to be calculated with reference to any such
date; provided that if amounts in respect of Termination Value are payable
under the Operative Agreements after the Termination Date in respect of which
such Termination Value was determined, the Lessor shall be compensated during
the period from the Termination Date to such payment date in accordance with
the provisions of the Operative Agreements.
Transaction Costs. Those costs and expenses set forth in Section
10.01(a) of the Participation Agreement.
Transportation Code. Title 49 of the United States Code, as amended
and in effect on the date of the Lease or as subsequently amended, or any
successor or substituted legislation at the time in effect and applicable, and
the regulations promulgated pursuant thereto.
Treasury Yield. At the time of determination with respect to any
Certificate, the interest rate (expressed as a semi-annual equivalent and as a
decimal and, in the case of United States Treasury bills, converted to a bond
equivalent yield) determined to be the per annum rate equal to the semi-annual
yield to maturity for United States Treasury securities maturing on the
Average Life Date on such Certificate and trading in the public securities
markets either as determined by interpolation between the most recent weekly
average yield to maturity for two series of United States Treasury securities,
trading in public securities markets, (i) one maturing as close as possible to,
but earlier than, the Average Life Date of such Certificate and (ii) the other
maturing as close as possible to, but later than, the Average Life Date of
such Certificate. In each case as published in the most recent H.15(519) or,
if a weekly average yield to maturity for United States Treasury securities
maturing on the Average Life Date of such Certificate is reported on the most
recent H.15 (519), such weekly average yield to maturity as published in such
H.15(919). "H.15(519)" means the weekly statistical release designated as
such, or any successor publication, published by the Board of Governors of the
Federal Reserve System. The date of determination of a Make-Whole Premium
will be the third Business Day prior to the applicable prepayment date and the
"most recent H.15(519)" means the H.15(519) published prior to the close of
business on the third Business Day prior to the applicable prepayment date.
Trust Agreement. The Trust Agreement (Federal Express Corporation
Trust No. N674FE), dated as of May 1, 1997, between the Owner Participant and
the Owner Trustee in its individual capacity.
Trust Estate. The Lessor's Estate.
Trust Indenture Act. The Trust Indenture Act of 1939, as amended.
Trust Indenture Estate. All estate, right, title and interest of the
Indenture Trustee in and to any of the property, rights, interests and
privileges granted to the Indenture Trustee pursuant to the Granting Clause of
the Indenture, other than Excepted Payments and any and all other rights of
the Owner Trustee or the Owner Participant expressly reserved to the Owner
Trustee or the Owner Participant pursuant to the Indenture.
Underwriters. Morgan Stanley & Co. Incorporated, First Chicago
Capital Markets, Inc., Goldman, Sachs & Co. and J.P. Morgan & Co.
Underwriting Agreement. The Underwriting Agreement dated May 22, 1997
among the Lessee and the Underwriters.
United States, U.S. or US. The United States of America.
U.S. Air Carrier. Any United States air carrier as to which there is
in force a certificate issued pursuant to Section 41102(a) or Section 41103 of
the Transportation Code, and as to which there is in force an air carrier
operating certificate issued pursuant to Chapter 447 of the Transportation
Code and Part 121 of the regulations under such Transportation Code, for
aircraft capable of carrying ten (10) or more individuals or 6,000 pounds or
more of cargo, or which may operate as an air carrier by certification or
otherwise under any successor or substitute provision thereof or in absence
thereof.
U.S. Person. A Person described in Section 7701(a)(30) of the Code.
- ------------------------------------------------------------------------------
TRUST INDENTURE AND SECURITY AGREEMENT
(Federal Express Corporation Trust No. N581FE)
Dated as of May 1, 1997
between
WILMINGTON TRUST COMPANY,
Not in its Individual
Capacity, but solely
As Owner Trustee,
Owner Trustee
and
FIRST SECURITY BANK, NATIONAL ASSOCIATION,
Not in its Individual
Capacity, but solely
As Indenture Trustee,
Indenture Trustee
COVERING ONE MCDONNELL DOUGLAS MD-11F AIRCRAFT
SERIAL NO. 48419, REGISTRATION NO. N581FE
==============================================================================
TABLE OF CONTENTS
Page
----
Initial Recitals......................................................... 1
Granting Clause.......................................................... 2
Habendum Clause.......................................................... 5
ARTICLE I
DEFINITIONS
Section 1.01. Definitions.............................................. 7
ARTICLE II
ISSUE, EXECUTION, FORM AND
REGISTRATION OF CERTIFICATES;
COLLATERAL ACCOUNT
Section 2.01. Authentication and Delivery of Certificates.............. 7
Section 2.02. Execution of Certificates................................ 8
Section 2.03. Certificate of Authentication............................ 8
Section 2.04. Form and Terms of Certificates; Payments of Principal,
Make-Whole Premium and Interest.......................... 8
Section 2.05. Payments from Trust Indenture Estate Only................ 11
Section 2.06. Registration, Transfer and Exchange...................... 12
Section 2.07. Mutilated, Defaced, Destroyed, Lost and Stolen
Certificates............................................. 13
Section 2.08. Cancellation of Certificates; Destruction Thereof........ 14
Section 2.09. Temporary Certificates................................... 14
Section 2.10. Termination of Interest in Trust Indenture Estate........ 15
Section 2.11. Certificates in Respect of Replacement Aircraft.......... 15
Section 2.12. Assumption of Obligations Under Certificates and Other
Operative Agreements..................................... 15
Section 2.13. Establishment of Collateral Account...................... 15
Section 2.14. Investment of Funds on Deposit in the Collateral Account. 16
Section 2.15. Release of Debt Portion and Lien on the Collateral Account
and the Liquid Collateral on Delivery Date............... 17
Section 2.16. Cut-Off Date............................................. 17
Section 2.17. Subordination............................................ 18
ARTICLE III
COVENANTS
Section 3.01. Payment of Principal, Make-Whole Premium and Interest.... 18
Section 3.02. Offices for Payments, etc................................ 19
Section 3.03. Appointment to Fill a Vacancy in Office of Indenture
Trustee.................................................. 19
Section 3.04. Paying Agents............................................ 19
Section 3.05. Covenants of WTC and the Owner Trustee................... 19
Section 3.06. [Reserved]............................................... 20
Section 3.07. Disposal of Trust Indenture Estate....................... 20
Section 3.08. No Representations or Warranties as to Aircraft or
Documents................................................ 20
Section 3.09. Further Assurances; Financing Statements................. 21
ARTICLE IV
HOLDER LISTS
Section 4.01. Holder Lists; Ownership of Certificates.................. 21
ARTICLE V
RECEIPT, DISTRIBUTION AND APPLICATION OF
INCOME FROM THE TRUST INDENTURE ESTATE
Section 5.01. Basic Rent Distribution.................................. 22
Section 5.02. Event of Loss and Replacement; Prepayment................ 23
Section 5.03. Payment After Indenture Event of Default, etc............ 24
Section 5.04. Certain Payments......................................... 26
Section 5.05. Other Payments........................................... 26
Section 5.06. Payments to Owner Trustee................................ 27
Section 5.07. Application of Payments.................................. 27
Section 5.08. Investment of Amounts Held by Indenture Trustee.......... 27
Section 5.09. Withholding Taxes........................................ 28
ARTICLE VI
PREPAYMENT OF CERTIFICATES
Section 6.01. No Prepayment Prior to Maturity.......................... 29
Section 6.02. Prepayment of Certificates............................... 29
Section 6.03. Notice of Prepayment to Holders.......................... 31
Section 6.04. Deposit of Prepayment Price and Sinking Fund Redemption
Price.................................................... 31
Section 6.05. Certificates Payable on Prepayment Date.................. 31
Section 6.06. Mandatory Sinking Fund Redemption........................ 32
ARTICLE VII
INDENTURE EVENTS OF DEFAULT; REMEDIES
OF INDENTURE TRUSTEE AND HOLDERS
Section 7.01. Indenture Event of Default............................... 34
Section 7.02. Remedies................................................. 36
Section 7.03. Return of Aircraft, etc.................................. 38
Section 7.04. Indenture Trustee May Prove Debt......................... 41
Section 7.05. Remedies Cumulative...................................... 43
Section 7.06. Suits for Enforcement.................................... 43
Section 7.07. Discontinuance of Proceedings............................ 43
Section 7.08. Limitations on Suits by Holders.......................... 44
Section 7.09. Unconditional Right of Holders to Receive Principal,
Interest and Make-Whole Premium, and to Institute
Certain Suits............................................ 44
Section 7.10. Control by Holders....................................... 44
Section 7.11. Waiver of Past Indenture Default......................... 45
Section 7.12. Notice of Indenture Default.............................. 45
Section 7.13. Waiver of Appraisement, etc.; Laws....................... 46
ARTICLE VIII
RIGHTS OF THE OWNER TRUSTEE
AND THE OWNER PARTICIPANTS
Section 8.01. Certain Rights of Owner Trustee and Owner Participants... 46
Section 8.02. Owner Participants' Right to Elect to Prepay or Purchase
the Certificates......................................... 50
Section 8.03. Certain Rights of Owner Participants..................... 51
ARTICLE IX
CONCERNING THE INDENTURE TRUSTEE
Section 9.01. Acceptance of Trusts..................................... 52
Section 9.02. Duties and Responsibilities of the Indenture Trustee;
During an Indenture Event of Default; Prior to an
Indenture Event of Default............................... 53
Section 9.03. Certain Rights of the Indenture Trustee.................. 55
Section 9.04. Indenture Trustee Not Responsible for Recitals,
Disposition of Certificates or Application of Proceeds
Thereof.................................................. 56
Section 9.05. Indenture Trustee and Agents May Hold Certificates;
Collections, etc......................................... 56
Section 9.06. Moneys Held by Indenture Trustee......................... 56
Section 9.07. Right of Indenture Trustee to Rely on Officer's
Certificate, etc......................................... 56
Section 9.08. Replacement Airframes and Replacement Engines............ 57
Section 9.09. Indenture and Security Agreement Supplement for
Replacements............................................. 60
Section 9.10. Effect of Replacement.................................... 60
Section 9.11. Compensation............................................. 60
ARTICLE X
CONCERNING THE HOLDERS
Section 10.01. Evidence of Action Taken by Holders..................... 61
Section 10.02. Proof of Execution of Instruments and of Holding of
Certificates............................................ 61
Section 10.03. Holders to Be Treated as Owners......................... 62
Section 10.04. Certificates Owned by Owner Trustee and the Lessee Deemed
Not Outstanding......................................... 62
Section 10.05. Right of Revocation of Action Taken..................... 63
Section 10.06. ERISA................................................... 63
ARTICLE XI
INDEMNIFICATION OF INDENTURE
TRUSTEE BY OWNER TRUSTEE
ARTICLE XII
SUCCESSOR TRUSTEES
Section 12.01. Notice of Successor Owner Trustee....................... 65
Section 12.02. Resignation and Removal of Indenture Trustee;
Appointment of Successor................................ 65
Section 12.03. Persons Eligible for Appointment as Indenture Trustee... 66
Section 12.04. Acceptance of Appointment by Successor Trustee.......... 66
Section 12.05. Merger, Conversion, Consolidation or Succession to
Business of Indenture Trustee........................... 67
Section 12.06. Appointment of Separate Trustees........................ 68
ARTICLE XIII
SUPPLEMENTS AND AMENDMENTS TO THIS
TRUST INDENTURE AND OTHER DOCUMENTS
Section 13.01. Supplemental Indentures Without Consent of Holders...... 70
Section 13.02. Supplemental Indentures With Consent of Holders......... 71
Section 13.03. Effect of Supplemental Indenture........................ 73
Section 13.04. Documents to Be Given to Indenture Trustee.............. 73
Section 13.05. Notation on Certificates in Respect of Supplemental
Indentures.............................................. 73
Section 13.06. No Request Necessary for Lease Supplement or Indenture
and Security Agreement Supplement....................... 73
Section 13.07. Notices to Liquidity Providers.......................... 73
ARTICLE XIV
SATISFACTION AND DISCHARGE OF INDENTURE;
UNCLAIMED MONEYS
Section 14.01. Satisfaction and Discharge of Indenture; Termination of
Indenture............................................... 74
Section 14.02. Application by Indenture Trustee of Funds Deposited for
Payment of Certificates................................. 75
Section 14.03. Repayment of Moneys Held by Paying Agent................ 75
Section 14.04. Transfer of Moneys Held by Indenture Trustee and Paying
Agent Unclaimed for Two Years and Eleven Months......... 75
ARTICLE XV
MISCELLANEOUS
Section 15.01. Capacity in Which Acting................................ 76
Section 15.02. No Legal Title to Trust Indenture Estate in Holders..... 76
Section 15.03. Sale of Trust Indenture Estate by Indenture Trustee is
Binding................................................. 76
Section 15.04. Indenture for Benefit of Owner Trustee, Indenture
Trustee, Owner Participants, Holders and Liquidity
Providers............................................... 76
Section 15.05. No Action Contrary to the Lessee's Rights Under the
Lease................................................... 77
Section 15.06. Notices................................................. 77
Section 15.07. Officer's Certificates and Opinions of Counsel;
Statements to Be Contained Therein...................... 78
Section 15.08. Severability............................................ 78
Section 15.09. No Oral Modifications or Continuing Waivers............. 79
Section 15.10. Successors and Assigns.................................. 79
Section 15.11. Headings................................................ 79
Section 15.12. Normal Commercial Relations............................. 79
Section 15.13. Governing Law; Counterparts............................. 79
Exhibit A -- Form of Indenture and Security Agreement Supplement
Exhibit B -- Form of Certificate
Schedule I -- [Reserved]
Schedule II -- Definitions
TRUST INDENTURE AND SECURITY AGREEMENT
(FEDERAL EXPRESS CORPORATION TRUST NO. N581FE)
TRUST INDENTURE AND SECURITY AGREEMENT (FEDERAL EXPRESS CORPORATION
TRUST NO. N581FE) dated as of May 1, 1997 (the "Indenture"), between
WILMINGTON TRUST COMPANY, a Delaware banking corporation, not in its
individual capacity, except as otherwise specifically set forth herein (when
acting in such individual capacity, "WTC"), but solely as owner trustee (the
"Owner Trustee") under the Trust Agreement, as defined herein, and FIRST
SECURITY BANK, NATIONAL ASSOCIATION, a national banking association, as
Indenture Trustee hereunder (the "Indenture Trustee").
W I T N E S S E T H:
WHEREAS, capitalized terms used herein shall have the respective
meanings set forth or referred to in Article I hereof;
WHEREAS, the Owner Participants and WTC have, immediately prior to the
execution and delivery of this Indenture, entered into a Trust Agreement
(Federal Express Corporation Trust No. N581FE) dated as of the date hereof (as
amended or otherwise modified from time to time in accordance with the
provisions thereof and of the Participation Agreement, the "Trust Agreement"),
whereby, among other things, WTC has declared a certain trust for the use and
benefit of the Owner Participants, subject, however, to the Lien of this
Indenture for the use and benefit of, and with the priority of payment to, the
holders of the Certificates issued hereunder, and the Owner Trustee is
authorized and directed to execute and deliver this Indenture;
WHEREAS, the Owner Trustee desires by this Indenture, among other
things (i) to provide for the issuance by the Owner Trustee of Certificates as
provided in the Participation Agreement, and (ii) to provide for the
assignment, mortgage and pledge by the Owner Trustee to the Indenture Trustee,
as part of the Trust Indenture Estate hereunder of the Owner Trustee's right,
title and interest in the Liquid Collateral and after the Delivery Date for
the assignment, mortgage and pledge by the Owner Trustee to the Indenture
Trustee, as part of the Trust Indenture Estate hereunder, of among other
things, certain of the Owner Trustee's estate, right, title and interest in
and to the Aircraft and the Indenture Documents and certain payments and other
amounts (other than Excepted Payments) received hereunder or thereunder in
accordance with the terms hereof, as security for, among other things, the
Owner Trustee's obligations to the Certificate Holders and for the benefit and
security of such Holders;
WHEREAS, all things have been done to make the Certificates, when
executed by the Owner Trustee, and authenticated, issued and delivered
hereunder, the valid obligations of the Owner Trustee; and
WHEREAS, all things necessary to make this Indenture the valid,
binding and legal obligation of the Owner Trustee, enforceable in accordance
with its terms, have been done and performed and have happened.
NOW, THEREFORE, the parties agree as follows:
GRANTING CLAUSE
NOW, THEREFORE, in consideration of the mutual promises contained
herein and to secure (i) the prompt payment of the principal of and Make-Whole
Premium, if any, and interest on, and all other amounts due with respect to,
all the Certificates from time to time outstanding under this Indenture and
all other amounts due hereunder and (ii) the performance and observance by the
Owner Trustee of all the agreements, covenants and provisions in this
Indenture, in the Certificates, in the Participation Agreement and in the
Lease contained for the benefit of the Holders of the Certificates, and the
prompt payment of any and all amounts from time to time owing under the
Participation Agreement by the Owner Trustee, the Owner Participants or the
Lessee to the Holders (collectively the "Secured Obligations") and for the
uses and purposes and subject to the terms and provisions of this Indenture,
and in consideration of the premises and of the covenants in this Indenture
and in the Certificates and of the purchase of the Certificates by their
Holders, and of the sum of $1 paid to the Owner Trustee by the Indenture
Trustee at or before the delivery of this Indenture, the receipt and
sufficiency of which is hereby acknowledged, the Owner Trustee has granted,
bargained, sold, assigned, transferred, conveyed, mortgaged, pledged, granted
a first priority security interest in and confirmed, and does hereby grant,
bargain, sell, assign, transfer, convey, mortgage, pledge and grant a first
priority security interest in and confirm to the Indenture Trustee, its
successors and assigns, in trust for the equal and ratable security and
benefit of the Holders from time to time of the Certificates, a first priority
security interest in and first mortgage Lien on all estate, right, title and
interest of the Owner Trustee in, to and under the following described
property, rights and privileges other than Excepted Payments, which
collectively, excluding Excepted Payments but including all property
specifically subjected to the Lien of this Indenture by the terms hereof, by
any Indenture and Security Agreement Supplement or any mortgage supplemental
to this Indenture, are included within the Trust Indenture Estate, subject
always to the rights granted to the Owner Trustee or the Owner Participants
hereunder and to the other terms and conditions of this Indenture:
(1) The Airframe, as the same is more particularly described in the
Indenture and Security Agreement Supplement and any airframe substituted in
replacement thereof pursuant to the provisions of this Indenture; the Engines,
as the same are more particularly described in the Indenture and Security
Agreement Supplement, whether or not such Engines shall be installed in or
attached to the Airframe or any other airframe, and any Replacement Engine
therefor; and all Parts in respect of the Airframe and the Engines and all
records, logs and other documents at any time maintained with respect to the
foregoing property;
(2) The Lease and all Rent thereunder, including, without limitation,
all amounts of Basic Rent and Supplemental Rent, and payments of any kind
thereunder and including all rights of the Owner Trustee to execute any
election or option or to give or receive any notice, consent, waiver or
approval under or in respect of the Lease or to accept any surrender of the
Aircraft or any part thereof as well as any rights, powers or remedies on the
part of the Owner Trustee, whether arising under the Lease or by statute or at
law or in equity or otherwise arising out of any Event of Default;
(3) The Modification Agreement, the GTA, the Engine Warranty
Assignment and the Engine Consent, the Bills of Sale and the Participation
Agreement (to the extent of amounts payable to the Owner Trustee thereunder)
(collectively, and together with the Lease, the Trust Agreement and the
Certificates, the "Indenture Documents"), including all rights of the Owner
Trustee to execute any election or option or to give or receive any notice,
consent, waiver or approval under or in respect of any of the foregoing
documents and instruments;
(4) All the tolls, rents, issues, profits, products, revenues and
other income (including sales proceeds) of the property subjected or required
to be subjected to the Lien of this Indenture, and all of the estate, right,
title and interest of the Owner Trustee in and to the same and every part of
said property;
(5) The Collateral Account, the Liquid Collateral and all other
moneys and securities (including Permitted Investments) now or hereafter paid
or deposited or required to be paid or deposited to or with the Indenture
Trustee by or for the account of the Owner Trustee pursuant to any term of any
Operative Agreement, except the Tax Indemnity Agreements, and held or required
to be held by the Indenture Trustee hereunder;
(6) All requisition proceeds with respect to the Aircraft or any part
thereof (to the extent of the Owner Trustee's interest therein pursuant to the
terms of the Lease) and all insurance proceeds with respect to the Aircraft or
any part thereof from insurance required to be maintained by the Lessee under
Article 13 of the Lease, but excluding any insurance maintained by the Lessee
and not required under Article 13 of the Lease; and
(7) All proceeds of the foregoing.
Notwithstanding the foregoing provisions:
(a) (i) whether or not an Indenture Event of Default shall occur and
be continuing, the Owner Trustee and the Owner Participants shall at all times
retain the right, to the exclusion of the Indenture Trustee, (A) to Excepted
Payments and to commence an action at law to obtain such Excepted Payments and
(B) to adjust Basic Rent and the percentages relating to Stipulated Loss Value
and Termination Value and the EBO Price as provided in Section 3.04 of the
Lease and Section 15.01 of the Participation Agreement, (C) to exercise any
election or option to make any decision or determination, or to give or
receive any notice, consent, waiver or approval, or to take any other action
in respect of, but in each case only to the extent relating to, Excepted
Payments (except for, in respect of Basic Rent constituting an Excepted
Payment, the manner by which such amount is paid), (D) to retain the rights of
the "Lessor" with respect to solicitations of bids, and the election to retain
the Aircraft, pursuant to Article 10 of the Lease, (E) to retain the right of
"Lessor" to determine the Fair Market Rental or Fair Market Value pursuant to
Article 4 of the Lease, (F) to retain all rights with respect to insurance
maintained for its own account which Section 13.05 of the Lease specifically
confers on the "Lessor" and (G) to exercise, to the extent necessary to enable
it to exercise its rights under Section 8.03 hereof, the rights of the "Lessor"
under Section 17.04 of the Lease;
(ii) whether or not an Indenture Event of Default shall occur and be
continuing, the Owner Trustee and the Indenture Trustee shall each have the
rights separately but not to the exclusion of the other (agreement of both
required in the case of clause (E) below), (A) to receive from the Lessee all
notices, certificates, reports, filings, opinions of counsel, copies of all
documents and all information which the Lessee is permitted or required to
give or furnish to the "Lessor" pursuant to the Lease or to the Owner Trustee
pursuant to any other Operative Agreement, (B) to exercise inspection rights
pursuant to Section 14.01 of the Lease (provided that if an Indenture Event of
Default shall be continuing, no inspection right of the Owner Trustee shall
interfere with the efforts of the Indenture Trustee to exercise remedies under
the Lease or this Indenture), (C) to maintain separate insurance pursuant to
Section 13.05 of the Lease and to retain all rights with respect to such
insurance maintained for its own account, (D) to give any notice of default
under Section 16.01 of the Lease and to declare the Lease in default in
respect thereof, and (E) the right to consent to changes to the list of
countries on Schedule III to the Participation Agreement;
(iii) (A) so long as no Indenture Event of Default shall have
occurred and be continuing (but subject to the provisions of Section 8.01
hereof), the Owner Trustee shall retain the right, to the exclusion of the
Indenture Trustee, to approve as satisfactory any accountants, engineers,
appraisers or counsel to render services for or issue appraisals, reports,
certificates or opinions to the Owner Trustee pursuant to express provisions
of the Operative Agreements, and (B) so long as no Indenture Event of Default
not constituting an Event of Default shall have occurred and be continuing
(but subject to the provisions of Section 8.01 hereof), the Owner Trustee
shall retain the right, jointly with the Indenture Trustee (agreement of both
not being required), to further assurances and financial information from the
Lessee pursuant to Section 19.01 of the Lease (other than the right to receive
any funds to be delivered to the "Lessor" under the Lease (except funds
delivered with respect to Excepted Payments) and under the Purchase Agreement;
and
(iv) at all times the Owner Trustee shall have the right as Lessor,
but not to the exclusion of the Indenture Trustee, to seek specific
performance of the covenants of the Lessee under the Lease relating to the
protection, insurance, maintenance, possession and use of the Aircraft.
(b) The leasehold interest granted to the Lessee by the Lease shall
not be subject to the security interest granted by this Indenture, and nothing
in this Indenture shall affect the rights of the Lessee under the Lease so
long as no Event of Default has occurred and is continuing.
HABENDUM CLAUSE
TO HAVE AND TO HOLD the aforesaid property unto the Indenture Trustee,
its successors and assigns, in trust for the equal and ratable benefit and
security of the Holders from time to time of the Certificates, without any
priority of any one Certificate over any other and for the uses and purposes
and subject to the terms and conditions set forth in this Indenture.
It is expressly agreed that anything contained in this Indenture to
the contrary notwithstanding, the Owner Trustee shall remain liable under the
Indenture Documents to perform all of the obligations assumed by it under any
of those documents, all in accordance with and pursuant to the terms and
provisions of those documents, and the Indenture Trustee and the Holders of
the Certificates shall have no obligation or liability under the Indenture
Documents by reason of or arising out of the assignment under this Indenture,
nor shall the Indenture Trustee or the Holders of the Certificates be required
or obligated in any manner to perform or fulfill any obligations of the Owner
Trustee under or pursuant to the Indenture Documents or, except as expressly
provided in this Indenture, to make any payment, or to make any inquiry as to
the nature or sufficiency of any payment received by it, or present or file
any claim, or take any action to collect or enforce the payment of any amounts
which may have been assigned to it or to which it may be entitled at any time
or times.
Effective upon the occurrence and continuance of an Indenture Event of
Default, the Owner Trustee hereby constitutes the Indenture Trustee the true
and lawful attorney of the Owner Trustee, irrevocably, with full power (in the
name of the Owner Trustee or otherwise), subject to the terms and conditions
of this Indenture, to ask, require, demand, receive, compound and give
acquittance for any and all Basic Rent, Supplemental Rent payable to the Owner
Trustee, Stipulated Loss Value and Termination Value payments, insurance
proceeds and any and all moneys and claims for moneys due and to become due
under or arising out of the Lease (subject to Section 8.01 hereof) or the
other Indenture Documents (other than Excepted Payments), to endorse any
checks or other instruments or orders in connection with the same and to file
any claims, take any action or institute any proceeding which the Indenture
Trustee may deem to be necessary or advisable in the premises.
Under the Lease the Lessee is directed to make all payments of Rent
(other than Excepted Payments not constituting Basic Rent) payable to the
Owner Trustee and all other amounts (other than Excepted Payments not
constituting Basic Rent) which are required to be paid to or deposited with
the Owner Trustee pursuant to the Lease directly to the Indenture Trustee at
such address in the United States of America as the Indenture Trustee shall
specify for application as provided in this Indenture. The Owner Trustee
agrees that if, notwithstanding such provision, it shall have received any
such amounts, promptly on receipt of any such payment, it will transfer to the
Indenture Trustee any and all moneys from time to time received by the Owner
Trustee constituting part of the Trust Indenture Estate for distribution by
the Indenture Trustee pursuant to this Indenture, except that the Owner
Trustee shall accept for distribution pursuant to the Trust Agreement (i) any
amounts distributed to it by the Indenture Trustee under this Indenture, and
(ii) any Excepted Payments not constituting Basic Rent.
The Owner Trustee agrees that at any time and from time to time, upon
the written request of the Indenture Trustee, the Owner Trustee will promptly
and duly execute and deliver or cause to be duly executed and delivered any
and all such further instruments and documents as the Indenture Trustee may
reasonably deem desirable in obtaining the full benefits of the assignment
hereunder and of the rights and powers herein granted; provided, however, that
the Owner Trustee shall have no obligation to execute and deliver or cause to
be executed or delivered to the Indenture Trustee any such instrument or
document if such execution and delivery would result in the imposition of
additional liabilities on the Owner Trustee or any Owner Participant or would
result in a burden on such Owner Participant's business activities, unless the
Owner Trustee or such Owner Participant, as the case may be, is indemnified to
its reasonable satisfaction against any losses, liabilities and expenses
incurred in connection with such execution and delivery.
The Owner Trustee does hereby warrant and represent that it has not
assigned, pledged or otherwise disposed of, and hereby covenants that it will
not assign or pledge or otherwise dispose of, so long as the assignment
hereunder shall remain in effect, any of its right, title or interest hereby
assigned, to anyone other than the Indenture Trustee, and that it will not,
except in respect of Excepted Payments or otherwise as provided in or
permitted by this Indenture, accept any payment from the Lessee or any
sublessee, enter into an agreement amending or supplementing any of the
Operative Agreements, execute any waiver or modification of, or consent under
the terms of any of the Operative Agreements, settle or compromise any claim
(other than claims in respect of Excepted Payments) against the Lessee arising
under any of the Operative Agreements, or submit or consent to the submission
of any dispute, difference or other matter arising under or in respect of any
of the Operative Agreements, to arbitration thereunder.
Concurrently with the delivery of this Indenture, the Owner Trustee
has delivered to the Indenture Trustee executed counterparts of the Trust
Agreement and the chattel paper original counterpart of the Lease.
It is hereby further covenanted and agreed by and between the parties
as follows:
ARTICLE I
DEFINITIONS
Section 1.01. Definitions. Unless the context otherwise requires,
capitalized terms utilized herein shall have the meanings set forth in
Schedule II hereto for all purposes of this Indenture and shall be equally
applicable to both the singular and plural forms of the terms defined.
ARTICLE II
ISSUE, EXECUTION, FORM AND
REGISTRATION OF CERTIFICATES;
COLLATERAL ACCOUNT
Section 2.01. Authentication and Delivery of Certificates.
Forthwith upon the execution and delivery of this Indenture, and from time to
time thereafter, Certificates in an aggregate principal amount not in excess
of the amount specified in Section 2.04 hereof (except as otherwise provided
in Sections 2.06 and 2.07 hereof) shall be executed by the Owner Trustee and
delivered to the Indenture Trustee for authentication, and the Indenture
Trustee shall thereupon authenticate and deliver said Certificates to or upon
the oral or written order of the Owner Trustee, signed, if written, by an
authorized officer of the Owner Trustee, without any further action by the
Owner Trustee.
Section 2.02. Execution of Certificates. The Certificates shall be
signed on behalf of the Owner Trustee by an authorized officer of WTC. Such
signatures may be the manual or facsimile signatures of such officer and minor
errors or defects in any reproduction of any such signature shall not affect
the validity or enforceability of any Certificate which has been duly
authenticated and delivered by the Indenture Trustee.
In case any officer of WTC who shall have signed any of the
Certificates shall cease to be such officer before the Certificate so signed
shall be authenticated and delivered by the Indenture Trustee or disposed of
by WTC, such Certificate nevertheless may be authenticated and delivered or
disposed of as though the person who signed such Certificate had not ceased to
be such officer of WTC; and any Certificate may be signed on behalf of the
Owner Trustee by such person or persons as, at the actual date of the
execution of such Certificate, shall be the proper officers of WTC, although
at the date of the execution and delivery of this Indenture any such person
was not such an officer. Certificates bearing the facsimile signatures of
individuals who were authorized officers of WTC at the time such Certificates
were issued shall bind the Owner Trustee, notwithstanding that such
individuals or any of them have ceased to hold such offices prior to the
authentication and delivery of such Certificates or did not hold such offices
at the respective dates of such Certificates.
Section 2.03. Certificate of Authentication. Only such Certificates
as shall bear thereon a certificate of authentication substantially in the
form set forth in Exhibit B, executed by the Indenture Trustee by manual
signature of one of its authorized officers, shall be entitled to the security
and benefits of this Indenture or be valid or obligatory for any purpose.
Such certificate by the Indenture Trustee upon any Certificate executed by the
Owner Trustee shall be conclusive evidence that the Certificate so
authenticated has been duly authenticated and delivered hereunder and that the
Holder, as evidenced on the Register, is entitled to the security and benefits
of this Indenture.
Section 2.04. Form and Terms of Certificates; Payments of Principal,
Make-Whole Premium and Interest. The Certificates and the Indenture Trustee's
certificate of authentication shall be substantially in the form set forth in
Exhibit B hereto. Certificates may differ with respect to Maturity and as to
other terms. The Certificates shall be issuable as registered securities
without coupons and shall be numbered, lettered, or otherwise distinguished in
such manner or in accordance with such plans as the Owner Trustee executing
the same may determine with the approval of the Indenture Trustee.
The aggregate principal amount of Certificates that may be
authenticated and delivered under this Indenture is limited as provided in the
form of Certificate attached as Exhibit B hereto. The Certificates shall be
issued in registered form only and in denominations of $1,000 and any integral
multiple thereof, shall be dated the Certificate Closing Date, shall be issued
in three separate series consisting of Series A, Series B and Series C and
shall be issued in the Maturities and principal amounts, and shall bear
interest at the rates per annum, specified in the form of Certificate set forth
in Exhibit B.
Any of the Certificates may be issued with appropriate insertions,
omissions, substitutions and variations, and may have imprinted or otherwise
reproduced thereon such legend or legends, not inconsistent with the
provisions of this Indenture, as may be required to comply with any law or
with any rules or regulations pursuant thereto, or with the rules of any
securities market in which the Certificates are admitted to trading, or to
conform to general usage.
Each Certificate shall bear interest from the date of original
issuance thereof or from the most recent date to which interest has been paid
and duly provided for, as the case may be, which shall be payable on the dates
specified on the face of the form of Certificate set forth in Exhibit B hereto
until the principal thereof is paid. Interest shall be calculated on the
basis of a 360-day year of twelve 30-day months.
Notwithstanding the preceding paragraph, each Certificate shall bear
interest at the Past Due Rate on any principal, interest and any other amount
payable hereunder or under such Certificate, which shall not be paid in full
when due (whether at stated maturity, by acceleration, by mandatory prepayment
or otherwise), for the period from and including the due date thereof to but
excluding the date the same is paid in full, payable from time to time on
demand of the Indenture Trustee.
The principal of, and Make-Whole Premium, if any, and interest on, the
Certificates shall be payable at the Corporate Trust Department of the
Indenture Trustee or at any office or agency maintained for such purpose
pursuant to Section 3.02 hereof; provided, however, that interest may be
payable at the option of the Indenture Trustee or its Paying Agent, as defined
in Section 3.04, by mailing checks for such interest payable to or upon the
written order of the Holders entitled thereto as they shall appear on the
Register. If any amount payable under the Certificates, or under this
Indenture, falls due on a day that is not a Business Day, then such sum shall
be payable on the next succeeding Business Day, without (provided that payment
is made on such next succeeding Business Day) additional interest thereon for
the period of such extension.
The Holder at the close of business on any Record Date with respect
to any Payment Date shall be entitled to receive the interest if any payable
on such Payment Date notwithstanding any transfer or exchange of such
Certificate subsequent to the Record Date and prior to such Payment Date,
except if and to the extent the Owner Trustee shall default in the payment of
the interest due on such Payment Date, in which case such defaulted interest
shall be paid to the Holder at the close of business on a subsequent Record
Date (which shall be not less than five (5) or more than fifteen (15) Business
Days prior to the date of payment of such defaulted interest) established by
notice given by mail by or on behalf of the Owner Trustee to the Holders not
less than fifteen (15) days preceding such subsequent Record Date.
The Owner Trustee agrees to pay to the Indenture Trustee for
distribution in accordance with Section 5.04 hereof (a) any and all indemnity
amounts received by the Owner Trustee which are payable by the Lessee to (i)
the Indenture Trustee in its individual capacity, (ii) the Subordination Agent
or (iii) each Liquidity Provider, in each case pursuant to Article 8 or 9 of
the Participation Agreement (it being acknowledged that the Lessee has been
instructed to pay such amounts to the Person or Persons entitled thereto) and
(b) the Owner Trustee's pro rata share of all amounts owed to each Liquidity
Provider by the Subordination Agent under each Liquidity Facility other than
amounts due as (i) repayments of the principal of advances thereunder, and (ii)
interest on Interest Drawings and Final Drawings except to the extent included
in Net Interest and Related Charges. As used in this Section, the Owner
Trustee's pro rata share means as of any time:
(A) with respect to all amounts other than Net Interest and
Related Charges, a fraction the numerator of which is the aggregate
principal balance then outstanding of the Certificates issued under
this Indenture (other than the Series C Certificates) and the
denominator of which is the aggregate principal balance of all
Certificates issued under this Indenture and the Related Indentures
(other than the Series C Certificates), plus
(B) with respect to all Net Interest and Related Charges (x)
if there exists a Payment Default under any Certificate issued under
this Indenture a fraction, the numerator of which is the aggregate
principal balance then outstanding of Certificates issued under this
Indenture (other than the Series C Certificates) and the denominator
of which is the aggregate principal balance then outstanding of all
Certificates issued under this Indenture and the Related Indentures
(other than the Series C Certificates) under which there exists a
Payment Default or (y) at all other times, zero.
As used in this Section, "Net Interest and Related Charges" means the sum of
(i) the amount, if any, by which interest payable to each Liquidity Provider
on any Interest Drawing and/or Final Drawing exceeds the amount which would be
payable if such drawings bore interest at the weighted average Past Due Rate
applicable to amounts in default on all Certificates plus (ii) any amounts
payable under Section 3.01, Section 3.02, Section 3.03, Section 3.09 or
Section 7.07 of each Liquidity Facility (or similar provisions of any
replacement Liquidity Facility) which result from any Interest Drawing or
Final Drawing. As used in this Section, a Payment Default when used in
connection with a Certificate issued hereunder or a Certificate issued under
any Related Indenture means a default in the payment of principal thereof or
interest thereon (which default has not been cured), other than solely because
of acceleration. As used in this Section, "Related Indentures" means,
collectively, the Trust Indenture and Security Agreement for each of Federal
Express Corporation Trust Nos. N670FE, N671FE, N672FE, N673FE, N674FE, N583FE,
N584FE, each dated as of May 1, 1997, between State Street Bank and Trust
Company of Connecticut, National Association, as owner trustee and the
Indenture Trustee, and the Trust Indenture and Security Agreement for Federal
Express Corporation Trust No. N587FE, dated as of December 1, 1996, as amended
and restated as of May 1, 1997, between the Owner Trustee and the Indenture
Trustee.
Section 2.05. Payments from Trust Indenture Estate Only. All
payments to be made by the Owner Trustee under this Indenture shall be made
only from the income and the proceeds from the Lessor's Estate to the extent
included in the Trust Indenture Estate and from any other amounts of the type
described in Section 5.01 hereof to the extent actually received by the
Indenture Trustee and only to the extent that the Owner Trustee shall have
sufficient income or proceeds from the Lessor's Estate to the extent included
in the Trust Indenture Estate (and such other amounts) to enable the Indenture
Trustee to make distributions of the amounts due in respect of the
Certificates in accordance with the terms hereof and thereof. Each Holder by
its acceptance of a Certificate agrees that it will look solely to the income
and proceeds from the Trust Indenture Estate (and such other amounts of the
type described in Section 5.01 hereof to the extent actually received by the
Indenture Trustee) to the extent available for distribution to it as provided
herein and that neither the Owner Participants, the Owner Trustee, WTC nor the
Indenture Trustee is personally liable to such Holder for any amounts payable
under this Indenture or such Certificate or for any amounts payable or
liability under any Certificate or this Indenture, except as expressly
provided herein in the case of WTC, the Owner Trustee or the Indenture
Trustee.
WTC is not personally liable to any Holder, the Lessee, any Owner
Participant or the Indenture Trustee for any amounts payable under this
Indenture or for any liability under this Indenture or the Certificates,
except as a result of WTC's gross negligence or willful misconduct, or as
otherwise expressly provided herein or in the Participation Agreement.
If (1) all or any part of the Lessor's Estate becomes the property of
a debtor subject to the reorganization provisions of the Bankruptcy Code, (2)
pursuant to such reorganization provisions each Owner Participant is required,
by reason of such Owner Participant being held to have recourse liability to
the debtor or the trustee of the debtor directly or indirectly, to make
payment on account of any amount payable as principal of or interest,
Make-Whole Premium or other amounts payable on the Certificates, and (3) the
Indenture Trustee actually receives any Recourse Amount which reflects any
payment by the Owner Participants on account of (2) above, then the Indenture
Trustee shall promptly refund to the Owner Participants such Recourse Amount.
Nothing contained in this paragraph shall prevent the Indenture Trustee from
enforcing any personal recourse obligation (and retaining the proceeds
thereof) of any Owner Participant under the Participation Agreement, or from
retaining any amount paid by any Owner Participant under Sections 5.01, 8.02
and 8.03 hereof.
Section 2.06. Registration, Transfer and Exchange. The Indenture
Trustee will keep, on behalf of the Owner Trustee, at each office or agency to
be maintained for the purpose as provided in Section 3.02 hereof a Register or
Registers on which, subject to such reasonable regulations as it may
prescribe, it will register, and will register the transfer of, Certificates
as provided in this Article. Such Register shall be in written form in the
English language or in any other form capable of being converted into such
form within a reasonable time.
Upon due presentation for registration of transfer of any Certificate
at any such office or agency, the Owner Trustee shall execute and the
Indenture Trustee shall authenticate and deliver in the name of the transferee
or transferees a new Certificate or Certificates of the same Series and
Maturity and interest rate and in authorized denominations for an equal
aggregate principal amount.
Any Certificate or Certificates may be exchanged for a Certificate or
Certificates of the same Series and Maturity and interest rate but in other
authorized denominations, in an equal aggregate principal amount.
Certificates to be exchanged shall be surrendered at any office or agency to
be maintained by the Indenture Trustee for the purpose as provided in Section
3.02 hereof, and the Owner Trustee shall execute and the Indenture Trustee
shall authenticate and deliver in exchange therefor the Certificate or
Certificates which the Holder making the exchange shall be entitled to
receive, bearing numbers not contemporaneously or previously outstanding.
All Certificates presented for registration of transfer, exchange,
prepayment or payment shall (if so required by the Owner Trustee or the
Indenture Trustee) be duly endorsed by, or be accompanied by a written
instrument or instruments of transfer in form satisfactory to the Owner
Trustee and the Indenture Trustee duly executed by the Holder or its attorney
duly authorized in writing and (except in the case of transfers pursuant to
Section 15.01 of the Participation Agreement) the Indenture Trustee may
require evidence satisfactory to it as to the compliance of any such transfer
with the Securities Act.
The Indenture Trustee may require payment from the Holder of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any exchange or registration of transfer of Certificates. No
service charge shall be levied for any such transaction.
The Indenture Trustee shall not be required to exchange or register a
transfer of any Certificates (a) for a period of fifteen (15) days immediately
preceding the first mailing of notice of prepayment of such Certificates or
(b) with respect to which notice of prepayment has been given pursuant to
Section 6.03 hereof and such notice has not been revoked.
All Certificates issued upon any transfer or exchange of Certificates
shall be valid obligations of the Owner Trustee, evidencing the same debt, and
entitled to the same security and benefits under this Indenture, as the
Certificates surrendered upon such transfer or exchange.
Section 2.07. Mutilated, Defaced, Destroyed, Lost and Stolen
Certificates. In case any temporary or definitive Certificate shall become
mutilated, defaced or be apparently destroyed, lost or stolen, the Owner
Trustee in its discretion may execute, and upon the oral or written request of
any officer of WTC, the Indenture Trustee shall authenticate and deliver, a
new Certificate of like Maturity, bearing a number not contemporaneously or
previously outstanding, in exchange and substitution for the mutilated or
defaced Certificate, or in lieu of and substitution for the Certificate so
apparently destroyed, lost or stolen. In case of any Certificate so apparently
destroyed, lost or stolen, the applicant for a substitute Certificate shall
furnish to the Owner Trustee and to the Indenture Trustee such security or
indemnity as may be required by them to indemnify and defend and to save each
of them harmless and evidence to their satisfaction of the apparent
destruction, loss or theft of such Certificate and of the ownership thereof.
Upon the issuance of any substitute Certificate, the Owner Trustee or
the Indenture Trustee may require payment from the Holder of a sum sufficient
to cover any tax or other governmental charge that may be imposed in relation
thereto and any other reasonable expenses connected therewith. In case any
Certificate which has matured or is about to mature, or has been called for
prepayment in full, shall become mutilated or defaced or be apparently
destroyed, lost or stolen, the Owner Trustee may, instead of issuing a
substitute Certificate, pay or authorize the payment of the same (without
surrender thereof except in the case of a mutilated or defaced Certificate),
if the applicant of any Certificate so apparently destroyed, lost or stolen,
for such payment shall furnish to the Owner Trustee and to the Indenture
Trustee such security or indemnity as any of them may require to save each of
them harmless and the applicant shall also furnish to the Owner Trustee and
the Indenture Trustee evidence to their satisfaction of the apparent
destruction, loss or theft of such Certificate and of the ownership thereof.
Every substitute Certificate issued pursuant to the provisions of
this Section by virtue of the fact that any Certificate is apparently
destroyed, lost or stolen shall constitute an original additional contractual
obligation of the Owner Trustee, whether or not the apparently destroyed, lost
or stolen Certificate shall be enforceable at any time by anyone and shall be
entitled to all the security and benefits of (but shall be subject to all the
limitations of rights set forth in) this Indenture equally and proportionately
with any and all other Certificates duly authenticated and delivered
hereunder. All Certificates shall be held and owned upon the express
condition that, to the extent permitted by law, the foregoing provisions are
exclusive with respect to the replacement or payment of mutilated, defaced, or
apparently destroyed, lost or stolen Certificates and shall preclude any and
all other rights or remedies notwithstanding any law or statute existing or
hereafter enacted to the contrary with respect to the replacement or payment
of negotiable instruments or other securities without their surrender.
Section 2.08. Cancellation of Certificates; Destruction Thereof. All
Certificates surrendered for payment, prepayment, registration of transfer or
exchange, if surrendered to the Owner Trustee or any agent of the Owner
Trustee or the Indenture Trustee, shall be delivered to the Indenture Trustee
for cancellation or, if surrendered to the Indenture Trustee, shall be
cancelled by it; and no Certificates shall be issued in lieu thereof except as
expressly permitted by any of the provisions of this Indenture. The Indenture
Trustee shall destroy cancelled Certificates held by it and deliver a
certificate of destruction to the Owner Trustee. If the Owner Trustee shall
acquire any of the Certificates, such acquisition shall not operate as a
prepayment or satisfaction of the indebtedness represented by such
Certificates unless and until the same are delivered to the Indenture Trustee
for cancellation.
Section 2.09. Temporary Certificates. Pending the preparation of
definitive Certificates, the Owner Trustee may execute and, upon the oral or
written request of an officer of WTC, the Indenture Trustee shall authenticate
and deliver temporary Certificates (printed, lithographed, typewritten or
otherwise reproduced, in each case in form satisfactory to the Indenture
Trustee). Temporary Certificates shall be issuable as registered Certificates
without coupons, of any authorized denomination, and substantially in the form
of the definitive Certificates but with such omissions, insertions and
variations as may be appropriate for temporary Certificates, all as may be
determined by the Owner Trustee with the concurrence of the Indenture Trustee.
Temporary Certificates may contain such reference to any provisions of this
Indenture as may be appropriate. Every temporary Certificate shall be
executed by the Owner Trustee and, upon the oral or written request of an
authorized officer of the Owner Trustee, be authenticated by the Indenture
Trustee upon the same conditions and in substantially the same manner, and
with like effect, as the definitive Certificates. Without unreasonable delay
the Owner Trustee shall execute and shall furnish definitive Certificates and
thereupon temporary Certificates shall be surrendered in exchange therefor
without charge at any office or agency to be maintained by the Indenture
Trustee for the purpose pursuant to Section 3.02 hereof, and, upon the oral
or written request of an authorized officer of the Owner Trustee, the
Indenture Trustee shall authenticate and deliver in exchange for such
temporary Certificates an equal aggregate principal amount of definitive
Certificates of the same Series and Maturities and interest rates and in
authorized denominations. Until so exchanged, temporary Certificates shall be
entitled to the same security and benefits under this Indenture as definitive
Certificates.
Section 2.10. Termination of Interest in Trust Indenture Estate. A
Holder shall not, as such, have any further interest in, or other right with
respect to, the Trust Indenture Estate when and if the principal amount of and
Make-Whole Premium, if any, and interest on and other amounts due under all
Certificates held by such Holder and all other sums payable to such Holder
hereunder and under the other Operative Agreements shall have been paid in
full.
Section 2.11. Certificates in Respect of Replacement Aircraft. Upon
the execution and delivery of an Indenture and Security Agreement Supplement
covering a Replacement Airframe and/or Replacement Engine, as provided in
Section 9.09 hereof, each Certificate shall be deemed to have been issued in
connection with such Replacement Airframe and/or Replacement Engine and each
Certificate issued thereafter upon a transfer or exchange of, or as a
replacement for, a Certificate, shall be designated as having been issued in
connection with such Replacement Airframe and/or Replacement Engine, but
without any other change therein except as provided for in this Article II.
Section 2.12. Assumption of Obligations Under Certificates and Other
Operative Agreements. If, in accordance with and subject to the satisfaction
of the conditions set forth in Section 7.11 of the Participation Agreement,
the Lessee shall assume all of the obligations of the Owner Trustee hereunder,
under the Certificates and all other Operative Agreements, the Owner
Participants and the Owner Trustee shall be released and discharged from any
further obligations hereunder and under the
Certificates and all other Operative Agreements (except any obligations that
have accrued prior to such assumption).
Section 2.13. Establishment of Collateral Account. (a) The
Indenture Trustee shall, pursuant to the Collateral Account Control Agreement,
establish, or cause to be established, with State Street Bank and Trust
Company, who shall represent and warrant that it is a financial intermediary
(as defined in Section 8-313(4) of the Connecticut Uniform Commercial Code),
in its name as secured party hereunder an Eligible Deposit Account entitled
"First Security Bank, National Association, as secured party under the Trust
Indenture and Security Agreement (Federal Express Corporation Trust No.
N581FE) dated as of May 1, 1997, with the Owner Trustee referred to therein".
(b) If at any time the Collateral Account ceases to be an Eligible
Deposit Account, the Indenture Trustee shall within two (2) Business Days,
establish a new Collateral Account meeting the conditions specified in the
definition of Eligible Deposit Account, and shall transfer any cash or any
investments in the Collateral Account to such new Collateral Account.
(c) The Indenture Trustee shall have exclusive dominion and control
of the Collateral Account and all funds therein, and shall make withdrawals
from the Collateral Account only in accordance with this Indenture.
(d) The Collateral Account Control Agreement shall require State
Street Bank and Trust Company to send confirmation to the Indenture Trustee
and the Lessee that it has credited the Specified Investments to the
Collateral Account and to make appropriate entries on its books identifying
the Specified Investments as pledged to the Indenture Trustee.
Section 2.14. Investment of Funds on Deposit in the Collateral
Account. (a) Funds deposited in the Collateral Account shall be invested and
reinvested by the Indenture Trustee, subject to Section 17.02 of the
Participation Agreement, at the risk of the Owner Trustee, in Specified
Investments selected by the Lessee and approved by the Indenture Trustee for
the account of the Owner Trustee in accordance with Section 2.14(b) below;
provided, however, that if Specified Investments meeting the requirements of
Section 2.14(b) are not available on any day on which funds are to be invested
as contemplated by the preceding provisions of this Section 2.14(a), the
Indenture Trustee may leave such funds in the Collateral Account uninvested
until the earliest of (i) the date on which an appropriate Specified
Investment becomes available, (ii) the Delivery Date and (iii) the Cut-Off
Date. The Indenture Trustee shall maintain possession of the negotiable
instruments or securities, if any, evidencing such Specified Investments and,
in the case of any Specified Investments in book-entry form, such Specified
Investments shall be credited to an account of the Indenture Trustee or a
financial intermediary with the applicable Federal Reserve Bank; provided,
however, if the account is credited to the financial intermediary, the
financial intermediary shall make written confirmation thereof to the
Indenture Trustee and make an appropriate entry on its books identifying the
Specified Investments as pledged to the Indenture Trustee. All proceeds of
and any income, interest and other payments and distributions on or with
respect to any Specified Investments shall be deposited in or credited to the
Collateral Account and thereafter shall be held, invested and applied by the
Indenture Trustee in accordance with this Indenture. The Indenture Trustee
shall promptly notify the Owner Trustee and the Lessee of any Losses.
(b) On the Certificate Closing Date, the Indenture Trustee shall
invest the amount deposited in the Collateral Account pursuant to Section
2.01(c) of the Participation Agreement in Specified Investments selected by
the Lessee and approved by the Indenture Trustee for the account of the Owner
Trustee which mature on or prior to June 6, 1997. If the Delivery Date is
postponed pursuant to Section 3.02(c) or Section 3.05 of the Participation
Agreement, the proceeds of the Specified Investments referred to in the
preceding sentence may be invested in Specified Investments which mature
within 14 days after the rescheduled Delivery Date. If no Delivery Date
occurs, then any Specified Investment shall mature no later than the 15th day
after the Cut-Off Date.
(c) If for any reason the Indenture Trustee shall be required to
make any distributions of the Liquid Collateral prior to the maturity date of
any Specified Investment, the Indenture Trustee shall cause the same to be
sold in accordance with standard commercial practices, and the Lessee, for the
account of the Owner Trustee, shall forthwith compensate the Indenture Trustee
for any Losses as provided in Section 17.02(a) of the Participation Agreement.
(d) Pursuant to Section 17.02(b) of the Participation Agreement,
interest payable on the Certificates during the period in which funds are on
deposit in the Collateral Account shall be paid by the Lessee.
Section 2.15. Release of Debt Portion and Lien on the Collateral
Account and the Liquid Collateral on Delivery Date. (a) Subject to the
satisfaction or waiver of the conditions precedent to the Indenture Trustee's
obligations set forth in Section 4.02 of the Participation Agreement, on the
Delivery Date subject to the proviso to Section 3.02(a) of the Participation
Agreement, the Indenture Trustee shall release from the Collateral Account an
amount of Liquid Collateral equal to the lesser of (A) the Debt Portion and
(B) the amount actually in the Collateral Account on the Delivery Date.
Subject to the proviso to Section 3.02(a) of the Participation Agreement, such
amount so released, together with the amount of any Losses received from the
Lessee pursuant to Section 17.02(a) of the Participation Agreement, shall be
used to finance a portion of the Purchase Price as contemplated by Section
3.02(a) of the Participation Agreement. Any amount remaining in the
Collateral Account after such release (net of any uncompensated Losses) shall
be remitted by the Indenture Trustee on behalf of the Owner Trustee to the
Lessee pursuant to Section 3.02(a)(B) of the Participation Agreement.
(b) The Lien of this Indenture on the Collateral Account and the
Liquid Collateral shall terminate on the Delivery Date following the transfer
of amounts described in Section 3.02(a) of the Participation Agreement.
Section 2.16. Cut-Off Date. In the case of a prepayment under
Section 6.02(a)(vi) hereof, the Indenture Trustee shall release from the
Collateral Account all amounts held in the Collateral Account on such date.
Such amount so released, together with the amount of any Losses received from
the Lessee pursuant to Sections 17.02(a) and 17.02(c) of the Participation
Agreement, shall be applied to pay amounts due under Section 6.02(b)(1) hereof
on the 15th day following the Cut-Off Date, and any amount (net of any
uncompensated Losses) remaining after such release and application shall be
remitted by the Indenture Trustee, on behalf of the Owner Trustee, to the
Lessee.
Section 2.17. Subordination. (a) The Owner Trustee and, by
acceptance of its Certificates of any Series, each Holder of such Series,
hereby agree that no payment or distribution shall be made on or in respect of
the Secured Obligations owed to such Certificate Holder of such Series,
including any payment or distribution of cash, property or securities after
the commencement of a proceeding of the type referred to in clause (v), (vi)
or (vii) of Section 7.01 hereof, except as expressly provided in Article V
hereof.
(b) By the acceptance of its Certificates of any Series
(other than Series A), each Holder of such Series agrees that in the event
that such Holder, in its capacity as a Holder, shall receive any payment or
distribution on any Secured Obligations in respect of such Series which it is
not entitled to received under this Section 2.17 or Article V hereof, it will
hold any amount so received in trust for the Senior Holder (as defined in
Section 2.17(c) hereof) and will forthwith turn over such payment to the
Indenture Trustee in the form received to be applied as provided in Article V
hereof.
(c) As used in this Section 2.17, the term "Senior Holder"
shall mean, (i) the Holders of Series A Certificates until the Secured
Obligations in respect of Series A Certificates have been paid in full, (ii)
after the Secured Obligations in respect of Series A Certificates have been
paid in full, the Holders of Series B Certificates until the Secured
Obligations in respect of Series B Certificates have been paid in full and
(iii) after the Secured Obligations in respect of Series B Certificates have
been paid in full, the Holders of Series C Certificates until the Secured
Obligations in respect of Series C Certificates have been paid in full.
ARTICLE III
COVENANTS
Section 3.01. Payment of Principal, Make-Whole Premium and Interest.
The Owner Trustee covenants and agrees that it will, subject to Section 2.05
hereof, duly and punctually pay or cause to be paid the principal of, and
interest and Make-Whole Premium, if any, and all other amounts due on, each of
the Certificates and under this Indenture at the place or places, at the
respective times and in the manner provided in this Indenture and in the
Certificates.
Principal and interest and other amounts due hereunder or under the
Certificates shall be payable in dollars on the due date thereof, to the
Indenture Trustee at the Corporate Trust Department (or such other account at
such other financial institution as the Indenture Trustee may designate for
the purpose). If any amount payable under the Certificates or under this
Indenture falls due on a day which is not a Business Day, then such sum shall
be payable on the next succeeding Business Day, without (provided that payment
is made on such next succeeding Business Day) additional interest thereon for
the period of such extension.
Section 3.02. Offices for Payments, etc. So long as any of the
Certificates remain outstanding, the Indenture Trustee will maintain the
following: (a) an office or agency where the Certificates may be presented
for payment and (b) a facility or agency in New York, New York where the
Certificates may be presented for registration of transfer and for exchange
and for prepayment as provided in this Indenture (the "Registrar"). The
Registrar shall keep a register (the "Register") with respect to the
Certificates and their transfer and exchange. The Indenture Trustee may
appoint one or more co-registrars ("Co-Registrars") for the Certificates and
may terminate any such appointment at any time upon written notice. The term
"Registrar" includes any Co-Registrar.
The Indenture Trustee shall initially act as Registrar.
Section 3.03. Appointment to Fill a Vacancy in Office of Indenture
Trustee. The Owner Trustee, whenever necessary to avoid or fill a vacancy in
the office of Indenture Trustee, will, with the consent of the Lessee,
appoint, in the manner provided in Section 12.02 hereof, an Indenture Trustee,
so that there shall at all times be an Indenture Trustee hereunder.
Section 3.04. Paying Agents. Whenever the Indenture Trustee in its
sole discretion shall appoint a paying agent (the "Paying Agent"), it will
cause the Paying Agent to execute and deliver an instrument in which the
Paying Agent shall agree with the Indenture Trustee, subject to the provisions
of this Section:
(a) that it will hold all sums received by it as such agent for the
payment of the principal of, and interest and Make-Whole Premium, if any,
on the Certificates (whether such sums have been paid to it by the
Indenture Trustee or the Owner Trustee) in trust for the benefit of the
Holders or of the Indenture Trustee, and
(b) that it will give the Indenture Trustee notice of any failure by
the Owner Trustee to make any payment of the principal of or interest or
Make-Whole Premium, if any, on the Certificates when the same shall be due
and payable.
Anything in this Section to the contrary notwithstanding, the
agreements to hold sums in trust as provided in this Section are subject to
the provisions of Sections 14.03 and 14.04 hereof.
Section 3.05. Covenants of WTC and the Owner Trustee.
(a) WTC hereby covenants and agrees to perform its covenants set
forth in Sections 7.04(b) and 7.04(c) of the Participation Agreement.
(b) The Owner Trustee hereby covenants and agrees as follows:
(i) in the event a Responsible Officer of the Owner Trustee shall have
actual knowledge of an Indenture Event of Default, an Indenture Default or
an Event of Loss, the Owner Trustee will give prompt written notice of such
Indenture Event of Default, Indenture Default or Event of Loss to the
Indenture Trustee, the Lessee and the Owner Participants;
(ii) the Owner Trustee will furnish to the Indenture Trustee,
promptly upon receipt thereof, duplicates or copies of all reports,
notices, requests, demands, certificates, financial statements and other
instruments furnished to the Owner Trustee under the Lease, including,
without limitation, a copy of each report or notice received pursuant to
Article 11 of the Lease, to the extent that the same shall not have been
furnished to the Indenture Trustee;
(iii) the Owner Trustee will not enter into any business or other
activity other than the business of owning the Aircraft, the leasing
thereof to the Lessee and the carrying out of the transactions contemplated
hereby and by the Lease, the Participation Agreement, the Trust Agreement
and the other Indenture Documents; and
(iv) except as contemplated by the Operative Agreements, the Owner
Trustee will not contract for, create, incur or assume any debt, and will
not guarantee (directly or indirectly or by an instrument having the effect
of assuring another's payment or performance on any obligation or
capability of so doing, or otherwise), endorse or otherwise take action to
become contingently liable, directly or indirectly, in connection with the
debt of any other Person.
Section 3.06. [Reserved].
Section 3.07. Disposal of Trust Indenture Estate. At any time and
from time to time any part of the Trust Indenture Estate may be sold or
disposed of in accordance with the provisions of this Indenture and the Lease.
The Indenture Trustee shall, from time to time, release any part of the Trust
Indenture Estate so sold or disposed of or as to which an Event of Loss has
occurred or as to which the Lease has been terminated from the Lien of this
Indenture. In addition, to the extent that such property constitutes an
Airframe or Engine, the further requirements of Section 9.08 hereof shall be
complied with.
Section 3.08. No Representations or Warranties as to Aircraft or
Documents. NEITHER THE INDENTURE TRUSTEE NOR THE OWNER TRUSTEE NOR WTC NOR
THE OWNER PARTICIPANTS MAKES OR SHALL BE DEEMED TO HAVE MADE ANY
REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, AS TO THE TITLE,
AIRWORTHINESS, WORKMANSHIP, VALUE, CONDITION, DESIGN, MERCHANTABILITY OR
FITNESS FOR ANY PARTICULAR USE OR PURPOSE OF THE AIRCRAFT OR ANY ENGINE, OR
ANY OTHER REPRESENTATION OR WARRANTY WITH RESPECT TO THE AIRCRAFT OR ANY
ENGINE WHATSOEVER, except that WTC warrants that on the Delivery Date (a) the
Owner Trustee shall have received whatever title was conveyed to it by the
Lessee, and (b) the Aircraft shall be free and clear of Lessor's Liens
attributable to WTC. Neither WTC, the Indenture Trustee nor the Owner
Participants makes or shall be deemed to have made any representation or
warranty as to the validity, legality or enforceability of this Indenture, the
Trust Agreement, the Certificates or any Indenture Document or as to the
correctness of any statement contained in any thereof, except for the
representations and warranties of WTC, the Indenture Trustee and the Owner
Participants made under this Indenture or in the Participation Agreement.
Section 3.09. Further Assurances; Financing Statements. At any time
and from time to time, upon the request of the Indenture Trustee or the
Lessee, the Owner Trustee shall promptly and duly execute and deliver any and
all such further instruments and documents as may be specified in such request
and as are necessary or advisable to perfect, preserve or protect the Liens
and assignments created or intended to be created hereby, or to obtain for the
Indenture Trustee the full benefit of the specific rights and powers granted
herein, including, without limitation, the execution and delivery of Uniform
Commercial Code financing statements and continuation statements with respect
thereto, or similar instruments relating to the perfection of the Liens or
assignments created or intended to be created hereby.
ARTICLE IV
HOLDER LISTS
Section 4.01. Holder Lists; Ownership of Certificates. (a) The
Indenture Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
the Holders. If the Indenture Trustee is not the Registrar, the Registrar
shall furnish to the Indenture Trustee semi-annually not more than fifteen
(15) days after each Record Date, as of such Record Date, or at such other
times as the Indenture Trustee may request in writing, a list, in such form
and as of such date as the Indenture Trustee may reasonably require,
containing all the information in the possession or control of the Registrar
as to the names and addresses of the Holders and the amounts and Maturities of
the Certificates held by such Holders.
(b) Ownership of the Certificates shall be proved by the Register
kept by the Registrar.
ARTICLE V
RECEIPT, DISTRIBUTION AND APPLICATION OF
INCOME FROM THE TRUST INDENTURE ESTATE
Section 5.01. Basic Rent Distribution. Except as otherwise provided
in Section 5.03 hereof, each installment of Basic Rent, any payment of
interest on overdue installments of Basic Rent, any payment received by the
Indenture Trustee pursuant to Section 8.03(a) hereof and any payment received
by the Indenture Trustee pursuant to Section 17.02(b) or 17.02(c) of the
Participation Agreement shall be promptly distributed in the following order
of priority:
first, (i) so much of such installment or payment as shall be
required to pay in full the aggregate amount of the payment or
payments of Principal Amount and interest and other amounts (as
well as any interest on any overdue Principal Amount and, to the
extent permitted by applicable law, on any overdue interest and
any other overdue amounts) then due under all Series A
Certificates shall be distributed to the Holders of Series A
Certificates ratably, without priority of one over the other, in
the proportion that the amount of such payment or payments then
due under each Series A Certificate bears to the aggregate amount
of the payments then due under all Series A Certificates;
(ii) after giving effect to paragraph (i) above, so much of
such installment or payment as shall be required to pay in full
the aggregate amount of the payment or payments of Principal
Amount and interest and other amounts (as well as any interest on
any overdue Principal Amount and, to the extent permitted by
applicable law, on any overdue interest and any other overdue
amounts) then due under all Series B Certificates shall be
distributed to the Holders of Series B Certificates ratably,
without priority of one over the other, in the proportion that the
amount of such payment or payments then due under each Series B
Certificate bears to the aggregate amount of the payments then due
under all Series B Certificates; and
(iii) after giving effect to paragraph (ii) above, so much of
such installment or payment as shall be required to pay in full
the aggregate amount of the payment or payments of Principal
Amount and interest and other amounts (as well as any interest on
any overdue Principal Amount and, to the extent permitted by
applicable law, on any overdue interest and any other overdue
amounts) then due under all Series C Certificates shall be
distributed to the Holders of Series C Certificates ratably,
without priority of one over the other, in the proportion that the
amount of such payment or payments then due under each Series C
Certificate bears to the aggregate amount of the payments then due
under all Series C Certificates; and
second, the balance if any of such installment or payment remaining
thereafter shall be distributed to the Owner Trustee, or as the
Owner Trustee may request, for distribution pursuant to the Trust
Agreement.
Section 5.02. Event of Loss and Replacement; Prepayment. (a)
Except as otherwise provided in Section 5.03 hereof, any payment received by
the Indenture Trustee as the result of an Event of Loss with respect to the
Aircraft (including pursuant to Section 11.03(e) of the Lease, but, in the
case of said Section 11.03(e), subject to the time limits specified therein)
or as the result of, or in connection with any event under the Lease giving
rise to, a prepayment pursuant to Section 6.02 hereof, shall be promptly
distributed by the Indenture Trustee in the following order of priority:
first, to reimburse the Indenture Trustee for any costs or expenses
reasonably incurred in connection with such prepayment,
second, (i) to pay the amounts specified in paragraph (i) of clause
"second" of Section 5.03 hereof then due and payable in respect
of the Series A Certificates;
(ii) after giving effect to paragraph (i) above, to pay the
amounts specified in paragraph (ii) of clause "second" of Section
5.03 hereof then due and payable in respect of the Series B
Certificates; and
(iii) after giving effect to paragraph (ii) above, to pay the
amounts specified in paragraph (iii) of clause "second" of
Section 5.03 hereof then due and payable in respect of the Series
C Certificates;
provided that payments pursuant to this clause "second" shall be
made without the payment of Make-Whole Premium except in the
particular circumstances provided in Section 6.02(b) hereof; and
third, as provided in clause "third" of Section 5.03 hereof;
provided that if a Replacement Airframe shall be substituted for an Airframe
subject to an Event of Loss as provided in Section 11.03 of the Lease and
Section 9.08 hereof, any proceeds which result from such Event of Loss and are
paid to the Indenture Trustee shall be held by the Indenture Trustee as part
of the Trust Indenture Estate and, unless otherwise applied pursuant to
Section 5.01 or 5.03 hereof, such proceeds shall be released to the Lessee
upon the release of such damaged Airframe and the replacement thereof as
herein provided.
(b) Any amounts received directly or indirectly from any governmental
authority, insurer or other party pursuant to any provision of Article 11 or
13 of the Lease as the result of loss or damage not constituting an Event of
Loss with respect to the Aircraft, or as a result of such loss or damage
constituting an Event of Loss (x) if and to the extent that such amounts would
at the time be required to be paid to the Lessee pursuant to said Article 11
or 13 but for the fact that an Event of Default shall have occurred and be
continuing or (y) are pledged to the Lessor as security in connection with an
Event of Loss in accordance with Section 11.03(e) of the Lease, shall be held
by the Indenture Trustee as security for the obligations of the Lessee under
the Lease and the Participation Agreement and shall be invested in accordance
with the terms of Section 5.08 hereof and at such time as the conditions for
payment to the Lessee specified in said Article 11 or 13, as the case may be,
shall be fulfilled and there shall not be continuing any Event of Default,
such amount, and the proceeds of any investment thereof, shall, to the extent
not theretofore applied, be paid to the Lessee to the extent provided in the
Lease.
Section 5.03. Payment After Indenture Event of Default, etc. Except
as otherwise provided in Sections 5.02(b), 5.04(b), 5.04(c) and 5.05 hereof,
all payments (other than Excepted Payments) received and all amounts held or
realized by the Indenture Trustee (a) after an Indenture Event of Default
shall have occurred and so long as such an Indenture Event of Default shall be
continuing, and the Indenture Trustee has commenced the exercise of remedies
pursuant to Article VIII hereof, or (b) after the Certificates shall have
become due and payable as provided in Section 7.02(b) or (c) hereof, shall be
promptly distributed by the Indenture Trustee in the following order of
priority:
first, so much of such payments or amounts as shall be required to
reimburse the Indenture Trustee for any tax, expense, charge or
other loss (including, without limitation, all amounts to be
expended at the expense of, or charged upon the tolls, rents,
revenues, issues, products and profits of, the property included
in the Trust Indenture Estate pursuant to Section 7.03(b) hereof)
incurred by the Indenture Trustee (to the extent not previously
reimbursed) (including, without limitation, the expenses of any
sale, taking or other proceeding, attorneys' fees and expenses,
court costs, and any other expenditures incurred or expenditures
or advances made by the Indenture Trustee or the Holders in the
protection, exercise or enforcement of any right, power or remedy
or any damages sustained by the Indenture Trustee or the Holders,
liquidated or otherwise, upon such Indenture Event of Default)
shall be applied by the Indenture Trustee as between itself and
the Holders in reimbursement of such expenses;
second, (i) so much of such payments or amounts remaining as shall be
required to pay in full the aggregate unpaid Principal Amount of
all Series A Certificates, and the accrued but unpaid interest
and other amounts due thereon and all other Secured Obligations
(other than Make-Whole Premium) in respect of the Series A
Certificates to the date of distribution, shall be distributed to
the Holders of Series A Certificates, and in case the aggregate
amount so to be distributed shall be insufficient to pay in full
as aforesaid, then ratably, without priority of one over the
other, in the proportion that the aggregate unpaid Principal
Amount of all Series A Certificates held by each holder plus the
accrued but unpaid interest and other amounts due hereunder or
thereunder (other than Make-Whole Premium) to the date of
distribution, bears to the aggregate unpaid Principal Amount of
all Series A Certificates held by all such holders plus the
accrued but unpaid interest and other amounts due thereon (other
than Make-Whole Premium) to the date of distribution;
(ii) after giving effect to paragraph (i) above, so much of
such payments or amounts remaining as shall be required to pay in
full the aggregate unpaid Principal Amount of all Series B
Certificates, and the accrued but unpaid interest and other
amounts due thereon and all other Secured Obligations (other than
Make-Whole Premium) in respect of the Series B Certificates to
the date of distribution, shall be distributed to the Holders of
Series B Certificates, and in case the aggregate amount so to be
distributed shall be insufficient to pay in full as aforesaid,
then ratably, without priority of one over the other, in the
proportion that the aggregate unpaid Principal Amount of all
Series B Certificates held by each holder plus the accrued but
unpaid interest and other amounts due hereunder or thereunder
(other than Make-Whole Premium) to the date of distribution,
bears to the aggregate unpaid Principal Amount of all Series B
Certificates held by all such holders plus the accrued but unpaid
interest and other amounts due thereon (other than Make-Whole
Premium) to the date of distribution; and
(iii) after giving effect to paragraph (ii) above, so much of
such payments or amounts remaining as shall be required to pay in
full the aggregate unpaid Principal Amount of all Series C
Certificates, and the accrued but unpaid interest and other
amounts due thereon and all other Secured Obligations (other than
Make-Whole Premium) in respect of the Series C Certificates to
the date of distribution, shall be distributed to the Holders of
Series C Certificates, and in case the aggregate amount so to be
distributed shall be insufficient to pay in full as aforesaid,
then ratably, without priority of one over the other, in the
proportion that the aggregate unpaid Principal Amount of all
Series C Certificates held by each holder plus the accrued but
unpaid interest and other amounts due hereunder or thereunder
(other than Make-Whole Premium) to the date of distribution,
bears to the aggregate unpaid Principal Amount of all Series C
Certificates held by all such holders plus the accrued but unpaid
interest and other amounts due thereon (other than Make-Whole
Premium) to the date of distribution;
(it being understood that amounts payable under this clause
"second" shall not include Make-Whole Premium); and
third, the balance, if any of such payments or amounts remaining
thereafter shall be distributed to the Owner Trustee for
distribution pursuant to the Trust Agreement.
Section 5.04. Certain Payments. (a) Except as otherwise provided
in this Indenture, any payments received by the Indenture Trustee which are to
be applied according to any provision in any other Indenture Document shall be
applied thereunder in accordance therewith.
(b) The Indenture Trustee will distribute, promptly upon receipt, any
indemnity or other payment received by it from the Owner Trustee or the Lessee
in respect of (i) the Indenture Trustee in its individual capacity, (ii) the
Subordination Agent, (iii) each Liquidity Provider, and (iv) the Pass Through
Trustee, in each case whether pursuant to Article 8 or 9 of the Participation
Agreement or as Supplemental Rent, directly to the Person (which may include
the Indenture Trustee) entitled thereto. Any payment received by the
Indenture Trustee under clause (b) of the last paragraph of Section 2.04 shall
be distributed to the Subordination Agent to be distributed in accordance with
the terms of the Intercreditor Agreement.
(c) Notwithstanding anything to the contrary contained herein, any
sums received by the Indenture Trustee which constitute Excepted Payments
shall be distributed promptly upon receipt by the Indenture Trustee directly
to the Person or Persons entitled thereto.
Section 5.05. Other Payments. Any payments received by the Indenture
Trustee for which no provision as to the application thereof is made elsewhere
in this Indenture or in any other Indenture Document (including without
limitation Article 9 of the Lease) shall be distributed by the Indenture
Trustee (a) to the extent received or realized at any time prior to the
payment in full of all obligations to the Holders, in the order of priority
specified in Section 5.01 hereof, and (b) to the extent received or realized
at any time after payment in full of all obligations to the Holders, in the
following order of priority: first, in the manner provided in clause "first"
of Section 5.03 hereof and second, in the manner provided in clause "third" of
Section 5.03 hereof.
Section 5.06. Payments to Owner Trustee. Any amounts distributed
hereunder by the Indenture Trustee to the Owner Trustee shall be paid to the
Owner Trustee by wire transfer of immediately available funds of the type
received by the Indenture Trustee at such office and to such account or
accounts of such entity or entities as shall be designated by notice from the
Owner Trustee to the Indenture Trustee from time to time. The Owner Trustee
hereby notifies the Indenture Trustee that unless and until the Indenture
Trustee receives notice to the contrary from the Owner Trustee, all amounts to
be distributed to the Owner Trustee hereunder for distribution in accordance
with the Trust Agreement shall be distributed by wire transfer of immediately
available funds of the type received by the Indenture Trustee to such account
of each Owner Participant as may be specified pursuant to Section 2.06 of the
Trust Agreement.
Section 5.07. Application of Payments. Each payment of principal of
and interest or other amounts due on each Certificate shall, except as
otherwise provided herein, be applied, first, to the payment of interest on
such Certificate due and payable to the date of such payment, as provided in
such Certificate, as well as any interest on overdue principal and Make-Whole
Premium, if any, and, to the extent permitted by law, interest and other
amounts due thereunder, second, to the payment of any other amount (other than
the principal of such Certificate) due hereunder to the Holder of such
Certificate or under such Certificate, third, to the payment of the principal
of such Certificate if then due hereunder or under such Certificate and
fourth, the balance, if any remaining thereafter, to the payment of the
principal of such Certificate remaining unpaid (provided that such Certificate
shall not be subject to prepayment without the consent of the affected Holder
except as permitted by Sections 6.02, 6.06 and 8.02 hereof); provided that,
solely for the purpose of determining whether an Indenture Event of Default
shall have occurred and be continuing, each such payment shall be deemed
applied in the following order of priority: first, in the manner provided in
clause "first" above, second, in the manner provided in clause "third" above,
third, in the manner provided in clause "second" above and fourth, in the
manner provided in clause "fourth" above.
Section 5.08. Investment of Amounts Held by Indenture Trustee.
Amounts held by the Indenture Trustee pursuant to Section 5.02(b) hereof or
pursuant to any provision of any Indenture Document providing for investment
by the Indenture Trustee of sums pursuant to Section 23.01 of the Lease or
this Section 5.08 shall be invested by the Indenture Trustee from time to time
in securities selected by (i) so long as no Event of Default shall have
occurred and be continuing, the Lessee (and in the absence of written
direction by the Lessee, the Indenture Trustee shall invest such monies in
direct obligations of the United States of America) or (ii) so long as an
Event of Default shall have occurred and be continuing, the Indenture Trustee
and in each case shall be of the type listed in clauses (i) through (iv) of
Section 23.01 of the Lease. Unless otherwise expressly provided in this
Indenture, any income realized as a result of any such investment, net of the
Indenture Trustee's reasonable fees and expenses in making such investment,
shall be held and applied by the Indenture Trustee in the same manner as the
principal amount of such investment is to be applied and any losses, net of
earnings and such reasonable fees and expenses, shall be charged against the
principal amount invested. The Lessee shall be responsible for and will
promptly pay to the Indenture Trustee or the Lessor, as the case may be, on
demand, the amount of any loss realized as the result of any such investment
(together with any fees, commissions and other costs and expenses, if any,
incurred by the Indenture Trustee or the Lessor in connection with such
investment), such amount to be disposed of in accordance with the terms hereof
or the Lease, as the case may be. The Indenture Trustee shall not be liable
for any loss resulting from any investment made by it under this Indenture in
accordance with instructions from the Lessee other than by reason of its
willful misconduct or gross negligence, and any such investment may be sold
(without regard to its maturity) by the Indenture Trustee without instructions
whenever the Indenture Trustee reasonably believes such sale is necessary to
make a distribution required by this Indenture.
Unless otherwise confirmed in writing, an account statement delivered
by the Indenture Trustee to the Owner Trustee (with a copy to the Lessee)
shall be deemed written confirmation by the Owner Trustee that the investment
transactions identified therein accurately reflect the investment directions
given to the Indenture Trustee by or on behalf of the Owner Trustee, unless
the Owner Trustee (or the Lessee on its behalf) notifies the Indenture Trustee
in writing to the contrary within 30 days of the date of receipt of such
statement.
Section 5.09. Withholding Taxes. The Indenture Trustee shall
withhold any Taxes required to be withheld, except to the extent that the
Holder has furnished evidence satisfactory to the Indenture Trustee of any
exemption from withholding claimed by such Holder and under no circumstances
shall the failure of any such Holder to receive any amounts so withheld
constitute an Indenture Event of Default. Notwithstanding any provision to
the contrary in Sections 5.01 through 5.05 hereof and subject to Article 8 of
the Participation Agreement, if the Lessee is required to pay any such Tax, or
any interest or penalty thereon, or to indemnify the Owner Participants or the
Owner Trustee with respect thereto pursuant to Section 8.01(c) of the
Participation Agreement, the Lessee shall be entitled to receive any payments
otherwise distributable to the Holder of any Certificate who was subject to
such Tax pursuant to Sections 5.01 to 5.05 hereof until the foregoing amounts
shall have been recovered in full by the Lessee.
ARTICLE VI
PREPAYMENT OF CERTIFICATES
Section 6.01. No Prepayment Prior to Maturity. Except as provided
in Sections 6.02, 6.06 and 8.02 hereof, the Certificates may not be prepaid
prior to their respective Maturities.
Section 6.02. Prepayment of Certificates. (a) The Outstanding
Certificates shall be prepaid in full (and not in part):
(i) If an Event of Loss occurs with respect to the Airframe or with
respect to the Airframe and the Engines or engines then installed on the
Airframe (unless pursuant to Section 11.03 of the Lease and Section 9.08
hereof replacement equipment is substituted therefor).
(ii) If the Lessee, pursuant to Section 4.02(a) of the Lease, gives
notice of purchase of the Aircraft (and Section 2.12 hereof shall not be
applicable in connection with such purchase).
(iii) If any Owner Participant or the Owner Trustee on behalf of any
Owner Participant gives notice of prepayment to the Indenture Trustee
pursuant to Section 8.02 hereof.
(iv) If the Lessee, pursuant to Section 10.01 of the Lease, gives
notice of a voluntary termination for obsolescence or surplus, but subject
to Section 6.02(c) below.
(v) Pursuant to Section 15.01 of the Participation Agreement in
connection with a Refinancing of the Certificates.
(vi) As contemplated by Section 2.16 hereof and Section 3.05(b) of the
Participation Agreement if the Delivery Date has not occurred on or prior
to the Cut-Off Date.
(vii) At the option of the Owner Trustee with the prior written
consent of the Lessee upon not less than 25 days' prior written notice.
(b) In the event of a prepayment of the Certificates pursuant to
Sections 6.02(a)(ii), (iv) and (v) above, the Owner Trustee, having received
notice from the Lessee in accordance with and subject to the terms of Section
4.02(a) or 10.01 of the Lease or Article 15 of the Participation Agreement, as
the case may be, shall give irrevocable (subject to Section 6.02(c) hereof)
written notice to the Indenture Trustee and to the Holders of all of the
Certificates specifying the Business Day on which the Certificates shall be
prepaid. In the case of a prepayment of the Certificates pursuant to Section
6.02(a)(i) above, the Certificates shall be prepaid in full on the Loss
Payment Date as defined in Section 11.02 of the Lease. In the case of a
prepayment of the Certificates pursuant to Section 6.02(a)(iii) above, the
Certificates shall be prepaid in full on the date so designated in the notice
referred to in Section 8.02 hereof. In the case of a prepayment of the
Certificates pursuant to Section 6.02(a)(ii) or (iv) above, the Certificates
shall be prepaid in full on the Termination Date. In the case of a prepayment
of the Certificates pursuant to Section 6.02(a)(v) above, the Certificates
shall be prepaid on the effective date of the Refinancing. In the case of a
prepayment of the Certificates pursuant to Section 6.02(a)(vi) above, the
Certificates shall be prepaid on the 15th day following the Cut-Off Date. In
the case of a prepayment of the Certificates pursuant to Section 6.02(a)(vii)
above, the Certificates shall be prepaid on the date designated in the notice
referred to therein. The day on which the Certificates are to be prepaid
pursuant to this Section 6.01(b) is herein referred to as the "Prepayment
Date".
On or prior to the Prepayment Date, immediately available funds shall
be deposited with the Indenture Trustee in an amount in respect of the
Certificates equal to:
(1) in the event of a prepayment of the Certificates pursuant to
Section 6.02(a)(i), 6.02(a)(iii) (if clause (i) of the first sentence of
Section 8.02(a) hereof is applicable) or, if such prepayment is made on or
after the applicable Premium Termination Date, 6.02(a)(ii), 6.02(a)(iii)
(if clause (ii) of the first sentence of Section 8.02(a) hereof is
applicable) or 6.02(a)(vi) above, the sum of (A) the aggregate principal
amount of such Certificates then Outstanding, (B) accrued interest on the
Certificates to the Prepayment Date and (C) all other aggregate sums due
the Indenture Trustee hereunder or under the Participation Agreement or the
Lease, but excluding any Make-Whole Premium or other premium or penalty, or
(2) if such prepayment is made prior to the applicable Premium
Termination Date, in the event of a prepayment of the Certificates pursuant
to Section 6.02(a)(ii), 6.02(a)(iii) (if clause (ii) of the first sentence
of Section 8.02(a) hereof is applicable), 6.02(a)(iv), 6.02(a)(v) or
6.02(a)(vii) above, the sum of the amounts specified in clauses (A), (B)
and (C) of the preceding clause (1) plus any Make-Whole Premium payable in
respect of all Certificates with respect to which the Premium Termination
Date therefor has not occurred
(the aggregate amount required to be paid pursuant to this sentence being
herein referred to as the "Prepayment Price").
(c) If, pursuant to the last paragraph of Section 10.01(f) of the
Lease, no Termination Date shall occur, or if no refinancing shall occur
pursuant to Section 15.01 of the Participation Agreement, the Lessee shall
give notice thereof to the Indenture Trustee, and the prepayment proposed to
be effected in respect thereof shall not occur.
Section 6.03. Notice of Prepayment to Holders. In order to effect
any prepayment set forth in Section 6.02(a) hereof, the Indenture Trustee
shall give prompt notice by first class mail of prepayment to each Holder of
an Outstanding Certificate. Such notice may be revoked by the Owner Trustee
at any time on or before the Prepayment Date by prompt notice to the Holders
except as otherwise provided in the Lease or the Participation Agreement.
All notices of prepayment shall state:
(1) the Prepayment Date,
(2) the applicable basis for determining the Prepayment Price,
(3) that on the Prepayment Date, subject to the provisions hereof,
the Prepayment Price will become due and payable, and that interest
on the Certificates shall cease to accrue on and after such
Prepayment Date, and
(4) the place or places where such Certificates are to be
surrendered for payment.
Section 6.04. Deposit of Prepayment Price and Sinking Fund Redemption
Price. On the Prepayment Date or the Sinking Fund Redemption Date (as defined
in Section 6.06 hereof), the Owner Trustee shall, to the extent an amount
equal to the Prepayment Price or the Sinking Fund Redemption Price (as defined
in Section 6.06 hereof), as the case may be, shall not then be held in cash or
Permitted Investments (marked-to-market net of all costs and expenses of
liquidation thereof) by the Indenture Trustee in immediately available funds
and deposited for the purpose, pay to the Indenture Trustee an amount equal to
the difference between (a) the amount then so held and (b) the Prepayment
Price or the Sinking Fund Redemption Price, as the case may be. If there
shall so be on deposit and/or deposited the applicable Prepayment Price or
Sinking Fund Redemption Price on or prior to a Prepayment Date or Sinking Fund
Redemption Date, interest shall cease to accrue in respect of all or, in the
case of a mandatory sinking fund redemption, the relevant portion being
prepaid of, the Outstanding Certificates on and after such Prepayment Date or
such Sinking Fund Redemption Date.
Section 6.05. Certificates Payable on Prepayment Date. On the
Prepayment Date, the Outstanding Certificates shall (except (A) if the Owner
Trustee has requested the Indenture Trustee to revoke such notice of
prepayment in accordance with Section 6.03 hereof or (B) as otherwise provided
in the Lease) become due and payable and from and after such Prepayment Date
(unless there shall be a default in the payment of the Prepayment Price) such
Certificates shall cease to bear interest. Upon surrender by any Holder of
its Certificate for prepayment in accordance with said notice, such Holder
shall be paid the principal amount of its Certificate then outstanding, accrued
interest thereon to the Prepayment Date, all other sums due to such Holder
hereunder, under the Participation Agreement or the Lease, plus, if a
Make-Whole Premium is payable pursuant to Section 6.02(b) hereof, the
Make-Whole Premium in respect of such Certificate.
If any Certificate called for prepayment shall not be so paid upon
surrender thereof for prepayment, the principal shall, until paid, continue to
bear interest from the Prepayment Date at the interest rate applicable to such
Certificate.
Section 6.06. Mandatory Sinking Fund Redemption. The Certificates
shall be subject to partial redemption, at the aggregate principal amount set
forth for the Certificates of the respective Series and Maturity, on a pro
rata basis, on each date specified in this Section (a "Sinking Fund Redemption
Date") for such payment on the Certificates of such Series and Maturity. The
Owner Trustee shall deposit funds sufficient to pay the Sinking Fund
Redemption Price with the Indenture Trustee as provided in Section 6.04
hereof. The Indenture Trustee shall pay from the amounts so deposited on each
applicable Sinking Fund Redemption Date to the Certificates of each Series in
the order of priority set forth in clause "first" of Section 5.01 hereof and
among the Holders of the Certificates of each Series then Outstanding on a pro
rata basis the aggregate principal amount set forth below, together with
accrued interest to such Sinking Fund Redemption Date, but without Make-Whole
Premium (the "Sinking Fund Redemption Price"):
Principal Amount
<TABLE>
<CAPTION>
Series A Series B Series C
Certificates with Certificates with Certificates with
Sinking Fund a Maturity of a Maturity of a Maturity of
Redemption Date January 15, 2017 January 15, 2013 January 15, 2009
- ---------------- ----------------- ----------------- -----------------
<S> <C> <C> <C>
July 15, 1997 0 0 0
January 15, 1998 705,440 118,915 612
July 15, 1998 0 0 0
January 15, 1999 712,440 267,165 422,853
July 15, 1999 0 0 0
January 15, 2000 712,440 267,165 487,095
July 15, 2000 0 0 0
January 15, 2001 712,440 267,165 601,601
July 15, 2001 0 0 0
January 15, 2002 712,440 267,165 721,202
July 15, 2002 0 0 0
January 15, 2003 712,440 267,165 850,280
July 15, 2003 0 0 0
January 15, 2004 356,220 267,165 1,345,453
July 15, 2004 356,220 0 0
January 15, 2005 660,860 267,165 818,083
July 15, 2005 51,580 0 0
January 15, 2006 356,220 133,583 1,767,096
July 15, 2006 356,220 133,582 0
January 15, 2007 712,440 267,165 2,965,098
July 15, 2007 0 0 0
January 15, 2008 712,440 267,165 2,280,789
July 15, 2008 0 0 0
January 15, 2009 712,440 1,339,061 747,838
July 15, 2009 0 0 0
January 15, 2010 712,440 2,158,388 0
July 15, 2010 0 0 0
January 15, 2011 712,440 3,441,339 0
July 15, 2011 0 0 0
January 15, 2012 712,440 2,766,370 0
July 15, 2012 0 0 0
January 15, 2013 4,852,281 714,277 0
July 15, 2013 0 0 0
January 15, 2014 5,917,242 0 0
July 15, 2014 80,029 0 0
January 15, 2015 6,142,140 0 0
July 15, 2015 313,361 0 0
January 15, 2016 6,384,222 0 0
July 15, 2016 564,520 0 0
January 15, 2017 681,605 0 0
</TABLE>
ARTICLE VII
INDENTURE EVENTS OF DEFAULT; REMEDIES
OF INDENTURE TRUSTEE AND HOLDERS
Section 7.01. Indenture Event of Default. "Indenture Event of
Default" means any of the following events (whatever the reason for such
Indenture Event of Default and whether it shall be voluntary or involuntary or
come about or be effected by operation of law or pursuant to or in compliance
with any judgment, decree or order of any court or any order, rule or
regulation of any administrative or governmental body):
(i) any Event of Default specified in Article 16 of the Lease (other
than an Event of Default arising solely as the result of the failure to
make an Excepted Payment unless the Owner Participants shall notify the
Indenture Trustee in writing that such failure shall constitute an
Indenture Event of Default); or
(ii) any failure of the Owner Trustee to (A) observe any of its
covenants in the fifth paragraph following the Habendum Clause hereof or
Section 3.05(b)(iii) hereof or Section 7.02(b) of the Participation
Agreement (unless otherwise removed as Owner Trustee within 10 days after
notice thereof to the Owner Participants) or (B) observe or perform any
other covenant or obligation of the Owner Trustee in this Indenture (other
than any such failure arising by reason of an Event of Default or specified
in clause (iii) below) and the continuance of such failure for a period of
thirty (30) days or, if such covenant is capable of cure and the Owner
Trustee is diligently proceeding to effect such cure, 120 days, after
written notice thereof identified as a "Notice of Indenture Event of
Default" to the Owner Trustee and the Owner Participants by the Indenture
Trustee or by the Holders of not less than 25% in aggregate principal
amount of Outstanding Certificates specifying such failure to so observe or
perform and requiring it to be remedied; or
(iii) the failure of the Owner Trustee other than by reason of a
Default or an Event of Default (i) to pay principal, interest or Make-Whole
Premium, if any, on any Certificate when due, and such failure shall have
continued unremedied for ten (10) Business Days after the date when due or
(ii) to pay any other amounts hereunder or under the Certificates when due
and such failure shall have continued unremedied for a period of thirty
(30) days after the Owner Trustee and the Owner Participants shall receive
written demand therefor from the Indenture Trustee or by the Holders of not
less than 25% in aggregate principal amount of Outstanding Certificates; or
(iv) (A) any representation or warranty made by WTC, the Owner
Trustee, any Owner Participant or the Owner Participant Guarantor or any
Owner Trustee Guarantor, in Article 7 of the Participation Agreement, in
Section 5.01 of the Lease, in the Owner Participant Guaranty or in any
certificate of WTC, the Owner Trustee, any Owner Participant, or the Owner
Participant Guarantor furnished to the Indenture Trustee or any Holder in
connection herewith or therewith or pursuant hereto or thereto shall prove
to have been incorrect when made and was and remains in any respect
material to the Holders, and such misrepresentation shall not have been
corrected within 30 days following notice thereof identified as a "Notice
of Indenture Event of Default" being given to the Owner Trustee and any
Owner Participant by the Indenture Trustee or by the Holders of not less
than 25% in aggregate principal amount of Outstanding Certificates; or
(B) any covenant made by WTC or the Owner Trustee in the
Participation Agreement, or by any Owner Participant or the Owner
Participant Guarantor in Article 7 of the Participation Agreement or in the
Owner Participant Guaranty shall be breached in any respect and such breach
shall remain unremedied for a period of thirty (30) days after there has
been given to the Owner Trustee and any Owner Participant by the Indenture
Trustee or by Certificate Holders of not less than 25% in aggregate
principal amount of Outstanding Certificates a written notice identified as
a "Notice of Indenture Event of Default" specifying such breach and
requiring it to be remedied; or
(v) the Owner Trustee, the Lessor's Estate, any Owner Trustee
Guarantor, any Owner Participant or the Owner Participant Guarantor shall
file any petition or answer seeking for itself any reorganization,
arrangement, composition, readjustment, liquidation, dissolution or similar
relief under any present or future bankruptcy, insolvency or similar
statute, law or regulation;
(vi) an order for relief shall be entered in respect of the Owner
Trustee or the Lessor's Estate or any Owner Trustee Guarantor or any Owner
Participant or the Owner Participant Guarantor by a court having
jurisdiction in the premises in an involuntary case under the federal
bankruptcy laws as now or hereafter in effect; or the Owner Trustee or the
Lessor's Estate or any Owner Trustee Guarantor or any Owner Participant or
the Owner Participant Guarantor shall file any answer admitting or not
contesting the material allegations of a petition filed against the Owner
Trustee or the Lessor's Estate or any Owner Trustee Guarantor or any Owner
Participant or the Owner Participant Guarantor in any proceeding referred
to in clause (vi) below or seek or consent or acquiesce in the appointment
of any trustee, custodian, receiver or liquidator of the Owner Trustee or
the Lessor's Estate or any Owner Trustee Guarantor or any Owner Participant
or the Owner Participant Guarantor, as the case may be, or of all or any
substantial part of its properties; or
(vi) without the consent or acquiescence of the Owner Trustee or the
Lessor's Estate or any Owner Trustee Guarantor or any Owner Participant or
the Owner Participant Guarantor, as the case may be, an order shall be
entered constituting an order for relief or approving a petition for relief
or reorganization or any other petition seeking any reorganization,
arrangement, composition, readjustment, liquidation, dissolution or other
similar relief under any present or future bankruptcy, insolvency or
similar statute, law or regulation, or if any such petition shall be filed
against the Owner Trustee or the Lessor's Estate or any Owner Trustee
Guarantor or any Owner Participant or the Owner Participant Guarantor, as
the case may be, and such petition shall not be dismissed within 90 days,
or if, without the consent or acquiescence of the Owner Trustee or the
Lessor's Estate or any Owner Trustee Guarantor or any Owner Participant or
the Owner Participant Guarantor, as the case may be, an order shall be
entered appointing a trustee, custodian, receiver or liquidator of the
Owner Trustee or the Lessor's Estate or any Owner Trustee Guarantor or any
Owner Participant or the Owner Participant Guarantor, as the case may be,
or of all or any substantial part of the properties of the Owner Trustee or
the Lessor's Estate or any Owner Trustee Guarantor or any Owner Participant
or the Owner Participant Guarantor, as the case may be, and such order
shall not be dismissed within 90 days; or
(viii) any Owner Trustee Guaranty or Owner Participant Guaranty shall
cease to be a valid and enforceable obligation of any Owner Trustee
Guarantor or the Owner Participant Guarantor, as the case may be, or
otherwise shall not be in full force and effect.
Section 7.02. Remedies. (a) If an Indenture Event of Default shall
have occurred and be continuing and so long as the same shall be continuing
unremedied, then and in every such case, the Indenture Trustee may, and when
required by the provisions of Article IX or Section 7.02(c) hereof, shall (i)
exercise any or all of the rights and powers and pursue any and all of the
remedies pursuant to this Article VII and (ii) in the event such Indenture
Event of Default is an Indenture Event of Default referred to in clause (i) of
Section 7.01 hereof, exercise any and all of the remedies pursuant to Article
17 of the Lease; provided that without the consent of the Owner Trustee such
exercise of remedies shall not occur until after the latest date on which the
Owner Trustee may cure the related Event of Default pursuant to Section 8.03
hereof. The Indenture Trustee may take possession of all or any part of the
properties covered or intended to be covered by the Lien and security interest
created hereby or pursuant hereto and may exclude the Owner Participants, the
Owner Trustee, the Lessee and any transferee of the Lessee and all Persons
claiming under any of them wholly or partly therefrom. In addition, the
Indenture Trustee may exercise any other right or remedy in lieu of or in
addition to the foregoing that may be available to it under applicable law, or
proceed by appropriate court action to enforce the terms hereof, of the Lease,
or both, or to rescind the Lease. Without limiting any of the foregoing, it
is understood and agreed that the Indenture Trustee may exercise any right of
sale of the Aircraft available to it, even though it shall not have taken
possession of the Aircraft and shall not have possession thereof at the time
of such sale.
Notwithstanding the foregoing, it is understood and agreed that if the
Indenture Trustee shall proceed to foreclose the Lien of this Indenture, it
shall substantially simultaneously therewith, to the extent the Indenture
Trustee is then entitled to do so hereunder and under the Lease, and is not
then stayed or otherwise prevented from doing so, proceed (to the extent it
has not already done so) to declare the Lease in default and commence the
exercise in good faith of one or more of the remedies under Section
17.01(a)(i), (ii), or (vi) of the Lease (as it shall determine in its sole
discretion). It is further understood and agreed that if the Indenture
Trustee is unable to exercise one or more remedies under Section 17 of the
Lease because of any stay or operation or law or otherwise, the Indenture
Trustee shall not be entitled to foreclose the Lien of this Indenture (A)
until the earlier of (i) 60 days from the date of any such stay or applicable
order under Section 1110 of the Bankruptcy Code including any extension
consented to by the Indenture Trustee or the Holders of Certificates of such
period permitted under Section 1110(b) of the Bankruptcy Code and (ii) the
date of actual repossession of the Aircraft by the Indenture Trustee or (B) if
the Lessee has agreed to perform or assume the Lease and no Event of Default
other than as specified in Section 16.01(e), (f) or (g) of the Lease shall be
continuing. For the avoidance of doubt, it is expressly understood and agreed
that except as aforesaid the above-described inability of the Indenture
Trustee to exercise any right or remedy under the Lease shall in no event and
under no circumstances prevent the Indenture Trustee from exercising all of
its rights, powers and remedies under this Indenture, including, without
limitation, this Article VII. The Indenture Trustee further agrees that
notice of intent to foreclose shall be given to the Owner Trustee at the
earlier of the commencement of any proceeding or at least 30 days prior to the
consummation of foreclosure of the Lien of this Indenture.
(b) If an Indenture Event of Default under clause (v), (vi) or (vii)
of Section 7.01 hereof shall occur and be continuing, the unpaid principal of
all Outstanding Certificates, together with interest accrued but unpaid
thereon and all other amounts due thereunder, but without Make-Whole Premium,
shall immediately become due and payable, without presentment, demand, protest
or notice, all of which are hereby waived.
(c) If any Indenture Event of Default not described in the preceding
paragraph (b) shall have occurred and be continuing, then and in every such
case, the Indenture Trustee may on its own accord or at the direction of
Holders of not less than 25% in aggregate principal amount of Outstanding
Certificates, at any time, by written notice to the Owner Trustee and the
Lessee, declare the principal of all the Certificates to be due and payable,
whereupon the unpaid principal amount of all Outstanding Certificates,
together with accrued interest thereon and all other amounts due thereunder,
but without Make-Whole Premium, shall immediately become due and payable
without presentment, demand, protest or other notice, all of which are hereby
waived. At any time after such declaration and prior to the sale or
disposition of the Trust Indenture Estate, however, the Holders of not less
than 50% in aggregate principal amount of Outstanding Certificates, by notice
to the Indenture Trustee, the Owner Trustee and the Lessee, may rescind such
declaration, whether made by the Indenture Trustee on its own accord or as
directed, if (x) there has been paid or deposited with the Indenture Trustee a
sum sufficient to pay all overdue installments of interest on all Certificates
(together, to the extent permitted by law, with interest on such overdue
installments of interest), the principal on any Certificates that has become
due otherwise than by such declaration of acceleration, all sums paid or
advanced by the Indenture Trustee hereunder and the reasonable compensation,
expenses, disbursements and advances of the Indenture Trustee, its agents and
counsel, or (y) all Indenture Events of Default (other than the nonpayment of
principal that has become due solely because of such acceleration) have been
either cured or waived as provided in Section 7.11 hereof. No such rescission
shall affect any subsequent default or impair any right consequent thereon.
(d) Each Holder shall be entitled at any sale to credit against any
purchase price bid at such sale by such Holder all or any part of the unpaid
obligations owing to such Holder secured by the Lien of this Indenture (but
only to the extent that an amount equal to such purchase price would have been
paid to such Holder pursuant to Article V hereof if such purchase price were
paid in cash and the foregoing provisions of this subsection (d) were not
given effect).
Section 7.03. Return of Aircraft, etc. Subject to Section 7.02
hereof: (a) If an Indenture Event of Default shall have occurred and be
continuing, at the request of the Indenture Trustee, the Owner Trustee shall
promptly execute and deliver to the Indenture Trustee such documents as the
Indenture Trustee may deem necessary or advisable to enable the Indenture
Trustee or an agent or representative designated by the Indenture Trustee, at
such time or times and place or places as the Indenture Trustee may specify,
to obtain possession of all or any part of the Trust Indenture Estate to which
the Indenture Trustee shall at the time be entitled under this Indenture.
Subject to the foregoing, if the Owner Trustee shall for any reason fail to
execute and deliver such documents after such request by the Indenture
Trustee, the Indenture Trustee may (i) obtain a judgment conferring on the
Indenture Trustee or an agent or representative designated by the Indenture
Trustee, the right to immediate possession and requiring the Owner Trustee to
execute and deliver such instruments and documents to the Indenture Trustee or
an agent or representative designated by the Indenture Trustee, to the entry
of which judgment the Owner Trustee hereby specifically consents, and (ii)
pursue all or part of such Trust Indenture Estate wherever it may be found and
enter any of the premises of the Lessee or the Owner Trustee wherever such
Trust Indenture Estate may be or be supposed to be and search for such Trust
Indenture Estate and take possession of and remove such Trust Indenture
Estate. All expenses of obtaining such judgment or of pursuing, searching for
and taking such Trust Indenture Estate shall, until paid, be secured by the
Lien of this Indenture.
(b) Upon every such taking of possession, the Indenture Trustee may,
from time to time, at the expense of the Trust Indenture Estate, make all such
expenditures for maintenance, insurance and repairs to and of such Trust
Indenture Estate, as the Indenture Trustee may reasonably deem proper. In
each case subject to Section 7.02 hereof, the Indenture Trustee shall have the
right to maintain, use, operate, store, lease, control or manage the Trust
Indenture Estate and to carry on the business and to exercise all rights and
powers of the Owner Trustee relating to the Trust Indenture Estate, as the
Indenture Trustee may reasonably deem best, including the right to enter into
any and all such agreements with respect to the maintenance, insurance, use,
operation, storage, leasing, control, management or disposition of all or any
part of the Trust Indenture Estate as the Indenture Trustee may determine.
Further, the Indenture Trustee shall be entitled to collect and receive
directly all tolls, rents (including Rent), revenues, issues, income, products
and profits of the Trust Indenture Estate other than Excepted Payments,
without prejudice, however, to the right of the Indenture Trustee under any
provision of this Indenture to collect and receive all cash held by, or
required to be deposited with, the Indenture Trustee under this Indenture.
Such tolls, rents (including Rent), revenues, issues, income, products and
profits shall be applied to pay the expenses of the use, operation, storage,
leasing, control, management, or disposition of the Trust Indenture Estate,
and of all maintenance and repairs, and to make all payments which the
Indenture Trustee may be required or may reasonably elect to make for any
taxes, assessments, insurance or other proper charges upon the Trust Indenture
Estate (including the employment of engineers and accountants to examine,
inspect and make reports upon the properties and books and records of the
Owner Trustee and the Lessee), and all other payments which the Indenture
Trustee may be required or authorized to make under any provision of this
Indenture, as well as just and reasonable compensation for the services of the
Indenture Trustee and of all persons properly engaged and employed for such
purposes by the Indenture Trustee; provided, that any excess amounts shall be
promptly distributed in accordance with Section 5.03 hereof.
(c) If an Indenture Event of Default shall have occurred and be
continuing and the Indenture Trustee shall be entitled to exercise remedies
hereunder, and subject to Article VIII hereof, the Indenture Trustee, either
with or without taking possession, and either before or after taking
possession, and without instituting any legal proceedings whatsoever, may
sell, assign, transfer and deliver the whole or, from time to time, to the
extent permitted by law, any part of the Trust Indenture Estate, or any part
thereof, or interest therein, at any private sale or public auction, with or
without demand, advertisement or notice, except as expressly provided for
below in this Section 7.03(c), for cash or credit or for other property, for
immediate or future delivery, and for such price or prices and on such terms
as the Indenture Trustee in its sole discretion may determine; provided, that
any such action shall be at the time lawful and that all mandatory legal
requirements shall be complied with. Any notice required pursuant to the
terms hereof in the case of a public sale, shall state the time and place
fixed for such sale. Any such public sale shall be held at such time or times
within ordinary business hours as the Indenture Trustee shall fix in the
notice of such sale. At any such sale, the Trust Indenture Estate may be sold
in one lot as an entirety or in separate lots. The Indenture Trustee shall
not be obligated to make any sale pursuant to such notice. The Indenture
Trustee may, without notice or publication, adjourn any public or private sale
or cause the same to be adjourned from time to time by announcement at the
time and place fixed for such sale, and any such sale may be made at any time
or place to which the same may be so adjourned without further notice or
publication. The Indenture Trustee may exercise such right of sale without
possession or production of the Certificates or proof of ownership thereof,
and as representative of the Holders may exercise such right without notice to
the Holders or without including the Holders as parties to any suit or
proceedings relating to the foreclosure of any part of the Trust Indenture
Estate. The Owner Trustee shall execute any and all such bills of sale,
assignments and other documents, and perform and do all other acts and things
requested by the Indenture Trustee in order to permit consummation of any sale
of the Trust Indenture Estate in accordance with this Section 7.03(c) and to
effectuate the transfer or conveyance referred to in the first sentence of
this Section 7.03(c). Notwithstanding any other provision of this Indenture,
the Indenture Trustee shall not sell the Trust Indenture Estate or any part
thereof unless the Certificates shall have been accelerated.
(d) To the extent permitted by applicable law, the Indenture Trustee
or any Holder may be a purchaser of the Trust Indenture Estate or any part
thereof or any interest therein at any sale thereof, whether pursuant to
foreclosure or power of sale or otherwise. The Indenture Trustee may apply
against the purchase price therefor the amount then due hereunder or under any
of the Certificates secured hereby and any Holder may apply against the
purchase price therefor the amount then due to it hereunder, under any other
Indenture Document or under the Certificates held by such Holder to the extent
of such portion of the purchase price as it would have received had it been
entitled to share any distribution thereof. The Indenture Trustee or any
Holder or nominee thereof shall, upon any such purchase, acquire good title to
the property so purchased, free of the Lien of this Indenture and, to the
extent permitted by applicable law, free of all rights of redemption in the
Owner Trustee or the Owner Participants in respect of the property so
purchased.
(e) Subject to Article VIII hereof, and effective upon the
occurrence and continuance of an Indenture Event of Default, the Owner Trustee
hereby irrevocably appoints and constitutes the Indenture Trustee the true and
lawful attorney-in-fact of the Owner Trustee in its name and stead and on its
behalf, for the purpose of effectuating any sale, assignment, transfer or
delivery for the enforcement of the Lien of this Indenture, whether pursuant
to foreclosure or power of sale or otherwise, to execute and deliver all such
bills of sale, assignments and other instruments as the Indenture Trustee may
consider necessary or appropriate, with full power of substitution, and the
Owner Trustee hereby ratifies and confirms all that such attorney or any
substitute shall lawfully do by virtue hereof. Nevertheless, if so requested
by the Indenture Trustee or any purchaser, the Owner Trustee shall ratify and
confirm any such sale, assignment, transfer or delivery, by executing and
delivering to the Indenture Trustee or such purchaser all bills of sale,
assignments, releases and other proper instruments to effect such ratification
and confirmation as may be designated in any such request.
(f) The Indenture Trustee shall, as a matter of right, be entitled to
the appointment of a receiver (who may be the Indenture Trustee or any
successor or nominee) for all or any part of the Trust Indenture Estate,
whether such receivership be incidental to a proposed sale of the Trust
Indenture Estate or the taking of possession thereof or otherwise, and the
Owner Trustee hereby consents to the appointment of such receiver and will not
oppose any such appointment. Any receiver appointed for all or any part of
the Trust Indenture Estate shall be entitled to exercise all of the rights and
powers of the Indenture Trustee with respect to the Trust Indenture Estate.
(g) Any sale of the Trust Indenture Estate or any part thereof or
any interest therein, whether pursuant to foreclosure or power of sale or
otherwise hereunder, shall be a perpetual bar against the Owner Trustee after
the expiration of the period, if any, during which the Owner Trustee shall
have the benefit of prepayment laws which may not be waived pursuant to
Section 7.13 hereof.
Section 7.04. Indenture Trustee May Prove Debt. If the Owner
Trustee shall fail to pay any amount payable hereunder or under the
Certificates, the Indenture Trustee, in its own name and as trustee of an
express trust, shall be entitled and empowered to institute any action or
proceedings at law or in equity for the collection of the sums so due and
unpaid, and may prosecute any such action or proceedings to judgment or final
decree, and may enforce any such judgment or final decree against the Owner
Trustee and collect in the manner provided by law out of the property of the
Owner Trustee wherever situated, the moneys adjudged or decreed to be payable;
provided, that any sale of any portion of the Trust Indenture Estate shall be
done in accordance with Section 7.03(c) hereof.
In case there shall be pending proceedings relative to the Owner
Trustee under the Bankruptcy Code or any other applicable Federal or state
bankruptcy, insolvency or other similar law, or in case a receiver, assignee
or trustee in bankruptcy or reorganization, liquidator, sequestrator or
similar official shall have been appointed for or taken possession of the
Owner Trustee or its property, or in case of any other comparable judicial
proceedings relative to the Owner Trustee, or to the creditors or property of
the Owner Trustee, the Indenture Trustee, irrespective of whether the
principal of the Certificates shall then be due and payable as therein or
herein expressed or by declaration or otherwise and irrespective of whether
the Indenture Trustee shall have made any demand pursuant to the provisions of
this Section, shall be entitled and empowered, by intervention in such
proceedings or otherwise:
(a) to file and prove a claim or claims for the whole amount of
principal, interest and other amounts owing and unpaid in respect of the
Certificates or hereunder, and to file such other papers or documents as
may be necessary or advisable in order to have the claims of the Indenture
Trustee (including any claim for reasonable compensation to the Indenture
Trustee and each predecessor Indenture Trustee, and their respective
agents, attorneys and counsel, and for reimbursement of the Indenture
Trustee and each predecessor Indenture Trustee, except as a result of
negligence or bad faith) and of the Holders allowed in any judicial
proceedings relative to the Owner Trustee or to the creditors or property of
the Owner Trustee,
(b) unless prohibited by applicable law and regulations, to vote on
behalf of the Holders in any election of a trustee or a standby trustee in
arrangement, reorganization, liquidation or other bankruptcy or insolvency
proceedings or person performing similar functions in comparable
proceedings, and
(c) to collect and receive any moneys or other property payable or
deliverable on any such claims, and to distribute all amounts received with
respect to the claims of the Holders and of the Indenture Trustee on their
behalf;
and any trustee, receiver, or liquidator, custodian or other similar official
is hereby authorized by each of the Holders to make payments to the Indenture
Trustee, and, in the event that the Indenture Trustee shall consent to the
making of payments directly to the Holders, to pay to the Indenture Trustee
such amounts as shall be sufficient to cover reasonable compensation to the
Indenture Trustee, each predecessor Indenture Trustee and their respective
agents, attorneys and counsel, and all other expenses and liabilities
incurred, and all advances made, by the Indenture Trustee and each predecessor
Indenture Trustee except as a result of negligence or willful misconduct.
Nothing contained herein shall be deemed to authorize the Indenture
Trustee to authorize or consent to or vote for or accept or adopt on behalf of
any Holder any plan of reorganization, arrangement, adjustment or composition
affecting the Certificates or the rights of any Holder thereof, or to
authorize the Indenture Trustee to vote in respect of the claim of any Holder
in any such proceeding except, as aforesaid, to vote for the election of a
trustee in bankruptcy or similar person.
All rights of action and rights to assert claims under this
Indenture, or under any of the Certificates, may be enforced by the Indenture
Trustee without the possession of such Certificates on any trial or other
proceedings instituted by the Indenture Trustee shall be brought in its own
name as trustee of an express trust, and any recovery of judgment, subject to
the payment of the expenses, disbursements and compensation of the Indenture
Trustee, each predecessor Indenture Trustee and their respective agents and
attorneys, shall be for the ratable benefit of the Holders, as provided herein.
In any proceedings brought by the Indenture Trustee (and also any
proceedings involving the interpretation of any provision of this Indenture to
which the Indenture Trustee shall be a party) the Indenture Trustee shall be
held to represent all the Holders of the Certificates, and it shall not be
necessary to make any Holders parties to such proceedings.
Section 7.05. Remedies Cumulative. Each and every right, power and
remedy given to the Indenture Trustee in this Indenture shall be cumulative
and shall be in addition to every other right, power and remedy specifically
given herein or now or hereafter existing at law, in equity or by statute, and
each and every right, power and remedy whether specifically given herein or
otherwise existing may be exercised from time to time and as often and in such
order as may be deemed expedient by the Indenture Trustee or the Holders, and
the exercise or the beginning of the exercise of any power or remedy shall not
be construed to be a waiver of the right to exercise at the same time or later
any other right, power or remedy. No delay or omission by the Indenture
Trustee or of any Holder in the exercise of any right, remedy or power or in
the pursuance of any remedy shall impair any such right, power or remedy or be
construed to be a waiver of any default on the part of the Owner Trustee or
the Lessee or to be an acquiescence in any such default.
Section 7.06. Suits for Enforcement. If an Indenture Event of
Default has occurred, has not been waived and is continuing, the Indenture
Trustee may in its discretion and subject to its rights of appropriate
indemnification under Sections 7.08 and 9.03 and Article XI hereof proceed to
protect and enforce its rights and rights of the Holders by such appropriate
judicial proceedings as the Indenture Trustee shall deem most effectual to
protect and enforce any of such rights, either at law or in equity or in
bankruptcy or otherwise, whether for the specific enforcement of any covenant
or agreement contained in this Indenture or in aid of the exercise of any
power granted in this Indenture or to enforce any other legal or equitable
right vested in the Indenture Trustee or the Holders by this Indenture or by
law; provided, that any sale of any portion of the Trust Indenture Estate
shall be done in accordance with Section 7.03(c) hereof.
Section 7.07. Discontinuance of Proceedings. In case the Indenture
Trustee or any Holder shall have instituted any proceeding to enforce any
right, power or remedy under this Indenture by foreclosure, entry or
otherwise, and such proceeding shall have been discontinued or abandoned for
any reason or shall have been determined adversely to the Indenture Trustee or
such Holder, then the Owner Trustee, the Indenture Trustee, the Owner
Participants, the Holders and the Lessee shall, subject to any binding
determination in such proceeding, be restored to their former positions and
rights under this Indenture with respect to the Trust Indenture Estate, and
all rights, remedies and powers of the Indenture Trustee and the Holders shall
continue as if no such proceeding had been instituted.
Section 7.08. Limitations on Suits by Holders. No Holder of any
Certificate shall have any right by virtue or by availing of any provision of
this Indenture to institute any action or proceeding at law or in equity or in
bankruptcy or otherwise upon or under or with respect to this Indenture, or
for the appointment of a trustee, receiver, liquidator, custodian or other
similar official or for any other remedy hereunder, unless such Holder
previously shall have given to the Indenture Trustee written notice of an
Indenture Event of Default shall then have occurred and be continuing, as
hereinbefore provided, and the Holders of not less than 25% in aggregate
principal amount of Outstanding Certificates shall have made written request
upon the Indenture Trustee to institute such action or proceedings in its own
name as trustee hereunder and shall have offered to the Indenture Trustee such
reasonable indemnity as it may require against the costs, expenses and
liabilities to be incurred therein or thereby and the Indenture Trustee for 60
days after its receipt of such notice, request and offer of indemnity shall
have failed to institute any such action or proceedings and no direction
inconsistent with such written request shall have been given to the Indenture
Trustee pursuant to Section 7.10 hereof; it being understood and intended, and
being expressly covenanted by the Holder of each Certificate with every other
Holder of each other Certificate and the Indenture Trustee, that no one or
more Holders shall have any right in any manner whatever to affect, disturb or
prejudice the rights of any other Holder or the Lien of this Indenture or any
part of the Trust Indenture Estate or to obtain or seek to obtain priority
over or preference to any other such Holder or to enforce any right under this
Indenture, except in the manner provided herein and for the equal, ratable and
common benefit of all Holders. For the protection and enforcement of the
provisions of this Section, each and every Holder and the Indenture Trustee
shall be entitled to such relief as can be given either at law or in equity.
Section 7.09. Unconditional Right of Holders to Receive Principal,
Interest and Make-Whole Premium, and to Institute Certain Suits.
Notwithstanding any other provision in this Indenture and any provision of any
Certificate, the right of any Holder to receive payment of the principal of
and interest and Make-Whole Premium, if any, on such Certificate on or after
the respective due dates and in the manner expressed in such Certificate, or,
subject to Section 7.08 hereof, to institute suit for the enforcement of any
such payment on or after such respective dates as provided herein, shall not
be impaired or affected without the consent of such Holder.
Section 7.10. Control by Holders. The Majority in Interest of
Certificate Holders shall have the right to direct the Indenture Trustee as to
the time, method, and place of conducting any proceeding for any remedy
available to the Indenture Trustee, or exercising any trust or power conferred
on the Indenture Trustee by this Indenture; provided that such direction shall
not be otherwise than in accordance with law and the provisions of this
Indenture and the Indenture Trustee shall have received, to the extent
provided in Sections 7.08 and 9.03 and Article XI hereof, such reasonable
indemnification as it may require against the costs, expenses and liabilities
to be incurred by the Indenture Trustee; and provided further that (subject to
the provisions of Section 9.02 hereof) the Indenture Trustee shall have the
right to decline to follow any such direction if the Indenture Trustee, being
advised by counsel, shall determine that the action or proceeding so directed
may not lawfully be taken or if the Indenture Trustee in good faith by its
board of directors, the executive committee, or a trust committee of directors
or Responsible Officers of the Indenture Trustee shall determine that the
action or proceedings so directed would involve the Indenture Trustee in
personal liability or if the Indenture Trustee in good faith shall so
determine that the actions or forebearances specified in or pursuant to such
direction shall be unduly prejudicial to the interests of Holders not joining
in the giving of said direction, it being understood that (subject to Section
9.02 hereof) the Indenture Trustee shall have no duty to ascertain whether or
not such actions or forebearances are unduly prejudicial to such Holders.
Nothing in this Indenture shall impair the right of the Indenture
Trustee in its discretion to take any action deemed proper by the Indenture
Trustee and which is not inconsistent with the direction by the Majority in
Interest of Certificate Holders.
Section 7.11. Waiver of Past Indenture Default. Upon written
instructions from the Majority in Interest of Certificate Holders, the
Indenture Trustee shall waive any past Indenture Default and its consequences
and upon any such waiver such Indenture Default shall cease to exist and any
Indenture Event of Default arising therefrom shall be deemed to have been
cured for every purpose of this Indenture, but no such waiver shall extend to
any subsequent or other Indenture Default or impair any right consequent
thereon; provided, however, that in the absence of written instructions from
all Holders and each Liquidity Provider, the Indenture Trustee shall not waive
any Indenture Default (a) in the payment of the principal of or Make-Whole
Premium, if any, or interest on, or other amounts due under, any Certificate
then Outstanding, or (b) in respect of a covenant or provision of this
Indenture which, under Article XIII hereof, cannot be modified or amended
without the consent of each Holder.
Section 7.12. Notice of Indenture Default. The Indenture Trustee
shall transmit to the Owner Trustee, the Holders and to the Owner Participants
notice of any Indenture Defaults actually known to a Responsible Officer of
the Indenture Trustee, such notice to be transmitted by mail to the Holders
within 90 days, and to the Owner Trustee and the Owner Participants promptly
after the occurrence thereof, unless such Indenture Default shall have been
cured before the giving of such notice; provided that under no circumstances
shall the Indenture Trustee give such notice to the Holders until the
expiration of a period of 60 days from the occurrence of such Indenture
Default; and provided further that, except in the case of default in the
payment of the principal of or interest on or any other amount due under any
of the Certificates, the Indenture Trustee shall be protected in withholding
such notice to the Holders if and so long as the board of directors, the
executive committee, or a trust committee of directors or trustees and/or
Responsible Officers of the Indenture Trustee in good faith determines that
the withholding of such notice is in the interests of the Holders.
Section 7.13. Waiver of Appraisement, etc.; Laws. The Owner Trustee
covenants (to the extent that it may lawfully do so) that it will not at any
time insist upon, or plead, or in any manner whatsoever claim or take the
benefit or advantage of, any appraisement, valuation, stay, extension or
prepayment law wherever enacted, now or at any time hereafter in force, in
order to prevent or hinder the enforcement of this Indenture or the execution
of any power granted herein to the Indenture Trustee, or the absolute sale of
the Trust Indenture Estate, or any part thereof, or the possession thereof by
any purchaser at any sale under this Article VII; and the Owner Trustee for
itself and all who may claim under it, so far as it or any of them now or
hereafter lawfully may, hereby waives the benefit of all such laws. The Owner
Trustee for itself and all who may claim under it waives, to the extent that
it lawfully may, all right to have the property in the Trust Indenture Estate
marshalled upon any foreclosure hereof, and agrees that any court having
jurisdiction to foreclose this Indenture may order the sale of the Trust
Indenture Estate as an entirety.
If any law referred to in this Section 7.13 and now in force, of
which the Owner Trustee or its successors might take advantage despite this
Section 7.13, shall hereafter be repealed or cease to be in force, such law
shall not thereafter be deemed to constitute any part of the contract herein
contained or to preclude the application of this Section 7.13.
ARTICLE VIII
RIGHTS OF THE OWNER TRUSTEE
AND THE OWNER PARTICIPANTS
Section 8.01. Certain Rights of Owner Trustee and Owner
Participants. (a) Subject to Section 13.01 hereof, without the consent of a
Majority in Interest of Certificate Holders, the respective parties to the
Indenture Documents may not modify, amend or supplement any of said
agreements, or give any consent, waiver, authorization or approval thereunder,
for the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions thereof or of modifying in any manner the
rights of the respective parties thereunder; provided, however, that the
actions specified in subsection (b) of this Section 8.01 may be taken without
the consent of the Indenture Trustee or any Holder.
(b) Subject to the provisions of subsection (c) of this Section
8.01, the respective parties to the Indenture Documents, at any time and from
time to time, without the consent of the Indenture Trustee or of any Holder,
may:
(1) so long as no Indenture Event of Default shall have occurred and
be continuing, modify, amend or supplement the Lease, or give any waiver
with respect thereto, except that without compliance with subsection (a) of
this Section 8.01 the parties to the Lease shall not modify, amend or
supplement, or give any waiver for the purpose of adding any provisions to
or changing in any manner or eliminating any of the provisions thereof or
of modifying in any manner the rights of the respective parties thereunder,
with respect to the following provisions of the Lease as in effect on the
effective date hereof: Article 2 (provided that, if in respect of the
Term, the result thereof would not be to shorten the Term of the Lease to a
period shorter than the period ending with the Maturity of any
Certificate), Section 3.03 (except to the extent such Section relates to
amounts payable (whether directly or pursuant to this Indenture) to Persons
other than Holders, each Liquidity Provider, the Subordination Agent and
the Indenture Trustee in its individual capacity), Section 3.05, Section
3.06 (except insofar as it relates to the address or account information of
the Owner Trustee or the Indenture Trustee) (other than as such Sections
3.03, 3.05 and 3.06 may be amended pursuant to Section 3.04 of the Lease as
in effect on the effective date hereof), Section 5.01, Article 6, Article
10 (except that further restrictions may be imposed on the Lessee), Article
11 (except that additional requirements may be imposed on the Lessee),
Article 13 (except for Section 13.05 and except that additional insurance
requirements may be imposed on the Lessee), Article 14 (except in order to
increase the Lessee's liabilities or enhance the Lessor's rights
thereunder), Article 15 (except in the case of an assignment by the Lessor
in circumstances where the Aircraft shall remain registrable under the
Federal Aviation Act), Section 16.01 (except to impose additional or more
stringent Events of Default), Article 17 (except to impose additional
remedies), Section 19.01 (except to impose additional requirements on the
Lessee), Section 20.01, Article 22, Section 23.01, Section 26.03 and any
definition of terms used in the Lease, to the extent that any modification
of such definition would result in a modification of the Lease not
permitted pursuant to this subsection (b); provided that the parties to the
Lease may take any such action without the consent of the Indenture Trustee
or any Holder to the extent such action relates to the payment of amounts
constituting, or the Owner Trustee's, the Owner Participants' or the
Lessee's rights or obligations with respect to, Excepted Payments (other
than the place, time and manner of payment of Basic Rent constituting an
Excepted Payment);
(2) modify, amend or supplement the Trust Agreement and any other
Indenture Document (other than the Lease and the Participation Agreement),
or give any consent, waiver, authorization or approval with respect
thereto, in each case only to the extent any such action shall not
adversely impact the interests of the Holders;
(3) modify, amend or supplement the Participation Agreement, or give
any consent, waiver, authorization or approval with respect thereto, except
that without compliance with subsection (a) of this Section 8.01 the
parties to the Participation Agreement shall not modify, amend or
supplement, or give any consent, waiver, authorization or approval for the
purpose of adding provisions to or changing in any manner or eliminating
any of the provisions thereof or of modifying in any manner the rights of
the respective parties thereunder, with respect to the following provisions
of the Participation Agreement as in effect on the effective date hereof:
Articles 6, 8 and 9 and Section 10.01(b) (insofar as such Articles 6, 8 and
9 and Section 10.01(b) relate to the Indenture Trustee, the Pass Through
Trustee and the Holders), Article 7 and Sections 3.05, 15.01, 17.02 and
17.11 and any definition of terms used in the Participation Agreement, to
the extent that any modification of such definition would result in a
modification of the Participation Agreement not permitted pursuant to this
subsection (b); and
(4) modify, amend or supplement any of said agreements in order to
cure any ambiguity, to correct or supplement any provisions thereof which
may be defective or inconsistent with any other provision thereof or of any
provision of this Indenture, or to make any other provision with respect to
matters or questions arising thereunder or under this Indenture which shall
not be inconsistent with the provisions of this Indenture, provided the
making of any such other provision shall not adversely affect the interests
of the Holders.
(c) No modification, amendment, supplement, consent, waiver,
authorization or approval with respect to the Lease or the Participation
Agreement, whether effected pursuant to subsection (a) or pursuant to
subsection (b) of this Section 8.01 and anything in such subsections or
elsewhere in this Indenture to the contrary notwithstanding, shall, without
the consent of the Holder of each Outstanding Certificate affected thereby,
and each Liquidity Provider,
(1) modify, amend or supplement the Lease in such a way as to extend
the time of payment of Basic Rent or Supplemental Rent or Stipulated Loss
Value or any other amounts payable to the Indenture Trustee for its own
account or for the account of the Holders (subject in any event to Section
3.05 of the Lease) upon the occurrence of an Event of Loss or Termination
Value and any other amounts payable to the Indenture Trustee for its own
account or for the account of the Holders (subject in any event to Section
3.05 of the Lease) upon termination of the Lease with respect to the
Aircraft payable under, or as provided in, the Lease as in effect on the
effective date hereof, or reduce the amount of any installment of Basic
Rent or Supplemental Rent so that the same is less than the payment of
principal of, and interest on the Certificates and Make-Whole Premium, if
any, and amounts due to each Liquidity Provider as the case may be, to be
made from such installment of Basic Rent or Supplemental Rent, or reduce
the aggregate amount of Stipulated Loss Value, or any other amounts payable
under, or as provided in, the Lease as in effect on the effective date
hereof upon the occurrence of an Event of Loss so that the same is less
than the accrued interest on and the principal as of the Loss Payment Date,
of the Certificates at the time Outstanding or reduce the amount of
Termination Value and any other amounts payable under, or as provided in,
the Lease as in effect on the effective date hereof upon termination of the
Lease with respect to the Aircraft so that the same is less than the
accrued interest on and principal as of the Lease Termination Date and
Make-Whole Premium, if any, of Certificates at the time Outstanding, or
(2) modify, amend or supplement the Lease in such a way as to, or
consent to any assignment of the Lease or give any consent, waiver,
authorization or approval which would, release the Lessee from its absolute
and unconditional obligations in respect of payment of Basic Rent or
Supplemental Rent, or Stipulated Loss Value and any other amounts payable
to the Indenture Trustee for its own account or the account of the Holders
(subject in any event to 3.05 of the Lease) upon the occurrence of an Event
of Loss, or Termination Value and any other amounts payable to the
Indenture Trustee for its own account or the account of the Holders
(subject in any event to 3.05 of the Lease) of the Lease with respect to the
Aircraft, payable under, or as provided in, the Lease as in effect on the
effective date hereof, except for any such assignment pursuant to Section
2.12 hereof, and except as provided in the Lease as in effect on the
effective date hereof.
(d) At all times so long as this Indenture is in effect, the consent
of the Owner Trustee (at the direction of the Owner Participants) shall be
required in order (i) to amend, modify or supplement the Lease or any other
Operative Document to which the Owner Trustee is a party or to waive
compliance by the Lessee with any of its obligations thereunder, (ii) to grant
any consent requested under the Lease and (iii) to exercise discretion on the
Lessee's option to substitute a Replacement Airframe or Replacement Engines
after an Event of Loss pursuant to the Lease.
Notwithstanding the foregoing, but subject always to the provision of Section
15.05 hereof, the Indenture Trustee shall at all times have the right, to the
exclusion of the Owner Trustee and the Owner Participants, to (A) declare the
lease to be in default under Article 17 (other than with respect to Excepted
Payments) thereof and (B) subject only to the provisions of this Indenture
exercise the remedies set forth in such Article 17 of the Lease (other than in
connection with Excepted Payments) and in Article 7 hereof.
Nothing in this Indenture shall be deemed to prohibit the Owner
Participants or the Owner Trustee from making demand on the Lessee for, or
from commencing an action at law to obtain the payment of, or from receiving
payment of, any Excepted Payment; provided, however, that if the Owner Trustee
is proceeding under the Lease, the Owner Trustee shall proceed pursuant to
Section 17.01(a)(v), and only Section 17.01(a)(v), of the Lease.
Section 8.02. Owner Participants' Right to Elect to Prepay or
Purchase the Certificates. (a) If (i) an Event of Default shall have occurred
and be continuing for more than 180 days or the Certificates shall have become
due and payable pursuant to Section 7.02(b) or (c) hereof or (ii) an Event of
Default shall have occurred and be continuing for not more than 180 days and
the Certificates shall not have become due and payable pursuant to Section
7.02(b) or (c) hereof, the Owner Participants (or the Owner Trustee on behalf
of the Owner Participants) may, but shall be under no obligation to, do either
of the following:
(1) direct the Owner Trustee to cause the prepayment of all, but not
less than all, of the Certificates then Outstanding by notifying the
Indenture Trustee of such election, which notice in order to be effective
shall state that it is irrevocable and shall designate a Prepayment Date
which shall be a Business Day and which shall be not less than 30 days
after the date of such notice on which the Owner Trustee shall, in the
manner provided for in Section 6.04 hereof, deposit the sum of amounts
contemplated by paragraph "first" under Section 5.03 and the aggregate
Prepayment Price of all such Certificates with the Indenture Trustee. If
such payment by the Owner Trustee to the Indenture Trustee is made, the
Certificates shall cease to accrue interest from and after the Prepayment
Date, and after distribution of such payment to the Holders, the Indenture
Trustee shall release the Trust Indenture Estate from the Lien of this
Indenture; or
(2) purchase all, but not less than all, of the Outstanding
Certificates by notifying the Indenture Trustee of such election, which
notice in order to be effective shall state that it is irrevocable and
shall designate a date which shall be a Business Day and which shall be not
less than 30 days after the date of such notice on which the Owner Trustee
shall pay to the Indenture Trustee an amount equal to the aggregate unpaid
principal amount of all Outstanding Certificates, together with accrued
interest on such amount to the date of purchase, the aggregate amount of
any Make-Whole Premium applicable to each Outstanding Certificate (if such
purchase occurs prior to the Premium Termination Date for such Outstanding
Certificate) in the case of a purchase pursuant to clause (a)(ii) above,
plus all other sums due any Holder or the Indenture Trustee hereunder or
under the Participation Agreement or the Lease. Upon receipt of the
Indenture Trustee of such amount, each Holder will be deemed, whether or
not Certificates shall have been delivered to the Indenture Trustee on such
date, to have thereupon sold, assigned, transferred and conveyed (and shall
promptly take such actions as the Owner Participants shall reasonably
request to evidence such sale, assignment, transfer and conveyance) to the
Owner Participants (without recourse or warranty of any kind except for its
own acts), all of the right, title and interest of such Holder in and to
the Trust Indenture Estate and this Indenture and all Certificates held by
such Holder and the former Holders shall not be entitled to receive any
interest on the principal amount of such Certificates after the purchase
date, and the Owner Participants shall be deemed to have assumed (and shall
promptly take such actions as any Holder shall reasonably request to
evidence such assumption) all of such Holder's obligations under the
Participation Agreement and this Indenture arising subsequent to such sale.
If the Owner Trustee shall so request, such Holder will comply with all the
provisions of Section 2.06 of this Indenture to enable new Certificates to
be issued to the Owner Participants in such authorized denominations as the
Owner Participants shall request. All charges and expenses required
pursuant to Section 2.06 hereof in connection with the issuance of any such
new Certificates shall be borne by the Owner Participants.
(b) From and after the deposit by the Owner Trustee of the applicable
Prepayment Price or purchase price with the Indenture Trustee pursuant to
Section 8.02(a) hereof, the Owner Trustee shall be entitled to exercise all
remedies of the Indenture Trustee under Article VII hereof as well as of the
Lessor under the Lease.
Section 8.03. Certain Rights of Owner Participants. (a) If (A)
there shall occur an Event of Default under the Lease as a result of the
Lessee's failure to make any payment of an installment of Basic Rent, and (B)
the Owner Trustee shall have paid or caused to be paid on or prior to the date
which is 15 Business Days after such Event of Default all principal and
interest on the Certificates then due (as well as any interest on overdue
principal and (to the extent permitted by applicable law) interest), but not
including any principal or interest becoming due on account of such Event of
Default, then the failure of the Lessee to make the payment of such
installment of Basic Rent or of interest on account of such installment's
being overdue shall not constitute or result in an Indenture Event of Default
under this Indenture and any declaration based solely on the same shall be
deemed to be automatically rescinded. Nothing contained in the preceding
sentence shall be deemed to entitle the Owner Trustee to exercise any rights
and powers or pursue any remedies pursuant to Article 17 of the Lease or
otherwise except as set forth in this Indenture, and except that the Owner
Trustee or the Owner Participants may attempt to recover any amount paid by
it or them under this Indenture by demanding of the Lessee payment of such
amount, or by commencing an action at law against the Lessee for the payment
of such amount or taking appropriate action in a pending action at law against
the Lessee pursuant to Section 17.01(a)(v), but only said Section 17.01(a)(v),
of the Lease. Upon curing any such Event of Default pursuant to this Section
8.03, the Owner Trustee or the Owner Participants, as the case may be, shall,
so long as no Indenture Event of Default shall have occurred and be
continuing, be subrogated on an unsecured basis to all the rights of the
Indenture Trustee under the Lease in respect of the payment giving rise to
such Event of Default, and any right to any interest in respect of the same,
and shall be entitled to any payment of Basic Rent (or interest thereon)
actually made by the Lessee in respect of such cured payment upon receipt by
the Indenture Trustee; provided that no such amount shall be paid to the Owner
Trustee or the Owner Participants until all amounts then due and payable to
each Certificate Holder hereunder and thereunder shall have been paid in full
and no Indenture Event of Default shall have occurred and be continuing.
Notwithstanding anything in this Indenture or the Lease to the contrary, the
Owner Participants and the Owner Trustee collectively, shall not be entitled
to cure more than six (6) Events of Default (no more than three (3) of which
may be consecutive) occasioned by defaults in the payment of Basic Rent.
(b) If (A) there shall occur an Event of Default under the Lease for
any reason other than the Lessee's failure to make any payment of an
installment of Basic Rent and (B) the Owner Trustee shall have taken or caused
to be taken such action necessary to cure and shall have cured such Event of
Default prior to the date which is 15 Business Days after such Event of
Default, then the failure of the Lessee to perform such covenant, condition or
agreement, the observance or performance of which was accomplished by the
Owner Trustee hereunder shall not constitute or result in an Indenture Event
of Default under this Indenture and any declaration based solely on the same
shall be deemed to be automatically rescinded. Nothing contained in the
preceding sentence shall be deemed to entitle the Owner Trustee or the Owner
Participants to exercise any rights and powers or pursue any remedies pursuant
to Article 17 of the Lease or otherwise except as set forth in this Indenture,
and except that the Owner Trustee or the Owner Participants may attempt to
recover any amount paid by it or them in effecting such cure by demanding of
the Lessee payment of such amount, plus any interest due, or by commencing an
action at law against the Lessee for the payment of such amount or taking
appropriate action in a pending action at law against the Lessee pursuant to
Section 17.01(a)(v), but only said Section 17.01(a)(v), of the Lease. Upon
curing any such Event of Default pursuant to this Section 8.03(b), the Owner
Trustee or the Owner Participants, as the case may be, shall be subrogated to
all the rights of the Indenture Trustee under the Lease in respect of the
payment, agreement or covenant giving rise to such Event of Default, and any
right to any interest in respect of the same, and shall be entitled to any
payment or other performance upon receipt by the Indenture Trustee; provided
that no such amount shall be paid to the Owner Trustee or the Owner
Participants until all amounts then due and payable to each Certificate Holder
hereunder and thereunder shall have been paid in full and no Indenture Event
of Default shall have occurred and be continuing.
ARTICLE IX
CONCERNING THE INDENTURE TRUSTEE
Section 9.01. Acceptance of Trusts. The Indenture Trustee hereby
accepts the trusts imposed upon it by this Indenture, and covenants and agrees
to perform the same as expressed herein and agrees to receive and disburse all
moneys constituting part of the Trust Indenture Estate in accordance with the
terms hereof.
Section 9.02. Duties and Responsibilities of the Indenture Trustee;
During an Indenture Event of Default; Prior to an Indenture Event of Default.
(a) The Indenture Trustee, prior to the occurrence of an Indenture Event of
Default and after the curing or waiving of all Indenture Events of Default
which may have occurred, undertakes to perform such duties and only such
duties as are specifically set forth in this Indenture. In case an Indenture
Event of Default has occurred (which has not been cured or waived) the
Indenture Trustee shall exercise such of the rights and powers vested in it by
this Indenture, and use the same degree of care and skill in their exercise,
as a prudent man would exercise or use under the circumstances in the conduct
of his own affairs. No provision of this Indenture shall be construed to
relieve the Indenture Trustee from liability for its own negligent action, its
own negligent failure to act or its own willful misconduct, except that:
(i) prior to the occurrence of an Indenture Event of Default and
after the curing or waiving of all Indenture Events of Default which may have
occurred:
(x) the duties and obligations of the Indenture Trustee shall be
determined solely by the express provisions of this Indenture, and the
Indenture Trustee shall not be liable except for the performance of such
duties and obligations as are specifically set forth in this Indenture, and no
implied covenants or obligations shall be read in to this Indenture against
the Indenture Trustee; and
(y) in the absence of bad faith on the part of the Indenture
Trustee, the Indenture Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed therein, upon any
statements, certificates or opinions furnished to the Indenture Trustee and
conforming to the requirements of this Indenture; but in the case of any such
statements, certificate or opinions which by any provision hereof are
specifically required to be furnished to the Indenture Trustee, the Indenture
Trustee shall be under a duty to examine the same to determine whether or not
they conform to the requirements of this Indenture;
(ii) the Indenture Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer or Responsible Officers
of the Indenture Trustee, unless it shall be proved that the Indenture Trustee
was negligent in ascertaining the pertinent facts; and
(iii) the Indenture Trustee shall not be liable with respect to any
action taken or not taken by it in good faith in accordance with the direction
of the Holders of not less than a majority in aggregate principal amount of
Outstanding Certificates relating to the time, method and place of conducting
any proceeding for any remedy available to the Indenture Trustee, or
exercising any trust or power conferred upon the Indenture Trustee, under this
Indenture.
None of the provisions contained in this Indenture shall require the
Indenture Trustee to expend or risk its own funds or otherwise incur personal
financial liability in the performance of any of its duties or in the exercise
of any of its rights or powers, if the Indenture Trustee shall have determined
in good faith that the repayment of such funds or adequate indemnity against
such liability is not reasonably assured to it.
The Indenture Trustee will execute and the Owner Trustee will file or
cause to be filed such continuation statements with respect to financing
statements relating to the security interest created hereunder in the Trust
Indenture Estate as may be specified from time to time in written instructions
of the Holders of not less than 25% in aggregate principal amount of
Certificates (which instructions may, by their terms, be operative only at a
future date and which shall be accompanied by the execution form of such
continuation statement so to be filed); provided that, notwithstanding the
foregoing, the Indenture Trustee may execute and file or cause to be filed any
financing statement which it from time to time deems appropriate.
(b) If any Event of Default shall have occurred and be continuing
and, after the latest date on which the Owner Trustee may cure such Event of
Default pursuant to Section 8.03 hereof, on request of the Holders of not less
than 25% in aggregate principal amount of Outstanding Certificates and subject
to indemnification, to the extent provided in Sections 7.08 and 9.03 and
Article XI hereof, as it may require against the costs, expenses and
liabilities to be incurred, the Indenture Trustee shall exercise such remedies
under Article 17 of the Lease as shall be specified in such request.
(c) The Indenture Trustee agrees that it will, in its individual
capacity and at its own cost and expense (but without any right of indemnity
in respect of any such cost or expense under Article XI hereof) promptly take
such action as may be necessary duly to discharge all Liens on any part of the
Trust Indenture Estate which result from claims against it in its individual
capacity not related to the administration of the Trust Indenture Estate or
any other transaction pursuant to this Indenture or any document included in
the Trust Indenture Estate.
(d) The Indenture Trustee will execute and deliver to the Lessee for
filing in accordance with Article 18 of the Lease any properly presented
document, instrument or financing or continuation statement specified in any
opinion delivered pursuant to Section 6.03(e) of the Participation Agreement.
The Indenture Trustee may rely on the act of presentation of any such
document, instrument, financing or continuation statement as evidencing the
fact that it is properly prepared and presented, provided that the Indenture
Trustee shall promptly correct any error in any such document, instrument,
financing or continuation statement of which a Responsible Officer of the
Indenture Trustee has actual knowledge.
(e) The Indenture Trustee will furnish to each Holder promptly upon
receipt thereof, duplicates or copies of all reports, notices, requests,
demands, certificates, financial statements and other instruments furnished to
the Indenture Trustee, to the extent that the same shall not have been
otherwise furnished to such Holder pursuant to this Indenture or to the extent
the Indenture Trustee does not reasonably believe that the same shall have
been furnished by the Lessee directly to such Holder.
Section 9.03. Certain Rights of the Indenture Trustee. Subject to
Section 9.02 hereof:
(a) the Indenture Trustee may rely and shall be protected in acting
or refraining from acting upon any resolution, Officer's Certificate or any
other certificate, statement, instrument, opinion, report, notice, request,
consent, order, bond, debenture, note, coupon, security 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, direction, order or demand of the Owner Trustee
mentioned herein shall be sufficiently evidenced by an Officer's
Certificate (unless other evidence in respect thereof be herein
specifically prescribed) upon which the Indenture Trustee may rely to prove
or establish a matter set forth therein;
(c) the Indenture Trustee may consult with counsel and any advice or
Opinion of Counsel shall be full and complete authorization and protection
in respect of any action taken, suffered or omitted to be taken by it
hereunder in good faith and in accordance with such advice or Opinion of
Counsel;
(d) the Indenture Trustee shall be under no obligation to exercise
any of the trusts or powers vested in it by this Indenture at the request,
order or direction of any of the Holders pursuant to the provisions of this
Indenture, unless such Holders shall have offered to the Indenture Trustee
reasonable security or indemnity against the costs, expenses and
liabilities which might be incurred therein or thereby;
(e) the Indenture Trustee shall not be liable for any action taken
or omitted by it in good faith and believed by it to be authorized or
within the discretion, rights or powers conferred upon it by this Indenture;
(f) prior to the occurrence of an Indenture Event of Default
hereunder and after the curing or waiving of all Indenture Events of
Default, the Indenture Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, approval,
appraisal, bond, debenture, note, coupon, security, or other paper or
document unless requested in writing to do so by the Majority in Interest
of Certificate Holders; provided that, if the payment within a reasonable
time to the Indenture Trustee of the costs, expenses or liabilities likely
to be incurred by it in the making of such investigation is, in the opinion
of the Indenture Trustee, not reasonably assured to the Indenture Trustee
by the security afforded to it by the terms of this Indenture, the
Indenture Trustee may require reasonable indemnity against such expenses or
liabilities as a condition to proceeding; the reasonable expenses of every
such examination shall be paid by the Owner Trustee or, if paid by the
Indenture Trustee or any predecessor trustee, shall be repaid by the Owner
Trustee upon demand; and
(g) the Indenture Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
agents or attorneys not regularly in its employ and the Indenture Trustee
shall not be responsible for any misconduct or negligence on the part of
any such agent or attorney appointed with due care by it hereunder.
Section 9.04. Indenture Trustee Not Responsible for Recitals,
Disposition of Certificates or Application of Proceeds Thereof. The Indenture
Trustee assumes no responsibility for the correctness of the recitals
contained herein and in the Certificates, except the Indenture Trustee's
certificates of authentication. The Indenture Trustee makes no
representation as to the validity or sufficiency of this Indenture or of the
Certificates. The Indenture Trustee shall not be accountable for the use or
application by the Owner Trustee of any of the Certificates or of the proceeds
thereof.
Section 9.05. Indenture Trustee and Agents May Hold Certificates;
Collections, etc. The Indenture Trustee or any agent of the Indenture Trustee
in its individual or any other capacity may become the owner or pledgee of
Certificates with the same rights it would have if it were not the Indenture
Trustee or such agent and may otherwise deal with the Owner Trustee and
receive, collect, hold and retain collections from the Owner Trustee with the
same rights it would have if it were not the Indenture Trustee or such agent.
Section 9.06. Moneys Held by Indenture Trustee. Subject to Sections
5.08 hereof and 14.04 hereof, all moneys received by the Indenture Trustee
shall, until used or applied as herein provided, be held in trust for the
purposes for which they were received, but need not be segregated from other
funds except to the extent required by mandatory provisions of law. Neither
the Owner Trustee nor, subject to Section 5.08 hereof, the Indenture Trustee
nor any agent thereof shall be under any liability for interest on any moneys
received by it hereunder.
Section 9.07. Right of Indenture Trustee to Rely on Officer's
Certificate, etc. Subject to Sections 9.02 and 9.03 hereof, whenever in the
administration of the trusts of this Indenture the Indenture Trustee shall
deem it necessary or desirable that a matter be proved or established prior to
taking or suffering or omitting any action hereunder, such matter (unless
other evidence in respect thereof be specifically prescribed herein) may, in
the absence of bad faith on the part of the Indenture Trustee, be deemed to be
conclusively proved and established by an Officer's Certificate delivered to
the Indenture Trustee, and such certificate, in the absence of bad faith on
the part of the Indenture Trustee, shall be full warrant to the Indenture
Trustee for any action taken, suffered or omitted by it under the provisions
of this Indenture upon the faith thereof.
Section 9.08. Replacement Airframes and Replacement Engines. At any
time and from time to time any Airframe or Engine which has been subject to an
Event of Loss and may, or is required to, be replaced under Section 10.03,
11.03 or 11.04 of the Lease by a Replacement Airframe or Replacement Engine,
as the case may be, shall be replaced in accordance with the provisions of
this Section 9.08 and the provisions of said Sections of the Lease, the Owner
Trustee shall, from time to time, direct the Indenture Trustee to execute and
deliver to or as directed in writing by the Owner Trustee an appropriate
instrument releasing such Airframe and/or Engine as appropriate from the Lien
of this Indenture and the Indenture Trustee shall execute and deliver such
instrument as aforesaid without recourse or warranty, but only upon receipt by
or deposit with the Indenture Trustee of the following:
(1) A written request from the Owner Trustee requesting such release
and specifically describing the Airframe and/or Engine(s) to be so released.
(2) A certificate signed by a duly authorized officer of the Lessee
stating the following:
A. With respect to the replacement of any Airframe:
(i) a description of the Airframe subject to the Event of Loss
including the manufacturer, model, FAA registration number (or other
applicable registration information) and manufacturer's serial number;
(ii) a description of the Replacement Airframe, including the
manufacturer, model, FAA registration number (or other applicable
registration information) and manufacturer's serial number;
(iii) that on the date of the Indenture and Security Agreement
Supplement relating to the Replacement Airframe the Owner Trustee
will be the legal owner of and have good and marketable title to such
Replacement Airframe free and clear of all Liens except Liens
permitted under Section 6.01 of the Lease, that such Replacement
Airframe will on such date be in at least as good operating condition
and repair as required by the terms of the Lease, and that such
Replacement Airframe has been or, substantially concurrently with
such replacement, will be duly registered in the name of the Owner
Trustee under the Transportation Code or under the law then
applicable to the registration of the Airframe subject to the Event
of Loss and that an airworthiness certificate has been duly issued
under the Transportation Code (or such other applicable law) with
respect to such Replacement Airframe and that such registration and
certificate is, or will be, in full force and effect, and that the
Lessee will have the full right and authority to use such Replacement
Airframe;
(iv) that the insurance required by Article 13 of the Lease is in
full force and effect with respect to such Replacement Airframe and
all premiums then due thereon have been paid in full;
(v) that the Replacement Airframe is of the same or an improved make
or model as the Airframe requested to be released from this Indenture;
(vi) that the value of the Replacement Airframe as of the date of such
certificate is not less than the value of the Airframe requested to
be released (assuming such Airframe was in the condition and repair
required to be maintained under the Lease);
(vii) that no Event of Default has occurred and is continuing or
would result from the making and granting of the request for release
and the addition of a Replacement Airframe;
(viii) that the release of the Airframe subject to the Event of Loss
will not impair the security of the Indenture in contravention of any
of the provisions of this Indenture;
(ix) that upon such replacement, the Lien of this Indenture will
apply to the Replacement Airframe and such Lien will be a first
priority security interest in favor of the Indenture Trustee; and
(x) that each of the conditions specified in Section 11.03 of the
Lease with respect to such Replacement Airframe has been satisfied.
B. With respect to the replacement of any Engine:
(i) a description of the Engine subject to the Event of Loss
including the manufacturer's serial number;
(ii) a description of the Replacement Engine including the
manufacturer's name, the engine model and serial number;
(iii) that on the date of the Indenture and Security Agreement
Supplement relating to the Replacement Engine the Owner Trustee will
be the legal owner of such Replacement Engine free and clear of all
Liens except Liens permitted under Section 6.01 of the Lease, and
that such Replacement Engine will on such date be in at least as good
operating condition and repair as required by the terms of the Lease;
(iv) that the value of the Replacement Engine as of the date of such
certificate is not less than the value of the Engine to be released
(assuming such Engine was in the condition and repair required to be
maintained under the Lease);
(v) that the release of the Engine subject to the Event of Loss will
not impair the security of the Indenture in contravention of any of
the provisions of this Indenture;
(vi) that upon such replacement, the Lien of this Indenture will
apply to the Replacement Engine; and
(vii) that each of the conditions specified in Section 10.03, 11.03
or 11.04 of the Lease with respect to such Replacement Engine has
been satisfied.
(3) The appropriate instruments (i) transferring to the Owner
Trustee title to the Replacement Airframe or Replacement Engine to be received
as consideration for the Airframe or Engine to be released and (ii) assigning
to the Owner Trustee the benefit of all manufacturer's and vendor's
warranties, if any, generally available with respect to such Replacement
Airframe or Replacement Engine, and an Indenture and Security Agreement
Supplement subjecting such Replacement Airframe or Replacement Engine to the
Trust Agreement and to the Lien of this Indenture.
(4) A certificate from a firm of independent aircraft appraisers of
national standing satisfactory to the Indenture Trustee and the Owner Trustee
confirming the accuracy of the information set forth in clause (2)A.(vi) of
this Section 9.08.
(5) The opinion of Davis Polk & Wardwell, special counsel to the
Lessee, or other counsel reasonably satisfactory to the Indenture Trustee,
stating that:
(i) the certificates, opinions and other instruments and/or property
which have been or are therewith delivered to and deposited with the
Indenture Trustee conform to the requirements of this Indenture and the
Lease and, upon the basis of such application, the property so sold or
disposed of may be properly released from the Lien of this Indenture and
all conditions precedent herein provided for relating to such release have
been complied with; and
(ii) the Replacement Airframe or Replacement Engine has been validly
subjected to the Lien of this Indenture and covered by the Lease, the
instruments subjecting such Replacement Airframe or Replacement Engine to
the Lease and to the Lien of this Indenture, as the case may be, have been
duly filed for recordation pursuant to the Transportation Code or any other
law then applicable to the registration of the Aircraft, and no further
action, filing or recording of any document is necessary or advisable in
order to establish and perfect the title of the Owner Trustee to and the
Lien of this Indenture on such Replacement Airframe or Replacement Engine
and the Indenture Trustee would be entitled to the benefits of Section 1110
of the Bankruptcy Code with respect to such Replacement Airframe or
Replacement Engine, provided, that such opinion need not be to the effect
specified in the foregoing clause to the extent that the benefits of such
Section 1110 would not have been, by reason of a change in law or
governmental interpretation thereof after the date hereof, available to the
Indenture Trustee with respect to the Aircraft immediately prior to such
substitution had such Event of Loss not occurred.
Section 9.09. Indenture and Security Agreement Supplement for
Replacements. In the event of the substitution of a Replacement Airframe or a
Replacement Engine as contemplated by Section 10.03 or Article 11 of the
Lease, the Owner Trustee and the Indenture Trustee agree for the benefit of
the Holders and the Lessee, subject to fulfillment of the conditions precedent
and compliance by the Lessee with its obligations set forth in Section 10.03
or Article 11 of the Lease, to execute and deliver an Indenture and Security
Agreement Supplement as contemplated by Section 9.08(3) hereof and, provided
no Event of Default shall have occurred and be continuing, execute and deliver
to the Lessee an appropriate instrument releasing the Airframe or Engine being
replaced from the Lien of this Indenture.
Section 9.10. Effect of Replacement. In the event of the
substitution of a Replacement Airframe or a Replacement Engine as contemplated
by Section 10.01 or Article 11 of the Lease and Section 9.08 hereof, all
provisions of this Indenture relating to the Airframe or Engine or Engines
being replaced shall be applicable to such Replacement Airframe or Replacement
Engine or Engines with the same force and effect as if such Replacement
Airframe or Replacement Engine or Engines were the same Airframe or engine or
engines, as the case may be, as the Airframe or Engine or Engines being
replaced but for the Event of Loss with respect to the Airframe or Engine or
Engines being replaced.
Section 9.11. Compensation. The Owner Trustee covenants and agrees
to pay, and the Indenture Trustee shall be entitled to receive, reasonable
compensation and payment or reimbursement for its reasonable advances,
expenses and disbursements (including the reasonable compensation and expenses
and disbursements of its counsel, agents and other persons not regularly in
its employ) in connection with its services rendered hereunder or in any way
relating to or arising out of the administration of the Trust Indenture Estate
and shall have a priority claim on the Trust Indenture Estate for the payment
of such compensation, advances, expenses and disbursements to the extent that
such compensation, advances, expenses and disbursements shall not be paid by
the Lessee, and shall have the right to use or apply any moneys held by it
hereunder in the Trust Indenture Estate toward such payments; provided that,
so long as the Lease is in effect, the Indenture Trustee shall not make any
claim for payment under this Section 9.11 against the Owner Trustee without
first making demand on the Lessee for payment of such claim. The Indenture
Trustee agrees that it shall have no right against any Holder, WTC or the
Owner Participants for any fee as compensation for its services as trustee
under this Indenture.
ARTICLE X
CONCERNING THE HOLDERS
Section 10.01. Evidence of Action Taken by Holders. (a) Any
request, demand, authorization, direction, notice, consent, waiver or other
action provided by this Indenture to be given or taken by Holders may be
embodied in and evidenced by one or more instruments of substantially similar
tenor signed by such Holders in person or by an agent duly appointed in
writing, and, except as otherwise expressly provided herein, such action shall
become effective when such instrument or instruments are delivered to the
Indenture Trustee and, if expressly required herein, to the Owner Trustee.
Proof of execution of any instrument or of a writing appointing any such agent
shall be sufficient for any purpose of this Indenture and (subject to Sections
9.02 and 9.03 hereof) conclusive in favor of the Indenture Trustee and the
Owner Trustee, if made in the manner provided in this Article.
(b) For the purpose of determining the Holders entitled to vote or
consent to any direction, waiver or other action of such Holders under Section
7.10 or 7.11 hereof, the Lessee may set a record date for such vote or consent
by specifying such record date in an Officer's Certificate delivered to the
Indenture Trustee. Such record date shall be a date not more than 15 days
prior to the first solicitation of such vote or consent.
Section 10.02. Proof of Execution of Instruments and of Holding of
Certificates. Subject to Sections 9.02 and 9.03 hereof, the execution of any
instrument by a Holder or his agent or proxy may be proved in accordance with
such reasonable rules and regulations as may be prescribed by the Indenture
Trustee. The holding of Certificates shall be proved by the Register or by a
certificate of the Registrar.
Section 10.03. Holders to Be Treated as Owners. Prior to due
presentment for registration of transfer of any Certificate, the Owner
Trustee, the Indenture Trustee, any agent of the Owner Trustee or the
Indenture Trustee, the Paying Agent, if any, the Registrar and the Lessee may
deem and treat the Person in whose name such Certificate shall be registered
upon the Register as the absolute owner of such Certificate (whether or not
such Certificate shall be overdue and notwithstanding any notation of
ownership or other writing thereon) for the purpose of receiving payment of
or on account of the principal of and, subject to the provisions of this
Indenture, interest on such Certificate and for all other purposes; and
neither the Owner Trustee nor the Indenture Trustee (nor any agent of the
Owner Trustee or the Indenture Trustee) nor the Paying Agent, if any, nor the
Registrar nor the Lessee shall be affected by any notice to the contrary. All
such payments so made to any such person, or upon his order, shall be valid,
and, to the extent of the sum or sums so paid, effectual to satisfy and
discharge the liability for moneys payable upon any such Certificate.
Section 10.04. Certificates Owned by Owner Trustee and the Lessee
Deemed Not Outstanding. In determining whether the Holders of the requisite
aggregate principal amount of Certificates have concurred in any direction,
consent or waiver under this Indenture, Certificates which are owned by the
Owner Trustee, the Owner Participants, WTC, the Lessee or by any Affiliate
thereof shall be disregarded and deemed not to be Outstanding for the purpose
of any such determination; provided that for the purpose of determining
whether the Indenture Trustee shall be protected in relying on any such
direction, consent or waiver, only if a Responsible Officer of the Indenture
Trustee has actual knowledge that certain Certificates are so owned by any
person directly or indirectly controlling or controlled by or under direct or
indirect common control with the Owner Trustee, the Owner Participants, WTC
shall such Certificates be so disregarded; and provided further that if all
Certificates which would be deemed Outstanding in the absence of the foregoing
provision are owned by the Owner Trustee or the Owner Participants or by any
Affiliate thereof, then such Certificates shall be deemed Outstanding for the
purpose of any such determination. Certificates so owned which have been
pledged in good faith may be regarded as Outstanding if the pledgee
establishes to the satisfaction of the Indenture Trustee the pledgee's right
so to act with respect to such Certificates and that the pledgee is not the
Owner Trustee, the Owner Participants, WTC or the Lessee or any Person directly
or indirectly controlling or controlled by or under direct or indirect common
control with the Owner Trustee, the Owner Participants, WTC or the Lessee. In
case of a dispute as to such right, the advice of counsel shall be full
protection in respect of any decision made by the Indenture Trustee in
accordance with such advice, unless the Lessee, the Owner Trustee, WTC, or the
Owner Participants are actually named in the Register. Upon request of the
Indenture Trustee, the Owner Trustee, the Owner Participants, WTC and the
Lessee shall furnish to the Indenture Trustee promptly an Officer's
Certificate listing and identifying all Certificates, if any, known by the
Owner Trustee, the Owner Participants, WTC or the Lessee to be owned or held
by or for the account of any of the above-described persons; and, subject to
Sections 9.02 and 9.03 hereof, the Indenture Trustee shall be entitled to
accept such Officer's Certificate as conclusive evidence of the facts set
forth therein and of the fact that all Certificates not listed therein are
outstanding for the purpose of any such determination.
Section 10.05. Right of Revocation of Action Taken. At any time
prior to (but not after) the evidencing to the Indenture Trustee, as provided
in Section 10.01, of the taking of any action by the Holders of the percentage
in aggregate principal amount of the Certificates specified in this Indenture
in connection with such action, any Holder of a Certificate, the serial number
of which is shown by the evidence to be included among the serial numbers of
the Certificates the Holders of which have consented to such action, may, by
filing written notice at the Corporate Trust Department and upon proof of
holding as provided in this Article, revoke such action so far as concerns
such Certificate. Except as aforesaid, any such action taken by the Holder
shall be conclusive and binding upon such Holder and upon all future Holders
and owners of such Certificate and of any Certificates issued in exchange or
substitution therefor, irrespective of whether or not any notation in regard
thereto is made upon any such Certificate or otherwise. Any action taken by
the Holders of the percentage in aggregate principal amount of the
Certificates specified in this Indenture in connection with such action shall
be conclusively binding upon the Owner Trustee, the Indenture Trustee and the
Holders of all the Certificates.
Section 10.06. ERISA. Any Person, other than the Subordination
Agent, who is acquiring the Certificates will be deemed to represent and
warrant that (i) no assets of an employee benefit plan subject to Title I of
ERISA or an individual retirement account or plan subject to Section 4975 of
the Code, or any trust established under any such plan or account, have been
used to acquire or hold any of the Certificates, or (ii) that one or more
administrative or statutory exemptions from the prohibited transaction rules
under Section 406 of ERISA and Section 4975 of the Code applies to its
purchase and holding of the Certificates such that its purchase and holding of
the Certificates will not result in a non-exempt prohibited transaction under
Section 406 of ERISA and Section 4975 of the Code.
ARTICLE XI
INDEMNIFICATION OF INDENTURE
TRUSTEE BY OWNER TRUSTEE
The Owner Trustee, not individually but solely in its capacity as
Owner Trustee under the Trust Agreement, hereby agrees, whether or not any of
the transactions contemplated hereby shall be consummated, to assume liability
for, and does hereby indemnify, protect, save and keep harmless the Indenture
Trustee, in its individual capacity, and its successors, assigns, agents and
servants solely from the Lessor's Estate, with respect to the claims of the
Indenture Trustee for payment or reimbursement under Section 9.11 hereof and
from and against any and all liabilities, obligations, losses, damages,
penalties, taxes (excluding any taxes payable by the Indenture Trustee on or
measured by any compensation received by the Indenture Trustee for its
services under this Indenture), claims, actions, suits, costs, expenses or
disbursements (including legal fees and expenses) of any kind and nature
whatsoever which may be imposed on, incurred by or asserted against the
Indenture Trustee (whether or not also agreed to be indemnified against by any
other person under any other document) in any way relating to or arising out
of this Indenture, or any other Indenture Documents or the enforcement of any
of the terms of any thereof, or in any way relating to or arising out of the
manufacture, purchase, acceptance, nonacceptance, rejection, ownership,
delivery, lease, possession, use, operation, condition, sale, return or other
disposition of the Aircraft or any Engine (including, without limitation,
latent and other defects, whether or not discoverable, and any claim for
patent, trademark or copyright infringement), or in any way relating to or
arising out of the administration of the Trust Indenture Estate or the action
or inaction of the Indenture Trustee hereunder, except only (a) in the case of
willful misconduct or gross negligence of the Indenture Trustee in the
performance of its duties hereunder, (b) as may result from the inaccuracy of
any representation or warranty of the Indenture Trustee in the Participation
Agreement, (c) as otherwise provided in Section 9.02(c) hereof or (d) as
otherwise excluded by the terms of Article 8 or Article 9 of the Participation
Agreement from the Lessee's indemnity to the Indenture Trustee under said
Articles; provided that so long as the Lease is in effect, the Indenture
Trustee shall not make any claim under this Article XI for any claim or
expense indemnified by the Lessee under the Participation Agreement without
first making demand on the Lessee for payment of such claim or expense. The
Indenture Trustee shall be entitled to indemnification, from the Trust
Indenture Estate, for any liability, obligation, loss, damage, penalty, claim,
action, suit, cost, expense or disbursement indemnified against pursuant to
this Article XI to the extent not reimbursed by the Lessee or others, but
without releasing any of them from their respective agreements of
reimbursement; and to secure the same the Indenture Trustee shall have a prior
Lien on the Trust Indenture Estate. The indemnities contained in this Article
XI shall survive the termination of this Indenture and the resignation or
removal of the Indenture Trustee. Upon payment in full by the Owner Trustee
of any indemnity pursuant to this Article XI, the Owner Trustee shall, so long
as no Indenture Event of Default shall have occurred and be continuing, be
subrogated to the rights of the Indenture Trustee, if any, in respect of the
matter as to which the indemnity was paid.
ARTICLE XII
SUCCESSOR TRUSTEES
Section 12.01. Notice of Successor Owner Trustee. In the case of any
appointment of a successor to the Owner Trustee pursuant to the Trust
Agreement or any merger, conversion, consolidation or sale of substantially
all of the corporate trust business of the Owner Trustee pursuant to the Trust
Agreement, the successor Owner Trustee shall give prompt written notice
thereof to the Indenture Trustee.
Section 12.02. Resignation and Removal of Indenture Trustee;
Appointment of Successor. (a) The Indenture Trustee or any successor thereto
may resign at any time without cause by giving at least 30 days' prior written
notice to the Owner Trustee, the Owner Participants, the Lessee and each
Holder, such resignation to be effective upon the acceptance of the
trusteeship by a successor Indenture Trustee. In addition, the Majority in
Interest of the Certificate Holders or the Owner Trustee, with the consent of
the Lessee and the Majority in Interest of the Certificate Holders may at any
time remove the Indenture Trustee without cause by an instrument in writing
delivered to the Lessee, the Owner Trustee, the Owner Participants, and the
Indenture Trustee, and the Indenture Trustee shall promptly notify each Holder
thereof in writing, such removal to be effective upon the acceptance of the
trusteeship by a successor Indenture Trustee. In the case of the resignation
or removal of the Indenture Trustee, the Majority in Interest of the
Certificate Holders, or the Owner Trustee, with the consent of the Lessee and
the Majority in Interest of the Certificate Holders, may appoint a successor
Indenture Trustee by an instrument signed by such Holders. If a successor
Indenture Trustee shall not have been appointed within 30 days after such
notice of resignation or removal, the Indenture Trustee, the Owner Trustee, the
Lessee, the Owner Participants, or any Holder may apply to any court of
competent jurisdiction to appoint a successor Indenture Trustee to act until
such time, if any, as a successor shall have been appointed as provided above.
The successor Indenture Trustee so appointed by such court shall immediately
and without further act be superseded by any successor Indenture Trustee
appointed as provided above.
(b) In case at any time any of the following shall occur:
(i) the Indenture Trustee shall cease to be eligible in accordance
with the provisions of Section 12.03 hereof and shall fail to resign after
written request therefor by the Owner Trustee or by any such Holder; or
(ii) the Indenture Trustee shall become incapable of acting, or shall
be adjudged a bankrupt or insolvent, or a receiver or liquidator of the
Indenture Trustee or of its property shall be appointed, or any public
officer shall take charge or control of the Indenture Trustee or of its
property or affairs for the purpose of rehabilitation, conservation or
liquidation;
then the Owner Trustee may remove the Indenture Trustee and, with the consent
of the Lessee, appoint a successor trustee by written instrument, in
duplicate, executed by a Responsible Officer of the Owner Trustee, one copy of
which instrument shall be delivered to the Indenture Trustee so removed and
one copy to the successor trustee, or, subject to the provisions of Section
7.13 hereof, any Holder who has been a bona fide Holder 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 Indenture Trustee
and the appointment of a successor trustee. Such court may thereupon, after
such notice, if any, as it may deem proper and prescribe, remove the Indenture
Trustee and appoint a successor trustee, which removal and appointment shall
become effective upon acceptance of appointment by the successor trustee as
provided in Section 12.04 hereof. The successor Indenture Trustee so
appointed by such court shall immediately and without further act be
superseded by any successor Indenture Trustee appointed as provided above
within one year from the date of appointment by such court.
Section 12.03. Persons Eligible for Appointment as Indenture
Trustee. There shall at all times be an Indenture Trustee hereunder which
shall be (i)(x) a bank or trust company organized and doing business under the
laws of the United States of America or any state or the District of Columbia
having a combined capital and surplus of at least $100,000,000 or (y) a bank
or trust company whose obligations hereunder are fully guaranteed by a direct
or indirect parent thereof having a combined capital and surplus of at least
$100,000,000 and (ii) a Citizen of the United States authorized under
applicable law to exercise corporate trust powers and subject to supervision of
examination by Federal, state or District of Columbia authority. If such
corporation publishes reports of condition at least annually, pursuant to law
or to the requirements of the aforesaid supervising or examining authority,
then for the purposes of this Section, 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 condition so published. In case at any
time the Indenture Trustee shall cease to be eligible in accordance with the
provisions of this Section, the Indenture Trustee shall resign immediately in
the manner and with the effect specified in Section 12.02 hereof.
Section 12.04. Acceptance of Appointment by Successor Trustee. Any
successor trustee appointed as provided in Section 12.02 hereof shall execute
and deliver to the Owner Trustee, the Lessee, and to its predecessor trustee
an instrument accepting such appointment hereunder, and thereupon the
resignation or removal of the predecessor trustee shall become effective and
such successor trustee, without any further act, deed or conveyance, shall
become vested with all rights, powers, duties and obligations of its
predecessor hereunder, with like effect as if originally named as trustee
herein; but, nevertheless, on the written request of the Owner Trustee or of
the successor trustee, upon payment of its charges then unpaid, the trustee
ceasing to act shall, subject to Section 14.04 hereof, pay over to the
successor trustee all moneys at the time held by it hereunder and shall
execute and deliver an instrument transferring to such successor trustee all
such rights, powers, duties and obligations. Upon request of any such
successor trustee, the Owner Trustee shall execute any and all instruments in
writing for more fully and certainly vesting in and confirming to such
successor trustee all such rights and powers. Any trustee ceasing to act
shall, nevertheless, retain a prior claim upon all property or funds held or
collected by such trustee to secure any amounts then due it pursuant to the
provisions of Article XI hereof.
No successor trustee shall accept appointment as provided in this
Section 12.04 unless at the time of such acceptance such successor trustee
shall be eligible under the provisions of Section 12.03 hereof.
Upon acceptance of appointment by a successor trustee as provided in
this Section 12.04, the successor trustee shall mail notice thereof by
first-class mail to the Holders at their last addresses as they shall appear
in the Register, and shall mail a copy of such notice to the Lessee and the
Owner Trustee. If the acceptance of appointment is substantially
contemporaneous with the resignation, then the notice called for by the
preceding sentence may be combined with the notice called for by Section 12.02
hereof.
Section 12.05. Merger, Conversion, Consolidation or Succession to
Business of Indenture Trustee. Any corporation into which the Indenture
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 Indenture Trustee shall be a party, or any corporation succeeding to
the corporate trust business of the Indenture Trustee, shall be the successor
to the Indenture Trustee hereunder, provided that, anything herein to the
contrary notwithstanding, such corporation shall be eligible under the
provisions of Section 12.03 hereof, without the execution or filing of any
paper or any further act on the part of any of the parties hereto.
In case at the time such successor to the Indenture Trustee shall
succeed to the trusts created by this Indenture any of the Certificates shall
have been authenticated but not delivered, any such successor to the Indenture
Trustee may adopt the certificate of authentication of any predecessor
Indenture Trustee and deliver such Certificates so authenticated; and, in case
at that time any of the Certificates shall not have been authenticated, any
successor to the Indenture Trustee may authenticate such Certificates either
in the name of any predecessor hereunder or in the name of the successor
Indenture Trustee; and in all such cases such certificate shall have the full
force which it is anywhere in the Certificates or in this Indenture provided
that the certificate of the Indenture Trustee shall have; provided, that the
right to adopt the certificate of authentication of any predecessor Indenture
Trustee or to authenticate Certificates in the name of any predecessor
Indenture Trustee shall apply only to its successor or successors by merger,
conversion or consolidation.
Section 12.06. Appointment of Separate Trustees. (a) At any time or
times, for the purpose of meeting any legal requirements of any jurisdiction
in which any part of the Trust Indenture Estate may at the time be located or
in which any action of the Indenture Trustee may be required to be performed
or taken, the Indenture Trustee, by an instrument in writing signed by it, may
appoint one or more individuals or corporations to act as a separate trustee
or separate trustees or co-trustee, acting jointly with the Indenture Trustee,
of all or any part of the Trust Indenture Estate, to the full extent that
local law makes it necessary for such separate trustee or separate trustees or
co-trustee acting jointly with the Indenture Trustee to act.
(b) The Indenture Trustee and, at the request of the Indenture
Trustee, the Owner Trustee, shall execute, acknowledge and deliver all such
instruments as may be required by the legal requirements of any jurisdiction
or by any such separate trustee or separate trustees or co-trustee for the
purpose of more fully confirming such title, rights or duties to such separate
trustee or separate trustees or co-trustee. Upon the acceptance in writing of
such appointment by any such separate trustee or separate trustees or
co-trustee, it, he or they shall be vested with such title to the Trust
Indenture Estate or any part thereof, and with such rights, powers, duties and
obligations, as shall be specified in the instrument of appointment, and such
rights, powers, duties and obligations shall be conferred or imposed upon and
exercised or performed by the Indenture Trustee, or the Indenture Trustee and
such separate trustee or separate trustees or co-trustee jointly with the
Indenture Trustee subject to all the terms of this Indenture, except to the
extent that under any law of any jurisdiction in which any particular act or
acts are to be performed the Indenture Trustee shall be incompetent or
unqualified to perform such act or acts, in which event such rights, powers,
duties and obligations shall be exercised and performed by such separate
trustee or separate trustees or co-trustee, as the case may be. Any separate
trustee or separate trustees or co-trustee may, at any time by an instrument
in writing, constitute the Indenture Trustee its or his attorney-in-fact and
agent with full power and authority to do all acts and things and to exercise
all discretion on its or his behalf and in its or his name. In case any such
separate trustee or co-trustee shall die, become incapable of acting, resign
or be removed, the title to the Trust Indenture Estate and all assets,
property, rights, powers, duties and obligations and duties of such separate
trustee or co-trustee shall, so far as permitted by law, vest in and be
exercised by the Indenture Trustee, without the appointment of a successor to
such separate trustee or co-trustee unless and until a successor is appointed.
(c) All provisions of this Indenture which are for the benefit of
the Indenture Trustee (including without limitation Article XI hereof) shall
extend to and apply to each separate trustee or co-trustee appointed pursuant
to the foregoing provisions of this Section 12.06.
(d) Every additional trustee and separate trustee hereunder shall,
to the extent permitted by law, be appointed and act and the Indenture Trustee
shall act, subject to the following provisions and conditions:
(i) all powers, duties, obligations and rights conferred upon the
Indenture Trustee in respect of the receipt, custody, investment and
payment of moneys shall be exercised solely by the Indenture Trustee;
(ii) all other rights, powers, duties and obligations conferred or
imposed upon the Indenture Trustee shall be conferred or imposed and
exercised or performed by the Indenture Trustee and such additional trustee
or trustees and separate trustee or trustees jointly except to the extent
that under any law of any jurisdiction in which any particular act or acts
are to be performed, the Indenture Trustee shall be incompetent or
unqualified to perform such act or acts, in which event such rights,
powers, duties and obligations (including the holding of title to the Trust
Indenture Estate in any such jurisdiction) shall be exercised and performed
by such additional trustee or trustees or separate trustee or trustees;
(iii) no power hereby given to, or exercisable by, any such additional
trustee or separate trustee shall be exercised hereunder by such additional
trustee or separate trustee except jointly with, or with the consent of,
the Indenture Trustee; and
(iv) no trustee hereunder shall be personally liable by reason of any
act or omission of any other trustee hereunder.
If at any time the Indenture Trustee shall deem it no longer necessary or
prudent in order to conform to any such law, the Indenture Trustee shall
execute and deliver an indenture supplemental hereto and all other instruments
and agreements necessary or proper to remove any additional trustee or
separate trustee.
(e) Any request, approval or consent in writing by the Indenture
Trustee to any additional trustee or separate trustee shall be sufficient
warrant to such additional trustee or separate trustee, as the case may be, to
take such action as may be so requested, approved or consented to.
(f) Notwithstanding any other provision of this Section 12.06, the
powers of any additional trustee or separate trustee shall not exceed those of
the Indenture Trustee hereunder.
ARTICLE XIII
SUPPLEMENTS AND AMENDMENTS TO THIS
TRUST INDENTURE AND OTHER DOCUMENTS
Section 13.01. Supplemental Indentures Without Consent of Holders.
The Owner Trustee (when authorized by the Owner Participants) and the
Indenture Trustee, without consent of the Holders, may enter into an indenture
or indentures supplemental hereto for one or more of the following purposes:
(a) to convey, transfer, assign, mortgage or pledge any property or
assets to the Indenture Trustee as security for the Certificates;
(b) to evidence the succession of another corporation to the Owner
Trustee or successive successions, and the assumption by the successor
corporation of the covenants, agreements and obligations of the Owner
Trustee herein and in the Certificates;
(c) to add to the covenants of the Owner Trustee such further
covenants, restrictions, conditions or provisions as it and the Indenture
Trustee shall consider to be for the protection of the Holders, and to make
the occurrence, or the occurrence and continuance, of a default in any such
additional covenants, restrictions, conditions or provisions an Indenture
Event of Default permitting the enforcement of all or any of the several
remedies provided herein; provided, that in respect of any such additional
covenant, restriction, condition or provision such supplemental indenture
may provide for a particular period of grace after default (which period
may be shorter or longer than that allowed in the case of other defaults)
or may provide for an immediate enforcement upon such an Indenture Event of
Default or may limit the remedies available to the Indenture Trustee upon
such an Indenture Event of Default or may limit the right of not less than
the Majority in Interest of Certificate Holders to waive such an Indenture
Event of Default;
(d) to surrender any right or power conferred herein upon the Owner
Trustee or the Owner Participants;
(e) to cure any ambiguity or to correct or supplement any provision
contained herein or in any supplemental indenture which may be defective or
inconsistent with any other provision contained herein or in any
supplemental indenture; or to make such other provisions in regard to
matters or questions arising under this Indenture or under any supplemental
indenture as the Owner Trustee may deem necessary or desirable and which
shall not adversely affect the interests of the Holders;
(f) to correct or amplify the description of any property at any
time subject to the Lien of this Indenture or better to assure, convey and
confirm unto the Indenture Trustee any property subject or required to be
subject to the Lien of this Indenture or to subject Replacement Airframe or
Replacement Engines to the Lien of this Indenture in accordance with the
provisions hereof or with the Lease or to release from the Lien of this
Indenture property that has been substituted on or removed from the
Aircraft as contemplated in Section 3.07 hereof; provided that supplements
to this Indenture entered into for the purpose of subjecting Replacement
Airframe or Replacement Engines to the Lien of this Indenture need only be
executed by the Owner Trustee and the Indenture Trustee;
(g) to provide for the issuance under this Indenture of Certificates
in coupon form (including Certificates registrable as to principal only)
and to provide for exchangeability of such Certificates with Certificates
issued hereunder in fully registered form, and to make all appropriate
changes for such purpose;
(h) to effect the re-registration of the Aircraft pursuant to
Section 6.03(b) of the Participation Agreement; and
(i) to add, eliminate or change any provision hereunder so long as
such action shall not adversely affect the interests of the Holders.
The Indenture Trustee is hereby authorized to join in the execution
of any such supplemental indenture, to make any further appropriate agreements
and stipulations which may be contained therein and to accept the conveyance,
transfer, assignment, mortgage or pledge of any property thereunder, but the
Indenture Trustee shall not be obligated to enter into any such supplemental
indenture which adversely affects the Indenture Trustee's own rights, duties
or immunities under this Indenture or otherwise.
Any such supplemental indenture may be executed without the consent of
the Holders of Outstanding Certificates, notwithstanding any of the provisions
of Section 13.02 hereof.
Section 13.02. Supplemental Indentures With Consent of Holders.
With the consent (evidenced as provided in Article X) of the Majority in
Interest of Certificate Holders, the Owner Trustee (when authorized by the
Owner Participants) and the Indenture Trustee may, from time to time and at
any time, enter into an indenture or indentures supplemental hereto for the
purpose of adding any provisions to or changing in any manner or eliminating
any of the provisions of this Indenture or of any supplemental indenture or of
modifying in any manner the rights of the Holders; provided, however, that,
without the consent of each Holder and each Liquidity Provider, no such
amendment of or supplement to this Indenture or any indenture supplemental
hereto, or modification of the terms of, or consent under, any thereof, shall
(a) modify any of the provisions of Section 7.11 hereof or this Section 13.02,
(b) reduce the amount or extend the time of payment of any amount owing or
payable under any Certificate or reduce the interest payable on any
Certificate (except that only the consent of the Holder shall be required for
any decrease in any amounts of or the rate of interest payable on such
Certificate or any extension for the time of payment of any amount payable
under such Certificate), or alter or modify the provisions of Article V hereof
with respect to the order of priorities in which distributions thereunder shall
be made as among Holders of different Series of Certificates or as between the
Holder and the Owner Trustee or the Owner Participants or with respect to the
amount or time of payment of any such distribution, or alter or modify the
circumstances under which a Make-Whole Premium shall be payable, or alter the
currency in which any amount payable under any Certificate is to be paid, or
impair the right of any Holder to commence legal proceedings to enforce a
right to receive payment hereunder, (c) reduce, modify or amend any
indemnities in favor of any Holder or in favor of or to be paid by the Owner
Participants (except as consented to by each Person adversely affected
thereby), or (d) create or permit the creation of any Lien on the Trust
Indenture Estate or any part thereof prior to or pari passu with the Lien of
this Indenture, except as expressly permitted herein, or deprive any Holder of
the benefit of the Lien of this Indenture on the Trust Indenture Estate,
except as provided in Section 7.02 hereof or in connection with the exercise
of remedies under Article VII. This Section 13.02 shall not apply to any
indenture or indentures supplemental hereto permitted by, and complying with
the terms of, Section 13.06 hereof.
Upon the request of the Owner Trustee (at the direction of the Owner
Participants) and upon the filing with the Indenture Trustee of evidence of
the consent of Holders and other documents, if any, required by Section 10.01,
the Indenture Trustee shall join with the Owner Trustee and the Lessee in the
execution of such supplemental indenture unless such supplemental indenture
affects the Indenture Trustee's own rights, duties or immunities under this
Indenture or otherwise, in which case the Indenture Trustee may in its
discretion, but shall not be obligated to, enter into such supplemental
indenture.
It shall not be necessary for the consent of the Holders under this
Section to approve the particular form of any proposed supplemental indenture,
but it shall be sufficient if such consent shall approve the substance
thereof.
Promptly after the execution by the Owner Trustee, the Indenture
Trustee and the Lessee of any supplemental indenture pursuant to the
provisions of this Section, the Indenture Trustee shall mail a notice thereof
by first-class mail to the Holders at their addresses as they shall appear on
the registry books of the Registrar, setting forth in general terms the
substance of such supplemental indenture. Any failure of the Indenture
Trustee to mail such notice, or any defect therein, shall not, however, in any
way impair or affect the validity of any such supplemental indenture.
Section 13.03. Effect of Supplemental Indenture. Upon the execution
of any supplemental indenture pursuant to the provisions hereof, this
Indenture shall be and be deemed to be modified and amended in accordance
therewith and the respective rights, limitations of rights, obligations,
duties and immunities under this Indenture of the Indenture Trustee, the Owner
Trustee, the Lessee and the Holders shall thereafter be determined, exercised
and enforced hereunder subject in all respects to such modifications and
amendments, and all the terms and conditions of any such supplemental
indenture shall be and be deemed to be part of the terms and conditions of
this Indenture for any and all purposes.
Section 13.04. Documents to Be Given to Indenture Trustee. The
Indenture Trustee, subject to the provisions of Sections 9.02 and 9.03, may
receive an Officer's Certificate and an Opinion of Counsel as conclusive
evidence that any such supplemental indenture complies with the applicable
provisions of this Indenture.
Section 13.05. Notation on Certificates in Respect of Supplemental
Indentures. Certificates authenticated and delivered after the execution of
any supplemental indenture pursuant to the provisions of this Article may bear
a notation in form approved by the Indenture Trustee as to any matter provided
for by such supplemental indenture. If the Owner Trustee or the Indenture
Trustee shall so determine, new Certificates so modified as to conform, in the
opinion of the Owner Trustee and the Indenture Trustee, to any modification of
this Indenture contained in any such supplemental indenture may be prepared by
the Owner Trustee, authenticated by the Indenture Trustee and delivered in
exchange for the Outstanding Certificates.
Section 13.06. No Request Necessary for Lease Supplement or Indenture
and Security Agreement Supplement. Notwithstanding anything contained in
Section 13.02 hereof, no written request or consent of the Indenture Trustee,
any Holder or the Owner Participants pursuant to Section 13.02 hereof shall be
required to enable the Owner Trustee to enter into any supplement to the Lease
with the Lessee pursuant to the terms of the Lease to subject a Replacement
Airframe or Replacement Engine thereto or to execute and deliver an Indenture
and Security Agreement Supplement pursuant to the terms hereof.
Section 13.07. Notices to Liquidity Providers. Any request made to
any Holder for consent to any amendment, supplement or waiver pursuant to
Section 7.11, 8.01 or this Article XIII shall be promptly furnished by the
Indenture Trustee to each Liquidity Provider.
ARTICLE XIV
SATISFACTION AND DISCHARGE OF INDENTURE;
UNCLAIMED MONEYS
Section 14.01. Satisfaction and Discharge of Indenture; Termination
of Indenture. If at any time after (a) the Owner Trustee shall have paid or
caused to be paid the principal of and interest on all the Certificates
outstanding hereunder, as and when the same shall have become due and payable,
or (b) the Owner Trustee shall have delivered to the Indenture Trustee for
cancellation all Certificates theretofore authenticated (other than any
Certificates which shall have been destroyed, lost or stolen and which shall
have been replaced or paid as provided in Section 2.07 hereof) or (c) (i) all
such Certificates not theretofore delivered to the Indenture Trustee for
cancellation shall have become due and payable, or are by their terms to
become due and payable within one year or are to be called for prepayment
within one year under arrangements satisfactory to the Indenture Trustee for
the giving of notice of prepayment by the Indenture Trustee in the name and at
the expense of the Owner Trustee, and (ii) the Owner Trustee shall have
irrevocably deposited or caused to be deposited with the Indenture Trustee as
trust funds the entire amount in cash (other than moneys repaid by the
Indenture Trustee or any paying agent to the Owner Trustee in accordance with
Section 14.04 hereof) or Government obligations maturing as to principal and
interest in such amounts and at such times as will insure the availability of
cash sufficient to pay at maturity all such Certificates not theretofore
delivered to the Indenture Trustee for cancellation, including principal and
interest due or to become due to such date of maturity as the case may be, and
if, in any such case, the Owner Trustee shall also pay or cause to be paid all
other sums then payable hereunder by the Owner Trustee, then this Indenture
shall cease to be of further effect (except as to (A) rights of registration
of transfer and exchange, and the Owner Trustee's right of optional prepayment
pursuant to Section 6.02(a)(ii) hereof, (B) substitution of mutilated,
defaced, destroyed, lost or stolen Certificates, (C) rights of Holders to
receive payments of principal thereof and interest thereon, upon the original
stated due dates therefor (but not upon acceleration), (D) the rights,
obligations, indemnities and immunities of the Indenture Trustee hereunder and
(E) the rights of the Holders as beneficiaries hereof with respect to the
property so deposited with the Indenture Trustee payable to all or any of
them), and the Indenture Trustee, on demand of the Owner Trustee accompanied
by an Officer's Certificate and an Opinion of Counsel (covering such matters
reasonably requested by, and in form and substance reasonably satisfactory to,
the Indenture Trustee) and at the cost and expense of the Owner Trustee, shall
execute proper instruments acknowledging such satisfaction of and discharging
this Indenture. The Owner Trustee agrees to reimburse and indemnify the
Indenture Trustee for any costs or expenses thereafter reasonably and properly
incurred and to compensate the Indenture Trustee for any services thereafter
reasonably and properly rendered by the Indenture Trustee in connection with
this Indenture or the Certificates.
Upon (or at any time after) payment in full to the Indenture Trustee,
as trust funds, of the principal of and interest on and Make-Whole Premium, if
any, and all other amounts due hereunder and under all Certificates and
provided that there shall then be no other amounts due to the Indenture
Trustee hereunder or under the Participation Agreement or otherwise secured
hereby, the Owner Trustee shall direct the Indenture Trustee to execute and
deliver to or as directed in writing by the Owner Trustee an appropriate
instrument releasing the Aircraft from the Lien of this Indenture and
releasing the Indenture Documents from the assignment thereof hereunder, and
the Indenture Trustee shall execute and deliver such instrument as aforesaid
and, at the Owner Trustee's expense, will execute and deliver such other
instruments or documents as may be reasonably requested by the Owner Trustee
to give effect to such release; provided, however, that this Indenture and the
trusts created hereby shall terminate earlier and this Indenture shall be of
no further force or effect upon any sale or other final disposition by the
Indenture Trustee of all property forming a part of the Trust Indenture Estate
and the final distribution by the Indenture Trustee of all moneys or other
property or proceeds constituting part of the Trust Indenture Estate in
accordance with the terms hereof. Except as aforesaid otherwise provided, this
Indenture and the trusts created hereby shall continue in full force and
effect in accordance with the terms hereof.
Section 14.02. Application by Indenture Trustee of Funds Deposited
for Payment of Certificates. Subject to Section 14.04 hereof, all moneys
deposited with the Indenture Trustee pursuant to Section 14.01 hereof shall be
held in trust and applied by it to the prompt payment, either directly or
through any Paying Agent, to the Holders of the particular Certificates for
the payment or prepayment of which such moneys have been deposited with the
Indenture Trustee, of all sums due and to become due thereon for principal,
interest and Make-Whole Premium, if any, but such money need not be segregated
from other funds except to the extent required by law.
Section 14.03. Repayment of Moneys Held by Paying Agent. Upon the
satisfaction and discharge of this Indenture all moneys then held by any
Paying Agent under the provisions of this Indenture shall, upon demand of the
Owner Trustee, be repaid to it or paid to the Indenture Trustee and thereupon
such Paying Agent shall be released from all further liability with respect to
such moneys.
Section 14.04. Transfer of Moneys Held by Indenture Trustee and
Paying Agent Unclaimed for Two Years and Eleven Months. Any moneys deposited
with or paid to the Indenture Trustee or any Paying Agent for the payment of
the principal of or interest or Make-Whole Premium on any Certificate and not
applied but remaining unclaimed for two years and eleven months after the date
upon which such principal, interest or Make-Whole Premium shall have become
due and payable, shall, unless otherwise required by mandatory provisions of
applicable escheat or abandoned or unclaimed property law, be paid to the
Owner Trustee (or, if the Trust Agreement shall no longer be in effect, to the
Owner Participants) by the Indenture Trustee or such Paying Agent and the
Holder of such Certificate, as a general unsecured creditor, shall, unless
otherwise required by mandatory provisions of applicable escheat or abandoned
or unclaimed property laws, thereafter look only to the Owner Trustee (or the
Owner Participants) for any payment which such Holder may be entitled to
collect, and all liability of the Indenture Trustee, or any Paying Agent with
respect to such moneys shall thereupon cease.
ARTICLE XV
MISCELLANEOUS
Section 15.01. Capacity in Which Acting. Each of WTC (or its
permitted successors or assigns) and the Indenture Trustee acts hereunder not
in its individual capacity but solely as trustee except as expressly provided
herein and in the other Operative Documents, and, in the case of WTC (or its
permitted successors or assigns), in the Trust Agreement.
Section 15.02. No Legal Title to Trust Indenture Estate in Holders.
No Holder shall have legal title to any part of the Trust Indenture Estate.
No transfer, by operation of law or otherwise, of any Certificate or other
right, title and interest of any Holder in and to the Trust Indenture Estate
or hereunder shall operate to terminate this Indenture or entitle such Holder
or any successor or transferee of such Holder to an accounting or to the
transfer to it of legal title to any part of the Trust Indenture Estate.
Section 15.03. Sale of Trust Indenture Estate by Indenture Trustee
is Binding. Any sale or other conveyance of all or any part of the Trust
Indenture Estate by the Indenture Trustee made pursuant to the terms of this
Indenture or of the Lease shall bind the Lessee, the Owner Trustee, the
Holders and the Owner Participants and shall be effective to transfer or
convey all right, title and interest of the Indenture Trustee, the Owner
Trustee, the Owner Participants and such Holders therein and thereto. No
purchaser or other grantee shall be required to inquire as to the
authorization, necessity, expediency or regularity of such sale or conveyance
or as to the application of any sale or other proceeds with respect thereto by
the Indenture Trustee.
Section 15.04. Indenture for Benefit of Owner Trustee, Indenture
Trustee, Owner Participants, Holders and Liquidity Providers. Nothing in
this Indenture, whether express or implied, shall be construed to give to any
person other than WTC, the Owner Trustee, the Lessee, the Indenture Trustee,
as trustee and in its individual capacity, the Owner Participants, each
Liquidity Provider and the Holders any legal or equitable right, remedy or
claim under or in respect of this Indenture.
Section 15.05. No Action Contrary to the Lessee's Rights Under the
Lease. Notwithstanding any of the provisions of this Indenture or the Trust
Agreement to the contrary, so long as no Event of Default shall have occurred
and be continuing, neither the Indenture Trustee nor the Owner Trustee will
take any affirmative acts that interfere with the peaceful and quiet
possession and enjoyment of the Aircraft by the Lessee.
Section 15.06. Notices. Unless otherwise expressly specified or
permitted by the terms hereof, all notices, requests, demands, authorizations,
directions, consents, waivers or documents provided or permitted by this
Indenture to be made, given, furnished or filed shall be in writing, mailed by
certified mail, postage prepaid, or by confirmed telecopy, and (a) if to the
Owner Trustee, addressed to it at its office at 1100 North Market Street,
Rodney Square North, Wilmington, Delaware 19890-0001 (telephone: (302)
651-1000, facsimile: (302) 651-8882), Attention: Corporate Trust
Administration (with a copy to the Owner Participant at the address provided
for notice pursuant to Section 14.01 of the Participation Agreement), (b) if
personally delivered to the Indenture Trustee, addressed to it at its office
at 79 South Main Street, Salt Lake City, Utah 84111 (telephone: (801)
246-5630, facsimile: (801) 246-5053), Attention: Corporate Trust Department
or (c) if to the Owner Participant, a Liquidity Provider or the Lessee,
addressed to such party at such address as such party shall have furnished by
notice to the Owner Trustee and the Indenture Trustee, or, until an address is
so furnished, addressed to the address of such party if any, set forth in
Section 14.01 of the Participation Agreement. Any party hereto may change the
address to which notices to such party will be sent by giving notice of such
change to the other parties to this Indenture.
Where this Indenture provides for notice to Holders, such notice
shall be sufficiently given (unless otherwise expressly provided herein) if in
writing and mailed, first-class postage prepaid, to each Holder entitled
thereto, at such Holder's last address as it appears in the Register. In any
case where notice to Holders is given by mail, neither the failure to mail
such notice, nor any defect in any notice so mailed, to any particular Holder
shall affect the sufficiency of such notice with respect to other Holders.
Where this Indenture provides for notice in any manner, such notice may be
waived in writing by the person entitled to receive such notice, either before
or after the event, and such waiver shall be the equivalent of such notice.
Waivers of notice by Holders shall be filed with the Indenture Trustee, but
such filing shall not be a condition precedent to the validity of any action
taken in reliance upon such waiver.
In case, by reason of the suspension of or irregularities in regular
mail service, it shall be impracticable to mail notice to the Owner Trustee
and Holders when such notice is required to be given pursuant to any provision
of this Indenture, then any manner of giving such notice as shall be
satisfactory to the Indenture Trustee shall be deemed to be a sufficient
giving of such notice.
Section 15.07. Officer's Certificates and Opinions of Counsel;
Statements to Be Contained Therein. Upon any application or demand by the
Lessee or the Owner Trustee to the Indenture Trustee to take any action under
any of the provisions of this Indenture, the Lessee or the Owner Trustee, as
the case may be, shall furnish to the Indenture Trustee upon request (a) an
Officer's Certificate stating that all conditions precedent provided for in
this Indenture relating to the proposed action have been complied with and
that the proposed action is in conformity with the requirements of this
Indenture, and (b) 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 demand as to which the furnishing
of such documents is specifically required by any provision of this Indenture
relating to such particular application or demand, no additional certificate
or opinion need be furnished.
Any certificate, statement or opinion of an officer of WTC may be
based, insofar as it relates to legal matters, upon a certificate or opinion
of or representations by counsel, unless such officer knows that the
certificate or opinion or representations with respect to the matters upon
which his certificate, statement or opinion may be based as aforesaid are
erroneous, or in the exercise of reasonable care should know that the same are
erroneous. Any certificate, statement or opinion of counsel may be based,
insofar as it relates to factual matters information with respect to which is
in the possession of the Lessee or WTC, upon the certificate, statement or
opinion of or representations by an officer or officers of the Lessee or WTC,
as the case may be, unless such counsel knows that the certificate, statement
or opinion or representations with respect to the matters upon which his
certificate, statement or opinion may be based as aforesaid are erroneous, or
in the exercise of reasonable care should know that the same are erroneous.
Any certificate, statement or opinion of an officer of the Lessee or
WTC or of counsel thereto may be based, insofar as it relates to accounting
matters, upon a certificate or opinion of or representations by an accountant
or firm of accountants employed by the Lessee or the Owner Trustee, as the
case may be, unless such officer or counsel, as the case may be, knows that
the certificate or opinion or representations with respect to the accounting
matters upon which his certificate, statement or opinion may be based as
aforesaid are erroneous, or in the exercise of reasonable care should know
that the same are erroneous.
Any certificate or opinion of any independent firm of public
accountants filed with the Indenture Trustee shall contain a statement that
such firm is independent.
Section 15.08. Severability. Any provision of this Indenture which
is prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and any
such prohibition or unenforceability in any jurisdiction shall not invalidate
or render unenforceable such provision in any other jurisdiction.
Section 15.09. No Oral Modifications or Continuing Waivers. No
terms or provisions of this Indenture or the Certificates may be changed,
waived, discharged or terminated orally, but only by an instrument in writing
signed by the party or other person against whom enforcement of the change,
waiver, discharge or termination is sought; and any waiver of the terms hereof
or of any Certificate shall be effective only in the specific instance and for
the specific purpose given.
Section 15.10. Successors and Assigns. All covenants and agreements
contained herein shall be binding upon, and inure to the benefit of, each of
the parties hereto and the successors and permitted assigns of each, all as
herein provided. Any request, notice, direction, consent, waiver or other
instrument or action by any Holder shall bind the successors and assigns of
such Holder. This Indenture and the Trust Indenture Estate shall not be
affected by any amendment or supplement to the Trust Agreement or by any other
action taken under or in respect of the Trust Agreement, except that each
reference in this Indenture to the Trust Agreement shall mean the Trust
Agreement as amended and supplemented from time to time to the extent
permitted hereby and thereby.
Section 15.11. Headings. The headings of the various Articles and
Sections herein and in the table of contents hereto are for the convenience of
reference only and shall not define or limit any of the terms or provisions
hereof.
Section 15.12. Normal Commercial Relations. Anything contained in
this Indenture to the contrary notwithstanding, the Owner Participants, the
Indenture Trustee and any Holder, or any bank or other affiliate of any such
party, may conduct any banking or other financial transactions, and have
banking or other commercial relationships, with the Lessee fully to the same
extent as if this Indenture were not in effect, including without limitation
the making of loans or other extensions of credit to the Lessee for any
purpose whatsoever, whether related to any of the transactions contemplated
hereby or otherwise.
Section 15.13. Governing Law; Counterparts. THIS INDENTURE AND
EACH CERTIFICATE SHALL IN ALL RESPECTS BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK, INCLUDING ALL MATTERS OF
CONSTRUCTION, VALIDITY AND PERFORMANCE. This Indenture may be executed by the
parties hereto in separate counterparts, each of which when so executed and
delivered shall be an original, but all such counterparts shall together
constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed this 28th day of May, 1997 by their respective officers
thereunto duly authorized and acknowledge that this Indenture has been made
and delivered in the City of New York, and this Indenture shall be effective
only upon such execution and delivery.
WILMINGTON TRUST COMPANY,
not in its individual capacity,
except as specifically set forth herein
but solely as Owner Trustee
By______________________________________
Name: Donald G. MacKelcan
Title: Assistant Vice President
FIRST SECURITY BANK, NATIONAL ASSOCIATION,
not in its individual capacity,
but solely as Indenture Trustee
By______________________________________
Name: Greg A. Hawley
Title: Vice President
Exhibit A
to
Trust Indenture and Security Agreement
Indenture and Security Agreement Supplement No. ___
Indenture and Security Agreement Supplement No. ___ (Federal Express
Corporation Trust No. N581FE) dated ________, ____, of WILMINGTON TRUST
COMPANY, a Delaware banking corporation, not in its individual capacity but
solely as owner trustee (herein called the "Owner Trustee") under the Trust
Agreement dated as of May 1, 1997 (the "Trust Agreement") between Wilmington
Trust Company and the Owner Participants named therein.
W I T N E S S E T H :
WHEREAS, the Trust Agreement provides for the execution and delivery
of this Indenture and Security Agreement Supplement which shall particularly
describe the Aircraft and any Replacement Airframe or Replacement Engine
included in the property covered by the Trust Agreement.
WHEREAS, the Trust Indenture and Security Agreement (Federal Express
Corporation Trust No. N581FE) dated as of May 1, 1997 (the "Indenture") between
the Owner Trustee and First Security Bank, National Association (herein called
the "Indenture Trustee") provides for the execution and delivery of an
Indenture and Security Agreement Supplement substantially in the form of this
Indenture and Security Agreement Supplement No. __, which Supplement shall
particularly describe the Aircraft included in the Trust Indenture Estate, and
shall specifically mortgage such Aircraft to the Indenture Trustee.
(1)WHEREAS, the Indenture relates to the Aircraft and the Engines
described in the following paragraph and a counterpart of the Indenture is
attached to and made a part of this Indenture and Security Agreement
Supplement No. 1, and this Indenture and Security Agreement Supplement No. 1,
together with such attachment, is being filed for recordation on or promptly
after the date of this Supplement No. 1 with the Federal Aviation
Administration as one document.
(2)Whereas, the Indenture and Indenture and Security Agreement
Supplement No. ___ dated _________________, ______ (the Indenture being
attached to and made a part of such Indenture and Security Agreement
Supplement and filed therewith) have been duly recorded pursuant to Subtitle
VII of Title 49 of the United States Code, on ____________, _____, as one
document and have been assigned Conveyance No. _________.
NOW, THEREFORE, this Supplement witnesseth, that, to secure the prompt
payment of the principal of and Make-Whole Premium, if any, and interest on,
and all other amounts due with respect to, all Outstanding Certificates under
the Indenture and all other amounts due hereunder and the performance and
observance by the Owner Trustee of all the agreements, covenants and
provisions for the benefit of the Holders contained in the Indenture, in the
Lease, in the Participation Agreement and the Certificates, and the prompt
payment of any and all amounts from time to time owing under the Participation
Agreement by the Owner Trustee, the Owner Participants or the Lessee to the
Holders and for the uses and purposes and subject to the terms and provisions
of the Indenture and the Certificates, and in consideration of the premises
and of the covenants contained in the Indenture, and of the purchase of the
Certificates by the Holders, and of the sum of $1 paid to the Owner Trustee by
the Indenture Trustee at or before the delivery of the Indenture, the receipt
of which is hereby acknowledged, the Owner Trustee has granted, bargained,
sold, assigned, transferred, conveyed, mortgaged, pledged, granted a security
interest in, and confirmed, and does hereby grant, bargain, sell, assign,
transfer, convey, mortgage, pledge, grant a security interest in, and confirm,
unto the Indenture Trustee, its successors and assigns, in trust for the equal
and ratable security and benefit of the Holders, in the trust created by the
Indenture, and subject to all of the terms, conditions, provisions and
limitations set forth in the Indenture, a first priority security interest in
and mortgage lien on all estate, right, title and interest of the Owner Trustee
in, to and under the following described property:
Airframe
One (1) Airframe identified as follows:
FAA Manufacturer's
Registration Serial
Manufacturer Model Number Number
- ------------ ----- ------------ --------------
- ----------
(1) This recital is to be included only in the first Indenture Supplement.
(2) This recital is not to be included in the first Indenture Supplement.
together with all appliances, equipment, instruments and accessories
(including, without limitation, radio and radar) from time to time belonging
thereto, owned by the Owner Trustee and installed in or appurtenant to said
aircraft.
AIRCRAFT ENGINES
Two (2) aircraft engines, each such engine having 750 or more rated takeoff
horsepower or the equivalent thereof, identified as follows:
Manufacturer's
Serial
Manufacturer Model Number
- ------------ ----- --------------
together with all equipment and accessories belonging thereto, by whomsoever
manufactured, owned by the Owner Trustee and installed in or appurtenant to
said aircraft engines.
Together with all substitutions, replacements and renewals of the
property described above, and all property which shall hereafter become
physically attached to or incorporated in the property described above,
whether the same are now owned by the Owner Trustee or shall hereafter be
acquired by it.
As further security for the obligations referred to above and secured
by the Indenture and hereby, the Owner Trustee has granted, bargained, sold,
assigned, transferred, conveyed, mortgaged, pledged and confirmed, and does
hereby grant, bargain, sell, assign, transfer, convey, mortgage, pledge and
confirm, unto the Indenture Trustee, its successors and assigns, for the
security and benefit of the Holders, in the trust created by the Indenture,
and subject to all of the terms, conditions, provisions and limitations set
forth in the Indenture, all of the estate, right, title and interest of the
Owner Trustee in, to and under the Lease Supplement (other than Excepted
Payments, if any) covering the property described above.
TO HAVE AND TO HOLD all and singular the aforesaid property unto the
Indenture Trustee, its successors and assigns, for the benefit and security of
the Holders for the uses and purposes and subject to the terms and provisions
set forth in the Indenture.
This Supplement shall be construed as supplemental to the Indenture
and shall form a part thereof, and the Indenture is hereby incorporated by
reference herein and is hereby ratified, approved and confirmed.
This Supplement is being delivered in the State of New York.
AND, FURTHER, the Owner Trustee hereby acknowledges that the
Aircraft/Engines referred to in this Supplement and the aforesaid Lease
Supplement has been delivered to the Owner Trustee and is included in the
property of the Owner Trustee and covered by all the terms and conditions of
the Trust Agreement, subject to the Lien of the Indenture.
IN WITNESS WHEREOF, the Owner Trustee has caused this Supplement to
be duly executed as of the date first written above by one of its officers
thereunto duly authorized.
WILMINGTON TRUST COMPANY,
not in its individual capacity,
but solely as Owner Trustee
By______________________________________
Name: Donald G. MacKelcan
Title: Assistant Vice President
Exhibit B
to
Trust Indenture and Security Agreement
[Form of Certificate]
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY
NOT BE SOLD OR OFFERED FOR SALE IN CONTRAVENTION OF SAID ACT
No. ______ $_____________
EQUIPMENT TRUST CERTIFICATE
(Federal Express Corporation Trust No. N581FE)
WILMINGTON TRUST COMPANY
not in its individual capacity but solely as
OWNER TRUSTEE UNDER TRUST AGREEMENT
(Federal Express Corporation Trust No. N581FE)
dated as of May 1, 1997
Interest Rate Maturity
SERIES ___
Wilmington Trust Company, a Delaware banking corporation, not in its
individual capacity but solely as Owner Trustee (herein in such capacity
called the "Owner Trustee") under that certain Trust Agreement (Federal
Express Corporation Trust No. N581FE) dated as of May 1, 1997, between the
Owner Participants named therein and Wilmington Trust Company (herein as such
Trust Agreement may be amended or supplemented from time to time called the
"Trust Agreement"), hereby promises to pay to FIRST SECURITY BANK, NATIONAL
ASSOCIATION, as Subordination Agent, or its registered assigns, the principal
sum of ________________ _______________ Dollars, payable as set forth below
for the Maturity specified above, in such coin or currency of the United
States of America as at the time of payment shall be legal tender for the
payment of public and private debts, and to pay interest on the principal
outstanding from time to time, semiannually on each January 15 and July 15, on
said principal sum in like coin or currency at the rate per annum set forth
above from the January 15 or the July 15, as the case may be, next preceding
the date of this Certificate to which interest on the Certificates has been
paid or duly provided for, unless the date hereof is a date to which interest
on the Certificates has been paid or duly provided for, in which case from the
date of this Certificate. Notwithstanding the foregoing, if the date hereof
is after any January 15 or July 15 and before the following January 15 or July
15, as the case may be, this Certificate shall bear interest from such January
15 or July 15; provided that, if the Owner Trustee shall default in the
payment of interest due on such January 15 or July 15, then this Certificate
shall bear interest from the next preceding January 15 or July 15 to which
interest on this Certificate has been paid or duly provided for. The interest
so payable on any January 15 or July 15 will, except as otherwise provided in
the Indenture referred to below, be paid to the person in whose name this
Certificate is registered at the close of business on the January 15 or July
15 preceding such January 15 or July 15, whether or not such day is a Business
Day.
This Certificate shall bear interest at the Past Due Rate on any
principal hereof and on any other amount payable hereunder or under the
Indenture which shall not be paid in full when due (whether at stated
maturity, by acceleration, by mandatory prepayment or otherwise), for the
period from and including the date thereof to but excluding the date the same
is paid in full, payable from time to time on demand of the Indenture Trustee.
Principal and interest and other amounts due hereunder shall be
payable at the office or agency of First Security Bank, National Association
(the "Indenture Trustee") maintained for such purpose; provided that, at the
option of the Indenture Trustee or its Paying Agent, interest may be paid by
mailing a check therefor payable to or upon the written order of the
registered holder entitled thereto at his last address as it appears on the
Register. If any amount payable under this Certificate, or under the
Indenture, falls due on a day that is not a Business Day, then such sum shall
be payable on the next succeeding Business Day, without (provided that payment
is made on such next succeeding Business Day) additional interest thereon for
the period of such extension.
Wilmington Trust Company and First Security Bank, National
Association are not acting individually hereunder, but solely as Owner Trustee
and Indenture Trustee.
Any Person, other than the Subordination Agent, who is acquiring the
Certificates will be deemed to represent and warrant that (i) no assets of an
employee benefit plan subject to Title I of ERISA or an individual retirement
account or plan subject to Section 4975 of the Code, or any trust established
under any such plan or account, have been used to acquire or hold any of the
Certificates, or (ii) that one or more administrative or statutory exemptions
from the prohibited transaction rules under Section 406 of ERISA and Section
4975 of the Code applies to its purchase and holding of the Certificates such
that its purchase and holding of the Certificates will not result in a
non-exempt prohibited transaction under Section 406 of ERISA and Section 4975
of the Code.
This Certificate is one of a duly authorized issue of Certificates
issued and to be issued under the Trust Indenture and Security Agreement
(Federal Express Corporation Trust No. N581FE) dated as of May 1, 1997 (herein
as amended, supplemented or modified from time to time called the "Indenture")
between the Owner Trustee and the Indenture Trustee, designated as Equipment
Trust Certificates (Federal Express Corporation Trust No. N581FE) limited in
aggregate initial principal amount to $61,833,000 consisting of the following
aggregate principal amounts of Certificates with the interest rates per annum
and Maturities shown:
Initial
Aggregate
Principal
Series Maturity Amount Interest Rate
------ ---------------- ----------- -------------
A January 15, 2017 $35,615,000 7.50%
B January 15, 2013 $13,210,000 7.52%
C January 15, 2009 $13,008,000 7.65%
Reference is made to the Indenture and all supplements and amendments
thereto (a copy of which is on file with the Indenture Trustee at its
principal corporate trust office) for a more complete statement of the terms
and provisions thereof, including a statement of the properties conveyed,
pledged and assigned thereby, the nature and extent of the security, the
respective rights of the Owner Trustee, the Owner Participants, the Lessee,
the Indenture Trustee and the Holders, and the terms upon which the
Certificates are, and are to be, executed and delivered, to all of which terms
and conditions in the Indenture each Holder hereof agrees by its acceptance of
this Certificate.
Capitalized terms not otherwise defined herein shall have the
meanings given to them in the Indenture.
The principal amounts of the Certificates are payable as follows. The
Certificates are subject to redemption in part, pro rata (based on the face
amount thereof), in each case through mandatory sinking fund redemptions
providing for the redemption on the Sinking Fund Redemption Dates of the
aggregate principal amounts set forth below, together with interest accrued
thereon to the applicable Sinking Fund Redemption Date, but without Make-Whole
Premium.
Principal Amount
Series A Series B Series C
Certificates with Certificates with Certificates with
Sinking Fund a Maturity of a Maturity of a Maturity of
Redemption Date January 15, 2017 January 15, 2013 January 15, 2009
- ---------------- ----------------- ----------------- -----------------
July 15, 1997 0 0 0
January 15, 1998 705,440 118,915 612
July 15, 1998 0 0 0
January 15, 1999 712,440 267,165 422,853
July 15, 1999 0 0 0
January 15, 2000 712,440 267,165 487,095
July 15, 2000 0 0 0
January 15, 2001 712,440 267,165 601,601
July 15, 2001 0 0 0
January 15, 2002 712,440 267,165 721,202
July 15, 2002 0 0 0
January 15, 2003 712,440 267,165 850,280
July 15, 2003 0 0 0
January 15, 2004 356,220 267,165 1,345,453
July 15, 2004 356,220 0 0
January 15, 2005 660,860 267,165 818,083
July 15, 2005 51,580 0 0
January 15, 2006 356,220 133,583 1,767,096
July 15, 2006 356,220 133,582 0
January 15, 2007 712,440 267,165 2,965,098
July 15, 2007 0 0 0
January 15, 2008 712,440 267,165 2,280,789
July 15, 2008 0 0 0
January 15, 2009 712,440 1,339,061 747,838
July 15, 2009 0 0 0
January 15, 2010 712,440 2,158,388 0
July 15, 2010 0 0 0
January 15, 2011 712,440 3,441,339 0
July 15, 2011 0 0 0
January 15, 2012 712,440 2,766,370 0
July 15, 2012 0 0 0
January 15, 2013 4,852,281 714,277 0
July 15, 2013 0 0 0
January 15, 2014 5,917,242 0 0
July 15, 2014 80,029 0 0
January 15, 2015 6,142,140 0 0
July 15, 2015 313,361 0 0
January 15, 2016 6,384,222 0 0
July 15, 2016 564,520 0 0
January 15, 2017 681,605 0 0
Except as expressly provided in the Indenture, all payments of
principal, Make-Whole Premium, if any, and interest and other amounts to be
made to the Holder hereof by or at the behest of the Owner Trustee hereunder
or under the Indenture shall be made only from the income and proceeds from
the Lessor's Estate to the extent included in the Trust Indenture Estate and
only to the extent that the Owner Trustee shall have sufficient income or
proceeds from the Lessor's Estate to the extent included in the Trust
Indenture Estate to enable the Indenture Trustee to make such distributions in
accordance with the terms of the Indenture; provided that under the Lease, the
Lessee is obligated to pay or cause to be paid, to the extent such payments
are not required to be made from the assets subject to the Lien of this
Indenture or the income and proceeds received by the Indenture Trustee
therefrom, any net loss arising from the investment of funds held by the
Indenture Trustee which but for an Event of Default would be payable to
Lessee, and each Holder hereof, by its acceptance of this Certificate, agrees
that it will (except as aforesaid) look solely to the income and proceeds from
the Trust Indenture Estate to the extent available for distribution to the
Holder hereof as provided above and that neither the Owner Participants, the
Owner Trustee, WTC nor the Indenture Trustee is personally liable to the
Holder hereof for any amounts payable or any liability under this Certificate
or under the Indenture, except as expressly provided in the Indenture, in the
case of WTC, the Owner Trustee and the Indenture Trustee.
The Certificates are subject to prepayment in the following
circumstances at the price determined as set forth below.
(i) If an Event of Loss occurs with respect to the Airframe or with
respect to the Airframe and the Engines or engines then installed on the
Airframe (unless pursuant to Section 11.03 of the Lease and Section 9.08 of
the Indenture replacement equipment is substituted therefor).
(ii) If the Lessee, pursuant to Section 4.02(a) of the Lease, gives
notice of purchase of the Aircraft (and the Lessee shall not have effected
an assumption of the Certificates as provided in Section 2.12 of the
Indenture).
(iii) If the Owner Participants or the Owner Trustee on behalf of the
Owner Participants gives notice of prepayment to the Indenture Trustee
pursuant to Section 8.02 of the Indenture.
(iv) If the Lessee, pursuant to Section 10.01 of the Lease, gives
notice of a voluntary termination for obsolescence or surplus, but subject
to Section 6.02(c) of Indenture.
(v) Pursuant to Section 15.01 of the Participation Agreement in
connection with a Refinancing of the Certificates.
(vi) As contemplated by Section 2.16 of the Indenture and Section
3.05(b) of the Participation Agreement if the Delivery Date has not
occurred on or prior to the Cut-Off Date.
(vii) At the option of the Owner Trustee with the prior written
consent of the Lessee upon not less than 25 days' prior written notice.
In the case of a prepayment of the Certificates pursuant to clauses
(ii), (iv) and (v) above, the Lessee, in accordance with and subject to the
terms (including timing of notice) of Section 4.02(a) or 10.01 of the Lease or
Article 15 of the Participation Agreement, as the case may be, shall give
irrevocable (subject to Section 6.02(c) of the Indenture) written notice to
the Owner Trustee and the Indenture Trustee and to the Holders of all of the
Certificates specifying the Business Day on which the Owner Trustee is
directed to prepay the Certificates. In the case of a prepayment pursuant to
clause (i) above, the Certificates shall be prepaid on the Loss Payment Date
(as defined in Section 11.02 of the Lease). In the case of a prepayment
pursuant to clause (iii) above, the Certificates shall be prepaid on the date
designated in the notice of prepayment required by Section 8.02 of the
Indenture. In the case of a prepayment of the Certificates pursuant to clauses
(ii) and (iv) above, the Certificates shall be prepaid in full on the
Termination Date. In the case of a prepayment of the Certificates pursuant to
clause (v) above, the Certificates shall be prepaid on the effective date of
the Refinancing. In the case of a prepayment of the Certificates pursuant to
clause (vi) above, the Certificates shall be prepaid on the 15th day following
the Cut-Off Date. In the case of a prepayment of the Certificates pursuant to
clause (vii) above, the Certificates shall be prepaid on the date designated
in the notice referred to therein. The day on which the Certificates are to
be prepaid is herein referred to as the "Prepayment Date". On or prior to the
Prepayment Date, immediately available funds shall be deposited with the
Indenture Trustee in an amount in respect of the Certificates equal to:
(1) in the event of a prepayment of the Certificates pursuant to
clause (i), (iii) (if clause (i) of the first sentence of Section 8.02(a)
of the Indenture is applicable) or, if such prepayment is made on or after
the applicable Premium Termination Date, clause (ii), (iii) (if clause (ii)
of the first sentence of Section 8.02(a) of the Indenture is applicable) or
(vi) above, the sum of (A) the aggregate principal amount of such
Certificates then Outstanding, (B) accrued interest on the Certificates to
the Prepayment Date and (C) all other aggregate sums due the Indenture
Trustee under the Indenture or under the Participation Agreement or the
Lease, but excluding any Make-Whole Premium or other premium or penalty, or
(2) if such prepayment is made prior to the applicable Premium
Termination Date, in the event of a prepayment of the Certificates pursuant
to clause (ii), (iii) (if clause (ii) of the first sentence of Section
8.02(a) of the Indenture is applicable), (iv), (v) or (vii) above, the sum
of the amounts specified in clauses (A), (B) and (C) of the preceding
clause (1) plus any Make-Whole Premium payable in respect of all
Certificates with respect to which the Premium Termination Date therefor
has not occurred
(the aggregate amount required to be paid pursuant to this sentence being
herein referred to as the "Prepayment Price").
If, in accordance with and subject to the satisfaction of the
conditions set forth in Section 7.11 of the Participation Agreement, the
Lessee shall assume all of the obligations of the Owner Trustee hereunder,
under the Certificates and all other Operative Agreements, the Owner
Participants and the Owner Trustee shall (except for prior acts) be released
and discharged from any further obligations hereunder and under the
Certificates and all other Operative Agreements (except any obligations that
have accrued prior to such assumption).
If an Indenture Event of Default under the Indenture shall occur and
be continuing, the principal of the Certificates may be declared due and
payable in the manner and with the effect provided in the Indenture. The
Indenture provides that in certain events such declaration and its
consequences may be waived the Majority in Interest of Holders. Any such
consent or waiver shall be conclusive and binding upon the Holder of this
Certificate and upon all future Holders and owners of this Certificate and any
Certificate that may be issued in exchange or substitution therefor, whether
or not any notation thereof is made upon this Certificate or such other
Certificates. Moreover, if, and only if, an Event of Default shall occur, the
Indenture Trustee may declare the Lease to be in default, and may, to the
exclusion of the Owner Trustee, exercise one or more of the remedies of the
Owner Trustee provided in the Lease.
The Owner Trustee or the Owner Participants may cure a default by the
Lessee under the Lease arising from the failure of the Lessee to make any
Basic Rent payments under the Lease, but the Owner Trustee and the Owner
Participants, collectively, may not cure more than three consecutive such
failures or more than six such failures in total. The Owner Trustee or the
Owner Participants may cure any other default by the Lessee in the performance
of its obligations under the Lease.
(A) If an Event of Default shall have occurred and be continuing for
more than 180 days or the Certificates shall have been accelerated or (B) an
Event of Default shall have occurred and be continuing for not more than 180
days and the Certificates shall not have been accelerated, the Owner
Participants (or the Owner Trustee on behalf of the Owner Participants) may:
(1) direct the Owner Trustee to cause the prepayment of all the
Outstanding Certificates by notifying the Indenture Trustee of such
election and depositing the sum of amounts contemplated by paragraph
"first" under Section 5.03 of the Indenture and the aggregate
Prepayment Price of all such Certificates with the Indenture Trustee
for distribution to the Holders; or
(2) purchase all of the Outstanding Certificates by paying to the
Indenture Trustee an amount equal to the aggregate unpaid principal
amount of all Outstanding Certificates, plus accrued interest on such
amount to the date of purchase and any Make-Whole Premium applicable
to each Outstanding Certificate, if such purchase occurs prior to the
Premium Termination Date for such Outstanding Certificate, (in the
case of a purchase pursuant to clause (ii) of the first sentence of
Section 8.02(a) of the Indenture) plus all other sums due any Holder
or the Indenture Trustee under the Indenture, the Participation
Agreement or the Lease.
The right of the Holder hereof to institute an action for any remedy
under the Indenture is subject to certain restrictions specified in the
Indenture, except that the right of the Holder of this Certificate to receive
payment of the principal of and interest and Make-Whole Premium, if any, on
this Certificate on or after the respective due dates, or to institute suit
for the enforcement of any such payment, shall not be impaired or affected
without the consent of such Holder.
The Certificates are issuable only as registered Certificates without
coupons in denominations of $1,000 and integral multiples thereof. So long as
any of the Certificates remain Outstanding, the Indenture Trustee will
maintain an office or agency where the Certificates may be presented for
payment and a facility or agency in New York, New York where the Certificates
may be presented for registration of transfer and for exchange as provided in
the Indenture. As provided in the Indenture and subject to certain
limitations therein, this Certificate is transferable, and upon surrender of
this Certificate for registration of transfer at the principal corporate trust
office of the Indenture Trustee, or at the office or agency maintained for such
purposes, duly endorsed by, or accompanied by a written instrument of transfer
in form satisfactory to the Owner Trustee and the Indenture Trustee duly
executed by, the Holder or his attorney duly authorized in writing, one or
more new Certificates of the same Series and Maturity and interest rate and of
authorized denominations and for the same aggregate principal amount will be
issued to the designated transferee or transferees.
As provided in the Indenture and subject to certain limitations
therein, the Certificates are exchangeable for an equal aggregate principal
amount of Certificates of the same Series and Maturity and interest rate and
of authorized denominations, as requested by the Holder surrendering the same,
upon presentation thereof for such purpose at the principal corporate trust
office of the Indenture Trustee, or at an office or agency maintained for such
purpose.
No service charge shall be levied for any such registration of
transfer or exchange, but the Indenture Trustee may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection
therewith.
Prior to the due presentment for registration of transfer of this
Certificate, the Owner Trustee, the Indenture Trustee, any agent of the Owner
Trustee or the Indenture Trustee, the Paying Agent, if any, the Registrar and
the Lessee may deem and treat the person in whose name this Certificate is
registered as the absolute owner hereof for all purposes whether or not this
Certificate is overdue, and neither the Owner Trustee, the Indenture Trustee
(nor any agent of the Owner Trustee or the Indenture Trustee), nor the Paying
Agent, if any, the Registrar nor the Lessee shall be affected by notice to the
contrary.
The indebtedness evidenced by this Certificate is, to the extent and
in the manner provided in the Indenture, subordinate and subject in right of
payment to the prior payment in full of the Secured Obligations (as defined in
the Indenture) in respect of [Series A Certificate](1), [Series A and Series B
Certificates](2) and this Certificate is issued subject to such provisions.
The Holder of this Certificate, by accepting the same, (a) agrees to and shall
be bound by such provisions, (b) authorizes and directs the Indenture Trustee
on such Holder's behalf to take such action as may be necessary or appropriate
to effectuate the subordination as provided in the Indenture and (c) appoints
the Indenture Trustee such Holder's attorney-in-fact for such purpose.(*)
As provided in the Indenture, the Indenture and the Certificates
shall be construed in accordance with and governed by the laws of the State of
New York.
This Certificate shall not be secured by or be entitled to any
benefit under the Indenture or be valid or obligatory for any purpose unless
authenticated by the Indenture Trustee as evidenced by the manual signature of
one of its authorized officers on the certificate below.
IN WITNESS WHEREOF, the Owner Trustee has caused this Equipment Trust
Certificate (Federal Express Corporation Trust No. N581FE) to be duly executed
in its corporate name by its officer thereunto duly authorized.
Dated: May ___, 1997 WILMINGTON TRUST COMPANY,
not in its individual capacity,
but solely as Owner Trustee
By ____________________________________
Name: Donald G. MacKelcan
Title: Assistant Vice President
- ----------
(1) To be inserted in the case of a Series B Certificate.
(2) To be inserted in the case of a Series C Certificate.
(*) To be inserted for each Certificate other than any Series A
Certificate.
[FORM OF INDENTURE TRUSTEE'S CERTIFICATE OF AUTHENTICATION]
This is one of the Equipment Trust Certificates (Federal Express
Corporation Trust No. N581FE) referred to in the within mentioned Indenture.
Dated: May ___, 1997 FIRST SECURITY BANK, NATIONAL ASSOCIATION,
not in its individual capacity,
but solely as Indenture Trustee
By ____________________________________
Name: Greg A. Hawley
Title: Vice President
SCHEDULE I
[Reserved]
SCHEDULE II
DEFINITIONS
(FEDERAL EXPRESS CORPORATION TRUST NO. N581FE)
GENERAL PROVISIONS
The following terms shall have the following meanings for all
purposes of the Operative Agreements (other than the Pass Through Agreement,
the Series Supplements, the Intercreditor Agreement and the Liquidity
Facilities) referred to below, unless otherwise defined in an Operative
Agreement or the context thereof shall otherwise require. In the case of any
conflict between the provisions of this Schedule and the provisions of any
Operative Agreement, the provisions of such Operative Agreement shall control
the construction of such Operative Agreement.
Unless the context otherwise requires, (i) references to agreements
shall be deemed to mean and include such agreements as amended and
supplemented from time to time, and (ii) references to parties to agreements
shall be deemed to include the successors and permitted assigns of such
parties.
DEFINED TERMS:
Additional Insured. As defined in Section 13.01(c)(i) of the Lease.
Aeronautics Authority. As appropriate, the Federal Aviation
Administration and/or the Administrator of the Federal Aviation
Administration, any successor to the former United States Civil Aeronautics
Board, or any Person, governmental department, bureau, commission or agency
located in the United States succeeding to the functions of any of the
foregoing.
Affidavit. The affidavit of citizenship of the Owner Trustee.
Affiliate. With respect to any Person, any other Person directly or
indirectly controlling, controlled by or under common control with such
Person. For the purposes of this definition, "control" (including "controlled
by" and "under common control with") shall mean the power, directly or
indirectly, to direct or cause the direction of the management and policies of
such Person whether through the ownership of voting securities or by contract
or otherwise. In no event shall the Owner Trustee or the Lessor be deemed an
Affiliate of an Owner Participant and WTC shall not be deemed to be an
Affiliate of any of the Owner Trustee, the Lessor or such Owner Participant.
Neither Owner Participant, by virtue of its status or the agreements in
respect thereof, shall be deemed an "Affiliate" of the other Owner
Participant.
After-Tax Basis. A basis such that any payment received or deemed to
have been received by a Person (the "Original Payment") shall be supplemented
by a further payment to such Person so that the sum of the two payments shall
be equal to the Original Payment, after taking into account (x) all Taxes that
would result from the receipt or accrual of such payments and (y) any
reduction in Taxes that would result from such increased Taxes. In the case
of amounts payable to the Lessor, the Owner Participants, or any corporate
Affiliate of an Owner Participant, it shall be presumed that such Person is at
all times subject to Federal income tax at the maximum marginal rate generally
applicable to corporations from time to time and actual state, local and
foreign income taxes.
Air Carrier. Any U.S. Air Carrier and any "foreign air carrier" (as
defined in the Transportation Code) as to which there is in force a permit
granted under Section 41302 of the Transportation Code.
Aircraft. The Airframe to be sold by the Lessee to the Owner Trustee
as provided in the Participation Agreement and to be leased under the Lease
(or any permitted substitute airframe thereunder) together with three Engines
(whether each an initial Engine or a Replacement Engine) whether or not any of
such initial or Replacement Engines may from time to time be installed on such
Airframe or may be installed on any other airframe or on any other aircraft,
including any aircraft substituted pursuant to Section 11.03 of the Lease.
Prior to delivery of the initial Lease Supplement, references in the Operative
Agreements (including Section 3.05 of the Participation Agreement) to Aircraft
shall mean the McDonnell Douglas MD-11F airframe bearing FAA Registration
Number N581FE and Manufacturer's serial number 48419, together with three
General Electric CF6-80C2-D1F engines.
Airframe. The McDonnell Douglas MD-11F aircraft (excluding the
Engines or engines from time to time installed thereon) to be leased by the
Lessor to the Lessee pursuant to the Lease and the initial Lease Supplement
and having the United States FAA Registration Number initially and
manufacturer's serial number specified in the initial Lease Supplement,
including (i) all Parts in respect thereof and (ii) any Replacement Airframe
which may be substituted pursuant to Section 11.03 of the Lease.
Ancillary Agreement. Any written agreement of the Lessee to which the
Lessor is a party or to which the Lessor has consented in writing entered into
on or prior to the Delivery Date or any date thereafter in connection with the
transactions contemplated by the Operative Agreements, as such agreement may
be amended and supplemented from time to time with the consent of the Lessor
and delivered to the Owner Trustee, the Indenture Trustee, the Pass Through
Trustee, the Subordination Agent, each Liquidity Provider and the Owner
Participants.
Ancillary Agreement I. The Ancillary Agreement I (Federal Express
Corporation Trust No. N581FE), dated the Certificate Closing Date, among the
Lessee, the Owner Trustee, not in its individual capacity, but solely as Owner
Trustee, the Owner Participants and the Indenture Trustee not in its
individual capacity, but solely as Indenture Trustee, as originally executed
or as amended, modified or supplemented with the consent of all the parties
thereto.
Application. The application for registration of the Aircraft with
the FAA in the name of the Owner Trustee.
Appraisal. The report prepared by BK Associates, Inc. and to be
delivered to the Owner Participants (with a copy of the fair market value
letter to the Lessee) on the Delivery Date pursuant to Section 4.02(h) of the
Participation Agreement.
Average Life Date. For any Certificate, the date which follows the
prepayment date by a period equal to the Remaining Weighted Average Life of
such Certificate.
Bankruptcy Code. The Federal Bankruptcy Code of 1978, as amended, and
any successor thereto.
Bankruptcy Default. An event specified in Section 16.01(e), (f) or
(g) of the Lease which either does or, with the giving of notice or lapse of
time or both, would constitute an Event of Default.
Basic Rent. The periodic rent payable for the Aircraft throughout
the Basic Term pursuant to Section 3.02 of the Lease, adjusted pursuant to
Article 3 of the Lease.
Basic Term. The period commencing at the beginning of the day on the
Delivery Date and ending at the end of the day on January 15, 2019, or such
earlier date on which the Lease shall be terminated as provided therein.
Beneficial Interest. The interest of the Owner Participants under
the Trust Agreement.
Bills of Sale. Collectively, the FAA Bill of Sale and the Warranty
Bill of Sale.
Business Day. Any day on which commercial banks are not authorized or
required to close in New York, New York, Memphis, Tennessee and the city in the
United States in which the office or agency is maintained by the Pass Through
Trustee for the payment of the Pass Through Certificates, and after the Lien
of the Indenture is discharged, Wilmington, Delaware.
Certificate Closing Date. The date of the closing with respect to the
purchase of Certificates by the Pass Through Trustee contemplated by Section
2.01(b) of the Participation Agreement.
Certificates. The Equipment Trust Certificates (Federal Express
Corporation Trust No. N581FE), issued by the Owner Trustee pursuant to the
Indenture and any certificate issued in exchange therefor or replacement
thereof pursuant to the Indenture.
Change in Tax Law. Any change to the Code or the Treasury regulations
promulgated thereunder or the publication of any revenue ruling, revenue
procedure or any informational release by the Internal Revenue Service or the
Department of Treasury either of which would change or would allow a change in
the tax assumptions or structure upon which the lease economics were based,
provided that the Owner Participants or the Lessee have notified the other
party of such change in writing prior to the Delivery Date.
Change in Tax Rate. Any amendment, modification, deletion, addition,
or change to the Code which is enacted into law after the Delivery Date which
changes the highest marginal statutory rate of Federal income tax applicable
to an Owner Participant (other than a change which is in the nature of a
minimum tax).
Citizen of the United States. A citizen of the United States as
defined in Section 40102(a)(15) of the Transportation Code, or any analogous
part of any successor or substituted legislation or regulation at the time in
effect.
Class A Liquidity Provider. Has the meaning specified in Section
1.01 of the Intercreditor Agreement.
Class B Liquidity Provider. Has the meaning specified in Section
1.01 of the Intercreditor Agreement.
Closings. The closing with respect to the acquisition of the Pass
Through Certificates by the Underwriters and the closing with respect to the
acquisition of Certificates by the Pass Through Trustee.
Code. Except as otherwise provided, the Internal Revenue Code of
1986, as amended from time to time.
Collateral Account. The deposit account established and maintained
pursuant to Section 2.13 of the Indenture.
Collateral Account Control Agreement. The Collateral Account Control
Agreement dated as of May 1, 1997 among State Street Bank and Trust Company,
the Indenture Trustee and the Owner Trustee.
Commitment. The amount of the Owner Participants' participation in
the Purchase Price required to be made available or paid as provided in
Section 3.02 of the Participation Agreement.
Corporate Trust Administration. The Corporate Trust Administration
office of the Owner Trustee located at 1100 North Market Street, Rodney Square
North, Wilmington, Delaware 19890-0001, Attention: Corporation Trust
Administration, or such other office at which the Owner Trustee's corporate
trust business shall be administered which the Owner Trustee shall have
specified by notice in writing to the Lessee, the Owner Participant and the
Indenture Trustee.
Corporate Trust Department. The Corporate Trust Department office of
the Indenture Trustee located at 79 South Main Street, Salt Lake City, Utah
84111, Attention: Corporate Trust Department, or such other office at which
the Indenture Trustee's corporate trust business shall be administered which
the Indenture Trustee shall have specified by notice in writing to the Lessee,
the Owner Participant and the Owner Trustee.
CRAF Program. Has the meaning specified in Section 7.02(a)(iv) of the
Lease.
Cut-Off Date. September 4, 1997.
Debt Portion. The amount specified as such on Schedule IV to the
Participation Agreement.
Debt Rate. The weighted average (based on Outstanding principal
amount) rate of interest on the Certificates issued pursuant to the Indenture.
Default. Any event or condition which, with the lapse of time or the
giving of notice, or both, would constitute an Event of Default.
Delivery Date. The date on which the Aircraft is delivered and sold
by the Lessee to the Lessor and leased by the Lessor to the Lessee under the
Lease, which date shall also be the date of the initial Lease Supplement.
Delivery Notice. Notice of the Aircraft's Delivery Date, given by
the Lessee as provided in Section 3.01 of the Participation Agreement and
including any notice with respect to a postponed Delivery Date given by the
Lessee pursuant to Section 3.05(c) of the Participation Agreement.
EBO Price. Has the meaning set forth in Section 4.02(a)(F) of the
Lease.
Eligible Deposit Account. Either (a) a segregated account with an
Eligible Institution or (b) a segregated trust account with the corporate
trust department of a depository institution with corporate trust powers
organized under the laws of the United States or any state thereof, or the
District of Columbia, and whose deposits are insured by the Federal Deposit
Insurance Corporation, provided that such institution also has a combined
capital and surplus of at least $100,000,000 and a rating of A or better from
the Thomson Bank Watch.
Eligible Institution. A depository institution organized under the
laws of the United States or any one of the states thereof, or the District of
Columbia, or any domestic branch of a foreign bank, which in any such case at
all times (a) has either (x) a long-term unsecured debt rating of at least Aa2
by Moody's or (y) a short-term certificate of deposit rating of P-1 by
Moody's, (b) has either (x) a long-term unsecured debt rating of a least AA by
S&P or (y) a short-term certificate of deposit rating of A-1+ by S&P and (c)
is a member of the Federal Deposit Insurance Corporation.
Engine. Each of the three General Electric CF6-80C2-D1F engines
listed by its manufacturer's serial number in the initial Lease Supplement and
leased pursuant to the Lease, whether or not from time to time installed on
the Airframe or installed on any other airframe or on any other aircraft, and
any Replacement Engine which may from time to time be substituted for an
Engine pursuant to Section 7.02(a)(vii), 10.02(c), 10.03, 11.03, 11.04 or
12.02 of the Lease, together with all Parts related thereto. Except as
otherwise provided, at such time as a Replacement Engine shall be so
substituted and the Engine for which the substitution is made shall be
released from the Lien of the Indenture, such replaced Engine shall cease to
be an "Engine" under the Lease. The term "Engines" means, as of any date of
determination, all Engines then leased to the Lessee pursuant to the Lease.
Engine Consent. The Engine Consent dated as of May 1, 1997, executed
by the Engine Manufacturer.
Engine Manufacturer. General Electric Company, a New York
corporation.
Engine Warranty Assignment. The Engine Warranty Assignment (Federal
Express Corporation Trust No. N581FE), dated as of May 1, 1997 between the
Lessor and the Lessee.
Equity Percentage. For any Owner Participants, the fractional
interest, expressed as a percentage, of such Owner Participant's interest in
the Beneficial Interest, calculated by dividing the Commitment of such Owner
Participant (or of such Owner Participant's predecessor in interest) paid on
the Delivery Date by the aggregate of the Commitments paid by all of the Owner
Participants on the Delivery Date. As to AmSouth Leasing Ltd., such Equity
Percentage shall be 50% and as to BTM Funding Corporation, such Equity
Percentage shall be 50%.
ERISA. The Employee Retirement Income Security Act of 1974, as
amended.
ERISA Plan. An employee benefit plan subject to Title I of ERISA, or
an individual retirement account or plan subject to Section 4975 of the Code.
Estimated Expense Amount. Has the meaning specified in Section
10.01(a) of the Participation Agreement.
Event of Default. Each of the events specified in Article 16 of the
Lease.
Event of Loss. Any of the following events with respect to the
Aircraft, the Airframe or any Engine: (i) loss of such property or its use
(A) for a period in excess of 30 days due to theft or disappearance or such
longer period not to exceed 60 days from the end of such initial 30-day period
if and so long as the location of such property is known to the Lessee and the
Lessee is diligently pursuing recovery of such property, or to the end of the
Term, if less (unless such loss constitutes an Event of Loss under clause (ii)
of this definition) or (B) for a period in excess of 60 days due to the
destruction, damage beyond economic repair or rendition of such property
permanently unfit for normal use by Lessee for any reason whatsoever; (ii) any
damage to such property which results in an insurance settlement with respect
to such property on the basis of a total loss, or constructive or compromised
total loss; (iii) (1) condemnation, confiscation or seizure of, or requisition
of title to such property by the Government, any foreign government or
purported government or any agency or instrumentality thereof, or (2)
condemnation, confiscation, or seizure of, or requisition or taking of, use of
such property (A) by a foreign government or instrumentality or agency of any
such foreign government, for a period in excess of 180 days (or such shorter
period ending on the earlier of the expiration of the Term or on the date on
which an insurance settlement with respect to such property on the basis of a
total loss or constructive or compromised total loss shall occur) or (B) by
the Government for a period extending beyond the Term, provided that no Event
of Loss shall be deemed to have occurred, and the Term shall be extended
automatically for a period of six months (or the date of return of the
Aircraft, if shorter, so long as the Lessor receives at least six months
notice of such date of return) beyond the end of the Term in the event that
the Aircraft, the Airframe or any Engine is requisitioned by the Government
pursuant to an activation as part of the CRAF Program described in Section
7.02(a)(iv) of the Lease; and (iv) as a result of any law, rule, regulation,
order or other action by the Aeronautics Authority or other governmental body
having jurisdiction, the use of the Aircraft or Airframe in the normal course
of air transportation of cargo shall have been prohibited by virtue of a
condition affecting all McDonnell Douglas MD-11 series aircraft equipped with
engines of the same make and model as the Engines for a period of six (6)
consecutive months, unless the Lessee, prior to the expiration of such six (6)
month period, shall be diligently carrying forward all steps which are
necessary or desirable to permit the normal use of the Aircraft or Airframe
or, in any event, if such use of the Aircraft or the Airframe shall have been
prohibited for a period of twelve (12) consecutive months, unless the Lessee,
prior to the expiration of such twelve (12) month period shall have conformed
at least one McDonnell Douglas MD-11 series aircraft (but not necessarily the
Aircraft or the Airframe) to the requirements of any such law, rule,
regulation, order, or other action and shall have commenced regular commercial
use and shall be diligently carrying forward, on a non-discriminatory basis,
all steps necessary or desirable to permit the normal use of the Aircraft by
the Lessee. The date of such Event of Loss shall be (s) the 31st day or the
91st day, as the case may be, following loss of such property or its use due
to theft or disappearance (or the end of the Term, if earlier); (t) the 61st
day following the date of any destruction, damage beyond economic repair or
rendition of such property permanently unfit for normal use; (u) the date of
any insurance settlement on the basis of a total loss or constructive or
compromised total loss; (v) the date of any condemnation, confiscation,
seizure or requisition of title of such property; (w) the 181st day following
condemnation, confiscation, seizure or requisition for use of such property by
a foreign government referred to in clause (iii)(2)(A) above (or the end of
the Term or the date of any insurance settlement described therein, if earlier
than such 181st day); (x) the last day of the Term in the case of requisition
for use of such property by the Government; (y) the last day of the 6 month or
12 month period, referred to in clause (iv) above. An Event of Loss with
respect to the Aircraft shall be deemed to have occurred if any Event of Loss
occurs with respect to the Airframe.
Excepted Payments. Collectively, (i) indemnity or other payments (and
interest thereon to the extent provided in the Operative Agreements) paid or
payable by the Lessee in respect of any Owner Participant, the Owner Trustee
in its individual capacity or any of their respective successors, permitted
assigns, directors, officers, employees, servants and agents or Affiliates,
pursuant to the Participation Agreement or any indemnity hereafter granted to
any Owner Participant or the Owner Trustee in its individual capacity pursuant
to the Lease or the Participation Agreement, (ii) proceeds of public liability
insurance (or government indemnities in lieu thereof) in respect of the
Aircraft payable as a result of insurance claims paid for the benefit of, or
losses suffered by, the Owner Trustee or the Indenture Trustee in their
respective individual capacities or by any Owner Participant, or their
respective successors, permitted assigns or Affiliates, (iii) proceeds of
insurance maintained with respect to the Aircraft by any Owner Participant
(whether directly or through the Owner Trustee) maintained in accordance with
the provisions of but not required under Article 13 of the Lease, (iv)
payments of Supplemental Rent by the Lessee in respect of any amounts payable
under the Tax Indemnity Agreements, (v) any amounts payable by the Lessee to
any Owner Participant or the Owner Trustee in its individual capacity, after
the release thereof from the Lien of the Indenture, (vi) the payment of
incremental out-of-pocket expenses of the Owner Trustee, each Owner
Participant or their respective authorized representatives payable by the
Lessee under Section 6.03(b) of the Participation Agreement or Section 14.01
of the Lease following any reregistration of the Aircraft and (vii) proceeds
of, and any right to demand, collect or otherwise receive and enforce the
payment of any amount described in clauses (i) through (vii) above.
Expense; Expenses. Have the meaning specified in Section 9.01(a) of
the Participation Agreement.
FAA Bill of Sale. The bill of sale for the Airframe on AC Form
8050-2, or such other form as may be approved by the Aeronautics Authority,
executed by the Lessee in favor of the Owner Trustee and to be dated the
Delivery Date.
Fair Market Renewal Term. A term with respect to which the Lessee has
exercised its option to renew the Lease pursuant to the second paragraph of
Section 4.01(a) thereof and with respect to which the conditions set forth in
such Section 4.01(a) are met.
Fair Market Rental. An amount determined on the basis of, and equal
in amount to, the rental which would be obtained in an arm's-length
transaction between an informed and willing lessee and an informed and willing
lessor unaffiliated with such lessee, neither being under any compulsion to
lease. In such determination, it shall be assumed that the Aircraft is in the
condition required under the Lease in the case of return of the Aircraft
pursuant to Article 12 of the Lease. Fair Market Rental shall be determined
in accordance with the provisions of Section 4.03 of the Lease.
Fair Market Value. An amount determined on the basis of, and equal
in amount to, the value which would be obtained in an arm's-length transaction
between an informed and willing purchaser under no compulsion to buy and an
informed and willing seller unaffiliated with such purchaser and under no
compulsion to sell, assuming that the Aircraft (or other property) is
unencumbered by the Lease. Unless otherwise provided in the applicable
provisions of any Operative Agreement, in such determination it shall be
assumed that the Aircraft is in the condition required under the Lease in the
case of return of the Aircraft pursuant to Article 12 of the Lease; provided
that in connection with any determination pursuant to or for the purposes of
Article 17 of the Lease, the Aircraft shall be appraised on an "as is, where
is" basis. Fair Market Value shall be determined in accordance with the
provisions of Section 4.03 of the Lease.
Federal Aviation Administration; FAA. The United States Federal
Aviation Administration and any successor agency or agencies thereto.
Final Drawing. Has the meaning specified in Section 1.01 of the
Intercreditor Agreement.
Fixed Renewal Rent. Semi-annual payments of rent during the Fixed
Renewal Term equal to the amount set forth in Ancillary Agreement I.
Fixed Renewal Term. The term with respect to which the Lessee has
exercised its option to renew the Lease pursuant to the first paragraph of
Section 4.01(a) thereof and with respect to which the conditions set forth in
such Section 4.01(a) are met.
FSB. First Security Bank, National Association, a national banking
association.
Government. The United States of America or an agency or
instrumentality thereof the obligations of which bear the full faith and
credit of the United States of America.
GTA. The General Terms Agreement dated as of July 3, 1991 between the
Engine Manufacturer and the Lessee related to the purchase by the Lessee of the
Engines as originally executed or as modified, amended or supplemented in
accordance with the terms thereof, but only insofar as the General Terms
Agreement relates to the Engines, to the extent assigned to the Owner Trustee
pursuant to the Engine Warranty Assignment.
Holder of a Certificate; Certificate Holder; Holder. As of any
particular time, the Person in whose name a Certificate shall be registered
(but not including the holder of any Pass Through Certificate).
Indemnitee. Each of WTC, in its individual capacity and as Owner
Trustee and Lessor, each Owner Participant, the Indenture Trustee, in its
individual capacity and as trustee, the Subordination Agent, in its individual
capacity and in its capacity as Subordination Agent, each Liquidity Provider,
each Owner Participant Guarantor, and any successor (including any trustee
which may succeed to the Lessor's interest under the Lease), Affiliate,
assign, officer, director, employee, agent and servant of any of the
foregoing, the Lessor's Estate and the Trust Indenture Estate. Neither the
Pass Through Trustee nor any holder of a Pass Through Certificate shall be
deemed to be an Indemnitee.
Indenture. The Trust Indenture and Security Agreement (Federal
Express Corporation Trust No. N581FE), dated as of May 1, 1997, between the
Lessor and the Indenture Trustee, as supplemented by the Indenture and
Security Agreement Supplement.
Indenture and Security Agreement Supplement. The Indenture and
Security Agreement Supplement No. 1 (Federal Express Corporation Trust No.
N581FE) to be dated the Delivery Date, substantially in the form of Exhibit A
to the Indenture.
Indenture Default. Any event or condition which, with the lapse of
time or the giving of notice, or both, would constitute an Indenture Event of
Default.
Indenture Documents. Has the meaning specified in the Granting
Clause of the Indenture.
Indenture Event of Default. Each of the events specified in Section
7.01 of the Indenture.
Indenture Trustee. First Security Bank, National Association, a
national banking association, not in its individual capacity but solely as
Indenture Trustee under the Indenture.
Indenture Trustee's Liens. Any Lien against, on or with respect to
the Aircraft, the Lessor's Estate or the Trust Indenture Estate or any part
thereof resulting from (i) claims against the Indenture Trustee not related to
the administration of the Trust Indenture Estate or any transactions pursuant
to the Indenture or any document included in the Trust Indenture Estate, (ii)
any act or omission of the Indenture Trustee which is not related to the
transactions contemplated by the Operative Agreements or is in violation of
any of the terms of the Operative Agreements or (iii) Taxes imposed against
the Indenture Trustee in its individual capacity against which the Lessee has
not indemnified (and is not obligated to indemnify) the Indenture Trustee in
such capacity.
Independent Investment Banker. An independent investment banking
institution of national standing appointed by the Lessee that is independent
in fact, does not have any direct financial interests, or any material
indirect financial interest, in the Lessee or any Affiliate of the Lessee, and
is not connected with the Lessee or any Affiliate of the Lessee, as an
officer, employee, promoter, underwriter, trustee, partner, director or Person
performing similar functions; provided, that if the Indenture Trustee shall
not have received written notice of such an appointment at least 10 days prior
to the Prepayment Date, "Independent Investment Banker" shall mean such an
institution appointed by the Indenture Trustee.
Intercreditor Agreement. The Intercreditor Agreement dated as of May
1, 1997, among the Pass Through Trustee, the Class A Liquidity Provider, the
Class B Liquidity Provider and the Subordination Agent.
Interest Drawing. Has the meaning specified in Section 1.01 of the
Intercreditor Agreement.
Invoice. The invoice for the Aircraft given by the Lessee to the
Lessor.
Lease. The Lease Agreement (Federal Express Corporation Trust No.
N581FE) dated as of May 1, 1997, entered into by the Lessor and the Lessee
concurrently with the execution and delivery of the Indenture, including,
without limitation, supplementation by one or more Lease Supplements entered
into pursuant to the applicable provisions of the Lease.
Lease Supplement. The Lease Supplement No. 1 (Federal Express
Corporation Trust No. N581FE) to be dated the Delivery Date, substantially in
the form of Exhibit A to the Lease.
Lease Term. The period commencing on the Delivery Date and ending at
the end of the Basic Term.
Lessee. Federal Express Corporation, a Delaware corporation.
Lessee Documents. Has the meaning set forth in Section 6.01(b) of the
Participation Agreement.
Lessor. Wilmington Trust Company, not in its individual capacity but
solely as Owner Trustee under the Trust Agreement.
Lessor's Estate. All estate, right, title and interest of the Owner
Trustee in and to the Collateral Account, the Liquid Collateral, the Aircraft,
the Lease, any Lease Supplement, the Participation Agreement, the Bills of
Sale, the Modification Agreement, any Ancillary Agreement, the GTA, the Engine
Warranty Assignment, the Engine Consent, any warranty with respect to the
Airframe and the Engines, all amounts of Basic Rent and Supplemental Rent,
including without limitation, insurance proceeds (other than insurance
proceeds payable to or for the benefit of the Owner Trustee in its individual
capacity, any Owner Participant or the Indenture Trustee) and requisition,
indemnity or other payments of any kind for or with respect to the Aircraft
(except amounts owing to any Owner Participant, to the Indenture Trustee, to
the Owner Trustee in its individual capacity, or to any of their respective
directors, officers, employees and agents pursuant to Articles 8 and 9 of the
Participation Agreement), and all other property of the Owner Trustee
purportedly subjected to the Lien of the Indenture by the Granting Clause
thereof; provided that in no event shall "Lessor's Estate" include any
Excepted Payment.
Lessor's Liens. Liens against, on or with respect to the Aircraft,
the Lessor's Estate or the Trust Indenture Estate or any part thereof, title
thereto or any interest therein arising as a result of (i) claims against the
Lessor, in its individual capacity or as Owner Trustee, or any Owner
Participant, in each case not related to the transactions contemplated by the
Operative Agreements, (ii) acts or omissions of the Lessor in its individual
capacity or as Owner Trustee, and, in the case of the Lessor in its individual
capacity, arising from its gross negligence or willful misconduct or expressly
prohibited under the Operative Agreements and any act or omission of any Owner
Participant which is in violation of any of the terms of the Operative
Agreements, (iii) Taxes or Expenses imposed against the Lessor, in its
individual capacity or as Owner Trustee, any Owner Participant, Lessor's
Estate or the trust created by the Trust Agreement which are not required to
be indemnified against by the Lessee pursuant to the Participation Agreement
by reason of Section 8.01(b) or 9.01(b) thereof or which are not required to
be indemnified against by the Lessee pursuant to the Tax Indemnity Agreements,
or (iv) claims against the Lessor or any Owner Participant arising from the
voluntary transfer by the Lessor or any Owner Participant of its interests in
the Aircraft other than a transfer of the Aircraft pursuant to Section 4.02(a)
or Article 7, 8, 9, 10 or 11 of the Lease and other than a transfer pursuant
to the exercise of the remedies set forth in Article 17 of the Lease.
Lien. Any mortgage, pledge, lien, charge, encumbrance, lease or
security interest or other similar interest.
Liquid Collateral. All amounts and securities deposited from time to
time in the Collateral Account and all the products, investments, earnings and
proceeds of the foregoing, including, but not limited to, all proceeds of the
investment or conversion thereof, voluntary or involuntary, into cash,
Specified Investments or other property, all rights to payment of any and
every kind, and other forms of obligations, and instruments and other property
which at any time constitute all or part or are included in the proceeds of
any of the foregoing.
Liquidity Facility. Has the meaning specified in Section 1.01 of the
Intercreditor Agreement.
Liquidity Provider. Has the meaning specified in Section 1.01 of the
Intercreditor Agreement.
Losses. Has the meaning specified in Section 17.02(a) of the
Participation Agreement.
Loss Payee. Has the meaning specified in Section 13.02(b)(i) of the
Lease.
Majority in Interest of Certificate Holders. As of a particular date
of determination, the Holders of more than 50% of the aggregate unpaid
principal amount of all Certificates outstanding as of such date excluding for
purposes of this definition any Certificates held by (i) the Owner Trustee or
any Owner Participant or any interests of such Owner Participant unless all
Certificates then outstanding shall be held by such Owner Participant, (ii)
the Lessee or (iii) any Affiliate of any thereof.
Majority in Interest of Owner Participants. As of a particular date
of determination, the Owner Participants holding more than 50% of the
Beneficial Interest.
Make-Whole Premium. An amount determined as of the day before the
applicable Prepayment Date (or date of purchase, as the case may be) which an
Independent Investment Banker determines to be equal to the excess, if any, of
(i) the present value of the remaining scheduled payments of such principal
amount or portion thereof and interest thereon (excluding interest accrued
from the immediately preceding Payment Date to such Prepayment Date or date of
purchase, as the case may be) to the Maturity of such Certificate in
accordance with generally accepted financial practices assuming a 360-day year
consisting of twelve 30-day months at a discount rate equal to the Treasury
Yield, all as determined by the Independent Investment Banker over (ii) the
outstanding principal amount of such Certificate plus accrued interest.
Manufacturer. McDonnell Douglas Corporation, a Maryland corporation.
Maturity. With respect to any Certificate, the date on which the
final principal amount of such Certificate is scheduled to be due and payable.
Modification Agreement. The Aircraft Modification Agreement dated as
of December 1, 1995 between the Lessee and the Manufacturer providing for the
refurbishing and reconfiguration of the Aircraft including any warranties
relating thereto, but only to the extent that the foregoing relates to the
Aircraft, to the extent assigned to the Owner Trustee pursuant to the Warranty
Bill of Sale.
Moody's. Moody's Investors Service, Inc.
Net Present Value of Rents. The net present value, as of the
Delivery Date, of Basic Rent set forth in Schedule II of the Lease, discounted
at a rate equal to the Debt Rate per annum compounded semi-annually.
Non-U.S. Person. Any Person other than a U.S. Person.
Obsolete Parts. Parts which the Lessee in good faith determines to be
obsolete or no longer suitable or appropriate for use on the Airframe or any
Engine.
Officer's Certificate. When delivered pursuant to the Indenture, a
certificate signed by a Responsible Officer of the Lessee or the Owner
Trustee, as the case may be, and delivered to the Indenture Trustee. Each
such certificate shall include the statements provided for in Section 15.07 of
the Indenture.
Operative Agreements. The Participation Agreement, the Trust
Agreement, the Bills of Sale, the Modification Agreement, the GTA, the Engine
Warranty Assignment, the Lease, the Lease Supplement, each Owner Participant
Guaranty, the Owner Trustee Guaranty, if any, any Ancillary Agreement entered
into by or with the written consent of the Indenture Trustee, which by its
terms is an Operative Agreement, the Certificates outstanding at the time of
reference, the Indenture, the Indenture and Security Agreement Supplement, the
Engine Consent, the Tax Indemnity Agreements, each Liquidity Facility, the
Collateral Account Control Agreement and the Intercreditor Agreement.
Opinion of Counsel. When delivered pursuant to the Indenture, a
written opinion of legal counsel, who in the case of counsel (a) for the
Lessee may be (i) an attorney employed by the Lessee who is generally
empowered to deliver such written opinions, (ii) Davis Polk & Wardwell or a
successor firm or (iii) other counsel designated by the Lessee and reasonably
satisfactory to the Indenture Trustee and (b) for the Owner Trustee or the
Indenture Trustee, an attorney selected by such Person and, in the case of the
Owner Trustee, reasonably satisfactory to the Indenture Trustee.
Outstanding. When used with respect to Certificates, as of the date
of determination and subject to the provisions of Section 10.04 of the
Indenture, all Certificates theretofore executed and delivered under the
Indenture, with the exception of the following:
(i) Certificates theretofore cancelled by the Indenture Trustee or
delivered to the Indenture Trustee for cancellation pursuant to
Section 2.08 of the Indenture or otherwise;
(ii) Certificates for which prepayment money in the necessary amount
has been theretofore deposited with the Indenture Trustee in trust
for the Holders of such Certificates pursuant to Section 14.01 of the
Indenture; provided, that if such Certificates are to be prepaid,
notice of such prepayment has been duly given pursuant to the
Indenture or provision therefor satisfactory to the Indenture Trustee
has been made; and
(iii) Certificates in exchange for or in lieu of which other
Certificates have been executed and delivered pursuant to Article II
of the Indenture.
Owner Participant or Owner Participants. The trustors originally
named in the Trust Agreement and any successors thereto, and any Person to
which any Owner Participant transfers, in accordance with the Trust Agreement,
its right, title and interest in and to the Operative Agreements and the
Lessor's Estate.
Owner Participant Guarantor. AmSouth Bank of Alabama, in respect of
AmSouth Leasing Ltd., and Bank of Tokyo-Mitsubishi Trust Company, in respect of
BTM Funding Corp., and any other provider of an Owner Participant Guaranty.
Owner Participant Guaranty. Each Owner Participant Guaranty dated the
Certificate Closing Date, substantially in the form of Exhibit E to the
Participation Agreement.
Owner Trustee. WTC, not in its individual capacity except as
otherwise expressly stated, but solely as Owner Trustee under the Trust
Agreement.
Owner Trustee Guarantor. The provider, if any, of an Owner Trustee
Guaranty.
Owner Trustee Guaranty. Any guaranty delivered in compliance with
Section 11.01(b)(ii) of the Participation Agreement.
Owners' Economic Return. The Owner Participants' anticipated net
after-tax book yield and aggregate after-tax cash during the Basic Term
utilizing the multiple investment sinking fund method of analysis, computed on
the basis of the same methodology and assumptions as were utilized by the
Owner Participants in determining Basic Rent, Stipulated Loss Value and
Termination Value percentages and the EBO Price, as such assumptions may be
adjusted for events which have been the basis of adjustments to Rent pursuant
to Section 3.04 of the Lease.
Participation Agreement. The Participation Agreement (Federal Express
Corporation Trust No. N581FE), dated as of May 1, 1997, among the Lessee, the
Owner Trustee not in its individual capacity except as otherwise expressly
provided therein, but solely as owner trustee, the Owner Participants, the
Indenture Trustee not in its individual capacity except as otherwise expressly
provided therein, but solely as indenture trustee, the Pass Through Trustee
not in its individual capacity except as otherwise expressly provided therein,
but solely as pass through trustee and the Subordination Agent not in its
individual capacity except as otherwise expressly provided therein, but solely
as subordination agent.
Parts. All appliances, parts, components, instruments, appurtenances,
accessories, furnishings and other equipment of whatever nature (other than
complete Engines or engines) which may from time to time be incorporated or
installed in or attached to the Airframe or any Engine or title to which
remains vested in the Lessor pursuant to Article 8 of the Lease.
Pass Through Agreement. The Pass Through Trust Agreement dated as of
May 1, 1997 between the Lessee and the Pass Through Trustee.
Pass Through Certificates. Any of the Pass Through Certificates,
1997-1-A, the Pass Through Certificates, 1997-1-B or the Pass Through
Certificates, 1997-1-C, in each case as issued by the related Pass Through
Trust; and "Pass Through Certificates" means all of the Pass Through
Certificates issued by each of the Pass Through Trusts.
Pass Through Closing Date. The Business Day on which the sale of the
Pass Through Certificates to the Underwriters pursuant to the Underwriting
Agreement takes place.
Pass Through Trust. The Federal Express Corporation 1997-1 Pass
Through Trust Class A, Federal Express Corporation 1997-1 Pass Through Trust
Class B and Federal Express Corporation 1997-1 Pass Through Trust Class C, in
each case formed pursuant to the related Series Supplement in accordance with
the Pass Through Agreement; and "Pass Through Trusts" means all of such Pass
Through Trusts.
Pass Through Trustee. First Security Bank, National Association, a
national banking association, in its capacity as Pass Through Trustee under
the Pass Through Agreement and each Pass Through Trust.
Past Due Rate. In respect of (A) any amount payable to the Owner
Participants or the Owner Trustee a rate per annum during the period from and
including the due date to but excluding the date on which such amount is paid
in full equal to 2% plus the Debt Rate and (B) any principal of or interest on
any Certificate or any other amount payable under the Indenture, any
Certificate or any other Operative Agreement that is not paid when due
(whether at Maturity, by acceleration, by optional or mandatory prepayment or
otherwise) to any Holder, the Indenture Trustee or the Pass Through Trustee, a
rate per annum during the period from and including the due date to but
excluding the date on which such amount is paid in full equal to (i) in the
case of any such amount payable to the Holder of any Certificate, 2% plus the
interest rate applicable to such Certificate and (ii) in the case of any other
such amount, 2% plus the Debt Rate.
Payment Date. Each January 15 and July 15 commencing on July 15,
1997.
Payment Default. Any event specified in Section 16.01(a) or 16.01(b)
of the Lease which with the giving of notice or lapse of time or both would
constitute an Event of Default.
Permitted Investments. Those investments enumerated in Section
23.01(a) (i), (ii), (iii) and (iv) of the Lease.
Person. Any individual, sole proprietorship, partnership, joint
venture, joint stock company, trust, unincorporated organization, association,
corporation, institution, entity or government (federal, state, local, foreign
or any agency, instrumentality, division or body thereof).
Preliminary Notice. Has the meaning specified in Section 4.01(a) of
the Lease.
Premium Termination Date. With respect to the Series A Certificates,
December 27, 2011, with respect to the Series B Certificates, February 5, 2010
and with respect to the Series C Certificates, March 22, 2007.
Prepayment Date. Has the meaning specified in Section 6.02(b) of the
Indenture.
Prepayment Price. Has the meaning specified in Section 6.02(b) of the
Indenture.
Principal Amount. With respect to a Certificate means the stated
original principal amount of such Certificate and, with respect to all
Certificates, means the aggregate stated original principal amounts of all
Certificates.
Property. Any right or interest in or to property of any kind
whatsoever, whether real, personal or mixed and whether tangible or intangible.
Proposed Termination Date. Has the meaning specified in Section
10.01(a) of the Lease.
Purchase Price. Has the meaning specified in Ancillary Agreement I.
Record Date. With respect to Payment Dates under the Indenture
(except a date for payment of defaulted interest), December 31 for January 15
Payment Dates and June 30 for July 15 Payment Dates, whether or not such date
is a Business Day.
Recourse Amount. Has the meaning specified in Section 17.10 of the
Participation Agreement.
Refinancing. A non-recourse loan to the Lessor arranged pursuant to
Section 15.01 of the Participation Agreement.
Register. Has the meaning set forth in Section 3.02 of the Indenture.
Registrar. Has the meaning set forth in Section 3.02 of the
Indenture.
Regulation D. Regulation D of the Board of Governors of the Federal
Reserve System (or any successor), as the same may be modified and
supplemented and in effect from time to time.
Remaining Weighted Average Life. On a given date with respect to any
Certificate the number of days equal to the quotient obtained by dividing (i)
the sum of each of the products obtained by multiplying (a) the amount of each
then remaining scheduled payment of principal of such Certificate by (b) the
number of days from and including such prepayment date to but excluding the
dates on which each such payment of principal is scheduled to be made; by (ii)
the then outstanding principal amount of such Certificate.
Renewal Rent. The amount payable by the Lessee as rent in accordance
with Section 4.01 of the Lease during any Renewal Term.
Renewal Term. One or more terms with respect to which the Lessee has
exercised its option to renew the Lease pursuant to Section 4.01(a) thereof.
Rent. All payments due from the Lessee under the Lease as Basic Rent,
Renewal Rent and Supplemental Rent, collectively.
Rent Payment Date. Each January 15 and July 15 commencing on July 15,
1997.
Reoptimization Date. Has the meaning specified in Section 15.02(a)
of the Participation Agreement.
Replacement Aircraft. Any aircraft substituted for the Aircraft
pursuant to Section 11.03(a) of the Lease.
Replacement Airframe. Has the meaning set forth in Section 11.03 of
the Lease.
Replacement Engine. A General Electric CF6-80C2-D1F engine (or an
engine of the same or another manufacturer) of the same or of equal or greater
value, remaining useful life and utility as the Engine being replaced,
together with all Parts relating to such engine; provided, however, that if
such replacement engine is not a General Electric CF6-80C2-D1F engine, such
replacement engine must then be commonly used in the commercial aviation
industry on McDonnell Douglas MD-11 airframes.
Responsible Officer. With respect to the Owner Trustee (except for
purposes of the Trust Agreement in which case the definition of Responsible
Officer set forth in Section 3.10 of the Trust Agreement is applicable) or the
Indenture Trustee, any officer in its Corporate Trust Administration, as the
case may be, designated by such Person to perform obligations under the
Operative Agreements, and with respect to any other party, any corporate
officer or (except in the case of any Owner Participant) other employee of a
party who, in the normal performance of his or her operational
responsibilities, with respect to the subject matter of any covenant,
agreement or obligation of such party pursuant to any Operative Agreement,
would have responsibility for and knowledge of such matter and the
requirements of any Operative Agreement with respect thereto.
S&P. Standard & Poor's Ratings Group.
Scheduled Delivery Date. The Delivery Date specified in the Delivery
Notice pursuant to Section 3.01 of the Participation Agreement.
SEC. The Securities and Exchange Commission of the United States and
any successor agencies or authorities.
Secured Obligations. Has the meaning specified in the Granting
Clause of the Indenture.
Securities Act. The Securities Act of 1933, as amended.
Series "A" or "Series A Certificates". Certificates issued and
designated as "Series A" under the Indenture, in the Principal Amount and
maturities and bearing interest as specified in Exhibit B to the Indenture
under the heading "Series A".
Series "B" or "Series B Certificates". Certificates issued and
designated as "Series B" under the Indenture, in the Principal Amount and
maturities and bearing interest as specified in Exhibit B to the Indenture
under the heading "Series B".
Series "C" or "Series C Certificates". Certificates issued and
designated as "Series C" under the Indenture, in the Principal Amount and
maturities and bearing interest as specified in Exhibit B to the Indenture
under the heading "Series C".
Series Supplement or Series Supplements. The Series Supplement
1997-1-A to be executed and delivered by the Lessee and the Pass Through
Trustee, the Series Supplement 1997-1-B to be executed and delivered by the
Lessee and the Pass Through Trustee or the Series Supplement 1997-1-C to be
executed and delivered by the Lessee and the Pass Through Trustee.
Sinking Fund Redemption Date. Has the meaning specified in Section
6.06 of the Indenture.
Sinking Fund Redemption Price. Has the meaning specified in Section
6.06 of the Indenture.
Special Aviation Counsel. Daugherty, Fowler & Peregrin.
Specified Investments. Shall mean (a) direct obligations of the
United States of America or obligations fully guaranteed by the United States
of America; (b) commercial paper rated A-1/P-1 by S&P and Moody's,
respectively or, if such ratings are unavailable, rated by any nationally
recognized rating organization in the United States equal to the highest
rating assigned by such rating organization; (c) investments in negotiable
certificates of deposit, time deposits, banker's acceptances, commercial paper
or other direct obligations of, or obligations guaranteed by, commercial banks
organized under the laws of the United States or of any political subdivision
thereof (or any U.S. branch of a foreign bank) with issuer ratings of at least
B/C by Thomson Bankwatch, having maturities no later than 90 days following
the date of such investment; (d) overnight federal funds transactions with
members of the Federal Reserve System arranged by federal funds brokers; or
(e) overnight repurchase agreements with respect to the securities described
in clause (a) above entered into with an office of a bank or trust company
which is located in the United States of America or any bank or trust company
which is organized under the laws of the United States or any state thereof
and has capital, surplus and undivided profits aggregating at least $500
million.
Stipulated Loss Value. As of any Stipulated Loss Value Determination
Date during the Basic Term, the amount determined by multiplying the Purchase
Price by the percentage set forth in Schedule III of the Lease under the
heading "Stipulated Loss Value Factor" opposite such date (as such Schedule
III may be adjusted from time to time as provided in Section 3.04 of the
Lease), and during any Renewal Term, the amount determined pursuant to Section
4.01(b) of the Lease. Notwithstanding any other provisions of the Lease or
the Participation Agreement or the Indenture, each Stipulated Loss Value shall
be, under any circumstances and in any event, an amount, together with so much
of the arrears portion of Basic Rent due and owing through the date of payment
of Stipulated Loss Value as does not constitute an Excepted Payment, at least
sufficient to pay in full as of such date of payment the aggregate unpaid
principal amount of and accrued interest on the Certificates outstanding on
such date of payment. Subject to the immediately preceding sentence, it is
understood and agreed that the amounts set forth on Schedule III of the Lease,
for dates other than Rent Payment Dates on which arrears Basic Rent is due,
fully reflect appropriate Basic Rent accruals and credits of unearned Basic
Rent and, accordingly, no further accrual or credit shall be required whenever
Stipulated Loss Value is to be calculated with reference to any such date.
Stipulated Loss Value Determination Date. Each date set forth on
Schedule III of the Lease.
Subordination Agent. First Security Bank, National Association, a
national banking association, not in its individual capacity but solely as
Subordination Agent.
Supplemental Rent. (a) All amounts, liabilities and obligations
which the Lessee assumes or agrees to perform or pay under the Lease or under
the Participation Agreement or Tax Indemnity Agreements or any Ancillary
Agreement or any other Operative Agreement to WTC, the Lessor, the Owner
Participants, the Indenture Trustee, the Subordination Agent, any Liquidity
Provider or others, including, without limitation, payments of Stipulated Loss
Value, EBO Price and amounts calculated by reference to Termination Value and
all amounts required to be paid by Lessee under the agreements, covenants and
indemnities contained in the Lease or in the Participation Agreement or the
Tax Indemnity Agreements or any other Operative Agreement, but excluding Basic
Rent and (b) all amounts that the Owner Trustee is obligated to pay in
accordance with clause (b) of the last paragraph of Section 2.04 of the
Indenture.
Tax. Shall have the meaning set forth in Section 8.01(a) of the
Participation Agreement.
Tax Indemnity Agreements. Each of the Tax Indemnity Agreements
(Federal Express Corporation Trust No. N581FE), dated as of May 1, 1997, among
the Lessee, the Lessor and each Owner Participant.
Term. The Basic Term of the lease for the Aircraft under the Lease
and, if renewed pursuant to Section 4.01 of the Lease, each Renewal Term for
the Aircraft for which the Lease is renewed, or such earlier date on which the
Lease is terminated pursuant to its terms.
Termination Date. A Rent Payment Date during the Basic Term that is
on or after July 15, 2004 in the case of Article 10 of the Lease, and in the
case of (i) Section 4.02(a)(A) of the Lease, the Rent Payment Date falling on
January 15, 2012 or January 15, 2017, as the case may be, (ii) Section
4.02(a)(D) or (E) of the Lease, a Rent Payment Date that is on or after the
eighth anniversary of the Delivery Date and (iii) Section 4.02(a)(F) of the
Lease, January 15, 2015.
Termination Value. As of any Termination Date, the amount determined
by multiplying the Purchase Price by the percentage set forth in Schedule IV
of the Lease under the heading "Termination Value Factor" opposite such
Termination Date (as such Schedule IV may be adjusted from time to time as
provided in Section 3.04 of the Lease). Notwithstanding any other provisions
of the Lease, the Participation Agreement or the Indenture, each Termination
Value shall be, under any circumstances and in any event, an amount, together
with so much of the arrears portion of Basic Rent due and owing through the
date of payment of any amount calculated by reference to Termination Value as
does not constitute an Excepted Payment, at least sufficient to pay in full as
of such date of payment the aggregate unpaid principal amount of and accrued
interest on the Certificates outstanding on such date of payment. Subject to
the immediately preceding sentence, it is understood and agreed that the
amounts set forth on Schedule IV of the Lease, for dates other than Rent
Payment Dates on which arrears Basic Rent is due, fully reflect appropriate
Basic Rent accruals and credits of unearned Basic Rent and, accordingly, no
further accrual or credit shall be required whenever Termination Value is to
be calculated with reference to any such date.
Transaction Costs. Those costs and expenses set forth in Section
10.01(a) of the Participation Agreement.
Transportation Code. Title 49 of the United States Code, as amended
and in effect on the date of the Lease or as subsequently amended, or any
successor or substituted legislation at the time in effect and applicable, and
the regulations promulgated pursuant thereto.
Treasury Yield. At the time of determination with respect to any
Certificate, the interest rate (expressed as a semi-annual equivalent and as a
decimal and, in the case of United States Treasury bills, converted to a bond
equivalent yield) determined to be the per annum rate equal to the semi-annual
yield to maturity for United States Treasury securities maturing on the
Average Life Date on such Certificate and trading in the public securities
markets either as determined by interpolation between the most recent weekly
average yield to maturity for two series of United States Treasury securities,
trading in public securities markets, (i) one maturing as close as possible to,
but earlier than, the Average Life Date of such Certificate and (ii) the other
maturing as close as possible to, but later than, the Average Life Date of
such Certificate. In each case as published in the most recent H.15(519) or,
if a weekly average yield to maturity for United States Treasury securities
maturing on the Average Life Date of such Certificate is reported on the most
recent H.15 (519), such weekly average yield to maturity as published in such
H.15(919). "H.15(519)" means the weekly statistical release designated as
such, or any successor publication, published by the Board of Governors of the
Federal Reserve System. The date of determination of a Make-Whole Premium
will be the third Business Day prior to the applicable prepayment date and the
"most recent H.15(519)" means the H.15(519) published prior to the close of
business on the third Business Day prior to the applicable prepayment date.
Trust Agreement. The Trust Agreement (Federal Express Corporation
Trust No. N581FE), dated as of May 1, 1997, among the Owner Participants and
the Owner Trustee in its individual capacity.
Trust Estate. The Lessor's Estate.
Trust Indenture Act. The Trust Indenture Act of 1939, as amended.
Trust Indenture Estate. All estate, right, title and interest of the
Indenture Trustee in and to any of the property, rights, interests and
privileges granted to the Indenture Trustee pursuant to the Granting Clause of
the Indenture, other than Excepted Payments and any and all other rights of
the Owner Trustee or the Owner Participants expressly reserved to the Owner
Trustee or the Owner Participants pursuant to the Indenture.
Underwriters. Morgan Stanley & Co. Incorporated, First Chicago
Capital Markets, Inc., Goldman, Sachs & Co. and J.P. Morgan & Co.
Underwriting Agreement. The Underwriting Agreement dated May 22, 1997
among the Lessee and the Underwriters.
United States, U.S. or US. The United States of America.
U.S. Air Carrier. Any United States air carrier as to which there is
in force a certificate issued pursuant to Section 41102(a) or Section 41103 of
the Transportation Code, and as to which there is in force an air carrier
operating certificate issued pursuant to Chapter 447 of the Transportation
Code and Part 121 of the regulations under such Transportation Code, for
aircraft capable of carrying ten (10) or more individuals or 6,000 pounds or
more of cargo, or which may operate as an air carrier by certification or
otherwise under any successor or substitute provision thereof or in absence
thereof.
U.S. Person. A Person described in Section 7701(a)(30) of the Code.
Warranty Bill of Sale. The full warranty bill of sale covering the
Aircraft (and specifically referring to each Engine) executed by the Lessee,
as seller in favor of the Owner Trustee, as buyer, and to be dated the
Delivery Date.
WTC. Wilmington Trust Company, a Delaware banking corporation.
TRUST INDENTURE AND SECURITY AGREEMENT
(FEDERAL EXPRESS CORPORATION TRUST NO. N583FE)
Dated as of May 1, 1997
between
STATE STREET BANK AND TRUST COMPANY OF CONNECTICUT,
NATIONAL ASSOCIATION,
Not in its Individual
Capacity, but solely
As Owner Trustee,
Owner Trustee
and
FIRST SECURITY BANK, NATIONAL ASSOCIATION,
Not in its Individual
Capacity, but solely
As Indenture Trustee,
Indenture Trustee
COVERING ONE MCDONNELL DOUGLAS MD-11F AIRCRAFT
SERIAL NO. 48421, REGISTRATION NO. N1752K
- ------------------------------------------------------------------------------
TABLE OF CONTENTS
-----------------
Page
Initial Recitals......................................................... 1
Granting Clause.......................................................... 2
Habendum Clause.......................................................... 5
ARTICLE I
DEFINITIONS
Section 1.01. Definitions.............................................. 7
ARTICLE II
ISSUE, EXECUTION, FORM AND
REGISTRATION OF CERTIFICATES;
COLLATERAL ACCOUNT
Section 2.01. Authentication and Delivery of Certificates.............. 7
Section 2.02. Execution of Certificates................................ 8
Section 2.03. Certificate of Authentication............................ 8
Section 2.04. Form and Terms of Certificates; Payments of Principal,
Make-Whole Premium and Interest.......................... 8
Section 2.05. Payments from Trust Indenture Estate Only................ 11
Section 2.06. Registration, Transfer and Exchange...................... 12
Section 2.07. Mutilated, Defaced, Destroyed, Lost and Stolen
Certificates............................................. 13
Section 2.08. Cancellation of Certificates; Destruction Thereof........ 14
Section 2.09. Temporary Certificates................................... 14
Section 2.10. Termination of Interest in Trust Indenture Estate........ 15
Section 2.11. Certificates in Respect of Replacement Airframe.......... 15
Section 2.12. Assumption of Obligations Under Certificates and Other
Operative Agreements..................................... 15
Section 2.13. Establishment of Collateral Account...................... 16
Section 2.14. Investment of Funds on Deposit in the Collateral Account. 16
Section 2.15. Release of Debt Portion and Lien on the Collateral
Account and the Liquid Collateral on Delivery Date....... 17
Section 2.16. Cut-Off Date............................................. 18
Section 2.17. Subordination............................................ 18
Section 2.18. Reoptimization........................................... 18
ARTICLE III
COVENANTS
Section 3.01. Payment of Principal, Make-Whole Premium and Interest.... 19
Section 3.02. Offices for Payments, etc................................ 19
Section 3.03. Appointment to Fill a Vacancy in Office of Indenture
Trustee.................................................. 20
Section 3.04. Paying Agents............................................ 20
Section 3.05. Covenants of SSB and the Owner Trustee................... 20
Section 3.06. [Reserved]............................................... 21
Section 3.07. Disposal of Trust Indenture Estate....................... 21
Section 3.08. No Representations or Warranties as to Aircraft or
Documents................................................ 21
Section 3.09. Further Assurances; Financing Statements................. 22
ARTICLE IV
HOLDER LISTS
Section 4.01. Holder Lists; Ownership of Certificates.................. 22
ARTICLE V
RECEIPT, DISTRIBUTION AND APPLICATION OF
INCOME FROM THE TRUST INDENTURE ESTATE
Section 5.01. Basic Rent Distribution.................................. 22
Section 5.02. Event of Loss and Replacement; Prepayment................ 23
Section 5.03. Payment After Indenture Event of Default, etc............ 25
Section 5.04. Certain Payments......................................... 27
Section 5.05. Other Payments........................................... 27
Section 5.06. Payments to Owner Trustee................................ 27
Section 5.07. Application of Payments.................................. 28
Section 5.08. Investment of Amounts Held by Indenture Trustee.......... 28
Section 5.09. Withholding Taxes........................................ 29
ARTICLE VI
PREPAYMENT OF CERTIFICATES
Section 6.01. No Prepayment Prior to Maturity.......................... 29
Section 6.02. Prepayment of Certificates............................... 29
Section 6.03. Notice of Prepayment to Holders.......................... 31
Section 6.04. Deposit of Prepayment Price and Sinking Fund Redemption
Price.................................................... 32
Section 6.05. Certificates Payable on Prepayment Date.................. 32
Section 6.06. Mandatory Sinking Fund Redemption........................ 33
ARTICLE VII
INDENTURE EVENTS OF DEFAULT; REMEDIES
OF INDENTURE TRUSTEE AND HOLDERS
Section 7.01. Indenture Event of Default............................... 34
Section 7.02. Remedies................................................. 36
Section 7.03. Return of Aircraft, etc.................................. 38
Section 7.04. Indenture Trustee May Prove Debt......................... 41
Section 7.05. Remedies Cumulative...................................... 43
Section 7.06. Suits for Enforcement.................................... 43
Section 7.07. Discontinuance of Proceedings............................ 44
Section 7.08. Limitations on Suits by Holders.......................... 44
Section 7.09. Unconditional Right of Holders to Receive Principal,
Interest and Make-Whole Premium, and to Institute
Certain Suits............................................ 44
Section 7.10. Control by Holders....................................... 45
Section 7.11. Waiver of Past Indenture Default......................... 45
Section 7.12. Notice of Indenture Default.............................. 46
Section 7.13. Waiver of Appraisement, etc.; Laws....................... 46
ARTICLE VIII
RIGHTS OF THE OWNER TRUSTEE
AND THE OWNER PARTICIPANTS
Section 8.01. Certain Rights of Owner Trustee and Owner Participants... 47
Section 8.02. Owner Participant' Right to Elect to Prepay or Purchase the
Certificates............................................. 50
Section 8.03. Certain Rights of Owner Participant...................... 51
ARTICLE IX
CONCERNING THE INDENTURE TRUSTEE
Section 9.01. Acceptance of Trusts..................................... 53
Section 9.02. Duties and Responsibilities of the Indenture Trustee;
During an Indenture Event of Default; Prior to an
Indenture Event of Default............................... 53
Section 9.03. Certain Rights of the Indenture Trustee.................. 55
Section 9.04. Indenture Trustee Not Responsible for Recitals,
Disposition of Certificates or Application of
Proceeds Thereof......................................... 56
Section 9.05. Indenture Trustee and Agents May Hold Certificates;
Collections, etc......................................... 56
Section 9.06. Moneys Held by Indenture Trustee......................... 57
Section 9.07. Right of Indenture Trustee to Rely on Officer's
Certificate, etc......................................... 57
Section 9.08. Replacement Airframes and Replacement Engines............ 57
Section 9.09. Indenture and Security Agreement Supplement for
Replacements............................................. 60
Section 9.10. Effect of Replacement.................................... 61
Section 9.11. Compensation............................................. 61
ARTICLE X
CONCERNING THE HOLDERS
Section 10.01. Evidence of Action Taken by Holders..................... 61
Section 10.02. Proof of Execution of Instruments and of Holding of
Certificates............................................ 62
Section 10.03. Holders to Be Treated as Owners......................... 62
Section 10.04. Certificates Owned by Owner Trustee and the Lessee Deemed
Not Outstanding......................................... 62
Section 10.05. Right of Revocation of Action Taken..................... 63
Section 10.06. ERISA................................................... 63
ARTICLE XI
INDEMNIFICATION OF INDENTURE
TRUSTEE BY OWNER TRUSTEE
ARTICLE XII
SUCCESSOR TRUSTEES
Section 12.01. Notice of Successor Owner Trustee....................... 65
Section 12.02. Resignation and Removal of Indenture Trustee;
Appointment of Successor................................ 65
Section 12.03. Persons Eligible for Appointment as Indenture Trustee... 66
Section 12.04. Acceptance of Appointment by Successor Trustee.......... 67
Section 12.05. Merger, Conversion, Consolidation or Succession to
Business of Indenture Trustee........................... 67
Section 12.06. Appointment of Separate Trustees........................ 68
ARTICLE XIII
SUPPLEMENTS AND AMENDMENTS TO THIS
TRUST INDENTURE AND OTHER DOCUMENTS
Section 13.01. Supplemental Indentures Without Consent of Holders...... 70
Section 13.02. Supplemental Indentures With Consent of Holders......... 72
Section 13.03. Effect of Supplemental Indenture........................ 73
Section 13.04. Documents to Be Given to Indenture Trustee.............. 73
Section 13.05. Notation on Certificates in Respect of Supplemental
Indentures.............................................. 73
Section 13.06. No Request Necessary for Lease Supplement or Indenture
and Security Agreement Supplement....................... 73
Section 13.07. Notices to Liquidity Providers.......................... 74
ARTICLE XIV
SATISFACTION AND DISCHARGE OF INDENTURE;
UNCLAIMED MONEYS
Section 14.01. Satisfaction and Discharge of Indenture; Termination of
Indenture............................................... 74
Section 14.02. Application by Indenture Trustee of Funds Deposited for
Payment of Certificates................................. 75
Section 14.03. Repayment of Moneys Held by Paying Agent................ 76
Section 14.04. Transfer of Moneys Held by Indenture Trustee and Paying
Agent Unclaimed for Two Years and Eleven Months......... 76
ARTICLE XV
MISCELLANEOUS
Section 15.01. Capacity in Which Acting................................ 76
Section 15.02. No Legal Title to Trust Indenture Estate in Holders..... 76
Section 15.03. Sale of Trust Indenture Estate by Indenture Trustee is
Binding................................................. 76
Section 15.04. Indenture for Benefit of Owner Trustee, Indenture
Trustee, Owner Participant, Holders and Liquidity
Providers............................................... 77
Section 15.05. No Action Contrary to the Lessee's Rights Under the
Lease................................................... 77
Section 15.06. Notices................................................. 77
Section 15.07. Officer's Certificates and Opinions of Counsel;
Statements to Be Contained Therein...................... 78
Section 15.08. Severability............................................ 79
Section 15.09. No Oral Modifications or Continuing Waivers............. 79
Section 15.10. Successors and Assigns.................................. 79
Section 15.11. Headings................................................ 79
Section 15.12. Normal Commercial Relations............................. 79
Section 15.13. Governing Law; Counterparts............................. 80
Exhibit A -- Form of Indenture and Security Agreement Supplement
Exhibit B -- Form of Certificate
Schedule I -- [Reserved]
Schedule II -- Definitions
TRUST INDENTURE AND SECURITY AGREEMENT
(FEDERAL EXPRESS CORPORATION TRUST NO. N583FE)
TRUST INDENTURE AND SECURITY AGREEMENT (FEDERAL EXPRESS CORPORATION
TRUST NO. N583FE) dated as of May 1, 1997 (the "Indenture"), between STATE
STREET BANK AND TRUST COMPANY OF CONNECTICUT, NATIONAL ASSOCIATION, a national
banking association, not in its individual capacity, except as otherwise
specifically set forth herein (when acting in such individual capacity,
"SSB"), but solely as owner trustee (the "Owner Trustee") under the Trust
Agreement, as defined herein, and FIRST SECURITY BANK, NATIONAL ASSOCIATION, a
national banking association, as Indenture Trustee hereunder (the "Indenture
Trustee").
W I T N E S S E T H:
-------------------
WHEREAS, capitalized terms used herein shall have the respective
meanings set forth or referred to in Article I hereof;
WHEREAS, the Initial Owner Participant and SSB have, immediately
prior to the execution and delivery of this Indenture, entered into a Trust
Agreement (Federal Express Corporation Trust No. N583FE) dated as of the date
hereof (as amended or otherwise modified from time to time in accordance with
the provisions thereof and of the Participation Agreement, the "Trust
Agreement"), whereby, among other things, SSB has declared a certain trust for
the use and benefit of the Initial Owner Participant, subject, however, to the
Lien of this Indenture for the use and benefit of, and with the priority of
payment to, the holders of the Certificates issued hereunder, and the Owner
Trustee is authorized and directed to execute and deliver this Indenture;
WHEREAS, the Owner Trustee desires by this Indenture, among other
things (i) to provide for the issuance by the Owner Trustee of Certificates as
provided in the Participation Agreement, and (ii) to provide for the
assignment, mortgage and pledge by the Owner Trustee to the Indenture Trustee,
as part of the Trust Indenture Estate hereunder of the Owner Trustee's right,
title and interest in the Liquid Collateral and after the Delivery Date for
the assignment, mortgage and pledge by the Owner Trustee to the Indenture
Trustee, as part of the Trust Indenture Estate hereunder, of among other
things, certain of the Owner Trustee's estate, right, title and interest in
and to the Aircraft and the Indenture Documents and certain payments and other
amounts (other than Excepted Payments) received hereunder or thereunder in
accordance with the terms hereof, as security for, among other things, the
Owner Trustee's obligations to the Certificate Holders and for the benefit and
security of such Holders;
WHEREAS, all things have been done to make the Certificates, when
executed by the Owner Trustee, and authenticated, issued and delivered
hereunder, the valid obligations of the Owner Trustee; and
WHEREAS, all things necessary to make this Indenture the valid,
binding and legal obligation of the Owner Trustee, enforceable in accordance
with its terms, have been done and performed and have happened.
NOW, THEREFORE, the parties agree as follows:
GRANTING CLAUSE
NOW, THEREFORE, in consideration of the mutual promises contained
herein and to secure (i) the prompt payment of the principal of and Make-Whole
Premium, if any, and interest on, and all other amounts due with respect to,
all the Certificates from time to time outstanding under this Indenture and
all other amounts due hereunder and (ii) the performance and observance by the
Owner Trustee of all the agreements, covenants and provisions in this
Indenture, in the Certificates, in the Participation Agreement and in the
Lease contained for the benefit of the Holders of the Certificates, and the
prompt payment of any and all amounts from time to time owing under the
Participation Agreement by the Owner Trustee, any Owner Participant or the
Lessee to the Holders (collectively the "Secured Obligations") and for the uses
and purposes and subject to the terms and provisions of this Indenture, and in
consideration of the premises and of the covenants in this Indenture and in the
Certificates and of the purchase of the Certificates by their Holders, and of
the sum of $1 paid to the Owner Trustee by the Indenture Trustee at or before
the delivery of this Indenture, the receipt and sufficiency of which is hereby
acknowledged, the Owner Trustee has granted, bargained, sold, assigned,
transferred, conveyed, mortgaged, pledged, granted a first priority security
interest in and confirmed, and does hereby grant, bargain, sell, assign,
transfer, convey, mortgage, pledge and grant a first priority security
interest in and confirm to the Indenture Trustee, its successors and assigns,
in trust for the equal and ratable security and benefit of the Holders from
time to time of the Certificates, a first priority security interest in and
first mortgage Lien on all estate, right, title and interest of the Owner
Trustee in, to and under the following described property, rights and
privileges other than Excepted Payments, which collectively, excluding
Excepted Payments but including all property specifically subjected to the
Lien of this Indenture by the terms hereof, by any Indenture and Security
Agreement Supplement or any mortgage supplemental to this Indenture, are
included within the Trust Indenture Estate, subject always to the rights
granted to the Owner Trustee or any Owner Participant hereunder and to the
other terms and conditions of this Indenture:
(1) The Airframe, as the same is more particularly described in the
Indenture and Security Agreement Supplement and any airframe substituted in
replacement thereof pursuant to the provisions of this Indenture; the Engines,
as the same are more particularly described in the Indenture and Security
Agreement Supplement, whether or not such Engines shall be installed in or
attached to the Airframe or any other airframe, and any Replacement Engine
therefor; and all Parts in respect of the Airframe and the Engines and all
records, logs and other documents at any time maintained with respect to the
foregoing property;
(2) The Lease and all Rent thereunder, including, without limitation,
all amounts of Basic Rent and Supplemental Rent, and payments of any kind
thereunder and including all rights of the Owner Trustee to execute any
election or option or to give or receive any notice, consent, waiver or
approval under or in respect of the Lease or to accept any surrender of the
Aircraft or any part thereof as well as any rights, powers or remedies on the
part of the Owner Trustee, whether arising under the Lease or by statute or at
law or in equity or otherwise arising out of any Event of Default;
(3) The Modification Agreement (to the extent assigned to the Owner
Trustee pursuant to the Warranty Bill of Sale), the GTA, the Engine Warranty
Assignment and the Engine Consent, the Bills of Sale, the Ancillary Agreements
and the Participation Agreement (to the extent of amounts payable to the Owner
Trustee thereunder) (collectively, and together with the Lease, the Trust
Agreement and the Certificates, the "Indenture Documents"), including all
rights of the Owner Trustee to execute any election or option or to give or
receive any notice, consent, waiver or approval under or in respect of any of
the foregoing documents and instruments;
(4) All the tolls, rents, issues, profits, products, revenues and
other income (including sales proceeds) of the property subjected or required
to be subjected to the Lien of this Indenture, and all of the estate, right,
title and interest of the Owner Trustee in and to the same and every part of
said property;
(5) The Collateral Account, the Liquid Collateral and all other
moneys and securities (including Permitted Investments) now or hereafter paid
or deposited or required to be paid or deposited to or with the Indenture
Trustee by or for the account of the Owner Trustee pursuant to any term of any
Operative Agreement, except the Tax Indemnity Agreement, and held or required
to be held by the Indenture Trustee hereunder;
(6) All requisition proceeds with respect to the Aircraft or any part
thereof (to the extent of the Owner Trustee's interest therein pursuant to the
terms of the Lease) and all insurance proceeds with respect to the Aircraft or
any part thereof from insurance required to be maintained by the Lessee under
Article 13 of the Lease, but excluding any insurance maintained by the Lessee
and not required under Article 13 of the Lease; and
(7) All proceeds of the foregoing.
Notwithstanding the foregoing provisions:
(a) (i) whether or not an Indenture Event of Default shall occur and
be continuing, the Owner Trustee and any Owner Participant shall at all times
retain the right, to the exclusion of the Indenture Trustee, (A) to Excepted
Payments and to commence an action at law to obtain such Excepted Payments and
(B) to adjust Basic Rent and the percentages relating to Stipulated Loss Value
and Termination Value and the EBO Price as provided in Section 3.04 of the
Lease, (C) to exercise any election or option to make any decision or
determination, or to give or receive any notice, consent, waiver or approval,
or to take any other action in respect of, but in each case only to the extent
relating to, Excepted Payments (except for, in respect of Basic Rent
constituting an Excepted Payment, the manner by which such amount is paid),
(D) to retain the rights of the "Lessor" with respect to solicitations of
bids, and the election to retain the Aircraft pursuant to Article 10 of the
Lease, (E) to retain the right of "Lessor" to determine the Fair Market Rental
or Fair Market Value pursuant to Article 4 of the Lease, (F) to retain all
rights with respect to insurance maintained for its own account which Section
13.05 of the Lease specifically confers on the "Lessor" and (G) to exercise,
to the extent necessary to enable it to exercise its rights under Section 8.03
hereof, the rights of the "Lessor" under Section 17.04 of the Lease;
(ii) whether or not an Indenture Event of Default shall occur and be
continuing, the Owner Trustee and the Indenture Trustee shall each have the
rights separately but not to the exclusion of the other (agreement of both
required in the case of clause (E) below), (A) to receive from the Lessee all
notices, certificates, reports, filings, opinions of counsel, copies of all
documents and all information which the Lessee is permitted or required to
give or furnish to the "Lessor" pursuant to the Lease or to the Owner Trustee
pursuant to any other Operative Agreement, (B) to exercise inspection rights
pursuant to Section 14.01 of the Lease (provided that if an Indenture Event of
Default shall be continuing, no inspection right of the Owner Trustee shall
interfere with the efforts of the Indenture Trustee to exercise remedies under
the Lease or this Indenture), (C) to maintain separate insurance pursuant to
Section 13.05 of the Lease and to retain all rights with respect to such
insurance maintained for its own account, (D) to give any notice of default
under Section 16.01 of the Lease, and (E) the right to consent to changes to
the list of countries on Schedule III to the Participation Agreement;
(iii) (A) so long as no Indenture Event of Default shall have
occurred and be continuing (but subject to the provisions of Section 8.01
hereof), the Owner Trustee shall retain the right, to the exclusion of the
Indenture Trustee, to approve as satisfactory any accountants, engineers,
appraisers or counsel to render services for or issue appraisals, reports,
certificates or opinions to the Owner Trustee and to exercise all rights,
elections and options of the Lessor in connection with the return, renewal or
purchase of the Aircraft and to exercise rights with respect to the use,
operation, maintenance and modification of the Aircraft, in each case pursuant
to express provisions of the Operative Agreements (other than in connection
with an Event of Default), and (B) so long as no Indenture Event of Default
not constituting an Event of Default shall have occurred and be continuing
(but subject to the provisions of Section 8.01 hereof), the Owner Trustee
shall retain the right, jointly with the Indenture Trustee (agreement of both
not being required), to further assurances and financial information from the
Lessee pursuant to Section 19.01 of the Lease (other than the right to receive
any funds to be delivered to the "Lessor" under the Lease (except funds
delivered with respect to Excepted Payments);
(iv) at all times the Owner Trustee shall have the right as Lessor,
but not to the exclusion of the Indenture Trustee, to seek specific
performance of the covenants of the Lessee under the Lease relating to the
protection, insurance, maintenance, possession and use of the Aircraft; and
(v) at all times the Owner Trustee and the Owner Participant shall
have the rights granted to them under Articles VI, VIII and X and Section 7.02
hereof.
(b) The leasehold interest granted to the Lessee by the Lease shall
not be subject to the security interest granted by this Indenture, and nothing
in this Indenture shall affect the rights of the Lessee under the Lease so
long as no Event of Default has occurred and is continuing.
HABENDUM CLAUSE
TO HAVE AND TO HOLD the aforesaid property unto the Indenture Trustee,
its successors and assigns, in trust for the equal and ratable benefit and
security of the Holders from time to time of the Certificates, without any
priority of any one Certificate over any other and for the uses and purposes
and subject to the terms and conditions set forth in this Indenture.
It is expressly agreed that anything contained in this Indenture to
the contrary notwithstanding, the Owner Trustee shall remain liable under the
Indenture Documents to perform all of the obligations assumed by it under any
of those documents, all in accordance with and pursuant to the terms and
provisions of those documents, and the Indenture Trustee and the Holders of
the Certificates shall have no obligation or liability under the Indenture
Documents by reason of or arising out of the assignment under this Indenture,
nor shall the Indenture Trustee or the Holders of the Certificates be required
or obligated in any manner to perform or fulfill any obligations of the Owner
Trustee under or pursuant to the Indenture Documents or, except as expressly
provided in this Indenture, to make any payment, or to make any inquiry as to
the nature or sufficiency of any payment received by it, or present or file
any claim, or take any action to collect or enforce the payment of any amounts
which may have been assigned to it or to which it may be entitled at any time
or times.
Effective upon the occurrence and continuance of an Indenture Event of
Default, the Owner Trustee hereby constitutes the Indenture Trustee the true
and lawful attorney of the Owner Trustee, irrevocably, with full power (in the
name of the Owner Trustee or otherwise), subject to the terms and conditions
of this Indenture, to ask, require, demand, receive, compound and give
acquittance for any and all Basic Rent, Supplemental Rent payable to the Owner
Trustee, Stipulated Loss Value and Termination Value payments, insurance
proceeds and any and all moneys and claims for moneys due and to become due
under or arising out of the Lease (subject to Section 8.01 hereof) or the
other Indenture Documents (other than Excepted Payments), to endorse any
checks or other instruments or orders in connection with the same and to file
any claims, take any action or institute any proceeding which the Indenture
Trustee may deem to be necessary or advisable in the premises.
Under the Lease the Lessee is directed to make all payments of Rent
(other than Excepted Payments not constituting Basic Rent) payable to the
Owner Trustee and all other amounts (other than Excepted Payments not
constituting Basic Rent) which are required to be paid to or deposited with
the Owner Trustee pursuant to the Lease directly to the Indenture Trustee at
such address in the United States of America as the Indenture Trustee shall
specify for application as provided in this Indenture. The Owner Trustee
agrees that if, notwithstanding such provision, it shall have received any
such amounts, promptly on receipt of any such payment, it will transfer to the
Indenture Trustee any and all moneys from time to time received by the Owner
Trustee constituting part of the Trust Indenture Estate for distribution by
the Indenture Trustee pursuant to this Indenture, except that the Owner
Trustee shall accept for distribution pursuant to the Trust Agreement (i) any
amounts distributed to it by the Indenture Trustee under this Indenture, and
(ii) any Excepted Payments not constituting Basic Rent.
The Owner Trustee agrees that at any time and from time to time, upon
the written request of the Indenture Trustee, the Owner Trustee will promptly
and duly execute and deliver or cause to be duly executed and delivered any
and all such further instruments and documents as the Indenture Trustee may
reasonably deem desirable in obtaining the full benefits of the assignment
hereunder and of the rights and powers herein granted; provided, however, that
the Owner Trustee shall have no obligation to execute and deliver or cause to
be executed or delivered to the Indenture Trustee any such instrument or
document if such execution and delivery would result in the imposition of
additional liabilities on the Owner Trustee or any Owner Participant or would
result in a burden on such Owner Participant's business activities, unless the
Owner Trustee or such Owner Participant, as the case may be, is indemnified to
its reasonable satisfaction against any losses, liabilities and expenses
incurred in connection with such execution and delivery.
The Owner Trustee does hereby warrant and represent that it has not
assigned, pledged or otherwise disposed of, and hereby covenants that it will
not assign or pledge or otherwise dispose of, so long as the assignment
hereunder shall remain in effect and shall not have been terminated pursuant
to Section 14.01 hereof, any of its right, title or interest hereby assigned,
to anyone other than the Indenture Trustee, and that it will not, except in
respect of Excepted Payments or otherwise as provided in or permitted by this
Indenture, accept any payment from the Lessee or any sublessee (other than
Excepted Payments not constituting Basic Rent), enter into an agreement
amending or supplementing any of the Operative Agreements, execute any waiver
or modification of, or consent under the terms of any of the Operative
Agreements, settle or compromise any claim (other than claims in respect of
Excepted Payments) against the Lessee arising under any of the Operative
Agreements, or submit or consent to the submission of any dispute, difference
or other matter arising under or in respect of any of the Operative
Agreements, to arbitration thereunder.
Concurrently with the delivery of this Indenture, the Owner Trustee
has delivered to the Indenture Trustee executed counterparts of the Trust
Agreement and the chattel paper original counterpart of the Lease.
It is hereby further covenanted and agreed by and between the parties
as follows:
ARTICLE I
DEFINITIONS
Section 1.01. Definitions. Unless the context otherwise requires,
capitalized terms utilized herein shall have the meanings set forth in
Schedule II hereto for all purposes of this Indenture and shall be equally
applicable to both the singular and plural forms of the terms defined.
ARTICLE II
ISSUE, EXECUTION, FORM AND
REGISTRATION OF CERTIFICATES;
COLLATERAL ACCOUNT
Section 2.01. Authentication and Delivery of Certificates.
Forthwith upon the execution and delivery of this Indenture, and from time to
time thereafter, Certificates in an aggregate principal amount not in excess
of the amount specified in Section 2.04 hereof (except as otherwise provided
in Sections 2.06 and 2.07 hereof) shall be executed by the Owner Trustee and
delivered to the Indenture Trustee for authentication, and the Indenture
Trustee shall thereupon authenticate and deliver said Certificates to or upon
the oral or written order of the Owner Trustee, signed, if written, by an
authorized officer of the Owner Trustee, without any further action by the
Owner Trustee.
Section 2.02. Execution of Certificates. The Certificates shall be
signed on behalf of the Owner Trustee by an authorized officer of SSB. Such
signatures may be the manual or facsimile signatures of such officer and minor
errors or defects in any reproduction of any such signature shall not affect
the validity or enforceability of any Certificate which has been duly
authenticated and delivered by the Indenture Trustee.
In case any officer of SSB who shall have signed any of the
Certificates shall cease to be such officer before the Certificate so signed
shall be authenticated and delivered by the Indenture Trustee or disposed of
by SSB, such Certificate nevertheless may be authenticated and delivered or
disposed of as though the person who signed such Certificate had not ceased to
be such officer of SSB; and any Certificate may be signed on behalf of the
Owner Trustee by such person or persons as, at the actual date of the
execution of such Certificate, shall be the proper officers of SSB, although
at the date of the execution and delivery of this Indenture any such person
was not such an officer. Certificates bearing the facsimile signatures of
individuals who were authorized officers of SSB at the time such Certificates
were issued shall bind the Owner Trustee, notwithstanding that such
individuals or any of them have ceased to hold such offices prior to the
authentication and delivery of such Certificates or did not hold such offices
at the respective dates of such Certificates.
Section 2.03. Certificate of Authentication. Only such Certificates
as shall bear thereon a certificate of authentication substantially in the
form set forth in Exhibit B, executed by the Indenture Trustee by manual
signature of one of its authorized officers, shall be entitled to the security
and benefits of this Indenture or be valid or obligatory for any purpose.
Such certificate by the Indenture Trustee upon any Certificate executed by the
Owner Trustee shall be conclusive evidence that the Certificate so
authenticated has been duly authenticated and delivered hereunder and that the
Holder, as evidenced on the Register, is entitled to the security and benefits
of this Indenture.
Section 2.04. Form and Terms of Certificates; Payments of Principal,
Make-Whole Premium and Interest. The Certificates and the Indenture Trustee's
certificate of authentication shall be substantially in the form set forth in
Exhibit B hereto. Certificates may differ with respect to Maturity and as to
other terms. The Certificates shall be issuable as registered securities
without coupons and shall be numbered, lettered, or otherwise distinguished in
such manner or in accordance with such plans as the Owner Trustee executing
the same may determine with the approval of the Indenture Trustee.
The aggregate principal amount of Certificates that may be
authenticated and delivered under this Indenture is limited as provided in the
form of Certificate attached as Exhibit B hereto. The Certificates shall be
issued in registered form only and in denominations of $1,000 and any integral
multiple thereof, shall be dated the Certificate Closing Date, shall be issued
in three separate series consisting of Series A, Series B and Series C and
shall be issued in the Maturities and principal amounts, and shall bear
interest at the rates per annum, specified in the form of Certificate set forth
in Exhibit B.
Any of the Certificates may be issued with appropriate insertions,
omissions, substitutions and variations, and may have imprinted or otherwise
reproduced thereon such legend or legends, not inconsistent with the
provisions of this Indenture, as may be required to comply with any law or
with any rules or regulations pursuant thereto, or with the rules of any
securities market in which the Certificates are admitted to trading, or to
conform to general usage.
Each Certificate shall bear interest from the date of original
issuance thereof or from the most recent date to which interest has been paid
and duly provided for, as the case may be, which shall be payable on the dates
specified on the face of the form of Certificate set forth in Exhibit B hereto
until the principal thereof is paid. Interest shall be calculated on the
basis of a 360-day year of twelve 30-day months.
Notwithstanding the preceding paragraph, each Certificate shall bear
interest at the Past Due Rate on any principal, interest and any other amount
payable hereunder or under such Certificate, which shall not be paid in full
when due (whether at stated maturity, by acceleration, by mandatory prepayment
or otherwise), for the period from and including the due date thereof to but
excluding the date the same is paid in full, payable from time to time on
demand of the Indenture Trustee.
The principal of, and Make-Whole Premium, if any, and interest on, the
Certificates shall be payable at the Corporate Trust Department of the
Indenture Trustee or at any office or agency maintained for such purpose
pursuant to Section 3.02 hereof in immediately available funds prior to 10:30
A.M. (New York time) on the due date thereof and the Indenture Trustee shall
remit all such amounts received by it to the Holders at such account or
accounts at such financial institution or institutions as the Holders shall
have designated to the Indenture Trustee in writing, in immediately available
funds, such payment to be made if the payment was received prior to 10:30 A.M.
New York time by the Indenture Trustee on any Business Day, by 12:00 noon New
York time on such Business Day; otherwise, the Indenture Trustee shall make
payment promptly, but not later than 11:00 A.M. New York time on the next
succeeding Business Day; provided, however, that interest may be payable at the
option of the Indenture Trustee or its Paying Agent, as defined in Section
3.04, by mailing checks for such interest payable to or upon the written order
of the Holders entitled thereto as they shall appear on the Register. If any
amount payable under the Certificates, or under this Indenture, falls due on a
day that is not a Business Day, then such sum shall be payable on the next
succeeding Business Day, without (provided that payment is made on such next
succeeding Business Day) additional interest thereon for the period of such
extension.
The Holder at the close of business on any Record Date with respect
to any Payment Date shall be entitled to receive the interest if any payable
on such Payment Date notwithstanding any transfer or exchange of such
Certificate subsequent to the Record Date and prior to such Payment Date,
except if and to the extent the Owner Trustee shall default in the payment of
the interest due on such Payment Date, in which case such defaulted interest
shall be paid to the Holder at the close of business on a subsequent Record
Date (which shall be not less than five (5) or more than fifteen (15) Business
Days prior to the date of payment of such defaulted interest) established by
notice given by mail by or on behalf of the Owner Trustee to the Holders not
less than fifteen (15) days preceding such subsequent Record Date.
The Owner Trustee agrees to pay to the Indenture Trustee for
distribution in accordance with Section 5.04 hereof (a) any and all indemnity
amounts received by the Owner Trustee which are payable by the Lessee to (i)
the Indenture Trustee in its individual capacity, (ii) the Subordination Agent
or (iii) each Liquidity Provider, in each case pursuant to Article 8 or 9 of
the Participation Agreement (it being acknowledged that the Lessee has been
instructed to pay such amounts to the Person or Persons entitled thereto) and
(b) the Owner Trustee's pro rata share of all amounts owed to each Liquidity
Provider by the Subordination Agent under each Liquidity Facility other than
amounts due as (i) repayments of the principal of advances thereunder, and (ii)
interest on Interest Drawings and Final Drawings except to the extent included
in Net Interest and Related Charges. As used in this Section, the Owner
Trustee's pro rata share means as of any time:
(A) with respect to all amounts other than Net Interest and
Related Charges, a fraction the numerator of which is the aggregate
principal balance then outstanding of the Certificates issued under
this Indenture (other than the Series C Certificates) and the
denominator of which is the aggregate principal balance of all
Certificates issued under this Indenture and the Related Indentures
(other than the Series C Certificates), plus
(B) with respect to all Net Interest and Related Charges (x)
if there exists a Payment Default under any Certificate issued under
this Indenture a fraction, the numerator of which is the aggregate
principal balance then outstanding of Certificates issued under this
Indenture (other than the Series C Certificates) and the denominator
of which is the aggregate principal balance then outstanding of all
Certificates issued under this Indenture and the Related Indentures
(other than the Series C Certificates) under which there exists a
Payment Default or (y) at all other times, zero.
As used in this Section, "Net Interest and Related Charges" means the sum of
(i) the amount, if any, by which interest payable to each Liquidity Provider
on any Interest Drawing and/or Final Drawing exceeds the amount which would be
payable if such drawings bore interest at the weighted average Past Due Rate
applicable to amounts in default on all Certificates plus (ii) any amounts
payable under Section 3.01, Section 3.02, Section 3.03, Section 3.09 or
Section 7.07 of each Liquidity Facility (or similar provisions of any
replacement Liquidity Facility) which result from any Interest Drawing or
Final Drawing. As used in this Section, a Payment Default when used in
connection with a Certificate issued hereunder or a Certificate issued under
any Related Indenture means a default in the payment of principal thereof or
interest thereon (which default has not been cured), other than solely because
of acceleration. As used in this Section, "Related Indentures" means,
collectively, the Trust Indenture and Security Agreement for each of Federal
Express Corporation Trust Nos. N670FE, N671FE, N672FE, N673FE, N674FE and
N584FE, each dated as of May 1, 1997, between the Owner Trustee and the
Indenture Trustee, the Trust Indenture and Security Agreement for Federal
Express Corporation Trust No. N581FE, dated as of May 1, 1997, between
Wilmington Trust Company, as owner trustee and the Indenture Trustee, and the
Trust Indenture and Security Agreement for Federal Express Corporation Trust
No. N587FE, dated as of December 1, 1996, as amended and restated as of May 1,
1997, between Wilmington Trust Company, as owner trustee and the Indenture
Trustee.
Section 2.05. Payments from Trust Indenture Estate Only. All
payments to be made by the Owner Trustee under this Indenture shall be made
only from the income and the proceeds from the Lessor's Estate to the extent
included in the Trust Indenture Estate and from any other amounts of the type
described in Section 5.01 hereof to the extent actually received by the
Indenture Trustee and only to the extent that the Owner Trustee shall have
sufficient income or proceeds from the Lessor's Estate to the extent included
in the Trust Indenture Estate (and such other amounts) to enable the Indenture
Trustee to make distributions of the amounts due in respect of the
Certificates in accordance with the terms hereof and thereof. Each Holder by
its acceptance of a Certificate agrees that it will look solely to the income
and proceeds from the Trust Indenture Estate (and such other amounts of the
type described in Section 5.01 hereof to the extent actually received by the
Indenture Trustee) to the extent available for distribution to it as provided
herein and that neither the Owner Participant, the Owner Trustee, SSB nor the
Indenture Trustee is personally liable to such Holder for any amounts payable
under this Indenture or such Certificate or for any amounts payable or
liability under any Certificate or this Indenture, except as expressly
provided herein in the case of SSB, the Owner Trustee or the Indenture
Trustee.
SSB is not personally liable to any Holder, the Lessee, the Owner
Participant or the Indenture Trustee for any amounts payable under this
Indenture or for any liability under this Indenture or the Certificates,
except as a result of SSB's gross negligence or willful misconduct, or as
otherwise expressly provided herein or in the Participation Agreement.
If (1) all or any part of the Lessor's Estate becomes the property of
a debtor subject to the reorganization provisions of the Bankruptcy Code, (2)
pursuant to such reorganization provisions any Owner Participant is required,
by reason of such Owner Participant being held to have recourse liability to
the debtor or the trustee of the debtor directly or indirectly, to make
payment on account of any amount payable as principal of or interest,
Make-Whole Premium or other amounts payable on the Certificates, and (3) the
Indenture Trustee actually receives any Recourse Amount which reflects any
payment by an Owner Participant on account of (2) above, then the Indenture
Trustee shall promptly refund to each Owner Participant such Recourse Amount.
Nothing contained in this paragraph shall prevent the Indenture Trustee from
enforcing any personal recourse obligation (and retaining the proceeds
thereof) of any Owner Participant under the Participation Agreement, or from
retaining any amount paid by any Owner Participant under Sections 5.01, 8.02
and 8.03 hereof.
Section 2.06. Registration, Transfer and Exchange. The Indenture
Trustee will keep, on behalf of the Owner Trustee, at each office or agency to
be maintained for the purpose as provided in Section 3.02 hereof a Register or
Registers on which, subject to such reasonable regulations as it may
prescribe, it will register, and will register the transfer of, Certificates
as provided in this Article. Such Register shall be in written form in the
English language or in any other form capable of being converted into such
form within a reasonable period of time.
Upon due presentation for registration of transfer of any Certificate
at any such office or agency, the Owner Trustee shall execute and the
Indenture Trustee shall authenticate and deliver in the name of the transferee
or transferees a new Certificate or Certificates of the same Series and
Maturity, principal amount and interest rate and in authorized denominations
for an equal aggregate principal amount; provided, that such Certificate being
transferred shall be cancelled in accordance with Section 2.08 hereof
simultaneously with the issuance of the new Certificate.
Any Certificate or Certificates may be exchanged for a Certificate or
Certificates of the same Series and Maturity and interest rate but in other
authorized denominations, in an equal aggregate principal amount.
Certificates to be exchanged shall be surrendered at any office or agency to
be maintained by the Indenture Trustee for the purpose as provided in Section
3.02 hereof, and the Owner Trustee shall execute and the Indenture Trustee
shall authenticate and deliver in exchange therefor the Certificate or
Certificates which the Holder making the exchange shall be entitled to
receive, bearing numbers not contemporaneously or previously outstanding.
All Certificates presented for registration of transfer, exchange,
prepayment or payment shall (if so required by the Owner Trustee or the
Indenture Trustee) be duly endorsed by, or be accompanied by a written
instrument or instruments of transfer in form satisfactory to the Owner
Trustee and the Indenture Trustee duly executed by the Holder or its attorney
duly authorized in writing and the Indenture Trustee may require evidence
satisfactory to it as to the compliance of any such transfer with the
Securities Act.
The Indenture Trustee may require payment from the Holder of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any exchange or registration of transfer of Certificates. No
service charge shall be levied for any such transaction.
The Indenture Trustee shall not be required to exchange or register a
transfer of any Certificates (a) for a period of fifteen (15) days immediately
preceding the first mailing of notice of prepayment of such Certificates or
(b) with respect to which notice of prepayment has been given pursuant to
Section 6.03 hereof and such notice has not been revoked.
All Certificates issued upon any transfer or exchange of Certificates
shall be valid obligations of the Owner Trustee, evidencing the same debt, and
entitled to the same security and benefits under this Indenture, as the
Certificates surrendered upon such transfer or exchange.
Section 2.07. Mutilated, Defaced, Destroyed, Lost and Stolen
Certificates. In case any temporary or definitive Certificate shall become
mutilated, defaced or be apparently destroyed, lost or stolen, the Owner
Trustee in its discretion may execute, and upon the oral or written request of
any officer of SSB, the Indenture Trustee shall authenticate and deliver, a
new Certificate of like Maturity, principal amount and interest rate as the
Certificate being replaced, bearing a number not contemporaneously or
previously outstanding, in exchange and substitution for the mutilated or
defaced Certificate, or in lieu of and substitution for the Certificate so
apparently destroyed, lost or stolen. In the case of any Certificate so
apparently destroyed, lost or stolen, the applicant for a substitute
Certificate shall furnish to the Owner Trustee and to the Indenture Trustee
such security or indemnity as may be required by them to indemnify and defend
and to hold each of them harmless and evidence to their satisfaction of the
apparent destruction, loss or theft of such Certificate and of the ownership
thereof.
Upon the issuance of any substitute Certificate, the Owner Trustee or
the Indenture Trustee may require payment from the Holder of a sum sufficient
to cover any tax or other governmental charge that may be imposed in relation
thereto and any other reasonable expenses incurred in connection therewith.
In case any Certificate which has matured or is about to mature, or has been
called for prepayment in full, shall become mutilated or defaced or be
apparently destroyed, lost or stolen, the Owner Trustee may, instead of
issuing a substitute Certificate, pay or authorize the payment of the same
(without surrender thereof except in the case of a mutilated or defaced
Certificate), if the applicant of any Certificate so apparently destroyed,
lost or stolen, for such payment shall furnish to the Owner Trustee and to the
Indenture Trustee such security or indemnity as any of them may require to
hold each of them harmless and the applicant shall also furnish to the Owner
Trustee and the Indenture Trustee evidence to their satisfaction of the
apparent destruction, loss or theft of such Certificate and of the ownership
thereof.
Every substitute Certificate issued pursuant to the provisions of
this Section by virtue of the fact that any Certificate is apparently
destroyed, lost or stolen shall constitute an original additional contractual
obligation of the Owner Trustee, whether or not the apparently destroyed, lost
or stolen Certificate shall be enforceable at any time by anyone and shall be
entitled to all the security and benefits of (but shall be subject to all the
limitations of rights set forth in) this Indenture equally and proportionately
with any and all other Certificates duly authenticated and delivered
hereunder. All Certificates shall be held and owned upon the express
condition that, to the extent permitted by law, the foregoing provisions are
exclusive with respect to the replacement or payment of mutilated, defaced, or
apparently destroyed, lost or stolen Certificates and shall preclude any and
all other rights or remedies notwithstanding any law or statute existing or
hereafter enacted to the contrary with respect to the replacement or payment
of negotiable instruments or other securities without their surrender.
Section 2.08. Cancellation of Certificates; Destruction Thereof. All
Certificates surrendered for payment, prepayment, registration of transfer or
exchange, if surrendered to the Owner Trustee or any agent of the Owner
Trustee or the Indenture Trustee, shall be delivered to the Indenture Trustee
for cancellation or, if surrendered to the Indenture Trustee, shall be
cancelled by it; and no Certificates shall be issued in lieu thereof except as
expressly permitted by any of the provisions of this Indenture. The Indenture
Trustee shall destroy cancelled Certificates held by it and deliver a
certificate of destruction to the Owner Trustee. If the Owner Trustee shall
acquire any of the Certificates, such acquisition shall not operate as a
prepayment or satisfaction of the indebtedness represented by such
Certificates unless and until the same are delivered to the Indenture Trustee
for cancellation.
Section 2.09. Temporary Certificates. Pending the preparation of
definitive Certificates, the Owner Trustee may execute and, upon the oral or
written request of an officer of SSB, the Indenture Trustee shall authenticate
and deliver temporary Certificates (printed, lithographed, typewritten or
otherwise reproduced, in each case in form satisfactory to the Indenture
Trustee). Temporary Certificates shall be issuable as registered Certificates
without coupons, of any authorized denomination, and substantially in the form
of the definitive Certificates but with such omissions, insertions and
variations as may be appropriate for temporary Certificates, all as may be
determined by the Owner Trustee with the concurrence of the Indenture Trustee.
Temporary Certificates may contain such reference to any provisions of this
Indenture as may be appropriate. Every temporary Certificate shall be
executed by the Owner Trustee and, upon the oral or written request of an
authorized officer of the Owner Trustee, be authenticated by the Indenture
Trustee upon the same conditions and in substantially the same manner, and
with like effect, as the definitive Certificates. Without unreasonable delay
the Owner Trustee shall execute and shall furnish definitive Certificates and
thereupon temporary Certificates shall be surrendered in exchange therefor
without charge at any office or agency to be maintained by the Indenture
Trustee for the purpose pursuant to Section 3.02 hereof, and, upon the oral
or written request of an authorized officer of the Owner Trustee, the
Indenture Trustee shall authenticate and deliver in exchange for such
temporary Certificates an equal aggregate principal amount of definitive
Certificates of the same Series and Maturities and interest rates and in
authorized denominations. Until so exchanged, temporary Certificates shall be
entitled to the same security and benefits under this Indenture as definitive
Certificates.
Section 2.10. Termination of Interest in Trust Indenture Estate. A
Holder shall not, as such, have any further interest in, or other right with
respect to, the Trust Indenture Estate when and if the principal amount of and
Make-Whole Premium, if any, and interest on and other amounts due under all
Certificates held by such Holder and all other sums payable to such Holder
hereunder and under the other Operative Agreements shall have been paid in
full.
Section 2.11. Certificates in Respect of Replacement Airframe. Upon
the execution and delivery of an Indenture and Security Agreement Supplement
covering a Replacement Airframe and/or Replacement Engine, as provided in
Section 9.09 hereof, each Certificate shall be deemed to have been issued in
connection with such Replacement Airframe and/or Replacement Engine and each
Certificate issued thereafter upon a transfer or exchange of, or as a
replacement for, a Certificate, shall be designated as having been issued in
connection with such Replacement Airframe and/or Replacement Engine, but
without any other change therein except as provided for in this Article II.
Section 2.12. Assumption of Obligations Under Certificates and Other
Operative Agreements. If, in accordance with and subject to the satisfaction
of the conditions set forth in Section 7.11 of the Participation Agreement,
the Lessee shall assume all of the obligations of the Owner Trustee hereunder,
under the Certificates and all other Operative Agreements, the Owner
Participant and the Owner Trustee shall be released and discharged from any
further obligations hereunder and under the
Certificates and all other Operative Agreements (except any obligations that
have accrued prior to such assumption).
Section 2.13. Establishment of Collateral Account. (a) The
Indenture Trustee shall, pursuant to the Collateral Account Control Agreement,
establish, or cause to be established, with State Street Bank and Trust
Company, who shall represent and warrant that it is a financial intermediary
(as defined in Section 8-313(4) of the Connecticut Uniform Commercial Code),
in its name as secured party hereunder an Eligible Deposit Account entitled
"First Security Bank, National Association, as secured party under the Trust
Indenture and Security Agreement (Federal Express Corporation Trust No.
N583FE) dated as of May 1, 1997, with the Owner Trustee referred to therein".
(b) If at any time the Collateral Account ceases to be an Eligible
Deposit Account, the Indenture Trustee shall within two (2) Business Days,
establish a new Collateral Account meeting the conditions specified in the
definition of Eligible Deposit Account, and shall transfer any cash or any
investments in the Collateral Account to such new Collateral Account.
(c) The Indenture Trustee shall have exclusive dominion and control
of the Collateral Account and all funds therein, and shall make withdrawals
from the Collateral Account only in accordance with this Indenture.
(d) The Collateral Account Control Agreement shall require State
Street Bank and Trust Company to send confirmation to the Indenture Trustee
and the Lessee that it has credited the Specified Investments to the
Collateral Account and to make appropriate entries on its books identifying
the Specified Investments as pledged to the Indenture Trustee.
Section 2.14. Investment of Funds on Deposit in the Collateral
Account. (a) Funds deposited in the Collateral Account shall be invested and
reinvested by the Indenture Trustee, subject to Section 17.02 of the
Participation Agreement, at the risk of the Owner Trustee, in Specified
Investments selected by the Lessee and approved by the Indenture Trustee for
the account of the Owner Trustee in accordance with Section 2.14(b) below;
provided, however, that if Specified Investments meeting the requirements of
Section 2.14(b) are not available on any day on which funds are to be invested
as contemplated by the preceding provisions of this Section 2.14(a), the
Indenture Trustee may leave such funds in the Collateral Account uninvested
until the earliest of (i) the date on which an appropriate Specified
Investment becomes available, (ii) the Delivery Date and (iii) the Cut-Off
Date. The Indenture Trustee shall maintain possession of the negotiable
instruments or securities, if any, evidencing such Specified Investments and,
in the case of any Specified Investments in book-entry form, such Specified
Investments shall be credited to an account of the Indenture Trustee or a
financial intermediary with the applicable Federal Reserve Bank; provided,
however, if the account is credited to the financial intermediary, the
financial intermediary shall make written confirmation thereof to the
Indenture Trustee and make an appropriate entry on its books identifying the
Specified Investments as pledged to the Indenture Trustee. All proceeds of
and any income, interest and other payments and distributions on or with
respect to any Specified Investments shall be deposited in or credited to the
Collateral Account and thereafter shall be held, invested and applied by the
Indenture Trustee in accordance with this Indenture. The Indenture Trustee
shall promptly notify the Owner Trustee and the Lessee of any Losses.
(b) On the Certificate Closing Date, the Indenture Trustee shall
invest the amount deposited in the Collateral Account pursuant to Section
2.01(c) of the Participation Agreement in Specified Investments selected by
the Lessee and approved by the Indenture Trustee for the account of the Owner
Trustee which mature on or prior to September 15, 1997. If the Delivery Date
is postponed pursuant to Section 3.02(b) or Section 3.03 of the Participation
Agreement, the proceeds of the Specified Investments referred to in the
preceding sentence may be invested in Specified Investments which mature
within 14 days after the rescheduled Delivery Date. If no Delivery Date
occurs, then any Specified Investment shall mature no later than the 15th day
after the Cut-Off Date.
(c) If for any reason the Indenture Trustee shall be required to
make any distributions of the Liquid Collateral prior to the maturity date of
any Specified Investment, the Indenture Trustee shall cause the same to be
sold in accordance with standard commercial practices, and the Lessee, for the
account of the Owner Trustee, shall forthwith compensate the Indenture Trustee
for any Losses as provided in Section 17.02(a) of the Participation Agreement.
(d) Pursuant to Section 17.02(b) of the Participation Agreement,
interest payable on the Certificates during the period in which funds are on
deposit in the Collateral Account shall be paid by the Lessee.
Section 2.15. Release of Debt Portion and Lien on the Collateral
Account and the Liquid Collateral on Delivery Date. (a) Subject to the
satisfaction or waiver of the conditions precedent to the Indenture Trustee's
obligations set forth in Section 4.02 of the Participation Agreement, on the
Delivery Date, subject to the proviso to Section 3.02(a) of the Participation
Agreement, the Indenture Trustee shall release from the Collateral Account an
amount of Liquid Collateral, equal to the lesser of (A) the Debt Portion and
(B) the amount actually in the Collateral Account on the Delivery Date.
Subject to the proviso to Section 3.02(a) of the Participation Agreement, such
amount so released, together with the amount of any Losses received from the
Lessee pursuant to Section 17.02(a) of the Participation Agreement, shall be
used to finance a portion of the Purchase Price as contemplated by Section
3.02(a) of the Participation Agreement. Any amount remaining in the
Collateral Account after such release (net of any uncompensated Losses) shall
be remitted by the Indenture Trustee on behalf of the Owner Trustee to the
Lessee pursuant to Section 3.02(a)(B) of the Participation Agreement.
(b) The Lien of this Indenture on the Collateral Account and the
Liquid Collateral shall terminate on the Delivery Date following the transfer
of amounts described in Section 3.02(a) of the Participation Agreement.
Section 2.16. Cut-Off Date. In the case of a prepayment under
Section 6.02(a)(vi) hereof, the Indenture Trustee shall release from the
Collateral Account all amounts held in the Collateral Account on such date.
Such amount so released, together with the amount of any Losses received from
the Lessee pursuant to Sections 17.02(a) and 17.02(c) of the Participation
Agreement, shall be applied to pay amounts due under Section 6.02(b)(1) hereof
on the 15th day following the Cut-Off Date, and any amount (net of any
uncompensated Losses) remaining after such release and application shall be
remitted by the Indenture Trustee, on behalf of the Owner Trustee, to the
Lessee.
Section 2.17. Subordination. (a) The Owner Trustee and, by
acceptance of its Certificates of any Series, each Holder of such Series,
hereby agree that no payment or distribution shall be made on or in respect of
the Secured Obligations owed to such Certificate Holder of such Series,
including any payment or distribution of cash, property or securities after
the commencement of a proceeding of the type referred to in clause (v), (vi)
or (vii) of Section 7.01 hereof, except as expressly provided in Article V
hereof.
(b) By the acceptance of its Certificates of any Series
(other than Series A), each Holder of such Series agrees that in the event
that such Holder, in its capacity as a Holder, shall receive any payment or
distribution on any Secured Obligations in respect of such Series which it is
not entitled to received under this Section 2.17 or Article V hereof, it will
hold any amount so received in trust for the Senior Holder (as defined in
Section 2.17(c) hereof) and will forthwith turn over such payment to the
Indenture Trustee in the form received to be applied as provided in Article V
hereof.
(c) As used in this Section 2.17, the term "Senior Holder"
shall mean, (i) the Holders of Series A Certificates until the Secured
Obligations in respect of Series A Certificates have been paid in full, (ii)
after the Secured Obligations in respect of Series A Certificates have been
paid in full, the Holders of Series B Certificates until the Secured
Obligations in respect of Series B Certificates have been paid in full and
(iii) after the Secured Obligations in respect of Series B Certificates have
been paid in full, the Holders of Series C Certificates until the Secured
Obligations in respect of Series C Certificates have been paid in full.
Section 2.18. Reoptimization. The Owner Trustee shall have the
right, on the Reoptimization Date, to modify the schedule of principal
payments of the Certificates subject to the terms and conditions set forth in
Section 2.03(b) of the Participation Agreement. To give effect to the
foregoing the Indenture Trustee shall execute an amendment to this Indenture
which shall amend Section 6.06 hereof to set forth the new schedule of
principal payments and Schedule I to each Certificate shall be amended
accordingly. The Indenture Trustee shall deliver such amendments to the
Subordination Agent on behalf of the Pass Through Trustee for each of the Pass
Through Trusts. To the extent that such amendment of this Indenture occurs
later than the Delivery Date, this Indenture, as amended, shall, if required,
be duly filed for recordation with the Aeronautics Authority.
ARTICLE III
COVENANTS
Section 3.01. Payment of Principal, Make-Whole Premium and Interest.
The Owner Trustee covenants and agrees that it will, subject to Section 2.05
hereof, duly and punctually pay or cause to be paid the principal of, and
interest and Make-Whole Premium, if any, and all other amounts due on, each of
the Certificates and under this Indenture at the place or places, at the
respective times and in the manner provided in this Indenture and in the
Certificates.
Principal and interest and other amounts due hereunder or under the
Certificates shall be payable in dollars on the due date thereof, to the
Indenture Trustee at the Corporate Trust Department (or such other account at
such other financial institution as the Indenture Trustee may designate for
the purpose). If any amount payable under the Certificates or under this
Indenture falls due on a day which is not a Business Day, then such sum shall
be payable on the next succeeding Business Day, without (provided that payment
is made on such next succeeding Business Day) additional interest thereon for
the period of such extension.
Section 3.02. Offices for Payments, etc. So long as any of the
Certificates remain outstanding, the Indenture Trustee will maintain the
following: (a) an office or agency where the Certificates may be presented
for payment and (b) a facility or agency in New York, New York where the
Certificates may be presented for registration of transfer and for exchange
and for prepayment as provided in this Indenture (the "Registrar"). The
Registrar shall keep a register (the "Register") with respect to the
Certificates and their transfer and exchange. The Indenture Trustee may
appoint one or more co-registrars ("Co-Registrars") for the Certificates and
may terminate any such appointment at any time upon written notice. The term
"Registrar" includes any Co-Registrar.
The Indenture Trustee shall initially act as Registrar.
Section 3.03. Appointment to Fill a Vacancy in Office of Indenture
Trustee. The Owner Trustee, whenever necessary to avoid or fill a vacancy in
the office of Indenture Trustee, will, with the consent of the Lessee,
appoint, in the manner provided in Section 12.02 hereof, an Indenture Trustee,
so that there shall at all times be an Indenture Trustee hereunder.
Section 3.04. Paying Agents. Whenever the Indenture Trustee in its
sole discretion shall appoint a paying agent (the "Paying Agent"), it will
cause the Paying Agent to execute and deliver an instrument in which the
Paying Agent shall agree with the Indenture Trustee, subject to the provisions
of this Section:
(a) that it will hold all sums received by it as such agent for the
payment of the principal of, and interest and Make-Whole Premium, if any,
on the Certificates (whether such sums have been paid to it by the
Indenture Trustee or the Owner Trustee) in trust for the benefit of the
Holders or of the Indenture Trustee, and
(b) that it will give the Indenture Trustee notice of any failure by
the Owner Trustee to make any payment of the principal of or interest or
Make-Whole Premium, if any, on the Certificates when the same shall be due
and payable.
Anything in this Section to the contrary notwithstanding, the
agreements to hold sums in trust as provided in this Section are subject to
the provisions of Sections 14.03 and 14.04 hereof.
Section 3.05. Covenants of SSB and the Owner Trustee.
(a) SSB hereby covenants and agrees to perform its covenants set
forth in Sections 7.04(b) and 7.04(c) of the Participation Agreement.
(b) The Owner Trustee hereby covenants and agrees as follows:
(i) in the event a Responsible Officer of the Owner Trustee shall have
actual knowledge of an Indenture Event of Default, an Indenture Default or
an Event of Loss, the Owner Trustee will give prompt written notice of such
Indenture Event of Default, Indenture Default or Event of Loss to the
Indenture Trustee, the Lessee and the Owner Participant;
(ii) the Owner Trustee will furnish to the Indenture Trustee,
promptly upon receipt thereof, duplicates or copies of all reports,
notices, requests, demands, certificates, financial statements and other
instruments furnished to the Owner Trustee under the Lease, including,
without limitation, a copy of each report or notice received pursuant to
Article 11 of the Lease, to the extent that the same shall not have been
furnished to the Indenture Trustee;
(iii) the Owner Trustee will not enter into any business or other
activity other than the business of owning the Aircraft, the leasing
thereof to the Lessee and the carrying out of the transactions contemplated
hereby and by the Lease, the Participation Agreement, the Trust Agreement
and the other Indenture Documents; and
(iv) except as contemplated by the Operative Agreements, the Owner
Trustee will not contract for, create, incur or assume any debt, and will
not guarantee (directly or indirectly or by an instrument having the effect
of assuring another's payment or performance on any obligation or
capability of so doing, or otherwise), endorse or otherwise take action to
become contingently liable, directly or indirectly, in connection with the
debt of any other Person.
Section 3.06. [Reserved]
Section 3.07. Disposal of Trust Indenture Estate. At any time and
from time to time any part of the Trust Indenture Estate may be sold or
disposed of in accordance with the provisions of this Indenture and the Lease.
The Indenture Trustee shall, from time to time, release any part of the Trust
Indenture Estate so sold or disposed of or as to which an Event of Loss has
occurred or as to which the Lease has been terminated from the Lien of this
Indenture. In addition, to the extent that such property constitutes an
Airframe or Engine, the further requirements of Section 9.08 hereof shall be
complied with.
Section 3.08. No Representations or Warranties as to Aircraft or
Documents. NONE OF THE INDENTURE TRUSTEE, THE OWNER TRUSTEE OR SSB MAKES OR
SHALL BE DEEMED TO HAVE MADE ANY REPRESENTATION OR WARRANTY, EXPRESS OR
IMPLIED, AS TO THE TITLE, AIRWORTHINESS, WORKMANSHIP, VALUE, CONDITION,
DESIGN, COMPLIANCE WITH SPECIFICATIONS, MERCHANTABILITY OR FITNESS FOR ANY
PARTICULAR USE OR PURPOSE OF THE AIRCRAFT OR ANY ENGINE, AS TO THE ABSENCE OF
ANY INFRINGEMENT OF ANY PATENT, TRADEMARK OR COPYRIGHT, AS TO THE ABSENCE OF
OBLIGATIONS BASED ON STRICT LIABILITY IN TORT OR ANY OTHER REPRESENTATION OR
WARRANTY WITH RESPECT TO THE AIRCRAFT OR ANY ENGINE WHATSOEVER, except that
SSB warrants that on the Delivery Date (a) the Owner Trustee shall have
received whatever title was conveyed to it by the Lessee, and (b) the Aircraft
shall be free and clear of Lessor's Liens attributable to SSB. Neither SSB
nor the Indenture Trustee makes or shall be deemed to have made any
representation or warranty as to the validity, legality or enforceability of
this Indenture, the Trust Agreement, the Certificates or any Indenture
Document or as to the correctness of any statement contained in any thereof,
except for the representations and warranties of SSB and the Indenture Trustee
made under this Indenture or in the Participation Agreement.
Section 3.09. Further Assurances; Financing Statements. At any time
and from time to time, upon the request of the Indenture Trustee or the
Lessee, the Owner Trustee shall promptly and duly execute and deliver any and
all such further instruments and documents as may be specified in such request
and as are necessary or advisable to perfect, preserve or protect the Liens
and assignments created or intended to be created hereby, or to obtain for the
Indenture Trustee the full benefit of the specific rights and powers granted
herein, including, without limitation, the execution and delivery of Uniform
Commercial Code financing statements and continuation statements with respect
thereto, or similar instruments relating to the perfection of the Liens or
assignments created or intended to be created hereby.
ARTICLE IV
HOLDER LISTS
Section 4.01. Holder Lists; Ownership of Certificates. (a) The
Indenture Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
the Holders. If the Indenture Trustee is not the Registrar, the Registrar
shall furnish to the Indenture Trustee semi-annually not more than ten (10)
days after each Record Date, as of such Record Date, or at such other times as
the Indenture Trustee may request in writing, a list, in such form and as of
such date as the Indenture Trustee may reasonably require, containing all the
information in the possession or control of the Registrar as to the names and
addresses of the Holders and the amounts and Maturities of the Certificates
held by such Holders.
(b) Ownership of the Certificates shall be proved by the Register
kept by the Registrar.
ARTICLE V
RECEIPT, DISTRIBUTION AND APPLICATION OF
INCOME FROM THE TRUST INDENTURE ESTATE
Section 5.01. Basic Rent Distribution. Except as otherwise provided
in Section 5.03 hereof, each installment of Basic Rent, any payment of
interest on overdue installments of Basic Rent, any payment received by the
Indenture Trustee pursuant to Section 8.03(a) hereof and any payment received
by the Indenture Trustee pursuant to Section 17.02(b) or 17.02(c) of the
Participation Agreement shall be promptly distributed in the following order
of priority:
first, (i) so much of such installment or payment as shall be
required to pay in full the aggregate amount of the payment or
payments of Principal Amount and interest and other amounts (as
well as any interest on any overdue Principal Amount and, to the
extent permitted by applicable law, on any overdue interest and
any other overdue amounts) then due under all Series A
Certificates shall be distributed to the Holders of Series A
Certificates ratably, without priority of one over the other, in
the proportion that the amount of such payment or payments then
due under each Series A Certificate bears to the aggregate amount
of the payments then due under all Series A Certificates;
(ii) after giving effect to paragraph (i) above, so much of
such installment or payment as shall be required to pay in full
the aggregate amount of the payment or payments of Principal
Amount and interest and other amounts (as well as any interest on
any overdue Principal Amount and, to the extent permitted by
applicable law, on any overdue interest and any other overdue
amounts) then due under all Series B Certificates shall be
distributed to the Holders of Series B Certificates ratably,
without priority of one over the other, in the proportion that the
amount of such payment or payments then due under each Series B
Certificate bears to the aggregate amount of the payments then due
under all Series B Certificates; and
(iii) after giving effect to paragraph (ii) above, so much of
such installment or payment as shall be required to pay in full
the aggregate amount of the payment or payments of Principal
Amount and interest and other amounts (as well as any interest on
any overdue Principal Amount and, to the extent permitted by
applicable law, on any overdue interest and any other overdue
amounts) then due under all Series C Certificates shall be
distributed to the Holders of Series C Certificates ratably,
without priority of one over the other, in the proportion that the
amount of such payment or payments then due under each Series C
Certificate bears to the aggregate amount of the payments then due
under all Series C Certificates; and
second, the balance if any of such installment or payment remaining
thereafter shall be distributed to the Owner Trustee, or as the
Owner Trustee may request, for distribution pursuant to the Trust
Agreement.
Section 5.02. Event of Loss and Replacement; Prepayment. (a)
Except as otherwise provided in Section 5.03 hereof, any payment received by
the Indenture Trustee as the result of an Event of Loss with respect to the
Aircraft (including pursuant to Section 11.03(e) of the Lease, but, in the
case of said Section 11.03(e), subject to the time limits specified therein)
or as the result of, or in connection with any event under the Lease giving
rise to, a prepayment pursuant to Section 6.02 hereof, shall be promptly
distributed by the Indenture Trustee in the following order of priority:
first, to reimburse the Indenture Trustee for any costs or expenses
reasonably incurred in connection with such prepayment,
second, (i) to pay the amounts specified in paragraph (i) of clause
"second" of Section 5.03 hereof then due and payable in respect
of the Series A Certificates;
(ii) after giving effect to paragraph (i) above, to pay the
amounts specified in paragraph (ii) of clause "second" of Section
5.03 hereof then due and payable in respect of the Series B
Certificates; and
(iii) after giving effect to paragraph (ii) above, to pay the
amounts specified in paragraph (iii) of clause "second" of
Section 5.03 hereof then due and payable in respect of the Series
C Certificates; and
provided that payments pursuant to this clause "second" shall be
made without the payment of Make-Whole Premium except in the
particular circumstances provided in Section 6.02(b) hereof; and
third, as provided in clause "third" of Section 5.03 hereof;
provided that if a Replacement Airframe shall be substituted for an Airframe
subject to an Event of Loss as provided in Section 11.03 of the Lease and
Section 9.08 hereof, any proceeds which result from such Event of Loss and are
paid to the Indenture Trustee shall be held by the Indenture Trustee as part
of the Trust Indenture Estate and, unless otherwise applied pursuant to
Section 5.01 or 5.03 hereof, such proceeds shall be released to the Lessee
upon the release of such damaged Airframe and the replacement thereof as
herein provided.
(b) Any amounts received directly or indirectly from any governmental
authority, insurer or other party pursuant to any provision of Article 11 or
13 of the Lease as the result of loss or damage not constituting an Event of
Loss (x) with respect to the Aircraft, or as a result of such loss or damage
constituting an Event of Loss if and to the extent that such amounts would at
the time be required to be paid to the Lessee pursuant to said Article 11 or
13 but for the fact that an Event of Default shall have occurred and be
continuing or (y) are pledged to the Lessor as security in connection with an
Event of Loss in accordance with Section 11.03(e) of the Lease, shall be held
by the Indenture Trustee as security for the obligations of the Lessee under
the Lease and the Participation Agreement and shall be invested in accordance
with the terms of Section 5.08 hereof and at such time as the conditions for
payment to the Lessee specified in said Article 11 or 13, as the case may be,
shall be fulfilled and there shall not be continuing any Event of Default,
such amount, and the proceeds of any investment thereof, shall, to the extent
not theretofore applied, be paid to the Lessee to the extent provided in the
Lease.
Section 5.03. Payment After Indenture Event of Default, etc. Except
as otherwise provided in Sections 5.02(b), 5.04(b), 5.04(c) and 5.05 hereof,
all payments (other than Excepted Payments) received and all amounts held or
realized by the Indenture Trustee (a) after an Indenture Event of Default
shall have occurred and so long as such an Indenture Event of Default shall be
continuing, and after the Indenture Trustee has received a request to
accelerate the Certificates in accordance with Section 7.10 hereof, or (b)
after the Certificates shall have become due and payable as provided in
Section 7.02(b) or (c) hereof, shall be promptly distributed by the Indenture
Trustee in the following order of priority:
first, so much of such payments or amounts as shall be required to
reimburse the Indenture Trustee for any tax, expense, charge or
other loss (including, without limitation, all amounts to be
expended at the expense of, or charged upon the tolls, rents,
revenues, issues, products and profits of, the property included
in the Trust Indenture Estate pursuant to Section 7.03(b) hereof)
incurred by the Indenture Trustee (to the extent not previously
reimbursed) (including, without limitation, the expenses of any
sale, taking or other proceeding, attorneys' fees and expenses,
court costs, and any other expenditures incurred or expenditures
or advances made by the Indenture Trustee or the Holders in the
protection, exercise or enforcement of any right, power or remedy
or any damages sustained by the Indenture Trustee or the Holders,
liquidated or otherwise, upon such Indenture Event of Default)
shall be applied by the Indenture Trustee as between itself and
the Holders in reimbursement of such expenses;
second, (i) so much of such payments or amounts remaining as shall be
required to pay in full the aggregate unpaid Principal Amount of
all Series A Certificates, and the accrued but unpaid interest
and other amounts due thereon and all other Secured Obligations
(other than Make-Whole Premium) in respect of the Series A
Certificates to the date of distribution, shall be distributed to
the Holders of Series A Certificates, and in case the aggregate
amount so to be distributed shall be insufficient to pay in full
as aforesaid, then ratably, without priority of one over the
other, in the proportion that the aggregate unpaid Principal
Amount of all Series A Certificates held by each holder plus the
accrued but unpaid interest and other amounts due hereunder or
thereunder (other than Make-Whole Premium) to the date of
distribution, bears to the aggregate unpaid Principal Amount of
all Series A Certificates held by all such holders plus the
accrued but unpaid interest and other amounts due thereon (other
than Make-Whole Premium) to the date of distribution;
(ii) after giving effect to paragraph (i) above, so much of
such payments or amounts remaining as shall be required to pay in
full the aggregate unpaid Principal Amount of all Series B
Certificates, and the accrued but unpaid interest and other
amounts due thereon and all other Secured Obligations (other than
Make-Whole Premium) in respect of the Series B Certificates to
the date of distribution, shall be distributed to the Holders of
Series B Certificates, and in case the aggregate amount so to be
distributed shall be insufficient to pay in full as aforesaid,
then ratably, without priority of one over the other, in the
proportion that the aggregate unpaid Principal Amount of all
Series B Certificates held by each holder plus the accrued but
unpaid interest and other amounts due hereunder or thereunder
(other than Make-Whole Premium) to the date of distribution,
bears to the aggregate unpaid Principal Amount of all Series B
Certificates held by all such holders plus the accrued but unpaid
interest and other amounts due thereon (other than Make-Whole
Premium) to the date of distribution; and
(iii) after giving effect to paragraph (ii) above, so much of
such payments or amounts remaining as shall be required to pay in
full the aggregate unpaid Principal Amount of all Series C
Certificates, and the accrued but unpaid interest and other
amounts due thereon and all other Secured Obligations (other than
Make-Whole Premium) in respect of the Series C Certificates to
the date of distribution, shall be distributed to the Holders of
Series C Certificates, and in case the aggregate amount so to be
distributed shall be insufficient to pay in full as aforesaid,
then ratably, without priority of one over the other, in the
proportion that the aggregate unpaid Principal Amount of all
Series C Certificates held by each holder plus the accrued but
unpaid interest and other amounts due hereunder or thereunder
(other than Make-Whole Premium) to the date of distribution,
bears to the aggregate unpaid Principal Amount of all Series C
Certificates held by all such holders plus the accrued but unpaid
interest and other amounts due thereon (other than Make-Whole
Premium) to the date of distribution;
(it being understood that amounts payable under this clause
"second" shall not include Make-Whole Premium); and
third, the balance, if any of such payments or amounts remaining
thereafter shall be distributed to the Owner Trustee for
distribution pursuant to the Trust Agreement.
Section 5.04. Certain Payments. (a) Except as otherwise provided
in this Indenture, any payments received by the Indenture Trustee which are to
be applied according to any provision in any other Indenture Document shall be
applied thereunder in accordance therewith.
(b) The Indenture Trustee will distribute, promptly upon receipt, any
indemnity or other payment received by it from the Owner Trustee or the Lessee
in respect of (i) the Indenture Trustee in its individual capacity, (ii) the
Subordination Agent, (iii) each Liquidity Provider, and (iv) the Pass Through
Trustee, in each case whether pursuant to Article 8 or 9 of the Participation
Agreement or as Supplemental Rent, directly to the Person (which may include
the Indenture Trustee) entitled thereto. Any payment received by the
Indenture Trustee under clause (b) of the last paragraph of Section 2.04 shall
be distributed to the Subordination Agent to be distributed in accordance with
the terms of the Intercreditor Agreement.
(c) Notwithstanding anything to the contrary contained herein, any
sums received by the Indenture Trustee which constitute Excepted Payments
shall be distributed promptly upon receipt by the Indenture Trustee directly
to the Person or Persons entitled thereto.
Section 5.05. Other Payments. Any payments received by the Indenture
Trustee for which no provision as to the application thereof is made elsewhere
in this Indenture or in any other Indenture Document (including without
limitation Article 9 of the Lease) shall be distributed by the Indenture
Trustee (a) to the extent received or realized at any time prior to the
payment in full of all obligations to the Holders, in the order of priority
specified in Section 5.01 hereof, and (b) to the extent received or realized
at any time after payment in full of all obligations to the Holders, in the
following order of priority: first, in the manner provided in clause "first"
of Section 5.03 hereof and second, in the manner provided in clause "third" of
Section 5.03 hereof.
Section 5.06. Payments to Owner Trustee. Any amounts distributed
hereunder by the Indenture Trustee to the Owner Trustee shall be paid to the
Owner Trustee by wire transfer of immediately available funds of the type
received by the Indenture Trustee at such office and to such account or
accounts of such entity or entities as shall be designated by notice from the
Owner Trustee to the Indenture Trustee from time to time. The Owner Trustee
hereby notifies the Indenture Trustee that unless and until the Indenture
Trustee receives notice to the contrary from the Owner Trustee, all amounts to
be distributed to the Owner Trustee hereunder for distribution in accordance
with the Trust Agreement shall be distributed by wire transfer of immediately
available funds of the type received by the Indenture Trustee to such account
of the Owner Participant as may be specified pursuant to Section 2.06 of the
Trust Agreement.
Section 5.07. Application of Payments. Each payment of principal of
and interest or other amounts due on each Certificate shall, except as
otherwise provided herein, be applied, first, to the payment of interest on
such Certificate due and payable to the date of such payment, as provided in
such Certificate, as well as any interest on overdue principal and Make-Whole
Premium, if any, and, to the extent permitted by law, interest and other
amounts due thereunder, second, to the payment of any other amount (other than
the principal of such Certificate) due hereunder to the Holder of such
Certificate or under such Certificate, third, to the payment of the principal
of such Certificate if then due hereunder or under such Certificate and
fourth, the balance, if any remaining thereafter, to the payment of the
principal of such Certificate remaining unpaid (provided that such Certificate
shall not be subject to prepayment without the consent of the affected Holder
except as permitted by Sections 6.02, 6.06 and 8.02 hereof); provided that,
solely for the purpose of determining whether an Indenture Event of Default
shall have occurred and be continuing, each such payment shall be deemed
applied in the following order of priority: first, in the manner provided in
clause "first" above, second, in the manner provided in clause "third" above,
third, in the manner provided in clause "second" above and fourth, in the
manner provided in clause "fourth" above.
Section 5.08. Investment of Amounts Held by Indenture Trustee.
Amounts held by the Indenture Trustee pursuant to Section 5.02(b) hereof or
pursuant to any provision of any Indenture Document providing for investment
by the Indenture Trustee of sums pursuant to Section 23.01 of the Lease or
this Section 5.08 shall be invested by the Indenture Trustee from time to time
in securities selected by (i) so long as no Event of Default shall have
occurred and be continuing, the Lessee (and in the absence of written
direction by the Lessee, the Indenture Trustee shall invest such monies in
direct obligations of the United States of America) or (ii) so long as an
Event of Default shall have occurred and be continuing, the Indenture Trustee
and in each case shall be of the type listed in clauses (i) through (iv) of
Section 23.01 of the Lease. Unless otherwise expressly provided in this
Indenture, any income realized as a result of any such investment, net of the
Indenture Trustee's reasonable fees and expenses in making such investment,
shall be held and applied by the Indenture Trustee in the same manner as the
principal amount of such investment is to be applied and any losses, net of
earnings and such reasonable fees and expenses, shall be charged against the
principal amount invested. The Lessee shall be responsible for and will
promptly pay to the Indenture Trustee or the Lessor, as the case may be, on
demand, the amount of any loss realized as the result of any such investment
(together with any fees, commissions and other costs and expenses, if any,
incurred by the Indenture Trustee or the Lessor in connection with such
investment), such amount to be disposed of in accordance with the terms hereof
or the Lease, as the case may be. The Indenture Trustee shall not be liable
for any loss resulting from any investment made by it or any investment sold
by it under this Indenture in accordance with instructions from the Lessee
other than by reason of its willful misconduct or gross negligence, and any
such investment may be sold (without regard to its maturity) by the Indenture
Trustee without instructions whenever the Indenture Trustee reasonably
believes such sale is necessary to make a distribution required by this
Indenture.
Unless otherwise confirmed in writing, an account statement delivered
by the Indenture Trustee to the Owner Trustee (with a copy to the Lessee)
shall be deemed written confirmation by the Owner Trustee that the investment
transactions identified therein accurately reflect the investment directions
given to the Indenture Trustee by or on behalf of the Lessee, unless the
Lessee notifies the Indenture Trustee in writing to the contrary within 30
days of the date of receipt of such statement.
Section 5.09. Withholding Taxes. The Indenture Trustee shall
withhold any Taxes required to be withheld, except to the extent that the
Holder has furnished evidence satisfactory to the Indenture Trustee of any
exemption from withholding claimed by such Holder and under no circumstances
shall the failure of any such Holder to receive any amounts so withheld
constitute an Indenture Event of Default. Notwithstanding any provision to
the contrary in Sections 5.01 through 5.05 hereof and subject to Article 8 of
the Participation Agreement, if the Lessee is required to pay any such Tax, or
any interest or penalty thereon, or to indemnify the Owner Participant or the
Owner Trustee with respect thereto pursuant to Section 8.01(c) of the
Participation Agreement, the Lessee shall be entitled to receive any payments
otherwise distributable to the Holder of any Certificate who was subject to
such Tax pursuant to Sections 5.01 to 5.05 hereof until the foregoing amounts
shall have been recovered in full by the Lessee.
ARTICLE VI
PREPAYMENT OF CERTIFICATES
Section 6.01. No Prepayment Prior to Maturity. Except as provided
in Sections 6.02, 6.06 and 8.02 hereof, the Certificates may not be prepaid
prior to their respective Maturities.
Section 6.02. Prepayment of Certificates. (a) The Outstanding
Certificates shall be prepaid in full (and not in part except under clause
(vii) below):
(i) If an Event of Loss occurs with respect to the Airframe or with
respect to the Airframe and the Engines or engines then installed on the
Airframe (unless pursuant to Section 11.03 of the Lease and Section 9.08
hereof replacement equipment is substituted therefor).
(ii) If the Lessee, pursuant to Section 4.02(a) of the Lease, gives
notice of purchase of the Aircraft.
(iii) If any Owner Participant or the Owner Trustee on behalf of any
Owner Participant gives notice of prepayment to the Indenture Trustee
pursuant to Section 8.02 hereof.
(iv) If the Lessee, pursuant to Section 10.01 of the Lease, gives
notice of a voluntary termination for obsolescence or surplus, but subject
to Section 6.02(c) below.
(v) At the option of the Owner Trustee with the prior written consent
of the Lessee upon not less than 25 days' prior written notice.
(vi) As contemplated by Section 2.16 hereof and Section 3.03(b) of the
Participation Agreement if the Delivery Date has not occurred on or prior
to the Cut-Off Date.
(vii) With respect to the Series C Certificates only, as provided in
Section 2.03(b) of the Participation Agreement.
(viii) Pursuant to Section 15.01 of the Participation Agreement in
connection with a Refinancing of the Certificates.
(b) In the event of a prepayment of the Certificates pursuant to
Sections 6.02(a)(ii), (iv) and (viii) above, the Owner Trustee, having
received notice from the Lessee in accordance with and subject to the terms of
Section 4.02(a) or 10.01 of the Lease or Article 15 of the Participation
Agreement, as the case may be, shall give irrevocable (subject to Section
6.02(c) hereof) written notice to the Indenture Trustee and to the Holders of
all of the Certificates specifying the Business Day on which the Certificates
shall be prepaid. In the case of a prepayment of the Certificates pursuant
to Section 6.02(a)(i) above, the Certificates shall be prepaid in full on the
Loss Payment Date as defined in Section 11.02 of the Lease. In the case of a
prepayment of the Certificates pursuant to Section 6.02(a)(iii) above, the
Certificates shall be prepaid in full on the date so designated in the notice
referred to in Section 8.02 hereof. In the case of a prepayment of the
Certificates pursuant to Section 6.02(a)(ii) or (iv) above, the Certificates
shall be prepaid in full on the Termination Date. In the case of a prepayment
of the Certificates pursuant to Section 6.02(a)(v) above, the Certificates
shall be prepaid on the 25th date following the notice referred to therein.
In the case of a prepayment of the Certificates pursuant to Section
6.02(a)(vi) above, the Certificates shall be prepaid on the 15th day following
the Cut-Off Date. In the case of a prepayment of the Series C Certificates
pursuant to Section 6.02(a)(vii) above, the amount of such Series C
Certificates to be prepaid shall be prepaid on the Reoptimization Date. In
the case of a prepayment pursuant to Section 6.02(a)(viii) above, the
Certificates shall be prepaid on the effective date of the Refinancing. The
day on which the Certificates are to be prepaid pursuant to this Section
6.01(b) is herein referred to as the "Prepayment Date".
On or prior to the Prepayment Date, immediately available funds shall
be deposited with the Indenture Trustee in an amount in respect of the
Certificates equal to:
(1) (i) if such prepayment is made under any provision of Section 6.02
hereof on or after the applicable Premium Termination Date, or (ii) if such
prepayment is made prior to the applicable Premium Termination Date
pursuant to Section 6.02(a)(i) or 6.02(a)(iii) above (if clause (i) of the
first sentence of Section 8.02(a) hereof is applicable), 6.02(a)(vi) or
6.02(a)(vii) above, the sum of (A) the aggregate principal amount of such
Certificates then Outstanding, (B) accrued interest on the Certificates to
the Prepayment Date and (C) all other aggregate sums due the Indenture
Trustee hereunder or under the Participation Agreement or the Lease, but
excluding any Make-Whole Premium or other premium or penalty, or
(2) if such prepayment is made prior to the applicable Premium
Termination Date pursuant to Section 6.02(a)(ii), 6.02(a)(iii) (if clause
(ii) of the first sentence of Section 8.02(a) hereof is applicable),
6.02(a)(iv), 6.02(a)(v) or 6.02(a)(viii) above, the sum of the amounts
specified in clauses (A), (B) and (C) of the preceding clause (1) plus any
Make-Whole Premium payable in respect of all Certificates with respect to
which the Premium Termination Date therefor has not occurred
(the aggregate amount required to be paid pursuant to this sentence being
herein referred to as the "Prepayment Price").
(c) If, pursuant to the last paragraph of Section 10.01(f) of the
Lease, no Termination Date shall occur, or if, pursuant to Section 4.02(a) of
the Lease, the Lessee revokes its notice of election to purchase, the Lessee
shall give notice thereof to the Indenture Trustee, and the prepayment
proposed to be effected in respect thereof shall not occur.
Section 6.03. Notice of Prepayment to Holders. In order to effect
any prepayment set forth in Section 6.02(a) hereof, the Indenture Trustee
shall give prompt notice by first class mail of prepayment to each Holder of
an Outstanding Certificate. Any notice of prepayment given by the Owner
Trustee may be revoked by the Owner Trustee at any time on or before the
Prepayment Date by prompt notice to the Holders except as otherwise provided
in the Lease or the Participation Agreement.
All notices of prepayment shall state:
(1) the Prepayment Date,
(2) the applicable basis for determining the Prepayment Price,
(3) that on the Prepayment Date, subject to the provisions hereof,
the Prepayment Price will become due and payable, and that interest
on the Certificates shall cease to accrue on and after such
Prepayment Date, and
(4) the place or places where such Certificates are to be
surrendered for payment.
Section 6.04. Deposit of Prepayment Price and Sinking Fund Redemption
Price. On the Prepayment Date or the Sinking Fund Redemption Date (as defined
in Section 6.06 hereof), the Owner Trustee shall, to the extent an amount
equal to the Prepayment Price or the Sinking Fund Redemption Price (as defined
in Section 6.06 hereof), as the case may be, shall not then be held in cash or
Permitted Investments (marked-to-market net of all costs and expenses of
liquidation thereof) by the Indenture Trustee in immediately available funds
and deposited for the purpose, pay to the Indenture Trustee an amount equal to
the difference between (a) the amount then so held and (b) the Prepayment
Price or the Sinking Fund Redemption Price, as the case may be. If there
shall so be on deposit and/or deposited the applicable Prepayment Price or
Sinking Fund Redemption Price on or prior to a Prepayment Date or Sinking Fund
Redemption Date, interest shall cease to accrue in respect of all or, in the
case of a mandatory sinking fund redemption, the relevant portion being
prepaid of, the Outstanding Certificates on and after such Prepayment Date or
such Sinking Fund Redemption Date.
Section 6.05. Certificates Payable on Prepayment Date. On the
Prepayment Date, the Outstanding Certificates shall (except (A) if the Owner
Trustee has requested the Indenture Trustee to revoke such notice of
prepayment in accordance with Section 6.03 hereof or (B) as otherwise provided
in the Lease) become due and payable and from and after such Prepayment Date
(unless there shall be a default in the payment of the Prepayment Price) such
Certificates shall cease to bear interest. Upon surrender by any Holder of
its Certificate for prepayment in accordance with said notice, such Holder
shall be paid the principal amount of its Certificate then outstanding, accrued
interest thereon to the Prepayment Date, all other sums due to such Holder
hereunder, under the Participation Agreement or the Lease, plus, if a
Make-Whole Premium is payable pursuant to Section 6.02(b) hereof, the
Make-Whole Premium in respect of such Certificate.
If any Certificate called for prepayment shall not be so paid upon
surrender thereof for prepayment, the principal shall, until paid, continue to
bear interest from the Prepayment Date at the interest rate applicable to such
Certificate.
Section 6.06. Mandatory Sinking Fund Redemption. The Certificates
shall be subject to partial redemption, at the aggregate principal amount set
forth for the Certificates of the respective Series and Maturity, on a pro
rata basis, on each date specified in this Section (a "Sinking Fund Redemption
Date") for such payment on the Certificates of such Series and Maturity. The
Owner Trustee shall deposit funds sufficient to pay the Sinking Fund
Redemption Price with the Indenture Trustee as provided in Section 6.04
hereof. The Indenture Trustee shall pay from the amounts so deposited on each
applicable Sinking Fund Redemption Date to the Certificates of each Series in
the order of priority set forth in clause "first" of Section 5.01 hereof and
among the Holders of the Certificates of each Series then Outstanding on a pro
rata basis the aggregate principal amount set forth below, together with
accrued interest to such Sinking Fund Redemption Date, but without Make-Whole
Premium (the "Sinking Fund Redemption Price"):
Principal Amount
Series A Series B Series C
Certificates with Certificates with Certificates with
Sinking Fund a Maturity of a Maturity of a Maturity of
Redemption Date January 15, 2016 January 15, 2016 January 15, 2009
- ---------------- ----------------- ----------------- -----------------
January 15, 1998 0 0 404,461
July 15, 1998 0 0 0
January 15, 1999 58,080 280 1,238,436
July 15, 1999 0 0 0
January 15, 2000 711,706 266,890 364,600
July 15, 2000 0 0 0
January 15, 2001 711,706 266,890 470,480
July 15, 2001 0 0 0
January 15, 2002 711,706 266,890 579,879
July 15, 2002 0 0 0
January 15, 2003 710,468 266,890 699,282
July 15, 2003 1,238 0 0
January 15, 2004 0 0 1,802,545
July 15, 2004 711,706 266,890 0
January 15, 2005 0 0 917,977
July 15, 2005 711,710 266,890 0
January 15, 2006 0 0 3,200,096
July 15, 2006 711,707 266,890 0
January 15, 2007 711,706 266,890 687,252
July 15, 2007 0 0 0
January 15, 2008 711,707 266,890 1,985,262
July 15, 2008 0 0 0
January 15, 2009 711,707 841,573 1,637,730
July 15, 2009 0 0 0
January 15, 2010 711,706 3,815,854 0
July 15, 2010 0 0 0
January 15, 2011 711,706 4,169,481 0
July 15, 2011 0 0 0
January 15, 2012 3,979,330 1,282,776 0
July 15, 2012 0 0 0
January 15, 2013 5,672,274 0 0
July 15, 2013 0 0 0
January 15, 2014 6,114,269 0 0
July 15, 2014 0 0 0
January 15, 2015 6,590,706 0 0
July 15, 2015 0 0 0
January 15, 2016 3,264,862 299,026 0
ARTICLE VII
INDENTURE EVENTS OF DEFAULT; REMEDIES
OF INDENTURE TRUSTEE AND HOLDERS
Section 7.01. Indenture Event of Default. "Indenture Event of
Default" means any of the following events (whatever the reason for such
Indenture Event of Default and whether it shall be voluntary or involuntary or
come about or be effected by operation of law or pursuant to or in compliance
with any judgment, decree or order of any court or any order, rule or
regulation of any administrative or governmental body):
(i) any Event of Default specified in Article 16 of the Lease (other
than an Event of Default arising solely as the result of the failure to
make an Excepted Payment unless the Owner Trustee shall notify the
Indenture Trustee in writing that such failure shall constitute an
Indenture Event of Default); or
(ii) the failure of the Owner Trustee other than by reason of a
Default or an Event of Default (i) to pay principal, interest or Make-Whole
Premium, if any, on any Certificate when due, and such failure shall have
continued unremedied for ten (10) Business Days after the date when due or
(ii) to pay any other amounts hereunder or under the Certificates when due
and such failure shall have continued unremedied for a period of thirty
(30) days after the Owner Trustee and the Owner Participant shall receive
written demand therefor from the Indenture Trustee or by the Holders of not
less than 25% in aggregate principal amount of Outstanding Certificates; or
(iii) (A) any representation or warranty made by SSB, the Owner
Trustee or any Owner Trustee Guarantor, in any Operative Agreement or in any
certificate of SSB or the Owner Trustee furnished to the Indenture Trustee
or any Holder in connection herewith or therewith or pursuant hereto or
thereto shall prove to have been incorrect when made and was and remains in
any respect material to the Holders and if such misrepresentation is
capable of being corrected as of a subsequent date and if such correction
is being sought diligently, and such misrepresentation shall not have been
corrected within 30 days following notice thereof identified as a "Notice
of Indenture Event of Default" being given to the Owner Trustee and any
Owner Participant by the Indenture Trustee or by a Majority in Interest of
Holders; or
(B) any (x) covenant made by the Owner Trustee in the fifth paragraph
following the Habendum Clause hereof or Section 3.05(b)(iii) hereof or
Section 7.02(b) (unless otherwise removed as Owner Trustee within 10 days
after notice thereof to any Owner Participant) or 7.04(b) (unless such Lien
is removed within the 30-day period set forth therein) of the Participation
Agreement shall be breached in any respect or (y) other covenant made by
the Owner Trustee, in its individual capacity or as Owner Trustee, or by
any Owner Trustee Guarantor in any Operative Agreement shall be breached in
any respect and such breach shall remain unremedied for a period of thirty
(30) days after there has been given to the Owner Trustee and any Owner
Participant by the Indenture Trustee or by Certificate Holders of not less
than 25% in aggregate principal amount of Outstanding Certificates a
written notice identified as a "Notice of Indenture Event of Default"
specifying such breach and requiring it to be remedied; or
(iv) the Owner Trustee, the Lessor's Estate or any Owner Trustee
Guarantor shall file any petition or answer seeking for itself any
reorganization, arrangement, composition, readjustment, liquidation,
dissolution or similar relief under any present or future bankruptcy,
insolvency or similar statute, law or regulation;
(v) an order for relief shall be entered in respect of the Owner
Trustee or any Owner Trustee Guarantor or the Lessor's Estate by a court
having jurisdiction in the premises in an involuntary case under the
federal bankruptcy laws as now or hereafter in effect; or the Owner Trustee
or any Owner Trustee Guarantor or the Lessor's Estate shall file any answer
admitting or not contesting the material allegations of a petition filed
against the Owner Trustee or any Owner Trustee Guarantor or the Lessor's
Estate in any proceeding referred to in clause (vi) below or seek or
consent or acquiesce in the appointment of any trustee, custodian, receiver
or liquidator of the Owner Trustee or any Owner Trustee Guarantor or the
Lessor's Estate, as the case may be, or of all or any substantial part of
its properties; or
(vi) without the consent or acquiescence of the Owner Trustee or any
Owner Trustee Guarantor or the Lessor's Estate, as the case may be, an
order shall be entered constituting an order for relief or approving a
petition for relief or reorganization or any other petition seeking any
reorganization, arrangement, composition, readjustment, liquidation,
dissolution or other similar relief under any present or future bankruptcy,
insolvency or similar statute, law or regulation, or if any such petition
shall be filed against the Owner Trustee or any Owner Trustee Guarantor or
the Lessor's Estate, as the case may be, and such petition shall not be
dismissed within 60 days, or if, without the consent or acquiescence of the
Owner Trustee or any Owner Trustee Guarantor or the Lessor's Estate, as the
case may be, an order shall be entered appointing a trustee, custodian,
receiver or liquidator of the Owner Trustee or any Owner Trustee Guarantor
or the Lessor's Estate, as the case may be, or of all or any substantial
part of the properties of the Owner Trustee or any Owner Trustee Guarantor
or the Lessor's Estate, as the case may be, and such order shall not be
dismissed within 60 days; or
(vii) any Owner Trustee Guaranty shall cease to be a valid and
enforceable obligation of any Owner Trustee Guarantor or otherwise shall
not be in full force and effect.
Section 7.02. Remedies. (a) If an Indenture Event of Default shall
have occurred and be continuing and so long as the same shall be continuing
unremedied, then and in every such case, the Indenture Trustee may, and when
required by the provisions of Article IX or Section 7.02(c) hereof, shall (i)
exercise any or all of the rights and powers and pursue any and all of the
remedies pursuant to this Article VII and (ii) in the event such Indenture
Event of Default is an Indenture Event of Default referred to in clause (i) of
Section 7.01 hereof, exercise any and all of the remedies pursuant to Article
17 of the Lease; provided that without the consent of the Owner Trustee such
exercise of remedies shall not occur until after the latest date on which the
Owner Trustee may cure the related Event of Default pursuant to Section 8.03
hereof. The Indenture Trustee may take possession of all or any part of the
properties covered or intended to be covered by the Lien and security interest
created hereby or pursuant hereto and may exclude the Owner Trustee, the
Lessee and any transferee of the Lessee and all Persons claiming under any of
them wholly or partly therefrom. In addition, the Indenture Trustee may
exercise any other right or remedy in lieu of or in addition to the foregoing
that may be available to it under applicable law, or proceed by appropriate
court action to enforce the terms hereof, of the Lease, or both, or to rescind
the Lease. Without limiting any of the foregoing, it is understood and agreed
that the Indenture Trustee may exercise any right of sale of the Aircraft
available to it, even though it shall not have taken possession of the
Aircraft and shall not have possession thereof at the time of such sale.
Notwithstanding the foregoing, it is understood and agreed that if the
Indenture Trustee shall proceed to foreclose the Lien of this Indenture, it
shall substantially simultaneously therewith, to the extent the Indenture
Trustee is then entitled to do so hereunder and under the Lease, and is not
then stayed or otherwise prevented from doing so, proceed (to the extent it
has not already done so) to declare the Lease in default and commence the
exercise in good faith of one or more of the significant remedies under
Article 17 of the Lease (as the Indenture Trustee determines in its sole
discretion). It is further understood and agreed that if the Indenture Trustee
is unable to exercise one or more remedies under Article 17 of the Lease
because of any stay or operation of law or otherwise, the Indenture Trustee
shall not be entitled to foreclose the Lien of this Indenture (A) until the
earlier of (i) 60 days from the date of any such stay or applicable order
under Section 1110 of the Bankruptcy Code including any extension consented to
by the Indenture Trustee or the Holders of Certificates of such period
permitted under Section 1110(b) of the Bankruptcy Code and (ii) the date of
actual repossession of the Aircraft by the Indenture Trustee or (B) if the
Lessee has agreed to perform or assume the Lease and no Event of Default other
than as specified in Section 16.01(e), (f) or (g) of the Lease shall be
continuing. For the avoidance of doubt, it is expressly understood and agreed
that except as aforesaid the above-described inability of the Indenture
Trustee to exercise any right or remedy under the Lease shall in no event and
under no circumstances prevent the Indenture Trustee from exercising all of
its rights, powers and remedies under this Indenture, including, without
limitation, this Article VII. The Indenture Trustee further agrees that
notice of intent to foreclose shall be given to the Owner Trustee at the
earlier of the commencement of any proceeding or at least 30 days prior to the
consummation of foreclosure of the Lien of this Indenture.
(b) If an Indenture Event of Default under clause (iv), (v) or (vi)
of Section 7.01 hereof shall occur and be continuing, the unpaid principal of
all Outstanding Certificates, together with interest accrued but unpaid
thereon and all other amounts due thereunder, but without Make-Whole Premium,
shall immediately become due and payable, without presentment, demand, protest
or notice, all of which are hereby waived.
(c) If any Indenture Event of Default not described in the preceding
paragraph (b) shall have occurred and be continuing, then and in every such
case, the Indenture Trustee may on its own accord or at the direction of
Holders of not less than 25% in aggregate principal amount of Outstanding
Certificates, at any time, by written notice to the Owner Trustee and the
Lessee, declare the principal of all the Certificates to be due and payable,
whereupon the unpaid principal amount of all Outstanding Certificates,
together with accrued interest thereon and all other amounts due thereunder,
but without Make-Whole Premium, shall immediately become due and payable
without presentment, demand, protest or other notice, all of which are hereby
waived. At any time after such declaration and prior to the sale or
disposition of the Trust Indenture Estate, however, the Holders of not less
than 50% in aggregate principal amount of Outstanding Certificates, by notice
to the Indenture Trustee, the Owner Trustee and the Lessee, may rescind such
declaration, whether made by the Indenture Trustee on its own accord or as
directed, if (x) there has been paid or deposited with the Indenture Trustee a
sum sufficient to pay all overdue installments of interest on all Certificates
(together, to the extent permitted by law, with interest on such overdue
installments of interest), the principal on any Certificates that has become
due otherwise than by such declaration of acceleration, all sums paid or
advanced by the Indenture Trustee hereunder and the reasonable compensation,
expenses, disbursements and advances of the Indenture Trustee, its agents and
counsel, or (y) all Indenture Events of Default (other than the nonpayment of
principal that has become due solely because of such acceleration) have been
either cured or waived as provided in Section 7.11 hereof. No such rescission
shall affect any subsequent default or impair any right consequent thereon.
(d) Each Holder shall be entitled at any sale to credit against any
purchase price bid at such sale by such Holder all or any part of the unpaid
obligations owing to such Holder secured by the Lien of this Indenture (but
only to the extent that an amount equal to such purchase price would have been
paid to such Holder pursuant to Article V hereof if such purchase price were
paid in cash and the foregoing provisions of this subsection (d) were not
given effect).
Section 7.03. Return of Aircraft, etc. Subject to Section 7.02
hereof: (a) If an Indenture Event of Default shall have occurred and be
continuing, at the request of the Indenture Trustee, the Owner Trustee shall
promptly execute and deliver to the Indenture Trustee such documents as the
Indenture Trustee may deem necessary or advisable to enable the Indenture
Trustee or an agent or representative designated by the Indenture Trustee, at
such time or times and place or places as the Indenture Trustee may specify,
to obtain possession of all or any part of the Trust Indenture Estate to which
the Indenture Trustee shall at the time be entitled under this Indenture.
Subject to the foregoing, if the Owner Trustee shall for any reason fail to
execute and deliver such documents after such request by the Indenture
Trustee, the Indenture Trustee may (i) obtain a judgment conferring on the
Indenture Trustee or an agent or representative designated by the Indenture
Trustee, the right to immediate possession and requiring the Owner Trustee to
execute and deliver such instruments and documents to the Indenture Trustee or
an agent or representative designated by the Indenture Trustee, to the entry
of which judgment the Owner Trustee hereby specifically consents, and (ii)
pursue all or part of such Trust Indenture Estate wherever it may be found and
enter any of the premises of the Lessee or the Owner Trustee wherever such
Trust Indenture Estate may be or be supposed to be and search for such Trust
Indenture Estate and take possession of and remove such Trust Indenture
Estate. All expenses of obtaining such judgment or of pursuing, searching for
and taking such Trust Indenture Estate shall, until paid, be secured by the
Lien of this Indenture.
(b) Upon every such taking of possession, the Indenture Trustee may,
from time to time, at the expense of the Trust Indenture Estate, make all such
expenditures for maintenance, insurance and repairs to and of such Trust
Indenture Estate, as the Indenture Trustee may reasonably deem proper. In
each case subject to Section 7.02 hereof, the Indenture Trustee shall have the
right to maintain, use, operate, store, lease, control or manage the Trust
Indenture Estate and to carry on the business and to exercise all rights and
powers of the Owner Trustee relating to the Trust Indenture Estate, as the
Indenture Trustee may reasonably deem best, including the right to enter into
any and all such agreements with respect to the maintenance, insurance, use,
operation, storage, leasing, control, management or disposition of all or any
part of the Trust Indenture Estate as the Indenture Trustee may determine.
Further, the Indenture Trustee shall be entitled to collect and receive
directly all tolls, rents (including Rent), revenues, issues, income, products
and profits of the Trust Indenture Estate other than Excepted Payments,
without prejudice, however, to the right of the Indenture Trustee under any
provision of this Indenture to collect and receive all cash held by, or
required to be deposited with, the Indenture Trustee under this Indenture.
Such tolls, rents (including Rent), revenues, issues, income, products and
profits shall be applied to pay the expenses of the use, operation, storage,
leasing, control, management, or disposition of the Trust Indenture Estate,
and of all maintenance and repairs, and to make all payments which the
Indenture Trustee may be required or may reasonably elect to make for any
taxes, assessments, insurance or other proper charges upon the Trust Indenture
Estate (including the employment of engineers and accountants to examine,
inspect and make reports upon the properties and books and records of the
Owner Trustee and the Lessee), and all other payments which the Indenture
Trustee may be required or authorized to make under any provision of this
Indenture, as well as just and reasonable compensation for the services of the
Indenture Trustee and of all persons properly engaged and employed for such
purposes by the Indenture Trustee; provided, that any excess amounts shall be
promptly distributed in accordance with Section 5.03 hereof.
(c) If an Indenture Event of Default shall have occurred and be
continuing and the Indenture Trustee shall be entitled to exercise remedies
hereunder, and subject to Article VIII hereof, the Indenture Trustee, either
with or without taking possession, and either before or after taking
possession, and without instituting any legal proceedings whatsoever, may
sell, assign, transfer and deliver the whole or, from time to time, to the
extent permitted by law, any part of the Trust Indenture Estate, or any part
thereof, or interest therein, at any private sale or public auction to the
highest bidder, with or without demand, advertisement or notice, except that
in respect of any private sale 20 days prior notice will be provided, for cash
or, with the consent of the Owner Trustee, which shall not be unreasonably
withheld, credit or for other property, for immediate or future delivery, and
for such price or prices and on such terms as the Indenture Trustee in
exercising reasonable commercial discretion may determine; provided, that any
such action shall be at the time lawful and that all mandatory legal
requirements shall be complied with. Any notice required pursuant to the
terms hereof in the case of a public sale, shall state the time and place
fixed for such sale. Any such public sale shall be held at such time or times
within ordinary business hours as the Indenture Trustee shall fix in the
notice of such sale. At any such sale, the Trust Indenture Estate may be sold
in one lot as an entirety or in separate lots. The Indenture Trustee shall
not be obligated to make any sale pursuant to such notice. The Indenture
Trustee may, without notice or publication, adjourn any public or private sale
or cause the same to be adjourned from time to time by announcement at the time
and place fixed for such sale, and any such sale may be made at any time or
place to which the same may be so adjourned without further notice or
publication. The Indenture Trustee may exercise such right of sale without
possession or production of the Certificates or proof of ownership thereof,
and as representative of the Holders may exercise such right without notice to
the Holders or without including the Holders as parties to any suit or
proceedings relating to the foreclosure of any part of the Trust Indenture
Estate. The Owner Trustee shall execute any and all such bills of sale,
assignments and other documents, and perform and do all other acts and things
requested by the Indenture Trustee in order to permit consummation of any sale
of the Trust Indenture Estate in accordance with this Section 7.03(c) and to
effectuate the transfer or conveyance referred to in the first sentence of
this Section 7.03(c). Notwithstanding any other provision of this Indenture,
the Indenture Trustee shall not sell the Trust Indenture Estate or any part
thereof unless the Certificates shall have been accelerated.
(d) To the extent permitted by applicable law, the Indenture Trustee
or any Holder may be a purchaser of the Trust Indenture Estate or any part
thereof or any interest therein at any sale thereof, whether pursuant to
foreclosure or power of sale or otherwise. The Indenture Trustee may apply
against the purchase price therefor the amount then due hereunder or under any
of the Certificates secured hereby and any Holder may apply against the
purchase price therefor the amount then due to it hereunder, under any other
Indenture Document or under the Certificates held by such Holder to the extent
of such portion of the purchase price as it would have received had it been
entitled to share any distribution thereof. The Indenture Trustee or any
Holder or nominee thereof shall, upon any such purchase, acquire good title to
the property so purchased, free of the Lien of this Indenture and, to the
extent permitted by applicable law, free of all rights of redemption in the
Owner Trustee or the Owner Participant in respect of the property so
purchased.
(e) Subject to Article VIII hereof, and effective upon the
occurrence and continuance of an Indenture Event of Default, the Owner Trustee
hereby irrevocably appoints and constitutes the Indenture Trustee the true and
lawful attorney-in-fact of the Owner Trustee in its name and stead and on its
behalf, for the purpose of effectuating any sale, assignment, transfer or
delivery for the enforcement of the Lien of this Indenture, whether pursuant
to foreclosure or power of sale or otherwise, to execute and deliver all such
bills of sale, assignments and other instruments as the Indenture Trustee may
consider necessary or appropriate, with full power of substitution, and the
Owner Trustee hereby ratifies and confirms all that such attorney or any
substitute shall lawfully do by virtue hereof. Nevertheless, if so requested
by the Indenture Trustee or any purchaser, the Owner Trustee shall ratify and
confirm any such sale, assignment, transfer or delivery, by executing and
delivering to the Indenture Trustee or such purchaser all bills of sale,
assignments, releases and other proper instruments to effect such ratification
and confirmation as may be designated in any such request.
(f) The Indenture Trustee shall, as a matter of right, be entitled
to the appointment of a receiver (who may be the Indenture Trustee or any
successor or nominee) for all or any part of the Trust Indenture Estate,
whether such receivership be incidental to a proposed sale of the Trust
Indenture Estate or the taking of possession thereof or otherwise, and the
Owner Trustee hereby consents to the appointment of such receiver and will not
oppose any such appointment. Any receiver appointed for all or any part of
the Trust Indenture Estate shall be entitled to exercise all of the rights and
powers of the Indenture Trustee with respect to the Trust Indenture Estate.
(g) Any sale of the Trust Indenture Estate or any part thereof or
any interest therein, whether pursuant to foreclosure or power of sale or
otherwise hereunder, shall be a perpetual bar against the Owner Trustee after
the expiration of the period, if any, during which the Owner Trustee shall
have the benefit of prepayment laws which may not be waived pursuant to
Section 7.13 hereof.
Section 7.04. Indenture Trustee May Prove Debt. If the Owner
Trustee shall fail to pay any amount payable hereunder or under the
Certificates, the Indenture Trustee, in its own name and as trustee of an
express trust, shall be entitled and empowered to institute any action or
proceedings at law or in equity for the collection of the sums so due and
unpaid, and may prosecute any such action or proceedings to judgment or final
decree, and may enforce any such judgment or final decree against the Owner
Trustee and collect in the manner provided by law out of the property of the
Owner Trustee wherever situated, the moneys adjudged or decreed to be payable;
provided, that any sale of any portion of the Trust Indenture Estate shall be
done in accordance with Section 7.03(c) hereof.
In case there shall be pending proceedings relative to the Owner
Trustee under the Bankruptcy Code or any other applicable Federal or state
bankruptcy, insolvency or other similar law, or in case a receiver, assignee
or trustee in bankruptcy or reorganization, liquidator, sequestrator or
similar official shall have been appointed for or taken possession of the
Owner Trustee or its property, or in case of any other comparable judicial
proceedings relative to the Owner Trustee, or to the creditors or property of
the Owner Trustee, the Indenture Trustee, irrespective of whether the
principal of the Certificates shall then be due and payable as therein or
herein expressed or by declaration or otherwise and irrespective of whether
the Indenture Trustee shall have made any demand pursuant to the provisions of
this Section, shall be entitled and empowered, by intervention in such
proceedings or otherwise:
(a) to file and prove a claim or claims for the whole amount of
principal, interest and other amounts owing and unpaid in respect of the
Certificates or hereunder, and to file such other papers or documents as
may be necessary or advisable in order to have the claims of the Indenture
Trustee (including any claim for reasonable compensation to the Indenture
Trustee and each predecessor Indenture Trustee, and their respective
agents, attorneys and counsel, and for reimbursement of the Indenture
Trustee and each predecessor Indenture Trustee, except as a result of
negligence or bad faith) and of the Holders allowed in any judicial
proceedings relative to the Owner Trustee or to the creditors or property of
the Owner Trustee,
(b) unless prohibited by applicable law and regulations, to vote on
behalf of the Holders in any election of a trustee or a standby trustee in
arrangement, reorganization, liquidation or other bankruptcy or insolvency
proceedings or person performing similar functions in comparable
proceedings, and
(c) to collect and receive any moneys or other property payable or
deliverable on any such claims, and to distribute all amounts received with
respect to the claims of the Holders and of the Indenture Trustee on their
behalf;
and any trustee, receiver, or liquidator, custodian or other similar official
is hereby authorized by each of the Holders to make payments to the Indenture
Trustee, and, in the event that the Indenture Trustee shall consent to the
making of payments directly to the Holders, to pay to the Indenture Trustee
such amounts as shall be sufficient to cover reasonable compensation to the
Indenture Trustee, each predecessor Indenture Trustee and their respective
agents, attorneys and counsel, and all other expenses and liabilities
incurred, and all advances made, by the Indenture Trustee and each predecessor
Indenture Trustee except as a result of negligence or willful misconduct.
Nothing contained herein shall be deemed to authorize the Indenture
Trustee to authorize or consent to or vote for or accept or adopt on behalf of
any Holder any plan of reorganization, arrangement, adjustment or composition
affecting the Certificates or the rights of any Holder thereof, or to
authorize the Indenture Trustee to vote in respect of the claim of any Holder
in any such proceeding except, as aforesaid, to vote for the election of a
trustee in bankruptcy or similar person.
All rights of action and rights to assert claims under this
Indenture, or under any of the Certificates, may be enforced by the Indenture
Trustee without the possession of such Certificates on any trial or other
proceedings instituted by the Indenture Trustee shall be brought in its own
name as trustee of an express trust, and any recovery of judgment, subject to
the payment of the expenses, disbursements and compensation of the Indenture
Trustee, each predecessor Indenture Trustee and their respective agents and
attorneys, shall be for the ratable benefit of the Holders, as provided herein.
In any proceedings brought by the Indenture Trustee (and also any
proceedings involving the interpretation of any provision of this Indenture to
which the Indenture Trustee shall be a party) the Indenture Trustee shall be
held to represent all the Holders of the Certificates, and it shall not be
necessary to make any Holders parties to such proceedings.
Section 7.05. Remedies Cumulative. Each and every right, power and
remedy given to the Indenture Trustee in this Indenture shall be cumulative
and shall be in addition to every other right, power and remedy specifically
given herein or now or hereafter existing at law, in equity or by statute, and
each and every right, power and remedy whether specifically given herein or
otherwise existing may be exercised from time to time and as often and in such
order as may be deemed expedient by the Indenture Trustee or the Holders, and
the exercise or the beginning of the exercise of any power or remedy shall not
be construed to be a waiver of the right to exercise at the same time or later
any other right, power or remedy. No delay or omission by the Indenture
Trustee or of any Holder in the exercise of any right, remedy or power or in
the pursuance of any remedy shall impair any such right, power or remedy or be
construed to be a waiver of any default on the part of the Owner Trustee or
the Lessee or to be an acquiescence in any such default.
Section 7.06. Suits for Enforcement. If an Indenture Event of
Default has occurred, has not been waived and is continuing, the Indenture
Trustee may in its discretion and subject to its rights of appropriate
indemnification under Sections 7.08 and 9.03 and Article XI hereof proceed to
protect and enforce its rights and rights of the Holders by such appropriate
judicial proceedings as the Indenture Trustee shall deem most effectual to
protect and enforce any of such rights, either at law or in equity or in
bankruptcy or otherwise, whether for the specific enforcement of any covenant
or agreement contained in this Indenture or in aid of the exercise of any
power granted in this Indenture or to enforce any other legal or equitable
right vested in the Indenture Trustee or the Holders by this Indenture or by
law; provided, that any sale of any portion of the Trust Indenture Estate
shall be done in accordance with Section 7.03(c) hereof.
Section 7.07. Discontinuance of Proceedings. In case the Indenture
Trustee or any Holder shall have instituted any proceeding to enforce any
right, power or remedy under this Indenture by foreclosure, entry or
otherwise, and such proceeding shall have been discontinued or abandoned for
any reason or shall have been determined adversely to the Indenture Trustee or
such Holder, then the Owner Trustee, the Indenture Trustee, any Owner
Participant, the Holders and the Lessee shall, subject to any binding
determination in such proceeding, be restored to their former positions and
rights under this Indenture with respect to the Trust Indenture Estate, and all
rights, remedies and powers of the Indenture Trustee and the Holders shall
continue as if no such proceeding had been instituted.
Section 7.08. Limitations on Suits by Holders. No Holder of any
Certificate shall have any right by virtue or by availing of any provision of
this Indenture to institute any action or proceeding at law or in equity or in
bankruptcy or otherwise upon or under or with respect to this Indenture, or
for the appointment of a trustee, receiver, liquidator, custodian or other
similar official or for any other remedy hereunder, unless such Holder
previously shall have given to the Indenture Trustee written notice that an
Indenture Event of Default shall then have occurred and be continuing, as
hereinbefore provided, and the Holders of not less than 25% in aggregate
principal amount of Outstanding Certificates shall have made written request
upon the Indenture Trustee to institute such action or proceedings in its own
name as trustee hereunder and shall have offered to the Indenture Trustee such
reasonable indemnity as it may require against the costs, expenses and
liabilities to be incurred therein or thereby and the Indenture Trustee for 60
days after its receipt of such notice, request and offer of indemnity shall
have failed to institute any such action or proceedings and no direction
inconsistent with such written request shall have been given to the Indenture
Trustee pursuant to Section 7.10 hereof; it being understood and intended, and
being expressly covenanted by the Holder of each Certificate with every other
Holder of each other Certificate and the Indenture Trustee, that no one or
more Holders shall have any right in any manner whatever to affect, disturb or
prejudice the rights of any other Holder or the Lien of this Indenture or any
part of the Trust Indenture Estate or to obtain or seek to obtain priority
over or preference to any other such Holder or to enforce any right under this
Indenture, except in the manner provided herein and for the equal, ratable and
common benefit of all Holders. For the protection and enforcement of the
provisions of this Section, each and every Holder and the Indenture Trustee
shall be entitled to such relief as can be given either at law or in equity.
Section 7.09. Unconditional Right of Holders to Receive Principal,
Interest and Make-Whole Premium, and to Institute Certain Suits.
Notwithstanding any other provision in this Indenture and any provision of any
Certificate, the right of any Holder to receive payment of the principal of
and interest and Make-Whole Premium, if any, on such Certificate on or after
the respective due dates and in the manner expressed in such Certificate, or,
subject to Section 7.08 hereof, to institute suit for the enforcement of any
such payment on or after such respective dates as provided herein, shall not
be impaired or affected without the consent of such Holder.
Section 7.10. Control by Holders. The Majority in Interest of
Certificate Holders shall have the right to direct the Indenture Trustee as to
the time, method, and place of conducting any proceeding for any remedy
available to the Indenture Trustee, or exercising any trust or power conferred
on the Indenture Trustee by this Indenture; provided that such direction shall
not be otherwise than in accordance with law and the provisions of this
Indenture and the Indenture Trustee shall have received, to the extent
provided in Sections 7.08 and 9.03 and Article XI hereof, such reasonable
indemnification as it may require against the costs, expenses and liabilities
to be incurred by the Indenture Trustee; and provided further that (subject to
the provisions of Section 9.02 hereof) the Indenture Trustee shall have the
right to decline to follow any such direction if the Indenture Trustee, being
advised by counsel, shall determine that the action or proceeding so directed
may not lawfully be taken or if the Indenture Trustee in good faith by its
board of directors, the executive committee, or a trust committee of directors
or Responsible Officers of the Indenture Trustee shall determine that the
action or proceedings so directed would involve the Indenture Trustee in
personal liability or if the Indenture Trustee in good faith shall so
determine that the actions or forebearances specified in or pursuant to such
direction shall be unduly prejudicial to the interests of Holders not joining
in the giving of said direction, it being understood that (subject to Section
9.02 hereof) the Indenture Trustee shall have no duty to ascertain whether or
not such actions or forebearances are unduly prejudicial to such Holders.
Nothing in this Indenture shall impair the right of the Indenture
Trustee in its discretion to take any action deemed proper by the Indenture
Trustee and which is not inconsistent with the direction by the Majority in
Interest of Certificate Holders.
Section 7.11. Waiver of Past Indenture Default. Upon written
instructions from the Majority in Interest of Certificate Holders, the
Indenture Trustee shall waive any past Indenture Default and its consequences
and upon any such waiver such Indenture Default shall cease to exist and any
Indenture Event of Default arising therefrom shall be deemed to have been
cured for every purpose of this Indenture, but no such waiver shall extend to
any subsequent or other Indenture Default or impair any right consequent
thereon; provided, however, that in the absence of written instructions from
all Holders and each Liquidity Provider, the Indenture Trustee shall not waive
any Indenture Default (a) in the payment of the principal of or Make-Whole
Premium, if any, or interest on, or other amounts due under, any Certificate
then Outstanding, or (b) in respect of a covenant or provision of this
Indenture which, under Article XIII hereof, cannot be modified or amended
without the consent of each Holder.
Section 7.12. Notice of Indenture Default. The Indenture Trustee
shall transmit to the Owner Trustee, the Holders and to the Owner Participant
notice of any Indenture Defaults actually known to a Responsible Officer of
the Indenture Trustee, such notice to be transmitted by mail to the Holders
within 90 days, and to the Owner Trustee and the Owner Participant promptly
after the occurrence thereof, unless such Indenture Default shall have been
cured before the giving of such notice; provided that except in the case of a
default in the payment of the principal of or interest on any Certificate,
under no circumstances shall the Indenture Trustee give such notice to the
Holders until the expiration of a period of 60 days from the occurrence of such
Indenture Default; and provided further that, except in the case of default in
the payment of the principal of or interest on or any other amount due under
any of the Certificates, the Indenture Trustee shall be protected in
withholding such notice to the Holders if and so long as the board of
directors, the executive committee, or a trust committee of directors or
trustees and/or Responsible Officers of the Indenture Trustee in good faith
determines that the withholding of such notice is in the interests of the
Holders.
Section 7.13. Waiver of Appraisement, etc.; Laws. The Owner Trustee
covenants (to the extent that it may lawfully do so) that it will not at any
time insist upon, or plead, or in any manner whatsoever claim or take the
benefit or advantage of, any appraisement, valuation, stay, extension or
prepayment law wherever enacted, now or at any time hereafter in force, in
order to prevent or hinder the enforcement of this Indenture or the execution
of any power granted herein to the Indenture Trustee, or the absolute sale of
the Trust Indenture Estate, or any part thereof, or the possession thereof by
any purchaser at any sale under this Article VII; and the Owner Trustee for
itself and all who may claim under it, so far as it or any of them now or
hereafter lawfully may, hereby waives the benefit of all such laws. The Owner
Trustee for itself and all who may claim under it waives, to the extent that
it lawfully may, all right to have the property in the Trust Indenture Estate
marshalled upon any foreclosure hereof, and agrees that any court having
jurisdiction to foreclose this Indenture may order the sale of the Trust
Indenture Estate as an entirety.
If any law referred to in this Section 7.13 and now in force, of
which the Owner Trustee or its successors might take advantage despite this
Section 7.13, shall hereafter be repealed or cease to be in force, such law
shall not thereafter be deemed to constitute any part of the contract herein
contained or to preclude the application of this Section 7.13.
ARTICLE VIII
RIGHTS OF THE OWNER TRUSTEE
AND THE OWNER PARTICIPANTS
Section 8.01. Certain Rights of Owner Trustee and Owner
Participants. (a) Subject to Section 13.01 hereof, without the consent of a
Majority in Interest of Certificate Holders, the respective parties to the
Indenture Documents may not modify, amend or supplement any of said
agreements, or give any consent, waiver, authorization or approval thereunder,
for the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions thereof or of modifying in any manner the
rights of the respective parties thereunder; provided, however, that the
actions specified in subsection (b) of this Section 8.01 and the amendments
contemplated by Section 2.03 of the Participation Agreement (subject to the
limitations set forth therein) may be taken without the consent of the
Indenture Trustee or any Holder.
(b) Subject to the provisions of subsection (c) of this Section
8.01, the respective parties to the Indenture Documents, at any time and from
time to time, without the consent of the Indenture Trustee or of any Holder,
may:
(1) so long as no Indenture Event of Default shall have occurred and
be continuing, modify, amend or supplement the Lease, or give any waiver
with respect thereto, except that without compliance with subsection (a) of
this Section 8.01 the parties to the Lease shall not modify, amend or
supplement, or give any waiver for the purpose of adding any provisions to
or changing in any manner or eliminating any of the provisions thereof or
of modifying in any manner the rights of the respective parties thereunder,
with respect to the following provisions of the Lease as in effect on the
effective date hereof: Article 2 (provided that, if in respect of the
Term, the result thereof would not be to shorten the Term of the Lease to a
period shorter than the period ending with the Maturity of any
Certificate), Section 3.03 (except to the extent such Section relates to
amounts payable (whether directly or pursuant to this Indenture) to Persons
other than Holders, each Liquidity Provider, the Subordination Agent and
the Indenture Trustee in its individual capacity), Section 3.05, Section
3.06 (except insofar as it relates to the address or account information of
the Owner Trustee or the Indenture Trustee) (other than as such Sections
3.03, 3.05 and 3.06 may be amended pursuant to Section 3.04 of the Lease as
in effect on the effective date hereof), Section 5.01, Article 6, Article
10 (except that further restrictions may be imposed on the Lessee), Article
11 (except that additional requirements may be imposed on the Lessee),
Article 13 (except for Section 13.05 and except that additional insurance
requirements may be imposed on the Lessee), Article 14 (except in order to
increase the Lessee's liabilities or enhance the Lessor's rights
thereunder), Article 15 (except in the case of an assignment by the Lessor
in circumstances where the Aircraft shall remain registrable under the
Federal Aviation Act), Section 16.01 (except to impose additional or more
stringent Events of Default), Article 17 (except to impose additional
remedies), Section 19.01 (except to impose additional requirements on the
Lessee), Section 20.01, Article 22, Section 23.01, Section 26.03 and any
definition of terms used in the Lease, to the extent that any modification
of such definition would result in a modification of the Lease not
permitted pursuant to this subsection (b); provided that the parties to the
Lease may take any such action without the consent of the Indenture Trustee
or any Holder to the extent such action relates to the payment of amounts
constituting, or the Owner Trustee's, the Owner Participant' or the
Lessee's rights or obligations with respect to, Excepted Payments (other
than the place, time and manner of payment of Basic Rent constituting an
Excepted Payment);
(2) modify, amend or supplement the Trust Agreement and any other
Indenture Document (other than the Lease and the Participation Agreement),
or give any consent, waiver, authorization or approval with respect
thereto, in each case only to the extent any such action shall not
adversely impact the interests of the Holders;
(3) modify, amend or supplement the Participation Agreement, or give
any consent, waiver, authorization or approval with respect thereto, except
that without compliance with subsection (a) of this Section 8.01 the
parties to the Participation Agreement shall not modify, amend or
supplement, or give any consent, waiver, authorization or approval for the
purpose of adding provisions to or changing in any manner or eliminating
any of the provisions thereof or of modifying in any manner the rights of
the respective parties thereunder, with respect to the following provisions
of the Participation Agreement as in effect on the effective date hereof:
Articles 6, 8 and 9 and Section 10.01(b) (insofar as such Articles 6, 8 and
9 and Section 10.01(b) relate to the Indenture Trustee, the Pass Through
Trustee and the Holders), Article 7 and Sections 3.05 and 17.11 and any
definition of terms used in the Participation Agreement, to the extent that
any modification of such definition would result in a modification of the
Participation Agreement not permitted pursuant to this subsection (b); and
(4) modify, amend or supplement any of said agreements in order to
cure any ambiguity, to correct or supplement any provisions thereof which
may be defective or inconsistent with any other provision thereof or of any
provision of this Indenture, or to make any other provision with respect to
matters or questions arising thereunder or under this Indenture which shall
not be inconsistent with the provisions of this Indenture, provided the
making of any such other provision shall not adversely affect the interests
of the Holders.
(c) No modification, amendment, supplement, consent, waiver,
authorization or approval with respect to the Lease or the Participation
Agreement, whether effected pursuant to subsection (a) or pursuant to
subsection (b) of this Section 8.01 and anything in such subsections or
elsewhere in this Indenture to the contrary notwithstanding, shall, without
the consent of the Holder of each Outstanding Certificate affected thereby,
and each Liquidity Provider,
(1) modify, amend or supplement the Lease in such a way as to extend
the time of payment of Basic Rent or Supplemental Rent or Stipulated Loss
Value or any other amounts payable to the Indenture Trustee for its own
account or for the account of the Holders (subject in any event to Section
3.05 of the Lease) upon the occurrence of an Event of Loss, or Termination
Value or EBO Price and any other amounts payable to the Indenture Trustee
for its own account or for the account of the Holders (subject in any event
to Section 3.05 of the Lease) upon termination of the Lease with respect to
the Aircraft payable under, or as provided in, the Lease as in effect on
the effective date hereof, or reduce the amount of any installment of Basic
Rent or Supplemental Rent so that the same is less than the payment of
principal of, and interest on the Certificates and Make-Whole Premium, if
any, and amounts due to each Liquidity Provider, as the case may be, to be
made from such installment of Basic Rent or Supplemental Rent, or reduce
the aggregate amount of Stipulated Loss Value, or any other amounts payable
under, or as provided in, the Lease as in effect on the effective date
hereof upon the occurrence of an Event of Loss so that the same is less
than the accrued interest on and the principal as of the Loss Payment Date,
of the Certificates at the time Outstanding or reduce the amount of
Termination Value or EBO Price and any other amounts payable under, or as
provided in, the Lease as in effect on the effective date hereof upon
termination of the Lease with respect to the Aircraft so that the same is
less than the accrued interest on and principal as of the Lease Termination
Date or EBO Date, as the case may be, and Make-Whole Premium, if any, of
Certificates at the time Outstanding, or
(2) modify, amend or supplement the Lease in such a way as to, or
consent to any assignment of the Lease or give any consent, waiver,
authorization or approval which would, release the Lessee from its absolute
and unconditional obligations in respect of payment of Basic Rent or
Supplemental Rent, or Stipulated Loss Value and any other amounts payable
to the Indenture Trustee for its own account or the account of the Holders
(subject in any event to Section 3.05 of the Lease) upon the occurrence of
an Event of Loss, or Termination Value or EBO Price and any other amounts
payable to the Indenture Trustee for its own account or the account of the
Holders (subject in any event to Section 3.05 of the Lease) of the Lease
with respect to the Aircraft, payable under, or as provided in, the Lease
as in effect on the effective date hereof, except for any such assignment
pursuant to Section 2.12 hereof, and except as provided in the Lease as in
effect on the effective date hereof.
(d) At all times so long as this Indenture is in effect, the consent
of the Owner Trustee (at the direction of the Owner Participant) shall be
required in order (i) to amend, modify or supplement the Lease or any other
Operative Document to which the Owner Trustee is a party or to waive
compliance by the Lessee with any of its obligations thereunder and (ii) to
grant any consent requested under the Lease.
Notwithstanding the foregoing, but subject always to the provision of Section
15.05 hereof, the Indenture Trustee shall at all times have the right, to the
exclusion of the Owner Trustee and the Owner Participant, to (A) declare the
Lease to be in default under Article 17 (other than with respect to Excepted
Payments) thereof and (B) subject only to the provisions of this Indenture,
exercise the remedies set forth in such Article 17 of the Lease (other than in
connection with Excepted Payments) and in Article 7 hereof.
Nothing in this Indenture shall be deemed to prohibit the Owner
Participant or the Owner Trustee from making demand on the Lessee for, or from
commencing an action at law to obtain the payment of, or from receiving
payment of, any Excepted Payment; provided, however, that if the Owner Trustee
is proceeding under the Lease, the Owner Trustee shall proceed pursuant to
Section 17.01(a)(v), and only Section 17.01(a)(v), of the Lease.
Section 8.02. Owner Participant' Right to Elect to Prepay or
Purchase the Certificates. (a) If (i) an Event of Default shall have occurred
and be continuing for more than 180 days or the Certificates shall have become
due and payable pursuant to Section 7.02(b) or (c) hereof or (ii) an Event of
Default shall have occurred and be continuing for not more than 180 days and
the Certificates shall not have become due and payable pursuant to Section
7.02(b) or (c) hereof, the Owner Participant (or the Owner Trustee on behalf
of the Owner Participant) may, but shall be under no obligation to, do either
of the following:
(1) direct the Owner Trustee to cause the prepayment of all, but not
less than all, of the Certificates then Outstanding by notifying the
Indenture Trustee of such election, which notice in order to be effective
shall state that it is irrevocable and shall designate a Prepayment Date
which shall be a Business Day and which shall be not less than 15 days
after the date of such notice on which the Owner Trustee shall, in the
manner provided for in Section 6.04 hereof, deposit the sum of amounts
contemplated by paragraph "first" under Section 5.03 and the aggregate
Prepayment Price of all such Certificates with the Indenture Trustee. If
such payment by the Owner Trustee to the Indenture Trustee is made, the
Certificates shall cease to accrue interest from and after the Prepayment
Date, and after distribution of such payment to the Holders, the Indenture
Trustee shall release the Trust Indenture Estate from the Lien of this
Indenture; or
(2) purchase all, but not less than all, of the Outstanding
Certificates by notifying the Indenture Trustee of such election, which
notice in order to be effective shall state that it is irrevocable and
shall designate a date which shall be a Business Day and which shall be not
less than 15 days after the date of such notice on which the Owner Trustee
shall pay to the Indenture Trustee an amount equal to the aggregate unpaid
principal amount of all Outstanding Certificates, together with accrued
interest on such amount to the date of purchase, the aggregate amount of
any Make-Whole Premium applicable to each Outstanding Certificate (if such
purchase occurs prior to the Premium Termination Date for such Outstanding
Certificate) in the case of a purchase pursuant to clause (a)(ii) above,
plus all other sums due any Holder or the Indenture Trustee hereunder or
under the Participation Agreement or the Lease. Upon receipt by the
Indenture Trustee of such amount, each Holder will be deemed, whether or
not Certificates shall have been delivered to the Indenture Trustee on such
date, to have thereupon sold, assigned, transferred and conveyed (and shall
promptly take such actions as the Owner Participant shall reasonably
request to evidence such sale, assignment, transfer and conveyance) to the
Owner Participant (without recourse or warranty of any kind except for its
own acts), all of the right, title and interest of such Holder in and to
the Trust Indenture Estate and this Indenture and all Certificates held by
such Holder and the former Holders shall not be entitled to receive any
interest on the principal amount of such Certificates after the purchase
date, and the Owner Participant shall be deemed to have assumed (and shall
promptly take such actions as any Holder shall reasonably request to
evidence such assumption) all of such Holder's obligations under the
Participation Agreement and this Indenture arising subsequent to such sale.
If the Owner Trustee shall so request, such Holder will comply with all the
provisions of Section 2.06 of this Indenture to enable new Certificates to
be issued to the Owner Participant in such authorized denominations as the
Owner Participant shall request. All charges and expenses required pursuant
to Section 2.06 hereof in connection with the issuance of any such new
Certificates shall be borne by the Owner Participant.
(b) From and after the deposit by the Owner Trustee of the applicable
Prepayment Price or purchase price with the Indenture Trustee pursuant to
Section 8.02(a) hereof, the Owner Trustee shall be entitled to exercise all
remedies of the Indenture Trustee under Article VII hereof as well as of the
Lessor under the Lease.
Section 8.03. Certain Rights of Owner Participant. (a) If (A)
there shall occur an Event of Default under the Lease as a result of the
Lessee's failure to make any payment of an installment of Basic Rent, and (B)
the Owner Trustee shall have paid or caused to be paid on or prior to the date
which is 15 Business Days after such Event of Default all principal and
interest on the Certificates then due (as well as any interest on overdue
principal and (to the extent permitted by applicable law) interest), but not
including any principal or interest becoming due on account of such Event of
Default, then the failure of the Lessee to make the payment of such
installment of Basic Rent or of interest on account of such installment's
being overdue shall not constitute or result in an Indenture Event of Default
under this Indenture and any declaration based solely on the same shall be
deemed to be automatically rescinded. Nothing contained in the preceding
sentence shall be deemed to entitle the Owner Trustee to exercise any rights
and powers or pursue any remedies pursuant to Article 17 of the Lease or
otherwise except as set forth in this Indenture, and except that the Owner
Trustee or any Owner Participant may attempt to recover any amount paid by it
or them under this Indenture by demanding of the Lessee payment of such
amount, or by commencing an action at law against the Lessee for the payment
of such amount or taking appropriate action in a pending action at law against
the Lessee pursuant to Section 17.01(a)(v), but only said Section 17.01(a)(v),
of the Lease. Upon curing any such Event of Default pursuant to this Section
8.03, the Owner Trustee or the Owner Participant, as the case may be, shall,
so long as no Indenture Event of Default shall have occurred and be
continuing, be subrogated on an unsecured basis to all the rights of the
Indenture Trustee under the Lease in respect of the payment giving rise to
such Event of Default, and any right to any interest in respect of the same,
and shall be entitled to any payment of Basic Rent (or interest thereon)
actually made by the Lessee in respect of such cured payment upon receipt by
the Indenture Trustee; provided that no such amount shall be paid to the Owner
Trustee or such Owner Participant until all amounts then due and payable to
each Certificate Holder hereunder and thereunder shall have been paid in full
and no Indenture Event of Default shall have occurred and be continuing.
Notwithstanding anything in this Indenture or the Lease to the contrary, the
Owner Participant and the Owner Trustee collectively, shall not be entitled to
cure more than six (6) Events of Default (no more than three (3) of which may
be consecutive) occasioned by defaults in the payment of Basic Rent.
(b) If (A) there shall occur an Event of Default under the Lease for
any reason other than the Lessee's failure to make any payment of an
installment of Basic Rent and (B) the Owner Trustee shall have taken or caused
to be taken such action necessary to cure and shall have cured such Event of
Default prior to the date which is 15 Business Days after such Event of
Default, then the failure of the Lessee to perform such covenant, condition or
agreement, the observance or performance of which was accomplished by the
Owner Trustee hereunder shall not constitute or result in an Indenture Event
of Default under this Indenture and any declaration based solely on the same
shall be deemed to be automatically rescinded. Nothing contained in the
preceding sentence shall be deemed to entitle the Owner Trustee or any Owner
Participant to exercise any rights and powers or pursue any remedies pursuant
to Article 17 of the Lease or otherwise except as set forth in this Indenture,
and except that the Owner Trustee or the Owner Participant may attempt to
recover any amount paid by it or them in effecting such cure by demanding of
the Lessee payment of such amount, plus any interest due, or by commencing an
action at law against the Lessee for the payment of such amount or taking
appropriate action in a pending action at law against the Lessee pursuant to
Section 17.01(a)(v), but only said Section 17.01(a)(v), of the Lease. Upon
curing any such Event of Default pursuant to this Section 8.03(b), the Owner
Trustee or the Owner Participant, as the case may be, shall be subrogated to
all the rights of the Indenture Trustee under the Lease in respect of the
payment, agreement or covenant giving rise to such Event of Default, and any
right to any interest in respect of the same, and shall be entitled to any
payment or other performance upon receipt by the Indenture Trustee; provided
that no such amount shall be paid to the Owner Trustee or the Owner
Participant until all amounts then due and payable to each Certificate Holder
hereunder and thereunder shall have been paid in full and no Indenture Event
of Default shall have occurred and be continuing.
ARTICLE IX
CONCERNING THE INDENTURE TRUSTEE
Section 9.01. Acceptance of Trusts. The Indenture Trustee in its
individual capacity hereby accepts the trusts imposed upon it by this
Indenture, and covenants and agrees to perform the same as expressed herein
and agrees to receive and disburse all moneys constituting part of the Trust
Indenture Estate in accordance with the terms hereof.
Section 9.02. Duties and Responsibilities of the Indenture Trustee;
During an Indenture Event of Default; Prior to an Indenture Event of Default.
(a) The Indenture Trustee, prior to the occurrence of an Indenture Event of
Default and after the curing or waiving of all Indenture Events of Default
which may have occurred, undertakes to perform such duties and only such
duties as are specifically set forth in this Indenture. So long as an
Indenture Event of Default has occurred and has not been cured or waived, the
Indenture Trustee shall exercise such of the rights and powers vested in it by
this Indenture, and use the same degree of care and skill in their exercise,
as a prudent man would exercise or use under the circumstances in the conduct
of his own affairs. No provision of this Indenture shall be construed to
relieve the Indenture Trustee from liability for its own negligent action, its
own negligent failure to act or its own willful misconduct, except that:
(i) prior to the occurrence of an Indenture Event of Default and
after the curing or waiving of all Indenture Events of Default which may have
occurred:
(x) the duties and obligations of the Indenture Trustee shall be
determined solely by the express provisions of this Indenture, and the
Indenture Trustee shall not be liable except for the performance of such
duties and obligations as are specifically set forth in this Indenture, and no
implied covenants or obligations shall be read in to this Indenture against
the Indenture Trustee; and
(y) in the absence of bad faith on the part of the Indenture
Trustee, the Indenture Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed therein, upon any
statements, certificates or opinions furnished to the Indenture Trustee and
conforming to the requirements of this Indenture; but in the case of any such
statements, certificate or opinions which by any provision hereof are
specifically required to be furnished to the Indenture Trustee, the Indenture
Trustee shall be under a duty to examine the same to determine whether or not
they conform to the requirements of this Indenture;
(ii) the Indenture Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer or Responsible Officers
of the Indenture Trustee, unless it shall be proved that the Indenture Trustee
was negligent in ascertaining the pertinent facts; and
(iii) the Indenture Trustee shall not be liable with respect to any
action taken or not taken by it in good faith in accordance with the direction
of the Holders of not less than a majority in aggregate principal amount of
Outstanding Certificates relating to the time, method and place of conducting
any proceeding for any remedy available to the Indenture Trustee, or
exercising any trust or power conferred upon the Indenture Trustee, under this
Indenture.
None of the provisions contained in this Indenture shall require the
Indenture Trustee to expend or risk its own funds or otherwise incur personal
financial liability in the performance of any of its duties or in the exercise
of any of its rights or powers, if the Indenture Trustee shall have determined
in good faith that the repayment of such funds or adequate indemnity against
such liability is not reasonably assured to it.
The Indenture Trustee agrees that it will execute and the Owner
Trustee agrees that it will file or cause to be filed such continuation
statements with respect to financing statements relating to the security
interest created hereunder in the Trust Indenture Estate as may be specified
from time to time in written instructions of the Holders of not less than 25%
in aggregate principal amount of Certificates (which instructions may, by
their terms, be operative only at a future date and which shall be accompanied
by the execution form of such continuation statement so to be filed); provided
that, notwithstanding the foregoing, the Indenture Trustee may execute and
file or cause to be filed any financing statement which it from time to time
deems appropriate.
(b) If any Event of Default shall have occurred and be continuing
and, after the latest date on which the Owner Trustee may cure such Event of
Default pursuant to Section 8.03 hereof, on request of the Holders of not less
than 25% in aggregate principal amount of Outstanding Certificates and subject
to indemnification, to the extent provided in Sections 7.08 and 9.03 and
Article XI hereof, as it may require against the costs, expenses and
liabilities to be incurred, the Indenture Trustee shall exercise such remedies
under Article 17 of the Lease as shall be specified in such request.
(c) The Indenture Trustee agrees that it will, in its individual
capacity and at its own cost and expense (but without any right of indemnity
in respect of any such cost or expense under Article XI hereof) promptly take
such action as may be necessary duly to discharge all Indenture Trustee's
Liens on any part of the Trust Indenture Estate.
(d) The Indenture Trustee will execute and deliver to the Lessee for
filing in accordance with Article 18 of the Lease any properly presented
document, instrument or financing or continuation statement specified in any
opinion delivered pursuant to Section 6.03(e) of the Participation Agreement.
The Indenture Trustee may rely on the act of presentation of any such
document, instrument, financing or continuation statement as evidencing the
fact that it is properly prepared and presented, provided that the Indenture
Trustee shall promptly correct any error in any such document, instrument,
financing or continuation statement of which a Responsible Officer of the
Indenture Trustee has actual knowledge.
(e) The Indenture Trustee will furnish to each Holder promptly upon
receipt thereof, duplicates or copies of all reports, notices, requests,
demands, certificates, financial statements and other instruments furnished to
the Indenture Trustee, to the extent that the same shall not have been
otherwise furnished to such Holder pursuant to this Indenture or to the extent
the Indenture Trustee does not reasonably believe that the same shall have
been furnished by the Lessee directly to such Holder.
Section 9.03. Certain Rights of the Indenture Trustee. Subject to
Section 9.02 hereof:
(a) the Indenture Trustee may rely and shall be protected in acting
or refraining from acting upon any resolution, Officer's Certificate or any
other certificate, statement, instrument, opinion, report, notice, request,
consent, order, bond, debenture, note, coupon, security 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, direction, order or demand of the Owner Trustee
mentioned herein shall be sufficiently evidenced by an Officer's
Certificate (unless other evidence in respect thereof be herein
specifically prescribed) upon which the Indenture Trustee may rely to prove
or establish a matter set forth therein;
(c) the Indenture Trustee may consult with counsel and any advice or
Opinion of Counsel shall be full and complete authorization and protection
in respect of any action taken, suffered or omitted to be taken by it
hereunder in good faith and in accordance with such advice or Opinion of
Counsel;
(d) the Indenture Trustee shall be under no obligation to exercise
any of the trusts or powers vested in it by this Indenture at the request,
order or direction of any of the Holders pursuant to the provisions of this
Indenture, unless such Holders shall have offered to the Indenture Trustee
reasonable security or indemnity against the costs, expenses and
liabilities which might be incurred therein or thereby;
(e) the Indenture Trustee shall not be liable for any action taken
or omitted by it in good faith and believed by it to be authorized or
within the discretion, rights or powers conferred upon it by this Indenture;
(f) prior to the occurrence of an Indenture Event of Default
hereunder and after the curing or waiving of all Indenture Events of
Default, the Indenture Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, approval,
appraisal, bond, debenture, note, coupon, security, or other paper or
document unless requested in writing to do so by the Majority in Interest
of Certificate Holders; provided that, if the payment within a reasonable
time to the Indenture Trustee of the costs, expenses or liabilities likely
to be incurred by it in the making of such investigation is, in the opinion
of the Indenture Trustee, not reasonably assured to the Indenture Trustee
by the security afforded to it by the terms of this Indenture, the
Indenture Trustee may require reasonable indemnity against such costs,
expenses or liabilities as a condition to proceeding; the reasonable
expenses of every such examination shall be paid by the Owner Trustee or,
if paid by the Indenture Trustee or any predecessor trustee, shall be
repaid by the Owner Trustee upon demand; and
(g) the Indenture Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
agents or attorneys not regularly in its employ and the Indenture Trustee
shall not be responsible for any misconduct or negligence on the part of
any such agent or attorney appointed with due care by it hereunder.
Section 9.04. Indenture Trustee Not Responsible for Recitals,
Disposition of Certificates or Application of Proceeds Thereof. The Indenture
Trustee assumes no responsibility for the correctness of the recitals
contained herein and in the Certificates, except the Indenture Trustee's
certificates of authentication. The Indenture Trustee makes no
representation as to the validity or sufficiency of this Indenture or of the
Certificates. The Indenture Trustee shall not be accountable for the use or
application by the Owner Trustee of any of the Certificates or of the proceeds
thereof.
Section 9.05. Indenture Trustee and Agents May Hold Certificates;
Collections, etc. The Indenture Trustee or any agent of the Indenture Trustee
in its individual or any other capacity may become the owner or pledgee of
Certificates with the same rights it would have if it were not the Indenture
Trustee or such agent and may otherwise deal with the Owner Trustee and
receive, collect, hold and retain collections from the Owner Trustee with the
same rights it would have if it were not the Indenture Trustee or such agent.
Section 9.06. Moneys Held by Indenture Trustee. Subject to Sections
5.08 hereof and 14.04 hereof, all moneys received by the Indenture Trustee
shall, until used or applied as herein provided, be held in trust for the
purposes for which they were received, but need not be segregated from other
funds except to the extent required by mandatory provisions of law. Neither
the Owner Trustee nor, subject to Section 5.08 hereof, the Indenture Trustee
nor any agent thereof shall be under any liability for interest on any moneys
received by it hereunder.
Section 9.07. Right of Indenture Trustee to Rely on Officer's
Certificate, etc. Subject to Sections 9.02 and 9.03 hereof, whenever in the
administration of the trusts of this Indenture the Indenture Trustee shall
deem it necessary or desirable that a matter be proved or established prior to
taking or suffering or omitting any action hereunder, such matter (unless
other evidence in respect thereof be specifically prescribed herein) may, in
the absence of bad faith on the part of the Indenture Trustee, be deemed to be
conclusively proved and established by an Officer's Certificate delivered to
the Indenture Trustee, and such certificate, in the absence of bad faith on
the part of the Indenture Trustee, shall be full warrant to the Indenture
Trustee for any action taken, suffered or omitted by it under the provisions
of this Indenture upon the faith thereof.
Section 9.08. Replacement Airframes and Replacement Engines. At any
time and from time to time any Airframe or Engine which has been subject to an
Event of Loss and may, or is required to, be replaced under Section 10.03,
11.03 or 11.04 of the Lease by a Replacement Airframe or Replacement Engine,
as the case may be, shall be replaced in accordance with the provisions of
this Section 9.08 and the provisions of said Sections of the Lease, the Owner
Trustee shall, from time to time, direct the Indenture Trustee to execute and
deliver to or as directed in writing by the Owner Trustee an appropriate
instrument releasing such Airframe and/or Engine as appropriate from the Lien
of this Indenture and the Indenture Trustee shall execute and deliver such
instrument as aforesaid without recourse or warranty, but only upon receipt by
or deposit with the Indenture Trustee of the following:
(1) A written request from the Owner Trustee requesting such release
and specifically describing the Airframe and/or Engine(s) to be so released.
(2) A certificate signed by a duly authorized officer of the Lessee
stating the following:
A. With respect to the replacement of any Airframe:
(i) a description of the Airframe subject to the Event of Loss
including the manufacturer, model, FAA registration number (or other
applicable registration information) and manufacturer's serial number;
(ii) a description of the Replacement Airframe, including the
manufacturer, model, FAA registration number (or other applicable
registration information) and manufacturer's serial number;
(iii) that on the date of the Indenture and Security Agreement
Supplement relating to the Replacement Airframe the Owner Trustee
will be the legal owner of and have good and marketable title to such
Replacement Airframe free and clear of all Liens except Liens
permitted under Section 6.01 of the Lease, that such Replacement
Airframe will on such date be in at least as good operating condition
and repair as required by the terms of the Lease, and that such
Replacement Airframe has been or, substantially concurrently with
such replacement, will be duly registered in the name of the Owner
Trustee under the Transportation Code or under the law then
applicable to the registration of the Airframe subject to the Event
of Loss and that an airworthiness certificate has been duly issued
under the Transportation Code (or such other applicable law) with
respect to such Replacement Airframe and that such registration and
certificate is, or will be, in full force and effect, and that the
Lessee will have the full right and authority to use such Replacement
Airframe;
(iv) that the insurance required by Article 13 of the Lease is in
full force and effect with respect to such Replacement Airframe and
all premiums then due thereon have been paid in full;
(v) that the Replacement Airframe is of the same or an improved make
or model as the Airframe requested to be released from this Indenture;
(vi) that the value of the Replacement Airframe as of the date of such
certificate is not less than the value of the Airframe requested to
be released (assuming such Airframe was in the condition and repair
required to be maintained under the Lease);
(vii) that no Event of Default has occurred and is continuing or
would result from the making and granting of the request for release
and the addition of a Replacement Airframe;
(viii) that the release of the Airframe subject to the Event of Loss
will not impair the security of the Indenture in contravention of any
of the provisions of this Indenture;
(ix) that upon such replacement, the Lien of this Indenture will
apply to the Replacement Airframe and such Lien will be a first
priority security interest in favor of the Indenture Trustee; and
(x) that each of the conditions specified in Section 11.03 of the
Lease with respect to such Replacement Airframe has been satisfied.
B. With respect to the replacement of any Engine:
(i) a description of the Engine subject to the Event of Loss
including the manufacturer's serial number;
(ii) a description of the Replacement Engine including the
manufacturer's name, the engine model and serial number;
(iii) that on the date of the Indenture and Security Agreement
Supplement relating to the Replacement Engine the Owner Trustee will
be the legal owner of such Replacement Engine free and clear of all
Liens except Liens permitted under Section 6.01 of the Lease, and
that such Replacement Engine will on such date be in at least as good
operating condition and repair as required by the terms of the Lease;
(iv) that the value of the Replacement Engine as of the date of such
certificate is not less than the value of the Engine to be released
(assuming such Engine was in the condition and repair required to be
maintained under the Lease);
(v) that the release of the Engine subject to the Event of Loss will
not impair the security of the Indenture in contravention of any of
the provisions of this Indenture;
(vi) that upon such replacement, the Lien of this Indenture will
apply to the Replacement Engine and such Lien will be a first
priority security interest in favor of the Indenture Trustee; and
(vii) that each of the conditions specified in Section 10.03, 11.03
or 11.04 of the Lease with respect to such Replacement Engine has
been satisfied.
(3) The appropriate instruments (i) transferring to the Owner
Trustee title to the Replacement Airframe or Replacement Engine to be received
as consideration for the Airframe or Engine to be released and (ii) assigning
to the Owner Trustee the benefit of all manufacturer's and vendor's
warranties, if any, generally available with respect to such Replacement
Airframe or Replacement Engine, and an Indenture and Security Agreement
Supplement subjecting such Replacement Airframe or Replacement Engine to the
Trust Agreement and to the Lien of this Indenture.
(4) A certificate from a firm of independent aircraft appraisers of
national standing satisfactory to the Indenture Trustee and the Owner Trustee
confirming the accuracy of the information set forth in clause (2)A.(vi) of
this Section 9.08.
(5) The opinion of Davis Polk & Wardwell, special counsel to the
Lessee, or other counsel reasonably satisfactory to the Indenture Trustee,
stating that:
(i) the certificates, opinions and other instruments and/or property
which have been or are therewith delivered to and deposited with the
Indenture Trustee conform to the requirements of this Indenture and the
Lease and, upon the basis of such application, the property so sold or
disposed of may be properly released from the Lien of this Indenture and
all conditions precedent herein provided for relating to such release have
been complied with; and
(ii) the Replacement Airframe or Replacement Engine has been validly
subjected to the Lien of this Indenture and covered by the Lease, the
instruments subjecting such Replacement Airframe or Replacement Engine to
the Lease and to the Lien of this Indenture, as the case may be, have been
duly filed for recordation pursuant to the Transportation Code or any other
law then applicable to the registration of the Aircraft, and no further
action, filing or recording of any document is necessary or advisable in
order to establish and perfect the title of the Owner Trustee to and the
Lien of this Indenture on such Replacement Airframe or Replacement Engine
and the Indenture Trustee would be entitled to the benefits of Section 1110
of the Bankruptcy Code with respect to such Replacement Airframe or
Replacement Engine, provided, that such opinion need not be to the effect
specified in the foregoing clause to the extent that the benefits of such
Section 1110 would not have been, by reason of a change in law or
governmental interpretation thereof after the date hereof, available to the
Indenture Trustee with respect to the Aircraft immediately prior to such
substitution had such Event of Loss not occurred.
Section 9.09. Indenture and Security Agreement Supplement for
Replacements. In the event of the substitution of a Replacement Airframe or a
Replacement Engine as contemplated by Section 10.03 or Article 11 of the
Lease, the Owner Trustee and the Indenture Trustee agree for the benefit of
the Holders and the Lessee, subject to fulfillment of the conditions precedent
and compliance by the Lessee with its obligations set forth in Section 10.03
or Article 11 of the Lease, to execute and deliver an Indenture and Security
Agreement Supplement as contemplated by Section 9.08(3) hereof and, provided
no Event of Default shall have occurred and be continuing, execute and deliver
to the Lessee an appropriate instrument releasing the Airframe or Engine being
replaced from the Lien of this Indenture.
Section 9.10. Effect of Replacement. In the event of the
substitution of a Replacement Airframe or a Replacement Engine as contemplated
by Section 10.01 or Article 11 of the Lease and Section 9.08 hereof, all
provisions of this Indenture relating to the Airframe or Engine or Engines
being replaced shall be applicable to such Replacement Airframe or Replacement
Engine or Engines with the same force and effect as if such Replacement
Airframe or Replacement Engine or Engines were the same Airframe or engine or
engines, as the case may be, as the Airframe or Engine or Engines being
replaced but for the Event of Loss with respect to the Airframe or Engine or
Engines being replaced.
Section 9.11. Compensation. The Owner Trustee covenants and agrees
to pay, and the Indenture Trustee shall be entitled to receive, reasonable
compensation and payment or reimbursement for its reasonable advances,
expenses and disbursements (including the reasonable compensation and expenses
and disbursements of its counsel, agents and other persons not regularly in
its employ) in connection with its services rendered hereunder or in any way
relating to or arising out of the administration of the Trust Indenture Estate
and shall have a priority claim on the Trust Indenture Estate for the payment
of such compensation, advances, expenses and disbursements to the extent that
such compensation, advances, expenses and disbursements shall not be paid by
the Lessee, and shall have the right to use or apply any moneys held by it
hereunder in the Trust Indenture Estate toward such payments; provided that,
so long as the Lease is in effect, the Indenture Trustee shall not make any
claim for payment under this Section 9.11 against the Owner Trustee without
first making demand on the Lessee for payment of such claim. The Indenture
Trustee agrees that it shall have no right against any Holder, SSB or the
Owner Participant for any fee as compensation for its services as trustee
under this Indenture.
ARTICLE X
CONCERNING THE HOLDERS
Section 10.01. Evidence of Action Taken by Holders. (a) Any
request, demand, authorization, direction, notice, consent, waiver or other
action provided by this Indenture to be given or taken by Holders may be
embodied in and evidenced by one or more instruments of substantially similar
tenor signed by such Holders in person or by an agent duly appointed in
writing, and, except as otherwise expressly provided herein, such action shall
become effective when such instrument or instruments are delivered to the
Indenture Trustee and, if expressly required herein, to the Owner Trustee.
Proof of execution of any instrument or of a writing appointing any such agent
shall be sufficient for any purpose of this Indenture and (subject to Sections
9.02 and 9.03 hereof) conclusive in favor of the Indenture Trustee and the
Owner Trustee, if made in the manner provided in this Article.
(b) For the purpose of determining the Holders entitled to vote or
consent to any direction, waiver or other action of such Holders under Section
7.10 or 7.11 hereof, the Lessee may set a record date for such vote or consent
by specifying such record date in an Officer's Certificate delivered to the
Indenture Trustee. Such record date shall be a date not more than 15 days
prior to the first solicitation of such vote or consent.
Section 10.02. Proof of Execution of Instruments and of Holding of
Certificates. Subject to Sections 9.02 and 9.03 hereof, the execution of any
instrument by a Holder or his agent or proxy may be proved in accordance with
such reasonable rules and regulations as may be prescribed by the Indenture
Trustee. The holding of Certificates shall be proved by the Register or by a
certificate of the Registrar.
Section 10.03. Holders to Be Treated as Owners. Prior to due
presentment for registration of transfer of any Certificate, the Owner
Trustee, the Indenture Trustee, any agent of the Owner Trustee or the
Indenture Trustee, the Paying Agent, if any, the Registrar and the Lessee
shall deem and treat the Person in whose name such Certificate shall be
registered upon the Register as the absolute owner of such Certificate
(whether or not such Certificate shall be overdue and notwithstanding any
notation of ownership or other writing thereon) for the purpose of receiving
payment of or on account of the principal of and, subject to the provisions of
this Indenture, interest on such Certificate and for all other purposes; and
neither the Owner Trustee nor the Indenture Trustee (nor any agent of the
Owner Trustee or the Indenture Trustee) nor the Paying Agent, if any, nor the
Registrar nor the Lessee shall be affected by any notice to the contrary. All
such payments so made to any such person, or upon his order, shall be valid,
and, to the extent of the sum or sums so paid, effectual to satisfy and
discharge the liability for moneys payable upon any such Certificate.
Section 10.04. Certificates Owned by Owner Trustee and the Lessee
Deemed Not Outstanding. In determining whether the Holders of the requisite
aggregate principal amount of Certificates have concurred in any direction,
consent or waiver under this Indenture, Certificates which are owned by the
Owner Trustee, any Owner Participant, SSB, the Lessee or by any Affiliate
thereof shall be disregarded and deemed not to be Outstanding for the purpose
of any such determination; provided that for the purpose of determining
whether the Indenture Trustee shall be protected in relying on any such
direction, consent or waiver, only if a Responsible Officer of the Indenture
Trustee has actual knowledge that certain Certificates are so owned by any
person directly or indirectly controlling or controlled by or under direct or
indirect common control with the Owner Trustee, such Owner Participant, SSB or
the Lessee shall such Certificates be so disregarded; and provided further
that if all Certificates which would be deemed Outstanding in the absence of
the foregoing provision are owned by the Owner Trustee, SSB or any Owner
Participant or by any Affiliate thereof, then such Certificates shall be
deemed Outstanding for the purpose of any such determination. Certificates
so owned which have been pledged in good faith may be regarded as Outstanding
if the pledgee establishes to the satisfaction of the Indenture Trustee the
pledgee's right so to act with respect to such Certificates and that the
pledgee is not the Owner Trustee, the Owner Participant, SSB or the Lessee or
any Person directly or indirectly controlling or controlled by or under direct
or indirect common control with the Owner Trustee, the Owner Participant, SSB
or the Lessee. In case of a dispute as to such right, the advice of counsel
shall be full protection in respect of any decision made by the Indenture
Trustee in accordance with such advice, unless the Lessee, the Owner Trustee,
SSB, or the Owner Participant are actually named in the Register. Upon
request of the Indenture Trustee, the Owner Trustee, the Owner Participant,
SSB and the Lessee shall furnish to the Indenture Trustee promptly an
Officer's Certificate listing and identifying all Certificates, if any, known
by the Owner Trustee, the Owner Participant, SSB or the Lessee to be owned or
held by or for the account of any of the above-described persons; and, subject
to Sections 9.02 and 9.03 hereof, the Indenture Trustee shall be entitled to
accept such Officer's Certificate as conclusive evidence of the facts set
forth therein and of the fact that all Certificates not listed therein are
outstanding for the purpose of any such determination.
Section 10.05. Right of Revocation of Action Taken. At any time
prior to (but not after) the evidencing to the Indenture Trustee, as provided
in Section 10.01, of the taking of any action by the Holders of the percentage
in aggregate principal amount of the Certificates specified in this Indenture
in connection with such action, any Holder of a Certificate, the serial number
of which is shown by the evidence to be included among the serial numbers of
the Certificates the Holders of which have consented to such action, may, by
filing written notice at the Corporate Trust Administration and upon proof of
holding as provided in this Article, revoke such action so far as concerns
such Certificate. Except as aforesaid, any such action taken by the Holder
shall be conclusive and binding upon such Holder and upon all future Holders
and owners of such Certificate and of any Certificates issued in exchange or
substitution therefor, irrespective of whether or not any notation in regard
thereto is made upon any such Certificate or otherwise. Any action taken by
the Holders of the percentage in aggregate principal amount of the
Certificates specified in this Indenture in connection with such action shall
be conclusively binding upon the Owner Trustee, the Indenture Trustee and the
Holders of all the Certificates.
Section 10.06. ERISA. Any Person, other than the Subordination
Agent, who is acquiring the Certificates will be deemed to represent and
warrant that (i) no assets of an employee benefit plan subject to Title I of
ERISA or an individual retirement account or plan subject to Section 4975 of
the Code, or any trust established under any such plan or account, have been
used to acquire or hold any of the Certificates, or (ii) that one or more
administrative or statutory exemptions from the prohibited transaction rules
under Section 406 of ERISA and Section 4975 of the Code applies to its
purchase and holding of the Certificates such that its purchase and holding of
the Certificates will not result in a non-exempt prohibited transaction under
Section 406 of ERISA and Section 4975 of the Code.
ARTICLE XI
INDEMNIFICATION OF INDENTURE
TRUSTEE BY OWNER TRUSTEE
The Owner Trustee, not individually but solely in its capacity as
Owner Trustee under the Trust Agreement, hereby agrees, whether or not any of
the transactions contemplated hereby shall be consummated, to assume liability
for, and does hereby indemnify, protect, save and keep harmless the Indenture
Trustee, in its individual capacity, and its successors, assigns, agents and
servants solely from the Lessor's Estate, with respect to the claims of the
Indenture Trustee for payment or reimbursement under Section 9.11 hereof and
from and against any and all liabilities, obligations, losses, damages,
penalties, taxes (excluding any taxes payable by the Indenture Trustee on or
measured by any compensation received by the Indenture Trustee for its
services under this Indenture), claims, actions, suits, costs, expenses or
disbursements (including legal fees and expenses) of any kind and nature
whatsoever which may be imposed on, incurred by or asserted against the
Indenture Trustee (whether or not also agreed to be indemnified against by any
other person under any other document) in any way relating to or arising out
of this Indenture, or any other Indenture Documents or the enforcement of any
of the terms of any thereof, or in any way relating to or arising out of the
manufacture, purchase, acceptance, nonacceptance, rejection, ownership,
delivery, lease, possession, use, operation, condition, sale, return or other
disposition of the Aircraft or any Engine (including, without limitation,
latent and other defects, whether or not discoverable, and any claim for
patent, trademark or copyright infringement), or in any way relating to or
arising out of the administration of the Trust Indenture Estate or the action
or inaction of the Indenture Trustee hereunder, except only (a) in the case of
willful misconduct or gross negligence of the Indenture Trustee in the
performance of its duties hereunder, (b) as may result from the inaccuracy of
any representation or warranty of the Indenture Trustee in the Participation
Agreement, (c) as otherwise provided in Section 9.02(c) hereof or (d) as
otherwise excluded by the terms of Article 8 or Article 9 of the Participation
Agreement from the Lessee's general indemnity or general tax indemnity to the
Indenture Trustee under said Articles; provided that so long as the Lease is in
effect, the Indenture Trustee shall not make any claim under this Article XI
for any claim or expense indemnified by the Lessee under the Participation
Agreement without first making demand on the Lessee for payment of such claim
or expense. The Indenture Trustee shall be entitled to indemnification, from
the Trust Indenture Estate, for any liability, obligation, loss, damage,
penalty, claim, action, suit, cost, expense or disbursement indemnified
against pursuant to this Article XI to the extent not reimbursed by the Lessee
or others, but without releasing any of them from their respective agreements
of reimbursement; and to secure the same the Indenture Trustee shall have a
prior Lien on the Trust Indenture Estate. The indemnities contained in this
Article XI shall survive the termination of this Indenture and the resignation
or removal of the Indenture Trustee. Upon payment in full by the Owner
Trustee of any indemnity pursuant to this Article XI, the Owner Trustee shall,
so long as no Indenture Event of Default shall have occurred and be
continuing, be subrogated to the rights of the Indenture Trustee, if any, in
respect of the matter as to which the indemnity was paid.
ARTICLE XII
SUCCESSOR TRUSTEES
Section 12.01. Notice of Successor Owner Trustee. In the case of any
appointment of a successor to the Owner Trustee pursuant to the Trust
Agreement or any merger, conversion, consolidation or sale of substantially
all of the corporate trust business of the Owner Trustee pursuant to the Trust
Agreement, the successor Owner Trustee shall give prompt written notice
thereof to the Indenture Trustee.
Section 12.02. Resignation and Removal of Indenture Trustee;
Appointment of Successor. (a) The Indenture Trustee or any successor thereto
may resign at any time without cause by giving at least 30 days' prior written
notice to the Owner Trustee, the Owner Participant, the Lessee and each
Holder, such resignation to be effective upon the acceptance of the
trusteeship by a successor Indenture Trustee. In addition, the Majority in
Interest of the Certificate Holders or the Owner Trustee, with the consent of
the Lessee and the Majority in Interest of the Certificate Holders may at any
time remove the Indenture Trustee without cause by an instrument in writing
delivered to the Lessee, the Owner Trustee, the Owner Participant, and the
Indenture Trustee, and the Indenture Trustee shall promptly notify each Holder
thereof of such action in writing, such removal to be effective upon the
acceptance of the trusteeship by a successor Indenture Trustee. In the case
of the resignation or removal of the Indenture Trustee, the Majority in
Interest of the Certificate Holders, or the Owner Trustee, with the consent of
the Lessee and the Majority in Interest of the Certificate Holders, may
appoint a successor Indenture Trustee by an instrument signed by such Holders.
If a successor Indenture Trustee shall not have been appointed within 30 days
after such notice of resignation or removal, the Indenture Trustee, the Owner
Trustee, the Lessee, the Owner Participant, or any Holder may apply to any
court of competent jurisdiction to appoint a successor Indenture Trustee to
act until such time, if any, as a successor shall have been appointed as
provided above. The successor Indenture Trustee so appointed by such court
shall immediately and without further act be superseded by any successor
Indenture Trustee appointed as provided above.
(b) In case at any time any of the following shall occur:
(i) the Indenture Trustee shall cease to be eligible in accordance
with the provisions of Section 12.03 hereof and shall fail to resign after
written request therefor by the Owner Trustee or by any Holder; or
(ii) the Indenture Trustee shall become incapable of acting, or shall
be adjudged a bankrupt or insolvent, or a receiver or liquidator of the
Indenture Trustee or of its property shall be appointed, or any public
officer shall take charge or control of the Indenture Trustee or of its
property or affairs for the purpose of rehabilitation, conservation or
liquidation;
then the Owner Trustee may remove the Indenture Trustee and, with the consent
of the Lessee, appoint a successor trustee by written instrument, in
duplicate, executed by a Responsible Officer of the Owner Trustee, one copy of
which instrument shall be delivered to the Indenture Trustee so removed and
one copy to the successor trustee, or, subject to the provisions of Section
7.13 hereof, any Holder who has been a bona fide Holder 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 Indenture Trustee
and the appointment of a successor trustee. Such court may thereupon, after
such notice, if any, as it may deem proper and prescribe, remove the Indenture
Trustee and appoint a successor trustee, which removal and appointment shall
become effective upon acceptance of appointment by the successor trustee as
provided in Section 12.04 hereof. The successor Indenture Trustee so
appointed by such court shall immediately and without further act be
superseded by any successor Indenture Trustee appointed as provided above
within one year from the date of appointment by such court.
Section 12.03. Persons Eligible for Appointment as Indenture
Trustee. There shall at all times be an Indenture Trustee hereunder which
shall be (i)(x) a bank or trust company organized and doing business under the
laws of the United States of America or any state or the District of Columbia
having a combined capital and surplus of at least $100,000,000 or (y) a bank
or trust company whose obligations hereunder are fully guaranteed by a direct
or indirect parent thereof having a combined capital and surplus of at least
$100,000,000 and (ii) a Citizen of the United States authorized under
applicable law to exercise corporate trust powers and subject to supervision of
examination by Federal, state or District of Columbia authority. If such
corporation publishes reports of condition at least annually, pursuant to law
or to the requirements of the aforesaid supervising or examining authority,
then for the purposes of this Section, 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 condition so published. In case at any
time the Indenture Trustee shall cease to be eligible in accordance with the
provisions of this Section, the Indenture Trustee shall resign immediately in
the manner and with the effect specified in Section 12.02 hereof.
Section 12.04. Acceptance of Appointment by Successor Trustee. Any
successor trustee appointed as provided in Section 12.02 hereof shall execute
and deliver to the Owner Trustee, the Lessee, and to its predecessor trustee
an instrument accepting such appointment hereunder, in form and substance
reasonably satisfactory to the Owner Trustee, and thereupon the resignation or
removal of the predecessor trustee shall become effective and such successor
trustee, without any further act, deed or conveyance, shall become vested with
all rights, powers, duties and obligations of its predecessor hereunder, with
like effect as if originally named as trustee herein; but, nevertheless, on
the written request of the Owner Trustee or of the successor trustee, upon
payment of its charges then unpaid, the trustee ceasing to act shall, subject
to Section 14.04 hereof, pay over to the successor trustee all moneys at the
time held by it hereunder and shall execute and deliver an instrument
transferring to such successor trustee all such rights, powers, duties and
obligations. Upon request of any such successor trustee, the Owner Trustee
shall execute any and all instruments in writing for more fully and certainly
vesting in and confirming to such successor trustee all such rights and
powers. Any trustee ceasing to act shall, nevertheless, retain a prior claim
upon all property or funds held or collected by such trustee to secure any
amounts then due it pursuant to the provisions of Article XI hereof.
No successor trustee shall accept appointment as provided in this
Section 12.04 unless at the time of such acceptance such successor trustee
shall be eligible under the provisions of Section 12.03 hereof.
Upon acceptance of appointment by a successor trustee as provided in
this Section 12.04, the successor trustee shall mail notice thereof by
first-class mail to the Holders at their last addresses as they shall appear
in the Register, and shall mail a copy of such notice to the Lessee and the
Owner Trustee. If the acceptance of appointment is substantially
contemporaneous with the resignation, then the notice called for by the
preceding sentence may be combined with the notice called for by Section 12.02
hereof.
Section 12.05. Merger, Conversion, Consolidation or Succession to
Business of Indenture Trustee. Any corporation into which the Indenture
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 Indenture Trustee shall be a party, or any corporation succeeding to
the corporate trust business of the Indenture Trustee, shall be the successor
to the Indenture Trustee hereunder, provided that, anything herein to the
contrary notwithstanding, such corporation shall be eligible under the
provisions of Section 12.03 hereof, without the execution or filing of any
paper or any further act on the part of any of the parties hereto.
In case at the time such successor to the Indenture Trustee shall
succeed to the trusts created by this Indenture any of the Certificates shall
have been authenticated but not delivered, any such successor to the Indenture
Trustee may adopt the certificate of authentication of any predecessor
Indenture Trustee and deliver such Certificates so authenticated; and, in case
at that time any of the Certificates shall not have been authenticated, any
successor to the Indenture Trustee may authenticate such Certificates either
in the name of any predecessor hereunder or in the name of the successor
Indenture Trustee; and in all such cases such certificate shall have the full
force which it is anywhere in the Certificates or in this Indenture provided
that the certificate of the Indenture Trustee shall have; provided, that the
right to adopt the certificate of authentication of any predecessor Indenture
Trustee or to authenticate Certificates in the name of any predecessor
Indenture Trustee shall apply only to its successor or successors by merger,
conversion or consolidation.
Section 12.06. Appointment of Separate Trustees. (a) At any time or
times, for the purpose of meeting any legal requirements of any jurisdiction
in which any part of the Trust Indenture Estate may at the time be located or
in which any action of the Indenture Trustee may be required to be performed
or taken, the Indenture Trustee, by an instrument in writing signed by it, may
appoint one or more individuals or corporations to act as a separate trustee
or separate trustees or co-trustee, acting jointly with the Indenture Trustee,
of all or any part of the Trust Indenture Estate, to the full extent that
local law makes it necessary for such separate trustee or separate trustees or
co-trustee acting jointly with the Indenture Trustee to act.
(b) The Indenture Trustee and, at the request of the Indenture
Trustee, the Owner Trustee, shall execute, acknowledge and deliver all such
instruments as may be required by the legal requirements of any jurisdiction
or by any such separate trustee or separate trustees or co-trustee for the
purpose of more fully confirming such title, rights or duties to such separate
trustee or separate trustees or co-trustee. Upon the acceptance in writing of
such appointment by any such separate trustee or separate trustees or
co-trustee, it, he or they shall be vested with such title to the Trust
Indenture Estate or any part thereof, and with such rights, powers, duties and
obligations, as shall be specified in the instrument of appointment, and such
rights, powers, duties and obligations shall be conferred or imposed upon and
exercised or performed by the Indenture Trustee, or the Indenture Trustee and
such separate trustee or separate trustees or co-trustee jointly with the
Indenture Trustee subject to all the terms of this Indenture, except to the
extent that under any law of any jurisdiction in which any particular act or
acts are to be performed the Indenture Trustee shall be incompetent or
unqualified to perform such act or acts, in which event such rights, powers,
duties and obligations shall be exercised and performed by such separate
trustee or separate trustees or co-trustee, as the case may be. Any separate
trustee or separate trustees or co-trustee may, at any time by an instrument
in writing, constitute the Indenture Trustee its or his attorney-in-fact and
agent with full power and authority to do all acts and things and to exercise
all discretion on its or his behalf and in its or his name. In case any such
separate trustee or co-trustee shall die, become incapable of acting, resign
or be removed, the title to the Trust Indenture Estate and all assets,
property, rights, powers, duties and obligations and duties of such separate
trustee or co-trustee shall, so far as permitted by law, vest in and be
exercised by the Indenture Trustee, without the appointment of a successor to
such separate trustee or co-trustee unless and until a successor is appointed.
(c) All provisions of this Indenture which are for the benefit of
the Indenture Trustee (including without limitation Article XI hereof) shall
extend to and apply to each separate trustee or co-trustee appointed pursuant
to the foregoing provisions of this Section 12.06.
(d) Every additional trustee and separate trustee hereunder shall,
to the extent permitted by law, be appointed and act and the Indenture Trustee
shall act, subject to the following provisions and conditions:
(i) all powers, duties, obligations and rights conferred upon the
Indenture Trustee in respect of the receipt, custody, investment and
payment of moneys shall be exercised solely by the Indenture Trustee;
(ii) all other rights, powers, duties and obligations conferred or
imposed upon the Indenture Trustee shall be conferred or imposed and
exercised or performed by the Indenture Trustee and such additional trustee
or trustees and separate trustee or trustees jointly except to the extent
that under any law of any jurisdiction in which any particular act or acts
are to be performed, the Indenture Trustee shall be incompetent or
unqualified to perform such act or acts, in which event such rights,
powers, duties and obligations (including the holding of title to the Trust
Indenture Estate in any such jurisdiction) shall be exercised and performed
by such additional trustee or trustees or separate trustee or trustees;
(iii) no power hereby given to, or exercisable by, any such additional
trustee or separate trustee shall be exercised hereunder by such additional
trustee or separate trustee except jointly with, or with the consent of,
the Indenture Trustee; and
(iv) no trustee hereunder shall be liable either personally or in its
capacity as such trustee, by reason of any act or omission of any other
trustee hereunder.
If at any time the Indenture Trustee shall deem it no longer necessary or
prudent in order to conform to any such law, the Indenture Trustee shall
execute and deliver an indenture supplemental hereto and all other instruments
and agreements necessary or proper to remove any additional trustee or
separate trustee.
(e) Any request, approval or consent in writing by the Indenture
Trustee to any additional trustee or separate trustee shall be sufficient
warrant to such additional trustee or separate trustee, as the case may be, to
take such action as may be so requested, approved or consented to.
(f) Notwithstanding any other provision of this Section 12.06, the
powers of any additional trustee or separate trustee shall not exceed those of
the Indenture Trustee hereunder.
ARTICLE XIII
SUPPLEMENTS AND AMENDMENTS TO THIS
TRUST INDENTURE AND OTHER DOCUMENTS
Section 13.01. Supplemental Indentures Without Consent of Holders.
The Owner Trustee (when authorized by the Owner Participant) and the Indenture
Trustee, without consent of the Holders, may enter into an indenture or
indentures supplemental hereto for one or more of the following purposes:
(a) to convey, transfer, assign, mortgage or pledge any property or
assets to the Indenture Trustee as security for the Certificates;
(b) to evidence the succession of another corporation to the Owner
Trustee or successive successions, and the assumption by the successor
corporation of the covenants, agreements and obligations of the Owner
Trustee herein and in the Certificates;
(c) to add to the covenants of the Owner Trustee such further
covenants, restrictions, conditions or provisions as it and the Indenture
Trustee shall consider to be for the protection of the Holders, and to make
the occurrence, or the occurrence and continuance, of a default in any such
additional covenants, restrictions, conditions or provisions an Indenture
Event of Default permitting the enforcement of all or any of the several
remedies provided herein; provided, that in respect of any such additional
covenant, restriction, condition or provision such supplemental indenture
may provide for a particular period of grace after default (which period
may be shorter or longer than that allowed in the case of other defaults)
or may provide for an immediate enforcement upon such an Indenture Event of
Default or may limit the remedies available to the Indenture Trustee upon
such an Indenture Event of Default or may limit the right of not less than
the Majority in Interest of Certificate Holders to waive such an Indenture
Event of Default;
(d) to surrender any right or power conferred herein upon the Owner
Trustee or the Owner Participant;
(e) to cure any ambiguity or to correct or supplement any provision
contained herein or in any supplemental indenture which may be defective or
inconsistent with any other provision contained herein or in any
supplemental indenture; or to make such other provisions in regard to
matters or questions arising under this Indenture or under any supplemental
indenture as the Owner Trustee may deem necessary or desirable and which
shall not adversely affect the interests of the Holders;
(f) to correct or amplify the description of any property at any
time subject to the Lien of this Indenture or better to assure, convey and
confirm unto the Indenture Trustee any property subject or required to be
subject to the Lien of this Indenture or to subject Replacement Airframe or
Replacement Engines to the Lien of this Indenture in accordance with the
provisions hereof or with the Lease or to release from the Lien of this
Indenture property that has been substituted on or removed from the
Aircraft as contemplated in Section 3.07 hereof; provided that supplements
to this Indenture entered into for the purpose of subjecting Replacement
Airframe or Replacement Engines to the Lien of this Indenture need only be
executed by the Owner Trustee and the Indenture Trustee;
(g) to provide for the issuance under this Indenture of Certificates
in coupon form (including Certificates registrable as to principal only)
and to provide for exchangeability of such Certificates with Certificates
issued hereunder in fully registered form, and to make all appropriate
changes for such purpose;
(h) to effect the re-registration of the Aircraft pursuant to
Section 6.03(b) of the Participation Agreement;
(i) to add, eliminate or change any provision hereunder so long as
such action shall not adversely affect the interests of the Holders; and
(j) to effect the amendments contemplated by Section 2.03 of the
Participation Agreement, subject to the limitations set forth therein.
The Indenture Trustee is hereby authorized to join in the execution
of any such supplemental indenture, to make any further appropriate agreements
and stipulations which may be contained therein and to accept the conveyance,
transfer, assignment, mortgage or pledge of any property thereunder, but the
Indenture Trustee shall not be obligated to enter into any such supplemental
indenture which adversely affects the Indenture Trustee's own rights, duties
or immunities under this Indenture or otherwise.
Any such supplemental indenture may be executed without the consent of
the Holders of Outstanding Certificates, notwithstanding any of the provisions
of Section 13.02 hereof.
Section 13.02. Supplemental Indentures With Consent of Holders.
With the consent (evidenced as provided in Article X) of the Majority in
Interest of Certificate Holders, the Owner Trustee (when authorized by the
Owner Participant) and the Indenture Trustee may, from time to time and at any
time, enter into an indenture or indentures supplemental hereto for the
purpose of adding any provisions to or changing in any manner or eliminating
any of the provisions of this Indenture or of any supplemental indenture or of
modifying in any manner the rights of the Holders; provided, however, that,
without the consent of each and every Holder and each Liquidity Provider, no
such amendment of or supplement to this Indenture or any indenture
supplemental hereto, or modification of the terms of, or consent under, any
thereof, shall (a) modify any of the provisions of Section 7.11 hereof or this
Section 13.02, (b) reduce the amount or extend the time of payment of any
amount owing or payable under any Certificate or reduce the interest payable
on any Certificate (except that only the consent of the Holder shall be
required for any decrease in any amounts of or the rate of interest payable on
such Certificate or any extension for the time of payment of any amount
payable under such Certificate), or alter or modify the provisions of Article
V hereof with respect to the order of priorities in which distributions
thereunder shall be made as among Holders of different Series of Certificates
or as between the Holder and the Owner Trustee or the Owner Participant or
with respect to the amount or time of payment of any such distribution, or
alter or modify the circumstances under which a Make-Whole Premium shall be
payable, or alter the currency in which any amount payable under any
Certificate is to be paid, or impair the right of any Holder to commence legal
proceedings to enforce a right to receive payment hereunder, (c) reduce,
modify or amend any indemnities in favor of any Holder or in favor of or to be
paid by the Owner Participant (except as consented to by each Person adversely
affected thereby), or (d) create or permit the creation of any Lien on the
Trust Indenture Estate or any part thereof prior to or pari passu with the
Lien of this Indenture, except as expressly permitted herein, or deprive any
Holder of the benefit of the Lien of this Indenture on the Trust Indenture
Estate, except as provided in Section 7.02 hereof or in connection with the
exercise of remedies under Article VII. This Section 13.02 shall not apply to
any indenture or indentures supplemental hereto permitted by, and complying
with the terms of, Section 13.06 hereof.
Upon the request of the Owner Trustee (at the direction of the Owner
Participant) and upon the filing with the Indenture Trustee of evidence of the
consent of Holders and other documents, if any, required by Section 10.01, the
Indenture Trustee shall join with the Owner Trustee and the Lessee in the
execution of such supplemental indenture unless such supplemental indenture
affects the Indenture Trustee's own rights, duties or immunities under this
Indenture or otherwise, in which case the Indenture Trustee may in its
discretion, but shall not be obligated to, enter into such supplemental
indenture.
It shall not be necessary for the consent of the Holders under this
Section to approve the particular form of any proposed supplemental indenture,
but it shall be sufficient if such consent shall approve the substance
thereof.
Promptly after the execution by the Owner Trustee, the Indenture
Trustee and the Lessee of any supplemental indenture pursuant to the
provisions of this Section, the Indenture Trustee shall mail a notice thereof
by first-class mail to the Holders at their addresses as they shall appear on
the registry books of the Registrar, setting forth in general terms the
substance of such supplemental indenture. Any failure of the Indenture
Trustee to mail such notice, or any defect therein, shall not, however, in any
way impair or affect the validity of any such supplemental indenture.
Section 13.03. Effect of Supplemental Indenture. Upon the execution
of any supplemental indenture pursuant to the provisions hereof, this
Indenture shall be and be deemed to be modified and amended in accordance
therewith and the respective rights, limitations of rights, obligations,
duties and immunities under this Indenture of the Indenture Trustee, the Owner
Trustee, the Lessee and the Holders shall thereafter be determined, exercised
and enforced hereunder subject in all respects to such modifications and
amendments, and all the terms and conditions of any such supplemental
indenture shall be and be deemed to be part of the terms and conditions of
this Indenture for any and all purposes.
Section 13.04. Documents to Be Given to Indenture Trustee. The
Indenture Trustee, subject to the provisions of Sections 9.02 and 9.03, may
receive an Officer's Certificate and an Opinion of Counsel as conclusive
evidence that any such supplemental indenture complies with the applicable
provisions of this Indenture.
Section 13.05. Notation on Certificates in Respect of Supplemental
Indentures. Certificates authenticated and delivered after the execution of
any supplemental indenture pursuant to the provisions of this Article may bear
a notation in form approved by the Indenture Trustee as to any matter provided
for by such supplemental indenture. If the Owner Trustee or the Indenture
Trustee shall so determine, new Certificates so modified as to conform, in the
opinion of the Owner Trustee and the Indenture Trustee, to any modification of
this Indenture contained in any such supplemental indenture may be prepared by
the Owner Trustee, authenticated by the Indenture Trustee and delivered in
exchange for the Outstanding Certificates.
Section 13.06. No Request Necessary for Lease Supplement or Indenture
and Security Agreement Supplement. Notwithstanding anything contained in
Section 13.02 hereof, no written request or consent of the Indenture Trustee,
any Holder or the Owner Participant pursuant to Section 13.02 hereof shall be
required to enable the Owner Trustee to enter into any supplement to the Lease
with the Lessee in accordance with the terms and conditions of the Lease to
subject a Replacement Airframe or Replacement Engine thereto or to execute and
deliver an Indenture and Security Agreement Supplement pursuant to the terms
hereof.
Section 13.07. Notices to Liquidity Providers. Any request made to
any Holder for consent to any amendment, supplement or waiver pursuant to
Section 7.11, 8.01 or this Article XIII shall be promptly furnished by the
Indenture Trustee to each Liquidity Provider.
ARTICLE XIV
SATISFACTION AND DISCHARGE OF INDENTURE;
UNCLAIMED MONEYS
Section 14.01. Satisfaction and Discharge of Indenture; Termination
of Indenture. If at any time after (a) the Owner Trustee shall have paid or
caused to be paid the principal of and interest on all the Certificates
outstanding hereunder, as and when the same shall have become due and payable,
or (b) the Owner Trustee shall have delivered to the Indenture Trustee for
cancellation all Certificates theretofore authenticated (other than any
Certificates which shall have been destroyed, lost or stolen and which shall
have been replaced or paid as provided in Section 2.07 hereof) or (c) (i) all
such Certificates not theretofore delivered to the Indenture Trustee for
cancellation shall have become due and payable, or are by their terms to
become due and payable within one year or are to be called for prepayment
within one year under arrangements satisfactory to the Indenture Trustee for
the giving of notice of prepayment by the Indenture Trustee in the name and at
the expense of the Owner Trustee, and (ii) the Owner Trustee shall have
irrevocably deposited or caused to be deposited with the Indenture Trustee as
trust funds the entire amount in cash (other than moneys repaid by the
Indenture Trustee or any paying agent to the Owner Trustee in accordance with
Section 14.04 hereof) or Government obligations maturing as to principal and
interest in such amounts and at such times as will insure the availability of
cash sufficient to pay at maturity all such Certificates not theretofore
delivered to the Indenture Trustee for cancellation, including principal and
interest due or to become due to such date of maturity as the case may be, and
if, in any such case, the Owner Trustee shall also pay or cause to be paid all
other sums then payable hereunder by the Owner Trustee, then this Indenture
shall cease to be of further effect (except in the case of (c) above as to (A)
rights of registration of transfer and exchange, and the Owner Trustee's right
of optional prepayment pursuant to Section 6.02(a)(ii) hereof, (B)
substitution of mutilated, defaced, destroyed, lost or stolen Certificates,
(C) rights of Holders to receive payments of principal thereof and interest
thereon, upon the original stated due dates therefor (but not upon
acceleration), (D) the rights, obligations, indemnities and immunities of the
Indenture Trustee hereunder and (E) the rights of the Holders as beneficiaries
hereof with respect to the property so deposited with the Indenture Trustee
payable to all or any of them), and the Indenture Trustee, on demand of the
Owner Trustee accompanied by an Officer's Certificate and an Opinion of
Counsel (covering such matters reasonably requested by, and in form and
substance reasonably satisfactory to, the Indenture Trustee) and at the cost
and expense of the Owner Trustee, shall execute proper instruments
acknowledging such satisfaction of and discharging this Indenture. The Owner
Trustee agrees to reimburse and indemnify the Indenture Trustee for any costs
or expenses thereafter reasonably and properly incurred and to compensate the
Indenture Trustee for any services thereafter reasonably and properly rendered
by the Indenture Trustee in connection with this Indenture or the
Certificates.
Upon (or at any time after) payment in full to the Indenture Trustee,
as trust funds, of the principal of and interest on and Make-Whole Premium, if
any, and all other amounts due hereunder and under all Certificates and
provided that there shall then be no other amounts due to the Indenture
Trustee hereunder or under the Participation Agreement or otherwise secured
hereby, the Owner Trustee shall direct the Indenture Trustee to execute and
deliver to or as directed in writing by the Owner Trustee an appropriate
instrument releasing the Aircraft from the Lien of this Indenture and
releasing the Indenture Documents from the assignment thereof hereunder, and
the Indenture Trustee shall execute and deliver such instrument as aforesaid
and, at the Owner Trustee's expense, will execute and deliver such other
instruments or documents as may be reasonably requested by the Owner Trustee
to give effect to such release; provided, however, that this Indenture and the
trusts created hereby shall terminate earlier and this Indenture shall be of
no further force or effect upon any sale or other final disposition by the
Indenture Trustee of all property forming a part of the Trust Indenture Estate
and the final distribution by the Indenture Trustee of all moneys or other
property or proceeds constituting part of the Trust Indenture Estate in
accordance with the terms hereof. Except as aforesaid otherwise provided, this
Indenture and the trusts created hereby shall continue in full force and
effect in accordance with the terms hereof.
Section 14.02. Application by Indenture Trustee of Funds Deposited
for Payment of Certificates. Subject to Section 14.04 hereof, all moneys
deposited with the Indenture Trustee pursuant to Section 14.01 hereof shall be
held in trust and applied by it to the prompt payment, either directly or
through any Paying Agent, to the Holders of the particular Certificates for
the payment or prepayment of which such moneys have been deposited with the
Indenture Trustee, of all sums due and to become due thereon for principal,
interest and Make-Whole Premium, if any, but such money need not be segregated
from other funds except to the extent required by law.
Section 14.03. Repayment of Moneys Held by Paying Agent. Upon the
satisfaction and discharge of this Indenture all moneys then held by any
Paying Agent under the provisions of this Indenture shall, upon demand of the
Owner Trustee, be repaid to it or paid to the Indenture Trustee and thereupon
such Paying Agent shall be released from all further liability with respect to
such moneys.
Section 14.04. Transfer of Moneys Held by Indenture Trustee and
Paying Agent Unclaimed for Two Years and Eleven Months. Any moneys deposited
with or paid to the Indenture Trustee or any Paying Agent for the payment of
the principal of or interest or Make-Whole Premium on any Certificate and not
applied but remaining unclaimed for two years and eleven months after the date
upon which such principal, interest or Make-Whole Premium shall have become
due and payable, shall, unless otherwise required by mandatory provisions of
applicable escheat or abandoned or unclaimed property law, be paid to the
Owner Trustee (or, if the Trust Agreement shall no longer be in effect, to the
Owner Participant) by the Indenture Trustee or such Paying Agent and the
Holder of such Certificate, as a general unsecured creditor, shall, unless
otherwise required by mandatory provisions of applicable escheat or abandoned
or unclaimed property laws, thereafter look only to the Owner Trustee (or the
Owner Participant) for any payment which such Holder may be entitled to
collect, and all liability of the Indenture Trustee, or any Paying Agent with
respect to such moneys shall thereupon cease.
ARTICLE XV
MISCELLANEOUS
Section 15.01. Capacity in Which Acting. Each of SSB (or its
permitted successors or assigns) and the Indenture Trustee acts hereunder not
in its individual capacity but solely as trustee except as expressly provided
herein and in the other Operative Documents, and, in the case of SSB (or its
permitted successors or assigns), in the Trust Agreement.
Section 15.02. No Legal Title to Trust Indenture Estate in Holders.
No Holder shall have legal title to any part of the Trust Indenture Estate.
No transfer, by operation of law or otherwise, of any Certificate or other
right, title and interest of any Holder in and to the Trust Indenture Estate
or hereunder shall operate to terminate this Indenture or entitle such Holder
or any successor or transferee of such Holder to an accounting or to the
transfer to it of legal title to any part of the Trust Indenture Estate.
Section 15.03. Sale of Trust Indenture Estate by Indenture Trustee is
Binding. Any sale or other conveyance of all or any part of the Trust
Indenture Estate by the Indenture Trustee made pursuant to the terms of this
Indenture or of the Lease shall bind the Lessee, the Owner Trustee, the
Holders and the Owner Participant and shall be effective to transfer or convey
all right, title and interest of the Indenture Trustee, the Owner Trustee, the
Owner Participant and such Holders therein and thereto. No purchaser or other
grantee shall be required to inquire as to the authorization, necessity,
expediency or regularity of such sale or conveyance or as to the application
of any sale or other proceeds with respect thereto by the Indenture Trustee.
Section 15.04. Indenture for Benefit of Owner Trustee, Indenture
Trustee, Owner Participant, Holders and Liquidity Providers. Nothing in this
Indenture, whether express or implied, shall be construed to give to any
person other than SSB, the Owner Trustee, the Lessee, the Indenture Trustee,
as trustee and in its individual capacity, the Owner Participant, each
Liquidity Provider and the Holders any legal or equitable right, remedy or
claim under or in respect of this Indenture. Upon termination of this
Indenture pursuant to Article XIV hereof, the Indenture Trustee in connection
with the satisfaction of the Indenture shall return to the Owner Trustee all
property (and related documents and instruments) constituting or evidencing
the Trust Indenture Estate.
Section 15.05. No Action Contrary to the Lessee's Rights Under the
Lease. Notwithstanding any of the provisions of this Indenture or the Trust
Agreement to the contrary, so long as no Event of Default shall have occurred
and be continuing, neither the Indenture Trustee nor the Owner Trustee will
take any affirmative acts that interfere with the peaceful and quiet
possession and enjoyment of the Aircraft by the Lessee.
Section 15.06. Notices. Unless otherwise expressly specified or
permitted by the terms hereof, all notices, requests, demands, authorizations,
directions, consents, waivers or documents provided or permitted by this
Indenture to be made, given, furnished or filed shall be in writing, mailed by
certified mail, postage prepaid, or by confirmed telecopy, and (a) if to the
Owner Trustee, addressed to it c/o State Street Bank and Trust Company, Two
International Place, 4th Floor, Boston, Massachusetts 02110 (telephone: (617)
664-5526, facsimile: (617) 664-5371), Attention: Corporate Trust Department
(with a copy to the Owner Participant at the address provided for notice
pursuant to Section 14.01 of the Participation Agreement), (b) if personally
delivered to the Indenture Trustee, addressed to it at its office at 79 South
Main Street, Salt Lake City, Utah 84111 (telephone: (801) 246-5630, facsimile:
(801) 246-5053), Attention: Corporate Trust Department or (c) if to the Owner
Participant, a Liquidity Provider or the Lessee, addressed to such party at
such address as such party shall have furnished by notice to the Owner Trustee
and the Indenture Trustee, or, until an address is so furnished, addressed to
the address of such party if any, set forth in Section 14.01 of the
Participation Agreement. Any party hereto may change the address to which
notices to such party will be sent by giving notice of such change to the
other parties to this Indenture.
Where this Indenture provides for notice to Holders, such notice
shall be sufficiently given (unless otherwise expressly provided herein) if in
writing and mailed, first-class postage prepaid, to each Holder entitled
thereto, at such Holder's last address as it appears in the Register. In any
case where notice to Holders is given by mail, neither the failure to mail
such notice, nor any defect in any notice so mailed, to any particular Holder
shall affect the sufficiency of such notice with respect to other Holders.
Where this Indenture provides for notice in any manner, such notice may be
waived in writing by the person entitled to receive such notice, either before
or after the event, and such waiver shall be the equivalent of such notice.
Waivers of notice by Holders shall be filed with the Indenture Trustee, but
such filing shall not be a condition precedent to the validity of any action
taken in reliance upon such waiver.
In case, by reason of the suspension of or irregularities in regular
mail service, it shall be impracticable to mail notice to the Owner Trustee
and Holders when such notice is required to be given pursuant to any provision
of this Indenture, then any manner of giving such notice as shall be
satisfactory to the Indenture Trustee shall be deemed to be a sufficient
giving of such notice.
Section 15.07. Officer's Certificates and Opinions of Counsel;
Statements to Be Contained Therein. Upon any application or demand by the
Lessee or the Owner Trustee to the Indenture Trustee to take any action under
any of the provisions of this Indenture, the Lessee or the Owner Trustee, as
the case may be, shall furnish to the Indenture Trustee upon request (a) an
Officer's Certificate stating that all conditions precedent provided for in
this Indenture relating to the proposed action have been complied with and
that the proposed action is in conformity with the requirements of this
Indenture, and (b) 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 demand as to which the furnishing
of such documents is specifically required by any provision of this Indenture
relating to such particular application or demand, no additional certificate
or opinion need be furnished.
Any certificate, statement or opinion of an officer of SSB may be
based, insofar as it relates to legal matters, upon a certificate or opinion
of or representations by counsel, unless such officer knows that the
certificate or opinion or representations with respect to the matters upon
which his certificate, statement or opinion may be based as aforesaid are
erroneous, or in the exercise of reasonable care should know that the same are
erroneous. Any certificate, statement or opinion of counsel may be based,
insofar as it relates to factual matters information with respect to which is
in the possession of the Lessee or SSB, upon the certificate, statement or
opinion of or representations by an officer or officers of the Lessee or SSB,
as the case may be, unless such counsel knows that the certificate, statement
or opinion or representations with respect to the matters upon which his
certificate, statement or opinion may be based as aforesaid are erroneous, or
in the exercise of reasonable care should know that the same are erroneous.
Any certificate, statement or opinion of an officer of the Lessee or
SSB or of counsel thereto may be based, insofar as it relates to accounting
matters, upon a certificate or opinion of or representations by an accountant
or firm of accountants employed by the Lessee or the Owner Trustee, as the
case may be, unless such officer or counsel, as the case may be, knows that
the certificate or opinion or representations with respect to the accounting
matters upon which his certificate, statement or opinion may be based as
aforesaid are erroneous, or in the exercise of reasonable care should know
that the same are erroneous.
Any certificate or opinion of any independent firm of public
accountants filed with the Indenture Trustee shall contain a statement that
such firm is independent.
Section 15.08. Severability. Any provision of this Indenture which
is prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and any
such prohibition or unenforceability in any jurisdiction shall not invalidate
or render unenforceable such provision in any other jurisdiction.
Section 15.09. No Oral Modifications or Continuing Waivers. No
terms or provisions of this Indenture or the Certificates may be changed,
waived, discharged or terminated orally, but only by an instrument in writing
signed by the party or other person against whom enforcement of the change,
waiver, discharge or termination is sought; and any waiver of the terms hereof
or of any Certificate shall be effective only in the specific instance and for
the specific purpose given.
Section 15.10. Successors and Assigns. All covenants and agreements
contained herein shall be binding upon, and inure to the benefit of, each of
the parties hereto and the successors and permitted assigns of each, all as
herein provided. Any request, notice, direction, consent, waiver or other
instrument or action by any Holder shall bind the successors and assigns of
such Holder. This Indenture and the Trust Indenture Estate shall not be
affected by any amendment or supplement to the Trust Agreement or by any other
action taken under or in respect of the Trust Agreement, except that each
reference in this Indenture to the Trust Agreement shall mean the Trust
Agreement as amended and supplemented from time to time to the extent
permitted hereby and thereby.
Section 15.11. Headings. The headings of the various Articles and
Sections herein and in the table of contents hereto are for the convenience of
reference only and shall not define or limit any of the terms or provisions
hereof.
Section 15.12. Normal Commercial Relations. Anything contained in
this Indenture to the contrary notwithstanding, the Owner Participant, the
Indenture Trustee and any Holder, or any bank or other affiliate of any such
party, may conduct any banking or other financial transactions, and have
banking or other commercial relationships, with the Lessee fully to the same
extent as if this Indenture were not in effect, including without limitation
the making of loans or other extensions of credit to the Lessee for any
purpose whatsoever, whether related to any of the transactions contemplated
hereby or otherwise.
Section 15.13. Governing Law; Counterparts. THIS INDENTURE AND
EACH CERTIFICATE SHALL IN ALL RESPECTS BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK, INCLUDING ALL MATTERS OF
CONSTRUCTION, VALIDITY AND PERFORMANCE. This Indenture may be executed by the
parties hereto in separate counterparts, each of which when so executed and
delivered shall be an original, but all such counterparts shall together
constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed this 28th day of May, 1997 by their respective officers
thereunto duly authorized and acknowledge that this Indenture has been made
and delivered in the City of New York, and this Indenture shall be effective
only upon such execution and delivery.
STATE STREET BANK AND TRUST COMPANY
OF CONNECTICUT, NATIONAL ASSOCIATION,
not in its individual capacity,
except as specifically set forth herein
but solely as Owner Trustee
By
--------------------------------------
Name: Paul D. Allen
Title: Vice President
FIRST SECURITY BANK,
NATIONAL ASSOCIATION,
not in its individual capacity,
but solely as Indenture Trustee
By
--------------------------------------
Name: Greg A. Hawley
Title: Vice President
Exhibit A
to
Trust Indenture and Security Agreement
Indenture and Security Agreement Supplement
Indenture and Security Agreement Supplement (Federal Express
Corporation Trust No. N583FE) dated ________, ____, of STATE STREET BANK AND
TRUST COMPANY OF CONNECTICUT, NATIONAL ASSOCIATION, a national banking
association, not in its individual capacity but solely as owner trustee
(herein called the "Owner Trustee") under the Trust Agreement dated as of May
1, 1997 (the "Trust Agreement") between State Street Bank and Trust Company of
Connecticut, National Association and the Owner Participant named therein.
W I T N E S S E T H :
-------------------
WHEREAS, the Trust Agreement provides for the execution and delivery
of this Indenture and Security Agreement Supplement which shall particularly
describe the Aircraft and any Replacement Airframe or Replacement Engine
included in the property covered by the Trust Agreement.
WHEREAS, the Trust Indenture and Security Agreement (Federal Express
Corporation Trust No. N583FE) dated as of May 1, 1997 (the "Indenture") between
the Owner Trustee and First Security Bank, National Association (herein called
the "Indenture Trustee") provides for the execution and delivery of an
Indenture and Security Agreement Supplement substantially in the form of this
Indenture and Security Agreement Supplement No. __, which Supplement shall
particularly describe the Aircraft included in the Trust Indenture Estate, and
shall specifically mortgage such Aircraft to the Indenture Trustee.
(1)WHEREAS, the Indenture relates to the Aircraft and the Engines
described in the following paragraph and a counterpart of the Indenture is
attached to and made a part of this Indenture and Security Agreement
Supplement No. 1, and this Indenture and Security Agreement Supplement No. 1,
together with such attachment, is being filed for recordation on or promptly
after the date of this Supplement No. 1 with the Federal Aviation
Administration as one document.
- ------------
(1) This recital is to be included only in the first Indenture Supplement.
(2)Whereas, the Indenture and Indenture and Security Agreement
Supplement No. ___ dated _________________, ______ (the Indenture being
attached to and made a part of such Indenture and Security Agreement
Supplement and filed therewith) have been duly recorded pursuant to Subtitle
VII of Title 49 of the United States Code, on ____________, _____, as one
document and have been assigned Conveyance No. _________.
- ------------
(2) This recital is not to be included in the first Indenture Supplement.
NOW, THEREFORE, this Supplement witnesseth, that, to secure the prompt
payment of the principal of and Make-Whole Premium, if any, and interest on,
and all other amounts due with respect to, all Outstanding Certificates under
the Indenture and all other amounts due hereunder and the performance and
observance by the Owner Trustee of all the agreements, covenants and
provisions for the benefit of the Holders contained in the Indenture, in the
Lease, in the Participation Agreement and the Certificates, and the prompt
payment of any and all amounts from time to time owing under the Participation
Agreement by the Owner Trustee, the Owner Participant or the Lessee to the
Holders and for the uses and purposes and subject to the terms and provisions
of the Indenture and the Certificates, and in consideration of the premises
and of the covenants contained in the Indenture, and of the purchase of the
Certificates by the Holders, and of the sum of $1 paid to the Owner Trustee by
the Indenture Trustee at or before the delivery of the Indenture, the receipt
of which is hereby acknowledged, the Owner Trustee has granted, bargained,
sold, assigned, transferred, conveyed, mortgaged, pledged, granted a security
interest in, and confirmed, and does hereby grant, bargain, sell, assign,
transfer, convey, mortgage, pledge, grant a security interest in, and confirm,
unto the Indenture Trustee, its successors and assigns, in trust for the equal
and ratable security and benefit of the Holders, in the trust created by the
Indenture, and subject to all of the terms, conditions, provisions and
limitations set forth in the Indenture, a first priority security interest in
and mortgage lien on all estate, right, title and interest of the Owner Trustee
in, to and under the following described property:
Airframe
One (1) Airframe identified as follows:
FAA Manufacturer's
Registration Serial
Manufacturer Model Number Number
- ------------ ----- ------------ --------------
together with all appliances, equipment, instruments and accessories
(including, without limitation, radio and radar) from time to time belonging
thereto, owned by the Owner Trustee and installed in or appurtenant to said
aircraft.
AIRCRAFT ENGINES
Two (2) aircraft engines, each such engine having 750 or more rated takeoff
horsepower or the equivalent thereof, identified as follows:
Manufacturer's
Serial
Manufacturer Model Number
- ----------- ---- --------------
together with all equipment and accessories belonging thereto, by whomsoever
manufactured, owned by the Owner Trustee and installed in or appurtenant to
said aircraft engines.
Together with all substitutions, replacements and renewals of the
property described above, and all property which shall hereafter become
physically attached to or incorporated in the property described above,
whether the same are now owned by the Owner Trustee or shall hereafter be
acquired by it.
As further security for the obligations referred to above and secured
by the Indenture and hereby, the Owner Trustee has granted, bargained, sold,
assigned, transferred, conveyed, mortgaged, pledged and confirmed, and does
hereby grant, bargain, sell, assign, transfer, convey, mortgage, pledge and
confirm, unto the Indenture Trustee, its successors and assigns, for the
security and benefit of the Holders, in the trust created by the Indenture,
and subject to all of the terms, conditions, provisions and limitations set
forth in the Indenture, all of the estate, right, title and interest of the
Owner Trustee in, to and under the Lease Supplement (other than Excepted
Payments, if any) covering the property described above.
TO HAVE AND TO HOLD all and singular the aforesaid property unto the
Indenture Trustee, its successors and assigns, for the benefit and security of
the Holders for the uses and purposes and subject to the terms and provisions
set forth in the Indenture.
This Supplement shall be construed as supplemental to the Indenture
and shall form a part thereof, and the Indenture is hereby incorporated by
reference herein and is hereby ratified, approved and confirmed.
This Supplement is being delivered in the State of New York.
AND, FURTHER, the Owner Trustee hereby acknowledges that the
Aircraft/Engines referred to in this Supplement and the aforesaid Lease
Supplement has been delivered to the Owner Trustee and is included in the
property of the Owner Trustee and covered by all the terms and conditions of
the Trust Agreement, subject to the Lien of the Indenture.
IN WITNESS WHEREOF, the Owner Trustee has caused this Supplement to
be duly executed as of the date first written above by one of its officers
thereunto duly authorized.
STATE STREET BANK AND TRUST COMPANY
OF CONNECTICUT, NATIONAL ASSOCIATION,
not in its individual capacity,
except as specifically set forth herein
but solely as Owner Trustee
By
--------------------------------------
Name: Paul D. Allen
Title: Vice President
Exhibit B
to
Trust Indenture and Security Agreement
[Form of Certificate]
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY
NOT BE SOLD OR OFFERED FOR SALE IN CONTRAVENTION OF SAID ACT
No. ______ $_____________
EQUIPMENT TRUST CERTIFICATE
(Federal Express Corporation Trust No. N583FE)
STATE STREET BANK AND TRUST COMPANY OF CONNECTICUT,
NATIONAL ASSOCIATION
not in its individual capacity but solely as
OWNER TRUSTEE UNDER TRUST AGREEMENT
(Federal Express Corporation Trust No. N583FE)
dated as of May 1, 1997
Interest Rate Maturity
SERIES ___
State Street Bank and Trust Company of Connecticut, National
Association, a national banking association, not in its individual capacity
but solely as Owner Trustee (herein in such capacity called the "Owner
Trustee") under that certain Trust Agreement (Federal Express Corporation
Trust No. N583FE) dated as of May 1, 1997, between the Initial Owner
Participant named therein and State Street Bank and Trust Company of
Connecticut, National Association (herein as such Trust Agreement may be
amended or supplemented from time to time called the "Trust Agreement"), hereby
promises to pay to FIRST SECURITY BANK, NATIONAL ASSOCIATION, as Subordination
Agent, or its registered assigns, the principal sum of ________________
_______________ Dollars, payable as set forth below for the Maturity
specified above, in such coin or currency of the United States of America as
at the time of payment shall be legal tender for the payment of public and
private debts, and to pay interest on the principal outstanding from time to
time, semiannually on each January 15 and July 15, on said principal sum in
like coin or currency at the rate per annum set forth above from the January
15 or the July 15, as the case may be, next preceding the date of this
Certificate to which interest on the Certificates has been paid or duly
provided for, unless the date hereof is a date to which interest on the
Certificates has been paid or duly provided for, in which case from the date
of this Certificate. Notwithstanding the foregoing, if the date hereof is
after any January 15 or July 15 and before the following January 15 or July
15, as the case may be, this Certificate shall bear interest from such January
15 or July 15; provided that, if the Owner Trustee shall default in the
payment of interest due on such January 15 or July 15, then this Certificate
shall bear interest from the next preceding January 15 or July 15 to which
interest on this Certificate has been paid or duly provided for. The interest
so payable on any January 15 or July 15 will, except as otherwise provided in
the Indenture referred to below, be paid to the person in whose name this
Certificate is registered at the close of business on the January 15 or July
15 preceding such January 15 or July 15, whether or not such day is a Business
Day.
This Certificate shall bear interest at the Past Due Rate on any
principal hereof and on any other amount payable hereunder or under the
Indenture which shall not be paid in full when due (whether at stated
maturity, by acceleration, by mandatory prepayment or otherwise), for the
period from and including the date thereof to but excluding the date the same
is paid in full, payable from time to time on demand of the Indenture Trustee.
Principal and interest and other amounts due hereunder shall be
payable at the office or agency of First Security Bank, National Association
(the "Indenture Trustee") maintained for such purpose in immediately available
funds prior to 10:30 A.M. (New York time) on the due date thereof and the
Indenture Trustee shall remit all such amounts received by it to the Holders
at such account or accounts at such financial institution or institutions as
the Holders shall have designated to the Indenture Trustee in writing, in
immediately available funds, such payment to be made if the payment was
received prior to 10:30 A.M. New York time by the Indenture Trustee on any
Business Day, by 12:00 noon New York time on such Business Day; otherwise, the
Indenture Trustee shall make payment promptly, but not later than 11:00 A.M.
New York time on the next succeeding Business Day; provided that, at the
option of the Indenture Trustee or its Paying Agent, interest may be paid by
mailing a check therefor payable to or upon the written order of the
registered holder entitled thereto at his last address as it appears on the
Register. If any amount payable under this Certificate, or under the
Indenture, falls due on a day that is not a Business Day, then such sum shall
be payable on the next succeeding Business Day, without (provided that payment
is made on such next succeeding Business Day) additional interest thereon for
the period of such extension.
State Street Bank and Trust Company of Connecticut, National
Association and First Security Bank, National Association are not acting
individually hereunder, but solely as Owner Trustee and Indenture Trustee,
respectively.
Any Person, other than the Subordination Agent, who is acquiring the
Certificates will be deemed to represent and warrant that (i) no assets of an
employee benefit plan subject to Title I of ERISA or an individual retirement
account or plan subject to Section 4975 of the Code, or any trust established
under any such plan or account, have been used to acquire or hold any of the
Certificates, or (ii) that one or more administrative or statutory exemptions
from the prohibited transaction rules under Section 406 of ERISA and Section
4975 of the Code applies to its purchase and holding of the Certificates such
that its purchase and holding of the Certificates will not result in a
non-exempt prohibited transaction under Section 406 of ERISA and Section 4975
of the Code.
This Certificate is one of a duly authorized issue of Certificates
issued and to be issued under the Trust Indenture and Security Agreement
(Federal Express Corporation Trust No. N583FE) dated as of May 1, 1997 (herein
as amended, supplemented or modified from time to time called the "Indenture")
between the Owner Trustee and the Indenture Trustee, designated as Equipment
Trust Certificates (Federal Express Corporation Trust No. N583FE) limited in
aggregate initial principal amount to $61,019,000 consisting of the following
aggregate principal amounts of Certificates with the interest rates per annum
and Maturities shown:
Initial
Aggregate
Principal
Series Maturity Amount Interest Rate
- ------ -------- --------- -------------
A January 15, 2016 $34,220,000 7.50%
B January 15, 2016 $12,811,000 7.52%
C January 15, 2009 $13,988,000 7.65%
Reference is made to the Indenture and all supplements and amendments
thereto (a copy of which is on file with the Indenture Trustee at its
principal corporate trust office) for a more complete statement of the terms
and provisions thereof, including a statement of the properties conveyed,
pledged and assigned thereby, the nature and extent of the security, the
respective rights of the Owner Trustee, the Owner Participant, the Lessee, the
Indenture Trustee and the Holders, and the terms upon which the Certificates
are, and are to be, executed and delivered, to all of which terms and
conditions in the Indenture each Holder hereof agrees by its acceptance of
this Certificate.
Capitalized terms not otherwise defined herein shall have the
meanings given to them in the Indenture.
The principal amounts of the Certificates are payable as set forth in
Schedule I attached hereto. The Certificates are subject to redemption in
part, pro rata (based on the face amount thereof), in each case through
mandatory sinking fund redemptions providing for the redemption on the Sinking
Fund Redemption Dates of the aggregate principal amounts set forth on Schedule
I attached hereto, together with interest accrued thereon to the applicable
Sinking Fund Redemption Date, but without Make-Whole Premium.
Except as expressly provided in the Indenture, all payments of
principal, Make-Whole Premium, if any, and interest and other amounts to be
made to the Holder hereof by or at the behest of the Owner Trustee hereunder
or under the Indenture shall be made only from the income and proceeds from
the Lessor's Estate to the extent included in the Trust Indenture Estate and
only to the extent that the Owner Trustee shall have sufficient income or
proceeds from the Lessor's Estate to the extent included in the Trust
Indenture Estate to enable the Indenture Trustee to make such distributions in
accordance with the terms of the Indenture; provided that under the Lease, the
Lessee is obligated to pay or cause to be paid, to the extent such payments
are not required to be made from the assets subject to the Lien of this
Indenture or the income and proceeds received by the Indenture Trustee
therefrom, any net loss arising from the investment of funds held by the
Indenture Trustee which but for an Event of Default would be payable to
Lessee, and each Holder hereof, by its acceptance of this Certificate, agrees
that it will (except as aforesaid) look solely to the income and proceeds from
the Trust Indenture Estate to the extent available for distribution to the
Holder hereof as provided above and that none of the Owner Trustee, State
Street Bank and Trust Company of Connecticut, National Association nor the
Indenture Trustee is personally liable to the Holder hereof for any amounts
payable or any liability under this Certificate or under the Indenture, except
as expressly provided in the Indenture, in the case of State Street Bank and
Trust Company of Connecticut, National Association, the Owner Trustee and the
Indenture Trustee.
The Certificates are subject to prepayment in the following
circumstances at the price determined as set forth below.
(i) If an Event of Loss occurs with respect to the Airframe or with
respect to the Airframe and the Engines or engines then installed on the
Airframe (unless pursuant to Section 11.03 of the Lease and Section 9.08 of
the Indenture replacement equipment is substituted therefor).
(ii) If the Lessee, pursuant to Section 4.02(a) of the Lease, gives
notice of purchase of the Aircraft.
(iii) If any Owner Participant or the Owner Trustee on behalf of any
Owner Participant gives notice of prepayment to the Indenture Trustee
pursuant to Section 8.02 of the Indenture.
(iv) If the Lessee, pursuant to Section 10.01 of the Lease, gives
notice of a voluntary termination for obsolescence or surplus, but subject
to Section 6.02(c) of Indenture.
(v) At the option of the Owner Trustee with the prior written
consent of the Lessee upon not less than 25 days' prior written notice.
(vi) As contemplated by Section 2.16 of the Indenture and Section
3.03(b) of the Participation Agreement if the Delivery Date has not
occurred on or prior to the Cut-Off Date.
(vii) With respect to the Series C Certificates only, as provided in
Section 2.03(b) of the Participation Agreement.
(viii) Pursuant to Section 15.01 of the Participation Agreement in
connection with a Refinancing of the Certificates.
In the case of a prepayment of the Certificates pursuant to clauses
(ii), (iv) and (viii) above, the Lessee, in accordance with and subject to the
terms (including timing of notice) of Section 4.02(a) or 10.01 of the Lease or
Article 15 of the Participation Agreement, as the case may be, shall give
irrevocable (subject to Section 6.02(c) of the Indenture) written notice to
the Owner Trustee and the Indenture Trustee and to the Holders of all of the
Certificates specifying the Business Day on which the Owner Trustee is
directed to prepay the Certificates. In the case of a prepayment pursuant to
clause (i) above, the Certificates shall be prepaid on the Loss Payment Date
(as defined in Section 11.02 of the Lease). In the case of a prepayment
pursuant to clause (iii) above, the Certificates shall be prepaid on the date
designated in the notice of prepayment required by Section 8.02 of the
Indenture. In the case of a prepayment of the Certificates pursuant to clauses
(ii) and (iv) above, the Certificates shall be prepaid in full on the
Termination Date. In the case of a prepayment of the Certificates pursuant to
clause (v) above, the Certificates shall be prepaid on the 25th date following
the notice referred to therein. In the case of a prepayment of the
Certificates pursuant to clause (vi) above, the Certificates shall be prepaid
on the 15th day following the Cut-Off Date. In the case of a prepayment of
the Series C Certificates pursuant to clause (vii) above, the amount of such
Series C Certificates to be prepaid shall be prepaid on the Reoptimization
Date. In the case of a prepayment pursuant to Section 6.02(a)(viii) above,
the Certificates shall be prepaid on the effective date of the Refinancing.
The day on which the Certificates are to be prepaid is herein referred to as
the "Prepayment Date". On or prior to the Prepayment Date, immediately
available funds shall be deposited with the Indenture Trustee in an amount in
respect of the Certificates equal to:
(1) (i) if such prepayment is made under any provision of Section
6.02 of the Indenture on or after the applicable Premium Termination Date,
or (ii) if such prepayment is made prior to the applicable Premium
Termination Date pursuant to clause (i) or (iii) above (if clause (i) of
the first sentence of Section 8.02(a) of the Indenture is applicable),
clause (vi) or (vii) above, the sum of (A) the aggregate principal amount
of such Certificates then Outstanding, (B) accrued interest on the
Certificates to the Prepayment Date and (C) all other aggregate sums due the
Indenture Trustee under the Indenture or under the Participation Agreement
or the Lease, but excluding any Make-Whole Premium or other premium or
penalty, or
(2) if such prepayment is made prior to the applicable Premium
Termination Date pursuant to clause (ii), (iii) (if clause (ii) of the
first sentence of Section 8.02(a) of the Indenture is applicable), (iv),
(v) or (viii) above, the sum of the amounts specified in clauses (A), (B)
and (C) of the preceding clause (1) plus any Make-Whole Premium payable in
respect of all Certificates with respect to which the Premium Termination
Date therefor has not occurred
(the aggregate amount required to be paid pursuant to this sentence being
herein referred to as the "Prepayment Price").
If an Indenture Event of Default under the Indenture shall occur and
be continuing, the principal of the Certificates may be declared due and
payable in the manner and with the effect provided in the Indenture. The
Indenture provides that in certain events such declaration and its
consequences may be waived the Majority in Interest of Holders. Any such
consent or waiver shall be conclusive and binding upon the Holder of this
Certificate and upon all future Holders and owners of this Certificate and any
Certificate that may be issued in exchange or substitution therefor, whether or
not any notation thereof is made upon this Certificate or such other
Certificates. Moreover, if, and only if, an Event of Default shall occur, the
Indenture Trustee may declare the Lease to be in default, and may, to the
exclusion of the Owner Trustee, exercise one or more of the remedies of the
Owner Trustee provided in the Lease.
The Owner Trustee or any Owner Participant may cure a default by the
Lessee under the Lease arising from the failure of the Lessee to make any
Basic Rent payments under the Lease, but the Owner Trustee and the Owner
Participant, collectively, may not cure more than three consecutive such
failures or more than six such failures in total. The Owner Trustee or any
Owner Participant may cure any other default by the Lessee in the performance
of its obligations under the Lease.
(A) If an Event of Default shall have occurred and be continuing for
more than 180 days or the Certificates shall have been accelerated or (B) an
Event of Default shall have occurred and be continuing for not more than 180
days and the Certificates shall not have been accelerated, the Owner
Participant (or the Owner Trustee on behalf of the Owner Participant) may:
(1) direct the Owner Trustee to cause the prepayment of all the
Outstanding Certificates by notifying the Indenture Trustee of such
election and depositing the sum of amounts contemplated by paragraph
"first" under Section 5.03 of the Indenture and the aggregate
Prepayment Price of all such Certificates with the Indenture Trustee
for distribution to the Holders; or
(2) purchase all of the Outstanding Certificates by paying to the
Indenture Trustee an amount equal to the aggregate unpaid principal
amount of all Outstanding Certificates, plus accrued interest on such
amount to the date of purchase and any Make-Whole Premium applicable
to each Outstanding Certificate, if such purchase occurs prior to the
Premium Termination Date for such Outstanding Certificate (in the
case of a purchase pursuant to clause (ii) of the first sentence of
Section 8.02(a) of the Indenture) plus all other sums due any Holder
or the Indenture Trustee under the Indenture, the Participation
Agreement or the Lease.
The right of the Holder hereof to institute an action for any remedy
under the Indenture is subject to certain restrictions specified in the
Indenture, except that the right of the Holder of this Certificate to receive
payment of the principal of and interest and Make-Whole Premium, if any, on
this Certificate on or after the respective due dates, or to institute suit
for the enforcement of any such payment, shall not be impaired or affected
without the consent of such Holder.
The Certificates are issuable only as registered Certificates without
coupons in denominations of $1,000 and integral multiples thereof. So long as
any of the Certificates remain Outstanding, the Indenture Trustee will
maintain an office or agency where the Certificates may be presented for
payment and a facility or agency in New York, New York where the Certificates
may be presented for registration of transfer and for exchange as provided in
the Indenture. As provided in the Indenture and subject to certain
limitations therein, this Certificate is transferable, and upon surrender of
this Certificate for registration of transfer at the principal corporate trust
office of the Indenture Trustee, or at the office or agency maintained for such
purposes, duly endorsed by, or accompanied by a written instrument of transfer
in form satisfactory to the Owner Trustee and the Indenture Trustee duly
executed by, the Holder or his attorney duly authorized in writing, one or
more new Certificates of the same Series and Maturity and interest rate and of
authorized denominations and for the same aggregate principal amount will be
issued to the designated transferee or transferees.
As provided in the Indenture and subject to certain limitations
therein, the Certificates are exchangeable for an equal aggregate principal
amount of Certificates of the same Series and Maturity and interest rate and
of authorized denominations, as requested by the Holder surrendering the same,
upon presentation thereof for such purpose at the principal corporate trust
office of the Indenture Trustee, or at an office or agency maintained for such
purpose.
No service charge shall be levied for any such registration of
transfer or exchange, but the Indenture Trustee may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection
therewith.
Prior to the due presentment for registration of transfer of this
Certificate, the Owner Trustee, the Indenture Trustee, any agent of the Owner
Trustee or the Indenture Trustee, the Paying Agent, if any, the Registrar and
the Lessee shall deem and treat the person in whose name this Certificate is
registered as the absolute owner hereof for all purposes whether or not this
Certificate is overdue, and neither the Owner Trustee, the Indenture Trustee
(nor any agent of the Owner Trustee or the Indenture Trustee), nor the Paying
Agent, if any, the Registrar nor the Lessee shall be affected by notice to the
contrary.
The indebtedness evidenced by this Certificate is, to the extent and
in the manner provided in the Indenture, subordinate and subject in right of
payment to the prior payment in full of the Secured Obligations (as defined in
the Indenture) in respect of [Series A Certificate](1), [Series A and Series B
Certificates](2) and this Certificate is issued subject to such provisions.
The Holder of this Certificate, by accepting the same, (a) agrees to and shall
be bound by such provisions, (b) authorizes and directs the Indenture Trustee
on such Holder's behalf to take such action as may be necessary or appropriate
to effectuate the subordination as provided in the Indenture and (c) appoints
the Indenture Trustee such Holder's attorney-in-fact for such purpose.(*)
- ------------
(1) To be inserted in the case of a Series B Certificate.
(2) To be inserted in the case of a Series C Certificate.
(*) To be inserted for each Certificate other than any Series A
Certificate.
The Owner Trustee shall have the right, on the Reoptimization Date to
modify Schedule I attached hereto subject to the terms and conditions set
forth in Section 2.03(b) of the Participation Agreement. To give effect to
the foregoing the Indenture Trustee shall execute an amendment to the
Indenture which shall amend Section 6.06 thereof to set forth the new schedule
of principal payments and Schedule I attached hereto shall be amended
accordingly. The Indenture Trustee shall deliver such amendments to the
Subordination Agent on behalf of the Pass Through Trustee for each of the Pass
Through Trusts. To the extent that such amendment of the Indenture occurs
later than the Delivery Date, the Indenture, as amended, shall, if required,
be duly filed for recordation with the Aeronautics Authority.
As provided in the Indenture, the Indenture and the Certificates
shall be construed in accordance with and governed by the laws of the State of
New York.
This Certificate shall not be secured by or be entitled to any
benefit under the Indenture or be valid or obligatory for any purpose unless
authenticated by the Indenture Trustee as evidenced by the manual signature of
one of its authorized officers on the certificate below.
IN WITNESS WHEREOF, the Owner Trustee has caused this Equipment Trust
Certificate (Federal Express Corporation Trust No. N583FE) to be duly executed
in its corporate name by its officer thereunto duly authorized.
Dated: May ___, 1997 STATE STREET BANK AND TRUST COMPANY OF
CONNECTICUT, NATIONAL ASSOCIATION,
not in its individual capacity,
but solely as Owner Trustee
By
--------------------------------------
Name: Paul D. Allen
Title: Vice President
[FORM OF INDENTURE TRUSTEE'S CERTIFICATE OF AUTHENTICATION]
This is one of the Equipment Trust Certificates (Federal Express
Corporation Trust No. N583FE) referred to in the within mentioned Indenture.
Dated: May ___, 1997 FIRST SECURITY BANK, NATIONAL ASSOCIATION,
not in its individual capacity,
but solely as Indenture Trustee
By
--------------------------------------
Name: Greg A. Hawley
Title: Vice President
Schedule I
to
Certificate
Principal Amount
Series A Series B Series C
Certificates with Certificates with Certificates with
Sinking Fund a Maturity of a Maturity of a Maturity of
Redemption Date January 15, 2016 January 15, 2016 January 15, 2009
- ---------------- ----------------- ----------------- -----------------
January 15, 1998 0 0 404,461
July 15, 1998 0 0 0
January 15, 1999 58,080 280 1,238,436
July 15, 1999 0 0 0
January 15, 2000 711,706 266,890 364,600
July 15, 2000 0 0 0
January 15, 2001 711,706 266,890 470,480
July 15, 2001 0 0 0
January 15, 2002 711,706 266,890 579,879
July 15, 2002 0 0 0
January 15, 2003 710,468 266,890 699,282
July 15, 2003 1,238 0 0
January 15, 2004 0 0 1,802,545
July 15, 2004 711,706 266,890 0
January 15, 2005 0 0 917,977
July 15, 2005 711,710 266,890 0
January 15, 2006 0 0 3,200,096
July 15, 2006 711,707 266,890 0
January 15, 2007 711,706 266,890 687,252
July 15, 2007 0 0 0
January 15, 2008 711,707 266,890 1,985,262
July 15, 2008 0 0 0
January 15, 2009 711,707 841,573 1,637,730
July 15, 2009 0 0 0
January 15, 2010 711,706 3,815,854 0
July 15, 2010 0 0 0
January 15, 2011 711,706 4,169,481 0
July 15, 2011 0 0 0
January 15, 2012 3,979,330 1,282,776 0
July 15, 2012 0 0 0
January 15, 2013 5,672,274 0 0
July 15, 2013 0 0 0
January 15, 2014 6,114,269 0 0
July 15, 2014 0 0 0
January 15, 2015 6,590,706 0 0
July 15, 2015 0 0 0
January 15, 2016 3,264,862 299,026 0
SCHEDULE I
[Reserved]
SCHEDULE II
DEFINITIONS
(FEDERAL EXPRESS CORPORATION TRUST NO. N583FE)
GENERAL PROVISIONS
The following terms shall have the following meanings for all
purposes of the Operative Agreements (other than the Pass Through Agreement,
the Series Supplements, the Intercreditor Agreement and the Liquidity
Facilities) referred to below, unless otherwise defined in an Operative
Agreement or the context thereof shall otherwise require. In the case of any
conflict between the provisions of this Schedule and the provisions of any
Operative Agreement, the provisions of such Operative Agreement shall control
the construction of such Operative Agreement.
Unless the context otherwise requires, (i) references to agreements
shall be deemed to mean and include such agreements as amended and
supplemented from time to time, and (ii) references to parties to agreements
shall be deemed to include the successors and permitted assigns of such
parties.
DEFINED TERMS:
Additional Insured. As defined in Article 13 of the Lease.
Aeronautics Authority. As appropriate, the Federal Aviation
Administration and/or the Administrator of the Federal Aviation
Administration, any successor to the former United States Civil Aeronautics
Board, or any Person, governmental department, bureau, commission or agency
located in the United States succeeding to the functions of any of the
foregoing.
Affidavits. The affidavits of citizenship of the Owner Trustee and
the Owner Participant.
Affiliate. With respect to any Person, any other Person directly or
indirectly controlling, controlled by or under common control with such
Person. For the purposes of this definition, "control" (including "controlled
by" and "under common control with") shall mean the power, directly or
indirectly, to direct or cause the direction of the management and policies of
such Person whether through the ownership of voting securities or by contract
or otherwise. In no event shall the Owner Trustee or the Lessor be deemed an
Affiliate of the Owner Participant.
After-Tax Basis. A basis such that any payment received or deemed to
have been received by a Person shall be supplemented by a further payment to
such Person so that the sum of the two payments, after deduction of all Taxes
resulting from the receipt or accrual of such payments, shall be equal to the
payment received or deemed to have been received. In the case of amounts
payable to the Lessor, the Owner Participant, or any corporate Affiliate of
the Owner Participant, it shall be presumed that such Person is at all times
subject to Federal income tax at the maximum marginal rate generally
applicable to corporations from time to time and actual state, local and
foreign income taxes.
Air Carrier. Any U.S. Air Carrier and any "foreign air carrier" (as
defined in the Transportation Code) as to which there is in force a permit
granted under Section 41302 of the Transportation Code.
Aircraft. The Airframe to be sold by the Lessee to the Owner Trustee
as provided in the Participation Agreement and to be leased under the Lease
(or any permitted substitute airframe thereunder) together with three Engines
(whether each an initial Engine or a Replacement Engine) whether or not any of
such initial or Replacement Engines may from time to time be installed on such
Airframe or may be installed on any other airframe or on any other aircraft,
including any aircraft substituted pursuant to Section 11.03 of the Lease.
Prior to delivery of the initial Lease Supplement, references in the Operative
Agreements (including Section 3.03 of the Participation Agreement) to Aircraft
shall mean the McDonnell Douglas MD-11F airframe bearing FAA Registration
Number N1752K (currently anticipated to be changed to N583FE) and
Manufacturer's serial number 48421, together with three General Electric
CF6-80C2-D1F engines.
Airframe. The McDonnell Douglas MD-11F aircraft (excluding the
Engines or engines from time to time installed thereon) to be leased by the
Lessor to the Lessee pursuant to the Lease and the initial Lease Supplement
and having the United States FAA Registration Number initially and
manufacturer's serial number specified in the initial Lease Supplement,
including (i) all Parts in respect thereof and (ii) any Replacement Airframe
which may be substituted pursuant to Section 11.03 of the Lease.
Ancillary Agreement. Any written agreement of the Lessee to which the
Lessor is a party or to which the Lessor has consented in writing entered into
on or prior to the Delivery Date or any date thereafter in connection with the
transactions contemplated by the Operative Agreements, as such agreement may
be amended and supplemented from time to time with the consent of the Lessor
and delivered to the Owner Trustee, the Indenture Trustee, the Pass Through
Trustee, the Subordination Agent, each Liquidity Provider and the Owner
Participant.
Ancillary Agreement I. The Ancillary Agreement I (Federal Express
Corporation Trust No. N583FE), dated the Delivery Date, among the Lessee, the
Owner Trustee, not in its individual capacity, but solely as Owner Trustee,
the Owner Participant and the Indenture Trustee not in its individual
capacity, but solely as Indenture Trustee, as originally executed or as
amended, modified or supplemented with the consent of all the parties thereto.
Application. The application for registration of the Aircraft with
the FAA in the name of the Owner Trustee.
Appraisal. The report prepared by BK Associates, Inc. and to be
delivered to the Owner Participant (with a copy of the conclusions to the
Lessee) on the Delivery Date pursuant to Section 4.02(h) of the Participation
Agreement.
Average Life Date. For any Certificate, the date which follows the
prepayment date by a period equal to the Remaining Weighted Average Life of
such Certificate.
Bankruptcy Code. The Federal Bankruptcy Code of 1978, as amended, and
any successor thereto.
Bankruptcy Default. An event specified in Section 16.01(e), (f) or
(g) of the Lease which either does or, with the giving of notice or lapse of
time or both, would constitute an Event of Default.
Basic Rent. The aggregate periodic rent payable for the Aircraft
throughout the Basic Term pursuant to Section 3.02 of the Lease, adjusted
pursuant to Article 3 of the Lease.
Basic Term. The period commencing at the beginning of the day on the
Delivery Date and ending at the end of the day on March 15, 2019, or such
earlier date on which the Lease shall be terminated as provided therein.
Beneficial Interest. The interest of the Owner Participant (or the
Initial Owner Participant, as the case may be) under the Trust Agreement.
Bills of Sale. Collectively, the FAA Bill of Sale and the Warranty
Bill of Sale.
Business Day. Any day on which commercial banks are not authorized or
required to close in New York, New York, Memphis, Tennessee and the city in the
United States in which the office or agency is maintained by the Pass Through
Trustee for the payment of the Pass Through Certificates, and after the Lien
of the Indenture is discharged, Boston, Massachusetts.
Certificate Closing Date. The date of the closing with respect to the
purchase of Certificates by the Pass Through Trustee contemplated by Section
2.01(b) of the Participation Agreement.
Certificates. The Equipment Trust Certificates (Federal Express
Corporation Trust No. N583FE), issued by the Owner Trustee pursuant to the
Indenture and any certificate issued in exchange therefor or replacement
thereof pursuant to the Indenture.
Citizen of the United States. A citizen of the United States as
defined in Section 40102(a)(15) of the Transportation Code, or any analogous
part of any successor or substituted legislation or regulation at the time in
effect.
Class A Liquidity Provider. Has the meaning specified in Section
1.01 of the Intercreditor Agreement.
Class B Liquidity Provider. Has the meaning specified in Section
1.01 of the Intercreditor Agreement.
Closings. The closing with respect to the acquisition of the Pass
Through Certificates by the Underwriters and the closing with respect to the
acquisition of Certificates by the Pass Through Trustee.
Code. Except as otherwise provided, the Internal Revenue Code of
1986, as amended from time to time.
Collateral Account. The deposit account established and maintained
pursuant to Section 2.13 of the Indenture.
Collateral Account Control Agreement. The Collateral Account Control
Agreement dated as of May 1, 1997 among State Street Bank and Trust Company,
the Indenture Trustee and the Owner Trustee.
Commitment. The amount of the Owner Participant's participation in
the Purchase Price required to be made available or paid as provided in
Section 3.02 of the Participation Agreement.
Corporate Trust Administration. The Corporate Trust Administration
office of the Owner Trustee located at 750 Main Street, Hartford, Connecticut
06103, Attention: Corporation Trust Administration, or such other office at
which the Owner Trustee's corporate trust business shall be administered which
the Owner Trustee shall have specified by notice in writing to the Lessee, the
Owner Participant and the Indenture Trustee.
Corporate Trust Department. The Corporate Trust Department office of
the Indenture Trustee located at 79 South Main Street, Salt Lake City, Utah
84111, Attention: Corporate Trust Department, or such other office at which
the Indenture Trustee's corporate trust business shall be administered which
the Indenture Trustee shall have specified by notice in writing to the Lessee,
the Owner Participant and the Owner Trustee.
CRAF Program. Has the meaning specified in Section 7.01(f) of the
Lease.
Cut-Off Date. December 15, 1997.
Debt Portion. The amount specified as such on Schedule IV to the
Participation Agreement.
Debt Rate. The weighted average (based on Outstanding principal
amount) rate of interest on the Certificates issued pursuant to the Indenture.
Default. Any event or condition which, with the lapse of time or the
giving of notice, or both, would constitute an Event of Default.
Delivery Date. The date on which the Aircraft is delivered and sold
by the Lessee to the Lessor and leased by the Lessor to the Lessee under the
Lease, which date shall also be the date of the initial Lease Supplement.
Delivery Notice. Notice of the Aircraft's Delivery Date, given by
the Lessee as provided in Section 3.01 of the Participation Agreement and
including any notice with respect to a postponed Delivery Date given by the
Lessee pursuant to Section 3.03(c) of the Participation Agreement.
EBO Date. Has the meaning specified in Section 4.02(a)(F) of the
Lease.
EBO Price. Has the meaning specified in Section 4.02(a)(F) of the
Lease.
Eligible Deposit Account. Either (a) a segregated account with an
Eligible Institution or (b) a segregated trust account with the corporate
trust department of a depository institution with corporate trust powers
organized under the laws of the United States or any state thereof, or the
District of Columbia, and whose deposits are insured by the Federal Deposit
Insurance Corporation, provided that such institution also has a combined
capital and surplus of at least $100,000,000 and a rating of A or better from
the Thomson Bank Watch.
Eligible Institution. A depository institution organized under the
laws of the United States or any one of the states thereof, or the District of
Columbia, or any domestic branch of a foreign bank, which in any such case at
all times (a) has either (x) a long-term unsecured debt rating of at least Aa2
by Moody's or (y) a short-term certificate of deposit rating of P-1 by
Moody's, (b) has either (x) a long-term unsecured debt rating of a least AA by
S&P or (y) a short-term certificate of deposit rating of A-1+ by S&P and (c)
is a member of the Federal Deposit Insurance Corporation.
Engine. Each of the three General Electric CF6-80C2-D1F engines
listed by its manufacturer's serial number in the initial Lease Supplement and
leased pursuant to the Lease, whether or not from time to time installed on
the Airframe or installed on any other airframe or on any other aircraft, and
any Replacement Engine which may from time to time be substituted for an
Engine pursuant to Section 7.02(a)(vii), 10.03, 11.03, 11.04 or 12.02 of the
Lease, together with all Parts related thereto. Except as otherwise provided,
at such time as a Replacement Engine shall be so substituted and the Engine
for which the substitution is made shall be released from the Lien of the
Indenture, such replaced Engine shall cease to be an "Engine" under the Lease.
The term "Engines" means, as of any date of determination, all Engines then
leased to the Lessee pursuant to the Lease.
Engine Consent. The Engine Consent dated as of May 1, 1997, executed
by the Engine Manufacturer.
Engine Manufacturer. General Electric Company, a New York
corporation.
Engine Warranty Assignment. The Engine Warranty Assignment (Federal
Express Corporation Trust No. N583FE), dated as of May 1, 1997 between the
Lessor and the Lessee.
ERISA. The Employee Retirement Income Security Act of 1974, as
amended.
ERISA Plan. An employee benefit plan subject to Title I of ERISA, or
an individual retirement account or plan subject to Section 4975 of the Code.
Estimated Expense Amount. Has the meaning specified in Section
10.01(a) of the Participation Agreement.
Event of Default. Each of the events specified in Article 16 of the
Lease.
Event of Loss. Any of the following events with respect to the
Aircraft, the Airframe or any Engine: (i) loss of such property or its use (A)
due to theft or disappearance for a period in excess of 30 days (or such
longer period not to exceed 60 days from the end of such 30 day period if and
so long as the location of such property is known and the Lessee is pursuing
the recovery thereof) or to the end of the Term, if less, unless such event
constitutes an Event of Loss under clause (i)(B) or clause (ii) below, or (B)
due to the destruction, damage beyond economic repair or rendition of such
property permanently unfit for normal use by Lessee for any reason whatsoever;
(ii) any damage to such property which results in an insurance settlement with
respect to such property on the basis of a total loss, or constructive or
compromised total loss; (iii) (1) condemnation, confiscation or seizure of, or
requisition of title to such property by the Government, any foreign
government or purported government or any agency or instrumentality thereof,
or (2) condemnation, confiscation, or seizure of, or requisition or taking of,
use of such property (A) by a foreign government, or instrumentality or agency
of any such foreign government, or any purported government or instrumentality
or agency thereof for a period in excess of 180 days or the end of the Term,
if less, or (B) by the Government for a period extending beyond the Term
provided that no Event of Loss shall be deemed to have occurred, and the Term
shall be extended automatically for a period of up to six months beyond the
end of the Term in the event that the Aircraft or the Airframe or any Engine
is requisitioned by the Government pursuant to an activation as part of the
CRAF Program described in Section 7.02(a)(iv) of the Lease; or (iv) as a
result of any law, rule, regulation, order or other action by the Aeronautics
Authority or other governmental body having jurisdiction, the use of the
Aircraft or Airframe in the normal course of air transportation of cargo shall
have been prohibited for a period of four (4) consecutive months, unless the
Lessee, prior to the expiration of such four (4) month period, shall be
diligently carrying forward all steps which are necessary and desirable to
permit the normal use of the Aircraft or Airframe provided, however, that an
Event of Loss shall be deemed to have occurred if (x) the Lessee fails to
continue diligently carrying forward all such steps or (y) the use of the
Aircraft or the Airframe in the normal course of air transportation of cargo
shall have been prohibited for a period of an additional 8 months following
such 4 month period or (z) unless waived by the Lessor, the Term shall have
expired. The date of such Event of Loss shall be (t) the 30th day or the 90th
day, as the case may be, following loss of such property or its use due to
theft or disappearance; (u) the date of any destruction, damage beyond
economic repair or rendition of such property permanently unfit for normal
use; (v) the date of any insurance settlement on the basis of a total loss or
constructive or compromised total loss; (w) the date of any condemnation,
confiscation, seizure or requisition of title of such property; (x) the
earlier of the 181st day following condemnation, confiscation, seizure or
requisition for use of such property by a foreign government or
instrumentality or agency thereof or the end of the Term; (y) the last day of
the Term in the case of requisition for use of such property by the Government
or (z) the last day of the 4 month or additional 8 month period, referred to
in clause (iv) above or, if earlier, the last day of the Term (unless waived
by the Lessor). An Event of Loss with respect to the Aircraft shall be deemed
to have occurred if any Event of Loss occurs with respect to the Airframe.
Excepted Payments. Collectively, (i) indemnity or other payments of
expenses paid or payable by the Lessee in respect of the Owner Participant,
the Owner Trustee in its individual capacity or any of their respective
successors, permitted assigns, directors, officers, employees, servants and
agents or Affiliates, pursuant to Article 8, 9, or 10 or any indemnity
hereafter granted to the Owner Participant or the Owner Trustee in its
individual capacity pursuant to Section 7.01(e), Article 9 or Section 11.03(a)
of the Lease, (ii) proceeds of public liability insurance (or government
indemnities in lieu thereof) in respect of the Aircraft payable as a result of
insurance claims paid for the benefit of, or losses suffered by, the Owner
Trustee or the Indenture Trustee in their respective individual capacities or
by the Owner Participant, or their respective successors, permitted assigns or
Affiliates, (iii) proceeds of insurance maintained with respect to the
Aircraft by the Owner Participant (whether directly or through the Owner
Trustee) maintained in accordance with the provisions of but not required
under Article 13 of the Lease, (iv) all right, title and interest of the Owner
Participant in, to and under the Tax Indemnity Agreement and payments of
Supplemental Rent by the Lessee in respect of any amounts payable under the Tax
Indemnity Agreement, (v) any amounts payable by the Lessee to the Owner
Participant or the Owner Trustee in its individual capacity, after the release
thereof from the Lien of the Indenture, (vi) subject to Section 3.05 of the
Lease, payments constituting increases in Basic Rent attributable to payments
arising pursuant to Section 5 of the Tax Indemnity Agreement, (vii) any right
to demand, collect or otherwise receive and enforce the payment of any amount
described in clauses (i) through (vi) above and (viii) any payments in respect
of interest to the extent attributable to the payments referred to in clauses
(i) through (vi) above.
Expense; Expenses. Have the meaning specified in Section 9.01(a) of
the Participation Agreement.
FAA Bill of Sale. The bill of sale for the Airframe on AC Form
8050-2, or such other form as may be approved by the Aeronautics Authority,
executed by the Lessee in favor of the Owner Trustee and to be dated the
Delivery Date.
Fair Market Renewal Term. A term with respect to which the Lessee has
exercised its option to renew the Lease pursuant to the second paragraph of
Section 4.01(a) thereof and with respect to which the conditions set forth in
such Section 4.01(a) are met.
Fair Market Rental. An amount determined on the basis of, and equal
in amount to, the rental which would be obtained in an arm's-length
transaction between an informed and willing lessee and an informed and willing
lessor unaffiliated with such lessee, neither being under any compulsion to
lease. In such determination, except for purposes of Section 17.01 of the
Lease, it shall be assumed that the Aircraft is in at least the condition
required under the Lease in the case of return of the Aircraft pursuant to
Article 12 of the Lease and Fair Market Rental shall be determined in
accordance with the provisions of Section 4.03 of the Lease. For purposes of
Section 17.01 of the Lease, such determination shall be made on an "as is,
where is" basis by a qualified independent appraiser selected by the Lessor
and the costs and expenses of the appraisal shall be borne by the Lessee,
unless the Lessor has not obtained possession of the Aircraft pursuant to such
Section 17.01, in which case an appraiser shall not be appointed and such Fair
Market Rental shall be deemed to be zero.
Fair Market Value. An amount determined on the basis of, and equal
in amount to, the value which would be obtained in an arm's-length transaction
between an informed and willing purchaser under no compulsion to buy and an
informed and willing seller unaffiliated with such purchaser and under no
compulsion to sell, assuming the Aircraft (or other property) is unencumbered
by the Lease. In such determination, except for purposes of Section 17.01 of
the Lease, it shall be assumed that the Aircraft is in at least the condition
required under the Lease in the case of return of the Aircraft pursuant to
Article 12 of the Lease and Fair Market Value shall be determined in
accordance with the provisions of Section 4.03 of the Lease. For purposes of
Section 17.01 of the Lease, such determination shall be made on an "as is,
where is" basis by a qualified independent appraiser selected by the Lessor
and the costs and expenses of the appraisal shall be borne by the Lessee,
unless the Lessor has not obtained possession of the Aircraft free and clear
of all Liens and unencumbered by the Lease pursuant to such Section 17.01, in
which case an appraiser shall not be appointed and such Fair Market Value
shall be deemed to be zero.
Federal Aviation Administration; FAA. The United States Federal
Aviation Administration and any successor agency or agencies thereto.
Final Drawing. Has the meaning specified in Section 1.01 of the
Intercreditor Agreement.
Fixed Renewal Rent. Semi-annual payments of rent during the Fixed
Renewal Term equal to the lesser of (i) Fair Market Rental as determined as of
the commencement of such Fixed Renewal Term and (ii) the amount set forth in
Ancillary Agreement I.
Fixed Renewal Term. The term with respect to which the Lessee has
exercised its option to renew the Lease pursuant to the first paragraph of
Section 4.01(a) thereof and with respect to which the conditions set forth in
such Section 4.01(a) are met.
FSB. First Security Bank, National Association, a national banking
association.
Government. The United States of America or an agency or
instrumentality thereof the obligations of which bear the full faith and
credit of the United States of America.
GTA. The General Terms Agreement dated as of July 3, 1991 between the
Engine Manufacturer and the Lessee related to the purchase by the Lessee of the
Engines as originally executed or as modified, amended or supplemented in
accordance with the terms thereof, but only insofar as the General Terms
Agreement relates to the Engines, to the extent assigned to the Owner Trustee
pursuant to the Engine Warranty Assignment.
Holder of a Certificate; Certificate Holder; Holder. As of any
particular time, the Person in whose name a Certificate shall be registered
(but not including the holder of any Pass Through Certificate).
Indemnitee. Each of SSB, in its individual capacity and as Owner
Trustee and Lessor, the Subordination Agent, in its individual capacity and in
its capacity as Subordination Agent, each Liquidity Provider, the Owner
Participant, the Indenture Trustee, in its individual capacity and as trustee,
and any successor (including any trustee which may succeed to the Lessor's
interest under the Lease), Affiliate, assign, officer, director, employee,
agent and servant of any of the foregoing, the Lessor's Estate and the Trust
Indenture Estate. Neither the Pass Through Trustee nor any holder of a Pass
Through Certificate shall be deemed to be an Indemnitee.
Indenture. The Trust Indenture and Security Agreement (Federal
Express Corporation Trust No. N583FE), dated as of May 1, 1997, between the
Lessor and the Indenture Trustee, as supplemented by the Indenture and
Security Agreement Supplement.
Indenture and Security Agreement Supplement. The Indenture and
Security Agreement Supplement No. 1 (Federal Express Corporation Trust No.
N583FE) to be dated the Delivery Date, substantially in the form of Exhibit A
to the Indenture.
Indenture Default. Any event or condition which, with the lapse of
time or the giving of notice, or both, would constitute an Indenture Event of
Default.
Indenture Documents. Has the meaning specified in the Granting
Clause of the Indenture.
Indenture Event of Default. Each of the events specified in Section
7.01 of the Indenture.
Indenture Trustee. First Security Bank, National Association, a
national banking association, not in its individual capacity but solely as
Indenture Trustee under the Indenture.
Indenture Trustee's Liens. Any Lien against, on or with respect to
the Aircraft, the Lessor's Estate or the Trust Indenture Estate or any part
thereof resulting from (i) claims against the Indenture Trustee not related to
the administration of the Trust Indenture Estate or any transactions pursuant
to the Indenture or any document included in the Trust Indenture Estate, (ii)
any act or omission of the Indenture Trustee which is not related to the
transactions contemplated by the Operative Agreements or is in violation of
any of the terms of the Operative Agreements or (iii) Taxes imposed against
the Indenture Trustee in its individual capacity against which the Lessee has
not indemnified (and is not obligated to indemnify) the Indenture Trustee in
such capacity.
Independent Appraisal. An appraisal conducted pursuant to Section
4.03 of the Lease.
Independent Investment Banker. An independent investment banking
institution of national standing appointed by the Lessee that is independent
in fact, does not have any direct financial interests, or any material
indirect financial interest, in the Lessee or any Affiliate of the Lessee, and
is not connected with the Lessee or any Affiliate of the Lessee, as an
officer, employee, promoter, underwriter, trustee, partner, director or Person
performing similar functions; provided, that if the Indenture Trustee shall
not have received written notice of such an appointment at least 10 days prior
to the Prepayment Date, "Independent Investment Banker" shall mean such an
institution appointed by the Indenture Trustee.
Initial Owner Participant. Federal Express Corporation, a Delaware
corporation.
Intercreditor Agreement. The Intercreditor Agreement dated as of May
1, 1997, among the Pass Through Trustee, the Class A Liquidity Provider, the
Class B Liquidity Provider and the Subordination Agent.
Interest Drawing. Has the meaning specified in Section 1.01 of the
Intercreditor Agreement.
Invoice. The invoice for the Aircraft given by the Lessee to the
Lessor.
Lease. The Lease Agreement (Federal Express Corporation Trust No.
N583FE) dated as of May 1, 1997, entered into by the Lessor and the Lessee
concurrently with the execution and delivery of the Indenture, including,
without limitation, supplementation by one or more Lease Supplements entered
into pursuant to the applicable provisions of the Lease.
Lease Supplement. The Lease Supplement No. 1 (Federal Express
Corporation Trust No. N583FE) to be dated the Delivery Date, substantially in
the form of Exhibit A to the Lease.
Lease Term. The period commencing on the Delivery Date and ending at
the end of the Basic Term.
Lessee. Federal Express Corporation, a Delaware corporation.
Lessee Documents. Has the meaning set forth in Section 6.01(b) of the
Participation Agreement.
Lessor. State Street Bank and Trust Company of Connecticut, National
Association, a national banking association, not in its individual capacity
but solely as Owner Trustee under the Trust Agreement.
Lessor's Estate. All estate, right, title and interest of the Owner
Trustee in and to the Collateral Account, the Liquid Collateral, the Aircraft,
the Lease, any Lease Supplement, the Participation Agreement, the Bills of
Sale, the Modification Agreement, the GTA, the Engine Warranty Assignment, the
Engine Consent, any warranty with respect to the Airframe and the Engines, all
amounts of Basic Rent, Renewal Rent and Supplemental Rent, including without
limitation, insurance proceeds (other than insurance proceeds payable to or
for the benefit of either the Owner Trustee in its individual capacity or the
Owner Participant) and requisition, indemnity or other payments of any kind
for or with respect to the Aircraft (except amounts owing to the Owner
Participant or to the Owner Trustee in its individual capacity, or to any of
their respective directors, officers, employees and agents pursuant to
Articles 8 and 9 of the Participation Agreement). Notwithstanding the
foregoing, "Lessor's Estate" shall not include any Excepted Payment.
Lessor's Liens. Liens against, on or with respect to the Aircraft,
the Lessor's Estate or the Trust Indenture Estate or any part thereof, title
thereto or any interest therein arising as a result of (i) claims against the
Lessor, in its individual capacity or as Owner Trustee, the Owner Participant
or any Affiliate of such Owner Participant, in each case not related to the
transactions contemplated by the Operative Agreements, (ii) acts or omissions
of the Lessor in its individual capacity or as Owner Trustee, and, in the case
of the Lessor in its individual capacity, arising from its gross negligence or
willful misconduct either not related to the transactions contemplated by or
expressly prohibited under the Operative Agreements and any act or omission of
the Owner Participant or any Affiliate of such Owner Participant which is not
related to the transactions contemplated by the Operative Agreements or is in
violation of any of the terms of the Operative Agreements, (iii) Taxes or
Expenses imposed against the Lessor, in its individual capacity or as Owner
Trustee, or the Owner Participant or any Affiliate of such Owner Participant,
the Lessor's Estate or the trust created by the Trust Agreement which are not
required to be indemnified against by the Lessee pursuant to the Tax Indemnity
Agreement or by reason of Section 8.01(b) or 9.01(b) of the Participation
Agreement, or (iv) claims against the Lessor or the Owner Participant arising
from the voluntary transfer by the Lessor or the Owner Participant of its
interests in the Aircraft other than a transfer of the Aircraft resulting from
an action or at the direction of the Lessee pursuant to Section 4.02(a) or
Article 8, 9, 10 or 11 of the Lease and other than a transfer pursuant to the
exercise of the remedies set forth in Article 17 of the Lease.
Lien. Any mortgage, pledge, lien, charge, encumbrance, lease or
security interest or other similar interest.
Liquid Collateral. All amounts and securities deposited from time to
time in the Collateral Account and all the products, investments, earnings and
proceeds of the foregoing, including, but not limited to, all proceeds of the
investment or conversion thereof, voluntary or involuntary, into cash,
Specified Investments or other property, all rights to payment of any and
every kind, and other forms of obligations, and instruments and other property
which at any time constitute all or part or are included in the proceeds of
any of the foregoing.
Liquidity Facility. Has the meaning specified in Section 1.01 of the
Intercreditor Agreement.
Liquidity Provider. Has the meaning specified in Section 1.01 of the
Intercreditor Agreement.
Losses. Has the meaning specified in Section 17.02(a) of the
Participation Agreement.
Loss Payee. Has the meaning specified in Section 13.02(b)(i) of the
Lease.
Majority in Interest of Certificate Holders. As of a particular date
of determination, the Holders of more than 50% of the aggregate unpaid
principal amount of all Certificates outstanding as of such date excluding for
purposes of this definition any Certificates held by (i) the Owner Trustee or
the Owner Participant unless all Certificates then outstanding shall be held
by such Owner Participant, (ii) the Lessee or (iii) any Affiliate of any
thereof.
Make-Whole Premium. An amount determined as of the day before the
applicable Prepayment Date (or date of purchase, as the case may be) which an
Independent Investment Banker determines to be equal to the excess, if any, of
(i) the present value of the remaining scheduled payments of such principal
amount or portion thereof and interest thereon (excluding interest accrued
from the immediately preceding Payment Date to such Prepayment Date or date of
purchase, as the case may be) to the Maturity of such Certificate in
accordance with generally accepted financial practices assuming a 360-day year
consisting of twelve 30-day months at a discount rate equal to the Treasury
Yield, all as determined by the Independent Investment Banker over (ii) the
outstanding principal amount of such Certificate plus accrued interest.
Mandatory Document Terms. The terms set forth on Schedule V to the
Participation Agreement.
Mandatory Economic Terms. The terms set forth on Schedule VI to the
Participation Agreement.
Manufacturer. McDonnell Douglas Corporation, a Maryland corporation.
Maturity. With respect to any Certificate, the date on which the
final principal amount of such Certificate is scheduled to be due and payable.
Modification Agreement. The Aircraft Modification Agreement dated as
of December 1, 1995 between the Lessee and the Manufacturer providing for the
refurbishing and reconfiguration of the Aircraft including any warranties
relating thereto, but only to the extent that the foregoing relates to the
Aircraft, to the extent assigned to the Owner Trustee pursuant to the Warranty
Bill of Sale.
Moody's. Moody's Investors Service, Inc.
Net Present Value of Rents. The net present value, as of the
Delivery Date, of Basic Rent set forth in Schedule II of the Lease, discounted
at a rate per semi-annual period equal to the Debt Rate.
Non-U.S. Person. Any Person other than a U.S. Person.
Obsolete Parts. Parts which the Lessee in good faith determines to be
obsolete or no longer suitable or appropriate for use on the Airframe or any
Engine.
Officer's Certificate. When delivered pursuant to the Indenture, a
certificate signed by a Responsible Officer of the Lessee or the Owner
Trustee, as the case may be, and delivered to the Indenture Trustee. Each
such certificate shall include the statements provided for in Section 15.07 of
the Indenture.
Operative Agreements. The Participation Agreement, the Trust
Agreement, the Bills of Sale, the Modification Agreement, the GTA, the Engine
Warranty Assignment, the Lease, the Lease Supplement, the Owner Trustee
Guaranty, if any, any Ancillary Agreement entered into by or with the written
consent of the Indenture Trustee, which by its terms is an Operative
Agreement, the Certificates outstanding at the time of reference, the
Indenture, the Indenture and Security Agreement Supplement, the Engine
Consent, each Liquidity Facility, the Intercreditor Agreement, the Collateral
Account Control Agreement and the Tax Indemnity Agreement.
Opinion of Counsel. When delivered pursuant to the Indenture, a
written opinion of legal counsel, who in the case of counsel (a) for the
Lessee may be (i) an attorney employed by the Lessee who is generally
empowered to deliver such written opinions, (ii) Davis Polk & Wardwell or a
successor firm or (iii) other counsel designated by the Lessee and reasonably
satisfactory to the Indenture Trustee and (b) for the Owner Trustee or the
Indenture Trustee, an attorney selected by such Person and, in the case of the
Owner Trustee, reasonably satisfactory to the Indenture Trustee.
Outstanding. When used with respect to Certificates, as of the date
of determination and subject to the provisions of Section 10.04 of the
Indenture, all Certificates theretofore executed and delivered under the
Indenture, with the exception of the following:
(i) Certificates theretofore cancelled by the Indenture Trustee or
delivered to the Indenture Trustee for cancellation pursuant to
Section 2.08 of the Indenture or otherwise;
(ii) Certificates for which prepayment money in the necessary amount
has been theretofore deposited with the Indenture Trustee in trust
for the Holders of such Certificates pursuant to Section 14.01 of the
Indenture; provided, that if such Certificates are to be prepaid,
notice of such prepayment has been duly given pursuant to the
Indenture or provision therefor satisfactory to the Indenture Trustee
has been made; and
(iii) Certificates in exchange for or in lieu of which other
Certificates have been executed and delivered pursuant to Article II
of the Indenture.
Owner Participant. The Person to whom on the Delivery Date (or, if
earlier, the Transfer Date) the Initial Owner Participant shall transfer its
Beneficial Interest pursuant to Section 3.02 of the Participation Agreement
and any successors thereto, and any Person to which the Owner Participant
transfers, in accordance with the Trust Agreement, its right, title and
interest in and to the Operative Agreements and the Lessor's Estate.
Owner Trustee. SSB, not in its individual capacity except as
otherwise expressly stated, but solely as Owner Trustee under the Trust
Agreement.
Owner Trustee Guarantor. The provider, if any, of an Owner Trustee
Guaranty.
Owner Trustee Guaranty. Any guaranty delivered in compliance with
Section 11.01(b)(ii) of the Participation Agreement.
Owner's Economic Return. The Owner Participant's anticipated net
after-tax yield and aggregate after-tax cash flow during the Basic Term,
utilizing the multiple investment sinking fund method of analysis, computed on
the basis of the same methodology and assumptions as were utilized by the
Owner Participant in determining Basic Rent, Stipulated Loss Value and
Termination Value percentages and EBO Price, as such assumptions may be
adjusted for events which have been the basis of adjustments to Rent pursuant
to Section 3.04 of the Lease.
Participation Agreement. The Participation Agreement (Federal Express
Corporation Trust No. N583FE), dated as of May 1, 1997, among the Lessee, the
Owner Trustee not in its individual capacity except as otherwise expressly
provided therein, but solely as owner trustee, the Owner Participant, the
Indenture Trustee not in its individual capacity except as otherwise expressly
provided therein, but solely as indenture trustee, the Pass Through Trustee
not in its individual capacity except as otherwise expressly provided therein,
but solely as pass through trustee and the Subordination Agent not in its
individual capacity except as otherwise expressly provided therein, but solely
as subordination agent.
Parts. All appliances, parts, components, instruments, appurtenances,
accessories, furnishings and other equipment of whatever nature (other than
complete Engines or engines) which may from time to time be incorporated or
installed in or attached to the Airframe or any Engine or title to which
remains vested in the Lessor pursuant to Article 8 of the Lease.
Pass Through Agreement. The Pass Through Trust Agreement dated as of
May 1, 1997 between the Lessee and the Pass Through Trustee.
Pass Through Certificates. Any of the Pass Through Certificates,
1997-1-A, the Pass Through Certificates, 1997-1-B or the Pass Through
Certificates, 1997-1-C, in each case as issued by the related Pass Through
Trust; and "Pass Through Certificates" means all of the Pass Through
Certificates issued by each of the Pass Through Trusts.
Pass Through Closing Date. The Business Day on which the sale of the
Pass Through Certificates to the Underwriters pursuant to the Underwriting
Agreement takes place.
Pass Through Trust. The Federal Express Corporation 1997-1 Pass
Through Trust Class A, Federal Express Corporation 1997-1 Pass Through Trust
Class B and Federal Express Corporation 1997-1 Pass Through Trust Class C, in
each case formed pursuant to the related Series Supplement in accordance with
the Pass Through Agreement; and "Pass Through Trusts" means all of such Pass
Through Trusts.
Pass Through Trustee. First Security Bank, National Association, a
national banking association, in its capacity as Pass Through Trustee under
the Pass Through Agreement and each Pass Through Trust.
Past Due Rate. In respect of (A) any amount payable to the Owner
Participant or the Owner Trustee a rate per annum during the period from and
including the due date to but excluding the date on which such amount is paid
in full equal to 2% plus the Debt Rate and (B) any principal of or interest on
any Certificate or any other amount payable under the Indenture, any
Certificate or any other Operative Agreement that is not paid when due
(whether at Maturity, by acceleration, by optional or mandatory prepayment or
otherwise) to any Holder, the Indenture Trustee or the Pass Through Trustee, a
rate per annum during the period from and including the due date to but
excluding the date on which such amount is paid in full equal to (i) in the
case of any such amount payable to the Holder of any Certificate, 2% plus the
interest rate applicable to such Certificate and (ii) in the case of any other
such amount, 2% plus the Debt Rate.
Payment Date. Each January 15 and July 15 commencing on July 15,
1997.
Payment Default. Any event specified in Section 16.01(a) or 16.01(b)
of the Lease which with the giving of notice or lapse of time or both would
constitute an Event of Default.
Permitted Investments. Those investments enumerated in Section
23.01(a) (i), (ii), (iii) and (iv) of the Lease.
Person. Any individual, sole proprietorship, partnership, joint
venture, joint stock company, trust, unincorporated organization, association,
corporation, institution, entity or government (federal, state, local, foreign
or any agency, instrumentality, division or body thereof).
Preliminary Notice. Has the meaning specified in Section 4.01(a) of
the Lease.
Premium Termination Date. With respect to the Series A Certificates,
December 27, 2011, with respect to the Series B Certificates, February 5, 2010
and with respect to the Series C Certificates, March 22, 2007.
Prepayment Date. Has the meaning specified in Section 6.02(b) of the
Indenture.
Prepayment Price. Has the meaning specified in Section 6.02(b) of the
Indenture.
Principal Amount. With respect to a Certificate means the stated
original principal amount of such Certificate and, with respect to all
Certificates, means the aggregate stated original principal amounts of all
Certificates.
Property. Any right or interest in or to property of any kind
whatsoever, whether real, personal or mixed and whether tangible or intangible.
Proposed Termination Date. Has the meaning specified in Section
10.01(a) of the Lease.
Purchase Price. The amount specified as such in Ancillary Agreement
I.
Rating Agencies. Collectively, at any time, each nationally
recognized rating agency which shall have been requested to rate the Pass
Through Certificates and which shall then be rating the Pass Through
Certificates. The initial Rating Agencies will be Moody's and S&P.
Rating Agency Confirmation. With respect to any Operative Agreement
that is to be modified in any material respect on the Delivery Date or the
Transfer Date, if applicable, a written confirmation from each of the Rating
Agencies that the use of such Operative Agreement with such modifications
would not result in (i) a reduction of the rating for any Class of Pass
Through Certificates below the then current rating for such Class of Pass
Through Certificates or (ii) a withdrawal or suspension of the rating of any
Class of Pass Through Certificates.
Record Date. With respect to Payment Dates under the Indenture
(except a date for payment of defaulted interest), December 31 for January 15
Payment Dates and June 30 for July 15 Payment Dates, whether or not such date
is a Business Day.
Recourse Amount. Has the meaning specified in Section 17.10 of the
Participation Agreement.
Refinancing. A non-recourse loan to the Lessor arranged pursuant to
Section 15.01 of the Participation Agreement.
Register. Has the meaning set forth in Section 3.02 of the Indenture.
Registrar. Has the meaning set forth in Section 3.02 of the
Indenture.
Regulation D. Regulation D of the Board of Governors of the Federal
Reserve System (or any successor), as the same may be modified and
supplemented and in effect from time to time.
Remaining Weighted Average Life. On a given date with respect to any
Certificate the number of days equal to the quotient obtained by dividing (i)
the sum of each of the products obtained by multiplying (a) the amount of each
then remaining scheduled payment of principal of such Certificate by (b) the
number of days from and including such prepayment date to but excluding the
dates on which each such payment of principal is scheduled to be made; by (ii)
the then outstanding principal amount of such Certificate.
Renewal Rent. The amount payable by the Lessee as rent in accordance
with Section 4.01 of the Lease during any Renewal Term.
Renewal Term. Any Fixed Renewal Term or Fair Market Renewal Term with
respect to which the Lessee has exercised its option to renew the Lease
pursuant to Section 4.01(a) thereof.
Rent. All payments due from the Lessee under the Lease as Basic Rent,
Renewal Rent and Supplemental Rent, collectively.
Rent Payment Date. March 15, 2019 and each January 15 and July 15
commencing on January 15, 1998, and continuing thereafter during the Term.
Reoptimization Date. Has the meaning set forth in Section 2.03(b) of
the Participation Agreement.
Replacement Aircraft. Any aircraft substituted for the Aircraft
pursuant to Section 11.03(a) of the Lease.
Replacement Airframe. Has the meaning set forth in Section 11.03 of
the Lease.
Replacement Engine. A General Electric CF6-80C2-D1F engine (or an
engine of the same or another manufacturer) of equal or greater value,
remaining useful life and utility as the Engine being replaced, together with
all Parts relating to such engine; provided, however, that if such replacement
engine is not a General Electric CF6-80C2-D1F engine, such replacement engine
must then be commonly used in the commercial aviation industry on McDonnell
Douglas MD-11 airframes.
Responsible Officer. With respect to the Owner Trustee (except for
purposes of the Trust Agreement in which case the definition of Responsible
Officer set forth in Section 3.10 of the Trust Agreement is applicable) or the
Indenture Trustee, any officer in its Corporate Trust Administration, as the
case may be, designated by such Person to perform obligations under the
Operative Agreements, and with respect to any other party, any corporate
officer or (except in the case of the Owner Participant) other employee of a
party who, in the normal performance of his or her operational
responsibilities, with respect to the subject matter of any covenant,
agreement or obligation of such party pursuant to any Operative Agreement,
would have responsibility for and knowledge of such matter and the
requirements of any Operative Agreement with respect thereto.
S&P. Standard & Poor's Ratings Group.
Scheduled Delivery Date. The Delivery Date specified in the Delivery
Notice pursuant to Section 3.01 of the Participation Agreement.
SEC. The Securities and Exchange Commission of the United States and
any successor agencies or authorities.
Secured Obligations. Has the meaning specified in the Granting
Clause of the Indenture.
Securities Act. The Securities Act of 1933, as amended.
Series "A" or "Series A Certificates". Certificates issued and
designated as "Series A" under the Indenture, in the Principal Amount and
maturities and bearing interest as specified in Exhibit B to the Indenture
under the heading "Series A".
Series "B" or "Series B Certificates". Certificates issued and
designated as "Series B" under the Indenture, in the Principal Amount and
maturities and bearing interest as specified in Exhibit B to the Indenture
under the heading "Series B".
Series "C" or "Series C Certificates". Certificates issued and
designated as "Series C" under the Indenture, in the Principal Amount and
maturities and bearing interest as specified in Exhibit B to the Indenture
under the heading "Series C".
Series Supplement or Series Supplements. The Series Supplement
1997-1-A to be executed and delivered by the Lessee and the Pass Through
Trustee, the Series Supplement 1997-1-B to be executed and delivered by the
Lessee and the Pass Through Trustee or the Series Supplement 1997-1-C to be
executed and delivered by the Lessee and the Pass Through Trustee.
Sinking Fund Redemption Date. Has the meaning specified in Section
6.06 of the Indenture.
Sinking Fund Redemption Price. Has the meaning specified in Section
6.06 of the Indenture.
Special Aviation Counsel. Daugherty, Fowler & Peregrin.
Specified Investments. Shall mean (a) direct obligations of the
United States of America or obligations fully guaranteed by the United States
of America; (b) commercial paper rated A-1/P-1 by S&P and Moody's,
respectively or, if such ratings are unavailable, rated by any nationally
recognized rating organization in the United States equal to the highest
rating assigned by such rating organization; (c) investments in negotiable
certificates of deposit, time deposits, banker's acceptances, commercial paper
or other direct obligations of, or obligations guaranteed by, commercial banks
organized under the laws of the United States or of any political subdivision
thereof (or any U.S. branch of a foreign bank) with issuer ratings of at least
B/C by Thomson Bankwatch, having maturities no later than 90 days following
the date of such investment; (d) overnight federal funds transactions with
members of the Federal Reserve System arranged by federal funds brokers; or
(e) overnight repurchase agreements with respect to the securities described
in clause (a) above entered into with an office of a bank or trust company
which is located in the United States of America or any bank or trust company
which is organized under the laws of the United States or any state thereof
and has capital, surplus and undivided profits aggregating at least $500
million.
SSB. State Street Bank and Trust Company of Connecticut, National
Association, a national banking association.
Stipulated Loss Value. As of any Stipulated Loss Value Determination
Date during the Basic Term, the amount determined by multiplying the Purchase
Price by the percentage set forth in Schedule III of the Lease under the
heading "Stipulated Loss Value Factor" opposite such date (as such Schedule
III may be adjusted from time to time as provided in Section 3.04 of the
Lease), and during any Renewal Term, the amount determined pursuant to Section
4.01(b) of the Lease. Notwithstanding any other provisions of the Lease or
the Participation Agreement or the Indenture, each Stipulated Loss Value for
the Aircraft shall be, under any circumstances and in any event, an amount,
together with so much of the arrears portion of Basic Rent due and owing
through the date of payment of Stipulated Loss Value as does not constitute an
Excepted Payment, at least sufficient to pay in full as of such date of
payment the aggregate unpaid principal amount of and accrued interest on the
Certificates outstanding on such date of payment. Subject to the immediately
preceding sentence, it is understood and agreed that the amounts set forth on
Schedule III of the Lease, for dates other than Rent Payment Dates on which
arrears Basic Rent is due, fully reflect appropriate Basic Rent accruals and
credits of unearned Basic Rent and, accordingly, no further accrual or credit
shall be required whenever Stipulated Loss Value is to be calculated with
reference to any such date.
Stipulated Loss Value Determination Date. Each date set forth on
Schedule III of the Lease.
Subordination Agent. First Security Bank, National Association, a
national banking association, not in its individual capacity but solely as
Subordination Agent.
Supplemental Rent. (a) All amounts, liabilities and obligations
which the Lessee assumes or agrees to perform or pay under the Lease or under
the Participation Agreement or Tax Indemnity Agreement or any Ancillary
Agreement or any other Operative Agreement to SSB, the Lessor, the Owner
Participant, the Indenture Trustee, the Subordination Agent, any Liquidity
Provider or others, including, without limitation, payments of Stipulated Loss
Value, EBO Price and amounts calculated by reference to Termination Value, and
all amounts required to be paid by Lessee under the agreements, covenants and
indemnities contained in the Lease or in the Participation Agreement or the
Tax Indemnity Agreement or any other Operative Agreement, but excluding Basic
Rent and (b) all amounts that the Owner Trustee is obligated to pay in
accordance with clause (b) of the last paragraph of Section 2.04 of the
Indenture.
Tax. Has the meaning set forth in Section 8.01(a) of the
Participation Agreement.
Tax Indemnity Agreement. The Tax Indemnity Agreement (Federal
Express Corporation Trust No. N583FE), dated as of May 1, 1997, between the
Lessee and the Owner Participant.
Term. The Basic Term and any Renewal Term unless the Lease is
terminated earlier pursuant to its terms.
Termination Date. A Rent Payment Date during the Basic Term that is
on or after the fifth anniversary of the Delivery Date in the case of Article
10 of the Lease, and in the case of (i) Section 4.02(a)(A) of the Lease the
Rent Payment Date falling on January 15, 2013 or January 15, 2017, as the case
may be, (ii) Section 4.02(a)(D) or (E) of the Lease, a Rent Payment Date that
is on or after the fifth anniversary of the Delivery Date and (iii) Section
4.02(a)(F) of the Lease, January 15, 2014.
Termination Value. As of any Termination Date, the amount determined
by multiplying the Purchase Price by the percentage set forth in Schedule IV
of the Lease under the heading "Termination Value Factor" opposite such
Termination Date (as such Schedule IV may be adjusted from time to time as
provided in Section 3.04 of the Lease). Notwithstanding any other provisions
of the Lease, the Participation Agreement or the Indenture, each Termination
Value shall be, under any circumstances and in any event, an amount, together
with so much of the arrears portion of Basic Rent due and owing through the
date of payment of any amount calculated by reference to Termination Value as
does not constitute an Excepted Payment, at least sufficient to pay in full as
of such date of payment the aggregate unpaid principal amount of and accrued
interest on the Certificates outstanding on such date of payment. Subject to
the immediately preceding sentence, it is understood and agreed that the
amounts set forth on Schedule IV of the Lease, for dates other than Rent
Payment Dates on which arrears Basic Rent is due, fully reflect appropriate
Basic Rent accruals and credits of unearned Basic Rent and, accordingly, no
further accrual or credit shall be required whenever Termination Value is to
be calculated with reference to any such date.
Transfer Date. Has the meaning set forth in Section 2.02(b) of the
Participation Agreement.
Transaction Costs. Those costs and expenses set forth in Section
10.01(a) of the Participation Agreement.
Transportation Code. Title 49 of the United States Code, as amended
and in effect on the date of the Lease or as subsequently amended, or any
successor or substituted legislation at the time in effect and applicable, and
the regulations promulgated pursuant thereto.
Treasury Yield. At the time of determination with respect to any
Certificate, the interest rate (expressed as a semi-annual equivalent and as a
decimal and, in the case of United States Treasury bills, converted to a bond
equivalent yield) determined to be the per annum rate equal to the semi-annual
yield to maturity for United States Treasury securities maturing on the
Average Life Date on such Certificate and trading in the public securities
markets either as determined by interpolation between the most recent weekly
average yield to maturity for two series of United States Treasury securities,
trading in public securities markets, (i) one maturing as close as possible to,
but earlier than, the Average Life Date of such Certificate and (ii) the other
maturing as close as possible to, but later than, the Average Life Date of
such Certificate. In each case as published in the most recent H.15(519) or,
if a weekly average yield to maturity for United States Treasury securities
maturing on the Average Life Date of such Certificate is reported on the most
recent H.15 (519), such weekly average yield to maturity as published in such
H.15(919). "H.15(519)" means the weekly statistical release designated as
such, or any successor publication, published by the Board of Governors of the
Federal Reserve System. The date of determination of a Make-Whole Premium
will be the third Business Day prior to the applicable prepayment date and the
"most recent H.15(519)" means the H.15(519) published prior to the close of
business on the third Business Day prior to the applicable prepayment date.
Trust Agreement. The Trust Agreement (Federal Express Corporation
Trust No. N583FE), dated as of May 1, 1997, between the Owner Participant and
the Owner Trustee in its individual capacity.
Trust Estate. The Lessor's Estate.
Trust Indenture Act. The Trust Indenture Act of 1939, as amended.
Trust Indenture Estate. All estate, right, title and interest of the
Indenture Trustee in and to any of the property, rights, interests and
privileges granted to the Indenture Trustee pursuant to the Granting Clause of
the Indenture, other than Excepted Payments and any and all other rights of
the Owner Trustee or the Owner Participant expressly reserved to the Owner
Trustee or the Owner Participant pursuant to the Indenture.
Underwriters. Morgan Stanley & Co. Incorporated, First Chicago
Capital Markets, Inc., Goldman, Sachs & Co. and J.P. Morgan & Co.
Underwriting Agreement. The Underwriting Agreement dated May 22, 1997
among the Lessee and the Underwriters.
United States, U.S. or US. The United States of America.
U.S. Air Carrier. Any United States air carrier as to which there is
in force a certificate issued pursuant to Section 41102(a) or Section 41103 of
the Transportation Code, and as to which there is in force an air carrier
operating certificate issued pursuant to Chapter 447 of the Transportation
Code and Part 121 of the regulations under such Transportation Code, for
aircraft capable of carrying ten (10) or more individuals or 6,000 pounds or
more of cargo, or which may operate as an air carrier by certification or
otherwise under any successor or substitute provision thereof or in absence
thereof.
U.S. Person. A Person described in Section 7701(a)(30) of the Code.
Warranty Bill of Sale. The full warranty bill of sale covering the
Aircraft (and specifically referring to each Engine) executed by the Lessee,
as seller in favor of the Owner Trustee, as buyer, and to be dated the
Delivery Date.
TRUST INDENTURE AND SECURITY AGREEMENT
(FEDERAL EXPRESS CORPORATION TRUST NO. N584FE)
Dated as of May 1, 1997
between
STATE STREET BANK AND TRUST COMPANY OF CONNECTICUT,
NATIONAL ASSOCIATION,
Not in its Individual
Capacity, but solely
As Owner Trustee,
Owner Trustee
and
FIRST SECURITY BANK, NATIONAL ASSOCIATION,
Not in its Individual
Capacity, but solely
As Indenture Trustee,
Indenture Trustee
COVERING ONE MCDONNELL DOUGLAS MD-11F AIRCRAFT
SERIAL NO. 48436, REGISTRATION NO. N1768D
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TABLE OF CONTENTS
-----------------
Page
Initial Recitals......................................................... 1
Granting Clause.......................................................... 2
Habendum Clause.......................................................... 5
ARTICLE I
DEFINITIONS
Section 1.01. Definitions.............................................. 7
ARTICLE II
ISSUE, EXECUTION, FORM AND
REGISTRATION OF CERTIFICATES;
COLLATERAL ACCOUNT
Section 2.01. Authentication and Delivery of Certificates.............. 7
Section 2.02. Execution of Certificates................................ 8
Section 2.03. Certificate of Authentication............................ 8
Section 2.04. Form and Terms of Certificates; Payments of Principal,
Make-Whole Premium and Interest.......................... 8
Section 2.05. Payments from Trust Indenture Estate Only................ 11
Section 2.06. Registration, Transfer and Exchange...................... 12
Section 2.07. Mutilated, Defaced, Destroyed, Lost and Stolen
Certificates............................................. 13
Section 2.08. Cancellation of Certificates; Destruction Thereof........ 14
Section 2.09. Temporary Certificates................................... 14
Section 2.10. Termination of Interest in Trust Indenture Estate........ 15
Section 2.11. Certificates in Respect of Replacement Airframe.......... 15
Section 2.12. Assumption of Obligations Under Certificates and Other
Operative Agreements..................................... 15
Section 2.13. Establishment of Collateral Account...................... 16
Section 2.14. Investment of Funds on Deposit in the Collateral Account. 16
Section 2.15. Release of Debt Portion and Lien on the Collateral
Account and the Liquid Collateral on Delivery Date....... 17
Section 2.16. Cut-Off Date............................................. 18
Section 2.17. Subordination............................................ 18
Section 2.18. Reoptimization........................................... 18
ARTICLE III
COVENANTS
Section 3.01. Payment of Principal, Make-Whole Premium and Interest.... 19
Section 3.02. Offices for Payments, etc................................ 19
Section 3.03. Appointment to Fill a Vacancy in Office of Indenture
Trustee.................................................. 20
Section 3.04. Paying Agents............................................ 20
Section 3.05. Covenants of SSB and the Owner Trustee................... 20
Section 3.06. [Reserved]............................................... 21
Section 3.07. Disposal of Trust Indenture Estate....................... 21
Section 3.08. No Representations or Warranties as to Aircraft or
Documents................................................ 21
Section 3.09. Further Assurances; Financing Statements................. 22
ARTICLE IV
HOLDER LISTS
Section 4.01. Holder Lists; Ownership of Certificates.................. 22
ARTICLE V
RECEIPT, DISTRIBUTION AND APPLICATION OF
INCOME FROM THE TRUST INDENTURE ESTATE
Section 5.01. Basic Rent Distribution.................................. 22
Section 5.02. Event of Loss and Replacement; Prepayment................ 23
Section 5.03. Payment After Indenture Event of Default, etc............ 25
Section 5.04. Certain Payments......................................... 27
Section 5.05. Other Payments........................................... 27
Section 5.06. Payments to Owner Trustee................................ 27
Section 5.07. Application of Payments.................................. 28
Section 5.08. Investment of Amounts Held by Indenture Trustee.......... 28
Section 5.09. Withholding Taxes........................................ 29
ARTICLE VI
PREPAYMENT OF CERTIFICATES
Section 6.01. No Prepayment Prior to Maturity.......................... 29
Section 6.02. Prepayment of Certificates............................... 29
Section 6.03. Notice of Prepayment to Holders.......................... 31
Section 6.04. Deposit of Prepayment Price and Sinking Fund Redemption
Price.................................................... 32
Section 6.05. Certificates Payable on Prepayment Date.................. 32
Section 6.06. Mandatory Sinking Fund Redemption........................ 33
ARTICLE VII
INDENTURE EVENTS OF DEFAULT; REMEDIES
OF INDENTURE TRUSTEE AND HOLDERS
Section 7.01. Indenture Event of Default............................... 34
Section 7.02. Remedies................................................. 36
Section 7.03. Return of Aircraft, etc.................................. 38
Section 7.04. Indenture Trustee May Prove Debt......................... 41
Section 7.05. Remedies Cumulative...................................... 43
Section 7.06. Suits for Enforcement.................................... 43
Section 7.07. Discontinuance of Proceedings............................ 44
Section 7.08. Limitations on Suits by Holders.......................... 44
Section 7.09. Unconditional Right of Holders to Receive Principal,
Interest and Make-Whole Premium, and to Institute
Certain Suits............................................ 44
Section 7.10. Control by Holders....................................... 45
Section 7.11. Waiver of Past Indenture Default......................... 45
Section 7.12. Notice of Indenture Default.............................. 46
Section 7.13. Waiver of Appraisement, etc.; Laws....................... 46
ARTICLE VIII
RIGHTS OF THE OWNER TRUSTEE
AND THE OWNER PARTICIPANTS
Section 8.01. Certain Rights of Owner Trustee and Owner Participants... 47
Section 8.02. Owner Participant' Right to Elect to Prepay or Purchase the
Certificates............................................. 50
Section 8.03. Certain Rights of Owner Participant...................... 51
ARTICLE IX
CONCERNING THE INDENTURE TRUSTEE
Section 9.01. Acceptance of Trusts..................................... 53
Section 9.02. Duties and Responsibilities of the Indenture Trustee;
During an Indenture Event of Default; Prior to an
Indenture Event of Default............................... 53
Section 9.03. Certain Rights of the Indenture Trustee.................. 55
Section 9.04. Indenture Trustee Not Responsible for Recitals,
Disposition of Certificates or Application of
Proceeds Thereof......................................... 56
Section 9.05. Indenture Trustee and Agents May Hold Certificates;
Collections, etc......................................... 56
Section 9.06. Moneys Held by Indenture Trustee......................... 57
Section 9.07. Right of Indenture Trustee to Rely on Officer's
Certificate, etc......................................... 57
Section 9.08. Replacement Airframes and Replacement Engines............ 57
Section 9.09. Indenture and Security Agreement Supplement for
Replacements............................................. 60
Section 9.10. Effect of Replacement.................................... 61
Section 9.11. Compensation............................................. 61
ARTICLE X
CONCERNING THE HOLDERS
Section 10.01. Evidence of Action Taken by Holders..................... 61
Section 10.02. Proof of Execution of Instruments and of Holding of
Certificates............................................ 62
Section 10.03. Holders to Be Treated as Owners......................... 62
Section 10.04. Certificates Owned by Owner Trustee and the Lessee Deemed
Not Outstanding......................................... 62
Section 10.05. Right of Revocation of Action Taken..................... 63
Section 10.06. ERISA................................................... 63
ARTICLE XI
INDEMNIFICATION OF INDENTURE
TRUSTEE BY OWNER TRUSTEE
ARTICLE XII
SUCCESSOR TRUSTEES
Section 12.01. Notice of Successor Owner Trustee....................... 65
Section 12.02. Resignation and Removal of Indenture Trustee;
Appointment of Successor................................ 65
Section 12.03. Persons Eligible for Appointment as Indenture Trustee... 66
Section 12.04. Acceptance of Appointment by Successor Trustee.......... 67
Section 12.05. Merger, Conversion, Consolidation or Succession to
Business of Indenture Trustee........................... 67
Section 12.06. Appointment of Separate Trustees........................ 68
ARTICLE XIII
SUPPLEMENTS AND AMENDMENTS TO THIS
TRUST INDENTURE AND OTHER DOCUMENTS
Section 13.01. Supplemental Indentures Without Consent of Holders...... 70
Section 13.02. Supplemental Indentures With Consent of Holders......... 72
Section 13.03. Effect of Supplemental Indenture........................ 73
Section 13.04. Documents to Be Given to Indenture Trustee.............. 73
Section 13.05. Notation on Certificates in Respect of Supplemental
Indentures.............................................. 73
Section 13.06. No Request Necessary for Lease Supplement or Indenture
and Security Agreement Supplement....................... 73
Section 13.07. Notices to Liquidity Providers.......................... 74
ARTICLE XIV
SATISFACTION AND DISCHARGE OF INDENTURE;
UNCLAIMED MONEYS
Section 14.01. Satisfaction and Discharge of Indenture; Termination of
Indenture............................................... 74
Section 14.02. Application by Indenture Trustee of Funds Deposited for
Payment of Certificates................................. 75
Section 14.03. Repayment of Moneys Held by Paying Agent................ 76
Section 14.04. Transfer of Moneys Held by Indenture Trustee and Paying
Agent Unclaimed for Two Years and Eleven Months......... 76
ARTICLE XV
MISCELLANEOUS
Section 15.01. Capacity in Which Acting................................ 76
Section 15.02. No Legal Title to Trust Indenture Estate in Holders..... 76
Section 15.03. Sale of Trust Indenture Estate by Indenture Trustee is
Binding................................................. 76
Section 15.04. Indenture for Benefit of Owner Trustee, Indenture
Trustee, Owner Participant, Holders and Liquidity
Providers............................................... 77
Section 15.05. No Action Contrary to the Lessee's Rights Under the
Lease................................................... 77
Section 15.06. Notices................................................. 77
Section 15.07. Officer's Certificates and Opinions of Counsel;
Statements to Be Contained Therein...................... 78
Section 15.08. Severability............................................ 79
Section 15.09. No Oral Modifications or Continuing Waivers............. 79
Section 15.10. Successors and Assigns.................................. 79
Section 15.11. Headings................................................ 79
Section 15.12. Normal Commercial Relations............................. 79
Section 15.13. Governing Law; Counterparts............................. 80
Exhibit A -- Form of Indenture and Security Agreement Supplement
Exhibit B -- Form of Certificate
Schedule I -- [Reserved]
Schedule II -- Definitions
TRUST INDENTURE AND SECURITY AGREEMENT
(FEDERAL EXPRESS CORPORATION TRUST NO. N584FE)
TRUST INDENTURE AND SECURITY AGREEMENT (FEDERAL EXPRESS CORPORATION
TRUST NO. N584FE) dated as of May 1, 1997 (the "Indenture"), between STATE
STREET BANK AND TRUST COMPANY OF CONNECTICUT, NATIONAL ASSOCIATION, a national
banking association, not in its individual capacity, except as otherwise
specifically set forth herein (when acting in such individual capacity,
"SSB"), but solely as owner trustee (the "Owner Trustee") under the Trust
Agreement, as defined herein, and FIRST SECURITY BANK, NATIONAL ASSOCIATION, a
national banking association, as Indenture Trustee hereunder (the "Indenture
Trustee").
W I T N E S S E T H:
WHEREAS, capitalized terms used herein shall have the respective
meanings set forth or referred to in Article I hereof;
WHEREAS, the Initial Owner Participant and SSB have, immediately
prior to the execution and delivery of this Indenture, entered into a Trust
Agreement (Federal Express Corporation Trust No. N584FE) dated as of the date
hereof (as amended or otherwise modified from time to time in accordance with
the provisions thereof and of the Participation Agreement, the "Trust
Agreement"), whereby, among other things, SSB has declared a certain trust for
the use and benefit of the Initial Owner Participant, subject, however, to the
Lien of this Indenture for the use and benefit of, and with the priority of
payment to, the holders of the Certificates issued hereunder, and the Owner
Trustee is authorized and directed to execute and deliver this Indenture;
WHEREAS, the Owner Trustee desires by this Indenture, among other
things (i) to provide for the issuance by the Owner Trustee of Certificates as
provided in the Participation Agreement, and (ii) to provide for the
assignment, mortgage and pledge by the Owner Trustee to the Indenture Trustee,
as part of the Trust Indenture Estate hereunder of the Owner Trustee's right,
title and interest in the Liquid Collateral and after the Delivery Date for
the assignment, mortgage and pledge by the Owner Trustee to the Indenture
Trustee, as part of the Trust Indenture Estate hereunder, of among other
things, certain of the Owner Trustee's estate, right, title and interest in
and to the Aircraft and the Indenture Documents and certain payments and other
amounts (other than Excepted Payments) received hereunder or thereunder in
accordance with the terms hereof, as security for, among other things, the
Owner Trustee's obligations to the Certificate Holders and for the benefit and
security of such Holders;
WHEREAS, all things have been done to make the Certificates, when
executed by the Owner Trustee, and authenticated, issued and delivered
hereunder, the valid obligations of the Owner Trustee; and
WHEREAS, all things necessary to make this Indenture the valid,
binding and legal obligation of the Owner Trustee, enforceable in accordance
with its terms, have been done and performed and have happened.
NOW, THEREFORE, the parties agree as follows:
GRANTING CLAUSE
NOW, THEREFORE, in consideration of the mutual promises contained
herein and to secure (i) the prompt payment of the principal of and Make-Whole
Premium, if any, and interest on, and all other amounts due with respect to,
all the Certificates from time to time outstanding under this Indenture and
all other amounts due hereunder and (ii) the performance and observance by the
Owner Trustee of all the agreements, covenants and provisions in this
Indenture, in the Certificates, in the Participation Agreement and in the
Lease contained for the benefit of the Holders of the Certificates, and the
prompt payment of any and all amounts from time to time owing under the
Participation Agreement by the Owner Trustee, any Owner Participant or the
Lessee to the Holders (collectively the "Secured Obligations") and for the uses
and purposes and subject to the terms and provisions of this Indenture, and in
consideration of the premises and of the covenants in this Indenture and in the
Certificates and of the purchase of the Certificates by their Holders, and of
the sum of $1 paid to the Owner Trustee by the Indenture Trustee at or before
the delivery of this Indenture, the receipt and sufficiency of which is hereby
acknowledged, the Owner Trustee has granted, bargained, sold, assigned,
transferred, conveyed, mortgaged, pledged, granted a first priority security
interest in and confirmed, and does hereby grant, bargain, sell, assign,
transfer, convey, mortgage, pledge and grant a first priority security
interest in and confirm to the Indenture Trustee, its successors and assigns,
in trust for the equal and ratable security and benefit of the Holders from
time to time of the Certificates, a first priority security interest in and
first mortgage Lien on all estate, right, title and interest of the Owner
Trustee in, to and under the following described property, rights and
privileges other than Excepted Payments, which collectively, excluding
Excepted Payments but including all property specifically subjected to the
Lien of this Indenture by the terms hereof, by any Indenture and Security
Agreement Supplement or any mortgage supplemental to this Indenture, are
included within the Trust Indenture Estate, subject always to the rights
granted to the Owner Trustee or any Owner Participant hereunder and to the
other terms and conditions of this Indenture:
(1) The Airframe, as the same is more particularly described in the
Indenture and Security Agreement Supplement and any airframe substituted in
replacement thereof pursuant to the provisions of this Indenture; the Engines,
as the same are more particularly described in the Indenture and Security
Agreement Supplement, whether or not such Engines shall be installed in or
attached to the Airframe or any other airframe, and any Replacement Engine
therefor; and all Parts in respect of the Airframe and the Engines and all
records, logs and other documents at any time maintained with respect to the
foregoing property;
(2) The Lease and all Rent thereunder, including, without limitation,
all amounts of Basic Rent and Supplemental Rent, and payments of any kind
thereunder and including all rights of the Owner Trustee to execute any
election or option or to give or receive any notice, consent, waiver or
approval under or in respect of the Lease or to accept any surrender of the
Aircraft or any part thereof as well as any rights, powers or remedies on the
part of the Owner Trustee, whether arising under the Lease or by statute or at
law or in equity or otherwise arising out of any Event of Default;
(3) The Modification Agreement (to the extent assigned to the Owner
Trustee pursuant to the Warranty Bill of Sale), the GTA, the Engine Warranty
Assignment and the Engine Consent, the Bills of Sale, the Ancillary Agreements
and the Participation Agreement (to the extent of amounts payable to the Owner
Trustee thereunder) (collectively, and together with the Lease, the Trust
Agreement and the Certificates, the "Indenture Documents"), including all
rights of the Owner Trustee to execute any election or option or to give or
receive any notice, consent, waiver or approval under or in respect of any of
the foregoing documents and instruments;
(4) All the tolls, rents, issues, profits, products, revenues and
other income (including sales proceeds) of the property subjected or required
to be subjected to the Lien of this Indenture, and all of the estate, right,
title and interest of the Owner Trustee in and to the same and every part of
said property;
(5) The Collateral Account, the Liquid Collateral and all other
moneys and securities (including Permitted Investments) now or hereafter paid
or deposited or required to be paid or deposited to or with the Indenture
Trustee by or for the account of the Owner Trustee pursuant to any term of any
Operative Agreement, except the Tax Indemnity Agreement, and held or required
to be held by the Indenture Trustee hereunder;
(6) All requisition proceeds with respect to the Aircraft or any part
thereof (to the extent of the Owner Trustee's interest therein pursuant to the
terms of the Lease) and all insurance proceeds with respect to the Aircraft or
any part thereof from insurance required to be maintained by the Lessee under
Article 13 of the Lease, but excluding any insurance maintained by the Lessee
and not required under Article 13 of the Lease; and
(7) All proceeds of the foregoing.
Notwithstanding the foregoing provisions:
(a) (i) whether or not an Indenture Event of Default shall occur and
be continuing, the Owner Trustee and any Owner Participant shall at all times
retain the right, to the exclusion of the Indenture Trustee, (A) to Excepted
Payments and to commence an action at law to obtain such Excepted Payments and
(B) to adjust Basic Rent and the percentages relating to Stipulated Loss Value
and Termination Value and the EBO Price as provided in Section 3.04 of the
Lease, (C) to exercise any election or option to make any decision or
determination, or to give or receive any notice, consent, waiver or approval,
or to take any other action in respect of, but in each case only to the extent
relating to, Excepted Payments (except for, in respect of Basic Rent
constituting an Excepted Payment, the manner by which such amount is paid),
(D) to retain the rights of the "Lessor" with respect to solicitations of
bids, and the election to retain the Aircraft pursuant to Article 10 of the
Lease, (E) to retain the right of "Lessor" to determine the Fair Market Rental
or Fair Market Value pursuant to Article 4 of the Lease, (F) to retain all
rights with respect to insurance maintained for its own account which Section
13.05 of the Lease specifically confers on the "Lessor" and (G) to exercise,
to the extent necessary to enable it to exercise its rights under Section 8.03
hereof, the rights of the "Lessor" under Section 17.04 of the Lease;
(ii) whether or not an Indenture Event of Default shall occur and be
continuing, the Owner Trustee and the Indenture Trustee shall each have the
rights separately but not to the exclusion of the other (agreement of both
required in the case of clause (E) below), (A) to receive from the Lessee all
notices, certificates, reports, filings, opinions of counsel, copies of all
documents and all information which the Lessee is permitted or required to
give or furnish to the "Lessor" pursuant to the Lease or to the Owner Trustee
pursuant to any other Operative Agreement, (B) to exercise inspection rights
pursuant to Section 14.01 of the Lease (provided that if an Indenture Event of
Default shall be continuing, no inspection right of the Owner Trustee shall
interfere with the efforts of the Indenture Trustee to exercise remedies under
the Lease or this Indenture), (C) to maintain separate insurance pursuant to
Section 13.05 of the Lease and to retain all rights with respect to such
insurance maintained for its own account, (D) to give any notice of default
under Section 16.01 of the Lease, and (E) the right to consent to changes to
the list of countries on Schedule III to the Participation Agreement;
(iii) (A) so long as no Indenture Event of Default shall have
occurred and be continuing (but subject to the provisions of Section 8.01
hereof), the Owner Trustee shall retain the right, to the exclusion of the
Indenture Trustee, to approve as satisfactory any accountants, engineers,
appraisers or counsel to render services for or issue appraisals, reports,
certificates or opinions to the Owner Trustee and to exercise all rights,
elections and options of the Lessor in connection with the return, renewal or
purchase of the Aircraft and to exercise rights with respect to the use,
operation, maintenance and modification of the Aircraft, in each case pursuant
to express provisions of the Operative Agreements (other than in connection
with an Event of Default), and (B) so long as no Indenture Event of Default
not constituting an Event of Default shall have occurred and be continuing
(but subject to the provisions of Section 8.01 hereof), the Owner Trustee
shall retain the right, jointly with the Indenture Trustee (agreement of both
not being required), to further assurances and financial information from the
Lessee pursuant to Section 19.01 of the Lease (other than the right to receive
any funds to be delivered to the "Lessor" under the Lease (except funds
delivered with respect to Excepted Payments);
(iv) at all times the Owner Trustee shall have the right as Lessor,
but not to the exclusion of the Indenture Trustee, to seek specific
performance of the covenants of the Lessee under the Lease relating to the
protection, insurance, maintenance, possession and use of the Aircraft; and
(v) at all times the Owner Trustee and the Owner Participant shall
have the rights granted to them under Articles VI, VIII and X and Section 7.02
hereof.
(b) The leasehold interest granted to the Lessee by the Lease shall
not be subject to the security interest granted by this Indenture, and nothing
in this Indenture shall affect the rights of the Lessee under the Lease so
long as no Event of Default has occurred and is continuing.
HABENDUM CLAUSE
TO HAVE AND TO HOLD the aforesaid property unto the Indenture Trustee,
its successors and assigns, in trust for the equal and ratable benefit and
security of the Holders from time to time of the Certificates, without any
priority of any one Certificate over any other and for the uses and purposes
and subject to the terms and conditions set forth in this Indenture.
It is expressly agreed that anything contained in this Indenture to
the contrary notwithstanding, the Owner Trustee shall remain liable under the
Indenture Documents to perform all of the obligations assumed by it under any
of those documents, all in accordance with and pursuant to the terms and
provisions of those documents, and the Indenture Trustee and the Holders of
the Certificates shall have no obligation or liability under the Indenture
Documents by reason of or arising out of the assignment under this Indenture,
nor shall the Indenture Trustee or the Holders of the Certificates be required
or obligated in any manner to perform or fulfill any obligations of the Owner
Trustee under or pursuant to the Indenture Documents or, except as expressly
provided in this Indenture, to make any payment, or to make any inquiry as to
the nature or sufficiency of any payment received by it, or present or file
any claim, or take any action to collect or enforce the payment of any amounts
which may have been assigned to it or to which it may be entitled at any time
or times.
Effective upon the occurrence and continuance of an Indenture Event of
Default, the Owner Trustee hereby constitutes the Indenture Trustee the true
and lawful attorney of the Owner Trustee, irrevocably, with full power (in the
name of the Owner Trustee or otherwise), subject to the terms and conditions
of this Indenture, to ask, require, demand, receive, compound and give
acquittance for any and all Basic Rent, Supplemental Rent payable to the Owner
Trustee, Stipulated Loss Value and Termination Value payments, insurance
proceeds and any and all moneys and claims for moneys due and to become due
under or arising out of the Lease (subject to Section 8.01 hereof) or the
other Indenture Documents (other than Excepted Payments), to endorse any
checks or other instruments or orders in connection with the same and to file
any claims, take any action or institute any proceeding which the Indenture
Trustee may deem to be necessary or advisable in the premises.
Under the Lease the Lessee is directed to make all payments of Rent
(other than Excepted Payments not constituting Basic Rent) payable to the
Owner Trustee and all other amounts (other than Excepted Payments not
constituting Basic Rent) which are required to be paid to or deposited with
the Owner Trustee pursuant to the Lease directly to the Indenture Trustee at
such address in the United States of America as the Indenture Trustee shall
specify for application as provided in this Indenture. The Owner Trustee
agrees that if, notwithstanding such provision, it shall have received any
such amounts, promptly on receipt of any such payment, it will transfer to the
Indenture Trustee any and all moneys from time to time received by the Owner
Trustee constituting part of the Trust Indenture Estate for distribution by
the Indenture Trustee pursuant to this Indenture, except that the Owner
Trustee shall accept for distribution pursuant to the Trust Agreement (i) any
amounts distributed to it by the Indenture Trustee under this Indenture, and
(ii) any Excepted Payments not constituting Basic Rent.
The Owner Trustee agrees that at any time and from time to time, upon
the written request of the Indenture Trustee, the Owner Trustee will promptly
and duly execute and deliver or cause to be duly executed and delivered any
and all such further instruments and documents as the Indenture Trustee may
reasonably deem desirable in obtaining the full benefits of the assignment
hereunder and of the rights and powers herein granted; provided, however, that
the Owner Trustee shall have no obligation to execute and deliver or cause to
be executed or delivered to the Indenture Trustee any such instrument or
document if such execution and delivery would result in the imposition of
additional liabilities on the Owner Trustee or any Owner Participant or would
result in a burden on such Owner Participant's business activities, unless the
Owner Trustee or such Owner Participant, as the case may be, is indemnified to
its reasonable satisfaction against any losses, liabilities and expenses
incurred in connection with such execution and delivery.
The Owner Trustee does hereby warrant and represent that it has not
assigned, pledged or otherwise disposed of, and hereby covenants that it will
not assign or pledge or otherwise dispose of, so long as the assignment
hereunder shall remain in effect and shall not have been terminated pursuant
to Section 14.01 hereof, any of its right, title or interest hereby assigned,
to anyone other than the Indenture Trustee, and that it will not, except in
respect of Excepted Payments or otherwise as provided in or permitted by this
Indenture, accept any payment from the Lessee or any sublessee (other than
Excepted Payments not constituting Basic Rent), enter into an agreement
amending or supplementing any of the Operative Agreements, execute any waiver
or modification of, or consent under the terms of any of the Operative
Agreements, settle or compromise any claim (other than claims in respect of
Excepted Payments) against the Lessee arising under any of the Operative
Agreements, or submit or consent to the submission of any dispute, difference
or other matter arising under or in respect of any of the Operative
Agreements, to arbitration thereunder.
Concurrently with the delivery of this Indenture, the Owner Trustee
has delivered to the Indenture Trustee executed counterparts of the Trust
Agreement and the chattel paper original counterpart of the Lease.
It is hereby further covenanted and agreed by and between the parties
as follows:
ARTICLE I
DEFINITIONS
Section 1.01. Definitions. Unless the context otherwise requires,
capitalized terms utilized herein shall have the meanings set forth in
Schedule II hereto for all purposes of this Indenture and shall be equally
applicable to both the singular and plural forms of the terms defined.
ARTICLE II
ISSUE, EXECUTION, FORM AND
REGISTRATION OF CERTIFICATES;
COLLATERAL ACCOUNT
Section 2.01. Authentication and Delivery of Certificates.
Forthwith upon the execution and delivery of this Indenture, and from time to
time thereafter, Certificates in an aggregate principal amount not in excess
of the amount specified in Section 2.04 hereof (except as otherwise provided
in Sections 2.06 and 2.07 hereof) shall be executed by the Owner Trustee and
delivered to the Indenture Trustee for authentication, and the Indenture
Trustee shall thereupon authenticate and deliver said Certificates to or upon
the oral or written order of the Owner Trustee, signed, if written, by an
authorized officer of the Owner Trustee, without any further action by the
Owner Trustee.
Section 2.02. Execution of Certificates. The Certificates shall be
signed on behalf of the Owner Trustee by an authorized officer of SSB. Such
signatures may be the manual or facsimile signatures of such officer and minor
errors or defects in any reproduction of any such signature shall not affect
the validity or enforceability of any Certificate which has been duly
authenticated and delivered by the Indenture Trustee.
In case any officer of SSB who shall have signed any of the
Certificates shall cease to be such officer before the Certificate so signed
shall be authenticated and delivered by the Indenture Trustee or disposed of
by SSB, such Certificate nevertheless may be authenticated and delivered or
disposed of as though the person who signed such Certificate had not ceased to
be such officer of SSB; and any Certificate may be signed on behalf of the
Owner Trustee by such person or persons as, at the actual date of the
execution of such Certificate, shall be the proper officers of SSB, although
at the date of the execution and delivery of this Indenture any such person
was not such an officer. Certificates bearing the facsimile signatures of
individuals who were authorized officers of SSB at the time such Certificates
were issued shall bind the Owner Trustee, notwithstanding that such
individuals or any of them have ceased to hold such offices prior to the
authentication and delivery of such Certificates or did not hold such offices
at the respective dates of such Certificates.
Section 2.03. Certificate of Authentication. Only such Certificates
as shall bear thereon a certificate of authentication substantially in the
form set forth in Exhibit B, executed by the Indenture Trustee by manual
signature of one of its authorized officers, shall be entitled to the security
and benefits of this Indenture or be valid or obligatory for any purpose.
Such certificate by the Indenture Trustee upon any Certificate executed by the
Owner Trustee shall be conclusive evidence that the Certificate so
authenticated has been duly authenticated and delivered hereunder and that the
Holder, as evidenced on the Register, is entitled to the security and benefits
of this Indenture.
Section 2.04. Form and Terms of Certificates; Payments of Principal,
Make-Whole Premium and Interest. The Certificates and the Indenture Trustee's
certificate of authentication shall be substantially in the form set forth in
Exhibit B hereto. Certificates may differ with respect to Maturity and as to
other terms. The Certificates shall be issuable as registered securities
without coupons and shall be numbered, lettered, or otherwise distinguished in
such manner or in accordance with such plans as the Owner Trustee executing
the same may determine with the approval of the Indenture Trustee.
The aggregate principal amount of Certificates that may be
authenticated and delivered under this Indenture is limited as provided in the
form of Certificate attached as Exhibit B hereto. The Certificates shall be
issued in registered form only and in denominations of $1,000 and any integral
multiple thereof, shall be dated the Certificate Closing Date, shall be issued
in three separate series consisting of Series A, Series B and Series C and
shall be issued in the Maturities and principal amounts, and shall bear
interest at the rates per annum, specified in the form of Certificate set forth
in Exhibit B.
Any of the Certificates may be issued with appropriate insertions,
omissions, substitutions and variations, and may have imprinted or otherwise
reproduced thereon such legend or legends, not inconsistent with the
provisions of this Indenture, as may be required to comply with any law or
with any rules or regulations pursuant thereto, or with the rules of any
securities market in which the Certificates are admitted to trading, or to
conform to general usage.
Each Certificate shall bear interest from the date of original
issuance thereof or from the most recent date to which interest has been paid
and duly provided for, as the case may be, which shall be payable on the dates
specified on the face of the form of Certificate set forth in Exhibit B hereto
until the principal thereof is paid. Interest shall be calculated on the
basis of a 360-day year of twelve 30-day months.
Notwithstanding the preceding paragraph, each Certificate shall bear
interest at the Past Due Rate on any principal, interest and any other amount
payable hereunder or under such Certificate, which shall not be paid in full
when due (whether at stated maturity, by acceleration, by mandatory prepayment
or otherwise), for the period from and including the due date thereof to but
excluding the date the same is paid in full, payable from time to time on
demand of the Indenture Trustee.
The principal of, and Make-Whole Premium, if any, and interest on, the
Certificates shall be payable at the Corporate Trust Department of the
Indenture Trustee or at any office or agency maintained for such purpose
pursuant to Section 3.02 hereof in immediately available funds prior to 10:30
A.M. (New York time) on the due date thereof and the Indenture Trustee shall
remit all such amounts received by it to the Holders at such account or
accounts at such financial institution or institutions as the Holders shall
have designated to the Indenture Trustee in writing, in immediately available
funds, such payment to be made if the payment was received prior to 10:30 A.M.
New York time by the Indenture Trustee on any Business Day, by 12:00 noon New
York time on such Business Day; otherwise, the Indenture Trustee shall make
payment promptly, but not later than 11:00 A.M. New York time on the next
succeeding Business Day; provided, however, that interest may be payable at the
option of the Indenture Trustee or its Paying Agent, as defined in Section
3.04, by mailing checks for such interest payable to or upon the written order
of the Holders entitled thereto as they shall appear on the Register. If any
amount payable under the Certificates, or under this Indenture, falls due on a
day that is not a Business Day, then such sum shall be payable on the next
succeeding Business Day, without (provided that payment is made on such next
succeeding Business Day) additional interest thereon for the period of such
extension.
The Holder at the close of business on any Record Date with respect
to any Payment Date shall be entitled to receive the interest if any payable
on such Payment Date notwithstanding any transfer or exchange of such
Certificate subsequent to the Record Date and prior to such Payment Date,
except if and to the extent the Owner Trustee shall default in the payment of
the interest due on such Payment Date, in which case such defaulted interest
shall be paid to the Holder at the close of business on a subsequent Record
Date (which shall be not less than five (5) or more than fifteen (15) Business
Days prior to the date of payment of such defaulted interest) established by
notice given by mail by or on behalf of the Owner Trustee to the Holders not
less than fifteen (15) days preceding such subsequent Record Date.
The Owner Trustee agrees to pay to the Indenture Trustee for
distribution in accordance with Section 5.04 hereof (a) any and all indemnity
amounts received by the Owner Trustee which are payable by the Lessee to (i)
the Indenture Trustee in its individual capacity, (ii) the Subordination Agent
or (iii) each Liquidity Provider, in each case pursuant to Article 8 or 9 of
the Participation Agreement (it being acknowledged that the Lessee has been
instructed to pay such amounts to the Person or Persons entitled thereto) and
(b) the Owner Trustee's pro rata share of all amounts owed to each Liquidity
Provider by the Subordination Agent under each Liquidity Facility other than
amounts due as (i) repayments of the principal of advances thereunder, and (ii)
interest on Interest Drawings and Final Drawings except to the extent included
in Net Interest and Related Charges. As used in this Section, the Owner
Trustee's pro rata share means as of any time:
(A) with respect to all amounts other than Net Interest and
Related Charges, a fraction the numerator of which is the aggregate
principal balance then outstanding of the Certificates issued under
this Indenture (other than the Series C Certificates) and the
denominator of which is the aggregate principal balance of all
Certificates issued under this Indenture and the Related Indentures
(other than the Series C Certificates), plus
(B) with respect to all Net Interest and Related Charges (x)
if there exists a Payment Default under any Certificate issued under
this Indenture a fraction, the numerator of which is the aggregate
principal balance then outstanding of Certificates issued under this
Indenture (other than the Series C Certificates) and the denominator
of which is the aggregate principal balance then outstanding of all
Certificates issued under this Indenture and the Related Indentures
(other than the Series C Certificates) under which there exists a
Payment Default or (y) at all other times, zero.
As used in this Section, "Net Interest and Related Charges" means the sum of
(i) the amount, if any, by which interest payable to each Liquidity Provider
on any Interest Drawing and/or Final Drawing exceeds the amount which would be
payable if such drawings bore interest at the weighted average Past Due Rate
applicable to amounts in default on all Certificates plus (ii) any amounts
payable under Section 3.01, Section 3.02, Section 3.03, Section 3.09 or
Section 7.07 of each Liquidity Facility (or similar provisions of any
replacement Liquidity Facility) which result from any Interest Drawing or
Final Drawing. As used in this Section, a Payment Default when used in
connection with a Certificate issued hereunder or a Certificate issued under
any Related Indenture means a default in the payment of principal thereof or
interest thereon (which default has not been cured), other than solely because
of acceleration. As used in this Section, "Related Indentures" means,
collectively, the Trust Indenture and Security Agreement for each of Federal
Express Corporation Trust Nos. N670FE, N671FE, N672FE, N673FE, N674FE and
N583FE, each dated as of May 1, 1997, between the Owner Trustee and the
Indenture Trustee, the Trust Indenture and Security Agreement for Federal
Express Corporation Trust No. N581FE, dated as of May 1, 1997, between
Wilmington Trust Company, as owner trustee and the Indenture Trustee, and the
Trust Indenture and Security Agreement for Federal Express Corporation Trust
No. N587FE, dated as of December 1, 1996, as amended and restated as of May 1,
1997, between Wilmington Trust Company, as owner trustee and the Indenture
Trustee.
Section 2.05. Payments from Trust Indenture Estate Only. All
payments to be made by the Owner Trustee under this Indenture shall be made
only from the income and the proceeds from the Lessor's Estate to the extent
included in the Trust Indenture Estate and from any other amounts of the type
described in Section 5.01 hereof to the extent actually received by the
Indenture Trustee and only to the extent that the Owner Trustee shall have
sufficient income or proceeds from the Lessor's Estate to the extent included
in the Trust Indenture Estate (and such other amounts) to enable the Indenture
Trustee to make distributions of the amounts due in respect of the
Certificates in accordance with the terms hereof and thereof. Each Holder by
its acceptance of a Certificate agrees that it will look solely to the income
and proceeds from the Trust Indenture Estate (and such other amounts of the
type described in Section 5.01 hereof to the extent actually received by the
Indenture Trustee) to the extent available for distribution to it as provided
herein and that neither the Owner Participant, the Owner Trustee, SSB nor the
Indenture Trustee is personally liable to such Holder for any amounts payable
under this Indenture or such Certificate or for any amounts payable or
liability under any Certificate or this Indenture, except as expressly
provided herein in the case of SSB, the Owner Trustee or the Indenture
Trustee.
SSB is not personally liable to any Holder, the Lessee, the Owner
Participant or the Indenture Trustee for any amounts payable under this
Indenture or for any liability under this Indenture or the Certificates,
except as a result of SSB's gross negligence or willful misconduct, or as
otherwise expressly provided herein or in the Participation Agreement.
If (1) all or any part of the Lessor's Estate becomes the property of
a debtor subject to the reorganization provisions of the Bankruptcy Code, (2)
pursuant to such reorganization provisions any Owner Participant is required,
by reason of such Owner Participant being held to have recourse liability to
the debtor or the trustee of the debtor directly or indirectly, to make
payment on account of any amount payable as principal of or interest,
Make-Whole Premium or other amounts payable on the Certificates, and (3) the
Indenture Trustee actually receives any Recourse Amount which reflects any
payment by an Owner Participant on account of (2) above, then the Indenture
Trustee shall promptly refund to each Owner Participant such Recourse Amount.
Nothing contained in this paragraph shall prevent the Indenture Trustee from
enforcing any personal recourse obligation (and retaining the proceeds
thereof) of any Owner Participant under the Participation Agreement, or from
retaining any amount paid by any Owner Participant under Sections 5.01, 8.02
and 8.03 hereof.
Section 2.06. Registration, Transfer and Exchange. The Indenture
Trustee will keep, on behalf of the Owner Trustee, at each office or agency to
be maintained for the purpose as provided in Section 3.02 hereof a Register or
Registers on which, subject to such reasonable regulations as it may
prescribe, it will register, and will register the transfer of, Certificates
as provided in this Article. Such Register shall be in written form in the
English language or in any other form capable of being converted into such
form within a reasonable period of time.
Upon due presentation for registration of transfer of any Certificate
at any such office or agency, the Owner Trustee shall execute and the
Indenture Trustee shall authenticate and deliver in the name of the transferee
or transferees a new Certificate or Certificates of the same Series and
Maturity, principal amount and interest rate and in authorized denominations
for an equal aggregate principal amount; provided, that such Certificate being
transferred shall be cancelled in accordance with Section 2.08 hereof
simultaneously with the issuance of the new Certificate.
Any Certificate or Certificates may be exchanged for a Certificate or
Certificates of the same Series and Maturity and interest rate but in other
authorized denominations, in an equal aggregate principal amount.
Certificates to be exchanged shall be surrendered at any office or agency to
be maintained by the Indenture Trustee for the purpose as provided in Section
3.02 hereof, and the Owner Trustee shall execute and the Indenture Trustee
shall authenticate and deliver in exchange therefor the Certificate or
Certificates which the Holder making the exchange shall be entitled to
receive, bearing numbers not contemporaneously or previously outstanding.
All Certificates presented for registration of transfer, exchange,
prepayment or payment shall (if so required by the Owner Trustee or the
Indenture Trustee) be duly endorsed by, or be accompanied by a written
instrument or instruments of transfer in form satisfactory to the Owner
Trustee and the Indenture Trustee duly executed by the Holder or its attorney
duly authorized in writing and the Indenture Trustee may require evidence
satisfactory to it as to the compliance of any such transfer with the
Securities Act.
The Indenture Trustee may require payment from the Holder of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any exchange or registration of transfer of Certificates. No
service charge shall be levied for any such transaction.
The Indenture Trustee shall not be required to exchange or register a
transfer of any Certificates (a) for a period of fifteen (15) days immediately
preceding the first mailing of notice of prepayment of such Certificates or
(b) with respect to which notice of prepayment has been given pursuant to
Section 6.03 hereof and such notice has not been revoked.
All Certificates issued upon any transfer or exchange of Certificates
shall be valid obligations of the Owner Trustee, evidencing the same debt, and
entitled to the same security and benefits under this Indenture, as the
Certificates surrendered upon such transfer or exchange.
Section 2.07. Mutilated, Defaced, Destroyed, Lost and Stolen
Certificates. In case any temporary or definitive Certificate shall become
mutilated, defaced or be apparently destroyed, lost or stolen, the Owner
Trustee in its discretion may execute, and upon the oral or written request of
any officer of SSB, the Indenture Trustee shall authenticate and deliver, a
new Certificate of like Maturity, principal amount and interest rate as the
Certificate being replaced, bearing a number not contemporaneously or
previously outstanding, in exchange and substitution for the mutilated or
defaced Certificate, or in lieu of and substitution for the Certificate so
apparently destroyed, lost or stolen. In the case of any Certificate so
apparently destroyed, lost or stolen, the applicant for a substitute
Certificate shall furnish to the Owner Trustee and to the Indenture Trustee
such security or indemnity as may be required by them to indemnify and defend
and to hold each of them harmless and evidence to their satisfaction of the
apparent destruction, loss or theft of such Certificate and of the ownership
thereof.
Upon the issuance of any substitute Certificate, the Owner Trustee or
the Indenture Trustee may require payment from the Holder of a sum sufficient
to cover any tax or other governmental charge that may be imposed in relation
thereto and any other reasonable expenses incurred in connection therewith.
In case any Certificate which has matured or is about to mature, or has been
called for prepayment in full, shall become mutilated or defaced or be
apparently destroyed, lost or stolen, the Owner Trustee may, instead of
issuing a substitute Certificate, pay or authorize the payment of the same
(without surrender thereof except in the case of a mutilated or defaced
Certificate), if the applicant of any Certificate so apparently destroyed,
lost or stolen, for such payment shall furnish to the Owner Trustee and to the
Indenture Trustee such security or indemnity as any of them may require to
hold each of them harmless and the applicant shall also furnish to the Owner
Trustee and the Indenture Trustee evidence to their satisfaction of the
apparent destruction, loss or theft of such Certificate and of the ownership
thereof.
Every substitute Certificate issued pursuant to the provisions of
this Section by virtue of the fact that any Certificate is apparently
destroyed, lost or stolen shall constitute an original additional contractual
obligation of the Owner Trustee, whether or not the apparently destroyed, lost
or stolen Certificate shall be enforceable at any time by anyone and shall be
entitled to all the security and benefits of (but shall be subject to all the
limitations of rights set forth in) this Indenture equally and proportionately
with any and all other Certificates duly authenticated and delivered
hereunder. All Certificates shall be held and owned upon the express
condition that, to the extent permitted by law, the foregoing provisions are
exclusive with respect to the replacement or payment of mutilated, defaced, or
apparently destroyed, lost or stolen Certificates and shall preclude any and
all other rights or remedies notwithstanding any law or statute existing or
hereafter enacted to the contrary with respect to the replacement or payment
of negotiable instruments or other securities without their surrender.
Section 2.08. Cancellation of Certificates; Destruction Thereof. All
Certificates surrendered for payment, prepayment, registration of transfer or
exchange, if surrendered to the Owner Trustee or any agent of the Owner
Trustee or the Indenture Trustee, shall be delivered to the Indenture Trustee
for cancellation or, if surrendered to the Indenture Trustee, shall be
cancelled by it; and no Certificates shall be issued in lieu thereof except as
expressly permitted by any of the provisions of this Indenture. The Indenture
Trustee shall destroy cancelled Certificates held by it and deliver a
certificate of destruction to the Owner Trustee. If the Owner Trustee shall
acquire any of the Certificates, such acquisition shall not operate as a
prepayment or satisfaction of the indebtedness represented by such
Certificates unless and until the same are delivered to the Indenture Trustee
for cancellation.
Section 2.09. Temporary Certificates. Pending the preparation of
definitive Certificates, the Owner Trustee may execute and, upon the oral or
written request of an officer of SSB, the Indenture Trustee shall authenticate
and deliver temporary Certificates (printed, lithographed, typewritten or
otherwise reproduced, in each case in form satisfactory to the Indenture
Trustee). Temporary Certificates shall be issuable as registered Certificates
without coupons, of any authorized denomination, and substantially in the form
of the definitive Certificates but with such omissions, insertions and
variations as may be appropriate for temporary Certificates, all as may be
determined by the Owner Trustee with the concurrence of the Indenture Trustee.
Temporary Certificates may contain such reference to any provisions of this
Indenture as may be appropriate. Every temporary Certificate shall be
executed by the Owner Trustee and, upon the oral or written request of an
authorized officer of the Owner Trustee, be authenticated by the Indenture
Trustee upon the same conditions and in substantially the same manner, and
with like effect, as the definitive Certificates. Without unreasonable delay
the Owner Trustee shall execute and shall furnish definitive Certificates and
thereupon temporary Certificates shall be surrendered in exchange therefor
without charge at any office or agency to be maintained by the Indenture
Trustee for the purpose pursuant to Section 3.02 hereof, and, upon the oral
or written request of an authorized officer of the Owner Trustee, the
Indenture Trustee shall authenticate and deliver in exchange for such
temporary Certificates an equal aggregate principal amount of definitive
Certificates of the same Series and Maturities and interest rates and in
authorized denominations. Until so exchanged, temporary Certificates shall be
entitled to the same security and benefits under this Indenture as definitive
Certificates.
Section 2.10. Termination of Interest in Trust Indenture Estate. A
Holder shall not, as such, have any further interest in, or other right with
respect to, the Trust Indenture Estate when and if the principal amount of and
Make-Whole Premium, if any, and interest on and other amounts due under all
Certificates held by such Holder and all other sums payable to such Holder
hereunder and under the other Operative Agreements shall have been paid in
full.
Section 2.11. Certificates in Respect of Replacement Airframe. Upon
the execution and delivery of an Indenture and Security Agreement Supplement
covering a Replacement Airframe and/or Replacement Engine, as provided in
Section 9.09 hereof, each Certificate shall be deemed to have been issued in
connection with such Replacement Airframe and/or Replacement Engine and each
Certificate issued thereafter upon a transfer or exchange of, or as a
replacement for, a Certificate, shall be designated as having been issued in
connection with such Replacement Airframe and/or Replacement Engine, but
without any other change therein except as provided for in this Article II.
Section 2.12. Assumption of Obligations Under Certificates and Other
Operative Agreements. If, in accordance with and subject to the satisfaction
of the conditions set forth in Section 7.11 of the Participation Agreement,
the Lessee shall assume all of the obligations of the Owner Trustee hereunder,
under the Certificates and all other Operative Agreements, the Owner
Participant and the Owner Trustee shall be released and discharged from any
further obligations hereunder and under the
Certificates and all other Operative Agreements (except any obligations that
have accrued prior to such assumption).
Section 2.13. Establishment of Collateral Account. (a) The
Indenture Trustee shall, pursuant to the Collateral Account Control Agreement,
establish, or cause to be established, with State Street Bank and Trust
Company, who shall represent and warrant that it is a financial intermediary
(as defined in Section 8-313(4) of the Connecticut Uniform Commercial Code),
in its name as secured party hereunder an Eligible Deposit Account entitled
"First Security Bank, National Association, as secured party under the Trust
Indenture and Security Agreement (Federal Express Corporation Trust No.
N584FE) dated as of May 1, 1997, with the Owner Trustee referred to therein".
(b) If at any time the Collateral Account ceases to be an Eligible
Deposit Account, the Indenture Trustee shall within two (2) Business Days,
establish a new Collateral Account meeting the conditions specified in the
definition of Eligible Deposit Account, and shall transfer any cash or any
investments in the Collateral Account to such new Collateral Account.
(c) The Indenture Trustee shall have exclusive dominion and control
of the Collateral Account and all funds therein, and shall make withdrawals
from the Collateral Account only in accordance with this Indenture.
(d) The Collateral Account Control Agreement shall require State
Street Bank and Trust Company to send confirmation to the Indenture Trustee
and the Lessee that it has credited the Specified Investments to the
Collateral Account and to make appropriate entries on its books identifying
the Specified Investments as pledged to the Indenture Trustee.
Section 2.14. Investment of Funds on Deposit in the Collateral
Account. (a) Funds deposited in the Collateral Account shall be invested and
reinvested by the Indenture Trustee, subject to Section 17.02 of the
Participation Agreement, at the risk of the Owner Trustee, in Specified
Investments selected by the Lessee and approved by the Indenture Trustee for
the account of the Owner Trustee in accordance with Section 2.14(b) below;
provided, however, that if Specified Investments meeting the requirements of
Section 2.14(b) are not available on any day on which funds are to be invested
as contemplated by the preceding provisions of this Section 2.14(a), the
Indenture Trustee may leave such funds in the Collateral Account uninvested
until the earliest of (i) the date on which an appropriate Specified
Investment becomes available, (ii) the Delivery Date and (iii) the Cut-Off
Date. The Indenture Trustee shall maintain possession of the negotiable
instruments or securities, if any, evidencing such Specified Investments and,
in the case of any Specified Investments in book-entry form, such Specified
Investments shall be credited to an account of the Indenture Trustee or a
financial intermediary with the applicable Federal Reserve Bank; provided,
however, if the account is credited to the financial intermediary, the
financial intermediary shall make written confirmation thereof to the
Indenture Trustee and make an appropriate entry on its books identifying the
Specified Investments as pledged to the Indenture Trustee. All proceeds of
and any income, interest and other payments and distributions on or with
respect to any Specified Investments shall be deposited in or credited to the
Collateral Account and thereafter shall be held, invested and applied by the
Indenture Trustee in accordance with this Indenture. The Indenture Trustee
shall promptly notify the Owner Trustee and the Lessee of any Losses.
(b) On the Certificate Closing Date, the Indenture Trustee shall
invest the amount deposited in the Collateral Account pursuant to Section
2.01(c) of the Participation Agreement in Specified Investments selected by
the Lessee and approved by the Indenture Trustee for the account of the Owner
Trustee which mature on or prior to Lanuary 20, 1998. If the Delivery Date
is postponed pursuant to Section 3.02(b) or Section 3.03 of the Participation
Agreement, the proceeds of the Specified Investments referred to in the
preceding sentence may be invested in Specified Investments which mature
within 14 days after the rescheduled Delivery Date. If no Delivery Date
occurs, then any Specified Investment shall mature no later than the 15th day
after the Cut-Off Date.
(c) If for any reason the Indenture Trustee shall be required to
make any distributions of the Liquid Collateral prior to the maturity date of
any Specified Investment, the Indenture Trustee shall cause the same to be
sold in accordance with standard commercial practices, and the Lessee, for the
account of the Owner Trustee, shall forthwith compensate the Indenture Trustee
for any Losses as provided in Section 17.02(a) of the Participation Agreement.
(d) Pursuant to Section 17.02(b) of the Participation Agreement,
interest payable on the Certificates during the period in which funds are on
deposit in the Collateral Account shall be paid by the Lessee.
Section 2.15. Release of Debt Portion and Lien on the Collateral
Account and the Liquid Collateral on Delivery Date. (a) Subject to the
satisfaction or waiver of the conditions precedent to the Indenture Trustee's
obligations set forth in Section 4.02 of the Participation Agreement, on the
Delivery Date, subject to the proviso to Section 3.02(a) of the Participation
Agreement, the Indenture Trustee shall release from the Collateral Account an
amount of Liquid Collateral, equal to the lesser of (A) the Debt Portion and
(B) the amount actually in the Collateral Account on the Delivery Date.
Subject to the proviso to Section 3.02(a) of the Participation Agreement, such
amount so released, together with the amount of any Losses received from the
Lessee pursuant to Section 17.02(a) of the Participation Agreement, shall be
used to finance a portion of the Purchase Price as contemplated by Section
3.02(a) of the Participation Agreement. Any amount remaining in the
Collateral Account after such release (net of any uncompensated Losses) shall
be remitted by the Indenture Trustee on behalf of the Owner Trustee to the
Lessee pursuant to Section 3.02(a)(B) of the Participation Agreement.
(b) The Lien of this Indenture on the Collateral Account and the
Liquid Collateral shall terminate on the Delivery Date following the transfer
of amounts described in Section 3.02(a) of the Participation Agreement.
Section 2.16. Cut-Off Date. In the case of a prepayment under
Section 6.02(a)(vi) hereof, the Indenture Trustee shall release from the
Collateral Account all amounts held in the Collateral Account on such date.
Such amount so released, together with the amount of any Losses received from
the Lessee pursuant to Sections 17.02(a) and 17.02(c) of the Participation
Agreement, shall be applied to pay amounts due under Section 6.02(b)(1) hereof
on the 15th day following the Cut-Off Date, and any amount (net of any
uncompensated Losses) remaining after such release and application shall be
remitted by the Indenture Trustee, on behalf of the Owner Trustee, to the
Lessee.
Section 2.17. Subordination. (a) The Owner Trustee and, by
acceptance of its Certificates of any Series, each Holder of such Series,
hereby agree that no payment or distribution shall be made on or in respect of
the Secured Obligations owed to such Certificate Holder of such Series,
including any payment or distribution of cash, property or securities after
the commencement of a proceeding of the type referred to in clause (v), (vi)
or (vii) of Section 7.01 hereof, except as expressly provided in Article V
hereof.
(b) By the acceptance of its Certificates of any Series
(other than Series A), each Holder of such Series agrees that in the event
that such Holder, in its capacity as a Holder, shall receive any payment or
distribution on any Secured Obligations in respect of such Series which it is
not entitled to received under this Section 2.17 or Article V hereof, it will
hold any amount so received in trust for the Senior Holder (as defined in
Section 2.17(c) hereof) and will forthwith turn over such payment to the
Indenture Trustee in the form received to be applied as provided in Article V
hereof.
(c) As used in this Section 2.17, the term "Senior Holder"
shall mean, (i) the Holders of Series A Certificates until the Secured
Obligations in respect of Series A Certificates have been paid in full, (ii)
after the Secured Obligations in respect of Series A Certificates have been
paid in full, the Holders of Series B Certificates until the Secured
Obligations in respect of Series B Certificates have been paid in full and
(iii) after the Secured Obligations in respect of Series B Certificates have
been paid in full, the Holders of Series C Certificates until the Secured
Obligations in respect of Series C Certificates have been paid in full.
Section 2.18. Reoptimization. The Owner Trustee shall have the
right, on the Reoptimization Date, to modify the schedule of principal
payments of the Certificates subject to the terms and conditions set forth in
Section 2.03(b) of the Participation Agreement. To give effect to the
foregoing the Indenture Trustee shall execute an amendment to this Indenture
which shall amend Section 6.06 hereof to set forth the new schedule of
principal payments and Schedule I to each Certificate shall be amended
accordingly. The Indenture Trustee shall deliver such amendments to the
Subordination Agent on behalf of the Pass Through Trustee for each of the Pass
Through Trusts. To the extent that such amendment of this Indenture occurs
later than the Delivery Date, this Indenture, as amended, shall, if required,
be duly filed for recordation with the Aeronautics Authority.
ARTICLE III
COVENANTS
Section 3.01. Payment of Principal, Make-Whole Premium and Interest.
The Owner Trustee covenants and agrees that it will, subject to Section 2.05
hereof, duly and punctually pay or cause to be paid the principal of, and
interest and Make-Whole Premium, if any, and all other amounts due on, each of
the Certificates and under this Indenture at the place or places, at the
respective times and in the manner provided in this Indenture and in the
Certificates.
Principal and interest and other amounts due hereunder or under the
Certificates shall be payable in dollars on the due date thereof, to the
Indenture Trustee at the Corporate Trust Department (or such other account at
such other financial institution as the Indenture Trustee may designate for
the purpose). If any amount payable under the Certificates or under this
Indenture falls due on a day which is not a Business Day, then such sum shall
be payable on the next succeeding Business Day, without (provided that payment
is made on such next succeeding Business Day) additional interest thereon for
the period of such extension.
Section 3.02. Offices for Payments, etc. So long as any of the
Certificates remain outstanding, the Indenture Trustee will maintain the
following: (a) an office or agency where the Certificates may be presented
for payment and (b) a facility or agency in New York, New York where the
Certificates may be presented for registration of transfer and for exchange
and for prepayment as provided in this Indenture (the "Registrar"). The
Registrar shall keep a register (the "Register") with respect to the
Certificates and their transfer and exchange. The Indenture Trustee may
appoint one or more co-registrars ("Co-Registrars") for the Certificates and
may terminate any such appointment at any time upon written notice. The term
"Registrar" includes any Co-Registrar.
The Indenture Trustee shall initially act as Registrar.
Section 3.03. Appointment to Fill a Vacancy in Office of Indenture
Trustee. The Owner Trustee, whenever necessary to avoid or fill a vacancy in
the office of Indenture Trustee, will, with the consent of the Lessee,
appoint, in the manner provided in Section 12.02 hereof, an Indenture Trustee,
so that there shall at all times be an Indenture Trustee hereunder.
Section 3.04. Paying Agents. Whenever the Indenture Trustee in its
sole discretion shall appoint a paying agent (the "Paying Agent"), it will
cause the Paying Agent to execute and deliver an instrument in which the
Paying Agent shall agree with the Indenture Trustee, subject to the provisions
of this Section:
(a) that it will hold all sums received by it as such agent for the
payment of the principal of, and interest and Make-Whole Premium, if any,
on the Certificates (whether such sums have been paid to it by the
Indenture Trustee or the Owner Trustee) in trust for the benefit of the
Holders or of the Indenture Trustee, and
(b) that it will give the Indenture Trustee notice of any failure by
the Owner Trustee to make any payment of the principal of or interest or
Make-Whole Premium, if any, on the Certificates when the same shall be due
and payable.
Anything in this Section to the contrary notwithstanding, the
agreements to hold sums in trust as provided in this Section are subject to
the provisions of Sections 14.03 and 14.04 hereof.
Section 3.05. Covenants of SSB and the Owner Trustee.
(a) SSB hereby covenants and agrees to perform its covenants set
forth in Sections 7.04(b) and 7.04(c) of the Participation Agreement.
(b) The Owner Trustee hereby covenants and agrees as follows:
(i) in the event a Responsible Officer of the Owner Trustee shall have
actual knowledge of an Indenture Event of Default, an Indenture Default or
an Event of Loss, the Owner Trustee will give prompt written notice of such
Indenture Event of Default, Indenture Default or Event of Loss to the
Indenture Trustee, the Lessee and the Owner Participant;
(ii) the Owner Trustee will furnish to the Indenture Trustee,
promptly upon receipt thereof, duplicates or copies of all reports,
notices, requests, demands, certificates, financial statements and other
instruments furnished to the Owner Trustee under the Lease, including,
without limitation, a copy of each report or notice received pursuant to
Article 11 of the Lease, to the extent that the same shall not have been
furnished to the Indenture Trustee;
(iii) the Owner Trustee will not enter into any business or other
activity other than the business of owning the Aircraft, the leasing
thereof to the Lessee and the carrying out of the transactions contemplated
hereby and by the Lease, the Participation Agreement, the Trust Agreement
and the other Indenture Documents; and
(iv) except as contemplated by the Operative Agreements, the Owner
Trustee will not contract for, create, incur or assume any debt, and will
not guarantee (directly or indirectly or by an instrument having the effect
of assuring another's payment or performance on any obligation or
capability of so doing, or otherwise), endorse or otherwise take action to
become contingently liable, directly or indirectly, in connection with the
debt of any other Person.
Section 3.06. [Reserved]
Section 3.07. Disposal of Trust Indenture Estate. At any time and
from time to time any part of the Trust Indenture Estate may be sold or
disposed of in accordance with the provisions of this Indenture and the Lease.
The Indenture Trustee shall, from time to time, release any part of the Trust
Indenture Estate so sold or disposed of or as to which an Event of Loss has
occurred or as to which the Lease has been terminated from the Lien of this
Indenture. In addition, to the extent that such property constitutes an
Airframe or Engine, the further requirements of Section 9.08 hereof shall be
complied with.
Section 3.08. No Representations or Warranties as to Aircraft or
Documents. NONE OF THE INDENTURE TRUSTEE, THE OWNER TRUSTEE OR SSB MAKES OR
SHALL BE DEEMED TO HAVE MADE ANY REPRESENTATION OR WARRANTY, EXPRESS OR
IMPLIED, AS TO THE TITLE, AIRWORTHINESS, WORKMANSHIP, VALUE, CONDITION,
DESIGN, COMPLIANCE WITH SPECIFICATIONS, MERCHANTABILITY OR FITNESS FOR ANY
PARTICULAR USE OR PURPOSE OF THE AIRCRAFT OR ANY ENGINE, AS TO THE ABSENCE OF
ANY INFRINGEMENT OF ANY PATENT, TRADEMARK OR COPYRIGHT, AS TO THE ABSENCE OF
OBLIGATIONS BASED ON STRICT LIABILITY IN TORT OR ANY OTHER REPRESENTATION OR
WARRANTY WITH RESPECT TO THE AIRCRAFT OR ANY ENGINE WHATSOEVER, except that
SSB warrants that on the Delivery Date (a) the Owner Trustee shall have
received whatever title was conveyed to it by the Lessee, and (b) the Aircraft
shall be free and clear of Lessor's Liens attributable to SSB. Neither SSB
nor the Indenture Trustee makes or shall be deemed to have made any
representation or warranty as to the validity, legality or enforceability of
this Indenture, the Trust Agreement, the Certificates or any Indenture
Document or as to the correctness of any statement contained in any thereof,
except for the representations and warranties of SSB and the Indenture Trustee
made under this Indenture or in the Participation Agreement.
Section 3.09. Further Assurances; Financing Statements. At any time
and from time to time, upon the request of the Indenture Trustee or the
Lessee, the Owner Trustee shall promptly and duly execute and deliver any and
all such further instruments and documents as may be specified in such request
and as are necessary or advisable to perfect, preserve or protect the Liens
and assignments created or intended to be created hereby, or to obtain for the
Indenture Trustee the full benefit of the specific rights and powers granted
herein, including, without limitation, the execution and delivery of Uniform
Commercial Code financing statements and continuation statements with respect
thereto, or similar instruments relating to the perfection of the Liens or
assignments created or intended to be created hereby.
ARTICLE IV
HOLDER LISTS
Section 4.01. Holder Lists; Ownership of Certificates. (a) The
Indenture Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
the Holders. If the Indenture Trustee is not the Registrar, the Registrar
shall furnish to the Indenture Trustee semi-annually not more than ten (10)
days after each Record Date, as of such Record Date, or at such other times as
the Indenture Trustee may request in writing, a list, in such form and as of
such date as the Indenture Trustee may reasonably require, containing all the
information in the possession or control of the Registrar as to the names and
addresses of the Holders and the amounts and Maturities of the Certificates
held by such Holders.
(b) Ownership of the Certificates shall be proved by the Register
kept by the Registrar.
ARTICLE V
RECEIPT, DISTRIBUTION AND APPLICATION OF
INCOME FROM THE TRUST INDENTURE ESTATE
Section 5.01. Basic Rent Distribution. Except as otherwise provided
in Section 5.03 hereof, each installment of Basic Rent, any payment of
interest on overdue installments of Basic Rent, any payment received by the
Indenture Trustee pursuant to Section 8.03(a) hereof and any payment received
by the Indenture Trustee pursuant to Section 17.02(b) or 17.02(c) of the
Participation Agreement shall be promptly distributed in the following order
of priority:
first, (i) so much of such installment or payment as shall be
required to pay in full the aggregate amount of the payment or
payments of Principal Amount and interest and other amounts (as
well as any interest on any overdue Principal Amount and, to the
extent permitted by applicable law, on any overdue interest and
any other overdue amounts) then due under all Series A
Certificates shall be distributed to the Holders of Series A
Certificates ratably, without priority of one over the other, in
the proportion that the amount of such payment or payments then
due under each Series A Certificate bears to the aggregate amount
of the payments then due under all Series A Certificates;
(ii) after giving effect to paragraph (i) above, so much of
such installment or payment as shall be required to pay in full
the aggregate amount of the payment or payments of Principal
Amount and interest and other amounts (as well as any interest on
any overdue Principal Amount and, to the extent permitted by
applicable law, on any overdue interest and any other overdue
amounts) then due under all Series B Certificates shall be
distributed to the Holders of Series B Certificates ratably,
without priority of one over the other, in the proportion that the
amount of such payment or payments then due under each Series B
Certificate bears to the aggregate amount of the payments then due
under all Series B Certificates; and
(iii) after giving effect to paragraph (ii) above, so much of
such installment or payment as shall be required to pay in full
the aggregate amount of the payment or payments of Principal
Amount and interest and other amounts (as well as any interest on
any overdue Principal Amount and, to the extent permitted by
applicable law, on any overdue interest and any other overdue
amounts) then due under all Series C Certificates shall be
distributed to the Holders of Series C Certificates ratably,
without priority of one over the other, in the proportion that the
amount of such payment or payments then due under each Series C
Certificate bears to the aggregate amount of the payments then due
under all Series C Certificates; and
second, the balance if any of such installment or payment remaining
thereafter shall be distributed to the Owner Trustee, or as the
Owner Trustee may request, for distribution pursuant to the Trust
Agreement.
Section 5.02. Event of Loss and Replacement; Prepayment. (a)
Except as otherwise provided in Section 5.03 hereof, any payment received by
the Indenture Trustee as the result of an Event of Loss with respect to the
Aircraft (including pursuant to Section 11.03(e) of the Lease, but, in the
case of said Section 11.03(e), subject to the time limits specified therein)
or as the result of, or in connection with any event under the Lease giving
rise to, a prepayment pursuant to Section 6.02 hereof, shall be promptly
distributed by the Indenture Trustee in the following order of priority:
first, to reimburse the Indenture Trustee for any costs or expenses
reasonably incurred in connection with such prepayment,
second, (i) to pay the amounts specified in paragraph (i) of clause
"second" of Section 5.03 hereof then due and payable in respect
of the Series A Certificates;
(ii) after giving effect to paragraph (i) above, to pay the
amounts specified in paragraph (ii) of clause "second" of Section
5.03 hereof then due and payable in respect of the Series B
Certificates; and
(iii) after giving effect to paragraph (ii) above, to pay the
amounts specified in paragraph (iii) of clause "second" of
Section 5.03 hereof then due and payable in respect of the Series
C Certificates; and
provided that payments pursuant to this clause "second" shall be
made without the payment of Make-Whole Premium except in the
particular circumstances provided in Section 6.02(b) hereof; and
third, as provided in clause "third" of Section 5.03 hereof;
provided that if a Replacement Airframe shall be substituted for an Airframe
subject to an Event of Loss as provided in Section 11.03 of the Lease and
Section 9.08 hereof, any proceeds which result from such Event of Loss and are
paid to the Indenture Trustee shall be held by the Indenture Trustee as part
of the Trust Indenture Estate and, unless otherwise applied pursuant to
Section 5.01 or 5.03 hereof, such proceeds shall be released to the Lessee
upon the release of such damaged Airframe and the replacement thereof as
herein provided.
(b) Any amounts received directly or indirectly from any governmental
authority, insurer or other party pursuant to any provision of Article 11 or
13 of the Lease as the result of loss or damage not constituting an Event of
Loss (x) with respect to the Aircraft, or as a result of such loss or damage
constituting an Event of Loss if and to the extent that such amounts would at
the time be required to be paid to the Lessee pursuant to said Article 11 or
13 but for the fact that an Event of Default shall have occurred and be
continuing or (y) are pledged to the Lessor as security in connection with an
Event of Loss in accordance with Section 11.03(e) of the Lease, shall be held
by the Indenture Trustee as security for the obligations of the Lessee under
the Lease and the Participation Agreement and shall be invested in accordance
with the terms of Section 5.08 hereof and at such time as the conditions for
payment to the Lessee specified in said Article 11 or 13, as the case may be,
shall be fulfilled and there shall not be continuing any Event of Default,
such amount, and the proceeds of any investment thereof, shall, to the extent
not theretofore applied, be paid to the Lessee to the extent provided in the
Lease.
Section 5.03. Payment After Indenture Event of Default, etc. Except
as otherwise provided in Sections 5.02(b), 5.04(b), 5.04(c) and 5.05 hereof,
all payments (other than Excepted Payments) received and all amounts held or
realized by the Indenture Trustee (a) after an Indenture Event of Default
shall have occurred and so long as such an Indenture Event of Default shall be
continuing, and after the Indenture Trustee has received a request to
accelerate the Certificates in accordance with Section 7.10 hereof, or (b)
after the Certificates shall have become due and payable as provided in
Section 7.02(b) or (c) hereof, shall be promptly distributed by the Indenture
Trustee in the following order of priority:
first, so much of such payments or amounts as shall be required to
reimburse the Indenture Trustee for any tax, expense, charge or
other loss (including, without limitation, all amounts to be
expended at the expense of, or charged upon the tolls, rents,
revenues, issues, products and profits of, the property included
in the Trust Indenture Estate pursuant to Section 7.03(b) hereof)
incurred by the Indenture Trustee (to the extent not previously
reimbursed) (including, without limitation, the expenses of any
sale, taking or other proceeding, attorneys' fees and expenses,
court costs, and any other expenditures incurred or expenditures
or advances made by the Indenture Trustee or the Holders in the
protection, exercise or enforcement of any right, power or remedy
or any damages sustained by the Indenture Trustee or the Holders,
liquidated or otherwise, upon such Indenture Event of Default)
shall be applied by the Indenture Trustee as between itself and
the Holders in reimbursement of such expenses;
second, (i) so much of such payments or amounts remaining as shall be
required to pay in full the aggregate unpaid Principal Amount of
all Series A Certificates, and the accrued but unpaid interest
and other amounts due thereon and all other Secured Obligations
(other than Make-Whole Premium) in respect of the Series A
Certificates to the date of distribution, shall be distributed to
the Holders of Series A Certificates, and in case the aggregate
amount so to be distributed shall be insufficient to pay in full
as aforesaid, then ratably, without priority of one over the
other, in the proportion that the aggregate unpaid Principal
Amount of all Series A Certificates held by each holder plus the
accrued but unpaid interest and other amounts due hereunder or
thereunder (other than Make-Whole Premium) to the date of
distribution, bears to the aggregate unpaid Principal Amount of
all Series A Certificates held by all such holders plus the
accrued but unpaid interest and other amounts due thereon (other
than Make-Whole Premium) to the date of distribution;
(ii) after giving effect to paragraph (i) above, so much of
such payments or amounts remaining as shall be required to pay in
full the aggregate unpaid Principal Amount of all Series B
Certificates, and the accrued but unpaid interest and other
amounts due thereon and all other Secured Obligations (other than
Make-Whole Premium) in respect of the Series B Certificates to
the date of distribution, shall be distributed to the Holders of
Series B Certificates, and in case the aggregate amount so to be
distributed shall be insufficient to pay in full as aforesaid,
then ratably, without priority of one over the other, in the
proportion that the aggregate unpaid Principal Amount of all
Series B Certificates held by each holder plus the accrued but
unpaid interest and other amounts due hereunder or thereunder
(other than Make-Whole Premium) to the date of distribution,
bears to the aggregate unpaid Principal Amount of all Series B
Certificates held by all such holders plus the accrued but unpaid
interest and other amounts due thereon (other than Make-Whole
Premium) to the date of distribution; and
(iii) after giving effect to paragraph (ii) above, so much of
such payments or amounts remaining as shall be required to pay in
full the aggregate unpaid Principal Amount of all Series C
Certificates, and the accrued but unpaid interest and other
amounts due thereon and all other Secured Obligations (other than
Make-Whole Premium) in respect of the Series C Certificates to
the date of distribution, shall be distributed to the Holders of
Series C Certificates, and in case the aggregate amount so to be
distributed shall be insufficient to pay in full as aforesaid,
then ratably, without priority of one over the other, in the
proportion that the aggregate unpaid Principal Amount of all
Series C Certificates held by each holder plus the accrued but
unpaid interest and other amounts due hereunder or thereunder
(other than Make-Whole Premium) to the date of distribution,
bears to the aggregate unpaid Principal Amount of all Series C
Certificates held by all such holders plus the accrued but unpaid
interest and other amounts due thereon (other than Make-Whole
Premium) to the date of distribution;
(it being understood that amounts payable under this clause
"second" shall not include Make-Whole Premium); and
third, the balance, if any of such payments or amounts remaining
thereafter shall be distributed to the Owner Trustee for
distribution pursuant to the Trust Agreement.
Section 5.04. Certain Payments. (a) Except as otherwise provided
in this Indenture, any payments received by the Indenture Trustee which are to
be applied according to any provision in any other Indenture Document shall be
applied thereunder in accordance therewith.
(b) The Indenture Trustee will distribute, promptly upon receipt, any
indemnity or other payment received by it from the Owner Trustee or the Lessee
in respect of (i) the Indenture Trustee in its individual capacity, (ii) the
Subordination Agent, (iii) each Liquidity Provider, and (iv) the Pass Through
Trustee, in each case whether pursuant to Article 8 or 9 of the Participation
Agreement or as Supplemental Rent, directly to the Person (which may include
the Indenture Trustee) entitled thereto. Any payment received by the
Indenture Trustee under clause (b) of the last paragraph of Section 2.04 shall
be distributed to the Subordination Agent to be distributed in accordance with
the terms of the Intercreditor Agreement.
(c) Notwithstanding anything to the contrary contained herein, any
sums received by the Indenture Trustee which constitute Excepted Payments
shall be distributed promptly upon receipt by the Indenture Trustee directly
to the Person or Persons entitled thereto.
Section 5.05. Other Payments. Any payments received by the Indenture
Trustee for which no provision as to the application thereof is made elsewhere
in this Indenture or in any other Indenture Document (including without
limitation Article 9 of the Lease) shall be distributed by the Indenture
Trustee (a) to the extent received or realized at any time prior to the
payment in full of all obligations to the Holders, in the order of priority
specified in Section 5.01 hereof, and (b) to the extent received or realized
at any time after payment in full of all obligations to the Holders, in the
following order of priority: first, in the manner provided in clause "first"
of Section 5.03 hereof and second, in the manner provided in clause "third" of
Section 5.03 hereof.
Section 5.06. Payments to Owner Trustee. Any amounts distributed
hereunder by the Indenture Trustee to the Owner Trustee shall be paid to the
Owner Trustee by wire transfer of immediately available funds of the type
received by the Indenture Trustee at such office and to such account or
accounts of such entity or entities as shall be designated by notice from the
Owner Trustee to the Indenture Trustee from time to time. The Owner Trustee
hereby notifies the Indenture Trustee that unless and until the Indenture
Trustee receives notice to the contrary from the Owner Trustee, all amounts to
be distributed to the Owner Trustee hereunder for distribution in accordance
with the Trust Agreement shall be distributed by wire transfer of immediately
available funds of the type received by the Indenture Trustee to such account
of the Owner Participant as may be specified pursuant to Section 2.06 of the
Trust Agreement.
Section 5.07. Application of Payments. Each payment of principal of
and interest or other amounts due on each Certificate shall, except as
otherwise provided herein, be applied, first, to the payment of interest on
such Certificate due and payable to the date of such payment, as provided in
such Certificate, as well as any interest on overdue principal and Make-Whole
Premium, if any, and, to the extent permitted by law, interest and other
amounts due thereunder, second, to the payment of any other amount (other than
the principal of such Certificate) due hereunder to the Holder of such
Certificate or under such Certificate, third, to the payment of the principal
of such Certificate if then due hereunder or under such Certificate and
fourth, the balance, if any remaining thereafter, to the payment of the
principal of such Certificate remaining unpaid (provided that such Certificate
shall not be subject to prepayment without the consent of the affected Holder
except as permitted by Sections 6.02, 6.06 and 8.02 hereof); provided that,
solely for the purpose of determining whether an Indenture Event of Default
shall have occurred and be continuing, each such payment shall be deemed
applied in the following order of priority: first, in the manner provided in
clause "first" above, second, in the manner provided in clause "third" above,
third, in the manner provided in clause "second" above and fourth, in the
manner provided in clause "fourth" above.
Section 5.08. Investment of Amounts Held by Indenture Trustee.
Amounts held by the Indenture Trustee pursuant to Section 5.02(b) hereof or
pursuant to any provision of any Indenture Document providing for investment
by the Indenture Trustee of sums pursuant to Section 23.01 of the Lease or
this Section 5.08 shall be invested by the Indenture Trustee from time to time
in securities selected by (i) so long as no Event of Default shall have
occurred and be continuing, the Lessee (and in the absence of written
direction by the Lessee, the Indenture Trustee shall invest such monies in
direct obligations of the United States of America) or (ii) so long as an
Event of Default shall have occurred and be continuing, the Indenture Trustee
and in each case shall be of the type listed in clauses (i) through (iv) of
Section 23.01 of the Lease. Unless otherwise expressly provided in this
Indenture, any income realized as a result of any such investment, net of the
Indenture Trustee's reasonable fees and expenses in making such investment,
shall be held and applied by the Indenture Trustee in the same manner as the
principal amount of such investment is to be applied and any losses, net of
earnings and such reasonable fees and expenses, shall be charged against the
principal amount invested. The Lessee shall be responsible for and will
promptly pay to the Indenture Trustee or the Lessor, as the case may be, on
demand, the amount of any loss realized as the result of any such investment
(together with any fees, commissions and other costs and expenses, if any,
incurred by the Indenture Trustee or the Lessor in connection with such
investment), such amount to be disposed of in accordance with the terms hereof
or the Lease, as the case may be. The Indenture Trustee shall not be liable
for any loss resulting from any investment made by it or any investment sold
by it under this Indenture in accordance with instructions from the Lessee
other than by reason of its willful misconduct or gross negligence, and any
such investment may be sold (without regard to its maturity) by the Indenture
Trustee without instructions whenever the Indenture Trustee reasonably
believes such sale is necessary to make a distribution required by this
Indenture.
Unless otherwise confirmed in writing, an account statement delivered
by the Indenture Trustee to the Owner Trustee (with a copy to the Lessee)
shall be deemed written confirmation by the Owner Trustee that the investment
transactions identified therein accurately reflect the investment directions
given to the Indenture Trustee by or on behalf of the Lessee, unless the
Lessee notifies the Indenture Trustee in writing to the contrary within 30
days of the date of receipt of such statement.
Section 5.09. Withholding Taxes. The Indenture Trustee shall
withhold any Taxes required to be withheld, except to the extent that the
Holder has furnished evidence satisfactory to the Indenture Trustee of any
exemption from withholding claimed by such Holder and under no circumstances
shall the failure of any such Holder to receive any amounts so withheld
constitute an Indenture Event of Default. Notwithstanding any provision to
the contrary in Sections 5.01 through 5.05 hereof and subject to Article 8 of
the Participation Agreement, if the Lessee is required to pay any such Tax, or
any interest or penalty thereon, or to indemnify the Owner Participant or the
Owner Trustee with respect thereto pursuant to Section 8.01(c) of the
Participation Agreement, the Lessee shall be entitled to receive any payments
otherwise distributable to the Holder of any Certificate who was subject to
such Tax pursuant to Sections 5.01 to 5.05 hereof until the foregoing amounts
shall have been recovered in full by the Lessee.
ARTICLE VI
PREPAYMENT OF CERTIFICATES
Section 6.01. No Prepayment Prior to Maturity. Except as provided
in Sections 6.02, 6.06 and 8.02 hereof, the Certificates may not be prepaid
prior to their respective Maturities.
Section 6.02. Prepayment of Certificates. (a) The Outstanding
Certificates shall be prepaid in full (and not in part except under clause
(vii) below):
(i) If an Event of Loss occurs with respect to the Airframe or with
respect to the Airframe and the Engines or engines then installed on the
Airframe (unless pursuant to Section 11.03 of the Lease and Section 9.08
hereof replacement equipment is substituted therefor).
(ii) If the Lessee, pursuant to Section 4.02(a) of the Lease, gives
notice of purchase of the Aircraft.
(iii) If any Owner Participant or the Owner Trustee on behalf of any
Owner Participant gives notice of prepayment to the Indenture Trustee
pursuant to Section 8.02 hereof.
(iv) If the Lessee, pursuant to Section 10.01 of the Lease, gives
notice of a voluntary termination for obsolescence or surplus, but subject
to Section 6.02(c) below.
(v) At the option of the Owner Trustee with the prior written consent
of the Lessee upon not less than 25 days' prior written notice.
(vi) As contemplated by Section 2.16 hereof and Section 3.03(b) of the
Participation Agreement if the Delivery Date has not occurred on or prior
to the Cut-Off Date.
(vii) With respect to the Series C Certificates only, as provided in
Section 2.03(b) of the Participation Agreement.
(viii) Pursuant to Section 15.01 of the Participation Agreement in
connection with a Refinancing of the Certificates.
(b) In the event of a prepayment of the Certificates pursuant to
Sections 6.02(a)(ii), (iv) and (viii) above, the Owner Trustee, having
received notice from the Lessee in accordance with and subject to the terms of
Section 4.02(a) or 10.01 of the Lease or Article 15 of the Participation
Agreement, as the case may be, shall give irrevocable (subject to Section
6.02(c) hereof) written notice to the Indenture Trustee and to the Holders of
all of the Certificates specifying the Business Day on which the Certificates
shall be prepaid. In the case of a prepayment of the Certificates pursuant
to Section 6.02(a)(i) above, the Certificates shall be prepaid in full on the
Loss Payment Date as defined in Section 11.02 of the Lease. In the case of a
prepayment of the Certificates pursuant to Section 6.02(a)(iii) above, the
Certificates shall be prepaid in full on the date so designated in the notice
referred to in Section 8.02 hereof. In the case of a prepayment of the
Certificates pursuant to Section 6.02(a)(ii) or (iv) above, the Certificates
shall be prepaid in full on the Termination Date. In the case of a prepayment
of the Certificates pursuant to Section 6.02(a)(v) above, the Certificates
shall be prepaid on the 25th date following the notice referred to therein.
In the case of a prepayment of the Certificates pursuant to Section
6.02(a)(vi) above, the Certificates shall be prepaid on the 15th day following
the Cut-Off Date. In the case of a prepayment of the Series C Certificates
pursuant to Section 6.02(a)(vii) above, the amount of such Series C
Certificates to be prepaid shall be prepaid on the Reoptimization Date. In
the case of a prepayment pursuant to Section 6.02(a)(viii) above, the
Certificates shall be prepaid on the effective date of the Refinancing. The
day on which the Certificates are to be prepaid pursuant to this Section
6.01(b) is herein referred to as the "Prepayment Date".
On or prior to the Prepayment Date, immediately available funds shall
be deposited with the Indenture Trustee in an amount in respect of the
Certificates equal to:
(1) (i) if such prepayment is made under any provision of Section 6.02
hereof on or after the applicable Premium Termination Date, or (ii) if such
prepayment is made prior to the applicable Premium Termination Date
pursuant to Section 6.02(a)(i) or 6.02(a)(iii) above (if clause (i) of the
first sentence of Section 8.02(a) hereof is applicable), 6.02(a)(vi) or
6.02(a)(vii) above, the sum of (A) the aggregate principal amount of such
Certificates then Outstanding, (B) accrued interest on the Certificates to
the Prepayment Date and (C) all other aggregate sums due the Indenture
Trustee hereunder or under the Participation Agreement or the Lease, but
excluding any Make-Whole Premium or other premium or penalty, or
(2) if such prepayment is made prior to the applicable Premium
Termination Date pursuant to Section 6.02(a)(ii), 6.02(a)(iii) (if clause
(ii) of the first sentence of Section 8.02(a) hereof is applicable),
6.02(a)(iv), 6.02(a)(v) or 6.02(a)(viii) above, the sum of the amounts
specified in clauses (A), (B) and (C) of the preceding clause (1) plus any
Make-Whole Premium payable in respect of all Certificates with respect to
which the Premium Termination Date therefor has not occurred
(the aggregate amount required to be paid pursuant to this sentence being
herein referred to as the "Prepayment Price").
(c) If, pursuant to the last paragraph of Section 10.01(f) of the
Lease, no Termination Date shall occur, or if, pursuant to Section 4.02(a) of
the Lease, the Lessee revokes its notice of election to purchase, the Lessee
shall give notice thereof to the Indenture Trustee, and the prepayment
proposed to be effected in respect thereof shall not occur.
Section 6.03. Notice of Prepayment to Holders. In order to effect
any prepayment set forth in Section 6.02(a) hereof, the Indenture Trustee
shall give prompt notice by first class mail of prepayment to each Holder of
an Outstanding Certificate. Any notice of prepayment given by the Owner
Trustee may be revoked by the Owner Trustee at any time on or before the
Prepayment Date by prompt notice to the Holders except as otherwise provided
in the Lease or the Participation Agreement.
All notices of prepayment shall state:
(1) the Prepayment Date,
(2) the applicable basis for determining the Prepayment Price,
(3) that on the Prepayment Date, subject to the provisions hereof,
the Prepayment Price will become due and payable, and that interest
on the Certificates shall cease to accrue on and after such
Prepayment Date, and
(4) the place or places where such Certificates are to be
surrendered for payment.
Section 6.04. Deposit of Prepayment Price and Sinking Fund Redemption
Price. On the Prepayment Date or the Sinking Fund Redemption Date (as defined
in Section 6.06 hereof), the Owner Trustee shall, to the extent an amount
equal to the Prepayment Price or the Sinking Fund Redemption Price (as defined
in Section 6.06 hereof), as the case may be, shall not then be held in cash or
Permitted Investments (marked-to-market net of all costs and expenses of
liquidation thereof) by the Indenture Trustee in immediately available funds
and deposited for the purpose, pay to the Indenture Trustee an amount equal to
the difference between (a) the amount then so held and (b) the Prepayment
Price or the Sinking Fund Redemption Price, as the case may be. If there
shall so be on deposit and/or deposited the applicable Prepayment Price or
Sinking Fund Redemption Price on or prior to a Prepayment Date or Sinking Fund
Redemption Date, interest shall cease to accrue in respect of all or, in the
case of a mandatory sinking fund redemption, the relevant portion being
prepaid of, the Outstanding Certificates on and after such Prepayment Date or
such Sinking Fund Redemption Date.
Section 6.05. Certificates Payable on Prepayment Date. On the
Prepayment Date, the Outstanding Certificates shall (except (A) if the Owner
Trustee has requested the Indenture Trustee to revoke such notice of
prepayment in accordance with Section 6.03 hereof or (B) as otherwise provided
in the Lease) become due and payable and from and after such Prepayment Date
(unless there shall be a default in the payment of the Prepayment Price) such
Certificates shall cease to bear interest. Upon surrender by any Holder of
its Certificate for prepayment in accordance with said notice, such Holder
shall be paid the principal amount of its Certificate then outstanding, accrued
interest thereon to the Prepayment Date, all other sums due to such Holder
hereunder, under the Participation Agreement or the Lease, plus, if a
Make-Whole Premium is payable pursuant to Section 6.02(b) hereof, the
Make-Whole Premium in respect of such Certificate.
If any Certificate called for prepayment shall not be so paid upon
surrender thereof for prepayment, the principal shall, until paid, continue to
bear interest from the Prepayment Date at the interest rate applicable to such
Certificate.
Section 6.06. Mandatory Sinking Fund Redemption. The Certificates
shall be subject to partial redemption, at the aggregate principal amount set
forth for the Certificates of the respective Series and Maturity, on a pro
rata basis, on each date specified in this Section (a "Sinking Fund Redemption
Date") for such payment on the Certificates of such Series and Maturity. The
Owner Trustee shall deposit funds sufficient to pay the Sinking Fund
Redemption Price with the Indenture Trustee as provided in Section 6.04
hereof. The Indenture Trustee shall pay from the amounts so deposited on each
applicable Sinking Fund Redemption Date to the Certificates of each Series in
the order of priority set forth in clause "first" of Section 5.01 hereof and
among the Holders of the Certificates of each Series then Outstanding on a pro
rata basis the aggregate principal amount set forth below, together with
accrued interest to such Sinking Fund Redemption Date, but without Make-Whole
Premium (the "Sinking Fund Redemption Price"):
Principal Amount
Series A Series B Series C
Certificates with Certificates with Certificates with
Sinking Fund a Maturity of a Maturity of a Maturity of
Redemption Date January 15, 2016 January 15, 2017 January 15, 2009
- ---------------- ----------------- ----------------- ------------------
January 15, 1998 0 0 102,980
July 15, 1998 0 0 0
January 15, 1999 748,200 147,200 404,926
July 15, 1999 0 0 0
January 15, 2000 748,266 280,600 316,709
July 15, 2000 0 0 0
January 15, 2001 748,266 280,600 422,760
July 15, 2001 0 0 0
January 15, 2002 748,266 280,600 532,275
July 15, 2002 0 0 0
January 15, 2003 0 9,011 1,670,428
July 15, 2003 748,266 271,589 0
January 15, 2004 0 0 740,723
July 15, 2004 748,266 280,600 0
January 15, 2005 0 0 957,930
July 15, 2005 748,266 280,600 0
January 15, 2006 0 0 998,524
July 15, 2006 748,271 280,600 2,326,313
January 15, 2007 0 0 633,363
July 15, 2007 748,266 280,600 0
January 15, 2008 748,267 280,600 1,052,911
July 15, 2008 0 0 0
January 15, 2009 748,267 1,680,218 451,158
July 15, 2009 0 0 0
January 15, 2010 748,266 2,108,147 0
July 15, 2010 0 0 0
January 15, 2011 748,267 2,962,459 0
July 15, 2011 0 0 0
January 15, 2012 3,115,804 1,855,089 0
July 15, 2012 0 0 0
January 15, 2013 5,358,428 0 0
July 15, 2013 0 0 0
January 15, 2014 5,775,968 0 0
July 15, 2014 0 0 0
January 15, 2015 6,226,044 0 0
July 15, 2015 0 0 0
January 15, 2016 6,461,356 249,863 0
July 15, 2016 0 0 0
January 15, 2017 0 2,087,624 0
ARTICLE VII
INDENTURE EVENTS OF DEFAULT; REMEDIES
OF INDENTURE TRUSTEE AND HOLDERS
Section 7.01. Indenture Event of Default. "Indenture Event of
Default" means any of the following events (whatever the reason for such
Indenture Event of Default and whether it shall be voluntary or involuntary or
come about or be effected by operation of law or pursuant to or in compliance
with any judgment, decree or order of any court or any order, rule or
regulation of any administrative or governmental body):
(i) any Event of Default specified in Article 16 of the Lease (other
than an Event of Default arising solely as the result of the failure to
make an Excepted Payment unless the Owner Trustee shall notify the
Indenture Trustee in writing that such failure shall constitute an
Indenture Event of Default); or
(ii) the failure of the Owner Trustee other than by reason of a
Default or an Event of Default (i) to pay principal, interest or Make-Whole
Premium, if any, on any Certificate when due, and such failure shall have
continued unremedied for ten (10) Business Days after the date when due or
(ii) to pay any other amounts hereunder or under the Certificates when due
and such failure shall have continued unremedied for a period of thirty
(30) days after the Owner Trustee and the Owner Participant shall receive
written demand therefor from the Indenture Trustee or by the Holders of not
less than 25% in aggregate principal amount of Outstanding Certificates; or
(iii) (A) any representation or warranty made by SSB, the Owner
Trustee or any Owner Trustee Guarantor, in any Operative Agreement or in any
certificate of SSB or the Owner Trustee furnished to the Indenture Trustee
or any Holder in connection herewith or therewith or pursuant hereto or
thereto shall prove to have been incorrect when made and was and remains in
any respect material to the Holders and if such misrepresentation is
capable of being corrected as of a subsequent date and if such correction
is being sought diligently, and such misrepresentation shall not have been
corrected within 30 days following notice thereof identified as a "Notice
of Indenture Event of Default" being given to the Owner Trustee and any
Owner Participant by the Indenture Trustee or by a Majority in Interest of
Holders; or
(B) any (x) covenant made by the Owner Trustee in the fifth paragraph
following the Habendum Clause hereof or Section 3.05(b)(iii) hereof or
Section 7.02(b) (unless otherwise removed as Owner Trustee within 10 days
after notice thereof to any Owner Participant) or 7.04(b) (unless such Lien
is removed within the 30-day period set forth therein) of the Participation
Agreement shall be breached in any respect or (y) other covenant made by
the Owner Trustee, in its individual capacity or as Owner Trustee, or by
any Owner Trustee Guarantor in any Operative Agreement shall be breached in
any respect and such breach shall remain unremedied for a period of thirty
(30) days after there has been given to the Owner Trustee and any Owner
Participant by the Indenture Trustee or by Certificate Holders of not less
than 25% in aggregate principal amount of Outstanding Certificates a
written notice identified as a "Notice of Indenture Event of Default"
specifying such breach and requiring it to be remedied; or
(iv) the Owner Trustee, the Lessor's Estate or any Owner Trustee
Guarantor shall file any petition or answer seeking for itself any
reorganization, arrangement, composition, readjustment, liquidation,
dissolution or similar relief under any present or future bankruptcy,
insolvency or similar statute, law or regulation;
(v) an order for relief shall be entered in respect of the Owner
Trustee or any Owner Trustee Guarantor or the Lessor's Estate by a court
having jurisdiction in the premises in an involuntary case under the
federal bankruptcy laws as now or hereafter in effect; or the Owner Trustee
or any Owner Trustee Guarantor or the Lessor's Estate shall file any answer
admitting or not contesting the material allegations of a petition filed
against the Owner Trustee or any Owner Trustee Guarantor or the Lessor's
Estate in any proceeding referred to in clause (vi) below or seek or
consent or acquiesce in the appointment of any trustee, custodian, receiver
or liquidator of the Owner Trustee or any Owner Trustee Guarantor or the
Lessor's Estate, as the case may be, or of all or any substantial part of
its properties; or
(vi) without the consent or acquiescence of the Owner Trustee or any
Owner Trustee Guarantor or the Lessor's Estate, as the case may be, an
order shall be entered constituting an order for relief or approving a
petition for relief or reorganization or any other petition seeking any
reorganization, arrangement, composition, readjustment, liquidation,
dissolution or other similar relief under any present or future bankruptcy,
insolvency or similar statute, law or regulation, or if any such petition
shall be filed against the Owner Trustee or any Owner Trustee Guarantor or
the Lessor's Estate, as the case may be, and such petition shall not be
dismissed within 60 days, or if, without the consent or acquiescence of the
Owner Trustee or any Owner Trustee Guarantor or the Lessor's Estate, as the
case may be, an order shall be entered appointing a trustee, custodian,
receiver or liquidator of the Owner Trustee or any Owner Trustee Guarantor
or the Lessor's Estate, as the case may be, or of all or any substantial
part of the properties of the Owner Trustee or any Owner Trustee Guarantor
or the Lessor's Estate, as the case may be, and such order shall not be
dismissed within 60 days; or
(vii) any Owner Trustee Guaranty shall cease to be a valid and
enforceable obligation of any Owner Trustee Guarantor or otherwise shall
not be in full force and effect.
Section 7.02. Remedies. (a) If an Indenture Event of Default shall
have occurred and be continuing and so long as the same shall be continuing
unremedied, then and in every such case, the Indenture Trustee may, and when
required by the provisions of Article IX or Section 7.02(c) hereof, shall (i)
exercise any or all of the rights and powers and pursue any and all of the
remedies pursuant to this Article VII and (ii) in the event such Indenture
Event of Default is an Indenture Event of Default referred to in clause (i) of
Section 7.01 hereof, exercise any and all of the remedies pursuant to Article
17 of the Lease; provided that without the consent of the Owner Trustee such
exercise of remedies shall not occur until after the latest date on which the
Owner Trustee may cure the related Event of Default pursuant to Section 8.03
hereof. The Indenture Trustee may take possession of all or any part of the
properties covered or intended to be covered by the Lien and security interest
created hereby or pursuant hereto and may exclude the Owner Trustee, the
Lessee and any transferee of the Lessee and all Persons claiming under any of
them wholly or partly therefrom. In addition, the Indenture Trustee may
exercise any other right or remedy in lieu of or in addition to the foregoing
that may be available to it under applicable law, or proceed by appropriate
court action to enforce the terms hereof, of the Lease, or both, or to rescind
the Lease. Without limiting any of the foregoing, it is understood and agreed
that the Indenture Trustee may exercise any right of sale of the Aircraft
available to it, even though it shall not have taken possession of the
Aircraft and shall not have possession thereof at the time of such sale.
Notwithstanding the foregoing, it is understood and agreed that if the
Indenture Trustee shall proceed to foreclose the Lien of this Indenture, it
shall substantially simultaneously therewith, to the extent the Indenture
Trustee is then entitled to do so hereunder and under the Lease, and is not
then stayed or otherwise prevented from doing so, proceed (to the extent it
has not already done so) to declare the Lease in default and commence the
exercise in good faith of one or more of the significant remedies under
Article 17 of the Lease (as the Indenture Trustee determines in its sole
discretion). It is further understood and agreed that if the Indenture Trustee
is unable to exercise one or more remedies under Article 17 of the Lease
because of any stay or operation of law or otherwise, the Indenture Trustee
shall not be entitled to foreclose the Lien of this Indenture (A) until the
earlier of (i) 60 days from the date of any such stay or applicable order
under Section 1110 of the Bankruptcy Code including any extension consented to
by the Indenture Trustee or the Holders of Certificates of such period
permitted under Section 1110(b) of the Bankruptcy Code and (ii) the date of
actual repossession of the Aircraft by the Indenture Trustee or (B) if the
Lessee has agreed to perform or assume the Lease and no Event of Default other
than as specified in Section 16.01(e), (f) or (g) of the Lease shall be
continuing. For the avoidance of doubt, it is expressly understood and agreed
that except as aforesaid the above-described inability of the Indenture
Trustee to exercise any right or remedy under the Lease shall in no event and
under no circumstances prevent the Indenture Trustee from exercising all of
its rights, powers and remedies under this Indenture, including, without
limitation, this Article VII. The Indenture Trustee further agrees that
notice of intent to foreclose shall be given to the Owner Trustee at the
earlier of the commencement of any proceeding or at least 30 days prior to the
consummation of foreclosure of the Lien of this Indenture.
(b) If an Indenture Event of Default under clause (iv), (v) or (vi)
of Section 7.01 hereof shall occur and be continuing, the unpaid principal of
all Outstanding Certificates, together with interest accrued but unpaid
thereon and all other amounts due thereunder, but without Make-Whole Premium,
shall immediately become due and payable, without presentment, demand, protest
or notice, all of which are hereby waived.
(c) If any Indenture Event of Default not described in the preceding
paragraph (b) shall have occurred and be continuing, then and in every such
case, the Indenture Trustee may on its own accord or at the direction of
Holders of not less than 25% in aggregate principal amount of Outstanding
Certificates, at any time, by written notice to the Owner Trustee and the
Lessee, declare the principal of all the Certificates to be due and payable,
whereupon the unpaid principal amount of all Outstanding Certificates,
together with accrued interest thereon and all other amounts due thereunder,
but without Make-Whole Premium, shall immediately become due and payable
without presentment, demand, protest or other notice, all of which are hereby
waived. At any time after such declaration and prior to the sale or
disposition of the Trust Indenture Estate, however, the Holders of not less
than 50% in aggregate principal amount of Outstanding Certificates, by notice
to the Indenture Trustee, the Owner Trustee and the Lessee, may rescind such
declaration, whether made by the Indenture Trustee on its own accord or as
directed, if (x) there has been paid or deposited with the Indenture Trustee a
sum sufficient to pay all overdue installments of interest on all Certificates
(together, to the extent permitted by law, with interest on such overdue
installments of interest), the principal on any Certificates that has become
due otherwise than by such declaration of acceleration, all sums paid or
advanced by the Indenture Trustee hereunder and the reasonable compensation,
expenses, disbursements and advances of the Indenture Trustee, its agents and
counsel, or (y) all Indenture Events of Default (other than the nonpayment of
principal that has become due solely because of such acceleration) have been
either cured or waived as provided in Section 7.11 hereof. No such rescission
shall affect any subsequent default or impair any right consequent thereon.
(d) Each Holder shall be entitled at any sale to credit against any
purchase price bid at such sale by such Holder all or any part of the unpaid
obligations owing to such Holder secured by the Lien of this Indenture (but
only to the extent that an amount equal to such purchase price would have been
paid to such Holder pursuant to Article V hereof if such purchase price were
paid in cash and the foregoing provisions of this subsection (d) were not
given effect).
Section 7.03. Return of Aircraft, etc. Subject to Section 7.02
hereof: (a) If an Indenture Event of Default shall have occurred and be
continuing, at the request of the Indenture Trustee, the Owner Trustee shall
promptly execute and deliver to the Indenture Trustee such documents as the
Indenture Trustee may deem necessary or advisable to enable the Indenture
Trustee or an agent or representative designated by the Indenture Trustee, at
such time or times and place or places as the Indenture Trustee may specify,
to obtain possession of all or any part of the Trust Indenture Estate to which
the Indenture Trustee shall at the time be entitled under this Indenture.
Subject to the foregoing, if the Owner Trustee shall for any reason fail to
execute and deliver such documents after such request by the Indenture
Trustee, the Indenture Trustee may (i) obtain a judgment conferring on the
Indenture Trustee or an agent or representative designated by the Indenture
Trustee, the right to immediate possession and requiring the Owner Trustee to
execute and deliver such instruments and documents to the Indenture Trustee or
an agent or representative designated by the Indenture Trustee, to the entry
of which judgment the Owner Trustee hereby specifically consents, and (ii)
pursue all or part of such Trust Indenture Estate wherever it may be found and
enter any of the premises of the Lessee or the Owner Trustee wherever such
Trust Indenture Estate may be or be supposed to be and search for such Trust
Indenture Estate and take possession of and remove such Trust Indenture
Estate. All expenses of obtaining such judgment or of pursuing, searching for
and taking such Trust Indenture Estate shall, until paid, be secured by the
Lien of this Indenture.
(b) Upon every such taking of possession, the Indenture Trustee may,
from time to time, at the expense of the Trust Indenture Estate, make all such
expenditures for maintenance, insurance and repairs to and of such Trust
Indenture Estate, as the Indenture Trustee may reasonably deem proper. In
each case subject to Section 7.02 hereof, the Indenture Trustee shall have the
right to maintain, use, operate, store, lease, control or manage the Trust
Indenture Estate and to carry on the business and to exercise all rights and
powers of the Owner Trustee relating to the Trust Indenture Estate, as the
Indenture Trustee may reasonably deem best, including the right to enter into
any and all such agreements with respect to the maintenance, insurance, use,
operation, storage, leasing, control, management or disposition of all or any
part of the Trust Indenture Estate as the Indenture Trustee may determine.
Further, the Indenture Trustee shall be entitled to collect and receive
directly all tolls, rents (including Rent), revenues, issues, income, products
and profits of the Trust Indenture Estate other than Excepted Payments,
without prejudice, however, to the right of the Indenture Trustee under any
provision of this Indenture to collect and receive all cash held by, or
required to be deposited with, the Indenture Trustee under this Indenture.
Such tolls, rents (including Rent), revenues, issues, income, products and
profits shall be applied to pay the expenses of the use, operation, storage,
leasing, control, management, or disposition of the Trust Indenture Estate,
and of all maintenance and repairs, and to make all payments which the
Indenture Trustee may be required or may reasonably elect to make for any
taxes, assessments, insurance or other proper charges upon the Trust Indenture
Estate (including the employment of engineers and accountants to examine,
inspect and make reports upon the properties and books and records of the
Owner Trustee and the Lessee), and all other payments which the Indenture
Trustee may be required or authorized to make under any provision of this
Indenture, as well as just and reasonable compensation for the services of the
Indenture Trustee and of all persons properly engaged and employed for such
purposes by the Indenture Trustee; provided, that any excess amounts shall be
promptly distributed in accordance with Section 5.03 hereof.
(c) If an Indenture Event of Default shall have occurred and be
continuing and the Indenture Trustee shall be entitled to exercise remedies
hereunder, and subject to Article VIII hereof, the Indenture Trustee, either
with or without taking possession, and either before or after taking
possession, and without instituting any legal proceedings whatsoever, may
sell, assign, transfer and deliver the whole or, from time to time, to the
extent permitted by law, any part of the Trust Indenture Estate, or any part
thereof, or interest therein, at any private sale or public auction to the
highest bidder, with or without demand, advertisement or notice, except that
in respect of any private sale 20 days prior notice will be provided, for cash
or, with the consent of the Owner Trustee, which shall not be unreasonably
withheld, credit or for other property, for immediate or future delivery, and
for such price or prices and on such terms as the Indenture Trustee in
exercising reasonable commercial discretion may determine; provided, that any
such action shall be at the time lawful and that all mandatory legal
requirements shall be complied with. Any notice required pursuant to the
terms hereof in the case of a public sale, shall state the time and place
fixed for such sale. Any such public sale shall be held at such time or times
within ordinary business hours as the Indenture Trustee shall fix in the
notice of such sale. At any such sale, the Trust Indenture Estate may be sold
in one lot as an entirety or in separate lots. The Indenture Trustee shall
not be obligated to make any sale pursuant to such notice. The Indenture
Trustee may, without notice or publication, adjourn any public or private sale
or cause the same to be adjourned from time to time by announcement at the time
and place fixed for such sale, and any such sale may be made at any time or
place to which the same may be so adjourned without further notice or
publication. The Indenture Trustee may exercise such right of sale without
possession or production of the Certificates or proof of ownership thereof,
and as representative of the Holders may exercise such right without notice to
the Holders or without including the Holders as parties to any suit or
proceedings relating to the foreclosure of any part of the Trust Indenture
Estate. The Owner Trustee shall execute any and all such bills of sale,
assignments and other documents, and perform and do all other acts and things
requested by the Indenture Trustee in order to permit consummation of any sale
of the Trust Indenture Estate in accordance with this Section 7.03(c) and to
effectuate the transfer or conveyance referred to in the first sentence of
this Section 7.03(c). Notwithstanding any other provision of this Indenture,
the Indenture Trustee shall not sell the Trust Indenture Estate or any part
thereof unless the Certificates shall have been accelerated.
(d) To the extent permitted by applicable law, the Indenture Trustee
or any Holder may be a purchaser of the Trust Indenture Estate or any part
thereof or any interest therein at any sale thereof, whether pursuant to
foreclosure or power of sale or otherwise. The Indenture Trustee may apply
against the purchase price therefor the amount then due hereunder or under any
of the Certificates secured hereby and any Holder may apply against the
purchase price therefor the amount then due to it hereunder, under any other
Indenture Document or under the Certificates held by such Holder to the extent
of such portion of the purchase price as it would have received had it been
entitled to share any distribution thereof. The Indenture Trustee or any
Holder or nominee thereof shall, upon any such purchase, acquire good title to
the property so purchased, free of the Lien of this Indenture and, to the
extent permitted by applicable law, free of all rights of redemption in the
Owner Trustee or the Owner Participant in respect of the property so
purchased.
(e) Subject to Article VIII hereof, and effective upon the
occurrence and continuance of an Indenture Event of Default, the Owner Trustee
hereby irrevocably appoints and constitutes the Indenture Trustee the true and
lawful attorney-in-fact of the Owner Trustee in its name and stead and on its
behalf, for the purpose of effectuating any sale, assignment, transfer or
delivery for the enforcement of the Lien of this Indenture, whether pursuant
to foreclosure or power of sale or otherwise, to execute and deliver all such
bills of sale, assignments and other instruments as the Indenture Trustee may
consider necessary or appropriate, with full power of substitution, and the
Owner Trustee hereby ratifies and confirms all that such attorney or any
substitute shall lawfully do by virtue hereof. Nevertheless, if so requested
by the Indenture Trustee or any purchaser, the Owner Trustee shall ratify and
confirm any such sale, assignment, transfer or delivery, by executing and
delivering to the Indenture Trustee or such purchaser all bills of sale,
assignments, releases and other proper instruments to effect such ratification
and confirmation as may be designated in any such request.
(f) The Indenture Trustee shall, as a matter of right, be entitled
to the appointment of a receiver (who may be the Indenture Trustee or any
successor or nominee) for all or any part of the Trust Indenture Estate,
whether such receivership be incidental to a proposed sale of the Trust
Indenture Estate or the taking of possession thereof or otherwise, and the
Owner Trustee hereby consents to the appointment of such receiver and will not
oppose any such appointment. Any receiver appointed for all or any part of
the Trust Indenture Estate shall be entitled to exercise all of the rights and
powers of the Indenture Trustee with respect to the Trust Indenture Estate.
(g) Any sale of the Trust Indenture Estate or any part thereof or
any interest therein, whether pursuant to foreclosure or power of sale or
otherwise hereunder, shall be a perpetual bar against the Owner Trustee after
the expiration of the period, if any, during which the Owner Trustee shall
have the benefit of prepayment laws which may not be waived pursuant to
Section 7.13 hereof.
Section 7.04. Indenture Trustee May Prove Debt. If the Owner
Trustee shall fail to pay any amount payable hereunder or under the
Certificates, the Indenture Trustee, in its own name and as trustee of an
express trust, shall be entitled and empowered to institute any action or
proceedings at law or in equity for the collection of the sums so due and
unpaid, and may prosecute any such action or proceedings to judgment or final
decree, and may enforce any such judgment or final decree against the Owner
Trustee and collect in the manner provided by law out of the property of the
Owner Trustee wherever situated, the moneys adjudged or decreed to be payable;
provided, that any sale of any portion of the Trust Indenture Estate shall be
done in accordance with Section 7.03(c) hereof.
In case there shall be pending proceedings relative to the Owner
Trustee under the Bankruptcy Code or any other applicable Federal or state
bankruptcy, insolvency or other similar law, or in case a receiver, assignee
or trustee in bankruptcy or reorganization, liquidator, sequestrator or
similar official shall have been appointed for or taken possession of the
Owner Trustee or its property, or in case of any other comparable judicial
proceedings relative to the Owner Trustee, or to the creditors or property of
the Owner Trustee, the Indenture Trustee, irrespective of whether the
principal of the Certificates shall then be due and payable as therein or
herein expressed or by declaration or otherwise and irrespective of whether
the Indenture Trustee shall have made any demand pursuant to the provisions of
this Section, shall be entitled and empowered, by intervention in such
proceedings or otherwise:
(a) to file and prove a claim or claims for the whole amount of
principal, interest and other amounts owing and unpaid in respect of the
Certificates or hereunder, and to file such other papers or documents as
may be necessary or advisable in order to have the claims of the Indenture
Trustee (including any claim for reasonable compensation to the Indenture
Trustee and each predecessor Indenture Trustee, and their respective
agents, attorneys and counsel, and for reimbursement of the Indenture
Trustee and each predecessor Indenture Trustee, except as a result of
negligence or bad faith) and of the Holders allowed in any judicial
proceedings relative to the Owner Trustee or to the creditors or property of
the Owner Trustee,
(b) unless prohibited by applicable law and regulations, to vote on
behalf of the Holders in any election of a trustee or a standby trustee in
arrangement, reorganization, liquidation or other bankruptcy or insolvency
proceedings or person performing similar functions in comparable
proceedings, and
(c) to collect and receive any moneys or other property payable or
deliverable on any such claims, and to distribute all amounts received with
respect to the claims of the Holders and of the Indenture Trustee on their
behalf;
and any trustee, receiver, or liquidator, custodian or other similar official
is hereby authorized by each of the Holders to make payments to the Indenture
Trustee, and, in the event that the Indenture Trustee shall consent to the
making of payments directly to the Holders, to pay to the Indenture Trustee
such amounts as shall be sufficient to cover reasonable compensation to the
Indenture Trustee, each predecessor Indenture Trustee and their respective
agents, attorneys and counsel, and all other expenses and liabilities
incurred, and all advances made, by the Indenture Trustee and each predecessor
Indenture Trustee except as a result of negligence or willful misconduct.
Nothing contained herein shall be deemed to authorize the Indenture
Trustee to authorize or consent to or vote for or accept or adopt on behalf of
any Holder any plan of reorganization, arrangement, adjustment or composition
affecting the Certificates or the rights of any Holder thereof, or to
authorize the Indenture Trustee to vote in respect of the claim of any Holder
in any such proceeding except, as aforesaid, to vote for the election of a
trustee in bankruptcy or similar person.
All rights of action and rights to assert claims under this
Indenture, or under any of the Certificates, may be enforced by the Indenture
Trustee without the possession of such Certificates on any trial or other
proceedings instituted by the Indenture Trustee shall be brought in its own
name as trustee of an express trust, and any recovery of judgment, subject to
the payment of the expenses, disbursements and compensation of the Indenture
Trustee, each predecessor Indenture Trustee and their respective agents and
attorneys, shall be for the ratable benefit of the Holders, as provided herein.
In any proceedings brought by the Indenture Trustee (and also any
proceedings involving the interpretation of any provision of this Indenture to
which the Indenture Trustee shall be a party) the Indenture Trustee shall be
held to represent all the Holders of the Certificates, and it shall not be
necessary to make any Holders parties to such proceedings.
Section 7.05. Remedies Cumulative. Each and every right, power and
remedy given to the Indenture Trustee in this Indenture shall be cumulative
and shall be in addition to every other right, power and remedy specifically
given herein or now or hereafter existing at law, in equity or by statute, and
each and every right, power and remedy whether specifically given herein or
otherwise existing may be exercised from time to time and as often and in such
order as may be deemed expedient by the Indenture Trustee or the Holders, and
the exercise or the beginning of the exercise of any power or remedy shall not
be construed to be a waiver of the right to exercise at the same time or later
any other right, power or remedy. No delay or omission by the Indenture
Trustee or of any Holder in the exercise of any right, remedy or power or in
the pursuance of any remedy shall impair any such right, power or remedy or be
construed to be a waiver of any default on the part of the Owner Trustee or
the Lessee or to be an acquiescence in any such default.
Section 7.06. Suits for Enforcement. If an Indenture Event of
Default has occurred, has not been waived and is continuing, the Indenture
Trustee may in its discretion and subject to its rights of appropriate
indemnification under Sections 7.08 and 9.03 and Article XI hereof proceed to
protect and enforce its rights and rights of the Holders by such appropriate
judicial proceedings as the Indenture Trustee shall deem most effectual to
protect and enforce any of such rights, either at law or in equity or in
bankruptcy or otherwise, whether for the specific enforcement of any covenant
or agreement contained in this Indenture or in aid of the exercise of any
power granted in this Indenture or to enforce any other legal or equitable
right vested in the Indenture Trustee or the Holders by this Indenture or by
law; provided, that any sale of any portion of the Trust Indenture Estate
shall be done in accordance with Section 7.03(c) hereof.
Section 7.07. Discontinuance of Proceedings. In case the Indenture
Trustee or any Holder shall have instituted any proceeding to enforce any
right, power or remedy under this Indenture by foreclosure, entry or
otherwise, and such proceeding shall have been discontinued or abandoned for
any reason or shall have been determined adversely to the Indenture Trustee or
such Holder, then the Owner Trustee, the Indenture Trustee, any Owner
Participant, the Holders and the Lessee shall, subject to any binding
determination in such proceeding, be restored to their former positions and
rights under this Indenture with respect to the Trust Indenture Estate, and all
rights, remedies and powers of the Indenture Trustee and the Holders shall
continue as if no such proceeding had been instituted.
Section 7.08. Limitations on Suits by Holders. No Holder of any
Certificate shall have any right by virtue or by availing of any provision of
this Indenture to institute any action or proceeding at law or in equity or in
bankruptcy or otherwise upon or under or with respect to this Indenture, or
for the appointment of a trustee, receiver, liquidator, custodian or other
similar official or for any other remedy hereunder, unless such Holder
previously shall have given to the Indenture Trustee written notice that an
Indenture Event of Default shall then have occurred and be continuing, as
hereinbefore provided, and the Holders of not less than 25% in aggregate
principal amount of Outstanding Certificates shall have made written request
upon the Indenture Trustee to institute such action or proceedings in its own
name as trustee hereunder and shall have offered to the Indenture Trustee such
reasonable indemnity as it may require against the costs, expenses and
liabilities to be incurred therein or thereby and the Indenture Trustee for 60
days after its receipt of such notice, request and offer of indemnity shall
have failed to institute any such action or proceedings and no direction
inconsistent with such written request shall have been given to the Indenture
Trustee pursuant to Section 7.10 hereof; it being understood and intended, and
being expressly covenanted by the Holder of each Certificate with every other
Holder of each other Certificate and the Indenture Trustee, that no one or
more Holders shall have any right in any manner whatever to affect, disturb or
prejudice the rights of any other Holder or the Lien of this Indenture or any
part of the Trust Indenture Estate or to obtain or seek to obtain priority
over or preference to any other such Holder or to enforce any right under this
Indenture, except in the manner provided herein and for the equal, ratable and
common benefit of all Holders. For the protection and enforcement of the
provisions of this Section, each and every Holder and the Indenture Trustee
shall be entitled to such relief as can be given either at law or in equity.
Section 7.09. Unconditional Right of Holders to Receive Principal,
Interest and Make-Whole Premium, and to Institute Certain Suits.
Notwithstanding any other provision in this Indenture and any provision of any
Certificate, the right of any Holder to receive payment of the principal of
and interest and Make-Whole Premium, if any, on such Certificate on or after
the respective due dates and in the manner expressed in such Certificate, or,
subject to Section 7.08 hereof, to institute suit for the enforcement of any
such payment on or after such respective dates as provided herein, shall not
be impaired or affected without the consent of such Holder.
Section 7.10. Control by Holders. The Majority in Interest of
Certificate Holders shall have the right to direct the Indenture Trustee as to
the time, method, and place of conducting any proceeding for any remedy
available to the Indenture Trustee, or exercising any trust or power conferred
on the Indenture Trustee by this Indenture; provided that such direction shall
not be otherwise than in accordance with law and the provisions of this
Indenture and the Indenture Trustee shall have received, to the extent
provided in Sections 7.08 and 9.03 and Article XI hereof, such reasonable
indemnification as it may require against the costs, expenses and liabilities
to be incurred by the Indenture Trustee; and provided further that (subject to
the provisions of Section 9.02 hereof) the Indenture Trustee shall have the
right to decline to follow any such direction if the Indenture Trustee, being
advised by counsel, shall determine that the action or proceeding so directed
may not lawfully be taken or if the Indenture Trustee in good faith by its
board of directors, the executive committee, or a trust committee of directors
or Responsible Officers of the Indenture Trustee shall determine that the
action or proceedings so directed would involve the Indenture Trustee in
personal liability or if the Indenture Trustee in good faith shall so
determine that the actions or forebearances specified in or pursuant to such
direction shall be unduly prejudicial to the interests of Holders not joining
in the giving of said direction, it being understood that (subject to Section
9.02 hereof) the Indenture Trustee shall have no duty to ascertain whether or
not such actions or forebearances are unduly prejudicial to such Holders.
Nothing in this Indenture shall impair the right of the Indenture
Trustee in its discretion to take any action deemed proper by the Indenture
Trustee and which is not inconsistent with the direction by the Majority in
Interest of Certificate Holders.
Section 7.11. Waiver of Past Indenture Default. Upon written
instructions from the Majority in Interest of Certificate Holders, the
Indenture Trustee shall waive any past Indenture Default and its consequences
and upon any such waiver such Indenture Default shall cease to exist and any
Indenture Event of Default arising therefrom shall be deemed to have been
cured for every purpose of this Indenture, but no such waiver shall extend to
any subsequent or other Indenture Default or impair any right consequent
thereon; provided, however, that in the absence of written instructions from
all Holders and each Liquidity Provider, the Indenture Trustee shall not waive
any Indenture Default (a) in the payment of the principal of or Make-Whole
Premium, if any, or interest on, or other amounts due under, any Certificate
then Outstanding, or (b) in respect of a covenant or provision of this
Indenture which, under Article XIII hereof, cannot be modified or amended
without the consent of each Holder.
Section 7.12. Notice of Indenture Default. The Indenture Trustee
shall transmit to the Owner Trustee, the Holders and to the Owner Participant
notice of any Indenture Defaults actually known to a Responsible Officer of
the Indenture Trustee, such notice to be transmitted by mail to the Holders
within 90 days, and to the Owner Trustee and the Owner Participant promptly
after the occurrence thereof, unless such Indenture Default shall have been
cured before the giving of such notice; provided that except in the case of a
default in the payment of the principal of or interest on any Certificate,
under no circumstances shall the Indenture Trustee give such notice to the
Holders until the expiration of a period of 60 days from the occurrence of such
Indenture Default; and provided further that, except in the case of default in
the payment of the principal of or interest on or any other amount due under
any of the Certificates, the Indenture Trustee shall be protected in
withholding such notice to the Holders if and so long as the board of
directors, the executive committee, or a trust committee of directors or
trustees and/or Responsible Officers of the Indenture Trustee in good faith
determines that the withholding of such notice is in the interests of the
Holders.
Section 7.13. Waiver of Appraisement, etc.; Laws. The Owner Trustee
covenants (to the extent that it may lawfully do so) that it will not at any
time insist upon, or plead, or in any manner whatsoever claim or take the
benefit or advantage of, any appraisement, valuation, stay, extension or
prepayment law wherever enacted, now or at any time hereafter in force, in
order to prevent or hinder the enforcement of this Indenture or the execution
of any power granted herein to the Indenture Trustee, or the absolute sale of
the Trust Indenture Estate, or any part thereof, or the possession thereof by
any purchaser at any sale under this Article VII; and the Owner Trustee for
itself and all who may claim under it, so far as it or any of them now or
hereafter lawfully may, hereby waives the benefit of all such laws. The Owner
Trustee for itself and all who may claim under it waives, to the extent that
it lawfully may, all right to have the property in the Trust Indenture Estate
marshalled upon any foreclosure hereof, and agrees that any court having
jurisdiction to foreclose this Indenture may order the sale of the Trust
Indenture Estate as an entirety.
If any law referred to in this Section 7.13 and now in force, of
which the Owner Trustee or its successors might take advantage despite this
Section 7.13, shall hereafter be repealed or cease to be in force, such law
shall not thereafter be deemed to constitute any part of the contract herein
contained or to preclude the application of this Section 7.13.
ARTICLE VIII
RIGHTS OF THE OWNER TRUSTEE
AND THE OWNER PARTICIPANTS
Section 8.01. Certain Rights of Owner Trustee and Owner
Participants. (a) Subject to Section 13.01 hereof, without the consent of a
Majority in Interest of Certificate Holders, the respective parties to the
Indenture Documents may not modify, amend or supplement any of said
agreements, or give any consent, waiver, authorization or approval thereunder,
for the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions thereof or of modifying in any manner the
rights of the respective parties thereunder; provided, however, that the
actions specified in subsection (b) of this Section 8.01 and the amendments
contemplated by Section 2.03 of the Participation Agreement (subject to the
limitations set forth therein) may be taken without the consent of the
Indenture Trustee or any Holder.
(b) Subject to the provisions of subsection (c) of this Section
8.01, the respective parties to the Indenture Documents, at any time and from
time to time, without the consent of the Indenture Trustee or of any Holder,
may:
(1) so long as no Indenture Event of Default shall have occurred and
be continuing, modify, amend or supplement the Lease, or give any waiver
with respect thereto, except that without compliance with subsection (a) of
this Section 8.01 the parties to the Lease shall not modify, amend or
supplement, or give any waiver for the purpose of adding any provisions to
or changing in any manner or eliminating any of the provisions thereof or
of modifying in any manner the rights of the respective parties thereunder,
with respect to the following provisions of the Lease as in effect on the
effective date hereof: Article 2 (provided that, if in respect of the
Term, the result thereof would not be to shorten the Term of the Lease to a
period shorter than the period ending with the Maturity of any
Certificate), Section 3.03 (except to the extent such Section relates to
amounts payable (whether directly or pursuant to this Indenture) to Persons
other than Holders, each Liquidity Provider, the Subordination Agent and
the Indenture Trustee in its individual capacity), Section 3.05, Section
3.06 (except insofar as it relates to the address or account information of
the Owner Trustee or the Indenture Trustee) (other than as such Sections
3.03, 3.05 and 3.06 may be amended pursuant to Section 3.04 of the Lease as
in effect on the effective date hereof), Section 5.01, Article 6, Article
10 (except that further restrictions may be imposed on the Lessee), Article
11 (except that additional requirements may be imposed on the Lessee),
Article 13 (except for Section 13.05 and except that additional insurance
requirements may be imposed on the Lessee), Article 14 (except in order to
increase the Lessee's liabilities or enhance the Lessor's rights
thereunder), Article 15 (except in the case of an assignment by the Lessor
in circumstances where the Aircraft shall remain registrable under the
Federal Aviation Act), Section 16.01 (except to impose additional or more
stringent Events of Default), Article 17 (except to impose additional
remedies), Section 19.01 (except to impose additional requirements on the
Lessee), Section 20.01, Article 22, Section 23.01, Section 26.03 and any
definition of terms used in the Lease, to the extent that any modification
of such definition would result in a modification of the Lease not
permitted pursuant to this subsection (b); provided that the parties to the
Lease may take any such action without the consent of the Indenture Trustee
or any Holder to the extent such action relates to the payment of amounts
constituting, or the Owner Trustee's, the Owner Participant' or the
Lessee's rights or obligations with respect to, Excepted Payments (other
than the place, time and manner of payment of Basic Rent constituting an
Excepted Payment);
(2) modify, amend or supplement the Trust Agreement and any other
Indenture Document (other than the Lease and the Participation Agreement),
or give any consent, waiver, authorization or approval with respect
thereto, in each case only to the extent any such action shall not
adversely impact the interests of the Holders;
(3) modify, amend or supplement the Participation Agreement, or give
any consent, waiver, authorization or approval with respect thereto, except
that without compliance with subsection (a) of this Section 8.01 the
parties to the Participation Agreement shall not modify, amend or
supplement, or give any consent, waiver, authorization or approval for the
purpose of adding provisions to or changing in any manner or eliminating
any of the provisions thereof or of modifying in any manner the rights of
the respective parties thereunder, with respect to the following provisions
of the Participation Agreement as in effect on the effective date hereof:
Articles 6, 8 and 9 and Section 10.01(b) (insofar as such Articles 6, 8 and
9 and Section 10.01(b) relate to the Indenture Trustee, the Pass Through
Trustee and the Holders), Article 7 and Sections 3.05 and 17.11 and any
definition of terms used in the Participation Agreement, to the extent that
any modification of such definition would result in a modification of the
Participation Agreement not permitted pursuant to this subsection (b); and
(4) modify, amend or supplement any of said agreements in order to
cure any ambiguity, to correct or supplement any provisions thereof which
may be defective or inconsistent with any other provision thereof or of any
provision of this Indenture, or to make any other provision with respect to
matters or questions arising thereunder or under this Indenture which shall
not be inconsistent with the provisions of this Indenture, provided the
making of any such other provision shall not adversely affect the interests
of the Holders.
(c) No modification, amendment, supplement, consent, waiver,
authorization or approval with respect to the Lease or the Participation
Agreement, whether effected pursuant to subsection (a) or pursuant to
subsection (b) of this Section 8.01 and anything in such subsections or
elsewhere in this Indenture to the contrary notwithstanding, shall, without
the consent of the Holder of each Outstanding Certificate affected thereby,
and each Liquidity Provider,
(1) modify, amend or supplement the Lease in such a way as to extend
the time of payment of Basic Rent or Supplemental Rent or Stipulated Loss
Value or any other amounts payable to the Indenture Trustee for its own
account or for the account of the Holders (subject in any event to Section
3.05 of the Lease) upon the occurrence of an Event of Loss, or Termination
Value or EBO Price and any other amounts payable to the Indenture Trustee
for its own account or for the account of the Holders (subject in any event
to Section 3.05 of the Lease) upon termination of the Lease with respect to
the Aircraft payable under, or as provided in, the Lease as in effect on
the effective date hereof, or reduce the amount of any installment of Basic
Rent or Supplemental Rent so that the same is less than the payment of
principal of, and interest on the Certificates and Make-Whole Premium, if
any, and amounts due to each Liquidity Provider, as the case may be, to be
made from such installment of Basic Rent or Supplemental Rent, or reduce
the aggregate amount of Stipulated Loss Value, or any other amounts payable
under, or as provided in, the Lease as in effect on the effective date
hereof upon the occurrence of an Event of Loss so that the same is less
than the accrued interest on and the principal as of the Loss Payment Date,
of the Certificates at the time Outstanding or reduce the amount of
Termination Value or EBO Price and any other amounts payable under, or as
provided in, the Lease as in effect on the effective date hereof upon
termination of the Lease with respect to the Aircraft so that the same is
less than the accrued interest on and principal as of the Lease Termination
Date or EBO Date, as the case may be, and Make-Whole Premium, if any, of
Certificates at the time Outstanding, or
(2) modify, amend or supplement the Lease in such a way as to, or
consent to any assignment of the Lease or give any consent, waiver,
authorization or approval which would, release the Lessee from its absolute
and unconditional obligations in respect of payment of Basic Rent or
Supplemental Rent, or Stipulated Loss Value and any other amounts payable
to the Indenture Trustee for its own account or the account of the Holders
(subject in any event to Section 3.05 of the Lease) upon the occurrence of
an Event of Loss, or Termination Value or EBO Price and any other amounts
payable to the Indenture Trustee for its own account or the account of the
Holders (subject in any event to Section 3.05 of the Lease) of the Lease
with respect to the Aircraft, payable under, or as provided in, the Lease
as in effect on the effective date hereof, except for any such assignment
pursuant to Section 2.12 hereof, and except as provided in the Lease as in
effect on the effective date hereof.
(d) At all times so long as this Indenture is in effect, the consent
of the Owner Trustee (at the direction of the Owner Participant) shall be
required in order (i) to amend, modify or supplement the Lease or any other
Operative Document to which the Owner Trustee is a party or to waive
compliance by the Lessee with any of its obligations thereunder and (ii) to
grant any consent requested under the Lease.
Notwithstanding the foregoing, but subject always to the provision of Section
15.05 hereof, the Indenture Trustee shall at all times have the right, to the
exclusion of the Owner Trustee and the Owner Participant, to (A) declare the
Lease to be in default under Article 17 (other than with respect to Excepted
Payments) thereof and (B) subject only to the provisions of this Indenture,
exercise the remedies set forth in such Article 17 of the Lease (other than in
connection with Excepted Payments) and in Article 7 hereof.
Nothing in this Indenture shall be deemed to prohibit the Owner
Participant or the Owner Trustee from making demand on the Lessee for, or from
commencing an action at law to obtain the payment of, or from receiving
payment of, any Excepted Payment; provided, however, that if the Owner Trustee
is proceeding under the Lease, the Owner Trustee shall proceed pursuant to
Section 17.01(a)(v), and only Section 17.01(a)(v), of the Lease.
Section 8.02. Owner Participant' Right to Elect to Prepay or
Purchase the Certificates. (a) If (i) an Event of Default shall have occurred
and be continuing for more than 180 days or the Certificates shall have become
due and payable pursuant to Section 7.02(b) or (c) hereof or (ii) an Event of
Default shall have occurred and be continuing for not more than 180 days and
the Certificates shall not have become due and payable pursuant to Section
7.02(b) or (c) hereof, the Owner Participant (or the Owner Trustee on behalf
of the Owner Participant) may, but shall be under no obligation to, do either
of the following:
(1) direct the Owner Trustee to cause the prepayment of all, but not
less than all, of the Certificates then Outstanding by notifying the
Indenture Trustee of such election, which notice in order to be effective
shall state that it is irrevocable and shall designate a Prepayment Date
which shall be a Business Day and which shall be not less than 15 days
after the date of such notice on which the Owner Trustee shall, in the
manner provided for in Section 6.04 hereof, deposit the sum of amounts
contemplated by paragraph "first" under Section 5.03 and the aggregate
Prepayment Price of all such Certificates with the Indenture Trustee. If
such payment by the Owner Trustee to the Indenture Trustee is made, the
Certificates shall cease to accrue interest from and after the Prepayment
Date, and after distribution of such payment to the Holders, the Indenture
Trustee shall release the Trust Indenture Estate from the Lien of this
Indenture; or
(2) purchase all, but not less than all, of the Outstanding
Certificates by notifying the Indenture Trustee of such election, which
notice in order to be effective shall state that it is irrevocable and
shall designate a date which shall be a Business Day and which shall be not
less than 15 days after the date of such notice on which the Owner Trustee
shall pay to the Indenture Trustee an amount equal to the aggregate unpaid
principal amount of all Outstanding Certificates, together with accrued
interest on such amount to the date of purchase, the aggregate amount of
any Make-Whole Premium applicable to each Outstanding Certificate (if such
purchase occurs prior to the Premium Termination Date for such Outstanding
Certificate) in the case of a purchase pursuant to clause (a)(ii) above,
plus all other sums due any Holder or the Indenture Trustee hereunder or
under the Participation Agreement or the Lease. Upon receipt by the
Indenture Trustee of such amount, each Holder will be deemed, whether or
not Certificates shall have been delivered to the Indenture Trustee on such
date, to have thereupon sold, assigned, transferred and conveyed (and shall
promptly take such actions as the Owner Participant shall reasonably
request to evidence such sale, assignment, transfer and conveyance) to the
Owner Participant (without recourse or warranty of any kind except for its
own acts), all of the right, title and interest of such Holder in and to
the Trust Indenture Estate and this Indenture and all Certificates held by
such Holder and the former Holders shall not be entitled to receive any
interest on the principal amount of such Certificates after the purchase
date, and the Owner Participant shall be deemed to have assumed (and shall
promptly take such actions as any Holder shall reasonably request to
evidence such assumption) all of such Holder's obligations under the
Participation Agreement and this Indenture arising subsequent to such sale.
If the Owner Trustee shall so request, such Holder will comply with all the
provisions of Section 2.06 of this Indenture to enable new Certificates to
be issued to the Owner Participant in such authorized denominations as the
Owner Participant shall request. All charges and expenses required pursuant
to Section 2.06 hereof in connection with the issuance of any such new
Certificates shall be borne by the Owner Participant.
(b) From and after the deposit by the Owner Trustee of the applicable
Prepayment Price or purchase price with the Indenture Trustee pursuant to
Section 8.02(a) hereof, the Owner Trustee shall be entitled to exercise all
remedies of the Indenture Trustee under Article VII hereof as well as of the
Lessor under the Lease.
Section 8.03. Certain Rights of Owner Participant. (a) If (A)
there shall occur an Event of Default under the Lease as a result of the
Lessee's failure to make any payment of an installment of Basic Rent, and (B)
the Owner Trustee shall have paid or caused to be paid on or prior to the date
which is 15 Business Days after such Event of Default all principal and
interest on the Certificates then due (as well as any interest on overdue
principal and (to the extent permitted by applicable law) interest), but not
including any principal or interest becoming due on account of such Event of
Default, then the failure of the Lessee to make the payment of such
installment of Basic Rent or of interest on account of such installment's
being overdue shall not constitute or result in an Indenture Event of Default
under this Indenture and any declaration based solely on the same shall be
deemed to be automatically rescinded. Nothing contained in the preceding
sentence shall be deemed to entitle the Owner Trustee to exercise any rights
and powers or pursue any remedies pursuant to Article 17 of the Lease or
otherwise except as set forth in this Indenture, and except that the Owner
Trustee or any Owner Participant may attempt to recover any amount paid by it
or them under this Indenture by demanding of the Lessee payment of such
amount, or by commencing an action at law against the Lessee for the payment
of such amount or taking appropriate action in a pending action at law against
the Lessee pursuant to Section 17.01(a)(v), but only said Section 17.01(a)(v),
of the Lease. Upon curing any such Event of Default pursuant to this Section
8.03, the Owner Trustee or the Owner Participant, as the case may be, shall,
so long as no Indenture Event of Default shall have occurred and be
continuing, be subrogated on an unsecured basis to all the rights of the
Indenture Trustee under the Lease in respect of the payment giving rise to
such Event of Default, and any right to any interest in respect of the same,
and shall be entitled to any payment of Basic Rent (or interest thereon)
actually made by the Lessee in respect of such cured payment upon receipt by
the Indenture Trustee; provided that no such amount shall be paid to the Owner
Trustee or such Owner Participant until all amounts then due and payable to
each Certificate Holder hereunder and thereunder shall have been paid in full
and no Indenture Event of Default shall have occurred and be continuing.
Notwithstanding anything in this Indenture or the Lease to the contrary, the
Owner Participant and the Owner Trustee collectively, shall not be entitled to
cure more than six (6) Events of Default (no more than three (3) of which may
be consecutive) occasioned by defaults in the payment of Basic Rent.
(b) If (A) there shall occur an Event of Default under the Lease for
any reason other than the Lessee's failure to make any payment of an
installment of Basic Rent and (B) the Owner Trustee shall have taken or caused
to be taken such action necessary to cure and shall have cured such Event of
Default prior to the date which is 15 Business Days after such Event of
Default, then the failure of the Lessee to perform such covenant, condition or
agreement, the observance or performance of which was accomplished by the
Owner Trustee hereunder shall not constitute or result in an Indenture Event
of Default under this Indenture and any declaration based solely on the same
shall be deemed to be automatically rescinded. Nothing contained in the
preceding sentence shall be deemed to entitle the Owner Trustee or any Owner
Participant to exercise any rights and powers or pursue any remedies pursuant
to Article 17 of the Lease or otherwise except as set forth in this Indenture,
and except that the Owner Trustee or the Owner Participant may attempt to
recover any amount paid by it or them in effecting such cure by demanding of
the Lessee payment of such amount, plus any interest due, or by commencing an
action at law against the Lessee for the payment of such amount or taking
appropriate action in a pending action at law against the Lessee pursuant to
Section 17.01(a)(v), but only said Section 17.01(a)(v), of the Lease. Upon
curing any such Event of Default pursuant to this Section 8.03(b), the Owner
Trustee or the Owner Participant, as the case may be, shall be subrogated to
all the rights of the Indenture Trustee under the Lease in respect of the
payment, agreement or covenant giving rise to such Event of Default, and any
right to any interest in respect of the same, and shall be entitled to any
payment or other performance upon receipt by the Indenture Trustee; provided
that no such amount shall be paid to the Owner Trustee or the Owner
Participant until all amounts then due and payable to each Certificate Holder
hereunder and thereunder shall have been paid in full and no Indenture Event
of Default shall have occurred and be continuing.
ARTICLE IX
CONCERNING THE INDENTURE TRUSTEE
Section 9.01. Acceptance of Trusts. The Indenture Trustee in its
individual capacity hereby accepts the trusts imposed upon it by this
Indenture, and covenants and agrees to perform the same as expressed herein
and agrees to receive and disburse all moneys constituting part of the Trust
Indenture Estate in accordance with the terms hereof.
Section 9.02. Duties and Responsibilities of the Indenture Trustee;
During an Indenture Event of Default; Prior to an Indenture Event of Default.
(a) The Indenture Trustee, prior to the occurrence of an Indenture Event of
Default and after the curing or waiving of all Indenture Events of Default
which may have occurred, undertakes to perform such duties and only such
duties as are specifically set forth in this Indenture. So long as an
Indenture Event of Default has occurred and has not been cured or waived, the
Indenture Trustee shall exercise such of the rights and powers vested in it by
this Indenture, and use the same degree of care and skill in their exercise,
as a prudent man would exercise or use under the circumstances in the conduct
of his own affairs. No provision of this Indenture shall be construed to
relieve the Indenture Trustee from liability for its own negligent action, its
own negligent failure to act or its own willful misconduct, except that:
(i) prior to the occurrence of an Indenture Event of Default and
after the curing or waiving of all Indenture Events of Default which may have
occurred:
(x) the duties and obligations of the Indenture Trustee shall be
determined solely by the express provisions of this Indenture, and the
Indenture Trustee shall not be liable except for the performance of such
duties and obligations as are specifically set forth in this Indenture, and no
implied covenants or obligations shall be read in to this Indenture against
the Indenture Trustee; and
(y) in the absence of bad faith on the part of the Indenture
Trustee, the Indenture Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed therein, upon any
statements, certificates or opinions furnished to the Indenture Trustee and
conforming to the requirements of this Indenture; but in the case of any such
statements, certificate or opinions which by any provision hereof are
specifically required to be furnished to the Indenture Trustee, the Indenture
Trustee shall be under a duty to examine the same to determine whether or not
they conform to the requirements of this Indenture;
(ii) the Indenture Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer or Responsible Officers
of the Indenture Trustee, unless it shall be proved that the Indenture Trustee
was negligent in ascertaining the pertinent facts; and
(iii) the Indenture Trustee shall not be liable with respect to any
action taken or not taken by it in good faith in accordance with the direction
of the Holders of not less than a majority in aggregate principal amount of
Outstanding Certificates relating to the time, method and place of conducting
any proceeding for any remedy available to the Indenture Trustee, or
exercising any trust or power conferred upon the Indenture Trustee, under this
Indenture.
None of the provisions contained in this Indenture shall require the
Indenture Trustee to expend or risk its own funds or otherwise incur personal
financial liability in the performance of any of its duties or in the exercise
of any of its rights or powers, if the Indenture Trustee shall have determined
in good faith that the repayment of such funds or adequate indemnity against
such liability is not reasonably assured to it.
The Indenture Trustee agrees that it will execute and the Owner
Trustee agrees that it will file or cause to be filed such continuation
statements with respect to financing statements relating to the security
interest created hereunder in the Trust Indenture Estate as may be specified
from time to time in written instructions of the Holders of not less than 25%
in aggregate principal amount of Certificates (which instructions may, by
their terms, be operative only at a future date and which shall be accompanied
by the execution form of such continuation statement so to be filed); provided
that, notwithstanding the foregoing, the Indenture Trustee may execute and
file or cause to be filed any financing statement which it from time to time
deems appropriate.
(b) If any Event of Default shall have occurred and be continuing
and, after the latest date on which the Owner Trustee may cure such Event of
Default pursuant to Section 8.03 hereof, on request of the Holders of not less
than 25% in aggregate principal amount of Outstanding Certificates and subject
to indemnification, to the extent provided in Sections 7.08 and 9.03 and
Article XI hereof, as it may require against the costs, expenses and
liabilities to be incurred, the Indenture Trustee shall exercise such remedies
under Article 17 of the Lease as shall be specified in such request.
(c) The Indenture Trustee agrees that it will, in its individual
capacity and at its own cost and expense (but without any right of indemnity
in respect of any such cost or expense under Article XI hereof) promptly take
such action as may be necessary duly to discharge all Indenture Trustee's
Liens on any part of the Trust Indenture Estate.
(d) The Indenture Trustee will execute and deliver to the Lessee for
filing in accordance with Article 18 of the Lease any properly presented
document, instrument or financing or continuation statement specified in any
opinion delivered pursuant to Section 6.03(e) of the Participation Agreement.
The Indenture Trustee may rely on the act of presentation of any such
document, instrument, financing or continuation statement as evidencing the
fact that it is properly prepared and presented, provided that the Indenture
Trustee shall promptly correct any error in any such document, instrument,
financing or continuation statement of which a Responsible Officer of the
Indenture Trustee has actual knowledge.
(e) The Indenture Trustee will furnish to each Holder promptly upon
receipt thereof, duplicates or copies of all reports, notices, requests,
demands, certificates, financial statements and other instruments furnished to
the Indenture Trustee, to the extent that the same shall not have been
otherwise furnished to such Holder pursuant to this Indenture or to the extent
the Indenture Trustee does not reasonably believe that the same shall have
been furnished by the Lessee directly to such Holder.
Section 9.03. Certain Rights of the Indenture Trustee. Subject to
Section 9.02 hereof:
(a) the Indenture Trustee may rely and shall be protected in acting
or refraining from acting upon any resolution, Officer's Certificate or any
other certificate, statement, instrument, opinion, report, notice, request,
consent, order, bond, debenture, note, coupon, security 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, direction, order or demand of the Owner Trustee
mentioned herein shall be sufficiently evidenced by an Officer's
Certificate (unless other evidence in respect thereof be herein
specifically prescribed) upon which the Indenture Trustee may rely to prove
or establish a matter set forth therein;
(c) the Indenture Trustee may consult with counsel and any advice or
Opinion of Counsel shall be full and complete authorization and protection
in respect of any action taken, suffered or omitted to be taken by it
hereunder in good faith and in accordance with such advice or Opinion of
Counsel;
(d) the Indenture Trustee shall be under no obligation to exercise
any of the trusts or powers vested in it by this Indenture at the request,
order or direction of any of the Holders pursuant to the provisions of this
Indenture, unless such Holders shall have offered to the Indenture Trustee
reasonable security or indemnity against the costs, expenses and
liabilities which might be incurred therein or thereby;
(e) the Indenture Trustee shall not be liable for any action taken
or omitted by it in good faith and believed by it to be authorized or
within the discretion, rights or powers conferred upon it by this Indenture;
(f) prior to the occurrence of an Indenture Event of Default
hereunder and after the curing or waiving of all Indenture Events of
Default, the Indenture Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, approval,
appraisal, bond, debenture, note, coupon, security, or other paper or
document unless requested in writing to do so by the Majority in Interest
of Certificate Holders; provided that, if the payment within a reasonable
time to the Indenture Trustee of the costs, expenses or liabilities likely
to be incurred by it in the making of such investigation is, in the opinion
of the Indenture Trustee, not reasonably assured to the Indenture Trustee
by the security afforded to it by the terms of this Indenture, the
Indenture Trustee may require reasonable indemnity against such costs,
expenses or liabilities as a condition to proceeding; the reasonable
expenses of every such examination shall be paid by the Owner Trustee or,
if paid by the Indenture Trustee or any predecessor trustee, shall be
repaid by the Owner Trustee upon demand; and
(g) the Indenture Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
agents or attorneys not regularly in its employ and the Indenture Trustee
shall not be responsible for any misconduct or negligence on the part of
any such agent or attorney appointed with due care by it hereunder.
Section 9.04. Indenture Trustee Not Responsible for Recitals,
Disposition of Certificates or Application of Proceeds Thereof. The Indenture
Trustee assumes no responsibility for the correctness of the recitals
contained herein and in the Certificates, except the Indenture Trustee's
certificates of authentication. The Indenture Trustee makes no
representation as to the validity or sufficiency of this Indenture or of the
Certificates. The Indenture Trustee shall not be accountable for the use or
application by the Owner Trustee of any of the Certificates or of the proceeds
thereof.
Section 9.05. Indenture Trustee and Agents May Hold Certificates;
Collections, etc. The Indenture Trustee or any agent of the Indenture Trustee
in its individual or any other capacity may become the owner or pledgee of
Certificates with the same rights it would have if it were not the Indenture
Trustee or such agent and may otherwise deal with the Owner Trustee and
receive, collect, hold and retain collections from the Owner Trustee with the
same rights it would have if it were not the Indenture Trustee or such agent.
Section 9.06. Moneys Held by Indenture Trustee. Subject to Sections
5.08 hereof and 14.04 hereof, all moneys received by the Indenture Trustee
shall, until used or applied as herein provided, be held in trust for the
purposes for which they were received, but need not be segregated from other
funds except to the extent required by mandatory provisions of law. Neither
the Owner Trustee nor, subject to Section 5.08 hereof, the Indenture Trustee
nor any agent thereof shall be under any liability for interest on any moneys
received by it hereunder.
Section 9.07. Right of Indenture Trustee to Rely on Officer's
Certificate, etc. Subject to Sections 9.02 and 9.03 hereof, whenever in the
administration of the trusts of this Indenture the Indenture Trustee shall
deem it necessary or desirable that a matter be proved or established prior to
taking or suffering or omitting any action hereunder, such matter (unless
other evidence in respect thereof be specifically prescribed herein) may, in
the absence of bad faith on the part of the Indenture Trustee, be deemed to be
conclusively proved and established by an Officer's Certificate delivered to
the Indenture Trustee, and such certificate, in the absence of bad faith on
the part of the Indenture Trustee, shall be full warrant to the Indenture
Trustee for any action taken, suffered or omitted by it under the provisions
of this Indenture upon the faith thereof.
Section 9.08. Replacement Airframes and Replacement Engines. At any
time and from time to time any Airframe or Engine which has been subject to an
Event of Loss and may, or is required to, be replaced under Section 10.03,
11.03 or 11.04 of the Lease by a Replacement Airframe or Replacement Engine,
as the case may be, shall be replaced in accordance with the provisions of
this Section 9.08 and the provisions of said Sections of the Lease, the Owner
Trustee shall, from time to time, direct the Indenture Trustee to execute and
deliver to or as directed in writing by the Owner Trustee an appropriate
instrument releasing such Airframe and/or Engine as appropriate from the Lien
of this Indenture and the Indenture Trustee shall execute and deliver such
instrument as aforesaid without recourse or warranty, but only upon receipt by
or deposit with the Indenture Trustee of the following:
(1) A written request from the Owner Trustee requesting such release
and specifically describing the Airframe and/or Engine(s) to be so released.
(2) A certificate signed by a duly authorized officer of the Lessee
stating the following:
A. With respect to the replacement of any Airframe:
(i) a description of the Airframe subject to the Event of Loss
including the manufacturer, model, FAA registration number (or other
applicable registration information) and manufacturer's serial number;
(ii) a description of the Replacement Airframe, including the
manufacturer, model, FAA registration number (or other applicable
registration information) and manufacturer's serial number;
(iii) that on the date of the Indenture and Security Agreement
Supplement relating to the Replacement Airframe the Owner Trustee
will be the legal owner of and have good and marketable title to such
Replacement Airframe free and clear of all Liens except Liens
permitted under Section 6.01 of the Lease, that such Replacement
Airframe will on such date be in at least as good operating condition
and repair as required by the terms of the Lease, and that such
Replacement Airframe has been or, substantially concurrently with
such replacement, will be duly registered in the name of the Owner
Trustee under the Transportation Code or under the law then
applicable to the registration of the Airframe subject to the Event
of Loss and that an airworthiness certificate has been duly issued
under the Transportation Code (or such other applicable law) with
respect to such Replacement Airframe and that such registration and
certificate is, or will be, in full force and effect, and that the
Lessee will have the full right and authority to use such Replacement
Airframe;
(iv) that the insurance required by Article 13 of the Lease is in
full force and effect with respect to such Replacement Airframe and
all premiums then due thereon have been paid in full;
(v) that the Replacement Airframe is of the same or an improved make
or model as the Airframe requested to be released from this Indenture;
(vi) that the value of the Replacement Airframe as of the date of such
certificate is not less than the value of the Airframe requested to
be released (assuming such Airframe was in the condition and repair
required to be maintained under the Lease);
(vii) that no Event of Default has occurred and is continuing or
would result from the making and granting of the request for release
and the addition of a Replacement Airframe;
(viii) that the release of the Airframe subject to the Event of Loss
will not impair the security of the Indenture in contravention of any
of the provisions of this Indenture;
(ix) that upon such replacement, the Lien of this Indenture will
apply to the Replacement Airframe and such Lien will be a first
priority security interest in favor of the Indenture Trustee; and
(x) that each of the conditions specified in Section 11.03 of the
Lease with respect to such Replacement Airframe has been satisfied.
B. With respect to the replacement of any Engine:
(i) a description of the Engine subject to the Event of Loss
including the manufacturer's serial number;
(ii) a description of the Replacement Engine including the
manufacturer's name, the engine model and serial number;
(iii) that on the date of the Indenture and Security Agreement
Supplement relating to the Replacement Engine the Owner Trustee will
be the legal owner of such Replacement Engine free and clear of all
Liens except Liens permitted under Section 6.01 of the Lease, and
that such Replacement Engine will on such date be in at least as good
operating condition and repair as required by the terms of the Lease;
(iv) that the value of the Replacement Engine as of the date of such
certificate is not less than the value of the Engine to be released
(assuming such Engine was in the condition and repair required to be
maintained under the Lease);
(v) that the release of the Engine subject to the Event of Loss will
not impair the security of the Indenture in contravention of any of
the provisions of this Indenture;
(vi) that upon such replacement, the Lien of this Indenture will
apply to the Replacement Engine and such Lien will be a first
priority security interest in favor of the Indenture Trustee; and
(vii) that each of the conditions specified in Section 10.03, 11.03
or 11.04 of the Lease with respect to such Replacement Engine has
been satisfied.
(3) The appropriate instruments (i) transferring to the Owner
Trustee title to the Replacement Airframe or Replacement Engine to be received
as consideration for the Airframe or Engine to be released and (ii) assigning
to the Owner Trustee the benefit of all manufacturer's and vendor's
warranties, if any, generally available with respect to such Replacement
Airframe or Replacement Engine, and an Indenture and Security Agreement
Supplement subjecting such Replacement Airframe or Replacement Engine to the
Trust Agreement and to the Lien of this Indenture.
(4) A certificate from a firm of independent aircraft appraisers of
national standing satisfactory to the Indenture Trustee and the Owner Trustee
confirming the accuracy of the information set forth in clause (2)A.(vi) of
this Section 9.08.
(5) The opinion of Davis Polk & Wardwell, special counsel to the
Lessee, or other counsel reasonably satisfactory to the Indenture Trustee,
stating that:
(i) the certificates, opinions and other instruments and/or property
which have been or are therewith delivered to and deposited with the
Indenture Trustee conform to the requirements of this Indenture and the
Lease and, upon the basis of such application, the property so sold or
disposed of may be properly released from the Lien of this Indenture and
all conditions precedent herein provided for relating to such release have
been complied with; and
(ii) the Replacement Airframe or Replacement Engine has been validly
subjected to the Lien of this Indenture and covered by the Lease, the
instruments subjecting such Replacement Airframe or Replacement Engine to
the Lease and to the Lien of this Indenture, as the case may be, have been
duly filed for recordation pursuant to the Transportation Code or any other
law then applicable to the registration of the Aircraft, and no further
action, filing or recording of any document is necessary or advisable in
order to establish and perfect the title of the Owner Trustee to and the
Lien of this Indenture on such Replacement Airframe or Replacement Engine
and the Indenture Trustee would be entitled to the benefits of Section 1110
of the Bankruptcy Code with respect to such Replacement Airframe or
Replacement Engine, provided, that such opinion need not be to the effect
specified in the foregoing clause to the extent that the benefits of such
Section 1110 would not have been, by reason of a change in law or
governmental interpretation thereof after the date hereof, available to the
Indenture Trustee with respect to the Aircraft immediately prior to such
substitution had such Event of Loss not occurred.
Section 9.09. Indenture and Security Agreement Supplement for
Replacements. In the event of the substitution of a Replacement Airframe or a
Replacement Engine as contemplated by Section 10.03 or Article 11 of the
Lease, the Owner Trustee and the Indenture Trustee agree for the benefit of
the Holders and the Lessee, subject to fulfillment of the conditions precedent
and compliance by the Lessee with its obligations set forth in Section 10.03
or Article 11 of the Lease, to execute and deliver an Indenture and Security
Agreement Supplement as contemplated by Section 9.08(3) hereof and, provided
no Event of Default shall have occurred and be continuing, execute and deliver
to the Lessee an appropriate instrument releasing the Airframe or Engine being
replaced from the Lien of this Indenture.
Section 9.10. Effect of Replacement. In the event of the
substitution of a Replacement Airframe or a Replacement Engine as contemplated
by Section 10.01 or Article 11 of the Lease and Section 9.08 hereof, all
provisions of this Indenture relating to the Airframe or Engine or Engines
being replaced shall be applicable to such Replacement Airframe or Replacement
Engine or Engines with the same force and effect as if such Replacement
Airframe or Replacement Engine or Engines were the same Airframe or engine or
engines, as the case may be, as the Airframe or Engine or Engines being
replaced but for the Event of Loss with respect to the Airframe or Engine or
Engines being replaced.
Section 9.11. Compensation. The Owner Trustee covenants and agrees
to pay, and the Indenture Trustee shall be entitled to receive, reasonable
compensation and payment or reimbursement for its reasonable advances,
expenses and disbursements (including the reasonable compensation and expenses
and disbursements of its counsel, agents and other persons not regularly in
its employ) in connection with its services rendered hereunder or in any way
relating to or arising out of the administration of the Trust Indenture Estate
and shall have a priority claim on the Trust Indenture Estate for the payment
of such compensation, advances, expenses and disbursements to the extent that
such compensation, advances, expenses and disbursements shall not be paid by
the Lessee, and shall have the right to use or apply any moneys held by it
hereunder in the Trust Indenture Estate toward such payments; provided that,
so long as the Lease is in effect, the Indenture Trustee shall not make any
claim for payment under this Section 9.11 against the Owner Trustee without
first making demand on the Lessee for payment of such claim. The Indenture
Trustee agrees that it shall have no right against any Holder, SSB or the
Owner Participant for any fee as compensation for its services as trustee
under this Indenture.
ARTICLE X
CONCERNING THE HOLDERS
Section 10.01. Evidence of Action Taken by Holders. (a) Any
request, demand, authorization, direction, notice, consent, waiver or other
action provided by this Indenture to be given or taken by Holders may be
embodied in and evidenced by one or more instruments of substantially similar
tenor signed by such Holders in person or by an agent duly appointed in
writing, and, except as otherwise expressly provided herein, such action shall
become effective when such instrument or instruments are delivered to the
Indenture Trustee and, if expressly required herein, to the Owner Trustee.
Proof of execution of any instrument or of a writing appointing any such agent
shall be sufficient for any purpose of this Indenture and (subject to Sections
9.02 and 9.03 hereof) conclusive in favor of the Indenture Trustee and the
Owner Trustee, if made in the manner provided in this Article.
(b) For the purpose of determining the Holders entitled to vote or
consent to any direction, waiver or other action of such Holders under Section
7.10 or 7.11 hereof, the Lessee may set a record date for such vote or consent
by specifying such record date in an Officer's Certificate delivered to the
Indenture Trustee. Such record date shall be a date not more than 15 days
prior to the first solicitation of such vote or consent.
Section 10.02. Proof of Execution of Instruments and of Holding of
Certificates. Subject to Sections 9.02 and 9.03 hereof, the execution of any
instrument by a Holder or his agent or proxy may be proved in accordance with
such reasonable rules and regulations as may be prescribed by the Indenture
Trustee. The holding of Certificates shall be proved by the Register or by a
certificate of the Registrar.
Section 10.03. Holders to Be Treated as Owners. Prior to due
presentment for registration of transfer of any Certificate, the Owner
Trustee, the Indenture Trustee, any agent of the Owner Trustee or the
Indenture Trustee, the Paying Agent, if any, the Registrar and the Lessee
shall deem and treat the Person in whose name such Certificate shall be
registered upon the Register as the absolute owner of such Certificate
(whether or not such Certificate shall be overdue and notwithstanding any
notation of ownership or other writing thereon) for the purpose of receiving
payment of or on account of the principal of and, subject to the provisions of
this Indenture, interest on such Certificate and for all other purposes; and
neither the Owner Trustee nor the Indenture Trustee (nor any agent of the
Owner Trustee or the Indenture Trustee) nor the Paying Agent, if any, nor the
Registrar nor the Lessee shall be affected by any notice to the contrary. All
such payments so made to any such person, or upon his order, shall be valid,
and, to the extent of the sum or sums so paid, effectual to satisfy and
discharge the liability for moneys payable upon any such Certificate.
Section 10.04. Certificates Owned by Owner Trustee and the Lessee
Deemed Not Outstanding. In determining whether the Holders of the requisite
aggregate principal amount of Certificates have concurred in any direction,
consent or waiver under this Indenture, Certificates which are owned by the
Owner Trustee, any Owner Participant, SSB, the Lessee or by any Affiliate
thereof shall be disregarded and deemed not to be Outstanding for the purpose
of any such determination; provided that for the purpose of determining
whether the Indenture Trustee shall be protected in relying on any such
direction, consent or waiver, only if a Responsible Officer of the Indenture
Trustee has actual knowledge that certain Certificates are so owned by any
person directly or indirectly controlling or controlled by or under direct or
indirect common control with the Owner Trustee, such Owner Participant, SSB or
the Lessee shall such Certificates be so disregarded; and provided further
that if all Certificates which would be deemed Outstanding in the absence of
the foregoing provision are owned by the Owner Trustee, SSB or any Owner
Participant or by any Affiliate thereof, then such Certificates shall be
deemed Outstanding for the purpose of any such determination. Certificates
so owned which have been pledged in good faith may be regarded as Outstanding
if the pledgee establishes to the satisfaction of the Indenture Trustee the
pledgee's right so to act with respect to such Certificates and that the
pledgee is not the Owner Trustee, the Owner Participant, SSB or the Lessee or
any Person directly or indirectly controlling or controlled by or under direct
or indirect common control with the Owner Trustee, the Owner Participant, SSB
or the Lessee. In case of a dispute as to such right, the advice of counsel
shall be full protection in respect of any decision made by the Indenture
Trustee in accordance with such advice, unless the Lessee, the Owner Trustee,
SSB, or the Owner Participant are actually named in the Register. Upon
request of the Indenture Trustee, the Owner Trustee, the Owner Participant,
SSB and the Lessee shall furnish to the Indenture Trustee promptly an
Officer's Certificate listing and identifying all Certificates, if any, known
by the Owner Trustee, the Owner Participant, SSB or the Lessee to be owned or
held by or for the account of any of the above-described persons; and, subject
to Sections 9.02 and 9.03 hereof, the Indenture Trustee shall be entitled to
accept such Officer's Certificate as conclusive evidence of the facts set
forth therein and of the fact that all Certificates not listed therein are
outstanding for the purpose of any such determination.
Section 10.05. Right of Revocation of Action Taken. At any time
prior to (but not after) the evidencing to the Indenture Trustee, as provided
in Section 10.01, of the taking of any action by the Holders of the percentage
in aggregate principal amount of the Certificates specified in this Indenture
in connection with such action, any Holder of a Certificate, the serial number
of which is shown by the evidence to be included among the serial numbers of
the Certificates the Holders of which have consented to such action, may, by
filing written notice at the Corporate Trust Administration and upon proof of
holding as provided in this Article, revoke such action so far as concerns
such Certificate. Except as aforesaid, any such action taken by the Holder
shall be conclusive and binding upon such Holder and upon all future Holders
and owners of such Certificate and of any Certificates issued in exchange or
substitution therefor, irrespective of whether or not any notation in regard
thereto is made upon any such Certificate or otherwise. Any action taken by
the Holders of the percentage in aggregate principal amount of the
Certificates specified in this Indenture in connection with such action shall
be conclusively binding upon the Owner Trustee, the Indenture Trustee and the
Holders of all the Certificates.
Section 10.06. ERISA. Any Person, other than the Subordination
Agent, who is acquiring the Certificates will be deemed to represent and
warrant that (i) no assets of an employee benefit plan subject to Title I of
ERISA or an individual retirement account or plan subject to Section 4975 of
the Code, or any trust established under any such plan or account, have been
used to acquire or hold any of the Certificates, or (ii) that one or more
administrative or statutory exemptions from the prohibited transaction rules
under Section 406 of ERISA and Section 4975 of the Code applies to its
purchase and holding of the Certificates such that its purchase and holding of
the Certificates will not result in a non-exempt prohibited transaction under
Section 406 of ERISA and Section 4975 of the Code.
ARTICLE XI
INDEMNIFICATION OF INDENTURE
TRUSTEE BY OWNER TRUSTEE
The Owner Trustee, not individually but solely in its capacity as
Owner Trustee under the Trust Agreement, hereby agrees, whether or not any of
the transactions contemplated hereby shall be consummated, to assume liability
for, and does hereby indemnify, protect, save and keep harmless the Indenture
Trustee, in its individual capacity, and its successors, assigns, agents and
servants solely from the Lessor's Estate, with respect to the claims of the
Indenture Trustee for payment or reimbursement under Section 9.11 hereof and
from and against any and all liabilities, obligations, losses, damages,
penalties, taxes (excluding any taxes payable by the Indenture Trustee on or
measured by any compensation received by the Indenture Trustee for its
services under this Indenture), claims, actions, suits, costs, expenses or
disbursements (including legal fees and expenses) of any kind and nature
whatsoever which may be imposed on, incurred by or asserted against the
Indenture Trustee (whether or not also agreed to be indemnified against by any
other person under any other document) in any way relating to or arising out
of this Indenture, or any other Indenture Documents or the enforcement of any
of the terms of any thereof, or in any way relating to or arising out of the
manufacture, purchase, acceptance, nonacceptance, rejection, ownership,
delivery, lease, possession, use, operation, condition, sale, return or other
disposition of the Aircraft or any Engine (including, without limitation,
latent and other defects, whether or not discoverable, and any claim for
patent, trademark or copyright infringement), or in any way relating to or
arising out of the administration of the Trust Indenture Estate or the action
or inaction of the Indenture Trustee hereunder, except only (a) in the case of
willful misconduct or gross negligence of the Indenture Trustee in the
performance of its duties hereunder, (b) as may result from the inaccuracy of
any representation or warranty of the Indenture Trustee in the Participation
Agreement, (c) as otherwise provided in Section 9.02(c) hereof or (d) as
otherwise excluded by the terms of Article 8 or Article 9 of the Participation
Agreement from the Lessee's general indemnity or general tax indemnity to the
Indenture Trustee under said Articles; provided that so long as the Lease is in
effect, the Indenture Trustee shall not make any claim under this Article XI
for any claim or expense indemnified by the Lessee under the Participation
Agreement without first making demand on the Lessee for payment of such claim
or expense. The Indenture Trustee shall be entitled to indemnification, from
the Trust Indenture Estate, for any liability, obligation, loss, damage,
penalty, claim, action, suit, cost, expense or disbursement indemnified
against pursuant to this Article XI to the extent not reimbursed by the Lessee
or others, but without releasing any of them from their respective agreements
of reimbursement; and to secure the same the Indenture Trustee shall have a
prior Lien on the Trust Indenture Estate. The indemnities contained in this
Article XI shall survive the termination of this Indenture and the resignation
or removal of the Indenture Trustee. Upon payment in full by the Owner
Trustee of any indemnity pursuant to this Article XI, the Owner Trustee shall,
so long as no Indenture Event of Default shall have occurred and be
continuing, be subrogated to the rights of the Indenture Trustee, if any, in
respect of the matter as to which the indemnity was paid.
ARTICLE XII
SUCCESSOR TRUSTEES
Section 12.01. Notice of Successor Owner Trustee. In the case of any
appointment of a successor to the Owner Trustee pursuant to the Trust
Agreement or any merger, conversion, consolidation or sale of substantially
all of the corporate trust business of the Owner Trustee pursuant to the Trust
Agreement, the successor Owner Trustee shall give prompt written notice
thereof to the Indenture Trustee.
Section 12.02. Resignation and Removal of Indenture Trustee;
Appointment of Successor. (a) The Indenture Trustee or any successor thereto
may resign at any time without cause by giving at least 30 days' prior written
notice to the Owner Trustee, the Owner Participant, the Lessee and each
Holder, such resignation to be effective upon the acceptance of the
trusteeship by a successor Indenture Trustee. In addition, the Majority in
Interest of the Certificate Holders or the Owner Trustee, with the consent of
the Lessee and the Majority in Interest of the Certificate Holders may at any
time remove the Indenture Trustee without cause by an instrument in writing
delivered to the Lessee, the Owner Trustee, the Owner Participant, and the
Indenture Trustee, and the Indenture Trustee shall promptly notify each Holder
thereof of such action in writing, such removal to be effective upon the
acceptance of the trusteeship by a successor Indenture Trustee. In the case
of the resignation or removal of the Indenture Trustee, the Majority in
Interest of the Certificate Holders, or the Owner Trustee, with the consent of
the Lessee and the Majority in Interest of the Certificate Holders, may
appoint a successor Indenture Trustee by an instrument signed by such Holders.
If a successor Indenture Trustee shall not have been appointed within 30 days
after such notice of resignation or removal, the Indenture Trustee, the Owner
Trustee, the Lessee, the Owner Participant, or any Holder may apply to any
court of competent jurisdiction to appoint a successor Indenture Trustee to
act until such time, if any, as a successor shall have been appointed as
provided above. The successor Indenture Trustee so appointed by such court
shall immediately and without further act be superseded by any successor
Indenture Trustee appointed as provided above.
(b) In case at any time any of the following shall occur:
(i) the Indenture Trustee shall cease to be eligible in accordance
with the provisions of Section 12.03 hereof and shall fail to resign after
written request therefor by the Owner Trustee or by any Holder; or
(ii) the Indenture Trustee shall become incapable of acting, or shall
be adjudged a bankrupt or insolvent, or a receiver or liquidator of the
Indenture Trustee or of its property shall be appointed, or any public
officer shall take charge or control of the Indenture Trustee or of its
property or affairs for the purpose of rehabilitation, conservation or
liquidation;
then the Owner Trustee may remove the Indenture Trustee and, with the consent
of the Lessee, appoint a successor trustee by written instrument, in
duplicate, executed by a Responsible Officer of the Owner Trustee, one copy of
which instrument shall be delivered to the Indenture Trustee so removed and
one copy to the successor trustee, or, subject to the provisions of Section
7.13 hereof, any Holder who has been a bona fide Holder 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 Indenture Trustee
and the appointment of a successor trustee. Such court may thereupon, after
such notice, if any, as it may deem proper and prescribe, remove the Indenture
Trustee and appoint a successor trustee, which removal and appointment shall
become effective upon acceptance of appointment by the successor trustee as
provided in Section 12.04 hereof. The successor Indenture Trustee so
appointed by such court shall immediately and without further act be
superseded by any successor Indenture Trustee appointed as provided above
within one year from the date of appointment by such court.
Section 12.03. Persons Eligible for Appointment as Indenture
Trustee. There shall at all times be an Indenture Trustee hereunder which
shall be (i)(x) a bank or trust company organized and doing business under the
laws of the United States of America or any state or the District of Columbia
having a combined capital and surplus of at least $100,000,000 or (y) a bank
or trust company whose obligations hereunder are fully guaranteed by a direct
or indirect parent thereof having a combined capital and surplus of at least
$100,000,000 and (ii) a Citizen of the United States authorized under
applicable law to exercise corporate trust powers and subject to supervision of
examination by Federal, state or District of Columbia authority. If such
corporation publishes reports of condition at least annually, pursuant to law
or to the requirements of the aforesaid supervising or examining authority,
then for the purposes of this Section, 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 condition so published. In case at any
time the Indenture Trustee shall cease to be eligible in accordance with the
provisions of this Section, the Indenture Trustee shall resign immediately in
the manner and with the effect specified in Section 12.02 hereof.
Section 12.04. Acceptance of Appointment by Successor Trustee. Any
successor trustee appointed as provided in Section 12.02 hereof shall execute
and deliver to the Owner Trustee, the Lessee, and to its predecessor trustee
an instrument accepting such appointment hereunder, in form and substance
reasonably satisfactory to the Owner Trustee, and thereupon the resignation or
removal of the predecessor trustee shall become effective and such successor
trustee, without any further act, deed or conveyance, shall become vested with
all rights, powers, duties and obligations of its predecessor hereunder, with
like effect as if originally named as trustee herein; but, nevertheless, on
the written request of the Owner Trustee or of the successor trustee, upon
payment of its charges then unpaid, the trustee ceasing to act shall, subject
to Section 14.04 hereof, pay over to the successor trustee all moneys at the
time held by it hereunder and shall execute and deliver an instrument
transferring to such successor trustee all such rights, powers, duties and
obligations. Upon request of any such successor trustee, the Owner Trustee
shall execute any and all instruments in writing for more fully and certainly
vesting in and confirming to such successor trustee all such rights and
powers. Any trustee ceasing to act shall, nevertheless, retain a prior claim
upon all property or funds held or collected by such trustee to secure any
amounts then due it pursuant to the provisions of Article XI hereof.
No successor trustee shall accept appointment as provided in this
Section 12.04 unless at the time of such acceptance such successor trustee
shall be eligible under the provisions of Section 12.03 hereof.
Upon acceptance of appointment by a successor trustee as provided in
this Section 12.04, the successor trustee shall mail notice thereof by
first-class mail to the Holders at their last addresses as they shall appear
in the Register, and shall mail a copy of such notice to the Lessee and the
Owner Trustee. If the acceptance of appointment is substantially
contemporaneous with the resignation, then the notice called for by the
preceding sentence may be combined with the notice called for by Section 12.02
hereof.
Section 12.05. Merger, Conversion, Consolidation or Succession to
Business of Indenture Trustee. Any corporation into which the Indenture
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 Indenture Trustee shall be a party, or any corporation succeeding to
the corporate trust business of the Indenture Trustee, shall be the successor
to the Indenture Trustee hereunder, provided that, anything herein to the
contrary notwithstanding, such corporation shall be eligible under the
provisions of Section 12.03 hereof, without the execution or filing of any
paper or any further act on the part of any of the parties hereto.
In case at the time such successor to the Indenture Trustee shall
succeed to the trusts created by this Indenture any of the Certificates shall
have been authenticated but not delivered, any such successor to the Indenture
Trustee may adopt the certificate of authentication of any predecessor
Indenture Trustee and deliver such Certificates so authenticated; and, in case
at that time any of the Certificates shall not have been authenticated, any
successor to the Indenture Trustee may authenticate such Certificates either
in the name of any predecessor hereunder or in the name of the successor
Indenture Trustee; and in all such cases such certificate shall have the full
force which it is anywhere in the Certificates or in this Indenture provided
that the certificate of the Indenture Trustee shall have; provided, that the
right to adopt the certificate of authentication of any predecessor Indenture
Trustee or to authenticate Certificates in the name of any predecessor
Indenture Trustee shall apply only to its successor or successors by merger,
conversion or consolidation.
Section 12.06. Appointment of Separate Trustees. (a) At any time or
times, for the purpose of meeting any legal requirements of any jurisdiction
in which any part of the Trust Indenture Estate may at the time be located or
in which any action of the Indenture Trustee may be required to be performed
or taken, the Indenture Trustee, by an instrument in writing signed by it, may
appoint one or more individuals or corporations to act as a separate trustee
or separate trustees or co-trustee, acting jointly with the Indenture Trustee,
of all or any part of the Trust Indenture Estate, to the full extent that
local law makes it necessary for such separate trustee or separate trustees or
co-trustee acting jointly with the Indenture Trustee to act.
(b) The Indenture Trustee and, at the request of the Indenture
Trustee, the Owner Trustee, shall execute, acknowledge and deliver all such
instruments as may be required by the legal requirements of any jurisdiction
or by any such separate trustee or separate trustees or co-trustee for the
purpose of more fully confirming such title, rights or duties to such separate
trustee or separate trustees or co-trustee. Upon the acceptance in writing of
such appointment by any such separate trustee or separate trustees or
co-trustee, it, he or they shall be vested with such title to the Trust
Indenture Estate or any part thereof, and with such rights, powers, duties and
obligations, as shall be specified in the instrument of appointment, and such
rights, powers, duties and obligations shall be conferred or imposed upon and
exercised or performed by the Indenture Trustee, or the Indenture Trustee and
such separate trustee or separate trustees or co-trustee jointly with the
Indenture Trustee subject to all the terms of this Indenture, except to the
extent that under any law of any jurisdiction in which any particular act or
acts are to be performed the Indenture Trustee shall be incompetent or
unqualified to perform such act or acts, in which event such rights, powers,
duties and obligations shall be exercised and performed by such separate
trustee or separate trustees or co-trustee, as the case may be. Any separate
trustee or separate trustees or co-trustee may, at any time by an instrument
in writing, constitute the Indenture Trustee its or his attorney-in-fact and
agent with full power and authority to do all acts and things and to exercise
all discretion on its or his behalf and in its or his name. In case any such
separate trustee or co-trustee shall die, become incapable of acting, resign
or be removed, the title to the Trust Indenture Estate and all assets,
property, rights, powers, duties and obligations and duties of such separate
trustee or co-trustee shall, so far as permitted by law, vest in and be
exercised by the Indenture Trustee, without the appointment of a successor to
such separate trustee or co-trustee unless and until a successor is appointed.
(c) All provisions of this Indenture which are for the benefit of
the Indenture Trustee (including without limitation Article XI hereof) shall
extend to and apply to each separate trustee or co-trustee appointed pursuant
to the foregoing provisions of this Section 12.06.
(d) Every additional trustee and separate trustee hereunder shall,
to the extent permitted by law, be appointed and act and the Indenture Trustee
shall act, subject to the following provisions and conditions:
(i) all powers, duties, obligations and rights conferred upon the
Indenture Trustee in respect of the receipt, custody, investment and
payment of moneys shall be exercised solely by the Indenture Trustee;
(ii) all other rights, powers, duties and obligations conferred or
imposed upon the Indenture Trustee shall be conferred or imposed and
exercised or performed by the Indenture Trustee and such additional trustee
or trustees and separate trustee or trustees jointly except to the extent
that under any law of any jurisdiction in which any particular act or acts
are to be performed, the Indenture Trustee shall be incompetent or
unqualified to perform such act or acts, in which event such rights,
powers, duties and obligations (including the holding of title to the Trust
Indenture Estate in any such jurisdiction) shall be exercised and performed
by such additional trustee or trustees or separate trustee or trustees;
(iii) no power hereby given to, or exercisable by, any such additional
trustee or separate trustee shall be exercised hereunder by such additional
trustee or separate trustee except jointly with, or with the consent of,
the Indenture Trustee; and
(iv) no trustee hereunder shall be liable either personally or in its
capacity as such trustee, by reason of any act or omission of any other
trustee hereunder.
If at any time the Indenture Trustee shall deem it no longer necessary or
prudent in order to conform to any such law, the Indenture Trustee shall
execute and deliver an indenture supplemental hereto and all other instruments
and agreements necessary or proper to remove any additional trustee or
separate trustee.
(e) Any request, approval or consent in writing by the Indenture
Trustee to any additional trustee or separate trustee shall be sufficient
warrant to such additional trustee or separate trustee, as the case may be, to
take such action as may be so requested, approved or consented to.
(f) Notwithstanding any other provision of this Section 12.06, the
powers of any additional trustee or separate trustee shall not exceed those of
the Indenture Trustee hereunder.
ARTICLE XIII
SUPPLEMENTS AND AMENDMENTS TO THIS
TRUST INDENTURE AND OTHER DOCUMENTS
Section 13.01. Supplemental Indentures Without Consent of Holders.
The Owner Trustee (when authorized by the Owner Participant) and the Indenture
Trustee, without consent of the Holders, may enter into an indenture or
indentures supplemental hereto for one or more of the following purposes:
(a) to convey, transfer, assign, mortgage or pledge any property or
assets to the Indenture Trustee as security for the Certificates;
(b) to evidence the succession of another corporation to the Owner
Trustee or successive successions, and the assumption by the successor
corporation of the covenants, agreements and obligations of the Owner
Trustee herein and in the Certificates;
(c) to add to the covenants of the Owner Trustee such further
covenants, restrictions, conditions or provisions as it and the Indenture
Trustee shall consider to be for the protection of the Holders, and to make
the occurrence, or the occurrence and continuance, of a default in any such
additional covenants, restrictions, conditions or provisions an Indenture
Event of Default permitting the enforcement of all or any of the several
remedies provided herein; provided, that in respect of any such additional
covenant, restriction, condition or provision such supplemental indenture
may provide for a particular period of grace after default (which period
may be shorter or longer than that allowed in the case of other defaults)
or may provide for an immediate enforcement upon such an Indenture Event of
Default or may limit the remedies available to the Indenture Trustee upon
such an Indenture Event of Default or may limit the right of not less than
the Majority in Interest of Certificate Holders to waive such an Indenture
Event of Default;
(d) to surrender any right or power conferred herein upon the Owner
Trustee or the Owner Participant;
(e) to cure any ambiguity or to correct or supplement any provision
contained herein or in any supplemental indenture which may be defective or
inconsistent with any other provision contained herein or in any
supplemental indenture; or to make such other provisions in regard to
matters or questions arising under this Indenture or under any supplemental
indenture as the Owner Trustee may deem necessary or desirable and which
shall not adversely affect the interests of the Holders;
(f) to correct or amplify the description of any property at any
time subject to the Lien of this Indenture or better to assure, convey and
confirm unto the Indenture Trustee any property subject or required to be
subject to the Lien of this Indenture or to subject Replacement Airframe or
Replacement Engines to the Lien of this Indenture in accordance with the
provisions hereof or with the Lease or to release from the Lien of this
Indenture property that has been substituted on or removed from the
Aircraft as contemplated in Section 3.07 hereof; provided that supplements
to this Indenture entered into for the purpose of subjecting Replacement
Airframe or Replacement Engines to the Lien of this Indenture need only be
executed by the Owner Trustee and the Indenture Trustee;
(g) to provide for the issuance under this Indenture of Certificates
in coupon form (including Certificates registrable as to principal only)
and to provide for exchangeability of such Certificates with Certificates
issued hereunder in fully registered form, and to make all appropriate
changes for such purpose;
(h) to effect the re-registration of the Aircraft pursuant to
Section 6.03(b) of the Participation Agreement;
(i) to add, eliminate or change any provision hereunder so long as
such action shall not adversely affect the interests of the Holders; and
(j) to effect the amendments contemplated by Section 2.03 of the
Participation Agreement, subject to the limitations set forth therein.
The Indenture Trustee is hereby authorized to join in the execution
of any such supplemental indenture, to make any further appropriate agreements
and stipulations which may be contained therein and to accept the conveyance,
transfer, assignment, mortgage or pledge of any property thereunder, but the
Indenture Trustee shall not be obligated to enter into any such supplemental
indenture which adversely affects the Indenture Trustee's own rights, duties
or immunities under this Indenture or otherwise.
Any such supplemental indenture may be executed without the consent of
the Holders of Outstanding Certificates, notwithstanding any of the provisions
of Section 13.02 hereof.
Section 13.02. Supplemental Indentures With Consent of Holders.
With the consent (evidenced as provided in Article X) of the Majority in
Interest of Certificate Holders, the Owner Trustee (when authorized by the
Owner Participant) and the Indenture Trustee may, from time to time and at any
time, enter into an indenture or indentures supplemental hereto for the
purpose of adding any provisions to or changing in any manner or eliminating
any of the provisions of this Indenture or of any supplemental indenture or of
modifying in any manner the rights of the Holders; provided, however, that,
without the consent of each and every Holder and each Liquidity Provider, no
such amendment of or supplement to this Indenture or any indenture
supplemental hereto, or modification of the terms of, or consent under, any
thereof, shall (a) modify any of the provisions of Section 7.11 hereof or this
Section 13.02, (b) reduce the amount or extend the time of payment of any
amount owing or payable under any Certificate or reduce the interest payable
on any Certificate (except that only the consent of the Holder shall be
required for any decrease in any amounts of or the rate of interest payable on
such Certificate or any extension for the time of payment of any amount
payable under such Certificate), or alter or modify the provisions of Article
V hereof with respect to the order of priorities in which distributions
thereunder shall be made as among Holders of different Series of Certificates
or as between the Holder and the Owner Trustee or the Owner Participant or
with respect to the amount or time of payment of any such distribution, or
alter or modify the circumstances under which a Make-Whole Premium shall be
payable, or alter the currency in which any amount payable under any
Certificate is to be paid, or impair the right of any Holder to commence legal
proceedings to enforce a right to receive payment hereunder, (c) reduce,
modify or amend any indemnities in favor of any Holder or in favor of or to be
paid by the Owner Participant (except as consented to by each Person adversely
affected thereby), or (d) create or permit the creation of any Lien on the
Trust Indenture Estate or any part thereof prior to or pari passu with the
Lien of this Indenture, except as expressly permitted herein, or deprive any
Holder of the benefit of the Lien of this Indenture on the Trust Indenture
Estate, except as provided in Section 7.02 hereof or in connection with the
exercise of remedies under Article VII. This Section 13.02 shall not apply to
any indenture or indentures supplemental hereto permitted by, and complying
with the terms of, Section 13.06 hereof.
Upon the request of the Owner Trustee (at the direction of the Owner
Participant) and upon the filing with the Indenture Trustee of evidence of the
consent of Holders and other documents, if any, required by Section 10.01, the
Indenture Trustee shall join with the Owner Trustee and the Lessee in the
execution of such supplemental indenture unless such supplemental indenture
affects the Indenture Trustee's own rights, duties or immunities under this
Indenture or otherwise, in which case the Indenture Trustee may in its
discretion, but shall not be obligated to, enter into such supplemental
indenture.
It shall not be necessary for the consent of the Holders under this
Section to approve the particular form of any proposed supplemental indenture,
but it shall be sufficient if such consent shall approve the substance
thereof.
Promptly after the execution by the Owner Trustee, the Indenture
Trustee and the Lessee of any supplemental indenture pursuant to the
provisions of this Section, the Indenture Trustee shall mail a notice thereof
by first-class mail to the Holders at their addresses as they shall appear on
the registry books of the Registrar, setting forth in general terms the
substance of such supplemental indenture. Any failure of the Indenture
Trustee to mail such notice, or any defect therein, shall not, however, in any
way impair or affect the validity of any such supplemental indenture.
Section 13.03. Effect of Supplemental Indenture. Upon the execution
of any supplemental indenture pursuant to the provisions hereof, this
Indenture shall be and be deemed to be modified and amended in accordance
therewith and the respective rights, limitations of rights, obligations,
duties and immunities under this Indenture of the Indenture Trustee, the Owner
Trustee, the Lessee and the Holders shall thereafter be determined, exercised
and enforced hereunder subject in all respects to such modifications and
amendments, and all the terms and conditions of any such supplemental
indenture shall be and be deemed to be part of the terms and conditions of
this Indenture for any and all purposes.
Section 13.04. Documents to Be Given to Indenture Trustee. The
Indenture Trustee, subject to the provisions of Sections 9.02 and 9.03, may
receive an Officer's Certificate and an Opinion of Counsel as conclusive
evidence that any such supplemental indenture complies with the applicable
provisions of this Indenture.
Section 13.05. Notation on Certificates in Respect of Supplemental
Indentures. Certificates authenticated and delivered after the execution of
any supplemental indenture pursuant to the provisions of this Article may bear
a notation in form approved by the Indenture Trustee as to any matter provided
for by such supplemental indenture. If the Owner Trustee or the Indenture
Trustee shall so determine, new Certificates so modified as to conform, in the
opinion of the Owner Trustee and the Indenture Trustee, to any modification of
this Indenture contained in any such supplemental indenture may be prepared by
the Owner Trustee, authenticated by the Indenture Trustee and delivered in
exchange for the Outstanding Certificates.
Section 13.06. No Request Necessary for Lease Supplement or Indenture
and Security Agreement Supplement. Notwithstanding anything contained in
Section 13.02 hereof, no written request or consent of the Indenture Trustee,
any Holder or the Owner Participant pursuant to Section 13.02 hereof shall be
required to enable the Owner Trustee to enter into any supplement to the Lease
with the Lessee in accordance with the terms and conditions of the Lease to
subject a Replacement Airframe or Replacement Engine thereto or to execute and
deliver an Indenture and Security Agreement Supplement pursuant to the terms
hereof.
Section 13.07. Notices to Liquidity Providers. Any request made to
any Holder for consent to any amendment, supplement or waiver pursuant to
Section 7.11, 8.01 or this Article XIII shall be promptly furnished by the
Indenture Trustee to each Liquidity Provider.
ARTICLE XIV
SATISFACTION AND DISCHARGE OF INDENTURE;
UNCLAIMED MONEYS
Section 14.01. Satisfaction and Discharge of Indenture; Termination
of Indenture. If at any time after (a) the Owner Trustee shall have paid or
caused to be paid the principal of and interest on all the Certificates
outstanding hereunder, as and when the same shall have become due and payable,
or (b) the Owner Trustee shall have delivered to the Indenture Trustee for
cancellation all Certificates theretofore authenticated (other than any
Certificates which shall have been destroyed, lost or stolen and which shall
have been replaced or paid as provided in Section 2.07 hereof) or (c) (i) all
such Certificates not theretofore delivered to the Indenture Trustee for
cancellation shall have become due and payable, or are by their terms to
become due and payable within one year or are to be called for prepayment
within one year under arrangements satisfactory to the Indenture Trustee for
the giving of notice of prepayment by the Indenture Trustee in the name and at
the expense of the Owner Trustee, and (ii) the Owner Trustee shall have
irrevocably deposited or caused to be deposited with the Indenture Trustee as
trust funds the entire amount in cash (other than moneys repaid by the
Indenture Trustee or any paying agent to the Owner Trustee in accordance with
Section 14.04 hereof) or Government obligations maturing as to principal and
interest in such amounts and at such times as will insure the availability of
cash sufficient to pay at maturity all such Certificates not theretofore
delivered to the Indenture Trustee for cancellation, including principal and
interest due or to become due to such date of maturity as the case may be, and
if, in any such case, the Owner Trustee shall also pay or cause to be paid all
other sums then payable hereunder by the Owner Trustee, then this Indenture
shall cease to be of further effect (except in the case of (c) above as to (A)
rights of registration of transfer and exchange, and the Owner Trustee's right
of optional prepayment pursuant to Section 6.02(a)(ii) hereof, (B)
substitution of mutilated, defaced, destroyed, lost or stolen Certificates,
(C) rights of Holders to receive payments of principal thereof and interest
thereon, upon the original stated due dates therefor (but not upon
acceleration), (D) the rights, obligations, indemnities and immunities of the
Indenture Trustee hereunder and (E) the rights of the Holders as beneficiaries
hereof with respect to the property so deposited with the Indenture Trustee
payable to all or any of them), and the Indenture Trustee, on demand of the
Owner Trustee accompanied by an Officer's Certificate and an Opinion of
Counsel (covering such matters reasonably requested by, and in form and
substance reasonably satisfactory to, the Indenture Trustee) and at the cost
and expense of the Owner Trustee, shall execute proper instruments
acknowledging such satisfaction of and discharging this Indenture. The Owner
Trustee agrees to reimburse and indemnify the Indenture Trustee for any costs
or expenses thereafter reasonably and properly incurred and to compensate the
Indenture Trustee for any services thereafter reasonably and properly rendered
by the Indenture Trustee in connection with this Indenture or the
Certificates.
Upon (or at any time after) payment in full to the Indenture Trustee,
as trust funds, of the principal of and interest on and Make-Whole Premium, if
any, and all other amounts due hereunder and under all Certificates and
provided that there shall then be no other amounts due to the Indenture
Trustee hereunder or under the Participation Agreement or otherwise secured
hereby, the Owner Trustee shall direct the Indenture Trustee to execute and
deliver to or as directed in writing by the Owner Trustee an appropriate
instrument releasing the Aircraft from the Lien of this Indenture and
releasing the Indenture Documents from the assignment thereof hereunder, and
the Indenture Trustee shall execute and deliver such instrument as aforesaid
and, at the Owner Trustee's expense, will execute and deliver such other
instruments or documents as may be reasonably requested by the Owner Trustee
to give effect to such release; provided, however, that this Indenture and the
trusts created hereby shall terminate earlier and this Indenture shall be of
no further force or effect upon any sale or other final disposition by the
Indenture Trustee of all property forming a part of the Trust Indenture Estate
and the final distribution by the Indenture Trustee of all moneys or other
property or proceeds constituting part of the Trust Indenture Estate in
accordance with the terms hereof. Except as aforesaid otherwise provided, this
Indenture and the trusts created hereby shall continue in full force and
effect in accordance with the terms hereof.
Section 14.02. Application by Indenture Trustee of Funds Deposited
for Payment of Certificates. Subject to Section 14.04 hereof, all moneys
deposited with the Indenture Trustee pursuant to Section 14.01 hereof shall be
held in trust and applied by it to the prompt payment, either directly or
through any Paying Agent, to the Holders of the particular Certificates for
the payment or prepayment of which such moneys have been deposited with the
Indenture Trustee, of all sums due and to become due thereon for principal,
interest and Make-Whole Premium, if any, but such money need not be segregated
from other funds except to the extent required by law.
Section 14.03. Repayment of Moneys Held by Paying Agent. Upon the
satisfaction and discharge of this Indenture all moneys then held by any
Paying Agent under the provisions of this Indenture shall, upon demand of the
Owner Trustee, be repaid to it or paid to the Indenture Trustee and thereupon
such Paying Agent shall be released from all further liability with respect to
such moneys.
Section 14.04. Transfer of Moneys Held by Indenture Trustee and
Paying Agent Unclaimed for Two Years and Eleven Months. Any moneys deposited
with or paid to the Indenture Trustee or any Paying Agent for the payment of
the principal of or interest or Make-Whole Premium on any Certificate and not
applied but remaining unclaimed for two years and eleven months after the date
upon which such principal, interest or Make-Whole Premium shall have become
due and payable, shall, unless otherwise required by mandatory provisions of
applicable escheat or abandoned or unclaimed property law, be paid to the
Owner Trustee (or, if the Trust Agreement shall no longer be in effect, to the
Owner Participant) by the Indenture Trustee or such Paying Agent and the
Holder of such Certificate, as a general unsecured creditor, shall, unless
otherwise required by mandatory provisions of applicable escheat or abandoned
or unclaimed property laws, thereafter look only to the Owner Trustee (or the
Owner Participant) for any payment which such Holder may be entitled to
collect, and all liability of the Indenture Trustee, or any Paying Agent with
respect to such moneys shall thereupon cease.
ARTICLE XV
MISCELLANEOUS
Section 15.01. Capacity in Which Acting. Each of SSB (or its
permitted successors or assigns) and the Indenture Trustee acts hereunder not
in its individual capacity but solely as trustee except as expressly provided
herein and in the other Operative Documents, and, in the case of SSB (or its
permitted successors or assigns), in the Trust Agreement.
Section 15.02. No Legal Title to Trust Indenture Estate in Holders.
No Holder shall have legal title to any part of the Trust Indenture Estate.
No transfer, by operation of law or otherwise, of any Certificate or other
right, title and interest of any Holder in and to the Trust Indenture Estate
or hereunder shall operate to terminate this Indenture or entitle such Holder
or any successor or transferee of such Holder to an accounting or to the
transfer to it of legal title to any part of the Trust Indenture Estate.
Section 15.03. Sale of Trust Indenture Estate by Indenture Trustee is
Binding. Any sale or other conveyance of all or any part of the Trust
Indenture Estate by the Indenture Trustee made pursuant to the terms of this
Indenture or of the Lease shall bind the Lessee, the Owner Trustee, the
Holders and the Owner Participant and shall be effective to transfer or convey
all right, title and interest of the Indenture Trustee, the Owner Trustee, the
Owner Participant and such Holders therein and thereto. No purchaser or other
grantee shall be required to inquire as to the authorization, necessity,
expediency or regularity of such sale or conveyance or as to the application
of any sale or other proceeds with respect thereto by the Indenture Trustee.
Section 15.04. Indenture for Benefit of Owner Trustee, Indenture
Trustee, Owner Participant, Holders and Liquidity Providers. Nothing in this
Indenture, whether express or implied, shall be construed to give to any
person other than SSB, the Owner Trustee, the Lessee, the Indenture Trustee,
as trustee and in its individual capacity, the Owner Participant, each
Liquidity Provider and the Holders any legal or equitable right, remedy or
claim under or in respect of this Indenture. Upon termination of this
Indenture pursuant to Article XIV hereof, the Indenture Trustee in connection
with the satisfaction of the Indenture shall return to the Owner Trustee all
property (and related documents and instruments) constituting or evidencing
the Trust Indenture Estate.
Section 15.05. No Action Contrary to the Lessee's Rights Under the
Lease. Notwithstanding any of the provisions of this Indenture or the Trust
Agreement to the contrary, so long as no Event of Default shall have occurred
and be continuing, neither the Indenture Trustee nor the Owner Trustee will
take any affirmative acts that interfere with the peaceful and quiet
possession and enjoyment of the Aircraft by the Lessee.
Section 15.06. Notices. Unless otherwise expressly specified or
permitted by the terms hereof, all notices, requests, demands, authorizations,
directions, consents, waivers or documents provided or permitted by this
Indenture to be made, given, furnished or filed shall be in writing, mailed by
certified mail, postage prepaid, or by confirmed telecopy, and (a) if to the
Owner Trustee, addressed to it c/o State Street Bank and Trust Company, Two
International Place, 4th Floor, Boston, Massachusetts 02110 (telephone: (617)
664-5526, facsimile: (617) 664-5371), Attention: Corporate Trust Department
(with a copy to the Owner Participant at the address provided for notice
pursuant to Section 14.01 of the Participation Agreement), (b) if personally
delivered to the Indenture Trustee, addressed to it at its office at 79 South
Main Street, Salt Lake City, Utah 84111 (telephone: (801) 246-5630, facsimile:
(801) 246-5053), Attention: Corporate Trust Department or (c) if to the Owner
Participant, a Liquidity Provider or the Lessee, addressed to such party at
such address as such party shall have furnished by notice to the Owner Trustee
and the Indenture Trustee, or, until an address is so furnished, addressed to
the address of such party if any, set forth in Section 14.01 of the
Participation Agreement. Any party hereto may change the address to which
notices to such party will be sent by giving notice of such change to the
other parties to this Indenture.
Where this Indenture provides for notice to Holders, such notice
shall be sufficiently given (unless otherwise expressly provided herein) if in
writing and mailed, first-class postage prepaid, to each Holder entitled
thereto, at such Holder's last address as it appears in the Register. In any
case where notice to Holders is given by mail, neither the failure to mail
such notice, nor any defect in any notice so mailed, to any particular Holder
shall affect the sufficiency of such notice with respect to other Holders.
Where this Indenture provides for notice in any manner, such notice may be
waived in writing by the person entitled to receive such notice, either before
or after the event, and such waiver shall be the equivalent of such notice.
Waivers of notice by Holders shall be filed with the Indenture Trustee, but
such filing shall not be a condition precedent to the validity of any action
taken in reliance upon such waiver.
In case, by reason of the suspension of or irregularities in regular
mail service, it shall be impracticable to mail notice to the Owner Trustee
and Holders when such notice is required to be given pursuant to any provision
of this Indenture, then any manner of giving such notice as shall be
satisfactory to the Indenture Trustee shall be deemed to be a sufficient
giving of such notice.
Section 15.07. Officer's Certificates and Opinions of Counsel;
Statements to Be Contained Therein. Upon any application or demand by the
Lessee or the Owner Trustee to the Indenture Trustee to take any action under
any of the provisions of this Indenture, the Lessee or the Owner Trustee, as
the case may be, shall furnish to the Indenture Trustee upon request (a) an
Officer's Certificate stating that all conditions precedent provided for in
this Indenture relating to the proposed action have been complied with and
that the proposed action is in conformity with the requirements of this
Indenture, and (b) 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 demand as to which the furnishing
of such documents is specifically required by any provision of this Indenture
relating to such particular application or demand, no additional certificate
or opinion need be furnished.
Any certificate, statement or opinion of an officer of SSB may be
based, insofar as it relates to legal matters, upon a certificate or opinion
of or representations by counsel, unless such officer knows that the
certificate or opinion or representations with respect to the matters upon
which his certificate, statement or opinion may be based as aforesaid are
erroneous, or in the exercise of reasonable care should know that the same are
erroneous. Any certificate, statement or opinion of counsel may be based,
insofar as it relates to factual matters information with respect to which is
in the possession of the Lessee or SSB, upon the certificate, statement or
opinion of or representations by an officer or officers of the Lessee or SSB,
as the case may be, unless such counsel knows that the certificate, statement
or opinion or representations with respect to the matters upon which his
certificate, statement or opinion may be based as aforesaid are erroneous, or
in the exercise of reasonable care should know that the same are erroneous.
Any certificate, statement or opinion of an officer of the Lessee or
SSB or of counsel thereto may be based, insofar as it relates to accounting
matters, upon a certificate or opinion of or representations by an accountant
or firm of accountants employed by the Lessee or the Owner Trustee, as the
case may be, unless such officer or counsel, as the case may be, knows that
the certificate or opinion or representations with respect to the accounting
matters upon which his certificate, statement or opinion may be based as
aforesaid are erroneous, or in the exercise of reasonable care should know
that the same are erroneous.
Any certificate or opinion of any independent firm of public
accountants filed with the Indenture Trustee shall contain a statement that
such firm is independent.
Section 15.08. Severability. Any provision of this Indenture which
is prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and any
such prohibition or unenforceability in any jurisdiction shall not invalidate
or render unenforceable such provision in any other jurisdiction.
Section 15.09. No Oral Modifications or Continuing Waivers. No
terms or provisions of this Indenture or the Certificates may be changed,
waived, discharged or terminated orally, but only by an instrument in writing
signed by the party or other person against whom enforcement of the change,
waiver, discharge or termination is sought; and any waiver of the terms hereof
or of any Certificate shall be effective only in the specific instance and for
the specific purpose given.
Section 15.10. Successors and Assigns. All covenants and agreements
contained herein shall be binding upon, and inure to the benefit of, each of
the parties hereto and the successors and permitted assigns of each, all as
herein provided. Any request, notice, direction, consent, waiver or other
instrument or action by any Holder shall bind the successors and assigns of
such Holder. This Indenture and the Trust Indenture Estate shall not be
affected by any amendment or supplement to the Trust Agreement or by any other
action taken under or in respect of the Trust Agreement, except that each
reference in this Indenture to the Trust Agreement shall mean the Trust
Agreement as amended and supplemented from time to time to the extent
permitted hereby and thereby.
Section 15.11. Headings. The headings of the various Articles and
Sections herein and in the table of contents hereto are for the convenience of
reference only and shall not define or limit any of the terms or provisions
hereof.
Section 15.12. Normal Commercial Relations. Anything contained in
this Indenture to the contrary notwithstanding, the Owner Participant, the
Indenture Trustee and any Holder, or any bank or other affiliate of any such
party, may conduct any banking or other financial transactions, and have
banking or other commercial relationships, with the Lessee fully to the same
extent as if this Indenture were not in effect, including without limitation
the making of loans or other extensions of credit to the Lessee for any
purpose whatsoever, whether related to any of the transactions contemplated
hereby or otherwise.
Section 15.13. Governing Law; Counterparts. THIS INDENTURE AND
EACH CERTIFICATE SHALL IN ALL RESPECTS BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK, INCLUDING ALL MATTERS OF
CONSTRUCTION, VALIDITY AND PERFORMANCE. This Indenture may be executed by the
parties hereto in separate counterparts, each of which when so executed and
delivered shall be an original, but all such counterparts shall together
constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed this 28th day of May, 1997 by their respective officers
thereunto duly authorized and acknowledge that this Indenture has been made
and delivered in the City of New York, and this Indenture shall be effective
only upon such execution and delivery.
STATE STREET BANK AND TRUST COMPANY
OF CONNECTICUT, NATIONAL ASSOCIATION,
not in its individual capacity,
except as specifically set forth herein
but solely as Owner Trustee
By
--------------------------------------
Name: Paul D. Allen
Title: Vice President
FIRST SECURITY BANK,
NATIONAL ASSOCIATION,
not in its individual capacity,
but solely as Indenture Trustee
By
--------------------------------------
Name: Greg A. Hawley
Title: Vice President
Exhibit A
to
Trust Indenture and Security Agreement
Indenture and Security Agreement Supplement
Indenture and Security Agreement Supplement (Federal Express
Corporation Trust No. N584FE) dated ________, ____, of STATE STREET BANK AND
TRUST COMPANY OF CONNECTICUT, NATIONAL ASSOCIATION, a national banking
association, not in its individual capacity but solely as owner trustee
(herein called the "Owner Trustee") under the Trust Agreement dated as of May
1, 1997 (the "Trust Agreement") between State Street Bank and Trust Company of
Connecticut, National Association and the Owner Participant named therein.
W I T N E S S E T H :
-------------------
WHEREAS, the Trust Agreement provides for the execution and delivery
of this Indenture and Security Agreement Supplement which shall particularly
describe the Aircraft and any Replacement Airframe or Replacement Engine
included in the property covered by the Trust Agreement.
WHEREAS, the Trust Indenture and Security Agreement (Federal Express
Corporation Trust No. N584FE) dated as of May 1, 1997 (the "Indenture") between
the Owner Trustee and First Security Bank, National Association (herein called
the "Indenture Trustee") provides for the execution and delivery of an
Indenture and Security Agreement Supplement substantially in the form of this
Indenture and Security Agreement Supplement No. __, which Supplement shall
particularly describe the Aircraft included in the Trust Indenture Estate, and
shall specifically mortgage such Aircraft to the Indenture Trustee.
(1)WHEREAS, the Indenture relates to the Aircraft and the Engines
described in the following paragraph and a counterpart of the Indenture is
attached to and made a part of this Indenture and Security Agreement
Supplement No. 1, and this Indenture and Security Agreement Supplement No. 1,
together with such attachment, is being filed for recordation on or promptly
after the date of this Supplement No. 1 with the Federal Aviation
Administration as one document.
- ------------
(1) This recital is to be included only in the first Indenture Supplement.
(2)Whereas, the Indenture and Indenture and Security Agreement
Supplement No. ___ dated _________________, ______ (the Indenture being
attached to and made a part of such Indenture and Security Agreement
Supplement and filed therewith) have been duly recorded pursuant to Subtitle
VII of Title 49 of the United States Code, on ____________, _____, as one
document and have been assigned Conveyance No. _________.
- ------------
(2) This recital is not to be included in the first Indenture Supplement.
NOW, THEREFORE, this Supplement witnesseth, that, to secure the prompt
payment of the principal of and Make-Whole Premium, if any, and interest on,
and all other amounts due with respect to, all Outstanding Certificates under
the Indenture and all other amounts due hereunder and the performance and
observance by the Owner Trustee of all the agreements, covenants and
provisions for the benefit of the Holders contained in the Indenture, in the
Lease, in the Participation Agreement and the Certificates, and the prompt
payment of any and all amounts from time to time owing under the Participation
Agreement by the Owner Trustee, the Owner Participant or the Lessee to the
Holders and for the uses and purposes and subject to the terms and provisions
of the Indenture and the Certificates, and in consideration of the premises
and of the covenants contained in the Indenture, and of the purchase of the
Certificates by the Holders, and of the sum of $1 paid to the Owner Trustee by
the Indenture Trustee at or before the delivery of the Indenture, the receipt
of which is hereby acknowledged, the Owner Trustee has granted, bargained,
sold, assigned, transferred, conveyed, mortgaged, pledged, granted a security
interest in, and confirmed, and does hereby grant, bargain, sell, assign,
transfer, convey, mortgage, pledge, grant a security interest in, and confirm,
unto the Indenture Trustee, its successors and assigns, in trust for the equal
and ratable security and benefit of the Holders, in the trust created by the
Indenture, and subject to all of the terms, conditions, provisions and
limitations set forth in the Indenture, a first priority security interest in
and mortgage lien on all estate, right, title and interest of the Owner Trustee
in, to and under the following described property:
Airframe
One (1) Airframe identified as follows:
FAA Manufacturer's
Registration Serial
Manufacturer Model Number Number
- ------------ ----- ------------ --------------
together with all appliances, equipment, instruments and accessories
(including, without limitation, radio and radar) from time to time belonging
thereto, owned by the Owner Trustee and installed in or appurtenant to said
aircraft.
AIRCRAFT ENGINES
Two (2) aircraft engines, each such engine having 750 or more rated takeoff
horsepower or the equivalent thereof, identified as follows:
Manufacturer's
Serial
Manufacturer Model Number
- ----------- ---- --------------
together with all equipment and accessories belonging thereto, by whomsoever
manufactured, owned by the Owner Trustee and installed in or appurtenant to
said aircraft engines.
Together with all substitutions, replacements and renewals of the
property described above, and all property which shall hereafter become
physically attached to or incorporated in the property described above,
whether the same are now owned by the Owner Trustee or shall hereafter be
acquired by it.
As further security for the obligations referred to above and secured
by the Indenture and hereby, the Owner Trustee has granted, bargained, sold,
assigned, transferred, conveyed, mortgaged, pledged and confirmed, and does
hereby grant, bargain, sell, assign, transfer, convey, mortgage, pledge and
confirm, unto the Indenture Trustee, its successors and assigns, for the
security and benefit of the Holders, in the trust created by the Indenture,
and subject to all of the terms, conditions, provisions and limitations set
forth in the Indenture, all of the estate, right, title and interest of the
Owner Trustee in, to and under the Lease Supplement (other than Excepted
Payments, if any) covering the property described above.
TO HAVE AND TO HOLD all and singular the aforesaid property unto the
Indenture Trustee, its successors and assigns, for the benefit and security of
the Holders for the uses and purposes and subject to the terms and provisions
set forth in the Indenture.
This Supplement shall be construed as supplemental to the Indenture
and shall form a part thereof, and the Indenture is hereby incorporated by
reference herein and is hereby ratified, approved and confirmed.
This Supplement is being delivered in the State of New York.
AND, FURTHER, the Owner Trustee hereby acknowledges that the
Aircraft/Engines referred to in this Supplement and the aforesaid Lease
Supplement has been delivered to the Owner Trustee and is included in the
property of the Owner Trustee and covered by all the terms and conditions of
the Trust Agreement, subject to the Lien of the Indenture.
IN WITNESS WHEREOF, the Owner Trustee has caused this Supplement to
be duly executed as of the date first written above by one of its officers
thereunto duly authorized.
STATE STREET BANK AND TRUST COMPANY
OF CONNECTICUT, NATIONAL ASSOCIATION,
not in its individual capacity,
except as specifically set forth herein
but solely as Owner Trustee
By
--------------------------------------
Name: Paul D. Allen
Title: Vice President
Exhibit B
to
Trust Indenture and Security Agreement
[Form of Certificate]
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY
NOT BE SOLD OR OFFERED FOR SALE IN CONTRAVENTION OF SAID ACT
No. ______ $_____________
EQUIPMENT TRUST CERTIFICATE
(Federal Express Corporation Trust No. N584FE)
STATE STREET BANK AND TRUST COMPANY OF CONNECTICUT,
NATIONAL ASSOCIATION
not in its individual capacity but solely as
OWNER TRUSTEE UNDER TRUST AGREEMENT
(Federal Express Corporation Trust No. N584FE)
dated as of May 1, 1997
Interest Rate Maturity
SERIES ___
State Street Bank and Trust Company of Connecticut, National
Association, a national banking association, not in its individual capacity
but solely as Owner Trustee (herein in such capacity called the "Owner
Trustee") under that certain Trust Agreement (Federal Express Corporation
Trust No. N584FE) dated as of May 1, 1997, between the Initial Owner
Participant named therein and State Street Bank and Trust Company of
Connecticut, National Association (herein as such Trust Agreement may be
amended or supplemented from time to time called the "Trust Agreement"), hereby
promises to pay to FIRST SECURITY BANK, NATIONAL ASSOCIATION, as Subordination
Agent, or its registered assigns, the principal sum of ________________
_______________ Dollars, payable as set forth below for the Maturity
specified above, in such coin or currency of the United States of America as
at the time of payment shall be legal tender for the payment of public and
private debts, and to pay interest on the principal outstanding from time to
time, semiannually on each January 15 and July 15, on said principal sum in
like coin or currency at the rate per annum set forth above from the January
15 or the July 15, as the case may be, next preceding the date of this
Certificate to which interest on the Certificates has been paid or duly
provided for, unless the date hereof is a date to which interest on the
Certificates has been paid or duly provided for, in which case from the date
of this Certificate. Notwithstanding the foregoing, if the date hereof is
after any January 15 or July 15 and before the following January 15 or July
15, as the case may be, this Certificate shall bear interest from such January
15 or July 15; provided that, if the Owner Trustee shall default in the
payment of interest due on such January 15 or July 15, then this Certificate
shall bear interest from the next preceding January 15 or July 15 to which
interest on this Certificate has been paid or duly provided for. The interest
so payable on any January 15 or July 15 will, except as otherwise provided in
the Indenture referred to below, be paid to the person in whose name this
Certificate is registered at the close of business on the January 15 or July
15 preceding such January 15 or July 15, whether or not such day is a Business
Day.
This Certificate shall bear interest at the Past Due Rate on any
principal hereof and on any other amount payable hereunder or under the
Indenture which shall not be paid in full when due (whether at stated
maturity, by acceleration, by mandatory prepayment or otherwise), for the
period from and including the date thereof to but excluding the date the same
is paid in full, payable from time to time on demand of the Indenture Trustee.
Principal and interest and other amounts due hereunder shall be
payable at the office or agency of First Security Bank, National Association
(the "Indenture Trustee") maintained for such purpose in immediately available
funds prior to 10:30 A.M. (New York time) on the due date thereof and the
Indenture Trustee shall remit all such amounts received by it to the Holders
at such account or accounts at such financial institution or institutions as
the Holders shall have designated to the Indenture Trustee in writing, in
immediately available funds, such payment to be made if the payment was
received prior to 10:30 A.M. New York time by the Indenture Trustee on any
Business Day, by 12:00 noon New York time on such Business Day; otherwise, the
Indenture Trustee shall make payment promptly, but not later than 11:00 A.M.
New York time on the next succeeding Business Day; provided that, at the
option of the Indenture Trustee or its Paying Agent, interest may be paid by
mailing a check therefor payable to or upon the written order of the
registered holder entitled thereto at his last address as it appears on the
Register. If any amount payable under this Certificate, or under the
Indenture, falls due on a day that is not a Business Day, then such sum shall
be payable on the next succeeding Business Day, without (provided that payment
is made on such next succeeding Business Day) additional interest thereon for
the period of such extension.
State Street Bank and Trust Company of Connecticut, National
Association and First Security Bank, National Association are not acting
individually hereunder, but solely as Owner Trustee and Indenture Trustee,
respectively.
Any Person, other than the Subordination Agent, who is acquiring the
Certificates will be deemed to represent and warrant that (i) no assets of an
employee benefit plan subject to Title I of ERISA or an individual retirement
account or plan subject to Section 4975 of the Code, or any trust established
under any such plan or account, have been used to acquire or hold any of the
Certificates, or (ii) that one or more administrative or statutory exemptions
from the prohibited transaction rules under Section 406 of ERISA and Section
4975 of the Code applies to its purchase and holding of the Certificates such
that its purchase and holding of the Certificates will not result in a
non-exempt prohibited transaction under Section 406 of ERISA and Section 4975
of the Code.
This Certificate is one of a duly authorized issue of Certificates
issued and to be issued under the Trust Indenture and Security Agreement
(Federal Express Corporation Trust No. N584FE) dated as of May 1, 1997 (herein
as amended, supplemented or modified from time to time called the "Indenture")
between the Owner Trustee and the Indenture Trustee, designated as Equipment
Trust Certificates (Federal Express Corporation Trust No. N584FE) limited in
aggregate initial principal amount to $60,892,000 consisting of the following
aggregate principal amounts of Certificates with the interest rates per annum
and Maturities shown:
Initial
Aggregate
Principal
Series Maturity Amount Interest Rate
- ------ -------- --------- -------------
A January 15, 2016 $36,665,000 7.50%
B January 15, 2017 $13,616,000 7.52%
C January 15, 2009 $10,611,000 7.65%
Reference is made to the Indenture and all supplements and amendments
thereto (a copy of which is on file with the Indenture Trustee at its
principal corporate trust office) for a more complete statement of the terms
and provisions thereof, including a statement of the properties conveyed,
pledged and assigned thereby, the nature and extent of the security, the
respective rights of the Owner Trustee, the Owner Participant, the Lessee, the
Indenture Trustee and the Holders, and the terms upon which the Certificates
are, and are to be, executed and delivered, to all of which terms and
conditions in the Indenture each Holder hereof agrees by its acceptance of
this Certificate.
Capitalized terms not otherwise defined herein shall have the
meanings given to them in the Indenture.
The principal amounts of the Certificates are payable as set forth in
Schedule I attached hereto. The Certificates are subject to redemption in
part, pro rata (based on the face amount thereof), in each case through
mandatory sinking fund redemptions providing for the redemption on the Sinking
Fund Redemption Dates of the aggregate principal amounts set forth on Schedule
I attached hereto, together with interest accrued thereon to the applicable
Sinking Fund Redemption Date, but without Make-Whole Premium.
Except as expressly provided in the Indenture, all payments of
principal, Make-Whole Premium, if any, and interest and other amounts to be
made to the Holder hereof by or at the behest of the Owner Trustee hereunder
or under the Indenture shall be made only from the income and proceeds from
the Lessor's Estate to the extent included in the Trust Indenture Estate and
only to the extent that the Owner Trustee shall have sufficient income or
proceeds from the Lessor's Estate to the extent included in the Trust
Indenture Estate to enable the Indenture Trustee to make such distributions in
accordance with the terms of the Indenture; provided that under the Lease, the
Lessee is obligated to pay or cause to be paid, to the extent such payments
are not required to be made from the assets subject to the Lien of this
Indenture or the income and proceeds received by the Indenture Trustee
therefrom, any net loss arising from the investment of funds held by the
Indenture Trustee which but for an Event of Default would be payable to
Lessee, and each Holder hereof, by its acceptance of this Certificate, agrees
that it will (except as aforesaid) look solely to the income and proceeds from
the Trust Indenture Estate to the extent available for distribution to the
Holder hereof as provided above and that none of the Owner Trustee, State
Street Bank and Trust Company of Connecticut, National Association nor the
Indenture Trustee is personally liable to the Holder hereof for any amounts
payable or any liability under this Certificate or under the Indenture, except
as expressly provided in the Indenture, in the case of State Street Bank and
Trust Company of Connecticut, National Association, the Owner Trustee and the
Indenture Trustee.
The Certificates are subject to prepayment in the following
circumstances at the price determined as set forth below.
(i) If an Event of Loss occurs with respect to the Airframe or with
respect to the Airframe and the Engines or engines then installed on the
Airframe (unless pursuant to Section 11.03 of the Lease and Section 9.08 of
the Indenture replacement equipment is substituted therefor).
(ii) If the Lessee, pursuant to Section 4.02(a) of the Lease, gives
notice of purchase of the Aircraft.
(iii) If any Owner Participant or the Owner Trustee on behalf of any
Owner Participant gives notice of prepayment to the Indenture Trustee
pursuant to Section 8.02 of the Indenture.
(iv) If the Lessee, pursuant to Section 10.01 of the Lease, gives
notice of a voluntary termination for obsolescence or surplus, but subject
to Section 6.02(c) of Indenture.
(v) At the option of the Owner Trustee with the prior written
consent of the Lessee upon not less than 25 days' prior written notice.
(vi) As contemplated by Section 2.16 of the Indenture and Section
3.03(b) of the Participation Agreement if the Delivery Date has not
occurred on or prior to the Cut-Off Date.
(vii) With respect to the Series C Certificates only, as provided in
Section 2.03(b) of the Participation Agreement.
(viii) Pursuant to Section 15.01 of the Participation Agreement in
connection with a Refinancing of the Certificates.
In the case of a prepayment of the Certificates pursuant to clauses
(ii), (iv) and (viii) above, the Lessee, in accordance with and subject to the
terms (including timing of notice) of Section 4.02(a) or 10.01 of the Lease or
Article 15 of the Participation Agreement, as the case may be, shall give
irrevocable (subject to Section 6.02(c) of the Indenture) written notice to
the Owner Trustee and the Indenture Trustee and to the Holders of all of the
Certificates specifying the Business Day on which the Owner Trustee is
directed to prepay the Certificates. In the case of a prepayment pursuant to
clause (i) above, the Certificates shall be prepaid on the Loss Payment Date
(as defined in Section 11.02 of the Lease). In the case of a prepayment
pursuant to clause (iii) above, the Certificates shall be prepaid on the date
designated in the notice of prepayment required by Section 8.02 of the
Indenture. In the case of a prepayment of the Certificates pursuant to clauses
(ii) and (iv) above, the Certificates shall be prepaid in full on the
Termination Date. In the case of a prepayment of the Certificates pursuant to
clause (v) above, the Certificates shall be prepaid on the 25th date following
the notice referred to therein. In the case of a prepayment of the
Certificates pursuant to clause (vi) above, the Certificates shall be prepaid
on the 15th day following the Cut-Off Date. In the case of a prepayment of
the Series C Certificates pursuant to clause (vii) above, the amount of such
Series C Certificates to be prepaid shall be prepaid on the Reoptimization
Date. In the case of a prepayment pursuant to Section 6.02(a)(viii) above,
the Certificates shall be prepaid on the effective date of the Refinancing.
The day on which the Certificates are to be prepaid is herein referred to as
the "Prepayment Date". On or prior to the Prepayment Date, immediately
available funds shall be deposited with the Indenture Trustee in an amount in
respect of the Certificates equal to:
(1) (i) if such prepayment is made under any provision of Section
6.02 of the Indenture on or after the applicable Premium Termination Date,
or (ii) if such prepayment is made prior to the applicable Premium
Termination Date pursuant to clause (i) or (iii) above (if clause (i) of
the first sentence of Section 8.02(a) of the Indenture is applicable),
clause (vi) or (vii) above, the sum of (A) the aggregate principal amount
of such Certificates then Outstanding, (B) accrued interest on the
Certificates to the Prepayment Date and (C) all other aggregate sums due the
Indenture Trustee under the Indenture or under the Participation Agreement
or the Lease, but excluding any Make-Whole Premium or other premium or
penalty, or
(2) if such prepayment is made prior to the applicable Premium
Termination Date pursuant to clause (ii), (iii) (if clause (ii) of the
first sentence of Section 8.02(a) of the Indenture is applicable), (iv),
(v) or (viii) above, the sum of the amounts specified in clauses (A), (B)
and (C) of the preceding clause (1) plus any Make-Whole Premium payable in
respect of all Certificates with respect to which the Premium Termination
Date therefor has not occurred
(the aggregate amount required to be paid pursuant to this sentence being
herein referred to as the "Prepayment Price").
If an Indenture Event of Default under the Indenture shall occur and
be continuing, the principal of the Certificates may be declared due and
payable in the manner and with the effect provided in the Indenture. The
Indenture provides that in certain events such declaration and its
consequences may be waived the Majority in Interest of Holders. Any such
consent or waiver shall be conclusive and binding upon the Holder of this
Certificate and upon all future Holders and owners of this Certificate and any
Certificate that may be issued in exchange or substitution therefor, whether or
not any notation thereof is made upon this Certificate or such other
Certificates. Moreover, if, and only if, an Event of Default shall occur, the
Indenture Trustee may declare the Lease to be in default, and may, to the
exclusion of the Owner Trustee, exercise one or more of the remedies of the
Owner Trustee provided in the Lease.
The Owner Trustee or any Owner Participant may cure a default by the
Lessee under the Lease arising from the failure of the Lessee to make any
Basic Rent payments under the Lease, but the Owner Trustee and the Owner
Participant, collectively, may not cure more than three consecutive such
failures or more than six such failures in total. The Owner Trustee or any
Owner Participant may cure any other default by the Lessee in the performance
of its obligations under the Lease.
(A) If an Event of Default shall have occurred and be continuing for
more than 180 days or the Certificates shall have been accelerated or (B) an
Event of Default shall have occurred and be continuing for not more than 180
days and the Certificates shall not have been accelerated, the Owner
Participant (or the Owner Trustee on behalf of the Owner Participant) may:
(1) direct the Owner Trustee to cause the prepayment of all the
Outstanding Certificates by notifying the Indenture Trustee of such
election and depositing the sum of amounts contemplated by paragraph
"first" under Section 5.03 of the Indenture and the aggregate
Prepayment Price of all such Certificates with the Indenture Trustee
for distribution to the Holders; or
(2) purchase all of the Outstanding Certificates by paying to the
Indenture Trustee an amount equal to the aggregate unpaid principal
amount of all Outstanding Certificates, plus accrued interest on such
amount to the date of purchase and any Make-Whole Premium applicable
to each Outstanding Certificate, if such purchase occurs prior to the
Premium Termination Date for such Outstanding Certificate (in the
case of a purchase pursuant to clause (ii) of the first sentence of
Section 8.02(a) of the Indenture) plus all other sums due any Holder
or the Indenture Trustee under the Indenture, the Participation
Agreement or the Lease.
The right of the Holder hereof to institute an action for any remedy
under the Indenture is subject to certain restrictions specified in the
Indenture, except that the right of the Holder of this Certificate to receive
payment of the principal of and interest and Make-Whole Premium, if any, on
this Certificate on or after the respective due dates, or to institute suit
for the enforcement of any such payment, shall not be impaired or affected
without the consent of such Holder.
The Certificates are issuable only as registered Certificates without
coupons in denominations of $1,000 and integral multiples thereof. So long as
any of the Certificates remain Outstanding, the Indenture Trustee will
maintain an office or agency where the Certificates may be presented for
payment and a facility or agency in New York, New York where the Certificates
may be presented for registration of transfer and for exchange as provided in
the Indenture. As provided in the Indenture and subject to certain
limitations therein, this Certificate is transferable, and upon surrender of
this Certificate for registration of transfer at the principal corporate trust
office of the Indenture Trustee, or at the office or agency maintained for such
purposes, duly endorsed by, or accompanied by a written instrument of transfer
in form satisfactory to the Owner Trustee and the Indenture Trustee duly
executed by, the Holder or his attorney duly authorized in writing, one or
more new Certificates of the same Series and Maturity and interest rate and of
authorized denominations and for the same aggregate principal amount will be
issued to the designated transferee or transferees.
As provided in the Indenture and subject to certain limitations
therein, the Certificates are exchangeable for an equal aggregate principal
amount of Certificates of the same Series and Maturity and interest rate and
of authorized denominations, as requested by the Holder surrendering the same,
upon presentation thereof for such purpose at the principal corporate trust
office of the Indenture Trustee, or at an office or agency maintained for such
purpose.
No service charge shall be levied for any such registration of
transfer or exchange, but the Indenture Trustee may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection
therewith.
Prior to the due presentment for registration of transfer of this
Certificate, the Owner Trustee, the Indenture Trustee, any agent of the Owner
Trustee or the Indenture Trustee, the Paying Agent, if any, the Registrar and
the Lessee shall deem and treat the person in whose name this Certificate is
registered as the absolute owner hereof for all purposes whether or not this
Certificate is overdue, and neither the Owner Trustee, the Indenture Trustee
(nor any agent of the Owner Trustee or the Indenture Trustee), nor the Paying
Agent, if any, the Registrar nor the Lessee shall be affected by notice to the
contrary.
The indebtedness evidenced by this Certificate is, to the extent and
in the manner provided in the Indenture, subordinate and subject in right of
payment to the prior payment in full of the Secured Obligations (as defined in
the Indenture) in respect of [Series A Certificate](1), [Series A and Series B
Certificates](2) and this Certificate is issued subject to such provisions.
The Holder of this Certificate, by accepting the same, (a) agrees to and shall
be bound by such provisions, (b) authorizes and directs the Indenture Trustee
on such Holder's behalf to take such action as may be necessary or appropriate
to effectuate the subordination as provided in the Indenture and (c) appoints
the Indenture Trustee such Holder's attorney-in-fact for such purpose.(*)
- ------------
(1) To be inserted in the case of a Series B Certificate.
(2) To be inserted in the case of a Series C Certificate.
(*) To be inserted for each Certificate other than any Series A
Certificate.
The Owner Trustee shall have the right, on the Reoptimization Date to
modify Schedule I attached hereto subject to the terms and conditions set
forth in Section 2.03(b) of the Participation Agreement. To give effect to
the foregoing the Indenture Trustee shall execute an amendment to the
Indenture which shall amend Section 6.06 thereof to set forth the new schedule
of principal payments and Schedule I attached hereto shall be amended
accordingly. The Indenture Trustee shall deliver such amendments to the
Subordination Agent on behalf of the Pass Through Trustee for each of the Pass
Through Trusts. To the extent that such amendment of the Indenture occurs
later than the Delivery Date, the Indenture, as amended, shall, if required,
be duly filed for recordation with the Aeronautics Authority.
As provided in the Indenture, the Indenture and the Certificates
shall be construed in accordance with and governed by the laws of the State of
New York.
This Certificate shall not be secured by or be entitled to any
benefit under the Indenture or be valid or obligatory for any purpose unless
authenticated by the Indenture Trustee as evidenced by the manual signature of
one of its authorized officers on the certificate below.
IN WITNESS WHEREOF, the Owner Trustee has caused this Equipment Trust
Certificate (Federal Express Corporation Trust No. N584FE) to be duly executed
in its corporate name by its officer thereunto duly authorized.
Dated: May ___, 1997 STATE STREET BANK AND TRUST COMPANY OF
CONNECTICUT, NATIONAL ASSOCIATION,
not in its individual capacity,
but solely as Owner Trustee
By
--------------------------------------
Name: Paul D. Allen
Title: Vice President
[FORM OF INDENTURE TRUSTEE'S CERTIFICATE OF AUTHENTICATION]
This is one of the Equipment Trust Certificates (Federal Express
Corporation Trust No. N584FE) referred to in the within mentioned Indenture.
Dated: May ___, 1997 FIRST SECURITY BANK, NATIONAL ASSOCIATION,
not in its individual capacity,
but solely as Indenture Trustee
By
--------------------------------------
Name: Greg A. Hawley
Title: Vice President
Schedule I
to
Certificate
Principal Amount
Series A Series B Series C
Certificates with Certificates with Certificates with
Sinking Fund a Maturity of a Maturity of a Maturity of
Redemption Date January 15, 2016 January 15, 2017 January 15, 2009
- ---------------- ----------------- ----------------- ------------------
January 15, 1998 0 0 102,980
July 15, 1998 0 0 0
January 15, 1999 748,200 147,200 404,926
July 15, 1999 0 0 0
January 15, 2000 748,266 280,600 316,709
July 15, 2000 0 0 0
January 15, 2001 748,266 280,600 422,760
July 15, 2001 0 0 0
January 15, 2002 748,266 280,600 532,275
July 15, 2002 0 0 0
January 15, 2003 0 9,011 1,670,428
July 15, 2003 748,266 271,589 0
January 15, 2004 0 0 740,723
July 15, 2004 748,266 280,600 0
January 15, 2005 0 0 957,930
July 15, 2005 748,266 280,600 0
January 15, 2006 0 0 998,524
July 15, 2006 748,271 280,600 2,326,313
January 15, 2007 0 0 633,363
July 15, 2007 748,266 280,600 0
January 15, 2008 748,267 280,600 1,052,911
July 15, 2008 0 0 0
January 15, 2009 748,267 1,680,218 451,158
July 15, 2009 0 0 0
January 15, 2010 748,266 2,108,147 0
July 15, 2010 0 0 0
January 15, 2011 748,267 2,962,459 0
July 15, 2011 0 0 0
January 15, 2012 3,115,804 1,855,089 0
July 15, 2012 0 0 0
January 15, 2013 5,358,428 0 0
July 15, 2013 0 0 0
January 15, 2014 5,775,968 0 0
July 15, 2014 0 0 0
January 15, 2015 6,226,044 0 0
July 15, 2015 0 0 0
January 15, 2016 6,461,356 249,863 0
July 15, 2016 0 0 0
January 15, 2017 0 2,087,624 0
SCHEDULE I
[Reserved]
SCHEDULE II
DEFINITIONS
(FEDERAL EXPRESS CORPORATION TRUST NO. N584FE)
GENERAL PROVISIONS
The following terms shall have the following meanings for all
purposes of the Operative Agreements (other than the Pass Through Agreement,
the Series Supplements, the Intercreditor Agreement and the Liquidity
Facilities) referred to below, unless otherwise defined in an Operative
Agreement or the context thereof shall otherwise require. In the case of any
conflict between the provisions of this Schedule and the provisions of any
Operative Agreement, the provisions of such Operative Agreement shall control
the construction of such Operative Agreement.
Unless the context otherwise requires, (i) references to agreements
shall be deemed to mean and include such agreements as amended and
supplemented from time to time, and (ii) references to parties to agreements
shall be deemed to include the successors and permitted assigns of such
parties.
DEFINED TERMS:
Additional Insured. As defined in Article 13 of the Lease.
Aeronautics Authority. As appropriate, the Federal Aviation
Administration and/or the Administrator of the Federal Aviation
Administration, any successor to the former United States Civil Aeronautics
Board, or any Person, governmental department, bureau, commission or agency
located in the United States succeeding to the functions of any of the
foregoing.
Affidavits. The affidavits of citizenship of the Owner Trustee and
the Owner Participant.
Affiliate. With respect to any Person, any other Person directly or
indirectly controlling, controlled by or under common control with such
Person. For the purposes of this definition, "control" (including "controlled
by" and "under common control with") shall mean the power, directly or
indirectly, to direct or cause the direction of the management and policies of
such Person whether through the ownership of voting securities or by contract
or otherwise. In no event shall the Owner Trustee or the Lessor be deemed an
Affiliate of the Owner Participant.
After-Tax Basis. A basis such that any payment received or deemed to
have been received by a Person shall be supplemented by a further payment to
such Person so that the sum of the two payments, after deduction of all Taxes
resulting from the receipt or accrual of such payments, shall be equal to the
payment received or deemed to have been received. In the case of amounts
payable to the Lessor, the Owner Participant, or any corporate Affiliate of
the Owner Participant, it shall be presumed that such Person is at all times
subject to Federal income tax at the maximum marginal rate generally
applicable to corporations from time to time and actual state, local and
foreign income taxes.
Air Carrier. Any U.S. Air Carrier and any "foreign air carrier" (as
defined in the Transportation Code) as to which there is in force a permit
granted under Section 41302 of the Transportation Code.
Aircraft. The Airframe to be sold by the Lessee to the Owner Trustee
as provided in the Participation Agreement and to be leased under the Lease
(or any permitted substitute airframe thereunder) together with three Engines
(whether each an initial Engine or a Replacement Engine) whether or not any of
such initial or Replacement Engines may from time to time be installed on such
Airframe or may be installed on any other airframe or on any other aircraft,
including any aircraft substituted pursuant to Section 11.03 of the Lease.
Prior to delivery of the initial Lease Supplement, references in the Operative
Agreements (including Section 3.03 of the Participation Agreement) to Aircraft
shall mean the McDonnell Douglas MD-11F airframe bearing FAA Registration
Number N1768D (currently anticipated to be changed to N584FE) and
Manufacturer's serial number 48436, together with three General Electric
CF6-80C2-D1F engines.
Airframe. The McDonnell Douglas MD-11F aircraft (excluding the
Engines or engines from time to time installed thereon) to be leased by the
Lessor to the Lessee pursuant to the Lease and the initial Lease Supplement
and having the United States FAA Registration Number initially and
manufacturer's serial number specified in the initial Lease Supplement,
including (i) all Parts in respect thereof and (ii) any Replacement Airframe
which may be substituted pursuant to Section 11.03 of the Lease.
Ancillary Agreement. Any written agreement of the Lessee to which the
Lessor is a party or to which the Lessor has consented in writing entered into
on or prior to the Delivery Date or any date thereafter in connection with the
transactions contemplated by the Operative Agreements, as such agreement may
be amended and supplemented from time to time with the consent of the Lessor
and delivered to the Owner Trustee, the Indenture Trustee, the Pass Through
Trustee, the Subordination Agent, each Liquidity Provider and the Owner
Participant.
Ancillary Agreement I. The Ancillary Agreement I (Federal Express
Corporation Trust No. N584FE), dated the Delivery Date, among the Lessee, the
Owner Trustee, not in its individual capacity, but solely as Owner Trustee,
the Owner Participant and the Indenture Trustee not in its individual
capacity, but solely as Indenture Trustee, as originally executed or as
amended, modified or supplemented with the consent of all the parties thereto.
Application. The application for registration of the Aircraft with
the FAA in the name of the Owner Trustee.
Appraisal. The report prepared by BK Associates, Inc. and to be
delivered to the Owner Participant (with a copy of the conclusions to the
Lessee) on the Delivery Date pursuant to Section 4.02(h) of the Participation
Agreement.
Average Life Date. For any Certificate, the date which follows the
prepayment date by a period equal to the Remaining Weighted Average Life of
such Certificate.
Bankruptcy Code. The Federal Bankruptcy Code of 1978, as amended, and
any successor thereto.
Bankruptcy Default. An event specified in Section 16.01(e), (f) or
(g) of the Lease which either does or, with the giving of notice or lapse of
time or both, would constitute an Event of Default.
Basic Rent. The aggregate periodic rent payable for the Aircraft
throughout the Basic Term pursuant to Section 3.02 of the Lease, adjusted
pursuant to Article 3 of the Lease.
Basic Term. The period commencing at the beginning of the day on the
Delivery Date and ending at the end of the day on June 15, 2019, or such
earlier date on which the Lease shall be terminated as provided therein.
Beneficial Interest. The interest of the Owner Participant (or the
Initial Owner Participant, as the case may be) under the Trust Agreement.
Bills of Sale. Collectively, the FAA Bill of Sale and the Warranty
Bill of Sale.
Business Day. Any day on which commercial banks are not authorized or
required to close in New York, New York, Memphis, Tennessee and the city in the
United States in which the office or agency is maintained by the Pass Through
Trustee for the payment of the Pass Through Certificates, and after the Lien
of the Indenture is discharged, Boston, Massachusetts.
Certificate Closing Date. The date of the closing with respect to the
purchase of Certificates by the Pass Through Trustee contemplated by Section
2.01(b) of the Participation Agreement.
Certificates. The Equipment Trust Certificates (Federal Express
Corporation Trust No. N584FE), issued by the Owner Trustee pursuant to the
Indenture and any certificate issued in exchange therefor or replacement
thereof pursuant to the Indenture.
Citizen of the United States. A citizen of the United States as
defined in Section 40102(a)(15) of the Transportation Code, or any analogous
part of any successor or substituted legislation or regulation at the time in
effect.
Class A Liquidity Provider. Has the meaning specified in Section
1.01 of the Intercreditor Agreement.
Class B Liquidity Provider. Has the meaning specified in Section
1.01 of the Intercreditor Agreement.
Closings. The closing with respect to the acquisition of the Pass
Through Certificates by the Underwriters and the closing with respect to the
acquisition of Certificates by the Pass Through Trustee.
Code. Except as otherwise provided, the Internal Revenue Code of
1986, as amended from time to time.
Collateral Account. The deposit account established and maintained
pursuant to Section 2.13 of the Indenture.
Collateral Account Control Agreement. The Collateral Account Control
Agreement dated as of May 1, 1997 among State Street Bank and Trust Company,
the Indenture Trustee and the Owner Trustee.
Commitment. The amount of the Owner Participant's participation in
the Purchase Price required to be made available or paid as provided in
Section 3.02 of the Participation Agreement.
Corporate Trust Administration. The Corporate Trust Administration
office of the Owner Trustee located at 750 Main Street, Hartford, Connecticut
06103, Attention: Corporation Trust Administration, or such other office at
which the Owner Trustee's corporate trust business shall be administered which
the Owner Trustee shall have specified by notice in writing to the Lessee, the
Owner Participant and the Indenture Trustee.
Corporate Trust Department. The Corporate Trust Department office of
the Indenture Trustee located at 79 South Main Street, Salt Lake City, Utah
84111, Attention: Corporate Trust Department, or such other office at which
the Indenture Trustee's corporate trust business shall be administered which
the Indenture Trustee shall have specified by notice in writing to the Lessee,
the Owner Participant and the Owner Trustee.
CRAF Program. Has the meaning specified in Section 7.01(f) of the
Lease.
Cut-Off Date. April 15, 1998.
Debt Portion. The amount specified as such on Schedule IV to the
Participation Agreement.
Debt Rate. The weighted average (based on Outstanding principal
amount) rate of interest on the Certificates issued pursuant to the Indenture.
Default. Any event or condition which, with the lapse of time or the
giving of notice, or both, would constitute an Event of Default.
Delivery Date. The date on which the Aircraft is delivered and sold
by the Lessee to the Lessor and leased by the Lessor to the Lessee under the
Lease, which date shall also be the date of the initial Lease Supplement.
Delivery Notice. Notice of the Aircraft's Delivery Date, given by
the Lessee as provided in Section 3.01 of the Participation Agreement and
including any notice with respect to a postponed Delivery Date given by the
Lessee pursuant to Section 3.03(c) of the Participation Agreement.
EBO Date. Has the meaning specified in Section 4.02(a)(F) of the
Lease.
EBO Price. Has the meaning specified in Section 4.02(a)(F) of the
Lease.
Eligible Deposit Account. Either (a) a segregated account with an
Eligible Institution or (b) a segregated trust account with the corporate
trust department of a depository institution with corporate trust powers
organized under the laws of the United States or any state thereof, or the
District of Columbia, and whose deposits are insured by the Federal Deposit
Insurance Corporation, provided that such institution also has a combined
capital and surplus of at least $100,000,000 and a rating of A or better from
the Thomson Bank Watch.
Eligible Institution. A depository institution organized under the
laws of the United States or any one of the states thereof, or the District of
Columbia, or any domestic branch of a foreign bank, which in any such case at
all times (a) has either (x) a long-term unsecured debt rating of at least Aa2
by Moody's or (y) a short-term certificate of deposit rating of P-1 by
Moody's, (b) has either (x) a long-term unsecured debt rating of a least AA by
S&P or (y) a short-term certificate of deposit rating of A-1+ by S&P and (c)
is a member of the Federal Deposit Insurance Corporation.
Engine. Each of the three General Electric CF6-80C2-D1F engines
listed by its manufacturer's serial number in the initial Lease Supplement and
leased pursuant to the Lease, whether or not from time to time installed on
the Airframe or installed on any other airframe or on any other aircraft, and
any Replacement Engine which may from time to time be substituted for an
Engine pursuant to Section 7.02(a)(vii), 10.03, 11.03, 11.04 or 12.02 of the
Lease, together with all Parts related thereto. Except as otherwise provided,
at such time as a Replacement Engine shall be so substituted and the Engine
for which the substitution is made shall be released from the Lien of the
Indenture, such replaced Engine shall cease to be an "Engine" under the Lease.
The term "Engines" means, as of any date of determination, all Engines then
leased to the Lessee pursuant to the Lease.
Engine Consent. The Engine Consent dated as of May 1, 1997, executed
by the Engine Manufacturer.
Engine Manufacturer. General Electric Company, a New York
corporation.
Engine Warranty Assignment. The Engine Warranty Assignment (Federal
Express Corporation Trust No. N584FE), dated as of May 1, 1997 between the
Lessor and the Lessee.
ERISA. The Employee Retirement Income Security Act of 1974, as
amended.
ERISA Plan. An employee benefit plan subject to Title I of ERISA, or
an individual retirement account or plan subject to Section 4975 of the Code.
Estimated Expense Amount. Has the meaning specified in Section
10.01(a) of the Participation Agreement.
Event of Default. Each of the events specified in Article 16 of the
Lease.
Event of Loss. Any of the following events with respect to the
Aircraft, the Airframe or any Engine: (i) loss of such property or its use (A)
due to theft or disappearance for a period in excess of 30 days (or such
longer period not to exceed 60 days from the end of such 30 day period if and
so long as the location of such property is known and the Lessee is pursuing
the recovery thereof) or to the end of the Term, if less, unless such event
constitutes an Event of Loss under clause (i)(B) or clause (ii) below, or (B)
due to the destruction, damage beyond economic repair or rendition of such
property permanently unfit for normal use by Lessee for any reason whatsoever;
(ii) any damage to such property which results in an insurance settlement with
respect to such property on the basis of a total loss, or constructive or
compromised total loss; (iii) (1) condemnation, confiscation or seizure of, or
requisition of title to such property by the Government, any foreign
government or purported government or any agency or instrumentality thereof,
or (2) condemnation, confiscation, or seizure of, or requisition or taking of,
use of such property (A) by a foreign government, or instrumentality or agency
of any such foreign government, or any purported government or instrumentality
or agency thereof for a period in excess of 180 days or the end of the Term,
if less, or (B) by the Government for a period extending beyond the Term
provided that no Event of Loss shall be deemed to have occurred, and the Term
shall be extended automatically for a period of up to six months beyond the
end of the Term in the event that the Aircraft or the Airframe or any Engine
is requisitioned by the Government pursuant to an activation as part of the
CRAF Program described in Section 7.02(a)(iv) of the Lease; or (iv) as a
result of any law, rule, regulation, order or other action by the Aeronautics
Authority or other governmental body having jurisdiction, the use of the
Aircraft or Airframe in the normal course of air transportation of cargo shall
have been prohibited for a period of four (4) consecutive months, unless the
Lessee, prior to the expiration of such four (4) month period, shall be
diligently carrying forward all steps which are necessary and desirable to
permit the normal use of the Aircraft or Airframe provided, however, that an
Event of Loss shall be deemed to have occurred if (x) the Lessee fails to
continue diligently carrying forward all such steps or (y) the use of the
Aircraft or the Airframe in the normal course of air transportation of cargo
shall have been prohibited for a period of an additional 8 months following
such 4 month period or (z) unless waived by the Lessor, the Term shall have
expired. The date of such Event of Loss shall be (t) the 30th day or the 90th
day, as the case may be, following loss of such property or its use due to
theft or disappearance; (u) the date of any destruction, damage beyond
economic repair or rendition of such property permanently unfit for normal
use; (v) the date of any insurance settlement on the basis of a total loss or
constructive or compromised total loss; (w) the date of any condemnation,
confiscation, seizure or requisition of title of such property; (x) the
earlier of the 181st day following condemnation, confiscation, seizure or
requisition for use of such property by a foreign government or
instrumentality or agency thereof or the end of the Term; (y) the last day of
the Term in the case of requisition for use of such property by the Government
or (z) the last day of the 4 month or additional 8 month period, referred to
in clause (iv) above or, if earlier, the last day of the Term (unless waived
by the Lessor). An Event of Loss with respect to the Aircraft shall be deemed
to have occurred if any Event of Loss occurs with respect to the Airframe.
Excepted Payments. Collectively, (i) indemnity or other payments of
expenses paid or payable by the Lessee in respect of the Owner Participant,
the Owner Trustee in its individual capacity or any of their respective
successors, permitted assigns, directors, officers, employees, servants and
agents or Affiliates, pursuant to Article 8, 9, or 10 or any indemnity
hereafter granted to the Owner Participant or the Owner Trustee in its
individual capacity pursuant to Section 7.01(e), Article 9 or Section 11.03(a)
of the Lease, (ii) proceeds of public liability insurance (or government
indemnities in lieu thereof) in respect of the Aircraft payable as a result of
insurance claims paid for the benefit of, or losses suffered by, the Owner
Trustee or the Indenture Trustee in their respective individual capacities or
by the Owner Participant, or their respective successors, permitted assigns or
Affiliates, (iii) proceeds of insurance maintained with respect to the
Aircraft by the Owner Participant (whether directly or through the Owner
Trustee) maintained in accordance with the provisions of but not required
under Article 13 of the Lease, (iv) all right, title and interest of the Owner
Participant in, to and under the Tax Indemnity Agreement and payments of
Supplemental Rent by the Lessee in respect of any amounts payable under the Tax
Indemnity Agreement, (v) any amounts payable by the Lessee to the Owner
Participant or the Owner Trustee in its individual capacity, after the release
thereof from the Lien of the Indenture, (vi) subject to Section 3.05 of the
Lease, payments constituting increases in Basic Rent attributable to payments
arising pursuant to Section 5 of the Tax Indemnity Agreement, (vii) any right
to demand, collect or otherwise receive and enforce the payment of any amount
described in clauses (i) through (vi) above and (viii) any payments in respect
of interest to the extent attributable to the payments referred to in clauses
(i) through (vi) above.
Expense; Expenses. Have the meaning specified in Section 9.01(a) of
the Participation Agreement.
FAA Bill of Sale. The bill of sale for the Airframe on AC Form
8050-2, or such other form as may be approved by the Aeronautics Authority,
executed by the Lessee in favor of the Owner Trustee and to be dated the
Delivery Date.
Fair Market Renewal Term. A term with respect to which the Lessee has
exercised its option to renew the Lease pursuant to the second paragraph of
Section 4.01(a) thereof and with respect to which the conditions set forth in
such Section 4.01(a) are met.
Fair Market Rental. An amount determined on the basis of, and equal
in amount to, the rental which would be obtained in an arm's-length
transaction between an informed and willing lessee and an informed and willing
lessor unaffiliated with such lessee, neither being under any compulsion to
lease. In such determination, except for purposes of Section 17.01 of the
Lease, it shall be assumed that the Aircraft is in at least the condition
required under the Lease in the case of return of the Aircraft pursuant to
Article 12 of the Lease and Fair Market Rental shall be determined in
accordance with the provisions of Section 4.03 of the Lease. For purposes of
Section 17.01 of the Lease, such determination shall be made on an "as is,
where is" basis by a qualified independent appraiser selected by the Lessor
and the costs and expenses of the appraisal shall be borne by the Lessee,
unless the Lessor has not obtained possession of the Aircraft pursuant to such
Section 17.01, in which case an appraiser shall not be appointed and such Fair
Market Rental shall be deemed to be zero.
Fair Market Value. An amount determined on the basis of, and equal
in amount to, the value which would be obtained in an arm's-length transaction
between an informed and willing purchaser under no compulsion to buy and an
informed and willing seller unaffiliated with such purchaser and under no
compulsion to sell, assuming the Aircraft (or other property) is unencumbered
by the Lease. In such determination, except for purposes of Section 17.01 of
the Lease, it shall be assumed that the Aircraft is in at least the condition
required under the Lease in the case of return of the Aircraft pursuant to
Article 12 of the Lease and Fair Market Value shall be determined in
accordance with the provisions of Section 4.03 of the Lease. For purposes of
Section 17.01 of the Lease, such determination shall be made on an "as is,
where is" basis by a qualified independent appraiser selected by the Lessor
and the costs and expenses of the appraisal shall be borne by the Lessee,
unless the Lessor has not obtained possession of the Aircraft free and clear
of all Liens and unencumbered by the Lease pursuant to such Section 17.01, in
which case an appraiser shall not be appointed and such Fair Market Value
shall be deemed to be zero.
Federal Aviation Administration; FAA. The United States Federal
Aviation Administration and any successor agency or agencies thereto.
Final Drawing. Has the meaning specified in Section 1.01 of the
Intercreditor Agreement.
Fixed Renewal Rent. Semi-annual payments of rent during the Fixed
Renewal Term equal to the lesser of (i) Fair Market Rental as determined as of
the commencement of such Fixed Renewal Term and (ii) the amount set forth in
Ancillary Agreement I.
Fixed Renewal Term. The term with respect to which the Lessee has
exercised its option to renew the Lease pursuant to the first paragraph of
Section 4.01(a) thereof and with respect to which the conditions set forth in
such Section 4.01(a) are met.
FSB. First Security Bank, National Association, a national banking
association.
Government. The United States of America or an agency or
instrumentality thereof the obligations of which bear the full faith and
credit of the United States of America.
GTA. The General Terms Agreement dated as of July 3, 1991 between the
Engine Manufacturer and the Lessee related to the purchase by the Lessee of the
Engines as originally executed or as modified, amended or supplemented in
accordance with the terms thereof, but only insofar as the General Terms
Agreement relates to the Engines, to the extent assigned to the Owner Trustee
pursuant to the Engine Warranty Assignment.
Holder of a Certificate; Certificate Holder; Holder. As of any
particular time, the Person in whose name a Certificate shall be registered
(but not including the holder of any Pass Through Certificate).
Indemnitee. Each of SSB, in its individual capacity and as Owner
Trustee and Lessor, the Subordination Agent, in its individual capacity and in
its capacity as Subordination Agent, each Liquidity Provider, the Owner
Participant, the Indenture Trustee, in its individual capacity and as trustee,
and any successor (including any trustee which may succeed to the Lessor's
interest under the Lease), Affiliate, assign, officer, director, employee,
agent and servant of any of the foregoing, the Lessor's Estate and the Trust
Indenture Estate. Neither the Pass Through Trustee nor any holder of a Pass
Through Certificate shall be deemed to be an Indemnitee.
Indenture. The Trust Indenture and Security Agreement (Federal
Express Corporation Trust No. N584FE), dated as of May 1, 1997, between the
Lessor and the Indenture Trustee, as supplemented by the Indenture and
Security Agreement Supplement.
Indenture and Security Agreement Supplement. The Indenture and
Security Agreement Supplement No. 1 (Federal Express Corporation Trust No.
N584FE) to be dated the Delivery Date, substantially in the form of Exhibit A
to the Indenture.
Indenture Default. Any event or condition which, with the lapse of
time or the giving of notice, or both, would constitute an Indenture Event of
Default.
Indenture Documents. Has the meaning specified in the Granting
Clause of the Indenture.
Indenture Event of Default. Each of the events specified in Section
7.01 of the Indenture.
Indenture Trustee. First Security Bank, National Association, a
national banking association, not in its individual capacity but solely as
Indenture Trustee under the Indenture.
Indenture Trustee's Liens. Any Lien against, on or with respect to
the Aircraft, the Lessor's Estate or the Trust Indenture Estate or any part
thereof resulting from (i) claims against the Indenture Trustee not related to
the administration of the Trust Indenture Estate or any transactions pursuant
to the Indenture or any document included in the Trust Indenture Estate, (ii)
any act or omission of the Indenture Trustee which is not related to the
transactions contemplated by the Operative Agreements or is in violation of
any of the terms of the Operative Agreements or (iii) Taxes imposed against
the Indenture Trustee in its individual capacity against which the Lessee has
not indemnified (and is not obligated to indemnify) the Indenture Trustee in
such capacity.
Independent Appraisal. An appraisal conducted pursuant to Section
4.03 of the Lease.
Independent Investment Banker. An independent investment banking
institution of national standing appointed by the Lessee that is independent
in fact, does not have any direct financial interests, or any material
indirect financial interest, in the Lessee or any Affiliate of the Lessee, and
is not connected with the Lessee or any Affiliate of the Lessee, as an
officer, employee, promoter, underwriter, trustee, partner, director or Person
performing similar functions; provided, that if the Indenture Trustee shall
not have received written notice of such an appointment at least 10 days prior
to the Prepayment Date, "Independent Investment Banker" shall mean such an
institution appointed by the Indenture Trustee.
Initial Owner Participant. Federal Express Corporation, a Delaware
corporation.
Intercreditor Agreement. The Intercreditor Agreement dated as of May
1, 1997, among the Pass Through Trustee, the Class A Liquidity Provider, the
Class B Liquidity Provider and the Subordination Agent.
Interest Drawing. Has the meaning specified in Section 1.01 of the
Intercreditor Agreement.
Invoice. The invoice for the Aircraft given by the Lessee to the
Lessor.
Lease. The Lease Agreement (Federal Express Corporation Trust No.
N584FE) dated as of May 1, 1997, entered into by the Lessor and the Lessee
concurrently with the execution and delivery of the Indenture, including,
without limitation, supplementation by one or more Lease Supplements entered
into pursuant to the applicable provisions of the Lease.
Lease Supplement. The Lease Supplement No. 1 (Federal Express
Corporation Trust No. N584FE) to be dated the Delivery Date, substantially in
the form of Exhibit A to the Lease.
Lease Term. The period commencing on the Delivery Date and ending at
the end of the Basic Term.
Lessee. Federal Express Corporation, a Delaware corporation.
Lessee Documents. Has the meaning set forth in Section 6.01(b) of the
Participation Agreement.
Lessor. State Street Bank and Trust Company of Connecticut, National
Association, a national banking association, not in its individual capacity
but solely as Owner Trustee under the Trust Agreement.
Lessor's Estate. All estate, right, title and interest of the Owner
Trustee in and to the Collateral Account, the Liquid Collateral, the Aircraft,
the Lease, any Lease Supplement, the Participation Agreement, the Bills of
Sale, the Modification Agreement, the GTA, the Engine Warranty Assignment, the
Engine Consent, any warranty with respect to the Airframe and the Engines, all
amounts of Basic Rent, Renewal Rent and Supplemental Rent, including without
limitation, insurance proceeds (other than insurance proceeds payable to or
for the benefit of either the Owner Trustee in its individual capacity or the
Owner Participant) and requisition, indemnity or other payments of any kind
for or with respect to the Aircraft (except amounts owing to the Owner
Participant or to the Owner Trustee in its individual capacity, or to any of
their respective directors, officers, employees and agents pursuant to
Articles 8 and 9 of the Participation Agreement). Notwithstanding the
foregoing, "Lessor's Estate" shall not include any Excepted Payment.
Lessor's Liens. Liens against, on or with respect to the Aircraft,
the Lessor's Estate or the Trust Indenture Estate or any part thereof, title
thereto or any interest therein arising as a result of (i) claims against the
Lessor, in its individual capacity or as Owner Trustee, the Owner Participant
or any Affiliate of such Owner Participant, in each case not related to the
transactions contemplated by the Operative Agreements, (ii) acts or omissions
of the Lessor in its individual capacity or as Owner Trustee, and, in the case
of the Lessor in its individual capacity, arising from its gross negligence or
willful misconduct either not related to the transactions contemplated by or
expressly prohibited under the Operative Agreements and any act or omission of
the Owner Participant or any Affiliate of such Owner Participant which is not
related to the transactions contemplated by the Operative Agreements or is in
violation of any of the terms of the Operative Agreements, (iii) Taxes or
Expenses imposed against the Lessor, in its individual capacity or as Owner
Trustee, or the Owner Participant or any Affiliate of such Owner Participant,
the Lessor's Estate or the trust created by the Trust Agreement which are not
required to be indemnified against by the Lessee pursuant to the Tax Indemnity
Agreement or by reason of Section 8.01(b) or 9.01(b) of the Participation
Agreement, or (iv) claims against the Lessor or the Owner Participant arising
from the voluntary transfer by the Lessor or the Owner Participant of its
interests in the Aircraft other than a transfer of the Aircraft resulting from
an action or at the direction of the Lessee pursuant to Section 4.02(a) or
Article 8, 9, 10 or 11 of the Lease and other than a transfer pursuant to the
exercise of the remedies set forth in Article 17 of the Lease.
Lien. Any mortgage, pledge, lien, charge, encumbrance, lease or
security interest or other similar interest.
Liquid Collateral. All amounts and securities deposited from time to
time in the Collateral Account and all the products, investments, earnings and
proceeds of the foregoing, including, but not limited to, all proceeds of the
investment or conversion thereof, voluntary or involuntary, into cash,
Specified Investments or other property, all rights to payment of any and
every kind, and other forms of obligations, and instruments and other property
which at any time constitute all or part or are included in the proceeds of
any of the foregoing.
Liquidity Facility. Has the meaning specified in Section 1.01 of the
Intercreditor Agreement.
Liquidity Provider. Has the meaning specified in Section 1.01 of the
Intercreditor Agreement.
Losses. Has the meaning specified in Section 17.02(a) of the
Participation Agreement.
Loss Payee. Has the meaning specified in Section 13.02(b)(i) of the
Lease.
Majority in Interest of Certificate Holders. As of a particular date
of determination, the Holders of more than 50% of the aggregate unpaid
principal amount of all Certificates outstanding as of such date excluding for
purposes of this definition any Certificates held by (i) the Owner Trustee or
the Owner Participant unless all Certificates then outstanding shall be held
by such Owner Participant, (ii) the Lessee or (iii) any Affiliate of any
thereof.
Make-Whole Premium. An amount determined as of the day before the
applicable Prepayment Date (or date of purchase, as the case may be) which an
Independent Investment Banker determines to be equal to the excess, if any, of
(i) the present value of the remaining scheduled payments of such principal
amount or portion thereof and interest thereon (excluding interest accrued
from the immediately preceding Payment Date to such Prepayment Date or date of
purchase, as the case may be) to the Maturity of such Certificate in
accordance with generally accepted financial practices assuming a 360-day year
consisting of twelve 30-day months at a discount rate equal to the Treasury
Yield, all as determined by the Independent Investment Banker over (ii) the
outstanding principal amount of such Certificate plus accrued interest.
Mandatory Document Terms. The terms set forth on Schedule V to the
Participation Agreement.
Mandatory Economic Terms. The terms set forth on Schedule VI to the
Participation Agreement.
Manufacturer. McDonnell Douglas Corporation, a Maryland corporation.
Maturity. With respect to any Certificate, the date on which the
final principal amount of such Certificate is scheduled to be due and payable.
Modification Agreement. The Aircraft Modification Agreement dated as
of December 1, 1995 between the Lessee and the Manufacturer providing for the
refurbishing and reconfiguration of the Aircraft including any warranties
relating thereto, but only to the extent that the foregoing relates to the
Aircraft, to the extent assigned to the Owner Trustee pursuant to the Warranty
Bill of Sale.
Moody's. Moody's Investors Service, Inc.
Net Present Value of Rents. The net present value, as of the
Delivery Date, of Basic Rent set forth in Schedule II of the Lease, discounted
at a rate per semi-annual period equal to the Debt Rate.
Non-U.S. Person. Any Person other than a U.S. Person.
Obsolete Parts. Parts which the Lessee in good faith determines to be
obsolete or no longer suitable or appropriate for use on the Airframe or any
Engine.
Officer's Certificate. When delivered pursuant to the Indenture, a
certificate signed by a Responsible Officer of the Lessee or the Owner
Trustee, as the case may be, and delivered to the Indenture Trustee. Each
such certificate shall include the statements provided for in Section 15.07 of
the Indenture.
Operative Agreements. The Participation Agreement, the Trust
Agreement, the Bills of Sale, the Modification Agreement, the GTA, the Engine
Warranty Assignment, the Lease, the Lease Supplement, the Owner Trustee
Guaranty, if any, any Ancillary Agreement entered into by or with the written
consent of the Indenture Trustee, which by its terms is an Operative
Agreement, the Certificates outstanding at the time of reference, the
Indenture, the Indenture and Security Agreement Supplement, the Engine
Consent, each Liquidity Facility, the Intercreditor Agreement, the Collateral
Account Control Agreement and the Tax Indemnity Agreement.
Opinion of Counsel. When delivered pursuant to the Indenture, a
written opinion of legal counsel, who in the case of counsel (a) for the
Lessee may be (i) an attorney employed by the Lessee who is generally
empowered to deliver such written opinions, (ii) Davis Polk & Wardwell or a
successor firm or (iii) other counsel designated by the Lessee and reasonably
satisfactory to the Indenture Trustee and (b) for the Owner Trustee or the
Indenture Trustee, an attorney selected by such Person and, in the case of the
Owner Trustee, reasonably satisfactory to the Indenture Trustee.
Outstanding. When used with respect to Certificates, as of the date
of determination and subject to the provisions of Section 10.04 of the
Indenture, all Certificates theretofore executed and delivered under the
Indenture, with the exception of the following:
(i) Certificates theretofore cancelled by the Indenture Trustee or
delivered to the Indenture Trustee for cancellation pursuant to
Section 2.08 of the Indenture or otherwise;
(ii) Certificates for which prepayment money in the necessary amount
has been theretofore deposited with the Indenture Trustee in trust
for the Holders of such Certificates pursuant to Section 14.01 of the
Indenture; provided, that if such Certificates are to be prepaid,
notice of such prepayment has been duly given pursuant to the
Indenture or provision therefor satisfactory to the Indenture Trustee
has been made; and
(iii) Certificates in exchange for or in lieu of which other
Certificates have been executed and delivered pursuant to Article II
of the Indenture.
Owner Participant. The Person to whom on the Delivery Date (or, if
earlier, the Transfer Date) the Initial Owner Participant shall transfer its
Beneficial Interest pursuant to Section 3.02 of the Participation Agreement
and any successors thereto, and any Person to which the Owner Participant
transfers, in accordance with the Trust Agreement, its right, title and
interest in and to the Operative Agreements and the Lessor's Estate.
Owner Trustee. SSB, not in its individual capacity except as
otherwise expressly stated, but solely as Owner Trustee under the Trust
Agreement.
Owner Trustee Guarantor. The provider, if any, of an Owner Trustee
Guaranty.
Owner Trustee Guaranty. Any guaranty delivered in compliance with
Section 11.01(b)(ii) of the Participation Agreement.
Owner's Economic Return. The Owner Participant's anticipated net
after-tax yield and aggregate after-tax cash flow during the Basic Term,
utilizing the multiple investment sinking fund method of analysis, computed on
the basis of the same methodology and assumptions as were utilized by the
Owner Participant in determining Basic Rent, Stipulated Loss Value and
Termination Value percentages and EBO Price, as such assumptions may be
adjusted for events which have been the basis of adjustments to Rent pursuant
to Section 3.04 of the Lease.
Participation Agreement. The Participation Agreement (Federal Express
Corporation Trust No. N584FE), dated as of May 1, 1997, among the Lessee, the
Owner Trustee not in its individual capacity except as otherwise expressly
provided therein, but solely as owner trustee, the Owner Participant, the
Indenture Trustee not in its individual capacity except as otherwise expressly
provided therein, but solely as indenture trustee, the Pass Through Trustee
not in its individual capacity except as otherwise expressly provided therein,
but solely as pass through trustee and the Subordination Agent not in its
individual capacity except as otherwise expressly provided therein, but solely
as subordination agent.
Parts. All appliances, parts, components, instruments, appurtenances,
accessories, furnishings and other equipment of whatever nature (other than
complete Engines or engines) which may from time to time be incorporated or
installed in or attached to the Airframe or any Engine or title to which
remains vested in the Lessor pursuant to Article 8 of the Lease.
Pass Through Agreement. The Pass Through Trust Agreement dated as of
May 1, 1997 between the Lessee and the Pass Through Trustee.
Pass Through Certificates. Any of the Pass Through Certificates,
1997-1-A, the Pass Through Certificates, 1997-1-B or the Pass Through
Certificates, 1997-1-C, in each case as issued by the related Pass Through
Trust; and "Pass Through Certificates" means all of the Pass Through
Certificates issued by each of the Pass Through Trusts.
Pass Through Closing Date. The Business Day on which the sale of the
Pass Through Certificates to the Underwriters pursuant to the Underwriting
Agreement takes place.
Pass Through Trust. The Federal Express Corporation 1997-1 Pass
Through Trust Class A, Federal Express Corporation 1997-1 Pass Through Trust
Class B and Federal Express Corporation 1997-1 Pass Through Trust Class C, in
each case formed pursuant to the related Series Supplement in accordance with
the Pass Through Agreement; and "Pass Through Trusts" means all of such Pass
Through Trusts.
Pass Through Trustee. First Security Bank, National Association, a
national banking association, in its capacity as Pass Through Trustee under
the Pass Through Agreement and each Pass Through Trust.
Past Due Rate. In respect of (A) any amount payable to the Owner
Participant or the Owner Trustee a rate per annum during the period from and
including the due date to but excluding the date on which such amount is paid
in full equal to 2% plus the Debt Rate and (B) any principal of or interest on
any Certificate or any other amount payable under the Indenture, any
Certificate or any other Operative Agreement that is not paid when due
(whether at Maturity, by acceleration, by optional or mandatory prepayment or
otherwise) to any Holder, the Indenture Trustee or the Pass Through Trustee, a
rate per annum during the period from and including the due date to but
excluding the date on which such amount is paid in full equal to (i) in the
case of any such amount payable to the Holder of any Certificate, 2% plus the
interest rate applicable to such Certificate and (ii) in the case of any other
such amount, 2% plus the Debt Rate.
Payment Date. Each January 15 and July 15 commencing on July 15,
1997.
Payment Default. Any event specified in Section 16.01(a) or 16.01(b)
of the Lease which with the giving of notice or lapse of time or both would
constitute an Event of Default.
Permitted Investments. Those investments enumerated in Section
23.01(a) (i), (ii), (iii) and (iv) of the Lease.
Person. Any individual, sole proprietorship, partnership, joint
venture, joint stock company, trust, unincorporated organization, association,
corporation, institution, entity or government (federal, state, local, foreign
or any agency, instrumentality, division or body thereof).
Preliminary Notice. Has the meaning specified in Section 4.01(a) of
the Lease.
Premium Termination Date. With respect to the Series A Certificates,
December 27, 2011, with respect to the Series B Certificates, February 5, 2010
and with respect to the Series C Certificates, March 22, 2007.
Prepayment Date. Has the meaning specified in Section 6.02(b) of the
Indenture.
Prepayment Price. Has the meaning specified in Section 6.02(b) of the
Indenture.
Principal Amount. With respect to a Certificate means the stated
original principal amount of such Certificate and, with respect to all
Certificates, means the aggregate stated original principal amounts of all
Certificates.
Property. Any right or interest in or to property of any kind
whatsoever, whether real, personal or mixed and whether tangible or intangible.
Proposed Termination Date. Has the meaning specified in Section
10.01(a) of the Lease.
Purchase Price. The amount specified as such in Ancillary Agreement
I.
Rating Agencies. Collectively, at any time, each nationally
recognized rating agency which shall have been requested to rate the Pass
Through Certificates and which shall then be rating the Pass Through
Certificates. The initial Rating Agencies will be Moody's and S&P.
Rating Agency Confirmation. With respect to any Operative Agreement
that is to be modified in any material respect on the Delivery Date or the
Transfer Date, if applicable, a written confirmation from each of the Rating
Agencies that the use of such Operative Agreement with such modifications
would not result in (i) a reduction of the rating for any Class of Pass
Through Certificates below the then current rating for such Class of Pass
Through Certificates or (ii) a withdrawal or suspension of the rating of any
Class of Pass Through Certificates.
Record Date. With respect to Payment Dates under the Indenture
(except a date for payment of defaulted interest), December 31 for January 15
Payment Dates and June 30 for July 15 Payment Dates, whether or not such date
is a Business Day.
Recourse Amount. Has the meaning specified in Section 17.10 of the
Participation Agreement.
Refinancing. A non-recourse loan to the Lessor arranged pursuant to
Section 15.01 of the Participation Agreement.
Register. Has the meaning set forth in Section 3.02 of the Indenture.
Registrar. Has the meaning set forth in Section 3.02 of the
Indenture.
Regulation D. Regulation D of the Board of Governors of the Federal
Reserve System (or any successor), as the same may be modified and
supplemented and in effect from time to time.
Remaining Weighted Average Life. On a given date with respect to any
Certificate the number of days equal to the quotient obtained by dividing (i)
the sum of each of the products obtained by multiplying (a) the amount of each
then remaining scheduled payment of principal of such Certificate by (b) the
number of days from and including such prepayment date to but excluding the
dates on which each such payment of principal is scheduled to be made; by (ii)
the then outstanding principal amount of such Certificate.
Renewal Rent. The amount payable by the Lessee as rent in accordance
with Section 4.01 of the Lease during any Renewal Term.
Renewal Term. Any Fixed Renewal Term or Fair Market Renewal Term with
respect to which the Lessee has exercised its option to renew the Lease
pursuant to Section 4.01(a) thereof.
Rent. All payments due from the Lessee under the Lease as Basic Rent,
Renewal Rent and Supplemental Rent, collectively.
Rent Payment Date. June 15, 2019 and each January 15 and July 15
commencing on January 15, 1998, and continuing thereafter during the Term.
Reoptimization Date. Has the meaning set forth in Section 2.03(b) of
the Participation Agreement.
Replacement Aircraft. Any aircraft substituted for the Aircraft
pursuant to Section 11.03(a) of the Lease.
Replacement Airframe. Has the meaning set forth in Section 11.03 of
the Lease.
Replacement Engine. A General Electric CF6-80C2-D1F engine (or an
engine of the same or another manufacturer) of equal or greater value,
remaining useful life and utility as the Engine being replaced, together with
all Parts relating to such engine; provided, however, that if such replacement
engine is not a General Electric CF6-80C2-D1F engine, such replacement engine
must then be commonly used in the commercial aviation industry on McDonnell
Douglas MD-11 airframes.
Responsible Officer. With respect to the Owner Trustee (except for
purposes of the Trust Agreement in which case the definition of Responsible
Officer set forth in Section 3.10 of the Trust Agreement is applicable) or the
Indenture Trustee, any officer in its Corporate Trust Administration, as the
case may be, designated by such Person to perform obligations under the
Operative Agreements, and with respect to any other party, any corporate
officer or (except in the case of the Owner Participant) other employee of a
party who, in the normal performance of his or her operational
responsibilities, with respect to the subject matter of any covenant,
agreement or obligation of such party pursuant to any Operative Agreement,
would have responsibility for and knowledge of such matter and the
requirements of any Operative Agreement with respect thereto.
S&P. Standard & Poor's Ratings Group.
Scheduled Delivery Date. The Delivery Date specified in the Delivery
Notice pursuant to Section 3.01 of the Participation Agreement.
SEC. The Securities and Exchange Commission of the United States and
any successor agencies or authorities.
Secured Obligations. Has the meaning specified in the Granting
Clause of the Indenture.
Securities Act. The Securities Act of 1933, as amended.
Series "A" or "Series A Certificates". Certificates issued and
designated as "Series A" under the Indenture, in the Principal Amount and
maturities and bearing interest as specified in Exhibit B to the Indenture
under the heading "Series A".
Series "B" or "Series B Certificates". Certificates issued and
designated as "Series B" under the Indenture, in the Principal Amount and
maturities and bearing interest as specified in Exhibit B to the Indenture
under the heading "Series B".
Series "C" or "Series C Certificates". Certificates issued and
designated as "Series C" under the Indenture, in the Principal Amount and
maturities and bearing interest as specified in Exhibit B to the Indenture
under the heading "Series C".
Series Supplement or Series Supplements. The Series Supplement
1997-1-A to be executed and delivered by the Lessee and the Pass Through
Trustee, the Series Supplement 1997-1-B to be executed and delivered by the
Lessee and the Pass Through Trustee or the Series Supplement 1997-1-C to be
executed and delivered by the Lessee and the Pass Through Trustee.
Sinking Fund Redemption Date. Has the meaning specified in Section
6.06 of the Indenture.
Sinking Fund Redemption Price. Has the meaning specified in Section
6.06 of the Indenture.
Special Aviation Counsel. Daugherty, Fowler & Peregrin.
Specified Investments. Shall mean (a) direct obligations of the
United States of America or obligations fully guaranteed by the United States
of America; (b) commercial paper rated A-1/P-1 by S&P and Moody's,
respectively or, if such ratings are unavailable, rated by any nationally
recognized rating organization in the United States equal to the highest
rating assigned by such rating organization; (c) investments in negotiable
certificates of deposit, time deposits, banker's acceptances, commercial paper
or other direct obligations of, or obligations guaranteed by, commercial banks
organized under the laws of the United States or of any political subdivision
thereof (or any U.S. branch of a foreign bank) with issuer ratings of at least
B/C by Thomson Bankwatch, having maturities no later than 90 days following
the date of such investment; (d) overnight federal funds transactions with
members of the Federal Reserve System arranged by federal funds brokers; or
(e) overnight repurchase agreements with respect to the securities described
in clause (a) above entered into with an office of a bank or trust company
which is located in the United States of America or any bank or trust company
which is organized under the laws of the United States or any state thereof
and has capital, surplus and undivided profits aggregating at least $500
million.
SSB. State Street Bank and Trust Company of Connecticut, National
Association, a national banking association.
Stipulated Loss Value. As of any Stipulated Loss Value Determination
Date during the Basic Term, the amount determined by multiplying the Purchase
Price by the percentage set forth in Schedule III of the Lease under the
heading "Stipulated Loss Value Factor" opposite such date (as such Schedule
III may be adjusted from time to time as provided in Section 3.04 of the
Lease), and during any Renewal Term, the amount determined pursuant to Section
4.01(b) of the Lease. Notwithstanding any other provisions of the Lease or
the Participation Agreement or the Indenture, each Stipulated Loss Value for
the Aircraft shall be, under any circumstances and in any event, an amount,
together with so much of the arrears portion of Basic Rent due and owing
through the date of payment of Stipulated Loss Value as does not constitute an
Excepted Payment, at least sufficient to pay in full as of such date of
payment the aggregate unpaid principal amount of and accrued interest on the
Certificates outstanding on such date of payment. Subject to the immediately
preceding sentence, it is understood and agreed that the amounts set forth on
Schedule III of the Lease, for dates other than Rent Payment Dates on which
arrears Basic Rent is due, fully reflect appropriate Basic Rent accruals and
credits of unearned Basic Rent and, accordingly, no further accrual or credit
shall be required whenever Stipulated Loss Value is to be calculated with
reference to any such date.
Stipulated Loss Value Determination Date. Each date set forth on
Schedule III of the Lease.
Subordination Agent. First Security Bank, National Association, a
national banking association, not in its individual capacity but solely as
Subordination Agent.
Supplemental Rent. (a) All amounts, liabilities and obligations
which the Lessee assumes or agrees to perform or pay under the Lease or under
the Participation Agreement or Tax Indemnity Agreement or any Ancillary
Agreement or any other Operative Agreement to SSB, the Lessor, the Owner
Participant, the Indenture Trustee, the Subordination Agent, any Liquidity
Provider or others, including, without limitation, payments of Stipulated Loss
Value, EBO Price and amounts calculated by reference to Termination Value, and
all amounts required to be paid by Lessee under the agreements, covenants and
indemnities contained in the Lease or in the Participation Agreement or the
Tax Indemnity Agreement or any other Operative Agreement, but excluding Basic
Rent and (b) all amounts that the Owner Trustee is obligated to pay in
accordance with clause (b) of the last paragraph of Section 2.04 of the
Indenture.
Tax. Has the meaning set forth in Section 8.01(a) of the
Participation Agreement.
Tax Indemnity Agreement. The Tax Indemnity Agreement (Federal
Express Corporation Trust No. N584FE), dated as of May 1, 1997, between the
Lessee and the Owner Participant.
Term. The Basic Term and any Renewal Term unless the Lease is
terminated earlier pursuant to its terms.
Termination Date. A Rent Payment Date during the Basic Term that is
on or after the fifth anniversary of the Delivery Date in the case of Article
10 of the Lease, and in the case of (i) Section 4.02(a)(A) of the Lease the
Rent Payment Date falling on July 15, 2011 or January 15, 2016, as the case
may be, (ii) Section 4.02(a)(D) or (E) of the Lease, a Rent Payment Date that
is on or after the fifth anniversary of the Delivery Date and (iii) Section
4.02(a)(F) of the Lease, January 15, 2014.
Termination Value. As of any Termination Date, the amount determined
by multiplying the Purchase Price by the percentage set forth in Schedule IV
of the Lease under the heading "Termination Value Factor" opposite such
Termination Date (as such Schedule IV may be adjusted from time to time as
provided in Section 3.04 of the Lease). Notwithstanding any other provisions
of the Lease, the Participation Agreement or the Indenture, each Termination
Value shall be, under any circumstances and in any event, an amount, together
with so much of the arrears portion of Basic Rent due and owing through the
date of payment of any amount calculated by reference to Termination Value as
does not constitute an Excepted Payment, at least sufficient to pay in full as
of such date of payment the aggregate unpaid principal amount of and accrued
interest on the Certificates outstanding on such date of payment. Subject to
the immediately preceding sentence, it is understood and agreed that the
amounts set forth on Schedule IV of the Lease, for dates other than Rent
Payment Dates on which arrears Basic Rent is due, fully reflect appropriate
Basic Rent accruals and credits of unearned Basic Rent and, accordingly, no
further accrual or credit shall be required whenever Termination Value is to
be calculated with reference to any such date.
Transfer Date. Has the meaning set forth in Section 2.02(b) of the
Participation Agreement.
Transaction Costs. Those costs and expenses set forth in Section
10.01(a) of the Participation Agreement.
Transportation Code. Title 49 of the United States Code, as amended
and in effect on the date of the Lease or as subsequently amended, or any
successor or substituted legislation at the time in effect and applicable, and
the regulations promulgated pursuant thereto.
Treasury Yield. At the time of determination with respect to any
Certificate, the interest rate (expressed as a semi-annual equivalent and as a
decimal and, in the case of United States Treasury bills, converted to a bond
equivalent yield) determined to be the per annum rate equal to the semi-annual
yield to maturity for United States Treasury securities maturing on the
Average Life Date on such Certificate and trading in the public securities
markets either as determined by interpolation between the most recent weekly
average yield to maturity for two series of United States Treasury securities,
trading in public securities markets, (i) one maturing as close as possible to,
but earlier than, the Average Life Date of such Certificate and (ii) the other
maturing as close as possible to, but later than, the Average Life Date of
such Certificate. In each case as published in the most recent H.15(519) or,
if a weekly average yield to maturity for United States Treasury securities
maturing on the Average Life Date of such Certificate is reported on the most
recent H.15 (519), such weekly average yield to maturity as published in such
H.15(919). "H.15(519)" means the weekly statistical release designated as
such, or any successor publication, published by the Board of Governors of the
Federal Reserve System. The date of determination of a Make-Whole Premium
will be the third Business Day prior to the applicable prepayment date and the
"most recent H.15(519)" means the H.15(519) published prior to the close of
business on the third Business Day prior to the applicable prepayment date.
Trust Agreement. The Trust Agreement (Federal Express Corporation
Trust No. N584FE), dated as of May 1, 1997, between the Owner Participant and
the Owner Trustee in its individual capacity.
Trust Estate. The Lessor's Estate.
Trust Indenture Act. The Trust Indenture Act of 1939, as amended.
Trust Indenture Estate. All estate, right, title and interest of the
Indenture Trustee in and to any of the property, rights, interests and
privileges granted to the Indenture Trustee pursuant to the Granting Clause of
the Indenture, other than Excepted Payments and any and all other rights of
the Owner Trustee or the Owner Participant expressly reserved to the Owner
Trustee or the Owner Participant pursuant to the Indenture.
Underwriters. Morgan Stanley & Co. Incorporated, First Chicago
Capital Markets, Inc., Goldman, Sachs & Co. and J.P. Morgan & Co.
Underwriting Agreement. The Underwriting Agreement dated May 22, 1997
among the Lessee and the Underwriters.
United States, U.S. or US. The United States of America.
U.S. Air Carrier. Any United States air carrier as to which there is
in force a certificate issued pursuant to Section 41102(a) or Section 41103 of
the Transportation Code, and as to which there is in force an air carrier
operating certificate issued pursuant to Chapter 447 of the Transportation
Code and Part 121 of the regulations under such Transportation Code, for
aircraft capable of carrying ten (10) or more individuals or 6,000 pounds or
more of cargo, or which may operate as an air carrier by certification or
otherwise under any successor or substitute provision thereof or in absence
thereof.
U.S. Person. A Person described in Section 7701(a)(30) of the Code.
Warranty Bill of Sale. The full warranty bill of sale covering the
Aircraft (and specifically referring to each Engine) executed by the Lessee,
as seller in favor of the Owner Trustee, as buyer, and to be dated the
Delivery Date.
TRUST INDENTURE AND SECURITY AGREEMENT
(FEDERAL EXPRESS CORPORATION TRUST NO. N587FE)
Dated as of December 1, 1996
Amended and Restated as of May 1, 1997
between
WILMINGTON TRUST COMPANY,
Not in its Individual
Capacity, but solely
As Owner Trustee,
Owner Trustee
and
FIRST SECURITY BANK, NATIONAL ASSOCIATION,
Not in its Individual
Capacity, but solely
As Indenture Trustee,
Indenture Trustee
COVERING ONE MCDONNELL DOUGLAS MD-11F AIRCRAFT
SERIAL NO. 48489, REGISTRATION NO. N587FE
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TABLE OF CONTENTS
Page
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Initial Recitals......................................................... 1
Granting Clause.......................................................... 2
Habendum Clause.......................................................... 5
ARTICLE I
DEFINITIONS
Section 1.01. Definitions.............................................. 8
ARTICLE II
ISSUE, EXECUTION, FORM AND
REGISTRATION OF CERTIFICATES
Section 2.01. Authentication and Delivery of Certificates.............. 8
Section 2.02. Execution of Certificates................................ 8
Section 2.03. Certificate of Authentication............................ 9
Section 2.04. Form and Terms of Certificates; Payments of Principal,
Make-Whole Premium and Interest.......................... 9
Section 2.05. Payments from Trust Indenture Estate Only................ 12
Section 2.06. Registration, Transfer and Exchange...................... 13
Section 2.07. Mutilated, Defaced, Destroyed, Lost and Stolen
Certificates............................................. 14
Section 2.08. Cancellation of Certificates; Destruction Thereof........ 15
Section 2.09. Temporary Certificates................................... 15
Section 2.10. Termination of Interest in Trust Indenture Estate........ 16
Section 2.11. Certificates in Respect of Replacement Aircraft.......... 16
Section 2.12. Assumption of Obligations Under Certificates and Other
Operative Agreements..................................... 16
Section 2.13. Subordination............................................ 16
ARTICLE III
COVENANTS
Section 3.01. Payment of Principal, Make-Whole Premium and Interest.... 17
Section 3.02. Offices for Payments, etc................................ 17
Section 3.03. Appointment to Fill a Vacancy in Office of Indenture
Trustee.................................................. 18
Section 3.04. Paying Agents............................................ 18
Section 3.05. Covenants of WTC and the Owner Trustee................... 18
Section 3.06. [Reserved]............................................... 19
Section 3.07. Disposal of Trust Indenture Estate....................... 19
Section 3.08. No Representations or Warranties as to Aircraft or
Documents................................................ 19
Section 3.09. Further Assurances; Financing Statements................. 20
ARTICLE IV
HOLDER LISTS
Section 4.01. Holder Lists; Ownership of Certificates.................. 20
ARTICLE V
RECEIPT, DISTRIBUTION AND APPLICATION OF
INCOME FROM THE TRUST INDENTURE ESTATE
Section 5.01. Basic Rent Distribution.................................. 21
Section 5.02. Event of Loss and Replacement; Prepayment................ 22
Section 5.03. Payment After Indenture Event of Default, etc............ 23
Section 5.04. Certain Payments......................................... 25
Section 5.05. Other Payments........................................... 25
Section 5.06. Payments to Owner Trustee................................ 26
Section 5.07. Application of Payments.................................. 26
Section 5.08. Investment of Amounts Held by Indenture Trustee.......... 26
Section 5.09. Withholding Taxes........................................ 27
ARTICLE VI
PREPAYMENT OF CERTIFICATES
Section 6.01. No Prepayment Prior to Maturity.......................... 28
Section 6.02. Prepayment of Certificates............................... 28
Section 6.03. Notice of Prepayment to Holders.......................... 30
Section 6.04. Deposit of Prepayment Price and Sinking Fund Redemption
Price.................................................... 30
Section 6.05. Certificates Payable on Prepayment Date.................. 30
Section 6.06. Mandatory Sinking Fund Redemption........................ 31
ARTICLE VII
INDENTURE EVENTS OF DEFAULT; REMEDIES
OF INDENTURE TRUSTEE AND HOLDERS
Section 7.01. Indenture Event of Default............................... 32
Section 7.02. Remedies................................................. 35
Section 7.03. Return of Aircraft, etc.................................. 37
Section 7.04. Indenture Trustee May Prove Debt......................... 40
Section 7.05. Remedies Cumulative...................................... 42
Section 7.06. Suits for Enforcement.................................... 42
Section 7.07. Discontinuance of Proceedings............................ 42
Section 7.08. Limitations on Suits by Holders.......................... 43
Section 7.09. Unconditional Right of Holders to Receive Principal,
Interest and Make-Whole Premium, and to Institute
Certain Suits............................................ 43
Section 7.10. Control by Holders....................................... 43
Section 7.11. Waiver of Past Indenture Default......................... 44
Section 7.12. Notice of Indenture Default.............................. 44
Section 7.13. Waiver of Appraisement, etc.; Laws....................... 45
ARTICLE VIII
RIGHTS OF THE OWNER TRUSTEE
AND THE OWNER PARTICIPANTS
Section 8.01. Certain Rights of Owner Trustee and Owner Participants... 45
Section 8.02. Owner Participants' Right to Elect to Prepay or Purchase
the Certificates......................................... 49
Section 8.03. Certain Rights of Owner Participants..................... 50
ARTICLE IX
CONCERNING THE INDENTURE TRUSTEE
Section 9.01. Acceptance of Trusts..................................... 52
Section 9.02. Duties and Responsibilities of the Indenture Trustee;
During an Indenture Event of Default; Prior to an
Indenture Event of Default............................... 52
Section 9.03. Certain Rights of the Indenture Trustee.................. 54
Section 9.04. Indenture Trustee Not Responsible for Recitals,
Disposition of Certificates or Application of Proceeds
Thereof.................................................. 55
Section 9.05. Indenture Trustee and Agents May Hold Certificates;
Collections, etc......................................... 55
Section 9.06. Moneys Held by Indenture Trustee......................... 56
Section 9.07. Right of Indenture Trustee to Rely on Officer's
Certificate, etc......................................... 56
Section 9.08. Replacement Airframes and Replacement Engines............ 56
Section 9.09. Indenture and Security Agreement Supplement for
Replacements............................................. 59
Section 9.10. Effect of Replacement.................................... 60
Section 9.11. Compensation............................................. 60
ARTICLE X
CONCERNING THE HOLDERS
Section 10.01. Evidence of Action Taken by Holders..................... 60
Section 10.02. Proof of Execution of Instruments and of Holding of
Certificates............................................ 61
Section 10.03. Holders to Be Treated as Owners......................... 61
Section 10.04. Certificates Owned by Owner Trustee and the Lessee
Deemed Not Outstanding.................................. 61
Section 10.05. Right of Revocation of Action Taken..................... 62
Section 10.06. ERISA................................................... 63
ARTICLE XI
INDEMNIFICATION OF INDENTURE
TRUSTEE BY OWNER TRUSTEE
ARTICLE XII
SUCCESSOR TRUSTEES
Section 12.01. Notice of Successor Owner Trustee....................... 64
Section 12.02. Resignation and Removal of Indenture Trustee;
Appointment of Successor................................ 64
Section 12.03. Persons Eligible for Appointment as Indenture Trustee... 65
Section 12.04. Acceptance of Appointment by Successor Trustee.......... 66
Section 12.05. Merger, Conversion, Consolidation or Succession to
Business of Indenture Trustee........................... 67
Section 12.06. Appointment of Separate Trustees........................ 67
ARTICLE XIII
SUPPLEMENTS AND AMENDMENTS TO THIS
TRUST INDENTURE AND OTHER DOCUMENTS
Section 13.01. Supplemental Indentures Without Consent of Holders...... 69
Section 13.02. Supplemental Indentures With Consent of Holders......... 71
Section 13.03. Effect of Supplemental Indenture........................ 72
Section 13.04. Documents to Be Given to Indenture Trustee.............. 72
Section 13.05. Notation on Certificates in Respect of Supplemental
Indentures.............................................. 73
Section 13.06. No Request Necessary for Lease Supplement or Indenture
and Security Agreement Supplement....................... 73
Section 13.07. Notices to Liquidity Providers.......................... 73
ARTICLE XIV
SATISFACTION AND DISCHARGE OF INDENTURE;
UNCLAIMED MONEYS
Section 14.01. Satisfaction and Discharge of Indenture; Termination of
Indenture............................................... 73
Section 14.02. Application by Indenture Trustee of Funds Deposited for
Payment of Certificates................................. 75
Section 14.03. Repayment of Moneys Held by Paying Agent................ 75
Section 14.04. Transfer of Moneys Held by Indenture Trustee and Paying
Agent Unclaimed for Two Years and Eleven Months......... 75
ARTICLE XV
MISCELLANEOUS
Section 15.01. Capacity in Which Acting................................ 76
Section 15.02. No Legal Title to Trust Indenture Estate in Holders..... 76
Section 15.03. Sale of Trust Indenture Estate by Indenture Trustee is
Binding................................................. 76
Section 15.04. Indenture for Benefit of Owner Trustee, Indenture
Trustee, Owner Participants, Holders and Liquidity
Providers............................................... 76
Section 15.05. No Action Contrary to the Lessee's Rights Under the
Lease................................................... 76
Section 15.06. Notices................................................. 77
Section 15.07. Officer's Certificates and Opinions of Counsel;
Statements to Be Contained Therein...................... 78
Section 15.08. Severability............................................ 78
Section 15.09. No Oral Modifications or Continuing Waivers............. 79
Section 15.10. Successors and Assigns.................................. 79
Section 15.11. Headings................................................ 79
Section 15.12. Normal Commercial Relations............................. 79
Section 15.13. Governing Law; Counterparts............................. 79
Exhibit A -- Form of Indenture and Security Agreement Supplement
Exhibit B -- Form of Certificate
Schedule I -- [Reserved]
Schedule II -- Definitions
Schedule III -- Description of Original Indenture
TRUST INDENTURE AND SECURITY AGREEMENT
(FEDERAL EXPRESS CORPORATION TRUST NO. N587FE)
TRUST INDENTURE AND SECURITY AGREEMENT (FEDERAL EXPRESS CORPORATION
TRUST NO. N587FE) dated as of December 1, 1996, as amended and restated as of
May 1, 1997 (the "Indenture"), between WILMINGTON TRUST COMPANY, a Delaware
banking corporation, not in its individual capacity, except as otherwise
specifically set forth herein (when acting in such individual capacity,
"WTC"), but solely as owner trustee (the "Owner Trustee") under the Trust
Agreement, as defined herein, and FIRST SECURITY BANK, NATIONAL ASSOCIATION,
a national banking association, as Indenture Trustee hereunder (the "Indenture
Trustee").
W I T N E S S E T H:
WHEREAS, capitalized terms used herein shall have the respective
meanings set forth or referred to in Article I hereof;
WHEREAS, the Owner Participants and WTC entered into the Original
Trust Agreement whereby, among other things, the Owner Trustee declared a
certain trust for the use and ratable benefit of the Owner Participants,
subject, however, to the Lien of the Original Indenture;
WHEREAS, the Owner Trustee and the Indenture Trustee entered into the
Original Indenture for the benefit and security of the Original Loan
Participant and pursuant to which the Owner Trustee issued to the Original
Loan Participant the Original Loan Certificates as evidence of the loan made
by the Original Loan Participant to the Owner Trustee, the proceeds of which
were used by the Owner Trustee to pay a portion of the Purchase Price for the
Aircraft;
WHEREAS, the Original Indenture with respect to the Aircraft (as such
Aircraft is more particularly described in Schedule III attached hereto) was
recorded by the FAA and assigned a Conveyance Number as described on Schedule
III attached hereto;
WHEREAS, pursuant to Article 15 of the Original Participation
Agreement, the parties hereto desire to refinance the Original Loan
Certificates with the proceeds of the Certificates to be issued hereunder;
WHEREAS, in connection with the refinancing of the Original Loan
Certificates, the parties hereto desire to amend and restate the Original
Indenture in its entirety as this Indenture sets forth, in order to provide,
among other things, (i) for the issuance by the Owner Trustee of the
Certificates, as provided in the Participation Agreement, and (ii) for the
assignment, mortgage and pledge by the Owner Trustee to the Indenture Trustee,
as part of the Trust Indenture Estate hereunder, among other things, of
certain of the Owner Trustee's right, title and interest in and to the
Aircraft, the Lease and payments and other amounts received hereunder or
thereunder in accordance with the terms hereof (other than Excepted Payments),
as security for the Owner Trustee's obligations to the Holders and for the
ratable benefit and security of such Holders;
WHEREAS, the Owner Participants and WTC, prior to the execution and
delivery of this Indenture, entered into the Trust Agreement whereby the
Original Trust Agreement was amended and restated and pursuant to which, among
other things, the Owner Trustee is authorized and directed to execute and
deliver this Indenture;
WHEREAS, all things have been done to make the Certificates, when
executed by the Owner Trustee, and authenticated, issued and delivered
hereunder, the valid obligations of the Owner Trustee; and
WHEREAS, all things necessary to make this Indenture the valid,
binding and legal obligation of the Owner Trustee, enforceable in accordance
with its terms, have been done and performed and have happened.
NOW, THEREFORE, the parties agree that such Original Indenture be and
the same is hereby amended and restated to read in its entirety as follows:
GRANTING CLAUSE
NOW, THEREFORE, in consideration of the mutual promises contained
herein and to secure (i) the prompt payment of the principal of and Make-Whole
Premium, if any, and interest on, and all other amounts due with respect to,
all the Certificates from time to time outstanding under this Indenture and
all other amounts due hereunder and (ii) the performance and observance by the
Owner Trustee of all the agreements, covenants and provisions in this
Indenture, in the Certificates, in the Participation Agreement and in the
Lease contained for the benefit of the Holders of the Certificates, and the
prompt payment of any and all amounts from time to time owing under the
Participation Agreement by the Owner Trustee, the Owner Participants or the
Lessee to the Holders (collectively the "Secured Obligations") and for the
uses and purposes and subject to the terms and provisions of this Indenture,
and in consideration of the premises and of the covenants in this Indenture
and in the Certificates and of the purchase of the Certificates by their
Holders, and of the sum of $1 paid to the Owner Trustee by the Indenture
Trustee at or before the delivery of this Indenture, the receipt and
sufficiency of which is hereby acknowledged, the Owner Trustee has granted,
bargained, sold, assigned, transferred, conveyed, mortgaged, pledged, granted
a first priority security interest in and confirmed, and does hereby grant,
bargain, sell, assign, transfer, convey, mortgage, pledge and grant a first
priority security interest in and confirm to the Indenture Trustee, its
successors and assigns, in trust for the equal and ratable security and
benefit of the Holders from time to time of the Certificates, a first priority
security interest in and first mortgage Lien on all estate, right, title and
interest of the Owner Trustee in, to and under the following described
property, rights and privileges other than Excepted Payments, which
collectively, excluding Excepted Payments but including all property
specifically subjected to the Lien of this Indenture by the terms hereof, by
any Indenture and Security Agreement Supplement or any mortgage supplemental
to this Indenture, are included within the Trust Indenture Estate, subject
always to the rights granted to the Owner Trustee or the Owner Participants
hereunder and to the other terms and conditions of this Indenture:
(1) The Airframe, as the same is more particularly described in the
Indenture and Security Agreement Supplement and any airframe substituted in
replacement thereof pursuant to the provisions of this Indenture; the Engines,
as the same are more particularly described in the Indenture and Security
Agreement Supplement, whether or not such Engines shall be installed in or
attached to the Airframe or any other airframe, and any Replacement Engine
therefor; and all Parts in respect of the Airframe and the Engines and all
records, logs and other documents at any time maintained with respect to the
foregoing property;
(2) The Lease and all Rent thereunder, including, without limitation,
all amounts of Basic Rent and Supplemental Rent, and payments of any kind
thereunder and including all rights of the Owner Trustee to execute any
election or option or to give or receive any notice, consent, waiver or
approval under or in respect of the Lease or to accept any surrender of the
Aircraft or any part thereof as well as any rights, powers or remedies on the
part of the Owner Trustee, whether arising under the Lease or by statute or at
law or in equity or otherwise arising out of any Event of Default;
(3) The Modification Agreement (to the extent assigned to the Owner
Trustee pursuant to the Warranty Bill of Sale), the GTA, the Engine Warranty
Assignment and the Engine Consent, the Bills of Sale, the Ancillary Agreements
and the Participation Agreement (to the extent of amounts payable to the Owner
Trustee thereunder) (collectively, and together with the Lease, the Trust
Agreement and the Certificates, the "Indenture Documents"), including all
rights of the Owner Trustee to execute any election or option or to give or
receive any notice, consent, waiver or approval under or in respect of any of
the foregoing documents and instruments;
(4) All the tolls, rents, issues, profits, products, revenues and
other income (including sales proceeds) of the property subjected or required
to be subjected to the Lien of this Indenture, and all of the estate, right,
title and interest of the Owner Trustee in and to the same and every part of
said property;
(5) All moneys and securities (including Permitted Investments) now or
hereafter paid or deposited or required to be paid or deposited to or with the
Indenture Trustee by or for the account of the Owner Trustee pursuant to any
term of any Operative Agreement, except the Tax Indemnity Agreement, and held
or required to be held by the Indenture Trustee hereunder;
(6) All requisition proceeds with respect to the Aircraft or any part
thereof (to the extent of the Owner Trustee's interest therein pursuant to the
terms of the Lease) and all insurance proceeds with respect to the Aircraft or
any part thereof from insurance required to be maintained by the Lessee under
Article 13 of the Lease, but excluding any insurance maintained by the Lessee
and not required under Article 13 of the Lease; and
(7) All proceeds of the foregoing.
Notwithstanding the foregoing provisions:
(a) (i) whether or not an Indenture Event of Default shall occur and
be continuing, the Owner Trustee and the Owner Participants shall at all times
retain the right, to the exclusion of the Indenture Trustee, (A) to Excepted
Payments and to commence an action at law to obtain such Excepted Payments and
(B) to adjust Basic Rent and the percentages relating to Stipulated Loss Value
and Termination Value and the EBO Price as provided in Section 3.04 of the
Lease and Section 15.01 of the Participation Agreement, (C) to exercise any
election or option to make any decision or determination, or to give or
receive any notice, consent, waiver or approval, or to take any other action
in respect of, but in each case only to the extent relating to, Excepted
Payments (except for, in respect of Basic Rent constituting an Excepted
Payment, the manner by which such amount is paid), (D) to retain the rights of
the "Lessor" with respect to solicitations of bids, and the election to retain
the Aircraft pursuant to Article 10 of the Lease, (E) to retain the right of
"Lessor" to determine the Fair Market Rental or Fair Market Value pursuant to
Article 4 of the Lease, (F) to retain all rights with respect to insurance
maintained for its own account which Section 13.05 of the Lease specifically
confers on the "Lessor" and (G) to exercise, to the extent necessary to enable
it to exercise its rights under Section 8.03 hereof, the rights of the "Lessor"
under Section 17.04 of the Lease;
(ii) whether or not an Indenture Event of Default shall occur and be
continuing, the Owner Trustee and the Indenture Trustee shall each have the
rights separately but not to the exclusion of the other (agreement of both
required in the case of clause (E) below), (A) to receive from the Lessee all
notices, certificates, reports, filings, opinions of counsel, copies of all
documents and all information which the Lessee is permitted or required to
give or furnish to the "Lessor" pursuant to the Lease or to the Owner Trustee
pursuant to any other Operative Agreement, (B) to exercise inspection rights
pursuant to Section 14.01 of the Lease (provided that if an Indenture Event of
Default shall be continuing, no inspection right of the Owner Trustee shall
interfere with the efforts of the Indenture Trustee to exercise remedies under
the Lease or this Indenture), (C) to maintain separate insurance pursuant to
Section 13.05 of the Lease and to retain all rights with respect to such
insurance maintained for its own account, (D) to give any notice of default
under Section 16.01 of the Lease, and (E) the right to consent to changes to
the list of countries on Schedule III to the Participation Agreement;
(iii) (A) so long as no Indenture Event of Default shall have
occurred and be continuing (but subject to the provisions of Section 8.01
hereof), the Owner Trustee shall retain the right, to the exclusion of the
Indenture Trustee, to approve as satisfactory any accountants, engineers,
appraisers or counsel to render services for or issue appraisals, reports,
certificates or opinions to the Owner Trustee and to exercise all rights,
elections and options of the Lessor in connection with the return, renewal or
purchase of the Aircraft and to exercise rights with respect to the use,
operation, maintenance and modification of the Aircraft, in each case pursuant
to express provisions of the Operative Agreements (other than in connection
with an Event of Default), and (B) so long as no Indenture Event of Default
not constituting an Event of Default shall have occurred and be continuing
(but subject to the provisions of Section 8.01 hereof), the Owner Trustee
shall retain the right, jointly with the Indenture Trustee (agreement of both
not being required), to further assurances and financial information from the
Lessee pursuant to Section 19.01 of the Lease (other than the right to receive
any funds to be delivered to the "Lessor" under the Lease (except funds
delivered with respect to Excepted Payments);
(iv) at all times the Owner Trustee shall have the right as Lessor,
but not to the exclusion of the Indenture Trustee, to seek specific
performance of the covenants of the Lessee under the Lease relating to the
protection, insurance, maintenance, possession and use of the Aircraft; and
(v) at all times the Owner Trustee and the Owner Participants shall
have the rights granted to them under Articles VI, VIII and X and Section 7.02
hereof.
(b) The leasehold interest granted to the Lessee by the Lease shall
not be subject to the security interest granted by this Indenture, and nothing
in this Indenture shall affect the rights of the Lessee under the Lease so
long as no Event of Default has occurred and is continuing.
HABENDUM CLAUSE
TO HAVE AND TO HOLD the aforesaid property unto the Indenture Trustee,
its successors and assigns, in trust for the equal and ratable benefit and
security of the Holders from time to time of the Certificates, without any
priority of any one Certificate over any other and for the uses and purposes
and subject to the terms and conditions set forth in this Indenture.
It is expressly agreed that anything contained in this Indenture to
the contrary notwithstanding, the Owner Trustee shall remain liable under the
Indenture Documents to perform all of the obligations assumed by it under any
of those documents, all in accordance with and pursuant to the terms and
provisions of those documents, and the Indenture Trustee and the Holders of
the Certificates shall have no obligation or liability under the Indenture
Documents by reason of or arising out of the assignment under this Indenture,
nor shall the Indenture Trustee or the Holders of the Certificates be required
or obligated in any manner to perform or fulfill any obligations of the Owner
Trustee under or pursuant to the Indenture Documents or, except as expressly
provided in this Indenture, to make any payment, or to make any inquiry as to
the nature or sufficiency of any payment received by it, or present or file
any claim, or take any action to collect or enforce the payment of any amounts
which may have been assigned to it or to which it may be entitled at any time
or times.
Effective upon the occurrence and continuance of an Indenture Event of
Default, the Owner Trustee hereby constitutes the Indenture Trustee the true
and lawful attorney of the Owner Trustee, irrevocably, with full power (in the
name of the Owner Trustee or otherwise), subject to the terms and conditions
of this Indenture, to ask, require, demand, receive, compound and give
acquittance for any and all Basic Rent, Supplemental Rent payable to the Owner
Trustee, Stipulated Loss Value and Termination Value payments, insurance
proceeds and any and all moneys and claims for moneys due and to become due
under or arising out of the Lease (subject to Section 8.01 hereof) or the
other Indenture Documents (other than Excepted Payments), to endorse any
checks or other instruments or orders in connection with the same and to file
any claims, take any action or institute any proceeding which the Indenture
Trustee may deem to be necessary or advisable in the premises.
Under the Lease the Lessee is directed to make all payments of Rent
(other than Excepted Payments not constituting Basic Rent) payable to the
Owner Trustee and all other amounts (other than Excepted Payments not
constituting Basic Rent) which are required to be paid to or deposited with
the Owner Trustee pursuant to the Lease directly to the Indenture Trustee at
such address in the United States of America as the Indenture Trustee shall
specify for application as provided in this Indenture. The Owner Trustee
agrees that if, notwithstanding such provision, it shall have received any
such amounts, promptly on receipt of any such payment, it will transfer to the
Indenture Trustee any and all moneys from time to time received by the Owner
Trustee constituting part of the Trust Indenture Estate for distribution by
the Indenture Trustee pursuant to this Indenture, except that the Owner
Trustee shall accept for distribution pursuant to the Trust Agreement (i) any
amounts distributed to it by the Indenture Trustee under this Indenture, and
(ii) any Excepted Payments not constituting Basic Rent.
The Owner Trustee agrees that at any time and from time to time, upon
the written request of the Indenture Trustee, the Owner Trustee will promptly
and duly execute and deliver or cause to be duly executed and delivered any
and all such further instruments and documents as the Indenture Trustee may
reasonably deem desirable in obtaining the full benefits of the assignment
hereunder and of the rights and powers herein granted; provided, however, that
the Owner Trustee shall have no obligation to execute and deliver or cause to
be executed or delivered to the Indenture Trustee any such instrument or
document if such execution and delivery would result in the imposition of
additional liabilities on the Owner Trustee or any Owner Participant or would
result in a burden on such Owner Participant's business activities, unless the
Owner Trustee or such Owner Participant, as the case may be, is indemnified to
its reasonable satisfaction against any losses, liabilities and expenses
incurred in connection with such execution and delivery.
The Owner Trustee does hereby warrant and represent that it has not
assigned, pledged or otherwise disposed of, and hereby covenants that it will
not assign or pledge or otherwise dispose of, so long as the assignment
hereunder shall remain in effect and shall not have been terminated pursuant
to Section 14.01 hereof, any of its right, title or interest hereby assigned,
to anyone other than the Indenture Trustee, and that it will not, except in
respect of Excepted Payments or otherwise as provided in or permitted by this
Indenture, accept any payment from the Lessee or any sublessee (other than
Excepted Payments not constituting Basic Rent), enter into an agreement
amending or supplementing any of the Operative Agreements, execute any waiver
or modification of, or consent under the terms of any of the Operative
Agreements, settle or compromise any claim (other than claims in respect of
Excepted Payments) against the Lessee arising under any of the Operative
Agreements, or submit or consent to the submission of any dispute, difference
or other matter arising under or in respect of any of the Operative
Agreements, to arbitration thereunder.
Concurrently with the delivery of this Indenture, the Owner Trustee
has delivered to the Indenture Trustee executed counterparts of the Trust
Agreement and the chattel paper original counterpart of the Lease.
It is hereby further covenanted and agreed by and between the parties
as follows:
ARTICLE I
DEFINITIONS
Section 1.01. Definitions. Unless the context otherwise requires,
capitalized terms utilized herein shall have the meanings set forth in
Schedule II hereto for all purposes of this Indenture and shall be equally
applicable to both the singular and plural forms of the terms defined.
ARTICLE II
ISSUE, EXECUTION, FORM AND
REGISTRATION OF CERTIFICATES
Section 2.01. Authentication and Delivery of Certificates.
Forthwith upon the execution and delivery of this Indenture, and from time to
time thereafter, Certificates in an aggregate principal amount not in excess
of the amount specified in Section 2.04 hereof (except as otherwise provided
in Sections 2.06 and 2.07 hereof) shall be executed by the Owner Trustee and
delivered to the Indenture Trustee for authentication, and the Indenture
Trustee shall thereupon authenticate and deliver said Certificates to or upon
the oral or written order of the Owner Trustee, signed, if written, by an
authorized officer of the Owner Trustee, without any further action by the
Owner Trustee.
Section 2.02. Execution of Certificates. The Certificates shall be
signed on behalf of the Owner Trustee by an authorized officer of WTC. Such
signatures may be the manual or facsimile signatures of such officer and minor
errors or defects in any reproduction of any such signature shall not affect
the validity or enforceability of any Certificate which has been duly
authenticated and delivered by the Indenture Trustee.
In case any officer of WTC who shall have signed any of the
Certificates shall cease to be such officer before the Certificate so signed
shall be authenticated and delivered by the Indenture Trustee or disposed of
by WTC, such Certificate nevertheless may be authenticated and delivered or
disposed of as though the person who signed such Certificate had not ceased to
be such officer of WTC; and any Certificate may be signed on behalf of the
Owner Trustee by such person or persons as, at the actual date of the
execution of such Certificate, shall be the proper officers of WTC, although
at the date of the execution and delivery of this Indenture any such person
was not such an officer. Certificates bearing the facsimile signatures of
individuals who were authorized officers of WTC at the time such Certificates
were issued shall bind the Owner Trustee, notwithstanding that such
individuals or any of them have ceased to hold such offices prior to the
authentication and delivery of such Certificates or did not hold such offices
at the respective dates of such Certificates.
Section 2.03. Certificate of Authentication. Only such Certificates
as shall bear thereon a certificate of authentication substantially in the
form set forth in Exhibit B, executed by the Indenture Trustee by manual
signature of one of its authorized officers, shall be entitled to the security
and benefits of this Indenture or be valid or obligatory for any purpose.
Such certificate by the Indenture Trustee upon any Certificate executed by the
Owner Trustee shall be conclusive evidence that the Certificate so
authenticated has been duly authenticated and delivered hereunder and that the
Holder, as evidenced on the Register, is entitled to the security and benefits
of this Indenture.
Section 2.04. Form and Terms of Certificates; Payments of Principal,
Make-Whole Premium and Interest. The Certificates and the Indenture Trustee's
certificate of authentication shall be substantially in the form set forth in
Exhibit B hereto. Certificates may differ with respect to Maturity and as to
other terms. The Certificates shall be issuable as registered securities
without coupons and shall be numbered, lettered, or otherwise distinguished in
such manner or in accordance with such plans as the Owner Trustee executing
the same may determine with the approval of the Indenture Trustee.
The aggregate principal amount of Certificates that may be
authenticated and delivered under this Indenture is limited as provided in the
form of Certificate attached as Exhibit B hereto. The Certificates shall be
issued in registered form only and in denominations of $1,000 and any integral
multiple thereof, shall be dated the Refunding Date, shall be issued in three
separate series consisting of Series A, Series B and Series C and shall be
issued in the Maturities and principal amounts, and shall bear interest at the
rates per annum, specified in the form of Certificate set forth in Exhibit B.
Any of the Certificates may be issued with appropriate insertions,
omissions, substitutions and variations, and may have imprinted or otherwise
reproduced thereon such legend or legends, not inconsistent with the
provisions of this Indenture, as may be required to comply with any law or
with any rules or regulations pursuant thereto, or with the rules of any
securities market in which the Certificates are admitted to trading, or to
conform to general usage.
Each Certificate shall bear interest from the date of original
issuance thereof or from the most recent date to which interest has been paid
and duly provided for, as the case may be, which shall be payable on the dates
specified on the face of the form of Certificate set forth in Exhibit B hereto
until the principal thereof is paid. Interest shall be calculated on the
basis of a 360-day year of twelve 30-day months.
Notwithstanding the preceding paragraph, each Certificate shall bear
interest at the Past Due Rate on any principal, interest and any other amount
payable hereunder or under such Certificate, which shall not be paid in full
when due (whether at stated maturity, by acceleration, by mandatory prepayment
or otherwise), for the period from and including the due date thereof to but
excluding the date the same is paid in full, payable from time to time on
demand of the Indenture Trustee.
The principal of, and Make-Whole Premium, if any, and interest on, the
Certificates shall be payable at the Corporate Trust Department of the
Indenture Trustee or at any office or agency maintained for such purpose
pursuant to Section 3.02 hereof in immediately available funds prior to 10:30
A.M. (New York time) on the due date thereof and the Indenture Trustee shall
remit all such amounts received by it to the Holders at such account or
accounts at such financial institution or institutions as the Holders shall
have designated to the Indenture Trustee in writing, in immediately available
funds, such payment to be made if the payment was received prior to 10:30 A.M.
New York time by the Indenture Trustee on any Business Day, by 12:00 noon New
York time on such Business Day; otherwise, the Indenture Trustee shall make
payment promptly, but not later than 11:00 A.M. New York time on the next
succeeding Business Day; provided, however, that interest may be payable at the
option of the Indenture Trustee or its Paying Agent, as defined in Section
3.04, by mailing checks for such interest payable to or upon the written order
of the Holders entitled thereto as they shall appear on the Register. If any
amount payable under the Certificates, or under this Indenture, falls due on a
day that is not a Business Day, then such sum shall be payable on the next
succeeding Business Day, without (provided that payment is made on such next
succeeding Business Day) additional interest thereon for the period of such
extension.
The Holder at the close of business on any Record Date with respect
to any Payment Date shall be entitled to receive the interest if any payable
on such Payment Date notwithstanding any transfer or exchange of such
Certificate subsequent to the Record Date and prior to such Payment Date,
except if and to the extent the Owner Trustee shall default in the payment of
the interest due on such Payment Date, in which case such defaulted interest
shall be paid to the Holder at the close of business on a subsequent Record
Date (which shall be not less than five (5) or more than fifteen (15) Business
Days prior to the date of payment of such defaulted interest) established by
notice given by mail by or on behalf of the Owner Trustee to the Holders not
less than fifteen (15) days preceding such subsequent Record Date.
The Owner Trustee agrees to pay to the Indenture Trustee for
distribution in accordance with Section 5.04 hereof (a) any and all indemnity
amounts received by the Owner Trustee which are payable by the Lessee to (i)
the Indenture Trustee in its individual capacity, (ii) the Subordination Agent
or (iii) each Liquidity Provider, in each case pursuant to Article 8 or 9 of
the Participation Agreement (it being acknowledged that the Lessee has been
instructed to pay such amounts to the Person or Persons entitled thereto) and
(b) the Owner Trustee's pro rata share of all amounts owed to each Liquidity
Provider by the Subordination Agent under each Liquidity Facility other than
amounts due as (i) repayments of the principal of advances thereunder, and (ii)
interest on Interest Drawings and Final Drawings except to the extent included
in Net Interest and Related Charges. As used in this Section, the Owner
Trustee's pro rata share means as of any time:
(A) with respect to all amounts other than Net Interest and
Related Charges, a fraction the numerator of which is the aggregate
principal balance then outstanding of the Certificates issued under
this Indenture (other than the Series C Certificates) and the
denominator of which is the aggregate principal balance of all
Certificates issued under this Indenture and the Related Indentures
(other than the Series C Certificates), plus
(B) with respect to all Net Interest and Related Charges (x)
if there exists a Payment Default under any Certificate issued under
this Indenture a fraction, the numerator of which is the aggregate
principal balance then outstanding of Certificates issued under this
Indenture (other than the Series C Certificates) and the denominator
of which is the aggregate principal balance then outstanding of all
Certificates issued under this Indenture and the Related Indentures
(other than the Series C Certificates) under which there exists a
Payment Default or (y) at all other times, zero.
As used in this Section, "Net Interest and Related Charges" means the sum of
(i) the amount, if any, by which interest payable to each Liquidity Provider
on any Interest Drawing and/or Final Drawing exceeds the amount which would be
payable if such drawings bore interest at the weighted average Past Due Rate
applicable to amounts in default on all Certificates plus (ii) any amounts
payable under Section 3.01, Section 3.02, Section 3.03, Section 3.09 or
Section 7.07 of each Liquidity Facility (or similar provisions of any
replacement Liquidity Facility) which result from any Interest Drawing or
Final Drawing. As used in this Section, a Payment Default when used in
connection with a Certificate issued hereunder or a Certificate issued under
any Related Indenture means a default in the payment of principal thereof or
interest thereon (which default has not been cured), other than solely because
of acceleration. As used in this Section, "Related Indentures" means,
collectively, the Trust Indenture and Security Agreement for each of Federal
Express Corporation Trust Nos. N670FE, N671FE, N672FE, N673FE, N674FE, N583FE
and N584FE, each dated as of May 1, 1997, between State Street Bank and Trust
Company of Connecticut, National Association, as owner trustee and the
Indenture Trustee, and the Trust Indenture and Security Agreement for Federal
Express Corporation Trust No. N581FE, dated as of May 1, 1997, between the
Owner Trustee and the Indenture Trustee.
Section 2.05. Payments from Trust Indenture Estate Only. All
payments to be made by the Owner Trustee under this Indenture shall be made
only from the income and the proceeds from the Lessor's Estate to the extent
included in the Trust Indenture Estate and from any other amounts of the type
described in Section 5.01 hereof to the extent actually received by the
Indenture Trustee and only to the extent that the Owner Trustee shall have
sufficient income or proceeds from the Lessor's Estate to the extent included
in the Trust Indenture Estate (and such other amounts) to enable the Indenture
Trustee to make distributions of the amounts due in respect of the
Certificates in accordance with the terms hereof and thereof. Each Holder by
its acceptance of a Certificate agrees that it will look solely to the income
and proceeds from the Trust Indenture Estate (and such other amounts of the
type described in Section 5.01 hereof to the extent actually received by the
Indenture Trustee) to the extent available for distribution to it as provided
herein and that neither the Owner Participants, the Owner Trustee, WTC nor the
Indenture Trustee is personally liable to such Holder for any amounts payable
under this Indenture or such Certificate or for any amounts payable or
liability under any Certificate or this Indenture, except as expressly
provided herein in the case of WTC, the Owner Trustee or the Indenture
Trustee.
WTC is not personally liable to any Holder, the Lessee, any Owner
Participant or the Indenture Trustee for any amounts payable under this
Indenture or for any liability under this Indenture or the Certificates,
except as a result of WTC's gross negligence or willful misconduct, or as
otherwise expressly provided herein or in the Participation Agreement.
If (1) all or any part of the Lessor's Estate becomes the property of
a debtor subject to the reorganization provisions of the Bankruptcy Code, (2)
pursuant to such reorganization provisions any Owner Participant is required,
by reason of such Owner Participant being held to have recourse liability to
the debtor or the trustee of the debtor directly or indirectly, to make
payment on account of any amount payable as principal of or interest,
Make-Whole Premium or other amounts payable on the Certificates, and (3) the
Indenture Trustee actually receives any Recourse Amount which reflects any
payment by any Owner Participant on account of (2) above, then the Indenture
Trustee shall promptly refund to each Owner Participant such Recourse Amount.
Nothing contained in this paragraph shall prevent the Indenture Trustee from
enforcing any personal recourse obligation (and retaining the proceeds
thereof) of any Owner Participant under the Participation Agreement, or from
retaining any amount paid by any Owner Participant under Sections 5.01, 8.02
and 8.03 hereof.
Section 2.06. Registration, Transfer and Exchange. The Indenture
Trustee will keep, on behalf of the Owner Trustee, at each office or agency to
be maintained for the purpose as provided in Section 3.02 hereof a Register or
Registers on which, subject to such reasonable regulations as it may
prescribe, it will register, and will register the transfer of, Certificates
as provided in this Article. Such Register shall be in written form in the
English language or in any other form capable of being converted into such
form within a reasonable period of time.
Upon due presentation for registration of transfer of any Certificate
at any such office or agency, the Owner Trustee shall execute and the
Indenture Trustee shall authenticate and deliver in the name of the transferee
or transferees a new Certificate or Certificates of the same Series and
Maturity, principal amount and interest rate and in authorized denominations
for an equal aggregate principal amount; provided, that such Certificate being
transferred shall be cancelled in accordance with Section 2.08 hereof
simultaneously with the issuance of the new Certificate.
Any Certificate or Certificates may be exchanged for a Certificate or
Certificates of the same Series and Maturity and interest rate but in other
authorized denominations, in an equal aggregate principal amount.
Certificates to be exchanged shall be surrendered at any office or agency to
be maintained by the Indenture Trustee for the purpose as provided in Section
3.02 hereof, and the Owner Trustee shall execute and the Indenture Trustee
shall authenticate and deliver in exchange therefor the Certificate or
Certificates which the Holder making the exchange shall be entitled to
receive, bearing numbers not contemporaneously or previously outstanding.
All Certificates presented for registration of transfer, exchange,
prepayment or payment shall (if so required by the Owner Trustee or the
Indenture Trustee) be duly endorsed by, or be accompanied by a written
instrument or instruments of transfer in form satisfactory to the Owner
Trustee and the Indenture Trustee duly executed by the Holder or its attorney
duly authorized in writing and (except in the case of transfers pursuant to
Section 15.01 of the Participation Agreement) the Indenture Trustee may
require evidence satisfactory to it as to the compliance of any such transfer
with the Securities Act.
The Indenture Trustee may require payment from the Holder of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any exchange or registration of transfer of Certificates. No
service charge shall be levied for any such transaction.
The Indenture Trustee shall not be required to exchange or register a
transfer of any Certificates (a) for a period of fifteen (15) days immediately
preceding the first mailing of notice of prepayment of such Certificates or
(b) with respect to which notice of prepayment has been given pursuant to
Section 6.03 hereof and such notice has not been revoked.
All Certificates issued upon any transfer or exchange of Certificates
shall be valid obligations of the Owner Trustee, evidencing the same debt, and
entitled to the same security and benefits under this Indenture, as the
Certificates surrendered upon such transfer or exchange.
Section 2.07. Mutilated, Defaced, Destroyed, Lost and Stolen
Certificates. In case any temporary or definitive Certificate shall become
mutilated, defaced or be apparently destroyed, lost or stolen, the Owner
Trustee in its discretion may execute, and upon the oral or written request of
any officer of WTC, the Indenture Trustee shall authenticate and deliver, a
new Certificate of like Maturity, principal amount and interest rate as the
Certificate being replaced, bearing a number not contemporaneously or
previously outstanding, in exchange and substitution for the mutilated or
defaced Certificate, or in lieu of and substitution for the Certificate so
apparently destroyed, lost or stolen. In the case of any Certificate so
apparently destroyed, lost or stolen, the applicant for a substitute
Certificate shall furnish to the Owner Trustee and to the Indenture Trustee
such security or indemnity as may be required by them to indemnify and defend
and to hold each of them harmless and evidence to their satisfaction of the
apparent destruction, loss or theft of such Certificate and of the ownership
thereof.
Upon the issuance of any substitute Certificate, the Owner Trustee or
the Indenture Trustee may require payment from the Holder of a sum sufficient
to cover any tax or other governmental charge that may be imposed in relation
thereto and any other reasonable expenses incurred in connection therewith.
In case any Certificate which has matured or is about to mature, or has been
called for prepayment in full, shall become mutilated or defaced or be
apparently destroyed, lost or stolen, the Owner Trustee may, instead of
issuing a substitute Certificate, pay or authorize the payment of the same
(without surrender thereof except in the case of a mutilated or defaced
Certificate), if the applicant of any Certificate so apparently destroyed,
lost or stolen, for such payment shall furnish to the Owner Trustee and to the
Indenture Trustee such security or indemnity as any of them may require to
hold each of them harmless and the applicant shall also furnish to the Owner
Trustee and the Indenture Trustee evidence to their satisfaction of the
apparent destruction, loss or theft of such Certificate and of the ownership
thereof.
Every substitute Certificate issued pursuant to the provisions of
this Section by virtue of the fact that any Certificate is apparently
destroyed, lost or stolen shall constitute an original additional contractual
obligation of the Owner Trustee, whether or not the apparently destroyed, lost
or stolen Certificate shall be enforceable at any time by anyone and shall be
entitled to all the security and benefits of (but shall be subject to all the
limitations of rights set forth in) this Indenture equally and proportionately
with any and all other Certificates duly authenticated and delivered
hereunder. All Certificates shall be held and owned upon the express
condition that, to the extent permitted by law, the foregoing provisions are
exclusive with respect to the replacement or payment of mutilated, defaced, or
apparently destroyed, lost or stolen Certificates and shall preclude any and
all other rights or remedies notwithstanding any law or statute existing or
hereafter enacted to the contrary with respect to the replacement or payment
of negotiable instruments or other securities without their surrender.
Section 2.08. Cancellation of Certificates; Destruction Thereof. All
Certificates surrendered for payment, prepayment, registration of transfer or
exchange, if surrendered to the Owner Trustee or any agent of the Owner
Trustee or the Indenture Trustee, shall be delivered to the Indenture Trustee
for cancellation or, if surrendered to the Indenture Trustee, shall be
cancelled by it; and no Certificates shall be issued in lieu thereof except as
expressly permitted by any of the provisions of this Indenture. The Indenture
Trustee shall destroy cancelled Certificates held by it and deliver a
certificate of destruction to the Owner Trustee. If the Owner Trustee shall
acquire any of the Certificates, such acquisition shall not operate as a
prepayment or satisfaction of the indebtedness represented by such
Certificates unless and until the same are delivered to the Indenture Trustee
for cancellation.
Section 2.09. Temporary Certificates. Pending the preparation of
definitive Certificates, the Owner Trustee may execute and, upon the oral or
written request of an officer of WTC, the Indenture Trustee shall authenticate
and deliver temporary Certificates (printed, lithographed, typewritten or
otherwise reproduced, in each case in form satisfactory to the Indenture
Trustee). Temporary Certificates shall be issuable as registered Certificates
without coupons, of any authorized denomination, and substantially in the form
of the definitive Certificates but with such omissions, insertions and
variations as may be appropriate for temporary Certificates, all as may be
determined by the Owner Trustee with the concurrence of the Indenture Trustee.
Temporary Certificates may contain such reference to any provisions of this
Indenture as may be appropriate. Every temporary Certificate shall be
executed by the Owner Trustee and, upon the oral or written request of an
authorized officer of the Owner Trustee, be authenticated by the Indenture
Trustee upon the same conditions and in substantially the same manner, and
with like effect, as the definitive Certificates. Without unreasonable delay
the Owner Trustee shall execute and shall furnish definitive Certificates and
thereupon temporary Certificates shall be surrendered in exchange therefor
without charge at any office or agency to be maintained by the Indenture
Trustee for the purpose pursuant to Section 3.02 hereof, and, upon the oral
or written request of an authorized officer of the Owner Trustee, the
Indenture Trustee shall authenticate and deliver in exchange for such
temporary Certificates an equal aggregate principal amount of definitive
Certificates of the same Series and Maturities and interest rates and in
authorized denominations. Until so exchanged, temporary Certificates shall be
entitled to the same security and benefits under this Indenture as definitive
Certificates.
Section 2.10. Termination of Interest in Trust Indenture Estate. A
Holder shall not, as such, have any further interest in, or other right with
respect to, the Trust Indenture Estate when and if the principal amount of and
Make-Whole Premium, if any, and interest on and other amounts due under all
Certificates held by such Holder and all other sums payable to such Holder
hereunder and under the other Operative Agreements shall have been paid in
full.
Section 2.11. Certificates in Respect of Replacement Aircraft. Upon
the execution and delivery of an Indenture and Security Agreement Supplement
covering a Replacement Airframe and/or Replacement Engine, as provided in
Section 9.09 hereof, each Certificate shall be deemed to have been issued in
connection with such Replacement Airframe and/or Replacement Engine and each
Certificate issued thereafter upon a transfer or exchange of, or as a
replacement for, a Certificate, shall be designated as having been issued in
connection with such Replacement Airframe and/or Replacement Engine, but
without any other change therein except as provided for in this Article II.
Section 2.12. Assumption of Obligations Under Certificates and Other
Operative Agreements. If, in accordance with and subject to the satisfaction
of the conditions set forth in Section 7.11 of the Participation Agreement,
the Lessee shall assume all of the obligations of the Owner Trustee hereunder,
under the Certificates and all other Operative Agreements, the Owner
Participants and the Owner Trustee shall be released and discharged from any
further obligations hereunder and under the Certificates and all other
Operative Agreements (except any obligations that have accrued prior to
such assumption).
Section 2.13. Subordination. (a) The Owner Trustee and, by
acceptance of its Certificates of any Series, each Holder of such Series,
hereby agree that no payment or distribution shall be made on or in respect of
the Secured Obligations owed to such Certificate Holder of such Series,
including any payment or distribution of cash, property or securities after
the commencement of a proceeding of the type referred to in clause (v), (vi)
or (vii) of Section 7.01 hereof, except as expressly provided in Article V
hereof.
(b) By the acceptance of its Certificates of any Series
(other than Series A), each Holder of such Series agrees that in the event
that such Holder, in its capacity as a Holder, shall receive any payment or
distribution on any Secured Obligations in respect of such Series which it is
not entitled to received under this Section 2.13 or Article V hereof, it will
hold any amount so received in trust for the Senior Holder (as defined in
Section 2.13(c) hereof) and will forthwith turn over such payment to the
Indenture Trustee in the form received to be applied as provided in Article V
hereof.
(c) As used in this Section 2.13, the term "Senior Holder"
shall mean, (i) the Holders of Series A Certificates until the Secured
Obligations in respect of Series A Certificates have been paid in full, (ii)
after the Secured Obligations in respect of Series A Certificates have been
paid in full, the Holders of Series B Certificates until the Secured
Obligations in respect of Series B Certificates have been paid in full and
(iii) after the Secured Obligations in respect of Series B Certificates have
been paid in full, the Holders of Series C Certificates until the Secured
Obligations in respect of Series C Certificates have been paid in full.
ARTICLE III
COVENANTS
Section 3.01. Payment of Principal, Make-Whole Premium and Interest.
The Owner Trustee covenants and agrees that it will, subject to Section 2.05
hereof, duly and punctually pay or cause to be paid the principal of, and
interest and Make-Whole Premium, if any, and all other amounts due on, each of
the Certificates and under this Indenture at the place or places, at the
respective times and in the manner provided in this Indenture and in the
Certificates.
Principal and interest and other amounts due hereunder or under the
Certificates shall be payable in dollars on the due date thereof, to the
Indenture Trustee at the Corporate Trust Department (or such other account at
such other financial institution as the Indenture Trustee may designate for
the purpose). If any amount payable under the Certificates or under this
Indenture falls due on a day which is not a Business Day, then such sum shall
be payable on the next succeeding Business Day, without (provided that payment
is made on such next succeeding Business Day) additional interest thereon for
the period of such extension.
Section 3.02. Offices for Payments, etc. So long as any of the
Certificates remain outstanding, the Indenture Trustee will maintain the
following: (a) an office or agency where the Certificates may be presented
for payment and (b) a facility or agency in New York, New York where the
Certificates may be presented for registration of transfer and for exchange
and for prepayment as provided in this Indenture (the "Registrar"). The
Registrar shall keep a register (the "Register") with respect to the
Certificates and their transfer and exchange. The Indenture Trustee may
appoint one or more co-registrars ("Co-Registrars") for the Certificates and
may terminate any such appointment at any time upon written notice. The term
"Registrar" includes any Co-Registrar.
The Indenture Trustee shall initially act as Registrar.
Section 3.03. Appointment to Fill a Vacancy in Office of Indenture
Trustee. The Owner Trustee, whenever necessary to avoid or fill a vacancy in
the office of Indenture Trustee, will, with the consent of the Lessee,
appoint, in the manner provided in Section 12.02 hereof, an Indenture Trustee,
so that there shall at all times be an Indenture Trustee hereunder.
Section 3.04. Paying Agents. Whenever the Indenture Trustee in its
sole discretion shall appoint a paying agent (the "Paying Agent"), it will
cause the Paying Agent to execute and deliver an instrument in which the
Paying Agent shall agree with the Indenture Trustee, subject to the provisions
of this Section:
(a) that it will hold all sums received by it as such agent for the
payment of the principal of, and interest and Make-Whole Premium, if any,
on the Certificates (whether such sums have been paid to it by the
Indenture Trustee or the Owner Trustee) in trust for the benefit of the
Holders or of the Indenture Trustee, and
(b) that it will give the Indenture Trustee notice of any failure by
the Owner Trustee to make any payment of the principal of or interest or
Make-Whole Premium, if any, on the Certificates when the same shall be due
and payable.
Anything in this Section to the contrary notwithstanding, the
agreements to hold sums in trust as provided in this Section are subject to
the provisions of Sections 14.03 and 14.04 hereof.
Section 3.05. Covenants of WTC and the Owner Trustee.
(a) WTC hereby covenants and agrees to perform its covenants set
forth in Sections 7.04(b) and 7.04(c) of the Participation Agreement.
(b) The Owner Trustee hereby covenants and agrees as follows:
(i) in the event a Responsible Officer of the Owner Trustee shall have
actual knowledge of an Indenture Event of Default, an Indenture Default or
an Event of Loss, the Owner Trustee will give prompt written notice of such
Indenture Event of Default, Indenture Default or Event of Loss to the
Indenture Trustee, the Lessee and the Owner Participants;
(ii) the Owner Trustee will furnish to the Indenture Trustee,
promptly upon receipt thereof, duplicates or copies of all reports,
notices, requests, demands, certificates, financial statements and other
instruments furnished to the Owner Trustee under the Lease, including,
without limitation, a copy of each report or notice received pursuant to
Article 11 of the Lease, to the extent that the same shall not have been
furnished to the Indenture Trustee;
(iii) the Owner Trustee will not enter into any business or other
activity other than the business of owning the Aircraft, the leasing
thereof to the Lessee and the carrying out of the transactions contemplated
hereby and by the Lease, the Participation Agreement, the Trust Agreement
and the other Indenture Documents; and
(iv) except as contemplated by the Operative Agreements, the Owner
Trustee will not contract for, create, incur or assume any debt, and will
not guarantee (directly or indirectly or by an instrument having the effect
of assuring another's payment or performance on any obligation or
capability of so doing, or otherwise), endorse or otherwise take action to
become contingently liable, directly or indirectly, in connection with the
debt of any other Person.
Section 3.06. [Reserved]
Section 3.07. Disposal of Trust Indenture Estate. At any time and
from time to time any part of the Trust Indenture Estate may be sold or
disposed of in accordance with the provisions of this Indenture and the Lease.
The Indenture Trustee shall, from time to time, release any part of the Trust
Indenture Estate so sold or disposed of or as to which an Event of Loss has
occurred or as to which the Lease has been terminated from the Lien of this
Indenture. In addition, to the extent that such property constitutes an
Airframe or Engine, the further requirements of Section 9.08 hereof shall be
complied with.
Section 3.08. No Representations or Warranties as to Aircraft or
Documents. NEITHER THE INDENTURE TRUSTEE NOR THE OWNER TRUSTEE NOR WTC NOR
THE OWNER PARTICIPANTS MAKES OR SHALL BE DEEMED TO HAVE MADE ANY
REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, AS TO THE TITLE,
AIRWORTHINESS, WORKMANSHIP, VALUE, CONDITION, DESIGN, COMPLIANCE WITH
SPECIFICATIONS, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR USE OR PURPOSE
OF THE AIRCRAFT OR ANY ENGINE, AS TO THE ABSENCE OF ANY INFRINGEMENT OF ANY
PATENT, TRADEMARK OR COPYRIGHT, AS TO THE ABSENCE OF OBLIGATIONS BASED ON
STRICT LIABILITY IN TORT OR ANY OTHER REPRESENTATION OR WARRANTY WITH RESPECT
TO THE AIRCRAFT OR ANY ENGINE WHATSOEVER, except that WTC warrants that on the
Delivery Date (a) the Owner Trustee shall have received whatever title was
conveyed to it by the Lessee, and (b) the Aircraft shall be free and clear of
Lessor's Liens attributable to WTC. Neither WTC, the Indenture Trustee nor
the Owner Participants makes or shall be deemed to have made any
representation or warranty as to the validity, legality or enforceability of
this Indenture, the Trust Agreement, the Certificates or any Indenture
Document or as to the correctness of any statement contained in any thereof,
except for the representations and warranties of WTC, the Indenture Trustee
and the Owner Participants made under this Indenture or in the Participation
Agreement.
Section 3.09. Further Assurances; Financing Statements. At any time
and from time to time, upon the request of the Indenture Trustee or the
Lessee, the Owner Trustee shall promptly and duly execute and deliver any and
all such further instruments and documents as may be specified in such request
and as are necessary or advisable to perfect, preserve or protect the Liens
and assignments created or intended to be created hereby, or to obtain for the
Indenture Trustee the full benefit of the specific rights and powers granted
herein, including, without limitation, the execution and delivery of Uniform
Commercial Code financing statements and continuation statements with respect
thereto, or similar instruments relating to the perfection of the Liens or
assignments created or intended to be created hereby.
ARTICLE IV
HOLDER LISTS
Section 4.01. Holder Lists; Ownership of Certificates. (a) The
Indenture Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
the Holders. If the Indenture Trustee is not the Registrar, the Registrar
shall furnish to the Indenture Trustee semi-annually not more than ten (10)
days after each Record Date, as of such Record Date, or at such other times as
the Indenture Trustee may request in writing, a list, in such form and as of
such date as the Indenture Trustee may reasonably require, containing all the
information in the possession or control of the Registrar as to the names and
addresses of the Holders and the amounts and Maturities of the Certificates
held by such Holders.
(b) Ownership of the Certificates shall be proved by the Register
kept by the Registrar.
ARTICLE V
RECEIPT, DISTRIBUTION AND APPLICATION OF
INCOME FROM THE TRUST INDENTURE ESTATE
Section 5.01. Basic Rent Distribution. Except as otherwise provided
in Section 5.03 hereof, each installment of Basic Rent, any payment of
interest on overdue installments of Basic Rent and any payment received by the
Indenture Trustee pursuant to Section 8.03(a) hereof shall be promptly
distributed in the following order of priority:
first, (i) so much of such installment or payment as shall be
required to pay in full the aggregate amount of the payment or
payments of Principal Amount and interest and other amounts (as
well as any interest on any overdue Principal Amount and, to the
extent permitted by applicable law, on any overdue interest and
any other overdue amounts) then due under all Series A
Certificates shall be distributed to the Holders of Series A
Certificates ratably, without priority of one over the other, in
the proportion that the amount of such payment or payments then
due under each Series A Certificate bears to the aggregate amount
of the payments then due under all Series A Certificates;
(ii) after giving effect to paragraph (i) above, so much of
such installment or payment as shall be required to pay in full
the aggregate amount of the payment or payments of Principal
Amount and interest and other amounts (as well as any interest on
any overdue Principal Amount and, to the extent permitted by
applicable law, on any overdue interest and any other overdue
amounts) then due under all Series B Certificates shall be
distributed to the Holders of Series B Certificates ratably,
without priority of one over the other, in the proportion that
the amount of such payment or payments then due under each
Series B Certificate bears to the aggregate amount of the
payments then due under all Series B Certificates; and
(iii) after giving effect to paragraph (ii) above, so much of
such installment or payment as shall be required to pay in full
the aggregate amount of the payment or payments of Principal
Amount and interest and other amounts (as well as any interest on
any overdue Principal Amount and, to the extent permitted by
applicable law, on any overdue interest and any other overdue
amounts) then due under all Series C Certificates shall be
distributed to the Holders of Series C Certificates ratably,
without priority of one over the other, in the proportion that the
amount of such payment or payments then due under each Series C
Certificate bears to the aggregate amount of the payments then due
under all Series C Certificates; and
second, the balance if any of such installment or payment remaining
thereafter shall be distributed to the Owner Trustee, or as the
Owner Trustee may request, for distribution pursuant to the Trust
Agreement.
Section 5.02. Event of Loss and Replacement; Prepayment. (a)
Except as otherwise provided in Section 5.03 hereof, any payment received by
the Indenture Trustee as the result of an Event of Loss with respect to the
Aircraft (including pursuant to Section 11.03(e) of the Lease, but, in the
case of said Section 11.03(e), subject to the time limits specified therein)
or as the result of, or in connection with any event under the Lease giving
rise to, a prepayment pursuant to Section 6.02 hereof, shall be promptly
distributed by the Indenture Trustee in the following order of priority:
first, to reimburse the Indenture Trustee for any costs or expenses
reasonably incurred in connection with such prepayment,
second, (i) to pay the amounts specified in paragraph (i) of clause
"second" of Section 5.03 hereof then due and payable in respect
of the Series A Certificates;
(ii) after giving effect to paragraph (i) above, to pay the
amounts specified in paragraph (ii) of clause "second" of Section
5.03 hereof then due and payable in respect of the Series B
Certificates; and
(iii) after giving effect to paragraph (ii) above, to pay the
amounts specified in paragraph (iii) of clause "second" of
Section 5.03 hereof then due and payable in respect of the Series
C Certificates; and
provided that payments pursuant to this clause "second" shall be
made without the payment of Make-Whole Premium except in the
particular circumstances provided in Section 6.02(b) hereof; and
third, as provided in clause "third" of Section 5.03 hereof;
provided that if a Replacement Airframe shall be substituted for an Airframe
subject to an Event of Loss as provided in Section 11.03 of the Lease and
Section 9.08 hereof, any proceeds which result from such Event of Loss and are
paid to the Indenture Trustee shall be held by the Indenture Trustee as part
of the Trust Indenture Estate and, unless otherwise applied pursuant to
Section 5.01 or 5.03 hereof, such proceeds shall be released to the Lessee
upon the release of such damaged Airframe and the replacement thereof as
herein provided.
(b) Any amounts received directly or indirectly from any governmental
authority, insurer or other party pursuant to any provision of Article 11 or
13 of the Lease as the result of loss or damage not constituting an Event of
Loss (x) with respect to the Aircraft, or as a result of such loss or damage
constituting an Event of Loss if and to the extent that such amounts would at
the time be required to be paid to the Lessee pursuant to said Article 11 or
13 but for the fact that an Event of Default shall have occurred and be
continuing or (y) are pledged to the Lessor as security in connection with an
Event of Loss in accordance with Section 11.03(e) of the Lease, shall be held
by the Indenture Trustee as security for the obligations of the Lessee under
the Lease and the Participation Agreement and shall be invested in accordance
with the terms of Section 5.08 hereof and at such time as the conditions for
payment to the Lessee specified in said Article 11 or 13, as the case may be,
shall be fulfilled and there shall not be continuing any Event of Default,
such amount, and the proceeds of any investment thereof, shall, to the extent
not theretofore applied, be paid to the Lessee to the extent provided in the
Lease.
Section 5.03. Payment After Indenture Event of Default, etc. Except
as otherwise provided in Sections 5.02(b), 5.04(b), 5.04(c) and 5.05 hereof,
all payments (other than Excepted Payments) received and all amounts held or
realized by the Indenture Trustee (a) after an Indenture Event of Default
shall have occurred and so long as such an Indenture Event of Default shall be
continuing, and after the Indenture Trustee has received a request to
accelerate the Certificates in accordance with Section 7.10 hereof, or (b)
after the Certificates shall have become due and payable as provided in
Section 7.02(b) or (c) hereof, shall be promptly distributed by the Indenture
Trustee in the following order of priority:
first, so much of such payments or amounts as shall be required to
reimburse the Indenture Trustee for any tax, expense, charge or
other loss (including, without limitation, all amounts to be
expended at the expense of, or charged upon the tolls, rents,
revenues, issues, products and profits of, the property included
in the Trust Indenture Estate pursuant to Section 7.03(b) hereof)
incurred by the Indenture Trustee (to the extent not previously
reimbursed) (including, without limitation, the expenses of any
sale, taking or other proceeding, attorneys' fees and expenses,
court costs, and any other expenditures incurred or expenditures
or advances made by the Indenture Trustee or the Holders in the
protection, exercise or enforcement of any right, power or remedy
or any damages sustained by the Indenture Trustee or the Holders,
liquidated or otherwise, upon such Indenture Event of Default)
shall be applied by the Indenture Trustee as between itself and
the Holders in reimbursement of such expenses;
second, (i) so much of such payments or amounts remaining as shall be
required to pay in full the aggregate unpaid Principal Amount of
all Series A Certificates, and the accrued but unpaid interest
and other amounts due thereon and all other Secured Obligations
(other than Make-Whole Premium) in respect of the Series A
Certificates to the date of distribution, shall be distributed to
the Holders of Series A Certificates, and in case the aggregate
amount so to be distributed shall be insufficient to pay in full
as aforesaid, then ratably, without priority of one over the
other, in the proportion that the aggregate unpaid Principal
Amount of all Series A Certificates held by each holder plus the
accrued but unpaid interest and other amounts due hereunder or
thereunder (other than Make-Whole Premium) to the date of
distribution, bears to the aggregate unpaid Principal Amount of
all Series A Certificates held by all such holders plus the
accrued but unpaid interest and other amounts due thereon (other
than Make-Whole Premium) to the date of distribution;
(ii) after giving effect to paragraph (i) above, so much of
such payments or amounts remaining as shall be required to pay in
full the aggregate unpaid Principal Amount of all Series B
Certificates, and the accrued but unpaid interest and other
amounts due thereon and all other Secured Obligations (other than
Make-Whole Premium) in respect of the Series B Certificates to
the date of distribution, shall be distributed to the Holders of
Series B Certificates, and in case the aggregate amount so to be
distributed shall be insufficient to pay in full as aforesaid,
then ratably, without priority of one over the other, in the
proportion that the aggregate unpaid Principal Amount of all
Series B Certificates held by each holder plus the accrued but
unpaid interest and other amounts due hereunder or thereunder
(other than Make-Whole Premium) to the date of distribution,
bears to the aggregate unpaid Principal Amount of all Series B
Certificates held by all such holders plus the accrued but unpaid
interest and other amounts due thereon (other than Make-Whole
Premium) to the date of distribution; and
(iii) after giving effect to paragraph (ii) above, so much of
such payments or amounts remaining as shall be required to pay in
full the aggregate unpaid Principal Amount of all Series C
Certificates, and the accrued but unpaid interest and other
amounts due thereon and all other Secured Obligations (other than
Make-Whole Premium) in respect of the Series C Certificates to
the date of distribution, shall be distributed to the Holders of
Series C Certificates, and in case the aggregate amount so to be
distributed shall be insufficient to pay in full as aforesaid,
then ratably, without priority of one over the other, in the
proportion that the aggregate unpaid Principal Amount of all
Series C Certificates held by each holder plus the accrued but
unpaid interest and other amounts due hereunder or thereunder
(other than Make-Whole Premium) to the date of distribution,
bears to the aggregate unpaid Principal Amount of all Series C
Certificates held by all such holders plus the accrued but unpaid
interest and other amounts due thereon (other than Make-Whole
Premium) to the date of distribution;
(it being understood that amounts payable under this clause
"second" shall not include Make-Whole Premium); and
third, the balance, if any of such payments or amounts remaining
thereafter shall be distributed to the Owner Trustee for
distribution pursuant to the Trust Agreement.
Section 5.04. Certain Payments. (a) Except as otherwise provided
in this Indenture, any payments received by the Indenture Trustee which are to
be applied according to any provision in any other Indenture Document shall be
applied thereunder in accordance therewith.
(b) The Indenture Trustee will distribute, promptly upon receipt, any
indemnity or other payment received by it from the Owner Trustee or the Lessee
in respect of (i) the Indenture Trustee in its individual capacity, (ii) the
Subordination Agent, (iii) each Liquidity Provider, and (iv) the Pass Through
Trustee, in each case whether pursuant to Article 8 or 9 of the Participation
Agreement or as Supplemental Rent, directly to the Person (which may include
the Indenture Trustee) entitled thereto. Any payment received by the
Indenture Trustee under clause (b) of the last paragraph of Section 2.04 shall
be distributed to the Subordination Agent to be distributed in accordance with
the terms of the Intercreditor Agreement.
(c) Notwithstanding anything to the contrary contained herein, any
sums received by the Indenture Trustee which constitute Excepted Payments
shall be distributed promptly upon receipt by the Indenture Trustee directly
to the Person or Persons entitled thereto.
Section 5.05. Other Payments. Any payments received by the Indenture
Trustee for which no provision as to the application thereof is made elsewhere
in this Indenture or in any other Indenture Document (including without
limitation Article 9 of the Lease) shall be distributed by the Indenture
Trustee (a) to the extent received or realized at any time prior to the
payment in full of all obligations to the Holders, in the order of priority
specified in Section 5.01 hereof, and (b) to the extent received or realized
at any time after payment in full of all obligations to the Holders, in the
following order of priority: first, in the manner provided in clause "first"
of Section 5.03 hereof and second, in the manner provided in clause "third" of
Section 5.03 hereof.
Section 5.06. Payments to Owner Trustee. Any amounts distributed
hereunder by the Indenture Trustee to the Owner Trustee shall be paid to the
Owner Trustee by wire transfer of immediately available funds of the type
received by the Indenture Trustee at such office and to such account or
accounts of such entity or entities as shall be designated by notice from the
Owner Trustee to the Indenture Trustee from time to time. The Owner Trustee
hereby notifies the Indenture Trustee that unless and until the Indenture
Trustee receives notice to the contrary from the Owner Trustee, all amounts to
be distributed to the Owner Trustee hereunder for distribution in accordance
with the Trust Agreement shall be distributed by wire transfer of immediately
available funds of the type received by the Indenture Trustee to such account
of each Owner Participant as may be specified pursuant to Section 2.06 of the
Trust Agreement.
Section 5.07. Application of Payments. Each payment of principal of
and interest or other amounts due on each Certificate shall, except as
otherwise provided herein, be applied, first, to the payment of interest on
such Certificate due and payable to the date of such payment, as provided in
such Certificate, as well as any interest on overdue principal and Make-Whole
Premium, if any, and, to the extent permitted by law, interest and other
amounts due thereunder, second, to the payment of any other amount (other than
the principal of such Certificate) due hereunder to the Holder of such
Certificate or under such Certificate, third, to the payment of the principal
of such Certificate if then due hereunder or under such Certificate and
fourth, the balance, if any remaining thereafter, to the payment of the
principal of such Certificate remaining unpaid (provided that such Certificate
shall not be subject to prepayment without the consent of the affected Holder
except as permitted by Sections 6.02, 6.06 and 8.02 hereof); provided that,
solely for the purpose of determining whether an Indenture Event of Default
shall have occurred and be continuing, each such payment shall be deemed
applied in the following order of priority: first, in the manner provided in
clause "first" above, second, in the manner provided in clause "third" above,
third, in the manner provided in clause "second" above and fourth, in the
manner provided in clause "fourth" above.
Section 5.08. Investment of Amounts Held by Indenture Trustee.
Amounts held by the Indenture Trustee pursuant to Section 5.02(b) hereof or
pursuant to any provision of any Indenture Document providing for investment
by the Indenture Trustee of sums pursuant to Section 23.01 of the Lease or
this Section 5.08 shall be invested by the Indenture Trustee from time to time
in securities selected by (i) so long as no Event of Default shall have
occurred and be continuing, the Lessee (and in the absence of written
direction by the Lessee, the Indenture Trustee shall invest such monies in
direct obligations of the United States of America) or (ii) so long as an
Event of Default shall have occurred and be continuing, the Indenture Trustee
and in each case shall be of the type listed in clauses (i) through (iv) of
Section 23.01 of the Lease. Unless otherwise expressly provided in this
Indenture, any income realized as a result of any such investment, net of the
Indenture Trustee's reasonable fees and expenses in making such investment,
shall be held and applied by the Indenture Trustee in the same manner as the
principal amount of such investment is to be applied and any losses, net of
earnings and such reasonable fees and expenses, shall be charged against the
principal amount invested. The Lessee shall be responsible for and will
promptly pay to the Indenture Trustee or the Lessor, as the case may be, on
demand, the amount of any loss realized as the result of any such investment
(together with any fees, commissions and other costs and expenses, if any,
incurred by the Indenture Trustee or the Lessor in connection with such
investment), such amount to be disposed of in accordance with the terms hereof
or the Lease, as the case may be. The Indenture Trustee shall not be liable
for any loss resulting from any investment made by it or any investment sold
by it under this Indenture in accordance with instructions from the Lessee
other than by reason of its willful misconduct or gross negligence, and any
such investment may be sold (without regard to its maturity) by the Indenture
Trustee without instructions whenever the Indenture Trustee reasonably
believes such sale is necessary to make a distribution required by this
Indenture.
Unless otherwise confirmed in writing, an account statement delivered
by the Indenture Trustee to the Owner Trustee (with a copy to the Lessee)
shall be deemed written confirmation by the Owner Trustee that the investment
transactions identified therein accurately reflect the investment directions
given to the Indenture Trustee by or on behalf of the Lessee, unless the
Lessee notifies the Indenture Trustee in writing to the contrary within 30
days of the date of receipt of such statement.
Section 5.09. Withholding Taxes. The Indenture Trustee shall
withhold any Taxes required to be withheld, except to the extent that the
Holder has furnished evidence satisfactory to the Indenture Trustee of any
exemption from withholding claimed by such Holder and under no circumstances
shall the failure of any such Holder to receive any amounts so withheld
constitute an Indenture Event of Default. Notwithstanding any provision to
the contrary in Sections 5.01 through 5.05 hereof and subject to Article 8 of
the Participation Agreement, if the Lessee is required to pay any such Tax, or
any interest or penalty thereon, or to indemnify the Owner Participants or the
Owner Trustee with respect thereto pursuant to Section 8.01(c) of the
Participation Agreement, the Lessee shall be entitled to receive any payments
otherwise distributable to the Holder of any Certificate who was subject to
such Tax pursuant to Sections 5.01 to 5.05 hereof until the foregoing amounts
shall have been recovered in full by the Lessee.
ARTICLE VI
PREPAYMENT OF CERTIFICATES
Section 6.01. No Prepayment Prior to Maturity. Except as provided
in Sections 6.02, 6.06 and 8.02 hereof, the Certificates may not be prepaid
prior to their respective Maturities.
Section 6.02. Prepayment of Certificates. (a) The Outstanding
Certificates shall be prepaid in full (and not in part):
(i) If an Event of Loss occurs with respect to the Airframe or with
respect to the Airframe and the Engines or engines then installed on the
Airframe (unless pursuant to Section 11.03 of the Lease and Section 9.08
hereof replacement equipment is substituted therefor).
(ii) If the Lessee, pursuant to Section 4.02(a) of the Lease, gives
notice of purchase of the Aircraft (and Section 2.12 hereof shall not be
applicable in connection with such purchase).
(iii) If any Owner Participant or the Owner Trustee on behalf of any
Owner Participant gives notice of prepayment to the Indenture Trustee
pursuant to Section 8.02 hereof.
(iv) If the Lessee, pursuant to Section 10.01 of the Lease, gives
notice of a voluntary termination for obsolescence or surplus, but subject
to Section 6.02(c) below.
(v) Pursuant to Section 15.01 of the Participation Agreement in
connection with a refinancing of the Certificates.
(vi) At the option of the Owner Trustee with the prior written
consent of the Lessee upon not less than 25 days' prior written notice.
(b) In the event of a prepayment of the Certificates pursuant to
Sections 6.02(a)(ii), (iv) and (v) above, the Owner Trustee, having received
notice from the Lessee in accordance with and subject to the terms of Section
4.02(a) or 10.01 of the Lease or Article 15 of the Participation Agreement, as
the case may be, shall give irrevocable (subject to Section 6.02(c) hereof)
written notice to the Indenture Trustee and to the Holders of all of the
Certificates specifying the Business Day on which the Certificates shall be
prepaid. In the case of a prepayment of the Certificates pursuant to Section
6.02(a)(i) above, the Certificates shall be prepaid in full on the Loss
Payment Date as defined in Section 11.02 of the Lease. In the case of a
prepayment of the Certificates pursuant to Section 6.02(a)(iii) above, the
Certificates shall be prepaid in full on the date so designated in the notice
referred to in Section 8.02 hereof. In the case of a prepayment of the
Certificates pursuant to Section 6.02(a)(ii) or (iv) above, the Certificates
shall be prepaid in full on the Termination Date. In the case of a prepayment
of the Certificates pursuant to Section 6.02(a)(v) above, the Certificates
shall be prepaid on the effective date of the Refinancing. In the case of a
prepayment of the Certificates pursuant to Section 6.02(a)(vi) above, the
Certificates shall be prepaid on the date designated in the notice referred to
therein. The day on which the Certificates are to be prepaid pursuant to this
Section 6.01(b) is herein referred to as the "Prepayment Date".
On or prior to the Prepayment Date, immediately available funds shall
be deposited with the Indenture Trustee in an amount in respect of the
Certificates equal to:
(1) (i) if such prepayment is made under any provision of Section 6.02
hereof on or after the applicable Premium Termination Date, or (ii) if such
prepayment is made prior to the applicable Premium Termination Date
pursuant to Section 6.02(a)(i) or 6.02(a)(iii) above (if clause (i) of the
first sentence of Section 8.02(a) hereof is applicable), the sum of (A) the
aggregate principal amount of such Certificates then Outstanding, (B)
accrued interest on the Certificates to the Prepayment Date and (C) all
other aggregate sums due the Indenture Trustee hereunder or under the
Participation Agreement or the Lease, but excluding any Make-Whole Premium
or other premium or penalty, or
(2) if such prepayment is made prior to the applicable Premium
Termination Date pursuant to Section 6.02(a)(ii), 6.02(a)(iii) (if clause
(ii) of the first sentence of Section 8.02(a) hereof is applicable),
6.02(a)(iv), 6.02(a)(v) or 6.02(a)(vi) above, the sum of the amounts
specified in clauses (A), (B) and (C) of the preceding clause (1) plus any
Make-Whole Premium payable in respect of all Certificates with respect to
which the Premium Termination Date therefor has not occurred
(the aggregate amount required to be paid pursuant to this sentence being
herein referred to as the "Prepayment Price").
(c) If, pursuant to the last paragraph of Section 10.01(f) of the
Lease, no Termination Date shall occur, or if, pursuant to Section 4.02(a) of
the Lease, the Lessee revokes its notice of election to purchase, or if no
refinancing shall occur pursuant to Section 15.01 of the Participation
Agreement, the Lessee shall give notice thereof to the Indenture Trustee, and
the prepayment proposed to be effected in respect thereof shall not occur.
Section 6.03. Notice of Prepayment to Holders. In order to effect
any prepayment set forth in Section 6.02(a) hereof, the Indenture Trustee
shall give prompt notice by first class mail of prepayment to each Holder of
an Outstanding Certificate. Any notice of prepayment given by the Owner
Trustee may be revoked by the Owner Trustee at any time on or before the
Prepayment Date by prompt notice to the Holders except as otherwise provided
in the Lease or the Participation Agreement.
All notices of prepayment shall state:
(1) the Prepayment Date,
(2) the applicable basis for determining the Prepayment Price,
(3) that on the Prepayment Date, subject to the provisions hereof,
the Prepayment Price will become due and payable, and that interest
on the Certificates shall cease to accrue on and after such
Prepayment Date, and
(4) the place or places where such Certificates are to be
surrendered for payment.
Section 6.04. Deposit of Prepayment Price and Sinking Fund Redemption
Price. On the Prepayment Date or the Sinking Fund Redemption Date (as defined
in Section 6.06 hereof), the Owner Trustee shall, to the extent an amount
equal to the Prepayment Price or the Sinking Fund Redemption Price (as defined
in Section 6.06 hereof), as the case may be, shall not then be held in cash or
Permitted Investments (marked-to-market net of all costs and expenses of
liquidation thereof) by the Indenture Trustee in immediately available funds
and deposited for the purpose, pay to the Indenture Trustee an amount equal to
the difference between (a) the amount then so held and (b) the Prepayment
Price or the Sinking Fund Redemption Price, as the case may be. If there
shall so be on deposit and/or deposited the applicable Prepayment Price or
Sinking Fund Redemption Price on or prior to a Prepayment Date or Sinking Fund
Redemption Date, interest shall cease to accrue in respect of all or, in the
case of a mandatory sinking fund redemption, the relevant portion being
prepaid of, the Outstanding Certificates on and after such Prepayment Date or
such Sinking Fund Redemption Date.
Section 6.05. Certificates Payable on Prepayment Date. On the
Prepayment Date, the Outstanding Certificates shall (except (A) if the Owner
Trustee has requested the Indenture Trustee to revoke such notice of
prepayment in accordance with Section 6.03 hereof or (B) as otherwise provided
in the Lease) become due and payable and from and after such Prepayment Date
(unless there shall be a default in the payment of the Prepayment Price) such
Certificates shall cease to bear interest. Upon surrender by any Holder of
its Certificate for prepayment in accordance with said notice, such Holder
shall be paid the principal amount of its Certificate then outstanding, accrued
interest thereon to the Prepayment Date, all other sums due to such Holder
hereunder, under the Participation Agreement or the Lease, plus, if a
Make-Whole Premium is payable pursuant to Section 6.02(b) hereof, the
Make-Whole Premium in respect of such Certificate.
If any Certificate called for prepayment shall not be so paid upon
surrender thereof for prepayment, the principal shall, until paid, continue to
bear interest from the Prepayment Date at the interest rate applicable to such
Certificate.
Section 6.06. Mandatory Sinking Fund Redemption. The Certificates
shall be subject to partial redemption, at the aggregate principal amount set
forth for the Certificates of the respective Series and Maturity, on a pro
rata basis, on each date specified in this Section (a "Sinking Fund Redemption
Date") for such payment on the Certificates of such Series and Maturity. The
Owner Trustee shall deposit funds sufficient to pay the Sinking Fund
Redemption Price with the Indenture Trustee as provided in Section 6.04
hereof. The Indenture Trustee shall pay from the amounts so deposited on each
applicable Sinking Fund Redemption Date to the Certificates of each Series in
the order of priority set forth in clause "first" of Section 5.01 hereof and
among the Holders of the Certificates of each Series then Outstanding on a pro
rata basis the aggregate principal amount set forth below, together with
accrued interest to such Sinking Fund Redemption Date, but without Make-Whole
Premium (the "Sinking Fund Redemption Price"):
Series A Series B Series C
Certificates with Certificates with Certificates with
Sinking Fund a Maturity of a Maturity of a Maturity of
Redemption Date January 15, 2015 January 15, 2010 January 15, 2007
- ---------------- ----------------- ----------------- -----------------
January 15, 1998 724,290 786 0
July 15, 1998 468 0 0
January 15, 1999 750,760 281,534 544,208
July 15, 1999 0 0 0
January 15, 2000 750,760 281,534 599,356
July 15, 2000 0 0 0
January 15, 2001 750,760 281,534 728,258
July 15, 2001 0 0 0
January 15, 2002 750,760 281,534 861,394
July 15, 2002 0 0 0
January 15, 2003 750,760 281,534 1,005,202
July 15, 2003 0 0 0
January 15, 2004 750,760 281,534 1,160,006
July 15, 2004 0 0 0
January 15, 2005 0 0 1,967,524
July 15, 2005 750,762 281,540 0
January 15, 2006 750,760 281,536 3,279,410
July 15, 2006 0 0 0
January 15, 2007 750,760 1,684,506 300,642
July 15, 2007 0 0 0
January 15, 2008 750,760 2,533,230 0
July 15, 2008 0 0 0
January 15, 2009 750,760 4,135,478 0
July 15, 2009 0 0 0
January 15, 2010 2,078,026 3,189,720 0
July 15, 2010 0 0 0
January 15, 2011 5,678,550 0 0
July 15, 2011 0 0 0
January 15, 2012 6,121,034 0 0
July 15, 2012 0 0 0
January 15, 2013 6,597,998 0 0
July 15, 2013 0 0 0
January 15, 2014 7,112,128 0 0
July 15, 2014 0 0 0
January 15, 2015 941,144 0 0
ARTICLE VII
INDENTURE EVENTS OF DEFAULT; REMEDIES
OF INDENTURE TRUSTEE AND HOLDERS
Section 7.01. Indenture Event of Default. "Indenture Event of
Default" means any of the following events (whatever the reason for such
Indenture Event of Default and whether it shall be voluntary or involuntary or
come about or be effected by operation of law or pursuant to or in compliance
with any judgment, decree or order of any court or any order, rule or
regulation of any administrative or governmental body):
(i) any Event of Default specified in Article 16 of the Lease (other
than an Event of Default arising solely as the result of the failure to
make an Excepted Payment unless the Owner Participants shall notify the
Indenture Trustee in writing that such failure shall constitute an
Indenture Event of Default); or
(ii) the failure of the Owner Trustee other than by reason of a
Default or an Event of Default (i) to pay principal, interest or Make-Whole
Premium, if any, on any Certificate when due, and such failure shall have
continued unremedied for ten (10) Business Days after the date when due or
(ii) to pay any other amounts hereunder or under the Certificates when due
and such failure shall have continued unremedied for a period of thirty
(30) days after the Owner Trustee and the Owner Participants shall receive
written demand therefor from the Indenture Trustee or by the Holders of not
less than 25% in aggregate principal amount of Outstanding Certificates; or
(iii) (A) any representation or warranty made by WTC, the Owner
Trustee, any Owner Participant or the Owner Participant Guarantor or any
Owner Trustee Guarantor, in any Operative Agreement or in any certificate of
WTC, the Owner Trustee, any Owner Participant, or the Owner Participant
Guarantor furnished to the Indenture Trustee or any Holder in connection
herewith or therewith or pursuant hereto or thereto shall prove to have been
incorrect when made and was and remains in any respect material to the
Holders and if such misrepresentation is capable of being corrected as of a
subsequent date and if such correction is being sought diligently, and such
misrepresentation shall not have been corrected within 30 days following
notice thereof identified as a "Notice of Indenture Event of Default" being
given to the Owner Trustee and the Owner Participants by the Indenture
Trustee or by a Majority in Interest of Holders; or
(B) any (x) covenant made by the Owner Trustee in the fifth paragraph
following the Habendum Clause hereof or Section 3.05(b)(iii) hereof or
Section 7.02(b) (unless otherwise removed as Owner Trustee within 10 days
after notice thereof to the Owner Participants) or 7.04(b) (unless such
Lien is removed within the 30-day period set forth therein) of the
Participation Agreement shall be breached in any respect or (y) other
covenant made by the Owner Trustee, in its individual capacity or as Owner
Trustee, or by any Owner Trustee Guarantor, or by any Owner Participant or
the Owner Participant Guarantor in any Operative Agreement shall be
breached in any respect and such breach shall remain unremedied for a
period of thirty (30) days after there has been given to the Owner Trustee
and any Owner Participant by the Indenture Trustee or by Certificate
Holders of not less than 25% in aggregate principal amount of Outstanding
Certificates a written notice identified as a "Notice of Indenture Event of
Default" specifying such breach and requiring it to be remedied; or
(iv) the Owner Trustee, the Lessor's Estate, any Owner Trustee
Guarantor, any Owner Participant or the Owner Participant Guarantor shall
file any petition or answer seeking for itself any reorganization,
arrangement, composition, readjustment, liquidation, dissolution or similar
relief under any present or future bankruptcy, insolvency or similar
statute, law or regulation;
(v) an order for relief shall be entered in respect of the Owner
Trustee or any Owner Trustee Guarantor or any Owner Participant or the Owner
Participant Guarantor or the Lessor's Estate by a court having jurisdiction
in the premises in an involuntary case under the federal bankruptcy laws as
now or hereafter in effect; or the Owner Trustee or any Owner Trustee
Guarantor or any Owner Participant or the Owner Participant Guarantor or
the Lessor's Estate shall file any answer admitting or not contesting the
material allegations of a petition filed against the Owner Trustee or any
Owner Trustee Guarantor or any Owner Participant or the Owner Participant
Guarantor or the Lessor's Estate in any proceeding referred to in clause
(vi) below or seek or consent or acquiesce in the appointment of any
trustee, custodian, receiver or liquidator of the Owner Trustee or any
Owner Trustee Guarantor or any Owner Participant or the Owner Participant
Guarantor or the Lessor's Estate, as the case may be, or of all or any
substantial part of its properties; or
(vi) without the consent or acquiescence of the Owner Trustee or any
Owner Trustee Guarantor or any Owner Participant or the Owner Participant
Guarantor or the Lessor's Estate, as the case may be, an order shall be
entered constituting an order for relief or approving a petition for relief
or reorganization or any other petition seeking any reorganization,
arrangement, composition, readjustment, liquidation, dissolution or other
similar relief under any present or future bankruptcy, insolvency or
similar statute, law or regulation, or if any such petition shall be filed
against the Owner Trustee or any Owner Trustee Guarantor or any Owner
Participant or the Owner Participant Guarantor or the Lessor's Estate, as
the case may be, and such petition shall not be dismissed within 60 days,
or if, without the consent or acquiescence of the Owner Trustee or any
Owner Trustee Guarantor or any Owner Participant or the Owner Participant
Guarantor or the Lessor's Estate, as the case may be, an order shall be
entered appointing a trustee, custodian, receiver or liquidator of the
Owner Trustee or any Owner Trustee Guarantor or any Owner Participant or
the Owner Participant Guarantor or the Lessor's Estate, as the case may be,
or of all or any substantial part of the properties of the Owner Trustee or
any Owner Trustee Guarantor or any Owner Participant or the Owner
Participant Guarantor or the Lessor's Estate, as the case may be, and such
order shall not be dismissed within 60 days; or
(vii) any Owner Trustee Guaranty or the Owner Participant Guaranty
shall cease to be a valid and enforceable obligation of any Owner Trustee
Guarantor or the Owner Participant Guarantor, as the case may be, or
otherwise shall not be in full force and effect.
Section 7.02. Remedies. (a) If an Indenture Event of Default shall
have occurred and be continuing and so long as the same shall be continuing
unremedied, then and in every such case, the Indenture Trustee may, and when
required by the provisions of Article IX or Section 7.02(c) hereof, shall (i)
exercise any or all of the rights and powers and pursue any and all of the
remedies pursuant to this Article VII and (ii) in the event such Indenture
Event of Default is an Indenture Event of Default referred to in clause (i) of
Section 7.01 hereof, exercise any and all of the remedies pursuant to Article
17 of the Lease; provided that without the consent of the Owner Trustee such
exercise of remedies shall not occur until after the latest date on which the
Owner Trustee may cure the related Event of Default pursuant to Section 8.03
hereof. The Indenture Trustee may take possession of all or any part of the
properties covered or intended to be covered by the Lien and security interest
created hereby or pursuant hereto and may exclude the Owner Participants, the
Owner Trustee, the Lessee and any transferee of the Lessee and all Persons
claiming under any of them wholly or partly therefrom. In addition, the
Indenture Trustee may exercise any other right or remedy in lieu of or in
addition to the foregoing that may be available to it under applicable law, or
proceed by appropriate court action to enforce the terms hereof, of the Lease,
or both, or to rescind the Lease. Without limiting any of the foregoing, it
is understood and agreed that the Indenture Trustee may exercise any right of
sale of the Aircraft available to it, even though it shall not have taken
possession of the Aircraft and shall not have possession thereof at the time
of such sale.
Notwithstanding the foregoing, it is understood and agreed that if
the Indenture Trustee shall proceed to foreclose the Lien of this Indenture,
it shall substantially simultaneously therewith, to the extent the Indenture
Trustee is then entitled to do so hereunder and under the Lease, and is not
then stayed or otherwise prevented from doing so, proceed (to the extent it
has not already done so) to declare the Lease in default and commence the
exercise in good faith of one or more of the significant remedies under
Article 17 of the Lease (as the Indenture Trustee determines in its sole
discretion). It is further understood and agreed that if the Indenture Trustee
is unable to exercise one or more remedies under Article 17 of the Lease
because of any stay or operation of law or otherwise, the Indenture Trustee
shall not be entitled to foreclose the Lien of this Indenture (A) until the
earlier of (i) 60 days from the date of any such stay or applicable order
under Section 1110 of the Bankruptcy Code including any extension consented to
by the Indenture Trustee or the Holders of Certificates of such period
permitted under Section 1110(b) of the Bankruptcy Code and (ii) the date of
actual repossession of the Aircraft by the Indenture Trustee or (B) if the
Lessee has agreed to perform or assume the Lease and no Event of Default other
than as specified in Section 16.01(e), (f) or (g) of the Lease shall be
continuing. For the avoidance of doubt, it is expressly understood and agreed
that except as aforesaid the above-described inability of the Indenture
Trustee to exercise any right or remedy under the Lease shall in no event and
under no circumstances prevent the Indenture Trustee from exercising all of
its rights, powers and remedies under this Indenture, including, without
limitation, this Article VII. The Indenture Trustee further agrees that
notice of intent to foreclose shall be given to the Owner Trustee at the
earlier of the commencement of any proceeding or at least 30 days prior to the
consummation of foreclosure of the Lien of this Indenture.
(b) If an Indenture Event of Default under clause (iv), (v) or (vi)
of Section 7.01 hereof shall occur and be continuing, the unpaid principal of
all Outstanding Certificates, together with interest accrued but unpaid
thereon and all other amounts due thereunder, but without Make-Whole Premium,
shall immediately become due and payable, without presentment, demand, protest
or notice, all of which are hereby waived.
(c) If any Indenture Event of Default not described in the preceding
paragraph (b) shall have occurred and be continuing, then and in every such
case, the Indenture Trustee may on its own accord or at the direction of
Holders of not less than 25% in aggregate principal amount of Outstanding
Certificates, at any time, by written notice to the Owner Trustee and the
Lessee, declare the principal of all the Certificates to be due and payable,
whereupon the unpaid principal amount of all Outstanding Certificates,
together with accrued interest thereon and all other amounts due thereunder,
but without Make-Whole Premium, shall immediately become due and payable
without presentment, demand, protest or other notice, all of which are hereby
waived. At any time after such declaration and prior to the sale or
disposition of the Trust Indenture Estate, however, the Holders of not less
than 50% in aggregate principal amount of Outstanding Certificates, by notice
to the Indenture Trustee, the Owner Trustee and the Lessee, may rescind such
declaration, whether made by the Indenture Trustee on its own accord or as
directed, if (x) there has been paid or deposited with the Indenture Trustee a
sum sufficient to pay all overdue installments of interest on all Certificates
(together, to the extent permitted by law, with interest on such overdue
installments of interest), the principal on any Certificates that has become
due otherwise than by such declaration of acceleration, all sums paid or
advanced by the Indenture Trustee hereunder and the reasonable compensation,
expenses, disbursements and advances of the Indenture Trustee, its agents and
counsel, or (y) all Indenture Events of Default (other than the nonpayment of
principal that has become due solely because of such acceleration) have been
either cured or waived as provided in Section 7.11 hereof. No such rescission
shall affect any subsequent default or impair any right consequent thereon.
(d) Each Holder shall be entitled at any sale to credit against any
purchase price bid at such sale by such Holder all or any part of the unpaid
obligations owing to such Holder secured by the Lien of this Indenture (but
only to the extent that an amount equal to such purchase price would have been
paid to such Holder pursuant to Article V hereof if such purchase price were
paid in cash and the foregoing provisions of this subsection (d) were not
given effect).
Section 7.03. Return of Aircraft, etc. Subject to Section 7.02
hereof: (a) If an Indenture Event of Default shall have occurred and be
continuing, at the request of the Indenture Trustee, the Owner Trustee shall
promptly execute and deliver to the Indenture Trustee such documents as the
Indenture Trustee may deem necessary or advisable to enable the Indenture
Trustee or an agent or representative designated by the Indenture Trustee, at
such time or times and place or places as the Indenture Trustee may specify,
to obtain possession of all or any part of the Trust Indenture Estate to which
the Indenture Trustee shall at the time be entitled under this Indenture.
Subject to the foregoing, if the Owner Trustee shall for any reason fail to
execute and deliver such documents after such request by the Indenture
Trustee, the Indenture Trustee may (i) obtain a judgment conferring on the
Indenture Trustee or an agent or representative designated by the Indenture
Trustee, the right to immediate possession and requiring the Owner Trustee to
execute and deliver such instruments and documents to the Indenture Trustee or
an agent or representative designated by the Indenture Trustee, to the entry
of which judgment the Owner Trustee hereby specifically consents, and (ii)
pursue all or part of such Trust Indenture Estate wherever it may be found and
enter any of the premises of the Lessee or the Owner Trustee wherever such
Trust Indenture Estate may be or be supposed to be and search for such Trust
Indenture Estate and take possession of and remove such Trust Indenture
Estate. All expenses of obtaining such judgment or of pursuing, searching for
and taking such Trust Indenture Estate shall, until paid, be secured by the
Lien of this Indenture.
(b) Upon every such taking of possession, the Indenture Trustee may,
from time to time, at the expense of the Trust Indenture Estate, make all such
expenditures for maintenance, insurance and repairs to and of such Trust
Indenture Estate, as the Indenture Trustee may reasonably deem proper. In
each case subject to Section 7.02 hereof, the Indenture Trustee shall have the
right to maintain, use, operate, store, lease, control or manage the Trust
Indenture Estate and to carry on the business and to exercise all rights and
powers of the Owner Trustee relating to the Trust Indenture Estate, as the
Indenture Trustee may reasonably deem best, including the right to enter into
any and all such agreements with respect to the maintenance, insurance, use,
operation, storage, leasing, control, management or disposition of all or any
part of the Trust Indenture Estate as the Indenture Trustee may determine.
Further, the Indenture Trustee shall be entitled to collect and receive
directly all tolls, rents (including Rent), revenues, issues, income, products
and profits of the Trust Indenture Estate other than Excepted Payments,
without prejudice, however, to the right of the Indenture Trustee under any
provision of this Indenture to collect and receive all cash held by, or
required to be deposited with, the Indenture Trustee under this Indenture.
Such tolls, rents (including Rent), revenues, issues, income, products and
profits shall be applied to pay the expenses of the use, operation, storage,
leasing, control, management, or disposition of the Trust Indenture Estate,
and of all maintenance and repairs, and to make all payments which the
Indenture Trustee may be required or may reasonably elect to make for any
taxes, assessments, insurance or other proper charges upon the Trust Indenture
Estate (including the employment of engineers and accountants to examine,
inspect and make reports upon the properties and books and records of the
Owner Trustee and the Lessee), and all other payments which the Indenture
Trustee may be required or authorized to make under any provision of this
Indenture, as well as just and reasonable compensation for the services of the
Indenture Trustee and of all persons properly engaged and employed for such
purposes by the Indenture Trustee; provided, that any excess amounts shall be
promptly distributed in accordance with Section 5.03 hereof.
(c) If an Indenture Event of Default shall have occurred and be
continuing and the Indenture Trustee shall be entitled to exercise remedies
hereunder, and subject to Article VIII hereof, the Indenture Trustee, either
with or without taking possession, and either before or after taking
possession, and without instituting any legal proceedings whatsoever, may
sell, assign, transfer and deliver the whole or, from time to time, to the
extent permitted by law, any part of the Trust Indenture Estate, or any part
thereof, or interest therein, at any private sale or public auction to the
highest bidder, with or without demand, advertisement or notice, except that
in respect of any private sale 20 days prior notice will be provided, for cash
or, with the consent of the Owner Trustee, which shall not be unreasonably
withheld, credit or for other property, for immediate or future delivery, and
for such price or prices and on such terms as the Indenture Trustee in
exercising reasonable commercial discretion may determine; provided, that any
such action shall be at the time lawful and that all mandatory legal
requirements shall be complied with. Any notice required pursuant to the
terms hereof in the case of a public sale, shall state the time and place
fixed for such sale. Any such public sale shall be held at such time or times
within ordinary business hours as the Indenture Trustee shall fix in the
notice of such sale. At any such sale, the Trust Indenture Estate may be sold
in one lot as an entirety or in separate lots. The Indenture Trustee shall
not be obligated to make any sale pursuant to such notice. The Indenture
Trustee may, without notice or publication, adjourn any public or private sale
or cause the same to be adjourned from time to time by announcement at the time
and place fixed for such sale, and any such sale may be made at any time or
place to which the same may be so adjourned without further notice or
publication. The Indenture Trustee may exercise such right of sale without
possession or production of the Certificates or proof of ownership thereof,
and as representative of the Holders may exercise such right without notice to
the Holders or without including the Holders as parties to any suit or
proceedings relating to the foreclosure of any part of the Trust Indenture
Estate. The Owner Trustee shall execute any and all such bills of sale,
assignments and other documents, and perform and do all other acts and things
requested by the Indenture Trustee in order to permit consummation of any sale
of the Trust Indenture Estate in accordance with this Section 7.03(c) and to
effectuate the transfer or conveyance referred to in the first sentence of
this Section 7.03(c). Notwithstanding any other provision of this Indenture,
the Indenture Trustee shall not sell the Trust Indenture Estate or any part
thereof unless the Certificates shall have been accelerated.
(d) To the extent permitted by applicable law, the Indenture Trustee
or any Holder may be a purchaser of the Trust Indenture Estate or any part
thereof or any interest therein at any sale thereof, whether pursuant to
foreclosure or power of sale or otherwise. The Indenture Trustee may apply
against the purchase price therefor the amount then due hereunder or under any
of the Certificates secured hereby and any Holder may apply against the
purchase price therefor the amount then due to it hereunder, under any other
Indenture Document or under the Certificates held by such Holder to the extent
of such portion of the purchase price as it would have received had it been
entitled to share any distribution thereof. The Indenture Trustee or any
Holder or nominee thereof shall, upon any such purchase, acquire good title to
the property so purchased, free of the Lien of this Indenture and, to the
extent permitted by applicable law, free of all rights of redemption in the
Owner Trustee or the Owner Participants in respect of the property so
purchased.
(e) Subject to Article VIII hereof, and effective upon the
occurrence and continuance of an Indenture Event of Default, the Owner Trustee
hereby irrevocably appoints and constitutes the Indenture Trustee the true and
lawful attorney-in-fact of the Owner Trustee in its name and stead and on its
behalf, for the purpose of effectuating any sale, assignment, transfer or
delivery for the enforcement of the Lien of this Indenture, whether pursuant
to foreclosure or power of sale or otherwise, to execute and deliver all such
bills of sale, assignments and other instruments as the Indenture Trustee may
consider necessary or appropriate, with full power of substitution, and the
Owner Trustee hereby ratifies and confirms all that such attorney or any
substitute shall lawfully do by virtue hereof. Nevertheless, if so requested
by the Indenture Trustee or any purchaser, the Owner Trustee shall ratify and
confirm any such sale, assignment, transfer or delivery, by executing and
delivering to the Indenture Trustee or such purchaser all bills of sale,
assignments, releases and other proper instruments to effect such ratification
and confirmation as may be designated in any such request.
(f) The Indenture Trustee shall, as a matter of right, be entitled to
the appointment of a receiver (who may be the Indenture Trustee or any
successor or nominee) for all or any part of the Trust Indenture Estate,
whether such receivership be incidental to a proposed sale of the Trust
Indenture Estate or the taking of possession thereof or otherwise, and the
Owner Trustee hereby consents to the appointment of such receiver and will not
oppose any such appointment. Any receiver appointed for all or any part of
the Trust Indenture Estate shall be entitled to exercise all of the rights and
powers of the Indenture Trustee with respect to the Trust Indenture Estate.
(g) Any sale of the Trust Indenture Estate or any part thereof or
any interest therein, whether pursuant to foreclosure or power of sale or
otherwise hereunder, shall be a perpetual bar against the Owner Trustee after
the expiration of the period, if any, during which the Owner Trustee shall
have the benefit of prepayment laws which may not be waived pursuant to
Section 7.13 hereof.
Section 7.04. Indenture Trustee May Prove Debt. If the Owner
Trustee shall fail to pay any amount payable hereunder or under the
Certificates, the Indenture Trustee, in its own name and as trustee of an
express trust, shall be entitled and empowered to institute any action or
proceedings at law or in equity for the collection of the sums so due and
unpaid, and may prosecute any such action or proceedings to judgment or final
decree, and may enforce any such judgment or final decree against the Owner
Trustee and collect in the manner provided by law out of the property of the
Owner Trustee wherever situated, the moneys adjudged or decreed to be payable;
provided, that any sale of any portion of the Trust Indenture Estate shall be
done in accordance with Section 7.03(c) hereof.
In case there shall be pending proceedings relative to the Owner
Trustee under the Bankruptcy Code or any other applicable Federal or state
bankruptcy, insolvency or other similar law, or in case a receiver, assignee
or trustee in bankruptcy or reorganization, liquidator, sequestrator or
similar official shall have been appointed for or taken possession of the
Owner Trustee or its property, or in case of any other comparable judicial
proceedings relative to the Owner Trustee, or to the creditors or property of
the Owner Trustee, the Indenture Trustee, irrespective of whether the
principal of the Certificates shall then be due and payable as therein or
herein expressed or by declaration or otherwise and irrespective of whether
the Indenture Trustee shall have made any demand pursuant to the provisions of
this Section, shall be entitled and empowered, by intervention in such
proceedings or otherwise:
(a) to file and prove a claim or claims for the whole amount of
principal, interest and other amounts owing and unpaid in respect of the
Certificates or hereunder, and to file such other papers or documents as
may be necessary or advisable in order to have the claims of the Indenture
Trustee (including any claim for reasonable compensation to the Indenture
Trustee and each predecessor Indenture Trustee, and their respective
agents, attorneys and counsel, and for reimbursement of the Indenture
Trustee and each predecessor Indenture Trustee, except as a result of
negligence or bad faith) and of the Holders allowed in any judicial
proceedings relative to the Owner Trustee or to the creditors or property of
the Owner Trustee,
(b) unless prohibited by applicable law and regulations, to vote on
behalf of the Holders in any election of a trustee or a standby trustee in
arrangement, reorganization, liquidation or other bankruptcy or insolvency
proceedings or person performing similar functions in comparable
proceedings, and
(c) to collect and receive any moneys or other property payable or
deliverable on any such claims, and to distribute all amounts received with
respect to the claims of the Holders and of the Indenture Trustee on their
behalf;
and any trustee, receiver, or liquidator, custodian or other similar official
is hereby authorized by each of the Holders to make payments to the Indenture
Trustee, and, in the event that the Indenture Trustee shall consent to the
making of payments directly to the Holders, to pay to the Indenture Trustee
such amounts as shall be sufficient to cover reasonable compensation to the
Indenture Trustee, each predecessor Indenture Trustee and their respective
agents, attorneys and counsel, and all other expenses and liabilities
incurred, and all advances made, by the Indenture Trustee and each predecessor
Indenture Trustee except as a result of negligence or willful misconduct.
Nothing contained herein shall be deemed to authorize the Indenture
Trustee to authorize or consent to or vote for or accept or adopt on behalf of
any Holder any plan of reorganization, arrangement, adjustment or composition
affecting the Certificates or the rights of any Holder thereof, or to
authorize the Indenture Trustee to vote in respect of the claim of any Holder
in any such proceeding except, as aforesaid, to vote for the election of a
trustee in bankruptcy or similar person.
All rights of action and rights to assert claims under this
Indenture, or under any of the Certificates, may be enforced by the Indenture
Trustee without the possession of such Certificates on any trial or other
proceedings instituted by the Indenture Trustee shall be brought in its own
name as trustee of an express trust, and any recovery of judgment, subject to
the payment of the expenses, disbursements and compensation of the Indenture
Trustee, each predecessor Indenture Trustee and their respective agents and
attorneys, shall be for the ratable benefit of the Holders, as provided herein.
In any proceedings brought by the Indenture Trustee (and also any
proceedings involving the interpretation of any provision of this Indenture to
which the Indenture Trustee shall be a party) the Indenture Trustee shall be
held to represent all the Holders of the Certificates, and it shall not be
necessary to make any Holders parties to such proceedings.
Section 7.05. Remedies Cumulative. Each and every right, power and
remedy given to the Indenture Trustee in this Indenture shall be cumulative
and shall be in addition to every other right, power and remedy specifically
given herein or now or hereafter existing at law, in equity or by statute, and
each and every right, power and remedy whether specifically given herein or
otherwise existing may be exercised from time to time and as often and in such
order as may be deemed expedient by the Indenture Trustee or the Holders, and
the exercise or the beginning of the exercise of any power or remedy shall not
be construed to be a waiver of the right to exercise at the same time or later
any other right, power or remedy. No delay or omission by the Indenture
Trustee or of any Holder in the exercise of any right, remedy or power or in
the pursuance of any remedy shall impair any such right, power or remedy or be
construed to be a waiver of any default on the part of the Owner Trustee or
the Lessee or to be an acquiescence in any such default.
Section 7.06. Suits for Enforcement. If an Indenture Event of
Default has occurred, has not been waived and is continuing, the Indenture
Trustee may in its discretion and subject to its rights of appropriate
indemnification under Sections 7.08 and 9.03 and Article XI hereof proceed to
protect and enforce its rights and rights of the Holders by such appropriate
judicial proceedings as the Indenture Trustee shall deem most effectual to
protect and enforce any of such rights, either at law or in equity or in
bankruptcy or otherwise, whether for the specific enforcement of any covenant
or agreement contained in this Indenture or in aid of the exercise of any
power granted in this Indenture or to enforce any other legal or equitable
right vested in the Indenture Trustee or the Holders by this Indenture or by
law; provided, that any sale of any portion of the Trust Indenture Estate
shall be done in accordance with Section 7.03(c) hereof.
Section 7.07. Discontinuance of Proceedings. In case the Indenture
Trustee or any Holder shall have instituted any proceeding to enforce any
right, power or remedy under this Indenture by foreclosure, entry or
otherwise, and such proceeding shall have been discontinued or abandoned for
any reason or shall have been determined adversely to the Indenture Trustee or
such Holder, then the Owner Trustee, the Indenture Trustee, the Owner
Participants, the Holders and the Lessee shall, subject to any binding
determination in such proceeding, be restored to their former positions and
rights under this Indenture with respect to the Trust Indenture Estate, and
all rights, remedies and powers of the Indenture Trustee and the Holders shall
continue as if no such proceeding had been instituted.
Section 7.08. Limitations on Suits by Holders. No Holder of any
Certificate shall have any right by virtue or by availing of any provision of
this Indenture to institute any action or proceeding at law or in equity or in
bankruptcy or otherwise upon or under or with respect to this Indenture, or
for the appointment of a trustee, receiver, liquidator, custodian or other
similar official or for any other remedy hereunder, unless such Holder
previously shall have given to the Indenture Trustee written notice that an
Indenture Event of Default shall then have occurred and be continuing, as
hereinbefore provided, and the Holders of not less than 25% in aggregate
principal amount of Outstanding Certificates shall have made written request
upon the Indenture Trustee to institute such action or proceedings in its own
name as trustee hereunder and shall have offered to the Indenture Trustee such
reasonable indemnity as it may require against the costs, expenses and
liabilities to be incurred therein or thereby and the Indenture Trustee for 60
days after its receipt of such notice, request and offer of indemnity shall
have failed to institute any such action or proceedings and no direction
inconsistent with such written request shall have been given to the Indenture
Trustee pursuant to Section 7.10 hereof; it being understood and intended, and
being expressly covenanted by the Holder of each Certificate with every other
Holder of each other Certificate and the Indenture Trustee, that no one or
more Holders shall have any right in any manner whatever to affect, disturb or
prejudice the rights of any other Holder or the Lien of this Indenture or any
part of the Trust Indenture Estate or to obtain or seek to obtain priority
over or preference to any other such Holder or to enforce any right under this
Indenture, except in the manner provided herein and for the equal, ratable and
common benefit of all Holders. For the protection and enforcement of the
provisions of this Section, each and every Holder and the Indenture Trustee
shall be entitled to such relief as can be given either at law or in equity.
Section 7.09. Unconditional Right of Holders to Receive Principal,
Interest and Make-Whole Premium, and to Institute Certain Suits.
Notwithstanding any other provision in this Indenture and any provision of any
Certificate, the right of any Holder to receive payment of the principal of
and interest and Make-Whole Premium, if any, on such Certificate on or after
the respective due dates and in the manner expressed in such Certificate, or,
subject to Section 7.08 hereof, to institute suit for the enforcement of any
such payment on or after such respective dates as provided herein, shall not
be impaired or affected without the consent of such Holder.
Section 7.10. Control by Holders. The Majority in Interest of
Certificate Holders shall have the right to direct the Indenture Trustee as to
the time, method, and place of conducting any proceeding for any remedy
available to the Indenture Trustee, or exercising any trust or power conferred
on the Indenture Trustee by this Indenture; provided that such direction shall
not be otherwise than in accordance with law and the provisions of this
Indenture and the Indenture Trustee shall have received, to the extent
provided in Sections 7.08 and 9.03 and Article XI hereof, such reasonable
indemnification as it may require against the costs, expenses and liabilities
to be incurred by the Indenture Trustee; and provided further that (subject to
the provisions of Section 9.02 hereof) the Indenture Trustee shall have the
right to decline to follow any such direction if the Indenture Trustee, being
advised by counsel, shall determine that the action or proceeding so directed
may not lawfully be taken or if the Indenture Trustee in good faith by its
board of directors, the executive committee, or a trust committee of directors
or Responsible Officers of the Indenture Trustee shall determine that the
action or proceedings so directed would involve the Indenture Trustee in
personal liability or if the Indenture Trustee in good faith shall so
determine that the actions or forebearances specified in or pursuant to such
direction shall be unduly prejudicial to the interests of Holders not joining
in the giving of said direction, it being understood that (subject to Section
9.02 hereof) the Indenture Trustee shall have no duty to ascertain whether or
not such actions or forebearances are unduly prejudicial to such Holders.
Nothing in this Indenture shall impair the right of the Indenture
Trustee in its discretion to take any action deemed proper by the Indenture
Trustee and which is not inconsistent with the direction by the Majority in
Interest of Certificate Holders.
Section 7.11. Waiver of Past Indenture Default. Upon written
instructions from the Majority in Interest of Certificate Holders, the
Indenture Trustee shall waive any past Indenture Default and its consequences
and upon any such waiver such Indenture Default shall cease to exist and any
Indenture Event of Default arising therefrom shall be deemed to have been
cured for every purpose of this Indenture, but no such waiver shall extend to
any subsequent or other Indenture Default or impair any right consequent
thereon; provided, however, that in the absence of written instructions from
all Holders and each Liquidity Provider, the Indenture Trustee shall not waive
any Indenture Default (a) in the payment of the principal of or Make-Whole
Premium, if any, or interest on, or other amounts due under, any Certificate
then Outstanding, or (b) in respect of a covenant or provision of this
Indenture which, under Article XIII hereof, cannot be modified or amended
without the consent of each Holder.
Section 7.12. Notice of Indenture Default. The Indenture Trustee
shall transmit to the Owner Trustee, the Holders and to the Owner Participants
notice of any Indenture Defaults actually known to a Responsible Officer of
the Indenture Trustee, such notice to be transmitted by mail to the Holders
within 90 days, and to the Owner Trustee and the Owner Participants promptly
after the occurrence thereof, unless such Indenture Default shall have been
cured before the giving of such notice; provided that except in the case of a
default in the payment of the principal of or interest on any Certificate,
under no circumstances shall the Indenture Trustee give such notice to the
Holders until the expiration of a period of 60 days from the occurrence of
such Indenture Default; and provided further that, except in the case of
default in the payment of the principal of or interest on or any other amount
due under any of the Certificates, the Indenture Trustee shall be protected in
withholding such notice to the Holders if and so long as the board of
directors, the executive committee, or a trust committee of directors or
trustees and/or Responsible Officers of the Indenture Trustee in good faith
determines that the withholding of such notice is in the interests of the
Holders.
Section 7.13. Waiver of Appraisement, etc.; Laws. The Owner Trustee
covenants (to the extent that it may lawfully do so) that it will not at any
time insist upon, or plead, or in any manner whatsoever claim or take the
benefit or advantage of, any appraisement, valuation, stay, extension or
prepayment law wherever enacted, now or at any time hereafter in force, in
order to prevent or hinder the enforcement of this Indenture or the execution
of any power granted herein to the Indenture Trustee, or the absolute sale of
the Trust Indenture Estate, or any part thereof, or the possession thereof by
any purchaser at any sale under this Article VII; and the Owner Trustee for
itself and all who may claim under it, so far as it or any of them now or
hereafter lawfully may, hereby waives the benefit of all such laws. The Owner
Trustee for itself and all who may claim under it waives, to the extent that
it lawfully may, all right to have the property in the Trust Indenture Estate
marshalled upon any foreclosure hereof, and agrees that any court having
jurisdiction to foreclose this Indenture may order the sale of the Trust
Indenture Estate as an entirety.
If any law referred to in this Section 7.13 and now in force, of
which the Owner Trustee or its successors might take advantage despite this
Section 7.13, shall hereafter be repealed or cease to be in force, such law
shall not thereafter be deemed to constitute any part of the contract herein
contained or to preclude the application of this Section 7.13.
ARTICLE VIII
RIGHTS OF THE OWNER TRUSTEE
AND THE OWNER PARTICIPANTS
Section 8.01. Certain Rights of Owner Trustee and Owner
Participants. (a) Subject to Section 13.01 hereof, without the consent of a
Majority in Interest of Certificate Holders, the respective parties to the
Indenture Documents may not modify, amend or supplement any of said
agreements, or give any consent, waiver, authorization or approval thereunder,
for the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions thereof or of modifying in any manner the
rights of the respective parties thereunder; provided, however, that the
actions specified in subsection (b) of this Section 8.01 may be taken without
the consent of the Indenture Trustee or any Holder.
(b) Subject to the provisions of subsection (c) of this Section
8.01, the respective parties to the Indenture Documents, at any time and from
time to time, without the consent of the Indenture Trustee or of any Holder,
may:
(1) so long as no Indenture Event of Default shall have occurred and
be continuing, modify, amend or supplement the Lease, or give any waiver
with respect thereto, except that without compliance with subsection (a) of
this Section 8.01 the parties to the Lease shall not modify, amend or
supplement, or give any waiver for the purpose of adding any provisions to
or changing in any manner or eliminating any of the provisions thereof or
of modifying in any manner the rights of the respective parties thereunder,
with respect to the following provisions of the Lease as in effect on the
effective date hereof: Article 2 (provided that, if in respect of the
Term, the result thereof would not be to shorten the Term of the Lease to a
period shorter than the period ending with the Maturity of any
Certificate), Section 3.03 (except to the extent such Section relates to
amounts payable (whether directly or pursuant to this Indenture) to Persons
other than Holders, each Liquidity Provider, the Subordination Agent and
the Indenture Trustee in its individual capacity), Section 3.05, Section
3.06 (except insofar as it relates to the address or account information of
the Owner Trustee or the Indenture Trustee) (other than as such Sections
3.03, 3.05 and 3.06 may be amended pursuant to Section 3.04 of the Lease as
in effect on the effective date hereof), Section 5.01, Article 6, Article
10 (except that further restrictions may be imposed on the Lessee), Article
11 (except that additional requirements may be imposed on the Lessee),
Article 13 (except for Section 13.05 and except that additional insurance
requirements may be imposed on the Lessee), Article 14 (except in order to
increase the Lessee's liabilities or enhance the Lessor's rights
thereunder), Article 15 (except in the case of an assignment by the Lessor
in circumstances where the Aircraft shall remain registrable under the
Federal Aviation Act), Section 16.01 (except to impose additional or more
stringent Events of Default), Article 17 (except to impose additional
remedies), Section 19.01 (except to impose additional requirements on the
Lessee), Section 20.01, Article 22, Section 23.01, Section 26.03 and any
definition of terms used in the Lease, to the extent that any modification
of such definition would result in a modification of the Lease not
permitted pursuant to this subsection (b); provided that the parties to the
Lease may take any such action without the consent of the Indenture Trustee
or any Holder to the extent such action relates to the payment of amounts
constituting, or the Owner Trustee's, the Owner Participants' or the
Lessee's rights or obligations with respect to, Excepted Payments (other
than the place, time and manner of payment of Basic Rent constituting an
Excepted Payment);
(2) modify, amend or supplement the Trust Agreement and any other
Indenture Document (other than the Lease and the Participation Agreement),
or give any consent, waiver, authorization or approval with respect
thereto, in each case only to the extent any such action shall not
adversely impact the interests of the Holders;
(3) modify, amend or supplement the Participation Agreement, or give
any consent, waiver, authorization or approval with respect thereto, except
that without compliance with subsection (a) of this Section 8.01 the
parties to the Participation Agreement shall not modify, amend or
supplement, or give any consent, waiver, authorization or approval for the
purpose of adding provisions to or changing in any manner or eliminating
any of the provisions thereof or of modifying in any manner the rights of
the respective parties thereunder, with respect to the following provisions
of the Participation Agreement as in effect on the effective date hereof:
Articles 6, 8 and 9 and Section 10.01(b) (insofar as such Articles 6, 8 and
9 and Section 10.01(b) relate to the Indenture Trustee, the Pass Through
Trustee and the Holders), Article 7 and Sections 3.05, 15.01 and 17.11 and
any definition of terms used in the Participation Agreement, to the extent
that any modification of such definition would result in a modification of
the Participation Agreement not permitted pursuant to this subsection (b);
and
(4) modify, amend or supplement any of said agreements in order to
cure any ambiguity, to correct or supplement any provisions thereof which
may be defective or inconsistent with any other provision thereof or of any
provision of this Indenture, or to make any other provision with respect to
matters or questions arising thereunder or under this Indenture which shall
not be inconsistent with the provisions of this Indenture, provided the
making of any such other provision shall not adversely affect the interests
of the Holders.
(c) No modification, amendment, supplement, consent, waiver,
authorization or approval with respect to the Lease or the Participation
Agreement, whether effected pursuant to subsection (a) or pursuant to
subsection (b) of this Section 8.01 and anything in such subsections or
elsewhere in this Indenture to the contrary notwithstanding, shall, without
the consent of the Holder of each Outstanding Certificate affected thereby,
and each Liquidity Provider,
(1) modify, amend or supplement the Lease in such a way as to extend
the time of payment of Basic Rent or Supplemental Rent (other than Excepted
Payments) or Stipulated Loss Value or any other amounts payable to the
Indenture Trustee for its own account or for the account of the Holders
(subject in any event to Section 3.05 of the Lease) upon the occurrence of
an Event of Loss, or Termination Value or EBO Price and any other amounts
payable to the Indenture Trustee for its own account or for the account of
the Holders (subject in any event to Section 3.05 of the Lease) upon
termination of the Lease with respect to the Aircraft payable under, or as
provided in, the Lease as in effect on the effective date hereof, or reduce
the amount of any installment of Basic Rent or Supplemental Rent so that
the same is less than the payment of principal of, and interest on the
Certificates and Make-Whole Premium, if any, and amounts due to each
Liquidity Provider, as the case may be, to be made from such installment of
Basic Rent or Supplemental Rent, or reduce the aggregate amount of
Stipulated Loss Value, or any other amounts payable under, or as provided
in, the Lease as in effect on the effective date hereof upon the occurrence
of an Event of Loss so that the same is less than the accrued interest on
and the principal as of the Loss Payment Date, of the Certificates at the
time Outstanding or reduce the amount of Termination Value or EBO Price and
any other amounts payable under, or as provided in, the Lease as in effect
on the effective date hereof upon termination of the Lease with respect to
the Aircraft so that the same is less than the accrued interest on and
principal as of the Lease Termination Date or EBO Date, as the case may be,
and Make-Whole Premium, if any, of Certificates at the time Outstanding, or
(2) modify, amend or supplement the Lease in such a way as to, or
consent to any assignment of the Lease or give any consent, waiver,
authorization or approval which would, release the Lessee from its absolute
and unconditional obligations in respect of payment of Basic Rent or
Supplemental Rent, or Stipulated Loss Value and any other amounts payable
to the Indenture Trustee for its own account or the account of the Holders
(subject in any event to Section 3.05 of the Lease) upon the occurrence of
an Event of Loss, or Termination Value or EBO Price and any other amounts
payable to the Indenture Trustee for its own account or the account of the
Holders (subject in any event to Section 3.05 of the Lease) of the Lease
with respect to the Aircraft, payable under, or as provided in, the Lease
as in effect on the effective date hereof, except for any such assignment
pursuant to Section 2.12 hereof, and except as provided in the Lease as in
effect on the effective date hereof.
(d) At all times so long as this Indenture is in effect, the consent
of the Owner Trustee (at the direction of the Owner Participants) shall be
required in order (i) to amend, modify or supplement the Lease or any other
Operative Document to which the Owner Trustee is a party or to waive
compliance by the Lessee with any of its obligations thereunder and (ii) to
grant any consent requested under the Lease.
Notwithstanding the foregoing, but subject always to the provision of Section
15.05 hereof, the Indenture Trustee shall at all times have the right, to the
exclusion of the Owner Trustee and the Owner Participants, to (A) declare the
Lease to be in default under Article 17 (other than with respect to Excepted
Payments) thereof and (B) subject only to the provisions of this Indenture,
exercise the remedies set forth in such Article 17 of the Lease (other than in
connection with Excepted Payments) and in Article 7 hereof.
Nothing in this Indenture shall be deemed to prohibit the Owner
Participants or the Owner Trustee from making demand on the Lessee for, or
from commencing an action at law to obtain the payment of, or from receiving
payment of, any Excepted Payment; provided, however, that if the Owner Trustee
is proceeding under the Lease, the Owner Trustee shall proceed pursuant to
Section 17.01(a)(v), and only Section 17.01(a)(v), of the Lease.
Section 8.02. Owner Participants' Right to Elect to Prepay or
Purchase the Certificates. (a) If (i) an Event of Default shall have occurred
and be continuing for more than 180 days or the Certificates shall have become
due and payable pursuant to Section 7.02(b) or (c) hereof or (ii) an Event of
Default shall have occurred and be continuing for not more than 180 days and
the Certificates shall not have become due and payable pursuant to Section
7.02(b) or (c) hereof, the Owner Participants (or the Owner Trustee on behalf
of the Owner Participants) may, but shall be under no obligation to, do either
of the following:
(1) direct the Owner Trustee to cause the prepayment of all, but not
less than all, of the Certificates then Outstanding by notifying the
Indenture Trustee of such election, which notice in order to be effective
shall state that it is irrevocable and shall designate a Prepayment Date
which shall be a Business Day and which shall be not less than 15 days
after the date of such notice on which the Owner Trustee shall, in the
manner provided for in Section 6.04 hereof, deposit the sum of amounts
contemplated by paragraph "first" under Section 5.03 and the aggregate
Prepayment Price of all such Certificates with the Indenture Trustee. If
such payment by the Owner Trustee to the Indenture Trustee is made, the
Certificates shall cease to accrue interest from and after the Prepayment
Date, and after distribution of such payment to the Holders, the Indenture
Trustee shall release the Trust Indenture Estate from the Lien of this
Indenture; or
(2) purchase all, but not less than all, of the Outstanding
Certificates by notifying the Indenture Trustee of such election, which
notice in order to be effective shall state that it is irrevocable and
shall designate a date which shall be a Business Day and which shall be not
less than 15 days after the date of such notice on which the Owner Trustee
shall pay to the Indenture Trustee an amount equal to the aggregate unpaid
principal amount of all Outstanding Certificates, together with accrued
interest on such amount to the date of purchase, the aggregate amount of
any Make-Whole Premium applicable to each Outstanding Certificate (if such
purchase occurs prior to the Premium Termination Date for such Outstanding
Certificate) in the case of a purchase pursuant to clause (a)(ii) above,
plus all other sums due any Holder or the Indenture Trustee hereunder or
under the Participation Agreement or the Lease. Upon receipt by the
Indenture Trustee of such amount, each Holder will be deemed, whether or
not Certificates shall have been delivered to the Indenture Trustee on such
date, to have thereupon sold, assigned, transferred and conveyed (and shall
promptly take such actions as the Owner Participants shall reasonably
request to evidence such sale, assignment, transfer and conveyance) to the
Owner Participants (without recourse or warranty of any kind except for its
own acts), all of the right, title and interest of such Holder in and to
the Trust Indenture Estate and this Indenture and all Certificates held by
such Holder and the former Holders shall not be entitled to receive any
interest on the principal amount of such Certificates after the purchase
date, and the Owner Participants shall be deemed to have assumed (and shall
promptly take such actions as any Holder shall reasonably request to
evidence such assumption) all of such Holder's obligations under the
Participation Agreement and this Indenture arising subsequent to such sale.
If the Owner Trustee shall so request, such Holder will comply with all the
provisions of Section 2.06 of this Indenture to enable new Certificates to
be issued to the Owner Participants in such authorized denominations as the
Owner Participants shall request. All charges and expenses required
pursuant to Section 2.06 hereof in connection with the issuance of any such
new Certificates shall be borne by the Owner Participants.
(b) From and after the deposit by the Owner Trustee of the applicable
Prepayment Price or purchase price with the Indenture Trustee pursuant to
Section 8.02(a) hereof, the Owner Trustee shall be entitled to exercise all
remedies of the Indenture Trustee under Article VII hereof as well as of the
Lessor under the Lease.
Section 8.03. Certain Rights of Owner Participants. (a) If (A)
there shall occur an Event of Default under the Lease as a result of the
Lessee's failure to make any payment of an installment of Basic Rent, and (B)
the Owner Trustee shall have paid or caused to be paid on or prior to the date
which is 15 Business Days after such Event of Default all principal and
interest on the Certificates then due (as well as any interest on overdue
principal and (to the extent permitted by applicable law) interest), but not
including any principal or interest becoming due on account of such Event of
Default, then the failure of the Lessee to make the payment of such
installment of Basic Rent or of interest on account of such installment's
being overdue shall not constitute or result in an Indenture Event of Default
under this Indenture and any declaration based solely on the same shall be
deemed to be automatically rescinded. Nothing contained in the preceding
sentence shall be deemed to entitle the Owner Trustee to exercise any rights
and powers or pursue any remedies pursuant to Article 17 of the Lease or
otherwise except as set forth in this Indenture, and except that the Owner
Trustee or the Owner Participants may attempt to recover any amount paid by
it or them under this Indenture by demanding of the Lessee payment of such
amount, or by commencing an action at law against the Lessee for the payment
of such amount or taking appropriate action in a pending action at law against
the Lessee pursuant to Section 17.01(a)(v), but only said Section 17.01(a)(v),
of the Lease. Upon curing any such Event of Default pursuant to this Section
8.03, the Owner Trustee or the Owner Participants, as the case may be, shall,
so long as no Indenture Event of Default shall have occurred and be
continuing, be subrogated on an unsecured basis to all the rights of the
Indenture Trustee under the Lease in respect of the payment giving rise to
such Event of Default, and any right to any interest in respect of the same,
and shall be entitled to any payment of Basic Rent (or interest thereon)
actually made by the Lessee in respect of such cured payment upon receipt by
the Indenture Trustee; provided that no such amount shall be paid to the Owner
Trustee or the Owner Participants until all amounts then due and payable to
each Certificate Holder hereunder and thereunder shall have been paid in full
and no Indenture Event of Default shall have occurred and be continuing.
Notwithstanding anything in this Indenture or the Lease to the contrary, the
Owner Participants and the Owner Trustee collectively, shall not be entitled
to cure more than six (6) Events of Default (no more than three (3) of which
may be consecutive) occasioned by defaults in the payment of Basic Rent.
(b) If (A) there shall occur an Event of Default under the Lease for
any reason other than the Lessee's failure to make any payment of an
installment of Basic Rent and (B) the Owner Trustee shall have taken or caused
to be taken such action necessary to cure and shall have cured such Event of
Default prior to the date which is 15 Business Days after such Event of
Default, then the failure of the Lessee to perform such covenant, condition or
agreement, the observance or performance of which was accomplished by the
Owner Trustee hereunder shall not constitute or result in an Indenture Event
of Default under this Indenture and any declaration based solely on the same
shall be deemed to be automatically rescinded. Nothing contained in the
preceding sentence shall be deemed to entitle the Owner Trustee or the Owner
Participants to exercise any rights and powers or pursue any remedies pursuant
to Article 17 of the Lease or otherwise except as set forth in this Indenture,
and except that the Owner Trustee or the Owner Participants may attempt to
recover any amount paid by it or them in effecting such cure by demanding of
the Lessee payment of such amount, plus any interest due, or by commencing an
action at law against the Lessee for the payment of such amount or taking
appropriate action in a pending action at law against the Lessee pursuant to
Section 17.01(a)(v), but only said Section 17.01(a)(v), of the Lease. Upon
curing any such Event of Default pursuant to this Section 8.03(b), the Owner
Trustee or the Owner Participants, as the case may be, shall be subrogated to
all the rights of the Indenture Trustee under the Lease in respect of the
payment, agreement or covenant giving rise to such Event of Default, and any
right to any interest in respect of the same, and shall be entitled to any
payment or other performance upon receipt by the Indenture Trustee; provided
that no such amount shall be paid to the Owner Trustee or the Owner
Participants until all amounts then due and payable to each Certificate Holder
hereunder and thereunder shall have been paid in full and no Indenture Event
of Default shall have occurred and be continuing.
ARTICLE IX
CONCERNING THE INDENTURE TRUSTEE
Section 9.01. Acceptance of Trusts. The Indenture Trustee in its
individual capacity hereby accepts the trusts imposed upon it by this
Indenture, and covenants and agrees to perform the same as expressed herein
and agrees to receive and disburse all moneys constituting part of the Trust
Indenture Estate in accordance with the terms hereof.
Section 9.02. Duties and Responsibilities of the Indenture Trustee;
During an Indenture Event of Default; Prior to an Indenture Event of Default.
(a) The Indenture Trustee, prior to the occurrence of an Indenture Event of
Default and after the curing or waiving of all Indenture Events of Default
which may have occurred, undertakes to perform such duties and only such
duties as are specifically set forth in this Indenture. So long as an
Indenture Event of Default has occurred and has not been cured or waived, the
Indenture Trustee shall exercise such of the rights and powers vested in it by
this Indenture, and use the same degree of care and skill in their exercise,
as a prudent man would exercise or use under the circumstances in the conduct
of his own affairs. No provision of this Indenture shall be construed to
relieve the Indenture Trustee from liability for its own negligent action, its
own negligent failure to act or its own willful misconduct, except that:
(i) prior to the occurrence of an Indenture Event of Default and
after the curing or waiving of all Indenture Events of Default which may have
occurred:
(x) the duties and obligations of the Indenture Trustee shall be
determined solely by the express provisions of this Indenture, and the
Indenture Trustee shall not be liable except for the performance of such
duties and obligations as are specifically set forth in this Indenture, and no
implied covenants or obligations shall be read in to this Indenture against
the Indenture Trustee; and
(y) in the absence of bad faith on the part of the Indenture
Trustee, the Indenture Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed therein, upon any
statements, certificates or opinions furnished to the Indenture Trustee and
conforming to the requirements of this Indenture; but in the case of any such
statements, certificate or opinions which by any provision hereof are
specifically required to be furnished to the Indenture Trustee, the Indenture
Trustee shall be under a duty to examine the same to determine whether or not
they conform to the requirements of this Indenture;
(ii) the Indenture Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer or Responsible Officers
of the Indenture Trustee, unless it shall be proved that the Indenture Trustee
was negligent in ascertaining the pertinent facts; and
(iii) the Indenture Trustee shall not be liable with respect to any
action taken or not taken by it in good faith in accordance with the direction
of the Holders of not less than a majority in aggregate principal amount of
Outstanding Certificates relating to the time, method and place of conducting
any proceeding for any remedy available to the Indenture Trustee, or
exercising any trust or power conferred upon the Indenture Trustee, under this
Indenture.
None of the provisions contained in this Indenture shall require the
Indenture Trustee to expend or risk its own funds or otherwise incur personal
financial liability in the performance of any of its duties or in the exercise
of any of its rights or powers, if the Indenture Trustee shall have determined
in good faith that the repayment of such funds or adequate indemnity against
such liability is not reasonably assured to it.
The Indenture Trustee agrees that it will execute and the Owner
Trustee agrees that it will file or cause to be filed such continuation
statements with respect to financing statements relating to the security
interest created hereunder in the Trust Indenture Estate as may be specified
from time to time in written instructions of the Holders of not less than 25%
in aggregate principal amount of Certificates (which instructions may, by
their terms, be operative only at a future date and which shall be accompanied
by the execution form of such continuation statement so to be filed); provided
that, notwithstanding the foregoing, the Indenture Trustee may execute and
file or cause to be filed any financing statement which it from time to time
deems appropriate.
(b) If any Event of Default shall have occurred and be continuing
and, after the latest date on which the Owner Trustee may cure such Event of
Default pursuant to Section 8.03 hereof, on request of the Holders of not less
than 25% in aggregate principal amount of Outstanding Certificates and subject
to indemnification, to the extent provided in Sections 7.08 and 9.03 and
Article XI hereof, as it may require against the costs, expenses and
liabilities to be incurred, the Indenture Trustee shall exercise such remedies
under Article 17 of the Lease as shall be specified in such request.
(c) The Indenture Trustee agrees that it will, in its individual
capacity and at its own cost and expense (but without any right of indemnity
in respect of any such cost or expense under Article XI hereof) promptly take
such action as may be necessary duly to discharge all Indenture Trustee's
Liens on any part of the Trust Indenture Estate.
(d) The Indenture Trustee will execute and deliver to the Lessee for
filing in accordance with Article 18 of the Lease any properly presented
document, instrument or financing or continuation statement specified in any
opinion delivered pursuant to Section 6.03(e) of the Participation Agreement.
The Indenture Trustee may rely on the act of presentation of any such
document, instrument, financing or continuation statement as evidencing the
fact that it is properly prepared and presented, provided that the Indenture
Trustee shall promptly correct any error in any such document, instrument,
financing or continuation statement of which a Responsible Officer of the
Indenture Trustee has actual knowledge.
(e) The Indenture Trustee will furnish to each Holder promptly upon
receipt thereof, duplicates or copies of all reports, notices, requests,
demands, certificates, financial statements and other instruments furnished to
the Indenture Trustee, to the extent that the same shall not have been
otherwise furnished to such Holder pursuant to this Indenture or to the extent
the Indenture Trustee does not reasonably believe that the same shall have
been furnished by the Lessee directly to such Holder.
Section 9.03. Certain Rights of the Indenture Trustee. Subject to
Section 9.02 hereof:
(a) the Indenture Trustee may rely and shall be protected in acting
or refraining from acting upon any resolution, Officer's Certificate or any
other certificate, statement, instrument, opinion, report, notice, request,
consent, order, bond, debenture, note, coupon, security 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, direction, order or demand of the Owner Trustee
mentioned herein shall be sufficiently evidenced by an Officer's
Certificate (unless other evidence in respect thereof be herein
specifically prescribed) upon which the Indenture Trustee may rely to prove
or establish a matter set forth therein;
(c) the Indenture Trustee may consult with counsel and any advice or
Opinion of Counsel shall be full and complete authorization and protection
in respect of any action taken, suffered or omitted to be taken by it
hereunder in good faith and in accordance with such advice or Opinion of
Counsel;
(d) the Indenture Trustee shall be under no obligation to exercise
any of the trusts or powers vested in it by this Indenture at the request,
order or direction of any of the Holders pursuant to the provisions of this
Indenture, unless such Holders shall have offered to the Indenture Trustee
reasonable security or indemnity against the costs, expenses and
liabilities which might be incurred therein or thereby;
(e) the Indenture Trustee shall not be liable for any action taken
or omitted by it in good faith and believed by it to be authorized or
within the discretion, rights or powers conferred upon it by this Indenture;
(f) prior to the occurrence of an Indenture Event of Default
hereunder and after the curing or waiving of all Indenture Events of
Default, the Indenture Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, approval,
appraisal, bond, debenture, note, coupon, security, or other paper or
document unless requested in writing to do so by the Majority in Interest
of Certificate Holders; provided that, if the payment within a reasonable
time to the Indenture Trustee of the costs, expenses or liabilities likely
to be incurred by it in the making of such investigation is, in the opinion
of the Indenture Trustee, not reasonably assured to the Indenture Trustee
by the security afforded to it by the terms of this Indenture, the
Indenture Trustee may require reasonable indemnity against such costs,
expenses or liabilities as a condition to proceeding; the reasonable
expenses of every such examination shall be paid by the Owner Trustee or,
if paid by the Indenture Trustee or any predecessor trustee, shall be
repaid by the Owner Trustee upon demand; and
(g) the Indenture Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
agents or attorneys not regularly in its employ and the Indenture Trustee
shall not be responsible for any misconduct or negligence on the part of
any such agent or attorney appointed with due care by it hereunder.
Section 9.04. Indenture Trustee Not Responsible for Recitals,
Disposition of Certificates or Application of Proceeds Thereof. The Indenture
Trustee assumes no responsibility for the correctness of the recitals
contained herein and in the Certificates, except the Indenture Trustee's
certificates of authentication. The Indenture Trustee makes no
representation as to the validity or sufficiency of this Indenture or of the
Certificates. The Indenture Trustee shall not be accountable for the use or
application by the Owner Trustee of any of the Certificates or of the proceeds
thereof.
Section 9.05. Indenture Trustee and Agents May Hold Certificates;
Collections, etc. The Indenture Trustee or any agent of the Indenture Trustee
in its individual or any other capacity may become the owner or pledgee of
Certificates with the same rights it would have if it were not the Indenture
Trustee or such agent and may otherwise deal with the Owner Trustee and
receive, collect, hold and retain collections from the Owner Trustee with the
same rights it would have if it were not the Indenture Trustee or such agent.
Section 9.06. Moneys Held by Indenture Trustee. Subject to Sections
5.08 hereof and 14.04 hereof, all moneys received by the Indenture Trustee
shall, until used or applied as herein provided, be held in trust for the
purposes for which they were received, but need not be segregated from other
funds except to the extent required by mandatory provisions of law. Neither
the Owner Trustee nor, subject to Section 5.08 hereof, the Indenture Trustee
nor any agent thereof shall be under any liability for interest on any moneys
received by it hereunder.
Section 9.07. Right of Indenture Trustee to Rely on Officer's
Certificate, etc. Subject to Sections 9.02 and 9.03 hereof, whenever in the
administration of the trusts of this Indenture the Indenture Trustee shall
deem it necessary or desirable that a matter be proved or established prior to
taking or suffering or omitting any action hereunder, such matter (unless
other evidence in respect thereof be specifically prescribed herein) may, in
the absence of bad faith on the part of the Indenture Trustee, be deemed to be
conclusively proved and established by an Officer's Certificate delivered to
the Indenture Trustee, and such certificate, in the absence of bad faith on
the part of the Indenture Trustee, shall be full warrant to the Indenture
Trustee for any action taken, suffered or omitted by it under the provisions
of this Indenture upon the faith thereof.
Section 9.08. Replacement Airframes and Replacement Engines. At any
time and from time to time any Airframe or Engine which has been subject to an
Event of Loss and may, or is required to, be replaced under Section 10.03,
11.03 or 11.04 of the Lease by a Replacement Airframe or Replacement Engine,
as the case may be, shall be replaced in accordance with the provisions of
this Section 9.08 and the provisions of said Sections of the Lease, the Owner
Trustee shall, from time to time, direct the Indenture Trustee to execute and
deliver to or as directed in writing by the Owner Trustee an appropriate
instrument releasing such Airframe and/or Engine as appropriate from the Lien
of this Indenture and the Indenture Trustee shall execute and deliver such
instrument as aforesaid without recourse or warranty, but only upon receipt by
or deposit with the Indenture Trustee of the following:
(1) A written request from the Owner Trustee requesting such release
and specifically describing the Airframe and/or Engine(s) to be so released.
(2) A certificate signed by a duly authorized officer of the Lessee
stating the following:
A. With respect to the replacement of any Airframe:
(i) a description of the Airframe subject to the Event of Loss
including the manufacturer, model, FAA registration number (or other
applicable registration information) and manufacturer's serial number;
(ii) a description of the Replacement Airframe, including the
manufacturer, model, FAA registration number (or other applicable
registration information) and manufacturer's serial number;
(iii) that on the date of the Indenture and Security Agreement
Supplement relating to the Replacement Airframe the Owner Trustee
will be the legal owner of and have good and marketable title to such
Replacement Airframe free and clear of all Liens except Liens
permitted under Section 6.01 of the Lease, that such Replacement
Airframe will on such date be in at least as good operating condition
and repair as required by the terms of the Lease, and that such
Replacement Airframe has been or, substantially concurrently with
such replacement, will be duly registered in the name of the Owner
Trustee under the Transportation Code or under the law then
applicable to the registration of the Airframe subject to the Event
of Loss and that an airworthiness certificate has been duly issued
under the Transportation Code (or such other applicable law) with
respect to such Replacement Airframe and that such registration and
certificate is, or will be, in full force and effect, and that the
Lessee will have the full right and authority to use such Replacement
Airframe;
(iv) that the insurance required by Article 13 of the Lease is in
full force and effect with respect to such Replacement Airframe and
all premiums then due thereon have been paid in full;
(v) that the Replacement Airframe is of the same or an improved make
or model as the Airframe requested to be released from this Indenture;
(vi) that the value of the Replacement Airframe as of the date of such
certificate is not less than the value of the Airframe requested to
be released (assuming such Airframe was in the condition and repair
required to be maintained under the Lease);
(vii) that no Event of Default has occurred and is continuing or
would result from the making and granting of the request for release
and the addition of a Replacement Airframe;
(viii) that the release of the Airframe subject to the Event of Loss
will not impair the security of the Indenture in contravention of any
of the provisions of this Indenture;
(ix) that upon such replacement, the Lien of this Indenture will
apply to the Replacement Airframe and such Lien will be a first
priority security interest in favor of the Indenture Trustee; and
(x) that each of the conditions specified in Section 11.03 of the
Lease with respect to such Replacement Airframe has been satisfied.
B. With respect to the replacement of any Engine:
(i) a description of the Engine subject to the Event of Loss
including the manufacturer's serial number;
(ii) a description of the Replacement Engine including the
manufacturer's name, the engine model and serial number;
(iii) that on the date of the Indenture and Security Agreement
Supplement relating to the Replacement Engine the Owner Trustee will
be the legal owner of such Replacement Engine free and clear of all
Liens except Liens permitted under Section 6.01 of the Lease, and
that such Replacement Engine will on such date be in at least as good
operating condition and repair as required by the terms of the Lease;
(iv) that the value of the Replacement Engine as of the date of such
certificate is not less than the value of the Engine to be released
(assuming such Engine was in the condition and repair required to be
maintained under the Lease);
(v) that the release of the Engine subject to the Event of Loss will
not impair the security of the Indenture in contravention of any of
the provisions of this Indenture;
(vi) that upon such replacement, the Lien of this Indenture will
apply to the Replacement Engine and such Lien will be a first
priority security interest in favor of the Indenture Trustee; and
(vii) that each of the conditions specified in Section 10.03, 11.03
or 11.04 of the Lease with respect to such Replacement Engine has
been satisfied.
(3) The appropriate instruments (i) transferring to the Owner
Trustee title to the Replacement Airframe or Replacement Engine to be received
as consideration for the Airframe or Engine to be released and (ii) assigning
to the Owner Trustee the benefit of all manufacturer's and vendor's
warranties, if any, generally available with respect to such Replacement
Airframe or Replacement Engine, and an Indenture and Security Agreement
Supplement subjecting such Replacement Airframe or Replacement Engine to the
Trust Agreement and to the Lien of this Indenture.
(4) A certificate from a firm of independent aircraft appraisers of
national standing satisfactory to the Indenture Trustee and the Owner Trustee
confirming the accuracy of the information set forth in clause (2)A.(vi) of
this Section 9.08.
(5) The opinion of Davis Polk & Wardwell, special counsel to the
Lessee, or other counsel reasonably satisfactory to the Indenture Trustee,
stating that:
(i) the certificates, opinions and other instruments and/or property
which have been or are therewith delivered to and deposited with the
Indenture Trustee conform to the requirements of this Indenture and the
Lease and, upon the basis of such application, the property so sold or
disposed of may be properly released from the Lien of this Indenture and
all conditions precedent herein provided for relating to such release have
been complied with; and
(ii) the Replacement Airframe or Replacement Engine has been validly
subjected to the Lien of this Indenture and covered by the Lease, the
instruments subjecting such Replacement Airframe or Replacement Engine to
the Lease and to the Lien of this Indenture, as the case may be, have been
duly filed for recordation pursuant to the Transportation Code or any other
law then applicable to the registration of the Aircraft, and no further
action, filing or recording of any document is necessary or advisable in
order to establish and perfect the title of the Owner Trustee to and the
Lien of this Indenture on such Replacement Airframe or Replacement Engine
and the Indenture Trustee would be entitled to the benefits of Section 1110
of the Bankruptcy Code with respect to such Replacement Airframe or
Replacement Engine, provided, that such opinion need not be to the effect
specified in the foregoing clause to the extent that the benefits of such
Section 1110 would not have been, by reason of a change in law or
governmental interpretation thereof after the date hereof, available to the
Indenture Trustee with respect to the Aircraft immediately prior to such
substitution had such Event of Loss not occurred.
Section 9.09. Indenture and Security Agreement Supplement for
Replacements. In the event of the substitution of a Replacement Airframe or a
Replacement Engine as contemplated by Section 10.03 or Article 11 of the
Lease, the Owner Trustee and the Indenture Trustee agree for the benefit of
the Holders and the Lessee, subject to fulfillment of the conditions precedent
and compliance by the Lessee with its obligations set forth in Section 10.03
or Article 11 of the Lease, to execute and deliver an Indenture and Security
Agreement Supplement as contemplated by Section 9.08(3) hereof and, provided
no Event of Default shall have occurred and be continuing, execute and deliver
to the Lessee an appropriate instrument releasing the Airframe or Engine being
replaced from the Lien of this Indenture.
Section 9.10. Effect of Replacement. In the event of the
substitution of a Replacement Airframe or a Replacement Engine as contemplated
by Section 10.01 or Article 11 of the Lease and Section 9.08 hereof, all
provisions of this Indenture relating to the Airframe or Engine or Engines
being replaced shall be applicable to such Replacement Airframe or Replacement
Engine or Engines with the same force and effect as if such Replacement
Airframe or Replacement Engine or Engines were the same Airframe or engine or
engines, as the case may be, as the Airframe or Engine or Engines being
replaced but for the Event of Loss with respect to the Airframe or Engine or
Engines being replaced.
Section 9.11. Compensation. The Owner Trustee covenants and agrees
to pay, and the Indenture Trustee shall be entitled to receive, reasonable
compensation and payment or reimbursement for its reasonable advances,
expenses and disbursements (including the reasonable compensation and expenses
and disbursements of its counsel, agents and other persons not regularly in
its employ) in connection with its services rendered hereunder or in any way
relating to or arising out of the administration of the Trust Indenture Estate
and shall have a priority claim on the Trust Indenture Estate for the payment
of such compensation, advances, expenses and disbursements to the extent that
such compensation, advances, expenses and disbursements shall not be paid by
the Lessee, and shall have the right to use or apply any moneys held by it
hereunder in the Trust Indenture Estate toward such payments; provided that,
so long as the Lease is in effect, the Indenture Trustee shall not make any
claim for payment under this Section 9.11 against the Owner Trustee without
first making demand on the Lessee for payment of such claim. The Indenture
Trustee agrees that it shall have no right against any Holder, WTC or the
Owner Participants for any fee as compensation for its services as trustee
under this Indenture.
ARTICLE X
CONCERNING THE HOLDERS
Section 10.01. Evidence of Action Taken by Holders. (a) Any
request, demand, authorization, direction, notice, consent, waiver or other
action provided by this Indenture to be given or taken by Holders may be
embodied in and evidenced by one or more instruments of substantially similar
tenor signed by such Holders in person or by an agent duly appointed in
writing, and, except as otherwise expressly provided herein, such action shall
become effective when such instrument or instruments are delivered to the
Indenture Trustee and, if expressly required herein, to the Owner Trustee.
Proof of execution of any instrument or of a writing appointing any such agent
shall be sufficient for any purpose of this Indenture and (subject to Sections
9.02 and 9.03 hereof) conclusive in favor of the Indenture Trustee and the
Owner Trustee, if made in the manner provided in this Article.
(b) For the purpose of determining the Holders entitled to vote or
consent to any direction, waiver or other action of such Holders under Section
7.10 or 7.11 hereof, the Lessee may set a record date for such vote or consent
by specifying such record date in an Officer's Certificate delivered to the
Indenture Trustee. Such record date shall be a date not more than 15 days
prior to the first solicitation of such vote or consent.
Section 10.02. Proof of Execution of Instruments and of Holding of
Certificates. Subject to Sections 9.02 and 9.03 hereof, the execution of any
instrument by a Holder or his agent or proxy may be proved in accordance with
such reasonable rules and regulations as may be prescribed by the Indenture
Trustee. The holding of Certificates shall be proved by the Register or by a
certificate of the Registrar.
Section 10.03. Holders to Be Treated as Owners. Prior to due
presentment for registration of transfer of any Certificate, the Owner
Trustee, the Indenture Trustee, any agent of the Owner Trustee or the
Indenture Trustee, the Paying Agent, if any, the Registrar and the Lessee
shall deem and treat the Person in whose name such Certificate shall be
registered upon the Register as the absolute owner of such Certificate
(whether or not such Certificate shall be overdue and notwithstanding any
notation of ownership or other writing thereon) for the purpose of receiving
payment of or on account of the principal of and, subject to the provisions of
this Indenture, interest on such Certificate and for all other purposes; and
neither the Owner Trustee nor the Indenture Trustee (nor any agent of the
Owner Trustee or the Indenture Trustee) nor the Paying Agent, if any, nor the
Registrar nor the Lessee shall be affected by any notice to the contrary. All
such payments so made to any such person, or upon his order, shall be valid,
and, to the extent of the sum or sums so paid, effectual to satisfy and
discharge the liability for moneys payable upon any such Certificate.
Section 10.04. Certificates Owned by Owner Trustee and the Lessee
Deemed Not Outstanding. In determining whether the Holders of the requisite
aggregate principal amount of Certificates have concurred in any direction,
consent or waiver under this Indenture, Certificates which are owned by the
Owner Trustee, the Owner Participants, WTC, the Lessee or by any Affiliate
thereof shall be disregarded and deemed not to be Outstanding for the purpose
of any such determination; provided that for the purpose of determining
whether the Indenture Trustee shall be protected in relying on any such
direction, consent or waiver, only if a Responsible Officer of the Indenture
Trustee has actual knowledge that certain Certificates are so owned by any
person directly or indirectly controlling or controlled by or under direct or
indirect common control with the Owner Trustee, the Owner Participants, WTC or
the Lessee shall such Certificates be so disregarded; and provided further
that if all Certificates which would be deemed Outstanding in the absence of
the foregoing provision are owned by the Owner Trustee, WTC or the Owner
Participants or by any Affiliate thereof, then such Certificates shall be
deemed Outstanding for the purpose of any such determination. Certificates
so owned which have been pledged in good faith may be regarded as Outstanding
if the pledgee establishes to the satisfaction of the Indenture Trustee the
pledgee's right so to act with respect to such Certificates and that the
pledgee is not the Owner Trustee, the Owner Participants, WTC or the Lessee
or any Person directly or indirectly controlling or controlled by or under
direct or indirect common control with the Owner Trustee, the Owner
Participants, WTC or the Lessee. In case of a dispute as to such right, the
advice of counsel shall be full protection in respect of any decision made by
the Indenture Trustee in accordance with such advice, unless the Lessee, the
Owner Trustee, WTC, or the Owner Participants are actually named in the
Register. Upon request of the Indenture Trustee, the Owner Trustee, the Owner
Participants, WTC and the Lessee shall furnish to the Indenture Trustee
promptly an Officer's Certificate listing and identifying all Certificates, if
any, known by the Owner Trustee, the Owner Participants, WTC or the Lessee to
be owned or held by or for the account of any of the above-described persons;
and, subject to Sections 9.02 and 9.03 hereof, the Indenture Trustee shall be
entitled to accept such Officer's Certificate as conclusive evidence of the
facts set forth therein and of the fact that all Certificates not listed
therein are outstanding for the purpose of any such determination.
Section 10.05. Right of Revocation of Action Taken. At any time
prior to (but not after) the evidencing to the Indenture Trustee, as provided
in Section 10.01, of the taking of any action by the Holders of the percentage
in aggregate principal amount of the Certificates specified in this Indenture
in connection with such action, any Holder of a Certificate, the serial number
of which is shown by the evidence to be included among the serial numbers of
the Certificates the Holders of which have consented to such action, may, by
filing written notice at the Corporate Trust Department and upon proof of
holding as provided in this Article, revoke such action so far as concerns
such Certificate. Except as aforesaid, any such action taken by the Holder
shall be conclusive and binding upon such Holder and upon all future Holders
and owners of such Certificate and of any Certificates issued in exchange or
substitution therefor, irrespective of whether or not any notation in regard
thereto is made upon any such Certificate or otherwise. Any action taken by
the Holders of the percentage in aggregate principal amount of the
Certificates specified in this Indenture in connection with such action shall
be conclusively binding upon the Owner Trustee, the Indenture Trustee and the
Holders of all the Certificates.
Section 10.06. ERISA. Any Person, other than the Subordination
Agent, who is acquiring the Certificates will be deemed to represent and
warrant that (i) no assets of an employee benefit plan subject to Title I of
ERISA or an individual retirement account or plan subject to Section 4975 of
the Code, or any trust established under any such plan or account, have been
used to acquire or hold any of the Certificates, or (ii) that one or more
administrative or statutory exemptions from the prohibited transaction rules
under Section 406 of ERISA and Section 4975 of the Code applies to its
purchase and holding of the Certificates such that its purchase and holding of
the Certificates will not result in a non-exempt prohibited transaction under
Section 406 of ERISA and Section 4975 of the Code.
ARTICLE XI
INDEMNIFICATION OF INDENTURE
TRUSTEE BY OWNER TRUSTEE
The Owner Trustee, not individually but solely in its capacity as
Owner Trustee under the Trust Agreement, hereby agrees, whether or not any of
the transactions contemplated hereby shall be consummated, to assume liability
for, and does hereby indemnify, protect, save and keep harmless the Indenture
Trustee, in its individual capacity, and its successors, assigns, agents and
servants solely from the Lessor's Estate, with respect to the claims of the
Indenture Trustee for payment or reimbursement under Section 9.11 hereof and
from and against any and all liabilities, obligations, losses, damages,
penalties, taxes (excluding any taxes payable by the Indenture Trustee on or
measured by any compensation received by the Indenture Trustee for its
services under this Indenture), claims, actions, suits, costs, expenses or
disbursements (including legal fees and expenses) of any kind and nature
whatsoever which may be imposed on, incurred by or asserted against the
Indenture Trustee (whether or not also agreed to be indemnified against by any
other person under any other document) in any way relating to or arising out
of this Indenture, or any other Indenture Documents or the enforcement of any
of the terms of any thereof, or in any way relating to or arising out of the
manufacture, purchase, acceptance, nonacceptance, rejection, ownership,
delivery, lease, possession, use, operation, condition, sale, return or other
disposition of the Aircraft or any Engine (including, without limitation,
latent and other defects, whether or not discoverable, and any claim for
patent, trademark or copyright infringement), or in any way relating to or
arising out of the administration of the Trust Indenture Estate or the action
or inaction of the Indenture Trustee hereunder, except only (a) in the case of
willful misconduct or gross negligence of the Indenture Trustee in the
performance of its duties hereunder, (b) as may result from the inaccuracy of
any representation or warranty of the Indenture Trustee in the Participation
Agreement, (c) as otherwise provided in Section 9.02(c) hereof or (d) as
otherwise excluded by the terms of Article 8 or Article 9 of the Participation
Agreement from the Lessee's general indemnity or general tax indemnity to the
Indenture Trustee under said Articles; provided that so long as the Lease is in
effect, the Indenture Trustee shall not make any claim under this Article XI
for any claim or expense indemnified by the Lessee under the Participation
Agreement without first making demand on the Lessee for payment of such claim
or expense. The Indenture Trustee shall be entitled to indemnification, from
the Trust Indenture Estate, for any liability, obligation, loss, damage,
penalty, claim, action, suit, cost, expense or disbursement indemnified
against pursuant to this Article XI to the extent not reimbursed by the Lessee
or others, but without releasing any of them from their respective agreements
of reimbursement; and to secure the same the Indenture Trustee shall have a
prior Lien on the Trust Indenture Estate. The indemnities contained in this
Article XI shall survive the termination of this Indenture and the resignation
or removal of the Indenture Trustee. Upon payment in full by the Owner
Trustee of any indemnity pursuant to this Article XI, the Owner Trustee shall,
so long as no Indenture Event of Default shall have occurred and be
continuing, be subrogated to the rights of the Indenture Trustee, if any, in
respect of the matter as to which the indemnity was paid.
ARTICLE XII
SUCCESSOR TRUSTEES
Section 12.01. Notice of Successor Owner Trustee. In the case of any
appointment of a successor to the Owner Trustee pursuant to the Trust
Agreement or any merger, conversion, consolidation or sale of substantially
all of the corporate trust business of the Owner Trustee pursuant to the Trust
Agreement, the successor Owner Trustee shall give prompt written notice
thereof to the Indenture Trustee.
Section 12.02. Resignation and Removal of Indenture Trustee;
Appointment of Successor. (a) The Indenture Trustee or any successor thereto
may resign at any time without cause by giving at least 30 days' prior written
notice to the Owner Trustee, the Owner Participants, the Lessee and each
Holder, such resignation to be effective upon the acceptance of the
trusteeship by a successor Indenture Trustee. In addition, the Majority in
Interest of the Certificate Holders or the Owner Trustee, with the consent of
the Lessee and the Majority in Interest of the Certificate Holders may at any
time remove the Indenture Trustee without cause by an instrument in writing
delivered to the Lessee, the Owner Trustee, the Owner Participants, and the
Indenture Trustee, and the Indenture Trustee shall promptly notify each Holder
thereof of such action in writing, such removal to be effective upon the
acceptance of the trusteeship by a successor Indenture Trustee. In the case
of the resignation or removal of the Indenture Trustee, the Majority in
Interest of the Certificate Holders, or the Owner Trustee, with the consent of
the Lessee and the Majority in Interest of the Certificate Holders, may
appoint a successor Indenture Trustee by an instrument signed by such Holders.
If a successor Indenture Trustee shall not have been appointed within 30 days
after such notice of resignation or removal, the Indenture Trustee, the Owner
Trustee, the Lessee, the Owner Participants, or any Holder may apply to any
court of competent jurisdiction to appoint a successor Indenture Trustee to
act until such time, if any, as a successor shall have been appointed as
provided above. The successor Indenture Trustee so appointed by such court
shall immediately and without further act be superseded by any successor
Indenture Trustee appointed as provided above.
(b) In case at any time any of the following shall occur:
(i) the Indenture Trustee shall cease to be eligible in accordance
with the provisions of Section 12.03 hereof and shall fail to resign after
written request therefor by the Owner Trustee or by any Holder; or
(ii) the Indenture Trustee shall become incapable of acting, or shall
be adjudged a bankrupt or insolvent, or a receiver or liquidator of the
Indenture Trustee or of its property shall be appointed, or any public
officer shall take charge or control of the Indenture Trustee or of its
property or affairs for the purpose of rehabilitation, conservation or
liquidation;
then the Owner Trustee may remove the Indenture Trustee and, with the consent
of the Lessee, appoint a successor trustee by written instrument, in
duplicate, executed by a Responsible Officer of the Owner Trustee, one copy of
which instrument shall be delivered to the Indenture Trustee so removed and
one copy to the successor trustee, or, subject to the provisions of Section
7.13 hereof, any Holder who has been a bona fide Holder 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 Indenture Trustee
and the appointment of a successor trustee. Such court may thereupon, after
such notice, if any, as it may deem proper and prescribe, remove the Indenture
Trustee and appoint a successor trustee, which removal and appointment shall
become effective upon acceptance of appointment by the successor trustee as
provided in Section 12.04 hereof. The successor Indenture Trustee so
appointed by such court shall immediately and without further act be
superseded by any successor Indenture Trustee appointed as provided above
within one year from the date of appointment by such court.
Section 12.03. Persons Eligible for Appointment as Indenture
Trustee. There shall at all times be an Indenture Trustee hereunder which
shall be (i)(x) a bank or trust company organized and doing business under the
laws of the United States of America or any state or the District of Columbia
having a combined capital and surplus of at least $100,000,000 or (y) a bank
or trust company whose obligations hereunder are fully guaranteed by a direct
or indirect parent thereof having a combined capital and surplus of at least
$100,000,000 and (ii) a Citizen of the United States authorized under
applicable law to exercise corporate trust powers and subject to supervision
of examination by Federal, state or District of Columbia authority. If such
corporation publishes reports of condition at least annually, pursuant to law
or to the requirements of the aforesaid supervising or examining authority,
then for the purposes of this Section, 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 condition so published. In case at any
time the Indenture Trustee shall cease to be eligible in accordance with the
provisions of this Section, the Indenture Trustee shall resign immediately in
the manner and with the effect specified in Section 12.02 hereof.
Section 12.04. Acceptance of Appointment by Successor Trustee. Any
successor trustee appointed as provided in Section 12.02 hereof shall execute
and deliver to the Owner Trustee, the Lessee, and to its predecessor trustee
an instrument accepting such appointment hereunder, in form and substance
reasonably satisfactory to the Owner Trustee, and thereupon the resignation or
removal of the predecessor trustee shall become effective and such successor
trustee, without any further act, deed or conveyance, shall become vested with
all rights, powers, duties and obligations of its predecessor hereunder, with
like effect as if originally named as trustee herein; but, nevertheless, on
the written request of the Owner Trustee or of the successor trustee, upon
payment of its charges then unpaid, the trustee ceasing to act shall, subject
to Section 14.04 hereof, pay over to the successor trustee all moneys at the
time held by it hereunder and shall execute and deliver an instrument
transferring to such successor trustee all such rights, powers, duties and
obligations. Upon request of any such successor trustee, the Owner Trustee
shall execute any and all instruments in writing for more fully and certainly
vesting in and confirming to such successor trustee all such rights and
powers. Any trustee ceasing to act shall, nevertheless, retain a prior claim
upon all property or funds held or collected by such trustee to secure any
amounts then due it pursuant to the provisions of Article XI hereof.
No successor trustee shall accept appointment as provided in this
Section 12.04 unless at the time of such acceptance such successor trustee
shall be eligible under the provisions of Section 12.03 hereof.
Upon acceptance of appointment by a successor trustee as provided in
this Section 12.04, the successor trustee shall mail notice thereof by
first-class mail to the Holders at their last addresses as they shall appear
in the Register, and shall mail a copy of such notice to the Lessee and the
Owner Trustee. If the acceptance of appointment is substantially
contemporaneous with the resignation, then the notice called for by the
preceding sentence may be combined with the notice called for by Section 12.02
hereof.
Section 12.05. Merger, Conversion, Consolidation or Succession to
Business of Indenture Trustee. Any corporation into which the Indenture
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 Indenture Trustee shall be a party, or any corporation succeeding to
the corporate trust business of the Indenture Trustee, shall be the successor
to the Indenture Trustee hereunder, provided that, anything herein to the
contrary notwithstanding, such corporation shall be eligible under the
provisions of Section 12.03 hereof, without the execution or filing of any
paper or any further act on the part of any of the parties hereto.
In case at the time such successor to the Indenture Trustee shall
succeed to the trusts created by this Indenture any of the Certificates shall
have been authenticated but not delivered, any such successor to the Indenture
Trustee may adopt the certificate of authentication of any predecessor
Indenture Trustee and deliver such Certificates so authenticated; and, in case
at that time any of the Certificates shall not have been authenticated, any
successor to the Indenture Trustee may authenticate such Certificates either
in the name of any predecessor hereunder or in the name of the successor
Indenture Trustee; and in all such cases such certificate shall have the full
force which it is anywhere in the Certificates or in this Indenture provided
that the certificate of the Indenture Trustee shall have; provided, that the
right to adopt the certificate of authentication of any predecessor Indenture
Trustee or to authenticate Certificates in the name of any predecessor
Indenture Trustee shall apply only to its successor or successors by merger,
conversion or consolidation.
Section 12.06. Appointment of Separate Trustees. (a) At any time or
times, for the purpose of meeting any legal requirements of any jurisdiction
in which any part of the Trust Indenture Estate may at the time be located or
in which any action of the Indenture Trustee may be required to be performed
or taken, the Indenture Trustee, by an instrument in writing signed by it, may
appoint one or more individuals or corporations to act as a separate trustee
or separate trustees or co-trustee, acting jointly with the Indenture Trustee,
of all or any part of the Trust Indenture Estate, to the full extent that
local law makes it necessary for such separate trustee or separate trustees or
co-trustee acting jointly with the Indenture Trustee to act.
(b) The Indenture Trustee and, at the request of the Indenture
Trustee, the Owner Trustee, shall execute, acknowledge and deliver all such
instruments as may be required by the legal requirements of any jurisdiction
or by any such separate trustee or separate trustees or co-trustee for the
purpose of more fully confirming such title, rights or duties to such separate
trustee or separate trustees or co-trustee. Upon the acceptance in writing of
such appointment by any such separate trustee or separate trustees or
co-trustee, it, he or they shall be vested with such title to the Trust
Indenture Estate or any part thereof, and with such rights, powers, duties and
obligations, as shall be specified in the instrument of appointment, and such
rights, powers, duties and obligations shall be conferred or imposed upon and
exercised or performed by the Indenture Trustee, or the Indenture Trustee and
such separate trustee or separate trustees or co-trustee jointly with the
Indenture Trustee subject to all the terms of this Indenture, except to the
extent that under any law of any jurisdiction in which any particular act or
acts are to be performed the Indenture Trustee shall be incompetent or
unqualified to perform such act or acts, in which event such rights, powers,
duties and obligations shall be exercised and performed by such separate
trustee or separate trustees or co-trustee, as the case may be. Any separate
trustee or separate trustees or co-trustee may, at any time by an instrument
in writing, constitute the Indenture Trustee its or his attorney-in-fact and
agent with full power and authority to do all acts and things and to exercise
all discretion on its or his behalf and in its or his name. In case any such
separate trustee or co-trustee shall die, become incapable of acting, resign
or be removed, the title to the Trust Indenture Estate and all assets,
property, rights, powers, duties and obligations and duties of such separate
trustee or co-trustee shall, so far as permitted by law, vest in and be
exercised by the Indenture Trustee, without the appointment of a successor to
such separate trustee or co-trustee unless and until a successor is appointed.
(c) All provisions of this Indenture which are for the benefit of
the Indenture Trustee (including without limitation Article XI hereof) shall
extend to and apply to each separate trustee or co-trustee appointed pursuant
to the foregoing provisions of this Section 12.06.
(d) Every additional trustee and separate trustee hereunder shall,
to the extent permitted by law, be appointed and act and the Indenture Trustee
shall act, subject to the following provisions and conditions:
(i) all powers, duties, obligations and rights conferred upon the
Indenture Trustee in respect of the receipt, custody, investment and
payment of moneys shall be exercised solely by the Indenture Trustee;
(ii) all other rights, powers, duties and obligations conferred or
imposed upon the Indenture Trustee shall be conferred or imposed and
exercised or performed by the Indenture Trustee and such additional trustee
or trustees and separate trustee or trustees jointly except to the extent
that under any law of any jurisdiction in which any particular act or acts
are to be performed, the Indenture Trustee shall be incompetent or
unqualified to perform such act or acts, in which event such rights,
powers, duties and obligations (including the holding of title to the Trust
Indenture Estate in any such jurisdiction) shall be exercised and performed
by such additional trustee or trustees or separate trustee or trustees;
(iii) no power hereby given to, or exercisable by, any such additional
trustee or separate trustee shall be exercised hereunder by such additional
trustee or separate trustee except jointly with, or with the consent of,
the Indenture Trustee; and
(iv) no trustee hereunder shall be liable either personally or in its
capacity as such trustee, by reason of any act or omission of any other
trustee hereunder.
If at any time the Indenture Trustee shall deem it no longer necessary or
prudent in order to conform to any such law, the Indenture Trustee shall
execute and deliver an indenture supplemental hereto and all other instruments
and agreements necessary or proper to remove any additional trustee or
separate trustee.
(e) Any request, approval or consent in writing by the Indenture
Trustee to any additional trustee or separate trustee shall be sufficient
warrant to such additional trustee or separate trustee, as the case may be, to
take such action as may be so requested, approved or consented to.
(f) Notwithstanding any other provision of this Section 12.06, the
powers of any additional trustee or separate trustee shall not exceed those of
the Indenture Trustee hereunder.
ARTICLE XIII
SUPPLEMENTS AND AMENDMENTS TO THIS
TRUST INDENTURE AND OTHER DOCUMENTS
Section 13.01. Supplemental Indentures Without Consent of Holders.
The Owner Trustee (when authorized by the Owner Participants) and the
Indenture Trustee, without consent of the Holders, may enter into an indenture
or indentures supplemental hereto for one or more of the following purposes:
(a) to convey, transfer, assign, mortgage or pledge any property or
assets to the Indenture Trustee as security for the Certificates;
(b) to evidence the succession of another corporation to the Owner
Trustee or successive successions, and the assumption by the successor
corporation of the covenants, agreements and obligations of the Owner
Trustee herein and in the Certificates;
(c) to add to the covenants of the Owner Trustee such further
covenants, restrictions, conditions or provisions as it and the Indenture
Trustee shall consider to be for the protection of the Holders, and to make
the occurrence, or the occurrence and continuance, of a default in any such
additional covenants, restrictions, conditions or provisions an Indenture
Event of Default permitting the enforcement of all or any of the several
remedies provided herein; provided, that in respect of any such additional
covenant, restriction, condition or provision such supplemental indenture
may provide for a particular period of grace after default (which period
may be shorter or longer than that allowed in the case of other defaults)
or may provide for an immediate enforcement upon such an Indenture Event of
Default or may limit the remedies available to the Indenture Trustee upon
such an Indenture Event of Default or may limit the right of not less than
the Majority in Interest of Certificate Holders to waive such an Indenture
Event of Default;
(d) to surrender any right or power conferred herein upon the Owner
Trustee or the Owner Participants;
(e) to cure any ambiguity or to correct or supplement any provision
contained herein or in any supplemental indenture which may be defective or
inconsistent with any other provision contained herein or in any
supplemental indenture; or to make such other provisions in regard to
matters or questions arising under this Indenture or under any supplemental
indenture as the Owner Trustee may deem necessary or desirable and which
shall not adversely affect the interests of the Holders;
(f) to correct or amplify the description of any property at any
time subject to the Lien of this Indenture or better to assure, convey and
confirm unto the Indenture Trustee any property subject or required to be
subject to the Lien of this Indenture or to subject Replacement Airframe or
Replacement Engines to the Lien of this Indenture in accordance with the
provisions hereof or with the Lease or to release from the Lien of this
Indenture property that has been substituted on or removed from the
Aircraft as contemplated in Section 3.07 hereof; provided that supplements
to this Indenture entered into for the purpose of subjecting Replacement
Airframe or Replacement Engines to the Lien of this Indenture need only be
executed by the Owner Trustee and the Indenture Trustee;
(g) to provide for the issuance under this Indenture of Certificates
in coupon form (including Certificates registrable as to principal only)
and to provide for exchangeability of such Certificates with Certificates
issued hereunder in fully registered form, and to make all appropriate
changes for such purpose;
(h) to effect the re-registration of the Aircraft pursuant to
Section 6.03(b) of the Participation Agreement; and
(i) to add, eliminate or change any provision hereunder so long as
such action shall not adversely affect the interests of the Holders.
The Indenture Trustee is hereby authorized to join in the execution
of any such supplemental indenture, to make any further appropriate agreements
and stipulations which may be contained therein and to accept the conveyance,
transfer, assignment, mortgage or pledge of any property thereunder, but the
Indenture Trustee shall not be obligated to enter into any such supplemental
indenture which adversely affects the Indenture Trustee's own rights, duties
or immunities under this Indenture or otherwise.
Any such supplemental indenture may be executed without the consent of
the Holders of Outstanding Certificates, notwithstanding any of the provisions
of Section 13.02 hereof.
Section 13.02. Supplemental Indentures With Consent of Holders.
With the consent (evidenced as provided in Article X) of the Majority in
Interest of Certificate Holders, the Owner Trustee (when authorized by the
Owner Participants) and the Indenture Trustee may, from time to time and at
any time, enter into an indenture or indentures supplemental hereto for the
purpose of adding any provisions to or changing in any manner or eliminating
any of the provisions of this Indenture or of any supplemental indenture or of
modifying in any manner the rights of the Holders; provided, however, that,
without the consent of each and every Holder and each Liquidity Provider, no
such amendment of or supplement to this Indenture or any indenture
supplemental hereto, or modification of the terms of, or consent under, any
thereof, shall (a) modify any of the provisions of Section 7.11 hereof or this
Section 13.02, (b) reduce the amount or extend the time of payment of any
amount owing or payable under any Certificate or reduce the interest payable
on any Certificate (except that only the consent of the Holder shall be
required for any decrease in any amounts of or the rate of interest payable on
such Certificate or any extension for the time of payment of any amount
payable under such Certificate), or alter or modify the provisions of Article
V hereof with respect to the order of priorities in which distributions
thereunder shall be made as among Holders of different Series of Certificates
or as between the Holder and the Owner Trustee or the Owner Participants or
with respect to the amount or time of payment of any such distribution, or
alter or modify the circumstances under which a Make-Whole Premium shall be
payable, or alter the currency in which any amount payable under any
Certificate is to be paid, or impair the right of any Holder to commence legal
proceedings to enforce a right to receive payment hereunder, (c) reduce,
modify or amend any indemnities in favor of any Holder or in favor of or to be
paid by the Owner Participants (except as consented to by each Person
adversely affected thereby), or (d) create or permit the creation of any Lien
on the Trust Indenture Estate or any part thereof prior to or pari passu with
the Lien of this Indenture, except as expressly permitted herein, or deprive
any Holder of the benefit of the Lien of this Indenture on the Trust Indenture
Estate, except as provided in Section 7.02 hereof or in connection with the
exercise of remedies under Article VII. This Section 13.02 shall not apply to
any indenture or indentures supplemental hereto permitted by, and complying
with the terms of, Section 13.06 hereof.
Upon the request of the Owner Trustee (at the direction of the Owner
Participants) and upon the filing with the Indenture Trustee of evidence of
the consent of Holders and other documents, if any, required by Section 10.01,
the Indenture Trustee shall join with the Owner Trustee and the Lessee in the
execution of such supplemental indenture unless such supplemental indenture
affects the Indenture Trustee's own rights, duties or immunities under this
Indenture or otherwise, in which case the Indenture Trustee may in its
discretion, but shall not be obligated to, enter into such supplemental
indenture.
It shall not be necessary for the consent of the Holders under this
Section to approve the particular form of any proposed supplemental indenture,
but it shall be sufficient if such consent shall approve the substance
thereof.
Promptly after the execution by the Owner Trustee, the Indenture
Trustee and the Lessee of any supplemental indenture pursuant to the
provisions of this Section, the Indenture Trustee shall mail a notice thereof
by first-class mail to the Holders at their addresses as they shall appear on
the registry books of the Registrar, setting forth in general terms the
substance of such supplemental indenture. Any failure of the Indenture
Trustee to mail such notice, or any defect therein, shall not, however, in any
way impair or affect the validity of any such supplemental indenture.
Section 13.03. Effect of Supplemental Indenture. Upon the execution
of any supplemental indenture pursuant to the provisions hereof, this
Indenture shall be and be deemed to be modified and amended in accordance
therewith and the respective rights, limitations of rights, obligations,
duties and immunities under this Indenture of the Indenture Trustee, the Owner
Trustee, the Lessee and the Holders shall thereafter be determined, exercised
and enforced hereunder subject in all respects to such modifications and
amendments, and all the terms and conditions of any such supplemental
indenture shall be and be deemed to be part of the terms and conditions of
this Indenture for any and all purposes.
Section 13.04. Documents to Be Given to Indenture Trustee. The
Indenture Trustee, subject to the provisions of Sections 9.02 and 9.03, may
receive an Officer's Certificate and an Opinion of Counsel as conclusive
evidence that any such supplemental indenture complies with the applicable
provisions of this Indenture.
Section 13.05. Notation on Certificates in Respect of Supplemental
Indentures. Certificates authenticated and delivered after the execution of
any supplemental indenture pursuant to the provisions of this Article may bear
a notation in form approved by the Indenture Trustee as to any matter provided
for by such supplemental indenture. If the Owner Trustee or the Indenture
Trustee shall so determine, new Certificates so modified as to conform, in the
opinion of the Owner Trustee and the Indenture Trustee, to any modification of
this Indenture contained in any such supplemental indenture may be prepared by
the Owner Trustee, authenticated by the Indenture Trustee and delivered in
exchange for the Outstanding Certificates.
Section 13.06. No Request Necessary for Lease Supplement or Indenture
and Security Agreement Supplement. Notwithstanding anything contained in
Section 13.02 hereof, no written request or consent of the Indenture Trustee,
any Holder or the Owner Participants pursuant to Section 13.02 hereof shall be
required to enable the Owner Trustee to enter into any supplement to the Lease
with the Lessee in accordance with the terms and conditions of the Lease to
subject a Replacement Airframe or Replacement Engine thereto or to execute and
deliver an Indenture and Security Agreement Supplement pursuant to the terms
hereof.
Section 13.07. Notices to Liquidity Providers. Any request made to
any Holder for consent to any amendment, supplement or waiver pursuant to
Section 7.11, 8.01 or this Article XIII shall be promptly furnished by the
Indenture Trustee to each Liquidity Provider.
ARTICLE XIV
SATISFACTION AND DISCHARGE OF INDENTURE;
UNCLAIMED MONEYS
Section 14.01. Satisfaction and Discharge of Indenture; Termination
of Indenture. If at any time after (a) the Owner Trustee shall have paid or
caused to be paid the principal of and interest on all the Certificates
outstanding hereunder, as and when the same shall have become due and payable,
or (b) the Owner Trustee shall have delivered to the Indenture Trustee for
cancellation all Certificates theretofore authenticated (other than any
Certificates which shall have been destroyed, lost or stolen and which shall
have been replaced or paid as provided in Section 2.07 hereof) or (c) (i) all
such Certificates not theretofore delivered to the Indenture Trustee for
cancellation shall have become due and payable, or are by their terms to
become due and payable within one year or are to be called for prepayment
within one year under arrangements satisfactory to the Indenture Trustee for
the giving of notice of prepayment by the Indenture Trustee in the name and at
the expense of the Owner Trustee, and (ii) the Owner Trustee shall have
irrevocably deposited or caused to be deposited with the Indenture Trustee as
trust funds the entire amount in cash (other than moneys repaid by the
Indenture Trustee or any paying agent to the Owner Trustee in accordance with
Section 14.04 hereof) or Government obligations maturing as to principal and
interest in such amounts and at such times as will insure the availability of
cash sufficient to pay at maturity all such Certificates not theretofore
delivered to the Indenture Trustee for cancellation, including principal and
interest due or to become due to such date of maturity as the case may be, and
if, in any such case, the Owner Trustee shall also pay or cause to be paid all
other sums then payable hereunder by the Owner Trustee, then this Indenture
shall cease to be of further effect (except in the case of (c) above as to (A)
rights of registration of transfer and exchange, and the Owner Trustee's right
of optional prepayment pursuant to Section 6.02(a)(ii) hereof, (B)
substitution of mutilated, defaced, destroyed, lost or stolen Certificates,
(C) rights of Holders to receive payments of principal thereof and interest
thereon, upon the original stated due dates therefor (but not upon
acceleration), (D) the rights, obligations, indemnities and immunities of the
Indenture Trustee hereunder and (E) the rights of the Holders as beneficiaries
hereof with respect to the property so deposited with the Indenture Trustee
payable to all or any of them), and the Indenture Trustee, on demand of the
Owner Trustee accompanied by an Officer's Certificate and an Opinion of
Counsel (covering such matters reasonably requested by, and in form and
substance reasonably satisfactory to, the Indenture Trustee) and at the cost
and expense of the Owner Trustee, shall execute proper instruments
acknowledging such satisfaction of and discharging this Indenture. The Owner
Trustee agrees to reimburse and indemnify the Indenture Trustee for any costs
or expenses thereafter reasonably and properly incurred and to compensate the
Indenture Trustee for any services thereafter reasonably and properly rendered
by the Indenture Trustee in connection with this Indenture or the
Certificates.
Upon (or at any time after) payment in full to the Indenture Trustee,
as trust funds, of the principal of and interest on and Make-Whole Premium, if
any, and all other amounts due hereunder and under all Certificates and
provided that there shall then be no other amounts due to the Indenture
Trustee hereunder or under the Participation Agreement or otherwise secured
hereby, the Owner Trustee shall direct the Indenture Trustee to execute and
deliver to or as directed in writing by the Owner Trustee an appropriate
instrument releasing the Aircraft from the Lien of this Indenture and
releasing the Indenture Documents from the assignment thereof hereunder, and
the Indenture Trustee shall execute and deliver such instrument as aforesaid
and, at the Owner Trustee's expense, will execute and deliver such other
instruments or documents as may be reasonably requested by the Owner Trustee
to give effect to such release; provided, however, that this Indenture and the
trusts created hereby shall terminate earlier and this Indenture shall be of
no further force or effect upon any sale or other final disposition by the
Indenture Trustee of all property forming a part of the Trust Indenture Estate
and the final distribution by the Indenture Trustee of all moneys or other
property or proceeds constituting part of the Trust Indenture Estate in
accordance with the terms hereof. Except as aforesaid otherwise provided,
this Indenture and the trusts created hereby shall continue in full force and
effect in accordance with the terms hereof.
Section 14.02. Application by Indenture Trustee of Funds Deposited
for Payment of Certificates. Subject to Section 14.04 hereof, all moneys
deposited with the Indenture Trustee pursuant to Section 14.01 hereof shall be
held in trust and applied by it to the prompt payment, either directly or
through any Paying Agent, to the Holders of the particular Certificates for
the payment or prepayment of which such moneys have been deposited with the
Indenture Trustee, of all sums due and to become due thereon for principal,
interest and Make-Whole Premium, if any, but such money need not be segregated
from other funds except to the extent required by law.
Section 14.03. Repayment of Moneys Held by Paying Agent. Upon the
satisfaction and discharge of this Indenture all moneys then held by any
Paying Agent under the provisions of this Indenture shall, upon demand of the
Owner Trustee, be repaid to it or paid to the Indenture Trustee and thereupon
such Paying Agent shall be released from all further liability with respect to
such moneys.
Section 14.04. Transfer of Moneys Held by Indenture Trustee and
Paying Agent Unclaimed for Two Years and Eleven Months. Any moneys deposited
with or paid to the Indenture Trustee or any Paying Agent for the payment of
the principal of or interest or Make-Whole Premium on any Certificate and not
applied but remaining unclaimed for two years and eleven months after the date
upon which such principal, interest or Make-Whole Premium shall have become
due and payable, shall, unless otherwise required by mandatory provisions of
applicable escheat or abandoned or unclaimed property law, be paid to the
Owner Trustee (or, if the Trust Agreement shall no longer be in effect, to the
Owner Participants) by the Indenture Trustee or such Paying Agent and the
Holder of such Certificate, as a general unsecured creditor, shall, unless
otherwise required by mandatory provisions of applicable escheat or abandoned
or unclaimed property laws, thereafter look only to the Owner Trustee (or the
Owner Participants) for any payment which such Holder may be entitled to
collect, and all liability of the Indenture Trustee, or any Paying Agent with
respect to such moneys shall thereupon cease.
ARTICLE XV
MISCELLANEOUS
Section 15.01. Capacity in Which Acting. Each of WTC (or its
permitted successors or assigns) and the Indenture Trustee acts hereunder not
in its individual capacity but solely as trustee except as expressly provided
herein and in the other Operative Documents, and, in the case of WTC (or its
permitted successors or assigns), in the Trust Agreement.
Section 15.02. No Legal Title to Trust Indenture Estate in Holders.
No Holder shall have legal title to any part of the Trust Indenture Estate.
No transfer, by operation of law or otherwise, of any Certificate or other
right, title and interest of any Holder in and to the Trust Indenture Estate
or hereunder shall operate to terminate this Indenture or entitle such Holder
or any successor or transferee of such Holder to an accounting or to the
transfer to it of legal title to any part of the Trust Indenture Estate.
Section 15.03. Sale of Trust Indenture Estate by Indenture Trustee is
Binding. Any sale or other conveyance of all or any part of the Trust
Indenture Estate by the Indenture Trustee made pursuant to the terms of this
Indenture or of the Lease shall bind the Lessee, the Owner Trustee, the
Holders and the Owner Participants and shall be effective to transfer or
convey all right, title and interest of the Indenture Trustee, the Owner
Trustee, the Owner Participants and such Holders therein and thereto. No
purchaser or other grantee shall be required to inquire as to the
authorization, necessity, expediency or regularity of such sale or conveyance
or as to the application of any sale or other proceeds with respect thereto by
the Indenture Trustee.
Section 15.04. Indenture for Benefit of Owner Trustee, Indenture
Trustee, Owner Participants, Holders and Liquidity Providers. Nothing in this
Indenture, whether express or implied, shall be construed to give to any
person other than WTC, the Owner Trustee, the Lessee, the Indenture Trustee,
as trustee and in its individual capacity, the Owner Participants, each
Liquidity Provider and the Holders any legal or equitable right, remedy or
claim under or in respect of this Indenture. Upon termination of this
Indenture pursuant to Article XIV hereof, the Indenture Trustee in connection
with the satisfaction of the Indenture shall return to the Owner Trustee all
property (and related documents and instruments) constituting or evidencing
the Trust Indenture Estate.
Section 15.05. No Action Contrary to the Lessee's Rights Under the
Lease. Notwithstanding any of the provisions of this Indenture or the Trust
Agreement to the contrary, so long as no Event of Default shall have occurred
and be continuing, neither the Indenture Trustee nor the Owner Trustee will
take any affirmative acts that interfere with the peaceful and quiet
possession and enjoyment of the Aircraft by the Lessee.
Section 15.06. Notices. Unless otherwise expressly specified or
permitted by the terms hereof, all notices, requests, demands, authorizations,
directions, consents, waivers or documents provided or permitted by this
Indenture to be made, given, furnished or filed shall be in writing, mailed by
certified mail, postage prepaid, or by confirmed telex or telecopy, and (a) if
to the Owner Trustee, addressed to it at its office at Rodney Square North,
1100 North Market Street, Wilmington, Delaware 19890-0001, Attention:
Corporate Trust Administration (telephone: (302) 651-1000, facsimile: (302)
651-8882) (with a copy to the Owner Participants at the address provided for
notice pursuant to Section 14.01 of the Participation Agreement), (b) if
personally delivered to the Indenture Trustee, addressed to it at its office
at 79 South Main Street, Salt Lake City, Utah 84111 (telephone: (801)
246-5630, facsimile: (801) 243-5053), Attention: Corporate Trust Department
or (c) if to the Owner Participants, a Liquidity Provider or the Lessee,
addressed to such party at such address as such party shall have furnished by
notice to the Owner Trustee and the Indenture Trustee, or, until an address is
so furnished, addressed to the address of such party if any, set forth in
Section 14.01 of the Participation Agreement. Any party hereto may change the
address to which notices to such party will be sent by giving notice of such
change to the other parties to this Indenture.
Where this Indenture provides for notice to Holders, such notice
shall be sufficiently given (unless otherwise expressly provided herein) if in
writing and mailed, first-class postage prepaid, to each Holder entitled
thereto, at such Holder's last address as it appears in the Register. In any
case where notice to Holders is given by mail, neither the failure to mail
such notice, nor any defect in any notice so mailed, to any particular Holder
shall affect the sufficiency of such notice with respect to other Holders.
Where this Indenture provides for notice in any manner, such notice may be
waived in writing by the person entitled to receive such notice, either before
or after the event, and such waiver shall be the equivalent of such notice.
Waivers of notice by Holders shall be filed with the Indenture Trustee, but
such filing shall not be a condition precedent to the validity of any action
taken in reliance upon such waiver.
In case, by reason of the suspension of or irregularities in regular
mail service, it shall be impracticable to mail notice to the Owner Trustee
and Holders when such notice is required to be given pursuant to any provision
of this Indenture, then any manner of giving such notice as shall be
satisfactory to the Indenture Trustee shall be deemed to be a sufficient
giving of such notice.
Section 15.07. Officer's Certificates and Opinions of Counsel;
Statements to Be Contained Therein. Upon any application or demand by the
Lessee or the Owner Trustee to the Indenture Trustee to take any action under
any of the provisions of this Indenture, the Lessee or the Owner Trustee, as
the case may be, shall furnish to the Indenture Trustee upon request (a) an
Officer's Certificate stating that all conditions precedent provided for in
this Indenture relating to the proposed action have been complied with and
that the proposed action is in conformity with the requirements of this
Indenture, and (b) 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 demand as to which the furnishing
of such documents is specifically required by any provision of this Indenture
relating to such particular application or demand, no additional certificate
or opinion need be furnished.
Any certificate, statement or opinion of an officer of WTC may be
based, insofar as it relates to legal matters, upon a certificate or opinion
of or representations by counsel, unless such officer knows that the
certificate or opinion or representations with respect to the matters upon
which his certificate, statement or opinion may be based as aforesaid are
erroneous, or in the exercise of reasonable care should know that the same are
erroneous. Any certificate, statement or opinion of counsel may be based,
insofar as it relates to factual matters information with respect to which is
in the possession of the Lessee or WTC, upon the certificate, statement or
opinion of or representations by an officer or officers of the Lessee or WTC,
as the case may be, unless such counsel knows that the certificate, statement
or opinion or representations with respect to the matters upon which his
certificate, statement or opinion may be based as aforesaid are erroneous, or
in the exercise of reasonable care should know that the same are erroneous.
Any certificate, statement or opinion of an officer of the Lessee or
WTC or of counsel thereto may be based, insofar as it relates to accounting
matters, upon a certificate or opinion of or representations by an accountant
or firm of accountants employed by the Lessee or the Owner Trustee, as the
case may be, unless such officer or counsel, as the case may be, knows that
the certificate or opinion or representations with respect to the accounting
matters upon which his certificate, statement or opinion may be based as
aforesaid are erroneous, or in the exercise of reasonable care should know
that the same are erroneous.
Any certificate or opinion of any independent firm of public
accountants filed with the Indenture Trustee shall contain a statement that
such firm is independent.
Section 15.08. Severability. Any provision of this Indenture which
is prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and any
such prohibition or unenforceability in any jurisdiction shall not invalidate
or render unenforceable such provision in any other jurisdiction.
Section 15.09. No Oral Modifications or Continuing Waivers. No
terms or provisions of this Indenture or the Certificates may be changed,
waived, discharged or terminated orally, but only by an instrument in writing
signed by the party or other person against whom enforcement of the change,
waiver, discharge or termination is sought; and any waiver of the terms hereof
or of any Certificate shall be effective only in the specific instance and for
the specific purpose given.
Section 15.10. Successors and Assigns. All covenants and agreements
contained herein shall be binding upon, and inure to the benefit of, each of
the parties hereto and the successors and permitted assigns of each, all as
herein provided. Any request, notice, direction, consent, waiver or other
instrument or action by any Holder shall bind the successors and assigns of
such Holder. This Indenture and the Trust Indenture Estate shall not be
affected by any amendment or supplement to the Trust Agreement or by any other
action taken under or in respect of the Trust Agreement, except that each
reference in this Indenture to the Trust Agreement shall mean the Trust
Agreement as amended and supplemented from time to time to the extent
permitted hereby and thereby.
Section 15.11. Headings. The headings of the various Articles and
Sections herein and in the table of contents hereto are for the convenience of
reference only and shall not define or limit any of the terms or provisions
hereof.
Section 15.12. Normal Commercial Relations. Anything contained in
this Indenture to the contrary notwithstanding, the Owner Participants, the
Indenture Trustee and any Holder, or any bank or other affiliate of any such
party, may conduct any banking or other financial transactions, and have
banking or other commercial relationships, with the Lessee fully to the same
extent as if this Indenture were not in effect, including without limitation
the making of loans or other extensions of credit to the Lessee for any
purpose whatsoever, whether related to any of the transactions contemplated
hereby or otherwise.
Section 15.13. Governing Law; Counterparts. THIS INDENTURE AND
EACH CERTIFICATE SHALL IN ALL RESPECTS BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK, INCLUDING ALL MATTERS OF
CONSTRUCTION, VALIDITY AND PERFORMANCE. This Indenture may be executed by the
parties hereto in separate counterparts, each of which when so executed and
delivered shall be an original, but all such counterparts shall together
constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed this 28th day of May, 1997 by their respective officers
thereunto duly authorized and acknowledge that this Indenture has been made
and delivered in the City of New York, and this Indenture shall be effective
only upon such execution and delivery.
WILMINGTON TRUST COMPANY,
not in its individual capacity,
except as specifically set forth herein
but solely as Owner Trustee
By______________________________________
Name: Donald G. MacKelcan
Title: Assistant Vice President
FIRST SECURITY BANK, NATIONAL ASSOCIATION,
not in its individual capacity,
but solely as Indenture Trustee
By______________________________________
Name: Greg A. Hawley
Title: Vice President
Exhibit A
to
Trust Indenture and Security Agreement
Indenture and Security Agreement Supplement
Indenture and Security Agreement Supplement (Federal Express
Corporation Trust No. N587FE) dated ________, ____, of WILMINGTON TRUST
COMPANY, a Delaware banking corporation, not in its individual capacity but
solely as owner trustee (herein called the "Owner Trustee") under the Trust
Agreement dated as of December 1, 1996, as amended and restated as of May 1,
1997 (as at any time amended, herein called the "Trust Agreement") between
Wilmington Trust Company and the Owner Participants named therein.
W I T N E S S E T H :
WHEREAS, the Trust Agreement provides for the execution and delivery
of this Indenture and Security Agreement Supplement which shall particularly
describe the Aircraft and any Replacement Airframe or Replacement Engine
included in the property covered by the Trust Agreement.
WHEREAS, the Trust Indenture, Mortgage and Security Agreement (Federal
Express Corporation Trust No. N587FE) dated as of December 1, 1996 (herein
called the "Original Indenture") between the Owner Trustee and State Street
Bank and Trust Company, as Original Indenture Trustee (herein called the
"Original Indenture Trustee"), provides for the execution and delivery of a
supplement thereto substantially in the form hereof which shall particularly
describe the Aircraft (such term and other defined terms in the Indenture
being used herein with the same meanings) and any Replacement Airframe or
Replacement Engine included in the Trust Indenture Estate, and shall
specifically mortgage such Aircraft, Replacement Airframe or Replacement
Engine, as the case may be, to the Indenture Trustee.
WHEREAS, the Original Indenture dated as of December 1, 1996 which
together with the Indenture and Security Agreement Supplement No. 1 (Federal
Express Corporation Trust No. N587FE) dated December 13, 1996 (the Original
Indenture being attached to and made a part of such Indenture and Security
Agreement Supplement and filed therewith) have been duly recorded pursuant to
Subtitle VII of Title 49 of the United States Code on [________________] as
one document and have been assigned Conveyance No. [______].
WHEREAS, the Original Indenture, as amended and restated by the Trust
Indenture and Security Agreement dated as of May 1, 1997 (herein called the
"Indenture"), was duly recorded pursuant to Subtitle VII of Title 49 of the
United States Code on ______________ and assigned Conveyance No. ________;
NOW, THEREFORE, this Supplement witnesseth, that, to secure the prompt
payment of the principal of and Make-Whole Premium, if any, and interest on,
and all other amounts due with respect to, all Outstanding Certificates under
the Indenture and all other amounts due hereunder and the performance and
observance by the Owner Trustee of all the agreements, covenants and
provisions for the benefit of the Holders contained in the Indenture, in the
Lease, in the Participation Agreement and the Certificates, and the prompt
payment of any and all amounts from time to time owing under the Participation
Agreement by the Owner Trustee, the Owner Participants or the Lessee to the
Holders and for the uses and purposes and subject to the terms and provisions
of the Indenture and the Certificates, and in consideration of the premises
and of the covenants contained in the Indenture, and of the purchase of the
Certificates by the Holders, and of the sum of $1 paid to the Owner Trustee by
the Indenture Trustee at or before the delivery of the Indenture, the receipt
of which is hereby acknowledged, the Owner Trustee has granted, bargained,
sold, assigned, transferred, conveyed, mortgaged, pledged, granted a security
interest in, and confirmed, and does hereby grant, bargain, sell, assign,
transfer, convey, mortgage, pledge, grant a security interest in, and confirm,
unto the Indenture Trustee, its successors and assigns, in trust for the equal
and ratable security and benefit of the Holders, in the trust created by the
Indenture, and subject to all of the terms, conditions, provisions and
limitations set forth in the Indenture, a first priority security interest in
and mortgage lien on all estate, right, title and interest of the Owner Trustee
in, to and under the following described property:
Airframe
One (1) Airframe identified as follows:
FAA Manufacturer's
Registration Serial
Manufacturer Model Number Number
- ------------ ----- ------------ --------------
together with all appliances, equipment, instruments and accessories
(including, without limitation, radio and radar) from time to time belonging
thereto, owned by the Owner Trustee and installed in or appurtenant to said
aircraft.
AIRCRAFT ENGINES
Two (2) aircraft engines, each such engine having 750 or more rated takeoff
horsepower or the equivalent thereof, identified as follows:
Manufacturer's
Manufacturer Model Serial Number
- ------------ ----- --------------
together with all equipment and accessories belonging thereto, by whomsoever
manufactured, owned by the Owner Trustee and installed in or appurtenant to
said aircraft engines.
Together with all substitutions, replacements and renewals of the
property described above, and all property which shall hereafter become
physically attached to or incorporated in the property described above,
whether the same are now owned by the Owner Trustee or shall hereafter be
acquired by it.
As further security for the obligations referred to above and secured
by the Indenture and hereby, the Owner Trustee has granted, bargained, sold,
assigned, transferred, conveyed, mortgaged, pledged and confirmed, and does
hereby grant, bargain, sell, assign, transfer, convey, mortgage, pledge and
confirm, unto the Indenture Trustee, its successors and assigns, for the
security and benefit of the Holders, in the trust created by the Indenture,
and subject to all of the terms, conditions, provisions and limitations set
forth in the Indenture, all of the estate, right, title and interest of the
Owner Trustee in, to and under the Lease Supplement (other than Excepted
Payments, if any) covering the property described above.
TO HAVE AND TO HOLD all and singular the aforesaid property unto the
Indenture Trustee, its successors and assigns, for the benefit and security of
the Holders for the uses and purposes and subject to the terms and provisions
set forth in the Indenture.
This Supplement shall be construed as supplemental to the Indenture
and shall form a part thereof, and the Indenture is hereby incorporated by
reference herein and is hereby ratified, approved and confirmed.
This Supplement is being delivered in the State of New York.
AND, FURTHER, the Owner Trustee hereby acknowledges that the
Aircraft/Engines referred to in this Supplement and the aforesaid Lease
Supplement has been delivered to the Owner Trustee and is included in the
property of the Owner Trustee and covered by all the terms and conditions of
the Trust Agreement, subject to the Lien of the Indenture.
IN WITNESS WHEREOF, the Owner Trustee has caused this Supplement to
be duly executed as of the date first written above by one of its officers
thereunto duly authorized.
WILMINGTON TRUST COMPANY,
not in its individual capacity,
except as specifically set forth herein
but solely as Owner Trustee
By______________________________________
Name: Donald G. MacKelcan
Title: Assistant Vice President
Exhibit B
to
Trust Indenture and Security Agreement
[Form of Certificate]
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY
NOT BE SOLD OR OFFERED FOR SALE IN CONTRAVENTION OF SAID ACT
No. ______ $_____________
EQUIPMENT TRUST CERTIFICATE
(Federal Express Corporation Trust No. N587FE)
WILMINGTON TRUST COMPANY
not in its individual capacity but solely as
OWNER TRUSTEE UNDER TRUST AGREEMENT
(Federal Express Corporation Trust No. N587FE)
dated as of December 1, 1996
as amended and restated as of May 1, 1997
Interest Rate Maturity
SERIES ___
Wilmington Trust Company, a Delaware banking corporation, not in its
individual capacity but solely as Owner Trustee (herein in such capacity
called the "Owner Trustee") under that certain Trust Agreement (Federal
Express Corporation Trust No. N587FE) dated as of December 1, 1996 as amended
and restated as of May 1, 1997, among the Owner Participants named therein and
Wilmington Trust Company (herein as such Trust Agreement may be amended or
supplemented from time to time called the "Trust Agreement"), hereby promises
to pay to FIRST SECURITY BANK, NATIONAL ASSOCIATION, as Subordination Agent,
or its registered assigns, the principal sum of ________________
_______________ Dollars, payable as set forth below for the Maturity
specified above, in such coin or currency of the United States of America as
at the time of payment shall be legal tender for the payment of public and
private debts, and to pay interest on the principal outstanding from time to
time, semiannually on each January 15 and July 15, on said principal sum in
like coin or currency at the rate per annum set forth above from the January
15 or the July 15, as the case may be, next preceding the date of this
Certificate to which interest on the Certificates has been paid or duly
provided for, unless the date hereof is a date to which interest on the
Certificates has been paid or duly provided for, in which case from the date
of this Certificate. Notwithstanding the foregoing, if the date hereof is
after any January 15 or July 15 and before the following January 15 or July
15, as the case may be, this Certificate shall bear interest from such January
15 or July 15; provided that, if the Owner Trustee shall default in the
payment of interest due on such January 15 or July 15, then this Certificate
shall bear interest from the next preceding January 15 or July 15 to which
interest on this Certificate has been paid or duly provided for. The interest
so payable on any January 15 or July 15 will, except as otherwise provided in
the Indenture referred to below, be paid to the person in whose name this
Certificate is registered at the close of business on the January 15 or July
15 preceding such January 15 or July 15, whether or not such day is a Business
Day.
This Certificate shall bear interest at the Past Due Rate on any
principal hereof and on any other amount payable hereunder or under the
Indenture which shall not be paid in full when due (whether at stated
maturity, by acceleration, by mandatory prepayment or otherwise), for the
period from and including the date thereof to but excluding the date the same
is paid in full, payable from time to time on demand of the Indenture Trustee.
Principal and interest and other amounts due hereunder shall be
payable at the office or agency of First Security Bank, National Association
(the "Indenture Trustee") maintained for such purpose in immediately available
funds prior to 10:30 A.M. (New York time) on the due date thereof and the
Indenture Trustee shall remit all such amounts received by it to the Holders
at such account or accounts at such financial institution or institutions as
the Holders shall have designated to the Indenture Trustee in writing, in
immediately available funds, such payment to be made if the payment was
received prior to 10:30 A.M. New York time by the Indenture Trustee on any
Business Day, by 12:00 noon New York time on such Business Day; otherwise, the
Indenture Trustee shall make payment promptly, but not later than 11:00 A.M.
New York time on the next succeeding Business Day; provided that, at the
option of the Indenture Trustee or its Paying Agent, interest may be paid by
mailing a check therefor payable to or upon the written order of the
registered holder entitled thereto at his last address as it appears on the
Register. If any amount payable under this Certificate, or under the
Indenture, falls due on a day that is not a Business Day, then such sum shall
be payable on the next succeeding Business Day, without (provided that payment
is made on such next succeeding Business Day) additional interest thereon for
the period of such extension.
Wilmington Trust Company and First Security Bank, National
Association are not acting individually hereunder, but solely as Owner Trustee
and Indenture Trustee, respectively.
Any Person, other than the Subordination Agent, who is acquiring the
Certificates will be deemed to represent and warrant that (i) no assets of an
employee benefit plan subject to Title I of ERISA or an individual retirement
account or plan subject to Section 4975 of the Code, or any trust established
under any such plan or account, have been used to acquire or hold any of the
Certificates, or (ii) that one or more administrative or statutory exemptions
from the prohibited transaction rules under Section 406 of ERISA and Section
4975 of the Code applies to its purchase and holding of the Certificates such
that its purchase and holding of the Certificates will not result in a
non-exempt prohibited transaction under Section 406 of ERISA and Section 4975
of the Code.
This Certificate is one of a duly authorized issue of Certificates
issued and to be issued under the Trust Indenture and Security Agreement
(Federal Express Corporation Trust No. N587FE) dated as of December 1, 1996 as
amended and restated as of May 1, 1997 (herein as amended, supplemented or
modified from time to time called the "Indenture") between the Owner Trustee
and the Indenture Trustee, designated as Equipment Trust Certificates (Federal
Express Corporation Trust No. N587FE) limited in aggregate initial principal
amount to $61,754,000 consisting of the following aggregate principal amounts
of Certificates with the interest rates per annum and Maturities shown:
Initial
Aggregate
Principal
Series Maturity Amount Interest Rate
- ------ ---------------- ----------- -------------
A January 15, 2015 $37,512,000 7.50%
B January 15, 2010 $13,796,000 7.52%
C January 15, 2007 $10,446,000 7.65%
Reference is made to the Indenture and all supplements and amendments
thereto (a copy of which is on file with the Indenture Trustee at its
principal corporate trust office) for a more complete statement of the terms
and provisions thereof, including a statement of the properties conveyed,
pledged and assigned thereby, the nature and extent of the security, the
respective rights of the Owner Trustee, the Owner Participants, the Lessee,
the Indenture Trustee and the Holders, and the terms upon which the
Certificates are, and are to be, executed and delivered, to all of which terms
and conditions in the Indenture each Holder hereof agrees by its acceptance of
this Certificate.
Capitalized terms not otherwise defined herein shall have the
meanings given to them in the Indenture.
The principal amounts of the Certificates are payable as follows. The
Certificates are subject to redemption in part, pro rata (based on the face
amount thereof), in each case through mandatory sinking fund redemptions
providing for the redemption on the Sinking Fund Redemption Dates of the
aggregate principal amounts set forth below, together with interest accrued
thereon to the applicable Sinking Fund Redemption Date, but without Make-Whole
Premium.
Series A Series B Series C
Certificates with Certificates with Certificates with
Sinking Fund a Maturity of a Maturity of a Maturity of
Redemption Date January 15, 2015 January 15, 2010 January 15, 2007
- ---------------- ----------------- ----------------- -----------------
January 15, 1998 724,290 786 0
July 15, 1998 468 0 0
January 15, 1999 750,760 281,534 544,208
July 15, 1999 0 0 0
January 15, 2000 750,760 281,534 599,356
July 15, 2000 0 0 0
January 15, 2001 750,760 281,534 728,258
July 15, 2001 0 0 0
January 15, 2002 750,760 281,534 861,394
July 15, 2002 0 0 0
January 15, 2003 750,760 281,534 1,005,202
July 15, 2003 0 0 0
January 15, 2004 750,760 281,534 1,160,006
July 15, 2004 0 0 0
January 15, 2005 0 0 1,967,524
July 15, 2005 750,762 281,540 0
January 15, 2006 750,760 281,536 3,279,410
July 15, 2006 0 0 0
January 15, 2007 750,760 1,684,506 300,642
July 15, 2007 0 0 0
January 15, 2008 750,760 2,533,230 0
July 15, 2008 0 0 0
January 15, 2009 750,760 4,135,478 0
July 15, 2009 0 0 0
January 15, 2010 2,078,026 3,189,720 0
July 15, 2010 0 0 0
January 15, 2011 5,678,550 0 0
July 15, 2011 0 0 0
January 15, 2012 6,121,034 0 0
July 15, 2012 0 0 0
January 15, 2013 6,597,998 0 0
July 15, 2013 0 0 0
January 15, 2014 7,112,128 0 0
July 15, 2014 0 0 0
January 15, 2015 941,144 0 0
Except as expressly provided in the Indenture, all payments of
principal, Make-Whole Premium, if any, and interest and other amounts to be
made to the Holder hereof by or at the behest of the Owner Trustee hereunder
or under the Indenture shall be made only from the income and proceeds from
the Lessor's Estate to the extent included in the Trust Indenture Estate and
only to the extent that the Owner Trustee shall have sufficient income or
proceeds from the Lessor's Estate to the extent included in the Trust
Indenture Estate to enable the Indenture Trustee to make such distributions in
accordance with the terms of the Indenture; provided that under the Lease, the
Lessee is obligated to pay or cause to be paid, to the extent such payments
are not required to be made from the assets subject to the Lien of this
Indenture or the income and proceeds received by the Indenture Trustee
therefrom, any net loss arising from the investment of funds held by the
Indenture Trustee which but for an Event of Default would be payable to
Lessee, and each Holder hereof, by its acceptance of this Certificate, agrees
that it will (except as aforesaid) look solely to the income and proceeds from
the Trust Indenture Estate to the extent available for distribution to the
Holder hereof as provided above and that neither the Owner Participants, the
Owner Trustee, Wilmington Trust Company nor the Indenture Trustee is
personally liable to the Holder hereof for any amounts payable or any
liability under this Certificate or under the Indenture, except as expressly
provided in the Indenture, in the case of Wilmington Trust Company, the Owner
Trustee and the Indenture Trustee.
The Certificates are subject to prepayment in the following
circumstances at the price determined as set forth below.
(i) If an Event of Loss occurs with respect to the Airframe or with
respect to the Airframe and the Engines or engines then installed on the
Airframe (unless pursuant to Section 11.03 of the Lease and Section 9.08 of
the Indenture replacement equipment is substituted therefor).
(ii) If the Lessee, pursuant to Section 4.02(a) of the Lease, gives
notice of purchase of the Aircraft (and the Lessee shall not have revoked
such notice or effected an assumption of the Certificates as provided in
Section 2.12 of the Indenture).
(iii) If the Owner Participants or the Owner Trustee on behalf of the
Owner Participants gives notice of prepayment to the Indenture Trustee
pursuant to Section 8.02 of the Indenture.
(iv) If the Lessee, pursuant to Section 10.01 of the Lease, gives
notice of a voluntary termination for obsolescence or surplus, but subject
to Section 6.02(c) of Indenture.
(v) Pursuant to Section 15.01 of the Participation Agreement in
connection with a Refinancing of the Certificates.
(vi) At the option of the Owner Trustee with the prior written
consent of the Lessee upon not less than 25 days' prior written notice.
In the case of a prepayment of the Certificates pursuant to clauses
(ii), (iv) and (v) above, the Lessee, in accordance with and subject to the
terms (including timing of notice) of Section 4.02(a) or 10.01 of the Lease or
Article 15 of the Participation Agreement, as the case may be, shall give
irrevocable (subject to Section 6.02(c) of the Indenture) written notice to
the Owner Trustee and the Indenture Trustee and to the Holders of all of the
Certificates specifying the Business Day on which the Owner Trustee is
directed to prepay the Certificates. In the case of a prepayment pursuant to
clause (i) above, the Certificates shall be prepaid on the Loss Payment Date
(as defined in Section 11.02 of the Lease). In the case of a prepayment
pursuant to clause (iii) above, the Certificates shall be prepaid on the date
designated in the notice of prepayment required by Section 8.02 of the
Indenture. In the case of a prepayment of the Certificates pursuant to clauses
(ii) and (iv) above, the Certificates shall be prepaid in full on the
Termination Date. In the case of a prepayment of the Certificates pursuant to
clause (v) above, the Certificates shall be prepaid on the effective date of
the Refinancing. In the case of a prepayment of the Certificates pursuant to
(vi) above, the Certificates shall be prepaid on the date designated in the
notice referred to therein. The day on which the Certificates are to be
prepaid is herein referred to as the "Prepayment Date". On or prior to the
Prepayment Date, immediately available funds shall be deposited with the
Indenture Trustee in an amount in respect of the Certificates equal to:
(1) (i) if such prepayment is made under any provision of Section
6.02 of the Indenture on or after the applicable Premium Termination Date,
or (ii) if such prepayment is made prior to the applicable Premium
Termination Date pursuant to clause (i) or (iii) above (if clause (i) of
the first sentence of Section 8.02(a) of the Indenture is applicable), the
sum of (A) the aggregate principal amount of such Certificates then
Outstanding, (B) accrued interest on the Certificates to the Prepayment
Date and (C) all other aggregate sums due the Indenture Trustee under the
Indenture or under the Participation Agreement or the Lease, but excluding
any Make-Whole Premium or other premium or penalty, or
(2) if such prepayment is made prior to the applicable Premium
Termination Date pursuant to clause (ii), (iii) (if clause (ii) of the
first sentence of Section 8.02(a) of the Indenture is applicable), (iv),
(v) or (vi) above, the sum of the amounts specified in clauses (A), (B) and
(C) of the preceding clause (1) plus any Make-Whole Premium payable in
respect of all Certificates with respect to which the Premium Termination
Date therefor has not occurred
(the aggregate amount required to be paid pursuant to this sentence being
herein referred to as the "Prepayment Price").
If, in accordance with and subject to the satisfaction of the
conditions set forth in Section 7.11 of the Participation Agreement, the
Lessee shall assume all of the obligations of the Owner Trustee hereunder,
under the Certificates and all other Operative Agreements, the Owner
Participants and the Owner Trustee shall (except for prior acts) be released
and discharged from any further obligations hereunder and under the
Certificates and all other Operative Agreements (except any obligations that
have accrued prior to such assumption).
If an Indenture Event of Default under the Indenture shall occur and
be continuing, the principal of the Certificates may be declared due and
payable in the manner and with the effect provided in the Indenture. The
Indenture provides that in certain events such declaration and its
consequences may be waived the Majority in Interest of Holders. Any such
consent or waiver shall be conclusive and binding upon the Holder of this
Certificate and upon all future Holders and owners of this Certificate and any
Certificate that may be issued in exchange or substitution therefor, whether
or not any notation thereof is made upon this Certificate or such other
Certificates. Moreover, if, and only if, an Event of Default shall occur, the
Indenture Trustee may declare the Lease to be in default, and may, to the
exclusion of the Owner Trustee, exercise one or more of the remedies of the
Owner Trustee provided in the Lease.
The Owner Trustee or the Owner Participants may cure a default by the
Lessee under the Lease arising from the failure of the Lessee to make any
Basic Rent payments under the Lease, but the Owner Trustee and the Owner
Participants, collectively, may not cure more than three consecutive such
failures or more than six such failures in total. The Owner Trustee or the
Owner Participants may cure any other default by the Lessee in the performance
of its obligations under the Lease.
(A) If an Event of Default shall have occurred and be continuing for
more than 180 days or the Certificates shall have been accelerated or (B) an
Event of Default shall have occurred and be continuing for not more than 180
days and the Certificates shall not have been accelerated, the Owner
Participants (or the Owner Trustee on behalf of the Owner Participants) may:
(1) direct the Owner Trustee to cause the prepayment of all the
Outstanding Certificates by notifying the Indenture Trustee of such
election and depositing the sum of amounts contemplated by paragraph
"first" under Section 5.03 of the Indenture and the aggregate
Prepayment Price of all such Certificates with the Indenture Trustee
for distribution to the Holders; or
(2) purchase all of the Outstanding Certificates by paying to the
Indenture Trustee an amount equal to the aggregate unpaid principal
amount of all Outstanding Certificates, plus accrued interest on such
amount to the date of purchase and any Make-Whole Premium applicable
to each Outstanding Certificate, if such purchase occurs prior to the
Premium Termination Date for such Outstanding Certificate (in the
case of a purchase pursuant to clause (ii) of the first sentence of
Section 8.02(a) of the Indenture) plus all other sums due any Holder
or the Indenture Trustee under the Indenture, the Participation
Agreement or the Lease.
The right of the Holder hereof to institute an action for any remedy
under the Indenture is subject to certain restrictions specified in the
Indenture, except that the right of the Holder of this Certificate to receive
payment of the principal of and interest and Make-Whole Premium, if any, on
this Certificate on or after the respective due dates, or to institute suit
for the enforcement of any such payment, shall not be impaired or affected
without the consent of such Holder.
The Certificates are issuable only as registered Certificates without
coupons in denominations of $1,000 and integral multiples thereof. So long as
any of the Certificates remain Outstanding, the Indenture Trustee will
maintain an office or agency where the Certificates may be presented for
payment and a facility or agency in New York, New York where the Certificates
may be presented for registration of transfer and for exchange as provided in
the Indenture. As provided in the Indenture and subject to certain
limitations therein, this Certificate is transferable, and upon surrender of
this Certificate for registration of transfer at the principal corporate trust
office of the Indenture Trustee, or at the office or agency maintained for such
purposes, duly endorsed by, or accompanied by a written instrument of transfer
in form satisfactory to the Owner Trustee and the Indenture Trustee duly
executed by, the Holder or his attorney duly authorized in writing, one or
more new Certificates of the same Series and Maturity and interest rate and of
authorized denominations and for the same aggregate principal amount will be
issued to the designated transferee or transferees.
As provided in the Indenture and subject to certain limitations
therein, the Certificates are exchangeable for an equal aggregate principal
amount of Certificates of the same Series and Maturity and interest rate and
of authorized denominations, as requested by the Holder surrendering the same,
upon presentation thereof for such purpose at the principal corporate trust
office of the Indenture Trustee, or at an office or agency maintained for such
purpose.
No service charge shall be levied for any such registration of
transfer or exchange, but the Indenture Trustee may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection
therewith.
Prior to the due presentment for registration of transfer of this
Certificate, the Owner Trustee, the Indenture Trustee, any agent of the Owner
Trustee or the Indenture Trustee, the Paying Agent, if any, the Registrar and
the Lessee shall deem and treat the person in whose name this Certificate is
registered as the absolute owner hereof for all purposes whether or not this
Certificate is overdue, and neither the Owner Trustee, the Indenture Trustee
(nor any agent of the Owner Trustee or the Indenture Trustee), nor the Paying
Agent, if any, the Registrar nor the Lessee shall be affected by notice to the
contrary.
The indebtedness evidenced by this Certificate is, to the extent and
in the manner provided in the Indenture, subordinate and subject in right of
payment to the prior payment in full of the Secured Obligations (as defined in
the Indenture) in respect of [Series A Certificate](1), [Series A and Series B
Certificates](2) and this Certificate is issued subject to such provisions.
The Holder of this Certificate, by accepting the same, (a) agrees to and shall
be bound by such provisions, (b) authorizes and directs the Indenture Trustee
on such Holder's behalf to take such action as may be necessary or appropriate
to effectuate the subordination as provided in the Indenture and (c) appoints
the Indenture Trustee such Holder's attorney-in-fact for such purpose.(*)
As provided in the Indenture, the Indenture and the Certificates
shall be construed in accordance with and governed by the laws of the State of
New York.
This Certificate shall not be secured by or be entitled to any
benefit under the Indenture or be valid or obligatory for any purpose unless
authenticated by the Indenture Trustee as evidenced by the manual signature of
one of its authorized officers on the certificate below.
IN WITNESS WHEREOF, the Owner Trustee has caused this Equipment Trust
Certificate (Federal Express Corporation Trust No. N587FE) to be duly executed
in its corporate name by its officer thereunto duly authorized.
Dated: May ___, 1997 WILMINGTON TRUST COMPANY,
not in its individual capacity,
but solely as Owner Trustee
By ____________________________________
Name: Donald G. MacKelcan
Title: Assistant Vice President
- ----------
(1) To be inserted in the case of a Series B Certificate.
(2) To be inserted in the case of a Series C Certificate.
(*) To be inserted for each Certificate other than any Series A
Certificate.
[FORM OF INDENTURE TRUSTEE'S CERTIFICATE OF AUTHENTICATION]
This is one of the Equipment Trust Certificates (Federal Express
Corporation Trust No. N587FE) referred to in the within mentioned Indenture.
Dated: May ___, 1997 FIRST SECURITY BANK, NATIONAL ASSOCIATION,
not in its individual capacity,
but solely as Indenture Trustee
By ____________________________________
Name: Greg A. Hawley
Title: Vice President
SCHEDULE I
[Reserved]
SCHEDULE II
DEFINITIONS
(FEDERAL EXPRESS CORPORATION TRUST NO. N587FE)
GENERAL PROVISIONS
The following terms shall have the following meanings for all
purposes of the Operative Agreements (other than the Pass Through Agreement,
the Series Supplements, the Intercreditor Agreement and the Liquidity
Facilities) referred to below, unless otherwise defined in an Operative
Agreement or the context thereof shall otherwise require. In the case of any
conflict between the provisions of this Schedule and the provisions of any
Operative Agreement, the provisions of such Operative Agreement shall control
the construction of such Operative Agreement.
Unless the context otherwise requires, (i) references to agreements
shall be deemed to mean and include such agreements as amended and
supplemented from time to time, and (ii) references to parties to agreements
shall be deemed to include the successors and permitted assigns of such
parties.
DEFINED TERMS:
Additional Insured. As defined in Article 13 of the Lease.
Aeronautics Authority. As appropriate, the Federal Aviation
Administration and/or the Administrator of the Federal Aviation
Administration, any successor to the former United States Civil Aeronautics
Board, or any Person, governmental department, bureau, commission or agency
located in the United States succeeding to the functions of any of the
foregoing.
Affiliate. With respect to any Person, any other Person directly or
indirectly controlling, controlled by or under common control with such
Person. For the purposes of this definition, "control" (including "controlled
by" and "under common control with") shall mean the power, directly or
indirectly, to direct or cause the direction of the management and policies of
such Person whether through the ownership of voting securities or by contract
or otherwise. In no event shall the Owner Trustee or the Lessor be deemed an
Affiliate of an Owner Participant and WTC shall not be deemed to be an
Affiliate of any of the Owner Trustee, the Lessor or such Owner Participant.
Neither Owner Participant, by virtue of its status or the agreements in
respect thereof, shall be deemed an "Affiliate" of the other Owner
Participant.
After-Tax Basis. A basis such that any payment received or deemed to
have been received by a Person shall be supplemented by a further payment to
such Person so that the sum of the two payments, after deduction of all Taxes
resulting from the receipt or accrual of such payments, shall be equal to the
payment received or deemed to have been received. In the case of amounts
payable to the Lessor, the Owner Participants, or any corporate Affiliate of
an Owner Participant, it shall be presumed that such Person is at all times
subject to Federal income tax at the maximum marginal rate generally
applicable to corporations from time to time and actual state, local and
foreign income taxes.
Agent. Morgan Guaranty Trust Company of New York and its successors
and permitted assigns as Agent for the Original Loan Participant pursuant to
Article 16 of the Original Participation Agreement.
Air Carrier. Any U.S. Air Carrier and any "foreign air carrier" (as
defined in the Transportation Code) as to which there is in force a permit
granted under Section 41302 of the Transportation Code.
Aircraft. The Airframe (or any permitted substitute airframe)
together with three Engines (whether each an initial Engine or a Replacement
Engine) whether or not any of such initial or Replacement Engines may from
time to time be installed on such Airframe or may be installed on any other
airframe or on any other aircraft, including any aircraft substituted pursuant
to Section 11.03 of the Lease.
Airframe. The McDonnell Douglas MD-11F aircraft (excluding the
Engines or engines from time to time installed thereon) leased by the Lessor
to the Lessee pursuant to the Lease and the initial Lease Supplement and
having the United States FAA Registration Number initially and manufacturer's
serial number specified in the initial Lease Supplement, including (i) all
Parts in respect thereof and (ii) any Replacement Airframe which may be
substituted pursuant to Section 11.03 of the Lease.
Amendment No. 1 to the Original Tax Indemnity Agreement. Amendment
No. 1 to the Original Tax Indemnity Agreement (Federal Express Corporation
Trust No. N587FE), dated as of May 1, 1997 among the Lessee, the Owner
Participants and the Owner Trustee.
Ancillary Agreement. Any written agreement of the Lessee to which
the Lessor is a party or to which the Lessor has consented in writing
entered into on the Delivery Date or the Refunding Date or any date
thereafter in connection with the transactions contemplated by the
Operative Agreements, as such agreement may be amended and supplemented
from time to time with the consent of the Lessor and delivered to the Owner
Trustee, the Indenture Trustee, the Pass Through Trustee, the Subordination
Agent, each Liquidity Provider and the Owner Participants.
Ancillary Agreement I. The Ancillary Agreement I (Federal Express
Corporation Trust No. N587FE), dated the Delivery Date, as amended and
restated as of the Refunding Date, among the Lessee, the Owner Trustee, not in
its individual capacity, but solely as Owner Trustee, the Owner Participants
and the Indenture Trustee not in its individual capacity, but solely as
Indenture Trustee, as originally executed or as amended, modified or
supplemented with the consent of all the parties thereto.
Ancillary Agreement II. The Ancillary Agreement II (Federal Express
Corporation Trust No. N587FE), dated the Refunding Date, among the Lessee, the
Owner Trustee, not in its individual capacity, but solely as Owner Trustee,
the Owner Participants and the Indenture Trustee not in its individual
capacity, but solely as Indenture Trustee, as originally executed or as
amended, modified or supplemented with the consent of all the parties thereto.
Appraisal. The report prepared by BK Associates, Inc. and delivered
to the Owner Participants on the Delivery Date pursuant to Section 4.01(n) of
the Original Participation Agreement.
Average Life Date. For any Certificate, the date which follows the
prepayment date by a period equal to the Remaining Weighted Average Life of
such Certificate.
Bankruptcy Code. The Federal Bankruptcy Code of 1978, as amended, and
any successor thereto.
Bankruptcy Default. An event specified in Section 16.01(e), (f) or
(g) of the Lease which either does or, with the giving of notice or lapse of
time or both, would constitute an Event of Default.
Basic Rent. The aggregate periodic rent payable for the Aircraft
throughout the Basic Term pursuant to Section 3.02 of the Lease, adjusted
pursuant to Article 3 of the Lease.
Basic Term. The period commencing at the beginning of the day on the
Delivery Date and ending at the end of the day on June 13, 2017, or such
earlier date on which the Lease shall be terminated as provided therein.
Beneficial Interest. The interest of the Owner Participants under
the Trust Agreement.
Bills of Sale. Collectively, the FAA Bill of Sale and the Warranty
Bill of Sale.
Breakage Costs. Has the meaning specified in Schedule II to the
Original Participation Agreement.
Business Day. Any day on which commercial banks are not
authorized or required to close in New York, New York, Memphis, Tennessee
and the city in the United States in which the office or agency is
maintained by the Pass Through Trustee for the payment of the Pass Through
Certificates, and after the Lien of the Indenture is discharged,
Wilmington, Delaware.
Certificates. The Equipment Trust Certificates (Federal Express
Corporation Trust No. N587FE), issued by the Owner Trustee pursuant to the
Indenture and any certificate issued in exchange therefor or replacement
thereof pursuant to the Indenture.
Change in Tax Rate. Any amendment, modification, deletion, addition,
or change to the Code which is enacted into law after the Delivery Date which
changes the highest marginal statutory rate of Federal income tax applicable
to an Owner Participant (other than a change which is in the nature of a
minimum tax).
Citizen of the United States. A citizen of the United States as
defined in Section 40102(a)(15) of the Transportation Code, or any analogous
part of any successor or substituted legislation or regulation at the time in
effect.
Class A Liquidity Provider. Has the meaning specified in Section
1.01 of the Intercreditor Agreement.
Class B Liquidity Provider. Has the meaning specified in Section
1.01 of the Intercreditor Agreement.
Closings. The closing with respect to the acquisition of the Pass
Through Certificates by the Underwriters and the closing with respect to the
refunding of the Original Loan Certificates.
Code. Except as otherwise provided, the Internal Revenue Code of
1986, as amended from time to time.
Corporate Trust Administration. The Corporate Trust Administration
office of the Owner Trustee located at 1100 North Market Street, Rodney Square
North, Wilmington, Delaware 19890-0001, Attention: Corporation Trust
Administration, or such other office at which the Owner Trustee's corporate
trust business shall be administered which the Owner Trustee shall have
specified by notice in writing to the Lessee, the Owner Participants and the
Indenture Trustee.
Corporate Trust Department. The Corporate Trust Department office of
the Indenture Trustee located at 79 South Main Street, Salt Lake City, Utah
84111, Attention: Corporate Trust Department, or such other office at which
the Indenture Trustee's corporate trust business shall be administered which
the Indenture Trustee shall have specified by notice in writing to the Lessee,
the Owner Participants and the Owner Trustee.
CRAF Program. Has the meaning specified in Section 7.01(f) of the
Lease.
Debt Rate. The weighted average (based on Outstanding principal
amount) rate of interest on the Certificates issued pursuant to the Indenture.
Default. Any event or condition which, with the lapse of time or the
giving of notice, or both, would constitute an Event of Default.
Delivery Date. December 13, 1996.
EBO Date. Has the meaning specified in Section 4.02(a)(F) of the
Lease.
EBO Price. Has the meaning specified in Section 4.02(a)(F) of the
Lease.
Engine. Each of the three General Electric CF6-80C2-D1F engines
listed by its manufacturer's serial number in the initial Lease Supplement and
leased pursuant to the Lease, whether or not from time to time installed on
the Airframe or installed on any other airframe or on any other aircraft, and
any Replacement Engine which may from time to time be substituted for an
Engine pursuant to Section 7.02(a)(vii), 10.03, 11.03, 11.04 or 12.02 of the
Lease, together with all Parts related thereto. Except as otherwise provided,
at such time as a Replacement Engine shall be so substituted and the Engine
for which the substitution is made shall be released from the Lien of the
Indenture, such replaced Engine shall cease to be an "Engine" under the Lease.
The term "Engines" means, as of any date of determination, all Engines then
leased to the Lessee pursuant to the Lease.
Engine Consent. The Engine Consent dated as of December 1, 1996,
executed by the Engine Manufacturer.
Engine Manufacturer. General Electric Company, a New York
corporation.
Engine Warranty Assignment. The Engine Warranty Assignment (Federal
Express Corporation Trust No. N587FE), dated as of December 1, 1996
between the Lessor and the Lessee.
Equity Percentage. For any Owner Participant, the fractional
interest, expressed as a percentage, of such Owner Participant's interest in
the Beneficial Interest, calculated by dividing the Commitment of such Owner
Participant (or of such Owner Participant's predecessor in interest) paid on
the Delivery Date by the aggregate of the Commitments paid by all of the Owner
Participants on the Delivery Date. As to Comerica Leasing Corporation
(formerly known as CMCA Lease, Inc.), such Equity Percentage shall be 50% and
as to Norwest Bank Minnesota, National Association, such Equity Percentage
shall be 50%.
ERISA. The Employee Retirement Income Security Act of 1974, as
amended.
ERISA Plan. An employee benefit plan subject to Title I of ERISA, or
an individual retirement account or plan subject to Section 4975 of the Code.
Estimated Expense Amount. Has the meaning specified in Section
10.01(a) of the Participation Agreement.
Event of Default. Each of the events specified in Article 16 of the
Lease.
Event of Loss. Any of the following events with respect to the
Aircraft, the Airframe or any Engine: (i) loss of such property or its use (A)
due to theft or disappearance for a period in excess of 30 days (or such
longer period not to exceed 60 days from the end of such 30 day period if and
so long as the location of such property is known and the Lessee is pursuing
the recovery thereof) or to the end of the Term, if less, unless such event
constitutes an Event of Loss under clause (i)(B) or clause (ii) below, or (B)
due to the destruction, damage beyond economic repair or rendition of such
property permanently unfit for normal use by Lessee for any reason whatsoever;
(ii) any damage to such property which results in an insurance settlement with
respect to such property on the basis of a total loss, or constructive or
compromised total loss; (iii) (1) condemnation, confiscation or seizure of, or
requisition of title to such property by the Government, any foreign
government or purported government or any agency or instrumentality thereof,
or (2) condemnation, confiscation, or seizure of, or requisition or taking of,
use of such property (A) by a foreign government, or instrumentality or agency
of any such foreign government, or any purported government or instrumentality
or agency thereof for a period in excess of 180 days or the end of the Term,
if less, or (B) by the Government for a period extending beyond the Term
provided that no Event of Loss shall be deemed to have occurred, and the Term
shall be extended automatically for a period of up to six months beyond the
end of the Term in the event that the Aircraft or the Airframe or any Engine
is requisitioned by the Government pursuant to an activation as part of the
CRAF Program described in Section 7.02(a)(iv) of the Lease; or (iv) as a
result of any law, rule, regulation, order or other action by the Aeronautics
Authority or other governmental body having jurisdiction, the use of the
Aircraft or Airframe in the normal course of air transportation of cargo shall
have been prohibited for a period of four (4) consecutive months, unless the
Lessee, prior to the expiration of such four (4) month period, shall be
diligently carrying forward all steps which are necessary and desirable to
permit the normal use of the Aircraft or Airframe provided, however, that an
Event of Loss shall be deemed to have occurred if (x) the Lessee fails to
continue diligently carrying forward all such steps or (y) the use of the
Aircraft or the Airframe in the normal course of air transportation of cargo
shall have been prohibited for a period of an additional 8 months following
such 4 month period or (z) unless waived by the Lessor, the Term shall have
expired. The date of such Event of Loss shall be (t) the 30th day or the 90th
day, as the case may be, following loss of such property or its use due to
theft or disappearance; (u) the date of any destruction, damage beyond
economic repair or rendition of such property permanently unfit for normal
use; (v) the date of any insurance settlement on the basis of a total loss or
constructive or compromised total loss; (w) the date of any condemnation,
confiscation, seizure or requisition of title of such property; (x) the
earlier of the 181st day following condemnation, confiscation, seizure or
requisition for use of such property by a foreign government or
instrumentality or agency thereof or the end of the Term; (y) the last day of
the Term in the case of requisition for use of such property by the Government
or (z) the last day of the 4 month or additional 8 month period, referred to
in clause (iv) above or, if earlier, the last day of the Term (unless waived
by the Lessor). An Event of Loss with respect to the Aircraft shall be deemed
to have occurred if any Event of Loss occurs with respect to the Airframe.
Excepted Payments. Collectively, (i) indemnity or other payments of
expenses paid or payable by the Lessee in respect of any Owner Participant,
the Owner Trustee in its individual capacity or any of their respective
successors, permitted assigns, directors, officers, employees, servants and
agents or Affiliates, pursuant to Article 8, 9, or 10 and Section 15.01 of the
Participation Agreement or any indemnity hereafter granted to any Owner
Participant or the Owner Trustee in its individual capacity pursuant to
Section 7.01(e), Article 9 or Section 11.03(a) of the Lease or Section 15.01
of the Participation Agreement, (ii) proceeds of public liability insurance
(or government indemnities in lieu thereof) in respect of the Aircraft payable
as a result of insurance claims paid for the benefit of, or losses suffered
by, the Owner Trustee or the Indenture Trustee in their respective individual
capacities or by any Owner Participant, or their respective successors,
permitted assigns or Affiliates, (iii) proceeds of insurance maintained with
respect to the Aircraft by any Owner Participant (whether directly or through
the Owner Trustee) maintained in accordance with the provisions of but not
required under Article 13 of the Lease, (iv) all right, title and interest of
any Owner Participant in, to and under the Tax Indemnity Agreement and
payments of Supplemental Rent by the Lessee in respect of any amounts payable
under the Tax Indemnity Agreement, (v) any amounts payable by the Lessee to
any Owner Participant or the Owner Trustee in its individual capacity,
after the release thereof from the Lien of the Indenture, (vi) subject to
Section 3.05 of the Lease, payments constituting increases in Basic Rent
attributable to payments arising pursuant to Section 5 of the Tax Indemnity
Agreement, (vii) any right to demand, collect or otherwise receive and
enforce the payment of any amount described in clauses (i) through (vi)
above and (viii) any payments in respect of interest to the extent
attributable to the payments referred to in clauses (i) through (vi) above.
Expense; Expenses. Have the meaning specified in Section 9.01(a) of
the Participation Agreement.
FAA Bill of Sale. The bill of sale for the Airframe on AC Form
8050-2, or such other form as may be approved by the Aeronautics Authority,
executed by the Lessee in favor of the Owner Trustee and dated the Delivery
Date.
Fair Market Renewal Term. A term with respect to which the Lessee
has exercised its option to renew the Lease pursuant to the second paragraph
of Section 4.01(a) thereof and with respect to which the conditions set forth
in such Section 4.01(a) are met.
Fair Market Rental. An amount determined on the basis of, and equal
in amount to, the rental which would be obtained in an arm's-length
transaction between an informed and willing lessee and an informed and willing
lessor unaffiliated with such lessee, neither being under any compulsion to
lease. In such determination, except for purposes of Section 17.01 of the
Lease, it shall be assumed that the Aircraft is in at least the condition
required under the Lease in the case of return of the Aircraft pursuant to
Article 12 of the Lease and Fair Market Rental shall be determined in
accordance with the provisions of Section 4.03 of the Lease. For purposes of
Section 17.01 of the Lease, such determination shall be made on an "as is,
where is" basis by a qualified independent appraiser selected by the Lessor
and the costs and expenses of the appraisal shall be borne by the Lessee,
unless the Lessor has not obtained possession of the Aircraft pursuant to such
Section 17.01, in which case an appraiser shall not be appointed and such Fair
Market Rental shall be deemed to be zero.
Fair Market Value. An amount determined on the basis of, and equal
in amount to, the value which would be obtained in an arm's-length transaction
between an informed and willing purchaser under no compulsion to buy and an
informed and willing seller unaffiliated with such purchaser and under no
compulsion to sell, assuming the Aircraft (or other property) is unencumbered
by the Lease. In such determination, except for purposes of Section 17.01 of
the Lease, it shall be assumed that the Aircraft is in at least the condition
required under the Lease in the case of return of the Aircraft pursuant to
Article 12 of the Lease and Fair Market Value shall be determined in
accordance with the provisions of Section 4.03 of the Lease. For purposes of
Section 17.01 of the Lease, such determination shall be made on an "as is,
where is" basis by a qualified independent appraiser selected by the Lessor
and the costs and expenses of the appraisal shall be borne by the Lessee,
unless the Lessor has not obtained possession of the Aircraft free and clear
of all Liens and unencumbered by the Lease pursuant to such Section 17.01, in
which case an appraiser shall not be appointed and such Fair Market Value
shall be deemed to be zero.
Federal Aviation Administration; FAA. The United States Federal
Aviation Administration and any successor agency or agencies thereto.
Final Drawing. Has the meaning specified in Section 1.01 of the
Intercreditor Agreement.
Fixed Renewal Rent. Semi-annual payments of rent during the Fixed
Renewal Term equal to the lesser of (i) Fair Market Rental as determined as of
the commencement of such Fixed Renewal Term and (ii) the amount set forth in
Ancillary Agreement II.
Fixed Renewal Term. The term with respect to which the Lessee has
exercised its option to renew the Lease pursuant to the first paragraph of
Section 4.01(a) thereof and with respect to which the conditions set forth in
such Section 4.01(a) are met.
FSB. First Security Bank, National Association, a national banking
association.
Government. The United States of America or an agency or
instrumentality thereof the obligations of which bear the full faith and
credit of the United States of America.
GTA. The General Terms Agreement dated as of July 3, 1991 between
the Engine Manufacturer and the Lessee related to the purchase by the Lessee
of the Engines as originally executed or as modified, amended or supplemented
in accordance with the terms thereof, but only insofar as the General Terms
Agreement relates to the Engines, to the extent assigned to the Owner Trustee
pursuant to the Engine Warranty Assignment.
Holder of a Certificate; Certificate Holder; Holder. As of any
particular time, the Person in whose name a Certificate shall be registered
(but not including the holder of any Pass Through Certificate).
Indemnitee. Each of WTC, in its individual capacity and as Owner
Trustee and Lessor, the Agent (to the extent set forth in Articles 8 and 9 of
the Original Participation Agreement), the Subordination Agent, in its
individual capacity and in its capacity as Subordination Agent, each Liquidity
Provider, each Owner Participant, the Owner Participant Guarantor, the
Original Loan Participant (to the extent set forth in Articles 8 and 9 of the
Original Participation Agreement), the Original Indenture Trustee, in its
individual capacity and as trustee, the Indenture Trustee, in its individual
capacity and as trustee, and any successor (including any trustee which may
succeed to the Lessor's interest under the Lease), Affiliate, assign, officer,
director, employee, agent and servant of any of the foregoing, the Lessor's
Estate and the Trust Indenture Estate. Neither the Pass Through Trustee nor
any holder of a Pass Through Certificate shall be deemed to be an Indemnitee.
Indenture. The Trust Indenture and Security Agreement (Federal
Express Corporation Trust No. N587FE), dated as of December 1, 1996, as
amended and restated as of May 1, 1997, between the Lessor and the Indenture
Trustee, as supplemented by the Indenture and Security Agreement Supplement.
Indenture and Security Agreement Supplement. The Indenture and
Security Agreement Supplement No. 1 (Federal Express Corporation Trust No.
N587FE), dated December 13, 1996, substantially in the form of Exhibit A to
the Indenture.
Indenture Default. Any event or condition which, with the lapse of
time or the giving of notice, or both, would constitute an Indenture Event of
Default.
Indenture Documents. Has the meaning specified in the Granting
Clause of the Indenture.
Indenture Event of Default. Each of the events specified in Section
7.01 of the Indenture.
Indenture Trustee. First Security Bank, National Association, a
national banking association, not in its individual capacity but solely as
Indenture Trustee under the Indenture.
Indenture Trustee's Liens. Any Lien against, on or with respect to
the Aircraft, the Lessor's Estate or the Trust Indenture Estate or any part
thereof resulting from (i) claims against the Indenture Trustee not related to
the administration of the Trust Indenture Estate or any transactions pursuant
to the Indenture or any document included in the Trust Indenture Estate, (ii)
any act or omission of the Indenture Trustee which is not related to the
transactions contemplated by the Operative Agreements or is in violation of
any of the terms of the Operative Agreements or (iii) Taxes imposed against
the Indenture Trustee in its individual capacity against which the Lessee has
not indemnified (and is not obligated to indemnify) the Indenture Trustee in
such capacity.
Independent Appraisal. An appraisal conducted pursuant to Section
4.03 of the Lease.
Independent Investment Banker. An independent investment banking
institution of national standing appointed by the Lessee that is independent
in fact, does not have any direct financial interests, or any material
indirect financial interest, in the Lessee or any Affiliate of the Lessee, and
is not connected with the Lessee or any Affiliate of the Lessee, as an
officer, employee, promoter, underwriter, trustee, partner, director or Person
performing similar functions; provided, that if the Indenture Trustee shall
not have received written notice of such an appointment at least 10 days prior
to the Prepayment Date, "Independent Investment Banker" shall mean such an
institution appointed by the Indenture Trustee.
Intercreditor Agreement. The Intercreditor Agreement dated as of May
1, 1997, among the Pass Through Trustee, the Class A Liquidity Provider, the
Class B Liquidity Provider and the Subordination Agent.
Interest Drawing. Has the meaning specified in Section 1.01 of the
Intercreditor Agreement.
Invoice. The invoice for the Aircraft given by the Lessee to the
Lessor.
Lease. The Lease Agreement (Federal Express Corporation Trust No.
N587FE), dated as of December 1, 1996, as amended and restated as of May 1,
1997, entered into by the Lessor and the Lessee concurrently with the
execution and delivery of the Indenture, including, without limitation,
supplementation by one or more Lease Supplements entered into pursuant to the
applicable provisions of the Lease.
Lease Supplement. The Lease Supplement No. 1 (Federal Express
Corporation Trust No. N587FE), dated December 13, 1996, substantially in the
form of Exhibit A to the Lease.
Lease Term. The period commencing on the Delivery Date and ending at
the end of the Basic Term.
Lessee. Federal Express Corporation, a Delaware corporation.
Lessee Documents. Has the meaning set forth in Section 6.01(b) of
the Participation Agreement.
Lessor. Wilmington Trust Company, a Delaware banking corporation,
not in its individual capacity but solely as Owner Trustee under the Trust
Agreement.
Lessor's Estate. All estate, right, title and interest of the Owner
Trustee in and to the Aircraft, the Lease, any Lease Supplement, the
Participation Agreement, the Bills of Sale, the Modification Agreement, the
GTA, the Engine Warranty Assignment, the Engine Consent, any warranty with
respect to the Airframe and the Engines, all amounts of Basic Rent, Renewal
Rent and Supplemental Rent, including without limitation, insurance proceeds
(other than insurance proceeds payable to or for the benefit of either the
Owner Trustee in its individual capacity or any Owner Participant) and
requisition, indemnity or other payments of any kind for or with respect to
the Aircraft (except amounts owing to any Owner Participant or to the Owner
Trustee in its individual capacity, or to any of their respective directors,
officers, employees and agents pursuant to Articles 8 and 9 of the
Participation Agreement). Notwithstanding the foregoing, "Lessor's Estate"
shall not include any Excepted Payment.
Lessor's Liens. Liens against, on or with respect to the Aircraft,
the Lessor's Estate or the Trust Indenture Estate or any part thereof, title
thereto or any interest therein arising as a result of (i) claims against the
Lessor, in its individual capacity or as Owner Trustee, any Owner Participant
or any Affiliate of such Owner Participant, in each case not related to the
transactions contemplated by the Operative Agreements, (ii) acts or omissions
of the Lessor in its individual capacity or as Owner Trustee, and, in the case
of the Lessor in its individual capacity, arising from its gross negligence or
willful misconduct either not related to the transactions contemplated by or
expressly prohibited under the Operative Agreements and any act or omission of
any Owner Participant or any Affiliate of such Owner Participant which is not
related to the transactions contemplated by the Operative Agreements or is in
violation of any of the terms of the Operative Agreements, (iii) Taxes or
Expenses imposed against the Lessor, in its individual capacity or as Owner
Trustee, or any Owner Participant or any Affiliate of such Owner Participant,
the Lessor's Estate or the trust created by the Trust Agreement which are not
required to be indemnified against by the Lessee pursuant to the Tax Indemnity
Agreement or by reason of Section 8.01(b) or 9.01(b) of the Participation
Agreement, or (iv) claims against the Lessor or any Owner Participant arising
from the voluntary transfer by the Lessor or any Owner Participant of its
interests in the Aircraft other than a transfer of the Aircraft resulting from
an action or at the direction of the Lessee pursuant to Section 4.02(a) or
Article 8, 9, 10 or 11 of the Lease and other than a transfer pursuant to the
exercise of the remedies set forth in Article 17 of the Lease.
Lien. Any mortgage, pledge, lien, charge, encumbrance, lease or
security interest or other similar interest.
Liquidity Facility. Has the meaning specified in Section 1.01 of the
Intercreditor Agreement.
Liquidity Provider. Has the meaning specified in Section 1.01 of the
Intercreditor Agreement.
Loss Payee. Has the meaning specified in Section 13.02(b)(i) of the
Lease.
Majority in Interest of Certificate Holders. As of a particular date
of determination, the Holders of more than 50% of the aggregate unpaid
principal amount of all Certificates outstanding as of such date excluding for
purposes of this definition any Certificates held by (i) the Owner Trustee or
any Owner Participant unless all Certificates then outstanding shall be held
by such Owner Participant, (ii) the Lessee or (iii) any Affiliate of any
thereof.
Majority in Interest of Owner Participants. As of a particular date
of determination, the Owner Participants holding more than 50% of the
Beneficial Interest.
Make-Whole Premium. An amount determined as of the day before the
applicable Prepayment Date (or date of purchase, as the case may be) which an
Independent Investment Banker determines to be equal to the excess, if any, of
(i) the present value of the remaining scheduled payments of such principal
amount or portion thereof and interest thereon (excluding interest accrued
from the immediately preceding Payment Date to such Prepayment Date or date of
purchase, as the case may be) to the Maturity of such Certificate in
accordance with generally accepted financial practices assuming a 360-day year
consisting of twelve 30-day months at a discount rate equal to the Treasury
Yield, all as determined by the Independent Investment Banker over (ii) the
outstanding principal amount of such Certificate plus accrued interest.
Manufacturer. McDonnell Douglas Corporation, a Maryland corporation.
Maturity. With respect to any Certificate, the date on which the
final principal amount of such Certificate is scheduled to be due and payable.
Modification Agreement. The Aircraft Modification Agreement dated as
of December 1, 1995 between the Lessee and the Manufacturer providing for the
refurbishing and reconfiguration of the Aircraft including any warranties
relating thereto, but only to the extent that the foregoing relates to the
Aircraft, to the extent assigned to the Owner Trustee pursuant to the Warranty
Bill of Sale.
Moody's. Moody's Investors Service, Inc.
Net Present Value of Rents. The net present value, as of the
Delivery Date, of Basic Rent set forth in Schedule II of the Lease, discounted
at a rate per semi-annual period equal to the Debt Rate.
Non-U.S. Person. Any Person other than a U.S. Person.
Obsolete Parts. Parts which the Lessee in good faith determines to
be obsolete or no longer suitable or appropriate for use on the Airframe or
any Engine.
Officer's Certificate. When delivered pursuant to the Indenture, a
certificate signed by a Responsible Officer of the Lessee or the Owner
Trustee, as the case may be, and delivered to the Indenture Trustee. Each
such certificate shall include the statements provided for in Section 15.07 of
the Indenture.
Operative Agreements. The Participation Agreement, the Trust
Agreement, the Bills of Sale, the Modification Agreement, the GTA, the Engine
Warranty Assignment, the Lease, the Lease Supplement, the Owner Participant
Guaranty, the Owner Trustee Guaranty, if any, any Ancillary Agreement entered
into by or with the written consent of the Indenture Trustee, which by its
terms is an Operative Agreement, the Certificates outstanding at the time of
reference, the Indenture, the Indenture and Security Agreement Supplement, the
Engine Consent, each Liquidity Facility, the Intercreditor Agreement and the
Tax Indemnity Agreement.
Opinion of Counsel. When delivered pursuant to the Indenture, a
written opinion of legal counsel, who in the case of counsel (a) for the
Lessee may be (i) an attorney employed by the Lessee who is generally
empowered to deliver such written opinions, (ii) Davis Polk & Wardwell or a
successor firm or (iii) other counsel designated by the Lessee and reasonably
satisfactory to the Indenture Trustee and (b) for the Owner Trustee or the
Indenture Trustee, an attorney selected by such Person and, in the case of the
Owner Trustee, reasonably satisfactory to the Indenture Trustee.
Original Agreements. The documents and instruments delivered on the
Delivery Date in connection with the transactions contemplated by the Original
Participation Agreement.
Original Ancillary Agreement I. The Ancillary Agreement I (Federal
Express Corporation Trust No. N587FE), among the Lessee, the Owner
Participants, the Indenture Trustee and the Owner Trustee as it was originally
executed on the Delivery Date.
Original Indenture. The Trust Indenture, Mortgage and Security
Agreement (Federal Express Corporation Trust No. N587FE), dated as of December
1, 1996, between the Owner Trustee and the Indenture Trustee, which together
with the Indenture and Security Agreement Supplement No. 1 (Federal Express
Corporation Trust No. N587FE), dated December 13, 1996 attached thereto was
recorded as one instrument by the FAA on January 27, 1997 and assigned
Conveyance Number T053253.
Original Indenture Trustee. State Street Bank and Trust Company, a
Massachusetts trust company, not in its individual capacity but solely as
Original Indenture Trustee under the Original Indenture.
Original Lease. The Lease Agreement (Federal Express Corporation
Trust No. N587FE), dated as of December 1, 1996, between the Owner Trustee as
lessor, and the Lessee, which together with Lease Supplement No. 1 (Federal
Express Corporation Trust No. N587FE), dated December 13, 1996 attached
thereto was recorded as one instrument by the FAA on January 27, 1997 and
assigned Conveyance Number T053254.
Original Loan Certificates. The loan certificates issued on the
Delivery Date to the Original Loan Participant.
Original Loan Participant. The entities listed on Schedule I to the
Original Participation Agreement and their successors and assigns (other than
any assignees in connection with the Refunding Date).
Original Participation Agreement. The Participation Agreement
(Federal Express Corporation Trust No. N587FE), dated as of December 1, 1996,
among the Lessee, the Owner Participants, the Original Indenture Trustee, the
Owner Trustee and the Original Loan Participant as it was originally executed
on December 13, 1996.
Original Tax Indemnity Agreement. The Tax Indemnity Agreement
(Federal Express Corporation Trust No. N587FE), among the Lessee, the Owner
Participants and the Owner Trustee as it was originally executed as of
December 1, 1996.
Original Trust Agreement. The Trust Agreement (Federal Express
Corporation Trust No. N587FE), dated as of December 1, 1996, among the Owner
Participants and the Owner Trustee as it was originally executed and filed
with the FAA on December 13, 1996.
Outstanding. When used with respect to Certificates, as of the date
of determination and subject to the provisions of Section 10.04 of the
Indenture, all Certificates theretofore executed and delivered under the
Indenture, with the exception of the following:
(i) Certificates theretofore cancelled by the Indenture Trustee or
delivered to the Indenture Trustee for cancellation pursuant to
Section 2.08 of the Indenture or otherwise;
(ii) Certificates for which prepayment money in the necessary amount
has been theretofore deposited with the Indenture Trustee in trust
for the Holders of such Certificates pursuant to Section 14.01 of the
Indenture; provided, that if such Certificates are to be prepaid,
notice of such prepayment has been duly given pursuant to the
Indenture or provision therefor satisfactory to the Indenture Trustee
has been made; and
(iii) Certificates in exchange for or in lieu of which other
Certificates have been executed and delivered pursuant to Article II
of the Indenture.
Owner Participant or Owner Participants. The trustors originally
named in the Trust Agreement and any successors thereto, and any Person to
which any Owner Participant transfers, in accordance with the Trust Agreement,
its right, title and interest in and to the Operative Agreements and the
Lessor's Estate.
Owner Participant Guarantor. Comerica Bank, a Michigan banking
association, and any other provider, if any, of an Owner Participant Guaranty.
Owner Participant Guaranty. The Owner Participant Guaranty dated the
Delivery Date by Comerica Bank in favor of the Lessee, the Owner Trustee, the
Indenture Trustee and the Pass Through Trustee and any guaranty delivered in
compliance with Article 5 of the Trust Agreement.
Owner Trustee. WTC, not in its individual capacity except as
otherwise expressly stated, but solely as Owner Trustee under the Trust
Agreement.
Owner Trustee Guarantor. The provider, if any, of an Owner Trustee
Guaranty.
Owner Trustee Guaranty. Any guaranty delivered in compliance with
Section 11.01(b)(ii) of the Participation Agreement.
Owners' Economic Return. The Owner Participants' anticipated net
after-tax yield and aggregate after-tax cash flow during the Basic Term,
utilizing the multiple investment sinking fund method of analysis, computed on
the basis of the same methodology and assumptions as were utilized by the
Owner Participants in determining Basic Rent, Stipulated Loss Value and
Termination Value percentages and EBO Price, as such assumptions may be
adjusted for events which have been the basis of adjustments to Rent pursuant
to Section 3.04 of the Lease.
Participation Agreement. The Participation Agreement (Federal Express
Corporation Trust No. N587FE), dated as of December 1, 1996, as amended and
restated as of May 1, 1997, among the Lessee, the Original Loan Participant,
the Owner Trustee not in its individual capacity except as otherwise expressly
provided therein, but solely as owner trustee, the Owner Participants, the
Original Indenture Trustee, the Indenture Trustee not in its individual
capacity except as otherwise expressly provided therein, but solely as
indenture trustee, the Pass Through Trustee not in its individual capacity
except as otherwise expressly provided therein, but solely as pass through
trustee and the Subordination Agent not in its individual capacity except as
otherwise expressly provided therein, but solely as subordination agent.
Parts. All appliances, parts, components, instruments, appurtenances,
accessories, furnishings and other equipment of whatever nature (other than
complete Engines or engines) which may from time to time be incorporated or
installed in or attached to the Airframe or any Engine title or, prior to
replacement thereof in accordance with the Lease, which may be removed
therefrom.
Pass Through Agreement. The Pass Through Trust Agreement dated as of
May 1, 1997 between the Lessee and the Pass Through Trustee.
Pass Through Certificates. Any of the Pass Through Certificates,
1997-1-A, the Pass Through Certificates, 1997-1-B or the Pass Through
Certificates, 1997-1-C, in each case as issued by the related Pass Through
Trust; and "Pass Through Certificates" means all of the Pass Through
Certificates issued by each of the Pass Through Trusts.
Pass Through Closing Date. The Business Day on which the sale of the
Pass Through Certificates to the Underwriters pursuant to the Underwriting
Agreement takes place.
Pass Through Trust. The Federal Express Corporation 1997-1 Pass
Through Trust Class A, Federal Express Corporation 1997-1 Pass Through Trust
Class B and Federal Express Corporation 1997-1 Pass Through Trust Class C, in
each case formed pursuant to the related Series Supplement in accordance with
the Pass Through Agreement; and "Pass Through Trusts" means all of such Pass
Through Trusts.
Pass Through Trustee. First Security Bank, National Association, a
national banking association, in its capacity as Pass Through Trustee under
the Pass Through Agreement and each Pass Through Trust.
Past Due Rate. In respect of (A) any amount payable to the Owner
Participants or the Owner Trustee a rate per annum during the period from and
including the due date to but excluding the date on which such amount is paid
in full equal to 2% plus the Debt Rate and (B) any principal of or interest on
any Certificate or any other amount payable under the Indenture, any
Certificate or any other Operative Agreement that is not paid when due
(whether at Maturity, by acceleration, by optional or mandatory prepayment or
otherwise) to any Holder, the Indenture Trustee or the Pass Through Trustee, a
rate per annum during the period from and including the due date to but
excluding the date on which such amount is paid in full equal to (i) in the
case of any such amount payable to the Holder of any Certificate, 2% plus the
interest rate applicable to such Certificate and (ii) in the case of any other
such amount, 2% plus the Debt Rate.
Payment Date. Each January 15 and July 15 commencing on July 15,
1997.
Payment Default. Any event specified in Section 16.01(a) or 16.01(b)
of the Lease which with the giving of notice or lapse of time or both would
constitute an Event of Default.
Permitted Investments. Those investments enumerated in Section
23.01(a) (i), (ii), (iii) and (iv) of the Lease.
Person. Any individual, sole proprietorship, partnership, joint
venture, joint stock company, trust, unincorporated organization, association,
corporation, institution, entity or government (federal, state, local, foreign
or any agency, instrumentality, division or body thereof).
Preliminary Notice. Has the meaning specified in Section 4.01(a) of
the Lease.
Premium Termination Date. With respect to the Series A Certificates,
December 27, 2011, with respect to the Series B Certificates, February 5, 2010
and with respect to the Series C Certificates, March 22, 2007.
Prepayment Date. Has the meaning specified in Section 6.02(b) of the
Indenture.
Prepayment Price. Has the meaning specified in Section 6.02(b) of
the Indenture.
Principal Amount. With respect to a Certificate means the stated
original principal amount of such Certificate and, with respect to all
Certificates, means the aggregate stated original principal amounts of all
Certificates.
Property. Any right or interest in or to property of any kind
whatsoever, whether real, personal or mixed and whether tangible or
intangible.
Proposed Termination Date. Has the meaning specified in Section
10.01(a) of the Lease.
Purchase Price. The amount specified as such in Ancillary Agreement
II.
Record Date. With respect to Payment Dates under the Indenture
(except a date for payment of defaulted interest), December 31 for January 15
Payment Dates and June 30 for July 15 Payment Dates, whether or not such date
is a Business Day.
Recourse Amount. Has the meaning specified in Section 17.10 of the
Participation Agreement.
Refinancing. A non-recourse loan to the Lessor arranged pursuant to
Section 15.01 of the Participation Agreement.
Refunding Date. A Business Day on which the refunding of the
Original Loan Certificates occurs, the expected date thereof having been
specified by the Lessee in a written notice given to the parties to the
Participation Agreement and the Underwriters at least three (3) Business Days
prior to such expected Refunding Date.
Register. Has the meaning set forth in Section 3.02 of the Indenture.
Registrar. Has the meaning set forth in Section 3.02 of the
Indenture.
Remaining Weighted Average Life. On a given date with respect to any
Certificate the number of days equal to the quotient obtained by dividing (i)
the sum of each of the products obtained by multiplying (a) the amount of each
then remaining scheduled payment of principal of such Certificate by (b) the
number of days from and including such prepayment date to but excluding the
dates on which each such payment of principal is scheduled to be made; by (ii)
the then outstanding principal amount of such Certificate.
Renewal Rent. The amount payable by the Lessee as rent in accordance
with Section 4.01 of the Lease during any Renewal Term.
Renewal Term. Any Fixed Renewal Term or Fair Market Renewal Term with
respect to which the Lessee has exercised its option to renew the Lease
pursuant to Section 4.01(a) thereof.
Rent. All payments due from the Lessee under the Lease as Basic Rent,
Renewal Rent and Supplemental Rent, collectively.
Rent Payment Date. June 13, 2017 and each January 15 and July 15
commencing on July 15, 1997, and continuing thereafter during the Term.
Reoptimization Date. Has the meaning specified in Section 15.02(a)
of the Participation Agreement.
Replacement Aircraft. Any aircraft substituted for the Aircraft
pursuant to Section 11.03(a) of the Lease.
Replacement Airframe. Has the meaning set forth in Section 11.03 of
the Lease.
Replacement Engine. A General Electric CF6-80C2-D1F engine (or an
engine of the same or another manufacturer) of equal or greater value,
remaining useful life and utility as the Engine being replaced, together with
all Parts relating to such engine; provided, however, that if such replacement
engine is not a General Electric CF6-80C2-D1F engine, such replacement engine
must then be commonly used in the commercial aviation industry on McDonnell
Douglas MD-11 airframes.
Responsible Officer. With respect to the Owner Trustee (except for
purposes of the Trust Agreement in which case the definition of Responsible
Officer set forth in Section 3.10 of the Trust Agreement is applicable) or the
Indenture Trustee, any officer in its Corporate Trust Administration, as the
case may be, designated by such Person to perform obligations under the
Operative Agreements, and with respect to any other party, any corporate
officer or (except in the case of any Owner Participant) other employee of a
party who, in the normal performance of his or her operational
responsibilities, with respect to the subject matter of any covenant,
agreement or obligation of such party pursuant to any Operative Agreement,
would have responsibility for and knowledge of such matter and the
requirements of any Operative Agreement with respect thereto.
S&P. Standard & Poor's Ratings Group.
SEC. The Securities and Exchange Commission of the United States and
any successor agencies or authorities.
Secured Obligations. Has the meaning specified in the Granting
Clause of the Indenture.
Securities Act. The Securities Act of 1933, as amended.
Series "A" or "Series A Certificates". Certificates issued and
designated as "Series A" under the Indenture, in the Principal Amount and
maturities and bearing interest as specified in Exhibit B to the Indenture
under the heading "Series A".
Series "B" or "Series B Certificates". Certificates issued and
designated as "Series B" under the Indenture, in the Principal Amount and
maturities and bearing interest as specified in Exhibit B to the Indenture
under the heading "Series B".
Series "C" or "Series C Certificates". Certificates issued and
designated as "Series C" under the Indenture, in the Principal Amount and
maturities and bearing interest as specified in Exhibit B to the Indenture
under the heading "Series C".
Series Supplement or Series Supplements. The Series Supplement
1997-1-A to be executed and delivered by the Lessee and the Pass Through
Trustee, the Series Supplement 1997-1-B to be executed and delivered by the
Lessee and the Pass Through Trustee or the Series Supplement 1997-1-C to be
executed and delivered by the Lessee and the Pass Through Trustee.
Sinking Fund Redemption Date. Has the meaning specified in Section
6.06 of the Indenture.
Sinking Fund Redemption Price. Has the meaning specified in Section
6.06 of the Indenture.
Special Aviation Counsel. Daugherty, Fowler & Peregrin.
Stipulated Loss Value. As of any Stipulated Loss Value Determination
Date during the Basic Term, the amount determined by multiplying the Purchase
Price by the percentage set forth in Schedule III of the Lease under the
heading "Stipulated Loss Value Factor" opposite such date (as such Schedule
III may be adjusted from time to time as provided in Section 3.04 of the
Lease), and during any Renewal Term, the amount determined pursuant to Section
4.01(b) of the Lease. Notwithstanding any other provisions of the Lease or
the Participation Agreement or the Indenture, each Stipulated Loss Value for
the Aircraft shall be, under any circumstances and in any event, an amount,
together with so much of the arrears portion of Basic Rent due and owing
through the date of payment of Stipulated Loss Value as does not constitute an
Excepted Payment, at least sufficient to pay in full as of such date of
payment the aggregate unpaid principal amount of and accrued interest on the
Certificates outstanding on such date of payment. Subject to the immediately
preceding sentence, it is understood and agreed that the amounts set forth on
Schedule III of the Lease, for dates other than Rent Payment Dates on which
arrears Basic Rent is due, fully reflect appropriate Basic Rent accruals and
credits of unearned Basic Rent and, accordingly, no further accrual or credit
shall be required whenever Stipulated Loss Value is to be calculated with
reference to any such date.
Stipulated Loss Value Determination Date. Each date set forth on
Schedule III of the Lease.
Subordination Agent. First Security Bank, National Association, a
national banking association, not in its individual capacity but solely as
Subordination Agent.
Supplemental Rent. (a) All amounts, liabilities and obligations
which the Lessee assumes or agrees to perform or pay under the Lease or under
the Participation Agreement or Tax Indemnity Agreement or any Ancillary
Agreement or any other Operative Agreement to FSB, the Lessor, the Owner
Participant, the Indenture Trustee, the Subordination Agent, any Liquidity
Provider or others, including, without limitation, payments of Stipulated Loss
Value, EBO Price and amounts calculated by reference to Termination Value, and
all amounts required to be paid by Lessee under the agreements, covenants and
indemnities contained in the Lease or in the Participation Agreement or the
Tax Indemnity Agreement or any other Operative Agreement (other than Basic
Rent) and (b) all amounts that the Owner Trustee is obligated to pay in
accordance with clause (b) of the last paragraph of Section 2.04 of the
Indenture.
Tax. Has the meaning set forth in Section 8.01(a) of the
Participation Agreement.
Tax Indemnity Agreement. The Original Tax Indemnity Agreement as
amended by Amendment No. 1 to the Original Tax Indemnity Agreement.
Term. The Basic Term and any Renewal Term unless the Lease is
terminated earlier pursuant to its terms.
Termination Date. A Rent Payment Date during the Basic Term that is
on or after the fifth anniversary of the Delivery Date in the case of Article
10 of the Lease, and in the case of (i) Section 4.02(a)(A) of the Lease the
Rent Payment Date falling on July 15, 2009 or January 15, 2012, as the case
may be, (ii) Section 4.02(a)(D) or (E) of the Lease, a Rent Payment Date that
is on or after the fifth anniversary of the Delivery Date and (iii) Section
4.02(a)(F) of the Lease, January 15, 2014.
Termination Value. As of any Termination Date, the amount determined
by multiplying the Purchase Price by the percentage set forth in Schedule IV
of the Lease under the heading "Termination Value Factor" opposite such
Termination Date (as such Schedule IV may be adjusted from time to time as
provided in Section 3.04 of the Lease). Notwithstanding any other provisions
of the Lease, the Participation Agreement or the Indenture, each Termination
Value shall be, under any circumstances and in any event, an amount, together
with so much of the arrears portion of Basic Rent due and owing through the
date of payment of any amount calculated by reference to Termination Value as
does not constitute an Excepted Payment, at least sufficient to pay in full as
of such date of payment the aggregate unpaid principal amount of and accrued
interest on the Certificates outstanding on such date of payment. Subject to
the immediately preceding sentence, it is understood and agreed that the
amounts set forth on Schedule IV of the Lease, for dates other than Rent
Payment Dates on which arrears Basic Rent is due, fully reflect appropriate
Basic Rent accruals and credits of unearned Basic Rent and, accordingly, no
further accrual or credit shall be required whenever Termination Value is to
be calculated with reference to any such date.
Transaction Costs. Those costs and expenses set forth in Section
10.01(a) of the Participation Agreement.
Transportation Code. Title 49 of the United States Code, as amended
and in effect on the date of the Lease or as subsequently amended, or any
successor or substituted legislation at the time in effect and applicable, and
the regulations promulgated pursuant thereto.
Treasury Yield. At the time of determination with respect to any
Certificate, the interest rate (expressed as a semi-annual equivalent and as a
decimal and, in the case of United States Treasury bills, converted to a bond
equivalent yield) determined to be the per annum rate equal to the semi-annual
yield to maturity for United States Treasury securities maturing on the
Average Life Date on such Certificate and trading in the public securities
markets either as determined by interpolation between the most recent weekly
average yield to maturity for two series of United States Treasury securities,
trading in public securities markets, (i) one maturing as close as possible to,
but earlier than, the Average Life Date of such Certificate and (ii) the other
maturing as close as possible to, but later than, the Average Life Date of
such Certificate. In each case as published in the most recent H.15(519) or,
if a weekly average yield to maturity for United States Treasury securities
maturing on the Average Life Date of such Certificate is reported on the most
recent H.15 (519), such weekly average yield to maturity as published in such
H.15(919). "H.15(519)" means the weekly statistical release designated as
such, or any successor publication, published by the Board of Governors of the
Federal Reserve System. The date of determination of a Make-Whole Premium
will be the third Business Day prior to the applicable prepayment date and the
"most recent H.15(519)" means the H.15(519) published prior to the close of
business on the third Business Day prior to the applicable prepayment date.
Trust Agreement. The Trust Agreement (Federal Express Corporation
Trust No. N587FE), dated as of December 1, 1996, as amended and restated as of
May 1, 1997, among the Owner Participants and the Owner Trustee in its
individual capacity.
Trust Estate. The Lessor's Estate.
Trust Indenture Act. The Trust Indenture Act of 1939, as amended.
Trust Indenture Estate. All estate, right, title and interest of the
Indenture Trustee in and to any of the property, rights, interests and
privileges granted to the Indenture Trustee pursuant to the Granting Clause of
the Indenture, other than Excepted Payments and any and all other rights of
the Owner Trustee or any Owner Participant expressly reserved to the Owner
Trustee or any Owner Participant pursuant to the Indenture.
Underwriters. Morgan Stanley & Co. Incorporated, First Chicago
Capital Markets, Inc., Goldman, Sachs & Co. and J.P. Morgan & Co.
Underwriting Agreement. The Underwriting Agreement dated May 22, 1997
among the Lessee and the Underwriters.
United States, U.S. or US. The United States of America.
U.S. Air Carrier. Any United States air carrier as to which there is
in force a certificate issued pursuant to Section 41102(a) or Section 41103 of
the Transportation Code, and as to which there is in force an air carrier
operating certificate issued pursuant to Chapter 447 of the Transportation
Code and Part 121 of the regulations under such Transportation Code, for
aircraft capable of carrying ten (10) or more individuals or 6,000 pounds or
more of cargo, or which may operate as an air carrier by certification or
otherwise under any successor or substitute provision thereof or in absence
thereof.
U.S. Person. A Person described in Section 7701(a)(30) of the Code.
Warranty Bill of Sale. The full warranty bill of sale covering the
Aircraft (and specifically referring to each Engine) executed by the Lessee,
as seller in favor of the Owner Trustee, as buyer, and dated the Delivery Date.
WTC. Wilmington Trust Company, a Delaware banking corporation.
SCHEDULE III
DESCRIPTION OF ORIGINAL INDENTURE
Trust Indenture, Mortgage and Security Agreement (Federal Express
Corporation Trust No. N587FE) dated as of December 1, 1996 between Wilmington
Trust Company, as owner trustee under Trust Agreement (Federal Express
Corporation Trust No. N587FE) dated as of December 1, 1996 among CMCA Lease,
Inc. and Norwest Bank Minnesota, National Association, as owner participants
and Wilmington Trust Company, and State Street Bank and Trust Company, as
indenture trustee, recorded by the Federal Aviation Administration on January
27, 1997 and assigned Conveyance No. T053253, as supplemented by the following
described instrument:
FAA FAA
Date of Recording Conveyance
Instrument Instrument Date Number
- ---------- ---------- --------- ----------
Indenture and Security Agreement
Supplement No. 1
(Federal Express Corporation
Trust No. N587FE) 12/13/96 01/27/97 T053253
DESCRIPTION OF AIRCRAFT
One (1) McDonnell Douglas MD-11F aircraft bearing manufacturer's serial number
48489 and U.S. Registration No. N587FE (the "Airframe") and three (3) General
Electric CF6-80C2-D1F aircraft engines bearing manufacturer's serial numbers
702-757, 702-827 and 704-408
PARTICIPATION AGREEMENT
(FEDERAL EXPRESS CORPORATION TRUST NO. N670FE)
Dated as of May 1, 1997
among
FEDERAL EXPRESS CORPORATION,
Lessee
PMCC LEASING CORPORATION,
Owner Participant
STATE STREET BANK AND TRUST COMPANY OF CONNECTICUT,
NATIONAL ASSOCIATION,
Not in Its Individual Capacity
Except as Otherwise Expressly
Set Forth Herein, but Solely as Owner Trustee,
Owner Trustee
FIRST SECURITY BANK, NATIONAL ASSOCIATION,
Indenture Trustee
FIRST SECURITY BANK, NATIONAL ASSOCIATION,
Pass Through Trustee
and
FIRST SECURITY BANK, NATIONAL ASSOCIATION,
Subordination Agent
______________________________
LEVERAGED LEASE OF ONE AIRBUS A300F4-605R AIRCRAFT
SERIAL NO. 777, REGISTRATION NO. N670FE
TABLE OF CONTENTS
Page
Initial Recitals........................................................... 1
ARTICLE 1
DEFINITIONS............................................................. 3
ARTICLE 2
ISSUANCE OF PASS THROUGH CERTIFICATES;
ISSUANCE AND PURCHASE OF CERTIFICATES
Section 2.01. Transfer of Funds........................................ 4
Section 2.02. Certificates............................................. 5
Section 2.03. Owner Participant's Instructions to Owner Trustee........ 5
Section 2.04. Pre-Delivery Date Adjustments to Basic Rent, Stipulated
Loss Values and Termination Values....................... 5
ARTICLE 3
PARTICIPATION IN INVESTMENT ON DELIVERY DATE;
DELIVERY OF AIRCRAFT
Section 3.01. Lessee's Notice of Delivery Date......................... 6
Section 3.02. Commitments to Participate in Purchase Price............. 6
Section 3.03. Owner Participant's Instructions to Owner Trustee........ 9
Section 3.04. Transaction Costs........................................ 9
Section 3.05. Postponement of Delivery Date............................ 9
Section 3.06. Closing.................................................. 11
ARTICLE 4
CONDITIONS PRECEDENT
Section 4.01. Conditions Precedent (Certificate Closing Date).......... 11
Section 4.02. Conditions Precedent (Delivery Date)..................... 20
Section 4.03. Opinion of Special Aviation Counsel Upon Registration.... 28
ARTICLE 5
CONDITIONS PRECEDENT TO LESSEE'S OBLIGATIONS
Section 5.01. Conditions Precedent to Lessee's Obligations............. 28
ARTICLE 6
LESSEE'S REPRESENTATIONS, WARRANTIES AND COVENANTS
Section 6.01. Lessee's Representations and Warranties.................. 29
Section 6.02. Offering by Lessee....................................... 35
Section 6.03. Certain Covenants of Lessee.............................. 35
Section 6.04. Survival of Representations and Warranties............... 43
ARTICLE 7
OTHER PARTIES' REPRESENTATIONS, WARRANTIES AND COVENANTS
Section 7.01. Acquisitions and Offerings of Interests in Lessor's
Estate................................................... 43
Section 7.02. Citizenship.............................................. 44
Section 7.03. Representations, Warranties and Covenants of Owner
Participant.............................................. 45
Section 7.04. Representations, Covenants and Warranties of SSB and the
Owner Trustee............................................ 50
Section 7.05. Representations, Warranties and Covenants of the Indenture
Trustee.................................................. 52
Section 7.06. Indenture Trustee's Notice of Default.................... 54
Section 7.07. Releases from Indenture.................................. 54
Section 7.08. Covenant of Quiet Enjoyment.............................. 54
Section 7.09. Pass Through Trustee's Representations and Warranties.... 54
Section 7.10. Survival of Representations, Warranties and Covenants.... 55
Section 7.11. Lessee's Assumption of the Certificates.................. 55
Section 7.12. Indebtedness of Owner Trustee............................ 57
Section 7.13. Compliance with Trust Agreement, Etc..................... 58
Section 7.14. Subordination Agent's Representations, Warranties and
Covenants................................................ 58
ARTICLE 8
TAXES
Section 8.01. Lessee's Obligation to Pay Taxes......................... 60
Section 8.02. After-Tax Basis.......................................... 65
Section 8.03. Time of Payment.......................................... 66
Section 8.04. Contests................................................. 66
Section 8.05. Refunds.................................................. 69
Section 8.06. Lessee's Reports......................................... 69
Section 8.07. Survival of Obligations.................................. 70
Section 8.08. Payment of Taxes......................................... 70
Section 8.09. Reimbursements by Indemnitees Generally.................. 70
Section 8.10. Special Indemnity........................................ 70
ARTICLE 9
GENERAL INDEMNITY
Section 9.01. Generally................................................ 71
Section 9.02. After-Tax Basis.......................................... 74
Section 9.03. Subrogation.............................................. 75
Section 9.04. Notice and Payment....................................... 75
Section 9.05. Refunds.................................................. 75
Section 9.06. Defense of Claims........................................ 76
Section 9.07. Survival of Obligations.................................. 77
Section 9.08. Effect of Other Indemnities.............................. 77
Section 9.09. Interest................................................. 77
Section 9.10. Special Indemnity........................................ 78
ARTICLE 10
TRANSACTION COSTS
Section 10.01. Transaction Costs and Other Costs....................... 78
ARTICLE 11
SUCCESSOR OWNER TRUSTEE
Section 11.01. Appointment of Successor Owner Trustee.................. 80
ARTICLE 12
LIABILITIES AND INTERESTS OF THE OWNER PARTICIPANT AND HOLDERS
Section 12.01. Liabilities of the Owner Participant.................... 82
Section 12.02. Interest of Holders of Certificates..................... 82
ARTICLE 13
OTHER DOCUMENTS
Section 13.01. Consent of Lessee to Other Documents.................... 82
Section 13.02. Further Assurances...................................... 83
Section 13.03. Pass Through Trustee's and Subordination Agent's
Acknowledgment.......................................... 83
ARTICLE 14
NOTICES
Section 14.01. Notices................................................. 83
ARTICLE 15
REFINANCING/REOPTIMIZATION
Section 15.01. Refinancing............................................. 84
Section 15.02. Reoptimization.......................................... 88
ARTICLE 16
[RESERVED]
ARTICLE 17
MISCELLANEOUS
Section 17.01. Owner for Federal Tax Purposes.......................... 89
Section 17.02. Collateral Account...................................... 89
Section 17.03. Counterparts............................................ 90
Section 17.04. No Oral Modifications................................... 90
Section 17.05. Captions................................................ 91
Section 17.06. Successors and Assigns.................................. 91
Section 17.07. Concerning the Owner Trustee, Indenture Trustee and the
Pass Through Trustee.................................... 91
Section 17.08. Severability............................................ 92
Section 17.09. Public Release of Information........................... 92
Section 17.10. Certain Limitations on Reorganization................... 92
Section 17.11. GOVERNING LAW........................................... 93
Section 17.12. Section 1110 Compliance................................. 93
Section 17.13. Reliance of Liquidity Providers......................... 93
ARTICLE 18
CONFIDENTIALITY
Section 18.01. Confidentiality......................................... 93
SCHEDULE I Certificate Information
SCHEDULE II Definitions
SCHEDULE III Permitted Country List
SCHEDULE IV Debt Portion
EXHIBIT A(1)(a)(i) Opinion of Lessee's Counsel
(Certificate Closing Date)
EXHIBIT A(1)(a)(ii) Opinion of Lessee's Counsel
(Delivery Date)
EXHIBIT A(1)(b)(i) Opinion of Lessee's Special Counsel
(Certificate Closing Date)
EXHIBIT A(1)(b)(ii) Opinion of Lessee's Special Counsel
(Delivery Date)
EXHIBIT A(2)(a) Opinion of Owner Participant's and Owner Participant
Guarantor's Special Counsel
EXHIBIT A(2)(b) Opinion of Owner Participant's and Owner Participant
Guarantor's Counsel
EXHIBIT A(3) Opinion of Indenture Trustee's Special Counsel
EXHIBIT A(4)(a)(i) Opinion of Owner Trustee's Special Counsel
(Certificate Closing Date)
EXHIBIT A(4)(a)(ii) Opinion of Owner Trustee's Special Counsel
(Delivery Date)
EXHIBIT A(5) Opinion of Pass Through Trustee's and Subordination
Agent's Special Counsel
EXHIBIT A(6)(a) Opinion of Liquidity Provider's Counsel
EXHIBIT A(6)(b) Opinion of Liquidity Provider's Special Counsel
EXHIBIT A(7) Opinion of Engine Manufacturer's Counsel
EXHIBIT A(8) Opinion of Manufacturer's and AVSA's Counsel
EXHIBIT A(9) Opinion of Special Aviation Counsel
EXHIBIT B Form of Lease Agreement
EXHIBIT C Form of Indenture
EXHIBIT D Form of Trust Agreement
EXHIBIT E Form of Purchase Agreement Assignment, Consent and
Agreement, AVSA Consent and Agreement
EXHIBIT F Form of Engine Warranty Assignment and Engine Consent
EXHIBIT G-1 Form of Assignment and Assumption Agreement
EXHIBIT G-2 Form of Owner Participant Guaranty
PARTICIPATION AGREEMENT
(FEDERAL EXPRESS CORPORATION TRUST NO. N670FE)
PARTICIPATION AGREEMENT (FEDERAL EXPRESS CORPORATION TRUST NO.
N670FE) dated as of May 1, 1997 (this "Agreement") among FEDERAL EXPRESS
CORPORATION, a Delaware corporation (herein, together with its successors and
permitted assigns, the "Lessee"), PMCC LEASING CORPORATION, a Delaware
corporation (herein, together with its successors and permitted assigns, the
"Owner Participant"), STATE STREET BANK AND TRUST COMPANY OF CONNECTICUT,
NATIONAL ASSOCIATION, a national banking association, not in its individual
capacity, except as otherwise expressly stated herein, but solely as owner
trustee under the Trust Agreement referred to below (in such capacity as
trustee, together with its successors and permitted assigns, the "Owner
Trustee"), FIRST SECURITY BANK, NATIONAL ASSOCIATION, a national banking
association, not in its individual capacity, except as otherwise expressly
stated herein, but solely as indenture trustee under the Indenture referred to
below (in such capacity as trustee, together with its successors and permitted
assigns, the "Indenture Trustee"), FIRST SECURITY BANK, NATIONAL ASSOCIATION,
a national banking association, not in its individual capacity, except as
otherwise expressly stated herein, but solely as pass through trustee of three
separate Pass Through Trusts (in such capacity as trustee, together with its
successors and permitted assigns, the "Pass Through Trustee"), and FIRST
SECURITY BANK, NATIONAL ASSOCIATION, a national banking association, not in its
individual capacity, except as otherwise expressly stated herein, but solely as
subordination agent (in such capacity as trustee, together with its successors
and permitted assigns, the "Subordination Agent").
W I T N E S S E T H :
WHEREAS, capitalized terms used herein shall have the respective
meanings set forth or referred to in Article 1 hereof.
WHEREAS, the Owner Participant has entered into the Trust Agreement
with the Owner Trustee in its individual capacity, substantially in the form
of Exhibit D hereto, pursuant to which Trust Agreement the Owner Trustee
agrees, among other things, to hold the Lessor's Estate for the benefit of the
Owner Participant on the terms specified in the Trust Agreement, subject to
the Lien of the Indenture.
WHEREAS, on the Pass Through Closing Date, a closing will occur
with respect to the public offering of Pass Through Certificates issued by
each Pass Through Trust, an allocable amount of the proceeds of which
offering will be used by the Pass Through Trustee to purchase for each such
Pass Through Trust the Certificates of the Series and Maturity applicable
thereto.
WHEREAS, on the Certificate Closing Date, the Owner Trustee and the
Indenture Trustee will enter into the Indenture for the benefit of the Pass
Through Trustee, pursuant to which the Owner Trustee is issuing the
Certificates to the Subordination Agent on behalf of the Pass Through Trustee
as evidence of the loans made by the Pass Through Trustee to the Owner
Trustee, the proceeds of which loans will be deposited by the Indenture
Trustee on behalf of the Owner Trustee in the Collateral Account.
WHEREAS, concurrently with the execution and delivery hereof, (i)
Kredietbank N.V., acting through its New York Branch will enter into two
revolving credit agreements (each, a "Liquidity Facility"), one for the
benefit of the holders of Pass Through Certificates of each of the Pass
Through Trusts for the Series A Certificates and the Series B Certificates,
with the Subordination Agent, as agent for the Pass Through Trustee on behalf
of each such Pass Through Trust; and (ii) the Pass Through Trustee, each
Liquidity Provider and the Subordination Agent will enter into the
Intercreditor Agreement.
WHEREAS, the Certificates will be held by the Subordination Agent
pursuant to the Intercreditor Agreement on behalf of the Pass Through Trustee
for each of the Pass Through Trusts.
WHEREAS, prior to the Delivery Date, the Certificates will be secured
by the Liquid Collateral.
WHEREAS, pursuant to the terms of the Trust Agreement, the Owner
Trustee will be authorized and directed by the Owner Participant:
(a) on the Delivery Date, to purchase the Aircraft from AVSA;
(b) on the Certificate Closing Date, to execute and deliver the
Lease substantially in the form of Exhibit B hereto, pursuant to which,
subject to the terms and conditions set forth in said Lease, the Owner
Trustee agrees to lease to the Lessee, and the Lessee agrees to lease from
the Owner Trustee, the Aircraft on the Delivery Date, such lease to be
effected by the execution and delivery on the Delivery Date of a Lease
Supplement, in the form of Exhibit A to the Lease, covering the Aircraft
and incorporating by reference all of the terms of the Lease;
(c) on the Certificate Closing Date, to execute and deliver the
Indenture, substantially in the form of Exhibit C hereto, for the benefit
of the Holders from time to time of the Certificates, pursuant to which the
Owner Trustee agrees, among other things, (A) to deposit, mortgage and
pledge with the Indenture Trustee, as part of the Trust Indenture Estate,
all of the Lessor's Estate but not Excepted Payments, (B) on the
Certificate Closing Date, to issue Certificates substantially in the form
set forth in Exhibit B to the Indenture, the proceeds of the sale of which
will be held by the Indenture Trustee on behalf of the Owner Trustee in
the Collateral Account until released in accordance with the terms
hereof and of the Indenture, and (C) on the Delivery Date, to execute
and deliver the Indenture and Security Agreement Supplement,
substantially in the form of Exhibit A to the Indenture, covering the
Aircraft and supplementing the Indenture;
(d) on the Certificate Closing Date, to execute and deliver the
Purchase Agreement Assignment, whereby the Lessee assigns to the Owner
Trustee the right to purchase the Aircraft from AVSA and certain of the
Lessee's rights and interests under the Purchase Agreement and the Consent
and Guaranty to the extent that the same relate to the Aircraft (except to
the extent reserved in said Purchase Agreement Assignment), which Purchase
Agreement Assignment is to include as an annex a Consent and Agreement
executed by the Manufacturer and the AVSA Consent and Agreement executed by
AVSA, said Purchase Agreement Assignment, Consent and Agreement and AVSA
Consent and Agreement to be substantially in the form of Exhibit E hereto;
and
(e) on the Certificate Closing Date, to execute and deliver the
Engine Warranty Assignment, whereby the Lessee assigns to the Owner Trustee
certain of the Lessee's rights and interests under the GTA to the extent
that the same relate to the Engines (except to the extent reserved in the
Engine Warranty Assignment), which Engine Warranty Assignment is to include
as an annex an Engine Consent executed by the Engine Manufacturer, said
Engine Warranty Assignment and Engine Consent to be substantially in the
form of Exhibit F hereto.
WHEREAS, on the Delivery Date pursuant to and subject to the terms
and conditions of this Agreement, the Purchase Agreement Assignment, the
Engine Warranty Assignment, AVSA's FAA Bill of Sale, AVSA's Warranty Bill
of Sale and the Airbus Guaranty, the Owner Trustee will purchase, and
receive title to, the Aircraft from AVSA and lease the Aircraft to the
Lessee pursuant to the Lease.
NOW, THEREFORE, in consideration of the mutual covenants contained in
this Agreement and other good and valuable consideration, receipt of which is
hereby acknowledged, the parties hereto agree as follows:
ARTICLE 1
DEFINITIONS
Unless otherwise specifically provided herein, the definitions set
forth in Schedule II hereto are incorporated herein for all purposes of this
Agreement and shall be equally applicable to both the singular and the plural
forms of the terms so defined.
ARTICLE 2
ISSUANCE OF PASS THROUGH CERTIFICATES;
ISSUANCE AND PURCHASE OF CERTIFICATES
Section 2.01. Transfer of Funds.
(a) On or before the Pass Through Closing Date, the Pass Through
Trustee and the Lessee, in accordance with the Pass Through Agreement, shall
enter into the Series Supplements, and, subject to the terms and conditions
set forth therein, on the Pass Through Closing Date (i) the Lessee shall
direct the Underwriters to execute a wire transfer or intra-bank transfer to
the Pass Through Trustee in the amount of the total proceeds payable pursuant
to the Underwriting Agreement with respect to the Pass Through Certificates
and (ii) the Pass Through Trustee shall deliver the Pass Through Certificates
to the Underwriters upon receipt by the Pass Through Trustee of such proceeds.
(b) Subject to the satisfaction or waiver of the conditions set
forth herein, on the Certificate Closing Date, on behalf of each Pass Through
Trust, from an allocable amount of the proceeds of the sale of the related
Pass Through Certificates, the Pass Through Trustee shall purchase the
Certificates specified for such Pass Through Trust on Schedule I hereto. For
each Pass Through Trust, the Pass Through Trustee shall pay an amount equal to
the principal amount of Certificates of the Series and Maturity that relates
to such Pass Through Trust, which amounts in the aggregate shall equal the
aggregate principal amount of the Certificates as specified in Section 2.04 of
the Indenture. The aggregate amount payable by the Pass Through Trustee
pursuant to this Section 2.01(b) shall be payable by wire transfer or
intra-bank transfer to the Indenture Trustee on behalf of the Owner Trustee.
(c) On the Certificate Closing Date, the Indenture Trustee shall,
on behalf of the Owner Trustee, deposit, by wire transfer or intra-bank
transfer, the amounts received by it pursuant to Section 2.01(b) hereof in the
Collateral Account pursuant to the Indenture.
(d) On the Certificate Closing Date concurrently with the events
specified in Section 2.01(b) hereof, the parties hereto shall execute and
deliver, to the extent they are parties thereto, and consent to the execution
and delivery of (if they are not parties thereto), the Lease (other than the
Lease Supplement), the Indenture (other than the Indenture and Security
Agreement Supplement), and the other documents listed in Section 4.01(d)
hereof, and the Owner Trustee shall execute and deliver to the Indenture
Trustee for authentication, and the Indenture Trustee shall authenticate and
deliver to the Subordination Agent on behalf of the Pass Through Trustee for
each of the Pass Through Trusts, upon the request of the Owner Trustee, the
Certificates as provided in Section 2.02 hereof.
(e) The Closings shall take place at the offices of Davis Polk &
Wardwell, 450 Lexington Avenue, New York, New York 10017.
Section 2.02. Certificates. Subject to the satisfaction or waiver
of the conditions set forth herein, on the Certificate Closing Date, the Owner
Participant will instruct the Owner Trustee to execute and deliver to the
Indenture Trustee, and the Indenture Trustee shall authenticate and deliver,
upon the request of the Owner Trustee, to the Subordination Agent on behalf of
the Pass Through Trustee for each of the Pass Through Trusts, the Certificates
specified for such Pass Through Trust on Schedule I attached hereto, which (i)
shall be issued in the principal amount and in the Series and Maturity set
forth for such Certificate in Schedule I hereto, (ii) shall bear interest at
the interest rate set forth for such Certificate in Schedule I hereto, (iii)
shall be issued in such form and on such terms as are specified in the
Indenture, (iv) shall be dated and authenticated on the Certificate Closing
Date and shall bear interest from the Certificate Closing Date and (v) shall
be registered in the name of the Subordination Agent on behalf of the Pass
Through Trustee for such Pass Through Trust.
Section 2.03. Owner Participant's Instructions to Owner Trustee.
The Owner Participant agrees that the issuance of Certificates in
accordance with the terms hereof shall constitute, without further act,
authorization and direction by the Owner Participant to the Owner Trustee
to take the action specified in Section 1.01 (other than clauses (a) and
(c)) of the Trust Agreement and confirmation that all conditions to closing
in respect of the Certificate Closing Date set forth in Section 4.01 (but
not Section 4.02) hereof were either met to the satisfaction of the Owner
Participant or, if not so met, were in any event waived by it.
Section 2.04. Pre-Delivery Date Adjustments to Basic Rent,
Stipulated Loss Values and Termination Values. On or prior to the Delivery
Date, the percentages for Basic Rent referred to in Schedule II of the Lease
and the percentages for Stipulated Loss Value and Termination Value in
Schedule III and Schedule IV, respectively, of the Lease shall be adjusted
(upward or downward), subject to the procedures set forth in Section 3.04 of
the Lease and the minimum values established by Section 3.05 of the Lease and
the definitions of Stipulated Loss Value and Termination Value, to reflect
changes in the pricing assumptions with respect to (i) the Delivery Date being
other than June 2, 1997, (ii) a different rate of interest or amortization
schedule assumed by the Owner Participant in calculating such percentages from
that assumed by the Owner Participant in originally calculating such
percentages, (iii) Transaction Costs being other than as assumed in Section
10.01 hereof, (iv) any change in the length of the Basic Term (but in no event
shall the Term exceed 23.25 years) and (v) a Change in Tax Law which occurs
after the date of the execution of this Agreement but on or prior to the
Delivery Date. Notwithstanding anything herein to the contrary, the Lessee
shall have no obligation to enter into the transaction contemplated by this
Agreement other than with respect to Transaction Costs as described in Section
2.03 below and its obligation to purchase the Aircraft as provided in Section
3.05(a) hereof if, as a result of a Change in Tax Law after the date of
execution of this Agreement but on or prior to the Delivery Date, the Net
Present Value of Rents is increased by 100 basis points or more.
ARTICLE 3
PARTICIPATION IN INVESTMENT ON DELIVERY DATE;
DELIVERY OF AIRCRAFT
Section 3.01. Lessee's Notice of Delivery Date. The Lessee agrees
to give the Owner Participant, the Indenture Trustee, the Owner Trustee and
the Pass Through Trustee at least three (3) Business Days' written or
facsimile notice prior to the Delivery Date (which notice shall be effective
only if received not later than 10:00 a.m. (New York City time) on the date
that is at least three (3) Business Days prior to the Delivery Date), which
Delivery Notice shall specify the amount of the Purchase Price, the amount of
the Owner Participant's Commitment, the Debt Portion, the Delivery Date for
the Aircraft, the serial number of the Airframe and each Engine, and the
Aeronautics Authority registration number for the Aircraft.
Section 3.02. Commitments to Participate in Purchase Price. (a)
Participation in Purchase Price. Subject to the terms and conditions of this
Agreement, on the Delivery Date, (i) subject to the proviso to this Section
3.02(a), the Indenture Trustee agrees to release the Debt Portion or such
lesser amount as may then be held in the Collateral Account together with the
Lessee Shortfall (as defined in clause (iii) below), if any, to the Owner
Trustee for application to the Purchase Price as provided below, (ii) the
Owner Participant agrees to participate in the Lessor's payment of the
Purchase Price by making an investment in the beneficial ownership of the
Lessor's Estate in an amount equal to the amount set forth in Ancillary
Agreement II, (iii) subject to the proviso to this Section 3.02(a), the Lessee
agrees to pay to the Indenture Trustee the excess, if any, of (I) the Debt
Portion over (II) such amount as may then be held in the Collateral Account
(the "Lessee Shortfall") as provided in Section 17.02(a) hereof, and (iv)
pursuant to the Purchase Agreement as assigned pursuant to the Purchase
Agreement Assignment, AVSA shall sell the Aircraft to the Owner Trustee and
the Owner Trustee shall immediately thereafter lease the Aircraft to the
Lessee pursuant to the Lease. In consideration for the assignment to the
Owner Trustee by the Lessee under the Purchase Agreement Assignment of the
Lessee's right to purchase the Aircraft for the remaining balance due under
the Purchase Agreement and for the transfer of title to the Aircraft from
AVSA to the Owner Trustee, the following cash payments will be made by wire
transfer of immediately available funds on the Delivery Date: (A) by the
Owner Trustee to AVSA, an amount equal to the remaining balance due to AVSA
under the Purchase Agreement for the Aircraft, as evidenced by the Invoice,
or if the proviso to this Section 3.02(a) is applicable, such amount as it
shall have received from the Owner Participant not to exceed such remaining
balance due to AVSA, (B) by the Owner Trustee to the Lessee, an amount
equal to the Purchase Price (or if the proviso to this Section 3.02(a) is
applicable, the amount received from the Owner Participant) minus the cash
payment to AVSA pursuant to clause (A) above and (C) by the Indenture
Trustee, on behalf of the Owner Trustee, to the Lessee the excess of any
amounts as may then be held in the Collateral Account over the Debt
Portion; provided, however, that if (1) the Delivery Date has been
postponed, (2) the investments contemplated by Section 2.14(b) of the
Indenture have been made, (3) such investments do not mature on the
rescheduled Delivery Date and (4) the Lessee elects not to break such
investments, then the Indenture Trustee shall not release amounts in the
Collateral Account to the Owner Trustee and the Lessee shall instead pay to
AVSA any balance of the Purchase Price remaining after payment to AVSA by
the Owner Trustee as contemplated by clause (A) above and the Indenture
Trustee shall pay to the Lessee at the end of the applicable investment
period referred to in Section 2.14(b) of the Indenture all amounts then
held in the Collateral Account.
(b) Payment of Commitment. The Owner Participant agrees with the
Lessee and only with the Lessee on behalf of the Owner Trustee, subject to the
terms and conditions of this Agreement, to make the amount of its Commitment
available for and on account of the Owner Trustee on the Delivery Date
specified in the Delivery Notice pursuant to Section 3.03 hereof by wire
transfer, initiated by 10:00 a.m. (New York City time on such day) of such
amount in immediately available funds, to the Owner Trustee for deposit in its
account at State Street Bank and Trust Company, Boston, Massachusetts, ABA
No. 011-000-028, A/C No. 9900-314-7, Attention: Christy O'Connor, Re: FedEx
Equity Payments Account. The amount of the Owner Participant's Commitment
shall be held for the account of the Owner Participant by the Owner Trustee
until released by the Owner Participant or its special counsel at closing or
until returned to the Owner Participant in accordance with Section 3.02(c)
hereof.
(c) No Obligation to Increase Commitments; Delayed Delivery. (i) If
the Indenture Trustee shall default in its obligation to make the amount of
its Debt Portion available pursuant hereto, the Owner Participant shall have
no obligation to make any portion of such Debt Portion available or to
increase the amount of its Commitment, and the obligations of the Owner
Participant shall remain subject to the terms and conditions of this
Agreement, until no later than September 30, 1997.
(ii) Subject to the provisions of Section 3.05 hereof, if the closing
of the transactions contemplated by the Operative Agreements shall not have
been consummated by 2:00 p.m. (New York City time), or such earlier time as
directed by the Lessee, on the Scheduled Delivery Date, the Owner Trustee
shall, if instructed in writing by the Lessee, at the risk and expense of the
Lessee, use its reasonable best efforts to cause the Owner Participant's
Commitment to be invested and reinvested to the extent practicable at the
direction received by it from the Lessee (with a copy to the Owner
Participant), at the risk of the Lessee, in Permitted Investments consisting
of either commercial paper or time deposits; provided, however, that in the
absence of instructions by 2:00 p.m. (New York City time) the Owner Trustee
shall use its reasonable best efforts to cause such amount or the proceeds
thereof to be invested and reinvested to the extent practicable in overnight
Eurodollar time deposits. Earnings on any such investments shall be applied
to the Lessee's payment obligations, if any, to such Owner Participant
pursuant to the next succeeding paragraph, and the balance, if any, of such
earnings remaining after such application shall be paid in accordance with the
Lessee's written instructions.
If for any reason (i) the Operative Agreements shall not be executed
and delivered by the respective parties thereto and/or the delayed Delivery
Date shall not occur (whether by reason of a failure to meet a condition
precedent thereto set forth in Article 4 hereof or otherwise) on or before the
third Business Day after the Scheduled Delivery Date (or earlier if requested
by the Owner Participant) or, if earlier, the Cut-Off Date, or (ii) the Lessee
has notified the Owner Trustee (with a copy to the Owner Participant) prior to
2:00 p.m. (New York City time) on any date after the Scheduled Delivery Date
that it does not intend to go forward to close the transactions contemplated
hereby for such Delivery Date, the Owner Participant may cancel any funding
arrangements made to fund its Commitment on the Scheduled Delivery Date but
the Owner Participant's Commitment hereunder with respect to the Aircraft
shall not be terminated thereby until September 30, 1997, whereupon the
Owner Participant's Commitment hereunder shall terminate. On such third
Business Day (or such earlier date) or September 30, 1997, as the case may
be, or the earliest practicable Business Day thereafter, the Owner Trustee
shall return the amounts held by it hereunder to the Owner Participant,
provided that the Owner Trustee shall have had a reasonable time to
liquidate any Permitted Investments it has been authorized to invest in
pursuant to the preceding paragraph and to obtain the proceeds therefrom in
funds of the type originally received, and the Lessee shall pay interest on
such funds to the Owner Participant at the Debt Rate, such interest to be
payable for the period from and including such Scheduled Delivery Date to
but excluding the date such funds are returned to the Owner Participant in
accordance with the terms hereof; provided that if any such funds are
returned to the Owner Participant after 2:00 p.m. (New York City time) on
any such date, such funds shall be deemed for purposes of this paragraph to
have been returned on the next succeeding Business Day.
The Lessee shall reimburse the Owner Trustee on demand for any loss
incurred by the Owner Trustee as a result of the investment of funds by the
Owner Trustee in accordance with the terms of this Section 3.02(c). Further,
the Lessee shall indemnify the Owner Trustee and hold it harmless from and
against any cost or expense the Owner Trustee may incur as a result of any
investment of funds or transfer of funds referred to herein in accordance with
the terms hereof. The Owner Trustee shall not be liable for failure to invest
such funds except as otherwise provided herein or for any losses incurred on
such investments except for any losses arising out of its own gross negligence
or willful misconduct.
Section 3.03. Owner Participant's Instructions to Owner Trustee.
The Owner Participant agrees that the release of its Commitment in
accordance with the terms hereof shall constitute, without further act,
authorization and direction by the Owner Participant to the Owner Trustee
to take the actions specified in Sections 1.01(a) and (c) of the Trust
Agreement and confirmation that all conditions to closing set forth in
Section 4.02 hereof were either met to the satisfaction of the Owner
Participant or, if not so met, were in any event waived by it.
Section 3.04. Transaction Costs. If the transactions contemplated
by this Article 3 are consummated, as and when any portion of Transaction
Costs becomes due and payable, the Owner Participant shall, as soon as
practicable upon receipt of bills or invoices for the amounts payable make
such payments or, if the Lessee shall have already made such payment, shall
reimburse the Lessee therefor or shall, as soon as practicable, furnish the
Owner Trustee funds sufficient to, and the Owner Trustee shall, as soon as
practicable, make payment of such portion to the Person or Persons entitled to
payment upon presentation to the Owner Trustee of bills or invoices for the
amount of such payment. If such transactions are not consummated, the Lessee
shall pay or cause to be paid all the Transaction Costs; provided, however
that if the failure of such transactions to be consummated is due to (i) a
failure of the Owner Participant to obtain investment approval to proceed with
the transaction contemplated hereby, (ii) a failure to negotiate the Operative
Agreements in good faith by the Owner Participant or (iii) a wrongful act by
the Owner Participant, the Lessee shall have no obligation to pay those costs
and expenses incurred directly by the Owner Participant in connection with the
transactions contemplated by this Agreement described in Sections 10.01(a)(i)
and (xi) hereof, but the Lessee shall be obligated to pay all other
Transaction Costs.
Section 3.05. Postponement of Delivery Date. (a) If the Owner
Participant shall for any reason fail or refuse to make the full amount of its
Commitment available on the Scheduled Delivery Date in accordance with the
terms of Section 3.02 hereof, the Owner Trustee will promptly give each party
confirmed facsimile notice thereof and the Lessee shall postpone the Delivery
Date for a period of not more than five (5) Business Days, but in no event
later than September 30, 1997. If the Owner Participant shall for any reason
fail or refuse to make the full amount of its Commitment available in
accordance with the terms of Section 3.02 hereof on such postponed Delivery
Date, (i) if the Owner Participant fails to make available its Commitment in
breach of its obligations under this Agreement, the Lessee shall cause the
Owner Participant to assign to another equity investor identified by the
Lessee its interest in the Lessor's Estate pursuant to Section 7.03(d) hereof
and (ii) if no such equity investor is identified, or if such equity investor
fails to close such transactions, or if the Owner Participant fails to make
available its Commitment for any other reason than as specified in clause (i)
above, the Owner Participant's interest in the Lessor's Estate shall be
automatically conveyed to the Lessee without any further action, and the
parties hereto shall take such actions as may be advisable or necessary to
give effect to such conveyance. From and after any such conveyance, the
Owner Participant's obligations hereunder and under the other Operative
Agreements shall cease. The exception to the Lessee's indemnity set forth
in clause (viii) of Section 9.01(b) hereof shall not be applicable to any
such conveyance other than a conveyance pursuant to clause (i) above. For
the avoidance of doubt, it is understood and agreed that if for any reason
other than the failure of the Manufacturer or AVSA to deliver the Aircraft,
the Lessee does not enter into the Lease Supplement with the Owner Trustee
on or prior to the Cut-Off Date, the Indenture Trustee and the Pass Through
Trustee agree that the Lessee shall purchase the Aircraft and assume all of
the obligations of the Owner Trustee under the Certificates upon
satisfaction of the requirements set forth in Section 4.02 hereof, as the
same may be modified by the provisions of Section 7.11 hereof and as
otherwise necessary to reflect a full recourse secured aircraft financing
of the Lessee. If the Lessee has identified an equity investor under the
circumstances set forth in clause (i) above, the Owner Participant agrees
to assign its interest in the Lessor's Estate as provided in said clause
(i). In case of any such conveyance pursuant to said clause (i) (but
subject to the satisfaction of the conditions precedent specified herein),
the Indenture Trustee shall release the Debt Portion or such lesser amount
as may then be held in the Collateral Account for application to the
payments contemplated in the last sentence of Section 3.02(a) hereof,
subject to the proviso to Section 3.02(a) hereof.
(b) Release of Obligations. If the Delivery Date has not occurred
on or prior to the Cut-Off Date (i) in the case of the Indenture Trustee and
the Pass Through Trustee, as a result of a failure of the Manufacturer or AVSA
to deliver the Aircraft, or (ii) in the case of the Owner Participant, for any
reason, then, in such event, the Owner Trustee shall not purchase the Aircraft
from AVSA, and the parties to the Operative Agreements shall have no further
obligations or liabilities under any of said Operative Agreements with respect
to the Aircraft, including the obligation of the Owner Participant to
participate in the payment of the Purchase Price, and such documents shall
terminate and have no further force or effect with respect to the Aircraft;
provided, however, that the Lessee shall provide, no later than the Cut-Off
Date, notice of prepayment to the Indenture Trustee and the Certificates shall
be prepaid on the 15th day following the Cut-Off Date as provided in Section
6.02(a)(vi) of the Indenture and Section 17.02(c) hereof and provided further,
that (i) the Lessee's obligation to pay any Transaction Costs as provided in
Section 3.04 hereof (to the extent such section is applicable) and to
indemnify such parties to the extent provided in such documents, shall not be
diminished or modified in any respect and (ii) the obligations of the Owner
Trustee, the Indenture Trustee and the Lessee to return funds and pay
interest, costs, expenses and other amounts thereon or in respect thereof as
provided in Section 3.02 hereof shall continue.
(c) Optional Postponement. Without limiting the provisions of
Section 3.02(c) hereof, the Scheduled Delivery Date may be postponed from time
to time (but in no event shall the Delivery Date be later than the Cut-Off
Date) for any reason, other than pursuant to Section 3.05(a) hereof, if the
Lessee gives the Owner Participant, the Indenture Trustee, the Owner Trustee
and the Pass Through Trustee confirmed facsimile notice (or telephone notice
followed by written confirmation) of such postponement and notice of the date
to which the Delivery Date has been postponed, such notice of postponement to
be received by each party no later than 11:00 a.m. (New York City time) on the
Business Day preceding the Scheduled Delivery Date.
Section 3.06. Closing. The closing with respect to the purchase and
lease of the Aircraft on the Delivery Date shall take place at the offices of
Davis Polk & Wardwell, 450 Lexington Avenue, New York, New York 10017.
ARTICLE 4
CONDITIONS PRECEDENT
Section 4.01. Conditions Precedent (Certificate Closing Date). The
obligations of the Owner Trustee, the Owner Participant, the Indenture
Trustee, the Subordination Agent and the Pass Through Trustee on behalf of
each Pass Through Trust to participate in the transactions contemplated hereby
on the Certificate Closing Date are subject to the fulfillment to the
satisfaction of such party (or waiver by such party), prior to or on the
Certificate Closing Date, of the following conditions precedent (it being
understood that receipt by the Lessee of any of the following documents shall
not be a condition precedent to the obligations of any party):
(a) Certificates. (i) On the Certificate Closing Date, there shall
have been duly issued and delivered by the Owner Trustee to the
Subordination Agent on behalf of the Pass Through Trustee for each Pass
Through Trust, against payment therefor, a Certificate, substantially in
the form set forth in Exhibit B to the Indenture, duly authenticated, dated
the Certificate Closing Date and registered in the name of the
Subordination Agent, in the principal amounts, Series and Maturity, bearing
the interest rate and the other economic terms specified in the Series
Supplements and otherwise as provided in Section 2.04 of the Indenture.
The Pass Through Certificates shall be registered under the Securities Act,
any applicable state securities laws shall have been complied with, and the
Pass Through Agreement shall have been qualified under the Trust Indenture
Act, and (ii) on the Certificate Closing Date, the "Certificates" (as
defined in each of the Related Indentures) have been duly issued and
delivered by the "Owner Trustee" (as defined in each of the Related
Indentures) to the Subordination Agent on behalf of the Pass Through
Trustee for each Pass Through Trust.
(b) Legal Investment. On the Certificate Closing Date, no fact or
condition shall exist under applicable laws or regulations, or
interpretations of any such laws or regulations by applicable regulatory
authorities, which, in the opinion of the Owner Participant or its special
counsel, the Pass Through Trustee, the Subordination Agent or the Indenture
Trustee or their special counsel, would make it illegal for the Owner
Participant, the Lessee, the Owner Trustee, the Pass Through Trustee, the
Subordination Agent or the Indenture Trustee, and no change in
circumstances shall have occurred which would otherwise make it illegal or
otherwise in contravention of guidance issued by regulatory authorities for
the Owner Participant, the Lessee, the Owner Trustee, the Pass Through
Trustee, the Subordination Agent or the Indenture Trustee, to participate
in the transactions to be consummated on the Certificate Closing Date; and
no action or proceeding shall have been instituted nor shall governmental
action before any court, governmental authority or agency be threatened
which in the opinion of counsel for the Owner Participant, the Indenture
Trustee, the Subordination Agent or the Pass Through Trustee is not
frivolous, nor shall any order have been issued or proposed to be issued by
any court, or governmental authority or agency, as of the Certificate
Closing Date, to set aside, restrain, enjoin or prevent the consummation of
any of the transactions contemplated by this Agreement or by any of the
other Operative Agreements.
(c) Underwriters. The Underwriters shall have transferred the funds
specified in Section 2.01(a) hereof and all conditions thereunder shall
have been satisfied or waived.
(d) Documents. This Agreement and the following documents shall
have been duly authorized, executed and delivered by the respective
party or parties thereto, shall each be satisfactory in form and
substance to the Lessee, the Owner Trustee, the Indenture Trustee, the
Pass Through Trustee and the Owner Participant (each acting directly or
by authorization to its special counsel) and shall each be in full force
and effect; there shall not have occurred any default thereunder, or any
event which with the lapse of time or the giving of notice or both would
be a default thereunder, and copies executed or certified as requested
by the Lessee, the Owner Trustee, the Indenture Trustee, the Pass
Through Trustee, the Subordination Agent or the Owner Participant, as
the case may be, of such documents shall have been delivered to the
Owner Participant, the Lessee, the Indenture Trustee, the Pass Through
Trustee, the Subordination Agent and the Owner Trustee (provided that
the sole chattel-paper original of each of the Lease and each Ancillary
Agreement amendatory of the Lease, shall be delivered to the Indenture
Trustee):
(i) the Lease;
(ii) the Indenture;
(iii) in the case of the Owner Participant only, the Tax Indemnity
Agreement;
(iv) the Purchase Agreement and the Consent and Guaranty;
(v) the Purchase Agreement Assignment and the French Pledge
Agreement with respect thereto;
(vi) the GTA;
(vii) the Trust Agreement;
(viii) the Ancillary Agreement I;
(ix) the Ancillary Agreement II;
(x) the Owner Participant Guaranty;
(xi) the Intercreditor Agreement; and
(xii) the Liquidity Facility for each of the Pass Through Trusts for
the Series A Certificates and the Series B Certificates.
(e) Approvals. All approvals and consents of any trustees or
holders of any indebtedness or obligations of the Lessee, which in the
opinion of the Owner Participant, the Pass Through Trustee or the Indenture
Trustee are required in connection with any transaction contemplated by
this Agreement, shall have been duly obtained.
(f) Financing Statements. Uniform Commercial Code ("UCC") financing
statements covering all the security interests (and other interests)
intended to be created by or pursuant to the Granting Clause of the
Indenture shall have been executed and delivered by the Owner Trustee, as
debtor, and by the Indenture Trustee, as secured party, for and on behalf
of the Holders, and such financing statements shall have been duly filed or
duly submitted for filing in the State of Connecticut, and all other
actions shall have been taken which, in the opinion of the Owner
Participant, the Pass Through Trustee and the Underwriters, are necessary
to perfect and protect such security interests and other interests.
(g) Corporate Documents. Except when such Person is the delivering
party, the Owner Participant, the Owner Trustee, the Pass Through Trustee,
the Lessee and the Indenture Trustee (acting directly or by authorization
to its counsel) shall have received the following, in each case in form and
substance satisfactory to it:
(i) a copy of the certificate of incorporation and by-laws of the
Lessee, certified by the Secretary or an Assistant Secretary of the
Lessee as of the Certificate Closing Date, and a copy of the minutes
of the regular meeting of the board of directors of the Lessee,
certified as such as of the Certificate Closing Date by such
Secretary or Assistant Secretary, duly authorizing the lease by the
Lessee of the Aircraft under the Lease and the execution, delivery
and performance by the Lessee of this Agreement, the Lease, the Tax
Indemnity Agreement, the Pass Through Agreement, the Series
Supplements, the other Operative Agreements to which the Lessee is
or is to be a party and each other document to be executed and
delivered by the Lessee in connection with the transactions
contemplated hereby;
(ii) a copy of the articles of incorporation and bylaws of the
Owner Participant and the Owner Participant Guarantor, certified by
the Secretary or an Assistant Secretary of the Owner Participant or
the Owner Participant Guarantor as of the Certificate Closing Date,
and a copy of the resolutions of the board of directors of the Owner
Participant, certified as such as of the Certificate Closing Date by
such Secretary or an Assistant Secretary, authorizing the execution
and delivery by the Owner Participant of this Agreement, the Tax
Indemnity Agreement, the Trust Agreement and the other Operative
Agreements to which the Owner Participant is or is to be a party and
each other document to be executed and delivered by the Owner
Participant in connection with the transactions contemplated hereby,
and a copy of the resolutions of the board of directors of the Owner
Participant Guarantor, certified as such as of the Certificate
Closing Date by the Secretary or an Assistant Secretary, authorizing
the execution and delivery by the Owner Participant Guarantor of the
Owner Participant Guaranty and the other Operative Agreements to
which such Owner Participant Guarantor is or is to be a party and
each other document to be executed and delivered by the Owner
Participant Guarantor in connection with the transactions
contemplated hereby;
(iii) a copy of the articles of association and by-laws and other
instruments of the Owner Trustee, certified by the Secretary or an
Assistant Secretary of the Owner Trustee as of the Certificate
Closing Date (or other like instruments satisfactory to the Lessee
and the Owner Participant) and evidence authorizing the execution,
delivery and performance by the Owner Trustee in its individual
capacity or as Owner Trustee, as the case may be, of this Agreement,
the Trust Agreement and each of the other Operative Agreements to
which it is or is to be a party, whether in its individual capacity
or as Owner Trustee, and each other document to be executed and
delivered by the Owner Trustee in connection with the transactions
contemplated hereby;
(iv) a copy of the articles of association and by-laws and
other instruments of the Indenture Trustee, certified by the
Secretary or an Assistant Secretary of the Indenture Trustee as of
the Certificate Closing Date (or other like instruments
satisfactory to the Lessee and the Owner Participant) and evidence
authorizing the execution, delivery and performance by the
Indenture Trustee of each of this Agreement, the Indenture and
each of the other Operative Agreements to which it is or is to be
a party, and each other document to be executed and delivered by
the Indenture Trustee in connection with the transactions
contemplated hereby;
(v) a copy of the articles of association and by-laws and other
instruments of the Pass Through Trustee, certified by the Secretary
or an Assistant Secretary of the Pass Through Trustee as of the
Certificate Closing Date (or other like instruments satisfactory to
the Lessee and the Owner Participant) and evidence authorizing the
execution, delivery and performance by the Pass Through Trustee of
this Agreement, the Pass Through Agreement, the Series Supplements
and each of the other Operative Agreements to which it is or is to be
a party, and each other document to be executed and delivered by the
Pass Through Trustee in connection with the transactions contemplated
hereby;
(vi) a copy of the articles of association and by-laws and other
instruments of the Subordination Agent, certified by the Secretary or
an Assistant Secretary of the Subordination Agent as of the
Certificate Closing Date (or other like instruments satisfactory to
the Lessee and the Owner Participant) and evidence authorizing the
execution, delivery and performance by the Subordination Agent of
this Agreement, the Intercreditor Agreement and each of the other
Operative Agreements to which it is or is to be a party, and each
other document to be executed and delivered by the Subordination
Agent in connection with the transactions contemplated hereby; and
(vii) such other documents, evidences, materials, and information
with respect to the Lessee, the Owner Trustee, the Indenture Trustee,
the Pass Through Trustee and the Owner Participant as the Indenture
Trustee, the Pass Through Trustee or the Owner Participant may
reasonably request in order to establish the consummation of the
transactions contemplated by this Agreement.
(h) Officer's Certificate of Lessee. On the Certificate Closing
Date, the following statements shall be true, and the Owner Participant,
the Owner Trustee, the Pass Through Trustee and the Indenture Trustee shall
have received a certificate signed by the Vice President and Treasurer or
any other duly authorized officer of the Lessee, dated the Certificate
Closing Date, stating that:
(i) the representations and warranties of the Lessee contained in
the Operative Agreements to which it is a party (excluding the Tax
Indemnity Agreement) and in any certificate delivered pursuant hereto
or thereto are true and correct on and as of the Certificate Closing
Date as though made on and as of such date (except to the extent that
such representations and warranties relate solely to an earlier date,
in which case such certificate shall state that such representations
and warranties were true and correct on and as of such earlier date);
(ii) except for the matters described (i) under "Legal
Proceedings" in the Lessee's Annual Report on Form 10-K for the
fiscal year ended May 31, 1996 (as updated by Note 7 to the financial
statements included in the Lessee's Quarterly Reports on Form 10-Q
for the fiscal quarters ended August 31, 1996, November 30, 1996 and
February 28, 1997) and (ii) in the Lessee's Current Reports on Form
8-K dated June 7, 1996, August 16, 1996 and March 4, 1997, as to
which such officer will make no certification concerning the
liability of the Lessee (if any), or the effect of any adverse
determination upon the consolidated financial condition, business or
operations of the Lessee, no material adverse change has occurred in
the financial condition, business or operations of the Lessee from
that shown in the audited financial statements of the Lessee as of
May 31, 1996 and nothing has occurred which will, in the judgment of
such officer, materially adversely affect the ability of the Lessee
to carry on its business or to perform its obligations under this
Agreement and each other Operative Agreement to which it is or is to
be a party; and
(iii) no event has occurred and is continuing, or would result
from the purchase, sale, mortgage, or lease of the Aircraft, which
constitutes an Event of Loss (or event which with the passage of time
would become an Event of Loss) with respect to the Airframe or any
Engine, or a Default or an Event of Default under the Lease.
(i) Officer's Certificate of Owner Participant and Owner Participant
Guarantor. On the Certificate Closing Date, the following statements shall
be true, and the Lessee, the Pass Through Trustee, the Owner Trustee and
the Indenture Trustee shall have received a certificate from (i) the Owner
Participant, signed by a duly authorized officer of the Owner Participant
dated the Certificate Closing Date, stating that:
(i) the representations and warranties of the Owner Participant
contained in this Agreement, the Trust Agreement and any other
Operative Agreement to which it is a party (excluding the Tax
Indemnity Agreement) and in any certificate delivered pursuant hereto
or thereto, are true and correct on and as of the Certificate Closing
Date as though made on and as of such date (except to the extent that
such representations and warranties relate solely to an earlier date,
in which case such certificate shall state that such representations
and warranties were true and correct on and as of such earlier date);
(ii) no Lessor's Liens attributable to the Owner Participant
exist; and
(iii) no event has occurred and is continuing which constitutes
or, with notice or lapse of time or both would constitute, due to any
action or omission on the part of the Owner Participant, an Indenture
Event of Default other than an Indenture Event of Default
attributable to a Lease Event of Default.
and (ii) from the Owner Participant Guarantor, signed by a duly authorized
officer of such Owner Participant Guarantor dated the Certificate Closing
Date, stating that the representations and warranties of such Owner
Participant Guarantor contained in its Owner Participant Guaranty and in
any certificate delivered at the closing pursuant thereto are true and
correct on and as of the Certificate Closing Date as though made on and as
of such date (except to the extent that such representations and warranties
relate solely to an earlier date, in which case such certificate shall
state that such representations and warranties were true and correct on and
as of such earlier date).
(j) Other Officer's Certificates. On the Certificate Closing Date,
the following statements shall be true, and the Lessee, the Pass Through
Trustee, the Owner Trustee, the Subordination Agent and the Indenture
Trustee shall have received a certificate from each of SSB and the Owner
Trustee (in the case of the Lessee, the Pass Through Trustee, the
Subordination Agent and the Indenture Trustee), FSB and the Indenture
Trustee (in the case of the Lessee, the Pass Through Trustee, the
Subordination Agent and the Owner Trustee), FSB and the Pass Through
Trustee (in the case of the Lessee, the Indenture Trustee, the
Subordination Agent and the Owner Trustee) and FSB and the Subordination
Agent (in the case of the Lessee, the Pass Through Trustee, the Indenture
Trustee and the Owner Trustee), signed by a duly authorized officer of SSB
and FSB, respectively, dated the Certificate Closing Date, stating with
respect to SSB and the Owner Trustee, with respect to FSB and the Indenture
Trustee, with respect to FSB and the Pass Through Trustee or with respect
to FSB and the Subordination Agent, as the case may be, that:
(i) the representations and warranties of SSB in its individual
capacity and as Owner Trustee, of FSB in its individual capacity and
as Indenture Trustee, of FSB in its individual capacity and as Pass
Through Trustee or of FSB in its individual capacity and as
Subordination Agent contained in this Agreement, the Lease, the Trust
Agreement and the Indenture and in any certificate delivered pursuant
hereto or thereto are true and correct on and as of the Certificate
Closing Date as though made on and as of such date (except to the
extent that such representations and warranties relate solely to
an earlier date, in which case such certificate shall state that
such representations and warranties were true and correct on and
as of such earlier date);
(ii) to the best of its knowledge, no event has occurred and is
continuing, which constitutes or which, but for the lapse of time or
the giving of notice, or both, would constitute, due to any action or
omission on the part of SSB in its individual capacity or as Owner
Trustee, of FSB in its individual capacity or as Indenture Trustee,
of FSB in its individual capacity or as Pass Through Trustee, an
Event of Default or an Indenture Event of Default or of FSB in its
individual capacity or as Subordination Agent, an Event of Default or
an Indenture Event of Default; and
(iii) there are no Lessor's Liens attributable to the Owner
Trustee or SSB and no Indenture Trustee's Liens.
(k) Legal Opinions. The Owner Participant, the Underwriters, the
Lessee, the Owner Trustee, the Pass Through Trustee and the Indenture
Trustee (acting directly or by authorization to its special counsel) shall
have received from the following counsel their respective legal opinions in
each case satisfactory to the Owner Participant, the Underwriters, the
Lessee, the Owner Trustee, the Pass Through Trustee or the Indenture
Trustee, as the case may be, as to scope and substance (and covering such
other matters as the recipient may reasonably request) and dated the
Certificate Closing Date:
(i) George W. Hearn, Vice President - Law of the Lessee, in the
form of Exhibit A(1)(a)(i) hereto and addressed to the Underwriters,
the Owner Participant, the Owner Trustee, the Pass Through Trustee,
each Liquidity Provider and the Indenture Trustee;
(ii) Simpson Thacher & Bartlett, special counsel for the Owner
Participant and the Owner Participant Guarantor, in the form of
Exhibit A(2)(a) hereto and the General Counsel's Office of the Owner
Participant and the Owner Participant Guarantor, in the form of
Exhibit A(2)(b) hereto, each addressed to the Underwriters, the Owner
Participant, the Indenture Trustee, the Owner Trustee, the Pass
Through Trustee, each Liquidity Provider and the Lessee;
(iii) Ray, Quinney & Nebeker, special counsel for the Indenture
Trustee, in the form of Exhibit A(3) hereto and addressed to the
Underwriters, the Owner Participant, the Indenture Trustee, the Owner
Trustee, the Pass Through Trustee, each Liquidity Provider and the
Lessee;
(iv) Bingham, Dana & Gould LLP, special counsel for the Owner
Trustee, in the form of Exhibit A(4)(a)(i) hereto and addressed to
the Underwriters, the Owner Participant, the Indenture Trustee, the
Owner Trustee, the Pass Through Trustee, each Liquidity Provider and
the Lessee;
(v) Davis Polk & Wardwell, special counsel for the Lessee, in the
form of Exhibit A(1)(b)(i) hereto and addressed to the Underwriters,
the Owner Participant, the Indenture Trustee, the Owner Trustee, the
Pass Through Trustee, each Liquidity Provider and the Lessee;
(vi) Ray, Quinney & Nebeker, special counsel for the Pass Through
Trustee and the Subordination Agent, in the form of Exhibit A(5)
hereto and addressed to the Underwriters, the Owner Participant, the
Indenture Trustee, the Owner Trustee, the Pass Through Trustee, each
Liquidity Provider and the Lessee; and
(vii) Johan Tyteca, Esq., manager of the Legal Department of
Kredietbank N.V., in the form of Exhibit A(6)(a) hereto, and Milbank,
Tweed, Hadley & McCloy, special counsel for the Liquidity Providers,
in the form of Exhibit A(6)(b) hereto, each addressed to the Pass
Through Trustee, the Subordination Agent, each Liquidity Provider and
the Lessee.
(l) No Indenture Event of Default. No Indenture Event of Default or
Indenture Default has occurred and is continuing.
(m) Event of Default; Default; Event of Loss. No Default or Event
of Default under the Lease or Event of Loss or event, which with the
passage of time or if continued unremedied or unaltered would constitute an
Event of Loss, shall have occurred or be in existence.
(n) Other Agreements. The Lessee and the Pass Through Trustee
shall have entered into the Pass Through Agreement and the Series
Supplements, all conditions to the effectiveness of each thereof shall
have been satisfied or waived, and the Pass Through Certificates shall
have been issued pursuant to the Series Supplements. The Lessee and the
Underwriters shall have entered into the Underwriting Agreement, all
conditions to the effectiveness thereof shall have been satisfied or
waived, and the Pass Through Certificates shall have been delivered
pursuant to the Underwriting Agreement. All conditions to the
effectiveness of each Liquidity Facility shall have been satisfied or
waived.
(o) Payment of Taxes. (A) All taxes, fees, charges, assessments,
costs and other expenses then due and payable in connection with the
execution, delivery, recording and filing of all financing statements
referred to in subparagraph (f) of this Section 4.01, or in connection with
the issuance of the Certificates shall have been duly paid or caused to be
paid in full; and (B) all sales or use taxes and duties related to the
consummation of the transactions contemplated by the Operative Agreements
on the Certificate Closing Date which are then due and payable shall have
been duly paid in full.
(p) Governmental Compliance. All appropriate action required to
have been taken by the FAA, the SEC, or any governmental or political
agency, subdivision or instrumentality of the United States, prior to the
Certificate Closing Date in connection with the transactions contemplated
by this Agreement shall have been taken, and all orders, permits, waivers,
authorizations, exemptions and approvals (collectively "permits") of such
entities required to be in effect on the Certificate Closing Date in
connection with the transactions contemplated by this Agreement shall have
been issued, and all such permits shall be in full force and effect on the
Certificate Closing Date.
(q) Section 131.3 of the New York State Banking Law Filing. SSB
shall have delivered evidence of its filing made with the New York
Superintendent of Banking pursuant to Section 131.3 of the New York State
Banking Law.
Section 4.02. Conditions Precedent (Delivery Date). Subject to the
last paragraph of this Section 4.02, the obligations of the Owner Trustee, the
Owner Participant, the Indenture Trustee, the Subordination Agent and the Pass
Through Trustee on behalf of each Pass Through Trust to participate in the
transactions contemplated hereby on the Delivery Date are subject to the
fulfillment to the satisfaction of each party (or waiver by such party), prior
to or on the Delivery Date, of the following conditions precedent (it being
understood that receipt by the Lessee of any of the following documents shall
not be a condition precedent to the obligation of any party):
(a) Notice, Etc. Each party hereto shall have received a Delivery
Notice pursuant to Section 3.01 hereof at least three (3) Business Days
prior to the Delivery Date.
(b) Legal Investment. No change shall have occurred after the
Certificate Closing Date and on or prior to the Delivery Date in applicable
laws or regulations, or interpretations of any such laws or regulations by
applicable regulatory authorities, which, in the opinion of the Owner
Participant or its special counsel, the Pass Through Trustee, the
Subordination Agent or the Indenture Trustee or their special counsel,
would make it illegal for the Owner Participant, the Lessee, the Owner
Trustee, the Pass Through Trustee, the Subordination Agent or the Indenture
Trustee, and no change in circumstances shall have occurred which would
otherwise make it illegal or otherwise in contravention of guidance issued
by regulatory authorities for the Owner Participant, the Lessee, the Owner
Trustee, the Pass Through Trustee, the Subordination Agent or the Indenture
Trustee, to participate in the transactions to be consummated on the
Delivery Date; and no action or proceeding shall have been instituted nor
shall governmental action before any court, governmental authority or
agency be threatened which in the opinion of counsel for the Owner
Participant, the Indenture Trustee, the Subordination Agent or the Pass
Through Trustee is not frivolous, nor shall any order have been issued or
proposed to be issued by any court, or governmental authority or agency, as
of the Delivery Date, to set aside, restrain, enjoin or prevent the
consummation of any of the transactions contemplated by this Agreement or
by any of the other Operative Agreements.
(c) Documents. The documents referred to in Section 4.01(d) hereof
shall each be in full force and effect and the following documents shall
have been duly authorized, executed and delivered by the respective party
or parties thereto, shall each be satisfactory in form and substance to the
Lessee, the Owner Trustee, the Indenture Trustee, the Pass Through Trustee,
the Subordination Agent and the Owner Participant (each acting directly or
by authorization to its special counsel) and shall each be in full force
and effect; there shall not have occurred any default thereunder, or any
event which with the lapse of time or the giving of notice or both would be
a default thereunder, and copies executed or certified as requested by the
Lessee, the Owner Trustee, the Indenture Trustee, the Pass Through Trustee
or the Owner Participant, as the case may be, of such documents shall have
been delivered to the Owner Participant, the Lessee, the Indenture Trustee,
the Pass Through Trustee and the Owner Trustee (provided that the sole
chattel-paper original of the Lease Supplement shall be delivered to the
Indenture Trustee):
(i) the Lease Supplement covering the Aircraft, dated the Delivery
Date;
(ii) an Indenture and Security Agreement Supplement covering the
Aircraft, dated the Delivery Date;
(iii) the Invoice;
(iv) AVSA's FAA Bill of Sale, AVSA's Warranty Bill of Sale and the
Airbus Guaranty;
(v) the Consent and Agreement and the AVSA Consent and Agreement;
and
(vi) the Engine Warranty Assignment and the Engine Consent.
(d) Legal Opinions. The Owner Participant, the Underwriters, the
Lessee, the Owner Trustee, the Pass Through Trustee and the Indenture
Trustee (acting directly or by authorization to its special counsel) shall
have received from the following counsel their respective legal opinions in
each case satisfactory to the Owner Participant, the Underwriters, the
Lessee, the Owner Trustee, the Pass Through Trustee or the Indenture
Trustee, as the case may be, as to scope and substance (and covering such
other matters as the recipient may reasonably request) and dated the
Delivery Date:
(i) George W. Hearn, Vice President - Law of the Lessee, in the
form of Exhibit A(1)(a)(ii) hereto and addressed to the Underwriters,
the Owner Participant, the Owner Trustee, the Pass Through Trustee,
each Liquidity Provider and the Indenture Trustee;
(ii) Davis Polk & Wardwell, special counsel for the Lessee, in the
form of Exhibit A(1)(b)(ii) hereto and addressed to the Underwriters,
the Owner Participant, the Indenture Trustee, the Owner Trustee, the
Pass Through Trustee, each Liquidity Provider and the Lessee;
(iii) Bingham, Dana & Gould LLP, special counsel for the Owner
Trustee, in the form of Exhibit A(4)(a)(ii) hereto and addressed to
the Underwriters, the Owner Participant, the Indenture Trustee, the
Owner Trustee, the Pass Through Trustee, each Liquidity Provider and
the Lessee;
(iv) counsel for the Engine Manufacturer, in the form of Exhibit
A(7) hereto and addressed to the Underwriters, the Owner Participant,
the Indenture Trustee, the Owner Trustee, the Pass Through Trustee,
each Liquidity Provider and the Lessee;
(v) Clifford Chance, special counsel for AVSA and the
Manufacturer, in the form of Exhibit A(8) hereto and addressed to the
Underwriters, the Owner Participant, the Indenture Trustee, the Owner
Trustee, the Pass Through Trustee, each Liquidity Provider and the
Lessee;
(vi) Daugherty, Fowler & Peregrin, special aviation counsel, in
the form of Exhibit A(9) hereto and addressed to the Underwriters,
the Owner Participant, the Indenture Trustee, the Owner Trustee, the
Pass Through Trustee, each Liquidity Provider and the Lessee; and
(vii) in the case of the Owner Participant only, Simpson
Thacher & Bartlett, tax counsel to the Owner Participant,
addressed to the Owner Participant, with respect to certain tax
matters.
(e) Title, Airworthiness and Registration. On the Delivery Date,
the following statements shall be true, and the Owner Participant, the
Indenture Trustee, the Pass Through Trustee and the Owner Trustee shall
have received evidence from the Lessee reasonably satisfactory to the
Owner Participant, the Indenture Trustee, the Pass Through Trustee and
the Owner Trustee to the effect that:
(i) the Owner Trustee has good and marketable title (subject to
filing and recording of AVSA's FAA Bill of Sale with the Aeronautics
Authority) to the Aircraft, free and clear of Liens, except the
rights of the Owner Trustee and the Lessee under the Lease and the
Lease Supplement covering the Aircraft, the rights of the Indenture
Trustee under the Indenture and the beneficial interest of the Owner
Participant created by the Trust Agreement and the interest of the
Certificate Holders created by the Indenture and the Indenture and
Security Agreement Supplement covering the Aircraft, which evidence
shall include AVSA's FAA Bill of Sale, AVSA's Warranty Bill of Sale
and the Airbus Guaranty;
(ii) the Aircraft has been duly certificated by the Aeronautics
Authority as to type and airworthiness in accordance with the terms
of the Operative Agreements;
(iii) AVSA's FAA Bill of Sale, the Lease and Lease Supplement
covering the Aircraft, the Indenture and the Indenture and Security
Agreement Supplement covering the Aircraft and the Trust Agreement
shall have been duly filed for recordation (or shall be in the
process of being so duly filed for recordation) with the Aeronautics
Authority pursuant to the Transportation Code; and
(iv) application to the Aeronautics Authority for registration of
the Aircraft in the name of the Owner Trustee shall have been duly
made and the Lessee shall have temporary or permanent authority to
operate the Aircraft.
(f) Financing Statements. A UCC notice filing describing the Lease
as a lease shall have been executed and delivered by the Owner Trustee, as
lessor, and the Lessee, as lessee (which filing shall name the Indenture
Trustee as assignee of the Owner Trustee) and shall have been duly filed in
the State of Tennessee.
(g) Payments. The Owner Participant shall have made available its
Commitment to the Owner Trustee and the other payments contemplated by
Section 3.02 hereof shall have been made.
(h) Report of Aircraft Expert. The Owner Participant shall have
received a report prepared by BK Associates, Inc. addressed to the Owner
Participant (with an abbreviated report to the Lessee) which report shall
be in form and substance satisfactory to the Owner Participant to the
effect, among other things, that on the Delivery Date:
(i) (A) the estimated fair market value of the Aircraft net of
any cost to the Owner Participant or the Owner Trustee of return at
the end of the Basic Term and any Fixed Renewal Term (determined
without including in such value any increase or decrease for
inflation or deflation during the Term) is equal to or greater than
20% of the Purchase Price for the Aircraft and (B) at least 20% of
the useful economic life of the Aircraft will be remaining at the end
of the Basic Term and any Fixed Renewal Term;
(ii) the estimated useful life of the Aircraft is at least 133% of
the Basic Term and any Fixed Renewal Term;
(iii) the Purchase Price of the Aircraft is no greater than the
fair market value of the Aircraft on the Delivery Date;
(iv) on the Delivery Date, the Aircraft will not require any
modifications, improvements or additions in order to be rendered
complete for its intended purpose by the Lessee;
(v) the amount payable by the Lessee upon the exercise of its
purchase option pursuant to Section 4.02(a)(F) of the Lease equals or
exceeds the currently estimated Fair Market Value of the Aircraft on
such date (taking into account inflation or deflation to such date);
and
(vi) the Aircraft is not limited use property.
(i) Insurance. Each of the Indenture Trustee, the Pass Through
Trustee, the Owner Trustee and the Owner Participant shall have received
such evidence as it deems appropriate, including, without limitation, an
independent insurance broker's report, together with certificates of
insurance from such broker, in form and substance satisfactory to the
Indenture Trustee, the Pass Through Trustee, the Owner Trustee and the
Owner Participant to establish that the insurance required by Article 13 of
the Lease is in effect.
(j) Payment of Taxes. (A) All taxes, fees, charges, assessments,
costs and other expenses then due and payable in connection with the
execution, delivery, recording and filing of all financing statements and
the documents and instruments referred to in subparagraphs (e) and (f) of
this Section 4.02, or in connection with the purchase of the Aircraft by
the Owner Trustee and the making by the Owner Participant of its equity
investment shall have been duly paid or caused to be paid in full; and (B)
all sales or use taxes and duties related to the consummation of the
transactions contemplated by the Operative Agreements on the Delivery Date
which are then due and payable shall have been duly paid in full.
(k) No Indenture Event of Default. No Indenture Event of Default or
Indenture Default has occurred and is continuing.
(l) Event of Default; Default; Event of Loss. No Default or Event
of Default under the Lease (assuming, for this purpose, that the provisions
of Article 16 of the Lease had become operative on the Certificate Closing
Date and not the Delivery Date) or Event of Loss or event, which with the
passage of time or if continued unremedied or unaltered would constitute an
Event of Loss, shall have occurred or be in existence.
(m) Governmental Compliance. All appropriate action required to
have been taken by the FAA, the SEC, or any governmental or political
agency, subdivision or instrumentality of the United States, prior to the
Delivery Date in connection with the transactions contemplated by this
Agreement shall have been taken, and all orders, permits, waivers,
authorizations, exemptions and approvals (collectively "permits") of such
entities required to be in effect on the Delivery Date in connection with
the transactions contemplated by this Agreement shall have been issued, and
all such permits shall be in full force and effect on the Delivery Date.
(n) Officer's Certificate of Lessee. On the Delivery Date, the
following statements shall be true, and the Owner Participant, the Owner
Trustee, the Pass Through Trustee and the Indenture Trustee shall have
received a certificate signed by the Vice President and Treasurer or any
other duly authorized officer of the Lessee, dated the Delivery Date,
stating that:
(i) the representations and warranties of the Lessee contained in
the Operative Agreements to which it is a party (excluding the Tax
Indemnity Agreement) and in any certificate delivered pursuant hereto
or thereto are true and correct on and as of the Delivery Date as
though made on and as of such date (except to the extent that such
representations and warranties relate solely to an earlier date, in
which case such certificate shall state that such representations and
warranties were true and correct on and as of such earlier date);
(ii) except for the matters described (i) under "Legal
Proceedings" in the Lessee's Annual Report on Form 10-K for the
fiscal year ended May 31, 1996 (as updated by Note 7 to the financial
statements included in the Lessee's Quarterly Reports on Form 10-Q
for the fiscal quarters ended August 31, 1996, November 30, 1996 and
February 28, 1997) and (ii) in the Lessee's Current Reports on Form
8-K dated June 7, 1996, August 16, 1996 and March 4, 1997, as to
which such officer will make no certification concerning the
liability of the Lessee (if any), or the effect of any adverse
determination upon the consolidated financial condition, business or
operations of the Lessee, no material adverse change has occurred in
the financial condition, business or operations of the Lessee from
that shown in the audited financial statements of the Lessee as of
May 31, 1996 and nothing has occurred which will, in the judgment of
such officer, materially adversely affect the ability of the Lessee
to carry on its business or to perform its obligations under this
Agreement and each other Operative Agreement to which it is or is to
be a party; and
(iii) no event has occurred and is continuing, or would result
from the purchase, sale, mortgage, or lease of the Aircraft, which
constitutes an Event of Loss (or event which with the passage of time
would become an Event of Loss) with respect to the Airframe or any
Engine, or a Default or an Event of Default under the Lease.
(o) Officer's Certificate of Owner Participant and Owner Participant
Guarantor. On the Delivery Date, the following statements shall be true,
and the Lessee, the Pass Through Trustee, the Owner Trustee and the
Indenture Trustee shall have received a certificate from the Owner
Participant, signed by a duly authorized officer of (i) the Owner
Participant dated the Delivery Date, stating that:
(i) the representations and warranties of the Owner Participant
contained in this Agreement, the Trust Agreement and any other
Operative Agreement (excluding the Tax Indemnity Agreement) to which
it is a party and in any certificate delivered pursuant hereto or
thereto, are true and correct on and as of the Delivery Date as
though made on and as of such date (except to the extent that such
representations and warranties relate solely to an earlier date, in
which case such certificate shall state that such representations and
warranties were true and correct on and as of such earlier date);
(ii) no Lessor's Liens attributable to the Owner Participant
exist; and
(iii) no event has occurred and is continuing which constitutes
or, with notice or lapse of time or both would constitute, due to any
action or omission on the part of the Owner Participant, an Indenture
Event of Default other than an Indenture Event of Default
attributable to a Lease Event of Default.
and (ii) from the Owner Participant Guarantor, signed by a duly authorized
officer of such Owner Participant Guarantor dated the Certificate Closing
Date, stating that the representations and warranties of such Owner
Participant Guarantor contained in its Owner Participant Guaranty and in
any certificate delivered at the closing pursuant thereto are true and
correct on and as of the Certificate Closing Date as though made on and as
of such date (except to the extent that such representations and warranties
relate solely to an earlier date, in which case such certificate shall
state that such representations and warranties were true and correct on and
as of such earlier date).
(p) Other Officer's Certificates. On the Delivery Date, the
following statements shall be true, and the Owner Participant, the Lessee,
the Pass Through Trustee, the Owner Trustee, the Subordination Agent and
the Indenture Trustee shall have received a certificate from each of SSB
and the Owner Trustee (in the case of the Lessee, the Pass Through Trustee,
the Owner Participant, the Subordination Agent and the Indenture Trustee),
FSB and the Indenture Trustee (in the case of the Lessee, the Pass Through
Trustee, the Owner Participant, the Subordination Agent and the Owner
Trustee), FSB and the Pass Through Trustee (in the case of the Lessee, the
Indenture Trustee, the Owner Participant, the Subordination Agent and the
Owner Trustee) and FSB and the Subordination Agent (in the case of the
Lessee, the Indenture Trustee, the Owner Participant, the Pass Through
Trustee and the Owner Trustee) signed by a duly authorized officer of SSB
and FSB, respectively, dated the Delivery Date, stating with respect to SSB
and the Owner Trustee, with respect to FSB and the Indenture Trustee, with
respect to FSB and the Pass Through Trustee or with respect to FSB and the
Subordination Agent, as the case may be, that:
(i) the representations and warranties of SSB in its individual
capacity and as Owner Trustee, of FSB in its individual capacity and
as Indenture Trustee, of FSB in its individual capacity and as Pass
Through Trustee or of FSB in its individual capacity and as
Subordination Agent contained in this Agreement, the Lease, the Trust
Agreement and the Indenture and in any certificate delivered pursuant
hereto or thereto are true and correct on and as of the Delivery Date
as though made on and as of such date (except to the extent that such
representations and warranties relate solely to an earlier date, in
which case such certificate shall state that such representations and
warranties were true and correct on and as of such earlier date);
(ii) to the best of its knowledge, no event has occurred and is
continuing, which constitutes or which, but for the lapse of time or
the giving of notice, or both, would constitute, due to any action or
omission on the part of SSB in its individual capacity or as Owner
Trustee, of FSB in its individual capacity or as Indenture Trustee,
of FSB in its individual capacity or as Pass Through Trustee, an
Event of Default or an Indenture Event of Default or of FSB in its
individual capacity or as Subordination Agent, an Event of Default or
an Indenture Event of Default; and
(iii) there are no Lessor's Liens attributable to the Owner
Trustee or SSB and no Indenture Trustee's Liens affecting the Trust
Indenture Estate or the Lessor's Estate or any part thereof.
(q) Release of Debt Portion. The Indenture Trustee shall have
released the Debt Portion from (or such lesser amount as may then be held
in) the Collateral Account or if the proviso to Section 3.02(a) is
applicable, then the Lessee shall have made the payment required to be made
to AVSA pursuant to such proviso.
Notwithstanding anything else to the contrary in this Section 4.02, it shall
not be a condition precedent to the obligations of the Indenture Trustee, the
Pass Through Trustee or the Subordination Agent that the conditions in Section
4.02(n) and (o) be satisfied if the Lessee certifies that the failure to
fulfill such condition precedent is not reasonably likely to materially
adversely affect the holders of Pass Through Certificates and, in the event of
such failure, there has been delivered to the Indenture Trustee written
confirmation from both Moody's and S&P of the rating on any class of Pass
Through Certificates.
Section 4.03. Opinion of Special Aviation Counsel Upon Registration.
Promptly upon the registration of the Aircraft and the filing and, where
appropriate, recordation pursuant to the Transportation Code, of AVSA's FAA
Bill of Sale, the Trust Agreement, the Lease (with the Lease Supplement
covering the Aircraft, the Indenture and the Indenture and Security Agreement
Supplement covering the Aircraft attached as exhibits) and the Indenture (with
the Indenture and Security Agreement Supplement covering the Aircraft attached
as an exhibit), the Lessee shall cause Special Aviation Counsel to deliver to
the Owner Participant, the Lessee, the Owner Trustee, the Pass Through Trustee
and the Indenture Trustee an opinion as to (i) the due registration of the
Aircraft in the name of the Owner Trustee, (ii) the due recording pursuant to
the Transportation Code of AVSA's FAA Bill of Sale, the Trust Agreement, the
Lease (with such Lease Supplement, the Indenture and such Indenture and
Security Agreement Supplement attached as exhibits), and the Indenture (with
such Indenture and Security Agreement Supplement attached as an exhibit), and
(iii), subject to customary qualifications, the lack of any intervening
documents with respect to the Aircraft.
ARTICLE 5
CONDITIONS PRECEDENT TO LESSEE'S OBLIGATIONS
Section 5.01. Conditions Precedent to Lessee's Obligations. The
Lessee's obligation to participate in the transactions contemplated hereby on
the Certificate Closing Date is subject to the conditions that, prior to or on
the Certificate Closing Date, the Lessee shall have received the certificates
and other documents which are referred to in, or the opinions to be addressed
to it under, as the case may be, paragraphs (d), (g)(ii)-(v), (i), (j),
(k)(ii)-(vi) of Section 4.01 hereof and the Underwriters shall have made
available the amounts required to be paid by them pursuant to Section 2.01
hereof, and the Lessee's obligation to participate in the transactions
contemplated hereby on the Delivery Date, is subject to the conditions that,
on or prior to the Delivery Date, the Lessee shall have received the documents
which are referred to in, or the opinions to be addressed to it under, as the
case may be, paragraphs (c) and (d)(ii)-(v) of Section 4.02 hereof and the
Indenture Trustee shall have released the Debt Portion from (or such lesser
amount as may then be held in) the Collateral Account.
ARTICLE 6
LESSEE'S REPRESENTATIONS, WARRANTIES AND COVENANTS
Section 6.01. Lessee's Representations and Warranties. The Lessee
represents and warrants to the Owner Participant, the Owner Trustee (in its
individual capacity and as Owner Trustee), the Pass Through Trustee (in its
individual capacity and as Pass Through Trustee), each Liquidity Provider and
the Indenture Trustee (in its individual capacity and as Indenture Trustee)
that, on the date hereof and as of the Certificate Closing Date and the
Delivery Date (unless any such representation is specifically made as of one
date):
(a) the Lessee is a corporation duly organized and validly existing
and is in good standing under the laws of the State of Delaware with its
principal place of business and chief executive office (as such terms are
used in Article 9 of the Uniform Commercial Code) in Memphis, Tennessee,
and is duly qualified to do business as a foreign corporation and is in
good standing in all jurisdictions in which it has intrastate routes, or
offices or major overhaul facilities or in which other activities of the
Lessee require such qualification;
(b) the Lessee has full power, authority and legal right to conduct
its business and operations as currently conducted and to own or hold under
lease its Properties and to enter into and perform its obligations under
this Agreement, the other Operative Agreements to which it is a party, the
Pass Through Agreement and the Series Supplements (the "Lessee Documents");
(c) the Lessee is an "air carrier" within the meaning of the
Transportation Code and a holder of a certificate under Sections 41102(a)
and 41103 of the Transportation Code and a "citizen of the United States"
within the meaning of Section 40102(a)(15) of the Transportation Code
holding an "air carrier operating certificate" issued under Chapter 447 of
the Transportation Code for aircraft capable of carrying ten (10) or more
individuals or 6,000 pounds or more of cargo, and each such certificate is
in full force and effect;
(d) the Lessee possesses all necessary certificates, franchises,
licenses, permits, rights and concessions and consents (collectively
"permits") which are material to the operation of the routes flown by it
and the conduct of its business and operations as currently conducted and
each such permit is in full force and effect;
(e) the execution, delivery and performance of the Lessee Documents
by the Lessee have been duly authorized by all necessary corporate action
on the part of the Lessee and do not require any stockholder approval, or
approval or consent of any trustee or holder of any indebtedness or
obligations of the Lessee, and each such document has been duly executed
and delivered or, in the case of the Operative Agreements identified in
Section 4.02(c) hereof, will on the Delivery Date be executed and delivered
by the Lessee and constitutes (or will constitute, as the case may be) the
legal, valid and binding obligations of the Lessee enforceable against it
in accordance with the terms thereof except as such enforceability may be
limited by bankruptcy, insolvency, moratorium, reorganization or other
similar laws or equitable principles of general application to or affecting
the enforcement of creditors' rights generally (regardless of whether
enforceability is considered in a proceeding in equity or at law);
(f) no authorization, consent or approval of or other action by, and
no notice to or filing with, any United States federal or state
governmental authority or regulatory body (other than the SEC) is required
for the execution, delivery or performance by the Lessee of the Lessee
Documents or for the use and maintenance of the Aircraft except for such
registrations, applications and recordings referred to in the opinions of
Special Aviation Counsel delivered or to be delivered pursuant to Sections
4.02(d)(iii) and 4.03 hereof and except for the filings referred to in
Sections 4.01(f) and 4.02(f) hereof, all of which shall have been duly
obtained or made and shall be in full force and effect on and as of the
Certificate Closing Date or the Delivery Date, or as contemplated by said
Sections;
(g) neither the execution, delivery or performance by the Lessee of
the Lessee Documents nor compliance with the terms and provisions hereof or
thereof, conflicts or will conflict with or results or will result in a
breach or violation of any of the terms, conditions or provisions of, or
will require any consent (other than the Consent and Agreement, the AVSA
Consent and Agreement, the Engine Consent and the Consent and Guaranty) or
approval under, any law, governmental rule or regulation or the charter
documents, as amended, or bylaws, as amended, of the Lessee or any order,
writ, injunction or decree of any court or governmental authority against
the Lessee or by which it or any of its Properties is bound or any
indenture, mortgage or contract or other agreement or instrument to which
the Lessee is a party or by which it or any of its Properties is bound, or
constitutes or will constitute a default thereunder or results or will
result in the imposition of any Lien upon any of its Properties;
(h) there are no pending or, to the knowledge of the Lessee,
threatened actions, suits, investigations or proceedings (whether or not
purportedly on behalf of the Lessee) against or affecting the Lessee or any
of its Property before or by any court or administrative agency which (A)
involve the Aircraft, (B) except for the matters described (i) under "Legal
Proceedings" in the Lessee's Annual Report on Form 10-K for the fiscal year
ended May 31, 1996 (as updated by Note 7 to the financial statements
included in the Lessee's Quarterly Reports on Form 10-Q for the fiscal
quarters ended August 31, 1996, November 30, 1996 and February 28, 1997)
and (ii) in the Lessee's Current Reports on Form 8-K dated June 7, 1996,
August 16, 1996 and March 4, 1997, as to which no representation is made
concerning the Lessee's liability (if any) or the effect of any adverse
determination upon the consolidated financial condition, business or
operations of the Lessee, if adversely determined, would materially and
adversely affect the consolidated financial condition, business or
operations of the Lessee, or (C) if adversely determined would adversely
affect the ability of the Lessee to perform its obligations under the
Lessee Documents;
(i) the Lessee has filed or caused to be filed all tax returns which
are required to be filed and has paid or caused to be paid all taxes shown
to be due and payable pursuant to such returns or pursuant to any
assessment received by the Lessee (other than assessments the payment of
which is being contested in good faith by the Lessee by appropriate
proceedings that do not involve any material danger of sale, forfeiture or
loss of the Aircraft or any part thereof), and the Lessee has no knowledge
of any related actual or proposed deficiency or additional assessment which
either in any case or in the aggregate would materially adversely affect
the Lessee's consolidated financial condition (other than, in any such case,
assessments, the payment of which is being contested in good faith by the
Lessee, as to which no representation is made concerning the Lessee's
liability (if any) or the effect of any adverse determination upon the
Lessee's consolidated financial condition);
(j) except for (A) the registration in the Owner Trustee's name of
the Aircraft pursuant to the Transportation Code to be accomplished by
filing with the FAA, of AVSA's FAA Bill of Sale, the Trust Agreement, the
Affidavits and the Application, (B) the filing with and, where appropriate,
recordation by the FAA pursuant to the Transportation Code of the
Indenture, the Indenture and Security Agreement Supplement covering the
Aircraft, the Lease and the Lease Supplement covering the Aircraft, (C) the
filing of the financing statements referred to in Sections 4.01(f) and
4.02(f) hereof and (D)(x) on the Certificate Closing Date, the taking of
possession by the Indenture Trustee of the Liquid Collateral and
maintaining possession by the Indenture Trustee thereof as contemplated in
Section 2.14(a) of the Indenture and (y) on the Delivery Date, the taking
of possession by the Indenture Trustee of the original counterpart of the
Lease and the Lease Supplement covering the Aircraft, no further action,
including any filing or recording of any document, is necessary or
advisable in order (i) to establish the Owner Trustee's title to and
interest in the Aircraft and the Lessor's Estate as against the Lessee and
any third parties, or (ii) to perfect the first security interest in and
mortgage Lien on the Trust Indenture Estate in favor of the Indenture
Trustee;
(k) on the Delivery Date, the Owner Trustee has received good and
marketable title to the Aircraft, free and clear of all Liens, except the
rights of the Lessee under the Lease and the Lease Supplement, the rights
of the Indenture Trustee under the Indenture and the beneficial interest of
the Owner Participant created by the Trust Agreement;
(l) the Lessee has heretofore delivered to the Owner Participant
true and correct copies of the Lessee's Annual Report on Form 10-K for the
fiscal year ended May 31, 1996 and its Quarterly Reports on Form 10-Q for
the fiscal quarters ended August 31, 1996, November 30, 1996 and February
28, 1997, and of the audited consolidated balance sheet of the Lessee for
the fiscal year ended May 31, 1996 and the unaudited consolidated balance
sheets of the Lessee as of August 31, 1996, November 30, 1996 and February
28, 1997, and the related consolidated statements of income, changes in
common stockholders' investment and cash flows for the fiscal year and
interim reporting periods ended on such dates, accompanied (except in the
case of such interim reporting periods) by a report thereon containing
opinions without qualification, except as therein noted, by Arthur Andersen
LLP, independent public accountants; said financial statements have been
prepared in accordance with generally accepted accounting principles
consistently applied and present fairly the financial position of the
Lessee as of such dates and the results of its operations and cash flows
for such periods and such Annual Report, Quarterly Reports and financial
statements did not, as of their respective dates of filing with the SEC,
contain any untrue statement of a material fact or omit a material fact
necessary to make the statements contained therein not misleading;
(m) with respect to ERISA:
(i) none of the Pension Plans (as defined at the end of this
Section 6.01(m)) nor their related trusts have been terminated in a
distress termination pursuant to Section 4041(c) of ERISA or by the
Pension Benefit Guaranty Corporation (together with any successor
agency or instrumentality thereto, the "PBGC") pursuant to Section
4042 of ERISA, nor have any actions been taken to so terminate any
Pension Plan or related trust and neither the Lessee nor any ERISA
Affiliate (as defined at the end of this Section 6.01(m)) has
incurred or could reasonably be expected to incur any material
liability with respect to a Pension Plan under Section 4062, 4063,
4064 or 4069 of ERISA;
(ii) there have been no "reportable events" (as such term is
defined in Section 4043(b) of ERISA) with respect to any Pension Plan
which have resulted or could reasonably be expected to result in any
material liability of the Lessee or any ERISA Affiliate;
(iii) no "accumulated funding deficiency" (as such term is defined
in Section 302 of ERISA or Section 412 of the Code) exists with
respect to any Pension Plan, whether or not waived, nor has any
request for a waiver under Section 412(d) of the Code been, or is
reasonably likely to be, filed with respect to any of the Pension
Plans;
(iv) neither the Lessee nor any ERISA Affiliate has failed to make
any contribution or payment to any Pension Plan which has resulted or
could reasonably be expected to result in the imposition of a Lien
under Section 302(f) of ERISA or Section 412(n) of the Code;
(v) all Pension Plans are in compliance in all material respects
with all applicable provisions of ERISA and the Code;
(vi) neither the Lessee nor any ERISA Affiliate has incurred or is
reasonably likely to incur any material withdrawal liability pursuant
to Section 4201 or 4204 of ERISA or any material liability under
Section 515 of ERISA;
(vii) to the best of the Lessee's knowledge, neither the Lessee
nor any ERISA Affiliate has engaged in a "prohibited transaction"
(within the meaning of Section 4975 of the Code or Section 406 of
ERISA) which could reasonably be expected to subject the Lessee to
the tax or penalties on prohibited transactions imposed by Section
4975 of the Code or Section 502 of ERISA; and
(viii) assuming the truth of the representations contained in
Section 7.09 hereof and compliance with Section 10.06 of the
Indenture, the execution and delivery of this Agreement and the other
Operative Agreements and the consummation of the transactions
contemplated hereby and thereby will not involve any transaction
which is prohibited by Section 406 of ERISA or in connection with
which a tax could be imposed pursuant to Section 4975 of the Code.
No part of the funds to be used by the Lessee in satisfaction of its
obligations under this Agreement or any other of the Operative
Agreements to which the Lessee is a party or to which the Lessee is
bound are the assets of any employee benefit plan subject to Title I
of ERISA, or any individual retirement account or an employee benefit
plan subject to Section 4975 of the Code;
as used in this Section 6.01(m), the term "Pension Plan" means an employee
pension benefit plan as defined in Section 3(2) of ERISA (other than a
multiemployer plan as defined in Section 4001(a)(3) of ERISA) which is
covered by Title IV of ERISA or subject to the minimum funding standards
under Section 412 of the Code and which is maintained, or contributed to,
by the Lessee or any ERISA Affiliate, and the term "ERISA Affiliate" means
any entity which together with the Lessee would be treated as a single
employer under Section 414(b), (c), (m) or (o) of the Code;
(n) the Lessee is a Citizen of the United States;
(o) except for the filings referred to in Sections 4.01(f), 4.02(e)
and 4.02(f) hereof, no governmental approval of any kind is required of the
Owner Participant or for the Owner Participant's execution of or
performance under this Agreement or any agreement contemplated hereby by
reason of any fact or circumstance of the Lessee, the nature of the
Aircraft or the Lessee's proposed operations or use of the Aircraft;
(p) on the Delivery Date, all premiums with respect to the insurance
required to be provided by the Lessee on or prior to the Delivery Date
under Article 13 of the Lease have been paid by the Lessee;
(q) on the Delivery Date, all sales or use taxes relating to the
sale of the Aircraft by AVSA to the Owner Trustee which are then or were
theretofore due shall have been paid;
(r) the Lessee is not in default under any mortgage, deed of trust,
indenture, lease or other instrument or agreement to which the Lessee is a
party or by which it or any of its Properties or assets may be bound, or in
violation of any applicable law, which default or violation would have a
material adverse effect on the financial condition, business or operations
of the Lessee or its ability to perform any of its obligations under the
Lessee Documents;
(s) no Default or Event of Default or Event of Loss or event, which
with the passage of time or if continued unremedied or unaltered would
constitute an Event of Loss, has occurred or exists;
(t) on the Delivery Date, the Aircraft will be in such condition so
as to enable the airworthiness certificate of such Aircraft to be in good
standing under the Transportation Code; the Aircraft will have been duly
certificated by the FAA as to type and airworthiness; there will be in
effect with respect to the Aircraft a current and valid airworthiness
certificate issued by the FAA pursuant to the Transportation Code; and
there is no fact known to the Lessee which materially adversely affects the
value, utility or condition of the Aircraft;
(u) on the Certificate Closing Date and the Delivery Date, the
Lessee shall not be in default in the performance of any term or condition
of the Purchase Agreement, the Purchase Agreement Assignment, the Engine
Warranty Assignment and the GTA and the aggregate amount of loans shall not
exceed the Debt Portion;
(v) neither the Lessee nor any subsidiary of the Lessee is an
"investment company" or a company "controlled by an investment company"
within the meaning of the Investment Company Act of 1940, as amended;
(w) on the Delivery Date, the Aircraft will, upon delivery, be fully
equipped to operate in commercial service and will comply with all
governmental requirements governing such service; and
(x) there are no broker's or underwriter's fees payable on behalf
of the Lessee in connection with the transactions contemplated in the
Operative Agreements other than those of the Underwriters and First
Chicago Leasing Corporation referred to in Article 10 hereof.
Section 6.02. Offering by Lessee. The Lessee represents and
warrants that it has authorized no one to act on its behalf in connection with
the offer or sale of any interest in the Lessor's Estate or the Trust
Agreement other than First Chicago Leasing Corporation. Neither the Lessee
nor, based on representations of First Chicago Leasing Corporation, anyone
acting on its behalf has directly or indirectly offered any interest in the
Lessor's Estate or the Trust Agreement, or similar interests, for sale to, or
solicited any offer to acquire any of the same from, anyone other than the
Owner Participant and no more than 15 other accredited investors (as such term
is defined in Regulation D promulgated under the Securities Act of 1933, as
amended).
Section 6.03. Certain Covenants of Lessee. The Lessee covenants and
agrees with the Owner Participant, the Owner Trustee (in its individual
capacity and as Owner Trustee), the Pass Through Trustee (in its individual
capacity and as Pass Through Trustee) and the Indenture Trustee (in its
individual capacity and as Indenture Trustee) as follows:
(a) The Lessee will cause to be done, executed, acknowledged and
delivered at the Lessee's cost and expense all such further acts,
conveyances and assurances as the Owner Trustee, the Indenture Trustee, the
Pass Through Trustee or the Owner Participant shall reasonably require for
accomplishing the purposes of this Agreement, the Trust Agreement, the
Purchase Agreement, the Purchase Agreement Assignment, the GTA, the Engine
Warranty Assignment, the Indenture, the Indenture and Security Agreement
Supplement, the Tax Indemnity Agreement, the Lease and the Lease Supplement
and the other Operative Agreements to which it is a party. Without
limiting the generality of this Section 6.03(a), the Lessee will promptly
take, or cause to be taken, at the Lessee's cost and expense, such action
with respect to the recording, filing, re-recording and re-filing of the
Indenture, each Indenture and Security Agreement Supplement, the Lease,
each Lease Supplement and any financing statements or other instruments as
may be necessary, or as requested by the Indenture Trustee and appropriate,
to maintain the perfection of the first security interest and the Lien
created by the Indenture, and the Owner Trustee's title to and interest in
the Aircraft and the Lessor's Estate as against the Lessee and any third
parties or if the Lessee cannot take, or cause to be taken, such action,
will furnish to the Indenture Trustee and the Owner Trustee timely notice
of the necessity of such action, together with such instruments, in
execution form, and such other information as may be required to enable
either of them to take such action at the Lessee's cost and expense in a
timely manner.
(b) From and after the Delivery Date, the Lessee shall maintain the
certificates referred to in Section 7.01 of the Lease and shall cause the
Aircraft to be duly registered, and at all times to remain duly registered,
in the name of the Owner Trustee, under the Transportation Code, and shall
furnish to the Owner Trustee such information as may be required to enable
the Owner Trustee to make application for such registration; provided,
however, that the Owner Participant, the Owner Trustee and the Indenture
Trustee agree that if at any time after December 31, 2004, so long as no
Event of Default shall have occurred and be continuing, the Lessee has
requested their consent to the registration of the Aircraft in the name of
the Owner Trustee (or, if appropriate under the laws of such
jurisdiction of reregistration, in the name of the Lessee or a sublessee
as a "lessee" or a "sublessee"), at the Lessee's expense, in a country
listed in Schedule III hereto with which the United States then
maintains normal diplomatic relations (and which is not then
experiencing war or substantial civil unrest), the Owner Participant,
the Owner Trustee and the Indenture Trustee upon receipt by the Owner
Participant, the Owner Trustee and the Indenture Trustee of the
assurances and opinion described below, shall not unreasonably withhold
their consent to such change in registration (it being agreed, without
limitation, that the inability of the Lessee to deliver such assurances
or such opinion shall constitute reasonable grounds to withhold such
consent).
As a condition to any change in the registration of the Aircraft, the
Owner Participant, the Owner Trustee in its individual and trust capacities,
and the Indenture Trustee shall have received:
(i) assurances satisfactory to them:
(A) to the effect that the insurance provisions of the Lease have
been and will be complied with and are and shall be in full force and
effect upon such change of registry;
(B) as to the continuation of the Lien of the Indenture as a
first priority, duly perfected Lien on the Aircraft;
(C) that the Owner Trustee's right, title and interest in and to
the Aircraft is recognized and fully enforceable in the new
jurisdiction of registry, that the rights of the Owner Trustee in and
to the Aircraft will not be impaired in such new jurisdiction of
registry and that the new jurisdiction of registry will give effect
to the title and registry of the Aircraft therein substantially to
the same extent as does the Government;
(D) that such new country of registry (x) would provide
substantially equivalent protection for the rights of owner
participants, lessors or lenders in similar transactions as provided
under United States law (except that, in the absence of restrictions
under the laws of such country on rights and remedies of lessors and
secured parties similar to those imposed by Sections 362 and 363 of
the Bankruptcy Code, rights and remedies similar to those available
under Section 1110 of the Bankruptcy Code shall not be required) and
(y)(i) if such change in registration is made other than in
connection with a sublease permitted under Section 7.02(a)(i) of the
Lease, imposes maintenance standards at least comparable to those of
the FAA, and (ii) if such change in registration is made in
connection with a sublease permitted under Section 7.02(a)(i) of the
Lease, imposes maintenance standards in conformity with those set
forth in Section 7.02(a)(i) of the Lease;
(E) that import and export certificates and any exchange permits
necessary to allow all Rent and other payments provided for under the
Lease, if required, shall have been procured at the Lessee's own cost
and expense by the Lessee;
(F) that the Lessee shall have effected or caused to be effected
at the Lessee's own cost and expense all recordings and filings that
are required to perfect the Lien of the Indenture;
(G) to the effect that the original indemnities (and any
additional indemnities for which the Lessee is then willing to
enter into a binding agreement to indemnify) in favor of the Owner
Participant, the Owner Trustee (in its individual capacity and as
trustee under the Trust Agreement), the Indenture Trustee (in its
individual capacity, and as trustee under the Indenture), the Pass
Through Trustee (in its individual capacity, and as trustee under
the Pass Through Agreement) and the other Indemnitees under this
Agreement, the Indenture, the Pass Through Agreement and (in the
case of the Owner Participant only) the Tax Indemnity Agreement,
afford each such party substantially the same protection as
provided prior to such change of registry;
(H) that such change will not result in the imposition of, or
increase in the amount of, any Tax (which, for this purpose, includes
the loss of any tax benefits assumed by the Owner Participant to be
available to it based upon the assumptions set forth in Section 2 of
the Tax Indemnity Agreement) for which the Lessee has not agreed to
indemnify the Owner Participant to its reasonable satisfaction, the
Indenture Trustee, the Pass Through Trustee, the Owner Trustee (or
any successor, assign or Affiliate thereof) and the Trust Estate;
(I) that any value added tax, customs duty, tariff or similar
governmental charge relating to the change in jurisdiction of
registration of the Aircraft shall have been paid in full or
adequately provided for by the Lessee to the satisfaction of the
Owner Trustee, the Indenture Trustee and the Owner Participant;
(J) of the payment by the Lessee of any reasonable fees and
expenses of the Owner Participant, the Owner Trustee, the Indenture
Trustee and the Pass Through Trustee in connection with such change
of registry, including any reasonable attorneys' fees and expenses;
(K) that duties and tariffs, if applicable, shall have been paid
for by the Lessee;
(L) as to the continuation of the Lien of the Indenture as a
first priority, duly perfected Lien on the Aircraft and the Trust
Indenture Estate, that all recordings and filings required to so
perfect the Lien of the Indenture have been duly effected, and that
no Liens (except Liens permitted under Section 6.01 of the Lease)
shall arise by reason of such registration; and
(M) that appropriate deregistration powers of attorney in favor of
the Owner Trustee and the Indenture Trustee have been executed and
delivered by the Lessee and any sublessee and, if necessary or
desirable for the effectiveness thereof, filed with the relevant
aeronautics authority; and
(ii) a favorable opinion of counsel (reasonably satisfactory to the
Owner Trustee, the Indenture Trustee and the Owner Participant) in the new
jurisdiction of registry, addressed and reasonably satisfactory to such
parties in scope, form and substance, to the effect:
(A) that the terms (including, without limitation, the governing
law, service-of-process and jurisdictional-submission provisions
thereof) of the Lease and the Indenture are legal, valid, binding and
enforceable in such jurisdiction against the Lessee, any sublessee,
the Owner Trustee and the Indenture Trustee, respectively;
(B) that it is not necessary for the Owner Participant, the Owner
Trustee, the Indenture Trustee or the Pass Through Trustee to
register or qualify to do business or meet other requirements not
already met in such jurisdiction in connection with the registration
in the new jurisdiction (and the filing and/or recordation therein of
the Indenture or the Lease) and the exercise of any rights or
remedies with respect to the Aircraft pursuant to the Lease or the
Indenture or in order to maintain such registration and the Lien of
the Indenture;
(C) that the courts of such jurisdiction would provide
substantially equivalent protection to the Lessor, the Owner
Participant, the Pass Through Trustee and the Indenture Trustee as
provided under United States law (with the exception described in
paragraph (b)(i)(D)(x) of this Section 6.03) in respect of the
transactions contemplated hereby, including, without limitation, the
remedies provided in the Indenture and the Lease;
(D) that there is no tort liability of the beneficial owner,
record owner, lessor or mortgagee of an aircraft not in possession
thereof under the laws of such jurisdiction, other than tort
liability which might reasonably have been imposed on such owner,
lessor or mortgagee under the laws of the United States or any state
thereof (it being understood that, in the event such latter opinion
cannot be given in a form satisfactory to the Owner Trustee, the
Owner Participant and the Indenture Trustee, such opinion shall be
waived, if insurance reasonably satisfactory to the Owner
Participant, the Indenture Trustee and the Owner Trustee, in its
individual capacity, is provided, at the Lessee's expense, to cover
such risk and the Lessee undertakes to keep such insurance in full
force and effect);
(E) that the laws of such jurisdiction will not impair the rights
of the Lessor in and to the Aircraft or under the Lease and (unless
the Lessee shall have agreed to provide insurance reasonably
satisfactory to the Indenture Trustee and the Owner Participant
covering the risk of requisition of use of the Aircraft by the
government of registry of the Aircraft) require fair compensation by
the government of such jurisdiction payable in currency freely
convertible into United States dollars for the loss of use of the
Aircraft in the event of such requisition;
(F) that the Owner Trustee's title to the Aircraft is recognized
and fully enforceable in such jurisdiction, that such jurisdiction
will give effect to the title of the Aircraft therein substantially
to the same extent as does the Government, and that the Lien of the
Indenture shall continue as a first priority, duly perfected lien on
the Aircraft;
(G) to such further effect with respect to such other matters as
the Owner Participant, the Owner Trustee, or the Indenture Trustee may
reasonably request; and
(H) the Lien of the Indenture continues to constitute a first
priority, duly perfected Lien on the Aircraft.
(c) The Lessee shall promptly file any reports, or furnish to the
Owner Trustee and the Owner Participant such information as may be required
to enable the Owner Trustee and the Owner Participant timely to file any
reports required to be filed by the Owner Trustee as the Lessor and the
Owner Participant under the Lease with any governmental authority.
(d) The Lessee will cause the Special Aviation Counsel to file, and
where appropriate record, on the Delivery Date, AVSA's FAA Bill of Sale,
the Lease, the Lease Supplement, the Trust Agreement, the Indenture and the
Indenture and Security Agreement Supplement. The following documents shall
be filed and, where appropriate, recorded on the Delivery Date with the
Aeronautics Authority in the following order of priority: first, AVSA's
FAA Bill of Sale, second, the Application, with the Trust Agreement and the
Affidavits, third, the Indenture with the Indenture and Security Agreement
Supplement attached thereto, and fourth, the Lease with the Lease
Supplement, the Indenture and the Indenture and Security Agreement
Supplement attached thereto.
(e) The Lessee will furnish to the Owner Participant, the Owner
Trustee and the Indenture Trustee annually after the execution of this
Agreement, by March 15 of each year, commencing with the year 1998, an
opinion, reasonably satisfactory to the Owner Participant and the Indenture
Trustee, of Special Aviation Counsel, or other counsel specified from time
to time by the Lessee acceptable to the Lessor and the Indenture Trustee:
(i) stating either (1) that in the opinion of such counsel such action has
been taken with respect to the recording, filing, re-recording and
re-filing of the Lease, the Indenture, the Trust Agreement, and any
supplements to any of them and any financing statements, continuation
statements or other instruments, and all other action has been taken, as is
necessary to maintain the Owner Trustee's title to and interest in the
Aircraft and the Lessor's Estate as against the Lessee and any third
parties and to maintain the perfection of the security interests created by
said documents and reciting the details of such action, or (2) that in the
opinion of such counsel no such action is necessary to maintain such title
or the perfection of such security interests; (ii) specifying all other
action which needs to be taken during the succeeding 14 months in order to
maintain such title and the perfection of such security interests (which
the Lessee agrees timely to take); and (iii) stating that the Owner Trustee
is the owner of legal title to the Aircraft, and the Aircraft is free and
clear of all Liens, except the security interest created by the Indenture
and such as are permitted by the Lease and the Indenture.
(f) The Lessee shall at all times maintain its corporate existence
except as permitted by Section 6.03(g) hereof and all of its rights,
privileges and franchises necessary in the normal conduct of its business,
except for any corporate right, privilege or franchise (i) that it
determines, in its reasonable, good faith business judgment, is no longer
necessary or desirable in the conduct of its business and (ii) the loss of
which will not materially adversely affect or diminish the rights of the
Holders or the Owner Participant.
(g) The Lessee shall not enter into any merger or consolidation, or
convey, transfer or lease all or substantially all of its assets as an
entirety to any Person, unless the surviving corporation or Person which
acquires by conveyance, transfer or lease all or substantially all of the
assets of the Lessee as an entirety (i) is a domestic corporation organized
and existing under the laws of the United States or a political subdivision
thereof, (ii) is a Citizen of the United States, (iii) is a U.S. Air
Carrier, (iv) expressly assumes by an instrument in writing in form and
substance satisfactory to the Owner Participant, the Indenture Trustee and
the Owner Trustee all of the Lessee's obligations hereunder and under the
other Operative Agreements, and each other document contemplated hereby or
thereby and the Lessee delivers such instrument to the Indenture Trustee,
the Owner Participant and the Owner Trustee, (v) provides an opinion from
outside counsel to the Lessee which counsel shall be reasonably
satisfactory to the Owner Participant and the Indenture Trustee and which
opinion shall be reasonably satisfactory to the Owner Participant and the
Indenture Trustee, and an officer's certificate, each stating that such
merger, consolidation, conveyance, transfer or lease and the instrument
noted in clause (iv) above comply with this Section 6.03(g), that such
instrument is a legal, valid and binding obligation of, and is enforceable
against, such survivor or Person, and that all conditions precedent herein
provided for relating to such transaction have been complied with, and (vi)
immediately after such merger, consolidation or conveyance, transfer or
lease, as the case may be, the surviving company (or Person which acquires
by conveyance, transfer or lease the assets of the Lessee) is in compliance
with all of the terms and conditions of this Agreement and the Lease and
each other Operative Agreement and each other document contemplated hereby
or thereby; provided that no such merger, consolidation or conveyance,
transfer or lease shall be permitted if the same gives rise to an Event of
Default.
Upon any consolidation or merger, or any conveyance, transfer or
lease of all or substantially all of the assets of the Lessee and the
satisfaction of the conditions specified in this Section 6.03(g), the
successor corporation formed by such consolidation or into which the Lessee
is merged or the Person 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 Lessee under this Agreement and the Lease and each other
Operative Agreement and any other document contemplated hereby and thereby
to which the Lessee is a party with the same effect as if such successor
corporation had been named as the Lessee herein and therein. No such
conveyance, transfer or lease of all or substantially all of the assets of
the Lessee as an entirety shall have the effect of releasing the Lessee or
any successor corporation which shall theretofore have become the Lessee
hereunder in the manner prescribed in this Section 6.03(g) from its
liability hereunder or under the other Operative Agreements. Nothing
contained herein shall permit any lease, sublease, or other arrangement for
the use, operation or possession of the Aircraft except in compliance with
the applicable provisions of the Lease.
(h) The Lessee agrees to give prompt written notice to the Owner
Participant, the Owner Trustee and the Indenture Trustee of any change in
the address of its chief executive office (as such term is used in Section
9-103(3) of the Tennessee Uniform Commercial Code) or of any change in its
corporate name.
(i) The Lessee agrees to furnish to the Owner Participant, the
Lessor and the Indenture Trustee:
(A) as soon as available, but in any event within one hundred
twenty (120) days after the end of each fiscal year of the Lessee, a
consolidated balance sheet as of the end of such fiscal year, and the
related consolidated statements of income, common stockholders'
equity, retained earnings and cash flows of the Lessee for the fiscal
year then ended as prepared and certified by the Lessee's independent
certified public accountants, including their opinion;
(B) within sixty (60) days after the end of the first, second and
third quarterly accounting periods in each fiscal year of the Lessee,
a consolidated balance sheet of the Lessee prepared by it as of the
close of the accounting period then ended, together with the related
consolidated statements of income, retained earnings and cash flows
for such accounting period certified by the chief accounting officer
or a financial vice president of the Lessee;
(C) promptly upon their general transmission, copies of all
reports and statements furnished by the Lessee to its stockholders;
(D) promptly after filing with the SEC, copies of the Lessee's
Annual Reports on Form 10-K (including all corresponding annual
reports to shareholders), Quarterly Reports on Form 10-Q and, if
requested, any registration statement or prospectus filed by the
Lessee with any securities exchange or with the SEC;
(E) promptly upon (and in any event within five (5) Business Days
after) any officer of the Lessee obtaining knowledge of any condition
or event which constitutes a Default or an Event of Default, an
officer's certificate specifying the nature and period of existence
thereof and what action the Lessee has taken or is taking or proposes
to take with respect thereto;
(F) from time to time, such other financial information as the
Lessor, the Owner Participant or the Indenture Trustee may
reasonably request.
Concurrently with the delivery of the financial statements referred
to in clause (A) above, the Lessee shall deliver to the Lessor, the Owner
Participant, the Indenture Trustee and the Pass Through Trustee a certificate
of the Lessee, signed by any one of the President, the Chief Financial
Officer, the General Counsel, the Treasurer or the principal accounting
officer of the Lessee, stating that the signer, or an employee reporting to
same, is familiar with the relevant terms of this Agreement and the Lease and
the signer has reviewed, or has caused to be made under such Person's
supervision a review, of the activities of the Lessee and that, to the best of
his or her knowledge, there does not exist any Default or any Event of Default
or if a Default or an Event of Default exists or did exist, specifying the
nature thereof, the period of existence thereof and what action the Lessee has
taken or proposes to take with respect thereto.
Section 6.04. Survival of Representations and Warranties. The
representations and warranties of the Lessee provided in Sections 6.01 and
6.02 hereof and in any other Operative Agreement shall survive the Closings
hereunder and the delivery of the Aircraft and the expiration or other
termination of this Agreement and the other Operative Agreements.
ARTICLE 7
OTHER PARTIES' REPRESENTATIONS, WARRANTIES AND COVENANTS
Section 7.01. Acquisitions and Offerings of Interests in Lessor's
Estate. (a) [Reserved]
(b) Owner Participant. The Owner Participant represents and
warrants that its interest in the Lessor's Estate and the Trust Agreement is
being acquired by it for its own account and not with a view to resale or
distribution thereof; provided, however, that the disposition by the Owner
Participant of its interest in the Lessor's Estate and the Trust Agreement
shall, subject to the terms and provisions of Section 7.03(d) hereof (except
as provided in clause (ii) of Section 3.05(a) hereof), at all times be within
its control and the foregoing representation shall not limit the Owner
Participant's right to transfer or sell such interests pursuant to the terms
of this Agreement. Neither the Owner Participant nor anyone authorized to act
on its behalf has directly or indirectly offered any interest in the Lessor's
Estate or the Trust Agreement, or in any similar security, for sale to, or
solicited any offer to acquire any of the same from, anyone. The Owner
Participant further represents and warrants that neither it nor anyone
authorized to act on its behalf has made or will make any offer, solicitation
or sale of any interest in the Lessor's Estate or the Trust Agreement in
violation of the provisions of Section 5 of the Securities Act of 1933, as
amended. No representation in this Section 7.01(b) shall include any action
or inaction of the Lessee, First Chicago Leasing Corporation, the
Subordination Agent, the Underwriters or any Affiliates of any thereof whether
or not such action or inaction is purportedly on behalf of the Owner Trustee,
the Owner Participant or any of their Affiliates.
Section 7.02. Citizenship. (a) Generally. Each of the Owner
Trustee, in its individual capacity and as Trustee, and the Owner Participant
severally represents and warrants that it is or will be a Citizen of the
United States on the Delivery Date. If the Owner Participant or the Owner
Trustee in its individual capacity does not comply with the requirements of
this Section 7.02, the Owner Trustee, the Indenture Trustee and the Owner
Participant hereby agree that a Default or an Event of Default shall not be
deemed to have occurred and be continuing under the Lease due to
non-compliance by the Lessee with the registration requirements in the Lease
occasioned by the noncompliance of the Owner Participant or the Owner Trustee.
(b) Owner Trustee. The Owner Trustee, in its individual capacity,
covenants that if at any time on or after the Delivery Date it shall have
actual knowledge that it has ceased to be a Citizen of the United States, it
will resign immediately as the Owner Trustee if such citizenship is necessary
under the Transportation Code as in effect at such time or, if it is not
necessary under the Transportation Code as in effect at such time, if it is
informed in writing by the Lessee, the Indenture Trustee or the Owner
Participant that such lack of United States citizenship would have any adverse
effect on the Lessee, the Indenture Trustee, the Holders or the Owner
Participant. The Owner Trustee, in its individual capacity, further covenants
that if at any time it appears reasonably probable that it will cease to be a
Citizen of the United States based on information that is (i) known to a
Responsible Officer or (ii) generally known to the public, it will promptly so
notify, to the extent permitted by law, all parties to this Agreement.
(c) Owner Participant. The Owner Participant agrees, solely for the
benefit of the Lessee, the Pass Through Trustee, the Indenture Trustee and the
Owner Trustee, that if at any time on or after the Delivery Date when the
Aircraft is registered or the Lessee proposes to register the Aircraft in the
United States (i) either it shall cease to be, or an event which has been
publicly disclosed has occurred of which the Owner Participant has knowledge
and which will cause the Owner Participant to cease to be, a Citizen of the
United States and (ii) the Aircraft shall or would therefore become ineligible
for registration in the name of the Owner Trustee under the Transportation
Code and regulations then applicable thereunder, then the Owner Participant
shall give notice thereof to the Lessee, the Owner Trustee and the Indenture
Trustee and shall (at its own expense and without any reimbursement or
indemnification from the Lessee) immediately (and in any event within a period
of 20 days) (x) effect a voting trust or other similar arrangement, (y)
transfer in accordance with the terms of this Agreement and the Trust
Agreement all its rights, title and interest in and to such Trust Agreement,
the Lessor's Estate and this Agreement, or (z) take any other alternative
action that would prevent any deregistration, or maintain or permit the United
States registration, of the Aircraft. It is agreed that the Owner Participant
shall be liable to pay promptly on request (A) to each of the other parties
hereto any actual damages (but not consequential damages) suffered by any such
other party to the extent the same shall result from the representation and
warranty of the Owner Participant in the first sentence of Section 7.02(a)
hereof proving to be untrue as of the Delivery Date; and (B) to the Lessee,
the Indenture Trustee or the Pass Through Trustee for any damages actually
(but not consequentially) incurred by the Lessee, the Indenture Trustee and
the Pass Through Trustee as a result of the Owner Participant's failure to
comply with its obligations pursuant to the first sentence of this Section
7.02(c); provided, that, the foregoing shall not restrict the Pass Through
Trustee or the Indenture Trustee from asserting against the Owner Participant
any damages actually incurred by the holders of any Pass Through Certificates.
Each party hereto agrees, upon the request and at the sole expense of the
Owner Participant, to cooperate with the Owner Participant in complying with
its obligations under the provisions of the first sentence of this Section
7.02(c), but without any obligation on the part of such other party to take
any action believed by it in good faith to be unreasonably burdensome to such
party or materially adverse to its business interests.
Section 7.03. Representations, Warranties and Covenants of Owner
Participant. (a) Representations, Warranties and Covenants. In addition to
and without limiting its other representations and warranties provided for in
this Article 7, the Owner Participant represents and warrants on the date
hereof and as of the Certificate Closing Date and the Delivery Date that:
(i) it is a corporation duly incorporated and validly existing in
good standing under the laws of the State of Delaware and it has full
corporate power, authority and legal right to carry on its present business
and operations, to own or lease its Properties and to enter into and to
carry out the transactions contemplated by this Agreement, the Tax
Indemnity Agreement, the Trust Agreement and the other Operative Agreements
to which it is party;
(ii) the execution, delivery and performance by it of this
Agreement, the Tax Indemnity Agreement, and the Trust Agreement and the
other Operative Agreements to which it is party have been duly authorized
by all necessary corporate action on its part and, assuming the accuracy of
the Lessee's representations in Section 6.01(o) hereof, do not require any
governmental approvals that would be required to be obtained by the Owner
Participant;
(iii) based on the representations, warranties and covenants
contained in Sections 6.01(m)(viii), 6.02 and 7.09 hereof and compliance
with Section 10.06 of the Indenture, neither the execution, delivery or
performance by the Owner Participant of this Agreement, the Tax Indemnity
Agreement, and the Trust Agreement and the other Operative Agreements to
which it is party nor compliance with the terms and provisions hereof or
thereof, conflicts or will conflict with or results or will result in a
breach or violation of any of the terms, conditions or provisions of, or
will require any consent or approval under any law, governmental rule or
regulation applicable to the Owner Participant or the charter documents,
as amended, or bylaws, as amended, of the Owner Participant or any
order, writ, injunction or decree of any court or governmental authority
against the Owner Participant or by which it or any of its Properties is
bound or any indenture, mortgage or contract or other agreement or
instrument to which the Owner Participant is a party or by which it or
any of its Properties is bound, or constitutes or will constitute a
default thereunder or results or will result in the imposition of any
Lien upon any of its Properties;
(iv) this Agreement, the Tax Indemnity Agreement and the Trust
Agreement and the other Operative Agreements to which it is party have been
or on the Certificate Closing Date will be duly executed and delivered by
the Owner Participant and constitute or on the Certificate Closing Date
will constitute the legal, valid and binding obligation of the Owner
Participant enforceable against it in accordance with their terms except as
such enforceability may be limited by bankruptcy, insolvency, moratorium,
reorganization or other similar laws or equitable principles of general
application to or affecting the enforcement of creditors' rights
(regardless of whether enforceability is considered in a proceeding in
equity or at law);
(v) it is not in default under any mortgage, deed of trust,
indenture, lease or other instrument or agreement to which the Owner
Participant is a party or by which it or any of its Properties may be
bound, or in violation of any applicable law, which default or violation
would have a material adverse effect on the financial condition, business
or operations of the Owner Participant or an adverse effect on the ability
of the Owner Participant to perform its obligations under this Agreement
and the other Operative Agreements to which it is or is to be a party;
(vi) there are no pending or, to the knowledge of the Owner
Participant, threatened actions, suits, investigations or proceedings
against the Owner Participant before any court, administrative agency or
tribunal which are expected to materially adversely affect the ability of
the Owner Participant to perform its obligations under this Agreement and
the other Operative Agreements to which it is or is to be a party and the
Owner Participant knows of no pending or threatened actions or proceedings
before any court, administrative agency or tribunal involving it in
connection with the transactions contemplated by the Operative Agreements;
(vii) neither the execution and delivery by it of this Agreement or
the other Operative Agreements to which it is a party nor the performance
of its obligations hereunder or thereunder requires the consent or approval
of or the giving of notice to, the registration with, or the taking of any
other action in respect of, any governmental authority or agency that would
be required to be obtained or taken by the Owner Participant except for
filings contemplated by this Agreement;
(viii) no part of the funds to be used by it to acquire the interests
to be acquired by the Owner Participant under this Agreement constitutes
assets (within the meaning of ERISA and any applicable rules and
regulations) of any employee benefit plan subject to Title I of ERISA or of
any plan or individual retirement account subject to Section 4975 of the
Code; and
(ix) it is a "U.S. Person" as defined in Section 7701(a)(30) of the
Code and is not a tax resident of another country.
Notwithstanding the foregoing or anything else contained in this
Agreement, the Owner Participant makes no representation or warranty in this
Agreement with respect to laws, rules or regulations relating to aviation or
to the nature or use of the equipment owned by the Owner Trustee, including,
without limitation, the airworthiness, value, condition, workmanship, design,
patent or trademark infringement, operation, merchantability or fitness for
use of the Aircraft, other than such laws, rules or regulations relating to
the citizenship requirements of the Owner Participant under applicable
aviation law.
(b) Lessor's Liens. The Owner Participant further represents,
warrants and covenants that there are no Lessor's Liens attributable to it (or
an Affiliate thereof) and that there will not be any Lessor's Lien
attributable to it (or an Affiliate thereof) on the Certificate Closing Date.
The Owner Participant agrees with and for the benefit of the Lessee, the Owner
Trustee, the Indenture Trustee and the Pass Through Trustee that the Owner
Participant will, at its own cost and expense, take such action as may be
necessary (by bonding or otherwise, so long as neither the Lessee's operation
and use of the Aircraft nor the validity and priority of the Lien of the
Indenture is impaired) to duly discharge and satisfy in full, promptly after
the same first becomes known to the Owner Participant, any Lessor's Lien
attributable to the Owner Participant (or an Affiliate thereof), provided,
however, that the Owner Participant shall not be required to discharge or
satisfy such Lessor's Lien which is being contested by the Owner Participant
in good faith and by appropriate proceedings so long as such proceedings do
not involve any material danger of the sale, forfeiture or loss of the
Aircraft or the Lessor's Estate or the Trust Indenture Estate or any interest
in any thereof or otherwise materially adversely affect the validity or
priority of the Lien of the Indenture.
(c) Reimbursement. Without limiting any other rights the parties
hereto may have as a result of any breach by the Owner Participant of its
obligations in Section 7.03(b) hereof, the Owner Participant agrees to
reimburse each other party hereto for all reasonable legal fees and expenses
of counsel that may be incurred by any such party as a result of the failure
of the Owner Participant to discharge and satisfy any such Lessor's Lien in
accordance with the terms of Section 7.03(b) hereof.
(d) Assignment of Interests of Owner Participant. At any time after
the Delivery Date (or upon the direction of the Lessee if Section 3.05(a)(i)
hereof shall be applicable), and subject to the conditions set forth in this
Section 7.03(d), the Owner Participant may assign, convey or otherwise
transfer to a single institutional investor or an Affiliate of an
institutional investor all (but not less than all) of the Beneficial Interest,
provided that it gives the Lessee and the Indenture Trustee at least 10
Business Days' notice of such assignment, conveyance or other transfer and
provided further that the Owner Participant and any Owner Participant
Guarantor shall remain liable for all obligations of the Owner Participant
under the Trust Agreement and the Operative Agreements to which the Owner
Participant is a party to the extent (but only to the extent) relating to the
period on or before the date of such transfer and provided that the transferee
agrees by a written instrument substantially in the form attached hereto as
Exhibit G-1 to assume primary liability for all obligations as an Owner
Participant under the Trust Agreement and the other Operative Agreements to
which such Owner Participant is a party relating to the period after the date
of transfer. Any such transferee shall (a) be (i) a bank, savings
institution, finance company, leasing company or trust company, national
banking association acting for its own account or in a fiduciary capacity as
trustee or agent under any pension, retirement, profit sharing or similar
trust or fund, insurance company, fraternal benefit society or corporation
acting for its own account having a combined capital and surplus (or, if
applicable, consolidated tangible net worth or its equivalent) of not less
than $75,000,000, (ii) a subsidiary of any Person described in clause (i)
where such Person provides (A) support for the obligations assumed by such
transferee subsidiary reasonably satisfactory to the Lessee, the Owner Trustee
and the Indenture Trustee or (B) an unconditional guaranty substantially in
the form of Exhibit G-2 attached hereto of such transferee subsidiary's
obligations, or (iii) an Affiliate of the transferring Owner Participant, so
long as such Affiliate has a combined capital and surplus (or, if applicable,
consolidated tangible net worth or its equivalent) of not less than
$75,000,000, (b) be legally capable of binding itself to the obligations of
the Owner Participant and shall expressly agree to assume all obligations of
the Owner Participant under the Trust Agreement and this Agreement and (c)
provide representations substantially similar to those contained in Sections
7.02(a) and 7.03(a) hereof. In the event of any such assignment, conveyance
or transfer, the transferee shall become a party to the Trust Agreement and
shall agree to be bound by all the terms of and will undertake all of the
obligations of the Owner Participant contained in the Trust Agreement and the
other Operative Agreements in the manner set forth in the form attached as
Exhibit G-1. A transferee hereunder shall be (i) a "U.S. Person" as defined
in Section 7701(a)(30) of the Code (or any successor provision thereto) and
such transferee shall be personally liable for any debt service to the extent
that its receipt of rentals is reduced by reason of any withholding Taxes that
result from such transferee's failure to be such a "U.S. Person" and (ii) a
Citizen of the United States or has established a voting trust, voting powers
or other arrangement reasonably satisfactory to the Indenture Trustee and the
Lessee to permit the Owner Trustee to be the registered owner of the Aircraft
under the Transportation Code. A transferee hereunder shall not be, and in
acquiring the Beneficial Interest shall not use the assets of, an employee
benefit plan subject to Title I of ERISA or an individual retirement account
or a plan subject to Section 4975 of the Code. Assuming the truth of the
representations made in Sections 6.01(m) and 7.06 hereof and compliance with
Section 10.06 of the Indenture, no such assignment, conveyance or transfer
shall violate any provision of law or regulation or create a relationship
which would be in violation thereof. The Owner Trustee shall not be on notice
of or otherwise bound by any such assignment, conveyance or transfer unless
and until it shall have received an executed counterpart of the instrument of
such assignment, conveyance or transfer. Upon any such disposition by the
Owner Participant to a transferee as above provided, the transferee shall be
deemed the "Owner Participant" or "Trustor" for all purposes of the Operative
Agreements, and shall be deemed to have made all the payments previously made
by its transferor and to have acquired the same interest in the Lessor's
Estate as theretofore held by its transferor; and each reference therein to
the "Owner Participant" or "Trustor" shall thereafter be deemed a reference
to such transferee. Notwithstanding anything to the contrary contained in
this Section 7.03(d), in no event shall the Owner Participant transfer its
interest in the Beneficial Interest to any entity whose business is that of
a nationwide or worldwide overnight or expedited delivery small package air
courier, cargo or freight deliverer or which competes with the Lessee in
such lines of business. The Lessee agrees that it will reasonably
cooperate with the Owner Participant in effecting an assignment of the
Owner Participant's interests including, without limitation, providing
letters to any successor Owner Participant permitting such successor Owner
Participant to rely on any opinions provided by the Lessee on the Delivery
Date.
(e) Actions with Respect to Lessor's Estate, Etc. The Owner
Participant agrees that it will not take any action to subject the Lessor's
Estate or the trust established by the Trust Agreement, as debtor, to the
reorganization or liquidation provisions of the Bankruptcy Code or any other
applicable bankruptcy or insolvency statute.
Section 7.04. Representations, Covenants and Warranties of SSB and
the Owner Trustee. (a) In addition to and without limiting its other
representations and warranties provided for in this Article 7, SSB represents
and warrants, in its individual capacity with respect to items (i), (ii),
(iii)(A), (iv), (v), (vi) and (vii) below, and as the Owner Trustee with
respect to items (iii)(B) and (iv) on the date hereof and as of the
Certificate Closing Date and the Delivery Date that:
(i) it is a national banking association duly organized and validly
existing in good standing under the laws of the United States of America
with its principal place of business and chief executive office (as such
terms are used in Article 9 of the Uniform Commercial Code) at 750 Main
Street, Hartford, Connecticut 06013, Attention: Corporate Trust Department
and has full corporate power and authority, in its individual capacity or
(assuming the Trust Agreement has been duly authorized, executed and
delivered by the Owner Participant) as the Owner Trustee, as the case may
be, to carry on its business as now conducted, and to execute, deliver and
perform this Agreement and the Operative Agreements to which it is or is to
be a party;
(ii) the execution, delivery and performance by SSB, either in its
individual capacity or as the Owner Trustee, as the case may be, of this
Agreement and the Operative Agreements to which it is or is to be party
have been duly authorized by all necessary corporate action on its part,
and do not contravene its articles of association or by-laws; each of this
Agreement and the other Operative Agreements to which it is or is to be a
party has been duly authorized, and has been duly executed and delivered
or, in the case of the Operative Agreements identified in Section 4.02(c)
hereof, will on the Delivery Date be duly executed and delivered by SSB,
either in its individual capacity or as the Owner Trustee, as the case may
be, and neither the execution and delivery thereof nor SSB's performance
of or compliance with any of the terms and provisions thereof will violate
any Federal or Connecticut law or regulation governing SSB's banking or
trust powers;
(iii) (A) assuming due authorization, execution and delivery by each
other party thereto, each of the Operative Agreements to which it is or is
to be party when duly executed and delivered will, to the extent each such
document is entered into by SSB in its individual capacity, constitute the
legal, valid and binding obligation of SSB in its individual capacity
enforceable against it in such capacity in accordance with its respective
terms, except as such enforceability may be limited by bankruptcy,
insolvency, reorganization or other similar laws or equitable principles of
general application to or affecting the enforcement of creditors' rights
(regardless of whether enforceability is considered in a proceeding in
equity or at law), and the performance by SSB in its individual capacity of
any of its obligations thereunder does not contravene any lease, regulation
or contractual restriction binding on SSB in its individual capacity;
(B) assuming due authorization, execution and delivery by each
other party thereto, each of the Operative Agreements to which it is or
is to be party when duly executed and delivered will, to the extent each
such document is entered into by the Owner Trustee in its trust
capacity, constitute the legal, valid and binding obligation of the
Owner Trustee enforceable against it in such capacity in accordance with
its respective terms, except as such enforceability may be limited by
bankruptcy, insolvency, reorganization or other similar laws or
equitable principles of general application to or affecting the
enforcement of creditors' rights (regardless of whether enforceability
is considered in a proceeding in equity or at law), and the performance
by the Owner Trustee of any of its obligations thereunder does not
contravene any lease, regulation or contractual restriction binding on
the Owner Trustee;
(iv) there are no pending or, to its knowledge, threatened actions
or proceedings against SSB before any court or administrative agency
which would materially and adversely affect the ability of SSB, either
in its individual capacity or as the Owner Trustee, as the case may be,
to perform its obligations under the Operative Agreements to which it is
or is to be party;
(v) it shall give the Lessee, the Indenture Trustee and the Owner
Participant at least thirty (30) days' prior written notice in the event of
any change in its chief executive office or name;
(vi) neither the execution and delivery by it, either in its
individual capacity or as the Owner Trustee, as the case may be, of any of
the Operative Agreements to which it is or is to be a party, requires on
the part of SSB in its individual capacity or any of its Affiliates the
consent or approval of or the giving of notice to, the registration with,
or the taking of any other action in respect of, any Federal or Connecticut
governmental authority or agency governing its banking or trust powers; and
(vii) on the Certificate Closing Date, the proceeds arising from the
issuance and sale of the Certificates shall be free of Lessor's Liens
attributable to SSB in its individual capacity and on the Delivery Date the
Owner Trustee shall be holding whatever title to the Aircraft as was
conveyed to it by AVSA, the Aircraft shall be free of Lessor's Liens
attributable to SSB in its individual capacity and SSB in its individual
capacity is a Citizen of the United States.
(b) Lessor's Liens. SSB, in its individual capacity, further
represents, warrants and covenants that there are no Lessor's Liens
attributable to it in its individual capacity and that there will not be any
such Lessor's Liens on the Certificate Closing Date or the Delivery Date. The
Owner Trustee, in its trust capacity, and at the cost and expense of the
Lessee, covenants that it will in its trust capacity promptly, and in any
event within 30 days after the same shall first become known to it, take such
action as may be necessary to discharge duly any Lessor's Liens attributable
to it in its trust capacity. SSB, in its individual capacity, covenants and
agrees that it will at its own expense take such action as may be necessary to
duly discharge and satisfy in full, promptly, and in any event within 30 days
after the same shall first become known to it, any Lessor's Liens attributable
to it in its individual capacity which may arise at any time after the date of
this Agreement.
(c) Indemnity for Lessor's Liens. SSB, in its individual capacity,
agrees to indemnify and hold harmless the Lessee, the Indenture Trustee, the
Owner Participant and the Pass Through Trustee and the Owner Trustee from and
against any loss, cost, expense or damage which may be suffered by the Lessee,
the Indenture Trustee, the Owner Participant, the Pass Through Trustee or the
Owner Trustee as a result of the failure of SSB to discharge and satisfy any
Lessor's Liens attributable to it in its individual capacity, as described in
Section 7.04(b) hereof.
(d) Securities Act. None of SSB, the Owner Trustee or any Person
authorized by either of them to act on its behalf has directly or indirectly
offered or sold or will directly or indirectly offer or sell any interest in
the Lessor's Estate, or in any similar security relating to the Lessor's
Estate, or in any security the offering of which for purposes of the
Securities Act of 1933, as amended, would be deemed to be part of the same
offering as the offering of the aforementioned securities to, or solicited any
offer to acquire any of the same from, any Person.
(e) Actions With Respect to Lessor's Estate, Etc. Neither SSB, in
its individual capacity, nor the Owner Trustee will take any action to subject
the Lessor's Estate or the trust established by the Trust Agreement, as
debtor, to the reorganization or liquidation provisions of the Bankruptcy Code
or any other applicable bankruptcy or insolvency statute.
Section 7.05. Representations, Warranties and Covenants of the
Indenture Trustee. (a) The Indenture Trustee in its individual capacity (other
than as the Pass Through Trustee) represents on the date hereof and as of the
Certificate Closing Date and the Delivery Date as follows:
(i) it is a national banking association duly organized and validly
existing in good standing under the laws of the United States of America
and has the power and authority to enter into and perform its obligations
under the Indenture, this Agreement and the other Operative Agreements to
which it is a party and to authenticate the Certificates to be delivered on
the Certificate Closing Date;
(ii) the Indenture and this Agreement and the other Operative
Agreements to which it is or is to be a party, and the authentication of
the Certificates to be delivered on the Certificate Closing Date, have been
duly authorized by all necessary corporate action on its part, and neither
the execution and delivery thereof nor its performance of any of the terms
and provisions thereof will violate any Federal or Utah law or regulation
relating to its banking or trust powers or contravene or result in any
breach of, or constitute any default under, its articles of association or
by-laws;
(iii) each of the Indenture and this Agreement, and the other
Operative Agreements to which it is or is to be a party, has been duly
executed and delivered or, in the case of the Operative Agreements
identified in Section 4.02(c) hereof, will on the Delivery Date be executed
and delivered by it and, assuming that each such agreement is the legal,
valid and binding obligation of each other party thereto, is (or will be,
as the case may be), the legal, valid and binding obligation of the
Indenture Trustee, enforceable against the Indenture Trustee in accordance
with its terms except as such enforceability may be limited by bankruptcy,
insolvency, reorganization or other similar laws or equitable principles of
general application to or affecting the enforcement of creditors' rights
(regardless of whether enforceability is considered in a proceeding in
equity or at law);
(iv) neither the execution and delivery by it of the Indenture and
this Agreement and the other Operative Agreements to which it is or is to
be a party, nor the performance by it of any of the transactions
contemplated hereby or thereby, requires the consent or approval of, the
giving of notice to, the registration with, or the taking of any other
action in respect of, any Federal or state governmental authority or agency
governing its banking and trust powers; and
(v) on the Certificate Closing Date, the Indenture Trustee holds
the Liquid Collateral on behalf of the Owner Trustee and on the Delivery
Date, the Indenture Trustee will hold the original counterparts of the
Lease and the Lease Supplement.
(b) Indenture Trustee's Liens. The Indenture Trustee, in its
individual capacity, further represents, warrants and covenants that there are
no Indenture Trustee's Liens attributable to it in its individual capacity and
that there will not be any Indenture Trustee's Liens on the Certificate
Closing Date or, as at and following the Delivery Date, the Aircraft. The
Indenture Trustee, in its individual capacity, covenants and agrees that it
will at its own expense take such action as may be necessary to duly discharge
and satisfy in full, promptly, and in any event within 30 days, after the same
shall first become known to it, any Indenture Trustee's Liens.
(c) Indemnity for Indenture Trustee's Liens. The Indenture Trustee,
in its individual capacity, agrees to indemnify and hold harmless the Lessee,
the Owner Participant, the Owner Trustee and the Pass Through Trustee from and
against any loss, cost, expense or damage which may be suffered by the Lessee,
the Indenture Trustee, the Owner Participant, the Owner Trustee or the Pass
Through Trustee as a result of the failure of the Indenture Trustee to
discharge and satisfy any Indenture Trustee's Liens attributable to it in its
individual capacity, as described in Section 7.05(b) hereof.
Section 7.06. Indenture Trustee's Notice of Default. The Indenture
Trustee agrees to give the Owner Participant notice of any Default or Event of
Default promptly upon a Responsible Officer of the Indenture Trustee having
actual knowledge thereof.
Section 7.07. Releases from Indenture. The Indenture Trustee
covenants and agrees, for the benefit of the Lessee and the Owner Participant,
to execute and deliver the instruments of release from the Lien of the
Indenture which it is required to execute and deliver in accordance with the
provisions of Article XIV of the Indenture, and the Owner Participant agrees,
for the benefit of the Lessee, to cause the Owner Trustee to request the
Indenture Trustee to execute and deliver such instruments of release upon
written notice from the Lessee to make such request.
Section 7.08. Covenant of Quiet Enjoyment. Each of the Owner
Participant, the Indenture Trustee, the Pass Through Trustee and the Owner
Trustee covenants and agrees as to itself only that, so long as no Event of
Default under the Lease has occurred and is continuing, neither the Owner
Participant (or the Owner Trustee, the Pass Through Trustee or the Indenture
Trustee, as the case may be) nor any Person lawfully claiming through the
Owner Participant (or the Owner Trustee, the Pass Through Trustee or the
Indenture Trustee, as the case may be) shall interfere with the Lessee's right
quietly to enjoy the Aircraft during the Term without hindrance or disturbance
by the Owner Participant (or the Owner Trustee, the Pass Through Trustee or
the Indenture Trustee, as the case may be).
Section 7.09. Pass Through Trustee's Representations and Warranties.
The Pass Through Trustee, in its individual capacity (except with respect to
clause (iii) below), represents and warrants as of the date hereof (except as
otherwise provided), as of the Pass Through Closing Date, the Certificate
Closing Date and the Delivery Date that:
(i) it is a national banking association duly organized and validly
existing in good standing under the laws of the United States of America
and has the power and authority to enter into and perform its obligations
under the Pass Through Agreement, the Series Supplements, the Intercreditor
Agreement and this Agreement and to execute and authenticate the Pass
Through Certificates to be delivered on the Pass Through Closing Date;
(ii) the execution, delivery and performance of this Agreement,
the Pass Through Agreement and the Series Supplements and the
performance of its obligations hereunder and thereunder (including the
execution and authentication of the Pass Through Certificates to be
delivered on the Pass Through Closing Date) have been fully authorized
by all necessary corporate action on its part, and, subject to (A) the
registration of the issuance and sale of the Pass Through Certificates
under the Securities Act, (B) compliance with any applicable state
securities laws and (C) the qualification of the Pass Through Agreement
under the Trust Indenture Act, neither the execution and delivery
thereof nor its performance of any of the terms and provisions thereof
will violate any Federal or Utah law or regulation relating to its
banking or trust powers or contravene or result in any breach of, or
constitute any default under its articles of association, or bylaws or
the provisions of any indenture, mortgage, contract or other agreement
to which it is a party or by which it or its properties may be bound or
affected; and
(iii) each of this Agreement and the Pass Through Agreement has
been, and as of the Pass Through Closing Date the Series Supplements
will be, duly executed and delivered by it (in its individual and trust
capacities) and, assuming that each such agreement is the legal, valid
and binding obligation of each other party thereto, is or will be, as
the case may be, the legal, valid and binding obligation of the Pass
Through Trustee (in its individual and trust capacities), enforceable in
accordance with its respective terms except as limited by bankruptcy,
insolvency, moratorium, reorganization or other similar laws or
equitable principles of general application to or affecting the
enforcement of creditors' rights generally (regardless of whether such
enforceability is considered in a proceeding in equity or at law).
Section 7.10. Survival of Representations, Warranties and Covenants.
The representations, warranties and covenants of the Owner Participant, the
Owner Trustee (in its individual or trust capacity), the Pass Through Trustee
(in its individual or trust capacity), the Indenture Trustee (in its
individual or trust capacity) and the Subordination Agent (in its individual
or trust capacity) provided for in this Article 7, and their respective
obligations under any and all of them, shall survive the Closings, the
delivery of the Aircraft and the expiration or other termination of this
Agreement, and the other Operative Agreements.
Section 7.11. Lessee's Assumption of the Certificates. (a) Subject
to compliance by the Lessee with all of its obligations under the Operative
Agreements, each of the Owner Participant, the Owner Trustee, the Indenture
Trustee, the Pass Through Trustee and the Lessee covenants and agrees that if
the Lessee elects to terminate the Lease and to purchase the Aircraft pursuant
to Section 4.02(a)(A), (D) or (E) of the Lease, and so long as no Event of
Default shall have occurred and be continuing then, upon compliance with the
applicable provisions of said Section 4.02(a) of the Lease, the Owner Trustee
will transfer to the Lessee, without recourse or warranty (except as to the
absence of Lessor's Liens attributable to the Owner Trustee) but subject to
the Lien of the Indenture, all of the Owner Trustee's right, title and
interest in and to the Aircraft, and if the Lessee, in connection with such
purchase, elects pursuant to Section 4.02(a)(A), (D) or (E) of the Lease to
assume the obligations of the Owner Trustee to the Indenture Trustee and the
Holders under the Indenture, the Certificates and hereunder, then the Lessee
shall so notify the Indenture Trustee (such notice to be given at least 30 and
not more than 60 days prior to the effective date of such assumption), and
each of the parties shall execute and deliver appropriate documentation
permitting the Lessee to assume such obligations on the basis of full recourse
to the Lessee, maintaining for the benefit of the Holders the security
interest in the Aircraft created by the Indenture, and upon compliance with
the provisions of this Section 7.11 releasing the Owner Participant and the
Owner Trustee from all obligations in respect of the Certificates, the
Indenture, this Agreement and the other Operative Agreements, except any
obligations relating to the period prior to such assumption and take all
such other actions, at the Lessee's expense, as are reasonably necessary to
permit such assumption by the Lessee.
(b) In connection with such assumption:
(i) the Lessee shall execute and deliver an instrument satisfactory
in form and substance to the Indenture Trustee (A) pursuant to which the
Lessee irrevocably and unconditionally assumes and undertakes, with full
recourse to the Lessee, to pay, satisfy and discharge when and as due (at
the stated maturity thereof, by acceleration or otherwise) the principal
of, Make-Whole Premium, if any, interest and all other sums owing on all
Outstanding Certificates (or on the Lessee's substituted obligations) in
accordance with their terms and to punctually perform and observe all of
the covenants and obligations hereunder and under the Indenture and the
Certificates (as the same may be amended in connection with such
assumption) to be performed or observed by the Owner Trustee and (B) which
contains amendments to the Indenture, in form and substance satisfactory to
the Holders and the Indenture Trustee, that incorporate therein such
provisions from the Lease and this Agreement as may be appropriate,
including, without limitation, events of default substantially identical in
scope and effect to those set forth in the Lease and covenants
substantially identical to the covenants of the Lessee hereunder and under
the Lease;
(ii) the instrument referred to in paragraph (i) of this Section
7.11(b), any Uniform Commercial Code financing statements relating thereto,
and any other documents which shall be necessary (or reasonably requested
by the Indenture Trustee) to establish the Lessee's title to and interest
in the Aircraft or to reflect the substitution of the Lessee for the Owner
Trustee under the Operative Agreements or to continue the perfection of the
security interests in the Aircraft and the other rights, Property and
interests included in the Trust Indenture Estate for the benefit of the
Holders (or the Lessee's substituted obligations) shall be filed in such
form, manner and places as are necessary or, in the reasonable opinion of
the Indenture Trustee, advisable for such purpose;
(iii) the Indenture Trustee shall have received an insurance report
dated the effective date of such assumption of an independent insurance
broker and certificates of insurance, each in form and substance
satisfactory to the Indenture Trustee, as to the due compliance as of the
effective date of such assumption with the terms of Article 13 of the Lease
(as it relates to the Indenture Trustee) relating to the insurance with
respect to the Aircraft;
(iv) the Indenture Trustee shall have received evidence that as of
the effectiveness of the assignment on the date of such assumption the
Aircraft is free and clear of all Liens other than the Lien of the
Indenture and other Permitted Liens;
(v) the Indenture Trustee shall have received a certificate from
the Lessee that no Event of Default shall have occurred and be continuing
as of the effective date of such assumption; and
(vi) the Indenture Trustee shall have received (A) from counsel for
the Lessee (who may be the Lessee's General Counsel) a legal opinion, in
form and substance satisfactory to the Indenture Trustee (w) with respect
to the compliance of the assumption contemplated hereby with the terms,
provisions and conditions hereof, (x) with respect to the due
authorization, execution, delivery, validity and enforceability of the
instrument referred to in paragraph (i) of this Section 7.11(b), (y)
with respect to the continued perfection of the first and prior Lien and
security interest in the Aircraft for the benefit of the Holders of the
Certificates (or the Lessee's substituted obligations) referred to in
paragraph (ii) of this Section 7.11(b) and (z) with respect to the
continued availability of the benefits of Section 1110 of the Bankruptcy
Code to the Indenture Trustee for the benefit of the Holders with
respect to the Aircraft after giving effect to such assumption, (B) from
counsel to the Indenture Trustee and Special Aviation Counsel, a legal
opinion comparable to the respective opinions delivered on the
Certificate Closing Date or the Delivery Date, as the case may be, with
such changes therein as may be appropriate in light of such assumption,
and (C) in the case of each opinion described in clause (A) or (B)
above, covering such additional matters as the Indenture Trustee shall
reasonably request.
(c) The Lessee shall pay all reasonable expenses (including
reasonable fees and expenses of counsel) of the Indenture Trustee, the Owner
Trustee, the Pass Through Trustee and the Owner Participant in connection with
such assumption.
Section 7.12. Indebtedness of Owner Trustee. So long as the
Indenture is in effect, the Owner Trustee, not in its individual capacity, but
solely as trustee under the Trust Agreement, shall not incur any indebtedness
for borrowed money except as expressly contemplated herein or in any other
Operative Agreement (excluding the Tax Indemnity Agreement) and shall not
engage in any business or other activity other than the transactions
contemplated herein or in any other Operative Agreement (excluding the Tax
Indemnity Agreement) and all necessary or appropriate activity related
thereto.
Section 7.13. Compliance with Trust Agreement, Etc. Each of the
Owner Participant, SSB and the Owner Trustee agrees with the Lessee, the
Indenture Trustee and the Pass Through Trustee that so long as the Lien of the
Indenture shall be in effect it will (i) comply with all of the terms of the
Trust Agreement applicable to it in its respective capacity, the noncompliance
with which would materially adversely affect any such party and (ii) not take
any action, or cause any action to be taken, to amend, modify or supplement
any other provision of the Trust Agreement in a manner that would materially
adversely affect any such party without the prior written consent of such
party. The Owner Trustee confirms for the benefit of the Lessee, the
Indenture Trustee and the Pass Through Trustee that it will comply with the
provisions of Article 2 of the Trust Agreement. Notwithstanding anything else
to the contrary in the Trust Agreement, so long as the Lease remains in
effect, the Owner Participant agrees not to terminate or revoke the trust
created by the Trust Agreement without the consent of the Lessee. If and so
long as the Indenture shall not have been discharged the consent of the
Indenture Trustee shall also be required prior to any termination or
revocation of such trust and in addition, the Owner Participant will, at the
Lessee's expense, promptly and duly execute and deliver to the Indenture
Trustee such documents and assurances including, without limitation,
conveyances, financing statements and continuation statements with respect to
financing statements and take such further action as the Indenture Trustee may
from time to time reasonably request and furnish in order to protect the
rights and remedies created or intended to be created in favor of the
Indenture Trustee under the Indenture and to create for the benefit of the
Certificate Holders a valid first priority Lien with respect to, and a first
and prior perfected security interest in, the Trust Indenture Estate.
Section 7.14. Subordination Agent's Representations, Warranties and
Covenants. (a) Representations and Warranties. The Subordination Agent
represents and warrants as of the date hereof (except as otherwise provided),
as of the Pass Through Closing Date, the Certificate Closing Date and the
Delivery Date that:
(i) it is a national banking association duly organized and validly
existing in good standing under the laws of the United States of America
and has the corporate power and authority to enter into and perform its
obligations under this Agreement, the Liquidity Facilities and the
Intercreditor Agreement;
(ii) the execution, delivery and performance of this Agreement, each
of the Liquidity Facilities and the Intercreditor Agreement and the
performance of its obligations hereunder and thereunder have been fully
authorized by all necessary corporate action on its part, and, neither the
execution and delivery thereof nor its performance of any of the terms and
provisions thereof will violate any Federal or Utah law or regulation
relating to its banking or trust powers or contravene or result in any
breach of, or constitute any default under its articles of association, or
bylaws or the provisions of any indenture, mortgage, contract or other
agreement to which it is a party or by which it or its properties may be
bound or affected;
(iii) each of this Agreement, the Liquidity Facilities and the
Intercreditor Agreement has been duly executed and delivered by it and,
assuming that each such agreement is the legal, valid and binding
obligation of each other party thereto, is or will be, as the case may be,
the legal, valid and binding obligation of the Subordination Agent,
enforceable in accordance with its respective terms except as limited by
bankruptcy, insolvency, moratorium, reorganization or other similar laws or
equitable principles of general application to or affecting the enforcement
of creditors' rights generally (regardless of whether such enforceability
is considered in a proceeding in equity or at law);
(iv) there are no Taxes payable by the Subordination Agent imposed
by the State of Utah or any political subdivision or taxing authority
thereof in connection with the execution, delivery and performance by
the Subordination Agent of this Agreement, any of the Liquidity
Facilities or the Intercreditor Agreement (other than franchise or other
taxes based on or measured by any fees or compensation received by the
Subordination Agent for services rendered in connection with the
transactions contemplated by the Intercreditor Agreement or any of the
Liquidity Facilities), and there are no Taxes payable by the
Subordination Agent imposed by the State of Utah or any political
subdivision thereof in connection with the acquisition, possession or
ownership by the Subordination Agent of any of the Certificates other
than franchise or other taxes based on or measured by any fees or
compensation received by the Subordination Agent for services rendered
in connection with the transactions contemplated by the Intercreditor
Agreement or any of the Liquidity Facilities);
(v) there are no pending or threatened actions or proceedings
against the Subordination Agent before any court or administrative agency
which individually or in the aggregate, if determined adversely to it,
would materially adversely affect the ability of the Subordination Agent to
perform its obligations under this Agreement, the Intercreditor Agreement
or any Liquidity Facility;
(vi) the Subordination Agent has not directly or indirectly offered
any Certificate for sale to any Person or solicited any offer to acquire
any Certificates from any Person, nor has the Subordination Agent
authorized anyone to act on its behalf to offer directly or indirectly any
Certificate for sale to any Person, or to solicit any offer to acquire any
Certificate from any Person; and the Subordination Agent is not in default
under any Liquidity Facility; and
(vii) the Subordination Agent is not directly or indirectly
controlling, controlled by or under common control with the Owner
Participant, the Owner Trustee, any Underwriter or the Lessee.
(b) Covenants. (i) The Subordination Agent agrees not to amend any
Liquidity Facility without the consent of the Lessee (so long as no Event of
Default shall have occurred and be continuing) and of the Owner Participant
(such consents not to be unreasonably withheld).
(ii) In connection with the deposit in the applicable Cash
Account of amounts drawn pursuant to any Downgrade Drawing under a
Liquidity Facility, the Subordination Agent agrees, so long as no Event of
Default shall have occurred and be continuing, to pay to the Lessee
promptly following each Regular Distribution Date any Investment Earnings
on the amount so deposited which remain after application of such
Investment Earnings pursuant to Section 2.06 of such Liquidity Facility to
the interest payable on such Downgrade Drawing under Section 3.07 of such
Liquidity Facility. Capitalized terms used in this Section shall have the
meanings specified in the Intercreditor Agreement.
ARTICLE 8
TAXES
Section 8.01. Lessee's Obligation to Pay Taxes. (a) Generally. The
Lessee agrees promptly to pay when due, and to indemnify and hold each
Indemnitee harmless from all license, recording, documentary, registration and
other fees and all taxes (including, without limitation, income, gross
receipts, sales, rental, use, value added, property (tangible and intangible),
ad valorem, excise and stamp taxes), fees, levies, imposts, recording duties,
duties, charges, assessments or withholdings of any nature whatsoever,
together with any assessments, penalties, fines, additions to tax or interest
thereon (individually, a "Tax," and collectively called "Taxes"), however
imposed or asserted (whether imposed upon any Indemnitee, the Lessee, all or
any part of the Aircraft, Airframe, any Engine or any Part or the Lessor's
Estate, the Trust Indenture Estate, Rent, the Certificates or otherwise upon
or with respect to any Operative Agreement, any payments thereunder or
otherwise in connection therewith), by any Federal, state or local government
or taxing authority in the United States, or by any government or taxing
authority of a foreign country or of any political subdivision or taxing
authority thereof or by a territory or possession of the United States or an
international taxing authority relating to or measured by:
(i) the construction, mortgaging, financing, refinancing, purchase,
acceptance, rejection, delivery, nondelivery, transport, location, ownership,
registration, reregistration, deregistration, insuring, assembly, possession,
repossession, operation, use, non-use, condition, maintenance, repair,
improvement, conversion, sale, return, abandonment, preparation, installation,
storage, redelivery, replacement, manufacture, leasing, subleasing,
sub-subleasing, modification, alteration, rebuilding, importation, transfer of
title, transfer of registration, exportation or other application or
disposition of, or the imposition of any Lien (or the incurrence of any
liability to refund or pay over any amount as a result of any Lien) on, the
Aircraft, the Airframe, any Engine or any Part or any interest therein;
(ii) amounts payable under the Operative Agreements;
(iii) the Property, or the income or other proceeds received with
respect to the Property attributable to the transactions contemplated by
the Operative Agreements, held by the Owner Trustee under the Trust
Agreement or after an Event of Default under the Lease, or by the Indenture
Trustee under the Indenture;
(iv) otherwise with respect to any Operative Agreement, any
interest therein or by reason of the transactions described in or
contemplated by the Operative Agreements;
(v) the principal or interest or other amounts payable with respect
to the Certificates;
(vi) the Pass Through Certificates or the Certificates or the
issuance, sale, acquisition, reoptimization, or refinancing thereof or the
beneficial interests in the Trust Estate or the Trust Indenture Estate or
the creation thereof under the Trust Agreement or the Indenture, or the
security interest created or perfected thereby or by any filing thereof;
(vii) any assumption by the Lessee pursuant to Section 7.11 of this
Agreement and Section 2.12 of the Indenture;
(viii) the Aircraft, the Airframe, any Engine or any Part; or
(ix) the rentals (including Basic Rent, Renewal Rent and
Supplemental Rent), receipts or earnings arising from the Operative
Agreements.
(b) Exceptions. The indemnity provided for in Section 8.01(a) shall
not extend to any of the following:
(i) With respect to an Indemnitee, Taxes based upon, measured by or
with respect to the net or gross income, items of tax preference or minimum
tax or excess profits, receipts, value-added taxes, capital, franchise, net
worth (whether denominated income, excise, capital stock, or doing
business taxes) or other similarly-based taxes (other than sales, use,
transfer, rental, ad valorem, stamp, property, or similar taxes) ("Income
Taxes"), provided, however, that this clause (i) shall not exclude from the
indemnity described in Section 8.01(a) above any such Income Taxes to the
extent such taxes are imposed by any jurisdiction in which the Indemnitee
would not be subject to such taxes but for, or would be subject to such
taxes solely as a result of, (x) the operation, registration, location,
presence, or use of the Aircraft, Airframe, any Engine or any Part thereof,
in such jurisdiction or (y) the place of incorporation or principal office
or the activities of the Lessee or any sublessee in such jurisdiction (it
being understood that (A) any such indemnity would be payable only to the
extent of the net harm incurred by the Indemnitee from such Income Taxes,
taking into account any incremental current Tax benefit in another tax
jurisdiction resulting from payment of such Income Taxes and (B) this
sentence would require indemnification in a jurisdiction in which the
Indemnitee is already subject to an Income Tax (an "Existing Income Tax")
only if an event set forth in Clause (x) or (y) of this sentence causes the
Indemnitee to be subject to an Income Tax in that jurisdiction (a "New
Income Tax") other than an Existing Income Tax, and such New Income Tax
would have been imposed even if the activities contemplated by the
Operative Agreements were the Indemnitee's sole nexus to the jurisdiction);
provided, further, that the provisions of this paragraph (b)(i) relating to
Income Taxes shall not exclude from the indemnity described in Section
8.01(a) hereof any Income Taxes for which the Lessee would be required to
indemnify an Indemnitee (x) so that any payment under the Operative
Agreements, otherwise required to be made on an After-Tax Basis, is made on
an After-Tax Basis or (y) pursuant to the last sentence of Section 8.02,
8.05, 9.02 or 9.05 of this Agreement;
(ii) [Reserved];
(iii) Taxes imposed with respect to the Aircraft and arising out
of or measured by acts, omissions, events or periods (or any combination
of the foregoing) which occur after the later of (A) the payment in full
of all amounts payable by the Lessee pursuant to and in accordance with
the Operative Agreements, or the earlier discharge in full of the
Lessee's payment obligations under and in accordance with the Lease and
the Operative Agreements, and (B) the earliest of (x) the expiration of
the Term of the Lease and return of the Aircraft in accordance with
Article 12 of the Lease, (y) the termination of the Lease in accordance
with the applicable provisions of the Lease and return of the Aircraft
in accordance with the Lease, or (z) the termination of the Lease in
accordance with the applicable provisions of the Lease and the transfer
of all right, title and interest in the Aircraft to the Lessee pursuant
to its exercise of any of its purchase options set forth in Section
4.02(a) of the Lease, provided that this exclusion (iii) shall not apply
in respect of any payment made after the dates set forth in clauses (A)
and (B) above unless such payment is made with respect to any event or
circumstance occurring on, with or prior to such return or transfer or
period prior to such return or transfer, or Taxes incurred in connection
with the exercise of any remedies pursuant to Article 17 of the Lease
following the occurrence of an Event of Default;
(iv) As to the Owner Trustee, Taxes imposed against the Owner
Trustee upon or with respect to any fees for services rendered in its
capacity as Owner Trustee under the Trust Agreement or, as to the
Indenture Trustee, Taxes imposed against the Indenture Trustee upon or
with respect to any fees received by it for services rendered in its
capacity as Indenture Trustee under the Indenture;
(v) Taxes imposed on an Indemnitee that would not have been imposed
but for the willful misconduct or gross negligence of such Indemnitee
(other than gross negligence or willful misconduct not actually committed
by but instead imputed to such Indemnitee by reason of such Indemnitee's
participation in the transactions contemplated by the Operative Agreements)
or the breach by such Indemnitee of: (i) in the case of an Indemnitee other
than the Owner Participant, any representation, warranty or covenant
contained in the Operative Agreements or any document delivered in
connection therewith and (ii) in the case of the Owner Participant, the
representations or covenants in Sections 7.02(a), (c); 7.03(a)(i), (ii),
(iii), (iv), (vii), (ix); and 7.03(b), (c), (d), (e) of this Agreement (in
either case unless attributable to a breach of representation, warranty or
covenant of the Lessee);
(vi) Taxes imposed on, and not collected by withholding from
payments of Rent, the Owner Trustee or the Owner Participant or any
successor, assign or Affiliate thereof which became payable by reason of
any voluntary or involuntary transfer or disposition by such Indemnitee
subsequent to the Delivery Date, including revocation of the Trust, of any
interest in some or all of the Aircraft, Airframe, Engines or Parts thereof
or its interest in the Lessor's Estate (not including any transfers of any
Certificates pursuant to Section 15.01(a) hereof) or a disposition in
connection with a bankruptcy or similar proceedings involving either the
Lessor or the Owner Participant other than (A) transfers resulting from a
loss, substitution or modification of the Aircraft, Engines or any Part,
(B) any transfer of the Aircraft, Engines or any Part (in each case other
than at Fair Market Value) to the Lessee or other person in possession
thereof, (C) transfers attributable to an Event of Default or (D) a
transfer pursuant to the Lessee's exercise of its rights under Section
10.01 of the Lease; the parties agree to cooperate to minimize any such
Taxes covered by this provision;
(vii) Taxes imposed on the Owner Participant for which the Lessee is
obligated to indemnify the Owner Participant pursuant to the Tax Indemnity
Agreement;
(viii) Taxes imposed on a successor, assign or other transferee
of the Owner Participant or the Owner Trustee that is not a U.S. Person
or an Indemnitee as of the date hereof under the Operative Agreements
(including, without limitation, a transferee which is a new lending
office of an original Indemnitee) which on the Certificate Closing Date
is an Indemnitee (for purposes of this clause (viii), an "original
Indemnitee") or such original Indemnitee to the extent that such Taxes
exceed the amount of Taxes that would have been imposed and would have
been indemnifiable pursuant to Section 8.01(a) hereof had there not been
a succession, assignment or other transfer by such original Indemnitee
of any such interest of such Indemnitee in the Aircraft or any Part, any
interest in or under any Operative Agreement, or any proceeds thereunder
(it being understood that for purposes of determining the amount of
indemnification that would have been due to such original Indemnitee
with respect to a net income Tax, it shall be assumed that such original
Indemnitee would be subject to taxation on its income at the highest
marginal statutory rate applicable to it), provided, however, that the
exclusion provided by this clause (viii) shall not apply in the case of
a succession, transfer or disposition (A) that occurs after the Lease
has been declared in default or if such transfer or disposition is
pursuant to the exercise of remedies under Article 17 of the Lease, (B)
which is an actual or deemed transfer pursuant to Section 7.11 hereof or
as a consequence of a Refinancing under Section 15.01 hereof, or any
actual or deemed transfer of a Certificate that as part of a Refinancing
under Section 15.01 hereof is not retired, but only to the extent the
Taxes attributable to such transfer exceed the amount of Taxes that
would have been imposed on such transferor if the debt had instead been
retired, (C) to the extent necessary to make payments with respect to
such Taxes on an After-Tax Basis, (D) to the extent such Taxes are
directly attributable to the failure of the Lessee to take
administrative actions as have been reasonably requested of it in
writing in a timely manner and which will result in no after-tax cost or
expense to the Lessee or (E) in the case of the Owner Participant or the
Lessor, to any Tax other than an Income Tax;
(ix) [Reserved];
(x) Any Taxes which have been included in the Purchase Price and
which have been paid to the applicable taxing authorities;
(xi) Any Taxes which would not have been imposed but for a Lessor's
Lien or an Indenture Trustee's Lien; and
(xii) Any Taxes imposed on the Owner Participant arising under or in
connection with any prohibited transaction, within the meaning of Section
406 of ERISA or Section 4975(c)(1) of the Code ("Prohibited Transaction");
provided, however, that in the event any prohibited transaction arises
which is not exempt under any class prohibited transaction exemption or any
individual or statutory prohibited transaction exemption (individually or
collectively, a "PTE") then the indemnity provided for herein shall extend
to any Taxes incurred by the Owner Participant (or any Affiliate thereof)
as the result of any Prohibited Transaction arising out of the purchase or
holding of any Loan Certificates by an employee benefit plan subject to
Title I of ERISA or by a plan subject to Section 4975 of the Code
(individually or collectively, an "ERISA Plan") with respect to which the
Owner Participant is a party in interest, within the meaning of Section
3(14) of ERISA, or a disqualified person,within the meaning of Section 4975
of the Code, except, however, that such Indemnity shall not extend to any
Taxes incurred by the Owner Participant (or any Affiliate thereof) as the
result of any Prohibited Transaction occurring with respect to the purchase
or holding of any Loan Certificates (A) over which purchase or holding the
Owner Participant (or an Affiliate thereof) has discretion or control
(other than in the capacity of a custodian, directed trustee or other
similar nondiscretionary capacity), or (B) by an ERISA Plan with respect to
which the Owner Participant (or any Affiliate thereof) is a "plan sponsor"
within the meaning of Section 3(16)(B) of ERISA.
(c) Withholding. The Pass Through Trustee shall withhold any Taxes
required to be withheld on payments to any holder of a Pass Through
Certificate who is a Non-U.S. Person except to the extent that such a holder
of a Pass Through Certificate has furnished evidence to the Pass Through
Trustee sufficient under applicable law to entitle such holder of a Pass
Through Certificate to any exemption from or reduction in the rate of
withholding on interest claimed by such holder of a Pass Through Certificate.
The Indenture Trustee shall withhold any Taxes required to be withheld on any
payment to a Holder pursuant to Section 5.09 of the Indenture. If the
Indenture Trustee or the Pass Through Trustee fails to withhold a Tax required
to be withheld with respect to any Holder of a Certificate or any holder of a
Pass Through Certificate or any claim is otherwise asserted by a taxing
authority against the Owner Trustee or Owner Participant for any withholding
tax, the Lessee will indemnify the Owner Trustee and the Owner Participant
(without regard to the exclusions set forth in Section 8.01(b) hereof) on an
After-Tax Basis against any such Taxes required to be withheld and any
interest and penalties with respect thereto, along with any other costs
(including reasonable attorney's fees) incurred in connection with any such
claim. The Indenture Trustee or the Pass Through Trustee, as the case may be,
in its individual capacity (and without recourse to the Trust Indenture
Estate), shall indemnify the Lessee (without regard to the exclusions set
forth in Section 8.01(b) hereof) on an After-Tax Basis for any payment the
Lessee shall have made pursuant to the preceding sentence.
Section 8.02. After-Tax Basis. The amount which the Lessee shall be
required to pay with respect to any Tax indemnified against under Section 8.01
shall be an amount sufficient to restore the Indemnitee, on an After-Tax
Basis, to the same position such party would have been in had such Tax not
been incurred, provided that the calculation of any additional amounts owing
to any Indemnitee as a result of the Lessee's obligation to indemnify on an
After-Tax Basis shall be made without regard to the exclusions set forth in
Section 8.01(b). If any Indemnitee actually realizes a tax benefit by
reason of the payment of any Tax paid or indemnified against by the Lessee,
such Indemnitee shall promptly pay to the Lessee, to the extent such tax
benefit was not previously taken into account in computing such payment,
but not before the Lessee shall have made all payments then due to such
Indemnitee under this Agreement, the Tax Indemnity Agreement and any other
Operative Agreement, an amount equal to the lesser of (x) the sum of such
tax benefit plus any other tax benefit actually realized by such Indemnitee
that would not have been realized but for any payment made by such
Indemnitee pursuant to this sentence and not already paid to the Lessee,
and (y) the amount of the payment made under Section 8.01 hereof and this
Section 8.02 by the Lessee to such Indemnitee plus the amount of any other
payments by the Lessee to such Indemnitee theretofore required to be made
under this Section 8.02 and Sections 8.01 and 8.05 hereof (and the excess,
if any, of the amount described in clause (x) above over the amount
described in clause (y) above shall be carried forward and applied to
reduce pro tanto any subsequent obligations of the Lessee to make payments
to such Indemnitee pursuant to Section 8.01 hereof); provided, however,
that notwithstanding the foregoing portions of this sentence, such
Indemnitee shall not be obligated to make any payment to the Lessee
pursuant to this sentence as long as an Event of Default shall have
occurred and be continuing under the Lease. The Lessee shall reimburse on
an After-Tax Basis such Indemnitee (and without regard to Section 8.01(b)
hereof, except for clause (v) thereof) for any payment of a tax benefit
pursuant to the preceding sentence (or a tax benefit otherwise taken into
account in calculating the Lessee's indemnity obligation hereunder) to the
extent that such tax benefit is subsequently disallowed or reduced
(including the expiration of any tax credit carryovers or carrybacks of
such Indemnitee that would not otherwise have expired).
Section 8.03. Time of Payment. Any amount payable to an Indemnitee
pursuant to this Article 8 shall be paid promptly, but in any event within 30
days after receipt of a written demand therefor from such Indemnitee
accompanied by a written statement describing in reasonable detail the basis
for such indemnity and the computation of the amount so payable, provided that
in the case of amounts which are being contested by the Lessee in good faith
or by the Indemnitee in either case pursuant to Section 8.04 hereof, such
amount shall be payable within 30 days after the time such contest is finally
resolved.
Section 8.04. Contests. If a written claim is made against any
Indemnitee for Taxes with respect to which the Lessee is liable for a payment
or indemnity hereunder, such Indemnitee shall promptly (but in any event
within 30 days of receipt thereof) give the Lessee notice in writing of such
claim and shall furnish the Lessee with copies of any written requests for
information sent to such Indemnitee (and not the Lessee) from any taxing
authority to the extent relating to such Taxes with respect to which the
Lessee may be required to indemnify hereunder and with respect to which it
would be necessary or beneficial to have information provided by the Lessee;
provided, however, that the failure of an Indemnitee to give such notice or
furnish such copy shall not terminate any of the rights of such Indemnitee
under this Article 8, except to the extent that the Lessee's contest rights
have been materially and adversely impaired by the failure to provide such
notice or copy. The Lessee may, at its option, contest in its own name or, if
required by law, require the Indemnitee to contest in good faith, with due
diligence and at the Lessee's expense, if timely requested in writing by the
Lessee, the validity, applicability or amount of such Taxes by:
(i) resisting payment thereof if lawful and practicable or not
paying the same except under protest if protest is necessary and proper in
each case so long as non-payment will not result in a material risk of the
sale, forfeiture or loss of, or the creation of a Lien other than a
Lessor's Lien on the Aircraft, Airframe or any Engine or any risk of
criminal liability; or
(ii) if the payment be made, using reasonable efforts to obtain a
refund thereof in appropriate administrative and judicial proceedings.
Notwithstanding the foregoing, the Lessee shall not be permitted or entitled
to contest any such Tax in its own name unless the Tax is reflected in a
report or a return of the Lessee or raised in an audit or other proceeding of
the Lessee and the Lessee is allowed to directly contest such Tax under
applicable law of the taxing jurisdiction provided, that if the Lessee is so
permitted under applicable law to contest a Tax asserted against the Lessee
and the same or similar Tax is also asserted against the Indemnitee, each of
the Lessee and such Indemnitee shall conduct its contest in its own name and
the Lessee and such Indemnitee will cooperate in a reasonable manner with
respect to the respective contests of such Tax.
If the Indemnitee, after reasonable discussion with the Lessee and
consideration in good faith of any suggestion made by the Lessee as to the
method of pursuing such contest, elects to conduct the contest, such
Indemnitee shall control the contest and shall determine the manner in which
to contest such Taxes and shall periodically or upon the Lessee's request
advise the Lessee of the progress of such contest; provided, however, that the
Lessee shall have the right to be consulted in good faith with respect to any
contest of claims subject to indemnification hereunder, including governmental
and judicial conferences and the right to be consulted in good faith regarding
the relevant portions of all related submissions to any governmental or other
authority, provided, however, that the Lessee shall be permitted to
participate in any such contest only (x) with respect to issues that can be
separated on audit from any Taxes for which the Lessee is not required to
indemnify the Indemnitee hereunder, and (y) if the Indemnitee shall have
determined that in its judgment, exercised in its sole discretion, neither
such participation nor the separation of issues will adversely affect the
Indemnitee. The Indemnitee will not settle a contest that results in a final
determination without consent of the Lessee, unless the Indemnitee waives its
right to indemnification with respect to such contest and any related contest.
Notwithstanding the preceding sentences of this Section 8.04, such Indemnitee
shall not be required to take or continue any action unless the Lessee shall
have (i) agreed in writing to pay and shall pay the Indemnitee on a current
basis and on an After-Tax Basis the after-tax cost of all reasonable fees and
expenses (including reasonable attorneys' fees and accountants' fees) which
such Indemnitee may incur as a result of contesting such Taxes, (ii) made all
payments and indemnities (other than contested payments and indemnities) then
due to the Indemnitee hereunder or with respect to any of the transactions
contemplated by or under the Operative Agreements and (iii) acknowledged in
writing the Lessee's obligation to such Indemnitee pursuant to this Agreement
to the extent that the contest is not successful, unless it is reasonably
clear from the resolution of the contest that an exclusion set forth in
Section 8.01(b) hereof applies. In no event shall such Indemnitee be required
or the Lessee be permitted to contest pursuant to this Section 8.04 the
imposition of any Tax for which the Lessee is obligated to indemnify any
Indemnitee hereunder unless (i) such Indemnitee shall have received, at the
Lessee's expense, an opinion of its tax counsel, such counsel to be reasonably
satisfactory to the Lessee ("Tax Counsel"), to the effect that there exists a
reasonable basis for contesting such claim, (ii) such Indemnitee (and, if such
Indemnitee is not the Owner Participant, the Owner Participant and such
Indemnitee) shall have determined that such contest will not result in any
material risk of loss, sale or forfeiture of, or the creation of a Lien (other
than Lessor's Liens) on, the Aircraft or any part thereof or interest thereon
or in a risk of criminal liability, or adversely affect the Trust Indenture
Estate, (iii) if a Payment Default, Bankruptcy Default or an Event of Default
shall have occurred and be continuing, the Lessee shall have provided security
for its obligations hereunder reasonably satisfactory to the Indemnitee, (iv)
if such contest shall be conducted in a manner requiring payment of the claim
in advance, the Lessee shall have advanced sufficient funds, on an interest
free basis, to make the payment required, and agreed to indemnify the
Indemnitee against any additional net adverse tax consequences on an After-Tax
Basis to such Indemnitee of such advance, (v) the issue shall not be the same
as an issue previously contested hereunder and decided adversely, unless the
Indemnitee shall have received at the Lessee's sole expense, a written
opinion, in form and substance reasonably satisfactory to such Indemnitee, of
Tax Counsel to the effect that the applicable circumstances or law has changed
and that in light thereof, there is substantial authority for contesting such
claim and (vi) the amount of the indemnity payments the Lessee would be
required to make with respect to such adjustment, when aggregated with similar
adjustments that could be raised in other taxable years of such Indemnitee
exceeds $50,000; provided, that in the event that such Indemnitee is not
required under this paragraph to contest any Tax liability for which the
Lessee is obligated to indemnify any Indemnitee, the Lessee may contest such
Tax liability in the name of the Lessee, if permitted by law. The Lessee may
appeal or require the Indemnitee to appeal any judicial decision provided the
foregoing requirements of this Section 8.04 are met and the Indemnitee shall
have received, at the Lessee's expense, an opinion of Tax Counsel, to the
effect that there is substantial authority for such appeal.
Nothing contained in this Section 8.04 shall require any
Indemnitee to contest or continue to contest, or permit Lessee to contest,
a claim which such Indemnitee would otherwise be required to contest
pursuant to this Section 8.04, if such Indemnitee shall waive payment by
Lessee of any amount that might otherwise be payable by Lessee under this
Article 8 in connection with such claim.
Section 8.05. Refunds. Upon receipt by an Indemnitee of a refund of
all or any part of any Taxes which the Lessee shall have paid for such
Indemnitee or for which the Lessee shall have reimbursed or indemnified such
Indemnitee, and provided there shall not have occurred and be continuing any
Payment Default, Bankruptcy Default or Event of Default by the Lessee
hereunder or under the Lease (in which case payment shall not be made to the
Lessee until such Payment Default, Bankruptcy Default or Event of Default
shall have been cured), such Indemnitee shall pay to the Lessee an amount
equal to the amount of such refund less (x) any expenses not previously
reimbursed, (y) all payments then due to such Indemnitee under this Article
8 and (z) Taxes imposed with respect to the accrual or receipt thereof,
including interest received attributable thereto, plus any tax benefit
actually realized by such Indemnitee as a result of any payment by such
Indemnitee made pursuant to this sentence; provided, however, that such amount
shall not be payable (a) before such time as the Lessee shall have made all
payments or indemnities then due and payable to such Indemnitee under this
Article 8 and (b) to the extent that the amount of such payment would exceed
(i) the amount of all prior payments by the Lessee to such Indemnitee pursuant
to this Article 8 less (ii) the amount of all prior payments by such
Indemnitee to the Lessee pursuant to this Article 8.
Any subsequent loss of such refund or tax benefit shall be treated as
a Tax subject to indemnification under the provisions of this Article 8 (in
the case of any such tax benefit, without regard to Section 8.01(b) hereof).
Section 8.06. Lessee's Reports. In case any report or return is
required to be made with respect to any Taxes against which the Lessee is or
may be obligated to indemnify the Indemnitees under this Article 8, the Lessee
shall make such report or return, except for any such report or return that
the Indemnitee has notified the Lessee that it intends to file, in such manner
as will show the ownership of the Aircraft in the Owner Trustee and shall send
a copy of the applicable portions of such report or return to the Indemnitee
and the Owner Trustee or will notify the Indemnitee of such requirement and
make such report or return in such manner as shall be satisfactory to such
Indemnitee and the Owner Trustee. The Lessee will provide such information
reasonably available to the Lessee as the Indemnitee may reasonably require
from the Lessee to enable the Indemnitee to fulfill its tax filing
requirements with respect to the transactions contemplated by the Operative
Agreements (without duplication of the requirements of Section 3 of the Tax
Indemnity Agreement) and any audit information request arising from any such
filing. The Indemnitee will provide such information reasonably available to
it as the Lessee may reasonably require from such Indemnitee to enable the
Lessee to fulfill its tax filing requirements with respect to the transactions
contemplated by the Operative Agreements and any audit information request
arising from such filing; provided that in no event shall any Indemnitee be
required to provide copies of any of its tax returns or other confidential
information. The Lessee shall hold the Indemnitee harmless on an After-Tax
Basis from and against any liabilities, including penalties, additions to tax,
fines and interest, imposed upon or incurred by such Indemnitee to the extent
directly attributable to any insufficiency or inaccuracy in any return,
statement, or report prepared by the Lessee or information supplied by the
Lessee, or directly attributable to the Lessee's failure to supply reasonably
available information to such Indemnitee as required by this Section 8.06.
Section 8.07. Survival of Obligations. The representations,
warranties, indemnities and agreements of the Lessee provided for in this
Article 8 and the Lessee's obligations under any and all of them shall survive
the expiration or other termination of the Operative Agreements.
Section 8.08. Payment of Taxes. With respect to any Tax otherwise
indemnifiable hereunder by the Lessee and applicable to the Aircraft,
Airframe, any Engine or Parts, to the extent permitted by the applicable
federal, state, local or foreign law, the Lessee shall pay such tax directly
to the relevant Taxing authority and file any returns or reports required with
respect thereto to the extent legally entitled to do so in its own name;
provided, however, that the Lessee shall not make any statements or take any
action which would indicate that the Lessee or any Person other than the Owner
Trustee or Owner Participant is the owner of the Aircraft, the Airframe, any
Engine or any Part or which would otherwise be inconsistent with the terms of
the Lease or the Tax Indemnity Agreement and the position thereunder of the
Owner Trustee and the Owner Participant. Copies of such returns or reports,
together with evidence of payment of any tax due, shall be sent by the Lessee
to the Owner Participant within thirty (30) days after the date of each
payment by the Lessee of any Tax.
Section 8.09. Reimbursements by Indemnitees Generally. To the
extent the Lessee is required to pay or withhold any Tax imposed on or with
respect to an Indemnitee in respect of the transactions contemplated by the
Operative Agreements, which Tax is not otherwise the responsibility of the
Lessee under the Operative Agreements, or any other written agreements between
the Lessee and such Indemnitee, then such Indemnitee shall pay to the Lessee
within 30 days of the Lessee's demand therefor an amount which equals the
amount actually paid by the Lessee with respect to such Taxes.
Section 8.10. Special Indemnity. Notwithstanding anything in this
Article 8 to the contrary, the Lessee shall hold the Owner Participant
harmless on an After-Tax Basis from any Taxes or losses arising from or in
connection with the transactions contemplated by Section 17.02 hereof.
ARTICLE 9
GENERAL INDEMNITY
Section 9.01. Generally. (a) The Lessee agrees to indemnify each
Indemnitee against and agrees to protect, defend, save and keep harmless each
Indemnitee from any and all liabilities, obligations, losses, damages,
penalties, claims, actions, suits, costs, disbursements and expenses
(including legal fees and expenses and all costs and expenses relating to
amendments, supplements, adjustments, consents, refinancings and waivers under
the Operative Agreements except as otherwise provided in Section 10.01(c)(i)
or Article 15 hereof) of every kind and nature, including without limitation
Make-Whole Premium (unless excluded pursuant to Section 3.03 of the Lease)
(whether or not any of the transactions contemplated by this Agreement are
consummated) (individually, an "Expense," collectively, "Expenses"), which
may be imposed on, incurred or suffered by or asserted against any Indemnitee,
in any way relating to, based on or arising out of:
(i) this Agreement (including, without limitation, the execution,
delivery and performance hereof by the Owner Participant prior to the
delivery of the Aircraft), the Lease, the Indenture, the Trust Agreement,
the Intercreditor Agreement, the Liquidity Facilities, the Pass Through
Agreement, AVSA's FAA Bill of Sale, AVSA's Warranty Bill of Sale or any
other Operative Agreement or any other document entered into in connection
herewith or any sublease or transfer or any transactions contemplated
hereby or thereby;
(ii) the operation, possession, use, non-use, maintenance, storage,
overhaul, delivery, non-delivery, control, repair or testing of the
Aircraft, Airframe, or any Engine or any engine used in connection with the
Airframe, or any part thereof by the Lessee, any sublessee or any other
Person whatsoever, whether or not such operation, possession, use, non-use,
maintenance, storage, overhaul, delivery, non-delivery, control, repair or
testing is in compliance with the terms of the Lease, including without
limitation, claims for death, personal injury or property damage or other
loss or harm to any Person whatsoever, including, without limitation, any
passengers, shippers or other Persons wherever located, and claims relating
to any laws, rules or regulations, including, without limitation,
environmental control, noise and pollution laws, rules or regulation;
(iii) the manufacture, design, sale, return, purchase, acceptance,
rejection, delivery, non-delivery, condition, repair, modification,
servicing, rebuilding, airworthiness, registration, reregistration, import,
export, performance, non-performance, lease, sublease, transfer,
merchantability, fitness for use, alteration, substitution or replacement
of any Airframe, Engine, or Part under the Lease, the Purchase Agreement,
the Purchase Agreement Assignment, the GTA or the Engine Warranty
Assignment or other transfer of use or possession, or other disposition of
the Aircraft, the Airframe, any Engine or any Part including, without
limitation, latent and other defects, whether or not discoverable, strict
tort liability, and any claims for patent, trademark or copyright
infringement;
(iv) any breach of or failure to perform or observe, or any other
non-compliance with, any condition, covenant or agreement to be performed,
or other obligations of the Lessee under any of the Operative Agreements,
or the falsity or inaccuracy of any representation or warranty of the
Lessee in any of the Operative Agreements (other than representations and
warranties in the Tax Indemnity Agreement);
(v) the Collateral Account and the Liquid Collateral;
(vi) the enforcement of the terms of the Operative Agreements and
the administration of the Trust Indenture Estate; and
(vii) the offer, issuance, sale or delivery of any Certificate or any
Pass Through Certificate, or any refunding or refinancing thereof, or
interest in the Lessor's Estate or the Trust Agreement or any similar
interest or in any way relating to or arising out of the Trust Agreement
and the Lessor's Estate, the Indenture or the Trust Indenture Estate
(including, without limitation, any claim arising out of the Securities Act
of 1933, as amended, the Securities Exchange Act of 1934, as amended, or
any other federal or state statute, law or regulation, or at common law or
otherwise relating to securities), or the action or inaction of the Owner
Trustee or Indenture Trustee as trustees, in the manner contemplated by
this Agreement, the Indenture, the Indenture and Security Agreement
Supplement or the Trust Agreement and in the case of the Owner Participant,
its obligations arising under Section 6.01 of the Trust Agreement.
The foregoing indemnity by the Lessee is intended to include and cover, but is
not limited to, any Expense to which the Indemnitees may be subject as a
result of their respective ownership or leasing of any interest in or holding
of any Lien on the Aircraft, Airframe, any Engine or Part during the Term,
whether or not in the Lessee's possession or control, insofar as such Expense
relates to any activity or event whatsoever involving such item while it is
under lease to the Lessee (or after termination of the Lease in connection
with the exercise of remedies thereunder to the extent that such Expense is
attributable to the transactions contemplated hereby and by the other
Operative Agreements), and such Expense does not fall within any of the
exceptions listed in Section 9.01(b) hereof.
(b) Exceptions. The indemnity provided for in Section 9.01(a) shall
not extend to any Expense of any Indemnitee to the extent it:
(i) would not have occurred but for the willful misconduct or gross
negligence of such Indemnitee;
(ii) after the Delivery Date, is in respect of the Aircraft, and is
attributable to acts or events which occur after the Aircraft is no longer
part of the Lessor's Estate or, if the Aircraft remains a part of the
Lessor's Estate, after the expiration of the Term (unless the Aircraft is
being returned at such time, in which case after return of physical
possession; provided that if the Lease has been terminated pursuant to
Article 17 thereof, the indemnity provided in Section 9.01(a) hereof shall
survive for so long as Lessor or the Indenture Trustee shall be exercising
remedies under such Article 17), or to acts or events which occur after
return of possession of the Aircraft by the Lessee in accordance with the
provisions of the Lease (subject to the foregoing proviso if the Lessor has
terminated the Lease pursuant to Article 17 of the Lease) but in any such
case only to the extent not fairly attributable to acts or omissions of the
Lessee prior to expiration of the Term, including without limitation the
Lessee's failure to fully discharge all of its obligations under the Lease
or the other Operative Agreements;
(iii) is a Tax, whether or not the Lessee is required to indemnify
therefor pursuant to Article 8 hereof or pursuant to the Tax Indemnity
Agreement;
(iv) is a cost or expense required to be paid by the Owner
Participant or its permitted transferees (and not by the Lessee) pursuant
to this Agreement or any other Operative Agreement and for which the Lessee
is not otherwise obligated to reimburse the Owner Participant, directly or
indirectly pursuant to the terms of this Agreement or such other Operative
Agreement;
(v) would not have been incurred by such Indemnitee if such
Indemnitee had not been in breach of its representations or warranties, or
had not defaulted in the observance and performance of the terms and
provisions required to be observed and performed by it, in this Agreement,
the Purchase Agreement Assignment, the Lease, the Indenture, the Trust
Agreement or any other Operative Agreement to which it is a party unless
such breach or default shall be a result of the breach or default by the
Lessee of any of its obligations under the Operative Agreements or by
another Indemnitee of any of the foregoing;
(vi) [reserved];
(vii) is, in the case of the Owner Participant, Lessor's Liens to the
extent attributable to the Owner Participant; in the case of the Owner
Trustee, Lessor's Liens to the extent attributable to the Owner Trustee; in
the case of SSB, Lessor's Liens to the extent attributable to SSB; and in
the case of the Indenture Trustee, Indenture Trustee's Liens;
(viii) is, in the case of the Owner Participant or the Owner Trustee,
attributable to the offer or sale by such Indemnitee after the Certificate
Closing Date of any interest in the Aircraft, the Lessor's Estate or the
Trust Agreement or any similar interest (including an offer or sale
resulting from bankruptcy or other proceedings for the relief of debtors in
which such Indemnitee is the debtor), unless in each case such offer or
sale shall occur (x) in connection with a Refinancing, (y) as a result of
the occurrence of an Event of Default provided that either the Lease has
been declared in default or the transfer is pursuant to the exercise of
remedies under Article 17 of the Lease or (z) in connection with the
Lessee's exercise of its early termination option under Article 10 of the
Lease or its purchase options under Article 4 of the Lease or in connection
with Article 11 of the Lease;
(ix) is an Expense arising under or in connection with any
prohibited transaction, within the meaning of Section 406 of ERISA or
Section 4975(c)(1) of the Code ("Prohibited Transaction"); provided,
however, that in the event any prohibited transaction arises which is
not exempt under any class prohibited transaction exemption or any
individual or statutory prohibited transaction exemption (individually
or collectively, a "PTE") then the indemnity provided for herein shall
extend to any Expenses incurred by the Owner Participant (or any
Affiliate thereof) as the result of any Prohibited Transaction arising
out of the purchase or holding of any Certificates by an employee
benefit plan subject to Title I of ERISA or by a plan subject to Section
4975 of the Code (individually or collectively, an "ERISA Plan") with
respect to which the Owner Participant is a party in interest, within
the meaning of Section 3(14) of ERISA, or a disqualified person,within
the meaning of Section 4975 of the Code, except, however, that such
Indemnity shall not extend to any Expenses incurred by the Owner
Participant (or any Affiliate thereof) as the result of any Prohibited
Transaction occurring with respect to the purchase or holding of any
Certificates (A) over which purchase or holding the Owner Participant
(or an Affiliate thereof) has discretion or control (other than in the
capacity of a custodian, directed trustee or other similar
nondiscretionary capacity), or (B) by an ERISA Plan with respect to
which the Owner Participant (or any Affiliate thereof) is a "plan
sponsor" within the meaning of Section 3(16)(B) of ERISA.
Section 9.02. After-Tax Basis. The amount which the Lessee shall be
required to pay with respect to any Expense indemnified against under Section
9.01 shall be an amount sufficient to restore the Indemnitee, on an After-Tax
Basis, to the same position such party would have been in had such Expense not
been incurred. If any Indemnitee actually realizes a permanent Tax benefit by
reason of the payment of such Expense paid or indemnified against by the
Lessee which was not considered in the computation thereof, such Indemnitee
shall promptly pay to the Lessee, but not before the Lessee shall have made
all payments theretofore due such Indemnitee under this Agreement, the Tax
Indemnity Agreement and any other Operative Agreement, an amount equal to the
lesser of (x) the sum of such Tax benefit plus any other permanent Tax benefit
actually realized by such Indemnitee as the result of any payment made by such
Indemnitee pursuant to this sentence and (y) the amount of such payment
pursuant to this Section 9.02 by the Lessee to such Indemnitee plus the amount
of any other payments by the Lessee to such Indemnitee theretofore made
pursuant to this Section 9.02 less the amount of any payments by such
Indemnitee to the Lessee theretofore made pursuant to this Section 9.02 (and
the excess, if any, of the amount described in clause (x) above over the
amount described in clause (y) above shall be carried forward and applied to
reduce pro tanto any subsequent obligations of the Lessee to make payments to
such Indemnitee pursuant to this Section 9.02), it being intended that no
Indemnitee should realize a net Tax benefit pursuant to this Section 9.02
unless the Lessee shall first have been made whole for any payments by it to
such Indemnitee pursuant to this Section 9.02; provided, however, that
notwithstanding the foregoing portions of this sentence, such Indemnitee shall
not be obligated to make any payment to the Lessee pursuant to this sentence
so long as an Event of Default shall have occurred and be continuing. Any
Taxes that are imposed on any Indemnitee as a result of the disallowance or
reduction of such Tax benefit referred to in the next preceding sentence in a
taxable year subsequent to the year of allowance and utilization by such
Indemnitee (including the expiration of any tax credit carryovers or
carrybacks of such Indemnitee that would not otherwise have expired) shall be
indemnifiable pursuant to the provisions of Section 8.01 hereof without regard
to Section 8.01(b) hereof.
Section 9.03. Subrogation. Upon the payment in full of any
indemnity pursuant to this Article 9 by the Lessee (but not earlier), the
Lessee shall be subrogated to any right of the Indemnitee, other than with
respect to any of such Indemnitee's insurance policies or in connection
with any indemnity claim the Person indemnified may have against any other
Indemnitee in respect of the matter against which such indemnity has been
made.
Section 9.04. Notice and Payment. Each Indemnitee and the Lessee
shall give prompt written notice one to the other of any liability of which
such party has received notice for which the Lessee is, or may be, liable
under this Article 9; provided, however, that failure to give such notice
shall not terminate any of the rights of the Indemnitees under this Article 9,
except (with respect to such Indemnitee) to the extent that the Lessee has
been materially prejudiced by the failure to provide such notice. Unless
otherwise provided in the Operative Agreements, any amount payable to an
Indemnitee pursuant to this Article 9 shall be paid within 30 days after
receipt of a written demand therefor from such Indemnitee accompanied by a
written statement describing in reasonable detail the basis for such indemnity
and the computation of the amount so payable.
Section 9.05. Refunds. If any Indemnitee shall obtain a recovery of
all or any part of any amount which the Lessee shall have paid to such
Indemnitee or for which the Lessee shall have reimbursed such Indemnitee under
this Article 9, and provided there shall not have occurred a Payment Default
or an Event of Default (in which case payment shall not be made to the Lessee
until such Payment Default or Event of Default shall have been cured) such
Indemnitee shall pay to the Lessee the amount of any such recovery, including
interest received with respect to the recovery, net of any Taxes paid or
payable as a result of the receipt of the recovery and interest, plus any net
additional permanent income tax benefits actually realized by Indemnitee as
the result of any payment made pursuant to this sentence less any reasonable
costs and expense of any Indemnitee not reimbursed by the Lessee; provided,
however, that such amount shall not be payable (a) before such time as the
Lessee shall have made all payments or indemnities then due and payable to
such Indemnitee under this Article 9 or (b) to the extent that the amount of
such payment would exceed the amount of all prior payments by the Lessee to
such Indemnitee pursuant to this Article 9, less the amount of all prior
payments by such Indemnitee to the Lessee pursuant to this Article 9. Any
subsequent loss of such recovery or tax benefit shall be subject to
indemnification under Article 8 or this Article 9, as the case may be, but
without regard to Section 8.01(b) hereof, other than Section 8.01(b)(v)
hereof.
Section 9.06. Defense of Claims. The Lessee or its insurers shall
have the right (in each such case at the Lessee's sole expense) to investigate
or, provided that (i) the Lessee or its insurers shall not reserve the right
to dispute liability with respect to any insurance policies pursuant to which
coverage is sought, (ii) in the case of the Lessee, no Payment Default or
Event of Default shall have occurred and be continuing or shall arise at any
time during the claim and (iii) the Lessee shall have first acknowledged in
writing to such Indemnitee the Lessee's obligation to indemnify such
Indemnitee hereunder in respect of such claim, defend any such claim
covered by insurance for which indemnification is sought pursuant to this
Article 9 and each Indemnitee shall cooperate with the Lessee or its
insurers with respect thereto, and provided, further, the Lessee shall not
be entitled to assume and control the defense of any such claim if and to
the extent (A) such Indemnitee reasonably objects to such control on the
ground that an actual or potential material conflict of interest exists
where it is advisable for such Indemnitee to be represented by separate
counsel or on the grounds that such proceeding involves the potential
imposition of criminal liability on such Indemnitee or (B) such proceeding
will involve any material danger of the sale, forfeiture or loss of, or the
creation of any Lien on the Aircraft or the Trust Estate (unless the Lessee
posts a bond or other security reasonably acceptable in form and substance
to such Indemnitee) or involve any material risk of civil liability to such
Indemnitee for which it is not indemnified hereunder. Subject to the
immediately foregoing sentence, where the Lessee or the insurers under a
policy of insurance maintained by the Lessee undertake the defense of an
Indemnitee with respect to such a claim, no additional legal fees or
expenses of such Indemnitee in connection with the defense of such claim
shall be indemnified hereunder unless the fees or expenses were incurred at
the written request of the Lessee or such insurers. Subject to the
requirement of any policy of insurance applicable to a claim, an Indemnitee
may participate at its own expense at any judicial proceeding controlled by
the Lessee or its insurers pursuant to the preceding provisions, to the
extent that such party's participation does not, in the opinion of the
independent counsel appointed by the Lessee or its insurers to conduct such
proceedings, interfere with such control; and such participation shall not
constitute a waiver of the indemnification provided in this Section 9.06.
No Indemnitee shall enter into any settlement or other compromise with
respect to any claim described in this Section 9.06 without the prior
written consent of the Lessee, which consent shall not unreasonably be
withheld or delayed, unless such Indemnitee waives its right to be
indemnified under this Article 9 with respect to such claim. The Lessee
shall not enter into any settlement or compromise which the Lessee has not
agreed to discharge or with respect to which the Lessee has not agreed to
indemnify such Indemnitee to such Indemnitee's satisfaction or which admits
any criminal violation, gross negligence or willful misconduct on the part
of any Indemnitee without the prior written consent of such Indemnitee.
Section 9.07. Survival of Obligations. The representations,
warranties, indemnities and agreements of the Lessee provided for in this
Article 9 and the Lessee's obligations under any and all of them shall survive
the expiration or other termination of this Agreement, the Tax Indemnity
Agreement, the Trust Agreement, the Indenture, the Purchase Agreement
Assignment, the Engine Warranty Assignment, the Lease and the other Operative
Agreements but, as to such indemnities after the expiration or other
termination of the Lease, only with respect to losses, liabilities,
obligations, damages, penalties, claims, actions, suits, costs, Expenses and
disbursements caused by events occurring or existing (or fairly attributable
to the Lessee's acts or omissions) prior to such termination or expiration or
incurred in the process of (i) the return or disposition of the Aircraft under
Article 12 or Article 17 of the Lease, or (ii) the termination of the Lease or
the Indenture or, if later, the return of the Aircraft.
Section 9.08. Effect of Other Indemnities. The Lessee's obligations
under the indemnities provided for in this Agreement shall be those of a
primary obligor whether or not the Person indemnified shall also be
indemnified with respect to the same matter under the terms of this Agreement,
the Lease, the Indenture, the Trust Agreement, or any other document or
instrument, and the Person seeking indemnification from the Lessee pursuant to
any provision of this Agreement may proceed directly against the Lessee
without first seeking to enforce any other right of indemnification.
Section 9.09. Interest. The Lessee will pay to each Indemnitee on
demand, to the extent permitted by applicable law, interest on any amount of
indemnity not paid when due pursuant to this Article 9 until the same shall be
paid, at the Past Due Rate.
Section 9.10. Special Indemnity. Notwithstanding anything in this
Article 9 to the contrary, the Lessee shall hold the Owner Participant
harmless on an After-Tax Basis from any Taxes or losses arising from or in
connection with the transactions contemplated by Section 17.02 hereof.
ARTICLE 10
TRANSACTION COSTS
Section 10.01. Transaction Costs and Other Costs. (a) Transaction
Costs. The Owner Participant shall pay (or reimburse the Lessee if the Lessee
shall have previously made such payment) all fees and expenses of the
following persons relating to the public offering of the Pass Through
Certificates contemplated by the Underwriting Agreement and related to the
transactions contemplated hereby on the Certificate Closing Date and the
Delivery Date: (i) the fees and expenses of counsel for the Owner Participant;
(ii) the fees and expenses of the transaction documentation counsel for the
Lessee and counsel for the Owner Trustee, the Indenture Trustee, the
Subordination Agent, the Pass Through Trustee, each Liquidity Provider and the
Underwriters (other than those fees, expenses and disbursements payable by the
Underwriters pursuant to the Underwriting Agreement); (iii) the fees and
expenses of Daugherty, Fowler & Peregrin; (iv) any initial fees and expenses
of the Pass Through Trustee and each Liquidity Provider and the fees and
expenses of the Owner Trustee, the Subordination Agent and the Indenture
Trustee; (v) any compensation, commissions and discounts payable to the
Underwriters pursuant to the Underwriting Agreement; (vi) the fees, if any,
incurred in printing the Pass Through Certificates; (vii) the fees and
expenses incurred in connection with printing any amendment to the
Registration Statement on Form S-3 bearing Registration No. 333-07691,
printing any Preliminary Prospectus or Prospectus (as such terms are defined
in the Underwriting Agreement) for the offering of the Pass Through
Certificates; (viii) the fees and expenses of Arthur Andersen LLP; (ix) the
fees and expenses of Moody's and S&P; (x) the fees and expenses (including
computer time-sharing charges) of First Chicago Leasing Corporation; (xi) the
reasonable out-of-pocket expenses of the Owner Participant, including, without
limitation, any amounts paid in connection with any appraisal report prepared
on behalf of the Owner Participant; (xii) reimbursement to the Owner
Participant, the Owner Participant Guarantor, the Owner Trustee, the Indenture
Trustee, the Subordination Agent, each Liquidity Provider and the Pass Through
Trustee for any and all fees, expenses and disbursements of the character
referred to above or otherwise incurred in connection with the negotiation,
preparation, execution and delivery, filing and recording of the Operative
Agreements and the documents contemplated thereby, including, without
limitation, travel expenses and disbursements which shall have been paid by
such party; (xiii) printing and duplicating expenses and all fees, taxes and
other charges payable in connection with the recording or filing on or
before the Delivery Date of the instruments described in this Agreement;
(xiv) initial fees, initial expenses, initial disbursements and the initial
costs of distributing the Certificates (but not the continuing fees,
expenses, disbursements and costs of distribution) of SSB, as lessor under
the Lease and as Owner Trustee under the Trust Agreement and with respect
to the administration of the Lease and the Lessor's Estate, of the
Indenture Trustee as trustee under the Indenture with respect to the
administration of the Trust Indenture Estate and of the Subordination Agent
acting under the Intercreditor Agreement; and (xv) any other amounts
approved by the Lessee and the Owner Participant. The fees and expenses
described in clauses (ii) through (x) of this paragraph shall be allocable
to the Owner Participant under this Agreement (1) to the extent incurred
specifically with respect to the Owner Participant, and (2) to the extent
such fees and expenses are incurred but are not specifically attributable
to the Owner Participant, in the proportion that the principal amount of
the Certificates bears to the total amount of the Pass Through
Certificates.
The Owner Participant, the Owner Trustee and the Lessee acknowledge
that the percentages for Basic Rent, Stipulated Loss Value and Termination
Value set forth in the Lease have been prepared assuming the aggregate amount
payable by the Owner Participant pursuant to the preceding paragraph is 1.22%
of the Purchase Price (the "Estimated Expense Amount"). Transaction Costs
shall be paid in the manner provided in Section 3.04 hereof.
(b) Continuing Expenses. The continuing fees, expenses and
disbursements (including reasonable counsel fees and expenses) of the entity
acting as Owner Trustee, as lessor under the Lease and as Owner Trustee under
the Trust Agreement with respect to the administration of the Lease and the
Lessor's Estate and the continuing fees, expenses and disbursements (including
reasonable counsel fees and expenses and initial fees relating to the
establishment of any replacement trustee) of the Indenture Trustee, as trustee
under the Indenture with respect to the administration of the Trust Indenture
Estate, the continuing fees, expenses and disbursements (including reasonable
counsel fees and initial fees relating to the establishment of a replacement
trustee) of the Pass Through Trustee and the Subordination Agent and the
continuing fees, expenses and disbursements (including reasonable counsel fees
and initial fees relating to the establishment of a replacement liquidity
provider) of the Liquidity Providers under each Liquidity Facility shall be
paid as Supplemental Rent by the Lessee, including without limitation any
amounts payable to the Indenture Trustee or on account of requests by the
Indenture Trustee for indemnification under Article XI of the Indenture.
(c) Amendments, Supplements and Appraisal. Without limitation of
the foregoing, the Lessee agrees:
(i) to pay as Supplemental Rent to the Owner Trustee, the Owner
Participant, Owner Participant Guaranty, the Indenture Trustee, the
Subordination Agent, the Liquidity Providers and the Pass Through Trustee
all costs and expenses (including reasonable legal fees and expenses)
incurred by any of them in connection with (a) any Default or Event of
Default and any enforcement or collection proceedings resulting therefrom,
or (b) the enforcement of the obligations of the Lessee hereunder or under
the other Operative Agreements, including, without limitation, the entering
into or giving or withholding of any amendments or supplements or waivers
or consents (whether or not consummated), including without limitation, any
amendment, supplement, waiver or consent resulting from any work-out,
restructuring or similar proceeding relating to the performance or
nonperformance by the Lessee of its obligations under the Operative
Agreements or (c) any amendment, supplement, waiver or consent (whether or
not entered into) under this Agreement, the Lease, the Indenture, the
Certificates, the Tax Indemnity Agreement, the Purchase Agreement
Assignment or any other Operative Agreement or document or instrument
delivered pursuant to any of them, which amendment, supplement, waiver or
consent is required by any provision of any Operative Agreement (including
any adjustment pursuant to Section 3.04 of the Lease) or is requested by
the Lessee or necessitated by the action or inaction of the Lessee;
provided, however, that the Lessee shall not be responsible for fees and
expenses incurred in connection with the offer, sale or other transfer
(whether pursuant to Section 7.03(d) hereof or otherwise) by the Owner
Participant after the Certificate Closing Date of any interest in the
Aircraft, the Lessor's Estate, the Beneficial Interest or the Trust
Agreement or any similar interest (and the Owner Participant shall be
responsible for all such fees and expenses), unless such offer, sale or
transfer shall occur (A) after the Lease has been declared in default or if
the transfer is pursuant to the exercise of remedies under Article 17 of
the Lease or (B) in connection with the termination of the Lease or action
or direction of the Lessee pursuant to Section 4.02, Article 10 or Article
11 of the Lease; and
(ii) to pay the fees, costs and expenses of all appraisers involved
in an independent appraisal of the Aircraft to the extent required under
Section 4.03 of the Lease.
ARTICLE 11
SUCCESSOR OWNER TRUSTEE
Section 11.01. Appointment of Successor Owner Trustee. (a)
Resignation and Removal. The Owner Trustee or any successor Owner Trustee may
resign or may be removed by the Owner Participant, and a successor Owner
Trustee may be appointed and a Person may become Owner Trustee under the Trust
Agreement only in accordance with the provisions of Section 3.11 of the Trust
Agreement and the provisions of paragraphs (b) and (c) of this Section 11.01.
(b) Conditions to Appointment. The appointment in any manner of a
successor Owner Trustee pursuant to Section 3.11 of the Trust Agreement shall
be subject to the following conditions:
(i) Such successor Owner Trustee shall be a Citizen of the United
States;
(ii) Such successor Owner Trustee shall be a bank or a trust company
having combined capital, surplus and undivided profits of at least
$100,000,000 or a bank or trust company fully guaranteed by a direct or
indirect parent thereof having a combined capital, surplus and undivided
profits of at least $100,000,000;
(iii) Such appointment shall not violate any provisions of the
Transportation Code or any applicable rule or regulation of the applicable
regulatory agency or body of any other jurisdiction in which the Aircraft
may then be registered or create a relationship which would be in violation
of the Transportation Code or any applicable rule or regulation of the
applicable regulatory agency or body of any other jurisdiction in which the
Aircraft may then be registered;
(iv) Such successor Owner Trustee shall enter into an agreement
or agreements, in form and substance reasonably satisfactory to the
Lessee, the Owner Participant, the Pass Through Trustee and the
Indenture Trustee whereby such successor Owner Trustee confirms that it
shall be deemed a party to this Agreement, the Trust Agreement, the
Lease, the Lease Supplement, the Purchase Agreement Assignment, the
Engine Warranty Assignment, the Indenture, the Indenture Supplement and
any other Operative Agreement to which the Owner Trustee is a party and
agrees to be bound by all the terms of such documents applicable to the
Owner Trustee and makes the representations and warranties contained in
Section 7.04 hereof (except that it may be duly incorporated, validly
existing and in good standing under the laws of the United States of
America or any State thereof); and
(v) All filings of Uniform Commercial Code financing and continuation
statements, filings in accordance with the Transportation Code and
amendments thereto shall be made and all further actions taken in
connection with such appointment as may be necessary in connection with
maintaining the validity, perfection and priority of the Lien of the
Indenture and the valid and continued registration of the Aircraft in
accordance with the Transportation Code.
(c) Appointment. For so long as the Aircraft remains registered
under the Transportation Code, the Owner Participant agrees to appoint
promptly a successor Owner Trustee meeting the requirements of Section
11.01(b) hereof in the event the Owner Participant has knowledge that the
Owner Trustee at any time shall not be a Citizen of the United States.
ARTICLE 12
LIABILITIES AND INTERESTS OF THE OWNER PARTICIPANT AND HOLDERS
Section 12.01. Liabilities of the Owner Participant. The Owner
Participant shall have no obligation or duty to the Lessee or to any Holder
with respect to the transactions contemplated by this Agreement, except those
obligations or duties expressly set forth in this Agreement, the Indenture,
the Trust Agreement, the Tax Indemnity Agreement, AVSA's FAA Bill of Sale,
AVSA's Warranty Bill of Sale, the Lease or any other Operative Agreement to
which the Owner Participant is a party and the Owner Participant shall not be
liable for the performance by any party hereto of such other party's
obligations or duties hereunder. Under no circumstances shall the Owner
Participant as such be liable to the Lessee, nor shall the Owner
Participant be liable to any Holder, for any action or inaction on the part
of the Owner Trustee or the Indenture Trustee in connection with this
Agreement, the Indenture, the Lease, the Trust Agreement, the Purchase
Agreement Assignment, the Engine Warranty Assignment, any other Operative
Agreement, the ownership of the Aircraft, the administration of the
Lessor's Estate or the Trust Indenture Estate or otherwise, whether or not
such action or inaction is caused by the willful misconduct or gross
negligence of the Owner Trustee or the Indenture Trustee.
Section 12.02. Interest of Holders of Certificates. A Holder of a
Certificate shall have no further interest in, or other right with respect to,
the Trust Indenture Estate when and if the principal and interest on all
Certificates held by such Holder and all other sums payable to such Holder
under this Agreement, under the Indenture and under such Certificates shall
have been paid in full.
ARTICLE 13
OTHER DOCUMENTS
Section 13.01. Consent of Lessee to Other Documents. The Lessee
hereby consents in all respects to the execution and delivery of the
Indenture, the Intercreditor Agreement and the Liquidity Facilities and to all
of the terms of said documents, and the Lessee acknowledges receipt of an
executed counterpart of such documents; it being agreed that such consent
shall not be construed to require the Lessee's consent to any future
supplement to, or amendment, waiver or modification of the terms of the
Indenture, the Intercreditor Agreement or the Liquidity Facilities or the
Certificates, except that prior to the occurrence and continuance of an Event
of Default, no section of the Indenture, the Trust Agreement, the
Intercreditor Agreement or the Liquidity Facilities shall be amended or
modified in any manner materially adverse to the Lessee without its consent.
Section 13.02. Further Assurances. The Lessee hereby confirms to
the Owner Participant its covenants set forth in and obligations under the
Lease. The Lessee agrees that, except as otherwise provided in the
Indenture, the Owner Trustee may not enter into any amendment, modification
or supplement of, or give any waiver or consent with respect to, or approve
any matter or document as being satisfactory under the Lease without the
prior consent of the Indenture Trustee and the Owner Participant and that,
except as otherwise provided in the Indenture, upon an Indenture Event of
Default, the Indenture Trustee may act as the Lessor under the Lease to the
exclusion of the Owner Trustee. The Lessee further agrees to deliver to
the Indenture Trustee and the Owner Participant a copy of each notice,
statement, request, report or other communication given or required to be
given to the Owner Trustee under the Lease.
Section 13.03. Pass Through Trustee's and Subordination Agent's
Acknowledgment. The Pass Through Trustee and the Subordination Agent hereby
acknowledge and agree to be bound by all of the terms and conditions of the
Indenture, including without limitation, Section 8.01 thereof regarding the
rights of the Owner Participant to purchase the Certificates under
circumstances specified therein.
ARTICLE 14
NOTICES
Section 14.01. Notices. All notices, demands, declarations and
other communications required by this Agreement shall be in writing and
shall be deemed received (a) if given by telecopier, when transmitted and
the appropriate telephonic confirmation received if transmitted on a
Business Day and during normal business hours of the recipient, and
otherwise on the next Business Day following transmission, (b) if given by
certified mail, return receipt requested, postage prepaid five Business
Days after being deposited in the United States mail and (c) if given by
FedEx service (or, if a Default or Event of Default shall have occurred and
be continuing, by other comparable courier service), when received or
personally delivered, addressed:
(a) If to the Lessee, to its office at 2007 Corporate Avenue,
Memphis, Tennessee 38132, Attention: Vice President and Treasurer with a
copy to Senior Vice President and General Counsel at 1980 Nonconnah
Boulevard, Memphis, Tennessee 38132, telephone (901) 395-3388, facsimile
(901) 395-4758; or to such other address as the Lessee shall from time to
time designate in writing to the Lessor, the Indenture Trustee and the
Owner Participant;
(b) If to the Lessor or the Owner Trustee, to it c/o State Street
Bank and Trust Company, Two International Place, 4th Floor, Boston,
Massachusetts 02110, Attention: Corporate Trust Department, telephone (617)
664-5526, facsimile (617) 664-5371; or to such other address as the Lessor
shall from time to time designate in writing to the Lessee and the
Indenture Trustee, with a copy to the Owner Participant;
(c) If to the Owner Participant, to its office at 200 First Stamford
Place, Stamford, Connecticut 06902, Attention: Vice President Leasing with
a copy to Director, Portfolio Administration, telephone (914) 335-5000,
facsimile 914 335-8301, or to such other address as the Owner Participant
may from time to time designate in writing to the Lessee and the Indenture
Trustee;
(d) If to the Indenture Trustee, the Subordination Agent or the Pass
Through Trustee, to its office at 79 South Main Street, Salt Lake City,
Utah 84111, Attention: Corporate Trust Department, telephone (801)
246-5053, facsimile (801) 246-5630; or to such other address as the
Indenture Trustee or the Pass Through Trustee, as the case may be, shall
from time to time designate in writing to the Lessor, the Lessee and the
Owner Participant; and
(e) If to a Liquidity Provider, to its office at 125 West 55th
Street, New York, New York 10019, Attention: General Manager, telephone
(212) 541-0600, facsimile (212) 956-5580; or to such other address as a
Liquidity Provider shall from time to time designate in writing to the
Lessor, the Lessee and the Indenture Trustee.
ARTICLE 15
REFINANCING/REOPTIMIZATION
Section 15.01. Refinancing. (a) Subject to the terms and
conditions of this Section 15.01, the Lessee may request the Owner Participant
to participate in up to two refinancings in whole but not in part, of the
Certificates prior to the end of the Basic Term (a "Refinancing"). Such
Refinancings may be placed in either the private or public markets and shall
be denominated in United States dollars (or in any other foreign currency so
long as the Owner Participant is satisfied there is no foreign currency risk
to it), and shall be on terms that do not materially adversely affect the
Owner Participant. The Owner Participant agrees to negotiate promptly in good
faith to conclude an agreement with the Lessee as to the terms of any such
Refinancing transaction (including the terms of any debt to be issued in
connection with such refinancing and the documentation to be executed in
connection therewith). Without the prior written consent of the Owner
Participant, the prospectus and other offering materials relating to any
Refinancing in the form of a public offering shall not identify the Owner
Participant and shall not include any financial statements of the Owner
Participant or any Affiliate thereof. In connection with any such Refinancing
in the form of a public offering, the Lessee shall indemnify the Owner
Participant in a manner satisfactory to it for any liabilities under federal,
state or foreign securities laws resulting from such offering. The aggregate
principal amount of the new Certificates issued in connection with each
Refinancing shall be the same as the aggregate principal amount outstanding on
the Certificates being refinanced.
(b) Notwithstanding anything herein to the contrary, no Refinancing
will be permitted unless the Owner Participant and the Indenture Trustee shall
have received at least 15 days' prior written notice of the scheduled closing
date of such Refinancing and the Owner Participant shall have been provided
such longer period as it shall have required for a reasonable opportunity to
review the relevant documentation and the Owner Participant shall have
determined in good faith that neither it nor the Owner Trustee shall suffer
any loss or expense or bear any increased risk as a result of such Refinancing
(including, without limitation, any risk with respect to taxes or other
adverse consequences to the Owner Participant including the application of
Revenue Procedures 75-21 and 75-28 and Section 467 of the Code) for which it
has not been or will not have been indemnified by the Lessee in a manner
reasonably satisfactory to the Owner Participant, nor shall its rights against
all other parties taken as a whole be adversely affected compared to such
rights in effect under the Operative Agreements prior to such proposed
Refinancing.
Prior to the consummation of any Refinancing pursuant to this Section
15.01, the Owner Participant and the Lessee shall agree upon a schedule
setting forth each installment of Basic Rent and setting forth Stipulated Loss
Values and Termination Values payable pursuant to the Lease as a result of the
Refinancing in accordance with Section 3.04 of the Lease, and thereafter the
amounts set forth in such schedule shall become the amounts payable under the
Lease. Upon the consummation of the Refinancing, the evidence of indebtedness
issued pursuant to the Refinancing shall be considered "Certificates" for
purposes of this Agreement, the Lease and the Indenture.
(c) Notwithstanding the foregoing, the Owner Participant shall have
no obligation to proceed with any Refinancing transaction as contemplated by
this Section 15.01 unless the Lessee indemnifies the Owner Trustee and the
Owner Participant by agreement in form and substance satisfactory to each of
them, for any liability, obligation (other than the obligation to pay
principal and interest in respect of the refinanced indebtedness), cost or
expense (including, without limitation, reasonable attorneys' fees and
Make-Whole Premium or other amounts due under the Indenture), including any
adverse tax consequences or impact, related to or arising out of any such
Refinancing transaction.
(d) Without the prior written consent of the Owner Participant,
which consent may be withheld in its sole discretion, no such refinancing
shall (1) cause the aggregate principal amount of the indebtedness to be
substituted for the Certificates to exceed the aggregate principal amount
of the then outstanding Certificates, (2) cause the weighted average life
of such indebtedness to be different by more than 6 months than the
remaining weighted average life of the then outstanding Certificates, or
(3) cause the date of maturity of such indebtedness to be later than the
date of maturity of the Certificates being refinanced.
(e) Each party agrees to take or cause to be taken all requested
action, including, without limitation, the execution and delivery of any
documents and instruments, including, without limitation, amendments or
supplements to the Lease, which may be reasonably necessary or desirable to
effect such Refinancing, including, in the case of the Owner Participant,
direction to the Owner Trustee by the Owner Participant to prepay the
Certificates then outstanding; provided, however, that such Refinancing shall
be subject to the satisfaction of each of the following conditions:
(i) Payment of principal, accrued interest, Make-Whole Premium
and breakage costs, if any, and all other sums due and owing on the
Certificates payable under the Indenture;
(ii) Payment in full of all other amounts then due and owing by the
Lessee under this Agreement, the Indenture, the Lease, the Trust Agreement,
and the Certificates then outstanding shall have been made by the Lessee;
(iii) Such party shall have received such opinions of counsel
(including, without limitation, an opinion received by the Owner
Participant from independent tax counsel reasonably satisfactory to the
Lessee that such Refinancing shall not result in any adverse tax
consequences to such Owner Participant, unless the Lessee shall have agreed
to provide an indemnity in respect thereof reasonably satisfactory in form
and substance to the Owner Participant), certificates and other documents
as it may reasonably request, each in form and substance reasonably
satisfactory to such party;
(iv) All authorizations, approvals and consents which in the
reasonable judgment of the Owner Participant are necessary for such
Refinancing shall have been obtained;
(v) The Lessee shall have provided or agreed to provide to the
Owner Participant, as Supplemental Rent under the Lease, sufficient
funds to pay any breakage costs, Make-Whole Premium and any other
amounts due under the Indenture;
(vi) The satisfaction or waiver by each other party to this
Agreement of the conditions set forth in this Section 15.01 to such
party's obligations under this Section 15.01;
(vii) No Payment Default, Bankruptcy Default or Event of Default
shall have occurred and be continuing or would occur immediately after
giving effect to such Refinancing;
(viii) In the event the Lessee shall not prohibit the purchase of
the Refinancing loan certificates by, or with the assets of, an employee
benefit plan, as defined in Section 3(3) of ERISA, which is subject to
Title I of ERISA or a plan or individual retirement account, which is
subject to Section 4975(c) of the Code, (individually or collectively, an
"ERISA Plan"), the Lessee will permit the placement of the Refinancing loan
certificates with an ERISA Plan only if either (A) if such placement is in
the form of pass through certificates, the sole underwriter or the manager
or co-manager of the underwriting syndicate or the selling or placement
agent of the Refinancing loan certificates represents to the Lessee that it
has a prohibited transaction exemption from the U.S. Department of Labor
with respect to pass through certificates (such as Prohibited Transaction
Exemption 89-88 or any other comparable exemption) or (B) purchasers of the
Refinancing loan certificates provide a representation (which may be in the
form of a deemed representation) regarding their source of funds used in
acquiring the Refinancing loan certificates and, if such purchasers
represent that they are using funds of an ERISA Plan in acquiring the
Refinancing loan certificates, such purchasers further represent that (1)
either they are relying on a prohibited transaction exemption from the U.S.
Department of Labor with respect to their purchase and holding of the
Refinancing loan certificates and they provide representations regarding
the satisfaction of the relevant conditions of such an exemption or (2)
their purchase and holding of the Refinancing loan certificates will not
constitute a non-exempt prohibited transaction under Section 406 of
ERISA or Section 4975 of the Code. The reliance on any such exemption
will not be conditional on the Owner Participant's representation
concerning its party in interest or other status with respect to ERISA
Plans. If neither exemption referred to in clause (A) or (B) of this
paragraph (viii) is valid or applicable in any respect to the purchase
and holding of the Refinancing loan certificates, or if the
representation in clause (B) of this paragraph (viii) that such purchase
and holding will not constitute a non-exempt prohibited transaction is
not correct, whichever is applicable, then the Lessee shall indemnify
the Owner Participant pursuant to, and to the extent provided for, under
Sections 8 and 9 hereof for Taxes and Expenses resulting from any
"prohibited transaction", within the meaning of Section 406 of ERISA or
Section 4975(c)(1) of the Code, occurring with respect to the placement
of the Refinancing loan certificates with, or the holding of the
Refinancing loan certificates by, any ERISA Plan with respect to which
the Owner Participant is a party in interest, within the meaning of
Section 3(14) of ERISA, or a disqualified person, within the meaning of
Section 4975 of the Code, provided, however, that if the Lessee shall
fail to obtain either of the representations set forth in clause (A) or
(B) of this paragraph (viii), such indemnity shall not be subject to the
exceptions set forth under Sections 8.01(b)(xii)(A) and (B) and
9.01(b)(ix)(A) and (B) hereof; and
(ix) The Lessee shall pay all costs and expenses (including legal
fees) incurred in connection with any proposed or actually consummated
Refinancing.
Section 15.02. Reoptimization. (a) If a Change in Tax Rate occurs
prior to the end of the Basic Term, then, subject to the terms and conditions
of this Section 15.02 and Section 3.04 of the Lease, the Owner Participant
may, upon 30 days' prior notice to the Lessee, the Indenture Trustee, the
Owner Trustee and the Holders, elect to modify the schedule of payments of
principal of the certificates issued ("Refinancing Certificates") in
connection with any Refinancing using private debt (not including debt issued
pursuant to an exemption from registration under the Securities Act relying on
Rule 144A promulgated thereunder but otherwise marketed in a manner
substantially similar to securities registered under the Securities Act, and
not including debt issued in connection with any offering of securities
registered under the Securities Act) due on each remaining Rent Payment Date
on or commencing on the Rent Payment Date next succeeding the date mutually
agreed to by the Owner Participant, the Lessee and the Indenture Trustee on
which the Owner Participant shall make such modification (the "Reoptimization
Date"). Promptly after making such modification, the Owner Participant shall
furnish each party hereto written notice of the amounts so recalculated.
(b) Adjustments to Refinancing Certificates. On the Reoptimization
Date, subject to the satisfaction on or before the Reoptimization Date of the
conditions set forth in Section 15.02(c), the Owner Trustee will issue and
deliver and the Indenture Trustee will authenticate, and each holder of a
Refinancing Certificate will accept delivery of, a new Refinancing Certificate
or Refinancing Certificates (in replacement of each Refinancing Certificate
then held by such holder, which Refinancing Certificates shall be surrendered
to the Indenture Trustee for cancellation) containing such changed principal
installments (expressed as a percentage of the original principal amount of
such Refinancing Certificate) as shall have been recalculated by the Owner
Participant, but in the same principal amount as, and containing terms
identical to, except as otherwise contemplated by Section 15.02(d) hereof, the
Refinancing Certificates originally issued in connection with the Operative
Agreements.
(c) Conditions to the Obligations of the Holders of the Refinancing
Certificates on the Reoptimization Date. The obligation of each holder of a
Refinancing Certificate to accept delivery of a new Refinancing Certificate on
the Reoptimization Date, and to surrender on such Reoptimization Date any
Refinancing Certificate then held by it, is subject to the following
conditions precedent having been satisfied on or before the Reoptimization
Date:
(i) the requirements of Section 15.02(d) hereof shall have been
satisfied;
(ii) the following documents, in form and substance satisfactory to
such Holder, shall have been duly authorized, executed and delivered by the
party or parties thereto and shall be in full force and effect: (A) if the
payments of Basic Rent, Stipulated Loss Values and Termination Values with
respect to the Term have been changed, an amendment to the Lease, dated the
Reoptimization Date, (B) an amendment to the Indenture setting forth any
changed repayment schedule to the Refinancing Certificates, dated the
Reoptimization Date and duly filed (or in the process of being so duly
filed) for recordation with the Aeronautics Authority and (C) replacement
Refinancing Certificates; and
(iii) in connection with any Reoptimization the Owner Participant
shall pay or agree to pay all reasonable costs and expenses incurred by the
Lessee, the Owner Trustee, the Indenture Trustee and each Holder of a
Refinancing Certificate (including, without limitation, reasonable legal
fees and expenses) in connection with any such reoptimization.
(d) Payment Schedules. Except as otherwise provided in this
Section 15.02 as long as the Refinancing Certificates remain outstanding,
the payment schedules for the Refinancing Certificates shall not be
modified.
ARTICLE 16
[RESERVED]
ARTICLE 17
MISCELLANEOUS
Section 17.01. Owner for Federal Tax Purposes. It is hereby agreed
between the Owner Participant and the Lessee (but the Lessee makes no
representation to such effect) that it is the intent of the parties for
Federal, state, local and foreign income tax purposes that the Owner
Participant will be treated as the owner of the Aircraft and the Lessee will
be treated as the lessee of the Aircraft.
Section 17.02. Collateral Account. (a) The Indenture Trustee shall
notify the Owner Trustee and the Lessee of any losses incurred on the
Specified Investments in the Collateral Account promptly upon the realization
thereof, as well as any fees, commissions and other costs, Taxes (other than
income taxes) and expenses, if any, incurred by the Indenture Trustee in
connection with its administration of the Collateral Account (collectively,
"Losses"). Promptly upon receipt of such notification but, in any event, no
later than the earlier of the Delivery Date (or, if later, the last day of any
investment period referred to in Section 2.14(b) of the Indenture during which
the Delivery Date occurs) and the 15th day after the Cut-Off Date, the Lessee
shall pay to the Indenture Trustee, on behalf of the Owner Trustee, for
deposit into the Collateral Account, an amount equal to such Losses (net of
any investment earnings).
(b) The Lessee shall pay to the Indenture Trustee, on behalf of the
Owner Trustee (A) on each Payment Date prior to the Delivery Date an amount
equal to the aggregate amount of interest accrued on the Certificates from
(and including) the Certificate Closing Date or previous Payment Date, as the
case may be, to, but excluding, such Payment Date and (B) on the first Payment
Date subsequent to the Delivery Date, interest accrued on the Certificates
from and including the last Payment Date (or, if none, the Certificate Closing
Date), to, but excluding, the Delivery Date. In addition, the Lessee will pay
to the Indenture Trustee on behalf of the Owner Trustee all amounts owed by
the Owner Trustee pursuant to clause (b) of the last paragraph of Section 2.04
of the Indenture.
(c) If the Aircraft has not been purchased by the Owner Trustee
on the Delivery Date, the Lessee agrees to pay to the Indenture Trustee, on
behalf of the Owner Trustee, on the 15th day following the Cut-Off Date the
excess, if any, of the amounts payable under Section 6.02(b)(1) of the
Indenture over the amounts released from the Collateral Account under
Section 2.16 of the Indenture.
(d) All amounts payable by the Lessee pursuant to this Section 17.02
shall be paid to the Indenture Trustee at its principal office at 79 South
Main Street, Salt Lake City, Utah, 84111, Attention: Corporate Trust
Department, or as the Indenture Trustee may otherwise direct within the United
States, by wire transfer of immediately available funds in U.S. Dollars no
later than 10:30 a.m., New York City time, on the due date of such payment.
Section 17.03. Counterparts. This Agreement may be executed by the
parties in separate counterparts, each of which when so executed and delivered
shall be an original, but all such counterparts shall together constitute but
one and the same instrument.
Section 17.04. No Oral Modifications. Neither this Agreement nor
any of its terms may be terminated, amended, supplemented, waived or modified
orally, but only by an instrument in writing signed by the party against which
the enforcement of the termination, amendment, supplement, waiver or
modification is sought. No such written termination, amendment, supplement,
waiver or modification shall be effective unless a signed copy shall have been
delivered to and executed by the Owner Trustee and the Indenture Trustee. A
copy of each such termination, amendment, supplement, waiver or modification
shall also be delivered to each other party to this Agreement.
The consent of each of the Pass Through Trustee and the Subordination
Agent, in its capacity as a party to this Agreement and not as a Holder, shall
not be required to modify, amend or supplement this Agreement or to give any
consent, waiver, authorization or approval with respect to this Agreement
under the circumstances in which the consent of the Indenture Trustee would
not be required for such modification, amendment, supplement, consent, waiver
or approval in accordance with Section 8.01(b) of the Indenture, provided that
the Pass Through Trustee shall be entitled to receive an Opinion of Counsel
(as defined in the Pass Through Agreement) necessary, in its sole discretion,
to establish that the Indenture Trustee's consent would not be required under
such circumstances.
Section 17.05. Captions. The table of contents preceding this
Agreement and the headings of the various Articles and Sections of this
Agreement are for convenience of reference only and shall not modify, define,
expand or limit any of the terms or provisions of this Agreement.
Section 17.06. Successors and Assigns. The terms of this Agreement
shall be binding upon, and shall inure to the benefit of, the Lessee and its
successors and permitted assigns, the Subordination Agent and its successors
and permitted assigns, including without limitation each Holder of a
Certificate, the Owner Participant and its successors and permitted assigns,
the Owner Trustee and its successors as Owner Trustee (and any additional
owner trustee appointed) under the Trust Agreement, the Indenture Trustee and
its successors as Indenture Trustee (and any additional indenture trustee
appointed) under the Indenture and the Pass Through Trustee and its successors
as Pass Through Trustee (and any additional pass through trustee appointed).
Section 17.07. Concerning the Owner Trustee, Indenture Trustee and
the Pass Through Trustee. Each of SSB and FSB is entering into this Agreement
solely in their respective capacities (except to the extent otherwise
expressly indicated), in the case of SSB, not in its individual capacity but
solely as Owner Trustee under the Trust Agreement, in the case of FSB, not in
its individual capacity but solely as Indenture Trustee under the Indenture
and as Pass Through Trustee under the Pass Through Agreement, and except as
otherwise expressly provided in this Agreement or in the Lease, the Indenture,
the Pass Through Agreement or the Trust Agreement, neither SSB, nor FSB,
shall be personally liable for or on account of its statements,
representations, warranties, covenants or obligations under this Agreement;
provided, however, that each of SSB and FSB accepts the benefits running to it
under this Agreement, and each agrees that (except as otherwise expressly
provided in this Agreement or any other Operative Agreement to which it is a
party) it shall be liable in its individual capacity for (a) its own gross
negligence or willful misconduct (whether in its capacity as trustee or in its
individual capacity), (b) any breach of representations and warranties or any
breach of covenants made in its individual capacity pursuant to or in
connection with this Agreement or the other Operative Agreements to which
it is a party, (c) any breach, in the case of the Owner Trustee, of its
covenants contained in Sections 3.05 and 3.08 of the Indenture, (d) the
failure to use ordinary care in receiving, handling and disbursing funds,
(e) in the case of the Owner Trustee, Lessor's Liens attributable to it in
its individual capacity, (f) in the case of the Indenture Trustee,
Indenture Trustee's Liens and (g) taxes, fees or other charges on, or based
on, or measured by, any fees, commissions or compensation received by it in
connection with the transactions contemplated by the Operative Agreements.
Section 17.08. Severability. Any provision of this Agreement which
is prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions, and any such
prohibition or unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction.
Section 17.09. Public Release of Information. Subject to applicable
legal requirements (including, without limitation, securities laws
requirements, other regulatory requirements and other legally compelled
disclosures), so long as there shall not have occurred an Event of Default or
Indenture Event of Default, each party to this Agreement shall in each
instance obtain the prior written approval of each other party to this
Agreement concerning the exact text and timing of news releases, articles and
other information releases to the public media concerning any Operative
Agreements.
Section 17.10. Certain Limitations on Reorganization. The Indenture
Trustee and the Pass Through Trustee agree that, if (i) the Owner Trustee
becomes or all or any part of the Lessor's Estate or the trust created by the
Trust Agreement becomes the property of, a debtor subject to the
reorganization provisions of the Bankruptcy Code or any other applicable
bankruptcy or insolvency statutes, (ii) pursuant to any such reorganization
provisions, the Owner Participant is held to have recourse liability to the
debtor, the Owner Trustee or the trustee of the debtor directly or indirectly
on account of any amount payable as Make-Whole Premium, principal or interest
on the Certificates, or any other amount payable on any Certificate that is
provided in the Operative Agreements to be nonrecourse to the Owner
Participant and (iii) the Indenture Trustee actually receives any Recourse
Amount which reflects any payment by the Owner Participant on account of (ii)
above, then the Indenture Trustee, as the case may be, shall promptly refund
to the Owner Participant such Recourse Amount. For purposes of this Section
17.10, "Recourse Amount" means the amount by which the portion of such payment
by the Owner Participant on account of clause (ii) above received by the
Indenture Trustee exceeds the amount which would have been received by the
Indenture Trustee if the Owner Participant had not become subject to the
recourse liability referred to in (ii) above. Nothing contained in this
Section shall prevent the Indenture Trustee from enforcing any individual
obligation (and retaining the proceeds thereof) of the Owner Participant under
this Agreement or any other Operative Agreement to the extent herein or
therein provided, for which the Owner Participant has expressly agreed by the
terms of this Agreement to accept individual responsibility.
Section 17.11. GOVERNING LAW. THIS AGREEMENT SHALL IN ALL RESPECTS
BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK, INCLUDING ALL MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE, WITHOUT
GIVING EFFECT TO PRINCIPLES OF CONFLICTS OF LAWS AND IS BEING DELIVERED IN NEW
YORK.
Section 17.12. Section 1110 Compliance. The parties hereto agree
that the transactions contemplated by the Operative Agreements are expressly
intended to be, shall be and should be construed so as to be entitled to the
benefits and protection of Section 1110 of the Bankruptcy Code.
Section 17.13. Reliance of Liquidity Providers. Each of the parties
hereto agrees and acknowledges that each Liquidity Provider shall be a third
party beneficiary of each of the representations and warranties made herein by
such party, and that each Liquidity Provider may rely on such representations
and warranties to the same extent as if such representations and warranties
were made to such Liquidity Provider directly. The terms of this Agreement
shall inure to the benefit of each Liquidity Provider, their respective
successors and permitted assigns.
ARTICLE 18
CONFIDENTIALITY
Section 18.01. Confidentiality. Each party hereto agrees (on behalf
of itself and each of its Affiliates, agents, directors, officers, employees
and representatives) to use reasonable precautions to keep confidential, in
accordance with its customary procedures for handling confidential information
of this nature, any non-public information supplied to it pursuant to this
Agreement which is identified by the Person supplying the same as being
confidential at the time the same is delivered to such party, provided that
nothing herein shall limit the disclosure of any such information (i) to the
extent required by statute, rule, regulation or judicial process, (ii) to
counsel for any of the parties hereto, (iii) to bank examiners or similar
regulatory authorities, auditors or accountants, (iv) in connection with any
litigation to which any one or more of the parties hereto is a party relating
to the transactions contemplated hereby or by any of the Operative Agreements,
(v) to an Affiliate of the parties hereto, (vi) to any assignee or participant
(or prospective assignee or participant) or other transferee so long as such
assignee or participant (or prospective assignee or participant) or other
transferee first executes and delivers to the respective party making such
assignment or participation an agreement in writing to be bound by the
provisions of this Section 18.01 or (vii) in the case of the Owner Participant
or the Owner Trustee (in its individual or trust capacity) to the Owner
Trustee (in its individual or trust capacity) or to the Owner Participant, as
the case may be.
IN WITNESS WHEREOF, the parties have caused this Participation
Agreement to be executed by their respective, duly authorized officers and
this Participation Agreement shall be effective this 22nd day of May, 1997.
LESSEE:
FEDERAL EXPRESS CORPORATION
By:__________________________________________
Name: Robert D. Henning
Title: Assistant Treasurer and Managing
Director - Structured Finance
OWNER PARTICIPANT:
PMCC LEASING CORPORATION
By:__________________________________________
Name: Joan D. Woodroof
Title: Manager, Structured Finance
OWNER TRUSTEE:
STATE STREET BANK AND TRUST COMPANY OF
CONNECTICUT, NATIONAL ASSOCIATION,
not in its individual capacity,
except as otherwise expressly provided herein,
but solely as Owner Trustee
By:__________________________________________
Name: Paul D. Allen
Title: Vice President
INDENTURE TRUSTEE:
FIRST SECURITY BANK,
NATIONAL ASSOCIATION,
not in its individual capacity except as
otherwise expressly provided herein,
but solely as Indenture Trustee
By:__________________________________________
Name: Greg A. Hawley
Title: Vice President
PASS THROUGH TRUSTEE:
FIRST SECURITY BANK,
NATIONAL ASSOCIATION,
not in its individual capacity except as
otherwise expressly provided herein,
but solely as Pass Through Trustee
By:__________________________________________
Name: Greg A. Hawley
Title: Vice President
SUBORDINATION AGENT:
FIRST SECURITY BANK,
NATIONAL ASSOCIATION,
not in its individual capacity except as
otherwise expressly provided herein,
but solely as Subordination Agent
By:__________________________________________
Name: Greg A. Hawley
Title: Vice President
SCHEDULE I
CERTIFICATE INFORMATION
1. Federal Express Corporation 1997-1 Pass Through Trust Class A
Federal Express Corporation Trust No. N670FE
Interest Rate: 7.50%
Maturity: January 15, 2017
Principal Amount: $33,352,000
2. Federal Express Corporation 1997-1 Pass Through Trust Class B
Federal Express Corporation Trust No. N670FE
Interest Rate: 7.52%
Maturity: January 15, 2018
Principal Amount: $12,507,000
3. Federal Express Corporation 1997-1 Pass Through Trust Class C
Federal Express Corporation Trust No. N670FE
Interest Rate: 7.65%
Maturity: January 15, 2014
Principal Amount: $16,533,000
SCHEDULE II
DEFINITIONS
(FEDERAL EXPRESS CORPORATION TRUST NO. N670FE)
GENERAL PROVISIONS
The following terms shall have the following meanings for all
purposes of the Operative Agreements (other than the Pass Through Agreement,
the Series Supplements, the Intercreditor Agreement and the Liquidity
Facilities) referred to below, unless otherwise defined in an Operative
Agreement or the context thereof shall otherwise require. In the case of any
conflict between the provisions of this Schedule and the provisions of any
Operative Agreement, the provisions of such Operative Agreement shall control
the construction of such Operative Agreement.
Unless the context otherwise requires, (i) references to agreements
shall be deemed to mean and include such agreements as amended and
supplemented from time to time, and (ii) references to parties to agreements
shall be deemed to include the successors and permitted assigns of such
parties.
DEFINED TERMS:
Additional Insured. As defined in Article 13 of the Lease.
Aeronautics Authority. As appropriate, the Federal Aviation
Administration and/or the Administrator of the Federal Aviation
Administration, any successor to the former United States Civil Aeronautics
Board, or any Person, governmental department, bureau, commission or agency
located in the United States succeeding to the functions of any of the
foregoing.
Affidavits. The affidavits of citizenship of the Owner Trustee and
the Owner Participant.
Affiliate. With respect to any Person, any other Person directly or
indirectly controlling, controlled by or under common control with such
Person. For the purposes of this definition, "control" (including "controlled
by" and "under common control with") shall mean the power, directly or
indirectly, to direct or cause the direction of the management and policies of
such Person whether through the ownership of voting securities or by contract
or otherwise. In no event shall the Owner Trustee or the Lessor be deemed an
Affiliate of the Owner Participant.
After-Tax Basis. A basis such that any payment to be received by a
Person shall be supplemented by a further payment to such Person so that the
sum of the two payments, after deduction of all Taxes resulting from the
receipt or accrual of such payments, shall be equal to the payment to be
received. In the case of amounts payable to the Lessor, the Owner Participant,
or any corporate Affiliate of the Owner Participant, it shall be presumed that
such Person is at all times subject to Federal income tax at the maximum
marginal rate generally applicable to corporations from time to time and
actual state, local and foreign income taxes.
Air Carrier. Any U.S. Air Carrier and any "foreign air carrier" (as
defined in the Transportation Code) as to which there is in force a permit
granted under Section 41302 of the Transportation Code.
Airbus Guaranty. The Guaranty to be dated the Delivery Date executed
by the Manufacturer and guaranteeing AVSA's Warranty Bill of Sale.
Aircraft. The Airframe to be sold by AVSA to the Owner Trustee as
provided in the Participation Agreement and to be leased under the Lease (or
any permitted substitute airframe thereunder) together with two Engines
(whether either is an initial Engine or a Replacement Engine) whether or not
any of such initial or Replacement Engines may from time to time be installed
on such Airframe or may be installed on any other airframe or on any other
aircraft, including any aircraft substituted pursuant to Section 11.03 of the
Lease. Prior to delivery of the initial Lease Supplement, references in the
Operative Agreements (including Section 3.05 of the Participation Agreement)
to Aircraft shall mean the Airbus A300F4-605R airframe bearing FAA
Registration Number N670FE and Manufacturer's serial number 777, together with
two General Electric CF6-80C2-A5F engines.
Airframe. The Airbus A300F4-605R aircraft (excluding the Engines or
engines from time to time installed thereon) to be leased by the Lessor to the
Lessee pursuant to the Lease and the initial Lease Supplement and having the
United States FAA Registration Number initially and manufacturer's serial
number specified in the initial Lease Supplement, including (i) all Parts in
respect thereof and (ii) any Replacement Airframe which may be substituted
pursuant to Section 11.03 of the Lease.
Ancillary Agreement. Any written agreement of the Lessee to which the
Lessor is a party or to which the Lessor has consented in writing entered into
on or prior to the Delivery Date or any date thereafter in connection with the
transactions contemplated by the Operative Agreements, as such agreement may
be amended and supplemented from time to time with the consent of the Lessor
and delivered to the Owner Trustee, the Indenture Trustee, the Pass Through
Trustee, the Subordination Agent, each Liquidity Provider and the Owner
Participant.
Ancillary Agreement I. The Ancillary Agreement I (Federal Express
Corporation Trust No. N670FE), dated the Certificate Closing Date, among the
Lessee, the Owner Trustee, not in its individual capacity, but solely as Owner
Trustee, the Owner Participant and the Indenture Trustee not in its individual
capacity, but solely as Indenture Trustee, as originally executed or as
amended, modified or supplemented with the consent of all the parties thereto.
Ancillary Agreement II. The Ancillary Agreement II (Federal Express
Corporation Trust No. N670FE), dated the Certificate Closing Date, among the
Lessee, the Owner Trustee, not in its individual capacity, but solely as Owner
Trustee, the Owner Participant and the Indenture Trustee not in its individual
capacity, but solely as Indenture Trustee, as originally executed or as
amended, modified or supplemented with the consent of all the parties thereto.
Application. The application for registration of the Aircraft with
the FAA in the name of the Owner Trustee.
Appraisal. The report prepared by BK Associates, Inc. and to be
delivered to the Owner Participant (with an abbreviated report to the Lessee)
on the Delivery Date pursuant to Section 4.02(h) of the Participation
Agreement.
Assignment and Assumption Agreement. Any agreement delivered in
compliance with Section 7.03(d) of the Participation Agreement.
Average Life Date. For any Certificate, the date which follows the
prepayment date by a period equal to the Remaining Weighted Average Life of
such Certificate.
AVSA. AVSA S.A.R.L., a societe a responsabilite limitee, organized
and existing under the laws of France.
AVSA Consent and Agreement. The Consent and Agreement dated as of
May 1, 1997, executed by AVSA.
AVSA's FAA Bill of Sale. The bill of sale for the Airframe on AC
Form 8050-2, or such other form as may be approved by the Aeronautics
Authority, executed by AVSA in favor of the Owner Trustee and to be dated the
Delivery Date.
AVSA's Warranty Bill of Sale. The full warranty bill of sale
covering the Aircraft (and specifically referring to each Engine) executed by
AVSA as owner of the Aircraft in favor of the Owner Trustee and to be dated
the Delivery Date.
Bankruptcy Code. The Federal Bankruptcy Code of 1978, as amended, and
any successor thereto.
Bankruptcy Default. An event specified in Section 16.01(e), (f) or
(g) of the Lease which either does or, with the giving of notice or lapse of
time or both, would constitute an Event of Default.
Basic Rent. The aggregate periodic rent payable for the Aircraft
throughout the Basic Term pursuant to Section 3.02 of the Lease, adjusted
pursuant to Article 3 of the Lease.
Basic Term. The period commencing at the beginning of the day on the
Delivery Date and ending at the end of the day on September 2, 2020, or such
earlier date on which the Lease shall be terminated as provided therein.
Beneficial Interest. The interest of the Owner Participant under the
Trust Agreement.
Business Day. Any day on which commercial banks are not authorized or
required to close in New York, New York, Memphis, Tennessee and the city in the
United States in which the office or agency is maintained by the Pass Through
Trustee for the payment of the Pass Through Certificates, and after the Lien
of the Indenture is discharged, Boston, Massachusetts.
Certificate Closing Date. The date of the closing with respect to the
purchase of Certificates by the Pass Through Trustee contemplated by Section
2.01(b) of the Participation Agreement.
Certificates. The Equipment Trust Certificates (Federal Express
Corporation Trust No. N670FE), issued by the Owner Trustee pursuant to the
Indenture and any certificate issued in exchange therefor or replacement
thereof pursuant to the Indenture.
Change in Tax Law. Any change to the Code or the Treasury regulations
promulgated thereunder or the publication of any revenue ruling, revenue
procedure or any informational release by the Internal Revenue Service or the
Department of Treasury either of which would change or would allow a change in
the tax assumptions or structure upon which the lease economics were based,
provided that the Owner Participant or the Lessee has notified the other party
of such change in writing prior to the Delivery Date.
Change in Tax Rate. Any amendment, modification, deletion, addition,
or change to the Code which is enacted into law after the Delivery Date which
changes the highest marginal statutory rate of Federal income tax applicable
to the Owner Participant (other than a change which is in the nature of a
minimum tax).
Citizen of the United States. A citizen of the United States as
defined in Section 40102(a)(15) of the Transportation Code, or any analogous
part of any successor or substituted legislation or regulation at the time in
effect.
Class A Liquidity Provider. Has the meaning specified in Section
1.01 of the Intercreditor Agreement.
Class B Liquidity Provider. Has the meaning specified in Section
1.01 of the Intercreditor Agreement.
Closings. The closing with respect to the acquisition of the Pass
Through Certificates by the Underwriters and the closing with respect to the
acquisition of Certificates by the Pass Through Trustee.
Code. Except as otherwise provided, the Internal Revenue Code of
1986, as amended from time to time.
Collateral Account. The deposit account established and maintained
pursuant to Section 2.13 of the Indenture.
Collateral Account Control Agreement. The Collateral Account Control
Agreement dated as of May 1, 1997 among State Street Bank and Trust Company,
the Indenture Trustee and the Owner Trustee.
Commitment. The amount of the Owner Participant's participation in
the Purchase Price required to be made available or paid as provided in
Section 3.02 of the Participation Agreement.
Consent and Agreement. The Consent and Agreement dated as of May 1,
1997 executed by the Manufacturer.
Consent and Guaranty. The Consent and Guaranty of the Manufacturer
attached to the Purchase Agreement.
Corporate Trust Administration. The Corporate Trust Administration
office of the Owner Trustee located at 750 Main Street, Hartford, Connecticut
06103, Attention: Corporation Trust Administration, or such other office at
which the Owner Trustee's corporate trust business shall be administered which
the Owner Trustee shall have specified by notice in writing to the Lessee, the
Owner Participant and the Indenture Trustee.
Corporate Trust Department. The Corporate Trust Department office of
the Indenture Trustee located at 79 South Main Street, Salt Lake City, Utah
84111, Attention: Corporate Trust Department, or such other office at which
the Indenture Trustee's corporate trust business shall be administered which
the Indenture Trustee shall have specified by notice in writing to the Lessee,
the Owner Participant and the Owner Trustee.
CRAF Program. Has the meaning specified in Section 7.01(f) of the
Lease.
Cut-Off Date. September 1, 1997.
Debt Portion. The amount specified as such on Schedule IV to the
Participation Agreement.
Debt Rate. The weighted average (based on Outstanding principal
amount) rate of interest on the Certificates issued pursuant to the Indenture.
Default. Any event or condition which, with the lapse of time or the
giving of notice, or both, would constitute an Event of Default.
Delivery Date. The date on which the Aircraft is delivered and sold
by AVSA to the Lessor and leased by the Lessor to the Lessee under the Lease,
which date shall also be the date of the initial Lease Supplement.
Delivery Notice. Notice of the Aircraft's Delivery Date, given by
the Lessee as provided in Section 3.01 of the Participation Agreement and
including any notice with respect to a postponed Delivery Date given by the
Lessee pursuant to Section 3.05(c) of the Participation Agreement.
Eligible Deposit Account. Either (a) a segregated account with an
Eligible Institution or (b) a segregated trust account with the corporate
trust department of a depository institution with corporate trust powers
organized under the laws of the United States or any state thereof, or the
District of Columbia, and whose deposits are insured by the Federal Deposit
Insurance Corporation, provided that such institution also has a combined
capital and surplus of at least $100,000,000 and a rating of A or better from
the Thomson Bank Watch.
Eligible Institution. A depository institution organized under the
laws of the United States or any one of the states thereof, or the District of
Columbia, or any domestic branch of a foreign bank, which in any such case at
all times (a) has either (x) a long-term unsecured debt rating of at least Aa2
by Moody's or (y) a short-term certificate of deposit rating of P-1 by
Moody's, (b) has either (x) a long-term unsecured debt rating of a least AA by
S&P or (y) a short-term certificate of deposit rating of A-1+ by S&P and (c)
is a member of the Federal Deposit Insurance Corporation.
Engine. Each of the two General Electric CF6-80C2-A5F engines listed
by its manufacturer's serial number in the initial Lease Supplement and leased
pursuant to the Lease, whether or not from time to time installed on the
Airframe or installed on any other airframe or on any other aircraft, and any
Replacement Engine which may from time to time be substituted for an Engine
pursuant to Section 7.02(a)(vii), 10.02(c), 10.03, 11.03, 11.04 or 12.02 of
the Lease, together with all Parts related thereto. Except as otherwise
provided, at such time as a Replacement Engine shall be so substituted and the
Engine for which the substitution is made shall be released from the Lien of
the Indenture, such replaced Engine shall cease to be an "Engine" under the
Lease. The term "Engines" means, as of any date of determination, both Engines
then leased to the Lessee pursuant to the Lease.
Engine Consent. The Engine Consent dated as of May 1, 1997, executed
by the Engine Manufacturer.
Engine Manufacturer. General Electric Company, a New York
corporation.
Engine Warranty Assignment. The Engine Warranty Assignment (Federal
Express Corporation Trust No. N670FE), dated as of May 1, 1997 between the
Lessor and the Lessee.
ERISA. The Employee Retirement Income Security Act of 1974, as
amended.
ERISA Plan. As defined in Section 8.01(b)(xii) of the Participation
Agreement.
Estimated Expense Amount. Has the meaning specified in Section
10.01(a) of the Participation Agreement.
Event of Default. Each of the events specified in Article 16 of the
Lease.
Event of Loss. Any of the following events with respect to the
Aircraft, the Airframe or any Engine: (i) loss of such property or its use (A)
for a period in excess of 60 days due to theft or disappearance or such longer
period, not to exceed 180 days from the end of such initial 60-day period, if
and so long as the location of such property is known to the Lessee and the
Lessee is diligently pursuing recovery of such property, or to the end of the
Term, if less (unless such theft or disappearance constitutes an Event of Loss
pursuant to (i)(B) or (ii) hereof) or (B) for a period in excess of 60 days
due to the destruction, damage beyond economic repair or rendition of such
property permanently unfit for normal use by Lessee for any reason whatsoever;
(ii) any damage to such property which results in an insurance settlement with
respect to such property on the basis of a total loss, or constructive or
compromised total loss; (iii) (1) condemnation, confiscation or seizure of, or
requisition of title to such property by the Government, any foreign
government or purported government or any agency or instrumentality thereof,
or (2) condemnation, confiscation, or seizure of, or requisition or taking of,
use of such property (A) by a foreign government or instrumentality or agency
of any such foreign government, for a period in excess of 180 days (or such
shorter period ending on the earlier of the expiration of the Term or on the
date on which an insurance settlement with respect to such property on the
basis of a total loss or constructive or compromised total loss shall occur)
or (B) by the Government for a period extending beyond the Term; and (iv) as a
result of any law, rule, regulation, order or other action by the Aeronautics
Authority or other governmental body having jurisdiction, the use of the
Aircraft or Airframe in the normal course of air transportation of cargo shall
have been prohibited by virtue of a condition affecting all Airbus A300-600
series aircraft equipped with engines of the same make and model as the
Engines for a period of twelve (12) consecutive months, unless the Lessee,
prior to the expiration of such twelve (12) month period, shall be diligently
carrying forward all steps which are necessary or desirable to permit the
normal use of the Aircraft or Airframe or, in any event, if such use of the
Aircraft or the Airframe shall have been prohibited for a period of
twenty-four (24) consecutive months or until the end of the Term, if earlier.
The date of such Event of Loss shall be (s) the 61st day or the 241st day, as
the case may be, following loss of such property or its use due to theft or
disappearance (or the end of the Term or the Lessee's abandonment of diligent
efforts to recover such property, if earlier); (t) the 61st day following the
date of any destruction, damage beyond economic repair or rendition of such
property permanently unfit for normal use; (u) the date of any insurance
settlement on the basis of a total loss or constructive or compromised total
loss; (v) the date of any condemnation, confiscation, seizure or requisition
of title of such property; (w) the 181st day following condemnation,
confiscation, seizure or requisition for use of such property by a foreign
government referred to in clause (iii)(2)(A) above (or the end of the Term or
the date of any insurance settlement described therein, if earlier than such
181st day); (x) the last day of the Term in the case of requisition for use of
such property by the Government; (y) the last day of the 12 month or 24 month
period, referred to in clause (iv) above (or if earlier, the end of the Term
or abandonment of the Lessee's efforts to restore the normal use of the
Aircraft). An Event of Loss with respect to the Aircraft shall be deemed to
have occurred if any Event of Loss occurs with respect to the Airframe.
Excepted Payments. Collectively, (i) indemnity, expense,
reimbursement or other payments paid or payable by the Lessee in respect of
the Owner Participant, the Owner Trustee in its individual capacity or any of
their respective successors, permitted assigns, directors, officers,
employees, servants and agents or Affiliates, pursuant to the Participation
Agreement or any other Operative Agreement or any indemnity hereafter granted
to the Owner Participant or the Owner Trustee in its individual capacity
pursuant to the Lease or the Participation Agreement, (ii) proceeds of public
liability insurance (or government indemnities in lieu thereof) in respect of
the Aircraft payable as a result of insurance claims paid for the benefit of,
or losses suffered by, the Owner Trustee or the Indenture Trustee in their
respective individual capacities or by the Owner Participant, or their
respective successors, permitted assigns or Affiliates, (iii) proceeds of
insurance maintained with respect to the Aircraft by the Owner Participant
(whether directly or through the Owner Trustee) maintained in accordance with
Section 13.05 of the Lease but not required under Article 13 of the Lease,
(iv) payments of Supplemental Rent by the Lessee in respect of any amounts
payable under the Tax Indemnity Agreement, (v) any purchase price paid to the
Owner Participant for its interest in the Trust Estate pursuant to Section
7.03(d) of the Participation Agreement, (vi) subject to Section 3.05 of the
Lease, payments constituting increases in Basic Rent attributable to payments
arising pursuant to Section 5 of the Tax Indemnity Agreement, (vii) any
payments in respect of interest to the extent attributable to payments
referred to in clauses (i) through (vi) above and (viii) any right to demand,
collect or otherwise receive and enforce the payment of any amount described
in clauses (i) through (v) and (vii) above (except with respect to interest
attributable to payments referred to in clause (vi) above).
Expense; Expenses. Have the meaning specified in Section 9.01(a) of
the Participation Agreement.
Fair Market Renewal Term. A term with respect to which the Lessee has
exercised its option to renew the Lease pursuant to the second paragraph of
Section 4.01(a) thereof and with respect to which the conditions set forth in
such Section 4.01(a) are met.
Fair Market Rental. An amount determined on the basis of, and equal
in amount to, the rental which would be obtained in an arm's-length
transaction between an informed and willing lessee and an informed and willing
lessor unaffiliated with such lessee, neither being under any compulsion to
lease. In such determination, it shall be assumed that the Aircraft is in the
condition required under the Lease in the case of return of the Aircraft
pursuant to Article 12 of the Lease and Fair Market Rental shall be determined
in accordance with the provisions of Section 4.03 of the Lease.
Fair Market Value. An amount determined on the basis of, and equal in
amount to, the value which would be obtained in an arm's-length transaction
between an informed and willing purchaser under no compulsion to buy and an
informed and willing seller unaffiliated with such purchaser and under no
compulsion to sell, assuming the Aircraft (or other property) is unencumbered
by the Lease. In such determination, except for purposes of Section 17.01 of
the Lease (when it shall be determined based upon the actual condition and
location of the Aircraft), it shall be assumed that the Aircraft is in the
condition required under the Lease in the case of return of the Aircraft
pursuant to Article 12 of the Lease and Fair Market Value shall be determined
in accordance with the provisions of Section 4.03 of the Lease.
Federal Aviation Administration; FAA. The United States Federal
Aviation Administration and any successor agency or agencies thereto.
Final Drawing. Has the meaning specified in Section 1.01 of the
Intercreditor Agreement.
Fixed Renewal Rent. Semi-annual payments of rent during the Fixed
Renewal Term equal to the lesser of (i) Fair Market Rental as determined as of
the commencement of such Fixed Renewal Term and (ii) 50% of the average actual
semi-annual Basic Rent payable during the Basic Term.
Fixed Renewal Term. The term with respect to which the Lessee has
exercised its option to renew the Lease pursuant to the first paragraph of
Section 4.01(a) thereof and with respect to which the conditions set forth in
such Section 4.01(a) are met.
FPO Price. Has the meaning set forth in Section 4.02(a)(F) of the
Lease.
French Pledge Agreement. The French Pledge Agreement dated as of May
1, 1997 between the Owner Trustee and the Indenture Trustee.
FSB. First Security Bank, National Association, a national banking
association.
Government. The United States of America or an agency or
instrumentality thereof the obligations of which bear the full faith and
credit of the United States of America.
GTA. The General Terms Agreement dated as of July 3, 1991 between the
Engine Manufacturer and the Lessee related to the purchase by the Lessee of the
Engines as originally executed or as modified, amended or supplemented in
accordance with the terms thereof, but only insofar as the General Terms
Agreement relates to the Engines, to the extent assigned to the Owner Trustee
pursuant to the Engine Warranty Assignment.
Holder of a Certificate; Certificate Holder; Holder. As of any
particular time, the Person in whose name a Certificate shall be registered
(but not including the holder of any Pass Through Certificate).
Indemnitee. Each of SSB, in its individual capacity and as Owner
Trustee and Lessor, the Subordination Agent, in its individual capacity and in
its capacity as Subordination Agent, each Liquidity Provider, the Owner
Participant, the Indenture Trustee, in its individual capacity and as trustee,
the Owner Participant Guarantor and any successor (including any trustee which
may succeed to the Lessor's interest under the Lease), Affiliate, assign,
officer, director, employee, agent and servant of any of the foregoing, the
Lessor's Estate and the Trust Indenture Estate. Neither the Pass Through
Trustee nor any holder of a Pass Through Certificate shall be deemed to be an
Indemnitee.
Indenture. The Trust Indenture and Security Agreement (Federal
Express Corporation Trust No. N670FE), dated as of May 1, 1997, between the
Lessor and the Indenture Trustee, as supplemented by the Indenture and
Security Agreement Supplement.
Indenture and Security Agreement Supplement. The Indenture and
Security Agreement Supplement No. 1 (Federal Express Corporation Trust No.
N670FE) to be dated the Delivery Date, substantially in the form of Exhibit A
to the Indenture.
Indenture Default. Any event or condition which, with the lapse of
time or the giving of notice, or both, would constitute an Indenture Event of
Default.
Indenture Documents. Has the meaning specified in the Granting
Clause of the Indenture.
Indenture Event of Default. Each of the events specified in Section
7.01 of the Indenture.
Indenture Trustee. First Security Bank, National Association, a
national banking association, not in its individual capacity but solely as
Indenture Trustee under the Indenture.
Indenture Trustee's Liens. Any Lien against, on or with respect to
the Aircraft, the Lessor's Estate or the Trust Indenture Estate or any part
thereof resulting from (i) claims against the Indenture Trustee not related to
the administration of the Trust Indenture Estate or any transactions pursuant
to the Indenture or any document included in the Trust Indenture Estate, (ii)
any act or omission of the Indenture Trustee which is not related to the
transactions contemplated by the Operative Agreements or is in violation of
any of the terms of the Operative Agreements or (iii) Taxes imposed against
the Indenture Trustee in its individual capacity in respect of which the Lessee
has not indemnified (and is not obligated to indemnify) the Indenture Trustee
in such capacity.
Independent Appraisal. An appraisal conducted pursuant to Section
4.03 of the Lease.
Independent Investment Banker. An independent investment banking
institution of national standing appointed by the Lessee that is independent
in fact, does not have any direct financial interests, or any material
indirect financial interest, in the Lessee or any Affiliate of the Lessee, and
is not connected with the Lessee or any Affiliate of the Lessee, as an
officer, employee, promoter, underwriter, trustee, partner, director or Person
performing similar functions; provided, that if the Indenture Trustee shall
not have received written notice of such an appointment at least 10 days prior
to the Prepayment Date, "Independent Investment Banker" shall mean such an
institution appointed by the Indenture Trustee.
Intercreditor Agreement. The Intercreditor Agreement dated as of May
1, 1997, among the Pass Through Trustee, the Class A Liquidity Provider, the
Class B Liquidity Provider and the Subordination Agent.
Interest Drawing. Has the meaning specified in Section 1.01 of the
Intercreditor Agreement.
Invoice. The invoice for the Aircraft given by AVSA to the Lessor.
Lease. The Lease Agreement (Federal Express Corporation Trust No.
N670FE) dated as of May 1, 1997, entered into by the Lessor and the Lessee
concurrently with the execution and delivery of the Indenture, including,
without limitation, supplementation by one or more Lease Supplements entered
into pursuant to the applicable provisions of the Lease.
Lease Supplement. The Lease Supplement No. 1 (Federal Express
Corporation Trust No. N670FE) to be dated the Delivery Date, substantially in
the form of Exhibit A to the Lease.
Lease Term. The period commencing on the Delivery Date and ending at
the end of the Basic Term.
Lessee. Federal Express Corporation, a Delaware corporation.
Lessee Documents. Has the meaning set forth in Section 6.01(b) of the
Participation Agreement.
Lessor. State Street Bank and Trust Company of Connecticut, National
Association, a national banking association, not in its individual capacity
but solely as Owner Trustee under the Trust Agreement.
Lessor's Estate. All estate, right, title and interest of the Owner
Trustee in and to the Collateral Account, the Liquid Collateral, the Aircraft,
the Lease, any Lease Supplement, the Participation Agreement, AVSA's FAA Bill
of Sale, AVSA's Warranty Bill of Sale, the Airbus Guaranty, the Purchase
Agreement, the Purchase Agreement Assignment, the Consent and Agreement, the
AVSA Consent and Agreement, the Consent and Guaranty (to the extent assigned
by the Purchase Agreement Assignment), any Ancillary Agreement, the GTA, the
Engine Warranty Assignment, the Engine Consent, any warranty with respect to
the Airframe and the Engines, all amounts of Basic Rent and Supplemental Rent,
including without limitation, insurance proceeds (other than insurance
proceeds payable to or for the benefit of the Owner Trustee in its individual
capacity or the Owner Participant) and requisition, indemnity or other
payments of any kind for or with respect to the Aircraft (except amounts owing
to the Owner Participant, to the Indenture Trustee, to the Owner Trustee in its
individual capacity, or to any of their respective directors, officers,
employees and agents pursuant to Articles 8 and 9 of the Participation
Agreement), and all other property of the Owner Trustee purportedly subjected
to the Lien of the Indenture by the Granting Clause thereof; provided that in
no event shall "Lessor's Estate" include any Excepted Payment.
Lessor's Liens. Liens against, on or with respect to the Aircraft,
the Lessor's Estate or the Trust Indenture Estate or any part thereof, title
thereto or any interest therein arising as a result of (i) claims against the
Lessor, in its individual capacity or as Owner Trustee, or the Owner
Participant, in each case not related to the transactions contemplated by the
Operative Agreements, (ii) acts or omissions of the Lessor in its individual
capacity or as Owner Trustee, and, in the case of the Lessor in its individual
capacity, arising from its gross negligence or willful misconduct or expressly
prohibited under the Operative Agreements and any act or omission of the Owner
Participant which is in violation of any of the terms of the Operative
Agreements, (iii) Taxes or Expenses imposed against the Lessor, in its
individual capacity or as Owner Trustee, Owner Participant, Lessor's Estate or
the trust created by the Trust Agreement which are not required to be
indemnified against by the Lessee pursuant to the Participation Agreement by
reason of Section 8.01(b) or 9.01(b) thereof and which are not required to be
indemnified against by the Lessee pursuant to the Tax Indemnity Agreement, or
(iv) claims against the Lessor or the Owner Participant arising from the
voluntary transfer by the Lessor or the Owner Participant of its interests in
the Aircraft other than a transfer of the Aircraft pursuant to Section 4.02(a)
or Article 10 or 11 of the Lease and other than a transfer pursuant to the
exercise of the remedies set forth in Article 17 of the Lease.
Lien. Any mortgage, pledge, lien, charge, encumbrance, lease or
security interest or other similar interest.
Liquid Collateral. All amounts and securities deposited from time to
time in the Collateral Account and all the products, investments, earnings and
proceeds of the foregoing, including, but not limited to, all proceeds of the
investment or conversion thereof, voluntary or involuntary, into cash,
Specified Investments or other property, all rights to payment of any and
every kind, and other forms of obligations, and instruments and other property
which at any time constitute all or part or are included in the proceeds of
any of the foregoing.
Liquidity Facility. Has the meaning specified in Section 1.01 of the
Intercreditor Agreement.
Liquidity Provider. Has the meaning specified in Section 1.01 of the
Intercreditor Agreement.
Losses. Has the meaning specified in Section 17.02(a) of the
Participation Agreement.
Loss Payee. Has the meaning specified in Section 13.02(b)(i) of the
Lease.
Majority in Interest of Certificate Holders. As of a particular date
of determination, the Holders of more than 50% of the aggregate unpaid
principal amount of all Certificates outstanding as of such date excluding for
purposes of this definition any Certificates held by (i) the Owner Trustee or
the Owner Participant or any interests of the Owner Participant unless all
Certificates then outstanding shall be held by the Owner Participant, (ii) the
Lessee or (iii) any Affiliate of any thereof.
Make-Whole Premium. An amount determined as of the day before the
applicable Prepayment Date (or date of purchase, as the case may be) which an
Independent Investment Banker determines to be equal to the excess, if any, of
(i) the present value of the remaining scheduled payments of such principal
amount or portion thereof and interest thereon (excluding interest accrued
from the immediately preceding Payment Date to such Prepayment Date or date of
purchase, as the case may be) to the Maturity of such Certificate in
accordance with generally accepted financial practices assuming a 360-day year
consisting of twelve 30-day months at a discount rate equal to the Treasury
Yield, all as determined by the Independent Investment Banker over (ii) the
outstanding principal amount of such Certificate plus accrued interest.
Manufacturer. Airbus Industrie G.I.E., a groupement d'interet
economique formed under the laws of France.
Maturity. With respect to any Certificate, the date on which the
final principal amount of such Certificate is scheduled to be due and payable.
Moody's. Moody's Investors Service, Inc.
Net Present Value of Rents. The net present value, as of the
Delivery Date, of Basic Rent set forth in Schedule II of the Lease, discounted
at a rate equal to the Debt Rate per annum compounded semi-annually.
Non-U.S. Person. Any Person other than a U.S. Person.
Obsolete Parts. Parts which are severable from the Aircraft in
accordance with clauses (ii) and (iii) of the proviso to Section 9.02(b) of
the Lease and the Lessee in good faith determines to be obsolete or no longer
suitable or appropriate for use on the Airframe or any Engine.
Officer's Certificate. When delivered pursuant to the Indenture, a
certificate signed by a Responsible Officer of the Lessee or the Owner
Trustee, as the case may be, and delivered to the Indenture Trustee. Each
such certificate shall include the statements provided for in Section 15.07 of
the Indenture.
Operative Agreements. The Participation Agreement, the Trust
Agreement, AVSA's FAA Bill of Sale, AVSA's Warranty Bill of Sale, the Airbus
Guaranty, the Purchase Agreement, the Purchase Agreement Assignment, the GTA,
the Engine Warranty Assignment, the French Pledge Agreement, the Lease, the
Lease Supplement, the Owner Participant Guaranty, the Owner Trustee Guaranty,
if any, any Ancillary Agreement entered into by or with the written consent of
the Indenture Trustee, which by its terms is an Operative Agreement, the
Certificates outstanding at the time of reference, the Indenture, the
Indenture and Security Agreement Supplement, the Consent and Agreement, the
AVSA Consent and Agreement, the Consent and Guaranty (to the extent assigned
by the Purchase Agreement Assignment), the Engine Consent, the Tax Indemnity
Agreement, each Liquidity Facility, the Intercreditor Agreement, the
Collateral Account Control Agreement and any Assignment and Assumption
Agreement.
Opinion of Counsel. When delivered pursuant to the Indenture, a
written opinion of legal counsel, who in the case of counsel (a) for the
Lessee may be (i) an attorney employed by the Lessee who is generally
empowered to deliver such written opinions, (ii) Davis Polk & Wardwell or a
successor firm or (iii) other counsel designated by the Lessee and reasonably
satisfactory to the Indenture Trustee and (b) for the Owner Trustee or the
Indenture Trustee, an attorney selected by such Person and, in the case of the
Owner Trustee, reasonably satisfactory to the Indenture Trustee.
Outstanding. When used with respect to Certificates, as of the date
of determination and subject to the provisions of Section 10.04 of the
Indenture, all Certificates theretofore executed and delivered under the
Indenture, with the exception of the following:
(i) Certificates theretofore cancelled by the Indenture Trustee or
delivered to the Indenture Trustee for cancellation pursuant to
Section 2.08 of the Indenture or otherwise;
(ii) Certificates for which prepayment money in the necessary amount
has been theretofore deposited with the Indenture Trustee in trust
for the Holders of such Certificates pursuant to Section 14.01 of the
Indenture; provided, that if such Certificates are to be prepaid,
notice of such prepayment has been duly given pursuant to the
Indenture or provision therefor satisfactory to the Indenture Trustee
has been made; and
(iii) Certificates in exchange for or in lieu of which other
Certificates have been executed and delivered pursuant to Article II
of the Indenture.
Owner Participant. The trustor originally named in the Trust
Agreement and any successor thereto, and any Person to which the Owner
Participant transfers, in accordance with the Trust Agreement, its right,
title and interest in and to the Operative Agreements and the Lessor's Estate.
Owner Participant Guarantor. Philip Morris Capital Corporation, a
Delaware corporation, and any other provider of an Owner Participant Guaranty.
Owner Participant Guaranty. The Owner Participant Guaranty dated the
Certificate Closing Date by the Owner Participant Guarantor in favor of the
Lessee, the Owner Trustee, the Indenture Trustee and the Pass Through Trustee,
and any guaranty delivered in compliance with Section 7.03(d) of the
Participation Agreement.
Owner Trustee. SSB, not in its individual capacity except as
otherwise expressly stated, but solely as Owner Trustee under the Trust
Agreement.
Owner Trustee Guarantor. The provider of an Owner Trustee Guaranty.
Owner Trustee Guaranty. Any guaranty delivered in compliance with
Section 11.01(b)(ii) of the Participation Agreement.
Owner's Economic Return. The Owner Participant's anticipated net
after-tax book yield and aggregate after-tax cash during the Basic Term
utilizing the multiple investment sinking fund method of analysis, computed on
the basis of the same methodology and assumptions as were utilized by the
Owner Participant in determining Basic Rent, Stipulated Loss Value and
Termination Value percentages, as the case may be, as such assumptions may be
adjusted for events which have been the basis of adjustments to Rent pursuant
to Section 3.04 of the Lease.
Participation Agreement. The Participation Agreement (Federal Express
Corporation Trust No. N670FE), dated as of May 1, 1997, among the Lessee, the
Owner Trustee not in its individual capacity except as otherwise expressly
provided therein, but solely as owner trustee, the Owner Participant, the
Indenture Trustee not in its individual capacity except as otherwise expressly
provided therein, but solely as indenture trustee, the Pass Through Trustee
not in its individual capacity except as otherwise expressly provided therein,
but solely as pass through trustee and the Subordination Agent not in its
individual capacity except as otherwise expressly provided therein, but solely
as subordination agent.
Parts. All appliances, parts, components, instruments, appurtenances,
accessories, furnishings and other equipment of whatever nature (other than
complete Engines or engines) which may from time to time be incorporated or
installed in or attached to the Airframe or any Engine or title to which
remains vested in the Lessor pursuant to Article 8 of the Lease.
Pass Through Agreement. The Pass Through Trust Agreement dated as of
May 1, 1997 between the Lessee and the Pass Through Trustee.
Pass Through Certificates. Any of the Pass Through Certificates,
1997-1-A, the Pass Through Certificates, 1997-1-B or the Pass Through
Certificates, 1997-1-C, in each case as issued by the related Pass Through
Trust; and "Pass Through Certificates" means all of the Pass Through
Certificates issued by each of the Pass Through Trusts.
Pass Through Closing Date. The Business Day on which the sale of the
Pass Through Certificates to the Underwriters pursuant to the Underwriting
Agreement takes place.
Pass Through Trust. The Federal Express Corporation 1997-1 Pass
Through Trust Class A, Federal Express Corporation 1997-1 Pass Through Trust
Class B and Federal Express Corporation 1997-1 Pass Through Trust Class C, in
each case formed pursuant to the related Series Supplement in accordance with
the Pass Through Agreement; and "Pass Through Trusts" means all of such Pass
Through Trusts.
Pass Through Trustee. First Security Bank, National Association, a
national banking association, in its capacity as Pass Through Trustee under
the Pass Through Agreement and each Pass Through Trust.
Past Due Rate. In respect of (A) any amount payable to the Owner
Participant or the Owner Trustee a rate per annum during the period from and
including the due date to but excluding the date on which such amount is paid
in full equal to 2% plus the Debt Rate and (B) any principal of or interest on
any Certificate or any other amount payable under the Indenture, any
Certificate or any other Operative Agreement that is not paid when due
(whether at Maturity, by acceleration, by optional or mandatory prepayment or
otherwise) to any Holder, the Indenture Trustee or the Pass Through Trustee, a
rate per annum during the period from and including the due date to but
excluding the date on which such amount is paid in full equal to (i) in the
case of any such amount payable to the Holder of any Certificate, 2% plus the
interest rate applicable to such Certificate and (ii) in the case of any other
such amount, 2% plus the Debt Rate.
Payment Date. Each January 15 and July 15 commencing on July 15,
1997.
Payment Default. Any event specified in Section 16.01(a) or 16.01(b)
of the Lease which with the giving of notice or lapse of time or both would
constitute an Event of Default.
Permitted Investments. Those investments enumerated in Section
23.01(a) (i), (ii), (iii) and (iv) of the Lease.
Person. Any individual, sole proprietorship, partnership, joint
venture, joint stock company, trust, unincorporated organization, association,
corporation, institution, entity or government (federal, state, local,
foreign or any agency, instrumentality, division or body thereof).
Preliminary Notice. Has the meaning specified in Section 4.01(a) of
the Lease.
Premium Termination Date. With respect to the Series A Certificates,
December 27, 2011, with respect to the Series B Certificates, February 5, 2010
and with respect to the Series C Certificates, March 22, 2007.
Prepayment Date. Has the meaning specified in Section 6.02(b) of the
Indenture.
Prepayment Price. Has the meaning specified in Section 6.02(b) of the
Indenture.
Principal Amount. With respect to a Certificate means the stated
original principal amount of such Certificate and, with respect to all
Certificates, means the aggregate stated original principal amounts of all
Certificates.
Property. Any right or interest in or to property of any kind
whatsoever, whether real, personal or mixed and whether tangible or intangible.
Proposed Termination Date. The proposed date of termination of the
Lease as specified by the Lessee in its notice given pursuant to Section 10.01
thereof.
Purchase Agreement. The Airbus A300-600R Freighter Purchase Agreement,
dated as of July 3, 1991 between AVSA and the Lessee, including all exhibits,
appendices and letter agreements attached thereto as originally executed or as
modified, amended or supplemented in accordance with the terms thereof, but
only to the extent that the foregoing relates to the Aircraft and to the
extent assigned pursuant to the Purchase Agreement Assignment.
Purchase Agreement Assignment. The Purchase Agreement Assignment
(Federal Express Corporation Trust No. N670FE), dated as of May 1, 1997 between
the Lessor and the Lessee.
Purchase Price. Has the meaning specified in Ancillary Agreement II.
Record Date. With respect to Payment Dates under the Indenture
(except a date for payment of defaulted interest), December 31 for January 15
Payment Dates and June 30 for July 15 Payment Dates, whether or not such date
is a Business Day.
Recourse Amount. Has the meaning specified in Section 17.10 of the
Participation Agreement.
Refinancing. A non-recourse loan to the Lessor arranged pursuant to
Section 15.01 of the Participation Agreement.
Register. Has the meaning set forth in Section 3.02 of the Indenture.
Registrar. Has the meaning set forth in Section 3.02 of the
Indenture.
Regulation D. Regulation D of the Board of Governors of the Federal
Reserve System (or any successor), as the same may be modified and
supplemented and in effect from time to time.
Related Indentures. Collectively, the Trust Indenture and Security
Agreement for each of Federal Express Corporation Trust Nos. N671FE, N672FE,
N673FE, N674FE, N583FE and N584FE, each dated as of May 1, 1997, between the
Owner Trustee and the Indenture Trustee, the Trust Indenture and Security
Agreement for Federal Express Corporation Trust No. N581FE, dated as of May 1,
1997, between Wilmington Trust Company, as owner trustee and the Indenture
Trustee, and the Trust Indenture and Security Agreement for Federal Express
Corporation Trust No. N587FE, dated as of December 1, 1996, as amended and
restated as of May 1, 1997, between Wilmington Trust Company, as owner trustee
and the Indenture Trustee.
Remaining Weighted Average Life. On a given date with respect to any
Certificate the number of days equal to the quotient obtained by dividing (i)
the sum of each of the products obtained by multiplying (a) the amount of each
then remaining scheduled payment of principal of such Certificate by (b) the
number of days from and including such prepayment date to but excluding the
dates on which each such payment of principal is scheduled to be made; by (ii)
the then outstanding principal amount of such Certificate.
Renewal Rent. The amount payable by the Lessee as rent in accordance
with Section 4.01 of the Lease during any Renewal Term.
Renewal Term. One or more terms with respect to which the Lessee has
exercised its option to renew the Lease pursuant to Section 4.01(a) thereof.
Rent. All payments due from the Lessee under the Lease as Basic Rent,
Renewal Rent and Supplemental Rent, collectively.
Rent Payment Date. September 2, 2020 and each January 15 and July 15
commencing on July 15, 1997.
Reoptimization Date. Has the meaning specified in Section 15.02(a)
of the Participation Agreement.
Replacement Aircraft. Any aircraft substituted for the Aircraft
pursuant to Section 11.03(a) of the Lease.
Replacement Airframe. Has the meaning set forth in Section 11.03 of
the Lease.
Replacement Engine. A General Electric CF6-80C2-A5F engine (or an
engine of the same or another manufacturer) of equal or greater value,
airworthiness, remaining useful life and utility as the Engine being replaced,
together with all Parts relating to such engine; provided, however, that if
such replacement engine is not a General Electric CF6-80C2-A5F engine, such
replacement engine must then be commonly used in the commercial aviation
industry on Airbus A300-600 airframes.
Responsible Officer. With respect to the Owner Trustee (except for
purposes of the Trust Agreement in which case the definition of Responsible
Officer set forth in Section 3.10 of the Trust Agreement is applicable) or the
Indenture Trustee, any officer in its Corporate Trust Administration, as the
case may be, designated by such Person to perform obligations under the
Operative Agreements, and with respect to any other party, any corporate
officer or (except in the case of the Owner Participant) other employee of a
party who, in the normal performance of his or her operational
responsibilities, with respect to the subject matter of any covenant,
agreement or obligation of such party pursuant to any Operative Agreement,
would have responsibility for and knowledge of such matter and the
requirements of any Operative Agreement with respect thereto.
S&P. Standard & Poor's Ratings Group.
Scheduled Delivery Date. The Delivery Date specified in the Delivery
Notice pursuant to Section 3.01 of the Participation Agreement.
SEC. The Securities and Exchange Commission of the United States and
any successor agencies or authorities.
Secured Obligations. Has the meaning specified in the Granting
Clause of the Indenture.
Securities Act. The Securities Act of 1933, as amended.
Series "A" or "Series A Certificates". Certificates issued and
designated as "Series A" under the Indenture, in the Principal Amount and
maturities and bearing interest as specified in Exhibit B to the Indenture
under the heading "Series A".
Series "B" or "Series B Certificates". Certificates issued and
designated as "Series B" under the Indenture, in the Principal Amount and
maturities and bearing interest as specified in Exhibit B to the Indenture
under the heading "Series B".
Series "C" or "Series C Certificates". Certificates issued and
designated as "Series C" under the Indenture, in the Principal Amount and
maturities and bearing interest as specified in Exhibit B to the Indenture
under the heading "Series C".
Series Supplement or Series Supplements. The Series Supplement
1997-1-A to be executed and delivered by the Lessee and the Pass Through
Trustee, the Series Supplement 1997-1-B to be executed and delivered by the
Lessee and the Pass Through Trustee or the Series Supplement 1997-1-C to be
executed and delivered by the Lessee and the Pass Through Trustee.
Sinking Fund Redemption Date. Has the meaning specified in Section
6.06 of the Indenture.
Sinking Fund Redemption Price. Has the meaning specified in Section
6.06 of the Indenture.
Special Aviation Counsel. Daugherty, Fowler & Peregrin.
Specified Investments. Shall mean (a) direct obligations of the
United States of America or obligations fully guaranteed by the United States
of America; (b) commercial paper rated A-1/P-1 by S&P and Moody's,
respectively or, if such ratings are unavailable, rated by any nationally
recognized rating organization in the United States equal to the highest
rating assigned by such rating organization; (c) investments in negotiable
certificates of deposit, time deposits, banker's acceptances, commercial paper
or other direct obligations of, or obligations guaranteed by, commercial banks
organized under the laws of the United States or of any political subdivision
thereof (or any U.S. branch of a foreign bank) with issuer ratings of at least
B/C by Thomson Bankwatch, having maturities no later than 90 days following
the date of such investment; (d) overnight federal funds transactions with
members of the Federal Reserve System arranged by federal funds brokers; or
(e) overnight repurchase agreements with respect to the securities described
in clause (a) above entered into with an office of a bank or trust company
which is located in the United States of America or any bank or trust company
which is organized under the laws of the United States or any state thereof
and has capital, surplus and undivided profits aggregating at least $500
million.
SSB. State Street Bank and Trust Company of Connecticut, National
Association, a national banking association.
Stipulated Loss Value. As of any Stipulated Loss Value Determination
Date during the Basic Term, the amount determined by multiplying the Purchase
Price by the percentage set forth in Schedule III of the Lease under the
heading "Stipulated Loss Value Factor" opposite such date (as such Schedule
III may be adjusted from time to time as provided in Section 3.04 of the
Lease), and during any Renewal Term, the amount determined pursuant to Section
4.01(b) of the Lease. Notwithstanding any other provisions of the Lease or
the Participation Agreement or the Indenture, each Stipulated Loss Value for
the Aircraft shall be, under any circumstances and in any event, an amount,
together with so much of the arrears portion of Basic Rent due and owing
through the date of payment of Stipulated Loss Value as does not constitute an
Excepted Payment, at least sufficient to pay in full as of such date of
payment the aggregate unpaid principal amount of and accrued interest on the
Certificates outstanding on such date of payment. Subject to the immediately
preceding sentence, it is understood and agreed that the amounts set forth on
Schedule III of the Lease, for dates other than Rent Payment Dates on which
arrears Basic Rent is due, fully reflect appropriate Basic Rent accruals and
credits of unearned Basic Rent through such date and, accordingly, no further
accrual or credit shall be required through such date whenever Stipulated Loss
Value is to be calculated with reference to any such date; provided that if
amounts in respect of Stipulated Loss Value are payable under the Operative
Agreements after the Stipulated Loss Determination Date in respect of which
such Stipulated Loss Value was determined, the Lessor shall be compensated
during the period from the Stipulated Loss Determination Date to such payment
date in accordance with the provisions of the Operative Agreements.
Stipulated Loss Value Determination Date. Each date set forth on
Schedule III of the Lease.
Subordination Agent. First Security Bank, National Association, a
national banking association, not in its individual capacity but solely as
Subordination Agent.
Supplemental Rent. (a) All amounts, liabilities and obligations
which the Lessee assumes or agrees to perform or pay under the Lease or under
the Participation Agreement or Tax Indemnity Agreement or any Ancillary
Agreement or any other Operative Agreement to the Lessor, the Owner
Participant, the Indenture Trustee, the Subordination Agent, any Liquidity
Provider or others, including, without limitation, payments of Stipulated Loss
Value, FPO Price and amounts calculated by reference to Termination Value, any
amounts of Make-Whole Premium payable under the Indenture to the extent
provided in Section 3.03 of the Lease, and all amounts required to be paid by
Lessee under the agreements, covenants and indemnities contained in the Lease
or in the Participation Agreement or the Tax Indemnity Agreement or any other
Operative Agreement, but excluding Basic Rent and (b) all amounts that the
Owner Trustee is obligated to pay in accordance with clause (b) of the last
paragraph of Section 2.04 of the Indenture.
Tax. Has the meaning set forth in Section 8.01(a) of the
Participation Agreement.
Tax Indemnity Agreement. The Tax Indemnity Agreement (Federal
Express Corporation Trust No. N670FE), dated as of May 1, 1997, between the
Lessee and the Owner Participant.
Term. The Basic Term of the lease for the Aircraft under the Lease
and, if renewed pursuant to Section 4.01 of the Lease, each Renewal Term for
the Aircraft for which the Lease is renewed, or such earlier date on which the
Lease is terminated pursuant to its terms.
Termination Date. A Rent Payment Date during the Basic Term that is
on or after December 31, 2004 in the case of Article 10 of the Lease, and in
the case of (i) Section 4.02(a)(A) of the Lease, the Rent Payment Date falling
on January 15, 2016, (ii) Section 4.02(a)(D) or (E) of the Lease, a Rent
Payment Date that is on or after the seventh anniversary of the Delivery Date
and (iii) Section 4.02(a)(F) of the Lease, the last day of the Basic Term.
Termination Value. As of any Termination Date, the amount determined
by multiplying the Purchase Price by the percentage set forth in Schedule IV
of the Lease under the heading "Termination Value Factor" opposite such
Termination Date (as such Schedule IV may be adjusted from time to time as
provided in Section 3.04 of the Lease). Notwithstanding any other provisions
of the Lease, the Participation Agreement or the Indenture, each Termination
Value shall be, under any circumstances and in any event, an amount, together
with so much of the arrears portion of Basic Rent due and owing through the
date of payment of any amount calculated by reference to Termination Value as
does not constitute an Excepted Payment, at least sufficient to pay in full as
of such date of payment the aggregate unpaid principal amount of and accrued
interest on the Certificates outstanding on such date of payment. Subject to
the immediately preceding sentence, it is understood and agreed that the
amounts set forth on Schedule IV of the Lease, for dates other than Rent
Payment Dates on which arrears Basic Rent is due, fully reflect appropriate
Basic Rent accruals and credits of unearned Basic Rent through such date and,
accordingly, no further accrual or credit shall be required through such date
whenever Termination Value is to be calculated with reference to any such
date; provided that if amounts in respect of Termination Value are payable
under the Operative Agreements after the Termination Date in respect of which
such Termination Value was determined, the Lessor shall be compensated during
the period from the Termination Date to such payment date in accordance with
the provisions of the Operative Agreements.
Transaction Costs. Those costs and expenses set forth in Section
10.01(a) of the Participation Agreement.
Transportation Code. Title 49 of the United States Code, as amended
and in effect on the date of the Lease or as subsequently amended, or any
successor or substituted legislation at the time in effect and applicable, and
the regulations promulgated pursuant thereto.
Treasury Yield. At the time of determination with respect to any
Certificate, the interest rate (expressed as a semi-annual equivalent and as a
decimal and, in the case of United States Treasury bills, converted to a bond
equivalent yield) determined to be the per annum rate equal to the semi-annual
yield to maturity for United States Treasury securities maturing on the
Average Life Date on such Certificate and trading in the public securities
markets either as determined by interpolation between the most recent weekly
average yield to maturity for two series of United States Treasury securities,
trading in public securities markets, (i) one maturing as close as possible to,
but earlier than, the Average Life Date of such Certificate and (ii) the other
maturing as close as possible to, but later than, the Average Life Date of
such Certificate. In each case as published in the most recent H.15(519) or,
if a weekly average yield to maturity for United States Treasury securities
maturing on the Average Life Date of such Certificate is reported on the most
recent H.15 (519), such weekly average yield to maturity as published in such
H.15(919). "H.15(519)" means the weekly statistical release designated as
such, or any successor publication, published by the Board of Governors of the
Federal Reserve System. The date of determination of a Make-Whole Premium
will be the third Business Day prior to the applicable prepayment date and the
"most recent H.15(519)" means the H.15(519) published prior to the close of
business on the third Business Day prior to the applicable prepayment date.
Trust Agreement. The Trust Agreement (Federal Express Corporation
Trust No. N670FE), dated as of May 1, 1997, between the Owner Participant and
the Owner Trustee in its individual capacity.
Trust Estate. The Lessor's Estate.
Trust Indenture Act. The Trust Indenture Act of 1939, as amended.
Trust Indenture Estate. All estate, right, title and interest of the
Indenture Trustee in and to any of the property, rights, interests and
privileges granted to the Indenture Trustee pursuant to the Granting Clause of
the Indenture, other than Excepted Payments and any and all other rights of
the Owner Trustee or the Owner Participant expressly reserved to the Owner
Trustee or the Owner Participant pursuant to the Indenture.
Underwriters. Morgan Stanley & Co. Incorporated, First Chicago
Capital Markets, Inc., Goldman, Sachs & Co. and J.P. Morgan & Co.
Underwriting Agreement. The Underwriting Agreement dated May 22, 1997
among the Lessee and the Underwriters.
United States, U.S. or US. The United States of America.
U.S. Air Carrier. Any United States air carrier as to which there is
in force a certificate issued pursuant to Section 41102(a) or Section 41103 of
the Transportation Code, and as to which there is in force an air carrier
operating certificate issued pursuant to Chapter 447 of the Transportation
Code and Part 121 of the regulations under such Transportation Code, for
aircraft capable of carrying ten (10) or more individuals or 6,000 pounds or
more of cargo, or which may operate as an air carrier by certification or
otherwise under any successor or substitute provision thereof or in absence
thereof.
U.S. Person. A Person described in Section 7701(a)(30) of the Code.
SCHEDULE III
PERMITTED COUNTRY LIST
Australia Luxembourg
Austria Netherlands
Belgium New Zealand
Canada Norway
Denmark Philippines
Finland Portugal
France Republic of China (Taiwan)
Germany Singapore
Greece Sweden
Iceland Switzerland
Ireland Thailand
Japan United Kingdom
SCHEDULE IV
DEBT PORTION
Debt Portion $62,392,000
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EXHIBIT A(1)(a)(i)
[Letterhead of Federal Express]
[Certificate Closing Date]
To the Addressees Listed on Schedule A Attached
Re: Federal Express Corporation Trust No. N670FE
Ladies and Gentlemen:
I am the Vice President - Law of Federal Express
Corporation, a Delaware corporation ("Federal"), and am familiar with the
transactions contemplated by the Participation Agreement (Federal Express
Corporation Trust No. N670FE), dated as of May 1, 1997 (the "Participation
Agreement"), among Federal, as Lessee, PMCC Leasing Corporation, as Owner
Participant, State Street Bank and Trust Company of Connecticut, National
Association, not in its individual capacity, except as otherwise stated,
but solely as Owner Trustee, and First Security Bank, National Association,
not in its individual capacity, except as otherwise stated, but solely as
Indenture Trustee, Pass Through Trustee and Subordination Agent, relating
to the Aircraft. This opinion is being delivered pursuant to Section
4.01(k)(i) of the Participation Agreement. Capitalized terms not otherwise
defined herein have the meanings assigned thereto in the Participation
Agreement.
The Participation Agreement provides, among other things,
for the financing on the Delivery Date of a portion of the Owner Trustee's
payment of the Purchase Price of one Airbus A300F4-605R aircraft (the
"Aircraft"), using the proceeds from the public offering of the Pass
Through Certificates. Three Classes of Pass Through Certificates will be
issued by three Pass Through Trusts formed to acquire, among other
securities, the Certificates bearing a particular interest rate and having
a particular Maturity that will be issued under the Indenture.
In connection with the opinions expressed below, I have
examined or caused to be examined by attorneys under my supervision, (i)
executed counterparts of the Pass Through Agreement, the Series Supplements
and the Operative Agreements to be delivered on the Certificate Closing
Date (the "Certificate Closing Date Documents") and (ii) the forms of the
Operative Agreements to be delivered on the Delivery Date. We have relied
upon originals or copies, certified or otherwise identified to our
satisfaction, of such corporate records, documents and other instruments as
in our judgment are relevant to rendering the opinions expressed below. As
to any facts material to the opinions expressed below (other than any
thereof relating to Federal), we have relied upon the representations and
warranties made in the Certificate Closing Date Documents, the accuracy of
which we have not independently investigated or verified. In such
examination, we have assumed the genuineness of all signatures (other than
the signatures of Federal) and the authenticity of all documents submitted
to us as originals and the conformity with the originals of all documents
submitted to us as copies. We have also assumed that each of the parties
to each of the Certificate Closing Date Documents, other than Federal, has
full power, authority and legal right to enter into such Certificate
Closing Date Documents and that each such Certificate Closing Date Document
has been duly authorized, executed and delivered by each of such parties.
Based on the foregoing, it is my opinion that:
1. Federal is a corporation duly incorporated, validly
existing and in good standing under the laws of the State of Delaware, is a
"citizen of the United States" within the meaning of Section 40102(a)(15)
of the Transportation Code, and has or had, on the date of execution
thereof, the corporate power and authority to carry on its business as
currently conducted and to enter into and perform its obligations under the
Certificate Closing Date Documents to which it is a party. Federal is duly
qualified to do business and is in good standing in the State of Tennessee
and each other state of the United States in which its operations or the
nature of its business requires Federal to so qualify, except where the
failure to so qualify would not have a material adverse impact on Federal
or its business.
2. Federal possesses all necessary certificates,
franchises, licenses, permits, rights and concessions and consents which
are material to the operation of the routes flown by it and the conduct of
its business and operations as currently conducted, and each such
certificate, franchise, license, permit, right and concession and consent
is in full force and effect.
3. Each of the Certificate Closing Date Documents to which
Federal is a party has or had, on the date of execution thereof, been duly
authorized, executed and delivered by Federal and each constitutes the
legal, valid and binding obligation of Federal enforceable against Federal
in accordance with its terms. Each of the Certificate Closing Date
Documents to which Federal is to be a party and which are to be executed on
the Delivery Date has been duly authorized by Federal.
4. Neither the execution and delivery by Federal of the
Certificate Closing Date Documents to which Federal is a party, nor the
consummation of any of the transactions by Federal contemplated thereby,
nor the performance of the obligations thereunder by Federal, did at the
time of execution and delivery, or does presently (a) require any
stockholder approval or violate the certificate of incorporation or by-laws
of Federal or (b) conflict with or contravene the provisions of, or
constitute a default under, or result in the creation of any Lien (other
than Liens permitted under Section 6.01(a) of the Lease) upon the property
of Federal under any law, governmental rule or regulation, or the charter
or bylaws of Federal or any order, writ, injunction or decree of any court
or governmental authority against Federal or by which any of its properties
may be bound or any indenture, mortgage, contract or other agreement known
to me to which Federal is a party or by which it may be bound or, require
the approval or consent of any trustee or the holders of any indebtedness
or obligations of Federal.
5. Neither the execution and delivery by Federal of the
Certificate Closing Date Documents to which it is a party, nor the
consummation of any transactions by Federal contemplated thereby, nor the
performance of the obligations thereunder by Federal, did or does, as the
case may be, (a) require the consent or approval of, the giving of notice
to, or (except as described or contemplated in the Participation Agreement
and the Lease, all of which are required to be performed on or prior to the
Certificate Closing Date and which shall have been accomplished on or prior
to the Certificate Closing Date) the registration with, or the taking of
any other action in respect of, the Aeronautics Authority, the Securities
and Exchange Commission or any other authority or agency of the federal
government or of the State of Tennessee other than (i) the registration of
the issuance and sale of the Pass Through Certificates under the Securities
Act and (ii) compliance with the securities laws of each applicable state,
or (b) contravene any judgment or order applicable to or binding on Federal
or any law or governmental rule or regulation of the United States or of
the State of Tennessee.
6. There is no pending, or to my knowledge, threatened
action or proceeding before any court or administrative agency which
individually (or in the aggregate in the case of any group of related
lawsuits) is expected to have a material adverse effect on (A) the
financial condition of Federal, except for the matters described (a) under
"Legal Proceedings" in Federal's Annual Report on Form 10-K for the fiscal
year ended May 31, 1996 (as updated by Note 7 to the financial statements
included in Federal's Quarterly Reports on Form 10-Q for the fiscal
quarters ended August 31, 1996, November 30, 1996 and February 28, 1997)
and (b) in Federal's Current Reports on Form 8-K dated June 7, 1996, August
16, 1996 and March 4, 1997, as to which I can express no opinion at this
time concerning Federal's liability (if any) or the effect of any adverse
determination upon the business, condition (financial or otherwise) or
operations of Federal or (B) the ability of Federal to perform its
obligations under the Certificate Closing Date Documents.
7. Federal is a duly certificated "air carrier" within the
meaning of the Transportation Code, and a holder of a certificate under
Sections 41102(a) and 41103 of the Transportation Code, and an "air carrier
operating certificate" issued under Chapter 447 of the Transportation Code
for aircraft capable of carrying ten (10) or more individuals or 6,000
pounds or more of cargo, and each such certificate is in full force and
effect.
8. Federal's principal place of business and chief
executive office (as such term is defined in the Uniform Commercial Code in
effect in the State of Tennessee) are located at 2005 Corporate Avenue,
Memphis, Shelby County, Tennessee.
9. Federal is not, and is not directly or indirectly
controlled by or acting on behalf of any Person which is, an "investment
company" within the meaning of the Investment Company Act of 1940, as
amended.
The opinions expressed in paragraph 3 above as to the
enforceability of the Certificate Closing Date Documents to which Federal
is a party are based upon the assumption for purposes of such opinions and
without independent analysis that, notwithstanding the respective choice of
laws clauses in the Certificate Closing Date Documents, the governing law
with respect to each of the Certificate Closing Date Documents is identical
in all relevant respects to the law of the State of Tennessee. Insofar as
the foregoing opinion relates to the enforceability of any instrument, such
enforceability is subject to applicable bankruptcy, insolvency and other
similar laws affecting the enforcement of creditors' rights generally
(whether such enforceability is considered in a proceeding in equity or at
law). The enforceability of the remedies provided under the Lease may also
be limited by applicable laws which may affect the remedies provided
therein but which do not in my opinion affect the validity of the Lease or
make such remedies inadequate for the practical realization of the benefits
intended to be provided thereby.
I do not express any opinion as to matters governed by any
law other than the Federal laws of the United States of America, the
corporation law of the State of Delaware and the laws of the State of
Tennessee.
This opinion is delivered to you solely for your use in
connection with the transaction described herein, and may not be used for
any other purpose, and may not be relied upon by any other person, without
my prior written consent.
George W. Hearn
SCHEDULE A
Owner Trustee
State Street Bank and Trust Company
of Connecticut, National Association
Two International Place
4th Floor
Boston, Massachusetts 02110
Indenture Trustee, Pass Through Trustee & Subordination Agent
First Security Bank, National Association
79 South Main Street
Salt Lake City, Utah 84111
Owner Participant
PMCC Leasing Corporation
200 First Stamford Place
Stamford, Connecticut 06902
Underwriters
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
First Chicago Capital Markets, Inc.
Corporate Securities
One First National Plaza
Chicago, Illinois 60670
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
J.P. Morgan & Co.
60 Wall Street
New York, New York 10260
Liquidity Provider
Kredietbank N.V., New York Branch
125 West 55th Street
New York, New York 10019
EXHIBIT A(1)(a)(ii)
[Letterhead of Federal Express]
[Delivery Date]
To the Addressees Listed on Schedule A Attached
Re: Federal Express Corporation Trust No. N670FE
Ladies and Gentlemen:
I am the Vice President - Law of Federal Express
Corporation, a Delaware corporation ("Federal"), and am familiar with the
transactions contemplated by the Participation Agreement (Federal Express
Corporation Trust No. N670FE), dated as of May 1, 1997 (the "Participation
Agreement"), among Federal, as Lessee, PMCC Leasing Corporation, as Owner
Participant, State Street Bank and Trust Company of Connecticut, National
Association, not in its individual capacity, except as otherwise stated,
but solely as Owner Trustee, and First Security Bank, National Association,
not in its individual capacity, except as otherwise stated, but solely as
Indenture Trustee, Pass Through Trustee and Subordination Agent, relating
to the Aircraft. This opinion is being delivered pursuant to Section
4.02(d)(i) of the Participation Agreement. Capitalized terms not otherwise
defined herein have the meanings assigned thereto in the Participation
Agreement.
The Participation Agreement provides, among other things,
for the financing on the Delivery Date of a portion of the Owner Trustee's
payment of the Purchase Price of one Airbus A300F4-605R aircraft (the
"Aircraft"), using the proceeds from the public offering of the Pass
Through Certificates. Three Classes of Pass Through Certificates were
issued by three Pass Through Trusts formed to acquire, among other
securities, the Certificates bearing a particular interest rate and having
a particular Maturity that were issued under the Indenture, as supplemented
by the related Indenture and Security Agreement Supplement.
In connection with the opinions expressed below, I have
examined or caused to be examined by attorneys under my supervision,
executed counterparts of the Operative Agreements, the Pass Through
Agreement and each Series Supplement (the "Transaction Agreements"). We
have relied upon originals or copies, certified or otherwise identified to
our satisfaction, of such corporate records, documents and other
instruments as in our judgment are relevant to rendering the opinions
expressed below. As to any facts material to the opinions expressed below
(other than any thereof relating to Federal), we have relied upon the
representations and warranties made in the Transaction Agreements, the
accuracy of which we have not independently investigated or verified. In
such examination, we have assumed the genuineness of all signatures (other
than the signatures of Federal) and the authenticity of all documents
submitted to us as originals and the conformity with the originals of all
documents submitted to us as copies. We have also assumed that each of the
parties to each of the Transaction Agreements, other than Federal, has full
power, authority and legal right to enter into such Transaction Agreements
and that each such Transaction Agreement has been duly authorized, executed
and delivered by each of such parties.
Based on the foregoing, it is my opinion that:
1. Federal is a corporation duly incorporated, validly
existing and in good standing under the laws of the State of Delaware, is a
"citizen of the United States" within the meaning of Section 40102(a)(15)
of the Transportation Code, and has or had, on the date of execution
thereof, the corporate power and authority to carry on its business as
currently conducted and to enter into and perform its obligations under the
Transaction Agreements to which it is a party. Federal is duly qualified
to do business and is in good standing in the State of Tennessee and each
other state of the United States in which its operations or the nature of
its business requires Federal to so qualify, except where the failure to so
qualify would not have a material adverse impact on Federal or its
business.
2. Federal possesses all necessary certificates,
franchises, licenses, permits, rights and concessions and consents which
are material to the operation of the routes flown by it and the conduct of
its business and operations as currently conducted, and each such
certificate, franchise, license, permit, right and concession and consent
is in full force and effect.
3. Each of the Transaction Agreements to which Federal is a
party has or had, on the date of execution thereof, been duly authorized,
executed and delivered by Federal and each constitutes the legal, valid and
binding obligation of Federal enforceable against Federal in accordance
with its terms.
4. Neither the execution and delivery by Federal of the
Transaction Agreements to which Federal is a party, nor the consummation of
any of the transactions by Federal contemplated thereby, nor the
performance of the obligations thereunder by Federal, did at the time of
execution and delivery, or does presently (a) require any stockholder
approval or violate the certificate of incorporation or by-laws of Federal
or (b) conflict with or contravene the provisions of, or constitute a
default under, or result in the creation of any Lien (other than Liens
permitted under Section 6.01(a) of the Lease) upon the property of Federal
under any law, governmental rule or regulation, or the charter or bylaws of
Federal or any order, writ, injunction or decree of any court or
governmental authority against Federal or by which any of its properties
may be bound or any indenture, mortgage, contract or other agreement known
to me to which Federal is a party or by which it may be bound or, require
the approval or consent of any trustee or the holders of any indebtedness
or obligations of Federal.
5. Neither the execution and delivery by Federal of the
Transaction Agreements to which it is a party, nor the consummation of any
transactions by Federal contemplated thereby, nor the performance of the
obligations thereunder by Federal, did or does, as the case may be, (a)
require the consent or approval of, the giving of notice to, or (except as
described or contemplated in the Participation Agreement and the Lease, all
of which were or are required to be performed on or prior to the Delivery
Date and which were or shall have been accomplished on or prior to the
Delivery Date) the registration with, or the taking of any other action in
respect of, the Aeronautics Authority, the Securities and Exchange
Commission or any other authority or agency of the federal government or of
the State of Tennessee other than (i) the registration of the issuance and
sale of the Pass Through Certificates under the Securities Act, (ii)
compliance with the securities laws of each applicable state and (iii) the
filings and recordings referred to in paragraph 7 below, or (b) contravene
any judgment or order applicable to or binding on Federal or any law or
governmental rule or regulation of the United States or of the State of
Tennessee.
6. There is no pending, or to my knowledge, threatened
action or proceeding before any court or administrative agency which
individually (or in the aggregate in the case of any group of related
lawsuits) (i) is expected to have a material adverse effect on (A) the
financial condition of Federal, except for the matters described (a) under
"Legal Proceedings" in Federal's Annual Report on Form 10-K for the fiscal
year ended May 31, 1996 (as updated by Note 7 to the financial statements
included in Federal's Quarterly Reports on Form 10-Q for the fiscal
quarters ended August 31, 1996, November 30, 1996 and February 28, 1997)
and (b) in Federal's Current Reports on Form 8-K dated June 7, 1996, August
16, 1996 and March 4, 1997, as to which I can express no opinion at this
time concerning Federal's liability (if any) or the effect of any adverse
determination upon the business, condition (financial or otherwise) or
operations of Federal or (B) the ability of Federal to perform its
obligations under the Transaction Agreements, or (ii) involves the
Aircraft.
7. Except for the registration in the Owner Trustee's name
of the Aircraft pursuant to the Transportation Code, and except for the
filing and, where appropriate, recording, pursuant to the Transportation
Code of (A) AVSA's FAA Bill of Sale, (B) the Trust Agreement, (C) the
Lease (with the Lease Supplement covering the Aircraft, the Indenture and
the Indenture and Security Agreement Supplement covering the Aircraft
attached as exhibits) and (D) the Indenture (with the Indenture and
Security Agreement Supplement covering the Aircraft attached as an
exhibit), no further action, including any filing or recording of any
document is necessary or advisable in order to establish and perfect the
Owner Trustee's title to and interest in the Aircraft as against Federal
and any third parties, or to perfect the first mortgage lien on the
Aircraft in favor of the Indenture Trustee in each case with respect to
such portion of the Aircraft as is covered by the recording system
established by the Transportation Code.
8. Federal is a duly certificated "air carrier" within the
meaning of the Transportation Code, and a holder of a certificate under
Sections 41102(a) and 41103 of the Transportation Code, and an "air carrier
operating certificate" issued under Chapter 447 of the Transportation Code
for aircraft capable of carrying ten (10) or more individuals or 6,000
pounds or more of cargo, and each such certificate is in full force and
effect.
9. On the date hereof the Owner Trustee received good and
valid title to the Aircraft free and clear of all Liens on file with the
FAA, except for Liens permitted under Section 6.01(a) of the Lease.
10. Federal's principal place of business and chief
executive office (as such term is defined in the Uniform Commercial Code in
effect in the State of Tennessee) are located at 2005 Corporate Avenue,
Memphis, Shelby County, Tennessee.
11. Federal is not, and is not directly or indirectly
controlled by or acting on behalf of any Person which is, an "investment
company" within the meaning of the Investment Company Act of 1940, as
amended.
The opinions expressed in paragraph 3 above as to the
enforceability of the Transaction Agreements to which Federal is a party
are based upon the assumption for purposes of such opinions and without
independent analysis that, notwithstanding the respective choice of laws
clauses in the Transaction Agreements, the governing law with respect to
each of the Transaction Agreements is identical in all relevant respects to
the law of the State of Tennessee. Insofar as the foregoing opinion
relates to the enforceability of any instrument, such enforceability is
subject to applicable bankruptcy, insolvency and other similar laws
affecting the enforcement of creditors' rights generally (whether such
enforceability is considered in a proceeding in equity or at law). The
enforceability of the remedies provided under the Lease may also be limited
by applicable laws which may affect the remedies provided therein but which
do not in my opinion affect the validity of the Lease or make such remedies
inadequate for the practical realization of the benefits intended to be
provided thereby.
I do not express any opinion as to matters governed by any
law other than the Federal laws of the United States of America, the
corporation law of the State of Delaware and the laws of the State of
Tennessee.
As to the matters referred to in paragraphs 5, 7 and 9, I
have relied on the opinion of Daugherty, Fowler & Peregrin of even date
herewith, to the extent such matters are addressed in such counsel's
opinion and subject to the assumptions and qualifications expressed
therein.
This opinion is delivered to you solely for your use in
connection with the transaction described herein, and may not be used for
any other purpose, and may not be relied upon by any other person, without
my prior written consent.
George W. Hearn
SCHEDULE A
Owner Trustee
State Street Bank and Trust Company
of Connecticut, National Association
Two International Place
4th Floor
Boston, Massachusetts 02110
Indenture Trustee, Pass Through Trustee & Subordination Agent
First Security Bank, National Association
79 South Main Street
Salt Lake City, Utah 84111
Owner Participant
PMCC Leasing Corporation
200 First Stamford Place
Stamford, Connecticut 06902
Underwriters
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
First Chicago Capital Markets, Inc.
Corporate Securities
One First National Plaza
Chicago, Illinois 60670
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
J.P. Morgan & Co.
60 Wall Street
New York, New York 10260
Liquidity Provider
Kredietbank N.V., New York Branch
125 West 55th Street
New York, New York 10019
EXHIBIT A(1)(b)(i)
[Letterhead of Davis Polk & Wardwell]
[Certificate Closing Date]
To Each of the Parties named on Schedule A Hereto
Re: Federal Express Corporation Trust No. N670FE
Ladies and Gentlemen:
We have acted as special counsel for Federal Express
Corporation, a Delaware corporation ("Federal Express"), in connection with
the transactions contemplated by the Participation Agreement (Federal Express
Corporation Trust No. N670FE), dated as of May 1, 1997 (the "Participation
Agreement"), among Federal Express, as Lessee, PMCC Leasing Corporation, as
Owner Participant, State Street Bank and Trust Company of Connecticut,
National Association, not in its individual capacity, except as otherwise
stated, but solely as Owner Trustee, and First Security Bank, National
Association, not in its individual capacity, except as otherwise stated, but
solely as Indenture Trustee, Pass Through Trustee and Subordination Agent,
relating to the Aircraft. This opinion is being delivered pursuant to Section
4.01(k)(v) of the Participation Agreement. Capitalized terms not otherwise
defined herein have the meanings assigned thereto in the Participation
Agreement.
The Participation Agreement provides, among other things, for
the financing on the Delivery Date of a portion of the Owner Trustee's payment
of the Purchase Price of one Airbus A300F4-605R Aircraft using the proceeds
from the public offering of the Pass Through Certificates. On the Certificate
Closing Date, three Classes of Pass Through Certificates will be issued by
separate Pass Through Trusts, each formed to acquire, among other securities,
the Certificates bearing a particular interest rate and having a particular
Maturity that will be issued under the Indenture.
In connection with the opinions expressed below, we have
examined executed counterparts of the Operative Agreements, the Pass Through
Certificates, the Pass Through Agreement and each Series Supplement (the
"Certificate Closing Date Documents") and the forms of the Operative
Agreements to be delivered on the Delivery Date. We have also examined
originals, or copies certified to our satisfaction, of such other agreements,
documents, certificates and statements of governmental officials and corporate
officers as we have deemed necessary or advisable as a basis for such
opinions. In such examination, we have assumed the genuineness of all
signatures and the authenticity of all documents submitted to us as originals
and the conformity with the originals of all documents submitted to us as
copies.
As to any facts material to our opinions expressed below, we
have, with your consent, relied on the representations and warranties made in
or pursuant to the Participation Agreement and the other documents referred to
therein, the accuracy of which we have not independently verified. In
addition, we have, when relevant facts were not independently established by
us, relied, to the extent we deemed such reliance proper, upon certificates of
public officials and certificates, telegrams and other written or telephoned
statements of officers of the parties referred to herein.
Based on the foregoing, it is our opinion that:
1. Assuming (i) the due authorization, execution and
delivery of the Certificate Closing Date Documents by each of the parties
to each such document (other than Federal Express), (ii) each such party
has full power and legal right to enter into and perform its respective
obligations under the Certificate Closing Date Documents, (iii) that the
execution, delivery and performance of each of the Certificate Closing Date
Documents by each of the parties thereto will not violate the respective
parties' constituent documents, (iv) the due authorization, execution,
issuance and delivery by the Owner Trustee, and the due authentication by
the Indenture Trustee, of the Certificates to be issued under the Indenture
in accordance with the terms of the Indenture, (v) the due authorization,
execution, issuance, delivery and authentication by the Pass Through
Trustee of the Pass Through Certificates to be issued under the Pass
Through Agreement and the Series Supplement relating to such Pass Through
Certificates, in each case in accordance with the terms of the Pass Through
Agreement and such Series Supplement, and (vi) that the form of each
Certificate Closing Date Document is in compliance with all applicable laws
and governmental rules and regulations (other than the laws of the United
States and the State of New York), then: (A) to the extent governed by New
York law, each Certificate Closing Date Document in form constitutes a
legal, valid and binding agreement of each party thereto enforceable
against each such party in accordance with its terms; (B) the Indenture
creates, for the benefit of the Holders, the security interest in the Trust
Indenture Estate that it purports to create, except that no opinion is
given with respect to perfection of such security interest on the date
hereof; (C) the Certificates, when issued to and acquired by the Pass
Through Trustee, will be legal, valid and binding obligations of the Owner
Trustee enforceable against the Owner Trustee in accordance with their
terms and the terms of the Indenture and will be entitled to the benefits
of the Indenture, including the benefit of the security interest created
thereby, except that no opinion is given with respect to perfection of such
security interest on the date hereof; (D) the Pass Through Certificates,
when issued to and acquired by the Underwriters in accordance with the
Underwriting Agreement, will be legal, valid and binding obligations of the
Pass Through Trustee enforceable against the Pass Through Trustee in
accordance with their terms and will be entitled to the benefits of the
Pass Through Agreement and the Series Supplement relating thereto; and (E)
the beneficial interest of the Owner Participant under the Trust Agreement
in and to the properties which are part of the Trust Indenture Estate is
subject, to the extent provided in the Indenture, to the Lien of the
Indenture in favor of the Holders.
2. (a) Each of the Certificate Closing Date Documents to
which Federal Express is a party has been duly authorized, executed and
delivered by Federal Express. Each of the Operative Agreements to which
Federal Express is to be a party and which are to be delivered on the
Delivery Date has been authorized by Federal Express.
(b) The execution, delivery and performance by Federal
Express of each of the Certificate Closing Date Documents to which Federal
Express is a party do not, or did not on the date of execution thereof,
violate, and fully comply, or did fully comply on the date of execution
thereof, with, any laws and governmental rules and regulations of the State
of New York that may be applicable to Federal Express. The opinion set
forth in this paragraph 2(b) is rendered without regard to the taking of
any action or the conduct of any other business by Federal Express in the
State of New York other than the transactions contemplated by the
Certificate Closing Date Documents.
3. The execution, delivery and performance of the
Certificate Closing Date Documents (other than the Certificates) by the
Owner Trustee in its individual or trust capacity, as the case may be, and
the issuance, execution, delivery and performance of the Certificates by
the Owner Trustee in its trust capacity do not violate, and fully comply
with, any laws and governmental rules and regulations of the State of New
York that may be applicable to the Owner Trustee in its individual or trust
capacity, as the case may be. The opinion set forth in this paragraph 3 is
rendered without regard to the effect, if any, on such issuance (in the
case of the Certificates), execution, delivery or performance, of the
taking of any action, the conduct of any business or the exercise of any
other powers by State Street Bank and Trust Company of Connecticut,
National Association in its individual or trust capacity in the State of
New York not related to the transactions contemplated by the Certificate
Closing Date Documents. We have assumed that State Street Bank and Trust
Company of Connecticut, National Association has made the filings necessary
to comply with Section 131.3 of the Banking Law of the State of New York,
however we express no opinion as to whether State Street Bank and Trust
Company of Connecticut, National Association is required to comply with
said Section 131.3.
4. It is not necessary, in connection with the creation of
the beneficial interest of the Owner Participant in the Trust Indenture Estate
under the circumstances contemplated by the Participation Agreement to
register such beneficial interest under the Securities Act of 1933, as
amended, or to qualify the Trust Agreement under the Trust Indenture Act of
1939, as amended.
The foregoing opinions are subject to the following
qualifications:
(a) We have relied, with your consent, without independent
investigation and verification and subject to the assumptions and
qualifications contained therein, upon the opinion of George W.
Hearn, Vice President - Law of Federal Express to be delivered to
you and dated the date hereof, for purposes of the matters covered
thereby.
(b) We are qualified to practice law in the State of New York,
and we do not purport to be experts on, or to express any opinion
herein concerning, any laws other than the laws of the State of New
York, the laws of the United States and the General Corporation Law
of the State of Delaware.
(c) The opinion contained in paragraph 1(A) above as to
enforceability is subject to (i) applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement
of creditors' rights generally and (ii) general principles of equity
which may affect the remedies provided in the agreements referred to
in said opinions, which laws and principles, however, do not in our
opinion make the remedies provided in said agreements inadequate for
the practical realization of the benefits of the security intended to
be provided thereby.
(d) This opinion is rendered solely to you at Federal
Express's request in connection with the above matter. This
opinion may not be relied upon by you for any other purpose or
relied upon by any other Person without our prior written consent.
Very truly yours,
Davis Polk & Wardwell
SCHEDULE A
Lessee
Federal Express Corporation
2007 Corporate Avenue
Memphis, Tennessee 38132
Owner Trustee
State Street Bank and Trust Company
of Connecticut, National Association
Two International Place
4th Floor
Boston, Massachusetts 02110
Indenture Trustee, Pass Through Trustee & Subordination Agent
First Security Bank, National Association
79 South Main Street
Salt Lake City, Utah 84111
Owner Participant
PMCC Leasing Corporation
200 First Stamford Place
Stamford, Connecticut 06902
Underwriters
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
First Chicago Capital Markets, Inc.
Corporate Securities
One First National Plaza
Chicago, Illinois 60670
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
J.P. Morgan & Co.
60 Wall Street
New York, New York 10260
Liquidity Provider
Kredietbank N.V., New York Branch
125 West 55th Street
New York, New York 10019
EXHIBIT A(1)(b)(ii)
[Letterhead of Davis Polk & Wardwell]
[Delivery Date]
To Each of the Parties named on Schedule A Hereto
Re: Federal Express Corporation Trust No. N670FE
Ladies and Gentlemen:
We have acted as special counsel for Federal Express
Corporation, a Delaware corporation ("Federal Express"), in connection with
the transactions contemplated by the Participation Agreement (Federal Express
Corporation Trust No. N670FE), dated as of May 1, 1997 (the "Participation
Agreement"), among Federal Express, as Lessee, PMCC Leasing Corporation, as
Owner Participant, State Street Bank and Trust Company of Connecticut,
National Association, not in its individual capacity but solely as Owner
Trustee, and First Security Bank, National Association, not in its individual
capacity, except as otherwise stated, but solely as Indenture Trustee, Pass
Through Trustee and Subordination Agent, relating to the Aircraft. This
opinion is being delivered pursuant to Section 4.02(d)(ii) of the
Participation Agreement. Capitalized terms not otherwise defined herein have
the meanings assigned thereto in the Participation Agreement.
The Participation Agreement provides, among other things, for
the financing on the Delivery Date of the Owner Trustee's payment of a portion
of the Purchase Price of one Airbus A300F4-605R Aircraft (the "Aircraft") using
the proceeds from the public offering of the Pass Through Certificates. On the
Certificate Closing Date, three Classes of Pass Through Certificates were
issued by separate Pass Through Trusts, each formed to acquire, among other
securities, the Certificates bearing a particular interest rate and having a
particular Maturity issued under the Indenture. The Aircraft is to be leased
to Federal Express by the Owner Trustee pursuant to the Lease and subjected to
the Lien of the Indenture, and is to be delivered by the Owner Trustee to the
Lessee on this date, and in connection with the delivery of the Aircraft, the
Owner Trustee and Federal Express will execute and deliver the Lease
Supplement, and the Owner Trustee will execute and deliver the Indenture and
Security Agreement Supplement.
In connection with the opinions expressed below, we have
examined executed counterparts of the Operative Agreements, the Pass Through
Certificates, the Pass Through Agreement and each Series Supplement (the
"Transaction Agreements"). We have also examined originals, or copies
certified to our satisfaction, of such other agreements, documents,
certificates and statements of governmental officials and corporate officers
as we have deemed necessary or advisable as a basis for such opinions. In such
examination, we have assumed the genuineness of all signatures and the
authenticity of all documents submitted to us as originals and the conformity
with the originals of all documents submitted to us as copies.
As to any facts material to our opinions expressed below, we
have, with your consent, relied on the representations and warranties made in
or pursuant to the Participation Agreement and the other documents referred to
therein, the accuracy of which we have not independently verified. In
addition, we have, when relevant facts were not independently established by
us, relied, to the extent we deemed such reliance proper, upon certificates of
public officials and certificates, telegrams and other written or telephoned
statements of officers of the parties referred to herein.
Based on the foregoing, it is our opinion that:
1. With respect to that portion, if any, of the Aircraft
and the other property included in the Lessor's Estate as may not be
covered by the recording system established by the FAA pursuant to Section
44107 of the Transportation Code, no filing or recording of any document or
other action was or is necessary in order to establish the Owner Trustee's
title thereto and interest therein as against Federal Express and any third
parties.
2. Subject to execution and delivery of the Lease
Supplement and the Indenture and Security Agreement Supplement for the
Aircraft and to the registration of the Aircraft with the FAA in the name
of the Owner Trustee, the Lease, as supplemented, will create a valid
leasehold interest in the Aircraft, the entitlement thereof to the benefits
of recordation under the Transportation Code being subject to the due and
timely filing and, where appropriate, recording of (A) AVSA's FAA Bill of
Sale, (B) the Trust Agreement, (C) the Lease (with the Lease Supplement
covering the Aircraft, the Indenture and the Indenture and Security
Agreement Supplement covering the Aircraft attached as exhibits) and (D)
the Indenture (with the Indenture and Security Agreement Supplement
covering the Aircraft attached as an exhibit), pursuant to the
Transportation Code, and assuming that at the time of such filing no other
documents relating to the Aircraft have been filed pursuant to the
Transportation Code.
3. Assuming (i) the due authorization, execution and
delivery of the Transaction Agreements by each of the parties to each such
document (other than Federal Express), (ii) each such party has full power
and legal right to enter into and perform its respective obligations under
the Transaction Agreements, (iii) that the execution, delivery and
performance of each of the Transaction Agreements by each of the parties
thereto will not violate the respective parties' constituent documents,
(iv) the due authorization, execution, issuance and delivery by the Owner
Trustee, and the due authentication by the Indenture Trustee, of the
Certificates issued under the Indenture in accordance with the terms of the
Indenture, (v) the due authorization, execution, issuance, delivery and
authentication by the Pass Through Trustee of the Pass Through Certificates
issued under the Pass Through Agreement and the Series Supplement relating
to such Pass Through Certificates, in each case in accordance with the
terms of the Pass Through Agreement and such Series Supplement, and (vi)
that the form of each Transaction Agreement is in compliance with all
applicable laws and governmental rules and regulations (other than the laws
of the United States and the State of New York), then: (A) to the extent
governed by New York law, each Transaction Agreement in form constitutes a
legal, valid and binding agreement of each party thereto enforceable
against each such party in accordance with its terms; (B) the Indenture
creates, for the benefit of the Holders, the security interest in the Trust
Indenture Estate that it purports to create; (C) the Certificates are
legal, valid and binding obligations of the Owner Trustee enforceable
against the Owner Trustee in accordance with their terms and the terms of
the Indenture and are entitled to the benefits of the Indenture, including
the benefit of the security interest created thereby; and (D) the
beneficial interest of the Owner Participant under the Trust Agreement in
and to the properties which are part of the Trust Indenture Estate is
subject, to the extent provided in the Indenture, as supplemented by the
Indenture and Security Agreement Supplement, to the Lien of the Indenture
in favor of the Holders. The opinions set forth in this paragraph 3 are
subject to the due filing and recording, where appropriate, with the FAA of
the documents referred to in paragraph 2 above.
4. (a) Each of the Transaction Agreements to which Federal
Express is a party has been duly authorized, executed and delivered by Federal
Express.
(b) The execution, delivery and performance by Federal Express
of each of the Transaction Agreements to which Federal Express is a party do
not, or did not on the date of execution thereof, violate, and fully comply,
or did fully comply on the date of execution thereof, with, any laws and
governmental rules and regulations of the State of New York that may be
applicable to Federal Express. The opinion set forth in this paragraph 4(b)
is rendered without regard to the taking of any action or the conduct of any
other business by Federal Express in the State of New York other than the
transactions contemplated by the Transaction Agreements.
5. The execution, delivery and performance of the
Transaction Agreements (other than the Certificates) by the Owner Trustee
in its individual or trust capacity, as the case may be, and the issuance,
execution, delivery and performance of the Certificates by the Owner
Trustee in its trust capacity do not violate, and fully comply with, any
laws and governmental rules and regulations of the State of New York that
may be applicable to the Owner Trustee in its individual or trust capacity,
as the case may be. The opinion set forth in this paragraph 5 is rendered
without regard to the effect, if any, on such issuance (in the case of the
Certificates), execution, delivery or performance, of the taking of any
action, the conduct of any business or the exercise of any other powers by
State Street Bank and Trust Company of Connecticut, National Association in
its individual or trust capacity in the State of New York not related to
the transactions contemplated by the Transaction Agreements. We have
assumed that State Street Bank and Trust Company of Connecticut, National
Association has made the filings necessary to comply with Section 131.3 of
the Banking Law of the State of New York, however we express no opinion as
to whether State Street Bank and Trust Company of Connecticut, National
Association is required to comply with said Section 131.3.
6. All the properties which are part of the Trust Indenture
Estate (including all right, title and interest of the Owner Trustee pledged
and mortgaged by it pursuant to the Indenture in and to the Aircraft and the
Lease) have been pledged and mortgaged with the Indenture Trustee as part of
the Trust Indenture Estate (subject to the due filing and, where appropriate,
recording of those documents referred to in paragraph 2 above and the
financing statement referred to in Section 4.02(f) of the Participation
Agreement), and the beneficial interest of the Owner Participant under the
Trust Agreement in and to such properties are subject, to the extent provided
in the Indenture, to the Lien of the Indenture in favor of the Holders of the
Certificates issued and to be issued under the Indenture.
7. The Indenture and Security Agreement Supplement, pursuant
to the Granting Clause of the Indenture, creates, as security for the
Certificates duly issued and to be issued under the Indenture, the first
priority security interest in the Aircraft it purports to create, the
perfection and rank thereof being subject to the registration with the FAA of
the Aircraft in the name of the Owner Trustee and the due filing and, where
appropriate, recording in accordance with the Transportation Code of the
documents referred to in paragraph 2 above. We express no opinion with
respect to the status of any security interest in any portion of the Aircraft
which does not constitute an "aircraft" or "aircraft engine", as defined in
paragraphs (6) and (7) of Section 40102(a) of the Transportation Code.
8. Except for (i) the filings and recordings referred to in
paragraph 2 above, (ii) the registration of the issuance and sale of the
Pass Through Certificates under the Securities Act and (iii) compliance
with the securities laws of each applicable state, neither the execution
and delivery by Federal Express of the Participation Agreement or any other
Operative Agreement to which it is a party, nor the consummation of any of
the transactions by Federal Express contemplated thereby, requires the
consent or approval of, the giving of notice to, or the registration with,
or the taking of any other action in respect of, the Department of
Transportation, the FAA, the Securities and Exchange Commission or any
other Federal or New York State governmental authority.
9. It is not necessary, in connection with the creation of
the beneficial interest of the Owner Participant in the Trust Indenture Estate
under the circumstances contemplated by the Participation Agreement to
register such beneficial interest under the Securities Act of 1933, as
amended, or to qualify the Trust Agreement under the Trust Indenture Act of
1939, as amended.
10. The provisions of Section 1110 of the United States
Bankruptcy Code will apply to the Aircraft for the benefit of the Lessor,
as lessor under and by reason of the Lease. The Lease, including the
rights under Section 1110 of the United States Bankruptcy Code, has been
assigned to the Indenture Trustee pursuant to the Indenture as part of the
collateral for the Certificates and, as assignee, the Indenture Trustee has
the benefit of Section 1110.
The foregoing opinions are subject to the following
qualifications:
(a) We have relied, with your consent, without independent
investigation and verification and subject to the assumptions and
qualifications contained therein, upon the opinions of Daugherty,
Fowler & Peregrin and George W. Hearn, Vice President - Law of
Federal Express to be delivered to you and dated the date hereof, for
purposes of the matters covered thereby.
(b) We are qualified to practice law in the State of New York,
and we do not purport to be experts on, or to express any opinion
herein concerning, any laws other than the laws of the State of New
York, the laws of the United States and the General Corporation Law
of the State of Delaware. We express no opinion as to any matters
involving aviation law.
(c) The opinion contained in paragraph 3(A) above as to
enforceability is subject to (i) applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement
of creditors' rights generally and (ii) general principles of equity
which may affect the remedies provided in the agreements referred to
in said opinions, which laws and principles, however, do not in our
opinion make the remedies provided in said agreements inadequate for
the practical realization of the benefits of the security intended to
be provided thereby.
(d) This opinion is rendered solely to you at Federal
Express's request in connection with the above matter. This
opinion may not be relied upon by you for any other purpose or
relied upon by any other Person without our prior written consent.
Very truly yours,
Davis Polk & Wardwell
SCHEDULE A
Lessee
Federal Express Corporation
2007 Corporate Avenue
Memphis, Tennessee 38132
Owner Trustee
State Street Bank and Trust Company
of Connecticut, National Association
Two International Place
4th Floor
Boston, Massachusetts 02110
Indenture Trustee, Pass Through Trustee & Subordination Agent
First Security Bank, National Association
79 South Main Street
Salt Lake City, Utah 84111
Owner Participant
PMCC Leasing Corporation
200 First Stamford Place
Stamford, Connecticut 06902
Underwriters
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
First Chicago Capital Markets, Inc.
Corporate Securities
One First National Plaza
Chicago, Illinois 60670
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
J.P. Morgan & Co.
60 Wall Street
New York, New York 10260
Liquidity Provider
Kredietbank N.V., New York Branch
125 West 55th Street
New York, New York 10019
EXHIBIT A(2)(a)
[Letterhead of Simpson Thacher & Bartlett]
[Certificate Closing Date]
To Each of the Parties named on Schedule A Hereto
Re: Federal Express Corporation Trust No. N670FE
Ladies and Gentlemen:
We have acted as special New York counsel for (i) PMCC Leasing
Corporation ("PMCC") in connection with the transactions contemplated by the
Participation Agreement (Federal Express Corporation Trust No. N670FE), dated
as of May 1, 1997 (the "Participation Agreement"), among Federal Express
Corporation, as lessee, State Street Bank and Trust Company of Connecticut,
National Association, not in its individual capacity, except as otherwise
stated, but solely as owner trustee, PMCC, as owner participant, and First
Security Bank, National Association, not in its individual capacity, except as
otherwise stated, but solely as indenture trustee, pass through trustee and
subordination agent, and (ii) Philip Morris Capital Corporation ("Philip
Morris") in connection with the transactions contemplated by the Owner
Participant Guaranty (the "Guaranty"), dated as of May 1, 1997 from Philip
Morris to each of the beneficiaries named therein. This opinion is being
furnished to you pursuant to Section 4.01(k)(ii) of the Participation
Agreement. Capitalized terms used herein and not otherwise defined herein
shall have the meanings ascribed to them in the Participation Agreement.
We have examined executed counterparts of the Participation
Agreement, the Trust Agreement, the Tax Indemnity Agreement, the Ancillary
Agreement I and the Ancillary Agreement II (collectively, the "Owner
Participant Documents") and the Guaranty. We have made such other and further
investigations as we have deemed necessary or appropriate for purposes of this
opinion. In our examination we have assumed, with your permission, and
without independent investigation or inquiry, the genuineness of all
signatures, the authenticity of all documents submitted to us as originals and
the conformity to original documents of all documents submitted to us as
certified or photocopies and the authenticity of the originals of such latter
documents.
With your permission, we have further assumed that (i) the
Owner Participant Documents and the Guaranty have been duly authorized,
executed and delivered by each of the parties thereto, (ii) the respective
parties thereto have the power and authority to execute, deliver and
perform the Owner Participant Documents and the Guaranty, (iii) the
execution, delivery and performance of the Owner Participant Documents and
the Guaranty by the parties thereto do not and will not violate the
certificate of incorporation, by-laws or other organizations documents of
any such party or any bond, debenture, note, mortgage, indenture, lease or
other agreement or instrument to which any such party is a party or by
which any such party is bound and does and will fully comply with all laws
an regulations applicable to each such party and (iv) the Owner Participant
Documents constitute valid, legal and binding obligations of the parties
thereto (other than PMCC), enforceable against such parties (other than
PMCC) in accordance with their respective terms.
Based upon the foregoing, we are of the opinion that:
1. The Participation Agreement and the Tax Indemnity Agreement
constitute valid and legally binding obligations of PMCC enforceable against
PMCC in accordance with their respective terms.
2. The Guaranty constitutes a valid and legally binding obligation
of Philip Morris enforceable against Philip Morris in accordance with its
terms.
3. The execution, delivery and performance by PMCC of the Owner
Participant Documents will not result in any violation of any Federal or New
York statute or any order, rule or regulation issued pursuant to any New York
or Federal statute by any New York or Federal Court or governmental agency or
body having jurisdiction over PMCC.
4. The execution, delivery and performance by Philip Morris of
the Guaranty will not result in any violation of any Federal or New York
statute or any order, rule or regulation issued pursuant to any New York or
Federal statute by any New York or Federal Court or governmental agency or
body having jurisdiction over Philip Morris.
5. No consent, approval, authorization, order, registration,
filing or qualification under any Federal or New York statute is required to
be obtained by PMCC for the execution, delivery and performance by PMCC of the
Owner Participant Documents.
6. No consent, approval, authorization, order, registration,
filing or qualification under any Federal or New York statute is required to
be obtained by Philip Morris for the execution, delivery and performance by
Philip Morris of the Guaranty.
Our opinions in paragraphs 1 and 2 are subject to the
effects of bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws relating to or affecting creditors'
rights generally, general equitable principles (whether considered in a
proceeding in equity or at law) and an implied covenant of good faith and
fair dealing.
We are members of the Bar of the State of New York and express
no opinion herein concerning any law other than the laws of the State of New
York.
This opinion is rendered to you in connection with the
above-described transaction. This opinion may not be relied by you for any
other purpose, or relied upon by or furnished to any other person, firm or
corporation without our prior written consent, except that the Owner
Participant may furnish a copy of this opinion to a potential transferee or
participant of the interest of such entity or otherwise as required by a
governmental authority.
Very truly yours,
Simpson Thacher & Bartlett
SCHEDULE A
Lessee
Federal Express Corporation
2007 Corporate Avenue
Memphis, Tennessee 38132
Owner Trustee
State Street Bank and Trust Company
of Connecticut, National Association
Two International Place
4th Floor
Boston, Massachusetts 02110
Indenture Trustee, Pass Through Trustee & Subordination Agent
First Security Bank, National Association
79 South Main Street
Salt Lake City, Utah 84111
Owner Participant
PMCC Leasing Corporation
200 First Stamford Place
Stamford, Connecticut 06902
Underwriters
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
First Chicago Capital Markets, Inc.
Corporate Securities
One First National Plaza
Chicago, Illinois 60670
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
J.P. Morgan & Co.
60 Wall Street
New York, New York 10260
Liquidity Provider
Kredietbank N.V., New York Branch
125 West 55th Street
New York, New York 10019
EXHIBIT A(2)(b)
[Letterhead of Philip Morris Capital Corporation]
[Certificate Closing Date]
To Each of the Parties named on Schedule A Hereto
Re: Federal Express Corporation Trust No. N670FE
Ladies and Gentlemen:
In my capacity as Assistant General Counsel and Assistant
Secretary of Philip Morris Capital Corporation, a Delaware corporation, I have
supervised corporate proceedings of (i) PMCC Leasing Corporation, a Delaware
corporation (the "Owner Participant"), in connection with the Owner
Participant's participation in the transactions contemplated by that certain
Participation Agreement (Federal Express Corporation Trust No. N670FE), dated
as of May 1, 1997 (the "Participation Agreement"), among the Owner
Participant, Federal Express Corporation, as Lessee; State Street Bank and
Trust Company of Connecticut, National Association, except as otherwise
stated, not in its individual capacity but solely as Owner Trustee; and First
Security Bank, National Association not in its individual capacity, except as
otherwise stated, but solely as Indenture Trustee, Pass Through Trustee and
Subordination Agent, and (ii) Philip Morris Capital Corporation, a Delaware
corporation (the "Guarantor"), in connection with the transactions
contemplated by the Owner Participant Guaranty (the "Guaranty"), dated as of
May 1, 1997 from Philip Morris to each of the beneficiaries named therein.
This opinion is delivered pursuant to Section 4.01(k)(ii) of the Participation
Agreement. Capitalized terms used herein but not otherwise defined herein,
shall have the respective meanings set forth in the Participation Agreement.
In connection with this opinion, I have examined originals,
or copies certified or otherwise identified to my satisfaction of the
Participation Agreement, the Trust Agreement, the Tax Indemnity Agreement,
the Ancillary Agreement I and the Ancillary Agreement II (each such
document to be hereafter referred to individually as an "Owner Participant
Document" and collectively as the "Owner Participant Documents") and the
Guaranty. I have also examined such corporate documents, records and
instruments of the Owner Participant and the Guarantor as in my judgement
are necessary or appropriate to enable me to render the opinions expressed
below. In rendering such opinions, I have relied upon the representations
and warranties contained in or made pursuant to the Owner Participant
Documents and the Guaranty and have assumed the due authorization,
execution and delivery of all documents and instruments by all parties
thereto other than the Owner Participant.
Based on the foregoing and subject to the qualifications and
matters of reliance set forth herein, I am of the opinion that:
1. The Owner Participant is a corporation duly organized,
validly existing and in good standing under the laws of the State of
Delaware, has full corporate power, authority and legal right to
carry on its business as now conducted, and is duly authorized and
empowered to execute and deliver the Owner Participant Documents and
to fulfill and comply with the terms, conditions and other provisions
thereof.
2. The Guarantor is a corporation duly organized, validly
existing and in good standing under the laws of the State of
Delaware, has full corporate power, authority and legal right to
carry on its business as now conducted, and is duly authorized and
empowered to execute and deliver the Guaranty and to fulfill and
comply with the terms, conditions and other provisions thereof.
3. The Owner Participant Documents have been duly authorized
by all necessary corporate action on the part of the Owner
Participant, and have been duly executed and delivered by the Owner
Participant.
4. The Guaranty has been duly authorized by all necessary
corporate action on the part of the Guarantor, and has been duly
executed and delivered by the Guarantor.
5. No filing with, notice to, or authorization or approval
from any governmental or public body or authority is required under
the laws of the State of New York, the laws of the United States of
America, or the General Corporation Law of the State of Delaware in
connection with the execution, delivery and performance by the Owner
Participant of the Owner Participant Documents.
6. No filing with, notice to, or authorization or approval
from any governmental or public body or authority is required under
the laws of the State of New York, the laws of the United States of
America, or the General Corporation Law of the State of Delaware in
connection with the execution, delivery and performance by the
Guarantor of the Guaranty.
7. There are no actions, suits or proceedings (whether or not
purportedly on behalf of the Owner Participant) pending or, to my
knowledge, threatened against or affecting the Owner Participant or
any property rights of the Owner Participant at law or in equity or
before any commission or other administrative agency which, either
individually or in the aggregate, could materially and adversely
affect the condition, financial or otherwise, of the Owner
Participant or its ability to perform its obligations under the Owner
Participant Documents or which would affect the legality, validity or
enforceability of such Owner Participant Documents.
8. There are no actions, suits or proceedings (whether or
not purportedly on behalf of the Guarantor) pending or, to my
knowledge, threatened against or affecting the Guarantor or any
property rights of the Guarantor at law or in equity or before any
commission or other administrative agency which, either
individually or in the aggregate, could materially and adversely
affect the condition, financial or otherwise, of the Guarantor or
its ability to perform its obligations under the Guaranty or which
would affect the legality, validity or enforceability of such
Guaranty.
9. Neither the execution and delivery of the Owner Participant
Documents, the consummation of the transactions therein contemplated
nor the fulfillment of or compliance with the terms, conditions and
other provisions thereof will conflict with, or result in any breach
of, any of the terms, conditions or provisions of (i) any law or
regulation binding upon the Owner Participant, (ii) any order,
injunction or decree of any court or governmental instrumentality
binding upon the Owner Participant, (iii) the Certificate of
Incorporation or Bylaws of the Owner Participant, or (iv) any bond,
debenture, note, mortgage indenture or other agreement or instrument
to which the Owner Participant is now a party or by which the
property of the Owner Participant may be bound.
10. Neither the execution and delivery of the Guaranty, the
consummation of the transactions therein contemplated nor the
fulfillment of or compliance with the terms, conditions and other
provisions thereof will conflict with, or result in any breach of,
any of the terms, conditions or provisions of (i) any law or
regulation binding upon the Guarantor, (ii) any order, injunction or
decree of any court or governmental instrumentality binding upon the
Guarantor, (iii) the Certificate of Incorporation or Bylaws of the
Guarantor, or (iv) any bond, debenture, note, mortgage indenture or
other agreement or instrument to which the Guarantor is now a party
or by which the property of the Guarantor may be bound.
I am a member of the bar of the State of New York, and I do
not purport to be conversant with, or to express any opinion herein
concerning, the laws of any jurisdiction other than those of the State of
New York and the United States of America and the General Corporation Law
of the State of Delaware. In addition, I express no opinion concerning the
laws of the State of New York, the United States of America or any other
jurisdiction applicable to the offering or sale of securities. Further, I
have made no investigation and express no opinion, as to any aviation law
or other laws, statutes, rules or regulations applicable due to the
particular nature of the equipment subject to the Lease.
This opinion is solely for the benefit of the addresses hereof
and their respective successors and assigns for use in connection with the
transactions contemplated by the Owner Participant Documents and may not be
relied upon by any other person or for any other purpose without my express
written consent. This opinion may be relied upon by Messrs. Simpson, Thacher
& Bartlett in rendering their opinion of even date herewith.
Very truly yours,
Nancy S. Rights
SCHEDULE A
Lessee
Federal Express Corporation
2007 Corporate Avenue
Memphis, Tennessee 38132
Owner Trustee
State Street Bank and Trust Company
of Connecticut, National Association
Two International Place
4th Floor
Boston, Massachusetts 02110
Indenture Trustee, Pass Through Trustee & Subordination Agent
First Security Bank, National Association
79 South Main Street
Salt Lake City, Utah 84111
Underwriters
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
First Chicago Capital Markets, Inc.
Corporate Securities
One First National Plaza
Chicago, Illinois 60670
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
J.P. Morgan & Co.
60 Wall Street
New York, New York 10260
Liquidity Provider
Kredietbank N.V., New York Branch
125 West 55th Street
New York, New York 10019
EXHIBIT A(3)
[Letterhead of Ray, Quinney & Nebeker]
[Certificate Closing Date]
To the Persons Listed in Schedule A Attached Hereto
Re: Federal Express Corporation Trust No. N670FE
Ladies and Gentlemen:
We have acted as special counsel to First Security Bank,
National Association, a national banking association ("First Security"), in
connection with the Participation Agreement (Federal Express Corporation
Trust No. N670FE), dated as of May 1, 1997 (the "Participation
Agreement"), among Federal Express Corporation, as Lessee, PMCC Leasing
Corporation, as Owner Participant, State Street Bank and Trust Company of
Connecticut, National Association, not in its individual capacity, except
as otherwise stated, but solely as Owner Trustee, and First Security, not
in its individual capacity, except as otherwise stated, but solely as
Indenture Trustee, Pass Through Trustee and Subordination Agent. Pursuant
to the Participation Agreement, one Airbus A300F4-605R aircraft bearing
U.S. Registration No. N670FE (the "Aircraft") is being financed. This
opinion is furnished pursuant to Section 4.01(k)(iv) of the Participation
Agreement. Capitalized terms used herein and not otherwise defined are
used as defined in the Participation Agreement, except that references
herein to any instrument shall mean such instrument as in effect on the
date hereof.
We have examined executed counterparts or copies otherwise
identified to our satisfaction of the following documents:
(a) The Participation Agreement;
(b) The Indenture;
(c) The Ancillary Agreement I;
(d) The Ancillary Agreement II:
(e) The Collateral Account Control Agreement;
(f) The Certificates; and
(g) The French Pledge Agreement;
(each of the documents identified in paragraphs (a) through (g) above are
collectively referred to as the "Indenture Trustee Documents").
We have also examined originals or copies of such other
documents, such corporate records, certificates and other statements of
governmental officials and corporate officers and other representatives of the
corporations or entities referred to herein and such other instruments as we
have deemed necessary or appropriate for the purposes of this opinion.
Moreover, as to certain facts material to the opinions expressed herein, we
have relied upon representations and warranties contained in the Indenture
Trustee Documents.
Based upon the foregoing and upon an examination of such
questions of law as we have considered necessary or appropriate, and subject
to the assumptions, exceptions and qualifications set forth below, we advise
you that, in our opinion:
1. First Security is a national banking association duly
organized and validly existing under the laws of the United States of
America holding a valid certificate to do business as a national
banking association, with banking and trust powers, and each of First
Security and the Indenture Trustee, as the case may be, has or had,
on the date of execution thereof, full corporate power, authority and
legal right to execute, deliver and perform each of the Indenture
Trustee Documents to which it is or is to be a party and to
authenticate the Certificates delivered on the Certificate Closing
Date.
2. Each of First Security and the Indenture Trustee, as the
case may be, has duly authorized, executed and delivered each
Indenture Trustee Document to which it is a party; each such document
constitutes a legal, valid and binding obligation of the Indenture
Trustee (and, to the extent set forth in the respective Indenture
Trustee Document, of First Security) enforceable against the
Indenture Trustee (and, to the extent set forth in the respective
Indenture Trustee Document, against First Security) in accordance
with its terms.
3. The Certificates issued and dated the Certificate Closing
Date have been duly authenticated and delivered by the Indenture
Trustee pursuant to the terms of the Indenture.
4. Neither the authorization, execution and delivery by the
Indenture Trustee or First Security, as the case may be, of the
Indenture Trustee Documents, nor the authentication and delivery by
the Indenture Trustee of the Certificates nor the fulfillment or
compliance by the Indenture Trustee or First Security with the
respective terms and provisions thereof nor the consummation of any
of the transactions by the Indenture Trustee or First Security, as
the case may be, contemplated thereby, requires the consent or
approval of, the giving of notice to, the registration with, or the
taking of any other action in respect of, any court or administrative
or governmental authority or agency of the State of Utah or the
United States of America governing the banking or trust powers of
First Security.
5. The execution, delivery and performance by the Indenture
Trustee or First Security, as the case may be, of each of the
Indenture Trustee Documents and the authentication and delivery of
the Certificates by the Indenture Trustee are not in violation of the
charter or by-laws of First Security or of any law, governmental
rule, or regulation of the State of Utah or the United States of
America governing the banking or trust powers of First Security or,
to our knowledge, of any indenture, mortgage, bank credit agreement,
note or bond purchase agreement, long-term lease, license or other
agreement or instrument to which it is a party or by which it is
bound or, to our knowledge, of any judgment or order of the State of
Utah or the United States of America relating to the banking or trust
powers of First Security.
6. There are no fees, taxes or other governmental charges
payable by the Owner Trustee, the Indenture Trustee (except taxes
imposed on fees payable to First Security) or the Certificate Holders
to the State of Utah or any political subdivision thereof in
connection with the execution, delivery or performance of any of the
Operative Agreements or in connection with the issuance and
acquisition of the Certificates by the Certificate Holders or the
beneficial interests of the Certificate Holders in the Trust
Indenture Estate solely because First Security) (a) is incorporated
under the laws of the State of Utah, (b) has its principal place of
business in the State of Utah, (c) performs (in its individual
capacity or as Indenture Trustee) any or all of its duties under the
Indenture Trustee Documents in the State of Utah, and (d) engages in
any activities unrelated to the transactions contemplated by the
Indenture Trustee Documents in the State of Utah. Neither the
Indenture Trustee nor the trust created under the Indenture will be
subject to any fee, tax or other governmental charge (except for
taxes imposed on fees payable to First Security) under the laws of
the State of Utah or any political subdivision thereof in existence
on the date hereof, on, based on or measured by, directly or
indirectly, the gross receipts, net income or value of the Trust
Indenture Estate solely because First Security (a) is incorporated
under the laws of the State of Utah, (b) has its principal place of
business in the State of Utah, (c) performs (in its individual
capacity or as Indenture Trustee) any or all of its duties under the
Indenture Trustee Documents in the State of Utah, and (d) engages in
any activities unrelated to the transactions contemplated by the
Indenture Trustee Documents in the State of Utah. There is no fee,
tax or other governmental charge (except for taxes imposed on fees
payable to First Security) under the laws of the State of Utah or any
political subdivision thereof in existence on the date hereof, on,
based on or measured by any payments under the Certificates by reason
of the creation of the trust under the Indenture solely because First
Security (a) is incorporated under the laws of the State of Utah, (b)
has its principal place of business in the State of Utah, (c)
performs (in its individual capacity or as Indenture Trustee) any or
all of its duties under the Indenture Trustee Documents in the State
of Utah, and (d) engages in any activities unrelated to the
transactions contemplated by the Indenture Trustee Documents in the
State of Utah. We express no opinion as to whether or not any fees,
taxes or other charges are now or hereafter may be payable by the
Owner Participant to the State of Utah or any political subdivision
thereof in connection with (a) the execution, delivery or performance
by any of the Indenture, the Participation Agreement or any of the
other Operative Agreements and (b) the making by the Owner
Participant of its investment in the Aircraft.
7. There are no actions, suits, investigations or proceedings
pending or, to our knowledge, threatened against or affecting First
Security or the Indenture Trustee, as the case may be, or any of its
properties in any court or before any administrative agency or
arbitrator, which, if adversely determined, would materially
adversely affect the ability of First Security or the Indenture
Trustee, as the case may be, to perform its obligations under any of
the Indenture Trustee Documents, and there are no pending or, to our
knowledge, threatened actions or proceedings before any court,
administrative agency or tribunal involving First Security or the
Indenture Trustee, as the case may be, in connection with the
transactions contemplated by any of the Indenture Trustee Documents.
The foregoing opinions are subject to the following
assumptions, exceptions and qualifications:
A. We are admitted to practice law in the State of Utah and we
do not hold ourselves out as being experts on the laws of any other
jurisdiction. The foregoing opinions are limited to the laws of the State of
Utah, the federal laws of the United States of America governing the banking
and trust powers of First Security and Title II of the United States Code
entitled "Bankruptcy". However, we express no opinion with respect to (i)
federal securities laws, including the Securities Act of 1933, as amended, the
Securities Exchange Act of 1934, as amended, and the Trust Indenture Act of
1939, as amended, (ii) the Federal Aviation Act of 1958, as amended and (iii)
state securities or blue sky laws. Insofar as the foregoing opinions relate
to the validity and enforceability in the State of Utah of the Certificates
and the other Indenture Trustee Documents expressed to be governed by the laws
of the State of New York, we have assumed that the laws of New York are
identical to the laws of Utah in all material respects, and that the
Certificates and such Indenture Trustee Documents constitute legal, valid,
binding and enforceable documents or instruments under such laws (as to which
we express no opinion). No opinion is expressed as to the priority of any
security interest or as to title to any part of the Trust Estate.
B. The foregoing opinions regarding enforceability of any
document or instrument, are subject to (i) applicable bankruptcy, insolvency,
moratorium, reorganization, receivership and similar laws affecting the rights
and remedies of creditors generally, and (ii) general principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or at law).
C. We have assumed the due authorization, execution and
delivery by each of the parties thereto, other than First Security and the
Indenture Trustee, of the Indenture Trustee Documents to which each is a party
and that each of such parties has the full power, authority and legal right to
execute and deliver each such document.
D. We have assumed that all signatures (other than those of
the Indenture Trustee or First Security) on documents and instruments
examined by us are genuine, that all documents and instruments submitted to
us as originals are authentic, and that all documents and instruments
submitted to us as copies conform with the originals, which facts we have
not independently verified.
E. We have assumed that the Participation Agreement and the
transactions contemplated thereby are not within the prohibitions of Section
406 of the Employee Retirement Income Security Act of 1974.
This opinion is rendered solely for your benefit and may not be
relied upon by any other person or entity for any purpose without our prior
written consent.
Very truly yours,
Ray, Quinney & Nebeker
SCHEDULE A
Lessee
Federal Express Corporation
2007 Corporate Avenue
Memphis, Tennessee 38132
Owner Trustee
State Street Bank and Trust Company
of Connecticut, National Association
Two International Place
4th Floor
Boston, Massachusetts 02110
Indenture Trustee, Pass Through Trustee & Subordination Agent
First Security Bank, National Association
79 South Main Street
Salt Lake City, Utah 84111
Owner Participant
PMCC Leasing Corporation
200 First Stamford Place
Stamford, Connecticut 06902
Underwriters
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
First Chicago Capital Markets, Inc.
Corporate Securities
One First National Plaza
Chicago, Illinois 60670
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
J.P. Morgan & Co.
60 Wall Street
New York, New York 10260
Liquidity Provider
Kredietbank N.V., New York Branch
125 West 55th Street
New York, New York 10019
EXHIBIT A(4)(a)(i)
[Letterhead of Bingham, Dana & Gould]
[Certificate Closing Date]
To Each of the Parties Listed on Schedule A Hereto
Re: Federal Express Corporation Trust No. N670FE
Ladies and Gentlemen:
We have acted as counsel to State Street Bank and Trust
Company of Connecticut, National Association, a national banking
association in its individual capacity ("State Street") and its capacity as
Owner Trustee (the "Owner Trustee") under the Trust Agreement (Federal
Express Corporation Trust No. N670FE) dated as of May 1, 1997 between
State Street and PMCC Leasing Corporation, as Owner Participant ("Owner
Participant") (the "Trust Agreement") in connection with the transactions
contemplated by that certain Participation Agreement (Federal Express
Corporation Trust No. N670FE) dated as of May 1, 1997 (the "Participation
Agreement") by and among Federal Express Corporation (the "Lessee"); the
Owner Participant; and First Security Bank, National Association, in its
individual capacity and as Indenture Trustee (the "Indenture Trustee"),
Pass Through Trustee and Subordination Agent. Except as otherwise defined
herein, all capitalized terms used herein shall have the respective
meanings set forth in, or by reference to, the Participation Agreement.
The Owner Trustee has requested that we deliver this opinion to
you in accordance with Section 4.01 of the Participation Agreement.
Our representation of State Street has been as special counsel
for the purposes stated above. As to all matters of fact (including factual
conclusions and characterizations and descriptions of purpose, intention or
other state of mind), we have relied entirely upon (i) the representations of
the parties set forth in the Operative Agreements and (ii) certificates
delivered to us by the management of State Street and have assumed, without
independent inquiry, the accuracy of those representations and certificates.
We have examined each of the Operative Agreements to which
State Street or the Owner Trustee, as applicable is a party (the "Owner
Trustee Documents"), the Certificate of the Comptroller of the Currency
relating to State Street and originals, or copies certified or otherwise
identified to our satisfaction, of such other corporate records, documents,
certificates and other instruments as we have deemed necessary or advisable
for the purposes of rendering this opinion.
We have assumed the genuineness of all signatures (other than
those on behalf of State Street and the Owner Trustee), the conformity to the
originals of all documents reviewed by us as copies, the authenticity and
completeness of all original documents reviewed by us in original or copy form
and the legal competence of each individual executing any document (other than
on behalf of State Street and the Owner Trustee).
When an opinion set forth below is given to the best of our
knowledge, or to our knowledge, or with reference to matters of which we are
aware or which are known to us, or with another similar qualification, the
relevant knowledge or awareness is limited to the actual knowledge or
awareness of the individual lawyer in the firm that signed this opinion, the
individual lawyers in the firm who have participated directly in the specific
transactions to which this opinion relates or in the preparation of this
opinion and the partner of the firm responsible for State Street corporate
trust matters, and without any special or additional investigation undertaken
for the purposes of this opinion.
Each opinion set forth below relating to the enforceability of
any agreement or instrument against State Street, the Owner Trustee or the
Owner Participant, as applicable, is subject to the following general
qualifications:
(i) as to any agreement to which State Street or the
Owner Trustee, as applicable, is a party, we assume that such
agreement is the legal, valid and binding obligation or each other
party thereto;
(ii) except as otherwise set forth in our opinions 13
and 14 below, the enforceability of any obligation of State
Street, the Owner Trustee and the Owner Participant, may be
limited by bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium, marshaling, or other similar laws and
rules of law affecting the enforcement generally of creditors'
rights and remedies (including such as may deny giving effect to
waivers of debtors' or guarantors' rights);
(iii) no opinion is given herein as to the enforceability
of any particular provision of any of the Owner Trustee Documents
relating to remedies after default or as to the availability of any
specific or equitable relief of any kind. However, we are of the
opinion that, subject to the other limitations and qualifications
contained in this opinion, the remedies provided in the Owner Trustee
Documents, taken as a whole, are adequate for the realization of the
principal benefits or security of said agreements (except for the
economic consequences of procedural or other delay); and
(iv) the enforcement of any rights and the availability
of any specific or equitable relief of any kind may in all cases be
subject to an implied duty of good faith and to general principles of
equity (regardless of whether such enforceability or relief is
considered in a proceeding at law or in equity) and, as to any of
your rights to collateral security, will be subject to a duty to act
in a commercially reasonable manner.
Subject to the limitations set forth herein, we have made
such examination of law as we have deemed necessary for the purposes of
this opinion. The opinions expressed herein are limited solely to the
internal substantive laws of the State of Connecticut and the Federal laws
of the United States of America. No opinion is expressed herein as to the
application or effect of federal securities laws or as to the securities or
so-called "Blue Sky" laws of any state or other jurisdiction. In addition,
no opinion is expressed as to matters governed by the Transportation Code,
or by any other law, statute, rule or regulation of the United States
relating to the acquisition, ownership, registration, use, operation,
maintenance, repair, replacement or sale of or the nature of the Aircraft,
Airframe or the Engines.
We have made no examination of, and no opinion is given herein
as to the Owner Trustee's or Owner Participant's title to or other ownership
rights in, or the existence of any liens, charges or encumbrances on, or
adverse claims against, any of the Indenture Estate. We express no opinion as
to the creation, attachment, perfection or priority of any mortgage, security
interest or lien in any of the Indenture Estate.
With your permission and without investigation, with respect to
paragraphs 2, 3 and 4 below in connection with our opinion relating to the
legality, validity, binding effect of the documents there referred to, to the
extent that the laws of the State of Connecticut do not govern such documents,
we have assumed that the laws of the jurisdictions whose laws govern such
documents are not materially different from the internal substantive laws of
the State of Connecticut.
In rendering our opinion in paragraphs 12 and 13 below, we have
assumed that the Owner Participant acquired its interest in the Trust Estate
for fair consideration and in good faith without any intention to hinder,
defraud or defraud or delay the Owner Participant's creditors.
This opinion is rendered solely for the benefit of those
institutions listed on Schedule A hereto and their respective successors and
assigns in connection with the transactions contemplated by the Operative
Agreements and may not be used or relied upon by any other person or for any
other purpose.
Based upon the foregoing, we are of the opinion that:
1. State Street is a national banking association duly
organized, validly existing and in good standing with the Comptroller
of the Currency under the laws of the United States of America, is a
"citizen of the United States" within the meaning of Section
40102(a)(15) of Title 49 of the United States Code, as amended and
has full corporate power, authority and legal right to execute,
deliver and perform its obligations under the Trust Agreement and, as
Owner Trustee under the Trust Agreement, to execute, deliver and
perform its obligations under the other Owner Trustee Agreements and
to issue, execute, deliver and perform its obligations under the
Certificate.
2. State Street has duly authorized, executed, and delivered
the Participation Agreement and the Trust Agreement and the
Participation Agreement and the Trust Agreement constitute the legal,
valid and binding obligation of State Street, enforceable against it
in its individual capacity in accordance with the terms thereof.
3. The Owner Trustee is duly authorized under the Trust
Agreement to execute, deliver and perform each of the Owner Trustee
Agreements and each such Owner Trustee Agreement constitutes a legal,
valid and binding obligation of the Owner Trustee enforceable against
the Owner Trustee in accordance with its terms. The Certificate has
been duly issued, executed and delivered by the Owner Trustee,
pursuant to authorization contained in the Trust Agreement, and
assuming due authentication thereof by the Indenture Trustee,
constitutes the legal, valid and binding obligation of the Owner
Trustee enforceable against the Owner Trustee in accordance with its
terms and the terms of the Indenture; and the Certificate is entitled
to the benefits and security afforded by the Indenture in accordance
with its terms and the terms of the Indenture.
4. Assuming the due authorization, execution and delivery of
the Trust Agreement by the Owner Participant and that the Owner
Participant has the requisite corporate power and authority to enter
into and perform its obligations under the Trust Agreement, said
Trust Agreement constitutes the legal, valid and binding obligation
of the Owner Participant, enforceable against the owner Participant
in accordance with the terms thereof.
5. The Trust Agreement duly creates a legal and valid trust
under Connecticut law; the trust created by the Trust Agreement
exists for the benefit of the Owner Participant as provided therein
and creates for the benefit of the Owner Participant the interest in
the Trust Estate which the Trust Agreement by its terms purports to
create, subject however to the provisions of, and the Liens created
by, the Indenture and the Lease.
6. To the extent that the Uniform Commercial Code of the State
of Connecticut (the "UCC") is applicable, except for the Indenture
Trustee's taking possession of all monies and securities (including
instruments) constituting part of the Trust Indenture Estate, no
action, including the filing or recording of any document, is
necessary (i) to create under the UCC the security interest in the
Trust Indenture Estate (including the grant and assignment unto the
Indenture Trustee of the security interest in all estate, right,
title and interest of the Owner Trustee in, to and under the Lease
and the Participation Agreement) which the Indenture by its terms
purports to create in favor of the Indenture Trustee, and (ii) to
perfect in the State of Connecticut such security interest, except
for the filing of a UCC financing statement complying with the formal
requisites of Section 9-402 of the UCC in the office of the Division
of Corporations and Commercial Code of the State of Connecticut with
respect to the security interest, which filing has been duly
effected, and the filing of continuation statements with respect
thereto required to be filed at periodic intervals under the UCC.
7. Neither the execution, delivery or performance by the Owner
Trustee, in its individual capacity or as Owner Trustee, as the case
may be, of the Certificates or the Owner Trustee Documents, the
consummation by the Owner Trustee, in its individual capacity or as
Owner Trustee, as the case may be, of any of the transactions
contemplated thereby nor the compliance by the Owner Trustee, in its
individual capacity or as Owner Trustee, as the case may be, with any
of the terms and provisions thereof (i) requires any approval of its
stockholders, any consent or approval of or the giving of notice to
any trustees or holders of any indebtedness or obligations of it
known to us, or (ii) violates its charter documents or by-laws, or
contravenes or will contravene any provision of, or constitutes a
default under, or results in any breach of, or results in the
creation of any Lien (other than as permitted under the Operative
Agreements) upon property under, any indenture, mortgage, chattel
mortgage, deed of trust, conditional sales contract, bank loan or
credit agreement, license or other agreement or instrument, in each
case, known to us to which it is a party or by which it is bound or
contravenes any Connecticut or United States applicable law governing
the banking or trust powers of the Owner Trustee, or any judgment or
order in each case, known to us applicable to or binding on it.
8. To our knowledge, there are no proceedings or actions
pending or threatened against or affecting the Owner Trustee, in its
individual capacity or as Owner Trustee, before any governmental
authority which, individually or in the aggregate, if adversely
determined, would materially and adversely affect the ability of the
Owner Trustee, in its individual capacity or as Owner Trustee, as the
case may be, to enter into or to perform its obligations under the
Owner Trustee Documents or the Certificate.
9. No consent, approval, order or authorization of, giving of
notice to, or registration with, or taking of any other action in
respect of, any Connecticut or United States governmental authority
regulating the banking or trust powers of the Owner Trustee, in its
individual capacity, is required for the execution and delivery of,
or the carrying out by, the Owner Trustee in its individual capacity
or as Owner Trustee, as the case may be, of any of the transactions
contemplated by the Owner Trustee Documents, other than any such
consent, approval, order, authorization, registration, notice or
action as has been duly obtained, given or taken.
10. There are no fees, taxes or other charges payable by the
Owner Trustee, the Trust Estate or the trust created by the Trust
Agreement imposed by the State of Connecticut or any political
subdivision or taxing authority thereof in connection with the
execution, delivery and performance by State Street, individually or
as Owner Trustee, of the Owner Trust Documents (other than franchise
or other taxes based on or measured by any fees or compensation
received by State Street, acting as the Owner Trustee, for services
rendered in connection with the transactions contemplated by the
Operative Agreements) and, assuming that the trust created by the
Trust Agreement will not be taxable as a corporation, but, rather,
will be characterized as a grantor trust under subpart E, Part I of
Subchapter J of the Internal Revenue Code of 1986, as amended, or
will be otherwise ignored for Federal tax purposes, (i) such trust
will not be subject to any fees, taxes or other charges imposed by
the State of Connecticut or any political subdivision thereof based
on income, receipts, value or otherwise, (ii) Holders that are not
residents of or otherwise subject to tax in Connecticut will not be
subject to any taxes imposed by the State of Connecticut or any
political subdivision thereof as a result of purchasing, holding
(including receiving payments with respect to) or selling a
Certificate and (iii) assuming the Owner Participant is not a
Connecticut resident or otherwise subject to tax in Connecticut and
further assuming that the assets of the trust created by the Trust
Agreement are not deemed to be located in Connecticut, the Owner
Participant will not be subject to any taxes imposed by the State of
Connecticut or any political subdivision thereof solely as a result
of being the beneficial owner of the trust created by the Trust
Agreement.
11. To our knowledge, there exist no liens or encumbrances
affecting the right, title and interest of the Owner Trustee in and
to the Trust Estate resulting from claims against State Street not
related to the ownership of the Trust Estate or any other transaction
contemplated by the Operative Agreements.
12. All the properties which are part of the Indenture Estate
(including all right, title and interest of the Owner Trustee pledged
and mortgaged by it pursuant to the Indenture) have been pledged and
mortgaged with the Indenture Trustee as part of the Indenture Estate,
and the beneficial interest of the Owner Participant under the Trust
Agreement in and to such properties is subject, to the extent
provided in the Indenture, to the liens of the Indenture in favor of
the holders from time to time of the Certificate.
13. Neither a Connecticut court nor a Federal court applying
federal law or Connecticut law, if properly presented with the issue
and after having properly considered such issue, would permit the
Owner Participant to terminate the Trust Agreement, except as
otherwise provided therein, until the Lien of the Indenture on the
Indenture Estate has been released and until payment in full of the
principal of, and premium, if any, and interest on, the Certificates
and all other sums due the holders of the Certificates has been made.
14. Under the laws of the State of Connecticut, as long as the
Trust Agreement has not been terminated in accordance with its terms,
creditors of any person that is an Owner Participant, holders of a
lien against the assets of any such person and representatives of
creditors of any such person, such as trustees, receivers or
liquidators (whether or not any insolvency proceeding has been
commenced) (collectively the "Creditors") may acquire legal, valid
and enforceable claims and liens, as to the Trust Estate, only
against the beneficial interest of such person in the Trust Estate,
and do not have, and may not through the enforcement of such
Creditors' rights acquire, any other legal, valid, and enforceable
claim or lien against the Trust Estate.
Very truly yours,
Bingham, Dana & Gould LLP
SCHEDULE A
Lessee
Federal Express Corporation
2007 Corporate Avenue
Memphis, Tennessee 38132
Owner Trustee
State Street Bank and Trust Company
of Connecticut, National Association
Two International Place
4th Floor
Boston, Massachusetts 02110
Indenture Trustee, Pass Through Trustee & Subordination Agent
First Security Bank, National Association
79 South Main Street
Salt Lake City, Utah 84111
Owner Participant
PMCC Leasing Corporation
200 First Stamford Place
Stamford, Connecticut 06902
Underwriters
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
First Chicago Capital Markets, Inc.
Corporate Securities
One First National Plaza
Chicago, Illinois 60670
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
+J.P. Morgan & Co.
60 Wall Street
New York, New York 10260
Liquidity Provider
Kredietbank N.V., New York Branch
125 West 55th Street
New York, New York 10019
[Letterhead of Bingham, Dana & Gould]
[Certificate Closing Date]
To Each of the Parties Listed on Schedule A Hereto
Re: Trust Indenture and Security Agreement (Federal Express
Corporation Trust No. N670FE) dated as of May 1, 1997 (the
"Indenture"), between First Security Bank, National Association
(the "Indenture Trustee"), and State Street Bank and Trust
Company of Connecticut, National Association, not in its
individual capacity, but solely as Owner Trustee (the "Owner
Trustee")
Ladies and Gentlemen:
We have acted as special Connecticut counsel to the Owner
Trustee in connection with the Indenture and the Collateral Account Control
Agreement dated as of May 1, 1997 (the "Control Agreement"), among the Owner
Trustee, the Indenture Trustee and State Street Bank and Trust Company, as
Custodian (the "Custodian").
We are issuing this opinion solely in our capacity as counsel
to the Owner Trustee under the circumstances set forth in this paragraph and
solely as to the matters set forth herein. Pursuant to the Indenture, the
Owner Trustee purports to grant to the Indenture Trustee a security interest,
inter alia, in those securities and instruments, presently owned or hereafter
acquired by the Owner Trustee, that are from time to time credited to an
account numbered [*****] (the "Collateral Account") established by the Owner
Trustee with the Custodian and which securities and instruments the Owner
Trustee has directed the Custodian to identify on the books and records of the
Custodian as being subject to a security interest in favor of the Indenture
Trustee to secure the payment to the Indenture Trustee of the Owner Trustee's
obligations (the "Obligations") under the Indenture. Those securities and
instruments which the Owner Trustee has directed the Custodian to so identify
on the books of the Custodian as being subject to such security interest, and
which, at the time of reference thereto, have not been withdrawn from such
identification or the Collateral Account, are hereinafter referred to,
collectively, as the "Liquid Collateral." We have assumed with your
permission for purposes of this opinion that the Liquid Collateral consists
solely of (a) "securities", either "uncertificated securities" or
"certificated securities", as each such term is defined in Section 8-102 of
the Uniform Commercial Code as currently in effect in the State of Connecticut
(the "Connecticut UCC"), (b) "instruments" (as such term is defined in Section
9-105(1)(i) of the Connecticut UCC) and (c) "general intangibles" (as such
term is defined in Section 9-106 of the Connecticut UCC).
For purposes of this opinion, we have examined the Indenture,
the Control Agreement and such other documents and instruments as are referred
to as having been examined by us for purposes of our opinion letter dated May
___,1997, addressed to the parties listed on Schedule A hereto.
As to all matters of fact, we have examined and have relied
entirely upon the representations and warranties contained in and made
pursuant to the Indenture and the Control Agreement, without any independent
investigation of any kind.
We have assumed the genuineness of all signatures (other
than those on behalf of the Owner Trustee and the Custodian), the
conformity to the originals of all documents reviewed by us as copies, the
authenticity and completeness of all original documents reviewed by us in
original or copy form, and the legal competence of each individual
executing any document (other than on behalf of the Owner Trustee and the
Custodian).
For purposes of this opinion, we have made such examination of
law as we have deemed necessary. This opinion is limited solely to the
internal substantive laws of the State of Connecticut as applied by courts
located in the State of Connecticut and, where applicable, (i) the revised
Article 8 of the Uniform Commercial Code (with Conforming and Miscellaneous
Amendments to Articles 1, 3, 4, 5, 9 and 10) 1994 Official Text (the "Revised
Article 8") and (ii) the federal laws of the United States of America, in each
case without regard to choice of law. No opinion is given as to the choice of
law which any tribunal may apply to the transactions referred to herein.
Our opinion is further subject to the following exceptions,
qualifications and assumptions, all of which we understand to be acceptable to
you:
(a) We have assumed without any independent investigation
that each party to the transactions contemplated by the Indenture or
the Control Agreement at all times relevant thereto (other than the
Owner Trustee) was duly organized, validly existing and in good
standing under the laws of the jurisdiction in which it was
incorporated or organized, and had and has the full power, authority
and legal right under its certificate of incorporation, articles of
organization and other governing documents, corporate or other
enterprise legislation and applicable laws, as the case may be, to
execute and deliver and perform its obligations under all documents
executed by it in connection with those transactions.
(b) We have assumed without any independent investigation
(i) the due authorization, execution and delivery of each of the
Indenture and the Control Agreement by the Indenture Trustee, (ii)
that the execution, delivery and performance by the Indenture
Trustee of each of the Indenture and the Control Agreement does
not and will not conflict with, or result in a breach of, the
terms, conditions or provisions of, or result in a violation of,
or constitute a default or require any consent (other than such
consents as have been duly obtained) under, any organizational
document, any order, judgment, arbitration award or stipulation,
or any agreement, to which the Indenture Trustee is a party or is
subject or by which any of the properties or assets of the
Indenture Trustee is bound, (iii) that the Owner Trustee has
received "value," as defined under the Connecticut UCC, for the
incurrence of the Obligations, (iv) that, whenever the Custodian
receives instructions from the Owner Trustee for the Custodian to
note on its books and records that any securities or instruments
credited to the Collateral Account are to be subject to a security
interest in favor of the Indenture Trustee to secure the payment
of the Obligations, such instructions will have been duly
authorized by or on behalf of the Owner Trustee and (v) that, when
the Indenture Trustee is to act in connection with any of the
transactions contemplated by the Indenture, it is acting in its
capacity as Indenture Trustee.
(c) We have made no examination of, and no opinion is given
herein as to, the Owner Trustee's title to or other ownership rights
in, or the existence of any liens, charges or encumbrances on, or
adverse claims against, the Liquid Collateral, other than the
security interest in favor of the Indenture Trustee as contemplated
by the Indenture and the Control Agreement, and have assumed that the
Owner Trustee has, or at the time of any purported attachment of the
security interest in the relevant Liquid Collateral will have, rights
in the Liquid Collateral.
(d) The perfection and the effect of perfection and
non-perfection of a security interest in the Liquid Collateral that
comprises "uncertificated securities" are, pursuant to Section
9-103(6) of the Connecticut UCC, and the effectiveness of
registration by the issuer and the rights and duties of the issuer
with respect to the registration of transfer, pledge or release of an
"uncertificated security" are, pursuant to Section 8-106 of the
Connecticut UCC, in each case, governed by the laws of the respective
jurisdictions of organization of the issuer or issuers of such
securities, including the conflict of laws rules of such
jurisdictions. Therefore, we express no opinion with respect to such
matters regarding "uncertificated securities" issued by issuers
organized outside of the State of Connecticut other than book-entry
Treasury securities referred to below.
(e) We point out that, pursuant to Part 357 of Title 31 of
the United States Code of Federal Regulations ("CFR"), with
respect to United States "book-entry Treasury securities"
maintained by a Federal Reserve Bank and, pursuant to other
relevant sections of the CFR, with respect to various other
securities issued or guaranteed by the federal government of the
United States or an agency thereof or a corporation sponsored
thereby and maintained by a Federal Reserve Bank, the perfection
of security interests granted by commercial, non-governmental
parties in book-entry Treasury securities, or such other federal
securities, as the case may be, held in a securities account of a
participant financial institution, such as the Custodian,
maintaining such account with such Federal Reserve Bank, will be
governed by the law of the jurisdiction determined in accordance
with Section 357.11 of Title 31 of the CFR. If that jurisdiction
has not adopted Revised Article 8, then such jurisdiction will be
deemed to have adopted Revised Article 8 for purposes of
determining the law governing such perfection. Accordingly,
although Revised Article 8 has not been enacted by Connecticut as
part of the Connecticut UCC, nevertheless, pursuant to Part 357 of
Title 31 of the CFR, Revised Article 8 governs the perfection of a
security interest in book-entry Treasury securities to the extent
that Connecticut law would otherwise be applicable thereto.
(f) We have also assumed that (i) any securities comprised in
the Liquid Collateral and held by Depository Trust Company or another
clearing corporation will be held by Depository Trust Company or such
other clearing corporation for the direct account of the Custodian
and not for the account of the Custodian through any other financial
intermediary, (ii) any securities comprised in the Liquid Collateral
and not constituting either (x) "certificated securities" (as defined
in Section 8-102 of the Connecticut UCC) for which the Custodian
physically holds the certificate or certificates evidencing solely
such securities, or (y) "uncertificated securities" (as defined in
Section 8-102 of the Connecticut UCC) for which the Custodian is the
registered owner on the books of the issuer solely of such
securities, will constitute, or will be held as part of, a fungible
bulk of such "securities" that are registered in the name of the
Custodian or are shown on the Custodian's account on the books of
another financial intermediary, (iii) any "certificated securities"
(as defined in Section 8-102 of the Connecticut UCC) comprised in the
Collateral, if held directly by the Custodian, will be at all times
in the physical possession of the Custodian, and any other
"instruments" (as defined in Section 9-105(1)(i) of the Connecticut
UCC) comprised in the Collateral will be at all times held directly
by and in the physical possession of the Custodian, and (iv) any
securities comprised in the Liquid Collateral consisting of
"book-entry Treasury securities" or other uncertificated federal
securities will be credited to a direct account of the Custodian with
a Reserve Bank (as such term is defined in the relevant section of
the CFR) and not for the account of the Custodian through a financial
intermediary.
(g) We do not express any opinion as to the attachment or
perfection of any security interest in (i) any securities that are
maintained with, or held on the system of, Cedel S.A., or any like
maintenance, clearing or settlement system operating outside of the
United States of America, (ii) any collateral of a type other than
"securities" or "general intangibles" (as defined in Section 9-106 of
the Connecticut UCC) or "instruments" (as defined in Section
9-105(1)(i) of the Connecticut UCC), (iii) the Collateral Account, to
the extent that the Collateral Account constitutes an asset, other
than general intangibles, separate from the property credited
thereto, (iv) any Liquid Collateral which, at the time of reference
thereto, is no longer identified as subject to a security interest
in favor of the Indenture Trustee or has otherwise been withdrawn from
the Collateral Account, or (v) any identifiable proceeds of any Liquid
Collateral (A) following the lapse of the ten day period set forth in
Section 9-306(3) of the Connecticut UCC, to the extent that such
proceeds do not constitute securities, instruments or general
intangibles in which a security interest is perfected in the manner
contemplated by this opinion, as if such proceeds were original
Liquid Collateral, (B) where such proceeds constitute securities and
in which proceeds a security interest is not perfected in the manner
contemplated by this opinion, as if such proceeds were original
collateral, or (C) where the proceeds constitute collateral which is
excluded from Article 8 or 9 of the Connecticut UCC.
(h) We express no opinion as to the priority of such security
interest over any other or competing interest in or claims against
such Liquid Collateral.
(i) We have assumed that (i) the Custodian, in the ordinary
course of business, accepts for deposit securities as a service for
its customers, maintains securities accounts in the names of such
customers reflecting ownership of or interests in such securities,
and, in regard to the transactions contemplated by the Indenture, is
acting in such capacity, (ii) all securities from time to time
credited to the Collateral Account and to be comprised in the Liquid
Collateral will have been "transferred" (within the meaning of
Section 8-313(1) of the Connecticut UCC) to the Custodian by the
issuers or prior holders of such Liquid Collateral, (iii) the records
of the Custodian indicate and will, at the time of reference thereto,
indicate that the aggregate amount of each security comprised in the
Liquid Collateral, together with all other such securities carried by
the Custodian for its customers and for its proprietary account, is
at least equal to the aggregate amount of such security carried by it
for its customers and for its proprietary account, (iv) the books and
records of the Custodian indicate and will, at the time of reference
thereto, indicate that the securities to be comprised in the Liquid
Collateral are registered on the books and records of the Custodian
as being for the beneficial account of the Owner Trustee, subject to,
as identified on such books and records, the security interest
therein in favor of the Indenture Trustee, and (v) the Custodian has
sent and, at the time of reference thereto, will have sent the
confirmations of such entries and identifications to the Indenture
Trustee and to Federal Express Corporation.
(j) In so far as our opinion relates to the enforceability
of any obligations of the Owner Trustee, the enforcement of such
obligations may be limited by bankruptcy, insolvency,
reorganization, moratorium, marshalling or other laws and rules of
law affecting the enforcement generally of creditors' rights and
remedies (including such as may deny giving effect to waivers of
debtors' or guarantors' rights); and we express no opinion as to
(i) the status under Section 548 of the Bankruptcy Code and
applicable state fraudulent conveyance laws of the obligations of
the Owner Trustee under the Indenture or interests purported to be
granted pursuant to the Indenture, (ii) the enforceability of any
particular provision of the Indenture relating to remedies after
default or as to the availability of any specific or equitable
relief of any kind (and we point out that the enforcement of any
of your rights may in all cases be subject to an implied duty of
good faith and fair dealing and to general principles of equity,
regardless of whether such enforceability is considered in a
proceeding at law or in equity, and, as to any of your rights to
collateral security, will be subject to a duty to act in a
commercially reasonable manner) or (iii) the enforceability of any
particular provision of the Indenture relating to (A) waivers of
defenses, of rights to trial by jury, or rights to object to
jurisdiction or venue and other rights or benefits bestowed by
operation of law, (B) the effect of suretyship defenses, or
defenses in the nature thereof, with respect to obligations of any
applicable guarantor, joint obligator or surety, (C) waivers of
provisions which are not capable of waiver under Sections 1-102(3)
and 9-501(3) of the Connecticut UCC, (D) the grant of powers of
attorney to the Indenture Trustee, (E) exculpation clauses,
indemnity clauses and clauses relating to releases or waivers of
unmatured claims or rights, (F) interest or other charges that may
be usurious under applicable law, or (G) the collection of
interest on overdue interest or providing for a penalty rate of
interest or late charges on overdue or defaulted obligations.
However, notwithstanding the qualification set forth in the
foregoing clause (ii), and excluding the parenthetical in that
clause, subject to the other exceptions, qualifications and
limitations set forth in this opinion (including the parenthetical
in clause (ii) and subject to the fact that there may be economic
consequences arising out of any procedural or other delay on
account of the limitation or unenforceability of any particular
provision of the Indenture relating to remedies after default,
such limitation or unenforceability does not, in our judgment,
render the provisions of the Indenture and the Control Agreement
relating to remedies after default, taken as a whole, inadequate
for the practical realization of the benefits of enforcement of a
security interest in the Liquid Collateral following the receipt
by the Custodian of an enforcement notice properly given under the
Indenture and the Control Agreement by the Indenture Trustee to
the Custodian with respect to such Liquid Collateral.
(k) With respect to property as to which the security
interest purported to be granted pursuant to the Indenture
attaches after the date hereof, we call to your attention that
Section 552 of the Bankruptcy Code limits the extent to which
assets acquired by a debtor after the commencement of a case under
the United States Bankruptcy Code may be subject to a security
interest arising from a security agreement entered into by the
debtor before the commencement of such case. We further call to
your attention that under Section 547 of the Bankruptcy Code, a
security interest that attaches within the relevant period set
forth in Section 547(b)(4) of the Bankruptcy Code may be avoidable
under certain circumstances.
Based upon and subject to the foregoing, we are of the opinion
that:
1. The Indenture Trustee has, under the terms of the
Connecticut UCC and, in the case of book-entry Treasury
securities, under the CFR, a perfected security interest in the
Liquid Collateral that constitutes "securities" (as such term is
defined in Section 8-102 of the Connecticut UCC), or "instruments"
(as defined in Section 9-105(1)(i) of the Connecticut UCC), and in
the identifiable proceeds thereof to secure the payment of the
Obligations.
2. The Indenture creates, under the terms of the Connecticut
UCC, a valid security interest in such of the Liquid Collateral that
constitutes "general intangibles" (as such term is defined in Section
9-106 of the Connecticut UCC) and in the identifiable proceeds
thereof to secure the payment of the Obligations. Upon the filing of
a financing statement on form UCC-1 pursuant to the Connecticut UCC
with the Secretary of State of the State of Connecticut naming the
Owner Trustee as Debtor and the Indenture Trustee as Secured Party
and accurately describing the Liquid Collateral and the Collateral
Account, which filing has been duly effected, such security interest
will be perfected (to the extent that the perfection of a security
interest in the Liquid Collateral can be accomplished by the filing
in Connecticut of financing statements under the Connecticut UCC).
We point out that:
(a) The effectiveness of a financing statement will lapse (i)
on the expiration of a five-year period from their dates of filing,
or (if later) five years from the last date as to which such
financing statements were effective following the proper filing of
continuation statements with respect thereto, unless continuation
statements are filed within six months prior to the expiration of the
applicable five-year period, (ii) with respect to general intangibles
in which a security interest has been perfected by the filing of a
financing statement in the jurisdiction of the location of the
debtor, for a period of more than four months after the debtor has
changed its location from that jurisdiction to a new jurisdiction
unless such security is perfected in the new jurisdiction within the
earlier to occur of the end of such four month period or the date on
which such financing statement would have otherwise lapsed, and (iii)
with respect to "investment property," under and as defined in
Revised Article 8, in which a security interest has been perfected by
the filing of a financing statement in the jurisdiction of the
location of the debtor, from the time that the debtor changes its
location from that jurisdiction to a new jurisdiction unless such
security interest is perfected in the new jurisdiction on or before
the time of such change of location.
(b) If any debtor changes its name, identity or corporate
structure such that any financing statement becomes misleading, such
financing statement will be ineffective to perfect a security
interest in any collateral acquired by such debtor more than four
months after such change.
We assume no obligation to update this opinion as a result of
any change in any fact, circumstance or statute or other rule of law
occurring after the date hereof.
This opinion is delivered to you solely in connection with the
transactions referred to herein and for your sole use and no other
person or entity may rely on this opinion without our express written
consent.
Very truly yours,
Bingham, Dana & Gould LLP
SCHEDULE A
Lessee
Federal Express Corporation
2007 Corporate Avenue
Memphis, Tennessee 38132
Owner Trustee
State Street Bank and Trust Company
of Connecticut, National Association
Two International Place
4th Floor
Boston, Massachusetts 02110
Indenture Trustee, Pass Through Trustee & Subordination Agent
First Security Bank, National Association
79 South Main Street
Salt Lake City, Utah 84111
Owner Participant
PMCC Leasing Corporation
200 First Stamford Place
Stamford, Connecticut 06902
Underwriters
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
First Chicago Capital Markets, Inc.
Corporate Securities
One First National Plaza
Chicago, Illinois 60670
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
J.P. Morgan & Co.
60 Wall Street
New York, New York 10260
Liquidity Provider
Kredietbank N.V., New York Branch
125 West 55th Street
New York, New York 10019
EXHIBIT A(4)(a)(ii)
[Letterhead of Bingham, Dana & Gould]
[Delivery Date]
To Each of the Parties Listed on Schedule A Hereto
Re: Federal Express Corporation Trust No. N670FE
Ladies and Gentlemen:
We have acted as counsel to State Street Bank and Trust
Company of Connecticut, National Association, a national banking
association in its individual capacity ("State Street") and its capacity as
Owner Trustee (the "Owner Trustee") under the Trust Agreement (Federal
Express Corporation Trust No. N670FE) dated as of May 1, 1997 between
State Street and PMCC Leasing Corporation, as Owner Participant ("Owner
Participant") (the "Trust Agreement") in connection with the transactions
contemplated by that certain Participation Agreement (Federal Express
Corporation Trust No. N670FE) dated as of May 1, 1997 (the "Participation
Agreement") by and among Federal Express Corporation (the "Lessee"); the
Owner Participant; and First Security Bank, National Association, in its
individual capacity and as Indenture Trustee (the "Indenture Trustee"),
Pass Through Trustee and Subordination Agent. Except as otherwise defined
herein, all capitalized terms used herein shall have the respective
meanings set forth in, or by reference to, the Participation Agreement.
The Owner Trustee has requested that we deliver this Opinion to
you in accordance with Section 4.02 of the Participation Agreement.
Our representation of State Street has been as special counsel
for the purposes stated above. As to all matters of fact (including factual
conclusions and characterizations and descriptions of purpose, intention or
other state of mind), we have relied entirely upon (i) the representations of
the parties set forth in the Operative Agreements and (ii) certificates
delivered to us by the management of State Street and have assumed, without
independent inquiry, the accuracy of those representations and certificates.
We have examined each of the Operative Agreements to which
State Street or the Owner Trustee, as applicable is a party (the "Owner
Trustee Documents"), the Certificate of the Comptroller of the Currency
relating to State Street and originals, or copies certified or otherwise
identified to our satisfaction, of such other corporate records, documents,
certificates and other instruments as we have deemed necessary or advisable
for the purposes of rendering this opinion.
We have assumed the genuineness of all signatures (other than
those on behalf of State Street and the Owner Trustee), the conformity to the
originals of all documents reviewed by us as copies, the authenticity and
completeness of all original documents reviewed by us in original or copy form
and the legal competence of each individual executing any document (other than
on behalf of State Street and the Owner Trustee).
When an opinion set forth below is given to the best of our
knowledge, or to our knowledge, or with reference to matters of which we are
aware or which are known to us, or with another similar qualification, the
relevant knowledge or awareness is limited to the actual knowledge or
awareness of the individual lawyer in the firm that signed this opinion, the
individual lawyers in the firm who have participated directly in the specific
transactions to which this opinion relates or in the preparation of this
opinion and the partner of the firm responsible for State Street corporate
trust matters, and without any special or additional investigation undertaken
for the purposes of this opinion.
Each opinion set forth below relating to the enforceability of
any agreement or instrument against State Street, the Owner Trustee or the
Owner Participant, as applicable, is subject to the following general
qualifications:
(i) as to any agreement to which State Street or the
Owner Trustee, as applicable, is a party, we assume that such
agreement is the legal, valid and binding obligation or each other
party thereto;
(ii) except as otherwise set forth in our opinions 13
and 14 below, the enforceability of any obligation of State
Street, the Owner Trustee and the Owner Participant, may be
limited by bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium, marshaling, or other similar laws and
rules of law affecting the enforcement generally of creditors'
rights and remedies (including such as may deny giving effect to
waivers of debtors' or guarantors' rights);
(iii) no opinion is given herein as to the
enforceability of any particular provision of any of the Owner
Trustee Documents relating to remedies after default or as to the
availability of any specific or equitable relief of any kind.
However, we are of the opinion that, subject to the other
limitations and qualifications contained in this opinion, the
remedies provided in the Owner Trustee Documents, taken as a
whole, are adequate for the realization of the principal benefits
or security of said agreements (except for the economic
consequences of procedural or other delay); and
(iv) the enforcement of any rights and the
availability of any specific or equitable relief of any kind may
in all cases be subject to an implied duty of good faith and to
general principles of equity (regardless of whether such
enforceability or relief is considered in a proceeding at law or
in equity) and, as to any of your rights to collateral security,
will be subject to a duty to act in a commercially reasonable
manner.
Subject to the limitations set forth herein, we have made
such examination of law as we have deemed necessary for the purposes of
this opinion. The opinions expressed herein are limited solely to the
internal substantive laws of the State of Connecticut and the Federal laws
of the United States of America. No opinion is expressed herein as to the
application or effect of federal securities laws or as to the securities or
so-called "Blue Sky" laws of any state or other jurisdiction. In addition,
no opinion is expressed as to matters governed by the Transportation Code,
or by any other law, statute, rule or regulation of the United States
relating to the acquisition, ownership, registration, use, operation,
maintenance, repair, replacement or sale of or the nature of the Aircraft,
Airframe or the Engines.
We have made no examination of, and no opinion is given herein
as to the Owner Trustee's or Owner Participant's title to or other ownership
rights in, or the existence of any liens, charges or encumbrances on, or
adverse claims against, any of the Indenture Estate. We express no opinion as
to the creation, attachment, perfection or priority of any mortgage, security
interest or lien in any of the Indenture Estate.
With your permission and without investigation, with respect to
paragraphs 2, 3 and 4 below in connection with our opinion relating to the
legality, validity, binding effect of the documents there referred to, to the
extent that the laws of the State of Connecticut do not govern such documents,
we have assumed that the laws of the jurisdictions whose laws govern such
documents are not materially different from the internal substantive laws of
the State of Connecticut.
In rendering our opinion in paragraphs 12 and 13 below, we have
assumed that the Owner Participant acquired its interest in the Trust Estate
for fair consideration and in good faith without any intention to hinder,
defraud or defraud or delay the Owner Participant's creditors.
This opinion is rendered solely for the benefit of those
institutions listed on Schedule A hereto and their respective successors and
assigns in connection with the transactions contemplated by the Operative
Agreements and may not be used or relied upon by any other person or for any
other purpose.
Based upon the foregoing, we are of the opinion that:
1. State Street is a national banking association duly
organized, validly existing and in good standing with the Comptroller
of the Currency under the laws of the United States of America, is a
"citizen of the United States" within the meaning of Section
40102(a)(15) of Title 49 of the United States Code, as amended and
has or had, on the date of execution thereof, full corporate power,
authority and legal right to execute, deliver and perform its
obligations under the Trust Agreement and, as Owner Trustee under the
Trust Agreement, to execute, deliver and perform its obligations
under the other Owner Trustee Agreements and to issue, execute,
deliver and perform its obligations under the Certificate.
2. State Street has or had, on the date of execution thereof,
duly authorized, executed, and delivered the Participation Agreement
and the Trust Agreement and the Participation Agreement and the Trust
Agreement constitute the legal, valid and binding obligation of State
Street, enforceable against it in its individual capacity in
accordance with the terms thereof.
3. The Owner Trustee is duly authorized under the Trust
Agreement to execute, deliver and perform each of the Owner Trustee
Agreements and each such Owner Trustee Agreement constitutes a legal,
valid and binding obligation of the Owner Trustee enforceable against
the Owner Trustee in accordance with its terms. The Certificate has
been duly issued, executed and delivered by the Owner Trustee,
pursuant to authorization contained in the Trust Agreement, and
assuming due authentication thereof by the Indenture Trustee,
constitutes the legal, valid and binding obligation of the Owner
Trustee enforceable against the Owner Trustee in accordance with its
terms and the terms of the Indenture; and the Certificate is entitled
to the benefits and security afforded by the Indenture in accordance
with its terms and the terms of the Indenture.
4. Assuming the due authorization, execution and delivery of
the Trust Agreement by the Owner Participant and that the Owner
Participant has the requisite corporate power and authority to enter
into and perform its obligations under the Trust Agreement, said
Trust Agreement constitutes the legal, valid and binding obligation
of the Owner Participant, enforceable against the owner Participant
in accordance with the terms thereof.
5. The Trust Agreement duly creates a legal and valid trust
under Connecticut law; the trust created by the Trust Agreement
exists for the benefit of the Owner Participant as provided therein
and creates for the benefit of the Owner Participant the interest in
the Trust Estate which the Trust Agreement by its terms purports to
create, subject however to the provisions of, and the Liens created
by, the Indenture and the Lease.
6. To the extent that the Uniform Commercial Code of the State
of Connecticut (the "UCC") is applicable, except for the Indenture
Trustee's taking possession of all monies and securities (including
instruments) constituting part of the Trust Indenture Estate, no
action, including the filing or recording of any document, is
necessary (i) to create under the UCC the security interest in the
Trust Indenture Estate (including the grant and assignment unto the
Indenture Trustee of the security interest in all estate, right,
title and interest of the Owner Trustee in, to and under the Lease
and the Participation Agreement) which the Indenture by its terms
purports to create in favor of the Indenture Trustee, and (ii) to
perfect in the State of Connecticut such security interest, except
for the filing of a UCC financing statement complying with the formal
requisites of Section 9-402 of the UCC in the office of the Division
of Corporations and Commercial Code of the State of Connecticut with
respect to the security interest, which filing has been duly
effected, and the filing of continuation statements with respect
thereto required to be filed at periodic intervals under the UCC.
7. Neither the execution, delivery or performance by the Owner
Trustee, in its individual capacity or as Owner Trustee, as the case
may be, of the Certificates or the Owner Trustee Documents, the
consummation by the Owner Trustee, in its individual capacity or as
Owner Trustee, as the case may be, of any of the transactions
contemplated thereby nor the compliance by the Owner Trustee, in its
individual capacity or as Owner Trustee, as the case may be, with any
of the terms and provisions thereof (i) requires any approval of its
stockholders, any consent or approval of or the giving of notice to
any trustees or holders of any indebtedness or obligations of it
known to us, or (ii) violates its charter documents or by-laws, or
contravenes or will contravene any provision of, or constitutes a
default under, or results in any breach of, or results in the
creation of any Lien (other than as permitted under the Operative
Agreements) upon property under, any indenture, mortgage, chattel
mortgage, deed of trust, conditional sales contract, bank loan or
credit agreement, license or other agreement or instrument, in each
case, known to us to which it is a party or by which it is bound or
contravenes any Connecticut or United States applicable law governing
the banking or trust powers of the Owner Trustee, or any judgment or
order in each case, known to us applicable to or binding on it.
8. To our knowledge, there are no proceedings or actions
pending or threatened against or affecting the Owner Trustee, in its
individual capacity or as Owner Trustee, before any governmental
authority which, individually or in the aggregate, if adversely
determined, would materially and adversely affect the ability of the
Owner Trustee, in its individual capacity or as Owner Trustee, as the
case may be, to enter into or to perform its obligations under the
Owner Trustee Documents or the Certificate.
9. No consent, approval, order or authorization of, giving of
notice to, or registration with, or taking of any other action in
respect of, any Connecticut or United States governmental authority
regulating the banking or trust powers of the Owner Trustee, in its
individual capacity, is required for the execution and delivery of,
or the carrying out by, the Owner Trustee in its individual capacity
or as Owner Trustee, as the case may be, of any of the transactions
contemplated by the Owner Trustee Documents, other than any such
consent, approval, order, authorization, registration, notice or
action as has been duly obtained, given or taken.
10. There are no fees, taxes or other charges payable by the
Owner Trustee, the Trust Estate or the trust created by the Trust
Agreement imposed by the State of Connecticut or any political
subdivision or taxing authority thereof in connection with the
execution, delivery and performance by State Street, individually or
as Owner Trustee, of the Owner Trust Documents (other than franchise
or other taxes based on or measured by any fees or compensation
received by State Street, acting as the Owner Trustee, for services
rendered in connection with the transactions contemplated by the
Operative Agreements) and, assuming that the trust created by the
Trust Agreement will not be taxable as a corporation, but, rather,
will be characterized as a grantor trust under subpart E, Part I of
Subchapter J of the Internal Revenue Code of 1986, as amended, or
will be otherwise ignored for Federal tax purposes, (i) such trust
will not be subject to any fees, taxes or other charges imposed by
the State of Connecticut or any political subdivision thereof based
on income, receipts, value or otherwise, (ii) Holders that are not
residents of or otherwise subject to tax in Connecticut will not be
subject to any taxes imposed by the State of Connecticut or any
political subdivision thereof as a result of purchasing, holding
(including receiving payments with respect to) or selling a
Certificate and (iii) assuming the Owner Participant is not a
Connecticut resident or otherwise subject to tax in Connecticut and
further assuming that the assets of the trust created by the Trust
Agreement are not deemed to be located in Connecticut, the Owner
Participant will not be subject to any taxes imposed by the State of
Connecticut or any political subdivision thereof solely as a result
of being the beneficial owner of the trust created by the Trust
Agreement.
11. The Owner Trustee has received such title to the Aircraft
as has been conveyed to it subject to the rights of the Owner Trustee
and the Lessee under the Lease and the security interest created
pursuant to the Indenture and the Lease; and to our knowledge, there
exist no liens or encumbrances affecting the right, title and
interest of the Owner Trustee in and to the Trust Estate resulting
from claims against State Street not related to the ownership of the
Trust Estate or any other transaction contemplated by the Operative
Agreements.
12. All the properties which are part of the Indenture Estate
(including all right, title and interest of the Owner Trustee pledged
and mortgaged by it pursuant to the Indenture) have been pledged and
mortgaged with the Indenture Trustee as part of the Indenture Estate,
and the beneficial interest of the Owner Participant under the Trust
Agreement in and to such properties is subject, to the extent
provided in the Indenture, to the liens of the Indenture in favor of
the holders from time to time of the Certificate.
13. Neither a Connecticut court nor a Federal court applying
federal law or Connecticut law, if properly presented with the issue
and after having properly considered such issue, would permit the
Owner Participant to terminate the Trust Agreement, except as
otherwise provided therein, until the Lien of the Indenture on the
Indenture Estate has been released and until payment in full of the
principal of, and premium, if any, and interest on, the Certificates
and all other sums due the holders of the Certificates has been made.
14. Under the laws of the State of Connecticut, as long as the
Trust Agreement has not been terminated in accordance with its terms,
creditors of any person that is an Owner Participant, holders of a
lien against the assets of any such person and representatives of
creditors of any such person, such as trustees, receivers or
liquidators (whether or not any insolvency proceeding has been
commenced) (collectively the "Creditors") may acquire legal, valid
and enforceable claims and liens, as to the Trust Estate, only
against the beneficial interest of such person in the Trust Estate,
and do not have, and may not through the enforcement of such
Creditors' rights acquire, any other legal, valid, and enforceable
claim or lien against the Trust Estate.
Very truly yours,
Bingham, Dana & Gould LLP
SCHEDULE A
Lessee
Federal Express Corporation
2007 Corporate Avenue
Memphis, Tennessee 38132
Owner Trustee
State Street Bank and Trust Company
of Connecticut, National Association
Two International Place
4th Floor
Boston, Massachusetts 02110
Indenture Trustee, Pass Through Trustee & Subordination Agent
First Security Bank, National Association
79 South Main Street
Salt Lake City, Utah 84111
Owner Participant
PMCC Leasing Corporation
200 First Stamford Place
Stamford, Connecticut 06902
Underwriters
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
First Chicago Capital Markets, Inc.
Corporate Securities
One First National Plaza
Chicago, Illinois 60670
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
J.P. Morgan & Co.
60 Wall Street
New York, New York 10260
Liquidity Provider
Kredietbank N.V., New York Branch
125 West 55th Street
New York, New York 10019
EXHIBIT A(5)
[Letterhead of Ray, Quinney & Nebeker]
[Certificate Closing Date]
To the Persons Listed in Schedule A Attached Hereto
Re: Federal Express Corporation Trust No. N670FE
Ladies and Gentlemen:
We have acted as special counsel to First Security Bank,
National Association, a national banking association ("First Security"), in
connection with the Pass Through Trust Agreement dated as of May 1, 1997
(the "Pass Through Trust Agreement"), as supplemented by the Series
Supplements dated the date hereof between Federal Express Corporation and
the First Security, not in its individual capacity, except as otherwise
stated, but solely as Pass Through Trustee, designated as Series Supplement
1997-1-A, 1997-1-B and 1997-1-C, respectively (the "Series Supplements")
and the Participation Agreement (Federal Express Corporation Trust No.
N670FE), dated as of May 1, 1997 (the "Participation Agreement"), among
Federal Express Corporation, as Lessee, PMCC Leasing Corporation, as Owner
Participant, State Street Bank and Trust Company of Connecticut, National
Association, not in its individual capacity, except as otherwise stated,
but solely as Owner Trustee, and First Security, not in its individual
capacity, except as otherwise stated, but solely as Indenture Trustee, Pass
Through Trustee and Subordination Agent. Pursuant to the Participation
Agreement, one Airbus A300F4-605R aircraft bearing U.S. Registration No.
N670FE (the "Aircraft") is being financed. This opinion is furnished
pursuant to Section 4.01(k)(iv) of the Participation Agreement.
Capitalized terms used herein and not otherwise defined are used as defined
in the Participation Agreement, except that references herein to any
instrument shall mean such instrument as in effect on the date hereof.
We have examined executed counterparts or copies otherwise
identified to our satisfaction of the following documents:
(a) The Pass Through Trust Agreement;
(b) The Series Supplements;
(c) The Pass Through Certificates;
(d) The Participation Agreement;
(e) The Intercreditor Agreement; and
(f) Each Liquidity Facility.
(each of the documents identified in paragraphs (a) through (e) are being
collectively referred to as the "Pass Through Trustee Documents" and each of
the documents identified in paragraphs (d) through (f) are being collectively
referred to as the "Subordination Agent Documents").
We have also examined originals or copies of such other
documents, such corporate records, certificates and other statements of
governmental officials and corporate officers and other representatives of the
corporations or entities referred to herein and such other instruments as we
have deemed necessary or appropriate for the purposes of this opinion.
Moreover, as to certain facts material to the opinions expressed herein, we
have relied upon representations and warranties contained in the Pass Through
Trustee Documents or the Subordination Agent Documents, as the case may be.
Based upon the foregoing and upon an examination of such
questions of law as we have considered necessary or appropriate, and subject
to the assumptions, exceptions and qualifications set forth below, we advise
you that, in our opinion:
With respect to the opinions set forth in paragraph 8 above,
with your permission we have relied upon, and this opinion is limited by, the
assumptions set forth in the discussion entitled "Certain Utah Taxes" in the
Prospectus Supplement to the Prospectus forming part of Registration Number
No. 333-07691 (the "Registration Statement") for the registration of the Pass
Through Certificates with the Securities and Exchange Commission. We express
no opinion as to the correctness of the foregoing assumptions and we have
conducted no independent investigation in this regard.
1. First Security is a national banking association duly
organized and validly existing under the laws of the United States of
America holding a valid certificate to do business as a national
banking association, with banking and trust powers.
2. Each of First Security, the Pass Through Trustee and the
Subordination Agent, as the case may be, has or had, on the date of
execution thereof, full corporate power, authority and legal right to
execute, deliver and perform each of the Pass Through Trustee
Documents and the Subordination Agent Documents, as the case may be,
and to authenticate the Pass Through Certificates delivered on the
Certificate Closing Date.
3. Each of First Security, the Pass Through Trustee and the
Subordination Agent has duly authorized, executed and delivered each
Pass Through Trustee Document or Subordination Agent Document, as the
case may be; each such document constitutes a legal, valid and
binding obligation of the Pass Through Trustee or the Subordination
Agent, as the case may be (and, to the extent set forth in the
respective Pass Through Trustee Document or Subordination Agent
Document, of First Security) enforceable against the Pass Through
Trustee or the Subordination Agent, as the case may be (and, to the
extent set forth in the respective Pass Through Trustee Document or
Subordination Agent Document, against First Security) in accordance
with its terms.
4. The Pass Through Certificates issued and dated the
Certificate Closing Date have been duly authorized and validly
executed, issued, delivered and authenticated by the Pass Through
Trustee pursuant to the Pass Through Trust Agreement and the Series
Supplements; and the Pass Through Certificates acquired by the
Underwriters under the Underwriting Agreement are enforceable against
the Pass Through Trustee and are entitled to the benefits of the
related Pass Through Trust Agreement and the related Series
Supplements.
5. No order, license, consent, permit, authorization or
approval of or exemption by, and no notice to or filing with, or the
taking of any other action in respect of, any Utah or Federal
governmental authority governing the banking or trust powers of First
Security, the Pass Through Trustee or the Subordination Agent, and no
filing, recording, publication or registration in any public office
is required under Utah or Federal law pertaining to its banking or
trust powers for the due execution, delivery or performance by First
Security, individually or as Pass Through Trustee or Subordination
Agent, as the case may be, of the Pass Through Trustee Documents
(other than the Pass Through Trust Agreement) or the Subordination
Agent Documents, as the case may be, and of the certificate of
authentication, as Pass Through Trustee, on the Pass Through
Certificates, or for the legality, validity, binding effect or
enforceability thereof against First Security, the Pass Through
Trustee or the Subordination Agent, as the case may be.
6. The execution, delivery and performance by the Pass
Through Trustee or First Security, as the case may be, of each of
the Pass Through Documents and the Subordination Agent or First
Security, as the case may be, of each of the Subordination Agent
Documents, and the issuance, execution, delivery and performance
of the Pass Through Certificates by the Pass Through Trustee are
not or were not, on the date of execution thereof, in violation of
the charter or by-laws of First Security or of any law,
governmental rule, or regulation of the State of Utah or the
United States of America governing the banking or trust powers of
First Security or, to our knowledge, of any indenture, mortgage,
bank credit agreement, note or bond purchase agreement, long-term
lease, license or other agreement or instrument to which it is a
party or by which it is bound or, to our knowledge, of any
judgment or order of the State of Utah or the United States of
America relating to the banking or trust powers of First Security.
7. There are no actions, suits, investigations or
proceedings pending or, to our knowledge, threatened against or
affecting First Security, the Pass Through Trustee or the
Subordination Agent or any of its properties in any court or
before any administrative agency or arbitrator, which, if
adversely determined, would materially adversely affect the
ability of First Security, the Pass Through Trustee or the
Subordination Agent, as the case may be, to perform its
obligations under any of the Pass Through Trustee Documents or the
Subordination Agent Documents, as the case may be, and there are
no pending or, to our knowledge, threatened actions or proceedings
before any court, administrative agency or tribunal involving
First Security, the Pass Through Trustee or the Subordination
Agent in connection with the transactions contemplated by any of
the Pass Through Trustee Documents or the Subordination Agent
Documents, as the case may be.
8. Neither the trusts created by the Pass Through Trust
Agreement and the Series Supplements nor the Pass Through Trustee,
in its individual or trust capacity, as the case may be, nor their
respective Affiliates, successors or assigns, will be subject to
any tax (including, without limitation, net or gross income,
tangible or intangible property, net worth, capital, franchise or
doing business tax), fee or other governmental charge under the
laws of the State of Utah or any political subdivision thereof
(other than taxes imposed on the fees received by State Street
Bank and Trust Company for acting as Pass Through Trustee under
the Series Supplements). Certificate holders who are not
residents of or otherwise subject to tax in Utah will not be
subject to any tax (including, without limitation, net or gross
income, tangible or intangible property, net worth, capital,
franchise or doing business tax), fee or other governmental charge
under the laws of the State of Utah or any political subdivision
thereof as a result of purchasing, owning (including receiving
payments with respect to) or selling a Pass Through Certificate.
There are no applicable taxes under the laws of the State of Utah
or any political subdivision thereof upon or with respect to (a)
the construction, mortgaging, financing, refinancing, purchase,
acquisition, acceptance, rejection, delivery, nondelivery,
transport, location, ownership, insurance, control, assembly,
possession, repossession, operation, use, condition, maintenance,
repair, sale, return, abandonment, replacement, preparation,
installation, storage, redelivery, manufacture, leasing,
subleasing, modification, rebuilding, importation, transfer of
title, transfer of registration, exportation or other application
or disposition of the Aircraft or any interest in any thereof, (b)
payments of Rent or other receipts, income or earnings arising
therefrom or received with respect to the Aircraft or any interest
in any thereof or payable pursuant to the Lease, (c) any amount
paid or payable pursuant to any Operative Agreements, (d) the
Aircraft or any interest therein or the applicability of the Lease
to the Aircraft or any interest in any thereof, (e) any or all of
the Operative Agreements, any or all of the Pass Through
Certificates or any interest in any or all thereof or the
offering, registration, reregistration, issuance, acquisition,
modification, assumption, reissuance, refinancing or refunding of
any or all thereof, and any other documents contemplated thereby
and amendments or supplements hereto and thereto, (f) the payment
of the principal of, or interest or premium on, or other amounts
payable with respect to, any or all of the Pass Through
Certificates, whether as originally issued or pursuant to any
refinancing, refunding, assumption, modification or reissuance, or
any other obligation evidencing any loan in replacement of the
loan evidenced by any or all of the Pass Through Certificates, or
(g) otherwise with respect to or in connection with the
transactions contemplated by the Pass Through Trust Agreement, the
Series Supplements, the Pass Through Certificates and the
Operative Agreements, which would not have been imposed if the
Pass Through Trustee had not had its principal place of business
in, had not performed (either in its individual capacity or as
Pass Through Trustee) any or all of its administrative duties
under the Pass Through Trust Agreement, the Series Supplements,
the Pass Through Certificates and the Operative Agreements in, and
had not engaged in any activities unrelated to the transactions
contemplated by the Pass Through Trust Agreement, the Series
Supplements, the Pass Through Certificates and the Operative
Agreements in, the State of Utah.
9. Each of the Certificates to be delivered to and registered
in the name of the Subordination Agent on the date hereof pursuant to
the Participation Agreement and the Intercreditor Agreement will be
held by the Subordination Agent in trust for the Pass Through Trustee
under the applicable Pass Through Trust Agreement.
Very truly yours,
Ray, Quinney & Nebeker
SCHEDULE A
Lessee
Federal Express Corporation
2007 Corporate Avenue
Memphis, Tennessee 38132
Owner Trustee
State Street Bank and Trust Company
of Connecticut, National Association
Two International Place
4th Floor
Boston, Massachusetts 02110
Indenture Trustee, Pass Through Trustee & Subordination Agent
First Security Bank, National Association
79 South Main Street
Salt Lake City, Utah 84111
Owner Participant
PMCC Leasing Corporation
200 First Stamford Place
Stamford, Connecticut 06902
Underwriters
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
First Chicago Capital Markets, Inc.
Corporate Securities
One First National Plaza
Chicago, Illinois 60670
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
J.P. Morgan & Co.
60 Wall Street
New York, New York 10260
Liquidity Provider
Kredietbank N.V., New York Branch
125 West 55th Street
New York, New York 10019
EXHIBIT A(6)(a)
[Letterhead of Kredietbank N.V.]
[Certificate Closing Date]
To Each of the Parties named on Schedule A Hereto
Re: Federal Express Corporation 1997-1
Enhanced Pass Through Certificates
Ladies and Gentlemen:
I am the manager of the Legal Department of Kredietbank N.V.
("Kredietbank") and have advised Kredietbank and its New York Branch (the
"Branch") in connection with (i) the Irrevocable Revolving Credit Agreement
Class A Certificates, dated as of May 1, 1997 (the "Class A Liquidity
Agreement"), between the Branch and First Security Bank, National
Association, a national banking association, as Subordination Agent under
the Intercreditor Agreement, defined below, and as agent and trustee for
the Federal Express Corporation Pass Through Trust 1997-1-A, (ii) the
Irrevocable Revolving Credit Agreement Class B Certificates, dated as of
May 1, 1997 (the "Class B Liquidity Agreement"), between the Branch and
First Security Bank, National Association, a national banking association,
as Subordination Agent under the Intercreditor Agreement, defined below,
and as agent and trustee for the Federal Express Corporation Pass Through
Trust 1997-1-B (the "Intercreditor Agreement" and, together with the
Liquidity Agreements, the "Liquidity Documents"), and (iii) the
Intercreditor Agreement, dated as of May 1, 1997 (the "Intercreditor
Agreement"), among the Branch, First Security Bank, National Association,
as Pass Through Trustee and as Subordination Agent (the Liquidity
Agreements and the Intercreditor Agreement are hereinafter collectively the
"Liquidity Documents").
Capitalized terms herein which are undefined have the meanings
assigned to them in the Liquidity Documents.
I am rendering this opinion in my capacity as manager of the
Legal Department and without being personally liable to any extent for the
opinions expressed herein.
In connection with the opinions hereinafter given, I have
examined a copy of each of the Liquidity Documents and such other
certificates, documents, agreements and instruments as I have deemed
necessary as a basis for the opinions expressed below.
In such examination, I have assumed the genuineness of all
signatures, the authenticity of all agreements, certificates, instruments and
documents submitted to me as originals, and the conformity to the originals of
all agreements, certificates, instruments and documents submitted to me as
copies. As to questions of fact material to the opinions expressed below, I
have, when relevant facts were not independently established by me, examined
and relied upon representations of officers of Kredietbank.
Based upon the foregoing examination and assumptions, and
subject to the qualifications set forth below, I am of the opinion that:
1. Kredietbank is duly organized and validly existing as a
Belgian public law banking institution under the law of Belgium and
has full power and authority (corporate and otherwise) to execute,
deliver and perform the Liquidity Documents.
2. [Tod Angus] or [Robert Snauffer], acting together with
[Jean Glasgow], if acting for and on behalf of the Branch, are
duly authorized by Kredietbank to execute and deliver the
Liquidity Documents for and on behalf of the Branch. Assuming
each of the Liquidity Documents has been duly executed and
delivered for and on behalf of the Branch by such persons, no
further authorization by or any corporate action of Kredietbank is
required in connection with the execution, delivery and
performance thereof.
3. The governing-law clause, subjecting the Liquidity
Documents to New York law, is valid under Belgian law.
(i) Under Belgian law, New York law will be applied to an
agreement, such as the Liquidity Documents, which under Belgian
law has been validly subjected to New York laws.
(ii) (a) None of the terms of the Liquidity Documents
is irreconcilable with important principles of Belgian law,
and (b) there are no mandatory provisions of Belgian law
which must be applied to the transactions covered by the
Liquidity Documents.
(iii) Each of the Liquidity Documents constitutes the
legal, valid and binding obligation of Kredietbank,
enforceable against Kredietbank in accordance with its
terms, the rules of civil procedures of Belgium and the
applicable provisions of the chosen law of New York.
4. No authorization, consent, approval or other action by,
and no notice to or filing with, any governmental, administrative
or other authority or court of Belgium is required for the
execution or delivery of the Liquidity Documents by Kredietbank
through the Branch or for the performance by Kredietbank or by the
Branch of the Liquidity Documents.
5. The execution, delivery and performance of the Liquidity
Documents by Kredietbank or the Branch will not result in any
violation by Kredietbank or by the Branch of any law of Belgium.
6. The contractual obligations incurred by virtue of the
execution and delivery of the Liquidity Documents for and on behalf
of the Branch are the obligations of Kredietbank, and Kredietbank has
no defenses against the performance of such obligations which are
based on the fact that Kredietbank had acted through the Branch in
executing and delivering the Liquidity Documents.
7. If a final and conclusive judgment of the Supreme Court of
the State of New York, New York County, or of the Untied States
District Court for the Southern District of New York for a definite
sum for the recovery of amounts due and unpaid under the Liquidity
Documents were to be rendered against Kredietbank, a reexamination or
relitigation on the merits of the subject matter thereof in
accordance with Article 570 of the Belgian Judicial Code would be
necessary in order to obtain recognition and/or enforcement of such
judgment in Belgium.
8. The obligations of Kredietbank under the Liquidity
Documents rank at least equal in priority of payment and in all
other respects with its obligations to pay any other unsecured and
unsubordinated obligations of Kredietbank for borrowed money,
including deposit liabilities, that are not expressly preferred by
law.
The foregoing opinions are subject to the following
qualifications:
(i) The opinion in paragraph (3) with respect to
enforceability is subject to the effect of any bankruptcy,
insolvency, reorganization, moratorium, liquidation or similar
laws affecting creditors' rights generally, applicable to
Kredietbank and to any law or general principle of law from
time to time in effect in Belgium that could be considered by
the Belgian Courts as a provision of public policy.
(ii) In giving the opinions in paragraphs (3)(iii), (6) and
(8), I have assumed, with your consent, that each of the
Liquidity Documents is legal, valid and binding under New York
law, all as set forth more fully in the opinion dated of even
date herewith of Milbank, Tweed, Hadley & McCloy issued in
connection with the Liquidity Documents.
(iii) No opinion is expressed with respect to the law of any
jurisdiction other than the law of Belgium.
This opinion is being furnished to you solely for your benefit
in connection with the transactions described above and may not be used,
circulated, quoted or otherwise referred to for any other purpose without my
express written consent.
Very truly yours,
SCHEDULE A
Lessee
Federal Express Corporation
2007 Corporate Avenue
Memphis, Tennessee 38132
Indenture Trustee, Pass Through Trustee & Subordination Agent
First Security Bank, National Association
79 South Main Street
Salt Lake City, Utah 84111
Underwriters
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
First Chicago Capital Markets, Inc.
Corporate Securities
One First National Plaza
Chicago, Illinois 60670
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
J.P. Morgan & Co.
60 Wall Street
New York, New York 10260
EXHIBIT A(6)(b)
[Letterhead of Milbank, Tweed, Hadley & McCloy]
[Certificate Closing Date]
To Each of the Parties named on Schedule A Hereto
Re: Federal Express Corporation 1997-1
Enhanced Pass Through Certificates
Ladies and Gentlemen:
We have acted as special New York counsel to Kredietbank
N.V., New York Branch (herein called the "Liquidity Provider") in
connection with the transactions contemplated by (i) the Irrevocable
Revolving Credit Agreement Class A Certificates, dated as of May 1, 1997
(the "Class A Liquidity Agreement"), between the Liquidity Provider and
First Security Bank, National Association, as Subordination Agent under the
Intercreditor Agreement, as defined below, as agent and trustee for the
Federal Express Corporation 1997-1-A Pass Through Trust, (ii) the
Irrevocable Revolving Credit Agreement Class B Certificates, dated as of
May 1, 1997 (the "Class B Liquidity Agreement" and, together with the Class
A Liquidity Agreement, the "Liquidity Agreements"), between the Liquidity
Provider and First Security Bank, National Association, as Subordination
Agent under the Intercreditor Agreement, as defined below, as agent and
trustee for the Federal Express Corporation 1997-1-B Pass Through Trust,
and (iii) the Intercreditor Agreement, dated as of May 1, 1997 (the
"Intercreditor Agreement" and, together with the Liquidity Agreements, the
"Liquidity Documents"), among the Liquidity Provider and First Security
Bank, National Association, as Pass Through Trustee and as Subordination
Agent. Capitalized terms used herein but not otherwise defined herein
shall have the meanings provided in the Liquidity Documents.
In rendering the opinion expressed below, we have examined
the Liquidity Documents, the opinion dated the date hereof of Wilfred
Kupers, Esq., manager of the Legal Department of Kredietbank N.V., and such
other documents as we have deemed necessary.
In our examination, we have assumed the authenticity of all
documents submitted to us as originals and the conformity with authentic
original documents of all documents submitted to us as copies. When relevant
facts were not independently established, we have relied upon representations
made in or pursuant to the Liquidity Documents.
In rendering the opinion expressed below, we have assumed, with
respect to each Liquidity Document, that:
(i) it has been duly authorized by, has been duly executed and
delivered by, and (except to the extent set forth in the
opinion below as to the Liquidity Provider) constitutes
legal, valid, binding and enforceable obligations of all of
the parties thereto;
(ii) all signatories thereto have been duly authorized; and
(iii) all of the parties thereto are duly organized and validly
existing and have the power and authority (corporate,
partnership, trust or other) to execute, deliver and perform
thereunder.
Based upon and subject to the foregoing and subject also to
the comments and qualifications set forth below, and having considered such
questions of law as we have deemed necessary as a basis for the opinion
expressed below, we are of the opinion that each Liquidity Document
constitutes the legal, valid and binding obligation of the Liquidity
Provider, enforceable against the Liquidity Provider in accordance with its
terms, except as may be limited by bankruptcy, insolvency, reorganization,
moratorium, fraudulent conveyance or transfer or other similar laws
relating to or affecting the rights of creditors generally and except as
the enforceability of such Liquidity Document is subject to the application
of general principles of equity (regardless of whether considered in a
proceeding in equity or at law), including, without limitation, (a) the
possible unavailability of specific performance, injunctive relief or any
other equitable remedy and (b) concepts of materiality, reasonableness,
good faith and fair dealing.
The foregoing opinion is subject to the following comments and
qualifications:
(A) The enforceability of provisions in the Liquidity
Documents to the effect that terms may not be waived or modified
except in writing may be limited under certain circumstances.
(B) We express no opinion as to (i) the effect of the laws of
any jurisdiction in which the Liquidity Provider is located (other
than New York) that limit the interest, fees or other charges the
Liquidity Provider may impose for the loan or use of money or other
credit, (ii) Section 7.11(a)(i) of each Liquidity Agreement and
Section 10.11(a)(i) of the Intercreditor Agreement, insofar as such
Sections relate to the subject matter jurisdiction of a Federal court
sitting in New York, New York to adjudicate any controversy related
to the Liquidity Documents, (iii) the waiver of inconvenient forum
set forth in Section 7.11(a)(ii) of each Liquidity Agreement and
Section 10.11(a)(ii) of the Intercreditor Agreement with respect to
proceedings in a Federal court sitting in New York, New York and a
State court of the State of New York and (iv) the waiver of immunity
set forth in Section 10.11(c) of the Intercreditor Agreement with
respect to proceedings in a Federal court sitting in New York, New
York and a State court of the State of New York.
The foregoing opinion is limited to matters involving the
Federal laws of the United States of America and the law of the State of
New York, and we do not express any opinion as to the laws of any other
jurisdiction. In particular, we do not express any opinion as to the laws
of Belgium and, to the extent such laws may be relevant to the opinion
expressed herein, we have, with your permission, relied upon the
aforementioned opinion of Wilfred Kupers, Esq., manager of the Legal
Department of Kredietbank N.V., without independently considering the
matters covered thereby, and our opinion is subject to all limitations,
exceptions and qualifications contained therein as if set forth herein in
full.
At the request of the Liquidity Provider, this opinion letter is
provided to you by us in our capacity as special New York counsel to the
Liquidity Provider, and this opinion letter may not be relied upon by any
Person for any purpose other than in connection with the transactions
contemplated by the Liquidity Documents without, in each instance, our prior
written consent.
Very truly yours,
SCHEDULE A
Lessee
Federal Express Corporation
2007 Corporate Avenue
Memphis, Tennessee 38132
Indenture Trustee, Pass Through Trustee & Subordination Agent
First Security Bank, National Association
79 South Main Street
Salt Lake City, Utah 84111
Underwriters
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
First Chicago Capital Markets, Inc.
Corporate Securities
One First National Plaza
Chicago, Illinois 60670
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
J.P. Morgan & Co.
60 Wall Street
New York, New York 10260
Liquidity Provider
Kredietbank N.V., New York Branch
125 West 55th Street
New York, New York 10019
EXHIBIT A(7)
[Letter of General Electric Company]
[Delivery Date]
To Each of the Parties named on Schedule A Hereto
Re: Federal Express Corporation Trust No. N670FE
Reference is made to (i) that certain Participation Agreement
(Federal Express Corporation Trust No. N670FE), dated as of May 1, 1997
(the "Participation Agreement") by and among Federal Express Corporation,
as Lessee ("Fed Ex"), PMCC Leasing Corporation, as Owner Participant, State
Street Bank and Trust Company of Connecticut, National Association ("SSB")
(not in its individual capacity, except as otherwise expressly set forth
therein, but solely as Owner Trustee), First Security Bank, National
Association ("FSB") (not in its individual capacity, except as otherwise
expressly set forth therein, but solely as Indenture Trustee, Pass Through
Trustee and Subordination Agent); (ii) that certain Purchase Agreement
Assignment (Federal Express Corporation Trust No. N670FE), dated as of May
1, 1997 (the "Purchase Agreement Assignment") between Fed Ex, as Lessee and
SSB, as Lessor; (iii) that certain Lease Agreement (Federal Express
Corporation Trust No. N670FE), dated as of May 1, 1997 (the "Lease")
between SSB (not in its individual capacity, but solely as Owner Trustee),
as Lessor and Fed Ex, as Lessee; (iv) that certain Trust Indenture and
Security Agreement (Federal Express Corporation Trust No. N670FE), dated
as of May 1, 1997 (the "Trust Indenture") between SSB (not in its
individual capacity), as Owner Trustee and FSB (not in its individual
capacity), as Indenture Trustee; and (v) that certain Trust Agreement
(Federal Express Corporation Trust No. N670FE), dated as of May 1, 1997
(the "Trust Agreement") between SSB (not in its individual capacity), as
Owner Trustee and PMCC Leasing Corporation, as Trustor.
I am an attorney employed by General Electric Company, a New York
corporation (the "Engine Manufacturer") and as such have acted as counsel
for the Engine Manufacturer in connection with the execution and delivery
by the Engine Manufacturer of the Consent (the "Consent"), and the Engine
Warranty Assignment (Federal Express Corporation Trust No. N670FE) (the
"Engine Warranty Assignment"), each attached to the Participation Agreement
as Exhibit F and dated as of May 1, 1997. The Consent and the Engine
Warranty Assignment covers two GE CF6-80C2-A5F series engines bearing
Engine Manufacturer's serial numbers ___-___ and ___-___, respectively. In
this connection, I have, or an attorney under my supervision has, reviewed
such documents as I have deemed necessary for the purpose of this opinion,
including, but without limiting the generality of the foregoing, the
General Terms Agreement No. 6-9034, dated as of July 3, 1991 between the
Engine Manufacturer and Fed Ex (the "General Terms Agreement"), the Engine
Product Support Plan forming a part thereof (the "Engine Product Support
Plan"), the Participation Agreement, the Purchase Agreement Assignment, the
Lease, the Trust Indenture and the Trust Agreement.
In making such examinations, I have relied upon the accuracy of
original, certified, conformed, photocopied or telecopied copies of such
records, agreements, certificates and other documents as I have deemed
necessary or appropriate to enable me to render the opinions expressed
herein. In all such examinations, I have assumed the genuineness of
signatures on original documents and the conformity to such original
documents of all copies submitted to me as certified, conformed,
photocopied or telecopied copies, and as to certificates and telegraphic
and telephonic confirmations given by public officials, I have assumed the
same to have been properly given and to be accurate. As to various
questions of fact material to such opinions, I have relied, when such
relevant facts were not independently established by me, solely upon the
accuracy of the statements, representations and warranties made in the
Participation Agreement, the Purchase Agreement Assignment, the Lease, the
Trust Indenture and the Trust Agreement.
With your consent, and for the purposes of this opinion, I have
assumed (other than with respect to the Engine Manufacturer), the accuracy of
the following matters, but I have not made any independent investigation or
inquiry with respect thereto and I render no opinion on such matters:
(a) each of the Participation Agreement, the Purchase
Agreement Assignment, the Lease, the Trust Indenture, and the Trust
Agreement have been duly and validly authorized, executed and
delivered by all parties thereto and constitutes the legal, valid and
binding obligations of each of such parties in accordance with the
respective terms thereof; and
(b) the respective parties to the Participation Agreement,
the Purchase Agreement Assignment, the Lease, the Trust Indenture,
and the Trust Agreement have obtained, and there are in full force
and effect, any and all federal, state, local or foreign
governmental agencies and authorities in connection with the
transactions contemplated thereby, to the extent necessary for the
legality, validity and binding effect or enforceability of the
Consent and the Engine Warranty Assignment.
Based upon the foregoing, and subject to the specific assumptions,
qualifications and reliances herein set forth, and on the basis of my
consideration of such facts and law as I have deemed necessary for purposes of
this letter, it is my opinion that:
(1) The Engine Manufacturer has the full corporate power,
authority and the legal right to enter into and perform its
obligations under the General Terms Agreement, the Consent and the
Engine Warranty Assignment. The execution, delivery and
performance by the Engine Manufacturer of each of the General
Terms Agreement, the Consent and the Engine Warranty Assignment
was duly authorized by all necessary corporate action on the part
of the Engine Manufacturer.
(2) Each of the General Terms Agreement, the Consent and
Engine Warranty Assignment has been duly authorized, executed and
delivered by and constitutes a legal, valid and binding obligation of
the Engine Manufacturer, enforceable against the Engine Manufacturer
in accordance with the respective terms thereof, except as the
enforceability thereof may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting the
rights of creditors generally and by general equity principles.
(3) The Engine Product Support Plan insofar as it relates to
the Engine Warranties (as such term is defined in the Engine Warranty
Assignment), constitutes a legal, valid and binding obligation of the
Engine Manufacturer, enforceable against the Engine Manufacturer in
accordance with the terms thereof, except as the enforceability
thereof may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the rights of
creditors generally and by general equity principles.
The foregoing opinions are limited to the laws of the State
of New York and the federal laws of the United States of America, but no
opinion is expressed as to matters governed by the Transportation Code, or
by any other law, statute, rule or regulation of the United States relating
to the acquisition, ownership, registration, use, operation, maintenance,
repair, replacement or sale of aircraft. Further, no opinion is expressed
as to title to any engines or other property.
This opinion is furnished by me at your request for your
sole benefit and no other person or entity shall be entitled to rely on
this opinion without our express written consent. My opinion is limited to
the matters stated herein and no opinion is implied or may be inferred
beyond the matters expressly stated herein.
Very truly yours,
David L. Lloyd, Jr.
SCHEDULE A
Lessee
Federal Express Corporation
2007 Corporate Avenue
Memphis, Tennessee 38132
Owner Trustee
State Street Bank and Trust Company
of Connecticut, National Association
Two International Place
4th Floor
Boston, Massachusetts 02110
Indenture Trustee, Pass Through Trustee & Subordination Agent
First Security Bank, National Association
79 South Main Street
Salt Lake City, Utah 84111
Owner Participant
PMCC Leasing Corporation
200 First Stamford Place
Stamford, Connecticut 06902
Underwriters
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
First Chicago Capital Markets, Inc.
Corporate Securities
One First National Plaza
Chicago, Illinois 60670
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
J.P. Morgan & Co.
60 Wall Street
New York, New York 10260
Liquidity Provider
Kredietbank N.V., New York Branch
125 West 55th Street
New York, New York 10019
EXHIBIT A(8)
[Letterhead of Clifford Chance]
[Delivery Date]
To The Opinion Addressees referred to in Schedule A hereof
Re: Federal Express Corporation Trust No. N670FE
Ladies and Gentlemen:
We are special French counsel for Airbus Industrie G.I.E.
("Airbus") and AVSA S.A.R.L. ("AVSA") and you have asked for our opinion
in connection with certain transactions contemplated in the Participation
Agreement (Federal Express Corporation Trust No. N670FE), dated as of May
1, 1997 (the "Participation Agreement") among Federal Express Corporation,
as Lessee ("Federal Express"), PMCC Leasing Corporation, as Owner
Participant ("Owner Participant"), State Street Bank and Trust Company of
Connecticut, National Association, not in its individual capacity, except
as otherwise stated, but solely as Owner Trustee ("Owner Trustee"), First
Security Bank, National Association, not in its individual capacity, except
as otherwise stated, but solely as Indenture Trustee ("Indenture Trustee"),
Pass Through Trustee and Subordination Agent, and relating to the Aircraft
to be operated by Federal Express.
This opinion is being delivered pursuant to Section 4.02(m)(x)
of the Participation Agreement.
Capitalized terms used in this opinion and not otherwise
defined shall have the meaning assigned thereto in the Participation
Agreement.
We have examined:
(i) a copy of an Airbus A300-600R Freighter Purchase Agreement
dated as of July 3, 1991 and made between AVSA and Federal
Express with an executed Consent and Guaranty of Airbus of
same date attached thereto, sent to us by facsimile by
AINA Holdings Inc. ("AINA") on April 27, 1994;
(ii) a copy sent to us by facsimile by Davis Polk & Wardwell on
_________________ of an executed Purchase Agreement
Assignment dated as of May 1, 1997 (the "Purchase
Agreement Assignment") made between Federal Express and
the Owner Trustee;
(iii) a copy sent to us by facsimile by AVSA on _________________
of an executed but undated Airbus Industrie Consent and
Agreement to the Purchase Agreement Assignment;
(iv) a copy sent to us by facsimile by AVSA on _________________
of an executed but undated AVSA Consent and Agreement to
the Purchase Agreement Assignment;
(v) a copy sent to us by facsimile by AVSA on _________________
of an executed but undated Warranty Bill of Sale, relating
to the Aircraft and transferring title therein from AVSA
to the Owner Trustee ("AVSA Warranty Bill of Sale");
(vi) a copy sent to us by facsimile by AVSA on _________________
of an executed but undated Airbus Industrie G.I.E.
Warranty, in favour of the Participants (the "Airbus
Warranty") warranting AVSA's Warranty Bill of Sale;
(vii) a copy sent to us by facsimile by AVSA on _________________
of an undated FAA Bill of Sale executed by AVSA in favour
of the Owner Trustee;
(viii) a copy sent to us by facsimile by AVSA on May 3, 1995 of an
executed power of attorney dated September 1, 1994 appointing
Messrs. John Leahy and Michel Dechelotte, acting singly, as
attorneys-in-fact of Mr. Jean Pierson, Managing Director
("Administrateur Gerant") of Airbus;
(ix) a copy sent to us by facsimile by AVSA on September 15, 1995
of an executed power of attorney dated August 16, 1995
appointing J.C Mauries as attorney-in-fact of Mr. Jean
Pierson, Managing Director ("Administrateur Gerant") of
Airbus;
(x) a copy sent to us by facsimile by AVSA on September 15, 1995
of an executed power of attorney dated August 16, 1995
appointing Xavier de Rouville as attorney-in-fact of Mr.
Jean Pierson, Managing Director ("Administrateur Gerant")
of Airbus;
(xi) a copy sent to us by courier by AVSA on September 15, 1995 of
an executed power of attorney dated August 1, 1995
appointing Ms. Michele Lascaux and Mr. Etienne O. de
Coninck, acting singly, as attorneys-in-fact of Mr.
Christophe Mourey, Chief Executive Officer ("Gerant") of
AVSA; and
(xii) a copy sent to us by courier by AVSA on September 15, 1995
of an executed power of attorney dated August 1, 1995
appointing Ms. Marie-Pierre Merle-Beral and Michele
Lascaux, Messrs. Jacques Debeaulieu, Sylvain Lebeuf,
Philippe Martin, Rainer von Borstel and Alain Rochet,
acting singly, as attorneys-in-fact of Mr. Christophe
Mourey, Chief Executive Officer ("Gerant") of AVSA.
(the documents referred to in paragraphs (i) to (xii) being referred to herein
as the "Documents").
Based on the foregoing, and such other documents, records
and other instruments as we have deemed necessary or appropriate for the
purpose of this opinion, and assuming the Documents to have been duly
executed by the parties thereto (other than Airbus and AVSA), the
genuineness of all signatures and the completeness and conformity to the
originals of all documents supplied to us as copies or as facsimiles, we
are of the opinion that, subject to the qualifications set out below:
1. Airbus is a groupement d'interet economique duly organized and
existing under the laws of the French Republic, and has the
power and authority to carry on its business as now conducted.
The present members of Airbus are (i) Aerospatiale, Societe
Nationale Industrielle, (ii) Daimler-Benz Aerospace Airbus
GmbH, (iii) British Aerospace (Operations) Ltd. and (iv)
Construcciones Aeronauticas S.A., and each of such corporations
is, without the need to proceed against any collateral security
for the indebtedness of Airbus or to take any other legal
action or process (except for service on Airbus by huissier of
notice to perform and subsequent failure by Airbus to do so),
jointly and severally liable with the other members for the
debts of Airbus arising out of obligations contracted by Airbus
while such corporation is a member of Airbus.
2. AVSA is a societe a responsabilite limitee duly established
and existing under the laws of the French Republic and has
the power and authority to carry on its business as now
conducted.
3. Each of Airbus and AVSA has full power and authority to enter
into and to execute, deliver and perform its obligations under
those of the Documents to which it is a party; such obligations
are legal, valid and binding upon them respectively, are
enforceable in accordance with their respective terms and rank
pari passu with the other unsecured obligations of Airbus or
AVSA, as the case may be.
4. All actions, authorizations, approvals, consents, conditions
and things required at law to be taken, fulfilled and done
to authorize the execution, delivery and performance by
Airbus and AVSA of those of the Documents to which they
respectively are party have been taken, obtained, fulfilled
and done; and no consents under any exchange control, laws,
rules or regulations of the French Republic are necessary in
connection therewith.
5. Neither the execution and delivery and performance of the
Documents to which Airbus and AVSA respectively are a party,
nor the consummation of the transactions contemplated
thereby, contravenes or violates any law, governmental rule
or regulation applicable to or binding on Airbus or AVSA.
6. The choice of the laws of the State of New York to govern the
Documents (which are expressed to be so governed) is valid
under the laws of the French Republic, and a French court
would uphold such choice of law in any suit on the Documents
brought in a French court.
7. Under the laws of the French Republic, Airbus and AVSA are
subject to private commercial law and to suit, and neither
Airbus nor AVSA, nor their respective properties have any
immunity from the jurisdiction of any court or any legal
process (whether through service of notice, attachment prior to
notice, attachment prior to judgment, attachment in aid of
execution, execution or otherwise), except that:
(a) to the extent that Airbus or AVSA occupies or possesses
any property by virtue of any license or grant from the
French State, such property and the title of Airbus or
AVSA thereto may be immune from suit or execution on the
grounds of sovereignty, and
(b) suit and execution against Airbus and AVSA or their
respective property may be affected by action taken by
the French public authorities in the interests of
national defence or on the occurrence of exceptional
circumstances of paramount importance to the national
interest of France, as such concept is understood
under the Constitution, laws and regulations of
France.
8. No French value added tax is due upon the transfer of title of
the Aircraft from AVSA to State Street Bank and Trust
Company of Connecticut, National Association as Owner
Trustee.
9. In connection with the obligations of Airbus and AVSA under the
Documents, this opinion must be read subject to the following
qualifications and observations as to French law:
(a) the remedy of specific performance may not be available
in a French court;
(b) the enforcement against Airbus of any of the Documents to
which it is a party may be limited by applicable
bankruptcy, insolvency, arrangement, moratorium or
similar laws relating to or affecting the enforcement of
creditors' rights generally, as such laws are applied to
Airbus. The enforcement against AVSA of any of the
Documents to which it is a party may be limited by such
laws, as such laws are applied to AVSA. The enforcement
against any member of Airbus of any obligation of Airbus
contained in the Documents may be limited by such laws,
as such laws are applied to such member;
(c) in respect of payment obligations, a French court has
power under Article 1244-1 of the French Civil Code to
grant time to a debtor (not in excess of two years),
taking into account the position of the debtor and the
needs of the creditor;
(d) in order to ensure the validity as against third parties
of the assignment made in the Purchase Agreement
Assignment, it is necessary that notice of such
assignment be served on Airbus and AVSA by "huissier" in
accordance with the provisions of Article 1690 of the
French Civil Code;
(e) in the event of any proceedings being brought in a
French court in respect of a monetary obligation
expressed to be payable in a currency other than
French Francs, a French court would probably give
judgment expressed as an order to pay, not such
currency, but its French Franc equivalent at the time
of payment or enforcement of judgment. With respect
to a bankruptcy, insolvency, liquidation, moratorium,
reorganization, reconstruction or similar proceedings,
French law may require that all claims or debts be
converted into French Francs at an exchange rate
determined by the court at a date related thereto,
such as the date of commencement of a winding-up;
(f) a determination or certificate as to any matter provided
for in the Documents might be held by a French court not
to be final, conclusive or binding, if such determination
or certificate could be shown to have an unreasonable,
incorrect or arbitrary basis or not to have been given or
made in good faith;
(g) claims may become barred by effluxion of time or may be
or become subject to defence of set-off or
counterclaim;
(h) provisions in any Document providing that it or any
other Documents may be amended or varied or any
provision thereof waived only by an instrument in
writing may not be effective;
(i) a French court may stay proceedings if concurrent
proceedings are being brought elsewhere;
(j) we express no opinion as to whether any provision in the
Documents conferring a right of set-off or similar
right would be effective against a liquidator or a
creditor; and
(k) our opinion as to the enforceability of the Documents
relates only to their enforceability in France in
circumstances where the competent French court has and
accepts jurisdiction. The term "enforceability" refers
to the legal character of the obligations assumed by the
parties under the documents, i.e., that they are of a
character which French law enforces or recognizes. It
does not mean that the Documents will be enforced in all
circumstances or in foreign jurisdictions or by or
against third parties or that any particular remedy will
be available.
(l) Article 899 of the French Tax Code provides that
agreements evidencing an undertaking to pay a sum of
money are subject to stamp tax ("droit de timbre") of a
nominal amount if made in the French Republic, if made in
a foreign country, such agreements are subject to a stamp
tax of a nominal amount before certain use thereof can be
made in the French Republic (Article 897 of the French
Tax Code). However non-payment of such stamp tax does
not affect the legality, validity or enforceability of
the agreements.
In rendering the foregoing opinions, we have assumed that the
Documents (expressed to be governed by New York law) constitute the legal,
valid and binding obligations of the parties under New York law.
We are qualified as French Avocats.
No opinion is expressed herein as to laws other than the
laws of the French Republic as of the date hereof. This opinion is for
your use and that of no one else, and is limited to (i) the matters
specifically mentioned herein, and (ii) the purpose set out above.
Very truly yours,
Clifford Chance
SCHEDULE A
Lessee
Federal Express Corporation
2007 Corporate Avenue
Memphis, Tennessee 38132
Owner Trustee
State Street Bank and Trust Company
of Connecticut, National Association
Two International Place
4th Floor
Boston, Massachusetts 02110
Indenture Trustee, Pass Through Trustee & Subordination Agent
First Security Bank, National Association
79 South Main Street
Salt Lake City, Utah 84111
Owner Participant
PMCC Leasing Corporation
200 First Stamford Place
Stamford, Connecticut 06902
Underwriters
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
First Chicago Capital Markets, Inc.
Corporate Securities
One First National Plaza
Chicago, Illinois 60670
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
J.P. Morgan & Co.
60 Wall Street
New York, New York 10260
Liquidity Provider
Kredietbank N.V., New York Branch
125 West 55th Street
New York, New York 10019
EXHIBIT A(9)
[Letterhead of Daugherty, Fowler & Peregrin]
[Delivery Date]
To the Parties Named on Schedule A attached hereto
Re: Federal Express Corporation Trust No. N670FE
Ladies and Gentlemen:
This opinion is furnished to you pursuant to Section
4.02(d)(iii) of the Participation Agreement (Federal Express Corporation
Trust No. N670FE), dated as of May 1, 1997 (the "Participation Agreement")
among Federal Express Corporation, as Lessee (the "Lessee"), PMCC Leasing
Corporation, as Owner Participant (the "Owner Participant"), State Street
Bank and Trust Company of Connecticut, National Association, not in its
individual capacity, except as otherwise stated, but solely as Owner
Trustee ("Owner Trustee"), First Security Bank, National Association, not
in its individual capacity, except as otherwise stated, but solely as
Indenture Trustee ("Indenture Trustee"), Pass Through Trustee and
Subordination Agent, with respect to that portion of Subtitle VII of Title
49 of the United States Code relative to the recordation of instruments and
the registration of aircraft thereunder.
The capitalized terms herein shall, unless otherwise
defined, have the same meanings given them in the Participation Agreement
or in Annex I attached hereto.
We have examined and filed on this date with the Federal
Aviation Administration (the "FAA") the following described instruments at
the respective times listed below:
(a) AC Form 8050-2 Aircraft Bill of Sale dated
_____________ (the "FAA Bill of Sale") from AVSA, as
seller, conveying title to the Airframe to the Owner
Trustee, which FAA Bill of Sale was filed at ____
_.m., C._.T.;
(b) AC Form 8050-1 Aircraft Registration Application dated
_____________ (the "Aircraft Registration
Application") by the Owner Trustee, as applicant,
covering the Airframe, which Aircraft Registration
Application was filed at ____ _.m., C._.T.;
(c) Affidavit of the Owner Trustee dated _____________ (the
"Owner Trustee Affidavit") pursuant to Section
47.7(c)(2)(ii) of Part 47 of the Federal Aviation
Regulations together with Affidavit of the Owner
Participant dated _____________ (the "Owner
Participant Affidavit") attached thereto, which Owner
Trustee Affidavit with the Owner Participant Affidavit
attached was filed at ____ _.m., C._.T.;
(d) executed counterpart of Trust Agreement (Federal Express
Corporation Trust No. N670FE) dated as of May 1, 1997
(the "Trust Agreement") between the Owner Participant
and the Owner Trustee, which Trust Agreement was filed
at ____ _.m., C._.T.;
(e) executed counterpart of Trust Indenture and Security
Agreement (Federal Express Corporation Trust No.
N670FE) dated as of May 1, 1997 (the "Trust
Indenture") between the Owner Trustee and the
Indenture Trustee, with executed counterpart of
Indenture and Security Agreement Supplement No. 1
(Federal Express Corporation Trust No. N670FE) dated
_____________ (the "Trust Indenture Supplement") by
the Owner Trustee, covering the Aircraft, attached
thereto, which Trust Indenture with the Trust
Indenture Supplement attached was filed at ____ _.m.,
C._.T.; and,
(f) executed counterpart of Lease Agreement (Federal Express
Corporation Trust No. N670FE) dated as of May 1, 1997
(the "Lease") between the Owner Trustee, as lessor,
and the Lessee, with executed counterparts of the
following attached thereto: (i) Lease Supplement No.
1 (Federal Express Corporation Trust No. N670FE)
dated _____________ (the "Lease Supplement") between
the Owner Trustee, as lessor, and the Lessee, covering
the Aircraft; (ii) the Trust Indenture; and (iii) the
Trust Indenture Supplement, which Lease with the
foregoing attachments (collectively, the "Lease
Attachments") attached was filed at ____ _.m., C._.T.
The Confidential Omissions were intentionally omitted from
the FAA filing counterparts of the Lease and the Trust Indenture as
containing confidential financial information.
Based upon our examination of the above described
instruments and of such records of the FAA as we deemed necessary to render
this opinion, it is our opinion that:
1. the FAA Bill of Sale, the Trust Indenture with the Trust
Indenture Supplement attached and the Lease with the
Lease Attachments attached are in due form for
recordation by and have been duly filed for
recordation with the FAA pursuant to and in accordance
with the provisions of 49 U.S.C. Section 44107;
2. the Aircraft Registration Application, the Owner Trustee
Affidavit with the Owner Participant Affidavit
attached and the Trust Agreement are in due form for
filing and have been duly filed with the FAA pursuant
to and in accordance with the provisions of 49 U.S.C.
Section 44103(a) and Section 47.7(c) of the Federal
Aviation Regulations;
3. the Airframe is eligible for registration under 49 U.S.C.
Section 44102 in the name of the Owner Trustee and the
filing with the FAA of the FAA Bill of Sale, the
Aircraft Registration Application, the Owner Trustee
Affidavit with the Owner Participant Affidavit
attached and the Trust Agreement will cause the FAA to
register the Airframe, in due course, in the name of
the Owner Trustee and to issue to the Owner Trustee an
AC Form 8050-3 Certificate of Aircraft Registration
for the Airframe, and the Airframe will be duly
registered pursuant to and in accordance with the
provisions of 49 U.S.C. Section 44103(a);
4. the Owner Trustee has valid legal title to the Airframe
and the Aircraft is free and clear of all Liens,
except (i) the security interest created by the Trust
Indenture, as supplemented by the Trust Indenture
Supplement, and (ii) the rights of the parties under
the Lease, as supplemented by the Lease Supplement;
5. the rights of the Owner Trustee and the Lessee under the
Lease, as supplemented by the Lease Supplement, with
respect to the Aircraft, are perfected;
6. the Trust Indenture, as supplemented by the Trust
Indenture Supplement, constitutes a duly perfected
first priority security interest in the Aircraft and a
duly perfected first assignment of all the right,
title and interest of the Owner Trustee in, to and
under the Lease and the Lease Supplement (insofar as
such assignment affects an interest covered by the
recording system established by the FAA pursuant to 49
U.S.C. Section 44107), and no other registration of
the Airframe or filings other than filings with the
FAA (which have been duly effected) are necessary in
order to perfect in any applicable jurisdiction in the
United States (A) the Owner Trustee's title to the
Airframe or (B) such security interest and assignment
(insofar as such assignment affects an interest
covered by the recording system established by the FAA
pursuant to 49 U.S.C. Section 44107), it being
understood that no opinion is herein expressed as to
the validity, priority or enforceability of such
security interest and assignment under local law or as
to the recognition of the perfection of such security
interest and assignment as against third parties in
any legal proceeding outside the United States;
7. no authorization, approval, consent, license or order of,
or registration with, or the giving of notice to, the
FAA is required for the valid authorization, delivery
and performance of the Lease, as supplemented by the
Lease Supplement, the Trust Indenture, as supplemented
by the Trust Indenture Supplement, or the Trust
Agreement except for such filings as are referred to
above; and,
8. neither the execution and delivery by the Owner
Participant of the Participation Agreement or the
Trust Agreement, nor other consummation of the
transactions contemplated thereby by the Owner
Participant, requires the consent or approval of, or
the giving of notice to, or the registration of, or
the taking of any other action in respect of the FAA,
except (x) the registration of the Airframe, including
the submission of the Aircraft Registration
Application, the Owner Trustee Affidavit, the Owner
Participant Affidavit and the Trust Agreement to the
FAA and (y) the filings for recordation specified
elsewhere in this opinion.
No opinion is expressed as to the Airframe during any period
or periods of time during which it has not been subject to United States
registration.
No opinion is expressed as to laws other than Federal laws
of the United States. In rendering this opinion, we were subject to the
accuracy of the FAA, its employees and agents, in the filing, indexing and
recording of instruments filed with the FAA and in the search for
encumbrance cross-reference index cards for the Engines. Further, in
rendering this opinion we are assuming the validity and enforceability of
the above described instruments under local law. Since our examination was
limited to records maintained by the FAA, our opinion does not cover liens
which are perfected without the filing of notice thereof with the FAA, such
as federal tax liens, liens arising under Section 1368(a) of Title 29 of
the United States Code, possessory artisan's liens, or matters of which the
parties had actual notice. In rendering this opinion we are assuming that
there are no documents with respect to the Aircraft which have been filed
for recording under the recording system of the FAA but have not yet been
listed in the available records of such system as having been so filed.
In rendering this opinion we have relied upon the opinion of
the Assistant Chief Counsel of the Aeronautical Center dated _____________,
a copy of which is attached hereto.
Very truly yours,
Robert M. Peregrin
For the Firm
Annex I
Certain Definitions
Airframe, Engines and Aircraft
One (1) Airbus Industrie A300F4-605R aircraft bearing
manufacturer's serial number 777 and U.S. Registration No. N670FE (the
"Airframe") and two (2) General Electric CF6-80C2-A5F aircraft engines
bearing manufacturer's serial numbers ___-___ and ___-___ (the "Engines")
(the Airframe and the Engines are referred to collectively as the
"Aircraft").
Confidential Omissions
The Lease was filed with the FAA, with (i) the Basic Rent
(Schedule II), (ii) the Stipulated Loss Values (Schedule III), (iii) the
Termination Values (Schedule IV) and (iv) the Purchase Option Schedule
(Schedule V) omitted from the FAA filing counterpart thereof as containing
confidential financial information; and (v) the purchase price under Section
4.02(a)(F) set forth in Ancillary Agreement II, which was not attached to the
FAA filing counterpart of the Lease or otherwise filed with the FAA for
recordation.
SCHEDULE A
Lessee
Federal Express Corporation
2007 Corporate Avenue
Memphis, Tennessee 38132
Owner Trustee
State Street Bank and Trust Company
of Connecticut, National Association
Two International Place
4th Floor
Boston, Massachusetts 02110
Indenture Trustee, Pass Through Trustee & Subordination Agent
First Security Bank, National Association
79 South Main Street
Salt Lake City, Utah 84111
Owner Participant
PMCC Leasing Corporation
200 First Stamford Place
Stamford, Connecticut 06902
Underwriters
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
First Chicago Capital Markets, Inc.
Corporate Securities
One First National Plaza
Chicago, Illinois 60670
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
J.P. Morgan & Co.
60 Wall Street
New York, New York 10260
Liquidity Provider
Kredietbank N.V., New York Branch
125 West 55th Street
New York, New York 10019
EXHIBIT B
[FORM OF LEASE AGREEMENT]
[See Exhibit 4.e]
EXHIBIT C
[FORM OF INDENTURE]
[See Exhibit 4.b.1]
EXHIBIT D
[FORM OF TRUST AGREEMENT]
[See Exhibit 4.d]
EXHIBIT E
[FORM OF PURCHASE AGREEMENT ASSIGNMENT, AIRBUS CONSENT AND
AVSA CONSENT]
[See Exhibit B to Lease Agreement under Exhibit 4.e]
EXHIBIT F
[FORM OF ENGINE WARRANTY ASSIGNMENT AND ENGINE CONSENT]
[See Exhibit C to Lease Agreement under Exhibit 4.e]
EXHIBIT G-1
FORM OF ASSIGNMENT AND ASSUMPTION AGREEMENT
BENEFICIAL INTEREST TRANSFER AGREEMENT (this "Document"),
dated as of _______ __, ____, between ______________, a ______________
corporation ("Transferor") and ______________, a ______________ corporation
("Transferee").
W I T N E S S E T H :
WHEREAS, the parties hereto desire to effect (a) the
transfer by Transferor to Transferee of all of the rights, title and interest
of Transferor in and to its interest (the "Beneficial Interest") under the
Trust Agreement (Federal Express Corporation Trust No. N670FE), dated as of
May 1, 1997 (as heretofore amended, the "Trust Agreement"), between Transferor
and State Street Bank and Trust Company of Connecticut, National Association,
and the Lessor's Estate created thereunder, and all of Transferor's rights and
obligations under the Participation Agreement (Federal Express Corporation
Trust No. N670FE), dated as of May 1, 1997 (the "Participation Agreement"),
among Federal Express Corporation, as Lessee, State Street Bank and Trust
Company of Connecticut, National Association, not in its individual capacity,
except as otherwise stated therein, but solely as Owner Trustee, PMCC Leasing
Corporation, as Owner Participant, First Security Bank, National Association,
not in its individual capacity, except as otherwise stated therein, but solely
as Indenture Trustee, First Security Bank, National Association, not in its
individual capacity, except as otherwise stated therein, but solely as Pass
Through Trustee and First Security Bank, National Association, as
Subordination Agent, and under the other Operative Agreements and (b) the
acceptance by Transferee of such transfer and the assumption by Transferee of
such obligations of Transferor thereunder; and
WHEREAS, Section 7.03(d) of the Participation Agreement
permits such transfer and assumption upon satisfaction of certain conditions
heretofore or concurrently herewith being observed;
NOW, THEREFORE, in consideration of the premises and of
the mutual covenants and agreements herein contained, the parties hereto agree
as follows:
1. Definitions. Capitalized terms used herein without
definition shall have the respective meanings ascribed thereto in the
Participation Agreement.
2. Transfer. Transferor does hereby sell, convey,
assign, transfer and set over, unto Transferee, as of the Effective Time (as
defined below), all of Transferor's present and future right, title and
interest in and to (a) all of the Beneficial Interest and (b) all of the Owner
Participant's rights and obligations under the Participation Agreement, the
Tax Indemnity Agreement, the Trust Agreement and the other Operative
Agreements and any proceeds therefrom, together with all other documents and
instruments evidencing any of such right, title and interest, except such
rights of Transferor as have arisen or accrued to Transferor prior to the
Effective Time (including without limitation, the right to receive any amounts
due or accrued to Transferor under the Operative Agreements as of a time prior
to the Effective Time and the right to receive any indemnity payment pursuant
to the Participation Agreement or the Tax Indemnity Agreement, with respect to
events occurring prior to such time); all of the foregoing that is being
transferred under this paragraph 2, the "Transferred Interest".
3. Assumption. Transferee hereby accepts the transfer
of the Transferred Interest and, for the benefit of Transferor and the other
parties to the Participation Agreement, assumes and undertakes and agrees to
perform and discharge all of the duties and obligations of Transferor with
respect to the Transferred Interest whenever and wherever accrued (other than
duties and obligations of Transferor required to be performed by it on or
prior to the Effective Time). Transferee hereby confirms that, from and after
the Effective Time, Transferee (a) shall be deemed, to the extent set forth in
Section 2 hereof, the "Owner Participant" party to the Participation
Agreement, the Tax Indemnity Agreement, the Trust Agreement and the other
Operative Agreements and (b) shall be bound by all of the terms of the
Operative Agreements to the extent the same relate to the Transferred
Interest.
4. Release of Transferor. At the Effective Time,
Transferor shall be relieved of all of its duties and obligations with respect
to the Transferred Interest under the Operative Agreements, provided, however,
that Transferor shall in no event be released from any such duty or
obligations arising or relating to any event occurring prior to the Effective
Time, or on account of any breach by Transferor of any of its representations,
warranties, covenants or obligations set forth in the Operative Agreements, or
for any fraudulent or willful misconduct engaged in by it prior to the
Effective Time, or from any obligation that relates to any indemnity claimed
by Transferor or any Lessor's Lien attributable to Transferor.
5. Fees and Expenses. The fees, expenses and charges
of the parties to the Participation Agreement incurred in connection with the
transfer effected hereby shall be for the account of [specify
Transferor/Transferee].
6. Payments. Transferor hereby covenants and agrees
to pay over to Transferee, if and when received following the Effective
Time, any amounts (including any sums payable as interest in respect
thereof) paid on account of the Transferred Interest to or for the benefit
of Transferor, and Transferee hereby covenants and agrees to pay over to
Transferor, if and when received following the Effective Time, any amounts
(including any sums payable as interest in respect thereof) paid to or for
the benefit of Transferee that are not attributable to the Transferred
Interest and to which Transferor is otherwise entitled.
7. Investment Purpose. Transferee hereby represents
and warrants that, as of the date hereof, it is acquiring the Transferred
Interest for its account with no present intention of distributing such
Transferred Interest or any part thereof in any manner which would violate
the Securities Act of 1933, as amended, but without prejudice, however, to
the right of Transferee at all times to sell or otherwise dispose of all or
any part of such Transferred Interest in compliance with Section 7.03(d) of
the Participation Agreement.
8. Representations and Warranties of Transferor.
Transferor represents and warrants to Transferee that as of the Effective
Time:
(a) Organization and Power. Transferor is a corporation
duly organized, validly existing and in good standing under the
laws of the State of Delaware and has full corporate power,
authority and legal right to execute, deliver and perform this
Agreement and to enter into and carry out the transactions
contemplated hereby and in the other Operative Agreements (the
"Transactions").
(b) Authorization, Execution and Validity. This Agreement
has been duly authorized, executed and delivered by Transferor and
constitutes the legal, valid and binding obligation of Transferor,
enforceable against it in accordance with its terms except as
enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the rights of
creditors generally and by general principles of equity.
(c) Conflict. The execution, delivery and performance by
Transferor of this Agreement and compliance by Transferor with all
of the provisions hereof do not contravene any regulation or any
order of any governmental authority applicable to or binding on
Transferor, or contravene the provisions, or constitute a default
by Transferor under, its certificate of incorporation or by-laws
or any indenture, mortgage, contract or other agreement or
instrument to which Transferor is a party or by which Transferor
or any of its Properties is bound or affected.
(d) Consents. No consent, approval or authorization of, or
filing, registration or qualification with, or the giving of
notice or the taking of any other action with respect to, any
governmental authority on the part of Transferor is required in
connection with the execution, delivery and performance by
Transferor of this Agreement.
(e) Litigation. There are no proceedings pending or, to
the knowledge of Transferor, threatened against Transferor before
any governmental authority that would materially and adversely
affect the ability of Transferor to consummate the Transactions.
(f) No Liens. The Trust Estate is free of Lessor's Liens
attributable to Transferor.
(g) Compliance with Operative Agreements. Transferor has
fully performed all of its obligations under the Participation
Agreement and under each other Operative Agreement which
obligations by their terms are required to be satisfied or
performed prior to the Effective Time or prior to the consummation
of the Transactions.
(h) Default. As a result of the transfer effected hereby,
no Indenture Default attributable to the Owner Participant or the
Owner Trustee has occurred and is continuing.
Notwithstanding the foregoing or anything else contained in
this Agreement, it makes no representation or warranty in this Agreement
with respect to laws, rules or regulations relating to aviation or to the
nature or use of the equipment owned by the Owner Trustee, including,
without limitation, the airworthiness, value, condition, workmanship,
design, patent or trademark infringement, operation, merchantability or
fitness for use of the Aircraft.
9. Representations and Warranties of Transferee.
Transferee represents and warrants to Transferor and to the other parties
to the Participation Agreement that as of the Effective Time:
(a) Transferee is a corporation duly organized, validly
existing and in good standing under the laws of the State of [ ],
has the full corporate power, authority and legal right to carry
on its business as now conducted, and has full corporate power,
authority and legal right to execute, deliver and perform this
Agreement and to enter into and carry out the transactions
contemplated hereby and in the other Operative Agreements (the
"Transactions");
(b) Transferee has full corporate power, authority and
legal right to execute, deliver and enter into this Agreement and
the other Operative Agreements and full corporate power and
authority to perform its obligations thereunder, and such
execution, delivery and performance do not and will not contravene
any applicable law or any order of any governmental authority
applicable to or binding on the Transferee, or contravene the
provisions of, or constitute a default under, or result in the
creation of any Lien upon the property of the Transferee under,
its articles of incorporation or by-laws or any material
indenture, mortgage, contract or other agreement or instrument to
which the Transferee is a party or by which it or any of its
property may be bound or affected;
(c) the execution, delivery and performance of this
Agreement by the Transferee (i) has been duly authorized by all
necessary corporate action and (ii) does not require any approval
of the shareholders of the Transferee or any approval or consent
of, or notice to, any trustee or holders of any indebtedness or
obligation of the Transferee, except for such approvals and
consents as have already been obtained;
(d) this Agreement has been duly executed and delivered by
the Transferee, and constitutes the legal, valid and binding
obligation of the Transferee, enforceable against the Transferee
in accordance with its terms, except as the same may be limited by
bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting the rights of creditors generally and by general
principles of equity;
(e) there are no proceedings or actions pending or, to the
knowledge of the Transferee, threatened against the Transferee
before any governmental authority in which there is a reasonable
probability of an adverse determination that individually or in
the aggregate would materially and adversely impair the ability of
the Transferee to perform its obligations under this Agreement or
the Operative Agreements, or which involve the Transactions or
question the validity of any Operative Agreement to which the
Owner Participant is a party or any action taken or to be taken
pursuant thereto; and the Transferee is not in default with
respect to any order of any governmental authority which involves
the Transactions or the default under which would materially and
adversely affect the ability of the Transferee to perform its
obligations under this Agreement or any of the Operative
Agreements;
(f) no consent, approval, order or authorization of, giving
of notice to, or registration with, or taking of any other action
in respect of, any governmental authority is required under any
law for the execution and delivery by the Transferee of this
Agreement, or the carrying out by the Transferee of any of the
Transactions, other than any such consent, approval, order,
authorization, registration, notice or action as has been duly
obtained, given or taken;
(g) the Lessor's Estate is free of any Lessor's Liens
attributable to the Transferee;
(h) the Transferee, upon execution of this Agreement, will
not be in default under any of the Operative Agreements;
(i) no part of the funds to be used by it to acquire the
interests acquired by the Owner Participant under the
Participation Agreement constitutes assets (within the meaning of
ERISA and any applicable rules and regulations) of any employee
benefit plan subject to Title I of ERISA or of any plan or
individual retirement account subject to Section 4975 of the Code;
(j) Transferee is a "U.S. Person" as defined in Section
7701(a)(30) of the Code and is not a tax resident of another
country and if it shall at any time cease to be such a "U.S.
Person" or shall become a tax resident of another country, it
shall furnish to the Agent and each Certificate Holder an
indemnity, in form and substance reasonably satisfactory to such
Certificate Holder, for any Taxes that may be imposed on such
Holder as a result of its failure to be such a "U.S. Person" or
as a result of its being a tax resident of another country, and it
shall be personally liable for any debt service to the extent that
the receipt of rentals is reduced by reason of any withholding
Taxes that result from such failure to be such a "U.S. Person" or
from being a tax resident of another country;
(k) [After giving effect to a voting trust or similar
agreement(*), Transferee is a Citizen of the United States]
[applicable if Aircraft is registered in the United States or is
proposed to be so registered]
- ------------
(*) Such voting trust or similar agreement must be reasonably satisfactory
to the Lessor and the Indenture Trustee.
(l) On and as of the Effective Date, the representations
and warranties of the Owner Participant in Article 7 of the
Participation Agreement are true and correct as to the Transferee;
and
(m) Transferee satisfies the conditions applicable to a
transferee of the Beneficial Interest set forth in Section 7.03(d)
of the Participation Agreement, including without limitation, the
condition set forth in the last sentence thereof [and to the
extent the same has been requested by the Lessee or the Indenture
Trustee, Transferee has heretofore provided to the Lessee and the
Indenture Trustee its most recent audited financial statements,
which show a consolidated tangible net worth or combined capital
and surplus of at least $75,000,000] [remove bracketed language if
an Owner Participant Guaranty is provided].
(n) the Transferee has, independently and without reliance
upon any other party (including without limitation the Transferor)
and based on such documents and information as it has deemed
appropriate, made its own credit analysis and decision to enter
into this Agreement, and the Transferee has established adequate
means of obtaining from Lessee on a continuing basis information
pertaining to, and is now and on a continuing basis will be
completely familiar with, the financial condition, operations,
properties and prospects of Lessee.
Notwithstanding the foregoing or anything else contained in
this Agreement, it makes no representation or warranty in this Agreement
with respect to laws, rules or regulations relating to aviation or to the
nature or use of the equipment owned by the Owner Trustee, including,
without limitation, the airworthiness, value, condition, workmanship,
design, patent or trademark infringement, operation, merchantability or
fitness for use of the Aircraft, other than such laws, rules or regulations
relating to the citizenship requirements of it under applicable aviation
law.
10. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. 11.
Effectiveness. This Agreement shall be effective upon the mutual execution
and delivery of this Agreement (the "Effective Time").
12. Counterparts. This Agreement may be executed in
any number of counterparts, all of which together shall constitute a single
instrument. It shall not be necessary that any counterpart be signed by
both parties so long as each party shall sign at least one counterpart.
13. Beneficiaries. Each of the Owner Trustee, the
Indenture Trustee, the Pass Through Trustee and the Lessee, together with
their respective successors and permitted assigns, is and shall be deemed a
third party beneficiary of this Agreement entitled to enforce this
Agreement directly and in its own name and enforce any rights or claims of
the parties hereto.
14. Further Assurances. Each party agrees that from
time to time after the Effective Time, it shall execute and deliver or
cause to be executed and delivered such instruments, documents and papers,
and take all such further action as may be reasonably required in order to
consummate fully the purposes of this Agreement and to implement the
transactions contemplated hereby.
IN WITNESS WHEREOF, the parties hereto have executed
this Agreement as of the day and year first above written.
[TRANSFEROR]
By:___________________________
Name:
Title:
[TRANSFEREE]
By:___________________________
Name:
Title:
EXHIBIT G-2
FORM OF OWNER PARTICIPANT GUARANTY
TRANSFEREE'S PARENT GUARANTY, dated as of ___________
__, ____, (this "Guaranty") by ____________________, a ___________
corporation (the "Guarantor"), to State Street Bank and Trust Company of
Connecticut, National Association, in its individual capacity and as Owner
Trustee, First Security Bank, National Association, as Indenture Trustee
and Pass Through Trustee, and Federal Express Corporation, as Lessee
(collectively, together with their successors and assigns and the holders
from time to time of the Certificates, the "Beneficiaries").
W I T N E S S E T H :
WHEREAS, ___________, a ____________ corporation (the
"Transferor"), is party to the Participation Agreement (Federal Express
Corporation Trust No. N670FE), dated as of May 1, 1997 (as amended,
modified or supplemented from time to time, the "Participation Agreement"),
among Federal Express Corporation, as Lessee, PMCC Leasing Corporation, as
Owner Participant, State Street Bank and Trust Company of Connecticut,
National Association, not in its individual, except as otherwise stated
therein, but solely as Owner Trustee, First Security Bank, National
Association, not in its individual, except as otherwise stated therein, but
solely as Indenture Trustee, First Security Bank, National Association, not
in its individual, except as otherwise stated therein, but solely as Pass
Through Trustee and First Security Bank, National Association, as
Subordination Agent; and
WHEREAS, the Transferor wishes to transfer, among
other things, all of the rights, title and interest of the Transferor in
and to the Beneficial Interest under the Trust Agreement and the Lessor's
Estate created thereunder, and all of the Transferor's rights and
obligations under the Participation Agreement, the Trust Agreement and the
other Operative Agreements to __________________, a _______________
[corporation] (together with its successors and assigns, the "Transferee"),
a subsidiary of the Guarantor, pursuant to the Beneficial Interest Transfer
Agreement, dated as of the date hereof (the "Transfer Agreement"), between
the Transferor and the Transferee; and
WHEREAS, the terms of the Participation Agreement
provide that the aforementioned transfer is conditioned upon the execution
and delivery of this Guaranty by the Guarantor;
NOW, THEREFORE, in order that the Transferor may make
the aforementioned transfer to the Transferee, the Guarantor hereby agrees
with and for the benefit of the Beneficiaries as follows:
1. Definitions. Capitalized terms used herein
without definition shall have the respective meanings assigned thereto in
the Participation Agreement or the Transfer Agreement.
2. Guaranty. The Guarantor hereby unconditionally
and irrevocably guarantees, as primary obligor and not merely surety, to
the Beneficiaries the prompt and complete payment by the Transferee when
due of all payment obligations of the Transferee under the Operative
Agreements without offset or deduction and the timely performance of all
other obligations of the Transferee thereunder (such payment and other
obligations, the "Obligations"), and the Guarantor further agrees to pay
any and all expenses (including, without limitation, reasonable fees and
expenses of counsel) that may be paid or incurred by the Beneficiaries in
enforcing any rights with respect to, or collecting, any or all of the
Obligations and/or enforcing any rights with respect to, or collecting
against, the Guarantor under this Guaranty.
The Guarantor will not exercise any rights that it may
now or hereafter acquire against Transferee that arise from the existence,
payment, performance or enforcement of the Guarantor's Obligations under
this Guaranty, the Transferred Interest or the Operative Agreements,
including, without limitation, any right of subrogation, reimbursement,
exoneration, contribution or indemnification and any right to participate
in any claim or remedy of any Beneficiary against Transferee or any
collateral, whether or not such claim, remedy or right arises in equity or
under contract, statute or common law, including, without limitation, the
right to take or receive from Transferee, directly or indirectly, in cash
or other property or by set-off or in any other manner, payment or security
on account of such claim, remedy or right, unless and until all of the
Obligations have been performed in full and all other amounts payable under
this Guaranty shall have been paid in full in cash. If any amount shall be
paid to the Guarantor in violation of the preceding sentence at any time
prior to the final payment in full in cash of the Obligations and all other
amounts payable under this Guaranty, such amount shall be held in trust for
the benefit of any Beneficiary and shall forthwith be paid to such
Beneficiary to be credited and applied to the Obligations and all other
amounts payable under this Guaranty, whether matured or unmatured, in
accordance with the terms of the Operative Agreements, or to be held as
collateral for any Obligations or other amounts payable under this Guaranty
thereafter arising.
3. No Subrogation. Notwithstanding anything to the
contrary in this Guaranty, the Guarantor hereby agrees not to assert any
rights which may have arisen in connection with this Guaranty to be
subrogated to any of the rights (whether contractual, under the Bankruptcy
Code, under common law or otherwise) of any Beneficiary against the
Transferee for the payment of the Obligations until all of the Obligations
shall have been satisfied by payment and performance in full.
4. Amendments with Respect to the Obligations;
Waiver of Rights. The Guarantor shall remain fully obligated hereunder
notwithstanding that, without any reservation of rights against the
Guarantor and without notice to or further assent by the Guarantor, any
demand for payment or performance of any of the Obligations made by any
Beneficiary may be rescinded by such party and any of the obligations
continued, and the Obligations, may, from time to time, in whole or part,
be renewed, extended, amended, modified, accelerated, compromised, waived,
surrendered or released by any Beneficiary and any Operative Agreement may
be amended, modified, supplemented or terminated, in whole or in part, in
accordance with the provisions thereof from time to time. When making any
demand hereunder against the Guarantor, a Beneficiary may, but shall be
under no obligation to, make a similar demand on the Transferee, and any
failure by a Beneficiary to make any such demand or to collect any payments
from the Transferee or any release of the Transferee shall not relieve the
Guarantor of its obligations or liabilities hereunder, and shall not impair
or affect the rights and remedies, express or implied, or as a matter of
law, of any Beneficiary against the Guarantor. For the purposes hereof,
"demand" shall include the commencement and continuance of any legal
proceedings. The Guarantor represents and warrants that it is the parent
of the Transferee, and agrees that its obligations hereunder shall continue
unimpaired, even if the Guarantor is no longer an Affiliate of the
Transferee.
5. Guaranty Absolute and Unconditional. The
Guarantor guarantees that the Obligations will be paid and performed
strictly in accordance with the terms of the Transfer Agreement and the
Operative Agreements, regardless of any law, regulation or order now or
hereafter in effect in any jurisdiction affecting any such terms or the
rights of any Beneficiary with respect thereto. The obligations of the
Guarantor under this Guaranty are independent of the Obligations or any
other obligations of any other party, and a separate action or actions may
be brought and prosecuted against the Guarantor to enforce this Guaranty,
irrespective of whether the Transferee or any other party is joined in any
such action or actions. The Guarantor waives any and all notice of the
creation, renewal, extension or accrual of any of the Obligations and
notice of or proof of reliance by any Beneficiary upon this Guaranty or
acceptance of this Guaranty; the Obligations, and any of them, shall
conclusively be deemed to have been created, contracted or incurred, or
renewed, extended, amended or waived, in reliance upon this Guaranty; and
all dealings between the Transferee or the Guarantor and any Beneficiary
shall likewise be conclusively presumed to have been had or consummated in
reliance upon this Guaranty. The Guarantor waives, to the fullest extent
permitted by applicable law, diligence, presentment, promptness, protest,
mitigation of damages by the Beneficiaries demand for payment and notice of
default or nonpayment to or upon the Transferee or the Guarantor with
respect to the Obligations. The Guarantor further waives any right to
revoke this Guaranty, and acknowledges that this Guaranty is continuing in
nature and applies to all Obligations, whether existing now or in the
future. The Guarantor understands and agrees that, to the fullest extent
permitted by applicable law, this Guaranty shall be construed as a
continuing, absolute and unconditional guaranty of payment and performance
(and not merely of collectibility) without regard to:
(a) the validity, regularity or enforceability of the
Transfer Agreement, any Operative Agreement, or any of the
Obligations at any time or from time to time held by any
Beneficiary;
(b) any defense, set-off, rebate, adjustment, withholding,
deduction or counterclaim (other than a defense of payment or
performance) that may at any time be available to or be asserted
by the Transferee against any Beneficiary or any agreement or
instrument relating thereto or;
(c) any change in the time, manner or place of payment of,
or in any other term of, all or any of the obligations or any
other obligations of any other party under the Transfer Agreement,
the Operative Agreements, or any other amendment or waiver of or
any consent to departure from the Transfer Agreement or other
Operative Agreements;
(d) any taking, release or amendment or waiver of or consent
to departure from any other guaranty, for all or any of the
Obligations;
(e) any change, restructuring or termination of the
corporate structure or existence of the Guarantor or the
Transferee or any of the Affiliates of either;
(f) any defect in the title, condition, design, operation or
fitness of, or any interference with the operation, use or
possession of, the Aircraft;
(g) any failure to establish, perfect or preserve title to
or any security interest in or to the Aircraft or any other
collateral security for the Obligations; or
(h) any other circumstance whatsoever or any existence of or
reliance on any representation by any Beneficiary that might
otherwise constitute a defense available to, or a discharge of,
the Guarantor or any other guarantor or surety.
When pursuing its rights and remedies hereunder against the
Guarantor, any Beneficiary may, but shall be under no obligation to, pursue
such rights and remedies as it may have against the Transferee for the
Obligations, and any failure by any Beneficiary to pursue such other rights
or remedies or to collect any payments from the Transferee, or any release
of the Transferee, shall not, to the fullest extent permitted by applicable
law, relieve the Guarantor of any liability hereunder, and shall not impair
or affect the rights and remedies, whether express, implied or available as
a matter of law, of any Beneficiary against the Guarantor. This Guaranty
is a continuing guaranty and shall remain in full force and effect until
the earlier of (x) the date that all of the Obligations are satisfied by
payment and performance in full and (y) the date that all right, title and
interest of the Transferee shall have been transferred to a Person meeting
the requirements of Section 7.03(d) of the Participation Agreement in
accordance with said section; provided that this Guaranty shall remain in
full force and effect with respect to obligations relating to the period
prior to such transfer.
6. Reinstatement. This Guaranty shall continue to be
effective, or be reinstated, as the case may be, if at any time payment, or
any part thereof, of any of the Obligations is rescinded or must otherwise
be restored or returned by any Beneficiary upon the insolvency, bankruptcy
dissolution, liquidation or reorganization of the Transferee or the
Guarantor, or upon or as a result of the appointment of a receiver,
intervenor or conservator of, or trustee or similar officer for, the
Transferee or the Guarantor or any substantial part of its property, or
otherwise, all as though such payments had not been made and the Guarantor
agrees that it will indemnify any such Beneficiary on demand for all
reasonable costs and expenses (including, without limitation, reasonable
fees and expenses of counsel) by such Beneficiary in connection with such
rescission or restoration.
7. Payments. The Guarantor hereby guarantees that
payments hereunder shall be paid without set-off, counterclaim, deduction,
rebate, adjustment or withholding, and shall be made in U.S. Dollars in
immediately available funds.
8. Representations and Warranties. The Guarantor
hereby represents and warrants that:
(a) the Guarantor is a corporation duly organized, validly
existing and in good standing under the laws of the jurisdiction
of its incorporation and the Transferee is currently a subsidiary
of the Guarantor;
(b) the Guarantor has the power and authority and the legal
right to execute and deliver, and to perform its obligations
under, this Guaranty, and has taken all necessary corporate action
to authorize its execution, delivery and performance of this
Guaranty;
(c) this Guaranty constitutes a legal, valid and binding
obligation of the Guarantor enforceable in accordance with its
terms, except as enforceability may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting
the enforcement of creditors' rights generally;
(d) the execution, delivery and performance of this Guaranty
will not violate any provision of any requirement of law or
contractual obligation of the Guarantor or any of its constitutive
documents;
(e) no consent or authorization of, filing with, or other
act by or in respect of, any arbitrator or governmental authority
and no consent of any other person is required in connection with
the execution, delivery, performance, validity or enforceability
of this Guaranty;
(f) the Guarantor is a [a bank, savings institution, finance
company, leasing company or trust company, national banking
association acting for its own account or in a fiduciary capacity
as trustee or agent under any pension, retirement, profit sharing
or similar trust or fund, insurance company, fraternal benefit
society or corporation acting for its own account having a
combined capital and surplus (or, if applicable, consolidated
tangible net worth or its equivalent)] of not less than
$75,000,000 [and has, if the same have been requested by the
Lessee or the Indenture Trustee, heretofore furnished to the
Lessee and the Indenture Trustee copies of its most recent audited
financial statements];
(g) there are no conditions precedent to the effectiveness
of this Guaranty that have not been satisfied or waived; and
(h) the Guarantor has, independently and without reliance
upon any Beneficiary and based on such documents and information
as it has deemed appropriate, made its own credit analysis and
decision to enter into this Guaranty, and the Guarantor has
established adequate means of obtaining from Transferee on a
continuing basis information pertaining to, and is now and on a
continuing basis will be completely familiar with, the financial
condition, operations, properties and prospects of Transferee.
9. Severability. Any provision of this Guaranty that
is prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and
any such prohibition or unenforceability in any jurisdiction shall not
invalidate or render unenforceable such provision in any other
jurisdiction.
10. Jurisdiction; Waiver of Jury Trial, Etc.
(a) The Guarantor hereby irrevocably and
unconditionally submits, for itself and its property, to the nonexclusive
jurisdiction of any New York State court or federal court of the United
States of America sitting in New York, New York, and any appellate court
from any thereof, in any action or proceeding arising out of or relating to
this Guaranty, the Transfer Agreement or any Operative Agreement to which
it is or is to be a party, or for recognition or enforcement of any
judgment, and the Guarantor hereby irrevocably and unconditionally agrees
that all claims in respect of any such action or proceeding may be heard
and determined in any such New York State court or, to the extent permitted
by law, in such federal court. The Guarantor agrees that a final judgment
in any such action or proceeding shall be conclusive and may be enforced in
other jurisdictions by suit on the judgment or in any other manner provided
by law. Nothing in this Guaranty shall affect any right that any party may
otherwise have to bring any action or proceeding relating to this Guaranty,
the Transfer Agreement or any Operative Agreement to which it is or is to
be a party in the courts of any jurisdiction.
(b) The Guarantor irrevocably and unconditionally
waives, to the fullest extent it may legally and effectively do so, any
objection that it may now or hereafter have to the laying of venue of any
suit, action or proceeding arising out of or relating to this Guaranty, the
Transfer Agreement or any Operative Agreement to which it is or is to be a
party in any New York State or federal court. The Guarantor hereby
irrevocably waives, to the fullest extent permitted by law, the defense of
an inconvenient forum to the maintenance of such action or proceeding in
any such court.
11. Section Headings. The Section headings used in
this Guaranty are for convenience of reference only and are not to affect
the construction hereof or be taken into consideration in the
interpretation hereof.
12. No Waiver; Cumulative Remedies. No Beneficiary
shall by any act (except by a written instrument pursuant to Section 13
hereof), delay, indulgence, omission or otherwise be deemed to have waived
any right or remedy hereunder or to have acquiesced in any breach of any of
the terms and conditions hereof. No failure to exercise, nor any delay in
exercising, on the part of any Beneficiary, any right, power or privilege
hereunder shall operate as a waiver thereof. No single or partial exercise
of any right, power or privilege hereunder shall preclude any other or
further exercise thereof or the exercise of any other right power or
privilege. A waiver by a Beneficiary of any right or remedy hereunder on
any one occasion shall not be construed as a bar to any right or remedy
that such Beneficiary would otherwise have on any future occasion. The
rights and remedies herein provided are cumulative, may be exercised singly
or concurrently and are not exclusive of any rights or remedies provided by
law.
13. Amendments and Waivers. None of the terms or
provisions of this Guaranty may be waived, amended or supplemented or
otherwise modified except by a written instrument executed by the Guarantor
and each Beneficiary.
14. Successors and Assigns. This Guaranty shall be
binding upon the successors and assigns of the Guarantor and shall inure to
the benefit of the Beneficiaries and their respective successors and
permitted assigns but Guarantor may not assign this Guaranty without prior
written consent of the Beneficiaries except to an assignee making, as of
the date of such assignment, (i) representations and warranties
substantially similar to those contained in Section 8 hereof and (ii) a
representation that it is a U.S. citizen, unless, in the case of the
preceding clause (ii) any of (a) the aircraft is not then registered in the
United States nor contemplated to be so registered or (b) a voting trust or
similar arrangement reasonably satisfactory to the Beneficiaries is in
place with respect to such registration or (c) it is not necessary for the
Guarantor to be a U.S. citizen in order for the aircraft to remain
registered in the United States.
15. GOVERNING LAW. THIS GUARANTY SHALL BE GOVERNED
BY AND BE CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAW OF THE STATE
OF NEW YORK.
16. Notices. All notices, requests and demands to or
upon the Guarantor or any Beneficiary to be effective shall be in writing
and, unless otherwise expressly provided herein, shall be deemed to have
been duly given or made, when delivered by hand or by mail, upon receipt,
or, when delivered by facsimile transmission, upon being sent and
confirmed, addressed (a) in the case of the Guarantor, to the Guarantor at
its office at [_________________________________], and (b) in the case of
any Beneficiary, to such Beneficiary at the address provided for such
Beneficiary in or pursuant to the Participation Agreement.
IN WITNESS WHEREOF, the undersigned has caused this Guaranty to
be duly executed and delivered by its duly authorized officer as of the day
and year first above written.
[NAME OF GUARANTOR]
_________________________________
Name:
Title:
PARTICIPATION AGREEMENT
(FEDERAL EXPRESS CORPORATION TRUST NO. N671FE)
Dated as of May 1, 1997
among
FEDERAL EXPRESS CORPORATION,
Lessee
PMCC LEASING CORPORATION,
Owner Participant
STATE STREET BANK AND TRUST COMPANY OF CONNECTICUT,
NATIONAL ASSOCIATION,
Not in Its Individual Capacity
Except as Otherwise Expressly
Set Forth Herein, but Solely as Owner Trustee,
Owner Trustee
FIRST SECURITY BANK, NATIONAL ASSOCIATION,
Indenture Trustee
FIRST SECURITY BANK, NATIONAL ASSOCIATION,
Pass Through Trustee
and
FIRST SECURITY BANK, NATIONAL ASSOCIATION,
Subordination Agent
______________________________
LEVERAGED LEASE OF ONE AIRBUS A300F4-605R AIRCRAFT
SERIAL NO. 778, REGISTRATION NO. N671FE
TABLE OF CONTENTS
Page
Initial Recitals........................................................... 1
ARTICLE 1
DEFINITIONS............................................................. 3
ARTICLE 2
ISSUANCE OF PASS THROUGH CERTIFICATES;
ISSUANCE AND PURCHASE OF CERTIFICATES
Section 2.01. Transfer of Funds........................................ 4
Section 2.02. Certificates............................................. 5
Section 2.03. Owner Participant's Instructions to Owner Trustee........ 5
Section 2.04. Pre-Delivery Date Adjustments to Basic Rent, Stipulated
Loss Values and Termination Values....................... 5
ARTICLE 3
PARTICIPATION IN INVESTMENT ON DELIVERY DATE;
DELIVERY OF AIRCRAFT
Section 3.01. Lessee's Notice of Delivery Date......................... 6
Section 3.02. Commitments to Participate in Purchase Price............. 6
Section 3.03. Owner Participant's Instructions to Owner Trustee........ 9
Section 3.04. Transaction Costs........................................ 9
Section 3.05. Postponement of Delivery Date............................ 9
Section 3.06. Closing.................................................. 11
ARTICLE 4
CONDITIONS PRECEDENT
Section 4.01. Conditions Precedent (Certificate Closing Date).......... 11
Section 4.02. Conditions Precedent (Delivery Date)..................... 20
Section 4.03. Opinion of Special Aviation Counsel Upon Registration.... 28
ARTICLE 5
CONDITIONS PRECEDENT TO LESSEE'S OBLIGATIONS
Section 5.01. Conditions Precedent to Lessee's Obligations............. 28
ARTICLE 6
LESSEE'S REPRESENTATIONS, WARRANTIES AND COVENANTS
Section 6.01. Lessee's Representations and Warranties.................. 29
Section 6.02. Offering by Lessee....................................... 35
Section 6.03. Certain Covenants of Lessee.............................. 35
Section 6.04. Survival of Representations and Warranties............... 43
ARTICLE 7
OTHER PARTIES' REPRESENTATIONS, WARRANTIES AND COVENANTS
Section 7.01. Acquisitions and Offerings of Interests in Lessor's
Estate................................................... 43
Section 7.02. Citizenship.............................................. 44
Section 7.03. Representations, Warranties and Covenants of Owner
Participant.............................................. 45
Section 7.04. Representations, Covenants and Warranties of SSB and the
Owner Trustee............................................ 50
Section 7.05. Representations, Warranties and Covenants of the Indenture
Trustee.................................................. 52
Section 7.06. Indenture Trustee's Notice of Default.................... 54
Section 7.07. Releases from Indenture.................................. 54
Section 7.08. Covenant of Quiet Enjoyment.............................. 54
Section 7.09. Pass Through Trustee's Representations and Warranties.... 54
Section 7.10. Survival of Representations, Warranties and Covenants.... 55
Section 7.11. Lessee's Assumption of the Certificates.................. 55
Section 7.12. Indebtedness of Owner Trustee............................ 57
Section 7.13. Compliance with Trust Agreement, Etc..................... 58
Section 7.14. Subordination Agent's Representations, Warranties and
Covenants................................................ 58
ARTICLE 8
TAXES
Section 8.01. Lessee's Obligation to Pay Taxes......................... 60
Section 8.02. After-Tax Basis.......................................... 65
Section 8.03. Time of Payment.......................................... 66
Section 8.04. Contests................................................. 66
Section 8.05. Refunds.................................................. 69
Section 8.06. Lessee's Reports......................................... 69
Section 8.07. Survival of Obligations.................................. 70
Section 8.08. Payment of Taxes......................................... 70
Section 8.09. Reimbursements by Indemnitees Generally.................. 70
Section 8.10. Special Indemnity........................................ 70
ARTICLE 9
GENERAL INDEMNITY
Section 9.01. Generally................................................ 71
Section 9.02. After-Tax Basis.......................................... 74
Section 9.03. Subrogation.............................................. 75
Section 9.04. Notice and Payment....................................... 75
Section 9.05. Refunds.................................................. 75
Section 9.06. Defense of Claims........................................ 76
Section 9.07. Survival of Obligations.................................. 77
Section 9.08. Effect of Other Indemnities.............................. 77
Section 9.09. Interest................................................. 77
Section 9.10. Special Indemnity........................................ 78
ARTICLE 10
TRANSACTION COSTS
Section 10.01. Transaction Costs and Other Costs....................... 78
ARTICLE 11
SUCCESSOR OWNER TRUSTEE
Section 11.01. Appointment of Successor Owner Trustee.................. 80
ARTICLE 12
LIABILITIES AND INTERESTS OF THE OWNER PARTICIPANT AND HOLDERS
Section 12.01. Liabilities of the Owner Participant.................... 82
Section 12.02. Interest of Holders of Certificates..................... 82
ARTICLE 13
OTHER DOCUMENTS
Section 13.01. Consent of Lessee to Other Documents.................... 82
Section 13.02. Further Assurances...................................... 83
Section 13.03. Pass Through Trustee's and Subordination Agent's
Acknowledgment.......................................... 83
ARTICLE 14
NOTICES
Section 14.01. Notices................................................. 83
ARTICLE 15
REFINANCING/REOPTIMIZATION
Section 15.01. Refinancing............................................. 84
Section 15.02. Reoptimization.......................................... 88
ARTICLE 16
[RESERVED]
ARTICLE 17
MISCELLANEOUS
Section 17.01. Owner for Federal Tax Purposes.......................... 89
Section 17.02. Collateral Account...................................... 89
Section 17.03. Counterparts............................................ 90
Section 17.04. No Oral Modifications................................... 90
Section 17.05. Captions................................................ 91
Section 17.06. Successors and Assigns.................................. 91
Section 17.07. Concerning the Owner Trustee, Indenture Trustee and the
Pass Through Trustee.................................... 91
Section 17.08. Severability............................................ 92
Section 17.09. Public Release of Information........................... 92
Section 17.10. Certain Limitations on Reorganization................... 92
Section 17.11. GOVERNING LAW........................................... 93
Section 17.12. Section 1110 Compliance................................. 93
Section 17.13. Reliance of Liquidity Providers......................... 93
ARTICLE 18
CONFIDENTIALITY
Section 18.01. Confidentiality......................................... 93
SCHEDULE I Certificate Information
SCHEDULE II Definitions
SCHEDULE III Permitted Country List
SCHEDULE IV Debt Portion
EXHIBIT A(1)(a)(i) Opinion of Lessee's Counsel
(Certificate Closing Date)
EXHIBIT A(1)(a)(ii) Opinion of Lessee's Counsel
(Delivery Date)
EXHIBIT A(1)(b)(i) Opinion of Lessee's Special Counsel
(Certificate Closing Date)
EXHIBIT A(1)(b)(ii) Opinion of Lessee's Special Counsel
(Delivery Date)
EXHIBIT A(2)(a) Opinion of Owner Participant's and Owner Participant
Guarantor's Special Counsel
EXHIBIT A(2)(b) Opinion of Owner Participant's and Owner Participant
Guarantor's Counsel
EXHIBIT A(3) Opinion of Indenture Trustee's Special Counsel
EXHIBIT A(4)(a)(i) Opinion of Owner Trustee's Special Counsel
(Certificate Closing Date)
EXHIBIT A(4)(a)(ii) Opinion of Owner Trustee's Special Counsel
(Delivery Date)
EXHIBIT A(5) Opinion of Pass Through Trustee's and Subordination
Agent's Special Counsel
EXHIBIT A(6)(a) Opinion of Liquidity Provider's Counsel
EXHIBIT A(6)(b) Opinion of Liquidity Provider's Special Counsel
EXHIBIT A(7) Opinion of Engine Manufacturer's Counsel
EXHIBIT A(8) Opinion of Manufacturer's and AVSA's Counsel
EXHIBIT A(9) Opinion of Special Aviation Counsel
EXHIBIT B Form of Lease Agreement
EXHIBIT C Form of Indenture
EXHIBIT D Form of Trust Agreement
EXHIBIT E Form of Purchase Agreement Assignment, Consent and
Agreement, AVSA Consent and Agreement
EXHIBIT F Form of Engine Warranty Assignment and Engine Consent
EXHIBIT G-1 Form of Assignment and Assumption Agreement
EXHIBIT G-2 Form of Owner Participant Guaranty
PARTICIPATION AGREEMENT
(FEDERAL EXPRESS CORPORATION TRUST NO. N671FE)
PARTICIPATION AGREEMENT (FEDERAL EXPRESS CORPORATION TRUST NO.
N671FE) dated as of May 1, 1997 (this "Agreement") among FEDERAL EXPRESS
CORPORATION, a Delaware corporation (herein, together with its successors and
permitted assigns, the "Lessee"), PMCC LEASING CORPORATION, a Delaware
corporation (herein, together with its successors and permitted assigns, the
"Owner Participant"), STATE STREET BANK AND TRUST COMPANY OF CONNECTICUT,
NATIONAL ASSOCIATION, a national banking association, not in its individual
capacity, except as otherwise expressly stated herein, but solely as owner
trustee under the Trust Agreement referred to below (in such capacity as
trustee, together with its successors and permitted assigns, the "Owner
Trustee"), FIRST SECURITY BANK, NATIONAL ASSOCIATION, a national banking
association, not in its individual capacity, except as otherwise expressly
stated herein, but solely as indenture trustee under the Indenture referred to
below (in such capacity as trustee, together with its successors and permitted
assigns, the "Indenture Trustee"), FIRST SECURITY BANK, NATIONAL ASSOCIATION,
a national banking association, not in its individual capacity, except as
otherwise expressly stated herein, but solely as pass through trustee of three
separate Pass Through Trusts (in such capacity as trustee, together with its
successors and permitted assigns, the "Pass Through Trustee"), and FIRST
SECURITY BANK, NATIONAL ASSOCIATION, a national banking association, not in its
individual capacity, except as otherwise expressly stated herein, but solely as
subordination agent (in such capacity as trustee, together with its successors
and permitted assigns, the "Subordination Agent").
W I T N E S S E T H :
WHEREAS, capitalized terms used herein shall have the respective
meanings set forth or referred to in Article 1 hereof.
WHEREAS, the Owner Participant has entered into the Trust Agreement
with the Owner Trustee in its individual capacity, substantially in the form
of Exhibit D hereto, pursuant to which Trust Agreement the Owner Trustee
agrees, among other things, to hold the Lessor's Estate for the benefit of the
Owner Participant on the terms specified in the Trust Agreement, subject to
the Lien of the Indenture.
WHEREAS, on the Pass Through Closing Date, a closing will occur
with respect to the public offering of Pass Through Certificates issued by
each Pass Through Trust, an allocable amount of the proceeds of which
offering will be used by the Pass Through Trustee to purchase for each such
Pass Through Trust the Certificates of the Series and Maturity applicable
thereto.
WHEREAS, on the Certificate Closing Date, the Owner Trustee and the
Indenture Trustee will enter into the Indenture for the benefit of the Pass
Through Trustee, pursuant to which the Owner Trustee is issuing the
Certificates to the Subordination Agent on behalf of the Pass Through Trustee
as evidence of the loans made by the Pass Through Trustee to the Owner
Trustee, the proceeds of which loans will be deposited by the Indenture
Trustee on behalf of the Owner Trustee in the Collateral Account.
WHEREAS, concurrently with the execution and delivery hereof, (i)
Kredietbank N.V., acting through its New York Branch will enter into two
revolving credit agreements (each, a "Liquidity Facility"), one for the
benefit of the holders of Pass Through Certificates of each of the Pass
Through Trusts for the Series A Certificates and the Series B Certificates,
with the Subordination Agent, as agent for the Pass Through Trustee on behalf
of each such Pass Through Trust; and (ii) the Pass Through Trustee, each
Liquidity Provider and the Subordination Agent will enter into the
Intercreditor Agreement.
WHEREAS, the Certificates will be held by the Subordination Agent
pursuant to the Intercreditor Agreement on behalf of the Pass Through Trustee
for each of the Pass Through Trusts.
WHEREAS, prior to the Delivery Date, the Certificates will be secured
by the Liquid Collateral.
WHEREAS, pursuant to the terms of the Trust Agreement, the Owner
Trustee will be authorized and directed by the Owner Participant:
(a) on the Delivery Date, to purchase the Aircraft from AVSA;
(b) on the Certificate Closing Date, to execute and deliver the
Lease substantially in the form of Exhibit B hereto, pursuant to which,
subject to the terms and conditions set forth in said Lease, the Owner
Trustee agrees to lease to the Lessee, and the Lessee agrees to lease from
the Owner Trustee, the Aircraft on the Delivery Date, such lease to be
effected by the execution and delivery on the Delivery Date of a Lease
Supplement, in the form of Exhibit A to the Lease, covering the Aircraft
and incorporating by reference all of the terms of the Lease;
(c) on the Certificate Closing Date, to execute and deliver the
Indenture, substantially in the form of Exhibit C hereto, for the benefit
of the Holders from time to time of the Certificates, pursuant to which the
Owner Trustee agrees, among other things, (A) to deposit, mortgage and
pledge with the Indenture Trustee, as part of the Trust Indenture Estate,
all of the Lessor's Estate but not Excepted Payments, (B) on the
Certificate Closing Date, to issue Certificates substantially in the form
set forth in Exhibit B to the Indenture, the proceeds of the sale of which
will be held by the Indenture Trustee on behalf of the Owner Trustee in
the Collateral Account until released in accordance with the terms
hereof and of the Indenture, and (C) on the Delivery Date, to execute
and deliver the Indenture and Security Agreement Supplement,
substantially in the form of Exhibit A to the Indenture, covering the
Aircraft and supplementing the Indenture;
(d) on the Certificate Closing Date, to execute and deliver the
Purchase Agreement Assignment, whereby the Lessee assigns to the Owner
Trustee the right to purchase the Aircraft from AVSA and certain of the
Lessee's rights and interests under the Purchase Agreement and the Consent
and Guaranty to the extent that the same relate to the Aircraft (except to
the extent reserved in said Purchase Agreement Assignment), which Purchase
Agreement Assignment is to include as an annex a Consent and Agreement
executed by the Manufacturer and the AVSA Consent and Agreement executed by
AVSA, said Purchase Agreement Assignment, Consent and Agreement and AVSA
Consent and Agreement to be substantially in the form of Exhibit E hereto;
and
(e) on the Certificate Closing Date, to execute and deliver the
Engine Warranty Assignment, whereby the Lessee assigns to the Owner Trustee
certain of the Lessee's rights and interests under the GTA to the extent
that the same relate to the Engines (except to the extent reserved in the
Engine Warranty Assignment), which Engine Warranty Assignment is to include
as an annex an Engine Consent executed by the Engine Manufacturer, said
Engine Warranty Assignment and Engine Consent to be substantially in the
form of Exhibit F hereto.
WHEREAS, on the Delivery Date pursuant to and subject to the terms
and conditions of this Agreement, the Purchase Agreement Assignment, the
Engine Warranty Assignment, AVSA's FAA Bill of Sale, AVSA's Warranty Bill
of Sale and the Airbus Guaranty, the Owner Trustee will purchase, and
receive title to, the Aircraft from AVSA and lease the Aircraft to the
Lessee pursuant to the Lease.
NOW, THEREFORE, in consideration of the mutual covenants contained in
this Agreement and other good and valuable consideration, receipt of which is
hereby acknowledged, the parties hereto agree as follows:
ARTICLE 1
DEFINITIONS
Unless otherwise specifically provided herein, the definitions set
forth in Schedule II hereto are incorporated herein for all purposes of this
Agreement and shall be equally applicable to both the singular and the plural
forms of the terms so defined.
ARTICLE 2
ISSUANCE OF PASS THROUGH CERTIFICATES;
ISSUANCE AND PURCHASE OF CERTIFICATES
Section 2.01. Transfer of Funds.
(a) On or before the Pass Through Closing Date, the Pass Through
Trustee and the Lessee, in accordance with the Pass Through Agreement, shall
enter into the Series Supplements, and, subject to the terms and conditions
set forth therein, on the Pass Through Closing Date (i) the Lessee shall
direct the Underwriters to execute a wire transfer or intra-bank transfer to
the Pass Through Trustee in the amount of the total proceeds payable pursuant
to the Underwriting Agreement with respect to the Pass Through Certificates
and (ii) the Pass Through Trustee shall deliver the Pass Through Certificates
to the Underwriters upon receipt by the Pass Through Trustee of such proceeds.
(b) Subject to the satisfaction or waiver of the conditions set
forth herein, on the Certificate Closing Date, on behalf of each Pass Through
Trust, from an allocable amount of the proceeds of the sale of the related
Pass Through Certificates, the Pass Through Trustee shall purchase the
Certificates specified for such Pass Through Trust on Schedule I hereto. For
each Pass Through Trust, the Pass Through Trustee shall pay an amount equal to
the principal amount of Certificates of the Series and Maturity that relates
to such Pass Through Trust, which amounts in the aggregate shall equal the
aggregate principal amount of the Certificates as specified in Section 2.04 of
the Indenture. The aggregate amount payable by the Pass Through Trustee
pursuant to this Section 2.01(b) shall be payable by wire transfer or
intra-bank transfer to the Indenture Trustee on behalf of the Owner Trustee.
(c) On the Certificate Closing Date, the Indenture Trustee shall,
on behalf of the Owner Trustee, deposit, by wire transfer or intra-bank
transfer, the amounts received by it pursuant to Section 2.01(b) hereof in the
Collateral Account pursuant to the Indenture.
(d) On the Certificate Closing Date concurrently with the events
specified in Section 2.01(b) hereof, the parties hereto shall execute and
deliver, to the extent they are parties thereto, and consent to the execution
and delivery of (if they are not parties thereto), the Lease (other than the
Lease Supplement), the Indenture (other than the Indenture and Security
Agreement Supplement), and the other documents listed in Section 4.01(d)
hereof, and the Owner Trustee shall execute and deliver to the Indenture
Trustee for authentication, and the Indenture Trustee shall authenticate and
deliver to the Subordination Agent on behalf of the Pass Through Trustee for
each of the Pass Through Trusts, upon the request of the Owner Trustee, the
Certificates as provided in Section 2.02 hereof.
(e) The Closings shall take place at the offices of Davis Polk &
Wardwell, 450 Lexington Avenue, New York, New York 10017.
Section 2.02. Certificates. Subject to the satisfaction or waiver
of the conditions set forth herein, on the Certificate Closing Date, the Owner
Participant will instruct the Owner Trustee to execute and deliver to the
Indenture Trustee, and the Indenture Trustee shall authenticate and deliver,
upon the request of the Owner Trustee, to the Subordination Agent on behalf of
the Pass Through Trustee for each of the Pass Through Trusts, the Certificates
specified for such Pass Through Trust on Schedule I attached hereto, which (i)
shall be issued in the principal amount and in the Series and Maturity set
forth for such Certificate in Schedule I hereto, (ii) shall bear interest at
the interest rate set forth for such Certificate in Schedule I hereto, (iii)
shall be issued in such form and on such terms as are specified in the
Indenture, (iv) shall be dated and authenticated on the Certificate Closing
Date and shall bear interest from the Certificate Closing Date and (v) shall
be registered in the name of the Subordination Agent on behalf of the Pass
Through Trustee for such Pass Through Trust.
Section 2.03. Owner Participant's Instructions to Owner Trustee.
The Owner Participant agrees that the issuance of Certificates in
accordance with the terms hereof shall constitute, without further act,
authorization and direction by the Owner Participant to the Owner Trustee
to take the action specified in Section 1.01 (other than clauses (a) and
(c)) of the Trust Agreement and confirmation that all conditions to closing
in respect of the Certificate Closing Date set forth in Section 4.01 (but
not Section 4.02) hereof were either met to the satisfaction of the Owner
Participant or, if not so met, were in any event waived by it.
Section 2.04. Pre-Delivery Date Adjustments to Basic Rent,
Stipulated Loss Values and Termination Values. On or prior to the Delivery
Date, the percentages for Basic Rent referred to in Schedule II of the Lease
and the percentages for Stipulated Loss Value and Termination Value in
Schedule III and Schedule IV, respectively, of the Lease shall be adjusted
(upward or downward), subject to the procedures set forth in Section 3.04 of
the Lease and the minimum values established by Section 3.05 of the Lease and
the definitions of Stipulated Loss Value and Termination Value, to reflect
changes in the pricing assumptions with respect to (i) the Delivery Date being
other than June 20, 1997, (ii) a different rate of interest or amortization
schedule assumed by the Owner Participant in calculating such percentages from
that assumed by the Owner Participant in originally calculating such
percentages, (iii) Transaction Costs being other than as assumed in Section
10.01 hereof, (iv) any change in the length of the Basic Term (but in no event
shall the Term exceed 23.25 years) and (v) a Change in Tax Law which occurs
after the date of the execution of this Agreement but on or prior to the
Delivery Date. Notwithstanding anything herein to the contrary, the Lessee
shall have no obligation to enter into the transaction contemplated by this
Agreement other than with respect to Transaction Costs as described in Section
2.03 below and its obligation to purchase the Aircraft as provided in Section
3.05(a) hereof if, as a result of a Change in Tax Law after the date of
execution of this Agreement but on or prior to the Delivery Date, the Net
Present Value of Rents is increased by 100 basis points or more.
ARTICLE 3
PARTICIPATION IN INVESTMENT ON DELIVERY DATE;
DELIVERY OF AIRCRAFT
Section 3.01. Lessee's Notice of Delivery Date. The Lessee agrees
to give the Owner Participant, the Indenture Trustee, the Owner Trustee and
the Pass Through Trustee at least three (3) Business Days' written or
facsimile notice prior to the Delivery Date (which notice shall be effective
only if received not later than 10:00 a.m. (New York City time) on the date
that is at least three (3) Business Days prior to the Delivery Date), which
Delivery Notice shall specify the amount of the Purchase Price, the amount of
the Owner Participant's Commitment, the Debt Portion, the Delivery Date for
the Aircraft, the serial number of the Airframe and each Engine, and the
Aeronautics Authority registration number for the Aircraft.
Section 3.02. Commitments to Participate in Purchase Price. (a)
Participation in Purchase Price. Subject to the terms and conditions of this
Agreement, on the Delivery Date, (i) subject to the proviso to this Section
3.02(a), the Indenture Trustee agrees to release the Debt Portion or such
lesser amount as may then be held in the Collateral Account together with the
Lessee Shortfall (as defined in clause (iii) below), if any, to the Owner
Trustee for application to the Purchase Price as provided below, (ii) the
Owner Participant agrees to participate in the Lessor's payment of the
Purchase Price by making an investment in the beneficial ownership of the
Lessor's Estate in an amount equal to the amount set forth in Ancillary
Agreement II, (iii) subject to the proviso to this Section 3.02(a), the Lessee
agrees to pay to the Indenture Trustee the excess, if any, of (I) the Debt
Portion over (II) such amount as may then be held in the Collateral Account
(the "Lessee Shortfall") as provided in Section 17.02(a) hereof, and (iv)
pursuant to the Purchase Agreement as assigned pursuant to the Purchase
Agreement Assignment, AVSA shall sell the Aircraft to the Owner Trustee and
the Owner Trustee shall immediately thereafter lease the Aircraft to the
Lessee pursuant to the Lease. In consideration for the assignment to the
Owner Trustee by the Lessee under the Purchase Agreement Assignment of the
Lessee's right to purchase the Aircraft for the remaining balance due under
the Purchase Agreement and for the transfer of title to the Aircraft from
AVSA to the Owner Trustee, the following cash payments will be made by wire
transfer of immediately available funds on the Delivery Date: (A) by the
Owner Trustee to AVSA, an amount equal to the remaining balance due to AVSA
under the Purchase Agreement for the Aircraft, as evidenced by the Invoice,
or if the proviso to this Section 3.02(a) is applicable, such amount as it
shall have received from the Owner Participant not to exceed such remaining
balance due to AVSA, (B) by the Owner Trustee to the Lessee, an amount
equal to the Purchase Price (or if the proviso to this Section 3.02(a) is
applicable, the amount received from the Owner Participant) minus the cash
payment to AVSA pursuant to clause (A) above and (C) by the Indenture
Trustee, on behalf of the Owner Trustee, to the Lessee the excess of any
amounts as may then be held in the Collateral Account over the Debt
Portion; provided, however, that if (1) the Delivery Date has been
postponed, (2) the investments contemplated by Section 2.14(b) of the
Indenture have been made, (3) such investments do not mature on the
rescheduled Delivery Date and (4) the Lessee elects not to break such
investments, then the Indenture Trustee shall not release amounts in the
Collateral Account to the Owner Trustee and the Lessee shall instead pay to
AVSA any balance of the Purchase Price remaining after payment to AVSA by
the Owner Trustee as contemplated by clause (A) above and the Indenture
Trustee shall pay to the Lessee at the end of the applicable investment
period referred to in Section 2.14(b) of the Indenture all amounts then
held in the Collateral Account.
(b) Payment of Commitment. The Owner Participant agrees with the
Lessee and only with the Lessee on behalf of the Owner Trustee, subject to the
terms and conditions of this Agreement, to make the amount of its Commitment
available for and on account of the Owner Trustee on the Delivery Date
specified in the Delivery Notice pursuant to Section 3.03 hereof by wire
transfer, initiated by 10:00 a.m. (New York City time on such day) of such
amount in immediately available funds, to the Owner Trustee for deposit in its
account at State Street Bank and Trust Company, Boston, Massachusetts, ABA
No. 011-000-028, A/C No. 9900-314-7, Attention: Christy O'Connor, Re: FedEx
Equity Payments Account. The amount of the Owner Participant's Commitment
shall be held for the account of the Owner Participant by the Owner Trustee
until released by the Owner Participant or its special counsel at closing or
until returned to the Owner Participant in accordance with Section 3.02(c)
hereof.
(c) No Obligation to Increase Commitments; Delayed Delivery. (i) If
the Indenture Trustee shall default in its obligation to make the amount of
its Debt Portion available pursuant hereto, the Owner Participant shall have
no obligation to make any portion of such Debt Portion available or to
increase the amount of its Commitment, and the obligations of the Owner
Participant shall remain subject to the terms and conditions of this
Agreement, until no later than September 30, 1997.
(ii) Subject to the provisions of Section 3.05 hereof, if the closing
of the transactions contemplated by the Operative Agreements shall not have
been consummated by 2:00 p.m. (New York City time), or such earlier time as
directed by the Lessee, on the Scheduled Delivery Date, the Owner Trustee
shall, if instructed in writing by the Lessee, at the risk and expense of the
Lessee, use its reasonable best efforts to cause the Owner Participant's
Commitment to be invested and reinvested to the extent practicable at the
direction received by it from the Lessee (with a copy to the Owner
Participant), at the risk of the Lessee, in Permitted Investments consisting
of either commercial paper or time deposits; provided, however, that in the
absence of instructions by 2:00 p.m. (New York City time) the Owner Trustee
shall use its reasonable best efforts to cause such amount or the proceeds
thereof to be invested and reinvested to the extent practicable in overnight
Eurodollar time deposits. Earnings on any such investments shall be applied
to the Lessee's payment obligations, if any, to such Owner Participant
pursuant to the next succeeding paragraph, and the balance, if any, of such
earnings remaining after such application shall be paid in accordance with the
Lessee's written instructions.
If for any reason (i) the Operative Agreements shall not be executed
and delivered by the respective parties thereto and/or the delayed Delivery
Date shall not occur (whether by reason of a failure to meet a condition
precedent thereto set forth in Article 4 hereof or otherwise) on or before the
third Business Day after the Scheduled Delivery Date (or earlier if requested
by the Owner Participant) or, if earlier, the Cut-Off Date, or (ii) the Lessee
has notified the Owner Trustee (with a copy to the Owner Participant) prior to
2:00 p.m. (New York City time) on any date after the Scheduled Delivery Date
that it does not intend to go forward to close the transactions contemplated
hereby for such Delivery Date, the Owner Participant may cancel any funding
arrangements made to fund its Commitment on the Scheduled Delivery Date but
the Owner Participant's Commitment hereunder with respect to the Aircraft
shall not be terminated thereby until September 30, 1997, whereupon the
Owner Participant's Commitment hereunder shall terminate. On such third
Business Day (or such earlier date) or September 30, 1997, as the case may
be, or the earliest practicable Business Day thereafter, the Owner Trustee
shall return the amounts held by it hereunder to the Owner Participant,
provided that the Owner Trustee shall have had a reasonable time to
liquidate any Permitted Investments it has been authorized to invest in
pursuant to the preceding paragraph and to obtain the proceeds therefrom in
funds of the type originally received, and the Lessee shall pay interest on
such funds to the Owner Participant at the Debt Rate, such interest to be
payable for the period from and including such Scheduled Delivery Date to
but excluding the date such funds are returned to the Owner Participant in
accordance with the terms hereof; provided that if any such funds are
returned to the Owner Participant after 2:00 p.m. (New York City time) on
any such date, such funds shall be deemed for purposes of this paragraph to
have been returned on the next succeeding Business Day.
The Lessee shall reimburse the Owner Trustee on demand for any loss
incurred by the Owner Trustee as a result of the investment of funds by the
Owner Trustee in accordance with the terms of this Section 3.02(c). Further,
the Lessee shall indemnify the Owner Trustee and hold it harmless from and
against any cost or expense the Owner Trustee may incur as a result of any
investment of funds or transfer of funds referred to herein in accordance with
the terms hereof. The Owner Trustee shall not be liable for failure to invest
such funds except as otherwise provided herein or for any losses incurred on
such investments except for any losses arising out of its own gross negligence
or willful misconduct.
Section 3.03. Owner Participant's Instructions to Owner Trustee.
The Owner Participant agrees that the release of its Commitment in
accordance with the terms hereof shall constitute, without further act,
authorization and direction by the Owner Participant to the Owner Trustee
to take the actions specified in Sections 1.01(a) and (c) of the Trust
Agreement and confirmation that all conditions to closing set forth in
Section 4.02 hereof were either met to the satisfaction of the Owner
Participant or, if not so met, were in any event waived by it.
Section 3.04. Transaction Costs. If the transactions contemplated
by this Article 3 are consummated, as and when any portion of Transaction
Costs becomes due and payable, the Owner Participant shall, as soon as
practicable upon receipt of bills or invoices for the amounts payable make
such payments or, if the Lessee shall have already made such payment, shall
reimburse the Lessee therefor or shall, as soon as practicable, furnish the
Owner Trustee funds sufficient to, and the Owner Trustee shall, as soon as
practicable, make payment of such portion to the Person or Persons entitled to
payment upon presentation to the Owner Trustee of bills or invoices for the
amount of such payment. If such transactions are not consummated, the Lessee
shall pay or cause to be paid all the Transaction Costs; provided, however
that if the failure of such transactions to be consummated is due to (i) a
failure of the Owner Participant to obtain investment approval to proceed with
the transaction contemplated hereby, (ii) a failure to negotiate the Operative
Agreements in good faith by the Owner Participant or (iii) a wrongful act by
the Owner Participant, the Lessee shall have no obligation to pay those costs
and expenses incurred directly by the Owner Participant in connection with the
transactions contemplated by this Agreement described in Sections 10.01(a)(i)
and (xi) hereof, but the Lessee shall be obligated to pay all other
Transaction Costs.
Section 3.05. Postponement of Delivery Date. (a) If the Owner
Participant shall for any reason fail or refuse to make the full amount of its
Commitment available on the Scheduled Delivery Date in accordance with the
terms of Section 3.02 hereof, the Owner Trustee will promptly give each party
confirmed facsimile notice thereof and the Lessee shall postpone the Delivery
Date for a period of not more than five (5) Business Days, but in no event
later than September 30, 1997. If the Owner Participant shall for any reason
fail or refuse to make the full amount of its Commitment available in
accordance with the terms of Section 3.02 hereof on such postponed Delivery
Date, (i) if the Owner Participant fails to make available its Commitment in
breach of its obligations under this Agreement, the Lessee shall cause the
Owner Participant to assign to another equity investor identified by the
Lessee its interest in the Lessor's Estate pursuant to Section 7.03(d) hereof
and (ii) if no such equity investor is identified, or if such equity investor
fails to close such transactions, or if the Owner Participant fails to make
available its Commitment for any other reason than as specified in clause (i)
above, the Owner Participant's interest in the Lessor's Estate shall be
automatically conveyed to the Lessee without any further action, and the
parties hereto shall take such actions as may be advisable or necessary to
give effect to such conveyance. From and after any such conveyance, the
Owner Participant's obligations hereunder and under the other Operative
Agreements shall cease. The exception to the Lessee's indemnity set forth
in clause (viii) of Section 9.01(b) hereof shall not be applicable to any
such conveyance other than a conveyance pursuant to clause (i) above. For
the avoidance of doubt, it is understood and agreed that if for any reason
other than the failure of the Manufacturer or AVSA to deliver the Aircraft,
the Lessee does not enter into the Lease Supplement with the Owner Trustee
on or prior to the Cut-Off Date, the Indenture Trustee and the Pass Through
Trustee agree that the Lessee shall purchase the Aircraft and assume all of
the obligations of the Owner Trustee under the Certificates upon
satisfaction of the requirements set forth in Section 4.02 hereof, as the
same may be modified by the provisions of Section 7.11 hereof and as
otherwise necessary to reflect a full recourse secured aircraft financing
of the Lessee. If the Lessee has identified an equity investor under the
circumstances set forth in clause (i) above, the Owner Participant agrees
to assign its interest in the Lessor's Estate as provided in said clause
(i). In case of any such conveyance pursuant to said clause (i) (but
subject to the satisfaction of the conditions precedent specified herein),
the Indenture Trustee shall release the Debt Portion or such lesser amount
as may then be held in the Collateral Account for application to the
payments contemplated in the last sentence of Section 3.02(a) hereof,
subject to the proviso to Section 3.02(a) hereof.
(b) Release of Obligations. If the Delivery Date has not occurred
on or prior to the Cut-Off Date (i) in the case of the Indenture Trustee and
the Pass Through Trustee, as a result of a failure of the Manufacturer or AVSA
to deliver the Aircraft, or (ii) in the case of the Owner Participant, for any
reason, then, in such event, the Owner Trustee shall not purchase the Aircraft
from AVSA, and the parties to the Operative Agreements shall have no further
obligations or liabilities under any of said Operative Agreements with respect
to the Aircraft, including the obligation of the Owner Participant to
participate in the payment of the Purchase Price, and such documents shall
terminate and have no further force or effect with respect to the Aircraft;
provided, however, that the Lessee shall provide, no later than the Cut-Off
Date, notice of prepayment to the Indenture Trustee and the Certificates shall
be prepaid on the 15th day following the Cut-Off Date as provided in Section
6.02(a)(vi) of the Indenture and Section 17.02(c) hereof and provided further,
that (i) the Lessee's obligation to pay any Transaction Costs as provided in
Section 3.04 hereof (to the extent such section is applicable) and to
indemnify such parties to the extent provided in such documents, shall not be
diminished or modified in any respect and (ii) the obligations of the Owner
Trustee, the Indenture Trustee and the Lessee to return funds and pay
interest, costs, expenses and other amounts thereon or in respect thereof as
provided in Section 3.02 hereof shall continue.
(c) Optional Postponement. Without limiting the provisions of
Section 3.02(c) hereof, the Scheduled Delivery Date may be postponed from time
to time (but in no event shall the Delivery Date be later than the Cut-Off
Date) for any reason, other than pursuant to Section 3.05(a) hereof, if the
Lessee gives the Owner Participant, the Indenture Trustee, the Owner Trustee
and the Pass Through Trustee confirmed facsimile notice (or telephone notice
followed by written confirmation) of such postponement and notice of the date
to which the Delivery Date has been postponed, such notice of postponement to
be received by each party no later than 11:00 a.m. (New York City time) on the
Business Day preceding the Scheduled Delivery Date.
Section 3.06. Closing. The closing with respect to the purchase and
lease of the Aircraft on the Delivery Date shall take place at the offices of
Davis Polk & Wardwell, 450 Lexington Avenue, New York, New York 10017.
ARTICLE 4
CONDITIONS PRECEDENT
Section 4.01. Conditions Precedent (Certificate Closing Date). The
obligations of the Owner Trustee, the Owner Participant, the Indenture
Trustee, the Subordination Agent and the Pass Through Trustee on behalf of
each Pass Through Trust to participate in the transactions contemplated hereby
on the Certificate Closing Date are subject to the fulfillment to the
satisfaction of such party (or waiver by such party), prior to or on the
Certificate Closing Date, of the following conditions precedent (it being
understood that receipt by the Lessee of any of the following documents shall
not be a condition precedent to the obligations of any party):
(a) Certificates. (i) On the Certificate Closing Date, there shall
have been duly issued and delivered by the Owner Trustee to the
Subordination Agent on behalf of the Pass Through Trustee for each Pass
Through Trust, against payment therefor, a Certificate, substantially in
the form set forth in Exhibit B to the Indenture, duly authenticated, dated
the Certificate Closing Date and registered in the name of the
Subordination Agent, in the principal amounts, Series and Maturity, bearing
the interest rate and the other economic terms specified in the Series
Supplements and otherwise as provided in Section 2.04 of the Indenture.
The Pass Through Certificates shall be registered under the Securities Act,
any applicable state securities laws shall have been complied with, and the
Pass Through Agreement shall have been qualified under the Trust Indenture
Act, and (ii) on the Certificate Closing Date, the "Certificates" (as
defined in each of the Related Indentures) have been duly issued and
delivered by the "Owner Trustee" (as defined in each of the Related
Indentures) to the Subordination Agent on behalf of the Pass Through
Trustee for each Pass Through Trust.
(b) Legal Investment. On the Certificate Closing Date, no fact or
condition shall exist under applicable laws or regulations, or
interpretations of any such laws or regulations by applicable regulatory
authorities, which, in the opinion of the Owner Participant or its special
counsel, the Pass Through Trustee, the Subordination Agent or the Indenture
Trustee or their special counsel, would make it illegal for the Owner
Participant, the Lessee, the Owner Trustee, the Pass Through Trustee, the
Subordination Agent or the Indenture Trustee, and no change in
circumstances shall have occurred which would otherwise make it illegal or
otherwise in contravention of guidance issued by regulatory authorities for
the Owner Participant, the Lessee, the Owner Trustee, the Pass Through
Trustee, the Subordination Agent or the Indenture Trustee, to participate
in the transactions to be consummated on the Certificate Closing Date; and
no action or proceeding shall have been instituted nor shall governmental
action before any court, governmental authority or agency be threatened
which in the opinion of counsel for the Owner Participant, the Indenture
Trustee, the Subordination Agent or the Pass Through Trustee is not
frivolous, nor shall any order have been issued or proposed to be issued by
any court, or governmental authority or agency, as of the Certificate
Closing Date, to set aside, restrain, enjoin or prevent the consummation of
any of the transactions contemplated by this Agreement or by any of the
other Operative Agreements.
(c) Underwriters. The Underwriters shall have transferred the funds
specified in Section 2.01(a) hereof and all conditions thereunder shall
have been satisfied or waived.
(d) Documents. This Agreement and the following documents shall
have been duly authorized, executed and delivered by the respective
party or parties thereto, shall each be satisfactory in form and
substance to the Lessee, the Owner Trustee, the Indenture Trustee, the
Pass Through Trustee and the Owner Participant (each acting directly or
by authorization to its special counsel) and shall each be in full force
and effect; there shall not have occurred any default thereunder, or any
event which with the lapse of time or the giving of notice or both would
be a default thereunder, and copies executed or certified as requested
by the Lessee, the Owner Trustee, the Indenture Trustee, the Pass
Through Trustee, the Subordination Agent or the Owner Participant, as
the case may be, of such documents shall have been delivered to the
Owner Participant, the Lessee, the Indenture Trustee, the Pass Through
Trustee, the Subordination Agent and the Owner Trustee (provided that
the sole chattel-paper original of each of the Lease and each Ancillary
Agreement amendatory of the Lease, shall be delivered to the Indenture
Trustee):
(i) the Lease;
(ii) the Indenture;
(iii) in the case of the Owner Participant only, the Tax Indemnity
Agreement;
(iv) the Purchase Agreement and the Consent and Guaranty;
(v) the Purchase Agreement Assignment and the French Pledge
Agreement with respect thereto;
(vi) the GTA;
(vii) the Trust Agreement;
(viii) the Ancillary Agreement I;
(ix) the Ancillary Agreement II;
(x) the Owner Participant Guaranty;
(xi) the Intercreditor Agreement; and
(xii) the Liquidity Facility for each of the Pass Through Trusts for
the Series A Certificates and the Series B Certificates.
(e) Approvals. All approvals and consents of any trustees or
holders of any indebtedness or obligations of the Lessee, which in the
opinion of the Owner Participant, the Pass Through Trustee or the Indenture
Trustee are required in connection with any transaction contemplated by
this Agreement, shall have been duly obtained.
(f) Financing Statements. Uniform Commercial Code ("UCC") financing
statements covering all the security interests (and other interests)
intended to be created by or pursuant to the Granting Clause of the
Indenture shall have been executed and delivered by the Owner Trustee, as
debtor, and by the Indenture Trustee, as secured party, for and on behalf
of the Holders, and such financing statements shall have been duly filed or
duly submitted for filing in the State of Connecticut, and all other
actions shall have been taken which, in the opinion of the Owner
Participant, the Pass Through Trustee and the Underwriters, are necessary
to perfect and protect such security interests and other interests.
(g) Corporate Documents. Except when such Person is the delivering
party, the Owner Participant, the Owner Trustee, the Pass Through Trustee,
the Lessee and the Indenture Trustee (acting directly or by authorization
to its counsel) shall have received the following, in each case in form and
substance satisfactory to it:
(i) a copy of the certificate of incorporation and by-laws of the
Lessee, certified by the Secretary or an Assistant Secretary of the
Lessee as of the Certificate Closing Date, and a copy of the minutes
of the regular meeting of the board of directors of the Lessee,
certified as such as of the Certificate Closing Date by such
Secretary or Assistant Secretary, duly authorizing the lease by the
Lessee of the Aircraft under the Lease and the execution, delivery
and performance by the Lessee of this Agreement, the Lease, the Tax
Indemnity Agreement, the Pass Through Agreement, the Series
Supplements, the other Operative Agreements to which the Lessee is
or is to be a party and each other document to be executed and
delivered by the Lessee in connection with the transactions
contemplated hereby;
(ii) a copy of the articles of incorporation and bylaws of the
Owner Participant and the Owner Participant Guarantor, certified by
the Secretary or an Assistant Secretary of the Owner Participant or
the Owner Participant Guarantor as of the Certificate Closing Date,
and a copy of the resolutions of the board of directors of the Owner
Participant, certified as such as of the Certificate Closing Date by
such Secretary or an Assistant Secretary, authorizing the execution
and delivery by the Owner Participant of this Agreement, the Tax
Indemnity Agreement, the Trust Agreement and the other Operative
Agreements to which the Owner Participant is or is to be a party and
each other document to be executed and delivered by the Owner
Participant in connection with the transactions contemplated hereby,
and a copy of the resolutions of the board of directors of the Owner
Participant Guarantor, certified as such as of the Certificate
Closing Date by the Secretary or an Assistant Secretary, authorizing
the execution and delivery by the Owner Participant Guarantor of the
Owner Participant Guaranty and the other Operative Agreements to
which such Owner Participant Guarantor is or is to be a party and
each other document to be executed and delivered by the Owner
Participant Guarantor in connection with the transactions
contemplated hereby;
(iii) a copy of the articles of association and by-laws and other
instruments of the Owner Trustee, certified by the Secretary or an
Assistant Secretary of the Owner Trustee as of the Certificate
Closing Date (or other like instruments satisfactory to the Lessee
and the Owner Participant) and evidence authorizing the execution,
delivery and performance by the Owner Trustee in its individual
capacity or as Owner Trustee, as the case may be, of this Agreement,
the Trust Agreement and each of the other Operative Agreements to
which it is or is to be a party, whether in its individual capacity
or as Owner Trustee, and each other document to be executed and
delivered by the Owner Trustee in connection with the transactions
contemplated hereby;
(iv) a copy of the articles of association and by-laws and
other instruments of the Indenture Trustee, certified by the
Secretary or an Assistant Secretary of the Indenture Trustee as of
the Certificate Closing Date (or other like instruments
satisfactory to the Lessee and the Owner Participant) and evidence
authorizing the execution, delivery and performance by the
Indenture Trustee of each of this Agreement, the Indenture and
each of the other Operative Agreements to which it is or is to be
a party, and each other document to be executed and delivered by
the Indenture Trustee in connection with the transactions
contemplated hereby;
(v) a copy of the articles of association and by-laws and other
instruments of the Pass Through Trustee, certified by the Secretary
or an Assistant Secretary of the Pass Through Trustee as of the
Certificate Closing Date (or other like instruments satisfactory to
the Lessee and the Owner Participant) and evidence authorizing the
execution, delivery and performance by the Pass Through Trustee of
this Agreement, the Pass Through Agreement, the Series Supplements
and each of the other Operative Agreements to which it is or is to be
a party, and each other document to be executed and delivered by the
Pass Through Trustee in connection with the transactions contemplated
hereby;
(vi) a copy of the articles of association and by-laws and other
instruments of the Subordination Agent, certified by the Secretary or
an Assistant Secretary of the Subordination Agent as of the
Certificate Closing Date (or other like instruments satisfactory to
the Lessee and the Owner Participant) and evidence authorizing the
execution, delivery and performance by the Subordination Agent of
this Agreement, the Intercreditor Agreement and each of the other
Operative Agreements to which it is or is to be a party, and each
other document to be executed and delivered by the Subordination
Agent in connection with the transactions contemplated hereby; and
(vii) such other documents, evidences, materials, and information
with respect to the Lessee, the Owner Trustee, the Indenture Trustee,
the Pass Through Trustee and the Owner Participant as the Indenture
Trustee, the Pass Through Trustee or the Owner Participant may
reasonably request in order to establish the consummation of the
transactions contemplated by this Agreement.
(h) Officer's Certificate of Lessee. On the Certificate Closing
Date, the following statements shall be true, and the Owner Participant,
the Owner Trustee, the Pass Through Trustee and the Indenture Trustee shall
have received a certificate signed by the Vice President and Treasurer or
any other duly authorized officer of the Lessee, dated the Certificate
Closing Date, stating that:
(i) the representations and warranties of the Lessee contained in
the Operative Agreements to which it is a party (excluding the Tax
Indemnity Agreement) and in any certificate delivered pursuant hereto
or thereto are true and correct on and as of the Certificate Closing
Date as though made on and as of such date (except to the extent that
such representations and warranties relate solely to an earlier date,
in which case such certificate shall state that such representations
and warranties were true and correct on and as of such earlier date);
(ii) except for the matters described (i) under "Legal
Proceedings" in the Lessee's Annual Report on Form 10-K for the
fiscal year ended May 31, 1996 (as updated by Note 7 to the financial
statements included in the Lessee's Quarterly Reports on Form 10-Q
for the fiscal quarters ended August 31, 1996, November 30, 1996 and
February 28, 1997) and (ii) in the Lessee's Current Reports on Form
8-K dated June 7, 1996, August 16, 1996 and March 4, 1997, as to
which such officer will make no certification concerning the
liability of the Lessee (if any), or the effect of any adverse
determination upon the consolidated financial condition, business or
operations of the Lessee, no material adverse change has occurred in
the financial condition, business or operations of the Lessee from
that shown in the audited financial statements of the Lessee as of
May 31, 1996 and nothing has occurred which will, in the judgment of
such officer, materially adversely affect the ability of the Lessee
to carry on its business or to perform its obligations under this
Agreement and each other Operative Agreement to which it is or is to
be a party; and
(iii) no event has occurred and is continuing, or would result
from the purchase, sale, mortgage, or lease of the Aircraft, which
constitutes an Event of Loss (or event which with the passage of time
would become an Event of Loss) with respect to the Airframe or any
Engine, or a Default or an Event of Default under the Lease.
(i) Officer's Certificate of Owner Participant and Owner Participant
Guarantor. On the Certificate Closing Date, the following statements shall
be true, and the Lessee, the Pass Through Trustee, the Owner Trustee and
the Indenture Trustee shall have received a certificate from (i) the Owner
Participant, signed by a duly authorized officer of the Owner Participant
dated the Certificate Closing Date, stating that:
(i) the representations and warranties of the Owner Participant
contained in this Agreement, the Trust Agreement and any other
Operative Agreement to which it is a party (excluding the Tax
Indemnity Agreement) and in any certificate delivered pursuant hereto
or thereto, are true and correct on and as of the Certificate Closing
Date as though made on and as of such date (except to the extent that
such representations and warranties relate solely to an earlier date,
in which case such certificate shall state that such representations
and warranties were true and correct on and as of such earlier date);
(ii) no Lessor's Liens attributable to the Owner Participant
exist; and
(iii) no event has occurred and is continuing which constitutes
or, with notice or lapse of time or both would constitute, due to any
action or omission on the part of the Owner Participant, an Indenture
Event of Default other than an Indenture Event of Default
attributable to a Lease Event of Default.
and (ii) from the Owner Participant Guarantor, signed by a duly authorized
officer of such Owner Participant Guarantor dated the Certificate Closing
Date, stating that the representations and warranties of such Owner
Participant Guarantor contained in its Owner Participant Guaranty and in
any certificate delivered at the closing pursuant thereto are true and
correct on and as of the Certificate Closing Date as though made on and as
of such date (except to the extent that such representations and warranties
relate solely to an earlier date, in which case such certificate shall
state that such representations and warranties were true and correct on and
as of such earlier date).
(j) Other Officer's Certificates. On the Certificate Closing Date,
the following statements shall be true, and the Lessee, the Pass Through
Trustee, the Owner Trustee, the Subordination Agent and the Indenture
Trustee shall have received a certificate from each of SSB and the Owner
Trustee (in the case of the Lessee, the Pass Through Trustee, the
Subordination Agent and the Indenture Trustee), FSB and the Indenture
Trustee (in the case of the Lessee, the Pass Through Trustee, the
Subordination Agent and the Owner Trustee), FSB and the Pass Through
Trustee (in the case of the Lessee, the Indenture Trustee, the
Subordination Agent and the Owner Trustee) and FSB and the Subordination
Agent (in the case of the Lessee, the Pass Through Trustee, the Indenture
Trustee and the Owner Trustee), signed by a duly authorized officer of SSB
and FSB, respectively, dated the Certificate Closing Date, stating with
respect to SSB and the Owner Trustee, with respect to FSB and the Indenture
Trustee, with respect to FSB and the Pass Through Trustee or with respect
to FSB and the Subordination Agent, as the case may be, that:
(i) the representations and warranties of SSB in its individual
capacity and as Owner Trustee, of FSB in its individual capacity and
as Indenture Trustee, of FSB in its individual capacity and as Pass
Through Trustee or of FSB in its individual capacity and as
Subordination Agent contained in this Agreement, the Lease, the Trust
Agreement and the Indenture and in any certificate delivered pursuant
hereto or thereto are true and correct on and as of the Certificate
Closing Date as though made on and as of such date (except to the
extent that such representations and warranties relate solely to
an earlier date, in which case such certificate shall state that
such representations and warranties were true and correct on and
as of such earlier date);
(ii) to the best of its knowledge, no event has occurred and is
continuing, which constitutes or which, but for the lapse of time or
the giving of notice, or both, would constitute, due to any action or
omission on the part of SSB in its individual capacity or as Owner
Trustee, of FSB in its individual capacity or as Indenture Trustee,
of FSB in its individual capacity or as Pass Through Trustee, an
Event of Default or an Indenture Event of Default or of FSB in its
individual capacity or as Subordination Agent, an Event of Default or
an Indenture Event of Default; and
(iii) there are no Lessor's Liens attributable to the Owner
Trustee or SSB and no Indenture Trustee's Liens.
(k) Legal Opinions. The Owner Participant, the Underwriters, the
Lessee, the Owner Trustee, the Pass Through Trustee and the Indenture
Trustee (acting directly or by authorization to its special counsel) shall
have received from the following counsel their respective legal opinions in
each case satisfactory to the Owner Participant, the Underwriters, the
Lessee, the Owner Trustee, the Pass Through Trustee or the Indenture
Trustee, as the case may be, as to scope and substance (and covering such
other matters as the recipient may reasonably request) and dated the
Certificate Closing Date:
(i) George W. Hearn, Vice President - Law of the Lessee, in the
form of Exhibit A(1)(a)(i) hereto and addressed to the Underwriters,
the Owner Participant, the Owner Trustee, the Pass Through Trustee,
each Liquidity Provider and the Indenture Trustee;
(ii) Simpson Thacher & Bartlett, special counsel for the Owner
Participant and the Owner Participant Guarantor, in the form of
Exhibit A(2)(a) hereto and the General Counsel's Office of the Owner
Participant and the Owner Participant Guarantor, in the form of
Exhibit A(2)(b) hereto, each addressed to the Underwriters, the Owner
Participant, the Indenture Trustee, the Owner Trustee, the Pass
Through Trustee, each Liquidity Provider and the Lessee;
(iii) Ray, Quinney & Nebeker, special counsel for the Indenture
Trustee, in the form of Exhibit A(3) hereto and addressed to the
Underwriters, the Owner Participant, the Indenture Trustee, the Owner
Trustee, the Pass Through Trustee, each Liquidity Provider and the
Lessee;
(iv) Bingham, Dana & Gould LLP, special counsel for the Owner
Trustee, in the form of Exhibit A(4)(a)(i) hereto and addressed to
the Underwriters, the Owner Participant, the Indenture Trustee, the
Owner Trustee, the Pass Through Trustee, each Liquidity Provider and
the Lessee;
(v) Davis Polk & Wardwell, special counsel for the Lessee, in the
form of Exhibit A(1)(b)(i) hereto and addressed to the Underwriters,
the Owner Participant, the Indenture Trustee, the Owner Trustee, the
Pass Through Trustee, each Liquidity Provider and the Lessee;
(vi) Ray, Quinney & Nebeker, special counsel for the Pass Through
Trustee and the Subordination Agent, in the form of Exhibit A(5)
hereto and addressed to the Underwriters, the Owner Participant, the
Indenture Trustee, the Owner Trustee, the Pass Through Trustee, each
Liquidity Provider and the Lessee; and
(vii) Johan Tyteca, Esq., manager of the Legal Department of
Kredietbank N.V., in the form of Exhibit A(6)(a) hereto, and Milbank,
Tweed, Hadley & McCloy, special counsel for the Liquidity Providers,
in the form of Exhibit A(6)(b) hereto, each addressed to the Pass
Through Trustee, the Subordination Agent, each Liquidity Provider and
the Lessee.
(l) No Indenture Event of Default. No Indenture Event of Default or
Indenture Default has occurred and is continuing.
(m) Event of Default; Default; Event of Loss. No Default or Event
of Default under the Lease or Event of Loss or event, which with the
passage of time or if continued unremedied or unaltered would constitute an
Event of Loss, shall have occurred or be in existence.
(n) Other Agreements. The Lessee and the Pass Through Trustee
shall have entered into the Pass Through Agreement and the Series
Supplements, all conditions to the effectiveness of each thereof shall
have been satisfied or waived, and the Pass Through Certificates shall
have been issued pursuant to the Series Supplements. The Lessee and the
Underwriters shall have entered into the Underwriting Agreement, all
conditions to the effectiveness thereof shall have been satisfied or
waived, and the Pass Through Certificates shall have been delivered
pursuant to the Underwriting Agreement. All conditions to the
effectiveness of each Liquidity Facility shall have been satisfied or
waived.
(o) Payment of Taxes. (A) All taxes, fees, charges, assessments,
costs and other expenses then due and payable in connection with the
execution, delivery, recording and filing of all financing statements
referred to in subparagraph (f) of this Section 4.01, or in connection with
the issuance of the Certificates shall have been duly paid or caused to be
paid in full; and (B) all sales or use taxes and duties related to the
consummation of the transactions contemplated by the Operative Agreements
on the Certificate Closing Date which are then due and payable shall have
been duly paid in full.
(p) Governmental Compliance. All appropriate action required to
have been taken by the FAA, the SEC, or any governmental or political
agency, subdivision or instrumentality of the United States, prior to the
Certificate Closing Date in connection with the transactions contemplated
by this Agreement shall have been taken, and all orders, permits, waivers,
authorizations, exemptions and approvals (collectively "permits") of such
entities required to be in effect on the Certificate Closing Date in
connection with the transactions contemplated by this Agreement shall have
been issued, and all such permits shall be in full force and effect on the
Certificate Closing Date.
(q) Section 131.3 of the New York State Banking Law Filing. SSB
shall have delivered evidence of its filing made with the New York
Superintendent of Banking pursuant to Section 131.3 of the New York State
Banking Law.
Section 4.02. Conditions Precedent (Delivery Date). Subject to the
last paragraph of this Section 4.02, the obligations of the Owner Trustee, the
Owner Participant, the Indenture Trustee, the Subordination Agent and the Pass
Through Trustee on behalf of each Pass Through Trust to participate in the
transactions contemplated hereby on the Delivery Date are subject to the
fulfillment to the satisfaction of each party (or waiver by such party), prior
to or on the Delivery Date, of the following conditions precedent (it being
understood that receipt by the Lessee of any of the following documents shall
not be a condition precedent to the obligation of any party):
(a) Notice, Etc. Each party hereto shall have received a Delivery
Notice pursuant to Section 3.01 hereof at least three (3) Business Days
prior to the Delivery Date.
(b) Legal Investment. No change shall have occurred after the
Certificate Closing Date and on or prior to the Delivery Date in applicable
laws or regulations, or interpretations of any such laws or regulations by
applicable regulatory authorities, which, in the opinion of the Owner
Participant or its special counsel, the Pass Through Trustee, the
Subordination Agent or the Indenture Trustee or their special counsel,
would make it illegal for the Owner Participant, the Lessee, the Owner
Trustee, the Pass Through Trustee, the Subordination Agent or the Indenture
Trustee, and no change in circumstances shall have occurred which would
otherwise make it illegal or otherwise in contravention of guidance issued
by regulatory authorities for the Owner Participant, the Lessee, the Owner
Trustee, the Pass Through Trustee, the Subordination Agent or the Indenture
Trustee, to participate in the transactions to be consummated on the
Delivery Date; and no action or proceeding shall have been instituted nor
shall governmental action before any court, governmental authority or
agency be threatened which in the opinion of counsel for the Owner
Participant, the Indenture Trustee, the Subordination Agent or the Pass
Through Trustee is not frivolous, nor shall any order have been issued or
proposed to be issued by any court, or governmental authority or agency, as
of the Delivery Date, to set aside, restrain, enjoin or prevent the
consummation of any of the transactions contemplated by this Agreement or
by any of the other Operative Agreements.
(c) Documents. The documents referred to in Section 4.01(d) hereof
shall each be in full force and effect and the following documents shall
have been duly authorized, executed and delivered by the respective party
or parties thereto, shall each be satisfactory in form and substance to the
Lessee, the Owner Trustee, the Indenture Trustee, the Pass Through Trustee,
the Subordination Agent and the Owner Participant (each acting directly or
by authorization to its special counsel) and shall each be in full force
and effect; there shall not have occurred any default thereunder, or any
event which with the lapse of time or the giving of notice or both would be
a default thereunder, and copies executed or certified as requested by the
Lessee, the Owner Trustee, the Indenture Trustee, the Pass Through Trustee
or the Owner Participant, as the case may be, of such documents shall have
been delivered to the Owner Participant, the Lessee, the Indenture Trustee,
the Pass Through Trustee and the Owner Trustee (provided that the sole
chattel-paper original of the Lease Supplement shall be delivered to the
Indenture Trustee):
(i) the Lease Supplement covering the Aircraft, dated the Delivery
Date;
(ii) an Indenture and Security Agreement Supplement covering the
Aircraft, dated the Delivery Date;
(iii) the Invoice;
(iv) AVSA's FAA Bill of Sale, AVSA's Warranty Bill of Sale and the
Airbus Guaranty;
(v) the Consent and Agreement and the AVSA Consent and Agreement;
and
(vi) the Engine Warranty Assignment and the Engine Consent.
(d) Legal Opinions. The Owner Participant, the Underwriters, the
Lessee, the Owner Trustee, the Pass Through Trustee and the Indenture
Trustee (acting directly or by authorization to its special counsel) shall
have received from the following counsel their respective legal opinions in
each case satisfactory to the Owner Participant, the Underwriters, the
Lessee, the Owner Trustee, the Pass Through Trustee or the Indenture
Trustee, as the case may be, as to scope and substance (and covering such
other matters as the recipient may reasonably request) and dated the
Delivery Date:
(i) George W. Hearn, Vice President - Law of the Lessee, in the
form of Exhibit A(1)(a)(ii) hereto and addressed to the Underwriters,
the Owner Participant, the Owner Trustee, the Pass Through Trustee,
each Liquidity Provider and the Indenture Trustee;
(ii) Davis Polk & Wardwell, special counsel for the Lessee, in the
form of Exhibit A(1)(b)(ii) hereto and addressed to the Underwriters,
the Owner Participant, the Indenture Trustee, the Owner Trustee, the
Pass Through Trustee, each Liquidity Provider and the Lessee;
(iii) Bingham, Dana & Gould LLP, special counsel for the Owner
Trustee, in the form of Exhibit A(4)(a)(ii) hereto and addressed to
the Underwriters, the Owner Participant, the Indenture Trustee, the
Owner Trustee, the Pass Through Trustee, each Liquidity Provider and
the Lessee;
(iv) counsel for the Engine Manufacturer, in the form of Exhibit
A(7) hereto and addressed to the Underwriters, the Owner Participant,
the Indenture Trustee, the Owner Trustee, the Pass Through Trustee,
each Liquidity Provider and the Lessee;
(v) Clifford Chance, special counsel for AVSA and the
Manufacturer, in the form of Exhibit A(8) hereto and addressed to the
Underwriters, the Owner Participant, the Indenture Trustee, the Owner
Trustee, the Pass Through Trustee, each Liquidity Provider and the
Lessee;
(vi) Daugherty, Fowler & Peregrin, special aviation counsel, in
the form of Exhibit A(9) hereto and addressed to the Underwriters,
the Owner Participant, the Indenture Trustee, the Owner Trustee, the
Pass Through Trustee, each Liquidity Provider and the Lessee; and
(vii) in the case of the Owner Participant only, Simpson
Thacher & Bartlett, tax counsel to the Owner Participant,
addressed to the Owner Participant, with respect to certain tax
matters.
(e) Title, Airworthiness and Registration. On the Delivery Date,
the following statements shall be true, and the Owner Participant, the
Indenture Trustee, the Pass Through Trustee and the Owner Trustee shall
have received evidence from the Lessee reasonably satisfactory to the
Owner Participant, the Indenture Trustee, the Pass Through Trustee and
the Owner Trustee to the effect that:
(i) the Owner Trustee has good and marketable title (subject to
filing and recording of AVSA's FAA Bill of Sale with the Aeronautics
Authority) to the Aircraft, free and clear of Liens, except the
rights of the Owner Trustee and the Lessee under the Lease and the
Lease Supplement covering the Aircraft, the rights of the Indenture
Trustee under the Indenture and the beneficial interest of the Owner
Participant created by the Trust Agreement and the interest of the
Certificate Holders created by the Indenture and the Indenture and
Security Agreement Supplement covering the Aircraft, which evidence
shall include AVSA's FAA Bill of Sale, AVSA's Warranty Bill of Sale
and the Airbus Guaranty;
(ii) the Aircraft has been duly certificated by the Aeronautics
Authority as to type and airworthiness in accordance with the terms
of the Operative Agreements;
(iii) AVSA's FAA Bill of Sale, the Lease and Lease Supplement
covering the Aircraft, the Indenture and the Indenture and Security
Agreement Supplement covering the Aircraft and the Trust Agreement
shall have been duly filed for recordation (or shall be in the
process of being so duly filed for recordation) with the Aeronautics
Authority pursuant to the Transportation Code; and
(iv) application to the Aeronautics Authority for registration of
the Aircraft in the name of the Owner Trustee shall have been duly
made and the Lessee shall have temporary or permanent authority to
operate the Aircraft.
(f) Financing Statements. A UCC notice filing describing the Lease
as a lease shall have been executed and delivered by the Owner Trustee, as
lessor, and the Lessee, as lessee (which filing shall name the Indenture
Trustee as assignee of the Owner Trustee) and shall have been duly filed in
the State of Tennessee.
(g) Payments. The Owner Participant shall have made available its
Commitment to the Owner Trustee and the other payments contemplated by
Section 3.02 hereof shall have been made.
(h) Report of Aircraft Expert. The Owner Participant shall have
received a report prepared by BK Associates, Inc. addressed to the Owner
Participant (with an abbreviated report to the Lessee) which report shall
be in form and substance satisfactory to the Owner Participant to the
effect, among other things, that on the Delivery Date:
(i) (A) the estimated fair market value of the Aircraft net of
any cost to the Owner Participant or the Owner Trustee of return at
the end of the Basic Term and any Fixed Renewal Term (determined
without including in such value any increase or decrease for
inflation or deflation during the Term) is equal to or greater than
20% of the Purchase Price for the Aircraft and (B) at least 20% of
the useful economic life of the Aircraft will be remaining at the end
of the Basic Term and any Fixed Renewal Term;
(ii) the estimated useful life of the Aircraft is at least 133% of
the Basic Term and any Fixed Renewal Term;
(iii) the Purchase Price of the Aircraft is no greater than the
fair market value of the Aircraft on the Delivery Date;
(iv) on the Delivery Date, the Aircraft will not require any
modifications, improvements or additions in order to be rendered
complete for its intended purpose by the Lessee;
(v) the amount payable by the Lessee upon the exercise of its
purchase option pursuant to Section 4.02(a)(F) of the Lease equals or
exceeds the currently estimated Fair Market Value of the Aircraft on
such date (taking into account inflation or deflation to such date);
and
(vi) the Aircraft is not limited use property.
(i) Insurance. Each of the Indenture Trustee, the Pass Through
Trustee, the Owner Trustee and the Owner Participant shall have received
such evidence as it deems appropriate, including, without limitation, an
independent insurance broker's report, together with certificates of
insurance from such broker, in form and substance satisfactory to the
Indenture Trustee, the Pass Through Trustee, the Owner Trustee and the
Owner Participant to establish that the insurance required by Article 13 of
the Lease is in effect.
(j) Payment of Taxes. (A) All taxes, fees, charges, assessments,
costs and other expenses then due and payable in connection with the
execution, delivery, recording and filing of all financing statements and
the documents and instruments referred to in subparagraphs (e) and (f) of
this Section 4.02, or in connection with the purchase of the Aircraft by
the Owner Trustee and the making by the Owner Participant of its equity
investment shall have been duly paid or caused to be paid in full; and (B)
all sales or use taxes and duties related to the consummation of the
transactions contemplated by the Operative Agreements on the Delivery Date
which are then due and payable shall have been duly paid in full.
(k) No Indenture Event of Default. No Indenture Event of Default or
Indenture Default has occurred and is continuing.
(l) Event of Default; Default; Event of Loss. No Default or Event
of Default under the Lease (assuming, for this purpose, that the provisions
of Article 16 of the Lease had become operative on the Certificate Closing
Date and not the Delivery Date) or Event of Loss or event, which with the
passage of time or if continued unremedied or unaltered would constitute an
Event of Loss, shall have occurred or be in existence.
(m) Governmental Compliance. All appropriate action required to
have been taken by the FAA, the SEC, or any governmental or political
agency, subdivision or instrumentality of the United States, prior to the
Delivery Date in connection with the transactions contemplated by this
Agreement shall have been taken, and all orders, permits, waivers,
authorizations, exemptions and approvals (collectively "permits") of such
entities required to be in effect on the Delivery Date in connection with
the transactions contemplated by this Agreement shall have been issued, and
all such permits shall be in full force and effect on the Delivery Date.
(n) Officer's Certificate of Lessee. On the Delivery Date, the
following statements shall be true, and the Owner Participant, the Owner
Trustee, the Pass Through Trustee and the Indenture Trustee shall have
received a certificate signed by the Vice President and Treasurer or any
other duly authorized officer of the Lessee, dated the Delivery Date,
stating that:
(i) the representations and warranties of the Lessee contained in
the Operative Agreements to which it is a party (excluding the Tax
Indemnity Agreement) and in any certificate delivered pursuant hereto
or thereto are true and correct on and as of the Delivery Date as
though made on and as of such date (except to the extent that such
representations and warranties relate solely to an earlier date, in
which case such certificate shall state that such representations and
warranties were true and correct on and as of such earlier date);
(ii) except for the matters described (i) under "Legal
Proceedings" in the Lessee's Annual Report on Form 10-K for the
fiscal year ended May 31, 1996 (as updated by Note 7 to the financial
statements included in the Lessee's Quarterly Reports on Form 10-Q
for the fiscal quarters ended August 31, 1996, November 30, 1996 and
February 28, 1997) and (ii) in the Lessee's Current Reports on Form
8-K dated June 7, 1996, August 16, 1996 and March 4, 1997, as to
which such officer will make no certification concerning the
liability of the Lessee (if any), or the effect of any adverse
determination upon the consolidated financial condition, business or
operations of the Lessee, no material adverse change has occurred in
the financial condition, business or operations of the Lessee from
that shown in the audited financial statements of the Lessee as of
May 31, 1996 and nothing has occurred which will, in the judgment of
such officer, materially adversely affect the ability of the Lessee
to carry on its business or to perform its obligations under this
Agreement and each other Operative Agreement to which it is or is to
be a party; and
(iii) no event has occurred and is continuing, or would result
from the purchase, sale, mortgage, or lease of the Aircraft, which
constitutes an Event of Loss (or event which with the passage of time
would become an Event of Loss) with respect to the Airframe or any
Engine, or a Default or an Event of Default under the Lease.
(o) Officer's Certificate of Owner Participant and Owner Participant
Guarantor. On the Delivery Date, the following statements shall be true,
and the Lessee, the Pass Through Trustee, the Owner Trustee and the
Indenture Trustee shall have received a certificate from the Owner
Participant, signed by a duly authorized officer of (i) the Owner
Participant dated the Delivery Date, stating that:
(i) the representations and warranties of the Owner Participant
contained in this Agreement, the Trust Agreement and any other
Operative Agreement (excluding the Tax Indemnity Agreement) to which
it is a party and in any certificate delivered pursuant hereto or
thereto, are true and correct on and as of the Delivery Date as
though made on and as of such date (except to the extent that such
representations and warranties relate solely to an earlier date, in
which case such certificate shall state that such representations and
warranties were true and correct on and as of such earlier date);
(ii) no Lessor's Liens attributable to the Owner Participant
exist; and
(iii) no event has occurred and is continuing which constitutes
or, with notice or lapse of time or both would constitute, due to any
action or omission on the part of the Owner Participant, an Indenture
Event of Default other than an Indenture Event of Default
attributable to a Lease Event of Default.
and (ii) from the Owner Participant Guarantor, signed by a duly authorized
officer of such Owner Participant Guarantor dated the Certificate Closing
Date, stating that the representations and warranties of such Owner
Participant Guarantor contained in its Owner Participant Guaranty and in
any certificate delivered at the closing pursuant thereto are true and
correct on and as of the Certificate Closing Date as though made on and as
of such date (except to the extent that such representations and warranties
relate solely to an earlier date, in which case such certificate shall
state that such representations and warranties were true and correct on and
as of such earlier date).
(p) Other Officer's Certificates. On the Delivery Date, the
following statements shall be true, and the Owner Participant, the Lessee,
the Pass Through Trustee, the Owner Trustee, the Subordination Agent and
the Indenture Trustee shall have received a certificate from each of SSB
and the Owner Trustee (in the case of the Lessee, the Pass Through Trustee,
the Owner Participant, the Subordination Agent and the Indenture Trustee),
FSB and the Indenture Trustee (in the case of the Lessee, the Pass Through
Trustee, the Owner Participant, the Subordination Agent and the Owner
Trustee), FSB and the Pass Through Trustee (in the case of the Lessee, the
Indenture Trustee, the Owner Participant, the Subordination Agent and the
Owner Trustee) and FSB and the Subordination Agent (in the case of the
Lessee, the Indenture Trustee, the Owner Participant, the Pass Through
Trustee and the Owner Trustee) signed by a duly authorized officer of SSB
and FSB, respectively, dated the Delivery Date, stating with respect to SSB
and the Owner Trustee, with respect to FSB and the Indenture Trustee, with
respect to FSB and the Pass Through Trustee or with respect to FSB and the
Subordination Agent, as the case may be, that:
(i) the representations and warranties of SSB in its individual
capacity and as Owner Trustee, of FSB in its individual capacity and
as Indenture Trustee, of FSB in its individual capacity and as Pass
Through Trustee or of FSB in its individual capacity and as
Subordination Agent contained in this Agreement, the Lease, the Trust
Agreement and the Indenture and in any certificate delivered pursuant
hereto or thereto are true and correct on and as of the Delivery Date
as though made on and as of such date (except to the extent that such
representations and warranties relate solely to an earlier date, in
which case such certificate shall state that such representations and
warranties were true and correct on and as of such earlier date);
(ii) to the best of its knowledge, no event has occurred and is
continuing, which constitutes or which, but for the lapse of time or
the giving of notice, or both, would constitute, due to any action or
omission on the part of SSB in its individual capacity or as Owner
Trustee, of FSB in its individual capacity or as Indenture Trustee,
of FSB in its individual capacity or as Pass Through Trustee, an
Event of Default or an Indenture Event of Default or of FSB in its
individual capacity or as Subordination Agent, an Event of Default or
an Indenture Event of Default; and
(iii) there are no Lessor's Liens attributable to the Owner
Trustee or SSB and no Indenture Trustee's Liens affecting the Trust
Indenture Estate or the Lessor's Estate or any part thereof.
(q) Release of Debt Portion. The Indenture Trustee shall have
released the Debt Portion from (or such lesser amount as may then be held
in) the Collateral Account or if the proviso to Section 3.02(a) is
applicable, then the Lessee shall have made the payment required to be made
to AVSA pursuant to such proviso.
Notwithstanding anything else to the contrary in this Section 4.02, it shall
not be a condition precedent to the obligations of the Indenture Trustee, the
Pass Through Trustee or the Subordination Agent that the conditions in Section
4.02(n) and (o) be satisfied if the Lessee certifies that the failure to
fulfill such condition precedent is not reasonably likely to materially
adversely affect the holders of Pass Through Certificates and, in the event of
such failure, there has been delivered to the Indenture Trustee written
confirmation from both Moody's and S&P of the rating on any class of Pass
Through Certificates.
Section 4.03. Opinion of Special Aviation Counsel Upon Registration.
Promptly upon the registration of the Aircraft and the filing and, where
appropriate, recordation pursuant to the Transportation Code, of AVSA's FAA
Bill of Sale, the Trust Agreement, the Lease (with the Lease Supplement
covering the Aircraft, the Indenture and the Indenture and Security Agreement
Supplement covering the Aircraft attached as exhibits) and the Indenture (with
the Indenture and Security Agreement Supplement covering the Aircraft attached
as an exhibit), the Lessee shall cause Special Aviation Counsel to deliver to
the Owner Participant, the Lessee, the Owner Trustee, the Pass Through Trustee
and the Indenture Trustee an opinion as to (i) the due registration of the
Aircraft in the name of the Owner Trustee, (ii) the due recording pursuant to
the Transportation Code of AVSA's FAA Bill of Sale, the Trust Agreement, the
Lease (with such Lease Supplement, the Indenture and such Indenture and
Security Agreement Supplement attached as exhibits), and the Indenture (with
such Indenture and Security Agreement Supplement attached as an exhibit), and
(iii), subject to customary qualifications, the lack of any intervening
documents with respect to the Aircraft.
ARTICLE 5
CONDITIONS PRECEDENT TO LESSEE'S OBLIGATIONS
Section 5.01. Conditions Precedent to Lessee's Obligations. The
Lessee's obligation to participate in the transactions contemplated hereby on
the Certificate Closing Date is subject to the conditions that, prior to or on
the Certificate Closing Date, the Lessee shall have received the certificates
and other documents which are referred to in, or the opinions to be addressed
to it under, as the case may be, paragraphs (d), (g)(ii)-(v), (i), (j),
(k)(ii)-(vi) of Section 4.01 hereof and the Underwriters shall have made
available the amounts required to be paid by them pursuant to Section 2.01
hereof, and the Lessee's obligation to participate in the transactions
contemplated hereby on the Delivery Date, is subject to the conditions that,
on or prior to the Delivery Date, the Lessee shall have received the documents
which are referred to in, or the opinions to be addressed to it under, as the
case may be, paragraphs (c) and (d)(ii)-(v) of Section 4.02 hereof and the
Indenture Trustee shall have released the Debt Portion from (or such lesser
amount as may then be held in) the Collateral Account.
ARTICLE 6
LESSEE'S REPRESENTATIONS, WARRANTIES AND COVENANTS
Section 6.01. Lessee's Representations and Warranties. The Lessee
represents and warrants to the Owner Participant, the Owner Trustee (in its
individual capacity and as Owner Trustee), the Pass Through Trustee (in its
individual capacity and as Pass Through Trustee), each Liquidity Provider and
the Indenture Trustee (in its individual capacity and as Indenture Trustee)
that, on the date hereof and as of the Certificate Closing Date and the
Delivery Date (unless any such representation is specifically made as of one
date):
(a) the Lessee is a corporation duly organized and validly existing
and is in good standing under the laws of the State of Delaware with its
principal place of business and chief executive office (as such terms are
used in Article 9 of the Uniform Commercial Code) in Memphis, Tennessee,
and is duly qualified to do business as a foreign corporation and is in
good standing in all jurisdictions in which it has intrastate routes, or
offices or major overhaul facilities or in which other activities of the
Lessee require such qualification;
(b) the Lessee has full power, authority and legal right to conduct
its business and operations as currently conducted and to own or hold under
lease its Properties and to enter into and perform its obligations under
this Agreement, the other Operative Agreements to which it is a party, the
Pass Through Agreement and the Series Supplements (the "Lessee Documents");
(c) the Lessee is an "air carrier" within the meaning of the
Transportation Code and a holder of a certificate under Sections 41102(a)
and 41103 of the Transportation Code and a "citizen of the United States"
within the meaning of Section 40102(a)(15) of the Transportation Code
holding an "air carrier operating certificate" issued under Chapter 447 of
the Transportation Code for aircraft capable of carrying ten (10) or more
individuals or 6,000 pounds or more of cargo, and each such certificate is
in full force and effect;
(d) the Lessee possesses all necessary certificates, franchises,
licenses, permits, rights and concessions and consents (collectively
"permits") which are material to the operation of the routes flown by it
and the conduct of its business and operations as currently conducted and
each such permit is in full force and effect;
(e) the execution, delivery and performance of the Lessee Documents
by the Lessee have been duly authorized by all necessary corporate action
on the part of the Lessee and do not require any stockholder approval, or
approval or consent of any trustee or holder of any indebtedness or
obligations of the Lessee, and each such document has been duly executed
and delivered or, in the case of the Operative Agreements identified in
Section 4.02(c) hereof, will on the Delivery Date be executed and delivered
by the Lessee and constitutes (or will constitute, as the case may be) the
legal, valid and binding obligations of the Lessee enforceable against it
in accordance with the terms thereof except as such enforceability may be
limited by bankruptcy, insolvency, moratorium, reorganization or other
similar laws or equitable principles of general application to or affecting
the enforcement of creditors' rights generally (regardless of whether
enforceability is considered in a proceeding in equity or at law);
(f) no authorization, consent or approval of or other action by, and
no notice to or filing with, any United States federal or state
governmental authority or regulatory body (other than the SEC) is required
for the execution, delivery or performance by the Lessee of the Lessee
Documents or for the use and maintenance of the Aircraft except for such
registrations, applications and recordings referred to in the opinions of
Special Aviation Counsel delivered or to be delivered pursuant to Sections
4.02(d)(iii) and 4.03 hereof and except for the filings referred to in
Sections 4.01(f) and 4.02(f) hereof, all of which shall have been duly
obtained or made and shall be in full force and effect on and as of the
Certificate Closing Date or the Delivery Date, or as contemplated by said
Sections;
(g) neither the execution, delivery or performance by the Lessee of
the Lessee Documents nor compliance with the terms and provisions hereof or
thereof, conflicts or will conflict with or results or will result in a
breach or violation of any of the terms, conditions or provisions of, or
will require any consent (other than the Consent and Agreement, the AVSA
Consent and Agreement, the Engine Consent and the Consent and Guaranty) or
approval under, any law, governmental rule or regulation or the charter
documents, as amended, or bylaws, as amended, of the Lessee or any order,
writ, injunction or decree of any court or governmental authority against
the Lessee or by which it or any of its Properties is bound or any
indenture, mortgage or contract or other agreement or instrument to which
the Lessee is a party or by which it or any of its Properties is bound, or
constitutes or will constitute a default thereunder or results or will
result in the imposition of any Lien upon any of its Properties;
(h) there are no pending or, to the knowledge of the Lessee,
threatened actions, suits, investigations or proceedings (whether or not
purportedly on behalf of the Lessee) against or affecting the Lessee or any
of its Property before or by any court or administrative agency which (A)
involve the Aircraft, (B) except for the matters described (i) under "Legal
Proceedings" in the Lessee's Annual Report on Form 10-K for the fiscal year
ended May 31, 1996 (as updated by Note 7 to the financial statements
included in the Lessee's Quarterly Reports on Form 10-Q for the fiscal
quarters ended August 31, 1996, November 30, 1996 and February 28, 1997)
and (ii) in the Lessee's Current Reports on Form 8-K dated June 7, 1996,
August 16, 1996 and March 4, 1997, as to which no representation is made
concerning the Lessee's liability (if any) or the effect of any adverse
determination upon the consolidated financial condition, business or
operations of the Lessee, if adversely determined, would materially and
adversely affect the consolidated financial condition, business or
operations of the Lessee, or (C) if adversely determined would adversely
affect the ability of the Lessee to perform its obligations under the
Lessee Documents;
(i) the Lessee has filed or caused to be filed all tax returns which
are required to be filed and has paid or caused to be paid all taxes shown
to be due and payable pursuant to such returns or pursuant to any
assessment received by the Lessee (other than assessments the payment of
which is being contested in good faith by the Lessee by appropriate
proceedings that do not involve any material danger of sale, forfeiture or
loss of the Aircraft or any part thereof), and the Lessee has no knowledge
of any related actual or proposed deficiency or additional assessment which
either in any case or in the aggregate would materially adversely affect
the Lessee's consolidated financial condition (other than, in any such case,
assessments, the payment of which is being contested in good faith by the
Lessee, as to which no representation is made concerning the Lessee's
liability (if any) or the effect of any adverse determination upon the
Lessee's consolidated financial condition);
(j) except for (A) the registration in the Owner Trustee's name of
the Aircraft pursuant to the Transportation Code to be accomplished by
filing with the FAA, of AVSA's FAA Bill of Sale, the Trust Agreement, the
Affidavits and the Application, (B) the filing with and, where appropriate,
recordation by the FAA pursuant to the Transportation Code of the
Indenture, the Indenture and Security Agreement Supplement covering the
Aircraft, the Lease and the Lease Supplement covering the Aircraft, (C) the
filing of the financing statements referred to in Sections 4.01(f) and
4.02(f) hereof and (D)(x) on the Certificate Closing Date, the taking of
possession by the Indenture Trustee of the Liquid Collateral and
maintaining possession by the Indenture Trustee thereof as contemplated in
Section 2.14(a) of the Indenture and (y) on the Delivery Date, the taking
of possession by the Indenture Trustee of the original counterpart of the
Lease and the Lease Supplement covering the Aircraft, no further action,
including any filing or recording of any document, is necessary or
advisable in order (i) to establish the Owner Trustee's title to and
interest in the Aircraft and the Lessor's Estate as against the Lessee and
any third parties, or (ii) to perfect the first security interest in and
mortgage Lien on the Trust Indenture Estate in favor of the Indenture
Trustee;
(k) on the Delivery Date, the Owner Trustee has received good and
marketable title to the Aircraft, free and clear of all Liens, except the
rights of the Lessee under the Lease and the Lease Supplement, the rights
of the Indenture Trustee under the Indenture and the beneficial interest of
the Owner Participant created by the Trust Agreement;
(l) the Lessee has heretofore delivered to the Owner Participant
true and correct copies of the Lessee's Annual Report on Form 10-K for the
fiscal year ended May 31, 1996 and its Quarterly Reports on Form 10-Q for
the fiscal quarters ended August 31, 1996, November 30, 1996 and February
28, 1997, and of the audited consolidated balance sheet of the Lessee for
the fiscal year ended May 31, 1996 and the unaudited consolidated balance
sheets of the Lessee as of August 31, 1996, November 30, 1996 and February
28, 1997, and the related consolidated statements of income, changes in
common stockholders' investment and cash flows for the fiscal year and
interim reporting periods ended on such dates, accompanied (except in the
case of such interim reporting periods) by a report thereon containing
opinions without qualification, except as therein noted, by Arthur Andersen
LLP, independent public accountants; said financial statements have been
prepared in accordance with generally accepted accounting principles
consistently applied and present fairly the financial position of the
Lessee as of such dates and the results of its operations and cash flows
for such periods and such Annual Report, Quarterly Reports and financial
statements did not, as of their respective dates of filing with the SEC,
contain any untrue statement of a material fact or omit a material fact
necessary to make the statements contained therein not misleading;
(m) with respect to ERISA:
(i) none of the Pension Plans (as defined at the end of this
Section 6.01(m)) nor their related trusts have been terminated in a
distress termination pursuant to Section 4041(c) of ERISA or by the
Pension Benefit Guaranty Corporation (together with any successor
agency or instrumentality thereto, the "PBGC") pursuant to Section
4042 of ERISA, nor have any actions been taken to so terminate any
Pension Plan or related trust and neither the Lessee nor any ERISA
Affiliate (as defined at the end of this Section 6.01(m)) has
incurred or could reasonably be expected to incur any material
liability with respect to a Pension Plan under Section 4062, 4063,
4064 or 4069 of ERISA;
(ii) there have been no "reportable events" (as such term is
defined in Section 4043(b) of ERISA) with respect to any Pension Plan
which have resulted or could reasonably be expected to result in any
material liability of the Lessee or any ERISA Affiliate;
(iii) no "accumulated funding deficiency" (as such term is defined
in Section 302 of ERISA or Section 412 of the Code) exists with
respect to any Pension Plan, whether or not waived, nor has any
request for a waiver under Section 412(d) of the Code been, or is
reasonably likely to be, filed with respect to any of the Pension
Plans;
(iv) neither the Lessee nor any ERISA Affiliate has failed to make
any contribution or payment to any Pension Plan which has resulted or
could reasonably be expected to result in the imposition of a Lien
under Section 302(f) of ERISA or Section 412(n) of the Code;
(v) all Pension Plans are in compliance in all material respects
with all applicable provisions of ERISA and the Code;
(vi) neither the Lessee nor any ERISA Affiliate has incurred or is
reasonably likely to incur any material withdrawal liability pursuant
to Section 4201 or 4204 of ERISA or any material liability under
Section 515 of ERISA;
(vii) to the best of the Lessee's knowledge, neither the Lessee
nor any ERISA Affiliate has engaged in a "prohibited transaction"
(within the meaning of Section 4975 of the Code or Section 406 of
ERISA) which could reasonably be expected to subject the Lessee to
the tax or penalties on prohibited transactions imposed by Section
4975 of the Code or Section 502 of ERISA; and
(viii) assuming the truth of the representations contained in
Section 7.09 hereof and compliance with Section 10.06 of the
Indenture, the execution and delivery of this Agreement and the other
Operative Agreements and the consummation of the transactions
contemplated hereby and thereby will not involve any transaction
which is prohibited by Section 406 of ERISA or in connection with
which a tax could be imposed pursuant to Section 4975 of the Code.
No part of the funds to be used by the Lessee in satisfaction of its
obligations under this Agreement or any other of the Operative
Agreements to which the Lessee is a party or to which the Lessee is
bound are the assets of any employee benefit plan subject to Title I
of ERISA, or any individual retirement account or an employee benefit
plan subject to Section 4975 of the Code;
as used in this Section 6.01(m), the term "Pension Plan" means an employee
pension benefit plan as defined in Section 3(2) of ERISA (other than a
multiemployer plan as defined in Section 4001(a)(3) of ERISA) which is
covered by Title IV of ERISA or subject to the minimum funding standards
under Section 412 of the Code and which is maintained, or contributed to,
by the Lessee or any ERISA Affiliate, and the term "ERISA Affiliate" means
any entity which together with the Lessee would be treated as a single
employer under Section 414(b), (c), (m) or (o) of the Code;
(n) the Lessee is a Citizen of the United States;
(o) except for the filings referred to in Sections 4.01(f), 4.02(e)
and 4.02(f) hereof, no governmental approval of any kind is required of the
Owner Participant or for the Owner Participant's execution of or
performance under this Agreement or any agreement contemplated hereby by
reason of any fact or circumstance of the Lessee, the nature of the
Aircraft or the Lessee's proposed operations or use of the Aircraft;
(p) on the Delivery Date, all premiums with respect to the insurance
required to be provided by the Lessee on or prior to the Delivery Date
under Article 13 of the Lease have been paid by the Lessee;
(q) on the Delivery Date, all sales or use taxes relating to the
sale of the Aircraft by AVSA to the Owner Trustee which are then or were
theretofore due shall have been paid;
(r) the Lessee is not in default under any mortgage, deed of trust,
indenture, lease or other instrument or agreement to which the Lessee is a
party or by which it or any of its Properties or assets may be bound, or in
violation of any applicable law, which default or violation would have a
material adverse effect on the financial condition, business or operations
of the Lessee or its ability to perform any of its obligations under the
Lessee Documents;
(s) no Default or Event of Default or Event of Loss or event, which
with the passage of time or if continued unremedied or unaltered would
constitute an Event of Loss, has occurred or exists;
(t) on the Delivery Date, the Aircraft will be in such condition so
as to enable the airworthiness certificate of such Aircraft to be in good
standing under the Transportation Code; the Aircraft will have been duly
certificated by the FAA as to type and airworthiness; there will be in
effect with respect to the Aircraft a current and valid airworthiness
certificate issued by the FAA pursuant to the Transportation Code; and
there is no fact known to the Lessee which materially adversely affects the
value, utility or condition of the Aircraft;
(u) on the Certificate Closing Date and the Delivery Date, the
Lessee shall not be in default in the performance of any term or condition
of the Purchase Agreement, the Purchase Agreement Assignment, the Engine
Warranty Assignment and the GTA and the aggregate amount of loans shall not
exceed the Debt Portion;
(v) neither the Lessee nor any subsidiary of the Lessee is an
"investment company" or a company "controlled by an investment company"
within the meaning of the Investment Company Act of 1940, as amended;
(w) on the Delivery Date, the Aircraft will, upon delivery, be fully
equipped to operate in commercial service and will comply with all
governmental requirements governing such service; and
(x) there are no broker's or underwriter's fees payable on behalf
of the Lessee in connection with the transactions contemplated in the
Operative Agreements other than those of the Underwriters and First
Chicago Leasing Corporation referred to in Article 10 hereof.
Section 6.02. Offering by Lessee. The Lessee represents and
warrants that it has authorized no one to act on its behalf in connection with
the offer or sale of any interest in the Lessor's Estate or the Trust
Agreement other than First Chicago Leasing Corporation. Neither the Lessee
nor, based on representations of First Chicago Leasing Corporation, anyone
acting on its behalf has directly or indirectly offered any interest in the
Lessor's Estate or the Trust Agreement, or similar interests, for sale to, or
solicited any offer to acquire any of the same from, anyone other than the
Owner Participant and no more than 15 other accredited investors (as such term
is defined in Regulation D promulgated under the Securities Act of 1933, as
amended).
Section 6.03. Certain Covenants of Lessee. The Lessee covenants and
agrees with the Owner Participant, the Owner Trustee (in its individual
capacity and as Owner Trustee), the Pass Through Trustee (in its individual
capacity and as Pass Through Trustee) and the Indenture Trustee (in its
individual capacity and as Indenture Trustee) as follows:
(a) The Lessee will cause to be done, executed, acknowledged and
delivered at the Lessee's cost and expense all such further acts,
conveyances and assurances as the Owner Trustee, the Indenture Trustee, the
Pass Through Trustee or the Owner Participant shall reasonably require for
accomplishing the purposes of this Agreement, the Trust Agreement, the
Purchase Agreement, the Purchase Agreement Assignment, the GTA, the Engine
Warranty Assignment, the Indenture, the Indenture and Security Agreement
Supplement, the Tax Indemnity Agreement, the Lease and the Lease Supplement
and the other Operative Agreements to which it is a party. Without
limiting the generality of this Section 6.03(a), the Lessee will promptly
take, or cause to be taken, at the Lessee's cost and expense, such action
with respect to the recording, filing, re-recording and re-filing of the
Indenture, each Indenture and Security Agreement Supplement, the Lease,
each Lease Supplement and any financing statements or other instruments as
may be necessary, or as requested by the Indenture Trustee and appropriate,
to maintain the perfection of the first security interest and the Lien
created by the Indenture, and the Owner Trustee's title to and interest in
the Aircraft and the Lessor's Estate as against the Lessee and any third
parties or if the Lessee cannot take, or cause to be taken, such action,
will furnish to the Indenture Trustee and the Owner Trustee timely notice
of the necessity of such action, together with such instruments, in
execution form, and such other information as may be required to enable
either of them to take such action at the Lessee's cost and expense in a
timely manner.
(b) From and after the Delivery Date, the Lessee shall maintain the
certificates referred to in Section 7.01 of the Lease and shall cause the
Aircraft to be duly registered, and at all times to remain duly registered,
in the name of the Owner Trustee, under the Transportation Code, and shall
furnish to the Owner Trustee such information as may be required to enable
the Owner Trustee to make application for such registration; provided,
however, that the Owner Participant, the Owner Trustee and the Indenture
Trustee agree that if at any time after December 31, 2004, so long as no
Event of Default shall have occurred and be continuing, the Lessee has
requested their consent to the registration of the Aircraft in the name of
the Owner Trustee (or, if appropriate under the laws of such
jurisdiction of reregistration, in the name of the Lessee or a sublessee
as a "lessee" or a "sublessee"), at the Lessee's expense, in a country
listed in Schedule III hereto with which the United States then
maintains normal diplomatic relations (and which is not then
experiencing war or substantial civil unrest), the Owner Participant,
the Owner Trustee and the Indenture Trustee upon receipt by the Owner
Participant, the Owner Trustee and the Indenture Trustee of the
assurances and opinion described below, shall not unreasonably withhold
their consent to such change in registration (it being agreed, without
limitation, that the inability of the Lessee to deliver such assurances
or such opinion shall constitute reasonable grounds to withhold such
consent).
As a condition to any change in the registration of the Aircraft, the
Owner Participant, the Owner Trustee in its individual and trust capacities,
and the Indenture Trustee shall have received:
(i) assurances satisfactory to them:
(A) to the effect that the insurance provisions of the Lease have
been and will be complied with and are and shall be in full force and
effect upon such change of registry;
(B) as to the continuation of the Lien of the Indenture as a
first priority, duly perfected Lien on the Aircraft;
(C) that the Owner Trustee's right, title and interest in and to
the Aircraft is recognized and fully enforceable in the new
jurisdiction of registry, that the rights of the Owner Trustee in and
to the Aircraft will not be impaired in such new jurisdiction of
registry and that the new jurisdiction of registry will give effect
to the title and registry of the Aircraft therein substantially to
the same extent as does the Government;
(D) that such new country of registry (x) would provide
substantially equivalent protection for the rights of owner
participants, lessors or lenders in similar transactions as provided
under United States law (except that, in the absence of restrictions
under the laws of such country on rights and remedies of lessors and
secured parties similar to those imposed by Sections 362 and 363 of
the Bankruptcy Code, rights and remedies similar to those available
under Section 1110 of the Bankruptcy Code shall not be required) and
(y)(i) if such change in registration is made other than in
connection with a sublease permitted under Section 7.02(a)(i) of the
Lease, imposes maintenance standards at least comparable to those of
the FAA, and (ii) if such change in registration is made in
connection with a sublease permitted under Section 7.02(a)(i) of the
Lease, imposes maintenance standards in conformity with those set
forth in Section 7.02(a)(i) of the Lease;
(E) that import and export certificates and any exchange permits
necessary to allow all Rent and other payments provided for under the
Lease, if required, shall have been procured at the Lessee's own cost
and expense by the Lessee;
(F) that the Lessee shall have effected or caused to be effected
at the Lessee's own cost and expense all recordings and filings that
are required to perfect the Lien of the Indenture;
(G) to the effect that the original indemnities (and any
additional indemnities for which the Lessee is then willing to
enter into a binding agreement to indemnify) in favor of the Owner
Participant, the Owner Trustee (in its individual capacity and as
trustee under the Trust Agreement), the Indenture Trustee (in its
individual capacity, and as trustee under the Indenture), the Pass
Through Trustee (in its individual capacity, and as trustee under
the Pass Through Agreement) and the other Indemnitees under this
Agreement, the Indenture, the Pass Through Agreement and (in the
case of the Owner Participant only) the Tax Indemnity Agreement,
afford each such party substantially the same protection as
provided prior to such change of registry;
(H) that such change will not result in the imposition of, or
increase in the amount of, any Tax (which, for this purpose, includes
the loss of any tax benefits assumed by the Owner Participant to be
available to it based upon the assumptions set forth in Section 2 of
the Tax Indemnity Agreement) for which the Lessee has not agreed to
indemnify the Owner Participant to its reasonable satisfaction, the
Indenture Trustee, the Pass Through Trustee, the Owner Trustee (or
any successor, assign or Affiliate thereof) and the Trust Estate;
(I) that any value added tax, customs duty, tariff or similar
governmental charge relating to the change in jurisdiction of
registration of the Aircraft shall have been paid in full or
adequately provided for by the Lessee to the satisfaction of the
Owner Trustee, the Indenture Trustee and the Owner Participant;
(J) of the payment by the Lessee of any reasonable fees and
expenses of the Owner Participant, the Owner Trustee, the Indenture
Trustee and the Pass Through Trustee in connection with such change
of registry, including any reasonable attorneys' fees and expenses;
(K) that duties and tariffs, if applicable, shall have been paid
for by the Lessee;
(L) as to the continuation of the Lien of the Indenture as a
first priority, duly perfected Lien on the Aircraft and the Trust
Indenture Estate, that all recordings and filings required to so
perfect the Lien of the Indenture have been duly effected, and that
no Liens (except Liens permitted under Section 6.01 of the Lease)
shall arise by reason of such registration; and
(M) that appropriate deregistration powers of attorney in favor of
the Owner Trustee and the Indenture Trustee have been executed and
delivered by the Lessee and any sublessee and, if necessary or
desirable for the effectiveness thereof, filed with the relevant
aeronautics authority; and
(ii) a favorable opinion of counsel (reasonably satisfactory to the
Owner Trustee, the Indenture Trustee and the Owner Participant) in the new
jurisdiction of registry, addressed and reasonably satisfactory to such
parties in scope, form and substance, to the effect:
(A) that the terms (including, without limitation, the governing
law, service-of-process and jurisdictional-submission provisions
thereof) of the Lease and the Indenture are legal, valid, binding and
enforceable in such jurisdiction against the Lessee, any sublessee,
the Owner Trustee and the Indenture Trustee, respectively;
(B) that it is not necessary for the Owner Participant, the Owner
Trustee, the Indenture Trustee or the Pass Through Trustee to
register or qualify to do business or meet other requirements not
already met in such jurisdiction in connection with the registration
in the new jurisdiction (and the filing and/or recordation therein of
the Indenture or the Lease) and the exercise of any rights or
remedies with respect to the Aircraft pursuant to the Lease or the
Indenture or in order to maintain such registration and the Lien of
the Indenture;
(C) that the courts of such jurisdiction would provide
substantially equivalent protection to the Lessor, the Owner
Participant, the Pass Through Trustee and the Indenture Trustee as
provided under United States law (with the exception described in
paragraph (b)(i)(D)(x) of this Section 6.03) in respect of the
transactions contemplated hereby, including, without limitation, the
remedies provided in the Indenture and the Lease;
(D) that there is no tort liability of the beneficial owner,
record owner, lessor or mortgagee of an aircraft not in possession
thereof under the laws of such jurisdiction, other than tort
liability which might reasonably have been imposed on such owner,
lessor or mortgagee under the laws of the United States or any state
thereof (it being understood that, in the event such latter opinion
cannot be given in a form satisfactory to the Owner Trustee, the
Owner Participant and the Indenture Trustee, such opinion shall be
waived, if insurance reasonably satisfactory to the Owner
Participant, the Indenture Trustee and the Owner Trustee, in its
individual capacity, is provided, at the Lessee's expense, to cover
such risk and the Lessee undertakes to keep such insurance in full
force and effect);
(E) that the laws of such jurisdiction will not impair the rights
of the Lessor in and to the Aircraft or under the Lease and (unless
the Lessee shall have agreed to provide insurance reasonably
satisfactory to the Indenture Trustee and the Owner Participant
covering the risk of requisition of use of the Aircraft by the
government of registry of the Aircraft) require fair compensation by
the government of such jurisdiction payable in currency freely
convertible into United States dollars for the loss of use of the
Aircraft in the event of such requisition;
(F) that the Owner Trustee's title to the Aircraft is recognized
and fully enforceable in such jurisdiction, that such jurisdiction
will give effect to the title of the Aircraft therein substantially
to the same extent as does the Government, and that the Lien of the
Indenture shall continue as a first priority, duly perfected lien on
the Aircraft;
(G) to such further effect with respect to such other matters as
the Owner Participant, the Owner Trustee, or the Indenture Trustee may
reasonably request; and
(H) the Lien of the Indenture continues to constitute a first
priority, duly perfected Lien on the Aircraft.
(c) The Lessee shall promptly file any reports, or furnish to the
Owner Trustee and the Owner Participant such information as may be required
to enable the Owner Trustee and the Owner Participant timely to file any
reports required to be filed by the Owner Trustee as the Lessor and the
Owner Participant under the Lease with any governmental authority.
(d) The Lessee will cause the Special Aviation Counsel to file, and
where appropriate record, on the Delivery Date, AVSA's FAA Bill of Sale,
the Lease, the Lease Supplement, the Trust Agreement, the Indenture and the
Indenture and Security Agreement Supplement. The following documents shall
be filed and, where appropriate, recorded on the Delivery Date with the
Aeronautics Authority in the following order of priority: first, AVSA's
FAA Bill of Sale, second, the Application, with the Trust Agreement and the
Affidavits, third, the Indenture with the Indenture and Security Agreement
Supplement attached thereto, and fourth, the Lease with the Lease
Supplement, the Indenture and the Indenture and Security Agreement
Supplement attached thereto.
(e) The Lessee will furnish to the Owner Participant, the Owner
Trustee and the Indenture Trustee annually after the execution of this
Agreement, by March 15 of each year, commencing with the year 1998, an
opinion, reasonably satisfactory to the Owner Participant and the Indenture
Trustee, of Special Aviation Counsel, or other counsel specified from time
to time by the Lessee acceptable to the Lessor and the Indenture Trustee:
(i) stating either (1) that in the opinion of such counsel such action has
been taken with respect to the recording, filing, re-recording and
re-filing of the Lease, the Indenture, the Trust Agreement, and any
supplements to any of them and any financing statements, continuation
statements or other instruments, and all other action has been taken, as is
necessary to maintain the Owner Trustee's title to and interest in the
Aircraft and the Lessor's Estate as against the Lessee and any third
parties and to maintain the perfection of the security interests created by
said documents and reciting the details of such action, or (2) that in the
opinion of such counsel no such action is necessary to maintain such title
or the perfection of such security interests; (ii) specifying all other
action which needs to be taken during the succeeding 14 months in order to
maintain such title and the perfection of such security interests (which
the Lessee agrees timely to take); and (iii) stating that the Owner Trustee
is the owner of legal title to the Aircraft, and the Aircraft is free and
clear of all Liens, except the security interest created by the Indenture
and such as are permitted by the Lease and the Indenture.
(f) The Lessee shall at all times maintain its corporate existence
except as permitted by Section 6.03(g) hereof and all of its rights,
privileges and franchises necessary in the normal conduct of its business,
except for any corporate right, privilege or franchise (i) that it
determines, in its reasonable, good faith business judgment, is no longer
necessary or desirable in the conduct of its business and (ii) the loss of
which will not materially adversely affect or diminish the rights of the
Holders or the Owner Participant.
(g) The Lessee shall not enter into any merger or consolidation, or
convey, transfer or lease all or substantially all of its assets as an
entirety to any Person, unless the surviving corporation or Person which
acquires by conveyance, transfer or lease all or substantially all of the
assets of the Lessee as an entirety (i) is a domestic corporation organized
and existing under the laws of the United States or a political subdivision
thereof, (ii) is a Citizen of the United States, (iii) is a U.S. Air
Carrier, (iv) expressly assumes by an instrument in writing in form and
substance satisfactory to the Owner Participant, the Indenture Trustee and
the Owner Trustee all of the Lessee's obligations hereunder and under the
other Operative Agreements, and each other document contemplated hereby or
thereby and the Lessee delivers such instrument to the Indenture Trustee,
the Owner Participant and the Owner Trustee, (v) provides an opinion from
outside counsel to the Lessee which counsel shall be reasonably
satisfactory to the Owner Participant and the Indenture Trustee and which
opinion shall be reasonably satisfactory to the Owner Participant and the
Indenture Trustee, and an officer's certificate, each stating that such
merger, consolidation, conveyance, transfer or lease and the instrument
noted in clause (iv) above comply with this Section 6.03(g), that such
instrument is a legal, valid and binding obligation of, and is enforceable
against, such survivor or Person, and that all conditions precedent herein
provided for relating to such transaction have been complied with, and (vi)
immediately after such merger, consolidation or conveyance, transfer or
lease, as the case may be, the surviving company (or Person which acquires
by conveyance, transfer or lease the assets of the Lessee) is in compliance
with all of the terms and conditions of this Agreement and the Lease and
each other Operative Agreement and each other document contemplated hereby
or thereby; provided that no such merger, consolidation or conveyance,
transfer or lease shall be permitted if the same gives rise to an Event of
Default.
Upon any consolidation or merger, or any conveyance, transfer or
lease of all or substantially all of the assets of the Lessee and the
satisfaction of the conditions specified in this Section 6.03(g), the
successor corporation formed by such consolidation or into which the Lessee
is merged or the Person 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 Lessee under this Agreement and the Lease and each other
Operative Agreement and any other document contemplated hereby and thereby
to which the Lessee is a party with the same effect as if such successor
corporation had been named as the Lessee herein and therein. No such
conveyance, transfer or lease of all or substantially all of the assets of
the Lessee as an entirety shall have the effect of releasing the Lessee or
any successor corporation which shall theretofore have become the Lessee
hereunder in the manner prescribed in this Section 6.03(g) from its
liability hereunder or under the other Operative Agreements. Nothing
contained herein shall permit any lease, sublease, or other arrangement for
the use, operation or possession of the Aircraft except in compliance with
the applicable provisions of the Lease.
(h) The Lessee agrees to give prompt written notice to the Owner
Participant, the Owner Trustee and the Indenture Trustee of any change in
the address of its chief executive office (as such term is used in Section
9-103(3) of the Tennessee Uniform Commercial Code) or of any change in its
corporate name.
(i) The Lessee agrees to furnish to the Owner Participant, the
Lessor and the Indenture Trustee:
(A) as soon as available, but in any event within one hundred
twenty (120) days after the end of each fiscal year of the Lessee, a
consolidated balance sheet as of the end of such fiscal year, and the
related consolidated statements of income, common stockholders'
equity, retained earnings and cash flows of the Lessee for the fiscal
year then ended as prepared and certified by the Lessee's independent
certified public accountants, including their opinion;
(B) within sixty (60) days after the end of the first, second and
third quarterly accounting periods in each fiscal year of the Lessee,
a consolidated balance sheet of the Lessee prepared by it as of the
close of the accounting period then ended, together with the related
consolidated statements of income, retained earnings and cash flows
for such accounting period certified by the chief accounting officer
or a financial vice president of the Lessee;
(C) promptly upon their general transmission, copies of all
reports and statements furnished by the Lessee to its stockholders;
(D) promptly after filing with the SEC, copies of the Lessee's
Annual Reports on Form 10-K (including all corresponding annual
reports to shareholders), Quarterly Reports on Form 10-Q and, if
requested, any registration statement or prospectus filed by the
Lessee with any securities exchange or with the SEC;
(E) promptly upon (and in any event within five (5) Business Days
after) any officer of the Lessee obtaining knowledge of any condition
or event which constitutes a Default or an Event of Default, an
officer's certificate specifying the nature and period of existence
thereof and what action the Lessee has taken or is taking or proposes
to take with respect thereto;
(F) from time to time, such other financial information as the
Lessor, the Owner Participant or the Indenture Trustee may
reasonably request.
Concurrently with the delivery of the financial statements referred
to in clause (A) above, the Lessee shall deliver to the Lessor, the Owner
Participant, the Indenture Trustee and the Pass Through Trustee a certificate
of the Lessee, signed by any one of the President, the Chief Financial
Officer, the General Counsel, the Treasurer or the principal accounting
officer of the Lessee, stating that the signer, or an employee reporting to
same, is familiar with the relevant terms of this Agreement and the Lease and
the signer has reviewed, or has caused to be made under such Person's
supervision a review, of the activities of the Lessee and that, to the best of
his or her knowledge, there does not exist any Default or any Event of Default
or if a Default or an Event of Default exists or did exist, specifying the
nature thereof, the period of existence thereof and what action the Lessee has
taken or proposes to take with respect thereto.
Section 6.04. Survival of Representations and Warranties. The
representations and warranties of the Lessee provided in Sections 6.01 and
6.02 hereof and in any other Operative Agreement shall survive the Closings
hereunder and the delivery of the Aircraft and the expiration or other
termination of this Agreement and the other Operative Agreements.
ARTICLE 7
OTHER PARTIES' REPRESENTATIONS, WARRANTIES AND COVENANTS
Section 7.01. Acquisitions and Offerings of Interests in Lessor's
Estate. (a) [Reserved]
(b) Owner Participant. The Owner Participant represents and
warrants that its interest in the Lessor's Estate and the Trust Agreement is
being acquired by it for its own account and not with a view to resale or
distribution thereof; provided, however, that the disposition by the Owner
Participant of its interest in the Lessor's Estate and the Trust Agreement
shall, subject to the terms and provisions of Section 7.03(d) hereof (except
as provided in clause (ii) of Section 3.05(a) hereof), at all times be within
its control and the foregoing representation shall not limit the Owner
Participant's right to transfer or sell such interests pursuant to the terms
of this Agreement. Neither the Owner Participant nor anyone authorized to act
on its behalf has directly or indirectly offered any interest in the Lessor's
Estate or the Trust Agreement, or in any similar security, for sale to, or
solicited any offer to acquire any of the same from, anyone. The Owner
Participant further represents and warrants that neither it nor anyone
authorized to act on its behalf has made or will make any offer, solicitation
or sale of any interest in the Lessor's Estate or the Trust Agreement in
violation of the provisions of Section 5 of the Securities Act of 1933, as
amended. No representation in this Section 7.01(b) shall include any action
or inaction of the Lessee, First Chicago Leasing Corporation, the
Subordination Agent, the Underwriters or any Affiliates of any thereof whether
or not such action or inaction is purportedly on behalf of the Owner Trustee,
the Owner Participant or any of their Affiliates.
Section 7.02. Citizenship. (a) Generally. Each of the Owner
Trustee, in its individual capacity and as Trustee, and the Owner Participant
severally represents and warrants that it is or will be a Citizen of the
United States on the Delivery Date. If the Owner Participant or the Owner
Trustee in its individual capacity does not comply with the requirements of
this Section 7.02, the Owner Trustee, the Indenture Trustee and the Owner
Participant hereby agree that a Default or an Event of Default shall not be
deemed to have occurred and be continuing under the Lease due to
non-compliance by the Lessee with the registration requirements in the Lease
occasioned by the noncompliance of the Owner Participant or the Owner Trustee.
(b) Owner Trustee. The Owner Trustee, in its individual capacity,
covenants that if at any time on or after the Delivery Date it shall have
actual knowledge that it has ceased to be a Citizen of the United States, it
will resign immediately as the Owner Trustee if such citizenship is necessary
under the Transportation Code as in effect at such time or, if it is not
necessary under the Transportation Code as in effect at such time, if it is
informed in writing by the Lessee, the Indenture Trustee or the Owner
Participant that such lack of United States citizenship would have any adverse
effect on the Lessee, the Indenture Trustee, the Holders or the Owner
Participant. The Owner Trustee, in its individual capacity, further covenants
that if at any time it appears reasonably probable that it will cease to be a
Citizen of the United States based on information that is (i) known to a
Responsible Officer or (ii) generally known to the public, it will promptly so
notify, to the extent permitted by law, all parties to this Agreement.
(c) Owner Participant. The Owner Participant agrees, solely for the
benefit of the Lessee, the Pass Through Trustee, the Indenture Trustee and the
Owner Trustee, that if at any time on or after the Delivery Date when the
Aircraft is registered or the Lessee proposes to register the Aircraft in the
United States (i) either it shall cease to be, or an event which has been
publicly disclosed has occurred of which the Owner Participant has knowledge
and which will cause the Owner Participant to cease to be, a Citizen of the
United States and (ii) the Aircraft shall or would therefore become ineligible
for registration in the name of the Owner Trustee under the Transportation
Code and regulations then applicable thereunder, then the Owner Participant
shall give notice thereof to the Lessee, the Owner Trustee and the Indenture
Trustee and shall (at its own expense and without any reimbursement or
indemnification from the Lessee) immediately (and in any event within a period
of 20 days) (x) effect a voting trust or other similar arrangement, (y)
transfer in accordance with the terms of this Agreement and the Trust
Agreement all its rights, title and interest in and to such Trust Agreement,
the Lessor's Estate and this Agreement, or (z) take any other alternative
action that would prevent any deregistration, or maintain or permit the United
States registration, of the Aircraft. It is agreed that the Owner Participant
shall be liable to pay promptly on request (A) to each of the other parties
hereto any actual damages (but not consequential damages) suffered by any such
other party to the extent the same shall result from the representation and
warranty of the Owner Participant in the first sentence of Section 7.02(a)
hereof proving to be untrue as of the Delivery Date; and (B) to the Lessee,
the Indenture Trustee or the Pass Through Trustee for any damages actually
(but not consequentially) incurred by the Lessee, the Indenture Trustee and
the Pass Through Trustee as a result of the Owner Participant's failure to
comply with its obligations pursuant to the first sentence of this Section
7.02(c); provided, that, the foregoing shall not restrict the Pass Through
Trustee or the Indenture Trustee from asserting against the Owner Participant
any damages actually incurred by the holders of any Pass Through Certificates.
Each party hereto agrees, upon the request and at the sole expense of the
Owner Participant, to cooperate with the Owner Participant in complying with
its obligations under the provisions of the first sentence of this Section
7.02(c), but without any obligation on the part of such other party to take
any action believed by it in good faith to be unreasonably burdensome to such
party or materially adverse to its business interests.
Section 7.03. Representations, Warranties and Covenants of Owner
Participant. (a) Representations, Warranties and Covenants. In addition to
and without limiting its other representations and warranties provided for in
this Article 7, the Owner Participant represents and warrants on the date
hereof and as of the Certificate Closing Date and the Delivery Date that:
(i) it is a corporation duly incorporated and validly existing in
good standing under the laws of the State of Delaware and it has full
corporate power, authority and legal right to carry on its present business
and operations, to own or lease its Properties and to enter into and to
carry out the transactions contemplated by this Agreement, the Tax
Indemnity Agreement, the Trust Agreement and the other Operative Agreements
to which it is party;
(ii) the execution, delivery and performance by it of this
Agreement, the Tax Indemnity Agreement, and the Trust Agreement and the
other Operative Agreements to which it is party have been duly authorized
by all necessary corporate action on its part and, assuming the accuracy of
the Lessee's representations in Section 6.01(o) hereof, do not require any
governmental approvals that would be required to be obtained by the Owner
Participant;
(iii) based on the representations, warranties and covenants
contained in Sections 6.01(m)(viii), 6.02 and 7.09 hereof and compliance
with Section 10.06 of the Indenture, neither the execution, delivery or
performance by the Owner Participant of this Agreement, the Tax Indemnity
Agreement, and the Trust Agreement and the other Operative Agreements to
which it is party nor compliance with the terms and provisions hereof or
thereof, conflicts or will conflict with or results or will result in a
breach or violation of any of the terms, conditions or provisions of, or
will require any consent or approval under any law, governmental rule or
regulation applicable to the Owner Participant or the charter documents,
as amended, or bylaws, as amended, of the Owner Participant or any
order, writ, injunction or decree of any court or governmental authority
against the Owner Participant or by which it or any of its Properties is
bound or any indenture, mortgage or contract or other agreement or
instrument to which the Owner Participant is a party or by which it or
any of its Properties is bound, or constitutes or will constitute a
default thereunder or results or will result in the imposition of any
Lien upon any of its Properties;
(iv) this Agreement, the Tax Indemnity Agreement and the Trust
Agreement and the other Operative Agreements to which it is party have been
or on the Certificate Closing Date will be duly executed and delivered by
the Owner Participant and constitute or on the Certificate Closing Date
will constitute the legal, valid and binding obligation of the Owner
Participant enforceable against it in accordance with their terms except as
such enforceability may be limited by bankruptcy, insolvency, moratorium,
reorganization or other similar laws or equitable principles of general
application to or affecting the enforcement of creditors' rights
(regardless of whether enforceability is considered in a proceeding in
equity or at law);
(v) it is not in default under any mortgage, deed of trust,
indenture, lease or other instrument or agreement to which the Owner
Participant is a party or by which it or any of its Properties may be
bound, or in violation of any applicable law, which default or violation
would have a material adverse effect on the financial condition, business
or operations of the Owner Participant or an adverse effect on the ability
of the Owner Participant to perform its obligations under this Agreement
and the other Operative Agreements to which it is or is to be a party;
(vi) there are no pending or, to the knowledge of the Owner
Participant, threatened actions, suits, investigations or proceedings
against the Owner Participant before any court, administrative agency or
tribunal which are expected to materially adversely affect the ability of
the Owner Participant to perform its obligations under this Agreement and
the other Operative Agreements to which it is or is to be a party and the
Owner Participant knows of no pending or threatened actions or proceedings
before any court, administrative agency or tribunal involving it in
connection with the transactions contemplated by the Operative Agreements;
(vii) neither the execution and delivery by it of this Agreement or
the other Operative Agreements to which it is a party nor the performance
of its obligations hereunder or thereunder requires the consent or approval
of or the giving of notice to, the registration with, or the taking of any
other action in respect of, any governmental authority or agency that would
be required to be obtained or taken by the Owner Participant except for
filings contemplated by this Agreement;
(viii) no part of the funds to be used by it to acquire the interests
to be acquired by the Owner Participant under this Agreement constitutes
assets (within the meaning of ERISA and any applicable rules and
regulations) of any employee benefit plan subject to Title I of ERISA or of
any plan or individual retirement account subject to Section 4975 of the
Code; and
(ix) it is a "U.S. Person" as defined in Section 7701(a)(30) of the
Code and is not a tax resident of another country.
Notwithstanding the foregoing or anything else contained in this
Agreement, the Owner Participant makes no representation or warranty in this
Agreement with respect to laws, rules or regulations relating to aviation or
to the nature or use of the equipment owned by the Owner Trustee, including,
without limitation, the airworthiness, value, condition, workmanship, design,
patent or trademark infringement, operation, merchantability or fitness for
use of the Aircraft, other than such laws, rules or regulations relating to
the citizenship requirements of the Owner Participant under applicable
aviation law.
(b) Lessor's Liens. The Owner Participant further represents,
warrants and covenants that there are no Lessor's Liens attributable to it (or
an Affiliate thereof) and that there will not be any Lessor's Lien
attributable to it (or an Affiliate thereof) on the Certificate Closing Date.
The Owner Participant agrees with and for the benefit of the Lessee, the Owner
Trustee, the Indenture Trustee and the Pass Through Trustee that the Owner
Participant will, at its own cost and expense, take such action as may be
necessary (by bonding or otherwise, so long as neither the Lessee's operation
and use of the Aircraft nor the validity and priority of the Lien of the
Indenture is impaired) to duly discharge and satisfy in full, promptly after
the same first becomes known to the Owner Participant, any Lessor's Lien
attributable to the Owner Participant (or an Affiliate thereof), provided,
however, that the Owner Participant shall not be required to discharge or
satisfy such Lessor's Lien which is being contested by the Owner Participant
in good faith and by appropriate proceedings so long as such proceedings do
not involve any material danger of the sale, forfeiture or loss of the
Aircraft or the Lessor's Estate or the Trust Indenture Estate or any interest
in any thereof or otherwise materially adversely affect the validity or
priority of the Lien of the Indenture.
(c) Reimbursement. Without limiting any other rights the parties
hereto may have as a result of any breach by the Owner Participant of its
obligations in Section 7.03(b) hereof, the Owner Participant agrees to
reimburse each other party hereto for all reasonable legal fees and expenses
of counsel that may be incurred by any such party as a result of the failure
of the Owner Participant to discharge and satisfy any such Lessor's Lien in
accordance with the terms of Section 7.03(b) hereof.
(d) Assignment of Interests of Owner Participant. At any time after
the Delivery Date (or upon the direction of the Lessee if Section 3.05(a)(i)
hereof shall be applicable), and subject to the conditions set forth in this
Section 7.03(d), the Owner Participant may assign, convey or otherwise
transfer to a single institutional investor or an Affiliate of an
institutional investor all (but not less than all) of the Beneficial Interest,
provided that it gives the Lessee and the Indenture Trustee at least 10
Business Days' notice of such assignment, conveyance or other transfer and
provided further that the Owner Participant and any Owner Participant
Guarantor shall remain liable for all obligations of the Owner Participant
under the Trust Agreement and the Operative Agreements to which the Owner
Participant is a party to the extent (but only to the extent) relating to the
period on or before the date of such transfer and provided that the transferee
agrees by a written instrument substantially in the form attached hereto as
Exhibit G-1 to assume primary liability for all obligations as an Owner
Participant under the Trust Agreement and the other Operative Agreements to
which such Owner Participant is a party relating to the period after the date
of transfer. Any such transferee shall (a) be (i) a bank, savings
institution, finance company, leasing company or trust company, national
banking association acting for its own account or in a fiduciary capacity as
trustee or agent under any pension, retirement, profit sharing or similar
trust or fund, insurance company, fraternal benefit society or corporation
acting for its own account having a combined capital and surplus (or, if
applicable, consolidated tangible net worth or its equivalent) of not less
than $75,000,000, (ii) a subsidiary of any Person described in clause (i)
where such Person provides (A) support for the obligations assumed by such
transferee subsidiary reasonably satisfactory to the Lessee, the Owner Trustee
and the Indenture Trustee or (B) an unconditional guaranty substantially in
the form of Exhibit G-2 attached hereto of such transferee subsidiary's
obligations, or (iii) an Affiliate of the transferring Owner Participant, so
long as such Affiliate has a combined capital and surplus (or, if applicable,
consolidated tangible net worth or its equivalent) of not less than
$75,000,000, (b) be legally capable of binding itself to the obligations of
the Owner Participant and shall expressly agree to assume all obligations of
the Owner Participant under the Trust Agreement and this Agreement and (c)
provide representations substantially similar to those contained in Sections
7.02(a) and 7.03(a) hereof. In the event of any such assignment, conveyance
or transfer, the transferee shall become a party to the Trust Agreement and
shall agree to be bound by all the terms of and will undertake all of the
obligations of the Owner Participant contained in the Trust Agreement and the
other Operative Agreements in the manner set forth in the form attached as
Exhibit G-1. A transferee hereunder shall be (i) a "U.S. Person" as defined
in Section 7701(a)(30) of the Code (or any successor provision thereto) and
such transferee shall be personally liable for any debt service to the extent
that its receipt of rentals is reduced by reason of any withholding Taxes that
result from such transferee's failure to be such a "U.S. Person" and (ii) a
Citizen of the United States or has established a voting trust, voting powers
or other arrangement reasonably satisfactory to the Indenture Trustee and the
Lessee to permit the Owner Trustee to be the registered owner of the Aircraft
under the Transportation Code. A transferee hereunder shall not be, and in
acquiring the Beneficial Interest shall not use the assets of, an employee
benefit plan subject to Title I of ERISA or an individual retirement account
or a plan subject to Section 4975 of the Code. Assuming the truth of the
representations made in Sections 6.01(m) and 7.06 hereof and compliance with
Section 10.06 of the Indenture, no such assignment, conveyance or transfer
shall violate any provision of law or regulation or create a relationship
which would be in violation thereof. The Owner Trustee shall not be on notice
of or otherwise bound by any such assignment, conveyance or transfer unless
and until it shall have received an executed counterpart of the instrument of
such assignment, conveyance or transfer. Upon any such disposition by the
Owner Participant to a transferee as above provided, the transferee shall be
deemed the "Owner Participant" or "Trustor" for all purposes of the Operative
Agreements, and shall be deemed to have made all the payments previously made
by its transferor and to have acquired the same interest in the Lessor's
Estate as theretofore held by its transferor; and each reference therein to
the "Owner Participant" or "Trustor" shall thereafter be deemed a reference
to such transferee. Notwithstanding anything to the contrary contained in
this Section 7.03(d), in no event shall the Owner Participant transfer its
interest in the Beneficial Interest to any entity whose business is that of
a nationwide or worldwide overnight or expedited delivery small package air
courier, cargo or freight deliverer or which competes with the Lessee in
such lines of business. The Lessee agrees that it will reasonably
cooperate with the Owner Participant in effecting an assignment of the
Owner Participant's interests including, without limitation, providing
letters to any successor Owner Participant permitting such successor Owner
Participant to rely on any opinions provided by the Lessee on the Delivery
Date.
(e) Actions with Respect to Lessor's Estate, Etc. The Owner
Participant agrees that it will not take any action to subject the Lessor's
Estate or the trust established by the Trust Agreement, as debtor, to the
reorganization or liquidation provisions of the Bankruptcy Code or any other
applicable bankruptcy or insolvency statute.
Section 7.04. Representations, Covenants and Warranties of SSB and
the Owner Trustee. (a) In addition to and without limiting its other
representations and warranties provided for in this Article 7, SSB represents
and warrants, in its individual capacity with respect to items (i), (ii),
(iii)(A), (iv), (v), (vi) and (vii) below, and as the Owner Trustee with
respect to items (iii)(B) and (iv) on the date hereof and as of the
Certificate Closing Date and the Delivery Date that:
(i) it is a national banking association duly organized and validly
existing in good standing under the laws of the United States of America
with its principal place of business and chief executive office (as such
terms are used in Article 9 of the Uniform Commercial Code) at 750 Main
Street, Hartford, Connecticut 06013, Attention: Corporate Trust Department
and has full corporate power and authority, in its individual capacity or
(assuming the Trust Agreement has been duly authorized, executed and
delivered by the Owner Participant) as the Owner Trustee, as the case may
be, to carry on its business as now conducted, and to execute, deliver and
perform this Agreement and the Operative Agreements to which it is or is to
be a party;
(ii) the execution, delivery and performance by SSB, either in its
individual capacity or as the Owner Trustee, as the case may be, of this
Agreement and the Operative Agreements to which it is or is to be party
have been duly authorized by all necessary corporate action on its part,
and do not contravene its articles of association or by-laws; each of this
Agreement and the other Operative Agreements to which it is or is to be a
party has been duly authorized, and has been duly executed and delivered
or, in the case of the Operative Agreements identified in Section 4.02(c)
hereof, will on the Delivery Date be duly executed and delivered by SSB,
either in its individual capacity or as the Owner Trustee, as the case may
be, and neither the execution and delivery thereof nor SSB's performance
of or compliance with any of the terms and provisions thereof will violate
any Federal or Connecticut law or regulation governing SSB's banking or
trust powers;
(iii) (A) assuming due authorization, execution and delivery by each
other party thereto, each of the Operative Agreements to which it is or is
to be party when duly executed and delivered will, to the extent each such
document is entered into by SSB in its individual capacity, constitute the
legal, valid and binding obligation of SSB in its individual capacity
enforceable against it in such capacity in accordance with its respective
terms, except as such enforceability may be limited by bankruptcy,
insolvency, reorganization or other similar laws or equitable principles of
general application to or affecting the enforcement of creditors' rights
(regardless of whether enforceability is considered in a proceeding in
equity or at law), and the performance by SSB in its individual capacity of
any of its obligations thereunder does not contravene any lease, regulation
or contractual restriction binding on SSB in its individual capacity;
(B) assuming due authorization, execution and delivery by each
other party thereto, each of the Operative Agreements to which it is or
is to be party when duly executed and delivered will, to the extent each
such document is entered into by the Owner Trustee in its trust
capacity, constitute the legal, valid and binding obligation of the
Owner Trustee enforceable against it in such capacity in accordance with
its respective terms, except as such enforceability may be limited by
bankruptcy, insolvency, reorganization or other similar laws or
equitable principles of general application to or affecting the
enforcement of creditors' rights (regardless of whether enforceability
is considered in a proceeding in equity or at law), and the performance
by the Owner Trustee of any of its obligations thereunder does not
contravene any lease, regulation or contractual restriction binding on
the Owner Trustee;
(iv) there are no pending or, to its knowledge, threatened actions
or proceedings against SSB before any court or administrative agency
which would materially and adversely affect the ability of SSB, either
in its individual capacity or as the Owner Trustee, as the case may be,
to perform its obligations under the Operative Agreements to which it is
or is to be party;
(v) it shall give the Lessee, the Indenture Trustee and the Owner
Participant at least thirty (30) days' prior written notice in the event of
any change in its chief executive office or name;
(vi) neither the execution and delivery by it, either in its
individual capacity or as the Owner Trustee, as the case may be, of any of
the Operative Agreements to which it is or is to be a party, requires on
the part of SSB in its individual capacity or any of its Affiliates the
consent or approval of or the giving of notice to, the registration with,
or the taking of any other action in respect of, any Federal or Connecticut
governmental authority or agency governing its banking or trust powers; and
(vii) on the Certificate Closing Date, the proceeds arising from the
issuance and sale of the Certificates shall be free of Lessor's Liens
attributable to SSB in its individual capacity and on the Delivery Date the
Owner Trustee shall be holding whatever title to the Aircraft as was
conveyed to it by AVSA, the Aircraft shall be free of Lessor's Liens
attributable to SSB in its individual capacity and SSB in its individual
capacity is a Citizen of the United States.
(b) Lessor's Liens. SSB, in its individual capacity, further
represents, warrants and covenants that there are no Lessor's Liens
attributable to it in its individual capacity and that there will not be any
such Lessor's Liens on the Certificate Closing Date or the Delivery Date. The
Owner Trustee, in its trust capacity, and at the cost and expense of the
Lessee, covenants that it will in its trust capacity promptly, and in any
event within 30 days after the same shall first become known to it, take such
action as may be necessary to discharge duly any Lessor's Liens attributable
to it in its trust capacity. SSB, in its individual capacity, covenants and
agrees that it will at its own expense take such action as may be necessary to
duly discharge and satisfy in full, promptly, and in any event within 30 days
after the same shall first become known to it, any Lessor's Liens attributable
to it in its individual capacity which may arise at any time after the date of
this Agreement.
(c) Indemnity for Lessor's Liens. SSB, in its individual capacity,
agrees to indemnify and hold harmless the Lessee, the Indenture Trustee, the
Owner Participant and the Pass Through Trustee and the Owner Trustee from and
against any loss, cost, expense or damage which may be suffered by the Lessee,
the Indenture Trustee, the Owner Participant, the Pass Through Trustee or the
Owner Trustee as a result of the failure of SSB to discharge and satisfy any
Lessor's Liens attributable to it in its individual capacity, as described in
Section 7.04(b) hereof.
(d) Securities Act. None of SSB, the Owner Trustee or any Person
authorized by either of them to act on its behalf has directly or indirectly
offered or sold or will directly or indirectly offer or sell any interest in
the Lessor's Estate, or in any similar security relating to the Lessor's
Estate, or in any security the offering of which for purposes of the
Securities Act of 1933, as amended, would be deemed to be part of the same
offering as the offering of the aforementioned securities to, or solicited any
offer to acquire any of the same from, any Person.
(e) Actions With Respect to Lessor's Estate, Etc. Neither SSB, in
its individual capacity, nor the Owner Trustee will take any action to subject
the Lessor's Estate or the trust established by the Trust Agreement, as
debtor, to the reorganization or liquidation provisions of the Bankruptcy Code
or any other applicable bankruptcy or insolvency statute.
Section 7.05. Representations, Warranties and Covenants of the
Indenture Trustee. (a) The Indenture Trustee in its individual capacity (other
than as the Pass Through Trustee) represents on the date hereof and as of the
Certificate Closing Date and the Delivery Date as follows:
(i) it is a national banking association duly organized and validly
existing in good standing under the laws of the United States of America
and has the power and authority to enter into and perform its obligations
under the Indenture, this Agreement and the other Operative Agreements to
which it is a party and to authenticate the Certificates to be delivered on
the Certificate Closing Date;
(ii) the Indenture and this Agreement and the other Operative
Agreements to which it is or is to be a party, and the authentication of
the Certificates to be delivered on the Certificate Closing Date, have been
duly authorized by all necessary corporate action on its part, and neither
the execution and delivery thereof nor its performance of any of the terms
and provisions thereof will violate any Federal or Utah law or regulation
relating to its banking or trust powers or contravene or result in any
breach of, or constitute any default under, its articles of association or
by-laws;
(iii) each of the Indenture and this Agreement, and the other
Operative Agreements to which it is or is to be a party, has been duly
executed and delivered or, in the case of the Operative Agreements
identified in Section 4.02(c) hereof, will on the Delivery Date be executed
and delivered by it and, assuming that each such agreement is the legal,
valid and binding obligation of each other party thereto, is (or will be,
as the case may be), the legal, valid and binding obligation of the
Indenture Trustee, enforceable against the Indenture Trustee in accordance
with its terms except as such enforceability may be limited by bankruptcy,
insolvency, reorganization or other similar laws or equitable principles of
general application to or affecting the enforcement of creditors' rights
(regardless of whether enforceability is considered in a proceeding in
equity or at law);
(iv) neither the execution and delivery by it of the Indenture and
this Agreement and the other Operative Agreements to which it is or is to
be a party, nor the performance by it of any of the transactions
contemplated hereby or thereby, requires the consent or approval of, the
giving of notice to, the registration with, or the taking of any other
action in respect of, any Federal or state governmental authority or agency
governing its banking and trust powers; and
(v) on the Certificate Closing Date, the Indenture Trustee holds
the Liquid Collateral on behalf of the Owner Trustee and on the Delivery
Date, the Indenture Trustee will hold the original counterparts of the
Lease and the Lease Supplement.
(b) Indenture Trustee's Liens. The Indenture Trustee, in its
individual capacity, further represents, warrants and covenants that there are
no Indenture Trustee's Liens attributable to it in its individual capacity and
that there will not be any Indenture Trustee's Liens on the Certificate
Closing Date or, as at and following the Delivery Date, the Aircraft. The
Indenture Trustee, in its individual capacity, covenants and agrees that it
will at its own expense take such action as may be necessary to duly discharge
and satisfy in full, promptly, and in any event within 30 days, after the same
shall first become known to it, any Indenture Trustee's Liens.
(c) Indemnity for Indenture Trustee's Liens. The Indenture Trustee,
in its individual capacity, agrees to indemnify and hold harmless the Lessee,
the Owner Participant, the Owner Trustee and the Pass Through Trustee from and
against any loss, cost, expense or damage which may be suffered by the Lessee,
the Indenture Trustee, the Owner Participant, the Owner Trustee or the Pass
Through Trustee as a result of the failure of the Indenture Trustee to
discharge and satisfy any Indenture Trustee's Liens attributable to it in its
individual capacity, as described in Section 7.05(b) hereof.
Section 7.06. Indenture Trustee's Notice of Default. The Indenture
Trustee agrees to give the Owner Participant notice of any Default or Event of
Default promptly upon a Responsible Officer of the Indenture Trustee having
actual knowledge thereof.
Section 7.07. Releases from Indenture. The Indenture Trustee
covenants and agrees, for the benefit of the Lessee and the Owner Participant,
to execute and deliver the instruments of release from the Lien of the
Indenture which it is required to execute and deliver in accordance with the
provisions of Article XIV of the Indenture, and the Owner Participant agrees,
for the benefit of the Lessee, to cause the Owner Trustee to request the
Indenture Trustee to execute and deliver such instruments of release upon
written notice from the Lessee to make such request.
Section 7.08. Covenant of Quiet Enjoyment. Each of the Owner
Participant, the Indenture Trustee, the Pass Through Trustee and the Owner
Trustee covenants and agrees as to itself only that, so long as no Event of
Default under the Lease has occurred and is continuing, neither the Owner
Participant (or the Owner Trustee, the Pass Through Trustee or the Indenture
Trustee, as the case may be) nor any Person lawfully claiming through the
Owner Participant (or the Owner Trustee, the Pass Through Trustee or the
Indenture Trustee, as the case may be) shall interfere with the Lessee's right
quietly to enjoy the Aircraft during the Term without hindrance or disturbance
by the Owner Participant (or the Owner Trustee, the Pass Through Trustee or
the Indenture Trustee, as the case may be).
Section 7.09. Pass Through Trustee's Representations and Warranties.
The Pass Through Trustee, in its individual capacity (except with respect to
clause (iii) below), represents and warrants as of the date hereof (except as
otherwise provided), as of the Pass Through Closing Date, the Certificate
Closing Date and the Delivery Date that:
(i) it is a national banking association duly organized and validly
existing in good standing under the laws of the United States of America
and has the power and authority to enter into and perform its obligations
under the Pass Through Agreement, the Series Supplements, the Intercreditor
Agreement and this Agreement and to execute and authenticate the Pass
Through Certificates to be delivered on the Pass Through Closing Date;
(ii) the execution, delivery and performance of this Agreement,
the Pass Through Agreement and the Series Supplements and the
performance of its obligations hereunder and thereunder (including the
execution and authentication of the Pass Through Certificates to be
delivered on the Pass Through Closing Date) have been fully authorized
by all necessary corporate action on its part, and, subject to (A) the
registration of the issuance and sale of the Pass Through Certificates
under the Securities Act, (B) compliance with any applicable state
securities laws and (C) the qualification of the Pass Through Agreement
under the Trust Indenture Act, neither the execution and delivery
thereof nor its performance of any of the terms and provisions thereof
will violate any Federal or Utah law or regulation relating to its
banking or trust powers or contravene or result in any breach of, or
constitute any default under its articles of association, or bylaws or
the provisions of any indenture, mortgage, contract or other agreement
to which it is a party or by which it or its properties may be bound or
affected; and
(iii) each of this Agreement and the Pass Through Agreement has
been, and as of the Pass Through Closing Date the Series Supplements
will be, duly executed and delivered by it (in its individual and trust
capacities) and, assuming that each such agreement is the legal, valid
and binding obligation of each other party thereto, is or will be, as
the case may be, the legal, valid and binding obligation of the Pass
Through Trustee (in its individual and trust capacities), enforceable in
accordance with its respective terms except as limited by bankruptcy,
insolvency, moratorium, reorganization or other similar laws or
equitable principles of general application to or affecting the
enforcement of creditors' rights generally (regardless of whether such
enforceability is considered in a proceeding in equity or at law).
Section 7.10. Survival of Representations, Warranties and Covenants.
The representations, warranties and covenants of the Owner Participant, the
Owner Trustee (in its individual or trust capacity), the Pass Through Trustee
(in its individual or trust capacity), the Indenture Trustee (in its
individual or trust capacity) and the Subordination Agent (in its individual
or trust capacity) provided for in this Article 7, and their respective
obligations under any and all of them, shall survive the Closings, the
delivery of the Aircraft and the expiration or other termination of this
Agreement, and the other Operative Agreements.
Section 7.11. Lessee's Assumption of the Certificates. (a) Subject
to compliance by the Lessee with all of its obligations under the Operative
Agreements, each of the Owner Participant, the Owner Trustee, the Indenture
Trustee, the Pass Through Trustee and the Lessee covenants and agrees that if
the Lessee elects to terminate the Lease and to purchase the Aircraft pursuant
to Section 4.02(a)(A), (D) or (E) of the Lease, and so long as no Event of
Default shall have occurred and be continuing then, upon compliance with the
applicable provisions of said Section 4.02(a) of the Lease, the Owner Trustee
will transfer to the Lessee, without recourse or warranty (except as to the
absence of Lessor's Liens attributable to the Owner Trustee) but subject to
the Lien of the Indenture, all of the Owner Trustee's right, title and
interest in and to the Aircraft, and if the Lessee, in connection with such
purchase, elects pursuant to Section 4.02(a)(A), (D) or (E) of the Lease to
assume the obligations of the Owner Trustee to the Indenture Trustee and the
Holders under the Indenture, the Certificates and hereunder, then the Lessee
shall so notify the Indenture Trustee (such notice to be given at least 30 and
not more than 60 days prior to the effective date of such assumption), and
each of the parties shall execute and deliver appropriate documentation
permitting the Lessee to assume such obligations on the basis of full recourse
to the Lessee, maintaining for the benefit of the Holders the security
interest in the Aircraft created by the Indenture, and upon compliance with
the provisions of this Section 7.11 releasing the Owner Participant and the
Owner Trustee from all obligations in respect of the Certificates, the
Indenture, this Agreement and the other Operative Agreements, except any
obligations relating to the period prior to such assumption and take all
such other actions, at the Lessee's expense, as are reasonably necessary to
permit such assumption by the Lessee.
(b) In connection with such assumption:
(i) the Lessee shall execute and deliver an instrument satisfactory
in form and substance to the Indenture Trustee (A) pursuant to which the
Lessee irrevocably and unconditionally assumes and undertakes, with full
recourse to the Lessee, to pay, satisfy and discharge when and as due (at
the stated maturity thereof, by acceleration or otherwise) the principal
of, Make-Whole Premium, if any, interest and all other sums owing on all
Outstanding Certificates (or on the Lessee's substituted obligations) in
accordance with their terms and to punctually perform and observe all of
the covenants and obligations hereunder and under the Indenture and the
Certificates (as the same may be amended in connection with such
assumption) to be performed or observed by the Owner Trustee and (B) which
contains amendments to the Indenture, in form and substance satisfactory to
the Holders and the Indenture Trustee, that incorporate therein such
provisions from the Lease and this Agreement as may be appropriate,
including, without limitation, events of default substantially identical in
scope and effect to those set forth in the Lease and covenants
substantially identical to the covenants of the Lessee hereunder and under
the Lease;
(ii) the instrument referred to in paragraph (i) of this Section
7.11(b), any Uniform Commercial Code financing statements relating thereto,
and any other documents which shall be necessary (or reasonably requested
by the Indenture Trustee) to establish the Lessee's title to and interest
in the Aircraft or to reflect the substitution of the Lessee for the Owner
Trustee under the Operative Agreements or to continue the perfection of the
security interests in the Aircraft and the other rights, Property and
interests included in the Trust Indenture Estate for the benefit of the
Holders (or the Lessee's substituted obligations) shall be filed in such
form, manner and places as are necessary or, in the reasonable opinion of
the Indenture Trustee, advisable for such purpose;
(iii) the Indenture Trustee shall have received an insurance report
dated the effective date of such assumption of an independent insurance
broker and certificates of insurance, each in form and substance
satisfactory to the Indenture Trustee, as to the due compliance as of the
effective date of such assumption with the terms of Article 13 of the Lease
(as it relates to the Indenture Trustee) relating to the insurance with
respect to the Aircraft;
(iv) the Indenture Trustee shall have received evidence that as of
the effectiveness of the assignment on the date of such assumption the
Aircraft is free and clear of all Liens other than the Lien of the
Indenture and other Permitted Liens;
(v) the Indenture Trustee shall have received a certificate from
the Lessee that no Event of Default shall have occurred and be continuing
as of the effective date of such assumption; and
(vi) the Indenture Trustee shall have received (A) from counsel for
the Lessee (who may be the Lessee's General Counsel) a legal opinion, in
form and substance satisfactory to the Indenture Trustee (w) with respect
to the compliance of the assumption contemplated hereby with the terms,
provisions and conditions hereof, (x) with respect to the due
authorization, execution, delivery, validity and enforceability of the
instrument referred to in paragraph (i) of this Section 7.11(b), (y)
with respect to the continued perfection of the first and prior Lien and
security interest in the Aircraft for the benefit of the Holders of the
Certificates (or the Lessee's substituted obligations) referred to in
paragraph (ii) of this Section 7.11(b) and (z) with respect to the
continued availability of the benefits of Section 1110 of the Bankruptcy
Code to the Indenture Trustee for the benefit of the Holders with
respect to the Aircraft after giving effect to such assumption, (B) from
counsel to the Indenture Trustee and Special Aviation Counsel, a legal
opinion comparable to the respective opinions delivered on the
Certificate Closing Date or the Delivery Date, as the case may be, with
such changes therein as may be appropriate in light of such assumption,
and (C) in the case of each opinion described in clause (A) or (B)
above, covering such additional matters as the Indenture Trustee shall
reasonably request.
(c) The Lessee shall pay all reasonable expenses (including
reasonable fees and expenses of counsel) of the Indenture Trustee, the Owner
Trustee, the Pass Through Trustee and the Owner Participant in connection with
such assumption.
Section 7.12. Indebtedness of Owner Trustee. So long as the
Indenture is in effect, the Owner Trustee, not in its individual capacity, but
solely as trustee under the Trust Agreement, shall not incur any indebtedness
for borrowed money except as expressly contemplated herein or in any other
Operative Agreement (excluding the Tax Indemnity Agreement) and shall not
engage in any business or other activity other than the transactions
contemplated herein or in any other Operative Agreement (excluding the Tax
Indemnity Agreement) and all necessary or appropriate activity related
thereto.
Section 7.13. Compliance with Trust Agreement, Etc. Each of the
Owner Participant, SSB and the Owner Trustee agrees with the Lessee, the
Indenture Trustee and the Pass Through Trustee that so long as the Lien of the
Indenture shall be in effect it will (i) comply with all of the terms of the
Trust Agreement applicable to it in its respective capacity, the noncompliance
with which would materially adversely affect any such party and (ii) not take
any action, or cause any action to be taken, to amend, modify or supplement
any other provision of the Trust Agreement in a manner that would materially
adversely affect any such party without the prior written consent of such
party. The Owner Trustee confirms for the benefit of the Lessee, the
Indenture Trustee and the Pass Through Trustee that it will comply with the
provisions of Article 2 of the Trust Agreement. Notwithstanding anything else
to the contrary in the Trust Agreement, so long as the Lease remains in
effect, the Owner Participant agrees not to terminate or revoke the trust
created by the Trust Agreement without the consent of the Lessee. If and so
long as the Indenture shall not have been discharged the consent of the
Indenture Trustee shall also be required prior to any termination or
revocation of such trust and in addition, the Owner Participant will, at the
Lessee's expense, promptly and duly execute and deliver to the Indenture
Trustee such documents and assurances including, without limitation,
conveyances, financing statements and continuation statements with respect to
financing statements and take such further action as the Indenture Trustee may
from time to time reasonably request and furnish in order to protect the
rights and remedies created or intended to be created in favor of the
Indenture Trustee under the Indenture and to create for the benefit of the
Certificate Holders a valid first priority Lien with respect to, and a first
and prior perfected security interest in, the Trust Indenture Estate.
Section 7.14. Subordination Agent's Representations, Warranties and
Covenants. (a) Representations and Warranties. The Subordination Agent
represents and warrants as of the date hereof (except as otherwise provided),
as of the Pass Through Closing Date, the Certificate Closing Date and the
Delivery Date that:
(i) it is a national banking association duly organized and validly
existing in good standing under the laws of the United States of America
and has the corporate power and authority to enter into and perform its
obligations under this Agreement, the Liquidity Facilities and the
Intercreditor Agreement;
(ii) the execution, delivery and performance of this Agreement, each
of the Liquidity Facilities and the Intercreditor Agreement and the
performance of its obligations hereunder and thereunder have been fully
authorized by all necessary corporate action on its part, and, neither the
execution and delivery thereof nor its performance of any of the terms and
provisions thereof will violate any Federal or Utah law or regulation
relating to its banking or trust powers or contravene or result in any
breach of, or constitute any default under its articles of association, or
bylaws or the provisions of any indenture, mortgage, contract or other
agreement to which it is a party or by which it or its properties may be
bound or affected;
(iii) each of this Agreement, the Liquidity Facilities and the
Intercreditor Agreement has been duly executed and delivered by it and,
assuming that each such agreement is the legal, valid and binding
obligation of each other party thereto, is or will be, as the case may be,
the legal, valid and binding obligation of the Subordination Agent,
enforceable in accordance with its respective terms except as limited by
bankruptcy, insolvency, moratorium, reorganization or other similar laws or
equitable principles of general application to or affecting the enforcement
of creditors' rights generally (regardless of whether such enforceability
is considered in a proceeding in equity or at law);
(iv) there are no Taxes payable by the Subordination Agent imposed
by the State of Utah or any political subdivision or taxing authority
thereof in connection with the execution, delivery and performance by
the Subordination Agent of this Agreement, any of the Liquidity
Facilities or the Intercreditor Agreement (other than franchise or other
taxes based on or measured by any fees or compensation received by the
Subordination Agent for services rendered in connection with the
transactions contemplated by the Intercreditor Agreement or any of the
Liquidity Facilities), and there are no Taxes payable by the
Subordination Agent imposed by the State of Utah or any political
subdivision thereof in connection with the acquisition, possession or
ownership by the Subordination Agent of any of the Certificates other
than franchise or other taxes based on or measured by any fees or
compensation received by the Subordination Agent for services rendered
in connection with the transactions contemplated by the Intercreditor
Agreement or any of the Liquidity Facilities);
(v) there are no pending or threatened actions or proceedings
against the Subordination Agent before any court or administrative agency
which individually or in the aggregate, if determined adversely to it,
would materially adversely affect the ability of the Subordination Agent to
perform its obligations under this Agreement, the Intercreditor Agreement
or any Liquidity Facility;
(vi) the Subordination Agent has not directly or indirectly offered
any Certificate for sale to any Person or solicited any offer to acquire
any Certificates from any Person, nor has the Subordination Agent
authorized anyone to act on its behalf to offer directly or indirectly any
Certificate for sale to any Person, or to solicit any offer to acquire any
Certificate from any Person; and the Subordination Agent is not in default
under any Liquidity Facility; and
(vii) the Subordination Agent is not directly or indirectly
controlling, controlled by or under common control with the Owner
Participant, the Owner Trustee, any Underwriter or the Lessee.
(b) Covenants. (i) The Subordination Agent agrees not to amend any
Liquidity Facility without the consent of the Lessee (so long as no Event of
Default shall have occurred and be continuing) and of the Owner Participant
(such consents not to be unreasonably withheld).
(ii) In connection with the deposit in the applicable Cash
Account of amounts drawn pursuant to any Downgrade Drawing under a
Liquidity Facility, the Subordination Agent agrees, so long as no Event of
Default shall have occurred and be continuing, to pay to the Lessee
promptly following each Regular Distribution Date any Investment Earnings
on the amount so deposited which remain after application of such
Investment Earnings pursuant to Section 2.06 of such Liquidity Facility to
the interest payable on such Downgrade Drawing under Section 3.07 of such
Liquidity Facility. Capitalized terms used in this Section shall have the
meanings specified in the Intercreditor Agreement.
ARTICLE 8
TAXES
Section 8.01. Lessee's Obligation to Pay Taxes. (a) Generally. The
Lessee agrees promptly to pay when due, and to indemnify and hold each
Indemnitee harmless from all license, recording, documentary, registration and
other fees and all taxes (including, without limitation, income, gross
receipts, sales, rental, use, value added, property (tangible and intangible),
ad valorem, excise and stamp taxes), fees, levies, imposts, recording duties,
duties, charges, assessments or withholdings of any nature whatsoever,
together with any assessments, penalties, fines, additions to tax or interest
thereon (individually, a "Tax," and collectively called "Taxes"), however
imposed or asserted (whether imposed upon any Indemnitee, the Lessee, all or
any part of the Aircraft, Airframe, any Engine or any Part or the Lessor's
Estate, the Trust Indenture Estate, Rent, the Certificates or otherwise upon
or with respect to any Operative Agreement, any payments thereunder or
otherwise in connection therewith), by any Federal, state or local government
or taxing authority in the United States, or by any government or taxing
authority of a foreign country or of any political subdivision or taxing
authority thereof or by a territory or possession of the United States or an
international taxing authority relating to or measured by:
(i) the construction, mortgaging, financing, refinancing, purchase,
acceptance, rejection, delivery, nondelivery, transport, location, ownership,
registration, reregistration, deregistration, insuring, assembly, possession,
repossession, operation, use, non-use, condition, maintenance, repair,
improvement, conversion, sale, return, abandonment, preparation, installation,
storage, redelivery, replacement, manufacture, leasing, subleasing,
sub-subleasing, modification, alteration, rebuilding, importation, transfer of
title, transfer of registration, exportation or other application or
disposition of, or the imposition of any Lien (or the incurrence of any
liability to refund or pay over any amount as a result of any Lien) on, the
Aircraft, the Airframe, any Engine or any Part or any interest therein;
(ii) amounts payable under the Operative Agreements;
(iii) the Property, or the income or other proceeds received with
respect to the Property attributable to the transactions contemplated by
the Operative Agreements, held by the Owner Trustee under the Trust
Agreement or after an Event of Default under the Lease, or by the Indenture
Trustee under the Indenture;
(iv) otherwise with respect to any Operative Agreement, any
interest therein or by reason of the transactions described in or
contemplated by the Operative Agreements;
(v) the principal or interest or other amounts payable with respect
to the Certificates;
(vi) the Pass Through Certificates or the Certificates or the
issuance, sale, acquisition, reoptimization, or refinancing thereof or the
beneficial interests in the Trust Estate or the Trust Indenture Estate or
the creation thereof under the Trust Agreement or the Indenture, or the
security interest created or perfected thereby or by any filing thereof;
(vii) any assumption by the Lessee pursuant to Section 7.11 of this
Agreement and Section 2.12 of the Indenture;
(viii) the Aircraft, the Airframe, any Engine or any Part; or
(ix) the rentals (including Basic Rent, Renewal Rent and
Supplemental Rent), receipts or earnings arising from the Operative
Agreements.
(b) Exceptions. The indemnity provided for in Section 8.01(a) shall
not extend to any of the following:
(i) With respect to an Indemnitee, Taxes based upon, measured by or
with respect to the net or gross income, items of tax preference or minimum
tax or excess profits, receipts, value-added taxes, capital, franchise, net
worth (whether denominated income, excise, capital stock, or doing
business taxes) or other similarly-based taxes (other than sales, use,
transfer, rental, ad valorem, stamp, property, or similar taxes) ("Income
Taxes"), provided, however, that this clause (i) shall not exclude from the
indemnity described in Section 8.01(a) above any such Income Taxes to the
extent such taxes are imposed by any jurisdiction in which the Indemnitee
would not be subject to such taxes but for, or would be subject to such
taxes solely as a result of, (x) the operation, registration, location,
presence, or use of the Aircraft, Airframe, any Engine or any Part thereof,
in such jurisdiction or (y) the place of incorporation or principal office
or the activities of the Lessee or any sublessee in such jurisdiction (it
being understood that (A) any such indemnity would be payable only to the
extent of the net harm incurred by the Indemnitee from such Income Taxes,
taking into account any incremental current Tax benefit in another tax
jurisdiction resulting from payment of such Income Taxes and (B) this
sentence would require indemnification in a jurisdiction in which the
Indemnitee is already subject to an Income Tax (an "Existing Income Tax")
only if an event set forth in Clause (x) or (y) of this sentence causes the
Indemnitee to be subject to an Income Tax in that jurisdiction (a "New
Income Tax") other than an Existing Income Tax, and such New Income Tax
would have been imposed even if the activities contemplated by the
Operative Agreements were the Indemnitee's sole nexus to the jurisdiction);
provided, further, that the provisions of this paragraph (b)(i) relating to
Income Taxes shall not exclude from the indemnity described in Section
8.01(a) hereof any Income Taxes for which the Lessee would be required to
indemnify an Indemnitee (x) so that any payment under the Operative
Agreements, otherwise required to be made on an After-Tax Basis, is made on
an After-Tax Basis or (y) pursuant to the last sentence of Section 8.02,
8.05, 9.02 or 9.05 of this Agreement;
(ii) [Reserved];
(iii) Taxes imposed with respect to the Aircraft and arising out
of or measured by acts, omissions, events or periods (or any combination
of the foregoing) which occur after the later of (A) the payment in full
of all amounts payable by the Lessee pursuant to and in accordance with
the Operative Agreements, or the earlier discharge in full of the
Lessee's payment obligations under and in accordance with the Lease and
the Operative Agreements, and (B) the earliest of (x) the expiration of
the Term of the Lease and return of the Aircraft in accordance with
Article 12 of the Lease, (y) the termination of the Lease in accordance
with the applicable provisions of the Lease and return of the Aircraft
in accordance with the Lease, or (z) the termination of the Lease in
accordance with the applicable provisions of the Lease and the transfer
of all right, title and interest in the Aircraft to the Lessee pursuant
to its exercise of any of its purchase options set forth in Section
4.02(a) of the Lease, provided that this exclusion (iii) shall not apply
in respect of any payment made after the dates set forth in clauses (A)
and (B) above unless such payment is made with respect to any event or
circumstance occurring on, with or prior to such return or transfer or
period prior to such return or transfer, or Taxes incurred in connection
with the exercise of any remedies pursuant to Article 17 of the Lease
following the occurrence of an Event of Default;
(iv) As to the Owner Trustee, Taxes imposed against the Owner
Trustee upon or with respect to any fees for services rendered in its
capacity as Owner Trustee under the Trust Agreement or, as to the
Indenture Trustee, Taxes imposed against the Indenture Trustee upon or
with respect to any fees received by it for services rendered in its
capacity as Indenture Trustee under the Indenture;
(v) Taxes imposed on an Indemnitee that would not have been imposed
but for the willful misconduct or gross negligence of such Indemnitee
(other than gross negligence or willful misconduct not actually committed
by but instead imputed to such Indemnitee by reason of such Indemnitee's
participation in the transactions contemplated by the Operative Agreements)
or the breach by such Indemnitee of: (i) in the case of an Indemnitee other
than the Owner Participant, any representation, warranty or covenant
contained in the Operative Agreements or any document delivered in
connection therewith and (ii) in the case of the Owner Participant, the
representations or covenants in Sections 7.02(a), (c); 7.03(a)(i), (ii),
(iii), (iv), (vii), (ix); and 7.03(b), (c), (d), (e) of this Agreement (in
either case unless attributable to a breach of representation, warranty or
covenant of the Lessee);
(vi) Taxes imposed on, and not collected by withholding from
payments of Rent, the Owner Trustee or the Owner Participant or any
successor, assign or Affiliate thereof which became payable by reason of
any voluntary or involuntary transfer or disposition by such Indemnitee
subsequent to the Delivery Date, including revocation of the Trust, of any
interest in some or all of the Aircraft, Airframe, Engines or Parts thereof
or its interest in the Lessor's Estate (not including any transfers of any
Certificates pursuant to Section 15.01(a) hereof) or a disposition in
connection with a bankruptcy or similar proceedings involving either the
Lessor or the Owner Participant other than (A) transfers resulting from a
loss, substitution or modification of the Aircraft, Engines or any Part,
(B) any transfer of the Aircraft, Engines or any Part (in each case other
than at Fair Market Value) to the Lessee or other person in possession
thereof, (C) transfers attributable to an Event of Default or (D) a
transfer pursuant to the Lessee's exercise of its rights under Section
10.01 of the Lease; the parties agree to cooperate to minimize any such
Taxes covered by this provision;
(vii) Taxes imposed on the Owner Participant for which the Lessee is
obligated to indemnify the Owner Participant pursuant to the Tax Indemnity
Agreement;
(viii) Taxes imposed on a successor, assign or other transferee
of the Owner Participant or the Owner Trustee that is not a U.S. Person
or an Indemnitee as of the date hereof under the Operative Agreements
(including, without limitation, a transferee which is a new lending
office of an original Indemnitee) which on the Certificate Closing Date
is an Indemnitee (for purposes of this clause (viii), an "original
Indemnitee") or such original Indemnitee to the extent that such Taxes
exceed the amount of Taxes that would have been imposed and would have
been indemnifiable pursuant to Section 8.01(a) hereof had there not been
a succession, assignment or other transfer by such original Indemnitee
of any such interest of such Indemnitee in the Aircraft or any Part, any
interest in or under any Operative Agreement, or any proceeds thereunder
(it being understood that for purposes of determining the amount of
indemnification that would have been due to such original Indemnitee
with respect to a net income Tax, it shall be assumed that such original
Indemnitee would be subject to taxation on its income at the highest
marginal statutory rate applicable to it), provided, however, that the
exclusion provided by this clause (viii) shall not apply in the case of
a succession, transfer or disposition (A) that occurs after the Lease
has been declared in default or if such transfer or disposition is
pursuant to the exercise of remedies under Article 17 of the Lease, (B)
which is an actual or deemed transfer pursuant to Section 7.11 hereof or
as a consequence of a Refinancing under Section 15.01 hereof, or any
actual or deemed transfer of a Certificate that as part of a Refinancing
under Section 15.01 hereof is not retired, but only to the extent the
Taxes attributable to such transfer exceed the amount of Taxes that
would have been imposed on such transferor if the debt had instead been
retired, (C) to the extent necessary to make payments with respect to
such Taxes on an After-Tax Basis, (D) to the extent such Taxes are
directly attributable to the failure of the Lessee to take
administrative actions as have been reasonably requested of it in
writing in a timely manner and which will result in no after-tax cost or
expense to the Lessee or (E) in the case of the Owner Participant or the
Lessor, to any Tax other than an Income Tax;
(ix) [Reserved];
(x) Any Taxes which have been included in the Purchase Price and
which have been paid to the applicable taxing authorities;
(xi) Any Taxes which would not have been imposed but for a Lessor's
Lien or an Indenture Trustee's Lien; and
(xii) Any Taxes imposed on the Owner Participant arising under or in
connection with any prohibited transaction, within the meaning of Section
406 of ERISA or Section 4975(c)(1) of the Code ("Prohibited Transaction");
provided, however, that in the event any prohibited transaction arises
which is not exempt under any class prohibited transaction exemption or any
individual or statutory prohibited transaction exemption (individually or
collectively, a "PTE") then the indemnity provided for herein shall extend
to any Taxes incurred by the Owner Participant (or any Affiliate thereof)
as the result of any Prohibited Transaction arising out of the purchase or
holding of any Loan Certificates by an employee benefit plan subject to
Title I of ERISA or by a plan subject to Section 4975 of the Code
(individually or collectively, an "ERISA Plan") with respect to which the
Owner Participant is a party in interest, within the meaning of Section
3(14) of ERISA, or a disqualified person,within the meaning of Section 4975
of the Code, except, however, that such Indemnity shall not extend to any
Taxes incurred by the Owner Participant (or any Affiliate thereof) as the
result of any Prohibited Transaction occurring with respect to the purchase
or holding of any Loan Certificates (A) over which purchase or holding the
Owner Participant (or an Affiliate thereof) has discretion or control
(other than in the capacity of a custodian, directed trustee or other
similar nondiscretionary capacity), or (B) by an ERISA Plan with respect to
which the Owner Participant (or any Affiliate thereof) is a "plan sponsor"
within the meaning of Section 3(16)(B) of ERISA.
(c) Withholding. The Pass Through Trustee shall withhold any Taxes
required to be withheld on payments to any holder of a Pass Through
Certificate who is a Non-U.S. Person except to the extent that such a holder
of a Pass Through Certificate has furnished evidence to the Pass Through
Trustee sufficient under applicable law to entitle such holder of a Pass
Through Certificate to any exemption from or reduction in the rate of
withholding on interest claimed by such holder of a Pass Through Certificate.
The Indenture Trustee shall withhold any Taxes required to be withheld on any
payment to a Holder pursuant to Section 5.09 of the Indenture. If the
Indenture Trustee or the Pass Through Trustee fails to withhold a Tax required
to be withheld with respect to any Holder of a Certificate or any holder of a
Pass Through Certificate or any claim is otherwise asserted by a taxing
authority against the Owner Trustee or Owner Participant for any withholding
tax, the Lessee will indemnify the Owner Trustee and the Owner Participant
(without regard to the exclusions set forth in Section 8.01(b) hereof) on an
After-Tax Basis against any such Taxes required to be withheld and any
interest and penalties with respect thereto, along with any other costs
(including reasonable attorney's fees) incurred in connection with any such
claim. The Indenture Trustee or the Pass Through Trustee, as the case may be,
in its individual capacity (and without recourse to the Trust Indenture
Estate), shall indemnify the Lessee (without regard to the exclusions set
forth in Section 8.01(b) hereof) on an After-Tax Basis for any payment the
Lessee shall have made pursuant to the preceding sentence.
Section 8.02. After-Tax Basis. The amount which the Lessee shall be
required to pay with respect to any Tax indemnified against under Section 8.01
shall be an amount sufficient to restore the Indemnitee, on an After-Tax
Basis, to the same position such party would have been in had such Tax not
been incurred, provided that the calculation of any additional amounts owing
to any Indemnitee as a result of the Lessee's obligation to indemnify on an
After-Tax Basis shall be made without regard to the exclusions set forth in
Section 8.01(b). If any Indemnitee actually realizes a tax benefit by
reason of the payment of any Tax paid or indemnified against by the Lessee,
such Indemnitee shall promptly pay to the Lessee, to the extent such tax
benefit was not previously taken into account in computing such payment,
but not before the Lessee shall have made all payments then due to such
Indemnitee under this Agreement, the Tax Indemnity Agreement and any other
Operative Agreement, an amount equal to the lesser of (x) the sum of such
tax benefit plus any other tax benefit actually realized by such Indemnitee
that would not have been realized but for any payment made by such
Indemnitee pursuant to this sentence and not already paid to the Lessee,
and (y) the amount of the payment made under Section 8.01 hereof and this
Section 8.02 by the Lessee to such Indemnitee plus the amount of any other
payments by the Lessee to such Indemnitee theretofore required to be made
under this Section 8.02 and Sections 8.01 and 8.05 hereof (and the excess,
if any, of the amount described in clause (x) above over the amount
described in clause (y) above shall be carried forward and applied to
reduce pro tanto any subsequent obligations of the Lessee to make payments
to such Indemnitee pursuant to Section 8.01 hereof); provided, however,
that notwithstanding the foregoing portions of this sentence, such
Indemnitee shall not be obligated to make any payment to the Lessee
pursuant to this sentence as long as an Event of Default shall have
occurred and be continuing under the Lease. The Lessee shall reimburse on
an After-Tax Basis such Indemnitee (and without regard to Section 8.01(b)
hereof, except for clause (v) thereof) for any payment of a tax benefit
pursuant to the preceding sentence (or a tax benefit otherwise taken into
account in calculating the Lessee's indemnity obligation hereunder) to the
extent that such tax benefit is subsequently disallowed or reduced
(including the expiration of any tax credit carryovers or carrybacks of
such Indemnitee that would not otherwise have expired).
Section 8.03. Time of Payment. Any amount payable to an Indemnitee
pursuant to this Article 8 shall be paid promptly, but in any event within 30
days after receipt of a written demand therefor from such Indemnitee
accompanied by a written statement describing in reasonable detail the basis
for such indemnity and the computation of the amount so payable, provided that
in the case of amounts which are being contested by the Lessee in good faith
or by the Indemnitee in either case pursuant to Section 8.04 hereof, such
amount shall be payable within 30 days after the time such contest is finally
resolved.
Section 8.04. Contests. If a written claim is made against any
Indemnitee for Taxes with respect to which the Lessee is liable for a payment
or indemnity hereunder, such Indemnitee shall promptly (but in any event
within 30 days of receipt thereof) give the Lessee notice in writing of such
claim and shall furnish the Lessee with copies of any written requests for
information sent to such Indemnitee (and not the Lessee) from any taxing
authority to the extent relating to such Taxes with respect to which the
Lessee may be required to indemnify hereunder and with respect to which it
would be necessary or beneficial to have information provided by the Lessee;
provided, however, that the failure of an Indemnitee to give such notice or
furnish such copy shall not terminate any of the rights of such Indemnitee
under this Article 8, except to the extent that the Lessee's contest rights
have been materially and adversely impaired by the failure to provide such
notice or copy. The Lessee may, at its option, contest in its own name or, if
required by law, require the Indemnitee to contest in good faith, with due
diligence and at the Lessee's expense, if timely requested in writing by the
Lessee, the validity, applicability or amount of such Taxes by:
(i) resisting payment thereof if lawful and practicable or not
paying the same except under protest if protest is necessary and proper in
each case so long as non-payment will not result in a material risk of the
sale, forfeiture or loss of, or the creation of a Lien other than a
Lessor's Lien on the Aircraft, Airframe or any Engine or any risk of
criminal liability; or
(ii) if the payment be made, using reasonable efforts to obtain a
refund thereof in appropriate administrative and judicial proceedings.
Notwithstanding the foregoing, the Lessee shall not be permitted or entitled
to contest any such Tax in its own name unless the Tax is reflected in a
report or a return of the Lessee or raised in an audit or other proceeding of
the Lessee and the Lessee is allowed to directly contest such Tax under
applicable law of the taxing jurisdiction provided, that if the Lessee is so
permitted under applicable law to contest a Tax asserted against the Lessee
and the same or similar Tax is also asserted against the Indemnitee, each of
the Lessee and such Indemnitee shall conduct its contest in its own name and
the Lessee and such Indemnitee will cooperate in a reasonable manner with
respect to the respective contests of such Tax.
If the Indemnitee, after reasonable discussion with the Lessee and
consideration in good faith of any suggestion made by the Lessee as to the
method of pursuing such contest, elects to conduct the contest, such
Indemnitee shall control the contest and shall determine the manner in which
to contest such Taxes and shall periodically or upon the Lessee's request
advise the Lessee of the progress of such contest; provided, however, that the
Lessee shall have the right to be consulted in good faith with respect to any
contest of claims subject to indemnification hereunder, including governmental
and judicial conferences and the right to be consulted in good faith regarding
the relevant portions of all related submissions to any governmental or other
authority, provided, however, that the Lessee shall be permitted to
participate in any such contest only (x) with respect to issues that can be
separated on audit from any Taxes for which the Lessee is not required to
indemnify the Indemnitee hereunder, and (y) if the Indemnitee shall have
determined that in its judgment, exercised in its sole discretion, neither
such participation nor the separation of issues will adversely affect the
Indemnitee. The Indemnitee will not settle a contest that results in a final
determination without consent of the Lessee, unless the Indemnitee waives its
right to indemnification with respect to such contest and any related contest.
Notwithstanding the preceding sentences of this Section 8.04, such Indemnitee
shall not be required to take or continue any action unless the Lessee shall
have (i) agreed in writing to pay and shall pay the Indemnitee on a current
basis and on an After-Tax Basis the after-tax cost of all reasonable fees and
expenses (including reasonable attorneys' fees and accountants' fees) which
such Indemnitee may incur as a result of contesting such Taxes, (ii) made all
payments and indemnities (other than contested payments and indemnities) then
due to the Indemnitee hereunder or with respect to any of the transactions
contemplated by or under the Operative Agreements and (iii) acknowledged in
writing the Lessee's obligation to such Indemnitee pursuant to this Agreement
to the extent that the contest is not successful, unless it is reasonably
clear from the resolution of the contest that an exclusion set forth in
Section 8.01(b) hereof applies. In no event shall such Indemnitee be required
or the Lessee be permitted to contest pursuant to this Section 8.04 the
imposition of any Tax for which the Lessee is obligated to indemnify any
Indemnitee hereunder unless (i) such Indemnitee shall have received, at the
Lessee's expense, an opinion of its tax counsel, such counsel to be reasonably
satisfactory to the Lessee ("Tax Counsel"), to the effect that there exists a
reasonable basis for contesting such claim, (ii) such Indemnitee (and, if such
Indemnitee is not the Owner Participant, the Owner Participant and such
Indemnitee) shall have determined that such contest will not result in any
material risk of loss, sale or forfeiture of, or the creation of a Lien (other
than Lessor's Liens) on, the Aircraft or any part thereof or interest thereon
or in a risk of criminal liability, or adversely affect the Trust Indenture
Estate, (iii) if a Payment Default, Bankruptcy Default or an Event of Default
shall have occurred and be continuing, the Lessee shall have provided security
for its obligations hereunder reasonably satisfactory to the Indemnitee, (iv)
if such contest shall be conducted in a manner requiring payment of the claim
in advance, the Lessee shall have advanced sufficient funds, on an interest
free basis, to make the payment required, and agreed to indemnify the
Indemnitee against any additional net adverse tax consequences on an After-Tax
Basis to such Indemnitee of such advance, (v) the issue shall not be the same
as an issue previously contested hereunder and decided adversely, unless the
Indemnitee shall have received at the Lessee's sole expense, a written
opinion, in form and substance reasonably satisfactory to such Indemnitee, of
Tax Counsel to the effect that the applicable circumstances or law has changed
and that in light thereof, there is substantial authority for contesting such
claim and (vi) the amount of the indemnity payments the Lessee would be
required to make with respect to such adjustment, when aggregated with similar
adjustments that could be raised in other taxable years of such Indemnitee
exceeds $50,000; provided, that in the event that such Indemnitee is not
required under this paragraph to contest any Tax liability for which the
Lessee is obligated to indemnify any Indemnitee, the Lessee may contest such
Tax liability in the name of the Lessee, if permitted by law. The Lessee may
appeal or require the Indemnitee to appeal any judicial decision provided the
foregoing requirements of this Section 8.04 are met and the Indemnitee shall
have received, at the Lessee's expense, an opinion of Tax Counsel, to the
effect that there is substantial authority for such appeal.
Nothing contained in this Section 8.04 shall require any
Indemnitee to contest or continue to contest, or permit Lessee to contest,
a claim which such Indemnitee would otherwise be required to contest
pursuant to this Section 8.04, if such Indemnitee shall waive payment by
Lessee of any amount that might otherwise be payable by Lessee under this
Article 8 in connection with such claim.
Section 8.05. Refunds. Upon receipt by an Indemnitee of a refund of
all or any part of any Taxes which the Lessee shall have paid for such
Indemnitee or for which the Lessee shall have reimbursed or indemnified such
Indemnitee, and provided there shall not have occurred and be continuing any
Payment Default, Bankruptcy Default or Event of Default by the Lessee
hereunder or under the Lease (in which case payment shall not be made to the
Lessee until such Payment Default, Bankruptcy Default or Event of Default
shall have been cured), such Indemnitee shall pay to the Lessee an amount
equal to the amount of such refund less (x) any expenses not previously
reimbursed, (y) all payments then due to such Indemnitee under this Article
8 and (z) Taxes imposed with respect to the accrual or receipt thereof,
including interest received attributable thereto, plus any tax benefit
actually realized by such Indemnitee as a result of any payment by such
Indemnitee made pursuant to this sentence; provided, however, that such amount
shall not be payable (a) before such time as the Lessee shall have made all
payments or indemnities then due and payable to such Indemnitee under this
Article 8 and (b) to the extent that the amount of such payment would exceed
(i) the amount of all prior payments by the Lessee to such Indemnitee pursuant
to this Article 8 less (ii) the amount of all prior payments by such
Indemnitee to the Lessee pursuant to this Article 8.
Any subsequent loss of such refund or tax benefit shall be treated as
a Tax subject to indemnification under the provisions of this Article 8 (in
the case of any such tax benefit, without regard to Section 8.01(b) hereof).
Section 8.06. Lessee's Reports. In case any report or return is
required to be made with respect to any Taxes against which the Lessee is or
may be obligated to indemnify the Indemnitees under this Article 8, the Lessee
shall make such report or return, except for any such report or return that
the Indemnitee has notified the Lessee that it intends to file, in such manner
as will show the ownership of the Aircraft in the Owner Trustee and shall send
a copy of the applicable portions of such report or return to the Indemnitee
and the Owner Trustee or will notify the Indemnitee of such requirement and
make such report or return in such manner as shall be satisfactory to such
Indemnitee and the Owner Trustee. The Lessee will provide such information
reasonably available to the Lessee as the Indemnitee may reasonably require
from the Lessee to enable the Indemnitee to fulfill its tax filing
requirements with respect to the transactions contemplated by the Operative
Agreements (without duplication of the requirements of Section 3 of the Tax
Indemnity Agreement) and any audit information request arising from any such
filing. The Indemnitee will provide such information reasonably available to
it as the Lessee may reasonably require from such Indemnitee to enable the
Lessee to fulfill its tax filing requirements with respect to the transactions
contemplated by the Operative Agreements and any audit information request
arising from such filing; provided that in no event shall any Indemnitee be
required to provide copies of any of its tax returns or other confidential
information. The Lessee shall hold the Indemnitee harmless on an After-Tax
Basis from and against any liabilities, including penalties, additions to tax,
fines and interest, imposed upon or incurred by such Indemnitee to the extent
directly attributable to any insufficiency or inaccuracy in any return,
statement, or report prepared by the Lessee or information supplied by the
Lessee, or directly attributable to the Lessee's failure to supply reasonably
available information to such Indemnitee as required by this Section 8.06.
Section 8.07. Survival of Obligations. The representations,
warranties, indemnities and agreements of the Lessee provided for in this
Article 8 and the Lessee's obligations under any and all of them shall survive
the expiration or other termination of the Operative Agreements.
Section 8.08. Payment of Taxes. With respect to any Tax otherwise
indemnifiable hereunder by the Lessee and applicable to the Aircraft,
Airframe, any Engine or Parts, to the extent permitted by the applicable
federal, state, local or foreign law, the Lessee shall pay such tax directly
to the relevant Taxing authority and file any returns or reports required with
respect thereto to the extent legally entitled to do so in its own name;
provided, however, that the Lessee shall not make any statements or take any
action which would indicate that the Lessee or any Person other than the Owner
Trustee or Owner Participant is the owner of the Aircraft, the Airframe, any
Engine or any Part or which would otherwise be inconsistent with the terms of
the Lease or the Tax Indemnity Agreement and the position thereunder of the
Owner Trustee and the Owner Participant. Copies of such returns or reports,
together with evidence of payment of any tax due, shall be sent by the Lessee
to the Owner Participant within thirty (30) days after the date of each
payment by the Lessee of any Tax.
Section 8.09. Reimbursements by Indemnitees Generally. To the
extent the Lessee is required to pay or withhold any Tax imposed on or with
respect to an Indemnitee in respect of the transactions contemplated by the
Operative Agreements, which Tax is not otherwise the responsibility of the
Lessee under the Operative Agreements, or any other written agreements between
the Lessee and such Indemnitee, then such Indemnitee shall pay to the Lessee
within 30 days of the Lessee's demand therefor an amount which equals the
amount actually paid by the Lessee with respect to such Taxes.
Section 8.10. Special Indemnity. Notwithstanding anything in this
Article 8 to the contrary, the Lessee shall hold the Owner Participant
harmless on an After-Tax Basis from any Taxes or losses arising from or in
connection with the transactions contemplated by Section 17.02 hereof.
ARTICLE 9
GENERAL INDEMNITY
Section 9.01. Generally. (a) The Lessee agrees to indemnify each
Indemnitee against and agrees to protect, defend, save and keep harmless each
Indemnitee from any and all liabilities, obligations, losses, damages,
penalties, claims, actions, suits, costs, disbursements and expenses
(including legal fees and expenses and all costs and expenses relating to
amendments, supplements, adjustments, consents, refinancings and waivers under
the Operative Agreements except as otherwise provided in Section 10.01(c)(i)
or Article 15 hereof) of every kind and nature, including without limitation
Make-Whole Premium (unless excluded pursuant to Section 3.03 of the Lease)
(whether or not any of the transactions contemplated by this Agreement are
consummated) (individually, an "Expense," collectively, "Expenses"), which
may be imposed on, incurred or suffered by or asserted against any Indemnitee,
in any way relating to, based on or arising out of:
(i) this Agreement (including, without limitation, the execution,
delivery and performance hereof by the Owner Participant prior to the
delivery of the Aircraft), the Lease, the Indenture, the Trust Agreement,
the Intercreditor Agreement, the Liquidity Facilities, the Pass Through
Agreement, AVSA's FAA Bill of Sale, AVSA's Warranty Bill of Sale or any
other Operative Agreement or any other document entered into in connection
herewith or any sublease or transfer or any transactions contemplated
hereby or thereby;
(ii) the operation, possession, use, non-use, maintenance, storage,
overhaul, delivery, non-delivery, control, repair or testing of the
Aircraft, Airframe, or any Engine or any engine used in connection with the
Airframe, or any part thereof by the Lessee, any sublessee or any other
Person whatsoever, whether or not such operation, possession, use, non-use,
maintenance, storage, overhaul, delivery, non-delivery, control, repair or
testing is in compliance with the terms of the Lease, including without
limitation, claims for death, personal injury or property damage or other
loss or harm to any Person whatsoever, including, without limitation, any
passengers, shippers or other Persons wherever located, and claims relating
to any laws, rules or regulations, including, without limitation,
environmental control, noise and pollution laws, rules or regulation;
(iii) the manufacture, design, sale, return, purchase, acceptance,
rejection, delivery, non-delivery, condition, repair, modification,
servicing, rebuilding, airworthiness, registration, reregistration, import,
export, performance, non-performance, lease, sublease, transfer,
merchantability, fitness for use, alteration, substitution or replacement
of any Airframe, Engine, or Part under the Lease, the Purchase Agreement,
the Purchase Agreement Assignment, the GTA or the Engine Warranty
Assignment or other transfer of use or possession, or other disposition of
the Aircraft, the Airframe, any Engine or any Part including, without
limitation, latent and other defects, whether or not discoverable, strict
tort liability, and any claims for patent, trademark or copyright
infringement;
(iv) any breach of or failure to perform or observe, or any other
non-compliance with, any condition, covenant or agreement to be performed,
or other obligations of the Lessee under any of the Operative Agreements,
or the falsity or inaccuracy of any representation or warranty of the
Lessee in any of the Operative Agreements (other than representations and
warranties in the Tax Indemnity Agreement);
(v) the Collateral Account and the Liquid Collateral;
(vi) the enforcement of the terms of the Operative Agreements and
the administration of the Trust Indenture Estate; and
(vii) the offer, issuance, sale or delivery of any Certificate or any
Pass Through Certificate, or any refunding or refinancing thereof, or
interest in the Lessor's Estate or the Trust Agreement or any similar
interest or in any way relating to or arising out of the Trust Agreement
and the Lessor's Estate, the Indenture or the Trust Indenture Estate
(including, without limitation, any claim arising out of the Securities Act
of 1933, as amended, the Securities Exchange Act of 1934, as amended, or
any other federal or state statute, law or regulation, or at common law or
otherwise relating to securities), or the action or inaction of the Owner
Trustee or Indenture Trustee as trustees, in the manner contemplated by
this Agreement, the Indenture, the Indenture and Security Agreement
Supplement or the Trust Agreement and in the case of the Owner Participant,
its obligations arising under Section 6.01 of the Trust Agreement.
The foregoing indemnity by the Lessee is intended to include and cover, but is
not limited to, any Expense to which the Indemnitees may be subject as a
result of their respective ownership or leasing of any interest in or holding
of any Lien on the Aircraft, Airframe, any Engine or Part during the Term,
whether or not in the Lessee's possession or control, insofar as such Expense
relates to any activity or event whatsoever involving such item while it is
under lease to the Lessee (or after termination of the Lease in connection
with the exercise of remedies thereunder to the extent that such Expense is
attributable to the transactions contemplated hereby and by the other
Operative Agreements), and such Expense does not fall within any of the
exceptions listed in Section 9.01(b) hereof.
(b) Exceptions. The indemnity provided for in Section 9.01(a) shall
not extend to any Expense of any Indemnitee to the extent it:
(i) would not have occurred but for the willful misconduct or gross
negligence of such Indemnitee;
(ii) after the Delivery Date, is in respect of the Aircraft, and is
attributable to acts or events which occur after the Aircraft is no longer
part of the Lessor's Estate or, if the Aircraft remains a part of the
Lessor's Estate, after the expiration of the Term (unless the Aircraft is
being returned at such time, in which case after return of physical
possession; provided that if the Lease has been terminated pursuant to
Article 17 thereof, the indemnity provided in Section 9.01(a) hereof shall
survive for so long as Lessor or the Indenture Trustee shall be exercising
remedies under such Article 17), or to acts or events which occur after
return of possession of the Aircraft by the Lessee in accordance with the
provisions of the Lease (subject to the foregoing proviso if the Lessor has
terminated the Lease pursuant to Article 17 of the Lease) but in any such
case only to the extent not fairly attributable to acts or omissions of the
Lessee prior to expiration of the Term, including without limitation the
Lessee's failure to fully discharge all of its obligations under the Lease
or the other Operative Agreements;
(iii) is a Tax, whether or not the Lessee is required to indemnify
therefor pursuant to Article 8 hereof or pursuant to the Tax Indemnity
Agreement;
(iv) is a cost or expense required to be paid by the Owner
Participant or its permitted transferees (and not by the Lessee) pursuant
to this Agreement or any other Operative Agreement and for which the Lessee
is not otherwise obligated to reimburse the Owner Participant, directly or
indirectly pursuant to the terms of this Agreement or such other Operative
Agreement;
(v) would not have been incurred by such Indemnitee if such
Indemnitee had not been in breach of its representations or warranties, or
had not defaulted in the observance and performance of the terms and
provisions required to be observed and performed by it, in this Agreement,
the Purchase Agreement Assignment, the Lease, the Indenture, the Trust
Agreement or any other Operative Agreement to which it is a party unless
such breach or default shall be a result of the breach or default by the
Lessee of any of its obligations under the Operative Agreements or by
another Indemnitee of any of the foregoing;
(vi) [reserved];
(vii) is, in the case of the Owner Participant, Lessor's Liens to the
extent attributable to the Owner Participant; in the case of the Owner
Trustee, Lessor's Liens to the extent attributable to the Owner Trustee; in
the case of SSB, Lessor's Liens to the extent attributable to SSB; and in
the case of the Indenture Trustee, Indenture Trustee's Liens;
(viii) is, in the case of the Owner Participant or the Owner Trustee,
attributable to the offer or sale by such Indemnitee after the Certificate
Closing Date of any interest in the Aircraft, the Lessor's Estate or the
Trust Agreement or any similar interest (including an offer or sale
resulting from bankruptcy or other proceedings for the relief of debtors in
which such Indemnitee is the debtor), unless in each case such offer or
sale shall occur (x) in connection with a Refinancing, (y) as a result of
the occurrence of an Event of Default provided that either the Lease has
been declared in default or the transfer is pursuant to the exercise of
remedies under Article 17 of the Lease or (z) in connection with the
Lessee's exercise of its early termination option under Article 10 of the
Lease or its purchase options under Article 4 of the Lease or in connection
with Article 11 of the Lease;
(ix) is an Expense arising under or in connection with any
prohibited transaction, within the meaning of Section 406 of ERISA or
Section 4975(c)(1) of the Code ("Prohibited Transaction"); provided,
however, that in the event any prohibited transaction arises which is
not exempt under any class prohibited transaction exemption or any
individual or statutory prohibited transaction exemption (individually
or collectively, a "PTE") then the indemnity provided for herein shall
extend to any Expenses incurred by the Owner Participant (or any
Affiliate thereof) as the result of any Prohibited Transaction arising
out of the purchase or holding of any Certificates by an employee
benefit plan subject to Title I of ERISA or by a plan subject to Section
4975 of the Code (individually or collectively, an "ERISA Plan") with
respect to which the Owner Participant is a party in interest, within
the meaning of Section 3(14) of ERISA, or a disqualified person,within
the meaning of Section 4975 of the Code, except, however, that such
Indemnity shall not extend to any Expenses incurred by the Owner
Participant (or any Affiliate thereof) as the result of any Prohibited
Transaction occurring with respect to the purchase or holding of any
Certificates (A) over which purchase or holding the Owner Participant
(or an Affiliate thereof) has discretion or control (other than in the
capacity of a custodian, directed trustee or other similar
nondiscretionary capacity), or (B) by an ERISA Plan with respect to
which the Owner Participant (or any Affiliate thereof) is a "plan
sponsor" within the meaning of Section 3(16)(B) of ERISA.
Section 9.02. After-Tax Basis. The amount which the Lessee shall be
required to pay with respect to any Expense indemnified against under Section
9.01 shall be an amount sufficient to restore the Indemnitee, on an After-Tax
Basis, to the same position such party would have been in had such Expense not
been incurred. If any Indemnitee actually realizes a permanent Tax benefit by
reason of the payment of such Expense paid or indemnified against by the
Lessee which was not considered in the computation thereof, such Indemnitee
shall promptly pay to the Lessee, but not before the Lessee shall have made
all payments theretofore due such Indemnitee under this Agreement, the Tax
Indemnity Agreement and any other Operative Agreement, an amount equal to the
lesser of (x) the sum of such Tax benefit plus any other permanent Tax benefit
actually realized by such Indemnitee as the result of any payment made by such
Indemnitee pursuant to this sentence and (y) the amount of such payment
pursuant to this Section 9.02 by the Lessee to such Indemnitee plus the amount
of any other payments by the Lessee to such Indemnitee theretofore made
pursuant to this Section 9.02 less the amount of any payments by such
Indemnitee to the Lessee theretofore made pursuant to this Section 9.02 (and
the excess, if any, of the amount described in clause (x) above over the
amount described in clause (y) above shall be carried forward and applied to
reduce pro tanto any subsequent obligations of the Lessee to make payments to
such Indemnitee pursuant to this Section 9.02), it being intended that no
Indemnitee should realize a net Tax benefit pursuant to this Section 9.02
unless the Lessee shall first have been made whole for any payments by it to
such Indemnitee pursuant to this Section 9.02; provided, however, that
notwithstanding the foregoing portions of this sentence, such Indemnitee shall
not be obligated to make any payment to the Lessee pursuant to this sentence
so long as an Event of Default shall have occurred and be continuing. Any
Taxes that are imposed on any Indemnitee as a result of the disallowance or
reduction of such Tax benefit referred to in the next preceding sentence in a
taxable year subsequent to the year of allowance and utilization by such
Indemnitee (including the expiration of any tax credit carryovers or
carrybacks of such Indemnitee that would not otherwise have expired) shall be
indemnifiable pursuant to the provisions of Section 8.01 hereof without regard
to Section 8.01(b) hereof.
Section 9.03. Subrogation. Upon the payment in full of any
indemnity pursuant to this Article 9 by the Lessee (but not earlier), the
Lessee shall be subrogated to any right of the Indemnitee, other than with
respect to any of such Indemnitee's insurance policies or in connection
with any indemnity claim the Person indemnified may have against any other
Indemnitee in respect of the matter against which such indemnity has been
made.
Section 9.04. Notice and Payment. Each Indemnitee and the Lessee
shall give prompt written notice one to the other of any liability of which
such party has received notice for which the Lessee is, or may be, liable
under this Article 9; provided, however, that failure to give such notice
shall not terminate any of the rights of the Indemnitees under this Article 9,
except (with respect to such Indemnitee) to the extent that the Lessee has
been materially prejudiced by the failure to provide such notice. Unless
otherwise provided in the Operative Agreements, any amount payable to an
Indemnitee pursuant to this Article 9 shall be paid within 30 days after
receipt of a written demand therefor from such Indemnitee accompanied by a
written statement describing in reasonable detail the basis for such indemnity
and the computation of the amount so payable.
Section 9.05. Refunds. If any Indemnitee shall obtain a recovery of
all or any part of any amount which the Lessee shall have paid to such
Indemnitee or for which the Lessee shall have reimbursed such Indemnitee under
this Article 9, and provided there shall not have occurred a Payment Default
or an Event of Default (in which case payment shall not be made to the Lessee
until such Payment Default or Event of Default shall have been cured) such
Indemnitee shall pay to the Lessee the amount of any such recovery, including
interest received with respect to the recovery, net of any Taxes paid or
payable as a result of the receipt of the recovery and interest, plus any net
additional permanent income tax benefits actually realized by Indemnitee as
the result of any payment made pursuant to this sentence less any reasonable
costs and expense of any Indemnitee not reimbursed by the Lessee; provided,
however, that such amount shall not be payable (a) before such time as the
Lessee shall have made all payments or indemnities then due and payable to
such Indemnitee under this Article 9 or (b) to the extent that the amount of
such payment would exceed the amount of all prior payments by the Lessee to
such Indemnitee pursuant to this Article 9, less the amount of all prior
payments by such Indemnitee to the Lessee pursuant to this Article 9. Any
subsequent loss of such recovery or tax benefit shall be subject to
indemnification under Article 8 or this Article 9, as the case may be, but
without regard to Section 8.01(b) hereof, other than Section 8.01(b)(v)
hereof.
Section 9.06. Defense of Claims. The Lessee or its insurers shall
have the right (in each such case at the Lessee's sole expense) to investigate
or, provided that (i) the Lessee or its insurers shall not reserve the right
to dispute liability with respect to any insurance policies pursuant to which
coverage is sought, (ii) in the case of the Lessee, no Payment Default or
Event of Default shall have occurred and be continuing or shall arise at any
time during the claim and (iii) the Lessee shall have first acknowledged in
writing to such Indemnitee the Lessee's obligation to indemnify such
Indemnitee hereunder in respect of such claim, defend any such claim
covered by insurance for which indemnification is sought pursuant to this
Article 9 and each Indemnitee shall cooperate with the Lessee or its
insurers with respect thereto, and provided, further, the Lessee shall not
be entitled to assume and control the defense of any such claim if and to
the extent (A) such Indemnitee reasonably objects to such control on the
ground that an actual or potential material conflict of interest exists
where it is advisable for such Indemnitee to be represented by separate
counsel or on the grounds that such proceeding involves the potential
imposition of criminal liability on such Indemnitee or (B) such proceeding
will involve any material danger of the sale, forfeiture or loss of, or the
creation of any Lien on the Aircraft or the Trust Estate (unless the Lessee
posts a bond or other security reasonably acceptable in form and substance
to such Indemnitee) or involve any material risk of civil liability to such
Indemnitee for which it is not indemnified hereunder. Subject to the
immediately foregoing sentence, where the Lessee or the insurers under a
policy of insurance maintained by the Lessee undertake the defense of an
Indemnitee with respect to such a claim, no additional legal fees or
expenses of such Indemnitee in connection with the defense of such claim
shall be indemnified hereunder unless the fees or expenses were incurred at
the written request of the Lessee or such insurers. Subject to the
requirement of any policy of insurance applicable to a claim, an Indemnitee
may participate at its own expense at any judicial proceeding controlled by
the Lessee or its insurers pursuant to the preceding provisions, to the
extent that such party's participation does not, in the opinion of the
independent counsel appointed by the Lessee or its insurers to conduct such
proceedings, interfere with such control; and such participation shall not
constitute a waiver of the indemnification provided in this Section 9.06.
No Indemnitee shall enter into any settlement or other compromise with
respect to any claim described in this Section 9.06 without the prior
written consent of the Lessee, which consent shall not unreasonably be
withheld or delayed, unless such Indemnitee waives its right to be
indemnified under this Article 9 with respect to such claim. The Lessee
shall not enter into any settlement or compromise which the Lessee has not
agreed to discharge or with respect to which the Lessee has not agreed to
indemnify such Indemnitee to such Indemnitee's satisfaction or which admits
any criminal violation, gross negligence or willful misconduct on the part
of any Indemnitee without the prior written consent of such Indemnitee.
Section 9.07. Survival of Obligations. The representations,
warranties, indemnities and agreements of the Lessee provided for in this
Article 9 and the Lessee's obligations under any and all of them shall survive
the expiration or other termination of this Agreement, the Tax Indemnity
Agreement, the Trust Agreement, the Indenture, the Purchase Agreement
Assignment, the Engine Warranty Assignment, the Lease and the other Operative
Agreements but, as to such indemnities after the expiration or other
termination of the Lease, only with respect to losses, liabilities,
obligations, damages, penalties, claims, actions, suits, costs, Expenses and
disbursements caused by events occurring or existing (or fairly attributable
to the Lessee's acts or omissions) prior to such termination or expiration or
incurred in the process of (i) the return or disposition of the Aircraft under
Article 12 or Article 17 of the Lease, or (ii) the termination of the Lease or
the Indenture or, if later, the return of the Aircraft.
Section 9.08. Effect of Other Indemnities. The Lessee's obligations
under the indemnities provided for in this Agreement shall be those of a
primary obligor whether or not the Person indemnified shall also be
indemnified with respect to the same matter under the terms of this Agreement,
the Lease, the Indenture, the Trust Agreement, or any other document or
instrument, and the Person seeking indemnification from the Lessee pursuant to
any provision of this Agreement may proceed directly against the Lessee
without first seeking to enforce any other right of indemnification.
Section 9.09. Interest. The Lessee will pay to each Indemnitee on
demand, to the extent permitted by applicable law, interest on any amount of
indemnity not paid when due pursuant to this Article 9 until the same shall be
paid, at the Past Due Rate.
Section 9.10. Special Indemnity. Notwithstanding anything in this
Article 9 to the contrary, the Lessee shall hold the Owner Participant
harmless on an After-Tax Basis from any Taxes or losses arising from or in
connection with the transactions contemplated by Section 17.02 hereof.
ARTICLE 10
TRANSACTION COSTS
Section 10.01. Transaction Costs and Other Costs. (a) Transaction
Costs. The Owner Participant shall pay (or reimburse the Lessee if the Lessee
shall have previously made such payment) all fees and expenses of the
following persons relating to the public offering of the Pass Through
Certificates contemplated by the Underwriting Agreement and related to the
transactions contemplated hereby on the Certificate Closing Date and the
Delivery Date: (i) the fees and expenses of counsel for the Owner Participant;
(ii) the fees and expenses of the transaction documentation counsel for the
Lessee and counsel for the Owner Trustee, the Indenture Trustee, the
Subordination Agent, the Pass Through Trustee, each Liquidity Provider and the
Underwriters (other than those fees, expenses and disbursements payable by the
Underwriters pursuant to the Underwriting Agreement); (iii) the fees and
expenses of Daugherty, Fowler & Peregrin; (iv) any initial fees and expenses
of the Pass Through Trustee and each Liquidity Provider and the fees and
expenses of the Owner Trustee, the Subordination Agent and the Indenture
Trustee; (v) any compensation, commissions and discounts payable to the
Underwriters pursuant to the Underwriting Agreement; (vi) the fees, if any,
incurred in printing the Pass Through Certificates; (vii) the fees and
expenses incurred in connection with printing any amendment to the
Registration Statement on Form S-3 bearing Registration No. 333-07691,
printing any Preliminary Prospectus or Prospectus (as such terms are defined
in the Underwriting Agreement) for the offering of the Pass Through
Certificates; (viii) the fees and expenses of Arthur Andersen LLP; (ix) the
fees and expenses of Moody's and S&P; (x) the fees and expenses (including
computer time-sharing charges) of First Chicago Leasing Corporation; (xi) the
reasonable out-of-pocket expenses of the Owner Participant, including, without
limitation, any amounts paid in connection with any appraisal report prepared
on behalf of the Owner Participant; (xii) reimbursement to the Owner
Participant, the Owner Participant Guarantor, the Owner Trustee, the Indenture
Trustee, the Subordination Agent, each Liquidity Provider and the Pass Through
Trustee for any and all fees, expenses and disbursements of the character
referred to above or otherwise incurred in connection with the negotiation,
preparation, execution and delivery, filing and recording of the Operative
Agreements and the documents contemplated thereby, including, without
limitation, travel expenses and disbursements which shall have been paid by
such party; (xiii) printing and duplicating expenses and all fees, taxes and
other charges payable in connection with the recording or filing on or
before the Delivery Date of the instruments described in this Agreement;
(xiv) initial fees, initial expenses, initial disbursements and the initial
costs of distributing the Certificates (but not the continuing fees,
expenses, disbursements and costs of distribution) of SSB, as lessor under
the Lease and as Owner Trustee under the Trust Agreement and with respect
to the administration of the Lease and the Lessor's Estate, of the
Indenture Trustee as trustee under the Indenture with respect to the
administration of the Trust Indenture Estate and of the Subordination Agent
acting under the Intercreditor Agreement; and (xv) any other amounts
approved by the Lessee and the Owner Participant. The fees and expenses
described in clauses (ii) through (x) of this paragraph shall be allocable
to the Owner Participant under this Agreement (1) to the extent incurred
specifically with respect to the Owner Participant, and (2) to the extent
such fees and expenses are incurred but are not specifically attributable
to the Owner Participant, in the proportion that the principal amount of
the Certificates bears to the total amount of the Pass Through
Certificates.
The Owner Participant, the Owner Trustee and the Lessee acknowledge
that the percentages for Basic Rent, Stipulated Loss Value and Termination
Value set forth in the Lease have been prepared assuming the aggregate amount
payable by the Owner Participant pursuant to the preceding paragraph is 1.16%
of the Purchase Price (the "Estimated Expense Amount"). Transaction Costs
shall be paid in the manner provided in Section 3.04 hereof.
(b) Continuing Expenses. The continuing fees, expenses and
disbursements (including reasonable counsel fees and expenses) of the entity
acting as Owner Trustee, as lessor under the Lease and as Owner Trustee under
the Trust Agreement with respect to the administration of the Lease and the
Lessor's Estate and the continuing fees, expenses and disbursements (including
reasonable counsel fees and expenses and initial fees relating to the
establishment of any replacement trustee) of the Indenture Trustee, as trustee
under the Indenture with respect to the administration of the Trust Indenture
Estate, the continuing fees, expenses and disbursements (including reasonable
counsel fees and initial fees relating to the establishment of a replacement
trustee) of the Pass Through Trustee and the Subordination Agent and the
continuing fees, expenses and disbursements (including reasonable counsel fees
and initial fees relating to the establishment of a replacement liquidity
provider) of the Liquidity Providers under each Liquidity Facility shall be
paid as Supplemental Rent by the Lessee, including without limitation any
amounts payable to the Indenture Trustee or on account of requests by the
Indenture Trustee for indemnification under Article XI of the Indenture.
(c) Amendments, Supplements and Appraisal. Without limitation of
the foregoing, the Lessee agrees:
(i) to pay as Supplemental Rent to the Owner Trustee, the Owner
Participant, Owner Participant Guaranty, the Indenture Trustee, the
Subordination Agent, the Liquidity Providers and the Pass Through Trustee
all costs and expenses (including reasonable legal fees and expenses)
incurred by any of them in connection with (a) any Default or Event of
Default and any enforcement or collection proceedings resulting therefrom,
or (b) the enforcement of the obligations of the Lessee hereunder or under
the other Operative Agreements, including, without limitation, the entering
into or giving or withholding of any amendments or supplements or waivers
or consents (whether or not consummated), including without limitation, any
amendment, supplement, waiver or consent resulting from any work-out,
restructuring or similar proceeding relating to the performance or
nonperformance by the Lessee of its obligations under the Operative
Agreements or (c) any amendment, supplement, waiver or consent (whether or
not entered into) under this Agreement, the Lease, the Indenture, the
Certificates, the Tax Indemnity Agreement, the Purchase Agreement
Assignment or any other Operative Agreement or document or instrument
delivered pursuant to any of them, which amendment, supplement, waiver or
consent is required by any provision of any Operative Agreement (including
any adjustment pursuant to Section 3.04 of the Lease) or is requested by
the Lessee or necessitated by the action or inaction of the Lessee;
provided, however, that the Lessee shall not be responsible for fees and
expenses incurred in connection with the offer, sale or other transfer
(whether pursuant to Section 7.03(d) hereof or otherwise) by the Owner
Participant after the Certificate Closing Date of any interest in the
Aircraft, the Lessor's Estate, the Beneficial Interest or the Trust
Agreement or any similar interest (and the Owner Participant shall be
responsible for all such fees and expenses), unless such offer, sale or
transfer shall occur (A) after the Lease has been declared in default or if
the transfer is pursuant to the exercise of remedies under Article 17 of
the Lease or (B) in connection with the termination of the Lease or action
or direction of the Lessee pursuant to Section 4.02, Article 10 or Article
11 of the Lease; and
(ii) to pay the fees, costs and expenses of all appraisers involved
in an independent appraisal of the Aircraft to the extent required under
Section 4.03 of the Lease.
ARTICLE 11
SUCCESSOR OWNER TRUSTEE
Section 11.01. Appointment of Successor Owner Trustee. (a)
Resignation and Removal. The Owner Trustee or any successor Owner Trustee may
resign or may be removed by the Owner Participant, and a successor Owner
Trustee may be appointed and a Person may become Owner Trustee under the Trust
Agreement only in accordance with the provisions of Section 3.11 of the Trust
Agreement and the provisions of paragraphs (b) and (c) of this Section 11.01.
(b) Conditions to Appointment. The appointment in any manner of a
successor Owner Trustee pursuant to Section 3.11 of the Trust Agreement shall
be subject to the following conditions:
(i) Such successor Owner Trustee shall be a Citizen of the United
States;
(ii) Such successor Owner Trustee shall be a bank or a trust company
having combined capital, surplus and undivided profits of at least
$100,000,000 or a bank or trust company fully guaranteed by a direct or
indirect parent thereof having a combined capital, surplus and undivided
profits of at least $100,000,000;
(iii) Such appointment shall not violate any provisions of the
Transportation Code or any applicable rule or regulation of the applicable
regulatory agency or body of any other jurisdiction in which the Aircraft
may then be registered or create a relationship which would be in violation
of the Transportation Code or any applicable rule or regulation of the
applicable regulatory agency or body of any other jurisdiction in which the
Aircraft may then be registered;
(iv) Such successor Owner Trustee shall enter into an agreement
or agreements, in form and substance reasonably satisfactory to the
Lessee, the Owner Participant, the Pass Through Trustee and the
Indenture Trustee whereby such successor Owner Trustee confirms that it
shall be deemed a party to this Agreement, the Trust Agreement, the
Lease, the Lease Supplement, the Purchase Agreement Assignment, the
Engine Warranty Assignment, the Indenture, the Indenture Supplement and
any other Operative Agreement to which the Owner Trustee is a party and
agrees to be bound by all the terms of such documents applicable to the
Owner Trustee and makes the representations and warranties contained in
Section 7.04 hereof (except that it may be duly incorporated, validly
existing and in good standing under the laws of the United States of
America or any State thereof); and
(v) All filings of Uniform Commercial Code financing and continuation
statements, filings in accordance with the Transportation Code and
amendments thereto shall be made and all further actions taken in
connection with such appointment as may be necessary in connection with
maintaining the validity, perfection and priority of the Lien of the
Indenture and the valid and continued registration of the Aircraft in
accordance with the Transportation Code.
(c) Appointment. For so long as the Aircraft remains registered
under the Transportation Code, the Owner Participant agrees to appoint
promptly a successor Owner Trustee meeting the requirements of Section
11.01(b) hereof in the event the Owner Participant has knowledge that the
Owner Trustee at any time shall not be a Citizen of the United States.
ARTICLE 12
LIABILITIES AND INTERESTS OF THE OWNER PARTICIPANT AND HOLDERS
Section 12.01. Liabilities of the Owner Participant. The Owner
Participant shall have no obligation or duty to the Lessee or to any Holder
with respect to the transactions contemplated by this Agreement, except those
obligations or duties expressly set forth in this Agreement, the Indenture,
the Trust Agreement, the Tax Indemnity Agreement, AVSA's FAA Bill of Sale,
AVSA's Warranty Bill of Sale, the Lease or any other Operative Agreement to
which the Owner Participant is a party and the Owner Participant shall not be
liable for the performance by any party hereto of such other party's
obligations or duties hereunder. Under no circumstances shall the Owner
Participant as such be liable to the Lessee, nor shall the Owner
Participant be liable to any Holder, for any action or inaction on the part
of the Owner Trustee or the Indenture Trustee in connection with this
Agreement, the Indenture, the Lease, the Trust Agreement, the Purchase
Agreement Assignment, the Engine Warranty Assignment, any other Operative
Agreement, the ownership of the Aircraft, the administration of the
Lessor's Estate or the Trust Indenture Estate or otherwise, whether or not
such action or inaction is caused by the willful misconduct or gross
negligence of the Owner Trustee or the Indenture Trustee.
Section 12.02. Interest of Holders of Certificates. A Holder of a
Certificate shall have no further interest in, or other right with respect to,
the Trust Indenture Estate when and if the principal and interest on all
Certificates held by such Holder and all other sums payable to such Holder
under this Agreement, under the Indenture and under such Certificates shall
have been paid in full.
ARTICLE 13
OTHER DOCUMENTS
Section 13.01. Consent of Lessee to Other Documents. The Lessee
hereby consents in all respects to the execution and delivery of the
Indenture, the Intercreditor Agreement and the Liquidity Facilities and to all
of the terms of said documents, and the Lessee acknowledges receipt of an
executed counterpart of such documents; it being agreed that such consent
shall not be construed to require the Lessee's consent to any future
supplement to, or amendment, waiver or modification of the terms of the
Indenture, the Intercreditor Agreement or the Liquidity Facilities or the
Certificates, except that prior to the occurrence and continuance of an Event
of Default, no section of the Indenture, the Trust Agreement, the
Intercreditor Agreement or the Liquidity Facilities shall be amended or
modified in any manner materially adverse to the Lessee without its consent.
Section 13.02. Further Assurances. The Lessee hereby confirms to
the Owner Participant its covenants set forth in and obligations under the
Lease. The Lessee agrees that, except as otherwise provided in the
Indenture, the Owner Trustee may not enter into any amendment, modification
or supplement of, or give any waiver or consent with respect to, or approve
any matter or document as being satisfactory under the Lease without the
prior consent of the Indenture Trustee and the Owner Participant and that,
except as otherwise provided in the Indenture, upon an Indenture Event of
Default, the Indenture Trustee may act as the Lessor under the Lease to the
exclusion of the Owner Trustee. The Lessee further agrees to deliver to
the Indenture Trustee and the Owner Participant a copy of each notice,
statement, request, report or other communication given or required to be
given to the Owner Trustee under the Lease.
Section 13.03. Pass Through Trustee's and Subordination Agent's
Acknowledgment. The Pass Through Trustee and the Subordination Agent hereby
acknowledge and agree to be bound by all of the terms and conditions of the
Indenture, including without limitation, Section 8.01 thereof regarding the
rights of the Owner Participant to purchase the Certificates under
circumstances specified therein.
ARTICLE 14
NOTICES
Section 14.01. Notices. All notices, demands, declarations and
other communications required by this Agreement shall be in writing and
shall be deemed received (a) if given by telecopier, when transmitted and
the appropriate telephonic confirmation received if transmitted on a
Business Day and during normal business hours of the recipient, and
otherwise on the next Business Day following transmission, (b) if given by
certified mail, return receipt requested, postage prepaid five Business
Days after being deposited in the United States mail and (c) if given by
FedEx service (or, if a Default or Event of Default shall have occurred and
be continuing, by other comparable courier service), when received or
personally delivered, addressed:
(a) If to the Lessee, to its office at 2007 Corporate Avenue,
Memphis, Tennessee 38132, Attention: Vice President and Treasurer with a
copy to Senior Vice President and General Counsel at 1980 Nonconnah
Boulevard, Memphis, Tennessee 38132, telephone (901) 395-3388, facsimile
(901) 395-4758; or to such other address as the Lessee shall from time to
time designate in writing to the Lessor, the Indenture Trustee and the
Owner Participant;
(b) If to the Lessor or the Owner Trustee, to it c/o State Street
Bank and Trust Company, Two International Place, 4th Floor, Boston,
Massachusetts 02110, Attention: Corporate Trust Department, telephone (617)
664-5526, facsimile (617) 664-5371; or to such other address as the Lessor
shall from time to time designate in writing to the Lessee and the
Indenture Trustee, with a copy to the Owner Participant;
(c) If to the Owner Participant, to its office at 200 First Stamford
Place, Stamford, Connecticut 06902, Attention: Vice President Leasing with
a copy to Director, Portfolio Administration, telephone (914) 335-5000,
facsimile 914 335-8301, or to such other address as the Owner Participant
may from time to time designate in writing to the Lessee and the Indenture
Trustee;
(d) If to the Indenture Trustee, the Subordination Agent or the Pass
Through Trustee, to its office at 79 South Main Street, Salt Lake City,
Utah 84111, Attention: Corporate Trust Department, telephone (801)
246-5053, facsimile (801) 246-5630; or to such other address as the
Indenture Trustee or the Pass Through Trustee, as the case may be, shall
from time to time designate in writing to the Lessor, the Lessee and the
Owner Participant; and
(e) If to a Liquidity Provider, to its office at 125 West 55th
Street, New York, New York 10019, Attention: General Manager, telephone
(212) 541-0600, facsimile (212) 956-5580; or to such other address as a
Liquidity Provider shall from time to time designate in writing to the
Lessor, the Lessee and the Indenture Trustee.
ARTICLE 15
REFINANCING/REOPTIMIZATION
Section 15.01. Refinancing. (a) Subject to the terms and
conditions of this Section 15.01, the Lessee may request the Owner Participant
to participate in up to two refinancings in whole but not in part, of the
Certificates prior to the end of the Basic Term (a "Refinancing"). Such
Refinancings may be placed in either the private or public markets and shall
be denominated in United States dollars (or in any other foreign currency so
long as the Owner Participant is satisfied there is no foreign currency risk
to it), and shall be on terms that do not materially adversely affect the
Owner Participant. The Owner Participant agrees to negotiate promptly in good
faith to conclude an agreement with the Lessee as to the terms of any such
Refinancing transaction (including the terms of any debt to be issued in
connection with such refinancing and the documentation to be executed in
connection therewith). Without the prior written consent of the Owner
Participant, the prospectus and other offering materials relating to any
Refinancing in the form of a public offering shall not identify the Owner
Participant and shall not include any financial statements of the Owner
Participant or any Affiliate thereof. In connection with any such Refinancing
in the form of a public offering, the Lessee shall indemnify the Owner
Participant in a manner satisfactory to it for any liabilities under federal,
state or foreign securities laws resulting from such offering. The aggregate
principal amount of the new Certificates issued in connection with each
Refinancing shall be the same as the aggregate principal amount outstanding on
the Certificates being refinanced.
(b) Notwithstanding anything herein to the contrary, no Refinancing
will be permitted unless the Owner Participant and the Indenture Trustee shall
have received at least 15 days' prior written notice of the scheduled closing
date of such Refinancing and the Owner Participant shall have been provided
such longer period as it shall have required for a reasonable opportunity to
review the relevant documentation and the Owner Participant shall have
determined in good faith that neither it nor the Owner Trustee shall suffer
any loss or expense or bear any increased risk as a result of such Refinancing
(including, without limitation, any risk with respect to taxes or other
adverse consequences to the Owner Participant including the application of
Revenue Procedures 75-21 and 75-28 and Section 467 of the Code) for which it
has not been or will not have been indemnified by the Lessee in a manner
reasonably satisfactory to the Owner Participant, nor shall its rights against
all other parties taken as a whole be adversely affected compared to such
rights in effect under the Operative Agreements prior to such proposed
Refinancing.
Prior to the consummation of any Refinancing pursuant to this Section
15.01, the Owner Participant and the Lessee shall agree upon a schedule
setting forth each installment of Basic Rent and setting forth Stipulated Loss
Values and Termination Values payable pursuant to the Lease as a result of the
Refinancing in accordance with Section 3.04 of the Lease, and thereafter the
amounts set forth in such schedule shall become the amounts payable under the
Lease. Upon the consummation of the Refinancing, the evidence of indebtedness
issued pursuant to the Refinancing shall be considered "Certificates" for
purposes of this Agreement, the Lease and the Indenture.
(c) Notwithstanding the foregoing, the Owner Participant shall have
no obligation to proceed with any Refinancing transaction as contemplated by
this Section 15.01 unless the Lessee indemnifies the Owner Trustee and the
Owner Participant by agreement in form and substance satisfactory to each of
them, for any liability, obligation (other than the obligation to pay
principal and interest in respect of the refinanced indebtedness), cost or
expense (including, without limitation, reasonable attorneys' fees and
Make-Whole Premium or other amounts due under the Indenture), including any
adverse tax consequences or impact, related to or arising out of any such
Refinancing transaction.
(d) Without the prior written consent of the Owner Participant,
which consent may be withheld in its sole discretion, no such refinancing
shall (1) cause the aggregate principal amount of the indebtedness to be
substituted for the Certificates to exceed the aggregate principal amount
of the then outstanding Certificates, (2) cause the weighted average life
of such indebtedness to be different by more than 6 months than the
remaining weighted average life of the then outstanding Certificates, or
(3) cause the date of maturity of such indebtedness to be later than the
date of maturity of the Certificates being refinanced.
(e) Each party agrees to take or cause to be taken all requested
action, including, without limitation, the execution and delivery of any
documents and instruments, including, without limitation, amendments or
supplements to the Lease, which may be reasonably necessary or desirable to
effect such Refinancing, including, in the case of the Owner Participant,
direction to the Owner Trustee by the Owner Participant to prepay the
Certificates then outstanding; provided, however, that such Refinancing shall
be subject to the satisfaction of each of the following conditions:
(i) Payment of principal, accrued interest, Make-Whole Premium
and breakage costs, if any, and all other sums due and owing on the
Certificates payable under the Indenture;
(ii) Payment in full of all other amounts then due and owing by the
Lessee under this Agreement, the Indenture, the Lease, the Trust Agreement,
and the Certificates then outstanding shall have been made by the Lessee;
(iii) Such party shall have received such opinions of counsel
(including, without limitation, an opinion received by the Owner
Participant from independent tax counsel reasonably satisfactory to the
Lessee that such Refinancing shall not result in any adverse tax
consequences to such Owner Participant, unless the Lessee shall have agreed
to provide an indemnity in respect thereof reasonably satisfactory in form
and substance to the Owner Participant), certificates and other documents
as it may reasonably request, each in form and substance reasonably
satisfactory to such party;
(iv) All authorizations, approvals and consents which in the
reasonable judgment of the Owner Participant are necessary for such
Refinancing shall have been obtained;
(v) The Lessee shall have provided or agreed to provide to the
Owner Participant, as Supplemental Rent under the Lease, sufficient
funds to pay any breakage costs, Make-Whole Premium and any other
amounts due under the Indenture;
(vi) The satisfaction or waiver by each other party to this
Agreement of the conditions set forth in this Section 15.01 to such
party's obligations under this Section 15.01;
(vii) No Payment Default, Bankruptcy Default or Event of Default
shall have occurred and be continuing or would occur immediately after
giving effect to such Refinancing;
(viii) In the event the Lessee shall not prohibit the purchase of
the Refinancing loan certificates by, or with the assets of, an employee
benefit plan, as defined in Section 3(3) of ERISA, which is subject to
Title I of ERISA or a plan or individual retirement account, which is
subject to Section 4975(c) of the Code, (individually or collectively, an
"ERISA Plan"), the Lessee will permit the placement of the Refinancing loan
certificates with an ERISA Plan only if either (A) if such placement is in
the form of pass through certificates, the sole underwriter or the manager
or co-manager of the underwriting syndicate or the selling or placement
agent of the Refinancing loan certificates represents to the Lessee that it
has a prohibited transaction exemption from the U.S. Department of Labor
with respect to pass through certificates (such as Prohibited Transaction
Exemption 89-88 or any other comparable exemption) or (B) purchasers of the
Refinancing loan certificates provide a representation (which may be in the
form of a deemed representation) regarding their source of funds used in
acquiring the Refinancing loan certificates and, if such purchasers
represent that they are using funds of an ERISA Plan in acquiring the
Refinancing loan certificates, such purchasers further represent that (1)
either they are relying on a prohibited transaction exemption from the U.S.
Department of Labor with respect to their purchase and holding of the
Refinancing loan certificates and they provide representations regarding
the satisfaction of the relevant conditions of such an exemption or (2)
their purchase and holding of the Refinancing loan certificates will not
constitute a non-exempt prohibited transaction under Section 406 of
ERISA or Section 4975 of the Code. The reliance on any such exemption
will not be conditional on the Owner Participant's representation
concerning its party in interest or other status with respect to ERISA
Plans. If neither exemption referred to in clause (A) or (B) of this
paragraph (viii) is valid or applicable in any respect to the purchase
and holding of the Refinancing loan certificates, or if the
representation in clause (B) of this paragraph (viii) that such purchase
and holding will not constitute a non-exempt prohibited transaction is
not correct, whichever is applicable, then the Lessee shall indemnify
the Owner Participant pursuant to, and to the extent provided for, under
Sections 8 and 9 hereof for Taxes and Expenses resulting from any
"prohibited transaction", within the meaning of Section 406 of ERISA or
Section 4975(c)(1) of the Code, occurring with respect to the placement
of the Refinancing loan certificates with, or the holding of the
Refinancing loan certificates by, any ERISA Plan with respect to which
the Owner Participant is a party in interest, within the meaning of
Section 3(14) of ERISA, or a disqualified person, within the meaning of
Section 4975 of the Code, provided, however, that if the Lessee shall
fail to obtain either of the representations set forth in clause (A) or
(B) of this paragraph (viii), such indemnity shall not be subject to the
exceptions set forth under Sections 8.01(b)(xii)(A) and (B) and
9.01(b)(ix)(A) and (B) hereof; and
(ix) The Lessee shall pay all costs and expenses (including legal
fees) incurred in connection with any proposed or actually consummated
Refinancing.
Section 15.02. Reoptimization. (a) If a Change in Tax Rate occurs
prior to the end of the Basic Term, then, subject to the terms and conditions
of this Section 15.02 and Section 3.04 of the Lease, the Owner Participant
may, upon 30 days' prior notice to the Lessee, the Indenture Trustee, the
Owner Trustee and the Holders, elect to modify the schedule of payments of
principal of the certificates issued ("Refinancing Certificates") in
connection with any Refinancing using private debt (not including debt issued
pursuant to an exemption from registration under the Securities Act relying on
Rule 144A promulgated thereunder but otherwise marketed in a manner
substantially similar to securities registered under the Securities Act, and
not including debt issued in connection with any offering of securities
registered under the Securities Act) due on each remaining Rent Payment Date
on or commencing on the Rent Payment Date next succeeding the date mutually
agreed to by the Owner Participant, the Lessee and the Indenture Trustee on
which the Owner Participant shall make such modification (the "Reoptimization
Date"). Promptly after making such modification, the Owner Participant shall
furnish each party hereto written notice of the amounts so recalculated.
(b) Adjustments to Refinancing Certificates. On the Reoptimization
Date, subject to the satisfaction on or before the Reoptimization Date of the
conditions set forth in Section 15.02(c), the Owner Trustee will issue and
deliver and the Indenture Trustee will authenticate, and each holder of a
Refinancing Certificate will accept delivery of, a new Refinancing Certificate
or Refinancing Certificates (in replacement of each Refinancing Certificate
then held by such holder, which Refinancing Certificates shall be surrendered
to the Indenture Trustee for cancellation) containing such changed principal
installments (expressed as a percentage of the original principal amount of
such Refinancing Certificate) as shall have been recalculated by the Owner
Participant, but in the same principal amount as, and containing terms
identical to, except as otherwise contemplated by Section 15.02(d) hereof, the
Refinancing Certificates originally issued in connection with the Operative
Agreements.
(c) Conditions to the Obligations of the Holders of the Refinancing
Certificates on the Reoptimization Date. The obligation of each holder of a
Refinancing Certificate to accept delivery of a new Refinancing Certificate on
the Reoptimization Date, and to surrender on such Reoptimization Date any
Refinancing Certificate then held by it, is subject to the following
conditions precedent having been satisfied on or before the Reoptimization
Date:
(i) the requirements of Section 15.02(d) hereof shall have been
satisfied;
(ii) the following documents, in form and substance satisfactory to
such Holder, shall have been duly authorized, executed and delivered by the
party or parties thereto and shall be in full force and effect: (A) if the
payments of Basic Rent, Stipulated Loss Values and Termination Values with
respect to the Term have been changed, an amendment to the Lease, dated the
Reoptimization Date, (B) an amendment to the Indenture setting forth any
changed repayment schedule to the Refinancing Certificates, dated the
Reoptimization Date and duly filed (or in the process of being so duly
filed) for recordation with the Aeronautics Authority and (C) replacement
Refinancing Certificates; and
(iii) in connection with any Reoptimization the Owner Participant
shall pay or agree to pay all reasonable costs and expenses incurred by the
Lessee, the Owner Trustee, the Indenture Trustee and each Holder of a
Refinancing Certificate (including, without limitation, reasonable legal
fees and expenses) in connection with any such reoptimization.
(d) Payment Schedules. Except as otherwise provided in this
Section 15.02 as long as the Refinancing Certificates remain outstanding,
the payment schedules for the Refinancing Certificates shall not be
modified.
ARTICLE 16
[RESERVED]
ARTICLE 17
MISCELLANEOUS
Section 17.01. Owner for Federal Tax Purposes. It is hereby agreed
between the Owner Participant and the Lessee (but the Lessee makes no
representation to such effect) that it is the intent of the parties for
Federal, state, local and foreign income tax purposes that the Owner
Participant will be treated as the owner of the Aircraft and the Lessee will
be treated as the lessee of the Aircraft.
Section 17.02. Collateral Account. (a) The Indenture Trustee shall
notify the Owner Trustee and the Lessee of any losses incurred on the
Specified Investments in the Collateral Account promptly upon the realization
thereof, as well as any fees, commissions and other costs, Taxes (other than
income taxes) and expenses, if any, incurred by the Indenture Trustee in
connection with its administration of the Collateral Account (collectively,
"Losses"). Promptly upon receipt of such notification but, in any event, no
later than the earlier of the Delivery Date (or, if later, the last day of any
investment period referred to in Section 2.14(b) of the Indenture during which
the Delivery Date occurs) and the 15th day after the Cut-Off Date, the Lessee
shall pay to the Indenture Trustee, on behalf of the Owner Trustee, for
deposit into the Collateral Account, an amount equal to such Losses (net of
any investment earnings).
(b) The Lessee shall pay to the Indenture Trustee, on behalf of the
Owner Trustee (A) on each Payment Date prior to the Delivery Date an amount
equal to the aggregate amount of interest accrued on the Certificates from
(and including) the Certificate Closing Date or previous Payment Date, as the
case may be, to, but excluding, such Payment Date and (B) on the first Payment
Date subsequent to the Delivery Date, interest accrued on the Certificates
from and including the last Payment Date (or, if none, the Certificate Closing
Date), to, but excluding, the Delivery Date. In addition, the Lessee will pay
to the Indenture Trustee on behalf of the Owner Trustee all amounts owed by
the Owner Trustee pursuant to clause (b) of the last paragraph of Section 2.04
of the Indenture.
(c) If the Aircraft has not been purchased by the Owner Trustee
on the Delivery Date, the Lessee agrees to pay to the Indenture Trustee, on
behalf of the Owner Trustee, on the 15th day following the Cut-Off Date the
excess, if any, of the amounts payable under Section 6.02(b)(1) of the
Indenture over the amounts released from the Collateral Account under
Section 2.16 of the Indenture.
(d) All amounts payable by the Lessee pursuant to this Section 17.02
shall be paid to the Indenture Trustee at its principal office at 79 South
Main Street, Salt Lake City, Utah, 84111, Attention: Corporate Trust
Department, or as the Indenture Trustee may otherwise direct within the United
States, by wire transfer of immediately available funds in U.S. Dollars no
later than 10:30 a.m., New York City time, on the due date of such payment.
Section 17.03. Counterparts. This Agreement may be executed by the
parties in separate counterparts, each of which when so executed and delivered
shall be an original, but all such counterparts shall together constitute but
one and the same instrument.
Section 17.04. No Oral Modifications. Neither this Agreement nor
any of its terms may be terminated, amended, supplemented, waived or modified
orally, but only by an instrument in writing signed by the party against which
the enforcement of the termination, amendment, supplement, waiver or
modification is sought. No such written termination, amendment, supplement,
waiver or modification shall be effective unless a signed copy shall have been
delivered to and executed by the Owner Trustee and the Indenture Trustee. A
copy of each such termination, amendment, supplement, waiver or modification
shall also be delivered to each other party to this Agreement.
The consent of each of the Pass Through Trustee and the Subordination
Agent, in its capacity as a party to this Agreement and not as a Holder, shall
not be required to modify, amend or supplement this Agreement or to give any
consent, waiver, authorization or approval with respect to this Agreement
under the circumstances in which the consent of the Indenture Trustee would
not be required for such modification, amendment, supplement, consent, waiver
or approval in accordance with Section 8.01(b) of the Indenture, provided that
the Pass Through Trustee shall be entitled to receive an Opinion of Counsel
(as defined in the Pass Through Agreement) necessary, in its sole discretion,
to establish that the Indenture Trustee's consent would not be required under
such circumstances.
Section 17.05. Captions. The table of contents preceding this
Agreement and the headings of the various Articles and Sections of this
Agreement are for convenience of reference only and shall not modify, define,
expand or limit any of the terms or provisions of this Agreement.
Section 17.06. Successors and Assigns. The terms of this Agreement
shall be binding upon, and shall inure to the benefit of, the Lessee and its
successors and permitted assigns, the Subordination Agent and its successors
and permitted assigns, including without limitation each Holder of a
Certificate, the Owner Participant and its successors and permitted assigns,
the Owner Trustee and its successors as Owner Trustee (and any additional
owner trustee appointed) under the Trust Agreement, the Indenture Trustee and
its successors as Indenture Trustee (and any additional indenture trustee
appointed) under the Indenture and the Pass Through Trustee and its successors
as Pass Through Trustee (and any additional pass through trustee appointed).
Section 17.07. Concerning the Owner Trustee, Indenture Trustee and
the Pass Through Trustee. Each of SSB and FSB is entering into this Agreement
solely in their respective capacities (except to the extent otherwise
expressly indicated), in the case of SSB, not in its individual capacity but
solely as Owner Trustee under the Trust Agreement, in the case of FSB, not in
its individual capacity but solely as Indenture Trustee under the Indenture
and as Pass Through Trustee under the Pass Through Agreement, and except as
otherwise expressly provided in this Agreement or in the Lease, the Indenture,
the Pass Through Agreement or the Trust Agreement, neither SSB, nor FSB,
shall be personally liable for or on account of its statements,
representations, warranties, covenants or obligations under this Agreement;
provided, however, that each of SSB and FSB accepts the benefits running to it
under this Agreement, and each agrees that (except as otherwise expressly
provided in this Agreement or any other Operative Agreement to which it is a
party) it shall be liable in its individual capacity for (a) its own gross
negligence or willful misconduct (whether in its capacity as trustee or in its
individual capacity), (b) any breach of representations and warranties or any
breach of covenants made in its individual capacity pursuant to or in
connection with this Agreement or the other Operative Agreements to which
it is a party, (c) any breach, in the case of the Owner Trustee, of its
covenants contained in Sections 3.05 and 3.08 of the Indenture, (d) the
failure to use ordinary care in receiving, handling and disbursing funds,
(e) in the case of the Owner Trustee, Lessor's Liens attributable to it in
its individual capacity, (f) in the case of the Indenture Trustee,
Indenture Trustee's Liens and (g) taxes, fees or other charges on, or based
on, or measured by, any fees, commissions or compensation received by it in
connection with the transactions contemplated by the Operative Agreements.
Section 17.08. Severability. Any provision of this Agreement which
is prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions, and any such
prohibition or unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction.
Section 17.09. Public Release of Information. Subject to applicable
legal requirements (including, without limitation, securities laws
requirements, other regulatory requirements and other legally compelled
disclosures), so long as there shall not have occurred an Event of Default or
Indenture Event of Default, each party to this Agreement shall in each
instance obtain the prior written approval of each other party to this
Agreement concerning the exact text and timing of news releases, articles and
other information releases to the public media concerning any Operative
Agreements.
Section 17.10. Certain Limitations on Reorganization. The Indenture
Trustee and the Pass Through Trustee agree that, if (i) the Owner Trustee
becomes or all or any part of the Lessor's Estate or the trust created by the
Trust Agreement becomes the property of, a debtor subject to the
reorganization provisions of the Bankruptcy Code or any other applicable
bankruptcy or insolvency statutes, (ii) pursuant to any such reorganization
provisions, the Owner Participant is held to have recourse liability to the
debtor, the Owner Trustee or the trustee of the debtor directly or indirectly
on account of any amount payable as Make-Whole Premium, principal or interest
on the Certificates, or any other amount payable on any Certificate that is
provided in the Operative Agreements to be nonrecourse to the Owner
Participant and (iii) the Indenture Trustee actually receives any Recourse
Amount which reflects any payment by the Owner Participant on account of (ii)
above, then the Indenture Trustee, as the case may be, shall promptly refund
to the Owner Participant such Recourse Amount. For purposes of this Section
17.10, "Recourse Amount" means the amount by which the portion of such payment
by the Owner Participant on account of clause (ii) above received by the
Indenture Trustee exceeds the amount which would have been received by the
Indenture Trustee if the Owner Participant had not become subject to the
recourse liability referred to in (ii) above. Nothing contained in this
Section shall prevent the Indenture Trustee from enforcing any individual
obligation (and retaining the proceeds thereof) of the Owner Participant under
this Agreement or any other Operative Agreement to the extent herein or
therein provided, for which the Owner Participant has expressly agreed by the
terms of this Agreement to accept individual responsibility.
Section 17.11. GOVERNING LAW. THIS AGREEMENT SHALL IN ALL RESPECTS
BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK, INCLUDING ALL MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE, WITHOUT
GIVING EFFECT TO PRINCIPLES OF CONFLICTS OF LAWS AND IS BEING DELIVERED IN NEW
YORK.
Section 17.12. Section 1110 Compliance. The parties hereto agree
that the transactions contemplated by the Operative Agreements are expressly
intended to be, shall be and should be construed so as to be entitled to the
benefits and protection of Section 1110 of the Bankruptcy Code.
Section 17.13. Reliance of Liquidity Providers. Each of the parties
hereto agrees and acknowledges that each Liquidity Provider shall be a third
party beneficiary of each of the representations and warranties made herein by
such party, and that each Liquidity Provider may rely on such representations
and warranties to the same extent as if such representations and warranties
were made to such Liquidity Provider directly. The terms of this Agreement
shall inure to the benefit of each Liquidity Provider, their respective
successors and permitted assigns.
ARTICLE 18
CONFIDENTIALITY
Section 18.01. Confidentiality. Each party hereto agrees (on behalf
of itself and each of its Affiliates, agents, directors, officers, employees
and representatives) to use reasonable precautions to keep confidential, in
accordance with its customary procedures for handling confidential information
of this nature, any non-public information supplied to it pursuant to this
Agreement which is identified by the Person supplying the same as being
confidential at the time the same is delivered to such party, provided that
nothing herein shall limit the disclosure of any such information (i) to the
extent required by statute, rule, regulation or judicial process, (ii) to
counsel for any of the parties hereto, (iii) to bank examiners or similar
regulatory authorities, auditors or accountants, (iv) in connection with any
litigation to which any one or more of the parties hereto is a party relating
to the transactions contemplated hereby or by any of the Operative Agreements,
(v) to an Affiliate of the parties hereto, (vi) to any assignee or participant
(or prospective assignee or participant) or other transferee so long as such
assignee or participant (or prospective assignee or participant) or other
transferee first executes and delivers to the respective party making such
assignment or participation an agreement in writing to be bound by the
provisions of this Section 18.01 or (vii) in the case of the Owner Participant
or the Owner Trustee (in its individual or trust capacity) to the Owner
Trustee (in its individual or trust capacity) or to the Owner Participant, as
the case may be.
IN WITNESS WHEREOF, the parties have caused this Participation
Agreement to be executed by their respective, duly authorized officers and
this Participation Agreement shall be effective this 22nd day of May, 1997.
LESSEE:
FEDERAL EXPRESS CORPORATION
By:__________________________________________
Name: Robert D. Henning
Title: Assistant Treasurer and Managing
Director - Structured Finance
OWNER PARTICIPANT:
PMCC LEASING CORPORATION
By:__________________________________________
Name: Joan D. Woodroof
Title: Manager, Structured Finance
OWNER TRUSTEE:
STATE STREET BANK AND TRUST COMPANY OF
CONNECTICUT, NATIONAL ASSOCIATION,
not in its individual capacity,
except as otherwise expressly provided herein,
but solely as Owner Trustee
By:__________________________________________
Name: Paul D. Allen
Title: Vice President
INDENTURE TRUSTEE:
FIRST SECURITY BANK,
NATIONAL ASSOCIATION,
not in its individual capacity except as
otherwise expressly provided herein,
but solely as Indenture Trustee
By:__________________________________________
Name: Greg A. Hawley
Title: Vice President
PASS THROUGH TRUSTEE:
FIRST SECURITY BANK,
NATIONAL ASSOCIATION,
not in its individual capacity except as
otherwise expressly provided herein,
but solely as Pass Through Trustee
By:__________________________________________
Name: Greg A. Hawley
Title: Vice President
SUBORDINATION AGENT:
FIRST SECURITY BANK,
NATIONAL ASSOCIATION,
not in its individual capacity except as
otherwise expressly provided herein,
but solely as Subordination Agent
By:__________________________________________
Name: Greg A. Hawley
Title: Vice President
SCHEDULE I
CERTIFICATE INFORMATION
1. Federal Express Corporation 1997-1 Pass Through Trust Class A
Federal Express Corporation Trust No. N671FE
Interest Rate: 7.50%
Maturity: January 15, 2017
Principal Amount: $33,352,000
2. Federal Express Corporation 1997-1 Pass Through Trust Class B
Federal Express Corporation Trust No. N671FE
Interest Rate: 7.52%
Maturity: January 15, 2018
Principal Amount: $12,507,000
3. Federal Express Corporation 1997-1 Pass Through Trust Class C
Federal Express Corporation Trust No. N671FE
Interest Rate: 7.65%
Maturity: January 15, 2014
Principal Amount: $16,458,000
SCHEDULE II
DEFINITIONS
(FEDERAL EXPRESS CORPORATION TRUST NO. N671FE)
GENERAL PROVISIONS
The following terms shall have the following meanings for all
purposes of the Operative Agreements (other than the Pass Through Agreement,
the Series Supplements, the Intercreditor Agreement and the Liquidity
Facilities) referred to below, unless otherwise defined in an Operative
Agreement or the context thereof shall otherwise require. In the case of any
conflict between the provisions of this Schedule and the provisions of any
Operative Agreement, the provisions of such Operative Agreement shall control
the construction of such Operative Agreement.
Unless the context otherwise requires, (i) references to agreements
shall be deemed to mean and include such agreements as amended and
supplemented from time to time, and (ii) references to parties to agreements
shall be deemed to include the successors and permitted assigns of such
parties.
DEFINED TERMS:
Additional Insured. As defined in Article 13 of the Lease.
Aeronautics Authority. As appropriate, the Federal Aviation
Administration and/or the Administrator of the Federal Aviation
Administration, any successor to the former United States Civil Aeronautics
Board, or any Person, governmental department, bureau, commission or agency
located in the United States succeeding to the functions of any of the
foregoing.
Affidavits. The affidavits of citizenship of the Owner Trustee and
the Owner Participant.
Affiliate. With respect to any Person, any other Person directly or
indirectly controlling, controlled by or under common control with such
Person. For the purposes of this definition, "control" (including "controlled
by" and "under common control with") shall mean the power, directly or
indirectly, to direct or cause the direction of the management and policies of
such Person whether through the ownership of voting securities or by contract
or otherwise. In no event shall the Owner Trustee or the Lessor be deemed an
Affiliate of the Owner Participant.
After-Tax Basis. A basis such that any payment to be received by a
Person shall be supplemented by a further payment to such Person so that the
sum of the two payments, after deduction of all Taxes resulting from the
receipt or accrual of such payments, shall be equal to the payment to be
received. In the case of amounts payable to the Lessor, the Owner Participant,
or any corporate Affiliate of the Owner Participant, it shall be presumed that
such Person is at all times subject to Federal income tax at the maximum
marginal rate generally applicable to corporations from time to time and
actual state, local and foreign income taxes.
Air Carrier. Any U.S. Air Carrier and any "foreign air carrier" (as
defined in the Transportation Code) as to which there is in force a permit
granted under Section 41302 of the Transportation Code.
Airbus Guaranty. The Guaranty to be dated the Delivery Date executed
by the Manufacturer and guaranteeing AVSA's Warranty Bill of Sale.
Aircraft. The Airframe to be sold by AVSA to the Owner Trustee as
provided in the Participation Agreement and to be leased under the Lease (or
any permitted substitute airframe thereunder) together with two Engines
(whether either is an initial Engine or a Replacement Engine) whether or not
any of such initial or Replacement Engines may from time to time be installed
on such Airframe or may be installed on any other airframe or on any other
aircraft, including any aircraft substituted pursuant to Section 11.03 of the
Lease. Prior to delivery of the initial Lease Supplement, references in the
Operative Agreements (including Section 3.05 of the Participation Agreement)
to Aircraft shall mean the Airbus A300F4-605R airframe bearing FAA
Registration Number N671FE and Manufacturer's serial number 778, together with
two General Electric CF6-80C2-A5F engines.
Airframe. The Airbus A300F4-605R aircraft (excluding the Engines or
engines from time to time installed thereon) to be leased by the Lessor to the
Lessee pursuant to the Lease and the initial Lease Supplement and having the
United States FAA Registration Number initially and manufacturer's serial
number specified in the initial Lease Supplement, including (i) all Parts in
respect thereof and (ii) any Replacement Airframe which may be substituted
pursuant to Section 11.03 of the Lease.
Ancillary Agreement. Any written agreement of the Lessee to which the
Lessor is a party or to which the Lessor has consented in writing entered into
on or prior to the Delivery Date or any date thereafter in connection with the
transactions contemplated by the Operative Agreements, as such agreement may
be amended and supplemented from time to time with the consent of the Lessor
and delivered to the Owner Trustee, the Indenture Trustee, the Pass Through
Trustee, the Subordination Agent, each Liquidity Provider and the Owner
Participant.
Ancillary Agreement I. The Ancillary Agreement I (Federal Express
Corporation Trust No. N671FE), dated the Certificate Closing Date, among the
Lessee, the Owner Trustee, not in its individual capacity, but solely as Owner
Trustee, the Owner Participant and the Indenture Trustee not in its individual
capacity, but solely as Indenture Trustee, as originally executed or as
amended, modified or supplemented with the consent of all the parties thereto.
Ancillary Agreement II. The Ancillary Agreement II (Federal Express
Corporation Trust No. N671FE), dated the Certificate Closing Date, among the
Lessee, the Owner Trustee, not in its individual capacity, but solely as Owner
Trustee, the Owner Participant and the Indenture Trustee not in its individual
capacity, but solely as Indenture Trustee, as originally executed or as
amended, modified or supplemented with the consent of all the parties thereto.
Application. The application for registration of the Aircraft with
the FAA in the name of the Owner Trustee.
Appraisal. The report prepared by BK Associates, Inc. and to be
delivered to the Owner Participant (with an abbreviated report to the Lessee)
on the Delivery Date pursuant to Section 4.02(h) of the Participation
Agreement.
Assignment and Assumption Agreement. Any agreement delivered in
compliance with Section 7.03(d) of the Participation Agreement.
Average Life Date. For any Certificate, the date which follows the
prepayment date by a period equal to the Remaining Weighted Average Life of
such Certificate.
AVSA. AVSA S.A.R.L., a societe a responsabilite limitee, organized
and existing under the laws of France.
AVSA Consent and Agreement. The Consent and Agreement dated as of
May 1, 1997, executed by AVSA.
AVSA's FAA Bill of Sale. The bill of sale for the Airframe on AC
Form 8050-2, or such other form as may be approved by the Aeronautics
Authority, executed by AVSA in favor of the Owner Trustee and to be dated the
Delivery Date.
AVSA's Warranty Bill of Sale. The full warranty bill of sale
covering the Aircraft (and specifically referring to each Engine) executed by
AVSA as owner of the Aircraft in favor of the Owner Trustee and to be dated
the Delivery Date.
Bankruptcy Code. The Federal Bankruptcy Code of 1978, as amended, and
any successor thereto.
Bankruptcy Default. An event specified in Section 16.01(e), (f) or
(g) of the Lease which either does or, with the giving of notice or lapse of
time or both, would constitute an Event of Default.
Basic Rent. The aggregate periodic rent payable for the Aircraft
throughout the Basic Term pursuant to Section 3.02 of the Lease, adjusted
pursuant to Article 3 of the Lease.
Basic Term. The period commencing at the beginning of the day on the
Delivery Date and ending at the end of the day on September 20, 2020, or such
earlier date on which the Lease shall be terminated as provided therein.
Beneficial Interest. The interest of the Owner Participant under the
Trust Agreement.
Business Day. Any day on which commercial banks are not authorized or
required to close in New York, New York, Memphis, Tennessee and the city in the
United States in which the office or agency is maintained by the Pass Through
Trustee for the payment of the Pass Through Certificates, and after the Lien
of the Indenture is discharged, Boston, Massachusetts.
Certificate Closing Date. The date of the closing with respect to the
purchase of Certificates by the Pass Through Trustee contemplated by Section
2.01(b) of the Participation Agreement.
Certificates. The Equipment Trust Certificates (Federal Express
Corporation Trust No. N671FE), issued by the Owner Trustee pursuant to the
Indenture and any certificate issued in exchange therefor or replacement
thereof pursuant to the Indenture.
Change in Tax Law. Any change to the Code or the Treasury regulations
promulgated thereunder or the publication of any revenue ruling, revenue
procedure or any informational release by the Internal Revenue Service or the
Department of Treasury either of which would change or would allow a change in
the tax assumptions or structure upon which the lease economics were based,
provided that the Owner Participant or the Lessee has notified the other party
of such change in writing prior to the Delivery Date.
Change in Tax Rate. Any amendment, modification, deletion, addition,
or change to the Code which is enacted into law after the Delivery Date which
changes the highest marginal statutory rate of Federal income tax applicable
to the Owner Participant (other than a change which is in the nature of a
minimum tax).
Citizen of the United States. A citizen of the United States as
defined in Section 40102(a)(15) of the Transportation Code, or any analogous
part of any successor or substituted legislation or regulation at the time in
effect.
Class A Liquidity Provider. Has the meaning specified in Section
1.01 of the Intercreditor Agreement.
Class B Liquidity Provider. Has the meaning specified in Section
1.01 of the Intercreditor Agreement.
Closings. The closing with respect to the acquisition of the Pass
Through Certificates by the Underwriters and the closing with respect to the
acquisition of Certificates by the Pass Through Trustee.
Code. Except as otherwise provided, the Internal Revenue Code of
1986, as amended from time to time.
Collateral Account. The deposit account established and maintained
pursuant to Section 2.13 of the Indenture.
Collateral Account Control Agreement. The Collateral Account Control
Agreement dated as of May 1, 1997 among State Street Bank and Trust Company,
the Indenture Trustee and the Owner Trustee.
Commitment. The amount of the Owner Participant's participation in
the Purchase Price required to be made available or paid as provided in
Section 3.02 of the Participation Agreement.
Consent and Agreement. The Consent and Agreement dated as of May 1,
1997 executed by the Manufacturer.
Consent and Guaranty. The Consent and Guaranty of the Manufacturer
attached to the Purchase Agreement.
Corporate Trust Administration. The Corporate Trust Administration
office of the Owner Trustee located at 750 Main Street, Hartford, Connecticut
06103, Attention: Corporation Trust Administration, or such other office at
which the Owner Trustee's corporate trust business shall be administered which
the Owner Trustee shall have specified by notice in writing to the Lessee, the
Owner Participant and the Indenture Trustee.
Corporate Trust Department. The Corporate Trust Department office of
the Indenture Trustee located at 79 South Main Street, Salt Lake City, Utah
84111, Attention: Corporate Trust Department, or such other office at which
the Indenture Trustee's corporate trust business shall be administered which
the Indenture Trustee shall have specified by notice in writing to the Lessee,
the Owner Participant and the Owner Trustee.
CRAF Program. Has the meaning specified in Section 7.01(f) of the
Lease.
Cut-Off Date. September 18, 1997.
Debt Portion. The amount specified as such on Schedule IV to the
Participation Agreement.
Debt Rate. The weighted average (based on Outstanding principal
amount) rate of interest on the Certificates issued pursuant to the Indenture.
Default. Any event or condition which, with the lapse of time or the
giving of notice, or both, would constitute an Event of Default.
Delivery Date. The date on which the Aircraft is delivered and sold
by AVSA to the Lessor and leased by the Lessor to the Lessee under the Lease,
which date shall also be the date of the initial Lease Supplement.
Delivery Notice. Notice of the Aircraft's Delivery Date, given by
the Lessee as provided in Section 3.01 of the Participation Agreement and
including any notice with respect to a postponed Delivery Date given by the
Lessee pursuant to Section 3.05(c) of the Participation Agreement.
Eligible Deposit Account. Either (a) a segregated account with an
Eligible Institution or (b) a segregated trust account with the corporate
trust department of a depository institution with corporate trust powers
organized under the laws of the United States or any state thereof, or the
District of Columbia, and whose deposits are insured by the Federal Deposit
Insurance Corporation, provided that such institution also has a combined
capital and surplus of at least $100,000,000 and a rating of A or better from
the Thomson Bank Watch.
Eligible Institution. A depository institution organized under the
laws of the United States or any one of the states thereof, or the District of
Columbia, or any domestic branch of a foreign bank, which in any such case at
all times (a) has either (x) a long-term unsecured debt rating of at least Aa2
by Moody's or (y) a short-term certificate of deposit rating of P-1 by
Moody's, (b) has either (x) a long-term unsecured debt rating of a least AA by
S&P or (y) a short-term certificate of deposit rating of A-1+ by S&P and (c)
is a member of the Federal Deposit Insurance Corporation.
Engine. Each of the two General Electric CF6-80C2-A5F engines listed
by its manufacturer's serial number in the initial Lease Supplement and leased
pursuant to the Lease, whether or not from time to time installed on the
Airframe or installed on any other airframe or on any other aircraft, and any
Replacement Engine which may from time to time be substituted for an Engine
pursuant to Section 7.02(a)(vii), 10.02(c), 10.03, 11.03, 11.04 or 12.02 of
the Lease, together with all Parts related thereto. Except as otherwise
provided, at such time as a Replacement Engine shall be so substituted and the
Engine for which the substitution is made shall be released from the Lien of
the Indenture, such replaced Engine shall cease to be an "Engine" under the
Lease. The term "Engines" means, as of any date of determination, both Engines
then leased to the Lessee pursuant to the Lease.
Engine Consent. The Engine Consent dated as of May 1, 1997, executed
by the Engine Manufacturer.
Engine Manufacturer. General Electric Company, a New York
corporation.
Engine Warranty Assignment. The Engine Warranty Assignment (Federal
Express Corporation Trust No. N671FE), dated as of May 1, 1997 between the
Lessor and the Lessee.
ERISA. The Employee Retirement Income Security Act of 1974, as
amended.
ERISA Plan. As defined in Section 8.01(b)(xii) of the Participation
Agreement.
Estimated Expense Amount. Has the meaning specified in Section
10.01(a) of the Participation Agreement.
Event of Default. Each of the events specified in Article 16 of the
Lease.
Event of Loss. Any of the following events with respect to the
Aircraft, the Airframe or any Engine: (i) loss of such property or its use (A)
for a period in excess of 60 days due to theft or disappearance or such longer
period, not to exceed 180 days from the end of such initial 60-day period, if
and so long as the location of such property is known to the Lessee and the
Lessee is diligently pursuing recovery of such property, or to the end of the
Term, if less (unless such theft or disappearance constitutes an Event of Loss
pursuant to (i)(B) or (ii) hereof) or (B) for a period in excess of 60 days
due to the destruction, damage beyond economic repair or rendition of such
property permanently unfit for normal use by Lessee for any reason whatsoever;
(ii) any damage to such property which results in an insurance settlement with
respect to such property on the basis of a total loss, or constructive or
compromised total loss; (iii) (1) condemnation, confiscation or seizure of, or
requisition of title to such property by the Government, any foreign
government or purported government or any agency or instrumentality thereof,
or (2) condemnation, confiscation, or seizure of, or requisition or taking of,
use of such property (A) by a foreign government or instrumentality or agency
of any such foreign government, for a period in excess of 180 days (or such
shorter period ending on the earlier of the expiration of the Term or on the
date on which an insurance settlement with respect to such property on the
basis of a total loss or constructive or compromised total loss shall occur)
or (B) by the Government for a period extending beyond the Term; and (iv) as a
result of any law, rule, regulation, order or other action by the Aeronautics
Authority or other governmental body having jurisdiction, the use of the
Aircraft or Airframe in the normal course of air transportation of cargo shall
have been prohibited by virtue of a condition affecting all Airbus A300-600
series aircraft equipped with engines of the same make and model as the
Engines for a period of twelve (12) consecutive months, unless the Lessee,
prior to the expiration of such twelve (12) month period, shall be diligently
carrying forward all steps which are necessary or desirable to permit the
normal use of the Aircraft or Airframe or, in any event, if such use of the
Aircraft or the Airframe shall have been prohibited for a period of
twenty-four (24) consecutive months or until the end of the Term, if earlier.
The date of such Event of Loss shall be (s) the 61st day or the 241st day, as
the case may be, following loss of such property or its use due to theft or
disappearance (or the end of the Term or the Lessee's abandonment of diligent
efforts to recover such property, if earlier); (t) the 61st day following the
date of any destruction, damage beyond economic repair or rendition of such
property permanently unfit for normal use; (u) the date of any insurance
settlement on the basis of a total loss or constructive or compromised total
loss; (v) the date of any condemnation, confiscation, seizure or requisition
of title of such property; (w) the 181st day following condemnation,
confiscation, seizure or requisition for use of such property by a foreign
government referred to in clause (iii)(2)(A) above (or the end of the Term or
the date of any insurance settlement described therein, if earlier than such
181st day); (x) the last day of the Term in the case of requisition for use of
such property by the Government; (y) the last day of the 12 month or 24 month
period, referred to in clause (iv) above (or if earlier, the end of the Term
or abandonment of the Lessee's efforts to restore the normal use of the
Aircraft). An Event of Loss with respect to the Aircraft shall be deemed to
have occurred if any Event of Loss occurs with respect to the Airframe.
Excepted Payments. Collectively, (i) indemnity, expense,
reimbursement or other payments paid or payable by the Lessee in respect of
the Owner Participant, the Owner Trustee in its individual capacity or any of
their respective successors, permitted assigns, directors, officers,
employees, servants and agents or Affiliates, pursuant to the Participation
Agreement or any other Operative Agreement or any indemnity hereafter granted
to the Owner Participant or the Owner Trustee in its individual capacity
pursuant to the Lease or the Participation Agreement, (ii) proceeds of public
liability insurance (or government indemnities in lieu thereof) in respect of
the Aircraft payable as a result of insurance claims paid for the benefit of,
or losses suffered by, the Owner Trustee or the Indenture Trustee in their
respective individual capacities or by the Owner Participant, or their
respective successors, permitted assigns or Affiliates, (iii) proceeds of
insurance maintained with respect to the Aircraft by the Owner Participant
(whether directly or through the Owner Trustee) maintained in accordance with
Section 13.05 of the Lease but not required under Article 13 of the Lease,
(iv) payments of Supplemental Rent by the Lessee in respect of any amounts
payable under the Tax Indemnity Agreement, (v) any purchase price paid to the
Owner Participant for its interest in the Trust Estate pursuant to Section
7.03(d) of the Participation Agreement, (vi) subject to Section 3.05 of the
Lease, payments constituting increases in Basic Rent attributable to payments
arising pursuant to Section 5 of the Tax Indemnity Agreement, (vii) any
payments in respect of interest to the extent attributable to payments
referred to in clauses (i) through (vi) above and (viii) any right to demand,
collect or otherwise receive and enforce the payment of any amount described
in clauses (i) through (v) and (vii) above (except with respect to interest
attributable to payments referred to in clause (vi) above).
Expense; Expenses. Have the meaning specified in Section 9.01(a) of
the Participation Agreement.
Fair Market Renewal Term. A term with respect to which the Lessee has
exercised its option to renew the Lease pursuant to the second paragraph of
Section 4.01(a) thereof and with respect to which the conditions set forth in
such Section 4.01(a) are met.
Fair Market Rental. An amount determined on the basis of, and equal
in amount to, the rental which would be obtained in an arm's-length
transaction between an informed and willing lessee and an informed and willing
lessor unaffiliated with such lessee, neither being under any compulsion to
lease. In such determination, it shall be assumed that the Aircraft is in the
condition required under the Lease in the case of return of the Aircraft
pursuant to Article 12 of the Lease and Fair Market Rental shall be determined
in accordance with the provisions of Section 4.03 of the Lease.
Fair Market Value. An amount determined on the basis of, and equal in
amount to, the value which would be obtained in an arm's-length transaction
between an informed and willing purchaser under no compulsion to buy and an
informed and willing seller unaffiliated with such purchaser and under no
compulsion to sell, assuming the Aircraft (or other property) is unencumbered
by the Lease. In such determination, except for purposes of Section 17.01 of
the Lease (when it shall be determined based upon the actual condition and
location of the Aircraft), it shall be assumed that the Aircraft is in the
condition required under the Lease in the case of return of the Aircraft
pursuant to Article 12 of the Lease and Fair Market Value shall be determined
in accordance with the provisions of Section 4.03 of the Lease.
Federal Aviation Administration; FAA. The United States Federal
Aviation Administration and any successor agency or agencies thereto.
Final Drawing. Has the meaning specified in Section 1.01 of the
Intercreditor Agreement.
Fixed Renewal Rent. Semi-annual payments of rent during the Fixed
Renewal Term equal to the lesser of (i) Fair Market Rental as determined as of
the commencement of such Fixed Renewal Term and (ii) 50% of the average actual
semi-annual Basic Rent payable during the Basic Term.
Fixed Renewal Term. The term with respect to which the Lessee has
exercised its option to renew the Lease pursuant to the first paragraph of
Section 4.01(a) thereof and with respect to which the conditions set forth in
such Section 4.01(a) are met.
FPO Price. Has the meaning set forth in Section 4.02(a)(F) of the
Lease.
French Pledge Agreement. The French Pledge Agreement dated as of May
1, 1997 between the Owner Trustee and the Indenture Trustee.
FSB. First Security Bank, National Association, a national banking
association.
Government. The United States of America or an agency or
instrumentality thereof the obligations of which bear the full faith and
credit of the United States of America.
GTA. The General Terms Agreement dated as of July 3, 1991 between the
Engine Manufacturer and the Lessee related to the purchase by the Lessee of the
Engines as originally executed or as modified, amended or supplemented in
accordance with the terms thereof, but only insofar as the General Terms
Agreement relates to the Engines, to the extent assigned to the Owner Trustee
pursuant to the Engine Warranty Assignment.
Holder of a Certificate; Certificate Holder; Holder. As of any
particular time, the Person in whose name a Certificate shall be registered
(but not including the holder of any Pass Through Certificate).
Indemnitee. Each of SSB, in its individual capacity and as Owner
Trustee and Lessor, the Subordination Agent, in its individual capacity and in
its capacity as Subordination Agent, each Liquidity Provider, the Owner
Participant, the Indenture Trustee, in its individual capacity and as trustee,
the Owner Participant Guarantor and any successor (including any trustee which
may succeed to the Lessor's interest under the Lease), Affiliate, assign,
officer, director, employee, agent and servant of any of the foregoing, the
Lessor's Estate and the Trust Indenture Estate. Neither the Pass Through
Trustee nor any holder of a Pass Through Certificate shall be deemed to be an
Indemnitee.
Indenture. The Trust Indenture and Security Agreement (Federal
Express Corporation Trust No. N671FE), dated as of May 1, 1997, between the
Lessor and the Indenture Trustee, as supplemented by the Indenture and
Security Agreement Supplement.
Indenture and Security Agreement Supplement. The Indenture and
Security Agreement Supplement No. 1 (Federal Express Corporation Trust No.
N671FE) to be dated the Delivery Date, substantially in the form of Exhibit A
to the Indenture.
Indenture Default. Any event or condition which, with the lapse of
time or the giving of notice, or both, would constitute an Indenture Event of
Default.
Indenture Documents. Has the meaning specified in the Granting
Clause of the Indenture.
Indenture Event of Default. Each of the events specified in Section
7.01 of the Indenture.
Indenture Trustee. First Security Bank, National Association, a
national banking association, not in its individual capacity but solely as
Indenture Trustee under the Indenture.
Indenture Trustee's Liens. Any Lien against, on or with respect to
the Aircraft, the Lessor's Estate or the Trust Indenture Estate or any part
thereof resulting from (i) claims against the Indenture Trustee not related to
the administration of the Trust Indenture Estate or any transactions pursuant
to the Indenture or any document included in the Trust Indenture Estate, (ii)
any act or omission of the Indenture Trustee which is not related to the
transactions contemplated by the Operative Agreements or is in violation of
any of the terms of the Operative Agreements or (iii) Taxes imposed against
the Indenture Trustee in its individual capacity in respect of which the Lessee
has not indemnified (and is not obligated to indemnify) the Indenture Trustee
in such capacity.
Independent Appraisal. An appraisal conducted pursuant to Section
4.03 of the Lease.
Independent Investment Banker. An independent investment banking
institution of national standing appointed by the Lessee that is independent
in fact, does not have any direct financial interests, or any material
indirect financial interest, in the Lessee or any Affiliate of the Lessee, and
is not connected with the Lessee or any Affiliate of the Lessee, as an
officer, employee, promoter, underwriter, trustee, partner, director or Person
performing similar functions; provided, that if the Indenture Trustee shall
not have received written notice of such an appointment at least 10 days prior
to the Prepayment Date, "Independent Investment Banker" shall mean such an
institution appointed by the Indenture Trustee.
Intercreditor Agreement. The Intercreditor Agreement dated as of May
1, 1997, among the Pass Through Trustee, the Class A Liquidity Provider, the
Class B Liquidity Provider and the Subordination Agent.
Interest Drawing. Has the meaning specified in Section 1.01 of the
Intercreditor Agreement.
Invoice. The invoice for the Aircraft given by AVSA to the Lessor.
Lease. The Lease Agreement (Federal Express Corporation Trust No.
N671FE) dated as of May 1, 1997, entered into by the Lessor and the Lessee
concurrently with the execution and delivery of the Indenture, including,
without limitation, supplementation by one or more Lease Supplements entered
into pursuant to the applicable provisions of the Lease.
Lease Supplement. The Lease Supplement No. 1 (Federal Express
Corporation Trust No. N671FE) to be dated the Delivery Date, substantially in
the form of Exhibit A to the Lease.
Lease Term. The period commencing on the Delivery Date and ending at
the end of the Basic Term.
Lessee. Federal Express Corporation, a Delaware corporation.
Lessee Documents. Has the meaning set forth in Section 6.01(b) of the
Participation Agreement.
Lessor. State Street Bank and Trust Company of Connecticut, National
Association, a national banking association, not in its individual capacity
but solely as Owner Trustee under the Trust Agreement.
Lessor's Estate. All estate, right, title and interest of the Owner
Trustee in and to the Collateral Account, the Liquid Collateral, the Aircraft,
the Lease, any Lease Supplement, the Participation Agreement, AVSA's FAA Bill
of Sale, AVSA's Warranty Bill of Sale, the Airbus Guaranty, the Purchase
Agreement, the Purchase Agreement Assignment, the Consent and Agreement, the
AVSA Consent and Agreement, the Consent and Guaranty (to the extent assigned
by the Purchase Agreement Assignment), any Ancillary Agreement, the GTA, the
Engine Warranty Assignment, the Engine Consent, any warranty with respect to
the Airframe and the Engines, all amounts of Basic Rent and Supplemental Rent,
including without limitation, insurance proceeds (other than insurance
proceeds payable to or for the benefit of the Owner Trustee in its individual
capacity or the Owner Participant) and requisition, indemnity or other
payments of any kind for or with respect to the Aircraft (except amounts owing
to the Owner Participant, to the Indenture Trustee, to the Owner Trustee in its
individual capacity, or to any of their respective directors, officers,
employees and agents pursuant to Articles 8 and 9 of the Participation
Agreement), and all other property of the Owner Trustee purportedly subjected
to the Lien of the Indenture by the Granting Clause thereof; provided that in
no event shall "Lessor's Estate" include any Excepted Payment.
Lessor's Liens. Liens against, on or with respect to the Aircraft,
the Lessor's Estate or the Trust Indenture Estate or any part thereof, title
thereto or any interest therein arising as a result of (i) claims against the
Lessor, in its individual capacity or as Owner Trustee, or the Owner
Participant, in each case not related to the transactions contemplated by the
Operative Agreements, (ii) acts or omissions of the Lessor in its individual
capacity or as Owner Trustee, and, in the case of the Lessor in its individual
capacity, arising from its gross negligence or willful misconduct or expressly
prohibited under the Operative Agreements and any act or omission of the Owner
Participant which is in violation of any of the terms of the Operative
Agreements, (iii) Taxes or Expenses imposed against the Lessor, in its
individual capacity or as Owner Trustee, Owner Participant, Lessor's Estate or
the trust created by the Trust Agreement which are not required to be
indemnified against by the Lessee pursuant to the Participation Agreement by
reason of Section 8.01(b) or 9.01(b) thereof and which are not required to be
indemnified against by the Lessee pursuant to the Tax Indemnity Agreement, or
(iv) claims against the Lessor or the Owner Participant arising from the
voluntary transfer by the Lessor or the Owner Participant of its interests in
the Aircraft other than a transfer of the Aircraft pursuant to Section 4.02(a)
or Article 10 or 11 of the Lease and other than a transfer pursuant to the
exercise of the remedies set forth in Article 17 of the Lease.
Lien. Any mortgage, pledge, lien, charge, encumbrance, lease or
security interest or other similar interest.
Liquid Collateral. All amounts and securities deposited from time to
time in the Collateral Account and all the products, investments, earnings and
proceeds of the foregoing, including, but not limited to, all proceeds of the
investment or conversion thereof, voluntary or involuntary, into cash,
Specified Investments or other property, all rights to payment of any and
every kind, and other forms of obligations, and instruments and other property
which at any time constitute all or part or are included in the proceeds of
any of the foregoing.
Liquidity Facility. Has the meaning specified in Section 1.01 of the
Intercreditor Agreement.
Liquidity Provider. Has the meaning specified in Section 1.01 of the
Intercreditor Agreement.
Losses. Has the meaning specified in Section 17.02(a) of the
Participation Agreement.
Loss Payee. Has the meaning specified in Section 13.02(b)(i) of the
Lease.
Majority in Interest of Certificate Holders. As of a particular date
of determination, the Holders of more than 50% of the aggregate unpaid
principal amount of all Certificates outstanding as of such date excluding for
purposes of this definition any Certificates held by (i) the Owner Trustee or
the Owner Participant or any interests of the Owner Participant unless all
Certificates then outstanding shall be held by the Owner Participant, (ii) the
Lessee or (iii) any Affiliate of any thereof.
Make-Whole Premium. An amount determined as of the day before the
applicable Prepayment Date (or date of purchase, as the case may be) which an
Independent Investment Banker determines to be equal to the excess, if any, of
(i) the present value of the remaining scheduled payments of such principal
amount or portion thereof and interest thereon (excluding interest accrued
from the immediately preceding Payment Date to such Prepayment Date or date of
purchase, as the case may be) to the Maturity of such Certificate in
accordance with generally accepted financial practices assuming a 360-day year
consisting of twelve 30-day months at a discount rate equal to the Treasury
Yield, all as determined by the Independent Investment Banker over (ii) the
outstanding principal amount of such Certificate plus accrued interest.
Manufacturer. Airbus Industrie G.I.E., a groupement d'interet
economique formed under the laws of France.
Maturity. With respect to any Certificate, the date on which the
final principal amount of such Certificate is scheduled to be due and payable.
Moody's. Moody's Investors Service, Inc.
Net Present Value of Rents. The net present value, as of the
Delivery Date, of Basic Rent set forth in Schedule II of the Lease, discounted
at a rate equal to the Debt Rate per annum compounded semi-annually.
Non-U.S. Person. Any Person other than a U.S. Person.
Obsolete Parts. Parts which are severable from the Aircraft in
accordance with clauses (ii) and (iii) of the proviso to Section 9.02(b) of
the Lease and the Lessee in good faith determines to be obsolete or no longer
suitable or appropriate for use on the Airframe or any Engine.
Officer's Certificate. When delivered pursuant to the Indenture, a
certificate signed by a Responsible Officer of the Lessee or the Owner
Trustee, as the case may be, and delivered to the Indenture Trustee. Each
such certificate shall include the statements provided for in Section 15.07 of
the Indenture.
Operative Agreements. The Participation Agreement, the Trust
Agreement, AVSA's FAA Bill of Sale, AVSA's Warranty Bill of Sale, the Airbus
Guaranty, the Purchase Agreement, the Purchase Agreement Assignment, the GTA,
the Engine Warranty Assignment, the French Pledge Agreement, the Lease, the
Lease Supplement, the Owner Participant Guaranty, the Owner Trustee Guaranty,
if any, any Ancillary Agreement entered into by or with the written consent of
the Indenture Trustee, which by its terms is an Operative Agreement, the
Certificates outstanding at the time of reference, the Indenture, the
Indenture and Security Agreement Supplement, the Consent and Agreement, the
AVSA Consent and Agreement, the Consent and Guaranty (to the extent assigned
by the Purchase Agreement Assignment), the Engine Consent, the Tax Indemnity
Agreement, each Liquidity Facility, the Intercreditor Agreement, the
Collateral Account Control Agreement and any Assignment and Assumption
Agreement.
Opinion of Counsel. When delivered pursuant to the Indenture, a
written opinion of legal counsel, who in the case of counsel (a) for the
Lessee may be (i) an attorney employed by the Lessee who is generally
empowered to deliver such written opinions, (ii) Davis Polk & Wardwell or a
successor firm or (iii) other counsel designated by the Lessee and reasonably
satisfactory to the Indenture Trustee and (b) for the Owner Trustee or the
Indenture Trustee, an attorney selected by such Person and, in the case of the
Owner Trustee, reasonably satisfactory to the Indenture Trustee.
Outstanding. When used with respect to Certificates, as of the date
of determination and subject to the provisions of Section 10.04 of the
Indenture, all Certificates theretofore executed and delivered under the
Indenture, with the exception of the following:
(i) Certificates theretofore cancelled by the Indenture Trustee or
delivered to the Indenture Trustee for cancellation pursuant to
Section 2.08 of the Indenture or otherwise;
(ii) Certificates for which prepayment money in the necessary amount
has been theretofore deposited with the Indenture Trustee in trust
for the Holders of such Certificates pursuant to Section 14.01 of the
Indenture; provided, that if such Certificates are to be prepaid,
notice of such prepayment has been duly given pursuant to the
Indenture or provision therefor satisfactory to the Indenture Trustee
has been made; and
(iii) Certificates in exchange for or in lieu of which other
Certificates have been executed and delivered pursuant to Article II
of the Indenture.
Owner Participant. The trustor originally named in the Trust
Agreement and any successor thereto, and any Person to which the Owner
Participant transfers, in accordance with the Trust Agreement, its right,
title and interest in and to the Operative Agreements and the Lessor's Estate.
Owner Participant Guarantor. Philip Morris Capital Corporation, a
Delaware corporation, and any other provider of an Owner Participant Guaranty.
Owner Participant Guaranty. The Owner Participant Guaranty dated the
Certificate Closing Date by the Owner Participant Guarantor in favor of the
Lessee, the Owner Trustee, the Indenture Trustee and the Pass Through Trustee,
and any guaranty delivered in compliance with Section 7.03(d) of the
Participation Agreement.
Owner Trustee. SSB, not in its individual capacity except as
otherwise expressly stated, but solely as Owner Trustee under the Trust
Agreement.
Owner Trustee Guarantor. The provider of an Owner Trustee Guaranty.
Owner Trustee Guaranty. Any guaranty delivered in compliance with
Section 11.01(b)(ii) of the Participation Agreement.
Owner's Economic Return. The Owner Participant's anticipated net
after-tax book yield and aggregate after-tax cash during the Basic Term
utilizing the multiple investment sinking fund method of analysis, computed on
the basis of the same methodology and assumptions as were utilized by the
Owner Participant in determining Basic Rent, Stipulated Loss Value and
Termination Value percentages, as the case may be, as such assumptions may be
adjusted for events which have been the basis of adjustments to Rent pursuant
to Section 3.04 of the Lease.
Participation Agreement. The Participation Agreement (Federal Express
Corporation Trust No. N671FE), dated as of May 1, 1997, among the Lessee, the
Owner Trustee not in its individual capacity except as otherwise expressly
provided therein, but solely as owner trustee, the Owner Participant, the
Indenture Trustee not in its individual capacity except as otherwise expressly
provided therein, but solely as indenture trustee, the Pass Through Trustee
not in its individual capacity except as otherwise expressly provided therein,
but solely as pass through trustee and the Subordination Agent not in its
individual capacity except as otherwise expressly provided therein, but solely
as subordination agent.
Parts. All appliances, parts, components, instruments, appurtenances,
accessories, furnishings and other equipment of whatever nature (other than
complete Engines or engines) which may from time to time be incorporated or
installed in or attached to the Airframe or any Engine or title to which
remains vested in the Lessor pursuant to Article 8 of the Lease.
Pass Through Agreement. The Pass Through Trust Agreement dated as of
May 1, 1997 between the Lessee and the Pass Through Trustee.
Pass Through Certificates. Any of the Pass Through Certificates,
1997-1-A, the Pass Through Certificates, 1997-1-B or the Pass Through
Certificates, 1997-1-C, in each case as issued by the related Pass Through
Trust; and "Pass Through Certificates" means all of the Pass Through
Certificates issued by each of the Pass Through Trusts.
Pass Through Closing Date. The Business Day on which the sale of the
Pass Through Certificates to the Underwriters pursuant to the Underwriting
Agreement takes place.
Pass Through Trust. The Federal Express Corporation 1997-1 Pass
Through Trust Class A, Federal Express Corporation 1997-1 Pass Through Trust
Class B and Federal Express Corporation 1997-1 Pass Through Trust Class C, in
each case formed pursuant to the related Series Supplement in accordance with
the Pass Through Agreement; and "Pass Through Trusts" means all of such Pass
Through Trusts.
Pass Through Trustee. First Security Bank, National Association, a
national banking association, in its capacity as Pass Through Trustee under
the Pass Through Agreement and each Pass Through Trust.
Past Due Rate. In respect of (A) any amount payable to the Owner
Participant or the Owner Trustee a rate per annum during the period from and
including the due date to but excluding the date on which such amount is paid
in full equal to 2% plus the Debt Rate and (B) any principal of or interest on
any Certificate or any other amount payable under the Indenture, any
Certificate or any other Operative Agreement that is not paid when due
(whether at Maturity, by acceleration, by optional or mandatory prepayment or
otherwise) to any Holder, the Indenture Trustee or the Pass Through Trustee, a
rate per annum during the period from and including the due date to but
excluding the date on which such amount is paid in full equal to (i) in the
case of any such amount payable to the Holder of any Certificate, 2% plus the
interest rate applicable to such Certificate and (ii) in the case of any other
such amount, 2% plus the Debt Rate.
Payment Date. Each January 15 and July 15 commencing on July 15,
1997.
Payment Default. Any event specified in Section 16.01(a) or 16.01(b)
of the Lease which with the giving of notice or lapse of time or both would
constitute an Event of Default.
Permitted Investments. Those investments enumerated in Section
23.01(a) (i), (ii), (iii) and (iv) of the Lease.
Person. Any individual, sole proprietorship, partnership, joint
venture, joint stock company, trust, unincorporated organization, association,
corporation, institution, entity or government (federal, state, local,
foreign or any agency, instrumentality, division or body thereof).
Preliminary Notice. Has the meaning specified in Section 4.01(a) of
the Lease.
Premium Termination Date. With respect to the Series A Certificates,
December 27, 2011, with respect to the Series B Certificates, February 5, 2010
and with respect to the Series C Certificates, March 22, 2007.
Prepayment Date. Has the meaning specified in Section 6.02(b) of the
Indenture.
Prepayment Price. Has the meaning specified in Section 6.02(b) of the
Indenture.
Principal Amount. With respect to a Certificate means the stated
original principal amount of such Certificate and, with respect to all
Certificates, means the aggregate stated original principal amounts of all
Certificates.
Property. Any right or interest in or to property of any kind
whatsoever, whether real, personal or mixed and whether tangible or intangible.
Proposed Termination Date. The proposed date of termination of the
Lease as specified by the Lessee in its notice given pursuant to Section 10.01
thereof.
Purchase Agreement. The Airbus A300-600R Freighter Purchase Agreement,
dated as of July 3, 1991 between AVSA and the Lessee, including all exhibits,
appendices and letter agreements attached thereto as originally executed or as
modified, amended or supplemented in accordance with the terms thereof, but
only to the extent that the foregoing relates to the Aircraft and to the
extent assigned pursuant to the Purchase Agreement Assignment.
Purchase Agreement Assignment. The Purchase Agreement Assignment
(Federal Express Corporation Trust No. N671FE), dated as of May 1, 1997 between
the Lessor and the Lessee.
Purchase Price. Has the meaning specified in Ancillary Agreement II.
Record Date. With respect to Payment Dates under the Indenture
(except a date for payment of defaulted interest), December 31 for January 15
Payment Dates and June 30 for July 15 Payment Dates, whether or not such date
is a Business Day.
Recourse Amount. Has the meaning specified in Section 17.10 of the
Participation Agreement.
Refinancing. A non-recourse loan to the Lessor arranged pursuant to
Section 15.01 of the Participation Agreement.
Register. Has the meaning set forth in Section 3.02 of the Indenture.
Registrar. Has the meaning set forth in Section 3.02 of the
Indenture.
Regulation D. Regulation D of the Board of Governors of the Federal
Reserve System (or any successor), as the same may be modified and
supplemented and in effect from time to time.
Related Indentures. Collectively, the Trust Indenture and Security
Agreement for each of Federal Express Corporation Trust Nos. N670FE, N672FE,
N673FE, N674FE, N583FE and N584FE, each dated as of May 1, 1997, between the
Owner Trustee and the Indenture Trustee, the Trust Indenture and Security
Agreement for Federal Express Corporation Trust No. N581FE, dated as of May 1,
1997, between Wilmington Trust Company, as owner trustee and the Indenture
Trustee, and the Trust Indenture and Security Agreement for Federal Express
Corporation Trust No. N587FE, dated as of December 1, 1996, as amended and
restated as of May 1, 1997, between Wilmington Trust Company, as owner trustee
and the Indenture Trustee.
Remaining Weighted Average Life. On a given date with respect to any
Certificate the number of days equal to the quotient obtained by dividing (i)
the sum of each of the products obtained by multiplying (a) the amount of each
then remaining scheduled payment of principal of such Certificate by (b) the
number of days from and including such prepayment date to but excluding the
dates on which each such payment of principal is scheduled to be made; by (ii)
the then outstanding principal amount of such Certificate.
Renewal Rent. The amount payable by the Lessee as rent in accordance
with Section 4.01 of the Lease during any Renewal Term.
Renewal Term. One or more terms with respect to which the Lessee has
exercised its option to renew the Lease pursuant to Section 4.01(a) thereof.
Rent. All payments due from the Lessee under the Lease as Basic Rent,
Renewal Rent and Supplemental Rent, collectively.
Rent Payment Date. September 20, 2020 and each January 15 and July 15
commencing on July 15, 1997.
Reoptimization Date. Has the meaning specified in Section 15.02(a)
of the Participation Agreement.
Replacement Aircraft. Any aircraft substituted for the Aircraft
pursuant to Section 11.03(a) of the Lease.
Replacement Airframe. Has the meaning set forth in Section 11.03 of
the Lease.
Replacement Engine. A General Electric CF6-80C2-A5F engine (or an
engine of the same or another manufacturer) of equal or greater value,
airworthiness, remaining useful life and utility as the Engine being replaced,
together with all Parts relating to such engine; provided, however, that if
such replacement engine is not a General Electric CF6-80C2-A5F engine, such
replacement engine must then be commonly used in the commercial aviation
industry on Airbus A300-600 airframes.
Responsible Officer. With respect to the Owner Trustee (except for
purposes of the Trust Agreement in which case the definition of Responsible
Officer set forth in Section 3.10 of the Trust Agreement is applicable) or the
Indenture Trustee, any officer in its Corporate Trust Administration, as the
case may be, designated by such Person to perform obligations under the
Operative Agreements, and with respect to any other party, any corporate
officer or (except in the case of the Owner Participant) other employee of a
party who, in the normal performance of his or her operational
responsibilities, with respect to the subject matter of any covenant,
agreement or obligation of such party pursuant to any Operative Agreement,
would have responsibility for and knowledge of such matter and the
requirements of any Operative Agreement with respect thereto.
S&P. Standard & Poor's Ratings Group.
Scheduled Delivery Date. The Delivery Date specified in the Delivery
Notice pursuant to Section 3.01 of the Participation Agreement.
SEC. The Securities and Exchange Commission of the United States and
any successor agencies or authorities.
Secured Obligations. Has the meaning specified in the Granting
Clause of the Indenture.
Securities Act. The Securities Act of 1933, as amended.
Series "A" or "Series A Certificates". Certificates issued and
designated as "Series A" under the Indenture, in the Principal Amount and
maturities and bearing interest as specified in Exhibit B to the Indenture
under the heading "Series A".
Series "B" or "Series B Certificates". Certificates issued and
designated as "Series B" under the Indenture, in the Principal Amount and
maturities and bearing interest as specified in Exhibit B to the Indenture
under the heading "Series B".
Series "C" or "Series C Certificates". Certificates issued and
designated as "Series C" under the Indenture, in the Principal Amount and
maturities and bearing interest as specified in Exhibit B to the Indenture
under the heading "Series C".
Series Supplement or Series Supplements. The Series Supplement
1997-1-A to be executed and delivered by the Lessee and the Pass Through
Trustee, the Series Supplement 1997-1-B to be executed and delivered by the
Lessee and the Pass Through Trustee or the Series Supplement 1997-1-C to be
executed and delivered by the Lessee and the Pass Through Trustee.
Sinking Fund Redemption Date. Has the meaning specified in Section
6.06 of the Indenture.
Sinking Fund Redemption Price. Has the meaning specified in Section
6.06 of the Indenture.
Special Aviation Counsel. Daugherty, Fowler & Peregrin.
Specified Investments. Shall mean (a) direct obligations of the
United States of America or obligations fully guaranteed by the United States
of America; (b) commercial paper rated A-1/P-1 by S&P and Moody's,
respectively or, if such ratings are unavailable, rated by any nationally
recognized rating organization in the United States equal to the highest
rating assigned by such rating organization; (c) investments in negotiable
certificates of deposit, time deposits, banker's acceptances, commercial paper
or other direct obligations of, or obligations guaranteed by, commercial banks
organized under the laws of the United States or of any political subdivision
thereof (or any U.S. branch of a foreign bank) with issuer ratings of at least
B/C by Thomson Bankwatch, having maturities no later than 90 days following
the date of such investment; (d) overnight federal funds transactions with
members of the Federal Reserve System arranged by federal funds brokers; or
(e) overnight repurchase agreements with respect to the securities described
in clause (a) above entered into with an office of a bank or trust company
which is located in the United States of America or any bank or trust company
which is organized under the laws of the United States or any state thereof
and has capital, surplus and undivided profits aggregating at least $500
million.
SSB. State Street Bank and Trust Company of Connecticut, National
Association, a national banking association.
Stipulated Loss Value. As of any Stipulated Loss Value Determination
Date during the Basic Term, the amount determined by multiplying the Purchase
Price by the percentage set forth in Schedule III of the Lease under the
heading "Stipulated Loss Value Factor" opposite such date (as such Schedule
III may be adjusted from time to time as provided in Section 3.04 of the
Lease), and during any Renewal Term, the amount determined pursuant to Section
4.01(b) of the Lease. Notwithstanding any other provisions of the Lease or
the Participation Agreement or the Indenture, each Stipulated Loss Value for
the Aircraft shall be, under any circumstances and in any event, an amount,
together with so much of the arrears portion of Basic Rent due and owing
through the date of payment of Stipulated Loss Value as does not constitute an
Excepted Payment, at least sufficient to pay in full as of such date of
payment the aggregate unpaid principal amount of and accrued interest on the
Certificates outstanding on such date of payment. Subject to the immediately
preceding sentence, it is understood and agreed that the amounts set forth on
Schedule III of the Lease, for dates other than Rent Payment Dates on which
arrears Basic Rent is due, fully reflect appropriate Basic Rent accruals and
credits of unearned Basic Rent through such date and, accordingly, no further
accrual or credit shall be required through such date whenever Stipulated Loss
Value is to be calculated with reference to any such date; provided that if
amounts in respect of Stipulated Loss Value are payable under the Operative
Agreements after the Stipulated Loss Determination Date in respect of which
such Stipulated Loss Value was determined, the Lessor shall be compensated
during the period from the Stipulated Loss Determination Date to such payment
date in accordance with the provisions of the Operative Agreements.
Stipulated Loss Value Determination Date. Each date set forth on
Schedule III of the Lease.
Subordination Agent. First Security Bank, National Association, a
national banking association, not in its individual capacity but solely as
Subordination Agent.
Supplemental Rent. (a) All amounts, liabilities and obligations
which the Lessee assumes or agrees to perform or pay under the Lease or under
the Participation Agreement or Tax Indemnity Agreement or any Ancillary
Agreement or any other Operative Agreement to the Lessor, the Owner
Participant, the Indenture Trustee, the Subordination Agent, any Liquidity
Provider or others, including, without limitation, payments of Stipulated Loss
Value, FPO Price and amounts calculated by reference to Termination Value, any
amounts of Make-Whole Premium payable under the Indenture to the extent
provided in Section 3.03 of the Lease, and all amounts required to be paid by
Lessee under the agreements, covenants and indemnities contained in the Lease
or in the Participation Agreement or the Tax Indemnity Agreement or any other
Operative Agreement, but excluding Basic Rent and (b) all amounts that the
Owner Trustee is obligated to pay in accordance with clause (b) of the last
paragraph of Section 2.04 of the Indenture.
Tax. Has the meaning set forth in Section 8.01(a) of the
Participation Agreement.
Tax Indemnity Agreement. The Tax Indemnity Agreement (Federal
Express Corporation Trust No. N671FE), dated as of May 1, 1997, between the
Lessee and the Owner Participant.
Term. The Basic Term of the lease for the Aircraft under the Lease
and, if renewed pursuant to Section 4.01 of the Lease, each Renewal Term for
the Aircraft for which the Lease is renewed, or such earlier date on which the
Lease is terminated pursuant to its terms.
Termination Date. A Rent Payment Date during the Basic Term that is
on or after December 31, 2004 in the case of Article 10 of the Lease, and in
the case of (i) Section 4.02(a)(A) of the Lease, the Rent Payment Date falling
on July 15, 2015, (ii) Section 4.02(a)(D) or (E) of the Lease, a Rent
Payment Date that is on or after the seventh anniversary of the Delivery Date
and (iii) Section 4.02(a)(F) of the Lease, the last day of the Basic Term.
Termination Value. As of any Termination Date, the amount determined
by multiplying the Purchase Price by the percentage set forth in Schedule IV
of the Lease under the heading "Termination Value Factor" opposite such
Termination Date (as such Schedule IV may be adjusted from time to time as
provided in Section 3.04 of the Lease). Notwithstanding any other provisions
of the Lease, the Participation Agreement or the Indenture, each Termination
Value shall be, under any circumstances and in any event, an amount, together
with so much of the arrears portion of Basic Rent due and owing through the
date of payment of any amount calculated by reference to Termination Value as
does not constitute an Excepted Payment, at least sufficient to pay in full as
of such date of payment the aggregate unpaid principal amount of and accrued
interest on the Certificates outstanding on such date of payment. Subject to
the immediately preceding sentence, it is understood and agreed that the
amounts set forth on Schedule IV of the Lease, for dates other than Rent
Payment Dates on which arrears Basic Rent is due, fully reflect appropriate
Basic Rent accruals and credits of unearned Basic Rent through such date and,
accordingly, no further accrual or credit shall be required through such date
whenever Termination Value is to be calculated with reference to any such
date; provided that if amounts in respect of Termination Value are payable
under the Operative Agreements after the Termination Date in respect of which
such Termination Value was determined, the Lessor shall be compensated during
the period from the Termination Date to such payment date in accordance with
the provisions of the Operative Agreements.
Transaction Costs. Those costs and expenses set forth in Section
10.01(a) of the Participation Agreement.
Transportation Code. Title 49 of the United States Code, as amended
and in effect on the date of the Lease or as subsequently amended, or any
successor or substituted legislation at the time in effect and applicable, and
the regulations promulgated pursuant thereto.
Treasury Yield. At the time of determination with respect to any
Certificate, the interest rate (expressed as a semi-annual equivalent and as a
decimal and, in the case of United States Treasury bills, converted to a bond
equivalent yield) determined to be the per annum rate equal to the semi-annual
yield to maturity for United States Treasury securities maturing on the
Average Life Date on such Certificate and trading in the public securities
markets either as determined by interpolation between the most recent weekly
average yield to maturity for two series of United States Treasury securities,
trading in public securities markets, (i) one maturing as close as possible to,
but earlier than, the Average Life Date of such Certificate and (ii) the other
maturing as close as possible to, but later than, the Average Life Date of
such Certificate. In each case as published in the most recent H.15(519) or,
if a weekly average yield to maturity for United States Treasury securities
maturing on the Average Life Date of such Certificate is reported on the most
recent H.15 (519), such weekly average yield to maturity as published in such
H.15(919). "H.15(519)" means the weekly statistical release designated as
such, or any successor publication, published by the Board of Governors of the
Federal Reserve System. The date of determination of a Make-Whole Premium
will be the third Business Day prior to the applicable prepayment date and the
"most recent H.15(519)" means the H.15(519) published prior to the close of
business on the third Business Day prior to the applicable prepayment date.
Trust Agreement. The Trust Agreement (Federal Express Corporation
Trust No. N671FE), dated as of May 1, 1997, between the Owner Participant and
the Owner Trustee in its individual capacity.
Trust Estate. The Lessor's Estate.
Trust Indenture Act. The Trust Indenture Act of 1939, as amended.
Trust Indenture Estate. All estate, right, title and interest of the
Indenture Trustee in and to any of the property, rights, interests and
privileges granted to the Indenture Trustee pursuant to the Granting Clause of
the Indenture, other than Excepted Payments and any and all other rights of
the Owner Trustee or the Owner Participant expressly reserved to the Owner
Trustee or the Owner Participant pursuant to the Indenture.
Underwriters. Morgan Stanley & Co. Incorporated, First Chicago
Capital Markets, Inc., Goldman, Sachs & Co. and J.P. Morgan & Co.
Underwriting Agreement. The Underwriting Agreement dated May 22, 1997
among the Lessee and the Underwriters.
United States, U.S. or US. The United States of America.
U.S. Air Carrier. Any United States air carrier as to which there is
in force a certificate issued pursuant to Section 41102(a) or Section 41103 of
the Transportation Code, and as to which there is in force an air carrier
operating certificate issued pursuant to Chapter 447 of the Transportation
Code and Part 121 of the regulations under such Transportation Code, for
aircraft capable of carrying ten (10) or more individuals or 6,000 pounds or
more of cargo, or which may operate as an air carrier by certification or
otherwise under any successor or substitute provision thereof or in absence
thereof.
U.S. Person. A Person described in Section 7701(a)(30) of the Code.
SCHEDULE III
PERMITTED COUNTRY LIST
Australia Luxembourg
Austria Netherlands
Belgium New Zealand
Canada Norway
Denmark Philippines
Finland Portugal
France Republic of China (Taiwan)
Germany Singapore
Greece Sweden
Iceland Switzerland
Ireland Thailand
Japan United Kingdom
SCHEDULE IV
DEBT PORTION
Debt Portion $62,317,000
- ------------
EXHIBIT A(1)(a)(i)
[Letterhead of Federal Express]
[Certificate Closing Date]
To the Addressees Listed on Schedule A Attached
Re: Federal Express Corporation Trust No. N671FE
Ladies and Gentlemen:
I am the Vice President - Law of Federal Express
Corporation, a Delaware corporation ("Federal"), and am familiar with the
transactions contemplated by the Participation Agreement (Federal Express
Corporation Trust No. N671FE), dated as of May 1, 1997 (the "Participation
Agreement"), among Federal, as Lessee, PMCC Leasing Corporation, as Owner
Participant, State Street Bank and Trust Company of Connecticut, National
Association, not in its individual capacity, except as otherwise stated,
but solely as Owner Trustee, and First Security Bank, National Association,
not in its individual capacity, except as otherwise stated, but solely as
Indenture Trustee, Pass Through Trustee and Subordination Agent, relating
to the Aircraft. This opinion is being delivered pursuant to Section
4.01(k)(i) of the Participation Agreement. Capitalized terms not otherwise
defined herein have the meanings assigned thereto in the Participation
Agreement.
The Participation Agreement provides, among other things,
for the financing on the Delivery Date of a portion of the Owner Trustee's
payment of the Purchase Price of one Airbus A300F4-605R aircraft (the
"Aircraft"), using the proceeds from the public offering of the Pass
Through Certificates. Three Classes of Pass Through Certificates will be
issued by three Pass Through Trusts formed to acquire, among other
securities, the Certificates bearing a particular interest rate and having
a particular Maturity that will be issued under the Indenture.
In connection with the opinions expressed below, I have
examined or caused to be examined by attorneys under my supervision, (i)
executed counterparts of the Pass Through Agreement, the Series Supplements
and the Operative Agreements to be delivered on the Certificate Closing
Date (the "Certificate Closing Date Documents") and (ii) the forms of the
Operative Agreements to be delivered on the Delivery Date. We have relied
upon originals or copies, certified or otherwise identified to our
satisfaction, of such corporate records, documents and other instruments as
in our judgment are relevant to rendering the opinions expressed below. As
to any facts material to the opinions expressed below (other than any
thereof relating to Federal), we have relied upon the representations and
warranties made in the Certificate Closing Date Documents, the accuracy of
which we have not independently investigated or verified. In such
examination, we have assumed the genuineness of all signatures (other than
the signatures of Federal) and the authenticity of all documents submitted
to us as originals and the conformity with the originals of all documents
submitted to us as copies. We have also assumed that each of the parties
to each of the Certificate Closing Date Documents, other than Federal, has
full power, authority and legal right to enter into such Certificate
Closing Date Documents and that each such Certificate Closing Date Document
has been duly authorized, executed and delivered by each of such parties.
Based on the foregoing, it is my opinion that:
1. Federal is a corporation duly incorporated, validly
existing and in good standing under the laws of the State of Delaware, is a
"citizen of the United States" within the meaning of Section 40102(a)(15)
of the Transportation Code, and has or had, on the date of execution
thereof, the corporate power and authority to carry on its business as
currently conducted and to enter into and perform its obligations under the
Certificate Closing Date Documents to which it is a party. Federal is duly
qualified to do business and is in good standing in the State of Tennessee
and each other state of the United States in which its operations or the
nature of its business requires Federal to so qualify, except where the
failure to so qualify would not have a material adverse impact on Federal
or its business.
2. Federal possesses all necessary certificates,
franchises, licenses, permits, rights and concessions and consents which
are material to the operation of the routes flown by it and the conduct of
its business and operations as currently conducted, and each such
certificate, franchise, license, permit, right and concession and consent
is in full force and effect.
3. Each of the Certificate Closing Date Documents to which
Federal is a party has or had, on the date of execution thereof, been duly
authorized, executed and delivered by Federal and each constitutes the
legal, valid and binding obligation of Federal enforceable against Federal
in accordance with its terms. Each of the Certificate Closing Date
Documents to which Federal is to be a party and which are to be executed on
the Delivery Date has been duly authorized by Federal.
4. Neither the execution and delivery by Federal of the
Certificate Closing Date Documents to which Federal is a party, nor the
consummation of any of the transactions by Federal contemplated thereby,
nor the performance of the obligations thereunder by Federal, did at the
time of execution and delivery, or does presently (a) require any
stockholder approval or violate the certificate of incorporation or by-laws
of Federal or (b) conflict with or contravene the provisions of, or
constitute a default under, or result in the creation of any Lien (other
than Liens permitted under Section 6.01(a) of the Lease) upon the property
of Federal under any law, governmental rule or regulation, or the charter
or bylaws of Federal or any order, writ, injunction or decree of any court
or governmental authority against Federal or by which any of its properties
may be bound or any indenture, mortgage, contract or other agreement known
to me to which Federal is a party or by which it may be bound or, require
the approval or consent of any trustee or the holders of any indebtedness
or obligations of Federal.
5. Neither the execution and delivery by Federal of the
Certificate Closing Date Documents to which it is a party, nor the
consummation of any transactions by Federal contemplated thereby, nor the
performance of the obligations thereunder by Federal, did or does, as the
case may be, (a) require the consent or approval of, the giving of notice
to, or (except as described or contemplated in the Participation Agreement
and the Lease, all of which are required to be performed on or prior to the
Certificate Closing Date and which shall have been accomplished on or prior
to the Certificate Closing Date) the registration with, or the taking of
any other action in respect of, the Aeronautics Authority, the Securities
and Exchange Commission or any other authority or agency of the federal
government or of the State of Tennessee other than (i) the registration of
the issuance and sale of the Pass Through Certificates under the Securities
Act and (ii) compliance with the securities laws of each applicable state,
or (b) contravene any judgment or order applicable to or binding on Federal
or any law or governmental rule or regulation of the United States or of
the State of Tennessee.
6. There is no pending, or to my knowledge, threatened
action or proceeding before any court or administrative agency which
individually (or in the aggregate in the case of any group of related
lawsuits) is expected to have a material adverse effect on (A) the
financial condition of Federal, except for the matters described (a) under
"Legal Proceedings" in Federal's Annual Report on Form 10-K for the fiscal
year ended May 31, 1996 (as updated by Note 7 to the financial statements
included in Federal's Quarterly Reports on Form 10-Q for the fiscal
quarters ended August 31, 1996, November 30, 1996 and February 28, 1997)
and (b) in Federal's Current Reports on Form 8-K dated June 7, 1996, August
16, 1996 and March 4, 1997, as to which I can express no opinion at this
time concerning Federal's liability (if any) or the effect of any adverse
determination upon the business, condition (financial or otherwise) or
operations of Federal or (B) the ability of Federal to perform its
obligations under the Certificate Closing Date Documents.
7. Federal is a duly certificated "air carrier" within the
meaning of the Transportation Code, and a holder of a certificate under
Sections 41102(a) and 41103 of the Transportation Code, and an "air carrier
operating certificate" issued under Chapter 447 of the Transportation Code
for aircraft capable of carrying ten (10) or more individuals or 6,000
pounds or more of cargo, and each such certificate is in full force and
effect.
8. Federal's principal place of business and chief
executive office (as such term is defined in the Uniform Commercial Code in
effect in the State of Tennessee) are located at 2005 Corporate Avenue,
Memphis, Shelby County, Tennessee.
9. Federal is not, and is not directly or indirectly
controlled by or acting on behalf of any Person which is, an "investment
company" within the meaning of the Investment Company Act of 1940, as
amended.
The opinions expressed in paragraph 3 above as to the
enforceability of the Certificate Closing Date Documents to which Federal
is a party are based upon the assumption for purposes of such opinions and
without independent analysis that, notwithstanding the respective choice of
laws clauses in the Certificate Closing Date Documents, the governing law
with respect to each of the Certificate Closing Date Documents is identical
in all relevant respects to the law of the State of Tennessee. Insofar as
the foregoing opinion relates to the enforceability of any instrument, such
enforceability is subject to applicable bankruptcy, insolvency and other
similar laws affecting the enforcement of creditors' rights generally
(whether such enforceability is considered in a proceeding in equity or at
law). The enforceability of the remedies provided under the Lease may also
be limited by applicable laws which may affect the remedies provided
therein but which do not in my opinion affect the validity of the Lease or
make such remedies inadequate for the practical realization of the benefits
intended to be provided thereby.
I do not express any opinion as to matters governed by any
law other than the Federal laws of the United States of America, the
corporation law of the State of Delaware and the laws of the State of
Tennessee.
This opinion is delivered to you solely for your use in
connection with the transaction described herein, and may not be used for
any other purpose, and may not be relied upon by any other person, without
my prior written consent.
George W. Hearn
SCHEDULE A
Owner Trustee
State Street Bank and Trust Company
of Connecticut, National Association
Two International Place
4th Floor
Boston, Massachusetts 02110
Indenture Trustee, Pass Through Trustee & Subordination Agent
First Security Bank, National Association
79 South Main Street
Salt Lake City, Utah 84111
Owner Participant
PMCC Leasing Corporation
200 First Stamford Place
Stamford, Connecticut 06902
Underwriters
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
First Chicago Capital Markets, Inc.
Corporate Securities
One First National Plaza
Chicago, Illinois 60670
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
J.P. Morgan & Co.
60 Wall Street
New York, New York 10260
Liquidity Provider
Kredietbank N.V., New York Branch
125 West 55th Street
New York, New York 10019
EXHIBIT A(1)(a)(ii)
[Letterhead of Federal Express]
[Delivery Date]
To the Addressees Listed on Schedule A Attached
Re: Federal Express Corporation Trust No. N671FE
Ladies and Gentlemen:
I am the Vice President - Law of Federal Express
Corporation, a Delaware corporation ("Federal"), and am familiar with the
transactions contemplated by the Participation Agreement (Federal Express
Corporation Trust No. N671FE), dated as of May 1, 1997 (the "Participation
Agreement"), among Federal, as Lessee, PMCC Leasing Corporation, as Owner
Participant, State Street Bank and Trust Company of Connecticut, National
Association, not in its individual capacity, except as otherwise stated,
but solely as Owner Trustee, and First Security Bank, National Association,
not in its individual capacity, except as otherwise stated, but solely as
Indenture Trustee, Pass Through Trustee and Subordination Agent, relating
to the Aircraft. This opinion is being delivered pursuant to Section
4.02(d)(i) of the Participation Agreement. Capitalized terms not otherwise
defined herein have the meanings assigned thereto in the Participation
Agreement.
The Participation Agreement provides, among other things,
for the financing on the Delivery Date of a portion of the Owner Trustee's
payment of the Purchase Price of one Airbus A300F4-605R aircraft (the
"Aircraft"), using the proceeds from the public offering of the Pass
Through Certificates. Three Classes of Pass Through Certificates were
issued by three Pass Through Trusts formed to acquire, among other
securities, the Certificates bearing a particular interest rate and having
a particular Maturity that were issued under the Indenture, as supplemented
by the related Indenture and Security Agreement Supplement.
In connection with the opinions expressed below, I have
examined or caused to be examined by attorneys under my supervision,
executed counterparts of the Operative Agreements, the Pass Through
Agreement and each Series Supplement (the "Transaction Agreements"). We
have relied upon originals or copies, certified or otherwise identified to
our satisfaction, of such corporate records, documents and other
instruments as in our judgment are relevant to rendering the opinions
expressed below. As to any facts material to the opinions expressed below
(other than any thereof relating to Federal), we have relied upon the
representations and warranties made in the Transaction Agreements, the
accuracy of which we have not independently investigated or verified. In
such examination, we have assumed the genuineness of all signatures (other
than the signatures of Federal) and the authenticity of all documents
submitted to us as originals and the conformity with the originals of all
documents submitted to us as copies. We have also assumed that each of the
parties to each of the Transaction Agreements, other than Federal, has full
power, authority and legal right to enter into such Transaction Agreements
and that each such Transaction Agreement has been duly authorized, executed
and delivered by each of such parties.
Based on the foregoing, it is my opinion that:
1. Federal is a corporation duly incorporated, validly
existing and in good standing under the laws of the State of Delaware, is a
"citizen of the United States" within the meaning of Section 40102(a)(15)
of the Transportation Code, and has or had, on the date of execution
thereof, the corporate power and authority to carry on its business as
currently conducted and to enter into and perform its obligations under the
Transaction Agreements to which it is a party. Federal is duly qualified
to do business and is in good standing in the State of Tennessee and each
other state of the United States in which its operations or the nature of
its business requires Federal to so qualify, except where the failure to so
qualify would not have a material adverse impact on Federal or its
business.
2. Federal possesses all necessary certificates,
franchises, licenses, permits, rights and concessions and consents which
are material to the operation of the routes flown by it and the conduct of
its business and operations as currently conducted, and each such
certificate, franchise, license, permit, right and concession and consent
is in full force and effect.
3. Each of the Transaction Agreements to which Federal is a
party has or had, on the date of execution thereof, been duly authorized,
executed and delivered by Federal and each constitutes the legal, valid and
binding obligation of Federal enforceable against Federal in accordance
with its terms.
4. Neither the execution and delivery by Federal of the
Transaction Agreements to which Federal is a party, nor the consummation of
any of the transactions by Federal contemplated thereby, nor the
performance of the obligations thereunder by Federal, did at the time of
execution and delivery, or does presently (a) require any stockholder
approval or violate the certificate of incorporation or by-laws of Federal
or (b) conflict with or contravene the provisions of, or constitute a
default under, or result in the creation of any Lien (other than Liens
permitted under Section 6.01(a) of the Lease) upon the property of Federal
under any law, governmental rule or regulation, or the charter or bylaws of
Federal or any order, writ, injunction or decree of any court or
governmental authority against Federal or by which any of its properties
may be bound or any indenture, mortgage, contract or other agreement known
to me to which Federal is a party or by which it may be bound or, require
the approval or consent of any trustee or the holders of any indebtedness
or obligations of Federal.
5. Neither the execution and delivery by Federal of the
Transaction Agreements to which it is a party, nor the consummation of any
transactions by Federal contemplated thereby, nor the performance of the
obligations thereunder by Federal, did or does, as the case may be, (a)
require the consent or approval of, the giving of notice to, or (except as
described or contemplated in the Participation Agreement and the Lease, all
of which were or are required to be performed on or prior to the Delivery
Date and which were or shall have been accomplished on or prior to the
Delivery Date) the registration with, or the taking of any other action in
respect of, the Aeronautics Authority, the Securities and Exchange
Commission or any other authority or agency of the federal government or of
the State of Tennessee other than (i) the registration of the issuance and
sale of the Pass Through Certificates under the Securities Act, (ii)
compliance with the securities laws of each applicable state and (iii) the
filings and recordings referred to in paragraph 7 below, or (b) contravene
any judgment or order applicable to or binding on Federal or any law or
governmental rule or regulation of the United States or of the State of
Tennessee.
6. There is no pending, or to my knowledge, threatened
action or proceeding before any court or administrative agency which
individually (or in the aggregate in the case of any group of related
lawsuits) (i) is expected to have a material adverse effect on (A) the
financial condition of Federal, except for the matters described (a) under
"Legal Proceedings" in Federal's Annual Report on Form 10-K for the fiscal
year ended May 31, 1996 (as updated by Note 7 to the financial statements
included in Federal's Quarterly Reports on Form 10-Q for the fiscal
quarters ended August 31, 1996, November 30, 1996 and February 28, 1997)
and (b) in Federal's Current Reports on Form 8-K dated June 7, 1996, August
16, 1996 and March 4, 1997, as to which I can express no opinion at this
time concerning Federal's liability (if any) or the effect of any adverse
determination upon the business, condition (financial or otherwise) or
operations of Federal or (B) the ability of Federal to perform its
obligations under the Transaction Agreements, or (ii) involves the
Aircraft.
7. Except for the registration in the Owner Trustee's name
of the Aircraft pursuant to the Transportation Code, and except for the
filing and, where appropriate, recording, pursuant to the Transportation
Code of (A) AVSA's FAA Bill of Sale, (B) the Trust Agreement, (C) the
Lease (with the Lease Supplement covering the Aircraft, the Indenture and
the Indenture and Security Agreement Supplement covering the Aircraft
attached as exhibits) and (D) the Indenture (with the Indenture and
Security Agreement Supplement covering the Aircraft attached as an
exhibit), no further action, including any filing or recording of any
document is necessary or advisable in order to establish and perfect the
Owner Trustee's title to and interest in the Aircraft as against Federal
and any third parties, or to perfect the first mortgage lien on the
Aircraft in favor of the Indenture Trustee in each case with respect to
such portion of the Aircraft as is covered by the recording system
established by the Transportation Code.
8. Federal is a duly certificated "air carrier" within the
meaning of the Transportation Code, and a holder of a certificate under
Sections 41102(a) and 41103 of the Transportation Code, and an "air carrier
operating certificate" issued under Chapter 447 of the Transportation Code
for aircraft capable of carrying ten (10) or more individuals or 6,000
pounds or more of cargo, and each such certificate is in full force and
effect.
9. On the date hereof the Owner Trustee received good and
valid title to the Aircraft free and clear of all Liens on file with the
FAA, except for Liens permitted under Section 6.01(a) of the Lease.
10. Federal's principal place of business and chief
executive office (as such term is defined in the Uniform Commercial Code in
effect in the State of Tennessee) are located at 2005 Corporate Avenue,
Memphis, Shelby County, Tennessee.
11. Federal is not, and is not directly or indirectly
controlled by or acting on behalf of any Person which is, an "investment
company" within the meaning of the Investment Company Act of 1940, as
amended.
The opinions expressed in paragraph 3 above as to the
enforceability of the Transaction Agreements to which Federal is a party
are based upon the assumption for purposes of such opinions and without
independent analysis that, notwithstanding the respective choice of laws
clauses in the Transaction Agreements, the governing law with respect to
each of the Transaction Agreements is identical in all relevant respects to
the law of the State of Tennessee. Insofar as the foregoing opinion
relates to the enforceability of any instrument, such enforceability is
subject to applicable bankruptcy, insolvency and other similar laws
affecting the enforcement of creditors' rights generally (whether such
enforceability is considered in a proceeding in equity or at law). The
enforceability of the remedies provided under the Lease may also be limited
by applicable laws which may affect the remedies provided therein but which
do not in my opinion affect the validity of the Lease or make such remedies
inadequate for the practical realization of the benefits intended to be
provided thereby.
I do not express any opinion as to matters governed by any
law other than the Federal laws of the United States of America, the
corporation law of the State of Delaware and the laws of the State of
Tennessee.
As to the matters referred to in paragraphs 5, 7 and 9, I
have relied on the opinion of Daugherty, Fowler & Peregrin of even date
herewith, to the extent such matters are addressed in such counsel's
opinion and subject to the assumptions and qualifications expressed
therein.
This opinion is delivered to you solely for your use in
connection with the transaction described herein, and may not be used for
any other purpose, and may not be relied upon by any other person, without
my prior written consent.
George W. Hearn
SCHEDULE A
Owner Trustee
State Street Bank and Trust Company
of Connecticut, National Association
Two International Place
4th Floor
Boston, Massachusetts 02110
Indenture Trustee, Pass Through Trustee & Subordination Agent
First Security Bank, National Association
79 South Main Street
Salt Lake City, Utah 84111
Owner Participant
PMCC Leasing Corporation
200 First Stamford Place
Stamford, Connecticut 06902
Underwriters
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
First Chicago Capital Markets, Inc.
Corporate Securities
One First National Plaza
Chicago, Illinois 60670
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
J.P. Morgan & Co.
60 Wall Street
New York, New York 10260
Liquidity Provider
Kredietbank N.V., New York Branch
125 West 55th Street
New York, New York 10019
EXHIBIT A(1)(b)(i)
[Letterhead of Davis Polk & Wardwell]
[Certificate Closing Date]
To Each of the Parties named on Schedule A Hereto
Re: Federal Express Corporation Trust No. N671FE
Ladies and Gentlemen:
We have acted as special counsel for Federal Express
Corporation, a Delaware corporation ("Federal Express"), in connection with
the transactions contemplated by the Participation Agreement (Federal Express
Corporation Trust No. N671FE), dated as of May 1, 1997 (the "Participation
Agreement"), among Federal Express, as Lessee, PMCC Leasing Corporation, as
Owner Participant, State Street Bank and Trust Company of Connecticut,
National Association, not in its individual capacity, except as otherwise
stated, but solely as Owner Trustee, and First Security Bank, National
Association, not in its individual capacity, except as otherwise stated, but
solely as Indenture Trustee, Pass Through Trustee and Subordination Agent,
relating to the Aircraft. This opinion is being delivered pursuant to Section
4.01(k)(v) of the Participation Agreement. Capitalized terms not otherwise
defined herein have the meanings assigned thereto in the Participation
Agreement.
The Participation Agreement provides, among other things, for
the financing on the Delivery Date of a portion of the Owner Trustee's payment
of the Purchase Price of one Airbus A300F4-605R Aircraft using the proceeds
from the public offering of the Pass Through Certificates. On the Certificate
Closing Date, three Classes of Pass Through Certificates will be issued by
separate Pass Through Trusts, each formed to acquire, among other securities,
the Certificates bearing a particular interest rate and having a particular
Maturity that will be issued under the Indenture.
In connection with the opinions expressed below, we have
examined executed counterparts of the Operative Agreements, the Pass Through
Certificates, the Pass Through Agreement and each Series Supplement (the
"Certificate Closing Date Documents") and the forms of the Operative
Agreements to be delivered on the Delivery Date. We have also examined
originals, or copies certified to our satisfaction, of such other agreements,
documents, certificates and statements of governmental officials and corporate
officers as we have deemed necessary or advisable as a basis for such
opinions. In such examination, we have assumed the genuineness of all
signatures and the authenticity of all documents submitted to us as originals
and the conformity with the originals of all documents submitted to us as
copies.
As to any facts material to our opinions expressed below, we
have, with your consent, relied on the representations and warranties made in
or pursuant to the Participation Agreement and the other documents referred to
therein, the accuracy of which we have not independently verified. In
addition, we have, when relevant facts were not independently established by
us, relied, to the extent we deemed such reliance proper, upon certificates of
public officials and certificates, telegrams and other written or telephoned
statements of officers of the parties referred to herein.
Based on the foregoing, it is our opinion that:
1. Assuming (i) the due authorization, execution and
delivery of the Certificate Closing Date Documents by each of the parties
to each such document (other than Federal Express), (ii) each such party
has full power and legal right to enter into and perform its respective
obligations under the Certificate Closing Date Documents, (iii) that the
execution, delivery and performance of each of the Certificate Closing Date
Documents by each of the parties thereto will not violate the respective
parties' constituent documents, (iv) the due authorization, execution,
issuance and delivery by the Owner Trustee, and the due authentication by
the Indenture Trustee, of the Certificates to be issued under the Indenture
in accordance with the terms of the Indenture, (v) the due authorization,
execution, issuance, delivery and authentication by the Pass Through
Trustee of the Pass Through Certificates to be issued under the Pass
Through Agreement and the Series Supplement relating to such Pass Through
Certificates, in each case in accordance with the terms of the Pass Through
Agreement and such Series Supplement, and (vi) that the form of each
Certificate Closing Date Document is in compliance with all applicable laws
and governmental rules and regulations (other than the laws of the United
States and the State of New York), then: (A) to the extent governed by New
York law, each Certificate Closing Date Document in form constitutes a
legal, valid and binding agreement of each party thereto enforceable
against each such party in accordance with its terms; (B) the Indenture
creates, for the benefit of the Holders, the security interest in the Trust
Indenture Estate that it purports to create, except that no opinion is
given with respect to perfection of such security interest on the date
hereof; (C) the Certificates, when issued to and acquired by the Pass
Through Trustee, will be legal, valid and binding obligations of the Owner
Trustee enforceable against the Owner Trustee in accordance with their
terms and the terms of the Indenture and will be entitled to the benefits
of the Indenture, including the benefit of the security interest created
thereby, except that no opinion is given with respect to perfection of such
security interest on the date hereof; (D) the Pass Through Certificates,
when issued to and acquired by the Underwriters in accordance with the
Underwriting Agreement, will be legal, valid and binding obligations of the
Pass Through Trustee enforceable against the Pass Through Trustee in
accordance with their terms and will be entitled to the benefits of the
Pass Through Agreement and the Series Supplement relating thereto; and (E)
the beneficial interest of the Owner Participant under the Trust Agreement
in and to the properties which are part of the Trust Indenture Estate is
subject, to the extent provided in the Indenture, to the Lien of the
Indenture in favor of the Holders.
2. (a) Each of the Certificate Closing Date Documents to
which Federal Express is a party has been duly authorized, executed and
delivered by Federal Express. Each of the Operative Agreements to which
Federal Express is to be a party and which are to be delivered on the
Delivery Date has been authorized by Federal Express.
(b) The execution, delivery and performance by Federal
Express of each of the Certificate Closing Date Documents to which Federal
Express is a party do not, or did not on the date of execution thereof,
violate, and fully comply, or did fully comply on the date of execution
thereof, with, any laws and governmental rules and regulations of the State
of New York that may be applicable to Federal Express. The opinion set
forth in this paragraph 2(b) is rendered without regard to the taking of
any action or the conduct of any other business by Federal Express in the
State of New York other than the transactions contemplated by the
Certificate Closing Date Documents.
3. The execution, delivery and performance of the
Certificate Closing Date Documents (other than the Certificates) by the
Owner Trustee in its individual or trust capacity, as the case may be, and
the issuance, execution, delivery and performance of the Certificates by
the Owner Trustee in its trust capacity do not violate, and fully comply
with, any laws and governmental rules and regulations of the State of New
York that may be applicable to the Owner Trustee in its individual or trust
capacity, as the case may be. The opinion set forth in this paragraph 3 is
rendered without regard to the effect, if any, on such issuance (in the
case of the Certificates), execution, delivery or performance, of the
taking of any action, the conduct of any business or the exercise of any
other powers by State Street Bank and Trust Company of Connecticut,
National Association in its individual or trust capacity in the State of
New York not related to the transactions contemplated by the Certificate
Closing Date Documents. We have assumed that State Street Bank and Trust
Company of Connecticut, National Association has made the filings necessary
to comply with Section 131.3 of the Banking Law of the State of New York,
however we express no opinion as to whether State Street Bank and Trust
Company of Connecticut, National Association is required to comply with
said Section 131.3.
4. It is not necessary, in connection with the creation of
the beneficial interest of the Owner Participant in the Trust Indenture Estate
under the circumstances contemplated by the Participation Agreement to
register such beneficial interest under the Securities Act of 1933, as
amended, or to qualify the Trust Agreement under the Trust Indenture Act of
1939, as amended.
The foregoing opinions are subject to the following
qualifications:
(a) We have relied, with your consent, without independent
investigation and verification and subject to the assumptions and
qualifications contained therein, upon the opinion of George W.
Hearn, Vice President - Law of Federal Express to be delivered to
you and dated the date hereof, for purposes of the matters covered
thereby.
(b) We are qualified to practice law in the State of New York,
and we do not purport to be experts on, or to express any opinion
herein concerning, any laws other than the laws of the State of New
York, the laws of the United States and the General Corporation Law
of the State of Delaware.
(c) The opinion contained in paragraph 1(A) above as to
enforceability is subject to (i) applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement
of creditors' rights generally and (ii) general principles of equity
which may affect the remedies provided in the agreements referred to
in said opinions, which laws and principles, however, do not in our
opinion make the remedies provided in said agreements inadequate for
the practical realization of the benefits of the security intended to
be provided thereby.
(d) This opinion is rendered solely to you at Federal
Express's request in connection with the above matter. This
opinion may not be relied upon by you for any other purpose or
relied upon by any other Person without our prior written consent.
Very truly yours,
Davis Polk & Wardwell
SCHEDULE A
Lessee
Federal Express Corporation
2007 Corporate Avenue
Memphis, Tennessee 38132
Owner Trustee
State Street Bank and Trust Company
of Connecticut, National Association
Two International Place
4th Floor
Boston, Massachusetts 02110
Indenture Trustee, Pass Through Trustee & Subordination Agent
First Security Bank, National Association
79 South Main Street
Salt Lake City, Utah 84111
Owner Participant
PMCC Leasing Corporation
200 First Stamford Place
Stamford, Connecticut 06902
Underwriters
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
First Chicago Capital Markets, Inc.
Corporate Securities
One First National Plaza
Chicago, Illinois 60670
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
J.P. Morgan & Co.
60 Wall Street
New York, New York 10260
Liquidity Provider
Kredietbank N.V., New York Branch
125 West 55th Street
New York, New York 10019
EXHIBIT A(1)(b)(ii)
[Letterhead of Davis Polk & Wardwell]
[Delivery Date]
To Each of the Parties named on Schedule A Hereto
Re: Federal Express Corporation Trust No. N671FE
Ladies and Gentlemen:
We have acted as special counsel for Federal Express
Corporation, a Delaware corporation ("Federal Express"), in connection with
the transactions contemplated by the Participation Agreement (Federal Express
Corporation Trust No. N671FE), dated as of May 1, 1997 (the "Participation
Agreement"), among Federal Express, as Lessee, PMCC Leasing Corporation, as
Owner Participant, State Street Bank and Trust Company of Connecticut,
National Association, not in its individual capacity but solely as Owner
Trustee, and First Security Bank, National Association, not in its individual
capacity, except as otherwise stated, but solely as Indenture Trustee, Pass
Through Trustee and Subordination Agent, relating to the Aircraft. This
opinion is being delivered pursuant to Section 4.02(d)(ii) of the
Participation Agreement. Capitalized terms not otherwise defined herein have
the meanings assigned thereto in the Participation Agreement.
The Participation Agreement provides, among other things, for
the financing on the Delivery Date of the Owner Trustee's payment of a portion
of the Purchase Price of one Airbus A300F4-605R Aircraft (the "Aircraft") using
the proceeds from the public offering of the Pass Through Certificates. On the
Certificate Closing Date, three Classes of Pass Through Certificates were
issued by separate Pass Through Trusts, each formed to acquire, among other
securities, the Certificates bearing a particular interest rate and having a
particular Maturity issued under the Indenture. The Aircraft is to be leased
to Federal Express by the Owner Trustee pursuant to the Lease and subjected to
the Lien of the Indenture, and is to be delivered by the Owner Trustee to the
Lessee on this date, and in connection with the delivery of the Aircraft, the
Owner Trustee and Federal Express will execute and deliver the Lease
Supplement, and the Owner Trustee will execute and deliver the Indenture and
Security Agreement Supplement.
In connection with the opinions expressed below, we have
examined executed counterparts of the Operative Agreements, the Pass Through
Certificates, the Pass Through Agreement and each Series Supplement (the
"Transaction Agreements"). We have also examined originals, or copies
certified to our satisfaction, of such other agreements, documents,
certificates and statements of governmental officials and corporate officers
as we have deemed necessary or advisable as a basis for such opinions. In such
examination, we have assumed the genuineness of all signatures and the
authenticity of all documents submitted to us as originals and the conformity
with the originals of all documents submitted to us as copies.
As to any facts material to our opinions expressed below, we
have, with your consent, relied on the representations and warranties made in
or pursuant to the Participation Agreement and the other documents referred to
therein, the accuracy of which we have not independently verified. In
addition, we have, when relevant facts were not independently established by
us, relied, to the extent we deemed such reliance proper, upon certificates of
public officials and certificates, telegrams and other written or telephoned
statements of officers of the parties referred to herein.
Based on the foregoing, it is our opinion that:
1. With respect to that portion, if any, of the Aircraft
and the other property included in the Lessor's Estate as may not be
covered by the recording system established by the FAA pursuant to Section
44107 of the Transportation Code, no filing or recording of any document or
other action was or is necessary in order to establish the Owner Trustee's
title thereto and interest therein as against Federal Express and any third
parties.
2. Subject to execution and delivery of the Lease
Supplement and the Indenture and Security Agreement Supplement for the
Aircraft and to the registration of the Aircraft with the FAA in the name
of the Owner Trustee, the Lease, as supplemented, will create a valid
leasehold interest in the Aircraft, the entitlement thereof to the benefits
of recordation under the Transportation Code being subject to the due and
timely filing and, where appropriate, recording of (A) AVSA's FAA Bill of
Sale, (B) the Trust Agreement, (C) the Lease (with the Lease Supplement
covering the Aircraft, the Indenture and the Indenture and Security
Agreement Supplement covering the Aircraft attached as exhibits) and (D)
the Indenture (with the Indenture and Security Agreement Supplement
covering the Aircraft attached as an exhibit), pursuant to the
Transportation Code, and assuming that at the time of such filing no other
documents relating to the Aircraft have been filed pursuant to the
Transportation Code.
3. Assuming (i) the due authorization, execution and
delivery of the Transaction Agreements by each of the parties to each such
document (other than Federal Express), (ii) each such party has full power
and legal right to enter into and perform its respective obligations under
the Transaction Agreements, (iii) that the execution, delivery and
performance of each of the Transaction Agreements by each of the parties
thereto will not violate the respective parties' constituent documents,
(iv) the due authorization, execution, issuance and delivery by the Owner
Trustee, and the due authentication by the Indenture Trustee, of the
Certificates issued under the Indenture in accordance with the terms of the
Indenture, (v) the due authorization, execution, issuance, delivery and
authentication by the Pass Through Trustee of the Pass Through Certificates
issued under the Pass Through Agreement and the Series Supplement relating
to such Pass Through Certificates, in each case in accordance with the
terms of the Pass Through Agreement and such Series Supplement, and (vi)
that the form of each Transaction Agreement is in compliance with all
applicable laws and governmental rules and regulations (other than the laws
of the United States and the State of New York), then: (A) to the extent
governed by New York law, each Transaction Agreement in form constitutes a
legal, valid and binding agreement of each party thereto enforceable
against each such party in accordance with its terms; (B) the Indenture
creates, for the benefit of the Holders, the security interest in the Trust
Indenture Estate that it purports to create; (C) the Certificates are
legal, valid and binding obligations of the Owner Trustee enforceable
against the Owner Trustee in accordance with their terms and the terms of
the Indenture and are entitled to the benefits of the Indenture, including
the benefit of the security interest created thereby; and (D) the
beneficial interest of the Owner Participant under the Trust Agreement in
and to the properties which are part of the Trust Indenture Estate is
subject, to the extent provided in the Indenture, as supplemented by the
Indenture and Security Agreement Supplement, to the Lien of the Indenture
in favor of the Holders. The opinions set forth in this paragraph 3 are
subject to the due filing and recording, where appropriate, with the FAA of
the documents referred to in paragraph 2 above.
4. (a) Each of the Transaction Agreements to which Federal
Express is a party has been duly authorized, executed and delivered by Federal
Express.
(b) The execution, delivery and performance by Federal Express
of each of the Transaction Agreements to which Federal Express is a party do
not, or did not on the date of execution thereof, violate, and fully comply,
or did fully comply on the date of execution thereof, with, any laws and
governmental rules and regulations of the State of New York that may be
applicable to Federal Express. The opinion set forth in this paragraph 4(b)
is rendered without regard to the taking of any action or the conduct of any
other business by Federal Express in the State of New York other than the
transactions contemplated by the Transaction Agreements.
5. The execution, delivery and performance of the
Transaction Agreements (other than the Certificates) by the Owner Trustee
in its individual or trust capacity, as the case may be, and the issuance,
execution, delivery and performance of the Certificates by the Owner
Trustee in its trust capacity do not violate, and fully comply with, any
laws and governmental rules and regulations of the State of New York that
may be applicable to the Owner Trustee in its individual or trust capacity,
as the case may be. The opinion set forth in this paragraph 5 is rendered
without regard to the effect, if any, on such issuance (in the case of the
Certificates), execution, delivery or performance, of the taking of any
action, the conduct of any business or the exercise of any other powers by
State Street Bank and Trust Company of Connecticut, National Association in
its individual or trust capacity in the State of New York not related to
the transactions contemplated by the Transaction Agreements. We have
assumed that State Street Bank and Trust Company of Connecticut, National
Association has made the filings necessary to comply with Section 131.3 of
the Banking Law of the State of New York, however we express no opinion as
to whether State Street Bank and Trust Company of Connecticut, National
Association is required to comply with said Section 131.3.
6. All the properties which are part of the Trust Indenture
Estate (including all right, title and interest of the Owner Trustee pledged
and mortgaged by it pursuant to the Indenture in and to the Aircraft and the
Lease) have been pledged and mortgaged with the Indenture Trustee as part of
the Trust Indenture Estate (subject to the due filing and, where appropriate,
recording of those documents referred to in paragraph 2 above and the
financing statement referred to in Section 4.02(f) of the Participation
Agreement), and the beneficial interest of the Owner Participant under the
Trust Agreement in and to such properties are subject, to the extent provided
in the Indenture, to the Lien of the Indenture in favor of the Holders of the
Certificates issued and to be issued under the Indenture.
7. The Indenture and Security Agreement Supplement, pursuant
to the Granting Clause of the Indenture, creates, as security for the
Certificates duly issued and to be issued under the Indenture, the first
priority security interest in the Aircraft it purports to create, the
perfection and rank thereof being subject to the registration with the FAA of
the Aircraft in the name of the Owner Trustee and the due filing and, where
appropriate, recording in accordance with the Transportation Code of the
documents referred to in paragraph 2 above. We express no opinion with
respect to the status of any security interest in any portion of the Aircraft
which does not constitute an "aircraft" or "aircraft engine", as defined in
paragraphs (6) and (7) of Section 40102(a) of the Transportation Code.
8. Except for (i) the filings and recordings referred to in
paragraph 2 above, (ii) the registration of the issuance and sale of the
Pass Through Certificates under the Securities Act and (iii) compliance
with the securities laws of each applicable state, neither the execution
and delivery by Federal Express of the Participation Agreement or any other
Operative Agreement to which it is a party, nor the consummation of any of
the transactions by Federal Express contemplated thereby, requires the
consent or approval of, the giving of notice to, or the registration with,
or the taking of any other action in respect of, the Department of
Transportation, the FAA, the Securities and Exchange Commission or any
other Federal or New York State governmental authority.
9. It is not necessary, in connection with the creation of
the beneficial interest of the Owner Participant in the Trust Indenture Estate
under the circumstances contemplated by the Participation Agreement to
register such beneficial interest under the Securities Act of 1933, as
amended, or to qualify the Trust Agreement under the Trust Indenture Act of
1939, as amended.
10. The provisions of Section 1110 of the United States
Bankruptcy Code will apply to the Aircraft for the benefit of the Lessor,
as lessor under and by reason of the Lease. The Lease, including the
rights under Section 1110 of the United States Bankruptcy Code, has been
assigned to the Indenture Trustee pursuant to the Indenture as part of the
collateral for the Certificates and, as assignee, the Indenture Trustee has
the benefit of Section 1110.
The foregoing opinions are subject to the following
qualifications:
(a) We have relied, with your consent, without independent
investigation and verification and subject to the assumptions and
qualifications contained therein, upon the opinions of Daugherty,
Fowler & Peregrin and George W. Hearn, Vice President - Law of
Federal Express to be delivered to you and dated the date hereof, for
purposes of the matters covered thereby.
(b) We are qualified to practice law in the State of New York,
and we do not purport to be experts on, or to express any opinion
herein concerning, any laws other than the laws of the State of New
York, the laws of the United States and the General Corporation Law
of the State of Delaware. We express no opinion as to any matters
involving aviation law.
(c) The opinion contained in paragraph 3(A) above as to
enforceability is subject to (i) applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement
of creditors' rights generally and (ii) general principles of equity
which may affect the remedies provided in the agreements referred to
in said opinions, which laws and principles, however, do not in our
opinion make the remedies provided in said agreements inadequate for
the practical realization of the benefits of the security intended to
be provided thereby.
(d) This opinion is rendered solely to you at Federal
Express's request in connection with the above matter. This
opinion may not be relied upon by you for any other purpose or
relied upon by any other Person without our prior written consent.
Very truly yours,
Davis Polk & Wardwell
SCHEDULE A
Lessee
Federal Express Corporation
2007 Corporate Avenue
Memphis, Tennessee 38132
Owner Trustee
State Street Bank and Trust Company
of Connecticut, National Association
Two International Place
4th Floor
Boston, Massachusetts 02110
Indenture Trustee, Pass Through Trustee & Subordination Agent
First Security Bank, National Association
79 South Main Street
Salt Lake City, Utah 84111
Owner Participant
PMCC Leasing Corporation
200 First Stamford Place
Stamford, Connecticut 06902
Underwriters
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
First Chicago Capital Markets, Inc.
Corporate Securities
One First National Plaza
Chicago, Illinois 60670
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
J.P. Morgan & Co.
60 Wall Street
New York, New York 10260
Liquidity Provider
Kredietbank N.V., New York Branch
125 West 55th Street
New York, New York 10019
EXHIBIT A(2)(a)
[Letterhead of Simpson Thacher & Bartlett]
[Certificate Closing Date]
To Each of the Parties named on Schedule A Hereto
Re: Federal Express Corporation Trust No. N671FE
Ladies and Gentlemen:
We have acted as special New York counsel for (i) PMCC Leasing
Corporation ("PMCC") in connection with the transactions contemplated by the
Participation Agreement (Federal Express Corporation Trust No. N671FE), dated
as of May 1, 1997 (the "Participation Agreement"), among Federal Express
Corporation, as lessee, State Street Bank and Trust Company of Connecticut,
National Association, not in its individual capacity, except as otherwise
stated, but solely as owner trustee, PMCC, as owner participant, and First
Security Bank, National Association, not in its individual capacity, except as
otherwise stated, but solely as indenture trustee, pass through trustee and
subordination agent, and (ii) Philip Morris Capital Corporation ("Philip
Morris") in connection with the transactions contemplated by the Owner
Participant Guaranty (the "Guaranty"), dated as of May 1, 1997 from Philip
Morris to each of the beneficiaries named therein. This opinion is being
furnished to you pursuant to Section 4.01(k)(ii) of the Participation
Agreement. Capitalized terms used herein and not otherwise defined herein
shall have the meanings ascribed to them in the Participation Agreement.
We have examined executed counterparts of the Participation
Agreement, the Trust Agreement, the Tax Indemnity Agreement, the Ancillary
Agreement I and the Ancillary Agreement II (collectively, the "Owner
Participant Documents") and the Guaranty. We have made such other and further
investigations as we have deemed necessary or appropriate for purposes of this
opinion. In our examination we have assumed, with your permission, and
without independent investigation or inquiry, the genuineness of all
signatures, the authenticity of all documents submitted to us as originals and
the conformity to original documents of all documents submitted to us as
certified or photocopies and the authenticity of the originals of such latter
documents.
With your permission, we have further assumed that (i) the
Owner Participant Documents and the Guaranty have been duly authorized,
executed and delivered by each of the parties thereto, (ii) the respective
parties thereto have the power and authority to execute, deliver and
perform the Owner Participant Documents and the Guaranty, (iii) the
execution, delivery and performance of the Owner Participant Documents and
the Guaranty by the parties thereto do not and will not violate the
certificate of incorporation, by-laws or other organizations documents of
any such party or any bond, debenture, note, mortgage, indenture, lease or
other agreement or instrument to which any such party is a party or by
which any such party is bound and does and will fully comply with all laws
an regulations applicable to each such party and (iv) the Owner Participant
Documents constitute valid, legal and binding obligations of the parties
thereto (other than PMCC), enforceable against such parties (other than
PMCC) in accordance with their respective terms.
Based upon the foregoing, we are of the opinion that:
1. The Participation Agreement and the Tax Indemnity Agreement
constitute valid and legally binding obligations of PMCC enforceable against
PMCC in accordance with their respective terms.
2. The Guaranty constitutes a valid and legally binding obligation
of Philip Morris enforceable against Philip Morris in accordance with its
terms.
3. The execution, delivery and performance by PMCC of the Owner
Participant Documents will not result in any violation of any Federal or New
York statute or any order, rule or regulation issued pursuant to any New York
or Federal statute by any New York or Federal Court or governmental agency or
body having jurisdiction over PMCC.
4. The execution, delivery and performance by Philip Morris of
the Guaranty will not result in any violation of any Federal or New York
statute or any order, rule or regulation issued pursuant to any New York or
Federal statute by any New York or Federal Court or governmental agency or
body having jurisdiction over Philip Morris.
5. No consent, approval, authorization, order, registration,
filing or qualification under any Federal or New York statute is required to
be obtained by PMCC for the execution, delivery and performance by PMCC of the
Owner Participant Documents.
6. No consent, approval, authorization, order, registration,
filing or qualification under any Federal or New York statute is required to
be obtained by Philip Morris for the execution, delivery and performance by
Philip Morris of the Guaranty.
Our opinions in paragraphs 1 and 2 are subject to the
effects of bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws relating to or affecting creditors'
rights generally, general equitable principles (whether considered in a
proceeding in equity or at law) and an implied covenant of good faith and
fair dealing.
We are members of the Bar of the State of New York and express
no opinion herein concerning any law other than the laws of the State of New
York.
This opinion is rendered to you in connection with the
above-described transaction. This opinion may not be relied by you for any
other purpose, or relied upon by or furnished to any other person, firm or
corporation without our prior written consent, except that the Owner
Participant may furnish a copy of this opinion to a potential transferee or
participant of the interest of such entity or otherwise as required by a
governmental authority.
Very truly yours,
Simpson Thacher & Bartlett
SCHEDULE A
Lessee
Federal Express Corporation
2007 Corporate Avenue
Memphis, Tennessee 38132
Owner Trustee
State Street Bank and Trust Company
of Connecticut, National Association
Two International Place
4th Floor
Boston, Massachusetts 02110
Indenture Trustee, Pass Through Trustee & Subordination Agent
First Security Bank, National Association
79 South Main Street
Salt Lake City, Utah 84111
Owner Participant
PMCC Leasing Corporation
200 First Stamford Place
Stamford, Connecticut 06902
Underwriters
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
First Chicago Capital Markets, Inc.
Corporate Securities
One First National Plaza
Chicago, Illinois 60670
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
J.P. Morgan & Co.
60 Wall Street
New York, New York 10260
Liquidity Provider
Kredietbank N.V., New York Branch
125 West 55th Street
New York, New York 10019
EXHIBIT A(2)(b)
[Letterhead of Philip Morris Capital Corporation]
[Certificate Closing Date]
To Each of the Parties named on Schedule A Hereto
Re: Federal Express Corporation Trust No. N671FE
Ladies and Gentlemen:
In my capacity as Assistant General Counsel and Assistant
Secretary of Philip Morris Capital Corporation, a Delaware corporation, I have
supervised corporate proceedings of (i) PMCC Leasing Corporation, a Delaware
corporation (the "Owner Participant"), in connection with the Owner
Participant's participation in the transactions contemplated by that certain
Participation Agreement (Federal Express Corporation Trust No. N671FE), dated
as of May 1, 1997 (the "Participation Agreement"), among the Owner
Participant, Federal Express Corporation, as Lessee; State Street Bank and
Trust Company of Connecticut, National Association, except as otherwise
stated, not in its individual capacity but solely as Owner Trustee; and First
Security Bank, National Association not in its individual capacity, except as
otherwise stated, but solely as Indenture Trustee, Pass Through Trustee and
Subordination Agent, and (ii) Philip Morris Capital Corporation, a Delaware
corporation (the "Guarantor"), in connection with the transactions
contemplated by the Owner Participant Guaranty (the "Guaranty"), dated as of
May 1, 1997 from Philip Morris to each of the beneficiaries named therein.
This opinion is delivered pursuant to Section 4.01(k)(ii) of the Participation
Agreement. Capitalized terms used herein but not otherwise defined herein,
shall have the respective meanings set forth in the Participation Agreement.
In connection with this opinion, I have examined originals,
or copies certified or otherwise identified to my satisfaction of the
Participation Agreement, the Trust Agreement, the Tax Indemnity Agreement,
the Ancillary Agreement I and the Ancillary Agreement II (each such
document to be hereafter referred to individually as an "Owner Participant
Document" and collectively as the "Owner Participant Documents") and the
Guaranty. I have also examined such corporate documents, records and
instruments of the Owner Participant and the Guarantor as in my judgement
are necessary or appropriate to enable me to render the opinions expressed
below. In rendering such opinions, I have relied upon the representations
and warranties contained in or made pursuant to the Owner Participant
Documents and the Guaranty and have assumed the due authorization,
execution and delivery of all documents and instruments by all parties
thereto other than the Owner Participant.
Based on the foregoing and subject to the qualifications and
matters of reliance set forth herein, I am of the opinion that:
1. The Owner Participant is a corporation duly organized,
validly existing and in good standing under the laws of the State of
Delaware, has full corporate power, authority and legal right to
carry on its business as now conducted, and is duly authorized and
empowered to execute and deliver the Owner Participant Documents and
to fulfill and comply with the terms, conditions and other provisions
thereof.
2. The Guarantor is a corporation duly organized, validly
existing and in good standing under the laws of the State of
Delaware, has full corporate power, authority and legal right to
carry on its business as now conducted, and is duly authorized and
empowered to execute and deliver the Guaranty and to fulfill and
comply with the terms, conditions and other provisions thereof.
3. The Owner Participant Documents have been duly authorized
by all necessary corporate action on the part of the Owner
Participant, and have been duly executed and delivered by the Owner
Participant.
4. The Guaranty has been duly authorized by all necessary
corporate action on the part of the Guarantor, and has been duly
executed and delivered by the Guarantor.
5. No filing with, notice to, or authorization or approval
from any governmental or public body or authority is required under
the laws of the State of New York, the laws of the United States of
America, or the General Corporation Law of the State of Delaware in
connection with the execution, delivery and performance by the Owner
Participant of the Owner Participant Documents.
6. No filing with, notice to, or authorization or approval
from any governmental or public body or authority is required under
the laws of the State of New York, the laws of the United States of
America, or the General Corporation Law of the State of Delaware in
connection with the execution, delivery and performance by the
Guarantor of the Guaranty.
7. There are no actions, suits or proceedings (whether or not
purportedly on behalf of the Owner Participant) pending or, to my
knowledge, threatened against or affecting the Owner Participant or
any property rights of the Owner Participant at law or in equity or
before any commission or other administrative agency which, either
individually or in the aggregate, could materially and adversely
affect the condition, financial or otherwise, of the Owner
Participant or its ability to perform its obligations under the Owner
Participant Documents or which would affect the legality, validity or
enforceability of such Owner Participant Documents.
8. There are no actions, suits or proceedings (whether or
not purportedly on behalf of the Guarantor) pending or, to my
knowledge, threatened against or affecting the Guarantor or any
property rights of the Guarantor at law or in equity or before any
commission or other administrative agency which, either
individually or in the aggregate, could materially and adversely
affect the condition, financial or otherwise, of the Guarantor or
its ability to perform its obligations under the Guaranty or which
would affect the legality, validity or enforceability of such
Guaranty.
9. Neither the execution and delivery of the Owner Participant
Documents, the consummation of the transactions therein contemplated
nor the fulfillment of or compliance with the terms, conditions and
other provisions thereof will conflict with, or result in any breach
of, any of the terms, conditions or provisions of (i) any law or
regulation binding upon the Owner Participant, (ii) any order,
injunction or decree of any court or governmental instrumentality
binding upon the Owner Participant, (iii) the Certificate of
Incorporation or Bylaws of the Owner Participant, or (iv) any bond,
debenture, note, mortgage indenture or other agreement or instrument
to which the Owner Participant is now a party or by which the
property of the Owner Participant may be bound.
10. Neither the execution and delivery of the Guaranty, the
consummation of the transactions therein contemplated nor the
fulfillment of or compliance with the terms, conditions and other
provisions thereof will conflict with, or result in any breach of,
any of the terms, conditions or provisions of (i) any law or
regulation binding upon the Guarantor, (ii) any order, injunction or
decree of any court or governmental instrumentality binding upon the
Guarantor, (iii) the Certificate of Incorporation or Bylaws of the
Guarantor, or (iv) any bond, debenture, note, mortgage indenture or
other agreement or instrument to which the Guarantor is now a party
or by which the property of the Guarantor may be bound.
I am a member of the bar of the State of New York, and I do
not purport to be conversant with, or to express any opinion herein
concerning, the laws of any jurisdiction other than those of the State of
New York and the United States of America and the General Corporation Law
of the State of Delaware. In addition, I express no opinion concerning the
laws of the State of New York, the United States of America or any other
jurisdiction applicable to the offering or sale of securities. Further, I
have made no investigation and express no opinion, as to any aviation law
or other laws, statutes, rules or regulations applicable due to the
particular nature of the equipment subject to the Lease.
This opinion is solely for the benefit of the addresses hereof
and their respective successors and assigns for use in connection with the
transactions contemplated by the Owner Participant Documents and may not be
relied upon by any other person or for any other purpose without my express
written consent. This opinion may be relied upon by Messrs. Simpson, Thacher
& Bartlett in rendering their opinion of even date herewith.
Very truly yours,
Nancy S. Rights
SCHEDULE A
Lessee
Federal Express Corporation
2007 Corporate Avenue
Memphis, Tennessee 38132
Owner Trustee
State Street Bank and Trust Company
of Connecticut, National Association
Two International Place
4th Floor
Boston, Massachusetts 02110
Indenture Trustee, Pass Through Trustee & Subordination Agent
First Security Bank, National Association
79 South Main Street
Salt Lake City, Utah 84111
Underwriters
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
First Chicago Capital Markets, Inc.
Corporate Securities
One First National Plaza
Chicago, Illinois 60670
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
J.P. Morgan & Co.
60 Wall Street
New York, New York 10260
Liquidity Provider
Kredietbank N.V., New York Branch
125 West 55th Street
New York, New York 10019
EXHIBIT A(3)
[Letterhead of Ray, Quinney & Nebeker]
[Certificate Closing Date]
To the Persons Listed in Schedule A Attached Hereto
Re: Federal Express Corporation Trust No. N671FE
Ladies and Gentlemen:
We have acted as special counsel to First Security Bank,
National Association, a national banking association ("First Security"), in
connection with the Participation Agreement (Federal Express Corporation
Trust No. N671FE), dated as of May 1, 1997 (the "Participation
Agreement"), among Federal Express Corporation, as Lessee, PMCC Leasing
Corporation, as Owner Participant, State Street Bank and Trust Company of
Connecticut, National Association, not in its individual capacity, except
as otherwise stated, but solely as Owner Trustee, and First Security, not
in its individual capacity, except as otherwise stated, but solely as
Indenture Trustee, Pass Through Trustee and Subordination Agent. Pursuant
to the Participation Agreement, one Airbus A300F4-605R aircraft bearing
U.S. Registration No. N671FE (the "Aircraft") is being financed. This
opinion is furnished pursuant to Section 4.01(k)(iv) of the Participation
Agreement. Capitalized terms used herein and not otherwise defined are
used as defined in the Participation Agreement, except that references
herein to any instrument shall mean such instrument as in effect on the
date hereof.
We have examined executed counterparts or copies otherwise
identified to our satisfaction of the following documents:
(a) The Participation Agreement;
(b) The Indenture;
(c) The Ancillary Agreement I;
(d) The Ancillary Agreement II:
(e) The Collateral Account Control Agreement;
(f) The Certificates; and
(g) The French Pledge Agreement;
(each of the documents identified in paragraphs (a) through (g) above are
collectively referred to as the "Indenture Trustee Documents").
We have also examined originals or copies of such other
documents, such corporate records, certificates and other statements of
governmental officials and corporate officers and other representatives of the
corporations or entities referred to herein and such other instruments as we
have deemed necessary or appropriate for the purposes of this opinion.
Moreover, as to certain facts material to the opinions expressed herein, we
have relied upon representations and warranties contained in the Indenture
Trustee Documents.
Based upon the foregoing and upon an examination of such
questions of law as we have considered necessary or appropriate, and subject
to the assumptions, exceptions and qualifications set forth below, we advise
you that, in our opinion:
1. First Security is a national banking association duly
organized and validly existing under the laws of the United States of
America holding a valid certificate to do business as a national
banking association, with banking and trust powers, and each of First
Security and the Indenture Trustee, as the case may be, has or had,
on the date of execution thereof, full corporate power, authority and
legal right to execute, deliver and perform each of the Indenture
Trustee Documents to which it is or is to be a party and to
authenticate the Certificates delivered on the Certificate Closing
Date.
2. Each of First Security and the Indenture Trustee, as the
case may be, has duly authorized, executed and delivered each
Indenture Trustee Document to which it is a party; each such document
constitutes a legal, valid and binding obligation of the Indenture
Trustee (and, to the extent set forth in the respective Indenture
Trustee Document, of First Security) enforceable against the
Indenture Trustee (and, to the extent set forth in the respective
Indenture Trustee Document, against First Security) in accordance
with its terms.
3. The Certificates issued and dated the Certificate Closing
Date have been duly authenticated and delivered by the Indenture
Trustee pursuant to the terms of the Indenture.
4. Neither the authorization, execution and delivery by the
Indenture Trustee or First Security, as the case may be, of the
Indenture Trustee Documents, nor the authentication and delivery by
the Indenture Trustee of the Certificates nor the fulfillment or
compliance by the Indenture Trustee or First Security with the
respective terms and provisions thereof nor the consummation of any
of the transactions by the Indenture Trustee or First Security, as
the case may be, contemplated thereby, requires the consent or
approval of, the giving of notice to, the registration with, or the
taking of any other action in respect of, any court or administrative
or governmental authority or agency of the State of Utah or the
United States of America governing the banking or trust powers of
First Security.
5. The execution, delivery and performance by the Indenture
Trustee or First Security, as the case may be, of each of the
Indenture Trustee Documents and the authentication and delivery of
the Certificates by the Indenture Trustee are not in violation of the
charter or by-laws of First Security or of any law, governmental
rule, or regulation of the State of Utah or the United States of
America governing the banking or trust powers of First Security or,
to our knowledge, of any indenture, mortgage, bank credit agreement,
note or bond purchase agreement, long-term lease, license or other
agreement or instrument to which it is a party or by which it is
bound or, to our knowledge, of any judgment or order of the State of
Utah or the United States of America relating to the banking or trust
powers of First Security.
6. There are no fees, taxes or other governmental charges
payable by the Owner Trustee, the Indenture Trustee (except taxes
imposed on fees payable to First Security) or the Certificate Holders
to the State of Utah or any political subdivision thereof in
connection with the execution, delivery or performance of any of the
Operative Agreements or in connection with the issuance and
acquisition of the Certificates by the Certificate Holders or the
beneficial interests of the Certificate Holders in the Trust
Indenture Estate solely because First Security) (a) is incorporated
under the laws of the State of Utah, (b) has its principal place of
business in the State of Utah, (c) performs (in its individual
capacity or as Indenture Trustee) any or all of its duties under the
Indenture Trustee Documents in the State of Utah, and (d) engages in
any activities unrelated to the transactions contemplated by the
Indenture Trustee Documents in the State of Utah. Neither the
Indenture Trustee nor the trust created under the Indenture will be
subject to any fee, tax or other governmental charge (except for
taxes imposed on fees payable to First Security) under the laws of
the State of Utah or any political subdivision thereof in existence
on the date hereof, on, based on or measured by, directly or
indirectly, the gross receipts, net income or value of the Trust
Indenture Estate solely because First Security (a) is incorporated
under the laws of the State of Utah, (b) has its principal place of
business in the State of Utah, (c) performs (in its individual
capacity or as Indenture Trustee) any or all of its duties under the
Indenture Trustee Documents in the State of Utah, and (d) engages in
any activities unrelated to the transactions contemplated by the
Indenture Trustee Documents in the State of Utah. There is no fee,
tax or other governmental charge (except for taxes imposed on fees
payable to First Security) under the laws of the State of Utah or any
political subdivision thereof in existence on the date hereof, on,
based on or measured by any payments under the Certificates by reason
of the creation of the trust under the Indenture solely because First
Security (a) is incorporated under the laws of the State of Utah, (b)
has its principal place of business in the State of Utah, (c)
performs (in its individual capacity or as Indenture Trustee) any or
all of its duties under the Indenture Trustee Documents in the State
of Utah, and (d) engages in any activities unrelated to the
transactions contemplated by the Indenture Trustee Documents in the
State of Utah. We express no opinion as to whether or not any fees,
taxes or other charges are now or hereafter may be payable by the
Owner Participant to the State of Utah or any political subdivision
thereof in connection with (a) the execution, delivery or performance
by any of the Indenture, the Participation Agreement or any of the
other Operative Agreements and (b) the making by the Owner
Participant of its investment in the Aircraft.
7. There are no actions, suits, investigations or proceedings
pending or, to our knowledge, threatened against or affecting First
Security or the Indenture Trustee, as the case may be, or any of its
properties in any court or before any administrative agency or
arbitrator, which, if adversely determined, would materially
adversely affect the ability of First Security or the Indenture
Trustee, as the case may be, to perform its obligations under any of
the Indenture Trustee Documents, and there are no pending or, to our
knowledge, threatened actions or proceedings before any court,
administrative agency or tribunal involving First Security or the
Indenture Trustee, as the case may be, in connection with the
transactions contemplated by any of the Indenture Trustee Documents.
The foregoing opinions are subject to the following
assumptions, exceptions and qualifications:
A. We are admitted to practice law in the State of Utah and we
do not hold ourselves out as being experts on the laws of any other
jurisdiction. The foregoing opinions are limited to the laws of the State of
Utah, the federal laws of the United States of America governing the banking
and trust powers of First Security and Title II of the United States Code
entitled "Bankruptcy". However, we express no opinion with respect to (i)
federal securities laws, including the Securities Act of 1933, as amended, the
Securities Exchange Act of 1934, as amended, and the Trust Indenture Act of
1939, as amended, (ii) the Federal Aviation Act of 1958, as amended and (iii)
state securities or blue sky laws. Insofar as the foregoing opinions relate
to the validity and enforceability in the State of Utah of the Certificates
and the other Indenture Trustee Documents expressed to be governed by the laws
of the State of New York, we have assumed that the laws of New York are
identical to the laws of Utah in all material respects, and that the
Certificates and such Indenture Trustee Documents constitute legal, valid,
binding and enforceable documents or instruments under such laws (as to which
we express no opinion). No opinion is expressed as to the priority of any
security interest or as to title to any part of the Trust Estate.
B. The foregoing opinions regarding enforceability of any
document or instrument, are subject to (i) applicable bankruptcy, insolvency,
moratorium, reorganization, receivership and similar laws affecting the rights
and remedies of creditors generally, and (ii) general principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or at law).
C. We have assumed the due authorization, execution and
delivery by each of the parties thereto, other than First Security and the
Indenture Trustee, of the Indenture Trustee Documents to which each is a party
and that each of such parties has the full power, authority and legal right to
execute and deliver each such document.
D. We have assumed that all signatures (other than those of
the Indenture Trustee or First Security) on documents and instruments
examined by us are genuine, that all documents and instruments submitted to
us as originals are authentic, and that all documents and instruments
submitted to us as copies conform with the originals, which facts we have
not independently verified.
E. We have assumed that the Participation Agreement and the
transactions contemplated thereby are not within the prohibitions of Section
406 of the Employee Retirement Income Security Act of 1974.
This opinion is rendered solely for your benefit and may not be
relied upon by any other person or entity for any purpose without our prior
written consent.
Very truly yours,
Ray, Quinney & Nebeker
SCHEDULE A
Lessee
Federal Express Corporation
2007 Corporate Avenue
Memphis, Tennessee 38132
Owner Trustee
State Street Bank and Trust Company
of Connecticut, National Association
Two International Place
4th Floor
Boston, Massachusetts 02110
Indenture Trustee, Pass Through Trustee & Subordination Agent
First Security Bank, National Association
79 South Main Street
Salt Lake City, Utah 84111
Owner Participant
PMCC Leasing Corporation
200 First Stamford Place
Stamford, Connecticut 06902
Underwriters
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
First Chicago Capital Markets, Inc.
Corporate Securities
One First National Plaza
Chicago, Illinois 60670
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
J.P. Morgan & Co.
60 Wall Street
New York, New York 10260
Liquidity Provider
Kredietbank N.V., New York Branch
125 West 55th Street
New York, New York 10019
EXHIBIT A(4)(a)(i)
[Letterhead of Bingham, Dana & Gould]
[Certificate Closing Date]
To Each of the Parties Listed on Schedule A Hereto
Re: Federal Express Corporation Trust No. N671FE
Ladies and Gentlemen:
We have acted as counsel to State Street Bank and Trust
Company of Connecticut, National Association, a national banking
association in its individual capacity ("State Street") and its capacity as
Owner Trustee (the "Owner Trustee") under the Trust Agreement (Federal
Express Corporation Trust No. N671FE) dated as of May 1, 1997 between
State Street and PMCC Leasing Corporation, as Owner Participant ("Owner
Participant") (the "Trust Agreement") in connection with the transactions
contemplated by that certain Participation Agreement (Federal Express
Corporation Trust No. N671FE) dated as of May 1, 1997 (the "Participation
Agreement") by and among Federal Express Corporation (the "Lessee"); the
Owner Participant; and First Security Bank, National Association, in its
individual capacity and as Indenture Trustee (the "Indenture Trustee"),
Pass Through Trustee and Subordination Agent. Except as otherwise defined
herein, all capitalized terms used herein shall have the respective
meanings set forth in, or by reference to, the Participation Agreement.
The Owner Trustee has requested that we deliver this opinion to
you in accordance with Section 4.01 of the Participation Agreement.
Our representation of State Street has been as special counsel
for the purposes stated above. As to all matters of fact (including factual
conclusions and characterizations and descriptions of purpose, intention or
other state of mind), we have relied entirely upon (i) the representations of
the parties set forth in the Operative Agreements and (ii) certificates
delivered to us by the management of State Street and have assumed, without
independent inquiry, the accuracy of those representations and certificates.
We have examined each of the Operative Agreements to which
State Street or the Owner Trustee, as applicable is a party (the "Owner
Trustee Documents"), the Certificate of the Comptroller of the Currency
relating to State Street and originals, or copies certified or otherwise
identified to our satisfaction, of such other corporate records, documents,
certificates and other instruments as we have deemed necessary or advisable
for the purposes of rendering this opinion.
We have assumed the genuineness of all signatures (other than
those on behalf of State Street and the Owner Trustee), the conformity to the
originals of all documents reviewed by us as copies, the authenticity and
completeness of all original documents reviewed by us in original or copy form
and the legal competence of each individual executing any document (other than
on behalf of State Street and the Owner Trustee).
When an opinion set forth below is given to the best of our
knowledge, or to our knowledge, or with reference to matters of which we are
aware or which are known to us, or with another similar qualification, the
relevant knowledge or awareness is limited to the actual knowledge or
awareness of the individual lawyer in the firm that signed this opinion, the
individual lawyers in the firm who have participated directly in the specific
transactions to which this opinion relates or in the preparation of this
opinion and the partner of the firm responsible for State Street corporate
trust matters, and without any special or additional investigation undertaken
for the purposes of this opinion.
Each opinion set forth below relating to the enforceability of
any agreement or instrument against State Street, the Owner Trustee or the
Owner Participant, as applicable, is subject to the following general
qualifications:
(i) as to any agreement to which State Street or the
Owner Trustee, as applicable, is a party, we assume that such
agreement is the legal, valid and binding obligation or each other
party thereto;
(ii) except as otherwise set forth in our opinions 13
and 14 below, the enforceability of any obligation of State
Street, the Owner Trustee and the Owner Participant, may be
limited by bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium, marshaling, or other similar laws and
rules of law affecting the enforcement generally of creditors'
rights and remedies (including such as may deny giving effect to
waivers of debtors' or guarantors' rights);
(iii) no opinion is given herein as to the enforceability
of any particular provision of any of the Owner Trustee Documents
relating to remedies after default or as to the availability of any
specific or equitable relief of any kind. However, we are of the
opinion that, subject to the other limitations and qualifications
contained in this opinion, the remedies provided in the Owner Trustee
Documents, taken as a whole, are adequate for the realization of the
principal benefits or security of said agreements (except for the
economic consequences of procedural or other delay); and
(iv) the enforcement of any rights and the availability
of any specific or equitable relief of any kind may in all cases be
subject to an implied duty of good faith and to general principles of
equity (regardless of whether such enforceability or relief is
considered in a proceeding at law or in equity) and, as to any of
your rights to collateral security, will be subject to a duty to act
in a commercially reasonable manner.
Subject to the limitations set forth herein, we have made
such examination of law as we have deemed necessary for the purposes of
this opinion. The opinions expressed herein are limited solely to the
internal substantive laws of the State of Connecticut and the Federal laws
of the United States of America. No opinion is expressed herein as to the
application or effect of federal securities laws or as to the securities or
so-called "Blue Sky" laws of any state or other jurisdiction. In addition,
no opinion is expressed as to matters governed by the Transportation Code,
or by any other law, statute, rule or regulation of the United States
relating to the acquisition, ownership, registration, use, operation,
maintenance, repair, replacement or sale of or the nature of the Aircraft,
Airframe or the Engines.
We have made no examination of, and no opinion is given herein
as to the Owner Trustee's or Owner Participant's title to or other ownership
rights in, or the existence of any liens, charges or encumbrances on, or
adverse claims against, any of the Indenture Estate. We express no opinion as
to the creation, attachment, perfection or priority of any mortgage, security
interest or lien in any of the Indenture Estate.
With your permission and without investigation, with respect to
paragraphs 2, 3 and 4 below in connection with our opinion relating to the
legality, validity, binding effect of the documents there referred to, to the
extent that the laws of the State of Connecticut do not govern such documents,
we have assumed that the laws of the jurisdictions whose laws govern such
documents are not materially different from the internal substantive laws of
the State of Connecticut.
In rendering our opinion in paragraphs 12 and 13 below, we have
assumed that the Owner Participant acquired its interest in the Trust Estate
for fair consideration and in good faith without any intention to hinder,
defraud or defraud or delay the Owner Participant's creditors.
This opinion is rendered solely for the benefit of those
institutions listed on Schedule A hereto and their respective successors and
assigns in connection with the transactions contemplated by the Operative
Agreements and may not be used or relied upon by any other person or for any
other purpose.
Based upon the foregoing, we are of the opinion that:
1. State Street is a national banking association duly
organized, validly existing and in good standing with the Comptroller
of the Currency under the laws of the United States of America, is a
"citizen of the United States" within the meaning of Section
40102(a)(15) of Title 49 of the United States Code, as amended and
has full corporate power, authority and legal right to execute,
deliver and perform its obligations under the Trust Agreement and, as
Owner Trustee under the Trust Agreement, to execute, deliver and
perform its obligations under the other Owner Trustee Agreements and
to issue, execute, deliver and perform its obligations under the
Certificate.
2. State Street has duly authorized, executed, and delivered
the Participation Agreement and the Trust Agreement and the
Participation Agreement and the Trust Agreement constitute the legal,
valid and binding obligation of State Street, enforceable against it
in its individual capacity in accordance with the terms thereof.
3. The Owner Trustee is duly authorized under the Trust
Agreement to execute, deliver and perform each of the Owner Trustee
Agreements and each such Owner Trustee Agreement constitutes a legal,
valid and binding obligation of the Owner Trustee enforceable against
the Owner Trustee in accordance with its terms. The Certificate has
been duly issued, executed and delivered by the Owner Trustee,
pursuant to authorization contained in the Trust Agreement, and
assuming due authentication thereof by the Indenture Trustee,
constitutes the legal, valid and binding obligation of the Owner
Trustee enforceable against the Owner Trustee in accordance with its
terms and the terms of the Indenture; and the Certificate is entitled
to the benefits and security afforded by the Indenture in accordance
with its terms and the terms of the Indenture.
4. Assuming the due authorization, execution and delivery of
the Trust Agreement by the Owner Participant and that the Owner
Participant has the requisite corporate power and authority to enter
into and perform its obligations under the Trust Agreement, said
Trust Agreement constitutes the legal, valid and binding obligation
of the Owner Participant, enforceable against the owner Participant
in accordance with the terms thereof.
5. The Trust Agreement duly creates a legal and valid trust
under Connecticut law; the trust created by the Trust Agreement
exists for the benefit of the Owner Participant as provided therein
and creates for the benefit of the Owner Participant the interest in
the Trust Estate which the Trust Agreement by its terms purports to
create, subject however to the provisions of, and the Liens created
by, the Indenture and the Lease.
6. To the extent that the Uniform Commercial Code of the State
of Connecticut (the "UCC") is applicable, except for the Indenture
Trustee's taking possession of all monies and securities (including
instruments) constituting part of the Trust Indenture Estate, no
action, including the filing or recording of any document, is
necessary (i) to create under the UCC the security interest in the
Trust Indenture Estate (including the grant and assignment unto the
Indenture Trustee of the security interest in all estate, right,
title and interest of the Owner Trustee in, to and under the Lease
and the Participation Agreement) which the Indenture by its terms
purports to create in favor of the Indenture Trustee, and (ii) to
perfect in the State of Connecticut such security interest, except
for the filing of a UCC financing statement complying with the formal
requisites of Section 9-402 of the UCC in the office of the Division
of Corporations and Commercial Code of the State of Connecticut with
respect to the security interest, which filing has been duly
effected, and the filing of continuation statements with respect
thereto required to be filed at periodic intervals under the UCC.
7. Neither the execution, delivery or performance by the Owner
Trustee, in its individual capacity or as Owner Trustee, as the case
may be, of the Certificates or the Owner Trustee Documents, the
consummation by the Owner Trustee, in its individual capacity or as
Owner Trustee, as the case may be, of any of the transactions
contemplated thereby nor the compliance by the Owner Trustee, in its
individual capacity or as Owner Trustee, as the case may be, with any
of the terms and provisions thereof (i) requires any approval of its
stockholders, any consent or approval of or the giving of notice to
any trustees or holders of any indebtedness or obligations of it
known to us, or (ii) violates its charter documents or by-laws, or
contravenes or will contravene any provision of, or constitutes a
default under, or results in any breach of, or results in the
creation of any Lien (other than as permitted under the Operative
Agreements) upon property under, any indenture, mortgage, chattel
mortgage, deed of trust, conditional sales contract, bank loan or
credit agreement, license or other agreement or instrument, in each
case, known to us to which it is a party or by which it is bound or
contravenes any Connecticut or United States applicable law governing
the banking or trust powers of the Owner Trustee, or any judgment or
order in each case, known to us applicable to or binding on it.
8. To our knowledge, there are no proceedings or actions
pending or threatened against or affecting the Owner Trustee, in its
individual capacity or as Owner Trustee, before any governmental
authority which, individually or in the aggregate, if adversely
determined, would materially and adversely affect the ability of the
Owner Trustee, in its individual capacity or as Owner Trustee, as the
case may be, to enter into or to perform its obligations under the
Owner Trustee Documents or the Certificate.
9. No consent, approval, order or authorization of, giving of
notice to, or registration with, or taking of any other action in
respect of, any Connecticut or United States governmental authority
regulating the banking or trust powers of the Owner Trustee, in its
individual capacity, is required for the execution and delivery of,
or the carrying out by, the Owner Trustee in its individual capacity
or as Owner Trustee, as the case may be, of any of the transactions
contemplated by the Owner Trustee Documents, other than any such
consent, approval, order, authorization, registration, notice or
action as has been duly obtained, given or taken.
10. There are no fees, taxes or other charges payable by the
Owner Trustee, the Trust Estate or the trust created by the Trust
Agreement imposed by the State of Connecticut or any political
subdivision or taxing authority thereof in connection with the
execution, delivery and performance by State Street, individually or
as Owner Trustee, of the Owner Trust Documents (other than franchise
or other taxes based on or measured by any fees or compensation
received by State Street, acting as the Owner Trustee, for services
rendered in connection with the transactions contemplated by the
Operative Agreements) and, assuming that the trust created by the
Trust Agreement will not be taxable as a corporation, but, rather,
will be characterized as a grantor trust under subpart E, Part I of
Subchapter J of the Internal Revenue Code of 1986, as amended, or
will be otherwise ignored for Federal tax purposes, (i) such trust
will not be subject to any fees, taxes or other charges imposed by
the State of Connecticut or any political subdivision thereof based
on income, receipts, value or otherwise, (ii) Holders that are not
residents of or otherwise subject to tax in Connecticut will not be
subject to any taxes imposed by the State of Connecticut or any
political subdivision thereof as a result of purchasing, holding
(including receiving payments with respect to) or selling a
Certificate and (iii) assuming the Owner Participant is not a
Connecticut resident or otherwise subject to tax in Connecticut and
further assuming that the assets of the trust created by the Trust
Agreement are not deemed to be located in Connecticut, the Owner
Participant will not be subject to any taxes imposed by the State of
Connecticut or any political subdivision thereof solely as a result
of being the beneficial owner of the trust created by the Trust
Agreement.
11. To our knowledge, there exist no liens or encumbrances
affecting the right, title and interest of the Owner Trustee in and
to the Trust Estate resulting from claims against State Street not
related to the ownership of the Trust Estate or any other transaction
contemplated by the Operative Agreements.
12. All the properties which are part of the Indenture Estate
(including all right, title and interest of the Owner Trustee pledged
and mortgaged by it pursuant to the Indenture) have been pledged and
mortgaged with the Indenture Trustee as part of the Indenture Estate,
and the beneficial interest of the Owner Participant under the Trust
Agreement in and to such properties is subject, to the extent
provided in the Indenture, to the liens of the Indenture in favor of
the holders from time to time of the Certificate.
13. Neither a Connecticut court nor a Federal court applying
federal law or Connecticut law, if properly presented with the issue
and after having properly considered such issue, would permit the
Owner Participant to terminate the Trust Agreement, except as
otherwise provided therein, until the Lien of the Indenture on the
Indenture Estate has been released and until payment in full of the
principal of, and premium, if any, and interest on, the Certificates
and all other sums due the holders of the Certificates has been made.
14. Under the laws of the State of Connecticut, as long as the
Trust Agreement has not been terminated in accordance with its terms,
creditors of any person that is an Owner Participant, holders of a
lien against the assets of any such person and representatives of
creditors of any such person, such as trustees, receivers or
liquidators (whether or not any insolvency proceeding has been
commenced) (collectively the "Creditors") may acquire legal, valid
and enforceable claims and liens, as to the Trust Estate, only
against the beneficial interest of such person in the Trust Estate,
and do not have, and may not through the enforcement of such
Creditors' rights acquire, any other legal, valid, and enforceable
claim or lien against the Trust Estate.
Very truly yours,
Bingham, Dana & Gould LLP
SCHEDULE A
Lessee
Federal Express Corporation
2007 Corporate Avenue
Memphis, Tennessee 38132
Owner Trustee
State Street Bank and Trust Company
of Connecticut, National Association
Two International Place
4th Floor
Boston, Massachusetts 02110
Indenture Trustee, Pass Through Trustee & Subordination Agent
First Security Bank, National Association
79 South Main Street
Salt Lake City, Utah 84111
Owner Participant
PMCC Leasing Corporation
200 First Stamford Place
Stamford, Connecticut 06902
Underwriters
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
First Chicago Capital Markets, Inc.
Corporate Securities
One First National Plaza
Chicago, Illinois 60670
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
+J.P. Morgan & Co.
60 Wall Street
New York, New York 10260
Liquidity Provider
Kredietbank N.V., New York Branch
125 West 55th Street
New York, New York 10019
[Letterhead of Bingham, Dana & Gould]
[Certificate Closing Date]
To Each of the Parties Listed on Schedule A Hereto
Re: Trust Indenture and Security Agreement (Federal Express
Corporation Trust No. N671FE) dated as of May 1, 1997 (the
"Indenture"), between First Security Bank, National Association
(the "Indenture Trustee"), and State Street Bank and Trust
Company of Connecticut, National Association, not in its
individual capacity, but solely as Owner Trustee (the "Owner
Trustee")
Ladies and Gentlemen:
We have acted as special Connecticut counsel to the Owner
Trustee in connection with the Indenture and the Collateral Account Control
Agreement dated as of May 1, 1997 (the "Control Agreement"), among the Owner
Trustee, the Indenture Trustee and State Street Bank and Trust Company, as
Custodian (the "Custodian").
We are issuing this opinion solely in our capacity as counsel
to the Owner Trustee under the circumstances set forth in this paragraph and
solely as to the matters set forth herein. Pursuant to the Indenture, the
Owner Trustee purports to grant to the Indenture Trustee a security interest,
inter alia, in those securities and instruments, presently owned or hereafter
acquired by the Owner Trustee, that are from time to time credited to an
account numbered [*****] (the "Collateral Account") established by the Owner
Trustee with the Custodian and which securities and instruments the Owner
Trustee has directed the Custodian to identify on the books and records of the
Custodian as being subject to a security interest in favor of the Indenture
Trustee to secure the payment to the Indenture Trustee of the Owner Trustee's
obligations (the "Obligations") under the Indenture. Those securities and
instruments which the Owner Trustee has directed the Custodian to so identify
on the books of the Custodian as being subject to such security interest, and
which, at the time of reference thereto, have not been withdrawn from such
identification or the Collateral Account, are hereinafter referred to,
collectively, as the "Liquid Collateral." We have assumed with your
permission for purposes of this opinion that the Liquid Collateral consists
solely of (a) "securities", either "uncertificated securities" or
"certificated securities", as each such term is defined in Section 8-102 of
the Uniform Commercial Code as currently in effect in the State of Connecticut
(the "Connecticut UCC"), (b) "instruments" (as such term is defined in Section
9-105(1)(i) of the Connecticut UCC) and (c) "general intangibles" (as such
term is defined in Section 9-106 of the Connecticut UCC).
For purposes of this opinion, we have examined the Indenture,
the Control Agreement and such other documents and instruments as are referred
to as having been examined by us for purposes of our opinion letter dated May
___,1997, addressed to the parties listed on Schedule A hereto.
As to all matters of fact, we have examined and have relied
entirely upon the representations and warranties contained in and made
pursuant to the Indenture and the Control Agreement, without any independent
investigation of any kind.
We have assumed the genuineness of all signatures (other
than those on behalf of the Owner Trustee and the Custodian), the
conformity to the originals of all documents reviewed by us as copies, the
authenticity and completeness of all original documents reviewed by us in
original or copy form, and the legal competence of each individual
executing any document (other than on behalf of the Owner Trustee and the
Custodian).
For purposes of this opinion, we have made such examination of
law as we have deemed necessary. This opinion is limited solely to the
internal substantive laws of the State of Connecticut as applied by courts
located in the State of Connecticut and, where applicable, (i) the revised
Article 8 of the Uniform Commercial Code (with Conforming and Miscellaneous
Amendments to Articles 1, 3, 4, 5, 9 and 10) 1994 Official Text (the "Revised
Article 8") and (ii) the federal laws of the United States of America, in each
case without regard to choice of law. No opinion is given as to the choice of
law which any tribunal may apply to the transactions referred to herein.
Our opinion is further subject to the following exceptions,
qualifications and assumptions, all of which we understand to be acceptable to
you:
(a) We have assumed without any independent investigation
that each party to the transactions contemplated by the Indenture or
the Control Agreement at all times relevant thereto (other than the
Owner Trustee) was duly organized, validly existing and in good
standing under the laws of the jurisdiction in which it was
incorporated or organized, and had and has the full power, authority
and legal right under its certificate of incorporation, articles of
organization and other governing documents, corporate or other
enterprise legislation and applicable laws, as the case may be, to
execute and deliver and perform its obligations under all documents
executed by it in connection with those transactions.
(b) We have assumed without any independent investigation
(i) the due authorization, execution and delivery of each of the
Indenture and the Control Agreement by the Indenture Trustee, (ii)
that the execution, delivery and performance by the Indenture
Trustee of each of the Indenture and the Control Agreement does
not and will not conflict with, or result in a breach of, the
terms, conditions or provisions of, or result in a violation of,
or constitute a default or require any consent (other than such
consents as have been duly obtained) under, any organizational
document, any order, judgment, arbitration award or stipulation,
or any agreement, to which the Indenture Trustee is a party or is
subject or by which any of the properties or assets of the
Indenture Trustee is bound, (iii) that the Owner Trustee has
received "value," as defined under the Connecticut UCC, for the
incurrence of the Obligations, (iv) that, whenever the Custodian
receives instructions from the Owner Trustee for the Custodian to
note on its books and records that any securities or instruments
credited to the Collateral Account are to be subject to a security
interest in favor of the Indenture Trustee to secure the payment
of the Obligations, such instructions will have been duly
authorized by or on behalf of the Owner Trustee and (v) that, when
the Indenture Trustee is to act in connection with any of the
transactions contemplated by the Indenture, it is acting in its
capacity as Indenture Trustee.
(c) We have made no examination of, and no opinion is given
herein as to, the Owner Trustee's title to or other ownership rights
in, or the existence of any liens, charges or encumbrances on, or
adverse claims against, the Liquid Collateral, other than the
security interest in favor of the Indenture Trustee as contemplated
by the Indenture and the Control Agreement, and have assumed that the
Owner Trustee has, or at the time of any purported attachment of the
security interest in the relevant Liquid Collateral will have, rights
in the Liquid Collateral.
(d) The perfection and the effect of perfection and
non-perfection of a security interest in the Liquid Collateral that
comprises "uncertificated securities" are, pursuant to Section
9-103(6) of the Connecticut UCC, and the effectiveness of
registration by the issuer and the rights and duties of the issuer
with respect to the registration of transfer, pledge or release of an
"uncertificated security" are, pursuant to Section 8-106 of the
Connecticut UCC, in each case, governed by the laws of the respective
jurisdictions of organization of the issuer or issuers of such
securities, including the conflict of laws rules of such
jurisdictions. Therefore, we express no opinion with respect to such
matters regarding "uncertificated securities" issued by issuers
organized outside of the State of Connecticut other than book-entry
Treasury securities referred to below.
(e) We point out that, pursuant to Part 357 of Title 31 of
the United States Code of Federal Regulations ("CFR"), with
respect to United States "book-entry Treasury securities"
maintained by a Federal Reserve Bank and, pursuant to other
relevant sections of the CFR, with respect to various other
securities issued or guaranteed by the federal government of the
United States or an agency thereof or a corporation sponsored
thereby and maintained by a Federal Reserve Bank, the perfection
of security interests granted by commercial, non-governmental
parties in book-entry Treasury securities, or such other federal
securities, as the case may be, held in a securities account of a
participant financial institution, such as the Custodian,
maintaining such account with such Federal Reserve Bank, will be
governed by the law of the jurisdiction determined in accordance
with Section 357.11 of Title 31 of the CFR. If that jurisdiction
has not adopted Revised Article 8, then such jurisdiction will be
deemed to have adopted Revised Article 8 for purposes of
determining the law governing such perfection. Accordingly,
although Revised Article 8 has not been enacted by Connecticut as
part of the Connecticut UCC, nevertheless, pursuant to Part 357 of
Title 31 of the CFR, Revised Article 8 governs the perfection of a
security interest in book-entry Treasury securities to the extent
that Connecticut law would otherwise be applicable thereto.
(f) We have also assumed that (i) any securities comprised in
the Liquid Collateral and held by Depository Trust Company or another
clearing corporation will be held by Depository Trust Company or such
other clearing corporation for the direct account of the Custodian
and not for the account of the Custodian through any other financial
intermediary, (ii) any securities comprised in the Liquid Collateral
and not constituting either (x) "certificated securities" (as defined
in Section 8-102 of the Connecticut UCC) for which the Custodian
physically holds the certificate or certificates evidencing solely
such securities, or (y) "uncertificated securities" (as defined in
Section 8-102 of the Connecticut UCC) for which the Custodian is the
registered owner on the books of the issuer solely of such
securities, will constitute, or will be held as part of, a fungible
bulk of such "securities" that are registered in the name of the
Custodian or are shown on the Custodian's account on the books of
another financial intermediary, (iii) any "certificated securities"
(as defined in Section 8-102 of the Connecticut UCC) comprised in the
Collateral, if held directly by the Custodian, will be at all times
in the physical possession of the Custodian, and any other
"instruments" (as defined in Section 9-105(1)(i) of the Connecticut
UCC) comprised in the Collateral will be at all times held directly
by and in the physical possession of the Custodian, and (iv) any
securities comprised in the Liquid Collateral consisting of
"book-entry Treasury securities" or other uncertificated federal
securities will be credited to a direct account of the Custodian with
a Reserve Bank (as such term is defined in the relevant section of
the CFR) and not for the account of the Custodian through a financial
intermediary.
(g) We do not express any opinion as to the attachment or
perfection of any security interest in (i) any securities that are
maintained with, or held on the system of, Cedel S.A., or any like
maintenance, clearing or settlement system operating outside of the
United States of America, (ii) any collateral of a type other than
"securities" or "general intangibles" (as defined in Section 9-106 of
the Connecticut UCC) or "instruments" (as defined in Section
9-105(1)(i) of the Connecticut UCC), (iii) the Collateral Account, to
the extent that the Collateral Account constitutes an asset, other
than general intangibles, separate from the property credited
thereto, (iv) any Liquid Collateral which, at the time of reference
thereto, is no longer identified as subject to a security interest
in favor of the Indenture Trustee or has otherwise been withdrawn from
the Collateral Account, or (v) any identifiable proceeds of any Liquid
Collateral (A) following the lapse of the ten day period set forth in
Section 9-306(3) of the Connecticut UCC, to the extent that such
proceeds do not constitute securities, instruments or general
intangibles in which a security interest is perfected in the manner
contemplated by this opinion, as if such proceeds were original
Liquid Collateral, (B) where such proceeds constitute securities and
in which proceeds a security interest is not perfected in the manner
contemplated by this opinion, as if such proceeds were original
collateral, or (C) where the proceeds constitute collateral which is
excluded from Article 8 or 9 of the Connecticut UCC.
(h) We express no opinion as to the priority of such security
interest over any other or competing interest in or claims against
such Liquid Collateral.
(i) We have assumed that (i) the Custodian, in the ordinary
course of business, accepts for deposit securities as a service for
its customers, maintains securities accounts in the names of such
customers reflecting ownership of or interests in such securities,
and, in regard to the transactions contemplated by the Indenture, is
acting in such capacity, (ii) all securities from time to time
credited to the Collateral Account and to be comprised in the Liquid
Collateral will have been "transferred" (within the meaning of
Section 8-313(1) of the Connecticut UCC) to the Custodian by the
issuers or prior holders of such Liquid Collateral, (iii) the records
of the Custodian indicate and will, at the time of reference thereto,
indicate that the aggregate amount of each security comprised in the
Liquid Collateral, together with all other such securities carried by
the Custodian for its customers and for its proprietary account, is
at least equal to the aggregate amount of such security carried by it
for its customers and for its proprietary account, (iv) the books and
records of the Custodian indicate and will, at the time of reference
thereto, indicate that the securities to be comprised in the Liquid
Collateral are registered on the books and records of the Custodian
as being for the beneficial account of the Owner Trustee, subject to,
as identified on such books and records, the security interest
therein in favor of the Indenture Trustee, and (v) the Custodian has
sent and, at the time of reference thereto, will have sent the
confirmations of such entries and identifications to the Indenture
Trustee and to Federal Express Corporation.
(j) In so far as our opinion relates to the enforceability
of any obligations of the Owner Trustee, the enforcement of such
obligations may be limited by bankruptcy, insolvency,
reorganization, moratorium, marshalling or other laws and rules of
law affecting the enforcement generally of creditors' rights and
remedies (including such as may deny giving effect to waivers of
debtors' or guarantors' rights); and we express no opinion as to
(i) the status under Section 548 of the Bankruptcy Code and
applicable state fraudulent conveyance laws of the obligations of
the Owner Trustee under the Indenture or interests purported to be
granted pursuant to the Indenture, (ii) the enforceability of any
particular provision of the Indenture relating to remedies after
default or as to the availability of any specific or equitable
relief of any kind (and we point out that the enforcement of any
of your rights may in all cases be subject to an implied duty of
good faith and fair dealing and to general principles of equity,
regardless of whether such enforceability is considered in a
proceeding at law or in equity, and, as to any of your rights to
collateral security, will be subject to a duty to act in a
commercially reasonable manner) or (iii) the enforceability of any
particular provision of the Indenture relating to (A) waivers of
defenses, of rights to trial by jury, or rights to object to
jurisdiction or venue and other rights or benefits bestowed by
operation of law, (B) the effect of suretyship defenses, or
defenses in the nature thereof, with respect to obligations of any
applicable guarantor, joint obligator or surety, (C) waivers of
provisions which are not capable of waiver under Sections 1-102(3)
and 9-501(3) of the Connecticut UCC, (D) the grant of powers of
attorney to the Indenture Trustee, (E) exculpation clauses,
indemnity clauses and clauses relating to releases or waivers of
unmatured claims or rights, (F) interest or other charges that may
be usurious under applicable law, or (G) the collection of
interest on overdue interest or providing for a penalty rate of
interest or late charges on overdue or defaulted obligations.
However, notwithstanding the qualification set forth in the
foregoing clause (ii), and excluding the parenthetical in that
clause, subject to the other exceptions, qualifications and
limitations set forth in this opinion (including the parenthetical
in clause (ii) and subject to the fact that there may be economic
consequences arising out of any procedural or other delay on
account of the limitation or unenforceability of any particular
provision of the Indenture relating to remedies after default,
such limitation or unenforceability does not, in our judgment,
render the provisions of the Indenture and the Control Agreement
relating to remedies after default, taken as a whole, inadequate
for the practical realization of the benefits of enforcement of a
security interest in the Liquid Collateral following the receipt
by the Custodian of an enforcement notice properly given under the
Indenture and the Control Agreement by the Indenture Trustee to
the Custodian with respect to such Liquid Collateral.
(k) With respect to property as to which the security
interest purported to be granted pursuant to the Indenture
attaches after the date hereof, we call to your attention that
Section 552 of the Bankruptcy Code limits the extent to which
assets acquired by a debtor after the commencement of a case under
the United States Bankruptcy Code may be subject to a security
interest arising from a security agreement entered into by the
debtor before the commencement of such case. We further call to
your attention that under Section 547 of the Bankruptcy Code, a
security interest that attaches within the relevant period set
forth in Section 547(b)(4) of the Bankruptcy Code may be avoidable
under certain circumstances.
Based upon and subject to the foregoing, we are of the opinion
that:
1. The Indenture Trustee has, under the terms of the
Connecticut UCC and, in the case of book-entry Treasury
securities, under the CFR, a perfected security interest in the
Liquid Collateral that constitutes "securities" (as such term is
defined in Section 8-102 of the Connecticut UCC), or "instruments"
(as defined in Section 9-105(1)(i) of the Connecticut UCC), and in
the identifiable proceeds thereof to secure the payment of the
Obligations.
2. The Indenture creates, under the terms of the Connecticut
UCC, a valid security interest in such of the Liquid Collateral that
constitutes "general intangibles" (as such term is defined in Section
9-106 of the Connecticut UCC) and in the identifiable proceeds
thereof to secure the payment of the Obligations. Upon the filing of
a financing statement on form UCC-1 pursuant to the Connecticut UCC
with the Secretary of State of the State of Connecticut naming the
Owner Trustee as Debtor and the Indenture Trustee as Secured Party
and accurately describing the Liquid Collateral and the Collateral
Account, which filing has been duly effected, such security interest
will be perfected (to the extent that the perfection of a security
interest in the Liquid Collateral can be accomplished by the filing
in Connecticut of financing statements under the Connecticut UCC).
We point out that:
(a) The effectiveness of a financing statement will lapse (i)
on the expiration of a five-year period from their dates of filing,
or (if later) five years from the last date as to which such
financing statements were effective following the proper filing of
continuation statements with respect thereto, unless continuation
statements are filed within six months prior to the expiration of the
applicable five-year period, (ii) with respect to general intangibles
in which a security interest has been perfected by the filing of a
financing statement in the jurisdiction of the location of the
debtor, for a period of more than four months after the debtor has
changed its location from that jurisdiction to a new jurisdiction
unless such security is perfected in the new jurisdiction within the
earlier to occur of the end of such four month period or the date on
which such financing statement would have otherwise lapsed, and (iii)
with respect to "investment property," under and as defined in
Revised Article 8, in which a security interest has been perfected by
the filing of a financing statement in the jurisdiction of the
location of the debtor, from the time that the debtor changes its
location from that jurisdiction to a new jurisdiction unless such
security interest is perfected in the new jurisdiction on or before
the time of such change of location.
(b) If any debtor changes its name, identity or corporate
structure such that any financing statement becomes misleading, such
financing statement will be ineffective to perfect a security
interest in any collateral acquired by such debtor more than four
months after such change.
We assume no obligation to update this opinion as a result of
any change in any fact, circumstance or statute or other rule of law
occurring after the date hereof.
This opinion is delivered to you solely in connection with the
transactions referred to herein and for your sole use and no other
person or entity may rely on this opinion without our express written
consent.
Very truly yours,
Bingham, Dana & Gould LLP
SCHEDULE A
Lessee
Federal Express Corporation
2007 Corporate Avenue
Memphis, Tennessee 38132
Owner Trustee
State Street Bank and Trust Company
of Connecticut, National Association
Two International Place
4th Floor
Boston, Massachusetts 02110
Indenture Trustee, Pass Through Trustee & Subordination Agent
First Security Bank, National Association
79 South Main Street
Salt Lake City, Utah 84111
Owner Participant
PMCC Leasing Corporation
200 First Stamford Place
Stamford, Connecticut 06902
Underwriters
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
First Chicago Capital Markets, Inc.
Corporate Securities
One First National Plaza
Chicago, Illinois 60670
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
J.P. Morgan & Co.
60 Wall Street
New York, New York 10260
Liquidity Provider
Kredietbank N.V., New York Branch
125 West 55th Street
New York, New York 10019
EXHIBIT A(4)(a)(ii)
[Letterhead of Bingham, Dana & Gould]
[Delivery Date]
To Each of the Parties Listed on Schedule A Hereto
Re: Federal Express Corporation Trust No. N671FE
Ladies and Gentlemen:
We have acted as counsel to State Street Bank and Trust
Company of Connecticut, National Association, a national banking
association in its individual capacity ("State Street") and its capacity as
Owner Trustee (the "Owner Trustee") under the Trust Agreement (Federal
Express Corporation Trust No.N671FE) dated as of May 1, 1997 between
State Street and PMCC Leasing Corporation, as Owner Participant ("Owner
Participant") (the "Trust Agreement") in connection with the transactions
contemplated by that certain Participation Agreement (Federal Express
Corporation Trust No. N671FE) dated as of May 1, 1997 (the "Participation
Agreement") by and among Federal Express Corporation (the "Lessee"); the
Owner Participant; and First Security Bank, National Association, in its
individual capacity and as Indenture Trustee (the "Indenture Trustee"),
Pass Through Trustee and Subordination Agent. Except as otherwise defined
herein, all capitalized terms used herein shall have the respective
meanings set forth in, or by reference to, the Participation Agreement.
The Owner Trustee has requested that we deliver this Opinion to
you in accordance with Section 4.02 of the Participation Agreement.
Our representation of State Street has been as special counsel
for the purposes stated above. As to all matters of fact (including factual
conclusions and characterizations and descriptions of purpose, intention or
other state of mind), we have relied entirely upon (i) the representations of
the parties set forth in the Operative Agreements and (ii) certificates
delivered to us by the management of State Street and have assumed, without
independent inquiry, the accuracy of those representations and certificates.
We have examined each of the Operative Agreements to which
State Street or the Owner Trustee, as applicable is a party (the "Owner
Trustee Documents"), the Certificate of the Comptroller of the Currency
relating to State Street and originals, or copies certified or otherwise
identified to our satisfaction, of such other corporate records, documents,
certificates and other instruments as we have deemed necessary or advisable
for the purposes of rendering this opinion.
We have assumed the genuineness of all signatures (other than
those on behalf of State Street and the Owner Trustee), the conformity to the
originals of all documents reviewed by us as copies, the authenticity and
completeness of all original documents reviewed by us in original or copy form
and the legal competence of each individual executing any document (other than
on behalf of State Street and the Owner Trustee).
When an opinion set forth below is given to the best of our
knowledge, or to our knowledge, or with reference to matters of which we are
aware or which are known to us, or with another similar qualification, the
relevant knowledge or awareness is limited to the actual knowledge or
awareness of the individual lawyer in the firm that signed this opinion, the
individual lawyers in the firm who have participated directly in the specific
transactions to which this opinion relates or in the preparation of this
opinion and the partner of the firm responsible for State Street corporate
trust matters, and without any special or additional investigation undertaken
for the purposes of this opinion.
Each opinion set forth below relating to the enforceability of
any agreement or instrument against State Street, the Owner Trustee or the
Owner Participant, as applicable, is subject to the following general
qualifications:
(i) as to any agreement to which State Street or the
Owner Trustee, as applicable, is a party, we assume that such
agreement is the legal, valid and binding obligation or each other
party thereto;
(ii) except as otherwise set forth in our opinions 13
and 14 below, the enforceability of any obligation of State
Street, the Owner Trustee and the Owner Participant, may be
limited by bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium, marshaling, or other similar laws and
rules of law affecting the enforcement generally of creditors'
rights and remedies (including such as may deny giving effect to
waivers of debtors' or guarantors' rights);
(iii) no opinion is given herein as to the
enforceability of any particular provision of any of the Owner
Trustee Documents relating to remedies after default or as to the
availability of any specific or equitable relief of any kind.
However, we are of the opinion that, subject to the other
limitations and qualifications contained in this opinion, the
remedies provided in the Owner Trustee Documents, taken as a
whole, are adequate for the realization of the principal benefits
or security of said agreements (except for the economic
consequences of procedural or other delay); and
(iv) the enforcement of any rights and the
availability of any specific or equitable relief of any kind may
in all cases be subject to an implied duty of good faith and to
general principles of equity (regardless of whether such
enforceability or relief is considered in a proceeding at law or
in equity) and, as to any of your rights to collateral security,
will be subject to a duty to act in a commercially reasonable
manner.
Subject to the limitations set forth herein, we have made
such examination of law as we have deemed necessary for the purposes of
this opinion. The opinions expressed herein are limited solely to the
internal substantive laws of the State of Connecticut and the Federal laws
of the United States of America. No opinion is expressed herein as to the
application or effect of federal securities laws or as to the securities or
so-called "Blue Sky" laws of any state or other jurisdiction. In addition,
no opinion is expressed as to matters governed by the Transportation Code,
or by any other law, statute, rule or regulation of the United States
relating to the acquisition, ownership, registration, use, operation,
maintenance, repair, replacement or sale of or the nature of the Aircraft,
Airframe or the Engines.
We have made no examination of, and no opinion is given herein
as to the Owner Trustee's or Owner Participant's title to or other ownership
rights in, or the existence of any liens, charges or encumbrances on, or
adverse claims against, any of the Indenture Estate. We express no opinion as
to the creation, attachment, perfection or priority of any mortgage, security
interest or lien in any of the Indenture Estate.
With your permission and without investigation, with respect to
paragraphs 2, 3 and 4 below in connection with our opinion relating to the
legality, validity, binding effect of the documents there referred to, to the
extent that the laws of the State of Connecticut do not govern such documents,
we have assumed that the laws of the jurisdictions whose laws govern such
documents are not materially different from the internal substantive laws of
the State of Connecticut.
In rendering our opinion in paragraphs 12 and 13 below, we have
assumed that the Owner Participant acquired its interest in the Trust Estate
for fair consideration and in good faith without any intention to hinder,
defraud or defraud or delay the Owner Participant's creditors.
This opinion is rendered solely for the benefit of those
institutions listed on Schedule A hereto and their respective successors and
assigns in connection with the transactions contemplated by the Operative
Agreements and may not be used or relied upon by any other person or for any
other purpose.
Based upon the foregoing, we are of the opinion that:
1. State Street is a national banking association duly
organized, validly existing and in good standing with the Comptroller
of the Currency under the laws of the United States of America, is a
"citizen of the United States" within the meaning of Section
40102(a)(15) of Title 49 of the United States Code, as amended and
has or had, on the date of execution thereof, full corporate power,
authority and legal right to execute, deliver and perform its
obligations under the Trust Agreement and, as Owner Trustee under the
Trust Agreement, to execute, deliver and perform its obligations
under the other Owner Trustee Agreements and to issue, execute,
deliver and perform its obligations under the Certificate.
2. State Street has or had, on the date of execution thereof,
duly authorized, executed, and delivered the Participation Agreement
and the Trust Agreement and the Participation Agreement and the Trust
Agreement constitute the legal, valid and binding obligation of State
Street, enforceable against it in its individual capacity in
accordance with the terms thereof.
3. The Owner Trustee is duly authorized under the Trust
Agreement to execute, deliver and perform each of the Owner Trustee
Agreements and each such Owner Trustee Agreement constitutes a legal,
valid and binding obligation of the Owner Trustee enforceable against
the Owner Trustee in accordance with its terms. The Certificate has
been duly issued, executed and delivered by the Owner Trustee,
pursuant to authorization contained in the Trust Agreement, and
assuming due authentication thereof by the Indenture Trustee,
constitutes the legal, valid and binding obligation of the Owner
Trustee enforceable against the Owner Trustee in accordance with its
terms and the terms of the Indenture; and the Certificate is entitled
to the benefits and security afforded by the Indenture in accordance
with its terms and the terms of the Indenture.
4. Assuming the due authorization, execution and delivery of
the Trust Agreement by the Owner Participant and that the Owner
Participant has the requisite corporate power and authority to enter
into and perform its obligations under the Trust Agreement, said
Trust Agreement constitutes the legal, valid and binding obligation
of the Owner Participant, enforceable against the owner Participant
in accordance with the terms thereof.
5. The Trust Agreement duly creates a legal and valid trust
under Connecticut law; the trust created by the Trust Agreement
exists for the benefit of the Owner Participant as provided therein
and creates for the benefit of the Owner Participant the interest in
the Trust Estate which the Trust Agreement by its terms purports to
create, subject however to the provisions of, and the Liens created
by, the Indenture and the Lease.
6. To the extent that the Uniform Commercial Code of the State
of Connecticut (the "UCC") is applicable, except for the Indenture
Trustee's taking possession of all monies and securities (including
instruments) constituting part of the Trust Indenture Estate, no
action, including the filing or recording of any document, is
necessary (i) to create under the UCC the security interest in the
Trust Indenture Estate (including the grant and assignment unto the
Indenture Trustee of the security interest in all estate, right,
title and interest of the Owner Trustee in, to and under the Lease
and the Participation Agreement) which the Indenture by its terms
purports to create in favor of the Indenture Trustee, and (ii) to
perfect in the State of Connecticut such security interest, except
for the filing of a UCC financing statement complying with the formal
requisites of Section 9-402 of the UCC in the office of the Division
of Corporations and Commercial Code of the State of Connecticut with
respect to the security interest, which filing has been duly
effected, and the filing of continuation statements with respect
thereto required to be filed at periodic intervals under the UCC.
7. Neither the execution, delivery or performance by the Owner
Trustee, in its individual capacity or as Owner Trustee, as the case
may be, of the Certificates or the Owner Trustee Documents, the
consummation by the Owner Trustee, in its individual capacity or as
Owner Trustee, as the case may be, of any of the transactions
contemplated thereby nor the compliance by the Owner Trustee, in its
individual capacity or as Owner Trustee, as the case may be, with any
of the terms and provisions thereof (i) requires any approval of its
stockholders, any consent or approval of or the giving of notice to
any trustees or holders of any indebtedness or obligations of it
known to us, or (ii) violates its charter documents or by-laws, or
contravenes or will contravene any provision of, or constitutes a
default under, or results in any breach of, or results in the
creation of any Lien (other than as permitted under the Operative
Agreements) upon property under, any indenture, mortgage, chattel
mortgage, deed of trust, conditional sales contract, bank loan or
credit agreement, license or other agreement or instrument, in each
case, known to us to which it is a party or by which it is bound or
contravenes any Connecticut or United States applicable law governing
the banking or trust powers of the Owner Trustee, or any judgment or
order in each case, known to us applicable to or binding on it.
8. To our knowledge, there are no proceedings or actions
pending or threatened against or affecting the Owner Trustee, in its
individual capacity or as Owner Trustee, before any governmental
authority which, individually or in the aggregate, if adversely
determined, would materially and adversely affect the ability of the
Owner Trustee, in its individual capacity or as Owner Trustee, as the
case may be, to enter into or to perform its obligations under the
Owner Trustee Documents or the Certificate.
9. No consent, approval, order or authorization of, giving of
notice to, or registration with, or taking of any other action in
respect of, any Connecticut or United States governmental authority
regulating the banking or trust powers of the Owner Trustee, in its
individual capacity, is required for the execution and delivery of,
or the carrying out by, the Owner Trustee in its individual capacity
or as Owner Trustee, as the case may be, of any of the transactions
contemplated by the Owner Trustee Documents, other than any such
consent, approval, order, authorization, registration, notice or
action as has been duly obtained, given or taken.
10. There are no fees, taxes or other charges payable by the
Owner Trustee, the Trust Estate or the trust created by the Trust
Agreement imposed by the State of Connecticut or any political
subdivision or taxing authority thereof in connection with the
execution, delivery and performance by State Street, individually or
as Owner Trustee, of the Owner Trust Documents (other than franchise
or other taxes based on or measured by any fees or compensation
received by State Street, acting as the Owner Trustee, for services
rendered in connection with the transactions contemplated by the
Operative Agreements) and, assuming that the trust created by the
Trust Agreement will not be taxable as a corporation, but, rather,
will be characterized as a grantor trust under subpart E, Part I of
Subchapter J of the Internal Revenue Code of 1986, as amended, or
will be otherwise ignored for Federal tax purposes, (i) such trust
will not be subject to any fees, taxes or other charges imposed by
the State of Connecticut or any political subdivision thereof based
on income, receipts, value or otherwise, (ii) Holders that are not
residents of or otherwise subject to tax in Connecticut will not be
subject to any taxes imposed by the State of Connecticut or any
political subdivision thereof as a result of purchasing, holding
(including receiving payments with respect to) or selling a
Certificate and (iii) assuming the Owner Participant is not a
Connecticut resident or otherwise subject to tax in Connecticut and
further assuming that the assets of the trust created by the Trust
Agreement are not deemed to be located in Connecticut, the Owner
Participant will not be subject to any taxes imposed by the State of
Connecticut or any political subdivision thereof solely as a result
of being the beneficial owner of the trust created by the Trust
Agreement.
11. The Owner Trustee has received such title to the Aircraft
as has been conveyed to it subject to the rights of the Owner Trustee
and the Lessee under the Lease and the security interest created
pursuant to the Indenture and the Lease; and to our knowledge, there
exist no liens or encumbrances affecting the right, title and
interest of the Owner Trustee in and to the Trust Estate resulting
from claims against State Street not related to the ownership of the
Trust Estate or any other transaction contemplated by the Operative
Agreements.
12. All the properties which are part of the Indenture Estate
(including all right, title and interest of the Owner Trustee pledged
and mortgaged by it pursuant to the Indenture) have been pledged and
mortgaged with the Indenture Trustee as part of the Indenture Estate,
and the beneficial interest of the Owner Participant under the Trust
Agreement in and to such properties is subject, to the extent
provided in the Indenture, to the liens of the Indenture in favor of
the holders from time to time of the Certificate.
13. Neither a Connecticut court nor a Federal court applying
federal law or Connecticut law, if properly presented with the issue
and after having properly considered such issue, would permit the
Owner Participant to terminate the Trust Agreement, except as
otherwise provided therein, until the Lien of the Indenture on the
Indenture Estate has been released and until payment in full of the
principal of, and premium, if any, and interest on, the Certificates
and all other sums due the holders of the Certificates has been made.
14. Under the laws of the State of Connecticut, as long as the
Trust Agreement has not been terminated in accordance with its terms,
creditors of any person that is an Owner Participant, holders of a
lien against the assets of any such person and representatives of
creditors of any such person, such as trustees, receivers or
liquidators (whether or not any insolvency proceeding has been
commenced) (collectively the "Creditors") may acquire legal, valid
and enforceable claims and liens, as to the Trust Estate, only
against the beneficial interest of such person in the Trust Estate,
and do not have, and may not through the enforcement of such
Creditors' rights acquire, any other legal, valid, and enforceable
claim or lien against the Trust Estate.
Very truly yours,
Bingham, Dana & Gould LLP
SCHEDULE A
Lessee
Federal Express Corporation
2007 Corporate Avenue
Memphis, Tennessee 38132
Owner Trustee
State Street Bank and Trust Company
of Connecticut, National Association
Two International Place
4th Floor
Boston, Massachusetts 02110
Indenture Trustee, Pass Through Trustee & Subordination Agent
First Security Bank, National Association
79 South Main Street
Salt Lake City, Utah 84111
Owner Participant
PMCC Leasing Corporation
200 First Stamford Place
Stamford, Connecticut 06902
Underwriters
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
First Chicago Capital Markets, Inc.
Corporate Securities
One First National Plaza
Chicago, Illinois 60670
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
J.P. Morgan & Co.
60 Wall Street
New York, New York 10260
Liquidity Provider
Kredietbank N.V., New York Branch
125 West 55th Street
New York, New York 10019
EXHIBIT A(5)
[Letterhead of Ray, Quinney & Nebeker]
[Certificate Closing Date]
To the Persons Listed in Schedule A Attached Hereto
Re: Federal Express Corporation Trust No. N671FE
Ladies and Gentlemen:
We have acted as special counsel to First Security Bank,
National Association, a national banking association ("First Security"), in
connection with the Pass Through Trust Agreement dated as of May 1, 1997
(the "Pass Through Trust Agreement"), as supplemented by the Series
Supplements dated the date hereof between Federal Express Corporation and
the First Security, not in its individual capacity, except as otherwise
stated, but solely as Pass Through Trustee, designated as Series Supplement
1997-1-A, 1997-1-B and 1997-1-C, respectively (the "Series Supplements")
and the Participation Agreement (Federal Express Corporation Trust No.
N671FE), dated as of May 1, 1997 (the "Participation Agreement"), among
Federal Express Corporation, as Lessee, PMCC Leasing Corporation, as Owner
Participant, State Street Bank and Trust Company of Connecticut, National
Association, not in its individual capacity, except as otherwise stated,
but solely as Owner Trustee, and First Security, not in its individual
capacity, except as otherwise stated, but solely as Indenture Trustee, Pass
Through Trustee and Subordination Agent. Pursuant to the Participation
Agreement, one Airbus A300F4-605R aircraft bearing U.S. Registration No.
N671FE (the "Aircraft") is being financed. This opinion is furnished
pursuant to Section 4.01(k)(iv) of the Participation Agreement.
Capitalized terms used herein and not otherwise defined are used as defined
in the Participation Agreement, except that references herein to any
instrument shall mean such instrument as in effect on the date hereof.
We have examined executed counterparts or copies otherwise
identified to our satisfaction of the following documents:
(a) The Pass Through Trust Agreement;
(b) The Series Supplements;
(c) The Pass Through Certificates;
(d) The Participation Agreement;
(e) The Intercreditor Agreement; and
(f) Each Liquidity Facility.
(each of the documents identified in paragraphs (a) through (e) are being
collectively referred to as the "Pass Through Trustee Documents" and each of
the documents identified in paragraphs (d) through (f) are being collectively
referred to as the "Subordination Agent Documents").
We have also examined originals or copies of such other
documents, such corporate records, certificates and other statements of
governmental officials and corporate officers and other representatives of the
corporations or entities referred to herein and such other instruments as we
have deemed necessary or appropriate for the purposes of this opinion.
Moreover, as to certain facts material to the opinions expressed herein, we
have relied upon representations and warranties contained in the Pass Through
Trustee Documents or the Subordination Agent Documents, as the case may be.
Based upon the foregoing and upon an examination of such
questions of law as we have considered necessary or appropriate, and subject
to the assumptions, exceptions and qualifications set forth below, we advise
you that, in our opinion:
With respect to the opinions set forth in paragraph 8 above,
with your permission we have relied upon, and this opinion is limited by, the
assumptions set forth in the discussion entitled "Certain Utah Taxes" in the
Prospectus Supplement to the Prospectus forming part of Registration Number
No. 333-07691 (the "Registration Statement") for the registration of the Pass
Through Certificates with the Securities and Exchange Commission. We express
no opinion as to the correctness of the foregoing assumptions and we have
conducted no independent investigation in this regard.
1. First Security is a national banking association duly
organized and validly existing under the laws of the United States of
America holding a valid certificate to do business as a national
banking association, with banking and trust powers.
2. Each of First Security, the Pass Through Trustee and the
Subordination Agent, as the case may be, has or had, on the date of
execution thereof, full corporate power, authority and legal right to
execute, deliver and perform each of the Pass Through Trustee
Documents and the Subordination Agent Documents, as the case may be,
and to authenticate the Pass Through Certificates delivered on the
Certificate Closing Date.
3. Each of First Security, the Pass Through Trustee and the
Subordination Agent has duly authorized, executed and delivered each
Pass Through Trustee Document or Subordination Agent Document, as the
case may be; each such document constitutes a legal, valid and
binding obligation of the Pass Through Trustee or the Subordination
Agent, as the case may be (and, to the extent set forth in the
respective Pass Through Trustee Document or Subordination Agent
Document, of First Security) enforceable against the Pass Through
Trustee or the Subordination Agent, as the case may be (and, to the
extent set forth in the respective Pass Through Trustee Document or
Subordination Agent Document, against First Security) in accordance
with its terms.
4. The Pass Through Certificates issued and dated the
Certificate Closing Date have been duly authorized and validly
executed, issued, delivered and authenticated by the Pass Through
Trustee pursuant to the Pass Through Trust Agreement and the Series
Supplements; and the Pass Through Certificates acquired by the
Underwriters under the Underwriting Agreement are enforceable against
the Pass Through Trustee and are entitled to the benefits of the
related Pass Through Trust Agreement and the related Series
Supplements.
5. No order, license, consent, permit, authorization or
approval of or exemption by, and no notice to or filing with, or the
taking of any other action in respect of, any Utah or Federal
governmental authority governing the banking or trust powers of First
Security, the Pass Through Trustee or the Subordination Agent, and no
filing, recording, publication or registration in any public office
is required under Utah or Federal law pertaining to its banking or
trust powers for the due execution, delivery or performance by First
Security, individually or as Pass Through Trustee or Subordination
Agent, as the case may be, of the Pass Through Trustee Documents
(other than the Pass Through Trust Agreement) or the Subordination
Agent Documents, as the case may be, and of the certificate of
authentication, as Pass Through Trustee, on the Pass Through
Certificates, or for the legality, validity, binding effect or
enforceability thereof against First Security, the Pass Through
Trustee or the Subordination Agent, as the case may be.
6. The execution, delivery and performance by the Pass
Through Trustee or First Security, as the case may be, of each of
the Pass Through Documents and the Subordination Agent or First
Security, as the case may be, of each of the Subordination Agent
Documents, and the issuance, execution, delivery and performance
of the Pass Through Certificates by the Pass Through Trustee are
not or were not, on the date of execution thereof, in violation of
the charter or by-laws of First Security or of any law,
governmental rule, or regulation of the State of Utah or the
United States of America governing the banking or trust powers of
First Security or, to our knowledge, of any indenture, mortgage,
bank credit agreement, note or bond purchase agreement, long-term
lease, license or other agreement or instrument to which it is a
party or by which it is bound or, to our knowledge, of any
judgment or order of the State of Utah or the United States of
America relating to the banking or trust powers of First Security.
7. There are no actions, suits, investigations or
proceedings pending or, to our knowledge, threatened against or
affecting First Security, the Pass Through Trustee or the
Subordination Agent or any of its properties in any court or
before any administrative agency or arbitrator, which, if
adversely determined, would materially adversely affect the
ability of First Security, the Pass Through Trustee or the
Subordination Agent, as the case may be, to perform its
obligations under any of the Pass Through Trustee Documents or the
Subordination Agent Documents, as the case may be, and there are
no pending or, to our knowledge, threatened actions or proceedings
before any court, administrative agency or tribunal involving
First Security, the Pass Through Trustee or the Subordination
Agent in connection with the transactions contemplated by any of
the Pass Through Trustee Documents or the Subordination Agent
Documents, as the case may be.
8. Neither the trusts created by the Pass Through Trust
Agreement and the Series Supplements nor the Pass Through Trustee,
in its individual or trust capacity, as the case may be, nor their
respective Affiliates, successors or assigns, will be subject to
any tax (including, without limitation, net or gross income,
tangible or intangible property, net worth, capital, franchise or
doing business tax), fee or other governmental charge under the
laws of the State of Utah or any political subdivision thereof
(other than taxes imposed on the fees received by State Street
Bank and Trust Company for acting as Pass Through Trustee under
the Series Supplements). Certificate holders who are not
residents of or otherwise subject to tax in Utah will not be
subject to any tax (including, without limitation, net or gross
income, tangible or intangible property, net worth, capital,
franchise or doing business tax), fee or other governmental charge
under the laws of the State of Utah or any political subdivision
thereof as a result of purchasing, owning (including receiving
payments with respect to) or selling a Pass Through Certificate.
There are no applicable taxes under the laws of the State of Utah
or any political subdivision thereof upon or with respect to (a)
the construction, mortgaging, financing, refinancing, purchase,
acquisition, acceptance, rejection, delivery, nondelivery,
transport, location, ownership, insurance, control, assembly,
possession, repossession, operation, use, condition, maintenance,
repair, sale, return, abandonment, replacement, preparation,
installation, storage, redelivery, manufacture, leasing,
subleasing, modification, rebuilding, importation, transfer of
title, transfer of registration, exportation or other application
or disposition of the Aircraft or any interest in any thereof, (b)
payments of Rent or other receipts, income or earnings arising
therefrom or received with respect to the Aircraft or any interest
in any thereof or payable pursuant to the Lease, (c) any amount
paid or payable pursuant to any Operative Agreements, (d) the
Aircraft or any interest therein or the applicability of the Lease
to the Aircraft or any interest in any thereof, (e) any or all of
the Operative Agreements, any or all of the Pass Through
Certificates or any interest in any or all thereof or the
offering, registration, reregistration, issuance, acquisition,
modification, assumption, reissuance, refinancing or refunding of
any or all thereof, and any other documents contemplated thereby
and amendments or supplements hereto and thereto, (f) the payment
of the principal of, or interest or premium on, or other amounts
payable with respect to, any or all of the Pass Through
Certificates, whether as originally issued or pursuant to any
refinancing, refunding, assumption, modification or reissuance, or
any other obligation evidencing any loan in replacement of the
loan evidenced by any or all of the Pass Through Certificates, or
(g) otherwise with respect to or in connection with the
transactions contemplated by the Pass Through Trust Agreement, the
Series Supplements, the Pass Through Certificates and the
Operative Agreements, which would not have been imposed if the
Pass Through Trustee had not had its principal place of business
in, had not performed (either in its individual capacity or as
Pass Through Trustee) any or all of its administrative duties
under the Pass Through Trust Agreement, the Series Supplements,
the Pass Through Certificates and the Operative Agreements in, and
had not engaged in any activities unrelated to the transactions
contemplated by the Pass Through Trust Agreement, the Series
Supplements, the Pass Through Certificates and the Operative
Agreements in, the State of Utah.
9. Each of the Certificates to be delivered to and registered
in the name of the Subordination Agent on the date hereof pursuant to
the Participation Agreement and the Intercreditor Agreement will be
held by the Subordination Agent in trust for the Pass Through Trustee
under the applicable Pass Through Trust Agreement.
Very truly yours,
Ray, Quinney & Nebeker
SCHEDULE A
Lessee
Federal Express Corporation
2007 Corporate Avenue
Memphis, Tennessee 38132
Owner Trustee
State Street Bank and Trust Company
of Connecticut, National Association
Two International Place
4th Floor
Boston, Massachusetts 02110
Indenture Trustee, Pass Through Trustee & Subordination Agent
First Security Bank, National Association
79 South Main Street
Salt Lake City, Utah 84111
Owner Participant
PMCC Leasing Corporation
200 First Stamford Place
Stamford, Connecticut 06902
Underwriters
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
First Chicago Capital Markets, Inc.
Corporate Securities
One First National Plaza
Chicago, Illinois 60670
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
J.P. Morgan & Co.
60 Wall Street
New York, New York 10260
Liquidity Provider
Kredietbank N.V., New York Branch
125 West 55th Street
New York, New York 10019
EXHIBIT A(6)(a)
[Letterhead of Kredietbank N.V.]
[Certificate Closing Date]
To Each of the Parties named on Schedule A Hereto
Re: Federal Express Corporation 1997-1
Enhanced Pass Through Certificates
Ladies and Gentlemen:
I am the manager of the Legal Department of Kredietbank N.V.
("Kredietbank") and have advised Kredietbank and its New York Branch (the
"Branch") in connection with (i) the Irrevocable Revolving Credit Agreement
Class A Certificates, dated as of May 1, 1997 (the "Class A Liquidity
Agreement"), between the Branch and First Security Bank, National
Association, a national banking association, as Subordination Agent under
the Intercreditor Agreement, defined below, and as agent and trustee for
the Federal Express Corporation Pass Through Trust 1997-1-A, (ii) the
Irrevocable Revolving Credit Agreement Class B Certificates, dated as of
May 1, 1997 (the "Class B Liquidity Agreement"), between the Branch and
First Security Bank, National Association, a national banking association,
as Subordination Agent under the Intercreditor Agreement, defined below,
and as agent and trustee for the Federal Express Corporation Pass Through
Trust 1997-1-B (the "Intercreditor Agreement" and, together with the
Liquidity Agreements, the "Liquidity Documents"), and (iii) the
Intercreditor Agreement, dated as of May 1, 1997 (the "Intercreditor
Agreement"), among the Branch, First Security Bank, National Association,
as Pass Through Trustee and as Subordination Agent (the Liquidity
Agreements and the Intercreditor Agreement are hereinafter collectively the
"Liquidity Documents").
Capitalized terms herein which are undefined have the meanings
assigned to them in the Liquidity Documents.
I am rendering this opinion in my capacity as manager of the
Legal Department and without being personally liable to any extent for the
opinions expressed herein.
In connection with the opinions hereinafter given, I have
examined a copy of each of the Liquidity Documents and such other
certificates, documents, agreements and instruments as I have deemed
necessary as a basis for the opinions expressed below.
In such examination, I have assumed the genuineness of all
signatures, the authenticity of all agreements, certificates, instruments and
documents submitted to me as originals, and the conformity to the originals of
all agreements, certificates, instruments and documents submitted to me as
copies. As to questions of fact material to the opinions expressed below, I
have, when relevant facts were not independently established by me, examined
and relied upon representations of officers of Kredietbank.
Based upon the foregoing examination and assumptions, and
subject to the qualifications set forth below, I am of the opinion that:
1. Kredietbank is duly organized and validly existing as a
Belgian public law banking institution under the law of Belgium and
has full power and authority (corporate and otherwise) to execute,
deliver and perform the Liquidity Documents.
2. [Tod Angus] or [Robert Snauffer], acting together with
[Jean Glasgow], if acting for and on behalf of the Branch, are
duly authorized by Kredietbank to execute and deliver the
Liquidity Documents for and on behalf of the Branch. Assuming
each of the Liquidity Documents has been duly executed and
delivered for and on behalf of the Branch by such persons, no
further authorization by or any corporate action of Kredietbank is
required in connection with the execution, delivery and
performance thereof.
3. The governing-law clause, subjecting the Liquidity
Documents to New York law, is valid under Belgian law.
(i) Under Belgian law, New York law will be applied to an
agreement, such as the Liquidity Documents, which under Belgian
law has been validly subjected to New York laws.
(ii) (a) None of the terms of the Liquidity Documents
is irreconcilable with important principles of Belgian law,
and (b) there are no mandatory provisions of Belgian law
which must be applied to the transactions covered by the
Liquidity Documents.
(iii) Each of the Liquidity Documents constitutes the
legal, valid and binding obligation of Kredietbank,
enforceable against Kredietbank in accordance with its
terms, the rules of civil procedures of Belgium and the
applicable provisions of the chosen law of New York.
4. No authorization, consent, approval or other action by,
and no notice to or filing with, any governmental, administrative
or other authority or court of Belgium is required for the
execution or delivery of the Liquidity Documents by Kredietbank
through the Branch or for the performance by Kredietbank or by the
Branch of the Liquidity Documents.
5. The execution, delivery and performance of the Liquidity
Documents by Kredietbank or the Branch will not result in any
violation by Kredietbank or by the Branch of any law of Belgium.
6. The contractual obligations incurred by virtue of the
execution and delivery of the Liquidity Documents for and on behalf
of the Branch are the obligations of Kredietbank, and Kredietbank has
no defenses against the performance of such obligations which are
based on the fact that Kredietbank had acted through the Branch in
executing and delivering the Liquidity Documents.
7. If a final and conclusive judgment of the Supreme Court of
the State of New York, New York County, or of the Untied States
District Court for the Southern District of New York for a definite
sum for the recovery of amounts due and unpaid under the Liquidity
Documents were to be rendered against Kredietbank, a reexamination or
relitigation on the merits of the subject matter thereof in
accordance with Article 570 of the Belgian Judicial Code would be
necessary in order to obtain recognition and/or enforcement of such
judgment in Belgium.
8. The obligations of Kredietbank under the Liquidity
Documents rank at least equal in priority of payment and in all
other respects with its obligations to pay any other unsecured and
unsubordinated obligations of Kredietbank for borrowed money,
including deposit liabilities, that are not expressly preferred by
law.
The foregoing opinions are subject to the following
qualifications:
(i) The opinion in paragraph (3) with respect to
enforceability is subject to the effect of any bankruptcy,
insolvency, reorganization, moratorium, liquidation or similar
laws affecting creditors' rights generally, applicable to
Kredietbank and to any law or general principle of law from
time to time in effect in Belgium that could be considered by
the Belgian Courts as a provision of public policy.
(ii) In giving the opinions in paragraphs (3)(iii), (6) and
(8), I have assumed, with your consent, that each of the
Liquidity Documents is legal, valid and binding under New York
law, all as set forth more fully in the opinion dated of even
date herewith of Milbank, Tweed, Hadley & McCloy issued in
connection with the Liquidity Documents.
(iii) No opinion is expressed with respect to the law of any
jurisdiction other than the law of Belgium.
This opinion is being furnished to you solely for your benefit
in connection with the transactions described above and may not be used,
circulated, quoted or otherwise referred to for any other purpose without my
express written consent.
Very truly yours,
SCHEDULE A
Lessee
Federal Express Corporation
2007 Corporate Avenue
Memphis, Tennessee 38132
Indenture Trustee, Pass Through Trustee & Subordination Agent
First Security Bank, National Association
79 South Main Street
Salt Lake City, Utah 84111
Underwriters
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
First Chicago Capital Markets, Inc.
Corporate Securities
One First National Plaza
Chicago, Illinois 60670
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
J.P. Morgan & Co.
60 Wall Street
New York, New York 10260
EXHIBIT A(6)(b)
[Letterhead of Milbank, Tweed, Hadley & McCloy]
[Certificate Closing Date]
To Each of the Parties named on Schedule A Hereto
Re: Federal Express Corporation 1997-1
Enhanced Pass Through Certificates
Ladies and Gentlemen:
We have acted as special New York counsel to Kredietbank
N.V., New York Branch (herein called the "Liquidity Provider") in
connection with the transactions contemplated by (i) the Irrevocable
Revolving Credit Agreement Class A Certificates, dated as of May 1, 1997
(the "Class A Liquidity Agreement"), between the Liquidity Provider and
First Security Bank, National Association, as Subordination Agent under the
Intercreditor Agreement, as defined below, as agent and trustee for the
Federal Express Corporation 1997-1-A Pass Through Trust, (ii) the
Irrevocable Revolving Credit Agreement Class B Certificates, dated as of
May 1, 1997 (the "Class B Liquidity Agreement" and, together with the Class
A Liquidity Agreement, the "Liquidity Agreements"), between the Liquidity
Provider and First Security Bank, National Association, as Subordination
Agent under the Intercreditor Agreement, as defined below, as agent and
trustee for the Federal Express Corporation 1997-1-B Pass Through Trust,
and (iii) the Intercreditor Agreement, dated as of May 1, 1997 (the
"Intercreditor Agreement" and, together with the Liquidity Agreements, the
"Liquidity Documents"), among the Liquidity Provider and First Security
Bank, National Association, as Pass Through Trustee and as Subordination
Agent. Capitalized terms used herein but not otherwise defined herein
shall have the meanings provided in the Liquidity Documents.
In rendering the opinion expressed below, we have examined
the Liquidity Documents, the opinion dated the date hereof of Wilfred
Kupers, Esq., manager of the Legal Department of Kredietbank N.V., and such
other documents as we have deemed necessary.
In our examination, we have assumed the authenticity of all
documents submitted to us as originals and the conformity with authentic
original documents of all documents submitted to us as copies. When relevant
facts were not independently established, we have relied upon representations
made in or pursuant to the Liquidity Documents.
In rendering the opinion expressed below, we have assumed, with
respect to each Liquidity Document, that:
(i) it has been duly authorized by, has been duly executed and
delivered by, and (except to the extent set forth in the
opinion below as to the Liquidity Provider) constitutes
legal, valid, binding and enforceable obligations of all of
the parties thereto;
(ii) all signatories thereto have been duly authorized; and
(iii) all of the parties thereto are duly organized and validly
existing and have the power and authority (corporate,
partnership, trust or other) to execute, deliver and perform
thereunder.
Based upon and subject to the foregoing and subject also to
the comments and qualifications set forth below, and having considered such
questions of law as we have deemed necessary as a basis for the opinion
expressed below, we are of the opinion that each Liquidity Document
constitutes the legal, valid and binding obligation of the Liquidity
Provider, enforceable against the Liquidity Provider in accordance with its
terms, except as may be limited by bankruptcy, insolvency, reorganization,
moratorium, fraudulent conveyance or transfer or other similar laws
relating to or affecting the rights of creditors generally and except as
the enforceability of such Liquidity Document is subject to the application
of general principles of equity (regardless of whether considered in a
proceeding in equity or at law), including, without limitation, (a) the
possible unavailability of specific performance, injunctive relief or any
other equitable remedy and (b) concepts of materiality, reasonableness,
good faith and fair dealing.
The foregoing opinion is subject to the following comments and
qualifications:
(A) The enforceability of provisions in the Liquidity
Documents to the effect that terms may not be waived or modified
except in writing may be limited under certain circumstances.
(B) We express no opinion as to (i) the effect of the laws of
any jurisdiction in which the Liquidity Provider is located (other
than New York) that limit the interest, fees or other charges the
Liquidity Provider may impose for the loan or use of money or other
credit, (ii) Section 7.11(a)(i) of each Liquidity Agreement and
Section 10.11(a)(i) of the Intercreditor Agreement, insofar as such
Sections relate to the subject matter jurisdiction of a Federal court
sitting in New York, New York to adjudicate any controversy related
to the Liquidity Documents, (iii) the waiver of inconvenient forum
set forth in Section 7.11(a)(ii) of each Liquidity Agreement and
Section 10.11(a)(ii) of the Intercreditor Agreement with respect to
proceedings in a Federal court sitting in New York, New York and a
State court of the State of New York and (iv) the waiver of immunity
set forth in Section 10.11(c) of the Intercreditor Agreement with
respect to proceedings in a Federal court sitting in New York, New
York and a State court of the State of New York.
The foregoing opinion is limited to matters involving the
Federal laws of the United States of America and the law of the State of
New York, and we do not express any opinion as to the laws of any other
jurisdiction. In particular, we do not express any opinion as to the laws
of Belgium and, to the extent such laws may be relevant to the opinion
expressed herein, we have, with your permission, relied upon the
aforementioned opinion of Wilfred Kupers, Esq., manager of the Legal
Department of Kredietbank N.V., without independently considering the
matters covered thereby, and our opinion is subject to all limitations,
exceptions and qualifications contained therein as if set forth herein in
full.
At the request of the Liquidity Provider, this opinion letter is
provided to you by us in our capacity as special New York counsel to the
Liquidity Provider, and this opinion letter may not be relied upon by any
Person for any purpose other than in connection with the transactions
contemplated by the Liquidity Documents without, in each instance, our prior
written consent.
Very truly yours,
SCHEDULE A
Lessee
Federal Express Corporation
2007 Corporate Avenue
Memphis, Tennessee 38132
Indenture Trustee, Pass Through Trustee & Subordination Agent
First Security Bank, National Association
79 South Main Street
Salt Lake City, Utah 84111
Underwriters
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
First Chicago Capital Markets, Inc.
Corporate Securities
One First National Plaza
Chicago, Illinois 60670
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
J.P. Morgan & Co.
60 Wall Street
New York, New York 10260
Liquidity Provider
Kredietbank N.V., New York Branch
125 West 55th Street
New York, New York 10019
EXHIBIT A(7)
[Letter of General Electric Company]
[Delivery Date]
To Each of the Parties named on Schedule A Hereto
Re: Federal Express Corporation Trust No. N671FE
Reference is made to (i) that certain Participation Agreement
(Federal Express Corporation Trust No. N671FE), dated as of May 1, 1997
(the "Participation Agreement") by and among Federal Express Corporation,
as Lessee ("Fed Ex"), PMCC Leasing Corporation, as Owner Participant, State
Street Bank and Trust Company of Connecticut, National Association ("SSB")
(not in its individual capacity, except as otherwise expressly set forth
therein, but solely as Owner Trustee), First Security Bank, National
Association ("FSB") (not in its individual capacity, except as otherwise
expressly set forth therein, but solely as Indenture Trustee, Pass Through
Trustee and Subordination Agent); (ii) that certain Purchase Agreement
Assignment (Federal Express Corporation Trust No. N671FE), dated as of May
1, 1997 (the "Purchase Agreement Assignment") between Fed Ex, as Lessee and
SSB, as Lessor; (iii) that certain Lease Agreement (Federal Express
Corporation Trust No. N671FE), dated as of May 1, 1997 (the "Lease")
between SSB (not in its individual capacity, but solely as Owner Trustee),
as Lessor and Fed Ex, as Lessee; (iv) that certain Trust Indenture and
Security Agreement (Federal Express Corporation Trust No. N671FE), dated
as of May 1, 1997 (the "Trust Indenture") between SSB (not in its
individual capacity), as Owner Trustee and FSB (not in its individual
capacity), as Indenture Trustee; and (v) that certain Trust Agreement
(Federal Express Corporation Trust No. N671FE), dated as of May 1, 1997
(the "Trust Agreement") between SSB (not in its individual capacity), as
Owner Trustee and PMCC Leasing Corporation, as Trustor.
I am an attorney employed by General Electric Company, a New York
corporation (the "Engine Manufacturer") and as such have acted as counsel
for the Engine Manufacturer in connection with the execution and delivery
by the Engine Manufacturer of the Consent (the "Consent"), and the Engine
Warranty Assignment (Federal Express Corporation Trust No. N671FE) (the
"Engine Warranty Assignment"), each attached to the Participation Agreement
as Exhibit F and dated as of May 1, 1997. The Consent and the Engine
Warranty Assignment covers two GE CF6-80C2-A5F series engines bearing
Engine Manufacturer's serial numbers ___-___ and ___-___, respectively. In
this connection, I have, or an attorney under my supervision has, reviewed
such documents as I have deemed necessary for the purpose of this opinion,
including, but without limiting the generality of the foregoing, the
General Terms Agreement No. 6-9034, dated as of July 3, 1991 between the
Engine Manufacturer and Fed Ex (the "General Terms Agreement"), the Engine
Product Support Plan forming a part thereof (the "Engine Product Support
Plan"), the Participation Agreement, the Purchase Agreement Assignment, the
Lease, the Trust Indenture and the Trust Agreement.
In making such examinations, I have relied upon the accuracy of
original, certified, conformed, photocopied or telecopied copies of such
records, agreements, certificates and other documents as I have deemed
necessary or appropriate to enable me to render the opinions expressed
herein. In all such examinations, I have assumed the genuineness of
signatures on original documents and the conformity to such original
documents of all copies submitted to me as certified, conformed,
photocopied or telecopied copies, and as to certificates and telegraphic
and telephonic confirmations given by public officials, I have assumed the
same to have been properly given and to be accurate. As to various
questions of fact material to such opinions, I have relied, when such
relevant facts were not independently established by me, solely upon the
accuracy of the statements, representations and warranties made in the
Participation Agreement, the Purchase Agreement Assignment, the Lease, the
Trust Indenture and the Trust Agreement.
With your consent, and for the purposes of this opinion, I have
assumed (other than with respect to the Engine Manufacturer), the accuracy of
the following matters, but I have not made any independent investigation or
inquiry with respect thereto and I render no opinion on such matters:
(a) each of the Participation Agreement, the Purchase
Agreement Assignment, the Lease, the Trust Indenture, and the Trust
Agreement have been duly and validly authorized, executed and
delivered by all parties thereto and constitutes the legal, valid and
binding obligations of each of such parties in accordance with the
respective terms thereof; and
(b) the respective parties to the Participation Agreement,
the Purchase Agreement Assignment, the Lease, the Trust Indenture,
and the Trust Agreement have obtained, and there are in full force
and effect, any and all federal, state, local or foreign
governmental agencies and authorities in connection with the
transactions contemplated thereby, to the extent necessary for the
legality, validity and binding effect or enforceability of the
Consent and the Engine Warranty Assignment.
Based upon the foregoing, and subject to the specific assumptions,
qualifications and reliances herein set forth, and on the basis of my
consideration of such facts and law as I have deemed necessary for purposes of
this letter, it is my opinion that:
(1) The Engine Manufacturer has the full corporate power,
authority and the legal right to enter into and perform its
obligations under the General Terms Agreement, the Consent and the
Engine Warranty Assignment. The execution, delivery and
performance by the Engine Manufacturer of each of the General
Terms Agreement, the Consent and the Engine Warranty Assignment
was duly authorized by all necessary corporate action on the part
of the Engine Manufacturer.
(2) Each of the General Terms Agreement, the Consent and
Engine Warranty Assignment has been duly authorized, executed and
delivered by and constitutes a legal, valid and binding obligation of
the Engine Manufacturer, enforceable against the Engine Manufacturer
in accordance with the respective terms thereof, except as the
enforceability thereof may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting the
rights of creditors generally and by general equity principles.
(3) The Engine Product Support Plan insofar as it relates to
the Engine Warranties (as such term is defined in the Engine Warranty
Assignment), constitutes a legal, valid and binding obligation of the
Engine Manufacturer, enforceable against the Engine Manufacturer in
accordance with the terms thereof, except as the enforceability
thereof may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the rights of
creditors generally and by general equity principles.
The foregoing opinions are limited to the laws of the State
of New York and the federal laws of the United States of America, but no
opinion is expressed as to matters governed by the Transportation Code, or
by any other law, statute, rule or regulation of the United States relating
to the acquisition, ownership, registration, use, operation, maintenance,
repair, replacement or sale of aircraft. Further, no opinion is expressed
as to title to any engines or other property.
This opinion is furnished by me at your request for your
sole benefit and no other person or entity shall be entitled to rely on
this opinion without our express written consent. My opinion is limited to
the matters stated herein and no opinion is implied or may be inferred
beyond the matters expressly stated herein.
Very truly yours,
David L. Lloyd, Jr.
SCHEDULE A
Lessee
Federal Express Corporation
2007 Corporate Avenue
Memphis, Tennessee 38132
Owner Trustee
State Street Bank and Trust Company
of Connecticut, National Association
Two International Place
4th Floor
Boston, Massachusetts 02110
Indenture Trustee, Pass Through Trustee & Subordination Agent
First Security Bank, National Association
79 South Main Street
Salt Lake City, Utah 84111
Owner Participant
PMCC Leasing Corporation
200 First Stamford Place
Stamford, Connecticut 06902
Underwriters
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
First Chicago Capital Markets, Inc.
Corporate Securities
One First National Plaza
Chicago, Illinois 60670
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
J.P. Morgan & Co.
60 Wall Street
New York, New York 10260
Liquidity Provider
Kredietbank N.V., New York Branch
125 West 55th Street
New York, New York 10019
EXHIBIT A(8)
[Letterhead of Clifford Chance]
[Delivery Date]
To The Opinion Addressees referred to in Schedule A hereof
Re: Federal Express Corporation Trust No. N671FE
Ladies and Gentlemen:
We are special French counsel for Airbus Industrie G.I.E.
("Airbus") and AVSA S.A.R.L. ("AVSA") and you have asked for our opinion
in connection with certain transactions contemplated in the Participation
Agreement (Federal Express Corporation Trust No. N671FE), dated as of May
1, 1997 (the "Participation Agreement") among Federal Express Corporation,
as Lessee ("Federal Express"), PMCC Leasing Corporation, as Owner
Participant ("Owner Participant"), State Street Bank and Trust Company of
Connecticut, National Association, not in its individual capacity, except
as otherwise stated, but solely as Owner Trustee ("Owner Trustee"), First
Security Bank, National Association, not in its individual capacity, except
as otherwise stated, but solely as Indenture Trustee ("Indenture Trustee"),
Pass Through Trustee and Subordination Agent, and relating to the Aircraft
to be operated by Federal Express.
This opinion is being delivered pursuant to Section 4.02(m)(x)
of the Participation Agreement.
Capitalized terms used in this opinion and not otherwise
defined shall have the meaning assigned thereto in the Participation
Agreement.
We have examined:
(i) a copy of an Airbus A300-600R Freighter Purchase Agreement
dated as of July 3, 1991 and made between AVSA and Federal
Express with an executed Consent and Guaranty of Airbus of
same date attached thereto, sent to us by facsimile by
AINA Holdings Inc. ("AINA") on April 27, 1994;
(ii) a copy sent to us by facsimile by Davis Polk & Wardwell on
_________________ of an executed Purchase Agreement
Assignment dated as of May 1, 1997 (the "Purchase
Agreement Assignment") made between Federal Express and
the Owner Trustee;
(iii) a copy sent to us by facsimile by AVSA on _________________
of an executed but undated Airbus Industrie Consent and
Agreement to the Purchase Agreement Assignment;
(iv) a copy sent to us by facsimile by AVSA on _________________
of an executed but undated AVSA Consent and Agreement to
the Purchase Agreement Assignment;
(v) a copy sent to us by facsimile by AVSA on _________________
of an executed but undated Warranty Bill of Sale, relating
to the Aircraft and transferring title therein from AVSA
to the Owner Trustee ("AVSA Warranty Bill of Sale");
(vi) a copy sent to us by facsimile by AVSA on _________________
of an executed but undated Airbus Industrie G.I.E.
Warranty, in favour of the Participants (the "Airbus
Warranty") warranting AVSA's Warranty Bill of Sale;
(vii) a copy sent to us by facsimile by AVSA on _________________
of an undated FAA Bill of Sale executed by AVSA in favour
of the Owner Trustee;
(viii) a copy sent to us by facsimile by AVSA on May 3, 1995 of an
executed power of attorney dated September 1, 1994 appointing
Messrs. John Leahy and Michel Dechelotte, acting singly, as
attorneys-in-fact of Mr. Jean Pierson, Managing Director
("Administrateur Gerant") of Airbus;
(ix) a copy sent to us by facsimile by AVSA on September 15, 1995
of an executed power of attorney dated August 16, 1995
appointing J.C Mauries as attorney-in-fact of Mr. Jean
Pierson, Managing Director ("Administrateur Gerant") of
Airbus;
(x) a copy sent to us by facsimile by AVSA on September 15, 1995
of an executed power of attorney dated August 16, 1995
appointing Xavier de Rouville as attorney-in-fact of Mr.
Jean Pierson, Managing Director ("Administrateur Gerant")
of Airbus;
(xi) a copy sent to us by courier by AVSA on September 15, 1995 of
an executed power of attorney dated August 1, 1995
appointing Ms. Michele Lascaux and Mr. Etienne O. de
Coninck, acting singly, as attorneys-in-fact of Mr.
Christophe Mourey, Chief Executive Officer ("Gerant") of
AVSA; and
(xii) a copy sent to us by courier by AVSA on September 15, 1995
of an executed power of attorney dated August 1, 1995
appointing Ms. Marie-Pierre Merle-Beral and Michele
Lascaux, Messrs. Jacques Debeaulieu, Sylvain Lebeuf,
Philippe Martin, Rainer von Borstel and Alain Rochet,
acting singly, as attorneys-in-fact of Mr. Christophe
Mourey, Chief Executive Officer ("Gerant") of AVSA.
(the documents referred to in paragraphs (i) to (xii) being referred to herein
as the "Documents").
Based on the foregoing, and such other documents, records
and other instruments as we have deemed necessary or appropriate for the
purpose of this opinion, and assuming the Documents to have been duly
executed by the parties thereto (other than Airbus and AVSA), the
genuineness of all signatures and the completeness and conformity to the
originals of all documents supplied to us as copies or as facsimiles, we
are of the opinion that, subject to the qualifications set out below:
1. Airbus is a groupement d'interet economique duly organized and
existing under the laws of the French Republic, and has the
power and authority to carry on its business as now conducted.
The present members of Airbus are (i) Aerospatiale, Societe
Nationale Industrielle, (ii) Daimler-Benz Aerospace Airbus
GmbH, (iii) British Aerospace (Operations) Ltd. and (iv)
Construcciones Aeronauticas S.A., and each of such corporations
is, without the need to proceed against any collateral security
for the indebtedness of Airbus or to take any other legal
action or process (except for service on Airbus by huissier of
notice to perform and subsequent failure by Airbus to do so),
jointly and severally liable with the other members for the
debts of Airbus arising out of obligations contracted by Airbus
while such corporation is a member of Airbus.
2. AVSA is a societe a responsabilite limitee duly established
and existing under the laws of the French Republic and has
the power and authority to carry on its business as now
conducted.
3. Each of Airbus and AVSA has full power and authority to enter
into and to execute, deliver and perform its obligations under
those of the Documents to which it is a party; such obligations
are legal, valid and binding upon them respectively, are
enforceable in accordance with their respective terms and rank
pari passu with the other unsecured obligations of Airbus or
AVSA, as the case may be.
4. All actions, authorizations, approvals, consents, conditions
and things required at law to be taken, fulfilled and done
to authorize the execution, delivery and performance by
Airbus and AVSA of those of the Documents to which they
respectively are party have been taken, obtained, fulfilled
and done; and no consents under any exchange control, laws,
rules or regulations of the French Republic are necessary in
connection therewith.
5. Neither the execution and delivery and performance of the
Documents to which Airbus and AVSA respectively are a party,
nor the consummation of the transactions contemplated
thereby, contravenes or violates any law, governmental rule
or regulation applicable to or binding on Airbus or AVSA.
6. The choice of the laws of the State of New York to govern the
Documents (which are expressed to be so governed) is valid
under the laws of the French Republic, and a French court
would uphold such choice of law in any suit on the Documents
brought in a French court.
7. Under the laws of the French Republic, Airbus and AVSA are
subject to private commercial law and to suit, and neither
Airbus nor AVSA, nor their respective properties have any
immunity from the jurisdiction of any court or any legal
process (whether through service of notice, attachment prior to
notice, attachment prior to judgment, attachment in aid of
execution, execution or otherwise), except that:
(a) to the extent that Airbus or AVSA occupies or possesses
any property by virtue of any license or grant from the
French State, such property and the title of Airbus or
AVSA thereto may be immune from suit or execution on the
grounds of sovereignty, and
(b) suit and execution against Airbus and AVSA or their
respective property may be affected by action taken by
the French public authorities in the interests of
national defence or on the occurrence of exceptional
circumstances of paramount importance to the national
interest of France, as such concept is understood
under the Constitution, laws and regulations of
France.
8. No French value added tax is due upon the transfer of title of
the Aircraft from AVSA to State Street Bank and Trust
Company of Connecticut, National Association as Owner
Trustee.
9. In connection with the obligations of Airbus and AVSA under the
Documents, this opinion must be read subject to the following
qualifications and observations as to French law:
(a) the remedy of specific performance may not be available
in a French court;
(b) the enforcement against Airbus of any of the Documents to
which it is a party may be limited by applicable
bankruptcy, insolvency, arrangement, moratorium or
similar laws relating to or affecting the enforcement of
creditors' rights generally, as such laws are applied to
Airbus. The enforcement against AVSA of any of the
Documents to which it is a party may be limited by such
laws, as such laws are applied to AVSA. The enforcement
against any member of Airbus of any obligation of Airbus
contained in the Documents may be limited by such laws,
as such laws are applied to such member;
(c) in respect of payment obligations, a French court has
power under Article 1244-1 of the French Civil Code to
grant time to a debtor (not in excess of two years),
taking into account the position of the debtor and the
needs of the creditor;
(d) in order to ensure the validity as against third parties
of the assignment made in the Purchase Agreement
Assignment, it is necessary that notice of such
assignment be served on Airbus and AVSA by "huissier" in
accordance with the provisions of Article 1690 of the
French Civil Code;
(e) in the event of any proceedings being brought in a
French court in respect of a monetary obligation
expressed to be payable in a currency other than
French Francs, a French court would probably give
judgment expressed as an order to pay, not such
currency, but its French Franc equivalent at the time
of payment or enforcement of judgment. With respect
to a bankruptcy, insolvency, liquidation, moratorium,
reorganization, reconstruction or similar proceedings,
French law may require that all claims or debts be
converted into French Francs at an exchange rate
determined by the court at a date related thereto,
such as the date of commencement of a winding-up;
(f) a determination or certificate as to any matter provided
for in the Documents might be held by a French court not
to be final, conclusive or binding, if such determination
or certificate could be shown to have an unreasonable,
incorrect or arbitrary basis or not to have been given or
made in good faith;
(g) claims may become barred by effluxion of time or may be
or become subject to defence of set-off or
counterclaim;
(h) provisions in any Document providing that it or any
other Documents may be amended or varied or any
provision thereof waived only by an instrument in
writing may not be effective;
(i) a French court may stay proceedings if concurrent
proceedings are being brought elsewhere;
(j) we express no opinion as to whether any provision in the
Documents conferring a right of set-off or similar
right would be effective against a liquidator or a
creditor; and
(k) our opinion as to the enforceability of the Documents
relates only to their enforceability in France in
circumstances where the competent French court has and
accepts jurisdiction. The term "enforceability" refers
to the legal character of the obligations assumed by the
parties under the documents, i.e., that they are of a
character which French law enforces or recognizes. It
does not mean that the Documents will be enforced in all
circumstances or in foreign jurisdictions or by or
against third parties or that any particular remedy will
be available.
(l) Article 899 of the French Tax Code provides that
agreements evidencing an undertaking to pay a sum of
money are subject to stamp tax ("droit de timbre") of a
nominal amount if made in the French Republic, if made in
a foreign country, such agreements are subject to a stamp
tax of a nominal amount before certain use thereof can be
made in the French Republic (Article 897 of the French
Tax Code). However non-payment of such stamp tax does
not affect the legality, validity or enforceability of
the agreements.
In rendering the foregoing opinions, we have assumed that the
Documents (expressed to be governed by New York law) constitute the legal,
valid and binding obligations of the parties under New York law.
We are qualified as French Avocats.
No opinion is expressed herein as to laws other than the
laws of the French Republic as of the date hereof. This opinion is for
your use and that of no one else, and is limited to (i) the matters
specifically mentioned herein, and (ii) the purpose set out above.
Very truly yours,
Clifford Chance
SCHEDULE A
Lessee
Federal Express Corporation
2007 Corporate Avenue
Memphis, Tennessee 38132
Owner Trustee
State Street Bank and Trust Company
of Connecticut, National Association
Two International Place
4th Floor
Boston, Massachusetts 02110
Indenture Trustee, Pass Through Trustee & Subordination Agent
First Security Bank, National Association
79 South Main Street
Salt Lake City, Utah 84111
Owner Participant
PMCC Leasing Corporation
200 First Stamford Place
Stamford, Connecticut 06902
Underwriters
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
First Chicago Capital Markets, Inc.
Corporate Securities
One First National Plaza
Chicago, Illinois 60670
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
J.P. Morgan & Co.
60 Wall Street
New York, New York 10260
Liquidity Provider
Kredietbank N.V., New York Branch
125 West 55th Street
New York, New York 10019
EXHIBIT A(9)
[Letterhead of Daugherty, Fowler & Peregrin]
[Delivery Date]
To the Parties Named on Schedule A attached hereto
Re: Federal Express Corporation Trust No. N671FE
Ladies and Gentlemen:
This opinion is furnished to you pursuant to Section
4.02(d)(iii) of the Participation Agreement (Federal Express Corporation
Trust No. N671FE), dated as of May 1, 1997 (the "Participation Agreement")
among Federal Express Corporation, as Lessee (the "Lessee"), PMCC Leasing
Corporation, as Owner Participant (the "Owner Participant"), State Street
Bank and Trust Company of Connecticut, National Association, not in its
individual capacity, except as otherwise stated, but solely as Owner
Trustee ("Owner Trustee"), First Security Bank, National Association, not
in its individual capacity, except as otherwise stated, but solely as
Indenture Trustee ("Indenture Trustee"), Pass Through Trustee and
Subordination Agent, with respect to that portion of Subtitle VII of Title
49 of the United States Code relative to the recordation of instruments and
the registration of aircraft thereunder.
The capitalized terms herein shall, unless otherwise
defined, have the same meanings given them in the Participation Agreement
or in Annex I attached hereto.
We have examined and filed on this date with the Federal
Aviation Administration (the "FAA") the following described instruments at
the respective times listed below:
(a) AC Form 8050-2 Aircraft Bill of Sale dated
_____________ (the "FAA Bill of Sale") from AVSA, as
seller, conveying title to the Airframe to the Owner
Trustee, which FAA Bill of Sale was filed at ____
_.m., C._.T.;
(b) AC Form 8050-1 Aircraft Registration Application dated
_____________ (the "Aircraft Registration
Application") by the Owner Trustee, as applicant,
covering the Airframe, which Aircraft Registration
Application was filed at ____ _.m., C._.T.;
(c) Affidavit of the Owner Trustee dated _____________ (the
"Owner Trustee Affidavit") pursuant to Section
47.7(c)(2)(ii) of Part 47 of the Federal Aviation
Regulations together with Affidavit of the Owner
Participant dated _____________ (the "Owner
Participant Affidavit") attached thereto, which Owner
Trustee Affidavit with the Owner Participant Affidavit
attached was filed at ____ _.m., C._.T.;
(d) executed counterpart of Trust Agreement (Federal Express
Corporation Trust No. N671FE) dated as of May 1, 1997
(the "Trust Agreement") between the Owner Participant
and the Owner Trustee, which Trust Agreement was filed
at ____ _.m., C._.T.;
(e) executed counterpart of Trust Indenture and Security
Agreement (Federal Express Corporation Trust No.
N671FE) dated as of May 1, 1997 (the "Trust
Indenture") between the Owner Trustee and the
Indenture Trustee, with executed counterpart of
Indenture and Security Agreement Supplement No. 1
(Federal Express Corporation Trust No. N671FE) dated
_____________ (the "Trust Indenture Supplement") by
the Owner Trustee, covering the Aircraft, attached
thereto, which Trust Indenture with the Trust
Indenture Supplement attached was filed at ____ _.m.,
C._.T.; and,
(f) executed counterpart of Lease Agreement (Federal Express
Corporation Trust No. N671FE) dated as of May 1, 1997
(the "Lease") between the Owner Trustee, as lessor,
and the Lessee, with executed counterparts of the
following attached thereto: (i) Lease Supplement No.
1 (Federal Express Corporation Trust No. N671FE)
dated _____________ (the "Lease Supplement") between
the Owner Trustee, as lessor, and the Lessee, covering
the Aircraft; (ii) the Trust Indenture; and (iii) the
Trust Indenture Supplement, which Lease with the
foregoing attachments (collectively, the "Lease
Attachments") attached was filed at ____ _.m., C._.T.
The Confidential Omissions were intentionally omitted from
the FAA filing counterparts of the Lease and the Trust Indenture as
containing confidential financial information.
Based upon our examination of the above described
instruments and of such records of the FAA as we deemed necessary to render
this opinion, it is our opinion that:
1. the FAA Bill of Sale, the Trust Indenture with the Trust
Indenture Supplement attached and the Lease with the
Lease Attachments attached are in due form for
recordation by and have been duly filed for
recordation with the FAA pursuant to and in accordance
with the provisions of 49 U.S.C. Section 44107;
2. the Aircraft Registration Application, the Owner Trustee
Affidavit with the Owner Participant Affidavit
attached and the Trust Agreement are in due form for
filing and have been duly filed with the FAA pursuant
to and in accordance with the provisions of 49 U.S.C.
Section 44103(a) and Section 47.7(c) of the Federal
Aviation Regulations;
3. the Airframe is eligible for registration under 49 U.S.C.
Section 44102 in the name of the Owner Trustee and the
filing with the FAA of the FAA Bill of Sale, the
Aircraft Registration Application, the Owner Trustee
Affidavit with the Owner Participant Affidavit
attached and the Trust Agreement will cause the FAA to
register the Airframe, in due course, in the name of
the Owner Trustee and to issue to the Owner Trustee an
AC Form 8050-3 Certificate of Aircraft Registration
for the Airframe, and the Airframe will be duly
registered pursuant to and in accordance with the
provisions of 49 U.S.C. Section 44103(a);
4. the Owner Trustee has valid legal title to the Airframe
and the Aircraft is free and clear of all Liens,
except (i) the security interest created by the Trust
Indenture, as supplemented by the Trust Indenture
Supplement, and (ii) the rights of the parties under
the Lease, as supplemented by the Lease Supplement;
5. the rights of the Owner Trustee and the Lessee under the
Lease, as supplemented by the Lease Supplement, with
respect to the Aircraft, are perfected;
6. the Trust Indenture, as supplemented by the Trust
Indenture Supplement, constitutes a duly perfected
first priority security interest in the Aircraft and a
duly perfected first assignment of all the right,
title and interest of the Owner Trustee in, to and
under the Lease and the Lease Supplement (insofar as
such assignment affects an interest covered by the
recording system established by the FAA pursuant to 49
U.S.C. Section 44107), and no other registration of
the Airframe or filings other than filings with the
FAA (which have been duly effected) are necessary in
order to perfect in any applicable jurisdiction in the
United States (A) the Owner Trustee's title to the
Airframe or (B) such security interest and assignment
(insofar as such assignment affects an interest
covered by the recording system established by the FAA
pursuant to 49 U.S.C. Section 44107), it being
understood that no opinion is herein expressed as to
the validity, priority or enforceability of such
security interest and assignment under local law or as
to the recognition of the perfection of such security
interest and assignment as against third parties in
any legal proceeding outside the United States;
7. no authorization, approval, consent, license or order of,
or registration with, or the giving of notice to, the
FAA is required for the valid authorization, delivery
and performance of the Lease, as supplemented by the
Lease Supplement, the Trust Indenture, as supplemented
by the Trust Indenture Supplement, or the Trust
Agreement except for such filings as are referred to
above; and,
8. neither the execution and delivery by the Owner
Participant of the Participation Agreement or the
Trust Agreement, nor other consummation of the
transactions contemplated thereby by the Owner
Participant, requires the consent or approval of, or
the giving of notice to, or the registration of, or
the taking of any other action in respect of the FAA,
except (x) the registration of the Airframe, including
the submission of the Aircraft Registration
Application, the Owner Trustee Affidavit, the Owner
Participant Affidavit and the Trust Agreement to the
FAA and (y) the filings for recordation specified
elsewhere in this opinion.
No opinion is expressed as to the Airframe during any period
or periods of time during which it has not been subject to United States
registration.
No opinion is expressed as to laws other than Federal laws
of the United States. In rendering this opinion, we were subject to the
accuracy of the FAA, its employees and agents, in the filing, indexing and
recording of instruments filed with the FAA and in the search for
encumbrance cross-reference index cards for the Engines. Further, in
rendering this opinion we are assuming the validity and enforceability of
the above described instruments under local law. Since our examination was
limited to records maintained by the FAA, our opinion does not cover liens
which are perfected without the filing of notice thereof with the FAA, such
as federal tax liens, liens arising under Section 1368(a) of Title 29 of
the United States Code, possessory artisan's liens, or matters of which the
parties had actual notice. In rendering this opinion we are assuming that
there are no documents with respect to the Aircraft which have been filed
for recording under the recording system of the FAA but have not yet been
listed in the available records of such system as having been so filed.
In rendering this opinion we have relied upon the opinion of
the Assistant Chief Counsel of the Aeronautical Center dated _____________,
a copy of which is attached hereto.
Very truly yours,
Robert M. Peregrin
For the Firm
Annex I
Certain Definitions
Airframe, Engines and Aircraft
One (1) Airbus Industrie A300F4-605R aircraft bearing
manufacturer's serial number 778 and U.S. Registration No. N671FE (the
"Airframe") and two (2) General Electric CF6-80C2-A5F aircraft engines
bearing manufacturer's serial numbers ___-___ and ___-___ (the "Engines")
(the Airframe and the Engines are referred to collectively as the
"Aircraft").
Confidential Omissions
The Lease was filed with the FAA, with (i) the Basic Rent
(Schedule II), (ii) the Stipulated Loss Values (Schedule III), (iii) the
Termination Values (Schedule IV) and (iv) the Purchase Option Schedule
(Schedule V) omitted from the FAA filing counterpart thereof as containing
confidential financial information; and (v) the purchase price under Section
4.02(a)(F) set forth in Ancillary Agreement II, which was not attached to the
FAA filing counterpart of the Lease or otherwise filed with the FAA for
recordation.
SCHEDULE A
Lessee
Federal Express Corporation
2007 Corporate Avenue
Memphis, Tennessee 38132
Owner Trustee
State Street Bank and Trust Company
of Connecticut, National Association
Two International Place
4th Floor
Boston, Massachusetts 02110
Indenture Trustee, Pass Through Trustee & Subordination Agent
First Security Bank, National Association
79 South Main Street
Salt Lake City, Utah 84111
Owner Participant
PMCC Leasing Corporation
200 First Stamford Place
Stamford, Connecticut 06902
Underwriters
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
First Chicago Capital Markets, Inc.
Corporate Securities
One First National Plaza
Chicago, Illinois 60670
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
J.P. Morgan & Co.
60 Wall Street
New York, New York 10260
Liquidity Provider
Kredietbank N.V., New York Branch
125 West 55th Street
New York, New York 10019
EXHIBIT B
[FORM OF LEASE AGREEMENT]
[See Exhibit 4.e]
EXHIBIT C
[FORM OF INDENTURE]
[See Exhibit 4.b.1]
EXHIBIT D
[FORM OF TRUST AGREEMENT]
[See Exhibit 4.d]
EXHIBIT E
[FORM OF PURCHASE AGREEMENT ASSIGNMENT, AIRBUS CONSENT AND
AVSA CONSENT]
[See Exhibit B to Lease Agreement under Exhibit 4.e]
EXHIBIT F
[FORM OF ENGINE WARRANTY ASSIGNMENT AND ENGINE CONSENT]
[See Exhibit C to Lease Agreement under Exhibit 4.e]
EXHIBIT G-1
FORM OF ASSIGNMENT AND ASSUMPTION AGREEMENT
BENEFICIAL INTEREST TRANSFER AGREEMENT (this "Document"),
dated as of _______ __, ____, between ______________, a ______________
corporation ("Transferor") and ______________, a ______________ corporation
("Transferee").
W I T N E S S E T H :
WHEREAS, the parties hereto desire to effect (a) the
transfer by Transferor to Transferee of all of the rights, title and interest
of Transferor in and to its interest (the "Beneficial Interest") under the
Trust Agreement (Federal Express Corporation Trust No. N671FE), dated as of
May 1, 1997 (as heretofore amended, the "Trust Agreement"), between Transferor
and State Street Bank and Trust Company of Connecticut, National Association,
and the Lessor's Estate created thereunder, and all of Transferor's rights and
obligations under the Participation Agreement (Federal Express Corporation
Trust No. N671FE), dated as of May 1, 1997 (the "Participation Agreement"),
among Federal Express Corporation, as Lessee, State Street Bank and Trust
Company of Connecticut, National Association, not in its individual capacity,
except as otherwise stated therein, but solely as Owner Trustee, PMCC Leasing
Corporation, as Owner Participant, First Security Bank, National Association,
not in its individual capacity, except as otherwise stated therein, but solely
as Indenture Trustee, First Security Bank, National Association, not in its
individual capacity, except as otherwise stated therein, but solely as Pass
Through Trustee and First Security Bank, National Association, as
Subordination Agent, and under the other Operative Agreements and (b) the
acceptance by Transferee of such transfer and the assumption by Transferee of
such obligations of Transferor thereunder; and
WHEREAS, Section 7.03(d) of the Participation Agreement
permits such transfer and assumption upon satisfaction of certain conditions
heretofore or concurrently herewith being observed;
NOW, THEREFORE, in consideration of the premises and of
the mutual covenants and agreements herein contained, the parties hereto agree
as follows:
1. Definitions. Capitalized terms used herein without
definition shall have the respective meanings ascribed thereto in the
Participation Agreement.
2. Transfer. Transferor does hereby sell, convey,
assign, transfer and set over, unto Transferee, as of the Effective Time (as
defined below), all of Transferor's present and future right, title and
interest in and to (a) all of the Beneficial Interest and (b) all of the Owner
Participant's rights and obligations under the Participation Agreement, the
Tax Indemnity Agreement, the Trust Agreement and the other Operative
Agreements and any proceeds therefrom, together with all other documents and
instruments evidencing any of such right, title and interest, except such
rights of Transferor as have arisen or accrued to Transferor prior to the
Effective Time (including without limitation, the right to receive any amounts
due or accrued to Transferor under the Operative Agreements as of a time prior
to the Effective Time and the right to receive any indemnity payment pursuant
to the Participation Agreement or the Tax Indemnity Agreement, with respect to
events occurring prior to such time); all of the foregoing that is being
transferred under this paragraph 2, the "Transferred Interest".
3. Assumption. Transferee hereby accepts the transfer
of the Transferred Interest and, for the benefit of Transferor and the other
parties to the Participation Agreement, assumes and undertakes and agrees to
perform and discharge all of the duties and obligations of Transferor with
respect to the Transferred Interest whenever and wherever accrued (other than
duties and obligations of Transferor required to be performed by it on or
prior to the Effective Time). Transferee hereby confirms that, from and after
the Effective Time, Transferee (a) shall be deemed, to the extent set forth in
Section 2 hereof, the "Owner Participant" party to the Participation
Agreement, the Tax Indemnity Agreement, the Trust Agreement and the other
Operative Agreements and (b) shall be bound by all of the terms of the
Operative Agreements to the extent the same relate to the Transferred
Interest.
4. Release of Transferor. At the Effective Time,
Transferor shall be relieved of all of its duties and obligations with respect
to the Transferred Interest under the Operative Agreements, provided, however,
that Transferor shall in no event be released from any such duty or
obligations arising or relating to any event occurring prior to the Effective
Time, or on account of any breach by Transferor of any of its representations,
warranties, covenants or obligations set forth in the Operative Agreements, or
for any fraudulent or willful misconduct engaged in by it prior to the
Effective Time, or from any obligation that relates to any indemnity claimed
by Transferor or any Lessor's Lien attributable to Transferor.
5. Fees and Expenses. The fees, expenses and charges
of the parties to the Participation Agreement incurred in connection with the
transfer effected hereby shall be for the account of [specify
Transferor/Transferee].
6. Payments. Transferor hereby covenants and agrees
to pay over to Transferee, if and when received following the Effective
Time, any amounts (including any sums payable as interest in respect
thereof) paid on account of the Transferred Interest to or for the benefit
of Transferor, and Transferee hereby covenants and agrees to pay over to
Transferor, if and when received following the Effective Time, any amounts
(including any sums payable as interest in respect thereof) paid to or for
the benefit of Transferee that are not attributable to the Transferred
Interest and to which Transferor is otherwise entitled.
7. Investment Purpose. Transferee hereby represents
and warrants that, as of the date hereof, it is acquiring the Transferred
Interest for its account with no present intention of distributing such
Transferred Interest or any part thereof in any manner which would violate
the Securities Act of 1933, as amended, but without prejudice, however, to
the right of Transferee at all times to sell or otherwise dispose of all or
any part of such Transferred Interest in compliance with Section 7.03(d) of
the Participation Agreement.
8. Representations and Warranties of Transferor.
Transferor represents and warrants to Transferee that as of the Effective
Time:
(a) Organization and Power. Transferor is a corporation
duly organized, validly existing and in good standing under the
laws of the State of Delaware and has full corporate power,
authority and legal right to execute, deliver and perform this
Agreement and to enter into and carry out the transactions
contemplated hereby and in the other Operative Agreements (the
"Transactions").
(b) Authorization, Execution and Validity. This Agreement
has been duly authorized, executed and delivered by Transferor and
constitutes the legal, valid and binding obligation of Transferor,
enforceable against it in accordance with its terms except as
enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the rights of
creditors generally and by general principles of equity.
(c) Conflict. The execution, delivery and performance by
Transferor of this Agreement and compliance by Transferor with all
of the provisions hereof do not contravene any regulation or any
order of any governmental authority applicable to or binding on
Transferor, or contravene the provisions, or constitute a default
by Transferor under, its certificate of incorporation or by-laws
or any indenture, mortgage, contract or other agreement or
instrument to which Transferor is a party or by which Transferor
or any of its Properties is bound or affected.
(d) Consents. No consent, approval or authorization of, or
filing, registration or qualification with, or the giving of
notice or the taking of any other action with respect to, any
governmental authority on the part of Transferor is required in
connection with the execution, delivery and performance by
Transferor of this Agreement.
(e) Litigation. There are no proceedings pending or, to
the knowledge of Transferor, threatened against Transferor before
any governmental authority that would materially and adversely
affect the ability of Transferor to consummate the Transactions.
(f) No Liens. The Trust Estate is free of Lessor's Liens
attributable to Transferor.
(g) Compliance with Operative Agreements. Transferor has
fully performed all of its obligations under the Participation
Agreement and under each other Operative Agreement which
obligations by their terms are required to be satisfied or
performed prior to the Effective Time or prior to the consummation
of the Transactions.
(h) Default. As a result of the transfer effected hereby,
no Indenture Default attributable to the Owner Participant or the
Owner Trustee has occurred and is continuing.
Notwithstanding the foregoing or anything else contained in
this Agreement, it makes no representation or warranty in this Agreement
with respect to laws, rules or regulations relating to aviation or to the
nature or use of the equipment owned by the Owner Trustee, including,
without limitation, the airworthiness, value, condition, workmanship,
design, patent or trademark infringement, operation, merchantability or
fitness for use of the Aircraft.
9. Representations and Warranties of Transferee.
Transferee represents and warrants to Transferor and to the other parties
to the Participation Agreement that as of the Effective Time:
(a) Transferee is a corporation duly organized, validly
existing and in good standing under the laws of the State of [ ],
has the full corporate power, authority and legal right to carry
on its business as now conducted, and has full corporate power,
authority and legal right to execute, deliver and perform this
Agreement and to enter into and carry out the transactions
contemplated hereby and in the other Operative Agreements (the
"Transactions");
(b) Transferee has full corporate power, authority and
legal right to execute, deliver and enter into this Agreement and
the other Operative Agreements and full corporate power and
authority to perform its obligations thereunder, and such
execution, delivery and performance do not and will not contravene
any applicable law or any order of any governmental authority
applicable to or binding on the Transferee, or contravene the
provisions of, or constitute a default under, or result in the
creation of any Lien upon the property of the Transferee under,
its articles of incorporation or by-laws or any material
indenture, mortgage, contract or other agreement or instrument to
which the Transferee is a party or by which it or any of its
property may be bound or affected;
(c) the execution, delivery and performance of this
Agreement by the Transferee (i) has been duly authorized by all
necessary corporate action and (ii) does not require any approval
of the shareholders of the Transferee or any approval or consent
of, or notice to, any trustee or holders of any indebtedness or
obligation of the Transferee, except for such approvals and
consents as have already been obtained;
(d) this Agreement has been duly executed and delivered by
the Transferee, and constitutes the legal, valid and binding
obligation of the Transferee, enforceable against the Transferee
in accordance with its terms, except as the same may be limited by
bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting the rights of creditors generally and by general
principles of equity;
(e) there are no proceedings or actions pending or, to the
knowledge of the Transferee, threatened against the Transferee
before any governmental authority in which there is a reasonable
probability of an adverse determination that individually or in
the aggregate would materially and adversely impair the ability of
the Transferee to perform its obligations under this Agreement or
the Operative Agreements, or which involve the Transactions or
question the validity of any Operative Agreement to which the
Owner Participant is a party or any action taken or to be taken
pursuant thereto; and the Transferee is not in default with
respect to any order of any governmental authority which involves
the Transactions or the default under which would materially and
adversely affect the ability of the Transferee to perform its
obligations under this Agreement or any of the Operative
Agreements;
(f) no consent, approval, order or authorization of, giving
of notice to, or registration with, or taking of any other action
in respect of, any governmental authority is required under any
law for the execution and delivery by the Transferee of this
Agreement, or the carrying out by the Transferee of any of the
Transactions, other than any such consent, approval, order,
authorization, registration, notice or action as has been duly
obtained, given or taken;
(g) the Lessor's Estate is free of any Lessor's Liens
attributable to the Transferee;
(h) the Transferee, upon execution of this Agreement, will
not be in default under any of the Operative Agreements;
(i) no part of the funds to be used by it to acquire the
interests acquired by the Owner Participant under the
Participation Agreement constitutes assets (within the meaning of
ERISA and any applicable rules and regulations) of any employee
benefit plan subject to Title I of ERISA or of any plan or
individual retirement account subject to Section 4975 of the Code;
(j) Transferee is a "U.S. Person" as defined in Section
7701(a)(30) of the Code and is not a tax resident of another
country and if it shall at any time cease to be such a "U.S.
Person" or shall become a tax resident of another country, it
shall furnish to the Agent and each Certificate Holder an
indemnity, in form and substance reasonably satisfactory to such
Certificate Holder, for any Taxes that may be imposed on such
Holder as a result of its failure to be such a "U.S. Person" or
as a result of its being a tax resident of another country, and it
shall be personally liable for any debt service to the extent that
the receipt of rentals is reduced by reason of any withholding
Taxes that result from such failure to be such a "U.S. Person" or
from being a tax resident of another country;
(k) [After giving effect to a voting trust or similar
agreement(*), Transferee is a Citizen of the United States]
[applicable if Aircraft is registered in the United States or is
proposed to be so registered]
- ------------
(*) Such voting trust or similar agreement must be reasonably satisfactory
to the Lessor and the Indenture Trustee.
(l) On and as of the Effective Date, the representations
and warranties of the Owner Participant in Article 7 of the
Participation Agreement are true and correct as to the Transferee;
and
(m) Transferee satisfies the conditions applicable to a
transferee of the Beneficial Interest set forth in Section 7.03(d)
of the Participation Agreement, including without limitation, the
condition set forth in the last sentence thereof [and to the
extent the same has been requested by the Lessee or the Indenture
Trustee, Transferee has heretofore provided to the Lessee and the
Indenture Trustee its most recent audited financial statements,
which show a consolidated tangible net worth or combined capital
and surplus of at least $75,000,000] [remove bracketed language if
an Owner Participant Guaranty is provided].
(n) the Transferee has, independently and without reliance
upon any other party (including without limitation the Transferor)
and based on such documents and information as it has deemed
appropriate, made its own credit analysis and decision to enter
into this Agreement, and the Transferee has established adequate
means of obtaining from Lessee on a continuing basis information
pertaining to, and is now and on a continuing basis will be
completely familiar with, the financial condition, operations,
properties and prospects of Lessee.
Notwithstanding the foregoing or anything else contained in
this Agreement, it makes no representation or warranty in this Agreement
with respect to laws, rules or regulations relating to aviation or to the
nature or use of the equipment owned by the Owner Trustee, including,
without limitation, the airworthiness, value, condition, workmanship,
design, patent or trademark infringement, operation, merchantability or
fitness for use of the Aircraft, other than such laws, rules or regulations
relating to the citizenship requirements of it under applicable aviation
law.
10. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. 11.
Effectiveness. This Agreement shall be effective upon the mutual execution
and delivery of this Agreement (the "Effective Time").
12. Counterparts. This Agreement may be executed in
any number of counterparts, all of which together shall constitute a single
instrument. It shall not be necessary that any counterpart be signed by
both parties so long as each party shall sign at least one counterpart.
13. Beneficiaries. Each of the Owner Trustee, the
Indenture Trustee, the Pass Through Trustee and the Lessee, together with
their respective successors and permitted assigns, is and shall be deemed a
third party beneficiary of this Agreement entitled to enforce this
Agreement directly and in its own name and enforce any rights or claims of
the parties hereto.
14. Further Assurances. Each party agrees that from
time to time after the Effective Time, it shall execute and deliver or
cause to be executed and delivered such instruments, documents and papers,
and take all such further action as may be reasonably required in order to
consummate fully the purposes of this Agreement and to implement the
transactions contemplated hereby.
IN WITNESS WHEREOF, the parties hereto have executed
this Agreement as of the day and year first above written.
[TRANSFEROR]
By:___________________________
Name:
Title:
[TRANSFEREE]
By:___________________________
Name:
Title:
EXHIBIT G-2
FORM OF OWNER PARTICIPANT GUARANTY
TRANSFEREE'S PARENT GUARANTY, dated as of ___________
__, ____, (this "Guaranty") by ____________________, a ___________
corporation (the "Guarantor"), to State Street Bank and Trust Company of
Connecticut, National Association, in its individual capacity and as Owner
Trustee, First Security Bank, National Association, as Indenture Trustee
and Pass Through Trustee, and Federal Express Corporation, as Lessee
(collectively, together with their successors and assigns and the holders
from time to time of the Certificates, the "Beneficiaries").
W I T N E S S E T H :
WHEREAS, ___________, a ____________ corporation (the
"Transferor"), is party to the Participation Agreement (Federal Express
Corporation Trust No. N671FE), dated as of May 1, 1997 (as amended,
modified or supplemented from time to time, the "Participation Agreement"),
among Federal Express Corporation, as Lessee, PMCC Leasing Corporation, as
Owner Participant, State Street Bank and Trust Company of Connecticut,
National Association, not in its individual, except as otherwise stated
therein, but solely as Owner Trustee, First Security Bank, National
Association, not in its individual, except as otherwise stated therein, but
solely as Indenture Trustee, First Security Bank, National Association, not
in its individual, except as otherwise stated therein, but solely as Pass
Through Trustee and First Security Bank, National Association, as
Subordination Agent; and
WHEREAS, the Transferor wishes to transfer, among
other things, all of the rights, title and interest of the Transferor in
and to the Beneficial Interest under the Trust Agreement and the Lessor's
Estate created thereunder, and all of the Transferor's rights and
obligations under the Participation Agreement, the Trust Agreement and the
other Operative Agreements to __________________, a _______________
[corporation] (together with its successors and assigns, the "Transferee"),
a subsidiary of the Guarantor, pursuant to the Beneficial Interest Transfer
Agreement, dated as of the date hereof (the "Transfer Agreement"), between
the Transferor and the Transferee; and
WHEREAS, the terms of the Participation Agreement
provide that the aforementioned transfer is conditioned upon the execution
and delivery of this Guaranty by the Guarantor;
NOW, THEREFORE, in order that the Transferor may make
the aforementioned transfer to the Transferee, the Guarantor hereby agrees
with and for the benefit of the Beneficiaries as follows:
1. Definitions. Capitalized terms used herein
without definition shall have the respective meanings assigned thereto in
the Participation Agreement or the Transfer Agreement.
2. Guaranty. The Guarantor hereby unconditionally
and irrevocably guarantees, as primary obligor and not merely surety, to
the Beneficiaries the prompt and complete payment by the Transferee when
due of all payment obligations of the Transferee under the Operative
Agreements without offset or deduction and the timely performance of all
other obligations of the Transferee thereunder (such payment and other
obligations, the "Obligations"), and the Guarantor further agrees to pay
any and all expenses (including, without limitation, reasonable fees and
expenses of counsel) that may be paid or incurred by the Beneficiaries in
enforcing any rights with respect to, or collecting, any or all of the
Obligations and/or enforcing any rights with respect to, or collecting
against, the Guarantor under this Guaranty.
The Guarantor will not exercise any rights that it may
now or hereafter acquire against Transferee that arise from the existence,
payment, performance or enforcement of the Guarantor's Obligations under
this Guaranty, the Transferred Interest or the Operative Agreements,
including, without limitation, any right of subrogation, reimbursement,
exoneration, contribution or indemnification and any right to participate
in any claim or remedy of any Beneficiary against Transferee or any
collateral, whether or not such claim, remedy or right arises in equity or
under contract, statute or common law, including, without limitation, the
right to take or receive from Transferee, directly or indirectly, in cash
or other property or by set-off or in any other manner, payment or security
on account of such claim, remedy or right, unless and until all of the
Obligations have been performed in full and all other amounts payable under
this Guaranty shall have been paid in full in cash. If any amount shall be
paid to the Guarantor in violation of the preceding sentence at any time
prior to the final payment in full in cash of the Obligations and all other
amounts payable under this Guaranty, such amount shall be held in trust for
the benefit of any Beneficiary and shall forthwith be paid to such
Beneficiary to be credited and applied to the Obligations and all other
amounts payable under this Guaranty, whether matured or unmatured, in
accordance with the terms of the Operative Agreements, or to be held as
collateral for any Obligations or other amounts payable under this Guaranty
thereafter arising.
3. No Subrogation. Notwithstanding anything to the
contrary in this Guaranty, the Guarantor hereby agrees not to assert any
rights which may have arisen in connection with this Guaranty to be
subrogated to any of the rights (whether contractual, under the Bankruptcy
Code, under common law or otherwise) of any Beneficiary against the
Transferee for the payment of the Obligations until all of the Obligations
shall have been satisfied by payment and performance in full.
4. Amendments with Respect to the Obligations;
Waiver of Rights. The Guarantor shall remain fully obligated hereunder
notwithstanding that, without any reservation of rights against the
Guarantor and without notice to or further assent by the Guarantor, any
demand for payment or performance of any of the Obligations made by any
Beneficiary may be rescinded by such party and any of the obligations
continued, and the Obligations, may, from time to time, in whole or part,
be renewed, extended, amended, modified, accelerated, compromised, waived,
surrendered or released by any Beneficiary and any Operative Agreement may
be amended, modified, supplemented or terminated, in whole or in part, in
accordance with the provisions thereof from time to time. When making any
demand hereunder against the Guarantor, a Beneficiary may, but shall be
under no obligation to, make a similar demand on the Transferee, and any
failure by a Beneficiary to make any such demand or to collect any payments
from the Transferee or any release of the Transferee shall not relieve the
Guarantor of its obligations or liabilities hereunder, and shall not impair
or affect the rights and remedies, express or implied, or as a matter of
law, of any Beneficiary against the Guarantor. For the purposes hereof,
"demand" shall include the commencement and continuance of any legal
proceedings. The Guarantor represents and warrants that it is the parent
of the Transferee, and agrees that its obligations hereunder shall continue
unimpaired, even if the Guarantor is no longer an Affiliate of the
Transferee.
5. Guaranty Absolute and Unconditional. The
Guarantor guarantees that the Obligations will be paid and performed
strictly in accordance with the terms of the Transfer Agreement and the
Operative Agreements, regardless of any law, regulation or order now or
hereafter in effect in any jurisdiction affecting any such terms or the
rights of any Beneficiary with respect thereto. The obligations of the
Guarantor under this Guaranty are independent of the Obligations or any
other obligations of any other party, and a separate action or actions may
be brought and prosecuted against the Guarantor to enforce this Guaranty,
irrespective of whether the Transferee or any other party is joined in any
such action or actions. The Guarantor waives any and all notice of the
creation, renewal, extension or accrual of any of the Obligations and
notice of or proof of reliance by any Beneficiary upon this Guaranty or
acceptance of this Guaranty; the Obligations, and any of them, shall
conclusively be deemed to have been created, contracted or incurred, or
renewed, extended, amended or waived, in reliance upon this Guaranty; and
all dealings between the Transferee or the Guarantor and any Beneficiary
shall likewise be conclusively presumed to have been had or consummated in
reliance upon this Guaranty. The Guarantor waives, to the fullest extent
permitted by applicable law, diligence, presentment, promptness, protest,
mitigation of damages by the Beneficiaries demand for payment and notice of
default or nonpayment to or upon the Transferee or the Guarantor with
respect to the Obligations. The Guarantor further waives any right to
revoke this Guaranty, and acknowledges that this Guaranty is continuing in
nature and applies to all Obligations, whether existing now or in the
future. The Guarantor understands and agrees that, to the fullest extent
permitted by applicable law, this Guaranty shall be construed as a
continuing, absolute and unconditional guaranty of payment and performance
(and not merely of collectibility) without regard to:
(a) the validity, regularity or enforceability of the
Transfer Agreement, any Operative Agreement, or any of the
Obligations at any time or from time to time held by any
Beneficiary;
(b) any defense, set-off, rebate, adjustment, withholding,
deduction or counterclaim (other than a defense of payment or
performance) that may at any time be available to or be asserted
by the Transferee against any Beneficiary or any agreement or
instrument relating thereto or;
(c) any change in the time, manner or place of payment of,
or in any other term of, all or any of the obligations or any
other obligations of any other party under the Transfer Agreement,
the Operative Agreements, or any other amendment or waiver of or
any consent to departure from the Transfer Agreement or other
Operative Agreements;
(d) any taking, release or amendment or waiver of or consent
to departure from any other guaranty, for all or any of the
Obligations;
(e) any change, restructuring or termination of the
corporate structure or existence of the Guarantor or the
Transferee or any of the Affiliates of either;
(f) any defect in the title, condition, design, operation or
fitness of, or any interference with the operation, use or
possession of, the Aircraft;
(g) any failure to establish, perfect or preserve title to
or any security interest in or to the Aircraft or any other
collateral security for the Obligations; or
(h) any other circumstance whatsoever or any existence of or
reliance on any representation by any Beneficiary that might
otherwise constitute a defense available to, or a discharge of,
the Guarantor or any other guarantor or surety.
When pursuing its rights and remedies hereunder against the
Guarantor, any Beneficiary may, but shall be under no obligation to, pursue
such rights and remedies as it may have against the Transferee for the
Obligations, and any failure by any Beneficiary to pursue such other rights
or remedies or to collect any payments from the Transferee, or any release
of the Transferee, shall not, to the fullest extent permitted by applicable
law, relieve the Guarantor of any liability hereunder, and shall not impair
or affect the rights and remedies, whether express, implied or available as
a matter of law, of any Beneficiary against the Guarantor. This Guaranty
is a continuing guaranty and shall remain in full force and effect until
the earlier of (x) the date that all of the Obligations are satisfied by
payment and performance in full and (y) the date that all right, title and
interest of the Transferee shall have been transferred to a Person meeting
the requirements of Section 7.03(d) of the Participation Agreement in
accordance with said section; provided that this Guaranty shall remain in
full force and effect with respect to obligations relating to the period
prior to such transfer.
6. Reinstatement. This Guaranty shall continue to be
effective, or be reinstated, as the case may be, if at any time payment, or
any part thereof, of any of the Obligations is rescinded or must otherwise
be restored or returned by any Beneficiary upon the insolvency, bankruptcy
dissolution, liquidation or reorganization of the Transferee or the
Guarantor, or upon or as a result of the appointment of a receiver,
intervenor or conservator of, or trustee or similar officer for, the
Transferee or the Guarantor or any substantial part of its property, or
otherwise, all as though such payments had not been made and the Guarantor
agrees that it will indemnify any such Beneficiary on demand for all
reasonable costs and expenses (including, without limitation, reasonable
fees and expenses of counsel) by such Beneficiary in connection with such
rescission or restoration.
7. Payments. The Guarantor hereby guarantees that
payments hereunder shall be paid without set-off, counterclaim, deduction,
rebate, adjustment or withholding, and shall be made in U.S. Dollars in
immediately available funds.
8. Representations and Warranties. The Guarantor
hereby represents and warrants that:
(a) the Guarantor is a corporation duly organized, validly
existing and in good standing under the laws of the jurisdiction
of its incorporation and the Transferee is currently a subsidiary
of the Guarantor;
(b) the Guarantor has the power and authority and the legal
right to execute and deliver, and to perform its obligations
under, this Guaranty, and has taken all necessary corporate action
to authorize its execution, delivery and performance of this
Guaranty;
(c) this Guaranty constitutes a legal, valid and binding
obligation of the Guarantor enforceable in accordance with its
terms, except as enforceability may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting
the enforcement of creditors' rights generally;
(d) the execution, delivery and performance of this Guaranty
will not violate any provision of any requirement of law or
contractual obligation of the Guarantor or any of its constitutive
documents;
(e) no consent or authorization of, filing with, or other
act by or in respect of, any arbitrator or governmental authority
and no consent of any other person is required in connection with
the execution, delivery, performance, validity or enforceability
of this Guaranty;
(f) the Guarantor is a [a bank, savings institution, finance
company, leasing company or trust company, national banking
association acting for its own account or in a fiduciary capacity
as trustee or agent under any pension, retirement, profit sharing
or similar trust or fund, insurance company, fraternal benefit
society or corporation acting for its own account having a
combined capital and surplus (or, if applicable, consolidated
tangible net worth or its equivalent)] of not less than
$75,000,000 [and has, if the same have been requested by the
Lessee or the Indenture Trustee, heretofore furnished to the
Lessee and the Indenture Trustee copies of its most recent audited
financial statements];
(g) there are no conditions precedent to the effectiveness
of this Guaranty that have not been satisfied or waived; and
(h) the Guarantor has, independently and without reliance
upon any Beneficiary and based on such documents and information
as it has deemed appropriate, made its own credit analysis and
decision to enter into this Guaranty, and the Guarantor has
established adequate means of obtaining from Transferee on a
continuing basis information pertaining to, and is now and on a
continuing basis will be completely familiar with, the financial
condition, operations, properties and prospects of Transferee.
9. Severability. Any provision of this Guaranty that
is prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and
any such prohibition or unenforceability in any jurisdiction shall not
invalidate or render unenforceable such provision in any other
jurisdiction.
10. Jurisdiction; Waiver of Jury Trial, Etc.
(a) The Guarantor hereby irrevocably and
unconditionally submits, for itself and its property, to the nonexclusive
jurisdiction of any New York State court or federal court of the United
States of America sitting in New York, New York, and any appellate court
from any thereof, in any action or proceeding arising out of or relating to
this Guaranty, the Transfer Agreement or any Operative Agreement to which
it is or is to be a party, or for recognition or enforcement of any
judgment, and the Guarantor hereby irrevocably and unconditionally agrees
that all claims in respect of any such action or proceeding may be heard
and determined in any such New York State court or, to the extent permitted
by law, in such federal court. The Guarantor agrees that a final judgment
in any such action or proceeding shall be conclusive and may be enforced in
other jurisdictions by suit on the judgment or in any other manner provided
by law. Nothing in this Guaranty shall affect any right that any party may
otherwise have to bring any action or proceeding relating to this Guaranty,
the Transfer Agreement or any Operative Agreement to which it is or is to
be a party in the courts of any jurisdiction.
(b) The Guarantor irrevocably and unconditionally
waives, to the fullest extent it may legally and effectively do so, any
objection that it may now or hereafter have to the laying of venue of any
suit, action or proceeding arising out of or relating to this Guaranty, the
Transfer Agreement or any Operative Agreement to which it is or is to be a
party in any New York State or federal court. The Guarantor hereby
irrevocably waives, to the fullest extent permitted by law, the defense of
an inconvenient forum to the maintenance of such action or proceeding in
any such court.
11. Section Headings. The Section headings used in
this Guaranty are for convenience of reference only and are not to affect
the construction hereof or be taken into consideration in the
interpretation hereof.
12. No Waiver; Cumulative Remedies. No Beneficiary
shall by any act (except by a written instrument pursuant to Section 13
hereof), delay, indulgence, omission or otherwise be deemed to have waived
any right or remedy hereunder or to have acquiesced in any breach of any of
the terms and conditions hereof. No failure to exercise, nor any delay in
exercising, on the part of any Beneficiary, any right, power or privilege
hereunder shall operate as a waiver thereof. No single or partial exercise
of any right, power or privilege hereunder shall preclude any other or
further exercise thereof or the exercise of any other right power or
privilege. A waiver by a Beneficiary of any right or remedy hereunder on
any one occasion shall not be construed as a bar to any right or remedy
that such Beneficiary would otherwise have on any future occasion. The
rights and remedies herein provided are cumulative, may be exercised singly
or concurrently and are not exclusive of any rights or remedies provided by
law.
13. Amendments and Waivers. None of the terms or
provisions of this Guaranty may be waived, amended or supplemented or
otherwise modified except by a written instrument executed by the Guarantor
and each Beneficiary.
14. Successors and Assigns. This Guaranty shall be
binding upon the successors and assigns of the Guarantor and shall inure to
the benefit of the Beneficiaries and their respective successors and
permitted assigns but Guarantor may not assign this Guaranty without prior
written consent of the Beneficiaries except to an assignee making, as of
the date of such assignment, (i) representations and warranties
substantially similar to those contained in Section 8 hereof and (ii) a
representation that it is a U.S. citizen, unless, in the case of the
preceding clause (ii) any of (a) the aircraft is not then registered in the
United States nor contemplated to be so registered or (b) a voting trust or
similar arrangement reasonably satisfactory to the Beneficiaries is in
place with respect to such registration or (c) it is not necessary for the
Guarantor to be a U.S. citizen in order for the aircraft to remain
registered in the United States.
15. GOVERNING LAW. THIS GUARANTY SHALL BE GOVERNED
BY AND BE CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAW OF THE STATE
OF NEW YORK.
16. Notices. All notices, requests and demands to or
upon the Guarantor or any Beneficiary to be effective shall be in writing
and, unless otherwise expressly provided herein, shall be deemed to have
been duly given or made, when delivered by hand or by mail, upon receipt,
or, when delivered by facsimile transmission, upon being sent and
confirmed, addressed (a) in the case of the Guarantor, to the Guarantor at
its office at [_________________________________], and (b) in the case of
any Beneficiary, to such Beneficiary at the address provided for such
Beneficiary in or pursuant to the Participation Agreement.
IN WITNESS WHEREOF, the undersigned has caused this Guaranty to
be duly executed and delivered by its duly authorized officer as of the day
and year first above written.
[NAME OF GUARANTOR]
_________________________________
Name:
Title:
PARTICIPATION AGREEMENT
(FEDERAL EXPRESS CORPORATION TRUST NO. N672FE)
Dated as of May 1, 1997
among
FEDERAL EXPRESS CORPORATION,
Lessee
PMCC LEASING CORPORATION,
Owner Participant
STATE STREET BANK AND TRUST COMPANY OF CONNECTICUT,
NATIONAL ASSOCIATION,
Not in Its Individual Capacity
Except as Otherwise Expressly
Set Forth Herein, but Solely as Owner Trustee,
Owner Trustee
FIRST SECURITY BANK, NATIONAL ASSOCIATION,
Indenture Trustee
FIRST SECURITY BANK, NATIONAL ASSOCIATION,
Pass Through Trustee
and
FIRST SECURITY BANK, NATIONAL ASSOCIATION,
Subordination Agent
______________________________
LEVERAGED LEASE OF ONE AIRBUS A300F4-605R AIRCRAFT
SERIAL NO. 779, REGISTRATION NO. N672FE
TABLE OF CONTENTS
Page
Initial Recitals........................................................... 1
ARTICLE 1
DEFINITIONS............................................................. 3
ARTICLE 2
ISSUANCE OF PASS THROUGH CERTIFICATES;
ISSUANCE AND PURCHASE OF CERTIFICATES
Section 2.01. Transfer of Funds........................................ 4
Section 2.02. Certificates............................................. 5
Section 2.03. Owner Participant's Instructions to Owner Trustee........ 5
Section 2.04. Pre-Delivery Date Adjustments to Basic Rent, Stipulated
Loss Values and Termination Values....................... 5
ARTICLE 3
PARTICIPATION IN INVESTMENT ON DELIVERY DATE;
DELIVERY OF AIRCRAFT
Section 3.01. Lessee's Notice of Delivery Date......................... 6
Section 3.02. Commitments to Participate in Purchase Price............. 6
Section 3.03. Owner Participant's Instructions to Owner Trustee........ 9
Section 3.04. Transaction Costs........................................ 9
Section 3.05. Postponement of Delivery Date............................ 9
Section 3.06. Closing.................................................. 11
ARTICLE 4
CONDITIONS PRECEDENT
Section 4.01. Conditions Precedent (Certificate Closing Date).......... 11
Section 4.02. Conditions Precedent (Delivery Date)..................... 20
Section 4.03. Opinion of Special Aviation Counsel Upon Registration.... 28
ARTICLE 5
CONDITIONS PRECEDENT TO LESSEE'S OBLIGATIONS
Section 5.01. Conditions Precedent to Lessee's Obligations............. 28
ARTICLE 6
LESSEE'S REPRESENTATIONS, WARRANTIES AND COVENANTS
Section 6.01. Lessee's Representations and Warranties.................. 29
Section 6.02. Offering by Lessee....................................... 35
Section 6.03. Certain Covenants of Lessee.............................. 35
Section 6.04. Survival of Representations and Warranties............... 43
ARTICLE 7
OTHER PARTIES' REPRESENTATIONS, WARRANTIES AND COVENANTS
Section 7.01. Acquisitions and Offerings of Interests in Lessor's
Estate................................................... 43
Section 7.02. Citizenship.............................................. 44
Section 7.03. Representations, Warranties and Covenants of Owner
Participant.............................................. 45
Section 7.04. Representations, Covenants and Warranties of SSB and the
Owner Trustee............................................ 50
Section 7.05. Representations, Warranties and Covenants of the Indenture
Trustee.................................................. 52
Section 7.06. Indenture Trustee's Notice of Default.................... 54
Section 7.07. Releases from Indenture.................................. 54
Section 7.08. Covenant of Quiet Enjoyment.............................. 54
Section 7.09. Pass Through Trustee's Representations and Warranties.... 54
Section 7.10. Survival of Representations, Warranties and Covenants.... 55
Section 7.11. Lessee's Assumption of the Certificates.................. 55
Section 7.12. Indebtedness of Owner Trustee............................ 57
Section 7.13. Compliance with Trust Agreement, Etc..................... 58
Section 7.14. Subordination Agent's Representations, Warranties and
Covenants................................................ 58
ARTICLE 8
TAXES
Section 8.01. Lessee's Obligation to Pay Taxes......................... 60
Section 8.02. After-Tax Basis.......................................... 65
Section 8.03. Time of Payment.......................................... 66
Section 8.04. Contests................................................. 66
Section 8.05. Refunds.................................................. 69
Section 8.06. Lessee's Reports......................................... 69
Section 8.07. Survival of Obligations.................................. 70
Section 8.08. Payment of Taxes......................................... 70
Section 8.09. Reimbursements by Indemnitees Generally.................. 70
Section 8.10. Special Indemnity........................................ 70
ARTICLE 9
GENERAL INDEMNITY
Section 9.01. Generally................................................ 71
Section 9.02. After-Tax Basis.......................................... 74
Section 9.03. Subrogation.............................................. 75
Section 9.04. Notice and Payment....................................... 75
Section 9.05. Refunds.................................................. 75
Section 9.06. Defense of Claims........................................ 76
Section 9.07. Survival of Obligations.................................. 77
Section 9.08. Effect of Other Indemnities.............................. 77
Section 9.09. Interest................................................. 77
Section 9.10. Special Indemnity........................................ 78
ARTICLE 10
TRANSACTION COSTS
Section 10.01. Transaction Costs and Other Costs....................... 78
ARTICLE 11
SUCCESSOR OWNER TRUSTEE
Section 11.01. Appointment of Successor Owner Trustee.................. 80
ARTICLE 12
LIABILITIES AND INTERESTS OF THE OWNER PARTICIPANT AND HOLDERS
Section 12.01. Liabilities of the Owner Participant.................... 82
Section 12.02. Interest of Holders of Certificates..................... 82
ARTICLE 13
OTHER DOCUMENTS
Section 13.01. Consent of Lessee to Other Documents.................... 82
Section 13.02. Further Assurances...................................... 83
Section 13.03. Pass Through Trustee's and Subordination Agent's
Acknowledgment.......................................... 83
ARTICLE 14
NOTICES
Section 14.01. Notices................................................. 83
ARTICLE 15
REFINANCING/REOPTIMIZATION
Section 15.01. Refinancing............................................. 84
Section 15.02. Reoptimization.......................................... 88
ARTICLE 16
[RESERVED]
ARTICLE 17
MISCELLANEOUS
Section 17.01. Owner for Federal Tax Purposes.......................... 89
Section 17.02. Collateral Account...................................... 89
Section 17.03. Counterparts............................................ 90
Section 17.04. No Oral Modifications................................... 90
Section 17.05. Captions................................................ 91
Section 17.06. Successors and Assigns.................................. 91
Section 17.07. Concerning the Owner Trustee, Indenture Trustee and the
Pass Through Trustee.................................... 91
Section 17.08. Severability............................................ 92
Section 17.09. Public Release of Information........................... 92
Section 17.10. Certain Limitations on Reorganization................... 92
Section 17.11. GOVERNING LAW........................................... 93
Section 17.12. Section 1110 Compliance................................. 93
Section 17.13. Reliance of Liquidity Providers......................... 93
ARTICLE 18
CONFIDENTIALITY
Section 18.01. Confidentiality......................................... 93
SCHEDULE I Certificate Information
SCHEDULE II Definitions
SCHEDULE III Permitted Country List
SCHEDULE IV Debt Portion
EXHIBIT A(1)(a)(i) Opinion of Lessee's Counsel
(Certificate Closing Date)
EXHIBIT A(1)(a)(ii) Opinion of Lessee's Counsel
(Delivery Date)
EXHIBIT A(1)(b)(i) Opinion of Lessee's Special Counsel
(Certificate Closing Date)
EXHIBIT A(1)(b)(ii) Opinion of Lessee's Special Counsel
(Delivery Date)
EXHIBIT A(2)(a) Opinion of Owner Participant's and Owner Participant
Guarantor's Special Counsel
EXHIBIT A(2)(b) Opinion of Owner Participant's and Owner Participant
Guarantor's Counsel
EXHIBIT A(3) Opinion of Indenture Trustee's Special Counsel
EXHIBIT A(4)(a)(i) Opinion of Owner Trustee's Special Counsel
(Certificate Closing Date)
EXHIBIT A(4)(a)(ii) Opinion of Owner Trustee's Special Counsel
(Delivery Date)
EXHIBIT A(5) Opinion of Pass Through Trustee's and Subordination
Agent's Special Counsel
EXHIBIT A(6)(a) Opinion of Liquidity Provider's Counsel
EXHIBIT A(6)(b) Opinion of Liquidity Provider's Special Counsel
EXHIBIT A(7) Opinion of Engine Manufacturer's Counsel
EXHIBIT A(8) Opinion of Manufacturer's and AVSA's Counsel
EXHIBIT A(9) Opinion of Special Aviation Counsel
EXHIBIT B Form of Lease Agreement
EXHIBIT C Form of Indenture
EXHIBIT D Form of Trust Agreement
EXHIBIT E Form of Purchase Agreement Assignment, Consent and
Agreement, AVSA Consent and Agreement
EXHIBIT F Form of Engine Warranty Assignment and Engine Consent
EXHIBIT G-1 Form of Assignment and Assumption Agreement
EXHIBIT G-2 Form of Owner Participant Guaranty
PARTICIPATION AGREEMENT
(FEDERAL EXPRESS CORPORATION TRUST NO. N672FE)
PARTICIPATION AGREEMENT (FEDERAL EXPRESS CORPORATION TRUST NO.
N672FE) dated as of May 1, 1997 (this "Agreement") among FEDERAL EXPRESS
CORPORATION, a Delaware corporation (herein, together with its successors and
permitted assigns, the "Lessee"), PMCC LEASING CORPORATION, a Delaware
corporation (herein, together with its successors and permitted assigns, the
"Owner Participant"), STATE STREET BANK AND TRUST COMPANY OF CONNECTICUT,
NATIONAL ASSOCIATION, a national banking association, not in its individual
capacity, except as otherwise expressly stated herein, but solely as owner
trustee under the Trust Agreement referred to below (in such capacity as
trustee, together with its successors and permitted assigns, the "Owner
Trustee"), FIRST SECURITY BANK, NATIONAL ASSOCIATION, a national banking
association, not in its individual capacity, except as otherwise expressly
stated herein, but solely as indenture trustee under the Indenture referred to
below (in such capacity as trustee, together with its successors and permitted
assigns, the "Indenture Trustee"), FIRST SECURITY BANK, NATIONAL ASSOCIATION,
a national banking association, not in its individual capacity, except as
otherwise expressly stated herein, but solely as pass through trustee of three
separate Pass Through Trusts (in such capacity as trustee, together with its
successors and permitted assigns, the "Pass Through Trustee"), and FIRST
SECURITY BANK, NATIONAL ASSOCIATION, a national banking association, not in its
individual capacity, except as otherwise expressly stated herein, but solely as
subordination agent (in such capacity as trustee, together with its successors
and permitted assigns, the "Subordination Agent").
W I T N E S S E T H :
WHEREAS, capitalized terms used herein shall have the respective
meanings set forth or referred to in Article 1 hereof.
WHEREAS, the Owner Participant has entered into the Trust Agreement
with the Owner Trustee in its individual capacity, substantially in the form
of Exhibit D hereto, pursuant to which Trust Agreement the Owner Trustee
agrees, among other things, to hold the Lessor's Estate for the benefit of the
Owner Participant on the terms specified in the Trust Agreement, subject to
the Lien of the Indenture.
WHEREAS, on the Pass Through Closing Date, a closing will occur
with respect to the public offering of Pass Through Certificates issued by
each Pass Through Trust, an allocable amount of the proceeds of which
offering will be used by the Pass Through Trustee to purchase for each such
Pass Through Trust the Certificates of the Series and Maturity applicable
thereto.
WHEREAS, on the Certificate Closing Date, the Owner Trustee and the
Indenture Trustee will enter into the Indenture for the benefit of the Pass
Through Trustee, pursuant to which the Owner Trustee is issuing the
Certificates to the Subordination Agent on behalf of the Pass Through Trustee
as evidence of the loans made by the Pass Through Trustee to the Owner
Trustee, the proceeds of which loans will be deposited by the Indenture
Trustee on behalf of the Owner Trustee in the Collateral Account.
WHEREAS, concurrently with the execution and delivery hereof, (i)
Kredietbank N.V., acting through its New York Branch will enter into two
revolving credit agreements (each, a "Liquidity Facility"), one for the
benefit of the holders of Pass Through Certificates of each of the Pass
Through Trusts for the Series A Certificates and the Series B Certificates,
with the Subordination Agent, as agent for the Pass Through Trustee on behalf
of each such Pass Through Trust; and (ii) the Pass Through Trustee, each
Liquidity Provider and the Subordination Agent will enter into the
Intercreditor Agreement.
WHEREAS, the Certificates will be held by the Subordination Agent
pursuant to the Intercreditor Agreement on behalf of the Pass Through Trustee
for each of the Pass Through Trusts.
WHEREAS, prior to the Delivery Date, the Certificates will be secured
by the Liquid Collateral.
WHEREAS, pursuant to the terms of the Trust Agreement, the Owner
Trustee will be authorized and directed by the Owner Participant:
(a) on the Delivery Date, to purchase the Aircraft from AVSA;
(b) on the Certificate Closing Date, to execute and deliver the
Lease substantially in the form of Exhibit B hereto, pursuant to which,
subject to the terms and conditions set forth in said Lease, the Owner
Trustee agrees to lease to the Lessee, and the Lessee agrees to lease from
the Owner Trustee, the Aircraft on the Delivery Date, such lease to be
effected by the execution and delivery on the Delivery Date of a Lease
Supplement, in the form of Exhibit A to the Lease, covering the Aircraft
and incorporating by reference all of the terms of the Lease;
(c) on the Certificate Closing Date, to execute and deliver the
Indenture, substantially in the form of Exhibit C hereto, for the benefit
of the Holders from time to time of the Certificates, pursuant to which the
Owner Trustee agrees, among other things, (A) to deposit, mortgage and
pledge with the Indenture Trustee, as part of the Trust Indenture Estate,
all of the Lessor's Estate but not Excepted Payments, (B) on the
Certificate Closing Date, to issue Certificates substantially in the form
set forth in Exhibit B to the Indenture, the proceeds of the sale of which
will be held by the Indenture Trustee on behalf of the Owner Trustee in
the Collateral Account until released in accordance with the terms
hereof and of the Indenture, and (C) on the Delivery Date, to execute
and deliver the Indenture and Security Agreement Supplement,
substantially in the form of Exhibit A to the Indenture, covering the
Aircraft and supplementing the Indenture;
(d) on the Certificate Closing Date, to execute and deliver the
Purchase Agreement Assignment, whereby the Lessee assigns to the Owner
Trustee the right to purchase the Aircraft from AVSA and certain of the
Lessee's rights and interests under the Purchase Agreement and the Consent
and Guaranty to the extent that the same relate to the Aircraft (except to
the extent reserved in said Purchase Agreement Assignment), which Purchase
Agreement Assignment is to include as an annex a Consent and Agreement
executed by the Manufacturer and the AVSA Consent and Agreement executed by
AVSA, said Purchase Agreement Assignment, Consent and Agreement and AVSA
Consent and Agreement to be substantially in the form of Exhibit E hereto;
and
(e) on the Certificate Closing Date, to execute and deliver the
Engine Warranty Assignment, whereby the Lessee assigns to the Owner Trustee
certain of the Lessee's rights and interests under the GTA to the extent
that the same relate to the Engines (except to the extent reserved in the
Engine Warranty Assignment), which Engine Warranty Assignment is to include
as an annex an Engine Consent executed by the Engine Manufacturer, said
Engine Warranty Assignment and Engine Consent to be substantially in the
form of Exhibit F hereto.
WHEREAS, on the Delivery Date pursuant to and subject to the terms
and conditions of this Agreement, the Purchase Agreement Assignment, the
Engine Warranty Assignment, AVSA's FAA Bill of Sale, AVSA's Warranty Bill
of Sale and the Airbus Guaranty, the Owner Trustee will purchase, and
receive title to, the Aircraft from AVSA and lease the Aircraft to the
Lessee pursuant to the Lease.
NOW, THEREFORE, in consideration of the mutual covenants contained in
this Agreement and other good and valuable consideration, receipt of which is
hereby acknowledged, the parties hereto agree as follows:
ARTICLE 1
DEFINITIONS
Unless otherwise specifically provided herein, the definitions set
forth in Schedule II hereto are incorporated herein for all purposes of this
Agreement and shall be equally applicable to both the singular and the plural
forms of the terms so defined.
ARTICLE 2
ISSUANCE OF PASS THROUGH CERTIFICATES;
ISSUANCE AND PURCHASE OF CERTIFICATES
Section 2.01. Transfer of Funds.
(a) On or before the Pass Through Closing Date, the Pass Through
Trustee and the Lessee, in accordance with the Pass Through Agreement, shall
enter into the Series Supplements, and, subject to the terms and conditions
set forth therein, on the Pass Through Closing Date (i) the Lessee shall
direct the Underwriters to execute a wire transfer or intra-bank transfer to
the Pass Through Trustee in the amount of the total proceeds payable pursuant
to the Underwriting Agreement with respect to the Pass Through Certificates
and (ii) the Pass Through Trustee shall deliver the Pass Through Certificates
to the Underwriters upon receipt by the Pass Through Trustee of such proceeds.
(b) Subject to the satisfaction or waiver of the conditions set
forth herein, on the Certificate Closing Date, on behalf of each Pass Through
Trust, from an allocable amount of the proceeds of the sale of the related
Pass Through Certificates, the Pass Through Trustee shall purchase the
Certificates specified for such Pass Through Trust on Schedule I hereto. For
each Pass Through Trust, the Pass Through Trustee shall pay an amount equal to
the principal amount of Certificates of the Series and Maturity that relates
to such Pass Through Trust, which amounts in the aggregate shall equal the
aggregate principal amount of the Certificates as specified in Section 2.04 of
the Indenture. The aggregate amount payable by the Pass Through Trustee
pursuant to this Section 2.01(b) shall be payable by wire transfer or
intra-bank transfer to the Indenture Trustee on behalf of the Owner Trustee.
(c) On the Certificate Closing Date, the Indenture Trustee shall,
on behalf of the Owner Trustee, deposit, by wire transfer or intra-bank
transfer, the amounts received by it pursuant to Section 2.01(b) hereof in the
Collateral Account pursuant to the Indenture.
(d) On the Certificate Closing Date concurrently with the events
specified in Section 2.01(b) hereof, the parties hereto shall execute and
deliver, to the extent they are parties thereto, and consent to the execution
and delivery of (if they are not parties thereto), the Lease (other than the
Lease Supplement), the Indenture (other than the Indenture and Security
Agreement Supplement), and the other documents listed in Section 4.01(d)
hereof, and the Owner Trustee shall execute and deliver to the Indenture
Trustee for authentication, and the Indenture Trustee shall authenticate and
deliver to the Subordination Agent on behalf of the Pass Through Trustee for
each of the Pass Through Trusts, upon the request of the Owner Trustee, the
Certificates as provided in Section 2.02 hereof.
(e) The Closings shall take place at the offices of Davis Polk &
Wardwell, 450 Lexington Avenue, New York, New York 10017.
Section 2.02. Certificates. Subject to the satisfaction or waiver
of the conditions set forth herein, on the Certificate Closing Date, the Owner
Participant will instruct the Owner Trustee to execute and deliver to the
Indenture Trustee, and the Indenture Trustee shall authenticate and deliver,
upon the request of the Owner Trustee, to the Subordination Agent on behalf of
the Pass Through Trustee for each of the Pass Through Trusts, the Certificates
specified for such Pass Through Trust on Schedule I attached hereto, which (i)
shall be issued in the principal amount and in the Series and Maturity set
forth for such Certificate in Schedule I hereto, (ii) shall bear interest at
the interest rate set forth for such Certificate in Schedule I hereto, (iii)
shall be issued in such form and on such terms as are specified in the
Indenture, (iv) shall be dated and authenticated on the Certificate Closing
Date and shall bear interest from the Certificate Closing Date and (v) shall
be registered in the name of the Subordination Agent on behalf of the Pass
Through Trustee for such Pass Through Trust.
Section 2.03. Owner Participant's Instructions to Owner Trustee.
The Owner Participant agrees that the issuance of Certificates in
accordance with the terms hereof shall constitute, without further act,
authorization and direction by the Owner Participant to the Owner Trustee
to take the action specified in Section 1.01 (other than clauses (a) and
(c)) of the Trust Agreement and confirmation that all conditions to closing
in respect of the Certificate Closing Date set forth in Section 4.01 (but
not Section 4.02) hereof were either met to the satisfaction of the Owner
Participant or, if not so met, were in any event waived by it.
Section 2.04. Pre-Delivery Date Adjustments to Basic Rent,
Stipulated Loss Values and Termination Values. On or prior to the Delivery
Date, the percentages for Basic Rent referred to in Schedule II of the Lease
and the percentages for Stipulated Loss Value and Termination Value in
Schedule III and Schedule IV, respectively, of the Lease shall be adjusted
(upward or downward), subject to the procedures set forth in Section 3.04 of
the Lease and the minimum values established by Section 3.05 of the Lease and
the definitions of Stipulated Loss Value and Termination Value, to reflect
changes in the pricing assumptions with respect to (i) the Delivery Date being
other than August 19, 1997, (ii) a different rate of interest or amortization
schedule assumed by the Owner Participant in calculating such percentages from
that assumed by the Owner Participant in originally calculating such
percentages, (iii) Transaction Costs being other than as assumed in Section
10.01 hereof, (iv) any change in the length of the Basic Term (but in no event
shall the Term exceed 23.25 years) and (v) a Change in Tax Law which occurs
after the date of the execution of this Agreement but on or prior to the
Delivery Date. Notwithstanding anything herein to the contrary, the Lessee
shall have no obligation to enter into the transaction contemplated by this
Agreement other than with respect to Transaction Costs as described in Section
2.03 below and its obligation to purchase the Aircraft as provided in Section
3.05(a) hereof if, as a result of a Change in Tax Law after the date of
execution of this Agreement but on or prior to the Delivery Date, the Net
Present Value of Rents is increased by 100 basis points or more.
ARTICLE 3
PARTICIPATION IN INVESTMENT ON DELIVERY DATE;
DELIVERY OF AIRCRAFT
Section 3.01. Lessee's Notice of Delivery Date. The Lessee agrees
to give the Owner Participant, the Indenture Trustee, the Owner Trustee and
the Pass Through Trustee at least three (3) Business Days' written or
facsimile notice prior to the Delivery Date (which notice shall be effective
only if received not later than 10:00 a.m. (New York City time) on the date
that is at least three (3) Business Days prior to the Delivery Date), which
Delivery Notice shall specify the amount of the Purchase Price, the amount of
the Owner Participant's Commitment, the Debt Portion, the Delivery Date for
the Aircraft, the serial number of the Airframe and each Engine, and the
Aeronautics Authority registration number for the Aircraft.
Section 3.02. Commitments to Participate in Purchase Price. (a)
Participation in Purchase Price. Subject to the terms and conditions of this
Agreement, on the Delivery Date, (i) subject to the proviso to this Section
3.02(a), the Indenture Trustee agrees to release the Debt Portion or such
lesser amount as may then be held in the Collateral Account together with the
Lessee Shortfall (as defined in clause (iii) below), if any, to the Owner
Trustee for application to the Purchase Price as provided below, (ii) the
Owner Participant agrees to participate in the Lessor's payment of the
Purchase Price by making an investment in the beneficial ownership of the
Lessor's Estate in an amount equal to the amount set forth in Ancillary
Agreement II, (iii) subject to the proviso to this Section 3.02(a), the Lessee
agrees to pay to the Indenture Trustee the excess, if any, of (I) the Debt
Portion over (II) such amount as may then be held in the Collateral Account
(the "Lessee Shortfall") as provided in Section 17.02(a) hereof, and (iv)
pursuant to the Purchase Agreement as assigned pursuant to the Purchase
Agreement Assignment, AVSA shall sell the Aircraft to the Owner Trustee and
the Owner Trustee shall immediately thereafter lease the Aircraft to the
Lessee pursuant to the Lease. In consideration for the assignment to the
Owner Trustee by the Lessee under the Purchase Agreement Assignment of the
Lessee's right to purchase the Aircraft for the remaining balance due under
the Purchase Agreement and for the transfer of title to the Aircraft from
AVSA to the Owner Trustee, the following cash payments will be made by wire
transfer of immediately available funds on the Delivery Date: (A) by the
Owner Trustee to AVSA, an amount equal to the remaining balance due to AVSA
under the Purchase Agreement for the Aircraft, as evidenced by the Invoice,
or if the proviso to this Section 3.02(a) is applicable, such amount as it
shall have received from the Owner Participant not to exceed such remaining
balance due to AVSA, (B) by the Owner Trustee to the Lessee, an amount
equal to the Purchase Price (or if the proviso to this Section 3.02(a) is
applicable, the amount received from the Owner Participant) minus the cash
payment to AVSA pursuant to clause (A) above and (C) by the Indenture
Trustee, on behalf of the Owner Trustee, to the Lessee the excess of any
amounts as may then be held in the Collateral Account over the Debt
Portion; provided, however, that if (1) the Delivery Date has been
postponed, (2) the investments contemplated by Section 2.14(b) of the
Indenture have been made, (3) such investments do not mature on the
rescheduled Delivery Date and (4) the Lessee elects not to break such
investments, then the Indenture Trustee shall not release amounts in the
Collateral Account to the Owner Trustee and the Lessee shall instead pay to
AVSA any balance of the Purchase Price remaining after payment to AVSA by
the Owner Trustee as contemplated by clause (A) above and the Indenture
Trustee shall pay to the Lessee at the end of the applicable investment
period referred to in Section 2.14(b) of the Indenture all amounts then
held in the Collateral Account.
(b) Payment of Commitment. The Owner Participant agrees with the
Lessee and only with the Lessee on behalf of the Owner Trustee, subject to the
terms and conditions of this Agreement, to make the amount of its Commitment
available for and on account of the Owner Trustee on the Delivery Date
specified in the Delivery Notice pursuant to Section 3.03 hereof by wire
transfer, initiated by 10:00 a.m. (New York City time on such day) of such
amount in immediately available funds, to the Owner Trustee for deposit in its
account at State Street Bank and Trust Company, Boston, Massachusetts, ABA
No. 011-000-028, A/C No. 9900-314-7, Attention: Christy O'Connor, Re: FedEx
Equity Payments Account. The amount of the Owner Participant's Commitment
shall be held for the account of the Owner Participant by the Owner Trustee
until released by the Owner Participant or its special counsel at closing or
until returned to the Owner Participant in accordance with Section 3.02(c)
hereof.
(c) No Obligation to Increase Commitments; Delayed Delivery. (i) If
the Indenture Trustee shall default in its obligation to make the amount of
its Debt Portion available pursuant hereto, the Owner Participant shall have
no obligation to make any portion of such Debt Portion available or to
increase the amount of its Commitment, and the obligations of the Owner
Participant shall remain subject to the terms and conditions of this
Agreement, until no later than September 30, 1997.
(ii) Subject to the provisions of Section 3.05 hereof, if the closing
of the transactions contemplated by the Operative Agreements shall not have
been consummated by 2:00 p.m. (New York City time), or such earlier time as
directed by the Lessee, on the Scheduled Delivery Date, the Owner Trustee
shall, if instructed in writing by the Lessee, at the risk and expense of the
Lessee, use its reasonable best efforts to cause the Owner Participant's
Commitment to be invested and reinvested to the extent practicable at the
direction received by it from the Lessee (with a copy to the Owner
Participant), at the risk of the Lessee, in Permitted Investments consisting
of either commercial paper or time deposits; provided, however, that in the
absence of instructions by 2:00 p.m. (New York City time) the Owner Trustee
shall use its reasonable best efforts to cause such amount or the proceeds
thereof to be invested and reinvested to the extent practicable in overnight
Eurodollar time deposits. Earnings on any such investments shall be applied
to the Lessee's payment obligations, if any, to such Owner Participant
pursuant to the next succeeding paragraph, and the balance, if any, of such
earnings remaining after such application shall be paid in accordance with the
Lessee's written instructions.
If for any reason (i) the Operative Agreements shall not be executed
and delivered by the respective parties thereto and/or the delayed Delivery
Date shall not occur (whether by reason of a failure to meet a condition
precedent thereto set forth in Article 4 hereof or otherwise) on or before the
third Business Day after the Scheduled Delivery Date (or earlier if requested
by the Owner Participant) or, if earlier, the Cut-Off Date, or (ii) the Lessee
has notified the Owner Trustee (with a copy to the Owner Participant) prior to
2:00 p.m. (New York City time) on any date after the Scheduled Delivery Date
that it does not intend to go forward to close the transactions contemplated
hereby for such Delivery Date, the Owner Participant may cancel any funding
arrangements made to fund its Commitment on the Scheduled Delivery Date but
the Owner Participant's Commitment hereunder with respect to the Aircraft
shall not be terminated thereby until September 30, 1997, whereupon the
Owner Participant's Commitment hereunder shall terminate. On such third
Business Day (or such earlier date) or September 30, 1997, as the case may
be, or the earliest practicable Business Day thereafter, the Owner Trustee
shall return the amounts held by it hereunder to the Owner Participant,
provided that the Owner Trustee shall have had a reasonable time to
liquidate any Permitted Investments it has been authorized to invest in
pursuant to the preceding paragraph and to obtain the proceeds therefrom in
funds of the type originally received, and the Lessee shall pay interest on
such funds to the Owner Participant at the Debt Rate, such interest to be
payable for the period from and including such Scheduled Delivery Date to
but excluding the date such funds are returned to the Owner Participant in
accordance with the terms hereof; provided that if any such funds are
returned to the Owner Participant after 2:00 p.m. (New York City time) on
any such date, such funds shall be deemed for purposes of this paragraph to
have been returned on the next succeeding Business Day.
The Lessee shall reimburse the Owner Trustee on demand for any loss
incurred by the Owner Trustee as a result of the investment of funds by the
Owner Trustee in accordance with the terms of this Section 3.02(c). Further,
the Lessee shall indemnify the Owner Trustee and hold it harmless from and
against any cost or expense the Owner Trustee may incur as a result of any
investment of funds or transfer of funds referred to herein in accordance with
the terms hereof. The Owner Trustee shall not be liable for failure to invest
such funds except as otherwise provided herein or for any losses incurred on
such investments except for any losses arising out of its own gross negligence
or willful misconduct.
Section 3.03. Owner Participant's Instructions to Owner Trustee.
The Owner Participant agrees that the release of its Commitment in
accordance with the terms hereof shall constitute, without further act,
authorization and direction by the Owner Participant to the Owner Trustee
to take the actions specified in Sections 1.01(a) and (c) of the Trust
Agreement and confirmation that all conditions to closing set forth in
Section 4.02 hereof were either met to the satisfaction of the Owner
Participant or, if not so met, were in any event waived by it.
Section 3.04. Transaction Costs. If the transactions contemplated
by this Article 3 are consummated, as and when any portion of Transaction
Costs becomes due and payable, the Owner Participant shall, as soon as
practicable upon receipt of bills or invoices for the amounts payable make
such payments or, if the Lessee shall have already made such payment, shall
reimburse the Lessee therefor or shall, as soon as practicable, furnish the
Owner Trustee funds sufficient to, and the Owner Trustee shall, as soon as
practicable, make payment of such portion to the Person or Persons entitled to
payment upon presentation to the Owner Trustee of bills or invoices for the
amount of such payment. If such transactions are not consummated, the Lessee
shall pay or cause to be paid all the Transaction Costs; provided, however
that if the failure of such transactions to be consummated is due to (i) a
failure of the Owner Participant to obtain investment approval to proceed with
the transaction contemplated hereby, (ii) a failure to negotiate the Operative
Agreements in good faith by the Owner Participant or (iii) a wrongful act by
the Owner Participant, the Lessee shall have no obligation to pay those costs
and expenses incurred directly by the Owner Participant in connection with the
transactions contemplated by this Agreement described in Sections 10.01(a)(i)
and (xi) hereof, but the Lessee shall be obligated to pay all other
Transaction Costs.
Section 3.05. Postponement of Delivery Date. (a) If the Owner
Participant shall for any reason fail or refuse to make the full amount of its
Commitment available on the Scheduled Delivery Date in accordance with the
terms of Section 3.02 hereof, the Owner Trustee will promptly give each party
confirmed facsimile notice thereof and the Lessee shall postpone the Delivery
Date for a period of not more than five (5) Business Days, but in no event
later than September 30, 1997. If the Owner Participant shall for any reason
fail or refuse to make the full amount of its Commitment available in
accordance with the terms of Section 3.02 hereof on such postponed Delivery
Date, (i) if the Owner Participant fails to make available its Commitment in
breach of its obligations under this Agreement, the Lessee shall cause the
Owner Participant to assign to another equity investor identified by the
Lessee its interest in the Lessor's Estate pursuant to Section 7.03(d) hereof
and (ii) if no such equity investor is identified, or if such equity investor
fails to close such transactions, or if the Owner Participant fails to make
available its Commitment for any other reason than as specified in clause (i)
above, the Owner Participant's interest in the Lessor's Estate shall be
automatically conveyed to the Lessee without any further action, and the
parties hereto shall take such actions as may be advisable or necessary to
give effect to such conveyance. From and after any such conveyance, the
Owner Participant's obligations hereunder and under the other Operative
Agreements shall cease. The exception to the Lessee's indemnity set forth
in clause (viii) of Section 9.01(b) hereof shall not be applicable to any
such conveyance other than a conveyance pursuant to clause (i) above. For
the avoidance of doubt, it is understood and agreed that if for any reason
other than the failure of the Manufacturer or AVSA to deliver the Aircraft,
the Lessee does not enter into the Lease Supplement with the Owner Trustee
on or prior to the Cut-Off Date, the Indenture Trustee and the Pass Through
Trustee agree that the Lessee shall purchase the Aircraft and assume all of
the obligations of the Owner Trustee under the Certificates upon
satisfaction of the requirements set forth in Section 4.02 hereof, as the
same may be modified by the provisions of Section 7.11 hereof and as
otherwise necessary to reflect a full recourse secured aircraft financing
of the Lessee. If the Lessee has identified an equity investor under the
circumstances set forth in clause (i) above, the Owner Participant agrees
to assign its interest in the Lessor's Estate as provided in said clause
(i). In case of any such conveyance pursuant to said clause (i) (but
subject to the satisfaction of the conditions precedent specified herein),
the Indenture Trustee shall release the Debt Portion or such lesser amount
as may then be held in the Collateral Account for application to the
payments contemplated in the last sentence of Section 3.02(a) hereof,
subject to the proviso to Section 3.02(a) hereof.
(b) Release of Obligations. If the Delivery Date has not occurred
on or prior to the Cut-Off Date (i) in the case of the Indenture Trustee and
the Pass Through Trustee, as a result of a failure of the Manufacturer or AVSA
to deliver the Aircraft, or (ii) in the case of the Owner Participant, for any
reason, then, in such event, the Owner Trustee shall not purchase the Aircraft
from AVSA, and the parties to the Operative Agreements shall have no further
obligations or liabilities under any of said Operative Agreements with respect
to the Aircraft, including the obligation of the Owner Participant to
participate in the payment of the Purchase Price, and such documents shall
terminate and have no further force or effect with respect to the Aircraft;
provided, however, that the Lessee shall provide, no later than the Cut-Off
Date, notice of prepayment to the Indenture Trustee and the Certificates shall
be prepaid on the 15th day following the Cut-Off Date as provided in Section
6.02(a)(vi) of the Indenture and Section 17.02(c) hereof and provided further,
that (i) the Lessee's obligation to pay any Transaction Costs as provided in
Section 3.04 hereof (to the extent such section is applicable) and to
indemnify such parties to the extent provided in such documents, shall not be
diminished or modified in any respect and (ii) the obligations of the Owner
Trustee, the Indenture Trustee and the Lessee to return funds and pay
interest, costs, expenses and other amounts thereon or in respect thereof as
provided in Section 3.02 hereof shall continue.
(c) Optional Postponement. Without limiting the provisions of
Section 3.02(c) hereof, the Scheduled Delivery Date may be postponed from time
to time (but in no event shall the Delivery Date be later than the Cut-Off
Date) for any reason, other than pursuant to Section 3.05(a) hereof, if the
Lessee gives the Owner Participant, the Indenture Trustee, the Owner Trustee
and the Pass Through Trustee confirmed facsimile notice (or telephone notice
followed by written confirmation) of such postponement and notice of the date
to which the Delivery Date has been postponed, such notice of postponement to
be received by each party no later than 11:00 a.m. (New York City time) on the
Business Day preceding the Scheduled Delivery Date.
Section 3.06. Closing. The closing with respect to the purchase and
lease of the Aircraft on the Delivery Date shall take place at the offices of
Davis Polk & Wardwell, 450 Lexington Avenue, New York, New York 10017.
ARTICLE 4
CONDITIONS PRECEDENT
Section 4.01. Conditions Precedent (Certificate Closing Date). The
obligations of the Owner Trustee, the Owner Participant, the Indenture
Trustee, the Subordination Agent and the Pass Through Trustee on behalf of
each Pass Through Trust to participate in the transactions contemplated hereby
on the Certificate Closing Date are subject to the fulfillment to the
satisfaction of such party (or waiver by such party), prior to or on the
Certificate Closing Date, of the following conditions precedent (it being
understood that receipt by the Lessee of any of the following documents shall
not be a condition precedent to the obligations of any party):
(a) Certificates. (i) On the Certificate Closing Date, there shall
have been duly issued and delivered by the Owner Trustee to the
Subordination Agent on behalf of the Pass Through Trustee for each Pass
Through Trust, against payment therefor, a Certificate, substantially in
the form set forth in Exhibit B to the Indenture, duly authenticated, dated
the Certificate Closing Date and registered in the name of the
Subordination Agent, in the principal amounts, Series and Maturity, bearing
the interest rate and the other economic terms specified in the Series
Supplements and otherwise as provided in Section 2.04 of the Indenture.
The Pass Through Certificates shall be registered under the Securities Act,
any applicable state securities laws shall have been complied with, and the
Pass Through Agreement shall have been qualified under the Trust Indenture
Act, and (ii) on the Certificate Closing Date, the "Certificates" (as
defined in each of the Related Indentures) have been duly issued and
delivered by the "Owner Trustee" (as defined in each of the Related
Indentures) to the Subordination Agent on behalf of the Pass Through
Trustee for each Pass Through Trust.
(b) Legal Investment. On the Certificate Closing Date, no fact or
condition shall exist under applicable laws or regulations, or
interpretations of any such laws or regulations by applicable regulatory
authorities, which, in the opinion of the Owner Participant or its special
counsel, the Pass Through Trustee, the Subordination Agent or the Indenture
Trustee or their special counsel, would make it illegal for the Owner
Participant, the Lessee, the Owner Trustee, the Pass Through Trustee, the
Subordination Agent or the Indenture Trustee, and no change in
circumstances shall have occurred which would otherwise make it illegal or
otherwise in contravention of guidance issued by regulatory authorities for
the Owner Participant, the Lessee, the Owner Trustee, the Pass Through
Trustee, the Subordination Agent or the Indenture Trustee, to participate
in the transactions to be consummated on the Certificate Closing Date; and
no action or proceeding shall have been instituted nor shall governmental
action before any court, governmental authority or agency be threatened
which in the opinion of counsel for the Owner Participant, the Indenture
Trustee, the Subordination Agent or the Pass Through Trustee is not
frivolous, nor shall any order have been issued or proposed to be issued by
any court, or governmental authority or agency, as of the Certificate
Closing Date, to set aside, restrain, enjoin or prevent the consummation of
any of the transactions contemplated by this Agreement or by any of the
other Operative Agreements.
(c) Underwriters. The Underwriters shall have transferred the funds
specified in Section 2.01(a) hereof and all conditions thereunder shall
have been satisfied or waived.
(d) Documents. This Agreement and the following documents shall
have been duly authorized, executed and delivered by the respective
party or parties thereto, shall each be satisfactory in form and
substance to the Lessee, the Owner Trustee, the Indenture Trustee, the
Pass Through Trustee and the Owner Participant (each acting directly or
by authorization to its special counsel) and shall each be in full force
and effect; there shall not have occurred any default thereunder, or any
event which with the lapse of time or the giving of notice or both would
be a default thereunder, and copies executed or certified as requested
by the Lessee, the Owner Trustee, the Indenture Trustee, the Pass
Through Trustee, the Subordination Agent or the Owner Participant, as
the case may be, of such documents shall have been delivered to the
Owner Participant, the Lessee, the Indenture Trustee, the Pass Through
Trustee, the Subordination Agent and the Owner Trustee (provided that
the sole chattel-paper original of each of the Lease and each Ancillary
Agreement amendatory of the Lease, shall be delivered to the Indenture
Trustee):
(i) the Lease;
(ii) the Indenture;
(iii) in the case of the Owner Participant only, the Tax Indemnity
Agreement;
(iv) the Purchase Agreement and the Consent and Guaranty;
(v) the Purchase Agreement Assignment and the French Pledge
Agreement with respect thereto;
(vi) the GTA;
(vii) the Trust Agreement;
(viii) the Ancillary Agreement I;
(ix) the Ancillary Agreement II;
(x) the Owner Participant Guaranty;
(xi) the Intercreditor Agreement; and
(xii) the Liquidity Facility for each of the Pass Through Trusts for
the Series A Certificates and the Series B Certificates.
(e) Approvals. All approvals and consents of any trustees or
holders of any indebtedness or obligations of the Lessee, which in the
opinion of the Owner Participant, the Pass Through Trustee or the Indenture
Trustee are required in connection with any transaction contemplated by
this Agreement, shall have been duly obtained.
(f) Financing Statements. Uniform Commercial Code ("UCC") financing
statements covering all the security interests (and other interests)
intended to be created by or pursuant to the Granting Clause of the
Indenture shall have been executed and delivered by the Owner Trustee, as
debtor, and by the Indenture Trustee, as secured party, for and on behalf
of the Holders, and such financing statements shall have been duly filed or
duly submitted for filing in the State of Connecticut, and all other
actions shall have been taken which, in the opinion of the Owner
Participant, the Pass Through Trustee and the Underwriters, are necessary
to perfect and protect such security interests and other interests.
(g) Corporate Documents. Except when such Person is the delivering
party, the Owner Participant, the Owner Trustee, the Pass Through Trustee,
the Lessee and the Indenture Trustee (acting directly or by authorization
to its counsel) shall have received the following, in each case in form and
substance satisfactory to it:
(i) a copy of the certificate of incorporation and by-laws of the
Lessee, certified by the Secretary or an Assistant Secretary of the
Lessee as of the Certificate Closing Date, and a copy of the minutes
of the regular meeting of the board of directors of the Lessee,
certified as such as of the Certificate Closing Date by such
Secretary or Assistant Secretary, duly authorizing the lease by the
Lessee of the Aircraft under the Lease and the execution, delivery
and performance by the Lessee of this Agreement, the Lease, the Tax
Indemnity Agreement, the Pass Through Agreement, the Series
Supplements, the other Operative Agreements to which the Lessee is
or is to be a party and each other document to be executed and
delivered by the Lessee in connection with the transactions
contemplated hereby;
(ii) a copy of the articles of incorporation and bylaws of the
Owner Participant and the Owner Participant Guarantor, certified by
the Secretary or an Assistant Secretary of the Owner Participant or
the Owner Participant Guarantor as of the Certificate Closing Date,
and a copy of the resolutions of the board of directors of the Owner
Participant, certified as such as of the Certificate Closing Date by
such Secretary or an Assistant Secretary, authorizing the execution
and delivery by the Owner Participant of this Agreement, the Tax
Indemnity Agreement, the Trust Agreement and the other Operative
Agreements to which the Owner Participant is or is to be a party and
each other document to be executed and delivered by the Owner
Participant in connection with the transactions contemplated hereby,
and a copy of the resolutions of the board of directors of the Owner
Participant Guarantor, certified as such as of the Certificate
Closing Date by the Secretary or an Assistant Secretary, authorizing
the execution and delivery by the Owner Participant Guarantor of the
Owner Participant Guaranty and the other Operative Agreements to
which such Owner Participant Guarantor is or is to be a party and
each other document to be executed and delivered by the Owner
Participant Guarantor in connection with the transactions
contemplated hereby;
(iii) a copy of the articles of association and by-laws and other
instruments of the Owner Trustee, certified by the Secretary or an
Assistant Secretary of the Owner Trustee as of the Certificate
Closing Date (or other like instruments satisfactory to the Lessee
and the Owner Participant) and evidence authorizing the execution,
delivery and performance by the Owner Trustee in its individual
capacity or as Owner Trustee, as the case may be, of this Agreement,
the Trust Agreement and each of the other Operative Agreements to
which it is or is to be a party, whether in its individual capacity
or as Owner Trustee, and each other document to be executed and
delivered by the Owner Trustee in connection with the transactions
contemplated hereby;
(iv) a copy of the articles of association and by-laws and
other instruments of the Indenture Trustee, certified by the
Secretary or an Assistant Secretary of the Indenture Trustee as of
the Certificate Closing Date (or other like instruments
satisfactory to the Lessee and the Owner Participant) and evidence
authorizing the execution, delivery and performance by the
Indenture Trustee of each of this Agreement, the Indenture and
each of the other Operative Agreements to which it is or is to be
a party, and each other document to be executed and delivered by
the Indenture Trustee in connection with the transactions
contemplated hereby;
(v) a copy of the articles of association and by-laws and other
instruments of the Pass Through Trustee, certified by the Secretary
or an Assistant Secretary of the Pass Through Trustee as of the
Certificate Closing Date (or other like instruments satisfactory to
the Lessee and the Owner Participant) and evidence authorizing the
execution, delivery and performance by the Pass Through Trustee of
this Agreement, the Pass Through Agreement, the Series Supplements
and each of the other Operative Agreements to which it is or is to be
a party, and each other document to be executed and delivered by the
Pass Through Trustee in connection with the transactions contemplated
hereby;
(vi) a copy of the articles of association and by-laws and other
instruments of the Subordination Agent, certified by the Secretary or
an Assistant Secretary of the Subordination Agent as of the
Certificate Closing Date (or other like instruments satisfactory to
the Lessee and the Owner Participant) and evidence authorizing the
execution, delivery and performance by the Subordination Agent of
this Agreement, the Intercreditor Agreement and each of the other
Operative Agreements to which it is or is to be a party, and each
other document to be executed and delivered by the Subordination
Agent in connection with the transactions contemplated hereby; and
(vii) such other documents, evidences, materials, and information
with respect to the Lessee, the Owner Trustee, the Indenture Trustee,
the Pass Through Trustee and the Owner Participant as the Indenture
Trustee, the Pass Through Trustee or the Owner Participant may
reasonably request in order to establish the consummation of the
transactions contemplated by this Agreement.
(h) Officer's Certificate of Lessee. On the Certificate Closing
Date, the following statements shall be true, and the Owner Participant,
the Owner Trustee, the Pass Through Trustee and the Indenture Trustee shall
have received a certificate signed by the Vice President and Treasurer or
any other duly authorized officer of the Lessee, dated the Certificate
Closing Date, stating that:
(i) the representations and warranties of the Lessee contained in
the Operative Agreements to which it is a party (excluding the Tax
Indemnity Agreement) and in any certificate delivered pursuant hereto
or thereto are true and correct on and as of the Certificate Closing
Date as though made on and as of such date (except to the extent that
such representations and warranties relate solely to an earlier date,
in which case such certificate shall state that such representations
and warranties were true and correct on and as of such earlier date);
(ii) except for the matters described (i) under "Legal
Proceedings" in the Lessee's Annual Report on Form 10-K for the
fiscal year ended May 31, 1996 (as updated by Note 7 to the financial
statements included in the Lessee's Quarterly Reports on Form 10-Q
for the fiscal quarters ended August 31, 1996, November 30, 1996 and
February 28, 1997) and (ii) in the Lessee's Current Reports on Form
8-K dated June 7, 1996, August 16, 1996 and March 4, 1997, as to
which such officer will make no certification concerning the
liability of the Lessee (if any), or the effect of any adverse
determination upon the consolidated financial condition, business or
operations of the Lessee, no material adverse change has occurred in
the financial condition, business or operations of the Lessee from
that shown in the audited financial statements of the Lessee as of
May 31, 1996 and nothing has occurred which will, in the judgment of
such officer, materially adversely affect the ability of the Lessee
to carry on its business or to perform its obligations under this
Agreement and each other Operative Agreement to which it is or is to
be a party; and
(iii) no event has occurred and is continuing, or would result
from the purchase, sale, mortgage, or lease of the Aircraft, which
constitutes an Event of Loss (or event which with the passage of time
would become an Event of Loss) with respect to the Airframe or any
Engine, or a Default or an Event of Default under the Lease.
(i) Officer's Certificate of Owner Participant and Owner Participant
Guarantor. On the Certificate Closing Date, the following statements shall
be true, and the Lessee, the Pass Through Trustee, the Owner Trustee and
the Indenture Trustee shall have received a certificate from (i) the Owner
Participant, signed by a duly authorized officer of the Owner Participant
dated the Certificate Closing Date, stating that:
(i) the representations and warranties of the Owner Participant
contained in this Agreement, the Trust Agreement and any other
Operative Agreement to which it is a party (excluding the Tax
Indemnity Agreement) and in any certificate delivered pursuant hereto
or thereto, are true and correct on and as of the Certificate Closing
Date as though made on and as of such date (except to the extent that
such representations and warranties relate solely to an earlier date,
in which case such certificate shall state that such representations
and warranties were true and correct on and as of such earlier date);
(ii) no Lessor's Liens attributable to the Owner Participant
exist; and
(iii) no event has occurred and is continuing which constitutes
or, with notice or lapse of time or both would constitute, due to any
action or omission on the part of the Owner Participant, an Indenture
Event of Default other than an Indenture Event of Default
attributable to a Lease Event of Default.
and (ii) from the Owner Participant Guarantor, signed by a duly authorized
officer of such Owner Participant Guarantor dated the Certificate Closing
Date, stating that the representations and warranties of such Owner
Participant Guarantor contained in its Owner Participant Guaranty and in
any certificate delivered at the closing pursuant thereto are true and
correct on and as of the Certificate Closing Date as though made on and as
of such date (except to the extent that such representations and warranties
relate solely to an earlier date, in which case such certificate shall
state that such representations and warranties were true and correct on and
as of such earlier date).
(j) Other Officer's Certificates. On the Certificate Closing Date,
the following statements shall be true, and the Lessee, the Pass Through
Trustee, the Owner Trustee, the Subordination Agent and the Indenture
Trustee shall have received a certificate from each of SSB and the Owner
Trustee (in the case of the Lessee, the Pass Through Trustee, the
Subordination Agent and the Indenture Trustee), FSB and the Indenture
Trustee (in the case of the Lessee, the Pass Through Trustee, the
Subordination Agent and the Owner Trustee), FSB and the Pass Through
Trustee (in the case of the Lessee, the Indenture Trustee, the
Subordination Agent and the Owner Trustee) and FSB and the Subordination
Agent (in the case of the Lessee, the Pass Through Trustee, the Indenture
Trustee and the Owner Trustee), signed by a duly authorized officer of SSB
and FSB, respectively, dated the Certificate Closing Date, stating with
respect to SSB and the Owner Trustee, with respect to FSB and the Indenture
Trustee, with respect to FSB and the Pass Through Trustee or with respect
to FSB and the Subordination Agent, as the case may be, that:
(i) the representations and warranties of SSB in its individual
capacity and as Owner Trustee, of FSB in its individual capacity and
as Indenture Trustee, of FSB in its individual capacity and as Pass
Through Trustee or of FSB in its individual capacity and as
Subordination Agent contained in this Agreement, the Lease, the Trust
Agreement and the Indenture and in any certificate delivered pursuant
hereto or thereto are true and correct on and as of the Certificate
Closing Date as though made on and as of such date (except to the
extent that such representations and warranties relate solely to
an earlier date, in which case such certificate shall state that
such representations and warranties were true and correct on and
as of such earlier date);
(ii) to the best of its knowledge, no event has occurred and is
continuing, which constitutes or which, but for the lapse of time or
the giving of notice, or both, would constitute, due to any action or
omission on the part of SSB in its individual capacity or as Owner
Trustee, of FSB in its individual capacity or as Indenture Trustee,
of FSB in its individual capacity or as Pass Through Trustee, an
Event of Default or an Indenture Event of Default or of FSB in its
individual capacity or as Subordination Agent, an Event of Default or
an Indenture Event of Default; and
(iii) there are no Lessor's Liens attributable to the Owner
Trustee or SSB and no Indenture Trustee's Liens.
(k) Legal Opinions. The Owner Participant, the Underwriters, the
Lessee, the Owner Trustee, the Pass Through Trustee and the Indenture
Trustee (acting directly or by authorization to its special counsel) shall
have received from the following counsel their respective legal opinions in
each case satisfactory to the Owner Participant, the Underwriters, the
Lessee, the Owner Trustee, the Pass Through Trustee or the Indenture
Trustee, as the case may be, as to scope and substance (and covering such
other matters as the recipient may reasonably request) and dated the
Certificate Closing Date:
(i) George W. Hearn, Vice President - Law of the Lessee, in the
form of Exhibit A(1)(a)(i) hereto and addressed to the Underwriters,
the Owner Participant, the Owner Trustee, the Pass Through Trustee,
each Liquidity Provider and the Indenture Trustee;
(ii) Simpson Thacher & Bartlett, special counsel for the Owner
Participant and the Owner Participant Guarantor, in the form of
Exhibit A(2)(a) hereto and the General Counsel's Office of the Owner
Participant and the Owner Participant Guarantor, in the form of
Exhibit A(2)(b) hereto, each addressed to the Underwriters, the Owner
Participant, the Indenture Trustee, the Owner Trustee, the Pass
Through Trustee, each Liquidity Provider and the Lessee;
(iii) Ray, Quinney & Nebeker, special counsel for the Indenture
Trustee, in the form of Exhibit A(3) hereto and addressed to the
Underwriters, the Owner Participant, the Indenture Trustee, the Owner
Trustee, the Pass Through Trustee, each Liquidity Provider and the
Lessee;
(iv) Bingham, Dana & Gould LLP, special counsel for the Owner
Trustee, in the form of Exhibit A(4)(a)(i) hereto and addressed to
the Underwriters, the Owner Participant, the Indenture Trustee, the
Owner Trustee, the Pass Through Trustee, each Liquidity Provider and
the Lessee;
(v) Davis Polk & Wardwell, special counsel for the Lessee, in the
form of Exhibit A(1)(b)(i) hereto and addressed to the Underwriters,
the Owner Participant, the Indenture Trustee, the Owner Trustee, the
Pass Through Trustee, each Liquidity Provider and the Lessee;
(vi) Ray, Quinney & Nebeker, special counsel for the Pass Through
Trustee and the Subordination Agent, in the form of Exhibit A(5)
hereto and addressed to the Underwriters, the Owner Participant, the
Indenture Trustee, the Owner Trustee, the Pass Through Trustee, each
Liquidity Provider and the Lessee; and
(vii) Johan Tyteca, Esq., manager of the Legal Department of
Kredietbank N.V., in the form of Exhibit A(6)(a) hereto, and Milbank,
Tweed, Hadley & McCloy, special counsel for the Liquidity Providers,
in the form of Exhibit A(6)(b) hereto, each addressed to the Pass
Through Trustee, the Subordination Agent, each Liquidity Provider and
the Lessee.
(l) No Indenture Event of Default. No Indenture Event of Default or
Indenture Default has occurred and is continuing.
(m) Event of Default; Default; Event of Loss. No Default or Event
of Default under the Lease or Event of Loss or event, which with the
passage of time or if continued unremedied or unaltered would constitute an
Event of Loss, shall have occurred or be in existence.
(n) Other Agreements. The Lessee and the Pass Through Trustee
shall have entered into the Pass Through Agreement and the Series
Supplements, all conditions to the effectiveness of each thereof shall
have been satisfied or waived, and the Pass Through Certificates shall
have been issued pursuant to the Series Supplements. The Lessee and the
Underwriters shall have entered into the Underwriting Agreement, all
conditions to the effectiveness thereof shall have been satisfied or
waived, and the Pass Through Certificates shall have been delivered
pursuant to the Underwriting Agreement. All conditions to the
effectiveness of each Liquidity Facility shall have been satisfied or
waived.
(o) Payment of Taxes. (A) All taxes, fees, charges, assessments,
costs and other expenses then due and payable in connection with the
execution, delivery, recording and filing of all financing statements
referred to in subparagraph (f) of this Section 4.01, or in connection with
the issuance of the Certificates shall have been duly paid or caused to be
paid in full; and (B) all sales or use taxes and duties related to the
consummation of the transactions contemplated by the Operative Agreements
on the Certificate Closing Date which are then due and payable shall have
been duly paid in full.
(p) Governmental Compliance. All appropriate action required to
have been taken by the FAA, the SEC, or any governmental or political
agency, subdivision or instrumentality of the United States, prior to the
Certificate Closing Date in connection with the transactions contemplated
by this Agreement shall have been taken, and all orders, permits, waivers,
authorizations, exemptions and approvals (collectively "permits") of such
entities required to be in effect on the Certificate Closing Date in
connection with the transactions contemplated by this Agreement shall have
been issued, and all such permits shall be in full force and effect on the
Certificate Closing Date.
(q) Section 131.3 of the New York State Banking Law Filing. SSB
shall have delivered evidence of its filing made with the New York
Superintendent of Banking pursuant to Section 131.3 of the New York State
Banking Law.
Section 4.02. Conditions Precedent (Delivery Date). Subject to the
last paragraph of this Section 4.02, the obligations of the Owner Trustee, the
Owner Participant, the Indenture Trustee, the Subordination Agent and the Pass
Through Trustee on behalf of each Pass Through Trust to participate in the
transactions contemplated hereby on the Delivery Date are subject to the
fulfillment to the satisfaction of each party (or waiver by such party), prior
to or on the Delivery Date, of the following conditions precedent (it being
understood that receipt by the Lessee of any of the following documents shall
not be a condition precedent to the obligation of any party):
(a) Notice, Etc. Each party hereto shall have received a Delivery
Notice pursuant to Section 3.01 hereof at least three (3) Business Days
prior to the Delivery Date.
(b) Legal Investment. No change shall have occurred after the
Certificate Closing Date and on or prior to the Delivery Date in applicable
laws or regulations, or interpretations of any such laws or regulations by
applicable regulatory authorities, which, in the opinion of the Owner
Participant or its special counsel, the Pass Through Trustee, the
Subordination Agent or the Indenture Trustee or their special counsel,
would make it illegal for the Owner Participant, the Lessee, the Owner
Trustee, the Pass Through Trustee, the Subordination Agent or the Indenture
Trustee, and no change in circumstances shall have occurred which would
otherwise make it illegal or otherwise in contravention of guidance issued
by regulatory authorities for the Owner Participant, the Lessee, the Owner
Trustee, the Pass Through Trustee, the Subordination Agent or the Indenture
Trustee, to participate in the transactions to be consummated on the
Delivery Date; and no action or proceeding shall have been instituted nor
shall governmental action before any court, governmental authority or
agency be threatened which in the opinion of counsel for the Owner
Participant, the Indenture Trustee, the Subordination Agent or the Pass
Through Trustee is not frivolous, nor shall any order have been issued or
proposed to be issued by any court, or governmental authority or agency, as
of the Delivery Date, to set aside, restrain, enjoin or prevent the
consummation of any of the transactions contemplated by this Agreement or
by any of the other Operative Agreements.
(c) Documents. The documents referred to in Section 4.01(d) hereof
shall each be in full force and effect and the following documents shall
have been duly authorized, executed and delivered by the respective party
or parties thereto, shall each be satisfactory in form and substance to the
Lessee, the Owner Trustee, the Indenture Trustee, the Pass Through Trustee,
the Subordination Agent and the Owner Participant (each acting directly or
by authorization to its special counsel) and shall each be in full force
and effect; there shall not have occurred any default thereunder, or any
event which with the lapse of time or the giving of notice or both would be
a default thereunder, and copies executed or certified as requested by the
Lessee, the Owner Trustee, the Indenture Trustee, the Pass Through Trustee
or the Owner Participant, as the case may be, of such documents shall have
been delivered to the Owner Participant, the Lessee, the Indenture Trustee,
the Pass Through Trustee and the Owner Trustee (provided that the sole
chattel-paper original of the Lease Supplement shall be delivered to the
Indenture Trustee):
(i) the Lease Supplement covering the Aircraft, dated the Delivery
Date;
(ii) an Indenture and Security Agreement Supplement covering the
Aircraft, dated the Delivery Date;
(iii) the Invoice;
(iv) AVSA's FAA Bill of Sale, AVSA's Warranty Bill of Sale and the
Airbus Guaranty;
(v) the Consent and Agreement and the AVSA Consent and Agreement;
and
(vi) the Engine Warranty Assignment and the Engine Consent.
(d) Legal Opinions. The Owner Participant, the Underwriters, the
Lessee, the Owner Trustee, the Pass Through Trustee and the Indenture
Trustee (acting directly or by authorization to its special counsel) shall
have received from the following counsel their respective legal opinions in
each case satisfactory to the Owner Participant, the Underwriters, the
Lessee, the Owner Trustee, the Pass Through Trustee or the Indenture
Trustee, as the case may be, as to scope and substance (and covering such
other matters as the recipient may reasonably request) and dated the
Delivery Date:
(i) George W. Hearn, Vice President - Law of the Lessee, in the
form of Exhibit A(1)(a)(ii) hereto and addressed to the Underwriters,
the Owner Participant, the Owner Trustee, the Pass Through Trustee,
each Liquidity Provider and the Indenture Trustee;
(ii) Davis Polk & Wardwell, special counsel for the Lessee, in the
form of Exhibit A(1)(b)(ii) hereto and addressed to the Underwriters,
the Owner Participant, the Indenture Trustee, the Owner Trustee, the
Pass Through Trustee, each Liquidity Provider and the Lessee;
(iii) Bingham, Dana & Gould LLP, special counsel for the Owner
Trustee, in the form of Exhibit A(4)(a)(ii) hereto and addressed to
the Underwriters, the Owner Participant, the Indenture Trustee, the
Owner Trustee, the Pass Through Trustee, each Liquidity Provider and
the Lessee;
(iv) counsel for the Engine Manufacturer, in the form of Exhibit
A(7) hereto and addressed to the Underwriters, the Owner Participant,
the Indenture Trustee, the Owner Trustee, the Pass Through Trustee,
each Liquidity Provider and the Lessee;
(v) Clifford Chance, special counsel for AVSA and the
Manufacturer, in the form of Exhibit A(8) hereto and addressed to the
Underwriters, the Owner Participant, the Indenture Trustee, the Owner
Trustee, the Pass Through Trustee, each Liquidity Provider and the
Lessee;
(vi) Daugherty, Fowler & Peregrin, special aviation counsel, in
the form of Exhibit A(9) hereto and addressed to the Underwriters,
the Owner Participant, the Indenture Trustee, the Owner Trustee, the
Pass Through Trustee, each Liquidity Provider and the Lessee; and
(vii) in the case of the Owner Participant only, Simpson
Thacher & Bartlett, tax counsel to the Owner Participant,
addressed to the Owner Participant, with respect to certain tax
matters.
(e) Title, Airworthiness and Registration. On the Delivery Date,
the following statements shall be true, and the Owner Participant, the
Indenture Trustee, the Pass Through Trustee and the Owner Trustee shall
have received evidence from the Lessee reasonably satisfactory to the
Owner Participant, the Indenture Trustee, the Pass Through Trustee and
the Owner Trustee to the effect that:
(i) the Owner Trustee has good and marketable title (subject to
filing and recording of AVSA's FAA Bill of Sale with the Aeronautics
Authority) to the Aircraft, free and clear of Liens, except the
rights of the Owner Trustee and the Lessee under the Lease and the
Lease Supplement covering the Aircraft, the rights of the Indenture
Trustee under the Indenture and the beneficial interest of the Owner
Participant created by the Trust Agreement and the interest of the
Certificate Holders created by the Indenture and the Indenture and
Security Agreement Supplement covering the Aircraft, which evidence
shall include AVSA's FAA Bill of Sale, AVSA's Warranty Bill of Sale
and the Airbus Guaranty;
(ii) the Aircraft has been duly certificated by the Aeronautics
Authority as to type and airworthiness in accordance with the terms
of the Operative Agreements;
(iii) AVSA's FAA Bill of Sale, the Lease and Lease Supplement
covering the Aircraft, the Indenture and the Indenture and Security
Agreement Supplement covering the Aircraft and the Trust Agreement
shall have been duly filed for recordation (or shall be in the
process of being so duly filed for recordation) with the Aeronautics
Authority pursuant to the Transportation Code; and
(iv) application to the Aeronautics Authority for registration of
the Aircraft in the name of the Owner Trustee shall have been duly
made and the Lessee shall have temporary or permanent authority to
operate the Aircraft.
(f) Financing Statements. A UCC notice filing describing the Lease
as a lease shall have been executed and delivered by the Owner Trustee, as
lessor, and the Lessee, as lessee (which filing shall name the Indenture
Trustee as assignee of the Owner Trustee) and shall have been duly filed in
the State of Tennessee.
(g) Payments. The Owner Participant shall have made available its
Commitment to the Owner Trustee and the other payments contemplated by
Section 3.02 hereof shall have been made.
(h) Report of Aircraft Expert. The Owner Participant shall have
received a report prepared by BK Associates, Inc. addressed to the Owner
Participant (with an abbreviated report to the Lessee) which report shall
be in form and substance satisfactory to the Owner Participant to the
effect, among other things, that on the Delivery Date:
(i) (A) the estimated fair market value of the Aircraft net of
any cost to the Owner Participant or the Owner Trustee of return at
the end of the Basic Term and any Fixed Renewal Term (determined
without including in such value any increase or decrease for
inflation or deflation during the Term) is equal to or greater than
20% of the Purchase Price for the Aircraft and (B) at least 20% of
the useful economic life of the Aircraft will be remaining at the end
of the Basic Term and any Fixed Renewal Term;
(ii) the estimated useful life of the Aircraft is at least 133% of
the Basic Term and any Fixed Renewal Term;
(iii) the Purchase Price of the Aircraft is no greater than the
fair market value of the Aircraft on the Delivery Date;
(iv) on the Delivery Date, the Aircraft will not require any
modifications, improvements or additions in order to be rendered
complete for its intended purpose by the Lessee;
(v) the amount payable by the Lessee upon the exercise of its
purchase option pursuant to Section 4.02(a)(F) of the Lease equals or
exceeds the currently estimated Fair Market Value of the Aircraft on
such date (taking into account inflation or deflation to such date);
and
(vi) the Aircraft is not limited use property.
(i) Insurance. Each of the Indenture Trustee, the Pass Through
Trustee, the Owner Trustee and the Owner Participant shall have received
such evidence as it deems appropriate, including, without limitation, an
independent insurance broker's report, together with certificates of
insurance from such broker, in form and substance satisfactory to the
Indenture Trustee, the Pass Through Trustee, the Owner Trustee and the
Owner Participant to establish that the insurance required by Article 13 of
the Lease is in effect.
(j) Payment of Taxes. (A) All taxes, fees, charges, assessments,
costs and other expenses then due and payable in connection with the
execution, delivery, recording and filing of all financing statements and
the documents and instruments referred to in subparagraphs (e) and (f) of
this Section 4.02, or in connection with the purchase of the Aircraft by
the Owner Trustee and the making by the Owner Participant of its equity
investment shall have been duly paid or caused to be paid in full; and (B)
all sales or use taxes and duties related to the consummation of the
transactions contemplated by the Operative Agreements on the Delivery Date
which are then due and payable shall have been duly paid in full.
(k) No Indenture Event of Default. No Indenture Event of Default or
Indenture Default has occurred and is continuing.
(l) Event of Default; Default; Event of Loss. No Default or Event
of Default under the Lease (assuming, for this purpose, that the provisions
of Article 16 of the Lease had become operative on the Certificate Closing
Date and not the Delivery Date) or Event of Loss or event, which with the
passage of time or if continued unremedied or unaltered would constitute an
Event of Loss, shall have occurred or be in existence.
(m) Governmental Compliance. All appropriate action required to
have been taken by the FAA, the SEC, or any governmental or political
agency, subdivision or instrumentality of the United States, prior to the
Delivery Date in connection with the transactions contemplated by this
Agreement shall have been taken, and all orders, permits, waivers,
authorizations, exemptions and approvals (collectively "permits") of such
entities required to be in effect on the Delivery Date in connection with
the transactions contemplated by this Agreement shall have been issued, and
all such permits shall be in full force and effect on the Delivery Date.
(n) Officer's Certificate of Lessee. On the Delivery Date, the
following statements shall be true, and the Owner Participant, the Owner
Trustee, the Pass Through Trustee and the Indenture Trustee shall have
received a certificate signed by the Vice President and Treasurer or any
other duly authorized officer of the Lessee, dated the Delivery Date,
stating that:
(i) the representations and warranties of the Lessee contained in
the Operative Agreements to which it is a party (excluding the Tax
Indemnity Agreement) and in any certificate delivered pursuant hereto
or thereto are true and correct on and as of the Delivery Date as
though made on and as of such date (except to the extent that such
representations and warranties relate solely to an earlier date, in
which case such certificate shall state that such representations and
warranties were true and correct on and as of such earlier date);
(ii) except for the matters described (i) under "Legal
Proceedings" in the Lessee's Annual Report on Form 10-K for the
fiscal year ended May 31, 1996 (as updated by Note 7 to the financial
statements included in the Lessee's Quarterly Reports on Form 10-Q
for the fiscal quarters ended August 31, 1996, November 30, 1996 and
February 28, 1997) and (ii) in the Lessee's Current Reports on Form
8-K dated June 7, 1996, August 16, 1996 and March 4, 1997, as to
which such officer will make no certification concerning the
liability of the Lessee (if any), or the effect of any adverse
determination upon the consolidated financial condition, business or
operations of the Lessee, no material adverse change has occurred in
the financial condition, business or operations of the Lessee from
that shown in the audited financial statements of the Lessee as of
May 31, 1996 and nothing has occurred which will, in the judgment of
such officer, materially adversely affect the ability of the Lessee
to carry on its business or to perform its obligations under this
Agreement and each other Operative Agreement to which it is or is to
be a party; and
(iii) no event has occurred and is continuing, or would result
from the purchase, sale, mortgage, or lease of the Aircraft, which
constitutes an Event of Loss (or event which with the passage of time
would become an Event of Loss) with respect to the Airframe or any
Engine, or a Default or an Event of Default under the Lease.
(o) Officer's Certificate of Owner Participant and Owner Participant
Guarantor. On the Delivery Date, the following statements shall be true,
and the Lessee, the Pass Through Trustee, the Owner Trustee and the
Indenture Trustee shall have received a certificate from the Owner
Participant, signed by a duly authorized officer of (i) the Owner
Participant dated the Delivery Date, stating that:
(i) the representations and warranties of the Owner Participant
contained in this Agreement, the Trust Agreement and any other
Operative Agreement (excluding the Tax Indemnity Agreement) to which
it is a party and in any certificate delivered pursuant hereto or
thereto, are true and correct on and as of the Delivery Date as
though made on and as of such date (except to the extent that such
representations and warranties relate solely to an earlier date, in
which case such certificate shall state that such representations and
warranties were true and correct on and as of such earlier date);
(ii) no Lessor's Liens attributable to the Owner Participant
exist; and
(iii) no event has occurred and is continuing which constitutes
or, with notice or lapse of time or both would constitute, due to any
action or omission on the part of the Owner Participant, an Indenture
Event of Default other than an Indenture Event of Default
attributable to a Lease Event of Default.
and (ii) from the Owner Participant Guarantor, signed by a duly authorized
officer of such Owner Participant Guarantor dated the Certificate Closing
Date, stating that the representations and warranties of such Owner
Participant Guarantor contained in its Owner Participant Guaranty and in
any certificate delivered at the closing pursuant thereto are true and
correct on and as of the Certificate Closing Date as though made on and as
of such date (except to the extent that such representations and warranties
relate solely to an earlier date, in which case such certificate shall
state that such representations and warranties were true and correct on and
as of such earlier date).
(p) Other Officer's Certificates. On the Delivery Date, the
following statements shall be true, and the Owner Participant, the Lessee,
the Pass Through Trustee, the Owner Trustee, the Subordination Agent and
the Indenture Trustee shall have received a certificate from each of SSB
and the Owner Trustee (in the case of the Lessee, the Pass Through Trustee,
the Owner Participant, the Subordination Agent and the Indenture Trustee),
FSB and the Indenture Trustee (in the case of the Lessee, the Pass Through
Trustee, the Owner Participant, the Subordination Agent and the Owner
Trustee), FSB and the Pass Through Trustee (in the case of the Lessee, the
Indenture Trustee, the Owner Participant, the Subordination Agent and the
Owner Trustee) and FSB and the Subordination Agent (in the case of the
Lessee, the Indenture Trustee, the Owner Participant, the Pass Through
Trustee and the Owner Trustee) signed by a duly authorized officer of SSB
and FSB, respectively, dated the Delivery Date, stating with respect to SSB
and the Owner Trustee, with respect to FSB and the Indenture Trustee, with
respect to FSB and the Pass Through Trustee or with respect to FSB and the
Subordination Agent, as the case may be, that:
(i) the representations and warranties of SSB in its individual
capacity and as Owner Trustee, of FSB in its individual capacity and
as Indenture Trustee, of FSB in its individual capacity and as Pass
Through Trustee or of FSB in its individual capacity and as
Subordination Agent contained in this Agreement, the Lease, the Trust
Agreement and the Indenture and in any certificate delivered pursuant
hereto or thereto are true and correct on and as of the Delivery Date
as though made on and as of such date (except to the extent that such
representations and warranties relate solely to an earlier date, in
which case such certificate shall state that such representations and
warranties were true and correct on and as of such earlier date);
(ii) to the best of its knowledge, no event has occurred and is
continuing, which constitutes or which, but for the lapse of time or
the giving of notice, or both, would constitute, due to any action or
omission on the part of SSB in its individual capacity or as Owner
Trustee, of FSB in its individual capacity or as Indenture Trustee,
of FSB in its individual capacity or as Pass Through Trustee, an
Event of Default or an Indenture Event of Default or of FSB in its
individual capacity or as Subordination Agent, an Event of Default or
an Indenture Event of Default; and
(iii) there are no Lessor's Liens attributable to the Owner
Trustee or SSB and no Indenture Trustee's Liens affecting the Trust
Indenture Estate or the Lessor's Estate or any part thereof.
(q) Release of Debt Portion. The Indenture Trustee shall have
released the Debt Portion from (or such lesser amount as may then be held
in) the Collateral Account or if the proviso to Section 3.02(a) is
applicable, then the Lessee shall have made the payment required to be made
to AVSA pursuant to such proviso.
Notwithstanding anything else to the contrary in this Section 4.02, it shall
not be a condition precedent to the obligations of the Indenture Trustee, the
Pass Through Trustee or the Subordination Agent that the conditions in Section
4.02(n) and (o) be satisfied if the Lessee certifies that the failure to
fulfill such condition precedent is not reasonably likely to materially
adversely affect the holders of Pass Through Certificates and, in the event of
such failure, there has been delivered to the Indenture Trustee written
confirmation from both Moody's and S&P of the rating on any class of Pass
Through Certificates.
Section 4.03. Opinion of Special Aviation Counsel Upon Registration.
Promptly upon the registration of the Aircraft and the filing and, where
appropriate, recordation pursuant to the Transportation Code, of AVSA's FAA
Bill of Sale, the Trust Agreement, the Lease (with the Lease Supplement
covering the Aircraft, the Indenture and the Indenture and Security Agreement
Supplement covering the Aircraft attached as exhibits) and the Indenture (with
the Indenture and Security Agreement Supplement covering the Aircraft attached
as an exhibit), the Lessee shall cause Special Aviation Counsel to deliver to
the Owner Participant, the Lessee, the Owner Trustee, the Pass Through Trustee
and the Indenture Trustee an opinion as to (i) the due registration of the
Aircraft in the name of the Owner Trustee, (ii) the due recording pursuant to
the Transportation Code of AVSA's FAA Bill of Sale, the Trust Agreement, the
Lease (with such Lease Supplement, the Indenture and such Indenture and
Security Agreement Supplement attached as exhibits), and the Indenture (with
such Indenture and Security Agreement Supplement attached as an exhibit), and
(iii), subject to customary qualifications, the lack of any intervening
documents with respect to the Aircraft.
ARTICLE 5
CONDITIONS PRECEDENT TO LESSEE'S OBLIGATIONS
Section 5.01. Conditions Precedent to Lessee's Obligations. The
Lessee's obligation to participate in the transactions contemplated hereby on
the Certificate Closing Date is subject to the conditions that, prior to or on
the Certificate Closing Date, the Lessee shall have received the certificates
and other documents which are referred to in, or the opinions to be addressed
to it under, as the case may be, paragraphs (d), (g)(ii)-(v), (i), (j),
(k)(ii)-(vi) of Section 4.01 hereof and the Underwriters shall have made
available the amounts required to be paid by them pursuant to Section 2.01
hereof, and the Lessee's obligation to participate in the transactions
contemplated hereby on the Delivery Date, is subject to the conditions that,
on or prior to the Delivery Date, the Lessee shall have received the documents
which are referred to in, or the opinions to be addressed to it under, as the
case may be, paragraphs (c) and (d)(ii)-(v) of Section 4.02 hereof and the
Indenture Trustee shall have released the Debt Portion from (or such lesser
amount as may then be held in) the Collateral Account.
ARTICLE 6
LESSEE'S REPRESENTATIONS, WARRANTIES AND COVENANTS
Section 6.01. Lessee's Representations and Warranties. The Lessee
represents and warrants to the Owner Participant, the Owner Trustee (in its
individual capacity and as Owner Trustee), the Pass Through Trustee (in its
individual capacity and as Pass Through Trustee), each Liquidity Provider and
the Indenture Trustee (in its individual capacity and as Indenture Trustee)
that, on the date hereof and as of the Certificate Closing Date and the
Delivery Date (unless any such representation is specifically made as of one
date):
(a) the Lessee is a corporation duly organized and validly existing
and is in good standing under the laws of the State of Delaware with its
principal place of business and chief executive office (as such terms are
used in Article 9 of the Uniform Commercial Code) in Memphis, Tennessee,
and is duly qualified to do business as a foreign corporation and is in
good standing in all jurisdictions in which it has intrastate routes, or
offices or major overhaul facilities or in which other activities of the
Lessee require such qualification;
(b) the Lessee has full power, authority and legal right to conduct
its business and operations as currently conducted and to own or hold under
lease its Properties and to enter into and perform its obligations under
this Agreement, the other Operative Agreements to which it is a party, the
Pass Through Agreement and the Series Supplements (the "Lessee Documents");
(c) the Lessee is an "air carrier" within the meaning of the
Transportation Code and a holder of a certificate under Sections 41102(a)
and 41103 of the Transportation Code and a "citizen of the United States"
within the meaning of Section 40102(a)(15) of the Transportation Code
holding an "air carrier operating certificate" issued under Chapter 447 of
the Transportation Code for aircraft capable of carrying ten (10) or more
individuals or 6,000 pounds or more of cargo, and each such certificate is
in full force and effect;
(d) the Lessee possesses all necessary certificates, franchises,
licenses, permits, rights and concessions and consents (collectively
"permits") which are material to the operation of the routes flown by it
and the conduct of its business and operations as currently conducted and
each such permit is in full force and effect;
(e) the execution, delivery and performance of the Lessee Documents
by the Lessee have been duly authorized by all necessary corporate action
on the part of the Lessee and do not require any stockholder approval, or
approval or consent of any trustee or holder of any indebtedness or
obligations of the Lessee, and each such document has been duly executed
and delivered or, in the case of the Operative Agreements identified in
Section 4.02(c) hereof, will on the Delivery Date be executed and delivered
by the Lessee and constitutes (or will constitute, as the case may be) the
legal, valid and binding obligations of the Lessee enforceable against it
in accordance with the terms thereof except as such enforceability may be
limited by bankruptcy, insolvency, moratorium, reorganization or other
similar laws or equitable principles of general application to or affecting
the enforcement of creditors' rights generally (regardless of whether
enforceability is considered in a proceeding in equity or at law);
(f) no authorization, consent or approval of or other action by, and
no notice to or filing with, any United States federal or state
governmental authority or regulatory body (other than the SEC) is required
for the execution, delivery or performance by the Lessee of the Lessee
Documents or for the use and maintenance of the Aircraft except for such
registrations, applications and recordings referred to in the opinions of
Special Aviation Counsel delivered or to be delivered pursuant to Sections
4.02(d)(iii) and 4.03 hereof and except for the filings referred to in
Sections 4.01(f) and 4.02(f) hereof, all of which shall have been duly
obtained or made and shall be in full force and effect on and as of the
Certificate Closing Date or the Delivery Date, or as contemplated by said
Sections;
(g) neither the execution, delivery or performance by the Lessee of
the Lessee Documents nor compliance with the terms and provisions hereof or
thereof, conflicts or will conflict with or results or will result in a
breach or violation of any of the terms, conditions or provisions of, or
will require any consent (other than the Consent and Agreement, the AVSA
Consent and Agreement, the Engine Consent and the Consent and Guaranty) or
approval under, any law, governmental rule or regulation or the charter
documents, as amended, or bylaws, as amended, of the Lessee or any order,
writ, injunction or decree of any court or governmental authority against
the Lessee or by which it or any of its Properties is bound or any
indenture, mortgage or contract or other agreement or instrument to which
the Lessee is a party or by which it or any of its Properties is bound, or
constitutes or will constitute a default thereunder or results or will
result in the imposition of any Lien upon any of its Properties;
(h) there are no pending or, to the knowledge of the Lessee,
threatened actions, suits, investigations or proceedings (whether or not
purportedly on behalf of the Lessee) against or affecting the Lessee or any
of its Property before or by any court or administrative agency which (A)
involve the Aircraft, (B) except for the matters described (i) under "Legal
Proceedings" in the Lessee's Annual Report on Form 10-K for the fiscal year
ended May 31, 1996 (as updated by Note 7 to the financial statements
included in the Lessee's Quarterly Reports on Form 10-Q for the fiscal
quarters ended August 31, 1996, November 30, 1996 and February 28, 1997)
and (ii) in the Lessee's Current Reports on Form 8-K dated June 7, 1996,
August 16, 1996 and March 4, 1997, as to which no representation is made
concerning the Lessee's liability (if any) or the effect of any adverse
determination upon the consolidated financial condition, business or
operations of the Lessee, if adversely determined, would materially and
adversely affect the consolidated financial condition, business or
operations of the Lessee, or (C) if adversely determined would adversely
affect the ability of the Lessee to perform its obligations under the
Lessee Documents;
(i) the Lessee has filed or caused to be filed all tax returns which
are required to be filed and has paid or caused to be paid all taxes shown
to be due and payable pursuant to such returns or pursuant to any
assessment received by the Lessee (other than assessments the payment of
which is being contested in good faith by the Lessee by appropriate
proceedings that do not involve any material danger of sale, forfeiture or
loss of the Aircraft or any part thereof), and the Lessee has no knowledge
of any related actual or proposed deficiency or additional assessment which
either in any case or in the aggregate would materially adversely affect
the Lessee's consolidated financial condition (other than, in any such case,
assessments, the payment of which is being contested in good faith by the
Lessee, as to which no representation is made concerning the Lessee's
liability (if any) or the effect of any adverse determination upon the
Lessee's consolidated financial condition);
(j) except for (A) the registration in the Owner Trustee's name of
the Aircraft pursuant to the Transportation Code to be accomplished by
filing with the FAA, of AVSA's FAA Bill of Sale, the Trust Agreement, the
Affidavits and the Application, (B) the filing with and, where appropriate,
recordation by the FAA pursuant to the Transportation Code of the
Indenture, the Indenture and Security Agreement Supplement covering the
Aircraft, the Lease and the Lease Supplement covering the Aircraft, (C) the
filing of the financing statements referred to in Sections 4.01(f) and
4.02(f) hereof and (D)(x) on the Certificate Closing Date, the taking of
possession by the Indenture Trustee of the Liquid Collateral and
maintaining possession by the Indenture Trustee thereof as contemplated in
Section 2.14(a) of the Indenture and (y) on the Delivery Date, the taking
of possession by the Indenture Trustee of the original counterpart of the
Lease and the Lease Supplement covering the Aircraft, no further action,
including any filing or recording of any document, is necessary or
advisable in order (i) to establish the Owner Trustee's title to and
interest in the Aircraft and the Lessor's Estate as against the Lessee and
any third parties, or (ii) to perfect the first security interest in and
mortgage Lien on the Trust Indenture Estate in favor of the Indenture
Trustee;
(k) on the Delivery Date, the Owner Trustee has received good and
marketable title to the Aircraft, free and clear of all Liens, except the
rights of the Lessee under the Lease and the Lease Supplement, the rights
of the Indenture Trustee under the Indenture and the beneficial interest of
the Owner Participant created by the Trust Agreement;
(l) the Lessee has heretofore delivered to the Owner Participant
true and correct copies of the Lessee's Annual Report on Form 10-K for the
fiscal year ended May 31, 1996 and its Quarterly Reports on Form 10-Q for
the fiscal quarters ended August 31, 1996, November 30, 1996 and February
28, 1997, and of the audited consolidated balance sheet of the Lessee for
the fiscal year ended May 31, 1996 and the unaudited consolidated balance
sheets of the Lessee as of August 31, 1996, November 30, 1996 and February
28, 1997, and the related consolidated statements of income, changes in
common stockholders' investment and cash flows for the fiscal year and
interim reporting periods ended on such dates, accompanied (except in the
case of such interim reporting periods) by a report thereon containing
opinions without qualification, except as therein noted, by Arthur Andersen
LLP, independent public accountants; said financial statements have been
prepared in accordance with generally accepted accounting principles
consistently applied and present fairly the financial position of the
Lessee as of such dates and the results of its operations and cash flows
for such periods and such Annual Report, Quarterly Reports and financial
statements did not, as of their respective dates of filing with the SEC,
contain any untrue statement of a material fact or omit a material fact
necessary to make the statements contained therein not misleading;
(m) with respect to ERISA:
(i) none of the Pension Plans (as defined at the end of this
Section 6.01(m)) nor their related trusts have been terminated in a
distress termination pursuant to Section 4041(c) of ERISA or by the
Pension Benefit Guaranty Corporation (together with any successor
agency or instrumentality thereto, the "PBGC") pursuant to Section
4042 of ERISA, nor have any actions been taken to so terminate any
Pension Plan or related trust and neither the Lessee nor any ERISA
Affiliate (as defined at the end of this Section 6.01(m)) has
incurred or could reasonably be expected to incur any material
liability with respect to a Pension Plan under Section 4062, 4063,
4064 or 4069 of ERISA;
(ii) there have been no "reportable events" (as such term is
defined in Section 4043(b) of ERISA) with respect to any Pension Plan
which have resulted or could reasonably be expected to result in any
material liability of the Lessee or any ERISA Affiliate;
(iii) no "accumulated funding deficiency" (as such term is defined
in Section 302 of ERISA or Section 412 of the Code) exists with
respect to any Pension Plan, whether or not waived, nor has any
request for a waiver under Section 412(d) of the Code been, or is
reasonably likely to be, filed with respect to any of the Pension
Plans;
(iv) neither the Lessee nor any ERISA Affiliate has failed to make
any contribution or payment to any Pension Plan which has resulted or
could reasonably be expected to result in the imposition of a Lien
under Section 302(f) of ERISA or Section 412(n) of the Code;
(v) all Pension Plans are in compliance in all material respects
with all applicable provisions of ERISA and the Code;
(vi) neither the Lessee nor any ERISA Affiliate has incurred or is
reasonably likely to incur any material withdrawal liability pursuant
to Section 4201 or 4204 of ERISA or any material liability under
Section 515 of ERISA;
(vii) to the best of the Lessee's knowledge, neither the Lessee
nor any ERISA Affiliate has engaged in a "prohibited transaction"
(within the meaning of Section 4975 of the Code or Section 406 of
ERISA) which could reasonably be expected to subject the Lessee to
the tax or penalties on prohibited transactions imposed by Section
4975 of the Code or Section 502 of ERISA; and
(viii) assuming the truth of the representations contained in
Section 7.09 hereof and compliance with Section 10.06 of the
Indenture, the execution and delivery of this Agreement and the other
Operative Agreements and the consummation of the transactions
contemplated hereby and thereby will not involve any transaction
which is prohibited by Section 406 of ERISA or in connection with
which a tax could be imposed pursuant to Section 4975 of the Code.
No part of the funds to be used by the Lessee in satisfaction of its
obligations under this Agreement or any other of the Operative
Agreements to which the Lessee is a party or to which the Lessee is
bound are the assets of any employee benefit plan subject to Title I
of ERISA, or any individual retirement account or an employee benefit
plan subject to Section 4975 of the Code;
as used in this Section 6.01(m), the term "Pension Plan" means an employee
pension benefit plan as defined in Section 3(2) of ERISA (other than a
multiemployer plan as defined in Section 4001(a)(3) of ERISA) which is
covered by Title IV of ERISA or subject to the minimum funding standards
under Section 412 of the Code and which is maintained, or contributed to,
by the Lessee or any ERISA Affiliate, and the term "ERISA Affiliate" means
any entity which together with the Lessee would be treated as a single
employer under Section 414(b), (c), (m) or (o) of the Code;
(n) the Lessee is a Citizen of the United States;
(o) except for the filings referred to in Sections 4.01(f), 4.02(e)
and 4.02(f) hereof, no governmental approval of any kind is required of the
Owner Participant or for the Owner Participant's execution of or
performance under this Agreement or any agreement contemplated hereby by
reason of any fact or circumstance of the Lessee, the nature of the
Aircraft or the Lessee's proposed operations or use of the Aircraft;
(p) on the Delivery Date, all premiums with respect to the insurance
required to be provided by the Lessee on or prior to the Delivery Date
under Article 13 of the Lease have been paid by the Lessee;
(q) on the Delivery Date, all sales or use taxes relating to the
sale of the Aircraft by AVSA to the Owner Trustee which are then or were
theretofore due shall have been paid;
(r) the Lessee is not in default under any mortgage, deed of trust,
indenture, lease or other instrument or agreement to which the Lessee is a
party or by which it or any of its Properties or assets may be bound, or in
violation of any applicable law, which default or violation would have a
material adverse effect on the financial condition, business or operations
of the Lessee or its ability to perform any of its obligations under the
Lessee Documents;
(s) no Default or Event of Default or Event of Loss or event, which
with the passage of time or if continued unremedied or unaltered would
constitute an Event of Loss, has occurred or exists;
(t) on the Delivery Date, the Aircraft will be in such condition so
as to enable the airworthiness certificate of such Aircraft to be in good
standing under the Transportation Code; the Aircraft will have been duly
certificated by the FAA as to type and airworthiness; there will be in
effect with respect to the Aircraft a current and valid airworthiness
certificate issued by the FAA pursuant to the Transportation Code; and
there is no fact known to the Lessee which materially adversely affects the
value, utility or condition of the Aircraft;
(u) on the Certificate Closing Date and the Delivery Date, the
Lessee shall not be in default in the performance of any term or condition
of the Purchase Agreement, the Purchase Agreement Assignment, the Engine
Warranty Assignment and the GTA and the aggregate amount of loans shall not
exceed the Debt Portion;
(v) neither the Lessee nor any subsidiary of the Lessee is an
"investment company" or a company "controlled by an investment company"
within the meaning of the Investment Company Act of 1940, as amended;
(w) on the Delivery Date, the Aircraft will, upon delivery, be fully
equipped to operate in commercial service and will comply with all
governmental requirements governing such service; and
(x) there are no broker's or underwriter's fees payable on behalf
of the Lessee in connection with the transactions contemplated in the
Operative Agreements other than those of the Underwriters and First
Chicago Leasing Corporation referred to in Article 10 hereof.
Section 6.02. Offering by Lessee. The Lessee represents and
warrants that it has authorized no one to act on its behalf in connection with
the offer or sale of any interest in the Lessor's Estate or the Trust
Agreement other than First Chicago Leasing Corporation. Neither the Lessee
nor, based on representations of First Chicago Leasing Corporation, anyone
acting on its behalf has directly or indirectly offered any interest in the
Lessor's Estate or the Trust Agreement, or similar interests, for sale to, or
solicited any offer to acquire any of the same from, anyone other than the
Owner Participant and no more than 15 other accredited investors (as such term
is defined in Regulation D promulgated under the Securities Act of 1933, as
amended).
Section 6.03. Certain Covenants of Lessee. The Lessee covenants and
agrees with the Owner Participant, the Owner Trustee (in its individual
capacity and as Owner Trustee), the Pass Through Trustee (in its individual
capacity and as Pass Through Trustee) and the Indenture Trustee (in its
individual capacity and as Indenture Trustee) as follows:
(a) The Lessee will cause to be done, executed, acknowledged and
delivered at the Lessee's cost and expense all such further acts,
conveyances and assurances as the Owner Trustee, the Indenture Trustee, the
Pass Through Trustee or the Owner Participant shall reasonably require for
accomplishing the purposes of this Agreement, the Trust Agreement, the
Purchase Agreement, the Purchase Agreement Assignment, the GTA, the Engine
Warranty Assignment, the Indenture, the Indenture and Security Agreement
Supplement, the Tax Indemnity Agreement, the Lease and the Lease Supplement
and the other Operative Agreements to which it is a party. Without
limiting the generality of this Section 6.03(a), the Lessee will promptly
take, or cause to be taken, at the Lessee's cost and expense, such action
with respect to the recording, filing, re-recording and re-filing of the
Indenture, each Indenture and Security Agreement Supplement, the Lease,
each Lease Supplement and any financing statements or other instruments as
may be necessary, or as requested by the Indenture Trustee and appropriate,
to maintain the perfection of the first security interest and the Lien
created by the Indenture, and the Owner Trustee's title to and interest in
the Aircraft and the Lessor's Estate as against the Lessee and any third
parties or if the Lessee cannot take, or cause to be taken, such action,
will furnish to the Indenture Trustee and the Owner Trustee timely notice
of the necessity of such action, together with such instruments, in
execution form, and such other information as may be required to enable
either of them to take such action at the Lessee's cost and expense in a
timely manner.
(b) From and after the Delivery Date, the Lessee shall maintain the
certificates referred to in Section 7.01 of the Lease and shall cause the
Aircraft to be duly registered, and at all times to remain duly registered,
in the name of the Owner Trustee, under the Transportation Code, and shall
furnish to the Owner Trustee such information as may be required to enable
the Owner Trustee to make application for such registration; provided,
however, that the Owner Participant, the Owner Trustee and the Indenture
Trustee agree that if at any time after December 31, 2004, so long as no
Event of Default shall have occurred and be continuing, the Lessee has
requested their consent to the registration of the Aircraft in the name of
the Owner Trustee (or, if appropriate under the laws of such
jurisdiction of reregistration, in the name of the Lessee or a sublessee
as a "lessee" or a "sublessee"), at the Lessee's expense, in a country
listed in Schedule III hereto with which the United States then
maintains normal diplomatic relations (and which is not then
experiencing war or substantial civil unrest), the Owner Participant,
the Owner Trustee and the Indenture Trustee upon receipt by the Owner
Participant, the Owner Trustee and the Indenture Trustee of the
assurances and opinion described below, shall not unreasonably withhold
their consent to such change in registration (it being agreed, without
limitation, that the inability of the Lessee to deliver such assurances
or such opinion shall constitute reasonable grounds to withhold such
consent).
As a condition to any change in the registration of the Aircraft, the
Owner Participant, the Owner Trustee in its individual and trust capacities,
and the Indenture Trustee shall have received:
(i) assurances satisfactory to them:
(A) to the effect that the insurance provisions of the Lease have
been and will be complied with and are and shall be in full force and
effect upon such change of registry;
(B) as to the continuation of the Lien of the Indenture as a
first priority, duly perfected Lien on the Aircraft;
(C) that the Owner Trustee's right, title and interest in and to
the Aircraft is recognized and fully enforceable in the new
jurisdiction of registry, that the rights of the Owner Trustee in and
to the Aircraft will not be impaired in such new jurisdiction of
registry and that the new jurisdiction of registry will give effect
to the title and registry of the Aircraft therein substantially to
the same extent as does the Government;
(D) that such new country of registry (x) would provide
substantially equivalent protection for the rights of owner
participants, lessors or lenders in similar transactions as provided
under United States law (except that, in the absence of restrictions
under the laws of such country on rights and remedies of lessors and
secured parties similar to those imposed by Sections 362 and 363 of
the Bankruptcy Code, rights and remedies similar to those available
under Section 1110 of the Bankruptcy Code shall not be required) and
(y)(i) if such change in registration is made other than in
connection with a sublease permitted under Section 7.02(a)(i) of the
Lease, imposes maintenance standards at least comparable to those of
the FAA, and (ii) if such change in registration is made in
connection with a sublease permitted under Section 7.02(a)(i) of the
Lease, imposes maintenance standards in conformity with those set
forth in Section 7.02(a)(i) of the Lease;
(E) that import and export certificates and any exchange permits
necessary to allow all Rent and other payments provided for under the
Lease, if required, shall have been procured at the Lessee's own cost
and expense by the Lessee;
(F) that the Lessee shall have effected or caused to be effected
at the Lessee's own cost and expense all recordings and filings that
are required to perfect the Lien of the Indenture;
(G) to the effect that the original indemnities (and any
additional indemnities for which the Lessee is then willing to
enter into a binding agreement to indemnify) in favor of the Owner
Participant, the Owner Trustee (in its individual capacity and as
trustee under the Trust Agreement), the Indenture Trustee (in its
individual capacity, and as trustee under the Indenture), the Pass
Through Trustee (in its individual capacity, and as trustee under
the Pass Through Agreement) and the other Indemnitees under this
Agreement, the Indenture, the Pass Through Agreement and (in the
case of the Owner Participant only) the Tax Indemnity Agreement,
afford each such party substantially the same protection as
provided prior to such change of registry;
(H) that such change will not result in the imposition of, or
increase in the amount of, any Tax (which, for this purpose, includes
the loss of any tax benefits assumed by the Owner Participant to be
available to it based upon the assumptions set forth in Section 2 of
the Tax Indemnity Agreement) for which the Lessee has not agreed to
indemnify the Owner Participant to its reasonable satisfaction, the
Indenture Trustee, the Pass Through Trustee, the Owner Trustee (or
any successor, assign or Affiliate thereof) and the Trust Estate;
(I) that any value added tax, customs duty, tariff or similar
governmental charge relating to the change in jurisdiction of
registration of the Aircraft shall have been paid in full or
adequately provided for by the Lessee to the satisfaction of the
Owner Trustee, the Indenture Trustee and the Owner Participant;
(J) of the payment by the Lessee of any reasonable fees and
expenses of the Owner Participant, the Owner Trustee, the Indenture
Trustee and the Pass Through Trustee in connection with such change
of registry, including any reasonable attorneys' fees and expenses;
(K) that duties and tariffs, if applicable, shall have been paid
for by the Lessee;
(L) as to the continuation of the Lien of the Indenture as a
first priority, duly perfected Lien on the Aircraft and the Trust
Indenture Estate, that all recordings and filings required to so
perfect the Lien of the Indenture have been duly effected, and that
no Liens (except Liens permitted under Section 6.01 of the Lease)
shall arise by reason of such registration; and
(M) that appropriate deregistration powers of attorney in favor of
the Owner Trustee and the Indenture Trustee have been executed and
delivered by the Lessee and any sublessee and, if necessary or
desirable for the effectiveness thereof, filed with the relevant
aeronautics authority; and
(ii) a favorable opinion of counsel (reasonably satisfactory to the
Owner Trustee, the Indenture Trustee and the Owner Participant) in the new
jurisdiction of registry, addressed and reasonably satisfactory to such
parties in scope, form and substance, to the effect:
(A) that the terms (including, without limitation, the governing
law, service-of-process and jurisdictional-submission provisions
thereof) of the Lease and the Indenture are legal, valid, binding and
enforceable in such jurisdiction against the Lessee, any sublessee,
the Owner Trustee and the Indenture Trustee, respectively;
(B) that it is not necessary for the Owner Participant, the Owner
Trustee, the Indenture Trustee or the Pass Through Trustee to
register or qualify to do business or meet other requirements not
already met in such jurisdiction in connection with the registration
in the new jurisdiction (and the filing and/or recordation therein of
the Indenture or the Lease) and the exercise of any rights or
remedies with respect to the Aircraft pursuant to the Lease or the
Indenture or in order to maintain such registration and the Lien of
the Indenture;
(C) that the courts of such jurisdiction would provide
substantially equivalent protection to the Lessor, the Owner
Participant, the Pass Through Trustee and the Indenture Trustee as
provided under United States law (with the exception described in
paragraph (b)(i)(D)(x) of this Section 6.03) in respect of the
transactions contemplated hereby, including, without limitation, the
remedies provided in the Indenture and the Lease;
(D) that there is no tort liability of the beneficial owner,
record owner, lessor or mortgagee of an aircraft not in possession
thereof under the laws of such jurisdiction, other than tort
liability which might reasonably have been imposed on such owner,
lessor or mortgagee under the laws of the United States or any state
thereof (it being understood that, in the event such latter opinion
cannot be given in a form satisfactory to the Owner Trustee, the
Owner Participant and the Indenture Trustee, such opinion shall be
waived, if insurance reasonably satisfactory to the Owner
Participant, the Indenture Trustee and the Owner Trustee, in its
individual capacity, is provided, at the Lessee's expense, to cover
such risk and the Lessee undertakes to keep such insurance in full
force and effect);
(E) that the laws of such jurisdiction will not impair the rights
of the Lessor in and to the Aircraft or under the Lease and (unless
the Lessee shall have agreed to provide insurance reasonably
satisfactory to the Indenture Trustee and the Owner Participant
covering the risk of requisition of use of the Aircraft by the
government of registry of the Aircraft) require fair compensation by
the government of such jurisdiction payable in currency freely
convertible into United States dollars for the loss of use of the
Aircraft in the event of such requisition;
(F) that the Owner Trustee's title to the Aircraft is recognized
and fully enforceable in such jurisdiction, that such jurisdiction
will give effect to the title of the Aircraft therein substantially
to the same extent as does the Government, and that the Lien of the
Indenture shall continue as a first priority, duly perfected lien on
the Aircraft;
(G) to such further effect with respect to such other matters as
the Owner Participant, the Owner Trustee, or the Indenture Trustee may
reasonably request; and
(H) the Lien of the Indenture continues to constitute a first
priority, duly perfected Lien on the Aircraft.
(c) The Lessee shall promptly file any reports, or furnish to the
Owner Trustee and the Owner Participant such information as may be required
to enable the Owner Trustee and the Owner Participant timely to file any
reports required to be filed by the Owner Trustee as the Lessor and the
Owner Participant under the Lease with any governmental authority.
(d) The Lessee will cause the Special Aviation Counsel to file, and
where appropriate record, on the Delivery Date, AVSA's FAA Bill of Sale,
the Lease, the Lease Supplement, the Trust Agreement, the Indenture and the
Indenture and Security Agreement Supplement. The following documents shall
be filed and, where appropriate, recorded on the Delivery Date with the
Aeronautics Authority in the following order of priority: first, AVSA's
FAA Bill of Sale, second, the Application, with the Trust Agreement and the
Affidavits, third, the Indenture with the Indenture and Security Agreement
Supplement attached thereto, and fourth, the Lease with the Lease
Supplement, the Indenture and the Indenture and Security Agreement
Supplement attached thereto.
(e) The Lessee will furnish to the Owner Participant, the Owner
Trustee and the Indenture Trustee annually after the execution of this
Agreement, by March 15 of each year, commencing with the year 1998, an
opinion, reasonably satisfactory to the Owner Participant and the Indenture
Trustee, of Special Aviation Counsel, or other counsel specified from time
to time by the Lessee acceptable to the Lessor and the Indenture Trustee:
(i) stating either (1) that in the opinion of such counsel such action has
been taken with respect to the recording, filing, re-recording and
re-filing of the Lease, the Indenture, the Trust Agreement, and any
supplements to any of them and any financing statements, continuation
statements or other instruments, and all other action has been taken, as is
necessary to maintain the Owner Trustee's title to and interest in the
Aircraft and the Lessor's Estate as against the Lessee and any third
parties and to maintain the perfection of the security interests created by
said documents and reciting the details of such action, or (2) that in the
opinion of such counsel no such action is necessary to maintain such title
or the perfection of such security interests; (ii) specifying all other
action which needs to be taken during the succeeding 14 months in order to
maintain such title and the perfection of such security interests (which
the Lessee agrees timely to take); and (iii) stating that the Owner Trustee
is the owner of legal title to the Aircraft, and the Aircraft is free and
clear of all Liens, except the security interest created by the Indenture
and such as are permitted by the Lease and the Indenture.
(f) The Lessee shall at all times maintain its corporate existence
except as permitted by Section 6.03(g) hereof and all of its rights,
privileges and franchises necessary in the normal conduct of its business,
except for any corporate right, privilege or franchise (i) that it
determines, in its reasonable, good faith business judgment, is no longer
necessary or desirable in the conduct of its business and (ii) the loss of
which will not materially adversely affect or diminish the rights of the
Holders or the Owner Participant.
(g) The Lessee shall not enter into any merger or consolidation, or
convey, transfer or lease all or substantially all of its assets as an
entirety to any Person, unless the surviving corporation or Person which
acquires by conveyance, transfer or lease all or substantially all of the
assets of the Lessee as an entirety (i) is a domestic corporation organized
and existing under the laws of the United States or a political subdivision
thereof, (ii) is a Citizen of the United States, (iii) is a U.S. Air
Carrier, (iv) expressly assumes by an instrument in writing in form and
substance satisfactory to the Owner Participant, the Indenture Trustee and
the Owner Trustee all of the Lessee's obligations hereunder and under the
other Operative Agreements, and each other document contemplated hereby or
thereby and the Lessee delivers such instrument to the Indenture Trustee,
the Owner Participant and the Owner Trustee, (v) provides an opinion from
outside counsel to the Lessee which counsel shall be reasonably
satisfactory to the Owner Participant and the Indenture Trustee and which
opinion shall be reasonably satisfactory to the Owner Participant and the
Indenture Trustee, and an officer's certificate, each stating that such
merger, consolidation, conveyance, transfer or lease and the instrument
noted in clause (iv) above comply with this Section 6.03(g), that such
instrument is a legal, valid and binding obligation of, and is enforceable
against, such survivor or Person, and that all conditions precedent herein
provided for relating to such transaction have been complied with, and (vi)
immediately after such merger, consolidation or conveyance, transfer or
lease, as the case may be, the surviving company (or Person which acquires
by conveyance, transfer or lease the assets of the Lessee) is in compliance
with all of the terms and conditions of this Agreement and the Lease and
each other Operative Agreement and each other document contemplated hereby
or thereby; provided that no such merger, consolidation or conveyance,
transfer or lease shall be permitted if the same gives rise to an Event of
Default.
Upon any consolidation or merger, or any conveyance, transfer or
lease of all or substantially all of the assets of the Lessee and the
satisfaction of the conditions specified in this Section 6.03(g), the
successor corporation formed by such consolidation or into which the Lessee
is merged or the Person 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 Lessee under this Agreement and the Lease and each other
Operative Agreement and any other document contemplated hereby and thereby
to which the Lessee is a party with the same effect as if such successor
corporation had been named as the Lessee herein and therein. No such
conveyance, transfer or lease of all or substantially all of the assets of
the Lessee as an entirety shall have the effect of releasing the Lessee or
any successor corporation which shall theretofore have become the Lessee
hereunder in the manner prescribed in this Section 6.03(g) from its
liability hereunder or under the other Operative Agreements. Nothing
contained herein shall permit any lease, sublease, or other arrangement for
the use, operation or possession of the Aircraft except in compliance with
the applicable provisions of the Lease.
(h) The Lessee agrees to give prompt written notice to the Owner
Participant, the Owner Trustee and the Indenture Trustee of any change in
the address of its chief executive office (as such term is used in Section
9-103(3) of the Tennessee Uniform Commercial Code) or of any change in its
corporate name.
(i) The Lessee agrees to furnish to the Owner Participant, the
Lessor and the Indenture Trustee:
(A) as soon as available, but in any event within one hundred
twenty (120) days after the end of each fiscal year of the Lessee, a
consolidated balance sheet as of the end of such fiscal year, and the
related consolidated statements of income, common stockholders'
equity, retained earnings and cash flows of the Lessee for the fiscal
year then ended as prepared and certified by the Lessee's independent
certified public accountants, including their opinion;
(B) within sixty (60) days after the end of the first, second and
third quarterly accounting periods in each fiscal year of the Lessee,
a consolidated balance sheet of the Lessee prepared by it as of the
close of the accounting period then ended, together with the related
consolidated statements of income, retained earnings and cash flows
for such accounting period certified by the chief accounting officer
or a financial vice president of the Lessee;
(C) promptly upon their general transmission, copies of all
reports and statements furnished by the Lessee to its stockholders;
(D) promptly after filing with the SEC, copies of the Lessee's
Annual Reports on Form 10-K (including all corresponding annual
reports to shareholders), Quarterly Reports on Form 10-Q and, if
requested, any registration statement or prospectus filed by the
Lessee with any securities exchange or with the SEC;
(E) promptly upon (and in any event within five (5) Business Days
after) any officer of the Lessee obtaining knowledge of any condition
or event which constitutes a Default or an Event of Default, an
officer's certificate specifying the nature and period of existence
thereof and what action the Lessee has taken or is taking or proposes
to take with respect thereto;
(F) from time to time, such other financial information as the
Lessor, the Owner Participant or the Indenture Trustee may
reasonably request.
Concurrently with the delivery of the financial statements referred
to in clause (A) above, the Lessee shall deliver to the Lessor, the Owner
Participant, the Indenture Trustee and the Pass Through Trustee a certificate
of the Lessee, signed by any one of the President, the Chief Financial
Officer, the General Counsel, the Treasurer or the principal accounting
officer of the Lessee, stating that the signer, or an employee reporting to
same, is familiar with the relevant terms of this Agreement and the Lease and
the signer has reviewed, or has caused to be made under such Person's
supervision a review, of the activities of the Lessee and that, to the best of
his or her knowledge, there does not exist any Default or any Event of Default
or if a Default or an Event of Default exists or did exist, specifying the
nature thereof, the period of existence thereof and what action the Lessee has
taken or proposes to take with respect thereto.
Section 6.04. Survival of Representations and Warranties. The
representations and warranties of the Lessee provided in Sections 6.01 and
6.02 hereof and in any other Operative Agreement shall survive the Closings
hereunder and the delivery of the Aircraft and the expiration or other
termination of this Agreement and the other Operative Agreements.
ARTICLE 7
OTHER PARTIES' REPRESENTATIONS, WARRANTIES AND COVENANTS
Section 7.01. Acquisitions and Offerings of Interests in Lessor's
Estate. (a) [Reserved]
(b) Owner Participant. The Owner Participant represents and
warrants that its interest in the Lessor's Estate and the Trust Agreement is
being acquired by it for its own account and not with a view to resale or
distribution thereof; provided, however, that the disposition by the Owner
Participant of its interest in the Lessor's Estate and the Trust Agreement
shall, subject to the terms and provisions of Section 7.03(d) hereof (except
as provided in clause (ii) of Section 3.05(a) hereof), at all times be within
its control and the foregoing representation shall not limit the Owner
Participant's right to transfer or sell such interests pursuant to the terms
of this Agreement. Neither the Owner Participant nor anyone authorized to act
on its behalf has directly or indirectly offered any interest in the Lessor's
Estate or the Trust Agreement, or in any similar security, for sale to, or
solicited any offer to acquire any of the same from, anyone. The Owner
Participant further represents and warrants that neither it nor anyone
authorized to act on its behalf has made or will make any offer, solicitation
or sale of any interest in the Lessor's Estate or the Trust Agreement in
violation of the provisions of Section 5 of the Securities Act of 1933, as
amended. No representation in this Section 7.01(b) shall include any action
or inaction of the Lessee, First Chicago Leasing Corporation, the
Subordination Agent, the Underwriters or any Affiliates of any thereof whether
or not such action or inaction is purportedly on behalf of the Owner Trustee,
the Owner Participant or any of their Affiliates.
Section 7.02. Citizenship. (a) Generally. Each of the Owner
Trustee, in its individual capacity and as Trustee, and the Owner Participant
severally represents and warrants that it is or will be a Citizen of the
United States on the Delivery Date. If the Owner Participant or the Owner
Trustee in its individual capacity does not comply with the requirements of
this Section 7.02, the Owner Trustee, the Indenture Trustee and the Owner
Participant hereby agree that a Default or an Event of Default shall not be
deemed to have occurred and be continuing under the Lease due to
non-compliance by the Lessee with the registration requirements in the Lease
occasioned by the noncompliance of the Owner Participant or the Owner Trustee.
(b) Owner Trustee. The Owner Trustee, in its individual capacity,
covenants that if at any time on or after the Delivery Date it shall have
actual knowledge that it has ceased to be a Citizen of the United States, it
will resign immediately as the Owner Trustee if such citizenship is necessary
under the Transportation Code as in effect at such time or, if it is not
necessary under the Transportation Code as in effect at such time, if it is
informed in writing by the Lessee, the Indenture Trustee or the Owner
Participant that such lack of United States citizenship would have any adverse
effect on the Lessee, the Indenture Trustee, the Holders or the Owner
Participant. The Owner Trustee, in its individual capacity, further covenants
that if at any time it appears reasonably probable that it will cease to be a
Citizen of the United States based on information that is (i) known to a
Responsible Officer or (ii) generally known to the public, it will promptly so
notify, to the extent permitted by law, all parties to this Agreement.
(c) Owner Participant. The Owner Participant agrees, solely for the
benefit of the Lessee, the Pass Through Trustee, the Indenture Trustee and the
Owner Trustee, that if at any time on or after the Delivery Date when the
Aircraft is registered or the Lessee proposes to register the Aircraft in the
United States (i) either it shall cease to be, or an event which has been
publicly disclosed has occurred of which the Owner Participant has knowledge
and which will cause the Owner Participant to cease to be, a Citizen of the
United States and (ii) the Aircraft shall or would therefore become ineligible
for registration in the name of the Owner Trustee under the Transportation
Code and regulations then applicable thereunder, then the Owner Participant
shall give notice thereof to the Lessee, the Owner Trustee and the Indenture
Trustee and shall (at its own expense and without any reimbursement or
indemnification from the Lessee) immediately (and in any event within a period
of 20 days) (x) effect a voting trust or other similar arrangement, (y)
transfer in accordance with the terms of this Agreement and the Trust
Agreement all its rights, title and interest in and to such Trust Agreement,
the Lessor's Estate and this Agreement, or (z) take any other alternative
action that would prevent any deregistration, or maintain or permit the United
States registration, of the Aircraft. It is agreed that the Owner Participant
shall be liable to pay promptly on request (A) to each of the other parties
hereto any actual damages (but not consequential damages) suffered by any such
other party to the extent the same shall result from the representation and
warranty of the Owner Participant in the first sentence of Section 7.02(a)
hereof proving to be untrue as of the Delivery Date; and (B) to the Lessee,
the Indenture Trustee or the Pass Through Trustee for any damages actually
(but not consequentially) incurred by the Lessee, the Indenture Trustee and
the Pass Through Trustee as a result of the Owner Participant's failure to
comply with its obligations pursuant to the first sentence of this Section
7.02(c); provided, that, the foregoing shall not restrict the Pass Through
Trustee or the Indenture Trustee from asserting against the Owner Participant
any damages actually incurred by the holders of any Pass Through Certificates.
Each party hereto agrees, upon the request and at the sole expense of the
Owner Participant, to cooperate with the Owner Participant in complying with
its obligations under the provisions of the first sentence of this Section
7.02(c), but without any obligation on the part of such other party to take
any action believed by it in good faith to be unreasonably burdensome to such
party or materially adverse to its business interests.
Section 7.03. Representations, Warranties and Covenants of Owner
Participant. (a) Representations, Warranties and Covenants. In addition to
and without limiting its other representations and warranties provided for in
this Article 7, the Owner Participant represents and warrants on the date
hereof and as of the Certificate Closing Date and the Delivery Date that:
(i) it is a corporation duly incorporated and validly existing in
good standing under the laws of the State of Delaware and it has full
corporate power, authority and legal right to carry on its present business
and operations, to own or lease its Properties and to enter into and to
carry out the transactions contemplated by this Agreement, the Tax
Indemnity Agreement, the Trust Agreement and the other Operative Agreements
to which it is party;
(ii) the execution, delivery and performance by it of this
Agreement, the Tax Indemnity Agreement, and the Trust Agreement and the
other Operative Agreements to which it is party have been duly authorized
by all necessary corporate action on its part and, assuming the accuracy of
the Lessee's representations in Section 6.01(o) hereof, do not require any
governmental approvals that would be required to be obtained by the Owner
Participant;
(iii) based on the representations, warranties and covenants
contained in Sections 6.01(m)(viii), 6.02 and 7.09 hereof and compliance
with Section 10.06 of the Indenture, neither the execution, delivery or
performance by the Owner Participant of this Agreement, the Tax Indemnity
Agreement, and the Trust Agreement and the other Operative Agreements to
which it is party nor compliance with the terms and provisions hereof or
thereof, conflicts or will conflict with or results or will result in a
breach or violation of any of the terms, conditions or provisions of, or
will require any consent or approval under any law, governmental rule or
regulation applicable to the Owner Participant or the charter documents,
as amended, or bylaws, as amended, of the Owner Participant or any
order, writ, injunction or decree of any court or governmental authority
against the Owner Participant or by which it or any of its Properties is
bound or any indenture, mortgage or contract or other agreement or
instrument to which the Owner Participant is a party or by which it or
any of its Properties is bound, or constitutes or will constitute a
default thereunder or results or will result in the imposition of any
Lien upon any of its Properties;
(iv) this Agreement, the Tax Indemnity Agreement and the Trust
Agreement and the other Operative Agreements to which it is party have been
or on the Certificate Closing Date will be duly executed and delivered by
the Owner Participant and constitute or on the Certificate Closing Date
will constitute the legal, valid and binding obligation of the Owner
Participant enforceable against it in accordance with their terms except as
such enforceability may be limited by bankruptcy, insolvency, moratorium,
reorganization or other similar laws or equitable principles of general
application to or affecting the enforcement of creditors' rights
(regardless of whether enforceability is considered in a proceeding in
equity or at law);
(v) it is not in default under any mortgage, deed of trust,
indenture, lease or other instrument or agreement to which the Owner
Participant is a party or by which it or any of its Properties may be
bound, or in violation of any applicable law, which default or violation
would have a material adverse effect on the financial condition, business
or operations of the Owner Participant or an adverse effect on the ability
of the Owner Participant to perform its obligations under this Agreement
and the other Operative Agreements to which it is or is to be a party;
(vi) there are no pending or, to the knowledge of the Owner
Participant, threatened actions, suits, investigations or proceedings
against the Owner Participant before any court, administrative agency or
tribunal which are expected to materially adversely affect the ability of
the Owner Participant to perform its obligations under this Agreement and
the other Operative Agreements to which it is or is to be a party and the
Owner Participant knows of no pending or threatened actions or proceedings
before any court, administrative agency or tribunal involving it in
connection with the transactions contemplated by the Operative Agreements;
(vii) neither the execution and delivery by it of this Agreement or
the other Operative Agreements to which it is a party nor the performance
of its obligations hereunder or thereunder requires the consent or approval
of or the giving of notice to, the registration with, or the taking of any
other action in respect of, any governmental authority or agency that would
be required to be obtained or taken by the Owner Participant except for
filings contemplated by this Agreement;
(viii) no part of the funds to be used by it to acquire the interests
to be acquired by the Owner Participant under this Agreement constitutes
assets (within the meaning of ERISA and any applicable rules and
regulations) of any employee benefit plan subject to Title I of ERISA or of
any plan or individual retirement account subject to Section 4975 of the
Code; and
(ix) it is a "U.S. Person" as defined in Section 7701(a)(30) of the
Code and is not a tax resident of another country.
Notwithstanding the foregoing or anything else contained in this
Agreement, the Owner Participant makes no representation or warranty in this
Agreement with respect to laws, rules or regulations relating to aviation or
to the nature or use of the equipment owned by the Owner Trustee, including,
without limitation, the airworthiness, value, condition, workmanship, design,
patent or trademark infringement, operation, merchantability or fitness for
use of the Aircraft, other than such laws, rules or regulations relating to
the citizenship requirements of the Owner Participant under applicable
aviation law.
(b) Lessor's Liens. The Owner Participant further represents,
warrants and covenants that there are no Lessor's Liens attributable to it (or
an Affiliate thereof) and that there will not be any Lessor's Lien
attributable to it (or an Affiliate thereof) on the Certificate Closing Date.
The Owner Participant agrees with and for the benefit of the Lessee, the Owner
Trustee, the Indenture Trustee and the Pass Through Trustee that the Owner
Participant will, at its own cost and expense, take such action as may be
necessary (by bonding or otherwise, so long as neither the Lessee's operation
and use of the Aircraft nor the validity and priority of the Lien of the
Indenture is impaired) to duly discharge and satisfy in full, promptly after
the same first becomes known to the Owner Participant, any Lessor's Lien
attributable to the Owner Participant (or an Affiliate thereof), provided,
however, that the Owner Participant shall not be required to discharge or
satisfy such Lessor's Lien which is being contested by the Owner Participant
in good faith and by appropriate proceedings so long as such proceedings do
not involve any material danger of the sale, forfeiture or loss of the
Aircraft or the Lessor's Estate or the Trust Indenture Estate or any interest
in any thereof or otherwise materially adversely affect the validity or
priority of the Lien of the Indenture.
(c) Reimbursement. Without limiting any other rights the parties
hereto may have as a result of any breach by the Owner Participant of its
obligations in Section 7.03(b) hereof, the Owner Participant agrees to
reimburse each other party hereto for all reasonable legal fees and expenses
of counsel that may be incurred by any such party as a result of the failure
of the Owner Participant to discharge and satisfy any such Lessor's Lien in
accordance with the terms of Section 7.03(b) hereof.
(d) Assignment of Interests of Owner Participant. At any time after
the Delivery Date (or upon the direction of the Lessee if Section 3.05(a)(i)
hereof shall be applicable), and subject to the conditions set forth in this
Section 7.03(d), the Owner Participant may assign, convey or otherwise
transfer to a single institutional investor or an Affiliate of an
institutional investor all (but not less than all) of the Beneficial Interest,
provided that it gives the Lessee and the Indenture Trustee at least 10
Business Days' notice of such assignment, conveyance or other transfer and
provided further that the Owner Participant and any Owner Participant
Guarantor shall remain liable for all obligations of the Owner Participant
under the Trust Agreement and the Operative Agreements to which the Owner
Participant is a party to the extent (but only to the extent) relating to the
period on or before the date of such transfer and provided that the transferee
agrees by a written instrument substantially in the form attached hereto as
Exhibit G-1 to assume primary liability for all obligations as an Owner
Participant under the Trust Agreement and the other Operative Agreements to
which such Owner Participant is a party relating to the period after the date
of transfer. Any such transferee shall (a) be (i) a bank, savings
institution, finance company, leasing company or trust company, national
banking association acting for its own account or in a fiduciary capacity as
trustee or agent under any pension, retirement, profit sharing or similar
trust or fund, insurance company, fraternal benefit society or corporation
acting for its own account having a combined capital and surplus (or, if
applicable, consolidated tangible net worth or its equivalent) of not less
than $75,000,000, (ii) a subsidiary of any Person described in clause (i)
where such Person provides (A) support for the obligations assumed by such
transferee subsidiary reasonably satisfactory to the Lessee, the Owner Trustee
and the Indenture Trustee or (B) an unconditional guaranty substantially in
the form of Exhibit G-2 attached hereto of such transferee subsidiary's
obligations, or (iii) an Affiliate of the transferring Owner Participant, so
long as such Affiliate has a combined capital and surplus (or, if applicable,
consolidated tangible net worth or its equivalent) of not less than
$75,000,000, (b) be legally capable of binding itself to the obligations of
the Owner Participant and shall expressly agree to assume all obligations of
the Owner Participant under the Trust Agreement and this Agreement and (c)
provide representations substantially similar to those contained in Sections
7.02(a) and 7.03(a) hereof. In the event of any such assignment, conveyance
or transfer, the transferee shall become a party to the Trust Agreement and
shall agree to be bound by all the terms of and will undertake all of the
obligations of the Owner Participant contained in the Trust Agreement and the
other Operative Agreements in the manner set forth in the form attached as
Exhibit G-1. A transferee hereunder shall be (i) a "U.S. Person" as defined
in Section 7701(a)(30) of the Code (or any successor provision thereto) and
such transferee shall be personally liable for any debt service to the extent
that its receipt of rentals is reduced by reason of any withholding Taxes that
result from such transferee's failure to be such a "U.S. Person" and (ii) a
Citizen of the United States or has established a voting trust, voting powers
or other arrangement reasonably satisfactory to the Indenture Trustee and the
Lessee to permit the Owner Trustee to be the registered owner of the Aircraft
under the Transportation Code. A transferee hereunder shall not be, and in
acquiring the Beneficial Interest shall not use the assets of, an employee
benefit plan subject to Title I of ERISA or an individual retirement account
or a plan subject to Section 4975 of the Code. Assuming the truth of the
representations made in Sections 6.01(m) and 7.06 hereof and compliance with
Section 10.06 of the Indenture, no such assignment, conveyance or transfer
shall violate any provision of law or regulation or create a relationship
which would be in violation thereof. The Owner Trustee shall not be on notice
of or otherwise bound by any such assignment, conveyance or transfer unless
and until it shall have received an executed counterpart of the instrument of
such assignment, conveyance or transfer. Upon any such disposition by the
Owner Participant to a transferee as above provided, the transferee shall be
deemed the "Owner Participant" or "Trustor" for all purposes of the Operative
Agreements, and shall be deemed to have made all the payments previously made
by its transferor and to have acquired the same interest in the Lessor's
Estate as theretofore held by its transferor; and each reference therein to
the "Owner Participant" or "Trustor" shall thereafter be deemed a reference
to such transferee. Notwithstanding anything to the contrary contained in
this Section 7.03(d), in no event shall the Owner Participant transfer its
interest in the Beneficial Interest to any entity whose business is that of
a nationwide or worldwide overnight or expedited delivery small package air
courier, cargo or freight deliverer or which competes with the Lessee in
such lines of business. The Lessee agrees that it will reasonably
cooperate with the Owner Participant in effecting an assignment of the
Owner Participant's interests including, without limitation, providing
letters to any successor Owner Participant permitting such successor Owner
Participant to rely on any opinions provided by the Lessee on the Delivery
Date.
(e) Actions with Respect to Lessor's Estate, Etc. The Owner
Participant agrees that it will not take any action to subject the Lessor's
Estate or the trust established by the Trust Agreement, as debtor, to the
reorganization or liquidation provisions of the Bankruptcy Code or any other
applicable bankruptcy or insolvency statute.
Section 7.04. Representations, Covenants and Warranties of SSB and
the Owner Trustee. (a) In addition to and without limiting its other
representations and warranties provided for in this Article 7, SSB represents
and warrants, in its individual capacity with respect to items (i), (ii),
(iii)(A), (iv), (v), (vi) and (vii) below, and as the Owner Trustee with
respect to items (iii)(B) and (iv) on the date hereof and as of the
Certificate Closing Date and the Delivery Date that:
(i) it is a national banking association duly organized and validly
existing in good standing under the laws of the United States of America
with its principal place of business and chief executive office (as such
terms are used in Article 9 of the Uniform Commercial Code) at 750 Main
Street, Hartford, Connecticut 06013, Attention: Corporate Trust Department
and has full corporate power and authority, in its individual capacity or
(assuming the Trust Agreement has been duly authorized, executed and
delivered by the Owner Participant) as the Owner Trustee, as the case may
be, to carry on its business as now conducted, and to execute, deliver and
perform this Agreement and the Operative Agreements to which it is or is to
be a party;
(ii) the execution, delivery and performance by SSB, either in its
individual capacity or as the Owner Trustee, as the case may be, of this
Agreement and the Operative Agreements to which it is or is to be party
have been duly authorized by all necessary corporate action on its part,
and do not contravene its articles of association or by-laws; each of this
Agreement and the other Operative Agreements to which it is or is to be a
party has been duly authorized, and has been duly executed and delivered
or, in the case of the Operative Agreements identified in Section 4.02(c)
hereof, will on the Delivery Date be duly executed and delivered by SSB,
either in its individual capacity or as the Owner Trustee, as the case may
be, and neither the execution and delivery thereof nor SSB's performance
of or compliance with any of the terms and provisions thereof will violate
any Federal or Connecticut law or regulation governing SSB's banking or
trust powers;
(iii) (A) assuming due authorization, execution and delivery by each
other party thereto, each of the Operative Agreements to which it is or is
to be party when duly executed and delivered will, to the extent each such
document is entered into by SSB in its individual capacity, constitute the
legal, valid and binding obligation of SSB in its individual capacity
enforceable against it in such capacity in accordance with its respective
terms, except as such enforceability may be limited by bankruptcy,
insolvency, reorganization or other similar laws or equitable principles of
general application to or affecting the enforcement of creditors' rights
(regardless of whether enforceability is considered in a proceeding in
equity or at law), and the performance by SSB in its individual capacity of
any of its obligations thereunder does not contravene any lease, regulation
or contractual restriction binding on SSB in its individual capacity;
(B) assuming due authorization, execution and delivery by each
other party thereto, each of the Operative Agreements to which it is or
is to be party when duly executed and delivered will, to the extent each
such document is entered into by the Owner Trustee in its trust
capacity, constitute the legal, valid and binding obligation of the
Owner Trustee enforceable against it in such capacity in accordance with
its respective terms, except as such enforceability may be limited by
bankruptcy, insolvency, reorganization or other similar laws or
equitable principles of general application to or affecting the
enforcement of creditors' rights (regardless of whether enforceability
is considered in a proceeding in equity or at law), and the performance
by the Owner Trustee of any of its obligations thereunder does not
contravene any lease, regulation or contractual restriction binding on
the Owner Trustee;
(iv) there are no pending or, to its knowledge, threatened actions
or proceedings against SSB before any court or administrative agency
which would materially and adversely affect the ability of SSB, either
in its individual capacity or as the Owner Trustee, as the case may be,
to perform its obligations under the Operative Agreements to which it is
or is to be party;
(v) it shall give the Lessee, the Indenture Trustee and the Owner
Participant at least thirty (30) days' prior written notice in the event of
any change in its chief executive office or name;
(vi) neither the execution and delivery by it, either in its
individual capacity or as the Owner Trustee, as the case may be, of any of
the Operative Agreements to which it is or is to be a party, requires on
the part of SSB in its individual capacity or any of its Affiliates the
consent or approval of or the giving of notice to, the registration with,
or the taking of any other action in respect of, any Federal or Connecticut
governmental authority or agency governing its banking or trust powers; and
(vii) on the Certificate Closing Date, the proceeds arising from the
issuance and sale of the Certificates shall be free of Lessor's Liens
attributable to SSB in its individual capacity and on the Delivery Date the
Owner Trustee shall be holding whatever title to the Aircraft as was
conveyed to it by AVSA, the Aircraft shall be free of Lessor's Liens
attributable to SSB in its individual capacity and SSB in its individual
capacity is a Citizen of the United States.
(b) Lessor's Liens. SSB, in its individual capacity, further
represents, warrants and covenants that there are no Lessor's Liens
attributable to it in its individual capacity and that there will not be any
such Lessor's Liens on the Certificate Closing Date or the Delivery Date. The
Owner Trustee, in its trust capacity, and at the cost and expense of the
Lessee, covenants that it will in its trust capacity promptly, and in any
event within 30 days after the same shall first become known to it, take such
action as may be necessary to discharge duly any Lessor's Liens attributable
to it in its trust capacity. SSB, in its individual capacity, covenants and
agrees that it will at its own expense take such action as may be necessary to
duly discharge and satisfy in full, promptly, and in any event within 30 days
after the same shall first become known to it, any Lessor's Liens attributable
to it in its individual capacity which may arise at any time after the date of
this Agreement.
(c) Indemnity for Lessor's Liens. SSB, in its individual capacity,
agrees to indemnify and hold harmless the Lessee, the Indenture Trustee, the
Owner Participant and the Pass Through Trustee and the Owner Trustee from and
against any loss, cost, expense or damage which may be suffered by the Lessee,
the Indenture Trustee, the Owner Participant, the Pass Through Trustee or the
Owner Trustee as a result of the failure of SSB to discharge and satisfy any
Lessor's Liens attributable to it in its individual capacity, as described in
Section 7.04(b) hereof.
(d) Securities Act. None of SSB, the Owner Trustee or any Person
authorized by either of them to act on its behalf has directly or indirectly
offered or sold or will directly or indirectly offer or sell any interest in
the Lessor's Estate, or in any similar security relating to the Lessor's
Estate, or in any security the offering of which for purposes of the
Securities Act of 1933, as amended, would be deemed to be part of the same
offering as the offering of the aforementioned securities to, or solicited any
offer to acquire any of the same from, any Person.
(e) Actions With Respect to Lessor's Estate, Etc. Neither SSB, in
its individual capacity, nor the Owner Trustee will take any action to subject
the Lessor's Estate or the trust established by the Trust Agreement, as
debtor, to the reorganization or liquidation provisions of the Bankruptcy Code
or any other applicable bankruptcy or insolvency statute.
Section 7.05. Representations, Warranties and Covenants of the
Indenture Trustee. (a) The Indenture Trustee in its individual capacity (other
than as the Pass Through Trustee) represents on the date hereof and as of the
Certificate Closing Date and the Delivery Date as follows:
(i) it is a national banking association duly organized and validly
existing in good standing under the laws of the United States of America
and has the power and authority to enter into and perform its obligations
under the Indenture, this Agreement and the other Operative Agreements to
which it is a party and to authenticate the Certificates to be delivered on
the Certificate Closing Date;
(ii) the Indenture and this Agreement and the other Operative
Agreements to which it is or is to be a party, and the authentication of
the Certificates to be delivered on the Certificate Closing Date, have been
duly authorized by all necessary corporate action on its part, and neither
the execution and delivery thereof nor its performance of any of the terms
and provisions thereof will violate any Federal or Utah law or regulation
relating to its banking or trust powers or contravene or result in any
breach of, or constitute any default under, its articles of association or
by-laws;
(iii) each of the Indenture and this Agreement, and the other
Operative Agreements to which it is or is to be a party, has been duly
executed and delivered or, in the case of the Operative Agreements
identified in Section 4.02(c) hereof, will on the Delivery Date be executed
and delivered by it and, assuming that each such agreement is the legal,
valid and binding obligation of each other party thereto, is (or will be,
as the case may be), the legal, valid and binding obligation of the
Indenture Trustee, enforceable against the Indenture Trustee in accordance
with its terms except as such enforceability may be limited by bankruptcy,
insolvency, reorganization or other similar laws or equitable principles of
general application to or affecting the enforcement of creditors' rights
(regardless of whether enforceability is considered in a proceeding in
equity or at law);
(iv) neither the execution and delivery by it of the Indenture and
this Agreement and the other Operative Agreements to which it is or is to
be a party, nor the performance by it of any of the transactions
contemplated hereby or thereby, requires the consent or approval of, the
giving of notice to, the registration with, or the taking of any other
action in respect of, any Federal or state governmental authority or agency
governing its banking and trust powers; and
(v) on the Certificate Closing Date, the Indenture Trustee holds
the Liquid Collateral on behalf of the Owner Trustee and on the Delivery
Date, the Indenture Trustee will hold the original counterparts of the
Lease and the Lease Supplement.
(b) Indenture Trustee's Liens. The Indenture Trustee, in its
individual capacity, further represents, warrants and covenants that there are
no Indenture Trustee's Liens attributable to it in its individual capacity and
that there will not be any Indenture Trustee's Liens on the Certificate
Closing Date or, as at and following the Delivery Date, the Aircraft. The
Indenture Trustee, in its individual capacity, covenants and agrees that it
will at its own expense take such action as may be necessary to duly discharge
and satisfy in full, promptly, and in any event within 30 days, after the same
shall first become known to it, any Indenture Trustee's Liens.
(c) Indemnity for Indenture Trustee's Liens. The Indenture Trustee,
in its individual capacity, agrees to indemnify and hold harmless the Lessee,
the Owner Participant, the Owner Trustee and the Pass Through Trustee from and
against any loss, cost, expense or damage which may be suffered by the Lessee,
the Indenture Trustee, the Owner Participant, the Owner Trustee or the Pass
Through Trustee as a result of the failure of the Indenture Trustee to
discharge and satisfy any Indenture Trustee's Liens attributable to it in its
individual capacity, as described in Section 7.05(b) hereof.
Section 7.06. Indenture Trustee's Notice of Default. The Indenture
Trustee agrees to give the Owner Participant notice of any Default or Event of
Default promptly upon a Responsible Officer of the Indenture Trustee having
actual knowledge thereof.
Section 7.07. Releases from Indenture. The Indenture Trustee
covenants and agrees, for the benefit of the Lessee and the Owner Participant,
to execute and deliver the instruments of release from the Lien of the
Indenture which it is required to execute and deliver in accordance with the
provisions of Article XIV of the Indenture, and the Owner Participant agrees,
for the benefit of the Lessee, to cause the Owner Trustee to request the
Indenture Trustee to execute and deliver such instruments of release upon
written notice from the Lessee to make such request.
Section 7.08. Covenant of Quiet Enjoyment. Each of the Owner
Participant, the Indenture Trustee, the Pass Through Trustee and the Owner
Trustee covenants and agrees as to itself only that, so long as no Event of
Default under the Lease has occurred and is continuing, neither the Owner
Participant (or the Owner Trustee, the Pass Through Trustee or the Indenture
Trustee, as the case may be) nor any Person lawfully claiming through the
Owner Participant (or the Owner Trustee, the Pass Through Trustee or the
Indenture Trustee, as the case may be) shall interfere with the Lessee's right
quietly to enjoy the Aircraft during the Term without hindrance or disturbance
by the Owner Participant (or the Owner Trustee, the Pass Through Trustee or
the Indenture Trustee, as the case may be).
Section 7.09. Pass Through Trustee's Representations and Warranties.
The Pass Through Trustee, in its individual capacity (except with respect to
clause (iii) below), represents and warrants as of the date hereof (except as
otherwise provided), as of the Pass Through Closing Date, the Certificate
Closing Date and the Delivery Date that:
(i) it is a national banking association duly organized and validly
existing in good standing under the laws of the United States of America
and has the power and authority to enter into and perform its obligations
under the Pass Through Agreement, the Series Supplements, the Intercreditor
Agreement and this Agreement and to execute and authenticate the Pass
Through Certificates to be delivered on the Pass Through Closing Date;
(ii) the execution, delivery and performance of this Agreement,
the Pass Through Agreement and the Series Supplements and the
performance of its obligations hereunder and thereunder (including the
execution and authentication of the Pass Through Certificates to be
delivered on the Pass Through Closing Date) have been fully authorized
by all necessary corporate action on its part, and, subject to (A) the
registration of the issuance and sale of the Pass Through Certificates
under the Securities Act, (B) compliance with any applicable state
securities laws and (C) the qualification of the Pass Through Agreement
under the Trust Indenture Act, neither the execution and delivery
thereof nor its performance of any of the terms and provisions thereof
will violate any Federal or Utah law or regulation relating to its
banking or trust powers or contravene or result in any breach of, or
constitute any default under its articles of association, or bylaws or
the provisions of any indenture, mortgage, contract or other agreement
to which it is a party or by which it or its properties may be bound or
affected; and
(iii) each of this Agreement and the Pass Through Agreement has
been, and as of the Pass Through Closing Date the Series Supplements
will be, duly executed and delivered by it (in its individual and trust
capacities) and, assuming that each such agreement is the legal, valid
and binding obligation of each other party thereto, is or will be, as
the case may be, the legal, valid and binding obligation of the Pass
Through Trustee (in its individual and trust capacities), enforceable in
accordance with its respective terms except as limited by bankruptcy,
insolvency, moratorium, reorganization or other similar laws or
equitable principles of general application to or affecting the
enforcement of creditors' rights generally (regardless of whether such
enforceability is considered in a proceeding in equity or at law).
Section 7.10. Survival of Representations, Warranties and Covenants.
The representations, warranties and covenants of the Owner Participant, the
Owner Trustee (in its individual or trust capacity), the Pass Through Trustee
(in its individual or trust capacity), the Indenture Trustee (in its
individual or trust capacity) and the Subordination Agent (in its individual
or trust capacity) provided for in this Article 7, and their respective
obligations under any and all of them, shall survive the Closings, the
delivery of the Aircraft and the expiration or other termination of this
Agreement, and the other Operative Agreements.
Section 7.11. Lessee's Assumption of the Certificates. (a) Subject
to compliance by the Lessee with all of its obligations under the Operative
Agreements, each of the Owner Participant, the Owner Trustee, the Indenture
Trustee, the Pass Through Trustee and the Lessee covenants and agrees that if
the Lessee elects to terminate the Lease and to purchase the Aircraft pursuant
to Section 4.02(a)(A), (D) or (E) of the Lease, and so long as no Event of
Default shall have occurred and be continuing then, upon compliance with the
applicable provisions of said Section 4.02(a) of the Lease, the Owner Trustee
will transfer to the Lessee, without recourse or warranty (except as to the
absence of Lessor's Liens attributable to the Owner Trustee) but subject to
the Lien of the Indenture, all of the Owner Trustee's right, title and
interest in and to the Aircraft, and if the Lessee, in connection with such
purchase, elects pursuant to Section 4.02(a)(A), (D) or (E) of the Lease to
assume the obligations of the Owner Trustee to the Indenture Trustee and the
Holders under the Indenture, the Certificates and hereunder, then the Lessee
shall so notify the Indenture Trustee (such notice to be given at least 30 and
not more than 60 days prior to the effective date of such assumption), and
each of the parties shall execute and deliver appropriate documentation
permitting the Lessee to assume such obligations on the basis of full recourse
to the Lessee, maintaining for the benefit of the Holders the security
interest in the Aircraft created by the Indenture, and upon compliance with
the provisions of this Section 7.11 releasing the Owner Participant and the
Owner Trustee from all obligations in respect of the Certificates, the
Indenture, this Agreement and the other Operative Agreements, except any
obligations relating to the period prior to such assumption and take all
such other actions, at the Lessee's expense, as are reasonably necessary to
permit such assumption by the Lessee.
(b) In connection with such assumption:
(i) the Lessee shall execute and deliver an instrument satisfactory
in form and substance to the Indenture Trustee (A) pursuant to which the
Lessee irrevocably and unconditionally assumes and undertakes, with full
recourse to the Lessee, to pay, satisfy and discharge when and as due (at
the stated maturity thereof, by acceleration or otherwise) the principal
of, Make-Whole Premium, if any, interest and all other sums owing on all
Outstanding Certificates (or on the Lessee's substituted obligations) in
accordance with their terms and to punctually perform and observe all of
the covenants and obligations hereunder and under the Indenture and the
Certificates (as the same may be amended in connection with such
assumption) to be performed or observed by the Owner Trustee and (B) which
contains amendments to the Indenture, in form and substance satisfactory to
the Holders and the Indenture Trustee, that incorporate therein such
provisions from the Lease and this Agreement as may be appropriate,
including, without limitation, events of default substantially identical in
scope and effect to those set forth in the Lease and covenants
substantially identical to the covenants of the Lessee hereunder and under
the Lease;
(ii) the instrument referred to in paragraph (i) of this Section
7.11(b), any Uniform Commercial Code financing statements relating thereto,
and any other documents which shall be necessary (or reasonably requested
by the Indenture Trustee) to establish the Lessee's title to and interest
in the Aircraft or to reflect the substitution of the Lessee for the Owner
Trustee under the Operative Agreements or to continue the perfection of the
security interests in the Aircraft and the other rights, Property and
interests included in the Trust Indenture Estate for the benefit of the
Holders (or the Lessee's substituted obligations) shall be filed in such
form, manner and places as are necessary or, in the reasonable opinion of
the Indenture Trustee, advisable for such purpose;
(iii) the Indenture Trustee shall have received an insurance report
dated the effective date of such assumption of an independent insurance
broker and certificates of insurance, each in form and substance
satisfactory to the Indenture Trustee, as to the due compliance as of the
effective date of such assumption with the terms of Article 13 of the Lease
(as it relates to the Indenture Trustee) relating to the insurance with
respect to the Aircraft;
(iv) the Indenture Trustee shall have received evidence that as of
the effectiveness of the assignment on the date of such assumption the
Aircraft is free and clear of all Liens other than the Lien of the
Indenture and other Permitted Liens;
(v) the Indenture Trustee shall have received a certificate from
the Lessee that no Event of Default shall have occurred and be continuing
as of the effective date of such assumption; and
(vi) the Indenture Trustee shall have received (A) from counsel for
the Lessee (who may be the Lessee's General Counsel) a legal opinion, in
form and substance satisfactory to the Indenture Trustee (w) with respect
to the compliance of the assumption contemplated hereby with the terms,
provisions and conditions hereof, (x) with respect to the due
authorization, execution, delivery, validity and enforceability of the
instrument referred to in paragraph (i) of this Section 7.11(b), (y)
with respect to the continued perfection of the first and prior Lien and
security interest in the Aircraft for the benefit of the Holders of the
Certificates (or the Lessee's substituted obligations) referred to in
paragraph (ii) of this Section 7.11(b) and (z) with respect to the
continued availability of the benefits of Section 1110 of the Bankruptcy
Code to the Indenture Trustee for the benefit of the Holders with
respect to the Aircraft after giving effect to such assumption, (B) from
counsel to the Indenture Trustee and Special Aviation Counsel, a legal
opinion comparable to the respective opinions delivered on the
Certificate Closing Date or the Delivery Date, as the case may be, with
such changes therein as may be appropriate in light of such assumption,
and (C) in the case of each opinion described in clause (A) or (B)
above, covering such additional matters as the Indenture Trustee shall
reasonably request.
(c) The Lessee shall pay all reasonable expenses (including
reasonable fees and expenses of counsel) of the Indenture Trustee, the Owner
Trustee, the Pass Through Trustee and the Owner Participant in connection with
such assumption.
Section 7.12. Indebtedness of Owner Trustee. So long as the
Indenture is in effect, the Owner Trustee, not in its individual capacity, but
solely as trustee under the Trust Agreement, shall not incur any indebtedness
for borrowed money except as expressly contemplated herein or in any other
Operative Agreement (excluding the Tax Indemnity Agreement) and shall not
engage in any business or other activity other than the transactions
contemplated herein or in any other Operative Agreement (excluding the Tax
Indemnity Agreement) and all necessary or appropriate activity related
thereto.
Section 7.13. Compliance with Trust Agreement, Etc. Each of the
Owner Participant, SSB and the Owner Trustee agrees with the Lessee, the
Indenture Trustee and the Pass Through Trustee that so long as the Lien of the
Indenture shall be in effect it will (i) comply with all of the terms of the
Trust Agreement applicable to it in its respective capacity, the noncompliance
with which would materially adversely affect any such party and (ii) not take
any action, or cause any action to be taken, to amend, modify or supplement
any other provision of the Trust Agreement in a manner that would materially
adversely affect any such party without the prior written consent of such
party. The Owner Trustee confirms for the benefit of the Lessee, the
Indenture Trustee and the Pass Through Trustee that it will comply with the
provisions of Article 2 of the Trust Agreement. Notwithstanding anything else
to the contrary in the Trust Agreement, so long as the Lease remains in
effect, the Owner Participant agrees not to terminate or revoke the trust
created by the Trust Agreement without the consent of the Lessee. If and so
long as the Indenture shall not have been discharged the consent of the
Indenture Trustee shall also be required prior to any termination or
revocation of such trust and in addition, the Owner Participant will, at the
Lessee's expense, promptly and duly execute and deliver to the Indenture
Trustee such documents and assurances including, without limitation,
conveyances, financing statements and continuation statements with respect to
financing statements and take such further action as the Indenture Trustee may
from time to time reasonably request and furnish in order to protect the
rights and remedies created or intended to be created in favor of the
Indenture Trustee under the Indenture and to create for the benefit of the
Certificate Holders a valid first priority Lien with respect to, and a first
and prior perfected security interest in, the Trust Indenture Estate.
Section 7.14. Subordination Agent's Representations, Warranties and
Covenants. (a) Representations and Warranties. The Subordination Agent
represents and warrants as of the date hereof (except as otherwise provided),
as of the Pass Through Closing Date, the Certificate Closing Date and the
Delivery Date that:
(i) it is a national banking association duly organized and validly
existing in good standing under the laws of the United States of America
and has the corporate power and authority to enter into and perform its
obligations under this Agreement, the Liquidity Facilities and the
Intercreditor Agreement;
(ii) the execution, delivery and performance of this Agreement, each
of the Liquidity Facilities and the Intercreditor Agreement and the
performance of its obligations hereunder and thereunder have been fully
authorized by all necessary corporate action on its part, and, neither the
execution and delivery thereof nor its performance of any of the terms and
provisions thereof will violate any Federal or Utah law or regulation
relating to its banking or trust powers or contravene or result in any
breach of, or constitute any default under its articles of association, or
bylaws or the provisions of any indenture, mortgage, contract or other
agreement to which it is a party or by which it or its properties may be
bound or affected;
(iii) each of this Agreement, the Liquidity Facilities and the
Intercreditor Agreement has been duly executed and delivered by it and,
assuming that each such agreement is the legal, valid and binding
obligation of each other party thereto, is or will be, as the case may be,
the legal, valid and binding obligation of the Subordination Agent,
enforceable in accordance with its respective terms except as limited by
bankruptcy, insolvency, moratorium, reorganization or other similar laws or
equitable principles of general application to or affecting the enforcement
of creditors' rights generally (regardless of whether such enforceability
is considered in a proceeding in equity or at law);
(iv) there are no Taxes payable by the Subordination Agent imposed
by the State of Utah or any political subdivision or taxing authority
thereof in connection with the execution, delivery and performance by
the Subordination Agent of this Agreement, any of the Liquidity
Facilities or the Intercreditor Agreement (other than franchise or other
taxes based on or measured by any fees or compensation received by the
Subordination Agent for services rendered in connection with the
transactions contemplated by the Intercreditor Agreement or any of the
Liquidity Facilities), and there are no Taxes payable by the
Subordination Agent imposed by the State of Utah or any political
subdivision thereof in connection with the acquisition, possession or
ownership by the Subordination Agent of any of the Certificates other
than franchise or other taxes based on or measured by any fees or
compensation received by the Subordination Agent for services rendered
in connection with the transactions contemplated by the Intercreditor
Agreement or any of the Liquidity Facilities);
(v) there are no pending or threatened actions or proceedings
against the Subordination Agent before any court or administrative agency
which individually or in the aggregate, if determined adversely to it,
would materially adversely affect the ability of the Subordination Agent to
perform its obligations under this Agreement, the Intercreditor Agreement
or any Liquidity Facility;
(vi) the Subordination Agent has not directly or indirectly offered
any Certificate for sale to any Person or solicited any offer to acquire
any Certificates from any Person, nor has the Subordination Agent
authorized anyone to act on its behalf to offer directly or indirectly any
Certificate for sale to any Person, or to solicit any offer to acquire any
Certificate from any Person; and the Subordination Agent is not in default
under any Liquidity Facility; and
(vii) the Subordination Agent is not directly or indirectly
controlling, controlled by or under common control with the Owner
Participant, the Owner Trustee, any Underwriter or the Lessee.
(b) Covenants. (i) The Subordination Agent agrees not to amend any
Liquidity Facility without the consent of the Lessee (so long as no Event of
Default shall have occurred and be continuing) and of the Owner Participant
(such consents not to be unreasonably withheld).
(ii) In connection with the deposit in the applicable Cash
Account of amounts drawn pursuant to any Downgrade Drawing under a
Liquidity Facility, the Subordination Agent agrees, so long as no Event of
Default shall have occurred and be continuing, to pay to the Lessee
promptly following each Regular Distribution Date any Investment Earnings
on the amount so deposited which remain after application of such
Investment Earnings pursuant to Section 2.06 of such Liquidity Facility to
the interest payable on such Downgrade Drawing under Section 3.07 of such
Liquidity Facility. Capitalized terms used in this Section shall have the
meanings specified in the Intercreditor Agreement.
ARTICLE 8
TAXES
Section 8.01. Lessee's Obligation to Pay Taxes. (a) Generally. The
Lessee agrees promptly to pay when due, and to indemnify and hold each
Indemnitee harmless from all license, recording, documentary, registration and
other fees and all taxes (including, without limitation, income, gross
receipts, sales, rental, use, value added, property (tangible and intangible),
ad valorem, excise and stamp taxes), fees, levies, imposts, recording duties,
duties, charges, assessments or withholdings of any nature whatsoever,
together with any assessments, penalties, fines, additions to tax or interest
thereon (individually, a "Tax," and collectively called "Taxes"), however
imposed or asserted (whether imposed upon any Indemnitee, the Lessee, all or
any part of the Aircraft, Airframe, any Engine or any Part or the Lessor's
Estate, the Trust Indenture Estate, Rent, the Certificates or otherwise upon
or with respect to any Operative Agreement, any payments thereunder or
otherwise in connection therewith), by any Federal, state or local government
or taxing authority in the United States, or by any government or taxing
authority of a foreign country or of any political subdivision or taxing
authority thereof or by a territory or possession of the United States or an
international taxing authority relating to or measured by:
(i) the construction, mortgaging, financing, refinancing, purchase,
acceptance, rejection, delivery, nondelivery, transport, location, ownership,
registration, reregistration, deregistration, insuring, assembly, possession,
repossession, operation, use, non-use, condition, maintenance, repair,
improvement, conversion, sale, return, abandonment, preparation, installation,
storage, redelivery, replacement, manufacture, leasing, subleasing,
sub-subleasing, modification, alteration, rebuilding, importation, transfer of
title, transfer of registration, exportation or other application or
disposition of, or the imposition of any Lien (or the incurrence of any
liability to refund or pay over any amount as a result of any Lien) on, the
Aircraft, the Airframe, any Engine or any Part or any interest therein;
(ii) amounts payable under the Operative Agreements;
(iii) the Property, or the income or other proceeds received with
respect to the Property attributable to the transactions contemplated by
the Operative Agreements, held by the Owner Trustee under the Trust
Agreement or after an Event of Default under the Lease, or by the Indenture
Trustee under the Indenture;
(iv) otherwise with respect to any Operative Agreement, any
interest therein or by reason of the transactions described in or
contemplated by the Operative Agreements;
(v) the principal or interest or other amounts payable with respect
to the Certificates;
(vi) the Pass Through Certificates or the Certificates or the
issuance, sale, acquisition, reoptimization, or refinancing thereof or the
beneficial interests in the Trust Estate or the Trust Indenture Estate or
the creation thereof under the Trust Agreement or the Indenture, or the
security interest created or perfected thereby or by any filing thereof;
(vii) any assumption by the Lessee pursuant to Section 7.11 of this
Agreement and Section 2.12 of the Indenture;
(viii) the Aircraft, the Airframe, any Engine or any Part; or
(ix) the rentals (including Basic Rent, Renewal Rent and
Supplemental Rent), receipts or earnings arising from the Operative
Agreements.
(b) Exceptions. The indemnity provided for in Section 8.01(a) shall
not extend to any of the following:
(i) With respect to an Indemnitee, Taxes based upon, measured by or
with respect to the net or gross income, items of tax preference or minimum
tax or excess profits, receipts, value-added taxes, capital, franchise, net
worth (whether denominated income, excise, capital stock, or doing
business taxes) or other similarly-based taxes (other than sales, use,
transfer, rental, ad valorem, stamp, property, or similar taxes) ("Income
Taxes"), provided, however, that this clause (i) shall not exclude from the
indemnity described in Section 8.01(a) above any such Income Taxes to the
extent such taxes are imposed by any jurisdiction in which the Indemnitee
would not be subject to such taxes but for, or would be subject to such
taxes solely as a result of, (x) the operation, registration, location,
presence, or use of the Aircraft, Airframe, any Engine or any Part thereof,
in such jurisdiction or (y) the place of incorporation or principal office
or the activities of the Lessee or any sublessee in such jurisdiction (it
being understood that (A) any such indemnity would be payable only to the
extent of the net harm incurred by the Indemnitee from such Income Taxes,
taking into account any incremental current Tax benefit in another tax
jurisdiction resulting from payment of such Income Taxes and (B) this
sentence would require indemnification in a jurisdiction in which the
Indemnitee is already subject to an Income Tax (an "Existing Income Tax")
only if an event set forth in Clause (x) or (y) of this sentence causes the
Indemnitee to be subject to an Income Tax in that jurisdiction (a "New
Income Tax") other than an Existing Income Tax, and such New Income Tax
would have been imposed even if the activities contemplated by the
Operative Agreements were the Indemnitee's sole nexus to the jurisdiction);
provided, further, that the provisions of this paragraph (b)(i) relating to
Income Taxes shall not exclude from the indemnity described in Section
8.01(a) hereof any Income Taxes for which the Lessee would be required to
indemnify an Indemnitee (x) so that any payment under the Operative
Agreements, otherwise required to be made on an After-Tax Basis, is made on
an After-Tax Basis or (y) pursuant to the last sentence of Section 8.02,
8.05, 9.02 or 9.05 of this Agreement;
(ii) [Reserved];
(iii) Taxes imposed with respect to the Aircraft and arising out
of or measured by acts, omissions, events or periods (or any combination
of the foregoing) which occur after the later of (A) the payment in full
of all amounts payable by the Lessee pursuant to and in accordance with
the Operative Agreements, or the earlier discharge in full of the
Lessee's payment obligations under and in accordance with the Lease and
the Operative Agreements, and (B) the earliest of (x) the expiration of
the Term of the Lease and return of the Aircraft in accordance with
Article 12 of the Lease, (y) the termination of the Lease in accordance
with the applicable provisions of the Lease and return of the Aircraft
in accordance with the Lease, or (z) the termination of the Lease in
accordance with the applicable provisions of the Lease and the transfer
of all right, title and interest in the Aircraft to the Lessee pursuant
to its exercise of any of its purchase options set forth in Section
4.02(a) of the Lease, provided that this exclusion (iii) shall not apply
in respect of any payment made after the dates set forth in clauses (A)
and (B) above unless such payment is made with respect to any event or
circumstance occurring on, with or prior to such return or transfer or
period prior to such return or transfer, or Taxes incurred in connection
with the exercise of any remedies pursuant to Article 17 of the Lease
following the occurrence of an Event of Default;
(iv) As to the Owner Trustee, Taxes imposed against the Owner
Trustee upon or with respect to any fees for services rendered in its
capacity as Owner Trustee under the Trust Agreement or, as to the
Indenture Trustee, Taxes imposed against the Indenture Trustee upon or
with respect to any fees received by it for services rendered in its
capacity as Indenture Trustee under the Indenture;
(v) Taxes imposed on an Indemnitee that would not have been imposed
but for the willful misconduct or gross negligence of such Indemnitee
(other than gross negligence or willful misconduct not actually committed
by but instead imputed to such Indemnitee by reason of such Indemnitee's
participation in the transactions contemplated by the Operative Agreements)
or the breach by such Indemnitee of: (i) in the case of an Indemnitee other
than the Owner Participant, any representation, warranty or covenant
contained in the Operative Agreements or any document delivered in
connection therewith and (ii) in the case of the Owner Participant, the
representations or covenants in Sections 7.02(a), (c); 7.03(a)(i), (ii),
(iii), (iv), (vii), (ix); and 7.03(b), (c), (d), (e) of this Agreement (in
either case unless attributable to a breach of representation, warranty or
covenant of the Lessee);
(vi) Taxes imposed on, and not collected by withholding from
payments of Rent, the Owner Trustee or the Owner Participant or any
successor, assign or Affiliate thereof which became payable by reason of
any voluntary or involuntary transfer or disposition by such Indemnitee
subsequent to the Delivery Date, including revocation of the Trust, of any
interest in some or all of the Aircraft, Airframe, Engines or Parts thereof
or its interest in the Lessor's Estate (not including any transfers of any
Certificates pursuant to Section 15.01(a) hereof) or a disposition in
connection with a bankruptcy or similar proceedings involving either the
Lessor or the Owner Participant other than (A) transfers resulting from a
loss, substitution or modification of the Aircraft, Engines or any Part,
(B) any transfer of the Aircraft, Engines or any Part (in each case other
than at Fair Market Value) to the Lessee or other person in possession
thereof, (C) transfers attributable to an Event of Default or (D) a
transfer pursuant to the Lessee's exercise of its rights under Section
10.01 of the Lease; the parties agree to cooperate to minimize any such
Taxes covered by this provision;
(vii) Taxes imposed on the Owner Participant for which the Lessee is
obligated to indemnify the Owner Participant pursuant to the Tax Indemnity
Agreement;
(viii) Taxes imposed on a successor, assign or other transferee
of the Owner Participant or the Owner Trustee that is not a U.S. Person
or an Indemnitee as of the date hereof under the Operative Agreements
(including, without limitation, a transferee which is a new lending
office of an original Indemnitee) which on the Certificate Closing Date
is an Indemnitee (for purposes of this clause (viii), an "original
Indemnitee") or such original Indemnitee to the extent that such Taxes
exceed the amount of Taxes that would have been imposed and would have
been indemnifiable pursuant to Section 8.01(a) hereof had there not been
a succession, assignment or other transfer by such original Indemnitee
of any such interest of such Indemnitee in the Aircraft or any Part, any
interest in or under any Operative Agreement, or any proceeds thereunder
(it being understood that for purposes of determining the amount of
indemnification that would have been due to such original Indemnitee
with respect to a net income Tax, it shall be assumed that such original
Indemnitee would be subject to taxation on its income at the highest
marginal statutory rate applicable to it), provided, however, that the
exclusion provided by this clause (viii) shall not apply in the case of
a succession, transfer or disposition (A) that occurs after the Lease
has been declared in default or if such transfer or disposition is
pursuant to the exercise of remedies under Article 17 of the Lease, (B)
which is an actual or deemed transfer pursuant to Section 7.11 hereof or
as a consequence of a Refinancing under Section 15.01 hereof, or any
actual or deemed transfer of a Certificate that as part of a Refinancing
under Section 15.01 hereof is not retired, but only to the extent the
Taxes attributable to such transfer exceed the amount of Taxes that
would have been imposed on such transferor if the debt had instead been
retired, (C) to the extent necessary to make payments with respect to
such Taxes on an After-Tax Basis, (D) to the extent such Taxes are
directly attributable to the failure of the Lessee to take
administrative actions as have been reasonably requested of it in
writing in a timely manner and which will result in no after-tax cost or
expense to the Lessee or (E) in the case of the Owner Participant or the
Lessor, to any Tax other than an Income Tax;
(ix) [Reserved];
(x) Any Taxes which have been included in the Purchase Price and
which have been paid to the applicable taxing authorities;
(xi) Any Taxes which would not have been imposed but for a Lessor's
Lien or an Indenture Trustee's Lien; and
(xii) Any Taxes imposed on the Owner Participant arising under or in
connection with any prohibited transaction, within the meaning of Section
406 of ERISA or Section 4975(c)(1) of the Code ("Prohibited Transaction");
provided, however, that in the event any prohibited transaction arises
which is not exempt under any class prohibited transaction exemption or any
individual or statutory prohibited transaction exemption (individually or
collectively, a "PTE") then the indemnity provided for herein shall extend
to any Taxes incurred by the Owner Participant (or any Affiliate thereof)
as the result of any Prohibited Transaction arising out of the purchase or
holding of any Loan Certificates by an employee benefit plan subject to
Title I of ERISA or by a plan subject to Section 4975 of the Code
(individually or collectively, an "ERISA Plan") with respect to which the
Owner Participant is a party in interest, within the meaning of Section
3(14) of ERISA, or a disqualified person,within the meaning of Section 4975
of the Code, except, however, that such Indemnity shall not extend to any
Taxes incurred by the Owner Participant (or any Affiliate thereof) as the
result of any Prohibited Transaction occurring with respect to the purchase
or holding of any Loan Certificates (A) over which purchase or holding the
Owner Participant (or an Affiliate thereof) has discretion or control
(other than in the capacity of a custodian, directed trustee or other
similar nondiscretionary capacity), or (B) by an ERISA Plan with respect to
which the Owner Participant (or any Affiliate thereof) is a "plan sponsor"
within the meaning of Section 3(16)(B) of ERISA.
(c) Withholding. The Pass Through Trustee shall withhold any Taxes
required to be withheld on payments to any holder of a Pass Through
Certificate who is a Non-U.S. Person except to the extent that such a holder
of a Pass Through Certificate has furnished evidence to the Pass Through
Trustee sufficient under applicable law to entitle such holder of a Pass
Through Certificate to any exemption from or reduction in the rate of
withholding on interest claimed by such holder of a Pass Through Certificate.
The Indenture Trustee shall withhold any Taxes required to be withheld on any
payment to a Holder pursuant to Section 5.09 of the Indenture. If the
Indenture Trustee or the Pass Through Trustee fails to withhold a Tax required
to be withheld with respect to any Holder of a Certificate or any holder of a
Pass Through Certificate or any claim is otherwise asserted by a taxing
authority against the Owner Trustee or Owner Participant for any withholding
tax, the Lessee will indemnify the Owner Trustee and the Owner Participant
(without regard to the exclusions set forth in Section 8.01(b) hereof) on an
After-Tax Basis against any such Taxes required to be withheld and any
interest and penalties with respect thereto, along with any other costs
(including reasonable attorney's fees) incurred in connection with any such
claim. The Indenture Trustee or the Pass Through Trustee, as the case may be,
in its individual capacity (and without recourse to the Trust Indenture
Estate), shall indemnify the Lessee (without regard to the exclusions set
forth in Section 8.01(b) hereof) on an After-Tax Basis for any payment the
Lessee shall have made pursuant to the preceding sentence.
Section 8.02. After-Tax Basis. The amount which the Lessee shall be
required to pay with respect to any Tax indemnified against under Section 8.01
shall be an amount sufficient to restore the Indemnitee, on an After-Tax
Basis, to the same position such party would have been in had such Tax not
been incurred, provided that the calculation of any additional amounts owing
to any Indemnitee as a result of the Lessee's obligation to indemnify on an
After-Tax Basis shall be made without regard to the exclusions set forth in
Section 8.01(b). If any Indemnitee actually realizes a tax benefit by
reason of the payment of any Tax paid or indemnified against by the Lessee,
such Indemnitee shall promptly pay to the Lessee, to the extent such tax
benefit was not previously taken into account in computing such payment,
but not before the Lessee shall have made all payments then due to such
Indemnitee under this Agreement, the Tax Indemnity Agreement and any other
Operative Agreement, an amount equal to the lesser of (x) the sum of such
tax benefit plus any other tax benefit actually realized by such Indemnitee
that would not have been realized but for any payment made by such
Indemnitee pursuant to this sentence and not already paid to the Lessee,
and (y) the amount of the payment made under Section 8.01 hereof and this
Section 8.02 by the Lessee to such Indemnitee plus the amount of any other
payments by the Lessee to such Indemnitee theretofore required to be made
under this Section 8.02 and Sections 8.01 and 8.05 hereof (and the excess,
if any, of the amount described in clause (x) above over the amount
described in clause (y) above shall be carried forward and applied to
reduce pro tanto any subsequent obligations of the Lessee to make payments
to such Indemnitee pursuant to Section 8.01 hereof); provided, however,
that notwithstanding the foregoing portions of this sentence, such
Indemnitee shall not be obligated to make any payment to the Lessee
pursuant to this sentence as long as an Event of Default shall have
occurred and be continuing under the Lease. The Lessee shall reimburse on
an After-Tax Basis such Indemnitee (and without regard to Section 8.01(b)
hereof, except for clause (v) thereof) for any payment of a tax benefit
pursuant to the preceding sentence (or a tax benefit otherwise taken into
account in calculating the Lessee's indemnity obligation hereunder) to the
extent that such tax benefit is subsequently disallowed or reduced
(including the expiration of any tax credit carryovers or carrybacks of
such Indemnitee that would not otherwise have expired).
Section 8.03. Time of Payment. Any amount payable to an Indemnitee
pursuant to this Article 8 shall be paid promptly, but in any event within 30
days after receipt of a written demand therefor from such Indemnitee
accompanied by a written statement describing in reasonable detail the basis
for such indemnity and the computation of the amount so payable, provided that
in the case of amounts which are being contested by the Lessee in good faith
or by the Indemnitee in either case pursuant to Section 8.04 hereof, such
amount shall be payable within 30 days after the time such contest is finally
resolved.
Section 8.04. Contests. If a written claim is made against any
Indemnitee for Taxes with respect to which the Lessee is liable for a payment
or indemnity hereunder, such Indemnitee shall promptly (but in any event
within 30 days of receipt thereof) give the Lessee notice in writing of such
claim and shall furnish the Lessee with copies of any written requests for
information sent to such Indemnitee (and not the Lessee) from any taxing
authority to the extent relating to such Taxes with respect to which the
Lessee may be required to indemnify hereunder and with respect to which it
would be necessary or beneficial to have information provided by the Lessee;
provided, however, that the failure of an Indemnitee to give such notice or
furnish such copy shall not terminate any of the rights of such Indemnitee
under this Article 8, except to the extent that the Lessee's contest rights
have been materially and adversely impaired by the failure to provide such
notice or copy. The Lessee may, at its option, contest in its own name or, if
required by law, require the Indemnitee to contest in good faith, with due
diligence and at the Lessee's expense, if timely requested in writing by the
Lessee, the validity, applicability or amount of such Taxes by:
(i) resisting payment thereof if lawful and practicable or not
paying the same except under protest if protest is necessary and proper in
each case so long as non-payment will not result in a material risk of the
sale, forfeiture or loss of, or the creation of a Lien other than a
Lessor's Lien on the Aircraft, Airframe or any Engine or any risk of
criminal liability; or
(ii) if the payment be made, using reasonable efforts to obtain a
refund thereof in appropriate administrative and judicial proceedings.
Notwithstanding the foregoing, the Lessee shall not be permitted or entitled
to contest any such Tax in its own name unless the Tax is reflected in a
report or a return of the Lessee or raised in an audit or other proceeding of
the Lessee and the Lessee is allowed to directly contest such Tax under
applicable law of the taxing jurisdiction provided, that if the Lessee is so
permitted under applicable law to contest a Tax asserted against the Lessee
and the same or similar Tax is also asserted against the Indemnitee, each of
the Lessee and such Indemnitee shall conduct its contest in its own name and
the Lessee and such Indemnitee will cooperate in a reasonable manner with
respect to the respective contests of such Tax.
If the Indemnitee, after reasonable discussion with the Lessee and
consideration in good faith of any suggestion made by the Lessee as to the
method of pursuing such contest, elects to conduct the contest, such
Indemnitee shall control the contest and shall determine the manner in which
to contest such Taxes and shall periodically or upon the Lessee's request
advise the Lessee of the progress of such contest; provided, however, that the
Lessee shall have the right to be consulted in good faith with respect to any
contest of claims subject to indemnification hereunder, including governmental
and judicial conferences and the right to be consulted in good faith regarding
the relevant portions of all related submissions to any governmental or other
authority, provided, however, that the Lessee shall be permitted to
participate in any such contest only (x) with respect to issues that can be
separated on audit from any Taxes for which the Lessee is not required to
indemnify the Indemnitee hereunder, and (y) if the Indemnitee shall have
determined that in its judgment, exercised in its sole discretion, neither
such participation nor the separation of issues will adversely affect the
Indemnitee. The Indemnitee will not settle a contest that results in a final
determination without consent of the Lessee, unless the Indemnitee waives its
right to indemnification with respect to such contest and any related contest.
Notwithstanding the preceding sentences of this Section 8.04, such Indemnitee
shall not be required to take or continue any action unless the Lessee shall
have (i) agreed in writing to pay and shall pay the Indemnitee on a current
basis and on an After-Tax Basis the after-tax cost of all reasonable fees and
expenses (including reasonable attorneys' fees and accountants' fees) which
such Indemnitee may incur as a result of contesting such Taxes, (ii) made all
payments and indemnities (other than contested payments and indemnities) then
due to the Indemnitee hereunder or with respect to any of the transactions
contemplated by or under the Operative Agreements and (iii) acknowledged in
writing the Lessee's obligation to such Indemnitee pursuant to this Agreement
to the extent that the contest is not successful, unless it is reasonably
clear from the resolution of the contest that an exclusion set forth in
Section 8.01(b) hereof applies. In no event shall such Indemnitee be required
or the Lessee be permitted to contest pursuant to this Section 8.04 the
imposition of any Tax for which the Lessee is obligated to indemnify any
Indemnitee hereunder unless (i) such Indemnitee shall have received, at the
Lessee's expense, an opinion of its tax counsel, such counsel to be reasonably
satisfactory to the Lessee ("Tax Counsel"), to the effect that there exists a
reasonable basis for contesting such claim, (ii) such Indemnitee (and, if such
Indemnitee is not the Owner Participant, the Owner Participant and such
Indemnitee) shall have determined that such contest will not result in any
material risk of loss, sale or forfeiture of, or the creation of a Lien (other
than Lessor's Liens) on, the Aircraft or any part thereof or interest thereon
or in a risk of criminal liability, or adversely affect the Trust Indenture
Estate, (iii) if a Payment Default, Bankruptcy Default or an Event of Default
shall have occurred and be continuing, the Lessee shall have provided security
for its obligations hereunder reasonably satisfactory to the Indemnitee, (iv)
if such contest shall be conducted in a manner requiring payment of the claim
in advance, the Lessee shall have advanced sufficient funds, on an interest
free basis, to make the payment required, and agreed to indemnify the
Indemnitee against any additional net adverse tax consequences on an After-Tax
Basis to such Indemnitee of such advance, (v) the issue shall not be the same
as an issue previously contested hereunder and decided adversely, unless the
Indemnitee shall have received at the Lessee's sole expense, a written
opinion, in form and substance reasonably satisfactory to such Indemnitee, of
Tax Counsel to the effect that the applicable circumstances or law has changed
and that in light thereof, there is substantial authority for contesting such
claim and (vi) the amount of the indemnity payments the Lessee would be
required to make with respect to such adjustment, when aggregated with similar
adjustments that could be raised in other taxable years of such Indemnitee
exceeds $50,000; provided, that in the event that such Indemnitee is not
required under this paragraph to contest any Tax liability for which the
Lessee is obligated to indemnify any Indemnitee, the Lessee may contest such
Tax liability in the name of the Lessee, if permitted by law. The Lessee may
appeal or require the Indemnitee to appeal any judicial decision provided the
foregoing requirements of this Section 8.04 are met and the Indemnitee shall
have received, at the Lessee's expense, an opinion of Tax Counsel, to the
effect that there is substantial authority for such appeal.
Nothing contained in this Section 8.04 shall require any
Indemnitee to contest or continue to contest, or permit Lessee to contest,
a claim which such Indemnitee would otherwise be required to contest
pursuant to this Section 8.04, if such Indemnitee shall waive payment by
Lessee of any amount that might otherwise be payable by Lessee under this
Article 8 in connection with such claim.
Section 8.05. Refunds. Upon receipt by an Indemnitee of a refund of
all or any part of any Taxes which the Lessee shall have paid for such
Indemnitee or for which the Lessee shall have reimbursed or indemnified such
Indemnitee, and provided there shall not have occurred and be continuing any
Payment Default, Bankruptcy Default or Event of Default by the Lessee
hereunder or under the Lease (in which case payment shall not be made to the
Lessee until such Payment Default, Bankruptcy Default or Event of Default
shall have been cured), such Indemnitee shall pay to the Lessee an amount
equal to the amount of such refund less (x) any expenses not previously
reimbursed, (y) all payments then due to such Indemnitee under this Article
8 and (z) Taxes imposed with respect to the accrual or receipt thereof,
including interest received attributable thereto, plus any tax benefit
actually realized by such Indemnitee as a result of any payment by such
Indemnitee made pursuant to this sentence; provided, however, that such amount
shall not be payable (a) before such time as the Lessee shall have made all
payments or indemnities then due and payable to such Indemnitee under this
Article 8 and (b) to the extent that the amount of such payment would exceed
(i) the amount of all prior payments by the Lessee to such Indemnitee pursuant
to this Article 8 less (ii) the amount of all prior payments by such
Indemnitee to the Lessee pursuant to this Article 8.
Any subsequent loss of such refund or tax benefit shall be treated as
a Tax subject to indemnification under the provisions of this Article 8 (in
the case of any such tax benefit, without regard to Section 8.01(b) hereof).
Section 8.06. Lessee's Reports. In case any report or return is
required to be made with respect to any Taxes against which the Lessee is or
may be obligated to indemnify the Indemnitees under this Article 8, the Lessee
shall make such report or return, except for any such report or return that
the Indemnitee has notified the Lessee that it intends to file, in such manner
as will show the ownership of the Aircraft in the Owner Trustee and shall send
a copy of the applicable portions of such report or return to the Indemnitee
and the Owner Trustee or will notify the Indemnitee of such requirement and
make such report or return in such manner as shall be satisfactory to such
Indemnitee and the Owner Trustee. The Lessee will provide such information
reasonably available to the Lessee as the Indemnitee may reasonably require
from the Lessee to enable the Indemnitee to fulfill its tax filing
requirements with respect to the transactions contemplated by the Operative
Agreements (without duplication of the requirements of Section 3 of the Tax
Indemnity Agreement) and any audit information request arising from any such
filing. The Indemnitee will provide such information reasonably available to
it as the Lessee may reasonably require from such Indemnitee to enable the
Lessee to fulfill its tax filing requirements with respect to the transactions
contemplated by the Operative Agreements and any audit information request
arising from such filing; provided that in no event shall any Indemnitee be
required to provide copies of any of its tax returns or other confidential
information. The Lessee shall hold the Indemnitee harmless on an After-Tax
Basis from and against any liabilities, including penalties, additions to tax,
fines and interest, imposed upon or incurred by such Indemnitee to the extent
directly attributable to any insufficiency or inaccuracy in any return,
statement, or report prepared by the Lessee or information supplied by the
Lessee, or directly attributable to the Lessee's failure to supply reasonably
available information to such Indemnitee as required by this Section 8.06.
Section 8.07. Survival of Obligations. The representations,
warranties, indemnities and agreements of the Lessee provided for in this
Article 8 and the Lessee's obligations under any and all of them shall survive
the expiration or other termination of the Operative Agreements.
Section 8.08. Payment of Taxes. With respect to any Tax otherwise
indemnifiable hereunder by the Lessee and applicable to the Aircraft,
Airframe, any Engine or Parts, to the extent permitted by the applicable
federal, state, local or foreign law, the Lessee shall pay such tax directly
to the relevant Taxing authority and file any returns or reports required with
respect thereto to the extent legally entitled to do so in its own name;
provided, however, that the Lessee shall not make any statements or take any
action which would indicate that the Lessee or any Person other than the Owner
Trustee or Owner Participant is the owner of the Aircraft, the Airframe, any
Engine or any Part or which would otherwise be inconsistent with the terms of
the Lease or the Tax Indemnity Agreement and the position thereunder of the
Owner Trustee and the Owner Participant. Copies of such returns or reports,
together with evidence of payment of any tax due, shall be sent by the Lessee
to the Owner Participant within thirty (30) days after the date of each
payment by the Lessee of any Tax.
Section 8.09. Reimbursements by Indemnitees Generally. To the
extent the Lessee is required to pay or withhold any Tax imposed on or with
respect to an Indemnitee in respect of the transactions contemplated by the
Operative Agreements, which Tax is not otherwise the responsibility of the
Lessee under the Operative Agreements, or any other written agreements between
the Lessee and such Indemnitee, then such Indemnitee shall pay to the Lessee
within 30 days of the Lessee's demand therefor an amount which equals the
amount actually paid by the Lessee with respect to such Taxes.
Section 8.10. Special Indemnity. Notwithstanding anything in this
Article 8 to the contrary, the Lessee shall hold the Owner Participant
harmless on an After-Tax Basis from any Taxes or losses arising from or in
connection with the transactions contemplated by Section 17.02 hereof.
ARTICLE 9
GENERAL INDEMNITY
Section 9.01. Generally. (a) The Lessee agrees to indemnify each
Indemnitee against and agrees to protect, defend, save and keep harmless each
Indemnitee from any and all liabilities, obligations, losses, damages,
penalties, claims, actions, suits, costs, disbursements and expenses
(including legal fees and expenses and all costs and expenses relating to
amendments, supplements, adjustments, consents, refinancings and waivers under
the Operative Agreements except as otherwise provided in Section 10.01(c)(i)
or Article 15 hereof) of every kind and nature, including without limitation
Make-Whole Premium (unless excluded pursuant to Section 3.03 of the Lease)
(whether or not any of the transactions contemplated by this Agreement are
consummated) (individually, an "Expense," collectively, "Expenses"), which
may be imposed on, incurred or suffered by or asserted against any Indemnitee,
in any way relating to, based on or arising out of:
(i) this Agreement (including, without limitation, the execution,
delivery and performance hereof by the Owner Participant prior to the
delivery of the Aircraft), the Lease, the Indenture, the Trust Agreement,
the Intercreditor Agreement, the Liquidity Facilities, the Pass Through
Agreement, AVSA's FAA Bill of Sale, AVSA's Warranty Bill of Sale or any
other Operative Agreement or any other document entered into in connection
herewith or any sublease or transfer or any transactions contemplated
hereby or thereby;
(ii) the operation, possession, use, non-use, maintenance, storage,
overhaul, delivery, non-delivery, control, repair or testing of the
Aircraft, Airframe, or any Engine or any engine used in connection with the
Airframe, or any part thereof by the Lessee, any sublessee or any other
Person whatsoever, whether or not such operation, possession, use, non-use,
maintenance, storage, overhaul, delivery, non-delivery, control, repair or
testing is in compliance with the terms of the Lease, including without
limitation, claims for death, personal injury or property damage or other
loss or harm to any Person whatsoever, including, without limitation, any
passengers, shippers or other Persons wherever located, and claims relating
to any laws, rules or regulations, including, without limitation,
environmental control, noise and pollution laws, rules or regulation;
(iii) the manufacture, design, sale, return, purchase, acceptance,
rejection, delivery, non-delivery, condition, repair, modification,
servicing, rebuilding, airworthiness, registration, reregistration, import,
export, performance, non-performance, lease, sublease, transfer,
merchantability, fitness for use, alteration, substitution or replacement
of any Airframe, Engine, or Part under the Lease, the Purchase Agreement,
the Purchase Agreement Assignment, the GTA or the Engine Warranty
Assignment or other transfer of use or possession, or other disposition of
the Aircraft, the Airframe, any Engine or any Part including, without
limitation, latent and other defects, whether or not discoverable, strict
tort liability, and any claims for patent, trademark or copyright
infringement;
(iv) any breach of or failure to perform or observe, or any other
non-compliance with, any condition, covenant or agreement to be performed,
or other obligations of the Lessee under any of the Operative Agreements,
or the falsity or inaccuracy of any representation or warranty of the
Lessee in any of the Operative Agreements (other than representations and
warranties in the Tax Indemnity Agreement);
(v) the Collateral Account and the Liquid Collateral;
(vi) the enforcement of the terms of the Operative Agreements and
the administration of the Trust Indenture Estate; and
(vii) the offer, issuance, sale or delivery of any Certificate or any
Pass Through Certificate, or any refunding or refinancing thereof, or
interest in the Lessor's Estate or the Trust Agreement or any similar
interest or in any way relating to or arising out of the Trust Agreement
and the Lessor's Estate, the Indenture or the Trust Indenture Estate
(including, without limitation, any claim arising out of the Securities Act
of 1933, as amended, the Securities Exchange Act of 1934, as amended, or
any other federal or state statute, law or regulation, or at common law or
otherwise relating to securities), or the action or inaction of the Owner
Trustee or Indenture Trustee as trustees, in the manner contemplated by
this Agreement, the Indenture, the Indenture and Security Agreement
Supplement or the Trust Agreement and in the case of the Owner Participant,
its obligations arising under Section 6.01 of the Trust Agreement.
The foregoing indemnity by the Lessee is intended to include and cover, but is
not limited to, any Expense to which the Indemnitees may be subject as a
result of their respective ownership or leasing of any interest in or holding
of any Lien on the Aircraft, Airframe, any Engine or Part during the Term,
whether or not in the Lessee's possession or control, insofar as such Expense
relates to any activity or event whatsoever involving such item while it is
under lease to the Lessee (or after termination of the Lease in connection
with the exercise of remedies thereunder to the extent that such Expense is
attributable to the transactions contemplated hereby and by the other
Operative Agreements), and such Expense does not fall within any of the
exceptions listed in Section 9.01(b) hereof.
(b) Exceptions. The indemnity provided for in Section 9.01(a) shall
not extend to any Expense of any Indemnitee to the extent it:
(i) would not have occurred but for the willful misconduct or gross
negligence of such Indemnitee;
(ii) after the Delivery Date, is in respect of the Aircraft, and is
attributable to acts or events which occur after the Aircraft is no longer
part of the Lessor's Estate or, if the Aircraft remains a part of the
Lessor's Estate, after the expiration of the Term (unless the Aircraft is
being returned at such time, in which case after return of physical
possession; provided that if the Lease has been terminated pursuant to
Article 17 thereof, the indemnity provided in Section 9.01(a) hereof shall
survive for so long as Lessor or the Indenture Trustee shall be exercising
remedies under such Article 17), or to acts or events which occur after
return of possession of the Aircraft by the Lessee in accordance with the
provisions of the Lease (subject to the foregoing proviso if the Lessor has
terminated the Lease pursuant to Article 17 of the Lease) but in any such
case only to the extent not fairly attributable to acts or omissions of the
Lessee prior to expiration of the Term, including without limitation the
Lessee's failure to fully discharge all of its obligations under the Lease
or the other Operative Agreements;
(iii) is a Tax, whether or not the Lessee is required to indemnify
therefor pursuant to Article 8 hereof or pursuant to the Tax Indemnity
Agreement;
(iv) is a cost or expense required to be paid by the Owner
Participant or its permitted transferees (and not by the Lessee) pursuant
to this Agreement or any other Operative Agreement and for which the Lessee
is not otherwise obligated to reimburse the Owner Participant, directly or
indirectly pursuant to the terms of this Agreement or such other Operative
Agreement;
(v) would not have been incurred by such Indemnitee if such
Indemnitee had not been in breach of its representations or warranties, or
had not defaulted in the observance and performance of the terms and
provisions required to be observed and performed by it, in this Agreement,
the Purchase Agreement Assignment, the Lease, the Indenture, the Trust
Agreement or any other Operative Agreement to which it is a party unless
such breach or default shall be a result of the breach or default by the
Lessee of any of its obligations under the Operative Agreements or by
another Indemnitee of any of the foregoing;
(vi) [reserved];
(vii) is, in the case of the Owner Participant, Lessor's Liens to the
extent attributable to the Owner Participant; in the case of the Owner
Trustee, Lessor's Liens to the extent attributable to the Owner Trustee; in
the case of SSB, Lessor's Liens to the extent attributable to SSB; and in
the case of the Indenture Trustee, Indenture Trustee's Liens;
(viii) is, in the case of the Owner Participant or the Owner Trustee,
attributable to the offer or sale by such Indemnitee after the Certificate
Closing Date of any interest in the Aircraft, the Lessor's Estate or the
Trust Agreement or any similar interest (including an offer or sale
resulting from bankruptcy or other proceedings for the relief of debtors in
which such Indemnitee is the debtor), unless in each case such offer or
sale shall occur (x) in connection with a Refinancing, (y) as a result of
the occurrence of an Event of Default provided that either the Lease has
been declared in default or the transfer is pursuant to the exercise of
remedies under Article 17 of the Lease or (z) in connection with the
Lessee's exercise of its early termination option under Article 10 of the
Lease or its purchase options under Article 4 of the Lease or in connection
with Article 11 of the Lease;
(ix) is an Expense arising under or in connection with any
prohibited transaction, within the meaning of Section 406 of ERISA or
Section 4975(c)(1) of the Code ("Prohibited Transaction"); provided,
however, that in the event any prohibited transaction arises which is
not exempt under any class prohibited transaction exemption or any
individual or statutory prohibited transaction exemption (individually
or collectively, a "PTE") then the indemnity provided for herein shall
extend to any Expenses incurred by the Owner Participant (or any
Affiliate thereof) as the result of any Prohibited Transaction arising
out of the purchase or holding of any Certificates by an employee
benefit plan subject to Title I of ERISA or by a plan subject to Section
4975 of the Code (individually or collectively, an "ERISA Plan") with
respect to which the Owner Participant is a party in interest, within
the meaning of Section 3(14) of ERISA, or a disqualified person,within
the meaning of Section 4975 of the Code, except, however, that such
Indemnity shall not extend to any Expenses incurred by the Owner
Participant (or any Affiliate thereof) as the result of any Prohibited
Transaction occurring with respect to the purchase or holding of any
Certificates (A) over which purchase or holding the Owner Participant
(or an Affiliate thereof) has discretion or control (other than in the
capacity of a custodian, directed trustee or other similar
nondiscretionary capacity), or (B) by an ERISA Plan with respect to
which the Owner Participant (or any Affiliate thereof) is a "plan
sponsor" within the meaning of Section 3(16)(B) of ERISA.
Section 9.02. After-Tax Basis. The amount which the Lessee shall be
required to pay with respect to any Expense indemnified against under Section
9.01 shall be an amount sufficient to restore the Indemnitee, on an After-Tax
Basis, to the same position such party would have been in had such Expense not
been incurred. If any Indemnitee actually realizes a permanent Tax benefit by
reason of the payment of such Expense paid or indemnified against by the
Lessee which was not considered in the computation thereof, such Indemnitee
shall promptly pay to the Lessee, but not before the Lessee shall have made
all payments theretofore due such Indemnitee under this Agreement, the Tax
Indemnity Agreement and any other Operative Agreement, an amount equal to the
lesser of (x) the sum of such Tax benefit plus any other permanent Tax benefit
actually realized by such Indemnitee as the result of any payment made by such
Indemnitee pursuant to this sentence and (y) the amount of such payment
pursuant to this Section 9.02 by the Lessee to such Indemnitee plus the amount
of any other payments by the Lessee to such Indemnitee theretofore made
pursuant to this Section 9.02 less the amount of any payments by such
Indemnitee to the Lessee theretofore made pursuant to this Section 9.02 (and
the excess, if any, of the amount described in clause (x) above over the
amount described in clause (y) above shall be carried forward and applied to
reduce pro tanto any subsequent obligations of the Lessee to make payments to
such Indemnitee pursuant to this Section 9.02), it being intended that no
Indemnitee should realize a net Tax benefit pursuant to this Section 9.02
unless the Lessee shall first have been made whole for any payments by it to
such Indemnitee pursuant to this Section 9.02; provided, however, that
notwithstanding the foregoing portions of this sentence, such Indemnitee shall
not be obligated to make any payment to the Lessee pursuant to this sentence
so long as an Event of Default shall have occurred and be continuing. Any
Taxes that are imposed on any Indemnitee as a result of the disallowance or
reduction of such Tax benefit referred to in the next preceding sentence in a
taxable year subsequent to the year of allowance and utilization by such
Indemnitee (including the expiration of any tax credit carryovers or
carrybacks of such Indemnitee that would not otherwise have expired) shall be
indemnifiable pursuant to the provisions of Section 8.01 hereof without regard
to Section 8.01(b) hereof.
Section 9.03. Subrogation. Upon the payment in full of any
indemnity pursuant to this Article 9 by the Lessee (but not earlier), the
Lessee shall be subrogated to any right of the Indemnitee, other than with
respect to any of such Indemnitee's insurance policies or in connection
with any indemnity claim the Person indemnified may have against any other
Indemnitee in respect of the matter against which such indemnity has been
made.
Section 9.04. Notice and Payment. Each Indemnitee and the Lessee
shall give prompt written notice one to the other of any liability of which
such party has received notice for which the Lessee is, or may be, liable
under this Article 9; provided, however, that failure to give such notice
shall not terminate any of the rights of the Indemnitees under this Article 9,
except (with respect to such Indemnitee) to the extent that the Lessee has
been materially prejudiced by the failure to provide such notice. Unless
otherwise provided in the Operative Agreements, any amount payable to an
Indemnitee pursuant to this Article 9 shall be paid within 30 days after
receipt of a written demand therefor from such Indemnitee accompanied by a
written statement describing in reasonable detail the basis for such indemnity
and the computation of the amount so payable.
Section 9.05. Refunds. If any Indemnitee shall obtain a recovery of
all or any part of any amount which the Lessee shall have paid to such
Indemnitee or for which the Lessee shall have reimbursed such Indemnitee under
this Article 9, and provided there shall not have occurred a Payment Default
or an Event of Default (in which case payment shall not be made to the Lessee
until such Payment Default or Event of Default shall have been cured) such
Indemnitee shall pay to the Lessee the amount of any such recovery, including
interest received with respect to the recovery, net of any Taxes paid or
payable as a result of the receipt of the recovery and interest, plus any net
additional permanent income tax benefits actually realized by Indemnitee as
the result of any payment made pursuant to this sentence less any reasonable
costs and expense of any Indemnitee not reimbursed by the Lessee; provided,
however, that such amount shall not be payable (a) before such time as the
Lessee shall have made all payments or indemnities then due and payable to
such Indemnitee under this Article 9 or (b) to the extent that the amount of
such payment would exceed the amount of all prior payments by the Lessee to
such Indemnitee pursuant to this Article 9, less the amount of all prior
payments by such Indemnitee to the Lessee pursuant to this Article 9. Any
subsequent loss of such recovery or tax benefit shall be subject to
indemnification under Article 8 or this Article 9, as the case may be, but
without regard to Section 8.01(b) hereof, other than Section 8.01(b)(v)
hereof.
Section 9.06. Defense of Claims. The Lessee or its insurers shall
have the right (in each such case at the Lessee's sole expense) to investigate
or, provided that (i) the Lessee or its insurers shall not reserve the right
to dispute liability with respect to any insurance policies pursuant to which
coverage is sought, (ii) in the case of the Lessee, no Payment Default or
Event of Default shall have occurred and be continuing or shall arise at any
time during the claim and (iii) the Lessee shall have first acknowledged in
writing to such Indemnitee the Lessee's obligation to indemnify such
Indemnitee hereunder in respect of such claim, defend any such claim
covered by insurance for which indemnification is sought pursuant to this
Article 9 and each Indemnitee shall cooperate with the Lessee or its
insurers with respect thereto, and provided, further, the Lessee shall not
be entitled to assume and control the defense of any such claim if and to
the extent (A) such Indemnitee reasonably objects to such control on the
ground that an actual or potential material conflict of interest exists
where it is advisable for such Indemnitee to be represented by separate
counsel or on the grounds that such proceeding involves the potential
imposition of criminal liability on such Indemnitee or (B) such proceeding
will involve any material danger of the sale, forfeiture or loss of, or the
creation of any Lien on the Aircraft or the Trust Estate (unless the Lessee
posts a bond or other security reasonably acceptable in form and substance
to such Indemnitee) or involve any material risk of civil liability to such
Indemnitee for which it is not indemnified hereunder. Subject to the
immediately foregoing sentence, where the Lessee or the insurers under a
policy of insurance maintained by the Lessee undertake the defense of an
Indemnitee with respect to such a claim, no additional legal fees or
expenses of such Indemnitee in connection with the defense of such claim
shall be indemnified hereunder unless the fees or expenses were incurred at
the written request of the Lessee or such insurers. Subject to the
requirement of any policy of insurance applicable to a claim, an Indemnitee
may participate at its own expense at any judicial proceeding controlled by
the Lessee or its insurers pursuant to the preceding provisions, to the
extent that such party's participation does not, in the opinion of the
independent counsel appointed by the Lessee or its insurers to conduct such
proceedings, interfere with such control; and such participation shall not
constitute a waiver of the indemnification provided in this Section 9.06.
No Indemnitee shall enter into any settlement or other compromise with
respect to any claim described in this Section 9.06 without the prior
written consent of the Lessee, which consent shall not unreasonably be
withheld or delayed, unless such Indemnitee waives its right to be
indemnified under this Article 9 with respect to such claim. The Lessee
shall not enter into any settlement or compromise which the Lessee has not
agreed to discharge or with respect to which the Lessee has not agreed to
indemnify such Indemnitee to such Indemnitee's satisfaction or which admits
any criminal violation, gross negligence or willful misconduct on the part
of any Indemnitee without the prior written consent of such Indemnitee.
Section 9.07. Survival of Obligations. The representations,
warranties, indemnities and agreements of the Lessee provided for in this
Article 9 and the Lessee's obligations under any and all of them shall survive
the expiration or other termination of this Agreement, the Tax Indemnity
Agreement, the Trust Agreement, the Indenture, the Purchase Agreement
Assignment, the Engine Warranty Assignment, the Lease and the other Operative
Agreements but, as to such indemnities after the expiration or other
termination of the Lease, only with respect to losses, liabilities,
obligations, damages, penalties, claims, actions, suits, costs, Expenses and
disbursements caused by events occurring or existing (or fairly attributable
to the Lessee's acts or omissions) prior to such termination or expiration or
incurred in the process of (i) the return or disposition of the Aircraft under
Article 12 or Article 17 of the Lease, or (ii) the termination of the Lease or
the Indenture or, if later, the return of the Aircraft.
Section 9.08. Effect of Other Indemnities. The Lessee's obligations
under the indemnities provided for in this Agreement shall be those of a
primary obligor whether or not the Person indemnified shall also be
indemnified with respect to the same matter under the terms of this Agreement,
the Lease, the Indenture, the Trust Agreement, or any other document or
instrument, and the Person seeking indemnification from the Lessee pursuant to
any provision of this Agreement may proceed directly against the Lessee
without first seeking to enforce any other right of indemnification.
Section 9.09. Interest. The Lessee will pay to each Indemnitee on
demand, to the extent permitted by applicable law, interest on any amount of
indemnity not paid when due pursuant to this Article 9 until the same shall be
paid, at the Past Due Rate.
Section 9.10. Special Indemnity. Notwithstanding anything in this
Article 9 to the contrary, the Lessee shall hold the Owner Participant
harmless on an After-Tax Basis from any Taxes or losses arising from or in
connection with the transactions contemplated by Section 17.02 hereof.
ARTICLE 10
TRANSACTION COSTS
Section 10.01. Transaction Costs and Other Costs. (a) Transaction
Costs. The Owner Participant shall pay (or reimburse the Lessee if the Lessee
shall have previously made such payment) all fees and expenses of the
following persons relating to the public offering of the Pass Through
Certificates contemplated by the Underwriting Agreement and related to the
transactions contemplated hereby on the Certificate Closing Date and the
Delivery Date: (i) the fees and expenses of counsel for the Owner Participant;
(ii) the fees and expenses of the transaction documentation counsel for the
Lessee and counsel for the Owner Trustee, the Indenture Trustee, the
Subordination Agent, the Pass Through Trustee, each Liquidity Provider and the
Underwriters (other than those fees, expenses and disbursements payable by the
Underwriters pursuant to the Underwriting Agreement); (iii) the fees and
expenses of Daugherty, Fowler & Peregrin; (iv) any initial fees and expenses
of the Pass Through Trustee and each Liquidity Provider and the fees and
expenses of the Owner Trustee, the Subordination Agent and the Indenture
Trustee; (v) any compensation, commissions and discounts payable to the
Underwriters pursuant to the Underwriting Agreement; (vi) the fees, if any,
incurred in printing the Pass Through Certificates; (vii) the fees and
expenses incurred in connection with printing any amendment to the
Registration Statement on Form S-3 bearing Registration No. 333-07691,
printing any Preliminary Prospectus or Prospectus (as such terms are defined
in the Underwriting Agreement) for the offering of the Pass Through
Certificates; (viii) the fees and expenses of Arthur Andersen LLP; (ix) the
fees and expenses of Moody's and S&P; (x) the fees and expenses (including
computer time-sharing charges) of First Chicago Leasing Corporation; (xi) the
reasonable out-of-pocket expenses of the Owner Participant, including, without
limitation, any amounts paid in connection with any appraisal report prepared
on behalf of the Owner Participant; (xii) reimbursement to the Owner
Participant, the Owner Participant Guarantor, the Owner Trustee, the Indenture
Trustee, the Subordination Agent, each Liquidity Provider and the Pass Through
Trustee for any and all fees, expenses and disbursements of the character
referred to above or otherwise incurred in connection with the negotiation,
preparation, execution and delivery, filing and recording of the Operative
Agreements and the documents contemplated thereby, including, without
limitation, travel expenses and disbursements which shall have been paid by
such party; (xiii) printing and duplicating expenses and all fees, taxes and
other charges payable in connection with the recording or filing on or
before the Delivery Date of the instruments described in this Agreement;
(xiv) initial fees, initial expenses, initial disbursements and the initial
costs of distributing the Certificates (but not the continuing fees,
expenses, disbursements and costs of distribution) of SSB, as lessor under
the Lease and as Owner Trustee under the Trust Agreement and with respect
to the administration of the Lease and the Lessor's Estate, of the
Indenture Trustee as trustee under the Indenture with respect to the
administration of the Trust Indenture Estate and of the Subordination Agent
acting under the Intercreditor Agreement; and (xv) any other amounts
approved by the Lessee and the Owner Participant. The fees and expenses
described in clauses (ii) through (x) of this paragraph shall be allocable
to the Owner Participant under this Agreement (1) to the extent incurred
specifically with respect to the Owner Participant, and (2) to the extent
such fees and expenses are incurred but are not specifically attributable
to the Owner Participant, in the proportion that the principal amount of
the Certificates bears to the total amount of the Pass Through
Certificates.
The Owner Participant, the Owner Trustee and the Lessee acknowledge
that the percentages for Basic Rent, Stipulated Loss Value and Termination
Value set forth in the Lease have been prepared assuming the aggregate amount
payable by the Owner Participant pursuant to the preceding paragraph is 1.15%
of the Purchase Price (the "Estimated Expense Amount"). Transaction Costs
shall be paid in the manner provided in Section 3.04 hereof.
(b) Continuing Expenses. The continuing fees, expenses and
disbursements (including reasonable counsel fees and expenses) of the entity
acting as Owner Trustee, as lessor under the Lease and as Owner Trustee under
the Trust Agreement with respect to the administration of the Lease and the
Lessor's Estate and the continuing fees, expenses and disbursements (including
reasonable counsel fees and expenses and initial fees relating to the
establishment of any replacement trustee) of the Indenture Trustee, as trustee
under the Indenture with respect to the administration of the Trust Indenture
Estate, the continuing fees, expenses and disbursements (including reasonable
counsel fees and initial fees relating to the establishment of a replacement
trustee) of the Pass Through Trustee and the Subordination Agent and the
continuing fees, expenses and disbursements (including reasonable counsel fees
and initial fees relating to the establishment of a replacement liquidity
provider) of the Liquidity Providers under each Liquidity Facility shall be
paid as Supplemental Rent by the Lessee, including without limitation any
amounts payable to the Indenture Trustee or on account of requests by the
Indenture Trustee for indemnification under Article XI of the Indenture.
(c) Amendments, Supplements and Appraisal. Without limitation of
the foregoing, the Lessee agrees:
(i) to pay as Supplemental Rent to the Owner Trustee, the Owner
Participant, Owner Participant Guaranty, the Indenture Trustee, the
Subordination Agent, the Liquidity Providers and the Pass Through Trustee
all costs and expenses (including reasonable legal fees and expenses)
incurred by any of them in connection with (a) any Default or Event of
Default and any enforcement or collection proceedings resulting therefrom,
or (b) the enforcement of the obligations of the Lessee hereunder or under
the other Operative Agreements, including, without limitation, the entering
into or giving or withholding of any amendments or supplements or waivers
or consents (whether or not consummated), including without limitation, any
amendment, supplement, waiver or consent resulting from any work-out,
restructuring or similar proceeding relating to the performance or
nonperformance by the Lessee of its obligations under the Operative
Agreements or (c) any amendment, supplement, waiver or consent (whether or
not entered into) under this Agreement, the Lease, the Indenture, the
Certificates, the Tax Indemnity Agreement, the Purchase Agreement
Assignment or any other Operative Agreement or document or instrument
delivered pursuant to any of them, which amendment, supplement, waiver or
consent is required by any provision of any Operative Agreement (including
any adjustment pursuant to Section 3.04 of the Lease) or is requested by
the Lessee or necessitated by the action or inaction of the Lessee;
provided, however, that the Lessee shall not be responsible for fees and
expenses incurred in connection with the offer, sale or other transfer
(whether pursuant to Section 7.03(d) hereof or otherwise) by the Owner
Participant after the Certificate Closing Date of any interest in the
Aircraft, the Lessor's Estate, the Beneficial Interest or the Trust
Agreement or any similar interest (and the Owner Participant shall be
responsible for all such fees and expenses), unless such offer, sale or
transfer shall occur (A) after the Lease has been declared in default or if
the transfer is pursuant to the exercise of remedies under Article 17 of
the Lease or (B) in connection with the termination of the Lease or action
or direction of the Lessee pursuant to Section 4.02, Article 10 or Article
11 of the Lease; and
(ii) to pay the fees, costs and expenses of all appraisers involved
in an independent appraisal of the Aircraft to the extent required under
Section 4.03 of the Lease.
ARTICLE 11
SUCCESSOR OWNER TRUSTEE
Section 11.01. Appointment of Successor Owner Trustee. (a)
Resignation and Removal. The Owner Trustee or any successor Owner Trustee may
resign or may be removed by the Owner Participant, and a successor Owner
Trustee may be appointed and a Person may become Owner Trustee under the Trust
Agreement only in accordance with the provisions of Section 3.11 of the Trust
Agreement and the provisions of paragraphs (b) and (c) of this Section 11.01.
(b) Conditions to Appointment. The appointment in any manner of a
successor Owner Trustee pursuant to Section 3.11 of the Trust Agreement shall
be subject to the following conditions:
(i) Such successor Owner Trustee shall be a Citizen of the United
States;
(ii) Such successor Owner Trustee shall be a bank or a trust company
having combined capital, surplus and undivided profits of at least
$100,000,000 or a bank or trust company fully guaranteed by a direct or
indirect parent thereof having a combined capital, surplus and undivided
profits of at least $100,000,000;
(iii) Such appointment shall not violate any provisions of the
Transportation Code or any applicable rule or regulation of the applicable
regulatory agency or body of any other jurisdiction in which the Aircraft
may then be registered or create a relationship which would be in violation
of the Transportation Code or any applicable rule or regulation of the
applicable regulatory agency or body of any other jurisdiction in which the
Aircraft may then be registered;
(iv) Such successor Owner Trustee shall enter into an agreement
or agreements, in form and substance reasonably satisfactory to the
Lessee, the Owner Participant, the Pass Through Trustee and the
Indenture Trustee whereby such successor Owner Trustee confirms that it
shall be deemed a party to this Agreement, the Trust Agreement, the
Lease, the Lease Supplement, the Purchase Agreement Assignment, the
Engine Warranty Assignment, the Indenture, the Indenture Supplement and
any other Operative Agreement to which the Owner Trustee is a party and
agrees to be bound by all the terms of such documents applicable to the
Owner Trustee and makes the representations and warranties contained in
Section 7.04 hereof (except that it may be duly incorporated, validly
existing and in good standing under the laws of the United States of
America or any State thereof); and
(v) All filings of Uniform Commercial Code financing and continuation
statements, filings in accordance with the Transportation Code and
amendments thereto shall be made and all further actions taken in
connection with such appointment as may be necessary in connection with
maintaining the validity, perfection and priority of the Lien of the
Indenture and the valid and continued registration of the Aircraft in
accordance with the Transportation Code.
(c) Appointment. For so long as the Aircraft remains registered
under the Transportation Code, the Owner Participant agrees to appoint
promptly a successor Owner Trustee meeting the requirements of Section
11.01(b) hereof in the event the Owner Participant has knowledge that the
Owner Trustee at any time shall not be a Citizen of the United States.
ARTICLE 12
LIABILITIES AND INTERESTS OF THE OWNER PARTICIPANT AND HOLDERS
Section 12.01. Liabilities of the Owner Participant. The Owner
Participant shall have no obligation or duty to the Lessee or to any Holder
with respect to the transactions contemplated by this Agreement, except those
obligations or duties expressly set forth in this Agreement, the Indenture,
the Trust Agreement, the Tax Indemnity Agreement, AVSA's FAA Bill of Sale,
AVSA's Warranty Bill of Sale, the Lease or any other Operative Agreement to
which the Owner Participant is a party and the Owner Participant shall not be
liable for the performance by any party hereto of such other party's
obligations or duties hereunder. Under no circumstances shall the Owner
Participant as such be liable to the Lessee, nor shall the Owner
Participant be liable to any Holder, for any action or inaction on the part
of the Owner Trustee or the Indenture Trustee in connection with this
Agreement, the Indenture, the Lease, the Trust Agreement, the Purchase
Agreement Assignment, the Engine Warranty Assignment, any other Operative
Agreement, the ownership of the Aircraft, the administration of the
Lessor's Estate or the Trust Indenture Estate or otherwise, whether or not
such action or inaction is caused by the willful misconduct or gross
negligence of the Owner Trustee or the Indenture Trustee.
Section 12.02. Interest of Holders of Certificates. A Holder of a
Certificate shall have no further interest in, or other right with respect to,
the Trust Indenture Estate when and if the principal and interest on all
Certificates held by such Holder and all other sums payable to such Holder
under this Agreement, under the Indenture and under such Certificates shall
have been paid in full.
ARTICLE 13
OTHER DOCUMENTS
Section 13.01. Consent of Lessee to Other Documents. The Lessee
hereby consents in all respects to the execution and delivery of the
Indenture, the Intercreditor Agreement and the Liquidity Facilities and to all
of the terms of said documents, and the Lessee acknowledges receipt of an
executed counterpart of such documents; it being agreed that such consent
shall not be construed to require the Lessee's consent to any future
supplement to, or amendment, waiver or modification of the terms of the
Indenture, the Intercreditor Agreement or the Liquidity Facilities or the
Certificates, except that prior to the occurrence and continuance of an Event
of Default, no section of the Indenture, the Trust Agreement, the
Intercreditor Agreement or the Liquidity Facilities shall be amended or
modified in any manner materially adverse to the Lessee without its consent.
Section 13.02. Further Assurances. The Lessee hereby confirms to
the Owner Participant its covenants set forth in and obligations under the
Lease. The Lessee agrees that, except as otherwise provided in the
Indenture, the Owner Trustee may not enter into any amendment, modification
or supplement of, or give any waiver or consent with respect to, or approve
any matter or document as being satisfactory under the Lease without the
prior consent of the Indenture Trustee and the Owner Participant and that,
except as otherwise provided in the Indenture, upon an Indenture Event of
Default, the Indenture Trustee may act as the Lessor under the Lease to the
exclusion of the Owner Trustee. The Lessee further agrees to deliver to
the Indenture Trustee and the Owner Participant a copy of each notice,
statement, request, report or other communication given or required to be
given to the Owner Trustee under the Lease.
Section 13.03. Pass Through Trustee's and Subordination Agent's
Acknowledgment. The Pass Through Trustee and the Subordination Agent hereby
acknowledge and agree to be bound by all of the terms and conditions of the
Indenture, including without limitation, Section 8.01 thereof regarding the
rights of the Owner Participant to purchase the Certificates under
circumstances specified therein.
ARTICLE 14
NOTICES
Section 14.01. Notices. All notices, demands, declarations and
other communications required by this Agreement shall be in writing and
shall be deemed received (a) if given by telecopier, when transmitted and
the appropriate telephonic confirmation received if transmitted on a
Business Day and during normal business hours of the recipient, and
otherwise on the next Business Day following transmission, (b) if given by
certified mail, return receipt requested, postage prepaid five Business
Days after being deposited in the United States mail and (c) if given by
FedEx service (or, if a Default or Event of Default shall have occurred and
be continuing, by other comparable courier service), when received or
personally delivered, addressed:
(a) If to the Lessee, to its office at 2007 Corporate Avenue,
Memphis, Tennessee 38132, Attention: Vice President and Treasurer with a
copy to Senior Vice President and General Counsel at 1980 Nonconnah
Boulevard, Memphis, Tennessee 38132, telephone (901) 395-3388, facsimile
(901) 395-4758; or to such other address as the Lessee shall from time to
time designate in writing to the Lessor, the Indenture Trustee and the
Owner Participant;
(b) If to the Lessor or the Owner Trustee, to it c/o State Street
Bank and Trust Company, Two International Place, 4th Floor, Boston,
Massachusetts 02110, Attention: Corporate Trust Department, telephone (617)
664-5526, facsimile (617) 664-5371; or to such other address as the Lessor
shall from time to time designate in writing to the Lessee and the
Indenture Trustee, with a copy to the Owner Participant;
(c) If to the Owner Participant, to its office at 200 First Stamford
Place, Stamford, Connecticut 06902, Attention: Vice President Leasing with
a copy to Director, Portfolio Administration, telephone (914) 335-5000,
facsimile 914 335-8301, or to such other address as the Owner Participant
may from time to time designate in writing to the Lessee and the Indenture
Trustee;
(d) If to the Indenture Trustee, the Subordination Agent or the Pass
Through Trustee, to its office at 79 South Main Street, Salt Lake City,
Utah 84111, Attention: Corporate Trust Department, telephone (801)
246-5053, facsimile (801) 246-5630; or to such other address as the
Indenture Trustee or the Pass Through Trustee, as the case may be, shall
from time to time designate in writing to the Lessor, the Lessee and the
Owner Participant; and
(e) If to a Liquidity Provider, to its office at 125 West 55th
Street, New York, New York 10019, Attention: General Manager, telephone
(212) 541-0600, facsimile (212) 956-5580; or to such other address as a
Liquidity Provider shall from time to time designate in writing to the
Lessor, the Lessee and the Indenture Trustee.
ARTICLE 15
REFINANCING/REOPTIMIZATION
Section 15.01. Refinancing. (a) Subject to the terms and
conditions of this Section 15.01, the Lessee may request the Owner Participant
to participate in up to two refinancings in whole but not in part, of the
Certificates prior to the end of the Basic Term (a "Refinancing"). Such
Refinancings may be placed in either the private or public markets and shall
be denominated in United States dollars (or in any other foreign currency so
long as the Owner Participant is satisfied there is no foreign currency risk
to it), and shall be on terms that do not materially adversely affect the
Owner Participant. The Owner Participant agrees to negotiate promptly in good
faith to conclude an agreement with the Lessee as to the terms of any such
Refinancing transaction (including the terms of any debt to be issued in
connection with such refinancing and the documentation to be executed in
connection therewith). Without the prior written consent of the Owner
Participant, the prospectus and other offering materials relating to any
Refinancing in the form of a public offering shall not identify the Owner
Participant and shall not include any financial statements of the Owner
Participant or any Affiliate thereof. In connection with any such Refinancing
in the form of a public offering, the Lessee shall indemnify the Owner
Participant in a manner satisfactory to it for any liabilities under federal,
state or foreign securities laws resulting from such offering. The aggregate
principal amount of the new Certificates issued in connection with each
Refinancing shall be the same as the aggregate principal amount outstanding on
the Certificates being refinanced.
(b) Notwithstanding anything herein to the contrary, no Refinancing
will be permitted unless the Owner Participant and the Indenture Trustee shall
have received at least 15 days' prior written notice of the scheduled closing
date of such Refinancing and the Owner Participant shall have been provided
such longer period as it shall have required for a reasonable opportunity to
review the relevant documentation and the Owner Participant shall have
determined in good faith that neither it nor the Owner Trustee shall suffer
any loss or expense or bear any increased risk as a result of such Refinancing
(including, without limitation, any risk with respect to taxes or other
adverse consequences to the Owner Participant including the application of
Revenue Procedures 75-21 and 75-28 and Section 467 of the Code) for which it
has not been or will not have been indemnified by the Lessee in a manner
reasonably satisfactory to the Owner Participant, nor shall its rights against
all other parties taken as a whole be adversely affected compared to such
rights in effect under the Operative Agreements prior to such proposed
Refinancing.
Prior to the consummation of any Refinancing pursuant to this Section
15.01, the Owner Participant and the Lessee shall agree upon a schedule
setting forth each installment of Basic Rent and setting forth Stipulated Loss
Values and Termination Values payable pursuant to the Lease as a result of the
Refinancing in accordance with Section 3.04 of the Lease, and thereafter the
amounts set forth in such schedule shall become the amounts payable under the
Lease. Upon the consummation of the Refinancing, the evidence of indebtedness
issued pursuant to the Refinancing shall be considered "Certificates" for
purposes of this Agreement, the Lease and the Indenture.
(c) Notwithstanding the foregoing, the Owner Participant shall have
no obligation to proceed with any Refinancing transaction as contemplated by
this Section 15.01 unless the Lessee indemnifies the Owner Trustee and the
Owner Participant by agreement in form and substance satisfactory to each of
them, for any liability, obligation (other than the obligation to pay
principal and interest in respect of the refinanced indebtedness), cost or
expense (including, without limitation, reasonable attorneys' fees and
Make-Whole Premium or other amounts due under the Indenture), including any
adverse tax consequences or impact, related to or arising out of any such
Refinancing transaction.
(d) Without the prior written consent of the Owner Participant,
which consent may be withheld in its sole discretion, no such refinancing
shall (1) cause the aggregate principal amount of the indebtedness to be
substituted for the Certificates to exceed the aggregate principal amount
of the then outstanding Certificates, (2) cause the weighted average life
of such indebtedness to be different by more than 6 months than the
remaining weighted average life of the then outstanding Certificates, or
(3) cause the date of maturity of such indebtedness to be later than the
date of maturity of the Certificates being refinanced.
(e) Each party agrees to take or cause to be taken all requested
action, including, without limitation, the execution and delivery of any
documents and instruments, including, without limitation, amendments or
supplements to the Lease, which may be reasonably necessary or desirable to
effect such Refinancing, including, in the case of the Owner Participant,
direction to the Owner Trustee by the Owner Participant to prepay the
Certificates then outstanding; provided, however, that such Refinancing shall
be subject to the satisfaction of each of the following conditions:
(i) Payment of principal, accrued interest, Make-Whole Premium
and breakage costs, if any, and all other sums due and owing on the
Certificates payable under the Indenture;
(ii) Payment in full of all other amounts then due and owing by the
Lessee under this Agreement, the Indenture, the Lease, the Trust Agreement,
and the Certificates then outstanding shall have been made by the Lessee;
(iii) Such party shall have received such opinions of counsel
(including, without limitation, an opinion received by the Owner
Participant from independent tax counsel reasonably satisfactory to the
Lessee that such Refinancing shall not result in any adverse tax
consequences to such Owner Participant, unless the Lessee shall have agreed
to provide an indemnity in respect thereof reasonably satisfactory in form
and substance to the Owner Participant), certificates and other documents
as it may reasonably request, each in form and substance reasonably
satisfactory to such party;
(iv) All authorizations, approvals and consents which in the
reasonable judgment of the Owner Participant are necessary for such
Refinancing shall have been obtained;
(v) The Lessee shall have provided or agreed to provide to the
Owner Participant, as Supplemental Rent under the Lease, sufficient
funds to pay any breakage costs, Make-Whole Premium and any other
amounts due under the Indenture;
(vi) The satisfaction or waiver by each other party to this
Agreement of the conditions set forth in this Section 15.01 to such
party's obligations under this Section 15.01;
(vii) No Payment Default, Bankruptcy Default or Event of Default
shall have occurred and be continuing or would occur immediately after
giving effect to such Refinancing;
(viii) In the event the Lessee shall not prohibit the purchase of
the Refinancing loan certificates by, or with the assets of, an employee
benefit plan, as defined in Section 3(3) of ERISA, which is subject to
Title I of ERISA or a plan or individual retirement account, which is
subject to Section 4975(c) of the Code, (individually or collectively, an
"ERISA Plan"), the Lessee will permit the placement of the Refinancing loan
certificates with an ERISA Plan only if either (A) if such placement is in
the form of pass through certificates, the sole underwriter or the manager
or co-manager of the underwriting syndicate or the selling or placement
agent of the Refinancing loan certificates represents to the Lessee that it
has a prohibited transaction exemption from the U.S. Department of Labor
with respect to pass through certificates (such as Prohibited Transaction
Exemption 89-88 or any other comparable exemption) or (B) purchasers of the
Refinancing loan certificates provide a representation (which may be in the
form of a deemed representation) regarding their source of funds used in
acquiring the Refinancing loan certificates and, if such purchasers
represent that they are using funds of an ERISA Plan in acquiring the
Refinancing loan certificates, such purchasers further represent that (1)
either they are relying on a prohibited transaction exemption from the U.S.
Department of Labor with respect to their purchase and holding of the
Refinancing loan certificates and they provide representations regarding
the satisfaction of the relevant conditions of such an exemption or (2)
their purchase and holding of the Refinancing loan certificates will not
constitute a non-exempt prohibited transaction under Section 406 of
ERISA or Section 4975 of the Code. The reliance on any such exemption
will not be conditional on the Owner Participant's representation
concerning its party in interest or other status with respect to ERISA
Plans. If neither exemption referred to in clause (A) or (B) of this
paragraph (viii) is valid or applicable in any respect to the purchase
and holding of the Refinancing loan certificates, or if the
representation in clause (B) of this paragraph (viii) that such purchase
and holding will not constitute a non-exempt prohibited transaction is
not correct, whichever is applicable, then the Lessee shall indemnify
the Owner Participant pursuant to, and to the extent provided for, under
Sections 8 and 9 hereof for Taxes and Expenses resulting from any
"prohibited transaction", within the meaning of Section 406 of ERISA or
Section 4975(c)(1) of the Code, occurring with respect to the placement
of the Refinancing loan certificates with, or the holding of the
Refinancing loan certificates by, any ERISA Plan with respect to which
the Owner Participant is a party in interest, within the meaning of
Section 3(14) of ERISA, or a disqualified person, within the meaning of
Section 4975 of the Code, provided, however, that if the Lessee shall
fail to obtain either of the representations set forth in clause (A) or
(B) of this paragraph (viii), such indemnity shall not be subject to the
exceptions set forth under Sections 8.01(b)(xii)(A) and (B) and
9.01(b)(ix)(A) and (B) hereof; and
(ix) The Lessee shall pay all costs and expenses (including legal
fees) incurred in connection with any proposed or actually consummated
Refinancing.
Section 15.02. Reoptimization. (a) If a Change in Tax Rate occurs
prior to the end of the Basic Term, then, subject to the terms and conditions
of this Section 15.02 and Section 3.04 of the Lease, the Owner Participant
may, upon 30 days' prior notice to the Lessee, the Indenture Trustee, the
Owner Trustee and the Holders, elect to modify the schedule of payments of
principal of the certificates issued ("Refinancing Certificates") in
connection with any Refinancing using private debt (not including debt issued
pursuant to an exemption from registration under the Securities Act relying on
Rule 144A promulgated thereunder but otherwise marketed in a manner
substantially similar to securities registered under the Securities Act, and
not including debt issued in connection with any offering of securities
registered under the Securities Act) due on each remaining Rent Payment Date
on or commencing on the Rent Payment Date next succeeding the date mutually
agreed to by the Owner Participant, the Lessee and the Indenture Trustee on
which the Owner Participant shall make such modification (the "Reoptimization
Date"). Promptly after making such modification, the Owner Participant shall
furnish each party hereto written notice of the amounts so recalculated.
(b) Adjustments to Refinancing Certificates. On the Reoptimization
Date, subject to the satisfaction on or before the Reoptimization Date of the
conditions set forth in Section 15.02(c), the Owner Trustee will issue and
deliver and the Indenture Trustee will authenticate, and each holder of a
Refinancing Certificate will accept delivery of, a new Refinancing Certificate
or Refinancing Certificates (in replacement of each Refinancing Certificate
then held by such holder, which Refinancing Certificates shall be surrendered
to the Indenture Trustee for cancellation) containing such changed principal
installments (expressed as a percentage of the original principal amount of
such Refinancing Certificate) as shall have been recalculated by the Owner
Participant, but in the same principal amount as, and containing terms
identical to, except as otherwise contemplated by Section 15.02(d) hereof, the
Refinancing Certificates originally issued in connection with the Operative
Agreements.
(c) Conditions to the Obligations of the Holders of the Refinancing
Certificates on the Reoptimization Date. The obligation of each holder of a
Refinancing Certificate to accept delivery of a new Refinancing Certificate on
the Reoptimization Date, and to surrender on such Reoptimization Date any
Refinancing Certificate then held by it, is subject to the following
conditions precedent having been satisfied on or before the Reoptimization
Date:
(i) the requirements of Section 15.02(d) hereof shall have been
satisfied;
(ii) the following documents, in form and substance satisfactory to
such Holder, shall have been duly authorized, executed and delivered by the
party or parties thereto and shall be in full force and effect: (A) if the
payments of Basic Rent, Stipulated Loss Values and Termination Values with
respect to the Term have been changed, an amendment to the Lease, dated the
Reoptimization Date, (B) an amendment to the Indenture setting forth any
changed repayment schedule to the Refinancing Certificates, dated the
Reoptimization Date and duly filed (or in the process of being so duly
filed) for recordation with the Aeronautics Authority and (C) replacement
Refinancing Certificates; and
(iii) in connection with any Reoptimization the Owner Participant
shall pay or agree to pay all reasonable costs and expenses incurred by the
Lessee, the Owner Trustee, the Indenture Trustee and each Holder of a
Refinancing Certificate (including, without limitation, reasonable legal
fees and expenses) in connection with any such reoptimization.
(d) Payment Schedules. Except as otherwise provided in this
Section 15.02 as long as the Refinancing Certificates remain outstanding,
the payment schedules for the Refinancing Certificates shall not be
modified.
ARTICLE 16
[RESERVED]
ARTICLE 17
MISCELLANEOUS
Section 17.01. Owner for Federal Tax Purposes. It is hereby agreed
between the Owner Participant and the Lessee (but the Lessee makes no
representation to such effect) that it is the intent of the parties for
Federal, state, local and foreign income tax purposes that the Owner
Participant will be treated as the owner of the Aircraft and the Lessee will
be treated as the lessee of the Aircraft.
Section 17.02. Collateral Account. (a) The Indenture Trustee shall
notify the Owner Trustee and the Lessee of any losses incurred on the
Specified Investments in the Collateral Account promptly upon the realization
thereof, as well as any fees, commissions and other costs, Taxes (other than
income taxes) and expenses, if any, incurred by the Indenture Trustee in
connection with its administration of the Collateral Account (collectively,
"Losses"). Promptly upon receipt of such notification but, in any event, no
later than the earlier of the Delivery Date (or, if later, the last day of any
investment period referred to in Section 2.14(b) of the Indenture during which
the Delivery Date occurs) and the 15th day after the Cut-Off Date, the Lessee
shall pay to the Indenture Trustee, on behalf of the Owner Trustee, for
deposit into the Collateral Account, an amount equal to such Losses (net of
any investment earnings).
(b) The Lessee shall pay to the Indenture Trustee, on behalf of the
Owner Trustee (A) on each Payment Date prior to the Delivery Date an amount
equal to the aggregate amount of interest accrued on the Certificates from
(and including) the Certificate Closing Date or previous Payment Date, as the
case may be, to, but excluding, such Payment Date and (B) on the first Payment
Date subsequent to the Delivery Date, interest accrued on the Certificates
from and including the last Payment Date (or, if none, the Certificate Closing
Date), to, but excluding, the Delivery Date. In addition, the Lessee will pay
to the Indenture Trustee on behalf of the Owner Trustee all amounts owed by
the Owner Trustee pursuant to clause (b) of the last paragraph of Section 2.04
of the Indenture.
(c) If the Aircraft has not been purchased by the Owner Trustee
on the Delivery Date, the Lessee agrees to pay to the Indenture Trustee, on
behalf of the Owner Trustee, on the 15th day following the Cut-Off Date the
excess, if any, of the amounts payable under Section 6.02(b)(1) of the
Indenture over the amounts released from the Collateral Account under
Section 2.16 of the Indenture.
(d) All amounts payable by the Lessee pursuant to this Section 17.02
shall be paid to the Indenture Trustee at its principal office at 79 South
Main Street, Salt Lake City, Utah, 84111, Attention: Corporate Trust
Department, or as the Indenture Trustee may otherwise direct within the United
States, by wire transfer of immediately available funds in U.S. Dollars no
later than 10:30 a.m., New York City time, on the due date of such payment.
Section 17.03. Counterparts. This Agreement may be executed by the
parties in separate counterparts, each of which when so executed and delivered
shall be an original, but all such counterparts shall together constitute but
one and the same instrument.
Section 17.04. No Oral Modifications. Neither this Agreement nor
any of its terms may be terminated, amended, supplemented, waived or modified
orally, but only by an instrument in writing signed by the party against which
the enforcement of the termination, amendment, supplement, waiver or
modification is sought. No such written termination, amendment, supplement,
waiver or modification shall be effective unless a signed copy shall have been
delivered to and executed by the Owner Trustee and the Indenture Trustee. A
copy of each such termination, amendment, supplement, waiver or modification
shall also be delivered to each other party to this Agreement.
The consent of each of the Pass Through Trustee and the Subordination
Agent, in its capacity as a party to this Agreement and not as a Holder, shall
not be required to modify, amend or supplement this Agreement or to give any
consent, waiver, authorization or approval with respect to this Agreement
under the circumstances in which the consent of the Indenture Trustee would
not be required for such modification, amendment, supplement, consent, waiver
or approval in accordance with Section 8.01(b) of the Indenture, provided that
the Pass Through Trustee shall be entitled to receive an Opinion of Counsel
(as defined in the Pass Through Agreement) necessary, in its sole discretion,
to establish that the Indenture Trustee's consent would not be required under
such circumstances.
Section 17.05. Captions. The table of contents preceding this
Agreement and the headings of the various Articles and Sections of this
Agreement are for convenience of reference only and shall not modify, define,
expand or limit any of the terms or provisions of this Agreement.
Section 17.06. Successors and Assigns. The terms of this Agreement
shall be binding upon, and shall inure to the benefit of, the Lessee and its
successors and permitted assigns, the Subordination Agent and its successors
and permitted assigns, including without limitation each Holder of a
Certificate, the Owner Participant and its successors and permitted assigns,
the Owner Trustee and its successors as Owner Trustee (and any additional
owner trustee appointed) under the Trust Agreement, the Indenture Trustee and
its successors as Indenture Trustee (and any additional indenture trustee
appointed) under the Indenture and the Pass Through Trustee and its successors
as Pass Through Trustee (and any additional pass through trustee appointed).
Section 17.07. Concerning the Owner Trustee, Indenture Trustee and
the Pass Through Trustee. Each of SSB and FSB is entering into this Agreement
solely in their respective capacities (except to the extent otherwise
expressly indicated), in the case of SSB, not in its individual capacity but
solely as Owner Trustee under the Trust Agreement, in the case of FSB, not in
its individual capacity but solely as Indenture Trustee under the Indenture
and as Pass Through Trustee under the Pass Through Agreement, and except as
otherwise expressly provided in this Agreement or in the Lease, the Indenture,
the Pass Through Agreement or the Trust Agreement, neither SSB, nor FSB,
shall be personally liable for or on account of its statements,
representations, warranties, covenants or obligations under this Agreement;
provided, however, that each of SSB and FSB accepts the benefits running to it
under this Agreement, and each agrees that (except as otherwise expressly
provided in this Agreement or any other Operative Agreement to which it is a
party) it shall be liable in its individual capacity for (a) its own gross
negligence or willful misconduct (whether in its capacity as trustee or in its
individual capacity), (b) any breach of representations and warranties or any
breach of covenants made in its individual capacity pursuant to or in
connection with this Agreement or the other Operative Agreements to which
it is a party, (c) any breach, in the case of the Owner Trustee, of its
covenants contained in Sections 3.05 and 3.08 of the Indenture, (d) the
failure to use ordinary care in receiving, handling and disbursing funds,
(e) in the case of the Owner Trustee, Lessor's Liens attributable to it in
its individual capacity, (f) in the case of the Indenture Trustee,
Indenture Trustee's Liens and (g) taxes, fees or other charges on, or based
on, or measured by, any fees, commissions or compensation received by it in
connection with the transactions contemplated by the Operative Agreements.
Section 17.08. Severability. Any provision of this Agreement which
is prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions, and any such
prohibition or unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction.
Section 17.09. Public Release of Information. Subject to applicable
legal requirements (including, without limitation, securities laws
requirements, other regulatory requirements and other legally compelled
disclosures), so long as there shall not have occurred an Event of Default or
Indenture Event of Default, each party to this Agreement shall in each
instance obtain the prior written approval of each other party to this
Agreement concerning the exact text and timing of news releases, articles and
other information releases to the public media concerning any Operative
Agreements.
Section 17.10. Certain Limitations on Reorganization. The Indenture
Trustee and the Pass Through Trustee agree that, if (i) the Owner Trustee
becomes or all or any part of the Lessor's Estate or the trust created by the
Trust Agreement becomes the property of, a debtor subject to the
reorganization provisions of the Bankruptcy Code or any other applicable
bankruptcy or insolvency statutes, (ii) pursuant to any such reorganization
provisions, the Owner Participant is held to have recourse liability to the
debtor, the Owner Trustee or the trustee of the debtor directly or indirectly
on account of any amount payable as Make-Whole Premium, principal or interest
on the Certificates, or any other amount payable on any Certificate that is
provided in the Operative Agreements to be nonrecourse to the Owner
Participant and (iii) the Indenture Trustee actually receives any Recourse
Amount which reflects any payment by the Owner Participant on account of (ii)
above, then the Indenture Trustee, as the case may be, shall promptly refund
to the Owner Participant such Recourse Amount. For purposes of this Section
17.10, "Recourse Amount" means the amount by which the portion of such payment
by the Owner Participant on account of clause (ii) above received by the
Indenture Trustee exceeds the amount which would have been received by the
Indenture Trustee if the Owner Participant had not become subject to the
recourse liability referred to in (ii) above. Nothing contained in this
Section shall prevent the Indenture Trustee from enforcing any individual
obligation (and retaining the proceeds thereof) of the Owner Participant under
this Agreement or any other Operative Agreement to the extent herein or
therein provided, for which the Owner Participant has expressly agreed by the
terms of this Agreement to accept individual responsibility.
Section 17.11. GOVERNING LAW. THIS AGREEMENT SHALL IN ALL RESPECTS
BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK, INCLUDING ALL MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE, WITHOUT
GIVING EFFECT TO PRINCIPLES OF CONFLICTS OF LAWS AND IS BEING DELIVERED IN NEW
YORK.
Section 17.12. Section 1110 Compliance. The parties hereto agree
that the transactions contemplated by the Operative Agreements are expressly
intended to be, shall be and should be construed so as to be entitled to the
benefits and protection of Section 1110 of the Bankruptcy Code.
Section 17.13. Reliance of Liquidity Providers. Each of the parties
hereto agrees and acknowledges that each Liquidity Provider shall be a third
party beneficiary of each of the representations and warranties made herein by
such party, and that each Liquidity Provider may rely on such representations
and warranties to the same extent as if such representations and warranties
were made to such Liquidity Provider directly. The terms of this Agreement
shall inure to the benefit of each Liquidity Provider, their respective
successors and permitted assigns.
ARTICLE 18
CONFIDENTIALITY
Section 18.01. Confidentiality. Each party hereto agrees (on behalf
of itself and each of its Affiliates, agents, directors, officers, employees
and representatives) to use reasonable precautions to keep confidential, in
accordance with its customary procedures for handling confidential information
of this nature, any non-public information supplied to it pursuant to this
Agreement which is identified by the Person supplying the same as being
confidential at the time the same is delivered to such party, provided that
nothing herein shall limit the disclosure of any such information (i) to the
extent required by statute, rule, regulation or judicial process, (ii) to
counsel for any of the parties hereto, (iii) to bank examiners or similar
regulatory authorities, auditors or accountants, (iv) in connection with any
litigation to which any one or more of the parties hereto is a party relating
to the transactions contemplated hereby or by any of the Operative Agreements,
(v) to an Affiliate of the parties hereto, (vi) to any assignee or participant
(or prospective assignee or participant) or other transferee so long as such
assignee or participant (or prospective assignee or participant) or other
transferee first executes and delivers to the respective party making such
assignment or participation an agreement in writing to be bound by the
provisions of this Section 18.01 or (vii) in the case of the Owner Participant
or the Owner Trustee (in its individual or trust capacity) to the Owner
Trustee (in its individual or trust capacity) or to the Owner Participant, as
the case may be.
IN WITNESS WHEREOF, the parties have caused this Participation
Agreement to be executed by their respective, duly authorized officers and
this Participation Agreement shall be effective this 22nd day of May, 1997.
LESSEE:
FEDERAL EXPRESS CORPORATION
By:__________________________________________
Name: Robert D. Henning
Title: Assistant Treasurer and Managing
Director - Structured Finance
OWNER PARTICIPANT:
PMCC LEASING CORPORATION
By:__________________________________________
Name: Joan D. Woodroof
Title: Manager, Structured Finance
OWNER TRUSTEE:
STATE STREET BANK AND TRUST COMPANY OF
CONNECTICUT, NATIONAL ASSOCIATION,
not in its individual capacity,
except as otherwise expressly provided herein,
but solely as Owner Trustee
By:__________________________________________
Name: Paul D. Allen
Title: Vice President
INDENTURE TRUSTEE:
FIRST SECURITY BANK,
NATIONAL ASSOCIATION,
not in its individual capacity except as
otherwise expressly provided herein,
but solely as Indenture Trustee
By:__________________________________________
Name: Greg A. Hawley
Title: Vice President
PASS THROUGH TRUSTEE:
FIRST SECURITY BANK,
NATIONAL ASSOCIATION,
not in its individual capacity except as
otherwise expressly provided herein,
but solely as Pass Through Trustee
By:__________________________________________
Name: Greg A. Hawley
Title: Vice President
SUBORDINATION AGENT:
FIRST SECURITY BANK,
NATIONAL ASSOCIATION,
not in its individual capacity except as
otherwise expressly provided herein,
but solely as Subordination Agent
By:__________________________________________
Name: Greg A. Hawley
Title: Vice President
SCHEDULE I
CERTIFICATE INFORMATION
1. Federal Express Corporation 1997-1 Pass Through Trust Class A
Federal Express Corporation Trust No. N672FE
Interest Rate: 7.50%
Maturity: January 15, 2018
Principal Amount: $33,374,000
2. Federal Express Corporation 1997-1 Pass Through Trust Class B
Federal Express Corporation Trust No. N672FE
Interest Rate: 7.52%
Maturity: January 15, 2018
Principal Amount: $12,515,000
3. Federal Express Corporation 1997-1 Pass Through Trust Class C
Federal Express Corporation Trust No. N672FE
Interest Rate: 7.65%
Maturity: January 15, 2014
Principal Amount: $16,095,000
SCHEDULE II
DEFINITIONS
(FEDERAL EXPRESS CORPORATION TRUST NO. N672FE)
GENERAL PROVISIONS
The following terms shall have the following meanings for all
purposes of the Operative Agreements (other than the Pass Through Agreement,
the Series Supplements, the Intercreditor Agreement and the Liquidity
Facilities) referred to below, unless otherwise defined in an Operative
Agreement or the context thereof shall otherwise require. In the case of any
conflict between the provisions of this Schedule and the provisions of any
Operative Agreement, the provisions of such Operative Agreement shall control
the construction of such Operative Agreement.
Unless the context otherwise requires, (i) references to agreements
shall be deemed to mean and include such agreements as amended and
supplemented from time to time, and (ii) references to parties to agreements
shall be deemed to include the successors and permitted assigns of such
parties.
DEFINED TERMS:
Additional Insured. As defined in Article 13 of the Lease.
Aeronautics Authority. As appropriate, the Federal Aviation
Administration and/or the Administrator of the Federal Aviation
Administration, any successor to the former United States Civil Aeronautics
Board, or any Person, governmental department, bureau, commission or agency
located in the United States succeeding to the functions of any of the
foregoing.
Affidavits. The affidavits of citizenship of the Owner Trustee and
the Owner Participant.
Affiliate. With respect to any Person, any other Person directly or
indirectly controlling, controlled by or under common control with such
Person. For the purposes of this definition, "control" (including "controlled
by" and "under common control with") shall mean the power, directly or
indirectly, to direct or cause the direction of the management and policies of
such Person whether through the ownership of voting securities or by contract
or otherwise. In no event shall the Owner Trustee or the Lessor be deemed an
Affiliate of the Owner Participant.
After-Tax Basis. A basis such that any payment to be received by a
Person shall be supplemented by a further payment to such Person so that the
sum of the two payments, after deduction of all Taxes resulting from the
receipt or accrual of such payments, shall be equal to the payment to be
received. In the case of amounts payable to the Lessor, the Owner Participant,
or any corporate Affiliate of the Owner Participant, it shall be presumed that
such Person is at all times subject to Federal income tax at the maximum
marginal rate generally applicable to corporations from time to time and
actual state, local and foreign income taxes.
Air Carrier. Any U.S. Air Carrier and any "foreign air carrier" (as
defined in the Transportation Code) as to which there is in force a permit
granted under Section 41302 of the Transportation Code.
Airbus Guaranty. The Guaranty to be dated the Delivery Date executed
by the Manufacturer and guaranteeing AVSA's Warranty Bill of Sale.
Aircraft. The Airframe to be sold by AVSA to the Owner Trustee as
provided in the Participation Agreement and to be leased under the Lease (or
any permitted substitute airframe thereunder) together with two Engines
(whether either is an initial Engine or a Replacement Engine) whether or not
any of such initial or Replacement Engines may from time to time be installed
on such Airframe or may be installed on any other airframe or on any other
aircraft, including any aircraft substituted pursuant to Section 11.03 of the
Lease. Prior to delivery of the initial Lease Supplement, references in the
Operative Agreements (including Section 3.05 of the Participation Agreement)
to Aircraft shall mean the Airbus A300F4-605R airframe bearing FAA
Registration Number N672FE and Manufacturer's serial number 779, together with
two General Electric CF6-80C2-A5F engines.
Airframe. The Airbus A300F4-605R aircraft (excluding the Engines or
engines from time to time installed thereon) to be leased by the Lessor to the
Lessee pursuant to the Lease and the initial Lease Supplement and having the
United States FAA Registration Number initially and manufacturer's serial
number specified in the initial Lease Supplement, including (i) all Parts in
respect thereof and (ii) any Replacement Airframe which may be substituted
pursuant to Section 11.03 of the Lease.
Ancillary Agreement. Any written agreement of the Lessee to which the
Lessor is a party or to which the Lessor has consented in writing entered into
on or prior to the Delivery Date or any date thereafter in connection with the
transactions contemplated by the Operative Agreements, as such agreement may
be amended and supplemented from time to time with the consent of the Lessor
and delivered to the Owner Trustee, the Indenture Trustee, the Pass Through
Trustee, the Subordination Agent, each Liquidity Provider and the Owner
Participant.
Ancillary Agreement I. The Ancillary Agreement I (Federal Express
Corporation Trust No. N672FE), dated the Certificate Closing Date, among the
Lessee, the Owner Trustee, not in its individual capacity, but solely as Owner
Trustee, the Owner Participant and the Indenture Trustee not in its individual
capacity, but solely as Indenture Trustee, as originally executed or as
amended, modified or supplemented with the consent of all the parties thereto.
Ancillary Agreement II. The Ancillary Agreement II (Federal Express
Corporation Trust No. N672FE), dated the Certificate Closing Date, among the
Lessee, the Owner Trustee, not in its individual capacity, but solely as Owner
Trustee, the Owner Participant and the Indenture Trustee not in its individual
capacity, but solely as Indenture Trustee, as originally executed or as
amended, modified or supplemented with the consent of all the parties thereto.
Application. The application for registration of the Aircraft with
the FAA in the name of the Owner Trustee.
Appraisal. The report prepared by BK Associates, Inc. and to be
delivered to the Owner Participant (with an abbreviated report to the Lessee)
on the Delivery Date pursuant to Section 4.02(h) of the Participation
Agreement.
Assignment and Assumption Agreement. Any agreement delivered in
compliance with Section 7.03(d) of the Participation Agreement.
Average Life Date. For any Certificate, the date which follows the
prepayment date by a period equal to the Remaining Weighted Average Life of
such Certificate.
AVSA. AVSA S.A.R.L., a societe a responsabilite limitee, organized
and existing under the laws of France.
AVSA Consent and Agreement. The Consent and Agreement dated as of
May 1, 1997, executed by AVSA.
AVSA's FAA Bill of Sale. The bill of sale for the Airframe on AC
Form 8050-2, or such other form as may be approved by the Aeronautics
Authority, executed by AVSA in favor of the Owner Trustee and to be dated the
Delivery Date.
AVSA's Warranty Bill of Sale. The full warranty bill of sale
covering the Aircraft (and specifically referring to each Engine) executed by
AVSA as owner of the Aircraft in favor of the Owner Trustee and to be dated
the Delivery Date.
Bankruptcy Code. The Federal Bankruptcy Code of 1978, as amended, and
any successor thereto.
Bankruptcy Default. An event specified in Section 16.01(e), (f) or
(g) of the Lease which either does or, with the giving of notice or lapse of
time or both, would constitute an Event of Default.
Basic Rent. The aggregate periodic rent payable for the Aircraft
throughout the Basic Term pursuant to Section 3.02 of the Lease, adjusted
pursuant to Article 3 of the Lease.
Basic Term. The period commencing at the beginning of the day on the
Delivery Date and ending at the end of the day on November 19, 2020, or such
earlier date on which the Lease shall be terminated as provided therein.
Beneficial Interest. The interest of the Owner Participant under the
Trust Agreement.
Business Day. Any day on which commercial banks are not authorized or
required to close in New York, New York, Memphis, Tennessee and the city in the
United States in which the office or agency is maintained by the Pass Through
Trustee for the payment of the Pass Through Certificates, and after the Lien
of the Indenture is discharged, Boston, Massachusetts.
Certificate Closing Date. The date of the closing with respect to the
purchase of Certificates by the Pass Through Trustee contemplated by Section
2.01(b) of the Participation Agreement.
Certificates. The Equipment Trust Certificates (Federal Express
Corporation Trust No. N672FE), issued by the Owner Trustee pursuant to the
Indenture and any certificate issued in exchange therefor or replacement
thereof pursuant to the Indenture.
Change in Tax Law. Any change to the Code or the Treasury regulations
promulgated thereunder or the publication of any revenue ruling, revenue
procedure or any informational release by the Internal Revenue Service or the
Department of Treasury either of which would change or would allow a change in
the tax assumptions or structure upon which the lease economics were based,
provided that the Owner Participant or the Lessee has notified the other party
of such change in writing prior to the Delivery Date.
Change in Tax Rate. Any amendment, modification, deletion, addition,
or change to the Code which is enacted into law after the Delivery Date which
changes the highest marginal statutory rate of Federal income tax applicable
to the Owner Participant (other than a change which is in the nature of a
minimum tax).
Citizen of the United States. A citizen of the United States as
defined in Section 40102(a)(15) of the Transportation Code, or any analogous
part of any successor or substituted legislation or regulation at the time in
effect.
Class A Liquidity Provider. Has the meaning specified in Section
1.01 of the Intercreditor Agreement.
Class B Liquidity Provider. Has the meaning specified in Section
1.01 of the Intercreditor Agreement.
Closings. The closing with respect to the acquisition of the Pass
Through Certificates by the Underwriters and the closing with respect to the
acquisition of Certificates by the Pass Through Trustee.
Code. Except as otherwise provided, the Internal Revenue Code of
1986, as amended from time to time.
Collateral Account. The deposit account established and maintained
pursuant to Section 2.13 of the Indenture.
Collateral Account Control Agreement. The Collateral Account Control
Agreement dated as of May 1, 1997 among State Street Bank and Trust Company,
the Indenture Trustee and the Owner Trustee.
Commitment. The amount of the Owner Participant's participation in
the Purchase Price required to be made available or paid as provided in
Section 3.02 of the Participation Agreement.
Consent and Agreement. The Consent and Agreement dated as of May 1,
1997 executed by the Manufacturer.
Consent and Guaranty. The Consent and Guaranty of the Manufacturer
attached to the Purchase Agreement.
Corporate Trust Administration. The Corporate Trust Administration
office of the Owner Trustee located at 750 Main Street, Hartford, Connecticut
06103, Attention: Corporation Trust Administration, or such other office at
which the Owner Trustee's corporate trust business shall be administered which
the Owner Trustee shall have specified by notice in writing to the Lessee, the
Owner Participant and the Indenture Trustee.
Corporate Trust Department. The Corporate Trust Department office of
the Indenture Trustee located at 79 South Main Street, Salt Lake City, Utah
84111, Attention: Corporate Trust Department, or such other office at which
the Indenture Trustee's corporate trust business shall be administered which
the Indenture Trustee shall have specified by notice in writing to the Lessee,
the Owner Participant and the Owner Trustee.
CRAF Program. Has the meaning specified in Section 7.01(f) of the
Lease.
Cut-Off Date. November 17, 1997.
Debt Portion. The amount specified as such on Schedule IV to the
Participation Agreement.
Debt Rate. The weighted average (based on Outstanding principal
amount) rate of interest on the Certificates issued pursuant to the Indenture.
Default. Any event or condition which, with the lapse of time or the
giving of notice, or both, would constitute an Event of Default.
Delivery Date. The date on which the Aircraft is delivered and sold
by AVSA to the Lessor and leased by the Lessor to the Lessee under the Lease,
which date shall also be the date of the initial Lease Supplement.
Delivery Notice. Notice of the Aircraft's Delivery Date, given by
the Lessee as provided in Section 3.01 of the Participation Agreement and
including any notice with respect to a postponed Delivery Date given by the
Lessee pursuant to Section 3.05(c) of the Participation Agreement.
Eligible Deposit Account. Either (a) a segregated account with an
Eligible Institution or (b) a segregated trust account with the corporate
trust department of a depository institution with corporate trust powers
organized under the laws of the United States or any state thereof, or the
District of Columbia, and whose deposits are insured by the Federal Deposit
Insurance Corporation, provided that such institution also has a combined
capital and surplus of at least $100,000,000 and a rating of A or better from
the Thomson Bank Watch.
Eligible Institution. A depository institution organized under the
laws of the United States or any one of the states thereof, or the District of
Columbia, or any domestic branch of a foreign bank, which in any such case at
all times (a) has either (x) a long-term unsecured debt rating of at least Aa2
by Moody's or (y) a short-term certificate of deposit rating of P-1 by
Moody's, (b) has either (x) a long-term unsecured debt rating of a least AA by
S&P or (y) a short-term certificate of deposit rating of A-1+ by S&P and (c)
is a member of the Federal Deposit Insurance Corporation.
Engine. Each of the two General Electric CF6-80C2-A5F engines listed
by its manufacturer's serial number in the initial Lease Supplement and leased
pursuant to the Lease, whether or not from time to time installed on the
Airframe or installed on any other airframe or on any other aircraft, and any
Replacement Engine which may from time to time be substituted for an Engine
pursuant to Section 7.02(a)(vii), 10.02(c), 10.03, 11.03, 11.04 or 12.02 of
the Lease, together with all Parts related thereto. Except as otherwise
provided, at such time as a Replacement Engine shall be so substituted and the
Engine for which the substitution is made shall be released from the Lien of
the Indenture, such replaced Engine shall cease to be an "Engine" under the
Lease. The term "Engines" means, as of any date of determination, both Engines
then leased to the Lessee pursuant to the Lease.
Engine Consent. The Engine Consent dated as of May 1, 1997, executed
by the Engine Manufacturer.
Engine Manufacturer. General Electric Company, a New York
corporation.
Engine Warranty Assignment. The Engine Warranty Assignment (Federal
Express Corporation Trust No. N672FE), dated as of May 1, 1997 between the
Lessor and the Lessee.
ERISA. The Employee Retirement Income Security Act of 1974, as
amended.
ERISA Plan. As defined in Section 8.01(b)(xii) of the Participation
Agreement.
Estimated Expense Amount. Has the meaning specified in Section
10.01(a) of the Participation Agreement.
Event of Default. Each of the events specified in Article 16 of the
Lease.
Event of Loss. Any of the following events with respect to the
Aircraft, the Airframe or any Engine: (i) loss of such property or its use (A)
for a period in excess of 60 days due to theft or disappearance or such longer
period, not to exceed 180 days from the end of such initial 60-day period, if
and so long as the location of such property is known to the Lessee and the
Lessee is diligently pursuing recovery of such property, or to the end of the
Term, if less (unless such theft or disappearance constitutes an Event of Loss
pursuant to (i)(B) or (ii) hereof) or (B) for a period in excess of 60 days
due to the destruction, damage beyond economic repair or rendition of such
property permanently unfit for normal use by Lessee for any reason whatsoever;
(ii) any damage to such property which results in an insurance settlement with
respect to such property on the basis of a total loss, or constructive or
compromised total loss; (iii) (1) condemnation, confiscation or seizure of, or
requisition of title to such property by the Government, any foreign
government or purported government or any agency or instrumentality thereof,
or (2) condemnation, confiscation, or seizure of, or requisition or taking of,
use of such property (A) by a foreign government or instrumentality or agency
of any such foreign government, for a period in excess of 180 days (or such
shorter period ending on the earlier of the expiration of the Term or on the
date on which an insurance settlement with respect to such property on the
basis of a total loss or constructive or compromised total loss shall occur)
or (B) by the Government for a period extending beyond the Term; and (iv) as a
result of any law, rule, regulation, order or other action by the Aeronautics
Authority or other governmental body having jurisdiction, the use of the
Aircraft or Airframe in the normal course of air transportation of cargo shall
have been prohibited by virtue of a condition affecting all Airbus A300-600
series aircraft equipped with engines of the same make and model as the
Engines for a period of twelve (12) consecutive months, unless the Lessee,
prior to the expiration of such twelve (12) month period, shall be diligently
carrying forward all steps which are necessary or desirable to permit the
normal use of the Aircraft or Airframe or, in any event, if such use of the
Aircraft or the Airframe shall have been prohibited for a period of
twenty-four (24) consecutive months or until the end of the Term, if earlier.
The date of such Event of Loss shall be (s) the 61st day or the 241st day, as
the case may be, following loss of such property or its use due to theft or
disappearance (or the end of the Term or the Lessee's abandonment of diligent
efforts to recover such property, if earlier); (t) the 61st day following the
date of any destruction, damage beyond economic repair or rendition of such
property permanently unfit for normal use; (u) the date of any insurance
settlement on the basis of a total loss or constructive or compromised total
loss; (v) the date of any condemnation, confiscation, seizure or requisition
of title of such property; (w) the 181st day following condemnation,
confiscation, seizure or requisition for use of such property by a foreign
government referred to in clause (iii)(2)(A) above (or the end of the Term or
the date of any insurance settlement described therein, if earlier than such
181st day); (x) the last day of the Term in the case of requisition for use of
such property by the Government; (y) the last day of the 12 month or 24 month
period, referred to in clause (iv) above (or if earlier, the end of the Term
or abandonment of the Lessee's efforts to restore the normal use of the
Aircraft). An Event of Loss with respect to the Aircraft shall be deemed to
have occurred if any Event of Loss occurs with respect to the Airframe.
Excepted Payments. Collectively, (i) indemnity, expense,
reimbursement or other payments paid or payable by the Lessee in respect of
the Owner Participant, the Owner Trustee in its individual capacity or any of
their respective successors, permitted assigns, directors, officers,
employees, servants and agents or Affiliates, pursuant to the Participation
Agreement or any other Operative Agreement or any indemnity hereafter granted
to the Owner Participant or the Owner Trustee in its individual capacity
pursuant to the Lease or the Participation Agreement, (ii) proceeds of public
liability insurance (or government indemnities in lieu thereof) in respect of
the Aircraft payable as a result of insurance claims paid for the benefit of,
or losses suffered by, the Owner Trustee or the Indenture Trustee in their
respective individual capacities or by the Owner Participant, or their
respective successors, permitted assigns or Affiliates, (iii) proceeds of
insurance maintained with respect to the Aircraft by the Owner Participant
(whether directly or through the Owner Trustee) maintained in accordance with
Section 13.05 of the Lease but not required under Article 13 of the Lease,
(iv) payments of Supplemental Rent by the Lessee in respect of any amounts
payable under the Tax Indemnity Agreement, (v) any purchase price paid to the
Owner Participant for its interest in the Trust Estate pursuant to Section
7.03(d) of the Participation Agreement, (vi) subject to Section 3.05 of the
Lease, payments constituting increases in Basic Rent attributable to payments
arising pursuant to Section 5 of the Tax Indemnity Agreement, (vii) any
payments in respect of interest to the extent attributable to payments
referred to in clauses (i) through (vi) above and (viii) any right to demand,
collect or otherwise receive and enforce the payment of any amount described
in clauses (i) through (v) and (vii) above (except with respect to interest
attributable to payments referred to in clause (vi) above).
Expense; Expenses. Have the meaning specified in Section 9.01(a) of
the Participation Agreement.
Fair Market Renewal Term. A term with respect to which the Lessee has
exercised its option to renew the Lease pursuant to the second paragraph of
Section 4.01(a) thereof and with respect to which the conditions set forth in
such Section 4.01(a) are met.
Fair Market Rental. An amount determined on the basis of, and equal
in amount to, the rental which would be obtained in an arm's-length
transaction between an informed and willing lessee and an informed and willing
lessor unaffiliated with such lessee, neither being under any compulsion to
lease. In such determination, it shall be assumed that the Aircraft is in the
condition required under the Lease in the case of return of the Aircraft
pursuant to Article 12 of the Lease and Fair Market Rental shall be determined
in accordance with the provisions of Section 4.03 of the Lease.
Fair Market Value. An amount determined on the basis of, and equal in
amount to, the value which would be obtained in an arm's-length transaction
between an informed and willing purchaser under no compulsion to buy and an
informed and willing seller unaffiliated with such purchaser and under no
compulsion to sell, assuming the Aircraft (or other property) is unencumbered
by the Lease. In such determination, except for purposes of Section 17.01 of
the Lease (when it shall be determined based upon the actual condition and
location of the Aircraft), it shall be assumed that the Aircraft is in the
condition required under the Lease in the case of return of the Aircraft
pursuant to Article 12 of the Lease and Fair Market Value shall be determined
in accordance with the provisions of Section 4.03 of the Lease.
Federal Aviation Administration; FAA. The United States Federal
Aviation Administration and any successor agency or agencies thereto.
Final Drawing. Has the meaning specified in Section 1.01 of the
Intercreditor Agreement.
Fixed Renewal Rent. Semi-annual payments of rent during the Fixed
Renewal Term equal to the lesser of (i) Fair Market Rental as determined as of
the commencement of such Fixed Renewal Term and (ii) 50% of the average actual
semi-annual Basic Rent payable during the Basic Term.
Fixed Renewal Term. The term with respect to which the Lessee has
exercised its option to renew the Lease pursuant to the first paragraph of
Section 4.01(a) thereof and with respect to which the conditions set forth in
such Section 4.01(a) are met.
FPO Price. Has the meaning set forth in Section 4.02(a)(F) of the
Lease.
French Pledge Agreement. The French Pledge Agreement dated as of May
1, 1997 between the Owner Trustee and the Indenture Trustee.
FSB. First Security Bank, National Association, a national banking
association.
Government. The United States of America or an agency or
instrumentality thereof the obligations of which bear the full faith and
credit of the United States of America.
GTA. The General Terms Agreement dated as of July 3, 1991 between the
Engine Manufacturer and the Lessee related to the purchase by the Lessee of the
Engines as originally executed or as modified, amended or supplemented in
accordance with the terms thereof, but only insofar as the General Terms
Agreement relates to the Engines, to the extent assigned to the Owner Trustee
pursuant to the Engine Warranty Assignment.
Holder of a Certificate; Certificate Holder; Holder. As of any
particular time, the Person in whose name a Certificate shall be registered
(but not including the holder of any Pass Through Certificate).
Indemnitee. Each of SSB, in its individual capacity and as Owner
Trustee and Lessor, the Subordination Agent, in its individual capacity and in
its capacity as Subordination Agent, each Liquidity Provider, the Owner
Participant, the Indenture Trustee, in its individual capacity and as trustee,
the Owner Participant Guarantor and any successor (including any trustee which
may succeed to the Lessor's interest under the Lease), Affiliate, assign,
officer, director, employee, agent and servant of any of the foregoing, the
Lessor's Estate and the Trust Indenture Estate. Neither the Pass Through
Trustee nor any holder of a Pass Through Certificate shall be deemed to be an
Indemnitee.
Indenture. The Trust Indenture and Security Agreement (Federal
Express Corporation Trust No. N672FE), dated as of May 1, 1997, between the
Lessor and the Indenture Trustee, as supplemented by the Indenture and
Security Agreement Supplement.
Indenture and Security Agreement Supplement. The Indenture and
Security Agreement Supplement No. 1 (Federal Express Corporation Trust No.
N672FE) to be dated the Delivery Date, substantially in the form of Exhibit A
to the Indenture.
Indenture Default. Any event or condition which, with the lapse of
time or the giving of notice, or both, would constitute an Indenture Event of
Default.
Indenture Documents. Has the meaning specified in the Granting
Clause of the Indenture.
Indenture Event of Default. Each of the events specified in Section
7.01 of the Indenture.
Indenture Trustee. First Security Bank, National Association, a
national banking association, not in its individual capacity but solely as
Indenture Trustee under the Indenture.
Indenture Trustee's Liens. Any Lien against, on or with respect to
the Aircraft, the Lessor's Estate or the Trust Indenture Estate or any part
thereof resulting from (i) claims against the Indenture Trustee not related to
the administration of the Trust Indenture Estate or any transactions pursuant
to the Indenture or any document included in the Trust Indenture Estate, (ii)
any act or omission of the Indenture Trustee which is not related to the
transactions contemplated by the Operative Agreements or is in violation of
any of the terms of the Operative Agreements or (iii) Taxes imposed against
the Indenture Trustee in its individual capacity in respect of which the Lessee
has not indemnified (and is not obligated to indemnify) the Indenture Trustee
in such capacity.
Independent Appraisal. An appraisal conducted pursuant to Section
4.03 of the Lease.
Independent Investment Banker. An independent investment banking
institution of national standing appointed by the Lessee that is independent
in fact, does not have any direct financial interests, or any material
indirect financial interest, in the Lessee or any Affiliate of the Lessee, and
is not connected with the Lessee or any Affiliate of the Lessee, as an
officer, employee, promoter, underwriter, trustee, partner, director or Person
performing similar functions; provided, that if the Indenture Trustee shall
not have received written notice of such an appointment at least 10 days prior
to the Prepayment Date, "Independent Investment Banker" shall mean such an
institution appointed by the Indenture Trustee.
Intercreditor Agreement. The Intercreditor Agreement dated as of May
1, 1997, among the Pass Through Trustee, the Class A Liquidity Provider, the
Class B Liquidity Provider and the Subordination Agent.
Interest Drawing. Has the meaning specified in Section 1.01 of the
Intercreditor Agreement.
Invoice. The invoice for the Aircraft given by AVSA to the Lessor.
Lease. The Lease Agreement (Federal Express Corporation Trust No.
N672FE) dated as of May 1, 1997, entered into by the Lessor and the Lessee
concurrently with the execution and delivery of the Indenture, including,
without limitation, supplementation by one or more Lease Supplements entered
into pursuant to the applicable provisions of the Lease.
Lease Supplement. The Lease Supplement No. 1 (Federal Express
Corporation Trust No. N672FE) to be dated the Delivery Date, substantially in
the form of Exhibit A to the Lease.
Lease Term. The period commencing on the Delivery Date and ending at
the end of the Basic Term.
Lessee. Federal Express Corporation, a Delaware corporation.
Lessee Documents. Has the meaning set forth in Section 6.01(b) of the
Participation Agreement.
Lessor. State Street Bank and Trust Company of Connecticut, National
Association, a national banking association, not in its individual capacity
but solely as Owner Trustee under the Trust Agreement.
Lessor's Estate. All estate, right, title and interest of the Owner
Trustee in and to the Collateral Account, the Liquid Collateral, the Aircraft,
the Lease, any Lease Supplement, the Participation Agreement, AVSA's FAA Bill
of Sale, AVSA's Warranty Bill of Sale, the Airbus Guaranty, the Purchase
Agreement, the Purchase Agreement Assignment, the Consent and Agreement, the
AVSA Consent and Agreement, the Consent and Guaranty (to the extent assigned
by the Purchase Agreement Assignment), any Ancillary Agreement, the GTA, the
Engine Warranty Assignment, the Engine Consent, any warranty with respect to
the Airframe and the Engines, all amounts of Basic Rent and Supplemental Rent,
including without limitation, insurance proceeds (other than insurance
proceeds payable to or for the benefit of the Owner Trustee in its individual
capacity or the Owner Participant) and requisition, indemnity or other
payments of any kind for or with respect to the Aircraft (except amounts owing
to the Owner Participant, to the Indenture Trustee, to the Owner Trustee in its
individual capacity, or to any of their respective directors, officers,
employees and agents pursuant to Articles 8 and 9 of the Participation
Agreement), and all other property of the Owner Trustee purportedly subjected
to the Lien of the Indenture by the Granting Clause thereof; provided that in
no event shall "Lessor's Estate" include any Excepted Payment.
Lessor's Liens. Liens against, on or with respect to the Aircraft,
the Lessor's Estate or the Trust Indenture Estate or any part thereof, title
thereto or any interest therein arising as a result of (i) claims against the
Lessor, in its individual capacity or as Owner Trustee, or the Owner
Participant, in each case not related to the transactions contemplated by the
Operative Agreements, (ii) acts or omissions of the Lessor in its individual
capacity or as Owner Trustee, and, in the case of the Lessor in its individual
capacity, arising from its gross negligence or willful misconduct or expressly
prohibited under the Operative Agreements and any act or omission of the Owner
Participant which is in violation of any of the terms of the Operative
Agreements, (iii) Taxes or Expenses imposed against the Lessor, in its
individual capacity or as Owner Trustee, Owner Participant, Lessor's Estate or
the trust created by the Trust Agreement which are not required to be
indemnified against by the Lessee pursuant to the Participation Agreement by
reason of Section 8.01(b) or 9.01(b) thereof and which are not required to be
indemnified against by the Lessee pursuant to the Tax Indemnity Agreement, or
(iv) claims against the Lessor or the Owner Participant arising from the
voluntary transfer by the Lessor or the Owner Participant of its interests in
the Aircraft other than a transfer of the Aircraft pursuant to Section 4.02(a)
or Article 10 or 11 of the Lease and other than a transfer pursuant to the
exercise of the remedies set forth in Article 17 of the Lease.
Lien. Any mortgage, pledge, lien, charge, encumbrance, lease or
security interest or other similar interest.
Liquid Collateral. All amounts and securities deposited from time to
time in the Collateral Account and all the products, investments, earnings and
proceeds of the foregoing, including, but not limited to, all proceeds of the
investment or conversion thereof, voluntary or involuntary, into cash,
Specified Investments or other property, all rights to payment of any and
every kind, and other forms of obligations, and instruments and other property
which at any time constitute all or part or are included in the proceeds of
any of the foregoing.
Liquidity Facility. Has the meaning specified in Section 1.01 of the
Intercreditor Agreement.
Liquidity Provider. Has the meaning specified in Section 1.01 of the
Intercreditor Agreement.
Losses. Has the meaning specified in Section 17.02(a) of the
Participation Agreement.
Loss Payee. Has the meaning specified in Section 13.02(b)(i) of the
Lease.
Majority in Interest of Certificate Holders. As of a particular date
of determination, the Holders of more than 50% of the aggregate unpaid
principal amount of all Certificates outstanding as of such date excluding for
purposes of this definition any Certificates held by (i) the Owner Trustee or
the Owner Participant or any interests of the Owner Participant unless all
Certificates then outstanding shall be held by the Owner Participant, (ii) the
Lessee or (iii) any Affiliate of any thereof.
Make-Whole Premium. An amount determined as of the day before the
applicable Prepayment Date (or date of purchase, as the case may be) which an
Independent Investment Banker determines to be equal to the excess, if any, of
(i) the present value of the remaining scheduled payments of such principal
amount or portion thereof and interest thereon (excluding interest accrued
from the immediately preceding Payment Date to such Prepayment Date or date of
purchase, as the case may be) to the Maturity of such Certificate in
accordance with generally accepted financial practices assuming a 360-day year
consisting of twelve 30-day months at a discount rate equal to the Treasury
Yield, all as determined by the Independent Investment Banker over (ii) the
outstanding principal amount of such Certificate plus accrued interest.
Manufacturer. Airbus Industrie G.I.E., a groupement d'interet
economique formed under the laws of France.
Maturity. With respect to any Certificate, the date on which the
final principal amount of such Certificate is scheduled to be due and payable.
Moody's. Moody's Investors Service, Inc.
Net Present Value of Rents. The net present value, as of the
Delivery Date, of Basic Rent set forth in Schedule II of the Lease, discounted
at a rate equal to the Debt Rate per annum compounded semi-annually.
Non-U.S. Person. Any Person other than a U.S. Person.
Obsolete Parts. Parts which are severable from the Aircraft in
accordance with clauses (ii) and (iii) of the proviso to Section 9.02(b) of
the Lease and the Lessee in good faith determines to be obsolete or no longer
suitable or appropriate for use on the Airframe or any Engine.
Officer's Certificate. When delivered pursuant to the Indenture, a
certificate signed by a Responsible Officer of the Lessee or the Owner
Trustee, as the case may be, and delivered to the Indenture Trustee. Each
such certificate shall include the statements provided for in Section 15.07 of
the Indenture.
Operative Agreements. The Participation Agreement, the Trust
Agreement, AVSA's FAA Bill of Sale, AVSA's Warranty Bill of Sale, the Airbus
Guaranty, the Purchase Agreement, the Purchase Agreement Assignment, the GTA,
the Engine Warranty Assignment, the French Pledge Agreement, the Lease, the
Lease Supplement, the Owner Participant Guaranty, the Owner Trustee Guaranty,
if any, any Ancillary Agreement entered into by or with the written consent of
the Indenture Trustee, which by its terms is an Operative Agreement, the
Certificates outstanding at the time of reference, the Indenture, the
Indenture and Security Agreement Supplement, the Consent and Agreement, the
AVSA Consent and Agreement, the Consent and Guaranty (to the extent assigned
by the Purchase Agreement Assignment), the Engine Consent, the Tax Indemnity
Agreement, each Liquidity Facility, the Intercreditor Agreement, the
Collateral Account Control Agreement and any Assignment and Assumption
Agreement.
Opinion of Counsel. When delivered pursuant to the Indenture, a
written opinion of legal counsel, who in the case of counsel (a) for the
Lessee may be (i) an attorney employed by the Lessee who is generally
empowered to deliver such written opinions, (ii) Davis Polk & Wardwell or a
successor firm or (iii) other counsel designated by the Lessee and reasonably
satisfactory to the Indenture Trustee and (b) for the Owner Trustee or the
Indenture Trustee, an attorney selected by such Person and, in the case of the
Owner Trustee, reasonably satisfactory to the Indenture Trustee.
Outstanding. When used with respect to Certificates, as of the date
of determination and subject to the provisions of Section 10.04 of the
Indenture, all Certificates theretofore executed and delivered under the
Indenture, with the exception of the following:
(i) Certificates theretofore cancelled by the Indenture Trustee or
delivered to the Indenture Trustee for cancellation pursuant to
Section 2.08 of the Indenture or otherwise;
(ii) Certificates for which prepayment money in the necessary amount
has been theretofore deposited with the Indenture Trustee in trust
for the Holders of such Certificates pursuant to Section 14.01 of the
Indenture; provided, that if such Certificates are to be prepaid,
notice of such prepayment has been duly given pursuant to the
Indenture or provision therefor satisfactory to the Indenture Trustee
has been made; and
(iii) Certificates in exchange for or in lieu of which other
Certificates have been executed and delivered pursuant to Article II
of the Indenture.
Owner Participant. The trustor originally named in the Trust
Agreement and any successor thereto, and any Person to which the Owner
Participant transfers, in accordance with the Trust Agreement, its right,
title and interest in and to the Operative Agreements and the Lessor's Estate.
Owner Participant Guarantor. Philip Morris Capital Corporation, a
Delaware corporation, and any other provider of an Owner Participant Guaranty.
Owner Participant Guaranty. The Owner Participant Guaranty dated the
Certificate Closing Date by the Owner Participant Guarantor in favor of the
Lessee, the Owner Trustee, the Indenture Trustee and the Pass Through Trustee,
and any guaranty delivered in compliance with Section 7.03(d) of the
Participation Agreement.
Owner Trustee. SSB, not in its individual capacity except as
otherwise expressly stated, but solely as Owner Trustee under the Trust
Agreement.
Owner Trustee Guarantor. The provider of an Owner Trustee Guaranty.
Owner Trustee Guaranty. Any guaranty delivered in compliance with
Section 11.01(b)(ii) of the Participation Agreement.
Owner's Economic Return. The Owner Participant's anticipated net
after-tax book yield and aggregate after-tax cash during the Basic Term
utilizing the multiple investment sinking fund method of analysis, computed on
the basis of the same methodology and assumptions as were utilized by the
Owner Participant in determining Basic Rent, Stipulated Loss Value and
Termination Value percentages, as the case may be, as such assumptions may be
adjusted for events which have been the basis of adjustments to Rent pursuant
to Section 3.04 of the Lease.
Participation Agreement. The Participation Agreement (Federal Express
Corporation Trust No. N672FE), dated as of May 1, 1997, among the Lessee, the
Owner Trustee not in its individual capacity except as otherwise expressly
provided therein, but solely as owner trustee, the Owner Participant, the
Indenture Trustee not in its individual capacity except as otherwise expressly
provided therein, but solely as indenture trustee, the Pass Through Trustee
not in its individual capacity except as otherwise expressly provided therein,
but solely as pass through trustee and the Subordination Agent not in its
individual capacity except as otherwise expressly provided therein, but solely
as subordination agent.
Parts. All appliances, parts, components, instruments, appurtenances,
accessories, furnishings and other equipment of whatever nature (other than
complete Engines or engines) which may from time to time be incorporated or
installed in or attached to the Airframe or any Engine or title to which
remains vested in the Lessor pursuant to Article 8 of the Lease.
Pass Through Agreement. The Pass Through Trust Agreement dated as of
May 1, 1997 between the Lessee and the Pass Through Trustee.
Pass Through Certificates. Any of the Pass Through Certificates,
1997-1-A, the Pass Through Certificates, 1997-1-B or the Pass Through
Certificates, 1997-1-C, in each case as issued by the related Pass Through
Trust; and "Pass Through Certificates" means all of the Pass Through
Certificates issued by each of the Pass Through Trusts.
Pass Through Closing Date. The Business Day on which the sale of the
Pass Through Certificates to the Underwriters pursuant to the Underwriting
Agreement takes place.
Pass Through Trust. The Federal Express Corporation 1997-1 Pass
Through Trust Class A, Federal Express Corporation 1997-1 Pass Through Trust
Class B and Federal Express Corporation 1997-1 Pass Through Trust Class C, in
each case formed pursuant to the related Series Supplement in accordance with
the Pass Through Agreement; and "Pass Through Trusts" means all of such Pass
Through Trusts.
Pass Through Trustee. First Security Bank, National Association, a
national banking association, in its capacity as Pass Through Trustee under
the Pass Through Agreement and each Pass Through Trust.
Past Due Rate. In respect of (A) any amount payable to the Owner
Participant or the Owner Trustee a rate per annum during the period from and
including the due date to but excluding the date on which such amount is paid
in full equal to 2% plus the Debt Rate and (B) any principal of or interest on
any Certificate or any other amount payable under the Indenture, any
Certificate or any other Operative Agreement that is not paid when due
(whether at Maturity, by acceleration, by optional or mandatory prepayment or
otherwise) to any Holder, the Indenture Trustee or the Pass Through Trustee, a
rate per annum during the period from and including the due date to but
excluding the date on which such amount is paid in full equal to (i) in the
case of any such amount payable to the Holder of any Certificate, 2% plus the
interest rate applicable to such Certificate and (ii) in the case of any other
such amount, 2% plus the Debt Rate.
Payment Date. Each January 15 and July 15 commencing on July 15,
1997.
Payment Default. Any event specified in Section 16.01(a) or 16.01(b)
of the Lease which with the giving of notice or lapse of time or both would
constitute an Event of Default.
Permitted Investments. Those investments enumerated in Section
23.01(a) (i), (ii), (iii) and (iv) of the Lease.
Person. Any individual, sole proprietorship, partnership, joint
venture, joint stock company, trust, unincorporated organization, association,
corporation, institution, entity or government (federal, state, local,
foreign or any agency, instrumentality, division or body thereof).
Preliminary Notice. Has the meaning specified in Section 4.01(a) of
the Lease.
Premium Termination Date. With respect to the Series A Certificates,
December 27, 2011, with respect to the Series B Certificates, February 5, 2010
and with respect to the Series C Certificates, March 22, 2007.
Prepayment Date. Has the meaning specified in Section 6.02(b) of the
Indenture.
Prepayment Price. Has the meaning specified in Section 6.02(b) of the
Indenture.
Principal Amount. With respect to a Certificate means the stated
original principal amount of such Certificate and, with respect to all
Certificates, means the aggregate stated original principal amounts of all
Certificates.
Property. Any right or interest in or to property of any kind
whatsoever, whether real, personal or mixed and whether tangible or intangible.
Proposed Termination Date. The proposed date of termination of the
Lease as specified by the Lessee in its notice given pursuant to Section 10.01
thereof.
Purchase Agreement. The Airbus A300-600R Freighter Purchase Agreement,
dated as of July 3, 1991 between AVSA and the Lessee, including all exhibits,
appendices and letter agreements attached thereto as originally executed or as
modified, amended or supplemented in accordance with the terms thereof, but
only to the extent that the foregoing relates to the Aircraft and to the
extent assigned pursuant to the Purchase Agreement Assignment.
Purchase Agreement Assignment. The Purchase Agreement Assignment
(Federal Express Corporation Trust No. N672FE), dated as of May 1, 1997 between
the Lessor and the Lessee.
Purchase Price. Has the meaning specified in Ancillary Agreement II.
Record Date. With respect to Payment Dates under the Indenture
(except a date for payment of defaulted interest), December 31 for January 15
Payment Dates and June 30 for July 15 Payment Dates, whether or not such date
is a Business Day.
Recourse Amount. Has the meaning specified in Section 17.10 of the
Participation Agreement.
Refinancing. A non-recourse loan to the Lessor arranged pursuant to
Section 15.01 of the Participation Agreement.
Register. Has the meaning set forth in Section 3.02 of the Indenture.
Registrar. Has the meaning set forth in Section 3.02 of the
Indenture.
Regulation D. Regulation D of the Board of Governors of the Federal
Reserve System (or any successor), as the same may be modified and
supplemented and in effect from time to time.
Related Indentures. Collectively, the Trust Indenture and Security
Agreement for each of Federal Express Corporation Trust Nos. N670FE, N671FE,
N673FE, N674FE, N583FE and N584FE, each dated as of May 1, 1997, between the
Owner Trustee and the Indenture Trustee, the Trust Indenture and Security
Agreement for Federal Express Corporation Trust No. N581FE, dated as of May 1,
1997, between Wilmington Trust Company, as owner trustee and the Indenture
Trustee, and the Trust Indenture and Security Agreement for Federal Express
Corporation Trust No. N587FE, dated as of December 1, 1996, as amended and
restated as of May 1, 1997, between Wilmington Trust Company, as owner trustee
and the Indenture Trustee.
Remaining Weighted Average Life. On a given date with respect to any
Certificate the number of days equal to the quotient obtained by dividing (i)
the sum of each of the products obtained by multiplying (a) the amount of each
then remaining scheduled payment of principal of such Certificate by (b) the
number of days from and including such prepayment date to but excluding the
dates on which each such payment of principal is scheduled to be made; by (ii)
the then outstanding principal amount of such Certificate.
Renewal Rent. The amount payable by the Lessee as rent in accordance
with Section 4.01 of the Lease during any Renewal Term.
Renewal Term. One or more terms with respect to which the Lessee has
exercised its option to renew the Lease pursuant to Section 4.01(a) thereof.
Rent. All payments due from the Lessee under the Lease as Basic Rent,
Renewal Rent and Supplemental Rent, collectively.
Rent Payment Date. November 19, 2020 and each January 15 and July 15
commencing on January 15, 1998.
Reoptimization Date. Has the meaning specified in Section 15.02(a)
of the Participation Agreement.
Replacement Aircraft. Any aircraft substituted for the Aircraft
pursuant to Section 11.03(a) of the Lease.
Replacement Airframe. Has the meaning set forth in Section 11.03 of
the Lease.
Replacement Engine. A General Electric CF6-80C2-A5F engine (or an
engine of the same or another manufacturer) of equal or greater value,
airworthiness, remaining useful life and utility as the Engine being replaced,
together with all Parts relating to such engine; provided, however, that if
such replacement engine is not a General Electric CF6-80C2-A5F engine, such
replacement engine must then be commonly used in the commercial aviation
industry on Airbus A300-600 airframes.
Responsible Officer. With respect to the Owner Trustee (except for
purposes of the Trust Agreement in which case the definition of Responsible
Officer set forth in Section 3.10 of the Trust Agreement is applicable) or the
Indenture Trustee, any officer in its Corporate Trust Administration, as the
case may be, designated by such Person to perform obligations under the
Operative Agreements, and with respect to any other party, any corporate
officer or (except in the case of the Owner Participant) other employee of a
party who, in the normal performance of his or her operational
responsibilities, with respect to the subject matter of any covenant,
agreement or obligation of such party pursuant to any Operative Agreement,
would have responsibility for and knowledge of such matter and the
requirements of any Operative Agreement with respect thereto.
S&P. Standard & Poor's Ratings Group.
Scheduled Delivery Date. The Delivery Date specified in the Delivery
Notice pursuant to Section 3.01 of the Participation Agreement.
SEC. The Securities and Exchange Commission of the United States and
any successor agencies or authorities.
Secured Obligations. Has the meaning specified in the Granting
Clause of the Indenture.
Securities Act. The Securities Act of 1933, as amended.
Series "A" or "Series A Certificates". Certificates issued and
designated as "Series A" under the Indenture, in the Principal Amount and
maturities and bearing interest as specified in Exhibit B to the Indenture
under the heading "Series A".
Series "B" or "Series B Certificates". Certificates issued and
designated as "Series B" under the Indenture, in the Principal Amount and
maturities and bearing interest as specified in Exhibit B to the Indenture
under the heading "Series B".
Series "C" or "Series C Certificates". Certificates issued and
designated as "Series C" under the Indenture, in the Principal Amount and
maturities and bearing interest as specified in Exhibit B to the Indenture
under the heading "Series C".
Series Supplement or Series Supplements. The Series Supplement
1997-1-A to be executed and delivered by the Lessee and the Pass Through
Trustee, the Series Supplement 1997-1-B to be executed and delivered by the
Lessee and the Pass Through Trustee or the Series Supplement 1997-1-C to be
executed and delivered by the Lessee and the Pass Through Trustee.
Sinking Fund Redemption Date. Has the meaning specified in Section
6.06 of the Indenture.
Sinking Fund Redemption Price. Has the meaning specified in Section
6.06 of the Indenture.
Special Aviation Counsel. Daugherty, Fowler & Peregrin.
Specified Investments. Shall mean (a) direct obligations of the
United States of America or obligations fully guaranteed by the United States
of America; (b) commercial paper rated A-1/P-1 by S&P and Moody's,
respectively or, if such ratings are unavailable, rated by any nationally
recognized rating organization in the United States equal to the highest
rating assigned by such rating organization; (c) investments in negotiable
certificates of deposit, time deposits, banker's acceptances, commercial paper
or other direct obligations of, or obligations guaranteed by, commercial banks
organized under the laws of the United States or of any political subdivision
thereof (or any U.S. branch of a foreign bank) with issuer ratings of at least
B/C by Thomson Bankwatch, having maturities no later than 90 days following
the date of such investment; (d) overnight federal funds transactions with
members of the Federal Reserve System arranged by federal funds brokers; or
(e) overnight repurchase agreements with respect to the securities described
in clause (a) above entered into with an office of a bank or trust company
which is located in the United States of America or any bank or trust company
which is organized under the laws of the United States or any state thereof
and has capital, surplus and undivided profits aggregating at least $500
million.
SSB. State Street Bank and Trust Company of Connecticut, National
Association, a national banking association.
Stipulated Loss Value. As of any Stipulated Loss Value Determination
Date during the Basic Term, the amount determined by multiplying the Purchase
Price by the percentage set forth in Schedule III of the Lease under the
heading "Stipulated Loss Value Factor" opposite such date (as such Schedule
III may be adjusted from time to time as provided in Section 3.04 of the
Lease), and during any Renewal Term, the amount determined pursuant to Section
4.01(b) of the Lease. Notwithstanding any other provisions of the Lease or
the Participation Agreement or the Indenture, each Stipulated Loss Value for
the Aircraft shall be, under any circumstances and in any event, an amount,
together with so much of the arrears portion of Basic Rent due and owing
through the date of payment of Stipulated Loss Value as does not constitute an
Excepted Payment, at least sufficient to pay in full as of such date of
payment the aggregate unpaid principal amount of and accrued interest on the
Certificates outstanding on such date of payment. Subject to the immediately
preceding sentence, it is understood and agreed that the amounts set forth on
Schedule III of the Lease, for dates other than Rent Payment Dates on which
arrears Basic Rent is due, fully reflect appropriate Basic Rent accruals and
credits of unearned Basic Rent through such date and, accordingly, no further
accrual or credit shall be required through such date whenever Stipulated Loss
Value is to be calculated with reference to any such date; provided that if
amounts in respect of Stipulated Loss Value are payable under the Operative
Agreements after the Stipulated Loss Determination Date in respect of which
such Stipulated Loss Value was determined, the Lessor shall be compensated
during the period from the Stipulated Loss Determination Date to such payment
date in accordance with the provisions of the Operative Agreements.
Stipulated Loss Value Determination Date. Each date set forth on
Schedule III of the Lease.
Subordination Agent. First Security Bank, National Association, a
national banking association, not in its individual capacity but solely as
Subordination Agent.
Supplemental Rent. (a) All amounts, liabilities and obligations
which the Lessee assumes or agrees to perform or pay under the Lease or under
the Participation Agreement or Tax Indemnity Agreement or any Ancillary
Agreement or any other Operative Agreement to the Lessor, the Owner
Participant, the Indenture Trustee, the Subordination Agent, any Liquidity
Provider or others, including, without limitation, payments of Stipulated Loss
Value, FPO Price and amounts calculated by reference to Termination Value, any
amounts of Make-Whole Premium payable under the Indenture to the extent
provided in Section 3.03 of the Lease, and all amounts required to be paid by
Lessee under the agreements, covenants and indemnities contained in the Lease
or in the Participation Agreement or the Tax Indemnity Agreement or any other
Operative Agreement, but excluding Basic Rent and (b) all amounts that the
Owner Trustee is obligated to pay in accordance with clause (b) of the last
paragraph of Section 2.04 of the Indenture.
Tax. Has the meaning set forth in Section 8.01(a) of the
Participation Agreement.
Tax Indemnity Agreement. The Tax Indemnity Agreement (Federal
Express Corporation Trust No. N672FE), dated as of May 1, 1997, between the
Lessee and the Owner Participant.
Term. The Basic Term of the lease for the Aircraft under the Lease
and, if renewed pursuant to Section 4.01 of the Lease, each Renewal Term for
the Aircraft for which the Lease is renewed, or such earlier date on which the
Lease is terminated pursuant to its terms.
Termination Date. A Rent Payment Date during the Basic Term that is
on or after December 31, 2004 in the case of Article 10 of the Lease, and in
the case of (i) Section 4.02(a)(A) of the Lease, the Rent Payment Date falling
on July 15, 2014, (ii) Section 4.02(a)(D) or (E) of the Lease, a Rent
Payment Date that is on or after the seventh anniversary of the Delivery Date
and (iii) Section 4.02(a)(F) of the Lease, the last day of the Basic Term.
Termination Value. As of any Termination Date, the amount determined
by multiplying the Purchase Price by the percentage set forth in Schedule IV
of the Lease under the heading "Termination Value Factor" opposite such
Termination Date (as such Schedule IV may be adjusted from time to time as
provided in Section 3.04 of the Lease). Notwithstanding any other provisions
of the Lease, the Participation Agreement or the Indenture, each Termination
Value shall be, under any circumstances and in any event, an amount, together
with so much of the arrears portion of Basic Rent due and owing through the
date of payment of any amount calculated by reference to Termination Value as
does not constitute an Excepted Payment, at least sufficient to pay in full as
of such date of payment the aggregate unpaid principal amount of and accrued
interest on the Certificates outstanding on such date of payment. Subject to
the immediately preceding sentence, it is understood and agreed that the
amounts set forth on Schedule IV of the Lease, for dates other than Rent
Payment Dates on which arrears Basic Rent is due, fully reflect appropriate
Basic Rent accruals and credits of unearned Basic Rent through such date and,
accordingly, no further accrual or credit shall be required through such date
whenever Termination Value is to be calculated with reference to any such
date; provided that if amounts in respect of Termination Value are payable
under the Operative Agreements after the Termination Date in respect of which
such Termination Value was determined, the Lessor shall be compensated during
the period from the Termination Date to such payment date in accordance with
the provisions of the Operative Agreements.
Transaction Costs. Those costs and expenses set forth in Section
10.01(a) of the Participation Agreement.
Transportation Code. Title 49 of the United States Code, as amended
and in effect on the date of the Lease or as subsequently amended, or any
successor or substituted legislation at the time in effect and applicable, and
the regulations promulgated pursuant thereto.
Treasury Yield. At the time of determination with respect to any
Certificate, the interest rate (expressed as a semi-annual equivalent and as a
decimal and, in the case of United States Treasury bills, converted to a bond
equivalent yield) determined to be the per annum rate equal to the semi-annual
yield to maturity for United States Treasury securities maturing on the
Average Life Date on such Certificate and trading in the public securities
markets either as determined by interpolation between the most recent weekly
average yield to maturity for two series of United States Treasury securities,
trading in public securities markets, (i) one maturing as close as possible to,
but earlier than, the Average Life Date of such Certificate and (ii) the other
maturing as close as possible to, but later than, the Average Life Date of
such Certificate. In each case as published in the most recent H.15(519) or,
if a weekly average yield to maturity for United States Treasury securities
maturing on the Average Life Date of such Certificate is reported on the most
recent H.15 (519), such weekly average yield to maturity as published in such
H.15(919). "H.15(519)" means the weekly statistical release designated as
such, or any successor publication, published by the Board of Governors of the
Federal Reserve System. The date of determination of a Make-Whole Premium
will be the third Business Day prior to the applicable prepayment date and the
"most recent H.15(519)" means the H.15(519) published prior to the close of
business on the third Business Day prior to the applicable prepayment date.
Trust Agreement. The Trust Agreement (Federal Express Corporation
Trust No. N672FE), dated as of May 1, 1997, between the Owner Participant and
the Owner Trustee in its individual capacity.
Trust Estate. The Lessor's Estate.
Trust Indenture Act. The Trust Indenture Act of 1939, as amended.
Trust Indenture Estate. All estate, right, title and interest of the
Indenture Trustee in and to any of the property, rights, interests and
privileges granted to the Indenture Trustee pursuant to the Granting Clause of
the Indenture, other than Excepted Payments and any and all other rights of
the Owner Trustee or the Owner Participant expressly reserved to the Owner
Trustee or the Owner Participant pursuant to the Indenture.
Underwriters. Morgan Stanley & Co. Incorporated, First Chicago
Capital Markets, Inc., Goldman, Sachs & Co. and J.P. Morgan & Co.
Underwriting Agreement. The Underwriting Agreement dated May 22, 1997
among the Lessee and the Underwriters.
United States, U.S. or US. The United States of America.
U.S. Air Carrier. Any United States air carrier as to which there is
in force a certificate issued pursuant to Section 41102(a) or Section 41103 of
the Transportation Code, and as to which there is in force an air carrier
operating certificate issued pursuant to Chapter 447 of the Transportation
Code and Part 121 of the regulations under such Transportation Code, for
aircraft capable of carrying ten (10) or more individuals or 6,000 pounds or
more of cargo, or which may operate as an air carrier by certification or
otherwise under any successor or substitute provision thereof or in absence
thereof.
U.S. Person. A Person described in Section 7701(a)(30) of the Code.
SCHEDULE III
PERMITTED COUNTRY LIST
Australia Luxembourg
Austria Netherlands
Belgium New Zealand
Canada Norway
Denmark Philippines
Finland Portugal
France Republic of China (Taiwan)
Germany Singapore
Greece Sweden
Iceland Switzerland
Ireland Thailand
Japan United Kingdom
SCHEDULE IV
DEBT PORTION
Debt Portion $61,984,000
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EXHIBIT A(1)(a)(i)
[Letterhead of Federal Express]
[Certificate Closing Date]
To the Addressees Listed on Schedule A Attached
Re: Federal Express Corporation Trust No. N672FE
Ladies and Gentlemen:
I am the Vice President - Law of Federal Express
Corporation, a Delaware corporation ("Federal"), and am familiar with the
transactions contemplated by the Participation Agreement (Federal Express
Corporation Trust No. N672FE), dated as of May 1, 1997 (the "Participation
Agreement"), among Federal, as Lessee, PMCC Leasing Corporation, as Owner
Participant, State Street Bank and Trust Company of Connecticut, National
Association, not in its individual capacity, except as otherwise stated,
but solely as Owner Trustee, and First Security Bank, National Association,
not in its individual capacity, except as otherwise stated, but solely as
Indenture Trustee, Pass Through Trustee and Subordination Agent, relating
to the Aircraft. This opinion is being delivered pursuant to Section
4.01(k)(i) of the Participation Agreement. Capitalized terms not otherwise
defined herein have the meanings assigned thereto in the Participation
Agreement.
The Participation Agreement provides, among other things,
for the financing on the Delivery Date of a portion of the Owner Trustee's
payment of the Purchase Price of one Airbus A300F4-605R aircraft (the
"Aircraft"), using the proceeds from the public offering of the Pass
Through Certificates. Three Classes of Pass Through Certificates will be
issued by three Pass Through Trusts formed to acquire, among other
securities, the Certificates bearing a particular interest rate and having
a particular Maturity that will be issued under the Indenture.
In connection with the opinions expressed below, I have
examined or caused to be examined by attorneys under my supervision, (i)
executed counterparts of the Pass Through Agreement, the Series Supplements
and the Operative Agreements to be delivered on the Certificate Closing
Date (the "Certificate Closing Date Documents") and (ii) the forms of the
Operative Agreements to be delivered on the Delivery Date. We have relied
upon originals or copies, certified or otherwise identified to our
satisfaction, of such corporate records, documents and other instruments as
in our judgment are relevant to rendering the opinions expressed below. As
to any facts material to the opinions expressed below (other than any
thereof relating to Federal), we have relied upon the representations and
warranties made in the Certificate Closing Date Documents, the accuracy of
which we have not independently investigated or verified. In such
examination, we have assumed the genuineness of all signatures (other than
the signatures of Federal) and the authenticity of all documents submitted
to us as originals and the conformity with the originals of all documents
submitted to us as copies. We have also assumed that each of the parties
to each of the Certificate Closing Date Documents, other than Federal, has
full power, authority and legal right to enter into such Certificate
Closing Date Documents and that each such Certificate Closing Date Document
has been duly authorized, executed and delivered by each of such parties.
Based on the foregoing, it is my opinion that:
1. Federal is a corporation duly incorporated, validly
existing and in good standing under the laws of the State of Delaware, is a
"citizen of the United States" within the meaning of Section 40102(a)(15)
of the Transportation Code, and has or had, on the date of execution
thereof, the corporate power and authority to carry on its business as
currently conducted and to enter into and perform its obligations under the
Certificate Closing Date Documents to which it is a party. Federal is duly
qualified to do business and is in good standing in the State of Tennessee
and each other state of the United States in which its operations or the
nature of its business requires Federal to so qualify, except where the
failure to so qualify would not have a material adverse impact on Federal
or its business.
2. Federal possesses all necessary certificates,
franchises, licenses, permits, rights and concessions and consents which
are material to the operation of the routes flown by it and the conduct of
its business and operations as currently conducted, and each such
certificate, franchise, license, permit, right and concession and consent
is in full force and effect.
3. Each of the Certificate Closing Date Documents to which
Federal is a party has or had, on the date of execution thereof, been duly
authorized, executed and delivered by Federal and each constitutes the
legal, valid and binding obligation of Federal enforceable against Federal
in accordance with its terms. Each of the Certificate Closing Date
Documents to which Federal is to be a party and which are to be executed on
the Delivery Date has been duly authorized by Federal.
4. Neither the execution and delivery by Federal of the
Certificate Closing Date Documents to which Federal is a party, nor the
consummation of any of the transactions by Federal contemplated thereby,
nor the performance of the obligations thereunder by Federal, did at the
time of execution and delivery, or does presently (a) require any
stockholder approval or violate the certificate of incorporation or by-laws
of Federal or (b) conflict with or contravene the provisions of, or
constitute a default under, or result in the creation of any Lien (other
than Liens permitted under Section 6.01(a) of the Lease) upon the property
of Federal under any law, governmental rule or regulation, or the charter
or bylaws of Federal or any order, writ, injunction or decree of any court
or governmental authority against Federal or by which any of its properties
may be bound or any indenture, mortgage, contract or other agreement known
to me to which Federal is a party or by which it may be bound or, require
the approval or consent of any trustee or the holders of any indebtedness
or obligations of Federal.
5. Neither the execution and delivery by Federal of the
Certificate Closing Date Documents to which it is a party, nor the
consummation of any transactions by Federal contemplated thereby, nor the
performance of the obligations thereunder by Federal, did or does, as the
case may be, (a) require the consent or approval of, the giving of notice
to, or (except as described or contemplated in the Participation Agreement
and the Lease, all of which are required to be performed on or prior to the
Certificate Closing Date and which shall have been accomplished on or prior
to the Certificate Closing Date) the registration with, or the taking of
any other action in respect of, the Aeronautics Authority, the Securities
and Exchange Commission or any other authority or agency of the federal
government or of the State of Tennessee other than (i) the registration of
the issuance and sale of the Pass Through Certificates under the Securities
Act and (ii) compliance with the securities laws of each applicable state,
or (b) contravene any judgment or order applicable to or binding on Federal
or any law or governmental rule or regulation of the United States or of
the State of Tennessee.
6. There is no pending, or to my knowledge, threatened
action or proceeding before any court or administrative agency which
individually (or in the aggregate in the case of any group of related
lawsuits) is expected to have a material adverse effect on (A) the
financial condition of Federal, except for the matters described (a) under
"Legal Proceedings" in Federal's Annual Report on Form 10-K for the fiscal
year ended May 31, 1996 (as updated by Note 7 to the financial statements
included in Federal's Quarterly Reports on Form 10-Q for the fiscal
quarters ended August 31, 1996, November 30, 1996 and February 28, 1997)
and (b) in Federal's Current Reports on Form 8-K dated June 7, 1996, August
16, 1996 and March 4, 1997, as to which I can express no opinion at this
time concerning Federal's liability (if any) or the effect of any adverse
determination upon the business, condition (financial or otherwise) or
operations of Federal or (B) the ability of Federal to perform its
obligations under the Certificate Closing Date Documents.
7. Federal is a duly certificated "air carrier" within the
meaning of the Transportation Code, and a holder of a certificate under
Sections 41102(a) and 41103 of the Transportation Code, and an "air carrier
operating certificate" issued under Chapter 447 of the Transportation Code
for aircraft capable of carrying ten (10) or more individuals or 6,000
pounds or more of cargo, and each such certificate is in full force and
effect.
8. Federal's principal place of business and chief
executive office (as such term is defined in the Uniform Commercial Code in
effect in the State of Tennessee) are located at 2005 Corporate Avenue,
Memphis, Shelby County, Tennessee.
9. Federal is not, and is not directly or indirectly
controlled by or acting on behalf of any Person which is, an "investment
company" within the meaning of the Investment Company Act of 1940, as
amended.
The opinions expressed in paragraph 3 above as to the
enforceability of the Certificate Closing Date Documents to which Federal
is a party are based upon the assumption for purposes of such opinions and
without independent analysis that, notwithstanding the respective choice of
laws clauses in the Certificate Closing Date Documents, the governing law
with respect to each of the Certificate Closing Date Documents is identical
in all relevant respects to the law of the State of Tennessee. Insofar as
the foregoing opinion relates to the enforceability of any instrument, such
enforceability is subject to applicable bankruptcy, insolvency and other
similar laws affecting the enforcement of creditors' rights generally
(whether such enforceability is considered in a proceeding in equity or at
law). The enforceability of the remedies provided under the Lease may also
be limited by applicable laws which may affect the remedies provided
therein but which do not in my opinion affect the validity of the Lease or
make such remedies inadequate for the practical realization of the benefits
intended to be provided thereby.
I do not express any opinion as to matters governed by any
law other than the Federal laws of the United States of America, the
corporation law of the State of Delaware and the laws of the State of
Tennessee.
This opinion is delivered to you solely for your use in
connection with the transaction described herein, and may not be used for
any other purpose, and may not be relied upon by any other person, without
my prior written consent.
George W. Hearn
SCHEDULE A
Owner Trustee
State Street Bank and Trust Company
of Connecticut, National Association
Two International Place
4th Floor
Boston, Massachusetts 02110
Indenture Trustee, Pass Through Trustee & Subordination Agent
First Security Bank, National Association
79 South Main Street
Salt Lake City, Utah 84111
Owner Participant
PMCC Leasing Corporation
200 First Stamford Place
Stamford, Connecticut 06902
Underwriters
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
First Chicago Capital Markets, Inc.
Corporate Securities
One First National Plaza
Chicago, Illinois 60670
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
J.P. Morgan & Co.
60 Wall Street
New York, New York 10260
Liquidity Provider
Kredietbank N.V., New York Branch
125 West 55th Street
New York, New York 10019
EXHIBIT A(1)(a)(ii)
[Letterhead of Federal Express]
[Delivery Date]
To the Addressees Listed on Schedule A Attached
Re: Federal Express Corporation Trust No. N672FE
Ladies and Gentlemen:
I am the Vice President - Law of Federal Express
Corporation, a Delaware corporation ("Federal"), and am familiar with the
transactions contemplated by the Participation Agreement (Federal Express
Corporation Trust No. N672FE), dated as of May 1, 1997 (the "Participation
Agreement"), among Federal, as Lessee, PMCC Leasing Corporation, as Owner
Participant, State Street Bank and Trust Company of Connecticut, National
Association, not in its individual capacity, except as otherwise stated,
but solely as Owner Trustee, and First Security Bank, National Association,
not in its individual capacity, except as otherwise stated, but solely as
Indenture Trustee, Pass Through Trustee and Subordination Agent, relating
to the Aircraft. This opinion is being delivered pursuant to Section
4.02(d)(i) of the Participation Agreement. Capitalized terms not otherwise
defined herein have the meanings assigned thereto in the Participation
Agreement.
The Participation Agreement provides, among other things,
for the financing on the Delivery Date of a portion of the Owner Trustee's
payment of the Purchase Price of one Airbus A300F4-605R aircraft (the
"Aircraft"), using the proceeds from the public offering of the Pass
Through Certificates. Three Classes of Pass Through Certificates were
issued by three Pass Through Trusts formed to acquire, among other
securities, the Certificates bearing a particular interest rate and having
a particular Maturity that were issued under the Indenture, as supplemented
by the related Indenture and Security Agreement Supplement.
In connection with the opinions expressed below, I have
examined or caused to be examined by attorneys under my supervision,
executed counterparts of the Operative Agreements, the Pass Through
Agreement and each Series Supplement (the "Transaction Agreements"). We
have relied upon originals or copies, certified or otherwise identified to
our satisfaction, of such corporate records, documents and other
instruments as in our judgment are relevant to rendering the opinions
expressed below. As to any facts material to the opinions expressed below
(other than any thereof relating to Federal), we have relied upon the
representations and warranties made in the Transaction Agreements, the
accuracy of which we have not independently investigated or verified. In
such examination, we have assumed the genuineness of all signatures (other
than the signatures of Federal) and the authenticity of all documents
submitted to us as originals and the conformity with the originals of all
documents submitted to us as copies. We have also assumed that each of the
parties to each of the Transaction Agreements, other than Federal, has full
power, authority and legal right to enter into such Transaction Agreements
and that each such Transaction Agreement has been duly authorized, executed
and delivered by each of such parties.
Based on the foregoing, it is my opinion that:
1. Federal is a corporation duly incorporated, validly
existing and in good standing under the laws of the State of Delaware, is a
"citizen of the United States" within the meaning of Section 40102(a)(15)
of the Transportation Code, and has or had, on the date of execution
thereof, the corporate power and authority to carry on its business as
currently conducted and to enter into and perform its obligations under the
Transaction Agreements to which it is a party. Federal is duly qualified
to do business and is in good standing in the State of Tennessee and each
other state of the United States in which its operations or the nature of
its business requires Federal to so qualify, except where the failure to so
qualify would not have a material adverse impact on Federal or its
business.
2. Federal possesses all necessary certificates,
franchises, licenses, permits, rights and concessions and consents which
are material to the operation of the routes flown by it and the conduct of
its business and operations as currently conducted, and each such
certificate, franchise, license, permit, right and concession and consent
is in full force and effect.
3. Each of the Transaction Agreements to which Federal is a
party has or had, on the date of execution thereof, been duly authorized,
executed and delivered by Federal and each constitutes the legal, valid and
binding obligation of Federal enforceable against Federal in accordance
with its terms.
4. Neither the execution and delivery by Federal of the
Transaction Agreements to which Federal is a party, nor the consummation of
any of the transactions by Federal contemplated thereby, nor the
performance of the obligations thereunder by Federal, did at the time of
execution and delivery, or does presently (a) require any stockholder
approval or violate the certificate of incorporation or by-laws of Federal
or (b) conflict with or contravene the provisions of, or constitute a
default under, or result in the creation of any Lien (other than Liens
permitted under Section 6.01(a) of the Lease) upon the property of Federal
under any law, governmental rule or regulation, or the charter or bylaws of
Federal or any order, writ, injunction or decree of any court or
governmental authority against Federal or by which any of its properties
may be bound or any indenture, mortgage, contract or other agreement known
to me to which Federal is a party or by which it may be bound or, require
the approval or consent of any trustee or the holders of any indebtedness
or obligations of Federal.
5. Neither the execution and delivery by Federal of the
Transaction Agreements to which it is a party, nor the consummation of any
transactions by Federal contemplated thereby, nor the performance of the
obligations thereunder by Federal, did or does, as the case may be, (a)
require the consent or approval of, the giving of notice to, or (except as
described or contemplated in the Participation Agreement and the Lease, all
of which were or are required to be performed on or prior to the Delivery
Date and which were or shall have been accomplished on or prior to the
Delivery Date) the registration with, or the taking of any other action in
respect of, the Aeronautics Authority, the Securities and Exchange
Commission or any other authority or agency of the federal government or of
the State of Tennessee other than (i) the registration of the issuance and
sale of the Pass Through Certificates under the Securities Act, (ii)
compliance with the securities laws of each applicable state and (iii) the
filings and recordings referred to in paragraph 7 below, or (b) contravene
any judgment or order applicable to or binding on Federal or any law or
governmental rule or regulation of the United States or of the State of
Tennessee.
6. There is no pending, or to my knowledge, threatened
action or proceeding before any court or administrative agency which
individually (or in the aggregate in the case of any group of related
lawsuits) (i) is expected to have a material adverse effect on (A) the
financial condition of Federal, except for the matters described (a) under
"Legal Proceedings" in Federal's Annual Report on Form 10-K for the fiscal
year ended May 31, 1996 (as updated by Note 7 to the financial statements
included in Federal's Quarterly Reports on Form 10-Q for the fiscal
quarters ended August 31, 1996, November 30, 1996 and February 28, 1997)
and (b) in Federal's Current Reports on Form 8-K dated June 7, 1996, August
16, 1996 and March 4, 1997, as to which I can express no opinion at this
time concerning Federal's liability (if any) or the effect of any adverse
determination upon the business, condition (financial or otherwise) or
operations of Federal or (B) the ability of Federal to perform its
obligations under the Transaction Agreements, or (ii) involves the
Aircraft.
7. Except for the registration in the Owner Trustee's name
of the Aircraft pursuant to the Transportation Code, and except for the
filing and, where appropriate, recording, pursuant to the Transportation
Code of (A) AVSA's FAA Bill of Sale, (B) the Trust Agreement, (C) the
Lease (with the Lease Supplement covering the Aircraft, the Indenture and
the Indenture and Security Agreement Supplement covering the Aircraft
attached as exhibits) and (D) the Indenture (with the Indenture and
Security Agreement Supplement covering the Aircraft attached as an
exhibit), no further action, including any filing or recording of any
document is necessary or advisable in order to establish and perfect the
Owner Trustee's title to and interest in the Aircraft as against Federal
and any third parties, or to perfect the first mortgage lien on the
Aircraft in favor of the Indenture Trustee in each case with respect to
such portion of the Aircraft as is covered by the recording system
established by the Transportation Code.
8. Federal is a duly certificated "air carrier" within the
meaning of the Transportation Code, and a holder of a certificate under
Sections 41102(a) and 41103 of the Transportation Code, and an "air carrier
operating certificate" issued under Chapter 447 of the Transportation Code
for aircraft capable of carrying ten (10) or more individuals or 6,000
pounds or more of cargo, and each such certificate is in full force and
effect.
9. On the date hereof the Owner Trustee received good and
valid title to the Aircraft free and clear of all Liens on file with the
FAA, except for Liens permitted under Section 6.01(a) of the Lease.
10. Federal's principal place of business and chief
executive office (as such term is defined in the Uniform Commercial Code in
effect in the State of Tennessee) are located at 2005 Corporate Avenue,
Memphis, Shelby County, Tennessee.
11. Federal is not, and is not directly or indirectly
controlled by or acting on behalf of any Person which is, an "investment
company" within the meaning of the Investment Company Act of 1940, as
amended.
The opinions expressed in paragraph 3 above as to the
enforceability of the Transaction Agreements to which Federal is a party
are based upon the assumption for purposes of such opinions and without
independent analysis that, notwithstanding the respective choice of laws
clauses in the Transaction Agreements, the governing law with respect to
each of the Transaction Agreements is identical in all relevant respects to
the law of the State of Tennessee. Insofar as the foregoing opinion
relates to the enforceability of any instrument, such enforceability is
subject to applicable bankruptcy, insolvency and other similar laws
affecting the enforcement of creditors' rights generally (whether such
enforceability is considered in a proceeding in equity or at law). The
enforceability of the remedies provided under the Lease may also be limited
by applicable laws which may affect the remedies provided therein but which
do not in my opinion affect the validity of the Lease or make such remedies
inadequate for the practical realization of the benefits intended to be
provided thereby.
I do not express any opinion as to matters governed by any
law other than the Federal laws of the United States of America, the
corporation law of the State of Delaware and the laws of the State of
Tennessee.
As to the matters referred to in paragraphs 5, 7 and 9, I
have relied on the opinion of Daugherty, Fowler & Peregrin of even date
herewith, to the extent such matters are addressed in such counsel's
opinion and subject to the assumptions and qualifications expressed
therein.
This opinion is delivered to you solely for your use in
connection with the transaction described herein, and may not be used for
any other purpose, and may not be relied upon by any other person, without
my prior written consent.
George W. Hearn
SCHEDULE A
Owner Trustee
State Street Bank and Trust Company
of Connecticut, National Association
Two International Place
4th Floor
Boston, Massachusetts 02110
Indenture Trustee, Pass Through Trustee & Subordination Agent
First Security Bank, National Association
79 South Main Street
Salt Lake City, Utah 84111
Owner Participant
PMCC Leasing Corporation
200 First Stamford Place
Stamford, Connecticut 06902
Underwriters
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
First Chicago Capital Markets, Inc.
Corporate Securities
One First National Plaza
Chicago, Illinois 60670
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
J.P. Morgan & Co.
60 Wall Street
New York, New York 10260
Liquidity Provider
Kredietbank N.V., New York Branch
125 West 55th Street
New York, New York 10019
EXHIBIT A(1)(b)(i)
[Letterhead of Davis Polk & Wardwell]
[Certificate Closing Date]
To Each of the Parties named on Schedule A Hereto
Re: Federal Express Corporation Trust No. N672FE
Ladies and Gentlemen:
We have acted as special counsel for Federal Express
Corporation, a Delaware corporation ("Federal Express"), in connection with
the transactions contemplated by the Participation Agreement (Federal Express
Corporation Trust No. N671FE), dated as of May 1, 1997 (the "Participation
Agreement"), among Federal Express, as Lessee, PMCC Leasing Corporation, as
Owner Participant, State Street Bank and Trust Company of Connecticut,
National Association, not in its individual capacity, except as otherwise
stated, but solely as Owner Trustee, and First Security Bank, National
Association, not in its individual capacity, except as otherwise stated, but
solely as Indenture Trustee, Pass Through Trustee and Subordination Agent,
relating to the Aircraft. This opinion is being delivered pursuant to Section
4.01(k)(v) of the Participation Agreement. Capitalized terms not otherwise
defined herein have the meanings assigned thereto in the Participation
Agreement.
The Participation Agreement provides, among other things, for
the financing on the Delivery Date of a portion of the Owner Trustee's payment
of the Purchase Price of one Airbus A300F4-605R Aircraft using the proceeds
from the public offering of the Pass Through Certificates. On the Certificate
Closing Date, three Classes of Pass Through Certificates will be issued by
separate Pass Through Trusts, each formed to acquire, among other securities,
the Certificates bearing a particular interest rate and having a particular
Maturity that will be issued under the Indenture.
In connection with the opinions expressed below, we have
examined executed counterparts of the Operative Agreements, the Pass Through
Certificates, the Pass Through Agreement and each Series Supplement (the
"Certificate Closing Date Documents") and the forms of the Operative
Agreements to be delivered on the Delivery Date. We have also examined
originals, or copies certified to our satisfaction, of such other agreements,
documents, certificates and statements of governmental officials and corporate
officers as we have deemed necessary or advisable as a basis for such
opinions. In such examination, we have assumed the genuineness of all
signatures and the authenticity of all documents submitted to us as originals
and the conformity with the originals of all documents submitted to us as
copies.
As to any facts material to our opinions expressed below, we
have, with your consent, relied on the representations and warranties made in
or pursuant to the Participation Agreement and the other documents referred to
therein, the accuracy of which we have not independently verified. In
addition, we have, when relevant facts were not independently established by
us, relied, to the extent we deemed such reliance proper, upon certificates of
public officials and certificates, telegrams and other written or telephoned
statements of officers of the parties referred to herein.
Based on the foregoing, it is our opinion that:
1. Assuming (i) the due authorization, execution and
delivery of the Certificate Closing Date Documents by each of the parties
to each such document (other than Federal Express), (ii) each such party
has full power and legal right to enter into and perform its respective
obligations under the Certificate Closing Date Documents, (iii) that the
execution, delivery and performance of each of the Certificate Closing Date
Documents by each of the parties thereto will not violate the respective
parties' constituent documents, (iv) the due authorization, execution,
issuance and delivery by the Owner Trustee, and the due authentication by
the Indenture Trustee, of the Certificates to be issued under the Indenture
in accordance with the terms of the Indenture, (v) the due authorization,
execution, issuance, delivery and authentication by the Pass Through
Trustee of the Pass Through Certificates to be issued under the Pass
Through Agreement and the Series Supplement relating to such Pass Through
Certificates, in each case in accordance with the terms of the Pass Through
Agreement and such Series Supplement, and (vi) that the form of each
Certificate Closing Date Document is in compliance with all applicable laws
and governmental rules and regulations (other than the laws of the United
States and the State of New York), then: (A) to the extent governed by New
York law, each Certificate Closing Date Document in form constitutes a
legal, valid and binding agreement of each party thereto enforceable
against each such party in accordance with its terms; (B) the Indenture
creates, for the benefit of the Holders, the security interest in the Trust
Indenture Estate that it purports to create, except that no opinion is
given with respect to perfection of such security interest on the date
hereof; (C) the Certificates, when issued to and acquired by the Pass
Through Trustee, will be legal, valid and binding obligations of the Owner
Trustee enforceable against the Owner Trustee in accordance with their
terms and the terms of the Indenture and will be entitled to the benefits
of the Indenture, including the benefit of the security interest created
thereby, except that no opinion is given with respect to perfection of such
security interest on the date hereof; (D) the Pass Through Certificates,
when issued to and acquired by the Underwriters in accordance with the
Underwriting Agreement, will be legal, valid and binding obligations of the
Pass Through Trustee enforceable against the Pass Through Trustee in
accordance with their terms and will be entitled to the benefits of the
Pass Through Agreement and the Series Supplement relating thereto; and (E)
the beneficial interest of the Owner Participant under the Trust Agreement
in and to the properties which are part of the Trust Indenture Estate is
subject, to the extent provided in the Indenture, to the Lien of the
Indenture in favor of the Holders.
2. (a) Each of the Certificate Closing Date Documents to
which Federal Express is a party has been duly authorized, executed and
delivered by Federal Express. Each of the Operative Agreements to which
Federal Express is to be a party and which are to be delivered on the
Delivery Date has been authorized by Federal Express.
(b) The execution, delivery and performance by Federal
Express of each of the Certificate Closing Date Documents to which Federal
Express is a party do not, or did not on the date of execution thereof,
violate, and fully comply, or did fully comply on the date of execution
thereof, with, any laws and governmental rules and regulations of the State
of New York that may be applicable to Federal Express. The opinion set
forth in this paragraph 2(b) is rendered without regard to the taking of
any action or the conduct of any other business by Federal Express in the
State of New York other than the transactions contemplated by the
Certificate Closing Date Documents.
3. The execution, delivery and performance of the
Certificate Closing Date Documents (other than the Certificates) by the
Owner Trustee in its individual or trust capacity, as the case may be, and
the issuance, execution, delivery and performance of the Certificates by
the Owner Trustee in its trust capacity do not violate, and fully comply
with, any laws and governmental rules and regulations of the State of New
York that may be applicable to the Owner Trustee in its individual or trust
capacity, as the case may be. The opinion set forth in this paragraph 3 is
rendered without regard to the effect, if any, on such issuance (in the
case of the Certificates), execution, delivery or performance, of the
taking of any action, the conduct of any business or the exercise of any
other powers by State Street Bank and Trust Company of Connecticut,
National Association in its individual or trust capacity in the State of
New York not related to the transactions contemplated by the Certificate
Closing Date Documents. We have assumed that State Street Bank and Trust
Company of Connecticut, National Association has made the filings necessary
to comply with Section 131.3 of the Banking Law of the State of New York,
however we express no opinion as to whether State Street Bank and Trust
Company of Connecticut, National Association is required to comply with
said Section 131.3.
4. It is not necessary, in connection with the creation of
the beneficial interest of the Owner Participant in the Trust Indenture Estate
under the circumstances contemplated by the Participation Agreement to
register such beneficial interest under the Securities Act of 1933, as
amended, or to qualify the Trust Agreement under the Trust Indenture Act of
1939, as amended.
The foregoing opinions are subject to the following
qualifications:
(a) We have relied, with your consent, without independent
investigation and verification and subject to the assumptions and
qualifications contained therein, upon the opinion of George W.
Hearn, Vice President - Law of Federal Express to be delivered to
you and dated the date hereof, for purposes of the matters covered
thereby.
(b) We are qualified to practice law in the State of New York,
and we do not purport to be experts on, or to express any opinion
herein concerning, any laws other than the laws of the State of New
York, the laws of the United States and the General Corporation Law
of the State of Delaware.
(c) The opinion contained in paragraph 1(A) above as to
enforceability is subject to (i) applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement
of creditors' rights generally and (ii) general principles of equity
which may affect the remedies provided in the agreements referred to
in said opinions, which laws and principles, however, do not in our
opinion make the remedies provided in said agreements inadequate for
the practical realization of the benefits of the security intended to
be provided thereby.
(d) This opinion is rendered solely to you at Federal
Express's request in connection with the above matter. This
opinion may not be relied upon by you for any other purpose or
relied upon by any other Person without our prior written consent.
Very truly yours,
Davis Polk & Wardwell
SCHEDULE A
Lessee
Federal Express Corporation
2007 Corporate Avenue
Memphis, Tennessee 38132
Owner Trustee
State Street Bank and Trust Company
of Connecticut, National Association
Two International Place
4th Floor
Boston, Massachusetts 02110
Indenture Trustee, Pass Through Trustee & Subordination Agent
First Security Bank, National Association
79 South Main Street
Salt Lake City, Utah 84111
Owner Participant
PMCC Leasing Corporation
200 First Stamford Place
Stamford, Connecticut 06902
Underwriters
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
First Chicago Capital Markets, Inc.
Corporate Securities
One First National Plaza
Chicago, Illinois 60670
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
J.P. Morgan & Co.
60 Wall Street
New York, New York 10260
Liquidity Provider
Kredietbank N.V., New York Branch
125 West 55th Street
New York, New York 10019
EXHIBIT A(1)(b)(ii)
[Letterhead of Davis Polk & Wardwell]
[Delivery Date]
To Each of the Parties named on Schedule A Hereto
Re: Federal Express Corporation Trust No. N672FE
Ladies and Gentlemen:
We have acted as special counsel for Federal Express
Corporation, a Delaware corporation ("Federal Express"), in connection with
the transactions contemplated by the Participation Agreement (Federal Express
Corporation Trust No. N672FE), dated as of May 1, 1997 (the "Participation
Agreement"), among Federal Express, as Lessee, PMCC Leasing Corporation, as
Owner Participant, State Street Bank and Trust Company of Connecticut,
National Association, not in its individual capacity but solely as Owner
Trustee, and First Security Bank, National Association, not in its individual
capacity, except as otherwise stated, but solely as Indenture Trustee, Pass
Through Trustee and Subordination Agent, relating to the Aircraft. This
opinion is being delivered pursuant to Section 4.02(d)(ii) of the
Participation Agreement. Capitalized terms not otherwise defined herein have
the meanings assigned thereto in the Participation Agreement.
The Participation Agreement provides, among other things, for
the financing on the Delivery Date of the Owner Trustee's payment of a portion
of the Purchase Price of one Airbus A300F4-605R Aircraft (the "Aircraft") using
the proceeds from the public offering of the Pass Through Certificates. On the
Certificate Closing Date, three Classes of Pass Through Certificates were
issued by separate Pass Through Trusts, each formed to acquire, among other
securities, the Certificates bearing a particular interest rate and having a
particular Maturity issued under the Indenture. The Aircraft is to be leased
to Federal Express by the Owner Trustee pursuant to the Lease and subjected to
the Lien of the Indenture, and is to be delivered by the Owner Trustee to the
Lessee on this date, and in connection with the delivery of the Aircraft, the
Owner Trustee and Federal Express will execute and deliver the Lease
Supplement, and the Owner Trustee will execute and deliver the Indenture and
Security Agreement Supplement.
In connection with the opinions expressed below, we have
examined executed counterparts of the Operative Agreements, the Pass Through
Certificates, the Pass Through Agreement and each Series Supplement (the
"Transaction Agreements"). We have also examined originals, or copies
certified to our satisfaction, of such other agreements, documents,
certificates and statements of governmental officials and corporate officers
as we have deemed necessary or advisable as a basis for such opinions. In such
examination, we have assumed the genuineness of all signatures and the
authenticity of all documents submitted to us as originals and the conformity
with the originals of all documents submitted to us as copies.
As to any facts material to our opinions expressed below, we
have, with your consent, relied on the representations and warranties made in
or pursuant to the Participation Agreement and the other documents referred to
therein, the accuracy of which we have not independently verified. In
addition, we have, when relevant facts were not independently established by
us, relied, to the extent we deemed such reliance proper, upon certificates of
public officials and certificates, telegrams and other written or telephoned
statements of officers of the parties referred to herein.
Based on the foregoing, it is our opinion that:
1. With respect to that portion, if any, of the Aircraft
and the other property included in the Lessor's Estate as may not be
covered by the recording system established by the FAA pursuant to Section
44107 of the Transportation Code, no filing or recording of any document or
other action was or is necessary in order to establish the Owner Trustee's
title thereto and interest therein as against Federal Express and any third
parties.
2. Subject to execution and delivery of the Lease
Supplement and the Indenture and Security Agreement Supplement for the
Aircraft and to the registration of the Aircraft with the FAA in the name
of the Owner Trustee, the Lease, as supplemented, will create a valid
leasehold interest in the Aircraft, the entitlement thereof to the benefits
of recordation under the Transportation Code being subject to the due and
timely filing and, where appropriate, recording of (A) AVSA's FAA Bill of
Sale, (B) the Trust Agreement, (C) the Lease (with the Lease Supplement
covering the Aircraft, the Indenture and the Indenture and Security
Agreement Supplement covering the Aircraft attached as exhibits) and (D)
the Indenture (with the Indenture and Security Agreement Supplement
covering the Aircraft attached as an exhibit), pursuant to the
Transportation Code, and assuming that at the time of such filing no other
documents relating to the Aircraft have been filed pursuant to the
Transportation Code.
3. Assuming (i) the due authorization, execution and
delivery of the Transaction Agreements by each of the parties to each such
document (other than Federal Express), (ii) each such party has full power
and legal right to enter into and perform its respective obligations under
the Transaction Agreements, (iii) that the execution, delivery and
performance of each of the Transaction Agreements by each of the parties
thereto will not violate the respective parties' constituent documents,
(iv) the due authorization, execution, issuance and delivery by the Owner
Trustee, and the due authentication by the Indenture Trustee, of the
Certificates issued under the Indenture in accordance with the terms of the
Indenture, (v) the due authorization, execution, issuance, delivery and
authentication by the Pass Through Trustee of the Pass Through Certificates
issued under the Pass Through Agreement and the Series Supplement relating
to such Pass Through Certificates, in each case in accordance with the
terms of the Pass Through Agreement and such Series Supplement, and (vi)
that the form of each Transaction Agreement is in compliance with all
applicable laws and governmental rules and regulations (other than the laws
of the United States and the State of New York), then: (A) to the extent
governed by New York law, each Transaction Agreement in form constitutes a
legal, valid and binding agreement of each party thereto enforceable
against each such party in accordance with its terms; (B) the Indenture
creates, for the benefit of the Holders, the security interest in the Trust
Indenture Estate that it purports to create; (C) the Certificates are
legal, valid and binding obligations of the Owner Trustee enforceable
against the Owner Trustee in accordance with their terms and the terms of
the Indenture and are entitled to the benefits of the Indenture, including
the benefit of the security interest created thereby; and (D) the
beneficial interest of the Owner Participant under the Trust Agreement in
and to the properties which are part of the Trust Indenture Estate is
subject, to the extent provided in the Indenture, as supplemented by the
Indenture and Security Agreement Supplement, to the Lien of the Indenture
in favor of the Holders. The opinions set forth in this paragraph 3 are
subject to the due filing and recording, where appropriate, with the FAA of
the documents referred to in paragraph 2 above.
4. (a) Each of the Transaction Agreements to which Federal
Express is a party has been duly authorized, executed and delivered by Federal
Express.
(b) The execution, delivery and performance by Federal Express
of each of the Transaction Agreements to which Federal Express is a party do
not, or did not on the date of execution thereof, violate, and fully comply,
or did fully comply on the date of execution thereof, with, any laws and
governmental rules and regulations of the State of New York that may be
applicable to Federal Express. The opinion set forth in this paragraph 4(b)
is rendered without regard to the taking of any action or the conduct of any
other business by Federal Express in the State of New York other than the
transactions contemplated by the Transaction Agreements.
5. The execution, delivery and performance of the
Transaction Agreements (other than the Certificates) by the Owner Trustee
in its individual or trust capacity, as the case may be, and the issuance,
execution, delivery and performance of the Certificates by the Owner
Trustee in its trust capacity do not violate, and fully comply with, any
laws and governmental rules and regulations of the State of New York that
may be applicable to the Owner Trustee in its individual or trust capacity,
as the case may be. The opinion set forth in this paragraph 5 is rendered
without regard to the effect, if any, on such issuance (in the case of the
Certificates), execution, delivery or performance, of the taking of any
action, the conduct of any business or the exercise of any other powers by
State Street Bank and Trust Company of Connecticut, National Association in
its individual or trust capacity in the State of New York not related to
the transactions contemplated by the Transaction Agreements. We have
assumed that State Street Bank and Trust Company of Connecticut, National
Association has made the filings necessary to comply with Section 131.3 of
the Banking Law of the State of New York, however we express no opinion as
to whether State Street Bank and Trust Company of Connecticut, National
Association is required to comply with said Section 131.3.
6. All the properties which are part of the Trust Indenture
Estate (including all right, title and interest of the Owner Trustee pledged
and mortgaged by it pursuant to the Indenture in and to the Aircraft and the
Lease) have been pledged and mortgaged with the Indenture Trustee as part of
the Trust Indenture Estate (subject to the due filing and, where appropriate,
recording of those documents referred to in paragraph 2 above and the
financing statement referred to in Section 4.02(f) of the Participation
Agreement), and the beneficial interest of the Owner Participant under the
Trust Agreement in and to such properties are subject, to the extent provided
in the Indenture, to the Lien of the Indenture in favor of the Holders of the
Certificates issued and to be issued under the Indenture.
7. The Indenture and Security Agreement Supplement, pursuant
to the Granting Clause of the Indenture, creates, as security for the
Certificates duly issued and to be issued under the Indenture, the first
priority security interest in the Aircraft it purports to create, the
perfection and rank thereof being subject to the registration with the FAA of
the Aircraft in the name of the Owner Trustee and the due filing and, where
appropriate, recording in accordance with the Transportation Code of the
documents referred to in paragraph 2 above. We express no opinion with
respect to the status of any security interest in any portion of the Aircraft
which does not constitute an "aircraft" or "aircraft engine", as defined in
paragraphs (6) and (7) of Section 40102(a) of the Transportation Code.
8. Except for (i) the filings and recordings referred to in
paragraph 2 above, (ii) the registration of the issuance and sale of the
Pass Through Certificates under the Securities Act and (iii) compliance
with the securities laws of each applicable state, neither the execution
and delivery by Federal Express of the Participation Agreement or any other
Operative Agreement to which it is a party, nor the consummation of any of
the transactions by Federal Express contemplated thereby, requires the
consent or approval of, the giving of notice to, or the registration with,
or the taking of any other action in respect of, the Department of
Transportation, the FAA, the Securities and Exchange Commission or any
other Federal or New York State governmental authority.
9. It is not necessary, in connection with the creation of
the beneficial interest of the Owner Participant in the Trust Indenture Estate
under the circumstances contemplated by the Participation Agreement to
register such beneficial interest under the Securities Act of 1933, as
amended, or to qualify the Trust Agreement under the Trust Indenture Act of
1939, as amended.
10. The provisions of Section 1110 of the United States
Bankruptcy Code will apply to the Aircraft for the benefit of the Lessor,
as lessor under and by reason of the Lease. The Lease, including the
rights under Section 1110 of the United States Bankruptcy Code, has been
assigned to the Indenture Trustee pursuant to the Indenture as part of the
collateral for the Certificates and, as assignee, the Indenture Trustee has
the benefit of Section 1110.
The foregoing opinions are subject to the following
qualifications:
(a) We have relied, with your consent, without independent
investigation and verification and subject to the assumptions and
qualifications contained therein, upon the opinions of Daugherty,
Fowler & Peregrin and George W. Hearn, Vice President - Law of
Federal Express to be delivered to you and dated the date hereof, for
purposes of the matters covered thereby.
(b) We are qualified to practice law in the State of New York,
and we do not purport to be experts on, or to express any opinion
herein concerning, any laws other than the laws of the State of New
York, the laws of the United States and the General Corporation Law
of the State of Delaware. We express no opinion as to any matters
involving aviation law.
(c) The opinion contained in paragraph 3(A) above as to
enforceability is subject to (i) applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement
of creditors' rights generally and (ii) general principles of equity
which may affect the remedies provided in the agreements referred to
in said opinions, which laws and principles, however, do not in our
opinion make the remedies provided in said agreements inadequate for
the practical realization of the benefits of the security intended to
be provided thereby.
(d) This opinion is rendered solely to you at Federal
Express's request in connection with the above matter. This
opinion may not be relied upon by you for any other purpose or
relied upon by any other Person without our prior written consent.
Very truly yours,
Davis Polk & Wardwell
SCHEDULE A
Lessee
Federal Express Corporation
2007 Corporate Avenue
Memphis, Tennessee 38132
Owner Trustee
State Street Bank and Trust Company
of Connecticut, National Association
Two International Place
4th Floor
Boston, Massachusetts 02110
Indenture Trustee, Pass Through Trustee & Subordination Agent
First Security Bank, National Association
79 South Main Street
Salt Lake City, Utah 84111
Owner Participant
PMCC Leasing Corporation
200 First Stamford Place
Stamford, Connecticut 06902
Underwriters
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
First Chicago Capital Markets, Inc.
Corporate Securities
One First National Plaza
Chicago, Illinois 60670
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
J.P. Morgan & Co.
60 Wall Street
New York, New York 10260
Liquidity Provider
Kredietbank N.V., New York Branch
125 West 55th Street
New York, New York 10019
EXHIBIT A(2)(a)
[Letterhead of Simpson Thacher & Bartlett]
[Certificate Closing Date]
To Each of the Parties named on Schedule A Hereto
Re: Federal Express Corporation Trust No. N672FE
Ladies and Gentlemen:
We have acted as special New York counsel for (i) PMCC Leasing
Corporation ("PMCC") in connection with the transactions contemplated by the
Participation Agreement (Federal Express Corporation Trust No. N672FE), dated
as of May 1, 1997 (the "Participation Agreement"), among Federal Express
Corporation, as lessee, State Street Bank and Trust Company of Connecticut,
National Association, not in its individual capacity, except as otherwise
stated, but solely as owner trustee, PMCC, as owner participant, and First
Security Bank, National Association, not in its individual capacity, except as
otherwise stated, but solely as indenture trustee, pass through trustee and
subordination agent, and (ii) Philip Morris Capital Corporation ("Philip
Morris") in connection with the transactions contemplated by the Owner
Participant Guaranty (the "Guaranty"), dated as of May 1, 1997 from Philip
Morris to each of the beneficiaries named therein. This opinion is being
furnished to you pursuant to Section 4.01(k)(ii) of the Participation
Agreement. Capitalized terms used herein and not otherwise defined herein
shall have the meanings ascribed to them in the Participation Agreement.
We have examined executed counterparts of the Participation
Agreement, the Trust Agreement, the Tax Indemnity Agreement, the Ancillary
Agreement I and the Ancillary Agreement II (collectively, the "Owner
Participant Documents") and the Guaranty. We have made such other and further
investigations as we have deemed necessary or appropriate for purposes of this
opinion. In our examination we have assumed, with your permission, and
without independent investigation or inquiry, the genuineness of all
signatures, the authenticity of all documents submitted to us as originals and
the conformity to original documents of all documents submitted to us as
certified or photocopies and the authenticity of the originals of such latter
documents.
With your permission, we have further assumed that (i) the
Owner Participant Documents and the Guaranty have been duly authorized,
executed and delivered by each of the parties thereto, (ii) the respective
parties thereto have the power and authority to execute, deliver and
perform the Owner Participant Documents and the Guaranty, (iii) the
execution, delivery and performance of the Owner Participant Documents and
the Guaranty by the parties thereto do not and will not violate the
certificate of incorporation, by-laws or other organizations documents of
any such party or any bond, debenture, note, mortgage, indenture, lease or
other agreement or instrument to which any such party is a party or by
which any such party is bound and does and will fully comply with all laws
an regulations applicable to each such party and (iv) the Owner Participant
Documents constitute valid, legal and binding obligations of the parties
thereto (other than PMCC), enforceable against such parties (other than
PMCC) in accordance with their respective terms.
Based upon the foregoing, we are of the opinion that:
1. The Participation Agreement and the Tax Indemnity Agreement
constitute valid and legally binding obligations of PMCC enforceable against
PMCC in accordance with their respective terms.
2. The Guaranty constitutes a valid and legally binding obligation
of Philip Morris enforceable against Philip Morris in accordance with its
terms.
3. The execution, delivery and performance by PMCC of the Owner
Participant Documents will not result in any violation of any Federal or New
York statute or any order, rule or regulation issued pursuant to any New York
or Federal statute by any New York or Federal Court or governmental agency or
body having jurisdiction over PMCC.
4. The execution, delivery and performance by Philip Morris of
the Guaranty will not result in any violation of any Federal or New York
statute or any order, rule or regulation issued pursuant to any New York or
Federal statute by any New York or Federal Court or governmental agency or
body having jurisdiction over Philip Morris.
5. No consent, approval, authorization, order, registration,
filing or qualification under any Federal or New York statute is required to
be obtained by PMCC for the execution, delivery and performance by PMCC of the
Owner Participant Documents.
6. No consent, approval, authorization, order, registration,
filing or qualification under any Federal or New York statute is required to
be obtained by Philip Morris for the execution, delivery and performance by
Philip Morris of the Guaranty.
Our opinions in paragraphs 1 and 2 are subject to the
effects of bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws relating to or affecting creditors'
rights generally, general equitable principles (whether considered in a
proceeding in equity or at law) and an implied covenant of good faith and
fair dealing.
We are members of the Bar of the State of New York and express
no opinion herein concerning any law other than the laws of the State of New
York.
This opinion is rendered to you in connection with the
above-described transaction. This opinion may not be relied by you for any
other purpose, or relied upon by or furnished to any other person, firm or
corporation without our prior written consent, except that the Owner
Participant may furnish a copy of this opinion to a potential transferee or
participant of the interest of such entity or otherwise as required by a
governmental authority.
Very truly yours,
Simpson Thacher & Bartlett
SCHEDULE A
Lessee
Federal Express Corporation
2007 Corporate Avenue
Memphis, Tennessee 38132
Owner Trustee
State Street Bank and Trust Company
of Connecticut, National Association
Two International Place
4th Floor
Boston, Massachusetts 02110
Indenture Trustee, Pass Through Trustee & Subordination Agent
First Security Bank, National Association
79 South Main Street
Salt Lake City, Utah 84111
Owner Participant
PMCC Leasing Corporation
200 First Stamford Place
Stamford, Connecticut 06902
Underwriters
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
First Chicago Capital Markets, Inc.
Corporate Securities
One First National Plaza
Chicago, Illinois 60670
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
J.P. Morgan & Co.
60 Wall Street
New York, New York 10260
Liquidity Provider
Kredietbank N.V., New York Branch
125 West 55th Street
New York, New York 10019
EXHIBIT A(2)(b)
[Letterhead of Philip Morris Capital Corporation]
[Certificate Closing Date]
To Each of the Parties named on Schedule A Hereto
Re: Federal Express Corporation Trust No. N672FE
Ladies and Gentlemen:
In my capacity as Assistant General Counsel and Assistant
Secretary of Philip Morris Capital Corporation, a Delaware corporation, I have
supervised corporate proceedings of (i) PMCC Leasing Corporation, a Delaware
corporation (the "Owner Participant"), in connection with the Owner
Participant's participation in the transactions contemplated by that certain
Participation Agreement (Federal Express Corporation Trust No. N672FE), dated
as of May 1, 1997 (the "Participation Agreement"), among the Owner
Participant, Federal Express Corporation, as Lessee; State Street Bank and
Trust Company of Connecticut, National Association, except as otherwise
stated, not in its individual capacity but solely as Owner Trustee; and First
Security Bank, National Association not in its individual capacity, except as
otherwise stated, but solely as Indenture Trustee, Pass Through Trustee and
Subordination Agent, and (ii) Philip Morris Capital Corporation, a Delaware
corporation (the "Guarantor"), in connection with the transactions
contemplated by the Owner Participant Guaranty (the "Guaranty"), dated as of
May 1, 1997 from Philip Morris to each of the beneficiaries named therein.
This opinion is delivered pursuant to Section 4.01(k)(ii) of the Participation
Agreement. Capitalized terms used herein but not otherwise defined herein,
shall have the respective meanings set forth in the Participation Agreement.
In connection with this opinion, I have examined originals,
or copies certified or otherwise identified to my satisfaction of the
Participation Agreement, the Trust Agreement, the Tax Indemnity Agreement,
the Ancillary Agreement I and the Ancillary Agreement II (each such
document to be hereafter referred to individually as an "Owner Participant
Document" and collectively as the "Owner Participant Documents") and the
Guaranty. I have also examined such corporate documents, records and
instruments of the Owner Participant and the Guarantor as in my judgement
are necessary or appropriate to enable me to render the opinions expressed
below. In rendering such opinions, I have relied upon the representations
and warranties contained in or made pursuant to the Owner Participant
Documents and the Guaranty and have assumed the due authorization,
execution and delivery of all documents and instruments by all parties
thereto other than the Owner Participant.
Based on the foregoing and subject to the qualifications and
matters of reliance set forth herein, I am of the opinion that:
1. The Owner Participant is a corporation duly organized,
validly existing and in good standing under the laws of the State of
Delaware, has full corporate power, authority and legal right to
carry on its business as now conducted, and is duly authorized and
empowered to execute and deliver the Owner Participant Documents and
to fulfill and comply with the terms, conditions and other provisions
thereof.
2. The Guarantor is a corporation duly organized, validly
existing and in good standing under the laws of the State of
Delaware, has full corporate power, authority and legal right to
carry on its business as now conducted, and is duly authorized and
empowered to execute and deliver the Guaranty and to fulfill and
comply with the terms, conditions and other provisions thereof.
3. The Owner Participant Documents have been duly authorized
by all necessary corporate action on the part of the Owner
Participant, and have been duly executed and delivered by the Owner
Participant.
4. The Guaranty has been duly authorized by all necessary
corporate action on the part of the Guarantor, and has been duly
executed and delivered by the Guarantor.
5. No filing with, notice to, or authorization or approval
from any governmental or public body or authority is required under
the laws of the State of New York, the laws of the United States of
America, or the General Corporation Law of the State of Delaware in
connection with the execution, delivery and performance by the Owner
Participant of the Owner Participant Documents.
6. No filing with, notice to, or authorization or approval
from any governmental or public body or authority is required under
the laws of the State of New York, the laws of the United States of
America, or the General Corporation Law of the State of Delaware in
connection with the execution, delivery and performance by the
Guarantor of the Guaranty.
7. There are no actions, suits or proceedings (whether or not
purportedly on behalf of the Owner Participant) pending or, to my
knowledge, threatened against or affecting the Owner Participant or
any property rights of the Owner Participant at law or in equity or
before any commission or other administrative agency which, either
individually or in the aggregate, could materially and adversely
affect the condition, financial or otherwise, of the Owner
Participant or its ability to perform its obligations under the Owner
Participant Documents or which would affect the legality, validity or
enforceability of such Owner Participant Documents.
8. There are no actions, suits or proceedings (whether or
not purportedly on behalf of the Guarantor) pending or, to my
knowledge, threatened against or affecting the Guarantor or any
property rights of the Guarantor at law or in equity or before any
commission or other administrative agency which, either
individually or in the aggregate, could materially and adversely
affect the condition, financial or otherwise, of the Guarantor or
its ability to perform its obligations under the Guaranty or which
would affect the legality, validity or enforceability of such
Guaranty.
9. Neither the execution and delivery of the Owner Participant
Documents, the consummation of the transactions therein contemplated
nor the fulfillment of or compliance with the terms, conditions and
other provisions thereof will conflict with, or result in any breach
of, any of the terms, conditions or provisions of (i) any law or
regulation binding upon the Owner Participant, (ii) any order,
injunction or decree of any court or governmental instrumentality
binding upon the Owner Participant, (iii) the Certificate of
Incorporation or Bylaws of the Owner Participant, or (iv) any bond,
debenture, note, mortgage indenture or other agreement or instrument
to which the Owner Participant is now a party or by which the
property of the Owner Participant may be bound.
10. Neither the execution and delivery of the Guaranty, the
consummation of the transactions therein contemplated nor the
fulfillment of or compliance with the terms, conditions and other
provisions thereof will conflict with, or result in any breach of,
any of the terms, conditions or provisions of (i) any law or
regulation binding upon the Guarantor, (ii) any order, injunction or
decree of any court or governmental instrumentality binding upon the
Guarantor, (iii) the Certificate of Incorporation or Bylaws of the
Guarantor, or (iv) any bond, debenture, note, mortgage indenture or
other agreement or instrument to which the Guarantor is now a party
or by which the property of the Guarantor may be bound.
I am a member of the bar of the State of New York, and I do
not purport to be conversant with, or to express any opinion herein
concerning, the laws of any jurisdiction other than those of the State of
New York and the United States of America and the General Corporation Law
of the State of Delaware. In addition, I express no opinion concerning the
laws of the State of New York, the United States of America or any other
jurisdiction applicable to the offering or sale of securities. Further, I
have made no investigation and express no opinion, as to any aviation law
or other laws, statutes, rules or regulations applicable due to the
particular nature of the equipment subject to the Lease.
This opinion is solely for the benefit of the addresses hereof
and their respective successors and assigns for use in connection with the
transactions contemplated by the Owner Participant Documents and may not be
relied upon by any other person or for any other purpose without my express
written consent. This opinion may be relied upon by Messrs. Simpson, Thacher
& Bartlett in rendering their opinion of even date herewith.
Very truly yours,
Nancy S. Rights
SCHEDULE A
Lessee
Federal Express Corporation
2007 Corporate Avenue
Memphis, Tennessee 38132
Owner Trustee
State Street Bank and Trust Company
of Connecticut, National Association
Two International Place
4th Floor
Boston, Massachusetts 02110
Indenture Trustee, Pass Through Trustee & Subordination Agent
First Security Bank, National Association
79 South Main Street
Salt Lake City, Utah 84111
Underwriters
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
First Chicago Capital Markets, Inc.
Corporate Securities
One First National Plaza
Chicago, Illinois 60670
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
J.P. Morgan & Co.
60 Wall Street
New York, New York 10260
Liquidity Provider
Kredietbank N.V., New York Branch
125 West 55th Street
New York, New York 10019
EXHIBIT A(3)
[Letterhead of Ray, Quinney & Nebeker]
[Certificate Closing Date]
To the Persons Listed in Schedule A Attached Hereto
Re: Federal Express Corporation Trust No. N672FE
Ladies and Gentlemen:
We have acted as special counsel to First Security Bank,
National Association, a national banking association ("First Security"), in
connection with the Participation Agreement (Federal Express Corporation
Trust No. N672FE), dated as of May 1, 1997 (the "Participation
Agreement"), among Federal Express Corporation, as Lessee, PMCC Leasing
Corporation, as Owner Participant, State Street Bank and Trust Company of
Connecticut, National Association, not in its individual capacity, except
as otherwise stated, but solely as Owner Trustee, and First Security, not
in its individual capacity, except as otherwise stated, but solely as
Indenture Trustee, Pass Through Trustee and Subordination Agent. Pursuant
to the Participation Agreement, one Airbus A300F4-605R aircraft bearing
U.S. Registration No. N672FE (the "Aircraft") is being financed. This
opinion is furnished pursuant to Section 4.01(k)(iv) of the Participation
Agreement. Capitalized terms used herein and not otherwise defined are
used as defined in the Participation Agreement, except that references
herein to any instrument shall mean such instrument as in effect on the
date hereof.
We have examined executed counterparts or copies otherwise
identified to our satisfaction of the following documents:
(a) The Participation Agreement;
(b) The Indenture;
(c) The Ancillary Agreement I;
(d) The Ancillary Agreement II:
(e) The Collateral Account Control Agreement;
(f) The Certificates; and
(g) The French Pledge Agreement;
(each of the documents identified in paragraphs (a) through (g) above are
collectively referred to as the "Indenture Trustee Documents").
We have also examined originals or copies of such other
documents, such corporate records, certificates and other statements of
governmental officials and corporate officers and other representatives of the
corporations or entities referred to herein and such other instruments as we
have deemed necessary or appropriate for the purposes of this opinion.
Moreover, as to certain facts material to the opinions expressed herein, we
have relied upon representations and warranties contained in the Indenture
Trustee Documents.
Based upon the foregoing and upon an examination of such
questions of law as we have considered necessary or appropriate, and subject
to the assumptions, exceptions and qualifications set forth below, we advise
you that, in our opinion:
1. First Security is a national banking association duly
organized and validly existing under the laws of the United States of
America holding a valid certificate to do business as a national
banking association, with banking and trust powers, and each of First
Security and the Indenture Trustee, as the case may be, has or had,
on the date of execution thereof, full corporate power, authority and
legal right to execute, deliver and perform each of the Indenture
Trustee Documents to which it is or is to be a party and to
authenticate the Certificates delivered on the Certificate Closing
Date.
2. Each of First Security and the Indenture Trustee, as the
case may be, has duly authorized, executed and delivered each
Indenture Trustee Document to which it is a party; each such document
constitutes a legal, valid and binding obligation of the Indenture
Trustee (and, to the extent set forth in the respective Indenture
Trustee Document, of First Security) enforceable against the
Indenture Trustee (and, to the extent set forth in the respective
Indenture Trustee Document, against First Security) in accordance
with its terms.
3. The Certificates issued and dated the Certificate Closing
Date have been duly authenticated and delivered by the Indenture
Trustee pursuant to the terms of the Indenture.
4. Neither the authorization, execution and delivery by the
Indenture Trustee or First Security, as the case may be, of the
Indenture Trustee Documents, nor the authentication and delivery by
the Indenture Trustee of the Certificates nor the fulfillment or
compliance by the Indenture Trustee or First Security with the
respective terms and provisions thereof nor the consummation of any
of the transactions by the Indenture Trustee or First Security, as
the case may be, contemplated thereby, requires the consent or
approval of, the giving of notice to, the registration with, or the
taking of any other action in respect of, any court or administrative
or governmental authority or agency of the State of Utah or the
United States of America governing the banking or trust powers of
First Security.
5. The execution, delivery and performance by the Indenture
Trustee or First Security, as the case may be, of each of the
Indenture Trustee Documents and the authentication and delivery of
the Certificates by the Indenture Trustee are not in violation of the
charter or by-laws of First Security or of any law, governmental
rule, or regulation of the State of Utah or the United States of
America governing the banking or trust powers of First Security or,
to our knowledge, of any indenture, mortgage, bank credit agreement,
note or bond purchase agreement, long-term lease, license or other
agreement or instrument to which it is a party or by which it is
bound or, to our knowledge, of any judgment or order of the State of
Utah or the United States of America relating to the banking or trust
powers of First Security.
6. There are no fees, taxes or other governmental charges
payable by the Owner Trustee, the Indenture Trustee (except taxes
imposed on fees payable to First Security) or the Certificate Holders
to the State of Utah or any political subdivision thereof in
connection with the execution, delivery or performance of any of the
Operative Agreements or in connection with the issuance and
acquisition of the Certificates by the Certificate Holders or the
beneficial interests of the Certificate Holders in the Trust
Indenture Estate solely because First Security) (a) is incorporated
under the laws of the State of Utah, (b) has its principal place of
business in the State of Utah, (c) performs (in its individual
capacity or as Indenture Trustee) any or all of its duties under the
Indenture Trustee Documents in the State of Utah, and (d) engages in
any activities unrelated to the transactions contemplated by the
Indenture Trustee Documents in the State of Utah. Neither the
Indenture Trustee nor the trust created under the Indenture will be
subject to any fee, tax or other governmental charge (except for
taxes imposed on fees payable to First Security) under the laws of
the State of Utah or any political subdivision thereof in existence
on the date hereof, on, based on or measured by, directly or
indirectly, the gross receipts, net income or value of the Trust
Indenture Estate solely because First Security (a) is incorporated
under the laws of the State of Utah, (b) has its principal place of
business in the State of Utah, (c) performs (in its individual
capacity or as Indenture Trustee) any or all of its duties under the
Indenture Trustee Documents in the State of Utah, and (d) engages in
any activities unrelated to the transactions contemplated by the
Indenture Trustee Documents in the State of Utah. There is no fee,
tax or other governmental charge (except for taxes imposed on fees
payable to First Security) under the laws of the State of Utah or any
political subdivision thereof in existence on the date hereof, on,
based on or measured by any payments under the Certificates by reason
of the creation of the trust under the Indenture solely because First
Security (a) is incorporated under the laws of the State of Utah, (b)
has its principal place of business in the State of Utah, (c)
performs (in its individual capacity or as Indenture Trustee) any or
all of its duties under the Indenture Trustee Documents in the State
of Utah, and (d) engages in any activities unrelated to the
transactions contemplated by the Indenture Trustee Documents in the
State of Utah. We express no opinion as to whether or not any fees,
taxes or other charges are now or hereafter may be payable by the
Owner Participant to the State of Utah or any political subdivision
thereof in connection with (a) the execution, delivery or performance
by any of the Indenture, the Participation Agreement or any of the
other Operative Agreements and (b) the making by the Owner
Participant of its investment in the Aircraft.
7. There are no actions, suits, investigations or proceedings
pending or, to our knowledge, threatened against or affecting First
Security or the Indenture Trustee, as the case may be, or any of its
properties in any court or before any administrative agency or
arbitrator, which, if adversely determined, would materially
adversely affect the ability of First Security or the Indenture
Trustee, as the case may be, to perform its obligations under any of
the Indenture Trustee Documents, and there are no pending or, to our
knowledge, threatened actions or proceedings before any court,
administrative agency or tribunal involving First Security or the
Indenture Trustee, as the case may be, in connection with the
transactions contemplated by any of the Indenture Trustee Documents.
The foregoing opinions are subject to the following
assumptions, exceptions and qualifications:
A. We are admitted to practice law in the State of Utah and we
do not hold ourselves out as being experts on the laws of any other
jurisdiction. The foregoing opinions are limited to the laws of the State of
Utah, the federal laws of the United States of America governing the banking
and trust powers of First Security and Title II of the United States Code
entitled "Bankruptcy". However, we express no opinion with respect to (i)
federal securities laws, including the Securities Act of 1933, as amended, the
Securities Exchange Act of 1934, as amended, and the Trust Indenture Act of
1939, as amended, (ii) the Federal Aviation Act of 1958, as amended and (iii)
state securities or blue sky laws. Insofar as the foregoing opinions relate
to the validity and enforceability in the State of Utah of the Certificates
and the other Indenture Trustee Documents expressed to be governed by the laws
of the State of New York, we have assumed that the laws of New York are
identical to the laws of Utah in all material respects, and that the
Certificates and such Indenture Trustee Documents constitute legal, valid,
binding and enforceable documents or instruments under such laws (as to which
we express no opinion). No opinion is expressed as to the priority of any
security interest or as to title to any part of the Trust Estate.
B. The foregoing opinions regarding enforceability of any
document or instrument, are subject to (i) applicable bankruptcy, insolvency,
moratorium, reorganization, receivership and similar laws affecting the rights
and remedies of creditors generally, and (ii) general principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or at law).
C. We have assumed the due authorization, execution and
delivery by each of the parties thereto, other than First Security and the
Indenture Trustee, of the Indenture Trustee Documents to which each is a party
and that each of such parties has the full power, authority and legal right to
execute and deliver each such document.
D. We have assumed that all signatures (other than those of
the Indenture Trustee or First Security) on documents and instruments
examined by us are genuine, that all documents and instruments submitted to
us as originals are authentic, and that all documents and instruments
submitted to us as copies conform with the originals, which facts we have
not independently verified.
E. We have assumed that the Participation Agreement and the
transactions contemplated thereby are not within the prohibitions of Section
406 of the Employee Retirement Income Security Act of 1974.
This opinion is rendered solely for your benefit and may not be
relied upon by any other person or entity for any purpose without our prior
written consent.
Very truly yours,
Ray, Quinney & Nebeker
SCHEDULE A
Lessee
Federal Express Corporation
2007 Corporate Avenue
Memphis, Tennessee 38132
Owner Trustee
State Street Bank and Trust Company
of Connecticut, National Association
Two International Place
4th Floor
Boston, Massachusetts 02110
Indenture Trustee, Pass Through Trustee & Subordination Agent
First Security Bank, National Association
79 South Main Street
Salt Lake City, Utah 84111
Owner Participant
PMCC Leasing Corporation
200 First Stamford Place
Stamford, Connecticut 06902
Underwriters
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
First Chicago Capital Markets, Inc.
Corporate Securities
One First National Plaza
Chicago, Illinois 60670
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
J.P. Morgan & Co.
60 Wall Street
New York, New York 10260
Liquidity Provider
Kredietbank N.V., New York Branch
125 West 55th Street
New York, New York 10019
EXHIBIT A(4)(a)(i)
[Letterhead of Bingham, Dana & Gould]
[Certificate Closing Date]
To Each of the Parties Listed on Schedule A Hereto
Re: Federal Express Corporation Trust No. N6720FE
Ladies and Gentlemen:
We have acted as counsel to State Street Bank and Trust
Company of Connecticut, National Association, a national banking
association in its individual capacity ("State Street") and its capacity as
Owner Trustee (the "Owner Trustee") under the Trust Agreement (Federal
Express Corporation Trust No. N672FE) dated as of May 1, 1997 between
State Street and PMCC Leasing Corporation, as Owner Participant ("Owner
Participant") (the "Trust Agreement") in connection with the transactions
contemplated by that certain Participation Agreement (Federal Express
Corporation Trust No. N672FE) dated as of May 1, 1997 (the "Participation
Agreement") by and among Federal Express Corporation (the "Lessee"); the
Owner Participant; and First Security Bank, National Association, in its
individual capacity and as Indenture Trustee (the "Indenture Trustee"),
Pass Through Trustee and Subordination Agent. Except as otherwise defined
herein, all capitalized terms used herein shall have the respective
meanings set forth in, or by reference to, the Participation Agreement.
The Owner Trustee has requested that we deliver this opinion to
you in accordance with Section 4.01 of the Participation Agreement.
Our representation of State Street has been as special counsel
for the purposes stated above. As to all matters of fact (including factual
conclusions and characterizations and descriptions of purpose, intention or
other state of mind), we have relied entirely upon (i) the representations of
the parties set forth in the Operative Agreements and (ii) certificates
delivered to us by the management of State Street and have assumed, without
independent inquiry, the accuracy of those representations and certificates.
We have examined each of the Operative Agreements to which
State Street or the Owner Trustee, as applicable is a party (the "Owner
Trustee Documents"), the Certificate of the Comptroller of the Currency
relating to State Street and originals, or copies certified or otherwise
identified to our satisfaction, of such other corporate records, documents,
certificates and other instruments as we have deemed necessary or advisable
for the purposes of rendering this opinion.
We have assumed the genuineness of all signatures (other than
those on behalf of State Street and the Owner Trustee), the conformity to the
originals of all documents reviewed by us as copies, the authenticity and
completeness of all original documents reviewed by us in original or copy form
and the legal competence of each individual executing any document (other than
on behalf of State Street and the Owner Trustee).
When an opinion set forth below is given to the best of our
knowledge, or to our knowledge, or with reference to matters of which we are
aware or which are known to us, or with another similar qualification, the
relevant knowledge or awareness is limited to the actual knowledge or
awareness of the individual lawyer in the firm that signed this opinion, the
individual lawyers in the firm who have participated directly in the specific
transactions to which this opinion relates or in the preparation of this
opinion and the partner of the firm responsible for State Street corporate
trust matters, and without any special or additional investigation undertaken
for the purposes of this opinion.
Each opinion set forth below relating to the enforceability of
any agreement or instrument against State Street, the Owner Trustee or the
Owner Participant, as applicable, is subject to the following general
qualifications:
(i) as to any agreement to which State Street or the
Owner Trustee, as applicable, is a party, we assume that such
agreement is the legal, valid and binding obligation or each other
party thereto;
(ii) except as otherwise set forth in our opinions 13
and 14 below, the enforceability of any obligation of State
Street, the Owner Trustee and the Owner Participant, may be
limited by bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium, marshaling, or other similar laws and
rules of law affecting the enforcement generally of creditors'
rights and remedies (including such as may deny giving effect to
waivers of debtors' or guarantors' rights);
(iii) no opinion is given herein as to the enforceability
of any particular provision of any of the Owner Trustee Documents
relating to remedies after default or as to the availability of any
specific or equitable relief of any kind. However, we are of the
opinion that, subject to the other limitations and qualifications
contained in this opinion, the remedies provided in the Owner Trustee
Documents, taken as a whole, are adequate for the realization of the
principal benefits or security of said agreements (except for the
economic consequences of procedural or other delay); and
(iv) the enforcement of any rights and the availability
of any specific or equitable relief of any kind may in all cases be
subject to an implied duty of good faith and to general principles of
equity (regardless of whether such enforceability or relief is
considered in a proceeding at law or in equity) and, as to any of
your rights to collateral security, will be subject to a duty to act
in a commercially reasonable manner.
Subject to the limitations set forth herein, we have made
such examination of law as we have deemed necessary for the purposes of
this opinion. The opinions expressed herein are limited solely to the
internal substantive laws of the State of Connecticut and the Federal laws
of the United States of America. No opinion is expressed herein as to the
application or effect of federal securities laws or as to the securities or
so-called "Blue Sky" laws of any state or other jurisdiction. In addition,
no opinion is expressed as to matters governed by the Transportation Code,
or by any other law, statute, rule or regulation of the United States
relating to the acquisition, ownership, registration, use, operation,
maintenance, repair, replacement or sale of or the nature of the Aircraft,
Airframe or the Engines.
We have made no examination of, and no opinion is given herein
as to the Owner Trustee's or Owner Participant's title to or other ownership
rights in, or the existence of any liens, charges or encumbrances on, or
adverse claims against, any of the Indenture Estate. We express no opinion as
to the creation, attachment, perfection or priority of any mortgage, security
interest or lien in any of the Indenture Estate.
With your permission and without investigation, with respect to
paragraphs 2, 3 and 4 below in connection with our opinion relating to the
legality, validity, binding effect of the documents there referred to, to the
extent that the laws of the State of Connecticut do not govern such documents,
we have assumed that the laws of the jurisdictions whose laws govern such
documents are not materially different from the internal substantive laws of
the State of Connecticut.
In rendering our opinion in paragraphs 12 and 13 below, we have
assumed that the Owner Participant acquired its interest in the Trust Estate
for fair consideration and in good faith without any intention to hinder,
defraud or defraud or delay the Owner Participant's creditors.
This opinion is rendered solely for the benefit of those
institutions listed on Schedule A hereto and their respective successors and
assigns in connection with the transactions contemplated by the Operative
Agreements and may not be used or relied upon by any other person or for any
other purpose.
Based upon the foregoing, we are of the opinion that:
1. State Street is a national banking association duly
organized, validly existing and in good standing with the Comptroller
of the Currency under the laws of the United States of America, is a
"citizen of the United States" within the meaning of Section
40102(a)(15) of Title 49 of the United States Code, as amended and
has full corporate power, authority and legal right to execute,
deliver and perform its obligations under the Trust Agreement and, as
Owner Trustee under the Trust Agreement, to execute, deliver and
perform its obligations under the other Owner Trustee Agreements and
to issue, execute, deliver and perform its obligations under the
Certificate.
2. State Street has duly authorized, executed, and delivered
the Participation Agreement and the Trust Agreement and the
Participation Agreement and the Trust Agreement constitute the legal,
valid and binding obligation of State Street, enforceable against it
in its individual capacity in accordance with the terms thereof.
3. The Owner Trustee is duly authorized under the Trust
Agreement to execute, deliver and perform each of the Owner Trustee
Agreements and each such Owner Trustee Agreement constitutes a legal,
valid and binding obligation of the Owner Trustee enforceable against
the Owner Trustee in accordance with its terms. The Certificate has
been duly issued, executed and delivered by the Owner Trustee,
pursuant to authorization contained in the Trust Agreement, and
assuming due authentication thereof by the Indenture Trustee,
constitutes the legal, valid and binding obligation of the Owner
Trustee enforceable against the Owner Trustee in accordance with its
terms and the terms of the Indenture; and the Certificate is entitled
to the benefits and security afforded by the Indenture in accordance
with its terms and the terms of the Indenture.
4. Assuming the due authorization, execution and delivery of
the Trust Agreement by the Owner Participant and that the Owner
Participant has the requisite corporate power and authority to enter
into and perform its obligations under the Trust Agreement, said
Trust Agreement constitutes the legal, valid and binding obligation
of the Owner Participant, enforceable against the owner Participant
in accordance with the terms thereof.
5. The Trust Agreement duly creates a legal and valid trust
under Connecticut law; the trust created by the Trust Agreement
exists for the benefit of the Owner Participant as provided therein
and creates for the benefit of the Owner Participant the interest in
the Trust Estate which the Trust Agreement by its terms purports to
create, subject however to the provisions of, and the Liens created
by, the Indenture and the Lease.
6. To the extent that the Uniform Commercial Code of the State
of Connecticut (the "UCC") is applicable, except for the Indenture
Trustee's taking possession of all monies and securities (including
instruments) constituting part of the Trust Indenture Estate, no
action, including the filing or recording of any document, is
necessary (i) to create under the UCC the security interest in the
Trust Indenture Estate (including the grant and assignment unto the
Indenture Trustee of the security interest in all estate, right,
title and interest of the Owner Trustee in, to and under the Lease
and the Participation Agreement) which the Indenture by its terms
purports to create in favor of the Indenture Trustee, and (ii) to
perfect in the State of Connecticut such security interest, except
for the filing of a UCC financing statement complying with the formal
requisites of Section 9-402 of the UCC in the office of the Division
of Corporations and Commercial Code of the State of Connecticut with
respect to the security interest, which filing has been duly
effected, and the filing of continuation statements with respect
thereto required to be filed at periodic intervals under the UCC.
7. Neither the execution, delivery or performance by the Owner
Trustee, in its individual capacity or as Owner Trustee, as the case
may be, of the Certificates or the Owner Trustee Documents, the
consummation by the Owner Trustee, in its individual capacity or as
Owner Trustee, as the case may be, of any of the transactions
contemplated thereby nor the compliance by the Owner Trustee, in its
individual capacity or as Owner Trustee, as the case may be, with any
of the terms and provisions thereof (i) requires any approval of its
stockholders, any consent or approval of or the giving of notice to
any trustees or holders of any indebtedness or obligations of it
known to us, or (ii) violates its charter documents or by-laws, or
contravenes or will contravene any provision of, or constitutes a
default under, or results in any breach of, or results in the
creation of any Lien (other than as permitted under the Operative
Agreements) upon property under, any indenture, mortgage, chattel
mortgage, deed of trust, conditional sales contract, bank loan or
credit agreement, license or other agreement or instrument, in each
case, known to us to which it is a party or by which it is bound or
contravenes any Connecticut or United States applicable law governing
the banking or trust powers of the Owner Trustee, or any judgment or
order in each case, known to us applicable to or binding on it.
8. To our knowledge, there are no proceedings or actions
pending or threatened against or affecting the Owner Trustee, in its
individual capacity or as Owner Trustee, before any governmental
authority which, individually or in the aggregate, if adversely
determined, would materially and adversely affect the ability of the
Owner Trustee, in its individual capacity or as Owner Trustee, as the
case may be, to enter into or to perform its obligations under the
Owner Trustee Documents or the Certificate.
9. No consent, approval, order or authorization of, giving of
notice to, or registration with, or taking of any other action in
respect of, any Connecticut or United States governmental authority
regulating the banking or trust powers of the Owner Trustee, in its
individual capacity, is required for the execution and delivery of,
or the carrying out by, the Owner Trustee in its individual capacity
or as Owner Trustee, as the case may be, of any of the transactions
contemplated by the Owner Trustee Documents, other than any such
consent, approval, order, authorization, registration, notice or
action as has been duly obtained, given or taken.
10. There are no fees, taxes or other charges payable by the
Owner Trustee, the Trust Estate or the trust created by the Trust
Agreement imposed by the State of Connecticut or any political
subdivision or taxing authority thereof in connection with the
execution, delivery and performance by State Street, individually or
as Owner Trustee, of the Owner Trust Documents (other than franchise
or other taxes based on or measured by any fees or compensation
received by State Street, acting as the Owner Trustee, for services
rendered in connection with the transactions contemplated by the
Operative Agreements) and, assuming that the trust created by the
Trust Agreement will not be taxable as a corporation, but, rather,
will be characterized as a grantor trust under subpart E, Part I of
Subchapter J of the Internal Revenue Code of 1986, as amended, or
will be otherwise ignored for Federal tax purposes, (i) such trust
will not be subject to any fees, taxes or other charges imposed by
the State of Connecticut or any political subdivision thereof based
on income, receipts, value or otherwise, (ii) Holders that are not
residents of or otherwise subject to tax in Connecticut will not be
subject to any taxes imposed by the State of Connecticut or any
political subdivision thereof as a result of purchasing, holding
(including receiving payments with respect to) or selling a
Certificate and (iii) assuming the Owner Participant is not a
Connecticut resident or otherwise subject to tax in Connecticut and
further assuming that the assets of the trust created by the Trust
Agreement are not deemed to be located in Connecticut, the Owner
Participant will not be subject to any taxes imposed by the State of
Connecticut or any political subdivision thereof solely as a result
of being the beneficial owner of the trust created by the Trust
Agreement.
11. To our knowledge, there exist no liens or encumbrances
affecting the right, title and interest of the Owner Trustee in and
to the Trust Estate resulting from claims against State Street not
related to the ownership of the Trust Estate or any other transaction
contemplated by the Operative Agreements.
12. All the properties which are part of the Indenture Estate
(including all right, title and interest of the Owner Trustee pledged
and mortgaged by it pursuant to the Indenture) have been pledged and
mortgaged with the Indenture Trustee as part of the Indenture Estate,
and the beneficial interest of the Owner Participant under the Trust
Agreement in and to such properties is subject, to the extent
provided in the Indenture, to the liens of the Indenture in favor of
the holders from time to time of the Certificate.
13. Neither a Connecticut court nor a Federal court applying
federal law or Connecticut law, if properly presented with the issue
and after having properly considered such issue, would permit the
Owner Participant to terminate the Trust Agreement, except as
otherwise provided therein, until the Lien of the Indenture on the
Indenture Estate has been released and until payment in full of the
principal of, and premium, if any, and interest on, the Certificates
and all other sums due the holders of the Certificates has been made.
14. Under the laws of the State of Connecticut, as long as the
Trust Agreement has not been terminated in accordance with its terms,
creditors of any person that is an Owner Participant, holders of a
lien against the assets of any such person and representatives of
creditors of any such person, such as trustees, receivers or
liquidators (whether or not any insolvency proceeding has been
commenced) (collectively the "Creditors") may acquire legal, valid
and enforceable claims and liens, as to the Trust Estate, only
against the beneficial interest of such person in the Trust Estate,
and do not have, and may not through the enforcement of such
Creditors' rights acquire, any other legal, valid, and enforceable
claim or lien against the Trust Estate.
Very truly yours,
Bingham, Dana & Gould LLP
SCHEDULE A
Lessee
Federal Express Corporation
2007 Corporate Avenue
Memphis, Tennessee 38132
Owner Trustee
State Street Bank and Trust Company
of Connecticut, National Association
Two International Place
4th Floor
Boston, Massachusetts 02110
Indenture Trustee, Pass Through Trustee & Subordination Agent
First Security Bank, National Association
79 South Main Street
Salt Lake City, Utah 84111
Owner Participant
PMCC Leasing Corporation
200 First Stamford Place
Stamford, Connecticut 06902
Underwriters
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
First Chicago Capital Markets, Inc.
Corporate Securities
One First National Plaza
Chicago, Illinois 60670
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
+J.P. Morgan & Co.
60 Wall Street
New York, New York 10260
Liquidity Provider
Kredietbank N.V., New York Branch
125 West 55th Street
New York, New York 10019
[Letterhead of Bingham, Dana & Gould]
[Certificate Closing Date]
To Each of the Parties Listed on Schedule A Hereto
Re: Trust Indenture and Security Agreement (Federal Express
Corporation Trust No. N672FE) dated as of May 1, 1997 (the
"Indenture"), between First Security Bank, National Association
(the "Indenture Trustee"), and State Street Bank and Trust
Company of Connecticut, National Association, not in its
individual capacity, but solely as Owner Trustee (the "Owner
Trustee")
Ladies and Gentlemen:
We have acted as special Connecticut counsel to the Owner
Trustee in connection with the Indenture and the Collateral Account Control
Agreement dated as of May 1, 1997 (the "Control Agreement"), among the Owner
Trustee, the Indenture Trustee and State Street Bank and Trust Company, as
Custodian (the "Custodian").
We are issuing this opinion solely in our capacity as counsel
to the Owner Trustee under the circumstances set forth in this paragraph and
solely as to the matters set forth herein. Pursuant to the Indenture, the
Owner Trustee purports to grant to the Indenture Trustee a security interest,
inter alia, in those securities and instruments, presently owned or hereafter
acquired by the Owner Trustee, that are from time to time credited to an
account numbered [*****] (the "Collateral Account") established by the Owner
Trustee with the Custodian and which securities and instruments the Owner
Trustee has directed the Custodian to identify on the books and records of the
Custodian as being subject to a security interest in favor of the Indenture
Trustee to secure the payment to the Indenture Trustee of the Owner Trustee's
obligations (the "Obligations") under the Indenture. Those securities and
instruments which the Owner Trustee has directed the Custodian to so identify
on the books of the Custodian as being subject to such security interest, and
which, at the time of reference thereto, have not been withdrawn from such
identification or the Collateral Account, are hereinafter referred to,
collectively, as the "Liquid Collateral." We have assumed with your
permission for purposes of this opinion that the Liquid Collateral consists
solely of (a) "securities", either "uncertificated securities" or
"certificated securities", as each such term is defined in Section 8-102 of
the Uniform Commercial Code as currently in effect in the State of Connecticut
(the "Connecticut UCC"), (b) "instruments" (as such term is defined in Section
9-105(1)(i) of the Connecticut UCC) and (c) "general intangibles" (as such
term is defined in Section 9-106 of the Connecticut UCC).
For purposes of this opinion, we have examined the Indenture,
the Control Agreement and such other documents and instruments as are referred
to as having been examined by us for purposes of our opinion letter dated May
___,1997, addressed to the parties listed on Schedule A hereto.
As to all matters of fact, we have examined and have relied
entirely upon the representations and warranties contained in and made
pursuant to the Indenture and the Control Agreement, without any independent
investigation of any kind.
We have assumed the genuineness of all signatures (other
than those on behalf of the Owner Trustee and the Custodian), the
conformity to the originals of all documents reviewed by us as copies, the
authenticity and completeness of all original documents reviewed by us in
original or copy form, and the legal competence of each individual
executing any document (other than on behalf of the Owner Trustee and the
Custodian).
For purposes of this opinion, we have made such examination of
law as we have deemed necessary. This opinion is limited solely to the
internal substantive laws of the State of Connecticut as applied by courts
located in the State of Connecticut and, where applicable, (i) the revised
Article 8 of the Uniform Commercial Code (with Conforming and Miscellaneous
Amendments to Articles 1, 3, 4, 5, 9 and 10) 1994 Official Text (the "Revised
Article 8") and (ii) the federal laws of the United States of America, in each
case without regard to choice of law. No opinion is given as to the choice of
law which any tribunal may apply to the transactions referred to herein.
Our opinion is further subject to the following exceptions,
qualifications and assumptions, all of which we understand to be acceptable to
you:
(a) We have assumed without any independent investigation
that each party to the transactions contemplated by the Indenture or
the Control Agreement at all times relevant thereto (other than the
Owner Trustee) was duly organized, validly existing and in good
standing under the laws of the jurisdiction in which it was
incorporated or organized, and had and has the full power, authority
and legal right under its certificate of incorporation, articles of
organization and other governing documents, corporate or other
enterprise legislation and applicable laws, as the case may be, to
execute and deliver and perform its obligations under all documents
executed by it in connection with those transactions.
(b) We have assumed without any independent investigation
(i) the due authorization, execution and delivery of each of the
Indenture and the Control Agreement by the Indenture Trustee, (ii)
that the execution, delivery and performance by the Indenture
Trustee of each of the Indenture and the Control Agreement does
not and will not conflict with, or result in a breach of, the
terms, conditions or provisions of, or result in a violation of,
or constitute a default or require any consent (other than such
consents as have been duly obtained) under, any organizational
document, any order, judgment, arbitration award or stipulation,
or any agreement, to which the Indenture Trustee is a party or is
subject or by which any of the properties or assets of the
Indenture Trustee is bound, (iii) that the Owner Trustee has
received "value," as defined under the Connecticut UCC, for the
incurrence of the Obligations, (iv) that, whenever the Custodian
receives instructions from the Owner Trustee for the Custodian to
note on its books and records that any securities or instruments
credited to the Collateral Account are to be subject to a security
interest in favor of the Indenture Trustee to secure the payment
of the Obligations, such instructions will have been duly
authorized by or on behalf of the Owner Trustee and (v) that, when
the Indenture Trustee is to act in connection with any of the
transactions contemplated by the Indenture, it is acting in its
capacity as Indenture Trustee.
(c) We have made no examination of, and no opinion is given
herein as to, the Owner Trustee's title to or other ownership rights
in, or the existence of any liens, charges or encumbrances on, or
adverse claims against, the Liquid Collateral, other than the
security interest in favor of the Indenture Trustee as contemplated
by the Indenture and the Control Agreement, and have assumed that the
Owner Trustee has, or at the time of any purported attachment of the
security interest in the relevant Liquid Collateral will have, rights
in the Liquid Collateral.
(d) The perfection and the effect of perfection and
non-perfection of a security interest in the Liquid Collateral that
comprises "uncertificated securities" are, pursuant to Section
9-103(6) of the Connecticut UCC, and the effectiveness of
registration by the issuer and the rights and duties of the issuer
with respect to the registration of transfer, pledge or release of an
"uncertificated security" are, pursuant to Section 8-106 of the
Connecticut UCC, in each case, governed by the laws of the respective
jurisdictions of organization of the issuer or issuers of such
securities, including the conflict of laws rules of such
jurisdictions. Therefore, we express no opinion with respect to such
matters regarding "uncertificated securities" issued by issuers
organized outside of the State of Connecticut other than book-entry
Treasury securities referred to below.
(e) We point out that, pursuant to Part 357 of Title 31 of
the United States Code of Federal Regulations ("CFR"), with
respect to United States "book-entry Treasury securities"
maintained by a Federal Reserve Bank and, pursuant to other
relevant sections of the CFR, with respect to various other
securities issued or guaranteed by the federal government of the
United States or an agency thereof or a corporation sponsored
thereby and maintained by a Federal Reserve Bank, the perfection
of security interests granted by commercial, non-governmental
parties in book-entry Treasury securities, or such other federal
securities, as the case may be, held in a securities account of a
participant financial institution, such as the Custodian,
maintaining such account with such Federal Reserve Bank, will be
governed by the law of the jurisdiction determined in accordance
with Section 357.11 of Title 31 of the CFR. If that jurisdiction
has not adopted Revised Article 8, then such jurisdiction will be
deemed to have adopted Revised Article 8 for purposes of
determining the law governing such perfection. Accordingly,
although Revised Article 8 has not been enacted by Connecticut as
part of the Connecticut UCC, nevertheless, pursuant to Part 357 of
Title 31 of the CFR, Revised Article 8 governs the perfection of a
security interest in book-entry Treasury securities to the extent
that Connecticut law would otherwise be applicable thereto.
(f) We have also assumed that (i) any securities comprised in
the Liquid Collateral and held by Depository Trust Company or another
clearing corporation will be held by Depository Trust Company or such
other clearing corporation for the direct account of the Custodian
and not for the account of the Custodian through any other financial
intermediary, (ii) any securities comprised in the Liquid Collateral
and not constituting either (x) "certificated securities" (as defined
in Section 8-102 of the Connecticut UCC) for which the Custodian
physically holds the certificate or certificates evidencing solely
such securities, or (y) "uncertificated securities" (as defined in
Section 8-102 of the Connecticut UCC) for which the Custodian is the
registered owner on the books of the issuer solely of such
securities, will constitute, or will be held as part of, a fungible
bulk of such "securities" that are registered in the name of the
Custodian or are shown on the Custodian's account on the books of
another financial intermediary, (iii) any "certificated securities"
(as defined in Section 8-102 of the Connecticut UCC) comprised in the
Collateral, if held directly by the Custodian, will be at all times
in the physical possession of the Custodian, and any other
"instruments" (as defined in Section 9-105(1)(i) of the Connecticut
UCC) comprised in the Collateral will be at all times held directly
by and in the physical possession of the Custodian, and (iv) any
securities comprised in the Liquid Collateral consisting of
"book-entry Treasury securities" or other uncertificated federal
securities will be credited to a direct account of the Custodian with
a Reserve Bank (as such term is defined in the relevant section of
the CFR) and not for the account of the Custodian through a financial
intermediary.
(g) We do not express any opinion as to the attachment or
perfection of any security interest in (i) any securities that are
maintained with, or held on the system of, Cedel S.A., or any like
maintenance, clearing or settlement system operating outside of the
United States of America, (ii) any collateral of a type other than
"securities" or "general intangibles" (as defined in Section 9-106 of
the Connecticut UCC) or "instruments" (as defined in Section
9-105(1)(i) of the Connecticut UCC), (iii) the Collateral Account, to
the extent that the Collateral Account constitutes an asset, other
than general intangibles, separate from the property credited
thereto, (iv) any Liquid Collateral which, at the time of reference
thereto, is no longer identified as subject to a security interest
in favor of the Indenture Trustee or has otherwise been withdrawn from
the Collateral Account, or (v) any identifiable proceeds of any Liquid
Collateral (A) following the lapse of the ten day period set forth in
Section 9-306(3) of the Connecticut UCC, to the extent that such
proceeds do not constitute securities, instruments or general
intangibles in which a security interest is perfected in the manner
contemplated by this opinion, as if such proceeds were original
Liquid Collateral, (B) where such proceeds constitute securities and
in which proceeds a security interest is not perfected in the manner
contemplated by this opinion, as if such proceeds were original
collateral, or (C) where the proceeds constitute collateral which is
excluded from Article 8 or 9 of the Connecticut UCC.
(h) We express no opinion as to the priority of such security
interest over any other or competing interest in or claims against
such Liquid Collateral.
(i) We have assumed that (i) the Custodian, in the ordinary
course of business, accepts for deposit securities as a service for
its customers, maintains securities accounts in the names of such
customers reflecting ownership of or interests in such securities,
and, in regard to the transactions contemplated by the Indenture, is
acting in such capacity, (ii) all securities from time to time
credited to the Collateral Account and to be comprised in the Liquid
Collateral will have been "transferred" (within the meaning of
Section 8-313(1) of the Connecticut UCC) to the Custodian by the
issuers or prior holders of such Liquid Collateral, (iii) the records
of the Custodian indicate and will, at the time of reference thereto,
indicate that the aggregate amount of each security comprised in the
Liquid Collateral, together with all other such securities carried by
the Custodian for its customers and for its proprietary account, is
at least equal to the aggregate amount of such security carried by it
for its customers and for its proprietary account, (iv) the books and
records of the Custodian indicate and will, at the time of reference
thereto, indicate that the securities to be comprised in the Liquid
Collateral are registered on the books and records of the Custodian
as being for the beneficial account of the Owner Trustee, subject to,
as identified on such books and records, the security interest
therein in favor of the Indenture Trustee, and (v) the Custodian has
sent and, at the time of reference thereto, will have sent the
confirmations of such entries and identifications to the Indenture
Trustee and to Federal Express Corporation.
(j) In so far as our opinion relates to the enforceability
of any obligations of the Owner Trustee, the enforcement of such
obligations may be limited by bankruptcy, insolvency,
reorganization, moratorium, marshalling or other laws and rules of
law affecting the enforcement generally of creditors' rights and
remedies (including such as may deny giving effect to waivers of
debtors' or guarantors' rights); and we express no opinion as to
(i) the status under Section 548 of the Bankruptcy Code and
applicable state fraudulent conveyance laws of the obligations of
the Owner Trustee under the Indenture or interests purported to be
granted pursuant to the Indenture, (ii) the enforceability of any
particular provision of the Indenture relating to remedies after
default or as to the availability of any specific or equitable
relief of any kind (and we point out that the enforcement of any
of your rights may in all cases be subject to an implied duty of
good faith and fair dealing and to general principles of equity,
regardless of whether such enforceability is considered in a
proceeding at law or in equity, and, as to any of your rights to
collateral security, will be subject to a duty to act in a
commercially reasonable manner) or (iii) the enforceability of any
particular provision of the Indenture relating to (A) waivers of
defenses, of rights to trial by jury, or rights to object to
jurisdiction or venue and other rights or benefits bestowed by
operation of law, (B) the effect of suretyship defenses, or
defenses in the nature thereof, with respect to obligations of any
applicable guarantor, joint obligator or surety, (C) waivers of
provisions which are not capable of waiver under Sections 1-102(3)
and 9-501(3) of the Connecticut UCC, (D) the grant of powers of
attorney to the Indenture Trustee, (E) exculpation clauses,
indemnity clauses and clauses relating to releases or waivers of
unmatured claims or rights, (F) interest or other charges that may
be usurious under applicable law, or (G) the collection of
interest on overdue interest or providing for a penalty rate of
interest or late charges on overdue or defaulted obligations.
However, notwithstanding the qualification set forth in the
foregoing clause (ii), and excluding the parenthetical in that
clause, subject to the other exceptions, qualifications and
limitations set forth in this opinion (including the parenthetical
in clause (ii) and subject to the fact that there may be economic
consequences arising out of any procedural or other delay on
account of the limitation or unenforceability of any particular
provision of the Indenture relating to remedies after default,
such limitation or unenforceability does not, in our judgment,
render the provisions of the Indenture and the Control Agreement
relating to remedies after default, taken as a whole, inadequate
for the practical realization of the benefits of enforcement of a
security interest in the Liquid Collateral following the receipt
by the Custodian of an enforcement notice properly given under the
Indenture and the Control Agreement by the Indenture Trustee to
the Custodian with respect to such Liquid Collateral.
(k) With respect to property as to which the security
interest purported to be granted pursuant to the Indenture
attaches after the date hereof, we call to your attention that
Section 552 of the Bankruptcy Code limits the extent to which
assets acquired by a debtor after the commencement of a case under
the United States Bankruptcy Code may be subject to a security
interest arising from a security agreement entered into by the
debtor before the commencement of such case. We further call to
your attention that under Section 547 of the Bankruptcy Code, a
security interest that attaches within the relevant period set
forth in Section 547(b)(4) of the Bankruptcy Code may be avoidable
under certain circumstances.
Based upon and subject to the foregoing, we are of the opinion
that:
1. The Indenture Trustee has, under the terms of the
Connecticut UCC and, in the case of book-entry Treasury
securities, under the CFR, a perfected security interest in the
Liquid Collateral that constitutes "securities" (as such term is
defined in Section 8-102 of the Connecticut UCC), or "instruments"
(as defined in Section 9-105(1)(i) of the Connecticut UCC), and in
the identifiable proceeds thereof to secure the payment of the
Obligations.
2. The Indenture creates, under the terms of the Connecticut
UCC, a valid security interest in such of the Liquid Collateral that
constitutes "general intangibles" (as such term is defined in Section
9-106 of the Connecticut UCC) and in the identifiable proceeds
thereof to secure the payment of the Obligations. Upon the filing of
a financing statement on form UCC-1 pursuant to the Connecticut UCC
with the Secretary of State of the State of Connecticut naming the
Owner Trustee as Debtor and the Indenture Trustee as Secured Party
and accurately describing the Liquid Collateral and the Collateral
Account, which filing has been duly effected, such security interest
will be perfected (to the extent that the perfection of a security
interest in the Liquid Collateral can be accomplished by the filing
in Connecticut of financing statements under the Connecticut UCC).
We point out that:
(a) The effectiveness of a financing statement will lapse (i)
on the expiration of a five-year period from their dates of filing,
or (if later) five years from the last date as to which such
financing statements were effective following the proper filing of
continuation statements with respect thereto, unless continuation
statements are filed within six months prior to the expiration of the
applicable five-year period, (ii) with respect to general intangibles
in which a security interest has been perfected by the filing of a
financing statement in the jurisdiction of the location of the
debtor, for a period of more than four months after the debtor has
changed its location from that jurisdiction to a new jurisdiction
unless such security is perfected in the new jurisdiction within the
earlier to occur of the end of such four month period or the date on
which such financing statement would have otherwise lapsed, and (iii)
with respect to "investment property," under and as defined in
Revised Article 8, in which a security interest has been perfected by
the filing of a financing statement in the jurisdiction of the
location of the debtor, from the time that the debtor changes its
location from that jurisdiction to a new jurisdiction unless such
security interest is perfected in the new jurisdiction on or before
the time of such change of location.
(b) If any debtor changes its name, identity or corporate
structure such that any financing statement becomes misleading, such
financing statement will be ineffective to perfect a security
interest in any collateral acquired by such debtor more than four
months after such change.
We assume no obligation to update this opinion as a result of
any change in any fact, circumstance or statute or other rule of law
occurring after the date hereof.
This opinion is delivered to you solely in connection with the
transactions referred to herein and for your sole use and no other
person or entity may rely on this opinion without our express written
consent.
Very truly yours,
Bingham, Dana & Gould LLP
SCHEDULE A
Lessee
Federal Express Corporation
2007 Corporate Avenue
Memphis, Tennessee 38132
Owner Trustee
State Street Bank and Trust Company
of Connecticut, National Association
Two International Place
4th Floor
Boston, Massachusetts 02110
Indenture Trustee, Pass Through Trustee & Subordination Agent
First Security Bank, National Association
79 South Main Street
Salt Lake City, Utah 84111
Owner Participant
PMCC Leasing Corporation
200 First Stamford Place
Stamford, Connecticut 06902
Underwriters
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
First Chicago Capital Markets, Inc.
Corporate Securities
One First National Plaza
Chicago, Illinois 60670
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
J.P. Morgan & Co.
60 Wall Street
New York, New York 10260
Liquidity Provider
Kredietbank N.V., New York Branch
125 West 55th Street
New York, New York 10019
EXHIBIT A(4)(a)(ii)
[Letterhead of Bingham, Dana & Gould]
[Delivery Date]
To Each of the Parties Listed on Schedule A Hereto
Re: Federal Express Corporation Trust No. N672FE
Ladies and Gentlemen:
We have acted as counsel to State Street Bank and Trust
Company of Connecticut, National Association, a national banking
association in its individual capacity ("State Street") and its capacity as
Owner Trustee (the "Owner Trustee") under the Trust Agreement (Federal
Express Corporation Trust No. N672FE) dated as of May 1, 1997 between
State Street and PMCC Leasing Corporation, as Owner Participant ("Owner
Participant") (the "Trust Agreement") in connection with the transactions
contemplated by that certain Participation Agreement (Federal Express
Corporation Trust No. N672FE) dated as of May 1, 1997 (the "Participation
Agreement") by and among Federal Express Corporation (the "Lessee"); the
Owner Participant; and First Security Bank, National Association, in its
individual capacity and as Indenture Trustee (the "Indenture Trustee"),
Pass Through Trustee and Subordination Agent. Except as otherwise defined
herein, all capitalized terms used herein shall have the respective
meanings set forth in, or by reference to, the Participation Agreement.
The Owner Trustee has requested that we deliver this Opinion to
you in accordance with Section 4.02 of the Participation Agreement.
Our representation of State Street has been as special counsel
for the purposes stated above. As to all matters of fact (including factual
conclusions and characterizations and descriptions of purpose, intention or
other state of mind), we have relied entirely upon (i) the representations of
the parties set forth in the Operative Agreements and (ii) certificates
delivered to us by the management of State Street and have assumed, without
independent inquiry, the accuracy of those representations and certificates.
We have examined each of the Operative Agreements to which
State Street or the Owner Trustee, as applicable is a party (the "Owner
Trustee Documents"), the Certificate of the Comptroller of the Currency
relating to State Street and originals, or copies certified or otherwise
identified to our satisfaction, of such other corporate records, documents,
certificates and other instruments as we have deemed necessary or advisable
for the purposes of rendering this opinion.
We have assumed the genuineness of all signatures (other than
those on behalf of State Street and the Owner Trustee), the conformity to the
originals of all documents reviewed by us as copies, the authenticity and
completeness of all original documents reviewed by us in original or copy form
and the legal competence of each individual executing any document (other than
on behalf of State Street and the Owner Trustee).
When an opinion set forth below is given to the best of our
knowledge, or to our knowledge, or with reference to matters of which we are
aware or which are known to us, or with another similar qualification, the
relevant knowledge or awareness is limited to the actual knowledge or
awareness of the individual lawyer in the firm that signed this opinion, the
individual lawyers in the firm who have participated directly in the specific
transactions to which this opinion relates or in the preparation of this
opinion and the partner of the firm responsible for State Street corporate
trust matters, and without any special or additional investigation undertaken
for the purposes of this opinion.
Each opinion set forth below relating to the enforceability of
any agreement or instrument against State Street, the Owner Trustee or the
Owner Participant, as applicable, is subject to the following general
qualifications:
(i) as to any agreement to which State Street or the
Owner Trustee, as applicable, is a party, we assume that such
agreement is the legal, valid and binding obligation or each other
party thereto;
(ii) except as otherwise set forth in our opinions 13
and 14 below, the enforceability of any obligation of State
Street, the Owner Trustee and the Owner Participant, may be
limited by bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium, marshaling, or other similar laws and
rules of law affecting the enforcement generally of creditors'
rights and remedies (including such as may deny giving effect to
waivers of debtors' or guarantors' rights);
(iii) no opinion is given herein as to the
enforceability of any particular provision of any of the Owner
Trustee Documents relating to remedies after default or as to the
availability of any specific or equitable relief of any kind.
However, we are of the opinion that, subject to the other
limitations and qualifications contained in this opinion, the
remedies provided in the Owner Trustee Documents, taken as a
whole, are adequate for the realization of the principal benefits
or security of said agreements (except for the economic
consequences of procedural or other delay); and
(iv) the enforcement of any rights and the
availability of any specific or equitable relief of any kind may
in all cases be subject to an implied duty of good faith and to
general principles of equity (regardless of whether such
enforceability or relief is considered in a proceeding at law or
in equity) and, as to any of your rights to collateral security,
will be subject to a duty to act in a commercially reasonable
manner.
Subject to the limitations set forth herein, we have made
such examination of law as we have deemed necessary for the purposes of
this opinion. The opinions expressed herein are limited solely to the
internal substantive laws of the State of Connecticut and the Federal laws
of the United States of America. No opinion is expressed herein as to the
application or effect of federal securities laws or as to the securities or
so-called "Blue Sky" laws of any state or other jurisdiction. In addition,
no opinion is expressed as to matters governed by the Transportation Code,
or by any other law, statute, rule or regulation of the United States
relating to the acquisition, ownership, registration, use, operation,
maintenance, repair, replacement or sale of or the nature of the Aircraft,
Airframe or the Engines.
We have made no examination of, and no opinion is given herein
as to the Owner Trustee's or Owner Participant's title to or other ownership
rights in, or the existence of any liens, charges or encumbrances on, or
adverse claims against, any of the Indenture Estate. We express no opinion as
to the creation, attachment, perfection or priority of any mortgage, security
interest or lien in any of the Indenture Estate.
With your permission and without investigation, with respect to
paragraphs 2, 3 and 4 below in connection with our opinion relating to the
legality, validity, binding effect of the documents there referred to, to the
extent that the laws of the State of Connecticut do not govern such documents,
we have assumed that the laws of the jurisdictions whose laws govern such
documents are not materially different from the internal substantive laws of
the State of Connecticut.
In rendering our opinion in paragraphs 12 and 13 below, we have
assumed that the Owner Participant acquired its interest in the Trust Estate
for fair consideration and in good faith without any intention to hinder,
defraud or defraud or delay the Owner Participant's creditors.
This opinion is rendered solely for the benefit of those
institutions listed on Schedule A hereto and their respective successors and
assigns in connection with the transactions contemplated by the Operative
Agreements and may not be used or relied upon by any other person or for any
other purpose.
Based upon the foregoing, we are of the opinion that:
1. State Street is a national banking association duly
organized, validly existing and in good standing with the Comptroller
of the Currency under the laws of the United States of America, is a
"citizen of the United States" within the meaning of Section
40102(a)(15) of Title 49 of the United States Code, as amended and
has or had, on the date of execution thereof, full corporate power,
authority and legal right to execute, deliver and perform its
obligations under the Trust Agreement and, as Owner Trustee under the
Trust Agreement, to execute, deliver and perform its obligations
under the other Owner Trustee Agreements and to issue, execute,
deliver and perform its obligations under the Certificate.
2. State Street has or had, on the date of execution thereof,
duly authorized, executed, and delivered the Participation Agreement
and the Trust Agreement and the Participation Agreement and the Trust
Agreement constitute the legal, valid and binding obligation of State
Street, enforceable against it in its individual capacity in
accordance with the terms thereof.
3. The Owner Trustee is duly authorized under the Trust
Agreement to execute, deliver and perform each of the Owner Trustee
Agreements and each such Owner Trustee Agreement constitutes a legal,
valid and binding obligation of the Owner Trustee enforceable against
the Owner Trustee in accordance with its terms. The Certificate has
been duly issued, executed and delivered by the Owner Trustee,
pursuant to authorization contained in the Trust Agreement, and
assuming due authentication thereof by the Indenture Trustee,
constitutes the legal, valid and binding obligation of the Owner
Trustee enforceable against the Owner Trustee in accordance with its
terms and the terms of the Indenture; and the Certificate is entitled
to the benefits and security afforded by the Indenture in accordance
with its terms and the terms of the Indenture.
4. Assuming the due authorization, execution and delivery of
the Trust Agreement by the Owner Participant and that the Owner
Participant has the requisite corporate power and authority to enter
into and perform its obligations under the Trust Agreement, said
Trust Agreement constitutes the legal, valid and binding obligation
of the Owner Participant, enforceable against the owner Participant
in accordance with the terms thereof.
5. The Trust Agreement duly creates a legal and valid trust
under Connecticut law; the trust created by the Trust Agreement
exists for the benefit of the Owner Participant as provided therein
and creates for the benefit of the Owner Participant the interest in
the Trust Estate which the Trust Agreement by its terms purports to
create, subject however to the provisions of, and the Liens created
by, the Indenture and the Lease.
6. To the extent that the Uniform Commercial Code of the State
of Connecticut (the "UCC") is applicable, except for the Indenture
Trustee's taking possession of all monies and securities (including
instruments) constituting part of the Trust Indenture Estate, no
action, including the filing or recording of any document, is
necessary (i) to create under the UCC the security interest in the
Trust Indenture Estate (including the grant and assignment unto the
Indenture Trustee of the security interest in all estate, right,
title and interest of the Owner Trustee in, to and under the Lease
and the Participation Agreement) which the Indenture by its terms
purports to create in favor of the Indenture Trustee, and (ii) to
perfect in the State of Connecticut such security interest, except
for the filing of a UCC financing statement complying with the formal
requisites of Section 9-402 of the UCC in the office of the Division
of Corporations and Commercial Code of the State of Connecticut with
respect to the security interest, which filing has been duly
effected, and the filing of continuation statements with respect
thereto required to be filed at periodic intervals under the UCC.
7. Neither the execution, delivery or performance by the Owner
Trustee, in its individual capacity or as Owner Trustee, as the case
may be, of the Certificates or the Owner Trustee Documents, the
consummation by the Owner Trustee, in its individual capacity or as
Owner Trustee, as the case may be, of any of the transactions
contemplated thereby nor the compliance by the Owner Trustee, in its
individual capacity or as Owner Trustee, as the case may be, with any
of the terms and provisions thereof (i) requires any approval of its
stockholders, any consent or approval of or the giving of notice to
any trustees or holders of any indebtedness or obligations of it
known to us, or (ii) violates its charter documents or by-laws, or
contravenes or will contravene any provision of, or constitutes a
default under, or results in any breach of, or results in the
creation of any Lien (other than as permitted under the Operative
Agreements) upon property under, any indenture, mortgage, chattel
mortgage, deed of trust, conditional sales contract, bank loan or
credit agreement, license or other agreement or instrument, in each
case, known to us to which it is a party or by which it is bound or
contravenes any Connecticut or United States applicable law governing
the banking or trust powers of the Owner Trustee, or any judgment or
order in each case, known to us applicable to or binding on it.
8. To our knowledge, there are no proceedings or actions
pending or threatened against or affecting the Owner Trustee, in its
individual capacity or as Owner Trustee, before any governmental
authority which, individually or in the aggregate, if adversely
determined, would materially and adversely affect the ability of the
Owner Trustee, in its individual capacity or as Owner Trustee, as the
case may be, to enter into or to perform its obligations under the
Owner Trustee Documents or the Certificate.
9. No consent, approval, order or authorization of, giving of
notice to, or registration with, or taking of any other action in
respect of, any Connecticut or United States governmental authority
regulating the banking or trust powers of the Owner Trustee, in its
individual capacity, is required for the execution and delivery of,
or the carrying out by, the Owner Trustee in its individual capacity
or as Owner Trustee, as the case may be, of any of the transactions
contemplated by the Owner Trustee Documents, other than any such
consent, approval, order, authorization, registration, notice or
action as has been duly obtained, given or taken.
10. There are no fees, taxes or other charges payable by the
Owner Trustee, the Trust Estate or the trust created by the Trust
Agreement imposed by the State of Connecticut or any political
subdivision or taxing authority thereof in connection with the
execution, delivery and performance by State Street, individually or
as Owner Trustee, of the Owner Trust Documents (other than franchise
or other taxes based on or measured by any fees or compensation
received by State Street, acting as the Owner Trustee, for services
rendered in connection with the transactions contemplated by the
Operative Agreements) and, assuming that the trust created by the
Trust Agreement will not be taxable as a corporation, but, rather,
will be characterized as a grantor trust under subpart E, Part I of
Subchapter J of the Internal Revenue Code of 1986, as amended, or
will be otherwise ignored for Federal tax purposes, (i) such trust
will not be subject to any fees, taxes or other charges imposed by
the State of Connecticut or any political subdivision thereof based
on income, receipts, value or otherwise, (ii) Holders that are not
residents of or otherwise subject to tax in Connecticut will not be
subject to any taxes imposed by the State of Connecticut or any
political subdivision thereof as a result of purchasing, holding
(including receiving payments with respect to) or selling a
Certificate and (iii) assuming the Owner Participant is not a
Connecticut resident or otherwise subject to tax in Connecticut and
further assuming that the assets of the trust created by the Trust
Agreement are not deemed to be located in Connecticut, the Owner
Participant will not be subject to any taxes imposed by the State of
Connecticut or any political subdivision thereof solely as a result
of being the beneficial owner of the trust created by the Trust
Agreement.
11. The Owner Trustee has received such title to the Aircraft
as has been conveyed to it subject to the rights of the Owner Trustee
and the Lessee under the Lease and the security interest created
pursuant to the Indenture and the Lease; and to our knowledge, there
exist no liens or encumbrances affecting the right, title and
interest of the Owner Trustee in and to the Trust Estate resulting
from claims against State Street not related to the ownership of the
Trust Estate or any other transaction contemplated by the Operative
Agreements.
12. All the properties which are part of the Indenture Estate
(including all right, title and interest of the Owner Trustee pledged
and mortgaged by it pursuant to the Indenture) have been pledged and
mortgaged with the Indenture Trustee as part of the Indenture Estate,
and the beneficial interest of the Owner Participant under the Trust
Agreement in and to such properties is subject, to the extent
provided in the Indenture, to the liens of the Indenture in favor of
the holders from time to time of the Certificate.
13. Neither a Connecticut court nor a Federal court applying
federal law or Connecticut law, if properly presented with the issue
and after having properly considered such issue, would permit the
Owner Participant to terminate the Trust Agreement, except as
otherwise provided therein, until the Lien of the Indenture on the
Indenture Estate has been released and until payment in full of the
principal of, and premium, if any, and interest on, the Certificates
and all other sums due the holders of the Certificates has been made.
14. Under the laws of the State of Connecticut, as long as the
Trust Agreement has not been terminated in accordance with its terms,
creditors of any person that is an Owner Participant, holders of a
lien against the assets of any such person and representatives of
creditors of any such person, such as trustees, receivers or
liquidators (whether or not any insolvency proceeding has been
commenced) (collectively the "Creditors") may acquire legal, valid
and enforceable claims and liens, as to the Trust Estate, only
against the beneficial interest of such person in the Trust Estate,
and do not have, and may not through the enforcement of such
Creditors' rights acquire, any other legal, valid, and enforceable
claim or lien against the Trust Estate.
Very truly yours,
Bingham, Dana & Gould LLP
SCHEDULE A
Lessee
Federal Express Corporation
2007 Corporate Avenue
Memphis, Tennessee 38132
Owner Trustee
State Street Bank and Trust Company
of Connecticut, National Association
Two International Place
4th Floor
Boston, Massachusetts 02110
Indenture Trustee, Pass Through Trustee & Subordination Agent
First Security Bank, National Association
79 South Main Street
Salt Lake City, Utah 84111
Owner Participant
PMCC Leasing Corporation
200 First Stamford Place
Stamford, Connecticut 06902
Underwriters
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
First Chicago Capital Markets, Inc.
Corporate Securities
One First National Plaza
Chicago, Illinois 60670
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
J.P. Morgan & Co.
60 Wall Street
New York, New York 10260
Liquidity Provider
Kredietbank N.V., New York Branch
125 West 55th Street
New York, New York 10019
EXHIBIT A(5)
[Letterhead of Ray, Quinney & Nebeker]
[Certificate Closing Date]
To the Persons Listed in Schedule A Attached Hereto
Re: Federal Express Corporation Trust No. N672FE
Ladies and Gentlemen:
We have acted as special counsel to First Security Bank,
National Association, a national banking association ("First Security"), in
connection with the Pass Through Trust Agreement dated as of May 1, 1997
(the "Pass Through Trust Agreement"), as supplemented by the Series
Supplements dated the date hereof between Federal Express Corporation and
the First Security, not in its individual capacity, except as otherwise
stated, but solely as Pass Through Trustee, designated as Series Supplement
1997-1-A, 1997-1-B and 1997-1-C, respectively (the "Series Supplements")
and the Participation Agreement (Federal Express Corporation Trust No.
N672FE), dated as of May 1, 1997 (the "Participation Agreement"), among
Federal Express Corporation, as Lessee, PMCC Leasing Corporation, as Owner
Participant, State Street Bank and Trust Company of Connecticut, National
Association, not in its individual capacity, except as otherwise stated,
but solely as Owner Trustee, and First Security, not in its individual
capacity, except as otherwise stated, but solely as Indenture Trustee, Pass
Through Trustee and Subordination Agent. Pursuant to the Participation
Agreement, one Airbus A300F4-605R aircraft bearing U.S. Registration No.
N672FE (the "Aircraft") is being financed. This opinion is furnished
pursuant to Section 4.01(k)(iv) of the Participation Agreement.
Capitalized terms used herein and not otherwise defined are used as defined
in the Participation Agreement, except that references herein to any
instrument shall mean such instrument as in effect on the date hereof.
We have examined executed counterparts or copies otherwise
identified to our satisfaction of the following documents:
(a) The Pass Through Trust Agreement;
(b) The Series Supplements;
(c) The Pass Through Certificates;
(d) The Participation Agreement;
(e) The Intercreditor Agreement; and
(f) Each Liquidity Facility.
(each of the documents identified in paragraphs (a) through (e) are being
collectively referred to as the "Pass Through Trustee Documents" and each of
the documents identified in paragraphs (d) through (f) are being collectively
referred to as the "Subordination Agent Documents").
We have also examined originals or copies of such other
documents, such corporate records, certificates and other statements of
governmental officials and corporate officers and other representatives of the
corporations or entities referred to herein and such other instruments as we
have deemed necessary or appropriate for the purposes of this opinion.
Moreover, as to certain facts material to the opinions expressed herein, we
have relied upon representations and warranties contained in the Pass Through
Trustee Documents or the Subordination Agent Documents, as the case may be.
Based upon the foregoing and upon an examination of such
questions of law as we have considered necessary or appropriate, and subject
to the assumptions, exceptions and qualifications set forth below, we advise
you that, in our opinion:
With respect to the opinions set forth in paragraph 8 above,
with your permission we have relied upon, and this opinion is limited by, the
assumptions set forth in the discussion entitled "Certain Utah Taxes" in the
Prospectus Supplement to the Prospectus forming part of Registration Number
No. 333-07691 (the "Registration Statement") for the registration of the Pass
Through Certificates with the Securities and Exchange Commission. We express
no opinion as to the correctness of the foregoing assumptions and we have
conducted no independent investigation in this regard.
1. First Security is a national banking association duly
organized and validly existing under the laws of the United States of
America holding a valid certificate to do business as a national
banking association, with banking and trust powers.
2. Each of First Security, the Pass Through Trustee and the
Subordination Agent, as the case may be, has or had, on the date of
execution thereof, full corporate power, authority and legal right to
execute, deliver and perform each of the Pass Through Trustee
Documents and the Subordination Agent Documents, as the case may be,
and to authenticate the Pass Through Certificates delivered on the
Certificate Closing Date.
3. Each of First Security, the Pass Through Trustee and the
Subordination Agent has duly authorized, executed and delivered each
Pass Through Trustee Document or Subordination Agent Document, as the
case may be; each such document constitutes a legal, valid and
binding obligation of the Pass Through Trustee or the Subordination
Agent, as the case may be (and, to the extent set forth in the
respective Pass Through Trustee Document or Subordination Agent
Document, of First Security) enforceable against the Pass Through
Trustee or the Subordination Agent, as the case may be (and, to the
extent set forth in the respective Pass Through Trustee Document or
Subordination Agent Document, against First Security) in accordance
with its terms.
4. The Pass Through Certificates issued and dated the
Certificate Closing Date have been duly authorized and validly
executed, issued, delivered and authenticated by the Pass Through
Trustee pursuant to the Pass Through Trust Agreement and the Series
Supplements; and the Pass Through Certificates acquired by the
Underwriters under the Underwriting Agreement are enforceable against
the Pass Through Trustee and are entitled to the benefits of the
related Pass Through Trust Agreement and the related Series
Supplements.
5. No order, license, consent, permit, authorization or
approval of or exemption by, and no notice to or filing with, or the
taking of any other action in respect of, any Utah or Federal
governmental authority governing the banking or trust powers of First
Security, the Pass Through Trustee or the Subordination Agent, and no
filing, recording, publication or registration in any public office
is required under Utah or Federal law pertaining to its banking or
trust powers for the due execution, delivery or performance by First
Security, individually or as Pass Through Trustee or Subordination
Agent, as the case may be, of the Pass Through Trustee Documents
(other than the Pass Through Trust Agreement) or the Subordination
Agent Documents, as the case may be, and of the certificate of
authentication, as Pass Through Trustee, on the Pass Through
Certificates, or for the legality, validity, binding effect or
enforceability thereof against First Security, the Pass Through
Trustee or the Subordination Agent, as the case may be.
6. The execution, delivery and performance by the Pass
Through Trustee or First Security, as the case may be, of each of
the Pass Through Documents and the Subordination Agent or First
Security, as the case may be, of each of the Subordination Agent
Documents, and the issuance, execution, delivery and performance
of the Pass Through Certificates by the Pass Through Trustee are
not or were not, on the date of execution thereof, in violation of
the charter or by-laws of First Security or of any law,
governmental rule, or regulation of the State of Utah or the
United States of America governing the banking or trust powers of
First Security or, to our knowledge, of any indenture, mortgage,
bank credit agreement, note or bond purchase agreement, long-term
lease, license or other agreement or instrument to which it is a
party or by which it is bound or, to our knowledge, of any
judgment or order of the State of Utah or the United States of
America relating to the banking or trust powers of First Security.
7. There are no actions, suits, investigations or
proceedings pending or, to our knowledge, threatened against or
affecting First Security, the Pass Through Trustee or the
Subordination Agent or any of its properties in any court or
before any administrative agency or arbitrator, which, if
adversely determined, would materially adversely affect the
ability of First Security, the Pass Through Trustee or the
Subordination Agent, as the case may be, to perform its
obligations under any of the Pass Through Trustee Documents or the
Subordination Agent Documents, as the case may be, and there are
no pending or, to our knowledge, threatened actions or proceedings
before any court, administrative agency or tribunal involving
First Security, the Pass Through Trustee or the Subordination
Agent in connection with the transactions contemplated by any of
the Pass Through Trustee Documents or the Subordination Agent
Documents, as the case may be.
8. Neither the trusts created by the Pass Through Trust
Agreement and the Series Supplements nor the Pass Through Trustee,
in its individual or trust capacity, as the case may be, nor their
respective Affiliates, successors or assigns, will be subject to
any tax (including, without limitation, net or gross income,
tangible or intangible property, net worth, capital, franchise or
doing business tax), fee or other governmental charge under the
laws of the State of Utah or any political subdivision thereof
(other than taxes imposed on the fees received by State Street
Bank and Trust Company for acting as Pass Through Trustee under
the Series Supplements). Certificate holders who are not
residents of or otherwise subject to tax in Utah will not be
subject to any tax (including, without limitation, net or gross
income, tangible or intangible property, net worth, capital,
franchise or doing business tax), fee or other governmental charge
under the laws of the State of Utah or any political subdivision
thereof as a result of purchasing, owning (including receiving
payments with respect to) or selling a Pass Through Certificate.
There are no applicable taxes under the laws of the State of Utah
or any political subdivision thereof upon or with respect to (a)
the construction, mortgaging, financing, refinancing, purchase,
acquisition, acceptance, rejection, delivery, nondelivery,
transport, location, ownership, insurance, control, assembly,
possession, repossession, operation, use, condition, maintenance,
repair, sale, return, abandonment, replacement, preparation,
installation, storage, redelivery, manufacture, leasing,
subleasing, modification, rebuilding, importation, transfer of
title, transfer of registration, exportation or other application
or disposition of the Aircraft or any interest in any thereof, (b)
payments of Rent or other receipts, income or earnings arising
therefrom or received with respect to the Aircraft or any interest
in any thereof or payable pursuant to the Lease, (c) any amount
paid or payable pursuant to any Operative Agreements, (d) the
Aircraft or any interest therein or the applicability of the Lease
to the Aircraft or any interest in any thereof, (e) any or all of
the Operative Agreements, any or all of the Pass Through
Certificates or any interest in any or all thereof or the
offering, registration, reregistration, issuance, acquisition,
modification, assumption, reissuance, refinancing or refunding of
any or all thereof, and any other documents contemplated thereby
and amendments or supplements hereto and thereto, (f) the payment
of the principal of, or interest or premium on, or other amounts
payable with respect to, any or all of the Pass Through
Certificates, whether as originally issued or pursuant to any
refinancing, refunding, assumption, modification or reissuance, or
any other obligation evidencing any loan in replacement of the
loan evidenced by any or all of the Pass Through Certificates, or
(g) otherwise with respect to or in connection with the
transactions contemplated by the Pass Through Trust Agreement, the
Series Supplements, the Pass Through Certificates and the
Operative Agreements, which would not have been imposed if the
Pass Through Trustee had not had its principal place of business
in, had not performed (either in its individual capacity or as
Pass Through Trustee) any or all of its administrative duties
under the Pass Through Trust Agreement, the Series Supplements,
the Pass Through Certificates and the Operative Agreements in, and
had not engaged in any activities unrelated to the transactions
contemplated by the Pass Through Trust Agreement, the Series
Supplements, the Pass Through Certificates and the Operative
Agreements in, the State of Utah.
9. Each of the Certificates to be delivered to and registered
in the name of the Subordination Agent on the date hereof pursuant to
the Participation Agreement and the Intercreditor Agreement will be
held by the Subordination Agent in trust for the Pass Through Trustee
under the applicable Pass Through Trust Agreement.
Very truly yours,
Ray, Quinney & Nebeker
SCHEDULE A
Lessee
Federal Express Corporation
2007 Corporate Avenue
Memphis, Tennessee 38132
Owner Trustee
State Street Bank and Trust Company
of Connecticut, National Association
Two International Place
4th Floor
Boston, Massachusetts 02110
Indenture Trustee, Pass Through Trustee & Subordination Agent
First Security Bank, National Association
79 South Main Street
Salt Lake City, Utah 84111
Owner Participant
PMCC Leasing Corporation
200 First Stamford Place
Stamford, Connecticut 06902
Underwriters
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
First Chicago Capital Markets, Inc.
Corporate Securities
One First National Plaza
Chicago, Illinois 60670
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
J.P. Morgan & Co.
60 Wall Street
New York, New York 10260
Liquidity Provider
Kredietbank N.V., New York Branch
125 West 55th Street
New York, New York 10019
EXHIBIT A(6)(a)
[Letterhead of Kredietbank N.V.]
[Certificate Closing Date]
To Each of the Parties named on Schedule A Hereto
Re: Federal Express Corporation 1997-1
Enhanced Pass Through Certificates
Ladies and Gentlemen:
I am the manager of the Legal Department of Kredietbank N.V.
("Kredietbank") and have advised Kredietbank and its New York Branch (the
"Branch") in connection with (i) the Irrevocable Revolving Credit Agreement
Class A Certificates, dated as of May 1, 1997 (the "Class A Liquidity
Agreement"), between the Branch and First Security Bank, National
Association, a national banking association, as Subordination Agent under
the Intercreditor Agreement, defined below, and as agent and trustee for
the Federal Express Corporation Pass Through Trust 1997-1-A, (ii) the
Irrevocable Revolving Credit Agreement Class B Certificates, dated as of
May 1, 1997 (the "Class B Liquidity Agreement"), between the Branch and
First Security Bank, National Association, a national banking association,
as Subordination Agent under the Intercreditor Agreement, defined below,
and as agent and trustee for the Federal Express Corporation Pass Through
Trust 1997-1-B (the "Intercreditor Agreement" and, together with the
Liquidity Agreements, the "Liquidity Documents"), and (iii) the
Intercreditor Agreement, dated as of May 1, 1997 (the "Intercreditor
Agreement"), among the Branch, First Security Bank, National Association,
as Pass Through Trustee and as Subordination Agent (the Liquidity
Agreements and the Intercreditor Agreement are hereinafter collectively the
"Liquidity Documents").
Capitalized terms herein which are undefined have the meanings
assigned to them in the Liquidity Documents.
I am rendering this opinion in my capacity as manager of the
Legal Department and without being personally liable to any extent for the
opinions expressed herein.
In connection with the opinions hereinafter given, I have
examined a copy of each of the Liquidity Documents and such other
certificates, documents, agreements and instruments as I have deemed
necessary as a basis for the opinions expressed below.
In such examination, I have assumed the genuineness of all
signatures, the authenticity of all agreements, certificates, instruments and
documents submitted to me as originals, and the conformity to the originals of
all agreements, certificates, instruments and documents submitted to me as
copies. As to questions of fact material to the opinions expressed below, I
have, when relevant facts were not independently established by me, examined
and relied upon representations of officers of Kredietbank.
Based upon the foregoing examination and assumptions, and
subject to the qualifications set forth below, I am of the opinion that:
1. Kredietbank is duly organized and validly existing as a
Belgian public law banking institution under the law of Belgium and
has full power and authority (corporate and otherwise) to execute,
deliver and perform the Liquidity Documents.
2. [Tod Angus] or [Robert Snauffer], acting together with
[Jean Glasgow], if acting for and on behalf of the Branch, are
duly authorized by Kredietbank to execute and deliver the
Liquidity Documents for and on behalf of the Branch. Assuming
each of the Liquidity Documents has been duly executed and
delivered for and on behalf of the Branch by such persons, no
further authorization by or any corporate action of Kredietbank is
required in connection with the execution, delivery and
performance thereof.
3. The governing-law clause, subjecting the Liquidity
Documents to New York law, is valid under Belgian law.
(i) Under Belgian law, New York law will be applied to an
agreement, such as the Liquidity Documents, which under Belgian
law has been validly subjected to New York laws.
(ii) (a) None of the terms of the Liquidity Documents
is irreconcilable with important principles of Belgian law,
and (b) there are no mandatory provisions of Belgian law
which must be applied to the transactions covered by the
Liquidity Documents.
(iii) Each of the Liquidity Documents constitutes the
legal, valid and binding obligation of Kredietbank,
enforceable against Kredietbank in accordance with its
terms, the rules of civil procedures of Belgium and the
applicable provisions of the chosen law of New York.
4. No authorization, consent, approval or other action by,
and no notice to or filing with, any governmental, administrative
or other authority or court of Belgium is required for the
execution or delivery of the Liquidity Documents by Kredietbank
through the Branch or for the performance by Kredietbank or by the
Branch of the Liquidity Documents.
5. The execution, delivery and performance of the Liquidity
Documents by Kredietbank or the Branch will not result in any
violation by Kredietbank or by the Branch of any law of Belgium.
6. The contractual obligations incurred by virtue of the
execution and delivery of the Liquidity Documents for and on behalf
of the Branch are the obligations of Kredietbank, and Kredietbank has
no defenses against the performance of such obligations which are
based on the fact that Kredietbank had acted through the Branch in
executing and delivering the Liquidity Documents.
7. If a final and conclusive judgment of the Supreme Court of
the State of New York, New York County, or of the Untied States
District Court for the Southern District of New York for a definite
sum for the recovery of amounts due and unpaid under the Liquidity
Documents were to be rendered against Kredietbank, a reexamination or
relitigation on the merits of the subject matter thereof in
accordance with Article 570 of the Belgian Judicial Code would be
necessary in order to obtain recognition and/or enforcement of such
judgment in Belgium.
8. The obligations of Kredietbank under the Liquidity
Documents rank at least equal in priority of payment and in all
other respects with its obligations to pay any other unsecured and
unsubordinated obligations of Kredietbank for borrowed money,
including deposit liabilities, that are not expressly preferred by
law.
The foregoing opinions are subject to the following
qualifications:
(i) The opinion in paragraph (3) with respect to
enforceability is subject to the effect of any bankruptcy,
insolvency, reorganization, moratorium, liquidation or similar
laws affecting creditors' rights generally, applicable to
Kredietbank and to any law or general principle of law from
time to time in effect in Belgium that could be considered by
the Belgian Courts as a provision of public policy.
(ii) In giving the opinions in paragraphs (3)(iii), (6) and
(8), I have assumed, with your consent, that each of the
Liquidity Documents is legal, valid and binding under New York
law, all as set forth more fully in the opinion dated of even
date herewith of Milbank, Tweed, Hadley & McCloy issued in
connection with the Liquidity Documents.
(iii) No opinion is expressed with respect to the law of any
jurisdiction other than the law of Belgium.
This opinion is being furnished to you solely for your benefit
in connection with the transactions described above and may not be used,
circulated, quoted or otherwise referred to for any other purpose without my
express written consent.
Very truly yours,
SCHEDULE A
Lessee
Federal Express Corporation
2007 Corporate Avenue
Memphis, Tennessee 38132
Indenture Trustee, Pass Through Trustee & Subordination Agent
First Security Bank, National Association
79 South Main Street
Salt Lake City, Utah 84111
Underwriters
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
First Chicago Capital Markets, Inc.
Corporate Securities
One First National Plaza
Chicago, Illinois 60670
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
J.P. Morgan & Co.
60 Wall Street
New York, New York 10260
EXHIBIT A(6)(b)
[Letterhead of Milbank, Tweed, Hadley & McCloy]
[Certificate Closing Date]
To Each of the Parties named on Schedule A Hereto
Re: Federal Express Corporation 1997-1
Enhanced Pass Through Certificates
Ladies and Gentlemen:
We have acted as special New York counsel to Kredietbank
N.V., New York Branch (herein called the "Liquidity Provider") in
connection with the transactions contemplated by (i) the Irrevocable
Revolving Credit Agreement Class A Certificates, dated as of May 1, 1997
(the "Class A Liquidity Agreement"), between the Liquidity Provider and
First Security Bank, National Association, as Subordination Agent under the
Intercreditor Agreement, as defined below, as agent and trustee for the
Federal Express Corporation 1997-1-A Pass Through Trust, (ii) the
Irrevocable Revolving Credit Agreement Class B Certificates, dated as of
May 1, 1997 (the "Class B Liquidity Agreement" and, together with the Class
A Liquidity Agreement, the "Liquidity Agreements"), between the Liquidity
Provider and First Security Bank, National Association, as Subordination
Agent under the Intercreditor Agreement, as defined below, as agent and
trustee for the Federal Express Corporation 1997-1-B Pass Through Trust,
and (iii) the Intercreditor Agreement, dated as of May 1, 1997 (the
"Intercreditor Agreement" and, together with the Liquidity Agreements, the
"Liquidity Documents"), among the Liquidity Provider and First Security
Bank, National Association, as Pass Through Trustee and as Subordination
Agent. Capitalized terms used herein but not otherwise defined herein
shall have the meanings provided in the Liquidity Documents.
In rendering the opinion expressed below, we have examined
the Liquidity Documents, the opinion dated the date hereof of Wilfred
Kupers, Esq., manager of the Legal Department of Kredietbank N.V., and such
other documents as we have deemed necessary.
In our examination, we have assumed the authenticity of all
documents submitted to us as originals and the conformity with authentic
original documents of all documents submitted to us as copies. When relevant
facts were not independently established, we have relied upon representations
made in or pursuant to the Liquidity Documents.
In rendering the opinion expressed below, we have assumed, with
respect to each Liquidity Document, that:
(i) it has been duly authorized by, has been duly executed and
delivered by, and (except to the extent set forth in the
opinion below as to the Liquidity Provider) constitutes
legal, valid, binding and enforceable obligations of all of
the parties thereto;
(ii) all signatories thereto have been duly authorized; and
(iii) all of the parties thereto are duly organized and validly
existing and have the power and authority (corporate,
partnership, trust or other) to execute, deliver and perform
thereunder.
Based upon and subject to the foregoing and subject also to
the comments and qualifications set forth below, and having considered such
questions of law as we have deemed necessary as a basis for the opinion
expressed below, we are of the opinion that each Liquidity Document
constitutes the legal, valid and binding obligation of the Liquidity
Provider, enforceable against the Liquidity Provider in accordance with its
terms, except as may be limited by bankruptcy, insolvency, reorganization,
moratorium, fraudulent conveyance or transfer or other similar laws
relating to or affecting the rights of creditors generally and except as
the enforceability of such Liquidity Document is subject to the application
of general principles of equity (regardless of whether considered in a
proceeding in equity or at law), including, without limitation, (a) the
possible unavailability of specific performance, injunctive relief or any
other equitable remedy and (b) concepts of materiality, reasonableness,
good faith and fair dealing.
The foregoing opinion is subject to the following comments and
qualifications:
(A) The enforceability of provisions in the Liquidity
Documents to the effect that terms may not be waived or modified
except in writing may be limited under certain circumstances.
(B) We express no opinion as to (i) the effect of the laws of
any jurisdiction in which the Liquidity Provider is located (other
than New York) that limit the interest, fees or other charges the
Liquidity Provider may impose for the loan or use of money or other
credit, (ii) Section 7.11(a)(i) of each Liquidity Agreement and
Section 10.11(a)(i) of the Intercreditor Agreement, insofar as such
Sections relate to the subject matter jurisdiction of a Federal court
sitting in New York, New York to adjudicate any controversy related
to the Liquidity Documents, (iii) the waiver of inconvenient forum
set forth in Section 7.11(a)(ii) of each Liquidity Agreement and
Section 10.11(a)(ii) of the Intercreditor Agreement with respect to
proceedings in a Federal court sitting in New York, New York and a
State court of the State of New York and (iv) the waiver of immunity
set forth in Section 10.11(c) of the Intercreditor Agreement with
respect to proceedings in a Federal court sitting in New York, New
York and a State court of the State of New York.
The foregoing opinion is limited to matters involving the
Federal laws of the United States of America and the law of the State of
New York, and we do not express any opinion as to the laws of any other
jurisdiction. In particular, we do not express any opinion as to the laws
of Belgium and, to the extent such laws may be relevant to the opinion
expressed herein, we have, with your permission, relied upon the
aforementioned opinion of Wilfred Kupers, Esq., manager of the Legal
Department of Kredietbank N.V., without independently considering the
matters covered thereby, and our opinion is subject to all limitations,
exceptions and qualifications contained therein as if set forth herein in
full.
At the request of the Liquidity Provider, this opinion letter is
provided to you by us in our capacity as special New York counsel to the
Liquidity Provider, and this opinion letter may not be relied upon by any
Person for any purpose other than in connection with the transactions
contemplated by the Liquidity Documents without, in each instance, our prior
written consent.
Very truly yours,
SCHEDULE A
Lessee
Federal Express Corporation
2007 Corporate Avenue
Memphis, Tennessee 38132
Indenture Trustee, Pass Through Trustee & Subordination Agent
First Security Bank, National Association
79 South Main Street
Salt Lake City, Utah 84111
Underwriters
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
First Chicago Capital Markets, Inc.
Corporate Securities
One First National Plaza
Chicago, Illinois 60670
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
J.P. Morgan & Co.
60 Wall Street
New York, New York 10260
Liquidity Provider
Kredietbank N.V., New York Branch
125 West 55th Street
New York, New York 10019
EXHIBIT A(7)
[Letter of General Electric Company]
[Delivery Date]
To Each of the Parties named on Schedule A Hereto
Re: Federal Express Corporation Trust No. N672FE
Reference is made to (i) that certain Participation Agreement
(Federal Express Corporation Trust No. N672FE), dated as of May 1, 1997
(the "Participation Agreement") by and among Federal Express Corporation,
as Lessee ("Fed Ex"), PMCC Leasing Corporation, as Owner Participant, State
Street Bank and Trust Company of Connecticut, National Association ("SSB")
(not in its individual capacity, except as otherwise expressly set forth
therein, but solely as Owner Trustee), First Security Bank, National
Association ("FSB") (not in its individual capacity, except as otherwise
expressly set forth therein, but solely as Indenture Trustee, Pass Through
Trustee and Subordination Agent); (ii) that certain Purchase Agreement
Assignment (Federal Express Corporation Trust No. N672FE), dated as of May
1, 1997 (the "Purchase Agreement Assignment") between Fed Ex, as Lessee and
SSB, as Lessor; (iii) that certain Lease Agreement (Federal Express
Corporation Trust No. N672FE), dated as of May 1, 1997 (the "Lease")
between SSB (not in its individual capacity, but solely as Owner Trustee),
as Lessor and Fed Ex, as Lessee; (iv) that certain Trust Indenture and
Security Agreement (Federal Express Corporation Trust No. N672FE), dated
as of May 1, 1997 (the "Trust Indenture") between SSB (not in its
individual capacity), as Owner Trustee and FSB (not in its individual
capacity), as Indenture Trustee; and (v) that certain Trust Agreement
(Federal Express Corporation Trust No. N672FE), dated as of May 1, 1997
(the "Trust Agreement") between SSB (not in its individual capacity), as
Owner Trustee and PMCC Leasing Corporation, as Trustor.
I am an attorney employed by General Electric Company, a New York
corporation (the "Engine Manufacturer") and as such have acted as counsel
for the Engine Manufacturer in connection with the execution and delivery
by the Engine Manufacturer of the Consent (the "Consent"), and the Engine
Warranty Assignment (Federal Express Corporation Trust No. N672FE) (the
"Engine Warranty Assignment"), each attached to the Participation Agreement
as Exhibit F and dated as of May 1, 1997. The Consent and the Engine
Warranty Assignment covers two GE CF6-80C2-A5F series engines bearing
Engine Manufacturer's serial numbers ___-___ and ___-___, respectively. In
this connection, I have, or an attorney under my supervision has, reviewed
such documents as I have deemed necessary for the purpose of this opinion,
including, but without limiting the generality of the foregoing, the
General Terms Agreement No. 6-9034, dated as of July 3, 1991 between the
Engine Manufacturer and Fed Ex (the "General Terms Agreement"), the Engine
Product Support Plan forming a part thereof (the "Engine Product Support
Plan"), the Participation Agreement, the Purchase Agreement Assignment, the
Lease, the Trust Indenture and the Trust Agreement.
In making such examinations, I have relied upon the accuracy of
original, certified, conformed, photocopied or telecopied copies of such
records, agreements, certificates and other documents as I have deemed
necessary or appropriate to enable me to render the opinions expressed
herein. In all such examinations, I have assumed the genuineness of
signatures on original documents and the conformity to such original
documents of all copies submitted to me as certified, conformed,
photocopied or telecopied copies, and as to certificates and telegraphic
and telephonic confirmations given by public officials, I have assumed the
same to have been properly given and to be accurate. As to various
questions of fact material to such opinions, I have relied, when such
relevant facts were not independently established by me, solely upon the
accuracy of the statements, representations and warranties made in the
Participation Agreement, the Purchase Agreement Assignment, the Lease, the
Trust Indenture and the Trust Agreement.
With your consent, and for the purposes of this opinion, I have
assumed (other than with respect to the Engine Manufacturer), the accuracy of
the following matters, but I have not made any independent investigation or
inquiry with respect thereto and I render no opinion on such matters:
(a) each of the Participation Agreement, the Purchase
Agreement Assignment, the Lease, the Trust Indenture, and the Trust
Agreement have been duly and validly authorized, executed and
delivered by all parties thereto and constitutes the legal, valid and
binding obligations of each of such parties in accordance with the
respective terms thereof; and
(b) the respective parties to the Participation Agreement,
the Purchase Agreement Assignment, the Lease, the Trust Indenture,
and the Trust Agreement have obtained, and there are in full force
and effect, any and all federal, state, local or foreign
governmental agencies and authorities in connection with the
transactions contemplated thereby, to the extent necessary for the
legality, validity and binding effect or enforceability of the
Consent and the Engine Warranty Assignment.
Based upon the foregoing, and subject to the specific assumptions,
qualifications and reliances herein set forth, and on the basis of my
consideration of such facts and law as I have deemed necessary for purposes of
this letter, it is my opinion that:
(1) The Engine Manufacturer has the full corporate power,
authority and the legal right to enter into and perform its
obligations under the General Terms Agreement, the Consent and the
Engine Warranty Assignment. The execution, delivery and
performance by the Engine Manufacturer of each of the General
Terms Agreement, the Consent and the Engine Warranty Assignment
was duly authorized by all necessary corporate action on the part
of the Engine Manufacturer.
(2) Each of the General Terms Agreement, the Consent and
Engine Warranty Assignment has been duly authorized, executed and
delivered by and constitutes a legal, valid and binding obligation of
the Engine Manufacturer, enforceable against the Engine Manufacturer
in accordance with the respective terms thereof, except as the
enforceability thereof may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting the
rights of creditors generally and by general equity principles.
(3) The Engine Product Support Plan insofar as it relates to
the Engine Warranties (as such term is defined in the Engine Warranty
Assignment), constitutes a legal, valid and binding obligation of the
Engine Manufacturer, enforceable against the Engine Manufacturer in
accordance with the terms thereof, except as the enforceability
thereof may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the rights of
creditors generally and by general equity principles.
The foregoing opinions are limited to the laws of the State
of New York and the federal laws of the United States of America, but no
opinion is expressed as to matters governed by the Transportation Code, or
by any other law, statute, rule or regulation of the United States relating
to the acquisition, ownership, registration, use, operation, maintenance,
repair, replacement or sale of aircraft. Further, no opinion is expressed
as to title to any engines or other property.
This opinion is furnished by me at your request for your
sole benefit and no other person or entity shall be entitled to rely on
this opinion without our express written consent. My opinion is limited to
the matters stated herein and no opinion is implied or may be inferred
beyond the matters expressly stated herein.
Very truly yours,
David L. Lloyd, Jr.
SCHEDULE A
Lessee
Federal Express Corporation
2007 Corporate Avenue
Memphis, Tennessee 38132
Owner Trustee
State Street Bank and Trust Company
of Connecticut, National Association
Two International Place
4th Floor
Boston, Massachusetts 02110
Indenture Trustee, Pass Through Trustee & Subordination Agent
First Security Bank, National Association
79 South Main Street
Salt Lake City, Utah 84111
Owner Participant
PMCC Leasing Corporation
200 First Stamford Place
Stamford, Connecticut 06902
Underwriters
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
First Chicago Capital Markets, Inc.
Corporate Securities
One First National Plaza
Chicago, Illinois 60670
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
J.P. Morgan & Co.
60 Wall Street
New York, New York 10260
Liquidity Provider
Kredietbank N.V., New York Branch
125 West 55th Street
New York, New York 10019
EXHIBIT A(8)
[Letterhead of Clifford Chance]
[Delivery Date]
To The Opinion Addressees referred to in Schedule A hereof
Re: Federal Express Corporation Trust No. N672FE
Ladies and Gentlemen:
We are special French counsel for Airbus Industrie G.I.E.
("Airbus") and AVSA S.A.R.L. ("AVSA") and you have asked for our opinion
in connection with certain transactions contemplated in the Participation
Agreement (Federal Express Corporation Trust No. N672FE), dated as of May
1, 1997 (the "Participation Agreement") among Federal Express Corporation,
as Lessee ("Federal Express"), PMCC Leasing Corporation, as Owner
Participant ("Owner Participant"), State Street Bank and Trust Company of
Connecticut, National Association, not in its individual capacity, except
as otherwise stated, but solely as Owner Trustee ("Owner Trustee"), First
Security Bank, National Association, not in its individual capacity, except
as otherwise stated, but solely as Indenture Trustee ("Indenture Trustee"),
Pass Through Trustee and Subordination Agent, and relating to the Aircraft
to be operated by Federal Express.
This opinion is being delivered pursuant to Section 4.02(m)(x)
of the Participation Agreement.
Capitalized terms used in this opinion and not otherwise
defined shall have the meaning assigned thereto in the Participation
Agreement.
We have examined:
(i) a copy of an Airbus A300-600R Freighter Purchase Agreement
dated as of July 3, 1991 and made between AVSA and Federal
Express with an executed Consent and Guaranty of Airbus of
same date attached thereto, sent to us by facsimile by
AINA Holdings Inc. ("AINA") on April 27, 1994;
(ii) a copy sent to us by facsimile by Davis Polk & Wardwell on
_________________ of an executed Purchase Agreement
Assignment dated as of May 1, 1997 (the "Purchase
Agreement Assignment") made between Federal Express and
the Owner Trustee;
(iii) a copy sent to us by facsimile by AVSA on _________________
of an executed but undated Airbus Industrie Consent and
Agreement to the Purchase Agreement Assignment;
(iv) a copy sent to us by facsimile by AVSA on _________________
of an executed but undated AVSA Consent and Agreement to
the Purchase Agreement Assignment;
(v) a copy sent to us by facsimile by AVSA on _________________
of an executed but undated Warranty Bill of Sale, relating
to the Aircraft and transferring title therein from AVSA
to the Owner Trustee ("AVSA Warranty Bill of Sale");
(vi) a copy sent to us by facsimile by AVSA on _________________
of an executed but undated Airbus Industrie G.I.E.
Warranty, in favour of the Participants (the "Airbus
Warranty") warranting AVSA's Warranty Bill of Sale;
(vii) a copy sent to us by facsimile by AVSA on _________________
of an undated FAA Bill of Sale executed by AVSA in favour
of the Owner Trustee;
(viii) a copy sent to us by facsimile by AVSA on May 3, 1995 of an
executed power of attorney dated September 1, 1994 appointing
Messrs. John Leahy and Michel Dechelotte, acting singly, as
attorneys-in-fact of Mr. Jean Pierson, Managing Director
("Administrateur Gerant") of Airbus;
(ix) a copy sent to us by facsimile by AVSA on September 15, 1995
of an executed power of attorney dated August 16, 1995
appointing J.C Mauries as attorney-in-fact of Mr. Jean
Pierson, Managing Director ("Administrateur Gerant") of
Airbus;
(x) a copy sent to us by facsimile by AVSA on September 15, 1995
of an executed power of attorney dated August 16, 1995
appointing Xavier de Rouville as attorney-in-fact of Mr.
Jean Pierson, Managing Director ("Administrateur Gerant")
of Airbus;
(xi) a copy sent to us by courier by AVSA on September 15, 1995 of
an executed power of attorney dated August 1, 1995
appointing Ms. Michele Lascaux and Mr. Etienne O. de
Coninck, acting singly, as attorneys-in-fact of Mr.
Christophe Mourey, Chief Executive Officer ("Gerant") of
AVSA; and
(xii) a copy sent to us by courier by AVSA on September 15, 1995
of an executed power of attorney dated August 1, 1995
appointing Ms. Marie-Pierre Merle-Beral and Michele
Lascaux, Messrs. Jacques Debeaulieu, Sylvain Lebeuf,
Philippe Martin, Rainer von Borstel and Alain Rochet,
acting singly, as attorneys-in-fact of Mr. Christophe
Mourey, Chief Executive Officer ("Gerant") of AVSA.
(the documents referred to in paragraphs (i) to (xii) being referred to herein
as the "Documents").
Based on the foregoing, and such other documents, records
and other instruments as we have deemed necessary or appropriate for the
purpose of this opinion, and assuming the Documents to have been duly
executed by the parties thereto (other than Airbus and AVSA), the
genuineness of all signatures and the completeness and conformity to the
originals of all documents supplied to us as copies or as facsimiles, we
are of the opinion that, subject to the qualifications set out below:
1. Airbus is a groupement d'interet economique duly organized and
existing under the laws of the French Republic, and has the
power and authority to carry on its business as now conducted.
The present members of Airbus are (i) Aerospatiale, Societe
Nationale Industrielle, (ii) Daimler-Benz Aerospace Airbus
GmbH, (iii) British Aerospace (Operations) Ltd. and (iv)
Construcciones Aeronauticas S.A., and each of such corporations
is, without the need to proceed against any collateral security
for the indebtedness of Airbus or to take any other legal
action or process (except for service on Airbus by huissier of
notice to perform and subsequent failure by Airbus to do so),
jointly and severally liable with the other members for the
debts of Airbus arising out of obligations contracted by Airbus
while such corporation is a member of Airbus.
2. AVSA is a societe a responsabilite limitee duly established
and existing under the laws of the French Republic and has
the power and authority to carry on its business as now
conducted.
3. Each of Airbus and AVSA has full power and authority to enter
into and to execute, deliver and perform its obligations under
those of the Documents to which it is a party; such obligations
are legal, valid and binding upon them respectively, are
enforceable in accordance with their respective terms and rank
pari passu with the other unsecured obligations of Airbus or
AVSA, as the case may be.
4. All actions, authorizations, approvals, consents, conditions
and things required at law to be taken, fulfilled and done
to authorize the execution, delivery and performance by
Airbus and AVSA of those of the Documents to which they
respectively are party have been taken, obtained, fulfilled
and done; and no consents under any exchange control, laws,
rules or regulations of the French Republic are necessary in
connection therewith.
5. Neither the execution and delivery and performance of the
Documents to which Airbus and AVSA respectively are a party,
nor the consummation of the transactions contemplated
thereby, contravenes or violates any law, governmental rule
or regulation applicable to or binding on Airbus or AVSA.
6. The choice of the laws of the State of New York to govern the
Documents (which are expressed to be so governed) is valid
under the laws of the French Republic, and a French court
would uphold such choice of law in any suit on the Documents
brought in a French court.
7. Under the laws of the French Republic, Airbus and AVSA are
subject to private commercial law and to suit, and neither
Airbus nor AVSA, nor their respective properties have any
immunity from the jurisdiction of any court or any legal
process (whether through service of notice, attachment prior to
notice, attachment prior to judgment, attachment in aid of
execution, execution or otherwise), except that:
(a) to the extent that Airbus or AVSA occupies or possesses
any property by virtue of any license or grant from the
French State, such property and the title of Airbus or
AVSA thereto may be immune from suit or execution on the
grounds of sovereignty, and
(b) suit and execution against Airbus and AVSA or their
respective property may be affected by action taken by
the French public authorities in the interests of
national defence or on the occurrence of exceptional
circumstances of paramount importance to the national
interest of France, as such concept is understood
under the Constitution, laws and regulations of
France.
8. No French value added tax is due upon the transfer of title of
the Aircraft from AVSA to State Street Bank and Trust
Company of Connecticut, National Association as Owner
Trustee.
9. In connection with the obligations of Airbus and AVSA under the
Documents, this opinion must be read subject to the following
qualifications and observations as to French law:
(a) the remedy of specific performance may not be available
in a French court;
(b) the enforcement against Airbus of any of the Documents to
which it is a party may be limited by applicable
bankruptcy, insolvency, arrangement, moratorium or
similar laws relating to or affecting the enforcement of
creditors' rights generally, as such laws are applied to
Airbus. The enforcement against AVSA of any of the
Documents to which it is a party may be limited by such
laws, as such laws are applied to AVSA. The enforcement
against any member of Airbus of any obligation of Airbus
contained in the Documents may be limited by such laws,
as such laws are applied to such member;
(c) in respect of payment obligations, a French court has
power under Article 1244-1 of the French Civil Code to
grant time to a debtor (not in excess of two years),
taking into account the position of the debtor and the
needs of the creditor;
(d) in order to ensure the validity as against third parties
of the assignment made in the Purchase Agreement
Assignment, it is necessary that notice of such
assignment be served on Airbus and AVSA by "huissier" in
accordance with the provisions of Article 1690 of the
French Civil Code;
(e) in the event of any proceedings being brought in a
French court in respect of a monetary obligation
expressed to be payable in a currency other than
French Francs, a French court would probably give
judgment expressed as an order to pay, not such
currency, but its French Franc equivalent at the time
of payment or enforcement of judgment. With respect
to a bankruptcy, insolvency, liquidation, moratorium,
reorganization, reconstruction or similar proceedings,
French law may require that all claims or debts be
converted into French Francs at an exchange rate
determined by the court at a date related thereto,
such as the date of commencement of a winding-up;
(f) a determination or certificate as to any matter provided
for in the Documents might be held by a French court not
to be final, conclusive or binding, if such determination
or certificate could be shown to have an unreasonable,
incorrect or arbitrary basis or not to have been given or
made in good faith;
(g) claims may become barred by effluxion of time or may be
or become subject to defence of set-off or
counterclaim;
(h) provisions in any Document providing that it or any
other Documents may be amended or varied or any
provision thereof waived only by an instrument in
writing may not be effective;
(i) a French court may stay proceedings if concurrent
proceedings are being brought elsewhere;
(j) we express no opinion as to whether any provision in the
Documents conferring a right of set-off or similar
right would be effective against a liquidator or a
creditor; and
(k) our opinion as to the enforceability of the Documents
relates only to their enforceability in France in
circumstances where the competent French court has and
accepts jurisdiction. The term "enforceability" refers
to the legal character of the obligations assumed by the
parties under the documents, i.e., that they are of a
character which French law enforces or recognizes. It
does not mean that the Documents will be enforced in all
circumstances or in foreign jurisdictions or by or
against third parties or that any particular remedy will
be available.
(l) Article 899 of the French Tax Code provides that
agreements evidencing an undertaking to pay a sum of
money are subject to stamp tax ("droit de timbre") of a
nominal amount if made in the French Republic, if made in
a foreign country, such agreements are subject to a stamp
tax of a nominal amount before certain use thereof can be
made in the French Republic (Article 897 of the French
Tax Code). However non-payment of such stamp tax does
not affect the legality, validity or enforceability of
the agreements.
In rendering the foregoing opinions, we have assumed that the
Documents (expressed to be governed by New York law) constitute the legal,
valid and binding obligations of the parties under New York law.
We are qualified as French Avocats.
No opinion is expressed herein as to laws other than the
laws of the French Republic as of the date hereof. This opinion is for
your use and that of no one else, and is limited to (i) the matters
specifically mentioned herein, and (ii) the purpose set out above.
Very truly yours,
Clifford Chance
SCHEDULE A
Lessee
Federal Express Corporation
2007 Corporate Avenue
Memphis, Tennessee 38132
Owner Trustee
State Street Bank and Trust Company
of Connecticut, National Association
Two International Place
4th Floor
Boston, Massachusetts 02110
Indenture Trustee, Pass Through Trustee & Subordination Agent
First Security Bank, National Association
79 South Main Street
Salt Lake City, Utah 84111
Owner Participant
PMCC Leasing Corporation
200 First Stamford Place
Stamford, Connecticut 06902
Underwriters
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
First Chicago Capital Markets, Inc.
Corporate Securities
One First National Plaza
Chicago, Illinois 60670
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
J.P. Morgan & Co.
60 Wall Street
New York, New York 10260
Liquidity Provider
Kredietbank N.V., New York Branch
125 West 55th Street
New York, New York 10019
EXHIBIT A(9)
[Letterhead of Daugherty, Fowler & Peregrin]
[Delivery Date]
To the Parties Named on Schedule A attached hereto
Re: Federal Express Corporation Trust No. N672FE
Ladies and Gentlemen:
This opinion is furnished to you pursuant to Section
4.02(d)(iii) of the Participation Agreement (Federal Express Corporation
Trust No. N672FE), dated as of May 1, 1997 (the "Participation Agreement")
among Federal Express Corporation, as Lessee (the "Lessee"), PMCC Leasing
Corporation, as Owner Participant (the "Owner Participant"), State Street
Bank and Trust Company of Connecticut, National Association, not in its
individual capacity, except as otherwise stated, but solely as Owner
Trustee ("Owner Trustee"), First Security Bank, National Association, not
in its individual capacity, except as otherwise stated, but solely as
Indenture Trustee ("Indenture Trustee"), Pass Through Trustee and
Subordination Agent, with respect to that portion of Subtitle VII of Title
49 of the United States Code relative to the recordation of instruments and
the registration of aircraft thereunder.
The capitalized terms herein shall, unless otherwise
defined, have the same meanings given them in the Participation Agreement
or in Annex I attached hereto.
We have examined and filed on this date with the Federal
Aviation Administration (the "FAA") the following described instruments at
the respective times listed below:
(a) AC Form 8050-2 Aircraft Bill of Sale dated
_____________ (the "FAA Bill of Sale") from AVSA, as
seller, conveying title to the Airframe to the Owner
Trustee, which FAA Bill of Sale was filed at ____
_.m., C._.T.;
(b) AC Form 8050-1 Aircraft Registration Application dated
_____________ (the "Aircraft Registration
Application") by the Owner Trustee, as applicant,
covering the Airframe, which Aircraft Registration
Application was filed at ____ _.m., C._.T.;
(c) Affidavit of the Owner Trustee dated _____________ (the
"Owner Trustee Affidavit") pursuant to Section
47.7(c)(2)(ii) of Part 47 of the Federal Aviation
Regulations together with Affidavit of the Owner
Participant dated _____________ (the "Owner
Participant Affidavit") attached thereto, which Owner
Trustee Affidavit with the Owner Participant Affidavit
attached was filed at ____ _.m., C._.T.;
(d) executed counterpart of Trust Agreement (Federal Express
Corporation Trust No. N672FE) dated as of May 1, 1997
(the "Trust Agreement") between the Owner Participant
and the Owner Trustee, which Trust Agreement was filed
at ____ _.m., C._.T.;
(e) executed counterpart of Trust Indenture and Security
Agreement (Federal Express Corporation Trust No.
N672FE) dated as of May 1, 1997 (the "Trust
Indenture") between the Owner Trustee and the
Indenture Trustee, with executed counterpart of
Indenture and Security Agreement Supplement No. 1
(Federal Express Corporation Trust No. N672FE) dated
_____________ (the "Trust Indenture Supplement") by
the Owner Trustee, covering the Aircraft, attached
thereto, which Trust Indenture with the Trust
Indenture Supplement attached was filed at ____ _.m.,
C._.T.; and,
(f) executed counterpart of Lease Agreement (Federal Express
Corporation Trust No. N672FE) dated as of May 1, 1997
(the "Lease") between the Owner Trustee, as lessor,
and the Lessee, with executed counterparts of the
following attached thereto: (i) Lease Supplement No.
1 (Federal Express Corporation Trust No. N672FE)
dated _____________ (the "Lease Supplement") between
the Owner Trustee, as lessor, and the Lessee, covering
the Aircraft; (ii) the Trust Indenture; and (iii) the
Trust Indenture Supplement, which Lease with the
foregoing attachments (collectively, the "Lease
Attachments") attached was filed at ____ _.m., C._.T.
The Confidential Omissions were intentionally omitted from
the FAA filing counterparts of the Lease and the Trust Indenture as
containing confidential financial information.
Based upon our examination of the above described
instruments and of such records of the FAA as we deemed necessary to render
this opinion, it is our opinion that:
1. the FAA Bill of Sale, the Trust Indenture with the Trust
Indenture Supplement attached and the Lease with the
Lease Attachments attached are in due form for
recordation by and have been duly filed for
recordation with the FAA pursuant to and in accordance
with the provisions of 49 U.S.C. Section 44107;
2. the Aircraft Registration Application, the Owner Trustee
Affidavit with the Owner Participant Affidavit
attached and the Trust Agreement are in due form for
filing and have been duly filed with the FAA pursuant
to and in accordance with the provisions of 49 U.S.C.
Section 44103(a) and Section 47.7(c) of the Federal
Aviation Regulations;
3. the Airframe is eligible for registration under 49 U.S.C.
Section 44102 in the name of the Owner Trustee and the
filing with the FAA of the FAA Bill of Sale, the
Aircraft Registration Application, the Owner Trustee
Affidavit with the Owner Participant Affidavit
attached and the Trust Agreement will cause the FAA to
register the Airframe, in due course, in the name of
the Owner Trustee and to issue to the Owner Trustee an
AC Form 8050-3 Certificate of Aircraft Registration
for the Airframe, and the Airframe will be duly
registered pursuant to and in accordance with the
provisions of 49 U.S.C. Section 44103(a);
4. the Owner Trustee has valid legal title to the Airframe
and the Aircraft is free and clear of all Liens,
except (i) the security interest created by the Trust
Indenture, as supplemented by the Trust Indenture
Supplement, and (ii) the rights of the parties under
the Lease, as supplemented by the Lease Supplement;
5. the rights of the Owner Trustee and the Lessee under the
Lease, as supplemented by the Lease Supplement, with
respect to the Aircraft, are perfected;
6. the Trust Indenture, as supplemented by the Trust
Indenture Supplement, constitutes a duly perfected
first priority security interest in the Aircraft and a
duly perfected first assignment of all the right,
title and interest of the Owner Trustee in, to and
under the Lease and the Lease Supplement (insofar as
such assignment affects an interest covered by the
recording system established by the FAA pursuant to 49
U.S.C. Section 44107), and no other registration of
the Airframe or filings other than filings with the
FAA (which have been duly effected) are necessary in
order to perfect in any applicable jurisdiction in the
United States (A) the Owner Trustee's title to the
Airframe or (B) such security interest and assignment
(insofar as such assignment affects an interest
covered by the recording system established by the FAA
pursuant to 49 U.S.C. Section 44107), it being
understood that no opinion is herein expressed as to
the validity, priority or enforceability of such
security interest and assignment under local law or as
to the recognition of the perfection of such security
interest and assignment as against third parties in
any legal proceeding outside the United States;
7. no authorization, approval, consent, license or order of,
or registration with, or the giving of notice to, the
FAA is required for the valid authorization, delivery
and performance of the Lease, as supplemented by the
Lease Supplement, the Trust Indenture, as supplemented
by the Trust Indenture Supplement, or the Trust
Agreement except for such filings as are referred to
above; and,
8. neither the execution and delivery by the Owner
Participant of the Participation Agreement or the
Trust Agreement, nor other consummation of the
transactions contemplated thereby by the Owner
Participant, requires the consent or approval of, or
the giving of notice to, or the registration of, or
the taking of any other action in respect of the FAA,
except (x) the registration of the Airframe, including
the submission of the Aircraft Registration
Application, the Owner Trustee Affidavit, the Owner
Participant Affidavit and the Trust Agreement to the
FAA and (y) the filings for recordation specified
elsewhere in this opinion.
No opinion is expressed as to the Airframe during any period
or periods of time during which it has not been subject to United States
registration.
No opinion is expressed as to laws other than Federal laws
of the United States. In rendering this opinion, we were subject to the
accuracy of the FAA, its employees and agents, in the filing, indexing and
recording of instruments filed with the FAA and in the search for
encumbrance cross-reference index cards for the Engines. Further, in
rendering this opinion we are assuming the validity and enforceability of
the above described instruments under local law. Since our examination was
limited to records maintained by the FAA, our opinion does not cover liens
which are perfected without the filing of notice thereof with the FAA, such
as federal tax liens, liens arising under Section 1368(a) of Title 29 of
the United States Code, possessory artisan's liens, or matters of which the
parties had actual notice. In rendering this opinion we are assuming that
there are no documents with respect to the Aircraft which have been filed
for recording under the recording system of the FAA but have not yet been
listed in the available records of such system as having been so filed.
In rendering this opinion we have relied upon the opinion of
the Assistant Chief Counsel of the Aeronautical Center dated _____________,
a copy of which is attached hereto.
Very truly yours,
Robert M. Peregrin
For the Firm
Annex I
Certain Definitions
Airframe, Engines and Aircraft
One (1) Airbus Industrie A300F4-605R aircraft bearing
manufacturer's serial number 779 and U.S. Registration No. N672FE (the
"Airframe") and two (2) General Electric CF6-80C2-A5F aircraft engines
bearing manufacturer's serial numbers ___-___ and ___-___ (the "Engines")
(the Airframe and the Engines are referred to collectively as the
"Aircraft").
Confidential Omissions
The Lease was filed with the FAA, with (i) the Basic Rent
(Schedule II), (ii) the Stipulated Loss Values (Schedule III), (iii) the
Termination Values (Schedule IV) and (iv) the Purchase Option Schedule
(Schedule V) omitted from the FAA filing counterpart thereof as containing
confidential financial information; and (v) the purchase price under Section
4.02(a)(F) set forth in Ancillary Agreement II, which was not attached to the
FAA filing counterpart of the Lease or otherwise filed with the FAA for
recordation.
SCHEDULE A
Lessee
Federal Express Corporation
2007 Corporate Avenue
Memphis, Tennessee 38132
Owner Trustee
State Street Bank and Trust Company
of Connecticut, National Association
Two International Place
4th Floor
Boston, Massachusetts 02110
Indenture Trustee, Pass Through Trustee & Subordination Agent
First Security Bank, National Association
79 South Main Street
Salt Lake City, Utah 84111
Owner Participant
PMCC Leasing Corporation
200 First Stamford Place
Stamford, Connecticut 06902
Underwriters
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
First Chicago Capital Markets, Inc.
Corporate Securities
One First National Plaza
Chicago, Illinois 60670
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
J.P. Morgan & Co.
60 Wall Street
New York, New York 10260
Liquidity Provider
Kredietbank N.V., New York Branch
125 West 55th Street
New York, New York 10019
EXHIBIT B
[FORM OF LEASE AGREEMENT]
[See Exhibit 4.e]
EXHIBIT C
[FORM OF INDENTURE]
[See Exhibit 4.b.1]
EXHIBIT D
[FORM OF TRUST AGREEMENT]
[See Exhibit 4.d]
EXHIBIT E
[FORM OF PURCHASE AGREEMENT ASSIGNMENT, AIRBUS CONSENT AND
AVSA CONSENT]
[See Exhibit B to Lease Agreement under Exhibit 4.e]
EXHIBIT F
[FORM OF ENGINE WARRANTY ASSIGNMENT AND ENGINE CONSENT]
[See Exhibit C to Lease Agreement under Exhibit 4.e]
EXHIBIT G-1
FORM OF ASSIGNMENT AND ASSUMPTION AGREEMENT
BENEFICIAL INTEREST TRANSFER AGREEMENT (this "Document"),
dated as of _______ __, ____, between ______________, a ______________
corporation ("Transferor") and ______________, a ______________ corporation
("Transferee").
W I T N E S S E T H :
WHEREAS, the parties hereto desire to effect (a) the
transfer by Transferor to Transferee of all of the rights, title and interest
of Transferor in and to its interest (the "Beneficial Interest") under the
Trust Agreement (Federal Express Corporation Trust No. N672FE), dated as of
May 1, 1997 (as heretofore amended, the "Trust Agreement"), between Transferor
and State Street Bank and Trust Company of Connecticut, National Association,
and the Lessor's Estate created thereunder, and all of Transferor's rights and
obligations under the Participation Agreement (Federal Express Corporation
Trust No. N672FE), dated as of May 1, 1997 (the "Participation Agreement"),
among Federal Express Corporation, as Lessee, State Street Bank and Trust
Company of Connecticut, National Association, not in its individual capacity,
except as otherwise stated therein, but solely as Owner Trustee, PMCC Leasing
Corporation, as Owner Participant, First Security Bank, National Association,
not in its individual capacity, except as otherwise stated therein, but solely
as Indenture Trustee, First Security Bank, National Association, not in its
individual capacity, except as otherwise stated therein, but solely as Pass
Through Trustee and First Security Bank, National Association, as
Subordination Agent, and under the other Operative Agreements and (b) the
acceptance by Transferee of such transfer and the assumption by Transferee of
such obligations of Transferor thereunder; and
WHEREAS, Section 7.03(d) of the Participation Agreement
permits such transfer and assumption upon satisfaction of certain conditions
heretofore or concurrently herewith being observed;
NOW, THEREFORE, in consideration of the premises and of
the mutual covenants and agreements herein contained, the parties hereto agree
as follows:
1. Definitions. Capitalized terms used herein without
definition shall have the respective meanings ascribed thereto in the
Participation Agreement.
2. Transfer. Transferor does hereby sell, convey,
assign, transfer and set over, unto Transferee, as of the Effective Time (as
defined below), all of Transferor's present and future right, title and
interest in and to (a) all of the Beneficial Interest and (b) all of the Owner
Participant's rights and obligations under the Participation Agreement, the
Tax Indemnity Agreement, the Trust Agreement and the other Operative
Agreements and any proceeds therefrom, together with all other documents and
instruments evidencing any of such right, title and interest, except such
rights of Transferor as have arisen or accrued to Transferor prior to the
Effective Time (including without limitation, the right to receive any amounts
due or accrued to Transferor under the Operative Agreements as of a time prior
to the Effective Time and the right to receive any indemnity payment pursuant
to the Participation Agreement or the Tax Indemnity Agreement, with respect to
events occurring prior to such time); all of the foregoing that is being
transferred under this paragraph 2, the "Transferred Interest".
3. Assumption. Transferee hereby accepts the transfer
of the Transferred Interest and, for the benefit of Transferor and the other
parties to the Participation Agreement, assumes and undertakes and agrees to
perform and discharge all of the duties and obligations of Transferor with
respect to the Transferred Interest whenever and wherever accrued (other than
duties and obligations of Transferor required to be performed by it on or
prior to the Effective Time). Transferee hereby confirms that, from and after
the Effective Time, Transferee (a) shall be deemed, to the extent set forth in
Section 2 hereof, the "Owner Participant" party to the Participation
Agreement, the Tax Indemnity Agreement, the Trust Agreement and the other
Operative Agreements and (b) shall be bound by all of the terms of the
Operative Agreements to the extent the same relate to the Transferred
Interest.
4. Release of Transferor. At the Effective Time,
Transferor shall be relieved of all of its duties and obligations with respect
to the Transferred Interest under the Operative Agreements, provided, however,
that Transferor shall in no event be released from any such duty or
obligations arising or relating to any event occurring prior to the Effective
Time, or on account of any breach by Transferor of any of its representations,
warranties, covenants or obligations set forth in the Operative Agreements, or
for any fraudulent or willful misconduct engaged in by it prior to the
Effective Time, or from any obligation that relates to any indemnity claimed
by Transferor or any Lessor's Lien attributable to Transferor.
5. Fees and Expenses. The fees, expenses and charges
of the parties to the Participation Agreement incurred in connection with the
transfer effected hereby shall be for the account of [specify
Transferor/Transferee].
6. Payments. Transferor hereby covenants and agrees
to pay over to Transferee, if and when received following the Effective
Time, any amounts (including any sums payable as interest in respect
thereof) paid on account of the Transferred Interest to or for the benefit
of Transferor, and Transferee hereby covenants and agrees to pay over to
Transferor, if and when received following the Effective Time, any amounts
(including any sums payable as interest in respect thereof) paid to or for
the benefit of Transferee that are not attributable to the Transferred
Interest and to which Transferor is otherwise entitled.
7. Investment Purpose. Transferee hereby represents
and warrants that, as of the date hereof, it is acquiring the Transferred
Interest for its account with no present intention of distributing such
Transferred Interest or any part thereof in any manner which would violate
the Securities Act of 1933, as amended, but without prejudice, however, to
the right of Transferee at all times to sell or otherwise dispose of all or
any part of such Transferred Interest in compliance with Section 7.03(d) of
the Participation Agreement.
8. Representations and Warranties of Transferor.
Transferor represents and warrants to Transferee that as of the Effective
Time:
(a) Organization and Power. Transferor is a corporation
duly organized, validly existing and in good standing under the
laws of the State of Delaware and has full corporate power,
authority and legal right to execute, deliver and perform this
Agreement and to enter into and carry out the transactions
contemplated hereby and in the other Operative Agreements (the
"Transactions").
(b) Authorization, Execution and Validity. This Agreement
has been duly authorized, executed and delivered by Transferor and
constitutes the legal, valid and binding obligation of Transferor,
enforceable against it in accordance with its terms except as
enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the rights of
creditors generally and by general principles of equity.
(c) Conflict. The execution, delivery and performance by
Transferor of this Agreement and compliance by Transferor with all
of the provisions hereof do not contravene any regulation or any
order of any governmental authority applicable to or binding on
Transferor, or contravene the provisions, or constitute a default
by Transferor under, its certificate of incorporation or by-laws
or any indenture, mortgage, contract or other agreement or
instrument to which Transferor is a party or by which Transferor
or any of its Properties is bound or affected.
(d) Consents. No consent, approval or authorization of, or
filing, registration or qualification with, or the giving of
notice or the taking of any other action with respect to, any
governmental authority on the part of Transferor is required in
connection with the execution, delivery and performance by
Transferor of this Agreement.
(e) Litigation. There are no proceedings pending or, to
the knowledge of Transferor, threatened against Transferor before
any governmental authority that would materially and adversely
affect the ability of Transferor to consummate the Transactions.
(f) No Liens. The Trust Estate is free of Lessor's Liens
attributable to Transferor.
(g) Compliance with Operative Agreements. Transferor has
fully performed all of its obligations under the Participation
Agreement and under each other Operative Agreement which
obligations by their terms are required to be satisfied or
performed prior to the Effective Time or prior to the consummation
of the Transactions.
(h) Default. As a result of the transfer effected hereby,
no Indenture Default attributable to the Owner Participant or the
Owner Trustee has occurred and is continuing.
Notwithstanding the foregoing or anything else contained in
this Agreement, it makes no representation or warranty in this Agreement
with respect to laws, rules or regulations relating to aviation or to the
nature or use of the equipment owned by the Owner Trustee, including,
without limitation, the airworthiness, value, condition, workmanship,
design, patent or trademark infringement, operation, merchantability or
fitness for use of the Aircraft.
9. Representations and Warranties of Transferee.
Transferee represents and warrants to Transferor and to the other parties
to the Participation Agreement that as of the Effective Time:
(a) Transferee is a corporation duly organized, validly
existing and in good standing under the laws of the State of [ ],
has the full corporate power, authority and legal right to carry
on its business as now conducted, and has full corporate power,
authority and legal right to execute, deliver and perform this
Agreement and to enter into and carry out the transactions
contemplated hereby and in the other Operative Agreements (the
"Transactions");
(b) Transferee has full corporate power, authority and
legal right to execute, deliver and enter into this Agreement and
the other Operative Agreements and full corporate power and
authority to perform its obligations thereunder, and such
execution, delivery and performance do not and will not contravene
any applicable law or any order of any governmental authority
applicable to or binding on the Transferee, or contravene the
provisions of, or constitute a default under, or result in the
creation of any Lien upon the property of the Transferee under,
its articles of incorporation or by-laws or any material
indenture, mortgage, contract or other agreement or instrument to
which the Transferee is a party or by which it or any of its
property may be bound or affected;
(c) the execution, delivery and performance of this
Agreement by the Transferee (i) has been duly authorized by all
necessary corporate action and (ii) does not require any approval
of the shareholders of the Transferee or any approval or consent
of, or notice to, any trustee or holders of any indebtedness or
obligation of the Transferee, except for such approvals and
consents as have already been obtained;
(d) this Agreement has been duly executed and delivered by
the Transferee, and constitutes the legal, valid and binding
obligation of the Transferee, enforceable against the Transferee
in accordance with its terms, except as the same may be limited by
bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting the rights of creditors generally and by general
principles of equity;
(e) there are no proceedings or actions pending or, to the
knowledge of the Transferee, threatened against the Transferee
before any governmental authority in which there is a reasonable
probability of an adverse determination that individually or in
the aggregate would materially and adversely impair the ability of
the Transferee to perform its obligations under this Agreement or
the Operative Agreements, or which involve the Transactions or
question the validity of any Operative Agreement to which the
Owner Participant is a party or any action taken or to be taken
pursuant thereto; and the Transferee is not in default with
respect to any order of any governmental authority which involves
the Transactions or the default under which would materially and
adversely affect the ability of the Transferee to perform its
obligations under this Agreement or any of the Operative
Agreements;
(f) no consent, approval, order or authorization of, giving
of notice to, or registration with, or taking of any other action
in respect of, any governmental authority is required under any
law for the execution and delivery by the Transferee of this
Agreement, or the carrying out by the Transferee of any of the
Transactions, other than any such consent, approval, order,
authorization, registration, notice or action as has been duly
obtained, given or taken;
(g) the Lessor's Estate is free of any Lessor's Liens
attributable to the Transferee;
(h) the Transferee, upon execution of this Agreement, will
not be in default under any of the Operative Agreements;
(i) no part of the funds to be used by it to acquire the
interests acquired by the Owner Participant under the
Participation Agreement constitutes assets (within the meaning of
ERISA and any applicable rules and regulations) of any employee
benefit plan subject to Title I of ERISA or of any plan or
individual retirement account subject to Section 4975 of the Code;
(j) Transferee is a "U.S. Person" as defined in Section
7701(a)(30) of the Code and is not a tax resident of another
country and if it shall at any time cease to be such a "U.S.
Person" or shall become a tax resident of another country, it
shall furnish to the Agent and each Certificate Holder an
indemnity, in form and substance reasonably satisfactory to such
Certificate Holder, for any Taxes that may be imposed on such
Holder as a result of its failure to be such a "U.S. Person" or
as a result of its being a tax resident of another country, and it
shall be personally liable for any debt service to the extent that
the receipt of rentals is reduced by reason of any withholding
Taxes that result from such failure to be such a "U.S. Person" or
from being a tax resident of another country;
(k) [After giving effect to a voting trust or similar
agreement(*), Transferee is a Citizen of the United States]
[applicable if Aircraft is registered in the United States or is
proposed to be so registered]
- ------------
(*) Such voting trust or similar agreement must be reasonably satisfactory
to the Lessor and the Indenture Trustee.
(l) On and as of the Effective Date, the representations
and warranties of the Owner Participant in Article 7 of the
Participation Agreement are true and correct as to the Transferee;
and
(m) Transferee satisfies the conditions applicable to a
transferee of the Beneficial Interest set forth in Section 7.03(d)
of the Participation Agreement, including without limitation, the
condition set forth in the last sentence thereof [and to the
extent the same has been requested by the Lessee or the Indenture
Trustee, Transferee has heretofore provided to the Lessee and the
Indenture Trustee its most recent audited financial statements,
which show a consolidated tangible net worth or combined capital
and surplus of at least $75,000,000] [remove bracketed language if
an Owner Participant Guaranty is provided].
(n) the Transferee has, independently and without reliance
upon any other party (including without limitation the Transferor)
and based on such documents and information as it has deemed
appropriate, made its own credit analysis and decision to enter
into this Agreement, and the Transferee has established adequate
means of obtaining from Lessee on a continuing basis information
pertaining to, and is now and on a continuing basis will be
completely familiar with, the financial condition, operations,
properties and prospects of Lessee.
Notwithstanding the foregoing or anything else contained in
this Agreement, it makes no representation or warranty in this Agreement
with respect to laws, rules or regulations relating to aviation or to the
nature or use of the equipment owned by the Owner Trustee, including,
without limitation, the airworthiness, value, condition, workmanship,
design, patent or trademark infringement, operation, merchantability or
fitness for use of the Aircraft, other than such laws, rules or regulations
relating to the citizenship requirements of it under applicable aviation
law.
10. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. 11.
Effectiveness. This Agreement shall be effective upon the mutual execution
and delivery of this Agreement (the "Effective Time").
12. Counterparts. This Agreement may be executed in
any number of counterparts, all of which together shall constitute a single
instrument. It shall not be necessary that any counterpart be signed by
both parties so long as each party shall sign at least one counterpart.
13. Beneficiaries. Each of the Owner Trustee, the
Indenture Trustee, the Pass Through Trustee and the Lessee, together with
their respective successors and permitted assigns, is and shall be deemed a
third party beneficiary of this Agreement entitled to enforce this
Agreement directly and in its own name and enforce any rights or claims of
the parties hereto.
14. Further Assurances. Each party agrees that from
time to time after the Effective Time, it shall execute and deliver or
cause to be executed and delivered such instruments, documents and papers,
and take all such further action as may be reasonably required in order to
consummate fully the purposes of this Agreement and to implement the
transactions contemplated hereby.
IN WITNESS WHEREOF, the parties hereto have executed
this Agreement as of the day and year first above written.
[TRANSFEROR]
By:___________________________
Name:
Title:
[TRANSFEREE]
By:___________________________
Name:
Title:
EXHIBIT G-2
FORM OF OWNER PARTICIPANT GUARANTY
TRANSFEREE'S PARENT GUARANTY, dated as of ___________
__, ____, (this "Guaranty") by ____________________, a ___________
corporation (the "Guarantor"), to State Street Bank and Trust Company of
Connecticut, National Association, in its individual capacity and as Owner
Trustee, First Security Bank, National Association, as Indenture Trustee
and Pass Through Trustee, and Federal Express Corporation, as Lessee
(collectively, together with their successors and assigns and the holders
from time to time of the Certificates, the "Beneficiaries").
W I T N E S S E T H :
WHEREAS, ___________, a ____________ corporation (the
"Transferor"), is party to the Participation Agreement (Federal Express
Corporation Trust No. N672FE), dated as of May 1, 1997 (as amended,
modified or supplemented from time to time, the "Participation Agreement"),
among Federal Express Corporation, as Lessee, PMCC Leasing Corporation, as
Owner Participant, State Street Bank and Trust Company of Connecticut,
National Association, not in its individual, except as otherwise stated
therein, but solely as Owner Trustee, First Security Bank, National
Association, not in its individual, except as otherwise stated therein, but
solely as Indenture Trustee, First Security Bank, National Association, not
in its individual, except as otherwise stated therein, but solely as Pass
Through Trustee and First Security Bank, National Association, as
Subordination Agent; and
WHEREAS, the Transferor wishes to transfer, among
other things, all of the rights, title and interest of the Transferor in
and to the Beneficial Interest under the Trust Agreement and the Lessor's
Estate created thereunder, and all of the Transferor's rights and
obligations under the Participation Agreement, the Trust Agreement and the
other Operative Agreements to __________________, a _______________
[corporation] (together with its successors and assigns, the "Transferee"),
a subsidiary of the Guarantor, pursuant to the Beneficial Interest Transfer
Agreement, dated as of the date hereof (the "Transfer Agreement"), between
the Transferor and the Transferee; and
WHEREAS, the terms of the Participation Agreement
provide that the aforementioned transfer is conditioned upon the execution
and delivery of this Guaranty by the Guarantor;
NOW, THEREFORE, in order that the Transferor may make
the aforementioned transfer to the Transferee, the Guarantor hereby agrees
with and for the benefit of the Beneficiaries as follows:
1. Definitions. Capitalized terms used herein
without definition shall have the respective meanings assigned thereto in
the Participation Agreement or the Transfer Agreement.
2. Guaranty. The Guarantor hereby unconditionally
and irrevocably guarantees, as primary obligor and not merely surety, to
the Beneficiaries the prompt and complete payment by the Transferee when
due of all payment obligations of the Transferee under the Operative
Agreements without offset or deduction and the timely performance of all
other obligations of the Transferee thereunder (such payment and other
obligations, the "Obligations"), and the Guarantor further agrees to pay
any and all expenses (including, without limitation, reasonable fees and
expenses of counsel) that may be paid or incurred by the Beneficiaries in
enforcing any rights with respect to, or collecting, any or all of the
Obligations and/or enforcing any rights with respect to, or collecting
against, the Guarantor under this Guaranty.
The Guarantor will not exercise any rights that it may
now or hereafter acquire against Transferee that arise from the existence,
payment, performance or enforcement of the Guarantor's Obligations under
this Guaranty, the Transferred Interest or the Operative Agreements,
including, without limitation, any right of subrogation, reimbursement,
exoneration, contribution or indemnification and any right to participate
in any claim or remedy of any Beneficiary against Transferee or any
collateral, whether or not such claim, remedy or right arises in equity or
under contract, statute or common law, including, without limitation, the
right to take or receive from Transferee, directly or indirectly, in cash
or other property or by set-off or in any other manner, payment or security
on account of such claim, remedy or right, unless and until all of the
Obligations have been performed in full and all other amounts payable under
this Guaranty shall have been paid in full in cash. If any amount shall be
paid to the Guarantor in violation of the preceding sentence at any time
prior to the final payment in full in cash of the Obligations and all other
amounts payable under this Guaranty, such amount shall be held in trust for
the benefit of any Beneficiary and shall forthwith be paid to such
Beneficiary to be credited and applied to the Obligations and all other
amounts payable under this Guaranty, whether matured or unmatured, in
accordance with the terms of the Operative Agreements, or to be held as
collateral for any Obligations or other amounts payable under this Guaranty
thereafter arising.
3. No Subrogation. Notwithstanding anything to the
contrary in this Guaranty, the Guarantor hereby agrees not to assert any
rights which may have arisen in connection with this Guaranty to be
subrogated to any of the rights (whether contractual, under the Bankruptcy
Code, under common law or otherwise) of any Beneficiary against the
Transferee for the payment of the Obligations until all of the Obligations
shall have been satisfied by payment and performance in full.
4. Amendments with Respect to the Obligations;
Waiver of Rights. The Guarantor shall remain fully obligated hereunder
notwithstanding that, without any reservation of rights against the
Guarantor and without notice to or further assent by the Guarantor, any
demand for payment or performance of any of the Obligations made by any
Beneficiary may be rescinded by such party and any of the obligations
continued, and the Obligations, may, from time to time, in whole or part,
be renewed, extended, amended, modified, accelerated, compromised, waived,
surrendered or released by any Beneficiary and any Operative Agreement may
be amended, modified, supplemented or terminated, in whole or in part, in
accordance with the provisions thereof from time to time. When making any
demand hereunder against the Guarantor, a Beneficiary may, but shall be
under no obligation to, make a similar demand on the Transferee, and any
failure by a Beneficiary to make any such demand or to collect any payments
from the Transferee or any release of the Transferee shall not relieve the
Guarantor of its obligations or liabilities hereunder, and shall not impair
or affect the rights and remedies, express or implied, or as a matter of
law, of any Beneficiary against the Guarantor. For the purposes hereof,
"demand" shall include the commencement and continuance of any legal
proceedings. The Guarantor represents and warrants that it is the parent
of the Transferee, and agrees that its obligations hereunder shall continue
unimpaired, even if the Guarantor is no longer an Affiliate of the
Transferee.
5. Guaranty Absolute and Unconditional. The
Guarantor guarantees that the Obligations will be paid and performed
strictly in accordance with the terms of the Transfer Agreement and the
Operative Agreements, regardless of any law, regulation or order now or
hereafter in effect in any jurisdiction affecting any such terms or the
rights of any Beneficiary with respect thereto. The obligations of the
Guarantor under this Guaranty are independent of the Obligations or any
other obligations of any other party, and a separate action or actions may
be brought and prosecuted against the Guarantor to enforce this Guaranty,
irrespective of whether the Transferee or any other party is joined in any
such action or actions. The Guarantor waives any and all notice of the
creation, renewal, extension or accrual of any of the Obligations and
notice of or proof of reliance by any Beneficiary upon this Guaranty or
acceptance of this Guaranty; the Obligations, and any of them, shall
conclusively be deemed to have been created, contracted or incurred, or
renewed, extended, amended or waived, in reliance upon this Guaranty; and
all dealings between the Transferee or the Guarantor and any Beneficiary
shall likewise be conclusively presumed to have been had or consummated in
reliance upon this Guaranty. The Guarantor waives, to the fullest extent
permitted by applicable law, diligence, presentment, promptness, protest,
mitigation of damages by the Beneficiaries demand for payment and notice of
default or nonpayment to or upon the Transferee or the Guarantor with
respect to the Obligations. The Guarantor further waives any right to
revoke this Guaranty, and acknowledges that this Guaranty is continuing in
nature and applies to all Obligations, whether existing now or in the
future. The Guarantor understands and agrees that, to the fullest extent
permitted by applicable law, this Guaranty shall be construed as a
continuing, absolute and unconditional guaranty of payment and performance
(and not merely of collectibility) without regard to:
(a) the validity, regularity or enforceability of the
Transfer Agreement, any Operative Agreement, or any of the
Obligations at any time or from time to time held by any
Beneficiary;
(b) any defense, set-off, rebate, adjustment, withholding,
deduction or counterclaim (other than a defense of payment or
performance) that may at any time be available to or be asserted
by the Transferee against any Beneficiary or any agreement or
instrument relating thereto or;
(c) any change in the time, manner or place of payment of,
or in any other term of, all or any of the obligations or any
other obligations of any other party under the Transfer Agreement,
the Operative Agreements, or any other amendment or waiver of or
any consent to departure from the Transfer Agreement or other
Operative Agreements;
(d) any taking, release or amendment or waiver of or consent
to departure from any other guaranty, for all or any of the
Obligations;
(e) any change, restructuring or termination of the
corporate structure or existence of the Guarantor or the
Transferee or any of the Affiliates of either;
(f) any defect in the title, condition, design, operation or
fitness of, or any interference with the operation, use or
possession of, the Aircraft;
(g) any failure to establish, perfect or preserve title to
or any security interest in or to the Aircraft or any other
collateral security for the Obligations; or
(h) any other circumstance whatsoever or any existence of or
reliance on any representation by any Beneficiary that might
otherwise constitute a defense available to, or a discharge of,
the Guarantor or any other guarantor or surety.
When pursuing its rights and remedies hereunder against the
Guarantor, any Beneficiary may, but shall be under no obligation to, pursue
such rights and remedies as it may have against the Transferee for the
Obligations, and any failure by any Beneficiary to pursue such other rights
or remedies or to collect any payments from the Transferee, or any release
of the Transferee, shall not, to the fullest extent permitted by applicable
law, relieve the Guarantor of any liability hereunder, and shall not impair
or affect the rights and remedies, whether express, implied or available as
a matter of law, of any Beneficiary against the Guarantor. This Guaranty
is a continuing guaranty and shall remain in full force and effect until
the earlier of (x) the date that all of the Obligations are satisfied by
payment and performance in full and (y) the date that all right, title and
interest of the Transferee shall have been transferred to a Person meeting
the requirements of Section 7.03(d) of the Participation Agreement in
accordance with said section; provided that this Guaranty shall remain in
full force and effect with respect to obligations relating to the period
prior to such transfer.
6. Reinstatement. This Guaranty shall continue to be
effective, or be reinstated, as the case may be, if at any time payment, or
any part thereof, of any of the Obligations is rescinded or must otherwise
be restored or returned by any Beneficiary upon the insolvency, bankruptcy
dissolution, liquidation or reorganization of the Transferee or the
Guarantor, or upon or as a result of the appointment of a receiver,
intervenor or conservator of, or trustee or similar officer for, the
Transferee or the Guarantor or any substantial part of its property, or
otherwise, all as though such payments had not been made and the Guarantor
agrees that it will indemnify any such Beneficiary on demand for all
reasonable costs and expenses (including, without limitation, reasonable
fees and expenses of counsel) by such Beneficiary in connection with such
rescission or restoration.
7. Payments. The Guarantor hereby guarantees that
payments hereunder shall be paid without set-off, counterclaim, deduction,
rebate, adjustment or withholding, and shall be made in U.S. Dollars in
immediately available funds.
8. Representations and Warranties. The Guarantor
hereby represents and warrants that:
(a) the Guarantor is a corporation duly organized, validly
existing and in good standing under the laws of the jurisdiction
of its incorporation and the Transferee is currently a subsidiary
of the Guarantor;
(b) the Guarantor has the power and authority and the legal
right to execute and deliver, and to perform its obligations
under, this Guaranty, and has taken all necessary corporate action
to authorize its execution, delivery and performance of this
Guaranty;
(c) this Guaranty constitutes a legal, valid and binding
obligation of the Guarantor enforceable in accordance with its
terms, except as enforceability may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting
the enforcement of creditors' rights generally;
(d) the execution, delivery and performance of this Guaranty
will not violate any provision of any requirement of law or
contractual obligation of the Guarantor or any of its constitutive
documents;
(e) no consent or authorization of, filing with, or other
act by or in respect of, any arbitrator or governmental authority
and no consent of any other person is required in connection with
the execution, delivery, performance, validity or enforceability
of this Guaranty;
(f) the Guarantor is a [a bank, savings institution, finance
company, leasing company or trust company, national banking
association acting for its own account or in a fiduciary capacity
as trustee or agent under any pension, retirement, profit sharing
or similar trust or fund, insurance company, fraternal benefit
society or corporation acting for its own account having a
combined capital and surplus (or, if applicable, consolidated
tangible net worth or its equivalent)] of not less than
$75,000,000 [and has, if the same have been requested by the
Lessee or the Indenture Trustee, heretofore furnished to the
Lessee and the Indenture Trustee copies of its most recent audited
financial statements];
(g) there are no conditions precedent to the effectiveness
of this Guaranty that have not been satisfied or waived; and
(h) the Guarantor has, independently and without reliance
upon any Beneficiary and based on such documents and information
as it has deemed appropriate, made its own credit analysis and
decision to enter into this Guaranty, and the Guarantor has
established adequate means of obtaining from Transferee on a
continuing basis information pertaining to, and is now and on a
continuing basis will be completely familiar with, the financial
condition, operations, properties and prospects of Transferee.
9. Severability. Any provision of this Guaranty that
is prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and
any such prohibition or unenforceability in any jurisdiction shall not
invalidate or render unenforceable such provision in any other
jurisdiction.
10. Jurisdiction; Waiver of Jury Trial, Etc.
(a) The Guarantor hereby irrevocably and
unconditionally submits, for itself and its property, to the nonexclusive
jurisdiction of any New York State court or federal court of the United
States of America sitting in New York, New York, and any appellate court
from any thereof, in any action or proceeding arising out of or relating to
this Guaranty, the Transfer Agreement or any Operative Agreement to which
it is or is to be a party, or for recognition or enforcement of any
judgment, and the Guarantor hereby irrevocably and unconditionally agrees
that all claims in respect of any such action or proceeding may be heard
and determined in any such New York State court or, to the extent permitted
by law, in such federal court. The Guarantor agrees that a final judgment
in any such action or proceeding shall be conclusive and may be enforced in
other jurisdictions by suit on the judgment or in any other manner provided
by law. Nothing in this Guaranty shall affect any right that any party may
otherwise have to bring any action or proceeding relating to this Guaranty,
the Transfer Agreement or any Operative Agreement to which it is or is to
be a party in the courts of any jurisdiction.
(b) The Guarantor irrevocably and unconditionally
waives, to the fullest extent it may legally and effectively do so, any
objection that it may now or hereafter have to the laying of venue of any
suit, action or proceeding arising out of or relating to this Guaranty, the
Transfer Agreement or any Operative Agreement to which it is or is to be a
party in any New York State or federal court. The Guarantor hereby
irrevocably waives, to the fullest extent permitted by law, the defense of
an inconvenient forum to the maintenance of such action or proceeding in
any such court.
11. Section Headings. The Section headings used in
this Guaranty are for convenience of reference only and are not to affect
the construction hereof or be taken into consideration in the
interpretation hereof.
12. No Waiver; Cumulative Remedies. No Beneficiary
shall by any act (except by a written instrument pursuant to Section 13
hereof), delay, indulgence, omission or otherwise be deemed to have waived
any right or remedy hereunder or to have acquiesced in any breach of any of
the terms and conditions hereof. No failure to exercise, nor any delay in
exercising, on the part of any Beneficiary, any right, power or privilege
hereunder shall operate as a waiver thereof. No single or partial exercise
of any right, power or privilege hereunder shall preclude any other or
further exercise thereof or the exercise of any other right power or
privilege. A waiver by a Beneficiary of any right or remedy hereunder on
any one occasion shall not be construed as a bar to any right or remedy
that such Beneficiary would otherwise have on any future occasion. The
rights and remedies herein provided are cumulative, may be exercised singly
or concurrently and are not exclusive of any rights or remedies provided by
law.
13. Amendments and Waivers. None of the terms or
provisions of this Guaranty may be waived, amended or supplemented or
otherwise modified except by a written instrument executed by the Guarantor
and each Beneficiary.
14. Successors and Assigns. This Guaranty shall be
binding upon the successors and assigns of the Guarantor and shall inure to
the benefit of the Beneficiaries and their respective successors and
permitted assigns but Guarantor may not assign this Guaranty without prior
written consent of the Beneficiaries except to an assignee making, as of
the date of such assignment, (i) representations and warranties
substantially similar to those contained in Section 8 hereof and (ii) a
representation that it is a U.S. citizen, unless, in the case of the
preceding clause (ii) any of (a) the aircraft is not then registered in the
United States nor contemplated to be so registered or (b) a voting trust or
similar arrangement reasonably satisfactory to the Beneficiaries is in
place with respect to such registration or (c) it is not necessary for the
Guarantor to be a U.S. citizen in order for the aircraft to remain
registered in the United States.
15. GOVERNING LAW. THIS GUARANTY SHALL BE GOVERNED
BY AND BE CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAW OF THE STATE
OF NEW YORK.
16. Notices. All notices, requests and demands to or
upon the Guarantor or any Beneficiary to be effective shall be in writing
and, unless otherwise expressly provided herein, shall be deemed to have
been duly given or made, when delivered by hand or by mail, upon receipt,
or, when delivered by facsimile transmission, upon being sent and
confirmed, addressed (a) in the case of the Guarantor, to the Guarantor at
its office at [_________________________________], and (b) in the case of
any Beneficiary, to such Beneficiary at the address provided for such
Beneficiary in or pursuant to the Participation Agreement.
IN WITNESS WHEREOF, the undersigned has caused this Guaranty to
be duly executed and delivered by its duly authorized officer as of the day
and year first above written.
[NAME OF GUARANTOR]
_________________________________
Name:
Title:
PARTICIPATION AGREEMENT
(FEDERAL EXPRESS CORPORATION TRUST NO. N673FE)
Dated as of May 1, 1997
among
FEDERAL EXPRESS CORPORATION,
Lessee
PMCC LEASING CORPORATION,
Owner Participant
STATE STREET BANK AND TRUST COMPANY OF CONNECTICUT,
NATIONAL ASSOCIATION,
Not in Its Individual Capacity
Except as Otherwise Expressly
Set Forth Herein, but Solely as Owner Trustee,
Owner Trustee
FIRST SECURITY BANK, NATIONAL ASSOCIATION,
Indenture Trustee
FIRST SECURITY BANK, NATIONAL ASSOCIATION,
Pass Through Trustee
and
FIRST SECURITY BANK, NATIONAL ASSOCIATION,
Subordination Agent
______________________________
LEVERAGED LEASE OF ONE AIRBUS A300F4-605R AIRCRAFT
SERIAL NO. 780, REGISTRATION NO. N673FE
TABLE OF CONTENTS
Page
Initial Recitals........................................................... 1
ARTICLE 1
DEFINITIONS............................................................. 3
ARTICLE 2
ISSUANCE OF PASS THROUGH CERTIFICATES;
ISSUANCE AND PURCHASE OF CERTIFICATES
Section 2.01. Transfer of Funds........................................ 4
Section 2.02. Certificates............................................. 5
Section 2.03. Owner Participant's Instructions to Owner Trustee........ 5
Section 2.04. Pre-Delivery Date Adjustments to Basic Rent, Stipulated
Loss Values and Termination Values....................... 5
ARTICLE 3
PARTICIPATION IN INVESTMENT ON DELIVERY DATE;
DELIVERY OF AIRCRAFT
Section 3.01. Lessee's Notice of Delivery Date......................... 6
Section 3.02. Commitments to Participate in Purchase Price............. 6
Section 3.03. Owner Participant's Instructions to Owner Trustee........ 9
Section 3.04. Transaction Costs........................................ 9
Section 3.05. Postponement of Delivery Date............................ 9
Section 3.06. Closing.................................................. 11
ARTICLE 4
CONDITIONS PRECEDENT
Section 4.01. Conditions Precedent (Certificate Closing Date).......... 11
Section 4.02. Conditions Precedent (Delivery Date)..................... 20
Section 4.03. Opinion of Special Aviation Counsel Upon Registration.... 28
ARTICLE 5
CONDITIONS PRECEDENT TO LESSEE'S OBLIGATIONS
Section 5.01. Conditions Precedent to Lessee's Obligations............. 29
ARTICLE 6
LESSEE'S REPRESENTATIONS, WARRANTIES AND COVENANTS
Section 6.01. Lessee's Representations and Warranties.................. 29
Section 6.02. Offering by Lessee....................................... 35
Section 6.03. Certain Covenants of Lessee.............................. 36
Section 6.04. Survival of Representations and Warranties............... 43
ARTICLE 7
OTHER PARTIES' REPRESENTATIONS, WARRANTIES AND COVENANTS
Section 7.01. Acquisitions and Offerings of Interests in Lessor's
Estate................................................... 44
Section 7.02. Citizenship.............................................. 44
Section 7.03. Representations, Warranties and Covenants of Owner
Participant.............................................. 45
Section 7.04. Representations, Covenants and Warranties of SSB and the
Owner Trustee............................................ 50
Section 7.05. Representations, Warranties and Covenants of the Indenture
Trustee.................................................. 53
Section 7.06. Indenture Trustee's Notice of Default.................... 54
Section 7.07. Releases from Indenture.................................. 54
Section 7.08. Covenant of Quiet Enjoyment.............................. 54
Section 7.09. Pass Through Trustee's Representations and Warranties.... 54
Section 7.10. Survival of Representations, Warranties and Covenants.... 55
Section 7.11. Lessee's Assumption of the Certificates.................. 56
Section 7.12. Indebtedness of Owner Trustee............................ 58
Section 7.13. Compliance with Trust Agreement, Etc..................... 58
Section 7.14. Subordination Agent's Representations, Warranties and
Covenants................................................ 58
ARTICLE 8
TAXES
Section 8.01. Lessee's Obligation to Pay Taxes......................... 60
Section 8.02. After-Tax Basis.......................................... 66
Section 8.03. Time of Payment.......................................... 66
Section 8.04. Contests................................................. 67
Section 8.05. Refunds.................................................. 69
Section 8.06. Lessee's Reports......................................... 69
Section 8.07. Survival of Obligations.................................. 70
Section 8.08. Payment of Taxes......................................... 70
Section 8.09. Reimbursements by Indemnitees Generally.................. 70
Section 8.10. Special Indemnity........................................ 71
ARTICLE 9
GENERAL INDEMNITY
Section 9.01. Generally................................................ 71
Section 9.02. After-Tax Basis.......................................... 75
Section 9.03. Subrogation.............................................. 75
Section 9.04. Notice and Payment....................................... 75
Section 9.05. Refunds.................................................. 76
Section 9.06. Defense of Claims........................................ 76
Section 9.07. Survival of Obligations.................................. 77
Section 9.08. Effect of Other Indemnities.............................. 77
Section 9.09. Interest................................................. 78
Section 9.10. Special Indemnity........................................ 78
ARTICLE 10
TRANSACTION COSTS
Section 10.01. Transaction Costs and Other Costs....................... 78
ARTICLE 11
SUCCESSOR OWNER TRUSTEE
Section 11.01. Appointment of Successor Owner Trustee.................. 81
ARTICLE 12
LIABILITIES AND INTERESTS OF THE OWNER PARTICIPANT AND HOLDERS
Section 12.01. Liabilities of the Owner Participant.................... 82
Section 12.02. Interest of Holders of Certificates..................... 82
ARTICLE 13
OTHER DOCUMENTS
Section 13.01. Consent of Lessee to Other Documents.................... 83
Section 13.02. Further Assurances...................................... 83
Section 13.03. Pass Through Trustee's and Subordination Agent's
Acknowledgment.......................................... 83
ARTICLE 14
NOTICES
Section 14.01. Notices................................................. 83
ARTICLE 15
REFINANCING/REOPTIMIZATION
Section 15.01. Refinancing............................................. 85
Section 15.02. Reoptimization.......................................... 88
ARTICLE 16
[RESERVED]
ARTICLE 17
MISCELLANEOUS
Section 17.01. Owner for Federal Tax Purposes.......................... 90
Section 17.02. Collateral Account...................................... 90
Section 17.03. Counterparts............................................ 91
Section 17.04. No Oral Modifications................................... 91
Section 17.05. Captions................................................ 91
Section 17.06. Successors and Assigns.................................. 91
Section 17.07. Concerning the Owner Trustee, Indenture Trustee and the
Pass Through Trustee.................................... 92
Section 17.08. Severability............................................ 92
Section 17.09. Public Release of Information........................... 92
Section 17.10. Certain Limitations on Reorganization................... 93
Section 17.11. GOVERNING LAW........................................... 93
Section 17.12. Section 1110 Compliance................................. 93
Section 17.13. Reliance of Liquidity Providers......................... 93
ARTICLE 18
CONFIDENTIALITY
Section 18.01. Confidentiality......................................... 94
SCHEDULE I Certificate Information
SCHEDULE II Definitions
SCHEDULE III Permitted Country List
SCHEDULE IV Debt Portion
EXHIBIT A(1)(a)(i) Opinion of Lessee's Counsel
(Certificate Closing Date)
EXHIBIT A(1)(a)(ii) Opinion of Lessee's Counsel
(Delivery Date)
EXHIBIT A(1)(b)(i) Opinion of Lessee's Special Counsel
(Certificate Closing Date)
EXHIBIT A(1)(b)(ii) Opinion of Lessee's Special Counsel
(Delivery Date)
EXHIBIT A(2)(a) Opinion of Owner Participant's and Owner Participant
Guarantor's Special Counsel
EXHIBIT A(2)(b) Opinion of Owner Participant's and Owner Participant
Guarantor's Counsel
EXHIBIT A(3) Opinion of Indenture Trustee's Special Counsel
EXHIBIT A(4)(a)(i) Opinion of Owner Trustee's Special Counsel
(Certificate Closing Date)
EXHIBIT A(4)(a)(ii) Opinion of Owner Trustee's Special Counsel
(Delivery Date)
EXHIBIT A(5) Opinion of Pass Through Trustee's and Subordination
Agent's Special Counsel
EXHIBIT A(6)(a) Opinion of Liquidity Provider's Counsel
EXHIBIT A(6)(b) Opinion of Liquidity Provider's Special Counsel
EXHIBIT A(7) Opinion of Engine Manufacturer's Counsel
EXHIBIT A(8) Opinion of Manufacturer's and AVSA's Counsel
EXHIBIT A(9) Opinion of Special Aviation Counsel
EXHIBIT B Form of Lease Agreement
EXHIBIT C Form of Indenture
EXHIBIT D Form of Trust Agreement
EXHIBIT E Form of Purchase Agreement Assignment, Consent and
Agreement, AVSA Consent and Agreement
EXHIBIT F Form of Engine Warranty Assignment and Engine Consent
EXHIBIT G-1 Form of Assignment and Assumption Agreement
EXHIBIT G-2 Form of Owner Participant Guaranty
PARTICIPATION AGREEMENT
(FEDERAL EXPRESS CORPORATION TRUST NO. N673FE)
PARTICIPATION AGREEMENT (FEDERAL EXPRESS CORPORATION TRUST NO.
N673FE) dated as of May 1, 1997 (this "Agreement") among FEDERAL EXPRESS
CORPORATION, a Delaware corporation (herein, together with its successors and
permitted assigns, the "Lessee"), PMCC LEASING CORPORATION, a Delaware
corporation (herein, together with its successors and permitted assigns, the
"Owner Participant"), STATE STREET BANK AND TRUST COMPANY OF CONNECTICUT,
NATIONAL ASSOCIATION, a national banking association, not in its individual
capacity, except as otherwise expressly stated herein, but solely as owner
trustee under the Trust Agreement referred to below (in such capacity as
trustee, together with its successors and permitted assigns, the "Owner
Trustee"), FIRST SECURITY BANK, NATIONAL ASSOCIATION, a national banking
association, not in its individual capacity, except as otherwise expressly
stated herein, but solely as indenture trustee under the Indenture referred to
below (in such capacity as trustee, together with its successors and permitted
assigns, the "Indenture Trustee"), FIRST SECURITY BANK, NATIONAL ASSOCIATION,
a national banking association, not in its individual capacity, except as
otherwise expressly stated herein, but solely as pass through trustee of three
separate Pass Through Trusts (in such capacity as trustee, together with its
successors and permitted assigns, the "Pass Through Trustee"), and FIRST
SECURITY BANK, NATIONAL ASSOCIATION, a national banking association, not in its
individual capacity, except as otherwise expressly stated herein, but solely as
subordination agent (in such capacity as trustee, together with its successors
and permitted assigns, the "Subordination Agent").
W I T N E S S E T H :
WHEREAS, capitalized terms used herein shall have the respective
meanings set forth or referred to in Article 1 hereof.
WHEREAS, the Owner Participant has entered into the Trust Agreement
with the Owner Trustee in its individual capacity, substantially in the form
of Exhibit D hereto, pursuant to which Trust Agreement the Owner Trustee
agrees, among other things, to hold the Lessor's Estate for the benefit of the
Owner Participant on the terms specified in the Trust Agreement, subject to
the Lien of the Indenture.
WHEREAS, on the Pass Through Closing Date, a closing will occur
with respect to the public offering of Pass Through Certificates issued by
each Pass Through Trust, an allocable amount of the proceeds of which
offering will be used by the Pass Through Trustee to purchase for each such
Pass Through Trust the Certificates of the Series and Maturity applicable
thereto.
WHEREAS, on the Certificate Closing Date, the Owner Trustee and the
Indenture Trustee will enter into the Indenture for the benefit of the Pass
Through Trustee, pursuant to which the Owner Trustee is issuing the
Certificates to the Subordination Agent on behalf of the Pass Through Trustee
as evidence of the loans made by the Pass Through Trustee to the Owner
Trustee, the proceeds of which loans will be deposited by the Indenture
Trustee on behalf of the Owner Trustee in the Collateral Account.
WHEREAS, concurrently with the execution and delivery hereof, (i)
Kredietbank N.V., acting through its New York Branch will enter into two
revolving credit agreements (each, a "Liquidity Facility"), one for the
benefit of the holders of Pass Through Certificates of each of the Pass
Through Trusts for the Series A Certificates and the Series B Certificates,
with the Subordination Agent, as agent for the Pass Through Trustee on behalf
of each such Pass Through Trust; and (ii) the Pass Through Trustee, each
Liquidity Provider and the Subordination Agent will enter into the
Intercreditor Agreement.
WHEREAS, the Certificates will be held by the Subordination Agent
pursuant to the Intercreditor Agreement on behalf of the Pass Through Trustee
for each of the Pass Through Trusts.
WHEREAS, prior to the Delivery Date, the Certificates will be secured
by the Liquid Collateral.
WHEREAS, pursuant to the terms of the Trust Agreement, the Owner
Trustee will be authorized and directed by the Owner Participant:
(a) on the Delivery Date, to purchase the Aircraft from AVSA;
(b) on the Certificate Closing Date, to execute and deliver the
Lease substantially in the form of Exhibit B hereto, pursuant to which,
subject to the terms and conditions set forth in said Lease, the Owner
Trustee agrees to lease to the Lessee, and the Lessee agrees to lease from
the Owner Trustee, the Aircraft on the Delivery Date, such lease to be
effected by the execution and delivery on the Delivery Date of a Lease
Supplement, in the form of Exhibit A to the Lease, covering the Aircraft
and incorporating by reference all of the terms of the Lease;
(c) on the Certificate Closing Date, to execute and deliver the
Indenture, substantially in the form of Exhibit C hereto, for the benefit
of the Holders from time to time of the Certificates, pursuant to which the
Owner Trustee agrees, among other things, (A) to deposit, mortgage and
pledge with the Indenture Trustee, as part of the Trust Indenture Estate,
all of the Lessor's Estate but not Excepted Payments, (B) on the
Certificate Closing Date, to issue Certificates substantially in the form
set forth in Exhibit B to the Indenture, the proceeds of the sale of which
will be held by the Indenture Trustee on behalf of the Owner Trustee in
the Collateral Account until released in accordance with the terms
hereof and of the Indenture, and (C) on the Delivery Date, to execute
and deliver the Indenture and Security Agreement Supplement,
substantially in the form of Exhibit A to the Indenture, covering the
Aircraft and supplementing the Indenture;
(d) on the Certificate Closing Date, to execute and deliver the
Purchase Agreement Assignment, whereby the Lessee assigns to the Owner
Trustee the right to purchase the Aircraft from AVSA and certain of the
Lessee's rights and interests under the Purchase Agreement and the Consent
and Guaranty to the extent that the same relate to the Aircraft (except to
the extent reserved in said Purchase Agreement Assignment), which Purchase
Agreement Assignment is to include as an annex a Consent and Agreement
executed by the Manufacturer and the AVSA Consent and Agreement executed by
AVSA, said Purchase Agreement Assignment, Consent and Agreement and AVSA
Consent and Agreement to be substantially in the form of Exhibit E hereto;
and
(e) on the Certificate Closing Date, to execute and deliver the
Engine Warranty Assignment, whereby the Lessee assigns to the Owner Trustee
certain of the Lessee's rights and interests under the GTA to the extent
that the same relate to the Engines (except to the extent reserved in the
Engine Warranty Assignment), which Engine Warranty Assignment is to include
as an annex an Engine Consent executed by the Engine Manufacturer, said
Engine Warranty Assignment and Engine Consent to be substantially in the
form of Exhibit F hereto.
WHEREAS, on the Delivery Date pursuant to and subject to the terms
and conditions of this Agreement, the Purchase Agreement Assignment, the
Engine Warranty Assignment, AVSA's FAA Bill of Sale, AVSA's Warranty Bill
of Sale and the Airbus Guaranty, the Owner Trustee will purchase, and
receive title to, the Aircraft from AVSA and lease the Aircraft to the
Lessee pursuant to the Lease.
NOW, THEREFORE, in consideration of the mutual covenants contained in
this Agreement and other good and valuable consideration, receipt of which is
hereby acknowledged, the parties hereto agree as follows:
ARTICLE 1
DEFINITIONS
Unless otherwise specifically provided herein, the definitions set
forth in Schedule II hereto are incorporated herein for all purposes of this
Agreement and shall be equally applicable to both the singular and the plural
forms of the terms so defined.
ARTICLE 2
ISSUANCE OF PASS THROUGH CERTIFICATES;
ISSUANCE AND PURCHASE OF CERTIFICATES
Section 2.01. Transfer of Funds.
(a) On or before the Pass Through Closing Date, the Pass Through
Trustee and the Lessee, in accordance with the Pass Through Agreement, shall
enter into the Series Supplements, and, subject to the terms and conditions
set forth therein, on the Pass Through Closing Date (i) the Lessee shall
direct the Underwriters to execute a wire transfer or intra-bank transfer to
the Pass Through Trustee in the amount of the total proceeds payable pursuant
to the Underwriting Agreement with respect to the Pass Through Certificates
and (ii) the Pass Through Trustee shall deliver the Pass Through Certificates
to the Underwriters upon receipt by the Pass Through Trustee of such proceeds.
(b) Subject to the satisfaction or waiver of the conditions set
forth herein, on the Certificate Closing Date, on behalf of each Pass Through
Trust, from an allocable amount of the proceeds of the sale of the related
Pass Through Certificates, the Pass Through Trustee shall purchase the
Certificates specified for such Pass Through Trust on Schedule I hereto. For
each Pass Through Trust, the Pass Through Trustee shall pay an amount equal to
the principal amount of Certificates of the Series and Maturity that relates
to such Pass Through Trust, which amounts in the aggregate shall equal the
aggregate principal amount of the Certificates as specified in Section 2.04 of
the Indenture. The aggregate amount payable by the Pass Through Trustee
pursuant to this Section 2.01(b) shall be payable by wire transfer or
intra-bank transfer to the Indenture Trustee on behalf of the Owner Trustee.
(c) On the Certificate Closing Date, the Indenture Trustee shall,
on behalf of the Owner Trustee, deposit, by wire transfer or intra-bank
transfer, the amounts received by it pursuant to Section 2.01(b) hereof in the
Collateral Account pursuant to the Indenture.
(d) On the Certificate Closing Date concurrently with the events
specified in Section 2.01(b) hereof, the parties hereto shall execute and
deliver, to the extent they are parties thereto, and consent to the execution
and delivery of (if they are not parties thereto), the Lease (other than the
Lease Supplement), the Indenture (other than the Indenture and Security
Agreement Supplement), and the other documents listed in Section 4.01(d)
hereof, and the Owner Trustee shall execute and deliver to the Indenture
Trustee for authentication, and the Indenture Trustee shall authenticate and
deliver to the Subordination Agent on behalf of the Pass Through Trustee for
each of the Pass Through Trusts, upon the request of the Owner Trustee, the
Certificates as provided in Section 2.02 hereof.
(e) The Closings shall take place at the offices of Davis Polk &
Wardwell, 450 Lexington Avenue, New York, New York 10017.
Section 2.02. Certificates. Subject to the satisfaction or waiver
of the conditions set forth herein, on the Certificate Closing Date, the Owner
Participant will instruct the Owner Trustee to execute and deliver to the
Indenture Trustee, and the Indenture Trustee shall authenticate and deliver,
upon the request of the Owner Trustee, to the Subordination Agent on behalf of
the Pass Through Trustee for each of the Pass Through Trusts, the Certificates
specified for such Pass Through Trust on Schedule I attached hereto, which (i)
shall be issued in the principal amount and in the Series and Maturity set
forth for such Certificate in Schedule I hereto, (ii) shall bear interest at
the interest rate set forth for such Certificate in Schedule I hereto, (iii)
shall be issued in such form and on such terms as are specified in the
Indenture, (iv) shall be dated and authenticated on the Certificate Closing
Date and shall bear interest from the Certificate Closing Date and (v) shall
be registered in the name of the Subordination Agent on behalf of the Pass
Through Trustee for such Pass Through Trust.
Section 2.03. Owner Participant's Instructions to Owner Trustee.
The Owner Participant agrees that the issuance of Certificates in
accordance with the terms hereof shall constitute, without further act,
authorization and direction by the Owner Participant to the Owner Trustee
to take the action specified in Section 1.01 (other than clauses (a) and
(c)) of the Trust Agreement and confirmation that all conditions to closing
in respect of the Certificate Closing Date set forth in Section 4.01 (but
not Section 4.02) hereof were either met to the satisfaction of the Owner
Participant or, if not so met, were in any event waived by it.
Section 2.04. Pre-Delivery Date Adjustments to Basic Rent,
Stipulated Loss Values and Termination Values. On or prior to the Delivery
Date, the percentages for Basic Rent referred to in Schedule II of the Lease
and the percentages for Stipulated Loss Value and Termination Value in
Schedule III and Schedule IV, respectively, of the Lease shall be adjusted
(upward or downward), subject to the procedures set forth in Section 3.04 of
the Lease and the minimum values established by Section 3.05 of the Lease and
the definitions of Stipulated Loss Value and Termination Value, to reflect
changes in the pricing assumptions with respect to (i) the Delivery Date being
other than September 11, 1997, (ii) a different rate of interest or amortization
schedule assumed by the Owner Participant in calculating such percentages from
that assumed by the Owner Participant in originally calculating such
percentages, (iii) Transaction Costs being other than as assumed in Section
10.01 hereof, (iv) any change in the length of the Basic Term (but in no event
shall the Term exceed 23.25 years) and (v) a Change in Tax Law which occurs
after the date of the execution of this Agreement but on or prior to the
Delivery Date. Notwithstanding anything herein to the contrary, the Lessee
shall have no obligation to enter into the transaction contemplated by this
Agreement other than with respect to Transaction Costs as described in Section
2.03 below and its obligation to purchase the Aircraft as provided in Section
3.05(a) hereof if, as a result of a Change in Tax Law after the date of
execution of this Agreement but on or prior to the Delivery Date, the Net
Present Value of Rents is increased by 100 basis points or more.
ARTICLE 3
PARTICIPATION IN INVESTMENT ON DELIVERY DATE;
DELIVERY OF AIRCRAFT
Section 3.01. Lessee's Notice of Delivery Date. The Lessee agrees
to give the Owner Participant, the Indenture Trustee, the Owner Trustee and
the Pass Through Trustee at least three (3) Business Days' written or
facsimile notice prior to the Delivery Date (which notice shall be effective
only if received not later than 10:00 a.m. (New York City time) on the date
that is at least three (3) Business Days prior to the Delivery Date), which
Delivery Notice shall specify the amount of the Purchase Price, the amount of
the Owner Participant's Commitment, the Debt Portion, the Delivery Date for
the Aircraft, the serial number of the Airframe and each Engine, and the
Aeronautics Authority registration number for the Aircraft.
Section 3.02. Commitments to Participate in Purchase Price. (a)
Participation in Purchase Price. Subject to the terms and conditions of this
Agreement, on the Delivery Date, (i) subject to the proviso to this Section
3.02(a), the Indenture Trustee agrees to release the Debt Portion or such
lesser amount as may then be held in the Collateral Account together with the
Lessee Shortfall (as defined in clause (iii) below), if any, to the Owner
Trustee for application to the Purchase Price as provided below, (ii) the
Owner Participant agrees to participate in the Lessor's payment of the
Purchase Price by making an investment in the beneficial ownership of the
Lessor's Estate in an amount equal to the amount set forth in Ancillary
Agreement II, (iii) subject to the proviso to this Section 3.02(a), the Lessee
agrees to pay to the Indenture Trustee the excess, if any, of (I) the Debt
Portion over (II) such amount as may then be held in the Collateral Account
(the "Lessee Shortfall") as provided in Section 17.02(a) hereof, and (iv)
pursuant to the Purchase Agreement as assigned pursuant to the Purchase
Agreement Assignment, AVSA shall sell the Aircraft to the Owner Trustee and
the Owner Trustee shall immediately thereafter lease the Aircraft to the
Lessee pursuant to the Lease. In consideration for the assignment to the
Owner Trustee by the Lessee under the Purchase Agreement Assignment of the
Lessee's right to purchase the Aircraft for the remaining balance due under
the Purchase Agreement and for the transfer of title to the Aircraft from
AVSA to the Owner Trustee, the following cash payments will be made by wire
transfer of immediately available funds on the Delivery Date: (A) by the
Owner Trustee to AVSA, an amount equal to the remaining balance due to AVSA
under the Purchase Agreement for the Aircraft, as evidenced by the Invoice,
or if the proviso to this Section 3.02(a) is applicable, such amount as it
shall have received from the Owner Participant not to exceed such remaining
balance due to AVSA, (B) by the Owner Trustee to the Lessee, an amount
equal to the Purchase Price (or if the proviso to this Section 3.02(a) is
applicable, the amount received from the Owner Participant) minus the cash
payment to AVSA pursuant to clause (A) above and (C) by the Indenture
Trustee, on behalf of the Owner Trustee, to the Lessee the excess of any
amounts as may then be held in the Collateral Account over the Debt
Portion; provided, however, that if (1) the Delivery Date has been
postponed, (2) the investments contemplated by Section 2.14(b) of the
Indenture have been made, (3) such investments do not mature on the
rescheduled Delivery Date and (4) the Lessee elects not to break such
investments, then the Indenture Trustee shall not release amounts in the
Collateral Account to the Owner Trustee and the Lessee shall instead pay to
AVSA any balance of the Purchase Price remaining after payment to AVSA by
the Owner Trustee as contemplated by clause (A) above and the Indenture
Trustee shall pay to the Lessee at the end of the applicable investment
period referred to in Section 2.14(b) of the Indenture all amounts then
held in the Collateral Account.
(b) Payment of Commitment. The Owner Participant agrees with the
Lessee and only with the Lessee on behalf of the Owner Trustee, subject to the
terms and conditions of this Agreement, to make the amount of its Commitment
available for and on account of the Owner Trustee on the Delivery Date
specified in the Delivery Notice pursuant to Section 3.03 hereof by wire
transfer, initiated by 10:00 a.m. (New York City time on such day) of such
amount in immediately available funds, to the Owner Trustee for deposit in its
account at State Street Bank and Trust Company, Boston, Massachusetts, ABA
No. 011-000-028, A/C No. 9900-314-7, Attention: Christy O'Connor, Re: FedEx
Equity Payments Account. The amount of the Owner Participant's Commitment
shall be held for the account of the Owner Participant by the Owner Trustee
until released by the Owner Participant or its special counsel at closing or
until returned to the Owner Participant in accordance with Section 3.02(c)
hereof.
(c) No Obligation to Increase Commitments; Delayed Delivery. (i) If
the Indenture Trustee shall default in its obligation to make the amount of
its Debt Portion available pursuant hereto, the Owner Participant shall have
no obligation to make any portion of such Debt Portion available or to
increase the amount of its Commitment, and the obligations of the Owner
Participant shall remain subject to the terms and conditions of this
Agreement, until no later than September 30, 1997 (provided, however, if
the Delivery Date for the Aircraft is subsequent to the delivery date for
the aircraft bearing manufacturer's serial number 781 (and the actual
delivery date for that aircraft is on or prior to September 30, 1997) then
the foregoing date shall be December 31, 1997).
(ii) Subject to the provisions of Section 3.05 hereof, if the closing
of the transactions contemplated by the Operative Agreements shall not have
been consummated by 2:00 p.m. (New York City time), or such earlier time as
directed by the Lessee, on the Scheduled Delivery Date, the Owner Trustee
shall, if instructed in writing by the Lessee, at the risk and expense of the
Lessee, use its reasonable best efforts to cause the Owner Participant's
Commitment to be invested and reinvested to the extent practicable at the
direction received by it from the Lessee (with a copy to the Owner
Participant), at the risk of the Lessee, in Permitted Investments consisting
of either commercial paper or time deposits; provided, however, that in the
absence of instructions by 2:00 p.m. (New York City time) the Owner Trustee
shall use its reasonable best efforts to cause such amount or the proceeds
thereof to be invested and reinvested to the extent practicable in overnight
Eurodollar time deposits. Earnings on any such investments shall be applied
to the Lessee's payment obligations, if any, to such Owner Participant
pursuant to the next succeeding paragraph, and the balance, if any, of such
earnings remaining after such application shall be paid in accordance with the
Lessee's written instructions.
If for any reason (i) the Operative Agreements shall not be executed
and delivered by the respective parties thereto and/or the delayed Delivery
Date shall not occur (whether by reason of a failure to meet a condition
precedent thereto set forth in Article 4 hereof or otherwise) on or before the
third Business Day after the Scheduled Delivery Date (or earlier if requested
by the Owner Participant) or, if earlier, the Cut-Off Date, or (ii) the Lessee
has notified the Owner Trustee (with a copy to the Owner Participant) prior to
2:00 p.m. (New York City time) on any date after the Scheduled Delivery Date
that it does not intend to go forward to close the transactions contemplated
hereby for such Delivery Date, the Owner Participant may cancel any funding
arrangements made to fund its Commitment on the Scheduled Delivery Date but
the Owner Participant's Commitment hereunder with respect to the Aircraft
shall not be terminated thereby until September 30, 1997, or, in the
circumstances set forth in the proviso in paragraph (c)(i) above, December
31, 1997, whereupon the Owner Participant's Commitment hereunder shall
terminate. On such third Business Day (or such earlier date) or September
30, 1997 or December 31, 1997, as the case may be, or the earliest
practicable Business Day thereafter, the Owner Trustee shall return the
amounts held by it hereunder to the Owner Participant, provided that the
Owner Trustee shall have had a reasonable time to liquidate any Permitted
Investments it has been authorized to invest in pursuant to the preceding
paragraph and to obtain the proceeds therefrom in funds of the type
originally received, and the Lessee shall pay interest on such funds to the
Owner Participant at the Debt Rate, such interest to be payable for the
period from and including such Scheduled Delivery Date to but excluding the
date such funds are returned to the Owner Participant in accordance with
the terms hereof; provided that if any such funds are returned to the Owner
Participant after 2:00 p.m. (New York City time) on any such date, such
funds shall be deemed for purposes of this paragraph to have been returned
on the next succeeding Business Day.
The Lessee shall reimburse the Owner Trustee on demand for any loss
incurred by the Owner Trustee as a result of the investment of funds by the
Owner Trustee in accordance with the terms of this Section 3.02(c). Further,
the Lessee shall indemnify the Owner Trustee and hold it harmless from and
against any cost or expense the Owner Trustee may incur as a result of any
investment of funds or transfer of funds referred to herein in accordance with
the terms hereof. The Owner Trustee shall not be liable for failure to invest
such funds except as otherwise provided herein or for any losses incurred on
such investments except for any losses arising out of its own gross negligence
or willful misconduct.
Section 3.03. Owner Participant's Instructions to Owner Trustee.
The Owner Participant agrees that the release of its Commitment in
accordance with the terms hereof shall constitute, without further act,
authorization and direction by the Owner Participant to the Owner Trustee
to take the actions specified in Sections 1.01(a) and (c) of the Trust
Agreement and confirmation that all conditions to closing set forth in
Section 4.02 hereof were either met to the satisfaction of the Owner
Participant or, if not so met, were in any event waived by it.
Section 3.04. Transaction Costs. If the transactions contemplated
by this Article 3 are consummated, as and when any portion of Transaction
Costs becomes due and payable, the Owner Participant shall, as soon as
practicable upon receipt of bills or invoices for the amounts payable make
such payments or, if the Lessee shall have already made such payment, shall
reimburse the Lessee therefor or shall, as soon as practicable, furnish the
Owner Trustee funds sufficient to, and the Owner Trustee shall, as soon as
practicable, make payment of such portion to the Person or Persons entitled to
payment upon presentation to the Owner Trustee of bills or invoices for the
amount of such payment. If such transactions are not consummated, the Lessee
shall pay or cause to be paid all the Transaction Costs; provided, however
that if the failure of such transactions to be consummated is due to (i) a
failure of the Owner Participant to obtain investment approval to proceed with
the transaction contemplated hereby, (ii) a failure to negotiate the Operative
Agreements in good faith by the Owner Participant or (iii) a wrongful act by
the Owner Participant, the Lessee shall have no obligation to pay those costs
and expenses incurred directly by the Owner Participant in connection with the
transactions contemplated by this Agreement described in Sections 10.01(a)(i)
and (xi) hereof, but the Lessee shall be obligated to pay all other
Transaction Costs.
Section 3.05. Postponement of Delivery Date. (a) If the Owner
Participant shall for any reason fail or refuse to make the full amount of its
Commitment available on the Scheduled Delivery Date in accordance with the
terms of Section 3.02 hereof, the Owner Trustee will promptly give each party
confirmed facsimile notice thereof and the Lessee shall postpone the Delivery
Date for a period of not more than five (5) Business Days, but in no event
later than September 30, 1997 or December 31, 1997, as the case may be. If
the Owner Participant shall for any reason fail or refuse to make the full
amount of its Commitment available in accordance with the terms of Section
3.02 hereof on such postponed Delivery Date, (i) if the Owner Participant
fails to make available its Commitment in breach of its obligations under
this Agreement, the Lessee shall cause the Owner Participant to assign to
another equity investor identified by the Lessee its interest in the
Lessor's Estate pursuant to Section 7.03(d) hereof and (ii) if no such
equity investor is identified, or if such equity investor fails to close
such transactions, or if the Owner Participant fails to make available its
Commitment for any other reason than as specified in clause (i) above, the
Owner Participant's interest in the Lessor's Estate shall be automatically
conveyed to the Lessee without any further action, and the parties hereto
shall take such actions as may be advisable or necessary to give effect to
such conveyance. From and after any such conveyance, the Owner
Participant's obligations hereunder and under the other Operative
Agreements shall cease. The exception to the Lessee's indemnity set forth
in clause (viii) of Section 9.01(b) hereof shall not be applicable to any
such conveyance other than a conveyance pursuant to clause (i) above. For
the avoidance of doubt, it is understood and agreed that if for any reason
other than the failure of the Manufacturer or AVSA to deliver the Aircraft,
the Lessee does not enter into the Lease Supplement with the Owner Trustee
on or prior to the Cut-Off Date, the Indenture Trustee and the Pass Through
Trustee agree that the Lessee shall purchase the Aircraft and assume all of
the obligations of the Owner Trustee under the Certificates upon
satisfaction of the requirements set forth in Section 4.02 hereof, as the
same may be modified by the provisions of Section 7.11 hereof and as
otherwise necessary to reflect a full recourse secured aircraft financing
of the Lessee. If the Lessee has identified an equity investor under the
circumstances set forth in clause (i) above, the Owner Participant agrees
to assign its interest in the Lessor's Estate as provided in said clause
(i). In case of any such conveyance pursuant to said clause (i) (but
subject to the satisfaction of the conditions precedent specified herein),
the Indenture Trustee shall release the Debt Portion or such lesser amount
as may then be held in the Collateral Account for application to the
payments contemplated in the last sentence of Section 3.02(a) hereof,
subject to the proviso to Section 3.02(a) hereof.
(b) Release of Obligations. If the Delivery Date has not occurred
on or prior to the Cut-Off Date (i) in the case of the Indenture Trustee and
the Pass Through Trustee, as a result of a failure of the Manufacturer or AVSA
to deliver the Aircraft, or (ii) in the case of the Owner Participant, for any
reason, then, in such event, the Owner Trustee shall not purchase the Aircraft
from AVSA, and the parties to the Operative Agreements shall have no further
obligations or liabilities under any of said Operative Agreements with respect
to the Aircraft, including the obligation of the Owner Participant to
participate in the payment of the Purchase Price, and such documents shall
terminate and have no further force or effect with respect to the Aircraft;
provided, however, that the Lessee shall provide, no later than the Cut-Off
Date, notice of prepayment to the Indenture Trustee and the Certificates shall
be prepaid on the 15th day following the Cut-Off Date as provided in Section
6.02(a)(vi) of the Indenture and Section 17.02(c) hereof and provided further,
that (i) the Lessee's obligation to pay any Transaction Costs as provided in
Section 3.04 hereof (to the extent such section is applicable) and to
indemnify such parties to the extent provided in such documents, shall not be
diminished or modified in any respect and (ii) the obligations of the Owner
Trustee, the Indenture Trustee and the Lessee to return funds and pay
interest, costs, expenses and other amounts thereon or in respect thereof as
provided in Section 3.02 hereof shall continue.
(c) Optional Postponement. Without limiting the provisions of
Section 3.02(c) hereof, the Scheduled Delivery Date may be postponed from time
to time (but in no event shall the Delivery Date be later than the Cut-Off
Date) for any reason, other than pursuant to Section 3.05(a) hereof, if the
Lessee gives the Owner Participant, the Indenture Trustee, the Owner Trustee
and the Pass Through Trustee confirmed facsimile notice (or telephone notice
followed by written confirmation) of such postponement and notice of the date
to which the Delivery Date has been postponed, such notice of postponement to
be received by each party no later than 11:00 a.m. (New York City time) on the
Business Day preceding the Scheduled Delivery Date.
Section 3.06. Closing. The closing with respect to the purchase and
lease of the Aircraft on the Delivery Date shall take place at the offices of
Davis Polk & Wardwell, 450 Lexington Avenue, New York, New York 10017.
ARTICLE 4
CONDITIONS PRECEDENT
Section 4.01. Conditions Precedent (Certificate Closing Date). The
obligations of the Owner Trustee, the Owner Participant, the Indenture
Trustee, the Subordination Agent and the Pass Through Trustee on behalf of
each Pass Through Trust to participate in the transactions contemplated hereby
on the Certificate Closing Date are subject to the fulfillment to the
satisfaction of such party (or waiver by such party), prior to or on the
Certificate Closing Date, of the following conditions precedent (it being
understood that receipt by the Lessee of any of the following documents shall
not be a condition precedent to the obligations of any party):
(a) Certificates. (i) On the Certificate Closing Date, there shall
have been duly issued and delivered by the Owner Trustee to the
Subordination Agent on behalf of the Pass Through Trustee for each Pass
Through Trust, against payment therefor, a Certificate, substantially in
the form set forth in Exhibit B to the Indenture, duly authenticated, dated
the Certificate Closing Date and registered in the name of the
Subordination Agent, in the principal amounts, Series and Maturity, bearing
the interest rate and the other economic terms specified in the Series
Supplements and otherwise as provided in Section 2.04 of the Indenture.
The Pass Through Certificates shall be registered under the Securities Act,
any applicable state securities laws shall have been complied with, and the
Pass Through Agreement shall have been qualified under the Trust Indenture
Act, and (ii) on the Certificate Closing Date, the "Certificates" (as
defined in each of the Related Indentures) have been duly issued and
delivered by the "Owner Trustee" (as defined in each of the Related
Indentures) to the Subordination Agent on behalf of the Pass Through
Trustee for each Pass Through Trust.
(b) Legal Investment. On the Certificate Closing Date, no fact or
condition shall exist under applicable laws or regulations, or
interpretations of any such laws or regulations by applicable regulatory
authorities, which, in the opinion of the Owner Participant or its special
counsel, the Pass Through Trustee, the Subordination Agent or the Indenture
Trustee or their special counsel, would make it illegal for the Owner
Participant, the Lessee, the Owner Trustee, the Pass Through Trustee, the
Subordination Agent or the Indenture Trustee, and no change in
circumstances shall have occurred which would otherwise make it illegal or
otherwise in contravention of guidance issued by regulatory authorities for
the Owner Participant, the Lessee, the Owner Trustee, the Pass Through
Trustee, the Subordination Agent or the Indenture Trustee, to participate
in the transactions to be consummated on the Certificate Closing Date; and
no action or proceeding shall have been instituted nor shall governmental
action before any court, governmental authority or agency be threatened
which in the opinion of counsel for the Owner Participant, the Indenture
Trustee, the Subordination Agent or the Pass Through Trustee is not
frivolous, nor shall any order have been issued or proposed to be issued by
any court, or governmental authority or agency, as of the Certificate
Closing Date, to set aside, restrain, enjoin or prevent the consummation of
any of the transactions contemplated by this Agreement or by any of the
other Operative Agreements.
(c) Underwriters. The Underwriters shall have transferred the funds
specified in Section 2.01(a) hereof and all conditions thereunder shall
have been satisfied or waived.
(d) Documents. This Agreement and the following documents shall
have been duly authorized, executed and delivered by the respective
party or parties thereto, shall each be satisfactory in form and
substance to the Lessee, the Owner Trustee, the Indenture Trustee, the
Pass Through Trustee and the Owner Participant (each acting directly or
by authorization to its special counsel) and shall each be in full force
and effect; there shall not have occurred any default thereunder, or any
event which with the lapse of time or the giving of notice or both would
be a default thereunder, and copies executed or certified as requested
by the Lessee, the Owner Trustee, the Indenture Trustee, the Pass
Through Trustee, the Subordination Agent or the Owner Participant, as
the case may be, of such documents shall have been delivered to the
Owner Participant, the Lessee, the Indenture Trustee, the Pass Through
Trustee, the Subordination Agent and the Owner Trustee (provided that
the sole chattel-paper original of each of the Lease and each Ancillary
Agreement amendatory of the Lease, shall be delivered to the Indenture
Trustee):
(i) the Lease;
(ii) the Indenture;
(iii) in the case of the Owner Participant only, the Tax Indemnity
Agreement;
(iv) the Purchase Agreement and the Consent and Guaranty;
(v) the Purchase Agreement Assignment and the French Pledge
Agreement with respect thereto;
(vi) the GTA;
(vii) the Trust Agreement;
(viii) the Ancillary Agreement I;
(ix) the Ancillary Agreement II;
(x) the Owner Participant Guaranty;
(xi) the Intercreditor Agreement; and
(xii) the Liquidity Facility for each of the Pass Through Trusts for
the Series A Certificates and the Series B Certificates.
(e) Approvals. All approvals and consents of any trustees or
holders of any indebtedness or obligations of the Lessee, which in the
opinion of the Owner Participant, the Pass Through Trustee or the Indenture
Trustee are required in connection with any transaction contemplated by
this Agreement, shall have been duly obtained.
(f) Financing Statements. Uniform Commercial Code ("UCC") financing
statements covering all the security interests (and other interests)
intended to be created by or pursuant to the Granting Clause of the
Indenture shall have been executed and delivered by the Owner Trustee, as
debtor, and by the Indenture Trustee, as secured party, for and on behalf
of the Holders, and such financing statements shall have been duly filed or
duly submitted for filing in the State of Connecticut, and all other
actions shall have been taken which, in the opinion of the Owner
Participant, the Pass Through Trustee and the Underwriters, are necessary
to perfect and protect such security interests and other interests.
(g) Corporate Documents. Except when such Person is the delivering
party, the Owner Participant, the Owner Trustee, the Pass Through Trustee,
the Lessee and the Indenture Trustee (acting directly or by authorization
to its counsel) shall have received the following, in each case in form and
substance satisfactory to it:
(i) a copy of the certificate of incorporation and by-laws of the
Lessee, certified by the Secretary or an Assistant Secretary of the
Lessee as of the Certificate Closing Date, and a copy of the minutes
of the regular meeting of the board of directors of the Lessee,
certified as such as of the Certificate Closing Date by such
Secretary or Assistant Secretary, duly authorizing the lease by the
Lessee of the Aircraft under the Lease and the execution, delivery
and performance by the Lessee of this Agreement, the Lease, the Tax
Indemnity Agreement, the Pass Through Agreement, the Series
Supplements, the other Operative Agreements to which the Lessee is
or is to be a party and each other document to be executed and
delivered by the Lessee in connection with the transactions
contemplated hereby;
(ii) a copy of the articles of incorporation and bylaws of the
Owner Participant and the Owner Participant Guarantor, certified by
the Secretary or an Assistant Secretary of the Owner Participant or
the Owner Participant Guarantor as of the Certificate Closing Date,
and a copy of the resolutions of the board of directors of the Owner
Participant, certified as such as of the Certificate Closing Date by
such Secretary or an Assistant Secretary, authorizing the execution
and delivery by the Owner Participant of this Agreement, the Tax
Indemnity Agreement, the Trust Agreement and the other Operative
Agreements to which the Owner Participant is or is to be a party and
each other document to be executed and delivered by the Owner
Participant in connection with the transactions contemplated hereby,
and a copy of the resolutions of the board of directors of the Owner
Participant Guarantor, certified as such as of the Certificate
Closing Date by the Secretary or an Assistant Secretary, authorizing
the execution and delivery by the Owner Participant Guarantor of the
Owner Participant Guaranty and the other Operative Agreements to
which such Owner Participant Guarantor is or is to be a party and
each other document to be executed and delivered by the Owner
Participant Guarantor in connection with the transactions
contemplated hereby;
(iii) a copy of the articles of association and by-laws and other
instruments of the Owner Trustee, certified by the Secretary or an
Assistant Secretary of the Owner Trustee as of the Certificate
Closing Date (or other like instruments satisfactory to the Lessee
and the Owner Participant) and evidence authorizing the execution,
delivery and performance by the Owner Trustee in its individual
capacity or as Owner Trustee, as the case may be, of this Agreement,
the Trust Agreement and each of the other Operative Agreements to
which it is or is to be a party, whether in its individual capacity
or as Owner Trustee, and each other document to be executed and
delivered by the Owner Trustee in connection with the transactions
contemplated hereby;
(iv) a copy of the articles of association and by-laws and
other instruments of the Indenture Trustee, certified by the
Secretary or an Assistant Secretary of the Indenture Trustee as of
the Certificate Closing Date (or other like instruments
satisfactory to the Lessee and the Owner Participant) and evidence
authorizing the execution, delivery and performance by the
Indenture Trustee of each of this Agreement, the Indenture and
each of the other Operative Agreements to which it is or is to be
a party, and each other document to be executed and delivered by
the Indenture Trustee in connection with the transactions
contemplated hereby;
(v) a copy of the articles of association and by-laws and other
instruments of the Pass Through Trustee, certified by the Secretary
or an Assistant Secretary of the Pass Through Trustee as of the
Certificate Closing Date (or other like instruments satisfactory to
the Lessee and the Owner Participant) and evidence authorizing the
execution, delivery and performance by the Pass Through Trustee of
this Agreement, the Pass Through Agreement, the Series Supplements
and each of the other Operative Agreements to which it is or is to be
a party, and each other document to be executed and delivered by the
Pass Through Trustee in connection with the transactions contemplated
hereby;
(vi) a copy of the articles of association and by-laws and other
instruments of the Subordination Agent, certified by the Secretary or
an Assistant Secretary of the Subordination Agent as of the
Certificate Closing Date (or other like instruments satisfactory to
the Lessee and the Owner Participant) and evidence authorizing the
execution, delivery and performance by the Subordination Agent of
this Agreement, the Intercreditor Agreement and each of the other
Operative Agreements to which it is or is to be a party, and each
other document to be executed and delivered by the Subordination
Agent in connection with the transactions contemplated hereby; and
(vii) such other documents, evidences, materials, and information
with respect to the Lessee, the Owner Trustee, the Indenture Trustee,
the Pass Through Trustee and the Owner Participant as the Indenture
Trustee, the Pass Through Trustee or the Owner Participant may
reasonably request in order to establish the consummation of the
transactions contemplated by this Agreement.
(h) Officer's Certificate of Lessee. On the Certificate Closing
Date, the following statements shall be true, and the Owner Participant,
the Owner Trustee, the Pass Through Trustee and the Indenture Trustee shall
have received a certificate signed by the Vice President and Treasurer or
any other duly authorized officer of the Lessee, dated the Certificate
Closing Date, stating that:
(i) the representations and warranties of the Lessee contained in
the Operative Agreements to which it is a party (excluding the Tax
Indemnity Agreement) and in any certificate delivered pursuant hereto
or thereto are true and correct on and as of the Certificate Closing
Date as though made on and as of such date (except to the extent that
such representations and warranties relate solely to an earlier date,
in which case such certificate shall state that such representations
and warranties were true and correct on and as of such earlier date);
(ii) except for the matters described (i) under "Legal
Proceedings" in the Lessee's Annual Report on Form 10-K for the
fiscal year ended May 31, 1996 (as updated by Note 7 to the financial
statements included in the Lessee's Quarterly Reports on Form 10-Q
for the fiscal quarters ended August 31, 1996, November 30, 1996 and
February 28, 1997) and (ii) in the Lessee's Current Reports on Form
8-K dated June 7, 1996, August 16, 1996 and March 4, 1997, as to
which such officer will make no certification concerning the
liability of the Lessee (if any), or the effect of any adverse
determination upon the consolidated financial condition, business or
operations of the Lessee, no material adverse change has occurred in
the financial condition, business or operations of the Lessee from
that shown in the audited financial statements of the Lessee as of
May 31, 1996 and nothing has occurred which will, in the judgment of
such officer, materially adversely affect the ability of the Lessee
to carry on its business or to perform its obligations under this
Agreement and each other Operative Agreement to which it is or is to
be a party; and
(iii) no event has occurred and is continuing, or would result
from the purchase, sale, mortgage, or lease of the Aircraft, which
constitutes an Event of Loss (or event which with the passage of time
would become an Event of Loss) with respect to the Airframe or any
Engine, or a Default or an Event of Default under the Lease.
(i) Officer's Certificate of Owner Participant and Owner Participant
Guarantor. On the Certificate Closing Date, the following statements shall
be true, and the Lessee, the Pass Through Trustee, the Owner Trustee and
the Indenture Trustee shall have received a certificate from (i) the Owner
Participant, signed by a duly authorized officer of the Owner Participant
dated the Certificate Closing Date, stating that:
(i) the representations and warranties of the Owner Participant
contained in this Agreement, the Trust Agreement and any other
Operative Agreement to which it is a party (excluding the Tax
Indemnity Agreement) and in any certificate delivered pursuant hereto
or thereto, are true and correct on and as of the Certificate Closing
Date as though made on and as of such date (except to the extent that
such representations and warranties relate solely to an earlier date,
in which case such certificate shall state that such representations
and warranties were true and correct on and as of such earlier date);
(ii) no Lessor's Liens attributable to the Owner Participant
exist; and
(iii) no event has occurred and is continuing which constitutes
or, with notice or lapse of time or both would constitute, due to any
action or omission on the part of the Owner Participant, an Indenture
Event of Default other than an Indenture Event of Default
attributable to a Lease Event of Default.
and (ii) from the Owner Participant Guarantor, signed by a duly authorized
officer of such Owner Participant Guarantor dated the Certificate Closing
Date, stating that the representations and warranties of such Owner
Participant Guarantor contained in its Owner Participant Guaranty and in
any certificate delivered at the closing pursuant thereto are true and
correct on and as of the Certificate Closing Date as though made on and as
of such date (except to the extent that such representations and warranties
relate solely to an earlier date, in which case such certificate shall
state that such representations and warranties were true and correct on and
as of such earlier date).
(j) Other Officer's Certificates. On the Certificate Closing Date,
the following statements shall be true, and the Lessee, the Pass Through
Trustee, the Owner Trustee, the Subordination Agent and the Indenture
Trustee shall have received a certificate from each of SSB and the Owner
Trustee (in the case of the Lessee, the Pass Through Trustee, the
Subordination Agent and the Indenture Trustee), FSB and the Indenture
Trustee (in the case of the Lessee, the Pass Through Trustee, the
Subordination Agent and the Owner Trustee), FSB and the Pass Through
Trustee (in the case of the Lessee, the Indenture Trustee, the
Subordination Agent and the Owner Trustee) and FSB and the Subordination
Agent (in the case of the Lessee, the Pass Through Trustee, the Indenture
Trustee and the Owner Trustee), signed by a duly authorized officer of SSB
and FSB, respectively, dated the Certificate Closing Date, stating with
respect to SSB and the Owner Trustee, with respect to FSB and the Indenture
Trustee, with respect to FSB and the Pass Through Trustee or with respect
to FSB and the Subordination Agent, as the case may be, that:
(i) the representations and warranties of SSB in its individual
capacity and as Owner Trustee, of FSB in its individual capacity and
as Indenture Trustee, of FSB in its individual capacity and as Pass
Through Trustee or of FSB in its individual capacity and as
Subordination Agent contained in this Agreement, the Lease, the Trust
Agreement and the Indenture and in any certificate delivered pursuant
hereto or thereto are true and correct on and as of the Certificate
Closing Date as though made on and as of such date (except to the
extent that such representations and warranties relate solely to
an earlier date, in which case such certificate shall state that
such representations and warranties were true and correct on and
as of such earlier date);
(ii) to the best of its knowledge, no event has occurred and is
continuing, which constitutes or which, but for the lapse of time or
the giving of notice, or both, would constitute, due to any action or
omission on the part of SSB in its individual capacity or as Owner
Trustee, of FSB in its individual capacity or as Indenture Trustee,
of FSB in its individual capacity or as Pass Through Trustee, an
Event of Default or an Indenture Event of Default or of FSB in its
individual capacity or as Subordination Agent, an Event of Default or
an Indenture Event of Default; and
(iii) there are no Lessor's Liens attributable to the Owner
Trustee or SSB and no Indenture Trustee's Liens.
(k) Legal Opinions. The Owner Participant, the Underwriters, the
Lessee, the Owner Trustee, the Pass Through Trustee and the Indenture
Trustee (acting directly or by authorization to its special counsel) shall
have received from the following counsel their respective legal opinions in
each case satisfactory to the Owner Participant, the Underwriters, the
Lessee, the Owner Trustee, the Pass Through Trustee or the Indenture
Trustee, as the case may be, as to scope and substance (and covering such
other matters as the recipient may reasonably request) and dated the
Certificate Closing Date:
(i) George W. Hearn, Vice President - Law of the Lessee, in the
form of Exhibit A(1)(a)(i) hereto and addressed to the Underwriters,
the Owner Participant, the Owner Trustee, the Pass Through Trustee,
each Liquidity Provider and the Indenture Trustee;
(ii) Simpson Thacher & Bartlett, special counsel for the Owner
Participant and the Owner Participant Guarantor, in the form of
Exhibit A(2)(a) hereto and the General Counsel's Office of the Owner
Participant and the Owner Participant Guarantor, in the form of
Exhibit A(2)(b) hereto, each addressed to the Underwriters, the Owner
Participant, the Indenture Trustee, the Owner Trustee, the Pass
Through Trustee, each Liquidity Provider and the Lessee;
(iii) Ray, Quinney & Nebeker, special counsel for the Indenture
Trustee, in the form of Exhibit A(3) hereto and addressed to the
Underwriters, the Owner Participant, the Indenture Trustee, the Owner
Trustee, the Pass Through Trustee, each Liquidity Provider and the
Lessee;
(iv) Bingham, Dana & Gould LLP, special counsel for the Owner
Trustee, in the form of Exhibit A(4)(a)(i) hereto and addressed to
the Underwriters, the Owner Participant, the Indenture Trustee, the
Owner Trustee, the Pass Through Trustee, each Liquidity Provider and
the Lessee;
(v) Davis Polk & Wardwell, special counsel for the Lessee, in the
form of Exhibit A(1)(b)(i) hereto and addressed to the Underwriters,
the Owner Participant, the Indenture Trustee, the Owner Trustee, the
Pass Through Trustee, each Liquidity Provider and the Lessee;
(vi) Ray, Quinney & Nebeker, special counsel for the Pass Through
Trustee and the Subordination Agent, in the form of Exhibit A(5)
hereto and addressed to the Underwriters, the Owner Participant, the
Indenture Trustee, the Owner Trustee, the Pass Through Trustee, each
Liquidity Provider and the Lessee; and
(vii) Johan Tyteca, Esq., manager of the Legal Department of
Kredietbank N.V., in the form of Exhibit A(6)(a) hereto, and Milbank,
Tweed, Hadley & McCloy, special counsel for the Liquidity Providers,
in the form of Exhibit A(6)(b) hereto, each addressed to the Pass
Through Trustee, the Subordination Agent, each Liquidity Provider and
the Lessee.
(l) No Indenture Event of Default. No Indenture Event of Default or
Indenture Default has occurred and is continuing.
(m) Event of Default; Default; Event of Loss. No Default or Event
of Default under the Lease or Event of Loss or event, which with the
passage of time or if continued unremedied or unaltered would constitute an
Event of Loss, shall have occurred or be in existence.
(n) Other Agreements. The Lessee and the Pass Through Trustee
shall have entered into the Pass Through Agreement and the Series
Supplements, all conditions to the effectiveness of each thereof shall
have been satisfied or waived, and the Pass Through Certificates shall
have been issued pursuant to the Series Supplements. The Lessee and the
Underwriters shall have entered into the Underwriting Agreement, all
conditions to the effectiveness thereof shall have been satisfied or
waived, and the Pass Through Certificates shall have been delivered
pursuant to the Underwriting Agreement. All conditions to the
effectiveness of each Liquidity Facility shall have been satisfied or
waived.
(o) Payment of Taxes. (A) All taxes, fees, charges, assessments,
costs and other expenses then due and payable in connection with the
execution, delivery, recording and filing of all financing statements
referred to in subparagraph (f) of this Section 4.01, or in connection with
the issuance of the Certificates shall have been duly paid or caused to be
paid in full; and (B) all sales or use taxes and duties related to the
consummation of the transactions contemplated by the Operative Agreements
on the Certificate Closing Date which are then due and payable shall have
been duly paid in full.
(p) Governmental Compliance. All appropriate action required to
have been taken by the FAA, the SEC, or any governmental or political
agency, subdivision or instrumentality of the United States, prior to the
Certificate Closing Date in connection with the transactions contemplated
by this Agreement shall have been taken, and all orders, permits, waivers,
authorizations, exemptions and approvals (collectively "permits") of such
entities required to be in effect on the Certificate Closing Date in
connection with the transactions contemplated by this Agreement shall have
been issued, and all such permits shall be in full force and effect on the
Certificate Closing Date.
(q) Section 131.3 of the New York State Banking Law Filing. SSB
shall have delivered evidence of its filing made with the New York
Superintendent of Banking pursuant to Section 131.3 of the New York State
Banking Law.
Section 4.02. Conditions Precedent (Delivery Date). Subject to the
last paragraph of this Section 4.02, the obligations of the Owner Trustee, the
Owner Participant, the Indenture Trustee, the Subordination Agent and the Pass
Through Trustee on behalf of each Pass Through Trust to participate in the
transactions contemplated hereby on the Delivery Date are subject to the
fulfillment to the satisfaction of each party (or waiver by such party), prior
to or on the Delivery Date, of the following conditions precedent (it being
understood that receipt by the Lessee of any of the following documents shall
not be a condition precedent to the obligation of any party):
(a) Notice, Etc. Each party hereto shall have received a Delivery
Notice pursuant to Section 3.01 hereof at least three (3) Business Days
prior to the Delivery Date.
(b) Legal Investment. No change shall have occurred after the
Certificate Closing Date and on or prior to the Delivery Date in applicable
laws or regulations, or interpretations of any such laws or regulations by
applicable regulatory authorities, which, in the opinion of the Owner
Participant or its special counsel, the Pass Through Trustee, the
Subordination Agent or the Indenture Trustee or their special counsel,
would make it illegal for the Owner Participant, the Lessee, the Owner
Trustee, the Pass Through Trustee, the Subordination Agent or the Indenture
Trustee, and no change in circumstances shall have occurred which would
otherwise make it illegal or otherwise in contravention of guidance issued
by regulatory authorities for the Owner Participant, the Lessee, the Owner
Trustee, the Pass Through Trustee, the Subordination Agent or the Indenture
Trustee, to participate in the transactions to be consummated on the
Delivery Date; and no action or proceeding shall have been instituted nor
shall governmental action before any court, governmental authority or
agency be threatened which in the opinion of counsel for the Owner
Participant, the Indenture Trustee, the Subordination Agent or the Pass
Through Trustee is not frivolous, nor shall any order have been issued or
proposed to be issued by any court, or governmental authority or agency, as
of the Delivery Date, to set aside, restrain, enjoin or prevent the
consummation of any of the transactions contemplated by this Agreement or
by any of the other Operative Agreements.
(c) Documents. The documents referred to in Section 4.01(d) hereof
shall each be in full force and effect and the following documents shall
have been duly authorized, executed and delivered by the respective party
or parties thereto, shall each be satisfactory in form and substance to the
Lessee, the Owner Trustee, the Indenture Trustee, the Pass Through Trustee,
the Subordination Agent and the Owner Participant (each acting directly or
by authorization to its special counsel) and shall each be in full force
and effect; there shall not have occurred any default thereunder, or any
event which with the lapse of time or the giving of notice or both would be
a default thereunder, and copies executed or certified as requested by the
Lessee, the Owner Trustee, the Indenture Trustee, the Pass Through Trustee
or the Owner Participant, as the case may be, of such documents shall have
been delivered to the Owner Participant, the Lessee, the Indenture Trustee,
the Pass Through Trustee and the Owner Trustee (provided that the sole
chattel-paper original of the Lease Supplement shall be delivered to the
Indenture Trustee):
(i) the Lease Supplement covering the Aircraft, dated the Delivery
Date;
(ii) an Indenture and Security Agreement Supplement covering the
Aircraft, dated the Delivery Date;
(iii) the Invoice;
(iv) AVSA's FAA Bill of Sale, AVSA's Warranty Bill of Sale and the
Airbus Guaranty;
(v) the Consent and Agreement and the AVSA Consent and Agreement;
and
(vi) the Engine Warranty Assignment and the Engine Consent.
(d) Legal Opinions. The Owner Participant, the Underwriters, the
Lessee, the Owner Trustee, the Pass Through Trustee and the Indenture
Trustee (acting directly or by authorization to its special counsel) shall
have received from the following counsel their respective legal opinions in
each case satisfactory to the Owner Participant, the Underwriters, the
Lessee, the Owner Trustee, the Pass Through Trustee or the Indenture
Trustee, as the case may be, as to scope and substance (and covering such
other matters as the recipient may reasonably request) and dated the
Delivery Date:
(i) George W. Hearn, Vice President - Law of the Lessee, in the
form of Exhibit A(1)(a)(ii) hereto and addressed to the Underwriters,
the Owner Participant, the Owner Trustee, the Pass Through Trustee,
each Liquidity Provider and the Indenture Trustee;
(ii) Davis Polk & Wardwell, special counsel for the Lessee, in the
form of Exhibit A(1)(b)(ii) hereto and addressed to the Underwriters,
the Owner Participant, the Indenture Trustee, the Owner Trustee, the
Pass Through Trustee, each Liquidity Provider and the Lessee;
(iii) Bingham, Dana & Gould LLP, special counsel for the Owner
Trustee, in the form of Exhibit A(4)(a)(ii) hereto and addressed to
the Underwriters, the Owner Participant, the Indenture Trustee, the
Owner Trustee, the Pass Through Trustee, each Liquidity Provider and
the Lessee;
(iv) counsel for the Engine Manufacturer, in the form of Exhibit
A(7) hereto and addressed to the Underwriters, the Owner Participant,
the Indenture Trustee, the Owner Trustee, the Pass Through Trustee,
each Liquidity Provider and the Lessee;
(v) Clifford Chance, special counsel for AVSA and the
Manufacturer, in the form of Exhibit A(8) hereto and addressed to the
Underwriters, the Owner Participant, the Indenture Trustee, the Owner
Trustee, the Pass Through Trustee, each Liquidity Provider and the
Lessee;
(vi) Daugherty, Fowler & Peregrin, special aviation counsel, in
the form of Exhibit A(9) hereto and addressed to the Underwriters,
the Owner Participant, the Indenture Trustee, the Owner Trustee, the
Pass Through Trustee, each Liquidity Provider and the Lessee; and
(vii) in the case of the Owner Participant only, Simpson
Thacher & Bartlett, tax counsel to the Owner Participant,
addressed to the Owner Participant, with respect to certain tax
matters.
(e) Title, Airworthiness and Registration. On the Delivery Date,
the following statements shall be true, and the Owner Participant, the
Indenture Trustee, the Pass Through Trustee and the Owner Trustee shall
have received evidence from the Lessee reasonably satisfactory to the
Owner Participant, the Indenture Trustee, the Pass Through Trustee and
the Owner Trustee to the effect that:
(i) the Owner Trustee has good and marketable title (subject to
filing and recording of AVSA's FAA Bill of Sale with the Aeronautics
Authority) to the Aircraft, free and clear of Liens, except the
rights of the Owner Trustee and the Lessee under the Lease and the
Lease Supplement covering the Aircraft, the rights of the Indenture
Trustee under the Indenture and the beneficial interest of the Owner
Participant created by the Trust Agreement and the interest of the
Certificate Holders created by the Indenture and the Indenture and
Security Agreement Supplement covering the Aircraft, which evidence
shall include AVSA's FAA Bill of Sale, AVSA's Warranty Bill of Sale
and the Airbus Guaranty;
(ii) the Aircraft has been duly certificated by the Aeronautics
Authority as to type and airworthiness in accordance with the terms
of the Operative Agreements;
(iii) AVSA's FAA Bill of Sale, the Lease and Lease Supplement
covering the Aircraft, the Indenture and the Indenture and Security
Agreement Supplement covering the Aircraft and the Trust Agreement
shall have been duly filed for recordation (or shall be in the
process of being so duly filed for recordation) with the Aeronautics
Authority pursuant to the Transportation Code; and
(iv) application to the Aeronautics Authority for registration of
the Aircraft in the name of the Owner Trustee shall have been duly
made and the Lessee shall have temporary or permanent authority to
operate the Aircraft.
(f) Financing Statements. A UCC notice filing describing the Lease
as a lease shall have been executed and delivered by the Owner Trustee, as
lessor, and the Lessee, as lessee (which filing shall name the Indenture
Trustee as assignee of the Owner Trustee) and shall have been duly filed in
the State of Tennessee.
(g) Payments. The Owner Participant shall have made available its
Commitment to the Owner Trustee and the other payments contemplated by
Section 3.02 hereof shall have been made.
(h) Report of Aircraft Expert. The Owner Participant shall have
received a report prepared by BK Associates, Inc. addressed to the Owner
Participant (with an abbreviated report to the Lessee) which report shall
be in form and substance satisfactory to the Owner Participant to the
effect, among other things, that on the Delivery Date:
(i) (A) the estimated fair market value of the Aircraft net of
any cost to the Owner Participant or the Owner Trustee of return at
the end of the Basic Term and any Fixed Renewal Term (determined
without including in such value any increase or decrease for
inflation or deflation during the Term) is equal to or greater than
20% of the Purchase Price for the Aircraft and (B) at least 20% of
the useful economic life of the Aircraft will be remaining at the end
of the Basic Term and any Fixed Renewal Term;
(ii) the estimated useful life of the Aircraft is at least 133% of
the Basic Term and any Fixed Renewal Term;
(iii) the Purchase Price of the Aircraft is no greater than the
fair market value of the Aircraft on the Delivery Date;
(iv) on the Delivery Date, the Aircraft will not require any
modifications, improvements or additions in order to be rendered
complete for its intended purpose by the Lessee;
(v) the amount payable by the Lessee upon the exercise of its
purchase option pursuant to Section 4.02(a)(F) of the Lease equals or
exceeds the currently estimated Fair Market Value of the Aircraft on
such date (taking into account inflation or deflation to such date);
and
(vi) the Aircraft is not limited use property.
(i) Insurance. Each of the Indenture Trustee, the Pass Through
Trustee, the Owner Trustee and the Owner Participant shall have received
such evidence as it deems appropriate, including, without limitation, an
independent insurance broker's report, together with certificates of
insurance from such broker, in form and substance satisfactory to the
Indenture Trustee, the Pass Through Trustee, the Owner Trustee and the
Owner Participant to establish that the insurance required by Article 13 of
the Lease is in effect.
(j) Payment of Taxes. (A) All taxes, fees, charges, assessments,
costs and other expenses then due and payable in connection with the
execution, delivery, recording and filing of all financing statements and
the documents and instruments referred to in subparagraphs (e) and (f) of
this Section 4.02, or in connection with the purchase of the Aircraft by
the Owner Trustee and the making by the Owner Participant of its equity
investment shall have been duly paid or caused to be paid in full; and (B)
all sales or use taxes and duties related to the consummation of the
transactions contemplated by the Operative Agreements on the Delivery Date
which are then due and payable shall have been duly paid in full.
(k) No Indenture Event of Default. No Indenture Event of Default or
Indenture Default has occurred and is continuing.
(l) Event of Default; Default; Event of Loss. No Default or Event
of Default under the Lease (assuming, for this purpose, that the provisions
of Article 16 of the Lease had become operative on the Certificate Closing
Date and not the Delivery Date) or Event of Loss or event, which with the
passage of time or if continued unremedied or unaltered would constitute an
Event of Loss, shall have occurred or be in existence.
(m) Governmental Compliance. All appropriate action required to
have been taken by the FAA, the SEC, or any governmental or political
agency, subdivision or instrumentality of the United States, prior to the
Delivery Date in connection with the transactions contemplated by this
Agreement shall have been taken, and all orders, permits, waivers,
authorizations, exemptions and approvals (collectively "permits") of such
entities required to be in effect on the Delivery Date in connection with
the transactions contemplated by this Agreement shall have been issued, and
all such permits shall be in full force and effect on the Delivery Date.
(n) Officer's Certificate of Lessee. On the Delivery Date, the
following statements shall be true, and the Owner Participant, the Owner
Trustee, the Pass Through Trustee and the Indenture Trustee shall have
received a certificate signed by the Vice President and Treasurer or any
other duly authorized officer of the Lessee, dated the Delivery Date,
stating that:
(i) the representations and warranties of the Lessee contained in
the Operative Agreements to which it is a party (excluding the Tax
Indemnity Agreement) and in any certificate delivered pursuant hereto
or thereto are true and correct on and as of the Delivery Date as
though made on and as of such date (except to the extent that such
representations and warranties relate solely to an earlier date, in
which case such certificate shall state that such representations and
warranties were true and correct on and as of such earlier date);
(ii) except for the matters described (i) under "Legal
Proceedings" in the Lessee's Annual Report on Form 10-K for the
fiscal year ended May 31, 1996 (as updated by Note 7 to the financial
statements included in the Lessee's Quarterly Reports on Form 10-Q
for the fiscal quarters ended August 31, 1996, November 30, 1996 and
February 28, 1997) and (ii) in the Lessee's Current Reports on Form
8-K dated June 7, 1996, August 16, 1996 and March 4, 1997, as to
which such officer will make no certification concerning the
liability of the Lessee (if any), or the effect of any adverse
determination upon the consolidated financial condition, business or
operations of the Lessee, no material adverse change has occurred in
the financial condition, business or operations of the Lessee from
that shown in the audited financial statements of the Lessee as of
May 31, 1996 and nothing has occurred which will, in the judgment of
such officer, materially adversely affect the ability of the Lessee
to carry on its business or to perform its obligations under this
Agreement and each other Operative Agreement to which it is or is to
be a party; and
(iii) no event has occurred and is continuing, or would result
from the purchase, sale, mortgage, or lease of the Aircraft, which
constitutes an Event of Loss (or event which with the passage of time
would become an Event of Loss) with respect to the Airframe or any
Engine, or a Default or an Event of Default under the Lease.
(o) Officer's Certificate of Owner Participant and Owner Participant
Guarantor. On the Delivery Date, the following statements shall be true,
and the Lessee, the Pass Through Trustee, the Owner Trustee and the
Indenture Trustee shall have received a certificate from the Owner
Participant, signed by a duly authorized officer of (i) the Owner
Participant dated the Delivery Date, stating that:
(i) the representations and warranties of the Owner Participant
contained in this Agreement, the Trust Agreement and any other
Operative Agreement (excluding the Tax Indemnity Agreement) to which
it is a party and in any certificate delivered pursuant hereto or
thereto, are true and correct on and as of the Delivery Date as
though made on and as of such date (except to the extent that such
representations and warranties relate solely to an earlier date, in
which case such certificate shall state that such representations and
warranties were true and correct on and as of such earlier date);
(ii) no Lessor's Liens attributable to the Owner Participant
exist; and
(iii) no event has occurred and is continuing which constitutes
or, with notice or lapse of time or both would constitute, due to any
action or omission on the part of the Owner Participant, an Indenture
Event of Default other than an Indenture Event of Default
attributable to a Lease Event of Default.
and (ii) from the Owner Participant Guarantor, signed by a duly authorized
officer of such Owner Participant Guarantor dated the Certificate Closing
Date, stating that the representations and warranties of such Owner
Participant Guarantor contained in its Owner Participant Guaranty and in
any certificate delivered at the closing pursuant thereto are true and
correct on and as of the Certificate Closing Date as though made on and as
of such date (except to the extent that such representations and warranties
relate solely to an earlier date, in which case such certificate shall
state that such representations and warranties were true and correct on and
as of such earlier date).
(p) Other Officer's Certificates. On the Delivery Date, the
following statements shall be true, and the Owner Participant, the Lessee,
the Pass Through Trustee, the Owner Trustee, the Subordination Agent and
the Indenture Trustee shall have received a certificate from each of SSB
and the Owner Trustee (in the case of the Lessee, the Pass Through Trustee,
the Owner Participant, the Subordination Agent and the Indenture Trustee),
FSB and the Indenture Trustee (in the case of the Lessee, the Pass Through
Trustee, the Owner Participant, the Subordination Agent and the Owner
Trustee), FSB and the Pass Through Trustee (in the case of the Lessee, the
Indenture Trustee, the Owner Participant, the Subordination Agent and the
Owner Trustee) and FSB and the Subordination Agent (in the case of the
Lessee, the Indenture Trustee, the Owner Participant, the Pass Through
Trustee and the Owner Trustee) signed by a duly authorized officer of SSB
and FSB, respectively, dated the Delivery Date, stating with respect to SSB
and the Owner Trustee, with respect to FSB and the Indenture Trustee, with
respect to FSB and the Pass Through Trustee or with respect to FSB and the
Subordination Agent, as the case may be, that:
(i) the representations and warranties of SSB in its individual
capacity and as Owner Trustee, of FSB in its individual capacity and
as Indenture Trustee, of FSB in its individual capacity and as Pass
Through Trustee or of FSB in its individual capacity and as
Subordination Agent contained in this Agreement, the Lease, the Trust
Agreement and the Indenture and in any certificate delivered pursuant
hereto or thereto are true and correct on and as of the Delivery Date
as though made on and as of such date (except to the extent that such
representations and warranties relate solely to an earlier date, in
which case such certificate shall state that such representations and
warranties were true and correct on and as of such earlier date);
(ii) to the best of its knowledge, no event has occurred and is
continuing, which constitutes or which, but for the lapse of time or
the giving of notice, or both, would constitute, due to any action or
omission on the part of SSB in its individual capacity or as Owner
Trustee, of FSB in its individual capacity or as Indenture Trustee,
of FSB in its individual capacity or as Pass Through Trustee, an
Event of Default or an Indenture Event of Default or of FSB in its
individual capacity or as Subordination Agent, an Event of Default or
an Indenture Event of Default; and
(iii) there are no Lessor's Liens attributable to the Owner
Trustee or SSB and no Indenture Trustee's Liens affecting the Trust
Indenture Estate or the Lessor's Estate or any part thereof.
(q) Release of Debt Portion. The Indenture Trustee shall have
released the Debt Portion from (or such lesser amount as may then be held
in) the Collateral Account or if the proviso to Section 3.02(a) is
applicable, then the Lessee shall have made the payment required to be made
to AVSA pursuant to such proviso.
Notwithstanding anything else to the contrary in this Section 4.02, it shall
not be a condition precedent to the obligations of the Indenture Trustee, the
Pass Through Trustee or the Subordination Agent that the conditions in Section
4.02(n) and (o) be satisfied if the Lessee certifies that the failure to
fulfill such condition precedent is not reasonably likely to materially
adversely affect the holders of Pass Through Certificates and, in the event of
such failure, there has been delivered to the Indenture Trustee written
confirmation from both Moody's and S&P of the rating on any class of Pass
Through Certificates.
Section 4.03. Opinion of Special Aviation Counsel Upon Registration.
Promptly upon the registration of the Aircraft and the filing and, where
appropriate, recordation pursuant to the Transportation Code, of AVSA's FAA
Bill of Sale, the Trust Agreement, the Lease (with the Lease Supplement
covering the Aircraft, the Indenture and the Indenture and Security Agreement
Supplement covering the Aircraft attached as exhibits) and the Indenture (with
the Indenture and Security Agreement Supplement covering the Aircraft attached
as an exhibit), the Lessee shall cause Special Aviation Counsel to deliver to
the Owner Participant, the Lessee, the Owner Trustee, the Pass Through Trustee
and the Indenture Trustee an opinion as to (i) the due registration of the
Aircraft in the name of the Owner Trustee, (ii) the due recording pursuant to
the Transportation Code of AVSA's FAA Bill of Sale, the Trust Agreement, the
Lease (with such Lease Supplement, the Indenture and such Indenture and
Security Agreement Supplement attached as exhibits), and the Indenture (with
such Indenture and Security Agreement Supplement attached as an exhibit), and
(iii), subject to customary qualifications, the lack of any intervening
documents with respect to the Aircraft.
ARTICLE 5
CONDITIONS PRECEDENT TO LESSEE'S OBLIGATIONS
Section 5.01. Conditions Precedent to Lessee's Obligations. The
Lessee's obligation to participate in the transactions contemplated hereby on
the Certificate Closing Date is subject to the conditions that, prior to or on
the Certificate Closing Date, the Lessee shall have received the certificates
and other documents which are referred to in, or the opinions to be addressed
to it under, as the case may be, paragraphs (d), (g)(ii)-(v), (i), (j),
(k)(ii)-(vi) of Section 4.01 hereof and the Underwriters shall have made
available the amounts required to be paid by them pursuant to Section 2.01
hereof, and the Lessee's obligation to participate in the transactions
contemplated hereby on the Delivery Date, is subject to the conditions that,
on or prior to the Delivery Date, the Lessee shall have received the documents
which are referred to in, or the opinions to be addressed to it under, as the
case may be, paragraphs (c) and (d)(ii)-(v) of Section 4.02 hereof and the
Indenture Trustee shall have released the Debt Portion from (or such lesser
amount as may then be held in) the Collateral Account.
ARTICLE 6
LESSEE'S REPRESENTATIONS, WARRANTIES AND COVENANTS
Section 6.01. Lessee's Representations and Warranties. The Lessee
represents and warrants to the Owner Participant, the Owner Trustee (in its
individual capacity and as Owner Trustee), the Pass Through Trustee (in its
individual capacity and as Pass Through Trustee), each Liquidity Provider and
the Indenture Trustee (in its individual capacity and as Indenture Trustee)
that, on the date hereof and as of the Certificate Closing Date and the
Delivery Date (unless any such representation is specifically made as of one
date):
(a) the Lessee is a corporation duly organized and validly existing
and is in good standing under the laws of the State of Delaware with its
principal place of business and chief executive office (as such terms are
used in Article 9 of the Uniform Commercial Code) in Memphis, Tennessee,
and is duly qualified to do business as a foreign corporation and is in
good standing in all jurisdictions in which it has intrastate routes, or
offices or major overhaul facilities or in which other activities of the
Lessee require such qualification;
(b) the Lessee has full power, authority and legal right to conduct
its business and operations as currently conducted and to own or hold under
lease its Properties and to enter into and perform its obligations under
this Agreement, the other Operative Agreements to which it is a party, the
Pass Through Agreement and the Series Supplements (the "Lessee Documents");
(c) the Lessee is an "air carrier" within the meaning of the
Transportation Code and a holder of a certificate under Sections 41102(a)
and 41103 of the Transportation Code and a "citizen of the United States"
within the meaning of Section 40102(a)(15) of the Transportation Code
holding an "air carrier operating certificate" issued under Chapter 447 of
the Transportation Code for aircraft capable of carrying ten (10) or more
individuals or 6,000 pounds or more of cargo, and each such certificate is
in full force and effect;
(d) the Lessee possesses all necessary certificates, franchises,
licenses, permits, rights and concessions and consents (collectively
"permits") which are material to the operation of the routes flown by it
and the conduct of its business and operations as currently conducted and
each such permit is in full force and effect;
(e) the execution, delivery and performance of the Lessee Documents
by the Lessee have been duly authorized by all necessary corporate action
on the part of the Lessee and do not require any stockholder approval, or
approval or consent of any trustee or holder of any indebtedness or
obligations of the Lessee, and each such document has been duly executed
and delivered or, in the case of the Operative Agreements identified in
Section 4.02(c) hereof, will on the Delivery Date be executed and delivered
by the Lessee and constitutes (or will constitute, as the case may be) the
legal, valid and binding obligations of the Lessee enforceable against it
in accordance with the terms thereof except as such enforceability may be
limited by bankruptcy, insolvency, moratorium, reorganization or other
similar laws or equitable principles of general application to or affecting
the enforcement of creditors' rights generally (regardless of whether
enforceability is considered in a proceeding in equity or at law);
(f) no authorization, consent or approval of or other action by, and
no notice to or filing with, any United States federal or state
governmental authority or regulatory body (other than the SEC) is required
for the execution, delivery or performance by the Lessee of the Lessee
Documents or for the use and maintenance of the Aircraft except for such
registrations, applications and recordings referred to in the opinions of
Special Aviation Counsel delivered or to be delivered pursuant to Sections
4.02(d)(iii) and 4.03 hereof and except for the filings referred to in
Sections 4.01(f) and 4.02(f) hereof, all of which shall have been duly
obtained or made and shall be in full force and effect on and as of the
Certificate Closing Date or the Delivery Date, or as contemplated by said
Sections;
(g) neither the execution, delivery or performance by the Lessee of
the Lessee Documents nor compliance with the terms and provisions hereof or
thereof, conflicts or will conflict with or results or will result in a
breach or violation of any of the terms, conditions or provisions of, or
will require any consent (other than the Consent and Agreement, the AVSA
Consent and Agreement, the Engine Consent and the Consent and Guaranty) or
approval under, any law, governmental rule or regulation or the charter
documents, as amended, or bylaws, as amended, of the Lessee or any order,
writ, injunction or decree of any court or governmental authority against
the Lessee or by which it or any of its Properties is bound or any
indenture, mortgage or contract or other agreement or instrument to which
the Lessee is a party or by which it or any of its Properties is bound, or
constitutes or will constitute a default thereunder or results or will
result in the imposition of any Lien upon any of its Properties;
(h) there are no pending or, to the knowledge of the Lessee,
threatened actions, suits, investigations or proceedings (whether or not
purportedly on behalf of the Lessee) against or affecting the Lessee or any
of its Property before or by any court or administrative agency which (A)
involve the Aircraft, (B) except for the matters described (i) under "Legal
Proceedings" in the Lessee's Annual Report on Form 10-K for the fiscal year
ended May 31, 1996 (as updated by Note 7 to the financial statements
included in the Lessee's Quarterly Reports on Form 10-Q for the fiscal
quarters ended August 31, 1996, November 30, 1996 and February 28, 1997)
and (ii) in the Lessee's Current Reports on Form 8-K dated June 7, 1996,
August 16, 1996 and March 4, 1997, as to which no representation is made
concerning the Lessee's liability (if any) or the effect of any adverse
determination upon the consolidated financial condition, business or
operations of the Lessee, if adversely determined, would materially and
adversely affect the consolidated financial condition, business or
operations of the Lessee, or (C) if adversely determined would adversely
affect the ability of the Lessee to perform its obligations under the
Lessee Documents;
(i) the Lessee has filed or caused to be filed all tax returns which
are required to be filed and has paid or caused to be paid all taxes shown
to be due and payable pursuant to such returns or pursuant to any
assessment received by the Lessee (other than assessments the payment of
which is being contested in good faith by the Lessee by appropriate
proceedings that do not involve any material danger of sale, forfeiture or
loss of the Aircraft or any part thereof), and the Lessee has no knowledge
of any related actual or proposed deficiency or additional assessment which
either in any case or in the aggregate would materially adversely affect
the Lessee's consolidated financial condition (other than, in any such case,
assessments, the payment of which is being contested in good faith by the
Lessee, as to which no representation is made concerning the Lessee's
liability (if any) or the effect of any adverse determination upon the
Lessee's consolidated financial condition);
(j) except for (A) the registration in the Owner Trustee's name of
the Aircraft pursuant to the Transportation Code to be accomplished by
filing with the FAA, of AVSA's FAA Bill of Sale, the Trust Agreement, the
Affidavits and the Application, (B) the filing with and, where appropriate,
recordation by the FAA pursuant to the Transportation Code of the
Indenture, the Indenture and Security Agreement Supplement covering the
Aircraft, the Lease and the Lease Supplement covering the Aircraft, (C) the
filing of the financing statements referred to in Sections 4.01(f) and
4.02(f) hereof and (D)(x) on the Certificate Closing Date, the taking of
possession by the Indenture Trustee of the Liquid Collateral and
maintaining possession by the Indenture Trustee thereof as contemplated in
Section 2.14(a) of the Indenture and (y) on the Delivery Date, the taking
of possession by the Indenture Trustee of the original counterpart of the
Lease and the Lease Supplement covering the Aircraft, no further action,
including any filing or recording of any document, is necessary or
advisable in order (i) to establish the Owner Trustee's title to and
interest in the Aircraft and the Lessor's Estate as against the Lessee and
any third parties, or (ii) to perfect the first security interest in and
mortgage Lien on the Trust Indenture Estate in favor of the Indenture
Trustee;
(k) on the Delivery Date, the Owner Trustee has received good and
marketable title to the Aircraft, free and clear of all Liens, except the
rights of the Lessee under the Lease and the Lease Supplement, the rights
of the Indenture Trustee under the Indenture and the beneficial interest of
the Owner Participant created by the Trust Agreement;
(l) the Lessee has heretofore delivered to the Owner Participant
true and correct copies of the Lessee's Annual Report on Form 10-K for the
fiscal year ended May 31, 1996 and its Quarterly Reports on Form 10-Q for
the fiscal quarters ended August 31, 1996, November 30, 1996 and February
28, 1997, and of the audited consolidated balance sheet of the Lessee for
the fiscal year ended May 31, 1996 and the unaudited consolidated balance
sheets of the Lessee as of August 31, 1996, November 30, 1996 and February
28, 1997, and the related consolidated statements of income, changes in
common stockholders' investment and cash flows for the fiscal year and
interim reporting periods ended on such dates, accompanied (except in the
case of such interim reporting periods) by a report thereon containing
opinions without qualification, except as therein noted, by Arthur Andersen
LLP, independent public accountants; said financial statements have been
prepared in accordance with generally accepted accounting principles
consistently applied and present fairly the financial position of the
Lessee as of such dates and the results of its operations and cash flows
for such periods and such Annual Report, Quarterly Reports and financial
statements did not, as of their respective dates of filing with the SEC,
contain any untrue statement of a material fact or omit a material fact
necessary to make the statements contained therein not misleading;
(m) with respect to ERISA:
(i) none of the Pension Plans (as defined at the end of this
Section 6.01(m)) nor their related trusts have been terminated in a
distress termination pursuant to Section 4041(c) of ERISA or by the
Pension Benefit Guaranty Corporation (together with any successor
agency or instrumentality thereto, the "PBGC") pursuant to Section
4042 of ERISA, nor have any actions been taken to so terminate any
Pension Plan or related trust and neither the Lessee nor any ERISA
Affiliate (as defined at the end of this Section 6.01(m)) has
incurred or could reasonably be expected to incur any material
liability with respect to a Pension Plan under Section 4062, 4063,
4064 or 4069 of ERISA;
(ii) there have been no "reportable events" (as such term is
defined in Section 4043(b) of ERISA) with respect to any Pension Plan
which have resulted or could reasonably be expected to result in any
material liability of the Lessee or any ERISA Affiliate;
(iii) no "accumulated funding deficiency" (as such term is defined
in Section 302 of ERISA or Section 412 of the Code) exists with
respect to any Pension Plan, whether or not waived, nor has any
request for a waiver under Section 412(d) of the Code been, or is
reasonably likely to be, filed with respect to any of the Pension
Plans;
(iv) neither the Lessee nor any ERISA Affiliate has failed to make
any contribution or payment to any Pension Plan which has resulted or
could reasonably be expected to result in the imposition of a Lien
under Section 302(f) of ERISA or Section 412(n) of the Code;
(v) all Pension Plans are in compliance in all material respects
with all applicable provisions of ERISA and the Code;
(vi) neither the Lessee nor any ERISA Affiliate has incurred or is
reasonably likely to incur any material withdrawal liability pursuant
to Section 4201 or 4204 of ERISA or any material liability under
Section 515 of ERISA;
(vii) to the best of the Lessee's knowledge, neither the Lessee
nor any ERISA Affiliate has engaged in a "prohibited transaction"
(within the meaning of Section 4975 of the Code or Section 406 of
ERISA) which could reasonably be expected to subject the Lessee to
the tax or penalties on prohibited transactions imposed by Section
4975 of the Code or Section 502 of ERISA; and
(viii) assuming the truth of the representations contained in
Section 7.09 hereof and compliance with Section 10.06 of the
Indenture, the execution and delivery of this Agreement and the other
Operative Agreements and the consummation of the transactions
contemplated hereby and thereby will not involve any transaction
which is prohibited by Section 406 of ERISA or in connection with
which a tax could be imposed pursuant to Section 4975 of the Code.
No part of the funds to be used by the Lessee in satisfaction of its
obligations under this Agreement or any other of the Operative
Agreements to which the Lessee is a party or to which the Lessee is
bound are the assets of any employee benefit plan subject to Title I
of ERISA, or any individual retirement account or an employee benefit
plan subject to Section 4975 of the Code;
as used in this Section 6.01(m), the term "Pension Plan" means an employee
pension benefit plan as defined in Section 3(2) of ERISA (other than a
multiemployer plan as defined in Section 4001(a)(3) of ERISA) which is
covered by Title IV of ERISA or subject to the minimum funding standards
under Section 412 of the Code and which is maintained, or contributed to,
by the Lessee or any ERISA Affiliate, and the term "ERISA Affiliate" means
any entity which together with the Lessee would be treated as a single
employer under Section 414(b), (c), (m) or (o) of the Code;
(n) the Lessee is a Citizen of the United States;
(o) except for the filings referred to in Sections 4.01(f), 4.02(e)
and 4.02(f) hereof, no governmental approval of any kind is required of the
Owner Participant or for the Owner Participant's execution of or
performance under this Agreement or any agreement contemplated hereby by
reason of any fact or circumstance of the Lessee, the nature of the
Aircraft or the Lessee's proposed operations or use of the Aircraft;
(p) on the Delivery Date, all premiums with respect to the insurance
required to be provided by the Lessee on or prior to the Delivery Date
under Article 13 of the Lease have been paid by the Lessee;
(q) on the Delivery Date, all sales or use taxes relating to the
sale of the Aircraft by AVSA to the Owner Trustee which are then or were
theretofore due shall have been paid;
(r) the Lessee is not in default under any mortgage, deed of trust,
indenture, lease or other instrument or agreement to which the Lessee is a
party or by which it or any of its Properties or assets may be bound, or in
violation of any applicable law, which default or violation would have a
material adverse effect on the financial condition, business or operations
of the Lessee or its ability to perform any of its obligations under the
Lessee Documents;
(s) no Default or Event of Default or Event of Loss or event, which
with the passage of time or if continued unremedied or unaltered would
constitute an Event of Loss, has occurred or exists;
(t) on the Delivery Date, the Aircraft will be in such condition so
as to enable the airworthiness certificate of such Aircraft to be in good
standing under the Transportation Code; the Aircraft will have been duly
certificated by the FAA as to type and airworthiness; there will be in
effect with respect to the Aircraft a current and valid airworthiness
certificate issued by the FAA pursuant to the Transportation Code; and
there is no fact known to the Lessee which materially adversely affects the
value, utility or condition of the Aircraft;
(u) on the Certificate Closing Date and the Delivery Date, the
Lessee shall not be in default in the performance of any term or condition
of the Purchase Agreement, the Purchase Agreement Assignment, the Engine
Warranty Assignment and the GTA and the aggregate amount of loans shall not
exceed the Debt Portion;
(v) neither the Lessee nor any subsidiary of the Lessee is an
"investment company" or a company "controlled by an investment company"
within the meaning of the Investment Company Act of 1940, as amended;
(w) on the Delivery Date, the Aircraft will, upon delivery, be fully
equipped to operate in commercial service and will comply with all
governmental requirements governing such service; and
(x) there are no broker's or underwriter's fees payable on behalf
of the Lessee in connection with the transactions contemplated in the
Operative Agreements other than those of the Underwriters and First
Chicago Leasing Corporation referred to in Article 10 hereof.
Section 6.02. Offering by Lessee. The Lessee represents and
warrants that it has authorized no one to act on its behalf in connection with
the offer or sale of any interest in the Lessor's Estate or the Trust
Agreement other than First Chicago Leasing Corporation. Neither the Lessee
nor, based on representations of First Chicago Leasing Corporation, anyone
acting on its behalf has directly or indirectly offered any interest in the
Lessor's Estate or the Trust Agreement, or similar interests, for sale to, or
solicited any offer to acquire any of the same from, anyone other than the
Owner Participant and no more than 15 other accredited investors (as such term
is defined in Regulation D promulgated under the Securities Act of 1933, as
amended).
Section 6.03. Certain Covenants of Lessee. The Lessee covenants and
agrees with the Owner Participant, the Owner Trustee (in its individual
capacity and as Owner Trustee), the Pass Through Trustee (in its individual
capacity and as Pass Through Trustee) and the Indenture Trustee (in its
individual capacity and as Indenture Trustee) as follows:
(a) The Lessee will cause to be done, executed, acknowledged and
delivered at the Lessee's cost and expense all such further acts,
conveyances and assurances as the Owner Trustee, the Indenture Trustee, the
Pass Through Trustee or the Owner Participant shall reasonably require for
accomplishing the purposes of this Agreement, the Trust Agreement, the
Purchase Agreement, the Purchase Agreement Assignment, the GTA, the Engine
Warranty Assignment, the Indenture, the Indenture and Security Agreement
Supplement, the Tax Indemnity Agreement, the Lease and the Lease Supplement
and the other Operative Agreements to which it is a party. Without
limiting the generality of this Section 6.03(a), the Lessee will promptly
take, or cause to be taken, at the Lessee's cost and expense, such action
with respect to the recording, filing, re-recording and re-filing of the
Indenture, each Indenture and Security Agreement Supplement, the Lease,
each Lease Supplement and any financing statements or other instruments as
may be necessary, or as requested by the Indenture Trustee and appropriate,
to maintain the perfection of the first security interest and the Lien
created by the Indenture, and the Owner Trustee's title to and interest in
the Aircraft and the Lessor's Estate as against the Lessee and any third
parties or if the Lessee cannot take, or cause to be taken, such action,
will furnish to the Indenture Trustee and the Owner Trustee timely notice
of the necessity of such action, together with such instruments, in
execution form, and such other information as may be required to enable
either of them to take such action at the Lessee's cost and expense in a
timely manner.
(b) From and after the Delivery Date, the Lessee shall maintain the
certificates referred to in Section 7.01 of the Lease and shall cause the
Aircraft to be duly registered, and at all times to remain duly registered,
in the name of the Owner Trustee, under the Transportation Code, and shall
furnish to the Owner Trustee such information as may be required to enable
the Owner Trustee to make application for such registration; provided,
however, that the Owner Participant, the Owner Trustee and the Indenture
Trustee agree that if at any time after December 31, 2004, so long as no
Event of Default shall have occurred and be continuing, the Lessee has
requested their consent to the registration of the Aircraft in the name of
the Owner Trustee (or, if appropriate under the laws of such
jurisdiction of reregistration, in the name of the Lessee or a sublessee
as a "lessee" or a "sublessee"), at the Lessee's expense, in a country
listed in Schedule III hereto with which the United States then
maintains normal diplomatic relations (and which is not then
experiencing war or substantial civil unrest), the Owner Participant,
the Owner Trustee and the Indenture Trustee upon receipt by the Owner
Participant, the Owner Trustee and the Indenture Trustee of the
assurances and opinion described below, shall not unreasonably withhold
their consent to such change in registration (it being agreed, without
limitation, that the inability of the Lessee to deliver such assurances
or such opinion shall constitute reasonable grounds to withhold such
consent).
As a condition to any change in the registration of the Aircraft, the
Owner Participant, the Owner Trustee in its individual and trust capacities,
and the Indenture Trustee shall have received:
(i) assurances satisfactory to them:
(A) to the effect that the insurance provisions of the Lease have
been and will be complied with and are and shall be in full force and
effect upon such change of registry;
(B) as to the continuation of the Lien of the Indenture as a
first priority, duly perfected Lien on the Aircraft;
(C) that the Owner Trustee's right, title and interest in and to
the Aircraft is recognized and fully enforceable in the new
jurisdiction of registry, that the rights of the Owner Trustee in and
to the Aircraft will not be impaired in such new jurisdiction of
registry and that the new jurisdiction of registry will give effect
to the title and registry of the Aircraft therein substantially to
the same extent as does the Government;
(D) that such new country of registry (x) would provide
substantially equivalent protection for the rights of owner
participants, lessors or lenders in similar transactions as provided
under United States law (except that, in the absence of restrictions
under the laws of such country on rights and remedies of lessors and
secured parties similar to those imposed by Sections 362 and 363 of
the Bankruptcy Code, rights and remedies similar to those available
under Section 1110 of the Bankruptcy Code shall not be required) and
(y)(i) if such change in registration is made other than in
connection with a sublease permitted under Section 7.02(a)(i) of the
Lease, imposes maintenance standards at least comparable to those of
the FAA, and (ii) if such change in registration is made in
connection with a sublease permitted under Section 7.02(a)(i) of the
Lease, imposes maintenance standards in conformity with those set
forth in Section 7.02(a)(i) of the Lease;
(E) that import and export certificates and any exchange permits
necessary to allow all Rent and other payments provided for under the
Lease, if required, shall have been procured at the Lessee's own cost
and expense by the Lessee;
(F) that the Lessee shall have effected or caused to be effected
at the Lessee's own cost and expense all recordings and filings that
are required to perfect the Lien of the Indenture;
(G) to the effect that the original indemnities (and any
additional indemnities for which the Lessee is then willing to
enter into a binding agreement to indemnify) in favor of the Owner
Participant, the Owner Trustee (in its individual capacity and as
trustee under the Trust Agreement), the Indenture Trustee (in its
individual capacity, and as trustee under the Indenture), the Pass
Through Trustee (in its individual capacity, and as trustee under
the Pass Through Agreement) and the other Indemnitees under this
Agreement, the Indenture, the Pass Through Agreement and (in the
case of the Owner Participant only) the Tax Indemnity Agreement,
afford each such party substantially the same protection as
provided prior to such change of registry;
(H) that such change will not result in the imposition of, or
increase in the amount of, any Tax (which, for this purpose, includes
the loss of any tax benefits assumed by the Owner Participant to be
available to it based upon the assumptions set forth in Section 2 of
the Tax Indemnity Agreement) for which the Lessee has not agreed to
indemnify the Owner Participant to its reasonable satisfaction, the
Indenture Trustee, the Pass Through Trustee, the Owner Trustee (or
any successor, assign or Affiliate thereof) and the Trust Estate;
(I) that any value added tax, customs duty, tariff or similar
governmental charge relating to the change in jurisdiction of
registration of the Aircraft shall have been paid in full or
adequately provided for by the Lessee to the satisfaction of the
Owner Trustee, the Indenture Trustee and the Owner Participant;
(J) of the payment by the Lessee of any reasonable fees and
expenses of the Owner Participant, the Owner Trustee, the Indenture
Trustee and the Pass Through Trustee in connection with such change
of registry, including any reasonable attorneys' fees and expenses;
(K) that duties and tariffs, if applicable, shall have been paid
for by the Lessee;
(L) as to the continuation of the Lien of the Indenture as a
first priority, duly perfected Lien on the Aircraft and the Trust
Indenture Estate, that all recordings and filings required to so
perfect the Lien of the Indenture have been duly effected, and that
no Liens (except Liens permitted under Section 6.01 of the Lease)
shall arise by reason of such registration; and
(M) that appropriate deregistration powers of attorney in favor of
the Owner Trustee and the Indenture Trustee have been executed and
delivered by the Lessee and any sublessee and, if necessary or
desirable for the effectiveness thereof, filed with the relevant
aeronautics authority; and
(ii) a favorable opinion of counsel (reasonably satisfactory to the
Owner Trustee, the Indenture Trustee and the Owner Participant) in the new
jurisdiction of registry, addressed and reasonably satisfactory to such
parties in scope, form and substance, to the effect:
(A) that the terms (including, without limitation, the governing
law, service-of-process and jurisdictional-submission provisions
thereof) of the Lease and the Indenture are legal, valid, binding and
enforceable in such jurisdiction against the Lessee, any sublessee,
the Owner Trustee and the Indenture Trustee, respectively;
(B) that it is not necessary for the Owner Participant, the Owner
Trustee, the Indenture Trustee or the Pass Through Trustee to
register or qualify to do business or meet other requirements not
already met in such jurisdiction in connection with the registration
in the new jurisdiction (and the filing and/or recordation therein of
the Indenture or the Lease) and the exercise of any rights or
remedies with respect to the Aircraft pursuant to the Lease or the
Indenture or in order to maintain such registration and the Lien of
the Indenture;
(C) that the courts of such jurisdiction would provide
substantially equivalent protection to the Lessor, the Owner
Participant, the Pass Through Trustee and the Indenture Trustee as
provided under United States law (with the exception described in
paragraph (b)(i)(D)(x) of this Section 6.03) in respect of the
transactions contemplated hereby, including, without limitation, the
remedies provided in the Indenture and the Lease;
(D) that there is no tort liability of the beneficial owner,
record owner, lessor or mortgagee of an aircraft not in possession
thereof under the laws of such jurisdiction, other than tort
liability which might reasonably have been imposed on such owner,
lessor or mortgagee under the laws of the United States or any state
thereof (it being understood that, in the event such latter opinion
cannot be given in a form satisfactory to the Owner Trustee, the
Owner Participant and the Indenture Trustee, such opinion shall be
waived, if insurance reasonably satisfactory to the Owner
Participant, the Indenture Trustee and the Owner Trustee, in its
individual capacity, is provided, at the Lessee's expense, to cover
such risk and the Lessee undertakes to keep such insurance in full
force and effect);
(E) that the laws of such jurisdiction will not impair the rights
of the Lessor in and to the Aircraft or under the Lease and (unless
the Lessee shall have agreed to provide insurance reasonably
satisfactory to the Indenture Trustee and the Owner Participant
covering the risk of requisition of use of the Aircraft by the
government of registry of the Aircraft) require fair compensation by
the government of such jurisdiction payable in currency freely
convertible into United States dollars for the loss of use of the
Aircraft in the event of such requisition;
(F) that the Owner Trustee's title to the Aircraft is recognized
and fully enforceable in such jurisdiction, that such jurisdiction
will give effect to the title of the Aircraft therein substantially
to the same extent as does the Government, and that the Lien of the
Indenture shall continue as a first priority, duly perfected lien on
the Aircraft;
(G) to such further effect with respect to such other matters as
the Owner Participant, the Owner Trustee, or the Indenture Trustee may
reasonably request; and
(H) the Lien of the Indenture continues to constitute a first
priority, duly perfected Lien on the Aircraft.
(c) The Lessee shall promptly file any reports, or furnish to the
Owner Trustee and the Owner Participant such information as may be required
to enable the Owner Trustee and the Owner Participant timely to file any
reports required to be filed by the Owner Trustee as the Lessor and the
Owner Participant under the Lease with any governmental authority.
(d) The Lessee will cause the Special Aviation Counsel to file, and
where appropriate record, on the Delivery Date, AVSA's FAA Bill of Sale,
the Lease, the Lease Supplement, the Trust Agreement, the Indenture and the
Indenture and Security Agreement Supplement. The following documents shall
be filed and, where appropriate, recorded on the Delivery Date with the
Aeronautics Authority in the following order of priority: first, AVSA's
FAA Bill of Sale, second, the Application, with the Trust Agreement and the
Affidavits, third, the Indenture with the Indenture and Security Agreement
Supplement attached thereto, and fourth, the Lease with the Lease
Supplement, the Indenture and the Indenture and Security Agreement
Supplement attached thereto.
(e) The Lessee will furnish to the Owner Participant, the Owner
Trustee and the Indenture Trustee annually after the execution of this
Agreement, by March 15 of each year, commencing with the year 1998, an
opinion, reasonably satisfactory to the Owner Participant and the Indenture
Trustee, of Special Aviation Counsel, or other counsel specified from time
to time by the Lessee acceptable to the Lessor and the Indenture Trustee:
(i) stating either (1) that in the opinion of such counsel such action has
been taken with respect to the recording, filing, re-recording and
re-filing of the Lease, the Indenture, the Trust Agreement, and any
supplements to any of them and any financing statements, continuation
statements or other instruments, and all other action has been taken, as is
necessary to maintain the Owner Trustee's title to and interest in the
Aircraft and the Lessor's Estate as against the Lessee and any third
parties and to maintain the perfection of the security interests created by
said documents and reciting the details of such action, or (2) that in the
opinion of such counsel no such action is necessary to maintain such title
or the perfection of such security interests; (ii) specifying all other
action which needs to be taken during the succeeding 14 months in order to
maintain such title and the perfection of such security interests (which
the Lessee agrees timely to take); and (iii) stating that the Owner Trustee
is the owner of legal title to the Aircraft, and the Aircraft is free and
clear of all Liens, except the security interest created by the Indenture
and such as are permitted by the Lease and the Indenture.
(f) The Lessee shall at all times maintain its corporate existence
except as permitted by Section 6.03(g) hereof and all of its rights,
privileges and franchises necessary in the normal conduct of its business,
except for any corporate right, privilege or franchise (i) that it
determines, in its reasonable, good faith business judgment, is no longer
necessary or desirable in the conduct of its business and (ii) the loss of
which will not materially adversely affect or diminish the rights of the
Holders or the Owner Participant.
(g) The Lessee shall not enter into any merger or consolidation, or
convey, transfer or lease all or substantially all of its assets as an
entirety to any Person, unless the surviving corporation or Person which
acquires by conveyance, transfer or lease all or substantially all of the
assets of the Lessee as an entirety (i) is a domestic corporation organized
and existing under the laws of the United States or a political subdivision
thereof, (ii) is a Citizen of the United States, (iii) is a U.S. Air
Carrier, (iv) expressly assumes by an instrument in writing in form and
substance satisfactory to the Owner Participant, the Indenture Trustee and
the Owner Trustee all of the Lessee's obligations hereunder and under the
other Operative Agreements, and each other document contemplated hereby or
thereby and the Lessee delivers such instrument to the Indenture Trustee,
the Owner Participant and the Owner Trustee, (v) provides an opinion from
outside counsel to the Lessee which counsel shall be reasonably
satisfactory to the Owner Participant and the Indenture Trustee and which
opinion shall be reasonably satisfactory to the Owner Participant and the
Indenture Trustee, and an officer's certificate, each stating that such
merger, consolidation, conveyance, transfer or lease and the instrument
noted in clause (iv) above comply with this Section 6.03(g), that such
instrument is a legal, valid and binding obligation of, and is enforceable
against, such survivor or Person, and that all conditions precedent herein
provided for relating to such transaction have been complied with, and (vi)
immediately after such merger, consolidation or conveyance, transfer or
lease, as the case may be, the surviving company (or Person which acquires
by conveyance, transfer or lease the assets of the Lessee) is in compliance
with all of the terms and conditions of this Agreement and the Lease and
each other Operative Agreement and each other document contemplated hereby
or thereby; provided that no such merger, consolidation or conveyance,
transfer or lease shall be permitted if the same gives rise to an Event of
Default.
Upon any consolidation or merger, or any conveyance, transfer or
lease of all or substantially all of the assets of the Lessee and the
satisfaction of the conditions specified in this Section 6.03(g), the
successor corporation formed by such consolidation or into which the Lessee
is merged or the Person 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 Lessee under this Agreement and the Lease and each other
Operative Agreement and any other document contemplated hereby and thereby
to which the Lessee is a party with the same effect as if such successor
corporation had been named as the Lessee herein and therein. No such
conveyance, transfer or lease of all or substantially all of the assets of
the Lessee as an entirety shall have the effect of releasing the Lessee or
any successor corporation which shall theretofore have become the Lessee
hereunder in the manner prescribed in this Section 6.03(g) from its
liability hereunder or under the other Operative Agreements. Nothing
contained herein shall permit any lease, sublease, or other arrangement for
the use, operation or possession of the Aircraft except in compliance with
the applicable provisions of the Lease.
(h) The Lessee agrees to give prompt written notice to the Owner
Participant, the Owner Trustee and the Indenture Trustee of any change in
the address of its chief executive office (as such term is used in Section
9-103(3) of the Tennessee Uniform Commercial Code) or of any change in its
corporate name.
(i) The Lessee agrees to furnish to the Owner Participant, the
Lessor and the Indenture Trustee:
(A) as soon as available, but in any event within one hundred
twenty (120) days after the end of each fiscal year of the Lessee, a
consolidated balance sheet as of the end of such fiscal year, and the
related consolidated statements of income, common stockholders'
equity, retained earnings and cash flows of the Lessee for the fiscal
year then ended as prepared and certified by the Lessee's independent
certified public accountants, including their opinion;
(B) within sixty (60) days after the end of the first, second and
third quarterly accounting periods in each fiscal year of the Lessee,
a consolidated balance sheet of the Lessee prepared by it as of the
close of the accounting period then ended, together with the related
consolidated statements of income, retained earnings and cash flows
for such accounting period certified by the chief accounting officer
or a financial vice president of the Lessee;
(C) promptly upon their general transmission, copies of all
reports and statements furnished by the Lessee to its stockholders;
(D) promptly after filing with the SEC, copies of the Lessee's
Annual Reports on Form 10-K (including all corresponding annual
reports to shareholders), Quarterly Reports on Form 10-Q and, if
requested, any registration statement or prospectus filed by the
Lessee with any securities exchange or with the SEC;
(E) promptly upon (and in any event within five (5) Business Days
after) any officer of the Lessee obtaining knowledge of any condition
or event which constitutes a Default or an Event of Default, an
officer's certificate specifying the nature and period of existence
thereof and what action the Lessee has taken or is taking or proposes
to take with respect thereto;
(F) from time to time, such other financial information as the
Lessor, the Owner Participant or the Indenture Trustee may
reasonably request.
Concurrently with the delivery of the financial statements referred
to in clause (A) above, the Lessee shall deliver to the Lessor, the Owner
Participant, the Indenture Trustee and the Pass Through Trustee a certificate
of the Lessee, signed by any one of the President, the Chief Financial
Officer, the General Counsel, the Treasurer or the principal accounting
officer of the Lessee, stating that the signer, or an employee reporting to
same, is familiar with the relevant terms of this Agreement and the Lease and
the signer has reviewed, or has caused to be made under such Person's
supervision a review, of the activities of the Lessee and that, to the best of
his or her knowledge, there does not exist any Default or any Event of Default
or if a Default or an Event of Default exists or did exist, specifying the
nature thereof, the period of existence thereof and what action the Lessee has
taken or proposes to take with respect thereto.
Section 6.04. Survival of Representations and Warranties. The
representations and warranties of the Lessee provided in Sections 6.01 and
6.02 hereof and in any other Operative Agreement shall survive the Closings
hereunder and the delivery of the Aircraft and the expiration or other
termination of this Agreement and the other Operative Agreements.
ARTICLE 7
OTHER PARTIES' REPRESENTATIONS, WARRANTIES AND COVENANTS
Section 7.01. Acquisitions and Offerings of Interests in Lessor's
Estate. (a) [Reserved]
(b) Owner Participant. The Owner Participant represents and
warrants that its interest in the Lessor's Estate and the Trust Agreement is
being acquired by it for its own account and not with a view to resale or
distribution thereof; provided, however, that the disposition by the Owner
Participant of its interest in the Lessor's Estate and the Trust Agreement
shall, subject to the terms and provisions of Section 7.03(d) hereof (except
as provided in clause (ii) of Section 3.05(a) hereof), at all times be within
its control and the foregoing representation shall not limit the Owner
Participant's right to transfer or sell such interests pursuant to the terms
of this Agreement. Neither the Owner Participant nor anyone authorized to act
on its behalf has directly or indirectly offered any interest in the Lessor's
Estate or the Trust Agreement, or in any similar security, for sale to, or
solicited any offer to acquire any of the same from, anyone. The Owner
Participant further represents and warrants that neither it nor anyone
authorized to act on its behalf has made or will make any offer, solicitation
or sale of any interest in the Lessor's Estate or the Trust Agreement in
violation of the provisions of Section 5 of the Securities Act of 1933, as
amended. No representation in this Section 7.01(b) shall include any action
or inaction of the Lessee, First Chicago Leasing Corporation, the
Subordination Agent, the Underwriters or any Affiliates of any thereof whether
or not such action or inaction is purportedly on behalf of the Owner Trustee,
the Owner Participant or any of their Affiliates.
Section 7.02. Citizenship. (a) Generally. Each of the Owner
Trustee, in its individual capacity and as Trustee, and the Owner Participant
severally represents and warrants that it is or will be a Citizen of the
United States on the Delivery Date. If the Owner Participant or the Owner
Trustee in its individual capacity does not comply with the requirements of
this Section 7.02, the Owner Trustee, the Indenture Trustee and the Owner
Participant hereby agree that a Default or an Event of Default shall not be
deemed to have occurred and be continuing under the Lease due to
non-compliance by the Lessee with the registration requirements in the Lease
occasioned by the noncompliance of the Owner Participant or the Owner Trustee.
(b) Owner Trustee. The Owner Trustee, in its individual capacity,
covenants that if at any time on or after the Delivery Date it shall have
actual knowledge that it has ceased to be a Citizen of the United States, it
will resign immediately as the Owner Trustee if such citizenship is necessary
under the Transportation Code as in effect at such time or, if it is not
necessary under the Transportation Code as in effect at such time, if it is
informed in writing by the Lessee, the Indenture Trustee or the Owner
Participant that such lack of United States citizenship would have any adverse
effect on the Lessee, the Indenture Trustee, the Holders or the Owner
Participant. The Owner Trustee, in its individual capacity, further covenants
that if at any time it appears reasonably probable that it will cease to be a
Citizen of the United States based on information that is (i) known to a
Responsible Officer or (ii) generally known to the public, it will promptly so
notify, to the extent permitted by law, all parties to this Agreement.
(c) Owner Participant. The Owner Participant agrees, solely for the
benefit of the Lessee, the Pass Through Trustee, the Indenture Trustee and the
Owner Trustee, that if at any time on or after the Delivery Date when the
Aircraft is registered or the Lessee proposes to register the Aircraft in the
United States (i) either it shall cease to be, or an event which has been
publicly disclosed has occurred of which the Owner Participant has knowledge
and which will cause the Owner Participant to cease to be, a Citizen of the
United States and (ii) the Aircraft shall or would therefore become ineligible
for registration in the name of the Owner Trustee under the Transportation
Code and regulations then applicable thereunder, then the Owner Participant
shall give notice thereof to the Lessee, the Owner Trustee and the Indenture
Trustee and shall (at its own expense and without any reimbursement or
indemnification from the Lessee) immediately (and in any event within a period
of 20 days) (x) effect a voting trust or other similar arrangement, (y)
transfer in accordance with the terms of this Agreement and the Trust
Agreement all its rights, title and interest in and to such Trust Agreement,
the Lessor's Estate and this Agreement, or (z) take any other alternative
action that would prevent any deregistration, or maintain or permit the United
States registration, of the Aircraft. It is agreed that the Owner Participant
shall be liable to pay promptly on request (A) to each of the other parties
hereto any actual damages (but not consequential damages) suffered by any such
other party to the extent the same shall result from the representation and
warranty of the Owner Participant in the first sentence of Section 7.02(a)
hereof proving to be untrue as of the Delivery Date; and (B) to the Lessee,
the Indenture Trustee or the Pass Through Trustee for any damages actually
(but not consequentially) incurred by the Lessee, the Indenture Trustee and
the Pass Through Trustee as a result of the Owner Participant's failure to
comply with its obligations pursuant to the first sentence of this Section
7.02(c); provided, that, the foregoing shall not restrict the Pass Through
Trustee or the Indenture Trustee from asserting against the Owner Participant
any damages actually incurred by the holders of any Pass Through Certificates.
Each party hereto agrees, upon the request and at the sole expense of the
Owner Participant, to cooperate with the Owner Participant in complying with
its obligations under the provisions of the first sentence of this Section
7.02(c), but without any obligation on the part of such other party to take
any action believed by it in good faith to be unreasonably burdensome to such
party or materially adverse to its business interests.
Section 7.03. Representations, Warranties and Covenants of Owner
Participant. (a) Representations, Warranties and Covenants. In addition to
and without limiting its other representations and warranties provided for in
this Article 7, the Owner Participant represents and warrants on the date
hereof and as of the Certificate Closing Date and the Delivery Date that:
(i) it is a corporation duly incorporated and validly existing in
good standing under the laws of the State of Delaware and it has full
corporate power, authority and legal right to carry on its present business
and operations, to own or lease its Properties and to enter into and to
carry out the transactions contemplated by this Agreement, the Tax
Indemnity Agreement, the Trust Agreement and the other Operative Agreements
to which it is party;
(ii) the execution, delivery and performance by it of this
Agreement, the Tax Indemnity Agreement, and the Trust Agreement and the
other Operative Agreements to which it is party have been duly authorized
by all necessary corporate action on its part and, assuming the accuracy of
the Lessee's representations in Section 6.01(o) hereof, do not require any
governmental approvals that would be required to be obtained by the Owner
Participant;
(iii) based on the representations, warranties and covenants
contained in Sections 6.01(m)(viii), 6.02 and 7.09 hereof and compliance
with Section 10.06 of the Indenture, neither the execution, delivery or
performance by the Owner Participant of this Agreement, the Tax Indemnity
Agreement, and the Trust Agreement and the other Operative Agreements to
which it is party nor compliance with the terms and provisions hereof or
thereof, conflicts or will conflict with or results or will result in a
breach or violation of any of the terms, conditions or provisions of, or
will require any consent or approval under any law, governmental rule or
regulation applicable to the Owner Participant or the charter documents,
as amended, or bylaws, as amended, of the Owner Participant or any
order, writ, injunction or decree of any court or governmental authority
against the Owner Participant or by which it or any of its Properties is
bound or any indenture, mortgage or contract or other agreement or
instrument to which the Owner Participant is a party or by which it or
any of its Properties is bound, or constitutes or will constitute a
default thereunder or results or will result in the imposition of any
Lien upon any of its Properties;
(iv) this Agreement, the Tax Indemnity Agreement and the Trust
Agreement and the other Operative Agreements to which it is party have been
or on the Certificate Closing Date will be duly executed and delivered by
the Owner Participant and constitute or on the Certificate Closing Date
will constitute the legal, valid and binding obligation of the Owner
Participant enforceable against it in accordance with their terms except as
such enforceability may be limited by bankruptcy, insolvency, moratorium,
reorganization or other similar laws or equitable principles of general
application to or affecting the enforcement of creditors' rights
(regardless of whether enforceability is considered in a proceeding in
equity or at law);
(v) it is not in default under any mortgage, deed of trust,
indenture, lease or other instrument or agreement to which the Owner
Participant is a party or by which it or any of its Properties may be
bound, or in violation of any applicable law, which default or violation
would have a material adverse effect on the financial condition, business
or operations of the Owner Participant or an adverse effect on the ability
of the Owner Participant to perform its obligations under this Agreement
and the other Operative Agreements to which it is or is to be a party;
(vi) there are no pending or, to the knowledge of the Owner
Participant, threatened actions, suits, investigations or proceedings
against the Owner Participant before any court, administrative agency or
tribunal which are expected to materially adversely affect the ability of
the Owner Participant to perform its obligations under this Agreement and
the other Operative Agreements to which it is or is to be a party and the
Owner Participant knows of no pending or threatened actions or proceedings
before any court, administrative agency or tribunal involving it in
connection with the transactions contemplated by the Operative Agreements;
(vii) neither the execution and delivery by it of this Agreement or
the other Operative Agreements to which it is a party nor the performance
of its obligations hereunder or thereunder requires the consent or approval
of or the giving of notice to, the registration with, or the taking of any
other action in respect of, any governmental authority or agency that would
be required to be obtained or taken by the Owner Participant except for
filings contemplated by this Agreement;
(viii) no part of the funds to be used by it to acquire the interests
to be acquired by the Owner Participant under this Agreement constitutes
assets (within the meaning of ERISA and any applicable rules and
regulations) of any employee benefit plan subject to Title I of ERISA or of
any plan or individual retirement account subject to Section 4975 of the
Code; and
(ix) it is a "U.S. Person" as defined in Section 7701(a)(30) of the
Code and is not a tax resident of another country.
Notwithstanding the foregoing or anything else contained in this
Agreement, the Owner Participant makes no representation or warranty in this
Agreement with respect to laws, rules or regulations relating to aviation or
to the nature or use of the equipment owned by the Owner Trustee, including,
without limitation, the airworthiness, value, condition, workmanship, design,
patent or trademark infringement, operation, merchantability or fitness for
use of the Aircraft, other than such laws, rules or regulations relating to
the citizenship requirements of the Owner Participant under applicable
aviation law.
(b) Lessor's Liens. The Owner Participant further represents,
warrants and covenants that there are no Lessor's Liens attributable to it (or
an Affiliate thereof) and that there will not be any Lessor's Lien
attributable to it (or an Affiliate thereof) on the Certificate Closing Date.
The Owner Participant agrees with and for the benefit of the Lessee, the Owner
Trustee, the Indenture Trustee and the Pass Through Trustee that the Owner
Participant will, at its own cost and expense, take such action as may be
necessary (by bonding or otherwise, so long as neither the Lessee's operation
and use of the Aircraft nor the validity and priority of the Lien of the
Indenture is impaired) to duly discharge and satisfy in full, promptly after
the same first becomes known to the Owner Participant, any Lessor's Lien
attributable to the Owner Participant (or an Affiliate thereof), provided,
however, that the Owner Participant shall not be required to discharge or
satisfy such Lessor's Lien which is being contested by the Owner Participant
in good faith and by appropriate proceedings so long as such proceedings do
not involve any material danger of the sale, forfeiture or loss of the
Aircraft or the Lessor's Estate or the Trust Indenture Estate or any interest
in any thereof or otherwise materially adversely affect the validity or
priority of the Lien of the Indenture.
(c) Reimbursement. Without limiting any other rights the parties
hereto may have as a result of any breach by the Owner Participant of its
obligations in Section 7.03(b) hereof, the Owner Participant agrees to
reimburse each other party hereto for all reasonable legal fees and expenses
of counsel that may be incurred by any such party as a result of the failure
of the Owner Participant to discharge and satisfy any such Lessor's Lien in
accordance with the terms of Section 7.03(b) hereof.
(d) Assignment of Interests of Owner Participant. At any time after
the Delivery Date (or upon the direction of the Lessee if Section 3.05(a)(i)
hereof shall be applicable), and subject to the conditions set forth in this
Section 7.03(d), the Owner Participant may assign, convey or otherwise
transfer to a single institutional investor or an Affiliate of an
institutional investor all (but not less than all) of the Beneficial Interest,
provided that it gives the Lessee and the Indenture Trustee at least 10
Business Days' notice of such assignment, conveyance or other transfer and
provided further that the Owner Participant and any Owner Participant
Guarantor shall remain liable for all obligations of the Owner Participant
under the Trust Agreement and the Operative Agreements to which the Owner
Participant is a party to the extent (but only to the extent) relating to the
period on or before the date of such transfer and provided that the transferee
agrees by a written instrument substantially in the form attached hereto as
Exhibit G-1 to assume primary liability for all obligations as an Owner
Participant under the Trust Agreement and the other Operative Agreements to
which such Owner Participant is a party relating to the period after the date
of transfer. Any such transferee shall (a) be (i) a bank, savings
institution, finance company, leasing company or trust company, national
banking association acting for its own account or in a fiduciary capacity as
trustee or agent under any pension, retirement, profit sharing or similar
trust or fund, insurance company, fraternal benefit society or corporation
acting for its own account having a combined capital and surplus (or, if
applicable, consolidated tangible net worth or its equivalent) of not less
than $75,000,000, (ii) a subsidiary of any Person described in clause (i)
where such Person provides (A) support for the obligations assumed by such
transferee subsidiary reasonably satisfactory to the Lessee, the Owner Trustee
and the Indenture Trustee or (B) an unconditional guaranty substantially in
the form of Exhibit G-2 attached hereto of such transferee subsidiary's
obligations, or (iii) an Affiliate of the transferring Owner Participant, so
long as such Affiliate has a combined capital and surplus (or, if applicable,
consolidated tangible net worth or its equivalent) of not less than
$75,000,000, (b) be legally capable of binding itself to the obligations of
the Owner Participant and shall expressly agree to assume all obligations of
the Owner Participant under the Trust Agreement and this Agreement and (c)
provide representations substantially similar to those contained in Sections
7.02(a) and 7.03(a) hereof. In the event of any such assignment, conveyance
or transfer, the transferee shall become a party to the Trust Agreement and
shall agree to be bound by all the terms of and will undertake all of the
obligations of the Owner Participant contained in the Trust Agreement and the
other Operative Agreements in the manner set forth in the form attached as
Exhibit G-1. A transferee hereunder shall be (i) a "U.S. Person" as defined
in Section 7701(a)(30) of the Code (or any successor provision thereto) and
such transferee shall be personally liable for any debt service to the extent
that its receipt of rentals is reduced by reason of any withholding Taxes that
result from such transferee's failure to be such a "U.S. Person" and (ii) a
Citizen of the United States or has established a voting trust, voting powers
or other arrangement reasonably satisfactory to the Indenture Trustee and the
Lessee to permit the Owner Trustee to be the registered owner of the Aircraft
under the Transportation Code. A transferee hereunder shall not be, and in
acquiring the Beneficial Interest shall not use the assets of, an employee
benefit plan subject to Title I of ERISA or an individual retirement account
or a plan subject to Section 4975 of the Code. Assuming the truth of the
representations made in Sections 6.01(m) and 7.06 hereof and compliance with
Section 10.06 of the Indenture, no such assignment, conveyance or transfer
shall violate any provision of law or regulation or create a relationship
which would be in violation thereof. The Owner Trustee shall not be on notice
of or otherwise bound by any such assignment, conveyance or transfer unless
and until it shall have received an executed counterpart of the instrument of
such assignment, conveyance or transfer. Upon any such disposition by the
Owner Participant to a transferee as above provided, the transferee shall be
deemed the "Owner Participant" or "Trustor" for all purposes of the Operative
Agreements, and shall be deemed to have made all the payments previously made
by its transferor and to have acquired the same interest in the Lessor's
Estate as theretofore held by its transferor; and each reference therein to
the "Owner Participant" or "Trustor" shall thereafter be deemed a reference
to such transferee. Notwithstanding anything to the contrary contained in
this Section 7.03(d), in no event shall the Owner Participant transfer its
interest in the Beneficial Interest to any entity whose business is that of
a nationwide or worldwide overnight or expedited delivery small package air
courier, cargo or freight deliverer or which competes with the Lessee in
such lines of business. The Lessee agrees that it will reasonably
cooperate with the Owner Participant in effecting an assignment of the
Owner Participant's interests including, without limitation, providing
letters to any successor Owner Participant permitting such successor Owner
Participant to rely on any opinions provided by the Lessee on the Delivery
Date.
(e) Actions with Respect to Lessor's Estate, Etc. The Owner
Participant agrees that it will not take any action to subject the Lessor's
Estate or the trust established by the Trust Agreement, as debtor, to the
reorganization or liquidation provisions of the Bankruptcy Code or any other
applicable bankruptcy or insolvency statute.
Section 7.04. Representations, Covenants and Warranties of SSB and
the Owner Trustee. (a) In addition to and without limiting its other
representations and warranties provided for in this Article 7, SSB represents
and warrants, in its individual capacity with respect to items (i), (ii),
(iii)(A), (iv), (v), (vi) and (vii) below, and as the Owner Trustee with
respect to items (iii)(B) and (iv) on the date hereof and as of the
Certificate Closing Date and the Delivery Date that:
(i) it is a national banking association duly organized and validly
existing in good standing under the laws of the United States of America
with its principal place of business and chief executive office (as such
terms are used in Article 9 of the Uniform Commercial Code) at 750 Main
Street, Hartford, Connecticut 06013, Attention: Corporate Trust Department
and has full corporate power and authority, in its individual capacity or
(assuming the Trust Agreement has been duly authorized, executed and
delivered by the Owner Participant) as the Owner Trustee, as the case may
be, to carry on its business as now conducted, and to execute, deliver and
perform this Agreement and the Operative Agreements to which it is or is to
be a party;
(ii) the execution, delivery and performance by SSB, either in its
individual capacity or as the Owner Trustee, as the case may be, of this
Agreement and the Operative Agreements to which it is or is to be party
have been duly authorized by all necessary corporate action on its part,
and do not contravene its articles of association or by-laws; each of this
Agreement and the other Operative Agreements to which it is or is to be a
party has been duly authorized, and has been duly executed and delivered
or, in the case of the Operative Agreements identified in Section 4.02(c)
hereof, will on the Delivery Date be duly executed and delivered by SSB,
either in its individual capacity or as the Owner Trustee, as the case may
be, and neither the execution and delivery thereof nor SSB's performance
of or compliance with any of the terms and provisions thereof will violate
any Federal or Connecticut law or regulation governing SSB's banking or
trust powers;
(iii) (A) assuming due authorization, execution and delivery by each
other party thereto, each of the Operative Agreements to which it is or is
to be party when duly executed and delivered will, to the extent each such
document is entered into by SSB in its individual capacity, constitute the
legal, valid and binding obligation of SSB in its individual capacity
enforceable against it in such capacity in accordance with its respective
terms, except as such enforceability may be limited by bankruptcy,
insolvency, reorganization or other similar laws or equitable principles of
general application to or affecting the enforcement of creditors' rights
(regardless of whether enforceability is considered in a proceeding in
equity or at law), and the performance by SSB in its individual capacity of
any of its obligations thereunder does not contravene any lease, regulation
or contractual restriction binding on SSB in its individual capacity;
(B) assuming due authorization, execution and delivery by each
other party thereto, each of the Operative Agreements to which it is or
is to be party when duly executed and delivered will, to the extent each
such document is entered into by the Owner Trustee in its trust
capacity, constitute the legal, valid and binding obligation of the
Owner Trustee enforceable against it in such capacity in accordance with
its respective terms, except as such enforceability may be limited by
bankruptcy, insolvency, reorganization or other similar laws or
equitable principles of general application to or affecting the
enforcement of creditors' rights (regardless of whether enforceability
is considered in a proceeding in equity or at law), and the performance
by the Owner Trustee of any of its obligations thereunder does not
contravene any lease, regulation or contractual restriction binding on
the Owner Trustee;
(iv) there are no pending or, to its knowledge, threatened actions
or proceedings against SSB before any court or administrative agency
which would materially and adversely affect the ability of SSB, either
in its individual capacity or as the Owner Trustee, as the case may be,
to perform its obligations under the Operative Agreements to which it is
or is to be party;
(v) it shall give the Lessee, the Indenture Trustee and the Owner
Participant at least thirty (30) days' prior written notice in the event of
any change in its chief executive office or name;
(vi) neither the execution and delivery by it, either in its
individual capacity or as the Owner Trustee, as the case may be, of any of
the Operative Agreements to which it is or is to be a party, requires on
the part of SSB in its individual capacity or any of its Affiliates the
consent or approval of or the giving of notice to, the registration with,
or the taking of any other action in respect of, any Federal or Connecticut
governmental authority or agency governing its banking or trust powers; and
(vii) on the Certificate Closing Date, the proceeds arising from the
issuance and sale of the Certificates shall be free of Lessor's Liens
attributable to SSB in its individual capacity and on the Delivery Date the
Owner Trustee shall be holding whatever title to the Aircraft as was
conveyed to it by AVSA, the Aircraft shall be free of Lessor's Liens
attributable to SSB in its individual capacity and SSB in its individual
capacity is a Citizen of the United States.
(b) Lessor's Liens. SSB, in its individual capacity, further
represents, warrants and covenants that there are no Lessor's Liens
attributable to it in its individual capacity and that there will not be any
such Lessor's Liens on the Certificate Closing Date or the Delivery Date. The
Owner Trustee, in its trust capacity, and at the cost and expense of the
Lessee, covenants that it will in its trust capacity promptly, and in any
event within 30 days after the same shall first become known to it, take such
action as may be necessary to discharge duly any Lessor's Liens attributable
to it in its trust capacity. SSB, in its individual capacity, covenants and
agrees that it will at its own expense take such action as may be necessary to
duly discharge and satisfy in full, promptly, and in any event within 30 days
after the same shall first become known to it, any Lessor's Liens attributable
to it in its individual capacity which may arise at any time after the date of
this Agreement.
(c) Indemnity for Lessor's Liens. SSB, in its individual capacity,
agrees to indemnify and hold harmless the Lessee, the Indenture Trustee, the
Owner Participant and the Pass Through Trustee and the Owner Trustee from and
against any loss, cost, expense or damage which may be suffered by the Lessee,
the Indenture Trustee, the Owner Participant, the Pass Through Trustee or the
Owner Trustee as a result of the failure of SSB to discharge and satisfy any
Lessor's Liens attributable to it in its individual capacity, as described in
Section 7.04(b) hereof.
(d) Securities Act. None of SSB, the Owner Trustee or any Person
authorized by either of them to act on its behalf has directly or indirectly
offered or sold or will directly or indirectly offer or sell any interest in
the Lessor's Estate, or in any similar security relating to the Lessor's
Estate, or in any security the offering of which for purposes of the
Securities Act of 1933, as amended, would be deemed to be part of the same
offering as the offering of the aforementioned securities to, or solicited any
offer to acquire any of the same from, any Person.
(e) Actions With Respect to Lessor's Estate, Etc. Neither SSB, in
its individual capacity, nor the Owner Trustee will take any action to subject
the Lessor's Estate or the trust established by the Trust Agreement, as
debtor, to the reorganization or liquidation provisions of the Bankruptcy Code
or any other applicable bankruptcy or insolvency statute.
Section 7.05. Representations, Warranties and Covenants of the
Indenture Trustee. (a) The Indenture Trustee in its individual capacity (other
than as the Pass Through Trustee) represents on the date hereof and as of the
Certificate Closing Date and the Delivery Date as follows:
(i) it is a national banking association duly organized and validly
existing in good standing under the laws of the United States of America
and has the power and authority to enter into and perform its obligations
under the Indenture, this Agreement and the other Operative Agreements to
which it is a party and to authenticate the Certificates to be delivered on
the Certificate Closing Date;
(ii) the Indenture and this Agreement and the other Operative
Agreements to which it is or is to be a party, and the authentication of
the Certificates to be delivered on the Certificate Closing Date, have been
duly authorized by all necessary corporate action on its part, and neither
the execution and delivery thereof nor its performance of any of the terms
and provisions thereof will violate any Federal or Utah law or regulation
relating to its banking or trust powers or contravene or result in any
breach of, or constitute any default under, its articles of association or
by-laws;
(iii) each of the Indenture and this Agreement, and the other
Operative Agreements to which it is or is to be a party, has been duly
executed and delivered or, in the case of the Operative Agreements
identified in Section 4.02(c) hereof, will on the Delivery Date be executed
and delivered by it and, assuming that each such agreement is the legal,
valid and binding obligation of each other party thereto, is (or will be,
as the case may be), the legal, valid and binding obligation of the
Indenture Trustee, enforceable against the Indenture Trustee in accordance
with its terms except as such enforceability may be limited by bankruptcy,
insolvency, reorganization or other similar laws or equitable principles of
general application to or affecting the enforcement of creditors' rights
(regardless of whether enforceability is considered in a proceeding in
equity or at law);
(iv) neither the execution and delivery by it of the Indenture and
this Agreement and the other Operative Agreements to which it is or is to
be a party, nor the performance by it of any of the transactions
contemplated hereby or thereby, requires the consent or approval of, the
giving of notice to, the registration with, or the taking of any other
action in respect of, any Federal or state governmental authority or agency
governing its banking and trust powers; and
(v) on the Certificate Closing Date, the Indenture Trustee holds
the Liquid Collateral on behalf of the Owner Trustee and on the Delivery
Date, the Indenture Trustee will hold the original counterparts of the
Lease and the Lease Supplement.
(b) Indenture Trustee's Liens. The Indenture Trustee, in its
individual capacity, further represents, warrants and covenants that there are
no Indenture Trustee's Liens attributable to it in its individual capacity and
that there will not be any Indenture Trustee's Liens on the Certificate
Closing Date or, as at and following the Delivery Date, the Aircraft. The
Indenture Trustee, in its individual capacity, covenants and agrees that it
will at its own expense take such action as may be necessary to duly discharge
and satisfy in full, promptly, and in any event within 30 days, after the same
shall first become known to it, any Indenture Trustee's Liens.
(c) Indemnity for Indenture Trustee's Liens. The Indenture Trustee,
in its individual capacity, agrees to indemnify and hold harmless the Lessee,
the Owner Participant, the Owner Trustee and the Pass Through Trustee from and
against any loss, cost, expense or damage which may be suffered by the Lessee,
the Indenture Trustee, the Owner Participant, the Owner Trustee or the Pass
Through Trustee as a result of the failure of the Indenture Trustee to
discharge and satisfy any Indenture Trustee's Liens attributable to it in its
individual capacity, as described in Section 7.05(b) hereof.
Section 7.06. Indenture Trustee's Notice of Default. The Indenture
Trustee agrees to give the Owner Participant notice of any Default or Event of
Default promptly upon a Responsible Officer of the Indenture Trustee having
actual knowledge thereof.
Section 7.07. Releases from Indenture. The Indenture Trustee
covenants and agrees, for the benefit of the Lessee and the Owner Participant,
to execute and deliver the instruments of release from the Lien of the
Indenture which it is required to execute and deliver in accordance with the
provisions of Article XIV of the Indenture, and the Owner Participant agrees,
for the benefit of the Lessee, to cause the Owner Trustee to request the
Indenture Trustee to execute and deliver such instruments of release upon
written notice from the Lessee to make such request.
Section 7.08. Covenant of Quiet Enjoyment. Each of the Owner
Participant, the Indenture Trustee, the Pass Through Trustee and the Owner
Trustee covenants and agrees as to itself only that, so long as no Event of
Default under the Lease has occurred and is continuing, neither the Owner
Participant (or the Owner Trustee, the Pass Through Trustee or the Indenture
Trustee, as the case may be) nor any Person lawfully claiming through the
Owner Participant (or the Owner Trustee, the Pass Through Trustee or the
Indenture Trustee, as the case may be) shall interfere with the Lessee's right
quietly to enjoy the Aircraft during the Term without hindrance or disturbance
by the Owner Participant (or the Owner Trustee, the Pass Through Trustee or
the Indenture Trustee, as the case may be).
Section 7.09. Pass Through Trustee's Representations and Warranties.
The Pass Through Trustee, in its individual capacity (except with respect to
clause (iii) below), represents and warrants as of the date hereof (except as
otherwise provided), as of the Pass Through Closing Date, the Certificate
Closing Date and the Delivery Date that:
(i) it is a national banking association duly organized and validly
existing in good standing under the laws of the United States of America
and has the power and authority to enter into and perform its obligations
under the Pass Through Agreement, the Series Supplements, the Intercreditor
Agreement and this Agreement and to execute and authenticate the Pass
Through Certificates to be delivered on the Pass Through Closing Date;
(ii) the execution, delivery and performance of this Agreement,
the Pass Through Agreement and the Series Supplements and the
performance of its obligations hereunder and thereunder (including the
execution and authentication of the Pass Through Certificates to be
delivered on the Pass Through Closing Date) have been fully authorized
by all necessary corporate action on its part, and, subject to (A) the
registration of the issuance and sale of the Pass Through Certificates
under the Securities Act, (B) compliance with any applicable state
securities laws and (C) the qualification of the Pass Through Agreement
under the Trust Indenture Act, neither the execution and delivery
thereof nor its performance of any of the terms and provisions thereof
will violate any Federal or Utah law or regulation relating to its
banking or trust powers or contravene or result in any breach of, or
constitute any default under its articles of association, or bylaws or
the provisions of any indenture, mortgage, contract or other agreement
to which it is a party or by which it or its properties may be bound or
affected; and
(iii) each of this Agreement and the Pass Through Agreement has
been, and as of the Pass Through Closing Date the Series Supplements
will be, duly executed and delivered by it (in its individual and trust
capacities) and, assuming that each such agreement is the legal, valid
and binding obligation of each other party thereto, is or will be, as
the case may be, the legal, valid and binding obligation of the Pass
Through Trustee (in its individual and trust capacities), enforceable in
accordance with its respective terms except as limited by bankruptcy,
insolvency, moratorium, reorganization or other similar laws or
equitable principles of general application to or affecting the
enforcement of creditors' rights generally (regardless of whether such
enforceability is considered in a proceeding in equity or at law).
Section 7.10. Survival of Representations, Warranties and Covenants.
The representations, warranties and covenants of the Owner Participant, the
Owner Trustee (in its individual or trust capacity), the Pass Through Trustee
(in its individual or trust capacity), the Indenture Trustee (in its
individual or trust capacity) and the Subordination Agent (in its individual
or trust capacity) provided for in this Article 7, and their respective
obligations under any and all of them, shall survive the Closings, the
delivery of the Aircraft and the expiration or other termination of this
Agreement, and the other Operative Agreements.
Section 7.11. Lessee's Assumption of the Certificates. (a) Subject
to compliance by the Lessee with all of its obligations under the Operative
Agreements, each of the Owner Participant, the Owner Trustee, the Indenture
Trustee, the Pass Through Trustee and the Lessee covenants and agrees that if
the Lessee elects to terminate the Lease and to purchase the Aircraft pursuant
to Section 4.02(a)(A), (D) or (E) of the Lease, and so long as no Event of
Default shall have occurred and be continuing then, upon compliance with the
applicable provisions of said Section 4.02(a) of the Lease, the Owner Trustee
will transfer to the Lessee, without recourse or warranty (except as to the
absence of Lessor's Liens attributable to the Owner Trustee) but subject to
the Lien of the Indenture, all of the Owner Trustee's right, title and
interest in and to the Aircraft, and if the Lessee, in connection with such
purchase, elects pursuant to Section 4.02(a)(A), (D) or (E) of the Lease to
assume the obligations of the Owner Trustee to the Indenture Trustee and the
Holders under the Indenture, the Certificates and hereunder, then the Lessee
shall so notify the Indenture Trustee (such notice to be given at least 30 and
not more than 60 days prior to the effective date of such assumption), and
each of the parties shall execute and deliver appropriate documentation
permitting the Lessee to assume such obligations on the basis of full recourse
to the Lessee, maintaining for the benefit of the Holders the security
interest in the Aircraft created by the Indenture, and upon compliance with
the provisions of this Section 7.11 releasing the Owner Participant and the
Owner Trustee from all obligations in respect of the Certificates, the
Indenture, this Agreement and the other Operative Agreements, except any
obligations relating to the period prior to such assumption and take all
such other actions, at the Lessee's expense, as are reasonably necessary to
permit such assumption by the Lessee.
(b) In connection with such assumption:
(i) the Lessee shall execute and deliver an instrument satisfactory
in form and substance to the Indenture Trustee (A) pursuant to which the
Lessee irrevocably and unconditionally assumes and undertakes, with full
recourse to the Lessee, to pay, satisfy and discharge when and as due (at
the stated maturity thereof, by acceleration or otherwise) the principal
of, Make-Whole Premium, if any, interest and all other sums owing on all
Outstanding Certificates (or on the Lessee's substituted obligations) in
accordance with their terms and to punctually perform and observe all of
the covenants and obligations hereunder and under the Indenture and the
Certificates (as the same may be amended in connection with such
assumption) to be performed or observed by the Owner Trustee and (B) which
contains amendments to the Indenture, in form and substance satisfactory to
the Holders and the Indenture Trustee, that incorporate therein such
provisions from the Lease and this Agreement as may be appropriate,
including, without limitation, events of default substantially identical in
scope and effect to those set forth in the Lease and covenants
substantially identical to the covenants of the Lessee hereunder and under
the Lease;
(ii) the instrument referred to in paragraph (i) of this Section
7.11(b), any Uniform Commercial Code financing statements relating thereto,
and any other documents which shall be necessary (or reasonably requested
by the Indenture Trustee) to establish the Lessee's title to and interest
in the Aircraft or to reflect the substitution of the Lessee for the Owner
Trustee under the Operative Agreements or to continue the perfection of the
security interests in the Aircraft and the other rights, Property and
interests included in the Trust Indenture Estate for the benefit of the
Holders (or the Lessee's substituted obligations) shall be filed in such
form, manner and places as are necessary or, in the reasonable opinion of
the Indenture Trustee, advisable for such purpose;
(iii) the Indenture Trustee shall have received an insurance report
dated the effective date of such assumption of an independent insurance
broker and certificates of insurance, each in form and substance
satisfactory to the Indenture Trustee, as to the due compliance as of the
effective date of such assumption with the terms of Article 13 of the Lease
(as it relates to the Indenture Trustee) relating to the insurance with
respect to the Aircraft;
(iv) the Indenture Trustee shall have received evidence that as of
the effectiveness of the assignment on the date of such assumption the
Aircraft is free and clear of all Liens other than the Lien of the
Indenture and other Permitted Liens;
(v) the Indenture Trustee shall have received a certificate from
the Lessee that no Event of Default shall have occurred and be continuing
as of the effective date of such assumption; and
(vi) the Indenture Trustee shall have received (A) from counsel for
the Lessee (who may be the Lessee's General Counsel) a legal opinion, in
form and substance satisfactory to the Indenture Trustee (w) with respect
to the compliance of the assumption contemplated hereby with the terms,
provisions and conditions hereof, (x) with respect to the due
authorization, execution, delivery, validity and enforceability of the
instrument referred to in paragraph (i) of this Section 7.11(b), (y)
with respect to the continued perfection of the first and prior Lien and
security interest in the Aircraft for the benefit of the Holders of the
Certificates (or the Lessee's substituted obligations) referred to in
paragraph (ii) of this Section 7.11(b) and (z) with respect to the
continued availability of the benefits of Section 1110 of the Bankruptcy
Code to the Indenture Trustee for the benefit of the Holders with
respect to the Aircraft after giving effect to such assumption, (B) from
counsel to the Indenture Trustee and Special Aviation Counsel, a legal
opinion comparable to the respective opinions delivered on the
Certificate Closing Date or the Delivery Date, as the case may be, with
such changes therein as may be appropriate in light of such assumption,
and (C) in the case of each opinion described in clause (A) or (B)
above, covering such additional matters as the Indenture Trustee shall
reasonably request.
(c) The Lessee shall pay all reasonable expenses (including
reasonable fees and expenses of counsel) of the Indenture Trustee, the Owner
Trustee, the Pass Through Trustee and the Owner Participant in connection with
such assumption.
Section 7.12. Indebtedness of Owner Trustee. So long as the
Indenture is in effect, the Owner Trustee, not in its individual capacity, but
solely as trustee under the Trust Agreement, shall not incur any indebtedness
for borrowed money except as expressly contemplated herein or in any other
Operative Agreement (excluding the Tax Indemnity Agreement) and shall not
engage in any business or other activity other than the transactions
contemplated herein or in any other Operative Agreement (excluding the Tax
Indemnity Agreement) and all necessary or appropriate activity related
thereto.
Section 7.13. Compliance with Trust Agreement, Etc. Each of the
Owner Participant, SSB and the Owner Trustee agrees with the Lessee, the
Indenture Trustee and the Pass Through Trustee that so long as the Lien of the
Indenture shall be in effect it will (i) comply with all of the terms of the
Trust Agreement applicable to it in its respective capacity, the noncompliance
with which would materially adversely affect any such party and (ii) not take
any action, or cause any action to be taken, to amend, modify or supplement
any other provision of the Trust Agreement in a manner that would materially
adversely affect any such party without the prior written consent of such
party. The Owner Trustee confirms for the benefit of the Lessee, the
Indenture Trustee and the Pass Through Trustee that it will comply with the
provisions of Article 2 of the Trust Agreement. Notwithstanding anything else
to the contrary in the Trust Agreement, so long as the Lease remains in
effect, the Owner Participant agrees not to terminate or revoke the trust
created by the Trust Agreement without the consent of the Lessee. If and so
long as the Indenture shall not have been discharged the consent of the
Indenture Trustee shall also be required prior to any termination or
revocation of such trust and in addition, the Owner Participant will, at the
Lessee's expense, promptly and duly execute and deliver to the Indenture
Trustee such documents and assurances including, without limitation,
conveyances, financing statements and continuation statements with respect to
financing statements and take such further action as the Indenture Trustee may
from time to time reasonably request and furnish in order to protect the
rights and remedies created or intended to be created in favor of the
Indenture Trustee under the Indenture and to create for the benefit of the
Certificate Holders a valid first priority Lien with respect to, and a first
and prior perfected security interest in, the Trust Indenture Estate.
Section 7.14. Subordination Agent's Representations, Warranties and
Covenants. (a) Representations and Warranties. The Subordination Agent
represents and warrants as of the date hereof (except as otherwise provided),
as of the Pass Through Closing Date, the Certificate Closing Date and the
Delivery Date that:
(i) it is a national banking association duly organized and validly
existing in good standing under the laws of the United States of America
and has the corporate power and authority to enter into and perform its
obligations under this Agreement, the Liquidity Facilities and the
Intercreditor Agreement;
(ii) the execution, delivery and performance of this Agreement, each
of the Liquidity Facilities and the Intercreditor Agreement and the
performance of its obligations hereunder and thereunder have been fully
authorized by all necessary corporate action on its part, and, neither the
execution and delivery thereof nor its performance of any of the terms and
provisions thereof will violate any Federal or Utah law or regulation
relating to its banking or trust powers or contravene or result in any
breach of, or constitute any default under its articles of association, or
bylaws or the provisions of any indenture, mortgage, contract or other
agreement to which it is a party or by which it or its properties may be
bound or affected;
(iii) each of this Agreement, the Liquidity Facilities and the
Intercreditor Agreement has been duly executed and delivered by it and,
assuming that each such agreement is the legal, valid and binding
obligation of each other party thereto, is or will be, as the case may be,
the legal, valid and binding obligation of the Subordination Agent,
enforceable in accordance with its respective terms except as limited by
bankruptcy, insolvency, moratorium, reorganization or other similar laws or
equitable principles of general application to or affecting the enforcement
of creditors' rights generally (regardless of whether such enforceability
is considered in a proceeding in equity or at law);
(iv) there are no Taxes payable by the Subordination Agent imposed
by the State of Utah or any political subdivision or taxing authority
thereof in connection with the execution, delivery and performance by
the Subordination Agent of this Agreement, any of the Liquidity
Facilities or the Intercreditor Agreement (other than franchise or other
taxes based on or measured by any fees or compensation received by the
Subordination Agent for services rendered in connection with the
transactions contemplated by the Intercreditor Agreement or any of the
Liquidity Facilities), and there are no Taxes payable by the
Subordination Agent imposed by the State of Utah or any political
subdivision thereof in connection with the acquisition, possession or
ownership by the Subordination Agent of any of the Certificates other
than franchise or other taxes based on or measured by any fees or
compensation received by the Subordination Agent for services rendered
in connection with the transactions contemplated by the Intercreditor
Agreement or any of the Liquidity Facilities);
(v) there are no pending or threatened actions or proceedings
against the Subordination Agent before any court or administrative agency
which individually or in the aggregate, if determined adversely to it,
would materially adversely affect the ability of the Subordination Agent to
perform its obligations under this Agreement, the Intercreditor Agreement
or any Liquidity Facility;
(vi) the Subordination Agent has not directly or indirectly offered
any Certificate for sale to any Person or solicited any offer to acquire
any Certificates from any Person, nor has the Subordination Agent
authorized anyone to act on its behalf to offer directly or indirectly any
Certificate for sale to any Person, or to solicit any offer to acquire any
Certificate from any Person; and the Subordination Agent is not in default
under any Liquidity Facility; and
(vii) the Subordination Agent is not directly or indirectly
controlling, controlled by or under common control with the Owner
Participant, the Owner Trustee, any Underwriter or the Lessee.
(b) Covenants. (i) The Subordination Agent agrees not to amend any
Liquidity Facility without the consent of the Lessee (so long as no Event of
Default shall have occurred and be continuing) and of the Owner Participant
(such consents not to be unreasonably withheld).
(ii) In connection with the deposit in the applicable Cash
Account of amounts drawn pursuant to any Downgrade Drawing under a
Liquidity Facility, the Subordination Agent agrees, so long as no Event of
Default shall have occurred and be continuing, to pay to the Lessee
promptly following each Regular Distribution Date any Investment Earnings
on the amount so deposited which remain after application of such
Investment Earnings pursuant to Section 2.06 of such Liquidity Facility to
the interest payable on such Downgrade Drawing under Section 3.07 of such
Liquidity Facility. Capitalized terms used in this Section shall have the
meanings specified in the Intercreditor Agreement.
ARTICLE 8
TAXES
Section 8.01. Lessee's Obligation to Pay Taxes. (a) Generally. The
Lessee agrees promptly to pay when due, and to indemnify and hold each
Indemnitee harmless from all license, recording, documentary, registration and
other fees and all taxes (including, without limitation, income, gross
receipts, sales, rental, use, value added, property (tangible and intangible),
ad valorem, excise and stamp taxes), fees, levies, imposts, recording duties,
duties, charges, assessments or withholdings of any nature whatsoever,
together with any assessments, penalties, fines, additions to tax or interest
thereon (individually, a "Tax," and collectively called "Taxes"), however
imposed or asserted (whether imposed upon any Indemnitee, the Lessee, all or
any part of the Aircraft, Airframe, any Engine or any Part or the Lessor's
Estate, the Trust Indenture Estate, Rent, the Certificates or otherwise upon
or with respect to any Operative Agreement, any payments thereunder or
otherwise in connection therewith), by any Federal, state or local government
or taxing authority in the United States, or by any government or taxing
authority of a foreign country or of any political subdivision or taxing
authority thereof or by a territory or possession of the United States or an
international taxing authority relating to or measured by:
(i) the construction, mortgaging, financing, refinancing, purchase,
acceptance, rejection, delivery, nondelivery, transport, location, ownership,
registration, reregistration, deregistration, insuring, assembly, possession,
repossession, operation, use, non-use, condition, maintenance, repair,
improvement, conversion, sale, return, abandonment, preparation, installation,
storage, redelivery, replacement, manufacture, leasing, subleasing,
sub-subleasing, modification, alteration, rebuilding, importation, transfer of
title, transfer of registration, exportation or other application or
disposition of, or the imposition of any Lien (or the incurrence of any
liability to refund or pay over any amount as a result of any Lien) on, the
Aircraft, the Airframe, any Engine or any Part or any interest therein;
(ii) amounts payable under the Operative Agreements;
(iii) the Property, or the income or other proceeds received with
respect to the Property attributable to the transactions contemplated by
the Operative Agreements, held by the Owner Trustee under the Trust
Agreement or after an Event of Default under the Lease, or by the Indenture
Trustee under the Indenture;
(iv) otherwise with respect to any Operative Agreement, any
interest therein or by reason of the transactions described in or
contemplated by the Operative Agreements;
(v) the principal or interest or other amounts payable with respect
to the Certificates;
(vi) the Pass Through Certificates or the Certificates or the
issuance, sale, acquisition, reoptimization, or refinancing thereof or the
beneficial interests in the Trust Estate or the Trust Indenture Estate or
the creation thereof under the Trust Agreement or the Indenture, or the
security interest created or perfected thereby or by any filing thereof;
(vii) any assumption by the Lessee pursuant to Section 7.11 of this
Agreement and Section 2.12 of the Indenture;
(viii) the Aircraft, the Airframe, any Engine or any Part; or
(ix) the rentals (including Basic Rent, Renewal Rent and
Supplemental Rent), receipts or earnings arising from the Operative
Agreements.
(b) Exceptions. The indemnity provided for in Section 8.01(a) shall
not extend to any of the following:
(i) With respect to an Indemnitee, Taxes based upon, measured by or
with respect to the net or gross income, items of tax preference or minimum
tax or excess profits, receipts, value-added taxes, capital, franchise, net
worth (whether denominated income, excise, capital stock, or doing
business taxes) or other similarly-based taxes (other than sales, use,
transfer, rental, ad valorem, stamp, property, or similar taxes) ("Income
Taxes"), provided, however, that this clause (i) shall not exclude from the
indemnity described in Section 8.01(a) above any such Income Taxes to the
extent such taxes are imposed by any jurisdiction in which the Indemnitee
would not be subject to such taxes but for, or would be subject to such
taxes solely as a result of, (x) the operation, registration, location,
presence, or use of the Aircraft, Airframe, any Engine or any Part thereof,
in such jurisdiction or (y) the place of incorporation or principal office
or the activities of the Lessee or any sublessee in such jurisdiction (it
being understood that (A) any such indemnity would be payable only to the
extent of the net harm incurred by the Indemnitee from such Income Taxes,
taking into account any incremental current Tax benefit in another tax
jurisdiction resulting from payment of such Income Taxes and (B) this
sentence would require indemnification in a jurisdiction in which the
Indemnitee is already subject to an Income Tax (an "Existing Income Tax")
only if an event set forth in Clause (x) or (y) of this sentence causes the
Indemnitee to be subject to an Income Tax in that jurisdiction (a "New
Income Tax") other than an Existing Income Tax, and such New Income Tax
would have been imposed even if the activities contemplated by the
Operative Agreements were the Indemnitee's sole nexus to the jurisdiction);
provided, further, that the provisions of this paragraph (b)(i) relating to
Income Taxes shall not exclude from the indemnity described in Section
8.01(a) hereof any Income Taxes for which the Lessee would be required to
indemnify an Indemnitee (x) so that any payment under the Operative
Agreements, otherwise required to be made on an After-Tax Basis, is made on
an After-Tax Basis or (y) pursuant to the last sentence of Section 8.02,
8.05, 9.02 or 9.05 of this Agreement;
(ii) [Reserved];
(iii) Taxes imposed with respect to the Aircraft and arising out
of or measured by acts, omissions, events or periods (or any combination
of the foregoing) which occur after the later of (A) the payment in full
of all amounts payable by the Lessee pursuant to and in accordance with
the Operative Agreements, or the earlier discharge in full of the
Lessee's payment obligations under and in accordance with the Lease and
the Operative Agreements, and (B) the earliest of (x) the expiration of
the Term of the Lease and return of the Aircraft in accordance with
Article 12 of the Lease, (y) the termination of the Lease in accordance
with the applicable provisions of the Lease and return of the Aircraft
in accordance with the Lease, or (z) the termination of the Lease in
accordance with the applicable provisions of the Lease and the transfer
of all right, title and interest in the Aircraft to the Lessee pursuant
to its exercise of any of its purchase options set forth in Section
4.02(a) of the Lease, provided that this exclusion (iii) shall not apply
in respect of any payment made after the dates set forth in clauses (A)
and (B) above unless such payment is made with respect to any event or
circumstance occurring on, with or prior to such return or transfer or
period prior to such return or transfer, or Taxes incurred in connection
with the exercise of any remedies pursuant to Article 17 of the Lease
following the occurrence of an Event of Default;
(iv) As to the Owner Trustee, Taxes imposed against the Owner
Trustee upon or with respect to any fees for services rendered in its
capacity as Owner Trustee under the Trust Agreement or, as to the
Indenture Trustee, Taxes imposed against the Indenture Trustee upon or
with respect to any fees received by it for services rendered in its
capacity as Indenture Trustee under the Indenture;
(v) Taxes imposed on an Indemnitee that would not have been imposed
but for the willful misconduct or gross negligence of such Indemnitee
(other than gross negligence or willful misconduct not actually committed
by but instead imputed to such Indemnitee by reason of such Indemnitee's
participation in the transactions contemplated by the Operative Agreements)
or the breach by such Indemnitee of: (i) in the case of an Indemnitee other
than the Owner Participant, any representation, warranty or covenant
contained in the Operative Agreements or any document delivered in
connection therewith and (ii) in the case of the Owner Participant, the
representations or covenants in Sections 7.02(a), (c); 7.03(a)(i), (ii),
(iii), (iv), (vii), (ix); and 7.03(b), (c), (d), (e) of this Agreement (in
either case unless attributable to a breach of representation, warranty or
covenant of the Lessee);
(vi) Taxes imposed on, and not collected by withholding from
payments of Rent, the Owner Trustee or the Owner Participant or any
successor, assign or Affiliate thereof which became payable by reason of
any voluntary or involuntary transfer or disposition by such Indemnitee
subsequent to the Delivery Date, including revocation of the Trust, of any
interest in some or all of the Aircraft, Airframe, Engines or Parts thereof
or its interest in the Lessor's Estate (not including any transfers of any
Certificates pursuant to Section 15.01(a) hereof) or a disposition in
connection with a bankruptcy or similar proceedings involving either the
Lessor or the Owner Participant other than (A) transfers resulting from a
loss, substitution or modification of the Aircraft, Engines or any Part,
(B) any transfer of the Aircraft, Engines or any Part (in each case other
than at Fair Market Value) to the Lessee or other person in possession
thereof, (C) transfers attributable to an Event of Default or (D) a
transfer pursuant to the Lessee's exercise of its rights under Section
10.01 of the Lease; the parties agree to cooperate to minimize any such
Taxes covered by this provision;
(vii) Taxes imposed on the Owner Participant for which the Lessee is
obligated to indemnify the Owner Participant pursuant to the Tax Indemnity
Agreement;
(viii) Taxes imposed on a successor, assign or other transferee
of the Owner Participant or the Owner Trustee that is not a U.S. Person
or an Indemnitee as of the date hereof under the Operative Agreements
(including, without limitation, a transferee which is a new lending
office of an original Indemnitee) which on the Certificate Closing Date
is an Indemnitee (for purposes of this clause (viii), an "original
Indemnitee") or such original Indemnitee to the extent that such Taxes
exceed the amount of Taxes that would have been imposed and would have
been indemnifiable pursuant to Section 8.01(a) hereof had there not been
a succession, assignment or other transfer by such original Indemnitee
of any such interest of such Indemnitee in the Aircraft or any Part, any
interest in or under any Operative Agreement, or any proceeds thereunder
(it being understood that for purposes of determining the amount of
indemnification that would have been due to such original Indemnitee
with respect to a net income Tax, it shall be assumed that such original
Indemnitee would be subject to taxation on its income at the highest
marginal statutory rate applicable to it), provided, however, that the
exclusion provided by this clause (viii) shall not apply in the case of
a succession, transfer or disposition (A) that occurs after the Lease
has been declared in default or if such transfer or disposition is
pursuant to the exercise of remedies under Article 17 of the Lease, (B)
which is an actual or deemed transfer pursuant to Section 7.11 hereof or
as a consequence of a Refinancing under Section 15.01 hereof, or any
actual or deemed transfer of a Certificate that as part of a Refinancing
under Section 15.01 hereof is not retired, but only to the extent the
Taxes attributable to such transfer exceed the amount of Taxes that
would have been imposed on such transferor if the debt had instead been
retired, (C) to the extent necessary to make payments with respect to
such Taxes on an After-Tax Basis, (D) to the extent such Taxes are
directly attributable to the failure of the Lessee to take
administrative actions as have been reasonably requested of it in
writing in a timely manner and which will result in no after-tax cost or
expense to the Lessee or (E) in the case of the Owner Participant or the
Lessor, to any Tax other than an Income Tax;
(ix) [Reserved];
(x) Any Taxes which have been included in the Purchase Price and
which have been paid to the applicable taxing authorities;
(xi) Any Taxes which would not have been imposed but for a Lessor's
Lien or an Indenture Trustee's Lien; and
(xii) Any Taxes imposed on the Owner Participant arising under or in
connection with any prohibited transaction, within the meaning of Section
406 of ERISA or Section 4975(c)(1) of the Code ("Prohibited Transaction");
provided, however, that in the event any prohibited transaction arises
which is not exempt under any class prohibited transaction exemption or any
individual or statutory prohibited transaction exemption (individually or
collectively, a "PTE") then the indemnity provided for herein shall extend
to any Taxes incurred by the Owner Participant (or any Affiliate thereof)
as the result of any Prohibited Transaction arising out of the purchase or
holding of any Loan Certificates by an employee benefit plan subject to
Title I of ERISA or by a plan subject to Section 4975 of the Code
(individually or collectively, an "ERISA Plan") with respect to which the
Owner Participant is a party in interest, within the meaning of Section
3(14) of ERISA, or a disqualified person,within the meaning of Section 4975
of the Code, except, however, that such Indemnity shall not extend to any
Taxes incurred by the Owner Participant (or any Affiliate thereof) as the
result of any Prohibited Transaction occurring with respect to the purchase
or holding of any Loan Certificates (A) over which purchase or holding the
Owner Participant (or an Affiliate thereof) has discretion or control
(other than in the capacity of a custodian, directed trustee or other
similar nondiscretionary capacity), or (B) by an ERISA Plan with respect to
which the Owner Participant (or any Affiliate thereof) is a "plan sponsor"
within the meaning of Section 3(16)(B) of ERISA.
(c) Withholding. The Pass Through Trustee shall withhold any Taxes
required to be withheld on payments to any holder of a Pass Through
Certificate who is a Non-U.S. Person except to the extent that such a holder
of a Pass Through Certificate has furnished evidence to the Pass Through
Trustee sufficient under applicable law to entitle such holder of a Pass
Through Certificate to any exemption from or reduction in the rate of
withholding on interest claimed by such holder of a Pass Through Certificate.
The Indenture Trustee shall withhold any Taxes required to be withheld on any
payment to a Holder pursuant to Section 5.09 of the Indenture. If the
Indenture Trustee or the Pass Through Trustee fails to withhold a Tax required
to be withheld with respect to any Holder of a Certificate or any holder of a
Pass Through Certificate or any claim is otherwise asserted by a taxing
authority against the Owner Trustee or Owner Participant for any withholding
tax, the Lessee will indemnify the Owner Trustee and the Owner Participant
(without regard to the exclusions set forth in Section 8.01(b) hereof) on an
After-Tax Basis against any such Taxes required to be withheld and any
interest and penalties with respect thereto, along with any other costs
(including reasonable attorney's fees) incurred in connection with any such
claim. The Indenture Trustee or the Pass Through Trustee, as the case may be,
in its individual capacity (and without recourse to the Trust Indenture
Estate), shall indemnify the Lessee (without regard to the exclusions set
forth in Section 8.01(b) hereof) on an After-Tax Basis for any payment the
Lessee shall have made pursuant to the preceding sentence.
Section 8.02. After-Tax Basis. The amount which the Lessee shall be
required to pay with respect to any Tax indemnified against under Section 8.01
shall be an amount sufficient to restore the Indemnitee, on an After-Tax
Basis, to the same position such party would have been in had such Tax not
been incurred, provided that the calculation of any additional amounts owing
to any Indemnitee as a result of the Lessee's obligation to indemnify on an
After-Tax Basis shall be made without regard to the exclusions set forth in
Section 8.01(b). If any Indemnitee actually realizes a tax benefit by
reason of the payment of any Tax paid or indemnified against by the Lessee,
such Indemnitee shall promptly pay to the Lessee, to the extent such tax
benefit was not previously taken into account in computing such payment,
but not before the Lessee shall have made all payments then due to such
Indemnitee under this Agreement, the Tax Indemnity Agreement and any other
Operative Agreement, an amount equal to the lesser of (x) the sum of such
tax benefit plus any other tax benefit actually realized by such Indemnitee
that would not have been realized but for any payment made by such
Indemnitee pursuant to this sentence and not already paid to the Lessee,
and (y) the amount of the payment made under Section 8.01 hereof and this
Section 8.02 by the Lessee to such Indemnitee plus the amount of any other
payments by the Lessee to such Indemnitee theretofore required to be made
under this Section 8.02 and Sections 8.01 and 8.05 hereof (and the excess,
if any, of the amount described in clause (x) above over the amount
described in clause (y) above shall be carried forward and applied to
reduce pro tanto any subsequent obligations of the Lessee to make payments
to such Indemnitee pursuant to Section 8.01 hereof); provided, however,
that notwithstanding the foregoing portions of this sentence, such
Indemnitee shall not be obligated to make any payment to the Lessee
pursuant to this sentence as long as an Event of Default shall have
occurred and be continuing under the Lease. The Lessee shall reimburse on
an After-Tax Basis such Indemnitee (and without regard to Section 8.01(b)
hereof, except for clause (v) thereof) for any payment of a tax benefit
pursuant to the preceding sentence (or a tax benefit otherwise taken into
account in calculating the Lessee's indemnity obligation hereunder) to the
extent that such tax benefit is subsequently disallowed or reduced
(including the expiration of any tax credit carryovers or carrybacks of
such Indemnitee that would not otherwise have expired).
Section 8.03. Time of Payment. Any amount payable to an Indemnitee
pursuant to this Article 8 shall be paid promptly, but in any event within 30
days after receipt of a written demand therefor from such Indemnitee
accompanied by a written statement describing in reasonable detail the basis
for such indemnity and the computation of the amount so payable, provided that
in the case of amounts which are being contested by the Lessee in good faith
or by the Indemnitee in either case pursuant to Section 8.04 hereof, such
amount shall be payable within 30 days after the time such contest is finally
resolved.
Section 8.04. Contests. If a written claim is made against any
Indemnitee for Taxes with respect to which the Lessee is liable for a payment
or indemnity hereunder, such Indemnitee shall promptly (but in any event
within 30 days of receipt thereof) give the Lessee notice in writing of such
claim and shall furnish the Lessee with copies of any written requests for
information sent to such Indemnitee (and not the Lessee) from any taxing
authority to the extent relating to such Taxes with respect to which the
Lessee may be required to indemnify hereunder and with respect to which it
would be necessary or beneficial to have information provided by the Lessee;
provided, however, that the failure of an Indemnitee to give such notice or
furnish such copy shall not terminate any of the rights of such Indemnitee
under this Article 8, except to the extent that the Lessee's contest rights
have been materially and adversely impaired by the failure to provide such
notice or copy. The Lessee may, at its option, contest in its own name or, if
required by law, require the Indemnitee to contest in good faith, with due
diligence and at the Lessee's expense, if timely requested in writing by the
Lessee, the validity, applicability or amount of such Taxes by:
(i) resisting payment thereof if lawful and practicable or not
paying the same except under protest if protest is necessary and proper in
each case so long as non-payment will not result in a material risk of the
sale, forfeiture or loss of, or the creation of a Lien other than a
Lessor's Lien on the Aircraft, Airframe or any Engine or any risk of
criminal liability; or
(ii) if the payment be made, using reasonable efforts to obtain a
refund thereof in appropriate administrative and judicial proceedings.
Notwithstanding the foregoing, the Lessee shall not be permitted or entitled
to contest any such Tax in its own name unless the Tax is reflected in a
report or a return of the Lessee or raised in an audit or other proceeding of
the Lessee and the Lessee is allowed to directly contest such Tax under
applicable law of the taxing jurisdiction provided, that if the Lessee is so
permitted under applicable law to contest a Tax asserted against the Lessee
and the same or similar Tax is also asserted against the Indemnitee, each of
the Lessee and such Indemnitee shall conduct its contest in its own name and
the Lessee and such Indemnitee will cooperate in a reasonable manner with
respect to the respective contests of such Tax.
If the Indemnitee, after reasonable discussion with the Lessee and
consideration in good faith of any suggestion made by the Lessee as to the
method of pursuing such contest, elects to conduct the contest, such
Indemnitee shall control the contest and shall determine the manner in which
to contest such Taxes and shall periodically or upon the Lessee's request
advise the Lessee of the progress of such contest; provided, however, that the
Lessee shall have the right to be consulted in good faith with respect to any
contest of claims subject to indemnification hereunder, including governmental
and judicial conferences and the right to be consulted in good faith regarding
the relevant portions of all related submissions to any governmental or other
authority, provided, however, that the Lessee shall be permitted to
participate in any such contest only (x) with respect to issues that can be
separated on audit from any Taxes for which the Lessee is not required to
indemnify the Indemnitee hereunder, and (y) if the Indemnitee shall have
determined that in its judgment, exercised in its sole discretion, neither
such participation nor the separation of issues will adversely affect the
Indemnitee. The Indemnitee will not settle a contest that results in a final
determination without consent of the Lessee, unless the Indemnitee waives its
right to indemnification with respect to such contest and any related contest.
Notwithstanding the preceding sentences of this Section 8.04, such Indemnitee
shall not be required to take or continue any action unless the Lessee shall
have (i) agreed in writing to pay and shall pay the Indemnitee on a current
basis and on an After-Tax Basis the after-tax cost of all reasonable fees and
expenses (including reasonable attorneys' fees and accountants' fees) which
such Indemnitee may incur as a result of contesting such Taxes, (ii) made all
payments and indemnities (other than contested payments and indemnities) then
due to the Indemnitee hereunder or with respect to any of the transactions
contemplated by or under the Operative Agreements and (iii) acknowledged in
writing the Lessee's obligation to such Indemnitee pursuant to this Agreement
to the extent that the contest is not successful, unless it is reasonably
clear from the resolution of the contest that an exclusion set forth in
Section 8.01(b) hereof applies. In no event shall such Indemnitee be required
or the Lessee be permitted to contest pursuant to this Section 8.04 the
imposition of any Tax for which the Lessee is obligated to indemnify any
Indemnitee hereunder unless (i) such Indemnitee shall have received, at the
Lessee's expense, an opinion of its tax counsel, such counsel to be reasonably
satisfactory to the Lessee ("Tax Counsel"), to the effect that there exists a
reasonable basis for contesting such claim, (ii) such Indemnitee (and, if such
Indemnitee is not the Owner Participant, the Owner Participant and such
Indemnitee) shall have determined that such contest will not result in any
material risk of loss, sale or forfeiture of, or the creation of a Lien (other
than Lessor's Liens) on, the Aircraft or any part thereof or interest thereon
or in a risk of criminal liability, or adversely affect the Trust Indenture
Estate, (iii) if a Payment Default, Bankruptcy Default or an Event of Default
shall have occurred and be continuing, the Lessee shall have provided security
for its obligations hereunder reasonably satisfactory to the Indemnitee, (iv)
if such contest shall be conducted in a manner requiring payment of the claim
in advance, the Lessee shall have advanced sufficient funds, on an interest
free basis, to make the payment required, and agreed to indemnify the
Indemnitee against any additional net adverse tax consequences on an After-Tax
Basis to such Indemnitee of such advance, (v) the issue shall not be the same
as an issue previously contested hereunder and decided adversely, unless the
Indemnitee shall have received at the Lessee's sole expense, a written
opinion, in form and substance reasonably satisfactory to such Indemnitee, of
Tax Counsel to the effect that the applicable circumstances or law has changed
and that in light thereof, there is substantial authority for contesting such
claim and (vi) the amount of the indemnity payments the Lessee would be
required to make with respect to such adjustment, when aggregated with similar
adjustments that could be raised in other taxable years of such Indemnitee
exceeds $50,000; provided, that in the event that such Indemnitee is not
required under this paragraph to contest any Tax liability for which the
Lessee is obligated to indemnify any Indemnitee, the Lessee may contest such
Tax liability in the name of the Lessee, if permitted by law. The Lessee may
appeal or require the Indemnitee to appeal any judicial decision provided the
foregoing requirements of this Section 8.04 are met and the Indemnitee shall
have received, at the Lessee's expense, an opinion of Tax Counsel, to the
effect that there is substantial authority for such appeal.
Nothing contained in this Section 8.04 shall require any
Indemnitee to contest or continue to contest, or permit Lessee to contest,
a claim which such Indemnitee would otherwise be required to contest
pursuant to this Section 8.04, if such Indemnitee shall waive payment by
Lessee of any amount that might otherwise be payable by Lessee under this
Article 8 in connection with such claim.
Section 8.05. Refunds. Upon receipt by an Indemnitee of a refund of
all or any part of any Taxes which the Lessee shall have paid for such
Indemnitee or for which the Lessee shall have reimbursed or indemnified such
Indemnitee, and provided there shall not have occurred and be continuing any
Payment Default, Bankruptcy Default or Event of Default by the Lessee
hereunder or under the Lease (in which case payment shall not be made to the
Lessee until such Payment Default, Bankruptcy Default or Event of Default
shall have been cured), such Indemnitee shall pay to the Lessee an amount
equal to the amount of such refund less (x) any expenses not previously
reimbursed, (y) all payments then due to such Indemnitee under this Article
8 and (z) Taxes imposed with respect to the accrual or receipt thereof,
including interest received attributable thereto, plus any tax benefit
actually realized by such Indemnitee as a result of any payment by such
Indemnitee made pursuant to this sentence; provided, however, that such amount
shall not be payable (a) before such time as the Lessee shall have made all
payments or indemnities then due and payable to such Indemnitee under this
Article 8 and (b) to the extent that the amount of such payment would exceed
(i) the amount of all prior payments by the Lessee to such Indemnitee pursuant
to this Article 8 less (ii) the amount of all prior payments by such
Indemnitee to the Lessee pursuant to this Article 8.
Any subsequent loss of such refund or tax benefit shall be treated as
a Tax subject to indemnification under the provisions of this Article 8 (in
the case of any such tax benefit, without regard to Section 8.01(b) hereof).
Section 8.06. Lessee's Reports. In case any report or return is
required to be made with respect to any Taxes against which the Lessee is or
may be obligated to indemnify the Indemnitees under this Article 8, the Lessee
shall make such report or return, except for any such report or return that
the Indemnitee has notified the Lessee that it intends to file, in such manner
as will show the ownership of the Aircraft in the Owner Trustee and shall send
a copy of the applicable portions of such report or return to the Indemnitee
and the Owner Trustee or will notify the Indemnitee of such requirement and
make such report or return in such manner as shall be satisfactory to such
Indemnitee and the Owner Trustee. The Lessee will provide such information
reasonably available to the Lessee as the Indemnitee may reasonably require
from the Lessee to enable the Indemnitee to fulfill its tax filing
requirements with respect to the transactions contemplated by the Operative
Agreements (without duplication of the requirements of Section 3 of the Tax
Indemnity Agreement) and any audit information request arising from any such
filing. The Indemnitee will provide such information reasonably available to
it as the Lessee may reasonably require from such Indemnitee to enable the
Lessee to fulfill its tax filing requirements with respect to the transactions
contemplated by the Operative Agreements and any audit information request
arising from such filing; provided that in no event shall any Indemnitee be
required to provide copies of any of its tax returns or other confidential
information. The Lessee shall hold the Indemnitee harmless on an After-Tax
Basis from and against any liabilities, including penalties, additions to tax,
fines and interest, imposed upon or incurred by such Indemnitee to the extent
directly attributable to any insufficiency or inaccuracy in any return,
statement, or report prepared by the Lessee or information supplied by the
Lessee, or directly attributable to the Lessee's failure to supply reasonably
available information to such Indemnitee as required by this Section 8.06.
Section 8.07. Survival of Obligations. The representations,
warranties, indemnities and agreements of the Lessee provided for in this
Article 8 and the Lessee's obligations under any and all of them shall survive
the expiration or other termination of the Operative Agreements.
Section 8.08. Payment of Taxes. With respect to any Tax otherwise
indemnifiable hereunder by the Lessee and applicable to the Aircraft,
Airframe, any Engine or Parts, to the extent permitted by the applicable
federal, state, local or foreign law, the Lessee shall pay such tax directly
to the relevant Taxing authority and file any returns or reports required with
respect thereto to the extent legally entitled to do so in its own name;
provided, however, that the Lessee shall not make any statements or take any
action which would indicate that the Lessee or any Person other than the Owner
Trustee or Owner Participant is the owner of the Aircraft, the Airframe, any
Engine or any Part or which would otherwise be inconsistent with the terms of
the Lease or the Tax Indemnity Agreement and the position thereunder of the
Owner Trustee and the Owner Participant. Copies of such returns or reports,
together with evidence of payment of any tax due, shall be sent by the Lessee
to the Owner Participant within thirty (30) days after the date of each
payment by the Lessee of any Tax.
Section 8.09. Reimbursements by Indemnitees Generally. To the
extent the Lessee is required to pay or withhold any Tax imposed on or with
respect to an Indemnitee in respect of the transactions contemplated by the
Operative Agreements, which Tax is not otherwise the responsibility of the
Lessee under the Operative Agreements, or any other written agreements between
the Lessee and such Indemnitee, then such Indemnitee shall pay to the Lessee
within 30 days of the Lessee's demand therefor an amount which equals the
amount actually paid by the Lessee with respect to such Taxes.
Section 8.10. Special Indemnity. Notwithstanding anything in this
Article 8 to the contrary, the Lessee shall hold the Owner Participant
harmless on an After-Tax Basis from any Taxes or losses arising from or in
connection with the transactions contemplated by Section 17.02 hereof.
ARTICLE 9
GENERAL INDEMNITY
Section 9.01. Generally. (a) The Lessee agrees to indemnify each
Indemnitee against and agrees to protect, defend, save and keep harmless each
Indemnitee from any and all liabilities, obligations, losses, damages,
penalties, claims, actions, suits, costs, disbursements and expenses
(including legal fees and expenses and all costs and expenses relating to
amendments, supplements, adjustments, consents, refinancings and waivers under
the Operative Agreements except as otherwise provided in Section 10.01(c)(i)
or Article 15 hereof) of every kind and nature, including without limitation
Make-Whole Premium (unless excluded pursuant to Section 3.03 of the Lease)
(whether or not any of the transactions contemplated by this Agreement are
consummated) (individually, an "Expense," collectively, "Expenses"), which
may be imposed on, incurred or suffered by or asserted against any Indemnitee,
in any way relating to, based on or arising out of:
(i) this Agreement (including, without limitation, the execution,
delivery and performance hereof by the Owner Participant prior to the
delivery of the Aircraft), the Lease, the Indenture, the Trust Agreement,
the Intercreditor Agreement, the Liquidity Facilities, the Pass Through
Agreement, AVSA's FAA Bill of Sale, AVSA's Warranty Bill of Sale or any
other Operative Agreement or any other document entered into in connection
herewith or any sublease or transfer or any transactions contemplated
hereby or thereby;
(ii) the operation, possession, use, non-use, maintenance, storage,
overhaul, delivery, non-delivery, control, repair or testing of the
Aircraft, Airframe, or any Engine or any engine used in connection with the
Airframe, or any part thereof by the Lessee, any sublessee or any other
Person whatsoever, whether or not such operation, possession, use, non-use,
maintenance, storage, overhaul, delivery, non-delivery, control, repair or
testing is in compliance with the terms of the Lease, including without
limitation, claims for death, personal injury or property damage or other
loss or harm to any Person whatsoever, including, without limitation, any
passengers, shippers or other Persons wherever located, and claims relating
to any laws, rules or regulations, including, without limitation,
environmental control, noise and pollution laws, rules or regulation;
(iii) the manufacture, design, sale, return, purchase, acceptance,
rejection, delivery, non-delivery, condition, repair, modification,
servicing, rebuilding, airworthiness, registration, reregistration, import,
export, performance, non-performance, lease, sublease, transfer,
merchantability, fitness for use, alteration, substitution or replacement
of any Airframe, Engine, or Part under the Lease, the Purchase Agreement,
the Purchase Agreement Assignment, the GTA or the Engine Warranty
Assignment or other transfer of use or possession, or other disposition of
the Aircraft, the Airframe, any Engine or any Part including, without
limitation, latent and other defects, whether or not discoverable, strict
tort liability, and any claims for patent, trademark or copyright
infringement;
(iv) any breach of or failure to perform or observe, or any other
non-compliance with, any condition, covenant or agreement to be performed,
or other obligations of the Lessee under any of the Operative Agreements,
or the falsity or inaccuracy of any representation or warranty of the
Lessee in any of the Operative Agreements (other than representations and
warranties in the Tax Indemnity Agreement);
(v) the Collateral Account and the Liquid Collateral;
(vi) the enforcement of the terms of the Operative Agreements and
the administration of the Trust Indenture Estate; and
(vii) the offer, issuance, sale or delivery of any Certificate or any
Pass Through Certificate, or any refunding or refinancing thereof, or
interest in the Lessor's Estate or the Trust Agreement or any similar
interest or in any way relating to or arising out of the Trust Agreement
and the Lessor's Estate, the Indenture or the Trust Indenture Estate
(including, without limitation, any claim arising out of the Securities Act
of 1933, as amended, the Securities Exchange Act of 1934, as amended, or
any other federal or state statute, law or regulation, or at common law or
otherwise relating to securities), or the action or inaction of the Owner
Trustee or Indenture Trustee as trustees, in the manner contemplated by
this Agreement, the Indenture, the Indenture and Security Agreement
Supplement or the Trust Agreement and in the case of the Owner Participant,
its obligations arising under Section 6.01 of the Trust Agreement.
The foregoing indemnity by the Lessee is intended to include and cover, but is
not limited to, any Expense to which the Indemnitees may be subject as a
result of their respective ownership or leasing of any interest in or holding
of any Lien on the Aircraft, Airframe, any Engine or Part during the Term,
whether or not in the Lessee's possession or control, insofar as such Expense
relates to any activity or event whatsoever involving such item while it is
under lease to the Lessee (or after termination of the Lease in connection
with the exercise of remedies thereunder to the extent that such Expense is
attributable to the transactions contemplated hereby and by the other
Operative Agreements), and such Expense does not fall within any of the
exceptions listed in Section 9.01(b) hereof.
(b) Exceptions. The indemnity provided for in Section 9.01(a) shall
not extend to any Expense of any Indemnitee to the extent it:
(i) would not have occurred but for the willful misconduct or gross
negligence of such Indemnitee;
(ii) after the Delivery Date, is in respect of the Aircraft, and is
attributable to acts or events which occur after the Aircraft is no longer
part of the Lessor's Estate or, if the Aircraft remains a part of the
Lessor's Estate, after the expiration of the Term (unless the Aircraft is
being returned at such time, in which case after return of physical
possession; provided that if the Lease has been terminated pursuant to
Article 17 thereof, the indemnity provided in Section 9.01(a) hereof shall
survive for so long as Lessor or the Indenture Trustee shall be exercising
remedies under such Article 17), or to acts or events which occur after
return of possession of the Aircraft by the Lessee in accordance with the
provisions of the Lease (subject to the foregoing proviso if the Lessor has
terminated the Lease pursuant to Article 17 of the Lease) but in any such
case only to the extent not fairly attributable to acts or omissions of the
Lessee prior to expiration of the Term, including without limitation the
Lessee's failure to fully discharge all of its obligations under the Lease
or the other Operative Agreements;
(iii) is a Tax, whether or not the Lessee is required to indemnify
therefor pursuant to Article 8 hereof or pursuant to the Tax Indemnity
Agreement;
(iv) is a cost or expense required to be paid by the Owner
Participant or its permitted transferees (and not by the Lessee) pursuant
to this Agreement or any other Operative Agreement and for which the Lessee
is not otherwise obligated to reimburse the Owner Participant, directly or
indirectly pursuant to the terms of this Agreement or such other Operative
Agreement;
(v) would not have been incurred by such Indemnitee if such
Indemnitee had not been in breach of its representations or warranties, or
had not defaulted in the observance and performance of the terms and
provisions required to be observed and performed by it, in this Agreement,
the Purchase Agreement Assignment, the Lease, the Indenture, the Trust
Agreement or any other Operative Agreement to which it is a party unless
such breach or default shall be a result of the breach or default by the
Lessee of any of its obligations under the Operative Agreements or by
another Indemnitee of any of the foregoing;
(vi) [reserved];
(vii) is, in the case of the Owner Participant, Lessor's Liens to the
extent attributable to the Owner Participant; in the case of the Owner
Trustee, Lessor's Liens to the extent attributable to the Owner Trustee; in
the case of SSB, Lessor's Liens to the extent attributable to SSB; and in
the case of the Indenture Trustee, Indenture Trustee's Liens;
(viii) is, in the case of the Owner Participant or the Owner Trustee,
attributable to the offer or sale by such Indemnitee after the Certificate
Closing Date of any interest in the Aircraft, the Lessor's Estate or the
Trust Agreement or any similar interest (including an offer or sale
resulting from bankruptcy or other proceedings for the relief of debtors in
which such Indemnitee is the debtor), unless in each case such offer or
sale shall occur (x) in connection with a Refinancing, (y) as a result of
the occurrence of an Event of Default provided that either the Lease has
been declared in default or the transfer is pursuant to the exercise of
remedies under Article 17 of the Lease or (z) in connection with the
Lessee's exercise of its early termination option under Article 10 of the
Lease or its purchase options under Article 4 of the Lease or in connection
with Article 11 of the Lease;
(ix) is an Expense arising under or in connection with any
prohibited transaction, within the meaning of Section 406 of ERISA or
Section 4975(c)(1) of the Code ("Prohibited Transaction"); provided,
however, that in the event any prohibited transaction arises which is
not exempt under any class prohibited transaction exemption or any
individual or statutory prohibited transaction exemption (individually
or collectively, a "PTE") then the indemnity provided for herein shall
extend to any Expenses incurred by the Owner Participant (or any
Affiliate thereof) as the result of any Prohibited Transaction arising
out of the purchase or holding of any Certificates by an employee
benefit plan subject to Title I of ERISA or by a plan subject to Section
4975 of the Code (individually or collectively, an "ERISA Plan") with
respect to which the Owner Participant is a party in interest, within
the meaning of Section 3(14) of ERISA, or a disqualified person,within
the meaning of Section 4975 of the Code, except, however, that such
Indemnity shall not extend to any Expenses incurred by the Owner
Participant (or any Affiliate thereof) as the result of any Prohibited
Transaction occurring with respect to the purchase or holding of any
Certificates (A) over which purchase or holding the Owner Participant
(or an Affiliate thereof) has discretion or control (other than in the
capacity of a custodian, directed trustee or other similar
nondiscretionary capacity), or (B) by an ERISA Plan with respect to
which the Owner Participant (or any Affiliate thereof) is a "plan
sponsor" within the meaning of Section 3(16)(B) of ERISA.
Section 9.02. After-Tax Basis. The amount which the Lessee shall be
required to pay with respect to any Expense indemnified against under Section
9.01 shall be an amount sufficient to restore the Indemnitee, on an After-Tax
Basis, to the same position such party would have been in had such Expense not
been incurred. If any Indemnitee actually realizes a permanent Tax benefit by
reason of the payment of such Expense paid or indemnified against by the
Lessee which was not considered in the computation thereof, such Indemnitee
shall promptly pay to the Lessee, but not before the Lessee shall have made
all payments theretofore due such Indemnitee under this Agreement, the Tax
Indemnity Agreement and any other Operative Agreement, an amount equal to the
lesser of (x) the sum of such Tax benefit plus any other permanent Tax benefit
actually realized by such Indemnitee as the result of any payment made by such
Indemnitee pursuant to this sentence and (y) the amount of such payment
pursuant to this Section 9.02 by the Lessee to such Indemnitee plus the amount
of any other payments by the Lessee to such Indemnitee theretofore made
pursuant to this Section 9.02 less the amount of any payments by such
Indemnitee to the Lessee theretofore made pursuant to this Section 9.02 (and
the excess, if any, of the amount described in clause (x) above over the
amount described in clause (y) above shall be carried forward and applied to
reduce pro tanto any subsequent obligations of the Lessee to make payments to
such Indemnitee pursuant to this Section 9.02), it being intended that no
Indemnitee should realize a net Tax benefit pursuant to this Section 9.02
unless the Lessee shall first have been made whole for any payments by it to
such Indemnitee pursuant to this Section 9.02; provided, however, that
notwithstanding the foregoing portions of this sentence, such Indemnitee shall
not be obligated to make any payment to the Lessee pursuant to this sentence
so long as an Event of Default shall have occurred and be continuing. Any
Taxes that are imposed on any Indemnitee as a result of the disallowance or
reduction of such Tax benefit referred to in the next preceding sentence in a
taxable year subsequent to the year of allowance and utilization by such
Indemnitee (including the expiration of any tax credit carryovers or
carrybacks of such Indemnitee that would not otherwise have expired) shall be
indemnifiable pursuant to the provisions of Section 8.01 hereof without regard
to Section 8.01(b) hereof.
Section 9.03. Subrogation. Upon the payment in full of any
indemnity pursuant to this Article 9 by the Lessee (but not earlier), the
Lessee shall be subrogated to any right of the Indemnitee, other than with
respect to any of such Indemnitee's insurance policies or in connection
with any indemnity claim the Person indemnified may have against any other
Indemnitee in respect of the matter against which such indemnity has been
made.
Section 9.04. Notice and Payment. Each Indemnitee and the Lessee
shall give prompt written notice one to the other of any liability of which
such party has received notice for which the Lessee is, or may be, liable
under this Article 9; provided, however, that failure to give such notice
shall not terminate any of the rights of the Indemnitees under this Article 9,
except (with respect to such Indemnitee) to the extent that the Lessee has
been materially prejudiced by the failure to provide such notice. Unless
otherwise provided in the Operative Agreements, any amount payable to an
Indemnitee pursuant to this Article 9 shall be paid within 30 days after
receipt of a written demand therefor from such Indemnitee accompanied by a
written statement describing in reasonable detail the basis for such indemnity
and the computation of the amount so payable.
Section 9.05. Refunds. If any Indemnitee shall obtain a recovery of
all or any part of any amount which the Lessee shall have paid to such
Indemnitee or for which the Lessee shall have reimbursed such Indemnitee under
this Article 9, and provided there shall not have occurred a Payment Default
or an Event of Default (in which case payment shall not be made to the Lessee
until such Payment Default or Event of Default shall have been cured) such
Indemnitee shall pay to the Lessee the amount of any such recovery, including
interest received with respect to the recovery, net of any Taxes paid or
payable as a result of the receipt of the recovery and interest, plus any net
additional permanent income tax benefits actually realized by Indemnitee as
the result of any payment made pursuant to this sentence less any reasonable
costs and expense of any Indemnitee not reimbursed by the Lessee; provided,
however, that such amount shall not be payable (a) before such time as the
Lessee shall have made all payments or indemnities then due and payable to
such Indemnitee under this Article 9 or (b) to the extent that the amount of
such payment would exceed the amount of all prior payments by the Lessee to
such Indemnitee pursuant to this Article 9, less the amount of all prior
payments by such Indemnitee to the Lessee pursuant to this Article 9. Any
subsequent loss of such recovery or tax benefit shall be subject to
indemnification under Article 8 or this Article 9, as the case may be, but
without regard to Section 8.01(b) hereof, other than Section 8.01(b)(v)
hereof.
Section 9.06. Defense of Claims. The Lessee or its insurers shall
have the right (in each such case at the Lessee's sole expense) to investigate
or, provided that (i) the Lessee or its insurers shall not reserve the right
to dispute liability with respect to any insurance policies pursuant to which
coverage is sought, (ii) in the case of the Lessee, no Payment Default or
Event of Default shall have occurred and be continuing or shall arise at any
time during the claim and (iii) the Lessee shall have first acknowledged in
writing to such Indemnitee the Lessee's obligation to indemnify such
Indemnitee hereunder in respect of such claim, defend any such claim
covered by insurance for which indemnification is sought pursuant to this
Article 9 and each Indemnitee shall cooperate with the Lessee or its
insurers with respect thereto, and provided, further, the Lessee shall not
be entitled to assume and control the defense of any such claim if and to
the extent (A) such Indemnitee reasonably objects to such control on the
ground that an actual or potential material conflict of interest exists
where it is advisable for such Indemnitee to be represented by separate
counsel or on the grounds that such proceeding involves the potential
imposition of criminal liability on such Indemnitee or (B) such proceeding
will involve any material danger of the sale, forfeiture or loss of, or the
creation of any Lien on the Aircraft or the Trust Estate (unless the Lessee
posts a bond or other security reasonably acceptable in form and substance
to such Indemnitee) or involve any material risk of civil liability to such
Indemnitee for which it is not indemnified hereunder. Subject to the
immediately foregoing sentence, where the Lessee or the insurers under a
policy of insurance maintained by the Lessee undertake the defense of an
Indemnitee with respect to such a claim, no additional legal fees or
expenses of such Indemnitee in connection with the defense of such claim
shall be indemnified hereunder unless the fees or expenses were incurred at
the written request of the Lessee or such insurers. Subject to the
requirement of any policy of insurance applicable to a claim, an Indemnitee
may participate at its own expense at any judicial proceeding controlled by
the Lessee or its insurers pursuant to the preceding provisions, to the
extent that such party's participation does not, in the opinion of the
independent counsel appointed by the Lessee or its insurers to conduct such
proceedings, interfere with such control; and such participation shall not
constitute a waiver of the indemnification provided in this Section 9.06.
No Indemnitee shall enter into any settlement or other compromise with
respect to any claim described in this Section 9.06 without the prior
written consent of the Lessee, which consent shall not unreasonably be
withheld or delayed, unless such Indemnitee waives its right to be
indemnified under this Article 9 with respect to such claim. The Lessee
shall not enter into any settlement or compromise which the Lessee has not
agreed to discharge or with respect to which the Lessee has not agreed to
indemnify such Indemnitee to such Indemnitee's satisfaction or which admits
any criminal violation, gross negligence or willful misconduct on the part
of any Indemnitee without the prior written consent of such Indemnitee.
Section 9.07. Survival of Obligations. The representations,
warranties, indemnities and agreements of the Lessee provided for in this
Article 9 and the Lessee's obligations under any and all of them shall survive
the expiration or other termination of this Agreement, the Tax Indemnity
Agreement, the Trust Agreement, the Indenture, the Purchase Agreement
Assignment, the Engine Warranty Assignment, the Lease and the other Operative
Agreements but, as to such indemnities after the expiration or other
termination of the Lease, only with respect to losses, liabilities,
obligations, damages, penalties, claims, actions, suits, costs, Expenses and
disbursements caused by events occurring or existing (or fairly attributable
to the Lessee's acts or omissions) prior to such termination or expiration or
incurred in the process of (i) the return or disposition of the Aircraft under
Article 12 or Article 17 of the Lease, or (ii) the termination of the Lease or
the Indenture or, if later, the return of the Aircraft.
Section 9.08. Effect of Other Indemnities. The Lessee's obligations
under the indemnities provided for in this Agreement shall be those of a
primary obligor whether or not the Person indemnified shall also be
indemnified with respect to the same matter under the terms of this Agreement,
the Lease, the Indenture, the Trust Agreement, or any other document or
instrument, and the Person seeking indemnification from the Lessee pursuant to
any provision of this Agreement may proceed directly against the Lessee
without first seeking to enforce any other right of indemnification.
Section 9.09. Interest. The Lessee will pay to each Indemnitee on
demand, to the extent permitted by applicable law, interest on any amount of
indemnity not paid when due pursuant to this Article 9 until the same shall be
paid, at the Past Due Rate.
Section 9.10. Special Indemnity. Notwithstanding anything in this
Article 9 to the contrary, the Lessee shall hold the Owner Participant
harmless on an After-Tax Basis from any Taxes or losses arising from or in
connection with the transactions contemplated by Section 17.02 hereof.
ARTICLE 10
TRANSACTION COSTS
Section 10.01. Transaction Costs and Other Costs. (a) Transaction
Costs. The Owner Participant shall pay (or reimburse the Lessee if the Lessee
shall have previously made such payment) all fees and expenses of the
following persons relating to the public offering of the Pass Through
Certificates contemplated by the Underwriting Agreement and related to the
transactions contemplated hereby on the Certificate Closing Date and the
Delivery Date: (i) the fees and expenses of counsel for the Owner Participant;
(ii) the fees and expenses of the transaction documentation counsel for the
Lessee and counsel for the Owner Trustee, the Indenture Trustee, the
Subordination Agent, the Pass Through Trustee, each Liquidity Provider and the
Underwriters (other than those fees, expenses and disbursements payable by the
Underwriters pursuant to the Underwriting Agreement); (iii) the fees and
expenses of Daugherty, Fowler & Peregrin; (iv) any initial fees and expenses
of the Pass Through Trustee and each Liquidity Provider and the fees and
expenses of the Owner Trustee, the Subordination Agent and the Indenture
Trustee; (v) any compensation, commissions and discounts payable to the
Underwriters pursuant to the Underwriting Agreement; (vi) the fees, if any,
incurred in printing the Pass Through Certificates; (vii) the fees and
expenses incurred in connection with printing any amendment to the
Registration Statement on Form S-3 bearing Registration No. 333-07691,
printing any Preliminary Prospectus or Prospectus (as such terms are defined
in the Underwriting Agreement) for the offering of the Pass Through
Certificates; (viii) the fees and expenses of Arthur Andersen LLP; (ix) the
fees and expenses of Moody's and S&P; (x) the fees and expenses (including
computer time-sharing charges) of First Chicago Leasing Corporation; (xi) the
reasonable out-of-pocket expenses of the Owner Participant, including, without
limitation, any amounts paid in connection with any appraisal report prepared
on behalf of the Owner Participant; (xii) reimbursement to the Owner
Participant, the Owner Participant Guarantor, the Owner Trustee, the Indenture
Trustee, the Subordination Agent, each Liquidity Provider and the Pass Through
Trustee for any and all fees, expenses and disbursements of the character
referred to above or otherwise incurred in connection with the negotiation,
preparation, execution and delivery, filing and recording of the Operative
Agreements and the documents contemplated thereby, including, without
limitation, travel expenses and disbursements which shall have been paid by
such party; (xiii) printing and duplicating expenses and all fees, taxes and
other charges payable in connection with the recording or filing on or
before the Delivery Date of the instruments described in this Agreement;
(xiv) initial fees, initial expenses, initial disbursements and the initial
costs of distributing the Certificates (but not the continuing fees,
expenses, disbursements and costs of distribution) of SSB, as lessor under
the Lease and as Owner Trustee under the Trust Agreement and with respect
to the administration of the Lease and the Lessor's Estate, of the
Indenture Trustee as trustee under the Indenture with respect to the
administration of the Trust Indenture Estate and of the Subordination Agent
acting under the Intercreditor Agreement; and (xv) any other amounts
approved by the Lessee and the Owner Participant. The fees and expenses
described in clauses (ii) through (x) of this paragraph shall be allocable
to the Owner Participant under this Agreement (1) to the extent incurred
specifically with respect to the Owner Participant, and (2) to the extent
such fees and expenses are incurred but are not specifically attributable
to the Owner Participant, in the proportion that the principal amount of
the Certificates bears to the total amount of the Pass Through
Certificates.
The Owner Participant, the Owner Trustee and the Lessee acknowledge
that the percentages for Basic Rent, Stipulated Loss Value and Termination
Value set forth in the Lease have been prepared assuming the aggregate amount
payable by the Owner Participant pursuant to the preceding paragraph is 1.15%
of the Purchase Price (the "Estimated Expense Amount"). Transaction Costs
shall be paid in the manner provided in Section 3.04 hereof.
(b) Continuing Expenses. The continuing fees, expenses and
disbursements (including reasonable counsel fees and expenses) of the entity
acting as Owner Trustee, as lessor under the Lease and as Owner Trustee under
the Trust Agreement with respect to the administration of the Lease and the
Lessor's Estate and the continuing fees, expenses and disbursements (including
reasonable counsel fees and expenses and initial fees relating to the
establishment of any replacement trustee) of the Indenture Trustee, as trustee
under the Indenture with respect to the administration of the Trust Indenture
Estate, the continuing fees, expenses and disbursements (including reasonable
counsel fees and initial fees relating to the establishment of a replacement
trustee) of the Pass Through Trustee and the Subordination Agent and the
continuing fees, expenses and disbursements (including reasonable counsel fees
and initial fees relating to the establishment of a replacement liquidity
provider) of the Liquidity Providers under each Liquidity Facility shall be
paid as Supplemental Rent by the Lessee, including without limitation any
amounts payable to the Indenture Trustee or on account of requests by the
Indenture Trustee for indemnification under Article XI of the Indenture.
(c) Amendments, Supplements and Appraisal. Without limitation of
the foregoing, the Lessee agrees:
(i) to pay as Supplemental Rent to the Owner Trustee, the Owner
Participant, Owner Participant Guaranty, the Indenture Trustee, the
Subordination Agent, the Liquidity Providers and the Pass Through Trustee
all costs and expenses (including reasonable legal fees and expenses)
incurred by any of them in connection with (a) any Default or Event of
Default and any enforcement or collection proceedings resulting therefrom,
or (b) the enforcement of the obligations of the Lessee hereunder or under
the other Operative Agreements, including, without limitation, the entering
into or giving or withholding of any amendments or supplements or waivers
or consents (whether or not consummated), including without limitation, any
amendment, supplement, waiver or consent resulting from any work-out,
restructuring or similar proceeding relating to the performance or
nonperformance by the Lessee of its obligations under the Operative
Agreements or (c) any amendment, supplement, waiver or consent (whether or
not entered into) under this Agreement, the Lease, the Indenture, the
Certificates, the Tax Indemnity Agreement, the Purchase Agreement
Assignment or any other Operative Agreement or document or instrument
delivered pursuant to any of them, which amendment, supplement, waiver or
consent is required by any provision of any Operative Agreement (including
any adjustment pursuant to Section 3.04 of the Lease) or is requested by
the Lessee or necessitated by the action or inaction of the Lessee;
provided, however, that the Lessee shall not be responsible for fees and
expenses incurred in connection with the offer, sale or other transfer
(whether pursuant to Section 7.03(d) hereof or otherwise) by the Owner
Participant after the Certificate Closing Date of any interest in the
Aircraft, the Lessor's Estate, the Beneficial Interest or the Trust
Agreement or any similar interest (and the Owner Participant shall be
responsible for all such fees and expenses), unless such offer, sale or
transfer shall occur (A) after the Lease has been declared in default or if
the transfer is pursuant to the exercise of remedies under Article 17 of
the Lease or (B) in connection with the termination of the Lease or action
or direction of the Lessee pursuant to Section 4.02, Article 10 or Article
11 of the Lease; and
(ii) to pay the fees, costs and expenses of all appraisers involved
in an independent appraisal of the Aircraft to the extent required under
Section 4.03 of the Lease.
ARTICLE 11
SUCCESSOR OWNER TRUSTEE
Section 11.01. Appointment of Successor Owner Trustee. (a)
Resignation and Removal. The Owner Trustee or any successor Owner Trustee may
resign or may be removed by the Owner Participant, and a successor Owner
Trustee may be appointed and a Person may become Owner Trustee under the Trust
Agreement only in accordance with the provisions of Section 3.11 of the Trust
Agreement and the provisions of paragraphs (b) and (c) of this Section 11.01.
(b) Conditions to Appointment. The appointment in any manner of a
successor Owner Trustee pursuant to Section 3.11 of the Trust Agreement shall
be subject to the following conditions:
(i) Such successor Owner Trustee shall be a Citizen of the United
States;
(ii) Such successor Owner Trustee shall be a bank or a trust company
having combined capital, surplus and undivided profits of at least
$100,000,000 or a bank or trust company fully guaranteed by a direct or
indirect parent thereof having a combined capital, surplus and undivided
profits of at least $100,000,000;
(iii) Such appointment shall not violate any provisions of the
Transportation Code or any applicable rule or regulation of the applicable
regulatory agency or body of any other jurisdiction in which the Aircraft
may then be registered or create a relationship which would be in violation
of the Transportation Code or any applicable rule or regulation of the
applicable regulatory agency or body of any other jurisdiction in which the
Aircraft may then be registered;
(iv) Such successor Owner Trustee shall enter into an agreement
or agreements, in form and substance reasonably satisfactory to the
Lessee, the Owner Participant, the Pass Through Trustee and the
Indenture Trustee whereby such successor Owner Trustee confirms that it
shall be deemed a party to this Agreement, the Trust Agreement, the
Lease, the Lease Supplement, the Purchase Agreement Assignment, the
Engine Warranty Assignment, the Indenture, the Indenture Supplement and
any other Operative Agreement to which the Owner Trustee is a party and
agrees to be bound by all the terms of such documents applicable to the
Owner Trustee and makes the representations and warranties contained in
Section 7.04 hereof (except that it may be duly incorporated, validly
existing and in good standing under the laws of the United States of
America or any State thereof); and
(v) All filings of Uniform Commercial Code financing and continuation
statements, filings in accordance with the Transportation Code and
amendments thereto shall be made and all further actions taken in
connection with such appointment as may be necessary in connection with
maintaining the validity, perfection and priority of the Lien of the
Indenture and the valid and continued registration of the Aircraft in
accordance with the Transportation Code.
(c) Appointment. For so long as the Aircraft remains registered
under the Transportation Code, the Owner Participant agrees to appoint
promptly a successor Owner Trustee meeting the requirements of Section
11.01(b) hereof in the event the Owner Participant has knowledge that the
Owner Trustee at any time shall not be a Citizen of the United States.
ARTICLE 12
LIABILITIES AND INTERESTS OF THE OWNER PARTICIPANT AND HOLDERS
Section 12.01. Liabilities of the Owner Participant. The Owner
Participant shall have no obligation or duty to the Lessee or to any Holder
with respect to the transactions contemplated by this Agreement, except those
obligations or duties expressly set forth in this Agreement, the Indenture,
the Trust Agreement, the Tax Indemnity Agreement, AVSA's FAA Bill of Sale,
AVSA's Warranty Bill of Sale, the Lease or any other Operative Agreement to
which the Owner Participant is a party and the Owner Participant shall not be
liable for the performance by any party hereto of such other party's
obligations or duties hereunder. Under no circumstances shall the Owner
Participant as such be liable to the Lessee, nor shall the Owner
Participant be liable to any Holder, for any action or inaction on the part
of the Owner Trustee or the Indenture Trustee in connection with this
Agreement, the Indenture, the Lease, the Trust Agreement, the Purchase
Agreement Assignment, the Engine Warranty Assignment, any other Operative
Agreement, the ownership of the Aircraft, the administration of the
Lessor's Estate or the Trust Indenture Estate or otherwise, whether or not
such action or inaction is caused by the willful misconduct or gross
negligence of the Owner Trustee or the Indenture Trustee.
Section 12.02. Interest of Holders of Certificates. A Holder of a
Certificate shall have no further interest in, or other right with respect to,
the Trust Indenture Estate when and if the principal and interest on all
Certificates held by such Holder and all other sums payable to such Holder
under this Agreement, under the Indenture and under such Certificates shall
have been paid in full.
ARTICLE 13
OTHER DOCUMENTS
Section 13.01. Consent of Lessee to Other Documents. The Lessee
hereby consents in all respects to the execution and delivery of the
Indenture, the Intercreditor Agreement and the Liquidity Facilities and to all
of the terms of said documents, and the Lessee acknowledges receipt of an
executed counterpart of such documents; it being agreed that such consent
shall not be construed to require the Lessee's consent to any future
supplement to, or amendment, waiver or modification of the terms of the
Indenture, the Intercreditor Agreement or the Liquidity Facilities or the
Certificates, except that prior to the occurrence and continuance of an Event
of Default, no section of the Indenture, the Trust Agreement, the
Intercreditor Agreement or the Liquidity Facilities shall be amended or
modified in any manner materially adverse to the Lessee without its consent.
Section 13.02. Further Assurances. The Lessee hereby confirms to
the Owner Participant its covenants set forth in and obligations under the
Lease. The Lessee agrees that, except as otherwise provided in the
Indenture, the Owner Trustee may not enter into any amendment, modification
or supplement of, or give any waiver or consent with respect to, or approve
any matter or document as being satisfactory under the Lease without the
prior consent of the Indenture Trustee and the Owner Participant and that,
except as otherwise provided in the Indenture, upon an Indenture Event of
Default, the Indenture Trustee may act as the Lessor under the Lease to the
exclusion of the Owner Trustee. The Lessee further agrees to deliver to
the Indenture Trustee and the Owner Participant a copy of each notice,
statement, request, report or other communication given or required to be
given to the Owner Trustee under the Lease.
Section 13.03. Pass Through Trustee's and Subordination Agent's
Acknowledgment. The Pass Through Trustee and the Subordination Agent hereby
acknowledge and agree to be bound by all of the terms and conditions of the
Indenture, including without limitation, Section 8.01 thereof regarding the
rights of the Owner Participant to purchase the Certificates under
circumstances specified therein.
ARTICLE 14
NOTICES
Section 14.01. Notices. All notices, demands, declarations and
other communications required by this Agreement shall be in writing and
shall be deemed received (a) if given by telecopier, when transmitted and
the appropriate telephonic confirmation received if transmitted on a
Business Day and during normal business hours of the recipient, and
otherwise on the next Business Day following transmission, (b) if given by
certified mail, return receipt requested, postage prepaid five Business
Days after being deposited in the United States mail and (c) if given by
FedEx service (or, if a Default or Event of Default shall have occurred and
be continuing, by other comparable courier service), when received or
personally delivered, addressed:
(a) If to the Lessee, to its office at 2007 Corporate Avenue,
Memphis, Tennessee 38132, Attention: Vice President and Treasurer with a
copy to Senior Vice President and General Counsel at 1980 Nonconnah
Boulevard, Memphis, Tennessee 38132, telephone (901) 395-3388, facsimile
(901) 395-4758; or to such other address as the Lessee shall from time to
time designate in writing to the Lessor, the Indenture Trustee and the
Owner Participant;
(b) If to the Lessor or the Owner Trustee, to it c/o State Street
Bank and Trust Company, Two International Place, 4th Floor, Boston,
Massachusetts 02110, Attention: Corporate Trust Department, telephone (617)
664-5526, facsimile (617) 664-5371; or to such other address as the Lessor
shall from time to time designate in writing to the Lessee and the
Indenture Trustee, with a copy to the Owner Participant;
(c) If to the Owner Participant, to its office at 200 First Stamford
Place, Stamford, Connecticut 06902, Attention: Vice President Leasing with
a copy to Director, Portfolio Administration, telephone (914) 335-5000,
facsimile 914 335-8301, or to such other address as the Owner Participant
may from time to time designate in writing to the Lessee and the Indenture
Trustee;
(d) If to the Indenture Trustee, the Subordination Agent or the Pass
Through Trustee, to its office at 79 South Main Street, Salt Lake City,
Utah 84111, Attention: Corporate Trust Department, telephone (801)
246-5053, facsimile (801) 246-5630; or to such other address as the
Indenture Trustee or the Pass Through Trustee, as the case may be, shall
from time to time designate in writing to the Lessor, the Lessee and the
Owner Participant; and
(e) If to a Liquidity Provider, to its office at 125 West 55th
Street, New York, New York 10019, Attention: General Manager, telephone
(212) 541-0600, facsimile (212) 956-5580; or to such other address as a
Liquidity Provider shall from time to time designate in writing to the
Lessor, the Lessee and the Indenture Trustee.
ARTICLE 15
REFINANCING/REOPTIMIZATION
Section 15.01. Refinancing. (a) Subject to the terms and
conditions of this Section 15.01, the Lessee may request the Owner Participant
to participate in up to two refinancings in whole but not in part, of the
Certificates prior to the end of the Basic Term (a "Refinancing"). Such
Refinancings may be placed in either the private or public markets and shall
be denominated in United States dollars (or in any other foreign currency so
long as the Owner Participant is satisfied there is no foreign currency risk
to it), and shall be on terms that do not materially adversely affect the
Owner Participant. The Owner Participant agrees to negotiate promptly in good
faith to conclude an agreement with the Lessee as to the terms of any such
Refinancing transaction (including the terms of any debt to be issued in
connection with such refinancing and the documentation to be executed in
connection therewith). Without the prior written consent of the Owner
Participant, the prospectus and other offering materials relating to any
Refinancing in the form of a public offering shall not identify the Owner
Participant and shall not include any financial statements of the Owner
Participant or any Affiliate thereof. In connection with any such Refinancing
in the form of a public offering, the Lessee shall indemnify the Owner
Participant in a manner satisfactory to it for any liabilities under federal,
state or foreign securities laws resulting from such offering. The aggregate
principal amount of the new Certificates issued in connection with each
Refinancing shall be the same as the aggregate principal amount outstanding on
the Certificates being refinanced.
(b) Notwithstanding anything herein to the contrary, no Refinancing
will be permitted unless the Owner Participant and the Indenture Trustee shall
have received at least 15 days' prior written notice of the scheduled closing
date of such Refinancing and the Owner Participant shall have been provided
such longer period as it shall have required for a reasonable opportunity to
review the relevant documentation and the Owner Participant shall have
determined in good faith that neither it nor the Owner Trustee shall suffer
any loss or expense or bear any increased risk as a result of such Refinancing
(including, without limitation, any risk with respect to taxes or other
adverse consequences to the Owner Participant including the application of
Revenue Procedures 75-21 and 75-28 and Section 467 of the Code) for which it
has not been or will not have been indemnified by the Lessee in a manner
reasonably satisfactory to the Owner Participant, nor shall its rights against
all other parties taken as a whole be adversely affected compared to such
rights in effect under the Operative Agreements prior to such proposed
Refinancing.
Prior to the consummation of any Refinancing pursuant to this Section
15.01, the Owner Participant and the Lessee shall agree upon a schedule
setting forth each installment of Basic Rent and setting forth Stipulated Loss
Values and Termination Values payable pursuant to the Lease as a result of the
Refinancing in accordance with Section 3.04 of the Lease, and thereafter the
amounts set forth in such schedule shall become the amounts payable under the
Lease. Upon the consummation of the Refinancing, the evidence of indebtedness
issued pursuant to the Refinancing shall be considered "Certificates" for
purposes of this Agreement, the Lease and the Indenture.
(c) Notwithstanding the foregoing, the Owner Participant shall have
no obligation to proceed with any Refinancing transaction as contemplated by
this Section 15.01 unless the Lessee indemnifies the Owner Trustee and the
Owner Participant by agreement in form and substance satisfactory to each of
them, for any liability, obligation (other than the obligation to pay
principal and interest in respect of the refinanced indebtedness), cost or
expense (including, without limitation, reasonable attorneys' fees and
Make-Whole Premium or other amounts due under the Indenture), including any
adverse tax consequences or impact, related to or arising out of any such
Refinancing transaction.
(d) Without the prior written consent of the Owner Participant,
which consent may be withheld in its sole discretion, no such refinancing
shall (1) cause the aggregate principal amount of the indebtedness to be
substituted for the Certificates to exceed the aggregate principal amount
of the then outstanding Certificates, (2) cause the weighted average life
of such indebtedness to be different by more than 6 months than the
remaining weighted average life of the then outstanding Certificates, or
(3) cause the date of maturity of such indebtedness to be later than the
date of maturity of the Certificates being refinanced.
(e) Each party agrees to take or cause to be taken all requested
action, including, without limitation, the execution and delivery of any
documents and instruments, including, without limitation, amendments or
supplements to the Lease, which may be reasonably necessary or desirable to
effect such Refinancing, including, in the case of the Owner Participant,
direction to the Owner Trustee by the Owner Participant to prepay the
Certificates then outstanding; provided, however, that such Refinancing shall
be subject to the satisfaction of each of the following conditions:
(i) Payment of principal, accrued interest, Make-Whole Premium
and breakage costs, if any, and all other sums due and owing on the
Certificates payable under the Indenture;
(ii) Payment in full of all other amounts then due and owing by the
Lessee under this Agreement, the Indenture, the Lease, the Trust Agreement,
and the Certificates then outstanding shall have been made by the Lessee;
(iii) Such party shall have received such opinions of counsel
(including, without limitation, an opinion received by the Owner
Participant from independent tax counsel reasonably satisfactory to the
Lessee that such Refinancing shall not result in any adverse tax
consequences to such Owner Participant, unless the Lessee shall have agreed
to provide an indemnity in respect thereof reasonably satisfactory in form
and substance to the Owner Participant), certificates and other documents
as it may reasonably request, each in form and substance reasonably
satisfactory to such party;
(iv) All authorizations, approvals and consents which in the
reasonable judgment of the Owner Participant are necessary for such
Refinancing shall have been obtained;
(v) The Lessee shall have provided or agreed to provide to the
Owner Participant, as Supplemental Rent under the Lease, sufficient
funds to pay any breakage costs, Make-Whole Premium and any other
amounts due under the Indenture;
(vi) The satisfaction or waiver by each other party to this
Agreement of the conditions set forth in this Section 15.01 to such
party's obligations under this Section 15.01;
(vii) No Payment Default, Bankruptcy Default or Event of Default
shall have occurred and be continuing or would occur immediately after
giving effect to such Refinancing;
(viii) In the event the Lessee shall not prohibit the purchase of
the Refinancing loan certificates by, or with the assets of, an employee
benefit plan, as defined in Section 3(3) of ERISA, which is subject to
Title I of ERISA or a plan or individual retirement account, which is
subject to Section 4975(c) of the Code, (individually or collectively, an
"ERISA Plan"), the Lessee will permit the placement of the Refinancing loan
certificates with an ERISA Plan only if either (A) if such placement is in
the form of pass through certificates, the sole underwriter or the manager
or co-manager of the underwriting syndicate or the selling or placement
agent of the Refinancing loan certificates represents to the Lessee that it
has a prohibited transaction exemption from the U.S. Department of Labor
with respect to pass through certificates (such as Prohibited Transaction
Exemption 89-88 or any other comparable exemption) or (B) purchasers of the
Refinancing loan certificates provide a representation (which may be in the
form of a deemed representation) regarding their source of funds used in
acquiring the Refinancing loan certificates and, if such purchasers
represent that they are using funds of an ERISA Plan in acquiring the
Refinancing loan certificates, such purchasers further represent that (1)
either they are relying on a prohibited transaction exemption from the U.S.
Department of Labor with respect to their purchase and holding of the
Refinancing loan certificates and they provide representations regarding
the satisfaction of the relevant conditions of such an exemption or (2)
their purchase and holding of the Refinancing loan certificates will not
constitute a non-exempt prohibited transaction under Section 406 of
ERISA or Section 4975 of the Code. The reliance on any such exemption
will not be conditional on the Owner Participant's representation
concerning its party in interest or other status with respect to ERISA
Plans. If neither exemption referred to in clause (A) or (B) of this
paragraph (viii) is valid or applicable in any respect to the purchase
and holding of the Refinancing loan certificates, or if the
representation in clause (B) of this paragraph (viii) that such purchase
and holding will not constitute a non-exempt prohibited transaction is
not correct, whichever is applicable, then the Lessee shall indemnify
the Owner Participant pursuant to, and to the extent provided for, under
Sections 8 and 9 hereof for Taxes and Expenses resulting from any
"prohibited transaction", within the meaning of Section 406 of ERISA or
Section 4975(c)(1) of the Code, occurring with respect to the placement
of the Refinancing loan certificates with, or the holding of the
Refinancing loan certificates by, any ERISA Plan with respect to which
the Owner Participant is a party in interest, within the meaning of
Section 3(14) of ERISA, or a disqualified person, within the meaning of
Section 4975 of the Code, provided, however, that if the Lessee shall
fail to obtain either of the representations set forth in clause (A) or
(B) of this paragraph (viii), such indemnity shall not be subject to the
exceptions set forth under Sections 8.01(b)(xii)(A) and (B) and
9.01(b)(ix)(A) and (B) hereof; and
(ix) The Lessee shall pay all costs and expenses (including legal
fees) incurred in connection with any proposed or actually consummated
Refinancing.
Section 15.02. Reoptimization. (a) If a Change in Tax Rate occurs
prior to the end of the Basic Term, then, subject to the terms and conditions
of this Section 15.02 and Section 3.04 of the Lease, the Owner Participant
may, upon 30 days' prior notice to the Lessee, the Indenture Trustee, the
Owner Trustee and the Holders, elect to modify the schedule of payments of
principal of the certificates issued ("Refinancing Certificates") in
connection with any Refinancing using private debt (not including debt issued
pursuant to an exemption from registration under the Securities Act relying on
Rule 144A promulgated thereunder but otherwise marketed in a manner
substantially similar to securities registered under the Securities Act, and
not including debt issued in connection with any offering of securities
registered under the Securities Act) due on each remaining Rent Payment Date
on or commencing on the Rent Payment Date next succeeding the date mutually
agreed to by the Owner Participant, the Lessee and the Indenture Trustee on
which the Owner Participant shall make such modification (the "Reoptimization
Date"). Promptly after making such modification, the Owner Participant shall
furnish each party hereto written notice of the amounts so recalculated.
(b) Adjustments to Refinancing Certificates. On the Reoptimization
Date, subject to the satisfaction on or before the Reoptimization Date of the
conditions set forth in Section 15.02(c), the Owner Trustee will issue and
deliver and the Indenture Trustee will authenticate, and each holder of a
Refinancing Certificate will accept delivery of, a new Refinancing Certificate
or Refinancing Certificates (in replacement of each Refinancing Certificate
then held by such holder, which Refinancing Certificates shall be surrendered
to the Indenture Trustee for cancellation) containing such changed principal
installments (expressed as a percentage of the original principal amount of
such Refinancing Certificate) as shall have been recalculated by the Owner
Participant, but in the same principal amount as, and containing terms
identical to, except as otherwise contemplated by Section 15.02(d) hereof, the
Refinancing Certificates originally issued in connection with the Operative
Agreements.
(c) Conditions to the Obligations of the Holders of the Refinancing
Certificates on the Reoptimization Date. The obligation of each holder of a
Refinancing Certificate to accept delivery of a new Refinancing Certificate on
the Reoptimization Date, and to surrender on such Reoptimization Date any
Refinancing Certificate then held by it, is subject to the following
conditions precedent having been satisfied on or before the Reoptimization
Date:
(i) the requirements of Section 15.02(d) hereof shall have been
satisfied;
(ii) the following documents, in form and substance satisfactory to
such Holder, shall have been duly authorized, executed and delivered by the
party or parties thereto and shall be in full force and effect: (A) if the
payments of Basic Rent, Stipulated Loss Values and Termination Values with
respect to the Term have been changed, an amendment to the Lease, dated the
Reoptimization Date, (B) an amendment to the Indenture setting forth any
changed repayment schedule to the Refinancing Certificates, dated the
Reoptimization Date and duly filed (or in the process of being so duly
filed) for recordation with the Aeronautics Authority and (C) replacement
Refinancing Certificates; and
(iii) in connection with any Reoptimization the Owner Participant
shall pay or agree to pay all reasonable costs and expenses incurred by the
Lessee, the Owner Trustee, the Indenture Trustee and each Holder of a
Refinancing Certificate (including, without limitation, reasonable legal
fees and expenses) in connection with any such reoptimization.
(d) Payment Schedules. Except as otherwise provided in this
Section 15.02 as long as the Refinancing Certificates remain outstanding,
the payment schedules for the Refinancing Certificates shall not be
modified.
ARTICLE 16
[RESERVED]
ARTICLE 17
MISCELLANEOUS
Section 17.01. Owner for Federal Tax Purposes. It is hereby agreed
between the Owner Participant and the Lessee (but the Lessee makes no
representation to such effect) that it is the intent of the parties for
Federal, state, local and foreign income tax purposes that the Owner
Participant will be treated as the owner of the Aircraft and the Lessee will
be treated as the lessee of the Aircraft.
Section 17.02. Collateral Account. (a) The Indenture Trustee shall
notify the Owner Trustee and the Lessee of any losses incurred on the
Specified Investments in the Collateral Account promptly upon the realization
thereof, as well as any fees, commissions and other costs, Taxes (other than
income taxes) and expenses, if any, incurred by the Indenture Trustee in
connection with its administration of the Collateral Account (collectively,
"Losses"). Promptly upon receipt of such notification but, in any event, no
later than the earlier of the Delivery Date (or, if later, the last day of any
investment period referred to in Section 2.14(b) of the Indenture during which
the Delivery Date occurs) and the 15th day after the Cut-Off Date, the Lessee
shall pay to the Indenture Trustee, on behalf of the Owner Trustee, for
deposit into the Collateral Account, an amount equal to such Losses (net of
any investment earnings).
(b) The Lessee shall pay to the Indenture Trustee, on behalf of the
Owner Trustee (A) on each Payment Date prior to the Delivery Date an amount
equal to the aggregate amount of interest accrued on the Certificates from
(and including) the Certificate Closing Date or previous Payment Date, as the
case may be, to, but excluding, such Payment Date and (B) on the first Payment
Date subsequent to the Delivery Date, interest accrued on the Certificates
from and including the last Payment Date (or, if none, the Certificate Closing
Date), to, but excluding, the Delivery Date. In addition, the Lessee will pay
to the Indenture Trustee on behalf of the Owner Trustee all amounts owed by
the Owner Trustee pursuant to clause (b) of the last paragraph of Section 2.04
of the Indenture.
(c) If the Aircraft has not been purchased by the Owner Trustee
on the Delivery Date, the Lessee agrees to pay to the Indenture Trustee, on
behalf of the Owner Trustee, on the 15th day following the Cut-Off Date the
excess, if any, of the amounts payable under Section 6.02(b)(1) of the
Indenture over the amounts released from the Collateral Account under
Section 2.16 of the Indenture.
(d) All amounts payable by the Lessee pursuant to this Section 17.02
shall be paid to the Indenture Trustee at its principal office at 79 South
Main Street, Salt Lake City, Utah, 84111, Attention: Corporate Trust
Department, or as the Indenture Trustee may otherwise direct within the United
States, by wire transfer of immediately available funds in U.S. Dollars no
later than 10:30 a.m., New York City time, on the due date of such payment.
Section 17.03. Counterparts. This Agreement may be executed by the
parties in separate counterparts, each of which when so executed and delivered
shall be an original, but all such counterparts shall together constitute but
one and the same instrument.
Section 17.04. No Oral Modifications. Neither this Agreement nor
any of its terms may be terminated, amended, supplemented, waived or modified
orally, but only by an instrument in writing signed by the party against which
the enforcement of the termination, amendment, supplement, waiver or
modification is sought. No such written termination, amendment, supplement,
waiver or modification shall be effective unless a signed copy shall have been
delivered to and executed by the Owner Trustee and the Indenture Trustee. A
copy of each such termination, amendment, supplement, waiver or modification
shall also be delivered to each other party to this Agreement.
The consent of each of the Pass Through Trustee and the Subordination
Agent, in its capacity as a party to this Agreement and not as a Holder, shall
not be required to modify, amend or supplement this Agreement or to give any
consent, waiver, authorization or approval with respect to this Agreement
under the circumstances in which the consent of the Indenture Trustee would
not be required for such modification, amendment, supplement, consent, waiver
or approval in accordance with Section 8.01(b) of the Indenture, provided that
the Pass Through Trustee shall be entitled to receive an Opinion of Counsel
(as defined in the Pass Through Agreement) necessary, in its sole discretion,
to establish that the Indenture Trustee's consent would not be required under
such circumstances.
Section 17.05. Captions. The table of contents preceding this
Agreement and the headings of the various Articles and Sections of this
Agreement are for convenience of reference only and shall not modify, define,
expand or limit any of the terms or provisions of this Agreement.
Section 17.06. Successors and Assigns. The terms of this Agreement
shall be binding upon, and shall inure to the benefit of, the Lessee and its
successors and permitted assigns, the Subordination Agent and its successors
and permitted assigns, including without limitation each Holder of a
Certificate, the Owner Participant and its successors and permitted assigns,
the Owner Trustee and its successors as Owner Trustee (and any additional
owner trustee appointed) under the Trust Agreement, the Indenture Trustee and
its successors as Indenture Trustee (and any additional indenture trustee
appointed) under the Indenture and the Pass Through Trustee and its successors
as Pass Through Trustee (and any additional pass through trustee appointed).
Section 17.07. Concerning the Owner Trustee, Indenture Trustee and
the Pass Through Trustee. Each of SSB and FSB is entering into this Agreement
solely in their respective capacities (except to the extent otherwise
expressly indicated), in the case of SSB, not in its individual capacity but
solely as Owner Trustee under the Trust Agreement, in the case of FSB, not in
its individual capacity but solely as Indenture Trustee under the Indenture
and as Pass Through Trustee under the Pass Through Agreement, and except as
otherwise expressly provided in this Agreement or in the Lease, the Indenture,
the Pass Through Agreement or the Trust Agreement, neither SSB, nor FSB,
shall be personally liable for or on account of its statements,
representations, warranties, covenants or obligations under this Agreement;
provided, however, that each of SSB and FSB accepts the benefits running to it
under this Agreement, and each agrees that (except as otherwise expressly
provided in this Agreement or any other Operative Agreement to which it is a
party) it shall be liable in its individual capacity for (a) its own gross
negligence or willful misconduct (whether in its capacity as trustee or in its
individual capacity), (b) any breach of representations and warranties or any
breach of covenants made in its individual capacity pursuant to or in
connection with this Agreement or the other Operative Agreements to which
it is a party, (c) any breach, in the case of the Owner Trustee, of its
covenants contained in Sections 3.05 and 3.08 of the Indenture, (d) the
failure to use ordinary care in receiving, handling and disbursing funds,
(e) in the case of the Owner Trustee, Lessor's Liens attributable to it in
its individual capacity, (f) in the case of the Indenture Trustee,
Indenture Trustee's Liens and (g) taxes, fees or other charges on, or based
on, or measured by, any fees, commissions or compensation received by it in
connection with the transactions contemplated by the Operative Agreements.
Section 17.08. Severability. Any provision of this Agreement which
is prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions, and any such
prohibition or unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction.
Section 17.09. Public Release of Information. Subject to applicable
legal requirements (including, without limitation, securities laws
requirements, other regulatory requirements and other legally compelled
disclosures), so long as there shall not have occurred an Event of Default or
Indenture Event of Default, each party to this Agreement shall in each
instance obtain the prior written approval of each other party to this
Agreement concerning the exact text and timing of news releases, articles and
other information releases to the public media concerning any Operative
Agreements.
Section 17.10. Certain Limitations on Reorganization. The Indenture
Trustee and the Pass Through Trustee agree that, if (i) the Owner Trustee
becomes or all or any part of the Lessor's Estate or the trust created by the
Trust Agreement becomes the property of, a debtor subject to the
reorganization provisions of the Bankruptcy Code or any other applicable
bankruptcy or insolvency statutes, (ii) pursuant to any such reorganization
provisions, the Owner Participant is held to have recourse liability to the
debtor, the Owner Trustee or the trustee of the debtor directly or indirectly
on account of any amount payable as Make-Whole Premium, principal or interest
on the Certificates, or any other amount payable on any Certificate that is
provided in the Operative Agreements to be nonrecourse to the Owner
Participant and (iii) the Indenture Trustee actually receives any Recourse
Amount which reflects any payment by the Owner Participant on account of (ii)
above, then the Indenture Trustee, as the case may be, shall promptly refund
to the Owner Participant such Recourse Amount. For purposes of this Section
17.10, "Recourse Amount" means the amount by which the portion of such payment
by the Owner Participant on account of clause (ii) above received by the
Indenture Trustee exceeds the amount which would have been received by the
Indenture Trustee if the Owner Participant had not become subject to the
recourse liability referred to in (ii) above. Nothing contained in this
Section shall prevent the Indenture Trustee from enforcing any individual
obligation (and retaining the proceeds thereof) of the Owner Participant under
this Agreement or any other Operative Agreement to the extent herein or
therein provided, for which the Owner Participant has expressly agreed by the
terms of this Agreement to accept individual responsibility.
Section 17.11. GOVERNING LAW. THIS AGREEMENT SHALL IN ALL RESPECTS
BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK, INCLUDING ALL MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE, WITHOUT
GIVING EFFECT TO PRINCIPLES OF CONFLICTS OF LAWS AND IS BEING DELIVERED IN NEW
YORK.
Section 17.12. Section 1110 Compliance. The parties hereto agree
that the transactions contemplated by the Operative Agreements are expressly
intended to be, shall be and should be construed so as to be entitled to the
benefits and protection of Section 1110 of the Bankruptcy Code.
Section 17.13. Reliance of Liquidity Providers. Each of the parties
hereto agrees and acknowledges that each Liquidity Provider shall be a third
party beneficiary of each of the representations and warranties made herein by
such party, and that each Liquidity Provider may rely on such representations
and warranties to the same extent as if such representations and warranties
were made to such Liquidity Provider directly. The terms of this Agreement
shall inure to the benefit of each Liquidity Provider, their respective
successors and permitted assigns.
ARTICLE 18
CONFIDENTIALITY
Section 18.01. Confidentiality. Each party hereto agrees (on behalf
of itself and each of its Affiliates, agents, directors, officers, employees
and representatives) to use reasonable precautions to keep confidential, in
accordance with its customary procedures for handling confidential information
of this nature, any non-public information supplied to it pursuant to this
Agreement which is identified by the Person supplying the same as being
confidential at the time the same is delivered to such party, provided that
nothing herein shall limit the disclosure of any such information (i) to the
extent required by statute, rule, regulation or judicial process, (ii) to
counsel for any of the parties hereto, (iii) to bank examiners or similar
regulatory authorities, auditors or accountants, (iv) in connection with any
litigation to which any one or more of the parties hereto is a party relating
to the transactions contemplated hereby or by any of the Operative Agreements,
(v) to an Affiliate of the parties hereto, (vi) to any assignee or participant
(or prospective assignee or participant) or other transferee so long as such
assignee or participant (or prospective assignee or participant) or other
transferee first executes and delivers to the respective party making such
assignment or participation an agreement in writing to be bound by the
provisions of this Section 18.01 or (vii) in the case of the Owner Participant
or the Owner Trustee (in its individual or trust capacity) to the Owner
Trustee (in its individual or trust capacity) or to the Owner Participant, as
the case may be.
IN WITNESS WHEREOF, the parties have caused this Participation
Agreement to be executed by their respective, duly authorized officers and
this Participation Agreement shall be effective this 22nd day of May, 1997.
LESSEE:
FEDERAL EXPRESS CORPORATION
By:__________________________________________
Name: Robert D. Henning
Title: Assistant Treasurer and Managing
Director - Structured Finance
OWNER PARTICIPANT:
PMCC LEASING CORPORATION
By:__________________________________________
Name: Joan D. Woodroof
Title: Manager, Structured Finance
OWNER TRUSTEE:
STATE STREET BANK AND TRUST COMPANY OF
CONNECTICUT, NATIONAL ASSOCIATION,
not in its individual capacity,
except as otherwise expressly provided herein,
but solely as Owner Trustee
By:__________________________________________
Name: Paul D. Allen
Title: Vice President
INDENTURE TRUSTEE:
FIRST SECURITY BANK,
NATIONAL ASSOCIATION,
not in its individual capacity except as
otherwise expressly provided herein,
but solely as Indenture Trustee
By:__________________________________________
Name: Greg A. Hawley
Title: Vice President
PASS THROUGH TRUSTEE:
FIRST SECURITY BANK,
NATIONAL ASSOCIATION,
not in its individual capacity except as
otherwise expressly provided herein,
but solely as Pass Through Trustee
By:__________________________________________
Name: Greg A. Hawley
Title: Vice President
SUBORDINATION AGENT:
FIRST SECURITY BANK,
NATIONAL ASSOCIATION,
not in its individual capacity except as
otherwise expressly provided herein,
but solely as Subordination Agent
By:__________________________________________
Name: Greg A. Hawley
Title: Vice President
SCHEDULE I
CERTIFICATE INFORMATION
1. Federal Express Corporation 1997-1 Pass Through Trust Class A
Federal Express Corporation Trust No. N673FE
Interest Rate: 7.50%
Maturity: January 15, 2018
Principal Amount: $33,382,000
2. Federal Express Corporation 1997-1 Pass Through Trust Class B
Federal Express Corporation Trust No. N673FE
Interest Rate: 7.52%
Maturity: January 15, 2018
Principal Amount: $12,408,000
3. Federal Express Corporation 1997-1 Pass Through Trust Class C
Federal Express Corporation Trust No. N673FE
Interest Rate: 7.65%
Maturity: January 15, 2014
Principal Amount: $16,023,000
SCHEDULE II
DEFINITIONS
(FEDERAL EXPRESS CORPORATION TRUST NO. N673FE)
GENERAL PROVISIONS
The following terms shall have the following meanings for all
purposes of the Operative Agreements (other than the Pass Through Agreement,
the Series Supplements, the Intercreditor Agreement and the Liquidity
Facilities) referred to below, unless otherwise defined in an Operative
Agreement or the context thereof shall otherwise require. In the case of any
conflict between the provisions of this Schedule and the provisions of any
Operative Agreement, the provisions of such Operative Agreement shall control
the construction of such Operative Agreement.
Unless the context otherwise requires, (i) references to agreements
shall be deemed to mean and include such agreements as amended and
supplemented from time to time, and (ii) references to parties to agreements
shall be deemed to include the successors and permitted assigns of such
parties.
DEFINED TERMS:
Additional Insured. As defined in Article 13 of the Lease.
Aeronautics Authority. As appropriate, the Federal Aviation
Administration and/or the Administrator of the Federal Aviation
Administration, any successor to the former United States Civil Aeronautics
Board, or any Person, governmental department, bureau, commission or agency
located in the United States succeeding to the functions of any of the
foregoing.
Affidavits. The affidavits of citizenship of the Owner Trustee and
the Owner Participant.
Affiliate. With respect to any Person, any other Person directly or
indirectly controlling, controlled by or under common control with such
Person. For the purposes of this definition, "control" (including "controlled
by" and "under common control with") shall mean the power, directly or
indirectly, to direct or cause the direction of the management and policies of
such Person whether through the ownership of voting securities or by contract
or otherwise. In no event shall the Owner Trustee or the Lessor be deemed an
Affiliate of the Owner Participant.
After-Tax Basis. A basis such that any payment to be received by a
Person shall be supplemented by a further payment to such Person so that the
sum of the two payments, after deduction of all Taxes resulting from the
receipt or accrual of such payments, shall be equal to the payment to be
received. In the case of amounts payable to the Lessor, the Owner Participant,
or any corporate Affiliate of the Owner Participant, it shall be presumed that
such Person is at all times subject to Federal income tax at the maximum
marginal rate generally applicable to corporations from time to time and
actual state, local and foreign income taxes.
Air Carrier. Any U.S. Air Carrier and any "foreign air carrier" (as
defined in the Transportation Code) as to which there is in force a permit
granted under Section 41302 of the Transportation Code.
Airbus Guaranty. The Guaranty to be dated the Delivery Date executed
by the Manufacturer and guaranteeing AVSA's Warranty Bill of Sale.
Aircraft. The Airframe to be sold by AVSA to the Owner Trustee as
provided in the Participation Agreement and to be leased under the Lease (or
any permitted substitute airframe thereunder) together with two Engines
(whether either is an initial Engine or a Replacement Engine) whether or not
any of such initial or Replacement Engines may from time to time be installed
on such Airframe or may be installed on any other airframe or on any other
aircraft, including any aircraft substituted pursuant to Section 11.03 of the
Lease. Prior to delivery of the initial Lease Supplement, references in the
Operative Agreements (including Section 3.05 of the Participation Agreement)
to Aircraft shall mean the Airbus A300F4-605R airframe bearing FAA
Registration Number N673FE and Manufacturer's serial number 780, together with
two General Electric CF6-80C2-A5F engines.
Airframe. The Airbus A300F4-605R aircraft (excluding the Engines or
engines from time to time installed thereon) to be leased by the Lessor to the
Lessee pursuant to the Lease and the initial Lease Supplement and having the
United States FAA Registration Number initially and manufacturer's serial
number specified in the initial Lease Supplement, including (i) all Parts in
respect thereof and (ii) any Replacement Airframe which may be substituted
pursuant to Section 11.03 of the Lease.
Ancillary Agreement. Any written agreement of the Lessee to which the
Lessor is a party or to which the Lessor has consented in writing entered into
on or prior to the Delivery Date or any date thereafter in connection with the
transactions contemplated by the Operative Agreements, as such agreement may
be amended and supplemented from time to time with the consent of the Lessor
and delivered to the Owner Trustee, the Indenture Trustee, the Pass Through
Trustee, the Subordination Agent, each Liquidity Provider and the Owner
Participant.
Ancillary Agreement I. The Ancillary Agreement I (Federal Express
Corporation Trust No. N673FE), dated the Certificate Closing Date, among the
Lessee, the Owner Trustee, not in its individual capacity, but solely as Owner
Trustee, the Owner Participant and the Indenture Trustee not in its individual
capacity, but solely as Indenture Trustee, as originally executed or as
amended, modified or supplemented with the consent of all the parties thereto.
Ancillary Agreement II. The Ancillary Agreement II (Federal Express
Corporation Trust No. N673FE), dated the Certificate Closing Date, among the
Lessee, the Owner Trustee, not in its individual capacity, but solely as Owner
Trustee, the Owner Participant and the Indenture Trustee not in its individual
capacity, but solely as Indenture Trustee, as originally executed or as
amended, modified or supplemented with the consent of all the parties thereto.
Application. The application for registration of the Aircraft with
the FAA in the name of the Owner Trustee.
Appraisal. The report prepared by BK Associates, Inc. and to be
delivered to the Owner Participant (with an abbreviated report to the Lessee)
on the Delivery Date pursuant to Section 4.02(h) of the Participation
Agreement.
Assignment and Assumption Agreement. Any agreement delivered in
compliance with Section 7.03(d) of the Participation Agreement.
Average Life Date. For any Certificate, the date which follows the
prepayment date by a period equal to the Remaining Weighted Average Life of
such Certificate.
AVSA. AVSA S.A.R.L., a societe a responsabilite limitee, organized
and existing under the laws of France.
AVSA Consent and Agreement. The Consent and Agreement dated as of
May 1, 1997, executed by AVSA.
AVSA's FAA Bill of Sale. The bill of sale for the Airframe on AC
Form 8050-2, or such other form as may be approved by the Aeronautics
Authority, executed by AVSA in favor of the Owner Trustee and to be dated the
Delivery Date.
AVSA's Warranty Bill of Sale. The full warranty bill of sale
covering the Aircraft (and specifically referring to each Engine) executed by
AVSA as owner of the Aircraft in favor of the Owner Trustee and to be dated
the Delivery Date.
Bankruptcy Code. The Federal Bankruptcy Code of 1978, as amended, and
any successor thereto.
Bankruptcy Default. An event specified in Section 16.01(e), (f) or
(g) of the Lease which either does or, with the giving of notice or lapse of
time or both, would constitute an Event of Default.
Basic Rent. The aggregate periodic rent payable for the Aircraft
throughout the Basic Term pursuant to Section 3.02 of the Lease, adjusted
pursuant to Article 3 of the Lease.
Basic Term. The period commencing at the beginning of the day on the
Delivery Date and ending at the end of the day on December 11, 2020, or such
earlier date on which the Lease shall be terminated as provided therein.
Beneficial Interest. The interest of the Owner Participant under the
Trust Agreement.
Business Day. Any day on which commercial banks are not authorized or
required to close in New York, New York, Memphis, Tennessee and the city in the
United States in which the office or agency is maintained by the Pass Through
Trustee for the payment of the Pass Through Certificates, and after the Lien
of the Indenture is discharged, Boston, Massachusetts.
Certificate Closing Date. The date of the closing with respect to the
purchase of Certificates by the Pass Through Trustee contemplated by Section
2.01(b) of the Participation Agreement.
Certificates. The Equipment Trust Certificates (Federal Express
Corporation Trust No. N673FE), issued by the Owner Trustee pursuant to the
Indenture and any certificate issued in exchange therefor or replacement
thereof pursuant to the Indenture.
Change in Tax Law. Any change to the Code or the Treasury regulations
promulgated thereunder or the publication of any revenue ruling, revenue
procedure or any informational release by the Internal Revenue Service or the
Department of Treasury either of which would change or would allow a change in
the tax assumptions or structure upon which the lease economics were based,
provided that the Owner Participant or the Lessee has notified the other party
of such change in writing prior to the Delivery Date.
Change in Tax Rate. Any amendment, modification, deletion, addition,
or change to the Code which is enacted into law after the Delivery Date which
changes the highest marginal statutory rate of Federal income tax applicable
to the Owner Participant (other than a change which is in the nature of a
minimum tax).
Citizen of the United States. A citizen of the United States as
defined in Section 40102(a)(15) of the Transportation Code, or any analogous
part of any successor or substituted legislation or regulation at the time in
effect.
Class A Liquidity Provider. Has the meaning specified in Section
1.01 of the Intercreditor Agreement.
Class B Liquidity Provider. Has the meaning specified in Section
1.01 of the Intercreditor Agreement.
Closings. The closing with respect to the acquisition of the Pass
Through Certificates by the Underwriters and the closing with respect to the
acquisition of Certificates by the Pass Through Trustee.
Code. Except as otherwise provided, the Internal Revenue Code of
1986, as amended from time to time.
Collateral Account. The deposit account established and maintained
pursuant to Section 2.13 of the Indenture.
Collateral Account Control Agreement. The Collateral Account Control
Agreement dated as of May 1, 1997 among State Street Bank and Trust Company,
the Indenture Trustee and the Owner Trustee.
Commitment. The amount of the Owner Participant's participation in
the Purchase Price required to be made available or paid as provided in
Section 3.02 of the Participation Agreement.
Consent and Agreement. The Consent and Agreement dated as of May 1,
1997 executed by the Manufacturer.
Consent and Guaranty. The Consent and Guaranty of the Manufacturer
attached to the Purchase Agreement.
Corporate Trust Administration. The Corporate Trust Administration
office of the Owner Trustee located at 750 Main Street, Hartford, Connecticut
06103, Attention: Corporation Trust Administration, or such other office at
which the Owner Trustee's corporate trust business shall be administered which
the Owner Trustee shall have specified by notice in writing to the Lessee, the
Owner Participant and the Indenture Trustee.
Corporate Trust Department. The Corporate Trust Department office of
the Indenture Trustee located at 79 South Main Street, Salt Lake City, Utah
84111, Attention: Corporate Trust Department, or such other office at which
the Indenture Trustee's corporate trust business shall be administered which
the Indenture Trustee shall have specified by notice in writing to the Lessee,
the Owner Participant and the Owner Trustee.
CRAF Program. Has the meaning specified in Section 7.01(f) of the
Lease.
Cut-Off Date. December 10, 1997.
Debt Portion. The amount specified as such on Schedule IV to the
Participation Agreement.
Debt Rate. The weighted average (based on Outstanding principal
amount) rate of interest on the Certificates issued pursuant to the Indenture.
Default. Any event or condition which, with the lapse of time or the
giving of notice, or both, would constitute an Event of Default.
Delivery Date. The date on which the Aircraft is delivered and sold
by AVSA to the Lessor and leased by the Lessor to the Lessee under the Lease,
which date shall also be the date of the initial Lease Supplement.
Delivery Notice. Notice of the Aircraft's Delivery Date, given by
the Lessee as provided in Section 3.01 of the Participation Agreement and
including any notice with respect to a postponed Delivery Date given by the
Lessee pursuant to Section 3.05(c) of the Participation Agreement.
Eligible Deposit Account. Either (a) a segregated account with an
Eligible Institution or (b) a segregated trust account with the corporate
trust department of a depository institution with corporate trust powers
organized under the laws of the United States or any state thereof, or the
District of Columbia, and whose deposits are insured by the Federal Deposit
Insurance Corporation, provided that such institution also has a combined
capital and surplus of at least $100,000,000 and a rating of A or better from
the Thomson Bank Watch.
Eligible Institution. A depository institution organized under the
laws of the United States or any one of the states thereof, or the District of
Columbia, or any domestic branch of a foreign bank, which in any such case at
all times (a) has either (x) a long-term unsecured debt rating of at least Aa2
by Moody's or (y) a short-term certificate of deposit rating of P-1 by
Moody's, (b) has either (x) a long-term unsecured debt rating of a least AA by
S&P or (y) a short-term certificate of deposit rating of A-1+ by S&P and (c)
is a member of the Federal Deposit Insurance Corporation.
Engine. Each of the two General Electric CF6-80C2-A5F engines listed
by its manufacturer's serial number in the initial Lease Supplement and leased
pursuant to the Lease, whether or not from time to time installed on the
Airframe or installed on any other airframe or on any other aircraft, and any
Replacement Engine which may from time to time be substituted for an Engine
pursuant to Section 7.02(a)(vii), 10.02(c), 10.03, 11.03, 11.04 or 12.02 of
the Lease, together with all Parts related thereto. Except as otherwise
provided, at such time as a Replacement Engine shall be so substituted and the
Engine for which the substitution is made shall be released from the Lien of
the Indenture, such replaced Engine shall cease to be an "Engine" under the
Lease. The term "Engines" means, as of any date of determination, both Engines
then leased to the Lessee pursuant to the Lease.
Engine Consent. The Engine Consent dated as of May 1, 1997, executed
by the Engine Manufacturer.
Engine Manufacturer. General Electric Company, a New York
corporation.
Engine Warranty Assignment. The Engine Warranty Assignment (Federal
Express Corporation Trust No. N673FE), dated as of May 1, 1997 between the
Lessor and the Lessee.
ERISA. The Employee Retirement Income Security Act of 1974, as
amended.
ERISA Plan. As defined in Section 8.01(b)(xii) of the Participation
Agreement.
Estimated Expense Amount. Has the meaning specified in Section
10.01(a) of the Participation Agreement.
Event of Default. Each of the events specified in Article 16 of the
Lease.
Event of Loss. Any of the following events with respect to the
Aircraft, the Airframe or any Engine: (i) loss of such property or its use (A)
for a period in excess of 60 days due to theft or disappearance or such longer
period, not to exceed 180 days from the end of such initial 60-day period, if
and so long as the location of such property is known to the Lessee and the
Lessee is diligently pursuing recovery of such property, or to the end of the
Term, if less (unless such theft or disappearance constitutes an Event of Loss
pursuant to (i)(B) or (ii) hereof) or (B) for a period in excess of 60 days
due to the destruction, damage beyond economic repair or rendition of such
property permanently unfit for normal use by Lessee for any reason whatsoever;
(ii) any damage to such property which results in an insurance settlement with
respect to such property on the basis of a total loss, or constructive or
compromised total loss; (iii) (1) condemnation, confiscation or seizure of, or
requisition of title to such property by the Government, any foreign
government or purported government or any agency or instrumentality thereof,
or (2) condemnation, confiscation, or seizure of, or requisition or taking of,
use of such property (A) by a foreign government or instrumentality or agency
of any such foreign government, for a period in excess of 180 days (or such
shorter period ending on the earlier of the expiration of the Term or on the
date on which an insurance settlement with respect to such property on the
basis of a total loss or constructive or compromised total loss shall occur)
or (B) by the Government for a period extending beyond the Term; and (iv) as a
result of any law, rule, regulation, order or other action by the Aeronautics
Authority or other governmental body having jurisdiction, the use of the
Aircraft or Airframe in the normal course of air transportation of cargo shall
have been prohibited by virtue of a condition affecting all Airbus A300-600
series aircraft equipped with engines of the same make and model as the
Engines for a period of twelve (12) consecutive months, unless the Lessee,
prior to the expiration of such twelve (12) month period, shall be diligently
carrying forward all steps which are necessary or desirable to permit the
normal use of the Aircraft or Airframe or, in any event, if such use of the
Aircraft or the Airframe shall have been prohibited for a period of
twenty-four (24) consecutive months or until the end of the Term, if earlier.
The date of such Event of Loss shall be (s) the 61st day or the 241st day, as
the case may be, following loss of such property or its use due to theft or
disappearance (or the end of the Term or the Lessee's abandonment of diligent
efforts to recover such property, if earlier); (t) the 61st day following the
date of any destruction, damage beyond economic repair or rendition of such
property permanently unfit for normal use; (u) the date of any insurance
settlement on the basis of a total loss or constructive or compromised total
loss; (v) the date of any condemnation, confiscation, seizure or requisition
of title of such property; (w) the 181st day following condemnation,
confiscation, seizure or requisition for use of such property by a foreign
government referred to in clause (iii)(2)(A) above (or the end of the Term or
the date of any insurance settlement described therein, if earlier than such
181st day); (x) the last day of the Term in the case of requisition for use of
such property by the Government; (y) the last day of the 12 month or 24 month
period, referred to in clause (iv) above (or if earlier, the end of the Term
or abandonment of the Lessee's efforts to restore the normal use of the
Aircraft). An Event of Loss with respect to the Aircraft shall be deemed to
have occurred if any Event of Loss occurs with respect to the Airframe.
Excepted Payments. Collectively, (i) indemnity, expense,
reimbursement or other payments paid or payable by the Lessee in respect of
the Owner Participant, the Owner Trustee in its individual capacity or any of
their respective successors, permitted assigns, directors, officers,
employees, servants and agents or Affiliates, pursuant to the Participation
Agreement or any other Operative Agreement or any indemnity hereafter granted
to the Owner Participant or the Owner Trustee in its individual capacity
pursuant to the Lease or the Participation Agreement, (ii) proceeds of public
liability insurance (or government indemnities in lieu thereof) in respect of
the Aircraft payable as a result of insurance claims paid for the benefit of,
or losses suffered by, the Owner Trustee or the Indenture Trustee in their
respective individual capacities or by the Owner Participant, or their
respective successors, permitted assigns or Affiliates, (iii) proceeds of
insurance maintained with respect to the Aircraft by the Owner Participant
(whether directly or through the Owner Trustee) maintained in accordance with
Section 13.05 of the Lease but not required under Article 13 of the Lease,
(iv) payments of Supplemental Rent by the Lessee in respect of any amounts
payable under the Tax Indemnity Agreement, (v) any purchase price paid to the
Owner Participant for its interest in the Trust Estate pursuant to Section
7.03(d) of the Participation Agreement, (vi) subject to Section 3.05 of the
Lease, payments constituting increases in Basic Rent attributable to payments
arising pursuant to Section 5 of the Tax Indemnity Agreement, (vii) any
payments in respect of interest to the extent attributable to payments
referred to in clauses (i) through (vi) above and (viii) any right to demand,
collect or otherwise receive and enforce the payment of any amount described
in clauses (i) through (v) and (vii) above (except with respect to interest
attributable to payments referred to in clause (vi) above).
Expense; Expenses. Have the meaning specified in Section 9.01(a) of
the Participation Agreement.
Fair Market Renewal Term. A term with respect to which the Lessee has
exercised its option to renew the Lease pursuant to the second paragraph of
Section 4.01(a) thereof and with respect to which the conditions set forth in
such Section 4.01(a) are met.
Fair Market Rental. An amount determined on the basis of, and equal
in amount to, the rental which would be obtained in an arm's-length
transaction between an informed and willing lessee and an informed and willing
lessor unaffiliated with such lessee, neither being under any compulsion to
lease. In such determination, it shall be assumed that the Aircraft is in the
condition required under the Lease in the case of return of the Aircraft
pursuant to Article 12 of the Lease and Fair Market Rental shall be determined
in accordance with the provisions of Section 4.03 of the Lease.
Fair Market Value. An amount determined on the basis of, and equal in
amount to, the value which would be obtained in an arm's-length transaction
between an informed and willing purchaser under no compulsion to buy and an
informed and willing seller unaffiliated with such purchaser and under no
compulsion to sell, assuming the Aircraft (or other property) is unencumbered
by the Lease. In such determination, except for purposes of Section 17.01 of
the Lease (when it shall be determined based upon the actual condition and
location of the Aircraft), it shall be assumed that the Aircraft is in the
condition required under the Lease in the case of return of the Aircraft
pursuant to Article 12 of the Lease and Fair Market Value shall be determined
in accordance with the provisions of Section 4.03 of the Lease.
Federal Aviation Administration; FAA. The United States Federal
Aviation Administration and any successor agency or agencies thereto.
Final Drawing. Has the meaning specified in Section 1.01 of the
Intercreditor Agreement.
Fixed Renewal Rent. Semi-annual payments of rent during the Fixed
Renewal Term equal to the lesser of (i) Fair Market Rental as determined as of
the commencement of such Fixed Renewal Term and (ii) 50% of the average actual
semi-annual Basic Rent payable during the Basic Term.
Fixed Renewal Term. The term with respect to which the Lessee has
exercised its option to renew the Lease pursuant to the first paragraph of
Section 4.01(a) thereof and with respect to which the conditions set forth in
such Section 4.01(a) are met.
FPO Price. Has the meaning set forth in Section 4.02(a)(F) of the
Lease.
French Pledge Agreement. The French Pledge Agreement dated as of May
1, 1997 between the Owner Trustee and the Indenture Trustee.
FSB. First Security Bank, National Association, a national banking
association.
Government. The United States of America or an agency or
instrumentality thereof the obligations of which bear the full faith and
credit of the United States of America.
GTA. The General Terms Agreement dated as of July 3, 1991 between the
Engine Manufacturer and the Lessee related to the purchase by the Lessee of the
Engines as originally executed or as modified, amended or supplemented in
accordance with the terms thereof, but only insofar as the General Terms
Agreement relates to the Engines, to the extent assigned to the Owner Trustee
pursuant to the Engine Warranty Assignment.
Holder of a Certificate; Certificate Holder; Holder. As of any
particular time, the Person in whose name a Certificate shall be registered
(but not including the holder of any Pass Through Certificate).
Indemnitee. Each of SSB, in its individual capacity and as Owner
Trustee and Lessor, the Subordination Agent, in its individual capacity and in
its capacity as Subordination Agent, each Liquidity Provider, the Owner
Participant, the Indenture Trustee, in its individual capacity and as trustee,
the Owner Participant Guarantor and any successor (including any trustee which
may succeed to the Lessor's interest under the Lease), Affiliate, assign,
officer, director, employee, agent and servant of any of the foregoing, the
Lessor's Estate and the Trust Indenture Estate. Neither the Pass Through
Trustee nor any holder of a Pass Through Certificate shall be deemed to be an
Indemnitee.
Indenture. The Trust Indenture and Security Agreement (Federal
Express Corporation Trust No. N673FE), dated as of May 1, 1997, between the
Lessor and the Indenture Trustee, as supplemented by the Indenture and
Security Agreement Supplement.
Indenture and Security Agreement Supplement. The Indenture and
Security Agreement Supplement No. 1 (Federal Express Corporation Trust No.
N673FE) to be dated the Delivery Date, substantially in the form of Exhibit A
to the Indenture.
Indenture Default. Any event or condition which, with the lapse of
time or the giving of notice, or both, would constitute an Indenture Event of
Default.
Indenture Documents. Has the meaning specified in the Granting
Clause of the Indenture.
Indenture Event of Default. Each of the events specified in Section
7.01 of the Indenture.
Indenture Trustee. First Security Bank, National Association, a
national banking association, not in its individual capacity but solely as
Indenture Trustee under the Indenture.
Indenture Trustee's Liens. Any Lien against, on or with respect to
the Aircraft, the Lessor's Estate or the Trust Indenture Estate or any part
thereof resulting from (i) claims against the Indenture Trustee not related to
the administration of the Trust Indenture Estate or any transactions pursuant
to the Indenture or any document included in the Trust Indenture Estate, (ii)
any act or omission of the Indenture Trustee which is not related to the
transactions contemplated by the Operative Agreements or is in violation of
any of the terms of the Operative Agreements or (iii) Taxes imposed against
the Indenture Trustee in its individual capacity in respect of which the Lessee
has not indemnified (and is not obligated to indemnify) the Indenture Trustee
in such capacity.
Independent Appraisal. An appraisal conducted pursuant to Section
4.03 of the Lease.
Independent Investment Banker. An independent investment banking
institution of national standing appointed by the Lessee that is independent
in fact, does not have any direct financial interests, or any material
indirect financial interest, in the Lessee or any Affiliate of the Lessee, and
is not connected with the Lessee or any Affiliate of the Lessee, as an
officer, employee, promoter, underwriter, trustee, partner, director or Person
performing similar functions; provided, that if the Indenture Trustee shall
not have received written notice of such an appointment at least 10 days prior
to the Prepayment Date, "Independent Investment Banker" shall mean such an
institution appointed by the Indenture Trustee.
Intercreditor Agreement. The Intercreditor Agreement dated as of May
1, 1997, among the Pass Through Trustee, the Class A Liquidity Provider, the
Class B Liquidity Provider and the Subordination Agent.
Interest Drawing. Has the meaning specified in Section 1.01 of the
Intercreditor Agreement.
Invoice. The invoice for the Aircraft given by AVSA to the Lessor.
Lease. The Lease Agreement (Federal Express Corporation Trust No.
N673FE) dated as of May 1, 1997, entered into by the Lessor and the Lessee
concurrently with the execution and delivery of the Indenture, including,
without limitation, supplementation by one or more Lease Supplements entered
into pursuant to the applicable provisions of the Lease.
Lease Supplement. The Lease Supplement No. 1 (Federal Express
Corporation Trust No. N673FE) to be dated the Delivery Date, substantially in
the form of Exhibit A to the Lease.
Lease Term. The period commencing on the Delivery Date and ending at
the end of the Basic Term.
Lessee. Federal Express Corporation, a Delaware corporation.
Lessee Documents. Has the meaning set forth in Section 6.01(b) of the
Participation Agreement.
Lessor. State Street Bank and Trust Company of Connecticut, National
Association, a national banking association, not in its individual capacity
but solely as Owner Trustee under the Trust Agreement.
Lessor's Estate. All estate, right, title and interest of the Owner
Trustee in and to the Collateral Account, the Liquid Collateral, the Aircraft,
the Lease, any Lease Supplement, the Participation Agreement, AVSA's FAA Bill
of Sale, AVSA's Warranty Bill of Sale, the Airbus Guaranty, the Purchase
Agreement, the Purchase Agreement Assignment, the Consent and Agreement, the
AVSA Consent and Agreement, the Consent and Guaranty (to the extent assigned
by the Purchase Agreement Assignment), any Ancillary Agreement, the GTA, the
Engine Warranty Assignment, the Engine Consent, any warranty with respect to
the Airframe and the Engines, all amounts of Basic Rent and Supplemental Rent,
including without limitation, insurance proceeds (other than insurance
proceeds payable to or for the benefit of the Owner Trustee in its individual
capacity or the Owner Participant) and requisition, indemnity or other
payments of any kind for or with respect to the Aircraft (except amounts owing
to the Owner Participant, to the Indenture Trustee, to the Owner Trustee in its
individual capacity, or to any of their respective directors, officers,
employees and agents pursuant to Articles 8 and 9 of the Participation
Agreement), and all other property of the Owner Trustee purportedly subjected
to the Lien of the Indenture by the Granting Clause thereof; provided that in
no event shall "Lessor's Estate" include any Excepted Payment.
Lessor's Liens. Liens against, on or with respect to the Aircraft,
the Lessor's Estate or the Trust Indenture Estate or any part thereof, title
thereto or any interest therein arising as a result of (i) claims against the
Lessor, in its individual capacity or as Owner Trustee, or the Owner
Participant, in each case not related to the transactions contemplated by the
Operative Agreements, (ii) acts or omissions of the Lessor in its individual
capacity or as Owner Trustee, and, in the case of the Lessor in its individual
capacity, arising from its gross negligence or willful misconduct or expressly
prohibited under the Operative Agreements and any act or omission of the Owner
Participant which is in violation of any of the terms of the Operative
Agreements, (iii) Taxes or Expenses imposed against the Lessor, in its
individual capacity or as Owner Trustee, Owner Participant, Lessor's Estate or
the trust created by the Trust Agreement which are not required to be
indemnified against by the Lessee pursuant to the Participation Agreement by
reason of Section 8.01(b) or 9.01(b) thereof and which are not required to be
indemnified against by the Lessee pursuant to the Tax Indemnity Agreement, or
(iv) claims against the Lessor or the Owner Participant arising from the
voluntary transfer by the Lessor or the Owner Participant of its interests in
the Aircraft other than a transfer of the Aircraft pursuant to Section 4.02(a)
or Article 10 or 11 of the Lease and other than a transfer pursuant to the
exercise of the remedies set forth in Article 17 of the Lease.
Lien. Any mortgage, pledge, lien, charge, encumbrance, lease or
security interest or other similar interest.
Liquid Collateral. All amounts and securities deposited from time to
time in the Collateral Account and all the products, investments, earnings and
proceeds of the foregoing, including, but not limited to, all proceeds of the
investment or conversion thereof, voluntary or involuntary, into cash,
Specified Investments or other property, all rights to payment of any and
every kind, and other forms of obligations, and instruments and other property
which at any time constitute all or part or are included in the proceeds of
any of the foregoing.
Liquidity Facility. Has the meaning specified in Section 1.01 of the
Intercreditor Agreement.
Liquidity Provider. Has the meaning specified in Section 1.01 of the
Intercreditor Agreement.
Losses. Has the meaning specified in Section 17.02(a) of the
Participation Agreement.
Loss Payee. Has the meaning specified in Section 13.02(b)(i) of the
Lease.
Majority in Interest of Certificate Holders. As of a particular date
of determination, the Holders of more than 50% of the aggregate unpaid
principal amount of all Certificates outstanding as of such date excluding for
purposes of this definition any Certificates held by (i) the Owner Trustee or
the Owner Participant or any interests of the Owner Participant unless all
Certificates then outstanding shall be held by the Owner Participant, (ii) the
Lessee or (iii) any Affiliate of any thereof.
Make-Whole Premium. An amount determined as of the day before the
applicable Prepayment Date (or date of purchase, as the case may be) which an
Independent Investment Banker determines to be equal to the excess, if any, of
(i) the present value of the remaining scheduled payments of such principal
amount or portion thereof and interest thereon (excluding interest accrued
from the immediately preceding Payment Date to such Prepayment Date or date of
purchase, as the case may be) to the Maturity of such Certificate in
accordance with generally accepted financial practices assuming a 360-day year
consisting of twelve 30-day months at a discount rate equal to the Treasury
Yield, all as determined by the Independent Investment Banker over (ii) the
outstanding principal amount of such Certificate plus accrued interest.
Manufacturer. Airbus Industrie G.I.E., a groupement d'interet
economique formed under the laws of France.
Maturity. With respect to any Certificate, the date on which the
final principal amount of such Certificate is scheduled to be due and payable.
Moody's. Moody's Investors Service, Inc.
Net Present Value of Rents. The net present value, as of the
Delivery Date, of Basic Rent set forth in Schedule II of the Lease, discounted
at a rate equal to the Debt Rate per annum compounded semi-annually.
Non-U.S. Person. Any Person other than a U.S. Person.
Obsolete Parts. Parts which are severable from the Aircraft in
accordance with clauses (ii) and (iii) of the proviso to Section 9.02(b) of
the Lease and the Lessee in good faith determines to be obsolete or no longer
suitable or appropriate for use on the Airframe or any Engine.
Officer's Certificate. When delivered pursuant to the Indenture, a
certificate signed by a Responsible Officer of the Lessee or the Owner
Trustee, as the case may be, and delivered to the Indenture Trustee. Each
such certificate shall include the statements provided for in Section 15.07 of
the Indenture.
Operative Agreements. The Participation Agreement, the Trust
Agreement, AVSA's FAA Bill of Sale, AVSA's Warranty Bill of Sale, the Airbus
Guaranty, the Purchase Agreement, the Purchase Agreement Assignment, the GTA,
the Engine Warranty Assignment, the French Pledge Agreement, the Lease, the
Lease Supplement, the Owner Participant Guaranty, the Owner Trustee Guaranty,
if any, any Ancillary Agreement entered into by or with the written consent of
the Indenture Trustee, which by its terms is an Operative Agreement, the
Certificates outstanding at the time of reference, the Indenture, the
Indenture and Security Agreement Supplement, the Consent and Agreement, the
AVSA Consent and Agreement, the Consent and Guaranty (to the extent assigned
by the Purchase Agreement Assignment), the Engine Consent, the Tax Indemnity
Agreement, each Liquidity Facility, the Intercreditor Agreement, the
Collateral Account Control Agreement and any Assignment and Assumption
Agreement.
Opinion of Counsel. When delivered pursuant to the Indenture, a
written opinion of legal counsel, who in the case of counsel (a) for the
Lessee may be (i) an attorney employed by the Lessee who is generally
empowered to deliver such written opinions, (ii) Davis Polk & Wardwell or a
successor firm or (iii) other counsel designated by the Lessee and reasonably
satisfactory to the Indenture Trustee and (b) for the Owner Trustee or the
Indenture Trustee, an attorney selected by such Person and, in the case of the
Owner Trustee, reasonably satisfactory to the Indenture Trustee.
Outstanding. When used with respect to Certificates, as of the date
of determination and subject to the provisions of Section 10.04 of the
Indenture, all Certificates theretofore executed and delivered under the
Indenture, with the exception of the following:
(i) Certificates theretofore cancelled by the Indenture Trustee or
delivered to the Indenture Trustee for cancellation pursuant to
Section 2.08 of the Indenture or otherwise;
(ii) Certificates for which prepayment money in the necessary amount
has been theretofore deposited with the Indenture Trustee in trust
for the Holders of such Certificates pursuant to Section 14.01 of the
Indenture; provided, that if such Certificates are to be prepaid,
notice of such prepayment has been duly given pursuant to the
Indenture or provision therefor satisfactory to the Indenture Trustee
has been made; and
(iii) Certificates in exchange for or in lieu of which other
Certificates have been executed and delivered pursuant to Article II
of the Indenture.
Owner Participant. The trustor originally named in the Trust
Agreement and any successor thereto, and any Person to which the Owner
Participant transfers, in accordance with the Trust Agreement, its right,
title and interest in and to the Operative Agreements and the Lessor's Estate.
Owner Participant Guarantor. Philip Morris Capital Corporation, a
Delaware corporation, and any other provider of an Owner Participant Guaranty.
Owner Participant Guaranty. The Owner Participant Guaranty dated the
Certificate Closing Date by the Owner Participant Guarantor in favor of the
Lessee, the Owner Trustee, the Indenture Trustee and the Pass Through Trustee,
and any guaranty delivered in compliance with Section 7.03(d) of the
Participation Agreement.
Owner Trustee. SSB, not in its individual capacity except as
otherwise expressly stated, but solely as Owner Trustee under the Trust
Agreement.
Owner Trustee Guarantor. The provider of an Owner Trustee Guaranty.
Owner Trustee Guaranty. Any guaranty delivered in compliance with
Section 11.01(b)(ii) of the Participation Agreement.
Owner's Economic Return. The Owner Participant's anticipated net
after-tax book yield and aggregate after-tax cash during the Basic Term
utilizing the multiple investment sinking fund method of analysis, computed on
the basis of the same methodology and assumptions as were utilized by the
Owner Participant in determining Basic Rent, Stipulated Loss Value and
Termination Value percentages, as the case may be, as such assumptions may be
adjusted for events which have been the basis of adjustments to Rent pursuant
to Section 3.04 of the Lease.
Participation Agreement. The Participation Agreement (Federal Express
Corporation Trust No. N673FE), dated as of May 1, 1997, among the Lessee, the
Owner Trustee not in its individual capacity except as otherwise expressly
provided therein, but solely as owner trustee, the Owner Participant, the
Indenture Trustee not in its individual capacity except as otherwise expressly
provided therein, but solely as indenture trustee, the Pass Through Trustee
not in its individual capacity except as otherwise expressly provided therein,
but solely as pass through trustee and the Subordination Agent not in its
individual capacity except as otherwise expressly provided therein, but solely
as subordination agent.
Parts. All appliances, parts, components, instruments, appurtenances,
accessories, furnishings and other equipment of whatever nature (other than
complete Engines or engines) which may from time to time be incorporated or
installed in or attached to the Airframe or any Engine or title to which
remains vested in the Lessor pursuant to Article 8 of the Lease.
Pass Through Agreement. The Pass Through Trust Agreement dated as of
May 1, 1997 between the Lessee and the Pass Through Trustee.
Pass Through Certificates. Any of the Pass Through Certificates,
1997-1-A, the Pass Through Certificates, 1997-1-B or the Pass Through
Certificates, 1997-1-C, in each case as issued by the related Pass Through
Trust; and "Pass Through Certificates" means all of the Pass Through
Certificates issued by each of the Pass Through Trusts.
Pass Through Closing Date. The Business Day on which the sale of the
Pass Through Certificates to the Underwriters pursuant to the Underwriting
Agreement takes place.
Pass Through Trust. The Federal Express Corporation 1997-1 Pass
Through Trust Class A, Federal Express Corporation 1997-1 Pass Through Trust
Class B and Federal Express Corporation 1997-1 Pass Through Trust Class C, in
each case formed pursuant to the related Series Supplement in accordance with
the Pass Through Agreement; and "Pass Through Trusts" means all of such Pass
Through Trusts.
Pass Through Trustee. First Security Bank, National Association, a
national banking association, in its capacity as Pass Through Trustee under
the Pass Through Agreement and each Pass Through Trust.
Past Due Rate. In respect of (A) any amount payable to the Owner
Participant or the Owner Trustee a rate per annum during the period from and
including the due date to but excluding the date on which such amount is paid
in full equal to 2% plus the Debt Rate and (B) any principal of or interest on
any Certificate or any other amount payable under the Indenture, any
Certificate or any other Operative Agreement that is not paid when due
(whether at Maturity, by acceleration, by optional or mandatory prepayment or
otherwise) to any Holder, the Indenture Trustee or the Pass Through Trustee, a
rate per annum during the period from and including the due date to but
excluding the date on which such amount is paid in full equal to (i) in the
case of any such amount payable to the Holder of any Certificate, 2% plus the
interest rate applicable to such Certificate and (ii) in the case of any other
such amount, 2% plus the Debt Rate.
Payment Date. Each January 15 and July 15 commencing on July 15,
1997.
Payment Default. Any event specified in Section 16.01(a) or 16.01(b)
of the Lease which with the giving of notice or lapse of time or both would
constitute an Event of Default.
Permitted Investments. Those investments enumerated in Section
23.01(a) (i), (ii), (iii) and (iv) of the Lease.
Person. Any individual, sole proprietorship, partnership, joint
venture, joint stock company, trust, unincorporated organization, association,
corporation, institution, entity or government (federal, state, local,
foreign or any agency, instrumentality, division or body thereof).
Preliminary Notice. Has the meaning specified in Section 4.01(a) of
the Lease.
Premium Termination Date. With respect to the Series A Certificates,
December 27, 2011, with respect to the Series B Certificates, February 5, 2010
and with respect to the Series C Certificates, March 22, 2007.
Prepayment Date. Has the meaning specified in Section 6.02(b) of the
Indenture.
Prepayment Price. Has the meaning specified in Section 6.02(b) of the
Indenture.
Principal Amount. With respect to a Certificate means the stated
original principal amount of such Certificate and, with respect to all
Certificates, means the aggregate stated original principal amounts of all
Certificates.
Property. Any right or interest in or to property of any kind
whatsoever, whether real, personal or mixed and whether tangible or intangible.
Proposed Termination Date. The proposed date of termination of the
Lease as specified by the Lessee in its notice given pursuant to Section 10.01
thereof.
Purchase Agreement. The Airbus A300-600R Freighter Purchase Agreement,
dated as of July 3, 1991 between AVSA and the Lessee, including all exhibits,
appendices and letter agreements attached thereto as originally executed or as
modified, amended or supplemented in accordance with the terms thereof, but
only to the extent that the foregoing relates to the Aircraft and to the
extent assigned pursuant to the Purchase Agreement Assignment.
Purchase Agreement Assignment. The Purchase Agreement Assignment
(Federal Express Corporation Trust No. N673FE), dated as of May 1, 1997 between
the Lessor and the Lessee.
Purchase Price. Has the meaning specified in Ancillary Agreement II.
Record Date. With respect to Payment Dates under the Indenture
(except a date for payment of defaulted interest), December 31 for January 15
Payment Dates and June 30 for July 15 Payment Dates, whether or not such date
is a Business Day.
Recourse Amount. Has the meaning specified in Section 17.10 of the
Participation Agreement.
Refinancing. A non-recourse loan to the Lessor arranged pursuant to
Section 15.01 of the Participation Agreement.
Register. Has the meaning set forth in Section 3.02 of the Indenture.
Registrar. Has the meaning set forth in Section 3.02 of the
Indenture.
Regulation D. Regulation D of the Board of Governors of the Federal
Reserve System (or any successor), as the same may be modified and
supplemented and in effect from time to time.
Related Indentures. Collectively, the Trust Indenture and Security
Agreement for each of Federal Express Corporation Trust Nos. N670FE, N671FE,
N672FE, N674FE, N583FE and N584FE, each dated as of May 1, 1997, between the
Owner Trustee and the Indenture Trustee, the Trust Indenture and Security
Agreement for Federal Express Corporation Trust No. N581FE, dated as of May 1,
1997, between Wilmington Trust Company, as owner trustee and the Indenture
Trustee, and the Trust Indenture and Security Agreement for Federal Express
Corporation Trust No. N587FE, dated as of December 1, 1996, as amended and
restated as of May 1, 1997, between Wilmington Trust Company, as owner trustee
and the Indenture Trustee.
Remaining Weighted Average Life. On a given date with respect to any
Certificate the number of days equal to the quotient obtained by dividing (i)
the sum of each of the products obtained by multiplying (a) the amount of each
then remaining scheduled payment of principal of such Certificate by (b) the
number of days from and including such prepayment date to but excluding the
dates on which each such payment of principal is scheduled to be made; by (ii)
the then outstanding principal amount of such Certificate.
Renewal Rent. The amount payable by the Lessee as rent in accordance
with Section 4.01 of the Lease during any Renewal Term.
Renewal Term. One or more terms with respect to which the Lessee has
exercised its option to renew the Lease pursuant to Section 4.01(a) thereof.
Rent. All payments due from the Lessee under the Lease as Basic Rent,
Renewal Rent and Supplemental Rent, collectively.
Rent Payment Date. December 11, 2020 and each January 15 and July 15
commencing on January 15, 1998.
Reoptimization Date. Has the meaning specified in Section 15.02(a)
of the Participation Agreement.
Replacement Aircraft. Any aircraft substituted for the Aircraft
pursuant to Section 11.03(a) of the Lease.
Replacement Airframe. Has the meaning set forth in Section 11.03 of
the Lease.
Replacement Engine. A General Electric CF6-80C2-A5F engine (or an
engine of the same or another manufacturer) of equal or greater value,
airworthiness, remaining useful life and utility as the Engine being replaced,
together with all Parts relating to such engine; provided, however, that if
such replacement engine is not a General Electric CF6-80C2-A5F engine, such
replacement engine must then be commonly used in the commercial aviation
industry on Airbus A300-600 airframes.
Responsible Officer. With respect to the Owner Trustee (except for
purposes of the Trust Agreement in which case the definition of Responsible
Officer set forth in Section 3.10 of the Trust Agreement is applicable) or the
Indenture Trustee, any officer in its Corporate Trust Administration, as the
case may be, designated by such Person to perform obligations under the
Operative Agreements, and with respect to any other party, any corporate
officer or (except in the case of the Owner Participant) other employee of a
party who, in the normal performance of his or her operational
responsibilities, with respect to the subject matter of any covenant,
agreement or obligation of such party pursuant to any Operative Agreement,
would have responsibility for and knowledge of such matter and the
requirements of any Operative Agreement with respect thereto.
S&P. Standard & Poor's Ratings Group.
Scheduled Delivery Date. The Delivery Date specified in the Delivery
Notice pursuant to Section 3.01 of the Participation Agreement.
SEC. The Securities and Exchange Commission of the United States and
any successor agencies or authorities.
Secured Obligations. Has the meaning specified in the Granting
Clause of the Indenture.
Securities Act. The Securities Act of 1933, as amended.
Series "A" or "Series A Certificates". Certificates issued and
designated as "Series A" under the Indenture, in the Principal Amount and
maturities and bearing interest as specified in Exhibit B to the Indenture
under the heading "Series A".
Series "B" or "Series B Certificates". Certificates issued and
designated as "Series B" under the Indenture, in the Principal Amount and
maturities and bearing interest as specified in Exhibit B to the Indenture
under the heading "Series B".
Series "C" or "Series C Certificates". Certificates issued and
designated as "Series C" under the Indenture, in the Principal Amount and
maturities and bearing interest as specified in Exhibit B to the Indenture
under the heading "Series C".
Series Supplement or Series Supplements. The Series Supplement
1997-1-A to be executed and delivered by the Lessee and the Pass Through
Trustee, the Series Supplement 1997-1-B to be executed and delivered by the
Lessee and the Pass Through Trustee or the Series Supplement 1997-1-C to be
executed and delivered by the Lessee and the Pass Through Trustee.
Sinking Fund Redemption Date. Has the meaning specified in Section
6.06 of the Indenture.
Sinking Fund Redemption Price. Has the meaning specified in Section
6.06 of the Indenture.
Special Aviation Counsel. Daugherty, Fowler & Peregrin.
Specified Investments. Shall mean (a) direct obligations of the
United States of America or obligations fully guaranteed by the United States
of America; (b) commercial paper rated A-1/P-1 by S&P and Moody's,
respectively or, if such ratings are unavailable, rated by any nationally
recognized rating organization in the United States equal to the highest
rating assigned by such rating organization; (c) investments in negotiable
certificates of deposit, time deposits, banker's acceptances, commercial paper
or other direct obligations of, or obligations guaranteed by, commercial banks
organized under the laws of the United States or of any political subdivision
thereof (or any U.S. branch of a foreign bank) with issuer ratings of at least
B/C by Thomson Bankwatch, having maturities no later than 90 days following
the date of such investment; (d) overnight federal funds transactions with
members of the Federal Reserve System arranged by federal funds brokers; or
(e) overnight repurchase agreements with respect to the securities described
in clause (a) above entered into with an office of a bank or trust company
which is located in the United States of America or any bank or trust company
which is organized under the laws of the United States or any state thereof
and has capital, surplus and undivided profits aggregating at least $500
million.
SSB. State Street Bank and Trust Company of Connecticut, National
Association, a national banking association.
Stipulated Loss Value. As of any Stipulated Loss Value Determination
Date during the Basic Term, the amount determined by multiplying the Purchase
Price by the percentage set forth in Schedule III of the Lease under the
heading "Stipulated Loss Value Factor" opposite such date (as such Schedule
III may be adjusted from time to time as provided in Section 3.04 of the
Lease), and during any Renewal Term, the amount determined pursuant to Section
4.01(b) of the Lease. Notwithstanding any other provisions of the Lease or
the Participation Agreement or the Indenture, each Stipulated Loss Value for
the Aircraft shall be, under any circumstances and in any event, an amount,
together with so much of the arrears portion of Basic Rent due and owing
through the date of payment of Stipulated Loss Value as does not constitute an
Excepted Payment, at least sufficient to pay in full as of such date of
payment the aggregate unpaid principal amount of and accrued interest on the
Certificates outstanding on such date of payment. Subject to the immediately
preceding sentence, it is understood and agreed that the amounts set forth on
Schedule III of the Lease, for dates other than Rent Payment Dates on which
arrears Basic Rent is due, fully reflect appropriate Basic Rent accruals and
credits of unearned Basic Rent through such date and, accordingly, no further
accrual or credit shall be required through such date whenever Stipulated Loss
Value is to be calculated with reference to any such date; provided that if
amounts in respect of Stipulated Loss Value are payable under the Operative
Agreements after the Stipulated Loss Determination Date in respect of which
such Stipulated Loss Value was determined, the Lessor shall be compensated
during the period from the Stipulated Loss Determination Date to such payment
date in accordance with the provisions of the Operative Agreements.
Stipulated Loss Value Determination Date. Each date set forth on
Schedule III of the Lease.
Subordination Agent. First Security Bank, National Association, a
national banking association, not in its individual capacity but solely as
Subordination Agent.
Supplemental Rent. (a) All amounts, liabilities and obligations
which the Lessee assumes or agrees to perform or pay under the Lease or under
the Participation Agreement or Tax Indemnity Agreement or any Ancillary
Agreement or any other Operative Agreement to the Lessor, the Owner
Participant, the Indenture Trustee, the Subordination Agent, any Liquidity
Provider or others, including, without limitation, payments of Stipulated Loss
Value, FPO Price and amounts calculated by reference to Termination Value, any
amounts of Make-Whole Premium payable under the Indenture to the extent
provided in Section 3.03 of the Lease, and all amounts required to be paid by
Lessee under the agreements, covenants and indemnities contained in the Lease
or in the Participation Agreement or the Tax Indemnity Agreement or any other
Operative Agreement, but excluding Basic Rent and (b) all amounts that the
Owner Trustee is obligated to pay in accordance with clause (b) of the last
paragraph of Section 2.04 of the Indenture.
Tax. Has the meaning set forth in Section 8.01(a) of the
Participation Agreement.
Tax Indemnity Agreement. The Tax Indemnity Agreement (Federal
Express Corporation Trust No. N673FE), dated as of May 1, 1997, between the
Lessee and the Owner Participant.
Term. The Basic Term of the lease for the Aircraft under the Lease
and, if renewed pursuant to Section 4.01 of the Lease, each Renewal Term for
the Aircraft for which the Lease is renewed, or such earlier date on which the
Lease is terminated pursuant to its terms.
Termination Date. A Rent Payment Date during the Basic Term that is
on or after December 31, 2004 in the case of Article 10 of the Lease, and in
the case of (i) Section 4.02(a)(A) of the Lease, the Rent Payment Date falling
on January 15, 2016, (ii) Section 4.02(a)(D) or (E) of the Lease, a Rent
Payment Date that is on or after the seventh anniversary of the Delivery Date
and (iii) Section 4.02(a)(F) of the Lease, the last day of the Basic Term.
Termination Value. As of any Termination Date, the amount determined
by multiplying the Purchase Price by the percentage set forth in Schedule IV
of the Lease under the heading "Termination Value Factor" opposite such
Termination Date (as such Schedule IV may be adjusted from time to time as
provided in Section 3.04 of the Lease). Notwithstanding any other provisions
of the Lease, the Participation Agreement or the Indenture, each Termination
Value shall be, under any circumstances and in any event, an amount, together
with so much of the arrears portion of Basic Rent due and owing through the
date of payment of any amount calculated by reference to Termination Value as
does not constitute an Excepted Payment, at least sufficient to pay in full as
of such date of payment the aggregate unpaid principal amount of and accrued
interest on the Certificates outstanding on such date of payment. Subject to
the immediately preceding sentence, it is understood and agreed that the
amounts set forth on Schedule IV of the Lease, for dates other than Rent
Payment Dates on which arrears Basic Rent is due, fully reflect appropriate
Basic Rent accruals and credits of unearned Basic Rent through such date and,
accordingly, no further accrual or credit shall be required through such date
whenever Termination Value is to be calculated with reference to any such
date; provided that if amounts in respect of Termination Value are payable
under the Operative Agreements after the Termination Date in respect of which
such Termination Value was determined, the Lessor shall be compensated during
the period from the Termination Date to such payment date in accordance with
the provisions of the Operative Agreements.
Transaction Costs. Those costs and expenses set forth in Section
10.01(a) of the Participation Agreement.
Transportation Code. Title 49 of the United States Code, as amended
and in effect on the date of the Lease or as subsequently amended, or any
successor or substituted legislation at the time in effect and applicable, and
the regulations promulgated pursuant thereto.
Treasury Yield. At the time of determination with respect to any
Certificate, the interest rate (expressed as a semi-annual equivalent and as a
decimal and, in the case of United States Treasury bills, converted to a bond
equivalent yield) determined to be the per annum rate equal to the semi-annual
yield to maturity for United States Treasury securities maturing on the
Average Life Date on such Certificate and trading in the public securities
markets either as determined by interpolation between the most recent weekly
average yield to maturity for two series of United States Treasury securities,
trading in public securities markets, (i) one maturing as close as possible to,
but earlier than, the Average Life Date of such Certificate and (ii) the other
maturing as close as possible to, but later than, the Average Life Date of
such Certificate. In each case as published in the most recent H.15(519) or,
if a weekly average yield to maturity for United States Treasury securities
maturing on the Average Life Date of such Certificate is reported on the most
recent H.15 (519), such weekly average yield to maturity as published in such
H.15(919). "H.15(519)" means the weekly statistical release designated as
such, or any successor publication, published by the Board of Governors of the
Federal Reserve System. The date of determination of a Make-Whole Premium
will be the third Business Day prior to the applicable prepayment date and the
"most recent H.15(519)" means the H.15(519) published prior to the close of
business on the third Business Day prior to the applicable prepayment date.
Trust Agreement. The Trust Agreement (Federal Express Corporation
Trust No. N673FE), dated as of May 1, 1997, between the Owner Participant and
the Owner Trustee in its individual capacity.
Trust Estate. The Lessor's Estate.
Trust Indenture Act. The Trust Indenture Act of 1939, as amended.
Trust Indenture Estate. All estate, right, title and interest of the
Indenture Trustee in and to any of the property, rights, interests and
privileges granted to the Indenture Trustee pursuant to the Granting Clause of
the Indenture, other than Excepted Payments and any and all other rights of
the Owner Trustee or the Owner Participant expressly reserved to the Owner
Trustee or the Owner Participant pursuant to the Indenture.
Underwriters. Morgan Stanley & Co. Incorporated, First Chicago
Capital Markets, Inc., Goldman, Sachs & Co. and J.P. Morgan & Co.
Underwriting Agreement. The Underwriting Agreement dated May 22, 1997
among the Lessee and the Underwriters.
United States, U.S. or US. The United States of America.
U.S. Air Carrier. Any United States air carrier as to which there is
in force a certificate issued pursuant to Section 41102(a) or Section 41103 of
the Transportation Code, and as to which there is in force an air carrier
operating certificate issued pursuant to Chapter 447 of the Transportation
Code and Part 121 of the regulations under such Transportation Code, for
aircraft capable of carrying ten (10) or more individuals or 6,000 pounds or
more of cargo, or which may operate as an air carrier by certification or
otherwise under any successor or substitute provision thereof or in absence
thereof.
U.S. Person. A Person described in Section 7701(a)(30) of the Code.
SCHEDULE III
PERMITTED COUNTRY LIST
Australia Luxembourg
Austria Netherlands
Belgium New Zealand
Canada Norway
Denmark Philippines
Finland Portugal
France Republic of China (Taiwan)
Germany Singapore
Greece Sweden
Iceland Switzerland
Ireland Thailand
Japan United Kingdom
SCHEDULE IV
DEBT PORTION
Debt Portion $61,813,000
- ------------
EXHIBIT A(1)(a)(i)
[Letterhead of Federal Express]
[Certificate Closing Date]
To the Addressees Listed on Schedule A Attached
Re: Federal Express Corporation Trust No. N673FE
Ladies and Gentlemen:
I am the Vice President - Law of Federal Express
Corporation, a Delaware corporation ("Federal"), and am familiar with the
transactions contemplated by the Participation Agreement (Federal Express
Corporation Trust No. N673FE), dated as of May 1, 1997 (the "Participation
Agreement"), among Federal, as Lessee, PMCC Leasing Corporation, as Owner
Participant, State Street Bank and Trust Company of Connecticut, National
Association, not in its individual capacity, except as otherwise stated,
but solely as Owner Trustee, and First Security Bank, National Association,
not in its individual capacity, except as otherwise stated, but solely as
Indenture Trustee, Pass Through Trustee and Subordination Agent, relating
to the Aircraft. This opinion is being delivered pursuant to Section
4.01(k)(i) of the Participation Agreement. Capitalized terms not otherwise
defined herein have the meanings assigned thereto in the Participation
Agreement.
The Participation Agreement provides, among other things,
for the financing on the Delivery Date of a portion of the Owner Trustee's
payment of the Purchase Price of one Airbus A300F4-605R aircraft (the
"Aircraft"), using the proceeds from the public offering of the Pass
Through Certificates. Three Classes of Pass Through Certificates will be
issued by three Pass Through Trusts formed to acquire, among other
securities, the Certificates bearing a particular interest rate and having
a particular Maturity that will be issued under the Indenture.
In connection with the opinions expressed below, I have
examined or caused to be examined by attorneys under my supervision, (i)
executed counterparts of the Pass Through Agreement, the Series Supplements
and the Operative Agreements to be delivered on the Certificate Closing
Date (the "Certificate Closing Date Documents") and (ii) the forms of the
Operative Agreements to be delivered on the Delivery Date. We have relied
upon originals or copies, certified or otherwise identified to our
satisfaction, of such corporate records, documents and other instruments as
in our judgment are relevant to rendering the opinions expressed below. As
to any facts material to the opinions expressed below (other than any
thereof relating to Federal), we have relied upon the representations and
warranties made in the Certificate Closing Date Documents, the accuracy of
which we have not independently investigated or verified. In such
examination, we have assumed the genuineness of all signatures (other than
the signatures of Federal) and the authenticity of all documents submitted
to us as originals and the conformity with the originals of all documents
submitted to us as copies. We have also assumed that each of the parties
to each of the Certificate Closing Date Documents, other than Federal, has
full power, authority and legal right to enter into such Certificate
Closing Date Documents and that each such Certificate Closing Date Document
has been duly authorized, executed and delivered by each of such parties.
Based on the foregoing, it is my opinion that:
1. Federal is a corporation duly incorporated, validly
existing and in good standing under the laws of the State of Delaware, is a
"citizen of the United States" within the meaning of Section 40102(a)(15)
of the Transportation Code, and has or had, on the date of execution
thereof, the corporate power and authority to carry on its business as
currently conducted and to enter into and perform its obligations under the
Certificate Closing Date Documents to which it is a party. Federal is duly
qualified to do business and is in good standing in the State of Tennessee
and each other state of the United States in which its operations or the
nature of its business requires Federal to so qualify, except where the
failure to so qualify would not have a material adverse impact on Federal
or its business.
2. Federal possesses all necessary certificates,
franchises, licenses, permits, rights and concessions and consents which
are material to the operation of the routes flown by it and the conduct of
its business and operations as currently conducted, and each such
certificate, franchise, license, permit, right and concession and consent
is in full force and effect.
3. Each of the Certificate Closing Date Documents to which
Federal is a party has or had, on the date of execution thereof, been duly
authorized, executed and delivered by Federal and each constitutes the
legal, valid and binding obligation of Federal enforceable against Federal
in accordance with its terms. Each of the Certificate Closing Date
Documents to which Federal is to be a party and which are to be executed on
the Delivery Date has been duly authorized by Federal.
4. Neither the execution and delivery by Federal of the
Certificate Closing Date Documents to which Federal is a party, nor the
consummation of any of the transactions by Federal contemplated thereby,
nor the performance of the obligations thereunder by Federal, did at the
time of execution and delivery, or does presently (a) require any
stockholder approval or violate the certificate of incorporation or by-laws
of Federal or (b) conflict with or contravene the provisions of, or
constitute a default under, or result in the creation of any Lien (other
than Liens permitted under Section 6.01(a) of the Lease) upon the property
of Federal under any law, governmental rule or regulation, or the charter
or bylaws of Federal or any order, writ, injunction or decree of any court
or governmental authority against Federal or by which any of its properties
may be bound or any indenture, mortgage, contract or other agreement known
to me to which Federal is a party or by which it may be bound or, require
the approval or consent of any trustee or the holders of any indebtedness
or obligations of Federal.
5. Neither the execution and delivery by Federal of the
Certificate Closing Date Documents to which it is a party, nor the
consummation of any transactions by Federal contemplated thereby, nor the
performance of the obligations thereunder by Federal, did or does, as the
case may be, (a) require the consent or approval of, the giving of notice
to, or (except as described or contemplated in the Participation Agreement
and the Lease, all of which are required to be performed on or prior to the
Certificate Closing Date and which shall have been accomplished on or prior
to the Certificate Closing Date) the registration with, or the taking of
any other action in respect of, the Aeronautics Authority, the Securities
and Exchange Commission or any other authority or agency of the federal
government or of the State of Tennessee other than (i) the registration of
the issuance and sale of the Pass Through Certificates under the Securities
Act and (ii) compliance with the securities laws of each applicable state,
or (b) contravene any judgment or order applicable to or binding on Federal
or any law or governmental rule or regulation of the United States or of
the State of Tennessee.
6. There is no pending, or to my knowledge, threatened
action or proceeding before any court or administrative agency which
individually (or in the aggregate in the case of any group of related
lawsuits) is expected to have a material adverse effect on (A) the
financial condition of Federal, except for the matters described (a) under
"Legal Proceedings" in Federal's Annual Report on Form 10-K for the fiscal
year ended May 31, 1996 (as updated by Note 7 to the financial statements
included in Federal's Quarterly Reports on Form 10-Q for the fiscal
quarters ended August 31, 1996, November 30, 1996 and February 28, 1997)
and (b) in Federal's Current Reports on Form 8-K dated June 7, 1996, August
16, 1996 and March 4, 1997, as to which I can express no opinion at this
time concerning Federal's liability (if any) or the effect of any adverse
determination upon the business, condition (financial or otherwise) or
operations of Federal or (B) the ability of Federal to perform its
obligations under the Certificate Closing Date Documents.
7. Federal is a duly certificated "air carrier" within the
meaning of the Transportation Code, and a holder of a certificate under
Sections 41102(a) and 41103 of the Transportation Code, and an "air carrier
operating certificate" issued under Chapter 447 of the Transportation Code
for aircraft capable of carrying ten (10) or more individuals or 6,000
pounds or more of cargo, and each such certificate is in full force and
effect.
8. Federal's principal place of business and chief
executive office (as such term is defined in the Uniform Commercial Code in
effect in the State of Tennessee) are located at 2005 Corporate Avenue,
Memphis, Shelby County, Tennessee.
9. Federal is not, and is not directly or indirectly
controlled by or acting on behalf of any Person which is, an "investment
company" within the meaning of the Investment Company Act of 1940, as
amended.
The opinions expressed in paragraph 3 above as to the
enforceability of the Certificate Closing Date Documents to which Federal
is a party are based upon the assumption for purposes of such opinions and
without independent analysis that, notwithstanding the respective choice of
laws clauses in the Certificate Closing Date Documents, the governing law
with respect to each of the Certificate Closing Date Documents is identical
in all relevant respects to the law of the State of Tennessee. Insofar as
the foregoing opinion relates to the enforceability of any instrument, such
enforceability is subject to applicable bankruptcy, insolvency and other
similar laws affecting the enforcement of creditors' rights generally
(whether such enforceability is considered in a proceeding in equity or at
law). The enforceability of the remedies provided under the Lease may also
be limited by applicable laws which may affect the remedies provided
therein but which do not in my opinion affect the validity of the Lease or
make such remedies inadequate for the practical realization of the benefits
intended to be provided thereby.
I do not express any opinion as to matters governed by any
law other than the Federal laws of the United States of America, the
corporation law of the State of Delaware and the laws of the State of
Tennessee.
This opinion is delivered to you solely for your use in
connection with the transaction described herein, and may not be used for
any other purpose, and may not be relied upon by any other person, without
my prior written consent.
George W. Hearn
SCHEDULE A
Owner Trustee
State Street Bank and Trust Company
of Connecticut, National Association
Two International Place
4th Floor
Boston, Massachusetts 02110
Indenture Trustee, Pass Through Trustee & Subordination Agent
First Security Bank, National Association
79 South Main Street
Salt Lake City, Utah 84111
Owner Participant
PMCC Leasing Corporation
200 First Stamford Place
Stamford, Connecticut 06902
Underwriters
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
First Chicago Capital Markets, Inc.
Corporate Securities
One First National Plaza
Chicago, Illinois 60670
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
J.P. Morgan & Co.
60 Wall Street
New York, New York 10260
Liquidity Provider
Kredietbank N.V., New York Branch
125 West 55th Street
New York, New York 10019
EXHIBIT A(1)(a)(ii)
[Letterhead of Federal Express]
[Delivery Date]
To the Addressees Listed on Schedule A Attached
Re: Federal Express Corporation Trust No. N673FE
Ladies and Gentlemen:
I am the Vice President - Law of Federal Express
Corporation, a Delaware corporation ("Federal"), and am familiar with the
transactions contemplated by the Participation Agreement (Federal Express
Corporation Trust No. N673FE), dated as of May 1, 1997 (the "Participation
Agreement"), among Federal, as Lessee, PMCC Leasing Corporation, as Owner
Participant, State Street Bank and Trust Company of Connecticut, National
Association, not in its individual capacity, except as otherwise stated,
but solely as Owner Trustee, and First Security Bank, National Association,
not in its individual capacity, except as otherwise stated, but solely as
Indenture Trustee, Pass Through Trustee and Subordination Agent, relating
to the Aircraft. This opinion is being delivered pursuant to Section
4.02(d)(i) of the Participation Agreement. Capitalized terms not otherwise
defined herein have the meanings assigned thereto in the Participation
Agreement.
The Participation Agreement provides, among other things,
for the financing on the Delivery Date of a portion of the Owner Trustee's
payment of the Purchase Price of one Airbus A300F4-605R aircraft (the
"Aircraft"), using the proceeds from the public offering of the Pass
Through Certificates. Three Classes of Pass Through Certificates were
issued by three Pass Through Trusts formed to acquire, among other
securities, the Certificates bearing a particular interest rate and having
a particular Maturity that were issued under the Indenture, as supplemented
by the related Indenture and Security Agreement Supplement.
In connection with the opinions expressed below, I have
examined or caused to be examined by attorneys under my supervision,
executed counterparts of the Operative Agreements, the Pass Through
Agreement and each Series Supplement (the "Transaction Agreements"). We
have relied upon originals or copies, certified or otherwise identified to
our satisfaction, of such corporate records, documents and other
instruments as in our judgment are relevant to rendering the opinions
expressed below. As to any facts material to the opinions expressed below
(other than any thereof relating to Federal), we have relied upon the
representations and warranties made in the Transaction Agreements, the
accuracy of which we have not independently investigated or verified. In
such examination, we have assumed the genuineness of all signatures (other
than the signatures of Federal) and the authenticity of all documents
submitted to us as originals and the conformity with the originals of all
documents submitted to us as copies. We have also assumed that each of the
parties to each of the Transaction Agreements, other than Federal, has full
power, authority and legal right to enter into such Transaction Agreements
and that each such Transaction Agreement has been duly authorized, executed
and delivered by each of such parties.
Based on the foregoing, it is my opinion that:
1. Federal is a corporation duly incorporated, validly
existing and in good standing under the laws of the State of Delaware, is a
"citizen of the United States" within the meaning of Section 40102(a)(15)
of the Transportation Code, and has or had, on the date of execution
thereof, the corporate power and authority to carry on its business as
currently conducted and to enter into and perform its obligations under the
Transaction Agreements to which it is a party. Federal is duly qualified
to do business and is in good standing in the State of Tennessee and each
other state of the United States in which its operations or the nature of
its business requires Federal to so qualify, except where the failure to so
qualify would not have a material adverse impact on Federal or its
business.
2. Federal possesses all necessary certificates,
franchises, licenses, permits, rights and concessions and consents which
are material to the operation of the routes flown by it and the conduct of
its business and operations as currently conducted, and each such
certificate, franchise, license, permit, right and concession and consent
is in full force and effect.
3. Each of the Transaction Agreements to which Federal is a
party has or had, on the date of execution thereof, been duly authorized,
executed and delivered by Federal and each constitutes the legal, valid and
binding obligation of Federal enforceable against Federal in accordance
with its terms.
4. Neither the execution and delivery by Federal of the
Transaction Agreements to which Federal is a party, nor the consummation of
any of the transactions by Federal contemplated thereby, nor the
performance of the obligations thereunder by Federal, did at the time of
execution and delivery, or does presently (a) require any stockholder
approval or violate the certificate of incorporation or by-laws of Federal
or (b) conflict with or contravene the provisions of, or constitute a
default under, or result in the creation of any Lien (other than Liens
permitted under Section 6.01(a) of the Lease) upon the property of Federal
under any law, governmental rule or regulation, or the charter or bylaws of
Federal or any order, writ, injunction or decree of any court or
governmental authority against Federal or by which any of its properties
may be bound or any indenture, mortgage, contract or other agreement known
to me to which Federal is a party or by which it may be bound or, require
the approval or consent of any trustee or the holders of any indebtedness
or obligations of Federal.
5. Neither the execution and delivery by Federal of the
Transaction Agreements to which it is a party, nor the consummation of any
transactions by Federal contemplated thereby, nor the performance of the
obligations thereunder by Federal, did or does, as the case may be, (a)
require the consent or approval of, the giving of notice to, or (except as
described or contemplated in the Participation Agreement and the Lease, all
of which were or are required to be performed on or prior to the Delivery
Date and which were or shall have been accomplished on or prior to the
Delivery Date) the registration with, or the taking of any other action in
respect of, the Aeronautics Authority, the Securities and Exchange
Commission or any other authority or agency of the federal government or of
the State of Tennessee other than (i) the registration of the issuance and
sale of the Pass Through Certificates under the Securities Act, (ii)
compliance with the securities laws of each applicable state and (iii) the
filings and recordings referred to in paragraph 7 below, or (b) contravene
any judgment or order applicable to or binding on Federal or any law or
governmental rule or regulation of the United States or of the State of
Tennessee.
6. There is no pending, or to my knowledge, threatened
action or proceeding before any court or administrative agency which
individually (or in the aggregate in the case of any group of related
lawsuits) (i) is expected to have a material adverse effect on (A) the
financial condition of Federal, except for the matters described (a) under
"Legal Proceedings" in Federal's Annual Report on Form 10-K for the fiscal
year ended May 31, 1996 (as updated by Note 7 to the financial statements
included in Federal's Quarterly Reports on Form 10-Q for the fiscal
quarters ended August 31, 1996, November 30, 1996 and February 28, 1997)
and (b) in Federal's Current Reports on Form 8-K dated June 7, 1996, August
16, 1996 and March 4, 1997, as to which I can express no opinion at this
time concerning Federal's liability (if any) or the effect of any adverse
determination upon the business, condition (financial or otherwise) or
operations of Federal or (B) the ability of Federal to perform its
obligations under the Transaction Agreements, or (ii) involves the
Aircraft.
7. Except for the registration in the Owner Trustee's name
of the Aircraft pursuant to the Transportation Code, and except for the
filing and, where appropriate, recording, pursuant to the Transportation
Code of (A) AVSA's FAA Bill of Sale, (B) the Trust Agreement, (C) the
Lease (with the Lease Supplement covering the Aircraft, the Indenture and
the Indenture and Security Agreement Supplement covering the Aircraft
attached as exhibits) and (D) the Indenture (with the Indenture and
Security Agreement Supplement covering the Aircraft attached as an
exhibit), no further action, including any filing or recording of any
document is necessary or advisable in order to establish and perfect the
Owner Trustee's title to and interest in the Aircraft as against Federal
and any third parties, or to perfect the first mortgage lien on the
Aircraft in favor of the Indenture Trustee in each case with respect to
such portion of the Aircraft as is covered by the recording system
established by the Transportation Code.
8. Federal is a duly certificated "air carrier" within the
meaning of the Transportation Code, and a holder of a certificate under
Sections 41102(a) and 41103 of the Transportation Code, and an "air carrier
operating certificate" issued under Chapter 447 of the Transportation Code
for aircraft capable of carrying ten (10) or more individuals or 6,000
pounds or more of cargo, and each such certificate is in full force and
effect.
9. On the date hereof the Owner Trustee received good and
valid title to the Aircraft free and clear of all Liens on file with the
FAA, except for Liens permitted under Section 6.01(a) of the Lease.
10. Federal's principal place of business and chief
executive office (as such term is defined in the Uniform Commercial Code in
effect in the State of Tennessee) are located at 2005 Corporate Avenue,
Memphis, Shelby County, Tennessee.
11. Federal is not, and is not directly or indirectly
controlled by or acting on behalf of any Person which is, an "investment
company" within the meaning of the Investment Company Act of 1940, as
amended.
The opinions expressed in paragraph 3 above as to the
enforceability of the Transaction Agreements to which Federal is a party
are based upon the assumption for purposes of such opinions and without
independent analysis that, notwithstanding the respective choice of laws
clauses in the Transaction Agreements, the governing law with respect to
each of the Transaction Agreements is identical in all relevant respects to
the law of the State of Tennessee. Insofar as the foregoing opinion
relates to the enforceability of any instrument, such enforceability is
subject to applicable bankruptcy, insolvency and other similar laws
affecting the enforcement of creditors' rights generally (whether such
enforceability is considered in a proceeding in equity or at law). The
enforceability of the remedies provided under the Lease may also be limited
by applicable laws which may affect the remedies provided therein but which
do not in my opinion affect the validity of the Lease or make such remedies
inadequate for the practical realization of the benefits intended to be
provided thereby.
I do not express any opinion as to matters governed by any
law other than the Federal laws of the United States of America, the
corporation law of the State of Delaware and the laws of the State of
Tennessee.
As to the matters referred to in paragraphs 5, 7 and 9, I
have relied on the opinion of Daugherty, Fowler & Peregrin of even date
herewith, to the extent such matters are addressed in such counsel's
opinion and subject to the assumptions and qualifications expressed
therein.
This opinion is delivered to you solely for your use in
connection with the transaction described herein, and may not be used for
any other purpose, and may not be relied upon by any other person, without
my prior written consent.
George W. Hearn
SCHEDULE A
Owner Trustee
State Street Bank and Trust Company
of Connecticut, National Association
Two International Place
4th Floor
Boston, Massachusetts 02110
Indenture Trustee, Pass Through Trustee & Subordination Agent
First Security Bank, National Association
79 South Main Street
Salt Lake City, Utah 84111
Owner Participant
PMCC Leasing Corporation
200 First Stamford Place
Stamford, Connecticut 06902
Underwriters
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
First Chicago Capital Markets, Inc.
Corporate Securities
One First National Plaza
Chicago, Illinois 60670
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
J.P. Morgan & Co.
60 Wall Street
New York, New York 10260
Liquidity Provider
Kredietbank N.V., New York Branch
125 West 55th Street
New York, New York 10019
EXHIBIT A(1)(b)(i)
[Letterhead of Davis Polk & Wardwell]
[Certificate Closing Date]
To Each of the Parties named on Schedule A Hereto
Re: Federal Express Corporation Trust No. N673FE
Ladies and Gentlemen:
We have acted as special counsel for Federal Express
Corporation, a Delaware corporation ("Federal Express"), in connection with
the transactions contemplated by the Participation Agreement (Federal Express
Corporation Trust No. N673FE), dated as of May 1, 1997 (the "Participation
Agreement"), among Federal Express, as Lessee, PMCC Leasing Corporation, as
Owner Participant, State Street Bank and Trust Company of Connecticut,
National Association, not in its individual capacity, except as otherwise
stated, but solely as Owner Trustee, and First Security Bank, National
Association, not in its individual capacity, except as otherwise stated, but
solely as Indenture Trustee, Pass Through Trustee and Subordination Agent,
relating to the Aircraft. This opinion is being delivered pursuant to Section
4.01(k)(v) of the Participation Agreement. Capitalized terms not otherwise
defined herein have the meanings assigned thereto in the Participation
Agreement.
The Participation Agreement provides, among other things, for
the financing on the Delivery Date of a portion of the Owner Trustee's payment
of the Purchase Price of one Airbus A300F4-605R Aircraft using the proceeds
from the public offering of the Pass Through Certificates. On the Certificate
Closing Date, three Classes of Pass Through Certificates will be issued by
separate Pass Through Trusts, each formed to acquire, among other securities,
the Certificates bearing a particular interest rate and having a particular
Maturity that will be issued under the Indenture.
In connection with the opinions expressed below, we have
examined executed counterparts of the Operative Agreements, the Pass Through
Certificates, the Pass Through Agreement and each Series Supplement (the
"Certificate Closing Date Documents") and the forms of the Operative
Agreements to be delivered on the Delivery Date. We have also examined
originals, or copies certified to our satisfaction, of such other agreements,
documents, certificates and statements of governmental officials and corporate
officers as we have deemed necessary or advisable as a basis for such
opinions. In such examination, we have assumed the genuineness of all
signatures and the authenticity of all documents submitted to us as originals
and the conformity with the originals of all documents submitted to us as
copies.
As to any facts material to our opinions expressed below, we
have, with your consent, relied on the representations and warranties made in
or pursuant to the Participation Agreement and the other documents referred to
therein, the accuracy of which we have not independently verified. In
addition, we have, when relevant facts were not independently established by
us, relied, to the extent we deemed such reliance proper, upon certificates of
public officials and certificates, telegrams and other written or telephoned
statements of officers of the parties referred to herein.
Based on the foregoing, it is our opinion that:
1. Assuming (i) the due authorization, execution and
delivery of the Certificate Closing Date Documents by each of the parties
to each such document (other than Federal Express), (ii) each such party
has full power and legal right to enter into and perform its respective
obligations under the Certificate Closing Date Documents, (iii) that the
execution, delivery and performance of each of the Certificate Closing Date
Documents by each of the parties thereto will not violate the respective
parties' constituent documents, (iv) the due authorization, execution,
issuance and delivery by the Owner Trustee, and the due authentication by
the Indenture Trustee, of the Certificates to be issued under the Indenture
in accordance with the terms of the Indenture, (v) the due authorization,
execution, issuance, delivery and authentication by the Pass Through
Trustee of the Pass Through Certificates to be issued under the Pass
Through Agreement and the Series Supplement relating to such Pass Through
Certificates, in each case in accordance with the terms of the Pass Through
Agreement and such Series Supplement, and (vi) that the form of each
Certificate Closing Date Document is in compliance with all applicable laws
and governmental rules and regulations (other than the laws of the United
States and the State of New York), then: (A) to the extent governed by New
York law, each Certificate Closing Date Document in form constitutes a
legal, valid and binding agreement of each party thereto enforceable
against each such party in accordance with its terms; (B) the Indenture
creates, for the benefit of the Holders, the security interest in the Trust
Indenture Estate that it purports to create, except that no opinion is
given with respect to perfection of such security interest on the date
hereof; (C) the Certificates, when issued to and acquired by the Pass
Through Trustee, will be legal, valid and binding obligations of the Owner
Trustee enforceable against the Owner Trustee in accordance with their
terms and the terms of the Indenture and will be entitled to the benefits
of the Indenture, including the benefit of the security interest created
thereby, except that no opinion is given with respect to perfection of such
security interest on the date hereof; (D) the Pass Through Certificates,
when issued to and acquired by the Underwriters in accordance with the
Underwriting Agreement, will be legal, valid and binding obligations of the
Pass Through Trustee enforceable against the Pass Through Trustee in
accordance with their terms and will be entitled to the benefits of the
Pass Through Agreement and the Series Supplement relating thereto; and (E)
the beneficial interest of the Owner Participant under the Trust Agreement
in and to the properties which are part of the Trust Indenture Estate is
subject, to the extent provided in the Indenture, to the Lien of the
Indenture in favor of the Holders.
2. (a) Each of the Certificate Closing Date Documents to
which Federal Express is a party has been duly authorized, executed and
delivered by Federal Express. Each of the Operative Agreements to which
Federal Express is to be a party and which are to be delivered on the
Delivery Date has been authorized by Federal Express.
(b) The execution, delivery and performance by Federal
Express of each of the Certificate Closing Date Documents to which Federal
Express is a party do not, or did not on the date of execution thereof,
violate, and fully comply, or did fully comply on the date of execution
thereof, with, any laws and governmental rules and regulations of the State
of New York that may be applicable to Federal Express. The opinion set
forth in this paragraph 2(b) is rendered without regard to the taking of
any action or the conduct of any other business by Federal Express in the
State of New York other than the transactions contemplated by the
Certificate Closing Date Documents.
3. The execution, delivery and performance of the
Certificate Closing Date Documents (other than the Certificates) by the
Owner Trustee in its individual or trust capacity, as the case may be, and
the issuance, execution, delivery and performance of the Certificates by
the Owner Trustee in its trust capacity do not violate, and fully comply
with, any laws and governmental rules and regulations of the State of New
York that may be applicable to the Owner Trustee in its individual or trust
capacity, as the case may be. The opinion set forth in this paragraph 3 is
rendered without regard to the effect, if any, on such issuance (in the
case of the Certificates), execution, delivery or performance, of the
taking of any action, the conduct of any business or the exercise of any
other powers by State Street Bank and Trust Company of Connecticut,
National Association in its individual or trust capacity in the State of
New York not related to the transactions contemplated by the Certificate
Closing Date Documents. We have assumed that State Street Bank and Trust
Company of Connecticut, National Association has made the filings necessary
to comply with Section 131.3 of the Banking Law of the State of New York,
however we express no opinion as to whether State Street Bank and Trust
Company of Connecticut, National Association is required to comply with
said Section 131.3.
4. It is not necessary, in connection with the creation of
the beneficial interest of the Owner Participant in the Trust Indenture Estate
under the circumstances contemplated by the Participation Agreement to
register such beneficial interest under the Securities Act of 1933, as
amended, or to qualify the Trust Agreement under the Trust Indenture Act of
1939, as amended.
The foregoing opinions are subject to the following
qualifications:
(a) We have relied, with your consent, without independent
investigation and verification and subject to the assumptions and
qualifications contained therein, upon the opinion of George W.
Hearn, Vice President - Law of Federal Express to be delivered to
you and dated the date hereof, for purposes of the matters covered
thereby.
(b) We are qualified to practice law in the State of New York,
and we do not purport to be experts on, or to express any opinion
herein concerning, any laws other than the laws of the State of New
York, the laws of the United States and the General Corporation Law
of the State of Delaware.
(c) The opinion contained in paragraph 1(A) above as to
enforceability is subject to (i) applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement
of creditors' rights generally and (ii) general principles of equity
which may affect the remedies provided in the agreements referred to
in said opinions, which laws and principles, however, do not in our
opinion make the remedies provided in said agreements inadequate for
the practical realization of the benefits of the security intended to
be provided thereby.
(d) This opinion is rendered solely to you at Federal
Express's request in connection with the above matter. This
opinion may not be relied upon by you for any other purpose or
relied upon by any other Person without our prior written consent.
Very truly yours,
Davis Polk & Wardwell
SCHEDULE A
Lessee
Federal Express Corporation
2007 Corporate Avenue
Memphis, Tennessee 38132
Owner Trustee
State Street Bank and Trust Company
of Connecticut, National Association
Two International Place
4th Floor
Boston, Massachusetts 02110
Indenture Trustee, Pass Through Trustee & Subordination Agent
First Security Bank, National Association
79 South Main Street
Salt Lake City, Utah 84111
Owner Participant
PMCC Leasing Corporation
200 First Stamford Place
Stamford, Connecticut 06902
Underwriters
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
First Chicago Capital Markets, Inc.
Corporate Securities
One First National Plaza
Chicago, Illinois 60670
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
J.P. Morgan & Co.
60 Wall Street
New York, New York 10260
Liquidity Provider
Kredietbank N.V., New York Branch
125 West 55th Street
New York, New York 10019
EXHIBIT A(1)(b)(ii)
[Letterhead of Davis Polk & Wardwell]
[Delivery Date]
To Each of the Parties named on Schedule A Hereto
Re: Federal Express Corporation Trust No. N673FE
Ladies and Gentlemen:
We have acted as special counsel for Federal Express
Corporation, a Delaware corporation ("Federal Express"), in connection with
the transactions contemplated by the Participation Agreement (Federal Express
Corporation Trust No. N673FE), dated as of May 1, 1997 (the "Participation
Agreement"), among Federal Express, as Lessee, PMCC Leasing Corporation, as
Owner Participant, State Street Bank and Trust Company of Connecticut,
National Association, not in its individual capacity but solely as Owner
Trustee, and First Security Bank, National Association, not in its individual
capacity, except as otherwise stated, but solely as Indenture Trustee, Pass
Through Trustee and Subordination Agent, relating to the Aircraft. This
opinion is being delivered pursuant to Section 4.02(d)(ii) of the
Participation Agreement. Capitalized terms not otherwise defined herein have
the meanings assigned thereto in the Participation Agreement.
The Participation Agreement provides, among other things, for
the financing on the Delivery Date of the Owner Trustee's payment of a portion
of the Purchase Price of one Airbus A300F4-605R Aircraft (the "Aircraft") using
the proceeds from the public offering of the Pass Through Certificates. On the
Certificate Closing Date, three Classes of Pass Through Certificates were
issued by separate Pass Through Trusts, each formed to acquire, among other
securities, the Certificates bearing a particular interest rate and having a
particular Maturity issued under the Indenture. The Aircraft is to be leased
to Federal Express by the Owner Trustee pursuant to the Lease and subjected to
the Lien of the Indenture, and is to be delivered by the Owner Trustee to the
Lessee on this date, and in connection with the delivery of the Aircraft, the
Owner Trustee and Federal Express will execute and deliver the Lease
Supplement, and the Owner Trustee will execute and deliver the Indenture and
Security Agreement Supplement.
In connection with the opinions expressed below, we have
examined executed counterparts of the Operative Agreements, the Pass Through
Certificates, the Pass Through Agreement and each Series Supplement (the
"Transaction Agreements"). We have also examined originals, or copies
certified to our satisfaction, of such other agreements, documents,
certificates and statements of governmental officials and corporate officers
as we have deemed necessary or advisable as a basis for such opinions. In such
examination, we have assumed the genuineness of all signatures and the
authenticity of all documents submitted to us as originals and the conformity
with the originals of all documents submitted to us as copies.
As to any facts material to our opinions expressed below, we
have, with your consent, relied on the representations and warranties made in
or pursuant to the Participation Agreement and the other documents referred to
therein, the accuracy of which we have not independently verified. In
addition, we have, when relevant facts were not independently established by
us, relied, to the extent we deemed such reliance proper, upon certificates of
public officials and certificates, telegrams and other written or telephoned
statements of officers of the parties referred to herein.
Based on the foregoing, it is our opinion that:
1. With respect to that portion, if any, of the Aircraft
and the other property included in the Lessor's Estate as may not be
covered by the recording system established by the FAA pursuant to Section
44107 of the Transportation Code, no filing or recording of any document or
other action was or is necessary in order to establish the Owner Trustee's
title thereto and interest therein as against Federal Express and any third
parties.
2. Subject to execution and delivery of the Lease
Supplement and the Indenture and Security Agreement Supplement for the
Aircraft and to the registration of the Aircraft with the FAA in the name
of the Owner Trustee, the Lease, as supplemented, will create a valid
leasehold interest in the Aircraft, the entitlement thereof to the benefits
of recordation under the Transportation Code being subject to the due and
timely filing and, where appropriate, recording of (A) AVSA's FAA Bill of
Sale, (B) the Trust Agreement, (C) the Lease (with the Lease Supplement
covering the Aircraft, the Indenture and the Indenture and Security
Agreement Supplement covering the Aircraft attached as exhibits) and (D)
the Indenture (with the Indenture and Security Agreement Supplement
covering the Aircraft attached as an exhibit), pursuant to the
Transportation Code, and assuming that at the time of such filing no other
documents relating to the Aircraft have been filed pursuant to the
Transportation Code.
3. Assuming (i) the due authorization, execution and
delivery of the Transaction Agreements by each of the parties to each such
document (other than Federal Express), (ii) each such party has full power
and legal right to enter into and perform its respective obligations under
the Transaction Agreements, (iii) that the execution, delivery and
performance of each of the Transaction Agreements by each of the parties
thereto will not violate the respective parties' constituent documents,
(iv) the due authorization, execution, issuance and delivery by the Owner
Trustee, and the due authentication by the Indenture Trustee, of the
Certificates issued under the Indenture in accordance with the terms of the
Indenture, (v) the due authorization, execution, issuance, delivery and
authentication by the Pass Through Trustee of the Pass Through Certificates
issued under the Pass Through Agreement and the Series Supplement relating
to such Pass Through Certificates, in each case in accordance with the
terms of the Pass Through Agreement and such Series Supplement, and (vi)
that the form of each Transaction Agreement is in compliance with all
applicable laws and governmental rules and regulations (other than the laws
of the United States and the State of New York), then: (A) to the extent
governed by New York law, each Transaction Agreement in form constitutes a
legal, valid and binding agreement of each party thereto enforceable
against each such party in accordance with its terms; (B) the Indenture
creates, for the benefit of the Holders, the security interest in the Trust
Indenture Estate that it purports to create; (C) the Certificates are
legal, valid and binding obligations of the Owner Trustee enforceable
against the Owner Trustee in accordance with their terms and the terms of
the Indenture and are entitled to the benefits of the Indenture, including
the benefit of the security interest created thereby; and (D) the
beneficial interest of the Owner Participant under the Trust Agreement in
and to the properties which are part of the Trust Indenture Estate is
subject, to the extent provided in the Indenture, as supplemented by the
Indenture and Security Agreement Supplement, to the Lien of the Indenture
in favor of the Holders. The opinions set forth in this paragraph 3 are
subject to the due filing and recording, where appropriate, with the FAA of
the documents referred to in paragraph 2 above.
4. (a) Each of the Transaction Agreements to which Federal
Express is a party has been duly authorized, executed and delivered by Federal
Express.
(b) The execution, delivery and performance by Federal Express
of each of the Transaction Agreements to which Federal Express is a party do
not, or did not on the date of execution thereof, violate, and fully comply,
or did fully comply on the date of execution thereof, with, any laws and
governmental rules and regulations of the State of New York that may be
applicable to Federal Express. The opinion set forth in this paragraph 4(b)
is rendered without regard to the taking of any action or the conduct of any
other business by Federal Express in the State of New York other than the
transactions contemplated by the Transaction Agreements.
5. The execution, delivery and performance of the
Transaction Agreements (other than the Certificates) by the Owner Trustee
in its individual or trust capacity, as the case may be, and the issuance,
execution, delivery and performance of the Certificates by the Owner
Trustee in its trust capacity do not violate, and fully comply with, any
laws and governmental rules and regulations of the State of New York that
may be applicable to the Owner Trustee in its individual or trust capacity,
as the case may be. The opinion set forth in this paragraph 5 is rendered
without regard to the effect, if any, on such issuance (in the case of the
Certificates), execution, delivery or performance, of the taking of any
action, the conduct of any business or the exercise of any other powers by
State Street Bank and Trust Company of Connecticut, National Association in
its individual or trust capacity in the State of New York not related to
the transactions contemplated by the Transaction Agreements. We have
assumed that State Street Bank and Trust Company of Connecticut, National
Association has made the filings necessary to comply with Section 131.3 of
the Banking Law of the State of New York, however we express no opinion as
to whether State Street Bank and Trust Company of Connecticut, National
Association is required to comply with said Section 131.3.
6. All the properties which are part of the Trust Indenture
Estate (including all right, title and interest of the Owner Trustee pledged
and mortgaged by it pursuant to the Indenture in and to the Aircraft and the
Lease) have been pledged and mortgaged with the Indenture Trustee as part of
the Trust Indenture Estate (subject to the due filing and, where appropriate,
recording of those documents referred to in paragraph 2 above and the
financing statement referred to in Section 4.02(f) of the Participation
Agreement), and the beneficial interest of the Owner Participant under the
Trust Agreement in and to such properties are subject, to the extent provided
in the Indenture, to the Lien of the Indenture in favor of the Holders of the
Certificates issued and to be issued under the Indenture.
7. The Indenture and Security Agreement Supplement, pursuant
to the Granting Clause of the Indenture, creates, as security for the
Certificates duly issued and to be issued under the Indenture, the first
priority security interest in the Aircraft it purports to create, the
perfection and rank thereof being subject to the registration with the FAA of
the Aircraft in the name of the Owner Trustee and the due filing and, where
appropriate, recording in accordance with the Transportation Code of the
documents referred to in paragraph 2 above. We express no opinion with
respect to the status of any security interest in any portion of the Aircraft
which does not constitute an "aircraft" or "aircraft engine", as defined in
paragraphs (6) and (7) of Section 40102(a) of the Transportation Code.
8. Except for (i) the filings and recordings referred to in
paragraph 2 above, (ii) the registration of the issuance and sale of the
Pass Through Certificates under the Securities Act and (iii) compliance
with the securities laws of each applicable state, neither the execution
and delivery by Federal Express of the Participation Agreement or any other
Operative Agreement to which it is a party, nor the consummation of any of
the transactions by Federal Express contemplated thereby, requires the
consent or approval of, the giving of notice to, or the registration with,
or the taking of any other action in respect of, the Department of
Transportation, the FAA, the Securities and Exchange Commission or any
other Federal or New York State governmental authority.
9. It is not necessary, in connection with the creation of
the beneficial interest of the Owner Participant in the Trust Indenture Estate
under the circumstances contemplated by the Participation Agreement to
register such beneficial interest under the Securities Act of 1933, as
amended, or to qualify the Trust Agreement under the Trust Indenture Act of
1939, as amended.
10. The provisions of Section 1110 of the United States
Bankruptcy Code will apply to the Aircraft for the benefit of the Lessor,
as lessor under and by reason of the Lease. The Lease, including the
rights under Section 1110 of the United States Bankruptcy Code, has been
assigned to the Indenture Trustee pursuant to the Indenture as part of the
collateral for the Certificates and, as assignee, the Indenture Trustee has
the benefit of Section 1110.
The foregoing opinions are subject to the following
qualifications:
(a) We have relied, with your consent, without independent
investigation and verification and subject to the assumptions and
qualifications contained therein, upon the opinions of Daugherty,
Fowler & Peregrin and George W. Hearn, Vice President - Law of
Federal Express to be delivered to you and dated the date hereof, for
purposes of the matters covered thereby.
(b) We are qualified to practice law in the State of New York,
and we do not purport to be experts on, or to express any opinion
herein concerning, any laws other than the laws of the State of New
York, the laws of the United States and the General Corporation Law
of the State of Delaware. We express no opinion as to any matters
involving aviation law.
(c) The opinion contained in paragraph 3(A) above as to
enforceability is subject to (i) applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement
of creditors' rights generally and (ii) general principles of equity
which may affect the remedies provided in the agreements referred to
in said opinions, which laws and principles, however, do not in our
opinion make the remedies provided in said agreements inadequate for
the practical realization of the benefits of the security intended to
be provided thereby.
(d) This opinion is rendered solely to you at Federal
Express's request in connection with the above matter. This
opinion may not be relied upon by you for any other purpose or
relied upon by any other Person without our prior written consent.
Very truly yours,
Davis Polk & Wardwell
SCHEDULE A
Lessee
Federal Express Corporation
2007 Corporate Avenue
Memphis, Tennessee 38132
Owner Trustee
State Street Bank and Trust Company
of Connecticut, National Association
Two International Place
4th Floor
Boston, Massachusetts 02110
Indenture Trustee, Pass Through Trustee & Subordination Agent
First Security Bank, National Association
79 South Main Street
Salt Lake City, Utah 84111
Owner Participant
PMCC Leasing Corporation
200 First Stamford Place
Stamford, Connecticut 06902
Underwriters
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
First Chicago Capital Markets, Inc.
Corporate Securities
One First National Plaza
Chicago, Illinois 60670
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
J.P. Morgan & Co.
60 Wall Street
New York, New York 10260
Liquidity Provider
Kredietbank N.V., New York Branch
125 West 55th Street
New York, New York 10019
EXHIBIT A(2)(a)
[Letterhead of Simpson Thacher & Bartlett]
[Certificate Closing Date]
To Each of the Parties named on Schedule A Hereto
Re: Federal Express Corporation Trust No. N673FE
Ladies and Gentlemen:
We have acted as special New York counsel for (i) PMCC Leasing
Corporation ("PMCC") in connection with the transactions contemplated by the
Participation Agreement (Federal Express Corporation Trust No. N673FE), dated
as of May 1, 1997 (the "Participation Agreement"), among Federal Express
Corporation, as lessee, State Street Bank and Trust Company of Connecticut,
National Association, not in its individual capacity, except as otherwise
stated, but solely as owner trustee, PMCC, as owner participant, and First
Security Bank, National Association, not in its individual capacity, except as
otherwise stated, but solely as indenture trustee, pass through trustee and
subordination agent, and (ii) Philip Morris Capital Corporation ("Philip
Morris") in connection with the transactions contemplated by the Owner
Participant Guaranty (the "Guaranty"), dated as of May 1, 1997 from Philip
Morris to each of the beneficiaries named therein. This opinion is being
furnished to you pursuant to Section 4.01(k)(ii) of the Participation
Agreement. Capitalized terms used herein and not otherwise defined herein
shall have the meanings ascribed to them in the Participation Agreement.
We have examined executed counterparts of the Participation
Agreement, the Trust Agreement, the Tax Indemnity Agreement, the Ancillary
Agreement I and the Ancillary Agreement II (collectively, the "Owner
Participant Documents") and the Guaranty. We have made such other and further
investigations as we have deemed necessary or appropriate for purposes of this
opinion. In our examination we have assumed, with your permission, and
without independent investigation or inquiry, the genuineness of all
signatures, the authenticity of all documents submitted to us as originals and
the conformity to original documents of all documents submitted to us as
certified or photocopies and the authenticity of the originals of such latter
documents.
With your permission, we have further assumed that (i) the
Owner Participant Documents and the Guaranty have been duly authorized,
executed and delivered by each of the parties thereto, (ii) the respective
parties thereto have the power and authority to execute, deliver and
perform the Owner Participant Documents and the Guaranty, (iii) the
execution, delivery and performance of the Owner Participant Documents and
the Guaranty by the parties thereto do not and will not violate the
certificate of incorporation, by-laws or other organizations documents of
any such party or any bond, debenture, note, mortgage, indenture, lease or
other agreement or instrument to which any such party is a party or by
which any such party is bound and does and will fully comply with all laws
an regulations applicable to each such party and (iv) the Owner Participant
Documents constitute valid, legal and binding obligations of the parties
thereto (other than PMCC), enforceable against such parties (other than
PMCC) in accordance with their respective terms.
Based upon the foregoing, we are of the opinion that:
1. The Participation Agreement and the Tax Indemnity Agreement
constitute valid and legally binding obligations of PMCC enforceable against
PMCC in accordance with their respective terms.
2. The Guaranty constitutes a valid and legally binding obligation
of Philip Morris enforceable against Philip Morris in accordance with its
terms.
3. The execution, delivery and performance by PMCC of the Owner
Participant Documents will not result in any violation of any Federal or New
York statute or any order, rule or regulation issued pursuant to any New York
or Federal statute by any New York or Federal Court or governmental agency or
body having jurisdiction over PMCC.
4. The execution, delivery and performance by Philip Morris of
the Guaranty will not result in any violation of any Federal or New York
statute or any order, rule or regulation issued pursuant to any New York or
Federal statute by any New York or Federal Court or governmental agency or
body having jurisdiction over Philip Morris.
5. No consent, approval, authorization, order, registration,
filing or qualification under any Federal or New York statute is required to
be obtained by PMCC for the execution, delivery and performance by PMCC of the
Owner Participant Documents.
6. No consent, approval, authorization, order, registration,
filing or qualification under any Federal or New York statute is required to
be obtained by Philip Morris for the execution, delivery and performance by
Philip Morris of the Guaranty.
Our opinions in paragraphs 1 and 2 are subject to the
effects of bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws relating to or affecting creditors'
rights generally, general equitable principles (whether considered in a
proceeding in equity or at law) and an implied covenant of good faith and
fair dealing.
We are members of the Bar of the State of New York and express
no opinion herein concerning any law other than the laws of the State of New
York.
This opinion is rendered to you in connection with the
above-described transaction. This opinion may not be relied by you for any
other purpose, or relied upon by or furnished to any other person, firm or
corporation without our prior written consent, except that the Owner
Participant may furnish a copy of this opinion to a potential transferee or
participant of the interest of such entity or otherwise as required by a
governmental authority.
Very truly yours,
Simpson Thacher & Bartlett
SCHEDULE A
Lessee
Federal Express Corporation
2007 Corporate Avenue
Memphis, Tennessee 38132
Owner Trustee
State Street Bank and Trust Company
of Connecticut, National Association
Two International Place
4th Floor
Boston, Massachusetts 02110
Indenture Trustee, Pass Through Trustee & Subordination Agent
First Security Bank, National Association
79 South Main Street
Salt Lake City, Utah 84111
Owner Participant
PMCC Leasing Corporation
200 First Stamford Place
Stamford, Connecticut 06902
Underwriters
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
First Chicago Capital Markets, Inc.
Corporate Securities
One First National Plaza
Chicago, Illinois 60670
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
J.P. Morgan & Co.
60 Wall Street
New York, New York 10260
Liquidity Provider
Kredietbank N.V., New York Branch
125 West 55th Street
New York, New York 10019
EXHIBIT A(2)(b)
[Letterhead of Philip Morris Capital Corporation]
[Certificate Closing Date]
To Each of the Parties named on Schedule A Hereto
Re: Federal Express Corporation Trust No. N673FE
Ladies and Gentlemen:
In my capacity as Assistant General Counsel and Assistant
Secretary of Philip Morris Capital Corporation, a Delaware corporation, I have
supervised corporate proceedings of (i) PMCC Leasing Corporation, a Delaware
corporation (the "Owner Participant"), in connection with the Owner
Participant's participation in the transactions contemplated by that certain
Participation Agreement (Federal Express Corporation Trust No. N673FE), dated
as of May 1, 1997 (the "Participation Agreement"), among the Owner
Participant, Federal Express Corporation, as Lessee; State Street Bank and
Trust Company of Connecticut, National Association, except as otherwise
stated, not in its individual capacity but solely as Owner Trustee; and First
Security Bank, National Association not in its individual capacity, except as
otherwise stated, but solely as Indenture Trustee, Pass Through Trustee and
Subordination Agent, and (ii) Philip Morris Capital Corporation, a Delaware
corporation (the "Guarantor"), in connection with the transactions
contemplated by the Owner Participant Guaranty (the "Guaranty"), dated as of
May 1, 1997 from Philip Morris to each of the beneficiaries named therein.
This opinion is delivered pursuant to Section 4.01(k)(ii) of the Participation
Agreement. Capitalized terms used herein but not otherwise defined herein,
shall have the respective meanings set forth in the Participation Agreement.
In connection with this opinion, I have examined originals,
or copies certified or otherwise identified to my satisfaction of the
Participation Agreement, the Trust Agreement, the Tax Indemnity Agreement,
the Ancillary Agreement I and the Ancillary Agreement II (each such
document to be hereafter referred to individually as an "Owner Participant
Document" and collectively as the "Owner Participant Documents") and the
Guaranty. I have also examined such corporate documents, records and
instruments of the Owner Participant and the Guarantor as in my judgement
are necessary or appropriate to enable me to render the opinions expressed
below. In rendering such opinions, I have relied upon the representations
and warranties contained in or made pursuant to the Owner Participant
Documents and the Guaranty and have assumed the due authorization,
execution and delivery of all documents and instruments by all parties
thereto other than the Owner Participant.
Based on the foregoing and subject to the qualifications and
matters of reliance set forth herein, I am of the opinion that:
1. The Owner Participant is a corporation duly organized,
validly existing and in good standing under the laws of the State of
Delaware, has full corporate power, authority and legal right to
carry on its business as now conducted, and is duly authorized and
empowered to execute and deliver the Owner Participant Documents and
to fulfill and comply with the terms, conditions and other provisions
thereof.
2. The Guarantor is a corporation duly organized, validly
existing and in good standing under the laws of the State of
Delaware, has full corporate power, authority and legal right to
carry on its business as now conducted, and is duly authorized and
empowered to execute and deliver the Guaranty and to fulfill and
comply with the terms, conditions and other provisions thereof.
3. The Owner Participant Documents have been duly authorized
by all necessary corporate action on the part of the Owner
Participant, and have been duly executed and delivered by the Owner
Participant.
4. The Guaranty has been duly authorized by all necessary
corporate action on the part of the Guarantor, and has been duly
executed and delivered by the Guarantor.
5. No filing with, notice to, or authorization or approval
from any governmental or public body or authority is required under
the laws of the State of New York, the laws of the United States of
America, or the General Corporation Law of the State of Delaware in
connection with the execution, delivery and performance by the Owner
Participant of the Owner Participant Documents.
6. No filing with, notice to, or authorization or approval
from any governmental or public body or authority is required under
the laws of the State of New York, the laws of the United States of
America, or the General Corporation Law of the State of Delaware in
connection with the execution, delivery and performance by the
Guarantor of the Guaranty.
7. There are no actions, suits or proceedings (whether or not
purportedly on behalf of the Owner Participant) pending or, to my
knowledge, threatened against or affecting the Owner Participant or
any property rights of the Owner Participant at law or in equity or
before any commission or other administrative agency which, either
individually or in the aggregate, could materially and adversely
affect the condition, financial or otherwise, of the Owner
Participant or its ability to perform its obligations under the Owner
Participant Documents or which would affect the legality, validity or
enforceability of such Owner Participant Documents.
8. There are no actions, suits or proceedings (whether or
not purportedly on behalf of the Guarantor) pending or, to my
knowledge, threatened against or affecting the Guarantor or any
property rights of the Guarantor at law or in equity or before any
commission or other administrative agency which, either
individually or in the aggregate, could materially and adversely
affect the condition, financial or otherwise, of the Guarantor or
its ability to perform its obligations under the Guaranty or which
would affect the legality, validity or enforceability of such
Guaranty.
9. Neither the execution and delivery of the Owner Participant
Documents, the consummation of the transactions therein contemplated
nor the fulfillment of or compliance with the terms, conditions and
other provisions thereof will conflict with, or result in any breach
of, any of the terms, conditions or provisions of (i) any law or
regulation binding upon the Owner Participant, (ii) any order,
injunction or decree of any court or governmental instrumentality
binding upon the Owner Participant, (iii) the Certificate of
Incorporation or Bylaws of the Owner Participant, or (iv) any bond,
debenture, note, mortgage indenture or other agreement or instrument
to which the Owner Participant is now a party or by which the
property of the Owner Participant may be bound.
10. Neither the execution and delivery of the Guaranty, the
consummation of the transactions therein contemplated nor the
fulfillment of or compliance with the terms, conditions and other
provisions thereof will conflict with, or result in any breach of,
any of the terms, conditions or provisions of (i) any law or
regulation binding upon the Guarantor, (ii) any order, injunction or
decree of any court or governmental instrumentality binding upon the
Guarantor, (iii) the Certificate of Incorporation or Bylaws of the
Guarantor, or (iv) any bond, debenture, note, mortgage indenture or
other agreement or instrument to which the Guarantor is now a party
or by which the property of the Guarantor may be bound.
I am a member of the bar of the State of New York, and I do
not purport to be conversant with, or to express any opinion herein
concerning, the laws of any jurisdiction other than those of the State of
New York and the United States of America and the General Corporation Law
of the State of Delaware. In addition, I express no opinion concerning the
laws of the State of New York, the United States of America or any other
jurisdiction applicable to the offering or sale of securities. Further, I
have made no investigation and express no opinion, as to any aviation law
or other laws, statutes, rules or regulations applicable due to the
particular nature of the equipment subject to the Lease.
This opinion is solely for the benefit of the addresses hereof
and their respective successors and assigns for use in connection with the
transactions contemplated by the Owner Participant Documents and may not be
relied upon by any other person or for any other purpose without my express
written consent. This opinion may be relied upon by Messrs. Simpson, Thacher
& Bartlett in rendering their opinion of even date herewith.
Very truly yours,
Nancy S. Rights
SCHEDULE A
Lessee
Federal Express Corporation
2007 Corporate Avenue
Memphis, Tennessee 38132
Owner Trustee
State Street Bank and Trust Company
of Connecticut, National Association
Two International Place
4th Floor
Boston, Massachusetts 02110
Indenture Trustee, Pass Through Trustee & Subordination Agent
First Security Bank, National Association
79 South Main Street
Salt Lake City, Utah 84111
Underwriters
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
First Chicago Capital Markets, Inc.
Corporate Securities
One First National Plaza
Chicago, Illinois 60670
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
J.P. Morgan & Co.
60 Wall Street
New York, New York 10260
Liquidity Provider
Kredietbank N.V., New York Branch
125 West 55th Street
New York, New York 10019
EXHIBIT A(3)
[Letterhead of Ray, Quinney & Nebeker]
[Certificate Closing Date]
To the Persons Listed in Schedule A Attached Hereto
Re: Federal Express Corporation Trust No. N673FE
Ladies and Gentlemen:
We have acted as special counsel to First Security Bank,
National Association, a national banking association ("First Security"), in
connection with the Participation Agreement (Federal Express Corporation
Trust No. N673FE), dated as of May 1, 1997 (the "Participation
Agreement"), among Federal Express Corporation, as Lessee, PMCC Leasing
Corporation, as Owner Participant, State Street Bank and Trust Company of
Connecticut, National Association, not in its individual capacity, except
as otherwise stated, but solely as Owner Trustee, and First Security, not
in its individual capacity, except as otherwise stated, but solely as
Indenture Trustee, Pass Through Trustee and Subordination Agent. Pursuant
to the Participation Agreement, one Airbus A300F4-605R aircraft bearing
U.S. Registration No. N673FE (the "Aircraft") is being financed. This
opinion is furnished pursuant to Section 4.01(k)(iv) of the Participation
Agreement. Capitalized terms used herein and not otherwise defined are
used as defined in the Participation Agreement, except that references
herein to any instrument shall mean such instrument as in effect on the
date hereof.
We have examined executed counterparts or copies otherwise
identified to our satisfaction of the following documents:
(a) The Participation Agreement;
(b) The Indenture;
(c) The Ancillary Agreement I;
(d) The Ancillary Agreement II:
(e) The Collateral Account Control Agreement;
(f) The Certificates; and
(g) The French Pledge Agreement;
(each of the documents identified in paragraphs (a) through (g) above are
collectively referred to as the "Indenture Trustee Documents").
We have also examined originals or copies of such other
documents, such corporate records, certificates and other statements of
governmental officials and corporate officers and other representatives of the
corporations or entities referred to herein and such other instruments as we
have deemed necessary or appropriate for the purposes of this opinion.
Moreover, as to certain facts material to the opinions expressed herein, we
have relied upon representations and warranties contained in the Indenture
Trustee Documents.
Based upon the foregoing and upon an examination of such
questions of law as we have considered necessary or appropriate, and subject
to the assumptions, exceptions and qualifications set forth below, we advise
you that, in our opinion:
1. First Security is a national banking association duly
organized and validly existing under the laws of the United States of
America holding a valid certificate to do business as a national
banking association, with banking and trust powers, and each of First
Security and the Indenture Trustee, as the case may be, has or had,
on the date of execution thereof, full corporate power, authority and
legal right to execute, deliver and perform each of the Indenture
Trustee Documents to which it is or is to be a party and to
authenticate the Certificates delivered on the Certificate Closing
Date.
2. Each of First Security and the Indenture Trustee, as the
case may be, has duly authorized, executed and delivered each
Indenture Trustee Document to which it is a party; each such document
constitutes a legal, valid and binding obligation of the Indenture
Trustee (and, to the extent set forth in the respective Indenture
Trustee Document, of First Security) enforceable against the
Indenture Trustee (and, to the extent set forth in the respective
Indenture Trustee Document, against First Security) in accordance
with its terms.
3. The Certificates issued and dated the Certificate Closing
Date have been duly authenticated and delivered by the Indenture
Trustee pursuant to the terms of the Indenture.
4. Neither the authorization, execution and delivery by the
Indenture Trustee or First Security, as the case may be, of the
Indenture Trustee Documents, nor the authentication and delivery by
the Indenture Trustee of the Certificates nor the fulfillment or
compliance by the Indenture Trustee or First Security with the
respective terms and provisions thereof nor the consummation of any
of the transactions by the Indenture Trustee or First Security, as
the case may be, contemplated thereby, requires the consent or
approval of, the giving of notice to, the registration with, or the
taking of any other action in respect of, any court or administrative
or governmental authority or agency of the State of Utah or the
United States of America governing the banking or trust powers of
First Security.
5. The execution, delivery and performance by the Indenture
Trustee or First Security, as the case may be, of each of the
Indenture Trustee Documents and the authentication and delivery of
the Certificates by the Indenture Trustee are not in violation of the
charter or by-laws of First Security or of any law, governmental
rule, or regulation of the State of Utah or the United States of
America governing the banking or trust powers of First Security or,
to our knowledge, of any indenture, mortgage, bank credit agreement,
note or bond purchase agreement, long-term lease, license or other
agreement or instrument to which it is a party or by which it is
bound or, to our knowledge, of any judgment or order of the State of
Utah or the United States of America relating to the banking or trust
powers of First Security.
6. There are no fees, taxes or other governmental charges
payable by the Owner Trustee, the Indenture Trustee (except taxes
imposed on fees payable to First Security) or the Certificate Holders
to the State of Utah or any political subdivision thereof in
connection with the execution, delivery or performance of any of the
Operative Agreements or in connection with the issuance and
acquisition of the Certificates by the Certificate Holders or the
beneficial interests of the Certificate Holders in the Trust
Indenture Estate solely because First Security) (a) is incorporated
under the laws of the State of Utah, (b) has its principal place of
business in the State of Utah, (c) performs (in its individual
capacity or as Indenture Trustee) any or all of its duties under the
Indenture Trustee Documents in the State of Utah, and (d) engages in
any activities unrelated to the transactions contemplated by the
Indenture Trustee Documents in the State of Utah. Neither the
Indenture Trustee nor the trust created under the Indenture will be
subject to any fee, tax or other governmental charge (except for
taxes imposed on fees payable to First Security) under the laws of
the State of Utah or any political subdivision thereof in existence
on the date hereof, on, based on or measured by, directly or
indirectly, the gross receipts, net income or value of the Trust
Indenture Estate solely because First Security (a) is incorporated
under the laws of the State of Utah, (b) has its principal place of
business in the State of Utah, (c) performs (in its individual
capacity or as Indenture Trustee) any or all of its duties under the
Indenture Trustee Documents in the State of Utah, and (d) engages in
any activities unrelated to the transactions contemplated by the
Indenture Trustee Documents in the State of Utah. There is no fee,
tax or other governmental charge (except for taxes imposed on fees
payable to First Security) under the laws of the State of Utah or any
political subdivision thereof in existence on the date hereof, on,
based on or measured by any payments under the Certificates by reason
of the creation of the trust under the Indenture solely because First
Security (a) is incorporated under the laws of the State of Utah, (b)
has its principal place of business in the State of Utah, (c)
performs (in its individual capacity or as Indenture Trustee) any or
all of its duties under the Indenture Trustee Documents in the State
of Utah, and (d) engages in any activities unrelated to the
transactions contemplated by the Indenture Trustee Documents in the
State of Utah. We express no opinion as to whether or not any fees,
taxes or other charges are now or hereafter may be payable by the
Owner Participant to the State of Utah or any political subdivision
thereof in connection with (a) the execution, delivery or performance
by any of the Indenture, the Participation Agreement or any of the
other Operative Agreements and (b) the making by the Owner
Participant of its investment in the Aircraft.
7. There are no actions, suits, investigations or proceedings
pending or, to our knowledge, threatened against or affecting First
Security or the Indenture Trustee, as the case may be, or any of its
properties in any court or before any administrative agency or
arbitrator, which, if adversely determined, would materially
adversely affect the ability of First Security or the Indenture
Trustee, as the case may be, to perform its obligations under any of
the Indenture Trustee Documents, and there are no pending or, to our
knowledge, threatened actions or proceedings before any court,
administrative agency or tribunal involving First Security or the
Indenture Trustee, as the case may be, in connection with the
transactions contemplated by any of the Indenture Trustee Documents.
The foregoing opinions are subject to the following
assumptions, exceptions and qualifications:
A. We are admitted to practice law in the State of Utah and we
do not hold ourselves out as being experts on the laws of any other
jurisdiction. The foregoing opinions are limited to the laws of the State of
Utah, the federal laws of the United States of America governing the banking
and trust powers of First Security and Title II of the United States Code
entitled "Bankruptcy". However, we express no opinion with respect to (i)
federal securities laws, including the Securities Act of 1933, as amended, the
Securities Exchange Act of 1934, as amended, and the Trust Indenture Act of
1939, as amended, (ii) the Federal Aviation Act of 1958, as amended and (iii)
state securities or blue sky laws. Insofar as the foregoing opinions relate
to the validity and enforceability in the State of Utah of the Certificates
and the other Indenture Trustee Documents expressed to be governed by the laws
of the State of New York, we have assumed that the laws of New York are
identical to the laws of Utah in all material respects, and that the
Certificates and such Indenture Trustee Documents constitute legal, valid,
binding and enforceable documents or instruments under such laws (as to which
we express no opinion). No opinion is expressed as to the priority of any
security interest or as to title to any part of the Trust Estate.
B. The foregoing opinions regarding enforceability of any
document or instrument, are subject to (i) applicable bankruptcy, insolvency,
moratorium, reorganization, receivership and similar laws affecting the rights
and remedies of creditors generally, and (ii) general principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or at law).
C. We have assumed the due authorization, execution and
delivery by each of the parties thereto, other than First Security and the
Indenture Trustee, of the Indenture Trustee Documents to which each is a party
and that each of such parties has the full power, authority and legal right to
execute and deliver each such document.
D. We have assumed that all signatures (other than those of
the Indenture Trustee or First Security) on documents and instruments
examined by us are genuine, that all documents and instruments submitted to
us as originals are authentic, and that all documents and instruments
submitted to us as copies conform with the originals, which facts we have
not independently verified.
E. We have assumed that the Participation Agreement and the
transactions contemplated thereby are not within the prohibitions of Section
406 of the Employee Retirement Income Security Act of 1974.
This opinion is rendered solely for your benefit and may not be
relied upon by any other person or entity for any purpose without our prior
written consent.
Very truly yours,
Ray, Quinney & Nebeker
SCHEDULE A
Lessee
Federal Express Corporation
2007 Corporate Avenue
Memphis, Tennessee 38132
Owner Trustee
State Street Bank and Trust Company
of Connecticut, National Association
Two International Place
4th Floor
Boston, Massachusetts 02110
Indenture Trustee, Pass Through Trustee & Subordination Agent
First Security Bank, National Association
79 South Main Street
Salt Lake City, Utah 84111
Owner Participant
PMCC Leasing Corporation
200 First Stamford Place
Stamford, Connecticut 06902
Underwriters
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
First Chicago Capital Markets, Inc.
Corporate Securities
One First National Plaza
Chicago, Illinois 60670
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
J.P. Morgan & Co.
60 Wall Street
New York, New York 10260
Liquidity Provider
Kredietbank N.V., New York Branch
125 West 55th Street
New York, New York 10019
EXHIBIT A(4)(a)(i)
[Letterhead of Bingham, Dana & Gould]
[Certificate Closing Date]
To Each of the Parties Listed on Schedule A Hereto
Re: Federal Express Corporation Trust No. N673FE
Ladies and Gentlemen:
We have acted as counsel to State Street Bank and Trust
Company of Connecticut, National Association, a national banking
association in its individual capacity ("State Street") and its capacity as
Owner Trustee (the "Owner Trustee") under the Trust Agreement (Federal
Express Corporation Trust No. N673FE) dated as of May 1, 1997 between
State Street and PMCC Leasing Corporation, as Owner Participant ("Owner
Participant") (the "Trust Agreement") in connection with the transactions
contemplated by that certain Participation Agreement (Federal Express
Corporation Trust No. N673FE) dated as of May 1, 1997 (the "Participation
Agreement") by and among Federal Express Corporation (the "Lessee"); the
Owner Participant; and First Security Bank, National Association, in its
individual capacity and as Indenture Trustee (the "Indenture Trustee"),
Pass Through Trustee and Subordination Agent. Except as otherwise defined
herein, all capitalized terms used herein shall have the respective
meanings set forth in, or by reference to, the Participation Agreement.
The Owner Trustee has requested that we deliver this opinion to
you in accordance with Section 4.01 of the Participation Agreement.
Our representation of State Street has been as special counsel
for the purposes stated above. As to all matters of fact (including factual
conclusions and characterizations and descriptions of purpose, intention or
other state of mind), we have relied entirely upon (i) the representations of
the parties set forth in the Operative Agreements and (ii) certificates
delivered to us by the management of State Street and have assumed, without
independent inquiry, the accuracy of those representations and certificates.
We have examined each of the Operative Agreements to which
State Street or the Owner Trustee, as applicable is a party (the "Owner
Trustee Documents"), the Certificate of the Comptroller of the Currency
relating to State Street and originals, or copies certified or otherwise
identified to our satisfaction, of such other corporate records, documents,
certificates and other instruments as we have deemed necessary or advisable
for the purposes of rendering this opinion.
We have assumed the genuineness of all signatures (other than
those on behalf of State Street and the Owner Trustee), the conformity to the
originals of all documents reviewed by us as copies, the authenticity and
completeness of all original documents reviewed by us in original or copy form
and the legal competence of each individual executing any document (other than
on behalf of State Street and the Owner Trustee).
When an opinion set forth below is given to the best of our
knowledge, or to our knowledge, or with reference to matters of which we are
aware or which are known to us, or with another similar qualification, the
relevant knowledge or awareness is limited to the actual knowledge or
awareness of the individual lawyer in the firm that signed this opinion, the
individual lawyers in the firm who have participated directly in the specific
transactions to which this opinion relates or in the preparation of this
opinion and the partner of the firm responsible for State Street corporate
trust matters, and without any special or additional investigation undertaken
for the purposes of this opinion.
Each opinion set forth below relating to the enforceability of
any agreement or instrument against State Street, the Owner Trustee or the
Owner Participant, as applicable, is subject to the following general
qualifications:
(i) as to any agreement to which State Street or the
Owner Trustee, as applicable, is a party, we assume that such
agreement is the legal, valid and binding obligation or each other
party thereto;
(ii) except as otherwise set forth in our opinions 13
and 14 below, the enforceability of any obligation of State
Street, the Owner Trustee and the Owner Participant, may be
limited by bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium, marshaling, or other similar laws and
rules of law affecting the enforcement generally of creditors'
rights and remedies (including such as may deny giving effect to
waivers of debtors' or guarantors' rights);
(iii) no opinion is given herein as to the enforceability
of any particular provision of any of the Owner Trustee Documents
relating to remedies after default or as to the availability of any
specific or equitable relief of any kind. However, we are of the
opinion that, subject to the other limitations and qualifications
contained in this opinion, the remedies provided in the Owner Trustee
Documents, taken as a whole, are adequate for the realization of the
principal benefits or security of said agreements (except for the
economic consequences of procedural or other delay); and
(iv) the enforcement of any rights and the availability
of any specific or equitable relief of any kind may in all cases be
subject to an implied duty of good faith and to general principles of
equity (regardless of whether such enforceability or relief is
considered in a proceeding at law or in equity) and, as to any of
your rights to collateral security, will be subject to a duty to act
in a commercially reasonable manner.
Subject to the limitations set forth herein, we have made
such examination of law as we have deemed necessary for the purposes of
this opinion. The opinions expressed herein are limited solely to the
internal substantive laws of the State of Connecticut and the Federal laws
of the United States of America. No opinion is expressed herein as to the
application or effect of federal securities laws or as to the securities or
so-called "Blue Sky" laws of any state or other jurisdiction. In addition,
no opinion is expressed as to matters governed by the Transportation Code,
or by any other law, statute, rule or regulation of the United States
relating to the acquisition, ownership, registration, use, operation,
maintenance, repair, replacement or sale of or the nature of the Aircraft,
Airframe or the Engines.
We have made no examination of, and no opinion is given herein
as to the Owner Trustee's or Owner Participant's title to or other ownership
rights in, or the existence of any liens, charges or encumbrances on, or
adverse claims against, any of the Indenture Estate. We express no opinion as
to the creation, attachment, perfection or priority of any mortgage, security
interest or lien in any of the Indenture Estate.
With your permission and without investigation, with respect to
paragraphs 2, 3 and 4 below in connection with our opinion relating to the
legality, validity, binding effect of the documents there referred to, to the
extent that the laws of the State of Connecticut do not govern such documents,
we have assumed that the laws of the jurisdictions whose laws govern such
documents are not materially different from the internal substantive laws of
the State of Connecticut.
In rendering our opinion in paragraphs 12 and 13 below, we have
assumed that the Owner Participant acquired its interest in the Trust Estate
for fair consideration and in good faith without any intention to hinder,
defraud or defraud or delay the Owner Participant's creditors.
This opinion is rendered solely for the benefit of those
institutions listed on Schedule A hereto and their respective successors and
assigns in connection with the transactions contemplated by the Operative
Agreements and may not be used or relied upon by any other person or for any
other purpose.
Based upon the foregoing, we are of the opinion that:
1. State Street is a national banking association duly
organized, validly existing and in good standing with the Comptroller
of the Currency under the laws of the United States of America, is a
"citizen of the United States" within the meaning of Section
40102(a)(15) of Title 49 of the United States Code, as amended and
has full corporate power, authority and legal right to execute,
deliver and perform its obligations under the Trust Agreement and, as
Owner Trustee under the Trust Agreement, to execute, deliver and
perform its obligations under the other Owner Trustee Agreements and
to issue, execute, deliver and perform its obligations under the
Certificate.
2. State Street has duly authorized, executed, and delivered
the Participation Agreement and the Trust Agreement and the
Participation Agreement and the Trust Agreement constitute the legal,
valid and binding obligation of State Street, enforceable against it
in its individual capacity in accordance with the terms thereof.
3. The Owner Trustee is duly authorized under the Trust
Agreement to execute, deliver and perform each of the Owner Trustee
Agreements and each such Owner Trustee Agreement constitutes a legal,
valid and binding obligation of the Owner Trustee enforceable against
the Owner Trustee in accordance with its terms. The Certificate has
been duly issued, executed and delivered by the Owner Trustee,
pursuant to authorization contained in the Trust Agreement, and
assuming due authentication thereof by the Indenture Trustee,
constitutes the legal, valid and binding obligation of the Owner
Trustee enforceable against the Owner Trustee in accordance with its
terms and the terms of the Indenture; and the Certificate is entitled
to the benefits and security afforded by the Indenture in accordance
with its terms and the terms of the Indenture.
4. Assuming the due authorization, execution and delivery of
the Trust Agreement by the Owner Participant and that the Owner
Participant has the requisite corporate power and authority to enter
into and perform its obligations under the Trust Agreement, said
Trust Agreement constitutes the legal, valid and binding obligation
of the Owner Participant, enforceable against the owner Participant
in accordance with the terms thereof.
5. The Trust Agreement duly creates a legal and valid trust
under Connecticut law; the trust created by the Trust Agreement
exists for the benefit of the Owner Participant as provided therein
and creates for the benefit of the Owner Participant the interest in
the Trust Estate which the Trust Agreement by its terms purports to
create, subject however to the provisions of, and the Liens created
by, the Indenture and the Lease.
6. To the extent that the Uniform Commercial Code of the State
of Connecticut (the "UCC") is applicable, except for the Indenture
Trustee's taking possession of all monies and securities (including
instruments) constituting part of the Trust Indenture Estate, no
action, including the filing or recording of any document, is
necessary (i) to create under the UCC the security interest in the
Trust Indenture Estate (including the grant and assignment unto the
Indenture Trustee of the security interest in all estate, right,
title and interest of the Owner Trustee in, to and under the Lease
and the Participation Agreement) which the Indenture by its terms
purports to create in favor of the Indenture Trustee, and (ii) to
perfect in the State of Connecticut such security interest, except
for the filing of a UCC financing statement complying with the formal
requisites of Section 9-402 of the UCC in the office of the Division
of Corporations and Commercial Code of the State of Connecticut with
respect to the security interest, which filing has been duly
effected, and the filing of continuation statements with respect
thereto required to be filed at periodic intervals under the UCC.
7. Neither the execution, delivery or performance by the Owner
Trustee, in its individual capacity or as Owner Trustee, as the case
may be, of the Certificates or the Owner Trustee Documents, the
consummation by the Owner Trustee, in its individual capacity or as
Owner Trustee, as the case may be, of any of the transactions
contemplated thereby nor the compliance by the Owner Trustee, in its
individual capacity or as Owner Trustee, as the case may be, with any
of the terms and provisions thereof (i) requires any approval of its
stockholders, any consent or approval of or the giving of notice to
any trustees or holders of any indebtedness or obligations of it
known to us, or (ii) violates its charter documents or by-laws, or
contravenes or will contravene any provision of, or constitutes a
default under, or results in any breach of, or results in the
creation of any Lien (other than as permitted under the Operative
Agreements) upon property under, any indenture, mortgage, chattel
mortgage, deed of trust, conditional sales contract, bank loan or
credit agreement, license or other agreement or instrument, in each
case, known to us to which it is a party or by which it is bound or
contravenes any Connecticut or United States applicable law governing
the banking or trust powers of the Owner Trustee, or any judgment or
order in each case, known to us applicable to or binding on it.
8. To our knowledge, there are no proceedings or actions
pending or threatened against or affecting the Owner Trustee, in its
individual capacity or as Owner Trustee, before any governmental
authority which, individually or in the aggregate, if adversely
determined, would materially and adversely affect the ability of the
Owner Trustee, in its individual capacity or as Owner Trustee, as the
case may be, to enter into or to perform its obligations under the
Owner Trustee Documents or the Certificate.
9. No consent, approval, order or authorization of, giving of
notice to, or registration with, or taking of any other action in
respect of, any Connecticut or United States governmental authority
regulating the banking or trust powers of the Owner Trustee, in its
individual capacity, is required for the execution and delivery of,
or the carrying out by, the Owner Trustee in its individual capacity
or as Owner Trustee, as the case may be, of any of the transactions
contemplated by the Owner Trustee Documents, other than any such
consent, approval, order, authorization, registration, notice or
action as has been duly obtained, given or taken.
10. There are no fees, taxes or other charges payable by the
Owner Trustee, the Trust Estate or the trust created by the Trust
Agreement imposed by the State of Connecticut or any political
subdivision or taxing authority thereof in connection with the
execution, delivery and performance by State Street, individually or
as Owner Trustee, of the Owner Trust Documents (other than franchise
or other taxes based on or measured by any fees or compensation
received by State Street, acting as the Owner Trustee, for services
rendered in connection with the transactions contemplated by the
Operative Agreements) and, assuming that the trust created by the
Trust Agreement will not be taxable as a corporation, but, rather,
will be characterized as a grantor trust under subpart E, Part I of
Subchapter J of the Internal Revenue Code of 1986, as amended, or
will be otherwise ignored for Federal tax purposes, (i) such trust
will not be subject to any fees, taxes or other charges imposed by
the State of Connecticut or any political subdivision thereof based
on income, receipts, value or otherwise, (ii) Holders that are not
residents of or otherwise subject to tax in Connecticut will not be
subject to any taxes imposed by the State of Connecticut or any
political subdivision thereof as a result of purchasing, holding
(including receiving payments with respect to) or selling a
Certificate and (iii) assuming the Owner Participant is not a
Connecticut resident or otherwise subject to tax in Connecticut and
further assuming that the assets of the trust created by the Trust
Agreement are not deemed to be located in Connecticut, the Owner
Participant will not be subject to any taxes imposed by the State of
Connecticut or any political subdivision thereof solely as a result
of being the beneficial owner of the trust created by the Trust
Agreement.
11. To our knowledge, there exist no liens or encumbrances
affecting the right, title and interest of the Owner Trustee in and
to the Trust Estate resulting from claims against State Street not
related to the ownership of the Trust Estate or any other transaction
contemplated by the Operative Agreements.
12. All the properties which are part of the Indenture Estate
(including all right, title and interest of the Owner Trustee pledged
and mortgaged by it pursuant to the Indenture) have been pledged and
mortgaged with the Indenture Trustee as part of the Indenture Estate,
and the beneficial interest of the Owner Participant under the Trust
Agreement in and to such properties is subject, to the extent
provided in the Indenture, to the liens of the Indenture in favor of
the holders from time to time of the Certificate.
13. Neither a Connecticut court nor a Federal court applying
federal law or Connecticut law, if properly presented with the issue
and after having properly considered such issue, would permit the
Owner Participant to terminate the Trust Agreement, except as
otherwise provided therein, until the Lien of the Indenture on the
Indenture Estate has been released and until payment in full of the
principal of, and premium, if any, and interest on, the Certificates
and all other sums due the holders of the Certificates has been made.
14. Under the laws of the State of Connecticut, as long as the
Trust Agreement has not been terminated in accordance with its terms,
creditors of any person that is an Owner Participant, holders of a
lien against the assets of any such person and representatives of
creditors of any such person, such as trustees, receivers or
liquidators (whether or not any insolvency proceeding has been
commenced) (collectively the "Creditors") may acquire legal, valid
and enforceable claims and liens, as to the Trust Estate, only
against the beneficial interest of such person in the Trust Estate,
and do not have, and may not through the enforcement of such
Creditors' rights acquire, any other legal, valid, and enforceable
claim or lien against the Trust Estate.
Very truly yours,
Bingham, Dana & Gould LLP
SCHEDULE A
Lessee
Federal Express Corporation
2007 Corporate Avenue
Memphis, Tennessee 38132
Owner Trustee
State Street Bank and Trust Company
of Connecticut, National Association
Two International Place
4th Floor
Boston, Massachusetts 02110
Indenture Trustee, Pass Through Trustee & Subordination Agent
First Security Bank, National Association
79 South Main Street
Salt Lake City, Utah 84111
Owner Participant
PMCC Leasing Corporation
200 First Stamford Place
Stamford, Connecticut 06902
Underwriters
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
First Chicago Capital Markets, Inc.
Corporate Securities
One First National Plaza
Chicago, Illinois 60670
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
+J.P. Morgan & Co.
60 Wall Street
New York, New York 10260
Liquidity Provider
Kredietbank N.V., New York Branch
125 West 55th Street
New York, New York 10019
[Letterhead of Bingham, Dana & Gould]
[Certificate Closing Date]
To Each of the Parties Listed on Schedule A Hereto
Re: Trust Indenture and Security Agreement (Federal Express
Corporation Trust No. N673FE) dated as of May 1, 1997 (the
"Indenture"), between First Security Bank, National Association
(the "Indenture Trustee"), and State Street Bank and Trust
Company of Connecticut, National Association, not in its
individual capacity, but solely as Owner Trustee (the "Owner
Trustee")
Ladies and Gentlemen:
We have acted as special Connecticut counsel to the Owner
Trustee in connection with the Indenture and the Collateral Account Control
Agreement dated as of May 1, 1997 (the "Control Agreement"), among the Owner
Trustee, the Indenture Trustee and State Street Bank and Trust Company, as
Custodian (the "Custodian").
We are issuing this opinion solely in our capacity as counsel
to the Owner Trustee under the circumstances set forth in this paragraph and
solely as to the matters set forth herein. Pursuant to the Indenture, the
Owner Trustee purports to grant to the Indenture Trustee a security interest,
inter alia, in those securities and instruments, presently owned or hereafter
acquired by the Owner Trustee, that are from time to time credited to an
account numbered [*****] (the "Collateral Account") established by the Owner
Trustee with the Custodian and which securities and instruments the Owner
Trustee has directed the Custodian to identify on the books and records of the
Custodian as being subject to a security interest in favor of the Indenture
Trustee to secure the payment to the Indenture Trustee of the Owner Trustee's
obligations (the "Obligations") under the Indenture. Those securities and
instruments which the Owner Trustee has directed the Custodian to so identify
on the books of the Custodian as being subject to such security interest, and
which, at the time of reference thereto, have not been withdrawn from such
identification or the Collateral Account, are hereinafter referred to,
collectively, as the "Liquid Collateral." We have assumed with your
permission for purposes of this opinion that the Liquid Collateral consists
solely of (a) "securities", either "uncertificated securities" or
"certificated securities", as each such term is defined in Section 8-102 of
the Uniform Commercial Code as currently in effect in the State of Connecticut
(the "Connecticut UCC"), (b) "instruments" (as such term is defined in Section
9-105(1)(i) of the Connecticut UCC) and (c) "general intangibles" (as such
term is defined in Section 9-106 of the Connecticut UCC).
For purposes of this opinion, we have examined the Indenture,
the Control Agreement and such other documents and instruments as are referred
to as having been examined by us for purposes of our opinion letter dated May
___,1997, addressed to the parties listed on Schedule A hereto.
As to all matters of fact, we have examined and have relied
entirely upon the representations and warranties contained in and made
pursuant to the Indenture and the Control Agreement, without any independent
investigation of any kind.
We have assumed the genuineness of all signatures (other
than those on behalf of the Owner Trustee and the Custodian), the
conformity to the originals of all documents reviewed by us as copies, the
authenticity and completeness of all original documents reviewed by us in
original or copy form, and the legal competence of each individual
executing any document (other than on behalf of the Owner Trustee and the
Custodian).
For purposes of this opinion, we have made such examination of
law as we have deemed necessary. This opinion is limited solely to the
internal substantive laws of the State of Connecticut as applied by courts
located in the State of Connecticut and, where applicable, (i) the revised
Article 8 of the Uniform Commercial Code (with Conforming and Miscellaneous
Amendments to Articles 1, 3, 4, 5, 9 and 10) 1994 Official Text (the "Revised
Article 8") and (ii) the federal laws of the United States of America, in each
case without regard to choice of law. No opinion is given as to the choice of
law which any tribunal may apply to the transactions referred to herein.
Our opinion is further subject to the following exceptions,
qualifications and assumptions, all of which we understand to be acceptable to
you:
(a) We have assumed without any independent investigation
that each party to the transactions contemplated by the Indenture or
the Control Agreement at all times relevant thereto (other than the
Owner Trustee) was duly organized, validly existing and in good
standing under the laws of the jurisdiction in which it was
incorporated or organized, and had and has the full power, authority
and legal right under its certificate of incorporation, articles of
organization and other governing documents, corporate or other
enterprise legislation and applicable laws, as the case may be, to
execute and deliver and perform its obligations under all documents
executed by it in connection with those transactions.
(b) We have assumed without any independent investigation
(i) the due authorization, execution and delivery of each of the
Indenture and the Control Agreement by the Indenture Trustee, (ii)
that the execution, delivery and performance by the Indenture
Trustee of each of the Indenture and the Control Agreement does
not and will not conflict with, or result in a breach of, the
terms, conditions or provisions of, or result in a violation of,
or constitute a default or require any consent (other than such
consents as have been duly obtained) under, any organizational
document, any order, judgment, arbitration award or stipulation,
or any agreement, to which the Indenture Trustee is a party or is
subject or by which any of the properties or assets of the
Indenture Trustee is bound, (iii) that the Owner Trustee has
received "value," as defined under the Connecticut UCC, for the
incurrence of the Obligations, (iv) that, whenever the Custodian
receives instructions from the Owner Trustee for the Custodian to
note on its books and records that any securities or instruments
credited to the Collateral Account are to be subject to a security
interest in favor of the Indenture Trustee to secure the payment
of the Obligations, such instructions will have been duly
authorized by or on behalf of the Owner Trustee and (v) that, when
the Indenture Trustee is to act in connection with any of the
transactions contemplated by the Indenture, it is acting in its
capacity as Indenture Trustee.
(c) We have made no examination of, and no opinion is given
herein as to, the Owner Trustee's title to or other ownership rights
in, or the existence of any liens, charges or encumbrances on, or
adverse claims against, the Liquid Collateral, other than the
security interest in favor of the Indenture Trustee as contemplated
by the Indenture and the Control Agreement, and have assumed that the
Owner Trustee has, or at the time of any purported attachment of the
security interest in the relevant Liquid Collateral will have, rights
in the Liquid Collateral.
(d) The perfection and the effect of perfection and
non-perfection of a security interest in the Liquid Collateral that
comprises "uncertificated securities" are, pursuant to Section
9-103(6) of the Connecticut UCC, and the effectiveness of
registration by the issuer and the rights and duties of the issuer
with respect to the registration of transfer, pledge or release of an
"uncertificated security" are, pursuant to Section 8-106 of the
Connecticut UCC, in each case, governed by the laws of the respective
jurisdictions of organization of the issuer or issuers of such
securities, including the conflict of laws rules of such
jurisdictions. Therefore, we express no opinion with respect to such
matters regarding "uncertificated securities" issued by issuers
organized outside of the State of Connecticut other than book-entry
Treasury securities referred to below.
(e) We point out that, pursuant to Part 357 of Title 31 of
the United States Code of Federal Regulations ("CFR"), with
respect to United States "book-entry Treasury securities"
maintained by a Federal Reserve Bank and, pursuant to other
relevant sections of the CFR, with respect to various other
securities issued or guaranteed by the federal government of the
United States or an agency thereof or a corporation sponsored
thereby and maintained by a Federal Reserve Bank, the perfection
of security interests granted by commercial, non-governmental
parties in book-entry Treasury securities, or such other federal
securities, as the case may be, held in a securities account of a
participant financial institution, such as the Custodian,
maintaining such account with such Federal Reserve Bank, will be
governed by the law of the jurisdiction determined in accordance
with Section 357.11 of Title 31 of the CFR. If that jurisdiction
has not adopted Revised Article 8, then such jurisdiction will be
deemed to have adopted Revised Article 8 for purposes of
determining the law governing such perfection. Accordingly,
although Revised Article 8 has not been enacted by Connecticut as
part of the Connecticut UCC, nevertheless, pursuant to Part 357 of
Title 31 of the CFR, Revised Article 8 governs the perfection of a
security interest in book-entry Treasury securities to the extent
that Connecticut law would otherwise be applicable thereto.
(f) We have also assumed that (i) any securities comprised in
the Liquid Collateral and held by Depository Trust Company or another
clearing corporation will be held by Depository Trust Company or such
other clearing corporation for the direct account of the Custodian
and not for the account of the Custodian through any other financial
intermediary, (ii) any securities comprised in the Liquid Collateral
and not constituting either (x) "certificated securities" (as defined
in Section 8-102 of the Connecticut UCC) for which the Custodian
physically holds the certificate or certificates evidencing solely
such securities, or (y) "uncertificated securities" (as defined in
Section 8-102 of the Connecticut UCC) for which the Custodian is the
registered owner on the books of the issuer solely of such
securities, will constitute, or will be held as part of, a fungible
bulk of such "securities" that are registered in the name of the
Custodian or are shown on the Custodian's account on the books of
another financial intermediary, (iii) any "certificated securities"
(as defined in Section 8-102 of the Connecticut UCC) comprised in the
Collateral, if held directly by the Custodian, will be at all times
in the physical possession of the Custodian, and any other
"instruments" (as defined in Section 9-105(1)(i) of the Connecticut
UCC) comprised in the Collateral will be at all times held directly
by and in the physical possession of the Custodian, and (iv) any
securities comprised in the Liquid Collateral consisting of
"book-entry Treasury securities" or other uncertificated federal
securities will be credited to a direct account of the Custodian with
a Reserve Bank (as such term is defined in the relevant section of
the CFR) and not for the account of the Custodian through a financial
intermediary.
(g) We do not express any opinion as to the attachment or
perfection of any security interest in (i) any securities that are
maintained with, or held on the system of, Cedel S.A., or any like
maintenance, clearing or settlement system operating outside of the
United States of America, (ii) any collateral of a type other than
"securities" or "general intangibles" (as defined in Section 9-106 of
the Connecticut UCC) or "instruments" (as defined in Section
9-105(1)(i) of the Connecticut UCC), (iii) the Collateral Account, to
the extent that the Collateral Account constitutes an asset, other
than general intangibles, separate from the property credited
thereto, (iv) any Liquid Collateral which, at the time of reference
thereto, is no longer identified as subject to a security interest
in favor of the Indenture Trustee or has otherwise been withdrawn from
the Collateral Account, or (v) any identifiable proceeds of any Liquid
Collateral (A) following the lapse of the ten day period set forth in
Section 9-306(3) of the Connecticut UCC, to the extent that such
proceeds do not constitute securities, instruments or general
intangibles in which a security interest is perfected in the manner
contemplated by this opinion, as if such proceeds were original
Liquid Collateral, (B) where such proceeds constitute securities and
in which proceeds a security interest is not perfected in the manner
contemplated by this opinion, as if such proceeds were original
collateral, or (C) where the proceeds constitute collateral which is
excluded from Article 8 or 9 of the Connecticut UCC.
(h) We express no opinion as to the priority of such security
interest over any other or competing interest in or claims against
such Liquid Collateral.
(i) We have assumed that (i) the Custodian, in the ordinary
course of business, accepts for deposit securities as a service for
its customers, maintains securities accounts in the names of such
customers reflecting ownership of or interests in such securities,
and, in regard to the transactions contemplated by the Indenture, is
acting in such capacity, (ii) all securities from time to time
credited to the Collateral Account and to be comprised in the Liquid
Collateral will have been "transferred" (within the meaning of
Section 8-313(1) of the Connecticut UCC) to the Custodian by the
issuers or prior holders of such Liquid Collateral, (iii) the records
of the Custodian indicate and will, at the time of reference thereto,
indicate that the aggregate amount of each security comprised in the
Liquid Collateral, together with all other such securities carried by
the Custodian for its customers and for its proprietary account, is
at least equal to the aggregate amount of such security carried by it
for its customers and for its proprietary account, (iv) the books and
records of the Custodian indicate and will, at the time of reference
thereto, indicate that the securities to be comprised in the Liquid
Collateral are registered on the books and records of the Custodian
as being for the beneficial account of the Owner Trustee, subject to,
as identified on such books and records, the security interest
therein in favor of the Indenture Trustee, and (v) the Custodian has
sent and, at the time of reference thereto, will have sent the
confirmations of such entries and identifications to the Indenture
Trustee and to Federal Express Corporation.
(j) In so far as our opinion relates to the enforceability
of any obligations of the Owner Trustee, the enforcement of such
obligations may be limited by bankruptcy, insolvency,
reorganization, moratorium, marshalling or other laws and rules of
law affecting the enforcement generally of creditors' rights and
remedies (including such as may deny giving effect to waivers of
debtors' or guarantors' rights); and we express no opinion as to
(i) the status under Section 548 of the Bankruptcy Code and
applicable state fraudulent conveyance laws of the obligations of
the Owner Trustee under the Indenture or interests purported to be
granted pursuant to the Indenture, (ii) the enforceability of any
particular provision of the Indenture relating to remedies after
default or as to the availability of any specific or equitable
relief of any kind (and we point out that the enforcement of any
of your rights may in all cases be subject to an implied duty of
good faith and fair dealing and to general principles of equity,
regardless of whether such enforceability is considered in a
proceeding at law or in equity, and, as to any of your rights to
collateral security, will be subject to a duty to act in a
commercially reasonable manner) or (iii) the enforceability of any
particular provision of the Indenture relating to (A) waivers of
defenses, of rights to trial by jury, or rights to object to
jurisdiction or venue and other rights or benefits bestowed by
operation of law, (B) the effect of suretyship defenses, or
defenses in the nature thereof, with respect to obligations of any
applicable guarantor, joint obligator or surety, (C) waivers of
provisions which are not capable of waiver under Sections 1-102(3)
and 9-501(3) of the Connecticut UCC, (D) the grant of powers of
attorney to the Indenture Trustee, (E) exculpation clauses,
indemnity clauses and clauses relating to releases or waivers of
unmatured claims or rights, (F) interest or other charges that may
be usurious under applicable law, or (G) the collection of
interest on overdue interest or providing for a penalty rate of
interest or late charges on overdue or defaulted obligations.
However, notwithstanding the qualification set forth in the
foregoing clause (ii), and excluding the parenthetical in that
clause, subject to the other exceptions, qualifications and
limitations set forth in this opinion (including the parenthetical
in clause (ii) and subject to the fact that there may be economic
consequences arising out of any procedural or other delay on
account of the limitation or unenforceability of any particular
provision of the Indenture relating to remedies after default,
such limitation or unenforceability does not, in our judgment,
render the provisions of the Indenture and the Control Agreement
relating to remedies after default, taken as a whole, inadequate
for the practical realization of the benefits of enforcement of a
security interest in the Liquid Collateral following the receipt
by the Custodian of an enforcement notice properly given under the
Indenture and the Control Agreement by the Indenture Trustee to
the Custodian with respect to such Liquid Collateral.
(k) With respect to property as to which the security
interest purported to be granted pursuant to the Indenture
attaches after the date hereof, we call to your attention that
Section 552 of the Bankruptcy Code limits the extent to which
assets acquired by a debtor after the commencement of a case under
the United States Bankruptcy Code may be subject to a security
interest arising from a security agreement entered into by the
debtor before the commencement of such case. We further call to
your attention that under Section 547 of the Bankruptcy Code, a
security interest that attaches within the relevant period set
forth in Section 547(b)(4) of the Bankruptcy Code may be avoidable
under certain circumstances.
Based upon and subject to the foregoing, we are of the opinion
that:
1. The Indenture Trustee has, under the terms of the
Connecticut UCC and, in the case of book-entry Treasury
securities, under the CFR, a perfected security interest in the
Liquid Collateral that constitutes "securities" (as such term is
defined in Section 8-102 of the Connecticut UCC), or "instruments"
(as defined in Section 9-105(1)(i) of the Connecticut UCC), and in
the identifiable proceeds thereof to secure the payment of the
Obligations.
2. The Indenture creates, under the terms of the Connecticut
UCC, a valid security interest in such of the Liquid Collateral that
constitutes "general intangibles" (as such term is defined in Section
9-106 of the Connecticut UCC) and in the identifiable proceeds
thereof to secure the payment of the Obligations. Upon the filing of
a financing statement on form UCC-1 pursuant to the Connecticut UCC
with the Secretary of State of the State of Connecticut naming the
Owner Trustee as Debtor and the Indenture Trustee as Secured Party
and accurately describing the Liquid Collateral and the Collateral
Account, which filing has been duly effected, such security interest
will be perfected (to the extent that the perfection of a security
interest in the Liquid Collateral can be accomplished by the filing
in Connecticut of financing statements under the Connecticut UCC).
We point out that:
(a) The effectiveness of a financing statement will lapse (i)
on the expiration of a five-year period from their dates of filing,
or (if later) five years from the last date as to which such
financing statements were effective following the proper filing of
continuation statements with respect thereto, unless continuation
statements are filed within six months prior to the expiration of the
applicable five-year period, (ii) with respect to general intangibles
in which a security interest has been perfected by the filing of a
financing statement in the jurisdiction of the location of the
debtor, for a period of more than four months after the debtor has
changed its location from that jurisdiction to a new jurisdiction
unless such security is perfected in the new jurisdiction within the
earlier to occur of the end of such four month period or the date on
which such financing statement would have otherwise lapsed, and (iii)
with respect to "investment property," under and as defined in
Revised Article 8, in which a security interest has been perfected by
the filing of a financing statement in the jurisdiction of the
location of the debtor, from the time that the debtor changes its
location from that jurisdiction to a new jurisdiction unless such
security interest is perfected in the new jurisdiction on or before
the time of such change of location.
(b) If any debtor changes its name, identity or corporate
structure such that any financing statement becomes misleading, such
financing statement will be ineffective to perfect a security
interest in any collateral acquired by such debtor more than four
months after such change.
We assume no obligation to update this opinion as a result of
any change in any fact, circumstance or statute or other rule of law
occurring after the date hereof.
This opinion is delivered to you solely in connection with the
transactions referred to herein and for your sole use and no other
person or entity may rely on this opinion without our express written
consent.
Very truly yours,
Bingham, Dana & Gould LLP
SCHEDULE A
Lessee
Federal Express Corporation
2007 Corporate Avenue
Memphis, Tennessee 38132
Owner Trustee
State Street Bank and Trust Company
of Connecticut, National Association
Two International Place
4th Floor
Boston, Massachusetts 02110
Indenture Trustee, Pass Through Trustee & Subordination Agent
First Security Bank, National Association
79 South Main Street
Salt Lake City, Utah 84111
Owner Participant
PMCC Leasing Corporation
200 First Stamford Place
Stamford, Connecticut 06902
Underwriters
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
First Chicago Capital Markets, Inc.
Corporate Securities
One First National Plaza
Chicago, Illinois 60670
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
J.P. Morgan & Co.
60 Wall Street
New York, New York 10260
Liquidity Provider
Kredietbank N.V., New York Branch
125 West 55th Street
New York, New York 10019
Exhibit A(4)(a)(ii)
[Letterhead of Bingham, Dana & Gould]
[Delivery Date]
To Each of the Parties Listed on Schedule A Hereto
Re: Federal Express Corporation Trust No. N673FE
Ladies and Gentlemen:
We have acted as counsel to State Street Bank and Trust
Company of Connecticut, National Association, a national banking
association in its individual capacity ("State Street") and its capacity as
Owner Trustee (the "Owner Trustee") under the Trust Agreement (Federal
Express Corporation Trust No. N673FE) dated as of May 1, 1997 between
State Street and PMCC Leasing Corporation, as Owner Participant ("Owner
Participant") (the "Trust Agreement") in connection with the transactions
contemplated by that certain Participation Agreement (Federal Express
Corporation Trust No. N673FE) dated as of May 1, 1997 (the "Participation
Agreement") by and among Federal Express Corporation (the "Lessee"); the
Owner Participant; and First Security Bank, National Association, in its
individual capacity and as Indenture Trustee (the "Indenture Trustee"),
Pass Through Trustee and Subordination Agent. Except as otherwise defined
herein, all capitalized terms used herein shall have the respective
meanings set forth in, or by reference to, the Participation Agreement.
The Owner Trustee has requested that we deliver this Opinion to
you in accordance with Section 4.02 of the Participation Agreement.
Our representation of State Street has been as special counsel
for the purposes stated above. As to all matters of fact (including factual
conclusions and characterizations and descriptions of purpose, intention or
other state of mind), we have relied entirely upon (i) the representations of
the parties set forth in the Operative Agreements and (ii) certificates
delivered to us by the management of State Street and have assumed, without
independent inquiry, the accuracy of those representations and certificates.
We have examined each of the Operative Agreements to which
State Street or the Owner Trustee, as applicable is a party (the "Owner
Trustee Documents"), the Certificate of the Comptroller of the Currency
relating to State Street and originals, or copies certified or otherwise
identified to our satisfaction, of such other corporate records, documents,
certificates and other instruments as we have deemed necessary or advisable
for the purposes of rendering this opinion.
We have assumed the genuineness of all signatures (other than
those on behalf of State Street and the Owner Trustee), the conformity to the
originals of all documents reviewed by us as copies, the authenticity and
completeness of all original documents reviewed by us in original or copy form
and the legal competence of each individual executing any document (other than
on behalf of State Street and the Owner Trustee).
When an opinion set forth below is given to the best of our
knowledge, or to our knowledge, or with reference to matters of which we are
aware or which are known to us, or with another similar qualification, the
relevant knowledge or awareness is limited to the actual knowledge or
awareness of the individual lawyer in the firm that signed this opinion, the
individual lawyers in the firm who have participated directly in the specific
transactions to which this opinion relates or in the preparation of this
opinion and the partner of the firm responsible for State Street corporate
trust matters, and without any special or additional investigation undertaken
for the purposes of this opinion.
Each opinion set forth below relating to the enforceability of
any agreement or instrument against State Street, the Owner Trustee or the
Owner Participant, as applicable, is subject to the following general
qualifications:
(i) as to any agreement to which State Street or the
Owner Trustee, as applicable, is a party, we assume that such
agreement is the legal, valid and binding obligation or each other
party thereto;
(ii) except as otherwise set forth in our opinions 13
and 14 below, the enforceability of any obligation of State
Street, the Owner Trustee and the Owner Participant, may be
limited by bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium, marshaling, or other similar laws and
rules of law affecting the enforcement generally of creditors'
rights and remedies (including such as may deny giving effect to
waivers of debtors' or guarantors' rights);
(iii) no opinion is given herein as to the
enforceability of any particular provision of any of the Owner
Trustee Documents relating to remedies after default or as to the
availability of any specific or equitable relief of any kind.
However, we are of the opinion that, subject to the other
limitations and qualifications contained in this opinion, the
remedies provided in the Owner Trustee Documents, taken as a
whole, are adequate for the realization of the principal benefits
or security of said agreements (except for the economic
consequences of procedural or other delay); and
(iv) the enforcement of any rights and the
availability of any specific or equitable relief of any kind may
in all cases be subject to an implied duty of good faith and to
general principles of equity (regardless of whether such
enforceability or relief is considered in a proceeding at law or
in equity) and, as to any of your rights to collateral security,
will be subject to a duty to act in a commercially reasonable
manner.
Subject to the limitations set forth herein, we have made
such examination of law as we have deemed necessary for the purposes of
this opinion. The opinions expressed herein are limited solely to the
internal substantive laws of the State of Connecticut and the Federal laws
of the United States of America. No opinion is expressed herein as to the
application or effect of federal securities laws or as to the securities or
so-called "Blue Sky" laws of any state or other jurisdiction. In addition,
no opinion is expressed as to matters governed by the Transportation Code,
or by any other law, statute, rule or regulation of the United States
relating to the acquisition, ownership, registration, use, operation,
maintenance, repair, replacement or sale of or the nature of the Aircraft,
Airframe or the Engines.
We have made no examination of, and no opinion is given herein
as to the Owner Trustee's or Owner Participant's title to or other ownership
rights in, or the existence of any liens, charges or encumbrances on, or
adverse claims against, any of the Indenture Estate. We express no opinion as
to the creation, attachment, perfection or priority of any mortgage, security
interest or lien in any of the Indenture Estate.
With your permission and without investigation, with respect to
paragraphs 2, 3 and 4 below in connection with our opinion relating to the
legality, validity, binding effect of the documents there referred to, to the
extent that the laws of the State of Connecticut do not govern such documents,
we have assumed that the laws of the jurisdictions whose laws govern such
documents are not materially different from the internal substantive laws of
the State of Connecticut.
In rendering our opinion in paragraphs 12 and 13 below, we have
assumed that the Owner Participant acquired its interest in the Trust Estate
for fair consideration and in good faith without any intention to hinder,
defraud or defraud or delay the Owner Participant's creditors.
This opinion is rendered solely for the benefit of those
institutions listed on Schedule A hereto and their respective successors and
assigns in connection with the transactions contemplated by the Operative
Agreements and may not be used or relied upon by any other person or for any
other purpose.
Based upon the foregoing, we are of the opinion that:
1. State Street is a national banking association duly
organized, validly existing and in good standing with the Comptroller
of the Currency under the laws of the United States of America, is a
"citizen of the United States" within the meaning of Section
40102(a)(15) of Title 49 of the United States Code, as amended and
has or had, on the date of execution thereof, full corporate power,
authority and legal right to execute, deliver and perform its
obligations under the Trust Agreement and, as Owner Trustee under the
Trust Agreement, to execute, deliver and perform its obligations
under the other Owner Trustee Agreements and to issue, execute,
deliver and perform its obligations under the Certificate.
2. State Street has or had, on the date of execution thereof,
duly authorized, executed, and delivered the Participation Agreement
and the Trust Agreement and the Participation Agreement and the Trust
Agreement constitute the legal, valid and binding obligation of State
Street, enforceable against it in its individual capacity in
accordance with the terms thereof.
3. The Owner Trustee is duly authorized under the Trust
Agreement to execute, deliver and perform each of the Owner Trustee
Agreements and each such Owner Trustee Agreement constitutes a legal,
valid and binding obligation of the Owner Trustee enforceable against
the Owner Trustee in accordance with its terms. The Certificate has
been duly issued, executed and delivered by the Owner Trustee,
pursuant to authorization contained in the Trust Agreement, and
assuming due authentication thereof by the Indenture Trustee,
constitutes the legal, valid and binding obligation of the Owner
Trustee enforceable against the Owner Trustee in accordance with its
terms and the terms of the Indenture; and the Certificate is entitled
to the benefits and security afforded by the Indenture in accordance
with its terms and the terms of the Indenture.
4. Assuming the due authorization, execution and delivery of
the Trust Agreement by the Owner Participant and that the Owner
Participant has the requisite corporate power and authority to enter
into and perform its obligations under the Trust Agreement, said
Trust Agreement constitutes the legal, valid and binding obligation
of the Owner Participant, enforceable against the owner Participant
in accordance with the terms thereof.
5. The Trust Agreement duly creates a legal and valid trust
under Connecticut law; the trust created by the Trust Agreement
exists for the benefit of the Owner Participant as provided therein
and creates for the benefit of the Owner Participant the interest in
the Trust Estate which the Trust Agreement by its terms purports to
create, subject however to the provisions of, and the Liens created
by, the Indenture and the Lease.
6. To the extent that the Uniform Commercial Code of the State
of Connecticut (the "UCC") is applicable, except for the Indenture
Trustee's taking possession of all monies and securities (including
instruments) constituting part of the Trust Indenture Estate, no
action, including the filing or recording of any document, is
necessary (i) to create under the UCC the security interest in the
Trust Indenture Estate (including the grant and assignment unto the
Indenture Trustee of the security interest in all estate, right,
title and interest of the Owner Trustee in, to and under the Lease
and the Participation Agreement) which the Indenture by its terms
purports to create in favor of the Indenture Trustee, and (ii) to
perfect in the State of Connecticut such security interest, except
for the filing of a UCC financing statement complying with the formal
requisites of Section 9-402 of the UCC in the office of the Division
of Corporations and Commercial Code of the State of Connecticut with
respect to the security interest, which filing has been duly
effected, and the filing of continuation statements with respect
thereto required to be filed at periodic intervals under the UCC.
7. Neither the execution, delivery or performance by the Owner
Trustee, in its individual capacity or as Owner Trustee, as the case
may be, of the Certificates or the Owner Trustee Documents, the
consummation by the Owner Trustee, in its individual capacity or as
Owner Trustee, as the case may be, of any of the transactions
contemplated thereby nor the compliance by the Owner Trustee, in its
individual capacity or as Owner Trustee, as the case may be, with any
of the terms and provisions thereof (i) requires any approval of its
stockholders, any consent or approval of or the giving of notice to
any trustees or holders of any indebtedness or obligations of it
known to us, or (ii) violates its charter documents or by-laws, or
contravenes or will contravene any provision of, or constitutes a
default under, or results in any breach of, or results in the
creation of any Lien (other than as permitted under the Operative
Agreements) upon property under, any indenture, mortgage, chattel
mortgage, deed of trust, conditional sales contract, bank loan or
credit agreement, license or other agreement or instrument, in each
case, known to us to which it is a party or by which it is bound or
contravenes any Connecticut or United States applicable law governing
the banking or trust powers of the Owner Trustee, or any judgment or
order in each case, known to us applicable to or binding on it.
8. To our knowledge, there are no proceedings or actions
pending or threatened against or affecting the Owner Trustee, in its
individual capacity or as Owner Trustee, before any governmental
authority which, individually or in the aggregate, if adversely
determined, would materially and adversely affect the ability of the
Owner Trustee, in its individual capacity or as Owner Trustee, as the
case may be, to enter into or to perform its obligations under the
Owner Trustee Documents or the Certificate.
9. No consent, approval, order or authorization of, giving of
notice to, or registration with, or taking of any other action in
respect of, any Connecticut or United States governmental authority
regulating the banking or trust powers of the Owner Trustee, in its
individual capacity, is required for the execution and delivery of,
or the carrying out by, the Owner Trustee in its individual capacity
or as Owner Trustee, as the case may be, of any of the transactions
contemplated by the Owner Trustee Documents, other than any such
consent, approval, order, authorization, registration, notice or
action as has been duly obtained, given or taken.
10. There are no fees, taxes or other charges payable by the
Owner Trustee, the Trust Estate or the trust created by the Trust
Agreement imposed by the State of Connecticut or any political
subdivision or taxing authority thereof in connection with the
execution, delivery and performance by State Street, individually or
as Owner Trustee, of the Owner Trust Documents (other than franchise
or other taxes based on or measured by any fees or compensation
received by State Street, acting as the Owner Trustee, for services
rendered in connection with the transactions contemplated by the
Operative Agreements) and, assuming that the trust created by the
Trust Agreement will not be taxable as a corporation, but, rather,
will be characterized as a grantor trust under subpart E, Part I of
Subchapter J of the Internal Revenue Code of 1986, as amended, or
will be otherwise ignored for Federal tax purposes, (i) such trust
will not be subject to any fees, taxes or other charges imposed by
the State of Connecticut or any political subdivision thereof based
on income, receipts, value or otherwise, (ii) Holders that are not
residents of or otherwise subject to tax in Connecticut will not be
subject to any taxes imposed by the State of Connecticut or any
political subdivision thereof as a result of purchasing, holding
(including receiving payments with respect to) or selling a
Certificate and (iii) assuming the Owner Participant is not a
Connecticut resident or otherwise subject to tax in Connecticut and
further assuming that the assets of the trust created by the Trust
Agreement are not deemed to be located in Connecticut, the Owner
Participant will not be subject to any taxes imposed by the State of
Connecticut or any political subdivision thereof solely as a result
of being the beneficial owner of the trust created by the Trust
Agreement.
11. The Owner Trustee has received such title to the Aircraft
as has been conveyed to it subject to the rights of the Owner Trustee
and the Lessee under the Lease and the security interest created
pursuant to the Indenture and the Lease; and to our knowledge, there
exist no liens or encumbrances affecting the right, title and
interest of the Owner Trustee in and to the Trust Estate resulting
from claims against State Street not related to the ownership of the
Trust Estate or any other transaction contemplated by the Operative
Agreements.
12. All the properties which are part of the Indenture Estate
(including all right, title and interest of the Owner Trustee pledged
and mortgaged by it pursuant to the Indenture) have been pledged and
mortgaged with the Indenture Trustee as part of the Indenture Estate,
and the beneficial interest of the Owner Participant under the Trust
Agreement in and to such properties is subject, to the extent
provided in the Indenture, to the liens of the Indenture in favor of
the holders from time to time of the Certificate.
13. Neither a Connecticut court nor a Federal court applying
federal law or Connecticut law, if properly presented with the issue
and after having properly considered such issue, would permit the
Owner Participant to terminate the Trust Agreement, except as
otherwise provided therein, until the Lien of the Indenture on the
Indenture Estate has been released and until payment in full of the
principal of, and premium, if any, and interest on, the Certificates
and all other sums due the holders of the Certificates has been made.
14. Under the laws of the State of Connecticut, as long as the
Trust Agreement has not been terminated in accordance with its terms,
creditors of any person that is an Owner Participant, holders of a
lien against the assets of any such person and representatives of
creditors of any such person, such as trustees, receivers or
liquidators (whether or not any insolvency proceeding has been
commenced) (collectively the "Creditors") may acquire legal, valid
and enforceable claims and liens, as to the Trust Estate, only
against the beneficial interest of such person in the Trust Estate,
and do not have, and may not through the enforcement of such
Creditors' rights acquire, any other legal, valid, and enforceable
claim or lien against the Trust Estate.
Very truly yours,
Bingham, Dana & Gould LLP
SCHEDULE A
Lessee
Federal Express Corporation
2007 Corporate Avenue
Memphis, Tennessee 38132
Owner Trustee
State Street Bank and Trust Company
of Connecticut, National Association
Two International Place
4th Floor
Boston, Massachusetts 02110
Indenture Trustee, Pass Through Trustee & Subordination Agent
First Security Bank, National Association
79 South Main Street
Salt Lake City, Utah 84111
Owner Participant
PMCC Leasing Corporation
200 First Stamford Place
Stamford, Connecticut 06902
Underwriters
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
First Chicago Capital Markets, Inc.
Corporate Securities
One First National Plaza
Chicago, Illinois 60670
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
J.P. Morgan & Co.
60 Wall Street
New York, New York 10260
Liquidity Provider
Kredietbank N.V., New York Branch
125 West 55th Street
New York, New York 10019
EXHIBIT A(5)
[Letterhead of Ray, Quinney & Nebeker]
[Certificate Closing Date]
To the Persons Listed in Schedule A Attached Hereto
Re: Federal Express Corporation Trust No. N673FE
Ladies and Gentlemen:
We have acted as special counsel to First Security Bank,
National Association, a national banking association ("First Security"), in
connection with the Pass Through Trust Agreement dated as of May 1, 1997
(the "Pass Through Trust Agreement"), as supplemented by the Series
Supplements dated the date hereof between Federal Express Corporation and
the First Security, not in its individual capacity, except as otherwise
stated, but solely as Pass Through Trustee, designated as Series Supplement
1997-1-A, 1997-1-B and 1997-1-C, respectively (the "Series Supplements")
and the Participation Agreement (Federal Express Corporation Trust No.
N673FE), dated as of May 1, 1997 (the "Participation Agreement"), among
Federal Express Corporation, as Lessee, PMCC Leasing Corporation, as Owner
Participant, State Street Bank and Trust Company of Connecticut, National
Association, not in its individual capacity, except as otherwise stated,
but solely as Owner Trustee, and First Security, not in its individual
capacity, except as otherwise stated, but solely as Indenture Trustee, Pass
Through Trustee and Subordination Agent. Pursuant to the Participation
Agreement, one Airbus A300F4-605R aircraft bearing U.S. Registration No.
N673FE (the "Aircraft") is being financed. This opinion is furnished
pursuant to Section 4.01(k)(iv) of the Participation Agreement.
Capitalized terms used herein and not otherwise defined are used as defined
in the Participation Agreement, except that references herein to any
instrument shall mean such instrument as in effect on the date hereof.
We have examined executed counterparts or copies otherwise
identified to our satisfaction of the following documents:
(a) The Pass Through Trust Agreement;
(b) The Series Supplements;
(c) The Pass Through Certificates;
(d) The Participation Agreement;
(e) The Intercreditor Agreement; and
(f) Each Liquidity Facility.
(each of the documents identified in paragraphs (a) through (e) are being
collectively referred to as the "Pass Through Trustee Documents" and each of
the documents identified in paragraphs (d) through (f) are being collectively
referred to as the "Subordination Agent Documents").
We have also examined originals or copies of such other
documents, such corporate records, certificates and other statements of
governmental officials and corporate officers and other representatives of the
corporations or entities referred to herein and such other instruments as we
have deemed necessary or appropriate for the purposes of this opinion.
Moreover, as to certain facts material to the opinions expressed herein, we
have relied upon representations and warranties contained in the Pass Through
Trustee Documents or the Subordination Agent Documents, as the case may be.
Based upon the foregoing and upon an examination of such
questions of law as we have considered necessary or appropriate, and subject
to the assumptions, exceptions and qualifications set forth below, we advise
you that, in our opinion:
With respect to the opinions set forth in paragraph 8 above,
with your permission we have relied upon, and this opinion is limited by, the
assumptions set forth in the discussion entitled "Certain Utah Taxes" in the
Prospectus Supplement to the Prospectus forming part of Registration Number
No. 333-07691 (the "Registration Statement") for the registration of the Pass
Through Certificates with the Securities and Exchange Commission. We express
no opinion as to the correctness of the foregoing assumptions and we have
conducted no independent investigation in this regard.
1. First Security is a national banking association duly
organized and validly existing under the laws of the United States of
America holding a valid certificate to do business as a national
banking association, with banking and trust powers.
2. Each of First Security, the Pass Through Trustee and the
Subordination Agent, as the case may be, has or had, on the date of
execution thereof, full corporate power, authority and legal right to
execute, deliver and perform each of the Pass Through Trustee
Documents and the Subordination Agent Documents, as the case may be,
and to authenticate the Pass Through Certificates delivered on the
Certificate Closing Date.
3. Each of First Security, the Pass Through Trustee and the
Subordination Agent has duly authorized, executed and delivered each
Pass Through Trustee Document or Subordination Agent Document, as the
case may be; each such document constitutes a legal, valid and
binding obligation of the Pass Through Trustee or the Subordination
Agent, as the case may be (and, to the extent set forth in the
respective Pass Through Trustee Document or Subordination Agent
Document, of First Security) enforceable against the Pass Through
Trustee or the Subordination Agent, as the case may be (and, to the
extent set forth in the respective Pass Through Trustee Document or
Subordination Agent Document, against First Security) in accordance
with its terms.
4. The Pass Through Certificates issued and dated the
Certificate Closing Date have been duly authorized and validly
executed, issued, delivered and authenticated by the Pass Through
Trustee pursuant to the Pass Through Trust Agreement and the Series
Supplements; and the Pass Through Certificates acquired by the
Underwriters under the Underwriting Agreement are enforceable against
the Pass Through Trustee and are entitled to the benefits of the
related Pass Through Trust Agreement and the related Series
Supplements.
5. No order, license, consent, permit, authorization or
approval of or exemption by, and no notice to or filing with, or the
taking of any other action in respect of, any Utah or Federal
governmental authority governing the banking or trust powers of First
Security, the Pass Through Trustee or the Subordination Agent, and no
filing, recording, publication or registration in any public office
is required under Utah or Federal law pertaining to its banking or
trust powers for the due execution, delivery or performance by First
Security, individually or as Pass Through Trustee or Subordination
Agent, as the case may be, of the Pass Through Trustee Documents
(other than the Pass Through Trust Agreement) or the Subordination
Agent Documents, as the case may be, and of the certificate of
authentication, as Pass Through Trustee, on the Pass Through
Certificates, or for the legality, validity, binding effect or
enforceability thereof against First Security, the Pass Through
Trustee or the Subordination Agent, as the case may be.
6. The execution, delivery and performance by the Pass
Through Trustee or First Security, as the case may be, of each of
the Pass Through Documents and the Subordination Agent or First
Security, as the case may be, of each of the Subordination Agent
Documents, and the issuance, execution, delivery and performance
of the Pass Through Certificates by the Pass Through Trustee are
not or were not, on the date of execution thereof, in violation of
the charter or by-laws of First Security or of any law,
governmental rule, or regulation of the State of Utah or the
United States of America governing the banking or trust powers of
First Security or, to our knowledge, of any indenture, mortgage,
bank credit agreement, note or bond purchase agreement, long-term
lease, license or other agreement or instrument to which it is a
party or by which it is bound or, to our knowledge, of any
judgment or order of the State of Utah or the United States of
America relating to the banking or trust powers of First Security.
7. There are no actions, suits, investigations or
proceedings pending or, to our knowledge, threatened against or
affecting First Security, the Pass Through Trustee or the
Subordination Agent or any of its properties in any court or
before any administrative agency or arbitrator, which, if
adversely determined, would materially adversely affect the
ability of First Security, the Pass Through Trustee or the
Subordination Agent, as the case may be, to perform its
obligations under any of the Pass Through Trustee Documents or the
Subordination Agent Documents, as the case may be, and there are
no pending or, to our knowledge, threatened actions or proceedings
before any court, administrative agency or tribunal involving
First Security, the Pass Through Trustee or the Subordination
Agent in connection with the transactions contemplated by any of
the Pass Through Trustee Documents or the Subordination Agent
Documents, as the case may be.
8. Neither the trusts created by the Pass Through Trust
Agreement and the Series Supplements nor the Pass Through Trustee,
in its individual or trust capacity, as the case may be, nor their
respective Affiliates, successors or assigns, will be subject to
any tax (including, without limitation, net or gross income,
tangible or intangible property, net worth, capital, franchise or
doing business tax), fee or other governmental charge under the
laws of the State of Utah or any political subdivision thereof
(other than taxes imposed on the fees received by State Street
Bank and Trust Company for acting as Pass Through Trustee under
the Series Supplements). Certificate holders who are not
residents of or otherwise subject to tax in Utah will not be
subject to any tax (including, without limitation, net or gross
income, tangible or intangible property, net worth, capital,
franchise or doing business tax), fee or other governmental charge
under the laws of the State of Utah or any political subdivision
thereof as a result of purchasing, owning (including receiving
payments with respect to) or selling a Pass Through Certificate.
There are no applicable taxes under the laws of the State of Utah
or any political subdivision thereof upon or with respect to (a)
the construction, mortgaging, financing, refinancing, purchase,
acquisition, acceptance, rejection, delivery, nondelivery,
transport, location, ownership, insurance, control, assembly,
possession, repossession, operation, use, condition, maintenance,
repair, sale, return, abandonment, replacement, preparation,
installation, storage, redelivery, manufacture, leasing,
subleasing, modification, rebuilding, importation, transfer of
title, transfer of registration, exportation or other application
or disposition of the Aircraft or any interest in any thereof, (b)
payments of Rent or other receipts, income or earnings arising
therefrom or received with respect to the Aircraft or any interest
in any thereof or payable pursuant to the Lease, (c) any amount
paid or payable pursuant to any Operative Agreements, (d) the
Aircraft or any interest therein or the applicability of the Lease
to the Aircraft or any interest in any thereof, (e) any or all of
the Operative Agreements, any or all of the Pass Through
Certificates or any interest in any or all thereof or the
offering, registration, reregistration, issuance, acquisition,
modification, assumption, reissuance, refinancing or refunding of
any or all thereof, and any other documents contemplated thereby
and amendments or supplements hereto and thereto, (f) the payment
of the principal of, or interest or premium on, or other amounts
payable with respect to, any or all of the Pass Through
Certificates, whether as originally issued or pursuant to any
refinancing, refunding, assumption, modification or reissuance, or
any other obligation evidencing any loan in replacement of the
loan evidenced by any or all of the Pass Through Certificates, or
(g) otherwise with respect to or in connection with the
transactions contemplated by the Pass Through Trust Agreement, the
Series Supplements, the Pass Through Certificates and the
Operative Agreements, which would not have been imposed if the
Pass Through Trustee had not had its principal place of business
in, had not performed (either in its individual capacity or as
Pass Through Trustee) any or all of its administrative duties
under the Pass Through Trust Agreement, the Series Supplements,
the Pass Through Certificates and the Operative Agreements in, and
had not engaged in any activities unrelated to the transactions
contemplated by the Pass Through Trust Agreement, the Series
Supplements, the Pass Through Certificates and the Operative
Agreements in, the State of Utah.
9. Each of the Certificates to be delivered to and registered
in the name of the Subordination Agent on the date hereof pursuant to
the Participation Agreement and the Intercreditor Agreement will be
held by the Subordination Agent in trust for the Pass Through Trustee
under the applicable Pass Through Trust Agreement.
Very truly yours,
Ray, Quinney & Nebeker
SCHEDULE A
Lessee
Federal Express Corporation
2007 Corporate Avenue
Memphis, Tennessee 38132
Owner Trustee
State Street Bank and Trust Company
of Connecticut, National Association
Two International Place
4th Floor
Boston, Massachusetts 02110
Indenture Trustee, Pass Through Trustee & Subordination Agent
First Security Bank, National Association
79 South Main Street
Salt Lake City, Utah 84111
Owner Participant
PMCC Leasing Corporation
200 First Stamford Place
Stamford, Connecticut 06902
Underwriters
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
First Chicago Capital Markets, Inc.
Corporate Securities
One First National Plaza
Chicago, Illinois 60670
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
J.P. Morgan & Co.
60 Wall Street
New York, New York 10260
Liquidity Provider
Kredietbank N.V., New York Branch
125 West 55th Street
New York, New York 10019
EXHIBIT A(6)(a)
[Letterhead of Kredietbank N.V.]
[Certificate Closing Date]
To Each of the Parties named on Schedule A Hereto
Re: Federal Express Corporation 1997-1
Enhanced Pass Through Certificates
Ladies and Gentlemen:
I am the manager of the Legal Department of Kredietbank N.V.
("Kredietbank") and have advised Kredietbank and its New York Branch (the
"Branch") in connection with (i) the Irrevocable Revolving Credit Agreement
Class A Certificates, dated as of May 1, 1997 (the "Class A Liquidity
Agreement"), between the Branch and First Security Bank, National
Association, a national banking association, as Subordination Agent under
the Intercreditor Agreement, defined below, and as agent and trustee for
the Federal Express Corporation Pass Through Trust 1997-1-A, (ii) the
Irrevocable Revolving Credit Agreement Class B Certificates, dated as of
May 1, 1997 (the "Class B Liquidity Agreement"), between the Branch and
First Security Bank, National Association, a national banking association,
as Subordination Agent under the Intercreditor Agreement, defined below,
and as agent and trustee for the Federal Express Corporation Pass Through
Trust 1997-1-B (the "Intercreditor Agreement" and, together with the
Liquidity Agreements, the "Liquidity Documents"), and (iii) the
Intercreditor Agreement, dated as of May 1, 1997 (the "Intercreditor
Agreement"), among the Branch, First Security Bank, National Association,
as Pass Through Trustee and as Subordination Agent (the Liquidity
Agreements and the Intercreditor Agreement are hereinafter collectively the
"Liquidity Documents").
Capitalized terms herein which are undefined have the meanings
assigned to them in the Liquidity Documents.
I am rendering this opinion in my capacity as manager of the
Legal Department and without being personally liable to any extent for the
opinions expressed herein.
In connection with the opinions hereinafter given, I have
examined a copy of each of the Liquidity Documents and such other
certificates, documents, agreements and instruments as I have deemed
necessary as a basis for the opinions expressed below.
In such examination, I have assumed the genuineness of all
signatures, the authenticity of all agreements, certificates, instruments and
documents submitted to me as originals, and the conformity to the originals of
all agreements, certificates, instruments and documents submitted to me as
copies. As to questions of fact material to the opinions expressed below, I
have, when relevant facts were not independently established by me, examined
and relied upon representations of officers of Kredietbank.
Based upon the foregoing examination and assumptions, and
subject to the qualifications set forth below, I am of the opinion that:
1. Kredietbank is duly organized and validly existing as a
Belgian public law banking institution under the law of Belgium and
has full power and authority (corporate and otherwise) to execute,
deliver and perform the Liquidity Documents.
2. [Tod Angus] or [Robert Snauffer], acting together with
[Jean Glasgow], if acting for and on behalf of the Branch, are
duly authorized by Kredietbank to execute and deliver the
Liquidity Documents for and on behalf of the Branch. Assuming
each of the Liquidity Documents has been duly executed and
delivered for and on behalf of the Branch by such persons, no
further authorization by or any corporate action of Kredietbank is
required in connection with the execution, delivery and
performance thereof.
3. The governing-law clause, subjecting the Liquidity
Documents to New York law, is valid under Belgian law.
(i) Under Belgian law, New York law will be applied to an
agreement, such as the Liquidity Documents, which under Belgian
law has been validly subjected to New York laws.
(ii) (a) None of the terms of the Liquidity Documents
is irreconcilable with important principles of Belgian law,
and (b) there are no mandatory provisions of Belgian law
which must be applied to the transactions covered by the
Liquidity Documents.
(iii) Each of the Liquidity Documents constitutes the
legal, valid and binding obligation of Kredietbank,
enforceable against Kredietbank in accordance with its
terms, the rules of civil procedures of Belgium and the
applicable provisions of the chosen law of New York.
4. No authorization, consent, approval or other action by,
and no notice to or filing with, any governmental, administrative
or other authority or court of Belgium is required for the
execution or delivery of the Liquidity Documents by Kredietbank
through the Branch or for the performance by Kredietbank or by the
Branch of the Liquidity Documents.
5. The execution, delivery and performance of the Liquidity
Documents by Kredietbank or the Branch will not result in any
violation by Kredietbank or by the Branch of any law of Belgium.
6. The contractual obligations incurred by virtue of the
execution and delivery of the Liquidity Documents for and on behalf
of the Branch are the obligations of Kredietbank, and Kredietbank has
no defenses against the performance of such obligations which are
based on the fact that Kredietbank had acted through the Branch in
executing and delivering the Liquidity Documents.
7. If a final and conclusive judgment of the Supreme Court of
the State of New York, New York County, or of the Untied States
District Court for the Southern District of New York for a definite
sum for the recovery of amounts due and unpaid under the Liquidity
Documents were to be rendered against Kredietbank, a reexamination or
relitigation on the merits of the subject matter thereof in
accordance with Article 570 of the Belgian Judicial Code would be
necessary in order to obtain recognition and/or enforcement of such
judgment in Belgium.
8. The obligations of Kredietbank under the Liquidity
Documents rank at least equal in priority of payment and in all
other respects with its obligations to pay any other unsecured and
unsubordinated obligations of Kredietbank for borrowed money,
including deposit liabilities, that are not expressly preferred by
law.
The foregoing opinions are subject to the following
qualifications:
(i) The opinion in paragraph (3) with respect to
enforceability is subject to the effect of any bankruptcy,
insolvency, reorganization, moratorium, liquidation or similar
laws affecting creditors' rights generally, applicable to
Kredietbank and to any law or general principle of law from
time to time in effect in Belgium that could be considered by
the Belgian Courts as a provision of public policy.
(ii) In giving the opinions in paragraphs (3)(iii), (6) and
(8), I have assumed, with your consent, that each of the
Liquidity Documents is legal, valid and binding under New York
law, all as set forth more fully in the opinion dated of even
date herewith of Milbank, Tweed, Hadley & McCloy issued in
connection with the Liquidity Documents.
(iii) No opinion is expressed with respect to the law of any
jurisdiction other than the law of Belgium.
This opinion is being furnished to you solely for your benefit
in connection with the transactions described above and may not be used,
circulated, quoted or otherwise referred to for any other purpose without my
express written consent.
Very truly yours,
SCHEDULE A
Lessee
Federal Express Corporation
2007 Corporate Avenue
Memphis, Tennessee 38132
Indenture Trustee, Pass Through Trustee & Subordination Agent
First Security Bank, National Association
79 South Main Street
Salt Lake City, Utah 84111
Underwriters
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
First Chicago Capital Markets, Inc.
Corporate Securities
One First National Plaza
Chicago, Illinois 60670
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
J.P. Morgan & Co.
60 Wall Street
New York, New York 10260
EXHIBIT A(6)(b)
[Letterhead of Milbank, Tweed, Hadley & McCloy]
[Certificate Closing Date]
To Each of the Parties named on Schedule A Hereto
Re: Federal Express Corporation 1997-1
Enhanced Pass Through Certificates
Ladies and Gentlemen:
We have acted as special New York counsel to Kredietbank
N.V., New York Branch (herein called the "Liquidity Provider") in
connection with the transactions contemplated by (i) the Irrevocable
Revolving Credit Agreement Class A Certificates, dated as of May 1, 1997
(the "Class A Liquidity Agreement"), between the Liquidity Provider and
First Security Bank, National Association, as Subordination Agent under the
Intercreditor Agreement, as defined below, as agent and trustee for the
Federal Express Corporation 1997-1-A Pass Through Trust, (ii) the
Irrevocable Revolving Credit Agreement Class B Certificates, dated as of
May 1, 1997 (the "Class B Liquidity Agreement" and, together with the Class
A Liquidity Agreement, the "Liquidity Agreements"), between the Liquidity
Provider and First Security Bank, National Association, as Subordination
Agent under the Intercreditor Agreement, as defined below, as agent and
trustee for the Federal Express Corporation 1997-1-B Pass Through Trust,
and (iii) the Intercreditor Agreement, dated as of May 1, 1997 (the
"Intercreditor Agreement" and, together with the Liquidity Agreements, the
"Liquidity Documents"), among the Liquidity Provider and First Security
Bank, National Association, as Pass Through Trustee and as Subordination
Agent. Capitalized terms used herein but not otherwise defined herein
shall have the meanings provided in the Liquidity Documents.
In rendering the opinion expressed below, we have examined
the Liquidity Documents, the opinion dated the date hereof of Wilfred
Kupers, Esq., manager of the Legal Department of Kredietbank N.V., and such
other documents as we have deemed necessary.
In our examination, we have assumed the authenticity of all
documents submitted to us as originals and the conformity with authentic
original documents of all documents submitted to us as copies. When relevant
facts were not independently established, we have relied upon representations
made in or pursuant to the Liquidity Documents.
In rendering the opinion expressed below, we have assumed, with
respect to each Liquidity Document, that:
(i) it has been duly authorized by, has been duly executed and
delivered by, and (except to the extent set forth in the
opinion below as to the Liquidity Provider) constitutes
legal, valid, binding and enforceable obligations of all of
the parties thereto;
(ii) all signatories thereto have been duly authorized; and
(iii) all of the parties thereto are duly organized and validly
existing and have the power and authority (corporate,
partnership, trust or other) to execute, deliver and perform
thereunder.
Based upon and subject to the foregoing and subject also to
the comments and qualifications set forth below, and having considered such
questions of law as we have deemed necessary as a basis for the opinion
expressed below, we are of the opinion that each Liquidity Document
constitutes the legal, valid and binding obligation of the Liquidity
Provider, enforceable against the Liquidity Provider in accordance with its
terms, except as may be limited by bankruptcy, insolvency, reorganization,
moratorium, fraudulent conveyance or transfer or other similar laws
relating to or affecting the rights of creditors generally and except as
the enforceability of such Liquidity Document is subject to the application
of general principles of equity (regardless of whether considered in a
proceeding in equity or at law), including, without limitation, (a) the
possible unavailability of specific performance, injunctive relief or any
other equitable remedy and (b) concepts of materiality, reasonableness,
good faith and fair dealing.
The foregoing opinion is subject to the following comments and
qualifications:
(A) The enforceability of provisions in the Liquidity
Documents to the effect that terms may not be waived or modified
except in writing may be limited under certain circumstances.
(B) We express no opinion as to (i) the effect of the laws of
any jurisdiction in which the Liquidity Provider is located (other
than New York) that limit the interest, fees or other charges the
Liquidity Provider may impose for the loan or use of money or other
credit, (ii) Section 7.11(a)(i) of each Liquidity Agreement and
Section 10.11(a)(i) of the Intercreditor Agreement, insofar as such
Sections relate to the subject matter jurisdiction of a Federal court
sitting in New York, New York to adjudicate any controversy related
to the Liquidity Documents, (iii) the waiver of inconvenient forum
set forth in Section 7.11(a)(ii) of each Liquidity Agreement and
Section 10.11(a)(ii) of the Intercreditor Agreement with respect to
proceedings in a Federal court sitting in New York, New York and a
State court of the State of New York and (iv) the waiver of immunity
set forth in Section 10.11(c) of the Intercreditor Agreement with
respect to proceedings in a Federal court sitting in New York, New
York and a State court of the State of New York.
The foregoing opinion is limited to matters involving the
Federal laws of the United States of America and the law of the State of
New York, and we do not express any opinion as to the laws of any other
jurisdiction. In particular, we do not express any opinion as to the laws
of Belgium and, to the extent such laws may be relevant to the opinion
expressed herein, we have, with your permission, relied upon the
aforementioned opinion of Wilfred Kupers, Esq., manager of the Legal
Department of Kredietbank N.V., without independently considering the
matters covered thereby, and our opinion is subject to all limitations,
exceptions and qualifications contained therein as if set forth herein in
full.
At the request of the Liquidity Provider, this opinion letter is
provided to you by us in our capacity as special New York counsel to the
Liquidity Provider, and this opinion letter may not be relied upon by any
Person for any purpose other than in connection with the transactions
contemplated by the Liquidity Documents without, in each instance, our prior
written consent.
Very truly yours,
SCHEDULE A
Lessee
Federal Express Corporation
2007 Corporate Avenue
Memphis, Tennessee 38132
Indenture Trustee, Pass Through Trustee & Subordination Agent
First Security Bank, National Association
79 South Main Street
Salt Lake City, Utah 84111
Underwriters
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
First Chicago Capital Markets, Inc.
Corporate Securities
One First National Plaza
Chicago, Illinois 60670
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
J.P. Morgan & Co.
60 Wall Street
New York, New York 10260
Liquidity Provider
Kredietbank N.V., New York Branch
125 West 55th Street
New York, New York 10019
EXHIBIT A(7)
[Letter of General Electric Company]
[Delivery Date]
To Each of the Parties named on Schedule A Hereto
Re: Federal Express Corporation Trust No. N673FE
Reference is made to (i) that certain Participation Agreement
(Federal Express Corporation Trust No. N673FE), dated as of May 1, 1997
(the "Participation Agreement") by and among Federal Express Corporation,
as Lessee ("Fed Ex"), PMCC Leasing Corporation, as Owner Participant, State
Street Bank and Trust Company of Connecticut, National Association ("SSB")
(not in its individual capacity, except as otherwise expressly set forth
therein, but solely as Owner Trustee), First Security Bank, National
Association ("FSB") (not in its individual capacity, except as otherwise
expressly set forth therein, but solely as Indenture Trustee, Pass Through
Trustee and Subordination Agent); (ii) that certain Purchase Agreement
Assignment (Federal Express Corporation Trust No. N673FE), dated as of May
1, 1997 (the "Purchase Agreement Assignment") between Fed Ex, as Lessee and
SSB, as Lessor; (iii) that certain Lease Agreement (Federal Express
Corporation Trust No. N673FE), dated as of May 1, 1997 (the "Lease")
between SSB (not in its individual capacity, but solely as Owner Trustee),
as Lessor and Fed Ex, as Lessee; (iv) that certain Trust Indenture and
Security Agreement (Federal Express Corporation Trust No. N673FE), dated
as of May 1, 1997 (the "Trust Indenture") between SSB (not in its
individual capacity), as Owner Trustee and FSB (not in its individual
capacity), as Indenture Trustee; and (v) that certain Trust Agreement
(Federal Express Corporation Trust No. N673FE), dated as of May 1, 1997
(the "Trust Agreement") between SSB (not in its individual capacity), as
Owner Trustee and PMCC Leasing Corporation, as Trustor.
I am an attorney employed by General Electric Company, a New York
corporation (the "Engine Manufacturer") and as such have acted as counsel
for the Engine Manufacturer in connection with the execution and delivery
by the Engine Manufacturer of the Consent (the "Consent"), and the Engine
Warranty Assignment (Federal Express Corporation Trust No. N673FE) (the
"Engine Warranty Assignment"), each attached to the Participation Agreement
as Exhibit F and dated as of May 1, 1997. The Consent and the Engine
Warranty Assignment covers two GE CF6-80C2-A5F series engines bearing
Engine Manufacturer's serial numbers ___-___ and ___-___, respectively. In
this connection, I have, or an attorney under my supervision has, reviewed
such documents as I have deemed necessary for the purpose of this opinion,
including, but without limiting the generality of the foregoing, the
General Terms Agreement No. 6-9034, dated as of July 3, 1991 between the
Engine Manufacturer and Fed Ex (the "General Terms Agreement"), the Engine
Product Support Plan forming a part thereof (the "Engine Product Support
Plan"), the Participation Agreement, the Purchase Agreement Assignment, the
Lease, the Trust Indenture and the Trust Agreement.
In making such examinations, I have relied upon the accuracy of
original, certified, conformed, photocopied or telecopied copies of such
records, agreements, certificates and other documents as I have deemed
necessary or appropriate to enable me to render the opinions expressed
herein. In all such examinations, I have assumed the genuineness of
signatures on original documents and the conformity to such original
documents of all copies submitted to me as certified, conformed,
photocopied or telecopied copies, and as to certificates and telegraphic
and telephonic confirmations given by public officials, I have assumed the
same to have been properly given and to be accurate. As to various
questions of fact material to such opinions, I have relied, when such
relevant facts were not independently established by me, solely upon the
accuracy of the statements, representations and warranties made in the
Participation Agreement, the Purchase Agreement Assignment, the Lease, the
Trust Indenture and the Trust Agreement.
With your consent, and for the purposes of this opinion, I have
assumed (other than with respect to the Engine Manufacturer), the accuracy of
the following matters, but I have not made any independent investigation or
inquiry with respect thereto and I render no opinion on such matters:
(a) each of the Participation Agreement, the Purchase
Agreement Assignment, the Lease, the Trust Indenture, and the Trust
Agreement have been duly and validly authorized, executed and
delivered by all parties thereto and constitutes the legal, valid and
binding obligations of each of such parties in accordance with the
respective terms thereof; and
(b) the respective parties to the Participation Agreement,
the Purchase Agreement Assignment, the Lease, the Trust Indenture,
and the Trust Agreement have obtained, and there are in full force
and effect, any and all federal, state, local or foreign
governmental agencies and authorities in connection with the
transactions contemplated thereby, to the extent necessary for the
legality, validity and binding effect or enforceability of the
Consent and the Engine Warranty Assignment.
Based upon the foregoing, and subject to the specific assumptions,
qualifications and reliances herein set forth, and on the basis of my
consideration of such facts and law as I have deemed necessary for purposes of
this letter, it is my opinion that:
(1) The Engine Manufacturer has the full corporate power,
authority and the legal right to enter into and perform its
obligations under the General Terms Agreement, the Consent and the
Engine Warranty Assignment. The execution, delivery and
performance by the Engine Manufacturer of each of the General
Terms Agreement, the Consent and the Engine Warranty Assignment
was duly authorized by all necessary corporate action on the part
of the Engine Manufacturer.
(2) Each of the General Terms Agreement, the Consent and
Engine Warranty Assignment has been duly authorized, executed and
delivered by and constitutes a legal, valid and binding obligation of
the Engine Manufacturer, enforceable against the Engine Manufacturer
in accordance with the respective terms thereof, except as the
enforceability thereof may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting the
rights of creditors generally and by general equity principles.
(3) The Engine Product Support Plan insofar as it relates to
the Engine Warranties (as such term is defined in the Engine Warranty
Assignment), constitutes a legal, valid and binding obligation of the
Engine Manufacturer, enforceable against the Engine Manufacturer in
accordance with the terms thereof, except as the enforceability
thereof may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the rights of
creditors generally and by general equity principles.
The foregoing opinions are limited to the laws of the State
of New York and the federal laws of the United States of America, but no
opinion is expressed as to matters governed by the Transportation Code, or
by any other law, statute, rule or regulation of the United States relating
to the acquisition, ownership, registration, use, operation, maintenance,
repair, replacement or sale of aircraft. Further, no opinion is expressed
as to title to any engines or other property.
This opinion is furnished by me at your request for your
sole benefit and no other person or entity shall be entitled to rely on
this opinion without our express written consent. My opinion is limited to
the matters stated herein and no opinion is implied or may be inferred
beyond the matters expressly stated herein.
Very truly yours,
David L. Lloyd, Jr.
SCHEDULE A
Lessee
Federal Express Corporation
2007 Corporate Avenue
Memphis, Tennessee 38132
Owner Trustee
State Street Bank and Trust Company
of Connecticut, National Association
Two International Place
4th Floor
Boston, Massachusetts 02110
Indenture Trustee, Pass Through Trustee & Subordination Agent
First Security Bank, National Association
79 South Main Street
Salt Lake City, Utah 84111
Owner Participant
PMCC Leasing Corporation
200 First Stamford Place
Stamford, Connecticut 06902
Underwriters
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
First Chicago Capital Markets, Inc.
Corporate Securities
One First National Plaza
Chicago, Illinois 60670
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
J.P. Morgan & Co.
60 Wall Street
New York, New York 10260
Liquidity Provider
Kredietbank N.V., New York Branch
125 West 55th Street
New York, New York 10019
EXHIBIT A(8)
[Letterhead of Clifford Chance]
[Delivery Date]
To The Opinion Addressees referred to in Schedule A hereof
Re: Federal Express Corporation Trust No. N673FE
Ladies and Gentlemen:
We are special French counsel for Airbus Industrie G.I.E.
("Airbus") and AVSA S.A.R.L. ("AVSA") and you have asked for our opinion
in connection with certain transactions contemplated in the Participation
Agreement (Federal Express Corporation Trust No. N673FE), dated as of May
1, 1997 (the "Participation Agreement") among Federal Express Corporation,
as Lessee ("Federal Express"), PMCC Leasing Corporation, as Owner
Participant ("Owner Participant"), State Street Bank and Trust Company of
Connecticut, National Association, not in its individual capacity, except
as otherwise stated, but solely as Owner Trustee ("Owner Trustee"), First
Security Bank, National Association, not in its individual capacity, except
as otherwise stated, but solely as Indenture Trustee ("Indenture Trustee"),
Pass Through Trustee and Subordination Agent, and relating to the Aircraft
to be operated by Federal Express.
This opinion is being delivered pursuant to Section 4.02(m)(x)
of the Participation Agreement.
Capitalized terms used in this opinion and not otherwise
defined shall have the meaning assigned thereto in the Participation
Agreement.
We have examined:
(i) a copy of an Airbus A300-600R Freighter Purchase Agreement
dated as of July 3, 1991 and made between AVSA and Federal
Express with an executed Consent and Guaranty of Airbus of
same date attached thereto, sent to us by facsimile by
AINA Holdings Inc. ("AINA") on April 27, 1994;
(ii) a copy sent to us by facsimile by Davis Polk & Wardwell on
_________________ of an executed Purchase Agreement
Assignment dated as of May 1, 1997 (the "Purchase
Agreement Assignment") made between Federal Express and
the Owner Trustee;
(iii) a copy sent to us by facsimile by AVSA on _________________
of an executed but undated Airbus Industrie Consent and
Agreement to the Purchase Agreement Assignment;
(iv) a copy sent to us by facsimile by AVSA on _________________
of an executed but undated AVSA Consent and Agreement to
the Purchase Agreement Assignment;
(v) a copy sent to us by facsimile by AVSA on _________________
of an executed but undated Warranty Bill of Sale, relating
to the Aircraft and transferring title therein from AVSA
to the Owner Trustee ("AVSA Warranty Bill of Sale");
(vi) a copy sent to us by facsimile by AVSA on _________________
of an executed but undated Airbus Industrie G.I.E.
Warranty, in favour of the Participants (the "Airbus
Warranty") warranting AVSA's Warranty Bill of Sale;
(vii) a copy sent to us by facsimile by AVSA on _________________
of an undated FAA Bill of Sale executed by AVSA in favour
of the Owner Trustee;
(viii) a copy sent to us by facsimile by AVSA on May 3, 1995 of an
executed power of attorney dated September 1, 1994 appointing
Messrs. John Leahy and Michel Dechelotte, acting singly, as
attorneys-in-fact of Mr. Jean Pierson, Managing Director
("Administrateur Gerant") of Airbus;
(ix) a copy sent to us by facsimile by AVSA on September 15, 1995
of an executed power of attorney dated August 16, 1995
appointing J.C Mauries as attorney-in-fact of Mr. Jean
Pierson, Managing Director ("Administrateur Gerant") of
Airbus;
(x) a copy sent to us by facsimile by AVSA on September 15, 1995
of an executed power of attorney dated August 16, 1995
appointing Xavier de Rouville as attorney-in-fact of Mr.
Jean Pierson, Managing Director ("Administrateur Gerant")
of Airbus;
(xi) a copy sent to us by courier by AVSA on September 15, 1995 of
an executed power of attorney dated August 1, 1995
appointing Ms. Michele Lascaux and Mr. Etienne O. de
Coninck, acting singly, as attorneys-in-fact of Mr.
Christophe Mourey, Chief Executive Officer ("Gerant") of
AVSA; and
(xii) a copy sent to us by courier by AVSA on September 15, 1995
of an executed power of attorney dated August 1, 1995
appointing Ms. Marie-Pierre Merle-Beral and Michele
Lascaux, Messrs. Jacques Debeaulieu, Sylvain Lebeuf,
Philippe Martin, Rainer von Borstel and Alain Rochet,
acting singly, as attorneys-in-fact of Mr. Christophe
Mourey, Chief Executive Officer ("Gerant") of AVSA.
(the documents referred to in paragraphs (i) to (xii) being referred to herein
as the "Documents").
Based on the foregoing, and such other documents, records
and other instruments as we have deemed necessary or appropriate for the
purpose of this opinion, and assuming the Documents to have been duly
executed by the parties thereto (other than Airbus and AVSA), the
genuineness of all signatures and the completeness and conformity to the
originals of all documents supplied to us as copies or as facsimiles, we
are of the opinion that, subject to the qualifications set out below:
1. Airbus is a groupement d'interet economique duly organized and
existing under the laws of the French Republic, and has the
power and authority to carry on its business as now conducted.
The present members of Airbus are (i) Aerospatiale, Societe
Nationale Industrielle, (ii) Daimler-Benz Aerospace Airbus
GmbH, (iii) British Aerospace (Operations) Ltd. and (iv)
Construcciones Aeronauticas S.A., and each of such corporations
is, without the need to proceed against any collateral security
for the indebtedness of Airbus or to take any other legal
action or process (except for service on Airbus by huissier of
notice to perform and subsequent failure by Airbus to do so),
jointly and severally liable with the other members for the
debts of Airbus arising out of obligations contracted by Airbus
while such corporation is a member of Airbus.
2. AVSA is a societe a responsabilite limitee duly established
and existing under the laws of the French Republic and has
the power and authority to carry on its business as now
conducted.
3. Each of Airbus and AVSA has full power and authority to enter
into and to execute, deliver and perform its obligations under
those of the Documents to which it is a party; such obligations
are legal, valid and binding upon them respectively, are
enforceable in accordance with their respective terms and rank
pari passu with the other unsecured obligations of Airbus or
AVSA, as the case may be.
4. All actions, authorizations, approvals, consents, conditions
and things required at law to be taken, fulfilled and done
to authorize the execution, delivery and performance by
Airbus and AVSA of those of the Documents to which they
respectively are party have been taken, obtained, fulfilled
and done; and no consents under any exchange control, laws,
rules or regulations of the French Republic are necessary in
connection therewith.
5. Neither the execution and delivery and performance of the
Documents to which Airbus and AVSA respectively are a party,
nor the consummation of the transactions contemplated
thereby, contravenes or violates any law, governmental rule
or regulation applicable to or binding on Airbus or AVSA.
6. The choice of the laws of the State of New York to govern the
Documents (which are expressed to be so governed) is valid
under the laws of the French Republic, and a French court
would uphold such choice of law in any suit on the Documents
brought in a French court.
7. Under the laws of the French Republic, Airbus and AVSA are
subject to private commercial law and to suit, and neither
Airbus nor AVSA, nor their respective properties have any
immunity from the jurisdiction of any court or any legal
process (whether through service of notice, attachment prior to
notice, attachment prior to judgment, attachment in aid of
execution, execution or otherwise), except that:
(a) to the extent that Airbus or AVSA occupies or possesses
any property by virtue of any license or grant from the
French State, such property and the title of Airbus or
AVSA thereto may be immune from suit or execution on the
grounds of sovereignty, and
(b) suit and execution against Airbus and AVSA or their
respective property may be affected by action taken by
the French public authorities in the interests of
national defence or on the occurrence of exceptional
circumstances of paramount importance to the national
interest of France, as such concept is understood
under the Constitution, laws and regulations of
France.
8. No French value added tax is due upon the transfer of title of
the Aircraft from AVSA to State Street Bank and Trust
Company of Connecticut, National Association as Owner
Trustee.
9. In connection with the obligations of Airbus and AVSA under the
Documents, this opinion must be read subject to the following
qualifications and observations as to French law:
(a) the remedy of specific performance may not be available
in a French court;
(b) the enforcement against Airbus of any of the Documents to
which it is a party may be limited by applicable
bankruptcy, insolvency, arrangement, moratorium or
similar laws relating to or affecting the enforcement of
creditors' rights generally, as such laws are applied to
Airbus. The enforcement against AVSA of any of the
Documents to which it is a party may be limited by such
laws, as such laws are applied to AVSA. The enforcement
against any member of Airbus of any obligation of Airbus
contained in the Documents may be limited by such laws,
as such laws are applied to such member;
(c) in respect of payment obligations, a French court has
power under Article 1244-1 of the French Civil Code to
grant time to a debtor (not in excess of two years),
taking into account the position of the debtor and the
needs of the creditor;
(d) in order to ensure the validity as against third parties
of the assignment made in the Purchase Agreement
Assignment, it is necessary that notice of such
assignment be served on Airbus and AVSA by "huissier" in
accordance with the provisions of Article 1690 of the
French Civil Code;
(e) in the event of any proceedings being brought in a
French court in respect of a monetary obligation
expressed to be payable in a currency other than
French Francs, a French court would probably give
judgment expressed as an order to pay, not such
currency, but its French Franc equivalent at the time
of payment or enforcement of judgment. With respect
to a bankruptcy, insolvency, liquidation, moratorium,
reorganization, reconstruction or similar proceedings,
French law may require that all claims or debts be
converted into French Francs at an exchange rate
determined by the court at a date related thereto,
such as the date of commencement of a winding-up;
(f) a determination or certificate as to any matter provided
for in the Documents might be held by a French court not
to be final, conclusive or binding, if such determination
or certificate could be shown to have an unreasonable,
incorrect or arbitrary basis or not to have been given or
made in good faith;
(g) claims may become barred by effluxion of time or may be
or become subject to defence of set-off or
counterclaim;
(h) provisions in any Document providing that it or any
other Documents may be amended or varied or any
provision thereof waived only by an instrument in
writing may not be effective;
(i) a French court may stay proceedings if concurrent
proceedings are being brought elsewhere;
(j) we express no opinion as to whether any provision in the
Documents conferring a right of set-off or similar
right would be effective against a liquidator or a
creditor; and
(k) our opinion as to the enforceability of the Documents
relates only to their enforceability in France in
circumstances where the competent French court has and
accepts jurisdiction. The term "enforceability" refers
to the legal character of the obligations assumed by the
parties under the documents, i.e., that they are of a
character which French law enforces or recognizes. It
does not mean that the Documents will be enforced in all
circumstances or in foreign jurisdictions or by or
against third parties or that any particular remedy will
be available.
(l) Article 899 of the French Tax Code provides that
agreements evidencing an undertaking to pay a sum of
money are subject to stamp tax ("droit de timbre") of a
nominal amount if made in the French Republic, if made in
a foreign country, such agreements are subject to a stamp
tax of a nominal amount before certain use thereof can be
made in the French Republic (Article 897 of the French
Tax Code). However non-payment of such stamp tax does
not affect the legality, validity or enforceability of
the agreements.
In rendering the foregoing opinions, we have assumed that the
Documents (expressed to be governed by New York law) constitute the legal,
valid and binding obligations of the parties under New York law.
We are qualified as French Avocats.
No opinion is expressed herein as to laws other than the
laws of the French Republic as of the date hereof. This opinion is for
your use and that of no one else, and is limited to (i) the matters
specifically mentioned herein, and (ii) the purpose set out above.
Very truly yours,
Clifford Chance
SCHEDULE A
Lessee
Federal Express Corporation
2007 Corporate Avenue
Memphis, Tennessee 38132
Owner Trustee
State Street Bank and Trust Company
of Connecticut, National Association
Two International Place
4th Floor
Boston, Massachusetts 02110
Indenture Trustee, Pass Through Trustee & Subordination Agent
First Security Bank, National Association
79 South Main Street
Salt Lake City, Utah 84111
Owner Participant
PMCC Leasing Corporation
200 First Stamford Place
Stamford, Connecticut 06902
Underwriters
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
First Chicago Capital Markets, Inc.
Corporate Securities
One First National Plaza
Chicago, Illinois 60670
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
J.P. Morgan & Co.
60 Wall Street
New York, New York 10260
Liquidity Provider
Kredietbank N.V., New York Branch
125 West 55th Street
New York, New York 10019
EXHIBIT A(9)
[Letterhead of Daugherty, Fowler & Peregrin]
[Delivery Date]
To the Parties Named on Schedule A attached hereto
Re: Federal Express Corporation Trust No. N673FE
Ladies and Gentlemen:
This opinion is furnished to you pursuant to Section
4.02(d)(iii) of the Participation Agreement (Federal Express Corporation
Trust No. N673FE), dated as of May 1, 1997 (the "Participation Agreement")
among Federal Express Corporation, as Lessee (the "Lessee"), PMCC Leasing
Corporation, as Owner Participant (the "Owner Participant"), State Street
Bank and Trust Company of Connecticut, National Association, not in its
individual capacity, except as otherwise stated, but solely as Owner
Trustee ("Owner Trustee"), First Security Bank, National Association, not
in its individual capacity, except as otherwise stated, but solely as
Indenture Trustee ("Indenture Trustee"), Pass Through Trustee and
Subordination Agent, with respect to that portion of Subtitle VII of Title
49 of the United States Code relative to the recordation of instruments and
the registration of aircraft thereunder.
The capitalized terms herein shall, unless otherwise
defined, have the same meanings given them in the Participation Agreement
or in Annex I attached hereto.
We have examined and filed on this date with the Federal
Aviation Administration (the "FAA") the following described instruments at
the respective times listed below:
(a) AC Form 8050-2 Aircraft Bill of Sale dated
_____________ (the "FAA Bill of Sale") from AVSA, as
seller, conveying title to the Airframe to the Owner
Trustee, which FAA Bill of Sale was filed at ____
_.m., C._.T.;
(b) AC Form 8050-1 Aircraft Registration Application dated
_____________ (the "Aircraft Registration
Application") by the Owner Trustee, as applicant,
covering the Airframe, which Aircraft Registration
Application was filed at ____ _.m., C._.T.;
(c) Affidavit of the Owner Trustee dated _____________ (the
"Owner Trustee Affidavit") pursuant to Section
47.7(c)(2)(ii) of Part 47 of the Federal Aviation
Regulations together with Affidavit of the Owner
Participant dated _____________ (the "Owner
Participant Affidavit") attached thereto, which Owner
Trustee Affidavit with the Owner Participant Affidavit
attached was filed at ____ _.m., C._.T.;
(d) executed counterpart of Trust Agreement (Federal Express
Corporation Trust No. N673FE) dated as of May 1, 1997
(the "Trust Agreement") between the Owner Participant
and the Owner Trustee, which Trust Agreement was filed
at ____ _.m., C._.T.;
(e) executed counterpart of Trust Indenture and Security
Agreement (Federal Express Corporation Trust No.
N673FE) dated as of May 1, 1997 (the "Trust
Indenture") between the Owner Trustee and the
Indenture Trustee, with executed counterpart of
Indenture and Security Agreement Supplement No. 1
(Federal Express Corporation Trust No. N673FE) dated
_____________ (the "Trust Indenture Supplement") by
the Owner Trustee, covering the Aircraft, attached
thereto, which Trust Indenture with the Trust
Indenture Supplement attached was filed at ____ _.m.,
C._.T.; and,
(f) executed counterpart of Lease Agreement (Federal Express
Corporation Trust No. N673FE) dated as of May 1, 1997
(the "Lease") between the Owner Trustee, as lessor,
and the Lessee, with executed counterparts of the
following attached thereto: (i) Lease Supplement No.
1 (Federal Express Corporation Trust No. N673FE)
dated _____________ (the "Lease Supplement") between
the Owner Trustee, as lessor, and the Lessee, covering
the Aircraft; (ii) the Trust Indenture; and (iii) the
Trust Indenture Supplement, which Lease with the
foregoing attachments (collectively, the "Lease
Attachments") attached was filed at ____ _.m., C._.T.
The Confidential Omissions were intentionally omitted from
the FAA filing counterparts of the Lease and the Trust Indenture as
containing confidential financial information.
Based upon our examination of the above described
instruments and of such records of the FAA as we deemed necessary to render
this opinion, it is our opinion that:
1. the FAA Bill of Sale, the Trust Indenture with the Trust
Indenture Supplement attached and the Lease with the
Lease Attachments attached are in due form for
recordation by and have been duly filed for
recordation with the FAA pursuant to and in accordance
with the provisions of 49 U.S.C. Section 44107;
2. the Aircraft Registration Application, the Owner Trustee
Affidavit with the Owner Participant Affidavit
attached and the Trust Agreement are in due form for
filing and have been duly filed with the FAA pursuant
to and in accordance with the provisions of 49 U.S.C.
Section 44103(a) and Section 47.7(c) of the Federal
Aviation Regulations;
3. the Airframe is eligible for registration under 49 U.S.C.
Section 44102 in the name of the Owner Trustee and the
filing with the FAA of the FAA Bill of Sale, the
Aircraft Registration Application, the Owner Trustee
Affidavit with the Owner Participant Affidavit
attached and the Trust Agreement will cause the FAA to
register the Airframe, in due course, in the name of
the Owner Trustee and to issue to the Owner Trustee an
AC Form 8050-3 Certificate of Aircraft Registration
for the Airframe, and the Airframe will be duly
registered pursuant to and in accordance with the
provisions of 49 U.S.C. Section 44103(a);
4. the Owner Trustee has valid legal title to the Airframe
and the Aircraft is free and clear of all Liens,
except (i) the security interest created by the Trust
Indenture, as supplemented by the Trust Indenture
Supplement, and (ii) the rights of the parties under
the Lease, as supplemented by the Lease Supplement;
5. the rights of the Owner Trustee and the Lessee under the
Lease, as supplemented by the Lease Supplement, with
respect to the Aircraft, are perfected;
6. the Trust Indenture, as supplemented by the Trust
Indenture Supplement, constitutes a duly perfected
first priority security interest in the Aircraft and a
duly perfected first assignment of all the right,
title and interest of the Owner Trustee in, to and
under the Lease and the Lease Supplement (insofar as
such assignment affects an interest covered by the
recording system established by the FAA pursuant to 49
U.S.C. Section 44107), and no other registration of
the Airframe or filings other than filings with the
FAA (which have been duly effected) are necessary in
order to perfect in any applicable jurisdiction in the
United States (A) the Owner Trustee's title to the
Airframe or (B) such security interest and assignment
(insofar as such assignment affects an interest
covered by the recording system established by the FAA
pursuant to 49 U.S.C. Section 44107), it being
understood that no opinion is herein expressed as to
the validity, priority or enforceability of such
security interest and assignment under local law or as
to the recognition of the perfection of such security
interest and assignment as against third parties in
any legal proceeding outside the United States;
7. no authorization, approval, consent, license or order of,
or registration with, or the giving of notice to, the
FAA is required for the valid authorization, delivery
and performance of the Lease, as supplemented by the
Lease Supplement, the Trust Indenture, as supplemented
by the Trust Indenture Supplement, or the Trust
Agreement except for such filings as are referred to
above; and,
8. neither the execution and delivery by the Owner
Participant of the Participation Agreement or the
Trust Agreement, nor other consummation of the
transactions contemplated thereby by the Owner
Participant, requires the consent or approval of, or
the giving of notice to, or the registration of, or
the taking of any other action in respect of the FAA,
except (x) the registration of the Airframe, including
the submission of the Aircraft Registration
Application, the Owner Trustee Affidavit, the Owner
Participant Affidavit and the Trust Agreement to the
FAA and (y) the filings for recordation specified
elsewhere in this opinion.
No opinion is expressed as to the Airframe during any period
or periods of time during which it has not been subject to United States
registration.
No opinion is expressed as to laws other than Federal laws
of the United States. In rendering this opinion, we were subject to the
accuracy of the FAA, its employees and agents, in the filing, indexing and
recording of instruments filed with the FAA and in the search for
encumbrance cross-reference index cards for the Engines. Further, in
rendering this opinion we are assuming the validity and enforceability of
the above described instruments under local law. Since our examination was
limited to records maintained by the FAA, our opinion does not cover liens
which are perfected without the filing of notice thereof with the FAA, such
as federal tax liens, liens arising under Section 1368(a) of Title 29 of
the United States Code, possessory artisan's liens, or matters of which the
parties had actual notice. In rendering this opinion we are assuming that
there are no documents with respect to the Aircraft which have been filed
for recording under the recording system of the FAA but have not yet been
listed in the available records of such system as having been so filed.
In rendering this opinion we have relied upon the opinion of
the Assistant Chief Counsel of the Aeronautical Center dated _____________,
a copy of which is attached hereto.
Very truly yours,
Robert M. Peregrin
For the Firm
Annex I
Certain Definitions
Airframe, Engines and Aircraft
One (1) Airbus Industrie A300F4-605R aircraft bearing
manufacturer's serial number 777 and U.S. Registration No. N673FE (the
"Airframe") and two (2) General Electric CF6-80C2-A5F aircraft engines
bearing manufacturer's serial numbers ___-___ and ___-___ (the "Engines")
(the Airframe and the Engines are referred to collectively as the
"Aircraft").
Confidential Omissions
The Lease was filed with the FAA, with (i) the Basic Rent
(Schedule II), (ii) the Stipulated Loss Values (Schedule III), (iii) the
Termination Values (Schedule IV) and (iv) the Purchase Option Schedule
(Schedule V) omitted from the FAA filing counterpart thereof as containing
confidential financial information; and (v) the purchase price under Section
4.02(a)(F) set forth in Ancillary Agreement II, which was not attached to the
FAA filing counterpart of the Lease or otherwise filed with the FAA for
recordation.
SCHEDULE A
Lessee
Federal Express Corporation
2007 Corporate Avenue
Memphis, Tennessee 38132
Owner Trustee
State Street Bank and Trust Company
of Connecticut, National Association
Two International Place
4th Floor
Boston, Massachusetts 02110
Indenture Trustee, Pass Through Trustee & Subordination Agent
First Security Bank, National Association
79 South Main Street
Salt Lake City, Utah 84111
Owner Participant
PMCC Leasing Corporation
200 First Stamford Place
Stamford, Connecticut 06902
Underwriters
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
First Chicago Capital Markets, Inc.
Corporate Securities
One First National Plaza
Chicago, Illinois 60670
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
J.P. Morgan & Co.
60 Wall Street
New York, New York 10260
Liquidity Provider
Kredietbank N.V., New York Branch
125 West 55th Street
New York, New York 10019
EXHIBIT B
[FORM OF LEASE AGREEMENT]
[See Exhibit 4.e]
EXHIBIT C
[FORM OF INDENTURE]
[See Exhibit 4.b.1]
EXHIBIT D
[FORM OF TRUST AGREEMENT]
[See Exhibit 4.d]
EXHIBIT E
[FORM OF PURCHASE AGREEMENT ASSIGNMENT, AIRBUS CONSENT AND
AVSA CONSENT]
[See Exhibit B to Lease Agreement under Exhibit 4.e]
EXHIBIT F
[FORM OF ENGINE WARRANTY ASSIGNMENT AND ENGINE CONSENT]
[See Exhibit C to Lease Agreement under Exhibit 4.e]
EXHIBIT G-1
FORM OF ASSIGNMENT AND ASSUMPTION AGREEMENT
BENEFICIAL INTEREST TRANSFER AGREEMENT (this "Document"),
dated as of _______ __, ____, between ______________, a ______________
corporation ("Transferor") and ______________, a ______________ corporation
("Transferee").
W I T N E S S E T H :
WHEREAS, the parties hereto desire to effect (a) the
transfer by Transferor to Transferee of all of the rights, title and interest
of Transferor in and to its interest (the "Beneficial Interest") under the
Trust Agreement (Federal Express Corporation Trust No. N673FE), dated as of
May 1, 1997 (as heretofore amended, the "Trust Agreement"), between Transferor
and State Street Bank and Trust Company of Connecticut, National Association,
and the Lessor's Estate created thereunder, and all of Transferor's rights and
obligations under the Participation Agreement (Federal Express Corporation
Trust No. N673FE), dated as of May 1, 1997 (the "Participation Agreement"),
among Federal Express Corporation, as Lessee, State Street Bank and Trust
Company of Connecticut, National Association, not in its individual capacity,
except as otherwise stated therein, but solely as Owner Trustee, PMCC Leasing
Corporation, as Owner Participant, First Security Bank, National Association,
not in its individual capacity, except as otherwise stated therein, but solely
as Indenture Trustee, First Security Bank, National Association, not in its
individual capacity, except as otherwise stated therein, but solely as Pass
Through Trustee and First Security Bank, National Association, as
Subordination Agent, and under the other Operative Agreements and (b) the
acceptance by Transferee of such transfer and the assumption by Transferee of
such obligations of Transferor thereunder; and
WHEREAS, Section 7.03(d) of the Participation Agreement
permits such transfer and assumption upon satisfaction of certain conditions
heretofore or concurrently herewith being observed;
NOW, THEREFORE, in consideration of the premises and of
the mutual covenants and agreements herein contained, the parties hereto agree
as follows:
1. Definitions. Capitalized terms used herein without
definition shall have the respective meanings ascribed thereto in the
Participation Agreement.
2. Transfer. Transferor does hereby sell, convey,
assign, transfer and set over, unto Transferee, as of the Effective Time (as
defined below), all of Transferor's present and future right, title and
interest in and to (a) all of the Beneficial Interest and (b) all of the Owner
Participant's rights and obligations under the Participation Agreement, the
Tax Indemnity Agreement, the Trust Agreement and the other Operative
Agreements and any proceeds therefrom, together with all other documents and
instruments evidencing any of such right, title and interest, except such
rights of Transferor as have arisen or accrued to Transferor prior to the
Effective Time (including without limitation, the right to receive any amounts
due or accrued to Transferor under the Operative Agreements as of a time prior
to the Effective Time and the right to receive any indemnity payment pursuant
to the Participation Agreement or the Tax Indemnity Agreement, with respect to
events occurring prior to such time); all of the foregoing that is being
transferred under this paragraph 2, the "Transferred Interest".
3. Assumption. Transferee hereby accepts the transfer
of the Transferred Interest and, for the benefit of Transferor and the other
parties to the Participation Agreement, assumes and undertakes and agrees to
perform and discharge all of the duties and obligations of Transferor with
respect to the Transferred Interest whenever and wherever accrued (other than
duties and obligations of Transferor required to be performed by it on or
prior to the Effective Time). Transferee hereby confirms that, from and after
the Effective Time, Transferee (a) shall be deemed, to the extent set forth in
Section 2 hereof, the "Owner Participant" party to the Participation
Agreement, the Tax Indemnity Agreement, the Trust Agreement and the other
Operative Agreements and (b) shall be bound by all of the terms of the
Operative Agreements to the extent the same relate to the Transferred
Interest.
4. Release of Transferor. At the Effective Time,
Transferor shall be relieved of all of its duties and obligations with respect
to the Transferred Interest under the Operative Agreements, provided, however,
that Transferor shall in no event be released from any such duty or
obligations arising or relating to any event occurring prior to the Effective
Time, or on account of any breach by Transferor of any of its representations,
warranties, covenants or obligations set forth in the Operative Agreements, or
for any fraudulent or willful misconduct engaged in by it prior to the
Effective Time, or from any obligation that relates to any indemnity claimed
by Transferor or any Lessor's Lien attributable to Transferor.
5. Fees and Expenses. The fees, expenses and charges
of the parties to the Participation Agreement incurred in connection with the
transfer effected hereby shall be for the account of [specify
Transferor/Transferee].
6. Payments. Transferor hereby covenants and agrees
to pay over to Transferee, if and when received following the Effective
Time, any amounts (including any sums payable as interest in respect
thereof) paid on account of the Transferred Interest to or for the benefit
of Transferor, and Transferee hereby covenants and agrees to pay over to
Transferor, if and when received following the Effective Time, any amounts
(including any sums payable as interest in respect thereof) paid to or for
the benefit of Transferee that are not attributable to the Transferred
Interest and to which Transferor is otherwise entitled.
7. Investment Purpose. Transferee hereby represents
and warrants that, as of the date hereof, it is acquiring the Transferred
Interest for its account with no present intention of distributing such
Transferred Interest or any part thereof in any manner which would violate
the Securities Act of 1933, as amended, but without prejudice, however, to
the right of Transferee at all times to sell or otherwise dispose of all or
any part of such Transferred Interest in compliance with Section 7.03(d) of
the Participation Agreement.
8. Representations and Warranties of Transferor.
Transferor represents and warrants to Transferee that as of the Effective
Time:
(a) Organization and Power. Transferor is a corporation
duly organized, validly existing and in good standing under the
laws of the State of Delaware and has full corporate power,
authority and legal right to execute, deliver and perform this
Agreement and to enter into and carry out the transactions
contemplated hereby and in the other Operative Agreements (the
"Transactions").
(b) Authorization, Execution and Validity. This Agreement
has been duly authorized, executed and delivered by Transferor and
constitutes the legal, valid and binding obligation of Transferor,
enforceable against it in accordance with its terms except as
enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the rights of
creditors generally and by general principles of equity.
(c) Conflict. The execution, delivery and performance by
Transferor of this Agreement and compliance by Transferor with all
of the provisions hereof do not contravene any regulation or any
order of any governmental authority applicable to or binding on
Transferor, or contravene the provisions, or constitute a default
by Transferor under, its certificate of incorporation or by-laws
or any indenture, mortgage, contract or other agreement or
instrument to which Transferor is a party or by which Transferor
or any of its Properties is bound or affected.
(d) Consents. No consent, approval or authorization of, or
filing, registration or qualification with, or the giving of
notice or the taking of any other action with respect to, any
governmental authority on the part of Transferor is required in
connection with the execution, delivery and performance by
Transferor of this Agreement.
(e) Litigation. There are no proceedings pending or, to
the knowledge of Transferor, threatened against Transferor before
any governmental authority that would materially and adversely
affect the ability of Transferor to consummate the Transactions.
(f) No Liens. The Trust Estate is free of Lessor's Liens
attributable to Transferor.
(g) Compliance with Operative Agreements. Transferor has
fully performed all of its obligations under the Participation
Agreement and under each other Operative Agreement which
obligations by their terms are required to be satisfied or
performed prior to the Effective Time or prior to the consummation
of the Transactions.
(h) Default. As a result of the transfer effected hereby,
no Indenture Default attributable to the Owner Participant or the
Owner Trustee has occurred and is continuing.
Notwithstanding the foregoing or anything else contained in
this Agreement, it makes no representation or warranty in this Agreement
with respect to laws, rules or regulations relating to aviation or to the
nature or use of the equipment owned by the Owner Trustee, including,
without limitation, the airworthiness, value, condition, workmanship,
design, patent or trademark infringement, operation, merchantability or
fitness for use of the Aircraft.
9. Representations and Warranties of Transferee.
Transferee represents and warrants to Transferor and to the other parties
to the Participation Agreement that as of the Effective Time:
(a) Transferee is a corporation duly organized, validly
existing and in good standing under the laws of the State of [ ],
has the full corporate power, authority and legal right to carry
on its business as now conducted, and has full corporate power,
authority and legal right to execute, deliver and perform this
Agreement and to enter into and carry out the transactions
contemplated hereby and in the other Operative Agreements (the
"Transactions");
(b) Transferee has full corporate power, authority and
legal right to execute, deliver and enter into this Agreement and
the other Operative Agreements and full corporate power and
authority to perform its obligations thereunder, and such
execution, delivery and performance do not and will not contravene
any applicable law or any order of any governmental authority
applicable to or binding on the Transferee, or contravene the
provisions of, or constitute a default under, or result in the
creation of any Lien upon the property of the Transferee under,
its articles of incorporation or by-laws or any material
indenture, mortgage, contract or other agreement or instrument to
which the Transferee is a party or by which it or any of its
property may be bound or affected;
(c) the execution, delivery and performance of this
Agreement by the Transferee (i) has been duly authorized by all
necessary corporate action and (ii) does not require any approval
of the shareholders of the Transferee or any approval or consent
of, or notice to, any trustee or holders of any indebtedness or
obligation of the Transferee, except for such approvals and
consents as have already been obtained;
(d) this Agreement has been duly executed and delivered by
the Transferee, and constitutes the legal, valid and binding
obligation of the Transferee, enforceable against the Transferee
in accordance with its terms, except as the same may be limited by
bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting the rights of creditors generally and by general
principles of equity;
(e) there are no proceedings or actions pending or, to the
knowledge of the Transferee, threatened against the Transferee
before any governmental authority in which there is a reasonable
probability of an adverse determination that individually or in
the aggregate would materially and adversely impair the ability of
the Transferee to perform its obligations under this Agreement or
the Operative Agreements, or which involve the Transactions or
question the validity of any Operative Agreement to which the
Owner Participant is a party or any action taken or to be taken
pursuant thereto; and the Transferee is not in default with
respect to any order of any governmental authority which involves
the Transactions or the default under which would materially and
adversely affect the ability of the Transferee to perform its
obligations under this Agreement or any of the Operative
Agreements;
(f) no consent, approval, order or authorization of, giving
of notice to, or registration with, or taking of any other action
in respect of, any governmental authority is required under any
law for the execution and delivery by the Transferee of this
Agreement, or the carrying out by the Transferee of any of the
Transactions, other than any such consent, approval, order,
authorization, registration, notice or action as has been duly
obtained, given or taken;
(g) the Lessor's Estate is free of any Lessor's Liens
attributable to the Transferee;
(h) the Transferee, upon execution of this Agreement, will
not be in default under any of the Operative Agreements;
(i) no part of the funds to be used by it to acquire the
interests acquired by the Owner Participant under the
Participation Agreement constitutes assets (within the meaning of
ERISA and any applicable rules and regulations) of any employee
benefit plan subject to Title I of ERISA or of any plan or
individual retirement account subject to Section 4975 of the Code;
(j) Transferee is a "U.S. Person" as defined in Section
7701(a)(30) of the Code and is not a tax resident of another
country and if it shall at any time cease to be such a "U.S.
Person" or shall become a tax resident of another country, it
shall furnish to the Agent and each Certificate Holder an
indemnity, in form and substance reasonably satisfactory to such
Certificate Holder, for any Taxes that may be imposed on such
Holder as a result of its failure to be such a "U.S. Person" or
as a result of its being a tax resident of another country, and it
shall be personally liable for any debt service to the extent that
the receipt of rentals is reduced by reason of any withholding
Taxes that result from such failure to be such a "U.S. Person" or
from being a tax resident of another country;
(k) [After giving effect to a voting trust or similar
agreement(*), Transferee is a Citizen of the United States]
[applicable if Aircraft is registered in the United States or is
proposed to be so registered]
- ------------
(*) Such voting trust or similar agreement must be reasonably satisfactory
to the Lessor and the Indenture Trustee.
(l) On and as of the Effective Date, the representations
and warranties of the Owner Participant in Article 7 of the
Participation Agreement are true and correct as to the Transferee;
and
(m) Transferee satisfies the conditions applicable to a
transferee of the Beneficial Interest set forth in Section 7.03(d)
of the Participation Agreement, including without limitation, the
condition set forth in the last sentence thereof [and to the
extent the same has been requested by the Lessee or the Indenture
Trustee, Transferee has heretofore provided to the Lessee and the
Indenture Trustee its most recent audited financial statements,
which show a consolidated tangible net worth or combined capital
and surplus of at least $75,000,000] [remove bracketed language if
an Owner Participant Guaranty is provided].
(n) the Transferee has, independently and without reliance
upon any other party (including without limitation the Transferor)
and based on such documents and information as it has deemed
appropriate, made its own credit analysis and decision to enter
into this Agreement, and the Transferee has established adequate
means of obtaining from Lessee on a continuing basis information
pertaining to, and is now and on a continuing basis will be
completely familiar with, the financial condition, operations,
properties and prospects of Lessee.
Notwithstanding the foregoing or anything else contained in
this Agreement, it makes no representation or warranty in this Agreement
with respect to laws, rules or regulations relating to aviation or to the
nature or use of the equipment owned by the Owner Trustee, including,
without limitation, the airworthiness, value, condition, workmanship,
design, patent or trademark infringement, operation, merchantability or
fitness for use of the Aircraft, other than such laws, rules or regulations
relating to the citizenship requirements of it under applicable aviation
law.
10. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. 11.
Effectiveness. This Agreement shall be effective upon the mutual execution
and delivery of this Agreement (the "Effective Time").
12. Counterparts. This Agreement may be executed in
any number of counterparts, all of which together shall constitute a single
instrument. It shall not be necessary that any counterpart be signed by
both parties so long as each party shall sign at least one counterpart.
13. Beneficiaries. Each of the Owner Trustee, the
Indenture Trustee, the Pass Through Trustee and the Lessee, together with
their respective successors and permitted assigns, is and shall be deemed a
third party beneficiary of this Agreement entitled to enforce this
Agreement directly and in its own name and enforce any rights or claims of
the parties hereto.
14. Further Assurances. Each party agrees that from
time to time after the Effective Time, it shall execute and deliver or
cause to be executed and delivered such instruments, documents and papers,
and take all such further action as may be reasonably required in order to
consummate fully the purposes of this Agreement and to implement the
transactions contemplated hereby.
IN WITNESS WHEREOF, the parties hereto have executed
this Agreement as of the day and year first above written.
[TRANSFEROR]
By:___________________________
Name:
Title:
[TRANSFEREE]
By:___________________________
Name:
Title:
EXHIBIT G-2
FORM OF OWNER PARTICIPANT GUARANTY
TRANSFEREE'S PARENT GUARANTY, dated as of ___________
__, ____, (this "Guaranty") by ____________________, a ___________
corporation (the "Guarantor"), to State Street Bank and Trust Company of
Connecticut, National Association, in its individual capacity and as Owner
Trustee, First Security Bank, National Association, as Indenture Trustee
and Pass Through Trustee, and Federal Express Corporation, as Lessee
(collectively, together with their successors and assigns and the holders
from time to time of the Certificates, the "Beneficiaries").
W I T N E S S E T H :
WHEREAS, ___________, a ____________ corporation (the
modified or supplemented from time to time, the "Participation Agreement"),
among Federal Express Corporation, as Lessee, PMCC Leasing Corporation, as
Owner Participant, State Street Bank and Trust Company of Connecticut,
National Association, not in its individual, except as otherwise stated
therein, but solely as Owner Trustee, First Security Bank, National
Association, not in its individual, except as otherwise stated therein, but
solely as Indenture Trustee, First Security Bank, National Association, not
in its individual, except as otherwise stated therein, but solely as Pass
Through Trustee and First Security Bank, National Association, as
Subordination Agent; and
WHEREAS, the Transferor wishes to transfer, among
other things, all of the rights, title and interest of the Transferor in
and to the Beneficial Interest under the Trust Agreement and the Lessor's
Estate created thereunder, and all of the Transferor's rights and
obligations under the Participation Agreement, the Trust Agreement and the
other Operative Agreements to __________________, a _______________
[corporation] (together with its successors and assigns, the "Transferee"),
a subsidiary of the Guarantor, pursuant to the Beneficial Interest Transfer
Agreement, dated as of the date hereof (the "Transfer Agreement"), between
the Transferor and the Transferee; and
WHEREAS, the terms of the Participation Agreement
provide that the aforementioned transfer is conditioned upon the execution
and delivery of this Guaranty by the Guarantor;
NOW, THEREFORE, in order that the Transferor may make
the aforementioned transfer to the Transferee, the Guarantor hereby agrees
with and for the benefit of the Beneficiaries as follows:
1. Definitions. Capitalized terms used herein
without definition shall have the respective meanings assigned thereto in
the Participation Agreement or the Transfer Agreement.
2. Guaranty. The Guarantor hereby unconditionally
and irrevocably guarantees, as primary obligor and not merely surety, to
the Beneficiaries the prompt and complete payment by the Transferee when
due of all payment obligations of the Transferee under the Operative
Agreements without offset or deduction and the timely performance of all
other obligations of the Transferee thereunder (such payment and other
obligations, the "Obligations"), and the Guarantor further agrees to pay
any and all expenses (including, without limitation, reasonable fees and
expenses of counsel) that may be paid or incurred by the Beneficiaries in
enforcing any rights with respect to, or collecting, any or all of the
Obligations and/or enforcing any rights with respect to, or collecting
against, the Guarantor under this Guaranty.
The Guarantor will not exercise any rights that it may
now or hereafter acquire against Transferee that arise from the existence,
payment, performance or enforcement of the Guarantor's Obligations under
this Guaranty, the Transferred Interest or the Operative Agreements,
including, without limitation, any right of subrogation, reimbursement,
exoneration, contribution or indemnification and any right to participate
in any claim or remedy of any Beneficiary against Transferee or any
collateral, whether or not such claim, remedy or right arises in equity or
under contract, statute or common law, including, without limitation, the
right to take or receive from Transferee, directly or indirectly, in cash
or other property or by set-off or in any other manner, payment or security
on account of such claim, remedy or right, unless and until all of the
Obligations have been performed in full and all other amounts payable under
this Guaranty shall have been paid in full in cash. If any amount shall be
paid to the Guarantor in violation of the preceding sentence at any time
prior to the final payment in full in cash of the Obligations and all other
amounts payable under this Guaranty, such amount shall be held in trust for
the benefit of any Beneficiary and shall forthwith be paid to such
Beneficiary to be credited and applied to the Obligations and all other
amounts payable under this Guaranty, whether matured or unmatured, in
accordance with the terms of the Operative Agreements, or to be held as
collateral for any Obligations or other amounts payable under this Guaranty
thereafter arising.
3. No Subrogation. Notwithstanding anything to the
contrary in this Guaranty, the Guarantor hereby agrees not to assert any
rights which may have arisen in connection with this Guaranty to be
subrogated to any of the rights (whether contractual, under the Bankruptcy
Code, under common law or otherwise) of any Beneficiary against the
Transferee for the payment of the Obligations until all of the Obligations
shall have been satisfied by payment and performance in full.
4. Amendments with Respect to the Obligations;
Waiver of Rights. The Guarantor shall remain fully obligated hereunder
notwithstanding that, without any reservation of rights against the
Guarantor and without notice to or further assent by the Guarantor, any
demand for payment or performance of any of the Obligations made by any
Beneficiary may be rescinded by such party and any of the obligations
continued, and the Obligations, may, from time to time, in whole or part,
be renewed, extended, amended, modified, accelerated, compromised, waived,
surrendered or released by any Beneficiary and any Operative Agreement may
be amended, modified, supplemented or terminated, in whole or in part, in
accordance with the provisions thereof from time to time. When making any
demand hereunder against the Guarantor, a Beneficiary may, but shall be
under no obligation to, make a similar demand on the Transferee, and any
failure by a Beneficiary to make any such demand or to collect any payments
from the Transferee or any release of the Transferee shall not relieve the
Guarantor of its obligations or liabilities hereunder, and shall not impair
or affect the rights and remedies, express or implied, or as a matter of
law, of any Beneficiary against the Guarantor. For the purposes hereof,
"demand" shall include the commencement and continuance of any legal
proceedings. The Guarantor represents and warrants that it is the parent
of the Transferee, and agrees that its obligations hereunder shall continue
unimpaired, even if the Guarantor is no longer an Affiliate of the
Transferee.
5. Guaranty Absolute and Unconditional. The
Guarantor guarantees that the Obligations will be paid and performed
strictly in accordance with the terms of the Transfer Agreement and the
Operative Agreements, regardless of any law, regulation or order now or
hereafter in effect in any jurisdiction affecting any such terms or the
rights of any Beneficiary with respect thereto. The obligations of the
Guarantor under this Guaranty are independent of the Obligations or any
other obligations of any other party, and a separate action or actions may
be brought and prosecuted against the Guarantor to enforce this Guaranty,
irrespective of whether the Transferee or any other party is joined in any
such action or actions. The Guarantor waives any and all notice of the
creation, renewal, extension or accrual of any of the Obligations and
notice of or proof of reliance by any Beneficiary upon this Guaranty or
acceptance of this Guaranty; the Obligations, and any of them, shall
conclusively be deemed to have been created, contracted or incurred, or
renewed, extended, amended or waived, in reliance upon this Guaranty; and
all dealings between the Transferee or the Guarantor and any Beneficiary
shall likewise be conclusively presumed to have been had or consummated in
reliance upon this Guaranty. The Guarantor waives, to the fullest extent
permitted by applicable law, diligence, presentment, promptness, protest,
mitigation of damages by the Beneficiaries demand for payment and notice of
default or nonpayment to or upon the Transferee or the Guarantor with
respect to the Obligations. The Guarantor further waives any right to
revoke this Guaranty, and acknowledges that this Guaranty is continuing in
nature and applies to all Obligations, whether existing now or in the
future. The Guarantor understands and agrees that, to the fullest extent
permitted by applicable law, this Guaranty shall be construed as a
continuing, absolute and unconditional guaranty of payment and performance
(and not merely of collectibility) without regard to:
(a) the validity, regularity or enforceability of the
Transfer Agreement, any Operative Agreement, or any of the
Obligations at any time or from time to time held by any
Beneficiary;
(b) any defense, set-off, rebate, adjustment, withholding,
deduction or counterclaim (other than a defense of payment or
performance) that may at any time be available to or be asserted
by the Transferee against any Beneficiary or any agreement or
instrument relating thereto or;
(c) any change in the time, manner or place of payment of,
or in any other term of, all or any of the obligations or any
other obligations of any other party under the Transfer Agreement,
the Operative Agreements, or any other amendment or waiver of or
any consent to departure from the Transfer Agreement or other
Operative Agreements;
(d) any taking, release or amendment or waiver of or consent
to departure from any other guaranty, for all or any of the
Obligations;
(e) any change, restructuring or termination of the
corporate structure or existence of the Guarantor or the
Transferee or any of the Affiliates of either;
(f) any defect in the title, condition, design, operation or
fitness of, or any interference with the operation, use or
possession of, the Aircraft;
(g) any failure to establish, perfect or preserve title to
or any security interest in or to the Aircraft or any other
collateral security for the Obligations; or
(h) any other circumstance whatsoever or any existence of or
reliance on any representation by any Beneficiary that might
otherwise constitute a defense available to, or a discharge of,
the Guarantor or any other guarantor or surety.
When pursuing its rights and remedies hereunder against the
Guarantor, any Beneficiary may, but shall be under no obligation to, pursue
such rights and remedies as it may have against the Transferee for the
Obligations, and any failure by any Beneficiary to pursue such other rights
or remedies or to collect any payments from the Transferee, or any release
of the Transferee, shall not, to the fullest extent permitted by applicable
law, relieve the Guarantor of any liability hereunder, and shall not impair
or affect the rights and remedies, whether express, implied or available as
a matter of law, of any Beneficiary against the Guarantor. This Guaranty
is a continuing guaranty and shall remain in full force and effect until
the earlier of (x) the date that all of the Obligations are satisfied by
payment and performance in full and (y) the date that all right, title and
interest of the Transferee shall have been transferred to a Person meeting
the requirements of Section 7.03(d) of the Participation Agreement in
accordance with said section; provided that this Guaranty shall remain in
full force and effect with respect to obligations relating to the period
prior to such transfer.
6. Reinstatement. This Guaranty shall continue to be
effective, or be reinstated, as the case may be, if at any time payment, or
any part thereof, of any of the Obligations is rescinded or must otherwise
be restored or returned by any Beneficiary upon the insolvency, bankruptcy
dissolution, liquidation or reorganization of the Transferee or the
Guarantor, or upon or as a result of the appointment of a receiver,
intervenor or conservator of, or trustee or similar officer for, the
Transferee or the Guarantor or any substantial part of its property, or
otherwise, all as though such payments had not been made and the Guarantor
agrees that it will indemnify any such Beneficiary on demand for all
reasonable costs and expenses (including, without limitation, reasonable
fees and expenses of counsel) by such Beneficiary in connection with such
rescission or restoration.
7. Payments. The Guarantor hereby guarantees that
payments hereunder shall be paid without set-off, counterclaim, deduction,
rebate, adjustment or withholding, and shall be made in U.S. Dollars in
immediately available funds.
8. Representations and Warranties. The Guarantor
hereby represents and warrants that:
(a) the Guarantor is a corporation duly organized, validly
existing and in good standing under the laws of the jurisdiction
of its incorporation and the Transferee is currently a subsidiary
of the Guarantor;
(b) the Guarantor has the power and authority and the legal
right to execute and deliver, and to perform its obligations
under, this Guaranty, and has taken all necessary corporate action
to authorize its execution, delivery and performance of this
Guaranty;
(c) this Guaranty constitutes a legal, valid and binding
obligation of the Guarantor enforceable in accordance with its
terms, except as enforceability may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting
the enforcement of creditors' rights generally;
(d) the execution, delivery and performance of this Guaranty
will not violate any provision of any requirement of law or
contractual obligation of the Guarantor or any of its constitutive
documents;
(e) no consent or authorization of, filing with, or other
act by or in respect of, any arbitrator or governmental authority
and no consent of any other person is required in connection with
the execution, delivery, performance, validity or enforceability
of this Guaranty;
(f) the Guarantor is a [a bank, savings institution, finance
company, leasing company or trust company, national banking
association acting for its own account or in a fiduciary capacity
as trustee or agent under any pension, retirement, profit sharing
or similar trust or fund, insurance company, fraternal benefit
society or corporation acting for its own account having a
combined capital and surplus (or, if applicable, consolidated
tangible net worth or its equivalent)] of not less than
$75,000,000 [and has, if the same have been requested by the
Lessee or the Indenture Trustee, heretofore furnished to the
Lessee and the Indenture Trustee copies of its most recent audited
financial statements];
(g) there are no conditions precedent to the effectiveness
of this Guaranty that have not been satisfied or waived; and
(h) the Guarantor has, independently and without reliance
upon any Beneficiary and based on such documents and information
as it has deemed appropriate, made its own credit analysis and
decision to enter into this Guaranty, and the Guarantor has
established adequate means of obtaining from Transferee on a
continuing basis information pertaining to, and is now and on a
continuing basis will be completely familiar with, the financial
condition, operations, properties and prospects of Transferee.
9. Severability. Any provision of this Guaranty that
is prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and
any such prohibition or unenforceability in any jurisdiction shall not
invalidate or render unenforceable such provision in any other
jurisdiction.
10. Jurisdiction; Waiver of Jury Trial, Etc.
(a) The Guarantor hereby irrevocably and
unconditionally submits, for itself and its property, to the nonexclusive
jurisdiction of any New York State court or federal court of the United
States of America sitting in New York, New York, and any appellate court
from any thereof, in any action or proceeding arising out of or relating to
this Guaranty, the Transfer Agreement or any Operative Agreement to which
it is or is to be a party, or for recognition or enforcement of any
judgment, and the Guarantor hereby irrevocably and unconditionally agrees
that all claims in respect of any such action or proceeding may be heard
and determined in any such New York State court or, to the extent permitted
by law, in such federal court. The Guarantor agrees that a final judgment
in any such action or proceeding shall be conclusive and may be enforced in
other jurisdictions by suit on the judgment or in any other manner provided
by law. Nothing in this Guaranty shall affect any right that any party may
otherwise have to bring any action or proceeding relating to this Guaranty,
the Transfer Agreement or any Operative Agreement to which it is or is to
be a party in the courts of any jurisdiction.
(b) The Guarantor irrevocably and unconditionally
waives, to the fullest extent it may legally and effectively do so, any
objection that it may now or hereafter have to the laying of venue of any
suit, action or proceeding arising out of or relating to this Guaranty, the
Transfer Agreement or any Operative Agreement to which it is or is to be a
party in any New York State or federal court. The Guarantor hereby
irrevocably waives, to the fullest extent permitted by law, the defense of
an inconvenient forum to the maintenance of such action or proceeding in
any such court.
11. Section Headings. The Section headings used in
this Guaranty are for convenience of reference only and are not to affect
the construction hereof or be taken into consideration in the
interpretation hereof.
12. No Waiver; Cumulative Remedies. No Beneficiary
shall by any act (except by a written instrument pursuant to Section 13
hereof), delay, indulgence, omission or otherwise be deemed to have waived
any right or remedy hereunder or to have acquiesced in any breach of any of
the terms and conditions hereof. No failure to exercise, nor any delay in
exercising, on the part of any Beneficiary, any right, power or privilege
hereunder shall operate as a waiver thereof. No single or partial exercise
of any right, power or privilege hereunder shall preclude any other or
further exercise thereof or the exercise of any other right power or
privilege. A waiver by a Beneficiary of any right or remedy hereunder on
any one occasion shall not be construed as a bar to any right or remedy
that such Beneficiary would otherwise have on any future occasion. The
rights and remedies herein provided are cumulative, may be exercised singly
or concurrently and are not exclusive of any rights or remedies provided by
law.
13. Amendments and Waivers. None of the terms or
provisions of this Guaranty may be waived, amended or supplemented or
otherwise modified except by a written instrument executed by the Guarantor
and each Beneficiary.
14. Successors and Assigns. This Guaranty shall be
binding upon the successors and assigns of the Guarantor and shall inure to
the benefit of the Beneficiaries and their respective successors and
permitted assigns but Guarantor may not assign this Guaranty without prior
written consent of the Beneficiaries except to an assignee making, as of
the date of such assignment, (i) representations and warranties
substantially similar to those contained in Section 8 hereof and (ii) a
representation that it is a U.S. citizen, unless, in the case of the
preceding clause (ii) any of (a) the aircraft is not then registered in the
United States nor contemplated to be so registered or (b) a voting trust or
similar arrangement reasonably satisfactory to the Beneficiaries is in
place with respect to such registration or (c) it is not necessary for the
Guarantor to be a U.S. citizen in order for the aircraft to remain
registered in the United States.
15. GOVERNING LAW. THIS GUARANTY SHALL BE GOVERNED
BY AND BE CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAW OF THE STATE
OF NEW YORK.
16. Notices. All notices, requests and demands to or
upon the Guarantor or any Beneficiary to be effective shall be in writing
and, unless otherwise expressly provided herein, shall be deemed to have
been duly given or made, when delivered by hand or by mail, upon receipt,
or, when delivered by facsimile transmission, upon being sent and
confirmed, addressed (a) in the case of the Guarantor, to the Guarantor at
its office at [_________________________________], and (b) in the case of
any Beneficiary, to such Beneficiary at the address provided for such
Beneficiary in or pursuant to the Participation Agreement.
IN WITNESS WHEREOF, the undersigned has caused this Guaranty to
be duly executed and delivered by its duly authorized officer as of the day
and year first above written.
[NAME OF GUARANTOR]
_________________________________
Name:
Title:
PARTICIPATION AGREEMENT
(FEDERAL EXPRESS CORPORATION TRUST NO. N674FE)
Dated as of May 1, 1997
among
FEDERAL EXPRESS CORPORATION,
Lessee
PMCC LEASING CORPORATION,
Owner Participant
STATE STREET BANK AND TRUST COMPANY OF CONNECTICUT,
NATIONAL ASSOCIATION,
Not in Its Individual Capacity
Except as Otherwise Expressly
Set Forth Herein, but Solely as Owner Trustee,
Owner Trustee
FIRST SECURITY BANK, NATIONAL ASSOCIATION,
Indenture Trustee
FIRST SECURITY BANK, NATIONAL ASSOCIATION,
Pass Through Trustee
and
FIRST SECURITY BANK, NATIONAL ASSOCIATION,
Subordination Agent
______________________________
LEVERAGED LEASE OF ONE AIRBUS A300F4-605R AIRCRAFT
SERIAL NO. 781, REGISTRATION NO. N674FE
TABLE OF CONTENTS
Page
Initial Recitals........................................................... 1
ARTICLE 1
DEFINITIONS............................................................. 3
ARTICLE 2
ISSUANCE OF PASS THROUGH CERTIFICATES;
ISSUANCE AND PURCHASE OF CERTIFICATES
Section 2.01. Transfer of Funds........................................ 4
Section 2.02. Certificates............................................. 5
Section 2.03. Owner Participant's Instructions to Owner Trustee........ 5
Section 2.04. Pre-Delivery Date Adjustments to Basic Rent, Stipulated
Loss Values and Termination Values....................... 5
ARTICLE 3
PARTICIPATION IN INVESTMENT ON DELIVERY DATE;
DELIVERY OF AIRCRAFT
Section 3.01. Lessee's Notice of Delivery Date......................... 6
Section 3.02. Commitments to Participate in Purchase Price............. 6
Section 3.03. Owner Participant's Instructions to Owner Trustee........ 9
Section 3.04. Transaction Costs........................................ 9
Section 3.05. Postponement of Delivery Date............................ 9
Section 3.06. Closing.................................................. 11
ARTICLE 4
CONDITIONS PRECEDENT
Section 4.01. Conditions Precedent (Certificate Closing Date).......... 11
Section 4.02. Conditions Precedent (Delivery Date)..................... 20
Section 4.03. Opinion of Special Aviation Counsel Upon Registration.... 28
ARTICLE 5
CONDITIONS PRECEDENT TO LESSEE'S OBLIGATIONS
Section 5.01. Conditions Precedent to Lessee's Obligations............. 28
ARTICLE 6
LESSEE'S REPRESENTATIONS, WARRANTIES AND COVENANTS
Section 6.01. Lessee's Representations and Warranties.................. 29
Section 6.02. Offering by Lessee....................................... 35
Section 6.03. Certain Covenants of Lessee.............................. 36
Section 6.04. Survival of Representations and Warranties............... 43
ARTICLE 7
OTHER PARTIES' REPRESENTATIONS, WARRANTIES AND COVENANTS
Section 7.01. Acquisitions and Offerings of Interests in Lessor's
Estate................................................... 44
Section 7.02. Citizenship.............................................. 44
Section 7.03. Representations, Warranties and Covenants of Owner
Participant.............................................. 45
Section 7.04. Representations, Covenants and Warranties of SSB and the
Owner Trustee............................................ 50
Section 7.05. Representations, Warranties and Covenants of the Indenture
Trustee.................................................. 53
Section 7.06. Indenture Trustee's Notice of Default.................... 54
Section 7.07. Releases from Indenture.................................. 54
Section 7.08. Covenant of Quiet Enjoyment.............................. 54
Section 7.09. Pass Through Trustee's Representations and Warranties.... 54
Section 7.10. Survival of Representations, Warranties and Covenants.... 55
Section 7.11. Lessee's Assumption of the Certificates.................. 56
Section 7.12. Indebtedness of Owner Trustee............................ 58
Section 7.13. Compliance with Trust Agreement, Etc..................... 58
Section 7.14. Subordination Agent's Representations, Warranties and
Covenants................................................ 58
ARTICLE 8
TAXES
Section 8.01. Lessee's Obligation to Pay Taxes......................... 60
Section 8.02. After-Tax Basis.......................................... 66
Section 8.03. Time of Payment.......................................... 66
Section 8.04. Contests................................................. 67
Section 8.05. Refunds.................................................. 69
Section 8.06. Lessee's Reports......................................... 69
Section 8.07. Survival of Obligations.................................. 70
Section 8.08. Payment of Taxes......................................... 70
Section 8.09. Reimbursements by Indemnitees Generally.................. 70
Section 8.10. Special Indemnity........................................ 71
ARTICLE 9
GENERAL INDEMNITY
Section 9.01. Generally................................................ 71
Section 9.02. After-Tax Basis.......................................... 75
Section 9.03. Subrogation.............................................. 75
Section 9.04. Notice and Payment....................................... 75
Section 9.05. Refunds.................................................. 75
Section 9.06. Defense of Claims........................................ 76
Section 9.07. Survival of Obligations.................................. 77
Section 9.08. Effect of Other Indemnities.............................. 77
Section 9.09. Interest................................................. 77
Section 9.10. Special Indemnity........................................ 78
ARTICLE 10
TRANSACTION COSTS
Section 10.01. Transaction Costs and Other Costs....................... 78
ARTICLE 11
SUCCESSOR OWNER TRUSTEE
Section 11.01. Appointment of Successor Owner Trustee.................. 80
ARTICLE 12
LIABILITIES AND INTERESTS OF THE OWNER PARTICIPANT AND HOLDERS
Section 12.01. Liabilities of the Owner Participant.................... 82
Section 12.02. Interest of Holders of Certificates..................... 82
ARTICLE 13
OTHER DOCUMENTS
Section 13.01. Consent of Lessee to Other Documents.................... 82
Section 13.02. Further Assurances...................................... 83
Section 13.03. Pass Through Trustee's and Subordination Agent's
Acknowledgment.......................................... 83
ARTICLE 14
NOTICES
Section 14.01. Notices................................................. 83
ARTICLE 15
REFINANCING/REOPTIMIZATION
Section 15.01. Refinancing............................................. 84
Section 15.02. Reoptimization.......................................... 88
ARTICLE 16
[RESERVED]
ARTICLE 17
MISCELLANEOUS
Section 17.01. Owner for Federal Tax Purposes.......................... 89
Section 17.02. Collateral Account...................................... 89
Section 17.03. Counterparts............................................ 90
Section 17.04. No Oral Modifications................................... 90
Section 17.05. Captions................................................ 91
Section 17.06. Successors and Assigns.................................. 91
Section 17.07. Concerning the Owner Trustee, Indenture Trustee and the
Pass Through Trustee.................................... 91
Section 17.08. Severability............................................ 92
Section 17.09. Public Release of Information........................... 92
Section 17.10. Certain Limitations on Reorganization................... 92
Section 17.11. GOVERNING LAW........................................... 93
Section 17.12. Section 1110 Compliance................................. 93
Section 17.13. Reliance of Liquidity Providers......................... 93
ARTICLE 18
CONFIDENTIALITY
Section 18.01. Confidentiality......................................... 93
SCHEDULE I Certificate Information
SCHEDULE II Definitions
SCHEDULE III Permitted Country List
SCHEDULE IV Debt Portion
EXHIBIT A(1)(a)(i) Opinion of Lessee's Counsel
(Certificate Closing Date)
EXHIBIT A(1)(a)(ii) Opinion of Lessee's Counsel
(Delivery Date)
EXHIBIT A(1)(b)(i) Opinion of Lessee's Special Counsel
(Certificate Closing Date)
EXHIBIT A(1)(b)(ii) Opinion of Lessee's Special Counsel
(Delivery Date)
EXHIBIT A(2)(a) Opinion of Owner Participant's and Owner Participant
Guarantor's Special Counsel
EXHIBIT A(2)(b) Opinion of Owner Participant's and Owner Participant
Guarantor's Counsel
EXHIBIT A(3) Opinion of Indenture Trustee's Special Counsel
EXHIBIT A(4)(a)(i) Opinion of Owner Trustee's Special Counsel
(Certificate Closing Date)
EXHIBIT A(4)(a)(ii) Opinion of Owner Trustee's Special Counsel
(Delivery Date)
EXHIBIT A(5) Opinion of Pass Through Trustee's and Subordination
Agent's Special Counsel
EXHIBIT A(6)(a) Opinion of Liquidity Provider's Counsel
EXHIBIT A(6)(b) Opinion of Liquidity Provider's Special Counsel
EXHIBIT A(7) Opinion of Engine Manufacturer's Counsel
EXHIBIT A(8) Opinion of Manufacturer's and AVSA's Counsel
EXHIBIT A(9) Opinion of Special Aviation Counsel
EXHIBIT B Form of Lease Agreement
EXHIBIT C Form of Indenture
EXHIBIT D Form of Trust Agreement
EXHIBIT E Form of Purchase Agreement Assignment, Consent and
Agreement, AVSA Consent and Agreement
EXHIBIT F Form of Engine Warranty Assignment and Engine Consent
EXHIBIT G-1 Form of Assignment and Assumption Agreement
EXHIBIT G-2 Form of Owner Participant Guaranty
PARTICIPATION AGREEMENT
(FEDERAL EXPRESS CORPORATION TRUST NO. N674FE)
PARTICIPATION AGREEMENT (FEDERAL EXPRESS CORPORATION TRUST NO.
N674FE) dated as of May 1, 1997 (this "Agreement") among FEDERAL EXPRESS
CORPORATION, a Delaware corporation (herein, together with its successors and
permitted assigns, the "Lessee"), PMCC LEASING CORPORATION, a Delaware
corporation (herein, together with its successors and permitted assigns, the
"Owner Participant"), STATE STREET BANK AND TRUST COMPANY OF CONNECTICUT,
NATIONAL ASSOCIATION, a national banking association, not in its individual
capacity, except as otherwise expressly stated herein, but solely as owner
trustee under the Trust Agreement referred to below (in such capacity as
trustee, together with its successors and permitted assigns, the "Owner
Trustee"), FIRST SECURITY BANK, NATIONAL ASSOCIATION, a national banking
association, not in its individual capacity, except as otherwise expressly
stated herein, but solely as indenture trustee under the Indenture referred to
below (in such capacity as trustee, together with its successors and permitted
assigns, the "Indenture Trustee"), FIRST SECURITY BANK, NATIONAL ASSOCIATION,
a national banking association, not in its individual capacity, except as
otherwise expressly stated herein, but solely as pass through trustee of three
separate Pass Through Trusts (in such capacity as trustee, together with its
successors and permitted assigns, the "Pass Through Trustee"), and FIRST
SECURITY BANK, NATIONAL ASSOCIATION, a national banking association, not in its
individual capacity, except as otherwise expressly stated herein, but solely as
subordination agent (in such capacity as trustee, together with its successors
and permitted assigns, the "Subordination Agent").
W I T N E S S E T H :
WHEREAS, capitalized terms used herein shall have the respective
meanings set forth or referred to in Article 1 hereof.
WHEREAS, the Owner Participant has entered into the Trust Agreement
with the Owner Trustee in its individual capacity, substantially in the form
of Exhibit D hereto, pursuant to which Trust Agreement the Owner Trustee
agrees, among other things, to hold the Lessor's Estate for the benefit of the
Owner Participant on the terms specified in the Trust Agreement, subject to
the Lien of the Indenture.
WHEREAS, on the Pass Through Closing Date, a closing will occur
with respect to the public offering of Pass Through Certificates issued by
each Pass Through Trust, an allocable amount of the proceeds of which
offering will be used by the Pass Through Trustee to purchase for each such
Pass Through Trust the Certificates of the Series and Maturity applicable
thereto.
WHEREAS, on the Certificate Closing Date, the Owner Trustee and the
Indenture Trustee will enter into the Indenture for the benefit of the Pass
Through Trustee, pursuant to which the Owner Trustee is issuing the
Certificates to the Subordination Agent on behalf of the Pass Through Trustee
as evidence of the loans made by the Pass Through Trustee to the Owner
Trustee, the proceeds of which loans will be deposited by the Indenture
Trustee on behalf of the Owner Trustee in the Collateral Account.
WHEREAS, concurrently with the execution and delivery hereof, (i)
Kredietbank N.V., acting through its New York Branch will enter into two
revolving credit agreements (each, a "Liquidity Facility"), one for the
benefit of the holders of Pass Through Certificates of each of the Pass
Through Trusts for the Series A Certificates and the Series B Certificates,
with the Subordination Agent, as agent for the Pass Through Trustee on behalf
of each such Pass Through Trust; and (ii) the Pass Through Trustee, each
Liquidity Provider and the Subordination Agent will enter into the
Intercreditor Agreement.
WHEREAS, the Certificates will be held by the Subordination Agent
pursuant to the Intercreditor Agreement on behalf of the Pass Through Trustee
for each of the Pass Through Trusts.
WHEREAS, prior to the Delivery Date, the Certificates will be secured
by the Liquid Collateral.
WHEREAS, pursuant to the terms of the Trust Agreement, the Owner
Trustee will be authorized and directed by the Owner Participant:
(a) on the Delivery Date, to purchase the Aircraft from AVSA;
(b) on the Certificate Closing Date, to execute and deliver the
Lease substantially in the form of Exhibit B hereto, pursuant to which,
subject to the terms and conditions set forth in said Lease, the Owner
Trustee agrees to lease to the Lessee, and the Lessee agrees to lease from
the Owner Trustee, the Aircraft on the Delivery Date, such lease to be
effected by the execution and delivery on the Delivery Date of a Lease
Supplement, in the form of Exhibit A to the Lease, covering the Aircraft
and incorporating by reference all of the terms of the Lease;
(c) on the Certificate Closing Date, to execute and deliver the
Indenture, substantially in the form of Exhibit C hereto, for the benefit
of the Holders from time to time of the Certificates, pursuant to which the
Owner Trustee agrees, among other things, (A) to deposit, mortgage and
pledge with the Indenture Trustee, as part of the Trust Indenture Estate,
all of the Lessor's Estate but not Excepted Payments, (B) on the
Certificate Closing Date, to issue Certificates substantially in the form
set forth in Exhibit B to the Indenture, the proceeds of the sale of which
will be held by the Indenture Trustee on behalf of the Owner Trustee in
the Collateral Account until released in accordance with the terms
hereof and of the Indenture, and (C) on the Delivery Date, to execute
and deliver the Indenture and Security Agreement Supplement,
substantially in the form of Exhibit A to the Indenture, covering the
Aircraft and supplementing the Indenture;
(d) on the Certificate Closing Date, to execute and deliver the
Purchase Agreement Assignment, whereby the Lessee assigns to the Owner
Trustee the right to purchase the Aircraft from AVSA and certain of the
Lessee's rights and interests under the Purchase Agreement and the Consent
and Guaranty to the extent that the same relate to the Aircraft (except to
the extent reserved in said Purchase Agreement Assignment), which Purchase
Agreement Assignment is to include as an annex a Consent and Agreement
executed by the Manufacturer and the AVSA Consent and Agreement executed by
AVSA, said Purchase Agreement Assignment, Consent and Agreement and AVSA
Consent and Agreement to be substantially in the form of Exhibit E hereto;
and
(e) on the Certificate Closing Date, to execute and deliver the
Engine Warranty Assignment, whereby the Lessee assigns to the Owner Trustee
certain of the Lessee's rights and interests under the GTA to the extent
that the same relate to the Engines (except to the extent reserved in the
Engine Warranty Assignment), which Engine Warranty Assignment is to include
as an annex an Engine Consent executed by the Engine Manufacturer, said
Engine Warranty Assignment and Engine Consent to be substantially in the
form of Exhibit F hereto.
WHEREAS, on the Delivery Date pursuant to and subject to the terms
and conditions of this Agreement, the Purchase Agreement Assignment, the
Engine Warranty Assignment, AVSA's FAA Bill of Sale, AVSA's Warranty Bill
of Sale and the Airbus Guaranty, the Owner Trustee will purchase, and
receive title to, the Aircraft from AVSA and lease the Aircraft to the
Lessee pursuant to the Lease.
NOW, THEREFORE, in consideration of the mutual covenants contained in
this Agreement and other good and valuable consideration, receipt of which is
hereby acknowledged, the parties hereto agree as follows:
ARTICLE 1
DEFINITIONS
Unless otherwise specifically provided herein, the definitions set
forth in Schedule II hereto are incorporated herein for all purposes of this
Agreement and shall be equally applicable to both the singular and the plural
forms of the terms so defined.
ARTICLE 2
ISSUANCE OF PASS THROUGH CERTIFICATES;
ISSUANCE AND PURCHASE OF CERTIFICATES
Section 2.01. Transfer of Funds.
(a) On or before the Pass Through Closing Date, the Pass Through
Trustee and the Lessee, in accordance with the Pass Through Agreement, shall
enter into the Series Supplements, and, subject to the terms and conditions
set forth therein, on the Pass Through Closing Date (i) the Lessee shall
direct the Underwriters to execute a wire transfer or intra-bank transfer to
the Pass Through Trustee in the amount of the total proceeds payable pursuant
to the Underwriting Agreement with respect to the Pass Through Certificates
and (ii) the Pass Through Trustee shall deliver the Pass Through Certificates
to the Underwriters upon receipt by the Pass Through Trustee of such proceeds.
(b) Subject to the satisfaction or waiver of the conditions set
forth herein, on the Certificate Closing Date, on behalf of each Pass Through
Trust, from an allocable amount of the proceeds of the sale of the related
Pass Through Certificates, the Pass Through Trustee shall purchase the
Certificates specified for such Pass Through Trust on Schedule I hereto. For
each Pass Through Trust, the Pass Through Trustee shall pay an amount equal to
the principal amount of Certificates of the Series and Maturity that relates
to such Pass Through Trust, which amounts in the aggregate shall equal the
aggregate principal amount of the Certificates as specified in Section 2.04 of
the Indenture. The aggregate amount payable by the Pass Through Trustee
pursuant to this Section 2.01(b) shall be payable by wire transfer or
intra-bank transfer to the Indenture Trustee on behalf of the Owner Trustee.
(c) On the Certificate Closing Date, the Indenture Trustee shall,
on behalf of the Owner Trustee, deposit, by wire transfer or intra-bank
transfer, the amounts received by it pursuant to Section 2.01(b) hereof in the
Collateral Account pursuant to the Indenture.
(d) On the Certificate Closing Date concurrently with the events
specified in Section 2.01(b) hereof, the parties hereto shall execute and
deliver, to the extent they are parties thereto, and consent to the execution
and delivery of (if they are not parties thereto), the Lease (other than the
Lease Supplement), the Indenture (other than the Indenture and Security
Agreement Supplement), and the other documents listed in Section 4.01(d)
hereof, and the Owner Trustee shall execute and deliver to the Indenture
Trustee for authentication, and the Indenture Trustee shall authenticate and
deliver to the Subordination Agent on behalf of the Pass Through Trustee for
each of the Pass Through Trusts, upon the request of the Owner Trustee, the
Certificates as provided in Section 2.02 hereof.
(e) The Closings shall take place at the offices of Davis Polk &
Wardwell, 450 Lexington Avenue, New York, New York 10017.
Section 2.02. Certificates. Subject to the satisfaction or waiver
of the conditions set forth herein, on the Certificate Closing Date, the Owner
Participant will instruct the Owner Trustee to execute and deliver to the
Indenture Trustee, and the Indenture Trustee shall authenticate and deliver,
upon the request of the Owner Trustee, to the Subordination Agent on behalf of
the Pass Through Trustee for each of the Pass Through Trusts, the Certificates
specified for such Pass Through Trust on Schedule I attached hereto, which (i)
shall be issued in the principal amount and in the Series and Maturity set
forth for such Certificate in Schedule I hereto, (ii) shall bear interest at
the interest rate set forth for such Certificate in Schedule I hereto, (iii)
shall be issued in such form and on such terms as are specified in the
Indenture, (iv) shall be dated and authenticated on the Certificate Closing
Date and shall bear interest from the Certificate Closing Date and (v) shall
be registered in the name of the Subordination Agent on behalf of the Pass
Through Trustee for such Pass Through Trust.
Section 2.03. Owner Participant's Instructions to Owner Trustee.
The Owner Participant agrees that the issuance of Certificates in
accordance with the terms hereof shall constitute, without further act,
authorization and direction by the Owner Participant to the Owner Trustee
to take the action specified in Section 1.01 (other than clauses (a) and
(c)) of the Trust Agreement and confirmation that all conditions to closing
in respect of the Certificate Closing Date set forth in Section 4.01 (but
not Section 4.02) hereof were either met to the satisfaction of the Owner
Participant or, if not so met, were in any event waived by it.
Section 2.04. Pre-Delivery Date Adjustments to Basic Rent,
Stipulated Loss Values and Termination Values. On or prior to the Delivery
Date, the percentages for Basic Rent referred to in Schedule II of the Lease
and the percentages for Stipulated Loss Value and Termination Value in
Schedule III and Schedule IV, respectively, of the Lease shall be adjusted
(upward or downward), subject to the procedures set forth in Section 3.04 of
the Lease and the minimum values established by Section 3.05 of the Lease and
the definitions of Stipulated Loss Value and Termination Value, to reflect
changes in the pricing assumptions with respect to (i) the Delivery Date being
other than September 23, 1997, (ii) a different rate of interest or amortization
schedule assumed by the Owner Participant in calculating such percentages from
that assumed by the Owner Participant in originally calculating such
percentages, (iii) Transaction Costs being other than as assumed in Section
10.01 hereof, (iv) any change in the length of the Basic Term (but in no event
shall the Term exceed 23.25 years) and (v) a Change in Tax Law which occurs
after the date of the execution of this Agreement but on or prior to the
Delivery Date. Notwithstanding anything herein to the contrary, the Lessee
shall have no obligation to enter into the transaction contemplated by this
Agreement other than with respect to Transaction Costs as described in Section
2.03 below and its obligation to purchase the Aircraft as provided in Section
3.05(a) hereof if, as a result of a Change in Tax Law after the date of
execution of this Agreement but on or prior to the Delivery Date, the Net
Present Value of Rents is increased by 100 basis points or more.
ARTICLE 3
PARTICIPATION IN INVESTMENT ON DELIVERY DATE;
DELIVERY OF AIRCRAFT
Section 3.01. Lessee's Notice of Delivery Date. The Lessee agrees
to give the Owner Participant, the Indenture Trustee, the Owner Trustee and
the Pass Through Trustee at least three (3) Business Days' written or
facsimile notice prior to the Delivery Date (which notice shall be effective
only if received not later than 10:00 a.m. (New York City time) on the date
that is at least three (3) Business Days prior to the Delivery Date), which
Delivery Notice shall specify the amount of the Purchase Price, the amount of
the Owner Participant's Commitment, the Debt Portion, the Delivery Date for
the Aircraft, the serial number of the Airframe and each Engine, and the
Aeronautics Authority registration number for the Aircraft.
Section 3.02. Commitments to Participate in Purchase Price. (a)
Participation in Purchase Price. Subject to the terms and conditions of this
Agreement, on the Delivery Date, (i) subject to the proviso to this Section
3.02(a), the Indenture Trustee agrees to release the Debt Portion or such
lesser amount as may then be held in the Collateral Account together with the
Lessee Shortfall (as defined in clause (iii) below), if any, to the Owner
Trustee for application to the Purchase Price as provided below, (ii) the
Owner Participant agrees to participate in the Lessor's payment of the
Purchase Price by making an investment in the beneficial ownership of the
Lessor's Estate in an amount equal to the amount set forth in Ancillary
Agreement II, (iii) subject to the proviso to this Section 3.02(a), the Lessee
agrees to pay to the Indenture Trustee the excess, if any, of (I) the Debt
Portion over (II) such amount as may then be held in the Collateral Account
(the "Lessee Shortfall") as provided in Section 17.02(a) hereof, and (iv)
pursuant to the Purchase Agreement as assigned pursuant to the Purchase
Agreement Assignment, AVSA shall sell the Aircraft to the Owner Trustee and
the Owner Trustee shall immediately thereafter lease the Aircraft to the
Lessee pursuant to the Lease. In consideration for the assignment to the
Owner Trustee by the Lessee under the Purchase Agreement Assignment of the
Lessee's right to purchase the Aircraft for the remaining balance due under
the Purchase Agreement and for the transfer of title to the Aircraft from
AVSA to the Owner Trustee, the following cash payments will be made by wire
transfer of immediately available funds on the Delivery Date: (A) by the
Owner Trustee to AVSA, an amount equal to the remaining balance due to AVSA
under the Purchase Agreement for the Aircraft, as evidenced by the Invoice,
or if the proviso to this Section 3.02(a) is applicable, such amount as it
shall have received from the Owner Participant not to exceed such remaining
balance due to AVSA, (B) by the Owner Trustee to the Lessee, an amount
equal to the Purchase Price (or if the proviso to this Section 3.02(a) is
applicable, the amount received from the Owner Participant) minus the cash
payment to AVSA pursuant to clause (A) above and (C) by the Indenture
Trustee, on behalf of the Owner Trustee, to the Lessee the excess of any
amounts as may then be held in the Collateral Account over the Debt
Portion; provided, however, that if (1) the Delivery Date has been
postponed, (2) the investments contemplated by Section 2.14(b) of the
Indenture have been made, (3) such investments do not mature on the
rescheduled Delivery Date and (4) the Lessee elects not to break such
investments, then the Indenture Trustee shall not release amounts in the
Collateral Account to the Owner Trustee and the Lessee shall instead pay to
AVSA any balance of the Purchase Price remaining after payment to AVSA by
the Owner Trustee as contemplated by clause (A) above and the Indenture
Trustee shall pay to the Lessee at the end of the applicable investment
period referred to in Section 2.14(b) of the Indenture all amounts then
held in the Collateral Account.
(b) Payment of Commitment. The Owner Participant agrees with the
Lessee and only with the Lessee on behalf of the Owner Trustee, subject to the
terms and conditions of this Agreement, to make the amount of its Commitment
available for and on account of the Owner Trustee on the Delivery Date
specified in the Delivery Notice pursuant to Section 3.03 hereof by wire
transfer, initiated by 10:00 a.m. (New York City time on such day) of such
amount in immediately available funds, to the Owner Trustee for deposit in its
account at State Street Bank and Trust Company, Boston, Massachusetts, ABA
No. 011-000-028, A/C No. 9900-314-7, Attention: Christy O'Connor, Re: FedEx
Equity Payments Account. The amount of the Owner Participant's Commitment
shall be held for the account of the Owner Participant by the Owner Trustee
until released by the Owner Participant or its special counsel at closing or
until returned to the Owner Participant in accordance with Section 3.02(c)
hereof.
(c) No Obligation to Increase Commitments; Delayed Delivery. (i) If
the Indenture Trustee shall default in its obligation to make the amount of
its Debt Portion available pursuant hereto, the Owner Participant shall have
no obligation to make any portion of such Debt Portion available or to
increase the amount of its Commitment, and the obligations of the Owner
Participant shall remain subject to the terms and conditions of this
Agreement, until no later than September 30, 1997 (provided, however, if
the Delivery Date for the Aircraft is prior to the delivery date for the
aircraft bearing manufacturer's serial number 780 then the foregoing date
shall be September 30, 1997).
(ii) Subject to the provisions of Section 3.05 hereof, if the closing
of the transactions contemplated by the Operative Agreements shall not have
been consummated by 2:00 p.m. (New York City time), or such earlier time as
directed by the Lessee, on the Scheduled Delivery Date, the Owner Trustee
shall, if instructed in writing by the Lessee, at the risk and expense of the
Lessee, use its reasonable best efforts to cause the Owner Participant's
Commitment to be invested and reinvested to the extent practicable at the
direction received by it from the Lessee (with a copy to the Owner
Participant), at the risk of the Lessee, in Permitted Investments consisting
of either commercial paper or time deposits; provided, however, that in the
absence of instructions by 2:00 p.m. (New York City time) the Owner Trustee
shall use its reasonable best efforts to cause such amount or the proceeds
thereof to be invested and reinvested to the extent practicable in overnight
Eurodollar time deposits. Earnings on any such investments shall be applied
to the Lessee's payment obligations, if any, to such Owner Participant
pursuant to the next succeeding paragraph, and the balance, if any, of such
earnings remaining after such application shall be paid in accordance with the
Lessee's written instructions.
If for any reason (i) the Operative Agreements shall not be executed
and delivered by the respective parties thereto and/or the delayed Delivery
Date shall not occur (whether by reason of a failure to meet a condition
precedent thereto set forth in Article 4 hereof or otherwise) on or before the
third Business Day after the Scheduled Delivery Date (or earlier if requested
by the Owner Participant) or, if earlier, the Cut-Off Date, or (ii) the Lessee
has notified the Owner Trustee (with a copy to the Owner Participant) prior to
2:00 p.m. (New York City time) on any date after the Scheduled Delivery Date
that it does not intend to go forward to close the transactions contemplated
hereby for such Delivery Date, the Owner Participant may cancel any funding
arrangements made to fund its Commitment on the Scheduled Delivery Date but
the Owner Participant's Commitment hereunder with respect to the Aircraft
shall not be terminated thereby until December 31, 1997 (or, in the
circumstances set forth in the proviso in paragraph (i) above, September
30, 1997), whereupon the Owner Participant's Commitment hereunder shall
terminate. On such third Business Day (or such earlier date) or December
31, 1997 (or September 30, 1997, as the case may be), or the earliest
practicable Business Day thereafter, the Owner Trustee shall return the
amounts held by it hereunder to the Owner Participant, provided that the
Owner Trustee shall have had a reasonable time to liquidate any Permitted
Investments it has been authorized to invest in pursuant to the preceding
paragraph and to obtain the proceeds therefrom in funds of the type
originally received, and the Lessee shall pay interest on such funds to the
Owner Participant at the Debt Rate, such interest to be payable for the
period from and including such Scheduled Delivery Date to but excluding the
date such funds are returned to the Owner Participant in accordance with
the terms hereof; provided that if any such funds are returned to the Owner
Participant after 2:00 p.m. (New York City time) on any such date, such
funds shall be deemed for purposes of this paragraph to have been returned
on the next succeeding Business Day.
The Lessee shall reimburse the Owner Trustee on demand for any loss
incurred by the Owner Trustee as a result of the investment of funds by the
Owner Trustee in accordance with the terms of this Section 3.02(c). Further,
the Lessee shall indemnify the Owner Trustee and hold it harmless from and
against any cost or expense the Owner Trustee may incur as a result of any
investment of funds or transfer of funds referred to herein in accordance with
the terms hereof. The Owner Trustee shall not be liable for failure to invest
such funds except as otherwise provided herein or for any losses incurred on
such investments except for any losses arising out of its own gross negligence
or willful misconduct.
Section 3.03. Owner Participant's Instructions to Owner Trustee.
The Owner Participant agrees that the release of its Commitment in
accordance with the terms hereof shall constitute, without further act,
authorization and direction by the Owner Participant to the Owner Trustee
to take the actions specified in Sections 1.01(a) and (c) of the Trust
Agreement and confirmation that all conditions to closing set forth in
Section 4.02 hereof were either met to the satisfaction of the Owner
Participant or, if not so met, were in any event waived by it.
Section 3.04. Transaction Costs. If the transactions contemplated
by this Article 3 are consummated, as and when any portion of Transaction
Costs becomes due and payable, the Owner Participant shall, as soon as
practicable upon receipt of bills or invoices for the amounts payable make
such payments or, if the Lessee shall have already made such payment, shall
reimburse the Lessee therefor or shall, as soon as practicable, furnish the
Owner Trustee funds sufficient to, and the Owner Trustee shall, as soon as
practicable, make payment of such portion to the Person or Persons entitled to
payment upon presentation to the Owner Trustee of bills or invoices for the
amount of such payment. If such transactions are not consummated, the Lessee
shall pay or cause to be paid all the Transaction Costs; provided, however
that if the failure of such transactions to be consummated is due to (i) a
failure of the Owner Participant to obtain investment approval to proceed with
the transaction contemplated hereby, (ii) a failure to negotiate the Operative
Agreements in good faith by the Owner Participant or (iii) a wrongful act by
the Owner Participant, the Lessee shall have no obligation to pay those costs
and expenses incurred directly by the Owner Participant in connection with the
transactions contemplated by this Agreement described in Sections 10.01(a)(i)
and (xi) hereof, but the Lessee shall be obligated to pay all other
Transaction Costs.
Section 3.05. Postponement of Delivery Date. (a) If the Owner
Participant shall for any reason fail or refuse to make the full amount of its
Commitment available on the Scheduled Delivery Date in accordance with the
terms of Section 3.02 hereof, the Owner Trustee will promptly give each party
confirmed facsimile notice thereof and the Lessee shall postpone the Delivery
Date for a period of not more than five (5) Business Days, but in no event
later than September 30, 1997 or December 31, 1997, as the case may be. If
the Owner Participant shall for any reason fail or refuse to make the full
amount of its Commitment available in accordance with the terms of Section
3.02 hereof on such postponed Delivery Date, (i) if the Owner Participant
fails to make available its Commitment in breach of its obligations under
this Agreement, the Lessee shall cause the Owner Participant to assign to
another equity investor identified by the Lessee its interest in the
Lessor's Estate pursuant to Section 7.03(d) hereof and (ii) if no such
equity investor is identified, or if such equity investor fails to close
such transactions, or if the Owner Participant fails to make available its
Commitment for any other reason than as specified in clause (i) above, the
Owner Participant's interest in the Lessor's Estate shall be automatically
conveyed to the Lessee without any further action, and the parties hereto
shall take such actions as may be advisable or necessary to give effect to
such conveyance. From and after any such conveyance, the Owner
Participant's obligations hereunder and under the other Operative
Agreements shall cease. The exception to the Lessee's indemnity set forth
in clause (viii) of Section 9.01(b) hereof shall not be applicable to any
such conveyance other than a conveyance pursuant to clause (i) above. For
the avoidance of doubt, it is understood and agreed that if for any reason
other than the failure of the Manufacturer or AVSA to deliver the Aircraft,
the Lessee does not enter into the Lease Supplement with the Owner Trustee
on or prior to the Cut-Off Date, the Indenture Trustee and the Pass Through
Trustee agree that the Lessee shall purchase the Aircraft and assume all of
the obligations of the Owner Trustee under the Certificates upon
satisfaction of the requirements set forth in Section 4.02 hereof, as the
same may be modified by the provisions of Section 7.11 hereof and as
otherwise necessary to reflect a full recourse secured aircraft financing
of the Lessee. If the Lessee has identified an equity investor under the
circumstances set forth in clause (i) above, the Owner Participant agrees
to assign its interest in the Lessor's Estate as provided in said clause
(i). In case of any such conveyance pursuant to said clause (i) (but
subject to the satisfaction of the conditions precedent specified herein),
the Indenture Trustee shall release the Debt Portion or such lesser amount
as may then be held in the Collateral Account for application to the
payments contemplated in the last sentence of Section 3.02(a) hereof,
subject to the proviso to Section 3.02(a) hereof.
(b) Release of Obligations. If the Delivery Date has not occurred
on or prior to the Cut-Off Date (i) in the case of the Indenture Trustee and
the Pass Through Trustee, as a result of a failure of the Manufacturer or AVSA
to deliver the Aircraft, or (ii) in the case of the Owner Participant, for any
reason, then, in such event, the Owner Trustee shall not purchase the Aircraft
from AVSA, and the parties to the Operative Agreements shall have no further
obligations or liabilities under any of said Operative Agreements with respect
to the Aircraft, including the obligation of the Owner Participant to
participate in the payment of the Purchase Price, and such documents shall
terminate and have no further force or effect with respect to the Aircraft;
provided, however, that the Lessee shall provide, no later than the Cut-Off
Date, notice of prepayment to the Indenture Trustee and the Certificates shall
be prepaid on the 15th day following the Cut-Off Date as provided in Section
6.02(a)(vi) of the Indenture and Section 17.02(c) hereof and provided further,
that (i) the Lessee's obligation to pay any Transaction Costs as provided in
Section 3.04 hereof (to the extent such section is applicable) and to
indemnify such parties to the extent provided in such documents, shall not be
diminished or modified in any respect and (ii) the obligations of the Owner
Trustee, the Indenture Trustee and the Lessee to return funds and pay
interest, costs, expenses and other amounts thereon or in respect thereof as
provided in Section 3.02 hereof shall continue.
(c) Optional Postponement. Without limiting the provisions of
Section 3.02(c) hereof, the Scheduled Delivery Date may be postponed from time
to time (but in no event shall the Delivery Date be later than the Cut-Off
Date) for any reason, other than pursuant to Section 3.05(a) hereof, if the
Lessee gives the Owner Participant, the Indenture Trustee, the Owner Trustee
and the Pass Through Trustee confirmed facsimile notice (or telephone notice
followed by written confirmation) of such postponement and notice of the date
to which the Delivery Date has been postponed, such notice of postponement to
be received by each party no later than 11:00 a.m. (New York City time) on the
Business Day preceding the Scheduled Delivery Date.
Section 3.06. Closing. The closing with respect to the purchase and
lease of the Aircraft on the Delivery Date shall take place at the offices of
Davis Polk & Wardwell, 450 Lexington Avenue, New York, New York 10017.
ARTICLE 4
CONDITIONS PRECEDENT
Section 4.01. Conditions Precedent (Certificate Closing Date). The
obligations of the Owner Trustee, the Owner Participant, the Indenture
Trustee, the Subordination Agent and the Pass Through Trustee on behalf of
each Pass Through Trust to participate in the transactions contemplated hereby
on the Certificate Closing Date are subject to the fulfillment to the
satisfaction of such party (or waiver by such party), prior to or on the
Certificate Closing Date, of the following conditions precedent (it being
understood that receipt by the Lessee of any of the following documents shall
not be a condition precedent to the obligations of any party):
(a) Certificates. (i) On the Certificate Closing Date, there shall
have been duly issued and delivered by the Owner Trustee to the
Subordination Agent on behalf of the Pass Through Trustee for each Pass
Through Trust, against payment therefor, a Certificate, substantially in
the form set forth in Exhibit B to the Indenture, duly authenticated, dated
the Certificate Closing Date and registered in the name of the
Subordination Agent, in the principal amounts, Series and Maturity, bearing
the interest rate and the other economic terms specified in the Series
Supplements and otherwise as provided in Section 2.04 of the Indenture.
The Pass Through Certificates shall be registered under the Securities Act,
any applicable state securities laws shall have been complied with, and the
Pass Through Agreement shall have been qualified under the Trust Indenture
Act, and (ii) on the Certificate Closing Date, the "Certificates" (as
defined in each of the Related Indentures) have been duly issued and
delivered by the "Owner Trustee" (as defined in each of the Related
Indentures) to the Subordination Agent on behalf of the Pass Through
Trustee for each Pass Through Trust.
(b) Legal Investment. On the Certificate Closing Date, no fact or
condition shall exist under applicable laws or regulations, or
interpretations of any such laws or regulations by applicable regulatory
authorities, which, in the opinion of the Owner Participant or its special
counsel, the Pass Through Trustee, the Subordination Agent or the Indenture
Trustee or their special counsel, would make it illegal for the Owner
Participant, the Lessee, the Owner Trustee, the Pass Through Trustee, the
Subordination Agent or the Indenture Trustee, and no change in
circumstances shall have occurred which would otherwise make it illegal or
otherwise in contravention of guidance issued by regulatory authorities for
the Owner Participant, the Lessee, the Owner Trustee, the Pass Through
Trustee, the Subordination Agent or the Indenture Trustee, to participate
in the transactions to be consummated on the Certificate Closing Date; and
no action or proceeding shall have been instituted nor shall governmental
action before any court, governmental authority or agency be threatened
which in the opinion of counsel for the Owner Participant, the Indenture
Trustee, the Subordination Agent or the Pass Through Trustee is not
frivolous, nor shall any order have been issued or proposed to be issued by
any court, or governmental authority or agency, as of the Certificate
Closing Date, to set aside, restrain, enjoin or prevent the consummation of
any of the transactions contemplated by this Agreement or by any of the
other Operative Agreements.
(c) Underwriters. The Underwriters shall have transferred the funds
specified in Section 2.01(a) hereof and all conditions thereunder shall
have been satisfied or waived.
(d) Documents. This Agreement and the following documents shall
have been duly authorized, executed and delivered by the respective
party or parties thereto, shall each be satisfactory in form and
substance to the Lessee, the Owner Trustee, the Indenture Trustee, the
Pass Through Trustee and the Owner Participant (each acting directly or
by authorization to its special counsel) and shall each be in full force
and effect; there shall not have occurred any default thereunder, or any
event which with the lapse of time or the giving of notice or both would
be a default thereunder, and copies executed or certified as requested
by the Lessee, the Owner Trustee, the Indenture Trustee, the Pass
Through Trustee, the Subordination Agent or the Owner Participant, as
the case may be, of such documents shall have been delivered to the
Owner Participant, the Lessee, the Indenture Trustee, the Pass Through
Trustee, the Subordination Agent and the Owner Trustee (provided that
the sole chattel-paper original of each of the Lease and each Ancillary
Agreement amendatory of the Lease, shall be delivered to the Indenture
Trustee):
(i) the Lease;
(ii) the Indenture;
(iii) in the case of the Owner Participant only, the Tax Indemnity
Agreement;
(iv) the Purchase Agreement and the Consent and Guaranty;
(v) the Purchase Agreement Assignment and the French Pledge
Agreement with respect thereto;
(vi) the GTA;
(vii) the Trust Agreement;
(viii) the Ancillary Agreement I;
(ix) the Ancillary Agreement II;
(x) the Owner Participant Guaranty;
(xi) the Intercreditor Agreement; and
(xii) the Liquidity Facility for each of the Pass Through Trusts for
the Series A Certificates and the Series B Certificates.
(e) Approvals. All approvals and consents of any trustees or
holders of any indebtedness or obligations of the Lessee, which in the
opinion of the Owner Participant, the Pass Through Trustee or the Indenture
Trustee are required in connection with any transaction contemplated by
this Agreement, shall have been duly obtained.
(f) Financing Statements. Uniform Commercial Code ("UCC") financing
statements covering all the security interests (and other interests)
intended to be created by or pursuant to the Granting Clause of the
Indenture shall have been executed and delivered by the Owner Trustee, as
debtor, and by the Indenture Trustee, as secured party, for and on behalf
of the Holders, and such financing statements shall have been duly filed or
duly submitted for filing in the State of Connecticut, and all other
actions shall have been taken which, in the opinion of the Owner
Participant, the Pass Through Trustee and the Underwriters, are necessary
to perfect and protect such security interests and other interests.
(g) Corporate Documents. Except when such Person is the delivering
party, the Owner Participant, the Owner Trustee, the Pass Through Trustee,
the Lessee and the Indenture Trustee (acting directly or by authorization
to its counsel) shall have received the following, in each case in form and
substance satisfactory to it:
(i) a copy of the certificate of incorporation and by-laws of the
Lessee, certified by the Secretary or an Assistant Secretary of the
Lessee as of the Certificate Closing Date, and a copy of the minutes
of the regular meeting of the board of directors of the Lessee,
certified as such as of the Certificate Closing Date by such
Secretary or Assistant Secretary, duly authorizing the lease by the
Lessee of the Aircraft under the Lease and the execution, delivery
and performance by the Lessee of this Agreement, the Lease, the Tax
Indemnity Agreement, the Pass Through Agreement, the Series
Supplements, the other Operative Agreements to which the Lessee is
or is to be a party and each other document to be executed and
delivered by the Lessee in connection with the transactions
contemplated hereby;
(ii) a copy of the articles of incorporation and bylaws of the
Owner Participant and the Owner Participant Guarantor, certified by
the Secretary or an Assistant Secretary of the Owner Participant or
the Owner Participant Guarantor as of the Certificate Closing Date,
and a copy of the resolutions of the board of directors of the Owner
Participant, certified as such as of the Certificate Closing Date by
such Secretary or an Assistant Secretary, authorizing the execution
and delivery by the Owner Participant of this Agreement, the Tax
Indemnity Agreement, the Trust Agreement and the other Operative
Agreements to which the Owner Participant is or is to be a party and
each other document to be executed and delivered by the Owner
Participant in connection with the transactions contemplated hereby,
and a copy of the resolutions of the board of directors of the Owner
Participant Guarantor, certified as such as of the Certificate
Closing Date by the Secretary or an Assistant Secretary, authorizing
the execution and delivery by the Owner Participant Guarantor of the
Owner Participant Guaranty and the other Operative Agreements to
which such Owner Participant Guarantor is or is to be a party and
each other document to be executed and delivered by the Owner
Participant Guarantor in connection with the transactions
contemplated hereby;
(iii) a copy of the articles of association and by-laws and other
instruments of the Owner Trustee, certified by the Secretary or an
Assistant Secretary of the Owner Trustee as of the Certificate
Closing Date (or other like instruments satisfactory to the Lessee
and the Owner Participant) and evidence authorizing the execution,
delivery and performance by the Owner Trustee in its individual
capacity or as Owner Trustee, as the case may be, of this Agreement,
the Trust Agreement and each of the other Operative Agreements to
which it is or is to be a party, whether in its individual capacity
or as Owner Trustee, and each other document to be executed and
delivered by the Owner Trustee in connection with the transactions
contemplated hereby;
(iv) a copy of the articles of association and by-laws and
other instruments of the Indenture Trustee, certified by the
Secretary or an Assistant Secretary of the Indenture Trustee as of
the Certificate Closing Date (or other like instruments
satisfactory to the Lessee and the Owner Participant) and evidence
authorizing the execution, delivery and performance by the
Indenture Trustee of each of this Agreement, the Indenture and
each of the other Operative Agreements to which it is or is to be
a party, and each other document to be executed and delivered by
the Indenture Trustee in connection with the transactions
contemplated hereby;
(v) a copy of the articles of association and by-laws and other
instruments of the Pass Through Trustee, certified by the Secretary
or an Assistant Secretary of the Pass Through Trustee as of the
Certificate Closing Date (or other like instruments satisfactory to
the Lessee and the Owner Participant) and evidence authorizing the
execution, delivery and performance by the Pass Through Trustee of
this Agreement, the Pass Through Agreement, the Series Supplements
and each of the other Operative Agreements to which it is or is to be
a party, and each other document to be executed and delivered by the
Pass Through Trustee in connection with the transactions contemplated
hereby;
(vi) a copy of the articles of association and by-laws and other
instruments of the Subordination Agent, certified by the Secretary or
an Assistant Secretary of the Subordination Agent as of the
Certificate Closing Date (or other like instruments satisfactory to
the Lessee and the Owner Participant) and evidence authorizing the
execution, delivery and performance by the Subordination Agent of
this Agreement, the Intercreditor Agreement and each of the other
Operative Agreements to which it is or is to be a party, and each
other document to be executed and delivered by the Subordination
Agent in connection with the transactions contemplated hereby; and
(vii) such other documents, evidences, materials, and information
with respect to the Lessee, the Owner Trustee, the Indenture Trustee,
the Pass Through Trustee and the Owner Participant as the Indenture
Trustee, the Pass Through Trustee or the Owner Participant may
reasonably request in order to establish the consummation of the
transactions contemplated by this Agreement.
(h) Officer's Certificate of Lessee. On the Certificate Closing
Date, the following statements shall be true, and the Owner Participant,
the Owner Trustee, the Pass Through Trustee and the Indenture Trustee shall
have received a certificate signed by the Vice President and Treasurer or
any other duly authorized officer of the Lessee, dated the Certificate
Closing Date, stating that:
(i) the representations and warranties of the Lessee contained in
the Operative Agreements to which it is a party (excluding the Tax
Indemnity Agreement) and in any certificate delivered pursuant hereto
or thereto are true and correct on and as of the Certificate Closing
Date as though made on and as of such date (except to the extent that
such representations and warranties relate solely to an earlier date,
in which case such certificate shall state that such representations
and warranties were true and correct on and as of such earlier date);
(ii) except for the matters described (i) under "Legal
Proceedings" in the Lessee's Annual Report on Form 10-K for the
fiscal year ended May 31, 1996 (as updated by Note 7 to the financial
statements included in the Lessee's Quarterly Reports on Form 10-Q
for the fiscal quarters ended August 31, 1996, November 30, 1996 and
February 28, 1997) and (ii) in the Lessee's Current Reports on Form
8-K dated June 7, 1996, August 16, 1996 and March 4, 1997, as to
which such officer will make no certification concerning the
liability of the Lessee (if any), or the effect of any adverse
determination upon the consolidated financial condition, business or
operations of the Lessee, no material adverse change has occurred in
the financial condition, business or operations of the Lessee from
that shown in the audited financial statements of the Lessee as of
May 31, 1996 and nothing has occurred which will, in the judgment of
such officer, materially adversely affect the ability of the Lessee
to carry on its business or to perform its obligations under this
Agreement and each other Operative Agreement to which it is or is to
be a party; and
(iii) no event has occurred and is continuing, or would result
from the purchase, sale, mortgage, or lease of the Aircraft, which
constitutes an Event of Loss (or event which with the passage of time
would become an Event of Loss) with respect to the Airframe or any
Engine, or a Default or an Event of Default under the Lease.
(i) Officer's Certificate of Owner Participant and Owner Participant
Guarantor. On the Certificate Closing Date, the following statements shall
be true, and the Lessee, the Pass Through Trustee, the Owner Trustee and
the Indenture Trustee shall have received a certificate from (i) the Owner
Participant, signed by a duly authorized officer of the Owner Participant
dated the Certificate Closing Date, stating that:
(i) the representations and warranties of the Owner Participant
contained in this Agreement, the Trust Agreement and any other
Operative Agreement to which it is a party (excluding the Tax
Indemnity Agreement) and in any certificate delivered pursuant hereto
or thereto, are true and correct on and as of the Certificate Closing
Date as though made on and as of such date (except to the extent that
such representations and warranties relate solely to an earlier date,
in which case such certificate shall state that such representations
and warranties were true and correct on and as of such earlier date);
(ii) no Lessor's Liens attributable to the Owner Participant
exist; and
(iii) no event has occurred and is continuing which constitutes
or, with notice or lapse of time or both would constitute, due to any
action or omission on the part of the Owner Participant, an Indenture
Event of Default other than an Indenture Event of Default
attributable to a Lease Event of Default.
and (ii) from the Owner Participant Guarantor, signed by a duly authorized
officer of such Owner Participant Guarantor dated the Certificate Closing
Date, stating that the representations and warranties of such Owner
Participant Guarantor contained in its Owner Participant Guaranty and in
any certificate delivered at the closing pursuant thereto are true and
correct on and as of the Certificate Closing Date as though made on and as
of such date (except to the extent that such representations and warranties
relate solely to an earlier date, in which case such certificate shall
state that such representations and warranties were true and correct on and
as of such earlier date).
(j) Other Officer's Certificates. On the Certificate Closing Date,
the following statements shall be true, and the Lessee, the Pass Through
Trustee, the Owner Trustee, the Subordination Agent and the Indenture
Trustee shall have received a certificate from each of SSB and the Owner
Trustee (in the case of the Lessee, the Pass Through Trustee, the
Subordination Agent and the Indenture Trustee), FSB and the Indenture
Trustee (in the case of the Lessee, the Pass Through Trustee, the
Subordination Agent and the Owner Trustee), FSB and the Pass Through
Trustee (in the case of the Lessee, the Indenture Trustee, the
Subordination Agent and the Owner Trustee) and FSB and the Subordination
Agent (in the case of the Lessee, the Pass Through Trustee, the Indenture
Trustee and the Owner Trustee), signed by a duly authorized officer of SSB
and FSB, respectively, dated the Certificate Closing Date, stating with
respect to SSB and the Owner Trustee, with respect to FSB and the Indenture
Trustee, with respect to FSB and the Pass Through Trustee or with respect
to FSB and the Subordination Agent, as the case may be, that:
(i) the representations and warranties of SSB in its individual
capacity and as Owner Trustee, of FSB in its individual capacity and
as Indenture Trustee, of FSB in its individual capacity and as Pass
Through Trustee or of FSB in its individual capacity and as
Subordination Agent contained in this Agreement, the Lease, the Trust
Agreement and the Indenture and in any certificate delivered pursuant
hereto or thereto are true and correct on and as of the Certificate
Closing Date as though made on and as of such date (except to the
extent that such representations and warranties relate solely to
an earlier date, in which case such certificate shall state that
such representations and warranties were true and correct on and
as of such earlier date);
(ii) to the best of its knowledge, no event has occurred and is
continuing, which constitutes or which, but for the lapse of time or
the giving of notice, or both, would constitute, due to any action or
omission on the part of SSB in its individual capacity or as Owner
Trustee, of FSB in its individual capacity or as Indenture Trustee,
of FSB in its individual capacity or as Pass Through Trustee, an
Event of Default or an Indenture Event of Default or of FSB in its
individual capacity or as Subordination Agent, an Event of Default or
an Indenture Event of Default; and
(iii) there are no Lessor's Liens attributable to the Owner
Trustee or SSB and no Indenture Trustee's Liens.
(k) Legal Opinions. The Owner Participant, the Underwriters, the
Lessee, the Owner Trustee, the Pass Through Trustee and the Indenture
Trustee (acting directly or by authorization to its special counsel) shall
have received from the following counsel their respective legal opinions in
each case satisfactory to the Owner Participant, the Underwriters, the
Lessee, the Owner Trustee, the Pass Through Trustee or the Indenture
Trustee, as the case may be, as to scope and substance (and covering such
other matters as the recipient may reasonably request) and dated the
Certificate Closing Date:
(i) George W. Hearn, Vice President - Law of the Lessee, in the
form of Exhibit A(1)(a)(i) hereto and addressed to the Underwriters,
the Owner Participant, the Owner Trustee, the Pass Through Trustee,
each Liquidity Provider and the Indenture Trustee;
(ii) Simpson Thacher & Bartlett, special counsel for the Owner
Participant and the Owner Participant Guarantor, in the form of
Exhibit A(2)(a) hereto and the General Counsel's Office of the Owner
Participant and the Owner Participant Guarantor, in the form of
Exhibit A(2)(b) hereto, each addressed to the Underwriters, the Owner
Participant, the Indenture Trustee, the Owner Trustee, the Pass
Through Trustee, each Liquidity Provider and the Lessee;
(iii) Ray, Quinney & Nebeker, special counsel for the Indenture
Trustee, in the form of Exhibit A(3) hereto and addressed to the
Underwriters, the Owner Participant, the Indenture Trustee, the Owner
Trustee, the Pass Through Trustee, each Liquidity Provider and the
Lessee;
(iv) Bingham, Dana & Gould LLP, special counsel for the Owner
Trustee, in the form of Exhibit A(4)(a)(i) hereto and addressed to
the Underwriters, the Owner Participant, the Indenture Trustee, the
Owner Trustee, the Pass Through Trustee, each Liquidity Provider and
the Lessee;
(v) Davis Polk & Wardwell, special counsel for the Lessee, in the
form of Exhibit A(1)(b)(i) hereto and addressed to the Underwriters,
the Owner Participant, the Indenture Trustee, the Owner Trustee, the
Pass Through Trustee, each Liquidity Provider and the Lessee;
(vi) Ray, Quinney & Nebeker, special counsel for the Pass Through
Trustee and the Subordination Agent, in the form of Exhibit A(5)
hereto and addressed to the Underwriters, the Owner Participant, the
Indenture Trustee, the Owner Trustee, the Pass Through Trustee, each
Liquidity Provider and the Lessee; and
(vii) Johan Tyteca, Esq., manager of the Legal Department of
Kredietbank N.V., in the form of Exhibit A(6)(a) hereto, and Milbank,
Tweed, Hadley & McCloy, special counsel for the Liquidity Providers,
in the form of Exhibit A(6)(b) hereto, each addressed to the Pass
Through Trustee, the Subordination Agent, each Liquidity Provider and
the Lessee.
(l) No Indenture Event of Default. No Indenture Event of Default or
Indenture Default has occurred and is continuing.
(m) Event of Default; Default; Event of Loss. No Default or Event
of Default under the Lease or Event of Loss or event, which with the
passage of time or if continued unremedied or unaltered would constitute an
Event of Loss, shall have occurred or be in existence.
(n) Other Agreements. The Lessee and the Pass Through Trustee
shall have entered into the Pass Through Agreement and the Series
Supplements, all conditions to the effectiveness of each thereof shall
have been satisfied or waived, and the Pass Through Certificates shall
have been issued pursuant to the Series Supplements. The Lessee and the
Underwriters shall have entered into the Underwriting Agreement, all
conditions to the effectiveness thereof shall have been satisfied or
waived, and the Pass Through Certificates shall have been delivered
pursuant to the Underwriting Agreement. All conditions to the
effectiveness of each Liquidity Facility shall have been satisfied or
waived.
(o) Payment of Taxes. (A) All taxes, fees, charges, assessments,
costs and other expenses then due and payable in connection with the
execution, delivery, recording and filing of all financing statements
referred to in subparagraph (f) of this Section 4.01, or in connection with
the issuance of the Certificates shall have been duly paid or caused to be
paid in full; and (B) all sales or use taxes and duties related to the
consummation of the transactions contemplated by the Operative Agreements
on the Certificate Closing Date which are then due and payable shall have
been duly paid in full.
(p) Governmental Compliance. All appropriate action required to
have been taken by the FAA, the SEC, or any governmental or political
agency, subdivision or instrumentality of the United States, prior to the
Certificate Closing Date in connection with the transactions contemplated
by this Agreement shall have been taken, and all orders, permits, waivers,
authorizations, exemptions and approvals (collectively "permits") of such
entities required to be in effect on the Certificate Closing Date in
connection with the transactions contemplated by this Agreement shall have
been issued, and all such permits shall be in full force and effect on the
Certificate Closing Date.
(q) Section 131.3 of the New York State Banking Law Filing. SSB
shall have delivered evidence of its filing made with the New York
Superintendent of Banking pursuant to Section 131.3 of the New York State
Banking Law.
Section 4.02. Conditions Precedent (Delivery Date). Subject to the
last paragraph of this Section 4.02, the obligations of the Owner Trustee, the
Owner Participant, the Indenture Trustee, the Subordination Agent and the Pass
Through Trustee on behalf of each Pass Through Trust to participate in the
transactions contemplated hereby on the Delivery Date are subject to the
fulfillment to the satisfaction of each party (or waiver by such party), prior
to or on the Delivery Date, of the following conditions precedent (it being
understood that receipt by the Lessee of any of the following documents shall
not be a condition precedent to the obligation of any party):
(a) Notice, Etc. Each party hereto shall have received a Delivery
Notice pursuant to Section 3.01 hereof at least three (3) Business Days
prior to the Delivery Date.
(b) Legal Investment. No change shall have occurred after the
Certificate Closing Date and on or prior to the Delivery Date in applicable
laws or regulations, or interpretations of any such laws or regulations by
applicable regulatory authorities, which, in the opinion of the Owner
Participant or its special counsel, the Pass Through Trustee, the
Subordination Agent or the Indenture Trustee or their special counsel,
would make it illegal for the Owner Participant, the Lessee, the Owner
Trustee, the Pass Through Trustee, the Subordination Agent or the Indenture
Trustee, and no change in circumstances shall have occurred which would
otherwise make it illegal or otherwise in contravention of guidance issued
by regulatory authorities for the Owner Participant, the Lessee, the Owner
Trustee, the Pass Through Trustee, the Subordination Agent or the Indenture
Trustee, to participate in the transactions to be consummated on the
Delivery Date; and no action or proceeding shall have been instituted nor
shall governmental action before any court, governmental authority or
agency be threatened which in the opinion of counsel for the Owner
Participant, the Indenture Trustee, the Subordination Agent or the Pass
Through Trustee is not frivolous, nor shall any order have been issued or
proposed to be issued by any court, or governmental authority or agency, as
of the Delivery Date, to set aside, restrain, enjoin or prevent the
consummation of any of the transactions contemplated by this Agreement or
by any of the other Operative Agreements.
(c) Documents. The documents referred to in Section 4.01(d) hereof
shall each be in full force and effect and the following documents shall
have been duly authorized, executed and delivered by the respective party
or parties thereto, shall each be satisfactory in form and substance to the
Lessee, the Owner Trustee, the Indenture Trustee, the Pass Through Trustee,
the Subordination Agent and the Owner Participant (each acting directly or
by authorization to its special counsel) and shall each be in full force
and effect; there shall not have occurred any default thereunder, or any
event which with the lapse of time or the giving of notice or both would be
a default thereunder, and copies executed or certified as requested by the
Lessee, the Owner Trustee, the Indenture Trustee, the Pass Through Trustee
or the Owner Participant, as the case may be, of such documents shall have
been delivered to the Owner Participant, the Lessee, the Indenture Trustee,
the Pass Through Trustee and the Owner Trustee (provided that the sole
chattel-paper original of the Lease Supplement shall be delivered to the
Indenture Trustee):
(i) the Lease Supplement covering the Aircraft, dated the Delivery
Date;
(ii) an Indenture and Security Agreement Supplement covering the
Aircraft, dated the Delivery Date;
(iii) the Invoice;
(iv) AVSA's FAA Bill of Sale, AVSA's Warranty Bill of Sale and the
Airbus Guaranty;
(v) the Consent and Agreement and the AVSA Consent and Agreement;
and
(vi) the Engine Warranty Assignment and the Engine Consent.
(d) Legal Opinions. The Owner Participant, the Underwriters, the
Lessee, the Owner Trustee, the Pass Through Trustee and the Indenture
Trustee (acting directly or by authorization to its special counsel) shall
have received from the following counsel their respective legal opinions in
each case satisfactory to the Owner Participant, the Underwriters, the
Lessee, the Owner Trustee, the Pass Through Trustee or the Indenture
Trustee, as the case may be, as to scope and substance (and covering such
other matters as the recipient may reasonably request) and dated the
Delivery Date:
(i) George W. Hearn, Vice President - Law of the Lessee, in the
form of Exhibit A(1)(a)(ii) hereto and addressed to the Underwriters,
the Owner Participant, the Owner Trustee, the Pass Through Trustee,
each Liquidity Provider and the Indenture Trustee;
(ii) Davis Polk & Wardwell, special counsel for the Lessee, in the
form of Exhibit A(1)(b)(ii) hereto and addressed to the Underwriters,
the Owner Participant, the Indenture Trustee, the Owner Trustee, the
Pass Through Trustee, each Liquidity Provider and the Lessee;
(iii) Bingham, Dana & Gould LLP, special counsel for the Owner
Trustee, in the form of Exhibit A(4)(a)(ii) hereto and addressed to
the Underwriters, the Owner Participant, the Indenture Trustee, the
Owner Trustee, the Pass Through Trustee, each Liquidity Provider and
the Lessee;
(iv) counsel for the Engine Manufacturer, in the form of Exhibit
A(7) hereto and addressed to the Underwriters, the Owner Participant,
the Indenture Trustee, the Owner Trustee, the Pass Through Trustee,
each Liquidity Provider and the Lessee;
(v) Clifford Chance, special counsel for AVSA and the
Manufacturer, in the form of Exhibit A(8) hereto and addressed to the
Underwriters, the Owner Participant, the Indenture Trustee, the Owner
Trustee, the Pass Through Trustee, each Liquidity Provider and the
Lessee;
(vi) Daugherty, Fowler & Peregrin, special aviation counsel, in
the form of Exhibit A(9) hereto and addressed to the Underwriters,
the Owner Participant, the Indenture Trustee, the Owner Trustee, the
Pass Through Trustee, each Liquidity Provider and the Lessee; and
(vii) in the case of the Owner Participant only, Simpson
Thacher & Bartlett, tax counsel to the Owner Participant,
addressed to the Owner Participant, with respect to certain tax
matters.
(e) Title, Airworthiness and Registration. On the Delivery Date,
the following statements shall be true, and the Owner Participant, the
Indenture Trustee, the Pass Through Trustee and the Owner Trustee shall
have received evidence from the Lessee reasonably satisfactory to the
Owner Participant, the Indenture Trustee, the Pass Through Trustee and
the Owner Trustee to the effect that:
(i) the Owner Trustee has good and marketable title (subject to
filing and recording of AVSA's FAA Bill of Sale with the Aeronautics
Authority) to the Aircraft, free and clear of Liens, except the
rights of the Owner Trustee and the Lessee under the Lease and the
Lease Supplement covering the Aircraft, the rights of the Indenture
Trustee under the Indenture and the beneficial interest of the Owner
Participant created by the Trust Agreement and the interest of the
Certificate Holders created by the Indenture and the Indenture and
Security Agreement Supplement covering the Aircraft, which evidence
shall include AVSA's FAA Bill of Sale, AVSA's Warranty Bill of Sale
and the Airbus Guaranty;
(ii) the Aircraft has been duly certificated by the Aeronautics
Authority as to type and airworthiness in accordance with the terms
of the Operative Agreements;
(iii) AVSA's FAA Bill of Sale, the Lease and Lease Supplement
covering the Aircraft, the Indenture and the Indenture and Security
Agreement Supplement covering the Aircraft and the Trust Agreement
shall have been duly filed for recordation (or shall be in the
process of being so duly filed for recordation) with the Aeronautics
Authority pursuant to the Transportation Code; and
(iv) application to the Aeronautics Authority for registration of
the Aircraft in the name of the Owner Trustee shall have been duly
made and the Lessee shall have temporary or permanent authority to
operate the Aircraft.
(f) Financing Statements. A UCC notice filing describing the Lease
as a lease shall have been executed and delivered by the Owner Trustee, as
lessor, and the Lessee, as lessee (which filing shall name the Indenture
Trustee as assignee of the Owner Trustee) and shall have been duly filed in
the State of Tennessee.
(g) Payments. The Owner Participant shall have made available its
Commitment to the Owner Trustee and the other payments contemplated by
Section 3.02 hereof shall have been made.
(h) Report of Aircraft Expert. The Owner Participant shall have
received a report prepared by BK Associates, Inc. addressed to the Owner
Participant (with an abbreviated report to the Lessee) which report shall
be in form and substance satisfactory to the Owner Participant to the
effect, among other things, that on the Delivery Date:
(i) (A) the estimated fair market value of the Aircraft net of
any cost to the Owner Participant or the Owner Trustee of return at
the end of the Basic Term and any Fixed Renewal Term (determined
without including in such value any increase or decrease for
inflation or deflation during the Term) is equal to or greater than
20% of the Purchase Price for the Aircraft and (B) at least 20% of
the useful economic life of the Aircraft will be remaining at the end
of the Basic Term and any Fixed Renewal Term;
(ii) the estimated useful life of the Aircraft is at least 133% of
the Basic Term and any Fixed Renewal Term;
(iii) the Purchase Price of the Aircraft is no greater than the
fair market value of the Aircraft on the Delivery Date;
(iv) on the Delivery Date, the Aircraft will not require any
modifications, improvements or additions in order to be rendered
complete for its intended purpose by the Lessee;
(v) the amount payable by the Lessee upon the exercise of its
purchase option pursuant to Section 4.02(a)(F) of the Lease equals or
exceeds the currently estimated Fair Market Value of the Aircraft on
such date (taking into account inflation or deflation to such date);
and
(vi) the Aircraft is not limited use property.
(i) Insurance. Each of the Indenture Trustee, the Pass Through
Trustee, the Owner Trustee and the Owner Participant shall have received
such evidence as it deems appropriate, including, without limitation, an
independent insurance broker's report, together with certificates of
insurance from such broker, in form and substance satisfactory to the
Indenture Trustee, the Pass Through Trustee, the Owner Trustee and the
Owner Participant to establish that the insurance required by Article 13 of
the Lease is in effect.
(j) Payment of Taxes. (A) All taxes, fees, charges, assessments,
costs and other expenses then due and payable in connection with the
execution, delivery, recording and filing of all financing statements and
the documents and instruments referred to in subparagraphs (e) and (f) of
this Section 4.02, or in connection with the purchase of the Aircraft by
the Owner Trustee and the making by the Owner Participant of its equity
investment shall have been duly paid or caused to be paid in full; and (B)
all sales or use taxes and duties related to the consummation of the
transactions contemplated by the Operative Agreements on the Delivery Date
which are then due and payable shall have been duly paid in full.
(k) No Indenture Event of Default. No Indenture Event of Default or
Indenture Default has occurred and is continuing.
(l) Event of Default; Default; Event of Loss. No Default or Event
of Default under the Lease (assuming, for this purpose, that the provisions
of Article 16 of the Lease had become operative on the Certificate Closing
Date and not the Delivery Date) or Event of Loss or event, which with the
passage of time or if continued unremedied or unaltered would constitute an
Event of Loss, shall have occurred or be in existence.
(m) Governmental Compliance. All appropriate action required to
have been taken by the FAA, the SEC, or any governmental or political
agency, subdivision or instrumentality of the United States, prior to the
Delivery Date in connection with the transactions contemplated by this
Agreement shall have been taken, and all orders, permits, waivers,
authorizations, exemptions and approvals (collectively "permits") of such
entities required to be in effect on the Delivery Date in connection with
the transactions contemplated by this Agreement shall have been issued, and
all such permits shall be in full force and effect on the Delivery Date.
(n) Officer's Certificate of Lessee. On the Delivery Date, the
following statements shall be true, and the Owner Participant, the Owner
Trustee, the Pass Through Trustee and the Indenture Trustee shall have
received a certificate signed by the Vice President and Treasurer or any
other duly authorized officer of the Lessee, dated the Delivery Date,
stating that:
(i) the representations and warranties of the Lessee contained in
the Operative Agreements to which it is a party (excluding the Tax
Indemnity Agreement) and in any certificate delivered pursuant hereto
or thereto are true and correct on and as of the Delivery Date as
though made on and as of such date (except to the extent that such
representations and warranties relate solely to an earlier date, in
which case such certificate shall state that such representations and
warranties were true and correct on and as of such earlier date);
(ii) except for the matters described (i) under "Legal
Proceedings" in the Lessee's Annual Report on Form 10-K for the
fiscal year ended May 31, 1996 (as updated by Note 7 to the financial
statements included in the Lessee's Quarterly Reports on Form 10-Q
for the fiscal quarters ended August 31, 1996, November 30, 1996 and
February 28, 1997) and (ii) in the Lessee's Current Reports on Form
8-K dated June 7, 1996, August 16, 1996 and March 4, 1997, as to
which such officer will make no certification concerning the
liability of the Lessee (if any), or the effect of any adverse
determination upon the consolidated financial condition, business or
operations of the Lessee, no material adverse change has occurred in
the financial condition, business or operations of the Lessee from
that shown in the audited financial statements of the Lessee as of
May 31, 1996 and nothing has occurred which will, in the judgment of
such officer, materially adversely affect the ability of the Lessee
to carry on its business or to perform its obligations under this
Agreement and each other Operative Agreement to which it is or is to
be a party; and
(iii) no event has occurred and is continuing, or would result
from the purchase, sale, mortgage, or lease of the Aircraft, which
constitutes an Event of Loss (or event which with the passage of time
would become an Event of Loss) with respect to the Airframe or any
Engine, or a Default or an Event of Default under the Lease.
(o) Officer's Certificate of Owner Participant and Owner Participant
Guarantor. On the Delivery Date, the following statements shall be true,
and the Lessee, the Pass Through Trustee, the Owner Trustee and the
Indenture Trustee shall have received a certificate from the Owner
Participant, signed by a duly authorized officer of (i) the Owner
Participant dated the Delivery Date, stating that:
(i) the representations and warranties of the Owner Participant
contained in this Agreement, the Trust Agreement and any other
Operative Agreement (excluding the Tax Indemnity Agreement) to which
it is a party and in any certificate delivered pursuant hereto or
thereto, are true and correct on and as of the Delivery Date as
though made on and as of such date (except to the extent that such
representations and warranties relate solely to an earlier date, in
which case such certificate shall state that such representations and
warranties were true and correct on and as of such earlier date);
(ii) no Lessor's Liens attributable to the Owner Participant
exist; and
(iii) no event has occurred and is continuing which constitutes
or, with notice or lapse of time or both would constitute, due to any
action or omission on the part of the Owner Participant, an Indenture
Event of Default other than an Indenture Event of Default
attributable to a Lease Event of Default.
and (ii) from the Owner Participant Guarantor, signed by a duly authorized
officer of such Owner Participant Guarantor dated the Certificate Closing
Date, stating that the representations and warranties of such Owner
Participant Guarantor contained in its Owner Participant Guaranty and in
any certificate delivered at the closing pursuant thereto are true and
correct on and as of the Certificate Closing Date as though made on and as
of such date (except to the extent that such representations and warranties
relate solely to an earlier date, in which case such certificate shall
state that such representations and warranties were true and correct on and
as of such earlier date).
(p) Other Officer's Certificates. On the Delivery Date, the
following statements shall be true, and the Owner Participant, the Lessee,
the Pass Through Trustee, the Owner Trustee, the Subordination Agent and
the Indenture Trustee shall have received a certificate from each of SSB
and the Owner Trustee (in the case of the Lessee, the Pass Through Trustee,
the Owner Participant, the Subordination Agent and the Indenture Trustee),
FSB and the Indenture Trustee (in the case of the Lessee, the Pass Through
Trustee, the Owner Participant, the Subordination Agent and the Owner
Trustee), FSB and the Pass Through Trustee (in the case of the Lessee, the
Indenture Trustee, the Owner Participant, the Subordination Agent and the
Owner Trustee) and FSB and the Subordination Agent (in the case of the
Lessee, the Indenture Trustee, the Owner Participant, the Pass Through
Trustee and the Owner Trustee) signed by a duly authorized officer of SSB
and FSB, respectively, dated the Delivery Date, stating with respect to SSB
and the Owner Trustee, with respect to FSB and the Indenture Trustee, with
respect to FSB and the Pass Through Trustee or with respect to FSB and the
Subordination Agent, as the case may be, that:
(i) the representations and warranties of SSB in its individual
capacity and as Owner Trustee, of FSB in its individual capacity and
as Indenture Trustee, of FSB in its individual capacity and as Pass
Through Trustee or of FSB in its individual capacity and as
Subordination Agent contained in this Agreement, the Lease, the Trust
Agreement and the Indenture and in any certificate delivered pursuant
hereto or thereto are true and correct on and as of the Delivery Date
as though made on and as of such date (except to the extent that such
representations and warranties relate solely to an earlier date, in
which case such certificate shall state that such representations and
warranties were true and correct on and as of such earlier date);
(ii) to the best of its knowledge, no event has occurred and is
continuing, which constitutes or which, but for the lapse of time or
the giving of notice, or both, would constitute, due to any action or
omission on the part of SSB in its individual capacity or as Owner
Trustee, of FSB in its individual capacity or as Indenture Trustee,
of FSB in its individual capacity or as Pass Through Trustee, an
Event of Default or an Indenture Event of Default or of FSB in its
individual capacity or as Subordination Agent, an Event of Default or
an Indenture Event of Default; and
(iii) there are no Lessor's Liens attributable to the Owner
Trustee or SSB and no Indenture Trustee's Liens affecting the Trust
Indenture Estate or the Lessor's Estate or any part thereof.
(q) Release of Debt Portion. The Indenture Trustee shall have
released the Debt Portion from (or such lesser amount as may then be held
in) the Collateral Account or if the proviso to Section 3.02(a) is
applicable, then the Lessee shall have made the payment required to be made
to AVSA pursuant to such proviso.
Notwithstanding anything else to the contrary in this Section 4.02, it shall
not be a condition precedent to the obligations of the Indenture Trustee, the
Pass Through Trustee or the Subordination Agent that the conditions in Section
4.02(n) and (o) be satisfied if the Lessee certifies that the failure to
fulfill such condition precedent is not reasonably likely to materially
adversely affect the holders of Pass Through Certificates and, in the event of
such failure, there has been delivered to the Indenture Trustee written
confirmation from both Moody's and S&P of the rating on any class of Pass
Through Certificates.
Section 4.03. Opinion of Special Aviation Counsel Upon Registration.
Promptly upon the registration of the Aircraft and the filing and, where
appropriate, recordation pursuant to the Transportation Code, of AVSA's FAA
Bill of Sale, the Trust Agreement, the Lease (with the Lease Supplement
covering the Aircraft, the Indenture and the Indenture and Security Agreement
Supplement covering the Aircraft attached as exhibits) and the Indenture (with
the Indenture and Security Agreement Supplement covering the Aircraft attached
as an exhibit), the Lessee shall cause Special Aviation Counsel to deliver to
the Owner Participant, the Lessee, the Owner Trustee, the Pass Through Trustee
and the Indenture Trustee an opinion as to (i) the due registration of the
Aircraft in the name of the Owner Trustee, (ii) the due recording pursuant to
the Transportation Code of AVSA's FAA Bill of Sale, the Trust Agreement, the
Lease (with such Lease Supplement, the Indenture and such Indenture and
Security Agreement Supplement attached as exhibits), and the Indenture (with
such Indenture and Security Agreement Supplement attached as an exhibit), and
(iii), subject to customary qualifications, the lack of any intervening
documents with respect to the Aircraft.
ARTICLE 5
CONDITIONS PRECEDENT TO LESSEE'S OBLIGATIONS
Section 5.01. Conditions Precedent to Lessee's Obligations. The
Lessee's obligation to participate in the transactions contemplated hereby on
the Certificate Closing Date is subject to the conditions that, prior to or on
the Certificate Closing Date, the Lessee shall have received the certificates
and other documents which are referred to in, or the opinions to be addressed
to it under, as the case may be, paragraphs (d), (g)(ii)-(v), (i), (j),
(k)(ii)-(vi) of Section 4.01 hereof and the Underwriters shall have made
available the amounts required to be paid by them pursuant to Section 2.01
hereof, and the Lessee's obligation to participate in the transactions
contemplated hereby on the Delivery Date, is subject to the conditions that,
on or prior to the Delivery Date, the Lessee shall have received the documents
which are referred to in, or the opinions to be addressed to it under, as the
case may be, paragraphs (c) and (d)(ii)-(v) of Section 4.02 hereof and the
Indenture Trustee shall have released the Debt Portion from (or such lesser
amount as may then be held in) the Collateral Account.
ARTICLE 6
LESSEE'S REPRESENTATIONS, WARRANTIES AND COVENANTS
Section 6.01. Lessee's Representations and Warranties. The Lessee
represents and warrants to the Owner Participant, the Owner Trustee (in its
individual capacity and as Owner Trustee), the Pass Through Trustee (in its
individual capacity and as Pass Through Trustee), each Liquidity Provider and
the Indenture Trustee (in its individual capacity and as Indenture Trustee)
that, on the date hereof and as of the Certificate Closing Date and the
Delivery Date (unless any such representation is specifically made as of one
date):
(a) the Lessee is a corporation duly organized and validly existing
and is in good standing under the laws of the State of Delaware with its
principal place of business and chief executive office (as such terms are
used in Article 9 of the Uniform Commercial Code) in Memphis, Tennessee,
and is duly qualified to do business as a foreign corporation and is in
good standing in all jurisdictions in which it has intrastate routes, or
offices or major overhaul facilities or in which other activities of the
Lessee require such qualification;
(b) the Lessee has full power, authority and legal right to conduct
its business and operations as currently conducted and to own or hold under
lease its Properties and to enter into and perform its obligations under
this Agreement, the other Operative Agreements to which it is a party, the
Pass Through Agreement and the Series Supplements (the "Lessee Documents");
(c) the Lessee is an "air carrier" within the meaning of the
Transportation Code and a holder of a certificate under Sections 41102(a)
and 41103 of the Transportation Code and a "citizen of the United States"
within the meaning of Section 40102(a)(15) of the Transportation Code
holding an "air carrier operating certificate" issued under Chapter 447 of
the Transportation Code for aircraft capable of carrying ten (10) or more
individuals or 6,000 pounds or more of cargo, and each such certificate is
in full force and effect;
(d) the Lessee possesses all necessary certificates, franchises,
licenses, permits, rights and concessions and consents (collectively
"permits") which are material to the operation of the routes flown by it
and the conduct of its business and operations as currently conducted and
each such permit is in full force and effect;
(e) the execution, delivery and performance of the Lessee Documents
by the Lessee have been duly authorized by all necessary corporate action
on the part of the Lessee and do not require any stockholder approval, or
approval or consent of any trustee or holder of any indebtedness or
obligations of the Lessee, and each such document has been duly executed
and delivered or, in the case of the Operative Agreements identified in
Section 4.02(c) hereof, will on the Delivery Date be executed and delivered
by the Lessee and constitutes (or will constitute, as the case may be) the
legal, valid and binding obligations of the Lessee enforceable against it
in accordance with the terms thereof except as such enforceability may be
limited by bankruptcy, insolvency, moratorium, reorganization or other
similar laws or equitable principles of general application to or affecting
the enforcement of creditors' rights generally (regardless of whether
enforceability is considered in a proceeding in equity or at law);
(f) no authorization, consent or approval of or other action by, and
no notice to or filing with, any United States federal or state
governmental authority or regulatory body (other than the SEC) is required
for the execution, delivery or performance by the Lessee of the Lessee
Documents or for the use and maintenance of the Aircraft except for such
registrations, applications and recordings referred to in the opinions of
Special Aviation Counsel delivered or to be delivered pursuant to Sections
4.02(d)(iii) and 4.03 hereof and except for the filings referred to in
Sections 4.01(f) and 4.02(f) hereof, all of which shall have been duly
obtained or made and shall be in full force and effect on and as of the
Certificate Closing Date or the Delivery Date, or as contemplated by said
Sections;
(g) neither the execution, delivery or performance by the Lessee of
the Lessee Documents nor compliance with the terms and provisions hereof or
thereof, conflicts or will conflict with or results or will result in a
breach or violation of any of the terms, conditions or provisions of, or
will require any consent (other than the Consent and Agreement, the AVSA
Consent and Agreement, the Engine Consent and the Consent and Guaranty) or
approval under, any law, governmental rule or regulation or the charter
documents, as amended, or bylaws, as amended, of the Lessee or any order,
writ, injunction or decree of any court or governmental authority against
the Lessee or by which it or any of its Properties is bound or any
indenture, mortgage or contract or other agreement or instrument to which
the Lessee is a party or by which it or any of its Properties is bound, or
constitutes or will constitute a default thereunder or results or will
result in the imposition of any Lien upon any of its Properties;
(h) there are no pending or, to the knowledge of the Lessee,
threatened actions, suits, investigations or proceedings (whether or not
purportedly on behalf of the Lessee) against or affecting the Lessee or any
of its Property before or by any court or administrative agency which (A)
involve the Aircraft, (B) except for the matters described (i) under "Legal
Proceedings" in the Lessee's Annual Report on Form 10-K for the fiscal year
ended May 31, 1996 (as updated by Note 7 to the financial statements
included in the Lessee's Quarterly Reports on Form 10-Q for the fiscal
quarters ended August 31, 1996, November 30, 1996 and February 28, 1997)
and (ii) in the Lessee's Current Reports on Form 8-K dated June 7, 1996,
August 16, 1996 and March 4, 1997, as to which no representation is made
concerning the Lessee's liability (if any) or the effect of any adverse
determination upon the consolidated financial condition, business or
operations of the Lessee, if adversely determined, would materially and
adversely affect the consolidated financial condition, business or
operations of the Lessee, or (C) if adversely determined would adversely
affect the ability of the Lessee to perform its obligations under the
Lessee Documents;
(i) the Lessee has filed or caused to be filed all tax returns which
are required to be filed and has paid or caused to be paid all taxes shown
to be due and payable pursuant to such returns or pursuant to any
assessment received by the Lessee (other than assessments the payment of
which is being contested in good faith by the Lessee by appropriate
proceedings that do not involve any material danger of sale, forfeiture or
loss of the Aircraft or any part thereof), and the Lessee has no knowledge
of any related actual or proposed deficiency or additional assessment which
either in any case or in the aggregate would materially adversely affect
the Lessee's consolidated financial condition (other than, in any such case,
assessments, the payment of which is being contested in good faith by the
Lessee, as to which no representation is made concerning the Lessee's
liability (if any) or the effect of any adverse determination upon the
Lessee's consolidated financial condition);
(j) except for (A) the registration in the Owner Trustee's name of
the Aircraft pursuant to the Transportation Code to be accomplished by
filing with the FAA, of AVSA's FAA Bill of Sale, the Trust Agreement, the
Affidavits and the Application, (B) the filing with and, where appropriate,
recordation by the FAA pursuant to the Transportation Code of the
Indenture, the Indenture and Security Agreement Supplement covering the
Aircraft, the Lease and the Lease Supplement covering the Aircraft, (C) the
filing of the financing statements referred to in Sections 4.01(f) and
4.02(f) hereof and (D)(x) on the Certificate Closing Date, the taking of
possession by the Indenture Trustee of the Liquid Collateral and
maintaining possession by the Indenture Trustee thereof as contemplated in
Section 2.14(a) of the Indenture and (y) on the Delivery Date, the taking
of possession by the Indenture Trustee of the original counterpart of the
Lease and the Lease Supplement covering the Aircraft, no further action,
including any filing or recording of any document, is necessary or
advisable in order (i) to establish the Owner Trustee's title to and
interest in the Aircraft and the Lessor's Estate as against the Lessee and
any third parties, or (ii) to perfect the first security interest in and
mortgage Lien on the Trust Indenture Estate in favor of the Indenture
Trustee;
(k) on the Delivery Date, the Owner Trustee has received good and
marketable title to the Aircraft, free and clear of all Liens, except the
rights of the Lessee under the Lease and the Lease Supplement, the rights
of the Indenture Trustee under the Indenture and the beneficial interest of
the Owner Participant created by the Trust Agreement;
(l) the Lessee has heretofore delivered to the Owner Participant
true and correct copies of the Lessee's Annual Report on Form 10-K for the
fiscal year ended May 31, 1996 and its Quarterly Reports on Form 10-Q for
the fiscal quarters ended August 31, 1996, November 30, 1996 and February
28, 1997, and of the audited consolidated balance sheet of the Lessee for
the fiscal year ended May 31, 1996 and the unaudited consolidated balance
sheets of the Lessee as of August 31, 1996, November 30, 1996 and February
28, 1997, and the related consolidated statements of income, changes in
common stockholders' investment and cash flows for the fiscal year and
interim reporting periods ended on such dates, accompanied (except in the
case of such interim reporting periods) by a report thereon containing
opinions without qualification, except as therein noted, by Arthur Andersen
LLP, independent public accountants; said financial statements have been
prepared in accordance with generally accepted accounting principles
consistently applied and present fairly the financial position of the
Lessee as of such dates and the results of its operations and cash flows
for such periods and such Annual Report, Quarterly Reports and financial
statements did not, as of their respective dates of filing with the SEC,
contain any untrue statement of a material fact or omit a material fact
necessary to make the statements contained therein not misleading;
(m) with respect to ERISA:
(i) none of the Pension Plans (as defined at the end of this
Section 6.01(m)) nor their related trusts have been terminated in a
distress termination pursuant to Section 4041(c) of ERISA or by the
Pension Benefit Guaranty Corporation (together with any successor
agency or instrumentality thereto, the "PBGC") pursuant to Section
4042 of ERISA, nor have any actions been taken to so terminate any
Pension Plan or related trust and neither the Lessee nor any ERISA
Affiliate (as defined at the end of this Section 6.01(m)) has
incurred or could reasonably be expected to incur any material
liability with respect to a Pension Plan under Section 4062, 4063,
4064 or 4069 of ERISA;
(ii) there have been no "reportable events" (as such term is
defined in Section 4043(b) of ERISA) with respect to any Pension Plan
which have resulted or could reasonably be expected to result in any
material liability of the Lessee or any ERISA Affiliate;
(iii) no "accumulated funding deficiency" (as such term is defined
in Section 302 of ERISA or Section 412 of the Code) exists with
respect to any Pension Plan, whether or not waived, nor has any
request for a waiver under Section 412(d) of the Code been, or is
reasonably likely to be, filed with respect to any of the Pension
Plans;
(iv) neither the Lessee nor any ERISA Affiliate has failed to make
any contribution or payment to any Pension Plan which has resulted or
could reasonably be expected to result in the imposition of a Lien
under Section 302(f) of ERISA or Section 412(n) of the Code;
(v) all Pension Plans are in compliance in all material respects
with all applicable provisions of ERISA and the Code;
(vi) neither the Lessee nor any ERISA Affiliate has incurred or is
reasonably likely to incur any material withdrawal liability pursuant
to Section 4201 or 4204 of ERISA or any material liability under
Section 515 of ERISA;
(vii) to the best of the Lessee's knowledge, neither the Lessee
nor any ERISA Affiliate has engaged in a "prohibited transaction"
(within the meaning of Section 4975 of the Code or Section 406 of
ERISA) which could reasonably be expected to subject the Lessee to
the tax or penalties on prohibited transactions imposed by Section
4975 of the Code or Section 502 of ERISA; and
(viii) assuming the truth of the representations contained in
Section 7.09 hereof and compliance with Section 10.06 of the
Indenture, the execution and delivery of this Agreement and the other
Operative Agreements and the consummation of the transactions
contemplated hereby and thereby will not involve any transaction
which is prohibited by Section 406 of ERISA or in connection with
which a tax could be imposed pursuant to Section 4975 of the Code.
No part of the funds to be used by the Lessee in satisfaction of its
obligations under this Agreement or any other of the Operative
Agreements to which the Lessee is a party or to which the Lessee is
bound are the assets of any employee benefit plan subject to Title I
of ERISA, or any individual retirement account or an employee benefit
plan subject to Section 4975 of the Code;
as used in this Section 6.01(m), the term "Pension Plan" means an employee
pension benefit plan as defined in Section 3(2) of ERISA (other than a
multiemployer plan as defined in Section 4001(a)(3) of ERISA) which is
covered by Title IV of ERISA or subject to the minimum funding standards
under Section 412 of the Code and which is maintained, or contributed to,
by the Lessee or any ERISA Affiliate, and the term "ERISA Affiliate" means
any entity which together with the Lessee would be treated as a single
employer under Section 414(b), (c), (m) or (o) of the Code;
(n) the Lessee is a Citizen of the United States;
(o) except for the filings referred to in Sections 4.01(f), 4.02(e)
and 4.02(f) hereof, no governmental approval of any kind is required of the
Owner Participant or for the Owner Participant's execution of or
performance under this Agreement or any agreement contemplated hereby by
reason of any fact or circumstance of the Lessee, the nature of the
Aircraft or the Lessee's proposed operations or use of the Aircraft;
(p) on the Delivery Date, all premiums with respect to the insurance
required to be provided by the Lessee on or prior to the Delivery Date
under Article 13 of the Lease have been paid by the Lessee;
(q) on the Delivery Date, all sales or use taxes relating to the
sale of the Aircraft by AVSA to the Owner Trustee which are then or were
theretofore due shall have been paid;
(r) the Lessee is not in default under any mortgage, deed of trust,
indenture, lease or other instrument or agreement to which the Lessee is a
party or by which it or any of its Properties or assets may be bound, or in
violation of any applicable law, which default or violation would have a
material adverse effect on the financial condition, business or operations
of the Lessee or its ability to perform any of its obligations under the
Lessee Documents;
(s) no Default or Event of Default or Event of Loss or event, which
with the passage of time or if continued unremedied or unaltered would
constitute an Event of Loss, has occurred or exists;
(t) on the Delivery Date, the Aircraft will be in such condition so
as to enable the airworthiness certificate of such Aircraft to be in good
standing under the Transportation Code; the Aircraft will have been duly
certificated by the FAA as to type and airworthiness; there will be in
effect with respect to the Aircraft a current and valid airworthiness
certificate issued by the FAA pursuant to the Transportation Code; and
there is no fact known to the Lessee which materially adversely affects the
value, utility or condition of the Aircraft;
(u) on the Certificate Closing Date and the Delivery Date, the
Lessee shall not be in default in the performance of any term or condition
of the Purchase Agreement, the Purchase Agreement Assignment, the Engine
Warranty Assignment and the GTA and the aggregate amount of loans shall not
exceed the Debt Portion;
(v) neither the Lessee nor any subsidiary of the Lessee is an
"investment company" or a company "controlled by an investment company"
within the meaning of the Investment Company Act of 1940, as amended;
(w) on the Delivery Date, the Aircraft will, upon delivery, be fully
equipped to operate in commercial service and will comply with all
governmental requirements governing such service; and
(x) there are no broker's or underwriter's fees payable on behalf
of the Lessee in connection with the transactions contemplated in the
Operative Agreements other than those of the Underwriters and First
Chicago Leasing Corporation referred to in Article 10 hereof.
Section 6.02. Offering by Lessee. The Lessee represents and
warrants that it has authorized no one to act on its behalf in connection with
the offer or sale of any interest in the Lessor's Estate or the Trust
Agreement other than First Chicago Leasing Corporation. Neither the Lessee
nor, based on representations of First Chicago Leasing Corporation, anyone
acting on its behalf has directly or indirectly offered any interest in the
Lessor's Estate or the Trust Agreement, or similar interests, for sale to, or
solicited any offer to acquire any of the same from, anyone other than the
Owner Participant and no more than 15 other accredited investors (as such term
is defined in Regulation D promulgated under the Securities Act of 1933, as
amended).
Section 6.03. Certain Covenants of Lessee. The Lessee covenants and
agrees with the Owner Participant, the Owner Trustee (in its individual
capacity and as Owner Trustee), the Pass Through Trustee (in its individual
capacity and as Pass Through Trustee) and the Indenture Trustee (in its
individual capacity and as Indenture Trustee) as follows:
(a) The Lessee will cause to be done, executed, acknowledged and
delivered at the Lessee's cost and expense all such further acts,
conveyances and assurances as the Owner Trustee, the Indenture Trustee, the
Pass Through Trustee or the Owner Participant shall reasonably require for
accomplishing the purposes of this Agreement, the Trust Agreement, the
Purchase Agreement, the Purchase Agreement Assignment, the GTA, the Engine
Warranty Assignment, the Indenture, the Indenture and Security Agreement
Supplement, the Tax Indemnity Agreement, the Lease and the Lease Supplement
and the other Operative Agreements to which it is a party. Without
limiting the generality of this Section 6.03(a), the Lessee will promptly
take, or cause to be taken, at the Lessee's cost and expense, such action
with respect to the recording, filing, re-recording and re-filing of the
Indenture, each Indenture and Security Agreement Supplement, the Lease,
each Lease Supplement and any financing statements or other instruments as
may be necessary, or as requested by the Indenture Trustee and appropriate,
to maintain the perfection of the first security interest and the Lien
created by the Indenture, and the Owner Trustee's title to and interest in
the Aircraft and the Lessor's Estate as against the Lessee and any third
parties or if the Lessee cannot take, or cause to be taken, such action,
will furnish to the Indenture Trustee and the Owner Trustee timely notice
of the necessity of such action, together with such instruments, in
execution form, and such other information as may be required to enable
either of them to take such action at the Lessee's cost and expense in a
timely manner.
(b) From and after the Delivery Date, the Lessee shall maintain the
certificates referred to in Section 7.01 of the Lease and shall cause the
Aircraft to be duly registered, and at all times to remain duly registered,
in the name of the Owner Trustee, under the Transportation Code, and shall
furnish to the Owner Trustee such information as may be required to enable
the Owner Trustee to make application for such registration; provided,
however, that the Owner Participant, the Owner Trustee and the Indenture
Trustee agree that if at any time after December 31, 2004, so long as no
Event of Default shall have occurred and be continuing, the Lessee has
requested their consent to the registration of the Aircraft in the name of
the Owner Trustee (or, if appropriate under the laws of such
jurisdiction of reregistration, in the name of the Lessee or a sublessee
as a "lessee" or a "sublessee"), at the Lessee's expense, in a country
listed in Schedule III hereto with which the United States then
maintains normal diplomatic relations (and which is not then
experiencing war or substantial civil unrest), the Owner Participant,
the Owner Trustee and the Indenture Trustee upon receipt by the Owner
Participant, the Owner Trustee and the Indenture Trustee of the
assurances and opinion described below, shall not unreasonably withhold
their consent to such change in registration (it being agreed, without
limitation, that the inability of the Lessee to deliver such assurances
or such opinion shall constitute reasonable grounds to withhold such
consent).
As a condition to any change in the registration of the Aircraft, the
Owner Participant, the Owner Trustee in its individual and trust capacities,
and the Indenture Trustee shall have received:
(i) assurances satisfactory to them:
(A) to the effect that the insurance provisions of the Lease have
been and will be complied with and are and shall be in full force and
effect upon such change of registry;
(B) as to the continuation of the Lien of the Indenture as a
first priority, duly perfected Lien on the Aircraft;
(C) that the Owner Trustee's right, title and interest in and to
the Aircraft is recognized and fully enforceable in the new
jurisdiction of registry, that the rights of the Owner Trustee in and
to the Aircraft will not be impaired in such new jurisdiction of
registry and that the new jurisdiction of registry will give effect
to the title and registry of the Aircraft therein substantially to
the same extent as does the Government;
(D) that such new country of registry (x) would provide
substantially equivalent protection for the rights of owner
participants, lessors or lenders in similar transactions as provided
under United States law (except that, in the absence of restrictions
under the laws of such country on rights and remedies of lessors and
secured parties similar to those imposed by Sections 362 and 363 of
the Bankruptcy Code, rights and remedies similar to those available
under Section 1110 of the Bankruptcy Code shall not be required) and
(y)(i) if such change in registration is made other than in
connection with a sublease permitted under Section 7.02(a)(i) of the
Lease, imposes maintenance standards at least comparable to those of
the FAA, and (ii) if such change in registration is made in
connection with a sublease permitted under Section 7.02(a)(i) of the
Lease, imposes maintenance standards in conformity with those set
forth in Section 7.02(a)(i) of the Lease;
(E) that import and export certificates and any exchange permits
necessary to allow all Rent and other payments provided for under the
Lease, if required, shall have been procured at the Lessee's own cost
and expense by the Lessee;
(F) that the Lessee shall have effected or caused to be effected
at the Lessee's own cost and expense all recordings and filings that
are required to perfect the Lien of the Indenture;
(G) to the effect that the original indemnities (and any
additional indemnities for which the Lessee is then willing to
enter into a binding agreement to indemnify) in favor of the Owner
Participant, the Owner Trustee (in its individual capacity and as
trustee under the Trust Agreement), the Indenture Trustee (in its
individual capacity, and as trustee under the Indenture), the Pass
Through Trustee (in its individual capacity, and as trustee under
the Pass Through Agreement) and the other Indemnitees under this
Agreement, the Indenture, the Pass Through Agreement and (in the
case of the Owner Participant only) the Tax Indemnity Agreement,
afford each such party substantially the same protection as
provided prior to such change of registry;
(H) that such change will not result in the imposition of, or
increase in the amount of, any Tax (which, for this purpose, includes
the loss of any tax benefits assumed by the Owner Participant to be
available to it based upon the assumptions set forth in Section 2 of
the Tax Indemnity Agreement) for which the Lessee has not agreed to
indemnify the Owner Participant to its reasonable satisfaction, the
Indenture Trustee, the Pass Through Trustee, the Owner Trustee (or
any successor, assign or Affiliate thereof) and the Trust Estate;
(I) that any value added tax, customs duty, tariff or similar
governmental charge relating to the change in jurisdiction of
registration of the Aircraft shall have been paid in full or
adequately provided for by the Lessee to the satisfaction of the
Owner Trustee, the Indenture Trustee and the Owner Participant;
(J) of the payment by the Lessee of any reasonable fees and
expenses of the Owner Participant, the Owner Trustee, the Indenture
Trustee and the Pass Through Trustee in connection with such change
of registry, including any reasonable attorneys' fees and expenses;
(K) that duties and tariffs, if applicable, shall have been paid
for by the Lessee;
(L) as to the continuation of the Lien of the Indenture as a
first priority, duly perfected Lien on the Aircraft and the Trust
Indenture Estate, that all recordings and filings required to so
perfect the Lien of the Indenture have been duly effected, and that
no Liens (except Liens permitted under Section 6.01 of the Lease)
shall arise by reason of such registration; and
(M) that appropriate deregistration powers of attorney in favor of
the Owner Trustee and the Indenture Trustee have been executed and
delivered by the Lessee and any sublessee and, if necessary or
desirable for the effectiveness thereof, filed with the relevant
aeronautics authority; and
(ii) a favorable opinion of counsel (reasonably satisfactory to the
Owner Trustee, the Indenture Trustee and the Owner Participant) in the new
jurisdiction of registry, addressed and reasonably satisfactory to such
parties in scope, form and substance, to the effect:
(A) that the terms (including, without limitation, the governing
law, service-of-process and jurisdictional-submission provisions
thereof) of the Lease and the Indenture are legal, valid, binding and
enforceable in such jurisdiction against the Lessee, any sublessee,
the Owner Trustee and the Indenture Trustee, respectively;
(B) that it is not necessary for the Owner Participant, the Owner
Trustee, the Indenture Trustee or the Pass Through Trustee to
register or qualify to do business or meet other requirements not
already met in such jurisdiction in connection with the registration
in the new jurisdiction (and the filing and/or recordation therein of
the Indenture or the Lease) and the exercise of any rights or
remedies with respect to the Aircraft pursuant to the Lease or the
Indenture or in order to maintain such registration and the Lien of
the Indenture;
(C) that the courts of such jurisdiction would provide
substantially equivalent protection to the Lessor, the Owner
Participant, the Pass Through Trustee and the Indenture Trustee as
provided under United States law (with the exception described in
paragraph (b)(i)(D)(x) of this Section 6.03) in respect of the
transactions contemplated hereby, including, without limitation, the
remedies provided in the Indenture and the Lease;
(D) that there is no tort liability of the beneficial owner,
record owner, lessor or mortgagee of an aircraft not in possession
thereof under the laws of such jurisdiction, other than tort
liability which might reasonably have been imposed on such owner,
lessor or mortgagee under the laws of the United States or any state
thereof (it being understood that, in the event such latter opinion
cannot be given in a form satisfactory to the Owner Trustee, the
Owner Participant and the Indenture Trustee, such opinion shall be
waived, if insurance reasonably satisfactory to the Owner
Participant, the Indenture Trustee and the Owner Trustee, in its
individual capacity, is provided, at the Lessee's expense, to cover
such risk and the Lessee undertakes to keep such insurance in full
force and effect);
(E) that the laws of such jurisdiction will not impair the rights
of the Lessor in and to the Aircraft or under the Lease and (unless
the Lessee shall have agreed to provide insurance reasonably
satisfactory to the Indenture Trustee and the Owner Participant
covering the risk of requisition of use of the Aircraft by the
government of registry of the Aircraft) require fair compensation by
the government of such jurisdiction payable in currency freely
convertible into United States dollars for the loss of use of the
Aircraft in the event of such requisition;
(F) that the Owner Trustee's title to the Aircraft is recognized
and fully enforceable in such jurisdiction, that such jurisdiction
will give effect to the title of the Aircraft therein substantially
to the same extent as does the Government, and that the Lien of the
Indenture shall continue as a first priority, duly perfected lien on
the Aircraft;
(G) to such further effect with respect to such other matters as
the Owner Participant, the Owner Trustee, or the Indenture Trustee may
reasonably request; and
(H) the Lien of the Indenture continues to constitute a first
priority, duly perfected Lien on the Aircraft.
(c) The Lessee shall promptly file any reports, or furnish to the
Owner Trustee and the Owner Participant such information as may be required
to enable the Owner Trustee and the Owner Participant timely to file any
reports required to be filed by the Owner Trustee as the Lessor and the
Owner Participant under the Lease with any governmental authority.
(d) The Lessee will cause the Special Aviation Counsel to file, and
where appropriate record, on the Delivery Date, AVSA's FAA Bill of Sale,
the Lease, the Lease Supplement, the Trust Agreement, the Indenture and the
Indenture and Security Agreement Supplement. The following documents shall
be filed and, where appropriate, recorded on the Delivery Date with the
Aeronautics Authority in the following order of priority: first, AVSA's
FAA Bill of Sale, second, the Application, with the Trust Agreement and the
Affidavits, third, the Indenture with the Indenture and Security Agreement
Supplement attached thereto, and fourth, the Lease with the Lease
Supplement, the Indenture and the Indenture and Security Agreement
Supplement attached thereto.
(e) The Lessee will furnish to the Owner Participant, the Owner
Trustee and the Indenture Trustee annually after the execution of this
Agreement, by March 15 of each year, commencing with the year 1998, an
opinion, reasonably satisfactory to the Owner Participant and the Indenture
Trustee, of Special Aviation Counsel, or other counsel specified from time
to time by the Lessee acceptable to the Lessor and the Indenture Trustee:
(i) stating either (1) that in the opinion of such counsel such action has
been taken with respect to the recording, filing, re-recording and
re-filing of the Lease, the Indenture, the Trust Agreement, and any
supplements to any of them and any financing statements, continuation
statements or other instruments, and all other action has been taken, as is
necessary to maintain the Owner Trustee's title to and interest in the
Aircraft and the Lessor's Estate as against the Lessee and any third
parties and to maintain the perfection of the security interests created by
said documents and reciting the details of such action, or (2) that in the
opinion of such counsel no such action is necessary to maintain such title
or the perfection of such security interests; (ii) specifying all other
action which needs to be taken during the succeeding 14 months in order to
maintain such title and the perfection of such security interests (which
the Lessee agrees timely to take); and (iii) stating that the Owner Trustee
is the owner of legal title to the Aircraft, and the Aircraft is free and
clear of all Liens, except the security interest created by the Indenture
and such as are permitted by the Lease and the Indenture.
(f) The Lessee shall at all times maintain its corporate existence
except as permitted by Section 6.03(g) hereof and all of its rights,
privileges and franchises necessary in the normal conduct of its business,
except for any corporate right, privilege or franchise (i) that it
determines, in its reasonable, good faith business judgment, is no longer
necessary or desirable in the conduct of its business and (ii) the loss of
which will not materially adversely affect or diminish the rights of the
Holders or the Owner Participant.
(g) The Lessee shall not enter into any merger or consolidation, or
convey, transfer or lease all or substantially all of its assets as an
entirety to any Person, unless the surviving corporation or Person which
acquires by conveyance, transfer or lease all or substantially all of the
assets of the Lessee as an entirety (i) is a domestic corporation organized
and existing under the laws of the United States or a political subdivision
thereof, (ii) is a Citizen of the United States, (iii) is a U.S. Air
Carrier, (iv) expressly assumes by an instrument in writing in form and
substance satisfactory to the Owner Participant, the Indenture Trustee and
the Owner Trustee all of the Lessee's obligations hereunder and under the
other Operative Agreements, and each other document contemplated hereby or
thereby and the Lessee delivers such instrument to the Indenture Trustee,
the Owner Participant and the Owner Trustee, (v) provides an opinion from
outside counsel to the Lessee which counsel shall be reasonably
satisfactory to the Owner Participant and the Indenture Trustee and which
opinion shall be reasonably satisfactory to the Owner Participant and the
Indenture Trustee, and an officer's certificate, each stating that such
merger, consolidation, conveyance, transfer or lease and the instrument
noted in clause (iv) above comply with this Section 6.03(g), that such
instrument is a legal, valid and binding obligation of, and is enforceable
against, such survivor or Person, and that all conditions precedent herein
provided for relating to such transaction have been complied with, and (vi)
immediately after such merger, consolidation or conveyance, transfer or
lease, as the case may be, the surviving company (or Person which acquires
by conveyance, transfer or lease the assets of the Lessee) is in compliance
with all of the terms and conditions of this Agreement and the Lease and
each other Operative Agreement and each other document contemplated hereby
or thereby; provided that no such merger, consolidation or conveyance,
transfer or lease shall be permitted if the same gives rise to an Event of
Default.
Upon any consolidation or merger, or any conveyance, transfer or
lease of all or substantially all of the assets of the Lessee and the
satisfaction of the conditions specified in this Section 6.03(g), the
successor corporation formed by such consolidation or into which the Lessee
is merged or the Person 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 Lessee under this Agreement and the Lease and each other
Operative Agreement and any other document contemplated hereby and thereby
to which the Lessee is a party with the same effect as if such successor
corporation had been named as the Lessee herein and therein. No such
conveyance, transfer or lease of all or substantially all of the assets of
the Lessee as an entirety shall have the effect of releasing the Lessee or
any successor corporation which shall theretofore have become the Lessee
hereunder in the manner prescribed in this Section 6.03(g) from its
liability hereunder or under the other Operative Agreements. Nothing
contained herein shall permit any lease, sublease, or other arrangement for
the use, operation or possession of the Aircraft except in compliance with
the applicable provisions of the Lease.
(h) The Lessee agrees to give prompt written notice to the Owner
Participant, the Owner Trustee and the Indenture Trustee of any change in
the address of its chief executive office (as such term is used in Section
9-103(3) of the Tennessee Uniform Commercial Code) or of any change in its
corporate name.
(i) The Lessee agrees to furnish to the Owner Participant, the
Lessor and the Indenture Trustee:
(A) as soon as available, but in any event within one hundred
twenty (120) days after the end of each fiscal year of the Lessee, a
consolidated balance sheet as of the end of such fiscal year, and the
related consolidated statements of income, common stockholders'
equity, retained earnings and cash flows of the Lessee for the fiscal
year then ended as prepared and certified by the Lessee's independent
certified public accountants, including their opinion;
(B) within sixty (60) days after the end of the first, second and
third quarterly accounting periods in each fiscal year of the Lessee,
a consolidated balance sheet of the Lessee prepared by it as of the
close of the accounting period then ended, together with the related
consolidated statements of income, retained earnings and cash flows
for such accounting period certified by the chief accounting officer
or a financial vice president of the Lessee;
(C) promptly upon their general transmission, copies of all
reports and statements furnished by the Lessee to its stockholders;
(D) promptly after filing with the SEC, copies of the Lessee's
Annual Reports on Form 10-K (including all corresponding annual
reports to shareholders), Quarterly Reports on Form 10-Q and, if
requested, any registration statement or prospectus filed by the
Lessee with any securities exchange or with the SEC;
(E) promptly upon (and in any event within five (5) Business Days
after) any officer of the Lessee obtaining knowledge of any condition
or event which constitutes a Default or an Event of Default, an
officer's certificate specifying the nature and period of existence
thereof and what action the Lessee has taken or is taking or proposes
to take with respect thereto;
(F) from time to time, such other financial information as the
Lessor, the Owner Participant or the Indenture Trustee may
reasonably request.
Concurrently with the delivery of the financial statements referred
to in clause (A) above, the Lessee shall deliver to the Lessor, the Owner
Participant, the Indenture Trustee and the Pass Through Trustee a certificate
of the Lessee, signed by any one of the President, the Chief Financial
Officer, the General Counsel, the Treasurer or the principal accounting
officer of the Lessee, stating that the signer, or an employee reporting to
same, is familiar with the relevant terms of this Agreement and the Lease and
the signer has reviewed, or has caused to be made under such Person's
supervision a review, of the activities of the Lessee and that, to the best of
his or her knowledge, there does not exist any Default or any Event of Default
or if a Default or an Event of Default exists or did exist, specifying the
nature thereof, the period of existence thereof and what action the Lessee has
taken or proposes to take with respect thereto.
Section 6.04. Survival of Representations and Warranties. The
representations and warranties of the Lessee provided in Sections 6.01 and
6.02 hereof and in any other Operative Agreement shall survive the Closings
hereunder and the delivery of the Aircraft and the expiration or other
termination of this Agreement and the other Operative Agreements.
ARTICLE 7
OTHER PARTIES' REPRESENTATIONS, WARRANTIES AND COVENANTS
Section 7.01. Acquisitions and Offerings of Interests in Lessor's
Estate. (a) [Reserved]
(b) Owner Participant. The Owner Participant represents and
warrants that its interest in the Lessor's Estate and the Trust Agreement is
being acquired by it for its own account and not with a view to resale or
distribution thereof; provided, however, that the disposition by the Owner
Participant of its interest in the Lessor's Estate and the Trust Agreement
shall, subject to the terms and provisions of Section 7.03(d) hereof (except
as provided in clause (ii) of Section 3.05(a) hereof), at all times be within
its control and the foregoing representation shall not limit the Owner
Participant's right to transfer or sell such interests pursuant to the terms
of this Agreement. Neither the Owner Participant nor anyone authorized to act
on its behalf has directly or indirectly offered any interest in the Lessor's
Estate or the Trust Agreement, or in any similar security, for sale to, or
solicited any offer to acquire any of the same from, anyone. The Owner
Participant further represents and warrants that neither it nor anyone
authorized to act on its behalf has made or will make any offer, solicitation
or sale of any interest in the Lessor's Estate or the Trust Agreement in
violation of the provisions of Section 5 of the Securities Act of 1933, as
amended. No representation in this Section 7.01(b) shall include any action
or inaction of the Lessee, First Chicago Leasing Corporation, the
Subordination Agent, the Underwriters or any Affiliates of any thereof whether
or not such action or inaction is purportedly on behalf of the Owner Trustee,
the Owner Participant or any of their Affiliates.
Section 7.02. Citizenship. (a) Generally. Each of the Owner
Trustee, in its individual capacity and as Trustee, and the Owner Participant
severally represents and warrants that it is or will be a Citizen of the
United States on the Delivery Date. If the Owner Participant or the Owner
Trustee in its individual capacity does not comply with the requirements of
this Section 7.02, the Owner Trustee, the Indenture Trustee and the Owner
Participant hereby agree that a Default or an Event of Default shall not be
deemed to have occurred and be continuing under the Lease due to
non-compliance by the Lessee with the registration requirements in the Lease
occasioned by the noncompliance of the Owner Participant or the Owner Trustee.
(b) Owner Trustee. The Owner Trustee, in its individual capacity,
covenants that if at any time on or after the Delivery Date it shall have
actual knowledge that it has ceased to be a Citizen of the United States, it
will resign immediately as the Owner Trustee if such citizenship is necessary
under the Transportation Code as in effect at such time or, if it is not
necessary under the Transportation Code as in effect at such time, if it is
informed in writing by the Lessee, the Indenture Trustee or the Owner
Participant that such lack of United States citizenship would have any adverse
effect on the Lessee, the Indenture Trustee, the Holders or the Owner
Participant. The Owner Trustee, in its individual capacity, further covenants
that if at any time it appears reasonably probable that it will cease to be a
Citizen of the United States based on information that is (i) known to a
Responsible Officer or (ii) generally known to the public, it will promptly so
notify, to the extent permitted by law, all parties to this Agreement.
(c) Owner Participant. The Owner Participant agrees, solely for the
benefit of the Lessee, the Pass Through Trustee, the Indenture Trustee and the
Owner Trustee, that if at any time on or after the Delivery Date when the
Aircraft is registered or the Lessee proposes to register the Aircraft in the
United States (i) either it shall cease to be, or an event which has been
publicly disclosed has occurred of which the Owner Participant has knowledge
and which will cause the Owner Participant to cease to be, a Citizen of the
United States and (ii) the Aircraft shall or would therefore become ineligible
for registration in the name of the Owner Trustee under the Transportation
Code and regulations then applicable thereunder, then the Owner Participant
shall give notice thereof to the Lessee, the Owner Trustee and the Indenture
Trustee and shall (at its own expense and without any reimbursement or
indemnification from the Lessee) immediately (and in any event within a period
of 20 days) (x) effect a voting trust or other similar arrangement, (y)
transfer in accordance with the terms of this Agreement and the Trust
Agreement all its rights, title and interest in and to such Trust Agreement,
the Lessor's Estate and this Agreement, or (z) take any other alternative
action that would prevent any deregistration, or maintain or permit the United
States registration, of the Aircraft. It is agreed that the Owner Participant
shall be liable to pay promptly on request (A) to each of the other parties
hereto any actual damages (but not consequential damages) suffered by any such
other party to the extent the same shall result from the representation and
warranty of the Owner Participant in the first sentence of Section 7.02(a)
hereof proving to be untrue as of the Delivery Date; and (B) to the Lessee,
the Indenture Trustee or the Pass Through Trustee for any damages actually
(but not consequentially) incurred by the Lessee, the Indenture Trustee and
the Pass Through Trustee as a result of the Owner Participant's failure to
comply with its obligations pursuant to the first sentence of this Section
7.02(c); provided, that, the foregoing shall not restrict the Pass Through
Trustee or the Indenture Trustee from asserting against the Owner Participant
any damages actually incurred by the holders of any Pass Through Certificates.
Each party hereto agrees, upon the request and at the sole expense of the
Owner Participant, to cooperate with the Owner Participant in complying with
its obligations under the provisions of the first sentence of this Section
7.02(c), but without any obligation on the part of such other party to take
any action believed by it in good faith to be unreasonably burdensome to such
party or materially adverse to its business interests.
Section 7.03. Representations, Warranties and Covenants of Owner
Participant. (a) Representations, Warranties and Covenants. In addition to
and without limiting its other representations and warranties provided for in
this Article 7, the Owner Participant represents and warrants on the date
hereof and as of the Certificate Closing Date and the Delivery Date that:
(i) it is a corporation duly incorporated and validly existing in
good standing under the laws of the State of Delaware and it has full
corporate power, authority and legal right to carry on its present business
and operations, to own or lease its Properties and to enter into and to
carry out the transactions contemplated by this Agreement, the Tax
Indemnity Agreement, the Trust Agreement and the other Operative Agreements
to which it is party;
(ii) the execution, delivery and performance by it of this
Agreement, the Tax Indemnity Agreement, and the Trust Agreement and the
other Operative Agreements to which it is party have been duly authorized
by all necessary corporate action on its part and, assuming the accuracy of
the Lessee's representations in Section 6.01(o) hereof, do not require any
governmental approvals that would be required to be obtained by the Owner
Participant;
(iii) based on the representations, warranties and covenants
contained in Sections 6.01(m)(viii), 6.02 and 7.09 hereof and compliance
with Section 10.06 of the Indenture, neither the execution, delivery or
performance by the Owner Participant of this Agreement, the Tax Indemnity
Agreement, and the Trust Agreement and the other Operative Agreements to
which it is party nor compliance with the terms and provisions hereof or
thereof, conflicts or will conflict with or results or will result in a
breach or violation of any of the terms, conditions or provisions of, or
will require any consent or approval under any law, governmental rule or
regulation applicable to the Owner Participant or the charter documents,
as amended, or bylaws, as amended, of the Owner Participant or any
order, writ, injunction or decree of any court or governmental authority
against the Owner Participant or by which it or any of its Properties is
bound or any indenture, mortgage or contract or other agreement or
instrument to which the Owner Participant is a party or by which it or
any of its Properties is bound, or constitutes or will constitute a
default thereunder or results or will result in the imposition of any
Lien upon any of its Properties;
(iv) this Agreement, the Tax Indemnity Agreement and the Trust
Agreement and the other Operative Agreements to which it is party have been
or on the Certificate Closing Date will be duly executed and delivered by
the Owner Participant and constitute or on the Certificate Closing Date
will constitute the legal, valid and binding obligation of the Owner
Participant enforceable against it in accordance with their terms except as
such enforceability may be limited by bankruptcy, insolvency, moratorium,
reorganization or other similar laws or equitable principles of general
application to or affecting the enforcement of creditors' rights
(regardless of whether enforceability is considered in a proceeding in
equity or at law);
(v) it is not in default under any mortgage, deed of trust,
indenture, lease or other instrument or agreement to which the Owner
Participant is a party or by which it or any of its Properties may be
bound, or in violation of any applicable law, which default or violation
would have a material adverse effect on the financial condition, business
or operations of the Owner Participant or an adverse effect on the ability
of the Owner Participant to perform its obligations under this Agreement
and the other Operative Agreements to which it is or is to be a party;
(vi) there are no pending or, to the knowledge of the Owner
Participant, threatened actions, suits, investigations or proceedings
against the Owner Participant before any court, administrative agency or
tribunal which are expected to materially adversely affect the ability of
the Owner Participant to perform its obligations under this Agreement and
the other Operative Agreements to which it is or is to be a party and the
Owner Participant knows of no pending or threatened actions or proceedings
before any court, administrative agency or tribunal involving it in
connection with the transactions contemplated by the Operative Agreements;
(vii) neither the execution and delivery by it of this Agreement or
the other Operative Agreements to which it is a party nor the performance
of its obligations hereunder or thereunder requires the consent or approval
of or the giving of notice to, the registration with, or the taking of any
other action in respect of, any governmental authority or agency that would
be required to be obtained or taken by the Owner Participant except for
filings contemplated by this Agreement;
(viii) no part of the funds to be used by it to acquire the interests
to be acquired by the Owner Participant under this Agreement constitutes
assets (within the meaning of ERISA and any applicable rules and
regulations) of any employee benefit plan subject to Title I of ERISA or of
any plan or individual retirement account subject to Section 4975 of the
Code; and
(ix) it is a "U.S. Person" as defined in Section 7701(a)(30) of the
Code and is not a tax resident of another country.
Notwithstanding the foregoing or anything else contained in this
Agreement, the Owner Participant makes no representation or warranty in this
Agreement with respect to laws, rules or regulations relating to aviation or
to the nature or use of the equipment owned by the Owner Trustee, including,
without limitation, the airworthiness, value, condition, workmanship, design,
patent or trademark infringement, operation, merchantability or fitness for
use of the Aircraft, other than such laws, rules or regulations relating to
the citizenship requirements of the Owner Participant under applicable
aviation law.
(b) Lessor's Liens. The Owner Participant further represents,
warrants and covenants that there are no Lessor's Liens attributable to it (or
an Affiliate thereof) and that there will not be any Lessor's Lien
attributable to it (or an Affiliate thereof) on the Certificate Closing Date.
The Owner Participant agrees with and for the benefit of the Lessee, the Owner
Trustee, the Indenture Trustee and the Pass Through Trustee that the Owner
Participant will, at its own cost and expense, take such action as may be
necessary (by bonding or otherwise, so long as neither the Lessee's operation
and use of the Aircraft nor the validity and priority of the Lien of the
Indenture is impaired) to duly discharge and satisfy in full, promptly after
the same first becomes known to the Owner Participant, any Lessor's Lien
attributable to the Owner Participant (or an Affiliate thereof), provided,
however, that the Owner Participant shall not be required to discharge or
satisfy such Lessor's Lien which is being contested by the Owner Participant
in good faith and by appropriate proceedings so long as such proceedings do
not involve any material danger of the sale, forfeiture or loss of the
Aircraft or the Lessor's Estate or the Trust Indenture Estate or any interest
in any thereof or otherwise materially adversely affect the validity or
priority of the Lien of the Indenture.
(c) Reimbursement. Without limiting any other rights the parties
hereto may have as a result of any breach by the Owner Participant of its
obligations in Section 7.03(b) hereof, the Owner Participant agrees to
reimburse each other party hereto for all reasonable legal fees and expenses
of counsel that may be incurred by any such party as a result of the failure
of the Owner Participant to discharge and satisfy any such Lessor's Lien in
accordance with the terms of Section 7.03(b) hereof.
(d) Assignment of Interests of Owner Participant. At any time after
the Delivery Date (or upon the direction of the Lessee if Section 3.05(a)(i)
hereof shall be applicable), and subject to the conditions set forth in this
Section 7.03(d), the Owner Participant may assign, convey or otherwise
transfer to a single institutional investor or an Affiliate of an
institutional investor all (but not less than all) of the Beneficial Interest,
provided that it gives the Lessee and the Indenture Trustee at least 10
Business Days' notice of such assignment, conveyance or other transfer and
provided further that the Owner Participant and any Owner Participant
Guarantor shall remain liable for all obligations of the Owner Participant
under the Trust Agreement and the Operative Agreements to which the Owner
Participant is a party to the extent (but only to the extent) relating to the
period on or before the date of such transfer and provided that the transferee
agrees by a written instrument substantially in the form attached hereto as
Exhibit G-1 to assume primary liability for all obligations as an Owner
Participant under the Trust Agreement and the other Operative Agreements to
which such Owner Participant is a party relating to the period after the date
of transfer. Any such transferee shall (a) be (i) a bank, savings
institution, finance company, leasing company or trust company, national
banking association acting for its own account or in a fiduciary capacity as
trustee or agent under any pension, retirement, profit sharing or similar
trust or fund, insurance company, fraternal benefit society or corporation
acting for its own account having a combined capital and surplus (or, if
applicable, consolidated tangible net worth or its equivalent) of not less
than $75,000,000, (ii) a subsidiary of any Person described in clause (i)
where such Person provides (A) support for the obligations assumed by such
transferee subsidiary reasonably satisfactory to the Lessee, the Owner Trustee
and the Indenture Trustee or (B) an unconditional guaranty substantially in
the form of Exhibit G-2 attached hereto of such transferee subsidiary's
obligations, or (iii) an Affiliate of the transferring Owner Participant, so
long as such Affiliate has a combined capital and surplus (or, if applicable,
consolidated tangible net worth or its equivalent) of not less than
$75,000,000, (b) be legally capable of binding itself to the obligations of
the Owner Participant and shall expressly agree to assume all obligations of
the Owner Participant under the Trust Agreement and this Agreement and (c)
provide representations substantially similar to those contained in Sections
7.02(a) and 7.03(a) hereof. In the event of any such assignment, conveyance
or transfer, the transferee shall become a party to the Trust Agreement and
shall agree to be bound by all the terms of and will undertake all of the
obligations of the Owner Participant contained in the Trust Agreement and the
other Operative Agreements in the manner set forth in the form attached as
Exhibit G-1. A transferee hereunder shall be (i) a "U.S. Person" as defined
in Section 7701(a)(30) of the Code (or any successor provision thereto) and
such transferee shall be personally liable for any debt service to the extent
that its receipt of rentals is reduced by reason of any withholding Taxes that
result from such transferee's failure to be such a "U.S. Person" and (ii) a
Citizen of the United States or has established a voting trust, voting powers
or other arrangement reasonably satisfactory to the Indenture Trustee and the
Lessee to permit the Owner Trustee to be the registered owner of the Aircraft
under the Transportation Code. A transferee hereunder shall not be, and in
acquiring the Beneficial Interest shall not use the assets of, an employee
benefit plan subject to Title I of ERISA or an individual retirement account
or a plan subject to Section 4975 of the Code. Assuming the truth of the
representations made in Sections 6.01(m) and 7.06 hereof and compliance with
Section 10.06 of the Indenture, no such assignment, conveyance or transfer
shall violate any provision of law or regulation or create a relationship
which would be in violation thereof. The Owner Trustee shall not be on notice
of or otherwise bound by any such assignment, conveyance or transfer unless
and until it shall have received an executed counterpart of the instrument of
such assignment, conveyance or transfer. Upon any such disposition by the
Owner Participant to a transferee as above provided, the transferee shall be
deemed the "Owner Participant" or "Trustor" for all purposes of the Operative
Agreements, and shall be deemed to have made all the payments previously made
by its transferor and to have acquired the same interest in the Lessor's
Estate as theretofore held by its transferor; and each reference therein to
the "Owner Participant" or "Trustor" shall thereafter be deemed a reference
to such transferee. Notwithstanding anything to the contrary contained in
this Section 7.03(d), in no event shall the Owner Participant transfer its
interest in the Beneficial Interest to any entity whose business is that of
a nationwide or worldwide overnight or expedited delivery small package air
courier, cargo or freight deliverer or which competes with the Lessee in
such lines of business. The Lessee agrees that it will reasonably
cooperate with the Owner Participant in effecting an assignment of the
Owner Participant's interests including, without limitation, providing
letters to any successor Owner Participant permitting such successor Owner
Participant to rely on any opinions provided by the Lessee on the Delivery
Date.
(e) Actions with Respect to Lessor's Estate, Etc. The Owner
Participant agrees that it will not take any action to subject the Lessor's
Estate or the trust established by the Trust Agreement, as debtor, to the
reorganization or liquidation provisions of the Bankruptcy Code or any other
applicable bankruptcy or insolvency statute.
Section 7.04. Representations, Covenants and Warranties of SSB and
the Owner Trustee. (a) In addition to and without limiting its other
representations and warranties provided for in this Article 7, SSB represents
and warrants, in its individual capacity with respect to items (i), (ii),
(iii)(A), (iv), (v), (vi) and (vii) below, and as the Owner Trustee with
respect to items (iii)(B) and (iv) on the date hereof and as of the
Certificate Closing Date and the Delivery Date that:
(i) it is a national banking association duly organized and validly
existing in good standing under the laws of the United States of America
with its principal place of business and chief executive office (as such
terms are used in Article 9 of the Uniform Commercial Code) at 750 Main
Street, Hartford, Connecticut 06013, Attention: Corporate Trust Department
and has full corporate power and authority, in its individual capacity or
(assuming the Trust Agreement has been duly authorized, executed and
delivered by the Owner Participant) as the Owner Trustee, as the case may
be, to carry on its business as now conducted, and to execute, deliver and
perform this Agreement and the Operative Agreements to which it is or is to
be a party;
(ii) the execution, delivery and performance by SSB, either in its
individual capacity or as the Owner Trustee, as the case may be, of this
Agreement and the Operative Agreements to which it is or is to be party
have been duly authorized by all necessary corporate action on its part,
and do not contravene its articles of association or by-laws; each of this
Agreement and the other Operative Agreements to which it is or is to be a
party has been duly authorized, and has been duly executed and delivered
or, in the case of the Operative Agreements identified in Section 4.02(c)
hereof, will on the Delivery Date be duly executed and delivered by SSB,
either in its individual capacity or as the Owner Trustee, as the case may
be, and neither the execution and delivery thereof nor SSB's performance
of or compliance with any of the terms and provisions thereof will violate
any Federal or Connecticut law or regulation governing SSB's banking or
trust powers;
(iii) (A) assuming due authorization, execution and delivery by each
other party thereto, each of the Operative Agreements to which it is or is
to be party when duly executed and delivered will, to the extent each such
document is entered into by SSB in its individual capacity, constitute the
legal, valid and binding obligation of SSB in its individual capacity
enforceable against it in such capacity in accordance with its respective
terms, except as such enforceability may be limited by bankruptcy,
insolvency, reorganization or other similar laws or equitable principles of
general application to or affecting the enforcement of creditors' rights
(regardless of whether enforceability is considered in a proceeding in
equity or at law), and the performance by SSB in its individual capacity of
any of its obligations thereunder does not contravene any lease, regulation
or contractual restriction binding on SSB in its individual capacity;
(B) assuming due authorization, execution and delivery by each
other party thereto, each of the Operative Agreements to which it is or
is to be party when duly executed and delivered will, to the extent each
such document is entered into by the Owner Trustee in its trust
capacity, constitute the legal, valid and binding obligation of the
Owner Trustee enforceable against it in such capacity in accordance with
its respective terms, except as such enforceability may be limited by
bankruptcy, insolvency, reorganization or other similar laws or
equitable principles of general application to or affecting the
enforcement of creditors' rights (regardless of whether enforceability
is considered in a proceeding in equity or at law), and the performance
by the Owner Trustee of any of its obligations thereunder does not
contravene any lease, regulation or contractual restriction binding on
the Owner Trustee;
(iv) there are no pending or, to its knowledge, threatened actions
or proceedings against SSB before any court or administrative agency
which would materially and adversely affect the ability of SSB, either
in its individual capacity or as the Owner Trustee, as the case may be,
to perform its obligations under the Operative Agreements to which it is
or is to be party;
(v) it shall give the Lessee, the Indenture Trustee and the Owner
Participant at least thirty (30) days' prior written notice in the event of
any change in its chief executive office or name;
(vi) neither the execution and delivery by it, either in its
individual capacity or as the Owner Trustee, as the case may be, of any of
the Operative Agreements to which it is or is to be a party, requires on
the part of SSB in its individual capacity or any of its Affiliates the
consent or approval of or the giving of notice to, the registration with,
or the taking of any other action in respect of, any Federal or Connecticut
governmental authority or agency governing its banking or trust powers; and
(vii) on the Certificate Closing Date, the proceeds arising from the
issuance and sale of the Certificates shall be free of Lessor's Liens
attributable to SSB in its individual capacity and on the Delivery Date the
Owner Trustee shall be holding whatever title to the Aircraft as was
conveyed to it by AVSA, the Aircraft shall be free of Lessor's Liens
attributable to SSB in its individual capacity and SSB in its individual
capacity is a Citizen of the United States.
(b) Lessor's Liens. SSB, in its individual capacity, further
represents, warrants and covenants that there are no Lessor's Liens
attributable to it in its individual capacity and that there will not be any
such Lessor's Liens on the Certificate Closing Date or the Delivery Date. The
Owner Trustee, in its trust capacity, and at the cost and expense of the
Lessee, covenants that it will in its trust capacity promptly, and in any
event within 30 days after the same shall first become known to it, take such
action as may be necessary to discharge duly any Lessor's Liens attributable
to it in its trust capacity. SSB, in its individual capacity, covenants and
agrees that it will at its own expense take such action as may be necessary to
duly discharge and satisfy in full, promptly, and in any event within 30 days
after the same shall first become known to it, any Lessor's Liens attributable
to it in its individual capacity which may arise at any time after the date of
this Agreement.
(c) Indemnity for Lessor's Liens. SSB, in its individual capacity,
agrees to indemnify and hold harmless the Lessee, the Indenture Trustee, the
Owner Participant and the Pass Through Trustee and the Owner Trustee from and
against any loss, cost, expense or damage which may be suffered by the Lessee,
the Indenture Trustee, the Owner Participant, the Pass Through Trustee or the
Owner Trustee as a result of the failure of SSB to discharge and satisfy any
Lessor's Liens attributable to it in its individual capacity, as described in
Section 7.04(b) hereof.
(d) Securities Act. None of SSB, the Owner Trustee or any Person
authorized by either of them to act on its behalf has directly or indirectly
offered or sold or will directly or indirectly offer or sell any interest in
the Lessor's Estate, or in any similar security relating to the Lessor's
Estate, or in any security the offering of which for purposes of the
Securities Act of 1933, as amended, would be deemed to be part of the same
offering as the offering of the aforementioned securities to, or solicited any
offer to acquire any of the same from, any Person.
(e) Actions With Respect to Lessor's Estate, Etc. Neither SSB, in
its individual capacity, nor the Owner Trustee will take any action to subject
the Lessor's Estate or the trust established by the Trust Agreement, as
debtor, to the reorganization or liquidation provisions of the Bankruptcy Code
or any other applicable bankruptcy or insolvency statute.
Section 7.05. Representations, Warranties and Covenants of the
Indenture Trustee. (a) The Indenture Trustee in its individual capacity (other
than as the Pass Through Trustee) represents on the date hereof and as of the
Certificate Closing Date and the Delivery Date as follows:
(i) it is a national banking association duly organized and validly
existing in good standing under the laws of the United States of America
and has the power and authority to enter into and perform its obligations
under the Indenture, this Agreement and the other Operative Agreements to
which it is a party and to authenticate the Certificates to be delivered on
the Certificate Closing Date;
(ii) the Indenture and this Agreement and the other Operative
Agreements to which it is or is to be a party, and the authentication of
the Certificates to be delivered on the Certificate Closing Date, have been
duly authorized by all necessary corporate action on its part, and neither
the execution and delivery thereof nor its performance of any of the terms
and provisions thereof will violate any Federal or Utah law or regulation
relating to its banking or trust powers or contravene or result in any
breach of, or constitute any default under, its articles of association or
by-laws;
(iii) each of the Indenture and this Agreement, and the other
Operative Agreements to which it is or is to be a party, has been duly
executed and delivered or, in the case of the Operative Agreements
identified in Section 4.02(c) hereof, will on the Delivery Date be executed
and delivered by it and, assuming that each such agreement is the legal,
valid and binding obligation of each other party thereto, is (or will be,
as the case may be), the legal, valid and binding obligation of the
Indenture Trustee, enforceable against the Indenture Trustee in accordance
with its terms except as such enforceability may be limited by bankruptcy,
insolvency, reorganization or other similar laws or equitable principles of
general application to or affecting the enforcement of creditors' rights
(regardless of whether enforceability is considered in a proceeding in
equity or at law);
(iv) neither the execution and delivery by it of the Indenture and
this Agreement and the other Operative Agreements to which it is or is to
be a party, nor the performance by it of any of the transactions
contemplated hereby or thereby, requires the consent or approval of, the
giving of notice to, the registration with, or the taking of any other
action in respect of, any Federal or state governmental authority or agency
governing its banking and trust powers; and
(v) on the Certificate Closing Date, the Indenture Trustee holds
the Liquid Collateral on behalf of the Owner Trustee and on the Delivery
Date, the Indenture Trustee will hold the original counterparts of the
Lease and the Lease Supplement.
(b) Indenture Trustee's Liens. The Indenture Trustee, in its
individual capacity, further represents, warrants and covenants that there are
no Indenture Trustee's Liens attributable to it in its individual capacity and
that there will not be any Indenture Trustee's Liens on the Certificate
Closing Date or, as at and following the Delivery Date, the Aircraft. The
Indenture Trustee, in its individual capacity, covenants and agrees that it
will at its own expense take such action as may be necessary to duly discharge
and satisfy in full, promptly, and in any event within 30 days, after the same
shall first become known to it, any Indenture Trustee's Liens.
(c) Indemnity for Indenture Trustee's Liens. The Indenture Trustee,
in its individual capacity, agrees to indemnify and hold harmless the Lessee,
the Owner Participant, the Owner Trustee and the Pass Through Trustee from and
against any loss, cost, expense or damage which may be suffered by the Lessee,
the Indenture Trustee, the Owner Participant, the Owner Trustee or the Pass
Through Trustee as a result of the failure of the Indenture Trustee to
discharge and satisfy any Indenture Trustee's Liens attributable to it in its
individual capacity, as described in Section 7.05(b) hereof.
Section 7.06. Indenture Trustee's Notice of Default. The Indenture
Trustee agrees to give the Owner Participant notice of any Default or Event of
Default promptly upon a Responsible Officer of the Indenture Trustee having
actual knowledge thereof.
Section 7.07. Releases from Indenture. The Indenture Trustee
covenants and agrees, for the benefit of the Lessee and the Owner Participant,
to execute and deliver the instruments of release from the Lien of the
Indenture which it is required to execute and deliver in accordance with the
provisions of Article XIV of the Indenture, and the Owner Participant agrees,
for the benefit of the Lessee, to cause the Owner Trustee to request the
Indenture Trustee to execute and deliver such instruments of release upon
written notice from the Lessee to make such request.
Section 7.08. Covenant of Quiet Enjoyment. Each of the Owner
Participant, the Indenture Trustee, the Pass Through Trustee and the Owner
Trustee covenants and agrees as to itself only that, so long as no Event of
Default under the Lease has occurred and is continuing, neither the Owner
Participant (or the Owner Trustee, the Pass Through Trustee or the Indenture
Trustee, as the case may be) nor any Person lawfully claiming through the
Owner Participant (or the Owner Trustee, the Pass Through Trustee or the
Indenture Trustee, as the case may be) shall interfere with the Lessee's right
quietly to enjoy the Aircraft during the Term without hindrance or disturbance
by the Owner Participant (or the Owner Trustee, the Pass Through Trustee or
the Indenture Trustee, as the case may be).
Section 7.09. Pass Through Trustee's Representations and Warranties.
The Pass Through Trustee, in its individual capacity (except with respect to
clause (iii) below), represents and warrants as of the date hereof (except as
otherwise provided), as of the Pass Through Closing Date, the Certificate
Closing Date and the Delivery Date that:
(i) it is a national banking association duly organized and validly
existing in good standing under the laws of the United States of America
and has the power and authority to enter into and perform its obligations
under the Pass Through Agreement, the Series Supplements, the Intercreditor
Agreement and this Agreement and to execute and authenticate the Pass
Through Certificates to be delivered on the Pass Through Closing Date;
(ii) the execution, delivery and performance of this Agreement,
the Pass Through Agreement and the Series Supplements and the
performance of its obligations hereunder and thereunder (including the
execution and authentication of the Pass Through Certificates to be
delivered on the Pass Through Closing Date) have been fully authorized
by all necessary corporate action on its part, and, subject to (A) the
registration of the issuance and sale of the Pass Through Certificates
under the Securities Act, (B) compliance with any applicable state
securities laws and (C) the qualification of the Pass Through Agreement
under the Trust Indenture Act, neither the execution and delivery
thereof nor its performance of any of the terms and provisions thereof
will violate any Federal or Utah law or regulation relating to its
banking or trust powers or contravene or result in any breach of, or
constitute any default under its articles of association, or bylaws or
the provisions of any indenture, mortgage, contract or other agreement
to which it is a party or by which it or its properties may be bound or
affected; and
(iii) each of this Agreement and the Pass Through Agreement has
been, and as of the Pass Through Closing Date the Series Supplements
will be, duly executed and delivered by it (in its individual and trust
capacities) and, assuming that each such agreement is the legal, valid
and binding obligation of each other party thereto, is or will be, as
the case may be, the legal, valid and binding obligation of the Pass
Through Trustee (in its individual and trust capacities), enforceable in
accordance with its respective terms except as limited by bankruptcy,
insolvency, moratorium, reorganization or other similar laws or
equitable principles of general application to or affecting the
enforcement of creditors' rights generally (regardless of whether such
enforceability is considered in a proceeding in equity or at law).
Section 7.10. Survival of Representations, Warranties and Covenants.
The representations, warranties and covenants of the Owner Participant, the
Owner Trustee (in its individual or trust capacity), the Pass Through Trustee
(in its individual or trust capacity), the Indenture Trustee (in its
individual or trust capacity) and the Subordination Agent (in its individual
or trust capacity) provided for in this Article 7, and their respective
obligations under any and all of them, shall survive the Closings, the
delivery of the Aircraft and the expiration or other termination of this
Agreement, and the other Operative Agreements.
Section 7.11. Lessee's Assumption of the Certificates. (a) Subject
to compliance by the Lessee with all of its obligations under the Operative
Agreements, each of the Owner Participant, the Owner Trustee, the Indenture
Trustee, the Pass Through Trustee and the Lessee covenants and agrees that if
the Lessee elects to terminate the Lease and to purchase the Aircraft pursuant
to Section 4.02(a)(A), (D) or (E) of the Lease, and so long as no Event of
Default shall have occurred and be continuing then, upon compliance with the
applicable provisions of said Section 4.02(a) of the Lease, the Owner Trustee
will transfer to the Lessee, without recourse or warranty (except as to the
absence of Lessor's Liens attributable to the Owner Trustee) but subject to
the Lien of the Indenture, all of the Owner Trustee's right, title and
interest in and to the Aircraft, and if the Lessee, in connection with such
purchase, elects pursuant to Section 4.02(a)(A), (D) or (E) of the Lease to
assume the obligations of the Owner Trustee to the Indenture Trustee and the
Holders under the Indenture, the Certificates and hereunder, then the Lessee
shall so notify the Indenture Trustee (such notice to be given at least 30 and
not more than 60 days prior to the effective date of such assumption), and
each of the parties shall execute and deliver appropriate documentation
permitting the Lessee to assume such obligations on the basis of full recourse
to the Lessee, maintaining for the benefit of the Holders the security
interest in the Aircraft created by the Indenture, and upon compliance with
the provisions of this Section 7.11 releasing the Owner Participant and the
Owner Trustee from all obligations in respect of the Certificates, the
Indenture, this Agreement and the other Operative Agreements, except any
obligations relating to the period prior to such assumption and take all
such other actions, at the Lessee's expense, as are reasonably necessary to
permit such assumption by the Lessee.
(b) In connection with such assumption:
(i) the Lessee shall execute and deliver an instrument satisfactory
in form and substance to the Indenture Trustee (A) pursuant to which the
Lessee irrevocably and unconditionally assumes and undertakes, with full
recourse to the Lessee, to pay, satisfy and discharge when and as due (at
the stated maturity thereof, by acceleration or otherwise) the principal
of, Make-Whole Premium, if any, interest and all other sums owing on all
Outstanding Certificates (or on the Lessee's substituted obligations) in
accordance with their terms and to punctually perform and observe all of
the covenants and obligations hereunder and under the Indenture and the
Certificates (as the same may be amended in connection with such
assumption) to be performed or observed by the Owner Trustee and (B) which
contains amendments to the Indenture, in form and substance satisfactory to
the Holders and the Indenture Trustee, that incorporate therein such
provisions from the Lease and this Agreement as may be appropriate,
including, without limitation, events of default substantially identical in
scope and effect to those set forth in the Lease and covenants
substantially identical to the covenants of the Lessee hereunder and under
the Lease;
(ii) the instrument referred to in paragraph (i) of this Section
7.11(b), any Uniform Commercial Code financing statements relating thereto,
and any other documents which shall be necessary (or reasonably requested
by the Indenture Trustee) to establish the Lessee's title to and interest
in the Aircraft or to reflect the substitution of the Lessee for the Owner
Trustee under the Operative Agreements or to continue the perfection of the
security interests in the Aircraft and the other rights, Property and
interests included in the Trust Indenture Estate for the benefit of the
Holders (or the Lessee's substituted obligations) shall be filed in such
form, manner and places as are necessary or, in the reasonable opinion of
the Indenture Trustee, advisable for such purpose;
(iii) the Indenture Trustee shall have received an insurance report
dated the effective date of such assumption of an independent insurance
broker and certificates of insurance, each in form and substance
satisfactory to the Indenture Trustee, as to the due compliance as of the
effective date of such assumption with the terms of Article 13 of the Lease
(as it relates to the Indenture Trustee) relating to the insurance with
respect to the Aircraft;
(iv) the Indenture Trustee shall have received evidence that as of
the effectiveness of the assignment on the date of such assumption the
Aircraft is free and clear of all Liens other than the Lien of the
Indenture and other Permitted Liens;
(v) the Indenture Trustee shall have received a certificate from
the Lessee that no Event of Default shall have occurred and be continuing
as of the effective date of such assumption; and
(vi) the Indenture Trustee shall have received (A) from counsel for
the Lessee (who may be the Lessee's General Counsel) a legal opinion, in
form and substance satisfactory to the Indenture Trustee (w) with respect
to the compliance of the assumption contemplated hereby with the terms,
provisions and conditions hereof, (x) with respect to the due
authorization, execution, delivery, validity and enforceability of the
instrument referred to in paragraph (i) of this Section 7.11(b), (y)
with respect to the continued perfection of the first and prior Lien and
security interest in the Aircraft for the benefit of the Holders of the
Certificates (or the Lessee's substituted obligations) referred to in
paragraph (ii) of this Section 7.11(b) and (z) with respect to the
continued availability of the benefits of Section 1110 of the Bankruptcy
Code to the Indenture Trustee for the benefit of the Holders with
respect to the Aircraft after giving effect to such assumption, (B) from
counsel to the Indenture Trustee and Special Aviation Counsel, a legal
opinion comparable to the respective opinions delivered on the
Certificate Closing Date or the Delivery Date, as the case may be, with
such changes therein as may be appropriate in light of such assumption,
and (C) in the case of each opinion described in clause (A) or (B)
above, covering such additional matters as the Indenture Trustee shall
reasonably request.
(c) The Lessee shall pay all reasonable expenses (including
reasonable fees and expenses of counsel) of the Indenture Trustee, the Owner
Trustee, the Pass Through Trustee and the Owner Participant in connection with
such assumption.
Section 7.12. Indebtedness of Owner Trustee. So long as the
Indenture is in effect, the Owner Trustee, not in its individual capacity, but
solely as trustee under the Trust Agreement, shall not incur any indebtedness
for borrowed money except as expressly contemplated herein or in any other
Operative Agreement (excluding the Tax Indemnity Agreement) and shall not
engage in any business or other activity other than the transactions
contemplated herein or in any other Operative Agreement (excluding the Tax
Indemnity Agreement) and all necessary or appropriate activity related
thereto.
Section 7.13. Compliance with Trust Agreement, Etc. Each of the
Owner Participant, SSB and the Owner Trustee agrees with the Lessee, the
Indenture Trustee and the Pass Through Trustee that so long as the Lien of the
Indenture shall be in effect it will (i) comply with all of the terms of the
Trust Agreement applicable to it in its respective capacity, the noncompliance
with which would materially adversely affect any such party and (ii) not take
any action, or cause any action to be taken, to amend, modify or supplement
any other provision of the Trust Agreement in a manner that would materially
adversely affect any such party without the prior written consent of such
party. The Owner Trustee confirms for the benefit of the Lessee, the
Indenture Trustee and the Pass Through Trustee that it will comply with the
provisions of Article 2 of the Trust Agreement. Notwithstanding anything else
to the contrary in the Trust Agreement, so long as the Lease remains in
effect, the Owner Participant agrees not to terminate or revoke the trust
created by the Trust Agreement without the consent of the Lessee. If and so
long as the Indenture shall not have been discharged the consent of the
Indenture Trustee shall also be required prior to any termination or
revocation of such trust and in addition, the Owner Participant will, at the
Lessee's expense, promptly and duly execute and deliver to the Indenture
Trustee such documents and assurances including, without limitation,
conveyances, financing statements and continuation statements with respect to
financing statements and take such further action as the Indenture Trustee may
from time to time reasonably request and furnish in order to protect the
rights and remedies created or intended to be created in favor of the
Indenture Trustee under the Indenture and to create for the benefit of the
Certificate Holders a valid first priority Lien with respect to, and a first
and prior perfected security interest in, the Trust Indenture Estate.
Section 7.14. Subordination Agent's Representations, Warranties and
Covenants. (a) Representations and Warranties. The Subordination Agent
represents and warrants as of the date hereof (except as otherwise provided),
as of the Pass Through Closing Date, the Certificate Closing Date and the
Delivery Date that:
(i) it is a national banking association duly organized and validly
existing in good standing under the laws of the United States of America
and has the corporate power and authority to enter into and perform its
obligations under this Agreement, the Liquidity Facilities and the
Intercreditor Agreement;
(ii) the execution, delivery and performance of this Agreement, each
of the Liquidity Facilities and the Intercreditor Agreement and the
performance of its obligations hereunder and thereunder have been fully
authorized by all necessary corporate action on its part, and, neither the
execution and delivery thereof nor its performance of any of the terms and
provisions thereof will violate any Federal or Utah law or regulation
relating to its banking or trust powers or contravene or result in any
breach of, or constitute any default under its articles of association, or
bylaws or the provisions of any indenture, mortgage, contract or other
agreement to which it is a party or by which it or its properties may be
bound or affected;
(iii) each of this Agreement, the Liquidity Facilities and the
Intercreditor Agreement has been duly executed and delivered by it and,
assuming that each such agreement is the legal, valid and binding
obligation of each other party thereto, is or will be, as the case may be,
the legal, valid and binding obligation of the Subordination Agent,
enforceable in accordance with its respective terms except as limited by
bankruptcy, insolvency, moratorium, reorganization or other similar laws or
equitable principles of general application to or affecting the enforcement
of creditors' rights generally (regardless of whether such enforceability
is considered in a proceeding in equity or at law);
(iv) there are no Taxes payable by the Subordination Agent imposed
by the State of Utah or any political subdivision or taxing authority
thereof in connection with the execution, delivery and performance by
the Subordination Agent of this Agreement, any of the Liquidity
Facilities or the Intercreditor Agreement (other than franchise or other
taxes based on or measured by any fees or compensation received by the
Subordination Agent for services rendered in connection with the
transactions contemplated by the Intercreditor Agreement or any of the
Liquidity Facilities), and there are no Taxes payable by the
Subordination Agent imposed by the State of Utah or any political
subdivision thereof in connection with the acquisition, possession or
ownership by the Subordination Agent of any of the Certificates other
than franchise or other taxes based on or measured by any fees or
compensation received by the Subordination Agent for services rendered
in connection with the transactions contemplated by the Intercreditor
Agreement or any of the Liquidity Facilities);
(v) there are no pending or threatened actions or proceedings
against the Subordination Agent before any court or administrative agency
which individually or in the aggregate, if determined adversely to it,
would materially adversely affect the ability of the Subordination Agent to
perform its obligations under this Agreement, the Intercreditor Agreement
or any Liquidity Facility;
(vi) the Subordination Agent has not directly or indirectly offered
any Certificate for sale to any Person or solicited any offer to acquire
any Certificates from any Person, nor has the Subordination Agent
authorized anyone to act on its behalf to offer directly or indirectly any
Certificate for sale to any Person, or to solicit any offer to acquire any
Certificate from any Person; and the Subordination Agent is not in default
under any Liquidity Facility; and
(vii) the Subordination Agent is not directly or indirectly
controlling, controlled by or under common control with the Owner
Participant, the Owner Trustee, any Underwriter or the Lessee.
(b) Covenants. (i) The Subordination Agent agrees not to amend any
Liquidity Facility without the consent of the Lessee (so long as no Event of
Default shall have occurred and be continuing) and of the Owner Participant
(such consents not to be unreasonably withheld).
(ii) In connection with the deposit in the applicable Cash
Account of amounts drawn pursuant to any Downgrade Drawing under a
Liquidity Facility, the Subordination Agent agrees, so long as no Event of
Default shall have occurred and be continuing, to pay to the Lessee
promptly following each Regular Distribution Date any Investment Earnings
on the amount so deposited which remain after application of such
Investment Earnings pursuant to Section 2.06 of such Liquidity Facility to
the interest payable on such Downgrade Drawing under Section 3.07 of such
Liquidity Facility. Capitalized terms used in this Section shall have the
meanings specified in the Intercreditor Agreement.
ARTICLE 8
TAXES
Section 8.01. Lessee's Obligation to Pay Taxes. (a) Generally. The
Lessee agrees promptly to pay when due, and to indemnify and hold each
Indemnitee harmless from all license, recording, documentary, registration and
other fees and all taxes (including, without limitation, income, gross
receipts, sales, rental, use, value added, property (tangible and intangible),
ad valorem, excise and stamp taxes), fees, levies, imposts, recording duties,
duties, charges, assessments or withholdings of any nature whatsoever,
together with any assessments, penalties, fines, additions to tax or interest
thereon (individually, a "Tax," and collectively called "Taxes"), however
imposed or asserted (whether imposed upon any Indemnitee, the Lessee, all or
any part of the Aircraft, Airframe, any Engine or any Part or the Lessor's
Estate, the Trust Indenture Estate, Rent, the Certificates or otherwise upon
or with respect to any Operative Agreement, any payments thereunder or
otherwise in connection therewith), by any Federal, state or local government
or taxing authority in the United States, or by any government or taxing
authority of a foreign country or of any political subdivision or taxing
authority thereof or by a territory or possession of the United States or an
international taxing authority relating to or measured by:
(i) the construction, mortgaging, financing, refinancing, purchase,
acceptance, rejection, delivery, nondelivery, transport, location, ownership,
registration, reregistration, deregistration, insuring, assembly, possession,
repossession, operation, use, non-use, condition, maintenance, repair,
improvement, conversion, sale, return, abandonment, preparation, installation,
storage, redelivery, replacement, manufacture, leasing, subleasing,
sub-subleasing, modification, alteration, rebuilding, importation, transfer of
title, transfer of registration, exportation or other application or
disposition of, or the imposition of any Lien (or the incurrence of any
liability to refund or pay over any amount as a result of any Lien) on, the
Aircraft, the Airframe, any Engine or any Part or any interest therein;
(ii) amounts payable under the Operative Agreements;
(iii) the Property, or the income or other proceeds received with
respect to the Property attributable to the transactions contemplated by
the Operative Agreements, held by the Owner Trustee under the Trust
Agreement or after an Event of Default under the Lease, or by the Indenture
Trustee under the Indenture;
(iv) otherwise with respect to any Operative Agreement, any
interest therein or by reason of the transactions described in or
contemplated by the Operative Agreements;
(v) the principal or interest or other amounts payable with respect
to the Certificates;
(vi) the Pass Through Certificates or the Certificates or the
issuance, sale, acquisition, reoptimization, or refinancing thereof or the
beneficial interests in the Trust Estate or the Trust Indenture Estate or
the creation thereof under the Trust Agreement or the Indenture, or the
security interest created or perfected thereby or by any filing thereof;
(vii) any assumption by the Lessee pursuant to Section 7.11 of this
Agreement and Section 2.12 of the Indenture;
(viii) the Aircraft, the Airframe, any Engine or any Part; or
(ix) the rentals (including Basic Rent, Renewal Rent and
Supplemental Rent), receipts or earnings arising from the Operative
Agreements.
(b) Exceptions. The indemnity provided for in Section 8.01(a) shall
not extend to any of the following:
(i) With respect to an Indemnitee, Taxes based upon, measured by or
with respect to the net or gross income, items of tax preference or minimum
tax or excess profits, receipts, value-added taxes, capital, franchise, net
worth (whether denominated income, excise, capital stock, or doing
business taxes) or other similarly-based taxes (other than sales, use,
transfer, rental, ad valorem, stamp, property, or similar taxes) ("Income
Taxes"), provided, however, that this clause (i) shall not exclude from the
indemnity described in Section 8.01(a) above any such Income Taxes to the
extent such taxes are imposed by any jurisdiction in which the Indemnitee
would not be subject to such taxes but for, or would be subject to such
taxes solely as a result of, (x) the operation, registration, location,
presence, or use of the Aircraft, Airframe, any Engine or any Part thereof,
in such jurisdiction or (y) the place of incorporation or principal office
or the activities of the Lessee or any sublessee in such jurisdiction (it
being understood that (A) any such indemnity would be payable only to the
extent of the net harm incurred by the Indemnitee from such Income Taxes,
taking into account any incremental current Tax benefit in another tax
jurisdiction resulting from payment of such Income Taxes and (B) this
sentence would require indemnification in a jurisdiction in which the
Indemnitee is already subject to an Income Tax (an "Existing Income Tax")
only if an event set forth in Clause (x) or (y) of this sentence causes the
Indemnitee to be subject to an Income Tax in that jurisdiction (a "New
Income Tax") other than an Existing Income Tax, and such New Income Tax
would have been imposed even if the activities contemplated by the
Operative Agreements were the Indemnitee's sole nexus to the jurisdiction);
provided, further, that the provisions of this paragraph (b)(i) relating to
Income Taxes shall not exclude from the indemnity described in Section
8.01(a) hereof any Income Taxes for which the Lessee would be required to
indemnify an Indemnitee (x) so that any payment under the Operative
Agreements, otherwise required to be made on an After-Tax Basis, is made on
an After-Tax Basis or (y) pursuant to the last sentence of Section 8.02,
8.05, 9.02 or 9.05 of this Agreement;
(ii) [Reserved];
(iii) Taxes imposed with respect to the Aircraft and arising out
of or measured by acts, omissions, events or periods (or any combination
of the foregoing) which occur after the later of (A) the payment in full
of all amounts payable by the Lessee pursuant to and in accordance with
the Operative Agreements, or the earlier discharge in full of the
Lessee's payment obligations under and in accordance with the Lease and
the Operative Agreements, and (B) the earliest of (x) the expiration of
the Term of the Lease and return of the Aircraft in accordance with
Article 12 of the Lease, (y) the termination of the Lease in accordance
with the applicable provisions of the Lease and return of the Aircraft
in accordance with the Lease, or (z) the termination of the Lease in
accordance with the applicable provisions of the Lease and the transfer
of all right, title and interest in the Aircraft to the Lessee pursuant
to its exercise of any of its purchase options set forth in Section
4.02(a) of the Lease, provided that this exclusion (iii) shall not apply
in respect of any payment made after the dates set forth in clauses (A)
and (B) above unless such payment is made with respect to any event or
circumstance occurring on, with or prior to such return or transfer or
period prior to such return or transfer, or Taxes incurred in connection
with the exercise of any remedies pursuant to Article 17 of the Lease
following the occurrence of an Event of Default;
(iv) As to the Owner Trustee, Taxes imposed against the Owner
Trustee upon or with respect to any fees for services rendered in its
capacity as Owner Trustee under the Trust Agreement or, as to the
Indenture Trustee, Taxes imposed against the Indenture Trustee upon or
with respect to any fees received by it for services rendered in its
capacity as Indenture Trustee under the Indenture;
(v) Taxes imposed on an Indemnitee that would not have been imposed
but for the willful misconduct or gross negligence of such Indemnitee
(other than gross negligence or willful misconduct not actually committed
by but instead imputed to such Indemnitee by reason of such Indemnitee's
participation in the transactions contemplated by the Operative Agreements)
or the breach by such Indemnitee of: (i) in the case of an Indemnitee other
than the Owner Participant, any representation, warranty or covenant
contained in the Operative Agreements or any document delivered in
connection therewith and (ii) in the case of the Owner Participant, the
representations or covenants in Sections 7.02(a), (c); 7.03(a)(i), (ii),
(iii), (iv), (vii), (ix); and 7.03(b), (c), (d), (e) of this Agreement (in
either case unless attributable to a breach of representation, warranty or
covenant of the Lessee);
(vi) Taxes imposed on, and not collected by withholding from
payments of Rent, the Owner Trustee or the Owner Participant or any
successor, assign or Affiliate thereof which became payable by reason of
any voluntary or involuntary transfer or disposition by such Indemnitee
subsequent to the Delivery Date, including revocation of the Trust, of any
interest in some or all of the Aircraft, Airframe, Engines or Parts thereof
or its interest in the Lessor's Estate (not including any transfers of any
Certificates pursuant to Section 15.01(a) hereof) or a disposition in
connection with a bankruptcy or similar proceedings involving either the
Lessor or the Owner Participant other than (A) transfers resulting from a
loss, substitution or modification of the Aircraft, Engines or any Part,
(B) any transfer of the Aircraft, Engines or any Part (in each case other
than at Fair Market Value) to the Lessee or other person in possession
thereof, (C) transfers attributable to an Event of Default or (D) a
transfer pursuant to the Lessee's exercise of its rights under Section
10.01 of the Lease; the parties agree to cooperate to minimize any such
Taxes covered by this provision;
(vii) Taxes imposed on the Owner Participant for which the Lessee is
obligated to indemnify the Owner Participant pursuant to the Tax Indemnity
Agreement;
(viii) Taxes imposed on a successor, assign or other transferee
of the Owner Participant or the Owner Trustee that is not a U.S. Person
or an Indemnitee as of the date hereof under the Operative Agreements
(including, without limitation, a transferee which is a new lending
office of an original Indemnitee) which on the Certificate Closing Date
is an Indemnitee (for purposes of this clause (viii), an "original
Indemnitee") or such original Indemnitee to the extent that such Taxes
exceed the amount of Taxes that would have been imposed and would have
been indemnifiable pursuant to Section 8.01(a) hereof had there not been
a succession, assignment or other transfer by such original Indemnitee
of any such interest of such Indemnitee in the Aircraft or any Part, any
interest in or under any Operative Agreement, or any proceeds thereunder
(it being understood that for purposes of determining the amount of
indemnification that would have been due to such original Indemnitee
with respect to a net income Tax, it shall be assumed that such original
Indemnitee would be subject to taxation on its income at the highest
marginal statutory rate applicable to it), provided, however, that the
exclusion provided by this clause (viii) shall not apply in the case of
a succession, transfer or disposition (A) that occurs after the Lease
has been declared in default or if such transfer or disposition is
pursuant to the exercise of remedies under Article 17 of the Lease, (B)
which is an actual or deemed transfer pursuant to Section 7.11 hereof or
as a consequence of a Refinancing under Section 15.01 hereof, or any
actual or deemed transfer of a Certificate that as part of a Refinancing
under Section 15.01 hereof is not retired, but only to the extent the
Taxes attributable to such transfer exceed the amount of Taxes that
would have been imposed on such transferor if the debt had instead been
retired, (C) to the extent necessary to make payments with respect to
such Taxes on an After-Tax Basis, (D) to the extent such Taxes are
directly attributable to the failure of the Lessee to take
administrative actions as have been reasonably requested of it in
writing in a timely manner and which will result in no after-tax cost or
expense to the Lessee or (E) in the case of the Owner Participant or the
Lessor, to any Tax other than an Income Tax;
(ix) [Reserved];
(x) Any Taxes which have been included in the Purchase Price and
which have been paid to the applicable taxing authorities;
(xi) Any Taxes which would not have been imposed but for a Lessor's
Lien or an Indenture Trustee's Lien; and
(xii) Any Taxes imposed on the Owner Participant arising under or in
connection with any prohibited transaction, within the meaning of Section
406 of ERISA or Section 4975(c)(1) of the Code ("Prohibited Transaction");
provided, however, that in the event any prohibited transaction arises
which is not exempt under any class prohibited transaction exemption or any
individual or statutory prohibited transaction exemption (individually or
collectively, a "PTE") then the indemnity provided for herein shall extend
to any Taxes incurred by the Owner Participant (or any Affiliate thereof)
as the result of any Prohibited Transaction arising out of the purchase or
holding of any Loan Certificates by an employee benefit plan subject to
Title I of ERISA or by a plan subject to Section 4975 of the Code
(individually or collectively, an "ERISA Plan") with respect to which the
Owner Participant is a party in interest, within the meaning of Section
3(14) of ERISA, or a disqualified person,within the meaning of Section 4975
of the Code, except, however, that such Indemnity shall not extend to any
Taxes incurred by the Owner Participant (or any Affiliate thereof) as the
result of any Prohibited Transaction occurring with respect to the purchase
or holding of any Loan Certificates (A) over which purchase or holding the
Owner Participant (or an Affiliate thereof) has discretion or control
(other than in the capacity of a custodian, directed trustee or other
similar nondiscretionary capacity), or (B) by an ERISA Plan with respect to
which the Owner Participant (or any Affiliate thereof) is a "plan sponsor"
within the meaning of Section 3(16)(B) of ERISA.
(c) Withholding. The Pass Through Trustee shall withhold any Taxes
required to be withheld on payments to any holder of a Pass Through
Certificate who is a Non-U.S. Person except to the extent that such a holder
of a Pass Through Certificate has furnished evidence to the Pass Through
Trustee sufficient under applicable law to entitle such holder of a Pass
Through Certificate to any exemption from or reduction in the rate of
withholding on interest claimed by such holder of a Pass Through Certificate.
The Indenture Trustee shall withhold any Taxes required to be withheld on any
payment to a Holder pursuant to Section 5.09 of the Indenture. If the
Indenture Trustee or the Pass Through Trustee fails to withhold a Tax required
to be withheld with respect to any Holder of a Certificate or any holder of a
Pass Through Certificate or any claim is otherwise asserted by a taxing
authority against the Owner Trustee or Owner Participant for any withholding
tax, the Lessee will indemnify the Owner Trustee and the Owner Participant
(without regard to the exclusions set forth in Section 8.01(b) hereof) on an
After-Tax Basis against any such Taxes required to be withheld and any
interest and penalties with respect thereto, along with any other costs
(including reasonable attorney's fees) incurred in connection with any such
claim. The Indenture Trustee or the Pass Through Trustee, as the case may be,
in its individual capacity (and without recourse to the Trust Indenture
Estate), shall indemnify the Lessee (without regard to the exclusions set
forth in Section 8.01(b) hereof) on an After-Tax Basis for any payment the
Lessee shall have made pursuant to the preceding sentence.
Section 8.02. After-Tax Basis. The amount which the Lessee shall be
required to pay with respect to any Tax indemnified against under Section 8.01
shall be an amount sufficient to restore the Indemnitee, on an After-Tax
Basis, to the same position such party would have been in had such Tax not
been incurred, provided that the calculation of any additional amounts owing
to any Indemnitee as a result of the Lessee's obligation to indemnify on an
After-Tax Basis shall be made without regard to the exclusions set forth in
Section 8.01(b). If any Indemnitee actually realizes a tax benefit by
reason of the payment of any Tax paid or indemnified against by the Lessee,
such Indemnitee shall promptly pay to the Lessee, to the extent such tax
benefit was not previously taken into account in computing such payment,
but not before the Lessee shall have made all payments then due to such
Indemnitee under this Agreement, the Tax Indemnity Agreement and any other
Operative Agreement, an amount equal to the lesser of (x) the sum of such
tax benefit plus any other tax benefit actually realized by such Indemnitee
that would not have been realized but for any payment made by such
Indemnitee pursuant to this sentence and not already paid to the Lessee,
and (y) the amount of the payment made under Section 8.01 hereof and this
Section 8.02 by the Lessee to such Indemnitee plus the amount of any other
payments by the Lessee to such Indemnitee theretofore required to be made
under this Section 8.02 and Sections 8.01 and 8.05 hereof (and the excess,
if any, of the amount described in clause (x) above over the amount
described in clause (y) above shall be carried forward and applied to
reduce pro tanto any subsequent obligations of the Lessee to make payments
to such Indemnitee pursuant to Section 8.01 hereof); provided, however,
that notwithstanding the foregoing portions of this sentence, such
Indemnitee shall not be obligated to make any payment to the Lessee
pursuant to this sentence as long as an Event of Default shall have
occurred and be continuing under the Lease. The Lessee shall reimburse on
an After-Tax Basis such Indemnitee (and without regard to Section 8.01(b)
hereof, except for clause (v) thereof) for any payment of a tax benefit
pursuant to the preceding sentence (or a tax benefit otherwise taken into
account in calculating the Lessee's indemnity obligation hereunder) to the
extent that such tax benefit is subsequently disallowed or reduced
(including the expiration of any tax credit carryovers or carrybacks of
such Indemnitee that would not otherwise have expired).
Section 8.03. Time of Payment. Any amount payable to an Indemnitee
pursuant to this Article 8 shall be paid promptly, but in any event within 30
days after receipt of a written demand therefor from such Indemnitee
accompanied by a written statement describing in reasonable detail the basis
for such indemnity and the computation of the amount so payable, provided that
in the case of amounts which are being contested by the Lessee in good faith
or by the Indemnitee in either case pursuant to Section 8.04 hereof, such
amount shall be payable within 30 days after the time such contest is finally
resolved.
Section 8.04. Contests. If a written claim is made against any
Indemnitee for Taxes with respect to which the Lessee is liable for a payment
or indemnity hereunder, such Indemnitee shall promptly (but in any event
within 30 days of receipt thereof) give the Lessee notice in writing of such
claim and shall furnish the Lessee with copies of any written requests for
information sent to such Indemnitee (and not the Lessee) from any taxing
authority to the extent relating to such Taxes with respect to which the
Lessee may be required to indemnify hereunder and with respect to which it
would be necessary or beneficial to have information provided by the Lessee;
provided, however, that the failure of an Indemnitee to give such notice or
furnish such copy shall not terminate any of the rights of such Indemnitee
under this Article 8, except to the extent that the Lessee's contest rights
have been materially and adversely impaired by the failure to provide such
notice or copy. The Lessee may, at its option, contest in its own name or, if
required by law, require the Indemnitee to contest in good faith, with due
diligence and at the Lessee's expense, if timely requested in writing by the
Lessee, the validity, applicability or amount of such Taxes by:
(i) resisting payment thereof if lawful and practicable or not
paying the same except under protest if protest is necessary and proper in
each case so long as non-payment will not result in a material risk of the
sale, forfeiture or loss of, or the creation of a Lien other than a
Lessor's Lien on the Aircraft, Airframe or any Engine or any risk of
criminal liability; or
(ii) if the payment be made, using reasonable efforts to obtain a
refund thereof in appropriate administrative and judicial proceedings.
Notwithstanding the foregoing, the Lessee shall not be permitted or entitled
to contest any such Tax in its own name unless the Tax is reflected in a
report or a return of the Lessee or raised in an audit or other proceeding of
the Lessee and the Lessee is allowed to directly contest such Tax under
applicable law of the taxing jurisdiction provided, that if the Lessee is so
permitted under applicable law to contest a Tax asserted against the Lessee
and the same or similar Tax is also asserted against the Indemnitee, each of
the Lessee and such Indemnitee shall conduct its contest in its own name and
the Lessee and such Indemnitee will cooperate in a reasonable manner with
respect to the respective contests of such Tax.
If the Indemnitee, after reasonable discussion with the Lessee and
consideration in good faith of any suggestion made by the Lessee as to the
method of pursuing such contest, elects to conduct the contest, such
Indemnitee shall control the contest and shall determine the manner in which
to contest such Taxes and shall periodically or upon the Lessee's request
advise the Lessee of the progress of such contest; provided, however, that the
Lessee shall have the right to be consulted in good faith with respect to any
contest of claims subject to indemnification hereunder, including governmental
and judicial conferences and the right to be consulted in good faith regarding
the relevant portions of all related submissions to any governmental or other
authority, provided, however, that the Lessee shall be permitted to
participate in any such contest only (x) with respect to issues that can be
separated on audit from any Taxes for which the Lessee is not required to
indemnify the Indemnitee hereunder, and (y) if the Indemnitee shall have
determined that in its judgment, exercised in its sole discretion, neither
such participation nor the separation of issues will adversely affect the
Indemnitee. The Indemnitee will not settle a contest that results in a final
determination without consent of the Lessee, unless the Indemnitee waives its
right to indemnification with respect to such contest and any related contest.
Notwithstanding the preceding sentences of this Section 8.04, such Indemnitee
shall not be required to take or continue any action unless the Lessee shall
have (i) agreed in writing to pay and shall pay the Indemnitee on a current
basis and on an After-Tax Basis the after-tax cost of all reasonable fees and
expenses (including reasonable attorneys' fees and accountants' fees) which
such Indemnitee may incur as a result of contesting such Taxes, (ii) made all
payments and indemnities (other than contested payments and indemnities) then
due to the Indemnitee hereunder or with respect to any of the transactions
contemplated by or under the Operative Agreements and (iii) acknowledged in
writing the Lessee's obligation to such Indemnitee pursuant to this Agreement
to the extent that the contest is not successful, unless it is reasonably
clear from the resolution of the contest that an exclusion set forth in
Section 8.01(b) hereof applies. In no event shall such Indemnitee be required
or the Lessee be permitted to contest pursuant to this Section 8.04 the
imposition of any Tax for which the Lessee is obligated to indemnify any
Indemnitee hereunder unless (i) such Indemnitee shall have received, at the
Lessee's expense, an opinion of its tax counsel, such counsel to be reasonably
satisfactory to the Lessee ("Tax Counsel"), to the effect that there exists a
reasonable basis for contesting such claim, (ii) such Indemnitee (and, if such
Indemnitee is not the Owner Participant, the Owner Participant and such
Indemnitee) shall have determined that such contest will not result in any
material risk of loss, sale or forfeiture of, or the creation of a Lien (other
than Lessor's Liens) on, the Aircraft or any part thereof or interest thereon
or in a risk of criminal liability, or adversely affect the Trust Indenture
Estate, (iii) if a Payment Default, Bankruptcy Default or an Event of Default
shall have occurred and be continuing, the Lessee shall have provided security
for its obligations hereunder reasonably satisfactory to the Indemnitee, (iv)
if such contest shall be conducted in a manner requiring payment of the claim
in advance, the Lessee shall have advanced sufficient funds, on an interest
free basis, to make the payment required, and agreed to indemnify the
Indemnitee against any additional net adverse tax consequences on an After-Tax
Basis to such Indemnitee of such advance, (v) the issue shall not be the same
as an issue previously contested hereunder and decided adversely, unless the
Indemnitee shall have received at the Lessee's sole expense, a written
opinion, in form and substance reasonably satisfactory to such Indemnitee, of
Tax Counsel to the effect that the applicable circumstances or law has changed
and that in light thereof, there is substantial authority for contesting such
claim and (vi) the amount of the indemnity payments the Lessee would be
required to make with respect to such adjustment, when aggregated with similar
adjustments that could be raised in other taxable years of such Indemnitee
exceeds $50,000; provided, that in the event that such Indemnitee is not
required under this paragraph to contest any Tax liability for which the
Lessee is obligated to indemnify any Indemnitee, the Lessee may contest such
Tax liability in the name of the Lessee, if permitted by law. The Lessee may
appeal or require the Indemnitee to appeal any judicial decision provided the
foregoing requirements of this Section 8.04 are met and the Indemnitee shall
have received, at the Lessee's expense, an opinion of Tax Counsel, to the
effect that there is substantial authority for such appeal.
Nothing contained in this Section 8.04 shall require any
Indemnitee to contest or continue to contest, or permit Lessee to contest,
a claim which such Indemnitee would otherwise be required to contest
pursuant to this Section 8.04, if such Indemnitee shall waive payment by
Lessee of any amount that might otherwise be payable by Lessee under this
Article 8 in connection with such claim.
Section 8.05. Refunds. Upon receipt by an Indemnitee of a refund of
all or any part of any Taxes which the Lessee shall have paid for such
Indemnitee or for which the Lessee shall have reimbursed or indemnified such
Indemnitee, and provided there shall not have occurred and be continuing any
Payment Default, Bankruptcy Default or Event of Default by the Lessee
hereunder or under the Lease (in which case payment shall not be made to the
Lessee until such Payment Default, Bankruptcy Default or Event of Default
shall have been cured), such Indemnitee shall pay to the Lessee an amount
equal to the amount of such refund less (x) any expenses not previously
reimbursed, (y) all payments then due to such Indemnitee under this Article
8 and (z) Taxes imposed with respect to the accrual or receipt thereof,
including interest received attributable thereto, plus any tax benefit
actually realized by such Indemnitee as a result of any payment by such
Indemnitee made pursuant to this sentence; provided, however, that such amount
shall not be payable (a) before such time as the Lessee shall have made all
payments or indemnities then due and payable to such Indemnitee under this
Article 8 and (b) to the extent that the amount of such payment would exceed
(i) the amount of all prior payments by the Lessee to such Indemnitee pursuant
to this Article 8 less (ii) the amount of all prior payments by such
Indemnitee to the Lessee pursuant to this Article 8.
Any subsequent loss of such refund or tax benefit shall be treated as
a Tax subject to indemnification under the provisions of this Article 8 (in
the case of any such tax benefit, without regard to Section 8.01(b) hereof).
Section 8.06. Lessee's Reports. In case any report or return is
required to be made with respect to any Taxes against which the Lessee is or
may be obligated to indemnify the Indemnitees under this Article 8, the Lessee
shall make such report or return, except for any such report or return that
the Indemnitee has notified the Lessee that it intends to file, in such manner
as will show the ownership of the Aircraft in the Owner Trustee and shall send
a copy of the applicable portions of such report or return to the Indemnitee
and the Owner Trustee or will notify the Indemnitee of such requirement and
make such report or return in such manner as shall be satisfactory to such
Indemnitee and the Owner Trustee. The Lessee will provide such information
reasonably available to the Lessee as the Indemnitee may reasonably require
from the Lessee to enable the Indemnitee to fulfill its tax filing
requirements with respect to the transactions contemplated by the Operative
Agreements (without duplication of the requirements of Section 3 of the Tax
Indemnity Agreement) and any audit information request arising from any such
filing. The Indemnitee will provide such information reasonably available to
it as the Lessee may reasonably require from such Indemnitee to enable the
Lessee to fulfill its tax filing requirements with respect to the transactions
contemplated by the Operative Agreements and any audit information request
arising from such filing; provided that in no event shall any Indemnitee be
required to provide copies of any of its tax returns or other confidential
information. The Lessee shall hold the Indemnitee harmless on an After-Tax
Basis from and against any liabilities, including penalties, additions to tax,
fines and interest, imposed upon or incurred by such Indemnitee to the extent
directly attributable to any insufficiency or inaccuracy in any return,
statement, or report prepared by the Lessee or information supplied by the
Lessee, or directly attributable to the Lessee's failure to supply reasonably
available information to such Indemnitee as required by this Section 8.06.
Section 8.07. Survival of Obligations. The representations,
warranties, indemnities and agreements of the Lessee provided for in this
Article 8 and the Lessee's obligations under any and all of them shall survive
the expiration or other termination of the Operative Agreements.
Section 8.08. Payment of Taxes. With respect to any Tax otherwise
indemnifiable hereunder by the Lessee and applicable to the Aircraft,
Airframe, any Engine or Parts, to the extent permitted by the applicable
federal, state, local or foreign law, the Lessee shall pay such tax directly
to the relevant Taxing authority and file any returns or reports required with
respect thereto to the extent legally entitled to do so in its own name;
provided, however, that the Lessee shall not make any statements or take any
action which would indicate that the Lessee or any Person other than the Owner
Trustee or Owner Participant is the owner of the Aircraft, the Airframe, any
Engine or any Part or which would otherwise be inconsistent with the terms of
the Lease or the Tax Indemnity Agreement and the position thereunder of the
Owner Trustee and the Owner Participant. Copies of such returns or reports,
together with evidence of payment of any tax due, shall be sent by the Lessee
to the Owner Participant within thirty (30) days after the date of each
payment by the Lessee of any Tax.
Section 8.09. Reimbursements by Indemnitees Generally. To the
extent the Lessee is required to pay or withhold any Tax imposed on or with
respect to an Indemnitee in respect of the transactions contemplated by the
Operative Agreements, which Tax is not otherwise the responsibility of the
Lessee under the Operative Agreements, or any other written agreements between
the Lessee and such Indemnitee, then such Indemnitee shall pay to the Lessee
within 30 days of the Lessee's demand therefor an amount which equals the
amount actually paid by the Lessee with respect to such Taxes.
Section 8.10. Special Indemnity. Notwithstanding anything in this
Article 8 to the contrary, the Lessee shall hold the Owner Participant
harmless on an After-Tax Basis from any Taxes or losses arising from or in
connection with the transactions contemplated by Section 17.02 hereof.
ARTICLE 9
GENERAL INDEMNITY
Section 9.01. Generally. (a) The Lessee agrees to indemnify each
Indemnitee against and agrees to protect, defend, save and keep harmless each
Indemnitee from any and all liabilities, obligations, losses, damages,
penalties, claims, actions, suits, costs, disbursements and expenses
(including legal fees and expenses and all costs and expenses relating to
amendments, supplements, adjustments, consents, refinancings and waivers under
the Operative Agreements except as otherwise provided in Section 10.01(c)(i)
or Article 15 hereof) of every kind and nature, including without limitation
Make-Whole Premium (unless excluded pursuant to Section 3.03 of the Lease)
(whether or not any of the transactions contemplated by this Agreement are
consummated) (individually, an "Expense," collectively, "Expenses"), which
may be imposed on, incurred or suffered by or asserted against any Indemnitee,
in any way relating to, based on or arising out of:
(i) this Agreement (including, without limitation, the execution,
delivery and performance hereof by the Owner Participant prior to the
delivery of the Aircraft), the Lease, the Indenture, the Trust Agreement,
the Intercreditor Agreement, the Liquidity Facilities, the Pass Through
Agreement, AVSA's FAA Bill of Sale, AVSA's Warranty Bill of Sale or any
other Operative Agreement or any other document entered into in connection
herewith or any sublease or transfer or any transactions contemplated
hereby or thereby;
(ii) the operation, possession, use, non-use, maintenance, storage,
overhaul, delivery, non-delivery, control, repair or testing of the
Aircraft, Airframe, or any Engine or any engine used in connection with the
Airframe, or any part thereof by the Lessee, any sublessee or any other
Person whatsoever, whether or not such operation, possession, use, non-use,
maintenance, storage, overhaul, delivery, non-delivery, control, repair or
testing is in compliance with the terms of the Lease, including without
limitation, claims for death, personal injury or property damage or other
loss or harm to any Person whatsoever, including, without limitation, any
passengers, shippers or other Persons wherever located, and claims relating
to any laws, rules or regulations, including, without limitation,
environmental control, noise and pollution laws, rules or regulation;
(iii) the manufacture, design, sale, return, purchase, acceptance,
rejection, delivery, non-delivery, condition, repair, modification,
servicing, rebuilding, airworthiness, registration, reregistration, import,
export, performance, non-performance, lease, sublease, transfer,
merchantability, fitness for use, alteration, substitution or replacement
of any Airframe, Engine, or Part under the Lease, the Purchase Agreement,
the Purchase Agreement Assignment, the GTA or the Engine Warranty
Assignment or other transfer of use or possession, or other disposition of
the Aircraft, the Airframe, any Engine or any Part including, without
limitation, latent and other defects, whether or not discoverable, strict
tort liability, and any claims for patent, trademark or copyright
infringement;
(iv) any breach of or failure to perform or observe, or any other
non-compliance with, any condition, covenant or agreement to be performed,
or other obligations of the Lessee under any of the Operative Agreements,
or the falsity or inaccuracy of any representation or warranty of the
Lessee in any of the Operative Agreements (other than representations and
warranties in the Tax Indemnity Agreement);
(v) the Collateral Account and the Liquid Collateral;
(vi) the enforcement of the terms of the Operative Agreements and
the administration of the Trust Indenture Estate; and
(vii) the offer, issuance, sale or delivery of any Certificate or any
Pass Through Certificate, or any refunding or refinancing thereof, or
interest in the Lessor's Estate or the Trust Agreement or any similar
interest or in any way relating to or arising out of the Trust Agreement
and the Lessor's Estate, the Indenture or the Trust Indenture Estate
(including, without limitation, any claim arising out of the Securities Act
of 1933, as amended, the Securities Exchange Act of 1934, as amended, or
any other federal or state statute, law or regulation, or at common law or
otherwise relating to securities), or the action or inaction of the Owner
Trustee or Indenture Trustee as trustees, in the manner contemplated by
this Agreement, the Indenture, the Indenture and Security Agreement
Supplement or the Trust Agreement and in the case of the Owner Participant,
its obligations arising under Section 6.01 of the Trust Agreement.
The foregoing indemnity by the Lessee is intended to include and cover, but is
not limited to, any Expense to which the Indemnitees may be subject as a
result of their respective ownership or leasing of any interest in or holding
of any Lien on the Aircraft, Airframe, any Engine or Part during the Term,
whether or not in the Lessee's possession or control, insofar as such Expense
relates to any activity or event whatsoever involving such item while it is
under lease to the Lessee (or after termination of the Lease in connection
with the exercise of remedies thereunder to the extent that such Expense is
attributable to the transactions contemplated hereby and by the other
Operative Agreements), and such Expense does not fall within any of the
exceptions listed in Section 9.01(b) hereof.
(b) Exceptions. The indemnity provided for in Section 9.01(a) shall
not extend to any Expense of any Indemnitee to the extent it:
(i) would not have occurred but for the willful misconduct or gross
negligence of such Indemnitee;
(ii) after the Delivery Date, is in respect of the Aircraft, and is
attributable to acts or events which occur after the Aircraft is no longer
part of the Lessor's Estate or, if the Aircraft remains a part of the
Lessor's Estate, after the expiration of the Term (unless the Aircraft is
being returned at such time, in which case after return of physical
possession; provided that if the Lease has been terminated pursuant to
Article 17 thereof, the indemnity provided in Section 9.01(a) hereof shall
survive for so long as Lessor or the Indenture Trustee shall be exercising
remedies under such Article 17), or to acts or events which occur after
return of possession of the Aircraft by the Lessee in accordance with the
provisions of the Lease (subject to the foregoing proviso if the Lessor has
terminated the Lease pursuant to Article 17 of the Lease) but in any such
case only to the extent not fairly attributable to acts or omissions of the
Lessee prior to expiration of the Term, including without limitation the
Lessee's failure to fully discharge all of its obligations under the Lease
or the other Operative Agreements;
(iii) is a Tax, whether or not the Lessee is required to indemnify
therefor pursuant to Article 8 hereof or pursuant to the Tax Indemnity
Agreement;
(iv) is a cost or expense required to be paid by the Owner
Participant or its permitted transferees (and not by the Lessee) pursuant
to this Agreement or any other Operative Agreement and for which the Lessee
is not otherwise obligated to reimburse the Owner Participant, directly or
indirectly pursuant to the terms of this Agreement or such other Operative
Agreement;
(v) would not have been incurred by such Indemnitee if such
Indemnitee had not been in breach of its representations or warranties, or
had not defaulted in the observance and performance of the terms and
provisions required to be observed and performed by it, in this Agreement,
the Purchase Agreement Assignment, the Lease, the Indenture, the Trust
Agreement or any other Operative Agreement to which it is a party unless
such breach or default shall be a result of the breach or default by the
Lessee of any of its obligations under the Operative Agreements or by
another Indemnitee of any of the foregoing;
(vi) [reserved];
(vii) is, in the case of the Owner Participant, Lessor's Liens to the
extent attributable to the Owner Participant; in the case of the Owner
Trustee, Lessor's Liens to the extent attributable to the Owner Trustee; in
the case of SSB, Lessor's Liens to the extent attributable to SSB; and in
the case of the Indenture Trustee, Indenture Trustee's Liens;
(viii) is, in the case of the Owner Participant or the Owner Trustee,
attributable to the offer or sale by such Indemnitee after the Certificate
Closing Date of any interest in the Aircraft, the Lessor's Estate or the
Trust Agreement or any similar interest (including an offer or sale
resulting from bankruptcy or other proceedings for the relief of debtors in
which such Indemnitee is the debtor), unless in each case such offer or
sale shall occur (x) in connection with a Refinancing, (y) as a result of
the occurrence of an Event of Default provided that either the Lease has
been declared in default or the transfer is pursuant to the exercise of
remedies under Article 17 of the Lease or (z) in connection with the
Lessee's exercise of its early termination option under Article 10 of the
Lease or its purchase options under Article 4 of the Lease or in connection
with Article 11 of the Lease;
(ix) is an Expense arising under or in connection with any
prohibited transaction, within the meaning of Section 406 of ERISA or
Section 4975(c)(1) of the Code ("Prohibited Transaction"); provided,
however, that in the event any prohibited transaction arises which is
not exempt under any class prohibited transaction exemption or any
individual or statutory prohibited transaction exemption (individually
or collectively, a "PTE") then the indemnity provided for herein shall
extend to any Expenses incurred by the Owner Participant (or any
Affiliate thereof) as the result of any Prohibited Transaction arising
out of the purchase or holding of any Certificates by an employee
benefit plan subject to Title I of ERISA or by a plan subject to Section
4975 of the Code (individually or collectively, an "ERISA Plan") with
respect to which the Owner Participant is a party in interest, within
the meaning of Section 3(14) of ERISA, or a disqualified person,within
the meaning of Section 4975 of the Code, except, however, that such
Indemnity shall not extend to any Expenses incurred by the Owner
Participant (or any Affiliate thereof) as the result of any Prohibited
Transaction occurring with respect to the purchase or holding of any
Certificates (A) over which purchase or holding the Owner Participant
(or an Affiliate thereof) has discretion or control (other than in the
capacity of a custodian, directed trustee or other similar
nondiscretionary capacity), or (B) by an ERISA Plan with respect to
which the Owner Participant (or any Affiliate thereof) is a "plan
sponsor" within the meaning of Section 3(16)(B) of ERISA.
Section 9.02. After-Tax Basis. The amount which the Lessee shall be
required to pay with respect to any Expense indemnified against under Section
9.01 shall be an amount sufficient to restore the Indemnitee, on an After-Tax
Basis, to the same position such party would have been in had such Expense not
been incurred. If any Indemnitee actually realizes a permanent Tax benefit by
reason of the payment of such Expense paid or indemnified against by the
Lessee which was not considered in the computation thereof, such Indemnitee
shall promptly pay to the Lessee, but not before the Lessee shall have made
all payments theretofore due such Indemnitee under this Agreement, the Tax
Indemnity Agreement and any other Operative Agreement, an amount equal to the
lesser of (x) the sum of such Tax benefit plus any other permanent Tax benefit
actually realized by such Indemnitee as the result of any payment made by such
Indemnitee pursuant to this sentence and (y) the amount of such payment
pursuant to this Section 9.02 by the Lessee to such Indemnitee plus the amount
of any other payments by the Lessee to such Indemnitee theretofore made
pursuant to this Section 9.02 less the amount of any payments by such
Indemnitee to the Lessee theretofore made pursuant to this Section 9.02 (and
the excess, if any, of the amount described in clause (x) above over the
amount described in clause (y) above shall be carried forward and applied to
reduce pro tanto any subsequent obligations of the Lessee to make payments to
such Indemnitee pursuant to this Section 9.02), it being intended that no
Indemnitee should realize a net Tax benefit pursuant to this Section 9.02
unless the Lessee shall first have been made whole for any payments by it to
such Indemnitee pursuant to this Section 9.02; provided, however, that
notwithstanding the foregoing portions of this sentence, such Indemnitee shall
not be obligated to make any payment to the Lessee pursuant to this sentence
so long as an Event of Default shall have occurred and be continuing. Any
Taxes that are imposed on any Indemnitee as a result of the disallowance or
reduction of such Tax benefit referred to in the next preceding sentence in a
taxable year subsequent to the year of allowance and utilization by such
Indemnitee (including the expiration of any tax credit carryovers or
carrybacks of such Indemnitee that would not otherwise have expired) shall be
indemnifiable pursuant to the provisions of Section 8.01 hereof without regard
to Section 8.01(b) hereof.
Section 9.03. Subrogation. Upon the payment in full of any
indemnity pursuant to this Article 9 by the Lessee (but not earlier), the
Lessee shall be subrogated to any right of the Indemnitee, other than with
respect to any of such Indemnitee's insurance policies or in connection
with any indemnity claim the Person indemnified may have against any other
Indemnitee in respect of the matter against which such indemnity has been
made.
Section 9.04. Notice and Payment. Each Indemnitee and the Lessee
shall give prompt written notice one to the other of any liability of which
such party has received notice for which the Lessee is, or may be, liable
under this Article 9; provided, however, that failure to give such notice
shall not terminate any of the rights of the Indemnitees under this Article 9,
except (with respect to such Indemnitee) to the extent that the Lessee has
been materially prejudiced by the failure to provide such notice. Unless
otherwise provided in the Operative Agreements, any amount payable to an
Indemnitee pursuant to this Article 9 shall be paid within 30 days after
receipt of a written demand therefor from such Indemnitee accompanied by a
written statement describing in reasonable detail the basis for such indemnity
and the computation of the amount so payable.
Section 9.05. Refunds. If any Indemnitee shall obtain a recovery of
all or any part of any amount which the Lessee shall have paid to such
Indemnitee or for which the Lessee shall have reimbursed such Indemnitee under
this Article 9, and provided there shall not have occurred a Payment Default
or an Event of Default (in which case payment shall not be made to the Lessee
until such Payment Default or Event of Default shall have been cured) such
Indemnitee shall pay to the Lessee the amount of any such recovery, including
interest received with respect to the recovery, net of any Taxes paid or
payable as a result of the receipt of the recovery and interest, plus any net
additional permanent income tax benefits actually realized by Indemnitee as
the result of any payment made pursuant to this sentence less any reasonable
costs and expense of any Indemnitee not reimbursed by the Lessee; provided,
however, that such amount shall not be payable (a) before such time as the
Lessee shall have made all payments or indemnities then due and payable to
such Indemnitee under this Article 9 or (b) to the extent that the amount of
such payment would exceed the amount of all prior payments by the Lessee to
such Indemnitee pursuant to this Article 9, less the amount of all prior
payments by such Indemnitee to the Lessee pursuant to this Article 9. Any
subsequent loss of such recovery or tax benefit shall be subject to
indemnification under Article 8 or this Article 9, as the case may be, but
without regard to Section 8.01(b) hereof, other than Section 8.01(b)(v)
hereof.
Section 9.06. Defense of Claims. The Lessee or its insurers shall
have the right (in each such case at the Lessee's sole expense) to investigate
or, provided that (i) the Lessee or its insurers shall not reserve the right
to dispute liability with respect to any insurance policies pursuant to which
coverage is sought, (ii) in the case of the Lessee, no Payment Default or
Event of Default shall have occurred and be continuing or shall arise at any
time during the claim and (iii) the Lessee shall have first acknowledged in
writing to such Indemnitee the Lessee's obligation to indemnify such
Indemnitee hereunder in respect of such claim, defend any such claim
covered by insurance for which indemnification is sought pursuant to this
Article 9 and each Indemnitee shall cooperate with the Lessee or its
insurers with respect thereto, and provided, further, the Lessee shall not
be entitled to assume and control the defense of any such claim if and to
the extent (A) such Indemnitee reasonably objects to such control on the
ground that an actual or potential material conflict of interest exists
where it is advisable for such Indemnitee to be represented by separate
counsel or on the grounds that such proceeding involves the potential
imposition of criminal liability on such Indemnitee or (B) such proceeding
will involve any material danger of the sale, forfeiture or loss of, or the
creation of any Lien on the Aircraft or the Trust Estate (unless the Lessee
posts a bond or other security reasonably acceptable in form and substance
to such Indemnitee) or involve any material risk of civil liability to such
Indemnitee for which it is not indemnified hereunder. Subject to the
immediately foregoing sentence, where the Lessee or the insurers under a
policy of insurance maintained by the Lessee undertake the defense of an
Indemnitee with respect to such a claim, no additional legal fees or
expenses of such Indemnitee in connection with the defense of such claim
shall be indemnified hereunder unless the fees or expenses were incurred at
the written request of the Lessee or such insurers. Subject to the
requirement of any policy of insurance applicable to a claim, an Indemnitee
may participate at its own expense at any judicial proceeding controlled by
the Lessee or its insurers pursuant to the preceding provisions, to the
extent that such party's participation does not, in the opinion of the
independent counsel appointed by the Lessee or its insurers to conduct such
proceedings, interfere with such control; and such participation shall not
constitute a waiver of the indemnification provided in this Section 9.06.
No Indemnitee shall enter into any settlement or other compromise with
respect to any claim described in this Section 9.06 without the prior
written consent of the Lessee, which consent shall not unreasonably be
withheld or delayed, unless such Indemnitee waives its right to be
indemnified under this Article 9 with respect to such claim. The Lessee
shall not enter into any settlement or compromise which the Lessee has not
agreed to discharge or with respect to which the Lessee has not agreed to
indemnify such Indemnitee to such Indemnitee's satisfaction or which admits
any criminal violation, gross negligence or willful misconduct on the part
of any Indemnitee without the prior written consent of such Indemnitee.
Section 9.07. Survival of Obligations. The representations,
warranties, indemnities and agreements of the Lessee provided for in this
Article 9 and the Lessee's obligations under any and all of them shall survive
the expiration or other termination of this Agreement, the Tax Indemnity
Agreement, the Trust Agreement, the Indenture, the Purchase Agreement
Assignment, the Engine Warranty Assignment, the Lease and the other Operative
Agreements but, as to such indemnities after the expiration or other
termination of the Lease, only with respect to losses, liabilities,
obligations, damages, penalties, claims, actions, suits, costs, Expenses and
disbursements caused by events occurring or existing (or fairly attributable
to the Lessee's acts or omissions) prior to such termination or expiration or
incurred in the process of (i) the return or disposition of the Aircraft under
Article 12 or Article 17 of the Lease, or (ii) the termination of the Lease or
the Indenture or, if later, the return of the Aircraft.
Section 9.08. Effect of Other Indemnities. The Lessee's obligations
under the indemnities provided for in this Agreement shall be those of a
primary obligor whether or not the Person indemnified shall also be
indemnified with respect to the same matter under the terms of this Agreement,
the Lease, the Indenture, the Trust Agreement, or any other document or
instrument, and the Person seeking indemnification from the Lessee pursuant to
any provision of this Agreement may proceed directly against the Lessee
without first seeking to enforce any other right of indemnification.
Section 9.09. Interest. The Lessee will pay to each Indemnitee on
demand, to the extent permitted by applicable law, interest on any amount of
indemnity not paid when due pursuant to this Article 9 until the same shall be
paid, at the Past Due Rate.
Section 9.10. Special Indemnity. Notwithstanding anything in this
Article 9 to the contrary, the Lessee shall hold the Owner Participant
harmless on an After-Tax Basis from any Taxes or losses arising from or in
connection with the transactions contemplated by Section 17.02 hereof.
ARTICLE 10
TRANSACTION COSTS
Section 10.01. Transaction Costs and Other Costs. (a) Transaction
Costs. The Owner Participant shall pay (or reimburse the Lessee if the Lessee
shall have previously made such payment) all fees and expenses of the
following persons relating to the public offering of the Pass Through
Certificates contemplated by the Underwriting Agreement and related to the
transactions contemplated hereby on the Certificate Closing Date and the
Delivery Date: (i) the fees and expenses of counsel for the Owner Participant;
(ii) the fees and expenses of the transaction documentation counsel for the
Lessee and counsel for the Owner Trustee, the Indenture Trustee, the
Subordination Agent, the Pass Through Trustee, each Liquidity Provider and the
Underwriters (other than those fees, expenses and disbursements payable by the
Underwriters pursuant to the Underwriting Agreement); (iii) the fees and
expenses of Daugherty, Fowler & Peregrin; (iv) any initial fees and expenses
of the Pass Through Trustee and each Liquidity Provider and the fees and
expenses of the Owner Trustee, the Subordination Agent and the Indenture
Trustee; (v) any compensation, commissions and discounts payable to the
Underwriters pursuant to the Underwriting Agreement; (vi) the fees, if any,
incurred in printing the Pass Through Certificates; (vii) the fees and
expenses incurred in connection with printing any amendment to the
Registration Statement on Form S-3 bearing Registration No. 333-07691,
printing any Preliminary Prospectus or Prospectus (as such terms are defined
in the Underwriting Agreement) for the offering of the Pass Through
Certificates; (viii) the fees and expenses of Arthur Andersen LLP; (ix) the
fees and expenses of Moody's and S&P; (x) the fees and expenses (including
computer time-sharing charges) of First Chicago Leasing Corporation; (xi) the
reasonable out-of-pocket expenses of the Owner Participant, including, without
limitation, any amounts paid in connection with any appraisal report prepared
on behalf of the Owner Participant; (xii) reimbursement to the Owner
Participant, the Owner Participant Guarantor, the Owner Trustee, the Indenture
Trustee, the Subordination Agent, each Liquidity Provider and the Pass Through
Trustee for any and all fees, expenses and disbursements of the character
referred to above or otherwise incurred in connection with the negotiation,
preparation, execution and delivery, filing and recording of the Operative
Agreements and the documents contemplated thereby, including, without
limitation, travel expenses and disbursements which shall have been paid by
such party; (xiii) printing and duplicating expenses and all fees, taxes and
other charges payable in connection with the recording or filing on or
before the Delivery Date of the instruments described in this Agreement;
(xiv) initial fees, initial expenses, initial disbursements and the initial
costs of distributing the Certificates (but not the continuing fees,
expenses, disbursements and costs of distribution) of SSB, as lessor under
the Lease and as Owner Trustee under the Trust Agreement and with respect
to the administration of the Lease and the Lessor's Estate, of the
Indenture Trustee as trustee under the Indenture with respect to the
administration of the Trust Indenture Estate and of the Subordination Agent
acting under the Intercreditor Agreement; and (xv) any other amounts
approved by the Lessee and the Owner Participant. The fees and expenses
described in clauses (ii) through (x) of this paragraph shall be allocable
to the Owner Participant under this Agreement (1) to the extent incurred
specifically with respect to the Owner Participant, and (2) to the extent
such fees and expenses are incurred but are not specifically attributable
to the Owner Participant, in the proportion that the principal amount of
the Certificates bears to the total amount of the Pass Through
Certificates.
The Owner Participant, the Owner Trustee and the Lessee acknowledge
that the percentages for Basic Rent, Stipulated Loss Value and Termination
Value set forth in the Lease have been prepared assuming the aggregate amount
payable by the Owner Participant pursuant to the preceding paragraph is 1.15%
of the Purchase Price (the "Estimated Expense Amount"). Transaction Costs
shall be paid in the manner provided in Section 3.04 hereof.
(b) Continuing Expenses. The continuing fees, expenses and
disbursements (including reasonable counsel fees and expenses) of the entity
acting as Owner Trustee, as lessor under the Lease and as Owner Trustee under
the Trust Agreement with respect to the administration of the Lease and the
Lessor's Estate and the continuing fees, expenses and disbursements (including
reasonable counsel fees and expenses and initial fees relating to the
establishment of any replacement trustee) of the Indenture Trustee, as trustee
under the Indenture with respect to the administration of the Trust Indenture
Estate, the continuing fees, expenses and disbursements (including reasonable
counsel fees and initial fees relating to the establishment of a replacement
trustee) of the Pass Through Trustee and the Subordination Agent and the
continuing fees, expenses and disbursements (including reasonable counsel fees
and initial fees relating to the establishment of a replacement liquidity
provider) of the Liquidity Providers under each Liquidity Facility shall be
paid as Supplemental Rent by the Lessee, including without limitation any
amounts payable to the Indenture Trustee or on account of requests by the
Indenture Trustee for indemnification under Article XI of the Indenture.
(c) Amendments, Supplements and Appraisal. Without limitation of
the foregoing, the Lessee agrees:
(i) to pay as Supplemental Rent to the Owner Trustee, the Owner
Participant, Owner Participant Guaranty, the Indenture Trustee, the
Subordination Agent, the Liquidity Providers and the Pass Through Trustee
all costs and expenses (including reasonable legal fees and expenses)
incurred by any of them in connection with (a) any Default or Event of
Default and any enforcement or collection proceedings resulting therefrom,
or (b) the enforcement of the obligations of the Lessee hereunder or under
the other Operative Agreements, including, without limitation, the entering
into or giving or withholding of any amendments or supplements or waivers
or consents (whether or not consummated), including without limitation, any
amendment, supplement, waiver or consent resulting from any work-out,
restructuring or similar proceeding relating to the performance or
nonperformance by the Lessee of its obligations under the Operative
Agreements or (c) any amendment, supplement, waiver or consent (whether or
not entered into) under this Agreement, the Lease, the Indenture, the
Certificates, the Tax Indemnity Agreement, the Purchase Agreement
Assignment or any other Operative Agreement or document or instrument
delivered pursuant to any of them, which amendment, supplement, waiver or
consent is required by any provision of any Operative Agreement (including
any adjustment pursuant to Section 3.04 of the Lease) or is requested by
the Lessee or necessitated by the action or inaction of the Lessee;
provided, however, that the Lessee shall not be responsible for fees and
expenses incurred in connection with the offer, sale or other transfer
(whether pursuant to Section 7.03(d) hereof or otherwise) by the Owner
Participant after the Certificate Closing Date of any interest in the
Aircraft, the Lessor's Estate, the Beneficial Interest or the Trust
Agreement or any similar interest (and the Owner Participant shall be
responsible for all such fees and expenses), unless such offer, sale or
transfer shall occur (A) after the Lease has been declared in default or if
the transfer is pursuant to the exercise of remedies under Article 17 of
the Lease or (B) in connection with the termination of the Lease or action
or direction of the Lessee pursuant to Section 4.02, Article 10 or Article
11 of the Lease; and
(ii) to pay the fees, costs and expenses of all appraisers involved
in an independent appraisal of the Aircraft to the extent required under
Section 4.03 of the Lease.
ARTICLE 11
SUCCESSOR OWNER TRUSTEE
Section 11.01. Appointment of Successor Owner Trustee. (a)
Resignation and Removal. The Owner Trustee or any successor Owner Trustee may
resign or may be removed by the Owner Participant, and a successor Owner
Trustee may be appointed and a Person may become Owner Trustee under the Trust
Agreement only in accordance with the provisions of Section 3.11 of the Trust
Agreement and the provisions of paragraphs (b) and (c) of this Section 11.01.
(b) Conditions to Appointment. The appointment in any manner of a
successor Owner Trustee pursuant to Section 3.11 of the Trust Agreement shall
be subject to the following conditions:
(i) Such successor Owner Trustee shall be a Citizen of the United
States;
(ii) Such successor Owner Trustee shall be a bank or a trust company
having combined capital, surplus and undivided profits of at least
$100,000,000 or a bank or trust company fully guaranteed by a direct or
indirect parent thereof having a combined capital, surplus and undivided
profits of at least $100,000,000;
(iii) Such appointment shall not violate any provisions of the
Transportation Code or any applicable rule or regulation of the applicable
regulatory agency or body of any other jurisdiction in which the Aircraft
may then be registered or create a relationship which would be in violation
of the Transportation Code or any applicable rule or regulation of the
applicable regulatory agency or body of any other jurisdiction in which the
Aircraft may then be registered;
(iv) Such successor Owner Trustee shall enter into an agreement
or agreements, in form and substance reasonably satisfactory to the
Lessee, the Owner Participant, the Pass Through Trustee and the
Indenture Trustee whereby such successor Owner Trustee confirms that it
shall be deemed a party to this Agreement, the Trust Agreement, the
Lease, the Lease Supplement, the Purchase Agreement Assignment, the
Engine Warranty Assignment, the Indenture, the Indenture Supplement and
any other Operative Agreement to which the Owner Trustee is a party and
agrees to be bound by all the terms of such documents applicable to the
Owner Trustee and makes the representations and warranties contained in
Section 7.04 hereof (except that it may be duly incorporated, validly
existing and in good standing under the laws of the United States of
America or any State thereof); and
(v) All filings of Uniform Commercial Code financing and continuation
statements, filings in accordance with the Transportation Code and
amendments thereto shall be made and all further actions taken in
connection with such appointment as may be necessary in connection with
maintaining the validity, perfection and priority of the Lien of the
Indenture and the valid and continued registration of the Aircraft in
accordance with the Transportation Code.
(c) Appointment. For so long as the Aircraft remains registered
under the Transportation Code, the Owner Participant agrees to appoint
promptly a successor Owner Trustee meeting the requirements of Section
11.01(b) hereof in the event the Owner Participant has knowledge that the
Owner Trustee at any time shall not be a Citizen of the United States.
ARTICLE 12
LIABILITIES AND INTERESTS OF THE OWNER PARTICIPANT AND HOLDERS
Section 12.01. Liabilities of the Owner Participant. The Owner
Participant shall have no obligation or duty to the Lessee or to any Holder
with respect to the transactions contemplated by this Agreement, except those
obligations or duties expressly set forth in this Agreement, the Indenture,
the Trust Agreement, the Tax Indemnity Agreement, AVSA's FAA Bill of Sale,
AVSA's Warranty Bill of Sale, the Lease or any other Operative Agreement to
which the Owner Participant is a party and the Owner Participant shall not be
liable for the performance by any party hereto of such other party's
obligations or duties hereunder. Under no circumstances shall the Owner
Participant as such be liable to the Lessee, nor shall the Owner
Participant be liable to any Holder, for any action or inaction on the part
of the Owner Trustee or the Indenture Trustee in connection with this
Agreement, the Indenture, the Lease, the Trust Agreement, the Purchase
Agreement Assignment, the Engine Warranty Assignment, any other Operative
Agreement, the ownership of the Aircraft, the administration of the
Lessor's Estate or the Trust Indenture Estate or otherwise, whether or not
such action or inaction is caused by the willful misconduct or gross
negligence of the Owner Trustee or the Indenture Trustee.
Section 12.02. Interest of Holders of Certificates. A Holder of a
Certificate shall have no further interest in, or other right with respect to,
the Trust Indenture Estate when and if the principal and interest on all
Certificates held by such Holder and all other sums payable to such Holder
under this Agreement, under the Indenture and under such Certificates shall
have been paid in full.
ARTICLE 13
OTHER DOCUMENTS
Section 13.01. Consent of Lessee to Other Documents. The Lessee
hereby consents in all respects to the execution and delivery of the
Indenture, the Intercreditor Agreement and the Liquidity Facilities and to all
of the terms of said documents, and the Lessee acknowledges receipt of an
executed counterpart of such documents; it being agreed that such consent
shall not be construed to require the Lessee's consent to any future
supplement to, or amendment, waiver or modification of the terms of the
Indenture, the Intercreditor Agreement or the Liquidity Facilities or the
Certificates, except that prior to the occurrence and continuance of an Event
of Default, no section of the Indenture, the Trust Agreement, the
Intercreditor Agreement or the Liquidity Facilities shall be amended or
modified in any manner materially adverse to the Lessee without its consent.
Section 13.02. Further Assurances. The Lessee hereby confirms to
the Owner Participant its covenants set forth in and obligations under the
Lease. The Lessee agrees that, except as otherwise provided in the
Indenture, the Owner Trustee may not enter into any amendment, modification
or supplement of, or give any waiver or consent with respect to, or approve
any matter or document as being satisfactory under the Lease without the
prior consent of the Indenture Trustee and the Owner Participant and that,
except as otherwise provided in the Indenture, upon an Indenture Event of
Default, the Indenture Trustee may act as the Lessor under the Lease to the
exclusion of the Owner Trustee. The Lessee further agrees to deliver to
the Indenture Trustee and the Owner Participant a copy of each notice,
statement, request, report or other communication given or required to be
given to the Owner Trustee under the Lease.
Section 13.03. Pass Through Trustee's and Subordination Agent's
Acknowledgment. The Pass Through Trustee and the Subordination Agent hereby
acknowledge and agree to be bound by all of the terms and conditions of the
Indenture, including without limitation, Section 8.01 thereof regarding the
rights of the Owner Participant to purchase the Certificates under
circumstances specified therein.
ARTICLE 14
NOTICES
Section 14.01. Notices. All notices, demands, declarations and
other communications required by this Agreement shall be in writing and
shall be deemed received (a) if given by telecopier, when transmitted and
the appropriate telephonic confirmation received if transmitted on a
Business Day and during normal business hours of the recipient, and
otherwise on the next Business Day following transmission, (b) if given by
certified mail, return receipt requested, postage prepaid five Business
Days after being deposited in the United States mail and (c) if given by
FedEx service (or, if a Default or Event of Default shall have occurred and
be continuing, by other comparable courier service), when received or
personally delivered, addressed:
(a) If to the Lessee, to its office at 2007 Corporate Avenue,
Memphis, Tennessee 38132, Attention: Vice President and Treasurer with a
copy to Senior Vice President and General Counsel at 1980 Nonconnah
Boulevard, Memphis, Tennessee 38132, telephone (901) 395-3388, facsimile
(901) 395-4758; or to such other address as the Lessee shall from time to
time designate in writing to the Lessor, the Indenture Trustee and the
Owner Participant;
(b) If to the Lessor or the Owner Trustee, to it c/o State Street
Bank and Trust Company, Two International Place, 4th Floor, Boston,
Massachusetts 02110, Attention: Corporate Trust Department, telephone (617)
664-5526, facsimile (617) 664-5371; or to such other address as the Lessor
shall from time to time designate in writing to the Lessee and the
Indenture Trustee, with a copy to the Owner Participant;
(c) If to the Owner Participant, to its office at 200 First Stamford
Place, Stamford, Connecticut 06902, Attention: Vice President Leasing with
a copy to Director, Portfolio Administration, telephone (914) 335-5000,
facsimile 914 335-8301, or to such other address as the Owner Participant
may from time to time designate in writing to the Lessee and the Indenture
Trustee;
(d) If to the Indenture Trustee, the Subordination Agent or the Pass
Through Trustee, to its office at 79 South Main Street, Salt Lake City,
Utah 84111, Attention: Corporate Trust Department, telephone (801)
246-5053, facsimile (801) 246-5630; or to such other address as the
Indenture Trustee or the Pass Through Trustee, as the case may be, shall
from time to time designate in writing to the Lessor, the Lessee and the
Owner Participant; and
(e) If to a Liquidity Provider, to its office at 125 West 55th
Street, New York, New York 10019, Attention: General Manager, telephone
(212) 541-0600, facsimile (212) 956-5580; or to such other address as a
Liquidity Provider shall from time to time designate in writing to the
Lessor, the Lessee and the Indenture Trustee.
ARTICLE 15
REFINANCING/REOPTIMIZATION
Section 15.01. Refinancing. (a) Subject to the terms and
conditions of this Section 15.01, the Lessee may request the Owner Participant
to participate in up to two refinancings in whole but not in part, of the
Certificates prior to the end of the Basic Term (a "Refinancing"). Such
Refinancings may be placed in either the private or public markets and shall
be denominated in United States dollars (or in any other foreign currency so
long as the Owner Participant is satisfied there is no foreign currency risk
to it), and shall be on terms that do not materially adversely affect the
Owner Participant. The Owner Participant agrees to negotiate promptly in good
faith to conclude an agreement with the Lessee as to the terms of any such
Refinancing transaction (including the terms of any debt to be issued in
connection with such refinancing and the documentation to be executed in
connection therewith). Without the prior written consent of the Owner
Participant, the prospectus and other offering materials relating to any
Refinancing in the form of a public offering shall not identify the Owner
Participant and shall not include any financial statements of the Owner
Participant or any Affiliate thereof. In connection with any such Refinancing
in the form of a public offering, the Lessee shall indemnify the Owner
Participant in a manner satisfactory to it for any liabilities under federal,
state or foreign securities laws resulting from such offering. The aggregate
principal amount of the new Certificates issued in connection with each
Refinancing shall be the same as the aggregate principal amount outstanding on
the Certificates being refinanced.
(b) Notwithstanding anything herein to the contrary, no Refinancing
will be permitted unless the Owner Participant and the Indenture Trustee shall
have received at least 15 days' prior written notice of the scheduled closing
date of such Refinancing and the Owner Participant shall have been provided
such longer period as it shall have required for a reasonable opportunity to
review the relevant documentation and the Owner Participant shall have
determined in good faith that neither it nor the Owner Trustee shall suffer
any loss or expense or bear any increased risk as a result of such Refinancing
(including, without limitation, any risk with respect to taxes or other
adverse consequences to the Owner Participant including the application of
Revenue Procedures 75-21 and 75-28 and Section 467 of the Code) for which it
has not been or will not have been indemnified by the Lessee in a manner
reasonably satisfactory to the Owner Participant, nor shall its rights against
all other parties taken as a whole be adversely affected compared to such
rights in effect under the Operative Agreements prior to such proposed
Refinancing.
Prior to the consummation of any Refinancing pursuant to this Section
15.01, the Owner Participant and the Lessee shall agree upon a schedule
setting forth each installment of Basic Rent and setting forth Stipulated Loss
Values and Termination Values payable pursuant to the Lease as a result of the
Refinancing in accordance with Section 3.04 of the Lease, and thereafter the
amounts set forth in such schedule shall become the amounts payable under the
Lease. Upon the consummation of the Refinancing, the evidence of indebtedness
issued pursuant to the Refinancing shall be considered "Certificates" for
purposes of this Agreement, the Lease and the Indenture.
(c) Notwithstanding the foregoing, the Owner Participant shall have
no obligation to proceed with any Refinancing transaction as contemplated by
this Section 15.01 unless the Lessee indemnifies the Owner Trustee and the
Owner Participant by agreement in form and substance satisfactory to each of
them, for any liability, obligation (other than the obligation to pay
principal and interest in respect of the refinanced indebtedness), cost or
expense (including, without limitation, reasonable attorneys' fees and
Make-Whole Premium or other amounts due under the Indenture), including any
adverse tax consequences or impact, related to or arising out of any such
Refinancing transaction.
(d) Without the prior written consent of the Owner Participant,
which consent may be withheld in its sole discretion, no such refinancing
shall (1) cause the aggregate principal amount of the indebtedness to be
substituted for the Certificates to exceed the aggregate principal amount
of the then outstanding Certificates, (2) cause the weighted average life
of such indebtedness to be different by more than 6 months than the
remaining weighted average life of the then outstanding Certificates, or
(3) cause the date of maturity of such indebtedness to be later than the
date of maturity of the Certificates being refinanced.
(e) Each party agrees to take or cause to be taken all requested
action, including, without limitation, the execution and delivery of any
documents and instruments, including, without limitation, amendments or
supplements to the Lease, which may be reasonably necessary or desirable to
effect such Refinancing, including, in the case of the Owner Participant,
direction to the Owner Trustee by the Owner Participant to prepay the
Certificates then outstanding; provided, however, that such Refinancing shall
be subject to the satisfaction of each of the following conditions:
(i) Payment of principal, accrued interest, Make-Whole Premium
and breakage costs, if any, and all other sums due and owing on the
Certificates payable under the Indenture;
(ii) Payment in full of all other amounts then due and owing by the
Lessee under this Agreement, the Indenture, the Lease, the Trust Agreement,
and the Certificates then outstanding shall have been made by the Lessee;
(iii) Such party shall have received such opinions of counsel
(including, without limitation, an opinion received by the Owner
Participant from independent tax counsel reasonably satisfactory to the
Lessee that such Refinancing shall not result in any adverse tax
consequences to such Owner Participant, unless the Lessee shall have agreed
to provide an indemnity in respect thereof reasonably satisfactory in form
and substance to the Owner Participant), certificates and other documents
as it may reasonably request, each in form and substance reasonably
satisfactory to such party;
(iv) All authorizations, approvals and consents which in the
reasonable judgment of the Owner Participant are necessary for such
Refinancing shall have been obtained;
(v) The Lessee shall have provided or agreed to provide to the
Owner Participant, as Supplemental Rent under the Lease, sufficient
funds to pay any breakage costs, Make-Whole Premium and any other
amounts due under the Indenture;
(vi) The satisfaction or waiver by each other party to this
Agreement of the conditions set forth in this Section 15.01 to such
party's obligations under this Section 15.01;
(vii) No Payment Default, Bankruptcy Default or Event of Default
shall have occurred and be continuing or would occur immediately after
giving effect to such Refinancing;
(viii) In the event the Lessee shall not prohibit the purchase of
the Refinancing loan certificates by, or with the assets of, an employee
benefit plan, as defined in Section 3(3) of ERISA, which is subject to
Title I of ERISA or a plan or individual retirement account, which is
subject to Section 4975(c) of the Code, (individually or collectively, an
"ERISA Plan"), the Lessee will permit the placement of the Refinancing loan
certificates with an ERISA Plan only if either (A) if such placement is in
the form of pass through certificates, the sole underwriter or the manager
or co-manager of the underwriting syndicate or the selling or placement
agent of the Refinancing loan certificates represents to the Lessee that it
has a prohibited transaction exemption from the U.S. Department of Labor
with respect to pass through certificates (such as Prohibited Transaction
Exemption 89-88 or any other comparable exemption) or (B) purchasers of the
Refinancing loan certificates provide a representation (which may be in the
form of a deemed representation) regarding their source of funds used in
acquiring the Refinancing loan certificates and, if such purchasers
represent that they are using funds of an ERISA Plan in acquiring the
Refinancing loan certificates, such purchasers further represent that (1)
either they are relying on a prohibited transaction exemption from the U.S.
Department of Labor with respect to their purchase and holding of the
Refinancing loan certificates and they provide representations regarding
the satisfaction of the relevant conditions of such an exemption or (2)
their purchase and holding of the Refinancing loan certificates will not
constitute a non-exempt prohibited transaction under Section 406 of
ERISA or Section 4975 of the Code. The reliance on any such exemption
will not be conditional on the Owner Participant's representation
concerning its party in interest or other status with respect to ERISA
Plans. If neither exemption referred to in clause (A) or (B) of this
paragraph (viii) is valid or applicable in any respect to the purchase
and holding of the Refinancing loan certificates, or if the
representation in clause (B) of this paragraph (viii) that such purchase
and holding will not constitute a non-exempt prohibited transaction is
not correct, whichever is applicable, then the Lessee shall indemnify
the Owner Participant pursuant to, and to the extent provided for, under
Sections 8 and 9 hereof for Taxes and Expenses resulting from any
"prohibited transaction", within the meaning of Section 406 of ERISA or
Section 4975(c)(1) of the Code, occurring with respect to the placement
of the Refinancing loan certificates with, or the holding of the
Refinancing loan certificates by, any ERISA Plan with respect to which
the Owner Participant is a party in interest, within the meaning of
Section 3(14) of ERISA, or a disqualified person, within the meaning of
Section 4975 of the Code, provided, however, that if the Lessee shall
fail to obtain either of the representations set forth in clause (A) or
(B) of this paragraph (viii), such indemnity shall not be subject to the
exceptions set forth under Sections 8.01(b)(xii)(A) and (B) and
9.01(b)(ix)(A) and (B) hereof; and
(ix) The Lessee shall pay all costs and expenses (including legal
fees) incurred in connection with any proposed or actually consummated
Refinancing.
Section 15.02. Reoptimization. (a) If a Change in Tax Rate occurs
prior to the end of the Basic Term, then, subject to the terms and conditions
of this Section 15.02 and Section 3.04 of the Lease, the Owner Participant
may, upon 30 days' prior notice to the Lessee, the Indenture Trustee, the
Owner Trustee and the Holders, elect to modify the schedule of payments of
principal of the certificates issued ("Refinancing Certificates") in
connection with any Refinancing using private debt (not including debt issued
pursuant to an exemption from registration under the Securities Act relying on
Rule 144A promulgated thereunder but otherwise marketed in a manner
substantially similar to securities registered under the Securities Act, and
not including debt issued in connection with any offering of securities
registered under the Securities Act) due on each remaining Rent Payment Date
on or commencing on the Rent Payment Date next succeeding the date mutually
agreed to by the Owner Participant, the Lessee and the Indenture Trustee on
which the Owner Participant shall make such modification (the "Reoptimization
Date"). Promptly after making such modification, the Owner Participant shall
furnish each party hereto written notice of the amounts so recalculated.
(b) Adjustments to Refinancing Certificates. On the Reoptimization
Date, subject to the satisfaction on or before the Reoptimization Date of the
conditions set forth in Section 15.02(c), the Owner Trustee will issue and
deliver and the Indenture Trustee will authenticate, and each holder of a
Refinancing Certificate will accept delivery of, a new Refinancing Certificate
or Refinancing Certificates (in replacement of each Refinancing Certificate
then held by such holder, which Refinancing Certificates shall be surrendered
to the Indenture Trustee for cancellation) containing such changed principal
installments (expressed as a percentage of the original principal amount of
such Refinancing Certificate) as shall have been recalculated by the Owner
Participant, but in the same principal amount as, and containing terms
identical to, except as otherwise contemplated by Section 15.02(d) hereof, the
Refinancing Certificates originally issued in connection with the Operative
Agreements.
(c) Conditions to the Obligations of the Holders of the Refinancing
Certificates on the Reoptimization Date. The obligation of each holder of a
Refinancing Certificate to accept delivery of a new Refinancing Certificate on
the Reoptimization Date, and to surrender on such Reoptimization Date any
Refinancing Certificate then held by it, is subject to the following
conditions precedent having been satisfied on or before the Reoptimization
Date:
(i) the requirements of Section 15.02(d) hereof shall have been
satisfied;
(ii) the following documents, in form and substance satisfactory to
such Holder, shall have been duly authorized, executed and delivered by the
party or parties thereto and shall be in full force and effect: (A) if the
payments of Basic Rent, Stipulated Loss Values and Termination Values with
respect to the Term have been changed, an amendment to the Lease, dated the
Reoptimization Date, (B) an amendment to the Indenture setting forth any
changed repayment schedule to the Refinancing Certificates, dated the
Reoptimization Date and duly filed (or in the process of being so duly
filed) for recordation with the Aeronautics Authority and (C) replacement
Refinancing Certificates; and
(iii) in connection with any Reoptimization the Owner Participant
shall pay or agree to pay all reasonable costs and expenses incurred by the
Lessee, the Owner Trustee, the Indenture Trustee and each Holder of a
Refinancing Certificate (including, without limitation, reasonable legal
fees and expenses) in connection with any such reoptimization.
(d) Payment Schedules. Except as otherwise provided in this
Section 15.02 as long as the Refinancing Certificates remain outstanding,
the payment schedules for the Refinancing Certificates shall not be
modified.
ARTICLE 16
[RESERVED]
ARTICLE 17
MISCELLANEOUS
Section 17.01. Owner for Federal Tax Purposes. It is hereby agreed
between the Owner Participant and the Lessee (but the Lessee makes no
representation to such effect) that it is the intent of the parties for
Federal, state, local and foreign income tax purposes that the Owner
Participant will be treated as the owner of the Aircraft and the Lessee will
be treated as the lessee of the Aircraft.
Section 17.02. Collateral Account. (a) The Indenture Trustee shall
notify the Owner Trustee and the Lessee of any losses incurred on the
Specified Investments in the Collateral Account promptly upon the realization
thereof, as well as any fees, commissions and other costs, Taxes (other than
income taxes) and expenses, if any, incurred by the Indenture Trustee in
connection with its administration of the Collateral Account (collectively,
"Losses"). Promptly upon receipt of such notification but, in any event, no
later than the earlier of the Delivery Date (or, if later, the last day of any
investment period referred to in Section 2.14(b) of the Indenture during which
the Delivery Date occurs) and the 15th day after the Cut-Off Date, the Lessee
shall pay to the Indenture Trustee, on behalf of the Owner Trustee, for
deposit into the Collateral Account, an amount equal to such Losses (net of
any investment earnings).
(b) The Lessee shall pay to the Indenture Trustee, on behalf of the
Owner Trustee (A) on each Payment Date prior to the Delivery Date an amount
equal to the aggregate amount of interest accrued on the Certificates from
(and including) the Certificate Closing Date or previous Payment Date, as the
case may be, to, but excluding, such Payment Date and (B) on the first Payment
Date subsequent to the Delivery Date, interest accrued on the Certificates
from and including the last Payment Date (or, if none, the Certificate Closing
Date), to, but excluding, the Delivery Date. In addition, the Lessee will pay
to the Indenture Trustee on behalf of the Owner Trustee all amounts owed by
the Owner Trustee pursuant to clause (b) of the last paragraph of Section 2.04
of the Indenture.
(c) If the Aircraft has not been purchased by the Owner Trustee
on the Delivery Date, the Lessee agrees to pay to the Indenture Trustee, on
behalf of the Owner Trustee, on the 15th day following the Cut-Off Date the
excess, if any, of the amounts payable under Section 6.02(b)(1) of the
Indenture over the amounts released from the Collateral Account under
Section 2.16 of the Indenture.
(d) All amounts payable by the Lessee pursuant to this Section 17.02
shall be paid to the Indenture Trustee at its principal office at 79 South
Main Street, Salt Lake City, Utah, 84111, Attention: Corporate Trust
Department, or as the Indenture Trustee may otherwise direct within the United
States, by wire transfer of immediately available funds in U.S. Dollars no
later than 10:30 a.m., New York City time, on the due date of such payment.
Section 17.03. Counterparts. This Agreement may be executed by the
parties in separate counterparts, each of which when so executed and delivered
shall be an original, but all such counterparts shall together constitute but
one and the same instrument.
Section 17.04. No Oral Modifications. Neither this Agreement nor
any of its terms may be terminated, amended, supplemented, waived or modified
orally, but only by an instrument in writing signed by the party against which
the enforcement of the termination, amendment, supplement, waiver or
modification is sought. No such written termination, amendment, supplement,
waiver or modification shall be effective unless a signed copy shall have been
delivered to and executed by the Owner Trustee and the Indenture Trustee. A
copy of each such termination, amendment, supplement, waiver or modification
shall also be delivered to each other party to this Agreement.
The consent of each of the Pass Through Trustee and the Subordination
Agent, in its capacity as a party to this Agreement and not as a Holder, shall
not be required to modify, amend or supplement this Agreement or to give any
consent, waiver, authorization or approval with respect to this Agreement
under the circumstances in which the consent of the Indenture Trustee would
not be required for such modification, amendment, supplement, consent, waiver
or approval in accordance with Section 8.01(b) of the Indenture, provided that
the Pass Through Trustee shall be entitled to receive an Opinion of Counsel
(as defined in the Pass Through Agreement) necessary, in its sole discretion,
to establish that the Indenture Trustee's consent would not be required under
such circumstances.
Section 17.05. Captions. The table of contents preceding this
Agreement and the headings of the various Articles and Sections of this
Agreement are for convenience of reference only and shall not modify, define,
expand or limit any of the terms or provisions of this Agreement.
Section 17.06. Successors and Assigns. The terms of this Agreement
shall be binding upon, and shall inure to the benefit of, the Lessee and its
successors and permitted assigns, the Subordination Agent and its successors
and permitted assigns, including without limitation each Holder of a
Certificate, the Owner Participant and its successors and permitted assigns,
the Owner Trustee and its successors as Owner Trustee (and any additional
owner trustee appointed) under the Trust Agreement, the Indenture Trustee and
its successors as Indenture Trustee (and any additional indenture trustee
appointed) under the Indenture and the Pass Through Trustee and its successors
as Pass Through Trustee (and any additional pass through trustee appointed).
Section 17.07. Concerning the Owner Trustee, Indenture Trustee and
the Pass Through Trustee. Each of SSB and FSB is entering into this Agreement
solely in their respective capacities (except to the extent otherwise
expressly indicated), in the case of SSB, not in its individual capacity but
solely as Owner Trustee under the Trust Agreement, in the case of FSB, not in
its individual capacity but solely as Indenture Trustee under the Indenture
and as Pass Through Trustee under the Pass Through Agreement, and except as
otherwise expressly provided in this Agreement or in the Lease, the Indenture,
the Pass Through Agreement or the Trust Agreement, neither SSB, nor FSB,
shall be personally liable for or on account of its statements,
representations, warranties, covenants or obligations under this Agreement;
provided, however, that each of SSB and FSB accepts the benefits running to it
under this Agreement, and each agrees that (except as otherwise expressly
provided in this Agreement or any other Operative Agreement to which it is a
party) it shall be liable in its individual capacity for (a) its own gross
negligence or willful misconduct (whether in its capacity as trustee or in its
individual capacity), (b) any breach of representations and warranties or any
breach of covenants made in its individual capacity pursuant to or in
connection with this Agreement or the other Operative Agreements to which
it is a party, (c) any breach, in the case of the Owner Trustee, of its
covenants contained in Sections 3.05 and 3.08 of the Indenture, (d) the
failure to use ordinary care in receiving, handling and disbursing funds,
(e) in the case of the Owner Trustee, Lessor's Liens attributable to it in
its individual capacity, (f) in the case of the Indenture Trustee,
Indenture Trustee's Liens and (g) taxes, fees or other charges on, or based
on, or measured by, any fees, commissions or compensation received by it in
connection with the transactions contemplated by the Operative Agreements.
Section 17.08. Severability. Any provision of this Agreement which
is prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions, and any such
prohibition or unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction.
Section 17.09. Public Release of Information. Subject to applicable
legal requirements (including, without limitation, securities laws
requirements, other regulatory requirements and other legally compelled
disclosures), so long as there shall not have occurred an Event of Default or
Indenture Event of Default, each party to this Agreement shall in each
instance obtain the prior written approval of each other party to this
Agreement concerning the exact text and timing of news releases, articles and
other information releases to the public media concerning any Operative
Agreements.
Section 17.10. Certain Limitations on Reorganization. The Indenture
Trustee and the Pass Through Trustee agree that, if (i) the Owner Trustee
becomes or all or any part of the Lessor's Estate or the trust created by the
Trust Agreement becomes the property of, a debtor subject to the
reorganization provisions of the Bankruptcy Code or any other applicable
bankruptcy or insolvency statutes, (ii) pursuant to any such reorganization
provisions, the Owner Participant is held to have recourse liability to the
debtor, the Owner Trustee or the trustee of the debtor directly or indirectly
on account of any amount payable as Make-Whole Premium, principal or interest
on the Certificates, or any other amount payable on any Certificate that is
provided in the Operative Agreements to be nonrecourse to the Owner
Participant and (iii) the Indenture Trustee actually receives any Recourse
Amount which reflects any payment by the Owner Participant on account of (ii)
above, then the Indenture Trustee, as the case may be, shall promptly refund
to the Owner Participant such Recourse Amount. For purposes of this Section
17.10, "Recourse Amount" means the amount by which the portion of such payment
by the Owner Participant on account of clause (ii) above received by the
Indenture Trustee exceeds the amount which would have been received by the
Indenture Trustee if the Owner Participant had not become subject to the
recourse liability referred to in (ii) above. Nothing contained in this
Section shall prevent the Indenture Trustee from enforcing any individual
obligation (and retaining the proceeds thereof) of the Owner Participant under
this Agreement or any other Operative Agreement to the extent herein or
therein provided, for which the Owner Participant has expressly agreed by the
terms of this Agreement to accept individual responsibility.
Section 17.11. GOVERNING LAW. THIS AGREEMENT SHALL IN ALL RESPECTS
BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK, INCLUDING ALL MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE, WITHOUT
GIVING EFFECT TO PRINCIPLES OF CONFLICTS OF LAWS AND IS BEING DELIVERED IN NEW
YORK.
Section 17.12. Section 1110 Compliance. The parties hereto agree
that the transactions contemplated by the Operative Agreements are expressly
intended to be, shall be and should be construed so as to be entitled to the
benefits and protection of Section 1110 of the Bankruptcy Code.
Section 17.13. Reliance of Liquidity Providers. Each of the parties
hereto agrees and acknowledges that each Liquidity Provider shall be a third
party beneficiary of each of the representations and warranties made herein by
such party, and that each Liquidity Provider may rely on such representations
and warranties to the same extent as if such representations and warranties
were made to such Liquidity Provider directly. The terms of this Agreement
shall inure to the benefit of each Liquidity Provider, their respective
successors and permitted assigns.
ARTICLE 18
CONFIDENTIALITY
Section 18.01. Confidentiality. Each party hereto agrees (on behalf
of itself and each of its Affiliates, agents, directors, officers, employees
and representatives) to use reasonable precautions to keep confidential, in
accordance with its customary procedures for handling confidential information
of this nature, any non-public information supplied to it pursuant to this
Agreement which is identified by the Person supplying the same as being
confidential at the time the same is delivered to such party, provided that
nothing herein shall limit the disclosure of any such information (i) to the
extent required by statute, rule, regulation or judicial process, (ii) to
counsel for any of the parties hereto, (iii) to bank examiners or similar
regulatory authorities, auditors or accountants, (iv) in connection with any
litigation to which any one or more of the parties hereto is a party relating
to the transactions contemplated hereby or by any of the Operative Agreements,
(v) to an Affiliate of the parties hereto, (vi) to any assignee or participant
(or prospective assignee or participant) or other transferee so long as such
assignee or participant (or prospective assignee or participant) or other
transferee first executes and delivers to the respective party making such
assignment or participation an agreement in writing to be bound by the
provisions of this Section 18.01 or (vii) in the case of the Owner Participant
or the Owner Trustee (in its individual or trust capacity) to the Owner
Trustee (in its individual or trust capacity) or to the Owner Participant, as
the case may be.
IN WITNESS WHEREOF, the parties have caused this Participation
Agreement to be executed by their respective, duly authorized officers and
this Participation Agreement shall be effective this 22nd day of May, 1997.
LESSEE:
FEDERAL EXPRESS CORPORATION
By:__________________________________________
Name: Robert D. Henning
Title: Assistant Treasurer and Managing
Director - Structured Finance
OWNER PARTICIPANT:
PMCC LEASING CORPORATION
By:__________________________________________
Name: Joan D. Woodroof
Title: Manager, Structured Finance
OWNER TRUSTEE:
STATE STREET BANK AND TRUST COMPANY OF
CONNECTICUT, NATIONAL ASSOCIATION,
not in its individual capacity,
except as otherwise expressly provided herein,
but solely as Owner Trustee
By:__________________________________________
Name: Paul D. Allen
Title: Vice President
INDENTURE TRUSTEE:
FIRST SECURITY BANK,
NATIONAL ASSOCIATION,
not in its individual capacity except as
otherwise expressly provided herein,
but solely as Indenture Trustee
By:__________________________________________
Name: Greg A. Hawley
Title: Vice President
PASS THROUGH TRUSTEE:
FIRST SECURITY BANK,
NATIONAL ASSOCIATION,
not in its individual capacity except as
otherwise expressly provided herein,
but solely as Pass Through Trustee
By:__________________________________________
Name: Greg A. Hawley
Title: Vice President
SUBORDINATION AGENT:
FIRST SECURITY BANK,
NATIONAL ASSOCIATION,
not in its individual capacity except as
otherwise expressly provided herein,
but solely as Subordination Agent
By:__________________________________________
Name: Greg A. Hawley
Title: Vice President
SCHEDULE I
CERTIFICATE INFORMATION
1. Federal Express Corporation 1997-1 Pass Through Trust Class A
Federal Express Corporation Trust No. N674FE
Interest Rate: 7.50%
Maturity: January 15, 2018
Principal Amount: $33,382,000
2. Federal Express Corporation 1997-1 Pass Through Trust Class B
Federal Express Corporation Trust No. N674FE
Interest Rate: 7.52%
Maturity: January 15, 2018
Principal Amount: $12,430,000
3. Federal Express Corporation 1997-1 Pass Through Trust Class C
Federal Express Corporation Trust No. N674FE
Interest Rate: 7.65%
Maturity: January 15, 2014
Principal Amount: $16,023,000
SCHEDULE II
DEFINITIONS
(FEDERAL EXPRESS CORPORATION TRUST NO. N674FE)
GENERAL PROVISIONS
The following terms shall have the following meanings for all
purposes of the Operative Agreements (other than the Pass Through Agreement,
the Series Supplements, the Intercreditor Agreement and the Liquidity
Facilities) referred to below, unless otherwise defined in an Operative
Agreement or the context thereof shall otherwise require. In the case of any
conflict between the provisions of this Schedule and the provisions of any
Operative Agreement, the provisions of such Operative Agreement shall control
the construction of such Operative Agreement.
Unless the context otherwise requires, (i) references to agreements
shall be deemed to mean and include such agreements as amended and
supplemented from time to time, and (ii) references to parties to agreements
shall be deemed to include the successors and permitted assigns of such
parties.
DEFINED TERMS:
Additional Insured. As defined in Article 13 of the Lease.
Aeronautics Authority. As appropriate, the Federal Aviation
Administration and/or the Administrator of the Federal Aviation
Administration, any successor to the former United States Civil Aeronautics
Board, or any Person, governmental department, bureau, commission or agency
located in the United States succeeding to the functions of any of the
foregoing.
Affidavits. The affidavits of citizenship of the Owner Trustee and
the Owner Participant.
Affiliate. With respect to any Person, any other Person directly or
indirectly controlling, controlled by or under common control with such
Person. For the purposes of this definition, "control" (including "controlled
by" and "under common control with") shall mean the power, directly or
indirectly, to direct or cause the direction of the management and policies of
such Person whether through the ownership of voting securities or by contract
or otherwise. In no event shall the Owner Trustee or the Lessor be deemed an
Affiliate of the Owner Participant.
After-Tax Basis. A basis such that any payment to be received by a
Person shall be supplemented by a further payment to such Person so that the
sum of the two payments, after deduction of all Taxes resulting from the
receipt or accrual of such payments, shall be equal to the payment to be
received. In the case of amounts payable to the Lessor, the Owner Participant,
or any corporate Affiliate of the Owner Participant, it shall be presumed that
such Person is at all times subject to Federal income tax at the maximum
marginal rate generally applicable to corporations from time to time and
actual state, local and foreign income taxes.
Air Carrier. Any U.S. Air Carrier and any "foreign air carrier" (as
defined in the Transportation Code) as to which there is in force a permit
granted under Section 41302 of the Transportation Code.
Airbus Guaranty. The Guaranty to be dated the Delivery Date executed
by the Manufacturer and guaranteeing AVSA's Warranty Bill of Sale.
Aircraft. The Airframe to be sold by AVSA to the Owner Trustee as
provided in the Participation Agreement and to be leased under the Lease (or
any permitted substitute airframe thereunder) together with two Engines
(whether either is an initial Engine or a Replacement Engine) whether or not
any of such initial or Replacement Engines may from time to time be installed
on such Airframe or may be installed on any other airframe or on any other
aircraft, including any aircraft substituted pursuant to Section 11.03 of the
Lease. Prior to delivery of the initial Lease Supplement, references in the
Operative Agreements (including Section 3.05 of the Participation Agreement)
to Aircraft shall mean the Airbus A300F4-605R airframe bearing FAA
Registration Number N674FE and Manufacturer's serial number 781, together with
two General Electric CF6-80C2-A5F engines.
Airframe. The Airbus A300F4-605R aircraft (excluding the Engines or
engines from time to time installed thereon) to be leased by the Lessor to the
Lessee pursuant to the Lease and the initial Lease Supplement and having the
United States FAA Registration Number initially and manufacturer's serial
number specified in the initial Lease Supplement, including (i) all Parts in
respect thereof and (ii) any Replacement Airframe which may be substituted
pursuant to Section 11.03 of the Lease.
Ancillary Agreement. Any written agreement of the Lessee to which the
Lessor is a party or to which the Lessor has consented in writing entered into
on or prior to the Delivery Date or any date thereafter in connection with the
transactions contemplated by the Operative Agreements, as such agreement may
be amended and supplemented from time to time with the consent of the Lessor
and delivered to the Owner Trustee, the Indenture Trustee, the Pass Through
Trustee, the Subordination Agent, each Liquidity Provider and the Owner
Participant.
Ancillary Agreement I. The Ancillary Agreement I (Federal Express
Corporation Trust No. N674FE), dated the Certificate Closing Date, among the
Lessee, the Owner Trustee, not in its individual capacity, but solely as Owner
Trustee, the Owner Participant and the Indenture Trustee not in its individual
capacity, but solely as Indenture Trustee, as originally executed or as
amended, modified or supplemented with the consent of all the parties thereto.
Ancillary Agreement II. The Ancillary Agreement II (Federal Express
Corporation Trust No. N674FE), dated the Certificate Closing Date, among the
Lessee, the Owner Trustee, not in its individual capacity, but solely as Owner
Trustee, the Owner Participant and the Indenture Trustee not in its individual
capacity, but solely as Indenture Trustee, as originally executed or as
amended, modified or supplemented with the consent of all the parties thereto.
Application. The application for registration of the Aircraft with
the FAA in the name of the Owner Trustee.
Appraisal. The report prepared by BK Associates, Inc. and to be
delivered to the Owner Participant (with an abbreviated report to the Lessee)
on the Delivery Date pursuant to Section 4.02(h) of the Participation
Agreement.
Assignment and Assumption Agreement. Any agreement delivered in
compliance with Section 7.03(d) of the Participation Agreement.
Average Life Date. For any Certificate, the date which follows the
prepayment date by a period equal to the Remaining Weighted Average Life of
such Certificate.
AVSA. AVSA S.A.R.L., a societe a responsabilite limitee, organized
and existing under the laws of France.
AVSA Consent and Agreement. The Consent and Agreement dated as of
May 1, 1997, executed by AVSA.
AVSA's FAA Bill of Sale. The bill of sale for the Airframe on AC
Form 8050-2, or such other form as may be approved by the Aeronautics
Authority, executed by AVSA in favor of the Owner Trustee and to be dated the
Delivery Date.
AVSA's Warranty Bill of Sale. The full warranty bill of sale
covering the Aircraft (and specifically referring to each Engine) executed by
AVSA as owner of the Aircraft in favor of the Owner Trustee and to be dated
the Delivery Date.
Bankruptcy Code. The Federal Bankruptcy Code of 1978, as amended, and
any successor thereto.
Bankruptcy Default. An event specified in Section 16.01(e), (f) or
(g) of the Lease which either does or, with the giving of notice or lapse of
time or both, would constitute an Event of Default.
Basic Rent. The aggregate periodic rent payable for the Aircraft
throughout the Basic Term pursuant to Section 3.02 of the Lease, adjusted
pursuant to Article 3 of the Lease.
Basic Term. The period commencing at the beginning of the day on the
Delivery Date and ending at the end of the day on December 23, 2020, or such
earlier date on which the Lease shall be terminated as provided therein.
Beneficial Interest. The interest of the Owner Participant under the
Trust Agreement.
Business Day. Any day on which commercial banks are not authorized or
required to close in New York, New York, Memphis, Tennessee and the city in the
United States in which the office or agency is maintained by the Pass Through
Trustee for the payment of the Pass Through Certificates, and after the Lien
of the Indenture is discharged, Boston, Massachusetts.
Certificate Closing Date. The date of the closing with respect to the
purchase of Certificates by the Pass Through Trustee contemplated by Section
2.01(b) of the Participation Agreement.
Certificates. The Equipment Trust Certificates (Federal Express
Corporation Trust No. N674FE), issued by the Owner Trustee pursuant to the
Indenture and any certificate issued in exchange therefor or replacement
thereof pursuant to the Indenture.
Change in Tax Law. Any change to the Code or the Treasury regulations
promulgated thereunder or the publication of any revenue ruling, revenue
procedure or any informational release by the Internal Revenue Service or the
Department of Treasury either of which would change or would allow a change in
the tax assumptions or structure upon which the lease economics were based,
provided that the Owner Participant or the Lessee has notified the other party
of such change in writing prior to the Delivery Date.
Change in Tax Rate. Any amendment, modification, deletion, addition,
or change to the Code which is enacted into law after the Delivery Date which
changes the highest marginal statutory rate of Federal income tax applicable
to the Owner Participant (other than a change which is in the nature of a
minimum tax).
Citizen of the United States. A citizen of the United States as
defined in Section 40102(a)(15) of the Transportation Code, or any analogous
part of any successor or substituted legislation or regulation at the time in
effect.
Class A Liquidity Provider. Has the meaning specified in Section
1.01 of the Intercreditor Agreement.
Class B Liquidity Provider. Has the meaning specified in Section
1.01 of the Intercreditor Agreement.
Closings. The closing with respect to the acquisition of the Pass
Through Certificates by the Underwriters and the closing with respect to the
acquisition of Certificates by the Pass Through Trustee.
Code. Except as otherwise provided, the Internal Revenue Code of
1986, as amended from time to time.
Collateral Account. The deposit account established and maintained
pursuant to Section 2.13 of the Indenture.
Collateral Account Control Agreement. The Collateral Account Control
Agreement dated as of May 1, 1997 among State Street Bank and Trust Company,
the Indenture Trustee and the Owner Trustee.
Commitment. The amount of the Owner Participant's participation in
the Purchase Price required to be made available or paid as provided in
Section 3.02 of the Participation Agreement.
Consent and Agreement. The Consent and Agreement dated as of May 1,
1997 executed by the Manufacturer.
Consent and Guaranty. The Consent and Guaranty of the Manufacturer
attached to the Purchase Agreement.
Corporate Trust Administration. The Corporate Trust Administration
office of the Owner Trustee located at 750 Main Street, Hartford, Connecticut
06103, Attention: Corporation Trust Administration, or such other office at
which the Owner Trustee's corporate trust business shall be administered which
the Owner Trustee shall have specified by notice in writing to the Lessee, the
Owner Participant and the Indenture Trustee.
Corporate Trust Department. The Corporate Trust Department office of
the Indenture Trustee located at 79 South Main Street, Salt Lake City, Utah
84111, Attention: Corporate Trust Department, or such other office at which
the Indenture Trustee's corporate trust business shall be administered which
the Indenture Trustee shall have specified by notice in writing to the Lessee,
the Owner Participant and the Owner Trustee.
CRAF Program. Has the meaning specified in Section 7.01(f) of the
Lease.
Cut-Off Date. December 22, 1997.
Debt Portion. The amount specified as such on Schedule IV to the
Participation Agreement.
Debt Rate. The weighted average (based on Outstanding principal
amount) rate of interest on the Certificates issued pursuant to the Indenture.
Default. Any event or condition which, with the lapse of time or the
giving of notice, or both, would constitute an Event of Default.
Delivery Date. The date on which the Aircraft is delivered and sold
by AVSA to the Lessor and leased by the Lessor to the Lessee under the Lease,
which date shall also be the date of the initial Lease Supplement.
Delivery Notice. Notice of the Aircraft's Delivery Date, given by
the Lessee as provided in Section 3.01 of the Participation Agreement and
including any notice with respect to a postponed Delivery Date given by the
Lessee pursuant to Section 3.05(c) of the Participation Agreement.
Eligible Deposit Account. Either (a) a segregated account with an
Eligible Institution or (b) a segregated trust account with the corporate
trust department of a depository institution with corporate trust powers
organized under the laws of the United States or any state thereof, or the
District of Columbia, and whose deposits are insured by the Federal Deposit
Insurance Corporation, provided that such institution also has a combined
capital and surplus of at least $100,000,000 and a rating of A or better from
the Thomson Bank Watch.
Eligible Institution. A depository institution organized under the
laws of the United States or any one of the states thereof, or the District of
Columbia, or any domestic branch of a foreign bank, which in any such case at
all times (a) has either (x) a long-term unsecured debt rating of at least Aa2
by Moody's or (y) a short-term certificate of deposit rating of P-1 by
Moody's, (b) has either (x) a long-term unsecured debt rating of a least AA by
S&P or (y) a short-term certificate of deposit rating of A-1+ by S&P and (c)
is a member of the Federal Deposit Insurance Corporation.
Engine. Each of the two General Electric CF6-80C2-A5F engines listed
by its manufacturer's serial number in the initial Lease Supplement and leased
pursuant to the Lease, whether or not from time to time installed on the
Airframe or installed on any other airframe or on any other aircraft, and any
Replacement Engine which may from time to time be substituted for an Engine
pursuant to Section 7.02(a)(vii), 10.02(c), 10.03, 11.03, 11.04 or 12.02 of
the Lease, together with all Parts related thereto. Except as otherwise
provided, at such time as a Replacement Engine shall be so substituted and the
Engine for which the substitution is made shall be released from the Lien of
the Indenture, such replaced Engine shall cease to be an "Engine" under the
Lease. The term "Engines" means, as of any date of determination, both Engines
then leased to the Lessee pursuant to the Lease.
Engine Consent. The Engine Consent dated as of May 1, 1997, executed
by the Engine Manufacturer.
Engine Manufacturer. General Electric Company, a New York
corporation.
Engine Warranty Assignment. The Engine Warranty Assignment (Federal
Express Corporation Trust No. N674FE), dated as of May 1, 1997 between the
Lessor and the Lessee.
ERISA. The Employee Retirement Income Security Act of 1974, as
amended.
ERISA Plan. As defined in Section 8.01(b)(xii) of the Participation
Agreement.
Estimated Expense Amount. Has the meaning specified in Section
10.01(a) of the Participation Agreement.
Event of Default. Each of the events specified in Article 16 of the
Lease.
Event of Loss. Any of the following events with respect to the
Aircraft, the Airframe or any Engine: (i) loss of such property or its use (A)
for a period in excess of 60 days due to theft or disappearance or such longer
period, not to exceed 180 days from the end of such initial 60-day period, if
and so long as the location of such property is known to the Lessee and the
Lessee is diligently pursuing recovery of such property, or to the end of the
Term, if less (unless such theft or disappearance constitutes an Event of Loss
pursuant to (i)(B) or (ii) hereof) or (B) for a period in excess of 60 days
due to the destruction, damage beyond economic repair or rendition of such
property permanently unfit for normal use by Lessee for any reason whatsoever;
(ii) any damage to such property which results in an insurance settlement with
respect to such property on the basis of a total loss, or constructive or
compromised total loss; (iii) (1) condemnation, confiscation or seizure of, or
requisition of title to such property by the Government, any foreign
government or purported government or any agency or instrumentality thereof,
or (2) condemnation, confiscation, or seizure of, or requisition or taking of,
use of such property (A) by a foreign government or instrumentality or agency
of any such foreign government, for a period in excess of 180 days (or such
shorter period ending on the earlier of the expiration of the Term or on the
date on which an insurance settlement with respect to such property on the
basis of a total loss or constructive or compromised total loss shall occur)
or (B) by the Government for a period extending beyond the Term; and (iv) as a
result of any law, rule, regulation, order or other action by the Aeronautics
Authority or other governmental body having jurisdiction, the use of the
Aircraft or Airframe in the normal course of air transportation of cargo shall
have been prohibited by virtue of a condition affecting all Airbus A300-600
series aircraft equipped with engines of the same make and model as the
Engines for a period of twelve (12) consecutive months, unless the Lessee,
prior to the expiration of such twelve (12) month period, shall be diligently
carrying forward all steps which are necessary or desirable to permit the
normal use of the Aircraft or Airframe or, in any event, if such use of the
Aircraft or the Airframe shall have been prohibited for a period of
twenty-four (24) consecutive months or until the end of the Term, if earlier.
The date of such Event of Loss shall be (s) the 61st day or the 241st day, as
the case may be, following loss of such property or its use due to theft or
disappearance (or the end of the Term or the Lessee's abandonment of diligent
efforts to recover such property, if earlier); (t) the 61st day following the
date of any destruction, damage beyond economic repair or rendition of such
property permanently unfit for normal use; (u) the date of any insurance
settlement on the basis of a total loss or constructive or compromised total
loss; (v) the date of any condemnation, confiscation, seizure or requisition
of title of such property; (w) the 181st day following condemnation,
confiscation, seizure or requisition for use of such property by a foreign
government referred to in clause (iii)(2)(A) above (or the end of the Term or
the date of any insurance settlement described therein, if earlier than such
181st day); (x) the last day of the Term in the case of requisition for use of
such property by the Government; (y) the last day of the 12 month or 24 month
period, referred to in clause (iv) above (or if earlier, the end of the Term
or abandonment of the Lessee's efforts to restore the normal use of the
Aircraft). An Event of Loss with respect to the Aircraft shall be deemed to
have occurred if any Event of Loss occurs with respect to the Airframe.
Excepted Payments. Collectively, (i) indemnity, expense,
reimbursement or other payments paid or payable by the Lessee in respect of
the Owner Participant, the Owner Trustee in its individual capacity or any of
their respective successors, permitted assigns, directors, officers,
employees, servants and agents or Affiliates, pursuant to the Participation
Agreement or any other Operative Agreement or any indemnity hereafter granted
to the Owner Participant or the Owner Trustee in its individual capacity
pursuant to the Lease or the Participation Agreement, (ii) proceeds of public
liability insurance (or government indemnities in lieu thereof) in respect of
the Aircraft payable as a result of insurance claims paid for the benefit of,
or losses suffered by, the Owner Trustee or the Indenture Trustee in their
respective individual capacities or by the Owner Participant, or their
respective successors, permitted assigns or Affiliates, (iii) proceeds of
insurance maintained with respect to the Aircraft by the Owner Participant
(whether directly or through the Owner Trustee) maintained in accordance with
Section 13.05 of the Lease but not required under Article 13 of the Lease,
(iv) payments of Supplemental Rent by the Lessee in respect of any amounts
payable under the Tax Indemnity Agreement, (v) any purchase price paid to the
Owner Participant for its interest in the Trust Estate pursuant to Section
7.03(d) of the Participation Agreement, (vi) subject to Section 3.05 of the
Lease, payments constituting increases in Basic Rent attributable to payments
arising pursuant to Section 5 of the Tax Indemnity Agreement, (vii) any
payments in respect of interest to the extent attributable to payments
referred to in clauses (i) through (vi) above and (viii) any right to demand,
collect or otherwise receive and enforce the payment of any amount described
in clauses (i) through (v) and (vii) above (except with respect to interest
attributable to payments referred to in clause (vi) above).
Expense; Expenses. Have the meaning specified in Section 9.01(a) of
the Participation Agreement.
Fair Market Renewal Term. A term with respect to which the Lessee has
exercised its option to renew the Lease pursuant to the second paragraph of
Section 4.01(a) thereof and with respect to which the conditions set forth in
such Section 4.01(a) are met.
Fair Market Rental. An amount determined on the basis of, and equal
in amount to, the rental which would be obtained in an arm's-length
transaction between an informed and willing lessee and an informed and willing
lessor unaffiliated with such lessee, neither being under any compulsion to
lease. In such determination, it shall be assumed that the Aircraft is in the
condition required under the Lease in the case of return of the Aircraft
pursuant to Article 12 of the Lease and Fair Market Rental shall be determined
in accordance with the provisions of Section 4.03 of the Lease.
Fair Market Value. An amount determined on the basis of, and equal in
amount to, the value which would be obtained in an arm's-length transaction
between an informed and willing purchaser under no compulsion to buy and an
informed and willing seller unaffiliated with such purchaser and under no
compulsion to sell, assuming the Aircraft (or other property) is unencumbered
by the Lease. In such determination, except for purposes of Section 17.01 of
the Lease (when it shall be determined based upon the actual condition and
location of the Aircraft), it shall be assumed that the Aircraft is in the
condition required under the Lease in the case of return of the Aircraft
pursuant to Article 12 of the Lease and Fair Market Value shall be determined
in accordance with the provisions of Section 4.03 of the Lease.
Federal Aviation Administration; FAA. The United States Federal
Aviation Administration and any successor agency or agencies thereto.
Final Drawing. Has the meaning specified in Section 1.01 of the
Intercreditor Agreement.
Fixed Renewal Rent. Semi-annual payments of rent during the Fixed
Renewal Term equal to the lesser of (i) Fair Market Rental as determined as of
the commencement of such Fixed Renewal Term and (ii) 50% of the average actual
semi-annual Basic Rent payable during the Basic Term.
Fixed Renewal Term. The term with respect to which the Lessee has
exercised its option to renew the Lease pursuant to the first paragraph of
Section 4.01(a) thereof and with respect to which the conditions set forth in
such Section 4.01(a) are met.
FPO Price. Has the meaning set forth in Section 4.02(a)(F) of the
Lease.
French Pledge Agreement. The French Pledge Agreement dated as of May
1, 1997 between the Owner Trustee and the Indenture Trustee.
FSB. First Security Bank, National Association, a national banking
association.
Government. The United States of America or an agency or
instrumentality thereof the obligations of which bear the full faith and
credit of the United States of America.
GTA. The General Terms Agreement dated as of July 3, 1991 between the
Engine Manufacturer and the Lessee related to the purchase by the Lessee of the
Engines as originally executed or as modified, amended or supplemented in
accordance with the terms thereof, but only insofar as the General Terms
Agreement relates to the Engines, to the extent assigned to the Owner Trustee
pursuant to the Engine Warranty Assignment.
Holder of a Certificate; Certificate Holder; Holder. As of any
particular time, the Person in whose name a Certificate shall be registered
(but not including the holder of any Pass Through Certificate).
Indemnitee. Each of SSB, in its individual capacity and as Owner
Trustee and Lessor, the Subordination Agent, in its individual capacity and in
its capacity as Subordination Agent, each Liquidity Provider, the Owner
Participant, the Indenture Trustee, in its individual capacity and as trustee,
the Owner Participant Guarantor and any successor (including any trustee which
may succeed to the Lessor's interest under the Lease), Affiliate, assign,
officer, director, employee, agent and servant of any of the foregoing, the
Lessor's Estate and the Trust Indenture Estate. Neither the Pass Through
Trustee nor any holder of a Pass Through Certificate shall be deemed to be an
Indemnitee.
Indenture. The Trust Indenture and Security Agreement (Federal
Express Corporation Trust No. N674FE), dated as of May 1, 1997, between the
Lessor and the Indenture Trustee, as supplemented by the Indenture and
Security Agreement Supplement.
Indenture and Security Agreement Supplement. The Indenture and
Security Agreement Supplement No. 1 (Federal Express Corporation Trust No.
N674FE) to be dated the Delivery Date, substantially in the form of Exhibit A
to the Indenture.
Indenture Default. Any event or condition which, with the lapse of
time or the giving of notice, or both, would constitute an Indenture Event of
Default.
Indenture Documents. Has the meaning specified in the Granting
Clause of the Indenture.
Indenture Event of Default. Each of the events specified in Section
7.01 of the Indenture.
Indenture Trustee. First Security Bank, National Association, a
national banking association, not in its individual capacity but solely as
Indenture Trustee under the Indenture.
Indenture Trustee's Liens. Any Lien against, on or with respect to
the Aircraft, the Lessor's Estate or the Trust Indenture Estate or any part
thereof resulting from (i) claims against the Indenture Trustee not related to
the administration of the Trust Indenture Estate or any transactions pursuant
to the Indenture or any document included in the Trust Indenture Estate, (ii)
any act or omission of the Indenture Trustee which is not related to the
transactions contemplated by the Operative Agreements or is in violation of
any of the terms of the Operative Agreements or (iii) Taxes imposed against
the Indenture Trustee in its individual capacity in respect of which the Lessee
has not indemnified (and is not obligated to indemnify) the Indenture Trustee
in such capacity.
Independent Appraisal. An appraisal conducted pursuant to Section
4.03 of the Lease.
Independent Investment Banker. An independent investment banking
institution of national standing appointed by the Lessee that is independent
in fact, does not have any direct financial interests, or any material
indirect financial interest, in the Lessee or any Affiliate of the Lessee, and
is not connected with the Lessee or any Affiliate of the Lessee, as an
officer, employee, promoter, underwriter, trustee, partner, director or Person
performing similar functions; provided, that if the Indenture Trustee shall
not have received written notice of such an appointment at least 10 days prior
to the Prepayment Date, "Independent Investment Banker" shall mean such an
institution appointed by the Indenture Trustee.
Intercreditor Agreement. The Intercreditor Agreement dated as of May
1, 1997, among the Pass Through Trustee, the Class A Liquidity Provider, the
Class B Liquidity Provider and the Subordination Agent.
Interest Drawing. Has the meaning specified in Section 1.01 of the
Intercreditor Agreement.
Invoice. The invoice for the Aircraft given by AVSA to the Lessor.
Lease. The Lease Agreement (Federal Express Corporation Trust No.
N674FE) dated as of May 1, 1997, entered into by the Lessor and the Lessee
concurrently with the execution and delivery of the Indenture, including,
without limitation, supplementation by one or more Lease Supplements entered
into pursuant to the applicable provisions of the Lease.
Lease Supplement. The Lease Supplement No. 1 (Federal Express
Corporation Trust No. N674FE) to be dated the Delivery Date, substantially in
the form of Exhibit A to the Lease.
Lease Term. The period commencing on the Delivery Date and ending at
the end of the Basic Term.
Lessee. Federal Express Corporation, a Delaware corporation.
Lessee Documents. Has the meaning set forth in Section 6.01(b) of the
Participation Agreement.
Lessor. State Street Bank and Trust Company of Connecticut, National
Association, a national banking association, not in its individual capacity
but solely as Owner Trustee under the Trust Agreement.
Lessor's Estate. All estate, right, title and interest of the Owner
Trustee in and to the Collateral Account, the Liquid Collateral, the Aircraft,
the Lease, any Lease Supplement, the Participation Agreement, AVSA's FAA Bill
of Sale, AVSA's Warranty Bill of Sale, the Airbus Guaranty, the Purchase
Agreement, the Purchase Agreement Assignment, the Consent and Agreement, the
AVSA Consent and Agreement, the Consent and Guaranty (to the extent assigned
by the Purchase Agreement Assignment), any Ancillary Agreement, the GTA, the
Engine Warranty Assignment, the Engine Consent, any warranty with respect to
the Airframe and the Engines, all amounts of Basic Rent and Supplemental Rent,
including without limitation, insurance proceeds (other than insurance
proceeds payable to or for the benefit of the Owner Trustee in its individual
capacity or the Owner Participant) and requisition, indemnity or other
payments of any kind for or with respect to the Aircraft (except amounts owing
to the Owner Participant, to the Indenture Trustee, to the Owner Trustee in its
individual capacity, or to any of their respective directors, officers,
employees and agents pursuant to Articles 8 and 9 of the Participation
Agreement), and all other property of the Owner Trustee purportedly subjected
to the Lien of the Indenture by the Granting Clause thereof; provided that in
no event shall "Lessor's Estate" include any Excepted Payment.
Lessor's Liens. Liens against, on or with respect to the Aircraft,
the Lessor's Estate or the Trust Indenture Estate or any part thereof, title
thereto or any interest therein arising as a result of (i) claims against the
Lessor, in its individual capacity or as Owner Trustee, or the Owner
Participant, in each case not related to the transactions contemplated by the
Operative Agreements, (ii) acts or omissions of the Lessor in its individual
capacity or as Owner Trustee, and, in the case of the Lessor in its individual
capacity, arising from its gross negligence or willful misconduct or expressly
prohibited under the Operative Agreements and any act or omission of the Owner
Participant which is in violation of any of the terms of the Operative
Agreements, (iii) Taxes or Expenses imposed against the Lessor, in its
individual capacity or as Owner Trustee, Owner Participant, Lessor's Estate or
the trust created by the Trust Agreement which are not required to be
indemnified against by the Lessee pursuant to the Participation Agreement by
reason of Section 8.01(b) or 9.01(b) thereof and which are not required to be
indemnified against by the Lessee pursuant to the Tax Indemnity Agreement, or
(iv) claims against the Lessor or the Owner Participant arising from the
voluntary transfer by the Lessor or the Owner Participant of its interests in
the Aircraft other than a transfer of the Aircraft pursuant to Section 4.02(a)
or Article 10 or 11 of the Lease and other than a transfer pursuant to the
exercise of the remedies set forth in Article 17 of the Lease.
Lien. Any mortgage, pledge, lien, charge, encumbrance, lease or
security interest or other similar interest.
Liquid Collateral. All amounts and securities deposited from time to
time in the Collateral Account and all the products, investments, earnings and
proceeds of the foregoing, including, but not limited to, all proceeds of the
investment or conversion thereof, voluntary or involuntary, into cash,
Specified Investments or other property, all rights to payment of any and
every kind, and other forms of obligations, and instruments and other property
which at any time constitute all or part or are included in the proceeds of
any of the foregoing.
Liquidity Facility. Has the meaning specified in Section 1.01 of the
Intercreditor Agreement.
Liquidity Provider. Has the meaning specified in Section 1.01 of the
Intercreditor Agreement.
Losses. Has the meaning specified in Section 17.02(a) of the
Participation Agreement.
Loss Payee. Has the meaning specified in Section 13.02(b)(i) of the
Lease.
Majority in Interest of Certificate Holders. As of a particular date
of determination, the Holders of more than 50% of the aggregate unpaid
principal amount of all Certificates outstanding as of such date excluding for
purposes of this definition any Certificates held by (i) the Owner Trustee or
the Owner Participant or any interests of the Owner Participant unless all
Certificates then outstanding shall be held by the Owner Participant, (ii) the
Lessee or (iii) any Affiliate of any thereof.
Make-Whole Premium. An amount determined as of the day before the
applicable Prepayment Date (or date of purchase, as the case may be) which an
Independent Investment Banker determines to be equal to the excess, if any, of
(i) the present value of the remaining scheduled payments of such principal
amount or portion thereof and interest thereon (excluding interest accrued
from the immediately preceding Payment Date to such Prepayment Date or date of
purchase, as the case may be) to the Maturity of such Certificate in
accordance with generally accepted financial practices assuming a 360-day year
consisting of twelve 30-day months at a discount rate equal to the Treasury
Yield, all as determined by the Independent Investment Banker over (ii) the
outstanding principal amount of such Certificate plus accrued interest.
Manufacturer. Airbus Industrie G.I.E., a groupement d'interet
economique formed under the laws of France.
Maturity. With respect to any Certificate, the date on which the
final principal amount of such Certificate is scheduled to be due and payable.
Moody's. Moody's Investors Service, Inc.
Net Present Value of Rents. The net present value, as of the
Delivery Date, of Basic Rent set forth in Schedule II of the Lease, discounted
at a rate equal to the Debt Rate per annum compounded semi-annually.
Non-U.S. Person. Any Person other than a U.S. Person.
Obsolete Parts. Parts which are severable from the Aircraft in
accordance with clauses (ii) and (iii) of the proviso to Section 9.02(b) of
the Lease and the Lessee in good faith determines to be obsolete or no longer
suitable or appropriate for use on the Airframe or any Engine.
Officer's Certificate. When delivered pursuant to the Indenture, a
certificate signed by a Responsible Officer of the Lessee or the Owner
Trustee, as the case may be, and delivered to the Indenture Trustee. Each
such certificate shall include the statements provided for in Section 15.07 of
the Indenture.
Operative Agreements. The Participation Agreement, the Trust
Agreement, AVSA's FAA Bill of Sale, AVSA's Warranty Bill of Sale, the Airbus
Guaranty, the Purchase Agreement, the Purchase Agreement Assignment, the GTA,
the Engine Warranty Assignment, the French Pledge Agreement, the Lease, the
Lease Supplement, the Owner Participant Guaranty, the Owner Trustee Guaranty,
if any, any Ancillary Agreement entered into by or with the written consent of
the Indenture Trustee, which by its terms is an Operative Agreement, the
Certificates outstanding at the time of reference, the Indenture, the
Indenture and Security Agreement Supplement, the Consent and Agreement, the
AVSA Consent and Agreement, the Consent and Guaranty (to the extent assigned
by the Purchase Agreement Assignment), the Engine Consent, the Tax Indemnity
Agreement, each Liquidity Facility, the Intercreditor Agreement, the
Collateral Account Control Agreement and any Assignment and Assumption
Agreement.
Opinion of Counsel. When delivered pursuant to the Indenture, a
written opinion of legal counsel, who in the case of counsel (a) for the
Lessee may be (i) an attorney employed by the Lessee who is generally
empowered to deliver such written opinions, (ii) Davis Polk & Wardwell or a
successor firm or (iii) other counsel designated by the Lessee and reasonably
satisfactory to the Indenture Trustee and (b) for the Owner Trustee or the
Indenture Trustee, an attorney selected by such Person and, in the case of the
Owner Trustee, reasonably satisfactory to the Indenture Trustee.
Outstanding. When used with respect to Certificates, as of the date
of determination and subject to the provisions of Section 10.04 of the
Indenture, all Certificates theretofore executed and delivered under the
Indenture, with the exception of the following:
(i) Certificates theretofore cancelled by the Indenture Trustee or
delivered to the Indenture Trustee for cancellation pursuant to
Section 2.08 of the Indenture or otherwise;
(ii) Certificates for which prepayment money in the necessary amount
has been theretofore deposited with the Indenture Trustee in trust
for the Holders of such Certificates pursuant to Section 14.01 of the
Indenture; provided, that if such Certificates are to be prepaid,
notice of such prepayment has been duly given pursuant to the
Indenture or provision therefor satisfactory to the Indenture Trustee
has been made; and
(iii) Certificates in exchange for or in lieu of which other
Certificates have been executed and delivered pursuant to Article II
of the Indenture.
Owner Participant. The trustor originally named in the Trust
Agreement and any successor thereto, and any Person to which the Owner
Participant transfers, in accordance with the Trust Agreement, its right,
title and interest in and to the Operative Agreements and the Lessor's Estate.
Owner Participant Guarantor. Philip Morris Capital Corporation, a
Delaware corporation, and any other provider of an Owner Participant Guaranty.
Owner Participant Guaranty. The Owner Participant Guaranty dated the
Certificate Closing Date by the Owner Participant Guarantor in favor of the
Lessee, the Owner Trustee, the Indenture Trustee and the Pass Through Trustee,
and any guaranty delivered in compliance with Section 7.03(d) of the
Participation Agreement.
Owner Trustee. SSB, not in its individual capacity except as
otherwise expressly stated, but solely as Owner Trustee under the Trust
Agreement.
Owner Trustee Guarantor. The provider of an Owner Trustee Guaranty.
Owner Trustee Guaranty. Any guaranty delivered in compliance with
Section 11.01(b)(ii) of the Participation Agreement.
Owner's Economic Return. The Owner Participant's anticipated net
after-tax book yield and aggregate after-tax cash during the Basic Term
utilizing the multiple investment sinking fund method of analysis, computed on
the basis of the same methodology and assumptions as were utilized by the
Owner Participant in determining Basic Rent, Stipulated Loss Value and
Termination Value percentages, as the case may be, as such assumptions may be
adjusted for events which have been the basis of adjustments to Rent pursuant
to Section 3.04 of the Lease.
Participation Agreement. The Participation Agreement (Federal Express
Corporation Trust No. N674FE), dated as of May 1, 1997, among the Lessee, the
Owner Trustee not in its individual capacity except as otherwise expressly
provided therein, but solely as owner trustee, the Owner Participant, the
Indenture Trustee not in its individual capacity except as otherwise expressly
provided therein, but solely as indenture trustee, the Pass Through Trustee
not in its individual capacity except as otherwise expressly provided therein,
but solely as pass through trustee and the Subordination Agent not in its
individual capacity except as otherwise expressly provided therein, but solely
as subordination agent.
Parts. All appliances, parts, components, instruments, appurtenances,
accessories, furnishings and other equipment of whatever nature (other than
complete Engines or engines) which may from time to time be incorporated or
installed in or attached to the Airframe or any Engine or title to which
remains vested in the Lessor pursuant to Article 8 of the Lease.
Pass Through Agreement. The Pass Through Trust Agreement dated as of
May 1, 1997 between the Lessee and the Pass Through Trustee.
Pass Through Certificates. Any of the Pass Through Certificates,
1997-1-A, the Pass Through Certificates, 1997-1-B or the Pass Through
Certificates, 1997-1-C, in each case as issued by the related Pass Through
Trust; and "Pass Through Certificates" means all of the Pass Through
Certificates issued by each of the Pass Through Trusts.
Pass Through Closing Date. The Business Day on which the sale of the
Pass Through Certificates to the Underwriters pursuant to the Underwriting
Agreement takes place.
Pass Through Trust. The Federal Express Corporation 1997-1 Pass
Through Trust Class A, Federal Express Corporation 1997-1 Pass Through Trust
Class B and Federal Express Corporation 1997-1 Pass Through Trust Class C, in
each case formed pursuant to the related Series Supplement in accordance with
the Pass Through Agreement; and "Pass Through Trusts" means all of such Pass
Through Trusts.
Pass Through Trustee. First Security Bank, National Association, a
national banking association, in its capacity as Pass Through Trustee under
the Pass Through Agreement and each Pass Through Trust.
Past Due Rate. In respect of (A) any amount payable to the Owner
Participant or the Owner Trustee a rate per annum during the period from and
including the due date to but excluding the date on which such amount is paid
in full equal to 2% plus the Debt Rate and (B) any principal of or interest on
any Certificate or any other amount payable under the Indenture, any
Certificate or any other Operative Agreement that is not paid when due
(whether at Maturity, by acceleration, by optional or mandatory prepayment or
otherwise) to any Holder, the Indenture Trustee or the Pass Through Trustee, a
rate per annum during the period from and including the due date to but
excluding the date on which such amount is paid in full equal to (i) in the
case of any such amount payable to the Holder of any Certificate, 2% plus the
interest rate applicable to such Certificate and (ii) in the case of any other
such amount, 2% plus the Debt Rate.
Payment Date. Each January 15 and July 15 commencing on July 15,
1997.
Payment Default. Any event specified in Section 16.01(a) or 16.01(b)
of the Lease which with the giving of notice or lapse of time or both would
constitute an Event of Default.
Permitted Investments. Those investments enumerated in Section
23.01(a) (i), (ii), (iii) and (iv) of the Lease.
Person. Any individual, sole proprietorship, partnership, joint
venture, joint stock company, trust, unincorporated organization, association,
corporation, institution, entity or government (federal, state, local,
foreign or any agency, instrumentality, division or body thereof).
Preliminary Notice. Has the meaning specified in Section 4.01(a) of
the Lease.
Premium Termination Date. With respect to the Series A Certificates,
December 27, 2011, with respect to the Series B Certificates, February 5, 2010
and with respect to the Series C Certificates, March 22, 2007.
Prepayment Date. Has the meaning specified in Section 6.02(b) of the
Indenture.
Prepayment Price. Has the meaning specified in Section 6.02(b) of the
Indenture.
Principal Amount. With respect to a Certificate means the stated
original principal amount of such Certificate and, with respect to all
Certificates, means the aggregate stated original principal amounts of all
Certificates.
Property. Any right or interest in or to property of any kind
whatsoever, whether real, personal or mixed and whether tangible or intangible.
Proposed Termination Date. The proposed date of termination of the
Lease as specified by the Lessee in its notice given pursuant to Section 10.01
thereof.
Purchase Agreement. The Airbus A300-600R Freighter Purchase Agreement,
dated as of July 3, 1991 between AVSA and the Lessee, including all exhibits,
appendices and letter agreements attached thereto as originally executed or as
modified, amended or supplemented in accordance with the terms thereof, but
only to the extent that the foregoing relates to the Aircraft and to the
extent assigned pursuant to the Purchase Agreement Assignment.
Purchase Agreement Assignment. The Purchase Agreement Assignment
(Federal Express Corporation Trust No. N674FE), dated as of May 1, 1997 between
the Lessor and the Lessee.
Purchase Price. Has the meaning specified in Ancillary Agreement II.
Record Date. With respect to Payment Dates under the Indenture
(except a date for payment of defaulted interest), December 31 for January 15
Payment Dates and June 30 for July 15 Payment Dates, whether or not such date
is a Business Day.
Recourse Amount. Has the meaning specified in Section 17.10 of the
Participation Agreement.
Refinancing. A non-recourse loan to the Lessor arranged pursuant to
Section 15.01 of the Participation Agreement.
Register. Has the meaning set forth in Section 3.02 of the Indenture.
Registrar. Has the meaning set forth in Section 3.02 of the
Indenture.
Regulation D. Regulation D of the Board of Governors of the Federal
Reserve System (or any successor), as the same may be modified and
supplemented and in effect from time to time.
Related Indentures. Collectively, the Trust Indenture and Security
Agreement for each of Federal Express Corporation Trust Nos. N670FE, N671FE,
N672FE, N673FE, N583FE and N584FE, each dated as of May 1, 1997, between the
Owner Trustee and the Indenture Trustee, the Trust Indenture and Security
Agreement for Federal Express Corporation Trust No. N581FE, dated as of May 1,
1997, between Wilmington Trust Company, as owner trustee and the Indenture
Trustee, and the Trust Indenture and Security Agreement for Federal Express
Corporation Trust No. N587FE, dated as of December 1, 1996, as amended and
restated as of May 1, 1997, between Wilmington Trust Company, as owner trustee
and the Indenture Trustee.
Remaining Weighted Average Life. On a given date with respect to any
Certificate the number of days equal to the quotient obtained by dividing (i)
the sum of each of the products obtained by multiplying (a) the amount of each
then remaining scheduled payment of principal of such Certificate by (b) the
number of days from and including such prepayment date to but excluding the
dates on which each such payment of principal is scheduled to be made; by (ii)
the then outstanding principal amount of such Certificate.
Renewal Rent. The amount payable by the Lessee as rent in accordance
with Section 4.01 of the Lease during any Renewal Term.
Renewal Term. One or more terms with respect to which the Lessee has
exercised its option to renew the Lease pursuant to Section 4.01(a) thereof.
Rent. All payments due from the Lessee under the Lease as Basic Rent,
Renewal Rent and Supplemental Rent, collectively.
Rent Payment Date. December 23, 2020 and each January 15 and July 15
commencing on January 15, 1998.
Reoptimization Date. Has the meaning specified in Section 15.02(a)
of the Participation Agreement.
Replacement Aircraft. Any aircraft substituted for the Aircraft
pursuant to Section 11.03(a) of the Lease.
Replacement Airframe. Has the meaning set forth in Section 11.03 of
the Lease.
Replacement Engine. A General Electric CF6-80C2-A5F engine (or an
engine of the same or another manufacturer) of equal or greater value,
airworthiness, remaining useful life and utility as the Engine being replaced,
together with all Parts relating to such engine; provided, however, that if
such replacement engine is not a General Electric CF6-80C2-A5F engine, such
replacement engine must then be commonly used in the commercial aviation
industry on Airbus A300-600 airframes.
Responsible Officer. With respect to the Owner Trustee (except for
purposes of the Trust Agreement in which case the definition of Responsible
Officer set forth in Section 3.10 of the Trust Agreement is applicable) or the
Indenture Trustee, any officer in its Corporate Trust Administration, as the
case may be, designated by such Person to perform obligations under the
Operative Agreements, and with respect to any other party, any corporate
officer or (except in the case of the Owner Participant) other employee of a
party who, in the normal performance of his or her operational
responsibilities, with respect to the subject matter of any covenant,
agreement or obligation of such party pursuant to any Operative Agreement,
would have responsibility for and knowledge of such matter and the
requirements of any Operative Agreement with respect thereto.
S&P. Standard & Poor's Ratings Group.
Scheduled Delivery Date. The Delivery Date specified in the Delivery
Notice pursuant to Section 3.01 of the Participation Agreement.
SEC. The Securities and Exchange Commission of the United States and
any successor agencies or authorities.
Secured Obligations. Has the meaning specified in the Granting
Clause of the Indenture.
Securities Act. The Securities Act of 1933, as amended.
Series "A" or "Series A Certificates". Certificates issued and
designated as "Series A" under the Indenture, in the Principal Amount and
maturities and bearing interest as specified in Exhibit B to the Indenture
under the heading "Series A".
Series "B" or "Series B Certificates". Certificates issued and
designated as "Series B" under the Indenture, in the Principal Amount and
maturities and bearing interest as specified in Exhibit B to the Indenture
under the heading "Series B".
Series "C" or "Series C Certificates". Certificates issued and
designated as "Series C" under the Indenture, in the Principal Amount and
maturities and bearing interest as specified in Exhibit B to the Indenture
under the heading "Series C".
Series Supplement or Series Supplements. The Series Supplement
1997-1-A to be executed and delivered by the Lessee and the Pass Through
Trustee, the Series Supplement 1997-1-B to be executed and delivered by the
Lessee and the Pass Through Trustee or the Series Supplement 1997-1-C to be
executed and delivered by the Lessee and the Pass Through Trustee.
Sinking Fund Redemption Date. Has the meaning specified in Section
6.06 of the Indenture.
Sinking Fund Redemption Price. Has the meaning specified in Section
6.06 of the Indenture.
Special Aviation Counsel. Daugherty, Fowler & Peregrin.
Specified Investments. Shall mean (a) direct obligations of the
United States of America or obligations fully guaranteed by the United States
of America; (b) commercial paper rated A-1/P-1 by S&P and Moody's,
respectively or, if such ratings are unavailable, rated by any nationally
recognized rating organization in the United States equal to the highest
rating assigned by such rating organization; (c) investments in negotiable
certificates of deposit, time deposits, banker's acceptances, commercial paper
or other direct obligations of, or obligations guaranteed by, commercial banks
organized under the laws of the United States or of any political subdivision
thereof (or any U.S. branch of a foreign bank) with issuer ratings of at least
B/C by Thomson Bankwatch, having maturities no later than 90 days following
the date of such investment; (d) overnight federal funds transactions with
members of the Federal Reserve System arranged by federal funds brokers; or
(e) overnight repurchase agreements with respect to the securities described
in clause (a) above entered into with an office of a bank or trust company
which is located in the United States of America or any bank or trust company
which is organized under the laws of the United States or any state thereof
and has capital, surplus and undivided profits aggregating at least $500
million.
SSB. State Street Bank and Trust Company of Connecticut, National
Association, a national banking association.
Stipulated Loss Value. As of any Stipulated Loss Value Determination
Date during the Basic Term, the amount determined by multiplying the Purchase
Price by the percentage set forth in Schedule III of the Lease under the
heading "Stipulated Loss Value Factor" opposite such date (as such Schedule
III may be adjusted from time to time as provided in Section 3.04 of the
Lease), and during any Renewal Term, the amount determined pursuant to Section
4.01(b) of the Lease. Notwithstanding any other provisions of the Lease or
the Participation Agreement or the Indenture, each Stipulated Loss Value for
the Aircraft shall be, under any circumstances and in any event, an amount,
together with so much of the arrears portion of Basic Rent due and owing
through the date of payment of Stipulated Loss Value as does not constitute an
Excepted Payment, at least sufficient to pay in full as of such date of
payment the aggregate unpaid principal amount of and accrued interest on the
Certificates outstanding on such date of payment. Subject to the immediately
preceding sentence, it is understood and agreed that the amounts set forth on
Schedule III of the Lease, for dates other than Rent Payment Dates on which
arrears Basic Rent is due, fully reflect appropriate Basic Rent accruals and
credits of unearned Basic Rent through such date and, accordingly, no further
accrual or credit shall be required through such date whenever Stipulated Loss
Value is to be calculated with reference to any such date; provided that if
amounts in respect of Stipulated Loss Value are payable under the Operative
Agreements after the Stipulated Loss Determination Date in respect of which
such Stipulated Loss Value was determined, the Lessor shall be compensated
during the period from the Stipulated Loss Determination Date to such payment
date in accordance with the provisions of the Operative Agreements.
Stipulated Loss Value Determination Date. Each date set forth on
Schedule III of the Lease.
Subordination Agent. First Security Bank, National Association, a
national banking association, not in its individual capacity but solely as
Subordination Agent.
Supplemental Rent. (a) All amounts, liabilities and obligations
which the Lessee assumes or agrees to perform or pay under the Lease or under
the Participation Agreement or Tax Indemnity Agreement or any Ancillary
Agreement or any other Operative Agreement to the Lessor, the Owner
Participant, the Indenture Trustee, the Subordination Agent, any Liquidity
Provider or others, including, without limitation, payments of Stipulated Loss
Value, FPO Price and amounts calculated by reference to Termination Value, any
amounts of Make-Whole Premium payable under the Indenture to the extent
provided in Section 3.03 of the Lease, and all amounts required to be paid by
Lessee under the agreements, covenants and indemnities contained in the Lease
or in the Participation Agreement or the Tax Indemnity Agreement or any other
Operative Agreement, but excluding Basic Rent and (b) all amounts that the
Owner Trustee is obligated to pay in accordance with clause (b) of the last
paragraph of Section 2.04 of the Indenture.
Tax. Has the meaning set forth in Section 8.01(a) of the
Participation Agreement.
Tax Indemnity Agreement. The Tax Indemnity Agreement (Federal
Express Corporation Trust No. N674FE), dated as of May 1, 1997, between the
Lessee and the Owner Participant.
Term. The Basic Term of the lease for the Aircraft under the Lease
and, if renewed pursuant to Section 4.01 of the Lease, each Renewal Term for
the Aircraft for which the Lease is renewed, or such earlier date on which the
Lease is terminated pursuant to its terms.
Termination Date. A Rent Payment Date during the Basic Term that is
on or after December 31, 2004 in the case of Article 10 of the Lease, and in
the case of (i) Section 4.02(a)(A) of the Lease, the Rent Payment Date falling
on July 15, 2017, (ii) Section 4.02(a)(D) or (E) of the Lease, a Rent
Payment Date that is on or after the seventh anniversary of the Delivery Date
and (iii) Section 4.02(a)(F) of the Lease, the last day of the Basic Term.
Termination Value. As of any Termination Date, the amount determined
by multiplying the Purchase Price by the percentage set forth in Schedule IV
of the Lease under the heading "Termination Value Factor" opposite such
Termination Date (as such Schedule IV may be adjusted from time to time as
provided in Section 3.04 of the Lease). Notwithstanding any other provisions
of the Lease, the Participation Agreement or the Indenture, each Termination
Value shall be, under any circumstances and in any event, an amount, together
with so much of the arrears portion of Basic Rent due and owing through the
date of payment of any amount calculated by reference to Termination Value as
does not constitute an Excepted Payment, at least sufficient to pay in full as
of such date of payment the aggregate unpaid principal amount of and accrued
interest on the Certificates outstanding on such date of payment. Subject to
the immediately preceding sentence, it is understood and agreed that the
amounts set forth on Schedule IV of the Lease, for dates other than Rent
Payment Dates on which arrears Basic Rent is due, fully reflect appropriate
Basic Rent accruals and credits of unearned Basic Rent through such date and,
accordingly, no further accrual or credit shall be required through such date
whenever Termination Value is to be calculated with reference to any such
date; provided that if amounts in respect of Termination Value are payable
under the Operative Agreements after the Termination Date in respect of which
such Termination Value was determined, the Lessor shall be compensated during
the period from the Termination Date to such payment date in accordance with
the provisions of the Operative Agreements.
Transaction Costs. Those costs and expenses set forth in Section
10.01(a) of the Participation Agreement.
Transportation Code. Title 49 of the United States Code, as amended
and in effect on the date of the Lease or as subsequently amended, or any
successor or substituted legislation at the time in effect and applicable, and
the regulations promulgated pursuant thereto.
Treasury Yield. At the time of determination with respect to any
Certificate, the interest rate (expressed as a semi-annual equivalent and as a
decimal and, in the case of United States Treasury bills, converted to a bond
equivalent yield) determined to be the per annum rate equal to the semi-annual
yield to maturity for United States Treasury securities maturing on the
Average Life Date on such Certificate and trading in the public securities
markets either as determined by interpolation between the most recent weekly
average yield to maturity for two series of United States Treasury securities,
trading in public securities markets, (i) one maturing as close as possible to,
but earlier than, the Average Life Date of such Certificate and (ii) the other
maturing as close as possible to, but later than, the Average Life Date of
such Certificate. In each case as published in the most recent H.15(519) or,
if a weekly average yield to maturity for United States Treasury securities
maturing on the Average Life Date of such Certificate is reported on the most
recent H.15 (519), such weekly average yield to maturity as published in such
H.15(919). "H.15(519)" means the weekly statistical release designated as
such, or any successor publication, published by the Board of Governors of the
Federal Reserve System. The date of determination of a Make-Whole Premium
will be the third Business Day prior to the applicable prepayment date and the
"most recent H.15(519)" means the H.15(519) published prior to the close of
business on the third Business Day prior to the applicable prepayment date.
Trust Agreement. The Trust Agreement (Federal Express Corporation
Trust No. N674FE), dated as of May 1, 1997, between the Owner Participant and
the Owner Trustee in its individual capacity.
Trust Estate. The Lessor's Estate.
Trust Indenture Act. The Trust Indenture Act of 1939, as amended.
Trust Indenture Estate. All estate, right, title and interest of the
Indenture Trustee in and to any of the property, rights, interests and
privileges granted to the Indenture Trustee pursuant to the Granting Clause of
the Indenture, other than Excepted Payments and any and all other rights of
the Owner Trustee or the Owner Participant expressly reserved to the Owner
Trustee or the Owner Participant pursuant to the Indenture.
Underwriters. Morgan Stanley & Co. Incorporated, First Chicago
Capital Markets, Inc., Goldman, Sachs & Co. and J.P. Morgan & Co.
Underwriting Agreement. The Underwriting Agreement dated May 22, 1997
among the Lessee and the Underwriters.
United States, U.S. or US. The United States of America.
U.S. Air Carrier. Any United States air carrier as to which there is
in force a certificate issued pursuant to Section 41102(a) or Section 41103 of
the Transportation Code, and as to which there is in force an air carrier
operating certificate issued pursuant to Chapter 447 of the Transportation
Code and Part 121 of the regulations under such Transportation Code, for
aircraft capable of carrying ten (10) or more individuals or 6,000 pounds or
more of cargo, or which may operate as an air carrier by certification or
otherwise under any successor or substitute provision thereof or in absence
thereof.
U.S. Person. A Person described in Section 7701(a)(30) of the Code.
SCHEDULE III
PERMITTED COUNTRY LIST
Australia Luxembourg
Austria Netherlands
Belgium New Zealand
Canada Norway
Denmark Philippines
Finland Portugal
France Republic of China (Taiwan)
Germany Singapore
Greece Sweden
Iceland Switzerland
Ireland Thailand
Japan United Kingdom
SCHEDULE IV
DEBT PORTION
Debt Portion $61,835,000
- ------------
EXHIBIT A(1)(a)(i)
[Letterhead of Federal Express]
[Certificate Closing Date]
To the Addressees Listed on Schedule A Attached
Re: Federal Express Corporation Trust No. N674FE
Ladies and Gentlemen:
I am the Vice President - Law of Federal Express
Corporation, a Delaware corporation ("Federal"), and am familiar with the
transactions contemplated by the Participation Agreement (Federal Express
Corporation Trust No. N674FE), dated as of May 1, 1997 (the "Participation
Agreement"), among Federal, as Lessee, PMCC Leasing Corporation, as Owner
Participant, State Street Bank and Trust Company of Connecticut, National
Association, not in its individual capacity, except as otherwise stated,
but solely as Owner Trustee, and First Security Bank, National Association,
not in its individual capacity, except as otherwise stated, but solely as
Indenture Trustee, Pass Through Trustee and Subordination Agent, relating
to the Aircraft. This opinion is being delivered pursuant to Section
4.01(k)(i) of the Participation Agreement. Capitalized terms not otherwise
defined herein have the meanings assigned thereto in the Participation
Agreement.
The Participation Agreement provides, among other things,
for the financing on the Delivery Date of a portion of the Owner Trustee's
payment of the Purchase Price of one Airbus A300F4-605R aircraft (the
"Aircraft"), using the proceeds from the public offering of the Pass
Through Certificates. Three Classes of Pass Through Certificates will be
issued by three Pass Through Trusts formed to acquire, among other
securities, the Certificates bearing a particular interest rate and having
a particular Maturity that will be issued under the Indenture.
In connection with the opinions expressed below, I have
examined or caused to be examined by attorneys under my supervision, (i)
executed counterparts of the Pass Through Agreement, the Series Supplements
and the Operative Agreements to be delivered on the Certificate Closing
Date (the "Certificate Closing Date Documents") and (ii) the forms of the
Operative Agreements to be delivered on the Delivery Date. We have relied
upon originals or copies, certified or otherwise identified to our
satisfaction, of such corporate records, documents and other instruments as
in our judgment are relevant to rendering the opinions expressed below. As
to any facts material to the opinions expressed below (other than any
thereof relating to Federal), we have relied upon the representations and
warranties made in the Certificate Closing Date Documents, the accuracy of
which we have not independently investigated or verified. In such
examination, we have assumed the genuineness of all signatures (other than
the signatures of Federal) and the authenticity of all documents submitted
to us as originals and the conformity with the originals of all documents
submitted to us as copies. We have also assumed that each of the parties
to each of the Certificate Closing Date Documents, other than Federal, has
full power, authority and legal right to enter into such Certificate
Closing Date Documents and that each such Certificate Closing Date Document
has been duly authorized, executed and delivered by each of such parties.
Based on the foregoing, it is my opinion that:
1. Federal is a corporation duly incorporated, validly
existing and in good standing under the laws of the State of Delaware, is a
"citizen of the United States" within the meaning of Section 40102(a)(15)
of the Transportation Code, and has or had, on the date of execution
thereof, the corporate power and authority to carry on its business as
currently conducted and to enter into and perform its obligations under the
Certificate Closing Date Documents to which it is a party. Federal is duly
qualified to do business and is in good standing in the State of Tennessee
and each other state of the United States in which its operations or the
nature of its business requires Federal to so qualify, except where the
failure to so qualify would not have a material adverse impact on Federal
or its business.
2. Federal possesses all necessary certificates,
franchises, licenses, permits, rights and concessions and consents which
are material to the operation of the routes flown by it and the conduct of
its business and operations as currently conducted, and each such
certificate, franchise, license, permit, right and concession and consent
is in full force and effect.
3. Each of the Certificate Closing Date Documents to which
Federal is a party has or had, on the date of execution thereof, been duly
authorized, executed and delivered by Federal and each constitutes the
legal, valid and binding obligation of Federal enforceable against Federal
in accordance with its terms. Each of the Certificate Closing Date
Documents to which Federal is to be a party and which are to be executed on
the Delivery Date has been duly authorized by Federal.
4. Neither the execution and delivery by Federal of the
Certificate Closing Date Documents to which Federal is a party, nor the
consummation of any of the transactions by Federal contemplated thereby,
nor the performance of the obligations thereunder by Federal, did at the
time of execution and delivery, or does presently (a) require any
stockholder approval or violate the certificate of incorporation or by-laws
of Federal or (b) conflict with or contravene the provisions of, or
constitute a default under, or result in the creation of any Lien (other
than Liens permitted under Section 6.01(a) of the Lease) upon the property
of Federal under any law, governmental rule or regulation, or the charter
or bylaws of Federal or any order, writ, injunction or decree of any court
or governmental authority against Federal or by which any of its properties
may be bound or any indenture, mortgage, contract or other agreement known
to me to which Federal is a party or by which it may be bound or, require
the approval or consent of any trustee or the holders of any indebtedness
or obligations of Federal.
5. Neither the execution and delivery by Federal of the
Certificate Closing Date Documents to which it is a party, nor the
consummation of any transactions by Federal contemplated thereby, nor the
performance of the obligations thereunder by Federal, did or does, as the
case may be, (a) require the consent or approval of, the giving of notice
to, or (except as described or contemplated in the Participation Agreement
and the Lease, all of which are required to be performed on or prior to the
Certificate Closing Date and which shall have been accomplished on or prior
to the Certificate Closing Date) the registration with, or the taking of
any other action in respect of, the Aeronautics Authority, the Securities
and Exchange Commission or any other authority or agency of the federal
government or of the State of Tennessee other than (i) the registration of
the issuance and sale of the Pass Through Certificates under the Securities
Act and (ii) compliance with the securities laws of each applicable state,
or (b) contravene any judgment or order applicable to or binding on Federal
or any law or governmental rule or regulation of the United States or of
the State of Tennessee.
6. There is no pending, or to my knowledge, threatened
action or proceeding before any court or administrative agency which
individually (or in the aggregate in the case of any group of related
lawsuits) is expected to have a material adverse effect on (A) the
financial condition of Federal, except for the matters described (a) under
"Legal Proceedings" in Federal's Annual Report on Form 10-K for the fiscal
year ended May 31, 1996 (as updated by Note 7 to the financial statements
included in Federal's Quarterly Reports on Form 10-Q for the fiscal
quarters ended August 31, 1996, November 30, 1996 and February 28, 1997)
and (b) in Federal's Current Reports on Form 8-K dated June 7, 1996, August
16, 1996 and March 4, 1997, as to which I can express no opinion at this
time concerning Federal's liability (if any) or the effect of any adverse
determination upon the business, condition (financial or otherwise) or
operations of Federal or (B) the ability of Federal to perform its
obligations under the Certificate Closing Date Documents.
7. Federal is a duly certificated "air carrier" within the
meaning of the Transportation Code, and a holder of a certificate under
Sections 41102(a) and 41103 of the Transportation Code, and an "air carrier
operating certificate" issued under Chapter 447 of the Transportation Code
for aircraft capable of carrying ten (10) or more individuals or 6,000
pounds or more of cargo, and each such certificate is in full force and
effect.
8. Federal's principal place of business and chief
executive office (as such term is defined in the Uniform Commercial Code in
effect in the State of Tennessee) are located at 2005 Corporate Avenue,
Memphis, Shelby County, Tennessee.
9. Federal is not, and is not directly or indirectly
controlled by or acting on behalf of any Person which is, an "investment
company" within the meaning of the Investment Company Act of 1940, as
amended.
The opinions expressed in paragraph 3 above as to the
enforceability of the Certificate Closing Date Documents to which Federal
is a party are based upon the assumption for purposes of such opinions and
without independent analysis that, notwithstanding the respective choice of
laws clauses in the Certificate Closing Date Documents, the governing law
with respect to each of the Certificate Closing Date Documents is identical
in all relevant respects to the law of the State of Tennessee. Insofar as
the foregoing opinion relates to the enforceability of any instrument, such
enforceability is subject to applicable bankruptcy, insolvency and other
similar laws affecting the enforcement of creditors' rights generally
(whether such enforceability is considered in a proceeding in equity or at
law). The enforceability of the remedies provided under the Lease may also
be limited by applicable laws which may affect the remedies provided
therein but which do not in my opinion affect the validity of the Lease or
make such remedies inadequate for the practical realization of the benefits
intended to be provided thereby.
I do not express any opinion as to matters governed by any
law other than the Federal laws of the United States of America, the
corporation law of the State of Delaware and the laws of the State of
Tennessee.
This opinion is delivered to you solely for your use in
connection with the transaction described herein, and may not be used for
any other purpose, and may not be relied upon by any other person, without
my prior written consent.
George W. Hearn
SCHEDULE A
Owner Trustee
State Street Bank and Trust Company
of Connecticut, National Association
Two International Place
4th Floor
Boston, Massachusetts 02110
Indenture Trustee, Pass Through Trustee & Subordination Agent
First Security Bank, National Association
79 South Main Street
Salt Lake City, Utah 84111
Owner Participant
PMCC Leasing Corporation
200 First Stamford Place
Stamford, Connecticut 06902
Underwriters
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
First Chicago Capital Markets, Inc.
Corporate Securities
One First National Plaza
Chicago, Illinois 60670
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
J.P. Morgan & Co.
60 Wall Street
New York, New York 10260
Liquidity Provider
Kredietbank N.V., New York Branch
125 West 55th Street
New York, New York 10019
EXHIBIT A(1)(a)(ii)
[Letterhead of Federal Express]
[Delivery Date]
To the Addressees Listed on Schedule A Attached
Re: Federal Express Corporation Trust No. N674FE
Ladies and Gentlemen:
I am the Vice President - Law of Federal Express
Corporation, a Delaware corporation ("Federal"), and am familiar with the
transactions contemplated by the Participation Agreement (Federal Express
Corporation Trust No. N674FE), dated as of May 1, 1997 (the "Participation
Agreement"), among Federal, as Lessee, PMCC Leasing Corporation, as Owner
Participant, State Street Bank and Trust Company of Connecticut, National
Association, not in its individual capacity, except as otherwise stated,
but solely as Owner Trustee, and First Security Bank, National Association,
not in its individual capacity, except as otherwise stated, but solely as
Indenture Trustee, Pass Through Trustee and Subordination Agent, relating
to the Aircraft. This opinion is being delivered pursuant to Section
4.02(d)(i) of the Participation Agreement. Capitalized terms not otherwise
defined herein have the meanings assigned thereto in the Participation
Agreement.
The Participation Agreement provides, among other things,
for the financing on the Delivery Date of a portion of the Owner Trustee's
payment of the Purchase Price of one Airbus A300F4-605R aircraft (the
"Aircraft"), using the proceeds from the public offering of the Pass
Through Certificates. Three Classes of Pass Through Certificates were
issued by three Pass Through Trusts formed to acquire, among other
securities, the Certificates bearing a particular interest rate and having
a particular Maturity that were issued under the Indenture, as supplemented
by the related Indenture and Security Agreement Supplement.
In connection with the opinions expressed below, I have
examined or caused to be examined by attorneys under my supervision,
executed counterparts of the Operative Agreements, the Pass Through
Agreement and each Series Supplement (the "Transaction Agreements"). We
have relied upon originals or copies, certified or otherwise identified to
our satisfaction, of such corporate records, documents and other
instruments as in our judgment are relevant to rendering the opinions
expressed below. As to any facts material to the opinions expressed below
(other than any thereof relating to Federal), we have relied upon the
representations and warranties made in the Transaction Agreements, the
accuracy of which we have not independently investigated or verified. In
such examination, we have assumed the genuineness of all signatures (other
than the signatures of Federal) and the authenticity of all documents
submitted to us as originals and the conformity with the originals of all
documents submitted to us as copies. We have also assumed that each of the
parties to each of the Transaction Agreements, other than Federal, has full
power, authority and legal right to enter into such Transaction Agreements
and that each such Transaction Agreement has been duly authorized, executed
and delivered by each of such parties.
Based on the foregoing, it is my opinion that:
1. Federal is a corporation duly incorporated, validly
existing and in good standing under the laws of the State of Delaware, is a
"citizen of the United States" within the meaning of Section 40102(a)(15)
of the Transportation Code, and has or had, on the date of execution
thereof, the corporate power and authority to carry on its business as
currently conducted and to enter into and perform its obligations under the
Transaction Agreements to which it is a party. Federal is duly qualified
to do business and is in good standing in the State of Tennessee and each
other state of the United States in which its operations or the nature of
its business requires Federal to so qualify, except where the failure to so
qualify would not have a material adverse impact on Federal or its
business.
2. Federal possesses all necessary certificates,
franchises, licenses, permits, rights and concessions and consents which
are material to the operation of the routes flown by it and the conduct of
its business and operations as currently conducted, and each such
certificate, franchise, license, permit, right and concession and consent
is in full force and effect.
3. Each of the Transaction Agreements to which Federal is a
party has or had, on the date of execution thereof, been duly authorized,
executed and delivered by Federal and each constitutes the legal, valid and
binding obligation of Federal enforceable against Federal in accordance
with its terms.
4. Neither the execution and delivery by Federal of the
Transaction Agreements to which Federal is a party, nor the consummation of
any of the transactions by Federal contemplated thereby, nor the
performance of the obligations thereunder by Federal, did at the time of
execution and delivery, or does presently (a) require any stockholder
approval or violate the certificate of incorporation or by-laws of Federal
or (b) conflict with or contravene the provisions of, or constitute a
default under, or result in the creation of any Lien (other than Liens
permitted under Section 6.01(a) of the Lease) upon the property of Federal
under any law, governmental rule or regulation, or the charter or bylaws of
Federal or any order, writ, injunction or decree of any court or
governmental authority against Federal or by which any of its properties
may be bound or any indenture, mortgage, contract or other agreement known
to me to which Federal is a party or by which it may be bound or, require
the approval or consent of any trustee or the holders of any indebtedness
or obligations of Federal.
5. Neither the execution and delivery by Federal of the
Transaction Agreements to which it is a party, nor the consummation of any
transactions by Federal contemplated thereby, nor the performance of the
obligations thereunder by Federal, did or does, as the case may be, (a)
require the consent or approval of, the giving of notice to, or (except as
described or contemplated in the Participation Agreement and the Lease, all
of which were or are required to be performed on or prior to the Delivery
Date and which were or shall have been accomplished on or prior to the
Delivery Date) the registration with, or the taking of any other action in
respect of, the Aeronautics Authority, the Securities and Exchange
Commission or any other authority or agency of the federal government or of
the State of Tennessee other than (i) the registration of the issuance and
sale of the Pass Through Certificates under the Securities Act, (ii)
compliance with the securities laws of each applicable state and (iii) the
filings and recordings referred to in paragraph 7 below, or (b) contravene
any judgment or order applicable to or binding on Federal or any law or
governmental rule or regulation of the United States or of the State of
Tennessee.
6. There is no pending, or to my knowledge, threatened
action or proceeding before any court or administrative agency which
individually (or in the aggregate in the case of any group of related
lawsuits) (i) is expected to have a material adverse effect on (A) the
financial condition of Federal, except for the matters described (a) under
"Legal Proceedings" in Federal's Annual Report on Form 10-K for the fiscal
year ended May 31, 1996 (as updated by Note 7 to the financial statements
included in Federal's Quarterly Reports on Form 10-Q for the fiscal
quarters ended August 31, 1996, November 30, 1996 and February 28, 1997)
and (b) in Federal's Current Reports on Form 8-K dated June 7, 1996, August
16, 1996 and March 4, 1997, as to which I can express no opinion at this
time concerning Federal's liability (if any) or the effect of any adverse
determination upon the business, condition (financial or otherwise) or
operations of Federal or (B) the ability of Federal to perform its
obligations under the Transaction Agreements, or (ii) involves the
Aircraft.
7. Except for the registration in the Owner Trustee's name
of the Aircraft pursuant to the Transportation Code, and except for the
filing and, where appropriate, recording, pursuant to the Transportation
Code of (A) AVSA's FAA Bill of Sale, (B) the Trust Agreement, (C) the
Lease (with the Lease Supplement covering the Aircraft, the Indenture and
the Indenture and Security Agreement Supplement covering the Aircraft
attached as exhibits) and (D) the Indenture (with the Indenture and
Security Agreement Supplement covering the Aircraft attached as an
exhibit), no further action, including any filing or recording of any
document is necessary or advisable in order to establish and perfect the
Owner Trustee's title to and interest in the Aircraft as against Federal
and any third parties, or to perfect the first mortgage lien on the
Aircraft in favor of the Indenture Trustee in each case with respect to
such portion of the Aircraft as is covered by the recording system
established by the Transportation Code.
8. Federal is a duly certificated "air carrier" within the
meaning of the Transportation Code, and a holder of a certificate under
Sections 41102(a) and 41103 of the Transportation Code, and an "air carrier
operating certificate" issued under Chapter 447 of the Transportation Code
for aircraft capable of carrying ten (10) or more individuals or 6,000
pounds or more of cargo, and each such certificate is in full force and
effect.
9. On the date hereof the Owner Trustee received good and
valid title to the Aircraft free and clear of all Liens on file with the
FAA, except for Liens permitted under Section 6.01(a) of the Lease.
10. Federal's principal place of business and chief
executive office (as such term is defined in the Uniform Commercial Code in
effect in the State of Tennessee) are located at 2005 Corporate Avenue,
Memphis, Shelby County, Tennessee.
11. Federal is not, and is not directly or indirectly
controlled by or acting on behalf of any Person which is, an "investment
company" within the meaning of the Investment Company Act of 1940, as
amended.
The opinions expressed in paragraph 3 above as to the
enforceability of the Transaction Agreements to which Federal is a party
are based upon the assumption for purposes of such opinions and without
independent analysis that, notwithstanding the respective choice of laws
clauses in the Transaction Agreements, the governing law with respect to
each of the Transaction Agreements is identical in all relevant respects to
the law of the State of Tennessee. Insofar as the foregoing opinion
relates to the enforceability of any instrument, such enforceability is
subject to applicable bankruptcy, insolvency and other similar laws
affecting the enforcement of creditors' rights generally (whether such
enforceability is considered in a proceeding in equity or at law). The
enforceability of the remedies provided under the Lease may also be limited
by applicable laws which may affect the remedies provided therein but which
do not in my opinion affect the validity of the Lease or make such remedies
inadequate for the practical realization of the benefits intended to be
provided thereby.
I do not express any opinion as to matters governed by any
law other than the Federal laws of the United States of America, the
corporation law of the State of Delaware and the laws of the State of
Tennessee.
As to the matters referred to in paragraphs 5, 7 and 9, I
have relied on the opinion of Daugherty, Fowler & Peregrin of even date
herewith, to the extent such matters are addressed in such counsel's
opinion and subject to the assumptions and qualifications expressed
therein.
This opinion is delivered to you solely for your use in
connection with the transaction described herein, and may not be used for
any other purpose, and may not be relied upon by any other person, without
my prior written consent.
George W. Hearn
SCHEDULE A
Owner Trustee
State Street Bank and Trust Company
of Connecticut, National Association
Two International Place
4th Floor
Boston, Massachusetts 02110
Indenture Trustee, Pass Through Trustee & Subordination Agent
First Security Bank, National Association
79 South Main Street
Salt Lake City, Utah 84111
Owner Participant
PMCC Leasing Corporation
200 First Stamford Place
Stamford, Connecticut 06902
Underwriters
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
First Chicago Capital Markets, Inc.
Corporate Securities
One First National Plaza
Chicago, Illinois 60670
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
J.P. Morgan & Co.
60 Wall Street
New York, New York 10260
Liquidity Provider
Kredietbank N.V., New York Branch
125 West 55th Street
New York, New York 10019
EXHIBIT A(1)(b)(i)
[Letterhead of Davis Polk & Wardwell]
[Certificate Closing Date]
To Each of the Parties named on Schedule A Hereto
Re: Federal Express Corporation Trust No. N674FE
Ladies and Gentlemen:
We have acted as special counsel for Federal Express
Corporation, a Delaware corporation ("Federal Express"), in connection with
the transactions contemplated by the Participation Agreement (Federal Express
Corporation Trust No. N674FE), dated as of May 1, 1997 (the "Participation
Agreement"), among Federal Express, as Lessee, PMCC Leasing Corporation, as
Owner Participant, State Street Bank and Trust Company of Connecticut,
National Association, not in its individual capacity, except as otherwise
stated, but solely as Owner Trustee, and First Security Bank, National
Association, not in its individual capacity, except as otherwise stated, but
solely as Indenture Trustee, Pass Through Trustee and Subordination Agent,
relating to the Aircraft. This opinion is being delivered pursuant to Section
4.01(k)(v) of the Participation Agreement. Capitalized terms not otherwise
defined herein have the meanings assigned thereto in the Participation
Agreement.
The Participation Agreement provides, among other things, for
the financing on the Delivery Date of a portion of the Owner Trustee's payment
of the Purchase Price of one Airbus A300F4-605R Aircraft using the proceeds
from the public offering of the Pass Through Certificates. On the Certificate
Closing Date, three Classes of Pass Through Certificates will be issued by
separate Pass Through Trusts, each formed to acquire, among other securities,
the Certificates bearing a particular interest rate and having a particular
Maturity that will be issued under the Indenture.
In connection with the opinions expressed below, we have
examined executed counterparts of the Operative Agreements, the Pass Through
Certificates, the Pass Through Agreement and each Series Supplement (the
"Certificate Closing Date Documents") and the forms of the Operative
Agreements to be delivered on the Delivery Date. We have also examined
originals, or copies certified to our satisfaction, of such other agreements,
documents, certificates and statements of governmental officials and corporate
officers as we have deemed necessary or advisable as a basis for such
opinions. In such examination, we have assumed the genuineness of all
signatures and the authenticity of all documents submitted to us as originals
and the conformity with the originals of all documents submitted to us as
copies.
As to any facts material to our opinions expressed below, we
have, with your consent, relied on the representations and warranties made in
or pursuant to the Participation Agreement and the other documents referred to
therein, the accuracy of which we have not independently verified. In
addition, we have, when relevant facts were not independently established by
us, relied, to the extent we deemed such reliance proper, upon certificates of
public officials and certificates, telegrams and other written or telephoned
statements of officers of the parties referred to herein.
Based on the foregoing, it is our opinion that:
1. Assuming (i) the due authorization, execution and
delivery of the Certificate Closing Date Documents by each of the parties
to each such document (other than Federal Express), (ii) each such party
has full power and legal right to enter into and perform its respective
obligations under the Certificate Closing Date Documents, (iii) that the
execution, delivery and performance of each of the Certificate Closing Date
Documents by each of the parties thereto will not violate the respective
parties' constituent documents, (iv) the due authorization, execution,
issuance and delivery by the Owner Trustee, and the due authentication by
the Indenture Trustee, of the Certificates to be issued under the Indenture
in accordance with the terms of the Indenture, (v) the due authorization,
execution, issuance, delivery and authentication by the Pass Through
Trustee of the Pass Through Certificates to be issued under the Pass
Through Agreement and the Series Supplement relating to such Pass Through
Certificates, in each case in accordance with the terms of the Pass Through
Agreement and such Series Supplement, and (vi) that the form of each
Certificate Closing Date Document is in compliance with all applicable laws
and governmental rules and regulations (other than the laws of the United
States and the State of New York), then: (A) to the extent governed by New
York law, each Certificate Closing Date Document in form constitutes a
legal, valid and binding agreement of each party thereto enforceable
against each such party in accordance with its terms; (B) the Indenture
creates, for the benefit of the Holders, the security interest in the Trust
Indenture Estate that it purports to create, except that no opinion is
given with respect to perfection of such security interest on the date
hereof; (C) the Certificates, when issued to and acquired by the Pass
Through Trustee, will be legal, valid and binding obligations of the Owner
Trustee enforceable against the Owner Trustee in accordance with their
terms and the terms of the Indenture and will be entitled to the benefits
of the Indenture, including the benefit of the security interest created
thereby, except that no opinion is given with respect to perfection of such
security interest on the date hereof; (D) the Pass Through Certificates,
when issued to and acquired by the Underwriters in accordance with the
Underwriting Agreement, will be legal, valid and binding obligations of the
Pass Through Trustee enforceable against the Pass Through Trustee in
accordance with their terms and will be entitled to the benefits of the
Pass Through Agreement and the Series Supplement relating thereto; and (E)
the beneficial interest of the Owner Participant under the Trust Agreement
in and to the properties which are part of the Trust Indenture Estate is
subject, to the extent provided in the Indenture, to the Lien of the
Indenture in favor of the Holders.
2. (a) Each of the Certificate Closing Date Documents to
which Federal Express is a party has been duly authorized, executed and
delivered by Federal Express. Each of the Operative Agreements to which
Federal Express is to be a party and which are to be delivered on the
Delivery Date has been authorized by Federal Express.
(b) The execution, delivery and performance by Federal
Express of each of the Certificate Closing Date Documents to which Federal
Express is a party do not, or did not on the date of execution thereof,
violate, and fully comply, or did fully comply on the date of execution
thereof, with, any laws and governmental rules and regulations of the State
of New York that may be applicable to Federal Express. The opinion set
forth in this paragraph 2(b) is rendered without regard to the taking of
any action or the conduct of any other business by Federal Express in the
State of New York other than the transactions contemplated by the
Certificate Closing Date Documents.
3. The execution, delivery and performance of the
Certificate Closing Date Documents (other than the Certificates) by the
Owner Trustee in its individual or trust capacity, as the case may be, and
the issuance, execution, delivery and performance of the Certificates by
the Owner Trustee in its trust capacity do not violate, and fully comply
with, any laws and governmental rules and regulations of the State of New
York that may be applicable to the Owner Trustee in its individual or trust
capacity, as the case may be. The opinion set forth in this paragraph 3 is
rendered without regard to the effect, if any, on such issuance (in the
case of the Certificates), execution, delivery or performance, of the
taking of any action, the conduct of any business or the exercise of any
other powers by State Street Bank and Trust Company of Connecticut,
National Association in its individual or trust capacity in the State of
New York not related to the transactions contemplated by the Certificate
Closing Date Documents. We have assumed that State Street Bank and Trust
Company of Connecticut, National Association has made the filings necessary
to comply with Section 131.3 of the Banking Law of the State of New York,
however we express no opinion as to whether State Street Bank and Trust
Company of Connecticut, National Association is required to comply with
said Section 131.3.
4. It is not necessary, in connection with the creation of
the beneficial interest of the Owner Participant in the Trust Indenture Estate
under the circumstances contemplated by the Participation Agreement to
register such beneficial interest under the Securities Act of 1933, as
amended, or to qualify the Trust Agreement under the Trust Indenture Act of
1939, as amended.
The foregoing opinions are subject to the following
qualifications:
(a) We have relied, with your consent, without independent
investigation and verification and subject to the assumptions and
qualifications contained therein, upon the opinion of George W.
Hearn, Vice President - Law of Federal Express to be delivered to
you and dated the date hereof, for purposes of the matters covered
thereby.
(b) We are qualified to practice law in the State of New York,
and we do not purport to be experts on, or to express any opinion
herein concerning, any laws other than the laws of the State of New
York, the laws of the United States and the General Corporation Law
of the State of Delaware.
(c) The opinion contained in paragraph 1(A) above as to
enforceability is subject to (i) applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement
of creditors' rights generally and (ii) general principles of equity
which may affect the remedies provided in the agreements referred to
in said opinions, which laws and principles, however, do not in our
opinion make the remedies provided in said agreements inadequate for
the practical realization of the benefits of the security intended to
be provided thereby.
(d) This opinion is rendered solely to you at Federal
Express's request in connection with the above matter. This
opinion may not be relied upon by you for any other purpose or
relied upon by any other Person without our prior written consent.
Very truly yours,
Davis Polk & Wardwell
SCHEDULE A
Lessee
Federal Express Corporation
2007 Corporate Avenue
Memphis, Tennessee 38132
Owner Trustee
State Street Bank and Trust Company
of Connecticut, National Association
Two International Place
4th Floor
Boston, Massachusetts 02110
Indenture Trustee, Pass Through Trustee & Subordination Agent
First Security Bank, National Association
79 South Main Street
Salt Lake City, Utah 84111
Owner Participant
PMCC Leasing Corporation
200 First Stamford Place
Stamford, Connecticut 06902
Underwriters
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
First Chicago Capital Markets, Inc.
Corporate Securities
One First National Plaza
Chicago, Illinois 60670
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
J.P. Morgan & Co.
60 Wall Street
New York, New York 10260
Liquidity Provider
Kredietbank N.V., New York Branch
125 West 55th Street
New York, New York 10019
EXHIBIT A(1)(b)(ii)
[Letterhead of Davis Polk & Wardwell]
[Delivery Date]
To Each of the Parties named on Schedule A Hereto
Re: Federal Express Corporation Trust No. N674FE
Ladies and Gentlemen:
We have acted as special counsel for Federal Express
Corporation, a Delaware corporation ("Federal Express"), in connection with
the transactions contemplated by the Participation Agreement (Federal Express
Corporation Trust No. N674FE), dated as of May 1, 1997 (the "Participation
Agreement"), among Federal Express, as Lessee, PMCC Leasing Corporation, as
Owner Participant, State Street Bank and Trust Company of Connecticut,
National Association, not in its individual capacity but solely as Owner
Trustee, and First Security Bank, National Association, not in its individual
capacity, except as otherwise stated, but solely as Indenture Trustee, Pass
Through Trustee and Subordination Agent, relating to the Aircraft. This
opinion is being delivered pursuant to Section 4.02(d)(ii) of the
Participation Agreement. Capitalized terms not otherwise defined herein have
the meanings assigned thereto in the Participation Agreement.
The Participation Agreement provides, among other things, for
the financing on the Delivery Date of the Owner Trustee's payment of a portion
of the Purchase Price of one Airbus A300F4-605R Aircraft (the "Aircraft") using
the proceeds from the public offering of the Pass Through Certificates. On the
Certificate Closing Date, three Classes of Pass Through Certificates were
issued by separate Pass Through Trusts, each formed to acquire, among other
securities, the Certificates bearing a particular interest rate and having a
particular Maturity issued under the Indenture. The Aircraft is to be leased
to Federal Express by the Owner Trustee pursuant to the Lease and subjected to
the Lien of the Indenture, and is to be delivered by the Owner Trustee to the
Lessee on this date, and in connection with the delivery of the Aircraft, the
Owner Trustee and Federal Express will execute and deliver the Lease
Supplement, and the Owner Trustee will execute and deliver the Indenture and
Security Agreement Supplement.
In connection with the opinions expressed below, we have
examined executed counterparts of the Operative Agreements, the Pass Through
Certificates, the Pass Through Agreement and each Series Supplement (the
"Transaction Agreements"). We have also examined originals, or copies
certified to our satisfaction, of such other agreements, documents,
certificates and statements of governmental officials and corporate officers
as we have deemed necessary or advisable as a basis for such opinions. In such
examination, we have assumed the genuineness of all signatures and the
authenticity of all documents submitted to us as originals and the conformity
with the originals of all documents submitted to us as copies.
As to any facts material to our opinions expressed below, we
have, with your consent, relied on the representations and warranties made in
or pursuant to the Participation Agreement and the other documents referred to
therein, the accuracy of which we have not independently verified. In
addition, we have, when relevant facts were not independently established by
us, relied, to the extent we deemed such reliance proper, upon certificates of
public officials and certificates, telegrams and other written or telephoned
statements of officers of the parties referred to herein.
Based on the foregoing, it is our opinion that:
1. With respect to that portion, if any, of the Aircraft
and the other property included in the Lessor's Estate as may not be
covered by the recording system established by the FAA pursuant to Section
44107 of the Transportation Code, no filing or recording of any document or
other action was or is necessary in order to establish the Owner Trustee's
title thereto and interest therein as against Federal Express and any third
parties.
2. Subject to execution and delivery of the Lease
Supplement and the Indenture and Security Agreement Supplement for the
Aircraft and to the registration of the Aircraft with the FAA in the name
of the Owner Trustee, the Lease, as supplemented, will create a valid
leasehold interest in the Aircraft, the entitlement thereof to the benefits
of recordation under the Transportation Code being subject to the due and
timely filing and, where appropriate, recording of (A) AVSA's FAA Bill of
Sale, (B) the Trust Agreement, (C) the Lease (with the Lease Supplement
covering the Aircraft, the Indenture and the Indenture and Security
Agreement Supplement covering the Aircraft attached as exhibits) and (D)
the Indenture (with the Indenture and Security Agreement Supplement
covering the Aircraft attached as an exhibit), pursuant to the
Transportation Code, and assuming that at the time of such filing no other
documents relating to the Aircraft have been filed pursuant to the
Transportation Code.
3. Assuming (i) the due authorization, execution and
delivery of the Transaction Agreements by each of the parties to each such
document (other than Federal Express), (ii) each such party has full power
and legal right to enter into and perform its respective obligations under
the Transaction Agreements, (iii) that the execution, delivery and
performance of each of the Transaction Agreements by each of the parties
thereto will not violate the respective parties' constituent documents,
(iv) the due authorization, execution, issuance and delivery by the Owner
Trustee, and the due authentication by the Indenture Trustee, of the
Certificates issued under the Indenture in accordance with the terms of the
Indenture, (v) the due authorization, execution, issuance, delivery and
authentication by the Pass Through Trustee of the Pass Through Certificates
issued under the Pass Through Agreement and the Series Supplement relating
to such Pass Through Certificates, in each case in accordance with the
terms of the Pass Through Agreement and such Series Supplement, and (vi)
that the form of each Transaction Agreement is in compliance with all
applicable laws and governmental rules and regulations (other than the laws
of the United States and the State of New York), then: (A) to the extent
governed by New York law, each Transaction Agreement in form constitutes a
legal, valid and binding agreement of each party thereto enforceable
against each such party in accordance with its terms; (B) the Indenture
creates, for the benefit of the Holders, the security interest in the Trust
Indenture Estate that it purports to create; (C) the Certificates are
legal, valid and binding obligations of the Owner Trustee enforceable
against the Owner Trustee in accordance with their terms and the terms of
the Indenture and are entitled to the benefits of the Indenture, including
the benefit of the security interest created thereby; and (D) the
beneficial interest of the Owner Participant under the Trust Agreement in
and to the properties which are part of the Trust Indenture Estate is
subject, to the extent provided in the Indenture, as supplemented by the
Indenture and Security Agreement Supplement, to the Lien of the Indenture
in favor of the Holders. The opinions set forth in this paragraph 3 are
subject to the due filing and recording, where appropriate, with the FAA of
the documents referred to in paragraph 2 above.
4. (a) Each of the Transaction Agreements to which Federal
Express is a party has been duly authorized, executed and delivered by Federal
Express.
(b) The execution, delivery and performance by Federal Express
of each of the Transaction Agreements to which Federal Express is a party do
not, or did not on the date of execution thereof, violate, and fully comply,
or did fully comply on the date of execution thereof, with, any laws and
governmental rules and regulations of the State of New York that may be
applicable to Federal Express. The opinion set forth in this paragraph 4(b)
is rendered without regard to the taking of any action or the conduct of any
other business by Federal Express in the State of New York other than the
transactions contemplated by the Transaction Agreements.
5. The execution, delivery and performance of the
Transaction Agreements (other than the Certificates) by the Owner Trustee
in its individual or trust capacity, as the case may be, and the issuance,
execution, delivery and performance of the Certificates by the Owner
Trustee in its trust capacity do not violate, and fully comply with, any
laws and governmental rules and regulations of the State of New York that
may be applicable to the Owner Trustee in its individual or trust capacity,
as the case may be. The opinion set forth in this paragraph 5 is rendered
without regard to the effect, if any, on such issuance (in the case of the
Certificates), execution, delivery or performance, of the taking of any
action, the conduct of any business or the exercise of any other powers by
State Street Bank and Trust Company of Connecticut, National Association in
its individual or trust capacity in the State of New York not related to
the transactions contemplated by the Transaction Agreements. We have
assumed that State Street Bank and Trust Company of Connecticut, National
Association has made the filings necessary to comply with Section 131.3 of
the Banking Law of the State of New York, however we express no opinion as
to whether State Street Bank and Trust Company of Connecticut, National
Association is required to comply with said Section 131.3.
6. All the properties which are part of the Trust Indenture
Estate (including all right, title and interest of the Owner Trustee pledged
and mortgaged by it pursuant to the Indenture in and to the Aircraft and the
Lease) have been pledged and mortgaged with the Indenture Trustee as part of
the Trust Indenture Estate (subject to the due filing and, where appropriate,
recording of those documents referred to in paragraph 2 above and the
financing statement referred to in Section 4.02(f) of the Participation
Agreement), and the beneficial interest of the Owner Participant under the
Trust Agreement in and to such properties are subject, to the extent provided
in the Indenture, to the Lien of the Indenture in favor of the Holders of the
Certificates issued and to be issued under the Indenture.
7. The Indenture and Security Agreement Supplement, pursuant
to the Granting Clause of the Indenture, creates, as security for the
Certificates duly issued and to be issued under the Indenture, the first
priority security interest in the Aircraft it purports to create, the
perfection and rank thereof being subject to the registration with the FAA of
the Aircraft in the name of the Owner Trustee and the due filing and, where
appropriate, recording in accordance with the Transportation Code of the
documents referred to in paragraph 2 above. We express no opinion with
respect to the status of any security interest in any portion of the Aircraft
which does not constitute an "aircraft" or "aircraft engine", as defined in
paragraphs (6) and (7) of Section 40102(a) of the Transportation Code.
8. Except for (i) the filings and recordings referred to in
paragraph 2 above, (ii) the registration of the issuance and sale of the
Pass Through Certificates under the Securities Act and (iii) compliance
with the securities laws of each applicable state, neither the execution
and delivery by Federal Express of the Participation Agreement or any other
Operative Agreement to which it is a party, nor the consummation of any of
the transactions by Federal Express contemplated thereby, requires the
consent or approval of, the giving of notice to, or the registration with,
or the taking of any other action in respect of, the Department of
Transportation, the FAA, the Securities and Exchange Commission or any
other Federal or New York State governmental authority.
9. It is not necessary, in connection with the creation of
the beneficial interest of the Owner Participant in the Trust Indenture Estate
under the circumstances contemplated by the Participation Agreement to
register such beneficial interest under the Securities Act of 1933, as
amended, or to qualify the Trust Agreement under the Trust Indenture Act of
1939, as amended.
10. The provisions of Section 1110 of the United States
Bankruptcy Code will apply to the Aircraft for the benefit of the Lessor,
as lessor under and by reason of the Lease. The Lease, including the
rights under Section 1110 of the United States Bankruptcy Code, has been
assigned to the Indenture Trustee pursuant to the Indenture as part of the
collateral for the Certificates and, as assignee, the Indenture Trustee has
the benefit of Section 1110.
The foregoing opinions are subject to the following
qualifications:
(a) We have relied, with your consent, without independent
investigation and verification and subject to the assumptions and
qualifications contained therein, upon the opinions of Daugherty,
Fowler & Peregrin and George W. Hearn, Vice President - Law of
Federal Express to be delivered to you and dated the date hereof, for
purposes of the matters covered thereby.
(b) We are qualified to practice law in the State of New York,
and we do not purport to be experts on, or to express any opinion
herein concerning, any laws other than the laws of the State of New
York, the laws of the United States and the General Corporation Law
of the State of Delaware. We express no opinion as to any matters
involving aviation law.
(c) The opinion contained in paragraph 3(A) above as to
enforceability is subject to (i) applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement
of creditors' rights generally and (ii) general principles of equity
which may affect the remedies provided in the agreements referred to
in said opinions, which laws and principles, however, do not in our
opinion make the remedies provided in said agreements inadequate for
the practical realization of the benefits of the security intended to
be provided thereby.
(d) This opinion is rendered solely to you at Federal
Express's request in connection with the above matter. This
opinion may not be relied upon by you for any other purpose or
relied upon by any other Person without our prior written consent.
Very truly yours,
Davis Polk & Wardwell
SCHEDULE A
Lessee
Federal Express Corporation
2007 Corporate Avenue
Memphis, Tennessee 38132
Owner Trustee
State Street Bank and Trust Company
of Connecticut, National Association
Two International Place
4th Floor
Boston, Massachusetts 02110
Indenture Trustee, Pass Through Trustee & Subordination Agent
First Security Bank, National Association
79 South Main Street
Salt Lake City, Utah 84111
Owner Participant
PMCC Leasing Corporation
200 First Stamford Place
Stamford, Connecticut 06902
Underwriters
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
First Chicago Capital Markets, Inc.
Corporate Securities
One First National Plaza
Chicago, Illinois 60670
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
J.P. Morgan & Co.
60 Wall Street
New York, New York 10260
Liquidity Provider
Kredietbank N.V., New York Branch
125 West 55th Street
New York, New York 10019
EXHIBIT A(2)(a)
[Letterhead of Simpson Thacher & Bartlett]
[Certificate Closing Date]
To Each of the Parties named on Schedule A Hereto
Re: Federal Express Corporation Trust No. N674FE
Ladies and Gentlemen:
We have acted as special New York counsel for (i) PMCC Leasing
Corporation ("PMCC") in connection with the transactions contemplated by the
Participation Agreement (Federal Express Corporation Trust No. N674FE), dated
as of May 1, 1997 (the "Participation Agreement"), among Federal Express
Corporation, as lessee, State Street Bank and Trust Company of Connecticut,
National Association, not in its individual capacity, except as otherwise
stated, but solely as owner trustee, PMCC, as owner participant, and First
Security Bank, National Association, not in its individual capacity, except as
otherwise stated, but solely as indenture trustee, pass through trustee and
subordination agent, and (ii) Philip Morris Capital Corporation ("Philip
Morris") in connection with the transactions contemplated by the Owner
Participant Guaranty (the "Guaranty"), dated as of May 1, 1997 from Philip
Morris to each of the beneficiaries named therein. This opinion is being
furnished to you pursuant to Section 4.01(k)(ii) of the Participation
Agreement. Capitalized terms used herein and not otherwise defined herein
shall have the meanings ascribed to them in the Participation Agreement.
We have examined executed counterparts of the Participation
Agreement, the Trust Agreement, the Tax Indemnity Agreement, the Ancillary
Agreement I and the Ancillary Agreement II (collectively, the "Owner
Participant Documents") and the Guaranty. We have made such other and further
investigations as we have deemed necessary or appropriate for purposes of this
opinion. In our examination we have assumed, with your permission, and
without independent investigation or inquiry, the genuineness of all
signatures, the authenticity of all documents submitted to us as originals and
the conformity to original documents of all documents submitted to us as
certified or photocopies and the authenticity of the originals of such latter
documents.
With your permission, we have further assumed that (i) the
Owner Participant Documents and the Guaranty have been duly authorized,
executed and delivered by each of the parties thereto, (ii) the respective
parties thereto have the power and authority to execute, deliver and
perform the Owner Participant Documents and the Guaranty, (iii) the
execution, delivery and performance of the Owner Participant Documents and
the Guaranty by the parties thereto do not and will not violate the
certificate of incorporation, by-laws or other organizations documents of
any such party or any bond, debenture, note, mortgage, indenture, lease or
other agreement or instrument to which any such party is a party or by
which any such party is bound and does and will fully comply with all laws
an regulations applicable to each such party and (iv) the Owner Participant
Documents constitute valid, legal and binding obligations of the parties
thereto (other than PMCC), enforceable against such parties (other than
PMCC) in accordance with their respective terms.
Based upon the foregoing, we are of the opinion that:
1. The Participation Agreement and the Tax Indemnity Agreement
constitute valid and legally binding obligations of PMCC enforceable against
PMCC in accordance with their respective terms.
2. The Guaranty constitutes a valid and legally binding obligation
of Philip Morris enforceable against Philip Morris in accordance with its
terms.
3. The execution, delivery and performance by PMCC of the Owner
Participant Documents will not result in any violation of any Federal or New
York statute or any order, rule or regulation issued pursuant to any New York
or Federal statute by any New York or Federal Court or governmental agency or
body having jurisdiction over PMCC.
4. The execution, delivery and performance by Philip Morris of
the Guaranty will not result in any violation of any Federal or New York
statute or any order, rule or regulation issued pursuant to any New York or
Federal statute by any New York or Federal Court or governmental agency or
body having jurisdiction over Philip Morris.
5. No consent, approval, authorization, order, registration,
filing or qualification under any Federal or New York statute is required to
be obtained by PMCC for the execution, delivery and performance by PMCC of the
Owner Participant Documents.
6. No consent, approval, authorization, order, registration,
filing or qualification under any Federal or New York statute is required to
be obtained by Philip Morris for the execution, delivery and performance by
Philip Morris of the Guaranty.
Our opinions in paragraphs 1 and 2 are subject to the
effects of bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws relating to or affecting creditors'
rights generally, general equitable principles (whether considered in a
proceeding in equity or at law) and an implied covenant of good faith and
fair dealing.
We are members of the Bar of the State of New York and express
no opinion herein concerning any law other than the laws of the State of New
York.
This opinion is rendered to you in connection with the
above-described transaction. This opinion may not be relied by you for any
other purpose, or relied upon by or furnished to any other person, firm or
corporation without our prior written consent, except that the Owner
Participant may furnish a copy of this opinion to a potential transferee or
participant of the interest of such entity or otherwise as required by a
governmental authority.
Very truly yours,
Simpson Thacher & Bartlett
SCHEDULE A
Lessee
Federal Express Corporation
2007 Corporate Avenue
Memphis, Tennessee 38132
Owner Trustee
State Street Bank and Trust Company
of Connecticut, National Association
Two International Place
4th Floor
Boston, Massachusetts 02110
Indenture Trustee, Pass Through Trustee & Subordination Agent
First Security Bank, National Association
79 South Main Street
Salt Lake City, Utah 84111
Owner Participant
PMCC Leasing Corporation
200 First Stamford Place
Stamford, Connecticut 06902
Underwriters
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
First Chicago Capital Markets, Inc.
Corporate Securities
One First National Plaza
Chicago, Illinois 60670
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
J.P. Morgan & Co.
60 Wall Street
New York, New York 10260
Liquidity Provider
Kredietbank N.V., New York Branch
125 West 55th Street
New York, New York 10019
EXHIBIT A(2)(b)
[Letterhead of Philip Morris Capital Corporation]
[Certificate Closing Date]
To Each of the Parties named on Schedule A Hereto
Re: Federal Express Corporation Trust No. N674FE
Ladies and Gentlemen:
In my capacity as Assistant General Counsel and Assistant
Secretary of Philip Morris Capital Corporation, a Delaware corporation, I have
supervised corporate proceedings of (i) PMCC Leasing Corporation, a Delaware
corporation (the "Owner Participant"), in connection with the Owner
Participant's participation in the transactions contemplated by that certain
Participation Agreement (Federal Express Corporation Trust No. N674FE), dated
as of May 1, 1997 (the "Participation Agreement"), among the Owner
Participant, Federal Express Corporation, as Lessee; State Street Bank and
Trust Company of Connecticut, National Association, except as otherwise
stated, not in its individual capacity but solely as Owner Trustee; and First
Security Bank, National Association not in its individual capacity, except as
otherwise stated, but solely as Indenture Trustee, Pass Through Trustee and
Subordination Agent, and (ii) Philip Morris Capital Corporation, a Delaware
corporation (the "Guarantor"), in connection with the transactions
contemplated by the Owner Participant Guaranty (the "Guaranty"), dated as of
May 1, 1997 from Philip Morris to each of the beneficiaries named therein.
This opinion is delivered pursuant to Section 4.01(k)(ii) of the Participation
Agreement. Capitalized terms used herein but not otherwise defined herein,
shall have the respective meanings set forth in the Participation Agreement.
In connection with this opinion, I have examined originals,
or copies certified or otherwise identified to my satisfaction of the
Participation Agreement, the Trust Agreement, the Tax Indemnity Agreement,
the Ancillary Agreement I and the Ancillary Agreement II (each such
document to be hereafter referred to individually as an "Owner Participant
Document" and collectively as the "Owner Participant Documents") and the
Guaranty. I have also examined such corporate documents, records and
instruments of the Owner Participant and the Guarantor as in my judgement
are necessary or appropriate to enable me to render the opinions expressed
below. In rendering such opinions, I have relied upon the representations
and warranties contained in or made pursuant to the Owner Participant
Documents and the Guaranty and have assumed the due authorization,
execution and delivery of all documents and instruments by all parties
thereto other than the Owner Participant.
Based on the foregoing and subject to the qualifications and
matters of reliance set forth herein, I am of the opinion that:
1. The Owner Participant is a corporation duly organized,
validly existing and in good standing under the laws of the State of
Delaware, has full corporate power, authority and legal right to
carry on its business as now conducted, and is duly authorized and
empowered to execute and deliver the Owner Participant Documents and
to fulfill and comply with the terms, conditions and other provisions
thereof.
2. The Guarantor is a corporation duly organized, validly
existing and in good standing under the laws of the State of
Delaware, has full corporate power, authority and legal right to
carry on its business as now conducted, and is duly authorized and
empowered to execute and deliver the Guaranty and to fulfill and
comply with the terms, conditions and other provisions thereof.
3. The Owner Participant Documents have been duly authorized
by all necessary corporate action on the part of the Owner
Participant, and have been duly executed and delivered by the Owner
Participant.
4. The Guaranty has been duly authorized by all necessary
corporate action on the part of the Guarantor, and has been duly
executed and delivered by the Guarantor.
5. No filing with, notice to, or authorization or approval
from any governmental or public body or authority is required under
the laws of the State of New York, the laws of the United States of
America, or the General Corporation Law of the State of Delaware in
connection with the execution, delivery and performance by the Owner
Participant of the Owner Participant Documents.
6. No filing with, notice to, or authorization or approval
from any governmental or public body or authority is required under
the laws of the State of New York, the laws of the United States of
America, or the General Corporation Law of the State of Delaware in
connection with the execution, delivery and performance by the
Guarantor of the Guaranty.
7. There are no actions, suits or proceedings (whether or not
purportedly on behalf of the Owner Participant) pending or, to my
knowledge, threatened against or affecting the Owner Participant or
any property rights of the Owner Participant at law or in equity or
before any commission or other administrative agency which, either
individually or in the aggregate, could materially and adversely
affect the condition, financial or otherwise, of the Owner
Participant or its ability to perform its obligations under the Owner
Participant Documents or which would affect the legality, validity or
enforceability of such Owner Participant Documents.
8. There are no actions, suits or proceedings (whether or
not purportedly on behalf of the Guarantor) pending or, to my
knowledge, threatened against or affecting the Guarantor or any
property rights of the Guarantor at law or in equity or before any
commission or other administrative agency which, either
individually or in the aggregate, could materially and adversely
affect the condition, financial or otherwise, of the Guarantor or
its ability to perform its obligations under the Guaranty or which
would affect the legality, validity or enforceability of such
Guaranty.
9. Neither the execution and delivery of the Owner Participant
Documents, the consummation of the transactions therein contemplated
nor the fulfillment of or compliance with the terms, conditions and
other provisions thereof will conflict with, or result in any breach
of, any of the terms, conditions or provisions of (i) any law or
regulation binding upon the Owner Participant, (ii) any order,
injunction or decree of any court or governmental instrumentality
binding upon the Owner Participant, (iii) the Certificate of
Incorporation or Bylaws of the Owner Participant, or (iv) any bond,
debenture, note, mortgage indenture or other agreement or instrument
to which the Owner Participant is now a party or by which the
property of the Owner Participant may be bound.
10. Neither the execution and delivery of the Guaranty, the
consummation of the transactions therein contemplated nor the
fulfillment of or compliance with the terms, conditions and other
provisions thereof will conflict with, or result in any breach of,
any of the terms, conditions or provisions of (i) any law or
regulation binding upon the Guarantor, (ii) any order, injunction or
decree of any court or governmental instrumentality binding upon the
Guarantor, (iii) the Certificate of Incorporation or Bylaws of the
Guarantor, or (iv) any bond, debenture, note, mortgage indenture or
other agreement or instrument to which the Guarantor is now a party
or by which the property of the Guarantor may be bound.
I am a member of the bar of the State of New York, and I do
not purport to be conversant with, or to express any opinion herein
concerning, the laws of any jurisdiction other than those of the State of
New York and the United States of America and the General Corporation Law
of the State of Delaware. In addition, I express no opinion concerning the
laws of the State of New York, the United States of America or any other
jurisdiction applicable to the offering or sale of securities. Further, I
have made no investigation and express no opinion, as to any aviation law
or other laws, statutes, rules or regulations applicable due to the
particular nature of the equipment subject to the Lease.
This opinion is solely for the benefit of the addresses hereof
and their respective successors and assigns for use in connection with the
transactions contemplated by the Owner Participant Documents and may not be
relied upon by any other person or for any other purpose without my express
written consent. This opinion may be relied upon by Messrs. Simpson, Thacher
& Bartlett in rendering their opinion of even date herewith.
Very truly yours,
Nancy S. Rights
SCHEDULE A
Lessee
Federal Express Corporation
2007 Corporate Avenue
Memphis, Tennessee 38132
Owner Trustee
State Street Bank and Trust Company
of Connecticut, National Association
Two International Place
4th Floor
Boston, Massachusetts 02110
Indenture Trustee, Pass Through Trustee & Subordination Agent
First Security Bank, National Association
79 South Main Street
Salt Lake City, Utah 84111
Underwriters
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
First Chicago Capital Markets, Inc.
Corporate Securities
One First National Plaza
Chicago, Illinois 60670
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
J.P. Morgan & Co.
60 Wall Street
New York, New York 10260
Liquidity Provider
Kredietbank N.V., New York Branch
125 West 55th Street
New York, New York 10019
EXHIBIT A(3)
[Letterhead of Ray, Quinney & Nebeker]
[Certificate Closing Date]
To the Persons Listed in Schedule A Attached Hereto
Re: Federal Express Corporation Trust No. N674FE
Ladies and Gentlemen:
We have acted as special counsel to First Security Bank,
National Association, a national banking association ("First Security"), in
connection with the Participation Agreement (Federal Express Corporation
Trust No. N674FE), dated as of May 1, 1997 (the "Participation
Agreement"), among Federal Express Corporation, as Lessee, PMCC Leasing
Corporation, as Owner Participant, State Street Bank and Trust Company of
Connecticut, National Association, not in its individual capacity, except
as otherwise stated, but solely as Owner Trustee, and First Security, not
in its individual capacity, except as otherwise stated, but solely as
Indenture Trustee, Pass Through Trustee and Subordination Agent. Pursuant
to the Participation Agreement, one Airbus A300F4-605R aircraft bearing
U.S. Registration No. N674FE (the "Aircraft") is being financed. This
opinion is furnished pursuant to Section 4.01(k)(iv) of the Participation
Agreement. Capitalized terms used herein and not otherwise defined are
used as defined in the Participation Agreement, except that references
herein to any instrument shall mean such instrument as in effect on the
date hereof.
We have examined executed counterparts or copies otherwise
identified to our satisfaction of the following documents:
(a) The Participation Agreement;
(b) The Indenture;
(c) The Ancillary Agreement I;
(d) The Ancillary Agreement II:
(e) The Collateral Account Control Agreement;
(f) The Certificates; and
(g) The French Pledge Agreement;
(each of the documents identified in paragraphs (a) through (g) above are
collectively referred to as the "Indenture Trustee Documents").
We have also examined originals or copies of such other
documents, such corporate records, certificates and other statements of
governmental officials and corporate officers and other representatives of the
corporations or entities referred to herein and such other instruments as we
have deemed necessary or appropriate for the purposes of this opinion.
Moreover, as to certain facts material to the opinions expressed herein, we
have relied upon representations and warranties contained in the Indenture
Trustee Documents.
Based upon the foregoing and upon an examination of such
questions of law as we have considered necessary or appropriate, and subject
to the assumptions, exceptions and qualifications set forth below, we advise
you that, in our opinion:
1. First Security is a national banking association duly
organized and validly existing under the laws of the United States of
America holding a valid certificate to do business as a national
banking association, with banking and trust powers, and each of First
Security and the Indenture Trustee, as the case may be, has or had,
on the date of execution thereof, full corporate power, authority and
legal right to execute, deliver and perform each of the Indenture
Trustee Documents to which it is or is to be a party and to
authenticate the Certificates delivered on the Certificate Closing
Date.
2. Each of First Security and the Indenture Trustee, as the
case may be, has duly authorized, executed and delivered each
Indenture Trustee Document to which it is a party; each such document
constitutes a legal, valid and binding obligation of the Indenture
Trustee (and, to the extent set forth in the respective Indenture
Trustee Document, of First Security) enforceable against the
Indenture Trustee (and, to the extent set forth in the respective
Indenture Trustee Document, against First Security) in accordance
with its terms.
3. The Certificates issued and dated the Certificate Closing
Date have been duly authenticated and delivered by the Indenture
Trustee pursuant to the terms of the Indenture.
4. Neither the authorization, execution and delivery by the
Indenture Trustee or First Security, as the case may be, of the
Indenture Trustee Documents, nor the authentication and delivery by
the Indenture Trustee of the Certificates nor the fulfillment or
compliance by the Indenture Trustee or First Security with the
respective terms and provisions thereof nor the consummation of any
of the transactions by the Indenture Trustee or First Security, as
the case may be, contemplated thereby, requires the consent or
approval of, the giving of notice to, the registration with, or the
taking of any other action in respect of, any court or administrative
or governmental authority or agency of the State of Utah or the
United States of America governing the banking or trust powers of
First Security.
5. The execution, delivery and performance by the Indenture
Trustee or First Security, as the case may be, of each of the
Indenture Trustee Documents and the authentication and delivery of
the Certificates by the Indenture Trustee are not in violation of the
charter or by-laws of First Security or of any law, governmental
rule, or regulation of the State of Utah or the United States of
America governing the banking or trust powers of First Security or,
to our knowledge, of any indenture, mortgage, bank credit agreement,
note or bond purchase agreement, long-term lease, license or other
agreement or instrument to which it is a party or by which it is
bound or, to our knowledge, of any judgment or order of the State of
Utah or the United States of America relating to the banking or trust
powers of First Security.
6. There are no fees, taxes or other governmental charges
payable by the Owner Trustee, the Indenture Trustee (except taxes
imposed on fees payable to First Security) or the Certificate Holders
to the State of Utah or any political subdivision thereof in
connection with the execution, delivery or performance of any of the
Operative Agreements or in connection with the issuance and
acquisition of the Certificates by the Certificate Holders or the
beneficial interests of the Certificate Holders in the Trust
Indenture Estate solely because First Security) (a) is incorporated
under the laws of the State of Utah, (b) has its principal place of
business in the State of Utah, (c) performs (in its individual
capacity or as Indenture Trustee) any or all of its duties under the
Indenture Trustee Documents in the State of Utah, and (d) engages in
any activities unrelated to the transactions contemplated by the
Indenture Trustee Documents in the State of Utah. Neither the
Indenture Trustee nor the trust created under the Indenture will be
subject to any fee, tax or other governmental charge (except for
taxes imposed on fees payable to First Security) under the laws of
the State of Utah or any political subdivision thereof in existence
on the date hereof, on, based on or measured by, directly or
indirectly, the gross receipts, net income or value of the Trust
Indenture Estate solely because First Security (a) is incorporated
under the laws of the State of Utah, (b) has its principal place of
business in the State of Utah, (c) performs (in its individual
capacity or as Indenture Trustee) any or all of its duties under the
Indenture Trustee Documents in the State of Utah, and (d) engages in
any activities unrelated to the transactions contemplated by the
Indenture Trustee Documents in the State of Utah. There is no fee,
tax or other governmental charge (except for taxes imposed on fees
payable to First Security) under the laws of the State of Utah or any
political subdivision thereof in existence on the date hereof, on,
based on or measured by any payments under the Certificates by reason
of the creation of the trust under the Indenture solely because First
Security (a) is incorporated under the laws of the State of Utah, (b)
has its principal place of business in the State of Utah, (c)
performs (in its individual capacity or as Indenture Trustee) any or
all of its duties under the Indenture Trustee Documents in the State
of Utah, and (d) engages in any activities unrelated to the
transactions contemplated by the Indenture Trustee Documents in the
State of Utah. We express no opinion as to whether or not any fees,
taxes or other charges are now or hereafter may be payable by the
Owner Participant to the State of Utah or any political subdivision
thereof in connection with (a) the execution, delivery or performance
by any of the Indenture, the Participation Agreement or any of the
other Operative Agreements and (b) the making by the Owner
Participant of its investment in the Aircraft.
7. There are no actions, suits, investigations or proceedings
pending or, to our knowledge, threatened against or affecting First
Security or the Indenture Trustee, as the case may be, or any of its
properties in any court or before any administrative agency or
arbitrator, which, if adversely determined, would materially
adversely affect the ability of First Security or the Indenture
Trustee, as the case may be, to perform its obligations under any of
the Indenture Trustee Documents, and there are no pending or, to our
knowledge, threatened actions or proceedings before any court,
administrative agency or tribunal involving First Security or the
Indenture Trustee, as the case may be, in connection with the
transactions contemplated by any of the Indenture Trustee Documents.
The foregoing opinions are subject to the following
assumptions, exceptions and qualifications:
A. We are admitted to practice law in the State of Utah and we
do not hold ourselves out as being experts on the laws of any other
jurisdiction. The foregoing opinions are limited to the laws of the State of
Utah, the federal laws of the United States of America governing the banking
and trust powers of First Security and Title II of the United States Code
entitled "Bankruptcy". However, we express no opinion with respect to (i)
federal securities laws, including the Securities Act of 1933, as amended, the
Securities Exchange Act of 1934, as amended, and the Trust Indenture Act of
1939, as amended, (ii) the Federal Aviation Act of 1958, as amended and (iii)
state securities or blue sky laws. Insofar as the foregoing opinions relate
to the validity and enforceability in the State of Utah of the Certificates
and the other Indenture Trustee Documents expressed to be governed by the laws
of the State of New York, we have assumed that the laws of New York are
identical to the laws of Utah in all material respects, and that the
Certificates and such Indenture Trustee Documents constitute legal, valid,
binding and enforceable documents or instruments under such laws (as to which
we express no opinion). No opinion is expressed as to the priority of any
security interest or as to title to any part of the Trust Estate.
B. The foregoing opinions regarding enforceability of any
document or instrument, are subject to (i) applicable bankruptcy, insolvency,
moratorium, reorganization, receivership and similar laws affecting the rights
and remedies of creditors generally, and (ii) general principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or at law).
C. We have assumed the due authorization, execution and
delivery by each of the parties thereto, other than First Security and the
Indenture Trustee, of the Indenture Trustee Documents to which each is a party
and that each of such parties has the full power, authority and legal right to
execute and deliver each such document.
D. We have assumed that all signatures (other than those of
the Indenture Trustee or First Security) on documents and instruments
examined by us are genuine, that all documents and instruments submitted to
us as originals are authentic, and that all documents and instruments
submitted to us as copies conform with the originals, which facts we have
not independently verified.
E. We have assumed that the Participation Agreement and the
transactions contemplated thereby are not within the prohibitions of Section
406 of the Employee Retirement Income Security Act of 1974.
This opinion is rendered solely for your benefit and may not be
relied upon by any other person or entity for any purpose without our prior
written consent.
Very truly yours,
Ray, Quinney & Nebeker
SCHEDULE A
Lessee
Federal Express Corporation
2007 Corporate Avenue
Memphis, Tennessee 38132
Owner Trustee
State Street Bank and Trust Company
of Connecticut, National Association
Two International Place
4th Floor
Boston, Massachusetts 02110
Indenture Trustee, Pass Through Trustee & Subordination Agent
First Security Bank, National Association
79 South Main Street
Salt Lake City, Utah 84111
Owner Participant
PMCC Leasing Corporation
200 First Stamford Place
Stamford, Connecticut 06902
Underwriters
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
First Chicago Capital Markets, Inc.
Corporate Securities
One First National Plaza
Chicago, Illinois 60670
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
J.P. Morgan & Co.
60 Wall Street
New York, New York 10260
Liquidity Provider
Kredietbank N.V., New York Branch
125 West 55th Street
New York, New York 10019
EXHIBIT A(4)(a)(i)
[Letterhead of Bingham, Dana & Gould]
[Certificate Closing Date]
To Each of the Parties Listed on Schedule A Hereto
Re: Federal Express Corporation Trust No. N674FE
Ladies and Gentlemen:
We have acted as counsel to State Street Bank and Trust
Company of Connecticut, National Association, a national banking
association in its individual capacity ("State Street") and its capacity as
Owner Trustee (the "Owner Trustee") under the Trust Agreement (Federal
Express Corporation Trust No. N674FE) dated as of May 1, 1997 between
State Street and PMCC Leasing Corporation, as Owner Participant ("Owner
Participant") (the "Trust Agreement") in connection with the transactions
contemplated by that certain Participation Agreement (Federal Express
Corporation Trust No. N674FE) dated as of May 1, 1997 (the "Participation
Agreement") by and among Federal Express Corporation (the "Lessee"); the
Owner Participant; and First Security Bank, National Association, in its
individual capacity and as Indenture Trustee (the "Indenture Trustee"),
Pass Through Trustee and Subordination Agent. Except as otherwise defined
herein, all capitalized terms used herein shall have the respective
meanings set forth in, or by reference to, the Participation Agreement.
The Owner Trustee has requested that we deliver this opinion to
you in accordance with Section 4.01 of the Participation Agreement.
Our representation of State Street has been as special counsel
for the purposes stated above. As to all matters of fact (including factual
conclusions and characterizations and descriptions of purpose, intention or
other state of mind), we have relied entirely upon (i) the representations of
the parties set forth in the Operative Agreements and (ii) certificates
delivered to us by the management of State Street and have assumed, without
independent inquiry, the accuracy of those representations and certificates.
We have examined each of the Operative Agreements to which
State Street or the Owner Trustee, as applicable is a party (the "Owner
Trustee Documents"), the Certificate of the Comptroller of the Currency
relating to State Street and originals, or copies certified or otherwise
identified to our satisfaction, of such other corporate records, documents,
certificates and other instruments as we have deemed necessary or advisable
for the purposes of rendering this opinion.
We have assumed the genuineness of all signatures (other than
those on behalf of State Street and the Owner Trustee), the conformity to the
originals of all documents reviewed by us as copies, the authenticity and
completeness of all original documents reviewed by us in original or copy form
and the legal competence of each individual executing any document (other than
on behalf of State Street and the Owner Trustee).
When an opinion set forth below is given to the best of our
knowledge, or to our knowledge, or with reference to matters of which we are
aware or which are known to us, or with another similar qualification, the
relevant knowledge or awareness is limited to the actual knowledge or
awareness of the individual lawyer in the firm that signed this opinion, the
individual lawyers in the firm who have participated directly in the specific
transactions to which this opinion relates or in the preparation of this
opinion and the partner of the firm responsible for State Street corporate
trust matters, and without any special or additional investigation undertaken
for the purposes of this opinion.
Each opinion set forth below relating to the enforceability of
any agreement or instrument against State Street, the Owner Trustee or the
Owner Participant, as applicable, is subject to the following general
qualifications:
(i) as to any agreement to which State Street or the
Owner Trustee, as applicable, is a party, we assume that such
agreement is the legal, valid and binding obligation or each other
party thereto;
(ii) except as otherwise set forth in our opinions 13
and 14 below, the enforceability of any obligation of State
Street, the Owner Trustee and the Owner Participant, may be
limited by bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium, marshaling, or other similar laws and
rules of law affecting the enforcement generally of creditors'
rights and remedies (including such as may deny giving effect to
waivers of debtors' or guarantors' rights);
(iii) no opinion is given herein as to the enforceability
of any particular provision of any of the Owner Trustee Documents
relating to remedies after default or as to the availability of any
specific or equitable relief of any kind. However, we are of the
opinion that, subject to the other limitations and qualifications
contained in this opinion, the remedies provided in the Owner Trustee
Documents, taken as a whole, are adequate for the realization of the
principal benefits or security of said agreements (except for the
economic consequences of procedural or other delay); and
(iv) the enforcement of any rights and the availability
of any specific or equitable relief of any kind may in all cases be
subject to an implied duty of good faith and to general principles of
equity (regardless of whether such enforceability or relief is
considered in a proceeding at law or in equity) and, as to any of
your rights to collateral security, will be subject to a duty to act
in a commercially reasonable manner.
Subject to the limitations set forth herein, we have made
such examination of law as we have deemed necessary for the purposes of
this opinion. The opinions expressed herein are limited solely to the
internal substantive laws of the State of Connecticut and the Federal laws
of the United States of America. No opinion is expressed herein as to the
application or effect of federal securities laws or as to the securities or
so-called "Blue Sky" laws of any state or other jurisdiction. In addition,
no opinion is expressed as to matters governed by the Transportation Code,
or by any other law, statute, rule or regulation of the United States
relating to the acquisition, ownership, registration, use, operation,
maintenance, repair, replacement or sale of or the nature of the Aircraft,
Airframe or the Engines.
We have made no examination of, and no opinion is given herein
as to the Owner Trustee's or Owner Participant's title to or other ownership
rights in, or the existence of any liens, charges or encumbrances on, or
adverse claims against, any of the Indenture Estate. We express no opinion as
to the creation, attachment, perfection or priority of any mortgage, security
interest or lien in any of the Indenture Estate.
With your permission and without investigation, with respect to
paragraphs 2, 3 and 4 below in connection with our opinion relating to the
legality, validity, binding effect of the documents there referred to, to the
extent that the laws of the State of Connecticut do not govern such documents,
we have assumed that the laws of the jurisdictions whose laws govern such
documents are not materially different from the internal substantive laws of
the State of Connecticut.
In rendering our opinion in paragraphs 12 and 13 below, we have
assumed that the Owner Participant acquired its interest in the Trust Estate
for fair consideration and in good faith without any intention to hinder,
defraud or defraud or delay the Owner Participant's creditors.
This opinion is rendered solely for the benefit of those
institutions listed on Schedule A hereto and their respective successors and
assigns in connection with the transactions contemplated by the Operative
Agreements and may not be used or relied upon by any other person or for any
other purpose.
Based upon the foregoing, we are of the opinion that:
1. State Street is a national banking association duly
organized, validly existing and in good standing with the Comptroller
of the Currency under the laws of the United States of America, is a
"citizen of the United States" within the meaning of Section
40102(a)(15) of Title 49 of the United States Code, as amended and
has full corporate power, authority and legal right to execute,
deliver and perform its obligations under the Trust Agreement and, as
Owner Trustee under the Trust Agreement, to execute, deliver and
perform its obligations under the other Owner Trustee Agreements and
to issue, execute, deliver and perform its obligations under the
Certificate.
2. State Street has duly authorized, executed, and delivered
the Participation Agreement and the Trust Agreement and the
Participation Agreement and the Trust Agreement constitute the legal,
valid and binding obligation of State Street, enforceable against it
in its individual capacity in accordance with the terms thereof.
3. The Owner Trustee is duly authorized under the Trust
Agreement to execute, deliver and perform each of the Owner Trustee
Agreements and each such Owner Trustee Agreement constitutes a legal,
valid and binding obligation of the Owner Trustee enforceable against
the Owner Trustee in accordance with its terms. The Certificate has
been duly issued, executed and delivered by the Owner Trustee,
pursuant to authorization contained in the Trust Agreement, and
assuming due authentication thereof by the Indenture Trustee,
constitutes the legal, valid and binding obligation of the Owner
Trustee enforceable against the Owner Trustee in accordance with its
terms and the terms of the Indenture; and the Certificate is entitled
to the benefits and security afforded by the Indenture in accordance
with its terms and the terms of the Indenture.
4. Assuming the due authorization, execution and delivery of
the Trust Agreement by the Owner Participant and that the Owner
Participant has the requisite corporate power and authority to enter
into and perform its obligations under the Trust Agreement, said
Trust Agreement constitutes the legal, valid and binding obligation
of the Owner Participant, enforceable against the owner Participant
in accordance with the terms thereof.
5. The Trust Agreement duly creates a legal and valid trust
under Connecticut law; the trust created by the Trust Agreement
exists for the benefit of the Owner Participant as provided therein
and creates for the benefit of the Owner Participant the interest in
the Trust Estate which the Trust Agreement by its terms purports to
create, subject however to the provisions of, and the Liens created
by, the Indenture and the Lease.
6. To the extent that the Uniform Commercial Code of the State
of Connecticut (the "UCC") is applicable, except for the Indenture
Trustee's taking possession of all monies and securities (including
instruments) constituting part of the Trust Indenture Estate, no
action, including the filing or recording of any document, is
necessary (i) to create under the UCC the security interest in the
Trust Indenture Estate (including the grant and assignment unto the
Indenture Trustee of the security interest in all estate, right,
title and interest of the Owner Trustee in, to and under the Lease
and the Participation Agreement) which the Indenture by its terms
purports to create in favor of the Indenture Trustee, and (ii) to
perfect in the State of Connecticut such security interest, except
for the filing of a UCC financing statement complying with the formal
requisites of Section 9-402 of the UCC in the office of the Division
of Corporations and Commercial Code of the State of Connecticut with
respect to the security interest, which filing has been duly
effected, and the filing of continuation statements with respect
thereto required to be filed at periodic intervals under the UCC.
7. Neither the execution, delivery or performance by the Owner
Trustee, in its individual capacity or as Owner Trustee, as the case
may be, of the Certificates or the Owner Trustee Documents, the
consummation by the Owner Trustee, in its individual capacity or as
Owner Trustee, as the case may be, of any of the transactions
contemplated thereby nor the compliance by the Owner Trustee, in its
individual capacity or as Owner Trustee, as the case may be, with any
of the terms and provisions thereof (i) requires any approval of its
stockholders, any consent or approval of or the giving of notice to
any trustees or holders of any indebtedness or obligations of it
known to us, or (ii) violates its charter documents or by-laws, or
contravenes or will contravene any provision of, or constitutes a
default under, or results in any breach of, or results in the
creation of any Lien (other than as permitted under the Operative
Agreements) upon property under, any indenture, mortgage, chattel
mortgage, deed of trust, conditional sales contract, bank loan or
credit agreement, license or other agreement or instrument, in each
case, known to us to which it is a party or by which it is bound or
contravenes any Connecticut or United States applicable law governing
the banking or trust powers of the Owner Trustee, or any judgment or
order in each case, known to us applicable to or binding on it.
8. To our knowledge, there are no proceedings or actions
pending or threatened against or affecting the Owner Trustee, in its
individual capacity or as Owner Trustee, before any governmental
authority which, individually or in the aggregate, if adversely
determined, would materially and adversely affect the ability of the
Owner Trustee, in its individual capacity or as Owner Trustee, as the
case may be, to enter into or to perform its obligations under the
Owner Trustee Documents or the Certificate.
9. No consent, approval, order or authorization of, giving of
notice to, or registration with, or taking of any other action in
respect of, any Connecticut or United States governmental authority
regulating the banking or trust powers of the Owner Trustee, in its
individual capacity, is required for the execution and delivery of,
or the carrying out by, the Owner Trustee in its individual capacity
or as Owner Trustee, as the case may be, of any of the transactions
contemplated by the Owner Trustee Documents, other than any such
consent, approval, order, authorization, registration, notice or
action as has been duly obtained, given or taken.
10. There are no fees, taxes or other charges payable by the
Owner Trustee, the Trust Estate or the trust created by the Trust
Agreement imposed by the State of Connecticut or any political
subdivision or taxing authority thereof in connection with the
execution, delivery and performance by State Street, individually or
as Owner Trustee, of the Owner Trust Documents (other than franchise
or other taxes based on or measured by any fees or compensation
received by State Street, acting as the Owner Trustee, for services
rendered in connection with the transactions contemplated by the
Operative Agreements) and, assuming that the trust created by the
Trust Agreement will not be taxable as a corporation, but, rather,
will be characterized as a grantor trust under subpart E, Part I of
Subchapter J of the Internal Revenue Code of 1986, as amended, or
will be otherwise ignored for Federal tax purposes, (i) such trust
will not be subject to any fees, taxes or other charges imposed by
the State of Connecticut or any political subdivision thereof based
on income, receipts, value or otherwise, (ii) Holders that are not
residents of or otherwise subject to tax in Connecticut will not be
subject to any taxes imposed by the State of Connecticut or any
political subdivision thereof as a result of purchasing, holding
(including receiving payments with respect to) or selling a
Certificate and (iii) assuming the Owner Participant is not a
Connecticut resident or otherwise subject to tax in Connecticut and
further assuming that the assets of the trust created by the Trust
Agreement are not deemed to be located in Connecticut, the Owner
Participant will not be subject to any taxes imposed by the State of
Connecticut or any political subdivision thereof solely as a result
of being the beneficial owner of the trust created by the Trust
Agreement.
11. To our knowledge, there exist no liens or encumbrances
affecting the right, title and interest of the Owner Trustee in and
to the Trust Estate resulting from claims against State Street not
related to the ownership of the Trust Estate or any other transaction
contemplated by the Operative Agreements.
12. All the properties which are part of the Indenture Estate
(including all right, title and interest of the Owner Trustee pledged
and mortgaged by it pursuant to the Indenture) have been pledged and
mortgaged with the Indenture Trustee as part of the Indenture Estate,
and the beneficial interest of the Owner Participant under the Trust
Agreement in and to such properties is subject, to the extent
provided in the Indenture, to the liens of the Indenture in favor of
the holders from time to time of the Certificate.
13. Neither a Connecticut court nor a Federal court applying
federal law or Connecticut law, if properly presented with the issue
and after having properly considered such issue, would permit the
Owner Participant to terminate the Trust Agreement, except as
otherwise provided therein, until the Lien of the Indenture on the
Indenture Estate has been released and until payment in full of the
principal of, and premium, if any, and interest on, the Certificates
and all other sums due the holders of the Certificates has been made.
14. Under the laws of the State of Connecticut, as long as the
Trust Agreement has not been terminated in accordance with its terms,
creditors of any person that is an Owner Participant, holders of a
lien against the assets of any such person and representatives of
creditors of any such person, such as trustees, receivers or
liquidators (whether or not any insolvency proceeding has been
commenced) (collectively the "Creditors") may acquire legal, valid
and enforceable claims and liens, as to the Trust Estate, only
against the beneficial interest of such person in the Trust Estate,
and do not have, and may not through the enforcement of such
Creditors' rights acquire, any other legal, valid, and enforceable
claim or lien against the Trust Estate.
Very truly yours,
Bingham, Dana & Gould LLP
SCHEDULE A
Lessee
Federal Express Corporation
2007 Corporate Avenue
Memphis, Tennessee 38132
Owner Trustee
State Street Bank and Trust Company
of Connecticut, National Association
Two International Place
4th Floor
Boston, Massachusetts 02110
Indenture Trustee, Pass Through Trustee & Subordination Agent
First Security Bank, National Association
79 South Main Street
Salt Lake City, Utah 84111
Owner Participant
PMCC Leasing Corporation
200 First Stamford Place
Stamford, Connecticut 06902
Underwriters
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
First Chicago Capital Markets, Inc.
Corporate Securities
One First National Plaza
Chicago, Illinois 60670
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
+J.P. Morgan & Co.
60 Wall Street
New York, New York 10260
Liquidity Provider
Kredietbank N.V., New York Branch
125 West 55th Street
New York, New York 10019
[Letterhead of Bingham, Dana & Gould]
[Certificate Closing Date]
To Each of the Parties Listed on Schedule A Hereto
Re: Trust Indenture and Security Agreement (Federal Express
Corporation Trust No. N674FE) dated as of May 1, 1997 (the
"Indenture"), between First Security Bank, National Association
(the "Indenture Trustee"), and State Street Bank and Trust
Company of Connecticut, National Association, not in its
individual capacity, but solely as Owner Trustee (the "Owner
Trustee")
Ladies and Gentlemen:
We have acted as special Connecticut counsel to the Owner
Trustee in connection with the Indenture and the Collateral Account Control
Agreement dated as of May 1, 1997 (the "Control Agreement"), among the Owner
Trustee, the Indenture Trustee and State Street Bank and Trust Company, as
Custodian (the "Custodian").
We are issuing this opinion solely in our capacity as counsel
to the Owner Trustee under the circumstances set forth in this paragraph and
solely as to the matters set forth herein. Pursuant to the Indenture, the
Owner Trustee purports to grant to the Indenture Trustee a security interest,
inter alia, in those securities and instruments, presently owned or hereafter
acquired by the Owner Trustee, that are from time to time credited to an
account numbered [*****] (the "Collateral Account") established by the Owner
Trustee with the Custodian and which securities and instruments the Owner
Trustee has directed the Custodian to identify on the books and records of the
Custodian as being subject to a security interest in favor of the Indenture
Trustee to secure the payment to the Indenture Trustee of the Owner Trustee's
obligations (the "Obligations") under the Indenture. Those securities and
instruments which the Owner Trustee has directed the Custodian to so identify
on the books of the Custodian as being subject to such security interest, and
which, at the time of reference thereto, have not been withdrawn from such
identification or the Collateral Account, are hereinafter referred to,
collectively, as the "Liquid Collateral." We have assumed with your
permission for purposes of this opinion that the Liquid Collateral consists
solely of (a) "securities", either "uncertificated securities" or
"certificated securities", as each such term is defined in Section 8-102 of
the Uniform Commercial Code as currently in effect in the State of Connecticut
(the "Connecticut UCC"), (b) "instruments" (as such term is defined in Section
9-105(1)(i) of the Connecticut UCC) and (c) "general intangibles" (as such
term is defined in Section 9-106 of the Connecticut UCC).
For purposes of this opinion, we have examined the Indenture,
the Control Agreement and such other documents and instruments as are referred
to as having been examined by us for purposes of our opinion letter dated May
___,1997, addressed to the parties listed on Schedule A hereto.
As to all matters of fact, we have examined and have relied
entirely upon the representations and warranties contained in and made
pursuant to the Indenture and the Control Agreement, without any independent
investigation of any kind.
We have assumed the genuineness of all signatures (other
than those on behalf of the Owner Trustee and the Custodian), the
conformity to the originals of all documents reviewed by us as copies, the
authenticity and completeness of all original documents reviewed by us in
original or copy form, and the legal competence of each individual
executing any document (other than on behalf of the Owner Trustee and the
Custodian).
For purposes of this opinion, we have made such examination of
law as we have deemed necessary. This opinion is limited solely to the
internal substantive laws of the State of Connecticut as applied by courts
located in the State of Connecticut and, where applicable, (i) the revised
Article 8 of the Uniform Commercial Code (with Conforming and Miscellaneous
Amendments to Articles 1, 3, 4, 5, 9 and 10) 1994 Official Text (the "Revised
Article 8") and (ii) the federal laws of the United States of America, in each
case without regard to choice of law. No opinion is given as to the choice of
law which any tribunal may apply to the transactions referred to herein.
Our opinion is further subject to the following exceptions,
qualifications and assumptions, all of which we understand to be acceptable to
you:
(a) We have assumed without any independent investigation
that each party to the transactions contemplated by the Indenture or
the Control Agreement at all times relevant thereto (other than the
Owner Trustee) was duly organized, validly existing and in good
standing under the laws of the jurisdiction in which it was
incorporated or organized, and had and has the full power, authority
and legal right under its certificate of incorporation, articles of
organization and other governing documents, corporate or other
enterprise legislation and applicable laws, as the case may be, to
execute and deliver and perform its obligations under all documents
executed by it in connection with those transactions.
(b) We have assumed without any independent investigation
(i) the due authorization, execution and delivery of each of the
Indenture and the Control Agreement by the Indenture Trustee, (ii)
that the execution, delivery and performance by the Indenture
Trustee of each of the Indenture and the Control Agreement does
not and will not conflict with, or result in a breach of, the
terms, conditions or provisions of, or result in a violation of,
or constitute a default or require any consent (other than such
consents as have been duly obtained) under, any organizational
document, any order, judgment, arbitration award or stipulation,
or any agreement, to which the Indenture Trustee is a party or is
subject or by which any of the properties or assets of the
Indenture Trustee is bound, (iii) that the Owner Trustee has
received "value," as defined under the Connecticut UCC, for the
incurrence of the Obligations, (iv) that, whenever the Custodian
receives instructions from the Owner Trustee for the Custodian to
note on its books and records that any securities or instruments
credited to the Collateral Account are to be subject to a security
interest in favor of the Indenture Trustee to secure the payment
of the Obligations, such instructions will have been duly
authorized by or on behalf of the Owner Trustee and (v) that, when
the Indenture Trustee is to act in connection with any of the
transactions contemplated by the Indenture, it is acting in its
capacity as Indenture Trustee.
(c) We have made no examination of, and no opinion is given
herein as to, the Owner Trustee's title to or other ownership rights
in, or the existence of any liens, charges or encumbrances on, or
adverse claims against, the Liquid Collateral, other than the
security interest in favor of the Indenture Trustee as contemplated
by the Indenture and the Control Agreement, and have assumed that the
Owner Trustee has, or at the time of any purported attachment of the
security interest in the relevant Liquid Collateral will have, rights
in the Liquid Collateral.
(d) The perfection and the effect of perfection and
non-perfection of a security interest in the Liquid Collateral that
comprises "uncertificated securities" are, pursuant to Section
9-103(6) of the Connecticut UCC, and the effectiveness of
registration by the issuer and the rights and duties of the issuer
with respect to the registration of transfer, pledge or release of an
"uncertificated security" are, pursuant to Section 8-106 of the
Connecticut UCC, in each case, governed by the laws of the respective
jurisdictions of organization of the issuer or issuers of such
securities, including the conflict of laws rules of such
jurisdictions. Therefore, we express no opinion with respect to such
matters regarding "uncertificated securities" issued by issuers
organized outside of the State of Connecticut other than book-entry
Treasury securities referred to below.
(e) We point out that, pursuant to Part 357 of Title 31 of
the United States Code of Federal Regulations ("CFR"), with
respect to United States "book-entry Treasury securities"
maintained by a Federal Reserve Bank and, pursuant to other
relevant sections of the CFR, with respect to various other
securities issued or guaranteed by the federal government of the
United States or an agency thereof or a corporation sponsored
thereby and maintained by a Federal Reserve Bank, the perfection
of security interests granted by commercial, non-governmental
parties in book-entry Treasury securities, or such other federal
securities, as the case may be, held in a securities account of a
participant financial institution, such as the Custodian,
maintaining such account with such Federal Reserve Bank, will be
governed by the law of the jurisdiction determined in accordance
with Section 357.11 of Title 31 of the CFR. If that jurisdiction
has not adopted Revised Article 8, then such jurisdiction will be
deemed to have adopted Revised Article 8 for purposes of
determining the law governing such perfection. Accordingly,
although Revised Article 8 has not been enacted by Connecticut as
part of the Connecticut UCC, nevertheless, pursuant to Part 357 of
Title 31 of the CFR, Revised Article 8 governs the perfection of a
security interest in book-entry Treasury securities to the extent
that Connecticut law would otherwise be applicable thereto.
(f) We have also assumed that (i) any securities comprised in
the Liquid Collateral and held by Depository Trust Company or another
clearing corporation will be held by Depository Trust Company or such
other clearing corporation for the direct account of the Custodian
and not for the account of the Custodian through any other financial
intermediary, (ii) any securities comprised in the Liquid Collateral
and not constituting either (x) "certificated securities" (as defined
in Section 8-102 of the Connecticut UCC) for which the Custodian
physically holds the certificate or certificates evidencing solely
such securities, or (y) "uncertificated securities" (as defined in
Section 8-102 of the Connecticut UCC) for which the Custodian is the
registered owner on the books of the issuer solely of such
securities, will constitute, or will be held as part of, a fungible
bulk of such "securities" that are registered in the name of the
Custodian or are shown on the Custodian's account on the books of
another financial intermediary, (iii) any "certificated securities"
(as defined in Section 8-102 of the Connecticut UCC) comprised in the
Collateral, if held directly by the Custodian, will be at all times
in the physical possession of the Custodian, and any other
"instruments" (as defined in Section 9-105(1)(i) of the Connecticut
UCC) comprised in the Collateral will be at all times held directly
by and in the physical possession of the Custodian, and (iv) any
securities comprised in the Liquid Collateral consisting of
"book-entry Treasury securities" or other uncertificated federal
securities will be credited to a direct account of the Custodian with
a Reserve Bank (as such term is defined in the relevant section of
the CFR) and not for the account of the Custodian through a financial
intermediary.
(g) We do not express any opinion as to the attachment or
perfection of any security interest in (i) any securities that are
maintained with, or held on the system of, Cedel S.A., or any like
maintenance, clearing or settlement system operating outside of the
United States of America, (ii) any collateral of a type other than
"securities" or "general intangibles" (as defined in Section 9-106 of
the Connecticut UCC) or "instruments" (as defined in Section
9-105(1)(i) of the Connecticut UCC), (iii) the Collateral Account, to
the extent that the Collateral Account constitutes an asset, other
than general intangibles, separate from the property credited
thereto, (iv) any Liquid Collateral which, at the time of reference
thereto, is no longer identified as subject to a security interest
in favor of the Indenture Trustee or has otherwise been withdrawn from
the Collateral Account, or (v) any identifiable proceeds of any Liquid
Collateral (A) following the lapse of the ten day period set forth in
Section 9-306(3) of the Connecticut UCC, to the extent that such
proceeds do not constitute securities, instruments or general
intangibles in which a security interest is perfected in the manner
contemplated by this opinion, as if such proceeds were original
Liquid Collateral, (B) where such proceeds constitute securities and
in which proceeds a security interest is not perfected in the manner
contemplated by this opinion, as if such proceeds were original
collateral, or (C) where the proceeds constitute collateral which is
excluded from Article 8 or 9 of the Connecticut UCC.
(h) We express no opinion as to the priority of such security
interest over any other or competing interest in or claims against
such Liquid Collateral.
(i) We have assumed that (i) the Custodian, in the ordinary
course of business, accepts for deposit securities as a service for
its customers, maintains securities accounts in the names of such
customers reflecting ownership of or interests in such securities,
and, in regard to the transactions contemplated by the Indenture, is
acting in such capacity, (ii) all securities from time to time
credited to the Collateral Account and to be comprised in the Liquid
Collateral will have been "transferred" (within the meaning of
Section 8-313(1) of the Connecticut UCC) to the Custodian by the
issuers or prior holders of such Liquid Collateral, (iii) the records
of the Custodian indicate and will, at the time of reference thereto,
indicate that the aggregate amount of each security comprised in the
Liquid Collateral, together with all other such securities carried by
the Custodian for its customers and for its proprietary account, is
at least equal to the aggregate amount of such security carried by it
for its customers and for its proprietary account, (iv) the books and
records of the Custodian indicate and will, at the time of reference
thereto, indicate that the securities to be comprised in the Liquid
Collateral are registered on the books and records of the Custodian
as being for the beneficial account of the Owner Trustee, subject to,
as identified on such books and records, the security interest
therein in favor of the Indenture Trustee, and (v) the Custodian has
sent and, at the time of reference thereto, will have sent the
confirmations of such entries and identifications to the Indenture
Trustee and to Federal Express Corporation.
(j) In so far as our opinion relates to the enforceability
of any obligations of the Owner Trustee, the enforcement of such
obligations may be limited by bankruptcy, insolvency,
reorganization, moratorium, marshalling or other laws and rules of
law affecting the enforcement generally of creditors' rights and
remedies (including such as may deny giving effect to waivers of
debtors' or guarantors' rights); and we express no opinion as to
(i) the status under Section 548 of the Bankruptcy Code and
applicable state fraudulent conveyance laws of the obligations of
the Owner Trustee under the Indenture or interests purported to be
granted pursuant to the Indenture, (ii) the enforceability of any
particular provision of the Indenture relating to remedies after
default or as to the availability of any specific or equitable
relief of any kind (and we point out that the enforcement of any
of your rights may in all cases be subject to an implied duty of
good faith and fair dealing and to general principles of equity,
regardless of whether such enforceability is considered in a
proceeding at law or in equity, and, as to any of your rights to
collateral security, will be subject to a duty to act in a
commercially reasonable manner) or (iii) the enforceability of any
particular provision of the Indenture relating to (A) waivers of
defenses, of rights to trial by jury, or rights to object to
jurisdiction or venue and other rights or benefits bestowed by
operation of law, (B) the effect of suretyship defenses, or
defenses in the nature thereof, with respect to obligations of any
applicable guarantor, joint obligator or surety, (C) waivers of
provisions which are not capable of waiver under Sections 1-102(3)
and 9-501(3) of the Connecticut UCC, (D) the grant of powers of
attorney to the Indenture Trustee, (E) exculpation clauses,
indemnity clauses and clauses relating to releases or waivers of
unmatured claims or rights, (F) interest or other charges that may
be usurious under applicable law, or (G) the collection of
interest on overdue interest or providing for a penalty rate of
interest or late charges on overdue or defaulted obligations.
However, notwithstanding the qualification set forth in the
foregoing clause (ii), and excluding the parenthetical in that
clause, subject to the other exceptions, qualifications and
limitations set forth in this opinion (including the parenthetical
in clause (ii) and subject to the fact that there may be economic
consequences arising out of any procedural or other delay on
account of the limitation or unenforceability of any particular
provision of the Indenture relating to remedies after default,
such limitation or unenforceability does not, in our judgment,
render the provisions of the Indenture and the Control Agreement
relating to remedies after default, taken as a whole, inadequate
for the practical realization of the benefits of enforcement of a
security interest in the Liquid Collateral following the receipt
by the Custodian of an enforcement notice properly given under the
Indenture and the Control Agreement by the Indenture Trustee to
the Custodian with respect to such Liquid Collateral.
(k) With respect to property as to which the security
interest purported to be granted pursuant to the Indenture
attaches after the date hereof, we call to your attention that
Section 552 of the Bankruptcy Code limits the extent to which
assets acquired by a debtor after the commencement of a case under
the United States Bankruptcy Code may be subject to a security
interest arising from a security agreement entered into by the
debtor before the commencement of such case. We further call to
your attention that under Section 547 of the Bankruptcy Code, a
security interest that attaches within the relevant period set
forth in Section 547(b)(4) of the Bankruptcy Code may be avoidable
under certain circumstances.
Based upon and subject to the foregoing, we are of the opinion
that:
1. The Indenture Trustee has, under the terms of the
Connecticut UCC and, in the case of book-entry Treasury
securities, under the CFR, a perfected security interest in the
Liquid Collateral that constitutes "securities" (as such term is
defined in Section 8-102 of the Connecticut UCC), or "instruments"
(as defined in Section 9-105(1)(i) of the Connecticut UCC), and in
the identifiable proceeds thereof to secure the payment of the
Obligations.
2. The Indenture creates, under the terms of the Connecticut
UCC, a valid security interest in such of the Liquid Collateral that
constitutes "general intangibles" (as such term is defined in Section
9-106 of the Connecticut UCC) and in the identifiable proceeds
thereof to secure the payment of the Obligations. Upon the filing of
a financing statement on form UCC-1 pursuant to the Connecticut UCC
with the Secretary of State of the State of Connecticut naming the
Owner Trustee as Debtor and the Indenture Trustee as Secured Party
and accurately describing the Liquid Collateral and the Collateral
Account, which filing has been duly effected, such security interest
will be perfected (to the extent that the perfection of a security
interest in the Liquid Collateral can be accomplished by the filing
in Connecticut of financing statements under the Connecticut UCC).
We point out that:
(a) The effectiveness of a financing statement will lapse (i)
on the expiration of a five-year period from their dates of filing,
or (if later) five years from the last date as to which such
financing statements were effective following the proper filing of
continuation statements with respect thereto, unless continuation
statements are filed within six months prior to the expiration of the
applicable five-year period, (ii) with respect to general intangibles
in which a security interest has been perfected by the filing of a
financing statement in the jurisdiction of the location of the
debtor, for a period of more than four months after the debtor has
changed its location from that jurisdiction to a new jurisdiction
unless such security is perfected in the new jurisdiction within the
earlier to occur of the end of such four month period or the date on
which such financing statement would have otherwise lapsed, and (iii)
with respect to "investment property," under and as defined in
Revised Article 8, in which a security interest has been perfected by
the filing of a financing statement in the jurisdiction of the
location of the debtor, from the time that the debtor changes its
location from that jurisdiction to a new jurisdiction unless such
security interest is perfected in the new jurisdiction on or before
the time of such change of location.
(b) If any debtor changes its name, identity or corporate
structure such that any financing statement becomes misleading, such
financing statement will be ineffective to perfect a security
interest in any collateral acquired by such debtor more than four
months after such change.
We assume no obligation to update this opinion as a result of
any change in any fact, circumstance or statute or other rule of law
occurring after the date hereof.
This opinion is delivered to you solely in connection with the
transactions referred to herein and for your sole use and no other
person or entity may rely on this opinion without our express written
consent.
Very truly yours,
Bingham, Dana & Gould LLP
SCHEDULE A
Lessee
Federal Express Corporation
2007 Corporate Avenue
Memphis, Tennessee 38132
Owner Trustee
State Street Bank and Trust Company
of Connecticut, National Association
Two International Place
4th Floor
Boston, Massachusetts 02110
Indenture Trustee, Pass Through Trustee & Subordination Agent
First Security Bank, National Association
79 South Main Street
Salt Lake City, Utah 84111
Owner Participant
PMCC Leasing Corporation
200 First Stamford Place
Stamford, Connecticut 06902
Underwriters
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
First Chicago Capital Markets, Inc.
Corporate Securities
One First National Plaza
Chicago, Illinois 60670
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
J.P. Morgan & Co.
60 Wall Street
New York, New York 10260
Liquidity Provider
Kredietbank N.V., New York Branch
125 West 55th Street
New York, New York 10019
EXHIBIT A(4)(a)(ii)
[Letterhead of Bingham, Dana & Gould]
[Delivery Date]
To Each of the Parties Listed on Schedule A Hereto
Re: Federal Express Corporation Trust No. N674FE
Ladies and Gentlemen:
We have acted as counsel to State Street Bank and Trust
Company of Connecticut, National Association, a national banking
association in its individual capacity ("State Street") and its capacity as
Owner Trustee (the "Owner Trustee") under the Trust Agreement (Federal
Express Corporation Trust No. N674FE) dated as of May 1, 1997 between
State Street and PMCC Leasing Corporation, as Owner Participant ("Owner
Participant") (the "Trust Agreement") in connection with the transactions
contemplated by that certain Participation Agreement (Federal Express
Corporation Trust No. N674FE) dated as of May 1, 1997 (the "Participation
Agreement") by and among Federal Express Corporation (the "Lessee"); the
Owner Participant; and First Security Bank, National Association, in its
individual capacity and as Indenture Trustee (the "Indenture Trustee"),
Pass Through Trustee and Subordination Agent. Except as otherwise defined
herein, all capitalized terms used herein shall have the respective
meanings set forth in, or by reference to, the Participation Agreement.
The Owner Trustee has requested that we deliver this Opinion to
you in accordance with Section 4.02 of the Participation Agreement.
Our representation of State Street has been as special counsel
for the purposes stated above. As to all matters of fact (including factual
conclusions and characterizations and descriptions of purpose, intention or
other state of mind), we have relied entirely upon (i) the representations of
the parties set forth in the Operative Agreements and (ii) certificates
delivered to us by the management of State Street and have assumed, without
independent inquiry, the accuracy of those representations and certificates.
We have examined each of the Operative Agreements to which
State Street or the Owner Trustee, as applicable is a party (the "Owner
Trustee Documents"), the Certificate of the Comptroller of the Currency
relating to State Street and originals, or copies certified or otherwise
identified to our satisfaction, of such other corporate records, documents,
certificates and other instruments as we have deemed necessary or advisable
for the purposes of rendering this opinion.
We have assumed the genuineness of all signatures (other than
those on behalf of State Street and the Owner Trustee), the conformity to the
originals of all documents reviewed by us as copies, the authenticity and
completeness of all original documents reviewed by us in original or copy form
and the legal competence of each individual executing any document (other than
on behalf of State Street and the Owner Trustee).
When an opinion set forth below is given to the best of our
knowledge, or to our knowledge, or with reference to matters of which we are
aware or which are known to us, or with another similar qualification, the
relevant knowledge or awareness is limited to the actual knowledge or
awareness of the individual lawyer in the firm that signed this opinion, the
individual lawyers in the firm who have participated directly in the specific
transactions to which this opinion relates or in the preparation of this
opinion and the partner of the firm responsible for State Street corporate
trust matters, and without any special or additional investigation undertaken
for the purposes of this opinion.
Each opinion set forth below relating to the enforceability of
any agreement or instrument against State Street, the Owner Trustee or the
Owner Participant, as applicable, is subject to the following general
qualifications:
(i) as to any agreement to which State Street or the
Owner Trustee, as applicable, is a party, we assume that such
agreement is the legal, valid and binding obligation or each other
party thereto;
(ii) except as otherwise set forth in our opinions 13
and 14 below, the enforceability of any obligation of State
Street, the Owner Trustee and the Owner Participant, may be
limited by bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium, marshaling, or other similar laws and
rules of law affecting the enforcement generally of creditors'
rights and remedies (including such as may deny giving effect to
waivers of debtors' or guarantors' rights);
(iii) no opinion is given herein as to the
enforceability of any particular provision of any of the Owner
Trustee Documents relating to remedies after default or as to the
availability of any specific or equitable relief of any kind.
However, we are of the opinion that, subject to the other
limitations and qualifications contained in this opinion, the
remedies provided in the Owner Trustee Documents, taken as a
whole, are adequate for the realization of the principal benefits
or security of said agreements (except for the economic
consequences of procedural or other delay); and
(iv) the enforcement of any rights and the
availability of any specific or equitable relief of any kind may
in all cases be subject to an implied duty of good faith and to
general principles of equity (regardless of whether such
enforceability or relief is considered in a proceeding at law or
in equity) and, as to any of your rights to collateral security,
will be subject to a duty to act in a commercially reasonable
manner.
Subject to the limitations set forth herein, we have made
such examination of law as we have deemed necessary for the purposes of
this opinion. The opinions expressed herein are limited solely to the
internal substantive laws of the State of Connecticut and the Federal laws
of the United States of America. No opinion is expressed herein as to the
application or effect of federal securities laws or as to the securities or
so-called "Blue Sky" laws of any state or other jurisdiction. In addition,
no opinion is expressed as to matters governed by the Transportation Code,
or by any other law, statute, rule or regulation of the United States
relating to the acquisition, ownership, registration, use, operation,
maintenance, repair, replacement or sale of or the nature of the Aircraft,
Airframe or the Engines.
We have made no examination of, and no opinion is given herein
as to the Owner Trustee's or Owner Participant's title to or other ownership
rights in, or the existence of any liens, charges or encumbrances on, or
adverse claims against, any of the Indenture Estate. We express no opinion as
to the creation, attachment, perfection or priority of any mortgage, security
interest or lien in any of the Indenture Estate.
With your permission and without investigation, with respect to
paragraphs 2, 3 and 4 below in connection with our opinion relating to the
legality, validity, binding effect of the documents there referred to, to the
extent that the laws of the State of Connecticut do not govern such documents,
we have assumed that the laws of the jurisdictions whose laws govern such
documents are not materially different from the internal substantive laws of
the State of Connecticut.
In rendering our opinion in paragraphs 12 and 13 below, we have
assumed that the Owner Participant acquired its interest in the Trust Estate
for fair consideration and in good faith without any intention to hinder,
defraud or defraud or delay the Owner Participant's creditors.
This opinion is rendered solely for the benefit of those
institutions listed on Schedule A hereto and their respective successors and
assigns in connection with the transactions contemplated by the Operative
Agreements and may not be used or relied upon by any other person or for any
other purpose.
Based upon the foregoing, we are of the opinion that:
1. State Street is a national banking association duly
organized, validly existing and in good standing with the Comptroller
of the Currency under the laws of the United States of America, is a
"citizen of the United States" within the meaning of Section
40102(a)(15) of Title 49 of the United States Code, as amended and
has or had, on the date of execution thereof, full corporate power,
authority and legal right to execute, deliver and perform its
obligations under the Trust Agreement and, as Owner Trustee under the
Trust Agreement, to execute, deliver and perform its obligations
under the other Owner Trustee Agreements and to issue, execute,
deliver and perform its obligations under the Certificate.
2. State Street has or had, on the date of execution thereof,
duly authorized, executed, and delivered the Participation Agreement
and the Trust Agreement and the Participation Agreement and the Trust
Agreement constitute the legal, valid and binding obligation of State
Street, enforceable against it in its individual capacity in
accordance with the terms thereof.
3. The Owner Trustee is duly authorized under the Trust
Agreement to execute, deliver and perform each of the Owner Trustee
Agreements and each such Owner Trustee Agreement constitutes a legal,
valid and binding obligation of the Owner Trustee enforceable against
the Owner Trustee in accordance with its terms. The Certificate has
been duly issued, executed and delivered by the Owner Trustee,
pursuant to authorization contained in the Trust Agreement, and
assuming due authentication thereof by the Indenture Trustee,
constitutes the legal, valid and binding obligation of the Owner
Trustee enforceable against the Owner Trustee in accordance with its
terms and the terms of the Indenture; and the Certificate is entitled
to the benefits and security afforded by the Indenture in accordance
with its terms and the terms of the Indenture.
4. Assuming the due authorization, execution and delivery of
the Trust Agreement by the Owner Participant and that the Owner
Participant has the requisite corporate power and authority to enter
into and perform its obligations under the Trust Agreement, said
Trust Agreement constitutes the legal, valid and binding obligation
of the Owner Participant, enforceable against the owner Participant
in accordance with the terms thereof.
5. The Trust Agreement duly creates a legal and valid trust
under Connecticut law; the trust created by the Trust Agreement
exists for the benefit of the Owner Participant as provided therein
and creates for the benefit of the Owner Participant the interest in
the Trust Estate which the Trust Agreement by its terms purports to
create, subject however to the provisions of, and the Liens created
by, the Indenture and the Lease.
6. To the extent that the Uniform Commercial Code of the State
of Connecticut (the "UCC") is applicable, except for the Indenture
Trustee's taking possession of all monies and securities (including
instruments) constituting part of the Trust Indenture Estate, no
action, including the filing or recording of any document, is
necessary (i) to create under the UCC the security interest in the
Trust Indenture Estate (including the grant and assignment unto the
Indenture Trustee of the security interest in all estate, right,
title and interest of the Owner Trustee in, to and under the Lease
and the Participation Agreement) which the Indenture by its terms
purports to create in favor of the Indenture Trustee, and (ii) to
perfect in the State of Connecticut such security interest, except
for the filing of a UCC financing statement complying with the formal
requisites of Section 9-402 of the UCC in the office of the Division
of Corporations and Commercial Code of the State of Connecticut with
respect to the security interest, which filing has been duly
effected, and the filing of continuation statements with respect
thereto required to be filed at periodic intervals under the UCC.
7. Neither the execution, delivery or performance by the Owner
Trustee, in its individual capacity or as Owner Trustee, as the case
may be, of the Certificates or the Owner Trustee Documents, the
consummation by the Owner Trustee, in its individual capacity or as
Owner Trustee, as the case may be, of any of the transactions
contemplated thereby nor the compliance by the Owner Trustee, in its
individual capacity or as Owner Trustee, as the case may be, with any
of the terms and provisions thereof (i) requires any approval of its
stockholders, any consent or approval of or the giving of notice to
any trustees or holders of any indebtedness or obligations of it
known to us, or (ii) violates its charter documents or by-laws, or
contravenes or will contravene any provision of, or constitutes a
default under, or results in any breach of, or results in the
creation of any Lien (other than as permitted under the Operative
Agreements) upon property under, any indenture, mortgage, chattel
mortgage, deed of trust, conditional sales contract, bank loan or
credit agreement, license or other agreement or instrument, in each
case, known to us to which it is a party or by which it is bound or
contravenes any Connecticut or United States applicable law governing
the banking or trust powers of the Owner Trustee, or any judgment or
order in each case, known to us applicable to or binding on it.
8. To our knowledge, there are no proceedings or actions
pending or threatened against or affecting the Owner Trustee, in its
individual capacity or as Owner Trustee, before any governmental
authority which, individually or in the aggregate, if adversely
determined, would materially and adversely affect the ability of the
Owner Trustee, in its individual capacity or as Owner Trustee, as the
case may be, to enter into or to perform its obligations under the
Owner Trustee Documents or the Certificate.
9. No consent, approval, order or authorization of, giving of
notice to, or registration with, or taking of any other action in
respect of, any Connecticut or United States governmental authority
regulating the banking or trust powers of the Owner Trustee, in its
individual capacity, is required for the execution and delivery of,
or the carrying out by, the Owner Trustee in its individual capacity
or as Owner Trustee, as the case may be, of any of the transactions
contemplated by the Owner Trustee Documents, other than any such
consent, approval, order, authorization, registration, notice or
action as has been duly obtained, given or taken.
10. There are no fees, taxes or other charges payable by the
Owner Trustee, the Trust Estate or the trust created by the Trust
Agreement imposed by the State of Connecticut or any political
subdivision or taxing authority thereof in connection with the
execution, delivery and performance by State Street, individually or
as Owner Trustee, of the Owner Trust Documents (other than franchise
or other taxes based on or measured by any fees or compensation
received by State Street, acting as the Owner Trustee, for services
rendered in connection with the transactions contemplated by the
Operative Agreements) and, assuming that the trust created by the
Trust Agreement will not be taxable as a corporation, but, rather,
will be characterized as a grantor trust under subpart E, Part I of
Subchapter J of the Internal Revenue Code of 1986, as amended, or
will be otherwise ignored for Federal tax purposes, (i) such trust
will not be subject to any fees, taxes or other charges imposed by
the State of Connecticut or any political subdivision thereof based
on income, receipts, value or otherwise, (ii) Holders that are not
residents of or otherwise subject to tax in Connecticut will not be
subject to any taxes imposed by the State of Connecticut or any
political subdivision thereof as a result of purchasing, holding
(including receiving payments with respect to) or selling a
Certificate and (iii) assuming the Owner Participant is not a
Connecticut resident or otherwise subject to tax in Connecticut and
further assuming that the assets of the trust created by the Trust
Agreement are not deemed to be located in Connecticut, the Owner
Participant will not be subject to any taxes imposed by the State of
Connecticut or any political subdivision thereof solely as a result
of being the beneficial owner of the trust created by the Trust
Agreement.
11. The Owner Trustee has received such title to the Aircraft
as has been conveyed to it subject to the rights of the Owner Trustee
and the Lessee under the Lease and the security interest created
pursuant to the Indenture and the Lease; and to our knowledge, there
exist no liens or encumbrances affecting the right, title and
interest of the Owner Trustee in and to the Trust Estate resulting
from claims against State Street not related to the ownership of the
Trust Estate or any other transaction contemplated by the Operative
Agreements.
12. All the properties which are part of the Indenture Estate
(including all right, title and interest of the Owner Trustee pledged
and mortgaged by it pursuant to the Indenture) have been pledged and
mortgaged with the Indenture Trustee as part of the Indenture Estate,
and the beneficial interest of the Owner Participant under the Trust
Agreement in and to such properties is subject, to the extent
provided in the Indenture, to the liens of the Indenture in favor of
the holders from time to time of the Certificate.
13. Neither a Connecticut court nor a Federal court applying
federal law or Connecticut law, if properly presented with the issue
and after having properly considered such issue, would permit the
Owner Participant to terminate the Trust Agreement, except as
otherwise provided therein, until the Lien of the Indenture on the
Indenture Estate has been released and until payment in full of the
principal of, and premium, if any, and interest on, the Certificates
and all other sums due the holders of the Certificates has been made.
14. Under the laws of the State of Connecticut, as long as the
Trust Agreement has not been terminated in accordance with its terms,
creditors of any person that is an Owner Participant, holders of a
lien against the assets of any such person and representatives of
creditors of any such person, such as trustees, receivers or
liquidators (whether or not any insolvency proceeding has been
commenced) (collectively the "Creditors") may acquire legal, valid
and enforceable claims and liens, as to the Trust Estate, only
against the beneficial interest of such person in the Trust Estate,
and do not have, and may not through the enforcement of such
Creditors' rights acquire, any other legal, valid, and enforceable
claim or lien against the Trust Estate.
Very truly yours,
Bingham, Dana & Gould LLP
SCHEDULE A
Lessee
Federal Express Corporation
2007 Corporate Avenue
Memphis, Tennessee 38132
Owner Trustee
State Street Bank and Trust Company
of Connecticut, National Association
Two International Place
4th Floor
Boston, Massachusetts 02110
Indenture Trustee, Pass Through Trustee & Subordination Agent
First Security Bank, National Association
79 South Main Street
Salt Lake City, Utah 84111
Owner Participant
PMCC Leasing Corporation
200 First Stamford Place
Stamford, Connecticut 06902
Underwriters
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
First Chicago Capital Markets, Inc.
Corporate Securities
One First National Plaza
Chicago, Illinois 60670
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
J.P. Morgan & Co.
60 Wall Street
New York, New York 10260
Liquidity Provider
Kredietbank N.V., New York Branch
125 West 55th Street
New York, New York 10019
EXHIBIT A(5)
[Letterhead of Ray, Quinney & Nebeker]
[Certificate Closing Date]
To the Persons Listed in Schedule A Attached Hereto
Re: Federal Express Corporation Trust No. N674FE
Ladies and Gentlemen:
We have acted as special counsel to First Security Bank,
National Association, a national banking association ("First Security"), in
connection with the Pass Through Trust Agreement dated as of May 1, 1997
(the "Pass Through Trust Agreement"), as supplemented by the Series
Supplements dated the date hereof between Federal Express Corporation and
the First Security, not in its individual capacity, except as otherwise
stated, but solely as Pass Through Trustee, designated as Series Supplement
1997-1-A, 1997-1-B and 1997-1-C, respectively (the "Series Supplements")
and the Participation Agreement (Federal Express Corporation Trust No.
N674FE), dated as of May 1, 1997 (the "Participation Agreement"), among
Federal Express Corporation, as Lessee, PMCC Leasing Corporation, as Owner
Participant, State Street Bank and Trust Company of Connecticut, National
Association, not in its individual capacity, except as otherwise stated,
but solely as Owner Trustee, and First Security, not in its individual
capacity, except as otherwise stated, but solely as Indenture Trustee, Pass
Through Trustee and Subordination Agent. Pursuant to the Participation
Agreement, one Airbus A300F4-605R aircraft bearing U.S. Registration No.
N674FE (the "Aircraft") is being financed. This opinion is furnished
pursuant to Section 4.01(k)(iv) of the Participation Agreement.
Capitalized terms used herein and not otherwise defined are used as defined
in the Participation Agreement, except that references herein to any
instrument shall mean such instrument as in effect on the date hereof.
We have examined executed counterparts or copies otherwise
identified to our satisfaction of the following documents:
(a) The Pass Through Trust Agreement;
(b) The Series Supplements;
(c) The Pass Through Certificates;
(d) The Participation Agreement;
(e) The Intercreditor Agreement; and
(f) Each Liquidity Facility.
(each of the documents identified in paragraphs (a) through (e) are being
collectively referred to as the "Pass Through Trustee Documents" and each of
the documents identified in paragraphs (d) through (f) are being collectively
referred to as the "Subordination Agent Documents").
We have also examined originals or copies of such other
documents, such corporate records, certificates and other statements of
governmental officials and corporate officers and other representatives of the
corporations or entities referred to herein and such other instruments as we
have deemed necessary or appropriate for the purposes of this opinion.
Moreover, as to certain facts material to the opinions expressed herein, we
have relied upon representations and warranties contained in the Pass Through
Trustee Documents or the Subordination Agent Documents, as the case may be.
Based upon the foregoing and upon an examination of such
questions of law as we have considered necessary or appropriate, and subject
to the assumptions, exceptions and qualifications set forth below, we advise
you that, in our opinion:
With respect to the opinions set forth in paragraph 8 above,
with your permission we have relied upon, and this opinion is limited by, the
assumptions set forth in the discussion entitled "Certain Utah Taxes" in the
Prospectus Supplement to the Prospectus forming part of Registration Number
No. 333-07691 (the "Registration Statement") for the registration of the Pass
Through Certificates with the Securities and Exchange Commission. We express
no opinion as to the correctness of the foregoing assumptions and we have
conducted no independent investigation in this regard.
1. First Security is a national banking association duly
organized and validly existing under the laws of the United States of
America holding a valid certificate to do business as a national
banking association, with banking and trust powers.
2. Each of First Security, the Pass Through Trustee and the
Subordination Agent, as the case may be, has or had, on the date of
execution thereof, full corporate power, authority and legal right to
execute, deliver and perform each of the Pass Through Trustee
Documents and the Subordination Agent Documents, as the case may be,
and to authenticate the Pass Through Certificates delivered on the
Certificate Closing Date.
3. Each of First Security, the Pass Through Trustee and the
Subordination Agent has duly authorized, executed and delivered each
Pass Through Trustee Document or Subordination Agent Document, as the
case may be; each such document constitutes a legal, valid and
binding obligation of the Pass Through Trustee or the Subordination
Agent, as the case may be (and, to the extent set forth in the
respective Pass Through Trustee Document or Subordination Agent
Document, of First Security) enforceable against the Pass Through
Trustee or the Subordination Agent, as the case may be (and, to the
extent set forth in the respective Pass Through Trustee Document or
Subordination Agent Document, against First Security) in accordance
with its terms.
4. The Pass Through Certificates issued and dated the
Certificate Closing Date have been duly authorized and validly
executed, issued, delivered and authenticated by the Pass Through
Trustee pursuant to the Pass Through Trust Agreement and the Series
Supplements; and the Pass Through Certificates acquired by the
Underwriters under the Underwriting Agreement are enforceable against
the Pass Through Trustee and are entitled to the benefits of the
related Pass Through Trust Agreement and the related Series
Supplements.
5. No order, license, consent, permit, authorization or
approval of or exemption by, and no notice to or filing with, or the
taking of any other action in respect of, any Utah or Federal
governmental authority governing the banking or trust powers of First
Security, the Pass Through Trustee or the Subordination Agent, and no
filing, recording, publication or registration in any public office
is required under Utah or Federal law pertaining to its banking or
trust powers for the due execution, delivery or performance by First
Security, individually or as Pass Through Trustee or Subordination
Agent, as the case may be, of the Pass Through Trustee Documents
(other than the Pass Through Trust Agreement) or the Subordination
Agent Documents, as the case may be, and of the certificate of
authentication, as Pass Through Trustee, on the Pass Through
Certificates, or for the legality, validity, binding effect or
enforceability thereof against First Security, the Pass Through
Trustee or the Subordination Agent, as the case may be.
6. The execution, delivery and performance by the Pass
Through Trustee or First Security, as the case may be, of each of
the Pass Through Documents and the Subordination Agent or First
Security, as the case may be, of each of the Subordination Agent
Documents, and the issuance, execution, delivery and performance
of the Pass Through Certificates by the Pass Through Trustee are
not or were not, on the date of execution thereof, in violation of
the charter or by-laws of First Security or of any law,
governmental rule, or regulation of the State of Utah or the
United States of America governing the banking or trust powers of
First Security or, to our knowledge, of any indenture, mortgage,
bank credit agreement, note or bond purchase agreement, long-term
lease, license or other agreement or instrument to which it is a
party or by which it is bound or, to our knowledge, of any
judgment or order of the State of Utah or the United States of
America relating to the banking or trust powers of First Security.
7. There are no actions, suits, investigations or
proceedings pending or, to our knowledge, threatened against or
affecting First Security, the Pass Through Trustee or the
Subordination Agent or any of its properties in any court or
before any administrative agency or arbitrator, which, if
adversely determined, would materially adversely affect the
ability of First Security, the Pass Through Trustee or the
Subordination Agent, as the case may be, to perform its
obligations under any of the Pass Through Trustee Documents or the
Subordination Agent Documents, as the case may be, and there are
no pending or, to our knowledge, threatened actions or proceedings
before any court, administrative agency or tribunal involving
First Security, the Pass Through Trustee or the Subordination
Agent in connection with the transactions contemplated by any of
the Pass Through Trustee Documents or the Subordination Agent
Documents, as the case may be.
8. Neither the trusts created by the Pass Through Trust
Agreement and the Series Supplements nor the Pass Through Trustee,
in its individual or trust capacity, as the case may be, nor their
respective Affiliates, successors or assigns, will be subject to
any tax (including, without limitation, net or gross income,
tangible or intangible property, net worth, capital, franchise or
doing business tax), fee or other governmental charge under the
laws of the State of Utah or any political subdivision thereof
(other than taxes imposed on the fees received by State Street
Bank and Trust Company for acting as Pass Through Trustee under
the Series Supplements). Certificate holders who are not
residents of or otherwise subject to tax in Utah will not be
subject to any tax (including, without limitation, net or gross
income, tangible or intangible property, net worth, capital,
franchise or doing business tax), fee or other governmental charge
under the laws of the State of Utah or any political subdivision
thereof as a result of purchasing, owning (including receiving
payments with respect to) or selling a Pass Through Certificate.
There are no applicable taxes under the laws of the State of Utah
or any political subdivision thereof upon or with respect to (a)
the construction, mortgaging, financing, refinancing, purchase,
acquisition, acceptance, rejection, delivery, nondelivery,
transport, location, ownership, insurance, control, assembly,
possession, repossession, operation, use, condition, maintenance,
repair, sale, return, abandonment, replacement, preparation,
installation, storage, redelivery, manufacture, leasing,
subleasing, modification, rebuilding, importation, transfer of
title, transfer of registration, exportation or other application
or disposition of the Aircraft or any interest in any thereof, (b)
payments of Rent or other receipts, income or earnings arising
therefrom or received with respect to the Aircraft or any interest
in any thereof or payable pursuant to the Lease, (c) any amount
paid or payable pursuant to any Operative Agreements, (d) the
Aircraft or any interest therein or the applicability of the Lease
to the Aircraft or any interest in any thereof, (e) any or all of
the Operative Agreements, any or all of the Pass Through
Certificates or any interest in any or all thereof or the
offering, registration, reregistration, issuance, acquisition,
modification, assumption, reissuance, refinancing or refunding of
any or all thereof, and any other documents contemplated thereby
and amendments or supplements hereto and thereto, (f) the payment
of the principal of, or interest or premium on, or other amounts
payable with respect to, any or all of the Pass Through
Certificates, whether as originally issued or pursuant to any
refinancing, refunding, assumption, modification or reissuance, or
any other obligation evidencing any loan in replacement of the
loan evidenced by any or all of the Pass Through Certificates, or
(g) otherwise with respect to or in connection with the
transactions contemplated by the Pass Through Trust Agreement, the
Series Supplements, the Pass Through Certificates and the
Operative Agreements, which would not have been imposed if the
Pass Through Trustee had not had its principal place of business
in, had not performed (either in its individual capacity or as
Pass Through Trustee) any or all of its administrative duties
under the Pass Through Trust Agreement, the Series Supplements,
the Pass Through Certificates and the Operative Agreements in, and
had not engaged in any activities unrelated to the transactions
contemplated by the Pass Through Trust Agreement, the Series
Supplements, the Pass Through Certificates and the Operative
Agreements in, the State of Utah.
9. Each of the Certificates to be delivered to and registered
in the name of the Subordination Agent on the date hereof pursuant to
the Participation Agreement and the Intercreditor Agreement will be
held by the Subordination Agent in trust for the Pass Through Trustee
under the applicable Pass Through Trust Agreement.
Very truly yours,
Ray, Quinney & Nebeker
SCHEDULE A
Lessee
Federal Express Corporation
2007 Corporate Avenue
Memphis, Tennessee 38132
Owner Trustee
State Street Bank and Trust Company
of Connecticut, National Association
Two International Place
4th Floor
Boston, Massachusetts 02110
Indenture Trustee, Pass Through Trustee & Subordination Agent
First Security Bank, National Association
79 South Main Street
Salt Lake City, Utah 84111
Owner Participant
PMCC Leasing Corporation
200 First Stamford Place
Stamford, Connecticut 06902
Underwriters
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
First Chicago Capital Markets, Inc.
Corporate Securities
One First National Plaza
Chicago, Illinois 60670
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
J.P. Morgan & Co.
60 Wall Street
New York, New York 10260
Liquidity Provider
Kredietbank N.V., New York Branch
125 West 55th Street
New York, New York 10019
EXHIBIT A(6)(a)
[Letterhead of Kredietbank N.V.]
[Certificate Closing Date]
To Each of the Parties named on Schedule A Hereto
Re: Federal Express Corporation 1997-1
Enhanced Pass Through Certificates
Ladies and Gentlemen:
I am the manager of the Legal Department of Kredietbank N.V.
("Kredietbank") and have advised Kredietbank and its New York Branch (the
"Branch") in connection with (i) the Irrevocable Revolving Credit Agreement
Class A Certificates, dated as of May 1, 1997 (the "Class A Liquidity
Agreement"), between the Branch and First Security Bank, National
Association, a national banking association, as Subordination Agent under
the Intercreditor Agreement, defined below, and as agent and trustee for
the Federal Express Corporation Pass Through Trust 1997-1-A, (ii) the
Irrevocable Revolving Credit Agreement Class B Certificates, dated as of
May 1, 1997 (the "Class B Liquidity Agreement"), between the Branch and
First Security Bank, National Association, a national banking association,
as Subordination Agent under the Intercreditor Agreement, defined below,
and as agent and trustee for the Federal Express Corporation Pass Through
Trust 1997-1-B (the "Intercreditor Agreement" and, together with the
Liquidity Agreements, the "Liquidity Documents"), and (iii) the
Intercreditor Agreement, dated as of May 1, 1997 (the "Intercreditor
Agreement"), among the Branch, First Security Bank, National Association,
as Pass Through Trustee and as Subordination Agent (the Liquidity
Agreements and the Intercreditor Agreement are hereinafter collectively the
"Liquidity Documents").
Capitalized terms herein which are undefined have the meanings
assigned to them in the Liquidity Documents.
I am rendering this opinion in my capacity as manager of the
Legal Department and without being personally liable to any extent for the
opinions expressed herein.
In connection with the opinions hereinafter given, I have
examined a copy of each of the Liquidity Documents and such other
certificates, documents, agreements and instruments as I have deemed
necessary as a basis for the opinions expressed below.
In such examination, I have assumed the genuineness of all
signatures, the authenticity of all agreements, certificates, instruments and
documents submitted to me as originals, and the conformity to the originals of
all agreements, certificates, instruments and documents submitted to me as
copies. As to questions of fact material to the opinions expressed below, I
have, when relevant facts were not independently established by me, examined
and relied upon representations of officers of Kredietbank.
Based upon the foregoing examination and assumptions, and
subject to the qualifications set forth below, I am of the opinion that:
1. Kredietbank is duly organized and validly existing as a
Belgian public law banking institution under the law of Belgium and
has full power and authority (corporate and otherwise) to execute,
deliver and perform the Liquidity Documents.
2. [Tod Angus] or [Robert Snauffer], acting together with
[Jean Glasgow], if acting for and on behalf of the Branch, are
duly authorized by Kredietbank to execute and deliver the
Liquidity Documents for and on behalf of the Branch. Assuming
each of the Liquidity Documents has been duly executed and
delivered for and on behalf of the Branch by such persons, no
further authorization by or any corporate action of Kredietbank is
required in connection with the execution, delivery and
performance thereof.
3. The governing-law clause, subjecting the Liquidity
Documents to New York law, is valid under Belgian law.
(i) Under Belgian law, New York law will be applied to an
agreement, such as the Liquidity Documents, which under Belgian
law has been validly subjected to New York laws.
(ii) (a) None of the terms of the Liquidity Documents
is irreconcilable with important principles of Belgian law,
and (b) there are no mandatory provisions of Belgian law
which must be applied to the transactions covered by the
Liquidity Documents.
(iii) Each of the Liquidity Documents constitutes the
legal, valid and binding obligation of Kredietbank,
enforceable against Kredietbank in accordance with its
terms, the rules of civil procedures of Belgium and the
applicable provisions of the chosen law of New York.
4. No authorization, consent, approval or other action by,
and no notice to or filing with, any governmental, administrative
or other authority or court of Belgium is required for the
execution or delivery of the Liquidity Documents by Kredietbank
through the Branch or for the performance by Kredietbank or by the
Branch of the Liquidity Documents.
5. The execution, delivery and performance of the Liquidity
Documents by Kredietbank or the Branch will not result in any
violation by Kredietbank or by the Branch of any law of Belgium.
6. The contractual obligations incurred by virtue of the
execution and delivery of the Liquidity Documents for and on behalf
of the Branch are the obligations of Kredietbank, and Kredietbank has
no defenses against the performance of such obligations which are
based on the fact that Kredietbank had acted through the Branch in
executing and delivering the Liquidity Documents.
7. If a final and conclusive judgment of the Supreme Court of
the State of New York, New York County, or of the Untied States
District Court for the Southern District of New York for a definite
sum for the recovery of amounts due and unpaid under the Liquidity
Documents were to be rendered against Kredietbank, a reexamination or
relitigation on the merits of the subject matter thereof in
accordance with Article 570 of the Belgian Judicial Code would be
necessary in order to obtain recognition and/or enforcement of such
judgment in Belgium.
8. The obligations of Kredietbank under the Liquidity
Documents rank at least equal in priority of payment and in all
other respects with its obligations to pay any other unsecured and
unsubordinated obligations of Kredietbank for borrowed money,
including deposit liabilities, that are not expressly preferred by
law.
The foregoing opinions are subject to the following
qualifications:
(i) The opinion in paragraph (3) with respect to
enforceability is subject to the effect of any bankruptcy,
insolvency, reorganization, moratorium, liquidation or similar
laws affecting creditors' rights generally, applicable to
Kredietbank and to any law or general principle of law from
time to time in effect in Belgium that could be considered by
the Belgian Courts as a provision of public policy.
(ii) In giving the opinions in paragraphs (3)(iii), (6) and
(8), I have assumed, with your consent, that each of the
Liquidity Documents is legal, valid and binding under New York
law, all as set forth more fully in the opinion dated of even
date herewith of Milbank, Tweed, Hadley & McCloy issued in
connection with the Liquidity Documents.
(iii) No opinion is expressed with respect to the law of any
jurisdiction other than the law of Belgium.
This opinion is being furnished to you solely for your benefit
in connection with the transactions described above and may not be used,
circulated, quoted or otherwise referred to for any other purpose without my
express written consent.
Very truly yours,
SCHEDULE A
Lessee
Federal Express Corporation
2007 Corporate Avenue
Memphis, Tennessee 38132
Indenture Trustee, Pass Through Trustee & Subordination Agent
First Security Bank, National Association
79 South Main Street
Salt Lake City, Utah 84111
Underwriters
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
First Chicago Capital Markets, Inc.
Corporate Securities
One First National Plaza
Chicago, Illinois 60670
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
J.P. Morgan & Co.
60 Wall Street
New York, New York 10260
EXHIBIT A(6)(b)
[Letterhead of Milbank, Tweed, Hadley & McCloy]
[Certificate Closing Date]
To Each of the Parties named on Schedule A Hereto
Re: Federal Express Corporation 1997-1
Enhanced Pass Through Certificates
Ladies and Gentlemen:
We have acted as special New York counsel to Kredietbank
N.V., New York Branch (herein called the "Liquidity Provider") in
connection with the transactions contemplated by (i) the Irrevocable
Revolving Credit Agreement Class A Certificates, dated as of May 1, 1997
(the "Class A Liquidity Agreement"), between the Liquidity Provider and
First Security Bank, National Association, as Subordination Agent under the
Intercreditor Agreement, as defined below, as agent and trustee for the
Federal Express Corporation 1997-1-A Pass Through Trust, (ii) the
Irrevocable Revolving Credit Agreement Class B Certificates, dated as of
May 1, 1997 (the "Class B Liquidity Agreement" and, together with the Class
A Liquidity Agreement, the "Liquidity Agreements"), between the Liquidity
Provider and First Security Bank, National Association, as Subordination
Agent under the Intercreditor Agreement, as defined below, as agent and
trustee for the Federal Express Corporation 1997-1-B Pass Through Trust,
and (iii) the Intercreditor Agreement, dated as of May 1, 1997 (the
"Intercreditor Agreement" and, together with the Liquidity Agreements, the
"Liquidity Documents"), among the Liquidity Provider and First Security
Bank, National Association, as Pass Through Trustee and as Subordination
Agent. Capitalized terms used herein but not otherwise defined herein
shall have the meanings provided in the Liquidity Documents.
In rendering the opinion expressed below, we have examined
the Liquidity Documents, the opinion dated the date hereof of Wilfred
Kupers, Esq., manager of the Legal Department of Kredietbank N.V., and such
other documents as we have deemed necessary.
In our examination, we have assumed the authenticity of all
documents submitted to us as originals and the conformity with authentic
original documents of all documents submitted to us as copies. When relevant
facts were not independently established, we have relied upon representations
made in or pursuant to the Liquidity Documents.
In rendering the opinion expressed below, we have assumed, with
respect to each Liquidity Document, that:
(i) it has been duly authorized by, has been duly executed and
delivered by, and (except to the extent set forth in the
opinion below as to the Liquidity Provider) constitutes
legal, valid, binding and enforceable obligations of all of
the parties thereto;
(ii) all signatories thereto have been duly authorized; and
(iii) all of the parties thereto are duly organized and validly
existing and have the power and authority (corporate,
partnership, trust or other) to execute, deliver and perform
thereunder.
Based upon and subject to the foregoing and subject also to
the comments and qualifications set forth below, and having considered such
questions of law as we have deemed necessary as a basis for the opinion
expressed below, we are of the opinion that each Liquidity Document
constitutes the legal, valid and binding obligation of the Liquidity
Provider, enforceable against the Liquidity Provider in accordance with its
terms, except as may be limited by bankruptcy, insolvency, reorganization,
moratorium, fraudulent conveyance or transfer or other similar laws
relating to or affecting the rights of creditors generally and except as
the enforceability of such Liquidity Document is subject to the application
of general principles of equity (regardless of whether considered in a
proceeding in equity or at law), including, without limitation, (a) the
possible unavailability of specific performance, injunctive relief or any
other equitable remedy and (b) concepts of materiality, reasonableness,
good faith and fair dealing.
The foregoing opinion is subject to the following comments and
qualifications:
(A) The enforceability of provisions in the Liquidity
Documents to the effect that terms may not be waived or modified
except in writing may be limited under certain circumstances.
(B) We express no opinion as to (i) the effect of the laws of
any jurisdiction in which the Liquidity Provider is located (other
than New York) that limit the interest, fees or other charges the
Liquidity Provider may impose for the loan or use of money or other
credit, (ii) Section 7.11(a)(i) of each Liquidity Agreement and
Section 10.11(a)(i) of the Intercreditor Agreement, insofar as such
Sections relate to the subject matter jurisdiction of a Federal court
sitting in New York, New York to adjudicate any controversy related
to the Liquidity Documents, (iii) the waiver of inconvenient forum
set forth in Section 7.11(a)(ii) of each Liquidity Agreement and
Section 10.11(a)(ii) of the Intercreditor Agreement with respect to
proceedings in a Federal court sitting in New York, New York and a
State court of the State of New York and (iv) the waiver of immunity
set forth in Section 10.11(c) of the Intercreditor Agreement with
respect to proceedings in a Federal court sitting in New York, New
York and a State court of the State of New York.
The foregoing opinion is limited to matters involving the
Federal laws of the United States of America and the law of the State of
New York, and we do not express any opinion as to the laws of any other
jurisdiction. In particular, we do not express any opinion as to the laws
of Belgium and, to the extent such laws may be relevant to the opinion
expressed herein, we have, with your permission, relied upon the
aforementioned opinion of Wilfred Kupers, Esq., manager of the Legal
Department of Kredietbank N.V., without independently considering the
matters covered thereby, and our opinion is subject to all limitations,
exceptions and qualifications contained therein as if set forth herein in
full.
At the request of the Liquidity Provider, this opinion letter is
provided to you by us in our capacity as special New York counsel to the
Liquidity Provider, and this opinion letter may not be relied upon by any
Person for any purpose other than in connection with the transactions
contemplated by the Liquidity Documents without, in each instance, our prior
written consent.
Very truly yours,
SCHEDULE A
Lessee
Federal Express Corporation
2007 Corporate Avenue
Memphis, Tennessee 38132
Indenture Trustee, Pass Through Trustee & Subordination Agent
First Security Bank, National Association
79 South Main Street
Salt Lake City, Utah 84111
Underwriters
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
First Chicago Capital Markets, Inc.
Corporate Securities
One First National Plaza
Chicago, Illinois 60670
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
J.P. Morgan & Co.
60 Wall Street
New York, New York 10260
Liquidity Provider
Kredietbank N.V., New York Branch
125 West 55th Street
New York, New York 10019
EXHIBIT A(7)
[Letter of General Electric Company]
[Delivery Date]
To Each of the Parties named on Schedule A Hereto
Re: Federal Express Corporation Trust No. N674FE
Reference is made to (i) that certain Participation Agreement
(Federal Express Corporation Trust No. N674FE), dated as of May 1, 1997
(the "Participation Agreement") by and among Federal Express Corporation,
as Lessee ("Fed Ex"), PMCC Leasing Corporation, as Owner Participant, State
Street Bank and Trust Company of Connecticut, National Association ("SSB")
(not in its individual capacity, except as otherwise expressly set forth
therein, but solely as Owner Trustee), First Security Bank, National
Association ("FSB") (not in its individual capacity, except as otherwise
expressly set forth therein, but solely as Indenture Trustee, Pass Through
Trustee and Subordination Agent); (ii) that certain Purchase Agreement
Assignment (Federal Express Corporation Trust No. N674FE), dated as of May
1, 1997 (the "Purchase Agreement Assignment") between Fed Ex, as Lessee and
SSB, as Lessor; (iii) that certain Lease Agreement (Federal Express
Corporation Trust No. N674FE), dated as of May 1, 1997 (the "Lease")
between SSB (not in its individual capacity, but solely as Owner Trustee),
as Lessor and Fed Ex, as Lessee; (iv) that certain Trust Indenture and
Security Agreement (Federal Express Corporation Trust No. N674FE), dated
as of May 1, 1997 (the "Trust Indenture") between SSB (not in its
individual capacity), as Owner Trustee and FSB (not in its individual
capacity), as Indenture Trustee; and (v) that certain Trust Agreement
(Federal Express Corporation Trust No. N674FE), dated as of May 1, 1997
(the "Trust Agreement") between SSB (not in its individual capacity), as
Owner Trustee and PMCC Leasing Corporation, as Trustor.
I am an attorney employed by General Electric Company, a New York
corporation (the "Engine Manufacturer") and as such have acted as counsel
for the Engine Manufacturer in connection with the execution and delivery
by the Engine Manufacturer of the Consent (the "Consent"), and the Engine
Warranty Assignment (Federal Express Corporation Trust No. N674FE) (the
"Engine Warranty Assignment"), each attached to the Participation Agreement
as Exhibit F and dated as of May 1, 1997. The Consent and the Engine
Warranty Assignment covers two GE CF6-80C2-A5F series engines bearing
Engine Manufacturer's serial numbers ___-___ and ___-___, respectively. In
this connection, I have, or an attorney under my supervision has, reviewed
such documents as I have deemed necessary for the purpose of this opinion,
including, but without limiting the generality of the foregoing, the
General Terms Agreement No. 6-9034, dated as of July 3, 1991 between the
Engine Manufacturer and Fed Ex (the "General Terms Agreement"), the Engine
Product Support Plan forming a part thereof (the "Engine Product Support
Plan"), the Participation Agreement, the Purchase Agreement Assignment, the
Lease, the Trust Indenture and the Trust Agreement.
In making such examinations, I have relied upon the accuracy of
original, certified, conformed, photocopied or telecopied copies of such
records, agreements, certificates and other documents as I have deemed
necessary or appropriate to enable me to render the opinions expressed
herein. In all such examinations, I have assumed the genuineness of
signatures on original documents and the conformity to such original
documents of all copies submitted to me as certified, conformed,
photocopied or telecopied copies, and as to certificates and telegraphic
and telephonic confirmations given by public officials, I have assumed the
same to have been properly given and to be accurate. As to various
questions of fact material to such opinions, I have relied, when such
relevant facts were not independently established by me, solely upon the
accuracy of the statements, representations and warranties made in the
Participation Agreement, the Purchase Agreement Assignment, the Lease, the
Trust Indenture and the Trust Agreement.
With your consent, and for the purposes of this opinion, I have
assumed (other than with respect to the Engine Manufacturer), the accuracy of
the following matters, but I have not made any independent investigation or
inquiry with respect thereto and I render no opinion on such matters:
(a) each of the Participation Agreement, the Purchase
Agreement Assignment, the Lease, the Trust Indenture, and the Trust
Agreement have been duly and validly authorized, executed and
delivered by all parties thereto and constitutes the legal, valid and
binding obligations of each of such parties in accordance with the
respective terms thereof; and
(b) the respective parties to the Participation Agreement,
the Purchase Agreement Assignment, the Lease, the Trust Indenture,
and the Trust Agreement have obtained, and there are in full force
and effect, any and all federal, state, local or foreign
governmental agencies and authorities in connection with the
transactions contemplated thereby, to the extent necessary for the
legality, validity and binding effect or enforceability of the
Consent and the Engine Warranty Assignment.
Based upon the foregoing, and subject to the specific assumptions,
qualifications and reliances herein set forth, and on the basis of my
consideration of such facts and law as I have deemed necessary for purposes of
this letter, it is my opinion that:
(1) The Engine Manufacturer has the full corporate power,
authority and the legal right to enter into and perform its
obligations under the General Terms Agreement, the Consent and the
Engine Warranty Assignment. The execution, delivery and
performance by the Engine Manufacturer of each of the General
Terms Agreement, the Consent and the Engine Warranty Assignment
was duly authorized by all necessary corporate action on the part
of the Engine Manufacturer.
(2) Each of the General Terms Agreement, the Consent and
Engine Warranty Assignment has been duly authorized, executed and
delivered by and constitutes a legal, valid and binding obligation of
the Engine Manufacturer, enforceable against the Engine Manufacturer
in accordance with the respective terms thereof, except as the
enforceability thereof may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting the
rights of creditors generally and by general equity principles.
(3) The Engine Product Support Plan insofar as it relates to
the Engine Warranties (as such term is defined in the Engine Warranty
Assignment), constitutes a legal, valid and binding obligation of the
Engine Manufacturer, enforceable against the Engine Manufacturer in
accordance with the terms thereof, except as the enforceability
thereof may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the rights of
creditors generally and by general equity principles.
The foregoing opinions are limited to the laws of the State
of New York and the federal laws of the United States of America, but no
opinion is expressed as to matters governed by the Transportation Code, or
by any other law, statute, rule or regulation of the United States relating
to the acquisition, ownership, registration, use, operation, maintenance,
repair, replacement or sale of aircraft. Further, no opinion is expressed
as to title to any engines or other property.
This opinion is furnished by me at your request for your
sole benefit and no other person or entity shall be entitled to rely on
this opinion without our express written consent. My opinion is limited to
the matters stated herein and no opinion is implied or may be inferred
beyond the matters expressly stated herein.
Very truly yours,
David L. Lloyd, Jr.
SCHEDULE A
Lessee
Federal Express Corporation
2007 Corporate Avenue
Memphis, Tennessee 38132
Owner Trustee
State Street Bank and Trust Company
of Connecticut, National Association
Two International Place
4th Floor
Boston, Massachusetts 02110
Indenture Trustee, Pass Through Trustee & Subordination Agent
First Security Bank, National Association
79 South Main Street
Salt Lake City, Utah 84111
Owner Participant
PMCC Leasing Corporation
200 First Stamford Place
Stamford, Connecticut 06902
Underwriters
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
First Chicago Capital Markets, Inc.
Corporate Securities
One First National Plaza
Chicago, Illinois 60670
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
J.P. Morgan & Co.
60 Wall Street
New York, New York 10260
Liquidity Provider
Kredietbank N.V., New York Branch
125 West 55th Street
New York, New York 10019
EXHIBIT A(8)
[Letterhead of Clifford Chance]
[Delivery Date]
To The Opinion Addressees referred to in Schedule A hereof
Re: Federal Express Corporation Trust No. N674FE
Ladies and Gentlemen:
We are special French counsel for Airbus Industrie G.I.E.
("Airbus") and AVSA S.A.R.L. ("AVSA") and you have asked for our opinion
in connection with certain transactions contemplated in the Participation
Agreement (Federal Express Corporation Trust No. N674FE), dated as of May
1, 1997 (the "Participation Agreement") among Federal Express Corporation,
as Lessee ("Federal Express"), PMCC Leasing Corporation, as Owner
Participant ("Owner Participant"), State Street Bank and Trust Company of
Connecticut, National Association, not in its individual capacity, except
as otherwise stated, but solely as Owner Trustee ("Owner Trustee"), First
Security Bank, National Association, not in its individual capacity, except
as otherwise stated, but solely as Indenture Trustee ("Indenture Trustee"),
Pass Through Trustee and Subordination Agent, and relating to the Aircraft
to be operated by Federal Express.
This opinion is being delivered pursuant to Section 4.02(m)(x)
of the Participation Agreement.
Capitalized terms used in this opinion and not otherwise
defined shall have the meaning assigned thereto in the Participation
Agreement.
We have examined:
(i) a copy of an Airbus A300-600R Freighter Purchase Agreement
dated as of July 3, 1991 and made between AVSA and Federal
Express with an executed Consent and Guaranty of Airbus of
same date attached thereto, sent to us by facsimile by
AINA Holdings Inc. ("AINA") on April 27, 1994;
(ii) a copy sent to us by facsimile by Davis Polk & Wardwell on
_________________ of an executed Purchase Agreement
Assignment dated as of May 1, 1997 (the "Purchase
Agreement Assignment") made between Federal Express and
the Owner Trustee;
(iii) a copy sent to us by facsimile by AVSA on _________________
of an executed but undated Airbus Industrie Consent and
Agreement to the Purchase Agreement Assignment;
(iv) a copy sent to us by facsimile by AVSA on _________________
of an executed but undated AVSA Consent and Agreement to
the Purchase Agreement Assignment;
(v) a copy sent to us by facsimile by AVSA on _________________
of an executed but undated Warranty Bill of Sale, relating
to the Aircraft and transferring title therein from AVSA
to the Owner Trustee ("AVSA Warranty Bill of Sale");
(vi) a copy sent to us by facsimile by AVSA on _________________
of an executed but undated Airbus Industrie G.I.E.
Warranty, in favour of the Participants (the "Airbus
Warranty") warranting AVSA's Warranty Bill of Sale;
(vii) a copy sent to us by facsimile by AVSA on _________________
of an undated FAA Bill of Sale executed by AVSA in favour
of the Owner Trustee;
(viii) a copy sent to us by facsimile by AVSA on May 3, 1995 of an
executed power of attorney dated September 1, 1994 appointing
Messrs. John Leahy and Michel Dechelotte, acting singly, as
attorneys-in-fact of Mr. Jean Pierson, Managing Director
("Administrateur Gerant") of Airbus;
(ix) a copy sent to us by facsimile by AVSA on September 15, 1995
of an executed power of attorney dated August 16, 1995
appointing J.C Mauries as attorney-in-fact of Mr. Jean
Pierson, Managing Director ("Administrateur Gerant") of
Airbus;
(x) a copy sent to us by facsimile by AVSA on September 15, 1995
of an executed power of attorney dated August 16, 1995
appointing Xavier de Rouville as attorney-in-fact of Mr.
Jean Pierson, Managing Director ("Administrateur Gerant")
of Airbus;
(xi) a copy sent to us by courier by AVSA on September 15, 1995 of
an executed power of attorney dated August 1, 1995
appointing Ms. Michele Lascaux and Mr. Etienne O. de
Coninck, acting singly, as attorneys-in-fact of Mr.
Christophe Mourey, Chief Executive Officer ("Gerant") of
AVSA; and
(xii) a copy sent to us by courier by AVSA on September 15, 1995
of an executed power of attorney dated August 1, 1995
appointing Ms. Marie-Pierre Merle-Beral and Michele
Lascaux, Messrs. Jacques Debeaulieu, Sylvain Lebeuf,
Philippe Martin, Rainer von Borstel and Alain Rochet,
acting singly, as attorneys-in-fact of Mr. Christophe
Mourey, Chief Executive Officer ("Gerant") of AVSA.
(the documents referred to in paragraphs (i) to (xii) being referred to herein
as the "Documents").
Based on the foregoing, and such other documents, records
and other instruments as we have deemed necessary or appropriate for the
purpose of this opinion, and assuming the Documents to have been duly
executed by the parties thereto (other than Airbus and AVSA), the
genuineness of all signatures and the completeness and conformity to the
originals of all documents supplied to us as copies or as facsimiles, we
are of the opinion that, subject to the qualifications set out below:
1. Airbus is a groupement d'interet economique duly organized and
existing under the laws of the French Republic, and has the
power and authority to carry on its business as now conducted.
The present members of Airbus are (i) Aerospatiale, Societe
Nationale Industrielle, (ii) Daimler-Benz Aerospace Airbus
GmbH, (iii) British Aerospace (Operations) Ltd. and (iv)
Construcciones Aeronauticas S.A., and each of such corporations
is, without the need to proceed against any collateral security
for the indebtedness of Airbus or to take any other legal
action or process (except for service on Airbus by huissier of
notice to perform and subsequent failure by Airbus to do so),
jointly and severally liable with the other members for the
debts of Airbus arising out of obligations contracted by Airbus
while such corporation is a member of Airbus.
2. AVSA is a societe a responsabilite limitee duly established
and existing under the laws of the French Republic and has
the power and authority to carry on its business as now
conducted.
3. Each of Airbus and AVSA has full power and authority to enter
into and to execute, deliver and perform its obligations under
those of the Documents to which it is a party; such obligations
are legal, valid and binding upon them respectively, are
enforceable in accordance with their respective terms and rank
pari passu with the other unsecured obligations of Airbus or
AVSA, as the case may be.
4. All actions, authorizations, approvals, consents, conditions
and things required at law to be taken, fulfilled and done
to authorize the execution, delivery and performance by
Airbus and AVSA of those of the Documents to which they
respectively are party have been taken, obtained, fulfilled
and done; and no consents under any exchange control, laws,
rules or regulations of the French Republic are necessary in
connection therewith.
5. Neither the execution and delivery and performance of the
Documents to which Airbus and AVSA respectively are a party,
nor the consummation of the transactions contemplated
thereby, contravenes or violates any law, governmental rule
or regulation applicable to or binding on Airbus or AVSA.
6. The choice of the laws of the State of New York to govern the
Documents (which are expressed to be so governed) is valid
under the laws of the French Republic, and a French court
would uphold such choice of law in any suit on the Documents
brought in a French court.
7. Under the laws of the French Republic, Airbus and AVSA are
subject to private commercial law and to suit, and neither
Airbus nor AVSA, nor their respective properties have any
immunity from the jurisdiction of any court or any legal
process (whether through service of notice, attachment prior to
notice, attachment prior to judgment, attachment in aid of
execution, execution or otherwise), except that:
(a) to the extent that Airbus or AVSA occupies or possesses
any property by virtue of any license or grant from the
French State, such property and the title of Airbus or
AVSA thereto may be immune from suit or execution on the
grounds of sovereignty, and
(b) suit and execution against Airbus and AVSA or their
respective property may be affected by action taken by
the French public authorities in the interests of
national defence or on the occurrence of exceptional
circumstances of paramount importance to the national
interest of France, as such concept is understood
under the Constitution, laws and regulations of
France.
8. No French value added tax is due upon the transfer of title of
the Aircraft from AVSA to State Street Bank and Trust
Company of Connecticut, National Association as Owner
Trustee.
9. In connection with the obligations of Airbus and AVSA under the
Documents, this opinion must be read subject to the following
qualifications and observations as to French law:
(a) the remedy of specific performance may not be available
in a French court;
(b) the enforcement against Airbus of any of the Documents to
which it is a party may be limited by applicable
bankruptcy, insolvency, arrangement, moratorium or
similar laws relating to or affecting the enforcement of
creditors' rights generally, as such laws are applied to
Airbus. The enforcement against AVSA of any of the
Documents to which it is a party may be limited by such
laws, as such laws are applied to AVSA. The enforcement
against any member of Airbus of any obligation of Airbus
contained in the Documents may be limited by such laws,
as such laws are applied to such member;
(c) in respect of payment obligations, a French court has
power under Article 1244-1 of the French Civil Code to
grant time to a debtor (not in excess of two years),
taking into account the position of the debtor and the
needs of the creditor;
(d) in order to ensure the validity as against third parties
of the assignment made in the Purchase Agreement
Assignment, it is necessary that notice of such
assignment be served on Airbus and AVSA by "huissier" in
accordance with the provisions of Article 1690 of the
French Civil Code;
(e) in the event of any proceedings being brought in a
French court in respect of a monetary obligation
expressed to be payable in a currency other than
French Francs, a French court would probably give
judgment expressed as an order to pay, not such
currency, but its French Franc equivalent at the time
of payment or enforcement of judgment. With respect
to a bankruptcy, insolvency, liquidation, moratorium,
reorganization, reconstruction or similar proceedings,
French law may require that all claims or debts be
converted into French Francs at an exchange rate
determined by the court at a date related thereto,
such as the date of commencement of a winding-up;
(f) a determination or certificate as to any matter provided
for in the Documents might be held by a French court not
to be final, conclusive or binding, if such determination
or certificate could be shown to have an unreasonable,
incorrect or arbitrary basis or not to have been given or
made in good faith;
(g) claims may become barred by effluxion of time or may be
or become subject to defence of set-off or
counterclaim;
(h) provisions in any Document providing that it or any
other Documents may be amended or varied or any
provision thereof waived only by an instrument in
writing may not be effective;
(i) a French court may stay proceedings if concurrent
proceedings are being brought elsewhere;
(j) we express no opinion as to whether any provision in the
Documents conferring a right of set-off or similar
right would be effective against a liquidator or a
creditor; and
(k) our opinion as to the enforceability of the Documents
relates only to their enforceability in France in
circumstances where the competent French court has and
accepts jurisdiction. The term "enforceability" refers
to the legal character of the obligations assumed by the
parties under the documents, i.e., that they are of a
character which French law enforces or recognizes. It
does not mean that the Documents will be enforced in all
circumstances or in foreign jurisdictions or by or
against third parties or that any particular remedy will
be available.
(l) Article 899 of the French Tax Code provides that
agreements evidencing an undertaking to pay a sum of
money are subject to stamp tax ("droit de timbre") of a
nominal amount if made in the French Republic, if made in
a foreign country, such agreements are subject to a stamp
tax of a nominal amount before certain use thereof can be
made in the French Republic (Article 897 of the French
Tax Code). However non-payment of such stamp tax does
not affect the legality, validity or enforceability of
the agreements.
In rendering the foregoing opinions, we have assumed that the
Documents (expressed to be governed by New York law) constitute the legal,
valid and binding obligations of the parties under New York law.
We are qualified as French Avocats.
No opinion is expressed herein as to laws other than the
laws of the French Republic as of the date hereof. This opinion is for
your use and that of no one else, and is limited to (i) the matters
specifically mentioned herein, and (ii) the purpose set out above.
Very truly yours,
Clifford Chance
SCHEDULE A
Lessee
Federal Express Corporation
2007 Corporate Avenue
Memphis, Tennessee 38132
Owner Trustee
State Street Bank and Trust Company
of Connecticut, National Association
Two International Place
4th Floor
Boston, Massachusetts 02110
Indenture Trustee, Pass Through Trustee & Subordination Agent
First Security Bank, National Association
79 South Main Street
Salt Lake City, Utah 84111
Owner Participant
PMCC Leasing Corporation
200 First Stamford Place
Stamford, Connecticut 06902
Underwriters
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
First Chicago Capital Markets, Inc.
Corporate Securities
One First National Plaza
Chicago, Illinois 60670
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
J.P. Morgan & Co.
60 Wall Street
New York, New York 10260
Liquidity Provider
Kredietbank N.V., New York Branch
125 West 55th Street
New York, New York 10019
EXHIBIT A(9)
[Letterhead of Daugherty, Fowler & Peregrin]
[Delivery Date]
To the Parties Named on Schedule A attached hereto
Re: Federal Express Corporation Trust No. N674FE
Ladies and Gentlemen:
This opinion is furnished to you pursuant to Section
4.02(d)(iii) of the Participation Agreement (Federal Express Corporation
Trust No. N674FE), dated as of May 1, 1997 (the "Participation Agreement")
among Federal Express Corporation, as Lessee (the "Lessee"), PMCC Leasing
Corporation, as Owner Participant (the "Owner Participant"), State Street
Bank and Trust Company of Connecticut, National Association, not in its
individual capacity, except as otherwise stated, but solely as Owner
Trustee ("Owner Trustee"), First Security Bank, National Association, not
in its individual capacity, except as otherwise stated, but solely as
Indenture Trustee ("Indenture Trustee"), Pass Through Trustee and
Subordination Agent, with respect to that portion of Subtitle VII of Title
49 of the United States Code relative to the recordation of instruments and
the registration of aircraft thereunder.
The capitalized terms herein shall, unless otherwise
defined, have the same meanings given them in the Participation Agreement
or in Annex I attached hereto.
We have examined and filed on this date with the Federal
Aviation Administration (the "FAA") the following described instruments at
the respective times listed below:
(a) AC Form 8050-2 Aircraft Bill of Sale dated
_____________ (the "FAA Bill of Sale") from AVSA, as
seller, conveying title to the Airframe to the Owner
Trustee, which FAA Bill of Sale was filed at ____
_.m., C._.T.;
(b) AC Form 8050-1 Aircraft Registration Application dated
_____________ (the "Aircraft Registration
Application") by the Owner Trustee, as applicant,
covering the Airframe, which Aircraft Registration
Application was filed at ____ _.m., C._.T.;
(c) Affidavit of the Owner Trustee dated _____________ (the
"Owner Trustee Affidavit") pursuant to Section
47.7(c)(2)(ii) of Part 47 of the Federal Aviation
Regulations together with Affidavit of the Owner
Participant dated _____________ (the "Owner
Participant Affidavit") attached thereto, which Owner
Trustee Affidavit with the Owner Participant Affidavit
attached was filed at ____ _.m., C._.T.;
(d) executed counterpart of Trust Agreement (Federal Express
Corporation Trust No. N674FE) dated as of May 1, 1997
(the "Trust Agreement") between the Owner Participant
and the Owner Trustee, which Trust Agreement was filed
at ____ _.m., C._.T.;
(e) executed counterpart of Trust Indenture and Security
Agreement (Federal Express Corporation Trust No.
N674FE) dated as of May 1, 1997 (the "Trust
Indenture") between the Owner Trustee and the
Indenture Trustee, with executed counterpart of
Indenture and Security Agreement Supplement No. 1
(Federal Express Corporation Trust No. N674FE) dated
_____________ (the "Trust Indenture Supplement") by
the Owner Trustee, covering the Aircraft, attached
thereto, which Trust Indenture with the Trust
Indenture Supplement attached was filed at ____ _.m.,
C._.T.; and,
(f) executed counterpart of Lease Agreement (Federal Express
Corporation Trust No. N674FE) dated as of May 1, 1997
(the "Lease") between the Owner Trustee, as lessor,
and the Lessee, with executed counterparts of the
following attached thereto: (i) Lease Supplement No.
1 (Federal Express Corporation Trust No. N674FE)
dated _____________ (the "Lease Supplement") between
the Owner Trustee, as lessor, and the Lessee, covering
the Aircraft; (ii) the Trust Indenture; and (iii) the
Trust Indenture Supplement, which Lease with the
foregoing attachments (collectively, the "Lease
Attachments") attached was filed at ____ _.m., C._.T.
The Confidential Omissions were intentionally omitted from
the FAA filing counterparts of the Lease and the Trust Indenture as
containing confidential financial information.
Based upon our examination of the above described
instruments and of such records of the FAA as we deemed necessary to render
this opinion, it is our opinion that:
1. the FAA Bill of Sale, the Trust Indenture with the Trust
Indenture Supplement attached and the Lease with the
Lease Attachments attached are in due form for
recordation by and have been duly filed for
recordation with the FAA pursuant to and in accordance
with the provisions of 49 U.S.C. Section 44107;
2. the Aircraft Registration Application, the Owner Trustee
Affidavit with the Owner Participant Affidavit
attached and the Trust Agreement are in due form for
filing and have been duly filed with the FAA pursuant
to and in accordance with the provisions of 49 U.S.C.
Section 44103(a) and Section 47.7(c) of the Federal
Aviation Regulations;
3. the Airframe is eligible for registration under 49 U.S.C.
Section 44102 in the name of the Owner Trustee and the
filing with the FAA of the FAA Bill of Sale, the
Aircraft Registration Application, the Owner Trustee
Affidavit with the Owner Participant Affidavit
attached and the Trust Agreement will cause the FAA to
register the Airframe, in due course, in the name of
the Owner Trustee and to issue to the Owner Trustee an
AC Form 8050-3 Certificate of Aircraft Registration
for the Airframe, and the Airframe will be duly
registered pursuant to and in accordance with the
provisions of 49 U.S.C. Section 44103(a);
4. the Owner Trustee has valid legal title to the Airframe
and the Aircraft is free and clear of all Liens,
except (i) the security interest created by the Trust
Indenture, as supplemented by the Trust Indenture
Supplement, and (ii) the rights of the parties under
the Lease, as supplemented by the Lease Supplement;
5. the rights of the Owner Trustee and the Lessee under the
Lease, as supplemented by the Lease Supplement, with
respect to the Aircraft, are perfected;
6. the Trust Indenture, as supplemented by the Trust
Indenture Supplement, constitutes a duly perfected
first priority security interest in the Aircraft and a
duly perfected first assignment of all the right,
title and interest of the Owner Trustee in, to and
under the Lease and the Lease Supplement (insofar as
such assignment affects an interest covered by the
recording system established by the FAA pursuant to 49
U.S.C. Section 44107), and no other registration of
the Airframe or filings other than filings with the
FAA (which have been duly effected) are necessary in
order to perfect in any applicable jurisdiction in the
United States (A) the Owner Trustee's title to the
Airframe or (B) such security interest and assignment
(insofar as such assignment affects an interest
covered by the recording system established by the FAA
pursuant to 49 U.S.C. Section 44107), it being
understood that no opinion is herein expressed as to
the validity, priority or enforceability of such
security interest and assignment under local law or as
to the recognition of the perfection of such security
interest and assignment as against third parties in
any legal proceeding outside the United States;
7. no authorization, approval, consent, license or order of,
or registration with, or the giving of notice to, the
FAA is required for the valid authorization, delivery
and performance of the Lease, as supplemented by the
Lease Supplement, the Trust Indenture, as supplemented
by the Trust Indenture Supplement, or the Trust
Agreement except for such filings as are referred to
above; and,
8. neither the execution and delivery by the Owner
Participant of the Participation Agreement or the
Trust Agreement, nor other consummation of the
transactions contemplated thereby by the Owner
Participant, requires the consent or approval of, or
the giving of notice to, or the registration of, or
the taking of any other action in respect of the FAA,
except (x) the registration of the Airframe, including
the submission of the Aircraft Registration
Application, the Owner Trustee Affidavit, the Owner
Participant Affidavit and the Trust Agreement to the
FAA and (y) the filings for recordation specified
elsewhere in this opinion.
No opinion is expressed as to the Airframe during any period
or periods of time during which it has not been subject to United States
registration.
No opinion is expressed as to laws other than Federal laws
of the United States. In rendering this opinion, we were subject to the
accuracy of the FAA, its employees and agents, in the filing, indexing and
recording of instruments filed with the FAA and in the search for
encumbrance cross-reference index cards for the Engines. Further, in
rendering this opinion we are assuming the validity and enforceability of
the above described instruments under local law. Since our examination was
limited to records maintained by the FAA, our opinion does not cover liens
which are perfected without the filing of notice thereof with the FAA, such
as federal tax liens, liens arising under Section 1368(a) of Title 29 of
the United States Code, possessory artisan's liens, or matters of which the
parties had actual notice. In rendering this opinion we are assuming that
there are no documents with respect to the Aircraft which have been filed
for recording under the recording system of the FAA but have not yet been
listed in the available records of such system as having been so filed.
In rendering this opinion we have relied upon the opinion of
the Assistant Chief Counsel of the Aeronautical Center dated _____________,
a copy of which is attached hereto.
Very truly yours,
Robert M. Peregrin
For the Firm
Annex I
Certain Definitions
Airframe, Engines and Aircraft
One (1) Airbus Industrie A300F4-605R aircraft bearing
manufacturer's serial number 777 and U.S. Registration No. N674FE (the
"Airframe") and two (2) General Electric CF6-80C2-A5F aircraft engines
bearing manufacturer's serial numbers ___-___ and ___-___ (the "Engines")
(the Airframe and the Engines are referred to collectively as the
"Aircraft").
Confidential Omissions
The Lease was filed with the FAA, with (i) the Basic Rent
(Schedule II), (ii) the Stipulated Loss Values (Schedule III), (iii) the
Termination Values (Schedule IV) and (iv) the Purchase Option Schedule
(Schedule V) omitted from the FAA filing counterpart thereof as containing
confidential financial information; and (v) the purchase price under Section
4.02(a)(F) set forth in Ancillary Agreement II, which was not attached to the
FAA filing counterpart of the Lease or otherwise filed with the FAA for
recordation.
SCHEDULE A
Lessee
Federal Express Corporation
2007 Corporate Avenue
Memphis, Tennessee 38132
Owner Trustee
State Street Bank and Trust Company
of Connecticut, National Association
Two International Place
4th Floor
Boston, Massachusetts 02110
Indenture Trustee, Pass Through Trustee & Subordination Agent
First Security Bank, National Association
79 South Main Street
Salt Lake City, Utah 84111
Owner Participant
PMCC Leasing Corporation
200 First Stamford Place
Stamford, Connecticut 06902
Underwriters
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
First Chicago Capital Markets, Inc.
Corporate Securities
One First National Plaza
Chicago, Illinois 60670
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
J.P. Morgan & Co.
60 Wall Street
New York, New York 10260
Liquidity Provider
Kredietbank N.V., New York Branch
125 West 55th Street
New York, New York 10019
EXHIBIT B
[FORM OF LEASE AGREEMENT]
[See Exhibit 4.e]
EXHIBIT C
[FORM OF INDENTURE]
[See Exhibit 4.b.1]
EXHIBIT D
[FORM OF TRUST AGREEMENT]
[See Exhibit 4.d]
EXHIBIT E
[FORM OF PURCHASE AGREEMENT ASSIGNMENT, AIRBUS CONSENT AND
AVSA CONSENT]
[See Exhibit B to Lease Agreement under Exhibit 4.e]
EXHIBIT F
[FORM OF ENGINE WARRANTY ASSIGNMENT AND ENGINE CONSENT]
[See Exhibit C to Lease Agreement under Exhibit 4.e]
EXHIBIT G-1
FORM OF ASSIGNMENT AND ASSUMPTION AGREEMENT
BENEFICIAL INTEREST TRANSFER AGREEMENT (this "Document"),
dated as of _______ __, ____, between ______________, a ______________
corporation ("Transferor") and ______________, a ______________ corporation
("Transferee").
W I T N E S S E T H :
WHEREAS, the parties hereto desire to effect (a) the
transfer by Transferor to Transferee of all of the rights, title and interest
of Transferor in and to its interest (the "Beneficial Interest") under the
Trust Agreement (Federal Express Corporation Trust No. N674FE), dated as of
May 1, 1997 (as heretofore amended, the "Trust Agreement"), between Transferor
and State Street Bank and Trust Company of Connecticut, National Association,
and the Lessor's Estate created thereunder, and all of Transferor's rights and
obligations under the Participation Agreement (Federal Express Corporation
Trust No. N674FE), dated as of May 1, 1997 (the "Participation Agreement"),
among Federal Express Corporation, as Lessee, State Street Bank and Trust
Company of Connecticut, National Association, not in its individual capacity,
except as otherwise stated therein, but solely as Owner Trustee, PMCC Leasing
Corporation, as Owner Participant, First Security Bank, National Association,
not in its individual capacity, except as otherwise stated therein, but solely
as Indenture Trustee, First Security Bank, National Association, not in its
individual capacity, except as otherwise stated therein, but solely as Pass
Through Trustee and First Security Bank, National Association, as
Subordination Agent, and under the other Operative Agreements and (b) the
acceptance by Transferee of such transfer and the assumption by Transferee of
such obligations of Transferor thereunder; and
WHEREAS, Section 7.03(d) of the Participation Agreement
permits such transfer and assumption upon satisfaction of certain conditions
heretofore or concurrently herewith being observed;
NOW, THEREFORE, in consideration of the premises and of
the mutual covenants and agreements herein contained, the parties hereto agree
as follows:
1. Definitions. Capitalized terms used herein without
definition shall have the respective meanings ascribed thereto in the
Participation Agreement.
2. Transfer. Transferor does hereby sell, convey,
assign, transfer and set over, unto Transferee, as of the Effective Time (as
defined below), all of Transferor's present and future right, title and
interest in and to (a) all of the Beneficial Interest and (b) all of the Owner
Participant's rights and obligations under the Participation Agreement, the
Tax Indemnity Agreement, the Trust Agreement and the other Operative
Agreements and any proceeds therefrom, together with all other documents and
instruments evidencing any of such right, title and interest, except such
rights of Transferor as have arisen or accrued to Transferor prior to the
Effective Time (including without limitation, the right to receive any amounts
due or accrued to Transferor under the Operative Agreements as of a time prior
to the Effective Time and the right to receive any indemnity payment pursuant
to the Participation Agreement or the Tax Indemnity Agreement, with respect to
events occurring prior to such time); all of the foregoing that is being
transferred under this paragraph 2, the "Transferred Interest".
3. Assumption. Transferee hereby accepts the transfer
of the Transferred Interest and, for the benefit of Transferor and the other
parties to the Participation Agreement, assumes and undertakes and agrees to
perform and discharge all of the duties and obligations of Transferor with
respect to the Transferred Interest whenever and wherever accrued (other than
duties and obligations of Transferor required to be performed by it on or
prior to the Effective Time). Transferee hereby confirms that, from and after
the Effective Time, Transferee (a) shall be deemed, to the extent set forth in
Section 2 hereof, the "Owner Participant" party to the Participation
Agreement, the Tax Indemnity Agreement, the Trust Agreement and the other
Operative Agreements and (b) shall be bound by all of the terms of the
Operative Agreements to the extent the same relate to the Transferred
Interest.
4. Release of Transferor. At the Effective Time,
Transferor shall be relieved of all of its duties and obligations with respect
to the Transferred Interest under the Operative Agreements, provided, however,
that Transferor shall in no event be released from any such duty or
obligations arising or relating to any event occurring prior to the Effective
Time, or on account of any breach by Transferor of any of its representations,
warranties, covenants or obligations set forth in the Operative Agreements, or
for any fraudulent or willful misconduct engaged in by it prior to the
Effective Time, or from any obligation that relates to any indemnity claimed
by Transferor or any Lessor's Lien attributable to Transferor.
5. Fees and Expenses. The fees, expenses and charges
of the parties to the Participation Agreement incurred in connection with the
transfer effected hereby shall be for the account of [specify
Transferor/Transferee].
6. Payments. Transferor hereby covenants and agrees
to pay over to Transferee, if and when received following the Effective
Time, any amounts (including any sums payable as interest in respect
thereof) paid on account of the Transferred Interest to or for the benefit
of Transferor, and Transferee hereby covenants and agrees to pay over to
Transferor, if and when received following the Effective Time, any amounts
(including any sums payable as interest in respect thereof) paid to or for
the benefit of Transferee that are not attributable to the Transferred
Interest and to which Transferor is otherwise entitled.
7. Investment Purpose. Transferee hereby represents
and warrants that, as of the date hereof, it is acquiring the Transferred
Interest for its account with no present intention of distributing such
Transferred Interest or any part thereof in any manner which would violate
the Securities Act of 1933, as amended, but without prejudice, however, to
the right of Transferee at all times to sell or otherwise dispose of all or
any part of such Transferred Interest in compliance with Section 7.03(d) of
the Participation Agreement.
8. Representations and Warranties of Transferor.
Transferor represents and warrants to Transferee that as of the Effective
Time:
(a) Organization and Power. Transferor is a corporation
duly organized, validly existing and in good standing under the
laws of the State of Delaware and has full corporate power,
authority and legal right to execute, deliver and perform this
Agreement and to enter into and carry out the transactions
contemplated hereby and in the other Operative Agreements (the
"Transactions").
(b) Authorization, Execution and Validity. This Agreement
has been duly authorized, executed and delivered by Transferor and
constitutes the legal, valid and binding obligation of Transferor,
enforceable against it in accordance with its terms except as
enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the rights of
creditors generally and by general principles of equity.
(c) Conflict. The execution, delivery and performance by
Transferor of this Agreement and compliance by Transferor with all
of the provisions hereof do not contravene any regulation or any
order of any governmental authority applicable to or binding on
Transferor, or contravene the provisions, or constitute a default
by Transferor under, its certificate of incorporation or by-laws
or any indenture, mortgage, contract or other agreement or
instrument to which Transferor is a party or by which Transferor
or any of its Properties is bound or affected.
(d) Consents. No consent, approval or authorization of, or
filing, registration or qualification with, or the giving of
notice or the taking of any other action with respect to, any
governmental authority on the part of Transferor is required in
connection with the execution, delivery and performance by
Transferor of this Agreement.
(e) Litigation. There are no proceedings pending or, to
the knowledge of Transferor, threatened against Transferor before
any governmental authority that would materially and adversely
affect the ability of Transferor to consummate the Transactions.
(f) No Liens. The Trust Estate is free of Lessor's Liens
attributable to Transferor.
(g) Compliance with Operative Agreements. Transferor has
fully performed all of its obligations under the Participation
Agreement and under each other Operative Agreement which
obligations by their terms are required to be satisfied or
performed prior to the Effective Time or prior to the consummation
of the Transactions.
(h) Default. As a result of the transfer effected hereby,
no Indenture Default attributable to the Owner Participant or the
Owner Trustee has occurred and is continuing.
Notwithstanding the foregoing or anything else contained in
this Agreement, it makes no representation or warranty in this Agreement
with respect to laws, rules or regulations relating to aviation or to the
nature or use of the equipment owned by the Owner Trustee, including,
without limitation, the airworthiness, value, condition, workmanship,
design, patent or trademark infringement, operation, merchantability or
fitness for use of the Aircraft.
9. Representations and Warranties of Transferee.
Transferee represents and warrants to Transferor and to the other parties
to the Participation Agreement that as of the Effective Time:
(a) Transferee is a corporation duly organized, validly
existing and in good standing under the laws of the State of [ ],
has the full corporate power, authority and legal right to carry
on its business as now conducted, and has full corporate power,
authority and legal right to execute, deliver and perform this
Agreement and to enter into and carry out the transactions
contemplated hereby and in the other Operative Agreements (the
"Transactions");
(b) Transferee has full corporate power, authority and
legal right to execute, deliver and enter into this Agreement and
the other Operative Agreements and full corporate power and
authority to perform its obligations thereunder, and such
execution, delivery and performance do not and will not contravene
any applicable law or any order of any governmental authority
applicable to or binding on the Transferee, or contravene the
provisions of, or constitute a default under, or result in the
creation of any Lien upon the property of the Transferee under,
its articles of incorporation or by-laws or any material
indenture, mortgage, contract or other agreement or instrument to
which the Transferee is a party or by which it or any of its
property may be bound or affected;
(c) the execution, delivery and performance of this
Agreement by the Transferee (i) has been duly authorized by all
necessary corporate action and (ii) does not require any approval
of the shareholders of the Transferee or any approval or consent
of, or notice to, any trustee or holders of any indebtedness or
obligation of the Transferee, except for such approvals and
consents as have already been obtained;
(d) this Agreement has been duly executed and delivered by
the Transferee, and constitutes the legal, valid and binding
obligation of the Transferee, enforceable against the Transferee
in accordance with its terms, except as the same may be limited by
bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting the rights of creditors generally and by general
principles of equity;
(e) there are no proceedings or actions pending or, to the
knowledge of the Transferee, threatened against the Transferee
before any governmental authority in which there is a reasonable
probability of an adverse determination that individually or in
the aggregate would materially and adversely impair the ability of
the Transferee to perform its obligations under this Agreement or
the Operative Agreements, or which involve the Transactions or
question the validity of any Operative Agreement to which the
Owner Participant is a party or any action taken or to be taken
pursuant thereto; and the Transferee is not in default with
respect to any order of any governmental authority which involves
the Transactions or the default under which would materially and
adversely affect the ability of the Transferee to perform its
obligations under this Agreement or any of the Operative
Agreements;
(f) no consent, approval, order or authorization of, giving
of notice to, or registration with, or taking of any other action
in respect of, any governmental authority is required under any
law for the execution and delivery by the Transferee of this
Agreement, or the carrying out by the Transferee of any of the
Transactions, other than any such consent, approval, order,
authorization, registration, notice or action as has been duly
obtained, given or taken;
(g) the Lessor's Estate is free of any Lessor's Liens
attributable to the Transferee;
(h) the Transferee, upon execution of this Agreement, will
not be in default under any of the Operative Agreements;
(i) no part of the funds to be used by it to acquire the
interests acquired by the Owner Participant under the
Participation Agreement constitutes assets (within the meaning of
ERISA and any applicable rules and regulations) of any employee
benefit plan subject to Title I of ERISA or of any plan or
individual retirement account subject to Section 4975 of the Code;
(j) Transferee is a "U.S. Person" as defined in Section
7701(a)(30) of the Code and is not a tax resident of another
country and if it shall at any time cease to be such a "U.S.
Person" or shall become a tax resident of another country, it
shall furnish to the Agent and each Certificate Holder an
indemnity, in form and substance reasonably satisfactory to such
Certificate Holder, for any Taxes that may be imposed on such
Holder as a result of its failure to be such a "U.S. Person" or
as a result of its being a tax resident of another country, and it
shall be personally liable for any debt service to the extent that
the receipt of rentals is reduced by reason of any withholding
Taxes that result from such failure to be such a "U.S. Person" or
from being a tax resident of another country;
(k) [After giving effect to a voting trust or similar
agreement(*), Transferee is a Citizen of the United States]
[applicable if Aircraft is registered in the United States or is
proposed to be so registered]
- ------------
(*) Such voting trust or similar agreement must be reasonably satisfactory
to the Lessor and the Indenture Trustee.
(l) On and as of the Effective Date, the representations
and warranties of the Owner Participant in Article 7 of the
Participation Agreement are true and correct as to the Transferee;
and
(m) Transferee satisfies the conditions applicable to a
transferee of the Beneficial Interest set forth in Section 7.03(d)
of the Participation Agreement, including without limitation, the
condition set forth in the last sentence thereof [and to the
extent the same has been requested by the Lessee or the Indenture
Trustee, Transferee has heretofore provided to the Lessee and the
Indenture Trustee its most recent audited financial statements,
which show a consolidated tangible net worth or combined capital
and surplus of at least $75,000,000] [remove bracketed language if
an Owner Participant Guaranty is provided].
(n) the Transferee has, independently and without reliance
upon any other party (including without limitation the Transferor)
and based on such documents and information as it has deemed
appropriate, made its own credit analysis and decision to enter
into this Agreement, and the Transferee has established adequate
means of obtaining from Lessee on a continuing basis information
pertaining to, and is now and on a continuing basis will be
completely familiar with, the financial condition, operations,
properties and prospects of Lessee.
Notwithstanding the foregoing or anything else contained in
this Agreement, it makes no representation or warranty in this Agreement
with respect to laws, rules or regulations relating to aviation or to the
nature or use of the equipment owned by the Owner Trustee, including,
without limitation, the airworthiness, value, condition, workmanship,
design, patent or trademark infringement, operation, merchantability or
fitness for use of the Aircraft, other than such laws, rules or regulations
relating to the citizenship requirements of it under applicable aviation
law.
10. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. 11.
Effectiveness. This Agreement shall be effective upon the mutual execution
and delivery of this Agreement (the "Effective Time").
12. Counterparts. This Agreement may be executed in
any number of counterparts, all of which together shall constitute a single
instrument. It shall not be necessary that any counterpart be signed by
both parties so long as each party shall sign at least one counterpart.
13. Beneficiaries. Each of the Owner Trustee, the
Indenture Trustee, the Pass Through Trustee and the Lessee, together with
their respective successors and permitted assigns, is and shall be deemed a
third party beneficiary of this Agreement entitled to enforce this
Agreement directly and in its own name and enforce any rights or claims of
the parties hereto.
14. Further Assurances. Each party agrees that from
time to time after the Effective Time, it shall execute and deliver or
cause to be executed and delivered such instruments, documents and papers,
and take all such further action as may be reasonably required in order to
consummate fully the purposes of this Agreement and to implement the
transactions contemplated hereby.
IN WITNESS WHEREOF, the parties hereto have executed
this Agreement as of the day and year first above written.
[TRANSFEROR]
By:___________________________
Name:
Title:
[TRANSFEREE]
By:___________________________
Name:
Title:
EXHIBIT G-2
FORM OF OWNER PARTICIPANT GUARANTY
TRANSFEREE'S PARENT GUARANTY, dated as of ___________
__, ____, (this "Guaranty") by ____________________, a ___________
corporation (the "Guarantor"), to State Street Bank and Trust Company of
Connecticut, National Association, in its individual capacity and as Owner
Trustee, First Security Bank, National Association, as Indenture Trustee
and Pass Through Trustee, and Federal Express Corporation, as Lessee
(collectively, together with their successors and assigns and the holders
from time to time of the Certificates, the "Beneficiaries").
W I T N E S S E T H :
WHEREAS, ___________, a ____________ corporation (the
"Transferor"), is party to the Participation Agreement (Federal Express
Corporation Trust No. N674FE), dated as of May 1, 1997 (as amended,
modified or supplemented from time to time, the "Participation Agreement"),
among Federal Express Corporation, as Lessee, PMCC Leasing Corporation, as
Owner Participant, State Street Bank and Trust Company of Connecticut,
National Association, not in its individual, except as otherwise stated
therein, but solely as Owner Trustee, First Security Bank, National
Association, not in its individual, except as otherwise stated therein, but
solely as Indenture Trustee, First Security Bank, National Association, not
in its individual, except as otherwise stated therein, but solely as Pass
Through Trustee and First Security Bank, National Association, as
Subordination Agent; and
WHEREAS, the Transferor wishes to transfer, among
other things, all of the rights, title and interest of the Transferor in
and to the Beneficial Interest under the Trust Agreement and the Lessor's
Estate created thereunder, and all of the Transferor's rights and
obligations under the Participation Agreement, the Trust Agreement and the
other Operative Agreements to __________________, a _______________
[corporation] (together with its successors and assigns, the "Transferee"),
a subsidiary of the Guarantor, pursuant to the Beneficial Interest Transfer
Agreement, dated as of the date hereof (the "Transfer Agreement"), between
the Transferor and the Transferee; and
WHEREAS, the terms of the Participation Agreement
provide that the aforementioned transfer is conditioned upon the execution
and delivery of this Guaranty by the Guarantor;
NOW, THEREFORE, in order that the Transferor may make
the aforementioned transfer to the Transferee, the Guarantor hereby agrees
with and for the benefit of the Beneficiaries as follows:
1. Definitions. Capitalized terms used herein
without definition shall have the respective meanings assigned thereto in
the Participation Agreement or the Transfer Agreement.
2. Guaranty. The Guarantor hereby unconditionally
and irrevocably guarantees, as primary obligor and not merely surety, to
the Beneficiaries the prompt and complete payment by the Transferee when
due of all payment obligations of the Transferee under the Operative
Agreements without offset or deduction and the timely performance of all
other obligations of the Transferee thereunder (such payment and other
obligations, the "Obligations"), and the Guarantor further agrees to pay
any and all expenses (including, without limitation, reasonable fees and
expenses of counsel) that may be paid or incurred by the Beneficiaries in
enforcing any rights with respect to, or collecting, any or all of the
Obligations and/or enforcing any rights with respect to, or collecting
against, the Guarantor under this Guaranty.
The Guarantor will not exercise any rights that it may
now or hereafter acquire against Transferee that arise from the existence,
payment, performance or enforcement of the Guarantor's Obligations under
this Guaranty, the Transferred Interest or the Operative Agreements,
including, without limitation, any right of subrogation, reimbursement,
exoneration, contribution or indemnification and any right to participate
in any claim or remedy of any Beneficiary against Transferee or any
collateral, whether or not such claim, remedy or right arises in equity or
under contract, statute or common law, including, without limitation, the
right to take or receive from Transferee, directly or indirectly, in cash
or other property or by set-off or in any other manner, payment or security
on account of such claim, remedy or right, unless and until all of the
Obligations have been performed in full and all other amounts payable under
this Guaranty shall have been paid in full in cash. If any amount shall be
paid to the Guarantor in violation of the preceding sentence at any time
prior to the final payment in full in cash of the Obligations and all other
amounts payable under this Guaranty, such amount shall be held in trust for
the benefit of any Beneficiary and shall forthwith be paid to such
Beneficiary to be credited and applied to the Obligations and all other
amounts payable under this Guaranty, whether matured or unmatured, in
accordance with the terms of the Operative Agreements, or to be held as
collateral for any Obligations or other amounts payable under this Guaranty
thereafter arising.
3. No Subrogation. Notwithstanding anything to the
contrary in this Guaranty, the Guarantor hereby agrees not to assert any
rights which may have arisen in connection with this Guaranty to be
subrogated to any of the rights (whether contractual, under the Bankruptcy
Code, under common law or otherwise) of any Beneficiary against the
Transferee for the payment of the Obligations until all of the Obligations
shall have been satisfied by payment and performance in full.
4. Amendments with Respect to the Obligations;
Waiver of Rights. The Guarantor shall remain fully obligated hereunder
notwithstanding that, without any reservation of rights against the
Guarantor and without notice to or further assent by the Guarantor, any
demand for payment or performance of any of the Obligations made by any
Beneficiary may be rescinded by such party and any of the obligations
continued, and the Obligations, may, from time to time, in whole or part,
be renewed, extended, amended, modified, accelerated, compromised, waived,
surrendered or released by any Beneficiary and any Operative Agreement may
be amended, modified, supplemented or terminated, in whole or in part, in
accordance with the provisions thereof from time to time. When making any
demand hereunder against the Guarantor, a Beneficiary may, but shall be
under no obligation to, make a similar demand on the Transferee, and any
failure by a Beneficiary to make any such demand or to collect any payments
from the Transferee or any release of the Transferee shall not relieve the
Guarantor of its obligations or liabilities hereunder, and shall not impair
or affect the rights and remedies, express or implied, or as a matter of
law, of any Beneficiary against the Guarantor. For the purposes hereof,
"demand" shall include the commencement and continuance of any legal
proceedings. The Guarantor represents and warrants that it is the parent
of the Transferee, and agrees that its obligations hereunder shall continue
unimpaired, even if the Guarantor is no longer an Affiliate of the
Transferee.
5. Guaranty Absolute and Unconditional. The
Guarantor guarantees that the Obligations will be paid and performed
strictly in accordance with the terms of the Transfer Agreement and the
Operative Agreements, regardless of any law, regulation or order now or
hereafter in effect in any jurisdiction affecting any such terms or the
rights of any Beneficiary with respect thereto. The obligations of the
Guarantor under this Guaranty are independent of the Obligations or any
other obligations of any other party, and a separate action or actions may
be brought and prosecuted against the Guarantor to enforce this Guaranty,
irrespective of whether the Transferee or any other party is joined in any
such action or actions. The Guarantor waives any and all notice of the
creation, renewal, extension or accrual of any of the Obligations and
notice of or proof of reliance by any Beneficiary upon this Guaranty or
acceptance of this Guaranty; the Obligations, and any of them, shall
conclusively be deemed to have been created, contracted or incurred, or
renewed, extended, amended or waived, in reliance upon this Guaranty; and
all dealings between the Transferee or the Guarantor and any Beneficiary
shall likewise be conclusively presumed to have been had or consummated in
reliance upon this Guaranty. The Guarantor waives, to the fullest extent
permitted by applicable law, diligence, presentment, promptness, protest,
mitigation of damages by the Beneficiaries demand for payment and notice of
default or nonpayment to or upon the Transferee or the Guarantor with
respect to the Obligations. The Guarantor further waives any right to
revoke this Guaranty, and acknowledges that this Guaranty is continuing in
nature and applies to all Obligations, whether existing now or in the
future. The Guarantor understands and agrees that, to the fullest extent
permitted by applicable law, this Guaranty shall be construed as a
continuing, absolute and unconditional guaranty of payment and performance
(and not merely of collectibility) without regard to:
(a) the validity, regularity or enforceability of the
Transfer Agreement, any Operative Agreement, or any of the
Obligations at any time or from time to time held by any
Beneficiary;
(b) any defense, set-off, rebate, adjustment, withholding,
deduction or counterclaim (other than a defense of payment or
performance) that may at any time be available to or be asserted
by the Transferee against any Beneficiary or any agreement or
instrument relating thereto or;
(c) any change in the time, manner or place of payment of,
or in any other term of, all or any of the obligations or any
other obligations of any other party under the Transfer Agreement,
the Operative Agreements, or any other amendment or waiver of or
any consent to departure from the Transfer Agreement or other
Operative Agreements;
(d) any taking, release or amendment or waiver of or consent
to departure from any other guaranty, for all or any of the
Obligations;
(e) any change, restructuring or termination of the
corporate structure or existence of the Guarantor or the
Transferee or any of the Affiliates of either;
(f) any defect in the title, condition, design, operation or
fitness of, or any interference with the operation, use or
possession of, the Aircraft;
(g) any failure to establish, perfect or preserve title to
or any security interest in or to the Aircraft or any other
collateral security for the Obligations; or
(h) any other circumstance whatsoever or any existence of or
reliance on any representation by any Beneficiary that might
otherwise constitute a defense available to, or a discharge of,
the Guarantor or any other guarantor or surety.
When pursuing its rights and remedies hereunder against the
Guarantor, any Beneficiary may, but shall be under no obligation to, pursue
such rights and remedies as it may have against the Transferee for the
Obligations, and any failure by any Beneficiary to pursue such other rights
or remedies or to collect any payments from the Transferee, or any release
of the Transferee, shall not, to the fullest extent permitted by applicable
law, relieve the Guarantor of any liability hereunder, and shall not impair
or affect the rights and remedies, whether express, implied or available as
a matter of law, of any Beneficiary against the Guarantor. This Guaranty
is a continuing guaranty and shall remain in full force and effect until
the earlier of (x) the date that all of the Obligations are satisfied by
payment and performance in full and (y) the date that all right, title and
interest of the Transferee shall have been transferred to a Person meeting
the requirements of Section 7.03(d) of the Participation Agreement in
accordance with said section; provided that this Guaranty shall remain in
full force and effect with respect to obligations relating to the period
prior to such transfer.
6. Reinstatement. This Guaranty shall continue to be
effective, or be reinstated, as the case may be, if at any time payment, or
any part thereof, of any of the Obligations is rescinded or must otherwise
be restored or returned by any Beneficiary upon the insolvency, bankruptcy
dissolution, liquidation or reorganization of the Transferee or the
Guarantor, or upon or as a result of the appointment of a receiver,
intervenor or conservator of, or trustee or similar officer for, the
Transferee or the Guarantor or any substantial part of its property, or
otherwise, all as though such payments had not been made and the Guarantor
agrees that it will indemnify any such Beneficiary on demand for all
reasonable costs and expenses (including, without limitation, reasonable
fees and expenses of counsel) by such Beneficiary in connection with such
rescission or restoration.
7. Payments. The Guarantor hereby guarantees that
payments hereunder shall be paid without set-off, counterclaim, deduction,
rebate, adjustment or withholding, and shall be made in U.S. Dollars in
immediately available funds.
8. Representations and Warranties. The Guarantor
hereby represents and warrants that:
(a) the Guarantor is a corporation duly organized, validly
existing and in good standing under the laws of the jurisdiction
of its incorporation and the Transferee is currently a subsidiary
of the Guarantor;
(b) the Guarantor has the power and authority and the legal
right to execute and deliver, and to perform its obligations
under, this Guaranty, and has taken all necessary corporate action
to authorize its execution, delivery and performance of this
Guaranty;
(c) this Guaranty constitutes a legal, valid and binding
obligation of the Guarantor enforceable in accordance with its
terms, except as enforceability may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting
the enforcement of creditors' rights generally;
(d) the execution, delivery and performance of this Guaranty
will not violate any provision of any requirement of law or
contractual obligation of the Guarantor or any of its constitutive
documents;
(e) no consent or authorization of, filing with, or other
act by or in respect of, any arbitrator or governmental authority
and no consent of any other person is required in connection with
the execution, delivery, performance, validity or enforceability
of this Guaranty;
(f) the Guarantor is a [a bank, savings institution, finance
company, leasing company or trust company, national banking
association acting for its own account or in a fiduciary capacity
as trustee or agent under any pension, retirement, profit sharing
or similar trust or fund, insurance company, fraternal benefit
society or corporation acting for its own account having a
combined capital and surplus (or, if applicable, consolidated
tangible net worth or its equivalent)] of not less than
$75,000,000 [and has, if the same have been requested by the
Lessee or the Indenture Trustee, heretofore furnished to the
Lessee and the Indenture Trustee copies of its most recent audited
financial statements];
(g) there are no conditions precedent to the effectiveness
of this Guaranty that have not been satisfied or waived; and
(h) the Guarantor has, independently and without reliance
upon any Beneficiary and based on such documents and information
as it has deemed appropriate, made its own credit analysis and
decision to enter into this Guaranty, and the Guarantor has
established adequate means of obtaining from Transferee on a
continuing basis information pertaining to, and is now and on a
continuing basis will be completely familiar with, the financial
condition, operations, properties and prospects of Transferee.
9. Severability. Any provision of this Guaranty that
is prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and
any such prohibition or unenforceability in any jurisdiction shall not
invalidate or render unenforceable such provision in any other
jurisdiction.
10. Jurisdiction; Waiver of Jury Trial, Etc.
(a) The Guarantor hereby irrevocably and
unconditionally submits, for itself and its property, to the nonexclusive
jurisdiction of any New York State court or federal court of the United
States of America sitting in New York, New York, and any appellate court
from any thereof, in any action or proceeding arising out of or relating to
this Guaranty, the Transfer Agreement or any Operative Agreement to which
it is or is to be a party, or for recognition or enforcement of any
judgment, and the Guarantor hereby irrevocably and unconditionally agrees
that all claims in respect of any such action or proceeding may be heard
and determined in any such New York State court or, to the extent permitted
by law, in such federal court. The Guarantor agrees that a final judgment
in any such action or proceeding shall be conclusive and may be enforced in
other jurisdictions by suit on the judgment or in any other manner provided
by law. Nothing in this Guaranty shall affect any right that any party may
otherwise have to bring any action or proceeding relating to this Guaranty,
the Transfer Agreement or any Operative Agreement to which it is or is to
be a party in the courts of any jurisdiction.
(b) The Guarantor irrevocably and unconditionally
waives, to the fullest extent it may legally and effectively do so, any
objection that it may now or hereafter have to the laying of venue of any
suit, action or proceeding arising out of or relating to this Guaranty, the
Transfer Agreement or any Operative Agreement to which it is or is to be a
party in any New York State or federal court. The Guarantor hereby
irrevocably waives, to the fullest extent permitted by law, the defense of
an inconvenient forum to the maintenance of such action or proceeding in
any such court.
11. Section Headings. The Section headings used in
this Guaranty are for convenience of reference only and are not to affect
the construction hereof or be taken into consideration in the
interpretation hereof.
12. No Waiver; Cumulative Remedies. No Beneficiary
shall by any act (except by a written instrument pursuant to Section 13
hereof), delay, indulgence, omission or otherwise be deemed to have waived
any right or remedy hereunder or to have acquiesced in any breach of any of
the terms and conditions hereof. No failure to exercise, nor any delay in
exercising, on the part of any Beneficiary, any right, power or privilege
hereunder shall operate as a waiver thereof. No single or partial exercise
of any right, power or privilege hereunder shall preclude any other or
further exercise thereof or the exercise of any other right power or
privilege. A waiver by a Beneficiary of any right or remedy hereunder on
any one occasion shall not be construed as a bar to any right or remedy
that such Beneficiary would otherwise have on any future occasion. The
rights and remedies herein provided are cumulative, may be exercised singly
or concurrently and are not exclusive of any rights or remedies provided by
law.
13. Amendments and Waivers. None of the terms or
provisions of this Guaranty may be waived, amended or supplemented or
otherwise modified except by a written instrument executed by the Guarantor
and each Beneficiary.
14. Successors and Assigns. This Guaranty shall be
binding upon the successors and assigns of the Guarantor and shall inure to
the benefit of the Beneficiaries and their respective successors and
permitted assigns but Guarantor may not assign this Guaranty without prior
written consent of the Beneficiaries except to an assignee making, as of
the date of such assignment, (i) representations and warranties
substantially similar to those contained in Section 8 hereof and (ii) a
representation that it is a U.S. citizen, unless, in the case of the
preceding clause (ii) any of (a) the aircraft is not then registered in the
United States nor contemplated to be so registered or (b) a voting trust or
similar arrangement reasonably satisfactory to the Beneficiaries is in
place with respect to such registration or (c) it is not necessary for the
Guarantor to be a U.S. citizen in order for the aircraft to remain
registered in the United States.
15. GOVERNING LAW. THIS GUARANTY SHALL BE GOVERNED
BY AND BE CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAW OF THE STATE
OF NEW YORK.
16. Notices. All notices, requests and demands to or
upon the Guarantor or any Beneficiary to be effective shall be in writing
and, unless otherwise expressly provided herein, shall be deemed to have
been duly given or made, when delivered by hand or by mail, upon receipt,
or, when delivered by facsimile transmission, upon being sent and
confirmed, addressed (a) in the case of the Guarantor, to the Guarantor at
its office at [_________________________________], and (b) in the case of
any Beneficiary, to such Beneficiary at the address provided for such
Beneficiary in or pursuant to the Participation Agreement.
IN WITNESS WHEREOF, the undersigned has caused this Guaranty to
be duly executed and delivered by its duly authorized officer as of the day
and year first above written.
[NAME OF GUARANTOR]
_________________________________
Name:
Title:
PARTICIPATION AGREEMENT
(FEDERAL EXPRESS CORPORATION TRUST NO. N581FE)
Dated as of May 1, 1997
among
FEDERAL EXPRESS CORPORATION,
Lessee
AMSOUTH LEASING, LTD.
and
BTM FUNDING CORPORATION,
Owner Participants
WILMINGTON TRUST COMPANY,
Not in Its Individual Capacity
Except as Otherwise Expressly
Set Forth Herein, but Solely as Owner Trustee,
Owner Trustee
FIRST SECURITY BANK, NATIONAL ASSOCIATION,
Indenture Trustee
FIRST SECURITY BANK, NATIONAL ASSOCIATION,
Pass Through Trustee
and
FIRST SECURITY BANK, NATIONAL ASSOCIATION,
Subordination Agent
______________________________
LEVERAGED LEASE OF ONE MCDONNELL DOUGLAS MD-11F AIRCRAFT
SERIAL NO. 48419, REGISTRATION NO. N581FE
TABLE OF CONTENTS
Page
----
Initial Recitals........................................................... 1
ARTICLE 1
DEFINITIONS............................................................. 3
ARTICLE 2
ISSUANCE OF PASS THROUGH CERTIFICATES;
ISSUANCE AND PURCHASE OF CERTIFICATES
Section 2.01. Transfer of Funds........................................ 3
Section 2.02. Certificates............................................. 5
Section 2.03. Owner Participants' Instructions to Owner Trustee........ 5
Section 2.04. Pre-Delivery Date Adjustments to Basic Rent, Stipulated
Loss Values, Termination Values and EBO Price............ 5
ARTICLE 3
PARTICIPATION IN INVESTMENT ON DELIVERY DATE;
DELIVERY OF AIRCRAFT
Section 3.01. Lessee's Notice of Delivery Date......................... 6
Section 3.02. Commitments to Participate in Purchase Price............. 6
Section 3.03. Owner Participants' Instructions to Owner Trustee........ 8
Section 3.04. Transaction Costs........................................ 9
Section 3.05. Postponement of Delivery Date............................ 9
Section 3.06. Closing.................................................. 10
ARTICLE 4
CONDITIONS PRECEDENT
Section 4.01. Conditions Precedent (Certificate Closing Date).......... 11
Section 4.02. Conditions Precedent (Delivery Date)..................... 20
Section 4.03. Opinion of Special Aviation Counsel Upon Registration.... 27
ARTICLE 5
CONDITIONS PRECEDENT TO LESSEE'S OBLIGATIONS
Section 5.01. Conditions Precedent to Lessee's Obligations............. 27
ARTICLE 6
LESSEE'S REPRESENTATIONS, WARRANTIES AND COVENANTS
Section 6.01. Lessee's Representations and Warranties.................. 28
Section 6.02. Offering by Lessee....................................... 34
Section 6.03. Certain Covenants of Lessee.............................. 34
Section 6.04. Survival of Representations and Warranties............... 42
ARTICLE 7
OTHER PARTIES' REPRESENTATIONS, WARRANTIES AND COVENANTS
Section 7.01. Acquisitions and Offerings of Interests in Lessor's
Estate................................................... 42
Section 7.02. Citizenship.............................................. 43
Section 7.03. Representations, Warranties and Covenants of Owner
Participants............................................. 44
Section 7.04. Representations, Covenants and Warranties of WTC and the
Owner Trustee............................................ 47
Section 7.05. Representations, Warranties and Covenants of the Indenture
Trustee.................................................. 50
Section 7.06. Indenture Trustee's Notice of Default.................... 52
Section 7.07. Releases from Indenture.................................. 52
Section 7.08. Covenant of Quiet Enjoyment.............................. 52
Section 7.09. Pass Through Trustee's Representations and Warranties.... 52
Section 7.10. Survival of Representations, Warranties and Covenants.... 53
Section 7.11. Lessee's Assumption of the Certificates.................. 53
Section 7.12. Indebtedness of Owner Trustee............................ 56
Section 7.13. Compliance with Trust Agreement, Etc..................... 56
Section 7.14. Subordination Agent's Representations, Warranties and
Covenants................................................ 56
ARTICLE 8
TAXES
Section 8.01. Lessee's Obligation to Pay Taxes......................... 58
Section 8.02. After-Tax Basis.......................................... 63
Section 8.03. Time of Payment.......................................... 64
Section 8.04. Contests................................................. 64
Section 8.05. Refunds.................................................. 66
Section 8.06. Lessee's Reports......................................... 66
Section 8.07. Survival of Obligations.................................. 67
Section 8.08. Payment of Taxes......................................... 67
Section 8.09. Reimbursements by Indemnitees Generally.................. 67
ARTICLE 9
GENERAL INDEMNITY
Section 9.01. Generally................................................ 68
Section 9.02. After-Tax Basis.......................................... 71
Section 9.03. Subrogation.............................................. 72
Section 9.04. Notice and Payment....................................... 72
Section 9.05. Refunds.................................................. 72
Section 9.06. Defense of Claims........................................ 73
Section 9.07. Survival of Obligations.................................. 74
Section 9.08. Effect of Other Indemnities.............................. 74
Section 9.09. Interest................................................. 74
ARTICLE 10
TRANSACTION COSTS
Section 10.01. Transaction Costs and Other Costs....................... 74
ARTICLE 11
SUCCESSOR OWNER TRUSTEE
Section 11.01. Appointment of Successor Owner Trustee.................. 77
ARTICLE 12
LIABILITIES AND INTERESTS OF THE OWNER PARTICIPANT AND HOLDERS
Section 12.01. Liabilities of the Owner Participants................... 79
Section 12.02. Interest of Holders of Certificates..................... 79
ARTICLE 13
OTHER DOCUMENTS
Section 13.01. Consent of Lessee to Other Documents.................... 79
Section 13.02. Further Assurances...................................... 80
Section 13.03. Pass Through Trustee's and Subordination Agent's
Acknowledgment.......................................... 80
ARTICLE 14
NOTICES
Section 14.01. Notices................................................. 80
ARTICLE 15
REFINANCING/REOPTIMIZATION
Section 15.01. Refinancing............................................. 81
Section 15.02. Reoptimization.......................................... 84
ARTICLE 16
[RESERVED]
ARTICLE 17
MISCELLANEOUS
Section 17.01. [Reserved].............................................. 86
Section 17.02. Collateral Account...................................... 86
Section 17.03. Counterparts............................................ 87
Section 17.04. No Oral Modifications................................... 87
Section 17.05. Captions................................................ 87
Section 17.06. Successors and Assigns.................................. 87
Section 17.07. Concerning the Owner Trustee, Indenture Trustee and the
Pass Through Trustee.................................... 87
Section 17.08. Severability............................................ 88
Section 17.09. Public Release of Information........................... 88
Section 17.10. Certain Limitations on Reorganization................... 88
Section 17.11. GOVERNING LAW........................................... 89
Section 17.12. Section 1110 Compliance................................. 89
Section 17.13. Reliance of Liquidity Providers......................... 89
ARTICLE 18
CONFIDENTIALITY
Section 18.01. Confidentiality......................................... 90
SCHEDULE I Certificate Information
SCHEDULE II Definitions
SCHEDULE III Permitted Country List
SCHEDULE IV Debt Portion
EXHIBIT A(1)(a)(i) Opinion of Lessee's Counsel
(Certificate Closing Date)
EXHIBIT A(1)(a)(ii) Opinion of Lessee's Counsel
(Delivery Date)
EXHIBIT A(1)(b)(i) Opinion of Lessee's Special Counsel
(Certificate Closing Date)
EXHIBIT A(1)(b)(ii) Opinion of Lessee's Special Counsel
(Delivery Date)
EXHIBIT A(2)(a) Opinion of Owner Participants' and Owner Participant
Guarantor's Special Counsel
EXHIBIT A(2)(b) Opinion of Owner Participant's and Owner Participant
Guarantor's Counsel
(AmSouth Leasing, Ltd. and AmSouth Bank of Alabama)
EXHIBIT A(2)(c) Opinion of Owner Participant's Counsel
(BTM Funding Corporation)
EXHIBIT A(2)(d) Opinion of Owner Participant Guarantor's Counsel
(Bank of Tokyo-Mitsubishi Trust Company)
EXHIBIT A(3) Opinion of Indenture Trustee's Special Counsel
EXHIBIT A(4)(a)(i) Opinion of Owner Trustee's Special Counsel
(Certificate Closing Date)
EXHIBIT A(4)(a)(ii) Opinion of Owner Trustee's Special Counsel
(Delivery Date)
EXHIBIT A(5) Opinion of Pass Through Trustee's Special Counsel
EXHIBIT A(6)(a) Opinion of Liquidity Provider's Counsel
EXHIBIT A(6)(b) Opinion of Liquidity Provider's Special Counsel
EXHIBIT A(7) Opinion of Engine Manufacturer's Counsel
EXHIBIT A(8) Opinion of Special Aviation Counsel
EXHIBIT B Form of Lease Agreement
EXHIBIT C Form of Indenture
EXHIBIT D Form of Trust Agreement
EXHIBIT E Form of Owner Participant Guaranty
EXHIBIT F Form of Engine Warranty Assignment and Engine Consent
PARTICIPATION AGREEMENT
(FEDERAL EXPRESS CORPORATION TRUST NO. N581FE)
PARTICIPATION AGREEMENT (FEDERAL EXPRESS CORPORATION TRUST NO.
N581FE) dated as of May 1, 1997 (this "Agreement") among FEDERAL EXPRESS
CORPORATION, a Delaware corporation (herein, together with its successors and
permitted assigns, the "Lessee"), AMSOUTH LEASING, LTD., an Alabama limited
partnership, and BTM FUNDING CORPORATION, a Massachusetts corporation (herein,
individually, together with its successors and permitted assigns, each an
"Owner Participant" and collectively together with their successors and
permitted assigns, the "Owner Participants"), WILMINGTON TRUST COMPANY, a
Delaware banking corporation, not in its individual capacity, except as
otherwise expressly stated herein, but solely as owner trustee under the Trust
Agreement referred to below (in such capacity as trustee, together with its
successors and permitted assigns, the "Owner Trustee"), FIRST SECURITY BANK,
NATIONAL ASSOCIATION, a national banking association, not in its individual
capacity, except as otherwise expressly stated herein, but solely as indenture
trustee under the Indenture referred to below (in such capacity as trustee,
together with its successors and permitted assigns, the "Indenture Trustee"),
FIRST SECURITY BANK, NATIONAL ASSOCIATION, a national banking association, not
in its individual capacity, except as otherwise expressly stated herein, but
solely as pass through trustee of three separate Pass Through Trusts (in such
capacity as trustee, together with its successors and permitted assigns, the
"Pass Through Trustee"), and FIRST SECURITY BANK, NATIONAL ASSOCIATION, a
national banking association, not in its individual capacity, except as
otherwise expressly stated herein, but solely as subordination agent (in such
capacity as trustee, together with its successors and permitted assigns, the
"Subordination Agent").
W I T N E S S E T H :
WHEREAS, capitalized terms used herein shall have the respective
meanings set forth or referred to in Article 1 hereof.
WHEREAS, the Owner Participants have entered into the Trust Agreement
with the Owner Trustee in its individual capacity, substantially in the form
of Exhibit D hereto, pursuant to which Trust Agreement the Owner Trustee
agrees, among other things, to hold the Lessor's Estate for the ratable
benefit of the Owner Participants on the terms specified in the Trust
Agreement, subject to the Lien of the Indenture.
WHEREAS, on the Pass Through Closing Date, a closing will occur with
respect to the public offering of Pass Through Certificates issued by each Pass
Through Trust, an allocable amount of the proceeds of which offering will be
used by the Pass Through Trustee to purchase for each such Pass Through Trust
the Certificates of the Series and Maturity applicable thereto.
WHEREAS, on the Certificate Closing Date, the Owner Trustee and the
Indenture Trustee will enter into the Indenture for the benefit of the Pass
Through Trustee, pursuant to which the Owner Trustee is issuing the
Certificates to the Subordination Agent on behalf of the Pass Through Trustee
as evidence of the loans made by the Pass Through Trustee to the Owner
Trustee, the proceeds of which loans will be deposited by the Indenture
Trustee on behalf of the Owner Trustee in the Collateral Account.
WHEREAS, concurrently with the execution and delivery hereof, (i)
Kredietbank N.V., acting through its New York Branch will enter into two
revolving credit agreements (each, a "Liquidity Facility"), one for the
benefit of the holders of Pass Through Certificates of each of the Pass
Through Trusts for the Series A Certificates and the Series B Certificates,
with the Subordination Agent, as agent for the Pass Through Trustee on behalf
of each such Pass Through Trust; and (ii) the Pass Through Trustee, each
Liquidity Provider and the Subordination Agent will enter into the
Intercreditor Agreement.
WHEREAS, the Certificates will be held by the Subordination Agent
pursuant to the Intercreditor Agreement on behalf of the Pass Through Trustee
for each of the Pass Through Trusts.
WHEREAS, prior to the Delivery Date, the Certificates will be secured
by the Liquid Collateral.
WHEREAS, pursuant to the terms of the Trust Agreement, the Owner
Trustee will be authorized and directed by the Owner Participants:
(a) on the Delivery Date, to purchase the Aircraft from the Lessee;
(b) on the Certificate Closing Date, to execute and deliver the
Lease substantially in the form of Exhibit B hereto, pursuant to which,
subject to the terms and conditions set forth in said Lease, the Owner
Trustee agrees to lease to the Lessee, and the Lessee agrees to lease from
the Owner Trustee, the Aircraft on the Delivery Date, such lease to be
effected by the execution and delivery on the Delivery Date of a Lease
Supplement, in the form of Exhibit A to the Lease, covering the Aircraft
and incorporating by reference all of the terms of the Lease;
(c) on the Certificate Closing Date, to execute and deliver the
Indenture, substantially in the form of Exhibit C hereto, for the benefit
of the Holders from time to time of the Certificates, pursuant to which the
Owner Trustee agrees, among other things, (A) to deposit, mortgage and
pledge with the Indenture Trustee, as part of the Trust Indenture Estate,
all of the Lessor's Estate but not Excepted Payments, (B) on the
Certificate Closing Date, to issue Certificates substantially in the form
set forth in Exhibit B to the Indenture, the proceeds of the sale of which
will be held by the Indenture Trustee on behalf of the Owner Trustee in the
Collateral Account until released in accordance with the terms hereof and of
the Indenture, and (C) on the Delivery Date, to execute and deliver the
Indenture and Security Agreement Supplement, substantially in the form of
Exhibit A to the Indenture, covering the Aircraft and supplementing the
Indenture;
(d) on the Certificate Closing Date, to execute and deliver the
Engine Warranty Assignment, whereby the Lessee assigns to the Owner Trustee
certain of the Lessee's rights and interests under the GTA to the extent
that the same relate to the Engines (except to the extent reserved in the
Engine Warranty Assignment), which Engine Warranty Assignment is to include
as an annex an Engine Consent executed by the Engine Manufacturer, said
Engine Warranty Assignment and Engine Consent to be substantially in the
form of Exhibit F hereto.
WHEREAS, on the Delivery Date pursuant to and subject to the terms and
conditions of this Agreement, the Engine Warranty Assignment and the Bills of
Sale, the Owner Trustee will purchase, and receive title to, the Aircraft from
the Lessee and lease the Aircraft to the Lessee pursuant to the Lease.
NOW, THEREFORE, in consideration of the mutual covenants contained in
this Agreement and other good and valuable consideration, receipt of which is
hereby acknowledged, the parties hereto agree as follows:
ARTICLE 1
DEFINITIONS
Unless otherwise specifically provided herein, the definitions set
forth in Schedule II hereto are incorporated herein for all purposes of this
Agreement and shall be equally applicable to both the singular and the plural
forms of the terms so defined.
ARTICLE 2
ISSUANCE OF PASS THROUGH CERTIFICATES;
ISSUANCE AND PURCHASE OF CERTIFICATES
Section 2.01. Transfer of Funds.
(a) On or before the Pass Through Closing Date, the Pass Through
Trustee and the Lessee, in accordance with the Pass Through Agreement, shall
enter into the Series Supplements, and, subject to the terms and conditions
set forth therein, on the Pass Through Closing Date (i) the Lessee shall
direct the Underwriters to execute a wire transfer or intra-bank transfer to
the Pass Through Trustee in the amount of the total proceeds payable pursuant
to the Underwriting Agreement with respect to the Pass Through Certificates
and (ii) the Pass Through Trustee shall deliver the Pass Through Certificates
to the Underwriters upon receipt by the Pass Through Trustee of such proceeds.
(b) Subject to the satisfaction or waiver of the conditions set
forth herein, on the Certificate Closing Date, on behalf of each Pass Through
Trust, from an allocable amount of the proceeds of the sale of the related
Pass Through Certificates, the Pass Through Trustee shall purchase the
Certificates specified for such Pass Through Trust on Schedule I hereto. For
each Pass Through Trust, the Pass Through Trustee shall pay an amount equal to
the principal amount of Certificates of the Series and Maturity that relates
to such Pass Through Trust, which amounts in the aggregate shall equal the
aggregate principal amount of the Certificates as specified in Section 2.04 of
the Indenture. The aggregate amount payable by the Pass Through Trustee
pursuant to this Section 2.01(b) shall be payable by wire transfer or
intra-bank transfer to the Indenture Trustee on behalf of the Owner Trustee.
(c) On the Certificate Closing Date, the Indenture Trustee shall,
on behalf of the Owner Trustee, deposit, by wire transfer or intra-bank
transfer, the amounts received by it pursuant to Section 2.01(b) hereof in the
Collateral Account pursuant to the Indenture.
(d) On the Certificate Closing Date concurrently with the events
specified in Section 2.01(b) hereof, the parties hereto shall execute and
deliver, to the extent they are parties thereto, and consent to the execution
and delivery of (if they are not parties thereto), the Lease (other than the
Lease Supplement), the Indenture (other than the Indenture and Security
Agreement Supplement), and the other documents listed in Section 4.01(d)
hereof, and the Owner Trustee shall execute and deliver to the Indenture
Trustee for authentication, and the Indenture Trustee shall authenticate and
deliver to the Subordination Agent on behalf of the Pass Through Trustee for
each of the Pass Through Trusts, upon the request of the Owner Trustee, the
Certificates as provided in Section 2.02 hereof.
(e) The Closings shall take place at the offices of Davis Polk &
Wardwell, 450 Lexington Avenue, New York, New York 10017.
Section 2.02. Certificates. Subject to the satisfaction or waiver
of the conditions set forth herein, on the Certificate Closing Date, the Owner
Participants will instruct the Owner Trustee to execute and deliver to the
Indenture Trustee, and the Indenture Trustee shall authenticate and deliver,
upon the request of the Owner Trustee, to the Subordination Agent on behalf of
the Pass Through Trustee for each of the Pass Through Trusts, the Certificates
specified for such Pass Through Trust on Schedule I attached hereto, which (i)
shall be issued in the principal amount and in the Series and Maturity set
forth for such Certificate in Schedule I hereto, (ii) shall bear interest at
the interest rate set forth for such Certificate in Schedule I hereto, (iii)
shall be issued in such form and on such terms as are specified in the
Indenture, (iv) shall be dated and authenticated on the Certificate Closing
Date and shall bear interest from the Certificate Closing Date and (v) shall
be registered in the name of the Subordination Agent on behalf of the Pass
Through Trustee for such Pass Through Trust.
Section 2.03. Owner Participants' Instructions to Owner Trustee.
Each Owner Participant agrees that the issuance of Certificates in accordance
with the terms hereof shall constitute, without further act, authorization and
direction by such Owner Participant to the Owner Trustee to take the action
specified in Section 1.01 (other than clauses (a) and (c)) of the Trust
Agreement and confirmation that all conditions to closing in respect of the
Certificate Closing Date set forth in Section 4.01 (but not Section 4.02)
hereof were either met to the satisfaction of such Owner Participant or, if
not so met, were in any event waived by it.
Section 2.04. Pre-Delivery Date Adjustments to Basic Rent,
Stipulated Loss Values, Termination Values and EBO Price. On or prior to the
Delivery Date, the percentages for Basic Rent referred to in Schedule II of
the Lease and for Stipulated Loss Value and Termination Value referred to in
Schedule III and Schedule IV, respectively, of the Lease and the EBO Price
shall be adjusted (upward or downward), subject to the procedures set forth in
Section 3.04 of the Lease and the minimum values established by Section 3.05
of the Lease and the definitions of Stipulated Loss Value and Termination
Value, to reflect changes in the pricing assumptions with respect to (i) the
Delivery Date being other than June 6, 1997, (ii) a different rate of interest
or amortization schedule assumed by the Owner Participants in calculating such
percentages from that assumed by such Owner Participants in originally
calculating such percentages, (iii) Transaction Costs being other than as
assumed in Section 10.01 hereof, (iv) any change in the length of the Basic
Term (but in no event shall the Term exceed 21.67 years) and (v) a Change in
Tax Law which occurs after the date of the execution of this Agreement but on
or prior to the Delivery Date.
ARTICLE 3
PARTICIPATION IN INVESTMENT ON DELIVERY DATE;
DELIVERY OF AIRCRAFT
Section 3.01. Lessee's Notice of Delivery Date. The Lessee agrees
to give the Owner Participants, the Indenture Trustee, the Owner Trustee and
the Pass Through Trustee at least three (3) Business Days' written or
facsimile notice prior to the Delivery Date (which notice shall be effective
only if received not later than 10:00 a.m. (New York City time) on the date
that is at least three (3) Business Days prior to the Delivery Date), which
Delivery Notice shall specify the amount of the Purchase Price, the amount of
the Owner Participants' respective Commitments, the Debt Portion, the Delivery
Date for the Aircraft, the serial number of the Airframe and each Engine, and
the Aeronautics Authority registration number for the Aircraft.
Section 3.02. Commitments to Participate in Purchase Price. (a)
Participation in Purchase Price. Subject to the terms and conditions of this
Agreement, on the Delivery Date, (i) subject to the proviso to this Section
3.02(a), the Indenture Trustee agrees to release the Debt Portion or such
lesser amount as may then be held in the Collateral Account together with the
Lessee Shortfall (as defined in clause (iii) below), if any, to the Owner
Trustee for application to the Purchase Price as provided below, (ii) each
Owner Participant agrees, severally and not jointly, to participate in the
Lessor's payment of the Purchase Price by making an investment in the
beneficial ownership of the Lessor's Estate in an amount equal to the amount
set forth in Ancillary Agreement I, (iii) subject to the proviso to this
Section 3.02(a), the Lessee agrees to pay to the Indenture Trustee the excess,
if any, of (I) the Debt Portion over (II) such amount as may then be held in
the Collateral Account (the "Lessee Shortfall") as provided in Section
17.02(a) hereof, and (iv) the Lessee shall sell the Aircraft to the Owner
Trustee and the Owner Trustee shall immediately thereafter lease the Aircraft
to the Lessee pursuant to the Lease. In consideration for the assignment to
the Owner Trustee by the Lessee under the Modification Agreement of the
Lessee's right to purchase the Aircraft and for the transfer of title to the
Aircraft from the Lessee to the Owner Trustee, the following cash payments
will be made by wire transfer of immediately available funds on the Delivery
Date: (A) by the Owner Trustee to the Lessee, an amount equal to the Purchase
Price, or such lesser amount referred to in the proviso to this Section
3.02(a), and (B) by the Indenture Trustee, on behalf of the Owner Trustee, to
the Lessee the excess of any amounts as may then be held in the Collateral
Account over the Debt Portion; provided, however, that if (1) the Delivery
Date has been postponed, (2) the investments contemplated by Section 2.14(b)
of the Indenture have been made, (3) such investments do not mature on the
rescheduled Delivery Date and (4) the Lessee elects not to break such
investments, then the Indenture Trustee shall not release amounts in the
Collateral Account to the Owner Trustee and the Lessee shall accept as payment
of the Purchase Price by the Owner Trustee an amount equal to each Owner
Participant's Commitment and the Indenture Trustee shall pay to the Lessee at
the end of the applicable investment period referred to in Section 2.14(b) of
the Indenture all amounts then held in the Collateral Account.
(b) Payment of Commitment. Each Owner Participant agrees, severally
and not jointly, with the Lessee and only with the Lessee on behalf of the
Owner Trustee, subject to the terms and conditions of this Agreement, to make
the amount of its Commitment available for and on account of the Owner Trustee
on the Delivery Date specified in the Delivery Notice pursuant to Section 3.03
hereof by wire transfer, initiated by 10:00 a.m. (New York City time on such
day) of such amount in immediately available funds, to the Owner Trustee for
deposit in its account at Wilmington Trust Company, Wilmington, Delaware, ABA
No. 031-100092, A/C No. 42045-0, Attention: Christy O'Connor, Re: FedEx
Equity Payments Account. The amount of each Owner Participant's Commitment
shall be held for the account of the applicable Owner Participant by the Owner
Trustee until released by such Owner Participant or its special counsel at
closing or until returned to such Owner Participant in accordance with Section
3.02(c) hereof.
(c) No Obligation to Increase Commitments; Delayed Delivery. (i) If
the Indenture Trustee shall default in its obligation to make the amount of
its Debt Portion available pursuant hereto, neither Owner Participant shall
have any obligation to make any portion of such Debt Portion available or to
increase the amount of its respective Commitment, but the obligations of each
Owner Participant shall nevertheless remain subject to the terms and
conditions of this Agreement.
(ii) Subject to the provisions of Section 3.05 hereof, if the closing
of the transactions contemplated by the Operative Agreements shall not have
been consummated by 2:00 p.m. (New York City time), or such earlier time as
directed by the Lessee, on the Scheduled Delivery Date, the Owner Trustee
shall, if instructed in writing by the Lessee, at the risk and expense of the
Lessee, use its reasonable best efforts to cause each Owner Participant's
Commitment to be invested and reinvested to the extent practicable at the
direction received by it from the Lessee (with a copy to such Owner
Participant), at the risk of the Lessee, in Permitted Investments consisting
of either commercial paper or time deposits; provided, however, that in the
absence of instructions by 2:00 p.m. (New York City time) the Owner Trustee
shall use its reasonable best efforts to cause such amount or the proceeds
thereof to be invested and reinvested to the extent practicable in overnight
Eurodollar time deposits. Earnings on any such investments shall be applied
to the Lessee's payment obligations, if any, to each Owner Participant
pursuant to the next succeeding paragraph, and the balance, if any, of such
earnings remaining after such application shall be paid in accordance with the
Lessee's written instructions.
If for any reason (i) the Operative Agreements shall not be executed
and delivered by the respective parties thereto and/or the delayed Delivery
Date shall not occur (whether by reason of a failure to meet a condition
precedent thereto set forth in Article 4 hereof or otherwise) on or before the
third Business Day after the Scheduled Delivery Date (or earlier if requested
by each Owner Participant) or, if earlier, the Cut-Off Date, or (ii) the
Lessee has notified the Owner Trustee (with a copy to such Owner Participant)
prior to 2:00 p.m. (New York City time) on any date after the Scheduled
Delivery Date that it does not intend to go forward to close the transactions
contemplated hereby for such Delivery Date, the Owner Participants may cancel
any funding arrangements made to fund its Commitment on the Scheduled Delivery
Date but each Owner Participant's Commitment hereunder with respect to the
Aircraft shall not be terminated thereby until the Cut-Off Date, whereupon the
Owner Participants' Commitment hereunder shall terminate. On such third
Business Day (or such earlier date) or the Cut-Off Date, as the case may be,
or the earliest practicable Business Day thereafter, the Owner Trustee shall
return the amounts held by it hereunder to the Owner Participants, provided
that the Owner Trustee shall have had a reasonable time to liquidate any
Permitted Investments it has been authorized to invest in pursuant to the
preceding paragraph and to obtain the proceeds therefrom in funds of the type
originally received, and the Lessee shall pay interest on such funds to the
Owner Participants at the full-term implicit lease rate (which rate shall not
be less than each Owner Participant's cost of funds), such interest to be
payable for the period from and including such Scheduled Delivery Date to but
excluding the date such funds are returned to the Owner Participants in
accordance with the terms hereof; provided that if any such funds are returned
to the Owner Participants after 2:00 p.m. (New York City time) on any such
date, such funds shall be deemed for purposes of this paragraph to have been
returned on the next succeeding Business Day.
The Lessee shall reimburse the Owner Trustee on demand for any loss
incurred by the Owner Trustee as a result of the investment of funds by the
Owner Trustee in accordance with the terms of this Section 3.02(c). Further,
the Lessee shall indemnify the Owner Trustee and hold it harmless from and
against any cost or expense the Owner Trustee may incur as a result of any
investment of funds or transfer of funds referred to herein in accordance with
the terms hereof. The Owner Trustee shall not be liable for failure to invest
such funds except as otherwise provided herein or for any losses incurred on
such investments except for any losses arising out of its own gross negligence
or willful misconduct.
Section 3.03. Owner Participants' Instructions to Owner Trustee.
Each Owner Participant agrees that the release of its respective Commitment in
accordance with the terms hereof shall constitute, without further act,
authorization and direction by such Owner Participant to the Owner Trustee to
take the actions specified in Sections 1.01(a) and (c) of the Trust Agreement
and confirmation that all conditions to closing set forth in Section 4.02
hereof were either met to the satisfaction of such Owner Participant or, if
not so met, were in any event waived by it.
Section 3.04. Transaction Costs. If the transactions contemplated
by this Article 3 are consummated, as and when any portion of Transaction
Costs becomes due and payable, each Owner Participant shall, as soon as
practicable upon receipt of bills or invoices for the amounts payable make
such payments or, if the Lessee shall have already made such payment, shall
reimburse the Lessee therefor or shall, as soon as practicable, furnish the
Owner Trustee funds sufficient to, and the Owner Trustee shall, as soon as
practicable, make payment of such portion to the Person or Persons entitled to
payment upon presentation to the Owner Trustee of bills or invoices for the
amount of such payment. If such transactions are not consummated, the Lessee
shall pay or cause to be paid all the Transaction Costs; provided, however
that if the failure of such transactions to be consummated is due to (i) a
failure of the Owner Participants to obtain investment approval to proceed
with the transactions contemplated hereby, (ii) a failure to negotiate the
Operative Agreements in good faith by the Owner Participants or (iii) a
wrongful act by the Owner Participant, the Lessee shall have no obligation to
pay those costs and expenses incurred directly by the Owner Participants in
connection with the transactions contemplated by this Agreement described in
Sections 10.01(a)(i) and (xi) hereof, but the Lessee shall be obligated to pay
all other Transaction Costs.
Section 3.05. Postponement of Delivery Date. (a) If an Owner
Participant shall for any reason fail or refuse to make the full amount of its
respective Commitment available on the Scheduled Delivery Date in accordance
with the terms of Section 3.02 hereof, the Owner Trustee will promptly give
each party confirmed facsimile notice thereof and the Lessee shall postpone
the Delivery Date to a date not later than the Cut-Off Date. If an Owner
Participant shall for any reason fail or refuse to make the full amount of its
respective Commitment available in accordance with the terms of Section 3.02
hereof on such postponed Delivery Date, the Lessee shall cause such Owner
Participant to assign its interest in the Lessor's Estate to another equity
investor identified by the Lessee (which may include the other Owner
Participant if such Owner Participant is ready, willing and able to acquire
such defaulting Owner Participant's interest) pursuant to Section 7.03(d)
hereof. From and after any such conveyance, the transferring Owner
Participant's obligations hereunder and under the other Operative Agreements
shall cease. If the Lessee has identified an equity investor under the
circumstances set forth above, each Owner Participant (or the defaulting Owner
Participant in the case of a transfer to the other Owner Participant) agrees to
assign its interest in the Lessor's Estate as provided above. In case of any
such conveyance (but subject to the satisfaction of the conditions precedent
specified herein), the Indenture Trustee shall release the Debt Portion or
such lesser amount as may then be held in the Collateral Account for
application to the payments contemplated in the last sentence of Section
3.02(a) hereof, subject to the proviso to Section 3.02(a) hereof.
(b) Release of Obligations. If the Delivery Date has not occurred
on or prior to the Cut-Off Date (including by reason of the Aircraft not being
completed and delivered, an Owner Participant's failure to make the full
amount of its Commitment available in accordance with the terms of Section
3.02 hereof and no transferee Owner Participant having been identified
pursuant to Section 3.05(a) hereof), then, in such event, the Owner Trustee
shall not purchase the Aircraft from the Lessee, and the parties to the
Operative Agreements shall have no further obligations or liabilities under
any of said Operative Agreements with respect to the Aircraft, including the
obligation of each Owner Participant to participate in the payment of the
Purchase Price, and such documents shall terminate and have no further force
or effect with respect to the Aircraft; provided, however, that the Lessee
shall provide, no later than the Cut-Off Date, notice of prepayment to the
Indenture Trustee and the Certificates shall be prepaid on the 15th day
following the Cut-Off Date as provided in Section 6.02(a)(vi) of the Indenture
and Section 17.02(c) hereof and provided further, that (i) the Lessee's
obligation to pay any Transaction Costs as provided in Section 3.04 hereof (to
the extent such section is applicable) and to indemnify such parties to the
extent provided in such documents, shall not be diminished or modified in any
respect and (ii) the obligations of the Owner Trustee, the Indenture Trustee
and the Lessee to return funds and pay interest, costs, expenses and other
amounts thereon or in respect thereof as provided in Section 3.02 hereof shall
continue.
(c) Optional Postponement. Without limiting the provisions of
Section 3.02(c) hereof, the Scheduled Delivery Date may be postponed from time
to time (but in no event shall the Delivery Date be later than the Cut-Off
Date) for any reason, other than pursuant to Section 3.05(a) hereof, if the
Lessee gives the Owner Participants, the Indenture Trustee, the Owner Trustee
and the Pass Through Trustee confirmed facsimile notice (or telephone notice
followed by written confirmation) of such postponement and notice of the date
to which the Delivery Date has been postponed, such notice of postponement to
be received by each party no later than 11:00 a.m. (New York City time) on the
Business Day preceding the Scheduled Delivery Date.
Section 3.06. Closing. The closing with respect to the purchase and
lease of the Aircraft on the Delivery Date shall take place at the offices of
Davis Polk & Wardwell, 450 Lexington Avenue, New York, New York 10017.
ARTICLE 4
CONDITIONS PRECEDENT
Section 4.01. Conditions Precedent (Certificate Closing Date). The
obligations of the Owner Trustee, each Owner Participant, the Indenture
Trustee, the Subordination Agent and the Pass Through Trustee on behalf of
each Pass Through Trust to participate in the transactions contemplated hereby
on the Certificate Closing Date are subject to the fulfillment to the
satisfaction of such party (or waiver by such party), prior to or on the
Certificate Closing Date, of the following conditions precedent (it being
understood that receipt by the Lessee of any of the following documents shall
not be a condition precedent to the obligations of any party):
(a) Certificates. On the Certificate Closing Date, there shall have
been duly issued and delivered by the Owner Trustee to the Subordination
Agent on behalf of Pass Through Trustee for each Pass Through Trust,
against payment therefor, a Certificate, substantially in the form set
forth in Exhibit B to the Indenture, duly authenticated, dated the
Certificate Closing Date and registered in the name of the Subordination
Agent, in the principal amounts, Series and Maturity, bearing the interest
rate and the other economic terms specified in the Series Supplements and
otherwise as provided in Section 2.04 of the Indenture. The Pass Through
Certificates shall be registered under the Securities Act, any applicable
state securities laws shall have been complied with, and the Pass Through
Agreement shall have been qualified under the Trust Indenture Act.
(b) Legal Investment. On the Certificate Closing Date, no fact or
condition shall exist under applicable laws or regulations, or
interpretations of any such laws or regulations by applicable regulatory
authorities, which, in the opinion of the Owner Participants or their
special counsel, the Pass Through Trustee, the Subordination Agent or the
Indenture Trustee or their special counsel, would make it illegal for the
Owner Participants, the Lessee, the Owner Trustee, the Pass Through
Trustee, the Subordination Agent or the Indenture Trustee, and no change
in circumstances shall have occurred which would otherwise make it illegal
or otherwise in contravention of guidance issued by regulatory authorities
for the Owner Participants, the Lessee, the Owner Trustee, the Pass Through
Trustee, the Subordination Agent or the Indenture Trustee, to participate
in the transactions to be consummated on the Certificate Closing Date; and
no action or proceeding shall have been instituted nor shall governmental
action before any court, governmental authority or agency be threatened
which in the opinion of counsel for the Owner Participants, the Indenture
Trustee, the Subordination Agent or the Pass Through Trustee is not
frivolous, nor shall any order have been issued or proposed to be issued by
any court, or governmental authority or agency, as of the Certificate
Closing Date, to set aside, restrain, enjoin or prevent the consummation of
any of the transactions contemplated by this Agreement or by any of the
other Operative Agreements.
(c) Underwriters. The Underwriters shall have transferred the funds
specified in Section 2.01(a) hereof and all conditions thereunder shall
have been satisfied or waived.
(d) Documents. This Agreement and the following documents shall have
been duly authorized, executed and delivered by the respective party or
parties thereto, shall each be satisfactory in form and substance to the
Lessee, the Owner Trustee, the Indenture Trustee, the Pass Through Trustee
and the Owner Participants (each acting directly or by authorization to its
special counsel) and shall each be in full force and effect; there shall
not have occurred any default thereunder, or any event which with the lapse
of time or the giving of notice or both would be a default thereunder, and
copies executed or certified as requested by the Lessee, the Owner Trustee,
the Indenture Trustee, the Pass Through Trustee, the Subordination Agent or
the Owner Participants, as the case may be, of such documents shall have
been delivered to the Owner Participants, the Lessee, the Indenture
Trustee, the Pass Through Trustee, the Subordination Agent and the Owner
Trustee (provided that the sole chattel-paper original of each of the Lease
and each Ancillary Agreement amendatory of the Lease, shall be delivered to
the Indenture Trustee):
(i) the Lease;
(ii) the Indenture;
(iii) in the case of the Owner Participants only, its respective Tax
Indemnity Agreement;
(iv) each Owner Participant Guaranty;
(v) the Modification Agreement;
(vi) the GTA;
(vii) the Trust Agreement;
(viii) the Ancillary Agreement I;
(ix) the Intercreditor Agreement; and
(x) the Liquidity Facility for each of the Pass Through Trusts for
the Series A Certificates and the Series B Certificates.
(e) Approvals. All approvals and consents of any trustees or
holders of any indebtedness or obligations of the Lessee, which in the
opinion of the Owner Participants, the Pass Through Trustee or the
Indenture Trustee are required in connection with any transaction
contemplated by this Agreement, shall have been duly obtained.
(f) Financing Statements. Uniform Commercial Code ("UCC") financing
statements covering all the security interests (and other interests)
intended to be created by or pursuant to the Granting Clause of the
Indenture shall have been executed and delivered by the Owner Trustee, as
debtor, and by the Indenture Trustee, as secured party, for and on behalf
of the Holders, and such financing statements shall have been duly filed or
duly submitted for filing in the State of Delaware, and all other actions
shall have been taken which, in the opinion of the Owner Participants, the
Pass Through Trustee and the Underwriters, are necessary to perfect and
protect such security interests and other interests.
(g) Corporate Documents. Except when such Person is the delivering
party, each Owner Participant, the Owner Trustee, the Pass Through Trustee,
the Lessee and the Indenture Trustee (acting directly or by authorization
to its counsel) shall have received the following, in each case in form and
substance satisfactory to it:
(i) a copy of the certificate of incorporation and by-laws of the
Lessee, certified by the Secretary or an Assistant Secretary of the
Lessee as of the Certificate Closing Date, and a copy of the minutes
of the regular meeting of the board of directors of the Lessee,
certified as such as of the Certificate Closing Date by such
Secretary or Assistant Secretary, duly authorizing the lease by the
Lessee of the Aircraft under the Lease and the execution, delivery
and performance by the Lessee of this Agreement, the Lease, the Tax
Indemnity Agreements, the Pass Through Agreement, the Series
Supplements, the other Operative Agreements to which the Lessee is or
is to be a party and each other document to be executed and delivered
by the Lessee in connection with the transactions contemplated hereby;
(ii) a copy of the articles of incorporation and bylaws of each
Owner Participant and the Owner Participant Guarantor, certified by
the Secretary or an Assistant Secretary of such Owner Participant or
the Owner Participant Guarantor as of the Certificate Closing Date, a
copy of the resolutions of the board of directors of each Owner
Participant, certified as such as of the Certificate Closing Date by
such Secretary or an Assistant Secretary, authorizing the execution
and delivery by such Owner Participant of this Agreement, the Tax
Indemnity Agreement, the Trust Agreement and the other Operative
Agreements to which such Owner Participant is or is to be a party and
each other document to be executed and delivered by the Owner
Participant in connection with the transactions contemplated hereby,
and a copy of the resolutions of the board of directors of the Owner
Participant Guarantor, certified as such as of the Certificate
Closing Date by the Secretary or an Assistant Secretary, authorizing
the execution and delivery by the Owner Participant Guarantor of the
Owner Participant Guaranty and the other Operative Agreements to
which such Owner Participant Guarantor is or is to be a party and
each other document to be executed and delivered by the Owner
Participant Guarantor in connection with the transactions
contemplated hereby;
(iii) a copy of the articles of association and by-laws and other
instruments of the Owner Trustee, certified by the Secretary or an
Assistant Secretary of the Owner Trustee as of the Certificate
Closing Date (or other like instruments satisfactory to the Lessee
and the Owner Participants) and evidence authorizing the execution,
delivery and performance by the Owner Trustee in its individual
capacity or as Owner Trustee, as the case may be, of this Agreement,
the Trust Agreement and each of the other Operative Agreements to
which it is or is to be a party, whether in its individual capacity
or as Owner Trustee, and each other document to be executed and
delivered by the Owner Trustee in connection with the transactions
contemplated hereby;
(iv) a copy of the articles of association and by-laws and other
instruments of the Indenture Trustee, certified by the Secretary or an
Assistant Secretary of the Indenture Trustee as of the Certificate
Closing Date (or other like instruments satisfactory to the Lessee
and the Owner Participants) and evidence authorizing the execution,
delivery and performance by the Indenture Trustee of each of this
Agreement, the Indenture and each of the other Operative Agreements
to which it is or is to be a party, and each other document to be
executed and delivered by the Indenture Trustee in connection with
the transactions contemplated hereby;
(v) a copy of the articles of association and by-laws and other
instruments of the Pass Through Trustee, certified by the Secretary
or an Assistant Secretary of the Pass Through Trustee as of the
Certificate Closing Date (or other like instruments satisfactory to
the Lessee and the Owner Participants) and evidence authorizing the
execution, delivery and performance by the Pass Through Trustee of
this Agreement, the Pass Through Agreement, the Series Supplements
and each of the other Operative Agreements to which it is or is to be
a party, and each other document to be executed and delivered by the
Pass Through Trustee in connection with the transactions contemplated
hereby;
(vi) a copy of the articles of association and by-laws and other
instruments of the Subordination Agent, certified by the Secretary or
an Assistant Secretary of the Subordination Agent as of the
Certificate Closing Date (or other like instruments satisfactory to
the Lessee and the Owner Participant) and evidence authorizing the
execution, delivery and performance by the Subordination Agent of
this Agreement, the Intercreditor Agreement and each of the other
Operative Agreements to which it is or is to be a party, and each
other document to be executed and delivered by the Subordination
Agent in connection with the transactions contemplated hereby; and
(vii) such other documents, evidences, materials, and information
with respect to the Lessee, the Owner Trustee, the Indenture Trustee,
the Pass Through Trustee and the Owner Participants as the Indenture
Trustee, the Pass Through Trustee or the Owner Participants may
reasonably request in order to establish the consummation of the
transactions contemplated by this Agreement.
(h) Officer's Certificate of Lessee. On the Certificate Closing
Date, the following statements shall be true, and each Owner Participant,
the Owner Trustee, the Pass Through Trustee and the Indenture Trustee shall
have received a certificate signed by the Vice President and Treasurer or
any other duly authorized officer of the Lessee, dated the Certificate
Closing Date, stating that:
(i) the representations and warranties of the Lessee contained in
the Operative Agreements to which it is a party (excluding the Tax
Indemnity Agreements) and in any certificate delivered pursuant
hereto or thereto are true and correct on and as of the Certificate
Closing Date as though made on and as of such date (except to the
extent that such representations and warranties relate solely to an
earlier date, in which case such certificate shall state that such
representations and warranties were true and correct on and as of
such earlier date);
(ii) except for the matters described (i) under "Legal
Proceedings" in the Lessee's Annual Report on Form 10-K for the
fiscal year ended May 31, 1996 (as updated by Note 7 to the financial
statements included in the Lessee's Quarterly Reports on Form 10-Q
for the fiscal quarters ended August 31, 1996, November 30, 1996 and
February 28, 1997) and (ii) in the Lessee's Current Reports on Form
8-K dated June 7, 1996, August 16, 1996 and March 4, 1997, as to
which such officer will make no certification concerning the
liability of the Lessee (if any), or the effect of any adverse
determination upon the consolidated financial condition, business or
operations of the Lessee, no material adverse change has occurred in
the financial condition, business or operations of the Lessee from
that shown in the audited financial statements of the Lessee as of
May 31, 1996 or the unaudited consolidated financial statements of
the Lessee as of February 28, 1997 and nothing has occurred which
will, in the judgment of such officer, materially adversely affect
the ability of the Lessee to carry on its business or to perform its
obligations under this Agreement and each other Operative Agreement
to which it is or is to be a party; and
(iii) no event has occurred and is continuing, or would result
from the purchase, sale, mortgage, or lease of the Aircraft, which
constitutes an Event of Loss (or event which with the passage of time
would become an Event of Loss) with respect to the Airframe or any
Engine, or a Default or an Event of Default under the Lease.
(i) Officer's Certificate of Owner Participants and Owner Participant
Guarantor. On the Certificate Closing Date, the following statements shall
be true, and the Lessee, the Pass Through Trustee, the Owner Trustee and
the Indenture Trustee shall have received a certificate from (i) each Owner
Participant, signed by a duly authorized officer of such Owner Participant
dated the Certificate Closing Date, stating that:
(i) the representations and warranties of such Owner Participant
contained in this Agreement, the Trust Agreement and any other
Operative Agreement to which it is a party (excluding the Tax
Indemnity Agreement) and in any certificate delivered pursuant hereto
or thereto, are true and correct on and as of the Certificate Closing
Date as though made on and as of such date (except to the extent that
such representations and warranties relate solely to an earlier date,
in which case such certificate shall state that such representations
and warranties were true and correct on and as of such earlier date);
(ii) no Lessor's Liens attributable to such Owner Participant
exist; and
(iii) no event has occurred and is continuing which constitutes
or, with notice or lapse of time or both would constitute, due to any
action or omission on the part of such Owner Participant, an
Indenture Event of Default other than an Indenture Event of Default
attributable to a Lease Event of Default;
and (ii) from each Owner Participant Guarantor, signed by a duly authorized
officer of such Owner Participant Guarantor dated the Certificate Closing
Date, stating that the representations and warranties of such Owner
Participant Guarantor contained in its Owner Participant Guaranty and in
any certificate delivered at the closing pursuant thereto are true and
correct on and as of the Certificate Closing Date as though made on and as
of such date (except to the extent that such representations and warranties
relate solely to an earlier date, in which case such certificate shall
state that such representations and warranties were true and correct on and
as of such earlier date).
(j) Other Officer's Certificates. On the Certificate Closing Date,
the following statements shall be true, and the Lessee, the Pass Through
Trustee, the Owner Trustee, the Subordination Agent and the Indenture
Trustee shall have received a certificate from each of WTC and the Owner
Trustee (in the case of the Lessee, the Pass Through Trustee, the
Subordination Agent and the Indenture Trustee), FSB and the Indenture
Trustee (in the case of the Lessee, the Pass Through Trustee, the
Subordination Agent and the Owner Trustee), FSB and the Pass Through
Trustee (in the case of the Lessee, the Indenture Trustee, the
Subordination Agent and the Owner Trustee) and FSB and the Subordination
Agent (in the case of the Lessee, the Pass Through Trustee, the Indenture
Trustee and the Owner Trustee), signed by a duly authorized officer of WTC
and FSB, respectively, dated the Certificate Closing Date, stating with
respect to WTC and the Owner Trustee, with respect to FSB and the Indenture
Trustee, with respect to FSB and the Pass Through Trustee or with respect
to FSB and the Subordination Agent, as the case may be, that:
(i) the representations and warranties of WTC in its individual
capacity and as Owner Trustee, of FSB in its individual capacity and
as Indenture Trustee, of FSB in its individual capacity and as Pass
Through Trustee or of FSB in its individual capacity and as
Subordination Agent contained in this Agreement, the Lease, the Trust
Agreement and the Indenture and in any certificate delivered pursuant
hereto or thereto are true and correct on and as of the Certificate
Closing Date as though made on and as of such date (except to the
extent that such representations and warranties relate solely to an
earlier date, in which case such certificate shall state that such
representations and warranties were true and correct on and as of
such earlier date);
(ii) to the best of its knowledge, no event has occurred and is
continuing, which constitutes or which, but for the lapse of time or
the giving of notice, or both, would constitute, due to any action or
omission on the part of WTC in its individual capacity or as Owner
Trustee, of FSB in its individual capacity or as Indenture Trustee,
of FSB in its individual capacity or as Pass Through Trustee, an
Event of Default or an Indenture Event of Default or of FSB in its
individual capacity or as Subordination Agent, an Event of Default or
an Indenture Event of Default; and
(iii) there are no Lessor's Liens attributable to the Owner
Trustee or WTC and no Indenture Trustee's Liens.
(k) Legal Opinions. Each Owner Participant, the Underwriters, the
Lessee, the Owner Trustee, the Pass Through Trustee and the Indenture
Trustee (acting directly or by authorization to its special counsel) shall
have received from the following counsel their respective legal opinions in
each case satisfactory to the Owner Participants, the Underwriters, the
Lessee, the Owner Trustee, the Pass Through Trustee or the Indenture
Trustee, as the case may be, as to scope and substance (and covering such
other matters as the recipient may reasonably request) and dated the
Certificate Closing Date:
(i) George W. Hearn, Vice President - Law of the Lessee, in the
form of Exhibit A(1)(a)(i) hereto and addressed to the Underwriters,
each Owner Participant, the Owner Trustee, the Pass Through Trustee,
each Liquidity Provider and the Indenture Trustee;
(ii) Chadbourne & Parke LLP, special counsel for the Owner
Participants and the Owner Participant Guarantors, in the form of
Exhibit A(2)(a) hereto, Berkowitz, Lefkovits, Isom & Kushner, a
Professional Corporation, counsel for AmSouth Leasing, Ltd. and
AmSouth Bank of Alabama, in the form of Exhibit A(2)(b) hereto,
Philip Sternstein, counsel for BTM Funding Corporation, in the form
of Exhibit A(2)(c) hereto, and Robert Hand, Vice President and
General Counsel for Bank of Tokyo-Mitsubishi Trust Company, in the
form of Exhibit A(2)(d) hereto, each addressed to the Underwriters,
each Owner Participant, the Indenture Trustee, the Owner Trustee, the
Pass Through Trustee, each Liquidity Provider and the Lessee;
(iii) Ray, Quinney & Nebeker, special counsel for the Indenture
Trustee, in the form of Exhibit A(3) hereto and addressed to the
Underwriters, each Owner Participant, the Indenture Trustee, the
Owner Trustee, the Pass Through Trustee, each Liquidity Provider and
the Lessee;
(iv) Morris, James, Hitchens & Williams, special counsel for the
Owner Trustee, in the form of Exhibit A(4)(a)(i) hereto and addressed
to the Underwriters, each Owner Participant, the Indenture Trustee,
the Owner Trustee, the Pass Through Trustee, each Liquidity Provider
and the Lessee;
(v) Davis Polk & Wardwell, special counsel for the Lessee, in the
form of Exhibit A(1)(b)(i) hereto and addressed to the Underwriters,
each Owner Participant, the Indenture Trustee, the Owner Trustee, the
Pass Through Trustee, each Liquidity Provider and the Lessee;
(vi) Ray, Quinney & Nebeker, special counsel for the Pass Through
Trustee and the Subordination Agent, in the form of Exhibit A(5)
hereto and addressed to the Underwriters, each Owner Participant, the
Indenture Trustee, the Owner Trustee, the Pass Through Trustee, each
Liquidity Provider and the Lessee; and
(vii) Johan Tyteca, Esq., manager of the Legal Department of
Kredietbank N.V., in the form of Exhibit A(6)(a) hereto, and Milbank,
Tweed, Hadley & McCloy, special counsel for the Liquidity Providers,
in the form of Exhibit A(6)(b) hereto, each addressed to the Pass
Through Trustee, the Subordination Agent, each Liquidity Provider and
the Lessee.
(l) No Indenture Event of Default. No Indenture Event of Default or
Indenture Default has occurred and is continuing.
(m) Event of Default; Default; Event of Loss. No Default or Event
of Default under the Lease or Event of Loss or event, which with the
passage of time or if continued unremedied or unaltered would constitute an
Event of Loss, shall have occurred or be in existence.
(n) Other Agreements. The Lessee and the Pass Through Trustee shall
have entered into the Pass Through Agreement and the Series Supplements, all
conditions to the effectiveness of each thereof shall have been satisfied
or waived, and the Pass Through Certificates shall have been issued
pursuant to the Series Supplements. The Lessee and the Underwriters shall
have entered into the Underwriting Agreement, all conditions to the
effectiveness thereof shall have been satisfied or waived, and the Pass
Through Certificates shall have been delivered pursuant to the Underwriting
Agreement.
(o) Payment of Taxes. (A) All taxes, fees, charges, assessments,
costs and other expenses then due and payable in connection with the
execution, delivery, recording and filing of all financing statements
referred to in subparagraph (f) of this Section 4.01, or in connection with
the issuance of the Certificates shall have been duly paid or caused to be
paid in full; and (B) all sales or use taxes and duties related to the
consummation of the transactions contemplated by the Operative Agreements
on the Certificate Closing Date which are then due and payable shall have
been duly paid in full. All conditions to the effectiveness of each
Liquidity Facility shall have been satisfied or waived.
(p) Governmental Compliance. All appropriate action required to
have been taken by the FAA, the SEC, or any governmental or political
agency, subdivision or instrumentality of the United States, prior to the
Certificate Closing Date in connection with the transactions contemplated
by this Agreement shall have been taken, and all orders, permits, waivers,
authorizations, exemptions and approvals (collectively "permits") of such
entities required to be in effect on the Certificate Closing Date in
connection with the transactions contemplated by this Agreement shall have
been issued, and all such permits shall be in full force and effect on the
Certificate Closing Date.
(q) Section 131.3 of the New York State Banking Law Filing. WTC
shall have delivered evidence of its filing made with the New York
Superintendent of Banking pursuant to Section 131.3 of the New York State
Banking Law.
Section 4.02. Conditions Precedent (Delivery Date). Subject to the
last paragraph of this Section 4.02, the obligations of the Owner Trustee,
each Owner Participant, the Indenture Trustee, the Subordination Agent and the
Pass Through Trustee on behalf of each Pass Through Trust to participate in
the transactions contemplated hereby on the Delivery Date are subject to the
fulfillment to the satisfaction of each party (or waiver by such party), prior
to or on the Delivery Date, of the following conditions precedent (it being
understood that receipt by the Lessee of any of the following documents shall
not be a condition precedent to the obligation of any party):
(a) Notice, Etc. Each party hereto shall have received a Delivery
Notice pursuant to Section 3.01 hereof at least three (3) Business Days
prior to the Delivery Date.
(b) Legal Investment. No change shall have occurred after the date
which is two days prior to the Certificate Closing Date in applicable laws
or regulations, or interpretations of any such laws or regulations by
applicable regulatory authorities, which, in the opinion of the each Owner
Participants or their special counsel, the Pass Through Trustee, the
Subordination Agent or the Indenture Trustee or their special counsel,
would make it illegal for such Owner Participant, the Lessee, the Owner
Trustee, the Pass Through Trustee, the Subordination Agent or the Indenture
Trustee, and no change in circumstances shall have occurred which would
otherwise make it illegal or otherwise in contravention of guidance issued
by regulatory authorities for each Owner Participant, the Lessee, the Owner
Trustee, the Pass Through Trustee, the Subordination Agent or the Indenture
Trustee, to participate in the transactions to be consummated on the
Delivery Date; and no action or proceeding shall have been instituted nor
shall governmental action before any court, governmental authority or
agency be threatened which in the opinion of counsel for each Owner
Participant, the Indenture Trustee, the Subordination Agent or the Pass
Through Trustee is not frivolous, nor shall any order have been issued or
proposed to be issued by any court, or governmental authority or agency, as
of the Delivery Date, to set aside, restrain, enjoin or prevent the
consummation of any of the transactions contemplated by this Agreement or
by any of the other Operative Agreements.
(c) Documents. The documents referred to in Section 4.01(d) hereof
shall each be in full force and effect and the following documents shall
have been duly authorized, executed and delivered by the respective party
or parties thereto, shall each be satisfactory in form and substance to the
Lessee, the Owner Trustee, the Indenture Trustee, the Pass Through Trustee,
the Subordination Agent and each Owner Participant (each acting directly or
by authorization to its special counsel) and shall each be in full force
and effect; there shall not have occurred any default thereunder, or any
event which with the lapse of time or the giving of notice or both would be
a default thereunder, and copies executed or certified as requested by the
Lessee, the Owner Trustee, the Indenture Trustee, the Pass Through Trustee
or each Owner Participant, as the case may be, of such documents shall have
been delivered to each Owner Participant, the Lessee, the Indenture
Trustee, the Pass Through Trustee and the Owner Trustee (provided that the
sole chattel-paper original of the Lease Supplement shall be delivered to
the Indenture Trustee):
(i) the Lease Supplement covering the Aircraft, dated the Delivery
Date;
(ii) an Indenture and Security Agreement Supplement covering the
Aircraft, dated the Delivery Date;
(iii) the Invoice;
(iv) the Bills of Sale.
(v) the Engine Warranty Assignment; and
(vi) the Engine Consent.
(d) Legal Opinions. The Owner Participants, the Underwriters, the
Lessee, the Owner Trustee, the Pass Through Trustee and the Indenture
Trustee (acting directly or by authorization to its special counsel) shall
have received from the following counsel their respective legal opinions in
each case satisfactory to the Owner Participants, the Underwriters, the
Lessee, the Owner Trustee, the Pass Through Trustee or the Indenture
Trustee, as the case may be, as to scope and substance (and covering such
other matters as the recipient may reasonably request) and dated the
Delivery Date:
(i) George W. Hearn, Vice President - Law of the Lessee, in the
form of Exhibit A(1)(a)(ii) hereto and addressed to the Underwriters,
each Owner Participant, the Owner Trustee, the Pass Through Trustee,
each Liquidity Provider and the Indenture Trustee;
(ii) Davis Polk & Wardwell, special counsel for the Lessee, in the
form of Exhibit A(1)(b)(ii) hereto and addressed to the Underwriters,
each Owner Participant, the Indenture Trustee, the Owner Trustee, the
Pass Through Trustee, each Liquidity Provider and the Lessee;
(iii) Morris, James, Hitchens & Williams, special counsel for the
Owner Trustee, in the form of Exhibit A(4)(a)(ii) hereto and
addressed to the Underwriters, each Owner Participant, the Indenture
Trustee, the Owner Trustee, the Pass Through Trustee, each Liquidity
Provider and the Lessee;
(iv) counsel for the Engine Manufacturer, in the form of Exhibit
A(7) hereto and addressed to the Underwriters, each Owner
Participant, the Indenture Trustee, the Owner Trustee, the Pass
Through Trustee, each Liquidity Provider and the Lessee;
(v) Daugherty, Fowler & Peregrin, special aviation counsel, in
the form of Exhibit A(8) hereto and addressed to the Underwriters,
each Owner Participant, the Indenture Trustee, the Owner Trustee, the
Pass Through Trustee, each Liquidity Provider and the Lessee; and
(vi) in the case of an Owner Participant only, Chadbourne & Parke
LLP, tax counsel to the Owner Participants, addressed to such Owner
Participant, with respect to certain tax matters.
(e) Title, Airworthiness and Registration. On the Delivery Date, the
following statements shall be true, and the Owner Participants, the
Indenture Trustee, the Pass Through Trustee and the Owner Trustee shall
have received evidence from the Lessee reasonably satisfactory to the Owner
Participants, the Indenture Trustee, the Pass Through Trustee and the Owner
Trustee to the effect that:
(i) the Owner Trustee has good and marketable title (subject to
filing and recording of the FAA Bill of Sale with the Aeronautics
Authority) to the Aircraft, free and clear of Liens, except the
rights of the Owner Trustee and the Lessee under the Lease and the
Lease Supplement covering the Aircraft, the rights of the Indenture
Trustee under the Indenture and the beneficial interest of the Owner
Participants created by the Trust Agreement and the interest of the
Certificate Holders created by the Indenture and the Indenture and
Security Agreement Supplement covering the Aircraft, which evidence
shall include the Bills of Sale;
(ii) the Aircraft has been duly certificated by the Aeronautics
Authority as to type and airworthiness in accordance with the terms
of the Operative Agreements;
(iii) the FAA Bill of Sale, the Lease and Lease Supplement
covering the Aircraft, the Indenture and the Indenture and Security
Agreement Supplement covering the Aircraft and the Trust Agreement
shall have been duly filed for recordation (or shall be in the
process of being so duly filed for recordation) with the Aeronautics
Authority pursuant to the Transportation Code; and
(iv) application to the Aeronautics Authority for registration of
the Aircraft in the name of the Owner Trustee shall have been duly
made and the Lessee shall have temporary or permanent authority to
operate the Aircraft.
(f) Financing Statements. A UCC notice filing describing the Lease
as a lease shall have been executed and delivered by the Owner Trustee, as
lessor, and the Lessee, as lessee (which filing shall name the Indenture
Trustee as assignee of the Owner Trustee) and shall have been duly filed in
the State of Tennessee.
(g) Payments. Each Owner Participant, severally and not jointly,
shall have made available its Commitment to the Owner Trustee and the other
payments contemplated by Section 3.02 hereof shall have been made.
(h) Report of Aircraft Expert. The Owner Participants shall have
received a report prepared by BK Associates, Inc. addressed to the Owner
Participants (with an abbreviated report to the Lessee) which report shall
be in form and substance satisfactory to the Owner Participants.
(i) Insurance. Each of the Indenture Trustee, the Pass Through
Trustee, the Owner Trustee and each Owner Participant shall have received
such evidence as it deems appropriate, including, without limitation, an
independent insurance broker's report, together with certificates of
insurance from such broker, in form and substance satisfactory to the
Indenture Trustee, the Pass Through Trustee, the Owner Trustee and each
Owner Participant to establish that the insurance required by Article 13 of
the Lease is in effect.
(j) Payment of Taxes. (A) All taxes, fees, charges, assessments,
costs and other expenses then due and payable in connection with the
execution, delivery, recording and filing of all financing statements and
the documents and instruments referred to in subparagraphs (e) and (f) of
this Section 4.02, or in connection with the purchase of the Aircraft by
the Owner Trustee and the making by the Owner Participants of their equity
investment shall have been duly paid or caused to be paid in full; and (B)
all sales or use taxes and duties related to the consummation of the
transactions contemplated by the Operative Agreements on the Delivery Date
which are then due and payable shall have been duly paid in full.
(k) No Indenture Event of Default. No Indenture Event of Default or
Indenture Default has occurred and is continuing.
(l) Event of Default; Default; Event of Loss. No Default or Event
of Default under the Lease or Event of Loss or event, which with the
passage of time or if continued unremedied or unaltered would constitute an
Event of Loss, shall have occurred or be in existence.
(m) Governmental Compliance. All appropriate action required to
have been taken by the FAA, the SEC, or any governmental or political
agency, subdivision or instrumentality of the United States, prior to the
Delivery Date in connection with the transactions contemplated by this
Agreement shall have been taken, and all orders, permits, waivers,
authorizations, exemptions and approvals (collectively "permits") of such
entities required to be in effect on the Delivery Date in connection with
the transactions contemplated by this Agreement shall have been issued, and
all such permits shall be in full force and effect on the Delivery Date.
(n) Officer's Certificate of Lessee. On the Delivery Date, the
following statements shall be true, and the Owner Participants, the Owner
Trustee, the Pass Through Trustee and the Indenture Trustee shall have
received a certificate signed by the Vice President and Treasurer or any
other duly authorized officer of the Lessee, dated the Delivery Date,
stating that:
(i) the representations and warranties of the Lessee contained in
the Operative Agreements to which it is a party (excluding the Tax
Indemnity Agreements) and in any certificate delivered pursuant
hereto or thereto are true and correct on and as of the Delivery Date
as though made on and as of such date (except to the extent that such
representations and warranties relate solely to an earlier date, in
which case such certificate shall state that such representations and
warranties were true and correct on and as of such earlier date);
(ii) except for the matters described (i) under "Legal
Proceedings" in the Lessee's Annual Report on Form 10-K for the
fiscal year ended May 31, 1996 (as updated by Note 7 to the financial
statements included in the Lessee's Quarterly Reports on Form 10-Q
for the fiscal quarters ended August 31, 1996, November 30, 1996 and
February 28, 1997) and (ii) in the Lessee's Current Reports on Form
8-K dated June 7, 1996, August 16, 1996 and March 4, 1997, as to
which such officer will make no certification concerning the
liability of the Lessee (if any), or the effect of any adverse
determination upon the consolidated financial condition, business or
operations of the Lessee, no material adverse change has occurred in
the financial condition, business or operations of the Lessee from
that shown in the audited financial statements of the Lessee as of
May 31, 1996 or the unaudited consolidated financial statements of
the Lessee as of February 28, 1997 and nothing has occurred which
will, in the judgment of such officer, materially adversely affect
the ability of the Lessee to carry on its business or to perform its
obligations under this Agreement and each other Operative Agreement
to which it is or is to be a party; and
(iii) no event has occurred and is continuing, or would result
from the purchase, sale, mortgage, or lease of the Aircraft, which
constitutes an Event of Loss (or event which with the passage of time
would become an Event of Loss) with respect to the Airframe or any
Engine, or a Default or an Event of Default under the Lease.
(o) Officer's Certificate of Owner Participants. On the Delivery
Date, the following statements shall be true, and the Lessee, the Pass
Through Trustee, the Owner Trustee and the Indenture Trustee shall have
received a certificate from the Owner Participants, signed by a duly
authorized officer of such Owner Participant dated the Delivery Date,
stating that:
(i) the representations and warranties of an Owner Participant
contained in this Agreement, the Trust Agreement and any other
Operative Agreement (excluding the Tax Indemnity Agreement) to which
it is a party and in any certificate delivered pursuant hereto or
thereto, are true and correct on and as of the Delivery Date as
though made on and as of such date (except to the extent that such
representations and warranties relate solely to an earlier date, in
which case such certificate shall state that such representations and
warranties were true and correct on and as of such earlier date);
(ii) no Lessor's Liens attributable to the Owner Participants
exist; and
(iii) no event has occurred and is continuing which constitutes
or, with notice or lapse of time or both would constitute, due to any
action or omission on the part of the Owner Participants, an
Indenture Event of Default other than an Indenture Event of Default
attributable to a Lease Event of Default.
(p) Other Officer's Certificates. On the Delivery Date, the
following statements shall be true, and the Owner Participants, the Lessee,
the Pass Through Trustee, the Owner Trustee, the Subordination Agent and
the Indenture Trustee shall have received a certificate from each of WTC
and the Owner Trustee (in the case of the Lessee, the Pass Through Trustee,
the Owner Participants, the Subordination Agent and the Indenture Trustee),
FSB and the Indenture Trustee (in the case of the Lessee, the Pass Through
Trustee, the Owner Participants, the Subordination Agent and the Owner
Trustee), FSB and the Pass Through Trustee (in the case of the Lessee, the
Indenture Trustee, the Owner Participants, the Subordination Agent and the
Owner Trustee) and FSB and the Subordination Agent (in the case of the
Lessee, the Indenture Trustee, the Owner Participants, the Pass Through
Trustee and the Owner Trustee) signed by a duly authorized officer of WTC
and FSB, respectively, dated the Delivery Date, stating with respect to WTC
and the Owner Trustee, with respect to FSB and the Indenture Trustee, with
respect to FSB and the Pass Through Trustee or with respect to FSB and the
Subordination Agent, as the case may be, that:
(i) the representations and warranties of WTC in its individual
capacity and as Owner Trustee, of FSB in its individual capacity and
as Indenture Trustee, of FSB in its individual capacity and as Pass
Through Trustee or of FSB in its individual capacity and as
Subordination Agent contained in this Agreement, the Lease, the Trust
Agreement and the Indenture and in any certificate delivered pursuant
hereto or thereto are true and correct on and as of the Delivery Date
as though made on and as of such date (except to the extent that such
representations and warranties relate solely to an earlier date, in
which case such certificate shall state that such representations and
warranties were true and correct on and as of such earlier date);
(ii) to the best of its knowledge, no event has occurred and is
continuing, which constitutes or which, but for the lapse of time or
the giving of notice, or both, would constitute, due to any action or
omission on the part of WTC in its individual capacity or as Owner
Trustee, of FSB in its individual capacity or as Indenture Trustee,
of FSB in its individual capacity or as Pass Through Trustee, an
Event of Default or an Indenture Event of Default or of FSB in its
individual capacity or as Subordination Agent, an Event of Default or
an Indenture Event of Default; and
(iii) there are no Lessor's Liens attributable to the Owner
Trustee or WTC and no Indenture Trustee's Liens affecting the Trust
Indenture Estate or the Lessor's Estate or any part thereof.
(q) Release of Debt Portion. The Indenture Trustee shall have
released the Debt Portion from (or such lesser amount as may then be held in)
the Collateral Account.
Notwithstanding anything else to the contrary in this Section 4.02, it shall
not be a condition precedent to the obligations of the Indenture Trustee, the
Pass Through Trustee or the Subordination Agent that the conditions in Section
4.02(n) and (o) be satisfied if the Lessee certifies that the failure to
fulfill such condition precedent is not reasonably likely to materially
adversely affect the holders of Pass Through Certificates and, in the event of
such failure, there has been delivered to the Indenture Trustee written
confirmation from both Moody's and S&P of the rating on any class of Pass
Through Certificates.
Section 4.03. Opinion of Special Aviation Counsel Upon Registration.
Promptly upon the registration of the Aircraft and the filing and, where
appropriate, recordation pursuant to the Transportation Code, of the FAA Bill
of Sale, the Trust Agreement, the Lease (with the Lease Supplement covering
the Aircraft, the Indenture and the Indenture and Security Agreement
Supplement covering the Aircraft attached as exhibits) and the Indenture (with
the Indenture and Security Agreement Supplement covering the Aircraft attached
as an exhibit), the Lessee shall cause Special Aviation Counsel to deliver to
the Owner Participants, the Lessee, the Owner Trustee, the Pass Through
Trustee and the Indenture Trustee an opinion as to (i) the due registration of
the Aircraft in the name of the Owner Trustee, (ii) the due recording pursuant
to the Transportation Code of the FAA Bill of Sale, the Trust Agreement, the
Lease (with such Lease Supplement, the Indenture and such Indenture and
Security Agreement Supplement attached as exhibits), and the Indenture (with
such Indenture and Security Agreement Supplement attached as an exhibit), and
(iii), subject to customary qualifications, the lack of any intervening
documents with respect to the Aircraft.
ARTICLE 5
CONDITIONS PRECEDENT TO LESSEE'S OBLIGATIONS
Section 5.01. Conditions Precedent to Lessee's Obligations. The
Lessee's obligation to participate in the transactions contemplated hereby on
the Certificate Closing Date is subject to the conditions that, prior to or on
the Certificate Closing Date, the Lessee shall have received the certificates
and other documents which are referred to in, or the opinions to be addressed
to it under, as the case may be, paragraphs (d), (g)(ii)-(v), (i), (j),
(k)(ii)-(vi) of Section 4.01 hereof and the Underwriters shall have made
available the amounts required to be paid by them pursuant to Section 2.01
hereof, and the Lessee's obligation to participate in the transactions
contemplated hereby on the Delivery Date, is subject to the conditions that,
on or prior to the Delivery Date, the Lessee shall have received the documents
which are referred to in, or the opinions to be addressed to it under, as the
case may be, paragraphs (c) and (d)(ii)-(v) of Section 4.02 hereof and the
Indenture Trustee shall have released the Debt Portion from (or such lesser
amount as may then be held in) the Collateral Account.
ARTICLE 6
LESSEE'S REPRESENTATIONS, WARRANTIES AND COVENANTS
Section 6.01. Lessee's Representations and Warranties. The Lessee
represents and warrants to each Owner Participant, the Owner Trustee (in its
individual capacity and as Owner Trustee), the Pass Through Trustee (in its
individual capacity and as Pass Through Trustee), each Liquidity Provider and
the Indenture Trustee (in its individual capacity and as Indenture Trustee)
that, on the date hereof and as of the Certificate Closing Date and the
Delivery Date (unless otherwise specified herein):
(a) the Lessee is a corporation duly organized and validly existing
and is in good standing under the laws of the State of Delaware with its
principal place of business and chief executive office (as such terms are
used in Article 9 of the Uniform Commercial Code) in Memphis, Tennessee,
and is duly qualified to do business as a foreign corporation and is in
good standing in all jurisdictions in which it has intrastate routes, or
offices or major overhaul facilities or in which other activities of the
Lessee require such qualification;
(b) the Lessee has full power, authority and legal right to conduct
its business and operations as currently conducted and to own or hold under
lease its Properties and to enter into and perform its obligations under
this Agreement, the other Operative Agreements to which it is a party, the
Pass Through Agreement and the Series Supplements (the "Lessee Documents");
(c) the Lessee is an "air carrier" within the meaning of the
Transportation Code and a holder of a certificate under Sections 41102(a)
and 41103 of the Transportation Code and a "citizen of the United States"
within the meaning of Section 40102(a)(15) of the Transportation Code
holding an "air carrier operating certificate" issued under Chapter 447 of
the Transportation Code for aircraft capable of carrying ten (10) or more
individuals or 6,000 pounds or more of cargo, and each such certificate is
in full force and effect;
(d) the Lessee possesses all necessary certificates, franchises,
licenses, permits, rights and concessions and consents (collectively
"permits") which are material to the operation of the routes flown by it
and the conduct of its business and operations as currently conducted and
each such permit is in full force and effect;
(e) the execution, delivery and performance of the Lessee Documents
by the Lessee have been duly authorized by all necessary corporate action
on the part of the Lessee and do not require any stockholder approval, or
approval or consent of any trustee or holder of any indebtedness or
obligations of the Lessee, and each such document has been duly executed
and delivered or, in the case of the Operative Agreements identified in
Section 4.02(c) hereof, will on the Delivery Date be executed and delivered
by the Lessee and constitutes (or will constitute, as the case may be) the
legal, valid and binding obligations of the Lessee enforceable against it
in accordance with the terms thereof except as such enforceability may be
limited by bankruptcy, insolvency, moratorium, reorganization or other
similar laws or equitable principles of general application to or affecting
the enforcement of creditors' rights generally (regardless of whether
enforceability is considered in a proceeding in equity or at law);
(f) no authorization, consent or approval of or other action by, and
no notice to or filing with, any United States federal or state
governmental authority or regulatory body (other than the SEC) is required
for the execution, delivery or performance by the Lessee of the Lessee
Documents or for the use and maintenance of the Aircraft except for such
registrations, applications and recordings referred to in the opinions of
Special Aviation Counsel delivered or to be delivered pursuant to Sections
4.02(d)(iii) and 4.03 hereof and except for the filings referred to in
Sections 4.01(f) and 4.02(f) hereof, all of which shall have been duly
obtained or made and shall be in full force and effect on and as of the
Certificate Closing Date or the Delivery Date, or as contemplated by said
Sections;
(g) neither the execution, delivery or performance by the Lessee of
the Lessee Documents nor compliance with the terms and provisions hereof or
thereof, conflicts or will conflict with or results or will result in a
breach or violation of any of the terms, conditions or provisions of, or
will require any consent (other than the Engine Consent which will be
executed on or prior to the Delivery Date) or approval under, any law,
governmental rule or regulation or the charter documents, as amended, or
bylaws, as amended, of the Lessee or any order, writ, injunction or decree
of any court or governmental authority against the Lessee or by which it or
any of its Properties is bound or any indenture, mortgage or contract or
other agreement or instrument to which the Lessee is a party or by which it
or any of its Properties is bound, or constitutes or will constitute a
default thereunder or results or will result in the imposition of any Lien
upon any of its Properties;
(h) there are no pending or, to the knowledge of the Lessee,
threatened actions, suits, investigations or proceedings (whether or not
purportedly on behalf of the Lessee) against or affecting the Lessee or any
of its Property before or by any court or administrative agency which (A)
involve the Aircraft, (B) except for the matters described (i) under "Legal
Proceedings" in the Lessee's Annual Report on Form 10-K for the fiscal year
ended May 31, 1996 (as updated by Note 7 to the financial statements
included in the Lessee's Quarterly Reports on Form 10-Q for the fiscal
quarters ended August 31, 1996, November 30, 1996 and February 28, 1997)
and (ii) in the Lessee's Current Reports on Form 8-K dated June 7, 1996,
August 16, 1996 and March 4, 1997, as to which no representation is made
concerning the Lessee's liability (if any) or the effect of any adverse
determination upon the consolidated financial condition, business or
operations of the Lessee, if adversely determined, would materially and
adversely affect the consolidated financial condition, business or
operations of the Lessee, or (C) if adversely determined would adversely
affect the ability of the Lessee to perform its obligations under the
Lessee Documents;
(i) the Lessee has filed or caused to be filed all tax returns which
are required to be filed and has paid or caused to be paid all taxes shown
to be due and payable pursuant to such returns or pursuant to any
assessment received by the Lessee (other than assessments the payment of
which is being contested in good faith by the Lessee), and the Lessee has
no knowledge of any related actual or proposed deficiency or additional
assessment which either in any case or in the aggregate would materially
adversely affect the Lessee's consolidated financial condition (other than,
in any such case, assessments, the payment of which is being contested in
good faith by the Lessee, as to which no representation is made concerning
the Lessee's liability (if any) or the effect of any adverse determination
upon the Lessee's consolidated financial condition);
(j) except for (A) the registration in the Owner Trustee's name of
the Aircraft pursuant to the Transportation Code to be accomplished by
filing with the FAA, of the FAA Bill of Sale, the Trust Agreement, the
Affidavits and the Application, (B) the filing with and, where appropriate,
recordation by the FAA pursuant to the Transportation Code of the
Indenture, the Indenture and Security Agreement Supplement covering the
Aircraft, the Lease and the Lease Supplement covering the Aircraft, (C) the
filing of the financing statements referred to in Sections 4.01(f) and
4.02(f) hereof and (D)(x) on the Certificate Closing Date, the taking of
possession by the Indenture Trustee of the Liquid Collateral and
maintaining possession by the Indenture Trustee thereof as contemplated in
Section 2.14(a) of the Indenture and (y) on the Delivery Date, the taking
of possession by the Indenture Trustee of the original counterpart of the
Lease and the Lease Supplement covering the Aircraft, no further action,
including any filing or recording of any document, is necessary or
advisable in order (i) to establish the Owner Trustee's title to and
interest in the Aircraft and the Lessor's Estate as against the Lessee and
any third parties, or (ii) to perfect the first security interest in and
mortgage Lien on the Trust Indenture Estate in favor of the Indenture
Trustee;
(k) on the Delivery Date, the Owner Trustee has received good and
marketable title to the Aircraft, free and clear of all Liens, except the
rights of the Lessee under the Lease and the Lease Supplement, the rights
of the Indenture Trustee under the Indenture and the beneficial interest of
the Owner Participants created by the Trust Agreement;
(l) the Lessee has heretofore delivered to the Owner Participants
true and correct copies of the Lessee's Annual Report on Form 10-K for the
fiscal year ended May 31, 1996 and its Quarterly Reports on Form 10-Q for
the fiscal quarters ended August 31, 1996, November 30, 1996 and February
28, 1997, and of the audited consolidated balance sheet of the Lessee for
the fiscal year ended May 31, 1996 and the unaudited consolidated balance
sheets of the Lessee as of August 31, 1996, November 30, 1996 and February
28, 1997, and the related consolidated statements of income, changes in
common stockholders' investment and cash flows for the fiscal year and
interim reporting periods ended on such dates, accompanied (except in the
case of such interim reporting periods) by a report thereon containing
opinions without qualification, except as therein noted, by Arthur Andersen
LLP, independent public accountants; said financial statements have been
prepared in accordance with generally accepted accounting principles
consistently applied and present fairly the financial position of the
Lessee as of such dates and the results of its operations and cash flows
for such periods and such Annual Report, Quarterly Reports and financial
statements did not, as of their respective dates of filing with the SEC,
contain any untrue statement of a material fact or omit a material fact
necessary to make the statements contained therein not misleading;
(m) with respect to ERISA:
(i) none of the Pension Plans (as defined at the end of this
Section 6.01(m)) nor their related trusts have been terminated in a
distress termination pursuant to Section 4041(c) of ERISA or by the
Pension Benefit Guaranty Corporation (together with any successor
agency or instrumentality thereto, the "PBGC") pursuant to Section
4042 of ERISA, nor have any actions been taken to so terminate any
Pension Plan or related trust and neither the Lessee nor any ERISA
Affiliate (as defined at the end of this Section 6.01(m)) has
incurred or could reasonably be expected to incur any material
liability with respect to a Pension Plan under Section 4062, 4063,
4064 or 4069 of ERISA;
(ii) there have been no "reportable events" (as such term is
defined in Section 4043(b) of ERISA) with respect to any Pension Plan
which have resulted or could reasonably be expected to result in any
material liability of the Lessee or any ERISA Affiliate;
(iii) no "accumulated funding deficiency" (as such term is defined
in Section 302 of ERISA or Section 412 of the Code) exists with
respect to any Pension Plan, whether or not waived, nor has any
request for a waiver under Section 412(d) of the Code been, or is
reasonably likely to be, filed with respect to any of the Pension
Plans;
(iv) neither the Lessee nor any ERISA Affiliate has failed to make
any contribution or payment to any Pension Plan which has resulted or
could reasonably be expected to result in the imposition of a Lien
under Section 302(f) of ERISA or Section 412(n) of the Code;
(v) all Pension Plans are in compliance in all material respects
with all applicable provisions of ERISA and the Code;
(vi) neither the Lessee nor any ERISA Affiliate has incurred or is
reasonably likely to incur any material withdrawal liability pursuant
to Section 4201 or 4204 of ERISA or any material liability under
Section 515 of ERISA;
(vii) to the best of the Lessee's knowledge, neither the Lessee
nor any ERISA Affiliate has engaged in a "prohibited transaction"
(within the meaning of Section 4975 of the Code or Section 406 of
ERISA) which could reasonably be expected to subject the Lessee to
the tax or penalties on prohibited transactions imposed by Section
4975 of the Code or Section 502 of ERISA; and
(viii) assuming the truth of the representations contained in
Section 7.09 hereof and compliance with Section 10.06 of the
Indenture, the execution and delivery of this Agreement and the other
Operative Agreements and the consummation of the transactions
contemplated hereby and thereby will not involve any transaction
which is prohibited by Section 406 of ERISA or in connection with
which a tax could be imposed pursuant to Section 4975 of the Code.
No part of the funds to be used by the Lessee in satisfaction of its
obligations under this Agreement or any other of the Operative
Agreements to which the Lessee is a party or to which the Lessee is
bound are the assets of any employee benefit plan subject to Title I
of ERISA, or any individual retirement account or an employee benefit
plan subject to Section 4975 of the Code;
as used in this Section 6.01(m), the term "Pension Plan" means an employee
pension benefit plan as defined in Section 3(2) of ERISA (other than a
multiemployer plan as defined in Section 4001(a)(3) of ERISA) which is
covered by Title IV of ERISA or subject to the minimum funding standards
under Section 412 of the Code and which is maintained, or contributed to,
by the Lessee or any ERISA Affiliate, and the term "ERISA Affiliate" means
any entity which together with the Lessee would be treated as a single
employer under Section 414(b), (c), (m) or (o) of the Code;
(n) the Lessee is a Citizen of the United States;
(o) except for the filings referred to in Sections 4.01(f), 4.02(e)
and 4.02(f) hereof, no governmental approval of any kind is required of any
Owner Participant or for any Owner Participant's execution of or
performance under this Agreement or any agreement contemplated hereby by
reason of any fact or circumstance of the Lessee, the nature of the
Aircraft or the Lessee's proposed operations or use of the Aircraft;
(p) on the Delivery Date, all premiums with respect to the insurance
required to be provided by the Lessee on or prior to the Delivery Date
under Article 13 of the Lease have been paid by the Lessee;
(q) on the Delivery Date, all sales or use taxes relating to the
sale of the Aircraft by the Lessee to the Owner Trustee which are then or
were theretofore due shall have been paid;
(r) the Lessee is not in default under any mortgage, deed of trust,
indenture, lease or other instrument or agreement to which the Lessee is a
party or by which it or any of its Properties or assets may be bound, or in
violation of any applicable law, which default or violation would have a
material adverse effect on the financial condition, business or operations
of the Lessee or its ability to perform any of its obligations under the
Lessee Documents;
(s) no Default or Event of Default or Event of Loss or event, which
with the passage of time or if continued unremedied or unaltered would
constitute an Event of Loss, has occurred or exists;
(t) on the Delivery Date, the Aircraft will be in such condition so
as to enable the airworthiness certificate of such Aircraft to be in good
standing under the Transportation Code; the Aircraft will have been duly
certificated by the FAA as to type and airworthiness; there will be in
effect with respect to the Aircraft a current and valid airworthiness
certificate issued by the FAA pursuant to the Transportation Code; and
there is no fact known to the Lessee which materially adversely affects the
value, utility or condition of the Aircraft;
(u) on the Certificate Closing Date and the Delivery Date, the
Lessee shall not be in default in the performance of any term or condition
of the Engine Warranty Assignment and the GTA and the aggregate amount of
loans shall not exceed the Debt Portion;
(v) neither the Lessee nor any subsidiary of the Lessee is an
"investment company" or a company "controlled by an investment company"
within the meaning of the Investment Company Act of 1940, as amended;
(w) on the Delivery Date, the Aircraft will, upon delivery, be fully
equipped to operate in commercial service and will comply with all
governmental requirements governing such service; and
(x) there are no broker's or underwriter's fees payable on behalf of
the Lessee in connection with the transactions contemplated in the Operative
Agreements other than those of the Underwriters and First Chicago Leasing
Corporation referred to in Article 10 hereof.
Section 6.02. Offering by Lessee. The Lessee represents and
warrants that it has authorized no one to act on its behalf in connection with
the offer or sale of any interest in the Lessor's Estate or the Trust
Agreement other than First Chicago Leasing Corporation. Neither the Lessee
nor, based on representations of First Chicago Leasing Corporation, anyone
acting on its behalf has directly or indirectly offered any interest in the
Lessor's Estate or the Trust Agreement, or similar interests, for sale to, or
solicited any offer to acquire any of the same from, anyone other than the
Owner Participants and no more than 10 other accredited investors (as such
term is defined in Regulation D promulgated under the Securities Act of 1933,
as amended).
Section 6.03. Certain Covenants of Lessee. The Lessee covenants and
agrees with the Owner Participants, the Owner Trustee (in its individual
capacity and as Owner Trustee), the Pass Through Trustee (in its individual
capacity and as Pass Through Trustee) and the Indenture Trustee (in its
individual capacity and as Indenture Trustee) as follows:
(a) The Lessee will cause to be done, executed, acknowledged and
delivered all such further acts, conveyances and assurances as the Owner
Trustee, the Indenture Trustee, the Pass Through Trustee or the Owner
Participants shall reasonably require for accomplishing the purposes of
this Agreement, the Trust Agreement, the Indenture, the Tax Indemnity
Agreements, the Lease and the other Operative Agreements to which it is a
party. Without limiting the generality of this Section 6.03(a), the Lessee
will take, or cause to be taken, at the Lessee's cost and expense, such
action with respect to the recording, filing, re-recording and re-filing of
the Indenture, each Indenture and Security Agreement Supplement, the Lease,
each Lease Supplement and any financing statements or other instruments as
may be necessary, or as requested by the Indenture Trustee and appropriate,
to maintain the perfection of the first security interest and the Lien
created by the Indenture, and the Owner Trustee's title to and interest in
the Aircraft and the Lessor's Estate as against the Lessee and any third
parties, or if the Lessee cannot take, or cause to be taken, such action,
will furnish to the Indenture Trustee and the Owner Trustee timely notice
of the necessity of such action, together with such instruments, in
execution form, and such other information as may be required to enable
either of them to take such action at the Lessee's cost and expense in a
timely manner.
(b) From and after the Delivery Date, the Lessee shall maintain the
certificates referred to in Section 7.01 of the Lease and shall cause the
Aircraft to be duly registered, and at all times to remain duly registered,
in the name of the Owner Trustee, under the Transportation Code; provided,
however, that the Owner Participants, the Owner Trustee and the Indenture
Trustee agree that, so long as no Default or Event of Default shall have
occurred and be continuing, if at any time after December 31, 2003 the
Lessee has requested their consent to the registration of the Aircraft in
the name of the Owner Trustee (or, if appropriate, in the name of the
Lessee or a sublessee as a "lessee" or a "sublessee"), at the Lessee's
expense, in a country in which a sublessee could be located under the
provisions of Section 7.02(a)(i) of the Lease with which the United States
then maintains normal and full diplomatic relations, upon receipt by each
Owner Participant, the Owner Trustee and the Indenture Trustee of the
assurances and opinion described below, none of them shall unreasonably
withhold their consent to such change in registration (it being agreed,
without limitation, that the inability of the Lessee to deliver such
assurances or such opinion shall constitute reasonable grounds to withhold
such consent).
As a condition to any change in the registration of the Aircraft,
each Owner Participant, the Owner Trustee in its individual and trust
capacities, and the Indenture Trustee shall have received:
(i) assurances satisfactory to them:
(A) to the effect that the insurance provisions of the Lease have
been and will be complied with and are and shall be in full force and
effect upon such change of registry;
(B) as to the continuation of the Lien of the Indenture as a
first priority, duly perfected Lien on the Aircraft;
(C) that the Owner Trustee's right, title and interest in and to
the Aircraft is recognized and fully enforceable in the new
jurisdiction of registry, that the rights of the Owner Trustee in and
to the Aircraft will not be impaired in such new jurisdiction of
registry and that the new jurisdiction of registry will give effect
to the title and registry of the Aircraft therein substantially to
the same extent as does the Government;
(D) that such new country of registry (x) would provide
substantially equivalent protection for the rights of owner
participants, lessors or lenders in similar transactions as provided
under United States law (except that, in the absence of restrictions
under the laws of such country on rights and remedies of lessors and
secured parties similar to those imposed by Sections 362 and 363 of
the Bankruptcy Code, rights and remedies similar to those available
under Section 1110 of the Bankruptcy Code shall not be required), and
(y)(i) if such change in registration is made other than in
connection with a sublease, imposes maintenance standards at least
comparable to those of the FAA, and (ii) if such change in
registration is made in connection with a sublease permitted under
Section 7.02(a)(i) of the Lease, imposes maintenance standards in
conformity with those set forth in Section 7.02(a)(i) of the Lease;
(E) that import and export certificates and any exchange permits
necessary to allow all Rent and other payments provided for under the
Lease, if required, shall have been procured at the Lessee's own cost
and expense by the Lessee;
(F) that the Lessee shall have effected or caused to be effected
at the Lessee's own cost and expense all recordings and filings that
are required to perfect the Lien of the Indenture;
(G) to the effect that the original indemnities (and any
additional indemnities for which the Lessee is then willing to enter
into a binding agreement to indemnify) in favor of the Owner
Participants, the Owner Trustee (in its individual capacity and as
trustee under the Trust Agreement), the Indenture Trustee (in its
individual capacity and as trustee under the Indenture), the Pass
Through Trustee (in its individual capacity and as trustee under the
Pass Through Agreement) and the other Indemnitees under this
Agreement, the Indenture, the Pass Through Agreement and (in the case
of the Owner Participants only) the Tax Indemnity Agreements, afford
each such party substantially the same protection as provided prior
to such change of registry;
(H) that such change will not result in the imposition of, or
increase in the amount of, any Tax for which the Lessee has not
agreed to indemnify the Owner Participants, the Indenture Trustee,
the Pass Through Trustee, the Owner Trustee (or any successor, assign
or Affiliate thereof) and the Trust Estate;
(I) that any value added tax, customs duty, tariff or similar
governmental charge relating to the change in jurisdiction of
registration of the Aircraft shall have been paid in full or
adequately provided for by the Lessee to the satisfaction of the
Owner Trustee, the Indenture Trustee and the Owner Participants;
(J) of the payment by the Lessee of any reasonable fees and
expenses of the Owner Participants, the Owner Trustee, the Indenture
Trustee and the Pass Through Trustee in connection with such change
of registry, including any reasonable attorneys' fees and expenses;
and
(K) that duties and tariffs, if applicable, shall have been paid
for by the Lessee;
(ii) a favorable opinion of counsel (reasonably satisfactory to the
Owner Trustee, the Indenture Trustee and each Owner Participant) in the new
jurisdiction of registry, addressed and reasonably satisfactory to such
parties in scope, form and substance, to the effect:
(A) that the terms (including, without limitation, the governing
law, service-of-process and jurisdictional-submission provisions
thereof) of the Lease and the Indenture are legal, valid, binding and
enforceable in such jurisdiction against the Lessee, any sublessee,
the Owner Trustee and the Indenture Trustee, respectively;
(B) that it is not necessary for the Owner Participants, the Owner
Trustee, the Indenture Trustee or the Pass Through Trustee to
register or qualify to do business or meet other requirements not
already met in such jurisdiction in connection with the registration
in the new jurisdiction (and the filing and/or recordation therein of
the Indenture or the Lease) and the exercise of any rights or
remedies with respect to the Aircraft pursuant to the Lease or the
Indenture or in order to maintain such registration and the Lien of
the Indenture;
(C) that the courts of such jurisdiction would provide
substantially equivalent protection to the Lessor, the Owner
Participants, the Pass Through Trustee and the Indenture Trustee as
provided under United States law (with the exception described in
paragraph (b)(i)(D)(x) of this Section 6.03) in respect of the
transactions contemplated hereby, including, without limitation, the
remedies provided in the Indenture and the Lease;
(D) that there is no tort liability of the beneficial owner,
record owner, lessor or mortgagee of an aircraft not in possession
thereof under the laws of such jurisdiction, other than tort
liability which might have been imposed on such owner, lessor or
mortgagee under the laws of the United States or any state thereof
(it being understood that, in the event such latter opinion cannot be
given in a form satisfactory to the Owner Participants and the
Indenture Trustee, such opinion shall be waived, if insurance
reasonably satisfactory to each Owner Participant, the Indenture
Trustee and the Owner Trustee, in its individual capacity, is
provided, at the Lessee's expense, to cover such risk and the Lessee
undertakes to keep such insurance in full force and effect);
(E) that the laws of such jurisdiction will not impair the rights
of the Lessor in and to the Aircraft and (unless the Lessee shall
have agreed to provide insurance reasonably satisfactory to the
Indenture Trustee and the Owner Participants covering the risk of
requisition of use of the Aircraft by the government of registry of
the Aircraft) require fair compensation by the government of such
jurisdiction payable in currency freely convertible into United
States dollars for the loss of use of the Aircraft in the event of
such requisition;
(F) that the Owner Trustee's title to the Aircraft is recognized
and fully enforceable in such jurisdiction, that such jurisdiction
will give effect to the title of the Aircraft therein substantially
to the same extent as does the Government, and that the Lien of the
Indenture shall continue as a first priority, duly perfected lien on
the Aircraft; and
(G) to such further effect with respect to such other matters as
any Owner Participant, the Owner Trustee, or the Indenture Trustee may
reasonably request.
If following any reregistration of the Aircraft, the Aircraft is
located outside the United States, the Lessee shall have thirty (30) days to
relocate the Aircraft within the United States and, if unable to do so, shall
pay the reasonable incremental out-of-pocket costs of the Lessor, the Owner
Participants or their authorized representatives incurred in connection with
any inspection or appraisal required or permitted under the Operative
Agreements. Such obligation shall apply only with respect to one inspection
or appraisal in any calendar year unless an Event of Default shall have
occurred and be continuing.
(c) The Lessee shall promptly file any reports, or furnish to the
Owner Trustee and the Owner Participants such information as may be
required to enable the Owner Trustee and the Owner Participants timely to
file any reports required to be filed by the Owner Trustee as the Lessor
and the Owner Participants under the Lease with any governmental authority.
(d) The Lessee will cause the Special Aviation Counsel to file, and
where appropriate record, on the Delivery Date, the FAA Bill of Sale, the
Lease, the Lease Supplement, the Trust Agreement, the Indenture and the
Indenture and Security Agreement Supplement. The following documents shall
be filed and, where appropriate, recorded on the Delivery Date with the
Aeronautics Authority in the following order of priority: first, the FAA
Bill of Sale, second, the Application, with the Trust Agreement and the
Affidavits, third, the Indenture with the Indenture and Security Agreement
Supplement attached thereto, and fourth, the Lease with the Lease
Supplement, the Indenture and the Indenture and Security Agreement
Supplement attached thereto.
(e) The Lessee will furnish to the Owner Participants, the Owner
Trustee and the Indenture Trustee annually after the execution of this
Agreement, by March 15 of each year, commencing with the year 1998, an
opinion, reasonably satisfactory to the Owner Participants and the
Indenture Trustee, of Special Aviation Counsel, or other counsel specified
from time to time by the Lessee acceptable to the Lessor and the Indenture
Trustee: (i) stating either (1) that in the opinion of such counsel such
action has been taken with respect to the recording, filing, re-recording
and re-filing of the Lease, the Indenture, the Trust Agreement, and any
supplements to any of them and any financing statements, continuation
statements or other instruments, and all other action has been taken, as is
necessary to maintain the Owner Trustee's title to and interest in the
Aircraft and the Lessor's Estate as against the Lessee and any third
parties and to maintain the perfection of the security interests created by
said documents and reciting the details of such action, or (2) that in the
opinion of such counsel no such action is necessary to maintain such title
or the perfection of such security interests; (ii) specifying all other
action which needs to be taken during the succeeding 14 months in order to
maintain such title and the perfection of such security interests (which
the Lessee agrees timely to take); and (iii) stating that the Owner Trustee
is the owner of legal title to the Aircraft, and the Aircraft is free and
clear of all Liens, except the security interest created by the Indenture
and such as are permitted by the Lease and the Indenture.
(f) The Lessee shall at all times maintain its corporate existence
except as permitted by Section 6.03(g) hereof and all of its rights,
privileges and franchises necessary in the normal conduct of its business,
except for any corporate right, privilege or franchise (i) that it
determines, in its reasonable, good faith business judgment, is no longer
necessary or desirable in the conduct of its business and (ii) the loss of
which will not materially adversely affect or diminish the rights of the
Holders.
(g) The Lessee shall not enter into any merger or consolidation, or
convey, transfer or lease all or substantially all of its assets as an
entirety to any Person, unless the surviving corporation or Person which
acquires by conveyance, transfer or lease all or substantially all of the
assets of the Lessee as an entirety (i) is a domestic corporation organized
and existing under the laws of the United States or a political subdivision
thereof, (ii) is a Citizen of the United States, (iii) is a U.S. Air
Carrier, (iv) expressly assumes by an instrument in writing in form and
substance satisfactory to the Indenture Trustee, the Owner Participants and
the Owner Trustee all of the Lessee's obligations hereunder and under the
other Operative Agreements, and each other document contemplated hereby or
thereby and the Lessee delivers such instrument to the Indenture Trustee,
any Owner Participant and the Owner Trustee, (v) provides an opinion from
outside counsel to the Lessee which counsel shall be reasonably
satisfactory to any Owner Participant and the Indenture Trustee and which
opinion shall be reasonably satisfactory to any Owner Participant and the
Indenture Trustee, and an officer's certificate, each stating that such
merger, consolidation, conveyance, transfer or lease and the instrument
noted in clause (iv) above comply with this Section 6.03(g), that such
instrument is a legal, valid and binding obligation of, and is enforceable
against, such survivor or Person, and that all conditions precedent herein
provided for relating to such transaction have been complied with, and (vi)
immediately after such merger, consolidation or conveyance, transfer or
lease, as the case may be, the surviving company is in compliance with all
of the terms and conditions of this Agreement and the Lease and each other
Operative Agreement and each other document contemplated hereby or thereby;
provided that no such merger, consolidation or conveyance, transfer or
lease shall be permitted if the same gives rise to an Event of Default.
Upon any consolidation or merger, or any conveyance, transfer or
lease of all or substantially all of the assets of the Lessee and the
satisfaction of the conditions specified in this Section 6.03(g), the
successor corporation formed by such consolidation or into which the Lessee
is merged or the Person 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 Lessee under this Agreement and the Lease and each other
Operative Agreement and any other document contemplated hereby and thereby
to which the Lessee is a party with the same effect as if such successor
corporation had been named as the Lessee herein and therein. No such
conveyance, transfer or lease of all or substantially all of the assets of
the Lessee as an entirety shall have the effect of releasing the Lessee or
any successor corporation which shall theretofore have become such in the
manner prescribed in this Section 6.03(g) from its liability hereunder or
under the other Operative Agreements. Nothing contained herein shall
permit any lease, sublease, or other arrangement for the use, operation or
possession of the Aircraft except in compliance with the applicable
provisions of the Lease.
(h) The Lessee agrees to give prompt written notice to any Owner
Participant and the Indenture Trustee of any change in the address of its
chief executive office (as such term is used in Section 9-103(3) of the
Tennessee Uniform Commercial Code) or of any change in its corporate name.
(i) The Lessee agrees to furnish to any Owner Participant, the
Lessor and the Indenture Trustee:
(A) as soon as available, but in any event within one hundred
twenty (120) days after the end of each fiscal year of the Lessee, a
consolidated balance sheet as of the end of such fiscal year, and the
related consolidated statements of income, common stockholders'
equity, retained earnings and cash flows of the Lessee for the fiscal
year then ended as prepared and certified by the Lessee's independent
certified public accountants, including their opinion;
(B) within sixty (60) days after the end of the first, second and
third quarterly accounting periods in each fiscal year of the Lessee,
a consolidated balance sheet of the Lessee prepared by it as of the
close of the accounting period then ended, together with the related
consolidated statements of income, retained earnings and cash flows
for such accounting period certified by the chief accounting officer
or a financial vice president of the Lessee;
(C) promptly upon their general transmission, copies of all
regular and periodic reports furnished by the Lessee to its
stockholders;
(D) promptly after filing with the SEC, copies of the Lessee's
Annual Reports on Form 10-K (including all corresponding annual
reports to shareholders), Quarterly Reports on Form 10-Q and, if
requested, any registration statement or prospectus filed by the
Lessee with any securities exchange or with the SEC;
(E) promptly upon (and in any event within five (5) Business Days
after) any Responsible Officer of the Lessee obtaining actual
knowledge of any condition or event which constitutes a Default or
any officer of the Lessee obtaining knowledge of any condition or
event which constitutes an Event of Default, an officer's certificate
specifying the nature and period of existence thereof and what action
the Lessee has taken or is taking or proposes to take with respect
thereto; and
(F) from time to time, such other financial information as the
Lessor, any Owner Participant or the Indenture Trustee may reasonably
request.
Concurrently with the delivery of the financial statements referred
to in clause (A) above, the Lessee shall deliver to the Lessor, any Owner
Participant, the Pass Through Trustee and the Indenture Trustee a certificate
of the Lessee, signed by any one of the President, the Chief Financial
Officer, the General Counsel, the Treasurer or the principal accounting
officer of the Lessee, stating that the signer, or an employee reporting to
same, is familiar with the relevant terms of this Agreement and the Lease and
the signer has reviewed, or has caused to be made under such Person's
supervision a review of, the activities of the Lessee and that, to the best of
his or her knowledge, there does not exist any Default or any Event of Default
or if a Default or an Event of Default exists or did exist, specifying the
nature thereof, the period of existence thereof and what action the Lessee has
taken or proposes to take with respect thereto.
Section 6.04. Survival of Representations and Warranties. The
representations and warranties of the Lessee provided in Sections 6.01 and 6.02
hereof and in any other Operative Agreement shall survive the Closings
hereunder and the expiration or other termination of this Agreement and the
other Operative Agreements.
ARTICLE 7
OTHER PARTIES' REPRESENTATIONS, WARRANTIES AND COVENANTS
Section 7.01. Acquisitions and Offerings of Interests in Lessor's
Estate. (a) [Reserved.]
(b) Owner Participants. Each Owner Participant severally (and not
jointly) represents and warrants that its interest in the Lessor's Estate and
the Trust Agreement was acquired by it for its own account and not with a view
to resale or distribution thereof; provided, however, that the disposition by
each Owner Participant of its interest in the Lessor's Estate and the Trust
Agreement shall, subject to the terms and provisions of Article 5 of the Trust
Agreement, at all times be within its control and the foregoing representation
shall not limit each Owner Participant's right to transfer or sell such
interests pursuant to the terms of this Agreement. Each Owner Participant
severally (and not jointly) nor anyone else authorized to act on its behalf
has directly or indirectly offered any interest in the Lessor's Estate or the
Trust Agreement, or in any similar security, for sale to, or solicited any
offer to acquire any of the same from, anyone. Each Owner Participant further
represents and warrants that neither it nor anyone authorized to act on its
behalf has made or will make any offer, solicitation or sale of any interest
in the Lessor's Estate or the Trust Agreement in violation of the provisions
of Section 5 of the Securities Act of 1933, as amended. No representation in
this Section 7.01(b) shall include any action or inaction of the Lessee, First
Chicago Leasing Corporation, the Subordination Agent, the Underwriters or any
Affiliate of any thereof whether or not purportedly on behalf of the Owner
Trustee, the Owner Participants or any of their Affiliates.
(c) Owner Trustee. The Owner Trustee represents and warrants, both
in its individual capacity and as trustee, that neither it nor anyone acting
on its behalf (i) has directly or indirectly offered or will directly or
indirectly offer any interest in the Lessor's Estate, or in any similar
security, for sale to, or solicited any offer to acquire any of the same from
anyone (other than the Owner Participants) and (ii) except as contemplated in
Section 8.02(a) of the Indenture, shall own Certificates.
Section 7.02. Citizenship. (a) Generally. The Owner Trustee, in
its individual capacity and as Trustee, represents and warrants that it is or
will be a Citizen of the United States on the Delivery Date. If the Owner
Trustee in its individual capacity does not comply with the requirements of
this Section 7.02, the Owner Trustee, the Indenture Trustee and the Owner
Participants hereby agree that a Default or an Event of Default shall not be
deemed to have occurred and be continuing under the Lease due to
non-compliance by the Lessee with the registration requirements in the Lease
occasioned by the noncompliance of the Owner Trustee.
(b) Owner Trustee. The Owner Trustee, in its individual capacity,
covenants that if at any time it shall have actual knowledge that it has
ceased to be a Citizen of the United States, it will resign immediately as the
Owner Trustee if such citizenship is necessary under the Transportation Code
as in effect at such time or, if it is not necessary under the Transportation
Code as in effect at such time, if it is informed in writing by the Lessee,
the Indenture Trustee or any Owner Participant that such lack of United States
citizenship would have any adverse effect on the Lessee, the Indenture
Trustee, the Holders or the Owner Participants. The Owner Trustee, in its
individual capacity, further covenants that if at any time it appears
reasonably probable that it will cease to be a Citizen of the United States
based on information that is (i) known to a Responsible Officer or (ii)
generally known to the public, it will promptly so notify, to the extent
permitted by law, all parties to this Agreement.
(c) Owner Participants. Each Owner Participant severally (and not
jointly) represents, warrants and covenants that (i) although it is not a
Citizen of the United States, it has entered into the Trust Agreement,
pursuant to which it has transferred to the Owner Trustee by virtue of Section
6.13 thereof, to the extent set forth therein, the power to manage and control
the ownership and operation of the Aircraft to ensure, as more fully set forth
therein, that such ownership and operation of the Aircraft will be controlled
by the Owner Trustee and that such Owner Participant shall have no power to
influence or limit the exercise of the Owner Trustee's authority in respect
thereof under Section 6.13 of the Trust Agreement; (ii) each Owner Participant
agrees not to amend the provisions of Section 6.13 of the Trust Agreement;
(iii) if both Owner Participants shall become Citizens of the United States,
their obligations not to amend Section 6.13 of the Trust Agreement shall
cease, except that such Section 6.13 may not be terminated unless prior
thereto the Lessee and, so long as the Indenture remains in effect, the
Indenture Trustee receives an affidavit of citizenship from both Owner
Participants; and (iv) if either Owner Participant fails with respect to its
obligations above or in Section 6.13 of the Trust Agreement and, as a result
of such failure, the Aircraft is subject to deregistration under the
Transportation Code, such Owner Participant shall promptly at its own expense
comply with any of clauses (x), (y) or (z) of the next sentence. If either
Owner Participant shall, at any time when the Aircraft is registered or the
Lessee proposes to register the Aircraft in the United States and both Owner
Participants have become Citizens of the United States, (i) cease to be, or
believe itself likely to cease to be, a Citizen of the United States and (ii)
the Aircraft shall or would therefore become ineligible for registration in
the name of the Owner Trustee under the Transportation Code and regulations
then applicable thereunder, then such Owner Participant shall give notice
thereof to the Lessee and the Indenture Trustee and shall (at its own expense
and without any reimbursement or indemnification from the Lessee) immediately
(and in any event within a period of 15 days) (x) effect a voting trust or
other similar arrangement, (y) transfer in accordance with the terms of this
Agreement and the Trust Agreement all its rights, title and interest in and to
such Trust Agreement, the Lessor's Estate and this Agreement, or (z) take any
other alternative action that would prevent any deregistration, or maintain
the United States registration, of the Aircraft. It is agreed that the Owner
Participants shall be liable to pay promptly on request to the Lessee, the
Indenture Trustee and the Pass Through Trustee for any damages actually
incurred by the Lessee, the Indenture Trustee and the Pass Through Trustee as
a result of any Owner Participant's failure to comply with its obligations
pursuant to the first sentence of this Section 7.02(c). Each party hereto
agrees, upon the request and at the sole expense of the Owner Participants, to
cooperate with each Owner Participant in complying with its obligations under
the provisions of the first sentence of this Section 7.02(c).
Section 7.03. Representations, Warranties and Covenants of Owner
Participants. (a) Representations, Warranties and Covenants. In addition to
and without limiting its other representations and warranties provided for in
this Article 7, each Owner Participant severally (and not jointly) represents
and warrants on the date hereof and as of the Certificate Closing Date and the
Delivery Date that:
(i) it is a limited partnership or a corporation, as the case may
be, duly organized and validly existing in good standing under the laws of
the State of Alabama or Massachusetts, as the case may be, and it has full
power, authority and legal right to carry on its present business and
operations, to own or lease its Properties and to enter into and to carry
out the transactions contemplated by this Agreement, the Tax Indemnity
Agreements, the Trust Agreement and the other Operative Agreements to which
it is party;
(ii) the execution, delivery and performance by it of this
Agreement, the Tax Indemnity Agreement, and the Trust Agreement and the
other Operative Agreements to which it is party have been duly authorized
by all necessary corporate action on its part and, assuming the accuracy of
the Lessee's representations in Section 6.01(o) hereof, do not require any
governmental approvals that would be required to be obtained by such Owner
Participant;
(iii) based on the representations, warranties and covenants
contained in Sections 6.01(m)(viii), 6.02 and 7.09 hereof and compliance
with Section 10.06 of the Indenture, neither the execution, delivery or
performance by such Owner Participant of this Agreement, the Tax Indemnity
Agreement, and the Trust Agreement and the other Operative Agreements to
which it is party nor compliance with the terms and provisions hereof or
thereof, conflicts or will conflict with or results or will result in a
breach or violation of any of the terms, conditions or provisions of, or
will require any consent or approval under any law, governmental rule or
regulation applicable to such Owner Participant or the charter documents, as
amended, or bylaws, as amended, of such Owner Participant or any order,
writ, injunction or decree of any court or governmental authority against
such Owner Participant or by which it or any of its Properties is bound or
any indenture, mortgage or contract or other agreement or instrument to
which such Owner Participant is a party or by which it or any of its
Properties is bound, or constitutes or will constitute a default thereunder
or results or will result in the imposition of any Lien upon any of its
Properties;
(iv) this Agreement, the Tax Indemnity Agreement and the Trust
Agreement and the other Operative Agreements to which it is party have been
or on the Certificate Closing Date will be duly executed and delivered by
such Owner Participant and constitute or on the Certificate Closing Date
will constitute the legal, valid and binding obligation of such Owner
Participant enforceable against it in accordance with their terms except as
such enforceability may be limited by bankruptcy, insolvency, moratorium,
reorganization or other similar laws or equitable principles of general
application to or affecting the enforcement of creditors' rights
(regardless of whether enforceability is considered in a proceeding in
equity or at law);
(v) to the best of its knowledge, it is not in default under any
mortgage, deed of trust, indenture, lease or other instrument or agreement
to which such Owner Participant is a party or by which it or any of its
Properties may be bound, or in violation of any applicable law, which
default or violation would have a material adverse effect on the financial
condition, business or operations of such Owner Participant or an adverse
effect on the ability of such Owner Participant to perform its obligations
under this Agreement and the other Operative Agreements to which it is or
is to be a party;
(vi) there are no pending or, to the knowledge of such Owner
Participant, threatened actions, suits, investigations or proceedings
against such Owner Participant before any court, administrative agency or
tribunal which are expected to materially adversely affect the ability of
such Owner Participant to perform its obligations under this Agreement and
the other Operative Agreements to which it is or is to be a party and such
Owner Participant knows of no pending or threatened actions or proceedings
before any court, administrative agency or tribunal involving it in
connection with the transactions contemplated by the Operative Agreements;
(vii) neither the execution and delivery by it of this Agreement or
the other Operative Agreements to which it is a party nor the performance
of its obligations hereunder or thereunder requires the consent or approval
of or the giving of notice to, the registration with, or the taking of any
other action in respect of, any governmental authority or agency that would
be required to be obtained or taken by such Owner Participant except for
filings contemplated by this Agreement;
(viii) no part of the funds to be used by it to acquire the interests
to be acquired by such Owner Participant under this Agreement constitutes
assets (within the meaning of ERISA and any applicable rules and
regulations) of any employee benefit plan subject to Title I of ERISA or of
any plan or individual retirement account subject to Section 4975 of the
Code; and
(ix) it is a "U.S. Person" as defined in Section 7701(a)(30) of the
Code and is not a tax resident of another country.
Notwithstanding the foregoing or anything else contained in this
Agreement, such Owner Participant makes no representation or warranty in this
Agreement with respect to laws, rules or regulations relating to aviation or
to the nature or use of the equipment owned by the Owner Trustee, other than
such laws, rules or regulations relating to the citizenship requirements of
such Owner Participant under applicable aviation law.
(b) Lessor's Liens. Each Owner Participant severally (and not jointly)
represents, warrants and covenants that there are no Lessor's Liens
attributable to it (or an Affiliate thereof) and that there will not be any
Lessor's Lien attributable to it (or an Affiliate thereof) on the Certificate
Closing Date. Each Owner Participant severally (and not jointly) agrees with
and for the benefit of the Lessee, the Indenture Trustee, the other Owner
Participant and the Pass Through Trustee that such Owner Participant will, at
its own cost and expense, take such action as may be necessary (by bonding or
otherwise, so long as neither the Lessee's operation and use of the Aircraft
nor the validity and priority of the Lien of the Indenture is impaired) to
duly discharge and satisfy in full, promptly after the same first becomes
known to such Owner Participant, any Lessor's Lien attributable to such Owner
Participant (or an Affiliate thereof), provided, however, that such Owner
Participant shall not be required to discharge or satisfy such Lessor's Lien
which is being contested by such Owner Participant in good faith and by
appropriate proceedings so long as such proceedings do not involve any
material danger of the sale, forfeiture or loss of the Aircraft or the
Lessor's Estate or the Trust Indenture Estate or any interest in any thereof
or otherwise materially adversely affect the validity or priority of the Lien
of the Indenture.
(c) Indemnity for Lessor's Liens. Each Owner Participant severally
(and not jointly) agrees to indemnify and hold harmless the Lessee, the
Indenture Trustee, the other Owner Participant and the Pass Through Trustee
from and against any loss, cost, expense or damage which may be suffered by
the Lessee, the Indenture Trustee or the Pass Through Trustee as the result of
the failure of such Owner Participant to discharge and satisfy any Lessor's
Liens attributable to such Owner Participant (or an Affiliate thereof) and
required to be discharged as described in Section 7.03(b) hereof.
(d) Assignment of Interests of Owner Participants. Each Owner
Participant severally (and not jointly) agrees that it will not assign, convey
or otherwise transfer any of its right, title or interest in and to the
Operative Agreements or the Lessor's Estate except in accordance with the
provisions of Article 5 of the Trust Agreement, as in effect on the date
hereof or as amended in accordance with the terms of the Operative Agreements.
(e) Actions with Respect to Lessor's Estate, Etc. Each Owner
Participant severally (and not jointly) agrees that it will not take any
action to subject the Lessor's Estate or the trust established by the Trust
Agreement, as debtor, to the reorganization or liquidation provisions of the
Bankruptcy Code or any other applicable bankruptcy or insolvency statute.
Section 7.04. Representations, Covenants and Warranties of WTC and
the Owner Trustee. (a) In addition to and without limiting its other
representations and warranties provided for in this Article 7, WTC represents
and warrants, in its individual capacity with respect to items (i), (ii),
(iii)(A), (iv), (v), (vi) and (vii) below, and as the Owner Trustee with
respect to items (iii)(B) and (iv) on the date hereof and as of the
Certificate Closing Date and the Delivery Date that:
(i) it is a banking corporation duly organized and validly
existing in good standing under the laws of the State of Delaware with its
principal place of business and chief executive office (as such terms are
used in Article 9 of the Uniform Commercial Code) at 1100 North Market
Street, Rodney Square North, Wilmington, Delaware 19890-0001, Attention:
Corporate Trust Administration and has full corporate power and authority,
in its individual capacity or (assuming the Trust Agreement has been duly
authorized, executed and delivered by the Owner Participants) as the Owner
Trustee, as the case may be, to carry on its business as now conducted, and
to execute, deliver and perform this Agreement and the Operative Agreements
to which it is or is to be a party;
(ii) the execution, delivery and performance by WTC, either in its
individual capacity or as the Owner Trustee, as the case may be, of this
Agreement and the Operative Agreements to which it is or is to be party
have been duly authorized by all necessary corporate action on its part,
and do not contravene its articles of association or by-laws; each of this
Agreement and the other Operative Agreements to which it is or is to be a
party has been duly authorized, and has been duly executed and delivered
or, in the case of the Operative Agreements identified in Section 4.02(c)
hereof, will on the Delivery Date be duly executed and delivered by WTC,
either in its individual capacity or as the Owner Trustee, as the case may
be, and neither the execution and delivery thereof nor WTC's performance of
or compliance with any of the terms and provisions thereof will violate any
State of Delaware or any political division thereof, or Federal law or
regulation governing WTC's banking or trust powers;
(iii) (A) assuming due authorization, execution and delivery by each
other party thereto, each of the Operative Agreements to which it is or is
to be party when duly executed and delivered will, to the extent each such
document is entered into by WTC in its individual capacity, constitute the
legal, valid and binding obligation of WTC in its individual capacity
enforceable against it in such capacity in accordance with its respective
terms, except as such enforceability may be limited by bankruptcy,
insolvency, reorganization or other similar laws or equitable principles of
general application to or affecting the enforcement of creditors' rights
(regardless of whether enforceability is considered in a proceeding in
equity or at law), and the performance by WTC in its individual capacity of
any of its obligations thereunder does not contravene any lease, regulation
or contractual restriction binding on WTC in its individual capacity;
(B) assuming due authorization, execution and delivery by each other
party thereto, each of the Operative Agreements to which it is or is to be
party when duly executed and delivered will, to the extent each such
document is entered into by the Owner Trustee in its trust capacity,
constitute the legal, valid and binding obligation of the Owner Trustee
enforceable against it in such capacity in accordance with its respective
terms, except as such enforceability may be limited by bankruptcy,
insolvency, reorganization or other similar laws or equitable principles of
general application to or affecting the enforcement of creditors' rights
(regardless of whether enforceability is considered in a proceeding in
equity or at law), and the performance by the Owner Trustee of any of its
obligations thereunder does not contravene any lease, regulation or
contractual restriction binding on the Owner Trustee;
(iv) there are no pending or, to its knowledge, threatened actions or
proceedings against WTC before any court or administrative agency which
would materially and adversely affect the ability of WTC, either in its
individual capacity or as the Owner Trustee, as the case may be, to perform
its obligations under the Operative Agreements to which it is or is to be
party;
(v) it shall give the Lessee, the Indenture Trustee and each Owner
Participant at least thirty (30) days' prior written notice in the event of
any change in its chief executive office or name;
(vi) neither the execution and delivery by it, either in its
individual capacity or as the Owner Trustee, as the case may be, of any of
the Operative Agreements to which it is or is to be a party, requires on
the part of WTC in its individual capacity or any of its Affiliates the
consent or approval of or the giving of notice to, the registration with,
or the taking of any other action in respect of, any Federal or Delaware
governmental authority or agency governing its banking or trust powers; and
(vii) on the Certificate Closing Date, the proceeds arising from the
issuance and sale of the Certificates shall be free of Lessor's Liens
attributable to WTC in its individual capacity and on the Delivery Date the
Owner Trustee shall be holding whatever title to the Aircraft as was
conveyed to it by the Lessee, the Aircraft shall be free of Lessor's Liens
attributable to WTC in its individual capacity and WTC in its individual
capacity is a Citizen of the United States.
(b) Lessor's Liens. WTC, in its individual capacity, further
represents, warrants and covenants that there are no Lessor's Liens
attributable to it in its individual capacity and that there will not be any
such Lessor's Liens on the Certificate Closing Date or the Delivery Date. The
Owner Trustee, in its trust capacity, and at the cost and expense of the
Lessee, covenants that it will in its trust capacity promptly, and in any
event within 30 days after the same shall first become known to it, take such
action as may be necessary to discharge duly any Lessor's Liens attributable
to it in its trust capacity. WTC, in its individual capacity, covenants and
agrees that it will at its own expense take such action as may be necessary to
duly discharge and satisfy in full, promptly, and in any event within 30 days
after the same shall first become known to it, any Lessor's Liens attributable
to it in its individual capacity which may arise at any time after the date of
this Agreement.
(c) Indemnity for Lessor's Liens. WTC, in its individual capacity,
agrees to indemnify and hold harmless the Lessee, the Indenture Trustee, each
Owner Participant and the Pass Through Trustee and the Owner Trustee from and
against any loss, cost, expense or damage which may be suffered by the Lessee,
the Indenture Trustee, the Owner Participants, the Pass Through Trustee or the
Owner Trustee as a result of the failure of WTC to discharge and satisfy any
Lessor's Liens attributable to it in its individual capacity, as described in
Section 7.04(b) hereof.
(d) Securities Act. None of WTC, the Owner Trustee or any Person
authorized by either of them to act on its behalf has directly or indirectly
offered or sold or will directly or indirectly offer or sell any interest in
the Lessor's Estate, or in any similar security relating to the Lessor's
Estate, or in any security the offering of which for purposes of the
Securities Act of 1933, as amended, would be deemed to be part of the same
offering as the offering of the aforementioned securities to, or solicited any
offer to acquire any of the same from, any Person.
(e) Actions With Respect to Lessor's Estate, Etc. Neither WTC, in
its individual capacity, nor the Owner Trustee will take any action to subject
the Lessor's Estate or the trust established by the Trust Agreement, as
debtor, to the reorganization or liquidation provisions of the Bankruptcy Code
or any other applicable bankruptcy or insolvency statute.
Section 7.05. Representations, Warranties and Covenants of the
Indenture Trustee. (a) The Indenture Trustee in its individual capacity (other
than as the Pass Through Trustee) represents on the date hereof and as of the
Certificate Closing Date and the Delivery Date as follows:
(i) it is a national banking association duly organized and validly
existing in good standing under the laws of the United States of America
and has the power and authority to enter into and perform its obligations
under the Indenture, this Agreement and the other Operative Agreements to
which it is a party and to authenticate the Certificates to be delivered on
the Certificate Closing Date;
(ii) the Indenture and this Agreement and the other Operative
Agreements to which it is or is to be a party, and the authentication of
the Certificates to be delivered on the Certificate Closing Date, have been
duly authorized by all necessary corporate action on its part, and neither
the execution and delivery thereof nor its performance of any of the terms
and provisions thereof will violate any Federal or Utah law or regulation
relating to its banking or trust powers or contravene or result in any
breach of, or constitute any default under, its articles of association or
by-laws;
(iii) each of the Indenture and this Agreement, and the other
Operative Agreements to which it is or is to be a party, has been duly
executed and delivered or, in the case of the Operative Agreements
identified in Section 4.02(c) hereof, will on the Delivery Date be executed
and delivered by it and, assuming that each such agreement is the legal,
valid and binding obligation of each other party thereto, is (or will be,
as the case may be), the legal, valid and binding obligation of the
Indenture Trustee, enforceable against the Indenture Trustee in accordance
with its terms except as such enforceability may be limited by bankruptcy,
insolvency, reorganization or other similar laws or equitable principles of
general application to or affecting the enforcement of creditors' rights
(regardless of whether enforceability is considered in a proceeding in
equity or at law);
(iv) neither the execution and delivery by it of the Indenture and
this Agreement and the other Operative Agreements to which it is or is to
be a party, nor the performance by it of any of the transactions
contemplated hereby or thereby, requires the consent or approval of, the
giving of notice to, the registration with, or the taking of any other
action in respect of, any Federal or state governmental authority or agency
governing its banking and trust powers; and
(v) on the Certificate Closing Date, the Indenture Trustee holds
the Liquid Collateral on behalf of the Owner Trustee and on the Delivery
Date, the Indenture Trustee will hold the original counterparts of the
Lease and the Lease Supplement.
(b) Indenture Trustee's Liens. The Indenture Trustee, in its
individual capacity, further represents, warrants and covenants that there are
no Indenture Trustee's Liens attributable to it in its individual capacity and
that there will not be any Indenture Trustee's Liens on the Certificate
Closing Date or, as at and following the Delivery Date, the Aircraft. The
Indenture Trustee, in its individual capacity, covenants and agrees that it
will at its own expense take such action as may be necessary to duly discharge
and satisfy in full, promptly, and in any event within 30 days, after the same
shall first become known to it, any Indenture Trustee's Liens.
(c) Indemnity for Indenture Trustee's Liens. The Indenture Trustee,
in its individual capacity, agrees to indemnify and hold harmless the Lessee,
the Owner Participants, the Owner Trustee and the Pass Through Trustee from
and against any loss, cost, expense or damage which may be suffered by the
Lessee, the Indenture Trustee, the Owner Participants, the Owner Trustee or
the Pass Through Trustee as a result of the failure of the Indenture Trustee
to discharge and satisfy any Indenture Trustee's Liens attributable to it in
its individual capacity, as described in Section 7.05(b) hereof.
Section 7.06. Indenture Trustee's Notice of Default. The Indenture
Trustee agrees to give each Owner Participant notice of any Default promptly
upon a Responsible Officer of the Indenture Trustee having actual knowledge
thereof.
Section 7.07. Releases from Indenture. The Indenture Trustee
covenants and agrees, for the benefit of the Lessee and each Owner
Participant, to execute and deliver the instruments of release from the Lien
of the Indenture which it is required to execute and deliver in accordance
with the provisions of Article XIV of the Indenture, and each Owner
Participant agrees, for the benefit of the Lessee, to cause the Owner Trustee
to request the Indenture Trustee to execute and deliver such instruments of
release.
Section 7.08. Covenant of Quiet Enjoyment. Each of the Owner
Participants, the Indenture Trustee, the Pass Through Trustee and the Owner
Trustee covenants and agrees as to itself only that, so long as no Event of
Default under the Lease has occurred and is continuing, neither such Owner
Participant (or the Owner Trustee, the Indenture Trustee or the Pass Through
Trustee, as the case may be) nor any Person lawfully claiming through such
Owner Participant (or the Owner Trustee, the Indenture Trustee or the Pass
Through Trustee, as the case may be) shall interfere with the Lessee's right
quietly to enjoy the Aircraft during the Term without hindrance or disturbance
by such Owner Participant (or the Owner Trustee, the Indenture Trustee or the
Pass Through Trustee as the case may be), provided, however, that the Lessor
shall not be liable for any act or omission of the Indenture Trustee or any
other Person claiming through the Indenture Trustee.
Section 7.09. Pass Through Trustee's Representations and Warranties.
The Pass Through Trustee, in its individual capacity (except with respect to
clause (iii) below), represents and warrants as of the date hereof (except as
otherwise provided), as of the Pass Through Closing Date, the Certificate
Closing Date and the Delivery Date that:
(i) it is a national banking association duly organized and validly
existing in good standing under the laws of the United States of America
and has the power and authority to enter into and perform its obligations
under the Pass Through Agreement, the Series Supplements, the Intercreditor
Agreement and this Agreement and to execute and authenticate the Pass
Through Certificates to be delivered on the Pass Through Closing Date;
(ii) the execution, delivery and performance of this Agreement, the
Pass Through Agreement and the Series Supplements and the performance of its
obligations hereunder and thereunder (including the execution and
authentication of the Pass Through Certificates to be delivered on the Pass
Through Closing Date) have been fully authorized by all necessary corporate
action on its part, and, subject to (A) the registration of the issuance
and sale of the Pass Through Certificates under the Securities Act, (B)
compliance with any applicable state securities laws and (C) the
qualification of the Pass Through Agreement under the Trust Indenture Act,
neither the execution and delivery thereof nor its performance of any of
the terms and provisions thereof will violate any Federal or Utah law or
regulation relating to its banking or trust powers or contravene or result
in any breach of, or constitute any default under its articles of
association, or bylaws or the provisions of any indenture, mortgage,
contract or other agreement to which it is a party or by which it or its
properties may be bound or affected; and
(iii) each of this Agreement and the Pass Through Agreement has been,
and as of the Pass Through Closing Date the Series Supplements will be, duly
executed and delivered by it (in its individual and trust capacities) and,
assuming that each such agreement is the legal, valid and binding
obligation of each other party thereto, is or will be, as the case may be,
the legal, valid and binding obligation of the Pass Through Trustee (in its
individual and trust capacities), enforceable in accordance with its
respective terms except as limited by bankruptcy, insolvency, moratorium,
reorganization or other similar laws or equitable principles of general
application to or affecting the enforcement of creditors' rights generally
(regardless of whether such enforceability is considered in a proceeding in
equity or at law).
Section 7.10. Survival of Representations, Warranties and Covenants.
The representations, warranties and covenants of each Owner Participant, the
Owner Trustee (in its individual or trust capacity), the Pass Through Trustee
(in its individual or trust capacity), the Subordination Agent (in its
individual capacity or trust capacity) and the Indenture Trustee (in its
individual or trust capacity) provided for in this Article 7, and their
respective obligations under any and all of them, shall survive the Closings,
the delivery of the Aircraft and the expiration or other termination of this
Agreement, and the other Operative Agreements.
Section 7.11. Lessee's Assumption of the Certificates. (a) Subject
to compliance by the Lessee with all of its obligations under the Operative
Agreements, each of the Owner Participants, the Owner Trustee, the Indenture
Trustee, the Pass Through Trustee and the Lessee covenants and agrees that if
the Lessee elects to terminate the Lease and to purchase the Aircraft pursuant
to Section 4.02(a)(A), (D), (E) or (F) of the Lease, and so long as no Event
of Default shall have occurred and be continuing then, upon compliance with
the applicable provisions of said Section 4.02(a) of the Lease, the Owner
Trustee will transfer to the Lessee, without recourse or warranty (except as
to the absence of Lessor's Liens) but subject to the Lien of the Indenture,
all of the Owner Trustee's right, title and interest in and to the Aircraft,
and if the Lessee, in connection with such purchase, elects pursuant to
Section 4.02(a)(A), (D), (E) or (F) of the Lease to assume the obligations of
the Owner Trustee to the Indenture Trustee and the Holders under the
Indenture, the Certificates and hereunder, each of the parties shall execute
and deliver appropriate documentation permitting the Lessee to assume such
obligations on the basis of full recourse to the Lessee, maintaining for the
benefit of the Holders the security interest in the Aircraft created by the
Indenture, and upon compliance with the provisions of this Section 7.11
releasing the Owner Participants and the Owner Trustee from all obligations in
respect of the Certificates, the Indenture and all other Operative Agreements
except any obligations which shall have arisen (or with respect to events
which shall have occurred) prior to such assumption and take all such other
actions as are reasonably necessary to permit such assumption by the Lessee.
(b) In connection with such assumption:
(i) the Lessee shall execute and deliver an instrument satisfactory
in form and substance to the Indenture Trustee (A) pursuant to which the
Lessee irrevocably and unconditionally assumes and undertakes, with full
recourse to the Lessee, to pay, satisfy and discharge when and as due (at
the stated maturity thereof, by acceleration or otherwise) the principal
of, Make-Whole Premium, if any, interest and all other sums owing on all
Outstanding Certificates (or on the Lessee's substituted obligations) in
accordance with their terms and to punctually perform and observe all of
the covenants and obligations hereunder and under the Indenture and the
Certificates (as the same may be amended in connection with such
assumption) to be performed or observed by the Owner Trustee and (B) which
contains amendments to the Indenture, in form and substance satisfactory to
the Indenture Trustee and the Holders, that incorporate therein such
provisions from the Lease and this Agreement as may be appropriate,
including, without limitation, events of default substantially identical in
scope and effect to those set forth in the Lease and covenants
substantially identical to the covenants of the Lessee hereunder and under
the Lease;
(ii) the instrument referred to in paragraph (i) of this Section
7.11(b), any Uniform Commercial Code financing statements relating thereto,
and any other documents which shall be necessary (or reasonably requested
by the Indenture Trustee) to establish the Lessee's title to and interest
in the Aircraft or to reflect the substitution of the Lessee for the Owner
Trustee under the Operative Agreements or to continue the perfection of the
security interests in the Aircraft and the other rights, Property and
interests included in the Trust Indenture Estate for the benefit of the
Holders (or the Lessee's substituted obligations) shall be filed in such
form, manner and places as are necessary or, in the reasonable opinion of
the Indenture Trustee, advisable for such purpose;
(iii) the Indenture Trustee shall have received an insurance report
dated the effective date of such assumption of an independent insurance
broker and certificates of insurance, each in form and substance
satisfactory to the Indenture Trustee, as to the due compliance as of the
effective date of such assumption with the terms of Article 13 of the Lease
(as it relates to the Indenture Trustee) relating to the insurance with
respect to the Aircraft;
(iv) the Indenture Trustee shall have received evidence that as of
the effectiveness of the assignment on the date of such assumption the
Aircraft is free and clear of all Liens other than the Lien of the
Indenture and other Permitted Liens;
(v) the Indenture Trustee shall have received a certificate from
the Lessee that no Event of Default shall have occurred and be continuing
as of the effective date of such assumption; and
(vi) the Indenture Trustee shall have received (A) from counsel for
the Lessee (who may be the Lessee's General Counsel) a legal opinion, in
form and substance satisfactory to the Indenture Trustee (w) with respect
to the compliance of the assumption contemplated hereby with the terms,
provisions and conditions hereof, (x) with respect to the due
authorization, execution, delivery, validity and enforceability of the
instrument referred to in paragraph (i) of this Section 7.11(b), (y) with
respect to the continued perfection of the first and prior Lien and security
interest in the Aircraft for the benefit of the Holders of the Certificates
(or the Lessee's substituted obligations) referred to in paragraph (ii) of
this Section 7.11(b) and (z) with respect to the continued availability of
the benefits of Section 1110 of the Bankruptcy Code to the Indenture
Trustee for the benefit of the Holders with respect to the Aircraft after
giving effect to such assumption, (B) from counsel to the Indenture Trustee
and Special Aviation Counsel, a legal opinion comparable to the respective
opinions delivered on the Certificate Closing Date or the Delivery Date, as
the case may be, with such changes therein as may be appropriate in light
of such assumption, and (C) in the case of each opinion described in clause
(A) or (B) above, covering such additional matters as the Indenture Trustee
shall reasonably request.
(c) The Lessee shall pay all reasonable expenses (including
reasonable fees and expenses of counsel) of the Owner Participants, the Owner
Trustee and the Indenture Trustee in connection with such assumption.
Section 7.12. Indebtedness of Owner Trustee. So long as the
Indenture is in effect, the Owner Trustee, not in its individual capacity, but
solely as trustee under the Trust Agreement, shall not incur any indebtedness
for borrowed money except as expressly contemplated herein or in any other
Operative Agreement (excluding the Tax Indemnity Agreements) and shall not
engage in any business or other activity other than the transactions
contemplated herein or in any other Operative Agreement (excluding the Tax
Indemnity Agreements) and all necessary or appropriate activity related
thereto.
Section 7.13. Compliance with Trust Agreement, Etc. Each of the
Owner Participants, WTC and the Owner Trustee agrees with the Lessee, the
Indenture Trustee and the Pass Through Trustee that so long as the Lien of the
Indenture shall be in effect it will (i) comply with all of the terms of the
Trust Agreement applicable to it in its respective capacity, the noncompliance
with which would materially adversely affect any such party and (ii) not take
any action, or cause any action to be taken, to amend, modify or supplement
any provision of the Trust Agreement in a manner that would adversely affect
any such party without the prior written consent of such party. The Owner
Trustee confirms for the benefit of the Lessee, the Indenture Trustee and the
Pass Through Trustee that it will comply with the provisions of Article 2 of
the Trust Agreement. Notwithstanding anything else to the contrary in the
Trust Agreement, so long as the Lease remains in effect, the Owner
Participants agree not to terminate or revoke the trust created by the Trust
Agreement without the consent of the Lessee and (so long as the Indenture
shall not have been discharged) the Indenture Trustee.
Section 7.14. Subordination Agent's Representations, Warranties and
Covenants. (a) Representations and Warranties. The Subordination Agent
represents and warrants as of the date hereof (except as otherwise provided),
as of the Pass Through Closing Date, the Certificate Closing Date and the
Delivery Date that:
(i) it is a national banking association duly organized and validly
existing in good standing under the laws of the United States of America
and has the corporate power and authority to enter into and perform its
obligations under this Agreement, the Liquidity Facilities and the
Intercreditor Agreement;
(ii) the execution, delivery and performance of this Agreement, each
of the Liquidity Facilities and the Intercreditor Agreement and the
performance of its obligations hereunder and thereunder have been fully
authorized by all necessary corporate action on its part, and, neither the
execution and delivery thereof nor its performance of any of the terms and
provisions thereof will violate any Federal or Utah law or regulation
relating to its banking or trust powers or contravene or result in any
breach of, or constitute any default under its articles of association, or
bylaws or the provisions of any indenture, mortgage, contract or other
agreement to which it is a party or by which it or its properties may be
bound or affected;
(iii) each of this Agreement, the Liquidity Facilities and the
Intercreditor Agreement has been duly executed and delivered by it and,
assuming that each such agreement is the legal, valid and binding
obligation of each other party thereto, is or will be, as the case may be,
the legal, valid and binding obligation of the Subordination Agent,
enforceable in accordance with its respective terms except as limited by
bankruptcy, insolvency, moratorium, reorganization or other similar laws or
equitable principles of general application to or affecting the enforcement
of creditors' rights generally (regardless of whether such enforceability
is considered in a proceeding in equity or at law);
(iv) there are no Taxes payable by the Subordination Agent imposed by
the State of Utah or any political subdivision or taxing authority thereof
in connection with the execution, delivery and performance by the
Subordination Agent of this Agreement, any of the Liquidity Facilities or
the Intercreditor Agreement (other than franchise or other taxes based on
or measured by any fees or compensation received by the Subordination Agent
for services rendered in connection with the transactions contemplated by
the Intercreditor Agreement or any of the Liquidity Facilities), and there
are no Taxes payable by the Subordination Agent imposed by the State of
Utah or any political subdivision thereof in connection with the
acquisition, possession or ownership by the Subordination Agent of any of
the Certificates other than franchise or other taxes based on or measured
by any fees or compensation received by the Subordination Agent for
services rendered in connection with the transactions contemplated by the
Intercreditor Agreement or any of the Liquidity Facilities);
(v) there are no pending or threatened actions or proceedings
against the Subordination Agent before any court or administrative agency
which individually or in the aggregate, if determined adversely to it,
would materially adversely affect the ability of the Subordination Agent to
perform its obligations under this Agreement, the Intercreditor Agreement
or any Liquidity Facility;
(vi) the Subordination Agent has not directly or indirectly offered
any Certificate for sale to any Person or solicited any offer to acquire
any Certificates from any Person, nor has the Subordination Agent
authorized anyone to act on its behalf to offer directly or indirectly any
Certificate for sale to any Person, or to solicit any offer to acquire any
Certificate from any Person; and the Subordination Agent is not in default
under any Liquidity Facility; and
(vii) the Subordination Agent is not directly or indirectly
controlling, controlled by or under common control with either Owner
Participant, the Owner Trustee, any Underwriter or the Lessee.
(b) Covenants. (i) The Subordination Agent agrees not to amend any
Liquidity Facility without the consent of the Lessee (so long as no Event of
Default shall have occurred and be continuing) and of each Owner Participant
(such consents not to be unreasonably withheld).
(ii) In connection with the deposit in the applicable Cash Account of
amounts drawn pursuant to any Downgrade Drawing under a Liquidity Facility, the
Subordination Agent agrees, so long as no Event of Default shall have occurred
and be continuing, to pay to the Lessee promptly following each Regular
Distribution Date any Investment Earnings on the amount so deposited which
remain after application of such Investment Earnings pursuant to Section 2.06
of such Liquidity Facility to the interest payable on such Downgrade Drawing
under Section 3.07 of such Liquidity Facility. Capitalized terms used in this
Section shall have the meanings specified in the Intercreditor Agreement.
ARTICLE 8
TAXES
Section 8.01. Lessee's Obligation to Pay Taxes. (a) Generally. The
Lessee agrees promptly to pay when due, and to indemnify and hold each
Indemnitee harmless from all license, recording, documentary, registration and
other fees and all taxes (including, without limitation, income, gross
receipts, sales, rental, use, value added, property (tangible and intangible),
ad valorem, excise and stamp taxes), fees, levies, imposts, recording duties,
charges, assessments or withholdings of any nature whatsoever, together with
any assessments, penalties, fines, additions to tax or interest thereon
(individually, a "Tax," and collectively called "Taxes"), however imposed
(whether imposed upon any Indemnitee, the Lessee, all or any part of the
Aircraft, Airframe, any Engine or any Part, the Lessor's Estate, the Trust
Indenture Estate, Rent or otherwise), by any Federal, state or local
government or taxing authority in the United States, or by any government or
taxing authority of a foreign country or of any political subdivision or
taxing authority thereof or by a territory or possession of the United States
or an international taxing authority, upon or with respect to, based upon or
measured by:
(i) the Aircraft, the Airframe, any Engine or any Part;
(ii) the location, replacement, conditioning, refinancing, control,
purchase, registration, reregistration, repossession, improvement,
maintenance, redelivery, manufacture, acquisition, purchase, financing,
mortgaging, ownership, acceptance, rejection, delivery, non-delivery,
leasing, subleasing, transport, insuring, inspection, registration,
assembly, abandonment, preparation, installment, possession, use,
operation, return, presence, storage, repair, transfer of title,
modification, rebuilding, import, export, alteration, addition, replacement,
assignment, overhaul, transfer of registration or registration, imposition
of any lien, sale or other disposition of the Aircraft, Airframe, any
Engine or any Part thereof or interest therein;
(iii) the rentals (including Basic Rent and Supplemental Rent),
receipts or earnings arising from the Operative Agreements or from the
purchase, financing, ownership, delivery, leasing, possession, use,
operation, return, storage, transfer of title, sale or other disposition of
the Aircraft, the Airframe or any part thereof or interest therein;
(iv) any or all of the Operative Agreements;
(v) the Property, or the income or other proceeds received with
respect to the Property, held by the Owner Trustee under the Trust
Agreement or after an Event of Default under the Lease, or by the Indenture
Trustee under the Indenture;
(vi) otherwise with respect to or by reason of the transactions
described in or contemplated by the Operative Agreements;
(vii) the payment of the principal or interest or other amounts
payable with respect to the Certificates;
(viii) the Certificates or the Pass Through Certificates or the
issuance, acquisition, or refinancing thereof or the beneficial interests
in the Lessor's Estate or the creation thereof under the Trust Agreement; or
(ix) any assumption by the Lessee pursuant to Section 7.11 of this
Agreement and Section 2.12 of the Indenture.
(b) Exceptions. The indemnity provided for in Section 8.01(a) shall
not extend to any of the following:
(i) With respect to an Indemnitee, Taxes based upon, measured by or
with respect to the net or gross income, items of tax preference or minimum
tax or excess profits, receipts, value added (but only to the extent such
value added tax is in the nature of an income tax), capital, franchise, net
worth or conduct of business or other similarly-based Taxes of such
Indemnitee (other than any Taxes in the nature of sales, use, transfer,
excise, rental, license, ad valorem, property or other similarly based
Taxes) (the "Income Taxes"); provided, however that the provisions of this
paragraph (b)(i) shall not exclude from the indemnity described in Section
8.01(a) hereof, any Income Taxes to the extent such Income Taxes are
imposed by any jurisdiction in which the Indemnitee would not be subject to
such Income Taxes but for, or would be subject to such Income Taxes solely
as a result of, (x) the operation, registration, location, presence, or use
of the Aircraft, Airframe, any Engine or any Part thereof, in such
jurisdiction or (y) the place of incorporation or principal office or the
activities of the Lessee or any sublessee in such jurisdiction (it being
understood that any such indemnity would be payable only to the extent of
the net harm incurred by the Indemnitee from such Income Taxes, taking into
account any incremental current Tax benefit in another tax jurisdiction
resulting from payment of such Income Taxes); provided, further, that the
provisions of this paragraph (b)(i) relating to Income Taxes shall not
exclude from the indemnity described in Section 8.01(a) hereof any Income
Taxes for which the Lessee would be required to indemnify an Indemnitee (x)
so that any payment under the Operative Agreements, otherwise required to
be made on an After-Tax Basis, is made on an After-Tax Basis or (y)
pursuant to the last sentence of Section 8.02, 8.05, 9.02 or 9.05 of this
Agreement;
(ii) [Reserved];
(iii) Taxes arising out of or measured by acts, omissions, events or
periods of time (or any combination of the foregoing) which occur after
(and are not attributable to acts, omissions or events occurring
contemporaneously with or prior to) (A) the payment in full of all amounts
payable by the Lessee pursuant to and in accordance with the Operative
Agreements, or the earlier discharge in full of the Lessee's payment
obligations under and in accordance with the Lease and the Operative
Agreements (and the Certificates in the case of the Indenture Trustee or
the Trust Indenture Estate if the Lessee shall have assumed the Certificates
pursuant to Section 7.11 of this Agreement), and (B) the earliest of (x) the
expiration of the Term of the Lease and return of the Aircraft in
accordance with Article 12 of the Lease, (y) the termination of the Lease
in accordance with the applicable provisions of the Lease and return of the
Aircraft in accordance with the Lease, or (z) the termination of the Lease
in accordance with the applicable provisions of the Lease and the transfer
of all right, title and interest in the Aircraft to the Lessee pursuant to
its exercise of any of its purchase options set forth in Section 4.02(a) of
the Lease, except that, notwithstanding anything in this Section 8.01(b) to
the contrary, Taxes incurred in connection with the exercise of any
remedies pursuant to Article 17 of the Lease following the occurrence of an
Event of Default shall not be excluded from the indemnity described in
Section 8.01(a) hereof;
(iv) As to the Owner Trustee, Taxes imposed against the Owner Trustee
upon or with respect to any fees for services rendered in its capacity as
Owner Trustee under the Trust Agreement or, as to the Indenture Trustee,
Taxes imposed against the Indenture Trustee upon or with respect to any
fees received by it for services rendered in its capacity as Indenture
Trustee under the Indenture;
(v) Taxes imposed on an Indemnitee that would not have been imposed
but for the willful misconduct or gross negligence of such Indemnitee
(other than gross negligence or willful misconduct not actually committed
by but instead imputed to such Indemnitee by reason of such Indemnitee's
participation in the transactions contemplated by the Operative Agreements)
or the breach by such Indemnitee of any representation, warranty or
covenant contained in the Operative Agreements or any document delivered in
connection therewith (unless attributable to a breach of representation,
warranty or covenant of the Lessee);
(vi) Taxes imposed on the Owner Trustee or any Owner Participant or
any successor, assign or Affiliate thereof which became payable by reason
of any voluntary or involuntary transfer or disposition by such Indemnitee
subsequent to the Delivery Date, including revocation of the Trust, of any
interest in some or all of the Aircraft, Airframe, Engines or Parts thereof
or its interest in the Lessor's Estate, other than (A) Taxes that result
from transfers or dispositions which occur while an Event of Default under
the Lease has occurred and is continuing at the time of such transfer or
disposition or (B) Taxes that result from any transfer or disposition
pursuant to the terms of the Lease;
(vii) Taxes imposed on any Owner Participant for which the Lessee is
obligated to indemnify such Owner Participant pursuant to the Tax Indemnity
Agreements;
(viii) Notwithstanding anything herein to the contrary, Taxes imposed
on a successor, assign or other transferee (including, without limitation,
a transferee which is a new lending office of an original Indemnitee) of
any entity or Person which on the Certificate Closing Date is an Indemnitee
(for purposes of this clause (vii), an "original Indemnitee") or such
original Indemnitee to the extent that such Taxes exceed the amount of
Taxes that would have been imposed and would have been indemnifiable
pursuant to Section 8.01(a) hereof had there not been a succession,
assignment or other transfer by such original Indemnitee of any such
interest of such Indemnitee in the Aircraft or any Part thereof, any
interest in or under any Operative Agreement, or any proceeds thereunder
(it being understood that for purposes of determining the amount of
indemnification that would have been due to such original Indemnitee with
respect to a net income Tax, it shall be assumed that such original
Indemnitee would be subject to taxation on its income at the highest
marginal statutory rate applicable to it); provided, however, that the
exclusion provided by this clause (vii) shall not apply in the case of a
succession, assignment or other transfer (1) while an Event of Default
under the Lease or the Indenture has occurred and is continuing; (2)
required by any provision of the Operative Agreements (other than pursuant
to Section 7.02 hereof) or (3) in the case of any Owner Participant, to any
Tax other than an Income Tax;
(ix) [Reserved];
(x) any Taxes which have been included in the Purchase Price;
(xi) any Taxes which would not have been imposed but for a Lessor's
Lien with respect to any Owner Participant or an Indenture Trustee's Lien
with respect to the Indenture Trustee;
(xii) any Taxes imposed on any Owner Participant or any person who is
a "disqualified person", within the meaning of Section 4975(e)(2) of the
Code, or a "party in interest", within the meaning of Section 3(14) of
ERISA, by virtue of such person's relationship to such Owner Participant as
the result of any prohibited transaction, within the meaning of Section 406
of ERISA or Section 4975(c)(1) of the Code, occurring with respect to the
purchase or holding of any Pass Through Certificate (or any funded
participation therein) (i) over which purchase or holding such Owner
Participant or any Affiliate thereof has discretion or control (other than
in the capacity of a directed trustee or custodian), or (ii) by an employee
benefit plan, within the meaning of Section 3(3) of ERISA, or individual
retirement account or plan subject to Section 4975 of the Code with respect
to which such Owner Participant (or any Affiliate thereof) has the power,
directly or indirectly, to appoint or terminate, or to negotiate the terms
of the management agreement with, the person or persons having discretion
or control (other than in the capacity of a directed trustee or custodian),
over such purchase or holding; and
(xiii) Taxes imposed by any jurisdiction to the extent they would
have been imposed on the Lessor or any Owner Participant for activities in
such jurisdiction unrelated to the transactions contemplated by the
Operative Agreements.
(c) Withholding. The Pass Through Trustee shall withhold any Taxes
required to be withheld on payments to any holder of a Pass Through
Certificate who is a Non-U.S. Person except to the extent that such a holder
of a Pass Through Certificate has furnished evidence to the Pass Through
Trustee sufficient under applicable law to entitle such holder of a Pass
Through Certificate to any exemption from or reduction in the rate of
withholding on interest claimed by such holder of a Pass Through Certificate.
The Indenture Trustee shall withhold any Taxes required to be withheld on any
payment to a Holder pursuant to Section 5.09 of the Indenture. If the
Indenture Trustee or the Pass Through Trustee fails to withhold a Tax required
to be withheld with respect to any Holder of a Certificate or any holder of a
Pass Through Certificate or any claim is otherwise asserted by a taxing
authority against the Owner Trustee or the Owner Participants for any
withholding tax, the Lessee will indemnify the Owner Trustee and the Owner
Participants (without regard to the exclusions set forth in Section 8.01(b)
hereof) on an After-Tax Basis against any such Taxes required to be withheld
and any interest and penalties with respect thereto, along with any other
costs (including reasonable attorney's fees) incurred in connection with any
such claim. The Indenture Trustee or the Pass Through Trustee, as the case
may be, in its individual capacity (and without recourse to the Trust
Indenture Estate), shall indemnify the Lessee (without regard to the
exclusions set forth in Section 8.01(b) hereof) on an After-Tax Basis for any
payment the Lessee shall have made pursuant to the preceding sentence.
Section 8.02. After-Tax Basis. The amount which the Lessee shall be
required to pay with respect to any Tax indemnified against under Section 8.01
shall be an amount sufficient to restore the Indemnitee, on an After-Tax
Basis, to the same position such party would have been in had such Tax not
been incurred. If any Indemnitee actually realizes a permanent tax benefit by
reason of the payment of any Tax paid or indemnified against by the Lessee,
such Indemnitee shall promptly pay to the Lessee to the extent such tax
benefit was not previously taken into account in computing such payment, but
not before the Lessee shall have made all payments then due to such Indemnitee
under this Agreement, the Tax Indemnity Agreements and any other Operative
Agreement, an amount equal to the lesser of (x) the sum of such permanent tax
benefit plus any other permanent tax benefit actually realized by such
Indemnitee that would not have been realized but for any payment made by such
Indemnitee pursuant to this sentence and not already paid to the Lessee, and
(y) the amount of the payment made under Sections 8.01 and 8.02 by the Lessee
to such Indemnitee plus the amount of any other payments by the Lessee to such
Indemnitee theretofore required to be made under Sections 8.01 and 8.02 (and
the excess, if any, of the amount described in clause (x) above over the
amount described in clause (y) above shall be carried forward and applied to
reduce pro tanto any subsequent obligations of the Lessee to make payments
pursuant to Section 8.01); provided, however, that notwithstanding the
foregoing portions of this sentence, such Indemnitee shall not be obligated to
make any payment to the Lessee pursuant to this sentence as long as an Event
of Default shall have occurred and be continuing under the Lease. The Lessee
shall reimburse on an After-Tax Basis such Indemnitee for any payment of a tax
benefit pursuant to the preceding sentence (or a tax benefit otherwise taken
into account in calculating the Lessee's indemnity obligation hereunder) to
the extent that such tax benefit is disallowed or reduced in a taxable year
subsequent to the year of such payment (including the expiration of any tax
credit carryovers or carrybacks of such Indemnitee that would not otherwise
have expired).
Section 8.03. Time of Payment. Any amount payable to an Indemnitee
pursuant to this Article 8 shall be paid within 30 days after receipt of a
written demand therefor from such Indemnitee accompanied by a written
statement describing in reasonable detail the basis for such indemnity and the
computation of the amount so payable, provided that in the case of amounts
which are being contested by the Lessee in good faith or by the Indemnitee in
either case pursuant to Section 8.04 hereof, such amount shall be payable 30
days after the time such contest is finally resolved.
Section 8.04. Contests. If a written claim is made against any
Indemnitee for Taxes with respect to which the Lessee is liable for a payment
or indemnity hereunder, such Indemnitee shall promptly give the Lessee notice
in writing of such claim and shall furnish the Lessee with copies of any
requests for information from any taxing authority relating to such Taxes with
respect to which the Lessee may be required to indemnify hereunder; provided,
however, that the failure of an Indemnitee to give such notice or furnish such
copy shall not terminate any of the rights of such Indemnitee under this
Article 8, except to the extent that the Lessee's contest rights have been
materially and adversely impaired by the failure to provide such notice. The
Indemnitee shall in good faith, with due diligence and at the Lessee's
expense, if timely requested in writing by the Lessee, contest (or, at the
Indemnitee's option, require the Lessee to contest in the name of the Lessee,
if permitted by law) the validity, applicability or amount of such Taxes by:
(i) resisting payment thereof if lawful and practicable or not
paying the same except under protest if protest is necessary and proper in
each case so long as non-payment will not result in a material risk of the
sale, forfeiture or loss of, or the creation of a Lien other than a
Lessor's Lien on the Aircraft, Airframe or any Engine or any risk of
criminal liability; or
(ii) if the payment be made, using reasonable efforts to obtain a
refund thereof in appropriate administrative and judicial proceedings.
If the Indemnitee, after reasonable discussion with the Lessee and
consideration in good faith of any suggestion made by the Lessee as to the
method of pursuing such contest, elects to conduct the contest, such
Indemnitee shall determine the manner in which to contest such Taxes, and
shall periodically or upon the Lessee's request advise the Lessee of the
progress of such contest; provided, however, that if the Indemnitee determines
in its sole discretion that such participation will not adversely affect such
Indemnitee's contest of any Taxes not indemnified hereunder, the Lessee shall
have the right to participate in such contest, including, among other rights,
the right to attend governmental or judicial conferences (to the extent
unrelated issues are not discussed) concerning such claim and the right to
review and approve all submissions to any governmental or other authority
insofar as they relate to the Tax for which indemnification is sought.
Notwithstanding the preceding sentences of this Section 8.04, such Indemnitee
shall not be required to take or continue any action unless the Lessee shall
have (i) agreed in writing to pay and shall pay the Indemnitee on demand and
on an After-Tax Basis for any liability or reasonable expense which such
Indemnitee may incur as a result of contesting such Taxes including without
limitation (y) reasonable attorneys' and accountants' fees and (z) the amount
of any interest, penalty or additions to tax which may ultimately be payable
as the result of contesting such Taxes, (ii) delivered to the Indemnitee a
written acknowledgment of the Lessee's obligation to such Indemnitee pursuant
to this Agreement to the extent that the contest is not successful and of the
inapplicability of any exclusion or defenses thereto, provided, however, that
such acknowledgement shall not preclude the Lessee from raising defenses to
liability under this Agreement if a decision in such contest is rendered which
clearly articulates the cause of such Tax and the cause, as so articulated, is
not one for which the Lessee is responsible to pay an indemnity hereunder,
(iii) made all payments and indemnities (other than contested payments and
indemnities) then due to the Indemnitee hereunder or with respect to any of the
transactions contemplated by or under the Operative Agreements. In no event
shall such Indemnitee be required or the Lessee permitted to contest pursuant
to this Section 8.04 the imposition of any Tax for which the Lessee is
obligated to indemnify any Indemnitee hereunder unless (i) such Indemnitee
shall have received an opinion of independent tax counsel, at the Lessee's
expense, selected by such Indemnitee and reasonably satisfactory to the Lessee
("Tax Counsel") to the effect that a reasonable basis exists for contesting
such claim, (ii) such Indemnitee shall have determined that such contest will
not result in any material risk of loss, sale or forfeiture of, or the
creation of a Lien (other than Lessor's Liens) on, the Aircraft or any part
thereof or interest thereon or in a risk of criminal liability, or adversely
affect the Trust Indenture Estate, (iii) if an Event of Default shall have
occurred and be continuing, the Lessee shall have provided security for its
obligations hereunder reasonably satisfactory to the Indemnitee, (iv) if such
contest shall be conducted in a manner requiring payment of the claim in
advance, the Lessee shall have advanced sufficient funds, on an interest free
basis, to make the payment required, and agreed to indemnify the Indemnitee
against any additional net adverse tax consequences on an After-Tax Basis to
such Indemnitee of such advance and (v) the issue shall not be the same as an
issue previously contested hereunder and decided adversely, unless the
Indemnitee shall have received, at the Lessee's sole expense, a written
opinion, in form and substance reasonably satisfactory to such Indemnitee, of
Tax Counsel, to the effect that the applicable circumstances or law has
changed and, in light thereof, there is substantial authority within the
meaning of Section 6662(d) of the Code, as interpreted by the Treasury
regulations thereunder, or under similar principles of state or foreign law (as
the case may be) for contesting such claim and (vi) the amount of the indemnity
payments the Lessee would be required to make with respect to such adjustment,
when aggregated with similar adjustments that could be raised in other taxable
years of such Indemnitee is at least $50,000.
The Indemnitee shall not appeal any judicial decision unless it
receives an opinion of independent tax counsel, at the Lessee's sole expense,
selected by such Indemnitee and reasonably satisfactory to the Lessee to the
effect that a reasonable basis continues to exist for the Indemnitee's
position.
Nothing contained in this Section 8.04 shall require any Indemnitee to
contest or continue to contest, or permit Lessee to contest, a claim which such
Indemnitee would otherwise be required to contest pursuant to this Section
8.04, if such Indemnitee shall waive payment by Lessee of any amount that
might otherwise be payable by Lessee under this Article 8 in connection with
such claim.
Section 8.05. Refunds. Upon receipt by an Indemnitee of a refund of
all or any part of any Taxes which the Lessee shall have paid for such
Indemnitee or for which the Lessee shall have reimbursed or indemnified such
Indemnitee, and provided there shall not have occurred and be continuing any
Event of Default by the Lessee hereunder or under the Lease (in which case
payment shall not be made to the Lessee until such Event of Default shall have
been cured), such Indemnitee shall pay to the Lessee an amount equal to the
amount of such refund less (x) reasonable expenses not previously reimbursed,
(y) all payments then due to such Indemnitee under this Article 8 and (z)
Taxes imposed with respect to the accrual or receipt thereof, including
interest received attributable thereto, plus any tax benefit actually realized
by such Indemnitee as a result of any payment by such Indemnitee made pursuant
to this sentence; provided, however, that such amount shall not be payable (a)
before such time as the Lessee shall have made all payments or indemnities
then due and payable to such Indemnitee under this Article 8 and (b) to the
extent that the amount of such payment would exceed (i) the amount of all
prior payments by the Lessee to such Indemnitee pursuant to this Article 8
less (ii) the amount of all prior payments by such Indemnitee to the Lessee
pursuant to this Article 8.
Any subsequent loss of such refund or tax benefit shall be treated as
a Tax subject to indemnification under the provisions of this Article 8 (in
the case of any such tax benefit, without regard to Section 8.01(b) hereof).
Section 8.06. Lessee's Reports. In case any report or return is
required to be made with respect to any obligation of the Lessee under this
Article 8, the Lessee shall make such report or return, except for any such
report or return that the Indemnitee has notified the Lessee that it intends
to file, in such manner as will show the ownership of the Aircraft in the
Owner Trustee and shall send a copy of the applicable portions of such report
or return to the Indemnitee and the Owner Trustee or will notify the
Indemnitee of such requirement and make such report or return in such manner
as shall be satisfactory to such Indemnitee and the Owner Trustee. The Lessee
will provide such information reasonably available to the Lessee as the
Indemnitee may reasonably require from the Lessee to enable the Indemnitee to
fulfill its tax filing requirements with respect to the transactions
contemplated by the Operative Agreements (without duplication of the
requirements of Section 3 of the Tax Indemnity Agreements) and any audit
information request arising from any such filing. The Indemnitee will provide
such information reasonably available to it as the Lessee may reasonably
require from such Indemnitee to enable the Lessee to fulfill its tax filing
requirements with respect to the transactions contemplated by the Operative
Agreements and any audit information request arising from such filing;
provided that in no event shall any Indemnitee be required to provide copies
of any of its tax returns. The Lessee shall hold the Indemnitee harmless from
and against any liabilities, including penalties, additions to tax, fines and
interest, imposed upon or incurred by such Indemnitee to the extent directly
attributable to any insufficiency or inaccuracy in any return, statement, or
report prepared by the Lessee or information supplied by the Lessee, or
directly attributable to the Lessee's failure to supply reasonably available
information to such Indemnitee as required by this Section 8.06.
Section 8.07. Survival of Obligations. The representations,
warranties, indemnities and agreements of the Lessee provided for in this
Article 8 and the Lessee's obligations under any and all of them shall survive
the expiration or other termination of the Operative Agreements.
Section 8.08. Payment of Taxes. With respect to any Tax otherwise
indemnifiable hereunder by the Lessee and applicable to the Aircraft,
Airframe, any Engine or Parts, to the extent permitted by the applicable
federal, state, local or foreign law, the Lessee shall pay such tax directly
to the relevant Taxing authority and file any returns or reports required with
respect thereto; provided, however, that the Lessee shall not make any
statements or take any action which would indicate that the Lessee or any
Person other than the Owner Trustee or the Owner Participants are the owner
of the Aircraft, the Airframe, any Engine or any Part or which would otherwise
be inconsistent with the terms of the Lease and the position thereunder of the
Owner Trustee and the Owner Participants. Copies of such returns or reports,
together with evidence of payment of any tax due, shall be sent by the Lessee
to the Owner Participants within thirty (30) days after the date of each
payment by the Lessee of any Tax.
Section 8.09. Reimbursements by Indemnitees Generally. If, for any
reason, Lessee is required to make any payment with respect to any Taxes
imposed on any Indemnitee in respect of the transactions contemplated by the
Operative Agreements or on the Aircraft, the Airframe, the Engines, the Parts
of any part thereof, which Taxes are not the responsibility of the Lessee with
respect to such Indemnitee, then such Indemnitee shall pay to the Lessee
within 30 days of the Lessee's demand therefor an amount which equals the
amount actually paid by the Lessee with respect to such Taxes.
ARTICLE 9
GENERAL INDEMNITY
Section 9.01. Generally. (a) The Lessee agrees to indemnify each
Indemnitee against and agrees to protect, defend, save and keep harmless each
Indemnitee from any and all liabilities, obligations, losses, damages
(including if, as a result of an Indenture Event of Default described in
Section 7.01(a)(i) of the Indenture, the Indenture Trustee shall have sold all
or any portion of the Indenture Estate and the proceeds thereof were less than
an amount equal to accrued and unpaid Basic Rent on the date of sale plus the
Stipulated Loss Value as of such date, damages equal to such shortfall
together with interest thereon to the extent permitted by law at the Debt Rate
until such shortfall is paid in full), penalties, claims, actions, suits,
costs, disbursements and expenses (including reasonable legal fees and
expenses and all costs and expenses relating to amendments, supplements,
adjustments, consents, refinancings and waivers under the Operative Agreements
except as otherwise provided in Section 10.01(c)(i) or Article 15 hereof) of
every kind and nature (whether or not any of the transactions contemplated by
this Agreement are consummated) (individually, an "Expense," collectively,
"Expenses"), which may be imposed on, incurred or suffered by or asserted
against any Indemnitee, in any way relating to, based on or arising out of:
(i) this Agreement, the Lease, the Indenture, the Pass Through
Agreement, the Trust Agreement, the Intercreditor Agreement, the Liquidity
Facilities, the Bills of Sale or any other Operative Agreement or any other
document entered into in connection herewith or any sublease or transfer or
any transactions contemplated hereby or thereby;
(ii) the operation, possession, use, non-use, maintenance, storage,
overhaul, delivery, non-delivery, control, repair or testing of the
Aircraft, Airframe, or any Engine or any engine used in connection with the
Airframe, or any part thereof by the Lessee, any sublessee or any other
Person whatsoever, whether or not such operation, possession, use, non-use,
maintenance, storage, overhaul, delivery, non-delivery, control, repair or
testing is in compliance with the terms of the Lease, including without
limitation, claims for death, personal injury or property damage or other
loss or harm to any Person whatsoever, including, without limitation, any
passengers, shippers or other Persons wherever located, and claims relating
to any laws, rules or regulations, including, without limitation,
environmental control, noise and pollution laws, rules or regulation;
(iii) the manufacture, design, sale, return, purchase, acceptance,
rejection, delivery, non-delivery, condition, repair, modification,
servicing, rebuilding, airworthiness, registration, reregistration, import,
export, performance, non-performance, lease, sublease, transfer,
merchantability, fitness for use, alteration, substitution or replacement
of any Airframe, Engine, or Part under the Lease, the GTA or the Engine
Warranty Assignment or other transfer of use or possession, or other
disposition of the Aircraft, the Airframe, any Engine or any Part
including, without limitation, latent and other defects, whether or not
discoverable, strict tort liability, and any claims for patent, trademark
or copyright infringement;
(iv) any breach of or failure to perform or observe, or any other
non-compliance with, any condition, covenant or agreement to be performed,
or other obligations of the Lessee under any of the Operative Agreements,
or the falsity or inaccuracy of any representation or warranty of the
Lessee in any of the Operative Agreements (other than representations and
warranties in the Tax Indemnity Agreements);
(v) the Collateral Account and the Liquid Collateral;
(vi) the enforcement of the terms of the Operative Agreements and the
administration of the Trust Indenture Estate; and
(vii) the offer, issuance, sale or delivery of any Certificate or any
Pass Through Certificate, or any refunding or refinancing thereof, or
interest in the Lessor's Estate or the Trust Agreement or any similar
interest or in any way relating to or arising out of the Trust Agreement
and the Lessor's Estate, the Indenture or the Trust Indenture Estate
(including, without limitation, any claim arising out of the Securities Act
of 1933, as amended, the Securities Exchange Act of 1934, as amended, or
any other federal or state statute, law or regulation, or at common law or
otherwise relating to securities), or the action or inaction of the Owner
Trustee or Indenture Trustee as trustees, in the manner contemplated by
this Agreement, the Indenture, the Indenture and Security Agreement
Supplement or the Trust Agreement and in the case of any Owner Participant,
its obligations arising under Section 6.01 of the Trust Agreement.
The foregoing indemnity by the Lessee is intended to include and cover, but is
not limited to, any Expense to which the Indemnitees may be subject as a
result of their respective ownership or leasing of any interest in the
Aircraft, Airframe, any Engine or Part during the Term, whether or not in the
Lessee's possession or control, insofar as such Expense relates to any
activity or event whatsoever involving such item while it is under lease to
the Lessee (or after termination of the Lease in connection with the exercise
of remedies thereunder to the extent that such Expense is attributable to the
transactions contemplated hereby and by the other Operative Agreements), and
such Expense does not fall within any of the exceptions listed in Section
9.01(b) hereof.
(b) Exceptions. The indemnity provided for in Section 9.01(a) shall
not extend to any Expense of any Indemnitee to the extent it:
(i) would not have occurred but for the willful misconduct or gross
negligence of such Indemnitee;
(ii) after the Delivery Date, is in respect of the Aircraft, and is
attributable to acts or events which occur after the Aircraft is no longer
part of the Lessor's Estate or leased under the Lease or, if the Aircraft
remains a part of the Lessor's Estate, after the expiration of the Term and
any holdover period under Section 12.05 of the Lease (other than pursuant
to Article 17 of the Lease, in which case the indemnity provided in Section
9.01(a) hereof shall survive for so long as Lessor or the Indenture Trustee
shall be entitled to exercise remedies under such Article 17), or to acts
or events which occur after return of possession of the Aircraft by the
Lessee in accordance with the provisions of the Lease but in any such case
only to the extent not fairly attributable to acts or omissions of the
Lessee prior to expiration of the Term and any holdover period under
Section 12.05 of the Lease, including without limitation the Lessee's
failure to fully discharge all of its obligations under the Lease or the
other Operative Agreements;
(iii) is a Tax, whether or not the Lessee is required to indemnify
therefor pursuant to Article 8 hereof or pursuant to the Tax Indemnity
Agreements;
(iv) is a cost or expense required to be paid by such Owner
Participant or its permitted transferees (and not by the Lessee) pursuant
to this Agreement or any other Operative Agreement (other than such Owner
Participant's obligations under Section 6.01 of the Trust Agreement) and
for which the Lessee is not otherwise obligated to reimburse such Owner
Participant, directly or indirectly;
(v) would not have been incurred by such Indemnitee if such
Indemnitee had not been in breach of its representations or warranties, or
had not defaulted in the observance and performance of the terms and
provisions required to be observed and performed by it, in this Agreement,
the Lease, the Indenture, the Trust Agreement or any other Operative
Agreement to which it is a party unless such breach or default shall be a
result of the breach or default of any of the foregoing by the Lessee or
another Indemnitee;
(vi) [reserved];
(vii) in the case of any Owner Participant, Lessor's Liens to the
extent attributable to such Owner Participant; in the case of the Owner
Trustee, Lessor's Liens to the extent attributable to the Owner Trustee;
and in the case of the Indenture Trustee, Indenture Trustee's Liens;
(viii) is in the case of any Owner Participant or the Owner Trustee,
to the extent attributable to the offer or sale by such Indemnitee after
the Certificate Closing Date of any interest in the Aircraft, the Lessor's
Estate or the Trust Agreement or any similar interest (including an offer
or sale resulting from bankruptcy or other proceedings for the relief of
debtors in which such Indemnitee is the debtor), unless in each case such
offer or sale shall occur (w) in connection with a Refinancing, (x) as a
result of exercise of remedies under Article 17 of the Lease, (y) during a
period when an Event of Loss has occurred or (z) in connection with the
termination of the Lease or action or direction of the Lessee pursuant to
the Lease; or
(ix) which is incurred by any Owner Participant or any person who is
a "disqualified person", within the meaning of Section 4975(e)(2) of the
Code, or a "party in interest", within the meaning of Section 3(14) of
ERISA, by virtue of such person's relationship to such Owner Participant,
as the result of any prohibited transaction, within the meaning of Section
406 of ERISA or Section 4975(c)(1) of the Code, occurring with respect to
the purchase or holding of any Pass Through Certificate (i) over which
purchase or holding such Owner Participant or any Affiliate thereof has
discretion or control (other than in the capacity of a directed trustee or
custodian), or (ii) by an employee benefit plan, within the meaning of
Section 3(3) of ERISA, or individual retirement account or plan subject to
Section 4975 of the Code with respect to which such Owner Participant (or
any Affiliate thereof) has the power, directly or indirectly, to appoint or
terminate, or to negotiate the terms of the management agreement with, the
person or persons having discretion or control (other than in the capacity
of a directed trustee or custodian), over such purchase or holding.
Section 9.02. After-Tax Basis. The amount which the Lessee shall be
required to pay with respect to any Expense indemnified against under Section
9.01 shall be an amount sufficient to restore the Indemnitee, on an After-Tax
Basis, to the same position such party would have been in had such Expense not
been incurred. If any Indemnitee actually realizes a permanent Tax benefit by
reason of the payment of such Expense paid or indemnified against by the
Lessee which was not considered in the computation thereof, such Indemnitee
shall promptly pay to the Lessee, but not before the Lessee shall have made
all payments theretofore due such Indemnitee under this Agreement, the Tax
Indemnity Agreements and any other Operative Agreement, an amount equal to the
lesser of (x) the sum of such Tax benefit plus any other permanent Tax benefit
actually realized by such Indemnitee as the result of any payment made by such
Indemnitee pursuant to this sentence and (y) the amount of such payment
pursuant to this Section 9.02 by the Lessee to such Indemnitee plus the amount
of any other payments by the Lessee to such Indemnitee theretofore made
pursuant to this Section 9.02 less the amount of any payments by such
Indemnitee to the Lessee theretofore made pursuant to this Section 9.02 (and
the excess, if any, of the amount described in clause (x) above over the
amount described in clause (y) above shall be carried forward and applied to
reduce pro tanto any subsequent obligations of the Lessee to make payments
pursuant to this Section 9.02), it being intended that no Indemnitee should
realize a net Tax benefit pursuant to this Section 9.02 unless the Lessee
shall first have been made whole for any payments by it to such Indemnitee
pursuant to this Section 9.02; provided, however, that notwithstanding the
foregoing portions of this sentence, such Indemnitee shall not be obligated to
make any payment to the Lessee pursuant to this sentence so long as an Event
of Default shall have occurred and be continuing. Any Taxes that are imposed
on any Indemnitee as a result of the disallowance or reduction of such Tax
benefit referred to in the next preceding sentence in a taxable year
subsequent to the year of allowance and utilization by such Indemnitee
(including the expiration of any tax credit carryovers or carrybacks of such
Indemnitee that would not otherwise have expired) shall be indemnifiable
pursuant to the provisions of Section 8.01 hereof without regard to Section
8.01(b) hereof.
Section 9.03. Subrogation. Upon the payment in full of any indemnity
pursuant to this Article 9 by the Lessee (but not earlier), the Lessee shall be
subrogated to any right of the Indemnitee, other than with respect to any of
such Indemnitee's insurance policies or in connection with any indemnity claim
the Person indemnified may have against any other Indemnitee in respect of the
matter against which such indemnity has been made.
Section 9.04. Notice and Payment. Each Indemnitee and the Lessee
shall give prompt written notice one to the other of any liability of which
such party has knowledge for which the Lessee is, or may be, liable under this
Article 9; provided, however, that failure to give such notice shall not
terminate any of the rights of the Indemnitees under this Article 9, except
(with respect to such Indemnitee) to the extent that the Lessee has been
materially prejudiced by the failure to provide such notice. Unless otherwise
provided in the Operative Agreements, any amount payable to an Indemnitee
pursuant to this Article 9 shall be paid within 30 days after receipt of a
written demand therefor from such Indemnitee accompanied by a written statement
describing in reasonable detail the basis for such indemnity and the
computation of the amount so payable.
Section 9.05. Refunds. If any Indemnitee shall obtain a recovery of
all or any part of any amount which the Lessee shall have paid to such
Indemnitee or for which the Lessee shall have reimbursed such Indemnitee under
this Article 9, and provided there shall not have occurred a Payment Default
or an Event of Default (in which case payment shall not be made to the Lessee
until such Payment Default or Event of Default shall have been cured) such
Indemnitee shall pay to the Lessee the amount of any such recovery, including
interest received with respect to the recovery, net of any Taxes paid or
payable as a result of the receipt of the recovery and interest, plus any net
additional permanent income tax benefits actually realized by Indemnitee as
the result of any payment made pursuant to this sentence less any reasonable
costs and expense of any Indemnitee not reimbursed by the Lessee; provided,
however, that such amount shall not be payable (a) before such time as the
Lessee shall have made all payments or indemnities then due and payable to
such Indemnitee under this Article 9 or (b) to the extent that the amount of
such payment would exceed the amount of all prior payments by the Lessee to
such Indemnitee pursuant to this Article 9, less the amount of all prior
payments by such Indemnitee to the Lessee pursuant to this Article 9. Any
subsequent loss of such recovery or tax benefit shall be subject to
indemnification under Article 8 or this Article 9, as the case may be.
Section 9.06. Defense of Claims. The Lessee or its insurers shall
have the right (in each such case at the Lessee's sole expense) to investigate
or, provided that (i) the Lessee or its insurers shall not reserve the right
to dispute liability with respect to any insurance policies pursuant to which
coverage is sought, (ii) in the case of the Lessee, no Event of Default shall
have occurred and be continuing and (iii) the Lessee shall have first
acknowledged in writing to such Indemnitee the Lessee's obligation to
indemnify such Indemnitee hereunder in respect of such claim, defend any claim
covered by insurance for which indemnification is sought pursuant to this
Article 9 and each Indemnitee shall cooperate with the Lessee or its insurers
with respect thereto, and provided, further, the Lessee shall not be entitled
to assume and control the defense of any such claim if and to the extent such
Indemnitee reasonably objects to such control on the ground that an actual or
potential material conflict of interest exists where it is advisable for such
Indemnitee to be represented by separate counsel. Subject to the immediately
foregoing sentence, where the Lessee or the insurers under a policy of
insurance maintained by the Lessee undertake the defense of an Indemnitee with
respect to such a claim, no additional legal fees or expenses of such
Indemnitee in connection with the defense of such claim shall be indemnified
hereunder unless the fees or expenses were incurred at the written request of
the Lessee or such insurers. Subject to the requirement of any policy of
insurance applicable to a claim, an Indemnitee may participate at its own
expense at any judicial proceeding controlled by the Lessee or its insurers
pursuant to the preceding provisions, provided that such party's participation
does not, in the opinion of the independent counsel appointed by the Lessee or
its insurers to conduct such proceedings, interfere with such control; and
such participation shall not constitute a waiver of the indemnification
provided in this Section 9.06. No Indemnitee shall enter into any settlement
or other compromise with respect to any claim described in this Section 9.06
without the prior written consent of the Lessee, which consent shall not
unreasonably be withheld or delayed, unless such Indemnitee waives its right
to be indemnified under this Article 9 with respect to such claim.
Section 9.07. Survival of Obligations. The representations,
warranties, indemnities and agreements of the Lessee provided for in this
Article 9 and the Lessee's obligations under any and all of them shall survive
the expiration or other termination of this Agreement, the Tax Indemnity
Agreements, the Trust Agreement, the Indenture, the Engine Warranty
Assignment, the Lease and the other Operative Agreements but, as to such
indemnities, only with respect to losses, liabilities, obligations, damages,
penalties, claims, actions, suits, costs, Expenses and disbursements caused by
events occurring or existing (or fairly attributable to the Lessee's acts or
omissions) prior to or incurred in the process of (i) the return or
disposition of the Aircraft under Article 12 or Article 17 of the Lease, or
(ii) the termination of the Lease or the Indenture or, if later, the return of
the Aircraft.
Section 9.08. Effect of Other Indemnities. The Lessee's obligations
under the indemnities provided for in this Agreement shall be those of a
primary obligor whether or not the Person indemnified shall also be
indemnified with respect to the same matter under the terms of this Agreement,
the Lease, the Indenture, the Trust Agreement, or any other document or
instrument, and the Person seeking indemnification from the Lessee pursuant to
any provision of this Agreement may proceed directly against the Lessee
without first seeking to enforce any other right of indemnification.
Section 9.09. Interest. The Lessee will pay to each Indemnitee on
demand, to the extent permitted by applicable law, interest on any amount of
indemnity not paid when due pursuant to this Article 9 until the same shall be
paid, at the Past Due Rate.
ARTICLE 10
TRANSACTION COSTS
Section 10.01. Transaction Costs and Other Costs. (a) Transaction
Costs. The Owner Participants shall pay (or reimburse the Lessee if the
Lessee shall have previously made such payment) all fees and expenses of the
following persons relating to the public offering of the Pass Through
Certificates contemplated by the Underwriting Agreement and related to the
transactions contemplated hereby on the Certificate Closing Date and the
Delivery Date: (i) the fees and expenses of counsel for each Owner
Participant; (ii) the fees and expenses of the transaction documentation
counsel for the Lessee and counsel for the Owner Trustee, the Indenture
Trustee, the Subordination Agent, the Pass Through Trustee, each Liquidity
Provider and the Underwriters (other than those fees, expenses and
disbursements payable by the Underwriters pursuant to the Underwriting
Agreement); (iii) the fees and expenses of Daugherty, Fowler & Peregrin; (iv)
any initial fees and expenses of the Pass Through Trustee and each Liquidity
Provider and the fees and expenses of the Owner Trustee, the Subordination
Agent and the Indenture Trustee; (v) any compensation, commissions and
discounts payable to the Underwriters pursuant to the Underwriting Agreement;
(vi) the fees, if any, incurred in printing the Pass Through Certificates;
(vii) the fees and expenses incurred in connection with printing any amendment
to the Registration Statement on Form S-3 bearing Registration No. 333-07691,
printing any Preliminary Prospectus or Prospectus (as such terms are defined
in the Underwriting Agreement) for the offering of the Pass Through
Certificates; (viii) the fees and expenses of Arthur Andersen LLP; (ix) the
fees and expenses of Moody's and S&P; (x) the fees and expenses (including
computer time-sharing charges) of First Chicago Leasing Corporation; (xi) the
reasonable out-of-pocket expenses of each Owner Participant, including,
without limitation, any amounts paid in connection with any appraisal report
prepared on behalf of the Owner Participants; (xii) reimbursement to each
Owner Participant, the Owner Trustee, the Indenture Trustee, the Subordination
Agent, each Liquidity Provider and the Pass Through Trustee for any and all
fees, expenses and disbursements of the character referred to above or
otherwise incurred in connection with the negotiation, preparation, execution
and delivery, filing and recording of the Operative Agreements and the
documents contemplated thereby, including, without limitation, travel expenses
and disbursements which shall have been paid by such party; (xiii) printing
and duplicating expenses and all fees, taxes and other charges payable in
connection with the recording or filing on or before the Delivery Date of the
instruments described in this Agreement; (xiv) initial fees, initial expenses,
initial disbursements and the initial costs of distributing the Certificates
(but not the continuing fees, expenses, disbursements and costs of
distribution) of WTC, as lessor under the Lease and as Owner Trustee under the
Trust Agreement and with respect to the administration of the Lease and the
Lessor's Estate, of the Indenture Trustee as trustee under the Indenture with
respect to the administration of the Trust Indenture Estate and of the
Subordination Agent acting under the Intercreditor Agreement; and (xv) any
other amounts approved by the Lessee and the Owner Participants. The fees and
expenses described in clauses (ii) through (x) of this paragraph shall be
allocable to the Owner Participants under this Agreement (1) to the extent
incurred specifically with respect to the Owner Participants, and (2) to the
extent such fees and expenses are incurred but are not specifically
attributable to the Owner Participants, in the proportion that the principal
amount of the Certificates bears to the total amount of the Pass Through
Certificates.
Each Owner Participant, the Owner Trustee and the Lessee acknowledge
that the percentages for Basic Rent, Stipulated Loss Value and Termination
Value set forth in the Lease have been prepared assuming the aggregate amount
payable by the Owner Participants pursuant to the preceding paragraph is 1.33%
of the Purchase Price (the "Estimated Expense Amount"); provided, however,
that in no event shall the sum of (i) each Owner Participant's Commitment,
(ii) the Transaction Costs to be paid by the Owner Participants pursuant to
Section 2.03 hereof, and (iii) the Transaction Costs to be paid by the Owner
Participant pursuant to Section 10.01 hereof exceed, in the aggregate,
$10,546,625 for each Owner Participant, unless otherwise agreed by such Owner
Participant. To the extent that the payment by each Owner Participant of
Transaction Costs would cause the sum described in the immediately preceding
sentence to exceed $10,546,625, the Lessee shall be obligated to pay the
Transaction Costs constituting the First Chicago Leasing Corporation fee and
the Davis Polk & Wardwell fee to the extent of such excess and the Owner
Participants shall have no obligation to pay such excess.
(b) Continuing Expenses. The continuing fees, expenses and
disbursements (including reasonable counsel fees and expenses) of the entity
acting as Owner Trustee, as lessor under the Lease and as Owner Trustee under
the Trust Agreement with respect to the administration of the Lease and the
Lessor's Estate and the continuing fees, expenses and disbursements (including
reasonable counsel fees and expenses and initial fees relating to the
establishment of any replacement trustee) of the Indenture Trustee, as trustee
under the Indenture with respect to the administration of the Trust Indenture
Estate, the continuing fees, expenses and disbursements (including reasonable
counsel fees and initial fees relating to the establishment of a replacement
trustee) of the Pass Through Trustee and the Subordination Agent and the
continuing fees, expenses and disbursements (including reasonable counsel fees
and initial fees relating to the establishment of a replacement liquidity
provider) of the Liquidity Providers under each Liquidity Facility shall be
paid as Supplemental Rent by the Lessee, including without limitation any
amounts payable to the Indenture Trustee or on account of requests by the
Indenture Trustee for indemnification under Article XI of the Indenture.
(c) Amendments, Supplements and Appraisal. Without limitation of the
foregoing, the Lessee agrees:
(i) to pay as Supplemental Rent to the Owner Trustee, the Owner
Participants, the Owner Participant Guarantors, the Indenture Trustee, the
Subordination Agent, the Liquidity Providers and the Pass Through Trustee
all costs and expenses (including reasonable legal fees and expenses)
incurred by any of them in connection with (a) any Default or Event of
Default and any enforcement or collection proceedings resulting therefrom,
(b) the enforcement of the obligations of the Lessee hereunder or under the
other Operative Agreements and the enforcement of this Section 10.01,
including, without limitation, the entering into or giving or withholding
of any amendments or supplements or waivers or consents, including without
limitation, any amendment, supplement, waiver or consent resulting from any
work-out, restructuring or similar proceeding relating to the performance
or nonperformance by the Lessee of its obligations under the Operative
Agreements or (c) any amendment, supplement, waiver or consent (whether or
not entered into) under this Agreement, the Lease, the Indenture, the
Certificates, the Tax Indemnity Agreements or any other Operative Agreement
or document or instrument delivered pursuant to any of them, which
amendment, supplement, waiver or consent is required by any provision of
any Operative Agreement or is requested by the Lessee or necessitated by
the action or inaction of the Lessee; provided, however, that the Lessee
shall not be responsible for fees and expenses incurred in connection with
the offer, sale or other transfer (whether pursuant to Article 5 of the
Trust Agreement or otherwise) by the Owner Participants or the Owner
Trustee after the Certificate Closing Date of any interest in the Aircraft,
the Lessor's Estate or the Trust Agreement or any similar interest (and the
Owner Participants shall be severally (not jointly) responsible to the
extent of their respective Equity Percentage for all such fees and
expenses, unless relating to any such transfer by an Owner Participant in
which case such Owner Participant shall be solely responsible for making
such payments), unless such offer, sale or transfer shall occur (A) during
a period when an Event of Default has occurred and is continuing under the
Lease, (B) during a period following an Event of Loss or (C) in connection
with the termination of the Lease or action or direction of the Lessee
pursuant to Section 4.02 or Article 10 of the Lease; and
(ii) to pay the fees, costs and expenses of all appraisers involved
in an independent appraisal of the Aircraft to the extent required under
Section 4.03 of the Lease.
ARTICLE 11
SUCCESSOR OWNER TRUSTEE
Section 11.01. Appointment of Successor Owner Trustee. (a)
Resignation and Removal. The Owner Trustee or any successor Owner Trustee may
resign or may be removed by a Majority in Interest of Owner Participants, and
a successor Owner Trustee may be appointed and a Person may become Owner
Trustee under the Trust Agreement only in accordance with the provisions of
Section 3.11 of the Trust Agreement and the provisions of paragraphs (b) and
(c) of this Section 11.01.
(b) Conditions to Appointment. The appointment in any manner of a
successor Owner Trustee pursuant to Section 3.11 of the Trust Agreement shall
be subject to the following conditions:
(i) Such successor Owner Trustee shall be a Citizen of the United
States;
(ii) Such successor Owner Trustee shall be a bank or a trust company
having combined capital, surplus and undivided profits of at least
$100,000,000 or a bank or trust company fully guaranteed by a direct or
indirect parent thereof having a combined capital, surplus and undivided
profits of at least $100,000,000;
(iii) Such appointment shall not violate any provisions of the
Transportation Code or any applicable rule or regulation of the applicable
regulatory agency or body of any other jurisdiction in which the Aircraft
may then be registered or create a relationship which would be in violation
of the Transportation Code or any applicable rule or regulation of the
applicable regulatory agency or body of any other jurisdiction in which the
Aircraft may then be registered;
(iv) Such successor Owner Trustee shall enter into an agreement or
agreements, in form and substance satisfactory to the Lessee, the Owner
Participants, the Pass Through Trustee and the Indenture Trustee whereby
such successor Owner Trustee confirms that it shall be deemed a party to
this Agreement, the Trust Agreement, the Lease, the Lease Supplement, the
Engine Warranty Assignment, the Indenture, the Indenture Supplement and any
other Operative Agreement to which the Owner Trustee is a party and agrees
to be bound by all the terms of such documents applicable to the Owner
Trustee and makes the representations and warranties contained in Section
7.04 hereof (except that it may be duly incorporated, validly existing and
in good standing under the laws of the United States of America or any
State thereof); and
(v) All filings of Uniform Commercial Code financing and
continuation statements, filings in accordance with the Transportation Code
and amendments thereto shall be made and all further actions taken in
connection with such appointment as may be necessary in connection with
maintaining the validity, perfection and priority of the Lien of the
Indenture and the valid and continued registration of the Aircraft in
accordance with the Transportation Code.
(c) Appointment. For so long as the Aircraft remains registered
under the Transportation Code, the Owner Participants agree to appoint
promptly a successor Owner Trustee meeting the requirements of Section
11.01(b) hereof in the event any Owner Participant has knowledge that the
Owner Trustee at any time shall not be a Citizen of the United States.
(d) Revocation. The Owner Participants agree not to revoke and
terminate the Trust Agreement except in accordance with Section 4.01(a) of the
Trust Agreement, as in effect on the date hereof or as amended in accordance
with the terms of the Operative Agreements.
ARTICLE 12
LIABILITIES AND INTERESTS OF THE OWNER PARTICIPANT AND HOLDERS
Section 12.01. Liabilities of the Owner Participants. Each Owner
Participant shall have no obligation or duty to the Lessee or to any Holder
with respect to the transactions contemplated by this Agreement, except those
obligations or duties expressly set forth in this Agreement, the Trust
Agreement, the Tax Indemnity Agreements or any other Operative Agreement to
which such Owner Participant is a party, and neither Owner Participant shall
be liable for the performance by any party hereto of such other party's
obligations or duties hereunder. Under no circumstances shall the Owner
Participant as such be liable to the Lessee, nor shall any Owner Participant
be liable to any Holder, for any action or inaction on the part of the Owner
Trustee or the Indenture Trustee in connection with this Agreement, the
Indenture, the Lease, the Trust Agreement, the Engine Warranty Assignment, any
other Operative Agreement, the ownership of the Aircraft, the administration
of the Lessor's Estate or the Trust Indenture Estate or otherwise, whether or
not such action or inaction is caused by the willful misconduct or gross
negligence of the Owner Trustee or the Indenture Trustee.
Section 12.02. Interest of Holders of Certificates. A Holder of a
Certificate shall have no further interest in, or other right with respect to,
the Trust Indenture Estate when and if the principal and interest on all
Certificates held by such Holder and all other sums payable to such Holder
under this Agreement, under the Indenture and under such Certificates shall
have been paid in full.
ARTICLE 13
OTHER DOCUMENTS
Section 13.01. Consent of Lessee to Other Documents. The Lessee
hereby consents in all respects to the execution and delivery of the Trust
Agreement, the Indenture, the Intercreditor Agreement and the Liquidity
Facilities and to all of the terms of said documents, and the Lessee
acknowledges receipt of an executed counterpart of such documents; it being
agreed that such consent shall not be construed to require the Lessee's
consent to any future supplement to, or amendment, waiver or modification of,
the terms of the Trust Agreement, the Indenture, the Intercreditor Agreement,
the Liquidity Facilities or the Certificates, except that prior to the
occurrence and continuance of an Event of Default, no section of the Indenture,
the Trust Agreement, the Intercreditor Agreement or the Liquidity Facilities
shall be amended or modified in any manner materially adverse to the Lessee
without its consent.
Section 13.02. Further Assurances. The Lessee hereby confirms to
each Owner Participant its covenants set forth in and obligations under the
Lease. The Lessee agrees that, except as otherwise provided in the Indenture,
the Owner Trustee may not enter into any amendment, modification or supplement
of, or give any waiver or consent with respect to, or approve any matter or
document as being satisfactory under the Lease without the prior consent of
the Indenture Trustee and the Owner Participants and that, except as otherwise
provided in the Indenture, upon an Indenture Event of Default, the Indenture
Trustee may act as the Lessor under the Lease to the exclusion of the Owner
Trustee. The Lessee further agrees to deliver to the Indenture Trustee and
the Owner Participants a copy of each notice, statement, request, report or
other communication given or required to be given to the Owner Trustee under
the Lease.
Section 13.03. Pass Through Trustee's and Subordination Agent's
Acknowledgment. The Pass Through Trustee and the Subordination Agent hereby
acknowledge and agree to be bound by all of the terms and conditions of the
Indenture, including without limitation, Section 8.01 thereof regarding the
rights of the Owner Participants to purchase the Certificates under
circumstances specified therein.
ARTICLE 14
NOTICES
Section 14.01. Notices. All notices, demands, declarations and other
communications required by this Agreement shall be in writing and shall be
deemed received (a) if given by telecopier, when transmitted and the
appropriate telephonic confirmation received if transmitted on a Business Day
and during normal business hours of the recipient, and otherwise on the next
Business Day following transmission, (b) if given by certified mail, return
receipt requested, postage prepaid five Business Days after being deposited in
the United States mail and (c) if given by FedEx service (or, if a Default or
Event of Default shall have occurred and be continuing, by other comparable
courier service), when received or personally delivered, addressed:
(a) If to the Lessee, to its office at 2007 Corporate Avenue,
Memphis, Tennessee 38132, Attention: Vice President and Treasurer with a
copy to Senior Vice President and General Counsel at 1980 Nonconnah Drive,
Memphis, Tennessee 38132, telephone (901) 395-3388, facsimile (901)
395-4758; or to such other address as the Lessee shall from time to time
designate in writing to the Lessor, the Indenture Trustee and the Owner
Participants;
(b) If to the Lessor or the Owner Trustee, to its office at 1100
North Market Street, Rodney Square North, Wilmington, Delaware 19890-0001,
Attention: Corporate Trust Administration, telephone (302) 651-1000,
facsimile (302) 651-8882; or to such other address as the Lessor shall from
time to time designate in writing to the Lessee and the Indenture Trustee,
with a copy to the Owner Participants;
(c) (i) If to AmSouth Leasing, Ltd., to its office c/o AmSouth
Leasing Corporation, at 1900 Fifth Avenue North, 8th Floor, Birmingham,
Alabama 35203, Attention: President, Telephone: (205) 326-5789, Facsimile:
(205) 307-4124, or to such other address as such Owner Participant may from
time to time designate in writing to the Lessee and the Indenture Trustee
and (i) If to BTM Funding Corporation, to its office c/o BTM Capital
Corporation, at 125 Summer Street, Boston, Massachusetts 02110, Attention:
Senior Vice President, Telephone: (617) 573-9000, Facsimile: (617)
345-5153, or to such other address as such Owner Participant may from time
to time designate in writing to the Lessee and the Indenture Trustee;
(d) If to the Indenture Trustee, the Subordination Agent or the Pass
Through Trustee, to its office at 79 South Main Street, Salt Lake City,
Utah 84111, Attention: Corporate Trust Department, telephone (801)
246-5053, facsimile (801) 246-5630; or to such other address as the
Indenture Trustee or the Pass Through Trustee, as the case may be, shall
from time to time designate in writing to the Lessor, the Lessee and the
Owner Participants; and
(e) If to a Liquidity Provider, to its office at 125 West 55th
Street, New York, New York 10019, Attention: General Manager, telephone
(212) 541-0600, facsimile (212) 956-5580; or to such other address as a
Liquidity Provider shall from time to time designate in writing to the
Lessor, the Lessee and the Indenture Trustee.
ARTICLE 15
REFINANCING/REOPTIMIZATION
Section 15.01. Refinancing. (a) Subject to the terms and
conditions of this Section 15.01, the Lessee may request the Owner
Participants to participate in up to three refinancings, in whole but not in
part, of the Certificates prior to the end of the Basic Term (a
"Refinancing"), provided, that, such Refinancing may not occur prior to the
fifth anniversary of the Refunding Date. Such Refinancings may be placed in
either the private or public markets and shall be denominated in United States
dollars (or in any other foreign currency so long as there is no foreign
currency risk to the Owner Participants), and shall be on terms that do not
materially adversely affect such Owner Participant. Each Owner Participant
agrees to negotiate promptly in good faith to conclude an agreement with the
Lessee as to the terms of any such Refinancing transaction (including the
terms of any debt to be issued in connection with such refinancing and the
documentation to be executed in connection therewith). Without the consent of
the applicable Owner Participant, the prospectus and other offering materials
relating to any Refinancing in the form of a public offering shall not identify
such Owner Participant and shall not include any financial statements of such
Owner Participant or any Affiliate thereof. In connection with any such
Refinancing in the form of a public offering, the Lessee shall indemnify the
Owner Participants for any liabilities under federal, state or foreign
securities laws resulting from such offering. The aggregate principal amount
of the new Certificates issued in connection with each Refinancing shall be
the same as the aggregate principal amount outstanding on the Certificates
being refinanced.
(b) Notwithstanding anything herein to the contrary, no Refinancing
will be permitted unless each Owner Participant shall have received at least
10 Business Days' prior written notice of the closing date of such
Refinancing, each Owner Participant shall have been provided such longer
period required for a reasonable opportunity to review the relevant
documentation and each Owner Participant shall have determined in good faith
that neither it nor the Owner Trustee shall suffer any loss or expense or bear
any increased risk as a result of such Refinancing (including, without
limitation, any risk with respect to taxes or other adverse consequences to
such Owner Participant including the application of Revenue Procedures 75-21
and 75-28 and Section 467 of the Code) for which it has not been or will not
have been indemnified by the Lessee in a manner reasonably satisfactory to
such Owner Participant.
Prior to the consummation of any Refinancing pursuant to this Section
15.01, the Owner Participants and the Lessee shall agree upon a schedule
setting forth each installment of Basic Rent, Stipulated Loss Values and
Termination Values payable pursuant to the Lease as a result of the
Refinancing in accordance with Section 3.04 of the Lease, and thereafter the
amounts set forth in such schedule shall become the amounts payable under the
Lease. Upon the consummation of the Refinancing, the evidence of indebtedness
issued pursuant to the Refinancing shall be considered "Certificates" for
purposes of this Agreement, the Lease and the Indenture.
(c) Notwithstanding the foregoing, the Owner Participants shall have
no obligation to proceed with any Refinancing transaction as contemplated by
this Section 15.01 unless the Lessee indemnifies the Owner Trustee and the
Owner Participants by agreement in form and substance satisfactory to each of
them, for any liability, obligation (other than the obligation to pay
principal and interest in respect of the refinanced indebtedness), cost or
expense (including, without limitation, reasonable attorneys' fees and
Make-Whole Premium and any other premiums or other amounts due under the
Indenture), including any adverse tax consequences or impact, related to or
arising out of any such Refinancing transaction, except to the extent of
amounts included in Transaction Costs and payable by the Owner Participants as
provided herein.
(d) Each party agrees to take or cause to be taken all requested
action, including, without limitation, the execution and delivery of any
documents and instruments, including, without limitation, amendments or
supplements to the Lease, which may be reasonably necessary or desirable to
effect such Refinancing, including, in the case of the Owner Participants,
direction to the Owner Trustee by the Owner Participants to prepay the
Certificates then outstanding; provided, however, that such Refinancing shall
be subject to the satisfaction of each of the following conditions:
(i) Payment of principal, accrued interest, Make-Whole Premium and
breakage costs, if any, and all other sums due and owing on the Certificates
payable under the Indenture;
(ii) Payment in full of all other amounts then due and owing by the
Lessee under this Agreement, the Indenture, the Lease, the Trust Agreement,
and the Certificates then outstanding shall have been made by the Lessee;
(iii) Such party shall have received such opinions of counsel
(including, without limitation, an opinion received by the Owner
Participants from independent tax counsel reasonably satisfactory to the
Lessee that such Refinancing shall not result in any adverse tax
consequences to the Owner Participants, unless the Lessee shall have agreed
to provide an indemnity in respect thereof reasonably satisfactory in form
and substance to the Owner Participants), certificates and other documents
as it may reasonably request, each in form and substance reasonably
satisfactory to such party;
(iv) All authorizations, approvals and consents which in the
reasonable judgment of each Owner Participant are necessary for such
Refinancing shall have been obtained;
(v) The Lessee shall have provided or agreed to provide to each
Owner Participant, as Supplemental Rent under the Lease, sufficient funds
to pay any breakage costs, Make-Whole Premium and any other amounts due
under the Indenture;
(vi) The satisfaction or waiver by each other party to this
Agreement of the conditions set forth in this Section 15.01 to such party's
obligations under this Section 15.01;
(vii) No Event of Default shall have occurred and be continuing or
would
occur immediately after giving effect to such Refinancing; and
(viii) The documentation relating to such Refinancing shall permit the
Lessee to place the Refinancing loan certificates with an ERISA Plan. The
Lessee shall not indemnify any Owner Participant, or any of such Owner
Participant's Affiliates, assigns, officers, directors, employees, agents
and servants, for any Taxes, within the meaning of Section 8 hereof, or
Expenses, within the meaning of Section 9 hereof, arising under or in
connection with any "prohibited transaction" within the meaning of Section
406 of ERISA or Section 4975 of the Code, if the sole underwriter or the
manager or co-manager of the underwriting syndicate or the selling or
placement agent of the Refinancing loan certificates has an exemption from
the prohibited transaction rules under Section 406 of ERISA and Section 4975
of the Code with respect to pass through certificates, such as Prohibited
Transaction Exemption 90-24 or any other comparable exemption, unless such
exemption is not available or is not valid with respect to such Refinancing
loan certificates. If such exemption is not available or is not valid,
then the Lessee shall indemnify such Owner Participant pursuant to, and to
the extent provided for, under Sections 8 and 9 hereof for Taxes and
Expenses arising under or in connection with any "prohibited transaction",
within the meaning of Section 406 of ERISA or Section 4975 of the Code,
resulting from such placement.
Section 15.02. Reoptimization. (a) If a Change in Tax Rate occurs
prior to the end of the Basic Term, then, subject to the terms and conditions
of this Section 15.02 and Section 3.04 of the Lease, the Owner Participants
may, upon 30 days' prior notice to the Lessee, the Indenture Trustee, the
Owner Trustee and the Holders, elect to modify the schedule of payments of
principal of the certificates issued ("Refinancing Certificates") in
connection with any Refinancing using private debt (not including debt issued
pursuant to an exemption from registration under the Securities Act relying on
Rule 144A promulgated thereunder but otherwise marketed in a manner
substantially similar to securities registered under the Securities Act, and
not including debt issued in connection with any offering of securities
registered under the Securities Act) due on each remaining Rent Payment Date
on or commencing on the Rent Payment Date next succeeding the date mutually
agreed to by the Owner Participants, the Lessee and the Indenture Trustee on
which the Owner Participants shall make such modification (the "Reoptimization
Date"). Promptly after making such modification, the Owner Participants shall
furnish each party hereto written notice of the amounts so recalculated.
(b) Adjustments to Refinancing Certificates. On the Reoptimization
Date, subject to the satisfaction on or before the Reoptimization Date of the
conditions set forth in Section 15.02(c), the Owner Trustee will issue and
deliver and the Indenture Trustee will authenticate, and each holder of a
Refinancing Certificate will accept delivery of, a new Refinancing Certificate
or Refinancing Certificates (in replacement of each Refinancing Certificate
then held by such holder, which Refinancing Certificates shall be surrendered
to the Indenture Trustee for cancellation) containing such changed principal
installments (expressed as a percentage of the original principal amount of
such Refinancing Certificate) as shall have been recalculated by the Owner
Participants, but in the same principal amount as, and containing terms
identical to, except as otherwise contemplated by Section 15.02(d) hereof, the
Refinancing Certificates originally issued in connection with the Operative
Agreements.
(c) Conditions to the Obligations of the Holders of the Refinancing
Certificates on the Reoptimization Date. The obligation of each holder of a
Refinancing Certificate to accept delivery of a new Refinancing Certificate on
the Reoptimization Date, and to surrender on such Reoptimization Date any
Refinancing Certificate then held by it, is subject to the following
conditions precedent having been satisfied on or before the Reoptimization
Date:
(i) the requirements of Section 15.02(d) hereof shall have been
satisfied;
(ii) the following documents, in form and substance satisfactory to
such Holder, shall have been duly authorized, executed and delivered by the
party or parties thereto and shall be in full force and effect: (A) if the
payments of Basic Rent, Stipulated Loss Values and Termination Values with
respect to the Term have been changed, an amendment to the Lease, dated the
Reoptimization Date, (B) an amendment to the Indenture setting forth any
changed repayment schedule to the Refinancing Certificates, dated the
Reoptimization Date and duly filed (or in the process of being so duly
filed) for recordation with the Aeronautics Authority and (C) replacement
Refinancing Certificates; and
(iii) in connection with any Reoptimization each Owner Participant
shall pay or agree to pay severally (not jointly) its Equity Percentage of
all reasonable costs and expenses incurred by the Lessee, the Owner
Trustee, the Indenture Trustee and each Holder of a Refinancing Certificate
(including, without limitation, reasonable legal fees and expenses) in
connection with any such reoptimization.
(d) Payment Schedules. Except as otherwise provided in this Section
15.02 as long as the Refinancing Certificates remain outstanding, the payment
schedules for the Refinancing Certificates shall not be modified.
ARTICLE 16
[RESERVED]
ARTICLE 17
MISCELLANEOUS
Section 17.01. [Reserved].
Section 17.02. Collateral Account. (a) The Indenture Trustee shall
notify the Owner Trustee and the Lessee of any losses incurred on the
Specified Investments in the Collateral Account promptly upon the realization
thereof, as well as any fees, commissions and other costs, Taxes (other than
income taxes) and expenses, if any, incurred by the Indenture Trustee in
connection with its administration of the Collateral Account (collectively,
"Losses"). Promptly upon receipt of such notification but, in any event, no
later than the earlier of the Delivery Date (or, if later, the last day of any
investment period referred to in Section 2.14(b) of the Indenture during which
the Delivery Date occurs) and the 15th day after the Cut-Off Date, the Lessee
shall pay to the Indenture Trustee, on behalf of the Owner Trustee, for
deposit into the Collateral Account, an amount equal to such Losses (net of
any investment earnings).
(b) The Lessee shall pay to the Indenture Trustee, on behalf of the
Owner Trustee (A) on each Payment Date prior to the Delivery Date an amount
equal to the aggregate amount of interest accrued on the Certificates from
(and including) the Certificate Closing Date or previous Payment Date, as the
case may be, to, but excluding, such Payment Date and (B) on the first Payment
Date subsequent to the Delivery Date, interest accrued on the Certificates
from and including the last Payment Date (or, if none, the Certificate Closing
Date), to, but excluding, the Delivery Date. In addition, the Lessee will pay
to the Indenture Trustee on behalf of the Owner Trustee all amounts owed by
the Owner Trustee pursuant to clause (b) of the last paragraph of Section 2.04
of the Indenture.
(c) If the Aircraft has not been purchased by the Owner Trustee on the
Delivery Date, the Lessee agrees to pay to the Indenture Trustee, on behalf of
the Owner Trustee, on the 15th day following the Cut-Off Date the excess, if
any, of the amounts payable under Section 6.02(b)(1) of the Indenture over the
amounts released from the Collateral Account under Section 2.16 of the
Indenture.
(d) All amounts payable by the Lessee pursuant to this Section 17.02
shall be paid to the Indenture Trustee at its principal office at 79 South
Main Street, Salt Lake City, Utah, 84111, Attention: Corporate Trust
Department, or as the Indenture Trustee may otherwise direct within the United
States, by wire transfer of immediately available funds in U.S. Dollars no
later than 10:30 a.m., New York City time, on the due date of such payment.
Section 17.03. Counterparts. This Agreement may be executed by the
parties in separate counterparts, each of which when so executed and delivered
shall be an original, but all such counterparts shall together constitute but
one and the same instrument.
Section 17.04. No Oral Modifications. Neither this Agreement nor
any of its terms may be terminated, amended, supplemented, waived or modified
orally, but only by an instrument in writing signed by the party against which
the enforcement of the termination, amendment, supplement, waiver or
modification is sought. No such written termination, amendment, supplement,
waiver or modification shall be effective unless a signed copy shall have been
delivered to the Owner Trustee and the Indenture Trustee. A copy of each such
termination, amendment, supplement, waiver or modification shall also be
delivered to each other party to this Agreement.
The consent of each of the Pass Through Trustee and the Subordination
Agent, in its capacity as a party to this Agreement and not as a Holder, shall
not be required to modify, amend or supplement this Agreement or to give any
consent, waiver, authorization or approval with respect to this Agreement
under the circumstances in which the consent of the Indenture Trustee would
not be required for such modification, amendment, supplement, consent, waiver
or approval in accordance with Section 8.01(b) of the Indenture, provided that
the Pass Through Trustee shall be entitled to receive an Opinion of Counsel
(as defined in the Pass Through Agreement) necessary, in its sole discretion,
to establish that the Indenture Trustee's consent would not be required under
such circumstances.
Section 17.05. Captions. The table of contents preceding this
Agreement and the headings of the various Articles and Sections of this
Agreement are for convenience of reference only and shall not modify, define,
expand or limit any of the terms or provisions of this Agreement.
Section 17.06. Successors and Assigns. The terms of this Agreement
shall be binding upon, and shall inure to the benefit of, the Lessee and its
successors and permitted assigns, the Subordination Agent and its successors
and permitted assigns, each Owner Participant and its successors and permitted
assigns, the Owner Trustee and its successors as Owner Trustee (and any
additional owner trustee appointed), the Indenture Trustee and its successors
as Indenture Trustee (and any additional indenture trustee appointed) under
the Indenture and the Pass Through Trustee and its successors as Pass Through
Trustee (and any additional pass through trustee appointed).
Section 17.07. Concerning the Owner Trustee, Indenture Trustee and
the Pass Through Trustee. Each of WTC and FSB is entering into this Agreement
solely in their respective capacities (except to the extent otherwise
expressly indicated), in the case of WTC, not in its individual capacity but
solely as Owner Trustee under the Trust Agreement, in the case of FSB, not in
its individual capacity but solely as Indenture Trustee under the Indenture
and as Pass Through Trustee under the Pass Through Agreement, and except as
otherwise expressly provided in this Agreement or in the Lease, the Indenture,
the Pass Through Agreement or the Trust Agreement, neither WTC, nor FSB,
shall be personally liable for or on account of its statements,
representations, warranties, covenants or obligations under this Agreement;
provided, however, that each of WTC and FSB accepts the benefits running to it
under this Agreement, and each agrees that (except as otherwise expressly
provided in this Agreement or any other Operative Agreement to which it is a
party) it shall be liable in its individual capacity for (a) its own gross
negligence or willful misconduct (whether in its capacity as trustee or in its
individual capacity), (b) any breach of representations and warranties or any
breach of covenants made in its individual capacity pursuant to or in
connection with this Agreement or the other Operative Agreements to which it
is a party, (c) any breach, in the case of the Owner Trustee, of its covenants
contained in Sections 3.05 and 3.08 of the Indenture, (d) the failure to use
ordinary care in receiving, handling and disbursing funds, (e) in the case of
the Owner Trustee, Lessor's Liens attributable to it in its individual
capacity, (f) in the case of the Indenture Trustee, Indenture Trustee's Liens
and (g) taxes, fees or other charges on, or based on, or measured by, any
fees, commissions or compensation received by it in connection with the
transactions contemplated by the Operative Agreements.
Section 17.08. Severability. Any provision of this Agreement which
is prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions, and any such
prohibition or unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction.
Section 17.09. Public Release of Information. Subject to applicable
legal requirements (including, without limitation, securities laws
requirements, other regulatory requirements and other legally compelled
disclosures), so long as there shall not have occurred an Event of Default or
Indenture Event of Default, each party to this Agreement shall in each
instance obtain the prior written approval of each other party to this
Agreement concerning the exact text and timing of news releases, articles and
other information releases to the public media concerning any Operative
Agreements.
Section 17.10. Certain Limitations on Reorganization. The Indenture
Trustee and the Pass Through Trustee agree that, if (i) the Owner Trustee
becomes or all or any part of the Lessor's Estate or the trust created by the
Trust Agreement becomes the property of, a debtor subject to the
reorganization provisions of the Bankruptcy Code or any other applicable
bankruptcy or insolvency statutes, (ii) pursuant to any such reorganization
provisions, any Owner Participant is held to have recourse liability to the
debtor, the Owner Trustee or the trustee of the debtor directly or indirectly
on account of any amount payable as Make-Whole Premium, principal or interest
on the Certificates, or any other amount payable on any Certificate that is
provided in the Operative Agreements to be nonrecourse to any Owner
Participant and (iii) the Indenture Trustee actually receives any Recourse
Amount which reflects any payment by the Owner Participants on account of (ii)
above, then the Indenture Trustee, as the case may be, shall promptly refund
to such Owner Participant such Recourse Amount. For purposes of this Section
17.10, "Recourse Amount" means the amount by which the portion of such payment
by such Owner Participant on account of clause (ii) above received by the
Indenture Trustee exceeds the amount which would have been received by the
Indenture Trustee if such Owner Participant had not become subject to the
recourse liability referred to in (ii) above. Nothing contained in this
Section shall prevent the Indenture Trustee from enforcing any individual
obligation (and retaining the proceeds thereof) of any Owner Participant under
this Agreement or any other Operative Agreement to the extent herein or
therein provided, for which such Owner Participant has expressly agreed by the
terms of this Agreement to accept individual responsibility.
Section 17.11. GOVERNING LAW. THIS AGREEMENT SHALL IN ALL RESPECTS
BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK, INCLUDING ALL MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE, WITHOUT
GIVING EFFECT TO PRINCIPLES OF CONFLICTS OF LAWS AND IS BEING DELIVERED IN NEW
YORK.
Section 17.12. Section 1110 Compliance. The parties hereto agree
that the transactions contemplated by the Operative Agreements are expressly
intended to be, shall be and should be construed so as to be entitled to the
benefits and protection of Section 1110 of the Bankruptcy Code.
Section 17.13. Reliance of Liquidity Providers. Each of the parties
hereto agrees and acknowledges that each Liquidity Provider shall be a third
party beneficiary of each of the representations and warranties made herein by
such party, and that each Liquidity Provider may rely on such representations
and warranties to the same extent as if such representations and warranties
were made to such Liquidity Provider directly. The terms of this Agreement
shall inure to the benefit of each Liquidity Provider, their respective
successors and permitted assigns.
ARTICLE 18
CONFIDENTIALITY
Section 18.01. Confidentiality. Each party hereto agrees (on behalf
of itself and each of its Affiliates, agents, directors, officers, employees
and representatives) to use reasonable precautions to keep confidential, in
accordance with its customary procedures for handling confidential information
of this nature, any non-public information supplied to it pursuant to this
Agreement which is identified by the Person supplying the same as being
confidential at the time the same is delivered to such party, provided that
nothing herein shall limit the disclosure of any such information (i) to the
extent required by statute, rule, regulation or judicial process, (ii) to
counsel for any of the parties hereto, (iii) to bank examiners, auditors,
insurance regulators, accountants or similar regulatory authorities, (iv) in
connection with any litigation to which any one or more of the parties hereto
is a party relating to the transactions contemplated hereby or by any of the
Operative Agreements, (v) to a subsidiary or Affiliate of the parties hereto,
(vi) to any assignee or participant (or prospective assignee or participant)
so long as such assignee or participant (or prospective assignee or
participant) first executes and delivers to the respective party making such
assignment an agreement in writing to be bound by the provisions of this
Section 18.01 or (vii) in the case of any Owner Participant or the Owner
Trustee (in its individual or trust capacity) to the Owner Trustee (in its
individual or trust capacity) or to such Owner Participant, as the case may be.
IN WITNESS WHEREOF, the parties have caused this Participation
Agreement to be executed by their respective, duly authorized officers and this
Participation Agreement shall be effective this 22nd day of May, 1997.
LESSEE:
FEDERAL EXPRESS CORPORATION
By:__________________________________________
Name: Robert D. Henning
Title: Assistant Treasurer and Managing
Director - Structured Finance
OWNER PARTICIPANTS:
AMSOUTH LEASING, LTD.
By: AmSouth Leasing Corporation,
as General Partner
By:__________________________________________
Name: Charles F. Kiser
Title: President
BTM FUNDING CORPORATION
By:__________________________________________
Name:
Title:
OWNER TRUSTEE:
WILMINGTON TRUST COMPANY,
not in its individual capacity
except as otherwise expressly provided herein,
but solely as Owner Trustee
By:__________________________________________
Name: Donald G. MacKelcan
Title: Assistant Vice President
INDENTURE TRUSTEE:
FIRST SECURITY BANK,
NATIONAL ASSOCIATION,
not in its individual capacity except as
otherwise expressly provided herein,
but solely as Indenture Trustee
By:__________________________________________
Name: Greg A. Hawley
Title: Vice President
PASS THROUGH TRUSTEE:
FIRST SECURITY BANK,
NATIONAL ASSOCIATION,
not in its individual capacity except as
otherwise expressly provided herein,
but solely as Pass Through Trustee
By:__________________________________________
Name: Greg A. Hawley
Title: Vice President
SUBORDINATION AGENT:
FIRST SECURITY BANK,
NATIONAL ASSOCIATION,
not in its individual capacity except as
otherwise expressly provided herein,
but solely as Subordination Agent
By:__________________________________________
Name: Greg A. Hawley
Title: Vice President
SCHEDULE I
CERTIFICATE INFORMATION
1. Federal Express Corporation 1997-1 Pass Through Trust Class A
Federal Express Corporation Trust No. N581FE
Interest Rate: 7.50%
Maturity: January 15, 2017
Principal Amount: $35,615,000
2. Federal Express Corporation 1997-1 Pass Through Trust Class B
Federal Express Corporation Trust No. N581FE
Interest Rate: 7.52%
Maturity: January 15, 2013
Principal Amount: $13,210,000
3. Federal Express Corporation 1997-1 Pass Through Trust Class C
Federal Express Corporation Trust No. N581FE
Interest Rate: 7.65%
Maturity: January 15, 2009
Principal Amount: $13,008,000
SCHEDULE II
DEFINITIONS
(FEDERAL EXPRESS CORPORATION TRUST NO. N581FE)
GENERAL PROVISIONS
The following terms shall have the following meanings for all
purposes of the Operative Agreements (other than the Pass Through Agreement,
the Series Supplements, the Intercreditor Agreement and the Liquidity
Facilities) referred to below, unless otherwise defined in an Operative
Agreement or the context thereof shall otherwise require. In the case of any
conflict between the provisions of this Schedule and the provisions of any
Operative Agreement, the provisions of such Operative Agreement shall control
the construction of such Operative Agreement.
Unless the context otherwise requires, (i) references to agreements
shall be deemed to mean and include such agreements as amended and
supplemented from time to time, and (ii) references to parties to agreements
shall be deemed to include the successors and permitted assigns of such
parties.
DEFINED TERMS:
Additional Insured. As defined in Section 13.01(c)(i) of the Lease.
Aeronautics Authority. As appropriate, the Federal Aviation
Administration and/or the Administrator of the Federal Aviation
Administration, any successor to the former United States Civil Aeronautics
Board, or any Person, governmental department, bureau, commission or agency
located in the United States succeeding to the functions of any of the
foregoing.
Affidavit. The affidavit of citizenship of the Owner Trustee.
Affiliate. With respect to any Person, any other Person directly or
indirectly controlling, controlled by or under common control with such
Person. For the purposes of this definition, "control" (including "controlled
by" and "under common control with") shall mean the power, directly or
indirectly, to direct or cause the direction of the management and policies of
such Person whether through the ownership of voting securities or by contract
or otherwise. In no event shall the Owner Trustee or the Lessor be deemed an
Affiliate of an Owner Participant and WTC shall not be deemed to be an
Affiliate of any of the Owner Trustee, the Lessor or such Owner Participant.
Neither Owner Participant, by virtue of its status or the agreements in
respect thereof, shall be deemed an "Affiliate" of the other Owner
Participant.
After-Tax Basis. A basis such that any payment received or deemed to
have been received by a Person (the "Original Payment") shall be supplemented
by a further payment to such Person so that the sum of the two payments shall
be equal to the Original Payment, after taking into account (x) all Taxes that
would result from the receipt or accrual of such payments and (y) any
reduction in Taxes that would result from such increased Taxes. In the case
of amounts payable to the Lessor, the Owner Participants, or any corporate
Affiliate of an Owner Participant, it shall be presumed that such Person is at
all times subject to Federal income tax at the maximum marginal rate generally
applicable to corporations from time to time and actual state, local and
foreign income taxes.
Air Carrier. Any U.S. Air Carrier and any "foreign air carrier" (as
defined in the Transportation Code) as to which there is in force a permit
granted under Section 41302 of the Transportation Code.
Aircraft. The Airframe to be sold by the Lessee to the Owner Trustee
as provided in the Participation Agreement and to be leased under the Lease
(or any permitted substitute airframe thereunder) together with three Engines
(whether each an initial Engine or a Replacement Engine) whether or not any of
such initial or Replacement Engines may from time to time be installed on such
Airframe or may be installed on any other airframe or on any other aircraft,
including any aircraft substituted pursuant to Section 11.03 of the Lease.
Prior to delivery of the initial Lease Supplement, references in the Operative
Agreements (including Section 3.05 of the Participation Agreement) to Aircraft
shall mean the McDonnell Douglas MD-11F airframe bearing FAA Registration
Number N581FE and Manufacturer's serial number 48419, together with three
General Electric CF6-80C2-D1F engines.
Airframe. The McDonnell Douglas MD-11F aircraft (excluding the
Engines or engines from time to time installed thereon) to be leased by the
Lessor to the Lessee pursuant to the Lease and the initial Lease Supplement
and having the United States FAA Registration Number initially and
manufacturer's serial number specified in the initial Lease Supplement,
including (i) all Parts in respect thereof and (ii) any Replacement Airframe
which may be substituted pursuant to Section 11.03 of the Lease.
Ancillary Agreement. Any written agreement of the Lessee to which the
Lessor is a party or to which the Lessor has consented in writing entered into
on or prior to the Delivery Date or any date thereafter in connection with the
transactions contemplated by the Operative Agreements, as such agreement may
be amended and supplemented from time to time with the consent of the Lessor
and delivered to the Owner Trustee, the Indenture Trustee, the Pass Through
Trustee, the Subordination Agent, each Liquidity Provider and the Owner
Participants.
Ancillary Agreement I. The Ancillary Agreement I (Federal Express
Corporation Trust No. N581FE), dated the Certificate Closing Date, among the
Lessee, the Owner Trustee, not in its individual capacity, but solely as Owner
Trustee, the Owner Participants and the Indenture Trustee not in its
individual capacity, but solely as Indenture Trustee, as originally executed
or as amended, modified or supplemented with the consent of all the parties
thereto.
Application. The application for registration of the Aircraft with
the FAA in the name of the Owner Trustee.
Appraisal. The report prepared by BK Associates, Inc. and to be
delivered to the Owner Participants (with a copy of the fair market value
letter to the Lessee) on the Delivery Date pursuant to Section 4.02(h) of the
Participation Agreement.
Average Life Date. For any Certificate, the date which follows the
prepayment date by a period equal to the Remaining Weighted Average Life of
such Certificate.
Bankruptcy Code. The Federal Bankruptcy Code of 1978, as amended, and
any successor thereto.
Bankruptcy Default. An event specified in Section 16.01(e), (f) or
(g) of the Lease which either does or, with the giving of notice or lapse of
time or both, would constitute an Event of Default.
Basic Rent. The periodic rent payable for the Aircraft throughout
the Basic Term pursuant to Section 3.02 of the Lease, adjusted pursuant to
Article 3 of the Lease.
Basic Term. The period commencing at the beginning of the day on the
Delivery Date and ending at the end of the day on January 15, 2019, or such
earlier date on which the Lease shall be terminated as provided therein.
Beneficial Interest. The interest of the Owner Participants under
the Trust Agreement.
Bills of Sale. Collectively, the FAA Bill of Sale and the Warranty
Bill of Sale.
Business Day. Any day on which commercial banks are not authorized or
required to close in New York, New York, Memphis, Tennessee and the city in the
United States in which the office or agency is maintained by the Pass Through
Trustee for the payment of the Pass Through Certificates, and after the Lien
of the Indenture is discharged, Wilmington, Delaware.
Certificate Closing Date. The date of the closing with respect to the
purchase of Certificates by the Pass Through Trustee contemplated by Section
2.01(b) of the Participation Agreement.
Certificates. The Equipment Trust Certificates (Federal Express
Corporation Trust No. N581FE), issued by the Owner Trustee pursuant to the
Indenture and any certificate issued in exchange therefor or replacement
thereof pursuant to the Indenture.
Change in Tax Law. Any change to the Code or the Treasury regulations
promulgated thereunder or the publication of any revenue ruling, revenue
procedure or any informational release by the Internal Revenue Service or the
Department of Treasury either of which would change or would allow a change in
the tax assumptions or structure upon which the lease economics were based,
provided that the Owner Participants or the Lessee have notified the other
party of such change in writing prior to the Delivery Date.
Change in Tax Rate. Any amendment, modification, deletion, addition,
or change to the Code which is enacted into law after the Delivery Date which
changes the highest marginal statutory rate of Federal income tax applicable
to an Owner Participant (other than a change which is in the nature of a
minimum tax).
Citizen of the United States. A citizen of the United States as
defined in Section 40102(a)(15) of the Transportation Code, or any analogous
part of any successor or substituted legislation or regulation at the time in
effect.
Class A Liquidity Provider. Has the meaning specified in Section
1.01 of the Intercreditor Agreement.
Class B Liquidity Provider. Has the meaning specified in Section
1.01 of the Intercreditor Agreement.
Closings. The closing with respect to the acquisition of the Pass
Through Certificates by the Underwriters and the closing with respect to the
acquisition of Certificates by the Pass Through Trustee.
Code. Except as otherwise provided, the Internal Revenue Code of
1986, as amended from time to time.
Collateral Account. The deposit account established and maintained
pursuant to Section 2.13 of the Indenture.
Collateral Account Control Agreement. The Collateral Account Control
Agreement dated as of May 1, 1997 among State Street Bank and Trust Company,
the Indenture Trustee and the Owner Trustee.
Commitment. The amount of the Owner Participants' participation in
the Purchase Price required to be made available or paid as provided in
Section 3.02 of the Participation Agreement.
Corporate Trust Administration. The Corporate Trust Administration
office of the Owner Trustee located at 1100 North Market Street, Rodney Square
North, Wilmington, Delaware 19890-0001, Attention: Corporation Trust
Administration, or such other office at which the Owner Trustee's corporate
trust business shall be administered which the Owner Trustee shall have
specified by notice in writing to the Lessee, the Owner Participant and the
Indenture Trustee.
Corporate Trust Department. The Corporate Trust Department office of
the Indenture Trustee located at 79 South Main Street, Salt Lake City, Utah
84111, Attention: Corporate Trust Department, or such other office at which
the Indenture Trustee's corporate trust business shall be administered which
the Indenture Trustee shall have specified by notice in writing to the Lessee,
the Owner Participant and the Owner Trustee.
CRAF Program. Has the meaning specified in Section 7.02(a)(iv) of the
Lease.
Cut-Off Date. September 4, 1997.
Debt Portion. The amount specified as such on Schedule IV to the
Participation Agreement.
Debt Rate. The weighted average (based on Outstanding principal
amount) rate of interest on the Certificates issued pursuant to the Indenture.
Default. Any event or condition which, with the lapse of time or the
giving of notice, or both, would constitute an Event of Default.
Delivery Date. The date on which the Aircraft is delivered and sold
by the Lessee to the Lessor and leased by the Lessor to the Lessee under the
Lease, which date shall also be the date of the initial Lease Supplement.
Delivery Notice. Notice of the Aircraft's Delivery Date, given by
the Lessee as provided in Section 3.01 of the Participation Agreement and
including any notice with respect to a postponed Delivery Date given by the
Lessee pursuant to Section 3.05(c) of the Participation Agreement.
EBO Price. Has the meaning set forth in Section 4.02(a)(F) of the
Lease.
Eligible Deposit Account. Either (a) a segregated account with an
Eligible Institution or (b) a segregated trust account with the corporate
trust department of a depository institution with corporate trust powers
organized under the laws of the United States or any state thereof, or the
District of Columbia, and whose deposits are insured by the Federal Deposit
Insurance Corporation, provided that such institution also has a combined
capital and surplus of at least $100,000,000 and a rating of A or better from
the Thomson Bank Watch.
Eligible Institution. A depository institution organized under the
laws of the United States or any one of the states thereof, or the District of
Columbia, or any domestic branch of a foreign bank, which in any such case at
all times (a) has either (x) a long-term unsecured debt rating of at least Aa2
by Moody's or (y) a short-term certificate of deposit rating of P-1 by
Moody's, (b) has either (x) a long-term unsecured debt rating of a least AA by
S&P or (y) a short-term certificate of deposit rating of A-1+ by S&P and (c)
is a member of the Federal Deposit Insurance Corporation.
Engine. Each of the three General Electric CF6-80C2-D1F engines
listed by its manufacturer's serial number in the initial Lease Supplement and
leased pursuant to the Lease, whether or not from time to time installed on
the Airframe or installed on any other airframe or on any other aircraft, and
any Replacement Engine which may from time to time be substituted for an
Engine pursuant to Section 7.02(a)(vii), 10.02(c), 10.03, 11.03, 11.04 or
12.02 of the Lease, together with all Parts related thereto. Except as
otherwise provided, at such time as a Replacement Engine shall be so
substituted and the Engine for which the substitution is made shall be
released from the Lien of the Indenture, such replaced Engine shall cease to
be an "Engine" under the Lease. The term "Engines" means, as of any date of
determination, all Engines then leased to the Lessee pursuant to the Lease.
Engine Consent. The Engine Consent dated as of May 1, 1997, executed
by the Engine Manufacturer.
Engine Manufacturer. General Electric Company, a New York
corporation.
Engine Warranty Assignment. The Engine Warranty Assignment (Federal
Express Corporation Trust No. N581FE), dated as of May 1, 1997 between the
Lessor and the Lessee.
Equity Percentage. For any Owner Participants, the fractional
interest, expressed as a percentage, of such Owner Participant's interest in
the Beneficial Interest, calculated by dividing the Commitment of such Owner
Participant (or of such Owner Participant's predecessor in interest) paid on
the Delivery Date by the aggregate of the Commitments paid by all of the Owner
Participants on the Delivery Date. As to AmSouth Leasing Ltd., such Equity
Percentage shall be 50% and as to BTM Funding Corporation, such Equity
Percentage shall be 50%.
ERISA. The Employee Retirement Income Security Act of 1974, as
amended.
ERISA Plan. An employee benefit plan subject to Title I of ERISA, or
an individual retirement account or plan subject to Section 4975 of the Code.
Estimated Expense Amount. Has the meaning specified in Section
10.01(a) of the Participation Agreement.
Event of Default. Each of the events specified in Article 16 of the
Lease.
Event of Loss. Any of the following events with respect to the
Aircraft, the Airframe or any Engine: (i) loss of such property or its use
(A) for a period in excess of 30 days due to theft or disappearance or such
longer period not to exceed 60 days from the end of such initial 30-day period
if and so long as the location of such property is known to the Lessee and the
Lessee is diligently pursuing recovery of such property, or to the end of the
Term, if less (unless such loss constitutes an Event of Loss under clause (ii)
of this definition) or (B) for a period in excess of 60 days due to the
destruction, damage beyond economic repair or rendition of such property
permanently unfit for normal use by Lessee for any reason whatsoever; (ii) any
damage to such property which results in an insurance settlement with respect
to such property on the basis of a total loss, or constructive or compromised
total loss; (iii) (1) condemnation, confiscation or seizure of, or requisition
of title to such property by the Government, any foreign government or
purported government or any agency or instrumentality thereof, or (2)
condemnation, confiscation, or seizure of, or requisition or taking of, use of
such property (A) by a foreign government or instrumentality or agency of any
such foreign government, for a period in excess of 180 days (or such shorter
period ending on the earlier of the expiration of the Term or on the date on
which an insurance settlement with respect to such property on the basis of a
total loss or constructive or compromised total loss shall occur) or (B) by
the Government for a period extending beyond the Term, provided that no Event
of Loss shall be deemed to have occurred, and the Term shall be extended
automatically for a period of six months (or the date of return of the
Aircraft, if shorter, so long as the Lessor receives at least six months
notice of such date of return) beyond the end of the Term in the event that
the Aircraft, the Airframe or any Engine is requisitioned by the Government
pursuant to an activation as part of the CRAF Program described in Section
7.02(a)(iv) of the Lease; and (iv) as a result of any law, rule, regulation,
order or other action by the Aeronautics Authority or other governmental body
having jurisdiction, the use of the Aircraft or Airframe in the normal course
of air transportation of cargo shall have been prohibited by virtue of a
condition affecting all McDonnell Douglas MD-11 series aircraft equipped with
engines of the same make and model as the Engines for a period of six (6)
consecutive months, unless the Lessee, prior to the expiration of such six (6)
month period, shall be diligently carrying forward all steps which are
necessary or desirable to permit the normal use of the Aircraft or Airframe
or, in any event, if such use of the Aircraft or the Airframe shall have been
prohibited for a period of twelve (12) consecutive months, unless the Lessee,
prior to the expiration of such twelve (12) month period shall have conformed
at least one McDonnell Douglas MD-11 series aircraft (but not necessarily the
Aircraft or the Airframe) to the requirements of any such law, rule,
regulation, order, or other action and shall have commenced regular commercial
use and shall be diligently carrying forward, on a non-discriminatory basis,
all steps necessary or desirable to permit the normal use of the Aircraft by
the Lessee. The date of such Event of Loss shall be (s) the 31st day or the
91st day, as the case may be, following loss of such property or its use due
to theft or disappearance (or the end of the Term, if earlier); (t) the 61st
day following the date of any destruction, damage beyond economic repair or
rendition of such property permanently unfit for normal use; (u) the date of
any insurance settlement on the basis of a total loss or constructive or
compromised total loss; (v) the date of any condemnation, confiscation,
seizure or requisition of title of such property; (w) the 181st day following
condemnation, confiscation, seizure or requisition for use of such property by
a foreign government referred to in clause (iii)(2)(A) above (or the end of
the Term or the date of any insurance settlement described therein, if earlier
than such 181st day); (x) the last day of the Term in the case of requisition
for use of such property by the Government; (y) the last day of the 6 month or
12 month period, referred to in clause (iv) above. An Event of Loss with
respect to the Aircraft shall be deemed to have occurred if any Event of Loss
occurs with respect to the Airframe.
Excepted Payments. Collectively, (i) indemnity or other payments (and
interest thereon to the extent provided in the Operative Agreements) paid or
payable by the Lessee in respect of any Owner Participant, the Owner Trustee
in its individual capacity or any of their respective successors, permitted
assigns, directors, officers, employees, servants and agents or Affiliates,
pursuant to the Participation Agreement or any indemnity hereafter granted to
any Owner Participant or the Owner Trustee in its individual capacity pursuant
to the Lease or the Participation Agreement, (ii) proceeds of public liability
insurance (or government indemnities in lieu thereof) in respect of the
Aircraft payable as a result of insurance claims paid for the benefit of, or
losses suffered by, the Owner Trustee or the Indenture Trustee in their
respective individual capacities or by any Owner Participant, or their
respective successors, permitted assigns or Affiliates, (iii) proceeds of
insurance maintained with respect to the Aircraft by any Owner Participant
(whether directly or through the Owner Trustee) maintained in accordance with
the provisions of but not required under Article 13 of the Lease, (iv)
payments of Supplemental Rent by the Lessee in respect of any amounts payable
under the Tax Indemnity Agreements, (v) any amounts payable by the Lessee to
any Owner Participant or the Owner Trustee in its individual capacity, after
the release thereof from the Lien of the Indenture, (vi) the payment of
incremental out-of-pocket expenses of the Owner Trustee, each Owner
Participant or their respective authorized representatives payable by the
Lessee under Section 6.03(b) of the Participation Agreement or Section 14.01
of the Lease following any reregistration of the Aircraft and (vii) proceeds
of, and any right to demand, collect or otherwise receive and enforce the
payment of any amount described in clauses (i) through (vii) above.
Expense; Expenses. Have the meaning specified in Section 9.01(a) of
the Participation Agreement.
FAA Bill of Sale. The bill of sale for the Airframe on AC Form
8050-2, or such other form as may be approved by the Aeronautics Authority,
executed by the Lessee in favor of the Owner Trustee and to be dated the
Delivery Date.
Fair Market Renewal Term. A term with respect to which the Lessee has
exercised its option to renew the Lease pursuant to the second paragraph of
Section 4.01(a) thereof and with respect to which the conditions set forth in
such Section 4.01(a) are met.
Fair Market Rental. An amount determined on the basis of, and equal
in amount to, the rental which would be obtained in an arm's-length
transaction between an informed and willing lessee and an informed and willing
lessor unaffiliated with such lessee, neither being under any compulsion to
lease. In such determination, it shall be assumed that the Aircraft is in the
condition required under the Lease in the case of return of the Aircraft
pursuant to Article 12 of the Lease. Fair Market Rental shall be determined
in accordance with the provisions of Section 4.03 of the Lease.
Fair Market Value. An amount determined on the basis of, and equal
in amount to, the value which would be obtained in an arm's-length transaction
between an informed and willing purchaser under no compulsion to buy and an
informed and willing seller unaffiliated with such purchaser and under no
compulsion to sell, assuming that the Aircraft (or other property) is
unencumbered by the Lease. Unless otherwise provided in the applicable
provisions of any Operative Agreement, in such determination it shall be
assumed that the Aircraft is in the condition required under the Lease in the
case of return of the Aircraft pursuant to Article 12 of the Lease; provided
that in connection with any determination pursuant to or for the purposes of
Article 17 of the Lease, the Aircraft shall be appraised on an "as is, where
is" basis. Fair Market Value shall be determined in accordance with the
provisions of Section 4.03 of the Lease.
Federal Aviation Administration; FAA. The United States Federal
Aviation Administration and any successor agency or agencies thereto.
Final Drawing. Has the meaning specified in Section 1.01 of the
Intercreditor Agreement.
Fixed Renewal Rent. Semi-annual payments of rent during the Fixed
Renewal Term equal to the amount set forth in Ancillary Agreement I.
Fixed Renewal Term. The term with respect to which the Lessee has
exercised its option to renew the Lease pursuant to the first paragraph of
Section 4.01(a) thereof and with respect to which the conditions set forth in
such Section 4.01(a) are met.
FSB. First Security Bank, National Association, a national banking
association.
Government. The United States of America or an agency or
instrumentality thereof the obligations of which bear the full faith and
credit of the United States of America.
GTA. The General Terms Agreement dated as of July 3, 1991 between the
Engine Manufacturer and the Lessee related to the purchase by the Lessee of the
Engines as originally executed or as modified, amended or supplemented in
accordance with the terms thereof, but only insofar as the General Terms
Agreement relates to the Engines, to the extent assigned to the Owner Trustee
pursuant to the Engine Warranty Assignment.
Holder of a Certificate; Certificate Holder; Holder. As of any
particular time, the Person in whose name a Certificate shall be registered
(but not including the holder of any Pass Through Certificate).
Indemnitee. Each of WTC, in its individual capacity and as Owner
Trustee and Lessor, each Owner Participant, the Indenture Trustee, in its
individual capacity and as trustee, the Subordination Agent, in its individual
capacity and in its capacity as Subordination Agent, each Liquidity Provider,
each Owner Participant Guarantor, and any successor (including any trustee
which may succeed to the Lessor's interest under the Lease), Affiliate,
assign, officer, director, employee, agent and servant of any of the
foregoing, the Lessor's Estate and the Trust Indenture Estate. Neither the
Pass Through Trustee nor any holder of a Pass Through Certificate shall be
deemed to be an Indemnitee.
Indenture. The Trust Indenture and Security Agreement (Federal
Express Corporation Trust No. N581FE), dated as of May 1, 1997, between the
Lessor and the Indenture Trustee, as supplemented by the Indenture and
Security Agreement Supplement.
Indenture and Security Agreement Supplement. The Indenture and
Security Agreement Supplement No. 1 (Federal Express Corporation Trust No.
N581FE) to be dated the Delivery Date, substantially in the form of Exhibit A
to the Indenture.
Indenture Default. Any event or condition which, with the lapse of
time or the giving of notice, or both, would constitute an Indenture Event of
Default.
Indenture Documents. Has the meaning specified in the Granting
Clause of the Indenture.
Indenture Event of Default. Each of the events specified in Section
7.01 of the Indenture.
Indenture Trustee. First Security Bank, National Association, a
national banking association, not in its individual capacity but solely as
Indenture Trustee under the Indenture.
Indenture Trustee's Liens. Any Lien against, on or with respect to
the Aircraft, the Lessor's Estate or the Trust Indenture Estate or any part
thereof resulting from (i) claims against the Indenture Trustee not related to
the administration of the Trust Indenture Estate or any transactions pursuant
to the Indenture or any document included in the Trust Indenture Estate, (ii)
any act or omission of the Indenture Trustee which is not related to the
transactions contemplated by the Operative Agreements or is in violation of
any of the terms of the Operative Agreements or (iii) Taxes imposed against
the Indenture Trustee in its individual capacity against which the Lessee has
not indemnified (and is not obligated to indemnify) the Indenture Trustee in
such capacity.
Independent Investment Banker. An independent investment banking
institution of national standing appointed by the Lessee that is independent
in fact, does not have any direct financial interests, or any material
indirect financial interest, in the Lessee or any Affiliate of the Lessee, and
is not connected with the Lessee or any Affiliate of the Lessee, as an
officer, employee, promoter, underwriter, trustee, partner, director or Person
performing similar functions; provided, that if the Indenture Trustee shall
not have received written notice of such an appointment at least 10 days prior
to the Prepayment Date, "Independent Investment Banker" shall mean such an
institution appointed by the Indenture Trustee.
Intercreditor Agreement. The Intercreditor Agreement dated as of May
1, 1997, among the Pass Through Trustee, the Class A Liquidity Provider, the
Class B Liquidity Provider and the Subordination Agent.
Interest Drawing. Has the meaning specified in Section 1.01 of the
Intercreditor Agreement.
Invoice. The invoice for the Aircraft given by the Lessee to the
Lessor.
Lease. The Lease Agreement (Federal Express Corporation Trust No.
N581FE) dated as of May 1, 1997, entered into by the Lessor and the Lessee
concurrently with the execution and delivery of the Indenture, including,
without limitation, supplementation by one or more Lease Supplements entered
into pursuant to the applicable provisions of the Lease.
Lease Supplement. The Lease Supplement No. 1 (Federal Express
Corporation Trust No. N581FE) to be dated the Delivery Date, substantially in
the form of Exhibit A to the Lease.
Lease Term. The period commencing on the Delivery Date and ending at
the end of the Basic Term.
Lessee. Federal Express Corporation, a Delaware corporation.
Lessee Documents. Has the meaning set forth in Section 6.01(b) of the
Participation Agreement.
Lessor. Wilmington Trust Company, not in its individual capacity but
solely as Owner Trustee under the Trust Agreement.
Lessor's Estate. All estate, right, title and interest of the Owner
Trustee in and to the Collateral Account, the Liquid Collateral, the Aircraft,
the Lease, any Lease Supplement, the Participation Agreement, the Bills of
Sale, the Modification Agreement, any Ancillary Agreement, the GTA, the Engine
Warranty Assignment, the Engine Consent, any warranty with respect to the
Airframe and the Engines, all amounts of Basic Rent and Supplemental Rent,
including without limitation, insurance proceeds (other than insurance
proceeds payable to or for the benefit of the Owner Trustee in its individual
capacity, any Owner Participant or the Indenture Trustee) and requisition,
indemnity or other payments of any kind for or with respect to the Aircraft
(except amounts owing to any Owner Participant, to the Indenture Trustee, to
the Owner Trustee in its individual capacity, or to any of their respective
directors, officers, employees and agents pursuant to Articles 8 and 9 of the
Participation Agreement), and all other property of the Owner Trustee
purportedly subjected to the Lien of the Indenture by the Granting Clause
thereof; provided that in no event shall "Lessor's Estate" include any
Excepted Payment.
Lessor's Liens. Liens against, on or with respect to the Aircraft,
the Lessor's Estate or the Trust Indenture Estate or any part thereof, title
thereto or any interest therein arising as a result of (i) claims against the
Lessor, in its individual capacity or as Owner Trustee, or any Owner
Participant, in each case not related to the transactions contemplated by the
Operative Agreements, (ii) acts or omissions of the Lessor in its individual
capacity or as Owner Trustee, and, in the case of the Lessor in its individual
capacity, arising from its gross negligence or willful misconduct or expressly
prohibited under the Operative Agreements and any act or omission of any Owner
Participant which is in violation of any of the terms of the Operative
Agreements, (iii) Taxes or Expenses imposed against the Lessor, in its
individual capacity or as Owner Trustee, any Owner Participant, Lessor's
Estate or the trust created by the Trust Agreement which are not required to
be indemnified against by the Lessee pursuant to the Participation Agreement
by reason of Section 8.01(b) or 9.01(b) thereof or which are not required to
be indemnified against by the Lessee pursuant to the Tax Indemnity Agreements,
or (iv) claims against the Lessor or any Owner Participant arising from the
voluntary transfer by the Lessor or any Owner Participant of its interests in
the Aircraft other than a transfer of the Aircraft pursuant to Section 4.02(a)
or Article 7, 8, 9, 10 or 11 of the Lease and other than a transfer pursuant
to the exercise of the remedies set forth in Article 17 of the Lease.
Lien. Any mortgage, pledge, lien, charge, encumbrance, lease or
security interest or other similar interest.
Liquid Collateral. All amounts and securities deposited from time to
time in the Collateral Account and all the products, investments, earnings and
proceeds of the foregoing, including, but not limited to, all proceeds of the
investment or conversion thereof, voluntary or involuntary, into cash,
Specified Investments or other property, all rights to payment of any and
every kind, and other forms of obligations, and instruments and other property
which at any time constitute all or part or are included in the proceeds of
any of the foregoing.
Liquidity Facility. Has the meaning specified in Section 1.01 of the
Intercreditor Agreement.
Liquidity Provider. Has the meaning specified in Section 1.01 of the
Intercreditor Agreement.
Losses. Has the meaning specified in Section 17.02(a) of the
Participation Agreement.
Loss Payee. Has the meaning specified in Section 13.02(b)(i) of the
Lease.
Majority in Interest of Certificate Holders. As of a particular date
of determination, the Holders of more than 50% of the aggregate unpaid
principal amount of all Certificates outstanding as of such date excluding for
purposes of this definition any Certificates held by (i) the Owner Trustee or
any Owner Participant or any interests of such Owner Participant unless all
Certificates then outstanding shall be held by such Owner Participant, (ii)
the Lessee or (iii) any Affiliate of any thereof.
Majority in Interest of Owner Participants. As of a particular date
of determination, the Owner Participants holding more than 50% of the
Beneficial Interest.
Make-Whole Premium. An amount determined as of the day before the
applicable Prepayment Date (or date of purchase, as the case may be) which an
Independent Investment Banker determines to be equal to the excess, if any, of
(i) the present value of the remaining scheduled payments of such principal
amount or portion thereof and interest thereon (excluding interest accrued
from the immediately preceding Payment Date to such Prepayment Date or date of
purchase, as the case may be) to the Maturity of such Certificate in
accordance with generally accepted financial practices assuming a 360-day year
consisting of twelve 30-day months at a discount rate equal to the Treasury
Yield, all as determined by the Independent Investment Banker over (ii) the
outstanding principal amount of such Certificate plus accrued interest.
Manufacturer. McDonnell Douglas Corporation, a Maryland corporation.
Maturity. With respect to any Certificate, the date on which the
final principal amount of such Certificate is scheduled to be due and payable.
Modification Agreement. The Aircraft Modification Agreement dated as
of December 1, 1995 between the Lessee and the Manufacturer providing for the
refurbishing and reconfiguration of the Aircraft including any warranties
relating thereto, but only to the extent that the foregoing relates to the
Aircraft, to the extent assigned to the Owner Trustee pursuant to the Warranty
Bill of Sale.
Moody's. Moody's Investors Service, Inc.
Net Present Value of Rents. The net present value, as of the
Delivery Date, of Basic Rent set forth in Schedule II of the Lease, discounted
at a rate equal to the Debt Rate per annum compounded semi-annually.
Non-U.S. Person. Any Person other than a U.S. Person.
Obsolete Parts. Parts which the Lessee in good faith determines to be
obsolete or no longer suitable or appropriate for use on the Airframe or any
Engine.
Officer's Certificate. When delivered pursuant to the Indenture, a
certificate signed by a Responsible Officer of the Lessee or the Owner
Trustee, as the case may be, and delivered to the Indenture Trustee. Each
such certificate shall include the statements provided for in Section 15.07 of
the Indenture.
Operative Agreements. The Participation Agreement, the Trust
Agreement, the Bills of Sale, the Modification Agreement, the GTA, the Engine
Warranty Assignment, the Lease, the Lease Supplement, each Owner Participant
Guaranty, the Owner Trustee Guaranty, if any, any Ancillary Agreement entered
into by or with the written consent of the Indenture Trustee, which by its
terms is an Operative Agreement, the Certificates outstanding at the time of
reference, the Indenture, the Indenture and Security Agreement Supplement, the
Engine Consent, the Tax Indemnity Agreements, each Liquidity Facility, the
Collateral Account Control Agreement and the Intercreditor Agreement.
Opinion of Counsel. When delivered pursuant to the Indenture, a
written opinion of legal counsel, who in the case of counsel (a) for the
Lessee may be (i) an attorney employed by the Lessee who is generally
empowered to deliver such written opinions, (ii) Davis Polk & Wardwell or a
successor firm or (iii) other counsel designated by the Lessee and reasonably
satisfactory to the Indenture Trustee and (b) for the Owner Trustee or the
Indenture Trustee, an attorney selected by such Person and, in the case of the
Owner Trustee, reasonably satisfactory to the Indenture Trustee.
Outstanding. When used with respect to Certificates, as of the date
of determination and subject to the provisions of Section 10.04 of the
Indenture, all Certificates theretofore executed and delivered under the
Indenture, with the exception of the following:
(i) Certificates theretofore cancelled by the Indenture Trustee or
delivered to the Indenture Trustee for cancellation pursuant to
Section 2.08 of the Indenture or otherwise;
(ii) Certificates for which prepayment money in the necessary amount
has been theretofore deposited with the Indenture Trustee in trust
for the Holders of such Certificates pursuant to Section 14.01 of the
Indenture; provided, that if such Certificates are to be prepaid,
notice of such prepayment has been duly given pursuant to the
Indenture or provision therefor satisfactory to the Indenture Trustee
has been made; and
(iii) Certificates in exchange for or in lieu of which other
Certificates have been executed and delivered pursuant to Article II
of the Indenture.
Owner Participant or Owner Participants. The trustors originally
named in the Trust Agreement and any successors thereto, and any Person to
which any Owner Participant transfers, in accordance with the Trust Agreement,
its right, title and interest in and to the Operative Agreements and the
Lessor's Estate.
Owner Participant Guarantor. AmSouth Bank of Alabama, in respect of
AmSouth Leasing Ltd., and Bank of Tokyo-Mitsubishi Trust Company, in respect of
BTM Funding Corp., and any other provider of an Owner Participant Guaranty.
Owner Participant Guaranty. Each Owner Participant Guaranty dated the
Certificate Closing Date, substantially in the form of Exhibit E to the
Participation Agreement.
Owner Trustee. WTC, not in its individual capacity except as
otherwise expressly stated, but solely as Owner Trustee under the Trust
Agreement.
Owner Trustee Guarantor. The provider, if any, of an Owner Trustee
Guaranty.
Owner Trustee Guaranty. Any guaranty delivered in compliance with
Section 11.01(b)(ii) of the Participation Agreement.
Owners' Economic Return. The Owner Participants' anticipated net
after-tax book yield and aggregate after-tax cash during the Basic Term
utilizing the multiple investment sinking fund method of analysis, computed on
the basis of the same methodology and assumptions as were utilized by the
Owner Participants in determining Basic Rent, Stipulated Loss Value and
Termination Value percentages and the EBO Price, as such assumptions may be
adjusted for events which have been the basis of adjustments to Rent pursuant
to Section 3.04 of the Lease.
Participation Agreement. The Participation Agreement (Federal Express
Corporation Trust No. N581FE), dated as of May 1, 1997, among the Lessee, the
Owner Trustee not in its individual capacity except as otherwise expressly
provided therein, but solely as owner trustee, the Owner Participants, the
Indenture Trustee not in its individual capacity except as otherwise expressly
provided therein, but solely as indenture trustee, the Pass Through Trustee
not in its individual capacity except as otherwise expressly provided therein,
but solely as pass through trustee and the Subordination Agent not in its
individual capacity except as otherwise expressly provided therein, but solely
as subordination agent.
Parts. All appliances, parts, components, instruments, appurtenances,
accessories, furnishings and other equipment of whatever nature (other than
complete Engines or engines) which may from time to time be incorporated or
installed in or attached to the Airframe or any Engine or title to which
remains vested in the Lessor pursuant to Article 8 of the Lease.
Pass Through Agreement. The Pass Through Trust Agreement dated as of
May 1, 1997 between the Lessee and the Pass Through Trustee.
Pass Through Certificates. Any of the Pass Through Certificates,
1997-1-A, the Pass Through Certificates, 1997-1-B or the Pass Through
Certificates, 1997-1-C, in each case as issued by the related Pass Through
Trust; and "Pass Through Certificates" means all of the Pass Through
Certificates issued by each of the Pass Through Trusts.
Pass Through Closing Date. The Business Day on which the sale of the
Pass Through Certificates to the Underwriters pursuant to the Underwriting
Agreement takes place.
Pass Through Trust. The Federal Express Corporation 1997-1 Pass
Through Trust Class A, Federal Express Corporation 1997-1 Pass Through Trust
Class B and Federal Express Corporation 1997-1 Pass Through Trust Class C, in
each case formed pursuant to the related Series Supplement in accordance with
the Pass Through Agreement; and "Pass Through Trusts" means all of such Pass
Through Trusts.
Pass Through Trustee. First Security Bank, National Association, a
national banking association, in its capacity as Pass Through Trustee under
the Pass Through Agreement and each Pass Through Trust.
Past Due Rate. In respect of (A) any amount payable to the Owner
Participants or the Owner Trustee a rate per annum during the period from and
including the due date to but excluding the date on which such amount is paid
in full equal to 2% plus the Debt Rate and (B) any principal of or interest on
any Certificate or any other amount payable under the Indenture, any
Certificate or any other Operative Agreement that is not paid when due
(whether at Maturity, by acceleration, by optional or mandatory prepayment or
otherwise) to any Holder, the Indenture Trustee or the Pass Through Trustee, a
rate per annum during the period from and including the due date to but
excluding the date on which such amount is paid in full equal to (i) in the
case of any such amount payable to the Holder of any Certificate, 2% plus the
interest rate applicable to such Certificate and (ii) in the case of any other
such amount, 2% plus the Debt Rate.
Payment Date. Each January 15 and July 15 commencing on July 15,
1997.
Payment Default. Any event specified in Section 16.01(a) or 16.01(b)
of the Lease which with the giving of notice or lapse of time or both would
constitute an Event of Default.
Permitted Investments. Those investments enumerated in Section
23.01(a) (i), (ii), (iii) and (iv) of the Lease.
Person. Any individual, sole proprietorship, partnership, joint
venture, joint stock company, trust, unincorporated organization, association,
corporation, institution, entity or government (federal, state, local, foreign
or any agency, instrumentality, division or body thereof).
Preliminary Notice. Has the meaning specified in Section 4.01(a) of
the Lease.
Premium Termination Date. With respect to the Series A Certificates,
December 27, 2011, with respect to the Series B Certificates, February 5, 2010
and with respect to the Series C Certificates, March 22, 2007.
Prepayment Date. Has the meaning specified in Section 6.02(b) of the
Indenture.
Prepayment Price. Has the meaning specified in Section 6.02(b) of the
Indenture.
Principal Amount. With respect to a Certificate means the stated
original principal amount of such Certificate and, with respect to all
Certificates, means the aggregate stated original principal amounts of all
Certificates.
Property. Any right or interest in or to property of any kind
whatsoever, whether real, personal or mixed and whether tangible or intangible.
Proposed Termination Date. Has the meaning specified in Section
10.01(a) of the Lease.
Purchase Price. Has the meaning specified in Ancillary Agreement I.
Record Date. With respect to Payment Dates under the Indenture
(except a date for payment of defaulted interest), December 31 for January 15
Payment Dates and June 30 for July 15 Payment Dates, whether or not such date
is a Business Day.
Recourse Amount. Has the meaning specified in Section 17.10 of the
Participation Agreement.
Refinancing. A non-recourse loan to the Lessor arranged pursuant to
Section 15.01 of the Participation Agreement.
Register. Has the meaning set forth in Section 3.02 of the Indenture.
Registrar. Has the meaning set forth in Section 3.02 of the
Indenture.
Regulation D. Regulation D of the Board of Governors of the Federal
Reserve System (or any successor), as the same may be modified and
supplemented and in effect from time to time.
Remaining Weighted Average Life. On a given date with respect to any
Certificate the number of days equal to the quotient obtained by dividing (i)
the sum of each of the products obtained by multiplying (a) the amount of each
then remaining scheduled payment of principal of such Certificate by (b) the
number of days from and including such prepayment date to but excluding the
dates on which each such payment of principal is scheduled to be made; by (ii)
the then outstanding principal amount of such Certificate.
Renewal Rent. The amount payable by the Lessee as rent in accordance
with Section 4.01 of the Lease during any Renewal Term.
Renewal Term. One or more terms with respect to which the Lessee has
exercised its option to renew the Lease pursuant to Section 4.01(a) thereof.
Rent. All payments due from the Lessee under the Lease as Basic Rent,
Renewal Rent and Supplemental Rent, collectively.
Rent Payment Date. Each January 15 and July 15 commencing on July 15,
1997.
Reoptimization Date. Has the meaning specified in Section 15.02(a)
of the Participation Agreement.
Replacement Aircraft. Any aircraft substituted for the Aircraft
pursuant to Section 11.03(a) of the Lease.
Replacement Airframe. Has the meaning set forth in Section 11.03 of
the Lease.
Replacement Engine. A General Electric CF6-80C2-D1F engine (or an
engine of the same or another manufacturer) of the same or of equal or greater
value, remaining useful life and utility as the Engine being replaced,
together with all Parts relating to such engine; provided, however, that if
such replacement engine is not a General Electric CF6-80C2-D1F engine, such
replacement engine must then be commonly used in the commercial aviation
industry on McDonnell Douglas MD-11 airframes.
Responsible Officer. With respect to the Owner Trustee (except for
purposes of the Trust Agreement in which case the definition of Responsible
Officer set forth in Section 3.10 of the Trust Agreement is applicable) or the
Indenture Trustee, any officer in its Corporate Trust Administration, as the
case may be, designated by such Person to perform obligations under the
Operative Agreements, and with respect to any other party, any corporate
officer or (except in the case of any Owner Participant) other employee of a
party who, in the normal performance of his or her operational
responsibilities, with respect to the subject matter of any covenant,
agreement or obligation of such party pursuant to any Operative Agreement,
would have responsibility for and knowledge of such matter and the
requirements of any Operative Agreement with respect thereto.
S&P. Standard & Poor's Ratings Group.
Scheduled Delivery Date. The Delivery Date specified in the Delivery
Notice pursuant to Section 3.01 of the Participation Agreement.
SEC. The Securities and Exchange Commission of the United States and
any successor agencies or authorities.
Secured Obligations. Has the meaning specified in the Granting
Clause of the Indenture.
Securities Act. The Securities Act of 1933, as amended.
Series "A" or "Series A Certificates". Certificates issued and
designated as "Series A" under the Indenture, in the Principal Amount and
maturities and bearing interest as specified in Exhibit B to the Indenture
under the heading "Series A".
Series "B" or "Series B Certificates". Certificates issued and
designated as "Series B" under the Indenture, in the Principal Amount and
maturities and bearing interest as specified in Exhibit B to the Indenture
under the heading "Series B".
Series "C" or "Series C Certificates". Certificates issued and
designated as "Series C" under the Indenture, in the Principal Amount and
maturities and bearing interest as specified in Exhibit B to the Indenture
under the heading "Series C".
Series Supplement or Series Supplements. The Series Supplement
1997-1-A to be executed and delivered by the Lessee and the Pass Through
Trustee, the Series Supplement 1997-1-B to be executed and delivered by the
Lessee and the Pass Through Trustee or the Series Supplement 1997-1-C to be
executed and delivered by the Lessee and the Pass Through Trustee.
Sinking Fund Redemption Date. Has the meaning specified in Section
6.06 of the Indenture.
Sinking Fund Redemption Price. Has the meaning specified in Section
6.06 of the Indenture.
Special Aviation Counsel. Daugherty, Fowler & Peregrin.
Specified Investments. Shall mean (a) direct obligations of the
United States of America or obligations fully guaranteed by the United States
of America; (b) commercial paper rated A-1/P-1 by S&P and Moody's,
respectively or, if such ratings are unavailable, rated by any nationally
recognized rating organization in the United States equal to the highest
rating assigned by such rating organization; (c) investments in negotiable
certificates of deposit, time deposits, banker's acceptances, commercial paper
or other direct obligations of, or obligations guaranteed by, commercial banks
organized under the laws of the United States or of any political subdivision
thereof (or any U.S. branch of a foreign bank) with issuer ratings of at least
B/C by Thomson Bankwatch, having maturities no later than 90 days following
the date of such investment; (d) overnight federal funds transactions with
members of the Federal Reserve System arranged by federal funds brokers; or
(e) overnight repurchase agreements with respect to the securities described
in clause (a) above entered into with an office of a bank or trust company
which is located in the United States of America or any bank or trust company
which is organized under the laws of the United States or any state thereof
and has capital, surplus and undivided profits aggregating at least $500
million.
Stipulated Loss Value. As of any Stipulated Loss Value Determination
Date during the Basic Term, the amount determined by multiplying the Purchase
Price by the percentage set forth in Schedule III of the Lease under the
heading "Stipulated Loss Value Factor" opposite such date (as such Schedule
III may be adjusted from time to time as provided in Section 3.04 of the
Lease), and during any Renewal Term, the amount determined pursuant to Section
4.01(b) of the Lease. Notwithstanding any other provisions of the Lease or
the Participation Agreement or the Indenture, each Stipulated Loss Value shall
be, under any circumstances and in any event, an amount, together with so much
of the arrears portion of Basic Rent due and owing through the date of payment
of Stipulated Loss Value as does not constitute an Excepted Payment, at least
sufficient to pay in full as of such date of payment the aggregate unpaid
principal amount of and accrued interest on the Certificates outstanding on
such date of payment. Subject to the immediately preceding sentence, it is
understood and agreed that the amounts set forth on Schedule III of the Lease,
for dates other than Rent Payment Dates on which arrears Basic Rent is due,
fully reflect appropriate Basic Rent accruals and credits of unearned Basic
Rent and, accordingly, no further accrual or credit shall be required whenever
Stipulated Loss Value is to be calculated with reference to any such date.
Stipulated Loss Value Determination Date. Each date set forth on
Schedule III of the Lease.
Subordination Agent. First Security Bank, National Association, a
national banking association, not in its individual capacity but solely as
Subordination Agent.
Supplemental Rent. (a) All amounts, liabilities and obligations
which the Lessee assumes or agrees to perform or pay under the Lease or under
the Participation Agreement or Tax Indemnity Agreements or any Ancillary
Agreement or any other Operative Agreement to WTC, the Lessor, the Owner
Participants, the Indenture Trustee, the Subordination Agent, any Liquidity
Provider or others, including, without limitation, payments of Stipulated Loss
Value, EBO Price and amounts calculated by reference to Termination Value and
all amounts required to be paid by Lessee under the agreements, covenants and
indemnities contained in the Lease or in the Participation Agreement or the
Tax Indemnity Agreements or any other Operative Agreement, but excluding Basic
Rent and (b) all amounts that the Owner Trustee is obligated to pay in
accordance with clause (b) of the last paragraph of Section 2.04 of the
Indenture.
Tax. Shall have the meaning set forth in Section 8.01(a) of the
Participation Agreement.
Tax Indemnity Agreements. Each of the Tax Indemnity Agreements
(Federal Express Corporation Trust No. N581FE), dated as of May 1, 1997, among
the Lessee, the Lessor and each Owner Participant.
Term. The Basic Term of the lease for the Aircraft under the Lease
and, if renewed pursuant to Section 4.01 of the Lease, each Renewal Term for
the Aircraft for which the Lease is renewed, or such earlier date on which the
Lease is terminated pursuant to its terms.
Termination Date. A Rent Payment Date during the Basic Term that is
on or after July 15, 2004 in the case of Article 10 of the Lease, and in the
case of (i) Section 4.02(a)(A) of the Lease, the Rent Payment Date falling on
January 15, 2012 or January 15, 2017, as the case may be, (ii) Section
4.02(a)(D) or (E) of the Lease, a Rent Payment Date that is on or after the
eighth anniversary of the Delivery Date and (iii) Section 4.02(a)(F) of the
Lease, January 15, 2015.
Termination Value. As of any Termination Date, the amount determined
by multiplying the Purchase Price by the percentage set forth in Schedule IV
of the Lease under the heading "Termination Value Factor" opposite such
Termination Date (as such Schedule IV may be adjusted from time to time as
provided in Section 3.04 of the Lease). Notwithstanding any other provisions
of the Lease, the Participation Agreement or the Indenture, each Termination
Value shall be, under any circumstances and in any event, an amount, together
with so much of the arrears portion of Basic Rent due and owing through the
date of payment of any amount calculated by reference to Termination Value as
does not constitute an Excepted Payment, at least sufficient to pay in full as
of such date of payment the aggregate unpaid principal amount of and accrued
interest on the Certificates outstanding on such date of payment. Subject to
the immediately preceding sentence, it is understood and agreed that the
amounts set forth on Schedule IV of the Lease, for dates other than Rent
Payment Dates on which arrears Basic Rent is due, fully reflect appropriate
Basic Rent accruals and credits of unearned Basic Rent and, accordingly, no
further accrual or credit shall be required whenever Termination Value is to
be calculated with reference to any such date.
Transaction Costs. Those costs and expenses set forth in Section
10.01(a) of the Participation Agreement.
Transportation Code. Title 49 of the United States Code, as amended
and in effect on the date of the Lease or as subsequently amended, or any
successor or substituted legislation at the time in effect and applicable, and
the regulations promulgated pursuant thereto.
Treasury Yield. At the time of determination with respect to any
Certificate, the interest rate (expressed as a semi-annual equivalent and as a
decimal and, in the case of United States Treasury bills, converted to a bond
equivalent yield) determined to be the per annum rate equal to the semi-annual
yield to maturity for United States Treasury securities maturing on the
Average Life Date on such Certificate and trading in the public securities
markets either as determined by interpolation between the most recent weekly
average yield to maturity for two series of United States Treasury securities,
trading in public securities markets, (i) one maturing as close as possible to,
but earlier than, the Average Life Date of such Certificate and (ii) the other
maturing as close as possible to, but later than, the Average Life Date of
such Certificate. In each case as published in the most recent H.15(519) or,
if a weekly average yield to maturity for United States Treasury securities
maturing on the Average Life Date of such Certificate is reported on the most
recent H.15 (519), such weekly average yield to maturity as published in such
H.15(919). "H.15(519)" means the weekly statistical release designated as
such, or any successor publication, published by the Board of Governors of the
Federal Reserve System. The date of determination of a Make-Whole Premium
will be the third Business Day prior to the applicable prepayment date and the
"most recent H.15(519)" means the H.15(519) published prior to the close of
business on the third Business Day prior to the applicable prepayment date.
Trust Agreement. The Trust Agreement (Federal Express Corporation
Trust No. N581FE), dated as of May 1, 1997, among the Owner Participants and
the Owner Trustee in its individual capacity.
Trust Estate. The Lessor's Estate.
Trust Indenture Act. The Trust Indenture Act of 1939, as amended.
Trust Indenture Estate. All estate, right, title and interest of the
Indenture Trustee in and to any of the property, rights, interests and
privileges granted to the Indenture Trustee pursuant to the Granting Clause of
the Indenture, other than Excepted Payments and any and all other rights of
the Owner Trustee or the Owner Participants expressly reserved to the Owner
Trustee or the Owner Participants pursuant to the Indenture.
Underwriters. Morgan Stanley & Co. Incorporated, First Chicago
Capital Markets, Inc., Goldman, Sachs & Co. and J.P. Morgan & Co.
Underwriting Agreement. The Underwriting Agreement dated May 22, 1997
among the Lessee and the Underwriters.
United States, U.S. or US. The United States of America.
U.S. Air Carrier. Any United States air carrier as to which there is
in force a certificate issued pursuant to Section 41102(a) or Section 41103 of
the Transportation Code, and as to which there is in force an air carrier
operating certificate issued pursuant to Chapter 447 of the Transportation
Code and Part 121 of the regulations under such Transportation Code, for
aircraft capable of carrying ten (10) or more individuals or 6,000 pounds or
more of cargo, or which may operate as an air carrier by certification or
otherwise under any successor or substitute provision thereof or in absence
thereof.
U.S. Person. A Person described in Section 7701(a)(30) of the Code.
Warranty Bill of Sale. The full warranty bill of sale covering the
Aircraft (and specifically referring to each Engine) executed by the Lessee,
as seller in favor of the Owner Trustee, as buyer, and to be dated the
Delivery Date.
WTC. Wilmington Trust Company, a Delaware banking corporation.
SCHEDULE III
PERMITTED COUNTRY LIST
Australia Malaysia
Austria Mexico
Belgium Netherlands
Canada New Zealand
Denmark Norway
Finland Philippines
France Singapore
Germany Spain
Iceland Sweden
Ireland Switzerland
Japan United Kingdom
Luxembourg
SCHEDULE IV
DEBT PORTION
Debt Portion $61,833,000
EXHIBIT A(1)(a)(i)
[Letterhead of Federal Express]
[Certificate Closing Date]
To the Addressees Listed on Schedule A Attached
Re: Federal Express Corporation Trust No. N581FE
Ladies and Gentlemen:
I am the Vice President - Law of Federal Express Corporation, a
Delaware corporation ("Federal"), and am familiar with the transactions
contemplated by the Participation Agreement (Federal Express Corporation Trust
No. N581FE), dated as of May 1, 1997 (the "Participation Agreement"), among
Federal, as Lessee, AmSouth Leasing, Ltd. and BTM Funding Corporation, as
Owner Participants, Wilmington Trust Company, not in its individual capacity,
except as otherwise stated, but solely as Owner Trustee, and First Security
Bank, National Association, not in its individual capacity, except as otherwise
stated, but solely as Indenture Trustee, Pass Through Trustee and Subordination
Agent, relating to the Aircraft. This opinion is being delivered pursuant to
Section 4.01(k)(i) of the Participation Agreement. Capitalized terms not
otherwise defined herein have the meanings assigned thereto in the
Participation Agreement.
The Participation Agreement provides, among other things, for
the financing on the Delivery Date of a portion of the Owner Trustee's payment
of the Purchase Price of one McDonnell Douglas MD-11F aircraft (the
"Aircraft"), using the proceeds from the public offering of the Pass Through
Certificates. Three Classes of Pass Through Certificates will be issued by
three Pass Through Trusts formed to acquire, among other securities, the
Certificates bearing a particular interest rate and having a particular
Maturity that will be issued under the Indenture.
In connection with the opinions expressed below, I have examined
or caused to be examined by attorneys under my supervision, (i) executed
counterparts of the Pass Through Agreement, the Series Supplements and the
Operative Agreements to be delivered on the Certificate Closing Date (the
"Certificate Closing Date Documents") and (ii) the forms of the Operative
Agreements to be delivered on the Delivery Date. We have relied upon originals
or copies, certified or otherwise identified to our satisfaction, of such
corporate records, documents and other instruments as in our judgment are
relevant to rendering the opinions expressed below. As to any facts material
to the opinions expressed below (other than any thereof relating to Federal),
we have relied upon the representations and warranties made in the Certificate
Closing Date Documents, the accuracy of which we have not independently
investigated or verified. In such examination, we have assumed the
genuineness of all signatures (other than the signatures of Federal) and the
authenticity of all documents submitted to us as originals and the conformity
with the originals of all documents submitted to us as copies. We have also
assumed that each of the parties to each of the Certificate Closing Date
Documents, other than Federal, has full power, authority and legal right to
enter into such Certificate Closing Date Documents and that each such
Certificate Closing Date Document has been duly authorized, executed and
delivered by each of such parties.
Based on the foregoing, it is my opinion that:
1. Federal is a corporation duly incorporated, validly
existing and in good standing under the laws of the State of Delaware, is a
"citizen of the United States" within the meaning of Section 40102(a)(15) of
the Transportation Code, and has or had, on the date of execution thereof, the
corporate power and authority to carry on its business as currently conducted
and to enter into and perform its obligations under the Certificate Closing
Date Documents to which it is a party. Federal is duly qualified to do
business and is in good standing in the State of Tennessee and each other
state of the United States in which its operations or the nature of its
business requires Federal to so qualify, except where the failure to so
qualify would not have a material adverse impact on Federal or its business.
2. Federal possesses all necessary certificates, franchises,
licenses, permits, rights and concessions and consents which are material to
the operation of the routes flown by it and the conduct of its business and
operations as currently conducted, and each such certificate, franchise,
license, permit, right and concession and consent is in full force and effect.
3. Each of the Certificate Closing Date Documents to which
Federal is a party has or had, on the date of execution thereof, been duly
authorized, executed and delivered by Federal and each constitutes the legal,
valid and binding obligation of Federal enforceable against Federal in
accordance with its terms. Each of the Certificate Closing Date Documents to
which Federal is to be a party and which are to be executed on the Delivery
Date has been duly authorized by Federal.
4. Neither the execution and delivery by Federal of the
Certificate Closing Date Documents to which Federal is a party, nor the
consummation of any of the transactions by Federal contemplated thereby, nor
the performance of the obligations thereunder by Federal, did at the time of
execution and delivery, or does presently (a) require any stockholder approval
or violate the certificate of incorporation or by-laws of Federal or (b)
conflict with or contravene the provisions of, or constitute a default under,
or result in the creation of any Lien (other than Liens permitted under
Section 6.01(a) of the Lease) upon the property of Federal under any law,
governmental rule or regulation, or the charter or bylaws of Federal or any
order, writ, injunction or decree of any court or governmental authority
against Federal or by which any of its properties may be bound or any
indenture, mortgage, contract or other agreement known to me to which Federal
is a party or by which it may be bound or, require the approval or consent of
any trustee or the holders of any indebtedness or obligations of Federal.
5. Neither the execution and delivery by Federal of the
Certificate Closing Date Documents to which it is a party, nor the
consummation of any transactions by Federal contemplated thereby, nor the
performance of the obligations thereunder by Federal, did or does, as the case
may be, (a) require the consent or approval of, the giving of notice to, or
(except as described or contemplated in the Participation Agreement and the
Lease, all of which are required to be performed on or prior to the Certificate
Closing Date and which shall have been accomplished on or prior to the
Certificate Closing Date) the registration with, or the taking of any other
action in respect of, the Aeronautics Authority, the Securities and Exchange
Commission or any other authority or agency of the federal government or of
the State of Tennessee other than (i) the registration of the issuance and
sale of the Pass Through Certificates under the Securities Act and (ii)
compliance with the securities laws of each applicable state, or (b)
contravene any judgment or order applicable to or binding on Federal or any
law or governmental rule or regulation of the United States or of the State of
Tennessee.
6. There is no pending, or to my knowledge, threatened action
or proceeding before any court or administrative agency which individually (or
in the aggregate in the case of any group of related lawsuits) is expected to
have a material adverse effect on (A) the financial condition of Federal,
except for the matters described (a) under "Legal Proceedings" in Federal's
Annual Report on Form 10-K for the fiscal year ended May 31, 1996 (as updated
by Note 7 to the financial statements included in Federal's Quarterly Reports
on Form 10-Q for the fiscal quarters ended August 31, 1996, November 30, 1996
and February 28, 1997) and (b) in Federal's Current Reports on Form 8-K dated
June 7, 1996, August 16, 1996 and March 4, 1997, as to which I can express no
opinion at this time concerning Federal's liability (if any) or the effect of
any adverse determination upon the business, condition (financial or
otherwise) or operations of Federal or (B) the ability of Federal to perform
its obligations under the Certificate Closing Date Documents.
7. Federal is a duly certificated "air carrier" within the
meaning of the Transportation Code, and a holder of a certificate under
Sections 41102(a) and 41103 of the Transportation Code, and an "air carrier
operating certificate" issued under Chapter 447 of the Transportation Code for
aircraft capable of carrying ten (10) or more individuals or 6,000 pounds or
more of cargo, and each such certificate is in full force and effect.
8. Federal's principal place of business and chief executive
office (as such term is defined in the Uniform Commercial Code in effect in the
State of Tennessee) are located at 2005 Corporate Avenue, Memphis, Shelby
County, Tennessee.
9. Federal is not, and is not directly or indirectly
controlled by or acting on behalf of any Person which is, an "investment
company" within the meaning of the Investment Company Act of 1940, as amended.
The opinions expressed in paragraph 3 above as to the
enforceability of the Certificate Closing Date Documents to which Federal is a
party are based upon the assumption for purposes of such opinions and without
independent analysis that, notwithstanding the respective choice of laws
clauses in the Certificate Closing Date Documents, the governing law with
respect to each of the Certificate Closing Date Documents is identical in all
relevant respects to the law of the State of Tennessee. Insofar as the
foregoing opinion relates to the enforceability of any instrument, such
enforceability is subject to applicable bankruptcy, insolvency and other
similar laws affecting the enforcement of creditors' rights generally (whether
such enforceability is considered in a proceeding in equity or at law). The
enforceability of the remedies provided under the Lease may also be limited by
applicable laws which may affect the remedies provided therein but which do
not in my opinion affect the validity of the Lease or make such remedies
inadequate for the practical realization of the benefits intended to be
provided thereby.
I do not express any opinion as to matters governed by any law
other than the Federal laws of the United States of America, the corporation
law of the State of Delaware and the laws of the State of Tennessee.
This opinion is delivered to you solely for your use in
connection with the transaction described herein, and may not be used for any
other purpose, and may not be relied upon by any other person, without my prior
written consent.
George W. Hearn
SCHEDULE A
Owner Trustee
Wilmington Trust Company
1100 North Market Street
Rodney Square North
Wilmington, Delaware 19890-0001
Indenture Trustee, Pass Through Trustee & Subordination Agent
First Security Bank, National Association
79 South Main Street
Salt Lake City, Utah 84111
Owner Participants
AmSouth Leasing, Ltd.
c/o AmSouth Leasing Corporation
1900 Fifth Avenue North, 8th Floor
Birmingham, Alabama 35203
BTM Funding Corporation
c/o BTM Capital Corporation
125 Summer Street
Boston, Massachusetts 02110
Underwriters
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
First Chicago Capital Markets, Inc.
Corporate Securities
One First National Plaza
Chicago, Illinois 60670
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
J.P. Morgan & Co.
60 Wall Street
New York, New York 10260
Liquidity Provider
Kredietbank N.V., New York Branch
125 West 55th Street
New York, New York 10019
EXHIBIT A(1)(a)(ii)
[Letterhead of Federal Express]
[Delivery Date]
To the Addressees Listed on Schedule A Attached
Re: Federal Express Corporation Trust No. N581FE
Ladies and Gentlemen:
I am the Vice President - Law of Federal Express Corporation, a
Delaware corporation ("Federal"), and am familiar with the transactions
contemplated by the Participation Agreement (Federal Express Corporation Trust
No. N581FE), dated as of May 1, 1997 (the "Participation Agreement"), among
Federal, as Lessee, AmSouth Leasing, Ltd. and BTM Funding Corporation, as
Owner Participants, Wilmington Trust Company, not in its individual capacity,
except as otherwise stated, but solely as Owner Trustee, and First Security
Bank, National Association, not in its individual capacity, except as otherwise
stated, but solely as Indenture Trustee, Pass Through Trustee and Subordination
Agent, relating to the Aircraft. This opinion is being delivered pursuant to
Section 4.02(d)(i) of the Participation Agreement. Capitalized terms not
otherwise defined herein have the meanings assigned thereto in the
Participation Agreement.
The Participation Agreement provides, among other things, for
the financing on the Delivery Date of a portion of the Owner Trustee's payment
of the Purchase Price of one McDonnell Douglas MD-11F aircraft (the
"Aircraft"), using the proceeds from the public offering of the Pass Through
Certificates. Three Classes of Pass Through Certificates were issued by three
Pass Through Trusts formed to acquire, among other securities, the
Certificates bearing a particular interest rate and having a particular
Maturity that were issued under the Indenture, as supplemented by the related
Indenture and Security Agreement Supplement.
In connection with the opinions expressed below, I have examined
or caused to be examined by attorneys under my supervision, executed
counterparts of the Operative Agreements, the Pass Through Agreement and each
Series Supplement (the "Transaction Agreements"). We have relied upon
originals or copies, certified or otherwise identified to our satisfaction, of
such corporate records, documents and other instruments as in our judgment are
relevant to rendering the opinions expressed below. As to any facts material
to the opinions expressed below (other than any thereof relating to Federal),
we have relied upon the representations and warranties made in the Transaction
Agreements, the accuracy of which we have not independently investigated or
verified. In such examination, we have assumed the genuineness of all
signatures (other than the signatures of Federal) and the authenticity of all
documents submitted to us as originals and the conformity with the originals of
all documents submitted to us as copies. We have also assumed that each of
the parties to each of the Transaction Agreements, other than Federal, has full
power, authority and legal right to enter into such Transaction Agreements and
that each such Transaction Agreement has been duly authorized, executed and
delivered by each of such parties.
Based on the foregoing, it is my opinion that:
1. Federal is a corporation duly incorporated, validly
existing and in good standing under the laws of the State of Delaware, is a
"citizen of the United States" within the meaning of Section 40102(a)(15) of
the Transportation Code, and has or had, on the date of execution thereof, the
corporate power and authority to carry on its business as currently conducted
and to enter into and perform its obligations under the Transaction Agreements
to which it is a party. Federal is duly qualified to do business and is in
good standing in the State of Tennessee and each other state of the United
States in which its operations or the nature of its business requires Federal
to so qualify, except where the failure to so qualify would not have a
material adverse impact on Federal or its business.
2. Federal possesses all necessary certificates, franchises,
licenses, permits, rights and concessions and consents which are material to
the operation of the routes flown by it and the conduct of its business and
operations as currently conducted, and each such certificate, franchise,
license, permit, right and concession and consent is in full force and effect.
3. Each of the Transaction Agreements to which Federal is a
party has or had, on the date of execution thereof, been duly authorized,
executed and delivered by Federal and each constitutes the legal, valid and
binding obligation of Federal enforceable against Federal in accordance with
its terms.
4. Neither the execution and delivery by Federal of the
Transaction Agreements to which Federal is a party, nor the consummation of
any of the transactions by Federal contemplated thereby, nor the performance
of the obligations thereunder by Federal, did at the time of execution and
delivery, or does presently (a) require any stockholder approval or violate the
certificate of incorporation or by-laws of Federal or (b) conflict with or
contravene the provisions of, or constitute a default under, or result in the
creation of any Lien (other than Liens permitted under Section 6.01(a) of the
Lease) upon the property of Federal under any law, governmental rule or
regulation, or the charter or bylaws of Federal or any order, writ, injunction
or decree of any court or governmental authority against Federal or by which
any of its properties may be bound or any indenture, mortgage, contract or
other agreement known to me to which Federal is a party or by which it may be
bound or, require the approval or consent of any trustee or the holders of any
indebtedness or obligations of Federal.
5. Neither the execution and delivery by Federal of the
Transaction Agreements to which it is a party, nor the consummation of any
transactions by Federal contemplated thereby, nor the performance of the
obligations thereunder by Federal, did or does, as the case may be, (a) require
the consent or approval of, the giving of notice to, or (except as described or
contemplated in the Participation Agreement and the Lease, all of which were or
are required to be performed on or prior to the Delivery Date and which were or
shall have been accomplished on or prior to the Delivery Date) the registration
with, or the taking of any other action in respect of, the Aeronautics
Authority, the Securities and Exchange Commission or any other authority or
agency of the federal government or of the State of Tennessee other than (i)
the registration of the issuance and sale of the Pass Through Certificates
under the Securities Act, (ii) compliance with the securities laws of each
applicable state and (iii) the filings and recordings referred to in paragraph
7 below, or (b) contravene any judgment or order applicable to or binding on
Federal or any law or governmental rule or regulation of the United States or
of the State of Tennessee.
6. There is no pending, or to my knowledge, threatened action
or proceeding before any court or administrative agency which individually (or
in the aggregate in the case of any group of related lawsuits) (i) is expected
to have a material adverse effect on (A) the financial condition of Federal,
except for the matters described (a) under "Legal Proceedings" in Federal's
Annual Report on Form 10-K for the fiscal year ended May 31, 1996 (as updated
by Note 7 to the financial statements included in Federal's Quarterly Reports
on Form 10-Q for the fiscal quarters ended August 31, 1996, November 30, 1996
and February 28, 1997) and (b) in Federal's Current Reports on Form 8-K dated
June 7, 1996, August 16, 1996 and March 4, 1997, as to which I can express no
opinion at this time concerning Federal's liability (if any) or the effect of
any adverse determination upon the business, condition (financial or
otherwise) or operations of Federal or (B) the ability of Federal to perform
its obligations under the Transaction Agreements, or (ii) involves the
Aircraft.
7. Except for the registration in the Owner Trustee's name of
the Aircraft pursuant to the Transportation Code, and except for the filing
and, where appropriate, recording, pursuant to the Transportation Code of (A)
the FAA Bill of Sale, (B) the Trust Agreement, (C) the Lease (with the Lease
Supplement covering the Aircraft, the Indenture and the Indenture and Security
Agreement Supplement covering the Aircraft attached as exhibits) and (D) the
Indenture (with the Indenture and Security Agreement Supplement covering the
Aircraft attached as an exhibit), no further action, including any filing or
recording of any document is necessary or advisable in order to establish and
perfect the Owner Trustee's title to and interest in the Aircraft as against
Federal and any third parties, or to perfect the first mortgage lien on the
Aircraft in favor of the Indenture Trustee in each case with respect to such
portion of the Aircraft as is covered by the recording system established by
the Transportation Code.
8. Federal is a duly certificated "air carrier" within the
meaning of the Transportation Code, and a holder of a certificate under
Sections 41102(a) and 41103 of the Transportation Code, and an "air carrier
operating certificate" issued under Chapter 447 of the Transportation Code for
aircraft capable of carrying ten (10) or more individuals or 6,000 pounds or
more of cargo, and each such certificate is in full force and effect.
9. On the date hereof the Owner Trustee received good and
valid title to the Aircraft free and clear of all Liens on file with the FAA,
except for Liens permitted under Section 6.01(a) of the Lease.
10. Federal's principal place of business and chief executive
office (as such term is defined in the Uniform Commercial Code in effect in the
State of Tennessee) are located at 2005 Corporate Avenue, Memphis, Shelby
County, Tennessee.
11. Federal is not, and is not directly or indirectly
controlled by or acting on behalf of any Person which is, an "investment
company" within the meaning of the Investment Company Act of 1940, as amended.
The opinions expressed in paragraph 3 above as to the
enforceability of the Transaction Agreements to which Federal is a party are
based upon the assumption for purposes of such opinions and without
independent analysis that, notwithstanding the respective choice of laws
clauses in the Transaction Agreements, the governing law with respect to each
of the Transaction Agreements is identical in all relevant respects to the law
of the State of Tennessee. Insofar as the foregoing opinion relates to the
enforceability of any instrument, such enforceability is subject to applicable
bankruptcy, insolvency and other similar laws affecting the enforcement of
creditors' rights generally (whether such enforceability is considered in a
proceeding in equity or at law). The enforceability of the remedies provided
under the Lease may also be limited by applicable laws which may affect the
remedies provided therein but which do not in my opinion affect the validity of
the Lease or make such remedies inadequate for the practical realization of the
benefits intended to be provided thereby.
I do not express any opinion as to matters governed by any law
other than the Federal laws of the United States of America, the corporation
law of the State of Delaware and the laws of the State of Tennessee.
As to the matters referred to in paragraphs 5, 7 and 9, I have
relied on the opinion of Daugherty, Fowler & Peregrin of even date herewith, to
the extent such matters are addressed in such counsel's opinion and subject to
the assumptions and qualifications expressed therein.
This opinion is delivered to you solely for your use in
connection with the transaction described herein, and may not be used for any
other purpose, and may not be relied upon by any other person, without my prior
written consent.
George W. Hearn
SCHEDULE A
Owner Trustee
Wilmington Trust Company
1100 North Market Street
Rodney Square North
Wilmington, Delaware 19890-0001
Indenture Trustee, Pass Through Trustee & Subordination Agent
First Security Bank, National Association
79 South Main Street
Salt Lake City, Utah 84111
Owner Participants
AmSouth Leasing, Ltd.
c/o AmSouth Leasing Corporation
1900 Fifth Avenue North, 8th Floor
Birmingham, Alabama 35203
BTM Funding Corporation
c/o BTM Capital Corporation
125 Summer Street
Boston, Massachusetts 02110
Underwriters
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
First Chicago Capital Markets, Inc.
Corporate Securities
One First National Plaza
Chicago, Illinois 60670
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
J.P. Morgan & Co.
60 Wall Street
New York, New York 10260
Liquidity Provider
Kredietbank N.V., New York Branch
125 West 55th Street
New York, New York 10019
EXHIBIT A(1)(b)(i)
[Letterhead of Davis Polk & Wardwell]
[Certificate Closing Date]
To Each of the Parties named on Schedule A Hereto
Re: Federal Express Corporation Trust No. N581FE
Ladies and Gentlemen:
We have acted as special counsel for Federal Express
Corporation, a Delaware corporation ("Federal Express"), in connection with
the transactions contemplated by the Participation Agreement (Federal Express
Corporation Trust No. N581FE), dated as of May 1, 1997 (the "Participation
Agreement"), among Federal Express, as Lessee, AmSouth Leasing, Ltd. and BTM
Funding Corporation, as Owner Participants, Wilmington Trust Company, not in
its individual capacity, except as otherwise stated, but solely as Owner
Trustee, and First Security Bank, National Association, not in its individual
capacity, except as otherwise stated, but solely as Indenture Trustee, Pass
Through Trustee and Subordination Agent, relating to the Aircraft. This
opinion is being delivered pursuant to Section 4.01(k)(v) of the Participation
Agreement. Capitalized terms not otherwise defined herein have the meanings
assigned thereto in the Participation Agreement.
The Participation Agreement provides, among other things, for
the financing on the Delivery Date of a portion of the Owner Trustee's payment
of the Purchase Price of one McDonnell Douglas MD-11F Aircraft using the
proceeds from the public offering of the Pass Through Certificates. On the
Certificate Closing Date, three Classes of Pass Through Certificates will be
issued by separate Pass Through Trusts, each formed to acquire, among other
securities, the Certificates bearing a particular interest rate and having a
particular Maturity that will be issued under the Indenture.
In connection with the opinions expressed below, we have
examined executed counterparts of the Operative Agreements, the Pass Through
Certificates, the Pass Through Agreement and each Series Supplement (the
"Certificate Closing Date Documents") and the forms of the Operative
Agreements to be delivered on the Delivery Date. We have also examined
originals, or copies certified to our satisfaction, of such other agreements,
documents, certificates and statements of governmental officials and corporate
officers as we have deemed necessary or advisable as a basis for such
opinions. In such examination, we have assumed the genuineness of all
signatures and the authenticity of all documents submitted to us as originals
and the conformity with the originals of all documents submitted to us as
copies.
As to any facts material to our opinions expressed below, we
have, with your consent, relied on the representations and warranties made in
or pursuant to the Participation Agreement and the other documents referred to
therein, the accuracy of which we have not independently verified. In
addition, we have, when relevant facts were not independently established by
us, relied, to the extent we deemed such reliance proper, upon certificates of
public officials and certificates, telegrams and other written or telephoned
statements of officers of the parties referred to herein.
Based on the foregoing, it is our opinion that:
1. Assuming (i) the due authorization, execution and delivery
of the Certificate Closing Date Documents by each of the parties to each such
document (other than Federal Express), (ii) each such party has full power and
legal right to enter into and perform its respective obligations under the
Certificate Closing Date Documents, (iii) that the execution, delivery and
performance of each of the Certificate Closing Date Documents by each of the
parties thereto will not violate the respective parties' constituent documents,
(iv) the due authorization, execution, issuance and delivery by the Owner
Trustee, and the due authentication by the Indenture Trustee, of the
Certificates to be issued under the Indenture in accordance with the terms of
the Indenture, (v) the due authorization, execution, issuance, delivery and
authentication by the Pass Through Trustee of the Pass Through Certificates to
be issued under the Pass Through Agreement and the Series Supplement relating
to such Pass Through Certificates, in each case in accordance with the terms
of the Pass Through Agreement and such Series Supplement, and (vi) that the
form of each Certificate Closing Date Document is in compliance with all
applicable laws and governmental rules and regulations (other than the laws of
the United States and the State of New York), then: (A) to the extent governed
by New York law, each Certificate Closing Date Document in form constitutes a
legal, valid and binding agreement of each party thereto enforceable against
each such party in accordance with its terms; (B) the Indenture creates, for
the benefit of the Holders, the security interest in the Trust Indenture
Estate that it purports to create, except that no opinion is given with
respect to perfection of such security interest on the date hereof; (C) the
Certificates, when issued to and acquired by the Pass Through Trustee, will be
legal, valid and binding obligations of the Owner Trustee enforceable against
the Owner Trustee in accordance with their terms and the terms of the
Indenture and will be entitled to the benefits of the Indenture, including the
benefit of the security interest created thereby, except that no opinion is
given with respect to perfection of such security interest on the date hereof;
(D) the Pass Through Certificates, when issued to and acquired by the
Underwriters in accordance with the Underwriting Agreement, will be legal,
valid and binding obligations of the Pass Through Trustee enforceable against
the Pass Through Trustee in accordance with their terms and will be entitled
to the benefits of the Pass Through Agreement and the Series Supplement
relating thereto; and (E) the beneficial interest of the Owner Participants
under the Trust Agreement in and to the properties which are part of the Trust
Indenture Estate is subject, to the extent provided in the Indenture, to the
Lien of the Indenture in favor of the Holders.
2. (a) Each of the Certificate Closing Date Documents to which
Federal Express is a party has been duly authorized, executed and delivered by
Federal Express. Each of the Operative Agreements to which Federal Express is
to be a party and which are to be delivered on the Delivery Date has been
authorized by Federal Express.
(b) The execution, delivery and performance by Federal Express
of each of the Certificate Closing Date Documents to which Federal Express is a
party do not, or did not on the date of execution thereof, violate, and fully
comply, or did fully comply on the date of execution thereof, with, any laws
and governmental rules and regulations of the State of New York that may be
applicable to Federal Express. The opinion set forth in this paragraph 2(b) is
rendered without regard to the taking of any action or the conduct of any other
business by Federal Express in the State of New York other than the
transactions contemplated by the Certificate Closing Date Documents.
3. The execution, delivery and performance of the Certificate
Closing Date Documents (other than the Certificates) by the Owner Trustee in
its individual or trust capacity, as the case may be, and the issuance,
execution, delivery and performance of the Certificates by the Owner Trustee
in its trust capacity do not violate, and fully comply with, any laws and
governmental rules and regulations of the State of New York that may be
applicable to the Owner Trustee in its individual or trust capacity, as the
case may be. The opinion set forth in this paragraph 3 is rendered without
regard to the effect, if any, on such issuance (in the case of the
Certificates), execution, delivery or performance, of the taking of any
action, the conduct of any business or the exercise of any other powers by
Wilmington Trust Company in its individual or trust capacity in the State of
New York not related to the transactions contemplated by the Certificate
Closing Date Documents. We have assumed that Wilmington Trust Company has
made the filings necessary to comply with Section 131.3 of the Banking Law of
the State of New York, however we express no opinion as to whether Wilmington
Trust Company is required to comply with said Section 131.3.
4. It is not necessary, in connection with the creation of
the beneficial interest of the Owner Participants in the Trust Indenture
Estate under the circumstances contemplated by the Participation Agreement to
register such beneficial interest under the Securities Act of 1933, as
amended, or to qualify the Trust Agreement under the Trust Indenture Act of
1939, as amended.
The foregoing opinions are subject to the following
qualifications:
(a) We have relied, with your consent, without independent
investigation and verification and subject to the assumptions and
qualifications contained therein, upon the opinion of George W. Hearn,
Vice President - Law of Federal Express to be delivered to you and
dated the date hereof, for purposes of the matters covered thereby.
(b) We are qualified to practice law in the State of New York,
and we do not purport to be experts on, or to express any opinion
herein concerning, any laws other than the laws of the State of New
York, the laws of the United States and the General Corporation Law
of the State of Delaware.
(c) The opinion contained in paragraph 1(A) above as to
enforceability is subject to (i) applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement
of creditors' rights generally and (ii) general principles of equity
which may affect the remedies provided in the agreements referred to
in said opinions, which laws and principles, however, do not in our
opinion make the remedies provided in said agreements inadequate for
the practical realization of the benefits of the security intended to
be provided thereby.
(d) This opinion is rendered solely to you at Federal Express's
request in connection with the above matter. This opinion may not be
relied upon by you for any other purpose or relied upon by any other
Person without our prior written consent.
Very truly yours,
Davis Polk & Wardwell
SCHEDULE A
Lessee
Federal Express Corporation
2007 Corporate Avenue
Memphis, Tennessee 38132
Owner Trustee
Wilmington Trust Company
1100 North Market Street
Rodney Square North
Wilmington, Delaware 19890-0001
Indenture Trustee, Pass Through Trustee & Subordination Agent
First Security Bank, National Association
79 South Main Street
Salt Lake City, Utah 84111
Owner Participants
AmSouth Leasing, Ltd.
c/o AmSouth Leasing Corporation
1900 Fifth Avenue North, 8th Floor
Birmingham, Alabama 35203
BTM Funding Corporation
c/o BTM Capital Corporation
125 Summer Street
Boston, Massachusetts 02110
Underwriters
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
First Chicago Capital Markets, Inc.
Corporate Securities
One First National Plaza
Chicago, Illinois 60670
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
J.P. Morgan & Co.
60 Wall Street
New York, New York 10260
Liquidity Provider
Kredietbank N.V., New York Branch
125 West 55th Street
New York, New York 10019
EXHIBIT A(1)(b)(ii)
[Letterhead of Davis Polk & Wardwell]
[Delivery Date]
To Each of the Parties named on Schedule A Hereto
Re: Federal Express Corporation Trust No. N581FE
Ladies and Gentlemen:
We have acted as special counsel for Federal Express
Corporation, a Delaware corporation ("Federal Express"), in connection with
the transactions contemplated by the Participation Agreement (Federal Express
Corporation Trust No. N581FE), dated as of May 1, 1997 (the "Participation
Agreement"), among Federal Express, as Lessee, AmSouth Leasing, Ltd. and BTM
Funding Corporation, as Owner Participants, Wilmington Trust Company, not in
its individual capacity but solely as Owner Trustee, and First Security Bank,
National Association, not in its individual capacity, except as otherwise
stated, but solely as Indenture Trustee, Pass Through Trustee and
Subordination Agent, relating to the Aircraft. This opinion is being
delivered pursuant to Section 4.02(d)(ii) of the Participation Agreement.
Capitalized terms not otherwise defined herein have the meanings assigned
thereto in the Participation Agreement.
The Participation Agreement provides, among other things, for
the financing on the Delivery Date of the Owner Trustee's payment of a portion
of the Purchase Price of one McDonnell Douglas MD-11F Aircraft (the "Aircraft")
using the proceeds from the public offering of the Pass Through Certificates.
On the Certificate Closing Date, three Classes of Pass Through Certificates
were issued by separate Pass Through Trusts, each formed to acquire, among
other securities, the Certificates bearing a particular interest rate and
having a particular Maturity issued under the Indenture. The Aircraft is to
be leased to Federal Express by the Owner Trustee pursuant to the Lease and
subjected to the Lien of the Indenture, and is to be delivered by the Owner
Trustee to the Lessee on this date, and in connection with the delivery of the
Aircraft, the Owner Trustee and Federal Express will execute and deliver the
Lease Supplement, and the Owner Trustee will execute and deliver the Indenture
and Security Agreement Supplement.
In connection with the opinions expressed below, we have
examined executed counterparts of the Operative Agreements, the Pass Through
Certificates, the Pass Through Agreement and each Series Supplement (the
"Transaction Agreements"). We have also examined originals, or copies
certified to our satisfaction, of such other agreements, documents,
certificates and statements of governmental officials and corporate officers
as we have deemed necessary or advisable as a basis for such opinions. In such
examination, we have assumed the genuineness of all signatures and the
authenticity of all documents submitted to us as originals and the conformity
with the originals of all documents submitted to us as copies.
As to any facts material to our opinions expressed below, we
have, with your consent, relied on the representations and warranties made in
or pursuant to the Participation Agreement and the other documents referred to
therein, the accuracy of which we have not independently verified. In
addition, we have, when relevant facts were not independently established by
us, relied, to the extent we deemed such reliance proper, upon certificates of
public officials and certificates, telegrams and other written or telephoned
statements of officers of the parties referred to herein.
Based on the foregoing, it is our opinion that:
1. With respect to that portion, if any, of the Aircraft and
the other property included in the Lessor's Estate as may not be covered by the
recording system established by the FAA pursuant to Section 44107 of the
Transportation Code, no filing or recording of any document or other action was
or is necessary in order to establish the Owner Trustee's title thereto and
interest therein as against Federal Express and any third parties.
2. Subject to execution and delivery of the Lease Supplement
and the Indenture and Security Agreement Supplement for the Aircraft and to the
registration of the Aircraft with the FAA in the name of the Owner Trustee, the
Lease, as supplemented, will create a valid leasehold interest in the
Aircraft, the entitlement thereof to the benefits of recordation under the
Transportation Code being subject to the due and timely filing and, where
appropriate, recording of (A) the FAA Bill of Sale, (B) the Trust Agreement,
(C) the Lease (with the Lease Supplement covering the Aircraft, the Indenture
and the Indenture and Security Agreement Supplement covering the Aircraft
attached as exhibits) and (D) the Indenture (with the Indenture and Security
Agreement Supplement covering the Aircraft attached as an exhibit), pursuant
to the Transportation Code, and assuming that at the time of such filing no
other documents relating to the Aircraft have been filed pursuant to the
Transportation Code.
3. Assuming (i) the due authorization, execution and delivery
of the Transaction Agreements by each of the parties to each such document
(other than Federal Express), (ii) each such party has full power and legal
right to enter into and perform its respective obligations under the
Transaction Agreements, (iii) that the execution, delivery and performance of
each of the Transaction Agreements by each of the parties thereto will not
violate the respective parties' constituent documents, (iv) the due
authorization, execution, issuance and delivery by the Owner Trustee, and the
due authentication by the Indenture Trustee, of the Certificates issued under
the Indenture in accordance with the terms of the Indenture, (v) the due
authorization, execution, issuance, delivery and authentication by the Pass
Through Trustee of the Pass Through Certificates issued under the Pass Through
Agreement and the Series Supplement relating to such Pass Through
Certificates, in each case in accordance with the terms of the Pass Through
Agreement and such Series Supplement, and (vi) that the form of each
Transaction Agreement is in compliance with all applicable laws and
governmental rules and regulations (other than the laws of the United States
and the State of New York), then: (A) to the extent governed by New York law,
each Transaction Agreement in form constitutes a legal, valid and binding
agreement of each party thereto enforceable against each such party in
accordance with its terms; (B) the Indenture creates, for the benefit of the
Holders, the security interest in the Trust Indenture Estate that it purports
to create; (C) the Certificates are legal, valid and binding obligations of
the Owner Trustee enforceable against the Owner Trustee in accordance with
their terms and the terms of the Indenture and are entitled to the benefits of
the Indenture, including the benefit of the security interest created thereby;
and (D) the beneficial interest of the Owner Participants under the Trust
Agreement in and to the properties which are part of the Trust Indenture
Estate is subject, to the extent provided in the Indenture, as supplemented by
the Indenture and Security Agreement Supplement, to the Lien of the Indenture
in favor of the Holders. The opinions set forth in this paragraph 3 are
subject to the due filing and recording, where appropriate, with the FAA of
the documents referred to in paragraph 2 above.
4. (a) Each of the Transaction Agreements to which Federal
Express is a party has been duly authorized, executed and delivered by Federal
Express.
(b) The execution, delivery and performance by Federal Express
of each of the Transaction Agreements to which Federal Express is a party do
not, or did not on the date of execution thereof, violate, and fully comply,
or did fully comply on the date of execution thereof, with, any laws and
governmental rules and regulations of the State of New York that may be
applicable to Federal Express. The opinion set forth in this paragraph 4(b)
is rendered without regard to the taking of any action or the conduct of any
other business by Federal Express in the State of New York other than the
transactions contemplated by the Transaction Agreements.
5. The execution, delivery and performance of the Transaction
Agreements (other than the Certificates) by the Owner Trustee in its individual
or trust capacity, as the case may be, and the issuance, execution, delivery
and performance of the Certificates by the Owner Trustee in its trust capacity
do not violate, and fully comply with, any laws and governmental rules and
regulations of the State of New York that may be applicable to the Owner
Trustee in its individual or trust capacity, as the case may be. The opinion
set forth in this paragraph 5 is rendered without regard to the effect, if
any, on such issuance (in the case of the Certificates), execution, delivery
or performance, of the taking of any action, the conduct of any business or
the exercise of any other powers by Wilmington Trust Company in its individual
or trust capacity in the State of New York not related to the transactions
contemplated by the Transaction Agreements. We have assumed that Wilmington
Trust Company has made the filings necessary to comply with Section 131.3 of
the Banking Law of the State of New York, however we express no opinion as to
whether Wilmington Trust Company is required to comply with said Section 131.3.
6. All the properties which are part of the Trust Indenture
Estate (including all right, title and interest of the Owner Trustee pledged
and mortgaged by it pursuant to the Indenture in and to the Aircraft and the
Lease) have been pledged and mortgaged with the Indenture Trustee as part of
the Trust Indenture Estate (subject to the due filing and, where appropriate,
recording of those documents referred to in paragraph 2 above and the
financing statement referred to in Section 4.02(f) of the Participation
Agreement), and the beneficial interest of the Owner Participants under the
Trust Agreement in and to such properties are subject, to the extent provided
in the Indenture, to the Lien of the Indenture in favor of the Holders of the
Certificates issued and to be issued under the Indenture.
7. The Indenture and Security Agreement Supplement, pursuant
to the Granting Clause of the Indenture, creates, as security for the
Certificates duly issued and to be issued under the Indenture, the first
priority security interest in the Aircraft it purports to create, the
perfection and rank thereof being subject to the registration with the FAA of
the Aircraft in the name of the Owner Trustee and the due filing and, where
appropriate, recording in accordance with the Transportation Code of the
documents referred to in paragraph 2 above. We express no opinion with
respect to the status of any security interest in any portion of the Aircraft
which does not constitute an "aircraft" or "aircraft engine", as defined in
paragraphs (6) and (7) of Section 40102(a) of the Transportation Code.
8. Except for (i) the filings and recordings referred to in
paragraph 2 above, (ii) the registration of the issuance and sale of the Pass
Through Certificates under the Securities Act and (iii) compliance with the
securities laws of each applicable state, neither the execution and delivery by
Federal Express of the Participation Agreement or any other Operative
Agreement to which it is a party, nor the consummation of any of the
transactions by Federal Express contemplated thereby, requires the consent or
approval of, the giving of notice to, or the registration with, or the taking
of any other action in respect of, the Department of Transportation, the FAA,
the Securities and Exchange Commission or any other Federal or New York State
governmental authority.
9. It is not necessary, in connection with the creation of
the beneficial interest of the Owner Participants in the Trust Indenture
Estate under the circumstances contemplated by the Participation Agreement to
register such beneficial interest under the Securities Act of 1933, as
amended, or to qualify the Trust Agreement under the Trust Indenture Act of
1939, as amended.
10. The provisions of Section 1110 of the United States
Bankruptcy Code will apply to the Aircraft for the benefit of the Lessor, as
lessor under and by reason of the Lease. The Lease, including the rights under
Section 1110 of the United States Bankruptcy Code, has been assigned to the
Indenture Trustee pursuant to the Indenture as part of the collateral for the
Certificates and, as assignee, the Indenture Trustee has the benefit of Section
1110.
The foregoing opinions are subject to the following
qualifications:
(a) We have relied, with your consent, without independent
investigation and verification and subject to the assumptions and
qualifications contained therein, upon the opinions of Daugherty,
Fowler & Peregrin and George W. Hearn, Vice President - Law of
Federal Express to be delivered to you and dated the date hereof, for
purposes of the matters covered thereby.
(b) We are qualified to practice law in the State of New York,
and we do not purport to be experts on, or to express any opinion
herein concerning, any laws other than the laws of the State of New
York, the laws of the United States and the General Corporation Law
of the State of Delaware. We express no opinion as to any matters
involving aviation law.
(c) The opinion contained in paragraph 3(A) above as to
enforceability is subject to (i) applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement
of creditors' rights generally and (ii) general principles of equity
which may affect the remedies provided in the agreements referred to
in said opinions, which laws and principles, however, do not in our
opinion make the remedies provided in said agreements inadequate for
the practical realization of the benefits of the security intended to
be provided thereby.
(d) This opinion is rendered solely to you at Federal Express's
request in connection with the above matter. This opinion may not be
relied upon by you for any other purpose or relied upon by any other
Person without our prior written consent.
Very truly yours,
Davis Polk & Wardwell
SCHEDULE A
Lessee
Federal Express Corporation
2007 Corporate Avenue
Memphis, Tennessee 38132
Owner Trustee
Wilmington Trust Company
1100 North Market Street
Rodney Square North
Wilmington, Delaware 19890-0001
Indenture Trustee, Pass Through Trustee & Subordination Agent
First Security Bank, National Association
79 South Main Street
Salt Lake City, Utah 84111
Owner Participants
AmSouth Leasing, Ltd.
c/o AmSouth Leasing Corporation
1900 Fifth Avenue North, 8th Floor
Birmingham, Alabama 35203
BTM Funding Corporation
c/o BTM Capital Corporation
125 Summer Street
Boston, Massachusetts 02110
Underwriters
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
First Chicago Capital Markets, Inc.
Corporate Securities
One First National Plaza
Chicago, Illinois 60670
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
J.P. Morgan & Co.
60 Wall Street
New York, New York 10260
Liquidity Provider
Kredietbank N.V., New York Branch
125 West 55th Street
New York, New York 10019
EXHIBIT A(2)(a)
[Letterhead of Chadbourne & Parke]
[Certificate Closing Date]
To Each of the Parties named on Schedule A Hereto
Re: Federal Express Corporation Trust No. N581FE
Ladies and Gentlemen:
We have acted as special counsel to AmSouth Leasing, Ltd. and
BTM Funding Corporation (collectively, the "Owner Participants") and to
AmSouth Bank of Alabama and BTM Capital Corporation (collectively, the
"Guarantors"), in connection with the transactions contemplated by (a) the
Participation Agreement (Federal Express Corporation Trust No. N670FE), dated
as of May 1, 1997 (the "Participation Agreement"), among Federal Express
Corporation, as Lessee, the Owner Participants, Wilmington Trust Company, not
in its individual capacity but solely as Owner Trustee, and First Security
Bank, National Association, not in its individual capacity, except as
otherwise stated, but solely as Indenture Trustee, Pass Through Trustee and
Subordination Agent, (b) the Owner Participant Guaranty dated as of May 28,
1997 (the "AmSouth Guaranty") from AmSouth Bank of Alabama to each of the
beneficiaries named therein and (c) the Owner Participant Guaranty dated as of
May 28, 1997 (the "BTM Guaranty"; the AmSouth Guaranty and the BTM Guaranty
are collectively referred to herein as the "Guaranties") from BTM Funding
Corporation to each of the beneficiaries named therein.
This opinion is being delivered pursuant to Section 4.01(m)(ii)
of the Participation Agreement. Capitalized terms used but not defined herein
shall have the meanings specified in Schedule II to the Participation
Agreement.
As such counsel, we have examined the Participation Agreement,
the Tax Indemnity Agreement, the Trust Agreement, the Ancillary Agreement I
and the Guaranties and have examined and relied upon the representations and
warranties as to factual matters contained therein and upon the originals or
copies, certified to our satisfaction, of such records, documents and other
instruments as we have deemed necessary or advisable for the purposes of
rendering this opinion.
The Participation Agreement, the Tax Indemnity Agreement and
the Ancillary Agreement I are sometimes referred to collectively as the "Owner
Participant Documents".
Based on and in reliance upon the foregoing, we are of the
opinion that:
1. Assuming the due authorization, execution and delivery
thereof by the parties thereto, the Owner Participant Documents
constitute the legal, valid and binding obligations of each Owner
Participant, enforceable against each Owner Participant in accordance
with their respective terms.
2. Assuming the due authorization, execution and delivery
thereof by the Guarantors, the Guaranties constitute the legal, valid
and binding obligations of the Guarantors, enforceable against each
Guarantors in accordance with their respective terms.
3. No approval, consent, notice to, or filing or registration
with any United States federal or New York regulatory body is
necessary in connection with the execution and delivery and, on the
date hereof, the performance by each Owner Participant of or
compliance by each Owner Participants with any of the provisions of
the Owner Participant Documents or the Trust Agreement, the failure
of which to obtain would have a material adverse effect upon the
ability of any Owner Participant to enter into and perform its
obligations under the Owner Participant Documents.
4. No approval, consent, notice to, or filing or registration
with any United States federal or New York regulatory body is
necessary in connection with the execution and delivery and, on the
date hereof, the performance by each Guarantor of or compliance by
each Guarantor with any of the provisions of the Guaranties, the
failure of which to obtain would have a material adverse effect upon
the ability of any Guarantor to enter into and perform its
obligations under the Guaranties.
5. Neither the execution and delivery of the Owner Participant
Documents or the Trust Agreement by or on behalf of any Owner
Participant, nor the consummation by any Owner Participant of any of
the transactions contemplated thereby, violates any law, governmental
rule or regulation of the State of New York or the Federal government
of the United States or any governmental subdivision thereof.
6. Neither the execution and delivery of the Guaranties by or
on behalf of any Guarantor, nor the consummation by any Guarantor of
any of the transactions contemplated thereby, violates any law,
governmental rule or regulation of the State of New York or the
Federal government of the United States or any governmental
subdivision thereof.
Our opinions in paragraphs 1 and 2 are subject to and limited
by (i) applicable bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting the rights of creditors generally, and (ii) general
principles of equity whether considered in a proceeding at law or in equity.
We do not purport to express any opinion herein concerning any
laws other than the laws of the State of New York and the laws of the United
States. No opinion is expressed herein as to matters governed by (i) any
federal or state securities laws, (ii) any federal or state banking laws,
(iii) any federal or state tax laws, or (iv) the Federal Aviation Act.
This opinion is being delivered pursuant to the Participation
Agreement for your sole benefit and the benefit of your permitted successors
and assign, and no other person or entity shall be entitled to rely upon this
opinion without our express written consent. This opinion is limited to the
matters stated herein, and no opinion is implied or may be inferred beyond the
matters expressly stated herein.
Very truly yours,
Chadbourne & Parke LLP
SCHEDULE A
Lessee
Federal Express Corporation
2007 Corporate Avenue
Memphis, Tennessee 38132
Owner Trustee
Wilmington Trust Company
1100 North Market Street
Rodney Square North
Wilmington, Delaware 19890-0001
Indenture Trustee, Pass Through Trustee & Subordination Agent
First Security Bank, National Association
79 South Main Street
Salt Lake City, Utah 84111
Owner Participants
AmSouth Leasing, Ltd.
c/o AmSouth Leasing Corporation
1900 Fifth Avenue North, 8th Floor
Birmingham, Alabama 35203
BTM Funding Corporation
c/o BTM Capital Corporation
125 Summer Street
Boston, Massachusetts 02110
Underwriters
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
First Chicago Capital Markets, Inc.
Corporate Securities
One First National Plaza
Chicago, Illinois 60670
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
J.P. Morgan & Co.
60 Wall Street
New York, New York 10260
Liquidity Provider
Kredietbank N.V., New York Branch
125 West 55th Street
New York, New York 10019
EXHIBIT A(2)(b)
[Letterhead of Berkowitz, Lefovits, Isom & Kushner]
[Certificate Closing Date]
To Each of the Parties named on Schedule A Hereto
Re: Federal Express Corporation Trust No. N581FE
Ladies and Gentlemen:
We have acted as counsel to AmSouth Leasing, Ltd., an Alabama
limited partnership (the "Company"), AmSouth Leasing Corporation, an Alabama
corporation, sole general partner of the Company (the "General Partner") and
AmSouth Bank of Alabama, an Alabama banking corporation (the "Owner
Participant Guarantor"), in connection with the transactions contemplated by
(i) the Participation Agreement (Federal Express Corporation Trust No. N581FE),
dated as of May 1, 1997 (the "Participation Agreement"), among Federal Express
Corporation, as Lessee (the "Lessee"), the Company and BTM Funding
Corporation, as Owner Participants, Wilmington Trust Company, as Owner Trustee
(the "Owner Trustee"), and First Security Bank, National Association, as
Indenture Trustee (the "Indenture Trustee"), Pass Through Trustee (the "Pass
Through Trustee") and Subordination Agent (the "Subordination Agent"), (ii) the
Trust Agreement (Federal Express Corporation Trust No. N581FE), dated as of
May 1, 1997 (the "Trust Agreement"), by and between the Company, BTM Funding
Corporation, as an Owner Participant and the Owner Trustee, (iii) the Tax
Indemnity Agreement (Federal Express Corporation Trust No. N581FE), dated as
of May 1, 1997 (the "Tax Indemnity Agreement"), by and between the Company,
the Lessor and the Lessee, and (iv) the Guaranty Agreement, dated as of May 1,
1997 (the "Guaranty"), by the Owner Participant Guarantor to the Lessee, the
Owner Trustee, the Indenture Trustee, the Pass Through Trustee and the
Subordination Agent. This opinion is delivered pursuant to Section
4.01(k)(ii) of the Participation Agreement. Unless otherwise defined herein,
all capitalized terms used herein shall have the respective defined meanings
set forth in the Participation Agreement.
In connection with the opinions herein, we have examined
executed counterparts of the Participation Agreement, the Trust Agreement, the
Ancillary Agreement I, the Tax Indemnity Agreement (collectively, the "Owner
Participant Documents") and the Guaranty. We have further examined and relied
upon the accuracy of original, certified, conformed, photographic or
telecopied copies of such records, agreements, certificates and other documents
as we have deemed necessary or appropriate to enable us to render the opinions
expressed herein. In all such examinations, I have assumed the genuineness of
signatures on original documents (other than those of officers and directors of
the Company and Owner Participant Guarantor) and the conformity to such
original documents of all copies submitted to me as certified, conformed,
photographic or telecopied copies, and as to certificates and telegraphic and
telephonic confirmations given by public officials, we have assumed the same to
have been properly given and to be accurate. As to various questions of fact
material to our opinions, we have relied solely upon the accuracy of the
statements, representations and warranties made in the Owner Participant
Documents and the Guaranty. We have assumed, except with regard to the
Company and the Owner Participant Guarantor, that the Owner Participant
Documents and the Guaranty have been duly authorized, executed and delivered
by the respective parties thereto and that they constitute the legal, valid and
binding obligations of each other party thereto enforceable against each such
party in accordance with their respective terms.
Based upon the foregoing, I advise you that, in my opinion:
1. The Company is a limited partnership duly organized and
validly existing under the laws of the State of Alabama, and has the
full power, authority and legal right to carry on its present
business and operations, to own or lease its properties and enter
into and to carry out the transactions contemplated by the Owner
Participant Documents. The General Partner is a corporation duly
organized, validly existing and in good standing under the laws of
the State of Alabama. The Owner Participant Guarantor is a
corporation duly organized, validly existing and in good standing
under the laws of the State of Alabama as aa Alabama banking
corporation and has the full corporate power and authority to
execute, deliver and perform the terms of the Guaranty;
2. The Company has duly authorized, executed and delivered the
Owner Participant Documents and each of the Owner Participant
Documents constitutes the legal, valid and binding obligation of the
Company, enforceable against the Company in accordance with its
respective terms, except as may be limited by bankruptcy, insolvency,
moratorium and other similar laws affecting the rights of creditors
generally and by the exercise of judicial discretion in the granting
of equitable remedies. The Owner Participant Guarantor has duly
authorized, executed and delivered the Guaranty and the Guaranty
constitutes the legal, valid and binding obligation of the Owner
Participant Guarantor, enforceable against the Owner Participant
Guarantor in accordance with its terms, except as may be limited by
bankruptcy, insolvency, moratorium and other similar laws affecting
the rights of creditors generally and by the exercise of judicial
discretion in the granting of equitable remedies;
3. None of the execution, delivery or performance by the
Company of the Owner Participant Documents, nor the compliance with
the terms and provisions thereof by the Company (a) requires the
consent or approval of, the giving of notice to, the registration
with, the recording or filing of any document with, or the taking or
any other action with respect to any governmental authority or agency
of the State of Alabama or of the federal government of the United
States; or (b) violates any law, governmental rule or regulation of
the State of Alabama or of the federal government of the United
States or any governmental authority or agency thereof; or (c)
results in the breach of any of the terms, conditions or provisions
of the Articles of Incorporation or By-Laws of the Company; or (d) to
the best of my knowledge is in violation of any judgment or order
applicable to or binding upon the Company or its properties, or would
violate or (except as contemplated by the Participation Agreement, the
Trust Agreement and the Tax Indemnity Agreement) would subject the
Trust Estate to any lien under any indenture, mortgage, bank credit
agreement, note or bond purchase agreement, long-term lease, license
or contract or any other agreement or instrument to which the Company
is a party or by which the Company is bound. Neither the execution,
delivery or performance by the Owner Participant Guarantor of the
Guaranty nor the compliance with the terms and provisions thereof by
the Owner Participant Guarantor (a) requires the consent or approval
of, the giving of notice to, the registration with, the recording or
filing of any document with, or the taking or any other action with
respect to any governmental authority or agency of the State of
Alabama or of the federal government of the United States; or (b)
violates any law, governmental rule or regulation of the State of
Alabama or of the federal government of the United States or any
governmental authority or agency thereof; or (c) results in the
breach of any of the terms, conditions or provisions of the Articles
of Incorporation or By-Laws of the Owner Participant Guarantor; or
(d) to the best of my knowledge is in violation of any judgment or
order applicable to or binding upon the Owner Participant Guarantor
or its properties, or would violate the provisions of, or constitute
a default under, any indenture, mortgage, contract or other agreement
to which the Owner Participant Guarantor is a party or by which the
Owner Participant Guarantor or any of its property may be bound, and
do not require approval of the shareholders of the Owner Participant
Guarantor or the approval or consent of any trustee or holder of
indebtedness of the Owner Participant Guarantor; and
4. There are no actions, suits, investigations or proceedings
pending or, to the best of my knowledge without independent
investigation, threatened against or affecting the Company or the
Owner Participant Guarantor in any court or before any administrative
agency or arbitrator, which, if adversely determined, would
materially adversely affect the ability of the Company to perform its
obligations under the Owner Participant Documents or the Guaranty, as
the case may be, and we are not aware of any pending or threatened
actions or proceedings before any court, administrative agency or
tribunal involving the Company or the Owner Participant Guarantor in
connection with the transactions contemplated by any of the Owner
Participant Documents or the Guaranty, as the case may be.
We are authorized to practice law in the State of Alabama and do
not hold ourselves out as an expert on the law of any state other than the
State of Alabama. Consequently, the foregoing opinions are limited to the
federal laws of the United States of America and the laws of the State of
Alabama, and we express no opinion as to the laws of any other state or
jurisdiction. Further, we have made no investigation and express no opinion,
as to any aviation law or other laws, statutes, rules or regulations
applicable due to the particular nature of the equipment subject to the Lease,
and we express no opinion as to securities laws.
This opinion is furnished by us at your request for your sole
benefit, and we agree that you and your successors and permitted assigns may
rely on the opinions expressed herein. This opinion may not be relied upon by
you for any other purpose, or relied upon by any other person, firm or
corporation for any purpose without our prior written consent.
Very truly yours,
Berkowitz, Lefkovits,
Isom & Kushner
SCHEDULE A
Lessee
Federal Express Corporation
2007 Corporate Avenue
Memphis, Tennessee 38132
Owner Trustee
State Street Bank and Trust Company
of Connecticut, National Association
Two International Place
4th Floor
Boston, Massachusetts 02110
Indenture Trustee, Pass Through Trustee & Subordination Agent
First Security Bank, National Association
79 South Main Street
Salt Lake City, Utah 84111
Underwriters
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
First Chicago Capital Markets, Inc.
Corporate Securities
One First National Plaza
Chicago, Illinois 60670
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
J.P. Morgan & Co.
60 Wall Street
New York, New York 10260
Liquidity Provider
Kredietbank N.V., New York Branch
125 West 55th Street
New York, New York 10019
EXHIBIT A(2)(c)
[Letterhead of BTM Funding Corporation]
[Certificate Closing Date]
To Each of the Parties named on Schedule A Hereto
Re: Federal Express Corporation Trust No. N581FE
Ladies and Gentlemen:
I have acted as counsel to BTM Funding Corporation (the
"Company"), in connection with the transactions contemplated by the
Participation Agreement (Federal Express Corporation Trust No. N581FE), dated
as of May 1, 1997 (the "Participation Agreement"), among Federal Express
Corporation, as Lessee (the "Lessee"), the Company and AmSouth Leasing, Ltd.,
as Owner Participants, Wilmington Trust Company, as Owner Trustee (the "Owner
Trustee"), and First Security Bank, National Association, as Indenture Trustee
(the "Indenture Trustee"), Pass Through Trustee (the "Pass Through Trustee")
and Subordination Agent (the "Subordination Agent"), (ii) the Trust Agreement
(Federal Express Corporation Trust No. N581FE), dated as of May 1, 1997 (the
"Trust Agreement"), by and between the Company, AmSouth Leasing, Ltd., as an
Owner Participant and the Owner Trustee, (iii) the Tax Indemnity Agreement
(Federal Express Corporation Trust No. N581FE), dated as of May 1, 1997 (the
"Tax Indemnity Agreement"), by and between the Company, the Lessor and the
Lessee. This opinion is delivered pursuant to Section 4.01(k)(ii) of the
Participation Agreement. Unless otherwise defined herein, all capitalized
terms used herein shall have the respective defined meanings set forth in the
Participation Agreement.
In connection with the opinions herein, I have examined executed
counterparts of the Participation Agreement, the Trust Agreement, the Ancillary
Agreement I and the Tax Indemnity Agreement (collectively, the "Owner
Participant Documents"). I have further examined and relied upon the accuracy
of original, certified, conformed, photographic or telecopied copies of such
records, agreements, certificates and other documents as I have deemed
necessary or appropriate to enable me to render the opinions expressed herein.
In all such examinations, I have assumed the genuineness of signatures on
original documents (other than those of officers and directors of the Company)
and the conformity to such original documents of all copies submitted to me as
certified, conformed, photographic or telecopied copies, and as to certificates
and telegraphic and telephonic confirmations given by public officials, I have
assumed the same to have been properly given and to be accurate. As to
various questions of fact material to my opinions, I have relied solely upon
the accuracy of the statements, representations and warranties made in the
Owner Participant Documents. I have assumed, except with regard to the
Company, that the Owner Participant Documents have been duly authorized,
executed and delivered by the respective parties thereto and that they
constitute the legal, valid and binding obligations of each other party
thereto enforceable against each such party in accordance with their
respective terms.
Based upon the foregoing, I advise you that, in my opinion:
1. The Company is a corporation duly organized and validly
existing in good standing under the laws of the State of
Massachusetts, and has the full power, authority and legal right to
carry on its present business and operations, to own or lease its
properties and enter into and to carry out the transactions
contemplated by the Owner Participant Documents;
2. The Company has duly authorized, executed and delivered the
Owner Participant Documents and each of the Owner Participant
Documents constitutes the legal, valid and binding obligation of the
Company, enforceable against the Company in accordance with its
respective terms, except as may be limited by bankruptcy, insolvency,
moratorium and other similar laws affecting the rights of creditors
generally and by the exercise of judicial discretion in the granting
of equitable remedies;
3. None of the execution, delivery or performance by the
Company of the Owner Participant Documents, nor the compliance with
the terms and provisions thereof by the Company (a) requires the
consent or approval of, the giving of notice to, the registration
with, the recording or filing of any document with, or the taking or
any other action with respect to any governmental authority or agency
of the State of Massachusetts or of the federal government of the
United States; or (b) violates any law, governmental rule or
regulation of the State of Massachusetts or of the federal government
of the United States or any governmental authority or agency thereof;
or (c) results in the breach of any of the terms, conditions or
provisions of the Articles of Incorporation or By-Laws of the
Company; or (d) to the best of my knowledge is in violation of any
judgment or order applicable to or binding upon the Company or its
properties, or would violate or (except as contemplated by the
Participation Agreement, the Trust Agreement and the Tax Indemnity
Agreement) would subject the Trust Estate to any lien under any
indenture, mortgage, bank credit agreement, note or bond purchase
agreement, long-term lease, license or contract or any other
agreement or instrument to which the Company is a party or by which
the Company is bound; and
4. There are no actions, suits, investigations or proceedings
pending or, to the best of my knowledge without independent
investigation, threatened against or affecting the Company in any
court or before any administrative agency or arbitrator, which, if
adversely determined, would materially adversely affect the ability
of the Company to perform its obligations under the Owner Participant
Documents, and I are not aware of any pending or threatened actions
or proceedings before any court, administrative agency or tribunal
involving the Company in connection with the transactions
contemplated by any of the Owner Participant Documents.
I are authorized to practice law in the State of Massachusetts
and do not hold myself out as an expert on the law of any state other than the
State of Massachusetts. Consequently, the foregoing opinions are limited to
the federal laws of the United States of America and the laws of the State of
Massachusetts, and I express no opinion as to the laws of any other state or
jurisdiction. Further, I have made no investigation and express no opinion,
as to any aviation law or other laws, statutes, rules or regulations
applicable due to the particular nature of the equipment subject to the Lease,
and I express no opinion as to securities laws.
This opinion is furnished by me at your request for your sole
benefit, and I agree that you and your successors and permitted assigns may
rely on the opinions expressed herein. This opinion may not be relied upon by
you for any other purpose, or relied upon by any other person, firm or
corporation for any purpose without my prior written consent.
Very truly yours,
Nancy S. Rights
SCHEDULE A
Lessee
Federal Express Corporation
2007 Corporate Avenue
Memphis, Tennessee 38132
Owner Trustee
State Street Bank and Trust Company
of Connecticut, National Association
Two International Place
4th Floor
Boston, Massachusetts 02110
Indenture Trustee, Pass Through Trustee & Subordination Agent
First Security Bank, National Association
79 South Main Street
Salt Lake City, Utah 84111
Underwriters
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
First Chicago Capital Markets, Inc.
Corporate Securities
One First National Plaza
Chicago, Illinois 60670
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
J.P. Morgan & Co.
60 Wall Street
New York, New York 10260
Liquidity Provider
Kredietbank N.V., New York Branch
125 West 55th Street
New York, New York 10019
EXHIBIT A(2)(d)
[Letterhead of BTM Capital Corporation]
[Certificate Closing Date]
To Each of the Parties named on Schedule A Hereto
Re: Federal Express Corporation Trust No. N581FE
Ladies and Gentlemen:
I have acted as counsel to BTM Capital Corporation (the "Owner
Participant Guarantor"), in connection with the transactions contemplated by
(i) the Participation Agreement (Federal Express Corporation Trust No. N581FE),
dated as of May 1, 1997 (the "Participation Agreement"), among Federal Express
Corporation, as Lessee (the "Lessee"), BTM Funding Corporation and BTM Funding
Corporation, as Owner Participants, Wilmington Trust Company, as Owner Trustee
(the "Owner Trustee"), and First Security Bank, National Association, as
Indenture Trustee (the "Indenture Trustee"), Pass Through Trustee (the "Pass
Through Trustee") and Subordination Agent (the "Subordination Agent") and (ii)
the Guaranty Agreement, dated as of May 1, 1997 (the "Guaranty"), by the Owner
Participant Guarantor to the Lessee, the Owner Trustee, the Indenture Trustee,
the Pass Through Trustee and the Subordination Agent. This opinion is
delivered pursuant to Section 4.01(k)(ii) of the Participation Agreement.
Unless otherwise defined herein, all capitalized terms used herein shall have
the respective defined meanings set forth in the Participation Agreement.
In connection with the opinions herein, I have examined executed
counterparts of the Participation Agreement and the Guaranty. I have further
examined and relied upon the accuracy of original, certified, conformed,
photographic or telecopied copies of such records, agreements, certificates and
other documents as I have deemed necessary or appropriate to enable me to
render the opinions expressed herein. In all such examinations, I have assumed
the genuineness of signatures on original documents (other than those of
officers and directors of the Owner Participant Guarantor) and the conformity
to such original documents of all copies submitted to me as certified,
conformed, photographic or telecopied copies, and as to certificates and
telegraphic and telephonic confirmations given by public officials, I have
assumed the same to have been properly given and to be accurate. As to
various questions of fact material to my opinions, I have relied solely upon
the accuracy of the statements, representations and warranties made in the
Guaranty.
Based upon the foregoing, I advise you that, in my opinion:
1. The Owner Participant Guarantor is a corporation duly
organized, validly existing and in good standing under the laws of the
State of Massachusetts and has the full corporate power and authority
to execute, deliver and perform the terms of the Guaranty;
2. The Owner Participant Guarantor has duly authorized,
executed and delivered the Guaranty and the Guaranty constitutes the
legal, valid and binding obligation of the Owner Participant
Guarantor, enforceable against the Owner Participant Guarantor in
accordance with its terms, except as may be limited by bankruptcy,
insolvency, moratorium and other similar laws affecting the rights of
creditors generally and by the exercise of judicial discretion in the
granting of equitable remedies;
3. Neither the execution, delivery or performance by the Owner
Participant Guarantor of the Guaranty nor the compliance with the
terms and provisions thereof by the Owner Participant Guarantor (a)
requires the consent or approval of, the giving of notice to, the
registration with, the recording or filing of any document with, or
the taking or any other action with respect to any governmental
authority or agency of the State of Massachusetts or of the federal
government of the United States; or (b) violates any law,
governmental rule or regulation of the State of Massachusetts or of
the federal government of the United States or any governmental
authority or agency thereof; or (c) results in the breach of any of
the terms, conditions or provisions of the Articles of Incorporation
or By-Laws of the Owner Participant Guarantor; or (d) to the best of
my knowledge is in violation of any judgment or order applicable to or
binding upon the Owner Participant Guarantor or its properties, or
would violate the provisions of, or constitute a default under, any
indenture, mortgage, contract or other agreement to which the Owner
Participant Guarantor is a party or by which the Owner Participant
Guarantor or any of its property may be bound, and do not require
approval of the shareholders of the Owner Participant Guarantor or
the approval or consent of any trustee or holder of indebtedness of
the Owner Participant Guarantor; and
4. There are no actions, suits, investigations or proceedings
pending or, to the best of my knowledge without independent
investigation, threatened against or affecting the Owner Participant
Guarantor in any court or before any administrative agency or
arbitrator, which, if adversely determined, would materially
adversely affect the ability of the Owner Participant Guarantor to
perform its obligations under the Guaranty and I are not aware of any
pending or threatened actions or proceedings before any court,
administrative agency or tribunal involving the Owner Participant
Guarantor in connection with the transactions contemplated by any of
the Guaranty.
I are authorized to practice law in the State of Massachusetts
and do not hold myself out as an expert on the law of any state other than the
State of Massachusetts. Consequently, the foregoing opinions are limited to
the federal laws of the United States of America and the laws of the State of
Massachusetts, and I express no opinion as to the laws of any other state or
jurisdiction. Further, I have made no investigation and express no opinion,
as to any aviation law or other laws, statutes, rules or regulations
applicable due to the particular nature of the equipment subject to the Lease,
and I express no opinion as to securities laws.
This opinion is furnished by me at your request for your sole
benefit, and I agree that you and your successors and permitted assigns may
rely on the opinions expressed herein. This opinion may not be relied upon by
you for any other purpose, or relied upon by any other person, firm or
corporation for any purpose without my prior written consent.
Very truly yours,
SCHEDULE A
Lessee
Federal Express Corporation
2007 Corporate Avenue
Memphis, Tennessee 38132
Owner Trustee
State Street Bank and Trust Company
of Connecticut, National Association
Two International Place
4th Floor
Boston, Massachusetts 02110
Indenture Trustee, Pass Through Trustee & Subordination Agent
First Security Bank, National Association
79 South Main Street
Salt Lake City, Utah 84111
Underwriters
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
First Chicago Capital Markets, Inc.
Corporate Securities
One First National Plaza
Chicago, Illinois 60670
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
J.P. Morgan & Co.
60 Wall Street
New York, New York 10260
Liquidity Provider
Kredietbank N.V., New York Branch
125 West 55th Street
New York, New York 10019
EXHIBIT A(3)
[Letterhead of Ray, Quinney & Nebeker]
[Certificate Closing Date]
To the Persons Listed in Schedule A Attached Hereto
Re: Federal Express Corporation Trust No. N581FE
Ladies and Gentlemen:
We have acted as special counsel to First Security Bank,
National Association, a national banking association ("First Security"), in
connection with the Participation Agreement (Federal Express Corporation Trust
No. N581FE), dated as of May 1, 1997 (the "Participation Agreement"), among
Federal Express Corporation, as Lessee, AmSouth Leasing, Ltd. and BTM Funding
Corporation, as Owner Participants, Wilmington Trust Company, not in its
individual capacity, except as otherwise stated, but solely as Owner Trustee,
and First Security, not in its individual capacity, except as otherwise
stated, but solely as Indenture Trustee, Pass Through Trustee and
Subordination Agent. Pursuant to the Participation Agreement, one McDonnell
Douglas MD-11F aircraft bearing U.S. Registration No. N581FE (the "Aircraft")
is being financed. This opinion is furnished pursuant to Section 4.01(k)(iv)
of the Participation Agreement. Capitalized terms used herein and not
otherwise defined are used as defined in the Participation Agreement, except
that references herein to any instrument shall mean such instrument as in
effect on the date hereof.
We have examined executed counterparts or copies otherwise
identified to our satisfaction of the following documents:
(a) The Participation Agreement;
(b) The Indenture;
(c) The Ancillary Agreement I;
(d) The Ancillary Agreement II:
(e) The Collateral Account Control Agreement; and
(f) The Certificates;
(each of the documents identified in paragraphs (a) through (f) above are
collectively referred to as the "Indenture Trustee Documents").
We have also examined originals or copies of such other
documents, such corporate records, certificates and other statements of
governmental officials and corporate officers and other representatives of the
corporations or entities referred to herein and such other instruments as we
have deemed necessary or appropriate for the purposes of this opinion.
Moreover, as to certain facts material to the opinions expressed herein, we
have relied upon representations and warranties contained in the Indenture
Trustee Documents.
Based upon the foregoing and upon an examination of such
questions of law as we have considered necessary or appropriate, and subject
to the assumptions, exceptions and qualifications set forth below, we advise
you that, in our opinion:
1. First Security is a national banking association duly
organized and validly existing under the laws of the United States of
America holding a valid certificate to do business as a national
banking association, with banking and trust powers, and each of First
Security and the Indenture Trustee, as the case may be, has or had,
on the date of execution thereof, full corporate power, authority and
legal right to execute, deliver and perform each of the Indenture
Trustee Documents to which it is or is to be a party and to
authenticate the Certificates delivered on the Certificate Closing
Date.
2. Each of First Security and the Indenture Trustee, as the
case may be, has duly authorized, executed and delivered each
Indenture Trustee Document to which it is a party; each such document
constitutes a legal, valid and binding obligation of the Indenture
Trustee (and, to the extent set forth in the respective Indenture
Trustee Document, of First Security) enforceable against the
Indenture Trustee (and, to the extent set forth in the respective
Indenture Trustee Document, against First Security) in accordance
with its terms.
3. The Certificates issued and dated the Certificate Closing
Date have been duly authenticated and delivered by the Indenture
Trustee pursuant to the terms of the Indenture.
4. Neither the authorization, execution and delivery by the
Indenture Trustee or First Security, as the case may be, of the
Indenture Trustee Documents, nor the authentication and delivery by
the Indenture Trustee of the Certificates nor the fulfillment or
compliance by the Indenture Trustee or First Security with the
respective terms and provisions thereof nor the consummation of any
of the transactions by the Indenture Trustee or First Security, as
the case may be, contemplated thereby, requires the consent or
approval of, the giving of notice to, the registration with, or the
taking of any other action in respect of, any court or administrative
or governmental authority or agency of the State of Utah or the
United States of America governing the banking or trust powers of
First Security.
5. The execution, delivery and performance by the Indenture
Trustee or First Security, as the case may be, of each of the
Indenture Trustee Documents and the authentication and delivery of
the Certificates by the Indenture Trustee are not in violation of the
charter or by-laws of First Security or of any law, governmental
rule, or regulation of the State of Utah or the United States of
America governing the banking or trust powers of First Security or,
to our knowledge, of any indenture, mortgage, bank credit agreement,
note or bond purchase agreement, long-term lease, license or other
agreement or instrument to which it is a party or by which it is
bound or, to our knowledge, of any judgment or order of the State of
Utah or the United States of America relating to the banking or trust
powers of First Security.
6. There are no fees, taxes or other governmental charges
payable by the Owner Trustee, the Indenture Trustee (except taxes
imposed on fees payable to First Security) or the Certificate Holders
to the State of Utah or any political subdivision thereof in
connection with the execution, delivery or performance of any of the
Operative Agreements or in connection with the issuance and
acquisition of the Certificates by the Certificate Holders or the
beneficial interests of the Certificate Holders in the Trust
Indenture Estate solely because First Security) (a) is incorporated
under the laws of the State of Utah, (b) has its principal place of
business in the State of Utah, (c) performs (in its individual
capacity or as Indenture Trustee) any or all of its duties under the
Indenture Trustee Documents in the State of Utah, and (d) engages in
any activities unrelated to the transactions contemplated by the
Indenture Trustee Documents in the State of Utah. Neither the
Indenture Trustee nor the trust created under the Indenture will be
subject to any fee, tax or other governmental charge (except for
taxes imposed on fees payable to First Security) under the laws of
the State of Utah or any political subdivision thereof in existence
on the date hereof, on, based on or measured by, directly or
indirectly, the gross receipts, net income or value of the Trust
Indenture Estate solely because First Security (a) is incorporated
under the laws of the State of Utah, (b) has its principal place of
business in the State of Utah, (c) performs (in its individual
capacity or as Indenture Trustee) any or all of its duties under the
Indenture Trustee Documents in the State of Utah, and (d) engages in
any activities unrelated to the transactions contemplated by the
Indenture Trustee Documents in the State of Utah. There is no fee,
tax or other governmental charge (except for taxes imposed on fees
payable to First Security) under the laws of the State of Utah or any
political subdivision thereof in existence on the date hereof, on,
based on or measured by any payments under the Certificates by reason
of the creation of the trust under the Indenture solely because First
Security (a) is incorporated under the laws of the State of Utah, (b)
has its principal place of business in the State of Utah, (c)
performs (in its individual capacity or as Indenture Trustee) any or
all of its duties under the Indenture Trustee Documents in the State
of Utah, and (d) engages in any activities unrelated to the
transactions contemplated by the Indenture Trustee Documents in the
State of Utah. We express no opinion as to whether or not any fees,
taxes or other charges are now or hereafter may be payable by the
Owner Participants to the State of Utah or any political subdivision
thereof in connection with (a) the execution, delivery or performance
by any of the Indenture, the Participation Agreement or any of the
other Operative Agreements and (b) the making by the Owner
Participants of its investment in the Aircraft.
7. There are no actions, suits, investigations or proceedings
pending or, to our knowledge, threatened against or affecting First
Security or the Indenture Trustee, as the case may be, or any of its
properties in any court or before any administrative agency or
arbitrator, which, if adversely determined, would materially
adversely affect the ability of First Security or the Indenture
Trustee, as the case may be, to perform its obligations under any of
the Indenture Trustee Documents, and there are no pending or, to our
knowledge, threatened actions or proceedings before any court,
administrative agency or tribunal involving First Security or the
Indenture Trustee, as the case may be, in connection with the
transactions contemplated by any of the Indenture Trustee Documents.
The foregoing opinions are subject to the following assumptions,
exceptions and qualifications:
A. We are admitted to practice law in the State of Utah and we
do not hold ourselves out as being experts on the laws of any other
jurisdiction. The foregoing opinions are limited to the laws of the State of
Utah, the federal laws of the United States of America governing the banking
and trust powers of First Security and Title II of the United States Code
entitled "Bankruptcy". However, we express no opinion with respect to (i)
federal securities laws, including the Securities Act of 1933, as amended, the
Securities Exchange Act of 1934, as amended, and the Trust Indenture Act of
1939, as amended, (ii) the Federal Aviation Act of 1958, as amended and (iii)
state securities or blue sky laws. Insofar as the foregoing opinions relate
to the validity and enforceability in the State of Utah of the Certificates
and the other Indenture Trustee Documents expressed to be governed by the laws
of the State of New York, we have assumed that the laws of New York are
identical to the laws of Utah in all material respects, and that the
Certificates and such Indenture Trustee Documents constitute legal, valid,
binding and enforceable documents or instruments under such laws (as to which
we express no opinion). No opinion is expressed as to the priority of any
security interest or as to title to any part of the Trust Estate.
B. The foregoing opinions regarding enforceability of any
document or instrument, are subject to (i) applicable bankruptcy, insolvency,
moratorium, reorganization, receivership and similar laws affecting the rights
and remedies of creditors generally, and (ii) general principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or at law).
C. We have assumed the due authorization, execution and
delivery by each of the parties thereto, other than First Security and the
Indenture Trustee, of the Indenture Trustee Documents to which each is a party
and that each of such parties has the full power, authority and legal right to
execute and deliver each such document.
D. We have assumed that all signatures (other than those of the
Indenture Trustee or First Security) on documents and instruments examined by
us are genuine, that all documents and instruments submitted to us as originals
are authentic, and that all documents and instruments submitted to us as copies
conform with the originals, which facts we have not independently verified.
E. We have assumed that the Participation Agreement and the
transactions contemplated thereby are not within the prohibitions of Section
406 of the Employee Retirement Income Security Act of 1974.
This opinion is rendered solely for your benefit and may not be
relied upon by any other person or entity for any purpose without our prior
written consent.
Very truly yours,
Ray, Quinney & Nebeker
SCHEDULE A
Lessee
Federal Express Corporation
2007 Corporate Avenue
Memphis, Tennessee 38132
Owner Trustee
Wilmington Trust Company
1100 North Market Street
Rodney Square North
Wilmington, Delaware 19890-0001
Indenture Trustee, Pass Through Trustee & Subordination Agent
First Security Bank, National Association
79 South Main Street
Salt Lake City, Utah 84111
Owner Participants
AmSouth Leasing, Ltd.
c/o AmSouth Leasing Corporation
1900 Fifth Avenue North, 8th Floor
Birmingham, Alabama 35203
BTM Funding Corporation
c/o BTM Capital Corporation
125 Summer Street
Boston, Massachusetts 02110
Underwriters
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
First Chicago Capital Markets, Inc.
Corporate Securities
One First National Plaza
Chicago, Illinois 60670
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
J.P. Morgan & Co.
60 Wall Street
New York, New York 10260
Liquidity Provider
Kredietbank N.V., New York Branch
125 West 55th Street
New York, New York 10019
EXHIBIT A(4)(a)(i)
[Letterhead of Morris, James]
[Certificate Closing Date]
To Each of the Parties Listed on Schedule A Hereto
Re: Federal Express Corporation Trust No. N581FE
Ladies and Gentlemen:
We have acted as special counsel to Wilmington Trust Company, a
Delaware banking corporation ("Wilmington Trust"), in connection with the
Trust Agreement (Federal Express Corporation Trust No. N581FE), dated as of
May 1, 1997 (the "Trust Agreement"), among Wilmington Trust Company and
AmSouth Leasing, Ltd, and BTM Funding Corporation (the "Owner Participants").
Pursuant to the Participation Agreement (Federal Express Corporation Trust No.
N581FE), dated as of May 1, 1997 (the "Participation Agreement"), among
Federal Express Corporation, as Lessee (the "Lessee"), the Owner Participants,
First Security Bank, National Association, as Indenture Trustee (the
"Indenture Trustee"), Pass Through Trustee and Subordination Agent, and
Wilmington Trust, not in its individual capacity except as specifically set
forth therein but solely as Owner Trustee (the "Owner Trustee") under the
Trust Agreement, financing is being provided for the acquisition of one
McDonnell Douglas MD-11F aircraft bearing U.S. Registration No. N581FE (the
"Aircraft"). This opinion is furnished pursuant to Section 4.01(k)(i) of the
Participation Agreement. Capitalized terms used herein and not otherwise
defined are used as defined in or by reference in Schedule II to the
Participation Agreement, except that references herein to any instrument shall
mean such instrument as in effect on the date hereof.
We have examined executed counterparts or copies otherwise
identified to our satisfaction of the following documents:
(a) the Ancillary Agreement I;
(b) the Collateral Account Control Agreement;
(c) the Engine Warranty Assignment;
(d) the Indenture;
(e) the Lease;
(f) the Participation Agreement;
(g) the Trust Agreement;
(h) the Tax Indemnity Agreement; (each of the documents
identified in paragraphs (a) through (h) being
collectively referred to as the "Owner Trustee
Documents"); and
(i) The Certificate being issued today (the "Certificate").
We have also examined originals or copies of such other
documents, such corporate records, certificates and other statements of
governmental officials and corporate officers and other representatives of the
corporations or entities referred to herein and such other instruments as we
have deemed necessary or appropriate for the purposes of this opinion.
Moreover, as to certain facts material to the opinions expressed herein, we
have relied upon representations and warranties contained in the Owner Trustee
Documents.
Based upon the foregoing and upon an examination of such
questions of law as we have considered necessary or appropriate, and subject
to the assumptions, exceptions and qualifications set forth below, we advise
you that, in our opinion:
1. Wilmington Trust has been duly incorporated and is validly
existing as a Delaware banking corporation in good standing under the
laws of the State of Delaware, is a Citizen of the United States, and
each of Wilmington Trust and the Owner Trustee, as the case may be,
has full corporate power, authority and legal right to execute,
deliver and perform each of the Owner Trustee Documents and to issue,
execute, deliver and perform the Loan Certificate.
2. Each of Wilmington Trust and the Owner Trustee, as the case
may be, has duly authorized, executed and delivered each Owner Trustee
Document to which it is a party; each such document constitutes a
legal, valid and binding obligation of the Owner Trustee (and, to the
extent set forth in the respective Owner Trustee Document, of
Wilmington Trust) enforceable against the Owner Trustee (and, to the
extent set forth in the respective Owner Trustee Document, against
Wilmington Trust) in accordance with its terms; and the Trust
Agreement constitutes a legal, valid and binding obligation of the
Owner Participants enforceable against the Owner Participants in
accordance with its terms. The Loan Certificate has been duly
issued, executed and delivered by the Owner Trustee, pursuant to
authorization contained in the Trust Agreement, and constitutes the
legal, valid and binding obligation of the Owner Trustee enforceable
against the Owner Trustee in accordance with its terms and the terms
of the Indenture; and the Loan Certificate is entitled to the
benefits and security afforded by the Indenture in accordance with its
terms and the terms of the Indenture.
3. To our knowledge, there exist no Liens affecting the title
of the Owner Trustee to the Lessor's Estate resulting from claims
against Wilmington Trust not related to the ownership of the Lessor's
Estate or the administration of the Lessor's Estate or any other
transaction pursuant to the Indenture or any document included in the
Trust Indenture Estate.
4. All the properties which are part of the Trust Indenture
Estate have been pledged and mortgaged with the Indenture Trustee as
part of the Trust Indenture Estate, and the beneficial interest of
the Owner Participants under the Trust Agreement in and to such
properties is subject, to the extent provided in the Indenture, to
the Lien of the Indenture in favor of the holder(s) of the Loan
Certificate(s) issued and to be issued under the Indenture.
5. To the extent that the Uniform Commercial Code of the State
of Delaware (the "UCC") is applicable, except for the Indenture
Trustee's taking possession of all monies and securities (including
instruments) constituting part of the Trust Indenture Estate, no
action, including the filing or recording of any document, is
necessary (i) to create under the UCC the security interest in the
Trust Indenture Estate (including the grant and assignment unto the
Indenture Trustee of the security interest in all estate, right,
title and interest of the Owner Trustee in, to and under the Lease,
the Lease Supplement and the Participation Agreement), which the
Indenture by its terms purports to create in favor of the Indenture
Trustee, and (ii) to perfect in the State of Delaware such security
interest, except for the filing of a UCC financing statement in the
office of the Secretary of State of the State of Delaware with
respect to the security interest, which filing has been duly
effected, and the filing of continuation statements with respect
thereto required to be filed at periodic intervals under the UCC.
6. The Trust Agreement duly creates a legal and valid trust
under Delaware law, the trust created by the Trust Agreement has been
duly created and exists for the benefit of the Owner Participants,
and the Trust Agreement creates for the benefit of the Owner
Participants the interest in the properties referred to in Section
1.02 of the Trust Agreement which the Trust Agreement by its terms
purports to create, which interest is subject and subordinate to the
security interests created by the Indenture to the extent provided in
the Indenture.
7. Neither the authorization, execution and delivery by the
Owner Trustee or Wilmington Trust, as the case may be, of the Owner
Trustee Documents, nor the issuance, execution and delivery by the
Owner Trustee of the Loan Certificate nor the fulfillment or
compliance by the Owner Trustee or Wilmington Trust with the
respective terms and provisions thereof nor the consummation of any
of the transactions by the Owner Trustee or Wilmington Trust, as the
case may be, contemplated thereby, requires the consent or approval
of, the giving of notice to, the registration with, or the taking of
any other action in respect of, any court or administrative or
governmental authority or agency of the State of Delaware or the
United States of America governing the banking or trust powers of
Wilmington Trust.
8. Assuming that (i) the Aircraft is not used in Delaware and
is not physically located in Delaware at the commencement or
termination of the Term or during such Term, (ii) in connection with
any sale of the Aircraft, such Aircraft will not be physically
delivered in Delaware to a buyer nor be shipped from a point within
Delaware to a buyer, and (iii) the trust created by the Trust
Agreement is treated as a grantor trust for federal income tax
purposes within the contemplation of Sections 671 through 678 of the
Internal Revenue Code of 1986, there are no fees, taxes, or other
charges (except taxes imposed on fees payable to the Owner Trustee)
payable to the State of Delaware or any political subdivision thereof
in connection with the execution, delivery or performance by the
Owner Trustee, the Indenture Trustee, the Lessee or any Participant,
as the case may be, of the Owner Trustee Documents or in connection
with the making by each Owner Participant of its respective
investment in the Aircraft or its acquisition of the beneficial
interest in the Lessor's Estate or in connection with the issuance and
acquisition of the Loan Certificate, and neither the Owner Trustee,
the Lessor's Estate nor the trust created by the Trust Agreement will
be subject to any fee, tax or other governmental charge (except taxes
on fees payable to the Owner Trustee) under the laws of the State of
Delaware or any political subdivision thereof on, based on or measured
by, directly or indirectly, the gross receipts, net income or value
of the Lessor's Estate solely by reason of the creation or continued
existence of the trust under the terms of the Trust Agreement
pursuant to the laws of the State of Delaware or the Owner Trustee's
performance of its duties under the Trust Agreement.
9. The execution, delivery and performance by the Owner Trustee
or Wilmington Trust, as the case may be, of each of the Owner Trustee
Documents and the issuance, execution, delivery and performance of the
Loan Certificate by the Owner Trustee are not in violation of the
charter or by-laws of Wilmington Trust or of any law, governmental
rule, or regulation of the State of Delaware or the United States of
America governing the banking or trust powers of Wilmington Trust or,
to our knowledge, of any indenture, mortgage, bank credit agreement,
note or bond purchase agreement, long-term lease, license or other
agreement or instrument to which it is a party or by which it is
bound or, to our knowledge, of any judgment or order of the State of
Delaware or the United States of America relating to the banking or
trust powers of Wilmington Trust.
10. There is no fee, tax or other governmental charge under the
laws of the State of Delaware or any political subdivision thereof in
existence on the date hereof on, based on or measured by any payments
under the Loan Certificate or the beneficial interests in the Lessor's
Estate, by reason of the creation of the trust under the Trust
Agreement, pursuant to the laws of the State of Delaware or the Owner
Trustee's performance of its duties under the Trust Agreement, within
the State of Delaware, which would not have been imposed if
Wilmington Trust did not have its principal place of business and did
not perform its obligations under the Owner Trustee Documents in the
State of Delaware.
11. Under 6 Del.C. c. 13 or any other similar law of the
State of Delaware relating to fraudulent conveyances, no filing,
recording or publication is necessary or appropriate to protect the
interest of (i) the Owner Trustee as Lessor or owner with respect to
the Aircraft and (ii) the Indenture Trustee as secured party under
the Indenture against claims of creditors of the Owner Trustee
resulting from the sale and leaseback of the Aircraft pursuant to the
Bills of Sale and the Lease.
13. Neither a Delaware court nor a federal court applying
federal law or Delaware law, if properly presented with the issue and
after having properly considered such issue, would permit the Owner
Participants to terminate the Trust Agreement, except in accordance
with the Owner Trustee Documents or with the consent of the Indenture
Trustee, until the Lien of the Indenture on the Trust Indenture
Estate has not been released and until payment in full of the
principal of, and premium, if any and interest on, the Loan
Certificate.
14. Under the laws of the State of Delaware, as long as the
Trust Agreement has not been terminated in accordance with its terms
or with the consent of the Indenture Trustee, creditors of any person
that is an Owner Participant, holders of a lien against the assets of
any such person and representatives of creditors of any such person,
such as trustees, receivers or liquidators (whether or not any
insolvency proceeding has been commenced) (collectively, the
"Creditors") may acquire legal, valid and enforceable claims and
liens, as to the Trust Estate, only against the rights of such Owner
Participant under the Trust Agreement or in the Trust Estate, and may
not through the enforcement of such Creditor's rights, acquire any
greater rights than the rights of such Owner Participant with respect
to the Trust Agreement or the Trust Estate.
15. There are no actions, suits, investigations or proceedings
pending or, to our knowledge, threatened against or affecting
Wilmington Trust or the Owner Trustee, as the case may be, or any of
its properties in any court or before any administrative agency or
arbitrator, which, if adversely determined, would materially
adversely affect the ability of Wilmington Trust or the Owner
Trustee, as the case may be, to perform its obligations under any of
the Owner Trustee Documents, and there are no pending or, to our
knowledge, threatened actions or proceedings before any court,
administrative agency or tribunal involving Wilmington Trust or the
Owner Trustee, as the case may be, in connection with the
transactions contemplated by any of the Owner Trustee Documents.
The foregoing opinions are subject to the following assumptions,
exceptions and qualifications:
A. The foregoing opinions are limited to the federal laws of
the United States of America governing the banking and trust powers of
Wilmington Trust and the laws of the State of Delaware, except that the
opinion set forth in paragraph 13 above is limited to the laws of the State of
Delaware and Title 11 of the United States Code entitled "Bankruptcy", and the
opinion set forth in paragraph 14 above is limited to the laws of the State of
Delaware. In addition, we express no opinion with respect to (i) federal
securities laws, including the Securities Act of 1933, as amended, the
Securities Exchange Act of 1934, as amended, and the Trust Indenture Act of
1939, as amended, (ii) the Federal Aviation Act of 1958, as amended (except
with respect to the opinion set forth in paragraph 1 above concerning the
citizenship of Wilmington Trust), (iii) the Federal Communication Act of 1934,
as amended, or (iv) state securities or blue sky laws. Insofar as the
foregoing opinions relate to the validity and enforceability of the Loan
Certificate and the other Owner Trustee Documents expressed to be governed by
laws other than the laws of the State of Delaware, we have assumed that the
Loan Certificate and such Owner Trustee Documents constitute legal, valid,
binding and enforceable documents or instruments under such laws (as to which
we express no opinion).
B. The foregoing opinions regarding enforceability of any
document or instrument are subject to (i) applicable bankruptcy, insolvency,
moratorium, reorganization, receivership and similar laws affecting the rights
and remedies of creditors generally, and (ii) general principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or at law).
C. We have assumed the due authorization, execution and
delivery by each of the parties thereto (other than Wilmington Trust and the
Owner Trustee) of the Owner Trustee Documents to which each is a party and
that each of such parties has the full power, authority and legal right to
execute and deliver each such document.
D. We have assumed the due authentication of the Loan
Certificate by the Indenture Trustee.
E. We have assumed that all signatures (other than those of the
Owner Trustee or Wilmington Trust) on documents and instruments examined by us
are genuine, that all documents and instruments submitted to us as originals
are authentic, and that all documents and instruments submitted to us as
copies conform with the originals, which facts we have not independently
verified.
F. We do not purport to be experts in respect of, or express
any opinion concerning, aviation law or other laws, rules or regulations
applicable to the aircraft in general.
G. We have made no investigation of, and we express no opinion
concerning, the nature of the title to any part of the Lessor's Estate or the
priority of any mortgage or security interest.
H. We have assumed that the Participation Agreement and the
transactions contemplated thereby are not within the prohibitions of Section
406 of the Employee Retirement Income Security Act of 1974.
I. The opinions set forth in paragraphs 13 and 14 above are
subject to applicable fraudulent conveyance laws and principles of equity
(regardless of whether considered or applied in a proceeding in equity or at
law) and should be interpreted in accordance with Special Report by the TriBar
Opinion Committee, Opinions in the Bankruptcy Context: Rating Agency,
Structural Financing and Chapter 11 Transactions, 46 Bus.Law. 717 (1991).
This opinion is rendered solely for your benefit and may not be
relied upon by any other person or entity for any purpose without our prior
written consent, except that the law firm of Davis Polk & Wardwell may rely on
this opinion in connection with the rendering of its opinion dated the date
hereof in connection with the financing described herein.
Very truly yours,
Morris, James Hitchens & Williams
SCHEDULE A
Lessee
Federal Express Corporation
2007 Corporate Avenue
Memphis, Tennessee 38132
Owner Trustee
Wilmington Trust Company
1100 North Market Street
Rodney Square North
Wilmington, Delaware 19890-0001
Indenture Trustee, Pass Through Trustee & Subordination Agent
First Security Bank, National Association
79 South Main Street
Salt Lake City, Utah 84111
Owner Participants
AmSouth Leasing, Ltd.
c/o AmSouth Leasing Corporation
1900 Fifth Avenue North, 8th Floor
Birmingham, Alabama 35203
BTM Funding Corporation
c/o BTM Capital Corporation
125 Summer Street
Boston, Massachusetts 02110
Underwriters
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
First Chicago Capital Markets, Inc.
Corporate Securities
One First National Plaza
Chicago, Illinois 60670
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
+J.P. Morgan & Co.
60 Wall Street
New York, New York 10260
Liquidity Provider
Kredietbank N.V., New York Branch
125 West 55th Street
New York, New York 10019
[Letterhead of Bingham, Dana & Gould]
[Certificate Closing Date]
To Each of the Parties Listed on Schedule A Hereto
Re: Trust Indenture and Security Agreement (Federal Express
Corporation Trust No. N581FE) dated as of May 1, 1997 (the
"Indenture"), between First Security Bank, National Association
(the "Indenture Trustee"), and Wilmington Trust Company, not in
its individual capacity, but solely as Owner Trustee (the "Owner
Trustee")
Ladies and Gentlemen:
We have acted as special Connecticut counsel to the Owner
Trustee in connection with the Indenture and the Collateral Account Control
Agreement dated as of May 1, 1997 (the "Control Agreement"), among the Owner
Trustee, the Indenture Trustee and State Street Bank and Trust Company, as
Custodian (the "Custodian").
We are issuing this opinion solely in our capacity as counsel
to the Owner Trustee under the circumstances set forth in this paragraph and
solely as to the matters set forth herein. Pursuant to the Indenture, the
Owner Trustee purports to grant to the Indenture Trustee a security interest,
inter alia, in those securities and instruments, presently owned or hereafter
acquired by the Owner Trustee, that are from time to time credited to an
account numbered [*****] (the "Collateral Account") established by the Owner
Trustee with the Custodian and which securities and instruments the Owner
Trustee has directed the Custodian to identify on the books and records of the
Custodian as being subject to a security interest in favor of the Indenture
Trustee to secure the payment to the Indenture Trustee of the Owner Trustee's
obligations (the "Obligations") under the Indenture. Those securities and
instruments which the Owner Trustee has directed the Custodian to so identify
on the books of the Custodian as being subject to such security interest, and
which, at the time of reference thereto, have not been withdrawn from such
identification or the Collateral Account, are hereinafter referred to,
collectively, as the "Liquid Collateral." We have assumed with your
permission for purposes of this opinion that the Liquid Collateral consists
solely of (a) "securities", either "uncertificated securities" or
"certificated securities", as each such term is defined in Section 8-102 of
the Uniform Commercial Code as currently in effect in the State of Connecticut
(the "Connecticut UCC"), (b) "instruments" (as such term is defined in Section
9-105(1)(i) of the Connecticut UCC) and (c) "general intangibles" (as such
term is defined in Section 9-106 of the Connecticut UCC).
For purposes of this opinion, we have examined the Indenture,
the Control Agreement and such other documents and instruments as are referred
to as having been examined by us for purposes of our opinion letter dated May
___,1997, addressed to the parties listed on Schedule A hereto.
As to all matters of fact, we have examined and have relied
entirely upon the representations and warranties contained in and made
pursuant to the Indenture and the Control Agreement, without any independent
investigation of any kind.
We have assumed the genuineness of all signatures (other than
those on behalf of the Owner Trustee and the Custodian), the conformity to the
originals of all documents reviewed by us as copies, the authenticity and
completeness of all original documents reviewed by us in original or copy form,
and the legal competence of each individual executing any document (other than
on behalf of the Owner Trustee and the Custodian).
For purposes of this opinion, we have made such examination of
law as we have deemed necessary. This opinion is limited solely to the
internal substantive laws of the State of Connecticut as applied by courts
located in the State of Connecticut and, where applicable, (i) the revised
Article 8 of the Uniform Commercial Code (with Conforming and Miscellaneous
Amendments to Articles 1, 3, 4, 5, 9 and 10) 1994 Official Text (the "Revised
Article 8") and (ii) the federal laws of the United States of America, in each
case without regard to choice of law. No opinion is given as to the choice of
law which any tribunal may apply to the transactions referred to herein.
Our opinion is further subject to the following exceptions,
qualifications and assumptions, all of which we understand to be acceptable to
you:
(a) We have assumed without any independent investigation
that each party to the transactions contemplated by the Indenture or
the Control Agreement at all times relevant thereto (other than the
Owner Trustee) was duly organized, validly existing and in good
standing under the laws of the jurisdiction in which it was
incorporated or organized, and had and has the full power, authority
and legal right under its certificate of incorporation, articles of
organization and other governing documents, corporate or other
enterprise legislation and applicable laws, as the case may be, to
execute and deliver and perform its obligations under all documents
executed by it in connection with those transactions.
(b) We have assumed without any independent investigation (i)
the due authorization, execution and delivery of each of the Indenture
and the Control Agreement by the Indenture Trustee, (ii) that the
execution, delivery and performance by the Indenture Trustee of each
of the Indenture and the Control Agreement does not and will not
conflict with, or result in a breach of, the terms, conditions or
provisions of, or result in a violation of, or constitute a default
or require any consent (other than such consents as have been duly
obtained) under, any organizational document, any order, judgment,
arbitration award or stipulation, or any agreement, to which the
Indenture Trustee is a party or is subject or by which any of the
properties or assets of the Indenture Trustee is bound, (iii) that
the Owner Trustee has received "value," as defined under the
Connecticut UCC, for the incurrence of the Obligations, (iv) that,
whenever the Custodian receives instructions from the Owner Trustee
for the Custodian to note on its books and records that any
securities or instruments credited to the Collateral Account are to be
subject to a security interest in favor of the Indenture Trustee to
secure the payment of the Obligations, such instructions will have
been duly authorized by or on behalf of the Owner Trustee and (v)
that, when the Indenture Trustee is to act in connection with any of
the transactions contemplated by the Indenture, it is acting in its
capacity as Indenture Trustee.
(c) We have made no examination of, and no opinion is given
herein as to, the Owner Trustee's title to or other ownership rights
in, or the existence of any liens, charges or encumbrances on, or
adverse claims against, the Liquid Collateral, other than the
security interest in favor of the Indenture Trustee as contemplated
by the Indenture and the Control Agreement, and have assumed that the
Owner Trustee has, or at the time of any purported attachment of the
security interest in the relevant Liquid Collateral will have, rights
in the Liquid Collateral.
(d) The perfection and the effect of perfection and
non-perfection of a security interest in the Liquid Collateral that
comprises "uncertificated securities" are, pursuant to Section
9-103(6) of the Connecticut UCC, and the effectiveness of
registration by the issuer and the rights and duties of the issuer
with respect to the registration of transfer, pledge or release of an
"uncertificated security" are, pursuant to Section 8-106 of the
Connecticut UCC, in each case, governed by the laws of the respective
jurisdictions of organization of the issuer or issuers of such
securities, including the conflict of laws rules of such
jurisdictions. Therefore, we express no opinion with respect to such
matters regarding "uncertificated securities" issued by issuers
organized outside of the State of Connecticut other than book-entry
Treasury securities referred to below.
(e) We point out that, pursuant to Part 357 of Title 31 of the
United States Code of Federal Regulations ("CFR"), with respect to
United States "book-entry Treasury securities" maintained by a Federal
Reserve Bank and, pursuant to other relevant sections of the CFR, with
respect to various other securities issued or guaranteed by the
federal government of the United States or an agency thereof or a
corporation sponsored thereby and maintained by a Federal Reserve
Bank, the perfection of security interests granted by commercial,
non-governmental parties in book-entry Treasury securities, or such
other federal securities, as the case may be, held in a securities
account of a participant financial institution, such as the
Custodian, maintaining such account with such Federal Reserve Bank,
will be governed by the law of the jurisdiction determined in
accordance with Section 357.11 of Title 31 of the CFR. If that
jurisdiction has not adopted Revised Article 8, then such jurisdiction
will be deemed to have adopted Revised Article 8 for purposes of
determining the law governing such perfection. Accordingly, although
Revised Article 8 has not been enacted by Connecticut as part of the
Connecticut UCC, nevertheless, pursuant to Part 357 of Title 31 of the
CFR, Revised Article 8 governs the perfection of a security interest
in book-entry Treasury securities to the extent that Connecticut law
would otherwise be applicable thereto.
(f) We have also assumed that (i) any securities comprised in
the Liquid Collateral and held by Depository Trust Company or another
clearing corporation will be held by Depository Trust Company or such
other clearing corporation for the direct account of the Custodian
and not for the account of the Custodian through any other financial
intermediary, (ii) any securities comprised in the Liquid Collateral
and not constituting either (x) "certificated securities" (as defined
in Section 8-102 of the Connecticut UCC) for which the Custodian
physically holds the certificate or certificates evidencing solely
such securities, or (y) "uncertificated securities" (as defined in
Section 8-102 of the Connecticut UCC) for which the Custodian is the
registered owner on the books of the issuer solely of such
securities, will constitute, or will be held as part of, a fungible
bulk of such "securities" that are registered in the name of the
Custodian or are shown on the Custodian's account on the books of
another financial intermediary, (iii) any "certificated securities"
(as defined in Section 8-102 of the Connecticut UCC) comprised in the
Collateral, if held directly by the Custodian, will be at all times
in the physical possession of the Custodian, and any other
"instruments" (as defined in Section 9-105(1)(i) of the Connecticut
UCC) comprised in the Collateral will be at all times held directly
by and in the physical possession of the Custodian, and (iv) any
securities comprised in the Liquid Collateral consisting of
"book-entry Treasury securities" or other uncertificated federal
securities will be credited to a direct account of the Custodian with
a Reserve Bank (as such term is defined in the relevant section of
the CFR) and not for the account of the Custodian through a financial
intermediary.
(g) We do not express any opinion as to the attachment or
perfection of any security interest in (i) any securities that are
maintained with, or held on the system of, Cedel S.A., or any like
maintenance, clearing or settlement system operating outside of the
United States of America, (ii) any collateral of a type other than
"securities" or "general intangibles" (as defined in Section 9-106 of
the Connecticut UCC) or "instruments" (as defined in Section
9-105(1)(i) of the Connecticut UCC), (iii) the Collateral Account, to
the extent that the Collateral Account constitutes an asset, other
than general intangibles, separate from the property credited
thereto, (iv) any Liquid Collateral which, at the time of reference
thereto, is no longer identified as subject to a security interest
in favor of the Indenture Trustee or has otherwise been withdrawn from
the Collateral Account, or (v) any identifiable proceeds of any Liquid
Collateral (A) following the lapse of the ten day period set forth in
Section 9-306(3) of the Connecticut UCC, to the extent that such
proceeds do not constitute securities, instruments or general
intangibles in which a security interest is perfected in the manner
contemplated by this opinion, as if such proceeds were original
Liquid Collateral, (B) where such proceeds constitute securities and
in which proceeds a security interest is not perfected in the manner
contemplated by this opinion, as if such proceeds were original
collateral, or (C) where the proceeds constitute collateral which is
excluded from Article 8 or 9 of the Connecticut UCC.
(h) We express no opinion as to the priority of such security
interest over any other or competing interest in or claims against
such Liquid Collateral.
(i) We have assumed that (i) the Custodian, in the ordinary
course of business, accepts for deposit securities as a service for
its customers, maintains securities accounts in the names of such
customers reflecting ownership of or interests in such securities,
and, in regard to the transactions contemplated by the Indenture, is
acting in such capacity, (ii) all securities from time to time
credited to the Collateral Account and to be comprised in the Liquid
Collateral will have been "transferred" (within the meaning of
Section 8-313(1) of the Connecticut UCC) to the Custodian by the
issuers or prior holders of such Liquid Collateral, (iii) the records
of the Custodian indicate and will, at the time of reference thereto,
indicate that the aggregate amount of each security comprised in the
Liquid Collateral, together with all other such securities carried by
the Custodian for its customers and for its proprietary account, is
at least equal to the aggregate amount of such security carried by it
for its customers and for its proprietary account, (iv) the books and
records of the Custodian indicate and will, at the time of reference
thereto, indicate that the securities to be comprised in the Liquid
Collateral are registered on the books and records of the Custodian
as being for the beneficial account of the Owner Trustee, subject to,
as identified on such books and records, the security interest
therein in favor of the Indenture Trustee, and (v) the Custodian has
sent and, at the time of reference thereto, will have sent the
confirmations of such entries and identifications to the Indenture
Trustee and to Federal Express Corporation.
(j) In so far as our opinion relates to the enforceability of
any obligations of the Owner Trustee, the enforcement of such
obligations may be limited by bankruptcy, insolvency, reorganization,
moratorium, marshalling or other laws and rules of law affecting the
enforcement generally of creditors' rights and remedies (including
such as may deny giving effect to waivers of debtors' or guarantors'
rights); and we express no opinion as to (i) the status under Section
548 of the Bankruptcy Code and applicable state fraudulent conveyance
laws of the obligations of the Owner Trustee under the Indenture or
interests purported to be granted pursuant to the Indenture, (ii) the
enforceability of any particular provision of the Indenture relating
to remedies after default or as to the availability of any specific
or equitable relief of any kind (and we point out that the
enforcement of any of your rights may in all cases be subject to an
implied duty of good faith and fair dealing and to general principles
of equity, regardless of whether such enforceability is considered in
a proceeding at law or in equity, and, as to any of your rights to
collateral security, will be subject to a duty to act in a
commercially reasonable manner) or (iii) the enforceability of any
particular provision of the Indenture relating to (A) waivers of
defenses, of rights to trial by jury, or rights to object to
jurisdiction or venue and other rights or benefits bestowed by
operation of law, (B) the effect of suretyship defenses, or defenses
in the nature thereof, with respect to obligations of any applicable
guarantor, joint obligator or surety, (C) waivers of provisions which
are not capable of waiver under Sections 1-102(3) and 9-501(3) of the
Connecticut UCC, (D) the grant of powers of attorney to the Indenture
Trustee, (E) exculpation clauses, indemnity clauses and clauses
relating to releases or waivers of unmatured claims or rights, (F)
interest or other charges that may be usurious under applicable law,
or (G) the collection of interest on overdue interest or providing
for a penalty rate of interest or late charges on overdue or
defaulted obligations. However, notwithstanding the qualification set
forth in the foregoing clause (ii), and excluding the parenthetical
in that clause, subject to the other exceptions, qualifications and
limitations set forth in this opinion (including the parenthetical in
clause (ii) and subject to the fact that there may be economic
consequences arising out of any procedural or other delay on account
of the limitation or unenforceability of any particular provision of
the Indenture relating to remedies after default, such limitation or
unenforceability does not, in our judgment, render the provisions of
the Indenture and the Control Agreement relating to remedies after
default, taken as a whole, inadequate for the practical realization
of the benefits of enforcement of a security interest in the Liquid
Collateral following the receipt by the Custodian of an enforcement
notice properly given under the Indenture and the Control Agreement by
the Indenture Trustee to the Custodian with respect to such Liquid
Collateral.
(k) With respect to property as to which the security interest
purported to be granted pursuant to the Indenture attaches after the
date hereof, we call to your attention that Section 552 of the
Bankruptcy Code limits the extent to which assets acquired by a
debtor after the commencement of a case under the United States
Bankruptcy Code may be subject to a security interest arising from a
security agreement entered into by the debtor before the commencement
of such case. We further call to your attention that under Section
547 of the Bankruptcy Code, a security interest that attaches within
the relevant period set forth in Section 547(b)(4) of the Bankruptcy
Code may be avoidable under certain circumstances.
Based upon and subject to the foregoing, we are of the opinion
that:
1. The Indenture Trustee has, under the terms of the
Connecticut UCC and, in the case of book-entry Treasury securities,
under the CFR, a perfected security interest in the Liquid Collateral
that constitutes "securities" (as such term is defined in Section
8-102 of the Connecticut UCC), or "instruments" (as defined in
Section 9-105(1)(i) of the Connecticut UCC), and in the identifiable
proceeds thereof to secure the payment of the Obligations.
2. The Indenture creates, under the terms of the Connecticut
UCC, a valid security interest in such of the Liquid Collateral that
constitutes "general intangibles" (as such term is defined in Section
9-106 of the Connecticut UCC) and in the identifiable proceeds
thereof to secure the payment of the Obligations. Upon the filing of
a financing statement on form UCC-1 pursuant to the Connecticut UCC
with the Secretary of State of the State of Connecticut naming the
Owner Trustee as Debtor and the Indenture Trustee as Secured Party
and accurately describing the Liquid Collateral and the Collateral
Account, which filing has been duly effected, such security interest
will be perfected (to the extent that the perfection of a security
interest in the Liquid Collateral can be accomplished by the filing
in Connecticut of financing statements under the Connecticut UCC).
We point out that:
(a) The effectiveness of a financing statement will lapse (i)
on the expiration of a five-year period from their dates of filing,
or (if later) five years from the last date as to which such
financing statements were effective following the proper filing of
continuation statements with respect thereto, unless continuation
statements are filed within six months prior to the expiration of the
applicable five-year period, (ii) with respect to general intangibles
in which a security interest has been perfected by the filing of a
financing statement in the jurisdiction of the location of the
debtor, for a period of more than four months after the debtor has
changed its location from that jurisdiction to a new jurisdiction
unless such security is perfected in the new jurisdiction within the
earlier to occur of the end of such four month period or the date on
which such financing statement would have otherwise lapsed, and (iii)
with respect to "investment property," under and as defined in
Revised Article 8, in which a security interest has been perfected by
the filing of a financing statement in the jurisdiction of the
location of the debtor, from the time that the debtor changes its
location from that jurisdiction to a new jurisdiction unless such
security interest is perfected in the new jurisdiction on or before
the time of such change of location.
(b) If any debtor changes its name, identity or corporate
structure such that any financing statement becomes misleading, such
financing statement will be ineffective to perfect a security
interest in any collateral acquired by such debtor more than four
months after such change.
We assume no obligation to update this opinion as a result of
any change in any fact, circumstance or statute or other rule of law
occurring after the date hereof.
This opinion is delivered to you solely in connection with the
transactions referred to herein and for your sole use and no other
person or entity may rely on this opinion without our express written
consent.
Very truly yours,
Bingham, Dana & Gould LLP
SCHEDULE A
Lessee
Federal Express Corporation
2007 Corporate Avenue
Memphis, Tennessee 38132
Owner Trustee
Wilmington Trust Company
1100 North Market Street
Rodney Square North
Wilmington, Delaware 19890-0001
Indenture Trustee, Pass Through Trustee & Subordination Agent
First Security Bank, National Association
79 South Main Street
Salt Lake City, Utah 84111
Owner Participants
AmSouth Leasing, Ltd.
c/o AmSouth Leasing Corporation
1900 Fifth Avenue North, 8th Floor
Birmingham, Alabama 35203
BTM Funding Corporation
c/o BTM Capital Corporation
125 Summer Street
Boston, Massachusetts 02110
Underwriters
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
First Chicago Capital Markets, Inc.
Corporate Securities
One First National Plaza
Chicago, Illinois 60670
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
J.P. Morgan & Co.
60 Wall Street
New York, New York 10260
Liquidity Provider
Kredietbank N.V., New York Branch
125 West 55th Street
New York, New York 10019
EXHIBIT A(4)(a)(ii)
[Letterhead of Morris, James]
[Delivery Date]
To Each of the Parties Listed on Schedule A Hereto
Re: Federal Express Corporation Trust No. N581FE
Ladies and Gentlemen:
We have acted as special counsel to Wilmington Trust Company, a
Delaware banking corporation ("Wilmington Trust"), in connection with the
Trust Agreement (Federal Express Corporation Trust No. N581FE), dated as of
May 1, 1997 (the "Trust Agreement"), among Wilmington Trust Company and
AmSouth Leasing, Ltd, and BTM Funding Corporation (the "Owner Participants").
Pursuant to the Participation Agreement (Federal Express Corporation Trust No.
N581FE), dated as of May 1, 1997 (the "Participation Agreement"), among
Federal Express Corporation, as Lessee (the "Lessee"), the Owner Participants,
First Security Bank, National Association, as Indenture Trustee (the
"Indenture Trustee"), Pass Through Trustee and Subordination Agent, and
Wilmington Trust, not in its individual capacity except as specifically set
forth therein but solely as Owner Trustee (the "Owner Trustee") under the
Trust Agreement, financing is being provided for the acquisition of one
McDonnell Douglas MD-11F aircraft bearing U.S. Registration No. N581FE (the
"Aircraft"). This opinion is furnished pursuant to Section 4.01(k)(i) of the
Participation Agreement. Capitalized terms used herein and not otherwise
defined are used as defined in or by reference in Schedule II to the
Participation Agreement, except that references herein to any instrument shall
mean such instrument as in effect on the date hereof.
We have examined executed counterparts or copies otherwise
identified to our satisfaction of the following documents:
(a) the Ancillary Agreement I;
(b) the Collateral Account Control Agreement;
(c) the Engine Warranty Assignment;
(d) the Indenture;
(e) the Indenture and Security Agreement Supplement;
(f) the Lease;
(g) the Lease Supplement;
(h) the Participation Agreement;
(i) the Trust Agreement;
(j) the Tax Indemnity Agreement; (each of the documents
identified in paragraphs (a) through (j) being
collectively referred to as the "Owner Trustee
Documents"); and
(k) the Certificate issued on the Certificate Closing Date
(the "Certificate").
We have also examined originals or copies of such other
documents, such corporate records, certificates and other statements of
governmental officials and corporate officers and other representatives of the
corporations or entities referred to herein and such other instruments as we
have deemed necessary or appropriate for the purposes of this opinion.
Moreover, as to certain facts material to the opinions expressed herein, we
have relied upon representations and warranties contained in the Owner Trustee
Documents.
Based upon the foregoing and upon an examination of such
questions of law as we have considered necessary or appropriate, and subject
to the assumptions, exceptions and qualifications set forth below, we advise
you that, in our opinion:
1. Wilmington Trust has been duly incorporated and is validly
existing as a Delaware banking corporation in good standing under the
laws of the State of Delaware, is a Citizen of the United States, and
each of Wilmington Trust and the Owner Trustee, as the case may be,
has full corporate power, authority and legal right to execute,
deliver and perform each of the Owner Trustee Documents and to issue,
execute, deliver and perform the Loan Certificate.
2. The Owner Trustee has the power and authority to accept
title to and delivery of the Aircraft, and a representative of the
Owner Trustee has been duly authorized to accept title to and
delivery of the Aircraft on behalf of the Owner Trustee.
3. Each of Wilmington Trust and the Owner Trustee, as the case
may be, has duly authorized, executed and delivered each Owner Trustee
Document to which it is a party; each such document constitutes a
legal, valid and binding obligation of the Owner Trustee (and, to the
extent set forth in the respective Owner Trustee Document, of
Wilmington Trust) enforceable against the Owner Trustee (and, to the
extent set forth in the respective Owner Trustee Document, against
Wilmington Trust) in accordance with its terms; and the Trust
Agreement constitutes a legal, valid and binding obligation of the
Owner Participants enforceable against the Owner Participants in
accordance with its terms. The Loan Certificate has been duly
issued, executed and delivered by the Owner Trustee, pursuant to
authorization contained in the Trust Agreement, and constitutes the
legal, valid and binding obligation of the Owner Trustee enforceable
against the Owner Trustee in accordance with its terms and the terms
of the Indenture; and the Loan Certificate is entitled to the
benefits and security afforded by the Indenture in accordance with its
terms and the terms of the Indenture.
4. The Owner Trustee received from the Lessee such title to the
Aircraft as the Lessee conveyed to the Owner Trustee, subject to the
rights of the Owner Trustee and the Lessee under the Lease and the
security interest created pursuant to the Indenture and the Indenture
Supplement; and to our knowledge, there exist no Liens affecting the
title of the Owner Trustee to the Lessor's Estate resulting from
claims against Wilmington Trust not related to the ownership of the
Lessor's Estate or the administration of the Lessor's Estate or any
other transaction pursuant to the Indenture or any document included
in the Trust Indenture Estate.
5. All the properties which are part of the Trust Indenture
Estate have been pledged and mortgaged with the Indenture Trustee as
part of the Trust Indenture Estate, and the beneficial interest of
the Owner Participants under the Trust Agreement in and to such
properties is subject, to the extent provided in the Indenture, to
the Lien of the Indenture in favor of the holder(s) of the Loan
Certificate(s) issued and to be issued under the Indenture.
6. To the extent that the Uniform Commercial Code of the State
of Delaware (the "UCC") is applicable, except for the Indenture
Trustee's taking possession of all monies and securities (including
instruments) constituting part of the Trust Indenture Estate, no
action, including the filing or recording of any document, is
necessary (i) to create under the UCC the security interest in the
Trust Indenture Estate (including the grant and assignment unto the
Indenture Trustee of the security interest in all estate, right,
title and interest of the Owner Trustee in, to and under the Lease,
the Lease Supplement and the Participation Agreement), which the
Indenture by its terms purports to create in favor of the Indenture
Trustee, and (ii) to perfect in the State of Delaware such security
interest, except for the filing of a UCC financing statement in the
office of the Secretary of State of the State of Delaware with
respect to the security interest, which filing has been duly
effected, and the filing of continuation statements with respect
thereto required to be filed at periodic intervals under the UCC.
7. The Trust Agreement duly creates a legal and valid trust
under Delaware law, the trust created by the Trust Agreement has been
duly created and exists for the benefit of the Owner Participants,
and the Trust Agreement creates for the benefit of the Owner
Participants the interest in the properties referred to in Section
1.02 of the Trust Agreement which the Trust Agreement by its terms
purports to create, which interest is subject and subordinate to the
security interests created by the Indenture to the extent provided in
the Indenture.
8. Neither the authorization, execution and delivery by the
Owner Trustee or Wilmington Trust, as the case may be, of the Owner
Trustee Documents, nor the issuance, execution and delivery by the
Owner Trustee of the Loan Certificate nor the fulfillment or
compliance by the Owner Trustee or Wilmington Trust with the
respective terms and provisions thereof nor the consummation of any
of the transactions by the Owner Trustee or Wilmington Trust, as the
case may be, contemplated thereby, requires the consent or approval
of, the giving of notice to, the registration with, or the taking of
any other action in respect of, any court or administrative or
governmental authority or agency of the State of Delaware or the
United States of America governing the banking or trust powers of
Wilmington Trust.
9. Assuming that (i) the Aircraft is not used in Delaware and
is not physically located in Delaware at the commencement or
termination of the Term or during such Term, (ii) in connection with
any sale of the Aircraft, such Aircraft will not be physically
delivered in Delaware to a buyer nor be shipped from a point within
Delaware to a buyer, and (iii) the trust created by the Trust
Agreement is treated as a grantor trust for federal income tax
purposes within the contemplation of Sections 671 through 678 of the
Internal Revenue Code of 1986, there are no fees, taxes, or other
charges (except taxes imposed on fees payable to the Owner Trustee)
payable to the State of Delaware or any political subdivision thereof
in connection with the execution, delivery or performance by the
Owner Trustee, the Indenture Trustee, the Lessee or any Participant,
as the case may be, of the Owner Trustee Documents or in connection
with the making by each Owner Participant of its respective
investment in the Aircraft or its acquisition of the beneficial
interest in the Lessor's Estate or in connection with the issuance and
acquisition of the Loan Certificate, and neither the Owner Trustee,
the Lessor's Estate nor the trust created by the Trust Agreement will
be subject to any fee, tax or other governmental charge (except taxes
on fees payable to the Owner Trustee) under the laws of the State of
Delaware or any political subdivision thereof on, based on or measured
by, directly or indirectly, the gross receipts, net income or value
of the Lessor's Estate solely by reason of the creation or continued
existence of the trust under the terms of the Trust Agreement
pursuant to the laws of the State of Delaware or the Owner Trustee's
performance of its duties under the Trust Agreement.
10. The execution, delivery and performance by the Owner
Trustee or Wilmington Trust, as the case may be, of each of the Owner
Trustee Documents and the issuance, execution, delivery and
performance of the Loan Certificate by the Owner Trustee are not in
violation of the charter or by-laws of Wilmington Trust or of any law,
governmental rule, or regulation of the State of Delaware or the
United States of America governing the banking or trust powers of
Wilmington Trust or, to our knowledge, of any indenture, mortgage,
bank credit agreement, note or bond purchase agreement, long-term
lease, license or other agreement or instrument to which it is a
party or by which it is bound or, to our knowledge, of any judgment
or order of the State of Delaware or the United States of America
relating to the banking or trust powers of Wilmington Trust.
11. There is no fee, tax or other governmental charge under the
laws of the State of Delaware or any political subdivision thereof in
existence on the date hereof on, based on or measured by any payments
under the Loan Certificate or the beneficial interests in the Lessor's
Estate, by reason of the creation of the trust under the Trust
Agreement, pursuant to the laws of the State of Delaware or the Owner
Trustee's performance of its duties under the Trust Agreement, within
the State of Delaware, which would not have been imposed if
Wilmington Trust did not have its principal place of business and did
not perform its obligations under the Owner Trustee Documents in the
State of Delaware.
12. Under 6 Del.C. c. 13 or any other similar law of the
State of Delaware relating to fraudulent conveyances, no filing,
recording or publication is necessary or appropriate to protect the
interest of (i) the Owner Trustee as Lessor or owner with respect to
the Aircraft and (ii) the Indenture Trustee as secured party under
the Indenture against claims of creditors of the Owner Trustee
resulting from the sale and leaseback of the Aircraft pursuant to the
Bills of Sale and the Lease.
13. Neither a Delaware court nor a federal court applying
federal law or Delaware law, if properly presented with the issue and
after having properly considered such issue, would permit the Owner
Participants to terminate the Trust Agreement, except in accordance
with the Owner Trustee Documents or with the consent of the Indenture
Trustee, until the Lien of the Indenture on the Trust Indenture
Estate has not been released and until payment in full of the
principal of, and premium, if any and interest on, the Loan
Certificate.
14. Under the laws of the State of Delaware, as long as the
Trust Agreement has not been terminated in accordance with its terms
or with the consent of the Indenture Trustee, creditors of any person
that is an Owner Participant, holders of a lien against the assets of
any such person and representatives of creditors of any such person,
such as trustees, receivers or liquidators (whether or not any
insolvency proceeding has been commenced) (collectively, the
"Creditors") may acquire legal, valid and enforceable claims and
liens, as to the Trust Estate, only against the rights of such Owner
Participant under the Trust Agreement or in the Trust Estate, and may
not through the enforcement of such Creditor's rights, acquire any
greater rights than the rights of such Owner Participant with respect
to the Trust Agreement or the Trust Estate.
15. There are no actions, suits, investigations or proceedings
pending or, to our knowledge, threatened against or affecting
Wilmington Trust or the Owner Trustee, as the case may be, or any of
its properties in any court or before any administrative agency or
arbitrator, which, if adversely determined, would materially
adversely affect the ability of Wilmington Trust or the Owner
Trustee, as the case may be, to perform its obligations under any of
the Owner Trustee Documents, and there are no pending or, to our
knowledge, threatened actions or proceedings before any court,
administrative agency or tribunal involving Wilmington Trust or the
Owner Trustee, as the case may be, in connection with the
transactions contemplated by any of the Owner Trustee Documents.
The foregoing opinions are subject to the following assumptions,
exceptions and qualifications:
A. The foregoing opinions are limited to the federal laws of
the United States of America governing the banking and trust powers of
Wilmington Trust and the laws of the State of Delaware, except that the
opinion set forth in paragraph 13 above is limited to the laws of the State of
Delaware and Title 11 of the United States Code entitled "Bankruptcy", and the
opinion set forth in paragraph 14 above is limited to the laws of the State of
Delaware. In addition, we express no opinion with respect to (i) federal
securities laws, including the Securities Act of 1933, as amended, the
Securities Exchange Act of 1934, as amended, and the Trust Indenture Act of
1939, as amended, (ii) the Federal Aviation Act of 1958, as amended (except
with respect to the opinion set forth in paragraph 1 above concerning the
citizenship of Wilmington Trust), (iii) the Federal Communication Act of 1934,
as amended, or (iv) state securities or blue sky laws. Insofar as the
foregoing opinions relate to the validity and enforceability of the Loan
Certificate and the other Owner Trustee Documents expressed to be governed by
laws other than the laws of the State of Delaware, we have assumed that the
Loan Certificate and such Owner Trustee Documents constitute legal, valid,
binding and enforceable documents or instruments under such laws (as to which
we express no opinion).
B. The foregoing opinions regarding enforceability of any
document or instrument are subject to (i) applicable bankruptcy, insolvency,
moratorium, reorganization, receivership and similar laws affecting the rights
and remedies of creditors generally, and (ii) general principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or at law).
C. We have assumed the due authorization, execution and
delivery by each of the parties thereto (other than Wilmington Trust and the
Owner Trustee) of the Owner Trustee Documents to which each is a party and
that each of such parties has the full power, authority and legal right to
execute and deliver each such document.
D. The opinion set forth in paragraph 1 above concerning the
citizenship of Wilmington Trust is based upon the facts contained in an
affidavit of Wilmington Trust, made by its ______________, the facts set forth
in which we have not independently verified.
E. We have assumed the due authentication of the Loan
Certificate by the Indenture Trustee.
F. We have assumed that all signatures (other than those of the
Owner Trustee or Wilmington Trust) on documents and instruments examined by us
are genuine, that all documents and instruments submitted to us as originals
are authentic, and that all documents and instruments submitted to us as
copies conform with the originals, which facts we have not independently
verified.
G. We do not purport to be experts in respect of, or express
any opinion concerning, aviation law or other laws, rules or regulations
applicable to the aircraft in general.
H. We have made no investigation of, and we express no opinion
concerning, the nature of the title to any part of the Lessor's Estate or the
priority of any mortgage or security interest.
I. We have assumed that the Participation Agreement and the
transactions contemplated thereby are not within the prohibitions of Section
406 of the Employee Retirement Income Security Act of 1974.
J. The opinions set forth in paragraphs 13 and 14 above are
subject to applicable fraudulent conveyance laws and principles of equity
(regardless of whether considered or applied in a proceeding in equity or at
law) and should be interpreted in accordance with Special Report by the TriBar
Opinion Committee, Opinions in the Bankruptcy Context: Rating Agency,
Structural Financing and Chapter 11 Transactions, 46 Bus.Law. 717 (1991).
This opinion is rendered solely for your benefit and may not be
relied upon by any other person or entity for any purpose without our prior
written consent, except that the law firm of Davis Polk & Wardwell may rely on
this opinion in connection with the rendering of its opinion dated the date
hereof in connection with the financing described herein.
Very truly yours,
Morris, James Hitchens & Williams
SCHEDULE A
Lessee
Federal Express Corporation
2007 Corporate Avenue
Memphis, Tennessee 38132
Owner Trustee
Wilmington Trust Company
1100 North Market Street
Rodney Square North
Wilmington, Delaware 19890-0001
Indenture Trustee, Pass Through Trustee & Subordination Agent
First Security Bank, National Association
79 South Main Street
Salt Lake City, Utah 84111
Owner Participants
AmSouth Leasing, Ltd.
c/o AmSouth Leasing Corporation
1900 Fifth Avenue North, 8th Floor
Birmingham, Alabama 35203
BTM Funding Corporation
c/o BTM Capital Corporation
125 Summer Street
Boston, Massachusetts 02110
Underwriters
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
First Chicago Capital Markets, Inc.
Corporate Securities
One First National Plaza
Chicago, Illinois 60670
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
J.P. Morgan & Co.
60 Wall Street
New York, New York 10260
Liquidity Provider
Kredietbank N.V., New York Branch
125 West 55th Street
New York, New York 10019
EXHIBIT A(5)
[Letterhead of Ray, Quinney & Nebeker]
[Certificate Closing Date]
To the Persons Listed in Schedule A Attached Hereto
Re: Federal Express Corporation Trust No. N581FE
Ladies and Gentlemen:
We have acted as special counsel to First Security Bank,
National Association, a national banking association ("First Security"), in
connection with the Pass Through Trust Agreement dated as of May 1, 1997 (the
"Pass Through Trust Agreement"), as supplemented by the Series Supplements
dated the date hereof between Federal Express Corporation and the First
Security, not in its individual capacity, except as otherwise stated, but
solely as Pass Through Trustee, designated as Series Supplement 1997-1-A,
1997-1-B and 1997-1-C, respectively (the "Series Supplements") and the
Participation Agreement (Federal Express Corporation Trust No. N581FE), dated
as of May 1, 1997 (the "Participation Agreement"), among Federal Express
Corporation, as Lessee, AmSouth Leasing, Ltd. and BTM Funding Corporation, as
Owner Participants, Wilmington Trust Company, not in its individual capacity,
except as otherwise stated, but solely as Owner Trustee, and First Security,
not in its individual capacity, except as otherwise stated, but solely as
Indenture Trustee, Pass Through Trustee and Subordination Agent. Pursuant to
the Participation Agreement, one McDonnell Douglas MD-11F aircraft bearing
U.S. Registration No. N581FE (the "Aircraft") is being financed. This opinion
is furnished pursuant to Section 4.01(k)(iv) of the Participation Agreement.
Capitalized terms used herein and not otherwise defined are used as defined in
the Participation Agreement, except that references herein to any instrument
shall mean such instrument as in effect on the date hereof.
We have examined executed counterparts or copies otherwise
identified to our satisfaction of the following documents:
(a) The Pass Through Trust Agreement;
(b) The Series Supplements;
(c) The Pass Through Certificates;
(d) The Participation Agreement;
(e) The Intercreditor Agreement; and
(f) Each Liquidity Facility.
(each of the documents identified in paragraphs (a) through (e) are being
collectively referred to as the "Pass Through Trustee Documents" and each of
the documents identified in paragraphs (d) through (f) are being collectively
referred to as the "Subordination Agent Documents").
We have also examined originals or copies of such other
documents, such corporate records, certificates and other statements of
governmental officials and corporate officers and other representatives of the
corporations or entities referred to herein and such other instruments as we
have deemed necessary or appropriate for the purposes of this opinion.
Moreover, as to certain facts material to the opinions expressed herein, we
have relied upon representations and warranties contained in the Pass Through
Trustee Documents or the Subordination Agent Documents, as the case may be.
Based upon the foregoing and upon an examination of such
questions of law as we have considered necessary or appropriate, and subject
to the assumptions, exceptions and qualifications set forth below, we advise
you that, in our opinion:
With respect to the opinions set forth in paragraph 8 above,
with your permission we have relied upon, and this opinion is limited by, the
assumptions set forth in the discussion entitled "Certain Utah Taxes" in the
Prospectus Supplement to the Prospectus forming part of Registration Number
No. 333-07691 (the "Registration Statement") for the registration of the Pass
Through Certificates with the Securities and Exchange Commission. We express
no opinion as to the correctness of the foregoing assumptions and we have
conducted no independent investigation in this regard.
1. First Security is a national banking association duly
organized and validly existing under the laws of the United States of
America holding a valid certificate to do business as a national
banking association, with banking and trust powers.
2. Each of First Security, the Pass Through Trustee and the
Subordination Agent, as the case may be, has or had, on the date of
execution thereof, full corporate power, authority and legal right to
execute, deliver and perform each of the Pass Through Trustee
Documents and the Subordination Agent Documents, as the case may be,
and to authenticate the Pass Through Certificates delivered on the
Certificate Closing Date.
3. Each of First Security, the Pass Through Trustee and the
Subordination Agent has duly authorized, executed and delivered each
Pass Through Trustee Document or Subordination Agent Document, as the
case may be; each such document constitutes a legal, valid and
binding obligation of the Pass Through Trustee or the Subordination
Agent, as the case may be (and, to the extent set forth in the
respective Pass Through Trustee Document or Subordination Agent
Document, of First Security) enforceable against the Pass Through
Trustee or the Subordination Agent, as the case may be (and, to the
extent set forth in the respective Pass Through Trustee Document or
Subordination Agent Document, against First Security) in accordance
with its terms.
4. The Pass Through Certificates issued and dated the
Certificate Closing Date have been duly authorized and validly
executed, issued, delivered and authenticated by the Pass Through
Trustee pursuant to the Pass Through Trust Agreement and the Series
Supplements; and the Pass Through Certificates acquired by the
Underwriters under the Underwriting Agreement are enforceable against
the Pass Through Trustee and are entitled to the benefits of the
related Pass Through Trust Agreement and the related Series
Supplements.
5. No order, license, consent, permit, authorization or
approval of or exemption by, and no notice to or filing with, or the
taking of any other action in respect of, any Utah or Federal
governmental authority governing the banking or trust powers of First
Security, the Pass Through Trustee or the Subordination Agent, and no
filing, recording, publication or registration in any public office
is required under Utah or Federal law pertaining to its banking or
trust powers for the due execution, delivery or performance by First
Security, individually or as Pass Through Trustee or Subordination
Agent, as the case may be, of the Pass Through Trustee Documents
(other than the Pass Through Trust Agreement) or the Subordination
Agent Documents, as the case may be, and of the certificate of
authentication, as Pass Through Trustee, on the Pass Through
Certificates, or for the legality, validity, binding effect or
enforceability thereof against First Security, the Pass Through
Trustee or the Subordination Agent, as the case may be.
6. The execution, delivery and performance by the Pass Through
Trustee or First Security, as the case may be, of each of the Pass
Through Documents and the Subordination Agent or First Security, as
the case may be, of each of the Subordination Agent Documents, and the
issuance, execution, delivery and performance of the Pass Through
Certificates by the Pass Through Trustee are not or were not, on the
date of execution thereof, in violation of the charter or by-laws of
First Security or of any law, governmental rule, or regulation of the
State of Utah or the United States of America governing the banking
or trust powers of First Security or, to our knowledge, of any
indenture, mortgage, bank credit agreement, note or bond purchase
agreement, long-term lease, license or other agreement or instrument
to which it is a party or by which it is bound or, to our knowledge,
of any judgment or order of the State of Utah or the United States of
America relating to the banking or trust powers of First Security.
7. There are no actions, suits, investigations or proceedings
pending or, to our knowledge, threatened against or affecting First
Security, the Pass Through Trustee or the Subordination Agent or any
of its properties in any court or before any administrative agency or
arbitrator, which, if adversely determined, would materially adversely
affect the ability of First Security, the Pass Through Trustee or the
Subordination Agent, as the case may be, to perform its obligations
under any of the Pass Through Trustee Documents or the Subordination
Agent Documents, as the case may be, and there are no pending or, to
our knowledge, threatened actions or proceedings before any court,
administrative agency or tribunal involving First Security, the Pass
Through Trustee or the Subordination Agent in connection with the
transactions contemplated by any of the Pass Through Trustee
Documents or the Subordination Agent Documents, as the case may be.
8. Neither the trusts created by the Pass Through Trust
Agreement and the Series Supplements nor the Pass Through Trustee, in
its individual or trust capacity, as the case may be, nor their
respective Affiliates, successors or assigns, will be subject to any
tax (including, without limitation, net or gross income, tangible or
intangible property, net worth, capital, franchise or doing business
tax), fee or other governmental charge under the laws of the State of
Utah or any political subdivision thereof (other than taxes imposed
on the fees received by State Street Bank and Trust Company for
acting as Pass Through Trustee under the Series Supplements).
Certificate holders who are not residents of or otherwise subject to
tax in Utah will not be subject to any tax (including, without
limitation, net or gross income, tangible or intangible property, net
worth, capital, franchise or doing business tax), fee or other
governmental charge under the laws of the State of Utah or any
political subdivision thereof as a result of purchasing, owning
(including receiving payments with respect to) or selling a Pass
Through Certificate. There are no applicable taxes under the laws of
the State of Utah or any political subdivision thereof upon or with
respect to (a) the construction, mortgaging, financing, refinancing,
purchase, acquisition, acceptance, rejection, delivery, nondelivery,
transport, location, ownership, insurance, control, assembly,
possession, repossession, operation, use, condition, maintenance,
repair, sale, return, abandonment, replacement, preparation,
installation, storage, redelivery, manufacture, leasing, subleasing,
modification, rebuilding, importation, transfer of title, transfer
of registration, exportation or other application or disposition of
the Aircraft or any interest in any thereof, (b) payments of Rent or
other receipts, income or earnings arising therefrom or received with
respect to the Aircraft or any interest in any thereof or payable
pursuant to the Lease, (c) any amount paid or payable pursuant to any
Operative Agreements, (d) the Aircraft or any interest therein or the
applicability of the Lease to the Aircraft or any interest in any
thereof, (e) any or all of the Operative Agreements, any or all of
the Pass Through Certificates or any interest in any or all thereof
or the offering, registration, reregistration, issuance, acquisition,
modification, assumption, reissuance, refinancing or refunding of any
or all thereof, and any other documents contemplated thereby and
amendments or supplements hereto and thereto, (f) the payment of the
principal of, or interest or premium on, or other amounts payable
with respect to, any or all of the Pass Through Certificates, whether
as originally issued or pursuant to any refinancing, refunding,
assumption, modification or reissuance, or any other obligation
evidencing any loan in replacement of the loan evidenced by any or
all of the Pass Through Certificates, or (g) otherwise with respect
to or in connection with the transactions contemplated by the Pass
Through Trust Agreement, the Series Supplements, the Pass Through
Certificates and the Operative Agreements, which would not have been
imposed if the Pass Through Trustee had not had its principal place
of business in, had not performed (either in its individual capacity
or as Pass Through Trustee) any or all of its administrative duties
under the Pass Through Trust Agreement, the Series Supplements, the
Pass Through Certificates and the Operative Agreements in, and had not
engaged in any activities unrelated to the transactions contemplated
by the Pass Through Trust Agreement, the Series Supplements, the Pass
Through Certificates and the Operative Agreements in, the State of
Utah.
9. Each of the Certificates to be delivered to and registered
in the name of the Subordination Agent on the date hereof pursuant to
the Participation Agreement and the Intercreditor Agreement will be
held by the Subordination Agent in trust for the Pass Through Trustee
under the applicable Pass Through Trust Agreement.
Very truly yours,
Ray, Quinney & Nebeker
SCHEDULE A
Lessee
Federal Express Corporation
2007 Corporate Avenue
Memphis, Tennessee 38132
Owner Trustee
Wilmington Trust Company
1100 North Market Street
Rodney Square North
Wilmington, Delaware 19890-0001
Indenture Trustee, Pass Through Trustee & Subordination Agent
First Security Bank, National Association
79 South Main Street
Salt Lake City, Utah 84111
Owner Participants
AmSouth Leasing, Ltd.
c/o AmSouth Leasing Corporation
1900 Fifth Avenue North, 8th Floor
Birmingham, Alabama 35203
BTM Funding Corporation
c/o BTM Capital Corporation
125 Summer Street
Boston, Massachusetts 02110
Underwriters
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
First Chicago Capital Markets, Inc.
Corporate Securities
One First National Plaza
Chicago, Illinois 60670
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
J.P. Morgan & Co.
60 Wall Street
New York, New York 10260
Liquidity Provider
Kredietbank N.V., New York Branch
125 West 55th Street
New York, New York 10019
EXHIBIT A(6)(a)
[Letterhead of Kredietbank N.V.]
[Certificate Closing Date]
To Each of the Parties named on Schedule A Hereto
Re: Federal Express Corporation 1997-1
Enhanced Pass Through Certificates
Ladies and Gentlemen:
I am the manager of the Legal Department of Kredietbank N.V.
("Kredietbank") and have advised Kredietbank and its New York Branch (the
"Branch") in connection with (i) the Irrevocable Revolving Credit Agreement
Class A Certificates, dated as of May 1, 1997 (the "Class A Liquidity
Agreement"), between the Branch and First Security Bank, National Association,
a national banking association, as Subordination Agent under the Intercreditor
Agreement, defined below, and as agent and trustee for the Federal Express
Corporation Pass Through Trust 1997-1-A, (ii) the Irrevocable Revolving Credit
Agreement Class B Certificates, dated as of May 1, 1997 (the "Class B Liquidity
Agreement"), between the Branch and First Security Bank, National Association,
a national banking association, as Subordination Agent under the Intercreditor
Agreement, defined below, and as agent and trustee for the Federal Express
Corporation Pass Through Trust 1997-1-B (the "Intercreditor Agreement" and,
together with the Liquidity Agreements, the "Liquidity Documents"), and (iii)
the Intercreditor Agreement, dated as of May 1, 1997 (the "Intercreditor
Agreement"), among the Branch, First Security Bank, National Association, as
Pass Through Trustee and as Subordination Agent (the Liquidity Agreements and
the Intercreditor Agreement are hereinafter collectively the "Liquidity
Documents").
Capitalized terms herein which are undefined have the meanings
assigned to them in the Liquidity Documents.
I am rendering this opinion in my capacity as manager of the
Legal Department and without being personally liable to any extent for the
opinions expressed herein.
In connection with the opinions hereinafter given, I have
examined a copy of each of the Liquidity Documents and such other certificates,
documents, agreements and instruments as I have deemed necessary as a basis
for the opinions expressed below.
In such examination, I have assumed the genuineness of all
signatures, the authenticity of all agreements, certificates, instruments and
documents submitted to me as originals, and the conformity to the originals of
all agreements, certificates, instruments and documents submitted to me as
copies. As to questions of fact material to the opinions expressed below, I
have, when relevant facts were not independently established by me, examined
and relied upon representations of officers of Kredietbank.
Based upon the foregoing examination and assumptions, and
subject to the qualifications set forth below, I am of the opinion that:
1. Kredietbank is duly organized and validly existing as a
Belgian public law banking institution under the law of Belgium and
has full power and authority (corporate and otherwise) to execute,
deliver and perform the Liquidity Documents.
2. [Tod Angus] or [Robert Snauffer], acting together with [Jean
Glasgow], if acting for and on behalf of the Branch, are duly
authorized by Kredietbank to execute and deliver the Liquidity
Documents for and on behalf of the Branch. Assuming each of the
Liquidity Documents has been duly executed and delivered for and on
behalf of the Branch by such persons, no further authorization by or
any corporate action of Kredietbank is required in connection with
the execution, delivery and performance thereof.
3. The governing-law clause, subjecting the Liquidity Documents
to New York law, is valid under Belgian law.
(i) Under Belgian law, New York law will be applied to an
agreement, such as the Liquidity Documents, which under Belgian
law has been validly subjected to New York laws.
(ii) (a) None of the terms of the Liquidity Documents is
irreconcilable with important principles of Belgian law, and (b)
there are no mandatory provisions of Belgian law which must be
applied to the transactions covered by the Liquidity Documents.
(iii) Each of the Liquidity Documents constitutes the legal,
valid and binding obligation of Kredietbank, enforceable against
Kredietbank in accordance with its terms, the rules of civil
procedures of Belgium and the applicable provisions of the
chosen law of New York.
4. No authorization, consent, approval or other action by, and
no notice to or filing with, any governmental, administrative or other
authority or court of Belgium is required for the execution or
delivery of the Liquidity Documents by Kredietbank through the Branch
or for the performance by Kredietbank or by the Branch of the
Liquidity Documents.
5. The execution, delivery and performance of the Liquidity
Documents by Kredietbank or the Branch will not result in any
violation by Kredietbank or by the Branch of any law of Belgium.
6. The contractual obligations incurred by virtue of the
execution and delivery of the Liquidity Documents for and on behalf
of the Branch are the obligations of Kredietbank, and Kredietbank has
no defenses against the performance of such obligations which are
based on the fact that Kredietbank had acted through the Branch in
executing and delivering the Liquidity Documents.
7. If a final and conclusive judgment of the Supreme Court of
the State of New York, New York County, or of the Untied States
District Court for the Southern District of New York for a definite
sum for the recovery of amounts due and unpaid under the Liquidity
Documents were to be rendered against Kredietbank, a reexamination or
relitigation on the merits of the subject matter thereof in
accordance with Article 570 of the Belgian Judicial Code would be
necessary in order to obtain recognition and/or enforcement of such
judgment in Belgium.
8. The obligations of Kredietbank under the Liquidity Documents
rank at least equal in priority of payment and in all other respects
with its obligations to pay any other unsecured and unsubordinated
obligations of Kredietbank for borrowed money, including deposit
liabilities, that are not expressly preferred by law.
The foregoing opinions are subject to the following
qualifications:
(i) The opinion in paragraph (3) with respect to
enforceability is subject to the effect of any bankruptcy,
insolvency, reorganization, moratorium, liquidation or similar
laws affecting creditors' rights generally, applicable to
Kredietbank and to any law or general principle of law from
time to time in effect in Belgium that could be considered by
the Belgian Courts as a provision of public policy.
(ii) In giving the opinions in paragraphs (3)(iii), (6) and
(8), I have assumed, with your consent, that each of the
Liquidity Documents is legal, valid and binding under New York
law, all as set forth more fully in the opinion dated of even
date herewith of Milbank, Tweed, Hadley & McCloy issued in
connection with the Liquidity Documents.
(iii) No opinion is expressed with respect to the law of any
jurisdiction other than the law of Belgium.
This opinion is being furnished to you solely for your benefit
in connection with the transactions described above and may not be used,
circulated, quoted or otherwise referred to for any other purpose without my
express written consent.
Very truly yours,
SCHEDULE A
Lessee
Federal Express Corporation
2007 Corporate Avenue
Memphis, Tennessee 38132
Indenture Trustee, Pass Through Trustee & Subordination Agent
First Security Bank, National Association
79 South Main Street
Salt Lake City, Utah 84111
Underwriters
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
First Chicago Capital Markets, Inc.
Corporate Securities
One First National Plaza
Chicago, Illinois 60670
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
J.P. Morgan & Co.
60 Wall Street
New York, New York 10260
EXHIBIT A(6)(b)
[Letterhead of Milbank, Tweed, Hadley & McCloy]
[Certificate Closing Date]
To Each of the Parties named on Schedule A Hereto
Re: Federal Express Corporation 1997-1
Enhanced Pass Through Certificates
Ladies and Gentlemen:
We have acted as special New York counsel to Kredietbank N.V.,
New York Branch (herein called the "Liquidity Provider") in connection with the
transactions contemplated by (i) the Irrevocable Revolving Credit Agreement
Class A Certificates, dated as of May 1, 1997 (the "Class A Liquidity
Agreement"), between the Liquidity Provider and First Security Bank, National
Association, as Subordination Agent under the Intercreditor Agreement, as
defined below, as agent and trustee for the Federal Express Corporation
1997-1-A Pass Through Trust, (ii) the Irrevocable Revolving Credit Agreement
Class B Certificates, dated as of May 1, 1997 (the "Class B Liquidity
Agreement" and, together with the Class A Liquidity Agreement, the "Liquidity
Agreements"), between the Liquidity Provider and First Security Bank, National
Association, as Subordination Agent under the Intercreditor Agreement, as
defined below, as agent and trustee for the Federal Express Corporation
1997-1-B Pass Through Trust, and (iii) the Intercreditor Agreement, dated as
of May 1, 1997 (the "Intercreditor Agreement" and, together with the Liquidity
Agreements, the "Liquidity Documents"), among the Liquidity Provider and First
Security Bank, National Association, as Pass Through Trustee and as
Subordination Agent. Capitalized terms used herein but not otherwise defined
herein shall have the meanings provided in the Liquidity Documents.
In rendering the opinion expressed below, we have examined the
Liquidity Documents, the opinion dated the date hereof of Wilfred Kupers, Esq.,
manager of the Legal Department of Kredietbank N.V., and such other documents
as we have deemed necessary.
In our examination, we have assumed the authenticity of all
documents submitted to us as originals and the conformity with authentic
original documents of all documents submitted to us as copies. When relevant
facts were not independently established, we have relied upon representations
made in or pursuant to the Liquidity Documents.
In rendering the opinion expressed below, we have assumed, with
respect to each Liquidity Document, that:
(i) it has been duly authorized by, has been duly executed and
delivered by, and (except to the extent set forth in the opinion
below as to the Liquidity Provider) constitutes legal, valid,
binding and enforceable obligations of all of the parties
thereto;
(ii) all signatories thereto have been duly authorized; and
(iii) all of the parties thereto are duly organized and validly
existing and have the power and authority (corporate,
partnership, trust or other) to execute, deliver and perform
thereunder.
Based upon and subject to the foregoing and subject also to the
comments and qualifications set forth below, and having considered such
questions of law as we have deemed necessary as a basis for the opinion
expressed below, we are of the opinion that each Liquidity Document
constitutes the legal, valid and binding obligation of the Liquidity Provider,
enforceable against the Liquidity Provider in accordance with its terms, except
as may be limited by bankruptcy, insolvency, reorganization, moratorium,
fraudulent conveyance or transfer or other similar laws relating to or
affecting the rights of creditors generally and except as the enforceability
of such Liquidity Document is subject to the application of general principles
of equity (regardless of whether considered in a proceeding in equity or at
law), including, without limitation, (a) the possible unavailability of
specific performance, injunctive relief or any other equitable remedy and (b)
concepts of materiality, reasonableness, good faith and fair dealing.
The foregoing opinion is subject to the following comments and
qualifications:
(A) The enforceability of provisions in the Liquidity
Documents to the effect that terms may not be waived or modified
except in writing may be limited under certain circumstances.
(B) We express no opinion as to (i) the effect of the laws of
any jurisdiction in which the Liquidity Provider is located (other
than New York) that limit the interest, fees or other charges the
Liquidity Provider may impose for the loan or use of money or other
credit, (ii) Section 7.11(a)(i) of each Liquidity Agreement and
Section 10.11(a)(i) of the Intercreditor Agreement, insofar as such
Sections relate to the subject matter jurisdiction of a Federal court
sitting in New York, New York to adjudicate any controversy related
to the Liquidity Documents, (iii) the waiver of inconvenient forum
set forth in Section 7.11(a)(ii) of each Liquidity Agreement and
Section 10.11(a)(ii) of the Intercreditor Agreement with respect to
proceedings in a Federal court sitting in New York, New York and a
State court of the State of New York and (iv) the waiver of immunity
set forth in Section 10.11(c) of the Intercreditor Agreement with
respect to proceedings in a Federal court sitting in New York, New
York and a State court of the State of New York.
The foregoing opinion is limited to matters involving the
Federal laws of the United States of America and the law of the State of New
York, and we do not express any opinion as to the laws of any other
jurisdiction. In particular, we do not express any opinion as to the laws of
Belgium and, to the extent such laws may be relevant to the opinion expressed
herein, we have, with your permission, relied upon the aforementioned opinion
of Wilfred Kupers, Esq., manager of the Legal Department of Kredietbank N.V.,
without independently considering the matters covered thereby, and our opinion
is subject to all limitations, exceptions and qualifications contained therein
as if set forth herein in full.
At the request of the Liquidity Provider, this opinion letter is
provided to you by us in our capacity as special New York counsel to the
Liquidity Provider, and this opinion letter may not be relied upon by any
Person for any purpose other than in connection with the transactions
contemplated by the Liquidity Documents without, in each instance, our prior
written consent.
Very truly yours,
SCHEDULE A
Lessee
Federal Express Corporation
2007 Corporate Avenue
Memphis, Tennessee 38132
Indenture Trustee, Pass Through Trustee & Subordination Agent
First Security Bank, National Association
79 South Main Street
Salt Lake City, Utah 84111
Underwriters
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
First Chicago Capital Markets, Inc.
Corporate Securities
One First National Plaza
Chicago, Illinois 60670
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
J.P. Morgan & Co.
60 Wall Street
New York, New York 10260
Liquidity Provider
Kredietbank N.V., New York Branch
125 West 55th Street
New York, New York 10019
EXHIBIT A(7)
[Letter of General Electric Company]
[Delivery Date]
To Each of the Parties named on Schedule A Hereto
Re: Federal Express Corporation Trust No. N581FE
Reference is made to (i) that certain Participation Agreement (Federal
Express Corporation Trust No. N581FE), dated as of May 1, 1997 (the
"Participation Agreement") by and among Federal Express Corporation, as Lessee
("Fed Ex"), AmSouth Leasing, Ltd. and BTM Funding Corporation, as Owner
Participants, Wilmington Trust Company ("WTC") (not in its individual
capacity, except as otherwise expressly set forth therein, but solely as Owner
Trustee), First Security Bank, National Association ("FSB") (not in its
individual capacity, except as otherwise expressly set forth therein, but
solely as Indenture Trustee, Pass Through Trustee and Subordination Agent);
(ii) that certain Lease Agreement (Federal Express Corporation Trust No.
N581FE), dated as of May 1, 1997 (the "Lease") between WTC (not in its
individual capacity, but solely as Owner Trustee), as Lessor and Fed Ex, as
Lessee; (iii) that certain Trust Indenture and Security Agreement (Federal
Express Corporation Trust No. N581FE), dated as of May 1, 1997 (the "Trust
Indenture") between WTC (not in its individual capacity), as Owner Trustee and
FSB (not in its individual capacity), as Indenture Trustee; and (iv) that
certain Trust Agreement (Federal Express Corporation Trust No. N581FE), dated
as of May 1, 1997 (the "Trust Agreement") between WTC (not in its individual
capacity), as Owner Trustee and AmSouth Leasing, Ltd. and BTM Funding
Corporation, as Trustors.
I am an attorney employed by General Electric Company, a New York
corporation (the "Engine Manufacturer") and as such have acted as counsel for
the Engine Manufacturer in connection with the execution and delivery by the
Engine Manufacturer of the Consent (the "Consent"), and the Engine Warranty
Assignment (Federal Express Corporation Trust No. N581FE) (the "Engine
Warranty Assignment"), each attached to the Participation Agreement as Exhibit
F and dated as of May 1, 1997. The Consent and the Engine Warranty Assignment
covers three GE CF6-80C2-D1F series engines bearing Engine Manufacturer's
serial numbers ___-___ and ___-___, respectively. In this connection, I have,
or an attorney under my supervision has, reviewed such documents as I have
deemed necessary for the purpose of this opinion, including, but without
limiting the generality of the foregoing, the General Terms Agreement No.
6-9034, dated as of July 3, 1991 between the Engine Manufacturer and Fed Ex
(the "General Terms Agreement"), the Engine Product Support Plan forming a
part thereof (the "Engine Product Support Plan"), the Participation Agreement,
the Purchase Agreement Assignment, the Lease, the Trust Indenture and the
Trust Agreement.
In making such examinations, I have relied upon the accuracy of
original, certified, conformed, photocopied or telecopied copies of such
records, agreements, certificates and other documents as I have deemed
necessary or appropriate to enable me to render the opinions expressed herein.
In all such examinations, I have assumed the genuineness of signatures on
original documents and the conformity to such original documents of all copies
submitted to me as certified, conformed, photocopied or telecopied copies, and
as to certificates and telegraphic and telephonic confirmations given by public
officials, I have assumed the same to have been properly given and to be
accurate. As to various questions of fact material to such opinions, I have
relied, when such relevant facts were not independently established by me,
solely upon the accuracy of the statements, representations and warranties
made in the Participation Agreement, the Purchase Agreement Assignment, the
Lease, the Trust Indenture and the Trust Agreement.
With your consent, and for the purposes of this opinion, I have
assumed (other than with respect to the Engine Manufacturer), the accuracy of
the following matters, but I have not made any independent investigation or
inquiry with respect thereto and I render no opinion on such matters:
(a) each of the Participation Agreement, the Purchase
Agreement Assignment, the Lease, the Trust Indenture, and the Trust
Agreement have been duly and validly authorized, executed and
delivered by all parties thereto and constitutes the legal, valid and
binding obligations of each of such parties in accordance with the
respective terms thereof; and
(b) the respective parties to the Participation Agreement, the
Purchase Agreement Assignment, the Lease, the Trust Indenture, and the
Trust Agreement have obtained, and there are in full force and
effect, any and all federal, state, local or foreign governmental
agencies and authorities in connection with the transactions
contemplated thereby, to the extent necessary for the legality,
validity and binding effect or enforceability of the Consent and the
Engine Warranty Assignment.
Based upon the foregoing, and subject to the specific assumptions,
qualifications and reliances herein set forth, and on the basis of my
consideration of such facts and law as I have deemed necessary for purposes of
this letter, it is my opinion that:
(1) The Engine Manufacturer has the full corporate power,
authority and the legal right to enter into and perform its
obligations under the General Terms Agreement, the Consent and the
Engine Warranty Assignment. The execution, delivery and performance
by the Engine Manufacturer of each of the General Terms Agreement, the
Consent and the Engine Warranty Assignment was duly authorized by all
necessary corporate action on the part of the Engine Manufacturer.
(2) Each of the General Terms Agreement, the Consent and
Engine Warranty Assignment has been duly authorized, executed and
delivered by and constitutes a legal, valid and binding obligation of
the Engine Manufacturer, enforceable against the Engine Manufacturer
in accordance with the respective terms thereof, except as the
enforceability thereof may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting the
rights of creditors generally and by general equity principles.
(3) The Engine Product Support Plan insofar as it relates to
the Engine Warranties (as such term is defined in the Engine Warranty
Assignment), constitutes a legal, valid and binding obligation of the
Engine Manufacturer, enforceable against the Engine Manufacturer in
accordance with the terms thereof, except as the enforceability
thereof may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the rights of
creditors generally and by general equity principles.
The foregoing opinions are limited to the laws of the State of
New York and the federal laws of the United States of America, but no opinion
is expressed as to matters governed by the Transportation Code, or by any other
law, statute, rule or regulation of the United States relating to the
acquisition, ownership, registration, use, operation, maintenance, repair,
replacement or sale of aircraft. Further, no opinion is expressed as to title
to any engines or other property.
This opinion is furnished by me at your request for your sole
benefit and no other person or entity shall be entitled to rely on this opinion
without our express written consent. My opinion is limited to the matters
stated herein and no opinion is implied or may be inferred beyond the matters
expressly stated herein.
Very truly yours,
David L. Lloyd, Jr.
SCHEDULE A
Lessee
Federal Express Corporation
2007 Corporate Avenue
Memphis, Tennessee 38132
Owner Trustee
Wilmington Trust Company
1100 North Market Street
Rodney Square North
Wilmington, Delaware 19890-0001
Indenture Trustee, Pass Through Trustee & Subordination Agent
First Security Bank, National Association
79 South Main Street
Salt Lake City, Utah 84111
Owner Participants
AmSouth Leasing, Ltd.
c/o AmSouth Leasing Corporation
1900 Fifth Avenue North, 8th Floor
Birmingham, Alabama 35203
BTM Funding Corporation
c/o BTM Capital Corporation
125 Summer Street
Boston, Massachusetts 02110
Underwriters
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
First Chicago Capital Markets, Inc.
Corporate Securities
One First National Plaza
Chicago, Illinois 60670
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
J.P. Morgan & Co.
60 Wall Street
New York, New York 10260
Liquidity Provider
Kredietbank N.V., New York Branch
125 West 55th Street
New York, New York 10019
EXHIBIT A(9)
[Letterhead of Daugherty, Fowler & Peregrin]
[Delivery Date]
To the Parties Named on Schedule A attached hereto
Re: Federal Express Corporation Trust No. N581FE
Ladies and Gentlemen:
This opinion is furnished to you pursuant to Section
4.02(d)(iii) of the Participation Agreement (Federal Express Corporation Trust
No. N581FE), dated as of May 1, 1997 (the "Participation Agreement") among
Federal Express Corporation, as Lessee (the "Lessee"), AmSouth Leasing, Ltd.
and BTM Funding Corporation, as Owner Participants (the "Owner Participants"),
Wilmington Trust Company, not in its individual capacity, except as otherwise
stated, but solely as Owner Trustee ("Owner Trustee"), First Security Bank,
National Association, not in its individual capacity, except as otherwise
stated, but solely as Indenture Trustee ("Indenture Trustee"), Pass Through
Trustee and Subordination Agent, with respect to that portion of Subtitle VII
of Title 49 of the United States Code relative to the recordation of
instruments and the registration of aircraft thereunder.
The capitalized terms herein shall, unless otherwise defined,
have the same meanings given them in the Participation Agreement or in Annex I
attached hereto.
We have examined and filed on this date with the Federal
Aviation Administration (the "FAA") the following described instruments at the
respective times listed below:
(a) AC Form 8050-2 Aircraft Bill of Sale dated _____________
(the "FAA Bill of Sale") from the Lessee, as seller,
conveying title to the Airframe to the Owner Trustee,
which FAA Bill of Sale was filed at ____ _.m., C._.T.;
(b) AC Form 8050-1 Aircraft Registration Application dated
_____________ (the "Aircraft Registration Application") by
the Owner Trustee, as applicant, covering the Airframe,
which Aircraft Registration Application was filed at ____
_.m., C._.T.;
(c) Affidavit of the Owner Trustee dated _____________ (the
"Owner Trustee Affidavit") pursuant to Section
47.7(c)(2)(ii) of Part 47 of the Federal Aviation
Regulations , which Owner Trustee Affidavit attached was
filed at ____ _.m., C._.T.;
(d) executed counterpart of Trust Agreement (Federal Express
Corporation Trust No. N581FE) dated as of May 1, 1997
(the "Trust Agreement") among the Owner Participants and
the Owner Trustee, which Trust Agreement was filed at
____ _.m., C._.T.;
(e) executed counterpart of Trust Indenture and Security
Agreement (Federal Express Corporation Trust No. N581FE)
dated as of May 1, 1997 (the "Trust Indenture") between
the Owner Trustee and the Indenture Trustee, with
executed counterpart of Indenture and Security Agreement
Supplement No. 1 (Federal Express Corporation Trust No.
N581FE) dated _____________ (the "Trust Indenture
Supplement") by the Owner Trustee, covering the Aircraft,
attached thereto, which Trust Indenture with the Trust
Indenture Supplement attached was filed at ____ _.m.,
C._.T.; and,
(f) executed counterpart of Lease Agreement (Federal Express
Corporation Trust No. N581FE) dated as of May 1, 1997
(the "Lease") between the Owner Trustee, as lessor, and
the Lessee, with executed counterparts of the following
attached thereto: (i) Lease Supplement No. 1 (Federal
Express Corporation Trust No. N581FE) dated _____________
(the "Lease Supplement") between the Owner Trustee, as
lessor, and the Lessee, covering the Aircraft; (ii) the
Trust Indenture; and (iii) the Trust Indenture
Supplement, which Lease with the foregoing attachments
(collectively, the "Lease Attachments") attached was
filed at ____ _.m., C._.T.
The Confidential Omissions were intentionally omitted from the
FAA filing counterparts of the Lease and the Trust Indenture as containing
confidential financial information.
Based upon our examination of the above described instruments
and of such records of the FAA as we deemed necessary to render this opinion,
it is our opinion that:
1. the FAA Bill of Sale, the Trust Indenture with the Trust
Indenture Supplement attached and the Lease with the
Lease Attachments attached are in due form for recordation
by and have been duly filed for recordation with the FAA
pursuant to and in accordance with the provisions of 49
U.S.C. Section 44107;
2. the Aircraft Registration Application, the Owner Trustee
Affidavit and the Trust Agreement are in due form for
filing and have been duly filed with the FAA pursuant to
and in accordance with the provisions of 49 U.S.C. Section
44103(a) and Section 47.7(c) of the Federal Aviation
Regulations;
3. the Airframe is eligible for registration under 49 U.S.C.
Section 44102 in the name of the Owner Trustee and the
filing with the FAA of the FAA Bill of Sale, the Aircraft
Registration Application, the Owner Trustee Affidavit and
the Trust Agreement will cause the FAA to register the
Airframe, in due course, in the name of the Owner Trustee
and to issue to the Owner Trustee an AC Form 8050-3
Certificate of Aircraft Registration for the Airframe,
and the Airframe will be duly registered pursuant to and
in accordance with the provisions of 49 U.S.C. Section
44103(a);
4. the Owner Trustee has valid legal title to the Airframe
and the Aircraft is free and clear of all Liens, except
(i) the security interest created by the Trust Indenture,
as supplemented by the Trust Indenture Supplement, and
(ii) the rights of the parties under the Lease, as
supplemented by the Lease Supplement;
5. the rights of the Owner Trustee and the Lessee under the
Lease, as supplemented by the Lease Supplement, with
respect to the Aircraft, are perfected;
6. the Trust Indenture, as supplemented by the Trust
Indenture Supplement, constitutes a duly perfected first
priority security interest in the Aircraft and a duly
perfected first assignment of all the right, title and
interest of the Owner Trustee in, to and under the Lease
and the Lease Supplement (insofar as such assignment
affects an interest covered by the recording system
established by the FAA pursuant to 49 U.S.C. Section
44107), and no other registration of the Airframe or
filings other than filings with the FAA (which have been
duly effected) are necessary in order to perfect in any
applicable jurisdiction in the United States (A) the
Owner Trustee's title to the Airframe or (B) such
security interest and assignment (insofar as such
assignment affects an interest covered by the recording
system established by the FAA pursuant to 49 U.S.C.
Section 44107), it being understood that no opinion is
herein expressed as to the validity, priority or
enforceability of such security interest and assignment
under local law or as to the recognition of the
perfection of such security interest and assignment as
against third parties in any legal proceeding outside the
United States;
7. no authorization, approval, consent, license or order of,
or registration with, or the giving of notice to, the FAA
is required for the valid authorization, delivery and
performance of the Lease, as supplemented by the Lease
Supplement, the Trust Indenture, as supplemented by the
Trust Indenture Supplement, or the Trust Agreement except
for such filings as are referred to above; and,
8. neither the execution and delivery by the Owner
Participants of the Participation Agreement or the Trust
Agreement, nor other consummation of the transactions
contemplated thereby by the Owner Participants, requires
the consent or approval of, or the giving of notice to,
or the registration of, or the taking of any other action
in respect of the FAA, except (x) the registration of the
Airframe, including the submission of the Aircraft
Registration Application, the Owner Trustee Affidavit,
the Owner Participants Affidavit and the Trust Agreement
to the FAA and (y) the filings for recordation specified
elsewhere in this opinion.
No opinion is expressed as to the Airframe during any period or
periods of time during which it has not been subject to United States
registration.
No opinion is expressed as to laws other than Federal laws of
the United States. In rendering this opinion, we were subject to the accuracy
of the FAA, its employees and agents, in the filing, indexing and recording of
instruments filed with the FAA and in the search for encumbrance
cross-reference index cards for the Engines. Further, in rendering this
opinion we are assuming the validity and enforceability of the above described
instruments under local law. Since our examination was limited to records
maintained by the FAA, our opinion does not cover liens which are perfected
without the filing of notice thereof with the FAA, such as federal tax liens,
liens arising under Section 1368(a) of Title 29 of the United States Code,
possessory artisan's liens, or matters of which the parties had actual notice.
In rendering this opinion we are assuming that there are no documents with
respect to the Aircraft which have been filed for recording under the
recording system of the FAA but have not yet been listed in the available
records of such system as having been so filed.
In rendering this opinion we have relied upon the opinion of the
Assistant Chief Counsel of the Aeronautical Center dated _____________, a copy
of which is attached hereto.
Very truly yours,
Robert M. Peregrin
For the Firm
Annex I
Certain Definitions
Airframe, Engines and Aircraft
One (1) McDonnell Douglas MD-11F aircraft bearing
manufacturer's serial number 48419 and U.S. Registration No. N581FE (the
"Airframe") and three (3) General Electric CF6-80C2-D1F aircraft engines
bearing manufacturer's serial numbers ___-___, ___-___ and ___-___ (the
"Engines") (the Airframe and the Engines are referred to collectively as the
"Aircraft").
Confidential Omissions
The Lease was filed with the FAA, with (i) the Basic Rent
(Schedule II), (ii) the Stipulated Loss Values (Schedule III), (iii) the
Termination Values (Schedule IV) and (iv) the Purchase Option Schedule
(Schedule V) omitted from the FAA filing counterpart thereof as containing
confidential financial information; and (v) the purchase price under Section
4.02(a)(F) set forth in Ancillary Agreement II, which was not attached to the
FAA filing counterpart of the Lease or otherwise filed with the FAA for
recordation.
SCHEDULE A
Lessee
Federal Express Corporation
2007 Corporate Avenue
Memphis, Tennessee 38132
Owner Trustee
Wilmington Trust Company
1100 North Market Street
Rodney Square North
Wilmington, Delaware 19890-0001
Indenture Trustee, Pass Through Trustee & Subordination Agent
First Security Bank, National Association
79 South Main Street
Salt Lake City, Utah 84111
Owner Participants
AmSouth Leasing, Ltd.
c/o AmSouth Leasing Corporation
1900 Fifth Avenue North, 8th Floor
Birmingham, Alabama 35203
BTM Funding Corporation
c/o BTM Capital Corporation
125 Summer Street
Boston, Massachusetts 02110
Underwriters
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
First Chicago Capital Markets, Inc.
Corporate Securities
One First National Plaza
Chicago, Illinois 60670
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
J.P. Morgan & Co.
60 Wall Street
New York, New York 10260
Liquidity Provider
Kredietbank N.V., New York Branch
125 West 55th Street
New York, New York 10019
EXHIBIT B
[FORM OF LEASE AGREEMENT]
[See Exhibit 4.e]
EXHIBIT C
[FORM OF INDENTURE]
[See Exhibit 4.b.1]
EXHIBIT D
[FORM OF TRUST AGREEMENT]
[See Exhibit 4.d]
EXHIBIT E
[FORM OF OWNER PARTICIPANT GUARANTY]
[See Exhibit 4.g]
EXHIBIT F
[FORM OF ENGINE WARRANTY ASSIGNMENT AND ENGINE CONSENT]
[See Exhibit B to Lease Agreement under Exhibit 4.e]
PARTICIPATION AGREEMENT
(FEDERAL EXPRESS CORPORATION TRUST NO. N583FE)
Dated as of May 1, 1997
among
FEDERAL EXPRESS CORPORATION,
Lessee and Initial Owner Participant
STATE STREET BANK AND TRUST COMPANY OF CONNECTICUT,
NATIONAL ASSOCIATION,
Not in Its Individual Capacity
Except as Otherwise Expressly
Set Forth Herein, but Solely as Owner Trustee,
Owner Trustee
FIRST SECURITY BANK, NATIONAL ASSOCIATION,
Indenture Trustee
FIRST SECURITY BANK, NATIONAL ASSOCIATION,
Pass Through Trustee
and
FIRST SECURITY BANK, NATIONAL ASSOCIATION,
Subordination Agent
______________________________
LEVERAGED LEASE OF ONE MCDONNELL DOUGLAS MD-11F AIRCRAFT
SERIAL NO. 48421, REGISTRATION NO. N1752K
TABLE OF CONTENTS
Page
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Initial Recitals........................................................... 1
ARTICLE 1
DEFINITIONS............................................................. 3
ARTICLE 2
ISSUANCE OF PASS THROUGH CERTIFICATES;
ISSUANCE AND PURCHASE OF CERTIFICATES
Section 2.01. Transfer of Funds........................................ 3
Section 2.02. (a) Certificates......................................... 4
(b) Transfer of Beneficial Interest..................................... 5
Section 2.03. Amendments on Delivery Date or Transfer Date............. 5
ARTICLE 3
PARTICIPATION IN INVESTMENT ON DELIVERY DATE;
DELIVERY OF AIRCRAFT
Section 3.01. Lessee's Notice of Delivery Date......................... 6
Section 3.02. Commitments to Participate in Purchase Price............. 7
Section 3.03. Postponement of Delivery Date............................ 9
Section 3.04. Closing.................................................. 10
ARTICLE 4
CONDITIONS PRECEDENT
Section 4.01. Conditions Precedent (Certificate Closing Date).......... 10
Section 4.02. Conditions Precedent (Delivery Date)..................... 17
Section 4.03. Opinion of Special Aviation Counsel Upon Registration.... 26
ARTICLE 5
CONDITIONS PRECEDENT TO LESSEE'S OBLIGATIONS
Section 5.01. Conditions Precedent to Lessee's Obligations............. 26
ARTICLE 6
LESSEE'S REPRESENTATIONS, WARRANTIES AND COVENANTS
Section 6.01. Lessee's Representations and Warranties.................. 27
Section 6.02. Offering by Lessee....................................... 33
Section 6.03. Certain Covenants of Lessee.............................. 33
Section 6.04. Survival of Representations and Warranties............... 41
ARTICLE 7
OTHER PARTIES' REPRESENTATIONS, WARRANTIES AND COVENANTS
Section 7.01. Acquisitions and Offerings of Interests in Lessor's
Estate................................................... 41
Section 7.02. Citizenship.............................................. 42
Section 7.03. Concerning Assignment of Interests of Owner Participant.. 42
Section 7.04. Representations, Covenants and Warranties of SSB and the
Owner Trustee............................................ 42
Section 7.05. Representations, Warranties and Covenants of the Indenture
Trustee.................................................. 45
Section 7.06. Indenture Trustee's Notice of Default.................... 46
Section 7.07. Releases from Indenture.................................. 46
Section 7.08. Covenant of Quiet Enjoyment.............................. 47
Section 7.09. Pass Through Trustee's Representations and Warranties.... 47
Section 7.10. Survival of Representations, Warranties and Covenants.... 48
Section 7.11. Lessee's Assumption of the Certificates.................. 48
Section 7.12. Indebtedness of Owner Trustee............................ 50
Section 7.13. Reserved................................................. 50
Section 7.14. Subordination Agent's Representations, Warranties and
Covenants................................................ 50
ARTICLE 8
TAXES
Section 8.01. Lessee's Obligation to Pay Taxes......................... 52
Section 8.02. After-Tax Basis.......................................... 57
Section 8.03. Time of Payment.......................................... 58
Section 8.04. Contests................................................. 58
Section 8.05. Refunds.................................................. 61
Section 8.06. Lessee's Reports......................................... 61
Section 8.07. Survival of Obligations.................................. 62
Section 8.08. Payment of Taxes......................................... 62
Section 8.09. Reimbursements by Indemnitees Generally.................. 62
ARTICLE 9
GENERAL INDEMNITY
Section 9.01. Generally................................................ 63
Section 9.02. After-Tax Basis.......................................... 66
Section 9.03. Subrogation.............................................. 67
Section 9.04. Notice and Payment....................................... 67
Section 9.05. Refunds.................................................. 67
Section 9.06. Defense of Claims........................................ 68
Section 9.07. Survival of Obligations.................................. 68
Section 9.08. Effect of Other Indemnities.............................. 69
ARTICLE 10
TRANSACTION COSTS
Section 10.01. Transaction Costs and Other Costs....................... 69
ARTICLE 11
SUCCESSOR OWNER TRUSTEE
Section 11.01. Appointment of Successor Owner Trustee.................. 72
ARTICLE 12
LIABILITIES AND INTERESTS OF THE OWNER PARTICIPANT AND HOLDERS
Section 12.01. Liabilities of Owner Participant........................ 73
Section 12.02. Interest of Holders of Certificates..................... 73
ARTICLE 13
OTHER DOCUMENTS
Section 13.01. Consent of Lessee to Other Documents.................... 73
Section 13.02. Further Assurances...................................... 74
Section 13.03. Pass Through Trustee's and Subordination Agent's
Acknowledgement......................................... 74
ARTICLE 14
NOTICES
Section 14.01. Notices................................................. 74
ARTICLE 15
REFINANCING/REOPTIMIZATION
Section 15.01. Refinancing............................................. 75
ARTICLE 17
MISCELLANEOUS
Section 17.01. Reserved................................................ 79
Section 17.02. Collateral Account...................................... 79
Section 17.03. Counterparts............................................ 80
Section 17.04. No Oral Modifications................................... 80
Section 17.05. Captions................................................ 80
Section 17.06. Successors and Assigns.................................. 80
Section 17.07. Concerning the Owner Trustee, the Indenture Trustee
and the Pass Through Trustee............................ 81
Section 17.08. Severability............................................ 81
Section 17.09. Public Release of Information........................... 81
Section 17.10. Certain Limitations on Reorganization................... 81
Section 17.11. GOVERNING LAW........................................... 82
Section 17.12. Section 1110 Compliance................................. 82
Section 17.13. Reliance of Liquidity Providers......................... 82
ARTICLE 18
CONFIDENTIALITY
Section 18.01. Confidentiality......................................... 83
SCHEDULE I Certificate Information
SCHEDULE II Definitions
SCHEDULE III Permitted Country List
SCHEDULE IV Debt Portion
SCHEDULE V Mandatory Document Terms
SCHEDULE VI Mandatory Economic Terms
EXHIBIT A(1)(a)(i) Opinion of Lessee's Counsel
(Certificate Closing Date)
EXHIBIT A(1)(a)(ii) Opinion of Lessee's Counsel
(Delivery Date)
EXHIBIT A(1)(b)(i) Opinion of Lessee's Special Counsel
(Certificate Closing Date)
EXHIBIT A(1)(b)(ii) Opinion of Lessee's Special Counsel
(Delivery Date)
EXHIBIT A(2) Opinion of Indenture Trustee's Special Counsel
EXHIBIT A(3)(a)(i) Opinion of Owner Trustee's Special Counsel
(Certificate Closing Date)
EXHIBIT A(3)(a)(ii) Opinion of Owner Trustee's Special Counsel
(Delivery Date)
EXHIBIT A(4) Opinion of Pass Through Trustee's and Subordination
Agent's Special Counsel
EXHIBIT A(5)(a) Opinion of Liquidity Provider's Counsel
EXHIBIT A(5)(b) Opinion of Liquidity Provider's Special Counsel
EXHIBIT A(6) Opinion of Engine Manufacturer's Counsel
EXHIBIT A(7) Opinion of Special Aviation Counsel
EXHIBIT B Form of Lease Agreement
EXHIBIT C Form of Indenture
EXHIBIT D Form of Trust Agreement
EXHIBIT E Form of Engine Warranty Assignment and Engine Consent
PARTICIPATION AGREEMENT
(FEDERAL EXPRESS CORPORATION TRUST NO. N583FE)
PARTICIPATION AGREEMENT (FEDERAL EXPRESS CORPORATION TRUST NO.
N583FE) dated as of May 1, 1997 (this "Agreement") among FEDERAL EXPRESS
CORPORATION, a Delaware corporation (herein, together with its successors and
permitted assigns, the "Lessee" and the "Initial Owner Participant"), STATE
STREET BANK AND TRUST COMPANY OF CONNECTICUT, NATIONAL ASSOCIATION, a national
banking association, not in its individual capacity, except as otherwise
expressly stated herein, but solely as owner trustee under the Trust Agreement
referred to below (in such capacity as trustee, together with its successors
and permitted assigns, the "Owner Trustee"), FIRST SECURITY BANK, NATIONAL
ASSOCIATION, a national banking association, not in its individual capacity,
except as otherwise expressly stated herein, but solely as indenture trustee
under the Indenture referred to below (in such capacity as trustee, together
with its successors and permitted assigns, the "Indenture Trustee"), FIRST
SECURITY BANK, NATIONAL ASSOCIATION, a national banking association, not in
its individual capacity, except as otherwise expressly stated herein, but
solely as pass through trustee of three separate Pass Through Trusts (in such
capacity as trustee, together with its successors and permitted assigns, the
"Pass Through Trustee"), and FIRST SECURITY BANK, NATIONAL ASSOCIATION, a
national banking association, not in its individual capacity, except as
otherwise expressly stated herein, but solely as subordination agent (in such
capacity as trustee, together with its successors and permitted assigns, the
"Subordination Agent").
W I T N E S S E T H :
WHEREAS, capitalized terms used herein shall have the respective
meanings set forth or referred to in Article 1 hereof.
WHEREAS, the Initial Owner Participant has entered into the Trust
Agreement with the Owner Trustee in its individual capacity, substantially in
the form of Exhibit D hereto, pursuant to which Trust Agreement the Owner
Trustee agrees, among other things, to hold the Lessor's Estate for the
benefit of the Initial Owner Participant on the terms specified in the Trust
Agreement, subject to the Lien of the Indenture.
WHEREAS, on the Pass Through Closing Date, a closing will occur
with respect to the public offering of Pass Through Certificates issued by
each Pass Through Trust, an allocable amount of the proceeds of which
offering will be used by the Pass Through Trustee to purchase for each such
Pass Through Trust the Certificates of the Series and Maturity applicable
thereto.
WHEREAS, on the Certificate Closing Date, the Owner Trustee and the
Indenture Trustee will enter into the Indenture for the benefit of the Pass
Through Trustee, pursuant to which the Owner Trustee is issuing the
Certificates to the Subordination Agent on behalf of the Pass Through Trustee
as evidence of the loans made by the Pass Through Trustee to Subordination
Agent on behalf of the Owner Trustee, the proceeds of which loans will be
deposited by the Indenture Trustee on behalf of the Owner Trustee in the
Collateral Account.
WHEREAS, concurrently with the execution and delivery hereof, (i)
Kredietbank N.V., acting through its New York Branch will enter into two
revolving credit agreements (each, a "Liquidity Facility"), one for the
benefit of the holders of Pass Through Certificates of each of the Pass
Through Trusts for the Series A Certificates and the Series B Certificates,
with the Subordination Agent, as agent for the Pass Through Trustee on behalf
of each such Pass Through Trust; and (ii) the Pass Through Trustee, each
Liquidity Provider and the Subordination Agent will enter into the
Intercreditor Agreement.
WHEREAS, the Certificates will be held by the Subordination Agent
pursuant to the Intercreditor Agreement on behalf of the Pass Through Trustee
for each of the Pass Through Trusts.
WHEREAS, prior to the Delivery Date, the Certificates will be secured
by the Liquid Collateral.
WHEREAS, pursuant to the terms of the Trust Agreement, the Owner
Trustee will be authorized and directed by the Initial Owner Participant:
(a) on the Delivery Date, to purchase the Aircraft from the Lessee;
(b) on the Certificate Closing Date, to execute and deliver the
Lease substantially in the form of Exhibit B hereto, pursuant to which,
subject to the terms and conditions set forth in said Lease, the Owner
Trustee agrees to lease to the Lessee, and the Lessee agrees to lease from
the Owner Trustee, the Aircraft on the Delivery Date, such lease to be
effected by the execution and delivery on the Delivery Date of a Lease
Supplement, in the form of Exhibit A to the Lease, covering the Aircraft
and incorporating by reference all of the terms of the Lease;
(c) on the Certificate Closing Date, to execute and deliver the
Indenture, substantially in the form of Exhibit C hereto, for the
benefit of the Holders from time to time of the Certificates, pursuant
to which the Owner Trustee agrees, among other things, (A) to deposit,
mortgage and pledge with the Indenture Trustee, as part of the Trust
Indenture Estate, all of the Lessor's Estate but not Excepted Payments,
(B) on the Certificate Closing Date, to issue Certificates substantially
in the form set forth in Exhibit B to the Indenture, the proceeds of the
sale of which will be held by the Indenture Trustee on behalf of the
Owner Trustee in the Collateral Account until released in accordance
with the terms hereof and of the Indenture, and (C) on the Delivery
Date, to execute and deliver the Indenture and Security Agreement
Supplement, substantially in the form of Exhibit A to the Indenture,
covering the Aircraft and supplementing the Indenture; and
(d) on the Certificate Closing Date, to execute and deliver the
Engine Warranty Assignment, whereby the Lessee assigns to the Owner Trustee
certain of the Lessee's rights and interests under the GTA to the extent
that the same relate to the Engines (except to the extent reserved in the
Engine Warranty Assignment), which Engine Warranty Assignment is to include
as an annex an Engine Consent executed by the Engine Manufacturer, said
Engine Warranty Assignment and Engine Consent to be substantially in the
form of Exhibit E hereto.
WHEREAS, on the Delivery Date pursuant to and subject to the terms
and conditions of this Agreement, the Engine Warranty Assignment and the
Bills of Sale, the Owner Trustee will purchase, and receive title to, the
Aircraft from the Lessee and lease the Aircraft to the Lessee pursuant to
the Lease.
NOW, THEREFORE, in consideration of the mutual covenants contained in
this Agreement and other good and valuable consideration, receipt of which is
hereby acknowledged, the parties hereto agree as follows:
ARTICLE 1
DEFINITIONS
Unless the context otherwise requires, the terms defined in Schedule
II hereto are incorporated herein for all purposes of this Agreement and shall
be equally applicable to both the singular and the plural forms of the terms
so defined.
ARTICLE 2
ISSUANCE OF PASS THROUGH CERTIFICATES;
ISSUANCE AND PURCHASE OF CERTIFICATES
Section 2.01. Transfer of Funds.
(a) On or before the Pass Through Closing Date, the Pass Through
Trustee and the Lessee, in accordance with the Pass Through Agreement, shall
enter into the Series Supplements, and, subject to the terms and conditions
set forth therein, on the Pass Through Closing Date (i) the Lessee shall
direct the Underwriters to execute a wire transfer or intra-bank transfer to
the Pass Through Trustee in the amount of the total proceeds payable pursuant
to the Underwriting Agreement with respect to the Pass Through Certificates
and (ii) the Pass Through Trustee shall deliver the Pass Through Certificates
to the Underwriters upon receipt by the Pass Through Trustee of such proceeds.
(b) Subject to the satisfaction or waiver of the conditions set
forth herein, on the Certificate Closing Date, on behalf of each Pass Through
Trust, from an allocable amount of the proceeds of the sale of the related
Pass Through Certificates, the Pass Through Trustee shall purchase the
Certificates specified for such Pass Through Trust on Schedule I hereto. For
each Pass Through Trust, the Pass Through Trustee shall pay an amount equal to
the principal amount of Certificates of the Series and Maturity that relates
to such Pass Through Trust, which amounts in the aggregate shall equal the
aggregate principal amount of the Certificates as specified in Section 2.04 of
the Indenture. The aggregate amount payable by the Pass Through Trustee
pursuant to this Section 2.01(b) shall be payable by wire transfer or
intra-bank transfer to the Indenture Trustee on behalf of the Owner Trustee.
(c) On the Certificate Closing Date, the Indenture Trustee shall,
on behalf of the Owner Trustee, deposit, by wire transfer or intra-bank
transfer, the amounts received by it pursuant to Section 2.01(b) hereof in the
Collateral Account pursuant to the Indenture.
(d) On the Certificate Closing Date concurrently with the events
specified in Section 2.01(b) hereof, the parties hereto shall execute and
deliver, to the extent they are parties thereto, and consent to the execution
and delivery of (if they are not parties thereto), the Lease (other than the
Lease Supplement), the Indenture (other than the Indenture and Security
Agreement Supplement), and the other documents listed in Section 4.01(d)
hereof, and the Owner Trustee shall execute and deliver to the Indenture
Trustee for authentication, and the Indenture Trustee shall authenticate and
deliver to the Subordination Agent on behalf of the Pass Through Trustee for
each of the Pass Through Trusts, upon the request of the Owner Trustee, the
Certificates as provided in Section 2.02 hereof.
(e) The Closings shall take place at the offices of Davis Polk &
Wardwell, 450 Lexington Avenue, New York, New York 10017.
Section 2.02. (a) Certificates. Subject to the satisfaction or
waiver of the conditions set forth herein, on the Certificate Closing Date,
the Initial Owner Participant will instruct the Owner Trustee to execute and
deliver to the Indenture Trustee, and the Indenture Trustee shall authenticate
and deliver, upon the request of the Owner Trustee, to the Subordination Agent
on behalf of the Pass Through Trustee for each of the Pass Through Trusts, the
Certificates specified for such Pass Through Trust on Schedule I attached
hereto, which (i) shall be issued in the principal amount and in the Series
and Maturity set forth for such Certificate in Schedule I hereto, (ii) shall
bear interest at the interest rate set forth for such Certificate in Schedule
I hereto, (iii) shall be issued in such form and on such terms as are
specified in the Indenture, (iv) shall be dated and authenticated on the
Certificate Closing Date and shall bear interest from the Certificate Closing
Date and (v) shall be registered in the name of the Subordination Agent on
behalf of the Pass Through Trustee for such Pass Through Trust.
(b) Transfer of Beneficial Interest. If on a date prior to the
Delivery Date, the Lessee shall have identified one or more Owner Participants
ready, willing and able to acquire the Beneficial Interest of the Initial
Owner Participant in consideration for such Owner Participant's or Owner
Participants' agreement to participate in the Lessor's payment of the Purchase
Price for the Aircraft on the Delivery Date, the Initial Owner Participant
shall transfer its Beneficial Interest to such Owner Participant or Owner
Participants on such date (the "Transfer Date"). On the Transfer Date, the
document amendments contemplated by Section 2.03(a) hereof (subject to the
limitations set forth in such Section) shall be effected and such amended
documents delivered.
Section 2.03. Amendments on Delivery Date or Transfer Date. (a)
Amendment and Restatement of Certain Documents. Upon any transfer by the
Initial Owner Participant of its Beneficial Interest on the Delivery Date (as
contemplated by Section 3.02(a) hereof (or, if earlier, the Transfer Date),
the parties hereto shall enter into amendments and restatements of the Trust
Agreement, the Lease, the Indenture and this Agreement, which amendments and
restatements shall reflect such changes as shall have been requested by the
Owner Participant, agreed to by the Lessee and, if modified in any material
respect, as to which Rating Agency Confirmation shall have been obtained from
each Rating Agency by the Lessee (to be delivered by the Lessee to the Pass
Through Trustee on or before the Delivery Date or the Transfer Date, as the
case may be); provided, however, that in any event such amended and restated
documents shall not vary the Mandatory Economic Terms and shall contain the
Mandatory Document Terms.
The Lessee agrees to furnish to each Liquidity Provider and to
Milbank, Tweed, Hadley & McCloy (the initial Liquidity Provider's special New
York counsel) at its New York office, attention: Drew S. Fine, as soon as
practicable but in no event less than 7 Business Days prior to the estimated
Delivery Date (or, if earlier, the estimated Transfer Date), true and complete
copies of drafts of any such amended and restated Participation Agreement,
amended and restated Lease Agreement and amended and restated Indenture. The
Lessee further agrees to furnish to each Liquidity Provider and to the counsel
identified in the preceding sentence (i) each and every subsequent draft of
such documents and (ii) promptly following the execution thereof, true and
complete copies of such documents.
(b) Amendments to Certain Schedules. The percentages of Basic Rent,
Stipulated Loss Value and Termination Value set forth on Schedules II, III and
IV, respectively, of the Lease, the EBO Price and the schedule of principal
payments on the Certificates set forth in Section 6.06 of the Indenture and
Schedule I to each Certificate on the Certificate Closing Date have been
calculated based upon a hypothetical owner's economic return and certain
assumptions regarding the Delivery Date, Transaction Costs, tax law, Basic
Term and certain other items (the "Assumptions"). If the Initial Owner
Participant transfers its Beneficial Interest to one or more Owner
Participants on the Delivery Date (as contemplated by Section 3.02(a) hereof
(or, if earlier, the Transfer Date), then, no later than 20 days following the
Delivery Date (the "Reoptimization Date"), the Owner Trustee may elect to amend
such Schedules to reflect the actual Owner's or Owners' Economic Return and any
changes to the Assumptions. In connection with any such amendments, the Owner
Trustee may prepay on the Reoptimization Date part of the Series C
Certificates. On the Reoptimization Date the Owner Trustee shall deliver and
the Subordination Agent on behalf of the Pass Through Trustee of each Pass
Through Trust shall accept delivery of an amended Schedule I to each
Certificate containing such changed principal installments.
The Owner Trustee will give not less than 10 days' notice of the
Reoptimization Date. Any amendments to the Indenture and such Schedules shall
not vary the Mandatory Economic Terms and on the Reoptimization Date the
Lessee shall deliver a certificate to the Pass Through Trustee and the
Liquidity Providers signed by the Vice President and Treasurer or any other
authorized officer of the Lessee certifying to such effect. If the
Reoptimization Date occurs later than the Delivery Date, the Lessee shall
cause any required filing and recording of the affected documents with the
Aeronautics Authority to be effected on the Reoptimization Date.
ARTICLE 3
PARTICIPATION IN INVESTMENT ON DELIVERY DATE;
DELIVERY OF AIRCRAFT
Section 3.01. Lessee's Notice of Delivery Date. The Lessee agrees
to give the Owner Participant, the Indenture Trustee, the Owner Trustee and
the Pass Through Trustee at least three (3) Business Days' written or
facsimile notice prior to the Delivery Date (which notice shall be effective
only if received not later than 10:00 a.m. (New York City time) on the date
that is at least three (3) Business Days prior to the Delivery Date), which
Delivery Notice shall specify the amount of the Purchase Price, the amount of
the Owner Participant's Commitment, the Debt Portion, the Delivery Date for
the Aircraft, the serial number of the Airframe and each Engine, and the
Aeronautics Authority registration number for the Aircraft.
Section 3.02. Commitments to Participate in Purchase Price. (a)
Participation in Purchase Price. Subject to the terms and conditions of this
Agreement, on the Delivery Date, (i) subject to the proviso to this Section
3.02(a), the Indenture Trustee agrees to release the Debt Portion or such
lesser amount as may then be held in the Collateral Account together with the
Lessee Shortfall (as defined in clause (iii) below), if any, to the Owner
Trustee for application to the Purchase Price as provided below, (ii) unless
previously transferred on the Transfer Date, the Initial Owner Participant
agrees to transfer its Beneficial Interest to the Owner Participant in
consideration for the Owner Participant's participation in the Lessor's
payment of the Purchase Price through an investment in the Lessor's Estate in
an amount equal to the amount set forth in Ancillary Agreement I, (iii)
subject to the proviso to this Section 3.02(a), the Lessee agrees to pay to
the Indenture Trustee the excess, if any, of (I) the Debt Portion over (II)
such amount as may then be held in the Collateral Account (the "Lessee
Shortfall") as provided in Section 17.02(a) hereof, and (iv) the Lessee shall
sell the Aircraft to the Owner Trustee and the Owner Trustee shall immediately
thereafter lease the Aircraft to the Lessee pursuant to the Lease. In
consideration for the assignment to the Owner Trustee by the Lessee under the
Modification Agreement of any warranties thereunder, the transfer by the
Initial Owner Participant to the Owner Participant of its Beneficial Interest
and the transfer of title to the Aircraft from the Lessee to the Owner
Trustee, the following cash payments will be made by wire transfer of
immediately available funds on the Delivery Date: (A) by the Owner Trustee to
the Lessee, an amount equal to the Purchase Price, or such lesser amount
referred to in the proviso to this Section 3.02(a), and (B) by the Indenture
Trustee, on behalf of the Owner Trustee, to the Lessee the excess of any
amounts as may then be held in the Collateral Account over the Debt Portion;
provided, however, that if (1) the Delivery Date has been postponed, (2) the
investments contemplated by Section 2.14(b) of the Indenture have been made,
(3) such investments do not mature on the rescheduled Delivery Date and (4)
the Lessee elects not to break such investments, then the Indenture Trustee
shall not release amounts in the Collateral Account to the Owner Trustee and
the Lessee shall accept as payment of the Purchase Price by the Owner Trustee
an amount equal to the Owner Participant's Commitment and the Indenture
Trustee shall pay to the Lessee at the end of the applicable investment period
referred to in Section 2.14(b) of the Indenture of all amounts then held in the
Collateral Account.
(b) No Obligation to Increase Commitments; Delayed Delivery. (i) If
the Indenture Trustee shall default in its obligation to make the amount of
its Debt Portion available pursuant hereto, the Owner Participant shall have
no obligation to make any portion of such Debt Portion available or to
increase the amount of its Commitment, but the obligations of the Owner
Participant shall nevertheless remain subject to the terms and conditions of
this Agreement.
(ii) Subject to the provisions of Section 3.03 hereof, if the closing
of the transactions contemplated by the Operative Agreements shall not have
been consummated by 2:00 p.m. (New York City time), or such earlier time as
directed by the Lessee, on the Scheduled Delivery Date, the Owner Trustee
shall, if instructed in writing by the Lessee, at the risk and expense of the
Lessee, use its reasonable best efforts to cause the Owner Participant's
Commitment to be invested and reinvested to the extent practicable at the
direction received by it from the Lessee (with a copy to the Owner
Participant), at the risk of the Lessee, in Permitted Investments consisting
of either commercial paper or time deposits; provided, however, that in the
absence of instructions by 2:00 p.m. (New York City time) the Owner Trustee
shall use its reasonable best efforts to cause such amount or the proceeds
thereof to be invested and reinvested to the extent practicable in overnight
Eurodollar time deposits. Earnings on any such investments shall be applied
to the Lessee's payment obligations, if any, to such Owner Participant
pursuant to the next succeeding paragraph, and the balance, if any, of such
earnings remaining after such application shall be paid in accordance with the
Lessee's written instructions.
If for any reason (i) the Operative Agreements shall not be executed
and delivered by the respective parties thereto and/or the delayed Delivery
Date shall not occur (whether by reason of a failure to meet a condition
precedent thereto set forth in Article 4 hereof or otherwise) on or before the
third Business Day after the Scheduled Delivery Date (or earlier if requested
by the Owner Participant) or, if earlier, the Cut-Off Date, or (ii) the Lessee
has notified the Owner Trustee (with a copy to the Owner Participant) prior to
2:00 p.m. (New York City time) on any date after the Scheduled Delivery Date
that it does not intend to go forward to close the transactions contemplated
hereby for such Delivery Date, the Owner Participant may cancel any funding
arrangements made to fund its Commitment on the Scheduled Delivery Date but
the Owner Participant's Commitment hereunder with respect to the Aircraft shall
not be terminated thereby until the Cut-Off Date, whereupon the Owner
Participant's Commitment hereunder shall terminate. On such third Business
Day (or such earlier date) or the Cut-Off Date, as the case may be, or the
earliest practicable Business Day thereafter, the Owner Trustee shall return
the amounts held by it hereunder to the Owner Participant, provided that the
Owner Trustee shall have had a reasonable time to liquidate any Permitted
Investments it has been authorized to invest in pursuant to the preceding
paragraph and to obtain the proceeds therefrom in funds of the type originally
received, and the Lessee shall pay interest on such funds to the Owner
Participant at the Debt Rate, such interest to be payable for the period from
and including such Scheduled Delivery Date to but excluding the date such
funds are returned to the Owner Participant in accordance with the terms
hereof; provided that if any such funds are returned to the Owner Participant
after 2:00 p.m. (New York City time) on any such date, such funds shall be
deemed for purposes of this paragraph to have been returned on the next
succeeding Business Day.
The Lessee shall reimburse the Owner Trustee on demand for any loss
incurred by the Owner Trustee as a result of the investment of funds by the
Owner Trustee in accordance with the terms of this Section 3.02(b). Further,
the Lessee shall indemnify the Owner Trustee and hold it harmless from and
against any cost or expense the Owner Trustee may incur as a result of any
investment of funds or transfer of funds referred to herein in accordance with
the terms hereof. The Owner Trustee shall not be liable for failure to invest
such funds except as otherwise provided herein or for any losses incurred on
such investments except for any losses arising out of its own gross negligence
or willful misconduct.
Section 3.03. Postponement of Delivery Date. (a) If no Owner
Participant has committed to participate in the transactions contemplated to
occur on the Scheduled Delivery Date or if an Owner Participant shall for any
reason fail or refuse to make the full amount of its Commitment available on
the Scheduled Delivery Date in accordance with the terms of Section 3.02
hereof, the Owner Trustee will promptly give each party confirmed facsimile
notice thereof and the Lessee shall postpone the Delivery Date to a date not
later than the Cut-Off Date. If no Owner Participant has committed to
participate or an Owner Participant shall for any reason fail or refuse to
make the full amount of its Commitment available in accordance with the terms
of Section 3.02 hereof on such postponed Delivery Date, the Lessee shall
endeavor during such period to identify another equity investor to whom it can
assign its Beneficial Interest. If the Lessee identifies an equity investor,
the Lessee shall assign its interest in the Lessor's Estate as provided above.
In case of any such conveyance (but subject to the satisfaction of the
conditions precedent specified in an amendment hereto), the Indenture Trustee
shall release the Debt Portion or such lesser amount as may then be held in
the Collateral Account for application to the payments contemplated in the
last sentence of Section 3.02(a) hereof, subject to the proviso to Section
3.02(a) hereof.
(b) Release of Obligations. If the Delivery Date has not occurred
on or prior to the Cut-Off Date (including by reason of the Aircraft not being
completed and delivered, there being no Owner Participant committed to
participate in the transactions contemplated to occur on the Delivery Date or
by reason of an Owner Participant's failure to make the full amount of its
Commitment available in accordance with the terms of Section 3.02 hereof and
no transferee Owner Participant having been identified pursuant to Section
3.03(a) hereof), then, in such event, the Owner Trustee shall not purchase the
Aircraft from the Lessee, and the parties to the Operative Agreements shall
have no further obligations or liabilities under any of said Operative
Agreements with respect to the Aircraft, including the obligation of the Owner
Participant to participate in the payment of the Purchase Price, and such
documents shall terminate and have no further force or effect with respect to
the Aircraft; provided, however, that the Lessee shall provide, no later than
the Cut-Off Date, notice of prepayment to the Indenture Trustee and the
Certificates shall be prepaid on the 15th day following the Cut-Off Date as
provided in Section 6.02(a)(vi) of the Indenture and Section 17.02(c) hereof
and provided further, that (i) the Lessee's obligation to indemnify such
parties to the extent provided in such documents, shall not be diminished or
modified in any respect and (ii) the obligations of the Owner Trustee, the
Indenture Trustee and the Lessee to return funds and pay interest, costs,
expenses and other amounts thereon or in respect thereof as provided in
Section 3.02 hereof shall continue.
(c) Optional Postponement. Without limiting the provisions of
Section 3.02(b) hereof, the Scheduled Delivery Date may be postponed from time
to time (but in no event shall the Delivery Date be later than the Cut-Off
Date) for any reason, other than pursuant to Section 3.03(a) hereof, if the
Lessee gives the Owner Participant, the Indenture Trustee, the Owner Trustee
and the Pass Through Trustee confirmed facsimile notice (or telephone notice
followed by written confirmation) of such postponement and notice of the date
to which the Delivery Date has been postponed, such notice of postponement to
be received by each party no later than 11:00 a.m. (New York City time) on the
Business Day preceding the Scheduled Delivery Date.
Section 3.04. Closing. The closing with respect to the purchase and
lease of the Aircraft on the Delivery Date shall take place at the offices of
Davis Polk & Wardwell, 450 Lexington Avenue, New York, New York 10017.
ARTICLE 4
CONDITIONS PRECEDENT
Section 4.01. Conditions Precedent (Certificate Closing Date). The
obligations of the Owner Trustee, the Lessee, the Indenture Trustee, the
Subordination Agent and the Pass Through Trustee on behalf of each Pass
Through Trust to participate in the transactions contemplated hereby on the
Certificate Closing Date are subject to the fulfillment to the satisfaction of
such party (or waiver by such party), prior to or on the Certificate Closing
Date, of the following conditions precedent (it being understood that receipt
by the Lessee of any of the following documents shall not be a condition
precedent to the obligations of any party):
(a) Certificates. On the Certificate Closing Date, there shall have
been duly issued and delivered by the Owner Trustee to the Subordination
Agent on behalf of the Pass Through Trustee for each of the Pass Through
Trusts, against payment therefor, a Certificate, substantially in the form
set forth in Exhibit B to the Indenture, duly authenticated, dated the
Certificate Closing Date and registered in the name of the Subordination
Agent, in the principal amounts, Series, Maturity, bearing the interest
rate and the other economic terms specified in the Series Supplements and
otherwise as provided in Section 2.04 of the Indenture. The Pass Through
Certificates shall be registered under the Securities Act, any applicable
state securities laws shall have been complied with, and the Pass Through
Agreement shall have been qualified under the Trust Indenture Act.
(b) Legal Investment. On the Certificate Closing Date, no fact or
condition shall exist under applicable laws or regulations, or
interpretations of any such laws or regulations by applicable regulatory
authorities, which, in the opinion of the Pass Through Trustee, the
Subordination Agent or the Indenture Trustee or their special counsel,
would make it illegal for the Initial Owner Participant, the Lessee, the
Owner Trustee, the Pass Through Trustee, the Subordination Agent or the
Indenture Trustee, and no change in circumstances shall have occurred which
would otherwise make it illegal for such Initial Owner Participant, the
Lessee, the Owner Trustee, the Pass Through Trustee, the Subordination
Agent or the Indenture Trustee, to participate in the transactions to be
consummated on the Certificate Closing Date; and no action or proceeding
shall have been instituted nor shall governmental action before any court,
governmental authority or agency be threatened which in the opinion of
counsel for the Indenture Trustee, the Subordination Agent or the Pass
Through Trustee is not frivolous, nor shall any order have been issued or
proposed to be issued by any court, or governmental authority or agency, as
of the Certificate Closing Date, to set aside, restrain, enjoin or prevent
the consummation of any of the transactions contemplated by this Agreement
or by any of the other Operative Agreements.
(c) Underwriters. The Underwriters shall have transferred the funds
specified in Section 2.01(a) hereof and all conditions thereunder shall
have been satisfied or waived.
(d) Documents. This Agreement and the following documents shall have
been duly authorized, executed and delivered by the respective party or
parties thereto, shall each be satisfactory in form and substance to the
Lessee, the Owner Trustee, the Indenture Trustee and the Pass Through
Trustee (each acting directly or by authorization to its special counsel)
and shall each be in full force and effect; there shall not have occurred
any default thereunder, or any event which with the lapse of time or the
giving of notice or both would be a default thereunder, and copies executed
or certified as requested by the Lessee, the Owner Trustee, the Indenture
Trustee, the Subordination Agent or the Pass Through Trustee, as the case
may be, of such documents shall have been delivered to the Lessee, the
Indenture Trustee, the Pass Through Trustee, the Subordination Agent and the
Owner Trustee (provided that the sole chattel-paper original of each of the
Lease and each Ancillary Agreement amendatory of the Lease, shall be
delivered to the Indenture Trustee):
(i) the Lease;
(ii) the Indenture;
(iii) the Modification Agreement;
(iv) the GTA;
(v) the Trust Agreement;
(vi) the Intercreditor Agreement; and
(vii) the Liquidity Facility for each of the Pass Through Trusts for
the Series A Certificates and the Series B Certificates.
(e) Approvals. All approvals and consents of any trustees or
holders of any indebtedness or obligations of the Lessee, which in the
opinion of the Pass Through Trustee or the Indenture Trustee are required
in connection with any transaction contemplated by this Agreement, shall
have been duly obtained.
(f) Financing Statements. Uniform Commercial Code ("UCC") financing
statements covering all the security interests (and other interests)
intended to be created by or pursuant to the Granting Clause of the
Indenture shall have been executed and delivered by the Owner Trustee, as
debtor, and by the Indenture Trustee, as secured party, for and on behalf
of the Holders, and such financing statements shall have been duly filed or
duly submitted for filing in the State of Connecticut, and all other
actions shall have been taken which, in the opinion of the Pass Through
Trustee and the Underwriters, are necessary to perfect and protect such
security interests and other interests.
(g) Corporate Documents. Except when such Person is the delivering
party, the Owner Trustee, the Pass Through Trustee, the Lessee and the
Indenture Trustee (acting directly or by authorization to its counsel)
shall have received the following, in each case in form and substance
satisfactory to it:
(i) a copy of the certificate of incorporation and by-laws of the
Lessee, certified by the Secretary or an Assistant Secretary of the
Lessee as of the Certificate Closing Date, and a copy of the minutes
of the regular meeting of the board of directors of the Lessee,
certified as such as of the Certificate Closing Date by such
Secretary or Assistant Secretary, duly authorizing the lease by the
Lessee of the Aircraft under the Lease and the execution, delivery
and performance by the Lessee of this Agreement, the Lease, the Pass
Through Agreement, the Series Supplements, the other Operative
Agreements to which the Lessee is or is to be a party and each other
document to be executed and delivered by the Lessee in connection
with the transactions contemplated hereby;
(ii) a copy of the certificate of incorporation and by-laws and
other instruments of the Owner Trustee, certified by the Secretary or
an Assistant Secretary of the Owner Trustee as of the Certificate
Closing Date (or other like instruments satisfactory to the Lessee
and the Owner Participant) and evidence authorizing the execution,
delivery and performance by the Owner Trustee in its individual
capacity or as Owner Trustee, as the case may be, of this Agreement,
the Trust Agreement and each of the other Operative Agreements to
which it is or is to be a party, whether in its individual capacity
or as Owner Trustee, and each other document to be executed and
delivered by the Owner Trustee in connection with the transactions
contemplated hereby;
(iii) a copy of the articles of association and by-laws and other
instruments of the Indenture Trustee, certified by the Secretary or an
Assistant Secretary of the Indenture Trustee as of the Certificate
Closing Date (or other like instruments satisfactory to the Lessee
and the Owner Participant) and evidence authorizing the execution,
delivery and performance by the Indenture Trustee of each of this
Agreement, the Indenture and each of the other Operative Agreements
to which it is or is to be a party, and each other document to be
executed and delivered by the Indenture Trustee in connection with
the transactions contemplated hereby;
(iv) a copy of the certificate of incorporation and by-laws and
other instruments of the Pass Through Trustee, certified by the
Secretary or an Assistant Secretary of the Pass Through Trustee as of
the Certificate Closing Date (or other like instruments satisfactory
to the Lessee and the Owner Participant) and evidence authorizing the
execution, delivery and performance by the Pass Through Trustee of
this Agreement, the Pass Through Agreement, the Series Supplements
and each of the other Operative Agreements to which it is or is to be
a party, and each other document to be executed and delivered by the
Pass Through Trustee in connection with the transactions contemplated
hereby;
(v) a copy of the certificate of incorporation and by-laws and
other instruments of the Subordination Agent, certified by the
Secretary or an Assistant Secretary of the Subordination Agent as of
the Certificate Closing Date (or other like instruments satisfactory
to the Lessee and the Owner Participant) and evidence authorizing the
execution, delivery and performance by the Subordination Agent of
this Agreement, the Intercreditor Agreement and each of the other
Operative Agreements to which it is or is to be a party, and each
other document to be executed and delivered by the Subordination
Agent in connection with the transactions contemplated hereby; and
(vi) such other documents, evidences, materials, and information
with respect to the Lessee, the Owner Trustee, the Indenture Trustee
and the Pass Through Trustee as the Indenture Trustee or the Pass
Through Trustee may reasonably request in order to establish the
consummation of the transactions contemplated by this Agreement.
(h) Officer's Certificate of Lessee. On the Certificate Closing
Date, the following statements shall be true, and the Owner Trustee, the
Pass Through Trustee and the Indenture Trustee shall have received a
certificate signed by the Vice President and Treasurer or any other duly
authorized officer of the Lessee, dated the Certificate Closing Date,
stating that:
(i) the representations and warranties of the Lessee contained in
the Operative Agreements to which it is a party and in any
certificate delivered pursuant hereto or thereto are true and correct
on and as of the Certificate Closing Date as though made on and as of
such date (except to the extent that such representations and
warranties relate solely to an earlier date, in which case such
certificate shall state that such representations and warranties were
true and correct on and as of such earlier date);
(ii) except for the matters described (i) under "Legal
Proceedings" in the Lessee's Annual Report on Form 10-K for the
fiscal year ended May 31, 1996 (as updated by Note 7 to the financial
statements included in the Lessee's Quarterly Reports on Form 10-Q
for the fiscal quarters ended August 31, 1996, November 30, 1996 and
February 28, 1997) and (ii) in the Lessee's Current Reports on Form
8-K dated June 7, 1996, August 16, 1996 and March 4, 1997, as to
which such officer will make no certification concerning the
liability of the Lessee (if any), or the effect of any adverse
determination upon the consolidated financial condition, business or
operations of the Lessee, no material adverse change has occurred in
the financial condition, business or operations of the Lessee from
that shown in the audited financial statements of the Lessee as of
May 31, 1996 or the unaudited consolidated financial statements of
the Lessee as of February 28, 1997 and nothing has occurred which
will, in the judgment of such officer, materially adversely affect
the ability of the Lessee to carry on its business or to perform its
obligations under this Agreement and each other Operative Agreement
to which it is or is to be a party; and
(iii) no event has occurred and is continuing, or would result
from the purchase, sale, mortgage, or lease of the Aircraft, which
constitutes an Event of Loss (or event which with the passage of time
would become an Event of Loss) with respect to the Airframe or any
Engine, or a Default or an Event of Default under the Lease.
(i) Other Officer's Certificates. On the Certificate Closing Date,
the following statements shall be true, and the Lessee, the Pass Through
Trustee, the Owner Trustee, the Subordination Agent and the Indenture
Trustee shall have received a certificate from each of SSB and the Owner
Trustee (in the case of the Lessee, the Pass Through Trustee, the
Subordination Agent and the Indenture Trustee), FSB and the Indenture
Trustee (in the case of the Lessee, the Pass Through Trustee, the
Subordination Agent and the Owner Trustee), FSB and the Pass Through
Trustee (in the case of the Lessee, the Indenture Trustee, the
Subordination Agent and the Owner Trustee) and FSB and the Subordination
Agent (in the case of the Lessee, the Pass Through Trustee, the Indenture
Trustee and the Owner Trustee), signed by a duly authorized officer of SSB
and FSB, respectively, dated the Certificate Closing Date, stating with
respect to SSB and the Owner Trustee, with respect to FSB and the Indenture
Trustee, with respect to FSB and the Pass Through Trustee or with respect
to FSB and the Subordination Agent, as the case may be, that:
(i) the representations and warranties of SSB in its individual
capacity and as Owner Trustee, of FSB in its individual capacity and
as Indenture Trustee, of FSB in its individual capacity and as Pass
Through Trustee or of FSB in its individual capacity and as
Subordination Agent contained in this Agreement, the Lease, the Trust
Agreement and the Indenture and in any certificate delivered pursuant
hereto or thereto are true and correct on and as of the Certificate
Closing Date as though made on and as of such date (except to the
extent that such representations and warranties relate solely to an
earlier date, in which case such certificate shall state that such
representations and warranties were true and correct on and as of such
earlier date);
(ii) to the best of its knowledge, no event has occurred and is
continuing, which constitutes or which, but for the lapse of time or
the giving of notice, or both, would constitute, due to any action or
omission on the part of SSB in its individual capacity or as Owner
Trustee, of FSB in its individual capacity or as Indenture Trustee,
of FSB in its individual capacity or as Pass Through Trustee, an
Event of Default or an Indenture Event of Default or of FSB in its
individual capacity or as Subordination Agent, an Event of Default or
an Indenture Event of Default; and
(iii) there are no Lessor's Liens attributable to the Owner
Trustee or SSB and no Indenture Trustee's Liens.
(j) Legal Opinions. The Underwriters, the Lessee, the Owner
Trustee, the Pass Through Trustee and the Indenture Trustee (acting
directly or by authorization to its special counsel) shall have received
from the following counsel their respective legal opinions in each case
satisfactory to the Underwriters, the Lessee, the Owner Trustee, the Pass
Through Trustee or the Indenture Trustee, as the case may be, as to scope
and substance (and covering such other matters as the recipient may
reasonably request) and dated the Certificate Closing Date:
(i) George W. Hearn, Vice President - Law of the Lessee, in the
form of Exhibit A(1)(a)(i) hereto and addressed to the Underwriters,
the Owner Trustee, the Pass Through Trustee, each Liquidity Provider
and the Indenture Trustee;
(ii) Davis Polk & Wardwell, special counsel for the Lessee, in the
form of Exhibit A(1)(b)(i) hereto and addressed to the Underwriters,
the Indenture Trustee, the Owner Trustee, the Pass Through Trustee,
each Liquidity Provider and the Lessee;
(iii) Ray, Quinney & Nebeker, special counsel for the Indenture
Trustee, in the form of Exhibit A(2) hereto and addressed to the
Underwriters, the Indenture Trustee, the Owner Trustee, the Pass
Through Trustee, each Liquidity Provider and the Lessee;
(iv) Bingham, Dana & Gould LLP, special counsel for the Owner
Trustee, in the form of Exhibit A(3)(a)(i) hereto and addressed to
the Underwriters, the Indenture Trustee, the Owner Trustee, the Pass
Through Trustee, each Liquidity Provider and the Lessee;
(v) Ray, Quinney & Nebeker, special counsel for the Pass Through
Trustee and the Subordination Agent, in the form of Exhibit A(4)
hereto and addressed to the Underwriters, the Indenture Trustee, the
Owner Trustee, the Pass Through Trustee, each Liquidity Provider and
the Lessee; and
(vi) Johan Tyteca, Esq., manager of the Legal Department of
Kredietbank N.V., in the form of Exhibit A(5)(a) hereto, and Milbank,
Tweed, Hadley & McCloy, special counsel for the Liquidity Providers,
in the form of Exhibit A(5)(b) hereto, each addressed to the Pass
Through Trustee, the Subordination Agent, each Liquidity Provider and
the Lessee.
(k) No Indenture Event of Default. No Indenture Event of Default or
Indenture Default has occurred and is continuing.
(l) Event of Default; Default; Event of Loss. No Default or Event
of Default under the Lease or Event of Loss or event, which with the
passage of time or if continued unremedied or unaltered would constitute an
Event of Loss, shall have occurred or be in existence.
(m) Other Agreements. The Lessee and the Pass Through Trustee shall
have entered into the Pass Through Agreement and the Series Supplements, all
conditions to the effectiveness of each thereof shall have been satisfied
or waived, and the Pass Through Certificates shall have been issued
pursuant to the Series Supplements. The Lessee and the Underwriters shall
have entered into the Underwriting Agreement, all conditions to the
effectiveness thereof shall have been satisfied or waived, and the Pass
Through Certificates shall have been delivered pursuant to the Underwriting
Agreement. All conditions to the effectiveness of each Liquidity Facility
shall have been satisfied or waived.
(n) Payment of Taxes. (A) All taxes, fees, charges, assessments,
costs and other expenses then due and payable in connection with the
execution, delivery, recording and filing of all financing statements
referred to in subparagraph (f) of this Section 4.01, or in connection with
the issuance of the Certificates shall have been duly paid or caused to be
paid in full; and (B) all sales or use taxes and duties related to the
consummation of the transactions contemplated by the Operative Agreements
on the Certificate Closing Date which are then due and payable shall have
been duly paid in full.
(o) Governmental Compliance. All appropriate action required to
have been taken by the FAA, the SEC, or any governmental or political
agency, subdivision or instrumentality of the United States, prior to the
Certificate Closing Date in connection with the transactions contemplated
by this Agreement shall have been taken, and all orders, permits, waivers,
authorizations, exemptions and approvals (collectively "permits") of such
entities required to be in effect on the Certificate Closing Date in
connection with the transactions contemplated by this Agreement shall have
been issued, and all such permits shall be in full force and effect on the
Certificate Closing Date.
(p) Section 131.3 of the New York State Banking Law Filing. SSB
shall have delivered evidence of its filing made with the New York
Superintendent of Banking pursuant to Section 131.3 of the New York State
Banking Law.
Section 4.02. Conditions Precedent (Delivery Date). Subject to the
last paragraph of this Section 4.02, the obligations of the Owner Trustee, the
Owner Participant, the Indenture Trustee, the Subordination Agent and the Pass
Through Trustee on behalf of each Pass Through Trust to participate in the
transactions contemplated hereby on the Delivery Date are subject to the
fulfillment to the satisfaction of each party (or waiver by such party), prior
to or on the Delivery Date, of the following conditions precedent (it being
understood that receipt by the Lessee of any of the following documents shall
not be a condition precedent to the obligation of any party):
(a) Notice, Etc. Each party hereto shall have received a Delivery
Notice pursuant to Section 3.01 hereof at least three (3) Business Days
prior to the Delivery Date.
(b) Legal Investment. No change shall have occurred after the date
which is two days prior to the Certificate Closing Date in applicable laws
or regulations, or interpretations of any such laws or regulations by
applicable regulatory authorities, which, in the opinion of the Owner
Participant or its special counsel, the Pass Through Trustee, the
Subordination Agent or the Indenture Trustee or their special counsel,
would make it illegal for the Owner Participant, the Lessee, the Owner
Trustee, the Pass Through Trustee, the Subordination Agent or the Indenture
Trustee, and no change in circumstances shall have occurred which would
otherwise make it illegal or otherwise in contravention of guidance issued
by regulatory authorities for the Owner Participant, the Lessee, the Owner
Trustee, the Pass Through Trustee, the Subordination Agent or the Indenture
Trustee, to participate in the transactions to be consummated on the
Delivery Date; and no action or proceeding shall have been instituted nor
shall governmental action before any court, governmental authority or
agency be threatened which in the opinion of counsel for the Owner
Participant, the Indenture Trustee, the Subordination Agent or the Pass
Through Trustee is not frivolous, nor shall any order have been issued or
proposed to be issued by any court, or governmental authority or agency, as
of the Delivery Date, to set aside, restrain, enjoin or prevent the
consummation of any of the transactions contemplated by this Agreement or
by any of the other Operative Agreements.
(c) Documents. The documents referred to in Section 4.01(d) hereof
shall each be in full force and effect and the following documents shall
have been duly authorized, executed and delivered by the respective party
or parties thereto, shall each be satisfactory in form and substance to the
Lessee, the Owner Trustee, the Indenture Trustee, the Pass Through Trustee,
the Subordination Agent and the Owner Participant (each acting directly or
by authorization to its special counsel) and shall each be in full force
and effect; there shall not have occurred any default thereunder, or any
event which with the lapse of time or the giving of notice or both would be
a default thereunder, and copies executed or certified as requested by the
Lessee, the Owner Trustee, the Indenture Trustee, the Pass Through Trustee
or the Owner Participant, as the case may be, of such documents shall have
been delivered to the Owner Participant, the Lessee, the Indenture Trustee,
the Pass Through Trustee and the Owner Trustee (provided that the sole
chattel-paper original of the amended and restated Lease (whether delivered
on the Transfer Date or the Delivery Date), the Lease Supplement and the
Ancillary Agreement I shall be delivered to the Indenture Trustee):
(i) this Agreement, as amended and restated as of the Delivery Date;
(ii) the Lease, as amended and restated as of the Delivery Date;
(iii) the Trust Agreement, as amended and restated as of the Delivery
Date;
(iv) the Indenture, as amended and restated as of the Delivery Date;
(v) the Lease Supplement covering the Aircraft, dated the Delivery
Date;
(vi) the Indenture and Security Agreement Supplement covering the
Aircraft, dated the Delivery Date;
(vii) in the case of the Owner Participant only, the Tax Indemnity
Agreement (unless delivered on the Transfer Date);
(viii) the Ancillary Agreement I;
(ix) the Invoice;
(x) the Engine Warranty Assignment;
(xi) the Engine Consent; and
(xii) the Bills of Sale;
unless, in the case of each of the documents listed in clauses (i) through
(iv) above they shall have been amended and restated as of and delivered on
the Transfer Date.
(d) Legal Opinions. The Owner Participant, the Underwriters, the
Lessee, the Owner Trustee, the Pass Through Trustee and the Indenture
Trustee (acting directly or by authorization to its special counsel) shall
have received from the following counsel their respective legal opinions in
each case satisfactory to the Owner Participant, the Underwriters, the
Lessee, the Owner Trustee, the Pass Through Trustee or the Indenture
Trustee, as the case may be, as to scope and substance (and covering such
other matters as the recipient may reasonably request) and dated the
Delivery Date:
(i) George W. Hearn, Vice President - Law of the Lessee, in the
form of Exhibit A(1)(a)(ii) hereto and addressed to the Underwriters,
the Owner Participant, the Owner Trustee, the Pass Through Trustee,
each Liquidity Provider and the Indenture Trustee;
(ii) Davis Polk & Wardwell, special counsel for the Lessee, in the
form of Exhibit A(1)(b)(ii) hereto and addressed to the Underwriters,
the Owner Participant, the Indenture Trustee, the Owner Trustee, the
Pass Through Trustee, each Liquidity Provider and the Lessee;
(iii) Bingham, Dana & Gould, special counsel for the Owner
Trustee, in the form of Exhibit A(3)(a)(ii) hereto and addressed to
the Underwriters, the Owner Participant, the Indenture Trustee, the
Owner Trustee, the Pass Through Trustee, each Liquidity Provider and
the Lessee;
(iv) Special counsel for the Owner Participant, and in-house
counsel for the Owner Participant, each addressed to the
Underwriters, the Owner Participant, the Indenture Trustee, the Owner
Trustee, the Pass Through Trustee, each Liquidity Provider and the
Lessee;
(v) counsel for the Engine Manufacturer, in the form of Exhibit
A(6) hereto and addressed to the Underwriters, the Owner Participant,
the Indenture Trustee, the Owner Trustee, the Pass Through Trustee,
each Liquidity Provider and the Lessee; and
(vi) Daugherty, Fowler & Peregrin, special aviation counsel, in
the form of Exhibit A(7) hereto and addressed to the Underwriters,
the Owner Participant, the Indenture Trustee, the Owner Trustee, the
Pass Through Trustee, each Liquidity Provider and the Lessee.
(e) Title, Airworthiness and Registration. On the Delivery Date, the
following statements shall be true, and the Owner Participant, the Indenture
Trustee, the Pass Through Trustee and the Owner Trustee shall have received
evidence from the Lessee reasonably satisfactory to the Owner Participant,
the Indenture Trustee, the Pass Through Trustee and the Owner Trustee to
the effect that:
(i) the Owner Trustee has good and marketable title (subject to
filing and recording of the FAA Bill of Sale with the Aeronautics
Authority) to the Aircraft, free and clear of Liens, except the
rights of the Owner Trustee and the Lessee under the Lease and the
Lease Supplement covering the Aircraft, the rights of the Indenture
Trustee under the Indenture and the beneficial interest of the Owner
Participant created by the Trust Agreement and the interest of the
Certificate Holders created by the Indenture and the Indenture and
Security Agreement Supplement covering the Aircraft, which evidence
shall include the Bills of Sale;
(ii) the Aircraft has been duly certificated by the Aeronautics
Authority as to type and airworthiness in accordance with the terms
of the Operative Agreements;
(iii) the FAA Bill of Sale, the amended and restated Lease and the
Lease Supplement covering the Aircraft, the amended and restated
Indenture and the Indenture and Security Agreement Supplement
covering the Aircraft and the amended and restated Trust Agreement
shall have been duly filed for recordation (or shall be in the
process of being so duly filed for recordation) with the Aeronautics
Authority pursuant to the Transportation Code; and
(iv) application to the Aeronautics Authority for registration of
the Aircraft in the name of the Owner Trustee shall have been duly
made and the Lessee shall have temporary or permanent authority to
operate the Aircraft.
(f) Financing Statements. (i) a form UCC-3 financing statement to
amend and restate each financing statement referred to in Section 4.01(f)
hereof shall have been executed and delivered by the Owner Trustee, as
debtor, and by the Indenture Trustee as secured party, and a form UCC-1
financing statement covering all the security interests (and other
interests) created by or pursuant to the Granting Clause of the Indenture
shall have been executed and delivered by the Owner Trustee, as debtor, and
by the Indenture Trustee, as secured party, for and on behalf of the
Holders, and concurrently with the transactions contemplated on the
Delivery Date such UCC-3 financing statement and UCC-1 financing statement
shall have been duly filed or duly submitted for filing in the State of
Connecticut, and all other actions shall have been taken which, in the
opinion of special counsel for the Pass Through Trustee or for the
Underwriters, are necessary or desirable to maintain the perfection of the
security interest created by or pursuant to the Granting Clause of the
Indenture, and (ii) a UCC notice filing describing the Lease as a lease
shall have been executed and delivered by the Owner Trustee, as lessor, and
the Lessee, as lessee (which filing shall name the Indenture Trustee as
assignee of the Owner Trustee), and shall have been duly filed in the State
of Tennessee.
(g) Payments. The Owner Participant shall have made available its
Commitment to the Owner Trustee and the other payments contemplated by
Section 3.02 hereof shall have been made.
(h) Report of Aircraft Expert. The Owner Participant shall have
received a report prepared by BK Associates, Inc. addressed to the Owner
Participant (with an abbreviated report to the Lessee) which report shall
be in form and substance satisfactory to the Owner Participant to the
effect, among other things, that on the Delivery Date:
(i) (A) the estimated fair market value of the Aircraft net of
any cost to the Owner Participant or the Owner Trustee of return at
the end of the Basic Term and any Fixed Renewal Term (determined
without including in such value any increase or decrease for
inflation or deflation during the Term) is equal to or greater than
20% of the Purchase Price for the Aircraft and (B) at least 20% of
the useful economic life of the Aircraft will be remaining at the end
of the Basic Term and any Fixed Renewal Term;
(ii) the estimated useful life of the Aircraft is at least 133% of
the Basic Term and any Fixed Renewal Term;
(iii) the Purchase Price of the Aircraft is no greater than the
fair market value of the Aircraft on the Delivery Date;
(iv) on the Delivery Date, the Aircraft will not require any
modifications, improvements or additions in order to be rendered
complete for its intended purpose by the Lessee;
(v) the amount payable by the Lessee upon the exercise of its
purchase option pursuant to Section 4.02(a)(F) of the Lease equals or
exceeds the currently estimated Fair Market Value of the Aircraft on
such date (taking into account inflation or deflation to such date);
and
(vi) the Aircraft is not limited use property.
(i) Insurance. Each of the Indenture Trustee, the Pass Through
Trustee, the Owner Trustee and the Owner Participant shall have received
such evidence as it deems appropriate, including, without limitation, an
independent insurance broker's report, together with certificates of
insurance from such broker, in form and substance satisfactory to the
Indenture Trustee, the Pass Through Trustee, the Owner Trustee and the
Owner Participant to establish that the insurance required by Article 13 of
the Lease is in effect.
(j) Payment of Taxes. (A) All taxes, fees, charges, assessments,
costs and other expenses then due and payable in connection with the
execution, delivery, recording and filing of all financing statements and
the documents and instruments referred to in subparagraphs (e) and (f) of
this Section 4.02, or in connection with the purchase of the Aircraft by
the Owner Trustee and the making by the Owner Participant of its equity
investment shall have been duly paid or caused to be paid in full; and (B)
all sales or use taxes and duties related to the consummation of the
transactions contemplated by the Operative Agreements on the Delivery Date
which are then due and payable shall have been duly paid in full.
(k) No Indenture Event of Default. No Indenture Event of Default or
Indenture Default has occurred and is continuing.
(l) Event of Default; Default; Event of Loss. No Default or Event
of Default under the Lease or Event of Loss or event, which with the
passage of time or if continued unremedied or unaltered would constitute an
Event of Loss, shall have occurred or be in existence.
(m) Governmental Compliance. All appropriate action required to
have been taken by the FAA, the SEC, or any governmental or political
agency, subdivision or instrumentality of the United States, prior to the
Delivery Date in connection with the transactions contemplated by this
Agreement shall have been taken, and all orders, permits, waivers,
authorizations, exemptions and approvals (collectively "permits") of such
entities required to be in effect on the Delivery Date in connection with
the transactions contemplated by this Agreement shall have been issued, and
all such permits shall be in full force and effect on the Delivery Date.
(n) Officer's Certificate of Lessee. On the Delivery Date, the
following statements shall be true, and the Owner Participant, the Owner
Trustee, the Pass Through Trustee and the Indenture Trustee shall have
received a certificate signed by the Vice President and Treasurer or any
other duly authorized officer of the Lessee, dated the Delivery Date,
stating that:
(i) the representations and warranties of the Lessee contained in
the Operative Agreements to which it is a party (excluding the Tax
Indemnity Agreement) and in any certificate delivered pursuant hereto
or thereto are true and correct on and as of the Delivery Date as
though made on and as of such date (except to the extent that such
representations and warranties relate solely to an earlier date, in
which case such certificate shall state that such representations and
warranties were true and correct on and as of such earlier date);
(ii) except for the matters described (i) under "Legal
Proceedings" in the Lessee's Annual Report on Form 10-K for the
fiscal year ended May 31, 1996 (as updated by Note 7 to the financial
statements included in the Lessee's Quarterly Reports on Form 10-Q
for the fiscal quarters ended August 31, 1996, November 30, 1996 and
February 28, 1997) and (ii) in the Lessee's Current Reports on Form
8-K dated June 7, 1996, August 16, 1996 and March 4, 1997, as to
which such officer will make no certification concerning the
liability of the Lessee (if any), or the effect of any adverse
determination upon the consolidated financial condition, business or
operations of the Lessee, no material adverse change has occurred in
the financial condition, business or operations of the Lessee from
that shown in the audited financial statements of the Lessee as of
May 31, 1996 or the unaudited consolidated financial statements of
the Lessee as of February 28, 1997 and nothing has occurred which
will, in the judgment of such officer, materially adversely affect
the ability of the Lessee to carry on its business or to perform its
obligations under this Agreement and each other Operative Agreement
to which it is or is to be a party; and
(iii) no event has occurred and is continuing, or would result
from the purchase, sale, mortgage, or lease of the Aircraft, which
constitutes an Event of Loss (or event which with the passage of time
would become an Event of Loss) with respect to the Airframe or any
Engine, or a Default or an Event of Default under the Lease.
(o) Officer's Certificate of Owner Participant. On the Delivery
Date, the following statements shall be true, and the Lessee, the Pass
Through Trustee, the Owner Trustee and the Indenture Trustee shall have
received a certificate from the Owner Participant, signed by a duly
authorized officer of the Owner Participant dated the Delivery Date,
stating that:
(i) the representations and warranties of the Owner Participant
contained in this Agreement, the Trust Agreement and any other
Operative Agreement (excluding the Tax Indemnity Agreement) to which
it is a party and in any certificate delivered pursuant hereto or
thereto, are true and correct on and as of the Delivery Date as
though made on and as of such date (except to the extent that such
representations and warranties relate solely to an earlier date, in
which case such certificate shall state that such representations and
warranties were true and correct on and as of such earlier date);
(ii) no Lessor's Liens attributable to the Owner Participant
exist; and
(iii) no event has occurred and is continuing which constitutes
or, with notice or lapse of time or both would constitute, due to any
action or omission on the part of the Owner Participant, an Indenture
Event of Default other than an Indenture Event of Default
attributable to a Lease Event of Default.
(p) Other Officer's Certificates. On the Delivery Date, the
following statements shall be true, and the Owner Participant, the Lessee,
the Pass Through Trustee, the Owner Trustee, the Subordination Agent and
the Indenture Trustee shall have received a certificate from each of SSB
and the Owner Trustee (in the case of the Lessee, the Pass Through Trustee,
the Owner Participant, the Subordination Agent and the Indenture Trustee),
FSB and the Indenture Trustee (in the case of the Lessee, the Pass Through
Trustee, the Owner Participant, the Subordination Agent and the Owner
Trustee), FSB and the Pass Through Trustee (in the case of the Lessee, the
Indenture Trustee, the Owner Participant, the Subordination Agent and the
Owner Trustee) and FSB and the Subordination Agent (in the case of the
Lessee, the Indenture Trustee, the Owner Participant, the Pass Through
Trustee and the Owner Trustee) signed by a duly authorized officer of SSB
and FSB, respectively, dated the Delivery Date, stating with respect to SSB
and the Owner Trustee, with respect to FSB and the Indenture Trustee, with
respect to FSB and the Pass Through Trustee or with respect to FSB and the
Subordination Agent, as the case may be, that:
(i) the representations and warranties of SSB in its individual
capacity and as Owner Trustee, of FSB in its individual capacity and
as Indenture Trustee, of FSB in its individual capacity and as Pass
Through Trustee or of FSB in its individual capacity and as
Subordination Agent contained in this Agreement, the Lease, the Trust
Agreement and the Indenture and in any certificate delivered pursuant
hereto or thereto are true and correct on and as of the Delivery Date
as though made on and as of such date (except to the extent that such
representations and warranties relate solely to an earlier date, in
which case such certificate shall state that such representations and
warranties were true and correct on and as of such earlier date);
(ii) to the best of its knowledge, no event has occurred and is
continuing, which constitutes or which, but for the lapse of time or
the giving of notice, or both, would constitute, due to any action or
omission on the part of SSB in its individual capacity or as Owner
Trustee, of FSB in its individual capacity or as Indenture Trustee,
of FSB in its individual capacity or as Pass Through Trustee, an
Event of Default or an Indenture Event of Default or of FSB in its
individual capacity or as Subordination Agent, an Event of Default or
an Indenture Event of Default; and
(iii) there are no Lessor's Liens attributable to the Owner
Trustee or SSB and no Indenture Trustee's Liens affecting the Trust
Indenture Estate or the Lessor's Estate or any part thereof.
(q) Release of Debt Portion. The Indenture Trustee shall have
released the Debt Portion from (or such lesser amount as may then be held in)
the Collateral Account.
(r) Officer's Certificate of Lessee Regarding Mandatory Economic
Terms and Mandatory Document Terms. On the Delivery Date, or if earlier, the
Transfer Date, in connection with the amendments contemplated by Section
2.03(a) hereof, the Lessee shall have delivered a certificate to the Pass
Through Trustee and the Liquidity Providers signed by the Vice President and
Treasurer or any other duly authorized officer of the Lessee stating that (i)
the Operative Agreements which are amended and restated as of the Delivery
Date or the Transfer Date, as the case may be, do not vary the Mandatory
Economic Terms and contain the Mandatory Document Terms and (ii) any
substantive modification of such documents from those in effect on the
Certificate Closing Date does not materially and adversely affect the Holders
of Pass Through Certificates and each Liquidity Provider and such
certification shall be true and correct.
Notwithstanding anything else to the contrary in this Section 4.02, it shall
not be a condition precedent to the obligations of the Indenture Trustee, the
Pass Through Trustee or the Subordination Agent that the conditions in Section
4.02(n) and (o) be satisfied if the Lessee certifies that the failure to
fulfill such condition precedent is not reasonably likely to materially
adversely affect the holders of Pass Through Certificates and, in the event of
such failure, there has been delivered to the Indenture Trustee written
confirmation from both Moody's and S&P of the rating on any class of Pass
Through Certificates.
Section 4.03. Opinion of Special Aviation Counsel Upon Registration.
Promptly upon the registration of the Aircraft and the filing and, where
appropriate, recordation pursuant to the Transportation Code, of the FAA Bill
of Sale, the Trust Agreement, the Lease (with the Lease Supplement covering
the Aircraft, the Indenture and the Indenture and Security Agreement
Supplement covering the Aircraft attached as exhibits) and the Indenture (with
the Indenture and Security Agreement Supplement covering the Aircraft attached
as an exhibit), the Lessee shall cause Special Aviation Counsel to deliver to
the Owner Participant, the Lessee, the Owner Trustee, the Pass Through Trustee
and the Indenture Trustee an opinion as to (i) the due registration of the
Aircraft in the name of the Owner Trustee, (ii) the due recording pursuant
to the Transportation Code of the FAA Bill of Sale, the amended and
restated Trust Agreement, the amended and restated Lease (with such Lease
Supplement, the amended and restated Indenture and such Indenture and
Security Agreement Supplement attached as exhibits), and the amended and
restated Indenture (with such Indenture and Security Agreement Supplement
attached as an exhibit), and (iii), subject to customary qualifications,
the lack of any intervening documents with respect to the Aircraft.
ARTICLE 5
CONDITIONS PRECEDENT TO LESSEE'S OBLIGATIONS
Section 5.01. Conditions Precedent to Lessee's Obligations. The
Lessee's obligation to participate in the transactions contemplated hereby on
the Certificate Closing Date is subject to the conditions that, prior to or on
the Certificate Closing Date, the Lessee shall have received the certificates
and other documents which are referred to in, or the opinions to be addressed
to it under, as the case may be, paragraphs (d), (g)(ii)-(v), (i),
(j)(ii)-(vi) of Section 4.01 hereof and the Underwriters shall have made
available the amounts required to be paid by them pursuant to Section 2.01
hereof, and the Lessee's obligation to participate in the transactions
contemplated hereby on the Delivery Date, is subject to the conditions that,
on or prior to the Delivery Date, the Lessee shall have received the documents
which are referred to in, or the opinions to be addressed to it under, as the
case may be, paragraphs (c) and (d)(ii)-(vi) of Section 4.02 hereof and the
Indenture Trustee shall have released the Debt Portion from (or such lesser
amount as may then be held in) the Collateral Account.
ARTICLE 6
LESSEE'S REPRESENTATIONS, WARRANTIES AND COVENANTS
Section 6.01. Lessee's Representations and Warranties. The Lessee
represents and warrants to the Owner Participant, the Owner Trustee (in its
individual capacity and as Owner Trustee), the Pass Through Trustee (in its
individual capacity and as Pass Through Trustee), each Liquidity Provider and
the Indenture Trustee (in its individual capacity and as Indenture Trustee)
that, on the date hereof and as of the Certificate Closing Date and the
Delivery Date (unless otherwise specified herein):
(a) the Lessee is a corporation duly organized and validly existing
and is in good standing under the laws of the State of Delaware with its
principal place of business and chief executive office (as such terms are
used in Article 9 of the Uniform Commercial Code) in Memphis, Tennessee,
and is duly qualified to do business as a foreign corporation and is in
good standing in all jurisdictions in which it has intrastate routes, or
offices or major overhaul facilities or in which other activities of the
Lessee require such qualification;
(b) the Lessee has full power, authority and legal right to conduct
its business and operations as currently conducted and to own or hold under
lease its Properties and to enter into and perform its obligations under
this Agreement, the other Operative Agreements to which it is a party, the
Pass Through Agreement and the Series Supplements (the "Lessee Documents");
(c) the Lessee is an "air carrier" within the meaning of the
Transportation Code and a holder of a certificate under Sections 41102(a)
and 41103 of the Transportation Code and a "citizen of the United States"
within the meaning of Section 40102(a)(15) of the Transportation Code
holding an "air carrier operating certificate" issued under Chapter 447 of
the Transportation Code for aircraft capable of carrying ten (10) or more
individuals or 6,000 pounds or more of cargo, and each such certificate is
in full force and effect;
(d) the Lessee possesses all necessary certificates, franchises,
licenses, permits, rights and concessions and consents (collectively
"permits") which are material to the operation of the routes flown by it
and the conduct of its business and operations as currently conducted and
each such permit is in full force and effect;
(e) the execution, delivery and performance of the Lessee Documents
by the Lessee have been duly authorized by all necessary corporate action
on the part of the Lessee and do not require any stockholder approval, or
approval or consent of any trustee or holder of any indebtedness or
obligations of the Lessee, and each such document has been duly executed
and delivered or, in the case of the Operative Agreements identified in
Section 4.02(c) hereof, will on the Delivery Date be executed and delivered
by the Lessee and constitutes (or will constitute, as the case may be) the
legal, valid and binding obligations of the Lessee enforceable against it
in accordance with the terms thereof except as such enforceability may be
limited by bankruptcy, insolvency, moratorium, reorganization or other
similar laws or equitable principles of general application to or affecting
the enforcement of creditors' rights generally (regardless of whether
enforceability is considered in a proceeding in equity or at law);
(f) no authorization, consent or approval of or other action by, and
no notice to or filing with, any United States federal or state
governmental authority or regulatory body (other than the SEC) is required
for the execution, delivery or performance by the Lessee of the Lessee
Documents or for the use and maintenance of the Aircraft except for such
registrations, applications and recordings referred to in the opinions of
Special Aviation Counsel delivered or to be delivered pursuant to Sections
4.02(d)(iii) and 4.03 hereof and except for the filings referred to in
Sections 4.01(f) and 4.02(f) hereof, all of which shall have been duly
obtained or made and shall be in full force and effect on and as of the
Certificate Closing Date or the Delivery Date, or as contemplated by said
Sections;
(g) neither the execution, delivery or performance by the Lessee of
the Lessee Documents nor compliance with the terms and provisions hereof or
thereof, conflicts or will conflict with or results or will result in a
breach or violation of any of the terms, conditions or provisions of, or
will require any consent (other than the Engine Consent which will be
executed on or prior to the Delivery Date) or approval under, any law,
governmental rule or regulation or the charter documents, as amended, or
bylaws, as amended, of the Lessee or any order, writ, injunction or decree
of any court or governmental authority against the Lessee or by which it or
any of its Properties is bound or any indenture, mortgage or contract or
other agreement or instrument to which the Lessee is a party or by which it
or any of its Properties is bound, or constitutes or will constitute a
default thereunder or results or will result in the imposition of any Lien
upon any of its Properties;
(h) there are no pending or, to the knowledge of the Lessee,
threatened actions, suits, investigations or proceedings (whether or not
purportedly on behalf of the Lessee) against or affecting the Lessee or any
of its Property before or by any court or administrative agency which (A)
involve the Aircraft, (B) except for the matters described (i) under "Legal
Proceedings" in the Lessee's Annual Report on Form 10-K for the fiscal year
ended May 31, 1996 (as updated by Note 7 to the financial statements
included in the Lessee's Quarterly Reports on Form 10-Q for the fiscal
quarters ended August 31, 1996, November 30, 1996 and February 28, 1997)
and (ii) in the Lessee's Current Reports on Form 8-K dated June 7, 1996,
August 16, 1996 and March 4, 1997, as to which no representation is made
concerning the Lessee's liability (if any) or the effect of any adverse
determination upon the consolidated financial condition, business or
operations of the Lessee, if adversely determined, would materially and
adversely affect the consolidated financial condition, business or
operations of the Lessee, or (C) if adversely determined would adversely
affect the ability of the Lessee to perform its obligations under the
Lessee Documents;
(i) the Lessee has filed or caused to be filed all tax returns which
are required to be filed and has paid or caused to be paid all taxes shown
to be due and payable pursuant to such returns or pursuant to any
assessment received by the Lessee (other than assessments the payment of
which is being contested in good faith by the Lessee by appropriate
proceedings that do not involve any material danger of sale, forfeiture or
loss of the Aircraft or any part thereof), and the Lessee has no knowledge
of any related actual or proposed deficiency or additional assessment which
either in any case or in the aggregate would materially adversely affect
the Lessee's consolidated financial condition (other than, in any such
case, assessments, the payment of which is being contested in good faith
by the Lessee, as to which no representation is made concerning the
Lessee's liability (if any) or the effect of any adverse determination
upon the Lessee's consolidated financial condition);
(j) except for (A) the registration in the Owner Trustee's name of
the Aircraft pursuant to the Transportation Code to be accomplished by
filing with the FAA, of the FAA Bill of Sale, the Trust Agreement, the
Affidavits and the Application, (B) the filing with and, where appropriate,
recordation by the FAA pursuant to the Transportation Code of the
Indenture, the Indenture and Security Agreement Supplement covering the
Aircraft, the Lease and the Lease Supplement covering the Aircraft, (C) the
filing of the financing statements referred to in Sections 4.01(f) and
4.02(f) hereof and (D)(x) on the Certificate Closing Date, the taking of
possession by the Indenture Trustee of the Liquid Collateral and
maintaining possession by the Indenture Trustee thereof as contemplated in
Section 2.14(a) of the Indenture and (y) on the Delivery Date, the taking
of possession by the Indenture Trustee of the original counterpart of the
Lease and the Lease Supplement covering the Aircraft, no further action,
including any filing or recording of any document, is necessary or
advisable in order (i) to establish the Owner Trustee's title to and
interest in the Aircraft and the Lessor's Estate as against the Lessee and
any third parties, or (ii) to perfect the first security interest in and
mortgage Lien on the Trust Indenture Estate in favor of the Indenture
Trustee;
(k) on the Delivery Date, the Owner Trustee has received good and
marketable title to the Aircraft, free and clear of all Liens, except the
rights of the Lessee under the Lease and the Lease Supplement, the rights
of the Indenture Trustee under the Indenture and the beneficial interest of
the Owner Participant created by the Trust Agreement;
(l) the Lessee has heretofore delivered to the Owner Participant
true and correct copies of the Lessee's Annual Report on Form 10-K for the
fiscal year ended May 31, 1996 and its Quarterly Reports on Form 10-Q for
the fiscal quarters ended August 31, 1996, November 30, 1996 and February
28, 1997, and of the audited consolidated balance sheet of the Lessee for
the fiscal year ended May 31, 1996 and the unaudited consolidated balance
sheets of the Lessee as of August 31, 1996, November 30, 1996 and February
28, 1997, and the related consolidated statements of income, changes in
common stockholders' investment and cash flows for the fiscal year and
interim reporting periods ended on such dates, accompanied (except in the
case of such interim reporting periods) by a report thereon containing
opinions without qualification, except as therein noted, by Arthur Andersen
LLP, independent public accountants; said financial statements have been
prepared in accordance with generally accepted accounting principles
consistently applied and present fairly the financial position of the
Lessee as of such dates and the results of its operations and cash flows
for such periods and such Annual Report, Quarterly Reports and financial
statements did not, as of their respective dates of filing with the SEC,
contain any untrue statement of a material fact or omit a material fact
necessary to make the statements contained therein not misleading;
(m) with respect to ERISA:
(i) none of the Pension Plans (as hereinafter defined) nor their
related trusts have been terminated in a distress termination
pursuant to Section 4041(c) of ERISA or by the PBGC (as hereinafter
defined) pursuant to Section 4042 of ERISA, nor have any actions been
taken to so terminate any Pension Plan or related trust and neither
the Lessee nor any ERISA Affiliate (as hereinafter defined) has
incurred or could reasonably be expected to incur any material
liability with respect to a Pension Plan under Section 4062, 4063,
4064 or 4069 of ERISA;
(ii) there have been no "reportable events" (as such term is
defined in Section 4043(b) of ERISA) with respect to any Pension Plan
which have resulted or could reasonably be expected to result in any
material liability of the Lessee or any ERISA Affiliate;
(iii) no "accumulated funding deficiency" (as such term is defined
in Section 302 of ERISA or Section 412 of the Code) exists with
respect to any Pension Plan, whether or not waived, nor has any
request for a waiver under Section 412(d) of the Code been, or is
reasonably likely to be, filed with respect to any of the Pension
Plans;
(iv) neither the Lessee nor any ERISA Affiliate has failed to make
any contribution or payment to any Pension Plan which has resulted or
could reasonably be expected to result in the imposition of a Lien
under Section 302(f) of ERISA or Section 412(n) of the Code;
(v) all Pension Plans are in compliance in all material respects
with all applicable provisions of ERISA and the Code;
(vi) neither the Lessee nor any ERISA Affiliate has incurred or is
reasonably likely to incur any material withdrawal liability pursuant
to Section 4201 or 4204 of ERISA or any material liability under
Section 515 of ERISA;
(vii) to the best of the Lessee's knowledge, neither the Lessee
nor any ERISA Affiliate has engaged in a "prohibited transaction"
(within the meaning of Section 4975 of the Code or Section 406 of
ERISA) which could reasonably be expected to subject the Lessee to
the tax or penalties on prohibited transactions imposed by Section
4975 of the Code or Section 502 of ERISA; and
(viii) assuming the truth of the representations contained in
Section 7.09 hereof and compliance with Section 10.06 of the
Indenture, the execution and delivery of this Agreement and the other
Operative Agreements and the consummation of the transactions
contemplated hereby and thereby will not involve any transaction
which is prohibited by Section 406 of ERISA or in connection with
which a tax could be imposed pursuant to Section 4975 of the Code.
No part of the funds to be used by the Lessee in satisfaction of its
obligations under this Agreement or any other of the Operative
Agreements to which the Lessee is a party or to which the Lessee is
bound are the assets (within the meaning of ERISA and any applicable
rules and regulations) of any employee benefit plan subject to Title
I of ERISA, or any individual retirement account or an employee
benefit plan subject to Section 4975 of the Code.
As used in this Section 6.01(m), the term "Pension Plan" means an employee
pension benefit plan as defined in Section 3(2) of ERISA (other than a
multiemployer plan as defined in Section 4001(a)(3) of ERISA) which is
covered by Title IV of ERISA or subject to the minimum funding standards
under Section 412 of the Code and which is (or, solely for purposes of
clause (i) of this Section 6.01(m), within the preceding 5 calendar years
has been) maintained, or contributed to, by the Lessee or any ERISA
Affiliate; the term "PBGC" means Pension Benefit Guaranty Corporation and
any successor agency or instrumentality thereto; and the term "ERISA
Affiliate" means any entity which together with the Lessee would be treated
as a single employer under Section 414(b), (c), (m) or (o) of the Code;
(n) the Lessee is a Citizen of the United States;
(o) except for the filings referred to in Sections 4.01(f), 4.02(e)
and 4.02(f) hereof, no governmental approval of any kind is required of the
Owner Participant or for the Owner Participant's execution of or
performance under this Agreement or any agreement contemplated hereby by
reason of any fact or circumstance of the Lessee, the nature of the
Aircraft or the Lessee's proposed operations or use of the Aircraft;
(p) on the Delivery Date, all premiums with respect to the insurance
required to be provided by the Lessee on or prior to the Delivery Date
under Article 13 of the Lease have been paid by the Lessee;
(q) on the Delivery Date, all sales or use taxes relating to the
sale of the Aircraft by the Lessee to the Owner Trustee which are then or
were theretofore due shall have been paid;
(r) the Lessee is not in default under any mortgage, deed of trust,
indenture, lease or other instrument or agreement to which the Lessee is a
party or by which it or any of its Properties or assets may be bound, or in
violation of any applicable law, which default or violation would have a
material adverse effect on the financial condition, business or operations
of the Lessee or its ability to perform any of its obligations under the
Lessee Documents;
(s) no Default or Event of Default or Event of Loss or event, which
with the passage of time or if continued unremedied or unaltered would
constitute an Event of Loss, has occurred or exists;
(t) on the Delivery Date, the Aircraft will be in such condition so
as to enable the airworthiness certificate of such Aircraft to be in good
standing under the Transportation Code; the Aircraft will have been duly
certificated by the FAA as to type and airworthiness; there will be in
effect with respect to the Aircraft a current and valid airworthiness
certificate issued by the FAA pursuant to the Transportation Code; and
there is no fact known to the Lessee which materially adversely affects the
value, utility or condition of the Aircraft;
(u) neither the Lessee nor any subsidiary of the Lessee is an
"investment company" or a company "controlled by an investment company"
within the meaning of the Investment Company Act of 1940, as amended;
(v) on the Delivery Date, the Aircraft will, upon delivery, be fully
equipped to operate in commercial service and will comply with all
governmental requirements governing such service;
(w) on the Certificate Closing Date and the Delivery Date, the
Lessee shall not be in material default in the performance of any term or
condition of the Engine Warranty Assignment, the Modification Agreement and
the GTA; and
(x) there are no broker's or underwriter's fees payable on behalf of
the Lessee in connection with the transactions contemplated in the Operative
Agreements other than those of the Underwriters and First Chicago Leasing
Corporation referred to in Article 10 hereof.
Section 6.02. Offering by Lessee. The Lessee represents and
warrants that it has authorized no one to act on its behalf in connection with
the offer or sale of any interest in the Lessor's Estate or the Trust
Agreement other than First Chicago Leasing Corporation. Neither the Lessee
nor, based on representations of First Chicago Leasing Corporation, anyone
acting on its behalf has directly or indirectly offered any interest in the
Lessor's Estate or the Trust Agreement, or similar interests, for sale to, or
solicited any offer to acquire any of the same from, anyone other than the
Owner Participant and no more than 25 other accredited investors (as such term
is defined in Regulation D promulgated under the Securities Act of 1933, as
amended).
Section 6.03. Certain Covenants of Lessee. The Lessee covenants and
agrees with the Owner Participant, the Owner Trustee (in its individual
capacity and as Owner Trustee), the Pass Through Trustee (in its individual
capacity and as Pass Through Trustee) and the Indenture Trustee (in its
individual capacity and as Indenture Trustee) as follows:
(a) The Lessee will cause to be done, executed, acknowledged and
delivered at the Lessee's cost and expense all such further acts,
conveyances and assurances as the Owner Trustee, the Indenture Trustee, the
Pass Through Trustee or the Owner Participant shall reasonably require for
accomplishing the purposes of this Agreement, the Trust Agreement, the Tax
Indemnity Agreement, the Lease and the other Operative Agreements to which
it is a party. Without limiting the generality of this Section 6.03(a),
the Lessee will promptly take, or cause to be taken, at the Lessee's cost
and expense, such action with respect to the recording, filing,
re-recording and re-filing of the Indenture, each Indenture and Security
Agreement Supplement, the Lease, each Lease Supplement and any financing
statements or other instruments as may be necessary or as requested by the
Indenture Trustee and appropriate, to maintain the perfection of the first
security interest and the Lien created by the Indenture, and the Owner
Trustee's title to and interest in the Aircraft and the Lessor's Estate as
against the Lessee and any third parties or if the Lessee cannot take, or
cause to be taken, such action, will furnish to the Indenture Trustee and
the Owner Trustee timely notice of the necessity of such action, together
with such instruments, in execution form, and such other information as may
be required to enable either of them to take such action at the Lessee's
cost and expense in a timely manner.
(b) The Lessee shall maintain the certificates referred to in
Section 7.01 of the Lease and shall cause the Aircraft to remain duly
registered, in the name of the Owner Trustee, under the Transportation
Code; provided, however, that the Owner Participant, the Owner Trustee and
the Indenture Trustee agree that, so long as no Default or Event of Default
shall have occurred and be continuing, if, at any time after the eighth
anniversary of the Delivery Date, the Lessee has requested their consent to
the registration of the Aircraft in the name of the Owner Trustee (or, if
appropriate, in the name of the Lessee or a sublessee as a "lessee" or a
"sublessee"), at the Lessee's expense, in a country listed in Schedule III
hereto with which the United States then maintains normal diplomatic
relations, the Owner Participant, the Owner Trustee and the Indenture
Trustee upon receipt by each Owner Participant, the Owner Trustee and the
Indenture Trustee of the assurances and opinion described below, shall not
unreasonably withhold their consent to such change in registration (it
being agreed, without limitation, that the inability of the Lessee to
deliver such assurances and opinion shall constitute reasonable grounds to
withhold such consent).
As a condition to any change in the registration of the Aircraft,
each Owner Participant, the Owner Trustee in its individual and trust
capacities, and the Indenture Trustee shall have received, all at the Lessee's
cost and expense:
(i) assurances satisfactory to them:
(A) to the effect that the insurance provisions of the Lease have
been and will be complied with and are and shall be in full force and
effect upon such change of registry;
(B) that the Owner Trustee's right, title and interest in and to
the Aircraft is recognized and fully enforceable in the new
jurisdiction of registry and that the new jurisdiction of registry
will give effect to the title and registry of the Aircraft therein
substantially to the same extent as does the Government;
(C) that such new country of registry (x) would provide
substantially equivalent protection for the rights of owner
participants, lessors or lenders in similar transactions as provided
under United States law (except that, in the absence of restrictions
under the laws of such country on rights and remedies of lessors and
secured parties similar to those imposed by Sections 362 and 363 of
the Bankruptcy Code, rights and remedies similar to those available
under Section 1110 of the Bankruptcy Code shall not be required), and
(y)(i) if such change in registration is made at the request of the
Lessee or an Affiliate thereof, imposes maintenance standards at
least comparable to those of the FAA, and (ii) if such change in
registration is made in connection with a sublease permitted under
Section 7.02(a)(i) of the Lease, imposes maintenance standards in
conformity with those set forth in Section 7.02(a)(i) of the Lease;
(D) that import and export certificates and any exchange permits
necessary to allow all Rent and other payments provided for under the
Lease, if required, shall have been procured at the Lessee's own cost
and expense by the Lessee;
(E) that duties and tariffs, if applicable, shall have been paid
for by the Lessee;
(F) to the effect that the original indemnities (and any additional
indemnities for which the Lessee is then willing to enter into a
binding agreement to indemnify) in favor of the Owner Participant,
the Owner Trustee (in its individual capacity and as trustee under
the Trust Agreement), the Indenture Trustee (in its individual
capacity, and as trustee under the Indenture), the Pass Through
Trustee (in its individual capacity, and as trustee under the Pass
Through Agreement) and the other Indemnitees under this Agreement,
the Indenture, the Pass Through Agreement and (in the case of the
Owner Participant only) the Tax Indemnity Agreement, afford each such
party substantially the same protection as provided prior to such
change of registry and if the sublessee, if any, is a government or
governmental body, such sublessee shall have effectively waived any
rights to sovereign immunity;
(G) that such change will not result in the imposition of, or
increase in the amount of, any Tax for which the Lessee is not
required to indemnify the Owner Participant, the Indenture Trustee,
the Owner Trustee (or any successor, assign or Affiliate thereof) and
the Trust Estate pursuant to Article 8 hereof or for which the Lessee
has not agreed to indemnify such parties in a manner satisfactory to
such parties;
(H) of the payment by the Lessee of any reasonable fees and
expenses of the Owner Participant, the Owner Trustee, the Indenture
Trustee and the Pass Through Trustee in connection with such change
of registry, including any reasonable attorneys' fees and expenses;
(I) that the Lessee shall maintain the registration of the
Aircraft under the laws of such country unless and until the
registration of the Aircraft is changed as provided herein, and shall
cause to be done at all times all other acts (including, if
applicable, the filing, recording and delivery of any document or
instrument and the payment of any sum) necessary or, by reference to
prudent industry practice in such country, advisable in order to
create, preserve and protect the interests of the Lessor and the
Indenture Trustee as against the Lessee or any third parties in such
jurisdiction;
(J) as to the continuation of the Lien of the Indenture as a first
priority, duly perfected Lien on the Aircraft and the Trust Indenture
Estate, that all recordings and filings required to so perfect the
Lien of the Indenture have been duly effected, and that no Liens
(except Liens permitted under Section 6.01 of the Lease) shall arise
by reason of such registration; and
(K) that appropriate deregistration powers of attorney in favor of
the Owner Trustee and the Indenture Trustee have been executed and
delivered by the Lessee and any sublessee and, if necessary or
desirable for the effectiveness thereof, filed with the relevant
aeronautics authority;
(ii) a favorable opinion of counsel (reasonably satisfactory to the
Owner Trustee, the Indenture Trustee and the Owner Participant) in the new
jurisdiction of registry, addressed and reasonably satisfactory to such
parties in scope, form and substance, to the effect:
(A) that the terms (including, without limitation, the governing
law, service-of-process and jurisdictional-submission provisions
thereof) of the Lease and the Indenture are legal, valid, binding and
enforceable in such jurisdiction against the Lessee, any sublessee,
the Owner Trustee and the Indenture Trustee, respectively;
(B) that it is not necessary for the Owner Participant, the Owner
Trustee, the Indenture Trustee or the Pass Through Trustee to
register or qualify to do business or meet other requirements not
already met in such jurisdiction in connection with the registration
in the new jurisdiction (and the filing and/or recordation therein of
the Indenture or the Lease) and the exercise of any rights or
remedies with respect to the Aircraft pursuant to the Lease or the
Indenture or in order to maintain such registration and the Lien of
the Indenture;
(C) that the courts of such jurisdiction would provide
substantially equivalent protection to the Lessor, the Owner
Participant, the Pass Through Trustee and the Indenture Trustee as
provided under United States law (with the exception described in
paragraph (b)(i)(C)(x) of this Section 6.03) in respect of the
transactions contemplated hereby, including, without limitation, the
remedies provided in the Indenture and the Lease;
(D) that there is no tort liability of the beneficial owner,
record owner, lessor or mortgagee of an aircraft not in possession
thereof under the laws of such jurisdiction, other than such tort
liability which might have been imposed on such owner, lessor or
mortgagee under the laws of the United States or any state thereof
(it being understood that, in the event such latter opinion cannot be
given in a form satisfactory to the Owner Trustee, the Owner
Participant and the Indenture Trustee, such opinion shall be waived,
if insurance reasonably satisfactory to the Owner Participant, the
Indenture Trustee and the Owner Trustee, in its individual capacity,
is provided, at the Lessee's expense, to cover such risk and the
Lessee undertakes to keep such insurance in full force and effect);
(E) that the laws of such jurisdiction (i) will not impair the
rights of the Lessor in and to the Aircraft and (ii) (unless the
Lessee shall have agreed to provide insurance reasonably satisfactory
to the Indenture Trustee and the Owner Participant covering the risk
of requisition of use of the Aircraft by the government of registry
of the Aircraft) require fair compensation by the government of such
jurisdiction payable in currency freely convertible into United
States dollars for the loss of use of the Aircraft in the event of
such requisition;
(F) that the Owner Trustee's title to the Aircraft is recognized
and fully enforceable in such jurisdiction, that such jurisdiction
will give effect to the title of the Aircraft therein substantially
to the same extent as does the Government, and that the Lien of the
Indenture shall continue as a first priority, duly perfected lien on
the Aircraft;
(G) as to the continuation of the Lien of the Indenture as a first
priority, duly perfected Lien on the Aircraft;
(H) that the rights of the Lessor in and to the Aircraft will not
be impaired in such new jurisdiction of registry; and
(I) to such further effect with respect to such other matters as
any Owner Participant, the Owner Trustee or the Indenture Trustee may
reasonably request.
(c) The Lessee shall promptly file any reports, or furnish to the
Owner Trustee and the Owner Participant such information as may be required
to enable the Owner Trustee and the Owner Participant timely to file any
reports required to be filed by the Owner Trustee as the Lessor and the
Owner Participant under the Lease with any governmental authority.
(d) The Lessee will cause the Special Aviation Counsel to file, and
where appropriate record, on the Delivery Date, the FAA Bill of Sale, the
Lease, the Lease Supplement, the Trust Agreement, the Indenture and the
Indenture and Security Agreement Supplement. The following documents shall
be filed and, where appropriate, recorded on the Delivery Date with the
Aeronautics Authority in the following order of priority: first, the FAA
Bill of Sale, second, the Application, with the Trust Agreement and the
Affidavits, third, the Indenture with the Indenture and Security Agreement
Supplement attached thereto, and fourth, the Lease with the Lease
Supplement, the Indenture and the Indenture and Security Agreement
Supplement attached thereto.
(e) The Lessee will furnish to the Owner Participant, the Owner
Trustee and the Indenture Trustee annually after the execution of this
Agreement, by March 15 of each year, commencing with the year 1998, an
opinion, reasonably satisfactory to the Owner Participant and the Indenture
Trustee, of Special Aviation Counsel, or other counsel specified from time
to time by the Lessee acceptable to the Lessor and the Indenture Trustee:
(i) stating either (1) that in the opinion of such counsel such action has
been taken with respect to the recording, filing, re-recording and
re-filing of the Lease, the Indenture, the Trust Agreement, and any
supplements to any of them and any financing statements, continuation
statements or other instruments, and all other action has been taken, as is
necessary to maintain the Owner Trustee's title to and interest in the
Aircraft and the Lessor's Estate as against the Lessee and any third
parties and to maintain the perfection of the security interests created by
said documents and reciting the details of such action, or (2) that in the
opinion of such counsel no such action is necessary to maintain such title
or the perfection of such security interests; (ii) specifying all other
action which needs to be taken during the succeeding 14 months in order to
maintain such title and the perfection of such security interests (which
the Lessee agrees timely to take); and (iii) stating that the Owner Trustee
is the owner of legal title to the Aircraft, and the Aircraft is free and
clear of all Liens, except the security interest created by the Indenture
and such as are permitted by the Lease and the Indenture.
(f) The Lessee shall at all times maintain its corporate existence
except as permitted by Section 6.03(g) hereof and all of its rights,
privileges and franchises necessary in the normal conduct of its business,
except for any corporate right, privilege or franchise (i) that it
determines, in its business judgment, is no longer necessary or desirable
in the conduct of its business and (ii) the loss of which will not
materially adversely affect or diminish the rights of the Holders or any
Owner Participant or the ability of the Lessee to perform its obligations
under the Operative Agreements.
(g) The Lessee shall not enter into any merger or consolidation, or
convey, transfer or lease all or substantially all of its assets as an
entirety to any Person, unless the surviving corporation or Person which
acquires by conveyance, transfer or lease all or substantially all of the
assets of the Lessee as an entirety (i) is a domestic corporation organized
and existing under the laws of the United States or a political subdivision
thereof, (ii) is a Citizen of the United States, (iii) is a U.S. Air
Carrier, (iv) expressly assumes by an instrument in writing in form and
substance satisfactory to the Owner Participant, the Indenture Trustee and
the Owner Trustee all of the Lessee's obligations hereunder and under the
other Operative Agreements, and each other document contemplated hereby or
thereby and the Lessee delivers such instrument to the Indenture Trustee,
the Owner Participant and the Owner Trustee, (v) provides an opinion from
outside counsel to the Lessee which counsel shall be reasonably
satisfactory to the Owner Participant and the Indenture Trustee and which
opinion shall be reasonably satisfactory to the Owner Participant and the
Indenture Trustee, and an officer's certificate, each stating that such
merger, consolidation, conveyance, transfer or lease and the instrument
noted in clause (iv) above comply with this Section 6.03(g), that such
instrument is a legal, valid and binding obligation of, and is enforceable
against, such survivor or Person (except as such enforceability may be
limited by bankruptcy, insolvency, moratorium, reorganization or other
similar laws or equitable principles of general application to or affecting
the enforcement of creditors' rights generally), and that all conditions
precedent herein provided for relating to such transaction have been
complied with, and (vi) immediately after such merger, consolidation or
conveyance, transfer or lease, as the case may be, the surviving company is
in compliance with all of the terms and conditions of this Agreement and
the Lease and each other Operative Agreement and each other document
contemplated hereby or thereby; provided that no such merger, consolidation
or conveyance, transfer or lease shall be permitted if the same gives rise
to a Default not capable of cure within the applicable grace period
therefor or an Event of Default.
Upon any consolidation or merger, or any conveyance, transfer or
lease of all or substantially all of the assets of the Lessee and the
satisfaction of the conditions specified in this Section 6.03(g), the
successor corporation formed by such consolidation or into which the Lessee
is merged or the Person 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 Lessee under this Agreement and the Lease and each other
Operative Agreement and any other document contemplated hereby and thereby
to which the Lessee is a party with the same effect as if such successor
corporation had been named as the Lessee herein and therein. No such
conveyance, transfer or lease of all or substantially all of the assets of
the Lessee as an entirety shall have the effect of releasing the Lessee or
any successor corporation which shall theretofore have become the Lessee
hereunder in the manner prescribed in this Section 6.03(g) from its
liability hereunder or under the other Operative Agreements. Nothing
contained herein shall permit any lease, sublease, or other arrangement for
the use, operation or possession of the Aircraft except in compliance with
the applicable provisions of the Lease.
(h) The Lessee agrees to give prompt written notice to the Owner
Participant, the Owner Trustee and the Indenture Trustee of any change in
the address of its chief executive office (as such term is used in Section
9-103(3) of the Tennessee Uniform Commercial Code) or of any change in its
corporate name.
(i) The Lessee agrees to furnish to the Owner Participant, the
Lessor and the Indenture Trustee:
(A) as soon as available, but in any event within one hundred
twenty (120) days after the end of each fiscal year of the Lessee, a
consolidated balance sheet as of the end of such fiscal year, and the
related consolidated statements of income, common stockholders'
equity, retained earnings and cash flows of the Lessee for the fiscal
year then ended as prepared and certified by the Lessee's independent
certified public accountants, including their opinion;
(B) within sixty (60) days after the end of the first, second and
third quarterly accounting periods in each fiscal year of the Lessee,
a consolidated balance sheet of the Lessee prepared by it as of the
close of the accounting period then ended, together with the related
consolidated statements of income, retained earnings and cash flows
for such accounting period certified by the chief accounting officer
or a financial vice president of the Lessee;
(C) promptly upon their general transmission, copies of all
regular and periodic reports furnished by the Lessee to its
stockholders;
(D) promptly after filing with the SEC, copies of the Lessee's
Annual Reports on Form 10-K (including all corresponding annual
reports to shareholders), Quarterly Reports on Form 10-Q and, if
requested, any registration statement or prospectus filed by the
Lessee with any securities exchange or with the SEC;
(E) promptly upon (and in any event within five (5) Business Days
after) any officer of the Lessee obtaining knowledge of any condition
or event which constitutes a Default or an Event of Default, an
officer's certificate specifying the nature and period of existence
thereof and what action the Lessee has taken or is taking or proposes
to take with respect thereto;
(F) promptly, notice of all legal or arbitral proceedings, and of
all proceedings by or before any governmental or regulatory authority
or agency, and of any material development in respect of such legal
or other proceedings affecting the Lessee, which in each case
specified above, if adversely determined, would, in the Lessee's
reasonable judgment, materially impair the ability of the Lessee to
perform its obligations under the Operative Agreements or consummate
the transactions contemplated hereby and thereby; and
(G) from time to time, such other financial information as the
Lessor, any Owner Participant or the Indenture Trustee may reasonably
request.
Concurrently with the delivery of the financial statements referred
to in clause (A) above, the Lessee shall deliver to the Lessor, the Owner
Participant, the Indenture Trustee and the Pass Through Trustee a certificate
of the Lessee, signed by any one of the President, the Chief Financial
Officer, the General Counsel, the Treasurer or the principal accounting
officer of the Lessee, stating that the signer, or an officer reporting to
same, is familiar with the relevant terms of this Agreement and the Lease and
the signer has reviewed, or has caused to be made under such Person's
supervision a review, of the activities of the Lessee and that, to the best of
his or her knowledge, there does not exist any Default or any Event of Default
or if a Default or an Event of Default exists or did exist, specifying the
nature thereof, the period of existence thereof and what action the Lessee has
taken or proposes to take with respect thereto.
Section 6.04. Survival of Representations and Warranties. The
representations and warranties of the Lessee provided in Sections 6.01 and 6.02
hereof and in any other Operative Agreement shall survive the Closings
hereunder and the delivery of the Aircraft and the expiration or other
termination of this Agreement and the other Operative Agreements.
ARTICLE 7
OTHER PARTIES' REPRESENTATIONS, WARRANTIES AND COVENANTS
Section 7.01. Acquisitions and Offerings of Interests in Lessor's
Estate. Owner Trustee. The Owner Trustee represents and warrants, both in
its individual capacity and as trustee, that neither it nor anyone authorized
to act on its behalf (i) has directly or indirectly offered or sold or will
directly or indirectly offer or sell any interest in the Lessor's Estate, or
in any similar security relating to the Lessor's Estate, or in any security
the offering of which for purposes of the Securities Act of 1933, as amended,
would be deemed to be part of the same offering as the offering of the
aforementioned securities to, or solicited any offer to acquire any of the
same from, any Person (other than the Initial Owner Participant and the Owner
Participant) and (ii) except as contemplated in Section 8.02(a) of the
Indenture, shall own Certificates.
Section 7.02. Citizenship. (a) Generally. The Owner Trustee, in
its individual capacity and as Trustee, represents and warrants that it is or
will be a Citizen of the United States on the Delivery Date. If the Owner
Trustee in its individual capacity does not comply with the requirements of
this Section 7.02, the Owner Trustee and the Indenture Trustee hereby agree
that a Default or an Event of Default shall not be deemed to have occurred and
be continuing under the Lease due to non-compliance by the Lessee with the
registration requirements in the Lease occasioned by the noncompliance of the
Owner Trustee.
(b) Owner Trustee. The Owner Trustee, in its individual capacity,
covenants that if at any time on or after the Delivery Date it shall cease to
be a Citizen of the United States, it will resign immediately as the Owner
Trustee if such citizenship is necessary under the Transportation Code as in
effect at such time or, if it is not necessary under the Transportation Code
as in effect at such time, if it is informed in writing by the Lessee, the
Indenture Trustee or any Owner Participant that such lack of United States
citizenship would have any adverse effect on the Lessee, the Indenture
Trustee, the Holders or any Owner Participant. The Owner Trustee, in its
individual capacity, further covenants that if at any time it appears
reasonably probable that it will cease to be a Citizen of the United States
based on information that is (i) known to a Responsible Officer or (ii)
generally known to the public, it will promptly so notify, to the extent
permitted by law, all parties to this Agreement.
Section 7.03. Concerning Assignment of Interests of Owner
Participant. In connection with the transfer by an Owner Participant to a
transferee Owner Participant, the Owner Trustee, the Lessee and the Indenture
Trustee shall be entitled to receive an opinion or opinions of counsel
reasonably satisfactory to each of them to the effect that the obligations of
such transferee under the Operative Agreements are legal, valid, binding and
enforceable in accordance with their terms, subject to customary exceptions,
and that such transfer will not be required to be registered under applicable
securities laws.
Section 7.04. Representations, Covenants and Warranties of SSB and
the Owner Trustee. (a) In addition to and without limiting its other
representations and warranties provided for in this Article 7, SSB represents
and warrants, in its individual capacity with respect to items (i), (ii),
(iii)(A), (iv), (v), (vi) and (vii) below, and as the Owner Trustee with
respect to items (iii)(B) and (iv) on the date hereof and as of the
Certificate Closing Date and the Delivery Date that:
(i) it is a national banking association duly organized and validly
existing in good standing under the laws of the United States of America
with its principal place of business and chief executive office (as such
terms are used in Article 9 of the Uniform Commercial Code) at 750 Main
Street, Hartford, Connecticut 06103, Attention: Corporate Trust Department
and has full corporate power and authority, in its individual capacity or
(assuming the Trust Agreement has been duly authorized, executed and
delivered by the Initial Owner Participant) as the Owner Trustee, as the
case may be, to carry on its business as now conducted, and to execute,
deliver and perform this Agreement and the Operative Agreements to which it
is or is to be a party;
(ii) the execution, delivery and performance by SSB, either in its
individual capacity or as the Owner Trustee, as the case may be, of this
Agreement and the Operative Agreements to which it is or is to be party
have been duly authorized by all necessary corporate action on its part,
and do not contravene its articles of association or by-laws; each of this
Agreement and the other Operative Agreements to which it is or is to be a
party has been duly authorized, and has been duly executed and delivered
or, in the case of the Operative Agreements identified in Section 4.02(c)
hereof, will on the Delivery Date be duly executed and delivered by SSB,
either in its individual capacity or as the Owner Trustee, as the case may
be, and neither the execution and delivery thereof nor SSB's performance
of or compliance with any of the terms and provisions thereof will violate
any Federal or Connecticut law or regulation governing SSB's banking or
trust powers;
(iii) (A) assuming due authorization, execution and delivery by each
other party thereto, each of the Operative Agreements to which it is or is
to be party when duly executed and delivered will, to the extent each such
document is entered into by SSB in its individual capacity, constitute the
legal, valid and binding obligation of SSB in its individual capacity
enforceable against it in such capacity in accordance with its respective
terms, except as such enforceability may be limited by bankruptcy,
insolvency, reorganization or other similar laws or equitable principles of
general application to or affecting the enforcement of creditors' rights
(regardless of whether enforceability is considered in a proceeding in
equity or at law), and the performance by SSB in its individual capacity of
any of its obligations thereunder does not contravene any lease, regulation
or contractual restriction binding on SSB in its individual capacity;
(B) assuming due authorization, execution and delivery by each other
party thereto, each of the Operative Agreements to which it is or is to be
party when duly executed and delivered will, to the extent each such
document is entered into by the Owner Trustee in its trust capacity,
constitute the legal, valid and binding obligation of the Owner Trustee
enforceable against it in such capacity in accordance with its respective
terms, except as such enforceability may be limited by bankruptcy,
insolvency, reorganization or other similar laws or equitable principles of
general application to or affecting the enforcement of creditors' rights
(regardless of whether enforceability is considered in a proceeding in
equity or at law), and the performance by the Owner Trustee of any of its
obligations thereunder does not contravene any lease, regulation or
contractual restriction binding on the Owner Trustee;
(iv) there are no pending or, to its knowledge, threatened actions or
proceedings against SSB before any court or administrative agency which
would materially and adversely affect the ability of SSB, either in its
individual capacity or as the Owner Trustee, as the case may be, to perform
its obligations under the Operative Agreements to which it is or is to be
party;
(v) it shall give the Lessee, the Indenture Trustee and the Owner
Participant at least thirty (30) days' prior written notice in the event of
any change in its chief executive office or name;
(vi) neither the execution and delivery by it, either in its
individual capacity or as the Owner Trustee, as the case may be, of any of
the Operative Agreements to which it is or is to be a party, requires on
the part of SSB in its individual capacity or any of its Affiliates the
consent or approval of or the giving of notice to, the registration with,
or the taking of any other action in respect of, any Federal or Connecticut
governmental authority or agency governing its banking or trust powers; and
(vii) on the Certificate Closing Date, the proceeds arising from the
issuance and sale of the Certificates shall be free of Lessor's Liens
attributable to SSB in its individual capacity and on the Delivery Date the
Owner Trustee shall be holding whatever title to the Aircraft as was
conveyed to it by the Lessee, the Aircraft shall be free of Lessor's Liens
attributable to SSB in its individual capacity and SSB in its individual
capacity is a Citizen of the United States.
(b) Lessor's Liens. SSB, in its individual capacity, further
represents, warrants and covenants that there are no Lessor's Liens
attributable to it in its individual capacity and that there will not be any
such Lessor's Liens on the Certificate Closing Date or the Delivery Date. The
Owner Trustee, in its trust capacity, and at the cost and expense of the
Lessee, covenants that it will in its trust capacity promptly, and in any
event within 30 days after the same shall first become known to it, take such
action as may be necessary to discharge duly any Lessor's Liens attributable
to it in its trust capacity. SSB, in its individual capacity, covenants and
agrees that it will at its own expense take such action as may be necessary to
duly discharge and satisfy in full, promptly, and in any event within 30 days
after the same shall first become known to it, any Lessor's Liens attributable
to it in its individual capacity which may arise at any time after the date of
this Agreement.
(c) Indemnity for Lessor's Liens. SSB, in its individual capacity,
agrees to indemnify and hold harmless the Lessee, the Indenture Trustee, any
Owner Participant and the Pass Through Trustee and the Owner Trustee from and
against any loss, cost, expense or damage which may be suffered by the Lessee,
the Indenture Trustee, any Owner Participant, the Pass Through Trustee or the
Owner Trustee as a result of the failure of SSB to discharge and satisfy any
Lessor's Liens attributable to it in its individual capacity, as described in
Section 7.04(b) hereof.
(e) Actions With Respect to Lessor's Estate, Etc. Neither SSB, in
its individual capacity, nor the Owner Trustee will take any action to subject
the Lessor's Estate or the trust established by the Trust Agreement, as
debtor, to the reorganization or liquidation provisions of the Bankruptcy Code
or any other applicable bankruptcy or insolvency statute.
Section 7.05. Representations, Warranties and Covenants of the
Indenture Trustee. (a) The Indenture Trustee in its individual capacity (other
than as the Pass Through Trustee) represents on the date hereof and as of the
Certificate Closing Date and the Delivery Date as follows:
(i) it is a national banking association duly organized and validly
existing in good standing under the laws of the United States of America
and has the power and authority to enter into and perform its obligations
under the Indenture, this Agreement and the other Operative Agreements to
which it is a party and to authenticate the Certificates to be delivered on
the Certificate Closing Date;
(ii) the Indenture and this Agreement and the other Operative
Agreements to which it is or is to be a party, and the authentication of
the Certificates to be delivered on the Certificate Closing Date, have been
duly authorized by all necessary corporate action on its part, and neither
the execution and delivery thereof nor its performance of any of the terms
and provisions thereof will violate any Federal or Utah law or regulation
relating to its banking or trust powers or contravene or result in any
breach of, or constitute any default under, its articles of association or
by-laws;
(iii) each of the Indenture and this Agreement, and the other
Operative Agreements to which it is or is to be a party, has been duly
executed and delivered or, in the case of the Operative Agreements
identified in Section 4.02(c) hereof, will on the Delivery Date be executed
and delivered by it and, assuming that each such agreement is the legal,
valid and binding obligation of each other party thereto, is (or will be,
as the case may be), the legal, valid and binding obligation of the
Indenture Trustee, enforceable against the Indenture Trustee in accordance
with its terms except as such enforceability may be limited by bankruptcy,
insolvency, reorganization or other similar laws or equitable principles of
general application to or affecting the enforcement of creditors' rights
(regardless of whether enforceability is considered in a proceeding in
equity or at law);
(iv) neither the execution and delivery by it of the Indenture and
this Agreement and the other Operative Agreements to which it is or is to
be a party, nor the performance by it of any of the transactions
contemplated hereby or thereby, requires the consent or approval of, the
giving of notice to, the registration with, or the taking of any other
action in respect of, any Federal or state governmental authority or agency
governing its banking and trust powers; and
(v) on the Certificate Closing Date, the Indenture Trustee holds
the Liquid Collateral on behalf of the Owner Trustee and on the Delivery
Date, the Indenture Trustee will hold the original counterparts of the
Lease and the Lease Supplement.
(b) Indenture Trustee's Liens. The Indenture Trustee, in its
individual capacity, further represents, warrants and covenants that there are
no Indenture Trustee's Liens attributable to it in its individual capacity and
that there will not be any Indenture Trustee's Liens on the Certificate
Closing Date or, as at and following the Delivery Date, the Aircraft. The
Indenture Trustee, in its individual capacity, covenants and agrees that it
will at its own expense take such action as may be necessary to duly discharge
and satisfy in full, promptly, and in any event within 30 days, after the same
shall first become known to it, any Indenture Trustee's Liens.
(c) Indemnity for Indenture Trustee's Liens. The Indenture Trustee,
in its individual capacity, agrees to indemnify and hold harmless the Lessee,
any Owner Participant, the Owner Trustee and the Pass Through Trustee from and
against any loss, cost, expense or damage which may be suffered by the Lessee,
the Indenture Trustee, any Owner Participant, the Owner Trustee or the Pass
Through Trustee as a result of the failure of the Indenture Trustee to
discharge and satisfy any Indenture Trustee's Liens attributable to it in its
individual capacity, as described in Section 7.05(b) hereof.
Section 7.06. Indenture Trustee's Notice of Default. The Indenture
Trustee agrees to give the Owner Participant notice of any Payment Default
promptly upon a Responsible Officer of the Indenture Trustee having actual
knowledge thereof.
Section 7.07. Releases from Indenture. The Indenture Trustee
covenants and agrees, for the benefit of the Lessee and the Owner Participant,
to execute and deliver the instruments of release from the Lien of the
Indenture which it is required to execute and deliver in accordance with the
provisions of Article XIV of the Indenture, and the Owner Participant agrees,
for the benefit of the Lessee, to cause the Owner Trustee to request the
Indenture Trustee to execute and deliver such instruments of release.
Section 7.08. Covenant of Quiet Enjoyment. Each of the Indenture
Trustee, the Pass Through Trustee and the Owner Trustee covenants and agrees
as to itself only that, so long as no Event of Default under the Lease has
occurred and is continuing, neither the Owner Trustee, the Indenture Trustee
or the Pass Through Trustee, as the case may be, nor any Person lawfully
claiming through the Owner Trustee, the Indenture Trustee or the Pass Through
Trustee, as the case may be, shall interfere with the Lessee's right to
quietly enjoy the Aircraft during the Term without hindrance or disturbance by
the Owner Trustee, the Indenture Trustee or the Pass Through Trustee, as the
case may be, provided, however, that the Owner Trustee shall not be liable for
any act or omission of the Indenture Trustee or the Pass Through Trustee or
any other Person claiming through the Indenture Trustee or the Pass Through
Trustee.
Section 7.09. Pass Through Trustee's Representations and Warranties.
The Pass Through Trustee, in its individual capacity (except with respect to
clause (iii) below), represents and warrants as of the date hereof (except as
otherwise provided), as of the Pass Through Closing Date, the Certificate
Closing Date and the Delivery Date that:
(i) it is a national banking association duly organized and validly
existing in good standing under the laws of the United States of America
and has the power and authority to enter into and perform its obligations
under the Pass Through Agreement, the Series Supplements, the Intercreditor
Agreement and this Agreement and to execute and authenticate the Pass
Through Certificates to be delivered on the Pass Through Closing Date;
(ii) the execution, delivery and performance of this Agreement, the
Pass Through Agreement and the Series Supplements and the performance of its
obligations hereunder and thereunder (including the execution and
authentication of the Pass Through Certificates to be delivered on the Pass
Through Closing Date) have been fully authorized by all necessary corporate
action on its part, and, subject to (A) the registration of the issuance
and sale of the Pass Through Certificates under the Securities Act, (B)
compliance with any applicable state securities laws and (C) the
qualification of the Pass Through Agreement under the Trust Indenture Act,
neither the execution and delivery thereof nor its performance of any of
the terms and provisions thereof will violate any Federal or Utah law or
regulation relating to its banking or trust powers or contravene or result
in any breach of, or constitute any default under its articles of
association, or bylaws or the provisions of any indenture, mortgage,
contract or other agreement to which it is a party or by which it or its
properties may be bound or affected; and
(iii) each of this Agreement and the Pass Through Agreement has been,
and as of the Pass Through Closing Date the Series Supplements will be, duly
executed and delivered by it (in its individual and trust capacities) and,
assuming that each such agreement is the legal, valid and binding
obligation of each other party thereto, is or will be, as the case may be,
the legal, valid and binding obligation of the Pass Through Trustee (in its
individual and trust capacities), enforceable in accordance with its
respective terms except as limited by bankruptcy, insolvency, moratorium,
reorganization or other similar laws or equitable principles of general
application to or affecting the enforcement of creditors' rights generally
(regardless of whether such enforceability is considered in a proceeding in
equity or at law).
Section 7.10. Survival of Representations, Warranties and Covenants.
The representations, warranties and covenants of the Owner Trustee (in its
individual or trust capacity), the Pass Through Trustee (in its individual or
trust capacity), the Indenture Trustee (in its individual or trust capacity)
and the Subordination Agent (in its individual or trust capacity) provided for
in this Article 7, and their respective obligations under any and all of them,
shall survive the Closings, the delivery of the Aircraft and the expiration or
other termination of this Agreement, and the other Operative Agreements.
Section 7.11. Lessee's Assumption of the Certificates. (a) Subject
to compliance by the Lessee with all of its obligations under the Operative
Agreements, each of the Owner Participants, the Owner Trustee, the Indenture
Trustee, the Pass Through Trustee and the Lessee covenants and agrees that if
the Lessee elects to terminate the Lease and to purchase the Aircraft pursuant
to Section 4.02(a)(A), (D) or (E) of the Lease, and so long as no Default or
Event of Default shall have occurred and be continuing then, upon compliance
with the applicable provisions of said Section 4.02(a) of the Lease, the Owner
Trustee will transfer to the Lessee, without recourse or warranty (except as
to the absence of Lessor's Liens) but subject to the Lien of the Indenture,
all of the Owner Trustee's right, title and interest in and to the Aircraft,
and if the Lessee, in connection with such purchase, elects pursuant to
Section 4.02(a)(A), (D) or (E) of the Lease to assume the obligations of the
Owner Trustee to the Indenture Trustee and the Holders under the Indenture,
the Certificates and hereunder, then the Owner Trustee shall so notify the
Indenture Trustee (such notice to be given at least 30 and not more than 60
days prior to the effective date of such assumption), and each of the parties
shall execute and deliver appropriate documentation permitting the Lessee to
assume such obligations on the basis of full recourse to the Lessee,
maintaining for the benefit of the Holders the security interest in the
Aircraft created by the Indenture, and upon compliance with the provisions of
this Section 7.11, such documentation shall become effective and the Owner
Participants and the Owner Trustee shall be released from all obligations in
respect of the Certificates, the Indenture, this Agreement and all other
Operative Agreements, except any obligations which shall have arisen (or with
respect to events which shall have occurred) prior to such assumption, and
take all such other actions, at the Lessee's expense, as are reasonably
necessary to permit such assumption by the Lessee.
(b) In connection with such assumption:
(i) the Lessee shall execute and deliver an instrument satisfactory
in form and substance to the Indenture Trustee (A) pursuant to which the
Lessee irrevocably and unconditionally assumes and undertakes, with full
recourse to the Lessee, to pay, satisfy and discharge when and as due (at
the stated maturity thereof, by acceleration or otherwise) the principal
of, Make-Whole Premium, if any, interest and all other sums owing on all
Outstanding Certificates (or on the Lessee's substituted obligations) in
accordance with their terms and to punctually perform and observe all of
the covenants and obligations hereunder and under the Indenture and the
Certificates (as the same may be amended in connection with such
assumption) to be performed or observed by the Owner Trustee and (B) which
contains amendments to the Indenture, in form and substance satisfactory to
the Indenture Trustee and the Holders, that incorporate therein such
provisions from the Lease and this Agreement as may be appropriate,
including, without limitation, events of default substantially identical in
scope and effect to those set forth in the Lease and covenants
substantially identical to the covenants of the Lessee hereunder and under
the Lease;
(ii) the instrument referred to in paragraph (i) of this Section
7.11(b), any Uniform Commercial Code financing statements relating thereto,
and any other documents which shall be necessary (or reasonably requested
by the Indenture Trustee) to establish the Lessee's title to and interest
in the Aircraft or to reflect the substitution of the Lessee for the Owner
Trustee under the Operative Agreements or to continue the perfection of the
security interests in the Aircraft and the other rights, Property and
interests included in the Trust Indenture Estate for the benefit of the
Holders (or the Lessee's substituted obligations) shall be filed in such
form, manner and places as are necessary or, in the reasonable opinion of
the Indenture Trustee, advisable for such purpose;
(iii) the Indenture Trustee shall have received an insurance report
dated the effective date of such assumption of an independent insurance
broker and certificates of insurance, each in form and substance
satisfactory to the Indenture Trustee, as to the due compliance as of the
effective date of such assumption with the terms of Article 13 of the Lease
(as it relates to the Indenture Trustee) relating to the insurance with
respect to the Aircraft;
(iv) the Indenture Trustee shall have received evidence that as of
the effectiveness of the assignment on the date of such assumption the
Aircraft is free and clear of all Liens other than the Lien of the
Indenture and other Permitted Liens;
(v) the Indenture Trustee shall have received a certificate from the
Lessee that no Event of Default shall have occurred and be continuing as of
the effective date of such assumption; and
(vi) the Indenture Trustee shall have received (A) from counsel for
the Lessee (who may be the Lessee's General Counsel) a legal opinion, in
form and substance satisfactory to the Indenture Trustee (w) with respect
to the compliance of the assumption contemplated hereby with the terms,
provisions and conditions hereof, (x) with respect to the due
authorization, execution, delivery, validity and enforceability of the
instrument referred to in paragraph (i) of this Section 7.11(b), (y) with
respect to the continued perfection of the first and prior Lien and security
interest in the Aircraft for the benefit of the Holders of the Certificates
(or the Lessee's substituted obligations) referred to in paragraph (ii) of
this Section 7.11(b) and (z) with respect to the continued availability of
the benefits of Section 1110 of the Bankruptcy Code to the Indenture
Trustee for the benefit of the Holders with respect to the Aircraft after
giving effect to such assumption, (B) from counsel to the Indenture Trustee
and Special Aviation Counsel, a legal opinion comparable to the respective
opinions delivered on the Delivery Date with such changes therein as may be
appropriate in light of such assumption, and (C) in the case of each opinion
described in clause (A) or (B) above, covering such additional matters as
the Indenture Trustee shall reasonably request.
(c) The Lessee shall pay all reasonable expenses (including
reasonable fees and expenses of counsel) of the Indenture Trustee, the Owner
Trustee, the Pass Through Trustee and the Owner Participants in connection
with such assumption.
Section 7.12. Indebtedness of Owner Trustee. So long as the
Indenture is in effect, the Owner Trustee, not in its individual capacity, but
solely as trustee under the Trust Agreement, shall not incur any indebtedness
for borrowed money except as expressly contemplated herein or in any other
Operative Agreement (excluding the Tax Indemnity Agreement) and shall not
engage in any business or other activity other than the transactions
contemplated herein or in any other Operative Agreement (excluding the Tax
Indemnity Agreement) and all necessary or appropriate activity related thereto.
Section 7.13. Reserved.
Section 7.14. Subordination Agent's Representations, Warranties and
Covenants. (a) Representations and Warranties. The Subordination Agent
represents
Subordination Agent represents and warrants as of the date hereof (except as
otherwise provided), as of the Pass Through Closing Date, the Certificate
Closing Date and the Delivery Date that:
(i) it is a national banking association duly organized and validly
existing in good standing under the laws of the United States of America
and has the corporate power and authority to enter into and perform its
obligations under this Agreement, the Liquidity Facilities and the
Intercreditor Agreement;
(ii) the execution, delivery and performance of this Agreement, each
of the Liquidity Facilities and the Intercreditor Agreement and the
performance of its obligations hereunder and thereunder have been fully
authorized by all necessary corporate action on its part, and, neither the
execution and delivery thereof nor its performance of any of the terms and
provisions thereof will violate any Federal or Utah law or regulation
relating to its banking or trust powers or contravene or result in any
breach of, or constitute any default under its articles of association, or
bylaws or the provisions of any indenture, mortgage, contract or other
agreement to which it is a party or by which it or its properties may be
bound or affected;
(iii) each of this Agreement, the Liquidity Facilities and the
Intercreditor Agreement has been duly executed and delivered by it and,
assuming that each such agreement is the legal, valid and binding
obligation of each other party thereto, is or will be, as the case may be,
the legal, valid and binding obligation of the Subordination Agent,
enforceable in accordance with its respective terms except as limited by
bankruptcy, insolvency, moratorium, reorganization or other similar laws or
equitable principles of general application to or affecting the enforcement
of creditors' rights generally (regardless of whether such enforceability
is considered in a proceeding in equity or at law);
(iv) there are no Taxes payable by the Subordination Agent imposed by
the State of Utah or any political subdivision or taxing authority thereof
in connection with the execution, delivery and performance by the
Subordination Agent of this Agreement, any of the Liquidity Facilities or
the Intercreditor Agreement (other than franchise or other taxes based on
or measured by any fees or compensation received by the Subordination Agent
for services rendered in connection with the transactions contemplated by
the Intercreditor Agreement or any of the Liquidity Facilities), and there
are no Taxes payable by the Subordination Agent imposed by the State of
Utah or any political subdivision thereof in connection with the
acquisition, possession or ownership by the Subordination Agent of any of
the Certificates other than franchise or other taxes based on or measured
by any fees or compensation received by the Subordination Agent for
services rendered in connection with the transactions contemplated by the
Intercreditor Agreement or any of the Liquidity Facilities);
(v) there are no pending or threatened actions or proceedings
against the Subordination Agent before any court or administrative agency
which individually or in the aggregate, if determined adversely to it,
would materially adversely affect the ability of the Subordination Agent to
perform its obligations under this Agreement, the Intercreditor Agreement
or any Liquidity Facility;
(vi) the Subordination Agent has not directly or indirectly offered
any Certificate for sale to any Person or solicited any offer to acquire
any Certificates from any Person, nor has the Subordination Agent
authorized anyone to act on its behalf to offer directly or indirectly any
Certificate for sale to any Person, or to solicit any offer to acquire any
Certificate from any Person; and the Subordination Agent is not in default
under any Liquidity Facility; and
(vii) the Subordination Agent is not directly or indirectly
controlling, controlled by or under common control with the Owner Trustee,
any Underwriter or the Lessee.
(b) Covenants. (i) The Subordination Agent agrees not to amend any
Liquidity Facility without the consent of the Lessee (so long as no Event of
Default shall have occurred and be continuing) and of the Owner Participant
(such consents not to be unreasonably withheld).
(ii) In connection with the deposit in the applicable Cash Account of
amounts drawn pursuant to any Downgrade Drawing under a Liquidity Facility, the
Subordination Agent agrees, so long as no Event of Default shall have occurred
and be continuing, to pay to the Lessee promptly following each Regular
Distribution Date any Investment Earnings on the amount so deposited which
remain after application of such Investment Earnings pursuant to Section 2.06
of such Liquidity Facility to the interest payable on such Downgrade Drawing
under Section 3.07 of such Liquidity Facility. Capitalized terms used in this
Section shall have the meanings specified in the Intercreditor Agreement.
ARTICLE 8
TAXES
Section 8.01. Lessee's Obligation to Pay Taxes. (a) Generally. The
Lessee agrees promptly to pay when due, and to indemnify and hold each
Indemnitee harmless from all license, recording, documentary, registration and
other fees and all taxes (including, without limitation, income, gross
receipts, sales, rental, use, value added, property (tangible and intangible),
ad valorem, excise and stamp taxes), fees, levies, imposts, recording duties,
duties, charges, assessments or withholdings of any nature whatsoever,
together with any assessments, penalties, fines, additions to tax or interest
thereon (individually, a "Tax," and collectively called "Taxes"), however
imposed or asserted (whether imposed upon any Indemnitee, the Lessee, all or
any part of the Aircraft, Airframe, any Engine or any Part or the Lessor's
Estate, the Trust Indenture Estate, Rent, the Certificates or otherwise in
connection therewith), by any Federal, state or local government or taxing
authority in the United States, or by any government or taxing authority of a
foreign country or of any political subdivision or taxing authority thereof or
by a territory or possession of the United States or an international taxing
authority relating to or measured by:
(i) the construction, mortgaging, financing, refinancing, purchase,
acceptance, rejection, delivery, nondelivery, transport, location, ownership,
registration, reregistration, deregistration, insuring, assembly, possession,
repossession, operation, use, non-use, condition, maintenance, repair,
improvement, conversion, sale, return, abandonment, preparation, installation,
storage, redelivery, replacement, manufacture, leasing, subleasing,
sub-subleasing, modification, alteration, rebuilding, importation, transfer of
title, transfer of registration, exportation or other application or
disposition of, or the imposition of any Lien (or the incurrence of any
liability to refund or pay over any amount as a result of any Lien) on, the
Aircraft, the Airframe, any Engine or any Part or any interest therein;
(ii) amounts payable under the Operative Agreements;
(iii) the Property, or the income or other proceeds received with
respect to the Property attributable to the transactions contemplated by
the Operative Agreements, held by the Owner Trustee under the Trust
Agreement or after an Event of Default under the Lease, or by the Indenture
Trustee under the Indenture;
(iv) otherwise with respect to any Operative Agreement, any interest
therein or by reason of the transactions described in or contemplated by the
Operative Agreements;
(v) the principal or interest or other amounts payable with respect
to the Certificates;
(vi) the Pass Through Certificates or the Certificates or the
issuance, sale, acquisition, reoptimization or refinancing thereof or the
beneficial interests in the Trust Estate or the Trust Indenture Estate or
the creation thereof under the Trust Agreement or the Indenture, or the
security interest created or perfected thereby or by any filing thereof;
(vii) [reserved];
(viii) the Aircraft, the Airframe, any Engine or any Part; or
(ix) the rentals (including Basic Rent, Renewal Rent and
Supplemental Rent), receipts or earnings arising from the Operative
Agreements.
(b) Exceptions. The indemnity provided for in Section 8.01(a) shall
not extend to any of the following:
(i) With respect to an Indemnitee, Taxes based upon, measured by or
with respect to the net or gross income, items of tax preference or minimum
tax or excess profits, receipts, value-added taxes, capital, franchise, net
worth (whether denominated income, excise, capital stock, or doing
business taxes) or other similarly-based taxes (other than sales, use,
transfer, rental, ad valorem, stamp, property, or similar taxes) ("Income
Taxes"), provided, however, that this clause (i) shall not exclude from the
indemnity described in Section 8.01(a) above any such Income Taxes to the
extent such taxes are imposed by any jurisdiction in which the Indemnitee
would not be subject to such taxes but for, or would be subject to such
taxes solely as a result of, (x) the operation, registration, location,
presence, or use of the Aircraft, Airframe, any Engine or any Part thereof,
in such jurisdiction or (y) the place of incorporation or principal office
or the activities of the Lessee or any sublessee in such jurisdiction (it
being understood that (A) any such indemnity would be payable only to the
extent of the net harm incurred by the Indemnitee from such Income Taxes,
taking into account any incremental current Tax benefit in another tax
jurisdiction resulting from payment of such Income Taxes and (B) this
sentence would require indemnification in a jurisdiction in which the
Indemnitee is already subject to an Income Tax (an "Existing Income Tax")
only if an event set forth in Clause (x) or (y) of this sentence causes the
Indemnitee to be subject to an Income Tax in that jurisdiction (a "New
Income Tax") other than an Existing Income Tax, and such New Income Tax
would have been imposed even if the activities contemplated by the
Operative Agreements were the Indemnitee's sole nexus to the jurisdiction);
provided, further, that the provisions of this paragraph (b)(i) relating to
Income Taxes shall not exclude from the indemnity described in Section
8.01(a) hereof any Income Taxes for which the Lessee would be required to
indemnify an Indemnitee (x) so that any payment under the Operative
Agreements, otherwise required to be made on an After-Tax Basis, is made on
an After-Tax Basis or (y) pursuant to the last sentence of Section 8.02,
8.05, 9.02 or 9.05 of this Agreement;
(ii) [Reserved];
(iii) Taxes imposed with respect to the Aircraft and arising out of or
measured by acts, omissions, events or periods (or any combination of the
foregoing) which occur after the later of (A) the payment in full of all
amounts payable by the Lessee pursuant to and in accordance with the
Operative Agreements, or the earlier discharge in full of the Lessee's
payment obligations under and in accordance with the Lease and the other
Operative Agreements, and (B) the earliest of (x) the expiration of the
Term of the Lease and return of the Aircraft in accordance with Article 12
of the Lease, (y) the termination of the Lease in accordance with the
applicable provisions of the Lease and return of the Aircraft in accordance
with the Lease, or (z) the termination of the Lease in accordance with the
applicable provisions of the Lease and the transfer of all right, title and
interest in the Aircraft to the Lessee pursuant to its exercise of any of
its purchase options set forth in Section 4.02(a) of the Lease, provided
that this exclusion (iii) shall not apply in respect of any payment made
after the dates set forth in clauses (A) and (B) above unless such payment
is made with respect to any event or circumstance occurring on, with or
prior to such return or transfer or period prior to such return or
transfer, or Taxes incurred in connection with the exercise of any remedies
pursuant to Article 17 of the Lease following the occurrence of an Event
of Default;
(iv) As to the Owner Trustee, Taxes imposed against the Owner Trustee
upon or with respect to any fees for services rendered in its capacity as
Owner Trustee under the Trust Agreement or, as to the Indenture Trustee,
Taxes imposed against the Indenture Trustee upon or with respect to any
fees received by it for services rendered in its capacity as Indenture
Trustee under the Indenture;
(v) Taxes imposed on an Indemnitee that would not have been imposed
but for the willful misconduct or gross negligence of such Indemnitee
(other than gross negligence or willful misconduct not actually committed
by but instead imputed to such Indemnitee by reason of such Indemnitee's
participation in the transactions contemplated by the Operative Agreements)
or the breach by such Indemnitee of: (i) in the case of an Indemnitee other
than the Owner Participant, any representation, warranty or covenant
contained in the Operative Agreements or any document delivered in
connection therewith and (ii) in the case of the Owner Participant, the
representations or covenants in Sections 7.02(a), (c); 7.03(a)(i), (ii),
(iii), (iv), (vii), (ix); and 7.03(b), (c), (d), (e) of this Agreement (in
either case unless attributable to a breach of representation, warranty or
covenant of the Lessee);
(vi) Taxes imposed on, and not collected by withholding from
payments of Rent, the Owner Trustee or the Owner Participant or any
successor, assign or Affiliate thereof which became payable by reason of
any voluntary or involuntary transfer or disposition by such Indemnitee
subsequent to the Delivery Date, including revocation of the Trust, of any
interest in some or all of the Aircraft, Airframe, Engines or Parts thereof
or its interest in the Lessor's Estate or a disposition in connection with
a bankruptcy or similar proceedings involving either the Lessor or the
Owner Participant other than (A) transfers resulting from a loss,
substitution or modification of the Aircraft, Engines or any Part, (B) any
transfer of the Aircraft, Engines or any Part (in each case other than at
Fair Market Value) to the Lessee or other person in possession thereof, (C)
transfers attributable to an Event of Default or (D) a transfer pursuant to
the Lessee's exercise of its rights under Section 10.01 of the Lease; the
parties agree to cooperate to minimize any such Taxes covered by this
provision;
(vii) Taxes imposed on the Owner Participant for which the Lessee is
obligated to indemnify the Owner Participant pursuant to the Tax Indemnity
Agreement;
(viii) Taxes imposed on a successor, assign or other transferee of the
Owner Participant or the Owner Trustee that is not a U.S. Person or of any
other original Indemnitee (including, without limitation, a transferee
which is a new lending office of an original Indemnitee) which on the
Certificate Closing Date is an Indemnitee (for purposes of this clause
(viii), an "original Indemnitee") or such original Indemnitee to the extent
that such Taxes exceed the amount of Taxes that would have been imposed and
would have been indemnifiable pursuant to Section 8.01(a) hereof had there
not been a succession, assignment or other transfer by such original
Indemnitee of any such interest of such Indemnitee in the Aircraft or any
Part, any interest in or under any Operative Agreement, or any proceeds
thereunder (it being understood that for purposes of determining the amount
of indemnification that would have been due to such original Indemnitee
with respect to a net income Tax, it shall be assumed that such original
Indemnitee would be subject to taxation on its income at the highest
marginal statutory rate applicable to it), provided, however, that the
exclusion provided by this clause (viii) shall not apply in the case of a
succession, transfer or disposition (A) while an Event of Default under the
Lease has occurred and is continuing at the time of such transfer or
disposition, (B) to the extent necessary to make payments with respect to
such Taxes on an After-Tax Basis, (C) to the extent such Taxes are directly
attributable to the failure of the Lessee to take administrative actions as
have been reasonably requested of it in writing in a timely manner and
which will result in no after-tax cost or expense to the Lessee or (D) in
the case of the Owner Participant or the Lessor, to any Tax other than an
Income Tax;
(ix) [Reserved];
(x) Any Taxes which have been included in the Purchase Price and
which have been paid to the applicable taxing authorities;
(xi) Any Taxes which would not have been imposed but for a Lessor's
Lien or an Indenture Trustee's Lien;
(xii) Taxes imposed on the Owner Participant or any person who is a
"disqualified person", within the meaning of Section 4975(e)(2) of the
Code, or a "party in interest", within the meaning of Section 3(14) of
ERISA, by virtue of such person's relationship to such Owner Participant as
the result of any prohibited transaction, within the meaning of Section 406
of ERISA and Section 4975(c)(1) of the Code, occurring with respect to the
purchase or holding of any Loan Certificate (A) in connection with which
purchase or holding such Owner Participant or any Affiliate thereof is
acting as the investment manager, advisor or discretionary trustee and is
making or directing such purchase or holding (other than in the capacity of
a custodian, directed trustee or other similar nondiscretionary capacity),
or (B) by an employee benefit plan, within the meaning of Section 3(3) of
ERISA, or a plan subject to Section 4975 of the Code with respect to which
such Owner Participant (or any Affiliate thereof) is the "plan sponsor"
within the meaning of Section 3(16)(B) of ERISA; and
(xiii) Taxes imposed on the Lessor or on any Owner Participant by any
jurisdiction that would have been imposed on the Lessor or such Owner
Participant for activities in such jurisdiction unrelated to the
transactions contemplated by the Operative Agreements to the extent imposed
on such unrelated activities.
(c) Withholding. The Pass Through Trustee shall withhold any Taxes
required to be withheld on payments to any holder of a Pass Through
Certificate who is a Non-U.S. Person except to the extent that such a holder
of a Pass Through Certificate has furnished evidence to the Pass Through
Trustee sufficient under applicable law to entitle such holder of a Pass
Through Certificate to any exemption from withholding on interest claimed by
such holder of a Pass Through Certificate. The Indenture Trustee shall
withhold any Taxes required to be withheld on any payment to a Holder pursuant
to Section 5.09 of the Indenture. If the Indenture Trustee or the Pass
Through Trustee fails to withhold a Tax required to be withheld with respect
to any Holder of a Certificate or any holder of a Pass Through Certificate or
any claim is otherwise asserted by a taxing authority against the Owner
Trustee or Owner Participant for or on account of any amount required to be
withheld from a payment in respect of a Certificate, the Lessee will indemnify
(after taking into account any payments made by a Holder to or for the benefit
of the Owner Participant or the Owner Trustee pursuant to the preceding
sentence) the Owner Trustee and the Owner Participant (without regard to the
exclusions set forth in Section 8.01(b) hereof) on an After-Tax Basis against
any Taxes required to be withheld and any interest, penalties and additions to
tax with respect thereto, along with any other costs (including attorneys'
fees) incurred in connection with any such claim. The Indenture Trustee or
the Pass Through Trustee, as the case may be, in its individual capacity (and
without recourse to the Trust Indenture Estate), shall indemnify the Lessee on
an After-Tax Basis for any payment the Lessee shall have made pursuant to the
preceding sentence.
Section 8.02. After-Tax Basis. The amount which the Lessee shall be
required to pay with respect to any Tax indemnified against under Section 8.01
shall be an amount sufficient to restore the Indemnitee, on an After-Tax
Basis, to the same position such party would have been in had such Tax not
been incurred, provided that the calculation of any additional amounts owing
to any Indemnitee as a result of the Lessee's obligation to indemnify on an
After-Tax Basis shall be made without regard to the exclusions set forth in
Section 8.01(b). If any Indemnitee actually realizes a tax benefit by reason
of the payment of any Tax paid or indemnified against by the Lessee, such
Indemnitee shall promptly pay to the Lessee, to the extent such tax benefit was
not previously taken into account in computing such payment, but not before the
Lessee shall have made all payments then due to such Indemnitee under this
Agreement, the Tax Indemnity Agreement and any other Operative Agreement, an
amount equal to the lesser of (x) the sum of such tax benefit plus any other
tax benefit actually realized by such Indemnitee that would not have been
realized but for any payment made by such Indemnitee pursuant to this sentence
and not already paid to the Lessee, and (y) the amount of the payment made
under Section 8.01 hereof and this Section 8.02 by the Lessee to such
Indemnitee plus the amount of any other payments by the Lessee to such
Indemnitee theretofore required to be made under this Section 8.02 and
Sections 8.01 and 8.05 hereof (and the excess, if any, of the amount described
in clause (x) above over the amount described in clause (y) above shall be
carried forward and applied to reduce pro tanto any subsequent obligations of
the Lessee to make payments to such Indemnitee pursuant to Section 8.01
hereof); provided, however, that notwithstanding the foregoing portions of
this sentence, such Indemnitee shall not be obligated to make any payment to
the Lessee pursuant to this sentence as long as an Event of Default shall have
occurred and be continuing under the Lease. The Lessee shall reimburse on an
After-Tax Basis such Indemnitee (and without regard to Section 8.01(b) hereof,
except for clause (v) thereof) for any payment of a tax benefit pursuant to
the preceding sentence (or a tax benefit otherwise taken into account in
calculating the Lessee's indemnity obligation hereunder) to the extent that
such tax benefit is subsequently disallowed or reduced (including the
expiration of any tax credit carryovers or carrybacks of such Indemnitee that
would not otherwise have expired).
Section 8.03. Time of Payment. Any amount payable to an Indemnitee
pursuant to this Article 8 shall be paid promptly, but in any event within 30
days after receipt of a written demand therefor from such Indemnitee
accompanied by a written statement describing in reasonable detail the basis
for such indemnity and the computation of the amount so payable, provided that
in the case of amounts which are being contested by the Lessee in good faith
or by the Indemnitee in either case pursuant to Section 8.04 hereof, such
amount shall be payable within 30 days after the time such contest is finally
resolved.
Section 8.04. Contests. If a written claim is made against any
Indemnitee for Taxes with respect to which the Lessee is liable for a payment
or indemnity hereunder, such Indemnitee shall promptly (but in any event
within 30 days of receipt thereof) give the Lessee notice in writing of such
claim and shall furnish the Lessee with copies of any written requests for
information sent to such Indemnitee (and not the Lessee) from any taxing
authority to the extent relating to such Taxes with respect to which the
Lessee may be required to indemnify hereunder and with respect to which it
would be necessary or beneficial to have information provided by the Lessee;
provided, however, that the failure of an Indemnitee to give such notice or
furnish such copy shall not terminate any of the rights of such Indemnitee
under this Article 8, except to the extent that the Lessee's contest rights
have been materially and adversely impaired by the failure to provide such
notice or copy. The Lessee may, at its option, contest in its own name or, if
required by law, require the Indemnitee to contest in good faith, with due
diligence and at the Lessee's expense, if timely requested in writing by the
Lessee, the validity, applicability or amount of such Taxes by:
(i) resisting payment thereof if lawful and practicable or not
paying the same except under protest if protest is necessary and proper in
each case so long as non-payment will not result in a material risk of the
sale, forfeiture or loss of, or the creation of a Lien other than a
Lessor's Lien on the Aircraft, Airframe or any Engine or any risk of
criminal liability; or
(ii) if the payment be made, using reasonable efforts to obtain a
refund thereof in appropriate administrative and judicial proceedings.
Notwithstanding the foregoing, the Lessee shall not be permitted or entitled
to contest any such Tax in its own name unless the Tax is reflected in a
report or a return of the Lessee or raised in an audit or other proceeding of
the Lessee and the Lessee is allowed to directly contest such Tax under
applicable law of the taxing jurisdiction provided, that if the Lessee is so
permitted under applicable law to contest a Tax asserted against the Lessee
and the same or similar Tax is also asserted against the Indemnitee, each of
the Lessee and such Indemnitee shall conduct its contest in its own name and
the Lessee and such Indemnitee will cooperate in a reasonable manner with
respect to the respective contests of such Tax.
If the Indemnitee, after reasonable discussion with the Lessee and
consideration in good faith of any suggestion made by the Lessee as to the
method of pursuing such contest, elects to conduct the contest, such
Indemnitee shall control the contest and shall determine the manner in which
to contest such Taxes and shall periodically or upon the Lessee's request
advise the Lessee of the progress of such contest; provided, however, that the
Lessee shall have the right to be consulted in good faith with respect to any
contest of claims subject to indemnification hereunder, including governmental
and judicial conferences and the right to be consulted in good faith regarding
the relevant portions of all related submissions to any governmental or other
authority, provided, however, that the Lessee shall be permitted to
participate in any such contest only (x) with respect to issues that can be
separated on audit from any Taxes for which the Lessee is not required to
indemnify the Indemnitee hereunder, and (y) if the Indemnitee shall have
determined that in its judgment, exercised in its sole discretion, neither
such participation nor the separation of issues will adversely affect the
Indemnitee. The Indemnitee will not settle a contest that results in a final
determination without consent of the Lessee, unless the Indemnitee waives its
right to indemnification with respect to such contest and any related contest.
Notwithstanding the preceding sentences of this Section 8.04, such Indemnitee
shall not be required to take or continue any action unless the Lessee shall
have (i) agreed in writing to pay and shall pay the Indemnitee on a current
basis and on an After-Tax Basis the after-tax cost of all reasonable fees and
expenses (including reasonable attorneys' fees and accountants' fees) which
such Indemnitee may incur as a result of contesting such Taxes, (ii) made all
payments and indemnities (other than contested payments and indemnities) then
due to the Indemnitee hereunder or with respect to any of the transactions
contemplated by or under the Operative Agreements and (iii) acknowledged in
writing the Lessee's obligation to such Indemnitee pursuant to this Agreement
to the extent that the contest is not successful, unless it is reasonably
clear from the resolution of the contest that an exclusion set forth in
Section 8.01(b) hereof applies. In no event shall such Indemnitee be required
or the Lessee be permitted to contest pursuant to this Section 8.04 the
imposition of any Tax for which the Lessee is obligated to indemnify any
Indemnitee hereunder unless (i) such Indemnitee shall have received, at the
Lessee's expense, an opinion of its tax counsel, such counsel to be reasonably
satisfactory to the Lessee ("Tax Counsel"), to the effect that there exists a
reasonable basis for contesting such claim, (ii) such Indemnitee (and, if such
Indemnitee is not the Owner Participant, the Owner Participant and such
Indemnitee) shall have determined that such contest will not result in any
material risk of loss, sale or forfeiture of, or the creation of a Lien (other
than Lessor's Liens) on, the Aircraft or any part thereof or interest thereon
or in a risk of criminal liability, or adversely affect the Trust Indenture
Estate, (iii) if a Payment Default, Bankruptcy Default or an Event of Default
shall have occurred and be continuing, the Lessee shall have provided security
for its obligations hereunder reasonably satisfactory to the Indemnitee, (iv)
if such contest shall be conducted in a manner requiring payment of the claim
in advance, the Lessee shall have advanced sufficient funds, on an interest
free basis, to make the payment required, and agreed to indemnify the
Indemnitee against any additional net adverse tax consequences on an After-Tax
Basis to such Indemnitee of such advance, (v) the issue shall not be the same
as an issue previously contested hereunder and decided adversely, unless the
Indemnitee shall have received at the Lessee's sole expense, a written
opinion, in form and substance reasonably satisfactory to such Indemnitee, of
Tax Counsel to the effect that the applicable circumstances or law has changed
and that in light thereof, there is substantial authority for contesting such
claim and (vi) the amount of the indemnity payments the Lessee would be
required to make with respect to such adjustment, when aggregated with similar
adjustments that could be raised in other taxable years of such Indemnitee
exceeds $50,000; provided, that in the event that such Indemnitee is not
required under this paragraph to contest any Tax liability for which the
Lessee is obligated to indemnify any Indemnitee, the Lessee may contest such
Tax liability in the name of the Lessee, if such contest by the Lessee (x) is
permitted by law, (y) is conducted entirely at the expense of Lessee and in a
manner that will not result in any unindemnified cost, Tax or risk to the
Indemnitee and (z) satisfies the condition of clause (ii) of this sentence.
The Lessee may appeal or require the Indemnitee to appeal any judicial
decision provided the foregoing requirements of this Section 8.04 are met and
the Indemnitee shall have received, at the Lessee's expense, an opinion of Tax
Counsel, to the effect that there is substantial authority for such appeal.
Nothing contained in this Section 8.04 shall require any Indemnitee to
contest or continue to contest, or permit Lessee to contest, a claim which such
Indemnitee would otherwise be required to contest pursuant to this Section
8.04, if such Indemnitee shall waive payment by Lessee of any amount that
might otherwise be payable by Lessee under this Article 8 in connection with
such claim.
Section 8.05. Refunds. Upon receipt by an Indemnitee of a refund of
all or any part of any Taxes which the Lessee shall have paid for such
Indemnitee or for which the Lessee shall have reimbursed or indemnified such
Indemnitee, and provided there shall not have occurred and be continuing any
Payment Default, Bankruptcy Default or Event of Default by the Lessee
hereunder or under the Lease (in which case payment shall not be made to the
Lessee until such Payment Default, Bankruptcy Default or Event of Default
shall have been cured), such Indemnitee shall pay to the Lessee an amount
equal to the amount of such refund less (x) any expenses not previously
reimbursed, (y) all payments then due to such Indemnitee under this Article
8 and (z) Taxes imposed with respect to the accrual or receipt thereof,
including interest received attributable thereto, plus any tax benefit
actually realized by such Indemnitee as a result of any payment by such
Indemnitee made pursuant to this sentence; provided, however, that such amount
shall not be payable (a) before such time as the Lessee shall have made all
payments or indemnities then due and payable to such Indemnitee under this
Article 8 and (b) to the extent that the amount of such payment would exceed
(i) the amount of all prior payments by the Lessee to such Indemnitee pursuant
to this Article 8 less (ii) the amount of all prior payments by such
Indemnitee to the Lessee pursuant to this Article 8.
Any subsequent loss of such refund or tax benefit shall be treated as
a Tax subject to indemnification under the provisions of this Article 8 (in
the case of any such tax benefit, without regard to Section 8.01(b) hereof).
Section 8.06. Lessee's Reports. In case any report or return is
required to be made with respect to any Taxes against which the Lessee is or
may be obligated to indemnify the Indemnitees under this Article 8, the Lessee
shall make such report or return, except for any such report or return that
the Indemnitee has notified the Lessee that it intends to file, in such manner
as will show the ownership of the Aircraft in the Owner Trustee and shall send
a copy of the applicable portions of such report or return to the Indemnitee
and the Owner Trustee or will notify the Indemnitee of such requirement and
make such report or return in such manner as shall be satisfactory to such
Indemnitee and the Owner Trustee. The Lessee will provide such information
reasonably available to the Lessee as the Indemnitee may reasonably require
from the Lessee to enable the Indemnitee to fulfill its tax filing
requirements with respect to the transactions contemplated by the Operative
Agreements (without duplication of the requirements of Section 3 of the Tax
Indemnity Agreement) and any audit information request arising from any such
filing. The Indemnitee will provide such information reasonably available to
it as the Lessee may reasonably require from such Indemnitee to enable the
Lessee to fulfill its tax filing requirements with respect to the transactions
contemplated by the Operative Agreements and any audit information request
arising from such filing; provided that in no event shall any Indemnitee be
required to provide copies of any of its tax returns or other confidential
information. The Lessee shall hold the Indemnitee harmless on an After-Tax
Basis from and against any liabilities, including penalties, additions to tax,
fines and interest, imposed upon or incurred by such Indemnitee to the extent
directly attributable to any insufficiency or inaccuracy in any return,
statement, or report prepared by the Lessee or information supplied by the
Lessee, or directly attributable to the Lessee's failure to supply reasonably
available information to such Indemnitee as required by this Section 8.06.
Section 8.07. Survival of Obligations. The representations,
warranties, indemnities and agreements of the Lessee provided for in this
Article 8 and the Lessee's obligations under any and all of them shall survive
the expiration or other termination of the Operative Agreements.
Section 8.08. Payment of Taxes. With respect to any Tax otherwise
indemnifiable hereunder by the Lessee and applicable to the Aircraft,
Airframe, any Engine or Parts, to the extent permitted by the applicable
federal, state, local or foreign law, the Lessee shall pay such tax directly
to the relevant Taxing authority and file any returns or reports required with
respect thereto to the extent legally entitled to do so in its own name;
provided, however, that the Lessee shall not make any statements or take any
action which would indicate that the Lessee or any Person other than the Owner
Trustee or Owner Participant is the owner of the Aircraft, the Airframe, any
Engine or any Part or which would otherwise be inconsistent with the terms of
the Lease or the Tax Indemnity Agreement and the position thereunder of the
Owner Trustee and the Owner Participant. Copies of such returns or reports,
together with evidence of payment of any tax due, shall be sent by the Lessee
to the Owner Participant within thirty (30) days after the date of each
payment by the Lessee of any Tax.
Section 8.09. Reimbursements by Indemnitees Generally. To the
extent the Lessee is required to pay or withhold any Tax imposed on or with
respect to an Indemnitee in respect of the transactions contemplated by the
Operative Agreements, which Tax is not otherwise the responsibility of the
Lessee under the Operative Agreements, or any other written agreements between
the Lessee and such Indemnitee, then such Indemnitee shall pay to the Lessee
within 30 days of the Lessee's demand therefor an amount which equals the
amount actually paid by the Lessee with respect to such Taxes.
ARTICLE 9
GENERAL INDEMNITY
Section 9.01. Generally. (a) The Lessee agrees to indemnify each
Indemnitee against and agrees to protect, defend, save and keep harmless each
Indemnitee from any and all liabilities, obligations, losses, damages
(including if, as a result of an Indenture Event of Default described in
Section 7.01(a)(i) of the Indenture, the Indenture Trustee shall have sold all
or any portion of the Indenture Estate and the proceeds thereof were less than
an amount equal to accrued and unpaid Basic Rent on the date of sale plus the
Stipulated Loss Value as of such date, damages equal to such shortfall
together with interest thereon to the extent permitted by law at the Debt Rate
until such shortfall is paid in full), penalties, claims, actions, suits,
costs, disbursements and expenses (including legal fees and expenses and all
costs and expenses relating to amendments, supplements, adjustments, consents,
refinancings and waivers under the Operative Agreements except as otherwise
provided in Section 10.01(c)(i)) of every kind and nature (whether or not any
of the transactions contemplated by this Agreement are consummated)
(individually, an "Expense," collectively, "Expenses"), which may be imposed
on, incurred or suffered by or asserted against any Indemnitee, in any way
relating to, based on or arising out of:
(i) this Agreement, the Lease, the Indenture, the Trust Agreement,
the Intercreditor Agreement, the Liquidity Facilities, the Pass Through
Agreement, the Bills of Sale or any other Operative Agreement or any other
document entered into in connection herewith or any sublease or transfer or
any transactions contemplated hereby or thereby;
(ii) the operation, possession, ownership, use, non-use, maintenance,
storage, delivery, non-delivery, control, testing, overhaul or repair of
the Aircraft, Airframe, or any Engine or any engine used in connection with
the Airframe, or any part thereof by the Lessee, any sublessee or any other
Person whatsoever, whether or not such operation, possession, ownership,
use, non-use, maintenance, storage, delivery, non-delivery, control,
testing, overhaul or repair is in compliance with the terms of the Lease,
including without limitation, claims for death, personal injury or property
damage or other loss or harm to any Person whatsoever and claims relating
to any laws, rules or regulations;
(iii) the manufacture, design, purchase, condition, repair,
modification, airworthiness, return, lease, sale, acceptance, rejection,
servicing, rebuilding, registration, alteration, merchantability,
substitution, replacement, fitness for use, transfer or sublease of any
Airframe, Engine, or Part under the Lease, the GTA or the Engine Warranty
Assignment or other transfer of use or possession, or other disposition of
the Aircraft, the Airframe, any Engine or any Part, latent or other defects
whether or not discoverable, strict tort liability, and any claims for
patent, trademark or copyright infringement;
(iv) any breach of or failure to perform or observe, or any other
non-compliance with, any condition, covenant or agreement to be performed,
or other obligations of the Lessee under any of the Operative Agreements,
or the falsity or inaccuracy of any representation or warranty of the
Lessee in any of the Operative Agreements (other than representations and
warranties in the Tax Indemnity Agreement);
(v) the Collateral Account and the Liquid Collateral;
(vi) the enforcement of the terms of the Operative Agreements and the
administration of the Trust Indenture Estate; and
(vii) the offer, issuance, sale or delivery of any Certificate or any
Pass Through Certificate, or any refunding or refinancing thereof, or
interest in the Lessor's Estate or the Trust Agreement or any similar
interest or in any way relating to or arising out of the Trust Agreement
and the Lessor's Estate, the Indenture or the Trust Indenture Estate
(including, without limitation, any claim arising out of the Securities Act
of 1933, as amended, the Securities Exchange Act of 1934, as amended, or
any other federal or state statute, law or regulation, or at common law or
otherwise relating to securities), or the action or inaction of the Owner
Trustee or Indenture Trustee as trustees, in the manner contemplated by
this Agreement, the Indenture, the Indenture and Security Agreement
Supplement or the Trust Agreement and in the case of the Owner Participant,
its obligations arising under Section 6.01 of the Trust Agreement.
The foregoing indemnity by the Lessee is intended to include and cover, but is
not limited to, any Expense to which the Indemnitees may be subject as a
result of their respective ownership or leasing of any interest in or holding
of any Lien on the Aircraft, Airframe, any Engine or Part during the Term,
whether or not in the Lessee's possession or control, insofar as such Expense
relates to any activity or event whatsoever involving such item while it is
under lease to the Lessee (or after termination of the Lease in connection
with the exercise of remedies thereunder to the extent that such Expense is
attributable to the transactions contemplated hereby and by the other
Operative Agreements), and such Expense does not fall within any of the
exceptions listed in Section 9.01(b) hereof.
(b) Exceptions. The indemnity provided for in Section 9.01(a) shall
not extend to any Expense of any Indemnitee:
(i) to the extent attributable to the willful misconduct or gross
negligence of such Indemnitee;
(ii) in respect of the Aircraft to the extent attributable to acts
or events which occur after the Aircraft is no longer part of the Lessor's
Estate or leased under the Lease or, if the Aircraft remains a part of the
Lessor's Estate, after the expiration of the Term (other than pursuant to
Article 17 of the Lease, in which case the indemnity provided in Section
9.01(a) hereof shall survive for so long as Lessor or the Indenture Trustee
shall be entitled to exercise remedies under such Article 17), or to acts
or events which occur after return of possession of the Aircraft by the
Lessee in accordance with the provisions of the Lease but in any such case
only to the extent not fairly attributable to acts or omissions of the
Lessee prior to expiration of the Term, including without limitation the
Lessee's failure to fully discharge all of its obligations under the Lease
or the other Operative Agreements;
(iii) which is a Tax, whether or not the Lessee is required to
indemnify therefor pursuant to Article 8 hereof or pursuant to the Tax
Indemnity Agreement;
(iv) which is a cost or expense expressly required to be paid by any
Owner Participant or its permitted transferees (and not by the Lessee)
pursuant to this Agreement or any other Operative Agreement;
(v) to the extent that such Expenses would not have been incurred by
such Indemnitee if such Indemnitee had not been in breach of its
representations or warranties, or had not defaulted in the observance and
performance of the terms and provisions required to be observed and
performed by it, in this Agreement, the Engine Warranty Assignment, the
Lease, the Indenture, the Trust Agreement or any other Operative Agreement
to which it is a party unless such breach or default shall be a result of
the breach or default of any of the foregoing by the Lessee or another
Indemnitee;
(vi) [Reserved];
(vii) in the case of any Owner Participant, Lessor's Liens to the
extent attributable to such Owner Participant; in the case of SSB, Lessor's
Liens to the extent attributable to SSB; and in the case of the Indenture
Trustee, Indenture Trustee's Liens;
(viii) in the case of any Owner Participant or the Owner Trustee, to
the extent attributable to the offer or sale by such Indemnitee after the
Delivery Date of any interest in the Aircraft, the Lessor's Estate or the
Trust Agreement or any similar interest (including an offer or sale
resulting from bankruptcy or other proceedings for the relief of debtors in
which such Indemnitee is the debtor), unless in each case such offer or
sale shall occur (w) in connection with a Refinancing, (x) during a period
when an Event of Default has occurred and is continuing, (y) during a
period when an Event of Loss has occurred or (z) in connection with the
termination of the Lease or action or direction of the Lessee pursuant to
Section 4.02 of the Lease or Article 10 of the Lease; or
(ix) in the case of any Owner Participant or any person who is a
"disqualified person", within the meaning of Section 4975(e)(2) of the
Code, or a "party in interest", within the meaning of Section 3(14) of
ERISA, by virtue of such person's relationship to such Owner Participant,
as the result of any prohibited transaction, within the meaning of Section
406 of ERISA or Section 4975(c)(1) of the Code, occurring with respect to
the purchase or holding of any Loan Certificate (or any funded
participation therein) (i) over which purchase or holding such Owner
Participant or any Affiliate thereof (other than in the capacity of a
directed trustee or custodian or similar nondiscretionary capacity) has
discretion or control, or (ii) by an employee benefit plan, within the
meaning of Section 3(3) of ERISA, or individual retirement account or plan
subject to Section 4975 of the Code with respect to which such Owner
Participant (or any Affiliate thereof) is a "plan sponsor", within the
meaning of Section 3(16)(B) of ERISA.
Section 9.02. After-Tax Basis. The amount which the Lessee shall be
required to pay with respect to any Expense indemnified against under Section
9.01 shall be an amount sufficient to restore the Indemnitee, on an After-Tax
Basis, to the same position such party would have been in had such Expense not
been incurred. If any Indemnitee actually realizes a permanent Tax benefit by
reason of the payment of such Expense paid or indemnified against by the
Lessee which was not considered in the computation thereof, such Indemnitee
shall promptly pay to the Lessee, but not before the Lessee shall have made
all payments theretofore due such Indemnitee under this Agreement, the Tax
Indemnity Agreement and any other Operative Agreement, an amount equal to the
lesser of (x) the sum of such Tax benefit plus any other permanent Tax benefit
actually realized by such Indemnitee as the result of any payment made by such
Indemnitee pursuant to this sentence and (y) the amount of such payment
pursuant to this Section 9.02 by the Lessee to such Indemnitee plus the amount
of any other payments by the Lessee to such Indemnitee theretofore made
pursuant to this Section 9.02 less the amount of any payments by such
Indemnitee to the Lessee theretofore made pursuant to this Section 9.02 (and
the excess, if any, of the amount described in clause (x) above over the
amount described in clause (y) above shall be carried forward and applied to
reduce pro tanto any subsequent obligations of the Lessee to make payments to
such Indemnitee pursuant to this Section 9.02), it being intended that no
Indemnitee should realize a net Tax benefit pursuant to this Section 9.02
unless the Lessee shall first have been made whole for any payments by it to
such Indemnitee pursuant to this Section 9.02; provided, however, that
notwithstanding the foregoing portions of this sentence, such Indemnitee shall
not be obligated to make any payment to the Lessee pursuant to this sentence
so long as any Payment Default, Bankruptcy Default or Event of Default shall
have occurred and be continuing. Any Taxes that are imposed on any Indemnitee
as a result of the disallowance or reduction of such Tax benefit referred to
in the next preceding sentence in a taxable year subsequent to the year of
allowance and utilization by such Indemnitee (including the expiration of any
tax credit carryovers or carrybacks of such Indemnitee that would not
otherwise have expired) shall be indemnifiable pursuant to the provisions of
Section 8.01 hereof (without regard to Section 8.01(b)(i), (iii) or (viii)
hereof).
Section 9.03. Subrogation. Upon the payment in full of any indemnity
pursuant to this Article 9 by the Lessee (but not earlier), the Lessee shall be
subrogated to any right of the Indemnitee, other than with respect to any of
such Indemnitee's insurance policies or in connection with any indemnity claim
the Person indemnified may have against any other Indemnitee in respect of the
matter against which such indemnity has been made.
Section 9.04. Notice and Payment. Each Indemnitee and the Lessee
shall give prompt written notice one to the other of any liability of which
such party has knowledge for which the Lessee is, or may be, liable under this
Article 9; provided, however, that failure to give such notice shall not
terminate any of the rights of the Indemnitees under this Article 9, except
(with respect to such Indemnitee) to the extent that the Lessee has been
materially prejudiced by the failure to provide such notice. Unless otherwise
provided in the Operative Agreements, any amount payable to an Indemnitee
pursuant to this Article 9 shall be paid within 30 days after receipt of a
written demand therefor from such Indemnitee accompanied by a written statement
describing in reasonable detail the basis for such indemnity and the
computation of the amount so payable.
Section 9.05. Refunds. If any Indemnitee shall obtain a recovery of
all or any part of any amount which the Lessee shall have paid to such
Indemnitee or for which the Lessee shall have reimbursed such Indemnitee under
this Article 9, and provided there shall not have occurred a Payment Default,
Bankruptcy Default or an Event of Default (in which case payment shall not be
made to the Lessee until such Payment Default, Bankruptcy Default or Event of
Default shall have been cured) such Indemnitee shall pay to the Lessee, within
ten (10) Business Days of receipt thereof by such Indemnitee, the amount of
any such recovery, including interest received with respect to the recovery,
net of any Taxes paid or payable as a result of the receipt of the recovery
and interest, plus any net additional permanent income Tax benefits actually
realized by Indemnitee as the result of any payment made pursuant to this
sentence less any reasonable costs and expense of any Indemnitee not
reimbursed by the Lessee; provided, however, that such amount shall not be
payable (a) before such time as the Lessee shall have made all payments or
indemnities then due and payable to such Indemnitee under this Article 9 or
(b) to the extent that the amount of such payment would exceed the amount of
all prior payments by the Lessee to such Indemnitee pursuant to this Article
9, less the amount of all prior payments by such Indemnitee to the Lessee
pursuant to this Article 9. Any subsequent loss of such recovery or Tax
benefit shall be subject to indemnification under Article 8 or this Article 9,
as the case may be.
Section 9.06. Defense of Claims. The Lessee or its insurers shall
have the right (in each such case at the Lessee's sole expense) to investigate
or, provided that (i) the Lessee or its insurers shall not reserve the right
to dispute liability with respect to any insurance policies pursuant to which
coverage is sought, (ii) in the case of the Lessee, no Event of Default shall
have occurred and be continuing and (iii) the Lessee shall have first
acknowledged in writing to such Indemnitee the Lessee's obligation to
indemnify such Indemnitee hereunder in respect of such claim, defend any claim
covered by insurance for which indemnification is sought pursuant to this
Article 9 and each Indemnitee shall cooperate with the Lessee or its insurers
with respect thereto, and provided, further, the Lessee shall not be entitled
to assume and control the defense of any such claim if and to the extent such
Indemnitee reasonably objects to such control on the ground that an actual or
potential material conflict of interest exists where it is advisable for such
Indemnitee to be represented by separate counsel. Subject to the immediately
foregoing sentence, where the Lessee or the insurers under a policy of
insurance maintained by the Lessee undertake the defense of an Indemnitee with
respect to such a claim, no additional legal fees or expenses of such
Indemnitee in connection with the defense of such claim shall be indemnified
hereunder unless the fees or expenses were incurred at the written request of
the Lessee or such insurers. Subject to the requirement of any policy of
insurance applicable to a claim, an Indemnitee may participate at its own
expense at any judicial proceeding controlled by the Lessee or its insurers
pursuant to the preceding provisions, provided that such party's participation
does not, in the opinion of the independent counsel appointed by the Lessee or
its insurers to conduct such proceedings, interfere with such control; and
such participation shall not constitute a waiver of the indemnification
provided in this Section 9.06. No Indemnitee shall enter into any settlement
or other compromise with respect to any claim described in this Section 9.06
without the prior written consent of the Lessee, which consent shall not
unreasonably be withheld or delayed, unless such Indemnitee waives its right
to be indemnified under this Article 9 with respect to such claim. The Lessee
shall not enter into any settlement or compromise which admits any criminal
violation, gross negligence or willful misconduct on the part of any Indemnitee
without the prior written consent of such Indemnitee.
Section 9.07. Survival of Obligations. The representations,
warranties, indemnities and agreements of the Lessee provided for in this
Article 9 and the Lessee's obligations under any and all of them shall survive
the expiration or other termination of this Agreement, the Tax Indemnity
Agreement, the Trust Agreement, the Indenture, the Engine Warranty Assignment,
the Lease and the other Operative Agreements but, as to such indemnities, only
with respect to losses, liabilities, obligations, damages, penalties, claims,
actions, suits, costs, Expenses and disbursements caused by events occurring
or existing prior to or incurred in the process of (i) the return or
disposition of the Aircraft under Article 12 or Article 17 of the Lease, or
(ii) the termination of the Lease or the Indenture or, if later, the return of
the Aircraft.
Section 9.08. Effect of Other Indemnities. The Lessee's obligations
under the indemnities provided for in this Agreement shall be those of a
primary obligor whether or not the Person indemnified shall also be
indemnified with respect to the same matter under the terms of this Agreement,
the Lease, the Indenture, the Trust Agreement, or any other document or
instrument, and the Person seeking indemnification from the Lessee pursuant to
any provision of this Agreement may proceed directly against the Lessee
without first seeking to enforce any other right of indemnification.
ARTICLE 10
TRANSACTION COSTS
Section 10.01. Transaction Costs and Other Costs. (a) Transaction
Costs. Except as otherwise provided in any amendment to this Agreement, the
Lessee (or the Owner Participant following a transfer of the Initial Owner
Participant's Beneficial Interest) shall pay all fees and expenses of the
following persons relating to the public offering of the Pass Through
Certificates contemplated by the Underwriting Agreement and related to the
transactions contemplated hereby on the Certificate Closing Date and the
Delivery Date: (i) the fees and expenses of counsel for any Owner Participant;
(ii) the fees and expenses of the transaction documentation counsel for the
Lessee and counsel for the Owner Trustee, the Indenture Trustee, the Pass
Through Trustee, the Subordination Agent, each Liquidity Provider and the
Underwriters (other than those fees, expenses and disbursements payable by the
Underwriters pursuant to the Underwriting Agreement); (iii) the fees and
expenses of Daugherty, Fowler & Peregrin; (iv) any initial fees and expenses
of the Pass Through Trustee and each Liquidity Provider and the fees and
expenses of the Owner Trustee, the Subordination Agent and the Indenture
Trustee; (v) any compensation, commissions and discounts payable to the
Underwriters pursuant to the Underwriting Agreement; (vi) the fees, if any,
incurred in printing the Pass Through Certificates; (vii) the fees and
expenses incurred in connection with printing any amendment to the
Registration Statement on Form S-3 bearing Registration No. 333-07691,
printing any Preliminary Prospectus or Prospectus (as such terms are defined
in the Underwriting Agreement) for the offering of the Pass Through
Certificates; (viii) the fees and expenses of Arthur Andersen LLP; (ix) the
fees and expenses of Moody's and S&P; (x) the fees and expenses of First
Chicago Leasing Corporation; (xi) the reasonable out-of-pocket expenses of the
Owner Participant, including, without limitation, any amounts paid in
connection with any appraisal report prepared on behalf of the Owner
Participant; (xii) reimbursement to the Owner Participant, the Owner Trustee,
the Indenture Trustee, the Subordination Agent, each Liquidity Provider and
the Pass Through Trustee for any and all fees, expenses and disbursements of
the character referred to above or otherwise incurred in connection with the
negotiation, preparation, execution and delivery, filing and recording of the
Operative Agreements and the documents contemplated thereby, including, without
limitation, travel expenses and disbursements which shall have been paid by
such party; (xiii) printing and duplicating expenses and all fees, taxes and
other charges payable in connection with the recording or filing on or before
the Delivery Date of the instruments described in this Agreement; (xiv)
initial fees, initial expenses, initial disbursements and the initial costs of
distributing the Certificates (but not the continuing fees, expenses,
disbursements and costs of distribution) of SSB, as lessor under the Lease and
as Owner Trustee under the Trust Agreement and with respect to the
administration of the Lease and the Lessor's Estate, of the Indenture Trustee
as trustee under the Indenture with respect to the administration of the Trust
Indenture Estate and of the Subordination Agent acting under the Intercreditor
Agreement; and (xv) any other amounts approved by the Lessee and the Owner
Participant. The fees and expenses described in clauses (ii) through (x) of
this paragraph shall be allocable to the Owner Participant under this
Agreement (1) to the extent incurred specifically with respect to the Owner
Participant, and (2) to the extent such fees and expenses are incurred but are
not specifically attributable to the Owner Participant, in the proportion that
the principal amount of the Certificates bears to the total amount of the Pass
Through Certificates.
The Owner Participant, the Owner Trustee and the Lessee acknowledge
that the percentages for Basic Rent, Stipulated Loss Value and Termination
Value set forth in the Lease have been prepared assuming the aggregate amount
payable by the Owner Participant pursuant to the preceding paragraph is 1.44%
of the Purchase Price (the "Estimated Expense Amount").
(b) Continuing Expenses. The continuing fees, expenses and
disbursements (including reasonable counsel fees and expenses) of the entity
acting as Owner Trustee, as lessor under the Lease and as Owner Trustee under
the Trust Agreement with respect to the administration of the Lease and the
Lessor's Estate and the continuing fees, expenses and disbursements (including
reasonable counsel fees and expenses and initial fees relating to the
establishment of any replacement trustee) of the Indenture Trustee, as trustee
under the Indenture with respect to the administration of the Trust Indenture
Estate, the continuing fees, expenses and disbursements (including reasonable
counsel fees and initial fees relating to the establishment of a replacement
trustee) of the Pass Through Trustee and the Subordination Agent and the
continuing fees, expenses and disbursements (including reasonable counsel fees
and initial fees relating to the establishment of a replacement liquidity
provider) of the Liquidity Providers under each Liquidity Facility shall be
paid as Supplemental Rent by the Lessee, including without limitation any
amounts payable to the Indenture Trustee or on account of requests by the
Indenture Trustee for indemnification under Article XI of the Indenture.
(c) Amendments, Supplements and Appraisal. Without limitation of the
foregoing, the Lessee agrees:
(i) to pay as Supplemental Rent to the Owner Trustee, any Owner
Participant, the Indenture Trustee, the Subordination Agent, each Liquidity
Provider and the Pass Through Trustee all costs and expenses (including
reasonable legal fees and expenses) incurred by any of them in connection
with (a) any Default or Event of Default and any enforcement or collection
proceedings resulting therefrom or (b) the negotiation of any restructuring
or "work-out" (whether or not consummated), or the obligations of the
Lessee hereunder or under the other Operative Agreements and the
enforcement of this Section 10.01, including, without limitation, the
entering into or giving or withholding of any amendments or supplements or
waivers or consents (whether or not consummated), including without
limitation, any amendment, waiver, modification or consent resulting from
any work-out, restructuring or similar proceeding relating to the
performance or nonperformance by the Lessee of its obligations under the
Operative Agreements or (c) any amendment, supplement, waiver or consent
(whether or not entered into) under this Agreement, the Lease, the
Indenture, the Certificates, the Tax Indemnity Agreement, the Engine
Warranty Assignment or any other Operative Agreement or document or
instrument delivered pursuant to any of them, which amendment, supplement,
waiver or consent is required by any provision of any Operative Agreement
or is requested by the Lessee or necessitated by the action or inaction of
the Lessee; provided, however, that the Lessee shall not be responsible for
fees and expenses of the other parties hereto incurred in connection with
the offer, sale or other transfer (whether pursuant to Article 5 of the
Trust Agreement or otherwise) by the Owner Participant or the Owner Trustee
after the Refunding Date of any interest in the Aircraft, the Lessor's
Estate, the Beneficial Interest, the Trust Agreement or any similar
interest (and the Owner Participant shall be responsible for all such fees
and expenses), unless such offer, sale or transfer shall occur (A) during a
period when an Event of Default has occurred and is continuing under the
Lease, (B) during a period following an Event of Loss, (C) in connection
with the termination of the Lease or (D) as a result of an action or
direction of the Lessee pursuant to Section 4.02 or Article 8, 9 or 10 of
the Lease; and
(ii) to pay the fees, costs and expenses of all appraisers involved
in an independent appraisal of the Aircraft to the extent required under
Section 4.03 of the Lease.
ARTICLE 11
SUCCESSOR OWNER TRUSTEE
Section 11.01. Appointment of Successor Owner Trustee. (a)
Resignation and Removal. The Owner Trustee or any successor Owner Trustee may
resign or may be removed by the applicable Owner Participant, and a successor
Owner Trustee may be appointed under the Trust Agreement only in accordance
with the provisions of Section 3.11 of the Trust Agreement and the provisions
of paragraphs (b) and (c) of this Section 11.01.
(b) Conditions to Appointment. The appointment in any manner of a
successor Owner Trustee pursuant to Section 3.11 of the Trust Agreement shall
be subject to the following conditions:
(i) Such successor Owner Trustee shall be a Citizen of the United
States;
(ii) Such successor Owner Trustee shall be a bank or a trust company
having combined capital, surplus and undivided profits of at least
$100,000,000 or a bank or trust company fully guaranteed by a direct or
indirect parent thereof having a combined capital, surplus and undivided
profits of at least $100,000,000;
(iii) Such appointment shall not violate any provisions of the
Transportation Code or any applicable rule or regulation of the applicable
regulatory agency or body of any other jurisdiction in which the Aircraft
may then be registered or create a relationship which would be in violation
of the Transportation Code or any applicable rule or regulation of the
applicable regulatory agency or body of any other jurisdiction in which the
Aircraft may then be registered;
(iv) Such successor Owner Trustee shall enter into an agreement or
agreements, in form and substance satisfactory to the Lessee, the Owner
Participant, the Pass Through Trustee and the Indenture Trustee whereby such
successor Owner Trustee confirms that it shall be deemed a party to this
Agreement, the Trust Agreement, the Lease, the Lease Supplement, the Engine
Warranty Assignment, the Indenture, the Indenture Supplement and any other
Operative Agreement to which the Owner Trustee is a party and agrees to be
bound by all the terms of such documents applicable to the Owner Trustee and
makes the representations and warranties contained in Section 7.04 hereof
(except that it may be duly incorporated, validly existing and in good
standing under the laws of the United States of America or any State
thereof); and
(v) All filings of Uniform Commercial Code financing and continuation
statements, filings in accordance with the Transportation Code and
amendments thereto shall be made and all further actions taken in
connection with such appointment as may be necessary in connection with
maintaining the validity, perfection and priority of the Lien of the
Indenture and the valid and continued registration of the Aircraft in
accordance with the Transportation Code.
ARTICLE 12
LIABILITIES AND INTERESTS OF THE OWNER PARTICIPANT AND HOLDERS
Section 12.01. Liabilities of Owner Participant. No Owner
Participant shall have any obligation or duty to the Lessee or to any Holder
with respect to the transactions contemplated by this Agreement, except those
obligations or duties expressly set forth in this Agreement, the Indenture,
the Trust Agreement, the Tax Indemnity Agreement, the Bills of Sale, the Lease
or any other Operative Agreement to which the Owner Participant is a party and
no Owner Participant shall be liable for the performance by any party hereto
of such other party's obligations or duties hereunder. Under no circumstances
shall the Owner Participant as such be liable to the Lessee, nor shall the
Owner Participant be liable to any Holder, for any action or inaction on the
part of the Owner Trustee or the Indenture Trustee in connection with this
Agreement, the Indenture, the Lease, the Trust Agreement, the Engine Warranty
Assignment, any other Operative Agreement, the ownership of the Aircraft, the
administration of the Lessor's Estate or the Trust Indenture Estate or
otherwise, whether or not such action or inaction is caused by the willful
misconduct or gross negligence of the Owner Trustee or the Indenture Trustee.
Section 12.02. Interest of Holders of Certificates. A Holder of a
Certificate shall have no further interest in, or other right with respect to,
the Trust Indenture Estate when and if the principal and interest on all
Certificates held by such Holder and all other sums payable to such Holder
under this Agreement, under the Indenture and under such Certificates shall
have been paid in full.
ARTICLE 13
OTHER DOCUMENTS
Section 13.01. Consent of Lessee to Other Documents. The Lessee
hereby consents in all respects to the execution and delivery of the
Indenture, the Intercreditor Agreement and the Liquidity Facilities and to all
of the terms of said documents, and the Lessee acknowledges receipt of an
executed counterpart of such documents; it being agreed that such consent
shall not be construed to require the Lessee's consent to any future
supplement to, or amendment, waiver or modification of the terms of the
Indenture, the Intercreditor Agreement and the Liquidity Facilities or the
Certificates, except that prior to the occurrence and continuance of an Event
of Default, no section of the Indenture or the Trust Agreement, the
Intercreditor Agreement and the Liquidity Facilities shall be amended or
modified in any manner materially adverse to the Lessee without its consent.
Section 13.02. Further Assurances. The Lessee agrees that, except
as otherwise provided in the Indenture, the Owner Trustee may not enter into
any amendment, modification or supplement of, or give any waiver or consent
with respect to, or approve any matter or document as being satisfactory under
the Lease without the prior consent of the Indenture Trustee and any Owner
Participant and that, except as otherwise provided in the Indenture, upon an
Indenture Event of Default, the Indenture Trustee may act as the Lessor under
the Lease to the exclusion of the Owner Trustee. The Lessee further agrees to
deliver to the Indenture Trustee and any Owner Participant a copy of each
notice, statement, request, report or other communication given or required to
be given to the Owner Trustee under the Lease.
Section 13.03. Pass Through Trustee's and Subordination Agent's
Acknowledgement. The Pass Through Trustee and the Subordination Agent hereby
acknowledge and agree to be bound by all of the terms and conditions of the
Indenture, including without limitation, Section 8.01 thereof regarding the
rights of the Owner Participant to purchase the Certificates under
circumstances specified therein.
ARTICLE 14
NOTICES
Section 14.01. Notices. All notices, demands, declarations and other
communications required by this Agreement shall be in writing and shall be
deemed received (a) if given by telecopier, when transmitted and the
appropriate telephonic confirmation received if transmitted on a Business Day
and during normal business hours of the recipient, and otherwise on the next
Business Day following transmission, (b) if given by certified mail, return
receipt requested, postage prepaid five Business Days after being deposited in
the United States mail, and (c) if given by FedEx service or other means, when
received or personally delivered, addressed:
(a) If to the Lessee, to its office at 2007 Corporate Avenue,
Memphis, Tennessee 38132, Attention: Vice President and Treasurer with a
copy to Senior Vice President and General Counsel at 1980 Nonconnah
Boulevard, Memphis, Tennessee 38132, telephone (901) 395-3388, facsimile
(901) 395-4758; or to such other address as the Lessee shall from time to
time designate in writing to the Lessor, the Indenture Trustee and any
Owner Participant;
(b) If to the Lessor or the Owner Trustee, to it c/o State Street
Bank and Trust Company, Two International Place, 4th Floor, Boston,
Massachusetts 02110, Attention: Corporate Trust Department, telephone (617)
664-5526, facsimile (617) 664-5371; or to such other address as the Lessor
shall from time to time designate in writing to the Lessee and the
Indenture Trustee, with a copy to any Owner Participant;
(c) If to the Indenture Trustee, the Subordination Agent or the Pass
Through Trustee, to its office at 79 South Main Street, Salt Lake City,
Utah 84111, Attention: Corporate Trust Department, telephone (801)
246-5053, facsimile (801) 246-5630; or to such other address as the
Indenture Trustee or the Pass Through Trustee, as the case may be, shall
from time to time designate in writing to the Lessor, the Lessee and any
Owner Participant; and
(d) If to a Liquidity Provider, to its office at 125 West 55th
Street, New York, New York 10019, Attention: General Manager, telephone
(212) 541-0600, facsimile (212) 956-5580; or to such other address as a
Liquidity Provider shall from time to time designate in writing to the
Lessor, the Lessee and the Indenture Trustee.
ARTICLE 15
REFINANCING/REOPTIMIZATION
Section 15.01. Refinancing. (a) Subject to the terms and
conditions of this Section 15.01, the Lessee may request an Owner Participant
to participate in up to two refinancings in whole but not in part, of the
Certificates prior to the end of the Basic Term (a "Refinancing"). Such
Refinancings may be placed in either the private or public markets and shall
be denominated in United States dollars (or in any other foreign currency so
long as the Owner Participant is satisfied there is no foreign currency risk
to it), and shall be on terms that do not materially adversely affect the
Owner Participant. The Owner Participant will agree to negotiate promptly in
good faith to conclude an agreement with the Lessee as to the terms of any such
Refinancing transaction (including the terms of any debt to be issued in
connection with such refinancing and the documentation to be executed in
connection therewith). Without the prior written consent of the Owner
Participant, the prospectus and other offering materials relating to any
Refinancing in the form of a public offering shall not identify the Owner
Participant and shall not include any financial statements of the Owner
Participant or any Affiliate thereof. In connection with any such Refinancing
in the form of a public offering, the Lessee shall indemnify the Owner
Participant in a manner satisfactory to it for any liabilities under federal,
state or foreign securities laws resulting from such offering. The aggregate
principal amount of the new Certificates issued in connection with each
Refinancing shall be the same as the aggregate principal amount outstanding on
the Certificates being refinanced.
(b) Notwithstanding anything herein to the contrary, no Refinancing
will be permitted unless the Owner Participant and the Indenture Trustee shall
have received at least 15 days' prior written notice of the scheduled closing
date of such Refinancing and the Owner Participant shall have been provided
such longer period as it shall have required for a reasonable opportunity to
review the relevant documentation and the Owner Participant shall have
determined in good faith that neither it nor the Owner Trustee shall suffer
any loss or expense or bear any increased risk as a result of such Refinancing
(including, without limitation, any risk with respect to taxes or other
adverse consequences to the Owner Participant including the application of
Revenue Procedures 75-21 and 75-28 and Section 467 of the Code) for which it
has not been or will not have been indemnified by the Lessee in a manner
reasonably satisfactory to the Owner Participant, nor shall its rights against
all other parties taken as a whole be adversely affected compared to such
rights in effect under the Operative Agreements prior to such proposed
Refinancing.
Prior to the consummation of any Refinancing pursuant to this Section
15.01, the Owner Participant and the Lessee shall agree upon a schedule
setting forth each installment of Basic Rent and setting forth Stipulated Loss
Values and Termination Values payable pursuant to the Lease as a result of the
Refinancing in accordance with Section 3.04 of the Lease, and thereafter the
amounts set forth in such schedule shall become the amounts payable under the
Lease. Upon the consummation of the Refinancing, the evidence of indebtedness
issued pursuant to the Refinancing shall be considered "Certificates" for
purposes of this Agreement, the Lease and the Indenture.
(c) Notwithstanding the foregoing, the Owner Participant shall have
no obligation to proceed with any Refinancing transaction as contemplated by
this Section 15.01 unless the Lessee indemnifies the Owner Trustee and the
Owner Participant by agreement in form and substance satisfactory to each of
them, for any liability, obligation (other than the obligation to pay
principal and interest in respect of the refinanced indebtedness), cost or
expense (including, without limitation, reasonable attorneys' fees and
Make-Whole Premium or other amounts due under the Indenture), including any
adverse tax consequences or impact, related to or arising out of any such
Refinancing transaction.
(d) Without the prior written consent of the Owner Participant, which
consent may be withheld in its sole discretion, no such refinancing shall (1)
cause the aggregate principal amount of the indebtedness to be substituted for
the Certificates to exceed the aggregate principal amount of the then
outstanding Certificates, (2) cause the weighted average life of such
indebtedness to be different by more than 6 months than the remaining weighted
average life of the then outstanding Certificates, or (3) cause the date of
maturity of such indebtedness to be later than the date of maturity of the
Certificates being refinanced.
(e) Each party will agree to take or cause to be taken all requested
action, including, without limitation, the execution and delivery of any
documents and instruments, including, without limitation, amendments or
supplements to the Lease, which may be reasonably necessary or desirable to
effect such Refinancing, including, in the case of the Owner Participant,
direction to the Owner Trustee by the Owner Participant to prepay the
Certificates then outstanding; provided, however, that such Refinancing shall
be subject to the satisfaction of each of the following conditions:
(i) Payment of principal, accrued interest, Make-Whole Premium and
breakage costs, if any, and all other sums due and owing on the Certificates
payable under the Indenture;
(ii) Payment in full of all other amounts then due and owing by the
Lessee under this Agreement, the Indenture, the Lease, the Trust Agreement,
and the Certificates then outstanding shall have been made by the Lessee;
(iii) Such party shall have received such opinions of counsel
(including, without limitation, an opinion received by the Owner
Participant from independent tax counsel reasonably satisfactory to the
Lessee that such Refinancing shall not result in any adverse tax
consequences to such Owner Participant, unless the Lessee shall have agreed
to provide an indemnity in respect thereof reasonably satisfactory in form
and substance to the Owner Participant), certificates and other documents
as it may reasonably request, each in form and substance reasonably
satisfactory to such party;
(iv) All authorizations, approvals and consents which in the
reasonable judgment of the Owner Participant are necessary for such
Refinancing shall have been obtained;
(v) The Lessee shall have provided or agreed to provide to the Owner
Participant, as Supplemental Rent under the Lease, sufficient funds to pay
any breakage costs, Make-Whole Premium and any other amounts due under the
Indenture;
(vi) The satisfaction or waiver by each other party to this
Agreement of the conditions set forth in this Section 15.01 to such party's
obligations under this Section 15.01;
(vii) No Payment Default, Bankruptcy Default or Event of Default shall
have occurred and be continuing or would occur immediately after giving
effect to such Refinancing;
(viii) In the event the Lessee shall not prohibit the purchase of
the Refinancing loan certificates by, or with the assets of, an employee
benefit plan, as defined in Section 3(3) of ERISA, which is subject to
Title I of ERISA or a plan or individual retirement account, which is
subject to Section 4975(c) of the Code, (individually or collectively, an
"ERISA Plan"), the Lessee will permit the placement of the Refinancing loan
certificates with an ERISA Plan only if either (A) if such placement is in
the form of pass through certificates, the sole underwriter or the manager
or co-manager of the underwriting syndicate or the selling or placement
agent of the Refinancing loan certificates represents to the Lessee that it
has a prohibited transaction exemption from the U.S. Department of Labor
with respect to pass through certificates (such as Prohibited Transaction
Exemption 89-88 or any other comparable exemption) or (B) purchasers of the
Refinancing loan certificates provide a representation (which may be in the
form of a deemed representation) regarding their source of funds used in
acquiring the Refinancing loan certificates and, if such purchasers
represent that they are using funds of an ERISA Plan in acquiring the
Refinancing loan certificates, such purchasers further represent that (1)
either they are relying on a prohibited transaction exemption from the U.S.
Department of Labor with respect to their purchase and holding of the
Refinancing loan certificates and they provide representations regarding the
satisfaction of the relevant conditions of such an exemption or (2) their
purchase and holding of the Refinancing loan certificates will not
constitute a non-exempt prohibited transaction under Section 406 of ERISA
or Section 4975 of the Code. The reliance on any such exemption will not
be conditional on the Owner Participant's representation concerning its
party in interest or other status with respect to ERISA Plans. If neither
exemption referred to in clause (A) or (B) of this paragraph (viii) is
valid or applicable in any respect to the purchase and holding of the
Refinancing loan certificates, or if the representation in clause (B) of
this paragraph (viii) that such purchase and holding will not constitute a
non-exempt prohibited transaction is not correct, whichever is applicable,
then the Lessee shall indemnify the Owner Participant pursuant to, and to
the extent provided for, under Sections 8 and 9 hereof for Taxes and
Expenses resulting from any "prohibited transaction", within the meaning of
Section 406 of ERISA or Section 4975(c)(1) of the Code, occurring with
respect to the placement of the Refinancing loan certificates with, or the
holding of the Refinancing loan certificates by, any ERISA Plan with
respect to which the Owner Participant is a party in interest, within the
meaning of Section 3(14) of ERISA, or a disqualified person, within the
meaning of Section 4975 of the Code, provided, however, that if the Lessee
shall fail to obtain either of the representations set forth in clause (A)
or (B) of this paragraph (viii), such indemnity shall not be subject to the
exceptions set forth under Sections 8.01(b)(xii)(A) and (B) and
9.01(b)(ix)(A) and (B) hereof; and
(ix) The Lessee shall pay all costs and expenses (including legal
fees) incurred in connection with any proposed or actually consummated
Refinancing.
ARTICLE 16
[RESERVED]
ARTICLE 17
MISCELLANEOUS
Section 17.01. Reserved.
Section 17.02. Collateral Account. (a) The Indenture Trustee shall
notify the Owner Trustee and the Lessee of any losses incurred on the
Specified Investments in the Collateral Account promptly upon the realization
thereof, as well as any fees, commissions and other costs, Taxes (other than
income taxes) and expenses, if any, incurred by the Indenture Trustee in
connection with its administration of the Collateral Account (collectively,
"Losses"). Promptly upon receipt of such notification but, in any event, no
later than the earlier of the Delivery Date (or, if later, the last day of any
investment period referred to in Section 2.14(b) of the Indenture during which
the Delivery Date occurs) and the 15th day after the Cut-Off Date, the Lessee
shall pay to the Indenture Trustee, on behalf of the Owner Trustee, for
deposit into the Collateral Account, an amount equal to such Losses (net of
any investment earnings).
(b) The Lessee shall pay to the Indenture Trustee, on behalf of the
Owner Trustee (A) on each Payment Date prior to the Delivery Date an amount
equal to the aggregate amount of interest accrued on the Certificates from
(and including) the Certificate Closing Date or previous Payment Date, as the
case may be, to, but excluding, such Payment Date and (B) on the first Payment
Date subsequent to the Delivery Date, interest accrued on the Certificates
from and including the last Payment Date (or, if none, the Certificate Closing
Date), to, but excluding, the Delivery Date. In addition, the Lessee will pay
to the Indenture Trustee on behalf of the Owner Trustee all amounts owed by
the Owner Trustee pursuant to clause (b) of the last paragraph of Section 2.04
of the Indenture.
(c) If the Aircraft has not been purchased by the Owner Trustee on the
Delivery Date, the Lessee agrees to pay to the Indenture Trustee, on behalf of
the Owner Trustee, on the 15th day following the Cut-Off Date the excess, if
any, of the amounts payable under Section 6.02(b)(1) of the Indenture over the
amounts released from the Collateral Account under Section 2.16 of the
Indenture.
(d) All amounts payable by the Lessee pursuant to this Section 17.02
shall be paid to the Indenture Trustee at its principal office at 79 South
Main Street, Salt Lake City, Utah, 84111, Attention: Corporate Trust
Department, or as the Indenture Trustee may otherwise direct within the United
States, by wire transfer of immediately available funds in U.S. Dollars no
later than 10:30 a.m., New York City time, on the due date of such payment.
Section 17.03. Counterparts. This Agreement may be executed by the
parties in separate counterparts, each of which when so executed and delivered
shall be an original, but all such counterparts shall together constitute but
one and the same instrument.
Section 17.04. No Oral Modifications. Neither this Agreement nor
any of its terms may be terminated, amended, supplemented, waived or modified
orally, but only by an instrument in writing signed by the party against which
the enforcement of the termination, amendment, supplement, waiver or
modification is sought. No such written termination, amendment, supplement,
waiver or modification shall be effective unless a signed copy shall have been
delivered to and executed by the Owner Trustee and the Indenture Trustee. A
copy of each such termination, amendment, supplement, waiver or modification
shall also be delivered to each other party to this Agreement.
The consent of the Pass Through Trustee and the Subordination Agent,
in its respective capacity as a party to this Agreement and not as a Holder,
shall not be required to modify, amend or supplement this Agreement or to give
any consent, waiver, authorization or approval with respect to this Agreement
under the circumstances in which the consent of the Indenture Trustee would
not be required for such modification, amendment, supplement, consent, waiver
or approval in accordance with Section 8.01(b) of the Indenture and Section
2.03 hereof, provided that the Pass Through Trustee shall be entitled to
receive an Opinion of Counsel (as defined in the Pass Through Agreement)
necessary, in its sole discretion, to establish that the Indenture Trustee's
consent would not be required under such circumstances.
Section 17.05. Captions. The table of contents preceding this
Agreement and the headings of the various Articles and Sections of this
Agreement are for convenience of reference only and shall not modify, define,
expand or limit any of the terms or provisions of this Agreement.
Section 17.06. Successors and Assigns. The terms of this Agreement
shall be binding upon, and shall inure to the benefit of, the Lessee and its
successors and permitted assigns, the Subordination Agent and its successors
and permitted assigns, the Owner Trustee and its successors as Owner Trustee
(and any additional owner trustee appointed) under the Trust Agreement, the
Indenture Trustee and its successors as Indenture Trustee (and any additional
indenture trustee appointed) under the Indenture and the Pass Through Trustee
and its successors as Pass Through Trustee (and any additional pass through
trustee appointed).
Section 17.07. Concerning the Owner Trustee, the Indenture Trustee
and the Pass Through Trustee. Each of SSB and FSB is entering into this
Agreement solely in their respective capacities (except to the extent
otherwise expressly indicated), in the case of SSB, not in its individual
capacity but solely as Owner Trustee under the Trust Agreement, in the case of
FSB, not in its individual capacity but solely as Indenture Trustee under the
Indenture and as Pass Through Trustee under the Pass Through Agreement, and
except as otherwise expressly provided in this Agreement or in the Lease, the
Indenture, the Pass Through Agreement or the Trust Agreement, neither SSB,
nor FSB, shall be personally liable for or on account of its statements,
representations, warranties, covenants or obligations under this Agreement;
provided, however, that each of SSB and FSB accepts the benefits running to it
under this Agreement, and each agrees that (except as otherwise expressly
provided in this Agreement or any other Operative Agreement to which it is a
party) it shall be liable in its individual capacity for (a) its own gross
negligence or willful misconduct (whether in its capacity as trustee or in its
individual capacity), (b) any breach of representations and warranties or any
breach of covenants made in its individual capacity pursuant to or in
connection with this Agreement or the other Operative Agreements to which it is
a party, (c) any breach, in the case of the Owner Trustee, of its covenants
contained in Sections 3.05 and 3.08 of the Indenture, (d) the failure to use
ordinary care in receiving, handling and disbursing funds, (e) in the case of
the Owner Trustee, Lessor's Liens attributable to it in its individual
capacity, (f) in the case of the Indenture Trustee, Indenture Trustee's Liens
and (g) taxes, fees or other charges on, or based on, or measured by, any
fees, commissions or compensation received by it in connection with the
transactions contemplated by the Operative Agreements.
Section 17.08. Severability. Any provision of this Agreement which
is prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions, and any such
prohibition or unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction.
Section 17.09. Public Release of Information. Subject to applicable
legal requirements (including, without limitation, securities laws
requirements, other regulatory requirements and other legally compelled
disclosures), so long as there shall not have occurred an Event of Default or
Indenture Event of Default, each party to this Agreement shall in each
instance obtain the prior written approval of each other party to this
Agreement concerning the exact text and timing of news releases, articles and
other information releases to the public media concerning any Operative
Agreements.
Section 17.10. Certain Limitations on Reorganization. The Indenture
Trustee and the Pass Through Trustee agree that, if (i) the Owner Trustee
becomes or all or any part of the Lessor's Estate or the trust created by the
Trust Agreement becomes the property of, a debtor subject to the
reorganization provisions of the Bankruptcy Code or any other applicable
bankruptcy or insolvency statutes, (ii) pursuant to any such reorganization
provisions, the Owner Participant is held to have recourse liability to the
debtor, the Owner Trustee or the trustee of the debtor directly or indirectly
on account of any amount payable as Make-Whole Premium, principal or interest
on the Certificates, or any other amount payable on any Certificate that is
provided in the Operative Agreements to be nonrecourse to the Owner
Participant and (iii) the Indenture Trustee actually receives any Recourse
Amount which reflects any payment by an Owner Participant on account of (ii)
above, then the Indenture Trustee, as the case may be, shall promptly refund
to the Owner Participant such Recourse Amount. For purposes of this Section
17.10, "Recourse Amount" means the amount by which the portion of such payment
by the Owner Participant on account of clause (ii) above received by the
Indenture Trustee exceeds the amount which would have been received by the
Indenture Trustee if the Owner Participant had not become subject to the
recourse liability referred to in (ii) above. Nothing contained in this
Section shall prevent the Indenture Trustee from enforcing any individual
obligation (and retaining the proceeds thereof) of the Owner Participant under
this Agreement or any other Operative Agreement to the extent herein or
therein provided, for which the Owner Participant has expressly agreed by the
terms of this Agreement to accept individual responsibility.
Section 17.11. GOVERNING LAW. THIS AGREEMENT SHALL IN ALL RESPECTS
BE GOVERNED BY, AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF
NEW YORK, INCLUDING ALL MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE BUT
WITHOUT GIVING EFFECT TO PRINCIPLES OF CONFLICTS OF LAWS, AND IS BEING
DELIVERED IN NEW YORK.
Section 17.12. Section 1110 Compliance. Notwithstanding any
provision herein or elsewhere contained to the contrary, it is understood and
agreed among the parties hereto that the transactions contemplated by this
Agreement and the other Operative Agreements are expressly intended to be,
shall be and should be construed so as to be, entitled to the full benefits of
Section 1110 of the Bankruptcy Code from time to time with respect to the
right to repossess the Airframe, the Engines and any Parts as provided herein,
and in any circumstances where more than one construction of the terms and
conditions of this Agreement is possible, a construction which would preserve
such benefits shall control over any construction which would not preserve
such benefits or would render them doubtful.
Section 17.13. Reliance of Liquidity Providers. Each of the parties
hereto agrees and acknowledges that each Liquidity Provider shall be a third
party beneficiary of each of the representations and warranties made herein by
such party, and that each Liquidity Provider may rely on such representations
and warranties to the same extent as if such representations and warranties
were made to such Liquidity Provider directly. The terms of this Agreement
shall inure to the benefit of each Liquidity Provider, their respective
successors and permitted assigns.
ARTICLE 18
CONFIDENTIALITY
Section 18.01. Confidentiality. Each party hereto agrees (on behalf
of itself and each of its Affiliates, agents, directors, officers, employees
and representatives) to use reasonable precautions to keep confidential, in
accordance with its customary procedures for handling confidential information
of this nature, any non-public information supplied to it pursuant to this
Agreement which is identified by the Person supplying the same as being
confidential at the time the same is delivered to such party, provided that
nothing herein shall limit the disclosure of any such information (i) to the
extent required by statute, rule, regulation or judicial process, (ii) to
counsel for any of the parties hereto, (iii) to bank examiners or similar
regulatory authorities, auditors or accountants, (iv) in connection with any
litigation to which any one or more of the parties hereto is a party relating
to the transactions contemplated hereby or by any of the Operative Agreements,
(v) to an Affiliate of the parties hereto, (vi) to any assignee or participant
(or prospective assignee or participant) or other transferee so long as such
assignee or participant (or prospective assignee or participant) or other
transferee first executes and delivers to the respective party making such
assignment or participation an agreement in writing to be bound by the
provisions of this Section 18.01 or (vii) in the case of any Owner Participant
or the Owner Trustee (in its individual or trust capacity) to the Owner
Trustee (in its individual or trust capacity) or to the Owner Participant, as
the case may be.
IN WITNESS WHEREOF, the parties have caused this Participation
Agreement to be executed by their respective, duly authorized officers and this
Participation Agreement shall be effective this 22nd day of May, 1997.
LESSEE:
FEDERAL EXPRESS CORPORATION
By:__________________________________________
Name: Robert D. Henning
Title: Assistant Treasurer and Managing
Director - Structured Finance
INITIAL OWNER PARTICIPANT:
FEDERAL EXPRESS CORPORATION
By:__________________________________________
Name: Robert D. Henning
Title: Assistant Treasurer and Managing
Director - Structured Finance
OWNER TRUSTEE:
STATE STREET BANK AND TRUST COMPANY OF
CONNECTICUT, NATIONAL ASSOCIATION,
not in its individual capacity,
except as otherwise expressly provided herein,
but solely as Owner Trustee
By:__________________________________________
Name: Paul D. Allen
Title: Vice President
INDENTURE TRUSTEE:
FIRST SECURITY BANK,
NATIONAL ASSOCIATION,
not in its individual capacity except as
otherwise expressly provided herein,
but solely as Indenture Trustee
By:__________________________________________
Name: Greg A. Hawley
Title: Vice President
PASS THROUGH TRUSTEE:
FIRST SECURITY BANK,
NATIONAL ASSOCIATION,
not in its individual capacity except as
otherwise expressly provided herein,
but solely as Pass Through Trustee
By:__________________________________________
Name: Greg A. Hawley
Title: Vice President
SUBORDINATION AGENT:
FIRST SECURITY BANK,
NATIONAL ASSOCIATION,
not in its individual capacity except as
otherwise expressly provided herein,
but solely as Subordination Agent
By:__________________________________________
Name: Greg A. Hawley
Title: Vice President
SCHEDULE I
CERTIFICATE INFORMATION
1. Federal Express Corporation 1997-1 Pass Through Trust Class A
Federal Express Corporation Trust No. N583FE
Interest Rate: 7.50%
Maturity: January 15, 2016
Principal Amount: $34,220,000
2. Federal Express Corporation 1997-1 Pass Through Trust Class B
Federal Express Corporation Trust No. N583FE
Interest Rate: 7.52%
Maturity: January 15, 2016
Principal Amount: $12,811,000
3. Federal Express Corporation 1997-1 Pass Through Trust Class C
Federal Express Corporation Trust No. N583FE
Interest Rate: 7.65%
Maturity: January 15, 2009
Principal Amount: $13,988,000
SCHEDULE II
DEFINITIONS
(FEDERAL EXPRESS CORPORATION TRUST NO. N583FE)
GENERAL PROVISIONS
The following terms shall have the following meanings for all
purposes of the Operative Agreements (other than the Pass Through Agreement,
the Series Supplements, the Intercreditor Agreement and the Liquidity
Facilities) referred to below, unless otherwise defined in an Operative
Agreement or the context thereof shall otherwise require. In the case of any
conflict between the provisions of this Schedule and the provisions of any
Operative Agreement, the provisions of such Operative Agreement shall control
the construction of such Operative Agreement.
Unless the context otherwise requires, (i) references to agreements
shall be deemed to mean and include such agreements as amended and
supplemented from time to time, and (ii) references to parties to agreements
shall be deemed to include the successors and permitted assigns of such
parties.
DEFINED TERMS:
Additional Insured. As defined in Article 13 of the Lease.
Aeronautics Authority. As appropriate, the Federal Aviation
Administration and/or the Administrator of the Federal Aviation
Administration, any successor to the former United States Civil Aeronautics
Board, or any Person, governmental department, bureau, commission or agency
located in the United States succeeding to the functions of any of the
foregoing.
Affidavits. The affidavits of citizenship of the Owner Trustee and
the Owner Participant.
Affiliate. With respect to any Person, any other Person directly or
indirectly controlling, controlled by or under common control with such
Person. For the purposes of this definition, "control" (including "controlled
by" and "under common control with") shall mean the power, directly or
indirectly, to direct or cause the direction of the management and policies of
such Person whether through the ownership of voting securities or by contract
or otherwise. In no event shall the Owner Trustee or the Lessor be deemed an
Affiliate of the Owner Participant.
After-Tax Basis. A basis such that any payment received or deemed to
have been received by a Person shall be supplemented by a further payment to
such Person so that the sum of the two payments, after deduction of all Taxes
resulting from the receipt or accrual of such payments, shall be equal to the
payment received or deemed to have been received. In the case of amounts
payable to the Lessor, the Owner Participant, or any corporate Affiliate of
the Owner Participant, it shall be presumed that such Person is at all times
subject to Federal income tax at the maximum marginal rate generally
applicable to corporations from time to time and actual state, local and
foreign income taxes.
Air Carrier. Any U.S. Air Carrier and any "foreign air carrier" (as
defined in the Transportation Code) as to which there is in force a permit
granted under Section 41302 of the Transportation Code.
Aircraft. The Airframe to be sold by the Lessee to the Owner Trustee
as provided in the Participation Agreement and to be leased under the Lease
(or any permitted substitute airframe thereunder) together with three Engines
(whether each an initial Engine or a Replacement Engine) whether or not any of
such initial or Replacement Engines may from time to time be installed on such
Airframe or may be installed on any other airframe or on any other aircraft,
including any aircraft substituted pursuant to Section 11.03 of the Lease.
Prior to delivery of the initial Lease Supplement, references in the Operative
Agreements (including Section 3.03 of the Participation Agreement) to Aircraft
shall mean the McDonnell Douglas MD-11F airframe bearing FAA Registration
Number N1752K (currently anticipated to be changed to N583FE) and
Manufacturer's serial number 48421, together with three General Electric
CF6-80C2-D1F engines.
Airframe. The McDonnell Douglas MD-11F aircraft (excluding the
Engines or engines from time to time installed thereon) to be leased by the
Lessor to the Lessee pursuant to the Lease and the initial Lease Supplement
and having the United States FAA Registration Number initially and
manufacturer's serial number specified in the initial Lease Supplement,
including (i) all Parts in respect thereof and (ii) any Replacement Airframe
which may be substituted pursuant to Section 11.03 of the Lease.
Ancillary Agreement. Any written agreement of the Lessee to which the
Lessor is a party or to which the Lessor has consented in writing entered into
on or prior to the Delivery Date or any date thereafter in connection with the
transactions contemplated by the Operative Agreements, as such agreement may
be amended and supplemented from time to time with the consent of the Lessor
and delivered to the Owner Trustee, the Indenture Trustee, the Pass Through
Trustee, the Subordination Agent, each Liquidity Provider and the Owner
Participant.
Ancillary Agreement I. The Ancillary Agreement I (Federal Express
Corporation Trust No. N583FE), dated the Delivery Date, among the Lessee, the
Owner Trustee, not in its individual capacity, but solely as Owner Trustee,
the Owner Participant and the Indenture Trustee not in its individual
capacity, but solely as Indenture Trustee, as originally executed or as
amended, modified or supplemented with the consent of all the parties thereto.
Application. The application for registration of the Aircraft with
the FAA in the name of the Owner Trustee.
Appraisal. The report prepared by BK Associates, Inc. and to be
delivered to the Owner Participant (with a copy of the conclusions to the
Lessee) on the Delivery Date pursuant to Section 4.02(h) of the Participation
Agreement.
Average Life Date. For any Certificate, the date which follows the
prepayment date by a period equal to the Remaining Weighted Average Life of
such Certificate.
Bankruptcy Code. The Federal Bankruptcy Code of 1978, as amended, and
any successor thereto.
Bankruptcy Default. An event specified in Section 16.01(e), (f) or
(g) of the Lease which either does or, with the giving of notice or lapse of
time or both, would constitute an Event of Default.
Basic Rent. The aggregate periodic rent payable for the Aircraft
throughout the Basic Term pursuant to Section 3.02 of the Lease, adjusted
pursuant to Article 3 of the Lease.
Basic Term. The period commencing at the beginning of the day on the
Delivery Date and ending at the end of the day on March 15, 2019, or such
earlier date on which the Lease shall be terminated as provided therein.
Beneficial Interest. The interest of the Owner Participant (or the
Initial Owner Participant, as the case may be) under the Trust Agreement.
Bills of Sale. Collectively, the FAA Bill of Sale and the Warranty
Bill of Sale.
Business Day. Any day on which commercial banks are not authorized or
required to close in New York, New York, Memphis, Tennessee and the city in the
United States in which the office or agency is maintained by the Pass Through
Trustee for the payment of the Pass Through Certificates, and after the Lien
of the Indenture is discharged, Boston, Massachusetts.
Certificate Closing Date. The date of the closing with respect to the
purchase of Certificates by the Pass Through Trustee contemplated by Section
2.01(b) of the Participation Agreement.
Certificates. The Equipment Trust Certificates (Federal Express
Corporation Trust No. N583FE), issued by the Owner Trustee pursuant to the
Indenture and any certificate issued in exchange therefor or replacement
thereof pursuant to the Indenture.
Citizen of the United States. A citizen of the United States as
defined in Section 40102(a)(15) of the Transportation Code, or any analogous
part of any successor or substituted legislation or regulation at the time in
effect.
Class A Liquidity Provider. Has the meaning specified in Section
1.01 of the Intercreditor Agreement.
Class B Liquidity Provider. Has the meaning specified in Section
1.01 of the Intercreditor Agreement.
Closings. The closing with respect to the acquisition of the Pass
Through Certificates by the Underwriters and the closing with respect to the
acquisition of Certificates by the Pass Through Trustee.
Code. Except as otherwise provided, the Internal Revenue Code of
1986, as amended from time to time.
Collateral Account. The deposit account established and maintained
pursuant to Section 2.13 of the Indenture.
Collateral Account Control Agreement. The Collateral Account Control
Agreement dated as of May 1, 1997 among State Street Bank and Trust Company,
the Indenture Trustee and the Owner Trustee.
Commitment. The amount of the Owner Participant's participation in
the Purchase Price required to be made available or paid as provided in
Section 3.02 of the Participation Agreement.
Corporate Trust Administration. The Corporate Trust Administration
office of the Owner Trustee located at 750 Main Street, Hartford, Connecticut
06103, Attention: Corporation Trust Administration, or such other office at
which the Owner Trustee's corporate trust business shall be administered which
the Owner Trustee shall have specified by notice in writing to the Lessee, the
Owner Participant and the Indenture Trustee.
Corporate Trust Department. The Corporate Trust Department office of
the Indenture Trustee located at 79 South Main Street, Salt Lake City, Utah
84111, Attention: Corporate Trust Department, or such other office at which
the Indenture Trustee's corporate trust business shall be administered which
the Indenture Trustee shall have specified by notice in writing to the Lessee,
the Owner Participant and the Owner Trustee.
CRAF Program. Has the meaning specified in Section 7.01(f) of the
Lease.
Cut-Off Date. December 15, 1997.
Debt Portion. The amount specified as such on Schedule IV to the
Participation Agreement.
Debt Rate. The weighted average (based on Outstanding principal
amount) rate of interest on the Certificates issued pursuant to the Indenture.
Default. Any event or condition which, with the lapse of time or the
giving of notice, or both, would constitute an Event of Default.
Delivery Date. The date on which the Aircraft is delivered and sold
by the Lessee to the Lessor and leased by the Lessor to the Lessee under the
Lease, which date shall also be the date of the initial Lease Supplement.
Delivery Notice. Notice of the Aircraft's Delivery Date, given by
the Lessee as provided in Section 3.01 of the Participation Agreement and
including any notice with respect to a postponed Delivery Date given by the
Lessee pursuant to Section 3.03(c) of the Participation Agreement.
EBO Date. Has the meaning specified in Section 4.02(a)(F) of the
Lease.
EBO Price. Has the meaning specified in Section 4.02(a)(F) of the
Lease.
Eligible Deposit Account. Either (a) a segregated account with an
Eligible Institution or (b) a segregated trust account with the corporate
trust department of a depository institution with corporate trust powers
organized under the laws of the United States or any state thereof, or the
District of Columbia, and whose deposits are insured by the Federal Deposit
Insurance Corporation, provided that such institution also has a combined
capital and surplus of at least $100,000,000 and a rating of A or better from
the Thomson Bank Watch.
Eligible Institution. A depository institution organized under the
laws of the United States or any one of the states thereof, or the District of
Columbia, or any domestic branch of a foreign bank, which in any such case at
all times (a) has either (x) a long-term unsecured debt rating of at least Aa2
by Moody's or (y) a short-term certificate of deposit rating of P-1 by
Moody's, (b) has either (x) a long-term unsecured debt rating of a least AA by
S&P or (y) a short-term certificate of deposit rating of A-1+ by S&P and (c)
is a member of the Federal Deposit Insurance Corporation.
Engine. Each of the three General Electric CF6-80C2-D1F engines
listed by its manufacturer's serial number in the initial Lease Supplement and
leased pursuant to the Lease, whether or not from time to time installed on
the Airframe or installed on any other airframe or on any other aircraft, and
any Replacement Engine which may from time to time be substituted for an
Engine pursuant to Section 7.02(a)(vii), 10.03, 11.03, 11.04 or 12.02 of the
Lease, together with all Parts related thereto. Except as otherwise provided,
at such time as a Replacement Engine shall be so substituted and the Engine
for which the substitution is made shall be released from the Lien of the
Indenture, such replaced Engine shall cease to be an "Engine" under the Lease.
The term "Engines" means, as of any date of determination, all Engines then
leased to the Lessee pursuant to the Lease.
Engine Consent. The Engine Consent dated as of May 1, 1997, executed
by the Engine Manufacturer.
Engine Manufacturer. General Electric Company, a New York
corporation.
Engine Warranty Assignment. The Engine Warranty Assignment (Federal
Express Corporation Trust No. N583FE), dated as of May 1, 1997 between the
Lessor and the Lessee.
ERISA. The Employee Retirement Income Security Act of 1974, as
amended.
ERISA Plan. An employee benefit plan subject to Title I of ERISA, or
an individual retirement account or plan subject to Section 4975 of the Code.
Estimated Expense Amount. Has the meaning specified in Section
10.01(a) of the Participation Agreement.
Event of Default. Each of the events specified in Article 16 of the
Lease.
Event of Loss. Any of the following events with respect to the
Aircraft, the Airframe or any Engine: (i) loss of such property or its use (A)
due to theft or disappearance for a period in excess of 30 days (or such
longer period not to exceed 60 days from the end of such 30 day period if and
so long as the location of such property is known and the Lessee is pursuing
the recovery thereof) or to the end of the Term, if less, unless such event
constitutes an Event of Loss under clause (i)(B) or clause (ii) below, or (B)
due to the destruction, damage beyond economic repair or rendition of such
property permanently unfit for normal use by Lessee for any reason whatsoever;
(ii) any damage to such property which results in an insurance settlement with
respect to such property on the basis of a total loss, or constructive or
compromised total loss; (iii) (1) condemnation, confiscation or seizure of, or
requisition of title to such property by the Government, any foreign
government or purported government or any agency or instrumentality thereof,
or (2) condemnation, confiscation, or seizure of, or requisition or taking of,
use of such property (A) by a foreign government, or instrumentality or agency
of any such foreign government, or any purported government or instrumentality
or agency thereof for a period in excess of 180 days or the end of the Term,
if less, or (B) by the Government for a period extending beyond the Term
provided that no Event of Loss shall be deemed to have occurred, and the Term
shall be extended automatically for a period of up to six months beyond the
end of the Term in the event that the Aircraft or the Airframe or any Engine
is requisitioned by the Government pursuant to an activation as part of the
CRAF Program described in Section 7.02(a)(iv) of the Lease; or (iv) as a
result of any law, rule, regulation, order or other action by the Aeronautics
Authority or other governmental body having jurisdiction, the use of the
Aircraft or Airframe in the normal course of air transportation of cargo shall
have been prohibited for a period of four (4) consecutive months, unless the
Lessee, prior to the expiration of such four (4) month period, shall be
diligently carrying forward all steps which are necessary and desirable to
permit the normal use of the Aircraft or Airframe provided, however, that an
Event of Loss shall be deemed to have occurred if (x) the Lessee fails to
continue diligently carrying forward all such steps or (y) the use of the
Aircraft or the Airframe in the normal course of air transportation of cargo
shall have been prohibited for a period of an additional 8 months following
such 4 month period or (z) unless waived by the Lessor, the Term shall have
expired. The date of such Event of Loss shall be (t) the 30th day or the 90th
day, as the case may be, following loss of such property or its use due to
theft or disappearance; (u) the date of any destruction, damage beyond
economic repair or rendition of such property permanently unfit for normal
use; (v) the date of any insurance settlement on the basis of a total loss or
constructive or compromised total loss; (w) the date of any condemnation,
confiscation, seizure or requisition of title of such property; (x) the
earlier of the 181st day following condemnation, confiscation, seizure or
requisition for use of such property by a foreign government or
instrumentality or agency thereof or the end of the Term; (y) the last day of
the Term in the case of requisition for use of such property by the Government
or (z) the last day of the 4 month or additional 8 month period, referred to
in clause (iv) above or, if earlier, the last day of the Term (unless waived
by the Lessor). An Event of Loss with respect to the Aircraft shall be deemed
to have occurred if any Event of Loss occurs with respect to the Airframe.
Excepted Payments. Collectively, (i) indemnity or other payments of
expenses paid or payable by the Lessee in respect of the Owner Participant,
the Owner Trustee in its individual capacity or any of their respective
successors, permitted assigns, directors, officers, employees, servants and
agents or Affiliates, pursuant to Article 8, 9, or 10 or any indemnity
hereafter granted to the Owner Participant or the Owner Trustee in its
individual capacity pursuant to Section 7.01(e), Article 9 or Section 11.03(a)
of the Lease, (ii) proceeds of public liability insurance (or government
indemnities in lieu thereof) in respect of the Aircraft payable as a result of
insurance claims paid for the benefit of, or losses suffered by, the Owner
Trustee or the Indenture Trustee in their respective individual capacities or
by the Owner Participant, or their respective successors, permitted assigns or
Affiliates, (iii) proceeds of insurance maintained with respect to the
Aircraft by the Owner Participant (whether directly or through the Owner
Trustee) maintained in accordance with the provisions of but not required
under Article 13 of the Lease, (iv) all right, title and interest of the Owner
Participant in, to and under the Tax Indemnity Agreement and payments of
Supplemental Rent by the Lessee in respect of any amounts payable under the Tax
Indemnity Agreement, (v) any amounts payable by the Lessee to the Owner
Participant or the Owner Trustee in its individual capacity, after the release
thereof from the Lien of the Indenture, (vi) subject to Section 3.05 of the
Lease, payments constituting increases in Basic Rent attributable to payments
arising pursuant to Section 5 of the Tax Indemnity Agreement, (vii) any right
to demand, collect or otherwise receive and enforce the payment of any amount
described in clauses (i) through (vi) above and (viii) any payments in respect
of interest to the extent attributable to the payments referred to in clauses
(i) through (vi) above.
Expense; Expenses. Have the meaning specified in Section 9.01(a) of
the Participation Agreement.
FAA Bill of Sale. The bill of sale for the Airframe on AC Form
8050-2, or such other form as may be approved by the Aeronautics Authority,
executed by the Lessee in favor of the Owner Trustee and to be dated the
Delivery Date.
Fair Market Renewal Term. A term with respect to which the Lessee has
exercised its option to renew the Lease pursuant to the second paragraph of
Section 4.01(a) thereof and with respect to which the conditions set forth in
such Section 4.01(a) are met.
Fair Market Rental. An amount determined on the basis of, and equal
in amount to, the rental which would be obtained in an arm's-length
transaction between an informed and willing lessee and an informed and willing
lessor unaffiliated with such lessee, neither being under any compulsion to
lease. In such determination, except for purposes of Section 17.01 of the
Lease, it shall be assumed that the Aircraft is in at least the condition
required under the Lease in the case of return of the Aircraft pursuant to
Article 12 of the Lease and Fair Market Rental shall be determined in
accordance with the provisions of Section 4.03 of the Lease. For purposes of
Section 17.01 of the Lease, such determination shall be made on an "as is,
where is" basis by a qualified independent appraiser selected by the Lessor
and the costs and expenses of the appraisal shall be borne by the Lessee,
unless the Lessor has not obtained possession of the Aircraft pursuant to such
Section 17.01, in which case an appraiser shall not be appointed and such Fair
Market Rental shall be deemed to be zero.
Fair Market Value. An amount determined on the basis of, and equal
in amount to, the value which would be obtained in an arm's-length transaction
between an informed and willing purchaser under no compulsion to buy and an
informed and willing seller unaffiliated with such purchaser and under no
compulsion to sell, assuming the Aircraft (or other property) is unencumbered
by the Lease. In such determination, except for purposes of Section 17.01 of
the Lease, it shall be assumed that the Aircraft is in at least the condition
required under the Lease in the case of return of the Aircraft pursuant to
Article 12 of the Lease and Fair Market Value shall be determined in
accordance with the provisions of Section 4.03 of the Lease. For purposes of
Section 17.01 of the Lease, such determination shall be made on an "as is,
where is" basis by a qualified independent appraiser selected by the Lessor
and the costs and expenses of the appraisal shall be borne by the Lessee,
unless the Lessor has not obtained possession of the Aircraft free and clear
of all Liens and unencumbered by the Lease pursuant to such Section 17.01, in
which case an appraiser shall not be appointed and such Fair Market Value
shall be deemed to be zero.
Federal Aviation Administration; FAA. The United States Federal
Aviation Administration and any successor agency or agencies thereto.
Final Drawing. Has the meaning specified in Section 1.01 of the
Intercreditor Agreement.
Fixed Renewal Rent. Semi-annual payments of rent during the Fixed
Renewal Term equal to the lesser of (i) Fair Market Rental as determined as of
the commencement of such Fixed Renewal Term and (ii) the amount set forth in
Ancillary Agreement I.
Fixed Renewal Term. The term with respect to which the Lessee has
exercised its option to renew the Lease pursuant to the first paragraph of
Section 4.01(a) thereof and with respect to which the conditions set forth in
such Section 4.01(a) are met.
FSB. First Security Bank, National Association, a national banking
association.
Government. The United States of America or an agency or
instrumentality thereof the obligations of which bear the full faith and
credit of the United States of America.
GTA. The General Terms Agreement dated as of July 3, 1991 between the
Engine Manufacturer and the Lessee related to the purchase by the Lessee of the
Engines as originally executed or as modified, amended or supplemented in
accordance with the terms thereof, but only insofar as the General Terms
Agreement relates to the Engines, to the extent assigned to the Owner Trustee
pursuant to the Engine Warranty Assignment.
Holder of a Certificate; Certificate Holder; Holder. As of any
particular time, the Person in whose name a Certificate shall be registered
(but not including the holder of any Pass Through Certificate).
Indemnitee. Each of SSB, in its individual capacity and as Owner
Trustee and Lessor, the Subordination Agent, in its individual capacity and in
its capacity as Subordination Agent, each Liquidity Provider, the Owner
Participant, the Indenture Trustee, in its individual capacity and as trustee,
and any successor (including any trustee which may succeed to the Lessor's
interest under the Lease), Affiliate, assign, officer, director, employee,
agent and servant of any of the foregoing, the Lessor's Estate and the Trust
Indenture Estate. Neither the Pass Through Trustee nor any holder of a Pass
Through Certificate shall be deemed to be an Indemnitee.
Indenture. The Trust Indenture and Security Agreement (Federal
Express Corporation Trust No. N583FE), dated as of May 1, 1997, between the
Lessor and the Indenture Trustee, as supplemented by the Indenture and
Security Agreement Supplement.
Indenture and Security Agreement Supplement. The Indenture and
Security Agreement Supplement No. 1 (Federal Express Corporation Trust No.
N583FE) to be dated the Delivery Date, substantially in the form of Exhibit A
to the Indenture.
Indenture Default. Any event or condition which, with the lapse of
time or the giving of notice, or both, would constitute an Indenture Event of
Default.
Indenture Documents. Has the meaning specified in the Granting
Clause of the Indenture.
Indenture Event of Default. Each of the events specified in Section
7.01 of the Indenture.
Indenture Trustee. First Security Bank, National Association, a
national banking association, not in its individual capacity but solely as
Indenture Trustee under the Indenture.
Indenture Trustee's Liens. Any Lien against, on or with respect to
the Aircraft, the Lessor's Estate or the Trust Indenture Estate or any part
thereof resulting from (i) claims against the Indenture Trustee not related to
the administration of the Trust Indenture Estate or any transactions pursuant
to the Indenture or any document included in the Trust Indenture Estate, (ii)
any act or omission of the Indenture Trustee which is not related to the
transactions contemplated by the Operative Agreements or is in violation of
any of the terms of the Operative Agreements or (iii) Taxes imposed against
the Indenture Trustee in its individual capacity against which the Lessee has
not indemnified (and is not obligated to indemnify) the Indenture Trustee in
such capacity.
Independent Appraisal. An appraisal conducted pursuant to Section
4.03 of the Lease.
Independent Investment Banker. An independent investment banking
institution of national standing appointed by the Lessee that is independent
in fact, does not have any direct financial interests, or any material
indirect financial interest, in the Lessee or any Affiliate of the Lessee, and
is not connected with the Lessee or any Affiliate of the Lessee, as an
officer, employee, promoter, underwriter, trustee, partner, director or Person
performing similar functions; provided, that if the Indenture Trustee shall
not have received written notice of such an appointment at least 10 days prior
to the Prepayment Date, "Independent Investment Banker" shall mean such an
institution appointed by the Indenture Trustee.
Initial Owner Participant. Federal Express Corporation, a Delaware
corporation.
Intercreditor Agreement. The Intercreditor Agreement dated as of May
1, 1997, among the Pass Through Trustee, the Class A Liquidity Provider, the
Class B Liquidity Provider and the Subordination Agent.
Interest Drawing. Has the meaning specified in Section 1.01 of the
Intercreditor Agreement.
Invoice. The invoice for the Aircraft given by the Lessee to the
Lessor.
Lease. The Lease Agreement (Federal Express Corporation Trust No.
N583FE) dated as of May 1, 1997, entered into by the Lessor and the Lessee
concurrently with the execution and delivery of the Indenture, including,
without limitation, supplementation by one or more Lease Supplements entered
into pursuant to the applicable provisions of the Lease.
Lease Supplement. The Lease Supplement No. 1 (Federal Express
Corporation Trust No. N583FE) to be dated the Delivery Date, substantially in
the form of Exhibit A to the Lease.
Lease Term. The period commencing on the Delivery Date and ending at
the end of the Basic Term.
Lessee. Federal Express Corporation, a Delaware corporation.
Lessee Documents. Has the meaning set forth in Section 6.01(b) of the
Participation Agreement.
Lessor. State Street Bank and Trust Company of Connecticut, National
Association, a national banking association, not in its individual capacity
but solely as Owner Trustee under the Trust Agreement.
Lessor's Estate. All estate, right, title and interest of the Owner
Trustee in and to the Collateral Account, the Liquid Collateral, the Aircraft,
the Lease, any Lease Supplement, the Participation Agreement, the Bills of
Sale, the Modification Agreement, the GTA, the Engine Warranty Assignment, the
Engine Consent, any warranty with respect to the Airframe and the Engines, all
amounts of Basic Rent, Renewal Rent and Supplemental Rent, including without
limitation, insurance proceeds (other than insurance proceeds payable to or
for the benefit of either the Owner Trustee in its individual capacity or the
Owner Participant) and requisition, indemnity or other payments of any kind
for or with respect to the Aircraft (except amounts owing to the Owner
Participant or to the Owner Trustee in its individual capacity, or to any of
their respective directors, officers, employees and agents pursuant to
Articles 8 and 9 of the Participation Agreement). Notwithstanding the
foregoing, "Lessor's Estate" shall not include any Excepted Payment.
Lessor's Liens. Liens against, on or with respect to the Aircraft,
the Lessor's Estate or the Trust Indenture Estate or any part thereof, title
thereto or any interest therein arising as a result of (i) claims against the
Lessor, in its individual capacity or as Owner Trustee, the Owner Participant
or any Affiliate of such Owner Participant, in each case not related to the
transactions contemplated by the Operative Agreements, (ii) acts or omissions
of the Lessor in its individual capacity or as Owner Trustee, and, in the case
of the Lessor in its individual capacity, arising from its gross negligence or
willful misconduct either not related to the transactions contemplated by or
expressly prohibited under the Operative Agreements and any act or omission of
the Owner Participant or any Affiliate of such Owner Participant which is not
related to the transactions contemplated by the Operative Agreements or is in
violation of any of the terms of the Operative Agreements, (iii) Taxes or
Expenses imposed against the Lessor, in its individual capacity or as Owner
Trustee, or the Owner Participant or any Affiliate of such Owner Participant,
the Lessor's Estate or the trust created by the Trust Agreement which are not
required to be indemnified against by the Lessee pursuant to the Tax Indemnity
Agreement or by reason of Section 8.01(b) or 9.01(b) of the Participation
Agreement, or (iv) claims against the Lessor or the Owner Participant arising
from the voluntary transfer by the Lessor or the Owner Participant of its
interests in the Aircraft other than a transfer of the Aircraft resulting from
an action or at the direction of the Lessee pursuant to Section 4.02(a) or
Article 8, 9, 10 or 11 of the Lease and other than a transfer pursuant to the
exercise of the remedies set forth in Article 17 of the Lease.
Lien. Any mortgage, pledge, lien, charge, encumbrance, lease or
security interest or other similar interest.
Liquid Collateral. All amounts and securities deposited from time to
time in the Collateral Account and all the products, investments, earnings and
proceeds of the foregoing, including, but not limited to, all proceeds of the
investment or conversion thereof, voluntary or involuntary, into cash,
Specified Investments or other property, all rights to payment of any and
every kind, and other forms of obligations, and instruments and other property
which at any time constitute all or part or are included in the proceeds of
any of the foregoing.
Liquidity Facility. Has the meaning specified in Section 1.01 of the
Intercreditor Agreement.
Liquidity Provider. Has the meaning specified in Section 1.01 of the
Intercreditor Agreement.
Losses. Has the meaning specified in Section 17.02(a) of the
Participation Agreement.
Loss Payee. Has the meaning specified in Section 13.02(b)(i) of the
Lease.
Majority in Interest of Certificate Holders. As of a particular date
of determination, the Holders of more than 50% of the aggregate unpaid
principal amount of all Certificates outstanding as of such date excluding for
purposes of this definition any Certificates held by (i) the Owner Trustee or
the Owner Participant unless all Certificates then outstanding shall be held
by such Owner Participant, (ii) the Lessee or (iii) any Affiliate of any
thereof.
Make-Whole Premium. An amount determined as of the day before the
applicable Prepayment Date (or date of purchase, as the case may be) which an
Independent Investment Banker determines to be equal to the excess, if any, of
(i) the present value of the remaining scheduled payments of such principal
amount or portion thereof and interest thereon (excluding interest accrued
from the immediately preceding Payment Date to such Prepayment Date or date of
purchase, as the case may be) to the Maturity of such Certificate in
accordance with generally accepted financial practices assuming a 360-day year
consisting of twelve 30-day months at a discount rate equal to the Treasury
Yield, all as determined by the Independent Investment Banker over (ii) the
outstanding principal amount of such Certificate plus accrued interest.
Mandatory Document Terms. The terms set forth on Schedule V to the
Participation Agreement.
Mandatory Economic Terms. The terms set forth on Schedule VI to the
Participation Agreement.
Manufacturer. McDonnell Douglas Corporation, a Maryland corporation.
Maturity. With respect to any Certificate, the date on which the
final principal amount of such Certificate is scheduled to be due and payable.
Modification Agreement. The Aircraft Modification Agreement dated as
of December 1, 1995 between the Lessee and the Manufacturer providing for the
refurbishing and reconfiguration of the Aircraft including any warranties
relating thereto, but only to the extent that the foregoing relates to the
Aircraft, to the extent assigned to the Owner Trustee pursuant to the Warranty
Bill of Sale.
Moody's. Moody's Investors Service, Inc.
Net Present Value of Rents. The net present value, as of the
Delivery Date, of Basic Rent set forth in Schedule II of the Lease, discounted
at a rate per semi-annual period equal to the Debt Rate.
Non-U.S. Person. Any Person other than a U.S. Person.
Obsolete Parts. Parts which the Lessee in good faith determines to be
obsolete or no longer suitable or appropriate for use on the Airframe or any
Engine.
Officer's Certificate. When delivered pursuant to the Indenture, a
certificate signed by a Responsible Officer of the Lessee or the Owner
Trustee, as the case may be, and delivered to the Indenture Trustee. Each
such certificate shall include the statements provided for in Section 15.07 of
the Indenture.
Operative Agreements. The Participation Agreement, the Trust
Agreement, the Bills of Sale, the Modification Agreement, the GTA, the Engine
Warranty Assignment, the Lease, the Lease Supplement, the Owner Trustee
Guaranty, if any, any Ancillary Agreement entered into by or with the written
consent of the Indenture Trustee, which by its terms is an Operative
Agreement, the Certificates outstanding at the time of reference, the
Indenture, the Indenture and Security Agreement Supplement, the Engine
Consent, each Liquidity Facility, the Intercreditor Agreement, the Collateral
Account Control Agreement and the Tax Indemnity Agreement.
Opinion of Counsel. When delivered pursuant to the Indenture, a
written opinion of legal counsel, who in the case of counsel (a) for the
Lessee may be (i) an attorney employed by the Lessee who is generally
empowered to deliver such written opinions, (ii) Davis Polk & Wardwell or a
successor firm or (iii) other counsel designated by the Lessee and reasonably
satisfactory to the Indenture Trustee and (b) for the Owner Trustee or the
Indenture Trustee, an attorney selected by such Person and, in the case of the
Owner Trustee, reasonably satisfactory to the Indenture Trustee.
Outstanding. When used with respect to Certificates, as of the date
of determination and subject to the provisions of Section 10.04 of the
Indenture, all Certificates theretofore executed and delivered under the
Indenture, with the exception of the following:
(i) Certificates theretofore cancelled by the Indenture Trustee or
delivered to the Indenture Trustee for cancellation pursuant to
Section 2.08 of the Indenture or otherwise;
(ii) Certificates for which prepayment money in the necessary amount
has been theretofore deposited with the Indenture Trustee in trust
for the Holders of such Certificates pursuant to Section 14.01 of the
Indenture; provided, that if such Certificates are to be prepaid,
notice of such prepayment has been duly given pursuant to the
Indenture or provision therefor satisfactory to the Indenture Trustee
has been made; and
(iii) Certificates in exchange for or in lieu of which other
Certificates have been executed and delivered pursuant to Article II
of the Indenture.
Owner Participant. The Person to whom on the Delivery Date (or, if
earlier, the Transfer Date) the Initial Owner Participant shall transfer its
Beneficial Interest pursuant to Section 3.02 of the Participation Agreement
and any successors thereto, and any Person to which the Owner Participant
transfers, in accordance with the Trust Agreement, its right, title and
interest in and to the Operative Agreements and the Lessor's Estate.
Owner Trustee. SSB, not in its individual capacity except as
otherwise expressly stated, but solely as Owner Trustee under the Trust
Agreement.
Owner Trustee Guarantor. The provider, if any, of an Owner Trustee
Guaranty.
Owner Trustee Guaranty. Any guaranty delivered in compliance with
Section 11.01(b)(ii) of the Participation Agreement.
Owner's Economic Return. The Owner Participant's anticipated net
after-tax yield and aggregate after-tax cash flow during the Basic Term,
utilizing the multiple investment sinking fund method of analysis, computed on
the basis of the same methodology and assumptions as were utilized by the
Owner Participant in determining Basic Rent, Stipulated Loss Value and
Termination Value percentages and EBO Price, as such assumptions may be
adjusted for events which have been the basis of adjustments to Rent pursuant
to Section 3.04 of the Lease.
Participation Agreement. The Participation Agreement (Federal Express
Corporation Trust No. N583FE), dated as of May 1, 1997, among the Lessee, the
Owner Trustee not in its individual capacity except as otherwise expressly
provided therein, but solely as owner trustee, the Owner Participant, the
Indenture Trustee not in its individual capacity except as otherwise expressly
provided therein, but solely as indenture trustee, the Pass Through Trustee
not in its individual capacity except as otherwise expressly provided therein,
but solely as pass through trustee and the Subordination Agent not in its
individual capacity except as otherwise expressly provided therein, but solely
as subordination agent.
Parts. All appliances, parts, components, instruments, appurtenances,
accessories, furnishings and other equipment of whatever nature (other than
complete Engines or engines) which may from time to time be incorporated or
installed in or attached to the Airframe or any Engine or title to which
remains vested in the Lessor pursuant to Article 8 of the Lease.
Pass Through Agreement. The Pass Through Trust Agreement dated as of
May 1, 1997 between the Lessee and the Pass Through Trustee.
Pass Through Certificates. Any of the Pass Through Certificates,
1997-1-A, the Pass Through Certificates, 1997-1-B or the Pass Through
Certificates, 1997-1-C, in each case as issued by the related Pass Through
Trust; and "Pass Through Certificates" means all of the Pass Through
Certificates issued by each of the Pass Through Trusts.
Pass Through Closing Date. The Business Day on which the sale of the
Pass Through Certificates to the Underwriters pursuant to the Underwriting
Agreement takes place.
Pass Through Trust. The Federal Express Corporation 1997-1 Pass
Through Trust Class A, Federal Express Corporation 1997-1 Pass Through Trust
Class B and Federal Express Corporation 1997-1 Pass Through Trust Class C, in
each case formed pursuant to the related Series Supplement in accordance with
the Pass Through Agreement; and "Pass Through Trusts" means all of such Pass
Through Trusts.
Pass Through Trustee. First Security Bank, National Association, a
national banking association, in its capacity as Pass Through Trustee under
the Pass Through Agreement and each Pass Through Trust.
Past Due Rate. In respect of (A) any amount payable to the Owner
Participant or the Owner Trustee a rate per annum during the period from and
including the due date to but excluding the date on which such amount is paid
in full equal to 2% plus the Debt Rate and (B) any principal of or interest on
any Certificate or any other amount payable under the Indenture, any
Certificate or any other Operative Agreement that is not paid when due
(whether at Maturity, by acceleration, by optional or mandatory prepayment or
otherwise) to any Holder, the Indenture Trustee or the Pass Through Trustee, a
rate per annum during the period from and including the due date to but
excluding the date on which such amount is paid in full equal to (i) in the
case of any such amount payable to the Holder of any Certificate, 2% plus the
interest rate applicable to such Certificate and (ii) in the case of any other
such amount, 2% plus the Debt Rate.
Payment Date. Each January 15 and July 15 commencing on July 15,
1997.
Payment Default. Any event specified in Section 16.01(a) or 16.01(b)
of the Lease which with the giving of notice or lapse of time or both would
constitute an Event of Default.
Permitted Investments. Those investments enumerated in Section
23.01(a) (i), (ii), (iii) and (iv) of the Lease.
Person. Any individual, sole proprietorship, partnership, joint
venture, joint stock company, trust, unincorporated organization, association,
corporation, institution, entity or government (federal, state, local, foreign
or any agency, instrumentality, division or body thereof).
Preliminary Notice. Has the meaning specified in Section 4.01(a) of
the Lease.
Premium Termination Date. With respect to the Series A Certificates,
December 27, 2011, with respect to the Series B Certificates, February 5, 2010
and with respect to the Series C Certificates, March 22, 2007.
Prepayment Date. Has the meaning specified in Section 6.02(b) of the
Indenture.
Prepayment Price. Has the meaning specified in Section 6.02(b) of the
Indenture.
Principal Amount. With respect to a Certificate means the stated
original principal amount of such Certificate and, with respect to all
Certificates, means the aggregate stated original principal amounts of all
Certificates.
Property. Any right or interest in or to property of any kind
whatsoever, whether real, personal or mixed and whether tangible or intangible.
Proposed Termination Date. Has the meaning specified in Section
10.01(a) of the Lease.
Purchase Price. The amount specified as such in Ancillary Agreement
I.
Rating Agencies. Collectively, at any time, each nationally
recognized rating agency which shall have been requested to rate the Pass
Through Certificates and which shall then be rating the Pass Through
Certificates. The initial Rating Agencies will be Moody's and S&P.
Rating Agency Confirmation. With respect to any Operative Agreement
that is to be modified in any material respect on the Delivery Date or the
Transfer Date, if applicable, a written confirmation from each of the Rating
Agencies that the use of such Operative Agreement with such modifications
would not result in (i) a reduction of the rating for any Class of Pass
Through Certificates below the then current rating for such Class of Pass
Through Certificates or (ii) a withdrawal or suspension of the rating of any
Class of Pass Through Certificates.
Record Date. With respect to Payment Dates under the Indenture
(except a date for payment of defaulted interest), December 31 for January 15
Payment Dates and June 30 for July 15 Payment Dates, whether or not such date
is a Business Day.
Recourse Amount. Has the meaning specified in Section 17.10 of the
Participation Agreement.
Refinancing. A non-recourse loan to the Lessor arranged pursuant to
Section 15.01 of the Participation Agreement.
Register. Has the meaning set forth in Section 3.02 of the Indenture.
Registrar. Has the meaning set forth in Section 3.02 of the
Indenture.
Regulation D. Regulation D of the Board of Governors of the Federal
Reserve System (or any successor), as the same may be modified and
supplemented and in effect from time to time.
Remaining Weighted Average Life. On a given date with respect to any
Certificate the number of days equal to the quotient obtained by dividing (i)
the sum of each of the products obtained by multiplying (a) the amount of each
then remaining scheduled payment of principal of such Certificate by (b) the
number of days from and including such prepayment date to but excluding the
dates on which each such payment of principal is scheduled to be made; by (ii)
the then outstanding principal amount of such Certificate.
Renewal Rent. The amount payable by the Lessee as rent in accordance
with Section 4.01 of the Lease during any Renewal Term.
Renewal Term. Any Fixed Renewal Term or Fair Market Renewal Term with
respect to which the Lessee has exercised its option to renew the Lease
pursuant to Section 4.01(a) thereof.
Rent. All payments due from the Lessee under the Lease as Basic Rent,
Renewal Rent and Supplemental Rent, collectively.
Rent Payment Date. March 15, 2019 and each January 15 and July 15
commencing on January 15, 1998, and continuing thereafter during the Term.
Reoptimization Date. Has the meaning set forth in Section 2.03(b) of
the Participation Agreement.
Replacement Aircraft. Any aircraft substituted for the Aircraft
pursuant to Section 11.03(a) of the Lease.
Replacement Airframe. Has the meaning set forth in Section 11.03 of
the Lease.
Replacement Engine. A General Electric CF6-80C2-D1F engine (or an
engine of the same or another manufacturer) of equal or greater value,
remaining useful life and utility as the Engine being replaced, together with
all Parts relating to such engine; provided, however, that if such replacement
engine is not a General Electric CF6-80C2-D1F engine, such replacement engine
must then be commonly used in the commercial aviation industry on McDonnell
Douglas MD-11 airframes.
Responsible Officer. With respect to the Owner Trustee (except for
purposes of the Trust Agreement in which case the definition of Responsible
Officer set forth in Section 3.10 of the Trust Agreement is applicable) or the
Indenture Trustee, any officer in its Corporate Trust Administration, as the
case may be, designated by such Person to perform obligations under the
Operative Agreements, and with respect to any other party, any corporate
officer or (except in the case of the Owner Participant) other employee of a
party who, in the normal performance of his or her operational
responsibilities, with respect to the subject matter of any covenant,
agreement or obligation of such party pursuant to any Operative Agreement,
would have responsibility for and knowledge of such matter and the
requirements of any Operative Agreement with respect thereto.
S&P. Standard & Poor's Ratings Group.
Scheduled Delivery Date. The Delivery Date specified in the Delivery
Notice pursuant to Section 3.01 of the Participation Agreement.
SEC. The Securities and Exchange Commission of the United States and
any successor agencies or authorities.
Secured Obligations. Has the meaning specified in the Granting
Clause of the Indenture.
Securities Act. The Securities Act of 1933, as amended.
Series "A" or "Series A Certificates". Certificates issued and
designated as "Series A" under the Indenture, in the Principal Amount and
maturities and bearing interest as specified in Exhibit B to the Indenture
under the heading "Series A".
Series "B" or "Series B Certificates". Certificates issued and
designated as "Series B" under the Indenture, in the Principal Amount and
maturities and bearing interest as specified in Exhibit B to the Indenture
under the heading "Series B".
Series "C" or "Series C Certificates". Certificates issued and
designated as "Series C" under the Indenture, in the Principal Amount and
maturities and bearing interest as specified in Exhibit B to the Indenture
under the heading "Series C".
Series Supplement or Series Supplements. The Series Supplement
1997-1-A to be executed and delivered by the Lessee and the Pass Through
Trustee, the Series Supplement 1997-1-B to be executed and delivered by the
Lessee and the Pass Through Trustee or the Series Supplement 1997-1-C to be
executed and delivered by the Lessee and the Pass Through Trustee.
Sinking Fund Redemption Date. Has the meaning specified in Section
6.06 of the Indenture.
Sinking Fund Redemption Price. Has the meaning specified in Section
6.06 of the Indenture.
Special Aviation Counsel. Daugherty, Fowler & Peregrin.
Specified Investments. Shall mean (a) direct obligations of the
United States of America or obligations fully guaranteed by the United States
of America; (b) commercial paper rated A-1/P-1 by S&P and Moody's,
respectively or, if such ratings are unavailable, rated by any nationally
recognized rating organization in the United States equal to the highest
rating assigned by such rating organization; (c) investments in negotiable
certificates of deposit, time deposits, banker's acceptances, commercial paper
or other direct obligations of, or obligations guaranteed by, commercial banks
organized under the laws of the United States or of any political subdivision
thereof (or any U.S. branch of a foreign bank) with issuer ratings of at least
B/C by Thomson Bankwatch, having maturities no later than 90 days following
the date of such investment; (d) overnight federal funds transactions with
members of the Federal Reserve System arranged by federal funds brokers; or
(e) overnight repurchase agreements with respect to the securities described
in clause (a) above entered into with an office of a bank or trust company
which is located in the United States of America or any bank or trust company
which is organized under the laws of the United States or any state thereof
and has capital, surplus and undivided profits aggregating at least $500
million.
SSB. State Street Bank and Trust Company of Connecticut, National
Association, a national banking association.
Stipulated Loss Value. As of any Stipulated Loss Value Determination
Date during the Basic Term, the amount determined by multiplying the Purchase
Price by the percentage set forth in Schedule III of the Lease under the
heading "Stipulated Loss Value Factor" opposite such date (as such Schedule
III may be adjusted from time to time as provided in Section 3.04 of the
Lease), and during any Renewal Term, the amount determined pursuant to Section
4.01(b) of the Lease. Notwithstanding any other provisions of the Lease or
the Participation Agreement or the Indenture, each Stipulated Loss Value for
the Aircraft shall be, under any circumstances and in any event, an amount,
together with so much of the arrears portion of Basic Rent due and owing
through the date of payment of Stipulated Loss Value as does not constitute an
Excepted Payment, at least sufficient to pay in full as of such date of
payment the aggregate unpaid principal amount of and accrued interest on the
Certificates outstanding on such date of payment. Subject to the immediately
preceding sentence, it is understood and agreed that the amounts set forth on
Schedule III of the Lease, for dates other than Rent Payment Dates on which
arrears Basic Rent is due, fully reflect appropriate Basic Rent accruals and
credits of unearned Basic Rent and, accordingly, no further accrual or credit
shall be required whenever Stipulated Loss Value is to be calculated with
reference to any such date.
Stipulated Loss Value Determination Date. Each date set forth on
Schedule III of the Lease.
Subordination Agent. First Security Bank, National Association, a
national banking association, not in its individual capacity but solely as
Subordination Agent.
Supplemental Rent. (a) All amounts, liabilities and obligations
which the Lessee assumes or agrees to perform or pay under the Lease or under
the Participation Agreement or Tax Indemnity Agreement or any Ancillary
Agreement or any other Operative Agreement to SSB, the Lessor, the Owner
Participant, the Indenture Trustee, the Subordination Agent, any Liquidity
Provider or others, including, without limitation, payments of Stipulated Loss
Value, EBO Price and amounts calculated by reference to Termination Value, and
all amounts required to be paid by Lessee under the agreements, covenants and
indemnities contained in the Lease or in the Participation Agreement or the
Tax Indemnity Agreement or any other Operative Agreement, but excluding Basic
Rent and (b) all amounts that the Owner Trustee is obligated to pay in
accordance with clause (b) of the last paragraph of Section 2.04 of the
Indenture.
Tax. Has the meaning set forth in Section 8.01(a) of the
Participation Agreement.
Tax Indemnity Agreement. The Tax Indemnity Agreement (Federal
Express Corporation Trust No. N583FE), dated as of May 1, 1997, between the
Lessee and the Owner Participant.
Term. The Basic Term and any Renewal Term unless the Lease is
terminated earlier pursuant to its terms.
Termination Date. A Rent Payment Date during the Basic Term that is
on or after the fifth anniversary of the Delivery Date in the case of Article
10 of the Lease, and in the case of (i) Section 4.02(a)(A) of the Lease the
Rent Payment Date falling on January 15, 2012 or January 15, 2017, as the case
may be, (ii) Section 4.02(a)(D) or (E) of the Lease, a Rent Payment Date that
is on or after the fifth anniversary of the Delivery Date and (iii) Section
4.02(a)(F) of the Lease, January 15, 2014.
Termination Value. As of any Termination Date, the amount determined
by multiplying the Purchase Price by the percentage set forth in Schedule IV
of the Lease under the heading "Termination Value Factor" opposite such
Termination Date (as such Schedule IV may be adjusted from time to time as
provided in Section 3.04 of the Lease). Notwithstanding any other provisions
of the Lease, the Participation Agreement or the Indenture, each Termination
Value shall be, under any circumstances and in any event, an amount, together
with so much of the arrears portion of Basic Rent due and owing through the
date of payment of any amount calculated by reference to Termination Value as
does not constitute an Excepted Payment, at least sufficient to pay in full as
of such date of payment the aggregate unpaid principal amount of and accrued
interest on the Certificates outstanding on such date of payment. Subject to
the immediately preceding sentence, it is understood and agreed that the
amounts set forth on Schedule IV of the Lease, for dates other than Rent
Payment Dates on which arrears Basic Rent is due, fully reflect appropriate
Basic Rent accruals and credits of unearned Basic Rent and, accordingly, no
further accrual or credit shall be required whenever Termination Value is to
be calculated with reference to any such date.
Transfer Date. Has the meaning set forth in Section 2.02(b) of the
Participation Agreement.
Transaction Costs. Those costs and expenses set forth in Section
10.01(a) of the Participation Agreement.
Transportation Code. Title 49 of the United States Code, as amended
and in effect on the date of the Lease or as subsequently amended, or any
successor or substituted legislation at the time in effect and applicable, and
the regulations promulgated pursuant thereto.
Treasury Yield. At the time of determination with respect to any
Certificate, the interest rate (expressed as a semi-annual equivalent and as a
decimal and, in the case of United States Treasury bills, converted to a bond
equivalent yield) determined to be the per annum rate equal to the semi-annual
yield to maturity for United States Treasury securities maturing on the
Average Life Date on such Certificate and trading in the public securities
markets either as determined by interpolation between the most recent weekly
average yield to maturity for two series of United States Treasury securities,
trading in public securities markets, (i) one maturing as close as possible to,
but earlier than, the Average Life Date of such Certificate and (ii) the other
maturing as close as possible to, but later than, the Average Life Date of
such Certificate. In each case as published in the most recent H.15(519) or,
if a weekly average yield to maturity for United States Treasury securities
maturing on the Average Life Date of such Certificate is reported on the most
recent H.15 (519), such weekly average yield to maturity as published in such
H.15(919). "H.15(519)" means the weekly statistical release designated as
such, or any successor publication, published by the Board of Governors of the
Federal Reserve System. The date of determination of a Make-Whole Premium
will be the third Business Day prior to the applicable prepayment date and the
"most recent H.15(519)" means the H.15(519) published prior to the close of
business on the third Business Day prior to the applicable prepayment date.
Trust Agreement. The Trust Agreement (Federal Express Corporation
Trust No. N583FE), dated as of May 1, 1997, between the Owner Participant and
the Owner Trustee in its individual capacity.
Trust Estate. The Lessor's Estate.
Trust Indenture Act. The Trust Indenture Act of 1939, as amended.
Trust Indenture Estate. All estate, right, title and interest of the
Indenture Trustee in and to any of the property, rights, interests and
privileges granted to the Indenture Trustee pursuant to the Granting Clause of
the Indenture, other than Excepted Payments and any and all other rights of
the Owner Trustee or the Owner Participant expressly reserved to the Owner
Trustee or the Owner Participant pursuant to the Indenture.
Underwriters. Morgan Stanley & Co. Incorporated, First Chicago
Capital Markets, Inc., Goldman, Sachs & Co. and J.P. Morgan & Co.
Underwriting Agreement. The Underwriting Agreement dated May 22, 1997
among the Lessee and the Underwriters.
United States, U.S. or US. The United States of America.
U.S. Air Carrier. Any United States air carrier as to which there is
in force a certificate issued pursuant to Section 41102(a) or Section 41103 of
the Transportation Code, and as to which there is in force an air carrier
operating certificate issued pursuant to Chapter 447 of the Transportation
Code and Part 121 of the regulations under such Transportation Code, for
aircraft capable of carrying ten (10) or more individuals or 6,000 pounds or
more of cargo, or which may operate as an air carrier by certification or
otherwise under any successor or substitute provision thereof or in absence
thereof.
U.S. Person. A Person described in Section 7701(a)(30) of the Code.
Warranty Bill of Sale. The full warranty bill of sale covering the
Aircraft (and specifically referring to each Engine) executed by the Lessee,
as seller in favor of the Owner Trustee, as buyer, and to be dated the
Delivery Date.
SCHEDULE III
PERMITTED COUNTRY LIST
Australia Luxembourg
Austria Netherlands
Belgium New Zealand
Canada Norway
Denmark Philippines
Finland Portugal
France Republic of China (Taiwan)
Germany Singapore
Greece Sweden
Iceland Switzerland
Ireland Thailand
Japan United Kingdom
SCHEDULE IV
DEBT PORTION
Debt Portion $61,019,000
- ------------
SCHEDULE V
MANDATORY DOCUMENT TERMS
Any amendment and restatement of the Operative Agreements on the Delivery
Date or, if earlier, the Transfer Date:
1. May not modify in any material adverse respect the Granting
Clause of the Indenture so as to deprive the Holders of a first
priority security interest in and mortgage lien on the Aircraft
and the Lease or to eliminate any of the obligations secured
thereby or otherwise modify in any material adverse respect as
regards the interests of the Holders, the Subordination Agent,
the Liquidity Providers or the Indenture Trustee the provisions
of Article II, V or VI or Section 7.01, 7.02, 7.10, 7.11, 9.08,
13.01, 13.02, 13.07 or 15.04 or Article VIII of the Indenture;
2. May not modify in any material adverse respect as regards the
interests of the Holders, the Subordination Agent, the Liquidity
Providers or the Indenture Trustee the provisions of Section
3.05, 3.06, 11.03(a)(x), 13.01(c)(i), the second sentence of
19.01, 20.01, 22.01, 22.03, 26.03, 27.01 or 27.02 of the Lease
or otherwise modify the terms of the Lease so as to deprive the
Indenture Trustee of rights expressly granted to the "Indenture
Trustee" therein;
3. May not modify in any material adverse respect as regards the
interests of the Holders, the Subordination Agent, the Liquidity
Providers or the Indenture Trustee the provisions of Section
4.02(e), 4.02(f), 17.02, 17.11, 17.12 or 17.13 of the
Participation Agreement or of the provisions of Section 4.01(j)
of the Participation Agreement so as to eliminate the
requirement to deliver to the Indenture Trustee the legal
opinions to be provided to such Persons thereunder (recognizing
that the lawyers rendering such opinions may be changed) or of
the provisions of Section 6.03(b) of the Participation
Agreement as regards the rights of the Indenture Trustee
thereunder or otherwise modify the terms of the Participation
Agreement to deprive the Subordination Agent, the Liquidity
Providers or the Indenture Trustee of any indemnity or right of
reimbursement in its favor for Expenses or Taxes;.
4. May not modify in any material adverse respect as regards the
interests of the holders of the Pass Through Certificates, the
Subordination Agent, the Liquidity Providers or the Indenture
Trustee, the definition of "Make-Whole Premium" or
"Supplemental Rent" in Schedule II to the Participation
Agreement; and
5. Shall contain representations and warranties of the Owner
Participant substantially similar to those set forth on Exhibit
A attached hereto.
Notwithstanding the foregoing, any such Mandatory Document Term
may be modified to correct or supplement any such provision which may
be defective or to cure any ambiguity or correct any mistake,
provided that any such action shall not materially adversely affect
the interests of the Holders, the Subordination Agent, the Liquidity
Providers, the Indenture Trustee or the holders of the Pass Through
Certificates.
Exhibit A
to
Schedule V
Section ____. Representations, Warranties and Covenants of Owner
Participant. (a) Representations, Warranties and Covenants. In addition to
and without limiting its other representations and warranties provided for in
this Article __, the Owner Participant represents and warrants that:
(i) it is a corporation duly incorporated and validly existing in
good standing under the laws of the State of ________ and it has full
corporate power, authority and legal right to carry on its present business
and operations, to own or lease its Properties and to enter into and to
carry out the transactions contemplated by this Agreement, the Tax
Indemnity Agreement, the Trust Agreement and the other Operative Agreements
to which it is or is to be a party;
(ii) the execution, delivery and performance by it of this
Agreement, the Tax Indemnity Agreement, the Trust Agreement and the other
Operative Agreements to which it is or is to be a party have been duly
authorized by all necessary corporate action on its part and do not require
any governmental approvals that would be required to be obtained by the
Owner Participant;
(iii) neither the execution, delivery or performance by the Owner
Participant of this Agreement, the Tax Indemnity Agreement, the Trust
Agreement and the other Operative Agreements to which it is or is to be a
party nor compliance with the terms and provisions hereof or thereof,
conflicts or will conflict with or results or will result in a breach or
violation of any of the terms, conditions or provisions of, or will require
any consent or approval under any law, governmental rule or regulation
applicable to the Owner Participant or the charter documents, as amended,
or bylaws, as amended, of the Owner Participant or any order, writ,
injunction or decree of any court or governmental authority against the
Owner Participant or by which it or any of its Properties is bound or any
indenture, mortgage or contract or other agreement or instrument to which
the Owner Participant is a party or by which it or any of its Properties is
bound, or constitutes or will constitute a default thereunder or results or
will result in the imposition of any Lien upon any of its Properties;
(iv) this Agreement, the Tax Indemnity Agreement, the Trust Agreement
and the other Operative Agreements to which it is or is to be a party have
been or on the Delivery Date will be duly executed and delivered by the
Owner Participant and constitute or on the Delivery Date will constitute
the legal, valid and binding obligation of the Owner Participant
enforceable against it in accordance with their terms except as such
enforceability may be limited by bankruptcy, insolvency, moratorium,
reorganization or other similar laws or equitable principles of general
application to or affecting the enforcement of creditors' rights
(regardless of whether enforceability is considered in a proceeding in
equity or at law);
(v) it is not in default under any mortgage, deed of trust,
indenture, lease or other instrument or agreement to which the Owner
Participant is a party or by which it or any of its Properties may be
bound, or in violation of any applicable law, which default or violation
would have a material adverse effect on the financial condition, business
or operations of the Owner Participant or an adverse effect on the ability
of the Owner Participant to perform its obligations under this Agreement
and the other Operative Agreements to which it is or is to be a party;
(vi) there are no pending or, to the knowledge of the Owner
Participant, threatened actions, suits, investigations or proceedings
against the Owner Participant before any court, administrative agency or
tribunal which are expected to materially adversely affect the ability of
the Owner Participant to perform its obligations under any of the Operative
Agreements to which it is or is to be a party, and the Owner Participant
knows of no pending or threatened actions or proceedings before any court,
administrative agency or tribunal involving it in connection with the
transactions contemplated by the Operative Agreements;
(vii) neither the execution and delivery by it of this Agreement,
the Tax Indemnity Agreement, the Trust Agreement or the other Operative
Agreements to which it is or is to be a party nor the performance of its
obligations hereunder or thereunder requires the consent or approval of or
the giving of notice to, the registration with, or the taking of any other
action in respect of, any governmental authority or agency that would be
required to be obtained or taken by the Owner Participant except for
filings contemplated by this Agreement;
(viii) no part of the funds to be used by it to acquire the interests
to be acquired by the Owner Participant under this Agreement constitutes
assets (within the meaning of ERISA and any applicable rules and
regulations) of any employee benefit plan subject to Title I of ERISA or of
any plan or individual retirement account subject to Section 4975 of the
Code;
(ix) it is a "U.S. Person" as defined in Section 7701(a)(30) of the
Code and is not a tax resident of another country and if it shall at any
time cease to be such a "U.S. Person" or shall become a tax resident of
another country, it shall furnish to the Agent and each Loan Certificate
Holder an indemnity, in form and substance reasonably satisfactory to such
Loan Certificate Holder, for any Taxes that may be imposed on such Holder
as a result of the Owner Participant's failure to be such a "U.S. Person"
or as a result of its being a tax resident of another country, and the
Owner Participant shall be personally liable for any debt service to the
extent that the receipt of rentals is reduced by reason of any withholding
Taxes that result from such failure to be such a "U.S. Person" or from
being a tax resident of another country;
(x) it has a consolidated tangible net worth of not less than
$75,000,000; and
(xi) it is or will be a Citizen of the United States on the Delivery
Date or will have in place arrangements which enable the Aircraft to
qualify for registration in the United States.
Notwithstanding the foregoing or anything else contained in this
Agreement, the Owner Participant makes no representation or warranty in this
Agreement with respect to laws, rules or regulations relating to aviation or
to the nature or use of the equipment owned by the Owner Trustee, including,
without limitation, the airworthiness, value, condition, workmanship, design,
patent or trademark infringement, operation, merchantability or fitness for
use of the Aircraft, other than such laws, rules or regulations relating to
the citizenship requirements of the Owner Participant under applicable
aviation law.
(b) Lessor's Liens. The Owner Participant further represents,
warrants and covenants that there are no Lessor's Liens attributable to it (or
an Affiliate thereof) against, on or with respect to the Aircraft or the
Lessor's Estate or the Trust Indenture Estate, and that there will not be any
Lessor's Lien attributable to it (or an Affiliate thereof) against, on or with
respect to the Aircraft or the Lessor's Estate or the Trust Indenture Estate
attributable to it (or an Affiliate thereof) on the [Transfer Date][Delivery
Date. The Owner Participant agrees with and for the benefit of the Lessee,
the Owner Trustee, the Indenture Trustee and the Loan Participants and any
subsequent Holders of the Loan Certificates that the Owner Participant will,
at its own cost and expense, take such action as may be necessary (by bonding
or otherwise, so long as neither the Lessee's operation and use of the
Aircraft nor the validity and priority of the Lien of the Indenture is
impaired) to duly discharge and satisfy in full, promptly after the same first
becomes known to the Owner Participant, any Lessor's Lien against, on or with
respect to the Aircraft or the Lessor's Estate or the Trust Indenture Estate
attributable to the Owner Participant (or an Affiliate thereof), provided,
however, that the Owner Participant shall not be required to discharge or
satisfy such Lessor's Lien which is being contested by the Owner Participant
in good faith and by appropriate proceedings so long as such proceedings do
not involve any material danger of the sale, forfeiture or loss of the
Aircraft or the Lessor's Estate or the Trust Indenture Estate or any interest
in any thereof or otherwise materially adversely affect the validity or
priority of the Lien of the Indenture.
(c) Reimbursement. Without limiting any other rights the parties
hereto may have as a result of any breach by the Owner Participant of its
obligations in Section ____(b) hereof, the Owner Participant agrees to
reimburse each other party hereto for all reasonable legal fees and expenses
of counsel that may be incurred by any such party as a result of the failure
of the Owner Participant to discharge and satisfy any such Lessor's Lien in
accordance with the terms of Section ____(b) hereof.
(d) Assignment of Interests of Owner Participant. At any time after
the Delivery Date, and subject to the conditions set forth in this Section
____(d), the Owner Participant may assign, convey or otherwise transfer to a
single institutional investor or an Affiliate of an institutional investor all
(but not less than all) of the Beneficial Interest, provided that it gives the
Lessee and the Indenture Trustee at least 10 Business Days' notice of such
assignment, conveyance or other transfer and provided further that the Owner
Participant shall remain liable for all obligations of the Owner Participant
under the Trust Agreement and the Operative Agreements to which the Owner
Participant is a party to the extent (but only to the extent) relating to the
period on or before the date of such transfer and provided that the transferee
agrees by a written instrument to assume primary liability for all obligations
as an Owner Participant under the Trust Agreement and the other Operative
Agreements to which such Owner Participant is a party relating to the period
after the date of transfer. Any such transferee shall (a) be (i) a bank,
savings institution, finance company, leasing company or trust company,
national banking association acting for its own account or in a fiduciary
capacity as trustee or agent under any pension, retirement, profit sharing or
similar trust or fund, insurance company, fraternal benefit society or
corporation acting for its own account having a combined capital and surplus
(or, if applicable, consolidated tangible net worth or its equivalent) of not
less than $75,000,000, (ii) a subsidiary of any Person described in clause (i)
where such Person provides (A) support for the obligations assumed by such
transferee subsidiary reasonably satisfactory to the Lessee, the Owner Trustee
and the Indenture Trustee or (B) an unconditional guaranty of such transferee
subsidiary's obligations, or (iii) an Affiliate of the transferring Owner
Participant, so long as such Affiliate has a combined capital and surplus (or,
if applicable, consolidated tangible net worth or its equivalent) of not less
than $75,000,000, (b) be legally capable of binding itself to the obligations
of the Owner Participant and shall expressly agree to assume all obligations
of the Owner Participant under the Trust Agreement and this Agreement and (c)
provide representations substantially similar to those contained in Section
7.03(a) hereof. In the event of any such assignment, conveyance or transfer,
the transferee shall become a party to the Trust Agreement and shall agree to
be bound by all the terms of and will undertake all of the obligations of the
Owner Participant contained in the Trust Agreement and the other Operative
Agreements. A transferee hereunder shall be (i) a "U.S. Person" as defined in
Section 7701(a)(30) of the Code (or any successor provision thereto) and if
the transferee shall cease to be such a "U.S. Person" then each Certificate
Holder shall be provided an indemnity in form and substance satisfactory to
each such Certificate Holder for any Taxes that may be imposed on such
Certificate Holders (currently or in the future) due to such transferee's
failure to be such a "U.S. Person" and (ii) a Citizen of the United States or
has established a voting trust, voting powers or other arrangement reasonably
satisfactory to the Indenture Trustee and the Lessee to permit the Owner
Trustee to be the registered owner of the Aircraft under the Transportation
Code. A transferee hereunder shall not be, and in acquiring the Beneficial
Interest shall not use the assets of, an employee benefit plan subject to
Title I of ERISA or an individual retirement account or a plan subject to
Section 4975 of the Code. Assuming the truth of the representations made in
Sections 6.01(m) and 7.06 hereof and compliance with Section 2.18 of the
Indenture, no such assignment, conveyance or transfer shall violate any
provision of law or regulation or create a relationship which would be in
violation thereof. The Owner Trustee shall not be on notice of or otherwise
bound by any such assignment, conveyance or transfer unless and until it shall
have received an executed counterpart of the instrument of such assignment,
conveyance or transfer. Upon any such disposition by the Owner Participant to
a transferee as above provided, the transferee shall be deemed the "Owner
Participant" or "Trustor" for all purposes of the Operative Agreements, and
shall be deemed to have made all the payments previously made by its
transferor and to have acquired the same interest in the Lessor's Estate as
theretofore held by its transferor; and each reference therein to the "Owner
Participant" or "Trustor" shall thereafter be deemed a reference to such
transferee. Notwithstanding anything to the contrary contained in this
Section ____(d), in no event shall the Owner Participant transfer its interest
in the Beneficial Interest to any entity whose business is that of a
nationwide or worldwide overnight or expedited delivery small package air
courier, cargo or freight deliverer or which competes with the Lessee in such
lines of business. The Lessee agrees that it will reasonably cooperate with
the Owner Participant in effecting an assignment of the Owner Participant's
interests including, without limitation, providing letters to any successor
Owner Participant permitting such successor Owner Participant to rely on any
opinions provided by the Lessee on the Delivery Date.
(e) Actions with Respect to Lessor's Estate, Etc. The Owner
Participant agrees that it will not take any action to subject the Lessor's
Estate or the trust established by the Trust Agreement, as debtor, to the
reorganization or liquidation provisions of the Bankruptcy Code or any other
applicable bankruptcy or insolvency statute.
(f) Citizenship. The Owner Participant agrees, solely for the
benefit of the Lessee, the Pass Through Trustee, the Indenture Trustee and the
Owner Trustee, that if at any time on or after the Delivery Date when the
Aircraft is registered or the Lessee proposes to register the Aircraft in the
United States (i) either it shall cease to be, or an event which has been
publicly disclosed has occurred of which the Owner Participant has knowledge
and which will cause the Owner Participant to cease to be, a Citizen of the
United States and (ii) the Aircraft shall or would therefore become ineligible
for registration in the name of the Owner Trustee under the Transportation
Code and regulations then applicable thereunder, then the Owner Participant
shall give notice thereof to the Lessee, the Owner Trustee and the Indenture
Trustee and shall (at its own expense and without any reimbursement or
indemnification from the Lessee) immediately (and in any event within a period
of 20 days) (x) effect a voting trust or other similar arrangement, (y)
transfer in accordance with the terms of this Agreement and the Trust
Agreement all its rights, title and interest in and to such Trust Agreement,
the Lessor's Estate and this Agreement, or (z) take any other alternative
action that would prevent any deregistration, or maintain or permit the United
States registration, of the Aircraft. It is agreed that the Owner Participant
shall be liable to pay promptly on request (A) to each of the other parties
hereto any actual damages (but not consequential damages) suffered by any such
other party to the extent the same shall result from the representation and
warranty of the Owner Participant in the first sentence of Section _____
hereof proving to be untrue as of the Delivery Date; and (B) to the Lessee,
the Indenture Trustee or the Pass Through Trustee for any damages actually
(but not consequentially) incurred by the Lessee, the Indenture Trustee and
the Pass Through Trustee as a result of the Owner Participant's failure to
comply with its obligations pursuant to the first sentence of this Section
_____(f); provided, that, the foregoing shall not restrict the Pass Through
Trustee or the Indenture Trustee from asserting against the Owner Participant
any damages actually incurred by the holders of any Pass Through Certificates.
Each party hereto agrees, upon the request and at the sole expense of the
Owner Participant, to cooperate with the Owner Participant in complying with
its obligations under the provisions of the first sentence of this Section
_____(f), but without any obligation on the part of such other party to take
any action believed by it in good faith to be unreasonably burdensome to such
party or materially adverse to its business interests.
SCHEDULE VI
MANDATORY ECONOMIC TERMS
Certificates
Loan to Aircraft Value Ratio on any July 15 Payment Date (with the value of the
Aircraft set forth in the Prospectus Supplement (as defined in the Pass Through
Agreement) in "Description of the Equipment Trust Certificates - Loan to Value
Ratios of Equipment Trust Certificates") shall be as follows:
Series A: not in excess of 40.0%
Series B: not in excess of 55.0%
Series C: not in excess of 75.0%
Average Life:
The average life may not be more than 14.5 years in the case of the Series A
Certificates and 13.0 in the case of the Series B Certificates and in the
case of the Series C Certificates may not be so great as to cause the
average life of the Pass Through Certificates, 1997-1-C, to be more than
10.0 years (but in each case may be decreased by any amount).
Final Maturity Date:
Series A: may not be extended beyond January 15, 2018
Series B: may not be extended beyond January 15, 2018
Series C: may not be extended beyond January 15, 2014
Debt Rate (computed on the basis of a 360-day year consisting of twelve 30-day
months, payable semi-annually in arrears) shall be as follows:
Series A: 7.50%
Series B: 7.52%
Series C: 7.65%
Past Due Rate: Debt Rate plus 2% per annum.
Payment Dates: January 15 and July 15.
Make-Whole Premium: As provided in Article V of the Indenture.
Redemption and Purchase: As provided in the Indenture.
Lease
Term: The Basic Term shall expire by its terms on or
after final maturity date of the Series A
Certificates.
Rent Payment Dates: January 15 and July 15.
Minimum Rent: Basic Rent due and payable on each Payment Date
shall be at least sufficient to pay in full, as of
such Payment Date (assuming timely payment of the
Certificates prior to such Date), the aggregate
principal amount of scheduled installments due on
the Certificates outstanding on such Payment Date.
Supplemental Rent: Shall be sufficient to cover the sums described in
the definition of such term in Schedule II to the
Participation Agreement.
Stipulated Loss Value: At all times shall be equal to or greater than the
outstanding principal amount of the Certificates
together with accrued interest thereon. The
interest rate payable with respect to Stipulated
Loss Value may not be modified.
Termination Value: At all times shall be equal to or greater than the
outstanding principal amount of the Certificates
together with accrued interest thereon. The
interest rate payable with respect to Termination
Value Date may not be modified.
All-risk hull insurance: Shall not be less than Stipulated Loss Value,
subject to Lessee's right to self-insure on terms
no more favorable to Lessee in any material respect
than those set forth in Article 13 of the Lease.
Minimum Liability
Insurance Amount: $300,000,000.
Past Due Rate: As set forth in the definition thereof in Schedule
II to the Participation Agreement.
Participation Agreement
The Indenture Trustee, the Subordination Agent and the Liquidity Providers
indemnified against Expenses and Taxes to the extent set forth in Articles 8
and 9 of the Participation Agreement as in effect on the Certificate Closing
Date.
SCHEDULE V
MANDATORY DOCUMENT TERMS
Any amendment and restatement of the Operative Agreements on the Delivery
Date or, if earlier, the Transfer Date:
1. May not modify in any material adverse respect the Granting
Clause of the Indenture so as to deprive the Holders of a first
priority security interest in and mortgage lien on the Aircraft
and the Lease or to eliminate any of the obligations secured
thereby or otherwise modify in any material adverse respect as
regards the interests of the Holders, the Subordination Agent,
the Liquidity Providers or the Indenture Trustee the provisions
of Article II, V or VI or Section 7.01, 7.02, 7.10, 7.11, 9.08,
13.01, 13.02, 13.07 or 15.04 or Article VIII of the Indenture;
2. May not modify in any material adverse respect as regards the
interests of the Holders, the Subordination Agent, the
Liquidity Providers or the Indenture Trustee the provisions
of Section 3.05, 3.06, 11.03(a)(x), 13.01(c)(i), the second
sentence of 19.01, 20.01, 22.01, 22.03, 26.03, 27.01 or
27.02 of the Lease or otherwise modify the terms of the
Lease so as to deprive the Indenture Trustee of rights
expressly granted to the "Indenture Trustee" therein;
3. May not modify in any material adverse respect as regards the
interests of the Holders, the Subordination Agent, the
Liquidity Providers or the Indenture Trustee the provisions
of Section 4.02(e), 4.02(f), 17.02, 17.11, 17.12 or 17.13 of
the Participation Agreement or of the provisions of Section
4.01(j) of the Participation Agreement so as to eliminate
the requirement to deliver to the Indenture Trustee the
legal opinions to be provided to such Persons thereunder
(recognizing that the lawyers rendering such opinions may be
changed) or of the provisions of Section 6.03(b) of the
Participation Agreement as regards the rights of the
Indenture Trustee thereunder or otherwise modify the terms
of the Participation Agreement to deprive the Subordination
Agent, the Liquidity Providers or the Indenture Trustee of
any indemnity or right of reimbursement in its favor for
Expenses or Taxes;.
4. May not modify in any material adverse respect as regards the
interests of the holders of the Pass Through Certificates, the
Subordination Agent, the Liquidity Providers or the Indenture
Trustee, the definition of "Make-Whole Premium" or
"Supplemental Rent" in Schedule II to the Participation
Agreement; and
5. Shall contain representations and warranties of the Owner
Participant substantially similar to those set forth on Exhibit
A attached hereto.
Notwithstanding the foregoing, any such Mandatory Document Term
may be modified to correct or supplement any such provision which may
be defective or to cure any ambiguity or correct any mistake,
provided that any such action shall not materially adversely affect
the interests of the Holders, the Subordination Agent, the Liquidity
Providers, the Indenture Trustee or the holders of the Pass Through
Certificates.
Exhibit A
to
Schedule V
Section ____. Representations, Warranties and Covenants of Owner
Participant. (a) Representations, Warranties and Covenants. In addition to
and without limiting its other representations and warranties provided for in
this Article __, the Owner Participant represents and warrants that:
(i) it is a corporation duly incorporated and validly existing in
good standing under the laws of the State of ________ and it has full
corporate power, authority and legal right to carry on its present business
and operations, to own or lease its Properties and to enter into and to
carry out the transactions contemplated by this Agreement, the Tax
Indemnity Agreement, the Trust Agreement and the other Operative Agreements
to which it is or is to be a party;
(ii) the execution, delivery and performance by it of this
Agreement, the Tax Indemnity Agreement, the Trust Agreement and the other
Operative Agreements to which it is or is to be a party have been duly
authorized by all necessary corporate action on its part and do not require
any governmental approvals that would be required to be obtained by the
Owner Participant;
(iii) neither the execution, delivery or performance by the Owner
Participant of this Agreement, the Tax Indemnity Agreement, the Trust
Agreement and the other Operative Agreements to which it is or is to be a
party nor compliance with the terms and provisions hereof or thereof,
conflicts or will conflict with or results or will result in a breach or
violation of any of the terms, conditions or provisions of, or will require
any consent or approval under any law, governmental rule or regulation
applicable to the Owner Participant or the charter documents, as amended,
or bylaws, as amended, of the Owner Participant or any order, writ,
injunction or decree of any court or governmental authority against the
Owner Participant or by which it or any of its Properties is bound or any
indenture, mortgage or contract or other agreement or instrument to which
the Owner Participant is a party or by which it or any of its Properties is
bound, or constitutes or will constitute a default thereunder or results or
will result in the imposition of any Lien upon any of its Properties;
(iv) this Agreement, the Tax Indemnity Agreement, the Trust
Agreement and the other Operative Agreements to which it is or is to be
a party have been or on the Delivery Date will be duly executed and
delivered by the Owner Participant and constitute or on the Delivery
Date will constitute the legal, valid and binding obligation of the
Owner Participant enforceable against it in accordance with their terms
except as such enforceability may be limited by bankruptcy, insolvency,
moratorium, reorganization or other similar laws or equitable principles
of general application to or affecting the enforcement of creditors'
rights (regardless of whether enforceability is considered in a
proceeding in equity or at law);
(v) it is not in default under any mortgage, deed of trust,
indenture, lease or other instrument or agreement to which the Owner
Participant is a party or by which it or any of its Properties may be
bound, or in violation of any applicable law, which default or violation
would have a material adverse effect on the financial condition, business
or operations of the Owner Participant or an adverse effect on the ability
of the Owner Participant to perform its obligations under this Agreement
and the other Operative Agreements to which it is or is to be a party;
(vi) there are no pending or, to the knowledge of the Owner
Participant, threatened actions, suits, investigations or proceedings
against the Owner Participant before any court, administrative agency or
tribunal which are expected to materially adversely affect the ability of
the Owner Participant to perform its obligations under any of the Operative
Agreements to which it is or is to be a party, and the Owner Participant
knows of no pending or threatened actions or proceedings before any court,
administrative agency or tribunal involving it in connection with the
transactions contemplated by the Operative Agreements;
(vii) neither the execution and delivery by it of this Agreement,
the Tax Indemnity Agreement, the Trust Agreement or the other Operative
Agreements to which it is or is to be a party nor the performance of its
obligations hereunder or thereunder requires the consent or approval of or
the giving of notice to, the registration with, or the taking of any other
action in respect of, any governmental authority or agency that would be
required to be obtained or taken by the Owner Participant except for
filings contemplated by this Agreement;
(viii) no part of the funds to be used by it to acquire the
interests to be acquired by the Owner Participant under this Agreement
constitutes assets (within the meaning of ERISA and any applicable rules
and regulations) of any employee benefit plan subject to Title I of
ERISA or of any plan or individual retirement account subject to Section
4975 of the Code;
(ix) it is a "U.S. Person" as defined in Section 7701(a)(30) of
the Code and is not a tax resident of another country and if it shall at
any time cease to be such a "U.S. Person" or shall become a tax
resident of another country, it shall furnish to the Agent and each Loan
Certificate Holder an indemnity, in form and substance reasonably
satisfactory to such Loan Certificate Holder, for any Taxes that may be
imposed on such Holder as a result of the Owner Participant's failure to
be such a "U.S. Person" or as a result of its being a tax resident of
another country, and the Owner Participant shall be personally liable
for any debt service to the extent that the receipt of rentals is
reduced by reason of any withholding Taxes that result from such failure
to be such a "U.S. Person" or from being a tax resident of another
country; and
(x) it has a consolidated tangible net worth of not less than
$75,000,000.
Notwithstanding the foregoing or anything else contained in this
Agreement, the Owner Participant makes no representation or warranty in this
Agreement with respect to laws, rules or regulations relating to aviation or
to the nature or use of the equipment owned by the Owner Trustee, including,
without limitation, the airworthiness, value, condition, workmanship, design,
patent or trademark infringement, operation, merchantability or fitness for
use of the Aircraft, other than such laws, rules or regulations relating to
the citizenship requirements of the Owner Participant under applicable
aviation law.
(b) Lessor's Liens. The Owner Participant further represents,
warrants and covenants that there are no Lessor's Liens attributable to it (or
an Affiliate thereof) against, on or with respect to the Aircraft or the
Lessor's Estate or the Trust Indenture Estate, and that there will not be any
Lessor's Lien attributable to it (or an Affiliate thereof) against, on or with
respect to the Aircraft or the Lessor's Estate or the Trust Indenture Estate
attributable to it (or an Affiliate thereof) on the Delivery Date. The Owner
Participant agrees with and for the benefit of the Lessee, the Owner Trustee,
the Indenture Trustee and the Loan Participants and any subsequent Holders of
the Loan Certificates that the Owner Participant will, at its own cost and
expense, take such action as may be necessary (by bonding or otherwise, so
long as neither the Lessee's operation and use of the Aircraft nor the
validity and priority of the Lien of the Indenture is impaired) to duly
discharge and satisfy in full, promptly after the same first becomes known to
the Owner Participant, any Lessor's Lien against, on or with respect to the
Aircraft or the Lessor's Estate or the Trust Indenture Estate attributable to
the Owner Participant (or an Affiliate thereof), provided, however, that the
Owner Participant shall not be required to discharge or satisfy such Lessor's
Lien which is being contested by the Owner Participant in good faith and by
appropriate proceedings so long as such proceedings do not involve any
material danger of the sale, forfeiture or loss of the Aircraft or the
Lessor's Estate or the Trust Indenture Estate or any interest in any thereof
or otherwise materially adversely affect the validity or priority of the Lien
of the Indenture.
(c) Reimbursement. Without limiting any other rights the parties
hereto may have as a result of any breach by the Owner Participant of its
obligations in Section ____(b) hereof, the Owner Participant agrees to
reimburse each other party hereto for all reasonable legal fees and expenses
of counsel that may be incurred by any such party as a result of the failure
of the Owner Participant to discharge and satisfy any such Lessor's Lien in
accordance with the terms of Section ____(b) hereof.
(d) Assignment of Interests of Owner Participant. At any time
after the Delivery Date, and subject to the conditions set forth in this
Section ____(d), the Owner Participant may assign, convey or otherwise
transfer to a single institutional investor or an Affiliate of an
institutional investor all (but not less than all) of the Beneficial
Interest, provided that it gives the Lessee and the Indenture Trustee at
least 10 Business Days' notice of such assignment, conveyance or other
transfer and provided further that the Owner Participant shall remain
liable for all obligations of the Owner Participant under the Trust
Agreement and the Operative Agreements to which the Owner Participant is a
party to the extent (but only to the extent) relating to the period on or
before the date of such transfer and provided that the transferee agrees by
a written instrument to assume primary liability for all obligations as an
Owner Participant under the Trust Agreement and the other Operative
Agreements to which such Owner Participant is a party relating to the
period after the date of transfer. Any such transferee shall (a) be (i) a
bank, savings institution, finance company, leasing company or trust
company, national banking association acting for its own account or in a
fiduciary capacity as trustee or agent under any pension, retirement,
profit sharing or similar trust or fund, insurance company, fraternal
benefit society or corporation acting for its own account having a combined
capital and surplus (or, if applicable, consolidated tangible net worth or
its equivalent) of not less than $75,000,000, (ii) a subsidiary of any
Person described in clause (i) where such Person provides (A) support for
the obligations assumed by such transferee subsidiary reasonably
satisfactory to the Lessee, the Owner Trustee and the Indenture Trustee or
(B) an unconditional guaranty of such transferee subsidiary's obligations,
or (iii) an Affiliate of the transferring Owner Participant, so long as
such Affiliate has a combined capital and surplus (or, if applicable,
consolidated tangible net worth or its equivalent) of not less than
$75,000,000, (b) be legally capable of binding itself to the obligations of
the Owner Participant and shall expressly agree to assume all obligations
of the Owner Participant under the Trust Agreement and this Agreement and
(c) provide representations substantially similar to those contained in
Section 7.03(a) hereof. In the event of any such assignment, conveyance or
transfer, the transferee shall become a party to the Trust Agreement and
shall agree to be bound by all the terms of and will undertake all of the
obligations of the Owner Participant contained in the Trust Agreement and
the other Operative Agreements. A transferee hereunder shall be (i) a
"U.S. Person" as defined in Section 7701(a)(30) of the Code (or any
successor provision thereto) and if the transferee shall cease to be such a
"U.S. Person" then such transferee shall promptly transfer in accordance
with the terms of this Agreement and the Trust Agreement all its rights,
title and interest in and to the Trust Agreement, the Lessor's Estate and
this Agreement and meanwhile (A) each Loan Certificate Holder shall be
provided an indemnity in form and substance satisfactory to each such Loan
Certificate Holder, for any Taxes that may be imposed on such Loan
Certificate Holder (currently or in the future) due to such transferee's
failure to be such a "U.S. Person" and (B) such transferee shall be
personally liable for any debt service to the extent that its receipt of
rentals is reduced by reason of any withholding Taxes that result from such
transferee's failure to be such a "U.S. Person" and (ii) a Citizen of the
United States or has established a voting trust, voting powers or other
arrangement reasonably satisfactory to the Indenture Trustee and the Lessee
to permit the Owner Trustee to be the registered owner of the Aircraft
under the Transportation Code. A transferee hereunder shall not be, and in
acquiring the Beneficial Interest shall not use the assets of, an employee
benefit plan subject to Title I of ERISA or an individual retirement
account or a plan subject to Section 4975 of the Code. Assuming the truth
of the representations made in Sections 6.01(m) and 7.06 hereof and
compliance with Section 2.18 of the Indenture, no such assignment,
conveyance or transfer shall violate any provision of law or regulation or
create a relationship which would be in violation thereof. The Owner
Trustee shall not be on notice of or otherwise bound by any such
assignment, conveyance or transfer unless and until it shall have received
an executed counterpart of the instrument of such assignment, conveyance or
transfer. Upon any such disposition by the Owner Participant to a
transferee as above provided, the transferee shall be deemed the "Owner
Participant" or "Trustor" for all purposes of the Operative Agreements, and
shall be deemed to have made all the payments previously made by its
transferor and to have acquired the same interest in the Lessor's Estate as
theretofore held by its transferor; and each reference therein to the
"Owner Participant" or "Trustor" shall thereafter be deemed a reference to
such transferee. Notwithstanding anything to the contrary contained in
this Section 7.03(d), in no event shall the Owner Participant transfer its
interest in the Beneficial Interest to any entity whose business is that of
a nationwide or worldwide overnight or expedited delivery small package air
courier, cargo or freight deliverer or which competes with the Lessee in
such lines of business. The Lessee agrees that it will reasonably
cooperate with the Owner Participant in effecting an assignment of the
Owner Participant's interests including, without limitation, providing
letters to any successor Owner Participant permitting such successor Owner
Participant to rely on any opinions provided by the Lessee on the Delivery
Date.
(e) Actions with Respect to Lessor's Estate, Etc. The Owner
Participant agrees that it will not take any action to subject the Lessor's
Estate or the trust established by the Trust Agreement, as debtor, to the
reorganization or liquidation provisions of the Bankruptcy Code or any other
applicable bankruptcy or insolvency statute.
SCHEDULE VI
MANDATORY ECONOMIC TERMS
Certificates
Loan to Aircraft Value Ratio on any July 15 Payment Date (with the value of
the Aircraft set forth in the Prospectus Supplement in "Equipment Trust
Certificates and the Aircraft" under the column "Appraised Value"):
Series A: not in excess of 40.0%
Series B: not in excess of 55.0%
Series C: not in excess of 75.0%
Average Life (in years):
The average life may not be more than 14.5 years in the case of the
Series A Certificates and 13.0 in the case of the Series B Certificates
and in the case of the Series C Certificates may not be so great as to
cause the average life of the Pass Through Certificates, 1997-1-C, to be
more than 10.0 years (but in each case may be decreased by any amount).
Final Maturity Date:
Series A: may not be extended beyond January 15, 2018
Series B: may not be extended beyond January 15, 2018
Series C: may not be extended beyond January 15, 2014
Debt Rate (computed on the basis of a 360-day year consisting of twelve 30-day
months, payable semi-annually in arrears):
Series A: 7.50%
Series B: 7.52%
Series C: 7.65%
Past Due Rate: Debt Rate plus 2% per annum.
Payment Dates: January 15 and July 15.
Make-Whole Premiums: as provided in Article V of the Indenture.
Redemption and Purchase: as provided in the Indenture.
Lease
Term: The Basic Term shall expire by its terms on or
after final maturity date of the Series A
Certificates.
Lease Payment Dates: January 15 and July 15.
Minimum Rent: Basic Rent due and payable on each Payment Date
shall be at least sufficient to pay in full, as of
such Payment Date (assuming timely payment of the
Certificates prior to such Date), the aggregate
principal amount of scheduled installments due on
the Certificates outstanding on such Payment Date.
Supplemental Rent: Sufficient to cover the sums described in the
definition of such term in Schedule II to the
Participation Agreement.
Stipulated Loss Value: At all times equal to or greater than the
outstanding principal amount of the Certificates
together with accrued interest thereon. The
interest rate payable with respect to Stipulated
Loss Value.
Termination Value: At all times equal to or greater than the
outstanding principal amount of the Certificates
together with accrued interest thereon. The
interest rate payable with respect to Termination
Value Date.
All-risk hull insurance: Not less than Stipulated Loss Value, subject to
Lessee's right to self-insure on terms no more
favorable to Lessee in any material respect than
those set forth in Article 13 of the Lease.
Minimum Liability
Insurance Amount: $___________.
Past Due Rate: As set forth in the definition thereof in Schedule
II to the Participation Agreement.
Participation Agreement
The Indenture Trustee, the Subordination Agent and the Liquidity Providers
indemnified against Expenses and Taxes to the extent set forth in Articles 8
and 9 of the Participation Agreement as in effect on the Certificate Closing
Date.
EXHIBIT A(1)(a)(i)
[Letterhead of Federal Express]
[Certificate Closing Date]
To the Addressees Listed on Schedule A Attached
Re: Federal Express Corporation Trust No. N583FE
Ladies and Gentlemen:
I am the Vice President - Law of Federal Express Corporation, a
Delaware corporation ("Federal"), and am familiar with the transactions
contemplated by the Participation Agreement (Federal Express Corporation Trust
No. N583FE), dated as of May 1, 1997 (the "Participation Agreement"), among
Federal, as Lessee and Initial Owner Participant, State Street Bank and Trust
Company of Connecticut, National Association, not in its individual capacity,
except as otherwise stated, but solely as Owner Trustee, and First Security
Bank, National Association, not in its individual capacity, except as otherwise
stated, but solely as Indenture Trustee, Pass Through Trustee and Subordination
Agent, relating to the Aircraft. This opinion is being delivered pursuant to
Section 4.01(j)(i) of the Participation Agreement. Capitalized terms not
otherwise defined herein have the meanings assigned thereto in the
Participation Agreement.
The Participation Agreement provides, among other things, for
the financing on the Delivery Date of a portion of the Owner Trustee's payment
of the Purchase Price of one McDonnell Douglas MD-11F aircraft (the
"Aircraft"), using the proceeds from the public offering of the Pass Through
Certificates. Three Classes of Pass Through Certificates will be issued by
three Pass Through Trusts formed to acquire, among other securities, the
Certificates bearing a particular interest rate and having a particular
Maturity that will be issued under the Indenture.
In connection with the opinions expressed below, I have examined
or caused to be examined by attorneys under my supervision, (i) executed
counterparts of the Pass Through Agreement, the Series Supplements and the
Operative Agreements to be delivered on the Certificate Closing Date (the
"Certificate Closing Date Documents") and (ii) the forms of the Operative
Agreements to be delivered on the Delivery Date. We have relied upon originals
or copies, certified or otherwise identified to our satisfaction, of such
corporate records, documents and other instruments as in our judgment are
relevant to rendering the opinions expressed below. As to any facts material
to the opinions expressed below (other than any thereof relating to Federal),
we have relied upon the representations and warranties made in the Certificate
Closing Date Documents, the accuracy of which we have not independently
investigated or verified. In such examination, we have assumed the
genuineness of all signatures (other than the signatures of Federal) and the
authenticity of all documents submitted to us as originals and the conformity
with the originals of all documents submitted to us as copies. We have also
assumed that each of the parties to each of the Certificate Closing Date
Documents, other than Federal, has full power, authority and legal right to
enter into such Certificate Closing Date Documents and that each such
Certificate Closing Date Document has been duly authorized, executed and
delivered by each of such parties.
Based on the foregoing, it is my opinion that:
1. Federal is a corporation duly incorporated, validly
existing and in good standing under the laws of the State of Delaware, is a
"citizen of the United States" within the meaning of Section 40102(a)(15) of
the Transportation Code, and has or had, on the date of execution thereof, the
corporate power and authority to carry on its business as currently conducted
and to enter into and perform its obligations under the Certificate Closing
Date Documents to which it is a party. Federal is duly qualified to do
business and is in good standing in the State of Tennessee and each other
state of the United States in which its operations or the nature of its
business requires Federal to so qualify, except where the failure to so
qualify would not have a material adverse impact on Federal or its business.
2. Federal possesses all necessary certificates, franchises,
licenses, permits, rights and concessions and consents which are material to
the operation of the routes flown by it and the conduct of its business and
operations as currently conducted, and each such certificate, franchise,
license, permit, right and concession and consent is in full force and effect.
3. Each of the Certificate Closing Date Documents to which
Federal is a party has or had, on the date of execution thereof, been duly
authorized, executed and delivered by Federal and each constitutes the legal,
valid and binding obligation of Federal enforceable against Federal in
accordance with its terms. Each of the Certificate Closing Date Documents to
which Federal is to be a party and which are to be executed on the Delivery
Date has been duly authorized by Federal.
4. Neither the execution and delivery by Federal of the
Certificate Closing Date Documents to which Federal is a party, nor the
consummation of any of the transactions by Federal contemplated thereby, nor
the performance of the obligations thereunder by Federal, did at the time of
execution and delivery, or does presently (a) require any stockholder approval
or violate the certificate of incorporation or by-laws of Federal or (b)
conflict with or contravene the provisions of, or constitute a default under,
or result in the creation of any Lien (other than Liens permitted under
Section 6.01(a) of the Lease) upon the property of Federal under any law,
governmental rule or regulation, or the charter or bylaws of Federal or any
order, writ, injunction or decree of any court or governmental authority
against Federal or by which any of its properties may be bound or any
indenture, mortgage, contract or other agreement known to me to which Federal
is a party or by which it may be bound or, require the approval or consent of
any trustee or the holders of any indebtedness or obligations of Federal.
5. Neither the execution and delivery by Federal of the
Certificate Closing Date Documents to which it is a party, nor the
consummation of any transactions by Federal contemplated thereby, nor the
performance of the obligations thereunder by Federal, did or does, as the case
may be, (a) require the consent or approval of, the giving of notice to, or
(except as described or contemplated in the Participation Agreement and the
Lease, all of which are required to be performed on or prior to the Certificate
Closing Date and which shall have been accomplished on or prior to the
Certificate Closing Date) the registration with, or the taking of any other
action in respect of, the Aeronautics Authority, the Securities and Exchange
Commission or any other authority or agency of the federal government or of
the State of Tennessee other than (i) the registration of the issuance and
sale of the Pass Through Certificates under the Securities Act and (ii)
compliance with the securities laws of each applicable state, or (b)
contravene any judgment or order applicable to or binding on Federal or any
law or governmental rule or regulation of the United States or of the State of
Tennessee.
6. There is no pending, or to my knowledge, threatened action
or proceeding before any court or administrative agency which individually (or
in the aggregate in the case of any group of related lawsuits) is expected to
have a material adverse effect on (A) the financial condition of Federal,
except for the matters described (a) under "Legal Proceedings" in Federal's
Annual Report on Form 10-K for the fiscal year ended May 31, 1996 (as updated
by Note 7 to the financial statements included in Federal's Quarterly Reports
on Form 10-Q for the fiscal quarters ended August 31, 1996, November 30, 1996
and February 28, 1997) and (b) in Federal's Current Reports on Form 8-K dated
June 7, 1996, August 16, 1996 and March 4, 1997, as to which I can express no
opinion at this time concerning Federal's liability (if any) or the effect of
any adverse determination upon the business, condition (financial or
otherwise) or operations of Federal or (B) the ability of Federal to perform
its obligations under the Certificate Closing Date Documents.
7. Federal is a duly certificated "air carrier" within the
meaning of the Transportation Code, and a holder of a certificate under
Sections 41102(a) and 41103 of the Transportation Code, and an "air carrier
operating certificate" issued under Chapter 447 of the Transportation Code for
aircraft capable of carrying ten (10) or more individuals or 6,000 pounds or
more of cargo, and each such certificate is in full force and effect.
8. Federal's principal place of business and chief executive
office (as such term is defined in the Uniform Commercial Code in effect in the
State of Tennessee) are located at 2005 Corporate Avenue, Memphis, Shelby
County, Tennessee.
9. Federal is not, and is not directly or indirectly
controlled by or acting on behalf of any Person which is, an "investment
company" within the meaning of the Investment Company Act of 1940, as amended.
The opinions expressed in paragraph 3 above as to the
enforceability of the Certificate Closing Date Documents to which Federal is a
party are based upon the assumption for purposes of such opinions and without
independent analysis that, notwithstanding the respective choice of laws
clauses in the Certificate Closing Date Documents, the governing law with
respect to each of the Certificate Closing Date Documents is identical in all
relevant respects to the law of the State of Tennessee. Insofar as the
foregoing opinion relates to the enforceability of any instrument, such
enforceability is subject to applicable bankruptcy, insolvency and other
similar laws affecting the enforcement of creditors' rights generally (whether
such enforceability is considered in a proceeding in equity or at law). The
enforceability of the remedies provided under the Lease may also be limited by
applicable laws which may affect the remedies provided therein but which do
not in my opinion affect the validity of the Lease or make such remedies
inadequate for the practical realization of the benefits intended to be
provided thereby.
I do not express any opinion as to matters governed by any law
other than the Federal laws of the United States of America, the corporation
law of the State of Delaware and the laws of the State of Tennessee.
This opinion is delivered to you solely for your use in
connection with the transaction described herein, and may not be used for any
other purpose, and may not be relied upon by any other person, without my prior
written consent.
George W. Hearn
SCHEDULE A
----------
Owner Trustee
State Street Bank and Trust Company
of Connecticut, National Association
Two International Place
4th Floor
Boston, Massachusetts 02110
Indenture Trustee, Pass Through Trustee & Subordination Agent
First Security Bank, National Association
79 South Main Street
Salt Lake City, Utah 84111
Underwriters
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
First Chicago Capital Markets, Inc.
Corporate Securities
One First National Plaza
Chicago, Illinois 60670
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
J.P. Morgan & Co.
60 Wall Street
New York, New York 10260
Liquidity Provider
Kredietbank N.V., New York Branch
125 West 55th Street
New York, New York 10019
EXHIBIT A(1)(a)(ii)
[Letterhead of Federal Express]
[Delivery Date]
To the Addressees Listed on Schedule A Attached
Re: Federal Express Corporation Trust No. N583FE
Ladies and Gentlemen:
I am the Vice President - Law of Federal Express Corporation, a
Delaware corporation ("Federal"), and am familiar with the transactions
contemplated by the Participation Agreement (Federal Express Corporation Trust
No. N583FE), dated as of May 1, 1997 (the "Participation Agreement"), among
Federal, as Lessee, ____________________, as Owner Participant, State Street
Bank and Trust Company of Connecticut, National Association, not in its
individual capacity, except as otherwise stated, but solely as Owner Trustee,
and First Security Bank, National Association, not in its individual capacity,
except as otherwise stated, but solely as Indenture Trustee, Pass Through
Trustee and Subordination Agent, relating to the Aircraft. This opinion is
being delivered pursuant to Section 4.02(d)(i) of the Participation Agreement.
Capitalized terms not otherwise defined herein have the meanings assigned
thereto in the Participation Agreement.
The Participation Agreement provides, among other things, for
the financing on the Delivery Date of a portion of the Owner Trustee's payment
of the Purchase Price of one McDonnell Douglas MD-11F aircraft (the
"Aircraft"), using the proceeds from the public offering of the Pass Through
Certificates. Three Classes of Pass Through Certificates were issued by three
Pass Through Trusts formed to acquire, among other securities, the
Certificates bearing a particular interest rate and having a particular
Maturity that were issued under the Indenture, as supplemented by the related
Indenture and Security Agreement Supplement.
In connection with the opinions expressed below, I have examined
or caused to be examined by attorneys under my supervision, executed
counterparts of the Operative Agreements, the Pass Through Agreement and each
Series Supplement (the "Transaction Agreements"). We have relied upon
originals or copies, certified or otherwise identified to our satisfaction, of
such corporate records, documents and other instruments as in our judgment are
relevant to rendering the opinions expressed below. As to any facts material
to the opinions expressed below (other than any thereof relating to Federal),
we have relied upon the representations and warranties made in the Transaction
Agreements, the accuracy of which we have not independently investigated or
verified. In such examination, we have assumed the genuineness of all
signatures (other than the signatures of Federal) and the authenticity of all
documents submitted to us as originals and the conformity with the originals of
all documents submitted to us as copies. We have also assumed that each of
the parties to each of the Transaction Agreements, other than Federal, has full
power, authority and legal right to enter into such Transaction Agreements and
that each such Transaction Agreement has been duly authorized, executed and
delivered by each of such parties.
Based on the foregoing, it is my opinion that:
1. Federal is a corporation duly incorporated, validly
existing and in good standing under the laws of the State of Delaware, is a
"citizen of the United States" within the meaning of Section 40102(a)(15) of
the Transportation Code, and has or had, on the date of execution thereof, the
corporate power and authority to carry on its business as currently conducted
and to enter into and perform its obligations under the Transaction Agreements
to which it is a party. Federal is duly qualified to do business and is in
good standing in the State of Tennessee and each other state of the United
States in which its operations or the nature of its business requires Federal
to so qualify, except where the failure to so qualify would not have a
material adverse impact on Federal or its business.
2. Federal possesses all necessary certificates, franchises,
licenses, permits, rights and concessions and consents which are material to
the operation of the routes flown by it and the conduct of its business and
operations as currently conducted, and each such certificate, franchise,
license, permit, right and concession and consent is in full force and effect.
3. Each of the Transaction Agreements to which Federal is a
party has or had, on the date of execution thereof, been duly authorized,
executed and delivered by Federal and each constitutes the legal, valid and
binding obligation of Federal enforceable against Federal in accordance with
its terms.
4. Neither the execution and delivery by Federal of the
Transaction Agreements to which Federal is a party, nor the consummation of
any of the transactions by Federal contemplated thereby, nor the performance
of the obligations thereunder by Federal, did at the time of execution and
delivery, or does presently (a) require any stockholder approval or violate the
certificate of incorporation or by-laws of Federal or (b) conflict with or
contravene the provisions of, or constitute a default under, or result in the
creation of any Lien (other than Liens permitted under Section 6.01(a) of the
Lease) upon the property of Federal under any law, governmental rule or
regulation, or the charter or bylaws of Federal or any order, writ, injunction
or decree of any court or governmental authority against Federal or by which
any of its properties may be bound or any indenture, mortgage, contract or
other agreement known to me to which Federal is a party or by which it may be
bound or, require the approval or consent of any trustee or the holders of any
indebtedness or obligations of Federal.
5. Neither the execution and delivery by Federal of the
Transaction Agreements to which it is a party, nor the consummation of any
transactions by Federal contemplated thereby, nor the performance of the
obligations thereunder by Federal, did or does, as the case may be, (a) require
the consent or approval of, the giving of notice to, or (except as described or
contemplated in the Participation Agreement and the Lease, all of which were or
are required to be performed on or prior to the Delivery Date and which were or
shall have been accomplished on or prior to the Delivery Date) the registration
with, or the taking of any other action in respect of, the Aeronautics
Authority, the Securities and Exchange Commission or any other authority or
agency of the federal government or of the State of Tennessee other than (i)
the registration of the issuance and sale of the Pass Through Certificates
under the Securities Act, (ii) compliance with the securities laws of each
applicable state and (iii) the filings and recordings referred to in paragraph
7 below, or (b) contravene any judgment or order applicable to or binding on
Federal or any law or governmental rule or regulation of the United States or
of the State of Tennessee.
6. There is no pending, or to my knowledge, threatened action
or proceeding before any court or administrative agency which individually (or
in the aggregate in the case of any group of related lawsuits) (i) is expected
to have a material adverse effect on (A) the financial condition of Federal,
except for the matters described (a) under "Legal Proceedings" in Federal's
Annual Report on Form 10-K for the fiscal year ended May 31, 1996 (as updated
by Note 7 to the financial statements included in Federal's Quarterly Reports
on Form 10-Q for the fiscal quarters ended August 31, 1996, November 30, 1996
and February 28, 1997) and (b) in Federal's Current Reports on Form 8-K dated
June 7, 1996, August 16, 1996 and March 4, 1997, as to which I can express no
opinion at this time concerning Federal's liability (if any) or the effect of
any adverse determination upon the business, condition (financial or
otherwise) or operations of Federal or (B) the ability of Federal to perform
its obligations under the Transaction Agreements, or (ii) involves the
Aircraft.
7. Except for the registration in the Owner Trustee's name of
the Aircraft pursuant to the Transportation Code, and except for the filing
and, where appropriate, recording, pursuant to the Transportation Code of (A)
the FAA Bill of Sale, (B) the Trust Agreement, (C) the Lease (with the Lease
Supplement covering the Aircraft, the Indenture and the Indenture and Security
Agreement Supplement covering the Aircraft attached as exhibits) and (D) the
Indenture (with the Indenture and Security Agreement Supplement covering the
Aircraft attached as an exhibit), no further action, including any filing or
recording of any document is necessary or advisable in order to establish and
perfect the Owner Trustee's title to and interest in the Aircraft as against
Federal and any third parties, or to perfect the first mortgage lien on the
Aircraft in favor of the Indenture Trustee in each case with respect to such
portion of the Aircraft as is covered by the recording system established by
the Transportation Code.
8. Federal is a duly certificated "air carrier" within the
meaning of the Transportation Code, and a holder of a certificate under
Sections 41102(a) and 41103 of the Transportation Code, and an "air carrier
operating certificate" issued under Chapter 447 of the Transportation Code for
aircraft capable of carrying ten (10) or more individuals or 6,000 pounds or
more of cargo, and each such certificate is in full force and effect.
9. On the date hereof the Owner Trustee received good and
valid title to the Aircraft free and clear of all Liens on file with the FAA,
except for Liens permitted under Section 6.01(a) of the Lease.
10. Federal's principal place of business and chief executive
office (as such term is defined in the Uniform Commercial Code in effect in the
State of Tennessee) are located at 2005 Corporate Avenue, Memphis, Shelby
County, Tennessee.
11. Federal is not, and is not directly or indirectly
controlled by or acting on behalf of any Person which is, an "investment
company" within the meaning of the Investment Company Act of 1940, as amended.
The opinions expressed in paragraph 3 above as to the
enforceability of the Transaction Agreements to which Federal is a party are
based upon the assumption for purposes of such opinions and without
independent analysis that, notwithstanding the respective choice of laws
clauses in the Transaction Agreements, the governing law with respect to each
of the Transaction Agreements is identical in all relevant respects to the law
of the State of Tennessee. Insofar as the foregoing opinion relates to the
enforceability of any instrument, such enforceability is subject to applicable
bankruptcy, insolvency and other similar laws affecting the enforcement of
creditors' rights generally (whether such enforceability is considered in a
proceeding in equity or at law). The enforceability of the remedies provided
under the Lease may also be limited by applicable laws which may affect the
remedies provided therein but which do not in my opinion affect the validity of
the Lease or make such remedies inadequate for the practical realization of the
benefits intended to be provided thereby.
I do not express any opinion as to matters governed by any law
other than the Federal laws of the United States of America, the corporation
law of the State of Delaware and the laws of the State of Tennessee.
As to the matters referred to in paragraphs 5, 7 and 9, I have
relied on the opinion of Daugherty, Fowler & Peregrin of even date herewith, to
the extent such matters are addressed in such counsel's opinion and subject to
the assumptions and qualifications expressed therein.
This opinion is delivered to you solely for your use in
connection with the transaction described herein, and may not be used for any
other purpose, and may not be relied upon by any other person, without my prior
written consent.
George W. Hearn
SCHEDULE A
----------
Owner Trustee
State Street Bank and Trust Company
of Connecticut, National Association
Two International Place
4th Floor
Boston, Massachusetts 02110
Indenture Trustee, Pass Through Trustee & Subordination Agent
First Security Bank, National Association
79 South Main Street
Salt Lake City, Utah 84111
Underwriters
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
First Chicago Capital Markets, Inc.
Corporate Securities
One First National Plaza
Chicago, Illinois 60670
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
J.P. Morgan & Co.
60 Wall Street
New York, New York 10260
Liquidity Provider
Kredietbank N.V., New York Branch
125 West 55th Street
New York, New York 10019
Owner Participant
EXHIBIT A(1)(b)(i)
[Letterhead of Davis Polk & Wardwell]
[Certificate Closing Date]
To Each of the Parties named on Schedule A Hereto
Re: Federal Express Corporation Trust No. N583FE
Ladies and Gentlemen:
We have acted as special counsel for Federal Express
Corporation, a Delaware corporation ("Federal Express"), in connection with
the transactions contemplated by the Participation Agreement (Federal Express
Corporation Trust No. N583FE), dated as of May 1, 1997 (the "Participation
Agreement"), among Federal Express, as Lessee and Initial Owner Participant,
State Street Bank and Trust Company of Connecticut, National Association, not
in its individual capacity, except as otherwise stated, but solely as Owner
Trustee, and First Security Bank, National Association, not in its individual
capacity, except as otherwise stated, but solely as Indenture Trustee, Pass
Through Trustee and Subordination Agent, relating to the Aircraft. This
opinion is being delivered pursuant to Section 4.01(k)(v) of the Participation
Agreement. Capitalized terms not otherwise defined herein have the meanings
assigned thereto in the Participation Agreement.
The Participation Agreement provides, among other things, for
the financing on the Delivery Date of a portion of the Owner Trustee's payment
of the Purchase Price of one McDonnell Douglas MD-11F Aircraft using the
proceeds from the public offering of the Pass Through Certificates. On the
Certificate Closing Date, three Classes of Pass Through Certificates will be
issued by separate Pass Through Trusts, each formed to acquire, among other
securities, the Certificates bearing a particular interest rate and having a
particular Maturity that will be issued under the Indenture.
In connection with the opinions expressed below, we have
examined executed counterparts of the Operative Agreements, the Pass Through
Certificates, the Pass Through Agreement and each Series Supplement (the
"Certificate Closing Date Documents") and the forms of the Operative
Agreements to be delivered on the Delivery Date. We have also examined
originals, or copies certified to our satisfaction, of such other agreements,
documents, certificates and statements of governmental officials and corporate
officers as we have deemed necessary or advisable as a basis for such
opinions. In such examination, we have assumed the genuineness of all
signatures and the authenticity of all documents submitted to us as originals
and the conformity with the originals of all documents submitted to us as
copies.
As to any facts material to our opinions expressed below, we
have, with your consent, relied on the representations and warranties made in
or pursuant to the Participation Agreement and the other documents referred to
therein, the accuracy of which we have not independently verified. In
addition, we have, when relevant facts were not independently established by
us, relied, to the extent we deemed such reliance proper, upon certificates of
public officials and certificates, telegrams and other written or telephoned
statements of officers of the parties referred to herein.
Based on the foregoing, it is our opinion that:
1. Assuming (i) the due authorization, execution and delivery
of the Certificate Closing Date Documents by each of the parties to each such
document (other than Federal Express), (ii) each such party has full power and
legal right to enter into and perform its respective obligations under the
Certificate Closing Date Documents, (iii) that the execution, delivery and
performance of each of the Certificate Closing Date Documents by each of the
parties thereto will not violate the respective parties' constituent documents,
(iv) the due authorization, execution, issuance and delivery by the Owner
Trustee, and the due authentication by the Indenture Trustee, of the
Certificates to be issued under the Indenture in accordance with the terms of
the Indenture, (v) the due authorization, execution, issuance, delivery and
authentication by the Pass Through Trustee of the Pass Through Certificates to
be issued under the Pass Through Agreement and the Series Supplement relating
to such Pass Through Certificates, in each case in accordance with the terms
of the Pass Through Agreement and such Series Supplement, and (vi) that the
form of each Certificate Closing Date Document is in compliance with all
applicable laws and governmental rules and regulations (other than the laws of
the United States and the State of New York), then: (A) to the extent governed
by New York law, each Certificate Closing Date Document in form constitutes a
legal, valid and binding agreement of each party thereto enforceable against
each such party in accordance with its terms; (B) the Indenture creates, for
the benefit of the Holders, the security interest in the Trust Indenture
Estate that it purports to create, except that no opinion is given with
respect to perfection of such security interest on the date hereof; (C) the
Certificates, when issued to and acquired by the Pass Through Trustee, will be
legal, valid and binding obligations of the Owner Trustee enforceable against
the Owner Trustee in accordance with their terms and the terms of the
Indenture and will be entitled to the benefits of the Indenture, including the
benefit of the security interest created thereby, except that no opinion is
given with respect to perfection of such security interest on the date hereof;
(D) the Pass Through Certificates, when issued to and acquired by the
Underwriters in accordance with the Underwriting Agreement, will be legal,
valid and binding obligations of the Pass Through Trustee enforceable against
the Pass Through Trustee in accordance with their terms and will be entitled
to the benefits of the Pass Through Agreement and the Series Supplement
relating thereto; and (E) the beneficial interest of the Initial Owner
Participant under the Trust Agreement in and to the properties which are part
of the Trust Indenture Estate is subject, to the extent provided in the
Indenture, to the Lien of the Indenture in favor of the Holders.
2. (a) Each of the Certificate Closing Date Documents to which
Federal Express is a party has been duly authorized, executed and delivered by
Federal Express. Each of the Operative Agreements to which Federal Express is
to be a party and which are to be delivered on the Delivery Date has been
authorized by Federal Express.
(b) The execution, delivery and performance by Federal Express
of each of the Certificate Closing Date Documents to which Federal Express is a
party do not, or did not on the date of execution thereof, violate, and fully
comply, or did fully comply on the date of execution thereof, with, any laws
and governmental rules and regulations of the State of New York that may be
applicable to Federal Express. The opinion set forth in this paragraph 2(b) is
rendered without regard to the taking of any action or the conduct of any other
business by Federal Express in the State of New York other than the
transactions contemplated by the Certificate Closing Date Documents.
3. The execution, delivery and performance of the Certificate
Closing Date Documents (other than the Certificates) by the Owner Trustee in
its individual or trust capacity, as the case may be, and the issuance,
execution, delivery and performance of the Certificates by the Owner Trustee
in its trust capacity do not violate, and fully comply with, any laws and
governmental rules and regulations of the State of New York that may be
applicable to the Owner Trustee in its individual or trust capacity, as the
case may be. The opinion set forth in this paragraph 3 is rendered without
regard to the effect, if any, on such issuance (in the case of the
Certificates), execution, delivery or performance, of the taking of any
action, the conduct of any business or the exercise of any other powers by
State Street Bank and Trust Company of Connecticut, National Association in
its individual or trust capacity in the State of New York not related to the
transactions contemplated by the Certificate Closing Date Documents. We have
assumed that State Street Bank and Trust Company of Connecticut, National
Association has made the filings necessary to comply with Section 131.3 of the
Banking Law of the State of New York, however we express no opinion as to
whether State Street Bank and Trust Company of Connecticut, National
Association is required to comply with said Section 131.3.
4. It is not necessary, in connection with the creation of
the beneficial interest of the Initial Owner Participant in the Trust
Indenture Estate under the circumstances contemplated by the Participation
Agreement to register such beneficial interest under the Securities Act of
1933, as amended, or to qualify the Trust Agreement under the Trust Indenture
Act of 1939, as amended.
The foregoing opinions are subject to the following
qualifications:
(a) We have relied, with your consent, without independent
investigation and verification and subject to the assumptions and
qualifications contained therein, upon the opinion of George W. Hearn,
Vice President - Law of Federal Express to be delivered to you and
dated the date hereof, for purposes of the matters covered thereby.
(b) We are qualified to practice law in the State of New York,
and we do not purport to be experts on, or to express any opinion
herein concerning, any laws other than the laws of the State of New
York, the laws of the United States and the General Corporation Law
of the State of Delaware.
(c) The opinion contained in paragraph 1(A) above as to
enforceability is subject to (i) applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement
of creditors' rights generally and (ii) general principles of equity
which may affect the remedies provided in the agreements referred to
in said opinions, which laws and principles, however, do not in our
opinion make the remedies provided in said agreements inadequate for
the practical realization of the benefits of the security intended to
be provided thereby.
(d) This opinion is rendered solely to you at Federal Express's
request in connection with the above matter. This opinion may not be
relied upon by you for any other purpose or relied upon by any other
Person without our prior written consent.
Very truly yours,
Davis Polk & Wardwell
SCHEDULE A
----------
Lessee
Federal Express Corporation
2007 Corporate Avenue
Memphis, Tennessee 38132
Owner Trustee
State Street Bank and Trust Company
of Connecticut, National Association
Two International Place
4th Floor
Boston, Massachusetts 02110
Indenture Trustee, Pass Through Trustee & Subordination Agent
First Security Bank, National Association
79 South Main Street
Salt Lake City, Utah 84111
Underwriters
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
First Chicago Capital Markets, Inc.
Corporate Securities
One First National Plaza
Chicago, Illinois 60670
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
J.P. Morgan & Co.
60 Wall Street
New York, New York 10260
Liquidity Provider
Kredietbank N.V., New York Branch
125 West 55th Street
New York, New York 10019
EXHIBIT A(1)(b)(ii)
[Letterhead of Davis Polk & Wardwell]
[Delivery Date]
To Each of the Parties named on Schedule A Hereto
Re: Federal Express Corporation Trust No. N583FE
Ladies and Gentlemen:
We have acted as special counsel for Federal Express
Corporation, a Delaware corporation ("Federal Express"), in connection with
the transactions contemplated by the Participation Agreement (Federal Express
Corporation Trust No. N583FE), dated as of May 1, 1997 (the "Participation
Agreement"), among Federal Express, as Lessee, _________________, as Owner
Participant, State Street Bank and Trust Company of Connecticut, National
Association, not in its individual capacity but solely as Owner Trustee, and
First Security Bank, National Association, not in its individual capacity,
except as otherwise stated, but solely as Indenture Trustee, Pass Through
Trustee and Subordination Agent, relating to the Aircraft. This opinion is
being delivered pursuant to Section 4.02(d)(ii) of the Participation
Agreement. Capitalized terms not otherwise defined herein have the meanings
assigned thereto in the Participation Agreement.
The Participation Agreement provides, among other things, for
the financing on the Delivery Date of the Owner Trustee's payment of a portion
of the Purchase Price of one McDonnell Douglas MD-11F Aircraft (the "Aircraft")
using the proceeds from the public offering of the Pass Through Certificates.
On the Certificate Closing Date, three Classes of Pass Through Certificates
were issued by separate Pass Through Trusts, each formed to acquire, among
other securities, the Certificates bearing a particular interest rate and
having a particular Maturity issued under the Indenture. The Aircraft is to
be leased to Federal Express by the Owner Trustee pursuant to the Lease and
subjected to the Lien of the Indenture, and is to be delivered by the Owner
Trustee to the Lessee on this date, and in connection with the delivery of the
Aircraft, the Owner Trustee and Federal Express will execute and deliver the
Lease Supplement, and the Owner Trustee will execute and deliver the Indenture
and Security Agreement Supplement.
In connection with the opinions expressed below, we have
examined executed counterparts of the Operative Agreements, the Pass Through
Certificates, the Pass Through Agreement and each Series Supplement (the
"Transaction Agreements"). We have also examined originals, or copies
certified to our satisfaction, of such other agreements, documents,
certificates and statements of governmental officials and corporate officers
as we have deemed necessary or advisable as a basis for such opinions. In such
examination, we have assumed the genuineness of all signatures and the
authenticity of all documents submitted to us as originals and the conformity
with the originals of all documents submitted to us as copies.
As to any facts material to our opinions expressed below, we
have, with your consent, relied on the representations and warranties made in
or pursuant to the Participation Agreement and the other documents referred to
therein, the accuracy of which we have not independently verified. In
addition, we have, when relevant facts were not independently established by
us, relied, to the extent we deemed such reliance proper, upon certificates of
public officials and certificates, telegrams and other written or telephoned
statements of officers of the parties referred to herein.
Based on the foregoing, it is our opinion that:
1. With respect to that portion, if any, of the Aircraft and
the other property included in the Lessor's Estate as may not be covered by the
recording system established by the FAA pursuant to Section 44107 of the
Transportation Code, no filing or recording of any document or other action was
or is necessary in order to establish the Owner Trustee's title thereto and
interest therein as against Federal Express and any third parties.
2. Subject to execution and delivery of the Lease Supplement
and the Indenture and Security Agreement Supplement for the Aircraft and to the
registration of the Aircraft with the FAA in the name of the Owner Trustee, the
Lease, as supplemented, will create a valid leasehold interest in the
Aircraft, the entitlement thereof to the benefits of recordation under the
Transportation Code being subject to the due and timely filing and, where
appropriate, recording of (A) the FAA Bill of Sale, (B) the Trust Agreement,
(C) the Lease (with the Lease Supplement covering the Aircraft, the Indenture
and the Indenture and Security Agreement Supplement covering the Aircraft
attached as exhibits) and (D) the Indenture (with the Indenture and Security
Agreement Supplement covering the Aircraft attached as an exhibit), pursuant
to the Transportation Code, and assuming that at the time of such filing no
other documents relating to the Aircraft have been filed pursuant to the
Transportation Code.
3. Assuming (i) the due authorization, execution and delivery
of the Transaction Agreements by each of the parties to each such document
(other than Federal Express), (ii) each such party has full power and legal
right to enter into and perform its respective obligations under the
Transaction Agreements, (iii) that the execution, delivery and performance of
each of the Transaction Agreements by each of the parties thereto will not
violate the respective parties' constituent documents, (iv) the due
authorization, execution, issuance and delivery by the Owner Trustee, and the
due authentication by the Indenture Trustee, of the Certificates issued under
the Indenture in accordance with the terms of the Indenture, (v) the due
authorization, execution, issuance, delivery and authentication by the Pass
Through Trustee of the Pass Through Certificates issued under the Pass Through
Agreement and the Series Supplement relating to such Pass Through
Certificates, in each case in accordance with the terms of the Pass Through
Agreement and such Series Supplement, and (vi) that the form of each
Transaction Agreement is in compliance with all applicable laws and
governmental rules and regulations (other than the laws of the United States
and the State of New York), then: (A) to the extent governed by New York law,
each Transaction Agreement in form constitutes a legal, valid and binding
agreement of each party thereto enforceable against each such party in
accordance with its terms; (B) the Indenture creates, for the benefit of the
Holders, the security interest in the Trust Indenture Estate that it purports
to create; (C) the Certificates are legal, valid and binding obligations of
the Owner Trustee enforceable against the Owner Trustee in accordance with
their terms and the terms of the Indenture and are entitled to the benefits of
the Indenture, including the benefit of the security interest created thereby;
and (D) the beneficial interest of the Owner Participant under the Trust
Agreement in and to the properties which are part of the Trust Indenture
Estate is subject, to the extent provided in the Indenture, as supplemented by
the Indenture and Security Agreement Supplement, to the Lien of the Indenture
in favor of the Holders. The opinions set forth in this paragraph 3 are
subject to the due filing and recording, where appropriate, with the FAA of
the documents referred to in paragraph 2 above.
4. (a) Each of the Transaction Agreements to which Federal
Express is a party has been duly authorized, executed and delivered by Federal
Express.
(b) The execution, delivery and performance by Federal Express
of each of the Transaction Agreements to which Federal Express is a party do
not, or did not on the date of execution thereof, violate, and fully comply,
or did fully comply on the date of execution thereof, with, any laws and
governmental rules and regulations of the State of New York that may be
applicable to Federal Express. The opinion set forth in this paragraph 4(b)
is rendered without regard to the taking of any action or the conduct of any
other business by Federal Express in the State of New York other than the
transactions contemplated by the Transaction Agreements.
5. The execution, delivery and performance of the Transaction
Agreements (other than the Certificates) by the Owner Trustee in its individual
or trust capacity, as the case may be, and the issuance, execution, delivery
and performance of the Certificates by the Owner Trustee in its trust capacity
do not violate, and fully comply with, any laws and governmental rules and
regulations of the State of New York that may be applicable to the Owner
Trustee in its individual or trust capacity, as the case may be. The opinion
set forth in this paragraph 5 is rendered without regard to the effect, if
any, on such issuance (in the case of the Certificates), execution, delivery
or performance, of the taking of any action, the conduct of any business or
the exercise of any other powers by State Street Bank and Trust Company of
Connecticut, National Association in its individual or trust capacity in the
State of New York not related to the transactions contemplated by the
Transaction Agreements. We have assumed that State Street Bank and Trust
Company of Connecticut, National Association has made the filings necessary to
comply with Section 131.3 of the Banking Law of the State of New York, however
we express no opinion as to whether State Street Bank and Trust Company of
Connecticut, National Association is required to comply with said Section
131.3.
6. All the properties which are part of the Trust Indenture
Estate (including all right, title and interest of the Owner Trustee pledged
and mortgaged by it pursuant to the Indenture in and to the Aircraft and the
Lease) have been pledged and mortgaged with the Indenture Trustee as part of
the Trust Indenture Estate (subject to the due filing and, where appropriate,
recording of those documents referred to in paragraph 2 above and the
financing statement referred to in Section 4.02(f) of the Participation
Agreement), and the beneficial interest of the Owner Participant under the
Trust Agreement in and to such properties are subject, to the extent provided
in the Indenture, to the Lien of the Indenture in favor of the Holders of the
Certificates issued and to be issued under the Indenture.
7. The Indenture and Security Agreement Supplement, pursuant
to the Granting Clause of the Indenture, creates, as security for the
Certificates duly issued and to be issued under the Indenture, the first
priority security interest in the Aircraft it purports to create, the
perfection and rank thereof being subject to the registration with the FAA of
the Aircraft in the name of the Owner Trustee and the due filing and, where
appropriate, recording in accordance with the Transportation Code of the
documents referred to in paragraph 2 above. We express no opinion with
respect to the status of any security interest in any portion of the Aircraft
which does not constitute an "aircraft" or "aircraft engine", as defined in
paragraphs (6) and (7) of Section 40102(a) of the Transportation Code.
8. Except for (i) the filings and recordings referred to in
paragraph 2 above, (ii) the registration of the issuance and sale of the Pass
Through Certificates under the Securities Act and (iii) compliance with the
securities laws of each applicable state, neither the execution and delivery by
Federal Express of the Participation Agreement or any other Operative
Agreement to which it is a party, nor the consummation of any of the
transactions by Federal Express contemplated thereby, requires the consent or
approval of, the giving of notice to, or the registration with, or the taking
of any other action in respect of, the Department of Transportation, the FAA,
the Securities and Exchange Commission or any other Federal or New York State
governmental authority.
9. It is not necessary, in connection with the creation of
the beneficial interest of the Owner Participant in the Trust Indenture Estate
under the circumstances contemplated by the Participation Agreement to
register such beneficial interest under the Securities Act of 1933, as
amended, or to qualify the Trust Agreement under the Trust Indenture Act of
1939, as amended.
10. The provisions of Section 1110 of the United States
Bankruptcy Code will apply to the Aircraft for the benefit of the Lessor, as
lessor under and by reason of the Lease. The Lease, including the rights under
Section 1110 of the United States Bankruptcy Code, has been assigned to the
Indenture Trustee pursuant to the Indenture as part of the collateral for the
Certificates and, as assignee, the Indenture Trustee has the benefit of Section
1110.
The foregoing opinions are subject to the following
qualifications:
(a) We have relied, with your consent, without independent
investigation and verification and subject to the assumptions and
qualifications contained therein, upon the opinions of Daugherty,
Fowler & Peregrin and George W. Hearn, Vice President - Law of
Federal Express to be delivered to you and dated the date hereof, for
purposes of the matters covered thereby.
(b) We are qualified to practice law in the State of New York,
and we do not purport to be experts on, or to express any opinion
herein concerning, any laws other than the laws of the State of New
York, the laws of the United States and the General Corporation Law
of the State of Delaware. We express no opinion as to any matters
involving aviation law.
(c) The opinion contained in paragraph 3(A) above as to
enforceability is subject to (i) applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement
of creditors' rights generally and (ii) general principles of equity
which may affect the remedies provided in the agreements referred to
in said opinions, which laws and principles, however, do not in our
opinion make the remedies provided in said agreements inadequate for
the practical realization of the benefits of the security intended to
be provided thereby.
(d) This opinion is rendered solely to you at Federal Express's
request in connection with the above matter. This opinion may not be
relied upon by you for any other purpose or relied upon by any other
Person without our prior written consent.
Very truly yours,
Davis Polk & Wardwell
SCHEDULE A
----------
Lessee
Federal Express Corporation
2007 Corporate Avenue
Memphis, Tennessee 38132
Owner Trustee
State Street Bank and Trust Company
of Connecticut, National Association
Two International Place
4th Floor
Boston, Massachusetts 02110
Indenture Trustee, Pass Through Trustee & Subordination Agent
First Security Bank, National Association
79 South Main Street
Salt Lake City, Utah 84111
Underwriters
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
First Chicago Capital Markets, Inc.
Corporate Securities
One First National Plaza
Chicago, Illinois 60670
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
J.P. Morgan & Co.
60 Wall Street
New York, New York 10260
Liquidity Provider
Kredietbank N.V., New York Branch
125 West 55th Street
New York, New York 10019
Owner Participant
EXHIBIT A(2)
[Letterhead of Ray, Quinney & Nebeker]
[Certificate Closing Date]
To the Persons Listed in Schedule A Attached Hereto
Re: Federal Express Corporation Trust No. N583FE
Ladies and Gentlemen:
We have acted as special counsel to First Security Bank,
National Association, a national banking association ("First Security"), in
connection with the Participation Agreement (Federal Express Corporation Trust
No. N583FE), dated as of May 1, 1997 (the "Participation Agreement"), among
Federal Express Corporation, as Lessee and Initial Owner Participant, State
Street Bank and Trust Company of Connecticut, National Association, not in its
individual capacity, except as otherwise stated, but solely as Owner Trustee,
and First Security, not in its individual capacity, except as otherwise
stated, but solely as Indenture Trustee, Pass Through Trustee and
Subordination Agent. Pursuant to the Participation Agreement, one McDonnell
Douglas MD-11F aircraft bearing U.S. Registration No. 1752K (the "Aircraft")
is being financed. This opinion is furnished pursuant to Section 4.01(k)(iv)
of the Participation Agreement. Capitalized terms used herein and not
otherwise defined are used as defined in the Participation Agreement, except
that references herein to any instrument shall mean such instrument as in
effect on the date hereof.
We have examined executed counterparts or copies otherwise
identified to our satisfaction of the following documents:
(a) The Participation Agreement;
(b) The Indenture;
(c) The Ancillary Agreement I;
(d) The Ancillary Agreement II:
(e) The Collateral Account Control Agreement; and
(f) The Certificates.
(each of the documents identified in paragraphs (a) through (g) above are
collectively referred to as the "Indenture Trustee Documents").
We have also examined originals or copies of such other
documents, such corporate records, certificates and other statements of
governmental officials and corporate officers and other representatives of the
corporations or entities referred to herein and such other instruments as we
have deemed necessary or appropriate for the purposes of this opinion.
Moreover, as to certain facts material to the opinions expressed herein, we
have relied upon representations and warranties contained in the Indenture
Trustee Documents.
Based upon the foregoing and upon an examination of such
questions of law as we have considered necessary or appropriate, and subject
to the assumptions, exceptions and qualifications set forth below, we advise
you that, in our opinion:
1. First Security is a national banking association duly
organized and validly existing under the laws of the United States of
America holding a valid certificate to do business as a national
banking association, with banking and trust powers, and each of First
Security and the Indenture Trustee, as the case may be, has or had,
on the date of execution thereof, full corporate power, authority and
legal right to execute, deliver and perform each of the Indenture
Trustee Documents to which it is or is to be a party and to
authenticate the Certificates delivered on the Certificate Closing
Date.
2. Each of First Security and the Indenture Trustee, as the
case may be, has duly authorized, executed and delivered each
Indenture Trustee Document to which it is a party; each such document
constitutes a legal, valid and binding obligation of the Indenture
Trustee (and, to the extent set forth in the respective Indenture
Trustee Document, of First Security) enforceable against the
Indenture Trustee (and, to the extent set forth in the respective
Indenture Trustee Document, against First Security) in accordance
with its terms.
3. The Certificates issued and dated the Certificate Closing
Date have been duly authenticated and delivered by the Indenture
Trustee pursuant to the terms of the Indenture.
4. Neither the authorization, execution and delivery by the
Indenture Trustee or First Security, as the case may be, of the
Indenture Trustee Documents, nor the authentication and delivery by
the Indenture Trustee of the Certificates nor the fulfillment or
compliance by the Indenture Trustee or First Security with the
respective terms and provisions thereof nor the consummation of any
of the transactions by the Indenture Trustee or First Security, as
the case may be, contemplated thereby, requires the consent or
approval of, the giving of notice to, the registration with, or the
taking of any other action in respect of, any court or administrative
or governmental authority or agency of the State of Utah or the
United States of America governing the banking or trust powers of
First Security.
5. The execution, delivery and performance by the Indenture
Trustee or First Security, as the case may be, of each of the
Indenture Trustee Documents and the authentication and delivery of
the Certificates by the Indenture Trustee are not in violation of the
charter or by-laws of First Security or of any law, governmental
rule, or regulation of the State of Utah or the United States of
America governing the banking or trust powers of First Security or,
to our knowledge, of any indenture, mortgage, bank credit agreement,
note or bond purchase agreement, long-term lease, license or other
agreement or instrument to which it is a party or by which it is
bound or, to our knowledge, of any judgment or order of the State of
Utah or the United States of America relating to the banking or trust
powers of First Security.
6. There are no fees, taxes or other governmental charges
payable by the Owner Trustee, the Indenture Trustee (except taxes
imposed on fees payable to First Security) or the Certificate Holders
to the State of Utah or any political subdivision thereof in
connection with the execution, delivery or performance of any of the
Operative Agreements or in connection with the issuance and
acquisition of the Certificates by the Certificate Holders or the
beneficial interests of the Certificate Holders in the Trust
Indenture Estate solely because First Security) (a) is incorporated
under the laws of the State of Utah, (b) has its principal place of
business in the State of Utah, (c) performs (in its individual
capacity or as Indenture Trustee) any or all of its duties under the
Indenture Trustee Documents in the State of Utah, and (d) engages in
any activities unrelated to the transactions contemplated by the
Indenture Trustee Documents in the State of Utah. Neither the
Indenture Trustee nor the trust created under the Indenture will be
subject to any fee, tax or other governmental charge (except for
taxes imposed on fees payable to First Security) under the laws of
the State of Utah or any political subdivision thereof in existence
on the date hereof, on, based on or measured by, directly or
indirectly, the gross receipts, net income or value of the Trust
Indenture Estate solely because First Security (a) is incorporated
under the laws of the State of Utah, (b) has its principal place of
business in the State of Utah, (c) performs (in its individual
capacity or as Indenture Trustee) any or all of its duties under the
Indenture Trustee Documents in the State of Utah, and (d) engages in
any activities unrelated to the transactions contemplated by the
Indenture Trustee Documents in the State of Utah. There is no fee,
tax or other governmental charge (except for taxes imposed on fees
payable to First Security) under the laws of the State of Utah or any
political subdivision thereof in existence on the date hereof, on,
based on or measured by any payments under the Certificates by reason
of the creation of the trust under the Indenture solely because First
Security (a) is incorporated under the laws of the State of Utah, (b)
has its principal place of business in the State of Utah, (c)
performs (in its individual capacity or as Indenture Trustee) any or
all of its duties under the Indenture Trustee Documents in the State
of Utah, and (d) engages in any activities unrelated to the
transactions contemplated by the Indenture Trustee Documents in the
State of Utah. We express no opinion as to whether or not any fees,
taxes or other charges are now or hereafter may be payable by the
Initial Owner Participant to the State of Utah or any political
subdivision thereof in connection with (a) the execution, delivery or
performance by any of the Indenture, the Participation Agreement or
any of the other Operative Agreements and (b) the making by the
Initial Owner Participant of its investment in the Aircraft.
7. There are no actions, suits, investigations or proceedings
pending or, to our knowledge, threatened against or affecting First
Security or the Indenture Trustee, as the case may be, or any of its
properties in any court or before any administrative agency or
arbitrator, which, if adversely determined, would materially
adversely affect the ability of First Security or the Indenture
Trustee, as the case may be, to perform its obligations under any of
the Indenture Trustee Documents, and there are no pending or, to our
knowledge, threatened actions or proceedings before any court,
administrative agency or tribunal involving First Security or the
Indenture Trustee, as the case may be, in connection with the
transactions contemplated by any of the Indenture Trustee Documents.
The foregoing opinions are subject to the following assumptions,
exceptions and qualifications:
A. We are admitted to practice law in the State of Utah and we
do not hold ourselves out as being experts on the laws of any other
jurisdiction. The foregoing opinions are limited to the laws of the State of
Utah, the federal laws of the United States of America governing the banking
and trust powers of First Security and Title II of the United States Code
entitled "Bankruptcy". However, we express no opinion with respect to (i)
federal securities laws, including the Securities Act of 1933, as amended, the
Securities Exchange Act of 1934, as amended, and the Trust Indenture Act of
1939, as amended, (ii) the Federal Aviation Act of 1958, as amended and (iii)
state securities or blue sky laws. Insofar as the foregoing opinions relate
to the validity and enforceability in the State of Utah of the Certificates
and the other Indenture Trustee Documents expressed to be governed by the laws
of the State of New York, we have assumed that the laws of New York are
identical to the laws of Utah in all material respects, and that the
Certificates and such Indenture Trustee Documents constitute legal, valid,
binding and enforceable documents or instruments under such laws (as to which
we express no opinion). No opinion is expressed as to the priority of any
security interest or as to title to any part of the Trust Estate.
B. The foregoing opinions regarding enforceability of any
document or instrument, are subject to (i) applicable bankruptcy, insolvency,
moratorium, reorganization, receivership and similar laws affecting the rights
and remedies of creditors generally, and (ii) general principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or at law).
C. We have assumed the due authorization, execution and
delivery by each of the parties thereto, other than First Security and the
Indenture Trustee, of the Indenture Trustee Documents to which each is a party
and that each of such parties has the full power, authority and legal right to
execute and deliver each such document.
D. We have assumed that all signatures (other than those of the
Indenture Trustee or First Security) on documents and instruments examined by
us are genuine, that all documents and instruments submitted to us as originals
are authentic, and that all documents and instruments submitted to us as copies
conform with the originals, which facts we have not independently verified.
E. We have assumed that the Participation Agreement and the
transactions contemplated thereby are not within the prohibitions of Section
406 of the Employee Retirement Income Security Act of 1974.
This opinion is rendered solely for your benefit and may not be
relied upon by any other person or entity for any purpose without our prior
written consent.
Very truly yours,
Ray, Quinney & Nebeker
SCHEDULE A
----------
Lessee
Federal Express Corporation
2007 Corporate Avenue
Memphis, Tennessee 38132
Owner Trustee
State Street Bank and Trust Company
of Connecticut, National Association
Two International Place
4th Floor
Boston, Massachusetts 02110
Indenture Trustee, Pass Through Trustee & Subordination Agent
First Security Bank, National Association
79 South Main Street
Salt Lake City, Utah 84111
Underwriters
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
First Chicago Capital Markets, Inc.
Corporate Securities
One First National Plaza
Chicago, Illinois 60670
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
J.P. Morgan & Co.
60 Wall Street
New York, New York 10260
Liquidity Provider
Kredietbank N.V., New York Branch
125 West 55th Street
New York, New York 10019
EXHIBIT A(3)(a)(i)
[Letterhead of Bingham, Dana & Gould]
[Certificate Closing Date]
To Each of the Parties Listed on Schedule A Hereto
Re: Federal Express Corporation Trust No. N583FE
Ladies and Gentlemen:
We have acted as counsel to State Street Bank and Trust Company
of Connecticut, National Association, a national banking association in its
individual capacity ("State Street") and its capacity as Owner Trustee (the
"Owner Trustee") under the Trust Agreement (Federal Express Corporation Trust
No. N583FE) dated as of May 1, 1997 between State Street and Federal Express
Corporation, as Initial Owner Participant ("Initial Owner Participant") (the
"Trust Agreement") in connection with the transactions contemplated by that
certain Participation Agreement (Federal Express Corporation Trust No. N583FE)
dated as of May 1, 1997 (the "Participation Agreement") by and among Federal
Express Corporation (the "Lessee"); the Initial Owner Participant; and First
Security Bank, National Association, in its individual capacity and as
Indenture Trustee (the "Indenture Trustee"), Pass Through Trustee and
Subordination Agent. Except as otherwise defined herein, all capitalized terms
used herein shall have the respective meanings set forth in, or by reference
to, the Participation Agreement.
The Owner Trustee has requested that we deliver this opinion to
you in accordance with Section 4.01 of the Participation Agreement.
Our representation of State Street has been as special counsel
for the purposes stated above. As to all matters of fact (including factual
conclusions and characterizations and descriptions of purpose, intention or
other state of mind), we have relied entirely upon (i) the representations of
the parties set forth in the Operative Agreements and (ii) certificates
delivered to us by the management of State Street and have assumed, without
independent inquiry, the accuracy of those representations and certificates.
We have examined each of the Operative Agreements to which
State Street or the Owner Trustee, as applicable is a party (the "Owner Trustee
Documents"), the Certificate of the Comptroller of the Currency relating to
State Street and originals, or copies certified or otherwise identified to our
satisfaction, of such other corporate records, documents, certificates and
other instruments as we have deemed necessary or advisable for the purposes of
rendering this opinion.
We have assumed the genuineness of all signatures (other than
those on behalf of State Street and the Owner Trustee), the conformity to the
originals of all documents reviewed by us as copies, the authenticity and
completeness of all original documents reviewed by us in original or copy form
and the legal competence of each individual executing any document (other than
on behalf of State Street and the Owner Trustee).
When an opinion set forth below is given to the best of our
knowledge, or to our knowledge, or with reference to matters of which we are
aware or which are known to us, or with another similar qualification, the
relevant knowledge or awareness is limited to the actual knowledge or
awareness of the individual lawyer in the firm that signed this opinion, the
individual lawyers in the firm who have participated directly in the specific
transactions to which this opinion relates or in the preparation of this
opinion and the partner of the firm responsible for State Street corporate
trust matters, and without any special or additional investigation undertaken
for the purposes of this opinion.
Each opinion set forth below relating to the enforceability of
any agreement or instrument against State Street, the Owner Trustee or the
Initial Owner Participant, as applicable, is subject to the following general
qualifications:
(i) as to any agreement to which State Street or the
Owner Trustee, as applicable, is a party, we assume that such
agreement is the legal, valid and binding obligation or each other
party thereto;
(ii) except as otherwise set forth in our opinions 13 and
14 below, the enforceability of any obligation of State Street, the
Owner Trustee and the Initial Owner Participant, may be limited by
bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium, marshaling, or other similar laws and rules of law
affecting the enforcement generally of creditors' rights and remedies
(including such as may deny giving effect to waivers of debtors' or
guarantors' rights);
(iii) no opinion is given herein as to the enforceability
of any particular provision of any of the Owner Trustee Documents
relating to remedies after default or as to the availability of any
specific or equitable relief of any kind. However, we are of the
opinion that, subject to the other limitations and qualifications
contained in this opinion, the remedies provided in the Owner Trustee
Documents, taken as a whole, are adequate for the realization of the
principal benefits or security of said agreements (except for the
economic consequences of procedural or other delay); and
(iv) the enforcement of any rights and the availability
of any specific or equitable relief of any kind may in all cases be
subject to an implied duty of good faith and to general principles of
equity (regardless of whether such enforceability or relief is
considered in a proceeding at law or in equity) and, as to any of
your rights to collateral security, will be subject to a duty to act
in a commercially reasonable manner.
Subject to the limitations set forth herein, we have made such
examination of law as we have deemed necessary for the purposes of this
opinion. The opinions expressed herein are limited solely to the internal
substantive laws of the State of Connecticut and the Federal laws of the United
States of America. No opinion is expressed herein as to the application or
effect of federal securities laws or as to the securities or so-called "Blue
Sky" laws of any state or other jurisdiction. In addition, no opinion is
expressed as to matters governed by the Transportation Code, or by any other
law, statute, rule or regulation of the United States relating to the
acquisition, ownership, registration, use, operation, maintenance, repair,
replacement or sale of or the nature of the Aircraft, Airframe or the Engines.
We have made no examination of, and no opinion is given herein
as to the Owner Trustee's or Initial Owner Participant's title to or other
ownership rights in, or the existence of any liens, charges or encumbrances on,
or adverse claims against, any of the Indenture Estate. We express no opinion
as to the creation, attachment, perfection or priority of any mortgage,
security interest or lien in any of the Indenture Estate.
With your permission and without investigation, with respect to
paragraphs 2, 3 and 4 below in connection with our opinion relating to the
legality, validity, binding effect of the documents there referred to, to the
extent that the laws of the State of Connecticut do not govern such documents,
we have assumed that the laws of the jurisdictions whose laws govern such
documents are not materially different from the internal substantive laws of
the State of Connecticut.
In rendering our opinion in paragraphs 12 and 13 below, we have
assumed that the Initial Owner Participant acquired its interest in the Trust
Estate for fair consideration and in good faith without any intention to
hinder, defraud or defraud or delay the Initial Owner Participant's creditors.
This opinion is rendered solely for the benefit of those
institutions listed on Schedule A hereto and their respective successors and
assigns in connection with the transactions contemplated by the Operative
Agreements and may not be used or relied upon by any other person or for any
other purpose.
Based upon the foregoing, we are of the opinion that:
1. State Street is a national banking association duly
organized, validly existing and in good standing with the Comptroller
of the Currency under the laws of the United States of America, is a
"citizen of the United States" within the meaning of Section
40102(a)(15) of Title 49 of the United States Code, as amended and
has full corporate power, authority and legal right to execute,
deliver and perform its obligations under the Trust Agreement and, as
Owner Trustee under the Trust Agreement, to execute, deliver and
perform its obligations under the other Owner Trustee Agreements and
to issue, execute, deliver and perform its obligations under the
Certificate.
2. State Street has duly authorized, executed, and delivered
the Participation Agreement and the Trust Agreement and the
Participation Agreement and the Trust Agreement constitute the legal,
valid and binding obligation of State Street, enforceable against it
in its individual capacity in accordance with the terms thereof.
3. The Owner Trustee is duly authorized under the Trust
Agreement to execute, deliver and perform each of the Owner Trustee
Agreements and each such Owner Trustee Agreement constitutes a legal,
valid and binding obligation of the Owner Trustee enforceable against
the Owner Trustee in accordance with its terms. The Certificate has
been duly issued, executed and delivered by the Owner Trustee,
pursuant to authorization contained in the Trust Agreement, and
assuming due authentication thereof by the Indenture Trustee,
constitutes the legal, valid and binding obligation of the Owner
Trustee enforceable against the Owner Trustee in accordance with its
terms and the terms of the Indenture; and the Certificate is entitled
to the benefits and security afforded by the Indenture in accordance
with its terms and the terms of the Indenture.
4. Assuming the due authorization, execution and delivery of
the Trust Agreement by the Initial Owner Participant and that the
Initial Owner Participant has the requisite corporate power and
authority to enter into and perform its obligations under the Trust
Agreement, said Trust Agreement constitutes the legal, valid and
binding obligation of the Initial Owner Participant, enforceable
against the Initial Owner Participant in accordance with the terms
thereof.
5. The Trust Agreement duly creates a legal and valid trust
under Connecticut law; the trust created by the Trust Agreement
exists for the benefit of the Initial Owner Participant as provided
therein and creates for the benefit of the Initial Owner Participant
the interest in the Trust Estate which the Trust Agreement by its
terms purports to create, subject however to the provisions of, and
the Liens created by, the Indenture and the Lease.
6. To the extent that the Uniform Commercial Code of the State
of Connecticut (the "UCC") is applicable, except for the Indenture
Trustee's taking possession of all monies and securities (including
instruments) constituting part of the Trust Indenture Estate, no
action, including the filing or recording of any document, is
necessary (i) to create under the UCC the security interest in the
Trust Indenture Estate (including the grant and assignment unto the
Indenture Trustee of the security interest in all estate, right,
title and interest of the Owner Trustee in, to and under the Lease
and the Participation Agreement) which the Indenture by its terms
purports to create in favor of the Indenture Trustee, and (ii) to
perfect in the State of Connecticut such security interest, except
for the filing of a UCC financing statement complying with the formal
requisites of Section 9-402 of the UCC in the office of the Division
of Corporations and Commercial Code of the State of Connecticut with
respect to the security interest, which filing has been duly
effected, and the filing of continuation statements with respect
thereto required to be filed at periodic intervals under the UCC.
7. Neither the execution, delivery or performance by the Owner
Trustee, in its individual capacity or as Owner Trustee, as the case
may be, of the Certificates or the Owner Trustee Documents, the
consummation by the Owner Trustee, in its individual capacity or as
Owner Trustee, as the case may be, of any of the transactions
contemplated thereby nor the compliance by the Owner Trustee, in its
individual capacity or as Owner Trustee, as the case may be, with any
of the terms and provisions thereof (i) requires any approval of its
stockholders, any consent or approval of or the giving of notice to
any trustees or holders of any indebtedness or obligations of it
known to us, or (ii) violates its charter documents or by-laws, or
contravenes or will contravene any provision of, or constitutes a
default under, or results in any breach of, or results in the
creation of any Lien (other than as permitted under the Operative
Agreements) upon property under, any indenture, mortgage, chattel
mortgage, deed of trust, conditional sales contract, bank loan or
credit agreement, license or other agreement or instrument, in each
case, known to us to which it is a party or by which it is bound or
contravenes any Connecticut or United States applicable law governing
the banking or trust powers of the Owner Trustee, or any judgment or
order in each case, known to us applicable to or binding on it.
8. To our knowledge, there are no proceedings or actions
pending or threatened against or affecting the Owner Trustee, in its
individual capacity or as Owner Trustee, before any governmental
authority which, individually or in the aggregate, if adversely
determined, would materially and adversely affect the ability of the
Owner Trustee, in its individual capacity or as Owner Trustee, as the
case may be, to enter into or to perform its obligations under the
Owner Trustee Documents or the Certificate.
9. No consent, approval, order or authorization of, giving of
notice to, or registration with, or taking of any other action in
respect of, any Connecticut or United States governmental authority
regulating the banking or trust powers of the Owner Trustee, in its
individual capacity, is required for the execution and delivery of,
or the carrying out by, the Owner Trustee in its individual capacity
or as Owner Trustee, as the case may be, of any of the transactions
contemplated by the Owner Trustee Documents, other than any such
consent, approval, order, authorization, registration, notice or
action as has been duly obtained, given or taken.
10. There are no fees, taxes or other charges payable by the
Owner Trustee, the Trust Estate or the trust created by the Trust
Agreement imposed by the State of Connecticut or any political
subdivision or taxing authority thereof in connection with the
execution, delivery and performance by State Street, individually or
as Owner Trustee, of the Owner Trust Documents (other than franchise
or other taxes based on or measured by any fees or compensation
received by State Street, acting as the Owner Trustee, for services
rendered in connection with the transactions contemplated by the
Operative Agreements) and, assuming that the trust created by the
Trust Agreement will not be taxable as a corporation, but, rather,
will be characterized as a grantor trust under subpart E, Part I of
Subchapter J of the Internal Revenue Code of 1986, as amended, or
will be otherwise ignored for Federal tax purposes, (i) such trust
will not be subject to any fees, taxes or other charges imposed by
the State of Connecticut or any political subdivision thereof based
on income, receipts, value or otherwise, (ii) Holders that are not
residents of or otherwise subject to tax in Connecticut will not be
subject to any taxes imposed by the State of Connecticut or any
political subdivision thereof as a result of purchasing, holding
(including receiving payments with respect to) or selling a
Certificate and (iii) assuming the Initial Owner Participant is not a
Connecticut resident or otherwise subject to tax in Connecticut and
further assuming that the assets of the trust created by the Trust
Agreement are not deemed to be located in Connecticut, the Initial
Owner Participant will not be subject to any taxes imposed by the
State of Connecticut or any political subdivision thereof solely as a
result of being the beneficial owner of the trust created by the
Trust Agreement.
11. To our knowledge, there exist no liens or encumbrances
affecting the right, title and interest of the Owner Trustee in and
to the Trust Estate resulting from claims against State Street not
related to the ownership of the Trust Estate or any other transaction
contemplated by the Operative Agreements.
12. All the properties which are part of the Indenture Estate
(including all right, title and interest of the Owner Trustee pledged
and mortgaged by it pursuant to the Indenture) have been pledged and
mortgaged with the Indenture Trustee as part of the Indenture Estate,
and the beneficial interest of the Initial Owner Participant under
the Trust Agreement in and to such properties is subject, to the
extent provided in the Indenture, to the liens of the Indenture in
favor of the holders from time to time of the Certificate.
13. Neither a Connecticut court nor a Federal court applying
federal law or Connecticut law, if properly presented with the issue
and after having properly considered such issue, would permit the
Initial Owner Participant to terminate the Trust Agreement, except as
otherwise provided therein, until the Lien of the Indenture on the
Indenture Estate has been released and until payment in full of the
principal of, and premium, if any, and interest on, the Certificates
and all other sums due the holders of the Certificates has been made.
14. Under the laws of the State of Connecticut, as long as the
Trust Agreement has not been terminated in accordance with its terms,
creditors of any person that is an Initial Owner Participant, holders
of a lien against the assets of any such person and representatives of
creditors of any such person, such as trustees, receivers or
liquidators (whether or not any insolvency proceeding has been
commenced) (collectively the "Creditors") may acquire legal, valid
and enforceable claims and liens, as to the Trust Estate, only
against the beneficial interest of such person in the Trust Estate,
and do not have, and may not through the enforcement of such
Creditors' rights acquire, any other legal, valid, and enforceable
claim or lien against the Trust Estate.
Very truly yours,
Bingham, Dana & Gould LLP
SCHEDULE A
----------
Lessee
Federal Express Corporation
2007 Corporate Avenue
Memphis, Tennessee 38132
Owner Trustee
State Street Bank and Trust Company
of Connecticut, National Association
Two International Place
4th Floor
Boston, Massachusetts 02110
Indenture Trustee, Pass Through Trustee & Subordination Agent
First Security Bank, National Association
79 South Main Street
Salt Lake City, Utah 84111
Underwriters
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
First Chicago Capital Markets, Inc.
Corporate Securities
One First National Plaza
Chicago, Illinois 60670
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
+J.P. Morgan & Co.
60 Wall Street
New York, New York 10260
Liquidity Provider
Kredietbank N.V., New York Branch
125 West 55th Street
New York, New York 10019
[Letterhead of Bingham, Dana & Gould]
[Certificate Closing Date]
To Each of the Parties Listed on Schedule A Hereto
Re: Trust Indenture and Security Agreement (Federal Express
Corporation Trust No. N583FE) dated as of May 1, 1997 (the
"Indenture"), between First Security Bank, National Association
(the "Indenture Trustee"), and State Street Bank and Trust
Company of Connecticut, National Association, not in its
individual capacity, but solely as Owner Trustee (the "Owner
Trustee")
Ladies and Gentlemen:
We have acted as special Connecticut counsel to the Owner
Trustee in connection with the Indenture and the Collateral Account Control
Agreement dated as of May 1, 1997 (the "Control Agreement"), among the Owner
Trustee, the Indenture Trustee and State Street Bank and Trust Company, as
Custodian (the "Custodian").
We are issuing this opinion solely in our capacity as counsel
to the Owner Trustee under the circumstances set forth in this paragraph and
solely as to the matters set forth herein. Pursuant to the Indenture, the
Owner Trustee purports to grant to the Indenture Trustee a security interest,
inter alia, in those securities and instruments, presently owned or hereafter
acquired by the Owner Trustee, that are from time to time credited to an
account numbered [*****] (the "Collateral Account") established by the Owner
Trustee with the Custodian and which securities and instruments the Owner
Trustee has directed the Custodian to identify on the books and records of the
Custodian as being subject to a security interest in favor of the Indenture
Trustee to secure the payment to the Indenture Trustee of the Owner Trustee's
obligations (the "Obligations") under the Indenture. Those securities and
instruments which the Owner Trustee has directed the Custodian to so identify
on the books of the Custodian as being subject to such security interest, and
which, at the time of reference thereto, have not been withdrawn from such
identification or the Collateral Account, are hereinafter referred to,
collectively, as the "Liquid Collateral." We have assumed with your
permission for purposes of this opinion that the Liquid Collateral consists
solely of (a) "securities", either "uncertificated securities" or
"certificated securities", as each such term is defined in Section 8-102 of
the Uniform Commercial Code as currently in effect in the State of Connecticut
(the "Connecticut UCC"), (b) "instruments" (as such term is defined in Section
9-105(1)(i) of the Connecticut UCC) and (c) "general intangibles" (as such
term is defined in Section 9-106 of the Connecticut UCC).
For purposes of this opinion, we have examined the Indenture,
the Control Agreement and such other documents and instruments as are referred
to as having been examined by us for purposes of our opinion letter dated May
___,1997, addressed to the parties listed on Schedule A hereto.
As to all matters of fact, we have examined and have relied
entirely upon the representations and warranties contained in and made
pursuant to the Indenture and the Control Agreement, without any independent
investigation of any kind.
We have assumed the genuineness of all signatures (other than
those on behalf of the Owner Trustee and the Custodian), the conformity to the
originals of all documents reviewed by us as copies, the authenticity and
completeness of all original documents reviewed by us in original or copy form,
and the legal competence of each individual executing any document (other than
on behalf of the Owner Trustee and the Custodian).
For purposes of this opinion, we have made such examination of
law as we have deemed necessary. This opinion is limited solely to the
internal substantive laws of the State of Connecticut as applied by courts
located in the State of Connecticut and, where applicable, (i) the revised
Article 8 of the Uniform Commercial Code (with Conforming and Miscellaneous
Amendments to Articles 1, 3, 4, 5, 9 and 10) 1994 Official Text (the "Revised
Article 8") and (ii) the federal laws of the United States of America, in each
case without regard to choice of law. No opinion is given as to the choice of
law which any tribunal may apply to the transactions referred to herein.
Our opinion is further subject to the following exceptions,
qualifications and assumptions, all of which we understand to be acceptable to
you:
(a) We have assumed without any independent investigation
that each party to the transactions contemplated by the Indenture or
the Control Agreement at all times relevant thereto (other than the
Owner Trustee) was duly organized, validly existing and in good
standing under the laws of the jurisdiction in which it was
incorporated or organized, and had and has the full power, authority
and legal right under its certificate of incorporation, articles of
organization and other governing documents, corporate or other
enterprise legislation and applicable laws, as the case may be, to
execute and deliver and perform its obligations under all documents
executed by it in connection with those transactions.
(b) We have assumed without any independent investigation (i)
the due authorization, execution and delivery of each of the Indenture
and the Control Agreement by the Indenture Trustee, (ii) that the
execution, delivery and performance by the Indenture Trustee of each
of the Indenture and the Control Agreement does not and will not
conflict with, or result in a breach of, the terms, conditions or
provisions of, or result in a violation of, or constitute a default
or require any consent (other than such consents as have been duly
obtained) under, any organizational document, any order, judgment,
arbitration award or stipulation, or any agreement, to which the
Indenture Trustee is a party or is subject or by which any of the
properties or assets of the Indenture Trustee is bound, (iii) that
the Owner Trustee has received "value," as defined under the
Connecticut UCC, for the incurrence of the Obligations, (iv) that,
whenever the Custodian receives instructions from the Owner Trustee
for the Custodian to note on its books and records that any
securities or instruments credited to the Collateral Account are to be
subject to a security interest in favor of the Indenture Trustee to
secure the payment of the Obligations, such instructions will have
been duly authorized by or on behalf of the Owner Trustee and (v)
that, when the Indenture Trustee is to act in connection with any of
the transactions contemplated by the Indenture, it is acting in its
capacity as Indenture Trustee.
(c) We have made no examination of, and no opinion is given
herein as to, the Owner Trustee's title to or other ownership rights
in, or the existence of any liens, charges or encumbrances on, or
adverse claims against, the Liquid Collateral, other than the
security interest in favor of the Indenture Trustee as contemplated
by the Indenture and the Control Agreement, and have assumed that the
Owner Trustee has, or at the time of any purported attachment of the
security interest in the relevant Liquid Collateral will have, rights
in the Liquid Collateral.
(d) The perfection and the effect of perfection and
non-perfection of a security interest in the Liquid Collateral that
comprises "uncertificated securities" are, pursuant to Section
9-103(6) of the Connecticut UCC, and the effectiveness of
registration by the issuer and the rights and duties of the issuer
with respect to the registration of transfer, pledge or release of an
"uncertificated security" are, pursuant to Section 8-106 of the
Connecticut UCC, in each case, governed by the laws of the respective
jurisdictions of organization of the issuer or issuers of such
securities, including the conflict of laws rules of such
jurisdictions. Therefore, we express no opinion with respect to such
matters regarding "uncertificated securities" issued by issuers
organized outside of the State of Connecticut other than book-entry
Treasury securities referred to below.
(e) We point out that, pursuant to Part 357 of Title 31 of the
United States Code of Federal Regulations ("CFR"), with respect to
United States "book-entry Treasury securities" maintained by a Federal
Reserve Bank and, pursuant to other relevant sections of the CFR, with
respect to various other securities issued or guaranteed by the
federal government of the United States or an agency thereof or a
corporation sponsored thereby and maintained by a Federal Reserve
Bank, the perfection of security interests granted by commercial,
non-governmental parties in book-entry Treasury securities, or such
other federal securities, as the case may be, held in a securities
account of a participant financial institution, such as the
Custodian, maintaining such account with such Federal Reserve Bank,
will be governed by the law of the jurisdiction determined in
accordance with Section 357.11 of Title 31 of the CFR. If that
jurisdiction has not adopted Revised Article 8, then such jurisdiction
will be deemed to have adopted Revised Article 8 for purposes of
determining the law governing such perfection. Accordingly, although
Revised Article 8 has not been enacted by Connecticut as part of the
Connecticut UCC, nevertheless, pursuant to Part 357 of Title 31 of the
CFR, Revised Article 8 governs the perfection of a security interest
in book-entry Treasury securities to the extent that Connecticut law
would otherwise be applicable thereto.
(f) We have also assumed that (i) any securities comprised in
the Liquid Collateral and held by Depository Trust Company or another
clearing corporation will be held by Depository Trust Company or such
other clearing corporation for the direct account of the Custodian
and not for the account of the Custodian through any other financial
intermediary, (ii) any securities comprised in the Liquid Collateral
and not constituting either (x) "certificated securities" (as defined
in Section 8-102 of the Connecticut UCC) for which the Custodian
physically holds the certificate or certificates evidencing solely
such securities, or (y) "uncertificated securities" (as defined in
Section 8-102 of the Connecticut UCC) for which the Custodian is the
registered owner on the books of the issuer solely of such
securities, will constitute, or will be held as part of, a fungible
bulk of such "securities" that are registered in the name of the
Custodian or are shown on the Custodian's account on the books of
another financial intermediary, (iii) any "certificated securities"
(as defined in Section 8-102 of the Connecticut UCC) comprised in the
Collateral, if held directly by the Custodian, will be at all times
in the physical possession of the Custodian, and any other
"instruments" (as defined in Section 9-105(1)(i) of the Connecticut
UCC) comprised in the Collateral will be at all times held directly
by and in the physical possession of the Custodian, and (iv) any
securities comprised in the Liquid Collateral consisting of
"book-entry Treasury securities" or other uncertificated federal
securities will be credited to a direct account of the Custodian with
a Reserve Bank (as such term is defined in the relevant section of
the CFR) and not for the account of the Custodian through a financial
intermediary.
(g) We do not express any opinion as to the attachment or
perfection of any security interest in (i) any securities that are
maintained with, or held on the system of, Cedel S.A., or any like
maintenance, clearing or settlement system operating outside of the
United States of America, (ii) any collateral of a type other than
"securities" or "general intangibles" (as defined in Section 9-106 of
the Connecticut UCC) or "instruments" (as defined in Section
9-105(1)(i) of the Connecticut UCC), (iii) the Collateral Account, to
the extent that the Collateral Account constitutes an asset, other
than general intangibles, separate from the property credited
thereto, (iv) any Liquid Collateral which, at the time of reference
thereto, is no longer identified as subject to a security interest
in favor of the Indenture Trustee or has otherwise been withdrawn from
the Collateral Account, or (v) any identifiable proceeds of any Liquid
Collateral (A) following the lapse of the ten day period set forth in
Section 9-306(3) of the Connecticut UCC, to the extent that such
proceeds do not constitute securities, instruments or general
intangibles in which a security interest is perfected in the manner
contemplated by this opinion, as if such proceeds were original
Liquid Collateral, (B) where such proceeds constitute securities and
in which proceeds a security interest is not perfected in the manner
contemplated by this opinion, as if such proceeds were original
collateral, or (C) where the proceeds constitute collateral which is
excluded from Article 8 or 9 of the Connecticut UCC.
(h) We express no opinion as to the priority of such security
interest over any other or competing interest in or claims against
such Liquid Collateral.
(i) We have assumed that (i) the Custodian, in the ordinary
course of business, accepts for deposit securities as a service for
its customers, maintains securities accounts in the names of such
customers reflecting ownership of or interests in such securities,
and, in regard to the transactions contemplated by the Indenture, is
acting in such capacity, (ii) all securities from time to time
credited to the Collateral Account and to be comprised in the Liquid
Collateral will have been "transferred" (within the meaning of
Section 8-313(1) of the Connecticut UCC) to the Custodian by the
issuers or prior holders of such Liquid Collateral, (iii) the records
of the Custodian indicate and will, at the time of reference thereto,
indicate that the aggregate amount of each security comprised in the
Liquid Collateral, together with all other such securities carried by
the Custodian for its customers and for its proprietary account, is
at least equal to the aggregate amount of such security carried by it
for its customers and for its proprietary account, (iv) the books and
records of the Custodian indicate and will, at the time of reference
thereto, indicate that the securities to be comprised in the Liquid
Collateral are registered on the books and records of the Custodian
as being for the beneficial account of the Owner Trustee, subject to,
as identified on such books and records, the security interest
therein in favor of the Indenture Trustee, and (v) the Custodian has
sent and, at the time of reference thereto, will have sent the
confirmations of such entries and identifications to the Indenture
Trustee and to Federal Express Corporation.
(j) In so far as our opinion relates to the enforceability of
any obligations of the Owner Trustee, the enforcement of such
obligations may be limited by bankruptcy, insolvency, reorganization,
moratorium, marshalling or other laws and rules of law affecting the
enforcement generally of creditors' rights and remedies (including
such as may deny giving effect to waivers of debtors' or guarantors'
rights); and we express no opinion as to (i) the status under Section
548 of the Bankruptcy Code and applicable state fraudulent conveyance
laws of the obligations of the Owner Trustee under the Indenture or
interests purported to be granted pursuant to the Indenture, (ii) the
enforceability of any particular provision of the Indenture relating
to remedies after default or as to the availability of any specific
or equitable relief of any kind (and we point out that the
enforcement of any of your rights may in all cases be subject to an
implied duty of good faith and fair dealing and to general principles
of equity, regardless of whether such enforceability is considered in
a proceeding at law or in equity, and, as to any of your rights to
collateral security, will be subject to a duty to act in a
commercially reasonable manner) or (iii) the enforceability of any
particular provision of the Indenture relating to (A) waivers of
defenses, of rights to trial by jury, or rights to object to
jurisdiction or venue and other rights or benefits bestowed by
operation of law, (B) the effect of suretyship defenses, or defenses
in the nature thereof, with respect to obligations of any applicable
guarantor, joint obligator or surety, (C) waivers of provisions which
are not capable of waiver under Sections 1-102(3) and 9-501(3) of the
Connecticut UCC, (D) the grant of powers of attorney to the Indenture
Trustee, (E) exculpation clauses, indemnity clauses and clauses
relating to releases or waivers of unmatured claims or rights, (F)
interest or other charges that may be usurious under applicable law,
or (G) the collection of interest on overdue interest or providing
for a penalty rate of interest or late charges on overdue or
defaulted obligations. However, notwithstanding the qualification set
forth in the foregoing clause (ii), and excluding the parenthetical
in that clause, subject to the other exceptions, qualifications and
limitations set forth in this opinion (including the parenthetical in
clause (ii) and subject to the fact that there may be economic
consequences arising out of any procedural or other delay on account
of the limitation or unenforceability of any particular provision of
the Indenture relating to remedies after default, such limitation or
unenforceability does not, in our judgment, render the provisions of
the Indenture and the Control Agreement relating to remedies after
default, taken as a whole, inadequate for the practical realization
of the benefits of enforcement of a security interest in the Liquid
Collateral following the receipt by the Custodian of an enforcement
notice properly given under the Indenture and the Control Agreement by
the Indenture Trustee to the Custodian with respect to such Liquid
Collateral.
(k) With respect to property as to which the security interest
purported to be granted pursuant to the Indenture attaches after the
date hereof, we call to your attention that Section 552 of the
Bankruptcy Code limits the extent to which assets acquired by a
debtor after the commencement of a case under the United States
Bankruptcy Code may be subject to a security interest arising from a
security agreement entered into by the debtor before the commencement
of such case. We further call to your attention that under Section
547 of the Bankruptcy Code, a security interest that attaches within
the relevant period set forth in Section 547(b)(4) of the Bankruptcy
Code may be avoidable under certain circumstances.
Based upon and subject to the foregoing, we are of the opinion
that:
1. The Indenture Trustee has, under the terms of the
Connecticut UCC and, in the case of book-entry Treasury securities,
under the CFR, a perfected security interest in the Liquid Collateral
that constitutes "securities" (as such term is defined in Section
8-102 of the Connecticut UCC), or "instruments" (as defined in
Section 9-105(1)(i) of the Connecticut UCC), and in the identifiable
proceeds thereof to secure the payment of the Obligations.
2. The Indenture creates, under the terms of the Connecticut
UCC, a valid security interest in such of the Liquid Collateral that
constitutes "general intangibles" (as such term is defined in Section
9-106 of the Connecticut UCC) and in the identifiable proceeds
thereof to secure the payment of the Obligations. Upon the filing of
a financing statement on form UCC-1 pursuant to the Connecticut UCC
with the Secretary of State of the State of Connecticut naming the
Owner Trustee as Debtor and the Indenture Trustee as Secured Party
and accurately describing the Liquid Collateral and the Collateral
Account, which filing has been duly effected, such security interest
will be perfected (to the extent that the perfection of a security
interest in the Liquid Collateral can be accomplished by the filing
in Connecticut of financing statements under the Connecticut UCC).
We point out that:
(a) The effectiveness of a financing statement will lapse (i)
on the expiration of a five-year period from their dates of filing,
or (if later) five years from the last date as to which such
financing statements were effective following the proper filing of
continuation statements with respect thereto, unless continuation
statements are filed within six months prior to the expiration of the
applicable five-year period, (ii) with respect to general intangibles
in which a security interest has been perfected by the filing of a
financing statement in the jurisdiction of the location of the
debtor, for a period of more than four months after the debtor has
changed its location from that jurisdiction to a new jurisdiction
unless such security is perfected in the new jurisdiction within the
earlier to occur of the end of such four month period or the date on
which such financing statement would have otherwise lapsed, and (iii)
with respect to "investment property," under and as defined in
Revised Article 8, in which a security interest has been perfected by
the filing of a financing statement in the jurisdiction of the
location of the debtor, from the time that the debtor changes its
location from that jurisdiction to a new jurisdiction unless such
security interest is perfected in the new jurisdiction on or before
the time of such change of location.
(b) If any debtor changes its name, identity or corporate
structure such that any financing statement becomes misleading, such
financing statement will be ineffective to perfect a security
interest in any collateral acquired by such debtor more than four
months after such change.
We assume no obligation to update this opinion as a result of
any change in any fact, circumstance or statute or other rule of law
occurring after the date hereof.
This opinion is delivered to you solely in connection with the
transactions referred to herein and for your sole use and no other
person or entity may rely on this opinion without our express written
consent.
Very truly yours,
Bingham, Dana & Gould LLP
SCHEDULE A
----------
Lessee
Federal Express Corporation
2007 Corporate Avenue
Memphis, Tennessee 38132
Owner Trustee
State Street Bank and Trust Company
of Connecticut, National Association
Two International Place
4th Floor
Boston, Massachusetts 02110
Indenture Trustee, Pass Through Trustee & Subordination Agent
First Security Bank, National Association
79 South Main Street
Salt Lake City, Utah 84111
Underwriters
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
First Chicago Capital Markets, Inc.
Corporate Securities
One First National Plaza
Chicago, Illinois 60670
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
J.P. Morgan & Co.
60 Wall Street
New York, New York 10260
Liquidity Provider
Kredietbank N.V., New York Branch
125 West 55th Street
New York, New York 10019
EXHIBIT A(3)(a)(ii)
[Letterhead of Bingham, Dana & Gould]
[Delivery Date]
To Each of the Parties Listed on Schedule A Hereto
Re: Federal Express Corporation Trust No. N583FE
Ladies and Gentlemen:
We have acted as counsel to State Street Bank and Trust Company
of Connecticut, National Association, a national banking association in its
individual capacity ("State Street") and its capacity as Owner Trustee (the
"Owner Trustee") under the Trust Agreement (Federal Express Corporation Trust
No. N583FE) dated as of May 1, 1997 between State Street and
___________________, as Owner Participant ("Owner Participant") (the "Trust
Agreement") in connection with the transactions contemplated by that certain
Participation Agreement (Federal Express Corporation Trust No. N583FE) dated
as of May 1, 1997 (the "Participation Agreement") by and among Federal Express
Corporation (the "Lessee"); the Owner Participant; and First Security Bank,
National Association, in its individual capacity and as Indenture Trustee (the
"Indenture Trustee"), Pass Through Trustee and Subordination Agent. Except as
otherwise defined herein, all capitalized terms used herein shall have the
respective meanings set forth in, or by reference to, the Participation
Agreement.
The Owner Trustee has requested that we deliver this Opinion to
you in accordance with Section 4.02 of the Participation Agreement.
Our representation of State Street has been as special counsel
for the purposes stated above. As to all matters of fact (including factual
conclusions and characterizations and descriptions of purpose, intention or
other state of mind), we have relied entirely upon (i) the representations of
the parties set forth in the Operative Agreements and (ii) certificates
delivered to us by the management of State Street and have assumed, without
independent inquiry, the accuracy of those representations and certificates.
We have examined each of the Operative Agreements to which
State Street or the Owner Trustee, as applicable is a party (the "Owner Trustee
Documents"), the Certificate of the Comptroller of the Currency relating to
State Street and originals, or copies certified or otherwise identified to our
satisfaction, of such other corporate records, documents, certificates and
other instruments as we have deemed necessary or advisable for the purposes of
rendering this opinion.
We have assumed the genuineness of all signatures (other than
those on behalf of State Street and the Owner Trustee), the conformity to the
originals of all documents reviewed by us as copies, the authenticity and
completeness of all original documents reviewed by us in original or copy form
and the legal competence of each individual executing any document (other than
on behalf of State Street and the Owner Trustee).
When an opinion set forth below is given to the best of our
knowledge, or to our knowledge, or with reference to matters of which we are
aware or which are known to us, or with another similar qualification, the
relevant knowledge or awareness is limited to the actual knowledge or
awareness of the individual lawyer in the firm that signed this opinion, the
individual lawyers in the firm who have participated directly in the specific
transactions to which this opinion relates or in the preparation of this
opinion and the partner of the firm responsible for State Street corporate
trust matters, and without any special or additional investigation undertaken
for the purposes of this opinion.
Each opinion set forth below relating to the enforceability of
any agreement or instrument against State Street, the Owner Trustee or the
Owner Participant, as applicable, is subject to the following general
qualifications:
(i) as to any agreement to which State Street or the
Owner Trustee, as applicable, is a party, we assume that such
agreement is the legal, valid and binding obligation or each other
party thereto;
(ii) except as otherwise set forth in our opinions 13 and
14 below, the enforceability of any obligation of State Street, the
Owner Trustee and the Owner Participant, may be limited by bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium,
marshaling, or other similar laws and rules of law affecting the
enforcement generally of creditors' rights and remedies (including
such as may deny giving effect to waivers of debtors' or guarantors'
rights);
(iii) no opinion is given herein as to the enforceability
of any particular provision of any of the Owner Trustee Documents
relating to remedies after default or as to the availability of any
specific or equitable relief of any kind. However, we are of the
opinion that, subject to the other limitations and qualifications
contained in this opinion, the remedies provided in the Owner Trustee
Documents, taken as a whole, are adequate for the realization of the
principal benefits or security of said agreements (except for the
economic consequences of procedural or other delay); and
(iv) the enforcement of any rights and the availability
of any specific or equitable relief of any kind may in all cases be
subject to an implied duty of good faith and to general principles of
equity (regardless of whether such enforceability or relief is
considered in a proceeding at law or in equity) and, as to any of
your rights to collateral security, will be subject to a duty to act
in a commercially reasonable manner.
Subject to the limitations set forth herein, we have made such
examination of law as we have deemed necessary for the purposes of this
opinion. The opinions expressed herein are limited solely to the internal
substantive laws of the State of Connecticut and the Federal laws of the United
States of America. No opinion is expressed herein as to the application or
effect of federal securities laws or as to the securities or so-called "Blue
Sky" laws of any state or other jurisdiction. In addition, no opinion is
expressed as to matters governed by the Transportation Code, or by any other
law, statute, rule or regulation of the United States relating to the
acquisition, ownership, registration, use, operation, maintenance, repair,
replacement or sale of or the nature of the Aircraft, Airframe or the Engines.
We have made no examination of, and no opinion is given herein
as to the Owner Trustee's or Owner Participant's title to or other ownership
rights in, or the existence of any liens, charges or encumbrances on, or
adverse claims against, any of the Indenture Estate. We express no opinion as
to the creation, attachment, perfection or priority of any mortgage, security
interest or lien in any of the Indenture Estate.
With your permission and without investigation, with respect to
paragraphs 2, 3 and 4 below in connection with our opinion relating to the
legality, validity, binding effect of the documents there referred to, to the
extent that the laws of the State of Connecticut do not govern such documents,
we have assumed that the laws of the jurisdictions whose laws govern such
documents are not materially different from the internal substantive laws of
the State of Connecticut.
In rendering our opinion in paragraphs 12 and 13 below, we have
assumed that the Owner Participant acquired its interest in the Trust Estate
for fair consideration and in good faith without any intention to hinder,
defraud or defraud or delay the Owner Participant's creditors.
This opinion is rendered solely for the benefit of those
institutions listed on Schedule A hereto and their respective successors and
assigns in connection with the transactions contemplated by the Operative
Agreements and may not be used or relied upon by any other person or for any
other purpose.
Based upon the foregoing, we are of the opinion that:
1. State Street is a national banking association duly
organized, validly existing and in good standing with the Comptroller
of the Currency under the laws of the United States of America, is a
"citizen of the United States" within the meaning of Section
40102(a)(15) of Title 49 of the United States Code, as amended and
has or had, on the date of execution thereof, full corporate power,
authority and legal right to execute, deliver and perform its
obligations under the Trust Agreement and, as Owner Trustee under the
Trust Agreement, to execute, deliver and perform its obligations
under the other Owner Trustee Agreements and to issue, execute,
deliver and perform its obligations under the Certificate.
2. State Street has or had, on the date of execution thereof,
duly authorized, executed, and delivered the Participation Agreement
and the Trust Agreement and the Participation Agreement and the Trust
Agreement constitute the legal, valid and binding obligation of State
Street, enforceable against it in its individual capacity in
accordance with the terms thereof.
3. The Owner Trustee is duly authorized under the Trust
Agreement to execute, deliver and perform each of the Owner Trustee
Agreements and each such Owner Trustee Agreement constitutes a legal,
valid and binding obligation of the Owner Trustee enforceable against
the Owner Trustee in accordance with its terms. The Certificate has
been duly issued, executed and delivered by the Owner Trustee,
pursuant to authorization contained in the Trust Agreement, and
assuming due authentication thereof by the Indenture Trustee,
constitutes the legal, valid and binding obligation of the Owner
Trustee enforceable against the Owner Trustee in accordance with its
terms and the terms of the Indenture; and the Certificate is entitled
to the benefits and security afforded by the Indenture in accordance
with its terms and the terms of the Indenture.
4. Assuming the due authorization, execution and delivery of
the Trust Agreement by the Owner Participant and that the Owner
Participant has the requisite corporate power and authority to enter
into and perform its obligations under the Trust Agreement, said
Trust Agreement constitutes the legal, valid and binding obligation
of the Owner Participant, enforceable against the owner Participant
in accordance with the terms thereof.
5. The Trust Agreement duly creates a legal and valid trust
under Connecticut law; the trust created by the Trust Agreement
exists for the benefit of the Owner Participant as provided therein
and creates for the benefit of the Owner Participant the interest in
the Trust Estate which the Trust Agreement by its terms purports to
create, subject however to the provisions of, and the Liens created
by, the Indenture and the Lease.
6. To the extent that the Uniform Commercial Code of the State
of Connecticut (the "UCC") is applicable, except for the Indenture
Trustee's taking possession of all monies and securities (including
instruments) constituting part of the Trust Indenture Estate, no
action, including the filing or recording of any document, is
necessary (i) to create under the UCC the security interest in the
Trust Indenture Estate (including the grant and assignment unto the
Indenture Trustee of the security interest in all estate, right,
title and interest of the Owner Trustee in, to and under the Lease
and the Participation Agreement) which the Indenture by its terms
purports to create in favor of the Indenture Trustee, and (ii) to
perfect in the State of Connecticut such security interest, except
for the filing of a UCC financing statement complying with the formal
requisites of Section 9-402 of the UCC in the office of the Division
of Corporations and Commercial Code of the State of Connecticut with
respect to the security interest, which filing has been duly
effected, and the filing of continuation statements with respect
thereto required to be filed at periodic intervals under the UCC.
7. Neither the execution, delivery or performance by the Owner
Trustee, in its individual capacity or as Owner Trustee, as the case
may be, of the Certificates or the Owner Trustee Documents, the
consummation by the Owner Trustee, in its individual capacity or as
Owner Trustee, as the case may be, of any of the transactions
contemplated thereby nor the compliance by the Owner Trustee, in its
individual capacity or as Owner Trustee, as the case may be, with any
of the terms and provisions thereof (i) requires any approval of its
stockholders, any consent or approval of or the giving of notice to
any trustees or holders of any indebtedness or obligations of it
known to us, or (ii) violates its charter documents or by-laws, or
contravenes or will contravene any provision of, or constitutes a
default under, or results in any breach of, or results in the
creation of any Lien (other than as permitted under the Operative
Agreements) upon property under, any indenture, mortgage, chattel
mortgage, deed of trust, conditional sales contract, bank loan or
credit agreement, license or other agreement or instrument, in each
case, known to us to which it is a party or by which it is bound or
contravenes any Connecticut or United States applicable law governing
the banking or trust powers of the Owner Trustee, or any judgment or
order in each case, known to us applicable to or binding on it.
8. To our knowledge, there are no proceedings or actions
pending or threatened against or affecting the Owner Trustee, in its
individual capacity or as Owner Trustee, before any governmental
authority which, individually or in the aggregate, if adversely
determined, would materially and adversely affect the ability of the
Owner Trustee, in its individual capacity or as Owner Trustee, as the
case may be, to enter into or to perform its obligations under the
Owner Trustee Documents or the Certificate.
9. No consent, approval, order or authorization of, giving of
notice to, or registration with, or taking of any other action in
respect of, any Connecticut or United States governmental authority
regulating the banking or trust powers of the Owner Trustee, in its
individual capacity, is required for the execution and delivery of,
or the carrying out by, the Owner Trustee in its individual capacity
or as Owner Trustee, as the case may be, of any of the transactions
contemplated by the Owner Trustee Documents, other than any such
consent, approval, order, authorization, registration, notice or
action as has been duly obtained, given or taken.
10. There are no fees, taxes or other charges payable by the
Owner Trustee, the Trust Estate or the trust created by the Trust
Agreement imposed by the State of Connecticut or any political
subdivision or taxing authority thereof in connection with the
execution, delivery and performance by State Street, individually or
as Owner Trustee, of the Owner Trust Documents (other than franchise
or other taxes based on or measured by any fees or compensation
received by State Street, acting as the Owner Trustee, for services
rendered in connection with the transactions contemplated by the
Operative Agreements) and, assuming that the trust created by the
Trust Agreement will not be taxable as a corporation, but, rather,
will be characterized as a grantor trust under subpart E, Part I of
Subchapter J of the Internal Revenue Code of 1986, as amended, or
will be otherwise ignored for Federal tax purposes, (i) such trust
will not be subject to any fees, taxes or other charges imposed by
the State of Connecticut or any political subdivision thereof based
on income, receipts, value or otherwise, (ii) Holders that are not
residents of or otherwise subject to tax in Connecticut will not be
subject to any taxes imposed by the State of Connecticut or any
political subdivision thereof as a result of purchasing, holding
(including receiving payments with respect to) or selling a
Certificate and (iii) assuming the Owner Participant is not a
Connecticut resident or otherwise subject to tax in Connecticut and
further assuming that the assets of the trust created by the Trust
Agreement are not deemed to be located in Connecticut, the Owner
Participant will not be subject to any taxes imposed by the State of
Connecticut or any political subdivision thereof solely as a result
of being the beneficial owner of the trust created by the Trust
Agreement.
11. The Owner Trustee has received such title to the Aircraft
as has been conveyed to it subject to the rights of the Owner Trustee
and the Lessee under the Lease and the security interest created
pursuant to the Indenture and the Lease; and to our knowledge, there
exist no liens or encumbrances affecting the right, title and
interest of the Owner Trustee in and to the Trust Estate resulting
from claims against State Street not related to the ownership of the
Trust Estate or any other transaction contemplated by the Operative
Agreements.
12. All the properties which are part of the Indenture Estate
(including all right, title and interest of the Owner Trustee pledged
and mortgaged by it pursuant to the Indenture) have been pledged and
mortgaged with the Indenture Trustee as part of the Indenture Estate,
and the beneficial interest of the Owner Participant under the Trust
Agreement in and to such properties is subject, to the extent
provided in the Indenture, to the liens of the Indenture in favor of
the holders from time to time of the Certificate.
13. Neither a Connecticut court nor a Federal court applying
federal law or Connecticut law, if properly presented with the issue
and after having properly considered such issue, would permit the
Owner Participant to terminate the Trust Agreement, except as
otherwise provided therein, until the Lien of the Indenture on the
Indenture Estate has been released and until payment in full of the
principal of, and premium, if any, and interest on, the Certificates
and all other sums due the holders of the Certificates has been made.
14. Under the laws of the State of Connecticut, as long as the
Trust Agreement has not been terminated in accordance with its terms,
creditors of any person that is an Owner Participant, holders of a
lien against the assets of any such person and representatives of
creditors of any such person, such as trustees, receivers or
liquidators (whether or not any insolvency proceeding has been
commenced) (collectively the "Creditors") may acquire legal, valid
and enforceable claims and liens, as to the Trust Estate, only
against the beneficial interest of such person in the Trust Estate,
and do not have, and may not through the enforcement of such
Creditors' rights acquire, any other legal, valid, and enforceable
claim or lien against the Trust Estate.
Very truly yours,
Bingham, Dana & Gould LLP
SCHEDULE A
----------
Lessee
Federal Express Corporation
2007 Corporate Avenue
Memphis, Tennessee 38132
Owner Trustee
State Street Bank and Trust Company
of Connecticut, National Association
Two International Place
4th Floor
Boston, Massachusetts 02110
Indenture Trustee, Pass Through Trustee & Subordination Agent
First Security Bank, National Association
79 South Main Street
Salt Lake City, Utah 84111
Underwriters
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
First Chicago Capital Markets, Inc.
Corporate Securities
One First National Plaza
Chicago, Illinois 60670
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
J.P. Morgan & Co.
60 Wall Street
New York, New York 10260
Liquidity Provider
Kredietbank N.V., New York Branch
125 West 55th Street
New York, New York 10019
Owner Participant
EXHIBIT A(4)
[Letterhead of Ray, Quinney & Nebeker]
[Certificate Closing Date]
To the Persons Listed in Schedule A Attached Hereto
Re: Federal Express Corporation Trust No. N583FE
Ladies and Gentlemen:
We have acted as special counsel to First Security Bank,
National Association, a national banking association ("First Security"), in
connection with the Pass Through Trust Agreement dated as of May 1, 1997 (the
"Pass Through Trust Agreement"), as supplemented by the Series Supplements
dated the date hereof between Federal Express Corporation and the First
Security, not in its individual capacity, except as otherwise stated, but
solely as Pass Through Trustee, designated as Series Supplement 1997-1-A,
1997-1-B and 1997-1-C, respectively (the "Series Supplements") and the
Participation Agreement (Federal Express Corporation Trust No. N583FE), dated
as of May 1, 1997 (the "Participation Agreement"), among Federal Express
Corporation, as Lessee and initial Owner Participant, State Street Bank and
Trust Company of Connecticut, National Association, not in its individual
capacity, except as otherwise stated, but solely as Owner Trustee, and First
Security, not in its individual capacity, except as otherwise stated, but
solely as Indenture Trustee, Pass Through Trustee and Subordination Agent.
Pursuant to the Participation Agreement, one McDonnell Douglas MD-11F aircraft
bearing U.S. Registration No. N1752K (the "Aircraft") is being financed. This
opinion is furnished pursuant to Section 4.01(k)(iv) of the Participation
Agreement. Capitalized terms used herein and not otherwise defined are used
as defined in the Participation Agreement, except that references herein to
any instrument shall mean such instrument as in effect on the date hereof.
We have examined executed counterparts or copies otherwise
identified to our satisfaction of the following documents:
(a) The Pass Through Trust Agreement;
(b) The Series Supplements;
(c) The Pass Through Certificates;
(d) The Participation Agreement;
(e) The Intercreditor Agreement; and
(f) Each Liquidity Facility.
(each of the documents identified in paragraphs (a) through (e) are being
collectively referred to as the "Pass Through Trustee Documents" and each of
the documents identified in paragraphs (d) through (f) are being collectively
referred to as the "Subordination Agent Documents").
We have also examined originals or copies of such other
documents, such corporate records, certificates and other statements of
governmental officials and corporate officers and other representatives of the
corporations or entities referred to herein and such other instruments as we
have deemed necessary or appropriate for the purposes of this opinion.
Moreover, as to certain facts material to the opinions expressed herein, we
have relied upon representations and warranties contained in the Pass Through
Trustee Documents or the Subordination Agent Documents, as the case may be.
Based upon the foregoing and upon an examination of such
questions of law as we have considered necessary or appropriate, and subject
to the assumptions, exceptions and qualifications set forth below, we advise
you that, in our opinion:
With respect to the opinions set forth in paragraph 8 above,
with your permission we have relied upon, and this opinion is limited by, the
assumptions set forth in the discussion entitled "Certain Utah Taxes" in the
Prospectus Supplement to the Prospectus forming part of Registration Number
No. 333-07691 (the "Registration Statement") for the registration of the Pass
Through Certificates with the Securities and Exchange Commission. We express
no opinion as to the correctness of the foregoing assumptions and we have
conducted no independent investigation in this regard.
1. First Security is a national banking association duly
organized and validly existing under the laws of the United States of
America holding a valid certificate to do business as a national
banking association, with banking and trust powers.
2. Each of First Security, the Pass Through Trustee and the
Subordination Agent, as the case may be, has or had, on the date of
execution thereof, full corporate power, authority and legal right to
execute, deliver and perform each of the Pass Through Trustee
Documents and the Subordination Agent Documents, as the case may be,
and to authenticate the Pass Through Certificates delivered on the
Certificate Closing Date.
3. Each of First Security, the Pass Through Trustee and the
Subordination Agent has duly authorized, executed and delivered each
Pass Through Trustee Document or Subordination Agent Document, as the
case may be; each such document constitutes a legal, valid and
binding obligation of the Pass Through Trustee or the Subordination
Agent, as the case may be (and, to the extent set forth in the
respective Pass Through Trustee Document or Subordination Agent
Document, of First Security) enforceable against the Pass Through
Trustee or the Subordination Agent, as the case may be (and, to the
extent set forth in the respective Pass Through Trustee Document or
Subordination Agent Document, against First Security) in accordance
with its terms.
4. The Pass Through Certificates issued and dated the
Certificate Closing Date have been duly authorized and validly
executed, issued, delivered and authenticated by the Pass Through
Trustee pursuant to the Pass Through Trust Agreement and the Series
Supplements; and the Pass Through Certificates acquired by the
Underwriters under the Underwriting Agreement are enforceable against
the Pass Through Trustee and are entitled to the benefits of the
related Pass Through Trust Agreement and the related Series
Supplements.
5. No order, license, consent, permit, authorization or
approval of or exemption by, and no notice to or filing with, or the
taking of any other action in respect of, any Utah or Federal
governmental authority governing the banking or trust powers of First
Security, the Pass Through Trustee or the Subordination Agent, and no
filing, recording, publication or registration in any public office
is required under Utah or Federal law pertaining to its banking or
trust powers for the due execution, delivery or performance by First
Security, individually or as Pass Through Trustee or Subordination
Agent, as the case may be, of the Pass Through Trustee Documents
(other than the Pass Through Trust Agreement) or the Subordination
Agent Documents, as the case may be, and of the certificate of
authentication, as Pass Through Trustee, on the Pass Through
Certificates, or for the legality, validity, binding effect or
enforceability thereof against First Security, the Pass Through
Trustee or the Subordination Agent, as the case may be.
6. The execution, delivery and performance by the Pass Through
Trustee or First Security, as the case may be, of each of the Pass
Through Documents and the Subordination Agent or First Security, as
the case may be, of each of the Subordination Agent Documents, and the
issuance, execution, delivery and performance of the Pass Through
Certificates by the Pass Through Trustee are not or were not, on the
date of execution thereof, in violation of the charter or by-laws of
First Security or of any law, governmental rule, or regulation of the
State of Utah or the United States of America governing the banking
or trust powers of First Security or, to our knowledge, of any
indenture, mortgage, bank credit agreement, note or bond purchase
agreement, long-term lease, license or other agreement or instrument
to which it is a party or by which it is bound or, to our knowledge,
of any judgment or order of the State of Utah or the United States of
America relating to the banking or trust powers of First Security.
7. There are no actions, suits, investigations or proceedings
pending or, to our knowledge, threatened against or affecting First
Security, the Pass Through Trustee or the Subordination Agent or any
of its properties in any court or before any administrative agency or
arbitrator, which, if adversely determined, would materially adversely
affect the ability of First Security, the Pass Through Trustee or the
Subordination Agent, as the case may be, to perform its obligations
under any of the Pass Through Trustee Documents or the Subordination
Agent Documents, as the case may be, and there are no pending or, to
our knowledge, threatened actions or proceedings before any court,
administrative agency or tribunal involving First Security, the Pass
Through Trustee or the Subordination Agent in connection with the
transactions contemplated by any of the Pass Through Trustee
Documents or the Subordination Agent Documents, as the case may be.
8. Neither the trusts created by the Pass Through Trust
Agreement and the Series Supplements nor the Pass Through Trustee, in
its individual or trust capacity, as the case may be, nor their
respective Affiliates, successors or assigns, will be subject to any
tax (including, without limitation, net or gross income, tangible or
intangible property, net worth, capital, franchise or doing business
tax), fee or other governmental charge under the laws of the State of
Utah or any political subdivision thereof (other than taxes imposed
on the fees received by State Street Bank and Trust Company for
acting as Pass Through Trustee under the Series Supplements).
Certificate holders who are not residents of or otherwise subject to
tax in Utah will not be subject to any tax (including, without
limitation, net or gross income, tangible or intangible property, net
worth, capital, franchise or doing business tax), fee or other
governmental charge under the laws of the State of Utah or any
political subdivision thereof as a result of purchasing, owning
(including receiving payments with respect to) or selling a Pass
Through Certificate. There are no applicable taxes under the laws of
the State of Utah or any political subdivision thereof upon or with
respect to (a) the construction, mortgaging, financing, refinancing,
purchase, acquisition, acceptance, rejection, delivery, nondelivery,
transport, location, ownership, insurance, control, assembly,
possession, repossession, operation, use, condition, maintenance,
repair, sale, return, abandonment, replacement, preparation,
installation, storage, redelivery, manufacture, leasing, subleasing,
modification, rebuilding, importation, transfer of title, transfer
of registration, exportation or other application or disposition of
the Aircraft or any interest in any thereof, (b) payments of Rent or
other receipts, income or earnings arising therefrom or received with
respect to the Aircraft or any interest in any thereof or payable
pursuant to the Lease, (c) any amount paid or payable pursuant to any
Operative Agreements, (d) the Aircraft or any interest therein or the
applicability of the Lease to the Aircraft or any interest in any
thereof, (e) any or all of the Operative Agreements, any or all of
the Pass Through Certificates or any interest in any or all thereof
or the offering, registration, reregistration, issuance, acquisition,
modification, assumption, reissuance, refinancing or refunding of any
or all thereof, and any other documents contemplated thereby and
amendments or supplements hereto and thereto, (f) the payment of the
principal of, or interest or premium on, or other amounts payable
with respect to, any or all of the Pass Through Certificates, whether
as originally issued or pursuant to any refinancing, refunding,
assumption, modification or reissuance, or any other obligation
evidencing any loan in replacement of the loan evidenced by any or
all of the Pass Through Certificates, or (g) otherwise with respect
to or in connection with the transactions contemplated by the Pass
Through Trust Agreement, the Series Supplements, the Pass Through
Certificates and the Operative Agreements, which would not have been
imposed if the Pass Through Trustee had not had its principal place
of business in, had not performed (either in its individual capacity
or as Pass Through Trustee) any or all of its administrative duties
under the Pass Through Trust Agreement, the Series Supplements, the
Pass Through Certificates and the Operative Agreements in, and had not
engaged in any activities unrelated to the transactions contemplated
by the Pass Through Trust Agreement, the Series Supplements, the Pass
Through Certificates and the Operative Agreements in, the State of
Utah.
9. Each of the Certificates to be delivered to and registered
in the name of the Subordination Agent on the date hereof pursuant to
the Participation Agreement and the Intercreditor Agreement will be
held by the Subordination Agent in trust for the Pass Through Trustee
under the applicable Pass Through Trust Agreement.
Very truly yours,
Ray, Quinney & Nebeker
SCHEDULE A
----------
Lessee
Federal Express Corporation
2007 Corporate Avenue
Memphis, Tennessee 38132
Owner Trustee
State Street Bank and Trust Company
of Connecticut, National Association
Two International Place
4th Floor
Boston, Massachusetts 02110
Indenture Trustee, Pass Through Trustee & Subordination Agent
First Security Bank, National Association
79 South Main Street
Salt Lake City, Utah 84111
Underwriters
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
First Chicago Capital Markets, Inc.
Corporate Securities
One First National Plaza
Chicago, Illinois 60670
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
J.P. Morgan & Co.
60 Wall Street
New York, New York 10260
Liquidity Provider
Kredietbank N.V., New York Branch
125 West 55th Street
New York, New York 10019
EXHIBIT A(5)(a)
[Letterhead of Kredietbank N.V.]
[Certificate Closing Date]
To Each of the Parties named on Schedule A Hereto
Re: Federal Express Corporation 1997-1
Enhanced Pass Through Certificates
Ladies and Gentlemen:
I am the manager of the Legal Department of Kredietbank N.V.
("Kredietbank") and have advised Kredietbank and its New York Branch (the
"Branch") in connection with (i) the Irrevocable Revolving Credit Agreement
Class A Certificates, dated as of May 1, 1997 (the "Class A Liquidity
Agreement"), between the Branch and First Security Bank, National Association,
a national banking association, as Subordination Agent under the Intercreditor
Agreement, defined below, and as agent and trustee for the Federal Express
Corporation Pass Through Trust 1997-1-A, (ii) the Irrevocable Revolving Credit
Agreement Class B Certificates, dated as of May 1, 1997 (the "Class B Liquidity
Agreement"), between the Branch and First Security Bank, National Association,
a national banking association, as Subordination Agent under the Intercreditor
Agreement, defined below, and as agent and trustee for the Federal Express
Corporation Pass Through Trust 1997-1-B (the "Intercreditor Agreement" and,
together with the Liquidity Agreements, the "Liquidity Documents"), and (iii)
the Intercreditor Agreement, dated as of May 1, 1997 (the "Intercreditor
Agreement"), among the Branch, First Security Bank, National Association, as
Pass Through Trustee and as Subordination Agent (the Liquidity Agreements and
the Intercreditor Agreement are hereinafter collectively the "Liquidity
Documents").
Capitalized terms herein which are undefined have the meanings
assigned to them in the Liquidity Documents.
I am rendering this opinion in my capacity as manager of the
Legal Department and without being personally liable to any extent for the
opinions expressed herein.
In connection with the opinions hereinafter given, I have
examined a copy of each of the Liquidity Documents and such other certificates,
documents, agreements and instruments as I have deemed necessary as a basis
for the opinions expressed below.
In such examination, I have assumed the genuineness of all
signatures, the authenticity of all agreements, certificates, instruments and
documents submitted to me as originals, and the conformity to the originals of
all agreements, certificates, instruments and documents submitted to me as
copies. As to questions of fact material to the opinions expressed below, I
have, when relevant facts were not independently established by me, examined
and relied upon representations of officers of Kredietbank.
Based upon the foregoing examination and assumptions, and
subject to the qualifications set forth below, I am of the opinion that:
1. Kredietbank is duly organized and validly existing as a
Belgian public law banking institution under the law of Belgium and
has full power and authority (corporate and otherwise) to execute,
deliver and perform the Liquidity Documents.
2. [Tod Angus] or [Robert Snauffer], acting together with [Jean
Glasgow], if acting for and on behalf of the Branch, are duly
authorized by Kredietbank to execute and deliver the Liquidity
Documents for and on behalf of the Branch. Assuming each of the
Liquidity Documents has been duly executed and delivered for and on
behalf of the Branch by such persons, no further authorization by or
any corporate action of Kredietbank is required in connection with
the execution, delivery and performance thereof.
3. The governing-law clause, subjecting the Liquidity Documents
to New York law, is valid under Belgian law.
(i) Under Belgian law, New York law will be applied to an
agreement, such as the Liquidity Documents, which under Belgian
law has been validly subjected to New York laws.
(ii) (a) None of the terms of the Liquidity Documents is
irreconcilable with important principles of Belgian law, and (b)
there are no mandatory provisions of Belgian law which must be
applied to the transactions covered by the Liquidity Documents.
(iii) Each of the Liquidity Documents constitutes the legal,
valid and binding obligation of Kredietbank, enforceable against
Kredietbank in accordance with its terms, the rules of civil
procedures of Belgium and the applicable provisions of the
chosen law of New York.
4. No authorization, consent, approval or other action by, and
no notice to or filing with, any governmental, administrative or other
authority or court of Belgium is required for the execution or
delivery of the Liquidity Documents by Kredietbank through the Branch
or for the performance by Kredietbank or by the Branch of the
Liquidity Documents.
5. The execution, delivery and performance of the Liquidity
Documents by Kredietbank or the Branch will not result in any
violation by Kredietbank or by the Branch of any law of Belgium.
6. The contractual obligations incurred by virtue of the
execution and delivery of the Liquidity Documents for and on behalf
of the Branch are the obligations of Kredietbank, and Kredietbank has
no defenses against the performance of such obligations which are
based on the fact that Kredietbank had acted through the Branch in
executing and delivering the Liquidity Documents.
7. If a final and conclusive judgment of the Supreme Court of
the State of New York, New York County, or of the Untied States
District Court for the Southern District of New York for a definite
sum for the recovery of amounts due and unpaid under the Liquidity
Documents were to be rendered against Kredietbank, a reexamination or
relitigation on the merits of the subject matter thereof in
accordance with Article 570 of the Belgian Judicial Code would be
necessary in order to obtain recognition and/or enforcement of such
judgment in Belgium.
8. The obligations of Kredietbank under the Liquidity Documents
rank at least equal in priority of payment and in all other respects
with its obligations to pay any other unsecured and unsubordinated
obligations of Kredietbank for borrowed money, including deposit
liabilities, that are not expressly preferred by law.
The foregoing opinions are subject to the following
qualifications:
(i) The opinion in paragraph (3) with respect to
enforceability is subject to the effect of any bankruptcy,
insolvency, reorganization, moratorium, liquidation or similar
laws affecting creditors' rights generally, applicable to
Kredietbank and to any law or general principle of law from
time to time in effect in Belgium that could be considered by
the Belgian Courts as a provision of public policy.
(ii) In giving the opinions in paragraphs (3)(iii), (6) and
(8), I have assumed, with your consent, that each of the
Liquidity Documents is legal, valid and binding under New York
law, all as set forth more fully in the opinion dated of even
date herewith of Milbank, Tweed, Hadley & McCloy issued in
connection with the Liquidity Documents.
(iii) No opinion is expressed with respect to the law of any
jurisdiction other than the law of Belgium.
This opinion is being furnished to you solely for your benefit
in connection with the transactions described above and may not be used,
circulated, quoted or otherwise referred to for any other purpose without my
express written consent.
Very truly yours,
SCHEDULE A
----------
Lessee
Federal Express Corporation
2007 Corporate Avenue
Memphis, Tennessee 38132
Indenture Trustee, Pass Through Trustee & Subordination Agent
First Security Bank, National Association
79 South Main Street
Salt Lake City, Utah 84111
Underwriters
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
First Chicago Capital Markets, Inc.
Corporate Securities
One First National Plaza
Chicago, Illinois 60670
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
J.P. Morgan & Co.
60 Wall Street
New York, New York 10260
EXHIBIT A(5)(b)
[Letterhead of Milbank, Tweed, Hadley & McCloy]
[Certificate Closing Date]
To Each of the Parties named on Schedule A Hereto
Re: Federal Express Corporation 1997-1
Enhanced Pass Through Certificates
Ladies and Gentlemen:
We have acted as special New York counsel to Kredietbank N.V.,
New York Branch (herein called the "Liquidity Provider") in connection with the
transactions contemplated by (i) the Irrevocable Revolving Credit Agreement
Class A Certificates, dated as of May 1, 1997 (the "Class A Liquidity
Agreement"), between the Liquidity Provider and First Security Bank, National
Association, as Subordination Agent under the Intercreditor Agreement, as
defined below, as agent and trustee for the Federal Express Corporation
1997-1-A Pass Through Trust, (ii) the Irrevocable Revolving Credit Agreement
Class B Certificates, dated as of May 1, 1997 (the "Class B Liquidity
Agreement" and, together with the Class A Liquidity Agreement, the "Liquidity
Agreements"), between the Liquidity Provider and First Security Bank, National
Association, as Subordination Agent under the Intercreditor Agreement, as
defined below, as agent and trustee for the Federal Express Corporation
1997-1-B Pass Through Trust, and (iii) the Intercreditor Agreement, dated as
of May 1, 1997 (the "Intercreditor Agreement" and, together with the Liquidity
Agreements, the "Liquidity Documents"), among the Liquidity Provider and First
Security Bank, National Association, as Pass Through Trustee and as
Subordination Agent. Capitalized terms used herein but not otherwise defined
herein shall have the meanings provided in the Liquidity Documents.
In rendering the opinion expressed below, we have examined the
Liquidity Documents, the opinion dated the date hereof of Wilfred Kupers, Esq.,
manager of the Legal Department of Kredietbank N.V., and such other documents
as we have deemed necessary.
In our examination, we have assumed the authenticity of all
documents submitted to us as originals and the conformity with authentic
original documents of all documents submitted to us as copies. When relevant
facts were not independently established, we have relied upon representations
made in or pursuant to the Liquidity Documents.
In rendering the opinion expressed below, we have assumed, with
respect to each Liquidity Document, that:
(i) it has been duly authorized by, has been duly executed and
delivered by, and (except to the extent set forth in the opinion
below as to the Liquidity Provider) constitutes legal, valid,
binding and enforceable obligations of all of the parties
thereto;
(ii) all signatories thereto have been duly authorized; and
(iii) all of the parties thereto are duly organized and validly
existing and have the power and authority (corporate,
partnership, trust or other) to execute, deliver and perform
thereunder.
Based upon and subject to the foregoing and subject also to the
comments and qualifications set forth below, and having considered such
questions of law as we have deemed necessary as a basis for the opinion
expressed below, we are of the opinion that each Liquidity Document
constitutes the legal, valid and binding obligation of the Liquidity Provider,
enforceable against the Liquidity Provider in accordance with its terms, except
as may be limited by bankruptcy, insolvency, reorganization, moratorium,
fraudulent conveyance or transfer or other similar laws relating to or
affecting the rights of creditors generally and except as the enforceability
of such Liquidity Document is subject to the application of general principles
of equity (regardless of whether considered in a proceeding in equity or at
law), including, without limitation, (a) the possible unavailability of
specific performance, injunctive relief or any other equitable remedy and (b)
concepts of materiality, reasonableness, good faith and fair dealing.
The foregoing opinion is subject to the following comments and
qualifications:
(A) The enforceability of provisions in the Liquidity
Documents to the effect that terms may not be waived or modified
except in writing may be limited under certain circumstances.
(B) We express no opinion as to (i) the effect of the laws of
any jurisdiction in which the Liquidity Provider is located (other
than New York) that limit the interest, fees or other charges the
Liquidity Provider may impose for the loan or use of money or other
credit, (ii) Section 7.11(a)(i) of each Liquidity Agreement and
Section 10.11(a)(i) of the Intercreditor Agreement, insofar as such
Sections relate to the subject matter jurisdiction of a Federal court
sitting in New York, New York to adjudicate any controversy related
to the Liquidity Documents, (iii) the waiver of inconvenient forum
set forth in Section 7.11(a)(ii) of each Liquidity Agreement and
Section 10.11(a)(ii) of the Intercreditor Agreement with respect to
proceedings in a Federal court sitting in New York, New York and a
State court of the State of New York and (iv) the waiver of immunity
set forth in Section 10.11(c) of the Intercreditor Agreement with
respect to proceedings in a Federal court sitting in New York, New
York and a State court of the State of New York.
The foregoing opinion is limited to matters involving the
Federal laws of the United States of America and the law of the State of New
York, and we do not express any opinion as to the laws of any other
jurisdiction. In particular, we do not express any opinion as to the laws of
Belgium and, to the extent such laws may be relevant to the opinion expressed
herein, we have, with your permission, relied upon the aforementioned opinion
of Wilfred Kupers, Esq., manager of the Legal Department of Kredietbank N.V.,
without independently considering the matters covered thereby, and our opinion
is subject to all limitations, exceptions and qualifications contained therein
as if set forth herein in full.
At the request of the Liquidity Provider, this opinion letter is
provided to you by us in our capacity as special New York counsel to the
Liquidity Provider, and this opinion letter may not be relied upon by any
Person for any purpose other than in connection with the transactions
contemplated by the Liquidity Documents without, in each instance, our prior
written consent.
Very truly yours,
SCHEDULE A
----------
Lessee
Federal Express Corporation
2007 Corporate Avenue
Memphis, Tennessee 38132
Indenture Trustee, Pass Through Trustee & Subordination Agent
First Security Bank, National Association
79 South Main Street
Salt Lake City, Utah 84111
Underwriters
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
First Chicago Capital Markets, Inc.
Corporate Securities
One First National Plaza
Chicago, Illinois 60670
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
J.P. Morgan & Co.
60 Wall Street
New York, New York 10260
Liquidity Provider
Kredietbank N.V., New York Branch
125 West 55th Street
New York, New York 10019
EXHIBIT A(6)
[Letter of General Electric Company]
[Delivery Date]
To Each of the Parties named on Schedule A Hereto
Re: Federal Express Corporation Trust No. N583FE
Reference is made to (i) that certain Participation Agreement (Federal
Express Corporation Trust No. N583FE), dated as of May 1, 1997 (the
"Participation Agreement") by and among Federal Express Corporation, as Lessee
("Fed Ex"), ____________________, as Owner Participant, State Street Bank and
Trust Company of Connecticut, National Association ("SSB") (not in its
individual capacity, except as otherwise expressly set forth therein, but
solely as Owner Trustee), First Security Bank, National Association ("FSB")
(not in its individual capacity, except as otherwise expressly set forth
therein, but solely as Indenture Trustee, Pass Through Trustee and
Subordination Agent); (ii) that certain Lease Agreement (Federal Express
Corporation Trust No. N583FE), dated as of May 1, 1997 (the "Lease") between
SSB (not in its individual capacity, but solely as Owner Trustee), as Lessor
and Fed Ex, as Lessee; (iii) that certain Trust Indenture and Security
Agreement (Federal Express Corporation Trust No. N583FE), dated as of May 1,
1997 (the "Trust Indenture") between SSB (not in its individual capacity), as
Owner Trustee and FSB (not in its individual capacity), as Indenture Trustee;
and (iv) that certain Trust Agreement (Federal Express Corporation Trust No.
N583FE), dated as of May 1, 1997 (the "Trust Agreement") between SSB (not in
its individual capacity), as Owner Trustee and Federal Express Corporation, as
Trustor.
I am an attorney employed by General Electric Company, a New York
corporation (the "Engine Manufacturer") and as such have acted as counsel for
the Engine Manufacturer in connection with the execution and delivery by the
Engine Manufacturer of the Consent (the "Consent"), and the Engine Warranty
Assignment (Federal Express Corporation Trust No. N583FE) (the "Engine
Warranty Assignment"), each attached to the Participation Agreement as Exhibit
E and dated as of May 1, 1997. The Consent and the Engine Warranty Assignment
covers three GE CF6-80C2-D1F series engines bearing Engine Manufacturer's
serial numbers ___-___ and ___-___, respectively. In this connection, I have,
or an attorney under my supervision has, reviewed such documents as I have
deemed necessary for the purpose of this opinion, including, but without
limiting the generality of the foregoing, the General Terms Agreement No.
6-9034, dated as of July 3, 1991 between the Engine Manufacturer and Fed Ex
(the "General Terms Agreement"), the Engine Product Support Plan forming a
part thereof (the "Engine Product Support Plan"), the Participation Agreement,
the Purchase Agreement Assignment, the Lease, the Trust Indenture and the
Trust Agreement.
In making such examinations, I have relied upon the accuracy of
original, certified, conformed, photocopied or telecopied copies of such
records, agreements, certificates and other documents as I have deemed
necessary or appropriate to enable me to render the opinions expressed herein.
In all such examinations, I have assumed the genuineness of signatures on
original documents and the conformity to such original documents of all copies
submitted to me as certified, conformed, photocopied or telecopied copies, and
as to certificates and telegraphic and telephonic confirmations given by public
officials, I have assumed the same to have been properly given and to be
accurate. As to various questions of fact material to such opinions, I have
relied, when such relevant facts were not independently established by me,
solely upon the accuracy of the statements, representations and warranties
made in the Participation Agreement, the Purchase Agreement Assignment, the
Lease, the Trust Indenture and the Trust Agreement.
With your consent, and for the purposes of this opinion, I have
assumed (other than with respect to the Engine Manufacturer), the accuracy of
the following matters, but I have not made any independent investigation or
inquiry with respect thereto and I render no opinion on such matters:
(a) each of the Participation Agreement, the Lease, the Trust
Indenture, and the Trust Agreement have been duly and validly
authorized, executed and delivered by all parties thereto and
constitutes the legal, valid and binding obligations of each of such
parties in accordance with the respective terms thereof; and
(b) the respective parties to the Participation Agreement, the
Lease, the Trust Indenture, and the Trust Agreement have obtained, and
there are in full force and effect, any and all federal, state, local
or foreign governmental agencies and authorities in connection with
the transactions contemplated thereby, to the extent necessary for the
legality, validity and binding effect or enforceability of the
Consent and the Engine Warranty Assignment.
Based upon the foregoing, and subject to the specific assumptions,
qualifications and reliances herein set forth, and on the basis of my
consideration of such facts and law as I have deemed necessary for purposes of
this letter, it is my opinion that:
(1) The Engine Manufacturer has the full corporate power,
authority and the legal right to enter into and perform its
obligations under the General Terms Agreement, the Consent and the
Engine Warranty Assignment. The execution, delivery and performance
by the Engine Manufacturer of each of the General Terms Agreement, the
Consent and the Engine Warranty Assignment was duly authorized by all
necessary corporate action on the part of the Engine Manufacturer.
(2) Each of the General Terms Agreement, the Consent and
Engine Warranty Assignment has been duly authorized, executed and
delivered by and constitutes a legal, valid and binding obligation of
the Engine Manufacturer, enforceable against the Engine Manufacturer
in accordance with the respective terms thereof, except as the
enforceability thereof may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting the
rights of creditors generally and by general equity principles.
(3) The Engine Product Support Plan insofar as it relates to
the Engine Warranties (as such term is defined in the Engine Warranty
Assignment), constitutes a legal, valid and binding obligation of the
Engine Manufacturer, enforceable against the Engine Manufacturer in
accordance with the terms thereof, except as the enforceability
thereof may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the rights of
creditors generally and by general equity principles.
The foregoing opinions are limited to the laws of the State of
New York and the federal laws of the United States of America, but no opinion
is expressed as to matters governed by the Transportation Code, or by any other
law, statute, rule or regulation of the United States relating to the
acquisition, ownership, registration, use, operation, maintenance, repair,
replacement or sale of aircraft. Further, no opinion is expressed as to title
to any engines or other property.
This opinion is furnished by me at your request for your sole
benefit and no other person or entity shall be entitled to rely on this opinion
without our express written consent. My opinion is limited to the matters
stated herein and no opinion is implied or may be inferred beyond the matters
expressly stated herein.
Very truly yours,
David L. Lloyd, Jr.
SCHEDULE A
----------
Lessee
Federal Express Corporation
2007 Corporate Avenue
Memphis, Tennessee 38132
Owner Trustee
State Street Bank and Trust Company
of Connecticut, National Association
Two International Place
4th Floor
Boston, Massachusetts 02110
Indenture Trustee, Pass Through Trustee & Subordination Agent
First Security Bank, National Association
79 South Main Street
Salt Lake City, Utah 84111
Underwriters
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
First Chicago Capital Markets, Inc.
Corporate Securities
One First National Plaza
Chicago, Illinois 60670
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
J.P. Morgan & Co.
60 Wall Street
New York, New York 10260
Liquidity Provider
Kredietbank N.V., New York Branch
125 West 55th Street
New York, New York 10019
Owner Participant
EXHIBIT A(7)
[Letterhead of Daugherty, Fowler & Peregrin]
[Delivery Date]
To the Parties Named on Schedule A attached hereto
Re: Federal Express Corporation Trust No. N583FE
Ladies and Gentlemen:
This opinion is furnished to you pursuant to Section
4.02(d)(iii) of the Participation Agreement (Federal Express Corporation Trust
No. N583FE), dated as of May 1, 1997 (the "Participation Agreement") among
Federal Express Corporation, as Lessee (the "Lessee"), _________________, as
Owner Participant (the "Owner Participant"), State Street Bank and Trust
Company of Connecticut, National Association, not in its individual capacity,
except as otherwise stated, but solely as Owner Trustee ("Owner Trustee"),
First Security Bank, National Association, not in its individual capacity,
except as otherwise stated, but solely as Indenture Trustee ("Indenture
Trustee"), Pass Through Trustee and Subordination Agent, with respect to that
portion of Subtitle VII of Title 49 of the United States Code relative to the
recordation of instruments and the registration of aircraft thereunder.
The capitalized terms herein shall, unless otherwise defined,
have the same meanings given them in the Participation Agreement or in Annex I
attached hereto.
We have examined and filed on this date with the Federal
Aviation Administration (the "FAA") the following described instruments at the
respective times listed below:
(a) AC Form 8050-2 Aircraft Bill of Sale dated _____________
(the "FAA Bill of Sale") from the Lessee, as seller,
conveying title to the Airframe to the Owner Trustee,
which FAA Bill of Sale was filed at ____ _.m., C._.T.;
(b) AC Form 8050-1 Aircraft Registration Application dated
_____________ (the "Aircraft Registration Application") by
the Owner Trustee, as applicant, covering the Airframe,
which Aircraft Registration Application was filed at ____
_.m., C._.T.;
(c) Affidavit of the Owner Trustee dated _____________ (the
"Owner Trustee Affidavit") pursuant to Section
47.7(c)(2)(ii) of Part 47 of the Federal Aviation
Regulations together with Affidavit of the Owner
Participant dated _____________ (the "Owner Participant
Affidavit") attached thereto, which Owner Trustee
Affidavit with the Owner Participant Affidavit attached
was filed at ____ _.m., C._.T.;
(d) executed counterpart of Trust Agreement (Federal Express
Corporation Trust No. N583FE) dated as of May 1, 1997
(the "Trust Agreement") between the Owner Participant and
the Owner Trustee, which Trust Agreement was filed at
____ _.m., C._.T.;
(e) executed counterpart of Trust Indenture and Security
Agreement (Federal Express Corporation Trust No. N583FE)
dated as of May 1, 1997 (the "Trust Indenture") between
the Owner Trustee and the Indenture Trustee, with
executed counterpart of Indenture and Security Agreement
Supplement No. 1 (Federal Express Corporation Trust No.
N583FE) dated _____________ (the "Trust Indenture
Supplement") by the Owner Trustee, covering the Aircraft,
attached thereto, which Trust Indenture with the Trust
Indenture Supplement attached was filed at ____ _.m.,
C._.T.; and,
(f) executed counterpart of Lease Agreement (Federal Express
Corporation Trust No. N583FE) dated as of May 1, 1997
(the "Lease") between the Owner Trustee, as lessor, and
the Lessee, with executed counterparts of the following
attached thereto: (i) Lease Supplement No. 1 (Federal
Express Corporation Trust No. N583FE) dated _____________
(the "Lease Supplement") between the Owner Trustee, as
lessor, and the Lessee, covering the Aircraft; (ii) the
Trust Indenture; and (iii) the Trust Indenture
Supplement, which Lease with the foregoing attachments
(collectively, the "Lease Attachments") attached was
filed at ____ _.m., C._.T.
The Confidential Omissions were intentionally omitted from the
FAA filing counterparts of the Lease and the Trust Indenture as containing
confidential financial information.
Based upon our examination of the above described instruments
and of such records of the FAA as we deemed necessary to render this opinion,
it is our opinion that:
1. the FAA Bill of Sale, the Trust Indenture with the Trust
Indenture Supplement attached and the Lease with the
Lease Attachments attached are in due form for recordation
by and have been duly filed for recordation with the FAA
pursuant to and in accordance with the provisions of 49
U.S.C. Section 44107;
2. the Aircraft Registration Application, the Owner Trustee
Affidavit with the Owner Participant Affidavit attached
and the Trust Agreement are in due form for filing and
have been duly filed with the FAA pursuant to and in
accordance with the provisions of 49 U.S.C. Section
44103(a) and Section 47.7(c) of the Federal Aviation
Regulations;
3. the Airframe is eligible for registration under 49 U.S.C.
Section 44102 in the name of the Owner Trustee and the
filing with the FAA of the FAA Bill of Sale, the Aircraft
Registration Application, the Owner Trustee Affidavit with
the Owner Participant Affidavit attached and the Trust
Agreement will cause the FAA to register the Airframe, in
due course, in the name of the Owner Trustee and to issue
to the Owner Trustee an AC Form 8050-3 Certificate of
Aircraft Registration for the Airframe, and the Airframe
will be duly registered pursuant to and in accordance
with the provisions of 49 U.S.C. Section 44103(a);
4. the Owner Trustee has valid legal title to the Airframe
and the Aircraft is free and clear of all Liens, except
(i) the security interest created by the Trust Indenture,
as supplemented by the Trust Indenture Supplement, and
(ii) the rights of the parties under the Lease, as
supplemented by the Lease Supplement;
5. the rights of the Owner Trustee and the Lessee under the
Lease, as supplemented by the Lease Supplement, with
respect to the Aircraft, are perfected;
6. the Trust Indenture, as supplemented by the Trust
Indenture Supplement, constitutes a duly perfected first
priority security interest in the Aircraft and a duly
perfected first assignment of all the right, title and
interest of the Owner Trustee in, to and under the Lease
and the Lease Supplement (insofar as such assignment
affects an interest covered by the recording system
established by the FAA pursuant to 49 U.S.C. Section
44107), and no other registration of the Airframe or
filings other than filings with the FAA (which have been
duly effected) are necessary in order to perfect in any
applicable jurisdiction in the United States (A) the
Owner Trustee's title to the Airframe or (B) such
security interest and assignment (insofar as such
assignment affects an interest covered by the recording
system established by the FAA pursuant to 49 U.S.C.
Section 44107), it being understood that no opinion is
herein expressed as to the validity, priority or
enforceability of such security interest and assignment
under local law or as to the recognition of the
perfection of such security interest and assignment as
against third parties in any legal proceeding outside the
United States;
7. no authorization, approval, consent, license or order of,
or registration with, or the giving of notice to, the FAA
is required for the valid authorization, delivery and
performance of the Lease, as supplemented by the Lease
Supplement, the Trust Indenture, as supplemented by the
Trust Indenture Supplement, or the Trust Agreement except
for such filings as are referred to above; and,
8. neither the execution and delivery by the Owner
Participant of the Participation Agreement or the Trust
Agreement, nor other consummation of the transactions
contemplated thereby by the Owner Participant, requires
the consent or approval of, or the giving of notice to,
or the registration of, or the taking of any other action
in respect of the FAA, except (x) the registration of the
Airframe, including the submission of the Aircraft
Registration Application, the Owner Trustee Affidavit,
the Owner Participant Affidavit and the Trust Agreement
to the FAA and (y) the filings for recordation specified
elsewhere in this opinion.
No opinion is expressed as to the Airframe during any period or
periods of time during which it has not been subject to United States
registration.
No opinion is expressed as to laws other than Federal laws of
the United States. In rendering this opinion, we were subject to the accuracy
of the FAA, its employees and agents, in the filing, indexing and recording of
instruments filed with the FAA and in the search for encumbrance
cross-reference index cards for the Engines. Further, in rendering this
opinion we are assuming the validity and enforceability of the above described
instruments under local law. Since our examination was limited to records
maintained by the FAA, our opinion does not cover liens which are perfected
without the filing of notice thereof with the FAA, such as federal tax liens,
liens arising under Section 1368(a) of Title 29 of the United States Code,
possessory artisan's liens, or matters of which the parties had actual notice.
In rendering this opinion we are assuming that there are no documents with
respect to the Aircraft which have been filed for recording under the
recording system of the FAA but have not yet been listed in the available
records of such system as having been so filed.
In rendering this opinion we have relied upon the opinion of the
Assistant Chief Counsel of the Aeronautical Center dated _____________, a copy
of which is attached hereto.
Very truly yours,
Robert M. Peregrin
For the Firm
Annex I
Certain Definitions
-------------------
Airframe, Engines and Aircraft
------------------------------
One (1) McDonnell Douglas MD-11F aircraft bearing
manufacturer's serial number 48421 and U.S. Registration No. 1752K (the
"Airframe") and three (3) General Electric CF6-80C2-D1F aircraft engines
bearing manufacturer's serial numbers ___-___, ___=___ and ___-___ (the
"Engines") (the Airframe and the Engines are referred to collectively as the
"Aircraft").
Confidential Omissions
----------------------
The Lease was filed with the FAA, with (i) the Basic Rent
(Schedule II), (ii) the Stipulated Loss Values (Schedule III), (iii) the
Termination Values (Schedule IV) and (iv) the Purchase Option Schedule
(Schedule V) omitted from the FAA filing counterpart thereof as containing
confidential financial information; and (v) the purchase price under Section
4.02(a)(F) set forth in Ancillary Agreement II, which was not attached to the
FAA filing counterpart of the Lease or otherwise filed with the FAA for
recordation.
SCHEDULE A
----------
Lessee
Federal Express Corporation
2007 Corporate Avenue
Memphis, Tennessee 38132
Owner Trustee
State Street Bank and Trust Company
of Connecticut, National Association
Two International Place
4th Floor
Boston, Massachusetts 02110
Indenture Trustee, Pass Through Trustee & Subordination Agent
First Security Bank, National Association
79 South Main Street
Salt Lake City, Utah 84111
Underwriters
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
First Chicago Capital Markets, Inc.
Corporate Securities
One First National Plaza
Chicago, Illinois 60670
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
J.P. Morgan & Co.
60 Wall Street
New York, New York 10260
Liquidity Provider
Kredietbank N.V., New York Branch
125 West 55th Street
New York, New York 10019
Owner Participant
EXHIBIT B
[FORM OF LEASE AGREEMENT]
[See Exhibit 4.e]
EXHIBIT C
[FORM OF INDENTURE]
[See Exhibit 4.b.1]
EXHIBIT D
[FORM OF TRUST AGREEMENT]
[See Exhibit 4.d]
EXHIBIT E
ENGINE WARRANTY ASSIGNMENT
(FEDERAL EXPRESS CORPORATION TRUST NO. N583FE)
Words and phrases appearing in this Engine Warranty Assignment (the
"Assignment") shall have the respective meanings as defined below:
A. General Terms Agreement means that agreement dated as of July 3,
1991, (the "GTA") by and between the Engine Manufacturer and
Federal Express Corporation ("Fed Ex"), including the Engine
Product Support Plan at Exhibit B, insofar as such Product Support
Plan relates to the Engine Warranties (the "Product Support
Plan"), but excluding any and all letter agreements attached
thereto.
B. Engine Warranties means the Engine Manufacturer's New Engine
Warranty, New Parts Warranty, Ultimate Life Warranty and Campaign
Change Warranty, as set forth in the Engine Manufacturer's Product
Support Plan which forms a part of the GTA, and as limited by the
applicable terms of such GTA and Product Support Plan.
C. Engine means each of the CF6-80C2-D1F series engines installed on the
aircraft at the time of delivery to the Assignor, each bearing Engine
Manufacturer's serial numbers ___-___, ___-___ and ___-___,
respectively.
D. Replacement Engine means each of the CF6-80C2-D1F series engines
which are not subject to this Assignment and are a replacement or
substitute for an Engine, excluding, however, any engines obtained
from the Engine Manufacturer's lease pool which are installed on
the aircraft for the limited purpose of permitting the continued
operation of the aircraft during the period necessary to effect or
complete repairs or overhaul of an Engine.
E. Lease means the Lease Agreement (Federal Express Corporation Trust
No. N583FE), dated as of May 1, 1997, (the "Lease") between State
Street Bank and Trust Company of Connecticut, National Association
(not in its individual capacity, but solely as Owner Trustee), as
Lessor ("Lessor") and Fed Ex, as Lessee, as amended, modified or
supplemented from time to time.
All other capitalized terms used and not defined herein that are in the
Lease shall, when used herein, have the meanings specified in the Lease.
1
Fed Ex, pursuant to the terms and conditions herein, hereby sells, assigns,
transfers and sets over unto the Lessor all of its rights, claims and
interests in and under the GTA and the Product Support Plan, as such apply to
the Engines, to enforce in the Lessor's own name such rights as Fed Ex may
have with respect to the Engine Warranties, to the extent the same relate to
the Engines, and to retain any benefit resulting therefrom; provided, however,
that there is reserved to Fed Ex all of its other rights, claims and interests
under the GTA except as expressly stated above. Fed Ex shall, during the term
of the Lease (but only so long as no Event of Default shall have occurred and
be continuing), have the benefit of and shall be entitled to enforce (as it
shall deem appropriate), either in its own name or (at the cost of Fed Ex) in
the name of the Lessor for the use and benefit of Fed Ex, any and all Engine
Warranties available to the Lessor under the GTA in respect of the Engines and
each Part thereof, and the Lessor agrees (but only so long as no Event of
Default shall have occurred and be continuing) at Fed Ex's expense to do,
execute and deliver such further acts, deeds, matters or things as may be
reasonably requested by Fed Ex and necessary to enable Fed Ex to obtain
customary warranty services furnished for the Engines or any Part thereof
pursuant to the Engine Warranties. Fed Ex shall, at the Lessor's expense,
cooperate with the Lessor and take such action as the Lessor reasonably deems
necessary to enable the Lessor to enforce such rights, claims and interests as
assigned herein.
2
Notwithstanding anything in this Assignment or the Consent attached hereto
and incorporated herein to the contrary, Fed Ex and the Lessor confirm
expressly for the benefit of the Engine Manufacturer that:
A. The Lessor agrees that it will not, without the prior written consent
of the Engine Manufacturer, disclose, directly or indirectly, to any
third party, any of the terms of the Engine Warranties disclosed to
it by the Engine Manufacturer incident to effecting the assignment
herein; provided, however, that (1) the Lessor may use, retain and
disclose such information on a confidential basis to its special
counsel, independent insurance brokers, bank examiners or similar
regulatory authorities, auditors and public accountants, (2) the
Lessor may use, retain and disclose on a confidential basis such
information to the Owner Participant, the Indenture Trustee, the Pass
Through Trustee and any Certificate Holder, as the case may be, and
their special counsel, independent insurance brokers, bank examiners
or similar regulatory authorities, auditors and public accountants,
(3) the Lessor may disclose such information as required by
applicable laws, governmental regulations, subpoena, or other written
demand under color of legal right, but it shall first, as soon as
practicable upon receipt of such demand and to the extent permitted
by applicable laws, furnish a copy thereof to Fed Ex and to the
Engine Manufacturer, and the Lessor, to the extent permitted by
applicable law, shall afford Fed Ex and the Engine Manufacturer
reasonable opportunity, at the moving party's cost and expense, to
obtain a protective order or other assurance reasonably satisfactory
to the Engine Manufacturer of confidential treatment of the
information required to be disclosed, (4) the Lessor may disclose
such information as required to enforce its rights under the Engine
Warranties assigned to it pursuant to this Assignment, and (5) the
Lessor may disclose such information to any bona fide potential
purchaser of the Aircraft and/or Engines or any beneficial interest
therein (subject to the execution by such prospective purchaser of a
written confidentiality statement setting forth the same or
substantially similar terms as those referred to in this paragraph).
B. Without in any way releasing Fed Ex from any of its duties or
obligations under the GTA, the Lessor agrees that, insofar as the
provisions of the GTA relate to the Engines, in exercising any rights
under such Engine Warranties or in making any claim with respect
thereto, the applicable terms and conditions of the GTA, including
Article Eight (Limitation of Liability) and the Product Support Plan,
shall apply to, and be binding upon, the Lessor to the same extent as
Fed Ex.
C. Insofar as the provisions of the GTA relate to the Engines, in
exercising any rights under the Engine Warranties or in making any
claim with respect thereto, the applicable terms and conditions of
the GTA and the Product Support Plan or the Consent attached hereto
and incorporated herein shall apply to, and be binding upon, the
Lessor to the same extent as if named "Airline" therein. It is
expressly agreed that Fed Ex shall at all times remain liable to the
Engine Manufacturer under the GTA to perform all the duties and
obligations of Fed Ex thereunder to the same extent as if this
Assignment had not been executed. The performance by the Lessor of
any of the rights assigned hereunder shall not release Fed Ex from
any of its duties or obligations to the Engine Manufacturer under the
GTA except to the extent that such exercise by the Lessor shall
constitute performance of such duties and obligations.
D. Nothing contained in this Assignment shall subject the Engine
Manufacturer to any obligation or liability to which it would not
otherwise be subject under the GTA or modify in any respect the
Engine Manufacturer's contract rights thereunder, or subject the
Engine Manufacturer to any multiple or duplicative liability or
obligation under the GTA. The Engine Manufacturer recognizes and it
is consented to by all parties to this Assignment that the Lessor
shall collaterally assign its rights under the Lease and this
Assignment and will mortgage the Aircraft and Engines, to First
Security Bank, National Association, as Indenture Trustee under the
Trust Indenture, Mortgage and Security Agreement (Federal Express
Corporation Trust No. N583FE), dated as of May 1, 1997 (on the terms
set forth therein); however, no further extension or assignment
(except to a successor indenture trustee under such agreement) of any
remaining Engine Warranties, including but not limited to extensions
or assignments for security purposes, are permitted without the prior
written consent of the Engine Manufacturer.
E. Exclusive of the assignment noted in Section 2D above, the Engine
Manufacturer shall not be deemed to have knowledge of any change in
the authority of Fed Ex or the Lessor, as the case may be, to
exercise the rights established hereunder until the Engine
Manufacturer has received written notice thereof from the Indenture
Trustee or the Lessor. Such notice shall be sent to: Commercial
Contracts Director, GE Aircraft Engines, Mail Drop F17, One Neumann
Way, Box 156301, Cincinnati, Ohio 45215-6301, facsimile: (513)
243-8068.
F. This Assignment shall apply only in respect to each Engine and shall
not extend to any replacement or substitute engine. If, during the
term of this Assignment and the Lease, it becomes necessary to
replace or substitute an Engine due to a Failure (as such term is
defined in the Engine Product Support Plan, excluding normal wear,
tear and deterioration which can be restored by overhaul and repair),
damage or loss, the Assignor (or the Lessor) shall give the Engine
Manufacturer written notice of such Failure, damage or loss. The
notice shall include (i) a description of the event or circumstances
which constitute a Failure, damage or loss, and (ii) the serial
numbers of the (a) failed, damaged or lost Engine and (b) Replacement
Engine and shall be sent to: Customer Support Manager, GE Aircraft
Engines, 111 Merchant Street, Room 450, Cincinnati, Ohio 45246. The
Engine Manufacturer shall not be deemed to have knowledge of the need
for a replacement engine until it has received the aforementioned
notice.
In the event an Engine subject to this Assignment fails, is damaged
or lost, and such Engine is replaced by a Replacement Engine, the
Assignor and the Assignee shall, prior to, or contemporaneous with,
the delivery of such Replacement Engine, obtain the written consent
of the Engine Manufacturer (which it shall be obligated to give) that
the Engine Warranties as set forth in the Engine Product Support Plan
shall apply to such Replacement Engines. The Engine Manufacturer
shall not incur any obligation or liability for a Replacement Engine
under the Engine Warranties until the execution of the aforementioned
consent.
G. At any time and upon the written request of the Engine Manufacturer,
Fed Ex and the Lessor shall promptly and duly execute and deliver any
and all such further assurances, instruments and documents and take
all such further action, at the expense of Fed Ex, as the Engine
Manufacturer may reasonably request in order to obtain the full
benefit of Fed Ex and the Lessor's agreement as set forth in this
Assignment and the Consent attached hereto and incorporated herein.
Any performance by the Engine Manufacturer that discharges its
obligation under the Engine Warranties will satisfy the respective
interests of Fed Ex and the Lessor. So long as the Engine
Manufacturer acts in good faith in accordance with this Assignment,
the Engine Manufacturer may rely conclusively on any notice given
pursuant to this Assignment without inquiring as to the accuracy of,
or the entitlement of the party to give, such notice.
3
The Engine Manufacturer shall reserve to Fed Ex all those rights, claims
and interests, as and to the extent such relates to the purchase and
operation of engines other than the Engines subject to the Assignment, as
well as other matters not directly pertaining to the Engines, and Fed Ex
will have or retain under the GTA such rights, claims and interest not
expressly assigned to the Lessor hereunder.
4
The Engine Manufacturer warrants each new Reverser (as such is defined in
the Engine Product Support Plan) installed on the Aircraft at the time of
delivery to Fed Ex under the terms of the New Engine Warranty; however,
administration of such New Engine Warranty, with respect to both installed and
replacement Reversers, shall be performed by Martin Marietta.
5
If at some point in time, the Engine Manufacturer receives written
notification from the Indenture Trustee or the Lessor that the Lessor is or
becomes entitled to possession of the Engines, pursuant to an Event of Default
or otherwise, and desires to sell or lease the Engines to a party who is not
currently a party to a General Terms Agreement with the Engine Manufacturer,
the Engine Manufacturer agrees if such agreement is permissible under
applicable U.S. law, that it will offer to such purchaser or lessee, subject
to the execution of an agreement to sell or lease such Engines, a General
Terms Agreement on the Engine Manufacturer's standard terms and conditions.
If, however, such purchaser or lessee is currently a party to a General Terms
Agreement with the Engine Manufacturer, the remaining portion of the terms of
such General Terms Agreement shall be extended to and apply to such subsequent
purchase or lease; provided, however, that the written consent of the Engine
Manufacturer to such an extension is obtained prior to the transaction's
occurrence.
This Assignment shall be governed by the laws of the State of New York,
including all matters of construction, validity and performance, as applicable
to contracts between citizens of that state to be performed wholly within that
state, and without reference to conflicts of law principles.
In witness whereof, the parties hereto have caused this Engine Warranty
Assignment to be duly executed and delivered as of the date hereof.
General Electric Company
_____________________________
Name:
Title:
Federal Express Corporation
_____________________________
Name: Robert D. Henning
Title: Assistant Treasurer and
Managing Director -
Structured Finance
State Street Bank and Trust Company
of Connecticut, National Association
not in its individual capacity,
but solely as Owner Trustee
_____________________________
Name: Paul D. Allen
Title: Vice President
CONSENT
(FEDERAL EXPRESS CORPORATION TRUST NO. N583FE)
The Engine Manufacturer, General Electric Company (the "Engine
Manufacturer"), a New York corporation, hereby consents to the Engine Warranty
Assignment attached hereto and acknowledges notice of (i) the Lease Agreement
(Federal Express Corporation Trust No. N583FE), dated as of May 1, 1997 and
entered into by and between Fed Ex, as Lessee and State Street Bank and
Trust Company of Connecticut, National Association, as Lessor (as in
effect from time to time, the "Lease") and (ii) the Trust Indenture and
Security Agreement (Federal Express Corporation Trust No. N583FE), dated
as of May 1, 1997 (the "Indenture"), between the Lessor and First Security
Bank, National Association, as Indenture Trustee ("Indenture Trustee").
The Lease covers three GE CF6-80C2-D1F series engines bearing Engine
Manufacturer's serial numbers ___-___, ___-___ and ___-___, respectively,
(the "Engines") as installed on the McDonnell Douglas MD-11F series
aircraft bearing Manufacturer's serial number 48421 (the "Aircraft"). In
connection with such Lease, reference is made to the General Terms
Agreement No. 6-9034 dated as of July 3, 1991, between the Engine
Manufacturer and Fed Ex (the "General Terms Agreement"), under which the
Engine Manufacturer agreed to support certain GE CF6-80C2-D1F series
engines, including the Engines and spare parts therefor to be purchased by
Fed Ex from the Engine Manufacturer, as installed on certain McDonnell
Douglas MD-11F series aircraft, including the Aircraft. Recognizing that
the Lessor and Fed Ex have entered into the Lease which provides for the
lease by the Lessor to Fed Ex of the Aircraft and Engines and that the
Lessor has granted a security interest in the Engines and assigned certain
of its rights under the Lease to the Indenture Trustee, the Engine
Manufacturer agrees that in furtherance of the Lease, it will so support
such Engines and spare parts therefor, subject to the applicable terms and
conditions of the General Terms Agreement, including Article Eight
(Limitation of Liability).
The Engine Manufacturer represents and warrants that:
1. it is a corporation existing in good standing under the laws of
the State of New York;
2. the making and performance of this Consent in accordance with
its terms has been duly authorized by all necessary corporate
action on the part of the Engine Manufacturer, does not require
any shareholder approval and does not contravene its
certificate of incorporation or by-laws or any debenture,
credit agreement or other contractual agreement to which the
Engine Manufacturer is a party or by which it is bound or any
law binding on the Engine Manufacturer;
3. the making and performance of the Engine Warranties, as defined
in the Engine Warranty Assignment attached hereto (the "Engine
Warranties") in accordance with their terms have been duly
authorized by all necessary corporate action on the part of the
Engine Manufacturer, do not require any shareholder approval
and do not contravene the Engine Manufacturer's certificate of
incorporation or by-laws or any debenture, credit agreement or
other contractual agreement to which the Engine Manufacturer is
a party or by which it is bound or any law binding on the
Engine Manufacturer; and
4. the Engine Warranties constitute, as of the date on which they
were made and at all times thereafter, and this Consent and the
Engine Warranty Assignment attached hereto are, binding
obligations of the Engine Manufacturer enforceable against the
Engine Manufacturer in accordance with its terms subject to:
(a) the limitation of applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the rights
of creditors generally; and
(b) general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at
law).
This Consent shall be governed by the laws of the State of New York,
including all matters of construction, validity and performance, as applicable
to contracts between citizens of that state to be performed wholly within that
state, and without reference to conflicts of law principles.
General Electric Company
______________________________
Name:
Title:
PARTICIPATION AGREEMENT
(FEDERAL EXPRESS CORPORATION TRUST NO. N584FE)
Dated as of May 1, 1997
among
FEDERAL EXPRESS CORPORATION,
Lessee and Initial Owner Participant
STATE STREET BANK AND TRUST COMPANY OF CONNECTICUT,
NATIONAL ASSOCIATION,
Not in Its Individual Capacity
Except as Otherwise Expressly
Set Forth Herein, but Solely as Owner Trustee,
Owner Trustee
FIRST SECURITY BANK, NATIONAL ASSOCIATION,
Indenture Trustee
FIRST SECURITY BANK, NATIONAL ASSOCIATION,
Pass Through Trustee
and
FIRST SECURITY BANK, NATIONAL ASSOCIATION,
Subordination Agent
______________________________
LEVERAGED LEASE OF ONE MCDONNELL DOUGLAS MD-11F AIRCRAFT
SERIAL NO. 48436, REGISTRATION NO. N17685D
TABLE OF CONTENTS
Page
----
Initial Recitals........................................................... 1
ARTICLE 1
DEFINITIONS............................................................. 3
ARTICLE 2
ISSUANCE OF PASS THROUGH CERTIFICATES;
ISSUANCE AND PURCHASE OF CERTIFICATES
Section 2.01. Transfer of Funds........................................ 3
Section 2.02. (a) Certificates......................................... 4
(b) Transfer of Beneficial Interest..................................... 5
Section 2.03. Amendments on Delivery Date or Transfer Date............. 5
ARTICLE 3
PARTICIPATION IN INVESTMENT ON DELIVERY DATE;
DELIVERY OF AIRCRAFT
Section 3.01. Lessee's Notice of Delivery Date......................... 6
Section 3.02. Commitments to Participate in Purchase Price............. 7
Section 3.03. Postponement of Delivery Date............................ 9
Section 3.04. Closing.................................................. 10
ARTICLE 4
CONDITIONS PRECEDENT
Section 4.01. Conditions Precedent (Certificate Closing Date).......... 10
Section 4.02. Conditions Precedent (Delivery Date)..................... 17
Section 4.03. Opinion of Special Aviation Counsel Upon Registration.... 26
ARTICLE 5
CONDITIONS PRECEDENT TO LESSEE'S OBLIGATIONS
Section 5.01. Conditions Precedent to Lessee's Obligations............. 26
ARTICLE 6
LESSEE'S REPRESENTATIONS, WARRANTIES AND COVENANTS
Section 6.01. Lessee's Representations and Warranties.................. 27
Section 6.02. Offering by Lessee....................................... 33
Section 6.03. Certain Covenants of Lessee.............................. 33
Section 6.04. Survival of Representations and Warranties............... 41
ARTICLE 7
OTHER PARTIES' REPRESENTATIONS, WARRANTIES AND COVENANTS
Section 7.01. Acquisitions and Offerings of Interests in Lessor's
Estate................................................... 41
Section 7.02. Citizenship.............................................. 42
Section 7.03. Concerning Assignment of Interests of Owner Participant.. 42
Section 7.04. Representations, Covenants and Warranties of SSB and the
Owner Trustee............................................ 42
Section 7.05. Representations, Warranties and Covenants of the Indenture
Trustee.................................................. 45
Section 7.06. Indenture Trustee's Notice of Default.................... 46
Section 7.07. Releases from Indenture.................................. 46
Section 7.08. Covenant of Quiet Enjoyment.............................. 47
Section 7.09. Pass Through Trustee's Representations and Warranties.... 47
Section 7.10. Survival of Representations, Warranties and Covenants.... 48
Section 7.11. Lessee's Assumption of the Certificates.................. 48
Section 7.12. Indebtedness of Owner Trustee............................ 50
Section 7.13. Reserved................................................. 50
Section 7.14. Subordination Agent's Representations, Warranties and
Covenants................................................ 50
ARTICLE 8
TAXES
Section 8.01. Lessee's Obligation to Pay Taxes......................... 52
Section 8.02. After-Tax Basis.......................................... 57
Section 8.03. Time of Payment.......................................... 58
Section 8.04. Contests................................................. 58
Section 8.05. Refunds.................................................. 61
Section 8.06. Lessee's Reports......................................... 61
Section 8.07. Survival of Obligations.................................. 62
Section 8.08. Payment of Taxes......................................... 62
Section 8.09. Reimbursements by Indemnitees Generally.................. 62
ARTICLE 9
GENERAL INDEMNITY
Section 9.01. Generally................................................ 63
Section 9.02. After-Tax Basis.......................................... 66
Section 9.03. Subrogation.............................................. 67
Section 9.04. Notice and Payment....................................... 67
Section 9.05. Refunds.................................................. 67
Section 9.06. Defense of Claims........................................ 68
Section 9.07. Survival of Obligations.................................. 68
Section 9.08. Effect of Other Indemnities.............................. 69
ARTICLE 10
TRANSACTION COSTS
Section 10.01. Transaction Costs and Other Costs....................... 69
ARTICLE 11
SUCCESSOR OWNER TRUSTEE
Section 11.01. Appointment of Successor Owner Trustee.................. 72
ARTICLE 12
LIABILITIES AND INTERESTS OF THE OWNER PARTICIPANT AND HOLDERS
Section 12.01. Liabilities of Owner Participant........................ 73
Section 12.02. Interest of Holders of Certificates..................... 73
ARTICLE 13
OTHER DOCUMENTS
Section 13.01. Consent of Lessee to Other Documents.................... 73
Section 13.02. Further Assurances...................................... 74
Section 13.03. Pass Through Trustee's and Subordination Agent's
Acknowledgement......................................... 74
ARTICLE 14
NOTICES
Section 14.01. Notices................................................. 74
ARTICLE 15
REFINANCING/REOPTIMIZATION
Section 15.01. Refinancing............................................. 75
ARTICLE 17
MISCELLANEOUS
Section 17.01. Reserved................................................ 79
Section 17.02. Collateral Account...................................... 79
Section 17.03. Counterparts............................................ 80
Section 17.04. No Oral Modifications................................... 80
Section 17.05. Captions................................................ 80
Section 17.06. Successors and Assigns.................................. 80
Section 17.07. Concerning the Owner Trustee, the Indenture Trustee
and the Pass Through Trustee............................ 81
Section 17.08. Severability............................................ 81
Section 17.09. Public Release of Information........................... 81
Section 17.10. Certain Limitations on Reorganization................... 81
Section 17.11. GOVERNING LAW........................................... 82
Section 17.12. Section 1110 Compliance................................. 82
Section 17.13. Reliance of Liquidity Providers......................... 82
ARTICLE 18
CONFIDENTIALITY
Section 18.01. Confidentiality......................................... 83
SCHEDULE I Certificate Information
SCHEDULE II Definitions
SCHEDULE III Permitted Country List
SCHEDULE IV Debt Portion
SCHEDULE V Mandatory Document Terms
SCHEDULE VI Mandatory Economic Terms
EXHIBIT A(1)(a)(i) Opinion of Lessee's Counsel
(Certificate Closing Date)
EXHIBIT A(1)(a)(ii) Opinion of Lessee's Counsel
(Delivery Date)
EXHIBIT A(1)(b)(i) Opinion of Lessee's Special Counsel
(Certificate Closing Date)
EXHIBIT A(1)(b)(ii) Opinion of Lessee's Special Counsel
(Delivery Date)
EXHIBIT A(2) Opinion of Indenture Trustee's Special Counsel
EXHIBIT A(3)(a)(i) Opinion of Owner Trustee's Special Counsel
(Certificate Closing Date)
EXHIBIT A(3)(a)(ii) Opinion of Owner Trustee's Special Counsel
(Delivery Date)
EXHIBIT A(4) Opinion of Pass Through Trustee's and Subordination
Agent's Special Counsel
EXHIBIT A(5)(a) Opinion of Liquidity Provider's Counsel
EXHIBIT A(5)(b) Opinion of Liquidity Provider's Special Counsel
EXHIBIT A(6) Opinion of Engine Manufacturer's Counsel
EXHIBIT A(7) Opinion of Special Aviation Counsel
EXHIBIT B Form of Lease Agreement
EXHIBIT C Form of Indenture
EXHIBIT D Form of Trust Agreement
EXHIBIT E Form of Engine Warranty Assignment and Engine Consent
PARTICIPATION AGREEMENT
(FEDERAL EXPRESS CORPORATION TRUST NO. N584FE)
PARTICIPATION AGREEMENT (FEDERAL EXPRESS CORPORATION TRUST NO.
N584FE) dated as of May 1, 1997 (this "Agreement") among FEDERAL EXPRESS
CORPORATION, a Delaware corporation (herein, together with its successors and
permitted assigns, the "Lessee" and the "Initial Owner Participant"), STATE
STREET BANK AND TRUST COMPANY OF CONNECTICUT, NATIONAL ASSOCIATION, a national
banking association, not in its individual capacity, except as otherwise
expressly stated herein, but solely as owner trustee under the Trust Agreement
referred to below (in such capacity as trustee, together with its successors
and permitted assigns, the "Owner Trustee"), FIRST SECURITY BANK, NATIONAL
ASSOCIATION, a national banking association, not in its individual capacity,
except as otherwise expressly stated herein, but solely as indenture trustee
under the Indenture referred to below (in such capacity as trustee, together
with its successors and permitted assigns, the "Indenture Trustee"), FIRST
SECURITY BANK, NATIONAL ASSOCIATION, a national banking association, not in
its individual capacity, except as otherwise expressly stated herein, but
solely as pass through trustee of three separate Pass Through Trusts (in such
capacity as trustee, together with its successors and permitted assigns, the
"Pass Through Trustee"), and FIRST SECURITY BANK, NATIONAL ASSOCIATION, a
national banking association, not in its individual capacity, except as
otherwise expressly stated herein, but solely as subordination agent (in such
capacity as trustee, together with its successors and permitted assigns, the
"Subordination Agent").
W I T N E S S E T H :
WHEREAS, capitalized terms used herein shall have the respective
meanings set forth or referred to in Article 1 hereof.
WHEREAS, the Initial Owner Participant has entered into the Trust
Agreement with the Owner Trustee in its individual capacity, substantially in
the form of Exhibit D hereto, pursuant to which Trust Agreement the Owner
Trustee agrees, among other things, to hold the Lessor's Estate for the
benefit of the Initial Owner Participant on the terms specified in the Trust
Agreement, subject to the Lien of the Indenture.
WHEREAS, on the Pass Through Closing Date, a closing will occur
with respect to the public offering of Pass Through Certificates issued by
each Pass Through Trust, an allocable amount of the proceeds of which
offering will be used by the Pass Through Trustee to purchase for each such
Pass Through Trust the Certificates of the Series and Maturity applicable
thereto.
WHEREAS, on the Certificate Closing Date, the Owner Trustee and the
Indenture Trustee will enter into the Indenture for the benefit of the Pass
Through Trustee, pursuant to which the Owner Trustee is issuing the
Certificates to the Subordination Agent on behalf of the Pass Through Trustee
as evidence of the loans made by the Pass Through Trustee to Subordination
Agent on behalf of the Owner Trustee, the proceeds of which loans will be
deposited by the Indenture Trustee on behalf of the Owner Trustee in the
Collateral Account.
WHEREAS, concurrently with the execution and delivery hereof, (i)
Kredietbank N.V., acting through its New York Branch will enter into two
revolving credit agreements (each, a "Liquidity Facility"), one for the
benefit of the holders of Pass Through Certificates of each of the Pass
Through Trusts for the Series A Certificates and the Series B Certificates,
with the Subordination Agent, as agent for the Pass Through Trustee on behalf
of each such Pass Through Trust; and (ii) the Pass Through Trustee, each
Liquidity Provider and the Subordination Agent will enter into the
Intercreditor Agreement.
WHEREAS, the Certificates will be held by the Subordination Agent
pursuant to the Intercreditor Agreement on behalf of the Pass Through Trustee
for each of the Pass Through Trusts.
WHEREAS, prior to the Delivery Date, the Certificates will be secured
by the Liquid Collateral.
WHEREAS, pursuant to the terms of the Trust Agreement, the Owner
Trustee will be authorized and directed by the Initial Owner Participant:
(a) on the Delivery Date, to purchase the Aircraft from the Lessee;
(b) on the Certificate Closing Date, to execute and deliver the
Lease substantially in the form of Exhibit B hereto, pursuant to which,
subject to the terms and conditions set forth in said Lease, the Owner
Trustee agrees to lease to the Lessee, and the Lessee agrees to lease from
the Owner Trustee, the Aircraft on the Delivery Date, such lease to be
effected by the execution and delivery on the Delivery Date of a Lease
Supplement, in the form of Exhibit A to the Lease, covering the Aircraft
and incorporating by reference all of the terms of the Lease;
(c) on the Certificate Closing Date, to execute and deliver the
Indenture, substantially in the form of Exhibit C hereto, for the
benefit of the Holders from time to time of the Certificates, pursuant
to which the Owner Trustee agrees, among other things, (A) to deposit,
mortgage and pledge with the Indenture Trustee, as part of the Trust
Indenture Estate, all of the Lessor's Estate but not Excepted Payments,
(B) on the Certificate Closing Date, to issue Certificates substantially
in the form set forth in Exhibit B to the Indenture, the proceeds of the
sale of which will be held by the Indenture Trustee on behalf of the
Owner Trustee in the Collateral Account until released in accordance
with the terms hereof and of the Indenture, and (C) on the Delivery
Date, to execute and deliver the Indenture and Security Agreement
Supplement, substantially in the form of Exhibit A to the Indenture,
covering the Aircraft and supplementing the Indenture; and
(d) on the Certificate Closing Date, to execute and deliver the
Engine Warranty Assignment, whereby the Lessee assigns to the Owner Trustee
certain of the Lessee's rights and interests under the GTA to the extent
that the same relate to the Engines (except to the extent reserved in the
Engine Warranty Assignment), which Engine Warranty Assignment is to include
as an annex an Engine Consent executed by the Engine Manufacturer, said
Engine Warranty Assignment and Engine Consent to be substantially in the
form of Exhibit E hereto.
WHEREAS, on the Delivery Date pursuant to and subject to the terms
and conditions of this Agreement, the Engine Warranty Assignment and the
Bills of Sale, the Owner Trustee will purchase, and receive title to, the
Aircraft from the Lessee and lease the Aircraft to the Lessee pursuant to
the Lease.
NOW, THEREFORE, in consideration of the mutual covenants contained in
this Agreement and other good and valuable consideration, receipt of which is
hereby acknowledged, the parties hereto agree as follows:
ARTICLE 1
DEFINITIONS
Unless the context otherwise requires, the terms defined in Schedule
II hereto are incorporated herein for all purposes of this Agreement and shall
be equally applicable to both the singular and the plural forms of the terms
so defined.
ARTICLE 2
ISSUANCE OF PASS THROUGH CERTIFICATES;
ISSUANCE AND PURCHASE OF CERTIFICATES
Section 2.01. Transfer of Funds.
(a) On or before the Pass Through Closing Date, the Pass Through
Trustee and the Lessee, in accordance with the Pass Through Agreement, shall
enter into the Series Supplements, and, subject to the terms and conditions
set forth therein, on the Pass Through Closing Date (i) the Lessee shall
direct the Underwriters to execute a wire transfer or intra-bank transfer to
the Pass Through Trustee in the amount of the total proceeds payable pursuant
to the Underwriting Agreement with respect to the Pass Through Certificates
and (ii) the Pass Through Trustee shall deliver the Pass Through Certificates
to the Underwriters upon receipt by the Pass Through Trustee of such proceeds.
(b) Subject to the satisfaction or waiver of the conditions set
forth herein, on the Certificate Closing Date, on behalf of each Pass Through
Trust, from an allocable amount of the proceeds of the sale of the related
Pass Through Certificates, the Pass Through Trustee shall purchase the
Certificates specified for such Pass Through Trust on Schedule I hereto. For
each Pass Through Trust, the Pass Through Trustee shall pay an amount equal to
the principal amount of Certificates of the Series and Maturity that relates
to such Pass Through Trust, which amounts in the aggregate shall equal the
aggregate principal amount of the Certificates as specified in Section 2.04 of
the Indenture. The aggregate amount payable by the Pass Through Trustee
pursuant to this Section 2.01(b) shall be payable by wire transfer or
intra-bank transfer to the Indenture Trustee on behalf of the Owner Trustee.
(c) On the Certificate Closing Date, the Indenture Trustee shall,
on behalf of the Owner Trustee, deposit, by wire transfer or intra-bank
transfer, the amounts received by it pursuant to Section 2.01(b) hereof in the
Collateral Account pursuant to the Indenture.
(d) On the Certificate Closing Date concurrently with the events
specified in Section 2.01(b) hereof, the parties hereto shall execute and
deliver, to the extent they are parties thereto, and consent to the execution
and delivery of (if they are not parties thereto), the Lease (other than the
Lease Supplement), the Indenture (other than the Indenture and Security
Agreement Supplement), and the other documents listed in Section 4.01(d)
hereof, and the Owner Trustee shall execute and deliver to the Indenture
Trustee for authentication, and the Indenture Trustee shall authenticate and
deliver to the Subordination Agent on behalf of the Pass Through Trustee for
each of the Pass Through Trusts, upon the request of the Owner Trustee, the
Certificates as provided in Section 2.02 hereof.
(e) The Closings shall take place at the offices of Davis Polk &
Wardwell, 450 Lexington Avenue, New York, New York 10017.
Section 2.02. (a) Certificates. Subject to the satisfaction or
waiver of the conditions set forth herein, on the Certificate Closing Date,
the Initial Owner Participant will instruct the Owner Trustee to execute and
deliver to the Indenture Trustee, and the Indenture Trustee shall authenticate
and deliver, upon the request of the Owner Trustee, to the Subordination Agent
on behalf of the Pass Through Trustee for each of the Pass Through Trusts, the
Certificates specified for such Pass Through Trust on Schedule I attached
hereto, which (i) shall be issued in the principal amount and in the Series
and Maturity set forth for such Certificate in Schedule I hereto, (ii) shall
bear interest at the interest rate set forth for such Certificate in Schedule
I hereto, (iii) shall be issued in such form and on such terms as are
specified in the Indenture, (iv) shall be dated and authenticated on the
Certificate Closing Date and shall bear interest from the Certificate Closing
Date and (v) shall be registered in the name of the Subordination Agent on
behalf of the Pass Through Trustee for such Pass Through Trust.
(b) Transfer of Beneficial Interest. If on a date prior to the
Delivery Date, the Lessee shall have identified one or more Owner Participants
ready, willing and able to acquire the Beneficial Interest of the Initial
Owner Participant in consideration for such Owner Participant's or Owner
Participants' agreement to participate in the Lessor's payment of the Purchase
Price for the Aircraft on the Delivery Date, the Initial Owner Participant
shall transfer its Beneficial Interest to such Owner Participant or Owner
Participants on such date (the "Transfer Date"). On the Transfer Date, the
document amendments contemplated by Section 2.03(a) hereof (subject to the
limitations set forth in such Section) shall be effected and such amended
documents delivered.
Section 2.03. Amendments on Delivery Date or Transfer Date. (a)
Amendment and Restatement of Certain Documents. Upon any transfer by the
Initial Owner Participant of its Beneficial Interest on the Delivery Date (as
contemplated by Section 3.02(a) hereof (or, if earlier, the Transfer Date),
the parties hereto shall enter into amendments and restatements of the Trust
Agreement, the Lease, the Indenture and this Agreement, which amendments and
restatements shall reflect such changes as shall have been requested by the
Owner Participant, agreed to by the Lessee and, if modified in any material
respect, as to which Rating Agency Confirmation shall have been obtained from
each Rating Agency by the Lessee (to be delivered by the Lessee to the Pass
Through Trustee on or before the Delivery Date or the Transfer Date, as the
case may be); provided, however, that in any event such amended and restated
documents shall not vary the Mandatory Economic Terms and shall contain the
Mandatory Document Terms.
The Lessee agrees to furnish to each Liquidity Provider and to
Milbank, Tweed, Hadley & McCloy (the initial Liquidity Provider's special New
York counsel) at its New York office, attention: Drew S. Fine, as soon as
practicable but in no event less than 7 Business Days prior to the estimated
Delivery Date (or, if earlier, the estimated Transfer Date), true and complete
copies of drafts of any such amended and restated Participation Agreement,
amended and restated Lease Agreement and amended and restated Indenture. The
Lessee further agrees to furnish to each Liquidity Provider and to the counsel
identified in the preceding sentence (i) each and every subsequent draft of
such documents and (ii) promptly following the execution thereof, true and
complete copies of such documents.
(b) Amendments to Certain Schedules. The percentages of Basic Rent,
Stipulated Loss Value and Termination Value set forth on Schedules II, III and
IV, respectively, of the Lease, the EBO Price and the schedule of principal
payments on the Certificates set forth in Section 6.06 of the Indenture and
Schedule I to each Certificate on the Certificate Closing Date have been
calculated based upon a hypothetical owner's economic return and certain
assumptions regarding the Delivery Date, Transaction Costs, tax law, Basic
Term and certain other items (the "Assumptions"). If the Initial Owner
Participant transfers its Beneficial Interest to one or more Owner
Participants on the Delivery Date (as contemplated by Section 3.02(a) hereof
(or, if earlier, the Transfer Date), then, no later than 20 days following the
Delivery Date (the "Reoptimization Date"), the Owner Trustee may elect to amend
such Schedules to reflect the actual Owner's or Owners' Economic Return and any
changes to the Assumptions. In connection with any such amendments, the Owner
Trustee may prepay on the Reoptimization Date part of the Series C
Certificates. On the Reoptimization Date the Owner Trustee shall deliver and
the Subordination Agent on behalf of the Pass Through Trustee of each Pass
Through Trust shall accept delivery of an amended Schedule I to each
Certificate containing such changed principal installments.
The Owner Trustee will give not less than 10 days' notice of the
Reoptimization Date. Any amendments to the Indenture and such Schedules shall
not vary the Mandatory Economic Terms and on the Reoptimization Date the
Lessee shall deliver a certificate to the Pass Through Trustee and the
Liquidity Providers signed by the Vice President and Treasurer or any other
authorized officer of the Lessee certifying to such effect. If the
Reoptimization Date occurs later than the Delivery Date, the Lessee shall
cause any required filing and recording of the affected documents with the
Aeronautics Authority to be effected on the Reoptimization Date.
ARTICLE 3
PARTICIPATION IN INVESTMENT ON DELIVERY DATE;
DELIVERY OF AIRCRAFT
Section 3.01. Lessee's Notice of Delivery Date. The Lessee agrees
to give the Owner Participant, the Indenture Trustee, the Owner Trustee and
the Pass Through Trustee at least three (3) Business Days' written or
facsimile notice prior to the Delivery Date (which notice shall be effective
only if received not later than 10:00 a.m. (New York City time) on the date
that is at least three (3) Business Days prior to the Delivery Date), which
Delivery Notice shall specify the amount of the Purchase Price, the amount of
the Owner Participant's Commitment, the Debt Portion, the Delivery Date for
the Aircraft, the serial number of the Airframe and each Engine, and the
Aeronautics Authority registration number for the Aircraft.
Section 3.02. Commitments to Participate in Purchase Price. (a)
Participation in Purchase Price. Subject to the terms and conditions of this
Agreement, on the Delivery Date, (i) subject to the proviso to this Section
3.02(a), the Indenture Trustee agrees to release the Debt Portion or such
lesser amount as may then be held in the Collateral Account together with the
Lessee Shortfall (as defined in clause (iii) below), if any, to the Owner
Trustee for application to the Purchase Price as provided below, (ii) unless
previously transferred on the Transfer Date, the Initial Owner Participant
agrees to transfer its Beneficial Interest to the Owner Participant in
consideration for the Owner Participant's participation in the Lessor's
payment of the Purchase Price through an investment in the Lessor's Estate in
an amount equal to the amount set forth in Ancillary Agreement I, (iii)
subject to the proviso to this Section 3.02(a), the Lessee agrees to pay to
the Indenture Trustee the excess, if any, of (I) the Debt Portion over (II)
such amount as may then be held in the Collateral Account (the "Lessee
Shortfall") as provided in Section 17.02(a) hereof, and (iv) the Lessee shall
sell the Aircraft to the Owner Trustee and the Owner Trustee shall immediately
thereafter lease the Aircraft to the Lessee pursuant to the Lease. In
consideration for the assignment to the Owner Trustee by the Lessee under the
Modification Agreement of any warranties thereunder, the transfer by the
Initial Owner Participant to the Owner Participant of its Beneficial Interest
and the transfer of title to the Aircraft from the Lessee to the Owner
Trustee, the following cash payments will be made by wire transfer of
immediately available funds on the Delivery Date: (A) by the Owner Trustee to
the Lessee, an amount equal to the Purchase Price, or such lesser amount
referred to in the proviso to this Section 3.02(a), and (B) by the Indenture
Trustee, on behalf of the Owner Trustee, to the Lessee the excess of any
amounts as may then be held in the Collateral Account over the Debt Portion;
provided, however, that if (1) the Delivery Date has been postponed, (2) the
investments contemplated by Section 2.14(b) of the Indenture have been made,
(3) such investments do not mature on the rescheduled Delivery Date and (4)
the Lessee elects not to break such investments, then the Indenture Trustee
shall not release amounts in the Collateral Account to the Owner Trustee and
the Lessee shall accept as payment of the Purchase Price by the Owner Trustee
an amount equal to the Owner Participant's Commitment and the Indenture
Trustee shall pay to the Lessee at the end of the applicable investment period
referred to in Section 2.14(b) of the Indenture of all amounts then held in the
Collateral Account.
(b) No Obligation to Increase Commitments; Delayed Delivery. (i) If
the Indenture Trustee shall default in its obligation to make the amount of
its Debt Portion available pursuant hereto, the Owner Participant shall have
no obligation to make any portion of such Debt Portion available or to
increase the amount of its Commitment, but the obligations of the Owner
Participant shall nevertheless remain subject to the terms and conditions of
this Agreement.
(ii) Subject to the provisions of Section 3.03 hereof, if the closing
of the transactions contemplated by the Operative Agreements shall not have
been consummated by 2:00 p.m. (New York City time), or such earlier time as
directed by the Lessee, on the Scheduled Delivery Date, the Owner Trustee
shall, if instructed in writing by the Lessee, at the risk and expense of the
Lessee, use its reasonable best efforts to cause the Owner Participant's
Commitment to be invested and reinvested to the extent practicable at the
direction received by it from the Lessee (with a copy to the Owner
Participant), at the risk of the Lessee, in Permitted Investments consisting
of either commercial paper or time deposits; provided, however, that in the
absence of instructions by 2:00 p.m. (New York City time) the Owner Trustee
shall use its reasonable best efforts to cause such amount or the proceeds
thereof to be invested and reinvested to the extent practicable in overnight
Eurodollar time deposits. Earnings on any such investments shall be applied
to the Lessee's payment obligations, if any, to such Owner Participant
pursuant to the next succeeding paragraph, and the balance, if any, of such
earnings remaining after such application shall be paid in accordance with the
Lessee's written instructions.
If for any reason (i) the Operative Agreements shall not be executed
and delivered by the respective parties thereto and/or the delayed Delivery
Date shall not occur (whether by reason of a failure to meet a condition
precedent thereto set forth in Article 4 hereof or otherwise) on or before the
third Business Day after the Scheduled Delivery Date (or earlier if requested
by the Owner Participant) or, if earlier, the Cut-Off Date, or (ii) the Lessee
has notified the Owner Trustee (with a copy to the Owner Participant) prior to
2:00 p.m. (New York City time) on any date after the Scheduled Delivery Date
that it does not intend to go forward to close the transactions contemplated
hereby for such Delivery Date, the Owner Participant may cancel any funding
arrangements made to fund its Commitment on the Scheduled Delivery Date but
the Owner Participant's Commitment hereunder with respect to the Aircraft shall
not be terminated thereby until the Cut-Off Date, whereupon the Owner
Participant's Commitment hereunder shall terminate. On such third Business
Day (or such earlier date) or the Cut-Off Date, as the case may be, or the
earliest practicable Business Day thereafter, the Owner Trustee shall return
the amounts held by it hereunder to the Owner Participant, provided that the
Owner Trustee shall have had a reasonable time to liquidate any Permitted
Investments it has been authorized to invest in pursuant to the preceding
paragraph and to obtain the proceeds therefrom in funds of the type originally
received, and the Lessee shall pay interest on such funds to the Owner
Participant at the Debt Rate, such interest to be payable for the period from
and including such Scheduled Delivery Date to but excluding the date such
funds are returned to the Owner Participant in accordance with the terms
hereof; provided that if any such funds are returned to the Owner Participant
after 2:00 p.m. (New York City time) on any such date, such funds shall be
deemed for purposes of this paragraph to have been returned on the next
succeeding Business Day.
The Lessee shall reimburse the Owner Trustee on demand for any loss
incurred by the Owner Trustee as a result of the investment of funds by the
Owner Trustee in accordance with the terms of this Section 3.02(b). Further,
the Lessee shall indemnify the Owner Trustee and hold it harmless from and
against any cost or expense the Owner Trustee may incur as a result of any
investment of funds or transfer of funds referred to herein in accordance with
the terms hereof. The Owner Trustee shall not be liable for failure to invest
such funds except as otherwise provided herein or for any losses incurred on
such investments except for any losses arising out of its own gross negligence
or willful misconduct.
Section 3.03. Postponement of Delivery Date. (a) If no Owner
Participant has committed to participate in the transactions contemplated to
occur on the Scheduled Delivery Date or if an Owner Participant shall for any
reason fail or refuse to make the full amount of its Commitment available on
the Scheduled Delivery Date in accordance with the terms of Section 3.02
hereof, the Owner Trustee will promptly give each party confirmed facsimile
notice thereof and the Lessee shall postpone the Delivery Date to a date not
later than the Cut-Off Date. If no Owner Participant has committed to
participate or an Owner Participant shall for any reason fail or refuse to
make the full amount of its Commitment available in accordance with the terms
of Section 3.02 hereof on such postponed Delivery Date, the Lessee shall
endeavor during such period to identify another equity investor to whom it can
assign its Beneficial Interest. If the Lessee identifies an equity investor,
the Lessee shall assign its interest in the Lessor's Estate as provided above.
In case of any such conveyance (but subject to the satisfaction of the
conditions precedent specified in an amendment hereto), the Indenture Trustee
shall release the Debt Portion or such lesser amount as may then be held in
the Collateral Account for application to the payments contemplated in the
last sentence of Section 3.02(a) hereof, subject to the proviso to Section
3.02(a) hereof.
(b) Release of Obligations. If the Delivery Date has not occurred
on or prior to the Cut-Off Date (including by reason of the Aircraft not being
completed and delivered, there being no Owner Participant committed to
participate in the transactions contemplated to occur on the Delivery Date or
by reason of an Owner Participant's failure to make the full amount of its
Commitment available in accordance with the terms of Section 3.02 hereof and
no transferee Owner Participant having been identified pursuant to Section
3.03(a) hereof), then, in such event, the Owner Trustee shall not purchase the
Aircraft from the Lessee, and the parties to the Operative Agreements shall
have no further obligations or liabilities under any of said Operative
Agreements with respect to the Aircraft, including the obligation of the Owner
Participant to participate in the payment of the Purchase Price, and such
documents shall terminate and have no further force or effect with respect to
the Aircraft; provided, however, that the Lessee shall provide, no later than
the Cut-Off Date, notice of prepayment to the Indenture Trustee and the
Certificates shall be prepaid on the 15th day following the Cut-Off Date as
provided in Section 6.02(a)(vi) of the Indenture and Section 17.02(c) hereof
and provided further, that (i) the Lessee's obligation to indemnify such
parties to the extent provided in such documents, shall not be diminished or
modified in any respect and (ii) the obligations of the Owner Trustee, the
Indenture Trustee and the Lessee to return funds and pay interest, costs,
expenses and other amounts thereon or in respect thereof as provided in
Section 3.02 hereof shall continue.
(c) Optional Postponement. Without limiting the provisions of
Section 3.02(b) hereof, the Scheduled Delivery Date may be postponed from time
to time (but in no event shall the Delivery Date be later than the Cut-Off
Date) for any reason, other than pursuant to Section 3.03(a) hereof, if the
Lessee gives the Owner Participant, the Indenture Trustee, the Owner Trustee
and the Pass Through Trustee confirmed facsimile notice (or telephone notice
followed by written confirmation) of such postponement and notice of the date
to which the Delivery Date has been postponed, such notice of postponement to
be received by each party no later than 11:00 a.m. (New York City time) on the
Business Day preceding the Scheduled Delivery Date.
Section 3.04. Closing. The closing with respect to the purchase and
lease of the Aircraft on the Delivery Date shall take place at the offices of
Davis Polk & Wardwell, 450 Lexington Avenue, New York, New York 10017.
ARTICLE 4
CONDITIONS PRECEDENT
Section 4.01. Conditions Precedent (Certificate Closing Date). The
obligations of the Owner Trustee, the Lessee, the Indenture Trustee, the
Subordination Agent and the Pass Through Trustee on behalf of each Pass
Through Trust to participate in the transactions contemplated hereby on the
Certificate Closing Date are subject to the fulfillment to the satisfaction of
such party (or waiver by such party), prior to or on the Certificate Closing
Date, of the following conditions precedent (it being understood that receipt
by the Lessee of any of the following documents shall not be a condition
precedent to the obligations of any party):
(a) Certificates. On the Certificate Closing Date, there shall have
been duly issued and delivered by the Owner Trustee to the Subordination
Agent on behalf of the Pass Through Trustee for each of the Pass Through
Trusts, against payment therefor, a Certificate, substantially in the form
set forth in Exhibit B to the Indenture, duly authenticated, dated the
Certificate Closing Date and registered in the name of the Subordination
Agent, in the principal amounts, Series, Maturity, bearing the interest
rate and the other economic terms specified in the Series Supplements and
otherwise as provided in Section 2.04 of the Indenture. The Pass Through
Certificates shall be registered under the Securities Act, any applicable
state securities laws shall have been complied with, and the Pass Through
Agreement shall have been qualified under the Trust Indenture Act.
(b) Legal Investment. On the Certificate Closing Date, no fact or
condition shall exist under applicable laws or regulations, or
interpretations of any such laws or regulations by applicable regulatory
authorities, which, in the opinion of the Pass Through Trustee, the
Subordination Agent or the Indenture Trustee or their special counsel,
would make it illegal for the Initial Owner Participant, the Lessee, the
Owner Trustee, the Pass Through Trustee, the Subordination Agent or the
Indenture Trustee, and no change in circumstances shall have occurred which
would otherwise make it illegal for such Initial Owner Participant, the
Lessee, the Owner Trustee, the Pass Through Trustee, the Subordination
Agent or the Indenture Trustee, to participate in the transactions to be
consummated on the Certificate Closing Date; and no action or proceeding
shall have been instituted nor shall governmental action before any court,
governmental authority or agency be threatened which in the opinion of
counsel for the Indenture Trustee, the Subordination Agent or the Pass
Through Trustee is not frivolous, nor shall any order have been issued or
proposed to be issued by any court, or governmental authority or agency, as
of the Certificate Closing Date, to set aside, restrain, enjoin or prevent
the consummation of any of the transactions contemplated by this Agreement
or by any of the other Operative Agreements.
(c) Underwriters. The Underwriters shall have transferred the funds
specified in Section 2.01(a) hereof and all conditions thereunder shall
have been satisfied or waived.
(d) Documents. This Agreement and the following documents shall have
been duly authorized, executed and delivered by the respective party or
parties thereto, shall each be satisfactory in form and substance to the
Lessee, the Owner Trustee, the Indenture Trustee and the Pass Through
Trustee (each acting directly or by authorization to its special counsel)
and shall each be in full force and effect; there shall not have occurred
any default thereunder, or any event which with the lapse of time or the
giving of notice or both would be a default thereunder, and copies executed
or certified as requested by the Lessee, the Owner Trustee, the Indenture
Trustee, the Subordination Agent or the Pass Through Trustee, as the case
may be, of such documents shall have been delivered to the Lessee, the
Indenture Trustee, the Pass Through Trustee, the Subordination Agent and the
Owner Trustee (provided that the sole chattel-paper original of each of the
Lease and each Ancillary Agreement amendatory of the Lease, shall be
delivered to the Indenture Trustee):
(i) the Lease;
(ii) the Indenture;
(iii) the Modification Agreement;
(iv) the GTA;
(v) the Trust Agreement;
(vi) the Intercreditor Agreement; and
(vii) the Liquidity Facility for each of the Pass Through Trusts for
the Series A Certificates and the Series B Certificates.
(e) Approvals. All approvals and consents of any trustees or
holders of any indebtedness or obligations of the Lessee, which in the
opinion of the Pass Through Trustee or the Indenture Trustee are required
in connection with any transaction contemplated by this Agreement, shall
have been duly obtained.
(f) Financing Statements. Uniform Commercial Code ("UCC") financing
statements covering all the security interests (and other interests)
intended to be created by or pursuant to the Granting Clause of the
Indenture shall have been executed and delivered by the Owner Trustee, as
debtor, and by the Indenture Trustee, as secured party, for and on behalf
of the Holders, and such financing statements shall have been duly filed or
duly submitted for filing in the State of Connecticut, and all other
actions shall have been taken which, in the opinion of the Pass Through
Trustee and the Underwriters, are necessary to perfect and protect such
security interests and other interests.
(g) Corporate Documents. Except when such Person is the delivering
party, the Owner Trustee, the Pass Through Trustee, the Lessee and the
Indenture Trustee (acting directly or by authorization to its counsel)
shall have received the following, in each case in form and substance
satisfactory to it:
(i) a copy of the certificate of incorporation and by-laws of the
Lessee, certified by the Secretary or an Assistant Secretary of the
Lessee as of the Certificate Closing Date, and a copy of the minutes
of the regular meeting of the board of directors of the Lessee,
certified as such as of the Certificate Closing Date by such
Secretary or Assistant Secretary, duly authorizing the lease by the
Lessee of the Aircraft under the Lease and the execution, delivery
and performance by the Lessee of this Agreement, the Lease, the Pass
Through Agreement, the Series Supplements, the other Operative
Agreements to which the Lessee is or is to be a party and each other
document to be executed and delivered by the Lessee in connection
with the transactions contemplated hereby;
(ii) a copy of the certificate of incorporation and by-laws and
other instruments of the Owner Trustee, certified by the Secretary or
an Assistant Secretary of the Owner Trustee as of the Certificate
Closing Date (or other like instruments satisfactory to the Lessee
and the Owner Participant) and evidence authorizing the execution,
delivery and performance by the Owner Trustee in its individual
capacity or as Owner Trustee, as the case may be, of this Agreement,
the Trust Agreement and each of the other Operative Agreements to
which it is or is to be a party, whether in its individual capacity
or as Owner Trustee, and each other document to be executed and
delivered by the Owner Trustee in connection with the transactions
contemplated hereby;
(iii) a copy of the articles of association and by-laws and other
instruments of the Indenture Trustee, certified by the Secretary or an
Assistant Secretary of the Indenture Trustee as of the Certificate
Closing Date (or other like instruments satisfactory to the Lessee
and the Owner Participant) and evidence authorizing the execution,
delivery and performance by the Indenture Trustee of each of this
Agreement, the Indenture and each of the other Operative Agreements
to which it is or is to be a party, and each other document to be
executed and delivered by the Indenture Trustee in connection with
the transactions contemplated hereby;
(iv) a copy of the certificate of incorporation and by-laws and
other instruments of the Pass Through Trustee, certified by the
Secretary or an Assistant Secretary of the Pass Through Trustee as of
the Certificate Closing Date (or other like instruments satisfactory
to the Lessee and the Owner Participant) and evidence authorizing the
execution, delivery and performance by the Pass Through Trustee of
this Agreement, the Pass Through Agreement, the Series Supplements
and each of the other Operative Agreements to which it is or is to be
a party, and each other document to be executed and delivered by the
Pass Through Trustee in connection with the transactions contemplated
hereby;
(v) a copy of the certificate of incorporation and by-laws and
other instruments of the Subordination Agent, certified by the
Secretary or an Assistant Secretary of the Subordination Agent as of
the Certificate Closing Date (or other like instruments satisfactory
to the Lessee and the Owner Participant) and evidence authorizing the
execution, delivery and performance by the Subordination Agent of
this Agreement, the Intercreditor Agreement and each of the other
Operative Agreements to which it is or is to be a party, and each
other document to be executed and delivered by the Subordination
Agent in connection with the transactions contemplated hereby; and
(vi) such other documents, evidences, materials, and information
with respect to the Lessee, the Owner Trustee, the Indenture Trustee
and the Pass Through Trustee as the Indenture Trustee or the Pass
Through Trustee may reasonably request in order to establish the
consummation of the transactions contemplated by this Agreement.
(h) Officer's Certificate of Lessee. On the Certificate Closing
Date, the following statements shall be true, and the Owner Trustee, the
Pass Through Trustee and the Indenture Trustee shall have received a
certificate signed by the Vice President and Treasurer or any other duly
authorized officer of the Lessee, dated the Certificate Closing Date,
stating that:
(i) the representations and warranties of the Lessee contained in
the Operative Agreements to which it is a party and in any
certificate delivered pursuant hereto or thereto are true and correct
on and as of the Certificate Closing Date as though made on and as of
such date (except to the extent that such representations and
warranties relate solely to an earlier date, in which case such
certificate shall state that such representations and warranties were
true and correct on and as of such earlier date);
(ii) except for the matters described (i) under "Legal
Proceedings" in the Lessee's Annual Report on Form 10-K for the
fiscal year ended May 31, 1996 (as updated by Note 7 to the financial
statements included in the Lessee's Quarterly Reports on Form 10-Q
for the fiscal quarters ended August 31, 1996, November 30, 1996 and
February 28, 1997) and (ii) in the Lessee's Current Reports on Form
8-K dated June 7, 1996, August 16, 1996 and March 4, 1997, as to
which such officer will make no certification concerning the
liability of the Lessee (if any), or the effect of any adverse
determination upon the consolidated financial condition, business or
operations of the Lessee, no material adverse change has occurred in
the financial condition, business or operations of the Lessee from
that shown in the audited financial statements of the Lessee as of
May 31, 1996 or the unaudited consolidated financial statements of
the Lessee as of February 28, 1997 and nothing has occurred which
will, in the judgment of such officer, materially adversely affect
the ability of the Lessee to carry on its business or to perform its
obligations under this Agreement and each other Operative Agreement
to which it is or is to be a party; and
(iii) no event has occurred and is continuing, or would result
from the purchase, sale, mortgage, or lease of the Aircraft, which
constitutes an Event of Loss (or event which with the passage of time
would become an Event of Loss) with respect to the Airframe or any
Engine, or a Default or an Event of Default under the Lease.
(i) Other Officer's Certificates. On the Certificate Closing Date,
the following statements shall be true, and the Lessee, the Pass Through
Trustee, the Owner Trustee, the Subordination Agent and the Indenture
Trustee shall have received a certificate from each of SSB and the Owner
Trustee (in the case of the Lessee, the Pass Through Trustee, the
Subordination Agent and the Indenture Trustee), FSB and the Indenture
Trustee (in the case of the Lessee, the Pass Through Trustee, the
Subordination Agent and the Owner Trustee), FSB and the Pass Through
Trustee (in the case of the Lessee, the Indenture Trustee, the
Subordination Agent and the Owner Trustee) and FSB and the Subordination
Agent (in the case of the Lessee, the Pass Through Trustee, the Indenture
Trustee and the Owner Trustee), signed by a duly authorized officer of SSB
and FSB, respectively, dated the Certificate Closing Date, stating with
respect to SSB and the Owner Trustee, with respect to FSB and the Indenture
Trustee, with respect to FSB and the Pass Through Trustee or with respect
to FSB and the Subordination Agent, as the case may be, that:
(i) the representations and warranties of SSB in its individual
capacity and as Owner Trustee, of FSB in its individual capacity and
as Indenture Trustee, of FSB in its individual capacity and as Pass
Through Trustee or of FSB in its individual capacity and as
Subordination Agent contained in this Agreement, the Lease, the Trust
Agreement and the Indenture and in any certificate delivered pursuant
hereto or thereto are true and correct on and as of the Certificate
Closing Date as though made on and as of such date (except to the
extent that such representations and warranties relate solely to an
earlier date, in which case such certificate shall state that such
representations and warranties were true and correct on and as of such
earlier date);
(ii) to the best of its knowledge, no event has occurred and is
continuing, which constitutes or which, but for the lapse of time or
the giving of notice, or both, would constitute, due to any action or
omission on the part of SSB in its individual capacity or as Owner
Trustee, of FSB in its individual capacity or as Indenture Trustee,
of FSB in its individual capacity or as Pass Through Trustee, an
Event of Default or an Indenture Event of Default or of FSB in its
individual capacity or as Subordination Agent, an Event of Default or
an Indenture Event of Default; and
(iii) there are no Lessor's Liens attributable to the Owner
Trustee or SSB and no Indenture Trustee's Liens.
(j) Legal Opinions. The Underwriters, the Lessee, the Owner
Trustee, the Pass Through Trustee and the Indenture Trustee (acting
directly or by authorization to its special counsel) shall have received
from the following counsel their respective legal opinions in each case
satisfactory to the Underwriters, the Lessee, the Owner Trustee, the Pass
Through Trustee or the Indenture Trustee, as the case may be, as to scope
and substance (and covering such other matters as the recipient may
reasonably request) and dated the Certificate Closing Date:
(i) George W. Hearn, Vice President - Law of the Lessee, in the
form of Exhibit A(1)(a)(i) hereto and addressed to the Underwriters,
the Owner Trustee, the Pass Through Trustee, each Liquidity Provider
and the Indenture Trustee;
(ii) Davis Polk & Wardwell, special counsel for the Lessee, in the
form of Exhibit A(1)(b)(i) hereto and addressed to the Underwriters,
the Indenture Trustee, the Owner Trustee, the Pass Through Trustee,
each Liquidity Provider and the Lessee;
(iii) Ray, Quinney & Nebeker, special counsel for the Indenture
Trustee, in the form of Exhibit A(2) hereto and addressed to the
Underwriters, the Indenture Trustee, the Owner Trustee, the Pass
Through Trustee, each Liquidity Provider and the Lessee;
(iv) Bingham, Dana & Gould LLP, special counsel for the Owner
Trustee, in the form of Exhibit A(3)(a)(i) hereto and addressed to
the Underwriters, the Indenture Trustee, the Owner Trustee, the Pass
Through Trustee, each Liquidity Provider and the Lessee;
(v) Ray, Quinney & Nebeker, special counsel for the Pass Through
Trustee and the Subordination Agent, in the form of Exhibit A(4)
hereto and addressed to the Underwriters, the Indenture Trustee, the
Owner Trustee, the Pass Through Trustee, each Liquidity Provider and
the Lessee; and
(vi) Johan Tyteca, Esq., manager of the Legal Department of
Kredietbank N.V., in the form of Exhibit A(5)(a) hereto, and Milbank,
Tweed, Hadley & McCloy, special counsel for the Liquidity Providers,
in the form of Exhibit A(5)(b) hereto, each addressed to the Pass
Through Trustee, the Subordination Agent, each Liquidity Provider and
the Lessee.
(k) No Indenture Event of Default. No Indenture Event of Default or
Indenture Default has occurred and is continuing.
(l) Event of Default; Default; Event of Loss. No Default or Event
of Default under the Lease or Event of Loss or event, which with the
passage of time or if continued unremedied or unaltered would constitute an
Event of Loss, shall have occurred or be in existence.
(m) Other Agreements. The Lessee and the Pass Through Trustee shall
have entered into the Pass Through Agreement and the Series Supplements, all
conditions to the effectiveness of each thereof shall have been satisfied
or waived, and the Pass Through Certificates shall have been issued
pursuant to the Series Supplements. The Lessee and the Underwriters shall
have entered into the Underwriting Agreement, all conditions to the
effectiveness thereof shall have been satisfied or waived, and the Pass
Through Certificates shall have been delivered pursuant to the Underwriting
Agreement. All conditions to the effectiveness of each Liquidity Facility
shall have been satisfied or waived.
(n) Payment of Taxes. (A) All taxes, fees, charges, assessments,
costs and other expenses then due and payable in connection with the
execution, delivery, recording and filing of all financing statements
referred to in subparagraph (f) of this Section 4.01, or in connection with
the issuance of the Certificates shall have been duly paid or caused to be
paid in full; and (B) all sales or use taxes and duties related to the
consummation of the transactions contemplated by the Operative Agreements
on the Certificate Closing Date which are then due and payable shall have
been duly paid in full.
(o) Governmental Compliance. All appropriate action required to
have been taken by the FAA, the SEC, or any governmental or political
agency, subdivision or instrumentality of the United States, prior to the
Certificate Closing Date in connection with the transactions contemplated
by this Agreement shall have been taken, and all orders, permits, waivers,
authorizations, exemptions and approvals (collectively "permits") of such
entities required to be in effect on the Certificate Closing Date in
connection with the transactions contemplated by this Agreement shall have
been issued, and all such permits shall be in full force and effect on the
Certificate Closing Date.
(p) Section 131.3 of the New York State Banking Law Filing. SSB
shall have delivered evidence of its filing made with the New York
Superintendent of Banking pursuant to Section 131.3 of the New York State
Banking Law.
Section 4.02. Conditions Precedent (Delivery Date). Subject to the
last paragraph of this Section 4.02, the obligations of the Owner Trustee, the
Owner Participant, the Indenture Trustee, the Subordination Agent and the Pass
Through Trustee on behalf of each Pass Through Trust to participate in the
transactions contemplated hereby on the Delivery Date are subject to the
fulfillment to the satisfaction of each party (or waiver by such party), prior
to or on the Delivery Date, of the following conditions precedent (it being
understood that receipt by the Lessee of any of the following documents shall
not be a condition precedent to the obligation of any party):
(a) Notice, Etc. Each party hereto shall have received a Delivery
Notice pursuant to Section 3.01 hereof at least three (3) Business Days
prior to the Delivery Date.
(b) Legal Investment. No change shall have occurred after the date
which is two days prior to the Certificate Closing Date in applicable laws
or regulations, or interpretations of any such laws or regulations by
applicable regulatory authorities, which, in the opinion of the Owner
Participant or its special counsel, the Pass Through Trustee, the
Subordination Agent or the Indenture Trustee or their special counsel,
would make it illegal for the Owner Participant, the Lessee, the Owner
Trustee, the Pass Through Trustee, the Subordination Agent or the Indenture
Trustee, and no change in circumstances shall have occurred which would
otherwise make it illegal or otherwise in contravention of guidance issued
by regulatory authorities for the Owner Participant, the Lessee, the Owner
Trustee, the Pass Through Trustee, the Subordination Agent or the Indenture
Trustee, to participate in the transactions to be consummated on the
Delivery Date; and no action or proceeding shall have been instituted nor
shall governmental action before any court, governmental authority or
agency be threatened which in the opinion of counsel for the Owner
Participant, the Indenture Trustee, the Subordination Agent or the Pass
Through Trustee is not frivolous, nor shall any order have been issued or
proposed to be issued by any court, or governmental authority or agency, as
of the Delivery Date, to set aside, restrain, enjoin or prevent the
consummation of any of the transactions contemplated by this Agreement or
by any of the other Operative Agreements.
(c) Documents. The documents referred to in Section 4.01(d) hereof
shall each be in full force and effect and the following documents shall
have been duly authorized, executed and delivered by the respective party
or parties thereto, shall each be satisfactory in form and substance to the
Lessee, the Owner Trustee, the Indenture Trustee, the Pass Through Trustee,
the Subordination Agent and the Owner Participant (each acting directly or
by authorization to its special counsel) and shall each be in full force
and effect; there shall not have occurred any default thereunder, or any
event which with the lapse of time or the giving of notice or both would be
a default thereunder, and copies executed or certified as requested by the
Lessee, the Owner Trustee, the Indenture Trustee, the Pass Through Trustee
or the Owner Participant, as the case may be, of such documents shall have
been delivered to the Owner Participant, the Lessee, the Indenture Trustee,
the Pass Through Trustee and the Owner Trustee (provided that the sole
chattel-paper original of the amended and restated Lease (whether delivered
on the Transfer Date or the Delivery Date), the Lease Supplement and the
Ancillary Agreement I shall be delivered to the Indenture Trustee):
(i) this Agreement, as amended and restated as of the Delivery Date;
(ii) the Lease, as amended and restated as of the Delivery Date;
(iii) the Trust Agreement, as amended and restated as of the Delivery
Date;
(iv) the Indenture, as amended and restated as of the Delivery Date;
(v) the Lease Supplement covering the Aircraft, dated the Delivery
Date;
(vi) the Indenture and Security Agreement Supplement covering the
Aircraft, dated the Delivery Date;
(vii) in the case of the Owner Participant only, the Tax Indemnity
Agreement (unless delivered on the Transfer Date);
(viii) the Ancillary Agreement I;
(ix) the Invoice;
(x) the Engine Warranty Assignment;
(xi) the Engine Consent; and
(xii) the Bills of Sale;
unless, in the case of each of the documents listed in clauses (i) through
(iv) above they shall have been amended and restated as of and delivered on
the Transfer Date.
(d) Legal Opinions. The Owner Participant, the Underwriters, the
Lessee, the Owner Trustee, the Pass Through Trustee and the Indenture
Trustee (acting directly or by authorization to its special counsel) shall
have received from the following counsel their respective legal opinions in
each case satisfactory to the Owner Participant, the Underwriters, the
Lessee, the Owner Trustee, the Pass Through Trustee or the Indenture
Trustee, as the case may be, as to scope and substance (and covering such
other matters as the recipient may reasonably request) and dated the
Delivery Date:
(i) George W. Hearn, Vice President - Law of the Lessee, in the
form of Exhibit A(1)(a)(ii) hereto and addressed to the Underwriters,
the Owner Participant, the Owner Trustee, the Pass Through Trustee,
each Liquidity Provider and the Indenture Trustee;
(ii) Davis Polk & Wardwell, special counsel for the Lessee, in the
form of Exhibit A(1)(b)(ii) hereto and addressed to the Underwriters,
the Owner Participant, the Indenture Trustee, the Owner Trustee, the
Pass Through Trustee, each Liquidity Provider and the Lessee;
(iii) Bingham, Dana & Gould, special counsel for the Owner
Trustee, in the form of Exhibit A(3)(a)(ii) hereto and addressed to
the Underwriters, the Owner Participant, the Indenture Trustee, the
Owner Trustee, the Pass Through Trustee, each Liquidity Provider and
the Lessee;
(iv) Special counsel for the Owner Participant, and in-house
counsel for the Owner Participant, each addressed to the
Underwriters, the Owner Participant, the Indenture Trustee, the Owner
Trustee, the Pass Through Trustee, each Liquidity Provider and the
Lessee;
(v) counsel for the Engine Manufacturer, in the form of Exhibit
A(6) hereto and addressed to the Underwriters, the Owner Participant,
the Indenture Trustee, the Owner Trustee, the Pass Through Trustee,
each Liquidity Provider and the Lessee; and
(vi) Daugherty, Fowler & Peregrin, special aviation counsel, in
the form of Exhibit A(7) hereto and addressed to the Underwriters,
the Owner Participant, the Indenture Trustee, the Owner Trustee, the
Pass Through Trustee, each Liquidity Provider and the Lessee.
(e) Title, Airworthiness and Registration. On the Delivery Date, the
following statements shall be true, and the Owner Participant, the Indenture
Trustee, the Pass Through Trustee and the Owner Trustee shall have received
evidence from the Lessee reasonably satisfactory to the Owner Participant,
the Indenture Trustee, the Pass Through Trustee and the Owner Trustee to
the effect that:
(i) the Owner Trustee has good and marketable title (subject to
filing and recording of the FAA Bill of Sale with the Aeronautics
Authority) to the Aircraft, free and clear of Liens, except the
rights of the Owner Trustee and the Lessee under the Lease and the
Lease Supplement covering the Aircraft, the rights of the Indenture
Trustee under the Indenture and the beneficial interest of the Owner
Participant created by the Trust Agreement and the interest of the
Certificate Holders created by the Indenture and the Indenture and
Security Agreement Supplement covering the Aircraft, which evidence
shall include the Bills of Sale;
(ii) the Aircraft has been duly certificated by the Aeronautics
Authority as to type and airworthiness in accordance with the terms
of the Operative Agreements;
(iii) the FAA Bill of Sale, the amended and restated Lease and the
Lease Supplement covering the Aircraft, the amended and restated
Indenture and the Indenture and Security Agreement Supplement
covering the Aircraft and the amended and restated Trust Agreement
shall have been duly filed for recordation (or shall be in the
process of being so duly filed for recordation) with the Aeronautics
Authority pursuant to the Transportation Code; and
(iv) application to the Aeronautics Authority for registration of
the Aircraft in the name of the Owner Trustee shall have been duly
made and the Lessee shall have temporary or permanent authority to
operate the Aircraft.
(f) Financing Statements. (i) a form UCC-3 financing statement to
amend and restate each financing statement referred to in Section 4.01(f)
hereof shall have been executed and delivered by the Owner Trustee, as
debtor, and by the Indenture Trustee as secured party, and a form UCC-1
financing statement covering all the security interests (and other
interests) created by or pursuant to the Granting Clause of the Indenture
shall have been executed and delivered by the Owner Trustee, as debtor, and
by the Indenture Trustee, as secured party, for and on behalf of the
Holders, and concurrently with the transactions contemplated on the
Delivery Date such UCC-3 financing statement and UCC-1 financing statement
shall have been duly filed or duly submitted for filing in the State of
Connecticut, and all other actions shall have been taken which, in the
opinion of special counsel for the Pass Through Trustee or for the
Underwriters, are necessary or desirable to maintain the perfection of the
security interest created by or pursuant to the Granting Clause of the
Indenture, and (ii) a UCC notice filing describing the Lease as a lease
shall have been executed and delivered by the Owner Trustee, as lessor, and
the Lessee, as lessee (which filing shall name the Indenture Trustee as
assignee of the Owner Trustee), and shall have been duly filed in the State
of Tennessee.
(g) Payments. The Owner Participant shall have made available its
Commitment to the Owner Trustee and the other payments contemplated by
Section 3.02 hereof shall have been made.
(h) Report of Aircraft Expert. The Owner Participant shall have
received a report prepared by BK Associates, Inc. addressed to the Owner
Participant (with an abbreviated report to the Lessee) which report shall
be in form and substance satisfactory to the Owner Participant to the
effect, among other things, that on the Delivery Date:
(i) (A) the estimated fair market value of the Aircraft net of
any cost to the Owner Participant or the Owner Trustee of return at
the end of the Basic Term and any Fixed Renewal Term (determined
without including in such value any increase or decrease for
inflation or deflation during the Term) is equal to or greater than
20% of the Purchase Price for the Aircraft and (B) at least 20% of
the useful economic life of the Aircraft will be remaining at the end
of the Basic Term and any Fixed Renewal Term;
(ii) the estimated useful life of the Aircraft is at least 133% of
the Basic Term and any Fixed Renewal Term;
(iii) the Purchase Price of the Aircraft is no greater than the
fair market value of the Aircraft on the Delivery Date;
(iv) on the Delivery Date, the Aircraft will not require any
modifications, improvements or additions in order to be rendered
complete for its intended purpose by the Lessee;
(v) the amount payable by the Lessee upon the exercise of its
purchase option pursuant to Section 4.02(a)(F) of the Lease equals or
exceeds the currently estimated Fair Market Value of the Aircraft on
such date (taking into account inflation or deflation to such date);
and
(vi) the Aircraft is not limited use property.
(i) Insurance. Each of the Indenture Trustee, the Pass Through
Trustee, the Owner Trustee and the Owner Participant shall have received
such evidence as it deems appropriate, including, without limitation, an
independent insurance broker's report, together with certificates of
insurance from such broker, in form and substance satisfactory to the
Indenture Trustee, the Pass Through Trustee, the Owner Trustee and the
Owner Participant to establish that the insurance required by Article 13 of
the Lease is in effect.
(j) Payment of Taxes. (A) All taxes, fees, charges, assessments,
costs and other expenses then due and payable in connection with the
execution, delivery, recording and filing of all financing statements and
the documents and instruments referred to in subparagraphs (e) and (f) of
this Section 4.02, or in connection with the purchase of the Aircraft by
the Owner Trustee and the making by the Owner Participant of its equity
investment shall have been duly paid or caused to be paid in full; and (B)
all sales or use taxes and duties related to the consummation of the
transactions contemplated by the Operative Agreements on the Delivery Date
which are then due and payable shall have been duly paid in full.
(k) No Indenture Event of Default. No Indenture Event of Default or
Indenture Default has occurred and is continuing.
(l) Event of Default; Default; Event of Loss. No Default or Event
of Default under the Lease or Event of Loss or event, which with the
passage of time or if continued unremedied or unaltered would constitute an
Event of Loss, shall have occurred or be in existence.
(m) Governmental Compliance. All appropriate action required to
have been taken by the FAA, the SEC, or any governmental or political
agency, subdivision or instrumentality of the United States, prior to the
Delivery Date in connection with the transactions contemplated by this
Agreement shall have been taken, and all orders, permits, waivers,
authorizations, exemptions and approvals (collectively "permits") of such
entities required to be in effect on the Delivery Date in connection with
the transactions contemplated by this Agreement shall have been issued, and
all such permits shall be in full force and effect on the Delivery Date.
(n) Officer's Certificate of Lessee. On the Delivery Date, the
following statements shall be true, and the Owner Participant, the Owner
Trustee, the Pass Through Trustee and the Indenture Trustee shall have
received a certificate signed by the Vice President and Treasurer or any
other duly authorized officer of the Lessee, dated the Delivery Date,
stating that:
(i) the representations and warranties of the Lessee contained in
the Operative Agreements to which it is a party (excluding the Tax
Indemnity Agreement) and in any certificate delivered pursuant hereto
or thereto are true and correct on and as of the Delivery Date as
though made on and as of such date (except to the extent that such
representations and warranties relate solely to an earlier date, in
which case such certificate shall state that such representations and
warranties were true and correct on and as of such earlier date);
(ii) except for the matters described (i) under "Legal
Proceedings" in the Lessee's Annual Report on Form 10-K for the
fiscal year ended May 31, 1996 (as updated by Note 7 to the financial
statements included in the Lessee's Quarterly Reports on Form 10-Q
for the fiscal quarters ended August 31, 1996, November 30, 1996 and
February 28, 1997) and (ii) in the Lessee's Current Reports on Form
8-K dated June 7, 1996, August 16, 1996 and March 4, 1997, as to
which such officer will make no certification concerning the
liability of the Lessee (if any), or the effect of any adverse
determination upon the consolidated financial condition, business or
operations of the Lessee, no material adverse change has occurred in
the financial condition, business or operations of the Lessee from
that shown in the audited financial statements of the Lessee as of
May 31, 1996 or the unaudited consolidated financial statements of
the Lessee as of February 28, 1997 and nothing has occurred which
will, in the judgment of such officer, materially adversely affect
the ability of the Lessee to carry on its business or to perform its
obligations under this Agreement and each other Operative Agreement
to which it is or is to be a party; and
(iii) no event has occurred and is continuing, or would result
from the purchase, sale, mortgage, or lease of the Aircraft, which
constitutes an Event of Loss (or event which with the passage of time
would become an Event of Loss) with respect to the Airframe or any
Engine, or a Default or an Event of Default under the Lease.
(o) Officer's Certificate of Owner Participant. On the Delivery
Date, the following statements shall be true, and the Lessee, the Pass
Through Trustee, the Owner Trustee and the Indenture Trustee shall have
received a certificate from the Owner Participant, signed by a duly
authorized officer of the Owner Participant dated the Delivery Date,
stating that:
(i) the representations and warranties of the Owner Participant
contained in this Agreement, the Trust Agreement and any other
Operative Agreement (excluding the Tax Indemnity Agreement) to which
it is a party and in any certificate delivered pursuant hereto or
thereto, are true and correct on and as of the Delivery Date as
though made on and as of such date (except to the extent that such
representations and warranties relate solely to an earlier date, in
which case such certificate shall state that such representations and
warranties were true and correct on and as of such earlier date);
(ii) no Lessor's Liens attributable to the Owner Participant
exist; and
(iii) no event has occurred and is continuing which constitutes
or, with notice or lapse of time or both would constitute, due to any
action or omission on the part of the Owner Participant, an Indenture
Event of Default other than an Indenture Event of Default
attributable to a Lease Event of Default.
(p) Other Officer's Certificates. On the Delivery Date, the
following statements shall be true, and the Owner Participant, the Lessee,
the Pass Through Trustee, the Owner Trustee, the Subordination Agent and
the Indenture Trustee shall have received a certificate from each of SSB
and the Owner Trustee (in the case of the Lessee, the Pass Through Trustee,
the Owner Participant, the Subordination Agent and the Indenture Trustee),
FSB and the Indenture Trustee (in the case of the Lessee, the Pass Through
Trustee, the Owner Participant, the Subordination Agent and the Owner
Trustee), FSB and the Pass Through Trustee (in the case of the Lessee, the
Indenture Trustee, the Owner Participant, the Subordination Agent and the
Owner Trustee) and FSB and the Subordination Agent (in the case of the
Lessee, the Indenture Trustee, the Owner Participant, the Pass Through
Trustee and the Owner Trustee) signed by a duly authorized officer of SSB
and FSB, respectively, dated the Delivery Date, stating with respect to SSB
and the Owner Trustee, with respect to FSB and the Indenture Trustee, with
respect to FSB and the Pass Through Trustee or with respect to FSB and the
Subordination Agent, as the case may be, that:
(i) the representations and warranties of SSB in its individual
capacity and as Owner Trustee, of FSB in its individual capacity and
as Indenture Trustee, of FSB in its individual capacity and as Pass
Through Trustee or of FSB in its individual capacity and as
Subordination Agent contained in this Agreement, the Lease, the Trust
Agreement and the Indenture and in any certificate delivered pursuant
hereto or thereto are true and correct on and as of the Delivery Date
as though made on and as of such date (except to the extent that such
representations and warranties relate solely to an earlier date, in
which case such certificate shall state that such representations and
warranties were true and correct on and as of such earlier date);
(ii) to the best of its knowledge, no event has occurred and is
continuing, which constitutes or which, but for the lapse of time or
the giving of notice, or both, would constitute, due to any action or
omission on the part of SSB in its individual capacity or as Owner
Trustee, of FSB in its individual capacity or as Indenture Trustee,
of FSB in its individual capacity or as Pass Through Trustee, an
Event of Default or an Indenture Event of Default or of FSB in its
individual capacity or as Subordination Agent, an Event of Default or
an Indenture Event of Default; and
(iii) there are no Lessor's Liens attributable to the Owner
Trustee or SSB and no Indenture Trustee's Liens affecting the Trust
Indenture Estate or the Lessor's Estate or any part thereof.
(q) Release of Debt Portion. The Indenture Trustee shall have
released the Debt Portion from (or such lesser amount as may then be held in)
the Collateral Account.
(r) Officer's Certificate of Lessee Regarding Mandatory Economic
Terms and Mandatory Document Terms. On the Delivery Date, or if earlier, the
Transfer Date, in connection with the amendments contemplated by Section
2.03(a) hereof, the Lessee shall have delivered a certificate to the Pass
Through Trustee and the Liquidity Providers signed by the Vice President and
Treasurer or any other duly authorized officer of the Lessee stating that (i)
the Operative Agreements which are amended and restated as of the Delivery
Date or the Transfer Date, as the case may be, do not vary the Mandatory
Economic Terms and contain the Mandatory Document Terms and (ii) any
substantive modification of such documents from those in effect on the
Certificate Closing Date does not materially and adversely affect the Holders
of Pass Through Certificates and each Liquidity Provider and such
certification shall be true and correct.
Notwithstanding anything else to the contrary in this Section 4.02, it shall
not be a condition precedent to the obligations of the Indenture Trustee, the
Pass Through Trustee or the Subordination Agent that the conditions in Section
4.02(n) and (o) be satisfied if the Lessee certifies that the failure to
fulfill such condition precedent is not reasonably likely to materially
adversely affect the holders of Pass Through Certificates and, in the event of
such failure, there has been delivered to the Indenture Trustee written
confirmation from both Moody's and S&P of the rating on any class of Pass
Through Certificates.
Section 4.03. Opinion of Special Aviation Counsel Upon Registration.
Promptly upon the registration of the Aircraft and the filing and, where
appropriate, recordation pursuant to the Transportation Code, of the FAA Bill
of Sale, the Trust Agreement, the Lease (with the Lease Supplement covering
the Aircraft, the Indenture and the Indenture and Security Agreement
Supplement covering the Aircraft attached as exhibits) and the Indenture (with
the Indenture and Security Agreement Supplement covering the Aircraft attached
as an exhibit), the Lessee shall cause Special Aviation Counsel to deliver to
the Owner Participant, the Lessee, the Owner Trustee, the Pass Through Trustee
and the Indenture Trustee an opinion as to (i) the due registration of the
Aircraft in the name of the Owner Trustee, (ii) the due recording pursuant
to the Transportation Code of the FAA Bill of Sale, the amended and
restated Trust Agreement, the amended and restated Lease (with such Lease
Supplement, the amended and restated Indenture and such Indenture and
Security Agreement Supplement attached as exhibits), and the amended and
restated Indenture (with such Indenture and Security Agreement Supplement
attached as an exhibit), and (iii), subject to customary qualifications,
the lack of any intervening documents with respect to the Aircraft.
ARTICLE 5
CONDITIONS PRECEDENT TO LESSEE'S OBLIGATIONS
Section 5.01. Conditions Precedent to Lessee's Obligations. The
Lessee's obligation to participate in the transactions contemplated hereby on
the Certificate Closing Date is subject to the conditions that, prior to or on
the Certificate Closing Date, the Lessee shall have received the certificates
and other documents which are referred to in, or the opinions to be addressed
to it under, as the case may be, paragraphs (d), (g)(ii)-(v), (i),
(j)(ii)-(vi) of Section 4.01 hereof and the Underwriters shall have made
available the amounts required to be paid by them pursuant to Section 2.01
hereof, and the Lessee's obligation to participate in the transactions
contemplated hereby on the Delivery Date, is subject to the conditions that,
on or prior to the Delivery Date, the Lessee shall have received the documents
which are referred to in, or the opinions to be addressed to it under, as the
case may be, paragraphs (c) and (d)(ii)-(vi) of Section 4.02 hereof and the
Indenture Trustee shall have released the Debt Portion from (or such lesser
amount as may then be held in) the Collateral Account.
ARTICLE 6
LESSEE'S REPRESENTATIONS, WARRANTIES AND COVENANTS
Section 6.01. Lessee's Representations and Warranties. The Lessee
represents and warrants to the Owner Participant, the Owner Trustee (in its
individual capacity and as Owner Trustee), the Pass Through Trustee (in its
individual capacity and as Pass Through Trustee), each Liquidity Provider and
the Indenture Trustee (in its individual capacity and as Indenture Trustee)
that, on the date hereof and as of the Certificate Closing Date and the
Delivery Date (unless otherwise specified herein):
(a) the Lessee is a corporation duly organized and validly existing
and is in good standing under the laws of the State of Delaware with its
principal place of business and chief executive office (as such terms are
used in Article 9 of the Uniform Commercial Code) in Memphis, Tennessee,
and is duly qualified to do business as a foreign corporation and is in
good standing in all jurisdictions in which it has intrastate routes, or
offices or major overhaul facilities or in which other activities of the
Lessee require such qualification;
(b) the Lessee has full power, authority and legal right to conduct
its business and operations as currently conducted and to own or hold under
lease its Properties and to enter into and perform its obligations under
this Agreement, the other Operative Agreements to which it is a party, the
Pass Through Agreement and the Series Supplements (the "Lessee Documents");
(c) the Lessee is an "air carrier" within the meaning of the
Transportation Code and a holder of a certificate under Sections 41102(a)
and 41103 of the Transportation Code and a "citizen of the United States"
within the meaning of Section 40102(a)(15) of the Transportation Code
holding an "air carrier operating certificate" issued under Chapter 447 of
the Transportation Code for aircraft capable of carrying ten (10) or more
individuals or 6,000 pounds or more of cargo, and each such certificate is
in full force and effect;
(d) the Lessee possesses all necessary certificates, franchises,
licenses, permits, rights and concessions and consents (collectively
"permits") which are material to the operation of the routes flown by it
and the conduct of its business and operations as currently conducted and
each such permit is in full force and effect;
(e) the execution, delivery and performance of the Lessee Documents
by the Lessee have been duly authorized by all necessary corporate action
on the part of the Lessee and do not require any stockholder approval, or
approval or consent of any trustee or holder of any indebtedness or
obligations of the Lessee, and each such document has been duly executed
and delivered or, in the case of the Operative Agreements identified in
Section 4.02(c) hereof, will on the Delivery Date be executed and delivered
by the Lessee and constitutes (or will constitute, as the case may be) the
legal, valid and binding obligations of the Lessee enforceable against it
in accordance with the terms thereof except as such enforceability may be
limited by bankruptcy, insolvency, moratorium, reorganization or other
similar laws or equitable principles of general application to or affecting
the enforcement of creditors' rights generally (regardless of whether
enforceability is considered in a proceeding in equity or at law);
(f) no authorization, consent or approval of or other action by, and
no notice to or filing with, any United States federal or state
governmental authority or regulatory body (other than the SEC) is required
for the execution, delivery or performance by the Lessee of the Lessee
Documents or for the use and maintenance of the Aircraft except for such
registrations, applications and recordings referred to in the opinions of
Special Aviation Counsel delivered or to be delivered pursuant to Sections
4.02(d)(iii) and 4.03 hereof and except for the filings referred to in
Sections 4.01(f) and 4.02(f) hereof, all of which shall have been duly
obtained or made and shall be in full force and effect on and as of the
Certificate Closing Date or the Delivery Date, or as contemplated by said
Sections;
(g) neither the execution, delivery or performance by the Lessee of
the Lessee Documents nor compliance with the terms and provisions hereof or
thereof, conflicts or will conflict with or results or will result in a
breach or violation of any of the terms, conditions or provisions of, or
will require any consent (other than the Engine Consent which will be
executed on or prior to the Delivery Date) or approval under, any law,
governmental rule or regulation or the charter documents, as amended, or
bylaws, as amended, of the Lessee or any order, writ, injunction or decree
of any court or governmental authority against the Lessee or by which it or
any of its Properties is bound or any indenture, mortgage or contract or
other agreement or instrument to which the Lessee is a party or by which it
or any of its Properties is bound, or constitutes or will constitute a
default thereunder or results or will result in the imposition of any Lien
upon any of its Properties;
(h) there are no pending or, to the knowledge of the Lessee,
threatened actions, suits, investigations or proceedings (whether or not
purportedly on behalf of the Lessee) against or affecting the Lessee or any
of its Property before or by any court or administrative agency which (A)
involve the Aircraft, (B) except for the matters described (i) under "Legal
Proceedings" in the Lessee's Annual Report on Form 10-K for the fiscal year
ended May 31, 1996 (as updated by Note 7 to the financial statements
included in the Lessee's Quarterly Reports on Form 10-Q for the fiscal
quarters ended August 31, 1996, November 30, 1996 and February 28, 1997)
and (ii) in the Lessee's Current Reports on Form 8-K dated June 7, 1996,
August 16, 1996 and March 4, 1997, as to which no representation is made
concerning the Lessee's liability (if any) or the effect of any adverse
determination upon the consolidated financial condition, business or
operations of the Lessee, if adversely determined, would materially and
adversely affect the consolidated financial condition, business or
operations of the Lessee, or (C) if adversely determined would adversely
affect the ability of the Lessee to perform its obligations under the
Lessee Documents;
(i) the Lessee has filed or caused to be filed all tax returns which
are required to be filed and has paid or caused to be paid all taxes shown
to be due and payable pursuant to such returns or pursuant to any
assessment received by the Lessee (other than assessments the payment of
which is being contested in good faith by the Lessee by appropriate
proceedings that do not involve any material danger of sale, forfeiture or
loss of the Aircraft or any part thereof), and the Lessee has no knowledge
of any related actual or proposed deficiency or additional assessment which
either in any case or in the aggregate would materially adversely affect
the Lessee's consolidated financial condition (other than, in any such
case, assessments, the payment of which is being contested in good faith
by the Lessee, as to which no representation is made concerning the
Lessee's liability (if any) or the effect of any adverse determination
upon the Lessee's consolidated financial condition);
(j) except for (A) the registration in the Owner Trustee's name of
the Aircraft pursuant to the Transportation Code to be accomplished by
filing with the FAA, of the FAA Bill of Sale, the Trust Agreement, the
Affidavits and the Application, (B) the filing with and, where appropriate,
recordation by the FAA pursuant to the Transportation Code of the
Indenture, the Indenture and Security Agreement Supplement covering the
Aircraft, the Lease and the Lease Supplement covering the Aircraft, (C) the
filing of the financing statements referred to in Sections 4.01(f) and
4.02(f) hereof and (D)(x) on the Certificate Closing Date, the taking of
possession by the Indenture Trustee of the Liquid Collateral and
maintaining possession by the Indenture Trustee thereof as contemplated in
Section 2.14(a) of the Indenture and (y) on the Delivery Date, the taking
of possession by the Indenture Trustee of the original counterpart of the
Lease and the Lease Supplement covering the Aircraft, no further action,
including any filing or recording of any document, is necessary or
advisable in order (i) to establish the Owner Trustee's title to and
interest in the Aircraft and the Lessor's Estate as against the Lessee and
any third parties, or (ii) to perfect the first security interest in and
mortgage Lien on the Trust Indenture Estate in favor of the Indenture
Trustee;
(k) on the Delivery Date, the Owner Trustee has received good and
marketable title to the Aircraft, free and clear of all Liens, except the
rights of the Lessee under the Lease and the Lease Supplement, the rights
of the Indenture Trustee under the Indenture and the beneficial interest of
the Owner Participant created by the Trust Agreement;
(l) the Lessee has heretofore delivered to the Owner Participant
true and correct copies of the Lessee's Annual Report on Form 10-K for the
fiscal year ended May 31, 1996 and its Quarterly Reports on Form 10-Q for
the fiscal quarters ended August 31, 1996, November 30, 1996 and February
28, 1997, and of the audited consolidated balance sheet of the Lessee for
the fiscal year ended May 31, 1996 and the unaudited consolidated balance
sheets of the Lessee as of August 31, 1996, November 30, 1996 and February
28, 1997, and the related consolidated statements of income, changes in
common stockholders' investment and cash flows for the fiscal year and
interim reporting periods ended on such dates, accompanied (except in the
case of such interim reporting periods) by a report thereon containing
opinions without qualification, except as therein noted, by Arthur Andersen
LLP, independent public accountants; said financial statements have been
prepared in accordance with generally accepted accounting principles
consistently applied and present fairly the financial position of the
Lessee as of such dates and the results of its operations and cash flows
for such periods and such Annual Report, Quarterly Reports and financial
statements did not, as of their respective dates of filing with the SEC,
contain any untrue statement of a material fact or omit a material fact
necessary to make the statements contained therein not misleading;
(m) with respect to ERISA:
(i) none of the Pension Plans (as hereinafter defined) nor their
related trusts have been terminated in a distress termination
pursuant to Section 4041(c) of ERISA or by the PBGC (as hereinafter
defined) pursuant to Section 4042 of ERISA, nor have any actions been
taken to so terminate any Pension Plan or related trust and neither
the Lessee nor any ERISA Affiliate (as hereinafter defined) has
incurred or could reasonably be expected to incur any material
liability with respect to a Pension Plan under Section 4062, 4063,
4064 or 4069 of ERISA;
(ii) there have been no "reportable events" (as such term is
defined in Section 4043(b) of ERISA) with respect to any Pension Plan
which have resulted or could reasonably be expected to result in any
material liability of the Lessee or any ERISA Affiliate;
(iii) no "accumulated funding deficiency" (as such term is defined
in Section 302 of ERISA or Section 412 of the Code) exists with
respect to any Pension Plan, whether or not waived, nor has any
request for a waiver under Section 412(d) of the Code been, or is
reasonably likely to be, filed with respect to any of the Pension
Plans;
(iv) neither the Lessee nor any ERISA Affiliate has failed to make
any contribution or payment to any Pension Plan which has resulted or
could reasonably be expected to result in the imposition of a Lien
under Section 302(f) of ERISA or Section 412(n) of the Code;
(v) all Pension Plans are in compliance in all material respects
with all applicable provisions of ERISA and the Code;
(vi) neither the Lessee nor any ERISA Affiliate has incurred or is
reasonably likely to incur any material withdrawal liability pursuant
to Section 4201 or 4204 of ERISA or any material liability under
Section 515 of ERISA;
(vii) to the best of the Lessee's knowledge, neither the Lessee
nor any ERISA Affiliate has engaged in a "prohibited transaction"
(within the meaning of Section 4975 of the Code or Section 406 of
ERISA) which could reasonably be expected to subject the Lessee to
the tax or penalties on prohibited transactions imposed by Section
4975 of the Code or Section 502 of ERISA; and
(viii) assuming the truth of the representations contained in
Section 7.09 hereof and compliance with Section 10.06 of the
Indenture, the execution and delivery of this Agreement and the other
Operative Agreements and the consummation of the transactions
contemplated hereby and thereby will not involve any transaction
which is prohibited by Section 406 of ERISA or in connection with
which a tax could be imposed pursuant to Section 4975 of the Code.
No part of the funds to be used by the Lessee in satisfaction of its
obligations under this Agreement or any other of the Operative
Agreements to which the Lessee is a party or to which the Lessee is
bound are the assets (within the meaning of ERISA and any applicable
rules and regulations) of any employee benefit plan subject to Title
I of ERISA, or any individual retirement account or an employee
benefit plan subject to Section 4975 of the Code.
As used in this Section 6.01(m), the term "Pension Plan" means an employee
pension benefit plan as defined in Section 3(2) of ERISA (other than a
multiemployer plan as defined in Section 4001(a)(3) of ERISA) which is
covered by Title IV of ERISA or subject to the minimum funding standards
under Section 412 of the Code and which is (or, solely for purposes of
clause (i) of this Section 6.01(m), within the preceding 5 calendar years
has been) maintained, or contributed to, by the Lessee or any ERISA
Affiliate; the term "PBGC" means Pension Benefit Guaranty Corporation and
any successor agency or instrumentality thereto; and the term "ERISA
Affiliate" means any entity which together with the Lessee would be treated
as a single employer under Section 414(b), (c), (m) or (o) of the Code;
(n) the Lessee is a Citizen of the United States;
(o) except for the filings referred to in Sections 4.01(f), 4.02(e)
and 4.02(f) hereof, no governmental approval of any kind is required of the
Owner Participant or for the Owner Participant's execution of or
performance under this Agreement or any agreement contemplated hereby by
reason of any fact or circumstance of the Lessee, the nature of the
Aircraft or the Lessee's proposed operations or use of the Aircraft;
(p) on the Delivery Date, all premiums with respect to the insurance
required to be provided by the Lessee on or prior to the Delivery Date
under Article 13 of the Lease have been paid by the Lessee;
(q) on the Delivery Date, all sales or use taxes relating to the
sale of the Aircraft by the Lessee to the Owner Trustee which are then or
were theretofore due shall have been paid;
(r) the Lessee is not in default under any mortgage, deed of trust,
indenture, lease or other instrument or agreement to which the Lessee is a
party or by which it or any of its Properties or assets may be bound, or in
violation of any applicable law, which default or violation would have a
material adverse effect on the financial condition, business or operations
of the Lessee or its ability to perform any of its obligations under the
Lessee Documents;
(s) no Default or Event of Default or Event of Loss or event, which
with the passage of time or if continued unremedied or unaltered would
constitute an Event of Loss, has occurred or exists;
(t) on the Delivery Date, the Aircraft will be in such condition so
as to enable the airworthiness certificate of such Aircraft to be in good
standing under the Transportation Code; the Aircraft will have been duly
certificated by the FAA as to type and airworthiness; there will be in
effect with respect to the Aircraft a current and valid airworthiness
certificate issued by the FAA pursuant to the Transportation Code; and
there is no fact known to the Lessee which materially adversely affects the
value, utility or condition of the Aircraft;
(u) neither the Lessee nor any subsidiary of the Lessee is an
"investment company" or a company "controlled by an investment company"
within the meaning of the Investment Company Act of 1940, as amended;
(v) on the Delivery Date, the Aircraft will, upon delivery, be fully
equipped to operate in commercial service and will comply with all
governmental requirements governing such service;
(w) on the Certificate Closing Date and the Delivery Date, the
Lessee shall not be in material default in the performance of any term or
condition of the Engine Warranty Assignment, the Modification Agreement and
the GTA; and
(x) there are no broker's or underwriter's fees payable on behalf of
the Lessee in connection with the transactions contemplated in the Operative
Agreements other than those of the Underwriters and First Chicago Leasing
Corporation referred to in Article 10 hereof.
Section 6.02. Offering by Lessee. The Lessee represents and
warrants that it has authorized no one to act on its behalf in connection with
the offer or sale of any interest in the Lessor's Estate or the Trust
Agreement other than First Chicago Leasing Corporation. Neither the Lessee
nor, based on representations of First Chicago Leasing Corporation, anyone
acting on its behalf has directly or indirectly offered any interest in the
Lessor's Estate or the Trust Agreement, or similar interests, for sale to, or
solicited any offer to acquire any of the same from, anyone other than the
Owner Participant and no more than 25 other accredited investors (as such term
is defined in Regulation D promulgated under the Securities Act of 1933, as
amended).
Section 6.03. Certain Covenants of Lessee. The Lessee covenants and
agrees with the Owner Participant, the Owner Trustee (in its individual
capacity and as Owner Trustee), the Pass Through Trustee (in its individual
capacity and as Pass Through Trustee) and the Indenture Trustee (in its
individual capacity and as Indenture Trustee) as follows:
(a) The Lessee will cause to be done, executed, acknowledged and
delivered at the Lessee's cost and expense all such further acts,
conveyances and assurances as the Owner Trustee, the Indenture Trustee, the
Pass Through Trustee or the Owner Participant shall reasonably require for
accomplishing the purposes of this Agreement, the Trust Agreement, the Tax
Indemnity Agreement, the Lease and the other Operative Agreements to which
it is a party. Without limiting the generality of this Section 6.03(a),
the Lessee will promptly take, or cause to be taken, at the Lessee's cost
and expense, such action with respect to the recording, filing,
re-recording and re-filing of the Indenture, each Indenture and Security
Agreement Supplement, the Lease, each Lease Supplement and any financing
statements or other instruments as may be necessary or as requested by the
Indenture Trustee and appropriate, to maintain the perfection of the first
security interest and the Lien created by the Indenture, and the Owner
Trustee's title to and interest in the Aircraft and the Lessor's Estate as
against the Lessee and any third parties or if the Lessee cannot take, or
cause to be taken, such action, will furnish to the Indenture Trustee and
the Owner Trustee timely notice of the necessity of such action, together
with such instruments, in execution form, and such other information as may
be required to enable either of them to take such action at the Lessee's
cost and expense in a timely manner.
(b) The Lessee shall maintain the certificates referred to in
Section 7.01 of the Lease and shall cause the Aircraft to remain duly
registered, in the name of the Owner Trustee, under the Transportation
Code; provided, however, that the Owner Participant, the Owner Trustee and
the Indenture Trustee agree that, so long as no Default or Event of Default
shall have occurred and be continuing, if, at any time after the eighth
anniversary of the Delivery Date, the Lessee has requested their consent to
the registration of the Aircraft in the name of the Owner Trustee (or, if
appropriate, in the name of the Lessee or a sublessee as a "lessee" or a
"sublessee"), at the Lessee's expense, in a country listed in Schedule III
hereto with which the United States then maintains normal diplomatic
relations, the Owner Participant, the Owner Trustee and the Indenture
Trustee upon receipt by each Owner Participant, the Owner Trustee and the
Indenture Trustee of the assurances and opinion described below, shall not
unreasonably withhold their consent to such change in registration (it
being agreed, without limitation, that the inability of the Lessee to
deliver such assurances and opinion shall constitute reasonable grounds to
withhold such consent).
As a condition to any change in the registration of the Aircraft,
each Owner Participant, the Owner Trustee in its individual and trust
capacities, and the Indenture Trustee shall have received, all at the Lessee's
cost and expense:
(i) assurances satisfactory to them:
(A) to the effect that the insurance provisions of the Lease have
been and will be complied with and are and shall be in full force and
effect upon such change of registry;
(B) that the Owner Trustee's right, title and interest in and to
the Aircraft is recognized and fully enforceable in the new
jurisdiction of registry and that the new jurisdiction of registry
will give effect to the title and registry of the Aircraft therein
substantially to the same extent as does the Government;
(C) that such new country of registry (x) would provide
substantially equivalent protection for the rights of owner
participants, lessors or lenders in similar transactions as provided
under United States law (except that, in the absence of restrictions
under the laws of such country on rights and remedies of lessors and
secured parties similar to those imposed by Sections 362 and 363 of
the Bankruptcy Code, rights and remedies similar to those available
under Section 1110 of the Bankruptcy Code shall not be required), and
(y)(i) if such change in registration is made at the request of the
Lessee or an Affiliate thereof, imposes maintenance standards at
least comparable to those of the FAA, and (ii) if such change in
registration is made in connection with a sublease permitted under
Section 7.02(a)(i) of the Lease, imposes maintenance standards in
conformity with those set forth in Section 7.02(a)(i) of the Lease;
(D) that import and export certificates and any exchange permits
necessary to allow all Rent and other payments provided for under the
Lease, if required, shall have been procured at the Lessee's own cost
and expense by the Lessee;
(E) that duties and tariffs, if applicable, shall have been paid
for by the Lessee;
(F) to the effect that the original indemnities (and any additional
indemnities for which the Lessee is then willing to enter into a
binding agreement to indemnify) in favor of the Owner Participant,
the Owner Trustee (in its individual capacity and as trustee under
the Trust Agreement), the Indenture Trustee (in its individual
capacity, and as trustee under the Indenture), the Pass Through
Trustee (in its individual capacity, and as trustee under the Pass
Through Agreement) and the other Indemnitees under this Agreement,
the Indenture, the Pass Through Agreement and (in the case of the
Owner Participant only) the Tax Indemnity Agreement, afford each such
party substantially the same protection as provided prior to such
change of registry and if the sublessee, if any, is a government or
governmental body, such sublessee shall have effectively waived any
rights to sovereign immunity;
(G) that such change will not result in the imposition of, or
increase in the amount of, any Tax for which the Lessee is not
required to indemnify the Owner Participant, the Indenture Trustee,
the Owner Trustee (or any successor, assign or Affiliate thereof) and
the Trust Estate pursuant to Article 8 hereof or for which the Lessee
has not agreed to indemnify such parties in a manner satisfactory to
such parties;
(H) of the payment by the Lessee of any reasonable fees and
expenses of the Owner Participant, the Owner Trustee, the Indenture
Trustee and the Pass Through Trustee in connection with such change
of registry, including any reasonable attorneys' fees and expenses;
(I) that the Lessee shall maintain the registration of the
Aircraft under the laws of such country unless and until the
registration of the Aircraft is changed as provided herein, and shall
cause to be done at all times all other acts (including, if
applicable, the filing, recording and delivery of any document or
instrument and the payment of any sum) necessary or, by reference to
prudent industry practice in such country, advisable in order to
create, preserve and protect the interests of the Lessor and the
Indenture Trustee as against the Lessee or any third parties in such
jurisdiction;
(J) as to the continuation of the Lien of the Indenture as a first
priority, duly perfected Lien on the Aircraft and the Trust Indenture
Estate, that all recordings and filings required to so perfect the
Lien of the Indenture have been duly effected, and that no Liens
(except Liens permitted under Section 6.01 of the Lease) shall arise
by reason of such registration; and
(K) that appropriate deregistration powers of attorney in favor of
the Owner Trustee and the Indenture Trustee have been executed and
delivered by the Lessee and any sublessee and, if necessary or
desirable for the effectiveness thereof, filed with the relevant
aeronautics authority;
(ii) a favorable opinion of counsel (reasonably satisfactory to the
Owner Trustee, the Indenture Trustee and the Owner Participant) in the new
jurisdiction of registry, addressed and reasonably satisfactory to such
parties in scope, form and substance, to the effect:
(A) that the terms (including, without limitation, the governing
law, service-of-process and jurisdictional-submission provisions
thereof) of the Lease and the Indenture are legal, valid, binding and
enforceable in such jurisdiction against the Lessee, any sublessee,
the Owner Trustee and the Indenture Trustee, respectively;
(B) that it is not necessary for the Owner Participant, the Owner
Trustee, the Indenture Trustee or the Pass Through Trustee to
register or qualify to do business or meet other requirements not
already met in such jurisdiction in connection with the registration
in the new jurisdiction (and the filing and/or recordation therein of
the Indenture or the Lease) and the exercise of any rights or
remedies with respect to the Aircraft pursuant to the Lease or the
Indenture or in order to maintain such registration and the Lien of
the Indenture;
(C) that the courts of such jurisdiction would provide
substantially equivalent protection to the Lessor, the Owner
Participant, the Pass Through Trustee and the Indenture Trustee as
provided under United States law (with the exception described in
paragraph (b)(i)(C)(x) of this Section 6.03) in respect of the
transactions contemplated hereby, including, without limitation, the
remedies provided in the Indenture and the Lease;
(D) that there is no tort liability of the beneficial owner,
record owner, lessor or mortgagee of an aircraft not in possession
thereof under the laws of such jurisdiction, other than such tort
liability which might have been imposed on such owner, lessor or
mortgagee under the laws of the United States or any state thereof
(it being understood that, in the event such latter opinion cannot be
given in a form satisfactory to the Owner Trustee, the Owner
Participant and the Indenture Trustee, such opinion shall be waived,
if insurance reasonably satisfactory to the Owner Participant, the
Indenture Trustee and the Owner Trustee, in its individual capacity,
is provided, at the Lessee's expense, to cover such risk and the
Lessee undertakes to keep such insurance in full force and effect);
(E) that the laws of such jurisdiction (i) will not impair the
rights of the Lessor in and to the Aircraft and (ii) (unless the
Lessee shall have agreed to provide insurance reasonably satisfactory
to the Indenture Trustee and the Owner Participant covering the risk
of requisition of use of the Aircraft by the government of registry
of the Aircraft) require fair compensation by the government of such
jurisdiction payable in currency freely convertible into United
States dollars for the loss of use of the Aircraft in the event of
such requisition;
(F) that the Owner Trustee's title to the Aircraft is recognized
and fully enforceable in such jurisdiction, that such jurisdiction
will give effect to the title of the Aircraft therein substantially
to the same extent as does the Government, and that the Lien of the
Indenture shall continue as a first priority, duly perfected lien on
the Aircraft;
(G) as to the continuation of the Lien of the Indenture as a first
priority, duly perfected Lien on the Aircraft;
(H) that the rights of the Lessor in and to the Aircraft will not
be impaired in such new jurisdiction of registry; and
(I) to such further effect with respect to such other matters as
any Owner Participant, the Owner Trustee or the Indenture Trustee may
reasonably request.
(c) The Lessee shall promptly file any reports, or furnish to the
Owner Trustee and the Owner Participant such information as may be required
to enable the Owner Trustee and the Owner Participant timely to file any
reports required to be filed by the Owner Trustee as the Lessor and the
Owner Participant under the Lease with any governmental authority.
(d) The Lessee will cause the Special Aviation Counsel to file, and
where appropriate record, on the Delivery Date, the FAA Bill of Sale, the
Lease, the Lease Supplement, the Trust Agreement, the Indenture and the
Indenture and Security Agreement Supplement. The following documents shall
be filed and, where appropriate, recorded on the Delivery Date with the
Aeronautics Authority in the following order of priority: first, the FAA
Bill of Sale, second, the Application, with the Trust Agreement and the
Affidavits, third, the Indenture with the Indenture and Security Agreement
Supplement attached thereto, and fourth, the Lease with the Lease
Supplement, the Indenture and the Indenture and Security Agreement
Supplement attached thereto.
(e) The Lessee will furnish to the Owner Participant, the Owner
Trustee and the Indenture Trustee annually after the execution of this
Agreement, by March 15 of each year, commencing with the year 1998, an
opinion, reasonably satisfactory to the Owner Participant and the Indenture
Trustee, of Special Aviation Counsel, or other counsel specified from time
to time by the Lessee acceptable to the Lessor and the Indenture Trustee:
(i) stating either (1) that in the opinion of such counsel such action has
been taken with respect to the recording, filing, re-recording and
re-filing of the Lease, the Indenture, the Trust Agreement, and any
supplements to any of them and any financing statements, continuation
statements or other instruments, and all other action has been taken, as is
necessary to maintain the Owner Trustee's title to and interest in the
Aircraft and the Lessor's Estate as against the Lessee and any third
parties and to maintain the perfection of the security interests created by
said documents and reciting the details of such action, or (2) that in the
opinion of such counsel no such action is necessary to maintain such title
or the perfection of such security interests; (ii) specifying all other
action which needs to be taken during the succeeding 14 months in order to
maintain such title and the perfection of such security interests (which
the Lessee agrees timely to take); and (iii) stating that the Owner Trustee
is the owner of legal title to the Aircraft, and the Aircraft is free and
clear of all Liens, except the security interest created by the Indenture
and such as are permitted by the Lease and the Indenture.
(f) The Lessee shall at all times maintain its corporate existence
except as permitted by Section 6.03(g) hereof and all of its rights,
privileges and franchises necessary in the normal conduct of its business,
except for any corporate right, privilege or franchise (i) that it
determines, in its business judgment, is no longer necessary or desirable
in the conduct of its business and (ii) the loss of which will not
materially adversely affect or diminish the rights of the Holders or any
Owner Participant or the ability of the Lessee to perform its obligations
under the Operative Agreements.
(g) The Lessee shall not enter into any merger or consolidation, or
convey, transfer or lease all or substantially all of its assets as an
entirety to any Person, unless the surviving corporation or Person which
acquires by conveyance, transfer or lease all or substantially all of the
assets of the Lessee as an entirety (i) is a domestic corporation organized
and existing under the laws of the United States or a political subdivision
thereof, (ii) is a Citizen of the United States, (iii) is a U.S. Air
Carrier, (iv) expressly assumes by an instrument in writing in form and
substance satisfactory to the Owner Participant, the Indenture Trustee and
the Owner Trustee all of the Lessee's obligations hereunder and under the
other Operative Agreements, and each other document contemplated hereby or
thereby and the Lessee delivers such instrument to the Indenture Trustee,
the Owner Participant and the Owner Trustee, (v) provides an opinion from
outside counsel to the Lessee which counsel shall be reasonably
satisfactory to the Owner Participant and the Indenture Trustee and which
opinion shall be reasonably satisfactory to the Owner Participant and the
Indenture Trustee, and an officer's certificate, each stating that such
merger, consolidation, conveyance, transfer or lease and the instrument
noted in clause (iv) above comply with this Section 6.03(g), that such
instrument is a legal, valid and binding obligation of, and is enforceable
against, such survivor or Person (except as such enforceability may be
limited by bankruptcy, insolvency, moratorium, reorganization or other
similar laws or equitable principles of general application to or affecting
the enforcement of creditors' rights generally), and that all conditions
precedent herein provided for relating to such transaction have been
complied with, and (vi) immediately after such merger, consolidation or
conveyance, transfer or lease, as the case may be, the surviving company is
in compliance with all of the terms and conditions of this Agreement and
the Lease and each other Operative Agreement and each other document
contemplated hereby or thereby; provided that no such merger, consolidation
or conveyance, transfer or lease shall be permitted if the same gives rise
to a Default not capable of cure within the applicable grace period
therefor or an Event of Default.
Upon any consolidation or merger, or any conveyance, transfer or
lease of all or substantially all of the assets of the Lessee and the
satisfaction of the conditions specified in this Section 6.03(g), the
successor corporation formed by such consolidation or into which the Lessee
is merged or the Person 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 Lessee under this Agreement and the Lease and each other
Operative Agreement and any other document contemplated hereby and thereby
to which the Lessee is a party with the same effect as if such successor
corporation had been named as the Lessee herein and therein. No such
conveyance, transfer or lease of all or substantially all of the assets of
the Lessee as an entirety shall have the effect of releasing the Lessee or
any successor corporation which shall theretofore have become the Lessee
hereunder in the manner prescribed in this Section 6.03(g) from its
liability hereunder or under the other Operative Agreements. Nothing
contained herein shall permit any lease, sublease, or other arrangement for
the use, operation or possession of the Aircraft except in compliance with
the applicable provisions of the Lease.
(h) The Lessee agrees to give prompt written notice to the Owner
Participant, the Owner Trustee and the Indenture Trustee of any change in
the address of its chief executive office (as such term is used in Section
9-103(3) of the Tennessee Uniform Commercial Code) or of any change in its
corporate name.
(i) The Lessee agrees to furnish to the Owner Participant, the
Lessor and the Indenture Trustee:
(A) as soon as available, but in any event within one hundred
twenty (120) days after the end of each fiscal year of the Lessee, a
consolidated balance sheet as of the end of such fiscal year, and the
related consolidated statements of income, common stockholders'
equity, retained earnings and cash flows of the Lessee for the fiscal
year then ended as prepared and certified by the Lessee's independent
certified public accountants, including their opinion;
(B) within sixty (60) days after the end of the first, second and
third quarterly accounting periods in each fiscal year of the Lessee,
a consolidated balance sheet of the Lessee prepared by it as of the
close of the accounting period then ended, together with the related
consolidated statements of income, retained earnings and cash flows
for such accounting period certified by the chief accounting officer
or a financial vice president of the Lessee;
(C) promptly upon their general transmission, copies of all
regular and periodic reports furnished by the Lessee to its
stockholders;
(D) promptly after filing with the SEC, copies of the Lessee's
Annual Reports on Form 10-K (including all corresponding annual
reports to shareholders), Quarterly Reports on Form 10-Q and, if
requested, any registration statement or prospectus filed by the
Lessee with any securities exchange or with the SEC;
(E) promptly upon (and in any event within five (5) Business Days
after) any officer of the Lessee obtaining knowledge of any condition
or event which constitutes a Default or an Event of Default, an
officer's certificate specifying the nature and period of existence
thereof and what action the Lessee has taken or is taking or proposes
to take with respect thereto;
(F) promptly, notice of all legal or arbitral proceedings, and of
all proceedings by or before any governmental or regulatory authority
or agency, and of any material development in respect of such legal
or other proceedings affecting the Lessee, which in each case
specified above, if adversely determined, would, in the Lessee's
reasonable judgment, materially impair the ability of the Lessee to
perform its obligations under the Operative Agreements or consummate
the transactions contemplated hereby and thereby; and
(G) from time to time, such other financial information as the
Lessor, any Owner Participant or the Indenture Trustee may reasonably
request.
Concurrently with the delivery of the financial statements referred
to in clause (A) above, the Lessee shall deliver to the Lessor, the Owner
Participant, the Indenture Trustee and the Pass Through Trustee a certificate
of the Lessee, signed by any one of the President, the Chief Financial
Officer, the General Counsel, the Treasurer or the principal accounting
officer of the Lessee, stating that the signer, or an officer reporting to
same, is familiar with the relevant terms of this Agreement and the Lease and
the signer has reviewed, or has caused to be made under such Person's
supervision a review, of the activities of the Lessee and that, to the best of
his or her knowledge, there does not exist any Default or any Event of Default
or if a Default or an Event of Default exists or did exist, specifying the
nature thereof, the period of existence thereof and what action the Lessee has
taken or proposes to take with respect thereto.
Section 6.04. Survival of Representations and Warranties. The
representations and warranties of the Lessee provided in Sections 6.01 and 6.02
hereof and in any other Operative Agreement shall survive the Closings
hereunder and the delivery of the Aircraft and the expiration or other
termination of this Agreement and the other Operative Agreements.
ARTICLE 7
OTHER PARTIES' REPRESENTATIONS, WARRANTIES AND COVENANTS
Section 7.01. Acquisitions and Offerings of Interests in Lessor's
Estate. Owner Trustee. The Owner Trustee represents and warrants, both in
its individual capacity and as trustee, that neither it nor anyone authorized
to act on its behalf (i) has directly or indirectly offered or sold or will
directly or indirectly offer or sell any interest in the Lessor's Estate, or
in any similar security relating to the Lessor's Estate, or in any security
the offering of which for purposes of the Securities Act of 1933, as amended,
would be deemed to be part of the same offering as the offering of the
aforementioned securities to, or solicited any offer to acquire any of the
same from, any Person (other than the Initial Owner Participant and the Owner
Participant) and (ii) except as contemplated in Section 8.02(a) of the
Indenture, shall own Certificates.
Section 7.02. Citizenship. (a) Generally. The Owner Trustee, in
its individual capacity and as Trustee, represents and warrants that it is or
will be a Citizen of the United States on the Delivery Date. If the Owner
Trustee in its individual capacity does not comply with the requirements of
this Section 7.02, the Owner Trustee and the Indenture Trustee hereby agree
that a Default or an Event of Default shall not be deemed to have occurred and
be continuing under the Lease due to non-compliance by the Lessee with the
registration requirements in the Lease occasioned by the noncompliance of the
Owner Trustee.
(b) Owner Trustee. The Owner Trustee, in its individual capacity,
covenants that if at any time on or after the Delivery Date it shall cease to
be a Citizen of the United States, it will resign immediately as the Owner
Trustee if such citizenship is necessary under the Transportation Code as in
effect at such time or, if it is not necessary under the Transportation Code
as in effect at such time, if it is informed in writing by the Lessee, the
Indenture Trustee or any Owner Participant that such lack of United States
citizenship would have any adverse effect on the Lessee, the Indenture
Trustee, the Holders or any Owner Participant. The Owner Trustee, in its
individual capacity, further covenants that if at any time it appears
reasonably probable that it will cease to be a Citizen of the United States
based on information that is (i) known to a Responsible Officer or (ii)
generally known to the public, it will promptly so notify, to the extent
permitted by law, all parties to this Agreement.
Section 7.03. Concerning Assignment of Interests of Owner
Participant. In connection with the transfer by an Owner Participant to a
transferee Owner Participant, the Owner Trustee, the Lessee and the Indenture
Trustee shall be entitled to receive an opinion or opinions of counsel
reasonably satisfactory to each of them to the effect that the obligations of
such transferee under the Operative Agreements are legal, valid, binding and
enforceable in accordance with their terms, subject to customary exceptions,
and that such transfer will not be required to be registered under applicable
securities laws.
Section 7.04. Representations, Covenants and Warranties of SSB and
the Owner Trustee. (a) In addition to and without limiting its other
representations and warranties provided for in this Article 7, SSB represents
and warrants, in its individual capacity with respect to items (i), (ii),
(iii)(A), (iv), (v), (vi) and (vii) below, and as the Owner Trustee with
respect to items (iii)(B) and (iv) on the date hereof and as of the
Certificate Closing Date and the Delivery Date that:
(i) it is a national banking association duly organized and validly
existing in good standing under the laws of the United States of America
with its principal place of business and chief executive office (as such
terms are used in Article 9 of the Uniform Commercial Code) at 750 Main
Street, Hartford, Connecticut 06103, Attention: Corporate Trust Department
and has full corporate power and authority, in its individual capacity or
(assuming the Trust Agreement has been duly authorized, executed and
delivered by the Initial Owner Participant) as the Owner Trustee, as the
case may be, to carry on its business as now conducted, and to execute,
deliver and perform this Agreement and the Operative Agreements to which it
is or is to be a party;
(ii) the execution, delivery and performance by SSB, either in its
individual capacity or as the Owner Trustee, as the case may be, of this
Agreement and the Operative Agreements to which it is or is to be party
have been duly authorized by all necessary corporate action on its part,
and do not contravene its articles of association or by-laws; each of this
Agreement and the other Operative Agreements to which it is or is to be a
party has been duly authorized, and has been duly executed and delivered
or, in the case of the Operative Agreements identified in Section 4.02(c)
hereof, will on the Delivery Date be duly executed and delivered by SSB,
either in its individual capacity or as the Owner Trustee, as the case may
be, and neither the execution and delivery thereof nor SSB's performance
of or compliance with any of the terms and provisions thereof will violate
any Federal or Connecticut law or regulation governing SSB's banking or
trust powers;
(iii) (A) assuming due authorization, execution and delivery by each
other party thereto, each of the Operative Agreements to which it is or is
to be party when duly executed and delivered will, to the extent each such
document is entered into by SSB in its individual capacity, constitute the
legal, valid and binding obligation of SSB in its individual capacity
enforceable against it in such capacity in accordance with its respective
terms, except as such enforceability may be limited by bankruptcy,
insolvency, reorganization or other similar laws or equitable principles of
general application to or affecting the enforcement of creditors' rights
(regardless of whether enforceability is considered in a proceeding in
equity or at law), and the performance by SSB in its individual capacity of
any of its obligations thereunder does not contravene any lease, regulation
or contractual restriction binding on SSB in its individual capacity;
(B) assuming due authorization, execution and delivery by each other
party thereto, each of the Operative Agreements to which it is or is to be
party when duly executed and delivered will, to the extent each such
document is entered into by the Owner Trustee in its trust capacity,
constitute the legal, valid and binding obligation of the Owner Trustee
enforceable against it in such capacity in accordance with its respective
terms, except as such enforceability may be limited by bankruptcy,
insolvency, reorganization or other similar laws or equitable principles of
general application to or affecting the enforcement of creditors' rights
(regardless of whether enforceability is considered in a proceeding in
equity or at law), and the performance by the Owner Trustee of any of its
obligations thereunder does not contravene any lease, regulation or
contractual restriction binding on the Owner Trustee;
(iv) there are no pending or, to its knowledge, threatened actions or
proceedings against SSB before any court or administrative agency which
would materially and adversely affect the ability of SSB, either in its
individual capacity or as the Owner Trustee, as the case may be, to perform
its obligations under the Operative Agreements to which it is or is to be
party;
(v) it shall give the Lessee, the Indenture Trustee and the Owner
Participant at least thirty (30) days' prior written notice in the event of
any change in its chief executive office or name;
(vi) neither the execution and delivery by it, either in its
individual capacity or as the Owner Trustee, as the case may be, of any of
the Operative Agreements to which it is or is to be a party, requires on
the part of SSB in its individual capacity or any of its Affiliates the
consent or approval of or the giving of notice to, the registration with,
or the taking of any other action in respect of, any Federal or Connecticut
governmental authority or agency governing its banking or trust powers; and
(vii) on the Certificate Closing Date, the proceeds arising from the
issuance and sale of the Certificates shall be free of Lessor's Liens
attributable to SSB in its individual capacity and on the Delivery Date the
Owner Trustee shall be holding whatever title to the Aircraft as was
conveyed to it by the Lessee, the Aircraft shall be free of Lessor's Liens
attributable to SSB in its individual capacity and SSB in its individual
capacity is a Citizen of the United States.
(b) Lessor's Liens. SSB, in its individual capacity, further
represents, warrants and covenants that there are no Lessor's Liens
attributable to it in its individual capacity and that there will not be any
such Lessor's Liens on the Certificate Closing Date or the Delivery Date. The
Owner Trustee, in its trust capacity, and at the cost and expense of the
Lessee, covenants that it will in its trust capacity promptly, and in any
event within 30 days after the same shall first become known to it, take such
action as may be necessary to discharge duly any Lessor's Liens attributable
to it in its trust capacity. SSB, in its individual capacity, covenants and
agrees that it will at its own expense take such action as may be necessary to
duly discharge and satisfy in full, promptly, and in any event within 30 days
after the same shall first become known to it, any Lessor's Liens attributable
to it in its individual capacity which may arise at any time after the date of
this Agreement.
(c) Indemnity for Lessor's Liens. SSB, in its individual capacity,
agrees to indemnify and hold harmless the Lessee, the Indenture Trustee, any
Owner Participant and the Pass Through Trustee and the Owner Trustee from and
against any loss, cost, expense or damage which may be suffered by the Lessee,
the Indenture Trustee, any Owner Participant, the Pass Through Trustee or the
Owner Trustee as a result of the failure of SSB to discharge and satisfy any
Lessor's Liens attributable to it in its individual capacity, as described in
Section 7.04(b) hereof.
(e) Actions With Respect to Lessor's Estate, Etc. Neither SSB, in
its individual capacity, nor the Owner Trustee will take any action to subject
the Lessor's Estate or the trust established by the Trust Agreement, as
debtor, to the reorganization or liquidation provisions of the Bankruptcy Code
or any other applicable bankruptcy or insolvency statute.
Section 7.05. Representations, Warranties and Covenants of the
Indenture Trustee. (a) The Indenture Trustee in its individual capacity (other
than as the Pass Through Trustee) represents on the date hereof and as of the
Certificate Closing Date and the Delivery Date as follows:
(i) it is a national banking association duly organized and validly
existing in good standing under the laws of the United States of America
and has the power and authority to enter into and perform its obligations
under the Indenture, this Agreement and the other Operative Agreements to
which it is a party and to authenticate the Certificates to be delivered on
the Certificate Closing Date;
(ii) the Indenture and this Agreement and the other Operative
Agreements to which it is or is to be a party, and the authentication of
the Certificates to be delivered on the Certificate Closing Date, have been
duly authorized by all necessary corporate action on its part, and neither
the execution and delivery thereof nor its performance of any of the terms
and provisions thereof will violate any Federal or Utah law or regulation
relating to its banking or trust powers or contravene or result in any
breach of, or constitute any default under, its articles of association or
by-laws;
(iii) each of the Indenture and this Agreement, and the other
Operative Agreements to which it is or is to be a party, has been duly
executed and delivered or, in the case of the Operative Agreements
identified in Section 4.02(c) hereof, will on the Delivery Date be executed
and delivered by it and, assuming that each such agreement is the legal,
valid and binding obligation of each other party thereto, is (or will be,
as the case may be), the legal, valid and binding obligation of the
Indenture Trustee, enforceable against the Indenture Trustee in accordance
with its terms except as such enforceability may be limited by bankruptcy,
insolvency, reorganization or other similar laws or equitable principles of
general application to or affecting the enforcement of creditors' rights
(regardless of whether enforceability is considered in a proceeding in
equity or at law);
(iv) neither the execution and delivery by it of the Indenture and
this Agreement and the other Operative Agreements to which it is or is to
be a party, nor the performance by it of any of the transactions
contemplated hereby or thereby, requires the consent or approval of, the
giving of notice to, the registration with, or the taking of any other
action in respect of, any Federal or state governmental authority or agency
governing its banking and trust powers; and
(v) on the Certificate Closing Date, the Indenture Trustee holds
the Liquid Collateral on behalf of the Owner Trustee and on the Delivery
Date, the Indenture Trustee will hold the original counterparts of the
Lease and the Lease Supplement.
(b) Indenture Trustee's Liens. The Indenture Trustee, in its
individual capacity, further represents, warrants and covenants that there are
no Indenture Trustee's Liens attributable to it in its individual capacity and
that there will not be any Indenture Trustee's Liens on the Certificate
Closing Date or, as at and following the Delivery Date, the Aircraft. The
Indenture Trustee, in its individual capacity, covenants and agrees that it
will at its own expense take such action as may be necessary to duly discharge
and satisfy in full, promptly, and in any event within 30 days, after the same
shall first become known to it, any Indenture Trustee's Liens.
(c) Indemnity for Indenture Trustee's Liens. The Indenture Trustee,
in its individual capacity, agrees to indemnify and hold harmless the Lessee,
any Owner Participant, the Owner Trustee and the Pass Through Trustee from and
against any loss, cost, expense or damage which may be suffered by the Lessee,
the Indenture Trustee, any Owner Participant, the Owner Trustee or the Pass
Through Trustee as a result of the failure of the Indenture Trustee to
discharge and satisfy any Indenture Trustee's Liens attributable to it in its
individual capacity, as described in Section 7.05(b) hereof.
Section 7.06. Indenture Trustee's Notice of Default. The Indenture
Trustee agrees to give the Owner Participant notice of any Payment Default
promptly upon a Responsible Officer of the Indenture Trustee having actual
knowledge thereof.
Section 7.07. Releases from Indenture. The Indenture Trustee
covenants and agrees, for the benefit of the Lessee and the Owner Participant,
to execute and deliver the instruments of release from the Lien of the
Indenture which it is required to execute and deliver in accordance with the
provisions of Article XIV of the Indenture, and the Owner Participant agrees,
for the benefit of the Lessee, to cause the Owner Trustee to request the
Indenture Trustee to execute and deliver such instruments of release.
Section 7.08. Covenant of Quiet Enjoyment. Each of the Indenture
Trustee, the Pass Through Trustee and the Owner Trustee covenants and agrees
as to itself only that, so long as no Event of Default under the Lease has
occurred and is continuing, neither the Owner Trustee, the Indenture Trustee
or the Pass Through Trustee, as the case may be, nor any Person lawfully
claiming through the Owner Trustee, the Indenture Trustee or the Pass Through
Trustee, as the case may be, shall interfere with the Lessee's right to
quietly enjoy the Aircraft during the Term without hindrance or disturbance by
the Owner Trustee, the Indenture Trustee or the Pass Through Trustee, as the
case may be, provided, however, that the Owner Trustee shall not be liable for
any act or omission of the Indenture Trustee or the Pass Through Trustee or
any other Person claiming through the Indenture Trustee or the Pass Through
Trustee.
Section 7.09. Pass Through Trustee's Representations and Warranties.
The Pass Through Trustee, in its individual capacity (except with respect to
clause (iii) below), represents and warrants as of the date hereof (except as
otherwise provided), as of the Pass Through Closing Date, the Certificate
Closing Date and the Delivery Date that:
(i) it is a national banking association duly organized and validly
existing in good standing under the laws of the United States of America
and has the power and authority to enter into and perform its obligations
under the Pass Through Agreement, the Series Supplements, the Intercreditor
Agreement and this Agreement and to execute and authenticate the Pass
Through Certificates to be delivered on the Pass Through Closing Date;
(ii) the execution, delivery and performance of this Agreement, the
Pass Through Agreement and the Series Supplements and the performance of its
obligations hereunder and thereunder (including the execution and
authentication of the Pass Through Certificates to be delivered on the Pass
Through Closing Date) have been fully authorized by all necessary corporate
action on its part, and, subject to (A) the registration of the issuance
and sale of the Pass Through Certificates under the Securities Act, (B)
compliance with any applicable state securities laws and (C) the
qualification of the Pass Through Agreement under the Trust Indenture Act,
neither the execution and delivery thereof nor its performance of any of
the terms and provisions thereof will violate any Federal or Utah law or
regulation relating to its banking or trust powers or contravene or result
in any breach of, or constitute any default under its articles of
association, or bylaws or the provisions of any indenture, mortgage,
contract or other agreement to which it is a party or by which it or its
properties may be bound or affected; and
(iii) each of this Agreement and the Pass Through Agreement has been,
and as of the Pass Through Closing Date the Series Supplements will be, duly
executed and delivered by it (in its individual and trust capacities) and,
assuming that each such agreement is the legal, valid and binding
obligation of each other party thereto, is or will be, as the case may be,
the legal, valid and binding obligation of the Pass Through Trustee (in its
individual and trust capacities), enforceable in accordance with its
respective terms except as limited by bankruptcy, insolvency, moratorium,
reorganization or other similar laws or equitable principles of general
application to or affecting the enforcement of creditors' rights generally
(regardless of whether such enforceability is considered in a proceeding in
equity or at law).
Section 7.10. Survival of Representations, Warranties and Covenants.
The representations, warranties and covenants of the Owner Trustee (in its
individual or trust capacity), the Pass Through Trustee (in its individual or
trust capacity), the Indenture Trustee (in its individual or trust capacity)
and the Subordination Agent (in its individual or trust capacity) provided for
in this Article 7, and their respective obligations under any and all of them,
shall survive the Closings, the delivery of the Aircraft and the expiration or
other termination of this Agreement, and the other Operative Agreements.
Section 7.11. Lessee's Assumption of the Certificates. (a) Subject
to compliance by the Lessee with all of its obligations under the Operative
Agreements, each of the Owner Participants, the Owner Trustee, the Indenture
Trustee, the Pass Through Trustee and the Lessee covenants and agrees that if
the Lessee elects to terminate the Lease and to purchase the Aircraft pursuant
to Section 4.02(a)(A), (D) or (E) of the Lease, and so long as no Default or
Event of Default shall have occurred and be continuing then, upon compliance
with the applicable provisions of said Section 4.02(a) of the Lease, the Owner
Trustee will transfer to the Lessee, without recourse or warranty (except as
to the absence of Lessor's Liens) but subject to the Lien of the Indenture,
all of the Owner Trustee's right, title and interest in and to the Aircraft,
and if the Lessee, in connection with such purchase, elects pursuant to
Section 4.02(a)(A), (D) or (E) of the Lease to assume the obligations of the
Owner Trustee to the Indenture Trustee and the Holders under the Indenture,
the Certificates and hereunder, then the Owner Trustee shall so notify the
Indenture Trustee (such notice to be given at least 30 and not more than 60
days prior to the effective date of such assumption), and each of the parties
shall execute and deliver appropriate documentation permitting the Lessee to
assume such obligations on the basis of full recourse to the Lessee,
maintaining for the benefit of the Holders the security interest in the
Aircraft created by the Indenture, and upon compliance with the provisions of
this Section 7.11, such documentation shall become effective and the Owner
Participants and the Owner Trustee shall be released from all obligations in
respect of the Certificates, the Indenture, this Agreement and all other
Operative Agreements, except any obligations which shall have arisen (or with
respect to events which shall have occurred) prior to such assumption, and
take all such other actions, at the Lessee's expense, as are reasonably
necessary to permit such assumption by the Lessee.
(b) In connection with such assumption:
(i) the Lessee shall execute and deliver an instrument satisfactory
in form and substance to the Indenture Trustee (A) pursuant to which the
Lessee irrevocably and unconditionally assumes and undertakes, with full
recourse to the Lessee, to pay, satisfy and discharge when and as due (at
the stated maturity thereof, by acceleration or otherwise) the principal
of, Make-Whole Premium, if any, interest and all other sums owing on all
Outstanding Certificates (or on the Lessee's substituted obligations) in
accordance with their terms and to punctually perform and observe all of
the covenants and obligations hereunder and under the Indenture and the
Certificates (as the same may be amended in connection with such
assumption) to be performed or observed by the Owner Trustee and (B) which
contains amendments to the Indenture, in form and substance satisfactory to
the Indenture Trustee and the Holders, that incorporate therein such
provisions from the Lease and this Agreement as may be appropriate,
including, without limitation, events of default substantially identical in
scope and effect to those set forth in the Lease and covenants
substantially identical to the covenants of the Lessee hereunder and under
the Lease;
(ii) the instrument referred to in paragraph (i) of this Section
7.11(b), any Uniform Commercial Code financing statements relating thereto,
and any other documents which shall be necessary (or reasonably requested
by the Indenture Trustee) to establish the Lessee's title to and interest
in the Aircraft or to reflect the substitution of the Lessee for the Owner
Trustee under the Operative Agreements or to continue the perfection of the
security interests in the Aircraft and the other rights, Property and
interests included in the Trust Indenture Estate for the benefit of the
Holders (or the Lessee's substituted obligations) shall be filed in such
form, manner and places as are necessary or, in the reasonable opinion of
the Indenture Trustee, advisable for such purpose;
(iii) the Indenture Trustee shall have received an insurance report
dated the effective date of such assumption of an independent insurance
broker and certificates of insurance, each in form and substance
satisfactory to the Indenture Trustee, as to the due compliance as of the
effective date of such assumption with the terms of Article 13 of the Lease
(as it relates to the Indenture Trustee) relating to the insurance with
respect to the Aircraft;
(iv) the Indenture Trustee shall have received evidence that as of
the effectiveness of the assignment on the date of such assumption the
Aircraft is free and clear of all Liens other than the Lien of the
Indenture and other Permitted Liens;
(v) the Indenture Trustee shall have received a certificate from the
Lessee that no Event of Default shall have occurred and be continuing as of
the effective date of such assumption; and
(vi) the Indenture Trustee shall have received (A) from counsel for
the Lessee (who may be the Lessee's General Counsel) a legal opinion, in
form and substance satisfactory to the Indenture Trustee (w) with respect
to the compliance of the assumption contemplated hereby with the terms,
provisions and conditions hereof, (x) with respect to the due
authorization, execution, delivery, validity and enforceability of the
instrument referred to in paragraph (i) of this Section 7.11(b), (y) with
respect to the continued perfection of the first and prior Lien and security
interest in the Aircraft for the benefit of the Holders of the Certificates
(or the Lessee's substituted obligations) referred to in paragraph (ii) of
this Section 7.11(b) and (z) with respect to the continued availability of
the benefits of Section 1110 of the Bankruptcy Code to the Indenture
Trustee for the benefit of the Holders with respect to the Aircraft after
giving effect to such assumption, (B) from counsel to the Indenture Trustee
and Special Aviation Counsel, a legal opinion comparable to the respective
opinions delivered on the Delivery Date with such changes therein as may be
appropriate in light of such assumption, and (C) in the case of each opinion
described in clause (A) or (B) above, covering such additional matters as
the Indenture Trustee shall reasonably request.
(c) The Lessee shall pay all reasonable expenses (including
reasonable fees and expenses of counsel) of the Indenture Trustee, the Owner
Trustee, the Pass Through Trustee and the Owner Participants in connection
with such assumption.
Section 7.12. Indebtedness of Owner Trustee. So long as the
Indenture is in effect, the Owner Trustee, not in its individual capacity, but
solely as trustee under the Trust Agreement, shall not incur any indebtedness
for borrowed money except as expressly contemplated herein or in any other
Operative Agreement (excluding the Tax Indemnity Agreement) and shall not
engage in any business or other activity other than the transactions
contemplated herein or in any other Operative Agreement (excluding the Tax
Indemnity Agreement) and all necessary or appropriate activity related thereto.
Section 7.13. Reserved.
Section 7.14. Subordination Agent's Representations, Warranties and
Covenants. (a) Representations and Warranties. The Subordination Agent
represents
Subordination Agent represents and warrants as of the date hereof (except as
otherwise provided), as of the Pass Through Closing Date, the Certificate
Closing Date and the Delivery Date that:
(i) it is a national banking association duly organized and validly
existing in good standing under the laws of the United States of America
and has the corporate power and authority to enter into and perform its
obligations under this Agreement, the Liquidity Facilities and the
Intercreditor Agreement;
(ii) the execution, delivery and performance of this Agreement, each
of the Liquidity Facilities and the Intercreditor Agreement and the
performance of its obligations hereunder and thereunder have been fully
authorized by all necessary corporate action on its part, and, neither the
execution and delivery thereof nor its performance of any of the terms and
provisions thereof will violate any Federal or Utah law or regulation
relating to its banking or trust powers or contravene or result in any
breach of, or constitute any default under its articles of association, or
bylaws or the provisions of any indenture, mortgage, contract or other
agreement to which it is a party or by which it or its properties may be
bound or affected;
(iii) each of this Agreement, the Liquidity Facilities and the
Intercreditor Agreement has been duly executed and delivered by it and,
assuming that each such agreement is the legal, valid and binding
obligation of each other party thereto, is or will be, as the case may be,
the legal, valid and binding obligation of the Subordination Agent,
enforceable in accordance with its respective terms except as limited by
bankruptcy, insolvency, moratorium, reorganization or other similar laws or
equitable principles of general application to or affecting the enforcement
of creditors' rights generally (regardless of whether such enforceability
is considered in a proceeding in equity or at law);
(iv) there are no Taxes payable by the Subordination Agent imposed by
the State of Utah or any political subdivision or taxing authority thereof
in connection with the execution, delivery and performance by the
Subordination Agent of this Agreement, any of the Liquidity Facilities or
the Intercreditor Agreement (other than franchise or other taxes based on
or measured by any fees or compensation received by the Subordination Agent
for services rendered in connection with the transactions contemplated by
the Intercreditor Agreement or any of the Liquidity Facilities), and there
are no Taxes payable by the Subordination Agent imposed by the State of
Utah or any political subdivision thereof in connection with the
acquisition, possession or ownership by the Subordination Agent of any of
the Certificates other than franchise or other taxes based on or measured
by any fees or compensation received by the Subordination Agent for
services rendered in connection with the transactions contemplated by the
Intercreditor Agreement or any of the Liquidity Facilities);
(v) there are no pending or threatened actions or proceedings
against the Subordination Agent before any court or administrative agency
which individually or in the aggregate, if determined adversely to it,
would materially adversely affect the ability of the Subordination Agent to
perform its obligations under this Agreement, the Intercreditor Agreement
or any Liquidity Facility;
(vi) the Subordination Agent has not directly or indirectly offered
any Certificate for sale to any Person or solicited any offer to acquire
any Certificates from any Person, nor has the Subordination Agent
authorized anyone to act on its behalf to offer directly or indirectly any
Certificate for sale to any Person, or to solicit any offer to acquire any
Certificate from any Person; and the Subordination Agent is not in default
under any Liquidity Facility; and
(vii) the Subordination Agent is not directly or indirectly
controlling, controlled by or under common control with the Owner Trustee,
any Underwriter or the Lessee.
(b) Covenants. (i) The Subordination Agent agrees not to amend any
Liquidity Facility without the consent of the Lessee (so long as no Event of
Default shall have occurred and be continuing) and of the Owner Participant
(such consents not to be unreasonably withheld).
(ii) In connection with the deposit in the applicable Cash Account of
amounts drawn pursuant to any Downgrade Drawing under a Liquidity Facility, the
Subordination Agent agrees, so long as no Event of Default shall have occurred
and be continuing, to pay to the Lessee promptly following each Regular
Distribution Date any Investment Earnings on the amount so deposited which
remain after application of such Investment Earnings pursuant to Section 2.06
of such Liquidity Facility to the interest payable on such Downgrade Drawing
under Section 3.07 of such Liquidity Facility. Capitalized terms used in this
Section shall have the meanings specified in the Intercreditor Agreement.
ARTICLE 8
TAXES
Section 8.01. Lessee's Obligation to Pay Taxes. (a) Generally. The
Lessee agrees promptly to pay when due, and to indemnify and hold each
Indemnitee harmless from all license, recording, documentary, registration and
other fees and all taxes (including, without limitation, income, gross
receipts, sales, rental, use, value added, property (tangible and intangible),
ad valorem, excise and stamp taxes), fees, levies, imposts, recording duties,
duties, charges, assessments or withholdings of any nature whatsoever,
together with any assessments, penalties, fines, additions to tax or interest
thereon (individually, a "Tax," and collectively called "Taxes"), however
imposed or asserted (whether imposed upon any Indemnitee, the Lessee, all or
any part of the Aircraft, Airframe, any Engine or any Part or the Lessor's
Estate, the Trust Indenture Estate, Rent, the Certificates or otherwise in
connection therewith), by any Federal, state or local government or taxing
authority in the United States, or by any government or taxing authority of a
foreign country or of any political subdivision or taxing authority thereof or
by a territory or possession of the United States or an international taxing
authority relating to or measured by:
(i) the construction, mortgaging, financing, refinancing, purchase,
acceptance, rejection, delivery, nondelivery, transport, location, ownership,
registration, reregistration, deregistration, insuring, assembly, possession,
repossession, operation, use, non-use, condition, maintenance, repair,
improvement, conversion, sale, return, abandonment, preparation, installation,
storage, redelivery, replacement, manufacture, leasing, subleasing,
sub-subleasing, modification, alteration, rebuilding, importation, transfer of
title, transfer of registration, exportation or other application or
disposition of, or the imposition of any Lien (or the incurrence of any
liability to refund or pay over any amount as a result of any Lien) on, the
Aircraft, the Airframe, any Engine or any Part or any interest therein;
(ii) amounts payable under the Operative Agreements;
(iii) the Property, or the income or other proceeds received with
respect to the Property attributable to the transactions contemplated by
the Operative Agreements, held by the Owner Trustee under the Trust
Agreement or after an Event of Default under the Lease, or by the Indenture
Trustee under the Indenture;
(iv) otherwise with respect to any Operative Agreement, any interest
therein or by reason of the transactions described in or contemplated by the
Operative Agreements;
(v) the principal or interest or other amounts payable with respect
to the Certificates;
(vi) the Pass Through Certificates or the Certificates or the
issuance, sale, acquisition, reoptimization or refinancing thereof or the
beneficial interests in the Trust Estate or the Trust Indenture Estate or
the creation thereof under the Trust Agreement or the Indenture, or the
security interest created or perfected thereby or by any filing thereof;
(vii) [reserved];
(viii) the Aircraft, the Airframe, any Engine or any Part; or
(ix) the rentals (including Basic Rent, Renewal Rent and
Supplemental Rent), receipts or earnings arising from the Operative
Agreements.
(b) Exceptions. The indemnity provided for in Section 8.01(a) shall
not extend to any of the following:
(i) With respect to an Indemnitee, Taxes based upon, measured by or
with respect to the net or gross income, items of tax preference or minimum
tax or excess profits, receipts, value-added taxes, capital, franchise, net
worth (whether denominated income, excise, capital stock, or doing
business taxes) or other similarly-based taxes (other than sales, use,
transfer, rental, ad valorem, stamp, property, or similar taxes) ("Income
Taxes"), provided, however, that this clause (i) shall not exclude from the
indemnity described in Section 8.01(a) above any such Income Taxes to the
extent such taxes are imposed by any jurisdiction in which the Indemnitee
would not be subject to such taxes but for, or would be subject to such
taxes solely as a result of, (x) the operation, registration, location,
presence, or use of the Aircraft, Airframe, any Engine or any Part thereof,
in such jurisdiction or (y) the place of incorporation or principal office
or the activities of the Lessee or any sublessee in such jurisdiction (it
being understood that (A) any such indemnity would be payable only to the
extent of the net harm incurred by the Indemnitee from such Income Taxes,
taking into account any incremental current Tax benefit in another tax
jurisdiction resulting from payment of such Income Taxes and (B) this
sentence would require indemnification in a jurisdiction in which the
Indemnitee is already subject to an Income Tax (an "Existing Income Tax")
only if an event set forth in Clause (x) or (y) of this sentence causes the
Indemnitee to be subject to an Income Tax in that jurisdiction (a "New
Income Tax") other than an Existing Income Tax, and such New Income Tax
would have been imposed even if the activities contemplated by the
Operative Agreements were the Indemnitee's sole nexus to the jurisdiction);
provided, further, that the provisions of this paragraph (b)(i) relating to
Income Taxes shall not exclude from the indemnity described in Section
8.01(a) hereof any Income Taxes for which the Lessee would be required to
indemnify an Indemnitee (x) so that any payment under the Operative
Agreements, otherwise required to be made on an After-Tax Basis, is made on
an After-Tax Basis or (y) pursuant to the last sentence of Section 8.02,
8.05, 9.02 or 9.05 of this Agreement;
(ii) [Reserved];
(iii) Taxes imposed with respect to the Aircraft and arising out of or
measured by acts, omissions, events or periods (or any combination of the
foregoing) which occur after the later of (A) the payment in full of all
amounts payable by the Lessee pursuant to and in accordance with the
Operative Agreements, or the earlier discharge in full of the Lessee's
payment obligations under and in accordance with the Lease and the other
Operative Agreements, and (B) the earliest of (x) the expiration of the
Term of the Lease and return of the Aircraft in accordance with Article 12
of the Lease, (y) the termination of the Lease in accordance with the
applicable provisions of the Lease and return of the Aircraft in accordance
with the Lease, or (z) the termination of the Lease in accordance with the
applicable provisions of the Lease and the transfer of all right, title and
interest in the Aircraft to the Lessee pursuant to its exercise of any of
its purchase options set forth in Section 4.02(a) of the Lease, provided
that this exclusion (iii) shall not apply in respect of any payment made
after the dates set forth in clauses (A) and (B) above unless such payment
is made with respect to any event or circumstance occurring on, with or
prior to such return or transfer or period prior to such return or
transfer, or Taxes incurred in connection with the exercise of any remedies
pursuant to Article 17 of the Lease following the occurrence of an Event
of Default;
(iv) As to the Owner Trustee, Taxes imposed against the Owner Trustee
upon or with respect to any fees for services rendered in its capacity as
Owner Trustee under the Trust Agreement or, as to the Indenture Trustee,
Taxes imposed against the Indenture Trustee upon or with respect to any
fees received by it for services rendered in its capacity as Indenture
Trustee under the Indenture;
(v) Taxes imposed on an Indemnitee that would not have been imposed
but for the willful misconduct or gross negligence of such Indemnitee
(other than gross negligence or willful misconduct not actually committed
by but instead imputed to such Indemnitee by reason of such Indemnitee's
participation in the transactions contemplated by the Operative Agreements)
or the breach by such Indemnitee of: (i) in the case of an Indemnitee other
than the Owner Participant, any representation, warranty or covenant
contained in the Operative Agreements or any document delivered in
connection therewith and (ii) in the case of the Owner Participant, the
representations or covenants in Sections 7.02(a), (c); 7.03(a)(i), (ii),
(iii), (iv), (vii), (ix); and 7.03(b), (c), (d), (e) of this Agreement (in
either case unless attributable to a breach of representation, warranty or
covenant of the Lessee);
(vi) Taxes imposed on, and not collected by withholding from
payments of Rent, the Owner Trustee or the Owner Participant or any
successor, assign or Affiliate thereof which became payable by reason of
any voluntary or involuntary transfer or disposition by such Indemnitee
subsequent to the Delivery Date, including revocation of the Trust, of any
interest in some or all of the Aircraft, Airframe, Engines or Parts thereof
or its interest in the Lessor's Estate or a disposition in connection with
a bankruptcy or similar proceedings involving either the Lessor or the
Owner Participant other than (A) transfers resulting from a loss,
substitution or modification of the Aircraft, Engines or any Part, (B) any
transfer of the Aircraft, Engines or any Part (in each case other than at
Fair Market Value) to the Lessee or other person in possession thereof, (C)
transfers attributable to an Event of Default or (D) a transfer pursuant to
the Lessee's exercise of its rights under Section 10.01 of the Lease; the
parties agree to cooperate to minimize any such Taxes covered by this
provision;
(vii) Taxes imposed on the Owner Participant for which the Lessee is
obligated to indemnify the Owner Participant pursuant to the Tax Indemnity
Agreement;
(viii) Taxes imposed on a successor, assign or other transferee of the
Owner Participant or the Owner Trustee that is not a U.S. Person or of any
other original Indemnitee (including, without limitation, a transferee
which is a new lending office of an original Indemnitee) which on the
Certificate Closing Date is an Indemnitee (for purposes of this clause
(viii), an "original Indemnitee") or such original Indemnitee to the extent
that such Taxes exceed the amount of Taxes that would have been imposed and
would have been indemnifiable pursuant to Section 8.01(a) hereof had there
not been a succession, assignment or other transfer by such original
Indemnitee of any such interest of such Indemnitee in the Aircraft or any
Part, any interest in or under any Operative Agreement, or any proceeds
thereunder (it being understood that for purposes of determining the amount
of indemnification that would have been due to such original Indemnitee
with respect to a net income Tax, it shall be assumed that such original
Indemnitee would be subject to taxation on its income at the highest
marginal statutory rate applicable to it), provided, however, that the
exclusion provided by this clause (viii) shall not apply in the case of a
succession, transfer or disposition (A) while an Event of Default under the
Lease has occurred and is continuing at the time of such transfer or
disposition, (B) to the extent necessary to make payments with respect to
such Taxes on an After-Tax Basis, (C) to the extent such Taxes are directly
attributable to the failure of the Lessee to take administrative actions as
have been reasonably requested of it in writing in a timely manner and
which will result in no after-tax cost or expense to the Lessee or (D) in
the case of the Owner Participant or the Lessor, to any Tax other than an
Income Tax;
(ix) [Reserved];
(x) Any Taxes which have been included in the Purchase Price and
which have been paid to the applicable taxing authorities;
(xi) Any Taxes which would not have been imposed but for a Lessor's
Lien or an Indenture Trustee's Lien;
(xii) Taxes imposed on the Owner Participant or any person who is a
"disqualified person", within the meaning of Section 4975(e)(2) of the
Code, or a "party in interest", within the meaning of Section 3(14) of
ERISA, by virtue of such person's relationship to such Owner Participant as
the result of any prohibited transaction, within the meaning of Section 406
of ERISA and Section 4975(c)(1) of the Code, occurring with respect to the
purchase or holding of any Loan Certificate (A) in connection with which
purchase or holding such Owner Participant or any Affiliate thereof is
acting as the investment manager, advisor or discretionary trustee and is
making or directing such purchase or holding (other than in the capacity of
a custodian, directed trustee or other similar nondiscretionary capacity),
or (B) by an employee benefit plan, within the meaning of Section 3(3) of
ERISA, or a plan subject to Section 4975 of the Code with respect to which
such Owner Participant (or any Affiliate thereof) is the "plan sponsor"
within the meaning of Section 3(16)(B) of ERISA; and
(xiii) Taxes imposed on the Lessor or on any Owner Participant by any
jurisdiction that would have been imposed on the Lessor or such Owner
Participant for activities in such jurisdiction unrelated to the
transactions contemplated by the Operative Agreements to the extent imposed
on such unrelated activities.
(c) Withholding. The Pass Through Trustee shall withhold any Taxes
required to be withheld on payments to any holder of a Pass Through
Certificate who is a Non-U.S. Person except to the extent that such a holder
of a Pass Through Certificate has furnished evidence to the Pass Through
Trustee sufficient under applicable law to entitle such holder of a Pass
Through Certificate to any exemption from withholding on interest claimed by
such holder of a Pass Through Certificate. The Indenture Trustee shall
withhold any Taxes required to be withheld on any payment to a Holder pursuant
to Section 5.09 of the Indenture. If the Indenture Trustee or the Pass
Through Trustee fails to withhold a Tax required to be withheld with respect
to any Holder of a Certificate or any holder of a Pass Through Certificate or
any claim is otherwise asserted by a taxing authority against the Owner
Trustee or Owner Participant for or on account of any amount required to be
withheld from a payment in respect of a Certificate, the Lessee will indemnify
(after taking into account any payments made by a Holder to or for the benefit
of the Owner Participant or the Owner Trustee pursuant to the preceding
sentence) the Owner Trustee and the Owner Participant (without regard to the
exclusions set forth in Section 8.01(b) hereof) on an After-Tax Basis against
any Taxes required to be withheld and any interest, penalties and additions to
tax with respect thereto, along with any other costs (including attorneys'
fees) incurred in connection with any such claim. The Indenture Trustee or
the Pass Through Trustee, as the case may be, in its individual capacity (and
without recourse to the Trust Indenture Estate), shall indemnify the Lessee on
an After-Tax Basis for any payment the Lessee shall have made pursuant to the
preceding sentence.
Section 8.02. After-Tax Basis. The amount which the Lessee shall be
required to pay with respect to any Tax indemnified against under Section 8.01
shall be an amount sufficient to restore the Indemnitee, on an After-Tax
Basis, to the same position such party would have been in had such Tax not
been incurred, provided that the calculation of any additional amounts owing
to any Indemnitee as a result of the Lessee's obligation to indemnify on an
After-Tax Basis shall be made without regard to the exclusions set forth in
Section 8.01(b). If any Indemnitee actually realizes a tax benefit by reason
of the payment of any Tax paid or indemnified against by the Lessee, such
Indemnitee shall promptly pay to the Lessee, to the extent such tax benefit was
not previously taken into account in computing such payment, but not before the
Lessee shall have made all payments then due to such Indemnitee under this
Agreement, the Tax Indemnity Agreement and any other Operative Agreement, an
amount equal to the lesser of (x) the sum of such tax benefit plus any other
tax benefit actually realized by such Indemnitee that would not have been
realized but for any payment made by such Indemnitee pursuant to this sentence
and not already paid to the Lessee, and (y) the amount of the payment made
under Section 8.01 hereof and this Section 8.02 by the Lessee to such
Indemnitee plus the amount of any other payments by the Lessee to such
Indemnitee theretofore required to be made under this Section 8.02 and
Sections 8.01 and 8.05 hereof (and the excess, if any, of the amount described
in clause (x) above over the amount described in clause (y) above shall be
carried forward and applied to reduce pro tanto any subsequent obligations of
the Lessee to make payments to such Indemnitee pursuant to Section 8.01
hereof); provided, however, that notwithstanding the foregoing portions of
this sentence, such Indemnitee shall not be obligated to make any payment to
the Lessee pursuant to this sentence as long as an Event of Default shall have
occurred and be continuing under the Lease. The Lessee shall reimburse on an
After-Tax Basis such Indemnitee (and without regard to Section 8.01(b) hereof,
except for clause (v) thereof) for any payment of a tax benefit pursuant to
the preceding sentence (or a tax benefit otherwise taken into account in
calculating the Lessee's indemnity obligation hereunder) to the extent that
such tax benefit is subsequently disallowed or reduced (including the
expiration of any tax credit carryovers or carrybacks of such Indemnitee that
would not otherwise have expired).
Section 8.03. Time of Payment. Any amount payable to an Indemnitee
pursuant to this Article 8 shall be paid promptly, but in any event within 30
days after receipt of a written demand therefor from such Indemnitee
accompanied by a written statement describing in reasonable detail the basis
for such indemnity and the computation of the amount so payable, provided that
in the case of amounts which are being contested by the Lessee in good faith
or by the Indemnitee in either case pursuant to Section 8.04 hereof, such
amount shall be payable within 30 days after the time such contest is finally
resolved.
Section 8.04. Contests. If a written claim is made against any
Indemnitee for Taxes with respect to which the Lessee is liable for a payment
or indemnity hereunder, such Indemnitee shall promptly (but in any event
within 30 days of receipt thereof) give the Lessee notice in writing of such
claim and shall furnish the Lessee with copies of any written requests for
information sent to such Indemnitee (and not the Lessee) from any taxing
authority to the extent relating to such Taxes with respect to which the
Lessee may be required to indemnify hereunder and with respect to which it
would be necessary or beneficial to have information provided by the Lessee;
provided, however, that the failure of an Indemnitee to give such notice or
furnish such copy shall not terminate any of the rights of such Indemnitee
under this Article 8, except to the extent that the Lessee's contest rights
have been materially and adversely impaired by the failure to provide such
notice or copy. The Lessee may, at its option, contest in its own name or, if
required by law, require the Indemnitee to contest in good faith, with due
diligence and at the Lessee's expense, if timely requested in writing by the
Lessee, the validity, applicability or amount of such Taxes by:
(i) resisting payment thereof if lawful and practicable or not
paying the same except under protest if protest is necessary and proper in
each case so long as non-payment will not result in a material risk of the
sale, forfeiture or loss of, or the creation of a Lien other than a
Lessor's Lien on the Aircraft, Airframe or any Engine or any risk of
criminal liability; or
(ii) if the payment be made, using reasonable efforts to obtain a
refund thereof in appropriate administrative and judicial proceedings.
Notwithstanding the foregoing, the Lessee shall not be permitted or entitled
to contest any such Tax in its own name unless the Tax is reflected in a
report or a return of the Lessee or raised in an audit or other proceeding of
the Lessee and the Lessee is allowed to directly contest such Tax under
applicable law of the taxing jurisdiction provided, that if the Lessee is so
permitted under applicable law to contest a Tax asserted against the Lessee
and the same or similar Tax is also asserted against the Indemnitee, each of
the Lessee and such Indemnitee shall conduct its contest in its own name and
the Lessee and such Indemnitee will cooperate in a reasonable manner with
respect to the respective contests of such Tax.
If the Indemnitee, after reasonable discussion with the Lessee and
consideration in good faith of any suggestion made by the Lessee as to the
method of pursuing such contest, elects to conduct the contest, such
Indemnitee shall control the contest and shall determine the manner in which
to contest such Taxes and shall periodically or upon the Lessee's request
advise the Lessee of the progress of such contest; provided, however, that the
Lessee shall have the right to be consulted in good faith with respect to any
contest of claims subject to indemnification hereunder, including governmental
and judicial conferences and the right to be consulted in good faith regarding
the relevant portions of all related submissions to any governmental or other
authority, provided, however, that the Lessee shall be permitted to
participate in any such contest only (x) with respect to issues that can be
separated on audit from any Taxes for which the Lessee is not required to
indemnify the Indemnitee hereunder, and (y) if the Indemnitee shall have
determined that in its judgment, exercised in its sole discretion, neither
such participation nor the separation of issues will adversely affect the
Indemnitee. The Indemnitee will not settle a contest that results in a final
determination without consent of the Lessee, unless the Indemnitee waives its
right to indemnification with respect to such contest and any related contest.
Notwithstanding the preceding sentences of this Section 8.04, such Indemnitee
shall not be required to take or continue any action unless the Lessee shall
have (i) agreed in writing to pay and shall pay the Indemnitee on a current
basis and on an After-Tax Basis the after-tax cost of all reasonable fees and
expenses (including reasonable attorneys' fees and accountants' fees) which
such Indemnitee may incur as a result of contesting such Taxes, (ii) made all
payments and indemnities (other than contested payments and indemnities) then
due to the Indemnitee hereunder or with respect to any of the transactions
contemplated by or under the Operative Agreements and (iii) acknowledged in
writing the Lessee's obligation to such Indemnitee pursuant to this Agreement
to the extent that the contest is not successful, unless it is reasonably
clear from the resolution of the contest that an exclusion set forth in
Section 8.01(b) hereof applies. In no event shall such Indemnitee be required
or the Lessee be permitted to contest pursuant to this Section 8.04 the
imposition of any Tax for which the Lessee is obligated to indemnify any
Indemnitee hereunder unless (i) such Indemnitee shall have received, at the
Lessee's expense, an opinion of its tax counsel, such counsel to be reasonably
satisfactory to the Lessee ("Tax Counsel"), to the effect that there exists a
reasonable basis for contesting such claim, (ii) such Indemnitee (and, if such
Indemnitee is not the Owner Participant, the Owner Participant and such
Indemnitee) shall have determined that such contest will not result in any
material risk of loss, sale or forfeiture of, or the creation of a Lien (other
than Lessor's Liens) on, the Aircraft or any part thereof or interest thereon
or in a risk of criminal liability, or adversely affect the Trust Indenture
Estate, (iii) if a Payment Default, Bankruptcy Default or an Event of Default
shall have occurred and be continuing, the Lessee shall have provided security
for its obligations hereunder reasonably satisfactory to the Indemnitee, (iv)
if such contest shall be conducted in a manner requiring payment of the claim
in advance, the Lessee shall have advanced sufficient funds, on an interest
free basis, to make the payment required, and agreed to indemnify the
Indemnitee against any additional net adverse tax consequences on an After-Tax
Basis to such Indemnitee of such advance, (v) the issue shall not be the same
as an issue previously contested hereunder and decided adversely, unless the
Indemnitee shall have received at the Lessee's sole expense, a written
opinion, in form and substance reasonably satisfactory to such Indemnitee, of
Tax Counsel to the effect that the applicable circumstances or law has changed
and that in light thereof, there is substantial authority for contesting such
claim and (vi) the amount of the indemnity payments the Lessee would be
required to make with respect to such adjustment, when aggregated with similar
adjustments that could be raised in other taxable years of such Indemnitee
exceeds $50,000; provided, that in the event that such Indemnitee is not
required under this paragraph to contest any Tax liability for which the
Lessee is obligated to indemnify any Indemnitee, the Lessee may contest such
Tax liability in the name of the Lessee, if such contest by the Lessee (x) is
permitted by law, (y) is conducted entirely at the expense of Lessee and in a
manner that will not result in any unindemnified cost, Tax or risk to the
Indemnitee and (z) satisfies the condition of clause (ii) of this sentence.
The Lessee may appeal or require the Indemnitee to appeal any judicial
decision provided the foregoing requirements of this Section 8.04 are met and
the Indemnitee shall have received, at the Lessee's expense, an opinion of Tax
Counsel, to the effect that there is substantial authority for such appeal.
Nothing contained in this Section 8.04 shall require any Indemnitee to
contest or continue to contest, or permit Lessee to contest, a claim which such
Indemnitee would otherwise be required to contest pursuant to this Section
8.04, if such Indemnitee shall waive payment by Lessee of any amount that
might otherwise be payable by Lessee under this Article 8 in connection with
such claim.
Section 8.05. Refunds. Upon receipt by an Indemnitee of a refund of
all or any part of any Taxes which the Lessee shall have paid for such
Indemnitee or for which the Lessee shall have reimbursed or indemnified such
Indemnitee, and provided there shall not have occurred and be continuing any
Payment Default, Bankruptcy Default or Event of Default by the Lessee
hereunder or under the Lease (in which case payment shall not be made to the
Lessee until such Payment Default, Bankruptcy Default or Event of Default
shall have been cured), such Indemnitee shall pay to the Lessee an amount
equal to the amount of such refund less (x) any expenses not previously
reimbursed, (y) all payments then due to such Indemnitee under this Article
8 and (z) Taxes imposed with respect to the accrual or receipt thereof,
including interest received attributable thereto, plus any tax benefit
actually realized by such Indemnitee as a result of any payment by such
Indemnitee made pursuant to this sentence; provided, however, that such amount
shall not be payable (a) before such time as the Lessee shall have made all
payments or indemnities then due and payable to such Indemnitee under this
Article 8 and (b) to the extent that the amount of such payment would exceed
(i) the amount of all prior payments by the Lessee to such Indemnitee pursuant
to this Article 8 less (ii) the amount of all prior payments by such
Indemnitee to the Lessee pursuant to this Article 8.
Any subsequent loss of such refund or tax benefit shall be treated as
a Tax subject to indemnification under the provisions of this Article 8 (in
the case of any such tax benefit, without regard to Section 8.01(b) hereof).
Section 8.06. Lessee's Reports. In case any report or return is
required to be made with respect to any Taxes against which the Lessee is or
may be obligated to indemnify the Indemnitees under this Article 8, the Lessee
shall make such report or return, except for any such report or return that
the Indemnitee has notified the Lessee that it intends to file, in such manner
as will show the ownership of the Aircraft in the Owner Trustee and shall send
a copy of the applicable portions of such report or return to the Indemnitee
and the Owner Trustee or will notify the Indemnitee of such requirement and
make such report or return in such manner as shall be satisfactory to such
Indemnitee and the Owner Trustee. The Lessee will provide such information
reasonably available to the Lessee as the Indemnitee may reasonably require
from the Lessee to enable the Indemnitee to fulfill its tax filing
requirements with respect to the transactions contemplated by the Operative
Agreements (without duplication of the requirements of Section 3 of the Tax
Indemnity Agreement) and any audit information request arising from any such
filing. The Indemnitee will provide such information reasonably available to
it as the Lessee may reasonably require from such Indemnitee to enable the
Lessee to fulfill its tax filing requirements with respect to the transactions
contemplated by the Operative Agreements and any audit information request
arising from such filing; provided that in no event shall any Indemnitee be
required to provide copies of any of its tax returns or other confidential
information. The Lessee shall hold the Indemnitee harmless on an After-Tax
Basis from and against any liabilities, including penalties, additions to tax,
fines and interest, imposed upon or incurred by such Indemnitee to the extent
directly attributable to any insufficiency or inaccuracy in any return,
statement, or report prepared by the Lessee or information supplied by the
Lessee, or directly attributable to the Lessee's failure to supply reasonably
available information to such Indemnitee as required by this Section 8.06.
Section 8.07. Survival of Obligations. The representations,
warranties, indemnities and agreements of the Lessee provided for in this
Article 8 and the Lessee's obligations under any and all of them shall survive
the expiration or other termination of the Operative Agreements.
Section 8.08. Payment of Taxes. With respect to any Tax otherwise
indemnifiable hereunder by the Lessee and applicable to the Aircraft,
Airframe, any Engine or Parts, to the extent permitted by the applicable
federal, state, local or foreign law, the Lessee shall pay such tax directly
to the relevant Taxing authority and file any returns or reports required with
respect thereto to the extent legally entitled to do so in its own name;
provided, however, that the Lessee shall not make any statements or take any
action which would indicate that the Lessee or any Person other than the Owner
Trustee or Owner Participant is the owner of the Aircraft, the Airframe, any
Engine or any Part or which would otherwise be inconsistent with the terms of
the Lease or the Tax Indemnity Agreement and the position thereunder of the
Owner Trustee and the Owner Participant. Copies of such returns or reports,
together with evidence of payment of any tax due, shall be sent by the Lessee
to the Owner Participant within thirty (30) days after the date of each
payment by the Lessee of any Tax.
Section 8.09. Reimbursements by Indemnitees Generally. To the
extent the Lessee is required to pay or withhold any Tax imposed on or with
respect to an Indemnitee in respect of the transactions contemplated by the
Operative Agreements, which Tax is not otherwise the responsibility of the
Lessee under the Operative Agreements, or any other written agreements between
the Lessee and such Indemnitee, then such Indemnitee shall pay to the Lessee
within 30 days of the Lessee's demand therefor an amount which equals the
amount actually paid by the Lessee with respect to such Taxes.
ARTICLE 9
GENERAL INDEMNITY
Section 9.01. Generally. (a) The Lessee agrees to indemnify each
Indemnitee against and agrees to protect, defend, save and keep harmless each
Indemnitee from any and all liabilities, obligations, losses, damages
(including if, as a result of an Indenture Event of Default described in
Section 7.01(a)(i) of the Indenture, the Indenture Trustee shall have sold all
or any portion of the Indenture Estate and the proceeds thereof were less than
an amount equal to accrued and unpaid Basic Rent on the date of sale plus the
Stipulated Loss Value as of such date, damages equal to such shortfall
together with interest thereon to the extent permitted by law at the Debt Rate
until such shortfall is paid in full), penalties, claims, actions, suits,
costs, disbursements and expenses (including legal fees and expenses and all
costs and expenses relating to amendments, supplements, adjustments, consents,
refinancings and waivers under the Operative Agreements except as otherwise
provided in Section 10.01(c)(i)) of every kind and nature (whether or not any
of the transactions contemplated by this Agreement are consummated)
(individually, an "Expense," collectively, "Expenses"), which may be imposed
on, incurred or suffered by or asserted against any Indemnitee, in any way
relating to, based on or arising out of:
(i) this Agreement, the Lease, the Indenture, the Trust Agreement,
the Intercreditor Agreement, the Liquidity Facilities, the Pass Through
Agreement, the Bills of Sale or any other Operative Agreement or any other
document entered into in connection herewith or any sublease or transfer or
any transactions contemplated hereby or thereby;
(ii) the operation, possession, ownership, use, non-use, maintenance,
storage, delivery, non-delivery, control, testing, overhaul or repair of
the Aircraft, Airframe, or any Engine or any engine used in connection with
the Airframe, or any part thereof by the Lessee, any sublessee or any other
Person whatsoever, whether or not such operation, possession, ownership,
use, non-use, maintenance, storage, delivery, non-delivery, control,
testing, overhaul or repair is in compliance with the terms of the Lease,
including without limitation, claims for death, personal injury or property
damage or other loss or harm to any Person whatsoever and claims relating
to any laws, rules or regulations;
(iii) the manufacture, design, purchase, condition, repair,
modification, airworthiness, return, lease, sale, acceptance, rejection,
servicing, rebuilding, registration, alteration, merchantability,
substitution, replacement, fitness for use, transfer or sublease of any
Airframe, Engine, or Part under the Lease, the GTA or the Engine Warranty
Assignment or other transfer of use or possession, or other disposition of
the Aircraft, the Airframe, any Engine or any Part, latent or other defects
whether or not discoverable, strict tort liability, and any claims for
patent, trademark or copyright infringement;
(iv) any breach of or failure to perform or observe, or any other
non-compliance with, any condition, covenant or agreement to be performed,
or other obligations of the Lessee under any of the Operative Agreements,
or the falsity or inaccuracy of any representation or warranty of the
Lessee in any of the Operative Agreements (other than representations and
warranties in the Tax Indemnity Agreement);
(v) the Collateral Account and the Liquid Collateral;
(vi) the enforcement of the terms of the Operative Agreements and the
administration of the Trust Indenture Estate; and
(vii) the offer, issuance, sale or delivery of any Certificate or any
Pass Through Certificate, or any refunding or refinancing thereof, or
interest in the Lessor's Estate or the Trust Agreement or any similar
interest or in any way relating to or arising out of the Trust Agreement
and the Lessor's Estate, the Indenture or the Trust Indenture Estate
(including, without limitation, any claim arising out of the Securities Act
of 1933, as amended, the Securities Exchange Act of 1934, as amended, or
any other federal or state statute, law or regulation, or at common law or
otherwise relating to securities), or the action or inaction of the Owner
Trustee or Indenture Trustee as trustees, in the manner contemplated by
this Agreement, the Indenture, the Indenture and Security Agreement
Supplement or the Trust Agreement and in the case of the Owner Participant,
its obligations arising under Section 6.01 of the Trust Agreement.
The foregoing indemnity by the Lessee is intended to include and cover, but is
not limited to, any Expense to which the Indemnitees may be subject as a
result of their respective ownership or leasing of any interest in or holding
of any Lien on the Aircraft, Airframe, any Engine or Part during the Term,
whether or not in the Lessee's possession or control, insofar as such Expense
relates to any activity or event whatsoever involving such item while it is
under lease to the Lessee (or after termination of the Lease in connection
with the exercise of remedies thereunder to the extent that such Expense is
attributable to the transactions contemplated hereby and by the other
Operative Agreements), and such Expense does not fall within any of the
exceptions listed in Section 9.01(b) hereof.
(b) Exceptions. The indemnity provided for in Section 9.01(a) shall
not extend to any Expense of any Indemnitee:
(i) to the extent attributable to the willful misconduct or gross
negligence of such Indemnitee;
(ii) in respect of the Aircraft to the extent attributable to acts
or events which occur after the Aircraft is no longer part of the Lessor's
Estate or leased under the Lease or, if the Aircraft remains a part of the
Lessor's Estate, after the expiration of the Term (other than pursuant to
Article 17 of the Lease, in which case the indemnity provided in Section
9.01(a) hereof shall survive for so long as Lessor or the Indenture Trustee
shall be entitled to exercise remedies under such Article 17), or to acts
or events which occur after return of possession of the Aircraft by the
Lessee in accordance with the provisions of the Lease but in any such case
only to the extent not fairly attributable to acts or omissions of the
Lessee prior to expiration of the Term, including without limitation the
Lessee's failure to fully discharge all of its obligations under the Lease
or the other Operative Agreements;
(iii) which is a Tax, whether or not the Lessee is required to
indemnify therefor pursuant to Article 8 hereof or pursuant to the Tax
Indemnity Agreement;
(iv) which is a cost or expense expressly required to be paid by any
Owner Participant or its permitted transferees (and not by the Lessee)
pursuant to this Agreement or any other Operative Agreement;
(v) to the extent that such Expenses would not have been incurred by
such Indemnitee if such Indemnitee had not been in breach of its
representations or warranties, or had not defaulted in the observance and
performance of the terms and provisions required to be observed and
performed by it, in this Agreement, the Engine Warranty Assignment, the
Lease, the Indenture, the Trust Agreement or any other Operative Agreement
to which it is a party unless such breach or default shall be a result of
the breach or default of any of the foregoing by the Lessee or another
Indemnitee;
(vi) [Reserved];
(vii) in the case of any Owner Participant, Lessor's Liens to the
extent attributable to such Owner Participant; in the case of SSB, Lessor's
Liens to the extent attributable to SSB; and in the case of the Indenture
Trustee, Indenture Trustee's Liens;
(viii) in the case of any Owner Participant or the Owner Trustee, to
the extent attributable to the offer or sale by such Indemnitee after the
Delivery Date of any interest in the Aircraft, the Lessor's Estate or the
Trust Agreement or any similar interest (including an offer or sale
resulting from bankruptcy or other proceedings for the relief of debtors in
which such Indemnitee is the debtor), unless in each case such offer or
sale shall occur (w) in connection with a Refinancing, (x) during a period
when an Event of Default has occurred and is continuing, (y) during a
period when an Event of Loss has occurred or (z) in connection with the
termination of the Lease or action or direction of the Lessee pursuant to
Section 4.02 of the Lease or Article 10 of the Lease; or
(ix) in the case of any Owner Participant or any person who is a
"disqualified person", within the meaning of Section 4975(e)(2) of the
Code, or a "party in interest", within the meaning of Section 3(14) of
ERISA, by virtue of such person's relationship to such Owner Participant,
as the result of any prohibited transaction, within the meaning of Section
406 of ERISA or Section 4975(c)(1) of the Code, occurring with respect to
the purchase or holding of any Loan Certificate (or any funded
participation therein) (i) over which purchase or holding such Owner
Participant or any Affiliate thereof (other than in the capacity of a
directed trustee or custodian or similar nondiscretionary capacity) has
discretion or control, or (ii) by an employee benefit plan, within the
meaning of Section 3(3) of ERISA, or individual retirement account or plan
subject to Section 4975 of the Code with respect to which such Owner
Participant (or any Affiliate thereof) is a "plan sponsor", within the
meaning of Section 3(16)(B) of ERISA.
Section 9.02. After-Tax Basis. The amount which the Lessee shall be
required to pay with respect to any Expense indemnified against under Section
9.01 shall be an amount sufficient to restore the Indemnitee, on an After-Tax
Basis, to the same position such party would have been in had such Expense not
been incurred. If any Indemnitee actually realizes a permanent Tax benefit by
reason of the payment of such Expense paid or indemnified against by the
Lessee which was not considered in the computation thereof, such Indemnitee
shall promptly pay to the Lessee, but not before the Lessee shall have made
all payments theretofore due such Indemnitee under this Agreement, the Tax
Indemnity Agreement and any other Operative Agreement, an amount equal to the
lesser of (x) the sum of such Tax benefit plus any other permanent Tax benefit
actually realized by such Indemnitee as the result of any payment made by such
Indemnitee pursuant to this sentence and (y) the amount of such payment
pursuant to this Section 9.02 by the Lessee to such Indemnitee plus the amount
of any other payments by the Lessee to such Indemnitee theretofore made
pursuant to this Section 9.02 less the amount of any payments by such
Indemnitee to the Lessee theretofore made pursuant to this Section 9.02 (and
the excess, if any, of the amount described in clause (x) above over the
amount described in clause (y) above shall be carried forward and applied to
reduce pro tanto any subsequent obligations of the Lessee to make payments to
such Indemnitee pursuant to this Section 9.02), it being intended that no
Indemnitee should realize a net Tax benefit pursuant to this Section 9.02
unless the Lessee shall first have been made whole for any payments by it to
such Indemnitee pursuant to this Section 9.02; provided, however, that
notwithstanding the foregoing portions of this sentence, such Indemnitee shall
not be obligated to make any payment to the Lessee pursuant to this sentence
so long as any Payment Default, Bankruptcy Default or Event of Default shall
have occurred and be continuing. Any Taxes that are imposed on any Indemnitee
as a result of the disallowance or reduction of such Tax benefit referred to
in the next preceding sentence in a taxable year subsequent to the year of
allowance and utilization by such Indemnitee (including the expiration of any
tax credit carryovers or carrybacks of such Indemnitee that would not
otherwise have expired) shall be indemnifiable pursuant to the provisions of
Section 8.01 hereof (without regard to Section 8.01(b)(i), (iii) or (viii)
hereof).
Section 9.03. Subrogation. Upon the payment in full of any indemnity
pursuant to this Article 9 by the Lessee (but not earlier), the Lessee shall be
subrogated to any right of the Indemnitee, other than with respect to any of
such Indemnitee's insurance policies or in connection with any indemnity claim
the Person indemnified may have against any other Indemnitee in respect of the
matter against which such indemnity has been made.
Section 9.04. Notice and Payment. Each Indemnitee and the Lessee
shall give prompt written notice one to the other of any liability of which
such party has knowledge for which the Lessee is, or may be, liable under this
Article 9; provided, however, that failure to give such notice shall not
terminate any of the rights of the Indemnitees under this Article 9, except
(with respect to such Indemnitee) to the extent that the Lessee has been
materially prejudiced by the failure to provide such notice. Unless otherwise
provided in the Operative Agreements, any amount payable to an Indemnitee
pursuant to this Article 9 shall be paid within 30 days after receipt of a
written demand therefor from such Indemnitee accompanied by a written statement
describing in reasonable detail the basis for such indemnity and the
computation of the amount so payable.
Section 9.05. Refunds. If any Indemnitee shall obtain a recovery of
all or any part of any amount which the Lessee shall have paid to such
Indemnitee or for which the Lessee shall have reimbursed such Indemnitee under
this Article 9, and provided there shall not have occurred a Payment Default,
Bankruptcy Default or an Event of Default (in which case payment shall not be
made to the Lessee until such Payment Default, Bankruptcy Default or Event of
Default shall have been cured) such Indemnitee shall pay to the Lessee, within
ten (10) Business Days of receipt thereof by such Indemnitee, the amount of
any such recovery, including interest received with respect to the recovery,
net of any Taxes paid or payable as a result of the receipt of the recovery
and interest, plus any net additional permanent income Tax benefits actually
realized by Indemnitee as the result of any payment made pursuant to this
sentence less any reasonable costs and expense of any Indemnitee not
reimbursed by the Lessee; provided, however, that such amount shall not be
payable (a) before such time as the Lessee shall have made all payments or
indemnities then due and payable to such Indemnitee under this Article 9 or
(b) to the extent that the amount of such payment would exceed the amount of
all prior payments by the Lessee to such Indemnitee pursuant to this Article
9, less the amount of all prior payments by such Indemnitee to the Lessee
pursuant to this Article 9. Any subsequent loss of such recovery or Tax
benefit shall be subject to indemnification under Article 8 or this Article 9,
as the case may be.
Section 9.06. Defense of Claims. The Lessee or its insurers shall
have the right (in each such case at the Lessee's sole expense) to investigate
or, provided that (i) the Lessee or its insurers shall not reserve the right
to dispute liability with respect to any insurance policies pursuant to which
coverage is sought, (ii) in the case of the Lessee, no Event of Default shall
have occurred and be continuing and (iii) the Lessee shall have first
acknowledged in writing to such Indemnitee the Lessee's obligation to
indemnify such Indemnitee hereunder in respect of such claim, defend any claim
covered by insurance for which indemnification is sought pursuant to this
Article 9 and each Indemnitee shall cooperate with the Lessee or its insurers
with respect thereto, and provided, further, the Lessee shall not be entitled
to assume and control the defense of any such claim if and to the extent such
Indemnitee reasonably objects to such control on the ground that an actual or
potential material conflict of interest exists where it is advisable for such
Indemnitee to be represented by separate counsel. Subject to the immediately
foregoing sentence, where the Lessee or the insurers under a policy of
insurance maintained by the Lessee undertake the defense of an Indemnitee with
respect to such a claim, no additional legal fees or expenses of such
Indemnitee in connection with the defense of such claim shall be indemnified
hereunder unless the fees or expenses were incurred at the written request of
the Lessee or such insurers. Subject to the requirement of any policy of
insurance applicable to a claim, an Indemnitee may participate at its own
expense at any judicial proceeding controlled by the Lessee or its insurers
pursuant to the preceding provisions, provided that such party's participation
does not, in the opinion of the independent counsel appointed by the Lessee or
its insurers to conduct such proceedings, interfere with such control; and
such participation shall not constitute a waiver of the indemnification
provided in this Section 9.06. No Indemnitee shall enter into any settlement
or other compromise with respect to any claim described in this Section 9.06
without the prior written consent of the Lessee, which consent shall not
unreasonably be withheld or delayed, unless such Indemnitee waives its right
to be indemnified under this Article 9 with respect to such claim. The Lessee
shall not enter into any settlement or compromise which admits any criminal
violation, gross negligence or willful misconduct on the part of any Indemnitee
without the prior written consent of such Indemnitee.
Section 9.07. Survival of Obligations. The representations,
warranties, indemnities and agreements of the Lessee provided for in this
Article 9 and the Lessee's obligations under any and all of them shall survive
the expiration or other termination of this Agreement, the Tax Indemnity
Agreement, the Trust Agreement, the Indenture, the Engine Warranty Assignment,
the Lease and the other Operative Agreements but, as to such indemnities, only
with respect to losses, liabilities, obligations, damages, penalties, claims,
actions, suits, costs, Expenses and disbursements caused by events occurring
or existing prior to or incurred in the process of (i) the return or
disposition of the Aircraft under Article 12 or Article 17 of the Lease, or
(ii) the termination of the Lease or the Indenture or, if later, the return of
the Aircraft.
Section 9.08. Effect of Other Indemnities. The Lessee's obligations
under the indemnities provided for in this Agreement shall be those of a
primary obligor whether or not the Person indemnified shall also be
indemnified with respect to the same matter under the terms of this Agreement,
the Lease, the Indenture, the Trust Agreement, or any other document or
instrument, and the Person seeking indemnification from the Lessee pursuant to
any provision of this Agreement may proceed directly against the Lessee
without first seeking to enforce any other right of indemnification.
ARTICLE 10
TRANSACTION COSTS
Section 10.01. Transaction Costs and Other Costs. (a) Transaction
Costs. Except as otherwise provided in any amendment to this Agreement, the
Lessee (or the Owner Participant following a transfer of the Initial Owner
Participant's Beneficial Interest) shall pay all fees and expenses of the
following persons relating to the public offering of the Pass Through
Certificates contemplated by the Underwriting Agreement and related to the
transactions contemplated hereby on the Certificate Closing Date and the
Delivery Date: (i) the fees and expenses of counsel for any Owner Participant;
(ii) the fees and expenses of the transaction documentation counsel for the
Lessee and counsel for the Owner Trustee, the Indenture Trustee, the Pass
Through Trustee, the Subordination Agent, each Liquidity Provider and the
Underwriters (other than those fees, expenses and disbursements payable by the
Underwriters pursuant to the Underwriting Agreement); (iii) the fees and
expenses of Daugherty, Fowler & Peregrin; (iv) any initial fees and expenses
of the Pass Through Trustee and each Liquidity Provider and the fees and
expenses of the Owner Trustee, the Subordination Agent and the Indenture
Trustee; (v) any compensation, commissions and discounts payable to the
Underwriters pursuant to the Underwriting Agreement; (vi) the fees, if any,
incurred in printing the Pass Through Certificates; (vii) the fees and
expenses incurred in connection with printing any amendment to the
Registration Statement on Form S-3 bearing Registration No. 333-07691,
printing any Preliminary Prospectus or Prospectus (as such terms are defined
in the Underwriting Agreement) for the offering of the Pass Through
Certificates; (viii) the fees and expenses of Arthur Andersen LLP; (ix) the
fees and expenses of Moody's and S&P; (x) the fees and expenses of First
Chicago Leasing Corporation; (xi) the reasonable out-of-pocket expenses of the
Owner Participant, including, without limitation, any amounts paid in
connection with any appraisal report prepared on behalf of the Owner
Participant; (xii) reimbursement to the Owner Participant, the Owner Trustee,
the Indenture Trustee, the Subordination Agent, each Liquidity Provider and
the Pass Through Trustee for any and all fees, expenses and disbursements of
the character referred to above or otherwise incurred in connection with the
negotiation, preparation, execution and delivery, filing and recording of the
Operative Agreements and the documents contemplated thereby, including, without
limitation, travel expenses and disbursements which shall have been paid by
such party; (xiii) printing and duplicating expenses and all fees, taxes and
other charges payable in connection with the recording or filing on or before
the Delivery Date of the instruments described in this Agreement; (xiv)
initial fees, initial expenses, initial disbursements and the initial costs of
distributing the Certificates (but not the continuing fees, expenses,
disbursements and costs of distribution) of SSB, as lessor under the Lease and
as Owner Trustee under the Trust Agreement and with respect to the
administration of the Lease and the Lessor's Estate, of the Indenture Trustee
as trustee under the Indenture with respect to the administration of the Trust
Indenture Estate and of the Subordination Agent acting under the Intercreditor
Agreement; and (xv) any other amounts approved by the Lessee and the Owner
Participant. The fees and expenses described in clauses (ii) through (x) of
this paragraph shall be allocable to the Owner Participant under this
Agreement (1) to the extent incurred specifically with respect to the Owner
Participant, and (2) to the extent such fees and expenses are incurred but are
not specifically attributable to the Owner Participant, in the proportion that
the principal amount of the Certificates bears to the total amount of the Pass
Through Certificates.
The Owner Participant, the Owner Trustee and the Lessee acknowledge
that the percentages for Basic Rent, Stipulated Loss Value and Termination
Value set forth in the Lease have been prepared assuming the aggregate amount
payable by the Owner Participant pursuant to the preceding paragraph is 1.46%
of the Purchase Price (the "Estimated Expense Amount").
(b) Continuing Expenses. The continuing fees, expenses and
disbursements (including reasonable counsel fees and expenses) of the entity
acting as Owner Trustee, as lessor under the Lease and as Owner Trustee under
the Trust Agreement with respect to the administration of the Lease and the
Lessor's Estate and the continuing fees, expenses and disbursements (including
reasonable counsel fees and expenses and initial fees relating to the
establishment of any replacement trustee) of the Indenture Trustee, as trustee
under the Indenture with respect to the administration of the Trust Indenture
Estate, the continuing fees, expenses and disbursements (including reasonable
counsel fees and initial fees relating to the establishment of a replacement
trustee) of the Pass Through Trustee and the Subordination Agent and the
continuing fees, expenses and disbursements (including reasonable counsel fees
and initial fees relating to the establishment of a replacement liquidity
provider) of the Liquidity Providers under each Liquidity Facility shall be
paid as Supplemental Rent by the Lessee, including without limitation any
amounts payable to the Indenture Trustee or on account of requests by the
Indenture Trustee for indemnification under Article XI of the Indenture.
(c) Amendments, Supplements and Appraisal. Without limitation of the
foregoing, the Lessee agrees:
(i) to pay as Supplemental Rent to the Owner Trustee, any Owner
Participant, the Indenture Trustee, the Subordination Agent, each Liquidity
Provider and the Pass Through Trustee all costs and expenses (including
reasonable legal fees and expenses) incurred by any of them in connection
with (a) any Default or Event of Default and any enforcement or collection
proceedings resulting therefrom or (b) the negotiation of any restructuring
or "work-out" (whether or not consummated), or the obligations of the
Lessee hereunder or under the other Operative Agreements and the
enforcement of this Section 10.01, including, without limitation, the
entering into or giving or withholding of any amendments or supplements or
waivers or consents (whether or not consummated), including without
limitation, any amendment, waiver, modification or consent resulting from
any work-out, restructuring or similar proceeding relating to the
performance or nonperformance by the Lessee of its obligations under the
Operative Agreements or (c) any amendment, supplement, waiver or consent
(whether or not entered into) under this Agreement, the Lease, the
Indenture, the Certificates, the Tax Indemnity Agreement, the Engine
Warranty Assignment or any other Operative Agreement or document or
instrument delivered pursuant to any of them, which amendment, supplement,
waiver or consent is required by any provision of any Operative Agreement
or is requested by the Lessee or necessitated by the action or inaction of
the Lessee; provided, however, that the Lessee shall not be responsible for
fees and expenses of the other parties hereto incurred in connection with
the offer, sale or other transfer (whether pursuant to Article 5 of the
Trust Agreement or otherwise) by the Owner Participant or the Owner Trustee
after the Refunding Date of any interest in the Aircraft, the Lessor's
Estate, the Beneficial Interest, the Trust Agreement or any similar
interest (and the Owner Participant shall be responsible for all such fees
and expenses), unless such offer, sale or transfer shall occur (A) during a
period when an Event of Default has occurred and is continuing under the
Lease, (B) during a period following an Event of Loss, (C) in connection
with the termination of the Lease or (D) as a result of an action or
direction of the Lessee pursuant to Section 4.02 or Article 8, 9 or 10 of
the Lease; and
(ii) to pay the fees, costs and expenses of all appraisers involved
in an independent appraisal of the Aircraft to the extent required under
Section 4.03 of the Lease.
ARTICLE 11
SUCCESSOR OWNER TRUSTEE
Section 11.01. Appointment of Successor Owner Trustee. (a)
Resignation and Removal. The Owner Trustee or any successor Owner Trustee may
resign or may be removed by the applicable Owner Participant, and a successor
Owner Trustee may be appointed under the Trust Agreement only in accordance
with the provisions of Section 3.11 of the Trust Agreement and the provisions
of paragraphs (b) and (c) of this Section 11.01.
(b) Conditions to Appointment. The appointment in any manner of a
successor Owner Trustee pursuant to Section 3.11 of the Trust Agreement shall
be subject to the following conditions:
(i) Such successor Owner Trustee shall be a Citizen of the United
States;
(ii) Such successor Owner Trustee shall be a bank or a trust company
having combined capital, surplus and undivided profits of at least
$100,000,000 or a bank or trust company fully guaranteed by a direct or
indirect parent thereof having a combined capital, surplus and undivided
profits of at least $100,000,000;
(iii) Such appointment shall not violate any provisions of the
Transportation Code or any applicable rule or regulation of the applicable
regulatory agency or body of any other jurisdiction in which the Aircraft
may then be registered or create a relationship which would be in violation
of the Transportation Code or any applicable rule or regulation of the
applicable regulatory agency or body of any other jurisdiction in which the
Aircraft may then be registered;
(iv) Such successor Owner Trustee shall enter into an agreement or
agreements, in form and substance satisfactory to the Lessee, the Owner
Participant, the Pass Through Trustee and the Indenture Trustee whereby such
successor Owner Trustee confirms that it shall be deemed a party to this
Agreement, the Trust Agreement, the Lease, the Lease Supplement, the Engine
Warranty Assignment, the Indenture, the Indenture Supplement and any other
Operative Agreement to which the Owner Trustee is a party and agrees to be
bound by all the terms of such documents applicable to the Owner Trustee and
makes the representations and warranties contained in Section 7.04 hereof
(except that it may be duly incorporated, validly existing and in good
standing under the laws of the United States of America or any State
thereof); and
(v) All filings of Uniform Commercial Code financing and continuation
statements, filings in accordance with the Transportation Code and
amendments thereto shall be made and all further actions taken in
connection with such appointment as may be necessary in connection with
maintaining the validity, perfection and priority of the Lien of the
Indenture and the valid and continued registration of the Aircraft in
accordance with the Transportation Code.
ARTICLE 12
LIABILITIES AND INTERESTS OF THE OWNER PARTICIPANT AND HOLDERS
Section 12.01. Liabilities of Owner Participant. No Owner
Participant shall have any obligation or duty to the Lessee or to any Holder
with respect to the transactions contemplated by this Agreement, except those
obligations or duties expressly set forth in this Agreement, the Indenture,
the Trust Agreement, the Tax Indemnity Agreement, the Bills of Sale, the Lease
or any other Operative Agreement to which the Owner Participant is a party and
no Owner Participant shall be liable for the performance by any party hereto
of such other party's obligations or duties hereunder. Under no circumstances
shall the Owner Participant as such be liable to the Lessee, nor shall the
Owner Participant be liable to any Holder, for any action or inaction on the
part of the Owner Trustee or the Indenture Trustee in connection with this
Agreement, the Indenture, the Lease, the Trust Agreement, the Engine Warranty
Assignment, any other Operative Agreement, the ownership of the Aircraft, the
administration of the Lessor's Estate or the Trust Indenture Estate or
otherwise, whether or not such action or inaction is caused by the willful
misconduct or gross negligence of the Owner Trustee or the Indenture Trustee.
Section 12.02. Interest of Holders of Certificates. A Holder of a
Certificate shall have no further interest in, or other right with respect to,
the Trust Indenture Estate when and if the principal and interest on all
Certificates held by such Holder and all other sums payable to such Holder
under this Agreement, under the Indenture and under such Certificates shall
have been paid in full.
ARTICLE 13
OTHER DOCUMENTS
Section 13.01. Consent of Lessee to Other Documents. The Lessee
hereby consents in all respects to the execution and delivery of the
Indenture, the Intercreditor Agreement and the Liquidity Facilities and to all
of the terms of said documents, and the Lessee acknowledges receipt of an
executed counterpart of such documents; it being agreed that such consent
shall not be construed to require the Lessee's consent to any future
supplement to, or amendment, waiver or modification of the terms of the
Indenture, the Intercreditor Agreement and the Liquidity Facilities or the
Certificates, except that prior to the occurrence and continuance of an Event
of Default, no section of the Indenture or the Trust Agreement, the
Intercreditor Agreement and the Liquidity Facilities shall be amended or
modified in any manner materially adverse to the Lessee without its consent.
Section 13.02. Further Assurances. The Lessee agrees that, except
as otherwise provided in the Indenture, the Owner Trustee may not enter into
any amendment, modification or supplement of, or give any waiver or consent
with respect to, or approve any matter or document as being satisfactory under
the Lease without the prior consent of the Indenture Trustee and any Owner
Participant and that, except as otherwise provided in the Indenture, upon an
Indenture Event of Default, the Indenture Trustee may act as the Lessor under
the Lease to the exclusion of the Owner Trustee. The Lessee further agrees to
deliver to the Indenture Trustee and any Owner Participant a copy of each
notice, statement, request, report or other communication given or required to
be given to the Owner Trustee under the Lease.
Section 13.03. Pass Through Trustee's and Subordination Agent's
Acknowledgement. The Pass Through Trustee and the Subordination Agent hereby
acknowledge and agree to be bound by all of the terms and conditions of the
Indenture, including without limitation, Section 8.01 thereof regarding the
rights of the Owner Participant to purchase the Certificates under
circumstances specified therein.
ARTICLE 14
NOTICES
Section 14.01. Notices. All notices, demands, declarations and other
communications required by this Agreement shall be in writing and shall be
deemed received (a) if given by telecopier, when transmitted and the
appropriate telephonic confirmation received if transmitted on a Business Day
and during normal business hours of the recipient, and otherwise on the next
Business Day following transmission, (b) if given by certified mail, return
receipt requested, postage prepaid five Business Days after being deposited in
the United States mail, and (c) if given by FedEx service or other means, when
received or personally delivered, addressed:
(a) If to the Lessee, to its office at 2007 Corporate Avenue,
Memphis, Tennessee 38132, Attention: Vice President and Treasurer with a
copy to Senior Vice President and General Counsel at 1980 Nonconnah
Boulevard, Memphis, Tennessee 38132, telephone (901) 395-3388, facsimile
(901) 395-4758; or to such other address as the Lessee shall from time to
time designate in writing to the Lessor, the Indenture Trustee and any
Owner Participant;
(b) If to the Lessor or the Owner Trustee, to it c/o State Street
Bank and Trust Company, Two International Place, 4th Floor, Boston,
Massachusetts 02110, Attention: Corporate Trust Department, telephone (617)
664-5526, facsimile (617) 664-5371; or to such other address as the Lessor
shall from time to time designate in writing to the Lessee and the
Indenture Trustee, with a copy to any Owner Participant;
(c) If to the Indenture Trustee, the Subordination Agent or the Pass
Through Trustee, to its office at 79 South Main Street, Salt Lake City,
Utah 84111, Attention: Corporate Trust Department, telephone (801)
246-5053, facsimile (801) 246-5630; or to such other address as the
Indenture Trustee or the Pass Through Trustee, as the case may be, shall
from time to time designate in writing to the Lessor, the Lessee and any
Owner Participant; and
(d) If to a Liquidity Provider, to its office at 125 West 55th
Street, New York, New York 10019, Attention: General Manager, telephone
(212) 541-0600, facsimile (212) 956-5580; or to such other address as a
Liquidity Provider shall from time to time designate in writing to the
Lessor, the Lessee and the Indenture Trustee.
ARTICLE 15
REFINANCING/REOPTIMIZATION
Section 15.01. Refinancing. (a) Subject to the terms and
conditions of this Section 15.01, the Lessee may request an Owner Participant
to participate in up to two refinancings in whole but not in part, of the
Certificates prior to the end of the Basic Term (a "Refinancing"). Such
Refinancings may be placed in either the private or public markets and shall
be denominated in United States dollars (or in any other foreign currency so
long as the Owner Participant is satisfied there is no foreign currency risk
to it), and shall be on terms that do not materially adversely affect the
Owner Participant. The Owner Participant will agree to negotiate promptly in
good faith to conclude an agreement with the Lessee as to the terms of any such
Refinancing transaction (including the terms of any debt to be issued in
connection with such refinancing and the documentation to be executed in
connection therewith). Without the prior written consent of the Owner
Participant, the prospectus and other offering materials relating to any
Refinancing in the form of a public offering shall not identify the Owner
Participant and shall not include any financial statements of the Owner
Participant or any Affiliate thereof. In connection with any such Refinancing
in the form of a public offering, the Lessee shall indemnify the Owner
Participant in a manner satisfactory to it for any liabilities under federal,
state or foreign securities laws resulting from such offering. The aggregate
principal amount of the new Certificates issued in connection with each
Refinancing shall be the same as the aggregate principal amount outstanding on
the Certificates being refinanced.
(b) Notwithstanding anything herein to the contrary, no Refinancing
will be permitted unless the Owner Participant and the Indenture Trustee shall
have received at least 15 days' prior written notice of the scheduled closing
date of such Refinancing and the Owner Participant shall have been provided
such longer period as it shall have required for a reasonable opportunity to
review the relevant documentation and the Owner Participant shall have
determined in good faith that neither it nor the Owner Trustee shall suffer
any loss or expense or bear any increased risk as a result of such Refinancing
(including, without limitation, any risk with respect to taxes or other
adverse consequences to the Owner Participant including the application of
Revenue Procedures 75-21 and 75-28 and Section 467 of the Code) for which it
has not been or will not have been indemnified by the Lessee in a manner
reasonably satisfactory to the Owner Participant, nor shall its rights against
all other parties taken as a whole be adversely affected compared to such
rights in effect under the Operative Agreements prior to such proposed
Refinancing.
Prior to the consummation of any Refinancing pursuant to this Section
15.01, the Owner Participant and the Lessee shall agree upon a schedule
setting forth each installment of Basic Rent and setting forth Stipulated Loss
Values and Termination Values payable pursuant to the Lease as a result of the
Refinancing in accordance with Section 3.04 of the Lease, and thereafter the
amounts set forth in such schedule shall become the amounts payable under the
Lease. Upon the consummation of the Refinancing, the evidence of indebtedness
issued pursuant to the Refinancing shall be considered "Certificates" for
purposes of this Agreement, the Lease and the Indenture.
(c) Notwithstanding the foregoing, the Owner Participant shall have
no obligation to proceed with any Refinancing transaction as contemplated by
this Section 15.01 unless the Lessee indemnifies the Owner Trustee and the
Owner Participant by agreement in form and substance satisfactory to each of
them, for any liability, obligation (other than the obligation to pay
principal and interest in respect of the refinanced indebtedness), cost or
expense (including, without limitation, reasonable attorneys' fees and
Make-Whole Premium or other amounts due under the Indenture), including any
adverse tax consequences or impact, related to or arising out of any such
Refinancing transaction.
(d) Without the prior written consent of the Owner Participant, which
consent may be withheld in its sole discretion, no such refinancing shall (1)
cause the aggregate principal amount of the indebtedness to be substituted for
the Certificates to exceed the aggregate principal amount of the then
outstanding Certificates, (2) cause the weighted average life of such
indebtedness to be different by more than 6 months than the remaining weighted
average life of the then outstanding Certificates, or (3) cause the date of
maturity of such indebtedness to be later than the date of maturity of the
Certificates being refinanced.
(e) Each party will agree to take or cause to be taken all requested
action, including, without limitation, the execution and delivery of any
documents and instruments, including, without limitation, amendments or
supplements to the Lease, which may be reasonably necessary or desirable to
effect such Refinancing, including, in the case of the Owner Participant,
direction to the Owner Trustee by the Owner Participant to prepay the
Certificates then outstanding; provided, however, that such Refinancing shall
be subject to the satisfaction of each of the following conditions:
(i) Payment of principal, accrued interest, Make-Whole Premium and
breakage costs, if any, and all other sums due and owing on the Certificates
payable under the Indenture;
(ii) Payment in full of all other amounts then due and owing by the
Lessee under this Agreement, the Indenture, the Lease, the Trust Agreement,
and the Certificates then outstanding shall have been made by the Lessee;
(iii) Such party shall have received such opinions of counsel
(including, without limitation, an opinion received by the Owner
Participant from independent tax counsel reasonably satisfactory to the
Lessee that such Refinancing shall not result in any adverse tax
consequences to such Owner Participant, unless the Lessee shall have agreed
to provide an indemnity in respect thereof reasonably satisfactory in form
and substance to the Owner Participant), certificates and other documents
as it may reasonably request, each in form and substance reasonably
satisfactory to such party;
(iv) All authorizations, approvals and consents which in the
reasonable judgment of the Owner Participant are necessary for such
Refinancing shall have been obtained;
(v) The Lessee shall have provided or agreed to provide to the Owner
Participant, as Supplemental Rent under the Lease, sufficient funds to pay
any breakage costs, Make-Whole Premium and any other amounts due under the
Indenture;
(vi) The satisfaction or waiver by each other party to this
Agreement of the conditions set forth in this Section 15.01 to such party's
obligations under this Section 15.01;
(vii) No Payment Default, Bankruptcy Default or Event of Default shall
have occurred and be continuing or would occur immediately after giving
effect to such Refinancing;
(viii) In the event the Lessee shall not prohibit the purchase of
the Refinancing loan certificates by, or with the assets of, an employee
benefit plan, as defined in Section 3(3) of ERISA, which is subject to
Title I of ERISA or a plan or individual retirement account, which is
subject to Section 4975(c) of the Code, (individually or collectively, an
"ERISA Plan"), the Lessee will permit the placement of the Refinancing loan
certificates with an ERISA Plan only if either (A) if such placement is in
the form of pass through certificates, the sole underwriter or the manager
or co-manager of the underwriting syndicate or the selling or placement
agent of the Refinancing loan certificates represents to the Lessee that it
has a prohibited transaction exemption from the U.S. Department of Labor
with respect to pass through certificates (such as Prohibited Transaction
Exemption 89-88 or any other comparable exemption) or (B) purchasers of the
Refinancing loan certificates provide a representation (which may be in the
form of a deemed representation) regarding their source of funds used in
acquiring the Refinancing loan certificates and, if such purchasers
represent that they are using funds of an ERISA Plan in acquiring the
Refinancing loan certificates, such purchasers further represent that (1)
either they are relying on a prohibited transaction exemption from the U.S.
Department of Labor with respect to their purchase and holding of the
Refinancing loan certificates and they provide representations regarding the
satisfaction of the relevant conditions of such an exemption or (2) their
purchase and holding of the Refinancing loan certificates will not
constitute a non-exempt prohibited transaction under Section 406 of ERISA
or Section 4975 of the Code. The reliance on any such exemption will not
be conditional on the Owner Participant's representation concerning its
party in interest or other status with respect to ERISA Plans. If neither
exemption referred to in clause (A) or (B) of this paragraph (viii) is
valid or applicable in any respect to the purchase and holding of the
Refinancing loan certificates, or if the representation in clause (B) of
this paragraph (viii) that such purchase and holding will not constitute a
non-exempt prohibited transaction is not correct, whichever is applicable,
then the Lessee shall indemnify the Owner Participant pursuant to, and to
the extent provided for, under Sections 8 and 9 hereof for Taxes and
Expenses resulting from any "prohibited transaction", within the meaning of
Section 406 of ERISA or Section 4975(c)(1) of the Code, occurring with
respect to the placement of the Refinancing loan certificates with, or the
holding of the Refinancing loan certificates by, any ERISA Plan with
respect to which the Owner Participant is a party in interest, within the
meaning of Section 3(14) of ERISA, or a disqualified person, within the
meaning of Section 4975 of the Code, provided, however, that if the Lessee
shall fail to obtain either of the representations set forth in clause (A)
or (B) of this paragraph (viii), such indemnity shall not be subject to the
exceptions set forth under Sections 8.01(b)(xii)(A) and (B) and
9.01(b)(ix)(A) and (B) hereof; and
(ix) The Lessee shall pay all costs and expenses (including legal
fees) incurred in connection with any proposed or actually consummated
Refinancing.
ARTICLE 16
[RESERVED]
ARTICLE 17
MISCELLANEOUS
Section 17.01. Reserved.
Section 17.02. Collateral Account. (a) The Indenture Trustee shall
notify the Owner Trustee and the Lessee of any losses incurred on the
Specified Investments in the Collateral Account promptly upon the realization
thereof, as well as any fees, commissions and other costs, Taxes (other than
income taxes) and expenses, if any, incurred by the Indenture Trustee in
connection with its administration of the Collateral Account (collectively,
"Losses"). Promptly upon receipt of such notification but, in any event, no
later than the earlier of the Delivery Date (or, if later, the last day of any
investment period referred to in Section 2.14(b) of the Indenture during which
the Delivery Date occurs) and the 15th day after the Cut-Off Date, the Lessee
shall pay to the Indenture Trustee, on behalf of the Owner Trustee, for
deposit into the Collateral Account, an amount equal to such Losses (net of
any investment earnings).
(b) The Lessee shall pay to the Indenture Trustee, on behalf of the
Owner Trustee (A) on each Payment Date prior to the Delivery Date an amount
equal to the aggregate amount of interest accrued on the Certificates from
(and including) the Certificate Closing Date or previous Payment Date, as the
case may be, to, but excluding, such Payment Date and (B) on the first Payment
Date subsequent to the Delivery Date, interest accrued on the Certificates
from and including the last Payment Date (or, if none, the Certificate Closing
Date), to, but excluding, the Delivery Date. In addition, the Lessee will pay
to the Indenture Trustee on behalf of the Owner Trustee all amounts owed by
the Owner Trustee pursuant to clause (b) of the last paragraph of Section 2.04
of the Indenture.
(c) If the Aircraft has not been purchased by the Owner Trustee on the
Delivery Date, the Lessee agrees to pay to the Indenture Trustee, on behalf of
the Owner Trustee, on the 15th day following the Cut-Off Date the excess, if
any, of the amounts payable under Section 6.02(b)(1) of the Indenture over the
amounts released from the Collateral Account under Section 2.16 of the
Indenture.
(d) All amounts payable by the Lessee pursuant to this Section 17.02
shall be paid to the Indenture Trustee at its principal office at 79 South
Main Street, Salt Lake City, Utah, 84111, Attention: Corporate Trust
Department, or as the Indenture Trustee may otherwise direct within the United
States, by wire transfer of immediately available funds in U.S. Dollars no
later than 10:30 a.m., New York City time, on the due date of such payment.
Section 17.03. Counterparts. This Agreement may be executed by the
parties in separate counterparts, each of which when so executed and delivered
shall be an original, but all such counterparts shall together constitute but
one and the same instrument.
Section 17.04. No Oral Modifications. Neither this Agreement nor
any of its terms may be terminated, amended, supplemented, waived or modified
orally, but only by an instrument in writing signed by the party against which
the enforcement of the termination, amendment, supplement, waiver or
modification is sought. No such written termination, amendment, supplement,
waiver or modification shall be effective unless a signed copy shall have been
delivered to and executed by the Owner Trustee and the Indenture Trustee. A
copy of each such termination, amendment, supplement, waiver or modification
shall also be delivered to each other party to this Agreement.
The consent of the Pass Through Trustee and the Subordination Agent,
in its respective capacity as a party to this Agreement and not as a Holder,
shall not be required to modify, amend or supplement this Agreement or to give
any consent, waiver, authorization or approval with respect to this Agreement
under the circumstances in which the consent of the Indenture Trustee would
not be required for such modification, amendment, supplement, consent, waiver
or approval in accordance with Section 8.01(b) of the Indenture and Section
2.03 hereof, provided that the Pass Through Trustee shall be entitled to
receive an Opinion of Counsel (as defined in the Pass Through Agreement)
necessary, in its sole discretion, to establish that the Indenture Trustee's
consent would not be required under such circumstances.
Section 17.05. Captions. The table of contents preceding this
Agreement and the headings of the various Articles and Sections of this
Agreement are for convenience of reference only and shall not modify, define,
expand or limit any of the terms or provisions of this Agreement.
Section 17.06. Successors and Assigns. The terms of this Agreement
shall be binding upon, and shall inure to the benefit of, the Lessee and its
successors and permitted assigns, the Subordination Agent and its successors
and permitted assigns, the Owner Trustee and its successors as Owner Trustee
(and any additional owner trustee appointed) under the Trust Agreement, the
Indenture Trustee and its successors as Indenture Trustee (and any additional
indenture trustee appointed) under the Indenture and the Pass Through Trustee
and its successors as Pass Through Trustee (and any additional pass through
trustee appointed).
Section 17.07. Concerning the Owner Trustee, the Indenture Trustee
and the Pass Through Trustee. Each of SSB and FSB is entering into this
Agreement solely in their respective capacities (except to the extent
otherwise expressly indicated), in the case of SSB, not in its individual
capacity but solely as Owner Trustee under the Trust Agreement, in the case of
FSB, not in its individual capacity but solely as Indenture Trustee under the
Indenture and as Pass Through Trustee under the Pass Through Agreement, and
except as otherwise expressly provided in this Agreement or in the Lease, the
Indenture, the Pass Through Agreement or the Trust Agreement, neither SSB,
nor FSB, shall be personally liable for or on account of its statements,
representations, warranties, covenants or obligations under this Agreement;
provided, however, that each of SSB and FSB accepts the benefits running to it
under this Agreement, and each agrees that (except as otherwise expressly
provided in this Agreement or any other Operative Agreement to which it is a
party) it shall be liable in its individual capacity for (a) its own gross
negligence or willful misconduct (whether in its capacity as trustee or in its
individual capacity), (b) any breach of representations and warranties or any
breach of covenants made in its individual capacity pursuant to or in
connection with this Agreement or the other Operative Agreements to which it is
a party, (c) any breach, in the case of the Owner Trustee, of its covenants
contained in Sections 3.05 and 3.08 of the Indenture, (d) the failure to use
ordinary care in receiving, handling and disbursing funds, (e) in the case of
the Owner Trustee, Lessor's Liens attributable to it in its individual
capacity, (f) in the case of the Indenture Trustee, Indenture Trustee's Liens
and (g) taxes, fees or other charges on, or based on, or measured by, any
fees, commissions or compensation received by it in connection with the
transactions contemplated by the Operative Agreements.
Section 17.08. Severability. Any provision of this Agreement which
is prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions, and any such
prohibition or unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction.
Section 17.09. Public Release of Information. Subject to applicable
legal requirements (including, without limitation, securities laws
requirements, other regulatory requirements and other legally compelled
disclosures), so long as there shall not have occurred an Event of Default or
Indenture Event of Default, each party to this Agreement shall in each
instance obtain the prior written approval of each other party to this
Agreement concerning the exact text and timing of news releases, articles and
other information releases to the public media concerning any Operative
Agreements.
Section 17.10. Certain Limitations on Reorganization. The Indenture
Trustee and the Pass Through Trustee agree that, if (i) the Owner Trustee
becomes or all or any part of the Lessor's Estate or the trust created by the
Trust Agreement becomes the property of, a debtor subject to the
reorganization provisions of the Bankruptcy Code or any other applicable
bankruptcy or insolvency statutes, (ii) pursuant to any such reorganization
provisions, the Owner Participant is held to have recourse liability to the
debtor, the Owner Trustee or the trustee of the debtor directly or indirectly
on account of any amount payable as Make-Whole Premium, principal or interest
on the Certificates, or any other amount payable on any Certificate that is
provided in the Operative Agreements to be nonrecourse to the Owner
Participant and (iii) the Indenture Trustee actually receives any Recourse
Amount which reflects any payment by an Owner Participant on account of (ii)
above, then the Indenture Trustee, as the case may be, shall promptly refund
to the Owner Participant such Recourse Amount. For purposes of this Section
17.10, "Recourse Amount" means the amount by which the portion of such payment
by the Owner Participant on account of clause (ii) above received by the
Indenture Trustee exceeds the amount which would have been received by the
Indenture Trustee if the Owner Participant had not become subject to the
recourse liability referred to in (ii) above. Nothing contained in this
Section shall prevent the Indenture Trustee from enforcing any individual
obligation (and retaining the proceeds thereof) of the Owner Participant under
this Agreement or any other Operative Agreement to the extent herein or
therein provided, for which the Owner Participant has expressly agreed by the
terms of this Agreement to accept individual responsibility.
Section 17.11. GOVERNING LAW. THIS AGREEMENT SHALL IN ALL RESPECTS
BE GOVERNED BY, AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF
NEW YORK, INCLUDING ALL MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE BUT
WITHOUT GIVING EFFECT TO PRINCIPLES OF CONFLICTS OF LAWS, AND IS BEING
DELIVERED IN NEW YORK.
Section 17.12. Section 1110 Compliance. Notwithstanding any
provision herein or elsewhere contained to the contrary, it is understood and
agreed among the parties hereto that the transactions contemplated by this
Agreement and the other Operative Agreements are expressly intended to be,
shall be and should be construed so as to be, entitled to the full benefits of
Section 1110 of the Bankruptcy Code from time to time with respect to the
right to repossess the Airframe, the Engines and any Parts as provided herein,
and in any circumstances where more than one construction of the terms and
conditions of this Agreement is possible, a construction which would preserve
such benefits shall control over any construction which would not preserve
such benefits or would render them doubtful.
Section 17.13. Reliance of Liquidity Providers. Each of the parties
hereto agrees and acknowledges that each Liquidity Provider shall be a third
party beneficiary of each of the representations and warranties made herein by
such party, and that each Liquidity Provider may rely on such representations
and warranties to the same extent as if such representations and warranties
were made to such Liquidity Provider directly. The terms of this Agreement
shall inure to the benefit of each Liquidity Provider, their respective
successors and permitted assigns.
ARTICLE 18
CONFIDENTIALITY
Section 18.01. Confidentiality. Each party hereto agrees (on behalf
of itself and each of its Affiliates, agents, directors, officers, employees
and representatives) to use reasonable precautions to keep confidential, in
accordance with its customary procedures for handling confidential information
of this nature, any non-public information supplied to it pursuant to this
Agreement which is identified by the Person supplying the same as being
confidential at the time the same is delivered to such party, provided that
nothing herein shall limit the disclosure of any such information (i) to the
extent required by statute, rule, regulation or judicial process, (ii) to
counsel for any of the parties hereto, (iii) to bank examiners or similar
regulatory authorities, auditors or accountants, (iv) in connection with any
litigation to which any one or more of the parties hereto is a party relating
to the transactions contemplated hereby or by any of the Operative Agreements,
(v) to an Affiliate of the parties hereto, (vi) to any assignee or participant
(or prospective assignee or participant) or other transferee so long as such
assignee or participant (or prospective assignee or participant) or other
transferee first executes and delivers to the respective party making such
assignment or participation an agreement in writing to be bound by the
provisions of this Section 18.01 or (vii) in the case of any Owner Participant
or the Owner Trustee (in its individual or trust capacity) to the Owner
Trustee (in its individual or trust capacity) or to the Owner Participant, as
the case may be.
IN WITNESS WHEREOF, the parties have caused this Participation
Agreement to be executed by their respective, duly authorized officers and this
Participation Agreement shall be effective this 22nd day of May, 1997.
LESSEE:
FEDERAL EXPRESS CORPORATION
By:__________________________________________
Name: Robert D. Henning
Title: Assistant Treasurer and Managing
Director - Structured Finance
INITIAL OWNER PARTICIPANT:
FEDERAL EXPRESS CORPORATION
By:__________________________________________
Name: Robert D. Henning
Title: Assistant Treasurer and Managing
Director - Structured Finance
OWNER TRUSTEE:
STATE STREET BANK AND TRUST COMPANY OF
CONNECTICUT, NATIONAL ASSOCIATION,
not in its individual capacity,
except as otherwise expressly provided herein,
but solely as Owner Trustee
By:__________________________________________
Name: Paul D. Allen
Title: Vice President
INDENTURE TRUSTEE:
FIRST SECURITY BANK,
NATIONAL ASSOCIATION,
not in its individual capacity except as
otherwise expressly provided herein,
but solely as Indenture Trustee
By:__________________________________________
Name: Greg A. Hawley
Title: Vice President
PASS THROUGH TRUSTEE:
FIRST SECURITY BANK,
NATIONAL ASSOCIATION,
not in its individual capacity except as
otherwise expressly provided herein,
but solely as Pass Through Trustee
By:__________________________________________
Name: Greg A. Hawley
Title: Vice President
SUBORDINATION AGENT:
FIRST SECURITY BANK,
NATIONAL ASSOCIATION,
not in its individual capacity except as
otherwise expressly provided herein,
but solely as Subordination Agent
By:__________________________________________
Name: Greg A. Hawley
Title: Vice President
SCHEDULE I
CERTIFICATE INFORMATION
1. Federal Express Corporation 1997-1 Pass Through Trust Class A
Federal Express Corporation Trust No. N584FE
Interest Rate: 7.50%
Maturity: January 15, 2016
Principal Amount: $36,665,000
2. Federal Express Corporation 1997-1 Pass Through Trust Class B
Federal Express Corporation Trust No. N584FE
Interest Rate: 7.52%
Maturity: January 15, 2017
Principal Amount: $13,616,000
3. Federal Express Corporation 1997-1 Pass Through Trust Class C
Federal Express Corporation Trust No. N584FE
Interest Rate: 7.65%
Maturity: January 15, 2009
Principal Amount: $10,611,000
SCHEDULE II
DEFINITIONS
(FEDERAL EXPRESS CORPORATION TRUST NO. N584FE)
GENERAL PROVISIONS
The following terms shall have the following meanings for all
purposes of the Operative Agreements (other than the Pass Through Agreement,
the Series Supplements, the Intercreditor Agreement and the Liquidity
Facilities) referred to below, unless otherwise defined in an Operative
Agreement or the context thereof shall otherwise require. In the case of any
conflict between the provisions of this Schedule and the provisions of any
Operative Agreement, the provisions of such Operative Agreement shall control
the construction of such Operative Agreement.
Unless the context otherwise requires, (i) references to agreements
shall be deemed to mean and include such agreements as amended and
supplemented from time to time, and (ii) references to parties to agreements
shall be deemed to include the successors and permitted assigns of such
parties.
DEFINED TERMS:
Additional Insured. As defined in Article 13 of the Lease.
Aeronautics Authority. As appropriate, the Federal Aviation
Administration and/or the Administrator of the Federal Aviation
Administration, any successor to the former United States Civil Aeronautics
Board, or any Person, governmental department, bureau, commission or agency
located in the United States succeeding to the functions of any of the
foregoing.
Affidavits. The affidavits of citizenship of the Owner Trustee and
the Owner Participant.
Affiliate. With respect to any Person, any other Person directly or
indirectly controlling, controlled by or under common control with such
Person. For the purposes of this definition, "control" (including "controlled
by" and "under common control with") shall mean the power, directly or
indirectly, to direct or cause the direction of the management and policies of
such Person whether through the ownership of voting securities or by contract
or otherwise. In no event shall the Owner Trustee or the Lessor be deemed an
Affiliate of the Owner Participant.
After-Tax Basis. A basis such that any payment received or deemed to
have been received by a Person shall be supplemented by a further payment to
such Person so that the sum of the two payments, after deduction of all Taxes
resulting from the receipt or accrual of such payments, shall be equal to the
payment received or deemed to have been received. In the case of amounts
payable to the Lessor, the Owner Participant, or any corporate Affiliate of
the Owner Participant, it shall be presumed that such Person is at all times
subject to Federal income tax at the maximum marginal rate generally
applicable to corporations from time to time and actual state, local and
foreign income taxes.
Air Carrier. Any U.S. Air Carrier and any "foreign air carrier" (as
defined in the Transportation Code) as to which there is in force a permit
granted under Section 41302 of the Transportation Code.
Aircraft. The Airframe to be sold by the Lessee to the Owner Trustee
as provided in the Participation Agreement and to be leased under the Lease
(or any permitted substitute airframe thereunder) together with three Engines
(whether each an initial Engine or a Replacement Engine) whether or not any of
such initial or Replacement Engines may from time to time be installed on such
Airframe or may be installed on any other airframe or on any other aircraft,
including any aircraft substituted pursuant to Section 11.03 of the Lease.
Prior to delivery of the initial Lease Supplement, references in the Operative
Agreements (including Section 3.03 of the Participation Agreement) to Aircraft
shall mean the McDonnell Douglas MD-11F airframe bearing FAA Registration
Number N1768D (currently anticipated to be changed to N584FE) and
Manufacturer's serial number 48436, together with three General Electric
CF6-80C2-D1F engines.
Airframe. The McDonnell Douglas MD-11F aircraft (excluding the
Engines or engines from time to time installed thereon) to be leased by the
Lessor to the Lessee pursuant to the Lease and the initial Lease Supplement
and having the United States FAA Registration Number initially and
manufacturer's serial number specified in the initial Lease Supplement,
including (i) all Parts in respect thereof and (ii) any Replacement Airframe
which may be substituted pursuant to Section 11.03 of the Lease.
Ancillary Agreement. Any written agreement of the Lessee to which the
Lessor is a party or to which the Lessor has consented in writing entered into
on or prior to the Delivery Date or any date thereafter in connection with the
transactions contemplated by the Operative Agreements, as such agreement may
be amended and supplemented from time to time with the consent of the Lessor
and delivered to the Owner Trustee, the Indenture Trustee, the Pass Through
Trustee, the Subordination Agent, each Liquidity Provider and the Owner
Participant.
Ancillary Agreement I. The Ancillary Agreement I (Federal Express
Corporation Trust No. N584FE), dated the Delivery Date, among the Lessee, the
Owner Trustee, not in its individual capacity, but solely as Owner Trustee,
the Owner Participant and the Indenture Trustee not in its individual
capacity, but solely as Indenture Trustee, as originally executed or as
amended, modified or supplemented with the consent of all the parties thereto.
Application. The application for registration of the Aircraft with
the FAA in the name of the Owner Trustee.
Appraisal. The report prepared by BK Associates, Inc. and to be
delivered to the Owner Participant (with a copy of the conclusions to the
Lessee) on the Delivery Date pursuant to Section 4.02(h) of the Participation
Agreement.
Average Life Date. For any Certificate, the date which follows the
prepayment date by a period equal to the Remaining Weighted Average Life of
such Certificate.
Bankruptcy Code. The Federal Bankruptcy Code of 1978, as amended, and
any successor thereto.
Bankruptcy Default. An event specified in Section 16.01(e), (f) or
(g) of the Lease which either does or, with the giving of notice or lapse of
time or both, would constitute an Event of Default.
Basic Rent. The aggregate periodic rent payable for the Aircraft
throughout the Basic Term pursuant to Section 3.02 of the Lease, adjusted
pursuant to Article 3 of the Lease.
Basic Term. The period commencing at the beginning of the day on the
Delivery Date and ending at the end of the day on June 15, 2019, or such
earlier date on which the Lease shall be terminated as provided therein.
Beneficial Interest. The interest of the Owner Participant (or the
Initial Owner Participant, as the case may be) under the Trust Agreement.
Bills of Sale. Collectively, the FAA Bill of Sale and the Warranty
Bill of Sale.
Business Day. Any day on which commercial banks are not authorized or
required to close in New York, New York, Memphis, Tennessee and the city in the
United States in which the office or agency is maintained by the Pass Through
Trustee for the payment of the Pass Through Certificates, and after the Lien
of the Indenture is discharged, Boston, Massachusetts.
Certificate Closing Date. The date of the closing with respect to the
purchase of Certificates by the Pass Through Trustee contemplated by Section
2.01(b) of the Participation Agreement.
Certificates. The Equipment Trust Certificates (Federal Express
Corporation Trust No. N584FE), issued by the Owner Trustee pursuant to the
Indenture and any certificate issued in exchange therefor or replacement
thereof pursuant to the Indenture.
Citizen of the United States. A citizen of the United States as
defined in Section 40102(a)(15) of the Transportation Code, or any analogous
part of any successor or substituted legislation or regulation at the time in
effect.
Class A Liquidity Provider. Has the meaning specified in Section
1.01 of the Intercreditor Agreement.
Class B Liquidity Provider. Has the meaning specified in Section
1.01 of the Intercreditor Agreement.
Closings. The closing with respect to the acquisition of the Pass
Through Certificates by the Underwriters and the closing with respect to the
acquisition of Certificates by the Pass Through Trustee.
Code. Except as otherwise provided, the Internal Revenue Code of
1986, as amended from time to time.
Collateral Account. The deposit account established and maintained
pursuant to Section 2.13 of the Indenture.
Collateral Account Control Agreement. The Collateral Account Control
Agreement dated as of May 1, 1997 among State Street Bank and Trust Company,
the Indenture Trustee and the Owner Trustee.
Commitment. The amount of the Owner Participant's participation in
the Purchase Price required to be made available or paid as provided in
Section 3.02 of the Participation Agreement.
Corporate Trust Administration. The Corporate Trust Administration
office of the Owner Trustee located at 750 Main Street, Hartford, Connecticut
06103, Attention: Corporation Trust Administration, or such other office at
which the Owner Trustee's corporate trust business shall be administered which
the Owner Trustee shall have specified by notice in writing to the Lessee, the
Owner Participant and the Indenture Trustee.
Corporate Trust Department. The Corporate Trust Department office of
the Indenture Trustee located at 79 South Main Street, Salt Lake City, Utah
84111, Attention: Corporate Trust Department, or such other office at which
the Indenture Trustee's corporate trust business shall be administered which
the Indenture Trustee shall have specified by notice in writing to the Lessee,
the Owner Participant and the Owner Trustee.
CRAF Program. Has the meaning specified in Section 7.01(f) of the
Lease.
Cut-Off Date. April 15, 1998.
Debt Portion. The amount specified as such on Schedule IV to the
Participation Agreement.
Debt Rate. The weighted average (based on Outstanding principal
amount) rate of interest on the Certificates issued pursuant to the Indenture.
Default. Any event or condition which, with the lapse of time or the
giving of notice, or both, would constitute an Event of Default.
Delivery Date. The date on which the Aircraft is delivered and sold
by the Lessee to the Lessor and leased by the Lessor to the Lessee under the
Lease, which date shall also be the date of the initial Lease Supplement.
Delivery Notice. Notice of the Aircraft's Delivery Date, given by
the Lessee as provided in Section 3.01 of the Participation Agreement and
including any notice with respect to a postponed Delivery Date given by the
Lessee pursuant to Section 3.03(c) of the Participation Agreement.
EBO Date. Has the meaning specified in Section 4.02(a)(F) of the
Lease.
EBO Price. Has the meaning specified in Section 4.02(a)(F) of the
Lease.
Eligible Deposit Account. Either (a) a segregated account with an
Eligible Institution or (b) a segregated trust account with the corporate
trust department of a depository institution with corporate trust powers
organized under the laws of the United States or any state thereof, or the
District of Columbia, and whose deposits are insured by the Federal Deposit
Insurance Corporation, provided that such institution also has a combined
capital and surplus of at least $100,000,000 and a rating of A or better from
the Thomson Bank Watch.
Eligible Institution. A depository institution organized under the
laws of the United States or any one of the states thereof, or the District of
Columbia, or any domestic branch of a foreign bank, which in any such case at
all times (a) has either (x) a long-term unsecured debt rating of at least Aa2
by Moody's or (y) a short-term certificate of deposit rating of P-1 by
Moody's, (b) has either (x) a long-term unsecured debt rating of a least AA by
S&P or (y) a short-term certificate of deposit rating of A-1+ by S&P and (c)
is a member of the Federal Deposit Insurance Corporation.
Engine. Each of the three General Electric CF6-80C2-D1F engines
listed by its manufacturer's serial number in the initial Lease Supplement and
leased pursuant to the Lease, whether or not from time to time installed on
the Airframe or installed on any other airframe or on any other aircraft, and
any Replacement Engine which may from time to time be substituted for an
Engine pursuant to Section 7.02(a)(vii), 10.03, 11.03, 11.04 or 12.02 of the
Lease, together with all Parts related thereto. Except as otherwise provided,
at such time as a Replacement Engine shall be so substituted and the Engine
for which the substitution is made shall be released from the Lien of the
Indenture, such replaced Engine shall cease to be an "Engine" under the Lease.
The term "Engines" means, as of any date of determination, all Engines then
leased to the Lessee pursuant to the Lease.
Engine Consent. The Engine Consent dated as of May 1, 1997, executed
by the Engine Manufacturer.
Engine Manufacturer. General Electric Company, a New York
corporation.
Engine Warranty Assignment. The Engine Warranty Assignment (Federal
Express Corporation Trust No. N584FE), dated as of May 1, 1997 between the
Lessor and the Lessee.
ERISA. The Employee Retirement Income Security Act of 1974, as
amended.
ERISA Plan. An employee benefit plan subject to Title I of ERISA, or
an individual retirement account or plan subject to Section 4975 of the Code.
Estimated Expense Amount. Has the meaning specified in Section
10.01(a) of the Participation Agreement.
Event of Default. Each of the events specified in Article 16 of the
Lease.
Event of Loss. Any of the following events with respect to the
Aircraft, the Airframe or any Engine: (i) loss of such property or its use (A)
due to theft or disappearance for a period in excess of 30 days (or such
longer period not to exceed 60 days from the end of such 30 day period if and
so long as the location of such property is known and the Lessee is pursuing
the recovery thereof) or to the end of the Term, if less, unless such event
constitutes an Event of Loss under clause (i)(B) or clause (ii) below, or (B)
due to the destruction, damage beyond economic repair or rendition of such
property permanently unfit for normal use by Lessee for any reason whatsoever;
(ii) any damage to such property which results in an insurance settlement with
respect to such property on the basis of a total loss, or constructive or
compromised total loss; (iii) (1) condemnation, confiscation or seizure of, or
requisition of title to such property by the Government, any foreign
government or purported government or any agency or instrumentality thereof,
or (2) condemnation, confiscation, or seizure of, or requisition or taking of,
use of such property (A) by a foreign government, or instrumentality or agency
of any such foreign government, or any purported government or instrumentality
or agency thereof for a period in excess of 180 days or the end of the Term,
if less, or (B) by the Government for a period extending beyond the Term
provided that no Event of Loss shall be deemed to have occurred, and the Term
shall be extended automatically for a period of up to six months beyond the
end of the Term in the event that the Aircraft or the Airframe or any Engine
is requisitioned by the Government pursuant to an activation as part of the
CRAF Program described in Section 7.02(a)(iv) of the Lease; or (iv) as a
result of any law, rule, regulation, order or other action by the Aeronautics
Authority or other governmental body having jurisdiction, the use of the
Aircraft or Airframe in the normal course of air transportation of cargo shall
have been prohibited for a period of four (4) consecutive months, unless the
Lessee, prior to the expiration of such four (4) month period, shall be
diligently carrying forward all steps which are necessary and desirable to
permit the normal use of the Aircraft or Airframe provided, however, that an
Event of Loss shall be deemed to have occurred if (x) the Lessee fails to
continue diligently carrying forward all such steps or (y) the use of the
Aircraft or the Airframe in the normal course of air transportation of cargo
shall have been prohibited for a period of an additional 8 months following
such 4 month period or (z) unless waived by the Lessor, the Term shall have
expired. The date of such Event of Loss shall be (t) the 30th day or the 90th
day, as the case may be, following loss of such property or its use due to
theft or disappearance; (u) the date of any destruction, damage beyond
economic repair or rendition of such property permanently unfit for normal
use; (v) the date of any insurance settlement on the basis of a total loss or
constructive or compromised total loss; (w) the date of any condemnation,
confiscation, seizure or requisition of title of such property; (x) the
earlier of the 181st day following condemnation, confiscation, seizure or
requisition for use of such property by a foreign government or
instrumentality or agency thereof or the end of the Term; (y) the last day of
the Term in the case of requisition for use of such property by the Government
or (z) the last day of the 4 month or additional 8 month period, referred to
in clause (iv) above or, if earlier, the last day of the Term (unless waived
by the Lessor). An Event of Loss with respect to the Aircraft shall be deemed
to have occurred if any Event of Loss occurs with respect to the Airframe.
Excepted Payments. Collectively, (i) indemnity or other payments of
expenses paid or payable by the Lessee in respect of the Owner Participant,
the Owner Trustee in its individual capacity or any of their respective
successors, permitted assigns, directors, officers, employees, servants and
agents or Affiliates, pursuant to Article 8, 9, or 10 or any indemnity
hereafter granted to the Owner Participant or the Owner Trustee in its
individual capacity pursuant to Section 7.01(e), Article 9 or Section 11.03(a)
of the Lease, (ii) proceeds of public liability insurance (or government
indemnities in lieu thereof) in respect of the Aircraft payable as a result of
insurance claims paid for the benefit of, or losses suffered by, the Owner
Trustee or the Indenture Trustee in their respective individual capacities or
by the Owner Participant, or their respective successors, permitted assigns or
Affiliates, (iii) proceeds of insurance maintained with respect to the
Aircraft by the Owner Participant (whether directly or through the Owner
Trustee) maintained in accordance with the provisions of but not required
under Article 13 of the Lease, (iv) all right, title and interest of the Owner
Participant in, to and under the Tax Indemnity Agreement and payments of
Supplemental Rent by the Lessee in respect of any amounts payable under the Tax
Indemnity Agreement, (v) any amounts payable by the Lessee to the Owner
Participant or the Owner Trustee in its individual capacity, after the release
thereof from the Lien of the Indenture, (vi) subject to Section 3.05 of the
Lease, payments constituting increases in Basic Rent attributable to payments
arising pursuant to Section 5 of the Tax Indemnity Agreement, (vii) any right
to demand, collect or otherwise receive and enforce the payment of any amount
described in clauses (i) through (vi) above and (viii) any payments in respect
of interest to the extent attributable to the payments referred to in clauses
(i) through (vi) above.
Expense; Expenses. Have the meaning specified in Section 9.01(a) of
the Participation Agreement.
FAA Bill of Sale. The bill of sale for the Airframe on AC Form
8050-2, or such other form as may be approved by the Aeronautics Authority,
executed by the Lessee in favor of the Owner Trustee and to be dated the
Delivery Date.
Fair Market Renewal Term. A term with respect to which the Lessee has
exercised its option to renew the Lease pursuant to the second paragraph of
Section 4.01(a) thereof and with respect to which the conditions set forth in
such Section 4.01(a) are met.
Fair Market Rental. An amount determined on the basis of, and equal
in amount to, the rental which would be obtained in an arm's-length
transaction between an informed and willing lessee and an informed and willing
lessor unaffiliated with such lessee, neither being under any compulsion to
lease. In such determination, except for purposes of Section 17.01 of the
Lease, it shall be assumed that the Aircraft is in at least the condition
required under the Lease in the case of return of the Aircraft pursuant to
Article 12 of the Lease and Fair Market Rental shall be determined in
accordance with the provisions of Section 4.03 of the Lease. For purposes of
Section 17.01 of the Lease, such determination shall be made on an "as is,
where is" basis by a qualified independent appraiser selected by the Lessor
and the costs and expenses of the appraisal shall be borne by the Lessee,
unless the Lessor has not obtained possession of the Aircraft pursuant to such
Section 17.01, in which case an appraiser shall not be appointed and such Fair
Market Rental shall be deemed to be zero.
Fair Market Value. An amount determined on the basis of, and equal
in amount to, the value which would be obtained in an arm's-length transaction
between an informed and willing purchaser under no compulsion to buy and an
informed and willing seller unaffiliated with such purchaser and under no
compulsion to sell, assuming the Aircraft (or other property) is unencumbered
by the Lease. In such determination, except for purposes of Section 17.01 of
the Lease, it shall be assumed that the Aircraft is in at least the condition
required under the Lease in the case of return of the Aircraft pursuant to
Article 12 of the Lease and Fair Market Value shall be determined in
accordance with the provisions of Section 4.03 of the Lease. For purposes of
Section 17.01 of the Lease, such determination shall be made on an "as is,
where is" basis by a qualified independent appraiser selected by the Lessor
and the costs and expenses of the appraisal shall be borne by the Lessee,
unless the Lessor has not obtained possession of the Aircraft free and clear
of all Liens and unencumbered by the Lease pursuant to such Section 17.01, in
which case an appraiser shall not be appointed and such Fair Market Value
shall be deemed to be zero.
Federal Aviation Administration; FAA. The United States Federal
Aviation Administration and any successor agency or agencies thereto.
Final Drawing. Has the meaning specified in Section 1.01 of the
Intercreditor Agreement.
Fixed Renewal Rent. Semi-annual payments of rent during the Fixed
Renewal Term equal to the lesser of (i) Fair Market Rental as determined as of
the commencement of such Fixed Renewal Term and (ii) the amount set forth in
Ancillary Agreement I.
Fixed Renewal Term. The term with respect to which the Lessee has
exercised its option to renew the Lease pursuant to the first paragraph of
Section 4.01(a) thereof and with respect to which the conditions set forth in
such Section 4.01(a) are met.
FSB. First Security Bank, National Association, a national banking
association.
Government. The United States of America or an agency or
instrumentality thereof the obligations of which bear the full faith and
credit of the United States of America.
GTA. The General Terms Agreement dated as of July 3, 1991 between the
Engine Manufacturer and the Lessee related to the purchase by the Lessee of the
Engines as originally executed or as modified, amended or supplemented in
accordance with the terms thereof, but only insofar as the General Terms
Agreement relates to the Engines, to the extent assigned to the Owner Trustee
pursuant to the Engine Warranty Assignment.
Holder of a Certificate; Certificate Holder; Holder. As of any
particular time, the Person in whose name a Certificate shall be registered
(but not including the holder of any Pass Through Certificate).
Indemnitee. Each of SSB, in its individual capacity and as Owner
Trustee and Lessor, the Subordination Agent, in its individual capacity and in
its capacity as Subordination Agent, each Liquidity Provider, the Owner
Participant, the Indenture Trustee, in its individual capacity and as trustee,
and any successor (including any trustee which may succeed to the Lessor's
interest under the Lease), Affiliate, assign, officer, director, employee,
agent and servant of any of the foregoing, the Lessor's Estate and the Trust
Indenture Estate. Neither the Pass Through Trustee nor any holder of a Pass
Through Certificate shall be deemed to be an Indemnitee.
Indenture. The Trust Indenture and Security Agreement (Federal
Express Corporation Trust No. N584FE), dated as of May 1, 1997, between the
Lessor and the Indenture Trustee, as supplemented by the Indenture and
Security Agreement Supplement.
Indenture and Security Agreement Supplement. The Indenture and
Security Agreement Supplement No. 1 (Federal Express Corporation Trust No.
N584FE) to be dated the Delivery Date, substantially in the form of Exhibit A
to the Indenture.
Indenture Default. Any event or condition which, with the lapse of
time or the giving of notice, or both, would constitute an Indenture Event of
Default.
Indenture Documents. Has the meaning specified in the Granting
Clause of the Indenture.
Indenture Event of Default. Each of the events specified in Section
7.01 of the Indenture.
Indenture Trustee. First Security Bank, National Association, a
national banking association, not in its individual capacity but solely as
Indenture Trustee under the Indenture.
Indenture Trustee's Liens. Any Lien against, on or with respect to
the Aircraft, the Lessor's Estate or the Trust Indenture Estate or any part
thereof resulting from (i) claims against the Indenture Trustee not related to
the administration of the Trust Indenture Estate or any transactions pursuant
to the Indenture or any document included in the Trust Indenture Estate, (ii)
any act or omission of the Indenture Trustee which is not related to the
transactions contemplated by the Operative Agreements or is in violation of
any of the terms of the Operative Agreements or (iii) Taxes imposed against
the Indenture Trustee in its individual capacity against which the Lessee has
not indemnified (and is not obligated to indemnify) the Indenture Trustee in
such capacity.
Independent Appraisal. An appraisal conducted pursuant to Section
4.03 of the Lease.
Independent Investment Banker. An independent investment banking
institution of national standing appointed by the Lessee that is independent
in fact, does not have any direct financial interests, or any material
indirect financial interest, in the Lessee or any Affiliate of the Lessee, and
is not connected with the Lessee or any Affiliate of the Lessee, as an
officer, employee, promoter, underwriter, trustee, partner, director or Person
performing similar functions; provided, that if the Indenture Trustee shall
not have received written notice of such an appointment at least 10 days prior
to the Prepayment Date, "Independent Investment Banker" shall mean such an
institution appointed by the Indenture Trustee.
Initial Owner Participant. Federal Express Corporation, a Delaware
corporation.
Intercreditor Agreement. The Intercreditor Agreement dated as of May
1, 1997, among the Pass Through Trustee, the Class A Liquidity Provider, the
Class B Liquidity Provider and the Subordination Agent.
Interest Drawing. Has the meaning specified in Section 1.01 of the
Intercreditor Agreement.
Invoice. The invoice for the Aircraft given by the Lessee to the
Lessor.
Lease. The Lease Agreement (Federal Express Corporation Trust No.
N584FE) dated as of May 1, 1997, entered into by the Lessor and the Lessee
concurrently with the execution and delivery of the Indenture, including,
without limitation, supplementation by one or more Lease Supplements entered
into pursuant to the applicable provisions of the Lease.
Lease Supplement. The Lease Supplement No. 1 (Federal Express
Corporation Trust No. N584FE) to be dated the Delivery Date, substantially in
the form of Exhibit A to the Lease.
Lease Term. The period commencing on the Delivery Date and ending at
the end of the Basic Term.
Lessee. Federal Express Corporation, a Delaware corporation.
Lessee Documents. Has the meaning set forth in Section 6.01(b) of the
Participation Agreement.
Lessor. State Street Bank and Trust Company of Connecticut, National
Association, a national banking association, not in its individual capacity
but solely as Owner Trustee under the Trust Agreement.
Lessor's Estate. All estate, right, title and interest of the Owner
Trustee in and to the Collateral Account, the Liquid Collateral, the Aircraft,
the Lease, any Lease Supplement, the Participation Agreement, the Bills of
Sale, the Modification Agreement, the GTA, the Engine Warranty Assignment, the
Engine Consent, any warranty with respect to the Airframe and the Engines, all
amounts of Basic Rent, Renewal Rent and Supplemental Rent, including without
limitation, insurance proceeds (other than insurance proceeds payable to or
for the benefit of either the Owner Trustee in its individual capacity or the
Owner Participant) and requisition, indemnity or other payments of any kind
for or with respect to the Aircraft (except amounts owing to the Owner
Participant or to the Owner Trustee in its individual capacity, or to any of
their respective directors, officers, employees and agents pursuant to
Articles 8 and 9 of the Participation Agreement). Notwithstanding the
foregoing, "Lessor's Estate" shall not include any Excepted Payment.
Lessor's Liens. Liens against, on or with respect to the Aircraft,
the Lessor's Estate or the Trust Indenture Estate or any part thereof, title
thereto or any interest therein arising as a result of (i) claims against the
Lessor, in its individual capacity or as Owner Trustee, the Owner Participant
or any Affiliate of such Owner Participant, in each case not related to the
transactions contemplated by the Operative Agreements, (ii) acts or omissions
of the Lessor in its individual capacity or as Owner Trustee, and, in the case
of the Lessor in its individual capacity, arising from its gross negligence or
willful misconduct either not related to the transactions contemplated by or
expressly prohibited under the Operative Agreements and any act or omission of
the Owner Participant or any Affiliate of such Owner Participant which is not
related to the transactions contemplated by the Operative Agreements or is in
violation of any of the terms of the Operative Agreements, (iii) Taxes or
Expenses imposed against the Lessor, in its individual capacity or as Owner
Trustee, or the Owner Participant or any Affiliate of such Owner Participant,
the Lessor's Estate or the trust created by the Trust Agreement which are not
required to be indemnified against by the Lessee pursuant to the Tax Indemnity
Agreement or by reason of Section 8.01(b) or 9.01(b) of the Participation
Agreement, or (iv) claims against the Lessor or the Owner Participant arising
from the voluntary transfer by the Lessor or the Owner Participant of its
interests in the Aircraft other than a transfer of the Aircraft resulting from
an action or at the direction of the Lessee pursuant to Section 4.02(a) or
Article 8, 9, 10 or 11 of the Lease and other than a transfer pursuant to the
exercise of the remedies set forth in Article 17 of the Lease.
Lien. Any mortgage, pledge, lien, charge, encumbrance, lease or
security interest or other similar interest.
Liquid Collateral. All amounts and securities deposited from time to
time in the Collateral Account and all the products, investments, earnings and
proceeds of the foregoing, including, but not limited to, all proceeds of the
investment or conversion thereof, voluntary or involuntary, into cash,
Specified Investments or other property, all rights to payment of any and
every kind, and other forms of obligations, and instruments and other property
which at any time constitute all or part or are included in the proceeds of
any of the foregoing.
Liquidity Facility. Has the meaning specified in Section 1.01 of the
Intercreditor Agreement.
Liquidity Provider. Has the meaning specified in Section 1.01 of the
Intercreditor Agreement.
Losses. Has the meaning specified in Section 17.02(a) of the
Participation Agreement.
Loss Payee. Has the meaning specified in Section 13.02(b)(i) of the
Lease.
Majority in Interest of Certificate Holders. As of a particular date
of determination, the Holders of more than 50% of the aggregate unpaid
principal amount of all Certificates outstanding as of such date excluding for
purposes of this definition any Certificates held by (i) the Owner Trustee or
the Owner Participant unless all Certificates then outstanding shall be held
by such Owner Participant, (ii) the Lessee or (iii) any Affiliate of any
thereof.
Make-Whole Premium. An amount determined as of the day before the
applicable Prepayment Date (or date of purchase, as the case may be) which an
Independent Investment Banker determines to be equal to the excess, if any, of
(i) the present value of the remaining scheduled payments of such principal
amount or portion thereof and interest thereon (excluding interest accrued
from the immediately preceding Payment Date to such Prepayment Date or date of
purchase, as the case may be) to the Maturity of such Certificate in
accordance with generally accepted financial practices assuming a 360-day year
consisting of twelve 30-day months at a discount rate equal to the Treasury
Yield, all as determined by the Independent Investment Banker over (ii) the
outstanding principal amount of such Certificate plus accrued interest.
Mandatory Document Terms. The terms set forth on Schedule V to the
Participation Agreement.
Mandatory Economic Terms. The terms set forth on Schedule VI to the
Participation Agreement.
Manufacturer. McDonnell Douglas Corporation, a Maryland corporation.
Maturity. With respect to any Certificate, the date on which the
final principal amount of such Certificate is scheduled to be due and payable.
Modification Agreement. The Aircraft Modification Agreement dated as
of December 1, 1995 between the Lessee and the Manufacturer providing for the
refurbishing and reconfiguration of the Aircraft including any warranties
relating thereto, but only to the extent that the foregoing relates to the
Aircraft, to the extent assigned to the Owner Trustee pursuant to the Warranty
Bill of Sale.
Moody's. Moody's Investors Service, Inc.
Net Present Value of Rents. The net present value, as of the
Delivery Date, of Basic Rent set forth in Schedule II of the Lease, discounted
at a rate per semi-annual period equal to the Debt Rate.
Non-U.S. Person. Any Person other than a U.S. Person.
Obsolete Parts. Parts which the Lessee in good faith determines to be
obsolete or no longer suitable or appropriate for use on the Airframe or any
Engine.
Officer's Certificate. When delivered pursuant to the Indenture, a
certificate signed by a Responsible Officer of the Lessee or the Owner
Trustee, as the case may be, and delivered to the Indenture Trustee. Each
such certificate shall include the statements provided for in Section 15.07 of
the Indenture.
Operative Agreements. The Participation Agreement, the Trust
Agreement, the Bills of Sale, the Modification Agreement, the GTA, the Engine
Warranty Assignment, the Lease, the Lease Supplement, the Owner Trustee
Guaranty, if any, any Ancillary Agreement entered into by or with the written
consent of the Indenture Trustee, which by its terms is an Operative
Agreement, the Certificates outstanding at the time of reference, the
Indenture, the Indenture and Security Agreement Supplement, the Engine
Consent, each Liquidity Facility, the Intercreditor Agreement, the Collateral
Account Control Agreement and the Tax Indemnity Agreement.
Opinion of Counsel. When delivered pursuant to the Indenture, a
written opinion of legal counsel, who in the case of counsel (a) for the
Lessee may be (i) an attorney employed by the Lessee who is generally
empowered to deliver such written opinions, (ii) Davis Polk & Wardwell or a
successor firm or (iii) other counsel designated by the Lessee and reasonably
satisfactory to the Indenture Trustee and (b) for the Owner Trustee or the
Indenture Trustee, an attorney selected by such Person and, in the case of the
Owner Trustee, reasonably satisfactory to the Indenture Trustee.
Outstanding. When used with respect to Certificates, as of the date
of determination and subject to the provisions of Section 10.04 of the
Indenture, all Certificates theretofore executed and delivered under the
Indenture, with the exception of the following:
(i) Certificates theretofore cancelled by the Indenture Trustee or
delivered to the Indenture Trustee for cancellation pursuant to
Section 2.08 of the Indenture or otherwise;
(ii) Certificates for which prepayment money in the necessary amount
has been theretofore deposited with the Indenture Trustee in trust
for the Holders of such Certificates pursuant to Section 14.01 of the
Indenture; provided, that if such Certificates are to be prepaid,
notice of such prepayment has been duly given pursuant to the
Indenture or provision therefor satisfactory to the Indenture Trustee
has been made; and
(iii) Certificates in exchange for or in lieu of which other
Certificates have been executed and delivered pursuant to Article II
of the Indenture.
Owner Participant. The Person to whom on the Delivery Date (or, if
earlier, the Transfer Date) the Initial Owner Participant shall transfer its
Beneficial Interest pursuant to Section 3.02 of the Participation Agreement
and any successors thereto, and any Person to which the Owner Participant
transfers, in accordance with the Trust Agreement, its right, title and
interest in and to the Operative Agreements and the Lessor's Estate.
Owner Trustee. SSB, not in its individual capacity except as
otherwise expressly stated, but solely as Owner Trustee under the Trust
Agreement.
Owner Trustee Guarantor. The provider, if any, of an Owner Trustee
Guaranty.
Owner Trustee Guaranty. Any guaranty delivered in compliance with
Section 11.01(b)(ii) of the Participation Agreement.
Owner's Economic Return. The Owner Participant's anticipated net
after-tax yield and aggregate after-tax cash flow during the Basic Term,
utilizing the multiple investment sinking fund method of analysis, computed on
the basis of the same methodology and assumptions as were utilized by the
Owner Participant in determining Basic Rent, Stipulated Loss Value and
Termination Value percentages and EBO Price, as such assumptions may be
adjusted for events which have been the basis of adjustments to Rent pursuant
to Section 3.04 of the Lease.
Participation Agreement. The Participation Agreement (Federal Express
Corporation Trust No. N584FE), dated as of May 1, 1997, among the Lessee, the
Owner Trustee not in its individual capacity except as otherwise expressly
provided therein, but solely as owner trustee, the Owner Participant, the
Indenture Trustee not in its individual capacity except as otherwise expressly
provided therein, but solely as indenture trustee, the Pass Through Trustee
not in its individual capacity except as otherwise expressly provided therein,
but solely as pass through trustee and the Subordination Agent not in its
individual capacity except as otherwise expressly provided therein, but solely
as subordination agent.
Parts. All appliances, parts, components, instruments, appurtenances,
accessories, furnishings and other equipment of whatever nature (other than
complete Engines or engines) which may from time to time be incorporated or
installed in or attached to the Airframe or any Engine or title to which
remains vested in the Lessor pursuant to Article 8 of the Lease.
Pass Through Agreement. The Pass Through Trust Agreement dated as of
May 1, 1997 between the Lessee and the Pass Through Trustee.
Pass Through Certificates. Any of the Pass Through Certificates,
1997-1-A, the Pass Through Certificates, 1997-1-B or the Pass Through
Certificates, 1997-1-C, in each case as issued by the related Pass Through
Trust; and "Pass Through Certificates" means all of the Pass Through
Certificates issued by each of the Pass Through Trusts.
Pass Through Closing Date. The Business Day on which the sale of the
Pass Through Certificates to the Underwriters pursuant to the Underwriting
Agreement takes place.
Pass Through Trust. The Federal Express Corporation 1997-1 Pass
Through Trust Class A, Federal Express Corporation 1997-1 Pass Through Trust
Class B and Federal Express Corporation 1997-1 Pass Through Trust Class C, in
each case formed pursuant to the related Series Supplement in accordance with
the Pass Through Agreement; and "Pass Through Trusts" means all of such Pass
Through Trusts.
Pass Through Trustee. First Security Bank, National Association, a
national banking association, in its capacity as Pass Through Trustee under
the Pass Through Agreement and each Pass Through Trust.
Past Due Rate. In respect of (A) any amount payable to the Owner
Participant or the Owner Trustee a rate per annum during the period from and
including the due date to but excluding the date on which such amount is paid
in full equal to 2% plus the Debt Rate and (B) any principal of or interest on
any Certificate or any other amount payable under the Indenture, any
Certificate or any other Operative Agreement that is not paid when due
(whether at Maturity, by acceleration, by optional or mandatory prepayment or
otherwise) to any Holder, the Indenture Trustee or the Pass Through Trustee, a
rate per annum during the period from and including the due date to but
excluding the date on which such amount is paid in full equal to (i) in the
case of any such amount payable to the Holder of any Certificate, 2% plus the
interest rate applicable to such Certificate and (ii) in the case of any other
such amount, 2% plus the Debt Rate.
Payment Date. Each January 15 and July 15 commencing on July 15,
1997.
Payment Default. Any event specified in Section 16.01(a) or 16.01(b)
of the Lease which with the giving of notice or lapse of time or both would
constitute an Event of Default.
Permitted Investments. Those investments enumerated in Section
23.01(a) (i), (ii), (iii) and (iv) of the Lease.
Person. Any individual, sole proprietorship, partnership, joint
venture, joint stock company, trust, unincorporated organization, association,
corporation, institution, entity or government (federal, state, local, foreign
or any agency, instrumentality, division or body thereof).
Preliminary Notice. Has the meaning specified in Section 4.01(a) of
the Lease.
Premium Termination Date. With respect to the Series A Certificates,
December 27, 2011, with respect to the Series B Certificates, February 5, 2010
and with respect to the Series C Certificates, March 22, 2007.
Prepayment Date. Has the meaning specified in Section 6.02(b) of the
Indenture.
Prepayment Price. Has the meaning specified in Section 6.02(b) of the
Indenture.
Principal Amount. With respect to a Certificate means the stated
original principal amount of such Certificate and, with respect to all
Certificates, means the aggregate stated original principal amounts of all
Certificates.
Property. Any right or interest in or to property of any kind
whatsoever, whether real, personal or mixed and whether tangible or intangible.
Proposed Termination Date. Has the meaning specified in Section
10.01(a) of the Lease.
Purchase Price. The amount specified as such in Ancillary Agreement
I.
Rating Agencies. Collectively, at any time, each nationally
recognized rating agency which shall have been requested to rate the Pass
Through Certificates and which shall then be rating the Pass Through
Certificates. The initial Rating Agencies will be Moody's and S&P.
Rating Agency Confirmation. With respect to any Operative Agreement
that is to be modified in any material respect on the Delivery Date or the
Transfer Date, if applicable, a written confirmation from each of the Rating
Agencies that the use of such Operative Agreement with such modifications
would not result in (i) a reduction of the rating for any Class of Pass
Through Certificates below the then current rating for such Class of Pass
Through Certificates or (ii) a withdrawal or suspension of the rating of any
Class of Pass Through Certificates.
Record Date. With respect to Payment Dates under the Indenture
(except a date for payment of defaulted interest), December 31 for January 15
Payment Dates and June 30 for July 15 Payment Dates, whether or not such date
is a Business Day.
Recourse Amount. Has the meaning specified in Section 17.10 of the
Participation Agreement.
Refinancing. A non-recourse loan to the Lessor arranged pursuant to
Section 15.01 of the Participation Agreement.
Register. Has the meaning set forth in Section 3.02 of the Indenture.
Registrar. Has the meaning set forth in Section 3.02 of the
Indenture.
Regulation D. Regulation D of the Board of Governors of the Federal
Reserve System (or any successor), as the same may be modified and
supplemented and in effect from time to time.
Remaining Weighted Average Life. On a given date with respect to any
Certificate the number of days equal to the quotient obtained by dividing (i)
the sum of each of the products obtained by multiplying (a) the amount of each
then remaining scheduled payment of principal of such Certificate by (b) the
number of days from and including such prepayment date to but excluding the
dates on which each such payment of principal is scheduled to be made; by (ii)
the then outstanding principal amount of such Certificate.
Renewal Rent. The amount payable by the Lessee as rent in accordance
with Section 4.01 of the Lease during any Renewal Term.
Renewal Term. Any Fixed Renewal Term or Fair Market Renewal Term with
respect to which the Lessee has exercised its option to renew the Lease
pursuant to Section 4.01(a) thereof.
Rent. All payments due from the Lessee under the Lease as Basic Rent,
Renewal Rent and Supplemental Rent, collectively.
Rent Payment Date. June 15, 2019 and each January 15 and July 15
commencing on January 15, 1998, and continuing thereafter during the Term.
Reoptimization Date. Has the meaning set forth in Section 2.03(b) of
the Participation Agreement.
Replacement Aircraft. Any aircraft substituted for the Aircraft
pursuant to Section 11.03(a) of the Lease.
Replacement Airframe. Has the meaning set forth in Section 11.03 of
the Lease.
Replacement Engine. A General Electric CF6-80C2-D1F engine (or an
engine of the same or another manufacturer) of equal or greater value,
remaining useful life and utility as the Engine being replaced, together with
all Parts relating to such engine; provided, however, that if such replacement
engine is not a General Electric CF6-80C2-D1F engine, such replacement engine
must then be commonly used in the commercial aviation industry on McDonnell
Douglas MD-11 airframes.
Responsible Officer. With respect to the Owner Trustee (except for
purposes of the Trust Agreement in which case the definition of Responsible
Officer set forth in Section 3.10 of the Trust Agreement is applicable) or the
Indenture Trustee, any officer in its Corporate Trust Administration, as the
case may be, designated by such Person to perform obligations under the
Operative Agreements, and with respect to any other party, any corporate
officer or (except in the case of the Owner Participant) other employee of a
party who, in the normal performance of his or her operational
responsibilities, with respect to the subject matter of any covenant,
agreement or obligation of such party pursuant to any Operative Agreement,
would have responsibility for and knowledge of such matter and the
requirements of any Operative Agreement with respect thereto.
S&P. Standard & Poor's Ratings Group.
Scheduled Delivery Date. The Delivery Date specified in the Delivery
Notice pursuant to Section 3.01 of the Participation Agreement.
SEC. The Securities and Exchange Commission of the United States and
any successor agencies or authorities.
Secured Obligations. Has the meaning specified in the Granting
Clause of the Indenture.
Securities Act. The Securities Act of 1933, as amended.
Series "A" or "Series A Certificates". Certificates issued and
designated as "Series A" under the Indenture, in the Principal Amount and
maturities and bearing interest as specified in Exhibit B to the Indenture
under the heading "Series A".
Series "B" or "Series B Certificates". Certificates issued and
designated as "Series B" under the Indenture, in the Principal Amount and
maturities and bearing interest as specified in Exhibit B to the Indenture
under the heading "Series B".
Series "C" or "Series C Certificates". Certificates issued and
designated as "Series C" under the Indenture, in the Principal Amount and
maturities and bearing interest as specified in Exhibit B to the Indenture
under the heading "Series C".
Series Supplement or Series Supplements. The Series Supplement
1997-1-A to be executed and delivered by the Lessee and the Pass Through
Trustee, the Series Supplement 1997-1-B to be executed and delivered by the
Lessee and the Pass Through Trustee or the Series Supplement 1997-1-C to be
executed and delivered by the Lessee and the Pass Through Trustee.
Sinking Fund Redemption Date. Has the meaning specified in Section
6.06 of the Indenture.
Sinking Fund Redemption Price. Has the meaning specified in Section
6.06 of the Indenture.
Special Aviation Counsel. Daugherty, Fowler & Peregrin.
Specified Investments. Shall mean (a) direct obligations of the
United States of America or obligations fully guaranteed by the United States
of America; (b) commercial paper rated A-1/P-1 by S&P and Moody's,
respectively or, if such ratings are unavailable, rated by any nationally
recognized rating organization in the United States equal to the highest
rating assigned by such rating organization; (c) investments in negotiable
certificates of deposit, time deposits, banker's acceptances, commercial paper
or other direct obligations of, or obligations guaranteed by, commercial banks
organized under the laws of the United States or of any political subdivision
thereof (or any U.S. branch of a foreign bank) with issuer ratings of at least
B/C by Thomson Bankwatch, having maturities no later than 90 days following
the date of such investment; (d) overnight federal funds transactions with
members of the Federal Reserve System arranged by federal funds brokers; or
(e) overnight repurchase agreements with respect to the securities described
in clause (a) above entered into with an office of a bank or trust company
which is located in the United States of America or any bank or trust company
which is organized under the laws of the United States or any state thereof
and has capital, surplus and undivided profits aggregating at least $500
million.
SSB. State Street Bank and Trust Company of Connecticut, National
Association, a national banking association.
Stipulated Loss Value. As of any Stipulated Loss Value Determination
Date during the Basic Term, the amount determined by multiplying the Purchase
Price by the percentage set forth in Schedule III of the Lease under the
heading "Stipulated Loss Value Factor" opposite such date (as such Schedule
III may be adjusted from time to time as provided in Section 3.04 of the
Lease), and during any Renewal Term, the amount determined pursuant to Section
4.01(b) of the Lease. Notwithstanding any other provisions of the Lease or
the Participation Agreement or the Indenture, each Stipulated Loss Value for
the Aircraft shall be, under any circumstances and in any event, an amount,
together with so much of the arrears portion of Basic Rent due and owing
through the date of payment of Stipulated Loss Value as does not constitute an
Excepted Payment, at least sufficient to pay in full as of such date of
payment the aggregate unpaid principal amount of and accrued interest on the
Certificates outstanding on such date of payment. Subject to the immediately
preceding sentence, it is understood and agreed that the amounts set forth on
Schedule III of the Lease, for dates other than Rent Payment Dates on which
arrears Basic Rent is due, fully reflect appropriate Basic Rent accruals and
credits of unearned Basic Rent and, accordingly, no further accrual or credit
shall be required whenever Stipulated Loss Value is to be calculated with
reference to any such date.
Stipulated Loss Value Determination Date. Each date set forth on
Schedule III of the Lease.
Subordination Agent. First Security Bank, National Association, a
national banking association, not in its individual capacity but solely as
Subordination Agent.
Supplemental Rent. (a) All amounts, liabilities and obligations
which the Lessee assumes or agrees to perform or pay under the Lease or under
the Participation Agreement or Tax Indemnity Agreement or any Ancillary
Agreement or any other Operative Agreement to SSB, the Lessor, the Owner
Participant, the Indenture Trustee, the Subordination Agent, any Liquidity
Provider or others, including, without limitation, payments of Stipulated Loss
Value, EBO Price and amounts calculated by reference to Termination Value, and
all amounts required to be paid by Lessee under the agreements, covenants and
indemnities contained in the Lease or in the Participation Agreement or the
Tax Indemnity Agreement or any other Operative Agreement, but excluding Basic
Rent and (b) all amounts that the Owner Trustee is obligated to pay in
accordance with clause (b) of the last paragraph of Section 2.04 of the
Indenture.
Tax. Has the meaning set forth in Section 8.01(a) of the
Participation Agreement.
Tax Indemnity Agreement. The Tax Indemnity Agreement (Federal
Express Corporation Trust No. N584FE), dated as of May 1, 1997, between the
Lessee and the Owner Participant.
Term. The Basic Term and any Renewal Term unless the Lease is
terminated earlier pursuant to its terms.
Termination Date. A Rent Payment Date during the Basic Term that is
on or after the fifth anniversary of the Delivery Date in the case of Article
10 of the Lease, and in the case of (i) Section 4.02(a)(A) of the Lease the
Rent Payment Date falling on June 15, 2011 or January 15, 2016, as the case
may be, (ii) Section 4.02(a)(D) or (E) of the Lease, a Rent Payment Date that
is on or after the fifth anniversary of the Delivery Date and (iii) Section
4.02(a)(F) of the Lease, January 15, 2014.
Termination Value. As of any Termination Date, the amount determined
by multiplying the Purchase Price by the percentage set forth in Schedule IV
of the Lease under the heading "Termination Value Factor" opposite such
Termination Date (as such Schedule IV may be adjusted from time to time as
provided in Section 3.04 of the Lease). Notwithstanding any other provisions
of the Lease, the Participation Agreement or the Indenture, each Termination
Value shall be, under any circumstances and in any event, an amount, together
with so much of the arrears portion of Basic Rent due and owing through the
date of payment of any amount calculated by reference to Termination Value as
does not constitute an Excepted Payment, at least sufficient to pay in full as
of such date of payment the aggregate unpaid principal amount of and accrued
interest on the Certificates outstanding on such date of payment. Subject to
the immediately preceding sentence, it is understood and agreed that the
amounts set forth on Schedule IV of the Lease, for dates other than Rent
Payment Dates on which arrears Basic Rent is due, fully reflect appropriate
Basic Rent accruals and credits of unearned Basic Rent and, accordingly, no
further accrual or credit shall be required whenever Termination Value is to
be calculated with reference to any such date.
Transfer Date. Has the meaning set forth in Section 2.02(b) of the
Participation Agreement.
Transaction Costs. Those costs and expenses set forth in Section
10.01(a) of the Participation Agreement.
Transportation Code. Title 49 of the United States Code, as amended
and in effect on the date of the Lease or as subsequently amended, or any
successor or substituted legislation at the time in effect and applicable, and
the regulations promulgated pursuant thereto.
Treasury Yield. At the time of determination with respect to any
Certificate, the interest rate (expressed as a semi-annual equivalent and as a
decimal and, in the case of United States Treasury bills, converted to a bond
equivalent yield) determined to be the per annum rate equal to the semi-annual
yield to maturity for United States Treasury securities maturing on the
Average Life Date on such Certificate and trading in the public securities
markets either as determined by interpolation between the most recent weekly
average yield to maturity for two series of United States Treasury securities,
trading in public securities markets, (i) one maturing as close as possible to,
but earlier than, the Average Life Date of such Certificate and (ii) the other
maturing as close as possible to, but later than, the Average Life Date of
such Certificate. In each case as published in the most recent H.15(519) or,
if a weekly average yield to maturity for United States Treasury securities
maturing on the Average Life Date of such Certificate is reported on the most
recent H.15 (519), such weekly average yield to maturity as published in such
H.15(919). "H.15(519)" means the weekly statistical release designated as
such, or any successor publication, published by the Board of Governors of the
Federal Reserve System. The date of determination of a Make-Whole Premium
will be the third Business Day prior to the applicable prepayment date and the
"most recent H.15(519)" means the H.15(519) published prior to the close of
business on the third Business Day prior to the applicable prepayment date.
Trust Agreement. The Trust Agreement (Federal Express Corporation
Trust No. N584FE), dated as of May 1, 1997, between the Owner Participant and
the Owner Trustee in its individual capacity.
Trust Estate. The Lessor's Estate.
Trust Indenture Act. The Trust Indenture Act of 1939, as amended.
Trust Indenture Estate. All estate, right, title and interest of the
Indenture Trustee in and to any of the property, rights, interests and
privileges granted to the Indenture Trustee pursuant to the Granting Clause of
the Indenture, other than Excepted Payments and any and all other rights of
the Owner Trustee or the Owner Participant expressly reserved to the Owner
Trustee or the Owner Participant pursuant to the Indenture.
Underwriters. Morgan Stanley & Co. Incorporated, First Chicago
Capital Markets, Inc., Goldman, Sachs & Co. and J.P. Morgan & Co.
Underwriting Agreement. The Underwriting Agreement dated May 22, 1997
among the Lessee and the Underwriters.
United States, U.S. or US. The United States of America.
U.S. Air Carrier. Any United States air carrier as to which there is
in force a certificate issued pursuant to Section 41102(a) or Section 41103 of
the Transportation Code, and as to which there is in force an air carrier
operating certificate issued pursuant to Chapter 447 of the Transportation
Code and Part 121 of the regulations under such Transportation Code, for
aircraft capable of carrying ten (10) or more individuals or 6,000 pounds or
more of cargo, or which may operate as an air carrier by certification or
otherwise under any successor or substitute provision thereof or in absence
thereof.
U.S. Person. A Person described in Section 7701(a)(30) of the Code.
Warranty Bill of Sale. The full warranty bill of sale covering the
Aircraft (and specifically referring to each Engine) executed by the Lessee,
as seller in favor of the Owner Trustee, as buyer, and to be dated the
Delivery Date.
SCHEDULE III
PERMITTED COUNTRY LIST
Australia Luxembourg
Austria Netherlands
Belgium New Zealand
Canada Norway
Denmark Philippines
Finland Portugal
France Republic of China (Taiwan)
Germany Singapore
Greece Sweden
Iceland Switzerland
Ireland Thailand
Japan United Kingdom
SCHEDULE IV
DEBT PORTION
Debt Portion $60,892,000
- ------------
SCHEDULE V
MANDATORY DOCUMENT TERMS
Any amendment and restatement of the Operative Agreements on the Delivery
Date or, if earlier, the Transfer Date:
1. May not modify in any material adverse respect the Granting
Clause of the Indenture so as to deprive the Holders of a first
priority security interest in and mortgage lien on the Aircraft
and the Lease or to eliminate any of the obligations secured
thereby or otherwise modify in any material adverse respect as
regards the interests of the Holders, the Subordination Agent,
the Liquidity Providers or the Indenture Trustee the provisions
of Article II, V or VI or Section 7.01, 7.02, 7.10, 7.11, 9.08,
13.01, 13.02, 13.07 or 15.04 or Article VIII of the Indenture;
2. May not modify in any material adverse respect as regards the
interests of the Holders, the Subordination Agent, the Liquidity
Providers or the Indenture Trustee the provisions of Section
3.05, 3.06, 11.03(a)(x), 13.01(c)(i), the second sentence of
19.01, 20.01, 22.01, 22.03, 26.03, 27.01 or 27.02 of the Lease
or otherwise modify the terms of the Lease so as to deprive the
Indenture Trustee of rights expressly granted to the "Indenture
Trustee" therein;
3. May not modify in any material adverse respect as regards the
interests of the Holders, the Subordination Agent, the Liquidity
Providers or the Indenture Trustee the provisions of Section
4.02(e), 4.02(f), 17.02, 17.11, 17.12 or 17.13 of the
Participation Agreement or of the provisions of Section 4.01(j)
of the Participation Agreement so as to eliminate the
requirement to deliver to the Indenture Trustee the legal
opinions to be provided to such Persons thereunder (recognizing
that the lawyers rendering such opinions may be changed) or of
the provisions of Section 6.03(b) of the Participation
Agreement as regards the rights of the Indenture Trustee
thereunder or otherwise modify the terms of the Participation
Agreement to deprive the Subordination Agent, the Liquidity
Providers or the Indenture Trustee of any indemnity or right of
reimbursement in its favor for Expenses or Taxes;.
4. May not modify in any material adverse respect as regards the
interests of the holders of the Pass Through Certificates, the
Subordination Agent, the Liquidity Providers or the Indenture
Trustee, the definition of "Make-Whole Premium" or
"Supplemental Rent" in Schedule II to the Participation
Agreement; and
5. Shall contain representations and warranties of the Owner
Participant substantially similar to those set forth on Exhibit
A attached hereto.
Notwithstanding the foregoing, any such Mandatory Document Term
may be modified to correct or supplement any such provision which may
be defective or to cure any ambiguity or correct any mistake,
provided that any such action shall not materially adversely affect
the interests of the Holders, the Subordination Agent, the Liquidity
Providers, the Indenture Trustee or the holders of the Pass Through
Certificates.
Exhibit A
to
Schedule V
Section ____. Representations, Warranties and Covenants of Owner
Participant. (a) Representations, Warranties and Covenants. In addition to
and without limiting its other representations and warranties provided for in
this Article __, the Owner Participant represents and warrants that:
(i) it is a corporation duly incorporated and validly existing in
good standing under the laws of the State of ________ and it has full
corporate power, authority and legal right to carry on its present business
and operations, to own or lease its Properties and to enter into and to
carry out the transactions contemplated by this Agreement, the Tax
Indemnity Agreement, the Trust Agreement and the other Operative Agreements
to which it is or is to be a party;
(ii) the execution, delivery and performance by it of this
Agreement, the Tax Indemnity Agreement, the Trust Agreement and the other
Operative Agreements to which it is or is to be a party have been duly
authorized by all necessary corporate action on its part and do not require
any governmental approvals that would be required to be obtained by the
Owner Participant;
(iii) neither the execution, delivery or performance by the Owner
Participant of this Agreement, the Tax Indemnity Agreement, the Trust
Agreement and the other Operative Agreements to which it is or is to be a
party nor compliance with the terms and provisions hereof or thereof,
conflicts or will conflict with or results or will result in a breach or
violation of any of the terms, conditions or provisions of, or will require
any consent or approval under any law, governmental rule or regulation
applicable to the Owner Participant or the charter documents, as amended,
or bylaws, as amended, of the Owner Participant or any order, writ,
injunction or decree of any court or governmental authority against the
Owner Participant or by which it or any of its Properties is bound or any
indenture, mortgage or contract or other agreement or instrument to which
the Owner Participant is a party or by which it or any of its Properties is
bound, or constitutes or will constitute a default thereunder or results or
will result in the imposition of any Lien upon any of its Properties;
(iv) this Agreement, the Tax Indemnity Agreement, the Trust Agreement
and the other Operative Agreements to which it is or is to be a party have
been or on the Delivery Date will be duly executed and delivered by the
Owner Participant and constitute or on the Delivery Date will constitute
the legal, valid and binding obligation of the Owner Participant
enforceable against it in accordance with their terms except as such
enforceability may be limited by bankruptcy, insolvency, moratorium,
reorganization or other similar laws or equitable principles of general
application to or affecting the enforcement of creditors' rights
(regardless of whether enforceability is considered in a proceeding in
equity or at law);
(v) it is not in default under any mortgage, deed of trust,
indenture, lease or other instrument or agreement to which the Owner
Participant is a party or by which it or any of its Properties may be
bound, or in violation of any applicable law, which default or violation
would have a material adverse effect on the financial condition, business
or operations of the Owner Participant or an adverse effect on the ability
of the Owner Participant to perform its obligations under this Agreement
and the other Operative Agreements to which it is or is to be a party;
(vi) there are no pending or, to the knowledge of the Owner
Participant, threatened actions, suits, investigations or proceedings
against the Owner Participant before any court, administrative agency or
tribunal which are expected to materially adversely affect the ability of
the Owner Participant to perform its obligations under any of the Operative
Agreements to which it is or is to be a party, and the Owner Participant
knows of no pending or threatened actions or proceedings before any court,
administrative agency or tribunal involving it in connection with the
transactions contemplated by the Operative Agreements;
(vii) neither the execution and delivery by it of this Agreement,
the Tax Indemnity Agreement, the Trust Agreement or the other Operative
Agreements to which it is or is to be a party nor the performance of its
obligations hereunder or thereunder requires the consent or approval of or
the giving of notice to, the registration with, or the taking of any other
action in respect of, any governmental authority or agency that would be
required to be obtained or taken by the Owner Participant except for
filings contemplated by this Agreement;
(viii) no part of the funds to be used by it to acquire the interests
to be acquired by the Owner Participant under this Agreement constitutes
assets (within the meaning of ERISA and any applicable rules and
regulations) of any employee benefit plan subject to Title I of ERISA or of
any plan or individual retirement account subject to Section 4975 of the
Code;
(ix) it is a "U.S. Person" as defined in Section 7701(a)(30) of the
Code and is not a tax resident of another country and if it shall at any
time cease to be such a "U.S. Person" or shall become a tax resident of
another country, it shall furnish to the Agent and each Loan Certificate
Holder an indemnity, in form and substance reasonably satisfactory to such
Loan Certificate Holder, for any Taxes that may be imposed on such Holder
as a result of the Owner Participant's failure to be such a "U.S. Person"
or as a result of its being a tax resident of another country, and the
Owner Participant shall be personally liable for any debt service to the
extent that the receipt of rentals is reduced by reason of any withholding
Taxes that result from such failure to be such a "U.S. Person" or from
being a tax resident of another country;
(x) it has a consolidated tangible net worth of not less than
$75,000,000; and
(xi) it is or will be a Citizen of the United States on the Delivery
Date or will have in place arrangements which enable the Aircraft to
qualify for registration in the United States.
Notwithstanding the foregoing or anything else contained in this
Agreement, the Owner Participant makes no representation or warranty in this
Agreement with respect to laws, rules or regulations relating to aviation or
to the nature or use of the equipment owned by the Owner Trustee, including,
without limitation, the airworthiness, value, condition, workmanship, design,
patent or trademark infringement, operation, merchantability or fitness for
use of the Aircraft, other than such laws, rules or regulations relating to
the citizenship requirements of the Owner Participant under applicable
aviation law.
(b) Lessor's Liens. The Owner Participant further represents,
warrants and covenants that there are no Lessor's Liens attributable to it (or
an Affiliate thereof) against, on or with respect to the Aircraft or the
Lessor's Estate or the Trust Indenture Estate, and that there will not be any
Lessor's Lien attributable to it (or an Affiliate thereof) against, on or with
respect to the Aircraft or the Lessor's Estate or the Trust Indenture Estate
attributable to it (or an Affiliate thereof) on the [Transfer Date][Delivery
Date. The Owner Participant agrees with and for the benefit of the Lessee,
the Owner Trustee, the Indenture Trustee and the Loan Participants and any
subsequent Holders of the Loan Certificates that the Owner Participant will,
at its own cost and expense, take such action as may be necessary (by bonding
or otherwise, so long as neither the Lessee's operation and use of the
Aircraft nor the validity and priority of the Lien of the Indenture is
impaired) to duly discharge and satisfy in full, promptly after the same first
becomes known to the Owner Participant, any Lessor's Lien against, on or with
respect to the Aircraft or the Lessor's Estate or the Trust Indenture Estate
attributable to the Owner Participant (or an Affiliate thereof), provided,
however, that the Owner Participant shall not be required to discharge or
satisfy such Lessor's Lien which is being contested by the Owner Participant
in good faith and by appropriate proceedings so long as such proceedings do
not involve any material danger of the sale, forfeiture or loss of the
Aircraft or the Lessor's Estate or the Trust Indenture Estate or any interest
in any thereof or otherwise materially adversely affect the validity or
priority of the Lien of the Indenture.
(c) Reimbursement. Without limiting any other rights the parties
hereto may have as a result of any breach by the Owner Participant of its
obligations in Section ____(b) hereof, the Owner Participant agrees to
reimburse each other party hereto for all reasonable legal fees and expenses
of counsel that may be incurred by any such party as a result of the failure
of the Owner Participant to discharge and satisfy any such Lessor's Lien in
accordance with the terms of Section ____(b) hereof.
(d) Assignment of Interests of Owner Participant. At any time after
the Delivery Date, and subject to the conditions set forth in this Section
____(d), the Owner Participant may assign, convey or otherwise transfer to a
single institutional investor or an Affiliate of an institutional investor all
(but not less than all) of the Beneficial Interest, provided that it gives the
Lessee and the Indenture Trustee at least 10 Business Days' notice of such
assignment, conveyance or other transfer and provided further that the Owner
Participant shall remain liable for all obligations of the Owner Participant
under the Trust Agreement and the Operative Agreements to which the Owner
Participant is a party to the extent (but only to the extent) relating to the
period on or before the date of such transfer and provided that the transferee
agrees by a written instrument to assume primary liability for all obligations
as an Owner Participant under the Trust Agreement and the other Operative
Agreements to which such Owner Participant is a party relating to the period
after the date of transfer. Any such transferee shall (a) be (i) a bank,
savings institution, finance company, leasing company or trust company,
national banking association acting for its own account or in a fiduciary
capacity as trustee or agent under any pension, retirement, profit sharing or
similar trust or fund, insurance company, fraternal benefit society or
corporation acting for its own account having a combined capital and surplus
(or, if applicable, consolidated tangible net worth or its equivalent) of not
less than $75,000,000, (ii) a subsidiary of any Person described in clause (i)
where such Person provides (A) support for the obligations assumed by such
transferee subsidiary reasonably satisfactory to the Lessee, the Owner Trustee
and the Indenture Trustee or (B) an unconditional guaranty of such transferee
subsidiary's obligations, or (iii) an Affiliate of the transferring Owner
Participant, so long as such Affiliate has a combined capital and surplus (or,
if applicable, consolidated tangible net worth or its equivalent) of not less
than $75,000,000, (b) be legally capable of binding itself to the obligations
of the Owner Participant and shall expressly agree to assume all obligations
of the Owner Participant under the Trust Agreement and this Agreement and (c)
provide representations substantially similar to those contained in Section
7.03(a) hereof. In the event of any such assignment, conveyance or transfer,
the transferee shall become a party to the Trust Agreement and shall agree to
be bound by all the terms of and will undertake all of the obligations of the
Owner Participant contained in the Trust Agreement and the other Operative
Agreements. A transferee hereunder shall be (i) a "U.S. Person" as defined in
Section 7701(a)(30) of the Code (or any successor provision thereto) and if
the transferee shall cease to be such a "U.S. Person" then each Certificate
Holder shall be provided an indemnity in form and substance satisfactory to
each such Certificate Holder for any Taxes that may be imposed on such
Certificate Holders (currently or in the future) due to such transferee's
failure to be such a "U.S. Person" and (ii) a Citizen of the United States or
has established a voting trust, voting powers or other arrangement reasonably
satisfactory to the Indenture Trustee and the Lessee to permit the Owner
Trustee to be the registered owner of the Aircraft under the Transportation
Code. A transferee hereunder shall not be, and in acquiring the Beneficial
Interest shall not use the assets of, an employee benefit plan subject to
Title I of ERISA or an individual retirement account or a plan subject to
Section 4975 of the Code. Assuming the truth of the representations made in
Sections 6.01(m) and 7.06 hereof and compliance with Section 2.18 of the
Indenture, no such assignment, conveyance or transfer shall violate any
provision of law or regulation or create a relationship which would be in
violation thereof. The Owner Trustee shall not be on notice of or otherwise
bound by any such assignment, conveyance or transfer unless and until it shall
have received an executed counterpart of the instrument of such assignment,
conveyance or transfer. Upon any such disposition by the Owner Participant to
a transferee as above provided, the transferee shall be deemed the "Owner
Participant" or "Trustor" for all purposes of the Operative Agreements, and
shall be deemed to have made all the payments previously made by its
transferor and to have acquired the same interest in the Lessor's Estate as
theretofore held by its transferor; and each reference therein to the "Owner
Participant" or "Trustor" shall thereafter be deemed a reference to such
transferee. Notwithstanding anything to the contrary contained in this
Section ____(d), in no event shall the Owner Participant transfer its interest
in the Beneficial Interest to any entity whose business is that of a
nationwide or worldwide overnight or expedited delivery small package air
courier, cargo or freight deliverer or which competes with the Lessee in such
lines of business. The Lessee agrees that it will reasonably cooperate with
the Owner Participant in effecting an assignment of the Owner Participant's
interests including, without limitation, providing letters to any successor
Owner Participant permitting such successor Owner Participant to rely on any
opinions provided by the Lessee on the Delivery Date.
(e) Actions with Respect to Lessor's Estate, Etc. The Owner
Participant agrees that it will not take any action to subject the Lessor's
Estate or the trust established by the Trust Agreement, as debtor, to the
reorganization or liquidation provisions of the Bankruptcy Code or any other
applicable bankruptcy or insolvency statute.
(f) Citizenship. The Owner Participant agrees, solely for the
benefit of the Lessee, the Pass Through Trustee, the Indenture Trustee and the
Owner Trustee, that if at any time on or after the Delivery Date when the
Aircraft is registered or the Lessee proposes to register the Aircraft in the
United States (i) either it shall cease to be, or an event which has been
publicly disclosed has occurred of which the Owner Participant has knowledge
and which will cause the Owner Participant to cease to be, a Citizen of the
United States and (ii) the Aircraft shall or would therefore become ineligible
for registration in the name of the Owner Trustee under the Transportation
Code and regulations then applicable thereunder, then the Owner Participant
shall give notice thereof to the Lessee, the Owner Trustee and the Indenture
Trustee and shall (at its own expense and without any reimbursement or
indemnification from the Lessee) immediately (and in any event within a period
of 20 days) (x) effect a voting trust or other similar arrangement, (y)
transfer in accordance with the terms of this Agreement and the Trust
Agreement all its rights, title and interest in and to such Trust Agreement,
the Lessor's Estate and this Agreement, or (z) take any other alternative
action that would prevent any deregistration, or maintain or permit the United
States registration, of the Aircraft. It is agreed that the Owner Participant
shall be liable to pay promptly on request (A) to each of the other parties
hereto any actual damages (but not consequential damages) suffered by any such
other party to the extent the same shall result from the representation and
warranty of the Owner Participant in the first sentence of Section _____
hereof proving to be untrue as of the Delivery Date; and (B) to the Lessee,
the Indenture Trustee or the Pass Through Trustee for any damages actually
(but not consequentially) incurred by the Lessee, the Indenture Trustee and
the Pass Through Trustee as a result of the Owner Participant's failure to
comply with its obligations pursuant to the first sentence of this Section
_____(f); provided, that, the foregoing shall not restrict the Pass Through
Trustee or the Indenture Trustee from asserting against the Owner Participant
any damages actually incurred by the holders of any Pass Through Certificates.
Each party hereto agrees, upon the request and at the sole expense of the
Owner Participant, to cooperate with the Owner Participant in complying with
its obligations under the provisions of the first sentence of this Section
_____(f), but without any obligation on the part of such other party to take
any action believed by it in good faith to be unreasonably burdensome to such
party or materially adverse to its business interests.
SCHEDULE VI
MANDATORY ECONOMIC TERMS
Certificates
Loan to Aircraft Value Ratio on any July 15 Payment Date (with the value of the
Aircraft set forth in the Prospectus Supplement (as defined in the Pass Through
Agreement) in "Description of the Equipment Trust Certificates - Loan to Value
Ratios of Equipment Trust Certificates") shall be as follows:
Series A: not in excess of 40.0%
Series B: not in excess of 55.0%
Series C: not in excess of 75.0%
Average Life:
The average life may not be more than 14.5 years in the case of the Series A
Certificates and 13.0 in the case of the Series B Certificates and in the
case of the Series C Certificates may not be so great as to cause the
average life of the Pass Through Certificates, 1997-1-C, to be more than
10.0 years (but in each case may be decreased by any amount).
Final Maturity Date:
Series A: may not be extended beyond January 15, 2018
Series B: may not be extended beyond January 15, 2018
Series C: may not be extended beyond January 15, 2014
Debt Rate (computed on the basis of a 360-day year consisting of twelve 30-day
months, payable semi-annually in arrears) shall be as follows:
Series A: 7.50%
Series B: 7.52%
Series C: 7.65%
Past Due Rate: Debt Rate plus 2% per annum.
Payment Dates: January 15 and July 15.
Make-Whole Premium: As provided in Article V of the Indenture.
Redemption and Purchase: As provided in the Indenture.
Lease
Term: The Basic Term shall expire by its terms on or
after final maturity date of the Series A
Certificates.
Rent Payment Dates: January 15 and July 15.
Minimum Rent: Basic Rent due and payable on each Payment Date
shall be at least sufficient to pay in full, as of
such Payment Date (assuming timely payment of the
Certificates prior to such Date), the aggregate
principal amount of scheduled installments due on
the Certificates outstanding on such Payment Date.
Supplemental Rent: Shall be sufficient to cover the sums described in
the definition of such term in Schedule II to the
Participation Agreement.
Stipulated Loss Value: At all times shall be equal to or greater than the
outstanding principal amount of the Certificates
together with accrued interest thereon. The
interest rate payable with respect to Stipulated
Loss Value may not be modified.
Termination Value: At all times shall be equal to or greater than the
outstanding principal amount of the Certificates
together with accrued interest thereon. The
interest rate payable with respect to Termination
Value Date may not be modified.
All-risk hull insurance: Shall not be less than Stipulated Loss Value,
subject to Lessee's right to self-insure on terms
no more favorable to Lessee in any material respect
than those set forth in Article 13 of the Lease.
Minimum Liability
Insurance Amount: $300,000,000.
Past Due Rate: As set forth in the definition thereof in Schedule
II to the Participation Agreement.
Participation Agreement
The Indenture Trustee, the Subordination Agent and the Liquidity Providers
indemnified against Expenses and Taxes to the extent set forth in Articles 8
and 9 of the Participation Agreement as in effect on the Certificate Closing
Date.
SCHEDULE V
MANDATORY DOCUMENT TERMS
Any amendment and restatement of the Operative Agreements on the Delivery
Date or, if earlier, the Transfer Date:
1. May not modify in any material adverse respect the Granting
Clause of the Indenture so as to deprive the Holders of a first
priority security interest in and mortgage lien on the Aircraft
and the Lease or to eliminate any of the obligations secured
thereby or otherwise modify in any material adverse respect as
regards the interests of the Holders, the Subordination Agent,
the Liquidity Providers or the Indenture Trustee the provisions
of Article II, V or VI or Section 7.01, 7.02, 7.10, 7.11, 9.08,
13.01, 13.02, 13.07 or 15.04 or Article VIII of the Indenture;
2. May not modify in any material adverse respect as regards the
interests of the Holders, the Subordination Agent, the
Liquidity Providers or the Indenture Trustee the provisions
of Section 3.05, 3.06, 11.03(a)(x), 13.01(c)(i), the second
sentence of 19.01, 20.01, 22.01, 22.03, 26.03, 27.01 or
27.02 of the Lease or otherwise modify the terms of the
Lease so as to deprive the Indenture Trustee of rights
expressly granted to the "Indenture Trustee" therein;
3. May not modify in any material adverse respect as regards the
interests of the Holders, the Subordination Agent, the
Liquidity Providers or the Indenture Trustee the provisions
of Section 4.02(e), 4.02(f), 17.02, 17.11, 17.12 or 17.13 of
the Participation Agreement or of the provisions of Section
4.01(j) of the Participation Agreement so as to eliminate
the requirement to deliver to the Indenture Trustee the
legal opinions to be provided to such Persons thereunder
(recognizing that the lawyers rendering such opinions may be
changed) or of the provisions of Section 6.03(b) of the
Participation Agreement as regards the rights of the
Indenture Trustee thereunder or otherwise modify the terms
of the Participation Agreement to deprive the Subordination
Agent, the Liquidity Providers or the Indenture Trustee of
any indemnity or right of reimbursement in its favor for
Expenses or Taxes;.
4. May not modify in any material adverse respect as regards the
interests of the holders of the Pass Through Certificates, the
Subordination Agent, the Liquidity Providers or the Indenture
Trustee, the definition of "Make-Whole Premium" or
"Supplemental Rent" in Schedule II to the Participation
Agreement; and
5. Shall contain representations and warranties of the Owner
Participant substantially similar to those set forth on Exhibit
A attached hereto.
Notwithstanding the foregoing, any such Mandatory Document Term
may be modified to correct or supplement any such provision which may
be defective or to cure any ambiguity or correct any mistake,
provided that any such action shall not materially adversely affect
the interests of the Holders, the Subordination Agent, the Liquidity
Providers, the Indenture Trustee or the holders of the Pass Through
Certificates.
Exhibit A
to
Schedule V
Section ____. Representations, Warranties and Covenants of Owner
Participant. (a) Representations, Warranties and Covenants. In addition to
and without limiting its other representations and warranties provided for in
this Article __, the Owner Participant represents and warrants that:
(i) it is a corporation duly incorporated and validly existing in
good standing under the laws of the State of ________ and it has full
corporate power, authority and legal right to carry on its present business
and operations, to own or lease its Properties and to enter into and to
carry out the transactions contemplated by this Agreement, the Tax
Indemnity Agreement, the Trust Agreement and the other Operative Agreements
to which it is or is to be a party;
(ii) the execution, delivery and performance by it of this
Agreement, the Tax Indemnity Agreement, the Trust Agreement and the other
Operative Agreements to which it is or is to be a party have been duly
authorized by all necessary corporate action on its part and do not require
any governmental approvals that would be required to be obtained by the
Owner Participant;
(iii) neither the execution, delivery or performance by the Owner
Participant of this Agreement, the Tax Indemnity Agreement, the Trust
Agreement and the other Operative Agreements to which it is or is to be a
party nor compliance with the terms and provisions hereof or thereof,
conflicts or will conflict with or results or will result in a breach or
violation of any of the terms, conditions or provisions of, or will require
any consent or approval under any law, governmental rule or regulation
applicable to the Owner Participant or the charter documents, as amended,
or bylaws, as amended, of the Owner Participant or any order, writ,
injunction or decree of any court or governmental authority against the
Owner Participant or by which it or any of its Properties is bound or any
indenture, mortgage or contract or other agreement or instrument to which
the Owner Participant is a party or by which it or any of its Properties is
bound, or constitutes or will constitute a default thereunder or results or
will result in the imposition of any Lien upon any of its Properties;
(iv) this Agreement, the Tax Indemnity Agreement, the Trust
Agreement and the other Operative Agreements to which it is or is to be
a party have been or on the Delivery Date will be duly executed and
delivered by the Owner Participant and constitute or on the Delivery
Date will constitute the legal, valid and binding obligation of the
Owner Participant enforceable against it in accordance with their terms
except as such enforceability may be limited by bankruptcy, insolvency,
moratorium, reorganization or other similar laws or equitable principles
of general application to or affecting the enforcement of creditors'
rights (regardless of whether enforceability is considered in a
proceeding in equity or at law);
(v) it is not in default under any mortgage, deed of trust,
indenture, lease or other instrument or agreement to which the Owner
Participant is a party or by which it or any of its Properties may be
bound, or in violation of any applicable law, which default or violation
would have a material adverse effect on the financial condition, business
or operations of the Owner Participant or an adverse effect on the ability
of the Owner Participant to perform its obligations under this Agreement
and the other Operative Agreements to which it is or is to be a party;
(vi) there are no pending or, to the knowledge of the Owner
Participant, threatened actions, suits, investigations or proceedings
against the Owner Participant before any court, administrative agency or
tribunal which are expected to materially adversely affect the ability of
the Owner Participant to perform its obligations under any of the Operative
Agreements to which it is or is to be a party, and the Owner Participant
knows of no pending or threatened actions or proceedings before any court,
administrative agency or tribunal involving it in connection with the
transactions contemplated by the Operative Agreements;
(vii) neither the execution and delivery by it of this Agreement,
the Tax Indemnity Agreement, the Trust Agreement or the other Operative
Agreements to which it is or is to be a party nor the performance of its
obligations hereunder or thereunder requires the consent or approval of or
the giving of notice to, the registration with, or the taking of any other
action in respect of, any governmental authority or agency that would be
required to be obtained or taken by the Owner Participant except for
filings contemplated by this Agreement;
(viii) no part of the funds to be used by it to acquire the interests
to be acquired by the Owner Participant under this Agreement constitutes
assets (within the meaning of ERISA and any applicable rules and
regulations) of any employee benefit plan subject to Title I of ERISA or of
any plan or individual retirement account subject to Section 4975 of the
Code;
(ix) it is a "U.S. Person" as defined in Section 7701(a)(30) of the
Code and is not a tax resident of another country and if it shall at any
time cease to be such a "U.S. Person" or shall become a tax resident of
another country, it shall furnish to the Agent and each Loan Certificate
Holder an indemnity, in form and substance reasonably satisfactory to such
Loan Certificate Holder, for any Taxes that may be imposed on such Holder
as a result of the Owner Participant's failure to be such a "U.S. Person"
or as a result of its being a tax resident of another country, and the
Owner Participant shall be personally liable for any debt service to the
extent that the receipt of rentals is reduced by reason of any withholding
Taxes that result from such failure to be such a "U.S. Person" or from
being a tax resident of another country; and
(x) it has a consolidated tangible net worth of not less than
$75,000,000.
Notwithstanding the foregoing or anything else contained in this
Agreement, the Owner Participant makes no representation or warranty in this
Agreement with respect to laws, rules or regulations relating to aviation or
to the nature or use of the equipment owned by the Owner Trustee, including,
without limitation, the airworthiness, value, condition, workmanship, design,
patent or trademark infringement, operation, merchantability or fitness for
use of the Aircraft, other than such laws, rules or regulations relating to
the citizenship requirements of the Owner Participant under applicable
aviation law.
(b) Lessor's Liens. The Owner Participant further represents,
warrants and covenants that there are no Lessor's Liens attributable to it (or
an Affiliate thereof) against, on or with respect to the Aircraft or the
Lessor's Estate or the Trust Indenture Estate, and that there will not be any
Lessor's Lien attributable to it (or an Affiliate thereof) against, on or with
respect to the Aircraft or the Lessor's Estate or the Trust Indenture Estate
attributable to it (or an Affiliate thereof) on the Delivery Date. The Owner
Participant agrees with and for the benefit of the Lessee, the Owner Trustee,
the Indenture Trustee and the Loan Participants and any subsequent Holders of
the Loan Certificates that the Owner Participant will, at its own cost and
expense, take such action as may be necessary (by bonding or otherwise, so
long as neither the Lessee's operation and use of the Aircraft nor the
validity and priority of the Lien of the Indenture is impaired) to duly
discharge and satisfy in full, promptly after the same first becomes known to
the Owner Participant, any Lessor's Lien against, on or with respect to the
Aircraft or the Lessor's Estate or the Trust Indenture Estate attributable to
the Owner Participant (or an Affiliate thereof), provided, however, that the
Owner Participant shall not be required to discharge or satisfy such Lessor's
Lien which is being contested by the Owner Participant in good faith and by
appropriate proceedings so long as such proceedings do not involve any
material danger of the sale, forfeiture or loss of the Aircraft or the
Lessor's Estate or the Trust Indenture Estate or any interest in any thereof
or otherwise materially adversely affect the validity or priority of the Lien
of the Indenture.
(c) Reimbursement. Without limiting any other rights the parties
hereto may have as a result of any breach by the Owner Participant of its
obligations in Section ____(b) hereof, the Owner Participant agrees to
reimburse each other party hereto for all reasonable legal fees and expenses
of counsel that may be incurred by any such party as a result of the failure
of the Owner Participant to discharge and satisfy any such Lessor's Lien in
accordance with the terms of Section ____(b) hereof.
(d) Assignment of Interests of Owner Participant. At any time
after the Delivery Date, and subject to the conditions set forth in this
Section ____(d), the Owner Participant may assign, convey or otherwise
transfer to a single institutional investor or an Affiliate of an
institutional investor all (but not less than all) of the Beneficial
Interest, provided that it gives the Lessee and the Indenture Trustee at
least 10 Business Days' notice of such assignment, conveyance or other
transfer and provided further that the Owner Participant shall remain
liable for all obligations of the Owner Participant under the Trust
Agreement and the Operative Agreements to which the Owner Participant is a
party to the extent (but only to the extent) relating to the period on or
before the date of such transfer and provided that the transferee agrees by
a written instrument to assume primary liability for all obligations as an
Owner Participant under the Trust Agreement and the other Operative
Agreements to which such Owner Participant is a party relating to the
period after the date of transfer. Any such transferee shall (a) be (i) a
bank, savings institution, finance company, leasing company or trust
company, national banking association acting for its own account or in a
fiduciary capacity as trustee or agent under any pension, retirement,
profit sharing or similar trust or fund, insurance company, fraternal
benefit society or corporation acting for its own account having a combined
capital and surplus (or, if applicable, consolidated tangible net worth or
its equivalent) of not less than $75,000,000, (ii) a subsidiary of any
Person described in clause (i) where such Person provides (A) support for
the obligations assumed by such transferee subsidiary reasonably
satisfactory to the Lessee, the Owner Trustee and the Indenture Trustee or
(B) an unconditional guaranty of such transferee subsidiary's obligations,
or (iii) an Affiliate of the transferring Owner Participant, so long as
such Affiliate has a combined capital and surplus (or, if applicable,
consolidated tangible net worth or its equivalent) of not less than
$75,000,000, (b) be legally capable of binding itself to the obligations of
the Owner Participant and shall expressly agree to assume all obligations
of the Owner Participant under the Trust Agreement and this Agreement and
(c) provide representations substantially similar to those contained in
Section 7.03(a) hereof. In the event of any such assignment, conveyance or
transfer, the transferee shall become a party to the Trust Agreement and
shall agree to be bound by all the terms of and will undertake all of the
obligations of the Owner Participant contained in the Trust Agreement and
the other Operative Agreements. A transferee hereunder shall be (i) a
"U.S. Person" as defined in Section 7701(a)(30) of the Code (or any
successor provision thereto) and if the transferee shall cease to be such a
"U.S. Person" then such transferee shall promptly transfer in accordance
with the terms of this Agreement and the Trust Agreement all its rights,
title and interest in and to the Trust Agreement, the Lessor's Estate and
this Agreement and meanwhile (A) each Loan Certificate Holder shall be
provided an indemnity in form and substance satisfactory to each such Loan
Certificate Holder, for any Taxes that may be imposed on such Loan
Certificate Holder (currently or in the future) due to such transferee's
failure to be such a "U.S. Person" and (B) such transferee shall be
personally liable for any debt service to the extent that its receipt of
rentals is reduced by reason of any withholding Taxes that result from such
transferee's failure to be such a "U.S. Person" and (ii) a Citizen of the
United States or has established a voting trust, voting powers or other
arrangement reasonably satisfactory to the Indenture Trustee and the Lessee
to permit the Owner Trustee to be the registered owner of the Aircraft
under the Transportation Code. A transferee hereunder shall not be, and in
acquiring the Beneficial Interest shall not use the assets of, an employee
benefit plan subject to Title I of ERISA or an individual retirement
account or a plan subject to Section 4975 of the Code. Assuming the truth
of the representations made in Sections 6.01(m) and 7.06 hereof and
compliance with Section 2.18 of the Indenture, no such assignment,
conveyance or transfer shall violate any provision of law or regulation or
create a relationship which would be in violation thereof. The Owner
Trustee shall not be on notice of or otherwise bound by any such
assignment, conveyance or transfer unless and until it shall have received
an executed counterpart of the instrument of such assignment, conveyance or
transfer. Upon any such disposition by the Owner Participant to a
transferee as above provided, the transferee shall be deemed the "Owner
Participant" or "Trustor" for all purposes of the Operative Agreements, and
shall be deemed to have made all the payments previously made by its
transferor and to have acquired the same interest in the Lessor's Estate as
theretofore held by its transferor; and each reference therein to the
"Owner Participant" or "Trustor" shall thereafter be deemed a reference to
such transferee. Notwithstanding anything to the contrary contained in
this Section 7.03(d), in no event shall the Owner Participant transfer its
interest in the Beneficial Interest to any entity whose business is that of
a nationwide or worldwide overnight or expedited delivery small package air
courier, cargo or freight deliverer or which competes with the Lessee in
such lines of business. The Lessee agrees that it will reasonably
cooperate with the Owner Participant in effecting an assignment of the
Owner Participant's interests including, without limitation, providing
letters to any successor Owner Participant permitting such successor Owner
Participant to rely on any opinions provided by the Lessee on the Delivery
Date.
(e) Actions with Respect to Lessor's Estate, Etc. The Owner
Participant agrees that it will not take any action to subject the Lessor's
Estate or the trust established by the Trust Agreement, as debtor, to the
reorganization or liquidation provisions of the Bankruptcy Code or any other
applicable bankruptcy or insolvency statute.
SCHEDULE VI
MANDATORY ECONOMIC TERMS
Certificates
Loan to Aircraft Value Ratio on any July 15 Payment Date (with the value of
the Aircraft set forth in the Prospectus Supplement in "Equipment Trust
Certificates and the Aircraft" under the column "Appraised Value"):
Series A: not in excess of 40.0%
Series B: not in excess of 55.0%
Series C: not in excess of 75.0%
Average Life (in years):
The average life may not be more than 14.5 years in the case of the
Series A Certificates and 13.0 in the case of the Series B Certificates
and in the case of the Series C Certificates may not be so great as to
cause the average life of the Pass Through Certificates, 1997-1-C, to be
more than 10.0 years (but in each case may be decreased by any amount).
Final Maturity Date:
Series A: may not be extended beyond January 15, 2018
Series B: may not be extended beyond January 15, 2018
Series C: may not be extended beyond January 15, 2014
Debt Rate (computed on the basis of a 360-day year consisting of twelve 30-day
months, payable semi-annually in arrears):
Series A: 7.50%
Series B: 7.52%
Series C: 7.65%
Past Due Rate: Debt Rate plus 2% per annum.
Payment Dates: January 15 and July 15.
Make-Whole Premiums: as provided in Article V of the Indenture.
Redemption and Purchase: as provided in the Indenture.
Lease
Term: The Basic Term shall expire by its terms on or
after final maturity date of the Series A
Certificates.
Lease Payment Dates: January 15 and July 15.
Minimum Rent: Basic Rent due and payable on each Payment Date
shall be at least sufficient to pay in full, as of
such Payment Date (assuming timely payment of the
Certificates prior to such Date), the aggregate
principal amount of scheduled installments due on
the Certificates outstanding on such Payment Date.
Supplemental Rent: Sufficient to cover the sums described in the
definition of such term in Schedule II to the
Participation Agreement.
Stipulated Loss Value: At all times equal to or greater than the
outstanding principal amount of the Certificates
together with accrued interest thereon. The
interest rate payable with respect to Stipulated
Loss Value.
Termination Value: At all times equal to or greater than the
outstanding principal amount of the Certificates
together with accrued interest thereon. The
interest rate payable with respect to Termination
Value Date.
All-risk hull insurance: Not less than Stipulated Loss Value, subject to
Lessee's right to self-insure on terms no more
favorable to Lessee in any material respect than
those set forth in Article 13 of the Lease.
Minimum Liability
Insurance Amount: $300,000,000.
Past Due Rate: As set forth in the definition thereof in Schedule
II to the Participation Agreement.
Participation Agreement
The Indenture Trustee, the Subordination Agent and the Liquidity Providers
indemnified against Expenses and Taxes to the extent set forth in Articles 8
and 9 of the Participation Agreement as in effect on the Certificate Closing
Date.
EXHIBIT A(1)(a)(i)
[Letterhead of Federal Express]
[Certificate Closing Date]
To the Addressees Listed on Schedule A Attached
Re: Federal Express Corporation Trust No. N584FE
Ladies and Gentlemen:
I am the Vice President - Law of Federal Express Corporation, a
Delaware corporation ("Federal"), and am familiar with the transactions
contemplated by the Participation Agreement (Federal Express Corporation Trust
No. N584FE), dated as of May 1, 1997 (the "Participation Agreement"), among
Federal, as Lessee and Initial Owner Participant, State Street Bank and Trust
Company of Connecticut, National Association, not in its individual capacity,
except as otherwise stated, but solely as Owner Trustee, and First Security
Bank, National Association, not in its individual capacity, except as otherwise
stated, but solely as Indenture Trustee, Pass Through Trustee and Subordination
Agent, relating to the Aircraft. This opinion is being delivered pursuant to
Section 4.01(j)(i) of the Participation Agreement. Capitalized terms not
otherwise defined herein have the meanings assigned thereto in the
Participation Agreement.
The Participation Agreement provides, among other things, for
the financing on the Delivery Date of a portion of the Owner Trustee's payment
of the Purchase Price of one McDonnell Douglas MD-11F aircraft (the
"Aircraft"), using the proceeds from the public offering of the Pass Through
Certificates. Three Classes of Pass Through Certificates will be issued by
three Pass Through Trusts formed to acquire, among other securities, the
Certificates bearing a particular interest rate and having a particular
Maturity that will be issued under the Indenture.
In connection with the opinions expressed below, I have examined
or caused to be examined by attorneys under my supervision, (i) executed
counterparts of the Pass Through Agreement, the Series Supplements and the
Operative Agreements to be delivered on the Certificate Closing Date (the
"Certificate Closing Date Documents") and (ii) the forms of the Operative
Agreements to be delivered on the Delivery Date. We have relied upon originals
or copies, certified or otherwise identified to our satisfaction, of such
corporate records, documents and other instruments as in our judgment are
relevant to rendering the opinions expressed below. As to any facts material
to the opinions expressed below (other than any thereof relating to Federal),
we have relied upon the representations and warranties made in the Certificate
Closing Date Documents, the accuracy of which we have not independently
investigated or verified. In such examination, we have assumed the
genuineness of all signatures (other than the signatures of Federal) and the
authenticity of all documents submitted to us as originals and the conformity
with the originals of all documents submitted to us as copies. We have also
assumed that each of the parties to each of the Certificate Closing Date
Documents, other than Federal, has full power, authority and legal right to
enter into such Certificate Closing Date Documents and that each such
Certificate Closing Date Document has been duly authorized, executed and
delivered by each of such parties.
Based on the foregoing, it is my opinion that:
1. Federal is a corporation duly incorporated, validly
existing and in good standing under the laws of the State of Delaware, is a
"citizen of the United States" within the meaning of Section 40102(a)(15) of
the Transportation Code, and has or had, on the date of execution thereof, the
corporate power and authority to carry on its business as currently conducted
and to enter into and perform its obligations under the Certificate Closing
Date Documents to which it is a party. Federal is duly qualified to do
business and is in good standing in the State of Tennessee and each other
state of the United States in which its operations or the nature of its
business requires Federal to so qualify, except where the failure to so
qualify would not have a material adverse impact on Federal or its business.
2. Federal possesses all necessary certificates, franchises,
licenses, permits, rights and concessions and consents which are material to
the operation of the routes flown by it and the conduct of its business and
operations as currently conducted, and each such certificate, franchise,
license, permit, right and concession and consent is in full force and effect.
3. Each of the Certificate Closing Date Documents to which
Federal is a party has or had, on the date of execution thereof, been duly
authorized, executed and delivered by Federal and each constitutes the legal,
valid and binding obligation of Federal enforceable against Federal in
accordance with its terms. Each of the Certificate Closing Date Documents to
which Federal is to be a party and which are to be executed on the Delivery
Date has been duly authorized by Federal.
4. Neither the execution and delivery by Federal of the
Certificate Closing Date Documents to which Federal is a party, nor the
consummation of any of the transactions by Federal contemplated thereby, nor
the performance of the obligations thereunder by Federal, did at the time of
execution and delivery, or does presently (a) require any stockholder approval
or violate the certificate of incorporation or by-laws of Federal or (b)
conflict with or contravene the provisions of, or constitute a default under,
or result in the creation of any Lien (other than Liens permitted under
Section 6.01(a) of the Lease) upon the property of Federal under any law,
governmental rule or regulation, or the charter or bylaws of Federal or any
order, writ, injunction or decree of any court or governmental authority
against Federal or by which any of its properties may be bound or any
indenture, mortgage, contract or other agreement known to me to which Federal
is a party or by which it may be bound or, require the approval or consent of
any trustee or the holders of any indebtedness or obligations of Federal.
5. Neither the execution and delivery by Federal of the
Certificate Closing Date Documents to which it is a party, nor the
consummation of any transactions by Federal contemplated thereby, nor the
performance of the obligations thereunder by Federal, did or does, as the case
may be, (a) require the consent or approval of, the giving of notice to, or
(except as described or contemplated in the Participation Agreement and the
Lease, all of which are required to be performed on or prior to the Certificate
Closing Date and which shall have been accomplished on or prior to the
Certificate Closing Date) the registration with, or the taking of any other
action in respect of, the Aeronautics Authority, the Securities and Exchange
Commission or any other authority or agency of the federal government or of
the State of Tennessee other than (i) the registration of the issuance and
sale of the Pass Through Certificates under the Securities Act and (ii)
compliance with the securities laws of each applicable state, or (b)
contravene any judgment or order applicable to or binding on Federal or any
law or governmental rule or regulation of the United States or of the State of
Tennessee.
6. There is no pending, or to my knowledge, threatened action
or proceeding before any court or administrative agency which individually (or
in the aggregate in the case of any group of related lawsuits) is expected to
have a material adverse effect on (A) the financial condition of Federal,
except for the matters described (a) under "Legal Proceedings" in Federal's
Annual Report on Form 10-K for the fiscal year ended May 31, 1996 (as updated
by Note 7 to the financial statements included in Federal's Quarterly Reports
on Form 10-Q for the fiscal quarters ended August 31, 1996, November 30, 1996
and February 28, 1997) and (b) in Federal's Current Reports on Form 8-K dated
June 7, 1996, August 16, 1996 and March 4, 1997, as to which I can express no
opinion at this time concerning Federal's liability (if any) or the effect of
any adverse determination upon the business, condition (financial or
otherwise) or operations of Federal or (B) the ability of Federal to perform
its obligations under the Certificate Closing Date Documents.
7. Federal is a duly certificated "air carrier" within the
meaning of the Transportation Code, and a holder of a certificate under
Sections 41102(a) and 41103 of the Transportation Code, and an "air carrier
operating certificate" issued under Chapter 447 of the Transportation Code for
aircraft capable of carrying ten (10) or more individuals or 6,000 pounds or
more of cargo, and each such certificate is in full force and effect.
8. Federal's principal place of business and chief executive
office (as such term is defined in the Uniform Commercial Code in effect in the
State of Tennessee) are located at 2005 Corporate Avenue, Memphis, Shelby
County, Tennessee.
9. Federal is not, and is not directly or indirectly
controlled by or acting on behalf of any Person which is, an "investment
company" within the meaning of the Investment Company Act of 1940, as amended.
The opinions expressed in paragraph 3 above as to the
enforceability of the Certificate Closing Date Documents to which Federal is a
party are based upon the assumption for purposes of such opinions and without
independent analysis that, notwithstanding the respective choice of laws
clauses in the Certificate Closing Date Documents, the governing law with
respect to each of the Certificate Closing Date Documents is identical in all
relevant respects to the law of the State of Tennessee. Insofar as the
foregoing opinion relates to the enforceability of any instrument, such
enforceability is subject to applicable bankruptcy, insolvency and other
similar laws affecting the enforcement of creditors' rights generally (whether
such enforceability is considered in a proceeding in equity or at law). The
enforceability of the remedies provided under the Lease may also be limited by
applicable laws which may affect the remedies provided therein but which do
not in my opinion affect the validity of the Lease or make such remedies
inadequate for the practical realization of the benefits intended to be
provided thereby.
I do not express any opinion as to matters governed by any law
other than the Federal laws of the United States of America, the corporation
law of the State of Delaware and the laws of the State of Tennessee.
This opinion is delivered to you solely for your use in
connection with the transaction described herein, and may not be used for any
other purpose, and may not be relied upon by any other person, without my prior
written consent.
George W. Hearn
SCHEDULE A
----------
Owner Trustee
State Street Bank and Trust Company
of Connecticut, National Association
Two International Place
4th Floor
Boston, Massachusetts 02110
Indenture Trustee, Pass Through Trustee & Subordination Agent
First Security Bank, National Association
79 South Main Street
Salt Lake City, Utah 84111
Underwriters
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
First Chicago Capital Markets, Inc.
Corporate Securities
One First National Plaza
Chicago, Illinois 60670
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
J.P. Morgan & Co.
60 Wall Street
New York, New York 10260
Liquidity Provider
Kredietbank N.V., New York Branch
125 West 55th Street
New York, New York 10019
EXHIBIT A(1)(a)(ii)
[Letterhead of Federal Express]
[Delivery Date]
To the Addressees Listed on Schedule A Attached
Re: Federal Express Corporation Trust No. N584FE
Ladies and Gentlemen:
I am the Vice President - Law of Federal Express Corporation, a
Delaware corporation ("Federal"), and am familiar with the transactions
contemplated by the Participation Agreement (Federal Express Corporation Trust
No. N584FE), dated as of May 1, 1997 (the "Participation Agreement"), among
Federal, as Lessee, ____________________, as Owner Participant, State Street
Bank and Trust Company of Connecticut, National Association, not in its
individual capacity, except as otherwise stated, but solely as Owner Trustee,
and First Security Bank, National Association, not in its individual capacity,
except as otherwise stated, but solely as Indenture Trustee, Pass Through
Trustee and Subordination Agent, relating to the Aircraft. This opinion is
being delivered pursuant to Section 4.02(d)(i) of the Participation Agreement.
Capitalized terms not otherwise defined herein have the meanings assigned
thereto in the Participation Agreement.
The Participation Agreement provides, among other things, for
the financing on the Delivery Date of a portion of the Owner Trustee's payment
of the Purchase Price of one McDonnell Douglas MD-11F aircraft (the
"Aircraft"), using the proceeds from the public offering of the Pass Through
Certificates. Three Classes of Pass Through Certificates were issued by three
Pass Through Trusts formed to acquire, among other securities, the
Certificates bearing a particular interest rate and having a particular
Maturity that were issued under the Indenture, as supplemented by the related
Indenture and Security Agreement Supplement.
In connection with the opinions expressed below, I have examined
or caused to be examined by attorneys under my supervision, executed
counterparts of the Operative Agreements, the Pass Through Agreement and each
Series Supplement (the "Transaction Agreements"). We have relied upon
originals or copies, certified or otherwise identified to our satisfaction, of
such corporate records, documents and other instruments as in our judgment are
relevant to rendering the opinions expressed below. As to any facts material
to the opinions expressed below (other than any thereof relating to Federal),
we have relied upon the representations and warranties made in the Transaction
Agreements, the accuracy of which we have not independently investigated or
verified. In such examination, we have assumed the genuineness of all
signatures (other than the signatures of Federal) and the authenticity of all
documents submitted to us as originals and the conformity with the originals of
all documents submitted to us as copies. We have also assumed that each of
the parties to each of the Transaction Agreements, other than Federal, has full
power, authority and legal right to enter into such Transaction Agreements and
that each such Transaction Agreement has been duly authorized, executed and
delivered by each of such parties.
Based on the foregoing, it is my opinion that:
1. Federal is a corporation duly incorporated, validly
existing and in good standing under the laws of the State of Delaware, is a
"citizen of the United States" within the meaning of Section 40102(a)(15) of
the Transportation Code, and has or had, on the date of execution thereof, the
corporate power and authority to carry on its business as currently conducted
and to enter into and perform its obligations under the Transaction Agreements
to which it is a party. Federal is duly qualified to do business and is in
good standing in the State of Tennessee and each other state of the United
States in which its operations or the nature of its business requires Federal
to so qualify, except where the failure to so qualify would not have a
material adverse impact on Federal or its business.
2. Federal possesses all necessary certificates, franchises,
licenses, permits, rights and concessions and consents which are material to
the operation of the routes flown by it and the conduct of its business and
operations as currently conducted, and each such certificate, franchise,
license, permit, right and concession and consent is in full force and effect.
3. Each of the Transaction Agreements to which Federal is a
party has or had, on the date of execution thereof, been duly authorized,
executed and delivered by Federal and each constitutes the legal, valid and
binding obligation of Federal enforceable against Federal in accordance with
its terms.
4. Neither the execution and delivery by Federal of the
Transaction Agreements to which Federal is a party, nor the consummation of
any of the transactions by Federal contemplated thereby, nor the performance
of the obligations thereunder by Federal, did at the time of execution and
delivery, or does presently (a) require any stockholder approval or violate the
certificate of incorporation or by-laws of Federal or (b) conflict with or
contravene the provisions of, or constitute a default under, or result in the
creation of any Lien (other than Liens permitted under Section 6.01(a) of the
Lease) upon the property of Federal under any law, governmental rule or
regulation, or the charter or bylaws of Federal or any order, writ, injunction
or decree of any court or governmental authority against Federal or by which
any of its properties may be bound or any indenture, mortgage, contract or
other agreement known to me to which Federal is a party or by which it may be
bound or, require the approval or consent of any trustee or the holders of any
indebtedness or obligations of Federal.
5. Neither the execution and delivery by Federal of the
Transaction Agreements to which it is a party, nor the consummation of any
transactions by Federal contemplated thereby, nor the performance of the
obligations thereunder by Federal, did or does, as the case may be, (a) require
the consent or approval of, the giving of notice to, or (except as described or
contemplated in the Participation Agreement and the Lease, all of which were or
are required to be performed on or prior to the Delivery Date and which were or
shall have been accomplished on or prior to the Delivery Date) the registration
with, or the taking of any other action in respect of, the Aeronautics
Authority, the Securities and Exchange Commission or any other authority or
agency of the federal government or of the State of Tennessee other than (i)
the registration of the issuance and sale of the Pass Through Certificates
under the Securities Act, (ii) compliance with the securities laws of each
applicable state and (iii) the filings and recordings referred to in paragraph
7 below, or (b) contravene any judgment or order applicable to or binding on
Federal or any law or governmental rule or regulation of the United States or
of the State of Tennessee.
6. There is no pending, or to my knowledge, threatened action
or proceeding before any court or administrative agency which individually (or
in the aggregate in the case of any group of related lawsuits) (i) is expected
to have a material adverse effect on (A) the financial condition of Federal,
except for the matters described (a) under "Legal Proceedings" in Federal's
Annual Report on Form 10-K for the fiscal year ended May 31, 1996 (as updated
by Note 7 to the financial statements included in Federal's Quarterly Reports
on Form 10-Q for the fiscal quarters ended August 31, 1996, November 30, 1996
and February 28, 1997) and (b) in Federal's Current Reports on Form 8-K dated
June 7, 1996, August 16, 1996 and March 4, 1997, as to which I can express no
opinion at this time concerning Federal's liability (if any) or the effect of
any adverse determination upon the business, condition (financial or
otherwise) or operations of Federal or (B) the ability of Federal to perform
its obligations under the Transaction Agreements, or (ii) involves the
Aircraft.
7. Except for the registration in the Owner Trustee's name of
the Aircraft pursuant to the Transportation Code, and except for the filing
and, where appropriate, recording, pursuant to the Transportation Code of (A)
the FAA Bill of Sale, (B) the Trust Agreement, (C) the Lease (with the Lease
Supplement covering the Aircraft, the Indenture and the Indenture and Security
Agreement Supplement covering the Aircraft attached as exhibits) and (D) the
Indenture (with the Indenture and Security Agreement Supplement covering the
Aircraft attached as an exhibit), no further action, including any filing or
recording of any document is necessary or advisable in order to establish and
perfect the Owner Trustee's title to and interest in the Aircraft as against
Federal and any third parties, or to perfect the first mortgage lien on the
Aircraft in favor of the Indenture Trustee in each case with respect to such
portion of the Aircraft as is covered by the recording system established by
the Transportation Code.
8. Federal is a duly certificated "air carrier" within the
meaning of the Transportation Code, and a holder of a certificate under
Sections 41102(a) and 41103 of the Transportation Code, and an "air carrier
operating certificate" issued under Chapter 447 of the Transportation Code for
aircraft capable of carrying ten (10) or more individuals or 6,000 pounds or
more of cargo, and each such certificate is in full force and effect.
9. On the date hereof the Owner Trustee received good and
valid title to the Aircraft free and clear of all Liens on file with the FAA,
except for Liens permitted under Section 6.01(a) of the Lease.
10. Federal's principal place of business and chief executive
office (as such term is defined in the Uniform Commercial Code in effect in the
State of Tennessee) are located at 2005 Corporate Avenue, Memphis, Shelby
County, Tennessee.
11. Federal is not, and is not directly or indirectly
controlled by or acting on behalf of any Person which is, an "investment
company" within the meaning of the Investment Company Act of 1940, as amended.
The opinions expressed in paragraph 3 above as to the
enforceability of the Transaction Agreements to which Federal is a party are
based upon the assumption for purposes of such opinions and without
independent analysis that, notwithstanding the respective choice of laws
clauses in the Transaction Agreements, the governing law with respect to each
of the Transaction Agreements is identical in all relevant respects to the law
of the State of Tennessee. Insofar as the foregoing opinion relates to the
enforceability of any instrument, such enforceability is subject to applicable
bankruptcy, insolvency and other similar laws affecting the enforcement of
creditors' rights generally (whether such enforceability is considered in a
proceeding in equity or at law). The enforceability of the remedies provided
under the Lease may also be limited by applicable laws which may affect the
remedies provided therein but which do not in my opinion affect the validity of
the Lease or make such remedies inadequate for the practical realization of the
benefits intended to be provided thereby.
I do not express any opinion as to matters governed by any law
other than the Federal laws of the United States of America, the corporation
law of the State of Delaware and the laws of the State of Tennessee.
As to the matters referred to in paragraphs 5, 7 and 9, I have
relied on the opinion of Daugherty, Fowler & Peregrin of even date herewith, to
the extent such matters are addressed in such counsel's opinion and subject to
the assumptions and qualifications expressed therein.
This opinion is delivered to you solely for your use in
connection with the transaction described herein, and may not be used for any
other purpose, and may not be relied upon by any other person, without my prior
written consent.
George W. Hearn
SCHEDULE A
----------
Owner Trustee
State Street Bank and Trust Company
of Connecticut, National Association
Two International Place
4th Floor
Boston, Massachusetts 02110
Indenture Trustee, Pass Through Trustee & Subordination Agent
First Security Bank, National Association
79 South Main Street
Salt Lake City, Utah 84111
Underwriters
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
First Chicago Capital Markets, Inc.
Corporate Securities
One First National Plaza
Chicago, Illinois 60670
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
J.P. Morgan & Co.
60 Wall Street
New York, New York 10260
Liquidity Provider
Kredietbank N.V., New York Branch
125 West 55th Street
New York, New York 10019
Owner Participant
EXHIBIT A(1)(b)(i)
[Letterhead of Davis Polk & Wardwell]
[Certificate Closing Date]
To Each of the Parties named on Schedule A Hereto
Re: Federal Express Corporation Trust No. N584FE
Ladies and Gentlemen:
We have acted as special counsel for Federal Express
Corporation, a Delaware corporation ("Federal Express"), in connection with
the transactions contemplated by the Participation Agreement (Federal Express
Corporation Trust No. N584FE), dated as of May 1, 1997 (the "Participation
Agreement"), among Federal Express, as Lessee and Initial Owner Participant,
State Street Bank and Trust Company of Connecticut, National Association, not
in its individual capacity, except as otherwise stated, but solely as Owner
Trustee, and First Security Bank, National Association, not in its individual
capacity, except as otherwise stated, but solely as Indenture Trustee, Pass
Through Trustee and Subordination Agent, relating to the Aircraft. This
opinion is being delivered pursuant to Section 4.01(k)(v) of the Participation
Agreement. Capitalized terms not otherwise defined herein have the meanings
assigned thereto in the Participation Agreement.
The Participation Agreement provides, among other things, for
the financing on the Delivery Date of a portion of the Owner Trustee's payment
of the Purchase Price of one McDonnell Douglas MD-11F Aircraft using the
proceeds from the public offering of the Pass Through Certificates. On the
Certificate Closing Date, three Classes of Pass Through Certificates will be
issued by separate Pass Through Trusts, each formed to acquire, among other
securities, the Certificates bearing a particular interest rate and having a
particular Maturity that will be issued under the Indenture.
In connection with the opinions expressed below, we have
examined executed counterparts of the Operative Agreements, the Pass Through
Certificates, the Pass Through Agreement and each Series Supplement (the
"Certificate Closing Date Documents") and the forms of the Operative
Agreements to be delivered on the Delivery Date. We have also examined
originals, or copies certified to our satisfaction, of such other agreements,
documents, certificates and statements of governmental officials and corporate
officers as we have deemed necessary or advisable as a basis for such
opinions. In such examination, we have assumed the genuineness of all
signatures and the authenticity of all documents submitted to us as originals
and the conformity with the originals of all documents submitted to us as
copies.
As to any facts material to our opinions expressed below, we
have, with your consent, relied on the representations and warranties made in
or pursuant to the Participation Agreement and the other documents referred to
therein, the accuracy of which we have not independently verified. In
addition, we have, when relevant facts were not independently established by
us, relied, to the extent we deemed such reliance proper, upon certificates of
public officials and certificates, telegrams and other written or telephoned
statements of officers of the parties referred to herein.
Based on the foregoing, it is our opinion that:
1. Assuming (i) the due authorization, execution and delivery
of the Certificate Closing Date Documents by each of the parties to each such
document (other than Federal Express), (ii) each such party has full power and
legal right to enter into and perform its respective obligations under the
Certificate Closing Date Documents, (iii) that the execution, delivery and
performance of each of the Certificate Closing Date Documents by each of the
parties thereto will not violate the respective parties' constituent documents,
(iv) the due authorization, execution, issuance and delivery by the Owner
Trustee, and the due authentication by the Indenture Trustee, of the
Certificates to be issued under the Indenture in accordance with the terms of
the Indenture, (v) the due authorization, execution, issuance, delivery and
authentication by the Pass Through Trustee of the Pass Through Certificates to
be issued under the Pass Through Agreement and the Series Supplement relating
to such Pass Through Certificates, in each case in accordance with the terms
of the Pass Through Agreement and such Series Supplement, and (vi) that the
form of each Certificate Closing Date Document is in compliance with all
applicable laws and governmental rules and regulations (other than the laws of
the United States and the State of New York), then: (A) to the extent governed
by New York law, each Certificate Closing Date Document in form constitutes a
legal, valid and binding agreement of each party thereto enforceable against
each such party in accordance with its terms; (B) the Indenture creates, for
the benefit of the Holders, the security interest in the Trust Indenture
Estate that it purports to create, except that no opinion is given with
respect to perfection of such security interest on the date hereof; (C) the
Certificates, when issued to and acquired by the Pass Through Trustee, will be
legal, valid and binding obligations of the Owner Trustee enforceable against
the Owner Trustee in accordance with their terms and the terms of the
Indenture and will be entitled to the benefits of the Indenture, including the
benefit of the security interest created thereby, except that no opinion is
given with respect to perfection of such security interest on the date hereof;
(D) the Pass Through Certificates, when issued to and acquired by the
Underwriters in accordance with the Underwriting Agreement, will be legal,
valid and binding obligations of the Pass Through Trustee enforceable against
the Pass Through Trustee in accordance with their terms and will be entitled
to the benefits of the Pass Through Agreement and the Series Supplement
relating thereto; and (E) the beneficial interest of the Initial Owner
Participant under the Trust Agreement in and to the properties which are part
of the Trust Indenture Estate is subject, to the extent provided in the
Indenture, to the Lien of the Indenture in favor of the Holders.
2. (a) Each of the Certificate Closing Date Documents to which
Federal Express is a party has been duly authorized, executed and delivered by
Federal Express. Each of the Operative Agreements to which Federal Express is
to be a party and which are to be delivered on the Delivery Date has been
authorized by Federal Express.
(b) The execution, delivery and performance by Federal Express
of each of the Certificate Closing Date Documents to which Federal Express is a
party do not, or did not on the date of execution thereof, violate, and fully
comply, or did fully comply on the date of execution thereof, with, any laws
and governmental rules and regulations of the State of New York that may be
applicable to Federal Express. The opinion set forth in this paragraph 2(b) is
rendered without regard to the taking of any action or the conduct of any other
business by Federal Express in the State of New York other than the
transactions contemplated by the Certificate Closing Date Documents.
3. The execution, delivery and performance of the Certificate
Closing Date Documents (other than the Certificates) by the Owner Trustee in
its individual or trust capacity, as the case may be, and the issuance,
execution, delivery and performance of the Certificates by the Owner Trustee
in its trust capacity do not violate, and fully comply with, any laws and
governmental rules and regulations of the State of New York that may be
applicable to the Owner Trustee in its individual or trust capacity, as the
case may be. The opinion set forth in this paragraph 3 is rendered without
regard to the effect, if any, on such issuance (in the case of the
Certificates), execution, delivery or performance, of the taking of any
action, the conduct of any business or the exercise of any other powers by
State Street Bank and Trust Company of Connecticut, National Association in
its individual or trust capacity in the State of New York not related to the
transactions contemplated by the Certificate Closing Date Documents. We have
assumed that State Street Bank and Trust Company of Connecticut, National
Association has made the filings necessary to comply with Section 131.3 of the
Banking Law of the State of New York, however we express no opinion as to
whether State Street Bank and Trust Company of Connecticut, National
Association is required to comply with said Section 131.3.
4. It is not necessary, in connection with the creation of
the beneficial interest of the Initial Owner Participant in the Trust
Indenture Estate under the circumstances contemplated by the Participation
Agreement to register such beneficial interest under the Securities Act of
1933, as amended, or to qualify the Trust Agreement under the Trust Indenture
Act of 1939, as amended.
The foregoing opinions are subject to the following
qualifications:
(a) We have relied, with your consent, without independent
investigation and verification and subject to the assumptions and
qualifications contained therein, upon the opinion of George W. Hearn,
Vice President - Law of Federal Express to be delivered to you and
dated the date hereof, for purposes of the matters covered thereby.
(b) We are qualified to practice law in the State of New York,
and we do not purport to be experts on, or to express any opinion
herein concerning, any laws other than the laws of the State of New
York, the laws of the United States and the General Corporation Law
of the State of Delaware.
(c) The opinion contained in paragraph 1(A) above as to
enforceability is subject to (i) applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement
of creditors' rights generally and (ii) general principles of equity
which may affect the remedies provided in the agreements referred to
in said opinions, which laws and principles, however, do not in our
opinion make the remedies provided in said agreements inadequate for
the practical realization of the benefits of the security intended to
be provided thereby.
(d) This opinion is rendered solely to you at Federal Express's
request in connection with the above matter. This opinion may not be
relied upon by you for any other purpose or relied upon by any other
Person without our prior written consent.
Very truly yours,
Davis Polk & Wardwell
SCHEDULE A
----------
Lessee
Federal Express Corporation
2007 Corporate Avenue
Memphis, Tennessee 38132
Owner Trustee
State Street Bank and Trust Company
of Connecticut, National Association
Two International Place
4th Floor
Boston, Massachusetts 02110
Indenture Trustee, Pass Through Trustee & Subordination Agent
First Security Bank, National Association
79 South Main Street
Salt Lake City, Utah 84111
Underwriters
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
First Chicago Capital Markets, Inc.
Corporate Securities
One First National Plaza
Chicago, Illinois 60670
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
J.P. Morgan & Co.
60 Wall Street
New York, New York 10260
Liquidity Provider
Kredietbank N.V., New York Branch
125 West 55th Street
New York, New York 10019
EXHIBIT A(1)(b)(ii)
[Letterhead of Davis Polk & Wardwell]
[Delivery Date]
To Each of the Parties named on Schedule A Hereto
Re: Federal Express Corporation Trust No. N584FE
Ladies and Gentlemen:
We have acted as special counsel for Federal Express
Corporation, a Delaware corporation ("Federal Express"), in connection with
the transactions contemplated by the Participation Agreement (Federal Express
Corporation Trust No. N584FE), dated as of May 1, 1997 (the "Participation
Agreement"), among Federal Express, as Lessee, _________________, as Owner
Participant, State Street Bank and Trust Company of Connecticut, National
Association, not in its individual capacity but solely as Owner Trustee, and
First Security Bank, National Association, not in its individual capacity,
except as otherwise stated, but solely as Indenture Trustee, Pass Through
Trustee and Subordination Agent, relating to the Aircraft. This opinion is
being delivered pursuant to Section 4.02(d)(ii) of the Participation
Agreement. Capitalized terms not otherwise defined herein have the meanings
assigned thereto in the Participation Agreement.
The Participation Agreement provides, among other things, for
the financing on the Delivery Date of the Owner Trustee's payment of a portion
of the Purchase Price of one McDonnell Douglas MD-11F Aircraft (the "Aircraft")
using the proceeds from the public offering of the Pass Through Certificates.
On the Certificate Closing Date, three Classes of Pass Through Certificates
were issued by separate Pass Through Trusts, each formed to acquire, among
other securities, the Certificates bearing a particular interest rate and
having a particular Maturity issued under the Indenture. The Aircraft is to
be leased to Federal Express by the Owner Trustee pursuant to the Lease and
subjected to the Lien of the Indenture, and is to be delivered by the Owner
Trustee to the Lessee on this date, and in connection with the delivery of the
Aircraft, the Owner Trustee and Federal Express will execute and deliver the
Lease Supplement, and the Owner Trustee will execute and deliver the Indenture
and Security Agreement Supplement.
In connection with the opinions expressed below, we have
examined executed counterparts of the Operative Agreements, the Pass Through
Certificates, the Pass Through Agreement and each Series Supplement (the
"Transaction Agreements"). We have also examined originals, or copies
certified to our satisfaction, of such other agreements, documents,
certificates and statements of governmental officials and corporate officers
as we have deemed necessary or advisable as a basis for such opinions. In such
examination, we have assumed the genuineness of all signatures and the
authenticity of all documents submitted to us as originals and the conformity
with the originals of all documents submitted to us as copies.
As to any facts material to our opinions expressed below, we
have, with your consent, relied on the representations and warranties made in
or pursuant to the Participation Agreement and the other documents referred to
therein, the accuracy of which we have not independently verified. In
addition, we have, when relevant facts were not independently established by
us, relied, to the extent we deemed such reliance proper, upon certificates of
public officials and certificates, telegrams and other written or telephoned
statements of officers of the parties referred to herein.
Based on the foregoing, it is our opinion that:
1. With respect to that portion, if any, of the Aircraft and
the other property included in the Lessor's Estate as may not be covered by the
recording system established by the FAA pursuant to Section 44107 of the
Transportation Code, no filing or recording of any document or other action was
or is necessary in order to establish the Owner Trustee's title thereto and
interest therein as against Federal Express and any third parties.
2. Subject to execution and delivery of the Lease Supplement
and the Indenture and Security Agreement Supplement for the Aircraft and to the
registration of the Aircraft with the FAA in the name of the Owner Trustee, the
Lease, as supplemented, will create a valid leasehold interest in the
Aircraft, the entitlement thereof to the benefits of recordation under the
Transportation Code being subject to the due and timely filing and, where
appropriate, recording of (A) the FAA Bill of Sale, (B) the Trust Agreement,
(C) the Lease (with the Lease Supplement covering the Aircraft, the Indenture
and the Indenture and Security Agreement Supplement covering the Aircraft
attached as exhibits) and (D) the Indenture (with the Indenture and Security
Agreement Supplement covering the Aircraft attached as an exhibit), pursuant
to the Transportation Code, and assuming that at the time of such filing no
other documents relating to the Aircraft have been filed pursuant to the
Transportation Code.
3. Assuming (i) the due authorization, execution and delivery
of the Transaction Agreements by each of the parties to each such document
(other than Federal Express), (ii) each such party has full power and legal
right to enter into and perform its respective obligations under the
Transaction Agreements, (iii) that the execution, delivery and performance of
each of the Transaction Agreements by each of the parties thereto will not
violate the respective parties' constituent documents, (iv) the due
authorization, execution, issuance and delivery by the Owner Trustee, and the
due authentication by the Indenture Trustee, of the Certificates issued under
the Indenture in accordance with the terms of the Indenture, (v) the due
authorization, execution, issuance, delivery and authentication by the Pass
Through Trustee of the Pass Through Certificates issued under the Pass Through
Agreement and the Series Supplement relating to such Pass Through
Certificates, in each case in accordance with the terms of the Pass Through
Agreement and such Series Supplement, and (vi) that the form of each
Transaction Agreement is in compliance with all applicable laws and
governmental rules and regulations (other than the laws of the United States
and the State of New York), then: (A) to the extent governed by New York law,
each Transaction Agreement in form constitutes a legal, valid and binding
agreement of each party thereto enforceable against each such party in
accordance with its terms; (B) the Indenture creates, for the benefit of the
Holders, the security interest in the Trust Indenture Estate that it purports
to create; (C) the Certificates are legal, valid and binding obligations of
the Owner Trustee enforceable against the Owner Trustee in accordance with
their terms and the terms of the Indenture and are entitled to the benefits of
the Indenture, including the benefit of the security interest created thereby;
and (D) the beneficial interest of the Owner Participant under the Trust
Agreement in and to the properties which are part of the Trust Indenture
Estate is subject, to the extent provided in the Indenture, as supplemented by
the Indenture and Security Agreement Supplement, to the Lien of the Indenture
in favor of the Holders. The opinions set forth in this paragraph 3 are
subject to the due filing and recording, where appropriate, with the FAA of
the documents referred to in paragraph 2 above.
4. (a) Each of the Transaction Agreements to which Federal
Express is a party has been duly authorized, executed and delivered by Federal
Express.
(b) The execution, delivery and performance by Federal Express
of each of the Transaction Agreements to which Federal Express is a party do
not, or did not on the date of execution thereof, violate, and fully comply,
or did fully comply on the date of execution thereof, with, any laws and
governmental rules and regulations of the State of New York that may be
applicable to Federal Express. The opinion set forth in this paragraph 4(b)
is rendered without regard to the taking of any action or the conduct of any
other business by Federal Express in the State of New York other than the
transactions contemplated by the Transaction Agreements.
5. The execution, delivery and performance of the Transaction
Agreements (other than the Certificates) by the Owner Trustee in its individual
or trust capacity, as the case may be, and the issuance, execution, delivery
and performance of the Certificates by the Owner Trustee in its trust capacity
do not violate, and fully comply with, any laws and governmental rules and
regulations of the State of New York that may be applicable to the Owner
Trustee in its individual or trust capacity, as the case may be. The opinion
set forth in this paragraph 5 is rendered without regard to the effect, if
any, on such issuance (in the case of the Certificates), execution, delivery
or performance, of the taking of any action, the conduct of any business or
the exercise of any other powers by State Street Bank and Trust Company of
Connecticut, National Association in its individual or trust capacity in the
State of New York not related to the transactions contemplated by the
Transaction Agreements. We have assumed that State Street Bank and Trust
Company of Connecticut, National Association has made the filings necessary to
comply with Section 131.3 of the Banking Law of the State of New York, however
we express no opinion as to whether State Street Bank and Trust Company of
Connecticut, National Association is required to comply with said Section
131.3.
6. All the properties which are part of the Trust Indenture
Estate (including all right, title and interest of the Owner Trustee pledged
and mortgaged by it pursuant to the Indenture in and to the Aircraft and the
Lease) have been pledged and mortgaged with the Indenture Trustee as part of
the Trust Indenture Estate (subject to the due filing and, where appropriate,
recording of those documents referred to in paragraph 2 above and the
financing statement referred to in Section 4.02(f) of the Participation
Agreement), and the beneficial interest of the Owner Participant under the
Trust Agreement in and to such properties are subject, to the extent provided
in the Indenture, to the Lien of the Indenture in favor of the Holders of the
Certificates issued and to be issued under the Indenture.
7. The Indenture and Security Agreement Supplement, pursuant
to the Granting Clause of the Indenture, creates, as security for the
Certificates duly issued and to be issued under the Indenture, the first
priority security interest in the Aircraft it purports to create, the
perfection and rank thereof being subject to the registration with the FAA of
the Aircraft in the name of the Owner Trustee and the due filing and, where
appropriate, recording in accordance with the Transportation Code of the
documents referred to in paragraph 2 above. We express no opinion with
respect to the status of any security interest in any portion of the Aircraft
which does not constitute an "aircraft" or "aircraft engine", as defined in
paragraphs (6) and (7) of Section 40102(a) of the Transportation Code.
8. Except for (i) the filings and recordings referred to in
paragraph 2 above, (ii) the registration of the issuance and sale of the Pass
Through Certificates under the Securities Act and (iii) compliance with the
securities laws of each applicable state, neither the execution and delivery by
Federal Express of the Participation Agreement or any other Operative
Agreement to which it is a party, nor the consummation of any of the
transactions by Federal Express contemplated thereby, requires the consent or
approval of, the giving of notice to, or the registration with, or the taking
of any other action in respect of, the Department of Transportation, the FAA,
the Securities and Exchange Commission or any other Federal or New York State
governmental authority.
9. It is not necessary, in connection with the creation of
the beneficial interest of the Owner Participant in the Trust Indenture Estate
under the circumstances contemplated by the Participation Agreement to
register such beneficial interest under the Securities Act of 1933, as
amended, or to qualify the Trust Agreement under the Trust Indenture Act of
1939, as amended.
10. The provisions of Section 1110 of the United States
Bankruptcy Code will apply to the Aircraft for the benefit of the Lessor, as
lessor under and by reason of the Lease. The Lease, including the rights under
Section 1110 of the United States Bankruptcy Code, has been assigned to the
Indenture Trustee pursuant to the Indenture as part of the collateral for the
Certificates and, as assignee, the Indenture Trustee has the benefit of Section
1110.
The foregoing opinions are subject to the following
qualifications:
(a) We have relied, with your consent, without independent
investigation and verification and subject to the assumptions and
qualifications contained therein, upon the opinions of Daugherty,
Fowler & Peregrin and George W. Hearn, Vice President - Law of
Federal Express to be delivered to you and dated the date hereof, for
purposes of the matters covered thereby.
(b) We are qualified to practice law in the State of New York,
and we do not purport to be experts on, or to express any opinion
herein concerning, any laws other than the laws of the State of New
York, the laws of the United States and the General Corporation Law
of the State of Delaware. We express no opinion as to any matters
involving aviation law.
(c) The opinion contained in paragraph 3(A) above as to
enforceability is subject to (i) applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement
of creditors' rights generally and (ii) general principles of equity
which may affect the remedies provided in the agreements referred to
in said opinions, which laws and principles, however, do not in our
opinion make the remedies provided in said agreements inadequate for
the practical realization of the benefits of the security intended to
be provided thereby.
(d) This opinion is rendered solely to you at Federal Express's
request in connection with the above matter. This opinion may not be
relied upon by you for any other purpose or relied upon by any other
Person without our prior written consent.
Very truly yours,
Davis Polk & Wardwell
SCHEDULE A
----------
Lessee
Federal Express Corporation
2007 Corporate Avenue
Memphis, Tennessee 38132
Owner Trustee
State Street Bank and Trust Company
of Connecticut, National Association
Two International Place
4th Floor
Boston, Massachusetts 02110
Indenture Trustee, Pass Through Trustee & Subordination Agent
First Security Bank, National Association
79 South Main Street
Salt Lake City, Utah 84111
Underwriters
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
First Chicago Capital Markets, Inc.
Corporate Securities
One First National Plaza
Chicago, Illinois 60670
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
J.P. Morgan & Co.
60 Wall Street
New York, New York 10260
Liquidity Provider
Kredietbank N.V., New York Branch
125 West 55th Street
New York, New York 10019
Owner Participant
EXHIBIT A(2)
[Letterhead of Ray, Quinney & Nebeker]
[Certificate Closing Date]
To the Persons Listed in Schedule A Attached Hereto
Re: Federal Express Corporation Trust No. N584FE
Ladies and Gentlemen:
We have acted as special counsel to First Security Bank,
National Association, a national banking association ("First Security"), in
connection with the Participation Agreement (Federal Express Corporation Trust
No. N584FE), dated as of May 1, 1997 (the "Participation Agreement"), among
Federal Express Corporation, as Lessee and Initial Owner Participant, State
Street Bank and Trust Company of Connecticut, National Association, not in its
individual capacity, except as otherwise stated, but solely as Owner Trustee,
and First Security, not in its individual capacity, except as otherwise
stated, but solely as Indenture Trustee, Pass Through Trustee and
Subordination Agent. Pursuant to the Participation Agreement, one McDonnell
Douglas MD-11F aircraft bearing U.S. Registration No. 1752K (the "Aircraft")
is being financed. This opinion is furnished pursuant to Section 4.01(k)(iv)
of the Participation Agreement. Capitalized terms used herein and not
otherwise defined are used as defined in the Participation Agreement, except
that references herein to any instrument shall mean such instrument as in
effect on the date hereof.
We have examined executed counterparts or copies otherwise
identified to our satisfaction of the following documents:
(a) The Participation Agreement;
(b) The Indenture;
(c) The Ancillary Agreement I;
(d) The Ancillary Agreement II:
(e) The Collateral Account Control Agreement; and
(f) The Certificates.
(each of the documents identified in paragraphs (a) through (g) above are
collectively referred to as the "Indenture Trustee Documents").
We have also examined originals or copies of such other
documents, such corporate records, certificates and other statements of
governmental officials and corporate officers and other representatives of the
corporations or entities referred to herein and such other instruments as we
have deemed necessary or appropriate for the purposes of this opinion.
Moreover, as to certain facts material to the opinions expressed herein, we
have relied upon representations and warranties contained in the Indenture
Trustee Documents.
Based upon the foregoing and upon an examination of such
questions of law as we have considered necessary or appropriate, and subject
to the assumptions, exceptions and qualifications set forth below, we advise
you that, in our opinion:
1. First Security is a national banking association duly
organized and validly existing under the laws of the United States of
America holding a valid certificate to do business as a national
banking association, with banking and trust powers, and each of First
Security and the Indenture Trustee, as the case may be, has or had,
on the date of execution thereof, full corporate power, authority and
legal right to execute, deliver and perform each of the Indenture
Trustee Documents to which it is or is to be a party and to
authenticate the Certificates delivered on the Certificate Closing
Date.
2. Each of First Security and the Indenture Trustee, as the
case may be, has duly authorized, executed and delivered each
Indenture Trustee Document to which it is a party; each such document
constitutes a legal, valid and binding obligation of the Indenture
Trustee (and, to the extent set forth in the respective Indenture
Trustee Document, of First Security) enforceable against the
Indenture Trustee (and, to the extent set forth in the respective
Indenture Trustee Document, against First Security) in accordance
with its terms.
3. The Certificates issued and dated the Certificate Closing
Date have been duly authenticated and delivered by the Indenture
Trustee pursuant to the terms of the Indenture.
4. Neither the authorization, execution and delivery by the
Indenture Trustee or First Security, as the case may be, of the
Indenture Trustee Documents, nor the authentication and delivery by
the Indenture Trustee of the Certificates nor the fulfillment or
compliance by the Indenture Trustee or First Security with the
respective terms and provisions thereof nor the consummation of any
of the transactions by the Indenture Trustee or First Security, as
the case may be, contemplated thereby, requires the consent or
approval of, the giving of notice to, the registration with, or the
taking of any other action in respect of, any court or administrative
or governmental authority or agency of the State of Utah or the
United States of America governing the banking or trust powers of
First Security.
5. The execution, delivery and performance by the Indenture
Trustee or First Security, as the case may be, of each of the
Indenture Trustee Documents and the authentication and delivery of
the Certificates by the Indenture Trustee are not in violation of the
charter or by-laws of First Security or of any law, governmental
rule, or regulation of the State of Utah or the United States of
America governing the banking or trust powers of First Security or,
to our knowledge, of any indenture, mortgage, bank credit agreement,
note or bond purchase agreement, long-term lease, license or other
agreement or instrument to which it is a party or by which it is
bound or, to our knowledge, of any judgment or order of the State of
Utah or the United States of America relating to the banking or trust
powers of First Security.
6. There are no fees, taxes or other governmental charges
payable by the Owner Trustee, the Indenture Trustee (except taxes
imposed on fees payable to First Security) or the Certificate Holders
to the State of Utah or any political subdivision thereof in
connection with the execution, delivery or performance of any of the
Operative Agreements or in connection with the issuance and
acquisition of the Certificates by the Certificate Holders or the
beneficial interests of the Certificate Holders in the Trust
Indenture Estate solely because First Security) (a) is incorporated
under the laws of the State of Utah, (b) has its principal place of
business in the State of Utah, (c) performs (in its individual
capacity or as Indenture Trustee) any or all of its duties under the
Indenture Trustee Documents in the State of Utah, and (d) engages in
any activities unrelated to the transactions contemplated by the
Indenture Trustee Documents in the State of Utah. Neither the
Indenture Trustee nor the trust created under the Indenture will be
subject to any fee, tax or other governmental charge (except for
taxes imposed on fees payable to First Security) under the laws of
the State of Utah or any political subdivision thereof in existence
on the date hereof, on, based on or measured by, directly or
indirectly, the gross receipts, net income or value of the Trust
Indenture Estate solely because First Security (a) is incorporated
under the laws of the State of Utah, (b) has its principal place of
business in the State of Utah, (c) performs (in its individual
capacity or as Indenture Trustee) any or all of its duties under the
Indenture Trustee Documents in the State of Utah, and (d) engages in
any activities unrelated to the transactions contemplated by the
Indenture Trustee Documents in the State of Utah. There is no fee,
tax or other governmental charge (except for taxes imposed on fees
payable to First Security) under the laws of the State of Utah or any
political subdivision thereof in existence on the date hereof, on,
based on or measured by any payments under the Certificates by reason
of the creation of the trust under the Indenture solely because First
Security (a) is incorporated under the laws of the State of Utah, (b)
has its principal place of business in the State of Utah, (c)
performs (in its individual capacity or as Indenture Trustee) any or
all of its duties under the Indenture Trustee Documents in the State
of Utah, and (d) engages in any activities unrelated to the
transactions contemplated by the Indenture Trustee Documents in the
State of Utah. We express no opinion as to whether or not any fees,
taxes or other charges are now or hereafter may be payable by the
Initial Owner Participant to the State of Utah or any political
subdivision thereof in connection with (a) the execution, delivery or
performance by any of the Indenture, the Participation Agreement or
any of the other Operative Agreements and (b) the making by the
Initial Owner Participant of its investment in the Aircraft.
7. There are no actions, suits, investigations or proceedings
pending or, to our knowledge, threatened against or affecting First
Security or the Indenture Trustee, as the case may be, or any of its
properties in any court or before any administrative agency or
arbitrator, which, if adversely determined, would materially
adversely affect the ability of First Security or the Indenture
Trustee, as the case may be, to perform its obligations under any of
the Indenture Trustee Documents, and there are no pending or, to our
knowledge, threatened actions or proceedings before any court,
administrative agency or tribunal involving First Security or the
Indenture Trustee, as the case may be, in connection with the
transactions contemplated by any of the Indenture Trustee Documents.
The foregoing opinions are subject to the following assumptions,
exceptions and qualifications:
A. We are admitted to practice law in the State of Utah and we
do not hold ourselves out as being experts on the laws of any other
jurisdiction. The foregoing opinions are limited to the laws of the State of
Utah, the federal laws of the United States of America governing the banking
and trust powers of First Security and Title II of the United States Code
entitled "Bankruptcy". However, we express no opinion with respect to (i)
federal securities laws, including the Securities Act of 1933, as amended, the
Securities Exchange Act of 1934, as amended, and the Trust Indenture Act of
1939, as amended, (ii) the Federal Aviation Act of 1958, as amended and (iii)
state securities or blue sky laws. Insofar as the foregoing opinions relate
to the validity and enforceability in the State of Utah of the Certificates
and the other Indenture Trustee Documents expressed to be governed by the laws
of the State of New York, we have assumed that the laws of New York are
identical to the laws of Utah in all material respects, and that the
Certificates and such Indenture Trustee Documents constitute legal, valid,
binding and enforceable documents or instruments under such laws (as to which
we express no opinion). No opinion is expressed as to the priority of any
security interest or as to title to any part of the Trust Estate.
B. The foregoing opinions regarding enforceability of any
document or instrument, are subject to (i) applicable bankruptcy, insolvency,
moratorium, reorganization, receivership and similar laws affecting the rights
and remedies of creditors generally, and (ii) general principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or at law).
C. We have assumed the due authorization, execution and
delivery by each of the parties thereto, other than First Security and the
Indenture Trustee, of the Indenture Trustee Documents to which each is a party
and that each of such parties has the full power, authority and legal right to
execute and deliver each such document.
D. We have assumed that all signatures (other than those of the
Indenture Trustee or First Security) on documents and instruments examined by
us are genuine, that all documents and instruments submitted to us as originals
are authentic, and that all documents and instruments submitted to us as copies
conform with the originals, which facts we have not independently verified.
E. We have assumed that the Participation Agreement and the
transactions contemplated thereby are not within the prohibitions of Section
406 of the Employee Retirement Income Security Act of 1974.
This opinion is rendered solely for your benefit and may not be
relied upon by any other person or entity for any purpose without our prior
written consent.
Very truly yours,
Ray, Quinney & Nebeker
SCHEDULE A
----------
Lessee
Federal Express Corporation
2007 Corporate Avenue
Memphis, Tennessee 38132
Owner Trustee
State Street Bank and Trust Company
of Connecticut, National Association
Two International Place
4th Floor
Boston, Massachusetts 02110
Indenture Trustee, Pass Through Trustee & Subordination Agent
First Security Bank, National Association
79 South Main Street
Salt Lake City, Utah 84111
Underwriters
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
First Chicago Capital Markets, Inc.
Corporate Securities
One First National Plaza
Chicago, Illinois 60670
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
J.P. Morgan & Co.
60 Wall Street
New York, New York 10260
Liquidity Provider
Kredietbank N.V., New York Branch
125 West 55th Street
New York, New York 10019
EXHIBIT A(3)(a)(i)
[Letterhead of Bingham, Dana & Gould]
[Certificate Closing Date]
To Each of the Parties Listed on Schedule A Hereto
Re: Federal Express Corporation Trust No. N584FE
Ladies and Gentlemen:
We have acted as counsel to State Street Bank and Trust Company
of Connecticut, National Association, a national banking association in its
individual capacity ("State Street") and its capacity as Owner Trustee (the
"Owner Trustee") under the Trust Agreement (Federal Express Corporation Trust
No. N584FE) dated as of May 1, 1997 between State Street and Federal Express
Corporation, as Initial Owner Participant ("Initial Owner Participant") (the
"Trust Agreement") in connection with the transactions contemplated by that
certain Participation Agreement (Federal Express Corporation Trust No. N584FE)
dated as of May 1, 1997 (the "Participation Agreement") by and among Federal
Express Corporation (the "Lessee"); the Initial Owner Participant; and First
Security Bank, National Association, in its individual capacity and as
Indenture Trustee (the "Indenture Trustee"), Pass Through Trustee and
Subordination Agent. Except as otherwise defined herein, all capitalized terms
used herein shall have the respective meanings set forth in, or by reference
to, the Participation Agreement.
The Owner Trustee has requested that we deliver this opinion to
you in accordance with Section 4.01 of the Participation Agreement.
Our representation of State Street has been as special counsel
for the purposes stated above. As to all matters of fact (including factual
conclusions and characterizations and descriptions of purpose, intention or
other state of mind), we have relied entirely upon (i) the representations of
the parties set forth in the Operative Agreements and (ii) certificates
delivered to us by the management of State Street and have assumed, without
independent inquiry, the accuracy of those representations and certificates.
We have examined each of the Operative Agreements to which
State Street or the Owner Trustee, as applicable is a party (the "Owner Trustee
Documents"), the Certificate of the Comptroller of the Currency relating to
State Street and originals, or copies certified or otherwise identified to our
satisfaction, of such other corporate records, documents, certificates and
other instruments as we have deemed necessary or advisable for the purposes of
rendering this opinion.
We have assumed the genuineness of all signatures (other than
those on behalf of State Street and the Owner Trustee), the conformity to the
originals of all documents reviewed by us as copies, the authenticity and
completeness of all original documents reviewed by us in original or copy form
and the legal competence of each individual executing any document (other than
on behalf of State Street and the Owner Trustee).
When an opinion set forth below is given to the best of our
knowledge, or to our knowledge, or with reference to matters of which we are
aware or which are known to us, or with another similar qualification, the
relevant knowledge or awareness is limited to the actual knowledge or
awareness of the individual lawyer in the firm that signed this opinion, the
individual lawyers in the firm who have participated directly in the specific
transactions to which this opinion relates or in the preparation of this
opinion and the partner of the firm responsible for State Street corporate
trust matters, and without any special or additional investigation undertaken
for the purposes of this opinion.
Each opinion set forth below relating to the enforceability of
any agreement or instrument against State Street, the Owner Trustee or the
Initial Owner Participant, as applicable, is subject to the following general
qualifications:
(i) as to any agreement to which State Street or the
Owner Trustee, as applicable, is a party, we assume that such
agreement is the legal, valid and binding obligation or each other
party thereto;
(ii) except as otherwise set forth in our opinions 13 and
14 below, the enforceability of any obligation of State Street, the
Owner Trustee and the Initial Owner Participant, may be limited by
bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium, marshaling, or other similar laws and rules of law
affecting the enforcement generally of creditors' rights and remedies
(including such as may deny giving effect to waivers of debtors' or
guarantors' rights);
(iii) no opinion is given herein as to the enforceability
of any particular provision of any of the Owner Trustee Documents
relating to remedies after default or as to the availability of any
specific or equitable relief of any kind. However, we are of the
opinion that, subject to the other limitations and qualifications
contained in this opinion, the remedies provided in the Owner Trustee
Documents, taken as a whole, are adequate for the realization of the
principal benefits or security of said agreements (except for the
economic consequences of procedural or other delay); and
(iv) the enforcement of any rights and the availability
of any specific or equitable relief of any kind may in all cases be
subject to an implied duty of good faith and to general principles of
equity (regardless of whether such enforceability or relief is
considered in a proceeding at law or in equity) and, as to any of
your rights to collateral security, will be subject to a duty to act
in a commercially reasonable manner.
Subject to the limitations set forth herein, we have made such
examination of law as we have deemed necessary for the purposes of this
opinion. The opinions expressed herein are limited solely to the internal
substantive laws of the State of Connecticut and the Federal laws of the United
States of America. No opinion is expressed herein as to the application or
effect of federal securities laws or as to the securities or so-called "Blue
Sky" laws of any state or other jurisdiction. In addition, no opinion is
expressed as to matters governed by the Transportation Code, or by any other
law, statute, rule or regulation of the United States relating to the
acquisition, ownership, registration, use, operation, maintenance, repair,
replacement or sale of or the nature of the Aircraft, Airframe or the Engines.
We have made no examination of, and no opinion is given herein
as to the Owner Trustee's or Initial Owner Participant's title to or other
ownership rights in, or the existence of any liens, charges or encumbrances on,
or adverse claims against, any of the Indenture Estate. We express no opinion
as to the creation, attachment, perfection or priority of any mortgage,
security interest or lien in any of the Indenture Estate.
With your permission and without investigation, with respect to
paragraphs 2, 3 and 4 below in connection with our opinion relating to the
legality, validity, binding effect of the documents there referred to, to the
extent that the laws of the State of Connecticut do not govern such documents,
we have assumed that the laws of the jurisdictions whose laws govern such
documents are not materially different from the internal substantive laws of
the State of Connecticut.
In rendering our opinion in paragraphs 12 and 13 below, we have
assumed that the Initial Owner Participant acquired its interest in the Trust
Estate for fair consideration and in good faith without any intention to
hinder, defraud or defraud or delay the Initial Owner Participant's creditors.
This opinion is rendered solely for the benefit of those
institutions listed on Schedule A hereto and their respective successors and
assigns in connection with the transactions contemplated by the Operative
Agreements and may not be used or relied upon by any other person or for any
other purpose.
Based upon the foregoing, we are of the opinion that:
1. State Street is a national banking association duly
organized, validly existing and in good standing with the Comptroller
of the Currency under the laws of the United States of America, is a
"citizen of the United States" within the meaning of Section
40102(a)(15) of Title 49 of the United States Code, as amended and
has full corporate power, authority and legal right to execute,
deliver and perform its obligations under the Trust Agreement and, as
Owner Trustee under the Trust Agreement, to execute, deliver and
perform its obligations under the other Owner Trustee Agreements and
to issue, execute, deliver and perform its obligations under the
Certificate.
2. State Street has duly authorized, executed, and delivered
the Participation Agreement and the Trust Agreement and the
Participation Agreement and the Trust Agreement constitute the legal,
valid and binding obligation of State Street, enforceable against it
in its individual capacity in accordance with the terms thereof.
3. The Owner Trustee is duly authorized under the Trust
Agreement to execute, deliver and perform each of the Owner Trustee
Agreements and each such Owner Trustee Agreement constitutes a legal,
valid and binding obligation of the Owner Trustee enforceable against
the Owner Trustee in accordance with its terms. The Certificate has
been duly issued, executed and delivered by the Owner Trustee,
pursuant to authorization contained in the Trust Agreement, and
assuming due authentication thereof by the Indenture Trustee,
constitutes the legal, valid and binding obligation of the Owner
Trustee enforceable against the Owner Trustee in accordance with its
terms and the terms of the Indenture; and the Certificate is entitled
to the benefits and security afforded by the Indenture in accordance
with its terms and the terms of the Indenture.
4. Assuming the due authorization, execution and delivery of
the Trust Agreement by the Initial Owner Participant and that the
Initial Owner Participant has the requisite corporate power and
authority to enter into and perform its obligations under the Trust
Agreement, said Trust Agreement constitutes the legal, valid and
binding obligation of the Initial Owner Participant, enforceable
against the Initial Owner Participant in accordance with the terms
thereof.
5. The Trust Agreement duly creates a legal and valid trust
under Connecticut law; the trust created by the Trust Agreement
exists for the benefit of the Initial Owner Participant as provided
therein and creates for the benefit of the Initial Owner Participant
the interest in the Trust Estate which the Trust Agreement by its
terms purports to create, subject however to the provisions of, and
the Liens created by, the Indenture and the Lease.
6. To the extent that the Uniform Commercial Code of the State
of Connecticut (the "UCC") is applicable, except for the Indenture
Trustee's taking possession of all monies and securities (including
instruments) constituting part of the Trust Indenture Estate, no
action, including the filing or recording of any document, is
necessary (i) to create under the UCC the security interest in the
Trust Indenture Estate (including the grant and assignment unto the
Indenture Trustee of the security interest in all estate, right,
title and interest of the Owner Trustee in, to and under the Lease
and the Participation Agreement) which the Indenture by its terms
purports to create in favor of the Indenture Trustee, and (ii) to
perfect in the State of Connecticut such security interest, except
for the filing of a UCC financing statement complying with the formal
requisites of Section 9-402 of the UCC in the office of the Division
of Corporations and Commercial Code of the State of Connecticut with
respect to the security interest, which filing has been duly
effected, and the filing of continuation statements with respect
thereto required to be filed at periodic intervals under the UCC.
7. Neither the execution, delivery or performance by the Owner
Trustee, in its individual capacity or as Owner Trustee, as the case
may be, of the Certificates or the Owner Trustee Documents, the
consummation by the Owner Trustee, in its individual capacity or as
Owner Trustee, as the case may be, of any of the transactions
contemplated thereby nor the compliance by the Owner Trustee, in its
individual capacity or as Owner Trustee, as the case may be, with any
of the terms and provisions thereof (i) requires any approval of its
stockholders, any consent or approval of or the giving of notice to
any trustees or holders of any indebtedness or obligations of it
known to us, or (ii) violates its charter documents or by-laws, or
contravenes or will contravene any provision of, or constitutes a
default under, or results in any breach of, or results in the
creation of any Lien (other than as permitted under the Operative
Agreements) upon property under, any indenture, mortgage, chattel
mortgage, deed of trust, conditional sales contract, bank loan or
credit agreement, license or other agreement or instrument, in each
case, known to us to which it is a party or by which it is bound or
contravenes any Connecticut or United States applicable law governing
the banking or trust powers of the Owner Trustee, or any judgment or
order in each case, known to us applicable to or binding on it.
8. To our knowledge, there are no proceedings or actions
pending or threatened against or affecting the Owner Trustee, in its
individual capacity or as Owner Trustee, before any governmental
authority which, individually or in the aggregate, if adversely
determined, would materially and adversely affect the ability of the
Owner Trustee, in its individual capacity or as Owner Trustee, as the
case may be, to enter into or to perform its obligations under the
Owner Trustee Documents or the Certificate.
9. No consent, approval, order or authorization of, giving of
notice to, or registration with, or taking of any other action in
respect of, any Connecticut or United States governmental authority
regulating the banking or trust powers of the Owner Trustee, in its
individual capacity, is required for the execution and delivery of,
or the carrying out by, the Owner Trustee in its individual capacity
or as Owner Trustee, as the case may be, of any of the transactions
contemplated by the Owner Trustee Documents, other than any such
consent, approval, order, authorization, registration, notice or
action as has been duly obtained, given or taken.
10. There are no fees, taxes or other charges payable by the
Owner Trustee, the Trust Estate or the trust created by the Trust
Agreement imposed by the State of Connecticut or any political
subdivision or taxing authority thereof in connection with the
execution, delivery and performance by State Street, individually or
as Owner Trustee, of the Owner Trust Documents (other than franchise
or other taxes based on or measured by any fees or compensation
received by State Street, acting as the Owner Trustee, for services
rendered in connection with the transactions contemplated by the
Operative Agreements) and, assuming that the trust created by the
Trust Agreement will not be taxable as a corporation, but, rather,
will be characterized as a grantor trust under subpart E, Part I of
Subchapter J of the Internal Revenue Code of 1986, as amended, or
will be otherwise ignored for Federal tax purposes, (i) such trust
will not be subject to any fees, taxes or other charges imposed by
the State of Connecticut or any political subdivision thereof based
on income, receipts, value or otherwise, (ii) Holders that are not
residents of or otherwise subject to tax in Connecticut will not be
subject to any taxes imposed by the State of Connecticut or any
political subdivision thereof as a result of purchasing, holding
(including receiving payments with respect to) or selling a
Certificate and (iii) assuming the Initial Owner Participant is not a
Connecticut resident or otherwise subject to tax in Connecticut and
further assuming that the assets of the trust created by the Trust
Agreement are not deemed to be located in Connecticut, the Initial
Owner Participant will not be subject to any taxes imposed by the
State of Connecticut or any political subdivision thereof solely as a
result of being the beneficial owner of the trust created by the
Trust Agreement.
11. To our knowledge, there exist no liens or encumbrances
affecting the right, title and interest of the Owner Trustee in and
to the Trust Estate resulting from claims against State Street not
related to the ownership of the Trust Estate or any other transaction
contemplated by the Operative Agreements.
12. All the properties which are part of the Indenture Estate
(including all right, title and interest of the Owner Trustee pledged
and mortgaged by it pursuant to the Indenture) have been pledged and
mortgaged with the Indenture Trustee as part of the Indenture Estate,
and the beneficial interest of the Initial Owner Participant under
the Trust Agreement in and to such properties is subject, to the
extent provided in the Indenture, to the liens of the Indenture in
favor of the holders from time to time of the Certificate.
13. Neither a Connecticut court nor a Federal court applying
federal law or Connecticut law, if properly presented with the issue
and after having properly considered such issue, would permit the
Initial Owner Participant to terminate the Trust Agreement, except as
otherwise provided therein, until the Lien of the Indenture on the
Indenture Estate has been released and until payment in full of the
principal of, and premium, if any, and interest on, the Certificates
and all other sums due the holders of the Certificates has been made.
14. Under the laws of the State of Connecticut, as long as the
Trust Agreement has not been terminated in accordance with its terms,
creditors of any person that is an Initial Owner Participant, holders
of a lien against the assets of any such person and representatives of
creditors of any such person, such as trustees, receivers or
liquidators (whether or not any insolvency proceeding has been
commenced) (collectively the "Creditors") may acquire legal, valid
and enforceable claims and liens, as to the Trust Estate, only
against the beneficial interest of such person in the Trust Estate,
and do not have, and may not through the enforcement of such
Creditors' rights acquire, any other legal, valid, and enforceable
claim or lien against the Trust Estate.
Very truly yours,
Bingham, Dana & Gould LLP
SCHEDULE A
----------
Lessee
Federal Express Corporation
2007 Corporate Avenue
Memphis, Tennessee 38132
Owner Trustee
State Street Bank and Trust Company
of Connecticut, National Association
Two International Place
4th Floor
Boston, Massachusetts 02110
Indenture Trustee, Pass Through Trustee & Subordination Agent
First Security Bank, National Association
79 South Main Street
Salt Lake City, Utah 84111
Underwriters
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
First Chicago Capital Markets, Inc.
Corporate Securities
One First National Plaza
Chicago, Illinois 60670
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
+J.P. Morgan & Co.
60 Wall Street
New York, New York 10260
Liquidity Provider
Kredietbank N.V., New York Branch
125 West 55th Street
New York, New York 10019
[Letterhead of Bingham, Dana & Gould]
[Certificate Closing Date]
To Each of the Parties Listed on Schedule A Hereto
Re: Trust Indenture and Security Agreement (Federal Express
Corporation Trust No. N584FE) dated as of May 1, 1997 (the
"Indenture"), between First Security Bank, National Association
(the "Indenture Trustee"), and State Street Bank and Trust
Company of Connecticut, National Association, not in its
individual capacity, but solely as Owner Trustee (the "Owner
Trustee")
Ladies and Gentlemen:
We have acted as special Connecticut counsel to the Owner
Trustee in connection with the Indenture and the Collateral Account Control
Agreement dated as of May 1, 1997 (the "Control Agreement"), among the Owner
Trustee, the Indenture Trustee and State Street Bank and Trust Company, as
Custodian (the "Custodian").
We are issuing this opinion solely in our capacity as counsel
to the Owner Trustee under the circumstances set forth in this paragraph and
solely as to the matters set forth herein. Pursuant to the Indenture, the
Owner Trustee purports to grant to the Indenture Trustee a security interest,
inter alia, in those securities and instruments, presently owned or hereafter
acquired by the Owner Trustee, that are from time to time credited to an
account numbered [*****] (the "Collateral Account") established by the Owner
Trustee with the Custodian and which securities and instruments the Owner
Trustee has directed the Custodian to identify on the books and records of the
Custodian as being subject to a security interest in favor of the Indenture
Trustee to secure the payment to the Indenture Trustee of the Owner Trustee's
obligations (the "Obligations") under the Indenture. Those securities and
instruments which the Owner Trustee has directed the Custodian to so identify
on the books of the Custodian as being subject to such security interest, and
which, at the time of reference thereto, have not been withdrawn from such
identification or the Collateral Account, are hereinafter referred to,
collectively, as the "Liquid Collateral." We have assumed with your
permission for purposes of this opinion that the Liquid Collateral consists
solely of (a) "securities", either "uncertificated securities" or
"certificated securities", as each such term is defined in Section 8-102 of
the Uniform Commercial Code as currently in effect in the State of Connecticut
(the "Connecticut UCC"), (b) "instruments" (as such term is defined in Section
9-105(1)(i) of the Connecticut UCC) and (c) "general intangibles" (as such
term is defined in Section 9-106 of the Connecticut UCC).
For purposes of this opinion, we have examined the Indenture,
the Control Agreement and such other documents and instruments as are referred
to as having been examined by us for purposes of our opinion letter dated May
___,1997, addressed to the parties listed on Schedule A hereto.
As to all matters of fact, we have examined and have relied
entirely upon the representations and warranties contained in and made
pursuant to the Indenture and the Control Agreement, without any independent
investigation of any kind.
We have assumed the genuineness of all signatures (other than
those on behalf of the Owner Trustee and the Custodian), the conformity to the
originals of all documents reviewed by us as copies, the authenticity and
completeness of all original documents reviewed by us in original or copy form,
and the legal competence of each individual executing any document (other than
on behalf of the Owner Trustee and the Custodian).
For purposes of this opinion, we have made such examination of
law as we have deemed necessary. This opinion is limited solely to the
internal substantive laws of the State of Connecticut as applied by courts
located in the State of Connecticut and, where applicable, (i) the revised
Article 8 of the Uniform Commercial Code (with Conforming and Miscellaneous
Amendments to Articles 1, 3, 4, 5, 9 and 10) 1994 Official Text (the "Revised
Article 8") and (ii) the federal laws of the United States of America, in each
case without regard to choice of law. No opinion is given as to the choice of
law which any tribunal may apply to the transactions referred to herein.
Our opinion is further subject to the following exceptions,
qualifications and assumptions, all of which we understand to be acceptable to
you:
(a) We have assumed without any independent investigation
that each party to the transactions contemplated by the Indenture or
the Control Agreement at all times relevant thereto (other than the
Owner Trustee) was duly organized, validly existing and in good
standing under the laws of the jurisdiction in which it was
incorporated or organized, and had and has the full power, authority
and legal right under its certificate of incorporation, articles of
organization and other governing documents, corporate or other
enterprise legislation and applicable laws, as the case may be, to
execute and deliver and perform its obligations under all documents
executed by it in connection with those transactions.
(b) We have assumed without any independent investigation (i)
the due authorization, execution and delivery of each of the Indenture
and the Control Agreement by the Indenture Trustee, (ii) that the
execution, delivery and performance by the Indenture Trustee of each
of the Indenture and the Control Agreement does not and will not
conflict with, or result in a breach of, the terms, conditions or
provisions of, or result in a violation of, or constitute a default
or require any consent (other than such consents as have been duly
obtained) under, any organizational document, any order, judgment,
arbitration award or stipulation, or any agreement, to which the
Indenture Trustee is a party or is subject or by which any of the
properties or assets of the Indenture Trustee is bound, (iii) that
the Owner Trustee has received "value," as defined under the
Connecticut UCC, for the incurrence of the Obligations, (iv) that,
whenever the Custodian receives instructions from the Owner Trustee
for the Custodian to note on its books and records that any
securities or instruments credited to the Collateral Account are to be
subject to a security interest in favor of the Indenture Trustee to
secure the payment of the Obligations, such instructions will have
been duly authorized by or on behalf of the Owner Trustee and (v)
that, when the Indenture Trustee is to act in connection with any of
the transactions contemplated by the Indenture, it is acting in its
capacity as Indenture Trustee.
(c) We have made no examination of, and no opinion is given
herein as to, the Owner Trustee's title to or other ownership rights
in, or the existence of any liens, charges or encumbrances on, or
adverse claims against, the Liquid Collateral, other than the
security interest in favor of the Indenture Trustee as contemplated
by the Indenture and the Control Agreement, and have assumed that the
Owner Trustee has, or at the time of any purported attachment of the
security interest in the relevant Liquid Collateral will have, rights
in the Liquid Collateral.
(d) The perfection and the effect of perfection and
non-perfection of a security interest in the Liquid Collateral that
comprises "uncertificated securities" are, pursuant to Section
9-103(6) of the Connecticut UCC, and the effectiveness of
registration by the issuer and the rights and duties of the issuer
with respect to the registration of transfer, pledge or release of an
"uncertificated security" are, pursuant to Section 8-106 of the
Connecticut UCC, in each case, governed by the laws of the respective
jurisdictions of organization of the issuer or issuers of such
securities, including the conflict of laws rules of such
jurisdictions. Therefore, we express no opinion with respect to such
matters regarding "uncertificated securities" issued by issuers
organized outside of the State of Connecticut other than book-entry
Treasury securities referred to below.
(e) We point out that, pursuant to Part 357 of Title 31 of the
United States Code of Federal Regulations ("CFR"), with respect to
United States "book-entry Treasury securities" maintained by a Federal
Reserve Bank and, pursuant to other relevant sections of the CFR, with
respect to various other securities issued or guaranteed by the
federal government of the United States or an agency thereof or a
corporation sponsored thereby and maintained by a Federal Reserve
Bank, the perfection of security interests granted by commercial,
non-governmental parties in book-entry Treasury securities, or such
other federal securities, as the case may be, held in a securities
account of a participant financial institution, such as the
Custodian, maintaining such account with such Federal Reserve Bank,
will be governed by the law of the jurisdiction determined in
accordance with Section 357.11 of Title 31 of the CFR. If that
jurisdiction has not adopted Revised Article 8, then such jurisdiction
will be deemed to have adopted Revised Article 8 for purposes of
determining the law governing such perfection. Accordingly, although
Revised Article 8 has not been enacted by Connecticut as part of the
Connecticut UCC, nevertheless, pursuant to Part 357 of Title 31 of the
CFR, Revised Article 8 governs the perfection of a security interest
in book-entry Treasury securities to the extent that Connecticut law
would otherwise be applicable thereto.
(f) We have also assumed that (i) any securities comprised in
the Liquid Collateral and held by Depository Trust Company or another
clearing corporation will be held by Depository Trust Company or such
other clearing corporation for the direct account of the Custodian
and not for the account of the Custodian through any other financial
intermediary, (ii) any securities comprised in the Liquid Collateral
and not constituting either (x) "certificated securities" (as defined
in Section 8-102 of the Connecticut UCC) for which the Custodian
physically holds the certificate or certificates evidencing solely
such securities, or (y) "uncertificated securities" (as defined in
Section 8-102 of the Connecticut UCC) for which the Custodian is the
registered owner on the books of the issuer solely of such
securities, will constitute, or will be held as part of, a fungible
bulk of such "securities" that are registered in the name of the
Custodian or are shown on the Custodian's account on the books of
another financial intermediary, (iii) any "certificated securities"
(as defined in Section 8-102 of the Connecticut UCC) comprised in the
Collateral, if held directly by the Custodian, will be at all times
in the physical possession of the Custodian, and any other
"instruments" (as defined in Section 9-105(1)(i) of the Connecticut
UCC) comprised in the Collateral will be at all times held directly
by and in the physical possession of the Custodian, and (iv) any
securities comprised in the Liquid Collateral consisting of
"book-entry Treasury securities" or other uncertificated federal
securities will be credited to a direct account of the Custodian with
a Reserve Bank (as such term is defined in the relevant section of
the CFR) and not for the account of the Custodian through a financial
intermediary.
(g) We do not express any opinion as to the attachment or
perfection of any security interest in (i) any securities that are
maintained with, or held on the system of, Cedel S.A., or any like
maintenance, clearing or settlement system operating outside of the
United States of America, (ii) any collateral of a type other than
"securities" or "general intangibles" (as defined in Section 9-106 of
the Connecticut UCC) or "instruments" (as defined in Section
9-105(1)(i) of the Connecticut UCC), (iii) the Collateral Account, to
the extent that the Collateral Account constitutes an asset, other
than general intangibles, separate from the property credited
thereto, (iv) any Liquid Collateral which, at the time of reference
thereto, is no longer identified as subject to a security interest
in favor of the Indenture Trustee or has otherwise been withdrawn from
the Collateral Account, or (v) any identifiable proceeds of any Liquid
Collateral (A) following the lapse of the ten day period set forth in
Section 9-306(3) of the Connecticut UCC, to the extent that such
proceeds do not constitute securities, instruments or general
intangibles in which a security interest is perfected in the manner
contemplated by this opinion, as if such proceeds were original
Liquid Collateral, (B) where such proceeds constitute securities and
in which proceeds a security interest is not perfected in the manner
contemplated by this opinion, as if such proceeds were original
collateral, or (C) where the proceeds constitute collateral which is
excluded from Article 8 or 9 of the Connecticut UCC.
(h) We express no opinion as to the priority of such security
interest over any other or competing interest in or claims against
such Liquid Collateral.
(i) We have assumed that (i) the Custodian, in the ordinary
course of business, accepts for deposit securities as a service for
its customers, maintains securities accounts in the names of such
customers reflecting ownership of or interests in such securities,
and, in regard to the transactions contemplated by the Indenture, is
acting in such capacity, (ii) all securities from time to time
credited to the Collateral Account and to be comprised in the Liquid
Collateral will have been "transferred" (within the meaning of
Section 8-313(1) of the Connecticut UCC) to the Custodian by the
issuers or prior holders of such Liquid Collateral, (iii) the records
of the Custodian indicate and will, at the time of reference thereto,
indicate that the aggregate amount of each security comprised in the
Liquid Collateral, together with all other such securities carried by
the Custodian for its customers and for its proprietary account, is
at least equal to the aggregate amount of such security carried by it
for its customers and for its proprietary account, (iv) the books and
records of the Custodian indicate and will, at the time of reference
thereto, indicate that the securities to be comprised in the Liquid
Collateral are registered on the books and records of the Custodian
as being for the beneficial account of the Owner Trustee, subject to,
as identified on such books and records, the security interest
therein in favor of the Indenture Trustee, and (v) the Custodian has
sent and, at the time of reference thereto, will have sent the
confirmations of such entries and identifications to the Indenture
Trustee and to Federal Express Corporation.
(j) In so far as our opinion relates to the enforceability of
any obligations of the Owner Trustee, the enforcement of such
obligations may be limited by bankruptcy, insolvency, reorganization,
moratorium, marshalling or other laws and rules of law affecting the
enforcement generally of creditors' rights and remedies (including
such as may deny giving effect to waivers of debtors' or guarantors'
rights); and we express no opinion as to (i) the status under Section
548 of the Bankruptcy Code and applicable state fraudulent conveyance
laws of the obligations of the Owner Trustee under the Indenture or
interests purported to be granted pursuant to the Indenture, (ii) the
enforceability of any particular provision of the Indenture relating
to remedies after default or as to the availability of any specific
or equitable relief of any kind (and we point out that the
enforcement of any of your rights may in all cases be subject to an
implied duty of good faith and fair dealing and to general principles
of equity, regardless of whether such enforceability is considered in
a proceeding at law or in equity, and, as to any of your rights to
collateral security, will be subject to a duty to act in a
commercially reasonable manner) or (iii) the enforceability of any
particular provision of the Indenture relating to (A) waivers of
defenses, of rights to trial by jury, or rights to object to
jurisdiction or venue and other rights or benefits bestowed by
operation of law, (B) the effect of suretyship defenses, or defenses
in the nature thereof, with respect to obligations of any applicable
guarantor, joint obligator or surety, (C) waivers of provisions which
are not capable of waiver under Sections 1-102(3) and 9-501(3) of the
Connecticut UCC, (D) the grant of powers of attorney to the Indenture
Trustee, (E) exculpation clauses, indemnity clauses and clauses
relating to releases or waivers of unmatured claims or rights, (F)
interest or other charges that may be usurious under applicable law,
or (G) the collection of interest on overdue interest or providing
for a penalty rate of interest or late charges on overdue or
defaulted obligations. However, notwithstanding the qualification set
forth in the foregoing clause (ii), and excluding the parenthetical
in that clause, subject to the other exceptions, qualifications and
limitations set forth in this opinion (including the parenthetical in
clause (ii) and subject to the fact that there may be economic
consequences arising out of any procedural or other delay on account
of the limitation or unenforceability of any particular provision of
the Indenture relating to remedies after default, such limitation or
unenforceability does not, in our judgment, render the provisions of
the Indenture and the Control Agreement relating to remedies after
default, taken as a whole, inadequate for the practical realization
of the benefits of enforcement of a security interest in the Liquid
Collateral following the receipt by the Custodian of an enforcement
notice properly given under the Indenture and the Control Agreement by
the Indenture Trustee to the Custodian with respect to such Liquid
Collateral.
(k) With respect to property as to which the security interest
purported to be granted pursuant to the Indenture attaches after the
date hereof, we call to your attention that Section 552 of the
Bankruptcy Code limits the extent to which assets acquired by a
debtor after the commencement of a case under the United States
Bankruptcy Code may be subject to a security interest arising from a
security agreement entered into by the debtor before the commencement
of such case. We further call to your attention that under Section
547 of the Bankruptcy Code, a security interest that attaches within
the relevant period set forth in Section 547(b)(4) of the Bankruptcy
Code may be avoidable under certain circumstances.
Based upon and subject to the foregoing, we are of the opinion
that:
1. The Indenture Trustee has, under the terms of the
Connecticut UCC and, in the case of book-entry Treasury securities,
under the CFR, a perfected security interest in the Liquid Collateral
that constitutes "securities" (as such term is defined in Section
8-102 of the Connecticut UCC), or "instruments" (as defined in
Section 9-105(1)(i) of the Connecticut UCC), and in the identifiable
proceeds thereof to secure the payment of the Obligations.
2. The Indenture creates, under the terms of the Connecticut
UCC, a valid security interest in such of the Liquid Collateral that
constitutes "general intangibles" (as such term is defined in Section
9-106 of the Connecticut UCC) and in the identifiable proceeds
thereof to secure the payment of the Obligations. Upon the filing of
a financing statement on form UCC-1 pursuant to the Connecticut UCC
with the Secretary of State of the State of Connecticut naming the
Owner Trustee as Debtor and the Indenture Trustee as Secured Party
and accurately describing the Liquid Collateral and the Collateral
Account, which filing has been duly effected, such security interest
will be perfected (to the extent that the perfection of a security
interest in the Liquid Collateral can be accomplished by the filing
in Connecticut of financing statements under the Connecticut UCC).
We point out that:
(a) The effectiveness of a financing statement will lapse (i)
on the expiration of a five-year period from their dates of filing,
or (if later) five years from the last date as to which such
financing statements were effective following the proper filing of
continuation statements with respect thereto, unless continuation
statements are filed within six months prior to the expiration of the
applicable five-year period, (ii) with respect to general intangibles
in which a security interest has been perfected by the filing of a
financing statement in the jurisdiction of the location of the
debtor, for a period of more than four months after the debtor has
changed its location from that jurisdiction to a new jurisdiction
unless such security is perfected in the new jurisdiction within the
earlier to occur of the end of such four month period or the date on
which such financing statement would have otherwise lapsed, and (iii)
with respect to "investment property," under and as defined in
Revised Article 8, in which a security interest has been perfected by
the filing of a financing statement in the jurisdiction of the
location of the debtor, from the time that the debtor changes its
location from that jurisdiction to a new jurisdiction unless such
security interest is perfected in the new jurisdiction on or before
the time of such change of location.
(b) If any debtor changes its name, identity or corporate
structure such that any financing statement becomes misleading, such
financing statement will be ineffective to perfect a security
interest in any collateral acquired by such debtor more than four
months after such change.
We assume no obligation to update this opinion as a result of
any change in any fact, circumstance or statute or other rule of law
occurring after the date hereof.
This opinion is delivered to you solely in connection with the
transactions referred to herein and for your sole use and no other
person or entity may rely on this opinion without our express written
consent.
Very truly yours,
Bingham, Dana & Gould LLP
SCHEDULE A
----------
Lessee
Federal Express Corporation
2007 Corporate Avenue
Memphis, Tennessee 38132
Owner Trustee
State Street Bank and Trust Company
of Connecticut, National Association
Two International Place
4th Floor
Boston, Massachusetts 02110
Indenture Trustee, Pass Through Trustee & Subordination Agent
First Security Bank, National Association
79 South Main Street
Salt Lake City, Utah 84111
Underwriters
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
First Chicago Capital Markets, Inc.
Corporate Securities
One First National Plaza
Chicago, Illinois 60670
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
J.P. Morgan & Co.
60 Wall Street
New York, New York 10260
Liquidity Provider
Kredietbank N.V., New York Branch
125 West 55th Street
New York, New York 10019
EXHIBIT A(3)(a)(ii)
[Letterhead of Bingham, Dana & Gould]
[Delivery Date]
To Each of the Parties Listed on Schedule A Hereto
Re: Federal Express Corporation Trust No. N584FE
Ladies and Gentlemen:
We have acted as counsel to State Street Bank and Trust Company
of Connecticut, National Association, a national banking association in its
individual capacity ("State Street") and its capacity as Owner Trustee (the
"Owner Trustee") under the Trust Agreement (Federal Express Corporation Trust
No. N584FE) dated as of May 1, 1997 between State Street and
___________________, as Owner Participant ("Owner Participant") (the "Trust
Agreement") in connection with the transactions contemplated by that certain
Participation Agreement (Federal Express Corporation Trust No. N584FE) dated
as of May 1, 1997 (the "Participation Agreement") by and among Federal Express
Corporation (the "Lessee"); the Owner Participant; and First Security Bank,
National Association, in its individual capacity and as Indenture Trustee (the
"Indenture Trustee"), Pass Through Trustee and Subordination Agent. Except as
otherwise defined herein, all capitalized terms used herein shall have the
respective meanings set forth in, or by reference to, the Participation
Agreement.
The Owner Trustee has requested that we deliver this Opinion to
you in accordance with Section 4.02 of the Participation Agreement.
Our representation of State Street has been as special counsel
for the purposes stated above. As to all matters of fact (including factual
conclusions and characterizations and descriptions of purpose, intention or
other state of mind), we have relied entirely upon (i) the representations of
the parties set forth in the Operative Agreements and (ii) certificates
delivered to us by the management of State Street and have assumed, without
independent inquiry, the accuracy of those representations and certificates.
We have examined each of the Operative Agreements to which
State Street or the Owner Trustee, as applicable is a party (the "Owner Trustee
Documents"), the Certificate of the Comptroller of the Currency relating to
State Street and originals, or copies certified or otherwise identified to our
satisfaction, of such other corporate records, documents, certificates and
other instruments as we have deemed necessary or advisable for the purposes of
rendering this opinion.
We have assumed the genuineness of all signatures (other than
those on behalf of State Street and the Owner Trustee), the conformity to the
originals of all documents reviewed by us as copies, the authenticity and
completeness of all original documents reviewed by us in original or copy form
and the legal competence of each individual executing any document (other than
on behalf of State Street and the Owner Trustee).
When an opinion set forth below is given to the best of our
knowledge, or to our knowledge, or with reference to matters of which we are
aware or which are known to us, or with another similar qualification, the
relevant knowledge or awareness is limited to the actual knowledge or
awareness of the individual lawyer in the firm that signed this opinion, the
individual lawyers in the firm who have participated directly in the specific
transactions to which this opinion relates or in the preparation of this
opinion and the partner of the firm responsible for State Street corporate
trust matters, and without any special or additional investigation undertaken
for the purposes of this opinion.
Each opinion set forth below relating to the enforceability of
any agreement or instrument against State Street, the Owner Trustee or the
Owner Participant, as applicable, is subject to the following general
qualifications:
(i) as to any agreement to which State Street or the
Owner Trustee, as applicable, is a party, we assume that such
agreement is the legal, valid and binding obligation or each other
party thereto;
(ii) except as otherwise set forth in our opinions 13 and
14 below, the enforceability of any obligation of State Street, the
Owner Trustee and the Owner Participant, may be limited by bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium,
marshaling, or other similar laws and rules of law affecting the
enforcement generally of creditors' rights and remedies (including
such as may deny giving effect to waivers of debtors' or guarantors'
rights);
(iii) no opinion is given herein as to the enforceability
of any particular provision of any of the Owner Trustee Documents
relating to remedies after default or as to the availability of any
specific or equitable relief of any kind. However, we are of the
opinion that, subject to the other limitations and qualifications
contained in this opinion, the remedies provided in the Owner Trustee
Documents, taken as a whole, are adequate for the realization of the
principal benefits or security of said agreements (except for the
economic consequences of procedural or other delay); and
(iv) the enforcement of any rights and the availability
of any specific or equitable relief of any kind may in all cases be
subject to an implied duty of good faith and to general principles of
equity (regardless of whether such enforceability or relief is
considered in a proceeding at law or in equity) and, as to any of
your rights to collateral security, will be subject to a duty to act
in a commercially reasonable manner.
Subject to the limitations set forth herein, we have made such
examination of law as we have deemed necessary for the purposes of this
opinion. The opinions expressed herein are limited solely to the internal
substantive laws of the State of Connecticut and the Federal laws of the United
States of America. No opinion is expressed herein as to the application or
effect of federal securities laws or as to the securities or so-called "Blue
Sky" laws of any state or other jurisdiction. In addition, no opinion is
expressed as to matters governed by the Transportation Code, or by any other
law, statute, rule or regulation of the United States relating to the
acquisition, ownership, registration, use, operation, maintenance, repair,
replacement or sale of or the nature of the Aircraft, Airframe or the Engines.
We have made no examination of, and no opinion is given herein
as to the Owner Trustee's or Owner Participant's title to or other ownership
rights in, or the existence of any liens, charges or encumbrances on, or
adverse claims against, any of the Indenture Estate. We express no opinion as
to the creation, attachment, perfection or priority of any mortgage, security
interest or lien in any of the Indenture Estate.
With your permission and without investigation, with respect to
paragraphs 2, 3 and 4 below in connection with our opinion relating to the
legality, validity, binding effect of the documents there referred to, to the
extent that the laws of the State of Connecticut do not govern such documents,
we have assumed that the laws of the jurisdictions whose laws govern such
documents are not materially different from the internal substantive laws of
the State of Connecticut.
In rendering our opinion in paragraphs 12 and 13 below, we have
assumed that the Owner Participant acquired its interest in the Trust Estate
for fair consideration and in good faith without any intention to hinder,
defraud or defraud or delay the Owner Participant's creditors.
This opinion is rendered solely for the benefit of those
institutions listed on Schedule A hereto and their respective successors and
assigns in connection with the transactions contemplated by the Operative
Agreements and may not be used or relied upon by any other person or for any
other purpose.
Based upon the foregoing, we are of the opinion that:
1. State Street is a national banking association duly
organized, validly existing and in good standing with the Comptroller
of the Currency under the laws of the United States of America, is a
"citizen of the United States" within the meaning of Section
40102(a)(15) of Title 49 of the United States Code, as amended and
has or had, on the date of execution thereof, full corporate power,
authority and legal right to execute, deliver and perform its
obligations under the Trust Agreement and, as Owner Trustee under the
Trust Agreement, to execute, deliver and perform its obligations
under the other Owner Trustee Agreements and to issue, execute,
deliver and perform its obligations under the Certificate.
2. State Street has or had, on the date of execution thereof,
duly authorized, executed, and delivered the Participation Agreement
and the Trust Agreement and the Participation Agreement and the Trust
Agreement constitute the legal, valid and binding obligation of State
Street, enforceable against it in its individual capacity in
accordance with the terms thereof.
3. The Owner Trustee is duly authorized under the Trust
Agreement to execute, deliver and perform each of the Owner Trustee
Agreements and each such Owner Trustee Agreement constitutes a legal,
valid and binding obligation of the Owner Trustee enforceable against
the Owner Trustee in accordance with its terms. The Certificate has
been duly issued, executed and delivered by the Owner Trustee,
pursuant to authorization contained in the Trust Agreement, and
assuming due authentication thereof by the Indenture Trustee,
constitutes the legal, valid and binding obligation of the Owner
Trustee enforceable against the Owner Trustee in accordance with its
terms and the terms of the Indenture; and the Certificate is entitled
to the benefits and security afforded by the Indenture in accordance
with its terms and the terms of the Indenture.
4. Assuming the due authorization, execution and delivery of
the Trust Agreement by the Owner Participant and that the Owner
Participant has the requisite corporate power and authority to enter
into and perform its obligations under the Trust Agreement, said
Trust Agreement constitutes the legal, valid and binding obligation
of the Owner Participant, enforceable against the owner Participant
in accordance with the terms thereof.
5. The Trust Agreement duly creates a legal and valid trust
under Connecticut law; the trust created by the Trust Agreement
exists for the benefit of the Owner Participant as provided therein
and creates for the benefit of the Owner Participant the interest in
the Trust Estate which the Trust Agreement by its terms purports to
create, subject however to the provisions of, and the Liens created
by, the Indenture and the Lease.
6. To the extent that the Uniform Commercial Code of the State
of Connecticut (the "UCC") is applicable, except for the Indenture
Trustee's taking possession of all monies and securities (including
instruments) constituting part of the Trust Indenture Estate, no
action, including the filing or recording of any document, is
necessary (i) to create under the UCC the security interest in the
Trust Indenture Estate (including the grant and assignment unto the
Indenture Trustee of the security interest in all estate, right,
title and interest of the Owner Trustee in, to and under the Lease
and the Participation Agreement) which the Indenture by its terms
purports to create in favor of the Indenture Trustee, and (ii) to
perfect in the State of Connecticut such security interest, except
for the filing of a UCC financing statement complying with the formal
requisites of Section 9-402 of the UCC in the office of the Division
of Corporations and Commercial Code of the State of Connecticut with
respect to the security interest, which filing has been duly
effected, and the filing of continuation statements with respect
thereto required to be filed at periodic intervals under the UCC.
7. Neither the execution, delivery or performance by the Owner
Trustee, in its individual capacity or as Owner Trustee, as the case
may be, of the Certificates or the Owner Trustee Documents, the
consummation by the Owner Trustee, in its individual capacity or as
Owner Trustee, as the case may be, of any of the transactions
contemplated thereby nor the compliance by the Owner Trustee, in its
individual capacity or as Owner Trustee, as the case may be, with any
of the terms and provisions thereof (i) requires any approval of its
stockholders, any consent or approval of or the giving of notice to
any trustees or holders of any indebtedness or obligations of it
known to us, or (ii) violates its charter documents or by-laws, or
contravenes or will contravene any provision of, or constitutes a
default under, or results in any breach of, or results in the
creation of any Lien (other than as permitted under the Operative
Agreements) upon property under, any indenture, mortgage, chattel
mortgage, deed of trust, conditional sales contract, bank loan or
credit agreement, license or other agreement or instrument, in each
case, known to us to which it is a party or by which it is bound or
contravenes any Connecticut or United States applicable law governing
the banking or trust powers of the Owner Trustee, or any judgment or
order in each case, known to us applicable to or binding on it.
8. To our knowledge, there are no proceedings or actions
pending or threatened against or affecting the Owner Trustee, in its
individual capacity or as Owner Trustee, before any governmental
authority which, individually or in the aggregate, if adversely
determined, would materially and adversely affect the ability of the
Owner Trustee, in its individual capacity or as Owner Trustee, as the
case may be, to enter into or to perform its obligations under the
Owner Trustee Documents or the Certificate.
9. No consent, approval, order or authorization of, giving of
notice to, or registration with, or taking of any other action in
respect of, any Connecticut or United States governmental authority
regulating the banking or trust powers of the Owner Trustee, in its
individual capacity, is required for the execution and delivery of,
or the carrying out by, the Owner Trustee in its individual capacity
or as Owner Trustee, as the case may be, of any of the transactions
contemplated by the Owner Trustee Documents, other than any such
consent, approval, order, authorization, registration, notice or
action as has been duly obtained, given or taken.
10. There are no fees, taxes or other charges payable by the
Owner Trustee, the Trust Estate or the trust created by the Trust
Agreement imposed by the State of Connecticut or any political
subdivision or taxing authority thereof in connection with the
execution, delivery and performance by State Street, individually or
as Owner Trustee, of the Owner Trust Documents (other than franchise
or other taxes based on or measured by any fees or compensation
received by State Street, acting as the Owner Trustee, for services
rendered in connection with the transactions contemplated by the
Operative Agreements) and, assuming that the trust created by the
Trust Agreement will not be taxable as a corporation, but, rather,
will be characterized as a grantor trust under subpart E, Part I of
Subchapter J of the Internal Revenue Code of 1986, as amended, or
will be otherwise ignored for Federal tax purposes, (i) such trust
will not be subject to any fees, taxes or other charges imposed by
the State of Connecticut or any political subdivision thereof based
on income, receipts, value or otherwise, (ii) Holders that are not
residents of or otherwise subject to tax in Connecticut will not be
subject to any taxes imposed by the State of Connecticut or any
political subdivision thereof as a result of purchasing, holding
(including receiving payments with respect to) or selling a
Certificate and (iii) assuming the Owner Participant is not a
Connecticut resident or otherwise subject to tax in Connecticut and
further assuming that the assets of the trust created by the Trust
Agreement are not deemed to be located in Connecticut, the Owner
Participant will not be subject to any taxes imposed by the State of
Connecticut or any political subdivision thereof solely as a result
of being the beneficial owner of the trust created by the Trust
Agreement.
11. The Owner Trustee has received such title to the Aircraft
as has been conveyed to it subject to the rights of the Owner Trustee
and the Lessee under the Lease and the security interest created
pursuant to the Indenture and the Lease; and to our knowledge, there
exist no liens or encumbrances affecting the right, title and
interest of the Owner Trustee in and to the Trust Estate resulting
from claims against State Street not related to the ownership of the
Trust Estate or any other transaction contemplated by the Operative
Agreements.
12. All the properties which are part of the Indenture Estate
(including all right, title and interest of the Owner Trustee pledged
and mortgaged by it pursuant to the Indenture) have been pledged and
mortgaged with the Indenture Trustee as part of the Indenture Estate,
and the beneficial interest of the Owner Participant under the Trust
Agreement in and to such properties is subject, to the extent
provided in the Indenture, to the liens of the Indenture in favor of
the holders from time to time of the Certificate.
13. Neither a Connecticut court nor a Federal court applying
federal law or Connecticut law, if properly presented with the issue
and after having properly considered such issue, would permit the
Owner Participant to terminate the Trust Agreement, except as
otherwise provided therein, until the Lien of the Indenture on the
Indenture Estate has been released and until payment in full of the
principal of, and premium, if any, and interest on, the Certificates
and all other sums due the holders of the Certificates has been made.
14. Under the laws of the State of Connecticut, as long as the
Trust Agreement has not been terminated in accordance with its terms,
creditors of any person that is an Owner Participant, holders of a
lien against the assets of any such person and representatives of
creditors of any such person, such as trustees, receivers or
liquidators (whether or not any insolvency proceeding has been
commenced) (collectively the "Creditors") may acquire legal, valid
and enforceable claims and liens, as to the Trust Estate, only
against the beneficial interest of such person in the Trust Estate,
and do not have, and may not through the enforcement of such
Creditors' rights acquire, any other legal, valid, and enforceable
claim or lien against the Trust Estate.
Very truly yours,
Bingham, Dana & Gould LLP
SCHEDULE A
----------
Lessee
Federal Express Corporation
2007 Corporate Avenue
Memphis, Tennessee 38132
Owner Trustee
State Street Bank and Trust Company
of Connecticut, National Association
Two International Place
4th Floor
Boston, Massachusetts 02110
Indenture Trustee, Pass Through Trustee & Subordination Agent
First Security Bank, National Association
79 South Main Street
Salt Lake City, Utah 84111
Underwriters
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
First Chicago Capital Markets, Inc.
Corporate Securities
One First National Plaza
Chicago, Illinois 60670
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
J.P. Morgan & Co.
60 Wall Street
New York, New York 10260
Liquidity Provider
Kredietbank N.V., New York Branch
125 West 55th Street
New York, New York 10019
Owner Participant
EXHIBIT A(4)
[Letterhead of Ray, Quinney & Nebeker]
[Certificate Closing Date]
To the Persons Listed in Schedule A Attached Hereto
Re: Federal Express Corporation Trust No. N584FE
Ladies and Gentlemen:
We have acted as special counsel to First Security Bank,
National Association, a national banking association ("First Security"), in
connection with the Pass Through Trust Agreement dated as of May 1, 1997 (the
"Pass Through Trust Agreement"), as supplemented by the Series Supplements
dated the date hereof between Federal Express Corporation and the First
Security, not in its individual capacity, except as otherwise stated, but
solely as Pass Through Trustee, designated as Series Supplement 1997-1-A,
1997-1-B and 1997-1-C, respectively (the "Series Supplements") and the
Participation Agreement (Federal Express Corporation Trust No. N584FE), dated
as of May 1, 1997 (the "Participation Agreement"), among Federal Express
Corporation, as Lessee and initial Owner Participant, State Street Bank and
Trust Company of Connecticut, National Association, not in its individual
capacity, except as otherwise stated, but solely as Owner Trustee, and First
Security, not in its individual capacity, except as otherwise stated, but
solely as Indenture Trustee, Pass Through Trustee and Subordination Agent.
Pursuant to the Participation Agreement, one McDonnell Douglas MD-11F aircraft
bearing U.S. Registration No. N1752K (the "Aircraft") is being financed. This
opinion is furnished pursuant to Section 4.01(k)(iv) of the Participation
Agreement. Capitalized terms used herein and not otherwise defined are used
as defined in the Participation Agreement, except that references herein to
any instrument shall mean such instrument as in effect on the date hereof.
We have examined executed counterparts or copies otherwise
identified to our satisfaction of the following documents:
(a) The Pass Through Trust Agreement;
(b) The Series Supplements;
(c) The Pass Through Certificates;
(d) The Participation Agreement;
(e) The Intercreditor Agreement; and
(f) Each Liquidity Facility.
(each of the documents identified in paragraphs (a) through (e) are being
collectively referred to as the "Pass Through Trustee Documents" and each of
the documents identified in paragraphs (d) through (f) are being collectively
referred to as the "Subordination Agent Documents").
We have also examined originals or copies of such other
documents, such corporate records, certificates and other statements of
governmental officials and corporate officers and other representatives of the
corporations or entities referred to herein and such other instruments as we
have deemed necessary or appropriate for the purposes of this opinion.
Moreover, as to certain facts material to the opinions expressed herein, we
have relied upon representations and warranties contained in the Pass Through
Trustee Documents or the Subordination Agent Documents, as the case may be.
Based upon the foregoing and upon an examination of such
questions of law as we have considered necessary or appropriate, and subject
to the assumptions, exceptions and qualifications set forth below, we advise
you that, in our opinion:
With respect to the opinions set forth in paragraph 8 above,
with your permission we have relied upon, and this opinion is limited by, the
assumptions set forth in the discussion entitled "Certain Utah Taxes" in the
Prospectus Supplement to the Prospectus forming part of Registration Number
No. 333-07691 (the "Registration Statement") for the registration of the Pass
Through Certificates with the Securities and Exchange Commission. We express
no opinion as to the correctness of the foregoing assumptions and we have
conducted no independent investigation in this regard.
1. First Security is a national banking association duly
organized and validly existing under the laws of the United States of
America holding a valid certificate to do business as a national
banking association, with banking and trust powers.
2. Each of First Security, the Pass Through Trustee and the
Subordination Agent, as the case may be, has or had, on the date of
execution thereof, full corporate power, authority and legal right to
execute, deliver and perform each of the Pass Through Trustee
Documents and the Subordination Agent Documents, as the case may be,
and to authenticate the Pass Through Certificates delivered on the
Certificate Closing Date.
3. Each of First Security, the Pass Through Trustee and the
Subordination Agent has duly authorized, executed and delivered each
Pass Through Trustee Document or Subordination Agent Document, as the
case may be; each such document constitutes a legal, valid and
binding obligation of the Pass Through Trustee or the Subordination
Agent, as the case may be (and, to the extent set forth in the
respective Pass Through Trustee Document or Subordination Agent
Document, of First Security) enforceable against the Pass Through
Trustee or the Subordination Agent, as the case may be (and, to the
extent set forth in the respective Pass Through Trustee Document or
Subordination Agent Document, against First Security) in accordance
with its terms.
4. The Pass Through Certificates issued and dated the
Certificate Closing Date have been duly authorized and validly
executed, issued, delivered and authenticated by the Pass Through
Trustee pursuant to the Pass Through Trust Agreement and the Series
Supplements; and the Pass Through Certificates acquired by the
Underwriters under the Underwriting Agreement are enforceable against
the Pass Through Trustee and are entitled to the benefits of the
related Pass Through Trust Agreement and the related Series
Supplements.
5. No order, license, consent, permit, authorization or
approval of or exemption by, and no notice to or filing with, or the
taking of any other action in respect of, any Utah or Federal
governmental authority governing the banking or trust powers of First
Security, the Pass Through Trustee or the Subordination Agent, and no
filing, recording, publication or registration in any public office
is required under Utah or Federal law pertaining to its banking or
trust powers for the due execution, delivery or performance by First
Security, individually or as Pass Through Trustee or Subordination
Agent, as the case may be, of the Pass Through Trustee Documents
(other than the Pass Through Trust Agreement) or the Subordination
Agent Documents, as the case may be, and of the certificate of
authentication, as Pass Through Trustee, on the Pass Through
Certificates, or for the legality, validity, binding effect or
enforceability thereof against First Security, the Pass Through
Trustee or the Subordination Agent, as the case may be.
6. The execution, delivery and performance by the Pass Through
Trustee or First Security, as the case may be, of each of the Pass
Through Documents and the Subordination Agent or First Security, as
the case may be, of each of the Subordination Agent Documents, and the
issuance, execution, delivery and performance of the Pass Through
Certificates by the Pass Through Trustee are not or were not, on the
date of execution thereof, in violation of the charter or by-laws of
First Security or of any law, governmental rule, or regulation of the
State of Utah or the United States of America governing the banking
or trust powers of First Security or, to our knowledge, of any
indenture, mortgage, bank credit agreement, note or bond purchase
agreement, long-term lease, license or other agreement or instrument
to which it is a party or by which it is bound or, to our knowledge,
of any judgment or order of the State of Utah or the United States of
America relating to the banking or trust powers of First Security.
7. There are no actions, suits, investigations or proceedings
pending or, to our knowledge, threatened against or affecting First
Security, the Pass Through Trustee or the Subordination Agent or any
of its properties in any court or before any administrative agency or
arbitrator, which, if adversely determined, would materially adversely
affect the ability of First Security, the Pass Through Trustee or the
Subordination Agent, as the case may be, to perform its obligations
under any of the Pass Through Trustee Documents or the Subordination
Agent Documents, as the case may be, and there are no pending or, to
our knowledge, threatened actions or proceedings before any court,
administrative agency or tribunal involving First Security, the Pass
Through Trustee or the Subordination Agent in connection with the
transactions contemplated by any of the Pass Through Trustee
Documents or the Subordination Agent Documents, as the case may be.
8. Neither the trusts created by the Pass Through Trust
Agreement and the Series Supplements nor the Pass Through Trustee, in
its individual or trust capacity, as the case may be, nor their
respective Affiliates, successors or assigns, will be subject to any
tax (including, without limitation, net or gross income, tangible or
intangible property, net worth, capital, franchise or doing business
tax), fee or other governmental charge under the laws of the State of
Utah or any political subdivision thereof (other than taxes imposed
on the fees received by State Street Bank and Trust Company for
acting as Pass Through Trustee under the Series Supplements).
Certificate holders who are not residents of or otherwise subject to
tax in Utah will not be subject to any tax (including, without
limitation, net or gross income, tangible or intangible property, net
worth, capital, franchise or doing business tax), fee or other
governmental charge under the laws of the State of Utah or any
political subdivision thereof as a result of purchasing, owning
(including receiving payments with respect to) or selling a Pass
Through Certificate. There are no applicable taxes under the laws of
the State of Utah or any political subdivision thereof upon or with
respect to (a) the construction, mortgaging, financing, refinancing,
purchase, acquisition, acceptance, rejection, delivery, nondelivery,
transport, location, ownership, insurance, control, assembly,
possession, repossession, operation, use, condition, maintenance,
repair, sale, return, abandonment, replacement, preparation,
installation, storage, redelivery, manufacture, leasing, subleasing,
modification, rebuilding, importation, transfer of title, transfer
of registration, exportation or other application or disposition of
the Aircraft or any interest in any thereof, (b) payments of Rent or
other receipts, income or earnings arising therefrom or received with
respect to the Aircraft or any interest in any thereof or payable
pursuant to the Lease, (c) any amount paid or payable pursuant to any
Operative Agreements, (d) the Aircraft or any interest therein or the
applicability of the Lease to the Aircraft or any interest in any
thereof, (e) any or all of the Operative Agreements, any or all of
the Pass Through Certificates or any interest in any or all thereof
or the offering, registration, reregistration, issuance, acquisition,
modification, assumption, reissuance, refinancing or refunding of any
or all thereof, and any other documents contemplated thereby and
amendments or supplements hereto and thereto, (f) the payment of the
principal of, or interest or premium on, or other amounts payable
with respect to, any or all of the Pass Through Certificates, whether
as originally issued or pursuant to any refinancing, refunding,
assumption, modification or reissuance, or any other obligation
evidencing any loan in replacement of the loan evidenced by any or
all of the Pass Through Certificates, or (g) otherwise with respect
to or in connection with the transactions contemplated by the Pass
Through Trust Agreement, the Series Supplements, the Pass Through
Certificates and the Operative Agreements, which would not have been
imposed if the Pass Through Trustee had not had its principal place
of business in, had not performed (either in its individual capacity
or as Pass Through Trustee) any or all of its administrative duties
under the Pass Through Trust Agreement, the Series Supplements, the
Pass Through Certificates and the Operative Agreements in, and had not
engaged in any activities unrelated to the transactions contemplated
by the Pass Through Trust Agreement, the Series Supplements, the Pass
Through Certificates and the Operative Agreements in, the State of
Utah.
9. Each of the Certificates to be delivered to and registered
in the name of the Subordination Agent on the date hereof pursuant to
the Participation Agreement and the Intercreditor Agreement will be
held by the Subordination Agent in trust for the Pass Through Trustee
under the applicable Pass Through Trust Agreement.
Very truly yours,
Ray, Quinney & Nebeker
SCHEDULE A
----------
Lessee
Federal Express Corporation
2007 Corporate Avenue
Memphis, Tennessee 38132
Owner Trustee
State Street Bank and Trust Company
of Connecticut, National Association
Two International Place
4th Floor
Boston, Massachusetts 02110
Indenture Trustee, Pass Through Trustee & Subordination Agent
First Security Bank, National Association
79 South Main Street
Salt Lake City, Utah 84111
Underwriters
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
First Chicago Capital Markets, Inc.
Corporate Securities
One First National Plaza
Chicago, Illinois 60670
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
J.P. Morgan & Co.
60 Wall Street
New York, New York 10260
Liquidity Provider
Kredietbank N.V., New York Branch
125 West 55th Street
New York, New York 10019
EXHIBIT A(5)(a)
[Letterhead of Kredietbank N.V.]
[Certificate Closing Date]
To Each of the Parties named on Schedule A Hereto
Re: Federal Express Corporation 1997-1
Enhanced Pass Through Certificates
Ladies and Gentlemen:
I am the manager of the Legal Department of Kredietbank N.V.
("Kredietbank") and have advised Kredietbank and its New York Branch (the
"Branch") in connection with (i) the Irrevocable Revolving Credit Agreement
Class A Certificates, dated as of May 1, 1997 (the "Class A Liquidity
Agreement"), between the Branch and First Security Bank, National Association,
a national banking association, as Subordination Agent under the Intercreditor
Agreement, defined below, and as agent and trustee for the Federal Express
Corporation Pass Through Trust 1997-1-A, (ii) the Irrevocable Revolving Credit
Agreement Class B Certificates, dated as of May 1, 1997 (the "Class B Liquidity
Agreement"), between the Branch and First Security Bank, National Association,
a national banking association, as Subordination Agent under the Intercreditor
Agreement, defined below, and as agent and trustee for the Federal Express
Corporation Pass Through Trust 1997-1-B (the "Intercreditor Agreement" and,
together with the Liquidity Agreements, the "Liquidity Documents"), and (iii)
the Intercreditor Agreement, dated as of May 1, 1997 (the "Intercreditor
Agreement"), among the Branch, First Security Bank, National Association, as
Pass Through Trustee and as Subordination Agent (the Liquidity Agreements and
the Intercreditor Agreement are hereinafter collectively the "Liquidity
Documents").
Capitalized terms herein which are undefined have the meanings
assigned to them in the Liquidity Documents.
I am rendering this opinion in my capacity as manager of the
Legal Department and without being personally liable to any extent for the
opinions expressed herein.
In connection with the opinions hereinafter given, I have
examined a copy of each of the Liquidity Documents and such other certificates,
documents, agreements and instruments as I have deemed necessary as a basis
for the opinions expressed below.
In such examination, I have assumed the genuineness of all
signatures, the authenticity of all agreements, certificates, instruments and
documents submitted to me as originals, and the conformity to the originals of
all agreements, certificates, instruments and documents submitted to me as
copies. As to questions of fact material to the opinions expressed below, I
have, when relevant facts were not independently established by me, examined
and relied upon representations of officers of Kredietbank.
Based upon the foregoing examination and assumptions, and
subject to the qualifications set forth below, I am of the opinion that:
1. Kredietbank is duly organized and validly existing as a
Belgian public law banking institution under the law of Belgium and
has full power and authority (corporate and otherwise) to execute,
deliver and perform the Liquidity Documents.
2. [Tod Angus] or [Robert Snauffer], acting together with [Jean
Glasgow], if acting for and on behalf of the Branch, are duly
authorized by Kredietbank to execute and deliver the Liquidity
Documents for and on behalf of the Branch. Assuming each of the
Liquidity Documents has been duly executed and delivered for and on
behalf of the Branch by such persons, no further authorization by or
any corporate action of Kredietbank is required in connection with
the execution, delivery and performance thereof.
3. The governing-law clause, subjecting the Liquidity Documents
to New York law, is valid under Belgian law.
(i) Under Belgian law, New York law will be applied to an
agreement, such as the Liquidity Documents, which under Belgian
law has been validly subjected to New York laws.
(ii) (a) None of the terms of the Liquidity Documents is
irreconcilable with important principles of Belgian law, and (b)
there are no mandatory provisions of Belgian law which must be
applied to the transactions covered by the Liquidity Documents.
(iii) Each of the Liquidity Documents constitutes the legal,
valid and binding obligation of Kredietbank, enforceable against
Kredietbank in accordance with its terms, the rules of civil
procedures of Belgium and the applicable provisions of the
chosen law of New York.
4. No authorization, consent, approval or other action by, and
no notice to or filing with, any governmental, administrative or other
authority or court of Belgium is required for the execution or
delivery of the Liquidity Documents by Kredietbank through the Branch
or for the performance by Kredietbank or by the Branch of the
Liquidity Documents.
5. The execution, delivery and performance of the Liquidity
Documents by Kredietbank or the Branch will not result in any
violation by Kredietbank or by the Branch of any law of Belgium.
6. The contractual obligations incurred by virtue of the
execution and delivery of the Liquidity Documents for and on behalf
of the Branch are the obligations of Kredietbank, and Kredietbank has
no defenses against the performance of such obligations which are
based on the fact that Kredietbank had acted through the Branch in
executing and delivering the Liquidity Documents.
7. If a final and conclusive judgment of the Supreme Court of
the State of New York, New York County, or of the Untied States
District Court for the Southern District of New York for a definite
sum for the recovery of amounts due and unpaid under the Liquidity
Documents were to be rendered against Kredietbank, a reexamination or
relitigation on the merits of the subject matter thereof in
accordance with Article 570 of the Belgian Judicial Code would be
necessary in order to obtain recognition and/or enforcement of such
judgment in Belgium.
8. The obligations of Kredietbank under the Liquidity Documents
rank at least equal in priority of payment and in all other respects
with its obligations to pay any other unsecured and unsubordinated
obligations of Kredietbank for borrowed money, including deposit
liabilities, that are not expressly preferred by law.
The foregoing opinions are subject to the following
qualifications:
(i) The opinion in paragraph (3) with respect to
enforceability is subject to the effect of any bankruptcy,
insolvency, reorganization, moratorium, liquidation or similar
laws affecting creditors' rights generally, applicable to
Kredietbank and to any law or general principle of law from
time to time in effect in Belgium that could be considered by
the Belgian Courts as a provision of public policy.
(ii) In giving the opinions in paragraphs (3)(iii), (6) and
(8), I have assumed, with your consent, that each of the
Liquidity Documents is legal, valid and binding under New York
law, all as set forth more fully in the opinion dated of even
date herewith of Milbank, Tweed, Hadley & McCloy issued in
connection with the Liquidity Documents.
(iii) No opinion is expressed with respect to the law of any
jurisdiction other than the law of Belgium.
This opinion is being furnished to you solely for your benefit
in connection with the transactions described above and may not be used,
circulated, quoted or otherwise referred to for any other purpose without my
express written consent.
Very truly yours,
SCHEDULE A
----------
Lessee
Federal Express Corporation
2007 Corporate Avenue
Memphis, Tennessee 38132
Indenture Trustee, Pass Through Trustee & Subordination Agent
First Security Bank, National Association
79 South Main Street
Salt Lake City, Utah 84111
Underwriters
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
First Chicago Capital Markets, Inc.
Corporate Securities
One First National Plaza
Chicago, Illinois 60670
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
J.P. Morgan & Co.
60 Wall Street
New York, New York 10260
EXHIBIT A(5)(b)
[Letterhead of Milbank, Tweed, Hadley & McCloy]
[Certificate Closing Date]
To Each of the Parties named on Schedule A Hereto
Re: Federal Express Corporation 1997-1
Enhanced Pass Through Certificates
Ladies and Gentlemen:
We have acted as special New York counsel to Kredietbank N.V.,
New York Branch (herein called the "Liquidity Provider") in connection with the
transactions contemplated by (i) the Irrevocable Revolving Credit Agreement
Class A Certificates, dated as of May 1, 1997 (the "Class A Liquidity
Agreement"), between the Liquidity Provider and First Security Bank, National
Association, as Subordination Agent under the Intercreditor Agreement, as
defined below, as agent and trustee for the Federal Express Corporation
1997-1-A Pass Through Trust, (ii) the Irrevocable Revolving Credit Agreement
Class B Certificates, dated as of May 1, 1997 (the "Class B Liquidity
Agreement" and, together with the Class A Liquidity Agreement, the "Liquidity
Agreements"), between the Liquidity Provider and First Security Bank, National
Association, as Subordination Agent under the Intercreditor Agreement, as
defined below, as agent and trustee for the Federal Express Corporation
1997-1-B Pass Through Trust, and (iii) the Intercreditor Agreement, dated as
of May 1, 1997 (the "Intercreditor Agreement" and, together with the Liquidity
Agreements, the "Liquidity Documents"), among the Liquidity Provider and First
Security Bank, National Association, as Pass Through Trustee and as
Subordination Agent. Capitalized terms used herein but not otherwise defined
herein shall have the meanings provided in the Liquidity Documents.
In rendering the opinion expressed below, we have examined the
Liquidity Documents, the opinion dated the date hereof of Wilfred Kupers, Esq.,
manager of the Legal Department of Kredietbank N.V., and such other documents
as we have deemed necessary.
In our examination, we have assumed the authenticity of all
documents submitted to us as originals and the conformity with authentic
original documents of all documents submitted to us as copies. When relevant
facts were not independently established, we have relied upon representations
made in or pursuant to the Liquidity Documents.
In rendering the opinion expressed below, we have assumed, with
respect to each Liquidity Document, that:
(i) it has been duly authorized by, has been duly executed and
delivered by, and (except to the extent set forth in the opinion
below as to the Liquidity Provider) constitutes legal, valid,
binding and enforceable obligations of all of the parties
thereto;
(ii) all signatories thereto have been duly authorized; and
(iii) all of the parties thereto are duly organized and validly
existing and have the power and authority (corporate,
partnership, trust or other) to execute, deliver and perform
thereunder.
Based upon and subject to the foregoing and subject also to the
comments and qualifications set forth below, and having considered such
questions of law as we have deemed necessary as a basis for the opinion
expressed below, we are of the opinion that each Liquidity Document
constitutes the legal, valid and binding obligation of the Liquidity Provider,
enforceable against the Liquidity Provider in accordance with its terms, except
as may be limited by bankruptcy, insolvency, reorganization, moratorium,
fraudulent conveyance or transfer or other similar laws relating to or
affecting the rights of creditors generally and except as the enforceability
of such Liquidity Document is subject to the application of general principles
of equity (regardless of whether considered in a proceeding in equity or at
law), including, without limitation, (a) the possible unavailability of
specific performance, injunctive relief or any other equitable remedy and (b)
concepts of materiality, reasonableness, good faith and fair dealing.
The foregoing opinion is subject to the following comments and
qualifications:
(A) The enforceability of provisions in the Liquidity
Documents to the effect that terms may not be waived or modified
except in writing may be limited under certain circumstances.
(B) We express no opinion as to (i) the effect of the laws of
any jurisdiction in which the Liquidity Provider is located (other
than New York) that limit the interest, fees or other charges the
Liquidity Provider may impose for the loan or use of money or other
credit, (ii) Section 7.11(a)(i) of each Liquidity Agreement and
Section 10.11(a)(i) of the Intercreditor Agreement, insofar as such
Sections relate to the subject matter jurisdiction of a Federal court
sitting in New York, New York to adjudicate any controversy related
to the Liquidity Documents, (iii) the waiver of inconvenient forum
set forth in Section 7.11(a)(ii) of each Liquidity Agreement and
Section 10.11(a)(ii) of the Intercreditor Agreement with respect to
proceedings in a Federal court sitting in New York, New York and a
State court of the State of New York and (iv) the waiver of immunity
set forth in Section 10.11(c) of the Intercreditor Agreement with
respect to proceedings in a Federal court sitting in New York, New
York and a State court of the State of New York.
The foregoing opinion is limited to matters involving the
Federal laws of the United States of America and the law of the State of New
York, and we do not express any opinion as to the laws of any other
jurisdiction. In particular, we do not express any opinion as to the laws of
Belgium and, to the extent such laws may be relevant to the opinion expressed
herein, we have, with your permission, relied upon the aforementioned opinion
of Wilfred Kupers, Esq., manager of the Legal Department of Kredietbank N.V.,
without independently considering the matters covered thereby, and our opinion
is subject to all limitations, exceptions and qualifications contained therein
as if set forth herein in full.
At the request of the Liquidity Provider, this opinion letter is
provided to you by us in our capacity as special New York counsel to the
Liquidity Provider, and this opinion letter may not be relied upon by any
Person for any purpose other than in connection with the transactions
contemplated by the Liquidity Documents without, in each instance, our prior
written consent.
Very truly yours,
SCHEDULE A
----------
Lessee
Federal Express Corporation
2007 Corporate Avenue
Memphis, Tennessee 38132
Indenture Trustee, Pass Through Trustee & Subordination Agent
First Security Bank, National Association
79 South Main Street
Salt Lake City, Utah 84111
Underwriters
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
First Chicago Capital Markets, Inc.
Corporate Securities
One First National Plaza
Chicago, Illinois 60670
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
J.P. Morgan & Co.
60 Wall Street
New York, New York 10260
Liquidity Provider
Kredietbank N.V., New York Branch
125 West 55th Street
New York, New York 10019
EXHIBIT A(6)
[Letter of General Electric Company]
[Delivery Date]
To Each of the Parties named on Schedule A Hereto
Re: Federal Express Corporation Trust No. N584FE
Reference is made to (i) that certain Participation Agreement (Federal
Express Corporation Trust No. N584FE), dated as of May 1, 1997 (the
"Participation Agreement") by and among Federal Express Corporation, as Lessee
("Fed Ex"), ____________________, as Owner Participant, State Street Bank and
Trust Company of Connecticut, National Association ("SSB") (not in its
individual capacity, except as otherwise expressly set forth therein, but
solely as Owner Trustee), First Security Bank, National Association ("FSB")
(not in its individual capacity, except as otherwise expressly set forth
therein, but solely as Indenture Trustee, Pass Through Trustee and
Subordination Agent); (ii) that certain Lease Agreement (Federal Express
Corporation Trust No. N584FE), dated as of May 1, 1997 (the "Lease") between
SSB (not in its individual capacity, but solely as Owner Trustee), as Lessor
and Fed Ex, as Lessee; (iii) that certain Trust Indenture and Security
Agreement (Federal Express Corporation Trust No. N584FE), dated as of May 1,
1997 (the "Trust Indenture") between SSB (not in its individual capacity), as
Owner Trustee and FSB (not in its individual capacity), as Indenture Trustee;
and (iv) that certain Trust Agreement (Federal Express Corporation Trust No.
N584FE), dated as of May 1, 1997 (the "Trust Agreement") between SSB (not in
its individual capacity), as Owner Trustee and Federal Express Corporation, as
Trustor.
I am an attorney employed by General Electric Company, a New York
corporation (the "Engine Manufacturer") and as such have acted as counsel for
the Engine Manufacturer in connection with the execution and delivery by the
Engine Manufacturer of the Consent (the "Consent"), and the Engine Warranty
Assignment (Federal Express Corporation Trust No. N584FE) (the "Engine
Warranty Assignment"), each attached to the Participation Agreement as Exhibit
E and dated as of May 1, 1997. The Consent and the Engine Warranty Assignment
covers three GE CF6-80C2-D1F series engines bearing Engine Manufacturer's
serial numbers ___-___ and ___-___, respectively. In this connection, I have,
or an attorney under my supervision has, reviewed such documents as I have
deemed necessary for the purpose of this opinion, including, but without
limiting the generality of the foregoing, the General Terms Agreement No.
6-9034, dated as of July 3, 1991 between the Engine Manufacturer and Fed Ex
(the "General Terms Agreement"), the Engine Product Support Plan forming a
part thereof (the "Engine Product Support Plan"), the Participation Agreement,
the Purchase Agreement Assignment, the Lease, the Trust Indenture and the
Trust Agreement.
In making such examinations, I have relied upon the accuracy of
original, certified, conformed, photocopied or telecopied copies of such
records, agreements, certificates and other documents as I have deemed
necessary or appropriate to enable me to render the opinions expressed herein.
In all such examinations, I have assumed the genuineness of signatures on
original documents and the conformity to such original documents of all copies
submitted to me as certified, conformed, photocopied or telecopied copies, and
as to certificates and telegraphic and telephonic confirmations given by public
officials, I have assumed the same to have been properly given and to be
accurate. As to various questions of fact material to such opinions, I have
relied, when such relevant facts were not independently established by me,
solely upon the accuracy of the statements, representations and warranties
made in the Participation Agreement, the Purchase Agreement Assignment, the
Lease, the Trust Indenture and the Trust Agreement.
With your consent, and for the purposes of this opinion, I have
assumed (other than with respect to the Engine Manufacturer), the accuracy of
the following matters, but I have not made any independent investigation or
inquiry with respect thereto and I render no opinion on such matters:
(a) each of the Participation Agreement, the Lease, the Trust
Indenture, and the Trust Agreement have been duly and validly
authorized, executed and delivered by all parties thereto and
constitutes the legal, valid and binding obligations of each of such
parties in accordance with the respective terms thereof; and
(b) the respective parties to the Participation Agreement, the
Lease, the Trust Indenture, and the Trust Agreement have obtained, and
there are in full force and effect, any and all federal, state, local
or foreign governmental agencies and authorities in connection with
the transactions contemplated thereby, to the extent necessary for the
legality, validity and binding effect or enforceability of the
Consent and the Engine Warranty Assignment.
Based upon the foregoing, and subject to the specific assumptions,
qualifications and reliances herein set forth, and on the basis of my
consideration of such facts and law as I have deemed necessary for purposes of
this letter, it is my opinion that:
(1) The Engine Manufacturer has the full corporate power,
authority and the legal right to enter into and perform its
obligations under the General Terms Agreement, the Consent and the
Engine Warranty Assignment. The execution, delivery and performance
by the Engine Manufacturer of each of the General Terms Agreement, the
Consent and the Engine Warranty Assignment was duly authorized by all
necessary corporate action on the part of the Engine Manufacturer.
(2) Each of the General Terms Agreement, the Consent and
Engine Warranty Assignment has been duly authorized, executed and
delivered by and constitutes a legal, valid and binding obligation of
the Engine Manufacturer, enforceable against the Engine Manufacturer
in accordance with the respective terms thereof, except as the
enforceability thereof may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting the
rights of creditors generally and by general equity principles.
(3) The Engine Product Support Plan insofar as it relates to
the Engine Warranties (as such term is defined in the Engine Warranty
Assignment), constitutes a legal, valid and binding obligation of the
Engine Manufacturer, enforceable against the Engine Manufacturer in
accordance with the terms thereof, except as the enforceability
thereof may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the rights of
creditors generally and by general equity principles.
The foregoing opinions are limited to the laws of the State of
New York and the federal laws of the United States of America, but no opinion
is expressed as to matters governed by the Transportation Code, or by any other
law, statute, rule or regulation of the United States relating to the
acquisition, ownership, registration, use, operation, maintenance, repair,
replacement or sale of aircraft. Further, no opinion is expressed as to title
to any engines or other property.
This opinion is furnished by me at your request for your sole
benefit and no other person or entity shall be entitled to rely on this opinion
without our express written consent. My opinion is limited to the matters
stated herein and no opinion is implied or may be inferred beyond the matters
expressly stated herein.
Very truly yours,
David L. Lloyd, Jr.
SCHEDULE A
----------
Lessee
Federal Express Corporation
2007 Corporate Avenue
Memphis, Tennessee 38132
Owner Trustee
State Street Bank and Trust Company
of Connecticut, National Association
Two International Place
4th Floor
Boston, Massachusetts 02110
Indenture Trustee, Pass Through Trustee & Subordination Agent
First Security Bank, National Association
79 South Main Street
Salt Lake City, Utah 84111
Underwriters
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
First Chicago Capital Markets, Inc.
Corporate Securities
One First National Plaza
Chicago, Illinois 60670
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
J.P. Morgan & Co.
60 Wall Street
New York, New York 10260
Liquidity Provider
Kredietbank N.V., New York Branch
125 West 55th Street
New York, New York 10019
Owner Participant
EXHIBIT A(7)
[Letterhead of Daugherty, Fowler & Peregrin]
[Delivery Date]
To the Parties Named on Schedule A attached hereto
Re: Federal Express Corporation Trust No. N584FE
Ladies and Gentlemen:
This opinion is furnished to you pursuant to Section
4.02(d)(iii) of the Participation Agreement (Federal Express Corporation Trust
No. N584FE), dated as of May 1, 1997 (the "Participation Agreement") among
Federal Express Corporation, as Lessee (the "Lessee"), _________________, as
Owner Participant (the "Owner Participant"), State Street Bank and Trust
Company of Connecticut, National Association, not in its individual capacity,
except as otherwise stated, but solely as Owner Trustee ("Owner Trustee"),
First Security Bank, National Association, not in its individual capacity,
except as otherwise stated, but solely as Indenture Trustee ("Indenture
Trustee"), Pass Through Trustee and Subordination Agent, with respect to that
portion of Subtitle VII of Title 49 of the United States Code relative to the
recordation of instruments and the registration of aircraft thereunder.
The capitalized terms herein shall, unless otherwise defined,
have the same meanings given them in the Participation Agreement or in Annex I
attached hereto.
We have examined and filed on this date with the Federal
Aviation Administration (the "FAA") the following described instruments at the
respective times listed below:
(a) AC Form 8050-2 Aircraft Bill of Sale dated _____________
(the "FAA Bill of Sale") from the Lessee, as seller,
conveying title to the Airframe to the Owner Trustee,
which FAA Bill of Sale was filed at ____ _.m., C._.T.;
(b) AC Form 8050-1 Aircraft Registration Application dated
_____________ (the "Aircraft Registration Application") by
the Owner Trustee, as applicant, covering the Airframe,
which Aircraft Registration Application was filed at ____
_.m., C._.T.;
(c) Affidavit of the Owner Trustee dated _____________ (the
"Owner Trustee Affidavit") pursuant to Section
47.7(c)(2)(ii) of Part 47 of the Federal Aviation
Regulations together with Affidavit of the Owner
Participant dated _____________ (the "Owner Participant
Affidavit") attached thereto, which Owner Trustee
Affidavit with the Owner Participant Affidavit attached
was filed at ____ _.m., C._.T.;
(d) executed counterpart of Trust Agreement (Federal Express
Corporation Trust No. N584FE) dated as of May 1, 1997
(the "Trust Agreement") between the Owner Participant and
the Owner Trustee, which Trust Agreement was filed at
____ _.m., C._.T.;
(e) executed counterpart of Trust Indenture and Security
Agreement (Federal Express Corporation Trust No. N584FE)
dated as of May 1, 1997 (the "Trust Indenture") between
the Owner Trustee and the Indenture Trustee, with
executed counterpart of Indenture and Security Agreement
Supplement No. 1 (Federal Express Corporation Trust No.
N584FE) dated _____________ (the "Trust Indenture
Supplement") by the Owner Trustee, covering the Aircraft,
attached thereto, which Trust Indenture with the Trust
Indenture Supplement attached was filed at ____ _.m.,
C._.T.; and,
(f) executed counterpart of Lease Agreement (Federal Express
Corporation Trust No. N584FE) dated as of May 1, 1997
(the "Lease") between the Owner Trustee, as lessor, and
the Lessee, with executed counterparts of the following
attached thereto: (i) Lease Supplement No. 1 (Federal
Express Corporation Trust No. N584FE) dated _____________
(the "Lease Supplement") between the Owner Trustee, as
lessor, and the Lessee, covering the Aircraft; (ii) the
Trust Indenture; and (iii) the Trust Indenture
Supplement, which Lease with the foregoing attachments
(collectively, the "Lease Attachments") attached was
filed at ____ _.m., C._.T.
The Confidential Omissions were intentionally omitted from the
FAA filing counterparts of the Lease and the Trust Indenture as containing
confidential financial information.
Based upon our examination of the above described instruments
and of such records of the FAA as we deemed necessary to render this opinion,
it is our opinion that:
1. the FAA Bill of Sale, the Trust Indenture with the Trust
Indenture Supplement attached and the Lease with the
Lease Attachments attached are in due form for recordation
by and have been duly filed for recordation with the FAA
pursuant to and in accordance with the provisions of 49
U.S.C. Section 44107;
2. the Aircraft Registration Application, the Owner Trustee
Affidavit with the Owner Participant Affidavit attached
and the Trust Agreement are in due form for filing and
have been duly filed with the FAA pursuant to and in
accordance with the provisions of 49 U.S.C. Section
44103(a) and Section 47.7(c) of the Federal Aviation
Regulations;
3. the Airframe is eligible for registration under 49 U.S.C.
Section 44102 in the name of the Owner Trustee and the
filing with the FAA of the FAA Bill of Sale, the Aircraft
Registration Application, the Owner Trustee Affidavit with
the Owner Participant Affidavit attached and the Trust
Agreement will cause the FAA to register the Airframe, in
due course, in the name of the Owner Trustee and to issue
to the Owner Trustee an AC Form 8050-3 Certificate of
Aircraft Registration for the Airframe, and the Airframe
will be duly registered pursuant to and in accordance
with the provisions of 49 U.S.C. Section 44103(a);
4. the Owner Trustee has valid legal title to the Airframe
and the Aircraft is free and clear of all Liens, except
(i) the security interest created by the Trust Indenture,
as supplemented by the Trust Indenture Supplement, and
(ii) the rights of the parties under the Lease, as
supplemented by the Lease Supplement;
5. the rights of the Owner Trustee and the Lessee under the
Lease, as supplemented by the Lease Supplement, with
respect to the Aircraft, are perfected;
6. the Trust Indenture, as supplemented by the Trust
Indenture Supplement, constitutes a duly perfected first
priority security interest in the Aircraft and a duly
perfected first assignment of all the right, title and
interest of the Owner Trustee in, to and under the Lease
and the Lease Supplement (insofar as such assignment
affects an interest covered by the recording system
established by the FAA pursuant to 49 U.S.C. Section
44107), and no other registration of the Airframe or
filings other than filings with the FAA (which have been
duly effected) are necessary in order to perfect in any
applicable jurisdiction in the United States (A) the
Owner Trustee's title to the Airframe or (B) such
security interest and assignment (insofar as such
assignment affects an interest covered by the recording
system established by the FAA pursuant to 49 U.S.C.
Section 44107), it being understood that no opinion is
herein expressed as to the validity, priority or
enforceability of such security interest and assignment
under local law or as to the recognition of the
perfection of such security interest and assignment as
against third parties in any legal proceeding outside the
United States;
7. no authorization, approval, consent, license or order of,
or registration with, or the giving of notice to, the FAA
is required for the valid authorization, delivery and
performance of the Lease, as supplemented by the Lease
Supplement, the Trust Indenture, as supplemented by the
Trust Indenture Supplement, or the Trust Agreement except
for such filings as are referred to above; and,
8. neither the execution and delivery by the Owner
Participant of the Participation Agreement or the Trust
Agreement, nor other consummation of the transactions
contemplated thereby by the Owner Participant, requires
the consent or approval of, or the giving of notice to,
or the registration of, or the taking of any other action
in respect of the FAA, except (x) the registration of the
Airframe, including the submission of the Aircraft
Registration Application, the Owner Trustee Affidavit,
the Owner Participant Affidavit and the Trust Agreement
to the FAA and (y) the filings for recordation specified
elsewhere in this opinion.
No opinion is expressed as to the Airframe during any period or
periods of time during which it has not been subject to United States
registration.
No opinion is expressed as to laws other than Federal laws of
the United States. In rendering this opinion, we were subject to the accuracy
of the FAA, its employees and agents, in the filing, indexing and recording of
instruments filed with the FAA and in the search for encumbrance
cross-reference index cards for the Engines. Further, in rendering this
opinion we are assuming the validity and enforceability of the above described
instruments under local law. Since our examination was limited to records
maintained by the FAA, our opinion does not cover liens which are perfected
without the filing of notice thereof with the FAA, such as federal tax liens,
liens arising under Section 1368(a) of Title 29 of the United States Code,
possessory artisan's liens, or matters of which the parties had actual notice.
In rendering this opinion we are assuming that there are no documents with
respect to the Aircraft which have been filed for recording under the
recording system of the FAA but have not yet been listed in the available
records of such system as having been so filed.
In rendering this opinion we have relied upon the opinion of the
Assistant Chief Counsel of the Aeronautical Center dated _____________, a copy
of which is attached hereto.
Very truly yours,
Robert M. Peregrin
For the Firm
Annex I
Certain Definitions
-------------------
Airframe, Engines and Aircraft
------------------------------
One (1) McDonnell Douglas MD-11F aircraft bearing
manufacturer's serial number 48421 and U.S. Registration No. 1752K (the
"Airframe") and three (3) General Electric CF6-80C2-D1F aircraft engines
bearing manufacturer's serial numbers ___-___, ___=___ and ___-___ (the
"Engines") (the Airframe and the Engines are referred to collectively as the
"Aircraft").
Confidential Omissions
----------------------
The Lease was filed with the FAA, with (i) the Basic Rent
(Schedule II), (ii) the Stipulated Loss Values (Schedule III), (iii) the
Termination Values (Schedule IV) and (iv) the Purchase Option Schedule
(Schedule V) omitted from the FAA filing counterpart thereof as containing
confidential financial information; and (v) the purchase price under Section
4.02(a)(F) set forth in Ancillary Agreement II, which was not attached to the
FAA filing counterpart of the Lease or otherwise filed with the FAA for
recordation.
SCHEDULE A
----------
Lessee
Federal Express Corporation
2007 Corporate Avenue
Memphis, Tennessee 38132
Owner Trustee
State Street Bank and Trust Company
of Connecticut, National Association
Two International Place
4th Floor
Boston, Massachusetts 02110
Indenture Trustee, Pass Through Trustee & Subordination Agent
First Security Bank, National Association
79 South Main Street
Salt Lake City, Utah 84111
Underwriters
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
First Chicago Capital Markets, Inc.
Corporate Securities
One First National Plaza
Chicago, Illinois 60670
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
J.P. Morgan & Co.
60 Wall Street
New York, New York 10260
Liquidity Provider
Kredietbank N.V., New York Branch
125 West 55th Street
New York, New York 10019
Owner Participant
EXHIBIT B
[FORM OF LEASE AGREEMENT]
[See Exhibit 4.e]
EXHIBIT C
[FORM OF INDENTURE]
[See Exhibit 4.b.1]
EXHIBIT D
[FORM OF TRUST AGREEMENT]
[See Exhibit 4.d]
EXHIBIT E
ENGINE WARRANTY ASSIGNMENT
(FEDERAL EXPRESS CORPORATION TRUST NO. N584FE)
Words and phrases appearing in this Engine Warranty Assignment (the
"Assignment") shall have the respective meanings as defined below:
A. General Terms Agreement means that agreement dated as of July 3,
1991, (the "GTA") by and between the Engine Manufacturer and
Federal Express Corporation ("Fed Ex"), including the Engine
Product Support Plan at Exhibit B, insofar as such Product Support
Plan relates to the Engine Warranties (the "Product Support
Plan"), but excluding any and all letter agreements attached
thereto.
B. Engine Warranties means the Engine Manufacturer's New Engine
Warranty, New Parts Warranty, Ultimate Life Warranty and Campaign
Change Warranty, as set forth in the Engine Manufacturer's Product
Support Plan which forms a part of the GTA, and as limited by the
applicable terms of such GTA and Product Support Plan.
C. Engine means each of the CF6-80C2-D1F series engines installed on the
aircraft at the time of delivery to the Assignor, each bearing Engine
Manufacturer's serial numbers ___-___, ___-___ and ___-___,
respectively.
D. Replacement Engine means each of the CF6-80C2-D1F series engines
which are not subject to this Assignment and are a replacement or
substitute for an Engine, excluding, however, any engines obtained
from the Engine Manufacturer's lease pool which are installed on
the aircraft for the limited purpose of permitting the continued
operation of the aircraft during the period necessary to effect or
complete repairs or overhaul of an Engine.
E. Lease means the Lease Agreement (Federal Express Corporation Trust
No. N584FE), dated as of May 1, 1997, (the "Lease") between State
Street Bank and Trust Company of Connecticut, National Association
(not in its individual capacity, but solely as Owner Trustee), as
Lessor ("Lessor") and Fed Ex, as Lessee, as amended, modified or
supplemented from time to time.
All other capitalized terms used and not defined herein that are in the
Lease shall, when used herein, have the meanings specified in the Lease.
1
Fed Ex, pursuant to the terms and conditions herein, hereby sells, assigns,
transfers and sets over unto the Lessor all of its rights, claims and
interests in and under the GTA and the Product Support Plan, as such apply to
the Engines, to enforce in the Lessor's own name such rights as Fed Ex may
have with respect to the Engine Warranties, to the extent the same relate to
the Engines, and to retain any benefit resulting therefrom; provided, however,
that there is reserved to Fed Ex all of its other rights, claims and interests
under the GTA except as expressly stated above. Fed Ex shall, during the term
of the Lease (but only so long as no Event of Default shall have occurred and
be continuing), have the benefit of and shall be entitled to enforce (as it
shall deem appropriate), either in its own name or (at the cost of Fed Ex) in
the name of the Lessor for the use and benefit of Fed Ex, any and all Engine
Warranties available to the Lessor under the GTA in respect of the Engines and
each Part thereof, and the Lessor agrees (but only so long as no Event of
Default shall have occurred and be continuing) at Fed Ex's expense to do,
execute and deliver such further acts, deeds, matters or things as may be
reasonably requested by Fed Ex and necessary to enable Fed Ex to obtain
customary warranty services furnished for the Engines or any Part thereof
pursuant to the Engine Warranties. Fed Ex shall, at the Lessor's expense,
cooperate with the Lessor and take such action as the Lessor reasonably deems
necessary to enable the Lessor to enforce such rights, claims and interests as
assigned herein.
2
Notwithstanding anything in this Assignment or the Consent attached hereto
and incorporated herein to the contrary, Fed Ex and the Lessor confirm
expressly for the benefit of the Engine Manufacturer that:
A. The Lessor agrees that it will not, without the prior written consent
of the Engine Manufacturer, disclose, directly or indirectly, to any
third party, any of the terms of the Engine Warranties disclosed to
it by the Engine Manufacturer incident to effecting the assignment
herein; provided, however, that (1) the Lessor may use, retain and
disclose such information on a confidential basis to its special
counsel, independent insurance brokers, bank examiners or similar
regulatory authorities, auditors and public accountants, (2) the
Lessor may use, retain and disclose on a confidential basis such
information to the Owner Participant, the Indenture Trustee, the Pass
Through Trustee and any Certificate Holder, as the case may be, and
their special counsel, independent insurance brokers, bank examiners
or similar regulatory authorities, auditors and public accountants,
(3) the Lessor may disclose such information as required by
applicable laws, governmental regulations, subpoena, or other written
demand under color of legal right, but it shall first, as soon as
practicable upon receipt of such demand and to the extent permitted
by applicable laws, furnish a copy thereof to Fed Ex and to the
Engine Manufacturer, and the Lessor, to the extent permitted by
applicable law, shall afford Fed Ex and the Engine Manufacturer
reasonable opportunity, at the moving party's cost and expense, to
obtain a protective order or other assurance reasonably satisfactory
to the Engine Manufacturer of confidential treatment of the
information required to be disclosed, (4) the Lessor may disclose
such information as required to enforce its rights under the Engine
Warranties assigned to it pursuant to this Assignment, and (5) the
Lessor may disclose such information to any bona fide potential
purchaser of the Aircraft and/or Engines or any beneficial interest
therein (subject to the execution by such prospective purchaser of a
written confidentiality statement setting forth the same or
substantially similar terms as those referred to in this paragraph).
B. Without in any way releasing Fed Ex from any of its duties or
obligations under the GTA, the Lessor agrees that, insofar as the
provisions of the GTA relate to the Engines, in exercising any rights
under such Engine Warranties or in making any claim with respect
thereto, the applicable terms and conditions of the GTA, including
Article Eight (Limitation of Liability) and the Product Support Plan,
shall apply to, and be binding upon, the Lessor to the same extent as
Fed Ex.
C. Insofar as the provisions of the GTA relate to the Engines, in
exercising any rights under the Engine Warranties or in making any
claim with respect thereto, the applicable terms and conditions of
the GTA and the Product Support Plan or the Consent attached hereto
and incorporated herein shall apply to, and be binding upon, the
Lessor to the same extent as if named "Airline" therein. It is
expressly agreed that Fed Ex shall at all times remain liable to the
Engine Manufacturer under the GTA to perform all the duties and
obligations of Fed Ex thereunder to the same extent as if this
Assignment had not been executed. The performance by the Lessor of
any of the rights assigned hereunder shall not release Fed Ex from
any of its duties or obligations to the Engine Manufacturer under the
GTA except to the extent that such exercise by the Lessor shall
constitute performance of such duties and obligations.
D. Nothing contained in this Assignment shall subject the Engine
Manufacturer to any obligation or liability to which it would not
otherwise be subject under the GTA or modify in any respect the
Engine Manufacturer's contract rights thereunder, or subject the
Engine Manufacturer to any multiple or duplicative liability or
obligation under the GTA. The Engine Manufacturer recognizes and it
is consented to by all parties to this Assignment that the Lessor
shall collaterally assign its rights under the Lease and this
Assignment and will mortgage the Aircraft and Engines, to First
Security Bank, National Association, as Indenture Trustee under the
Trust Indenture, Mortgage and Security Agreement (Federal Express
Corporation Trust No. N584FE), dated as of May 1, 1997 (on the terms
set forth therein); however, no further extension or assignment
(except to a successor indenture trustee under such agreement) of any
remaining Engine Warranties, including but not limited to extensions
or assignments for security purposes, are permitted without the prior
written consent of the Engine Manufacturer.
E. Exclusive of the assignment noted in Section 2D above, the Engine
Manufacturer shall not be deemed to have knowledge of any change in
the authority of Fed Ex or the Lessor, as the case may be, to
exercise the rights established hereunder until the Engine
Manufacturer has received written notice thereof from the Indenture
Trustee or the Lessor. Such notice shall be sent to: Commercial
Contracts Director, GE Aircraft Engines, Mail Drop F17, One Neumann
Way, Box 156301, Cincinnati, Ohio 45215-6301, facsimile: (513)
243-8068.
F. This Assignment shall apply only in respect to each Engine and shall
not extend to any replacement or substitute engine. If, during the
term of this Assignment and the Lease, it becomes necessary to
replace or substitute an Engine due to a Failure (as such term is
defined in the Engine Product Support Plan, excluding normal wear,
tear and deterioration which can be restored by overhaul and repair),
damage or loss, the Assignor (or the Lessor) shall give the Engine
Manufacturer written notice of such Failure, damage or loss. The
notice shall include (i) a description of the event or circumstances
which constitute a Failure, damage or loss, and (ii) the serial
numbers of the (a) failed, damaged or lost Engine and (b) Replacement
Engine and shall be sent to: Customer Support Manager, GE Aircraft
Engines, 111 Merchant Street, Room 450, Cincinnati, Ohio 45246. The
Engine Manufacturer shall not be deemed to have knowledge of the need
for a replacement engine until it has received the aforementioned
notice.
In the event an Engine subject to this Assignment fails, is damaged
or lost, and such Engine is replaced by a Replacement Engine, the
Assignor and the Assignee shall, prior to, or contemporaneous with,
the delivery of such Replacement Engine, obtain the written consent
of the Engine Manufacturer (which it shall be obligated to give) that
the Engine Warranties as set forth in the Engine Product Support Plan
shall apply to such Replacement Engines. The Engine Manufacturer
shall not incur any obligation or liability for a Replacement Engine
under the Engine Warranties until the execution of the aforementioned
consent.
G. At any time and upon the written request of the Engine Manufacturer,
Fed Ex and the Lessor shall promptly and duly execute and deliver any
and all such further assurances, instruments and documents and take
all such further action, at the expense of Fed Ex, as the Engine
Manufacturer may reasonably request in order to obtain the full
benefit of Fed Ex and the Lessor's agreement as set forth in this
Assignment and the Consent attached hereto and incorporated herein.
Any performance by the Engine Manufacturer that discharges its
obligation under the Engine Warranties will satisfy the respective
interests of Fed Ex and the Lessor. So long as the Engine
Manufacturer acts in good faith in accordance with this Assignment,
the Engine Manufacturer may rely conclusively on any notice given
pursuant to this Assignment without inquiring as to the accuracy of,
or the entitlement of the party to give, such notice.
3
The Engine Manufacturer shall reserve to Fed Ex all those rights, claims
and interests, as and to the extent such relates to the purchase and
operation of engines other than the Engines subject to the Assignment, as
well as other matters not directly pertaining to the Engines, and Fed Ex
will have or retain under the GTA such rights, claims and interest not
expressly assigned to the Lessor hereunder.
4
The Engine Manufacturer warrants each new Reverser (as such is defined in
the Engine Product Support Plan) installed on the Aircraft at the time of
delivery to Fed Ex under the terms of the New Engine Warranty; however,
administration of such New Engine Warranty, with respect to both installed and
replacement Reversers, shall be performed by Martin Marietta.
5
If at some point in time, the Engine Manufacturer receives written
notification from the Indenture Trustee or the Lessor that the Lessor is or
becomes entitled to possession of the Engines, pursuant to an Event of Default
or otherwise, and desires to sell or lease the Engines to a party who is not
currently a party to a General Terms Agreement with the Engine Manufacturer,
the Engine Manufacturer agrees if such agreement is permissible under
applicable U.S. law, that it will offer to such purchaser or lessee, subject
to the execution of an agreement to sell or lease such Engines, a General
Terms Agreement on the Engine Manufacturer's standard terms and conditions.
If, however, such purchaser or lessee is currently a party to a General Terms
Agreement with the Engine Manufacturer, the remaining portion of the terms of
such General Terms Agreement shall be extended to and apply to such subsequent
purchase or lease; provided, however, that the written consent of the Engine
Manufacturer to such an extension is obtained prior to the transaction's
occurrence.
This Assignment shall be governed by the laws of the State of New York,
including all matters of construction, validity and performance, as applicable
to contracts between citizens of that state to be performed wholly within that
state, and without reference to conflicts of law principles.
In witness whereof, the parties hereto have caused this Engine Warranty
Assignment to be duly executed and delivered as of the date hereof.
General Electric Company
_____________________________
Name:
Title:
Federal Express Corporation
_____________________________
Name: Robert D. Henning
Title: Assistant Treasurer and
Managing Director -
Structured Finance
State Street Bank and Trust Company
of Connecticut, National Association
not in its individual capacity,
but solely as Owner Trustee
_____________________________
Name: Paul D. Allen
Title: Vice President
CONSENT
(FEDERAL EXPRESS CORPORATION TRUST NO. N584E)
The Engine Manufacturer, General Electric Company (the "Engine
Manufacturer"), a New York corporation, hereby consents to the Engine Warranty
Assignment attached hereto and acknowledges notice of (i) the Lease Agreement
(Federal Express Corporation Trust No. N584FE), dated as of May 1, 1997 and
entered into by and between Fed Ex, as Lessee and State Street Bank and
Trust Company of Connecticut, National Association, as Lessor (as in
effect from time to time, the "Lease") and (ii) the Trust Indenture and
Security Agreement (Federal Express Corporation Trust No. N584FE), dated
as of May 1, 1997 (the "Indenture"), between the Lessor and First Security
Bank, National Association, as Indenture Trustee ("Indenture Trustee").
The Lease covers three GE CF6-80C2-D1F series engines bearing Engine
Manufacturer's serial numbers ___-___, ___-___ and ___-___, respectively,
(the "Engines") as installed on the McDonnell Douglas MD-11F series
aircraft bearing Manufacturer's serial number 48436 (the "Aircraft"). In
connection with such Lease, reference is made to the General Terms
Agreement No. 6-9034 dated as of July 3, 1991, between the Engine
Manufacturer and Fed Ex (the "General Terms Agreement"), under which the
Engine Manufacturer agreed to support certain GE CF6-80C2-D1F series
engines, including the Engines and spare parts therefor to be purchased by
Fed Ex from the Engine Manufacturer, as installed on certain McDonnell
Douglas MD-11F series aircraft, including the Aircraft. Recognizing that
the Lessor and Fed Ex have entered into the Lease which provides for the
lease by the Lessor to Fed Ex of the Aircraft and Engines and that the
Lessor has granted a security interest in the Engines and assigned certain
of its rights under the Lease to the Indenture Trustee, the Engine
Manufacturer agrees that in furtherance of the Lease, it will so support
such Engines and spare parts therefor, subject to the applicable terms and
conditions of the General Terms Agreement, including Article Eight
(Limitation of Liability).
The Engine Manufacturer represents and warrants that:
1. it is a corporation existing in good standing under the laws of
the State of New York;
2. the making and performance of this Consent in accordance with
its terms has been duly authorized by all necessary corporate
action on the part of the Engine Manufacturer, does not require
any shareholder approval and does not contravene its
certificate of incorporation or by-laws or any debenture,
credit agreement or other contractual agreement to which the
Engine Manufacturer is a party or by which it is bound or any
law binding on the Engine Manufacturer;
3. the making and performance of the Engine Warranties, as defined
in the Engine Warranty Assignment attached hereto (the "Engine
Warranties") in accordance with their terms have been duly
authorized by all necessary corporate action on the part of the
Engine Manufacturer, do not require any shareholder approval
and do not contravene the Engine Manufacturer's certificate of
incorporation or by-laws or any debenture, credit agreement or
other contractual agreement to which the Engine Manufacturer is
a party or by which it is bound or any law binding on the
Engine Manufacturer; and
4. the Engine Warranties constitute, as of the date on which they
were made and at all times thereafter, and this Consent and the
Engine Warranty Assignment attached hereto are, binding
obligations of the Engine Manufacturer enforceable against the
Engine Manufacturer in accordance with its terms subject to:
(a) the limitation of applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the rights
of creditors generally; and
(b) general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at
law).
This Consent shall be governed by the laws of the State of New York,
including all matters of construction, validity and performance, as applicable
to contracts between citizens of that state to be performed wholly within that
state, and without reference to conflicts of law principles.
General Electric Company
______________________________
Name:
Title:
PARTICIPATION AGREEMENT
(FEDERAL EXPRESS CORPORATION TRUST NO. N587FE)
Dated as of December 1, 1996
Amended and Restated as of May 1, 1997
among
FEDERAL EXPRESS CORPORATION,
Lessee
COMERICA LEASING CORPORATION
and
NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION,
Owner Participants
MORGAN GUARANTY TRUST COMPANY OF NEW YORK,
Original Loan Participant
WILMINGTON TRUST COMPANY,
Not in Its Individual Capacity
Except as Otherwise Expressly
Set Forth Herein, but Solely as Owner Trustee,
Owner Trustee
STATE STREET BANK AND TRUST COMPANY,
Original Indenture Trustee
FIRST SECURITY BANK, NATIONAL ASSOCIATION,
Indenture Trustee
FIRST SECURITY BANK, NATIONAL ASSOCIATION,
Pass Through Trustee
and
FIRST SECURITY BANK, NATIONAL ASSOCIATION,
Subordination Agent
______________________________
LEVERAGED LEASE OF ONE MCDONNELL DOUGLAS MD-11F AIRCRAFT
SERIAL NO. 48489, REGISTRATION NO. N587FE
TABLE OF CONTENTS
Page
Initial Recitals........................................................... 1
ARTICLE 1
DEFINITIONS
ARTICLE 2
Section 2.01. Transfer of Funds........................................ 4
Section 2.02. Certificates............................................. 7
ARTICLE 3
EXTENT OF INTEREST OF ORIGINAL LOAN PARTICIPANT
Section 3.01. Extent of Interest of Original Loan Participant.......... 7
ARTICLE 4
CONDITIONS PRECEDENT
Section 4.01. Conditions Precedent..................................... 7
Section 4.02. Opinion of Special Aviation Counsel...................... 17
ARTICLE 5
CONDITIONS PRECEDENT TO LESSEE'S OBLIGATIONS
Section 5.01. Conditions Precedent to Lessee's Obligations............. 18
ARTICLE 6
LESSEE'S REPRESENTATIONS, WARRANTIES AND COVENANTS
Section 6.01. Lessee's Representations and Warranties.................. 18
Section 6.02. Offering by Lessee....................................... 24
Section 6.03. Certain Covenants of Lessee.............................. 24
Section 6.04. Survival of Representations and Warranties............... 32
ARTICLE 7
OTHER PARTIES' REPRESENTATIONS, WARRANTIES AND COVENANTS
Section 7.01. Acquisitions and Offerings of Interests in Lessor's
Estate................................................... 33
Section 7.02. Citizenship, Etc......................................... 33
Section 7.03. Representations, Warranties and Covenants of Owner
Participants............................................. 35
Section 7.04. Representations, Covenants and Warranties of WTC and the
Owner Trustee............................................ 38
Section 7.05. Representations, Warranties and Covenants of the Indenture
Trustee.................................................. 41
Section 7.06. Indenture Trustee's Notice of Default.................... 42
Section 7.07. Releases from Indenture.................................. 42
Section 7.08. Covenant of Quiet Enjoyment.............................. 43
Section 7.09. Original Loan Participant's, Original Indenture Trustee's
and Pass Through Trustee's Representations and
Warranties............................................... 43
Section 7.10. Survival of Representations, Warranties and Covenants.... 44
Section 7.11. Lessee's Assumption of the Certificates.................. 44
Section 7.12. Indebtedness of Owner Trustee............................ 46
Section 7.13. Compliance with Trust Agreement, Etc..................... 47
Section 7.14. Subordination Agent's Representations, Warranties and
Covenants................................................ 47
ARTICLE 8
TAXES
Section 8.01. Lessee's Obligation to Pay Taxes......................... 49
Section 8.02. After-Tax Basis.......................................... 55
Section 8.03. Time of Payment.......................................... 56
Section 8.04. Contests................................................. 56
Section 8.05. Refunds.................................................. 58
Section 8.06. Lessee's Reports......................................... 59
Section 8.07. Survival of Obligations.................................. 60
Section 8.08. Payment of Taxes......................................... 60
Section 8.09. Reimbursements by Indemnitees Generally.................. 60
ARTICLE 9
GENERAL INDEMNITY
Section 9.01. Generally................................................ 60
Section 9.02. After-Tax Basis.......................................... 64
Section 9.03. Subrogation.............................................. 64
Section 9.04. Notice and Payment....................................... 65
Section 9.05. Refunds.................................................. 65
Section 9.06. Defense of Claims........................................ 65
Section 9.07. Survival of Obligations.................................. 66
Section 9.08. Effect of Other Indemnities.............................. 66
Section 9.09. Interest................................................. 67
ARTICLE 10
TRANSACTION COSTS
Section 10.01. Transaction Costs and Other Costs....................... 67
ARTICLE 11
SUCCESSOR OWNER TRUSTEE
Section 11.01. Appointment of Successor Owner Trustee.................. 70
ARTICLE 12
LIABILITIES AND INTERESTS OF THE OWNER PARTICIPANTS AND HOLDERS
Section 12.01. Liabilities of the Owner Participants................... 71
Section 12.02. Interest of Holders of Certificates..................... 71
ARTICLE 13
OTHER DOCUMENTS
Section 13.01. Consent of Lessee to Other Documents.................... 71
Section 13.02. Further Assurances...................................... 72
Section 13.03. No Retroactive Application.............................. 72
Section 13.04. Pass Through Trustee's and Subordination Agent's
Acknowledgement......................................... 72
ARTICLE 14
NOTICES
Section 14.01. Notices................................................. 73
ARTICLE 15
REFINANCING/REOPTIMIZATION
Section 15.01. Refinancing............................................. 74
Section 15.02. Reoptimization.......................................... 77
ARTICLE 16
[RESERVED]
ARTICLE 17
MISCELLANEOUS
Section 17.01. Owner for Federal Tax Purposes.......................... 78
Section 17.02. [Reserved].............................................. 78
Section 17.03. Counterparts............................................ 79
Section 17.04. No Oral Modifications................................... 79
Section 17.05. Captions................................................ 79
Section 17.06. Successors and Assigns.................................. 79
Section 17.07. Concerning the Owner Trustee, Indenture Trustee and the
Pass Through Trustee.................................... 79
Section 17.08. Severability............................................ 80
Section 17.09. Public Release of Information........................... 80
Section 17.10. Certain Limitations on Reorganization................... 80
Section 17.11. GOVERNING LAW........................................... 81
Section 17.12. Section 1110 Compliance................................. 81
Section 17.13. Reliance of Liquidity Providers......................... 81
ARTICLE 18
CONFIDENTIALITY
Section 18.01. Confidentiality......................................... 82
SCHEDULE I Certificate Information
SCHEDULE II Definitions
SCHEDULE III Permitted Country List
EXHIBIT A(1)(a) Opinion of Lessee's Counsel
EXHIBIT A(1)(b) Opinion of Lessee's Special Counsel
EXHIBIT A(2)(a) Opinion of Owner Participants' and Owner Participant
Guarantor's Special Counsel
EXHIBIT A(2)(b) Opinion of Owner Participant's Counsel
(Comerica Leasing Corporation)
EXHIBIT A(2)(c) Opinion of Owner Participant Guarantor's Counsel
(Comerica Bank)
EXHIBIT A(2)(d) Opinion of Owner Participant's Counsel
(Norwest Bank Minnesota, National Association)
EXHIBIT A(3) Opinion of Indenture Trustee's Special Counsel
EXHIBIT A(4) Opinion of Special Aviation Counsel
EXHIBIT A(5) Opinion of Owner Trustee's Special Counsel
EXHIBIT A(6) Opinion of Pass Through Trustee's and the Subordination
Agent's Special Counsel
EXHIBIT A(7)(A) Opinion of Liquidity Provider's Counsel
EXHIBIT A(7)(B) Opinion of Liquidity Provider's Special Counsel
EXHIBIT B Form of Lease Agreement
EXHIBIT C Form of Indenture
EXHIBIT D Form of Trust Agreement
PARTICIPATION AGREEMENT
(FEDERAL EXPRESS CORPORATION TRUST NO. N587FE)
PARTICIPATION AGREEMENT (FEDERAL EXPRESS CORPORATION TRUST NO.
N587FE) dated as of December 1, 1996, as amended and restated as of May 1,
1997 (this "Agreement") among FEDERAL EXPRESS CORPORATION, a Delaware
corporation (herein, together with its successors and permitted assigns, the
"Lessee"), COMERICA LEASING CORPORATION, a Michigan corporation (formerly
known as CMCA Lease, Inc.), and NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION, a
national banking association (herein, individually, together with its
successors and permitted assigns, each an "Owner Participant" and collectively
together with their successors and permitted assigns, the "Owner
Participants"), MORGAN GUARANTY TRUST COMPANY OF NEW YORK, (together with its
successors and permitted assigns, the "Original Loan Participant"), WILMINGTON
TRUST COMPANY, a Delaware banking corporation, not in its individual capacity,
except as otherwise expressly stated herein, but solely as owner trustee under
the Trust Agreement referred to below (in such capacity as trustee, together
with its successors and permitted assigns, the "Owner Trustee"), STATE STREET
BANK AND TRUST COMPANY, a Massachusetts trust company, not in its individual
capacity, except as otherwise expressly stated herein, but solely as indenture
trustee under the Original Indenture referred to below (in such capacity as
trustee, the "Original Indenture Trustee"), FIRST SECURITY BANK, NATIONAL
ASSOCIATION, a national banking association, not in its individual capacity,
except as otherwise expressly stated herein, but solely as indenture trustee
under the Indenture referred to below (in such capacity as successor to the
Original Indenture Trustee, the "Indenture Trustee"), FIRST SECURITY BANK,
NATIONAL ASSOCIATION, a national banking association, not in its individual
capacity, except as otherwise expressly stated herein, but solely as pass
through trustee of three separate Pass Through Trusts (in such capacity as
trustee, together with its successors and permitted assigns, the "Pass Through
Trustee") and FIRST SECURITY BANK, NATIONAL ASSOCIATION, a national banking
association, not in its individual capacity, except as otherwise expressly
stated herein, but solely as subordination agent (in such capacity as trustee,
together with its successors and permitted assigns, the "Subordination Agent").
W I T N E S S E T H :
WHEREAS, the Lessee, the Owner Participants, the Owner Trustee, the
Original Loan Participant and the Original Indenture Trustee entered into the
Original Participation Agreement (such term, and all other terms not
heretofore defined, shall have the meanings assigned thereto as provided in
Article 1 below), providing for the sale and lease of the Aircraft that was
delivered on the Delivery Date;
WHEREAS, concurrently with the execution and delivery of the Original
Participation Agreement, the Owner Participants entered into the Original Trust
Agreement relating to the Aircraft with WTC in its individual capacity,
pursuant to which WTC agreed, among other things, to hold the Lessor's Estate
in trust for the ratable benefit of the Owner Participants;
WHEREAS, concurrently with the execution and delivery of the Original
Participation Agreement, the Owner Trustee and the Original Indenture Trustee
entered into the Original Indenture, for the benefit of the Original Loan
Participant, pursuant to which the Owner Trustee issued to the Original Loan
Participant the Original Loan Certificates as evidence of the loans made by
the Original Loan Participant to the Owner Trustee, the proceeds of which were
used by the Owner Trustee to pay a portion of the Purchase Price for the
Aircraft;
WHEREAS, concurrently with the execution and delivery of the Original
Participation Agreement, the Owner Trustee and the Lessee entered into the
Original Lease relating to the Aircraft, whereby, subject to the terms and
conditions set forth in said Lease, the Owner Trustee agreed to lease the
Aircraft to the Lessee, and the Lessee agreed to lease the Aircraft from the
Owner Trustee, such lease of the Aircraft being evidenced by the execution and
delivery of the Lease Supplement;
WHEREAS, Article 15 of the Original Participation Agreement permits a
Refinancing of the Original Loan Certificates subject to the satisfaction of
the conditions specified in Section 15.01 thereof, and Section 3.04 of the
Original Lease contemplates the adjustment of the percentages for Basic Rent,
Stipulated Loss Value, EBO Price and Termination Value in the event of such a
Refinancing, and the Lessee has requested that the Owner Trustee effect such a
Refinancing and adjustment;
WHEREAS, the Original Indenture Trustee wishes to resign as Indenture
Trustee under the Operative Agreements, the parties hereto are willing to
accept such resignation and First Security Bank, National Association is
willing to become the Indenture Trustee;
WHEREAS, in order to facilitate such Refinancing, the Lessee is
concurrently entering into an Underwriting Agreement, which relates to three
series of Pass Through Certificates that will be issued by the Pass Through
Trusts formed to acquire, among other securities, the Certificates bearing a
particular Series and having a particular Maturity that will be issued under
the Indenture;
WHEREAS, on the Pass Through Closing Date, a closing will occur with
respect to the public offering of the Pass Through Certificates issued by each
Pass Through Trust, an allocable amount of the proceeds of which offering will
be used by the Pass Through Trustee to purchase for each such Pass Through
Trust the Certificates of the Series and Maturity applicable thereto, the
proceeds of which purchase in turn will be applied to the Refinancing in full
of the outstanding principal amount of the Original Loan Certificates;
WHEREAS, the Lessee, the Owner Participants, the Owner Trustee, the
Original Loan Participant and the Original Indenture Trustee have agreed,
subject to the terms and conditions hereinafter provided, to amend and
restate, and to add each of the Pass Through Trustee, the Indenture Trustee
and the Subordination Agent as a party to, the Original Participation
Agreement;
WHEREAS, concurrently with the execution and delivery hereof, (i)
Kredietbank N.V., acting through its New York Branch will enter into two
revolving credit agreements (each, a "Liquidity Facility"), one for the
benefit of the holders of Pass Through Certificates of each of the Pass
Through Trusts for the Series A Certificates and the Series B Certificates,
with the Subordination Agent, as agent for the Pass Through Trustee on behalf
of each such Pass Through Trust; and (ii) the Pass Through Trustee, each
Liquidity Provider and the Subordination Agent will enter into the
Intercreditor Agreement;
WHEREAS, the Certificates will be held by the Subordination Agent
pursuant to the Intercreditor Agreement on behalf of the Pass Through Trustee
for each of the Pass Through Trusts;
WHEREAS, the Lessee, the Owner Participants, the Owner Trustee, the
Original Loan Participant and the Indenture Trustee have agreed, to the extent
they are parties thereto and, subject to the terms and conditions hereinafter
provided, to amend and restate the Original Indenture, to amend and restate
the Original Lease, to amend and restate the Original Ancillary Agreement I,
to amend the Original Tax Indemnity Agreement and to amend and restate the
Original Trust Agreement, each such amendment and restatement to be executed
and delivered simultaneously with the purchase of the Certificates by the Pass
Through Trustee for the Pass Through Trusts and the Refinancing in full of the
Original Loan Certificates; and
NOW, THEREFORE, in consideration of the mutual covenants contained in
this Agreement and other good and valuable consideration, receipt of which is
hereby acknowledged, the parties hereto agree, subject to the terms and
conditions hereinafter provided, that the Original Participation Agreement be
and the same is hereby amended and restated in its entirety as follows:
ARTICLE 1
DEFINITIONS
Unless the context otherwise requires, the terms defined in Schedule
II hereto are incorporated herein for all purposes of this Agreement and shall
be equally applicable to both the singular and the plural forms of the terms
so defined.
ARTICLE 2
ISSUANCE OF PASS THROUGH CERTIFICATES;
REFUNDING THE ORIGINAL LOAN CERTIFICATES
Section 2.01. Transfer of Funds.
(a) On or before the Pass Through Closing Date, the Pass Through
Trustee and the Lessee, in accordance with the Pass Through Agreement, shall
enter into the Series Supplements, and, subject to the terms and conditions
set forth therein, on the Pass Through Closing Date (i) the Lessee shall
direct the Underwriters to execute a wire transfer or intra-bank transfer to
the Pass Through Trustee in the amount of the total proceeds payable pursuant
to the Underwriting Agreement with respect to the Pass Through Certificates
and (ii) the Pass Through Trustee shall deliver the Pass Through Certificates
to the Underwriters upon receipt by the Pass Through Trustee of such proceeds.
(b) Subject to the satisfaction or waiver of the conditions set
forth herein, on the Refunding Date the following events shall occur in the
order set forth below:
(i) the Lessee shall on behalf of the Owner Trustee execute a wire
transfer or intra-bank transfer in favor of the Agent (as a prepayment of
the portion of Basic Rent allocable to the period from the Closing Date
through the Refunding Date) in the amount of all accrued and unpaid
interest on the Original Loan Certificates to but excluding the Refunding
Date, which transfer shall constitute the payment of all such accrued and
unpaid interest;
(ii) the Lessee shall on behalf of the Owner Trustee execute a wire
transfer or intra-bank transfer in favor of the Agent as Supplemental Rent
in the amount of any Breakage Costs required to be paid pursuant to the
Original Indenture which transfer shall constitute the payment of all such
Breakage Costs;
(iii) for each Pass Through Trust, from an allocable amount of the
proceeds of the sale of the related Pass Through Certificates, the Pass
Through Trustee shall pay on behalf of the Owner Trustee in the manner
specified in paragraph (iv) below, an amount equal to the principal amount
of Certificates of the Series and Maturity that relates to such Pass
Through Trust, which amounts in the aggregate shall equal the aggregate
principal amount of the Certificates as specified in Section 2.04 of the
Indenture;
(iv) the aggregate amount payable by the Pass Through Trustee pursuant
to paragraph (iii) above shall be payable by wire transfer or intra-bank
transfer in favor of the Agent on behalf of the Owner Trustee in the amount
of the outstanding principal amount of the Original Loan Certificates;
(v) the Agent shall apply the amounts received by it under paragraphs
(i), (ii) and (iv) of this subsection (b) to prepay the Original Loan
Certificates in full in accordance with Sections 2.06 and 2.10 of the
Original Indenture; and
(vi) the Owner Trustee shall cause the Certificates to be delivered
to the applicable Pass Through Trustee in accordance with Section 2.02
hereof.
On the Refunding Date concurrently with the events specified in
clauses (iii) through (v) of this Section 2.01(b), the parties hereto shall
execute and deliver, to the extent they are parties thereto, and consent to
the execution and delivery of (if they are not a party thereto), the
Indenture, the Lease and the Trust Agreement, and the Owner Trustee shall
execute and deliver to the Indenture Trustee for authentication, and the
Indenture Trustee shall authenticate and deliver to the Subordination Agent on
behalf of the Pass Through Trustee for each of the Pass Through Trusts, upon
the request of the Owner Trustee, the Certificates as provided in Section 2.02
hereof. Each Owner Participant hereby requests and directs the Owner Trustee
to execute and deliver this Agreement and, subject to the terms hereof, to
take the actions specified herein. The Original Loan Participant by its
execution and delivery hereof, requests and directs the Indenture Trustee to
execute and deliver this Agreement and concurrently with the events specified
in clauses (iii) through (v) of this Section 2.01(b) and subject to the terms
and conditions hereof to take the actions contemplated herein. The parties
hereto, including, without limitation, the Original Loan Participant, confirm
that, as provided in Section 2.06 of the Original Indenture, upon payment in
full of the principal amount, Breakage Costs, if any, and interest on the
Original Loan Certificates and all other sums then payable to the Original Loan
Participant under the Original Agreements to the extent specified in
subsection (c) below, the Original Loan Participant shall have no further
interest in, or other right or obligation with respect to, the Trust Indenture
Estate, the Original Agreements or the Operative Agreements (it being
understood that the foregoing shall not limit or detract from any claim that
the Original Loan Participant may have under Article 8 or 9 or Section
10.01(a)(ii) hereof or of the Original Participation Agreement) and,
accordingly, have no obligation to, and will not attempt to direct any future
actions of the Indenture Trustee with respect to the Trust Indenture Estate,
provided that the rights and obligations of the Original Loan Participant
shall, until the payment in full of such amounts to the Agent on behalf of the
Original Loan Participant on the Refunding Date, be governed by the Original
Participation Agreement and the other Operative Agreements contemplated
thereby or in effect immediately prior to the effectiveness of this Agreement
and shall, upon such payment and thereafter, be governed by this Agreement.
The Lessee hereby consents to the foregoing.
(c) Not less than three (3) Business Days prior to the Refunding
Date, the Agent on behalf of the Original Loan Participant shall give notice
in writing to the parties hereto of the principal amount, Breakage Costs, if
any, and interest on and all other amounts due on the Refunding Date under the
Original Loan Certificates and all other sums payable on the Refunding Date to
the Original Loan Participant under the Original Agreements, such notice to be
deemed final and binding on the Original Loan Participant as to the respective
amounts of principal, Breakage Costs, if any, and interest when given;
provided that the expected Refunding Date, at the time such notice is given,
is the same as the Refunding Date.
(d) On the Refunding Date, subject to (i) the giving of the written
notice referred to in Section 2.01(c) above to the Original Indenture Trustee
and the Original Loan Participant, (ii) the receipt by the Original Loan
Participant of the funds referred to in Section 2.01(b)(v) above and (iii)
compliance with the provisions of Article 15 of the Original Participation
Agreement and Section 2.10(c) of the Original Indenture (including the
Refinancing in full of the Original Loan Certificates), the Original Loan
Participant shall deliver the Original Loan Certificates to the Indenture
Trustee for cancellation and delivery to the Owner Trustee.
(e) The closing with respect to the acquisition of the Pass Through
Certificates by the Underwriters and the closing with respect to the
Refinancing of the Original Loan Certificates (together, the "Closings") shall
take place at the offices of Davis Polk & Wardwell, 450 Lexington Avenue, New
York, New York 10017.
(f) All payments pursuant to this Section 2.01 shall be made in
immediately available funds.
(g) In the event that the Refunding Date and the actions
contemplated to occur on such date pursuant to subsection (d) of this Section
2.01 do not occur on or before June 30, 1997, then the rights and obligations
of the parties to the Original Participation Agreement, including, without
limitation, the Original Loan Participant and the Original Indenture Trustee,
shall be governed by the Original Participation Agreement and the other
Operative Agreements contemplated thereby or in effect immediately prior to
the effectiveness of this Agreement and this Agreement shall be of no further
force and effect, except that the Lessee shall be obligated hereby to pay all
fees and expenses of the Original Loan Participant, the Original Indenture
Trustee, the Indenture Trustee, the Owner Participants, the Owner Trustee, the
Pass Through Trustee and their respective counsel relating to the transactions
contemplated hereby. Each of the parties hereto agrees to execute and deliver
to the other parties such documents and instruments as may be necessary to
give effect to the foregoing provisions of this subsection (g).
Section 2.02. Certificates. Subject to the satisfaction or waiver
of the conditions set forth herein, on the Refunding Date, the Owner Trustee
shall execute and deliver to the Indenture Trustee, and the Indenture Trustee
shall authenticate and deliver, upon the request of the Owner Trustee, to the
Subordination Agent on behalf of the Pass Through Trustee for each of the Pass
Through Trusts, the Certificate specified for such Pass Through Trust on
Schedule I attached hereto, which (i) shall be issued in the principal amount
and in the Series and Maturity set forth for such Certificate in Schedule I
hereto, (ii) shall bear interest at the interest rate set forth for such
Certificate in Schedule I hereto, (iii) shall be issued in such form and on
such terms as are specified in the Indenture, (iv) shall be dated and
authenticated on the Refunding Date and shall bear interest from the Refunding
Date and (v) shall be registered in the name of the Subordination Agent on
behalf of the Pass Through Trustee for such Pass Through Trust.
ARTICLE 3
EXTENT OF INTEREST OF ORIGINAL LOAN PARTICIPANT
Section 3.01. Extent of Interest of Original Loan Participant.
Delivery of the Original Loan Certificates by the Original Loan Participant to
the Indenture Trustee for cancellation on the Refunding Date shall be
conclusive evidence of receipt by the Original Loan Participant of all amounts
then due and payable to the Original Loan Participant in respect of principal
of, Breakage Costs, if any, and interest on the Original Loan Certificates
under the Original Agreements (it being understood that the foregoing shall
not limit or detract from any claim the Original Loan Participant may have
under Article 8 or 9 or Section 10.01(a)(ii) hereof or of the Original
Participation Agreement).
ARTICLE 4
CONDITIONS PRECEDENT
Section 4.01. Conditions Precedent. The obligations of the Owner
Trustee, each Owner Participant, the Lessee, the Indenture Trustee, the
Subordination Agent and the Pass Through Trustee on behalf of each Pass
Through Trust to participate in the transactions contemplated hereby on the
Refunding Date are subject to the fulfillment to the satisfaction of such
party (or waiver by such party), prior to or on the Refunding Date, of the
following conditions precedent (it being understood that receipt by the Lessee
of any of the following documents shall not be a condition precedent to the
obligations of any party):
(a) Certificates. On the Refunding Date, there shall have been duly
issued and delivered by the Owner Trustee to the Subordination Agent on
behalf of the Pass Through Trustee for each of the Pass Through Trusts,
against payment therefor, a Certificate, substantially in the form set
forth in Exhibit B to the Indenture, duly authenticated, dated the
Refunding Date and registered in the name of the Subordination Agent, in
the principal amounts, Series, Maturity, bearing the interest rate and the
other economic terms specified in the Series Supplements and otherwise as
provided in Section 2.04 of the Indenture. The Pass Through Certificates
shall be registered under the Securities Act, any applicable state
securities laws shall have been complied with, and the Pass Through
Agreement shall have been qualified under the Trust Indenture Act.
(b) Legal Investment. On the Refunding Date, no fact or condition
shall exist under applicable laws or regulations, or interpretations of any
such laws or regulations by applicable regulatory authorities, which, in
the opinion of such Owner Participant or its special counsel, the Pass
Through Trustee, the Subordination Agent or its special counsel or the
Indenture Trustee or its special counsel, would make it illegal for such
Owner Participant, the Lessee, the Owner Trustee, the Pass Through Trustee,
the Subordination Agent or the Indenture Trustee, and no change in
circumstances outside the control of such Owner Participant shall have
occurred which would otherwise make it illegal for such Owner Participant,
the Lessee, the Owner Trustee, the Pass Through Trustee, the Subordination
Agent or the Indenture Trustee, to participate in the transactions to be
consummated on the Refunding Date; and no action or proceeding shall have
been instituted nor shall governmental action before any court, governmental
authority or agency be threatened which in the opinion of counsel for such
Owner Participant, the Indenture Trustee, the Subordination Agent or the
Pass Through Trustee is not frivolous, nor shall any order have been issued
or proposed to be issued by any court, or governmental authority or agency,
as of the Refunding Date, to set aside, restrain, enjoin or prevent the
consummation of any of the transactions contemplated by this Agreement or
by any of the other Operative Agreements.
(c) Underwriters. The Underwriters shall have transferred the funds
specified in Section 2.01(a) hereof and all conditions thereunder shall
have been satisfied or waived.
(d) Refunding Documents. This Agreement and the following documents
shall have been duly authorized, executed and delivered by the respective
party or parties thereto, shall each be satisfactory in form and substance
to the Lessee, the Owner Trustee, the Indenture Trustee, the Pass Through
Trustee and each Owner Participant (each acting directly or by
authorization to its special counsel) and shall each be in full force and
effect; there shall not have occurred any default thereunder, or any event
which with the lapse of time or the giving of notice or both would be a
default thereunder, and copies executed or certified as requested by the
Lessee, the Owner Trustee, the Indenture Trustee, the Pass Through Trustee,
the Subordination Agent or any Owner Participant, as the case may be, of
such documents shall have been delivered to each Owner Participant, the
Lessee, the Indenture Trustee, the Pass Through Trustee, the Subordination
Agent and the Owner Trustee (provided that the sole chattel-paper original
of each of the Lease, the Lease Supplement and each Ancillary Agreement
amendatory of the Lease, shall be delivered to the Indenture Trustee):
(i) the Lease;
(ii) the Indenture;
(iii) in the case of the Owner Participants only, Amendment No. 1 to
the Original Tax Indemnity Agreement;
(iv) the Trust Agreement;
(v) the Ancillary Agreement I;
(vi) the Ancillary Agreement II;
(vii) the Owner Participant Guaranty;
(viii) the Intercreditor Agreement; and
(ix) the Liquidity Facility for each of the Pass Through Trusts for
the Series A Certificates and the Series B Certificates.
(e) Insurance. Each of the Indenture Trustee, the Pass Through
Trustee, the Owner Trustee and the Owner Participants shall have received
such evidence as it deems appropriate, including, without limitation, an
independent insurance broker's report, together with certificates of
insurance from such broker, in form and substance satisfactory to the
Indenture Trustee, the Pass Through Trustee, the Owner Trustee and the
Owner Participants to establish that the insurance required by Article 13
of the Lease is in effect.
(f) Financing Statements. (i) Uniform Commercial Code ("UCC")
financing statements covering all the security interests (and other
interests) created by or pursuant to the Granting Clause of the Original
Indenture shall have been executed and delivered by the Owner Trustee, as
debtor, and by the Indenture Trustee, as secured party, for and on behalf
of the Original Loan Participant, and such financing statements shall have
been duly filed in the State of Delaware; (ii) a form UCC-3 financing
statement to amend and restate each financing statement referred to in the
immediately preceding sentence shall have been executed and delivered by the
Owner Trustee, as debtor, and by the Indenture Trustee as secured party,
and a form UCC-1 financing statement covering all the security interests
(and other interests) created by or pursuant to the Granting Clause of the
Indenture shall have been executed and delivered by the Owner Trustee, as
debtor, and by the Indenture Trustee, as secured party, for and on behalf
of the Holders, and concurrently with the Refinancing of the Original Loan
Certificates such UCC-3 financing statement and UCC-1 financing statement
shall have been duly filed or duly submitted for filing in the State of
Delaware, and all other actions shall have been taken which, in the opinion
of special counsel for the Pass Through Trustee or for the Underwriters,
are necessary or desirable to maintain the perfection of the security
interest created by or pursuant to the Granting Clause of the Indenture;
(iii) a UCC notice filing describing the Original Lease as a lease shall
have been executed and delivered by the Owner Trustee, as lessor, and the
Lessee, as lessee (which filing shall name the Indenture Trustee as
assignee of the Owner Trustee), and shall have been duly filed in the State
of Tennessee; and (iv) a form UCC-3 financing statement to amend and
restate the UCC notice filing referred to in the immediately preceding
clause (iii) shall have been executed and delivered by the Owner Trustee,
as lessor, and by the Lessee, as lessee (which filing shall name the
Indenture Trustee as assignee of the Owner Trustee), and such notice filing
shall concurrently with the Refinancing of the Original Loan Certificates
have been duly filed in the State of Tennessee, and all other actions shall
have been taken which, in the opinion of the Owner Participants, Pass
Through Trustee and the Underwriters, are necessary to perfect and protect
such security interests and other interests created by or pursuant to the
Granting Clause of the Indenture.
(g) Corporate Documents. Except when such Person is the delivering
party, each Owner Participant, the Owner Trustee, the Original Loan
Participant, the Pass Through Trustee, the Lessee and the Indenture Trustee
(acting directly or by authorization to its counsel) shall have received
the following, in each case in form and substance satisfactory to it:
(i) a copy of the certificate of incorporation and by-laws of
the Lessee, certified by the Secretary or an Assistant Secretary of
the Lessee as of the Refunding Date, and a copy of the minutes of the
regular meeting of the board of directors of the Lessee, certified as
such as of the Refunding Date by such Secretary or Assistant
Secretary, duly authorizing the lease by the Lessee of the Aircraft
under the Lease and the execution, delivery and performance by the
Lessee of the Original Agreements to which it is a party, this
Agreement, the Lease, the Tax Indemnity Agreement, the Pass Through
Agreement, the Series Supplements, the other Operative Agreements to
which the Lessee is or is to be a party and each other document to be
executed and delivered by the Lessee in connection with the
transactions contemplated hereby;
(ii) a copy of the articles of incorporation or articles of
association, as the case may be, and bylaws of each Owner Participant
and the Owner Participant Guarantor, certified by the Secretary or an
Assistant Secretary of such Owner Participant or the Owner
Participant Guarantor as of the Refunding Date, and a copy of the
resolutions of the board of directors of each Owner Participant,
certified as such as of the Refunding Date by such Secretary or an
Assistant Secretary, authorizing the execution and delivery by such
Owner Participant of the Original Agreements to which it is a party,
this Agreement, the Tax Indemnity Agreement, the Trust Agreement and
the other Operative Agreements to which such Owner Participant is or
is to be a party and each other document to be executed and delivered
by such Owner Participant in connection with the transactions
contemplated hereby;
(iii) a copy of the articles of incorporation and by-laws and
other instruments of the Owner Trustee, certified by the Secretary or
an Assistant Secretary of the Owner Trustee as of the Refunding Date
(or other like instruments satisfactory to the Lessee and each Owner
Participant) and evidence authorizing the execution, delivery and
performance by the Owner Trustee in its individual capacity or as
Owner Trustee, as the case may be, of the Original Agreements to
which it is a party, this Agreement, the Trust Agreement and each of
the other Operative Agreements to which it is or is to be a party,
whether in its individual capacity or as Owner Trustee, and each
other document to be executed and delivered by the Owner Trustee in
connection with the transactions contemplated hereby;
(iv) a copy of the certificate of incorporation and by-laws
and other instruments of the Indenture Trustee, certified by the
Secretary or an Assistant Secretary of the Indenture Trustee as of
the Refunding Date (or other like instruments satisfactory to the
Lessee and each Owner Participant) and evidence authorizing the
execution, delivery and performance by the Indenture Trustee of each
of the Original Agreements to which it is party, this Agreement, the
Indenture and each of the other Operative Agreements to which it is
or is to be a party, and each other document to be executed and
delivered by the Indenture Trustee in connection with the transactions
contemplated hereby;
(v) a copy of the certificate of incorporation and by-laws
and other instruments of the Pass Through Trustee, certified by the
Secretary or an Assistant Secretary of the Pass Through Trustee as of
the Refunding Date (or other like instruments satisfactory to the
Lessee and each Owner Participant) and evidence authorizing the
execution, delivery and performance by the Pass Through Trustee of
this Agreement, the Pass Through Agreement, the Series Supplements
and each of the other Operative Agreements to which it is or is to be
a party, and each other document to be executed and delivered by the
Pass Through Trustee in connection with the transactions contemplated
hereby;
(vi) a copy of the articles of association and by-laws and
other instruments of the Subordination Agent, certified by the
Secretary or an Assistant Secretary of the Subordination Agent as of
the Certificate Closing Date (or other like instruments satisfactory
to the Lessee and the Owner Participant) and evidence authorizing the
execution, delivery and performance by the Subordination Agent of
this Agreement, the Intercreditor Agreement and each of the other
Operative Agreements to which it is or is to be a party, and each
other document to be executed and delivered by the Subordination
Agent in connection with the transactions contemplated hereby; and
(vii) such other documents, evidences, materials, and
information with respect to the Lessee, the Owner Trustee, the
Indenture Trustee, the Pass Through Trustee, the Owner Participants
and the Owner Participant Guarantor as the Indenture Trustee, the
Pass Through Trustee or the Owner Participants may reasonably request
in order to establish the consummation of the transactions
contemplated by this Agreement.
(h) Title, Airworthiness and Registration. On the Refunding Date,
the following statements shall be true, and each Owner Participant, the
Owner Trustee, the Pass Through Trustee and the Indenture Trustee shall
have received evidence from the Lessee reasonably satisfactory to each such
Person to the effect that:
(i) the Owner Trustee has good and marketable title to the
Aircraft, free and clear of Liens, except the rights of the Owner
Trustee and the Lessee under the Lease and the Lease Supplement
covering the Aircraft, the rights of the Indenture Trustee under the
Indenture and the beneficial interest of the Owner Participants
created by the Trust Agreement and the interest of the Holders
created by the Indenture and the Indenture and Security Agreement
Supplement covering the Aircraft;
(ii) the Aircraft has been duly certificated by the Aeronautics
Authority as to type and airworthiness in accordance with the terms
of the Operative Agreements;
(iii) the Lease, the Indenture and the Trust Agreement
concurrently with the Refinancing of the Original Loan Certificates
have been duly filed for recordation (or shall be in the process of
being so duly filed for recordation) with the Aeronautics Authority
pursuant to the Transportation Code; and
(iv) the Aircraft is registered in the name of the Owner
Trustee.
(i) Officer's Certificate of Lessee. On the Refunding Date, the
following statements shall be true, and each Owner Participant, the Owner
Trustee, the Pass Through Trustee and the Indenture Trustee shall have
received a certificate signed by the Vice President and Treasurer or any
other duly authorized officer of the Lessee, dated the Refunding Date,
stating that:
(i) the representations and warranties of the Lessee
contained in the Operative Agreements to which it is a party
(excluding the Tax Indemnity Agreement) and in any certificate
delivered pursuant hereto or thereto are true and correct on and as
of the Refunding Date as though made on and as of such date (except
to the extent that such representations and warranties relate solely
to an earlier date, in which case such certificate shall state that
such representations and warranties were true and correct on and as
of such earlier date);
(ii) except for the matters described (i) under "Legal
Proceedings" in the Lessee's Annual Report on Form 10-K for the
fiscal year ended May 31, 1996 (as updated by Note 7 to the financial
statements included in the Lessee's Quarterly Reports on Form 10-Q
for the fiscal quarters ended August 31, 1996, November 30, 1996 and
February 28, 1997) and (ii) in the Lessee's Current Reports on Form
8-K dated June 7, 1996, August 16, 1996 and March 4, 1997, as to
which such officer will make no certification concerning the
liability of the Lessee (if any), or the effect of any adverse
determination upon the consolidated financial condition, business or
operations of the Lessee, no material adverse change has occurred in
the financial condition, business or operations of the Lessee from
that shown in the audited financial statements of the Lessee as of
May 31, 1996 or the unaudited consolidated financial statements of
the Lessee as of February 28, 1997 and nothing has occurred which
will, in the judgment of such officer, materially adversely affect
the ability of the Lessee to carry on its business or to perform its
obligations under this Agreement and each other Operative Agreement
to which it is or is to be a party; and
(iii) no event has occurred and is continuing, or would result
from the purchase, sale, mortgage, or lease of the Aircraft, which
constitutes an Event of Loss (or event which with the passage of time
would become an Event of Loss) with respect to the Airframe or any
Engine, or a Default or an Event of Default under the Lease.
(j) Officer's Certificates of Owner Participants and Owner
Participant Guarantor. On the Refunding Date, the following statements
shall be true, and the Lessee, the Pass Through Trustee, the Owner Trustee
and the Indenture Trustee shall have received a certificate from (i) each
Owner Participant, signed by a duly authorized officer of such Owner
Participant dated the Refunding Date, stating that:
(i) the representations and warranties of such Owner
Participant contained in this Agreement, the Trust Agreement and any
other Operative Agreement to which it is a party and in any
certificate delivered pursuant hereto or thereto, are true and
correct on and as of the Refunding Date as though made on and as of
such date (except to the extent that such representations and
warranties relate solely to an earlier date, in which case such
certificate shall state that such representations and warranties were
true and correct on and as of such earlier date);
(ii) no Lessor's Liens attributable to such Owner Participant
exist; and
(iii) no event has occurred and is continuing which constitutes
or, with notice or lapse of time or both would constitute, due to any
action or inaction on the part of such Owner Participant, an
Indenture Event of Default other than an Indenture Event of Default
attributable to a Lease Event of Default;
and (ii) from the Owner Participant Guarantor, signed by a duly authorized
officer of the Owner Participant Guarantor dated the Refunding Date,
stating that the representations and warranties of the Owner Participant
Guarantor contained in the Owner Participant Guaranty and in any
certificate delivered at the closing pursuant thereto are true and correct
on and as of the Refunding Date as though made on and as of such date
(except to the extent that such representations and warranties relate
solely to an earlier date, in which case such certificate shall state that
such representations and warranties were true and correct on and as of such
earlier date).
(k) Other Officer's Certificates. On the Refunding Date, the
following statements shall be true, and the Lessee, the Pass Through
Trustee, the Owner Trustee, the Subordination Agent and the Indenture
Trustee shall have received a certificate from each of WTC and the Owner
Trustee (in the case of the Lessee, the Pass Through Trustee, the
Subordination Agent and the Indenture Trustee), FSB and the Indenture
Trustee (in the case of the Lessee, the Pass Through Trustee, the
Subordination Agent and the Owner Trustee), FSB and the Pass Through Trustee
(in the case of the Lessee, the Indenture Trustee, the Subordination Agent
and the Owner Trustee) and FSB and the Subordination Agent (in the case of
the Lessee, the Pass Through Trustee, the Indenture Trustee and the Owner
Trustee), signed by a duly authorized officer of WTC and FSB, respectively,
dated the Refunding Date, stating with respect to WTC and the Owner
Trustee, with respect to FSB and the Indenture Trustee, with respect to FSB
and the Pass Through Trustee or with respect to FSB and the Subordination
Agent, as the case may be, that:
(i) the representations and warranties of WTC in its
individual capacity and as Owner Trustee, of FSB in its individual
capacity and as Indenture Trustee, of FSB in its individual capacity
and as Pass Through Trustee or of FSB in its individual capacity and
as Subordination Agent contained in this Agreement, the Lease, the
Trust Agreement and the Indenture and in any certificate delivered
pursuant hereto or thereto are true and correct on and as of the
Refunding Date as though made on and as of such date (except to the
extent that such representations and warranties relate solely to an
earlier date, in which case such certificate shall state that such
representations and warranties were true and correct on and as of such
earlier date);
(ii) to the best of its knowledge, no event has occurred and is
continuing, which constitutes or which, but for the lapse of time or
the giving of notice, or both, would constitute, due to any action or
omission on the part of WTC in its individual capacity or as Owner
Trustee, of FSB in its individual capacity or as Indenture Trustee,
of FSB in its individual capacity or as Pass Through Trustee, an
Event of Default or an Indenture Event of Default or of FSB in its
individual capacity or as Subordination Agent, an Event of Default or
an Indenture Event of Default; and
(iii) there are no Lessor's Liens attributable to the Owner
Trustee or WTC and no Indenture Trustee's Liens.
(l) Legal Opinions. Each Owner Participant, the Agent, the Original
Loan Participant, the Underwriters, the Lessee, the Owner Trustee, the Pass
Through Trustee and the Indenture Trustee (acting directly or by
authorization to its special counsel) shall have received from the
following counsel their respective legal opinions in each case satisfactory
to each Owner Participant, the Agent, the Original Loan Participant, the
Underwriters, the Lessee, the Owner Trustee, the Pass Through Trustee or
the Indenture Trustee, as the case may be, as to scope and substance (and
covering such other matters as the recipient may reasonably request) and
dated the Refunding Date:
(i) George W. Hearn, Vice President - Law of the Lessee, in
the form of Exhibit A(1)(a) hereto and addressed to the Agent, the
Original Loan Participant, the Underwriters, the Owner Participants,
the Owner Trustee, the Pass Through Trustee, each Liquidity Provider
and the Indenture Trustee;
(ii) Winston & Strawn, special counsel for the Owner
Participants and the Owner Participant Guarantor, in the form of
Exhibit A(2)(a) hereto, Sotiroff & Abramczyk, P.C., counsel for
Comerica Leasing Corporation, in the form of Exhibit A(2)(b) hereto,
Gloria G. Freud, counsel for Comerica Bank, in the form of Exhibit
A(2)(c) hereto, and Judy L. VanOsdel, Senior Counsel for Norwest Bank
Minnesota, National Association, in the form of Exhibit A(2)(d)
hereto, each addressed to the Agent, the Original Loan Participant,
the Underwriters, the Owner Participants, the Indenture Trustee, the
Owner Trustee, the Pass Through Trustee, each Liquidity Provider and
the Lessee;
(iii) Ray, Quinney & Nebeker, special counsel for the Indenture
Trustee, in the form of Exhibit A(3) hereto and addressed to the
Agent, the Original Loan Participant, the Underwriters, the Owner
Participants, the Indenture Trustee, the Owner Trustee, the Pass
Through Trustee, each Liquidity Provider and the Lessee;
(iv) Daugherty, Fowler & Peregrin, special aviation counsel,
in the form of Exhibit A(4) hereto and addressed to the Agent, the
Original Loan Participant, the Underwriters, the Owner Participants,
the Indenture Trustee, the Owner Trustee, the Pass Through Trustee,
each Liquidity Provider and the Lessee;
(v) Morris, James, Hitchens & Williams, special counsel for
the Owner Trustee, in the form of Exhibit A(5) hereto and addressed
to the Agent, the Original Loan Participant, the Underwriters, the
Owner Participants, the Indenture Trustee, the Owner Trustee, the
Pass Through Trustee, each Liquidity Provider and the Lessee;
(vi) Davis Polk & Wardwell, special counsel for the Lessee, in
the form of Exhibit A(1)(b) hereto addressed to the Agent, the
Original Loan Participant, the Underwriters, the Owner Participants,
the Indenture Trustee, the Owner Trustee, the Pass Through Trustee,
each Liquidity Provider and the Lessee;
(vii) Ray, Quinney & Nebeker, special counsel for the Pass
Through Trustee and the Subordination Agent, in the form of Exhibit
A(6) hereto and addressed to the Agent, the Original Loan
Participant, the Underwriters, the Owner Participants, the Indenture
Trustee, the Owner Trustee, the Pass Through Trustee, each Liquidity
Provider and the Lessee; and
(vi) Johan Tyteca, Esq., manager of the Legal Department of
Kredietbank N.V., in the form of Exhibit A(7)(a) hereto, and Milbank,
Tweed, Hadley & McCloy, special counsel for the Liquidity Providers,
in the form of Exhibit A(7)(b) hereto, each addressed to the Pass
Through Trustee, the Subordination Agent, each Liquidity Provider and
the Lessee.
(m) No Indenture Event of Default. No Indenture Event of Default or
Indenture Default has occurred and is continuing.
(n) Event of Default; Default; Event of Loss. No Default or Event
of Default under the Lease or Event of Loss or event, which with the
passage of time or if continued unremedied or unaltered would constitute an
Event of Loss, shall have occurred or be in existence.
(o) Cancellation. Following the Refinancing of the Original Loan
Certificates, the Original Loan Certificates shall have been duly delivered
by the Original Loan Participant to the Indenture Trustee for cancellation
and delivery to the Owner Trustee.
(p) Other Agreements. The Lessee and the Pass Through Trustee shall
have entered into the Pass Through Agreement and the Series Supplements, all
conditions to the effectiveness of each thereof shall have been satisfied
or waived, and the Pass Through Certificates shall have been issued
pursuant to the Series Supplements. The Lessee and the Underwriters shall
have entered into the Underwriting Agreement, all conditions to the
effectiveness thereof shall have been satisfied or waived, and the Pass
Through Certificates shall have been delivered pursuant to the Underwriting
Agreement. All conditions to the effectiveness of each Liquidity Facility
shall have been satisfied or waived.
(q) Material Adverse Change. There shall not have occurred any
material adverse change in the consolidated financial condition, business
or operations of the Lessee from that set forth in its financial statements
as of February 28, 1997 referred to in Section 6.01(l) hereof.
Section 4.02. Opinion of Special Aviation Counsel. Promptly upon
the filing and, where appropriate, recording of the documents specified in
4.01(h)(iii) hereof, pursuant to the Transportation Code the Lessee shall
cause Special Aviation Counsel to deliver to each Owner Participant, the Owner
Trustee, the Pass Through Trustee and the Indenture Trustee an opinion as to
(i) the due recording of such documents and the documents identified in
Section 4.01(i) of the Original Participation Agreement and (ii), subject to
customary qualifications, the lack of any intervening documents with respect
to the Aircraft.
ARTICLE 5
CONDITIONS PRECEDENT TO LESSEE'S OBLIGATIONS
Section 5.01. Conditions Precedent to Lessee's Obligations. The
Lessee's obligation to participate in the transactions contemplated hereby is
subject to the conditions that, prior to or on the Refunding Date, the Lessee
shall have received the certificates and other documents which are referred to
in, or the opinions to be addressed to it under, as the case may be,
paragraphs (d), (g)(ii)-(v), (h)(ii)-(iv), (j), (k) and (l)(ii), (iii), (iv),
(v), (vi) and (vii) of Section 4.01 hereof and the Underwriters shall have
made available the amounts required to be paid by them pursuant to Section 2.01
hereof.
ARTICLE 6
LESSEE'S REPRESENTATIONS, WARRANTIES AND COVENANTS
Section 6.01. Lessee's Representations and Warranties. The Lessee
represents and warrants to each Owner Participant, the Owner Trustee (in its
individual capacity and as Owner Trustee), the Pass Through Trustee (in its
individual capacity and as Pass Through Trustee), each Liquidity Provider and
the Indenture Trustee (in its individual capacity and as Indenture Trustee)
that, on the date hereof and as of the Refunding Date:
(a) the Lessee is a corporation duly organized and validly existing
and is in good standing under the laws of the State of Delaware with its
principal place of business and chief executive office (as such terms are
used in Article 9 of the Uniform Commercial Code) in Memphis, Tennessee,
and is duly qualified to do business as a foreign corporation and is in
good standing in all jurisdictions in which it has intrastate routes, or
offices or major overhaul facilities or in which other activities of the
Lessee require such qualification;
(b) the Lessee has full power, authority and legal right to conduct
its business and operations as currently conducted and to own or hold under
lease its Properties and to enter into and perform its obligations under
this Agreement, the Original Agreements to which it is a party, the other
Operative Agreements to which it is a party, the Pass Through Agreement and
the Series Supplements (the "Lessee Documents");
(c) the Lessee is an "air carrier" within the meaning of the
Transportation Code and a holder of a certificate under Sections 41102(a)
and 41103 of the Transportation Code and a "citizen of the United States"
within the meaning of Section 40102(a)(15) of the Transportation Code
holding an "air carrier operating certificate" issued under Chapter 447 of
the Transportation Code for aircraft capable of carrying ten (10) or more
individuals or 6,000 pounds or more of cargo, and each such certificate is
in full force and effect;
(d) the Lessee possesses all necessary certificates, franchises,
licenses, permits, rights and concessions and consents (collectively
"permits") which are material to the operation of the routes flown by it
and the conduct of its business and operations as currently conducted and
each such permit is in full force and effect;
(e) the execution, delivery and performance of the Lessee Documents
by the Lessee have been duly authorized by all necessary corporate action
on the part of the Lessee and do not require any stockholder approval, or
approval or consent of any trustee or holder of any indebtedness or
obligations of the Lessee, and each such document has been duly executed
and delivered by the Lessee and constitutes the legal, valid and binding
obligations of the Lessee enforceable against it in accordance with the
terms thereof except as such enforceability may be limited by bankruptcy,
insolvency, moratorium, reorganization or other similar laws or equitable
principles of general application to or affecting the enforcement of
creditors' rights generally (regardless of whether enforceability is
considered in a proceeding in equity or at law);
(f) no authorization, consent or approval of or other action by, and
no notice to or filing with, any United States federal or state
governmental authority or regulatory body (other than the SEC) is required
for the execution, delivery or performance by the Lessee of the Lessee
Documents or for the use and maintenance of the Aircraft except for such
registrations, applications and recordings referred to in the opinions of
Special Aviation Counsel delivered or to be delivered pursuant to Sections
4.01(l)(iv) and 4.02 hereof and except for the filings referred to in
Section 4.01(f) hereof, all of which shall have been duly obtained or made
and shall be in full force and effect on and as of the Refunding Date or as
contemplated by said Sections;
(g) neither the execution, delivery or performance by the Lessee of
the Lessee Documents nor compliance with the terms and provisions hereof or
thereof, conflicts or will conflict with or results or will result in a
breach or violation of any of the terms, conditions or provisions of, or
will require any consent or approval under, any law, governmental rule or
regulation or the charter documents, as amended, or bylaws, as amended, of
the Lessee or any order, writ, injunction or decree of any court or
governmental authority against the Lessee or by which it or any of its
Properties is bound or any indenture, mortgage or contract or other
agreement or instrument to which the Lessee is a party or by which it or
any of its Properties is bound, or constitutes or will constitute a default
thereunder or results or will result in the imposition of any Lien upon any
of its Properties;
(h) there are no pending or, to the knowledge of the Lessee,
threatened actions, suits, investigations or proceedings (whether or not
purportedly on behalf of the Lessee) against or affecting the Lessee or any
of its Property before or by any court or administrative agency which (A)
involve the Aircraft, (B) except for the matters described (i) under "Legal
Proceedings" in the Lessee's Annual Report on Form 10-K for the fiscal year
ended May 31, 1996 (as updated by Note 7 to the financial statements
included in the Lessee's Quarterly Reports on Form 10-Q for the fiscal
quarters ended August 31, 1996, November 30, 1996 and February 28, 1997)
and (ii) in the Lessee's Current Reports on Form 8-K dated June 7, 1996,
August 16, 1996 and March 4, 1997, as to which no representation is made
concerning the Lessee's liability (if any) or the effect of any adverse
determination upon the consolidated financial condition, business or
operations of the Lessee, if adversely determined, would materially and
adversely affect the consolidated financial condition, business or
operations of the Lessee, or (C) if adversely determined would adversely
affect the ability of the Lessee to perform its obligations under the
Lessee Documents;
(i) the Lessee has filed or caused to be filed all tax returns which
are required to be filed and has paid or caused to be paid all taxes shown
to be due and payable pursuant to such returns or pursuant to any
assessment received by the Lessee (other than assessments the payment of
which is being contested in good faith by the Lessee by appropriate
proceedings that do not involve any material danger of sale, forfeiture or
loss of the Aircraft or any part thereof), and the Lessee has no knowledge
of any related actual or proposed deficiency or additional assessment which
either in any case or in the aggregate would materially adversely affect
the Lessee's consolidated financial condition (other than, in any such case,
assessments, the payment of which is being contested in good faith by the
Lessee, as to which no representation is made concerning the Lessee's
liability (if any) or the effect of any adverse determination upon the
Lessee's consolidated financial condition);
(j) except for (A) the filing with and, where appropriate,
recordation pursuant to the Transportation Code of the Indenture, the Trust
Agreement and the Lease, (B) the filing of the financing statements
referred to in Section 4.01(f) hereof and (C) the taking of possession by
the Indenture Trustee of the original counterpart of the Lease and
maintaining possession of the original counterpart of the Lease Supplement
delivered on the Delivery Date, no further action, including any filing or
recording of any document, is necessary or advisable in order (i) to
establish the Owner Trustee's title to and interest in the Aircraft and the
Lessor's Estate as against the Lessee and any third parties, or (ii) to
perfect the first security interest in and mortgage Lien on the Trust
Indenture Estate in favor of the Indenture Trustee;
(k) on the Delivery Date, the Owner Trustee received good and
marketable title to the Aircraft, free and clear of all Liens, except the
rights of the Owner Trustee and the Lessee under the Original Lease, the
rights of the Indenture Trustee under the Original Indenture, the
beneficial interest of the Owner Participants created by the Original Trust
Agreement and the interest of the Original Loan Participant created by the
Original Indenture and the Indenture and Security Agreement Supplement
covering the Aircraft;
(l) the Lessee has heretofore delivered to the Owner Participants
true and correct copies of the Lessee's Annual Report on Form 10-K for the
fiscal year ended May 31, 1996 and its Quarterly Reports on Form 10-Q for
the fiscal quarters ended August 31, 1996, November 30, 1996 and February
28, 1997, and of the audited consolidated balance sheet of the Lessee for
the fiscal year ended May 31, 1996 and the unaudited consolidated balance
sheets of the Lessee as of August 31, 1996, November 30, 1996 and February
28, 1997, and the related consolidated statements of income, changes in
common stockholders' investment and cash flows for the fiscal year and
interim reporting periods ended on such dates, accompanied (except in the
case of such interim reporting periods) by a report thereon containing
opinions without qualification, except as therein noted, by Arthur Andersen
LLP, independent public accountants; said financial statements have been
prepared in accordance with generally accepted accounting principles
consistently applied and present fairly the financial position of the
Lessee as of such dates and the results of its operations and cash flows
for such periods and such Annual Report, Quarterly Reports and financial
statements did not, as of their respective dates of filing with the SEC,
contain any untrue statement of a material fact or omit a material fact
necessary to make the statements contained therein not misleading;
(m) with respect to ERISA:
(i) none of the Pension Plans (as hereinafter defined) nor
their related trusts have been terminated in a distress termination
pursuant to Section 4041(c) of ERISA or by the PBGC (as hereinafter
defined) pursuant to Section 4042 of ERISA, nor have any actions been
taken to so terminate any Pension Plan or related trust and neither
the Lessee nor any ERISA Affiliate (as hereinafter defined) has
incurred or could reasonably be expected to incur any material
liability with respect to a Pension Plan under Section 4062, 4063,
4064 or 4069 of ERISA;
(ii) there have been no "reportable events" (as such term is
defined in Section 4043(b) of ERISA) with respect to any Pension Plan
which have resulted or could reasonably be expected to result in any
material liability of the Lessee or any ERISA Affiliate;
(iii) no "accumulated funding deficiency" (as such term is
defined in Section 302 of ERISA or Section 412 of the Code) exists
with respect to any Pension Plan, whether or not waived, nor has any
request for a waiver under Section 412(d) of the Code been, or is
reasonably likely to be, filed with respect to any of the Pension
Plans;
(iv) neither the Lessee nor any ERISA Affiliate has failed to
make any contribution or payment to any Pension Plan which has
resulted or could reasonably be expected to result in the imposition
of a Lien under Section 302(f) of ERISA or Section 412(n) of the Code;
(v) all Pension Plans are in compliance in all material
respects with all applicable provisions of ERISA and the Code;
(vi) neither the Lessee nor any ERISA Affiliate has incurred
or is reasonably likely to incur any material withdrawal liability
pursuant to Section 4201 or 4204 of ERISA or any material liability
under Section 515 of ERISA;
(vii) to the best of the Lessee's knowledge, neither the Lessee
nor any ERISA Affiliate has engaged in a "prohibited transaction"
(within the meaning of Section 4975 of the Code or Section 406 of
ERISA) which could reasonably be expected to subject the Lessee to
the tax or penalties on prohibited transactions imposed by Section
4975 of the Code or Section 502 of ERISA; and
(viii) assuming the truth of the representations contained in
Section 7.09 hereof and compliance with Section 10.06 of the
Indenture, the execution and delivery of this Agreement and the other
Operative Agreements and the consummation of the transactions
contemplated hereby and thereby will not involve any transaction
which is prohibited by Section 406 of ERISA or in connection with
which a tax could be imposed pursuant to Section 4975 of the Code.
No part of the funds to be used by the Lessee in satisfaction of its
obligations under this Agreement or any other of the Operative
Agreements to which the Lessee is a party or to which the Lessee is
bound are the assets (within the meaning of ERISA and any applicable
rules and regulations) of any employee benefit plan subject to Title
I of ERISA, or any individual retirement account or an employee
benefit plan subject to Section 4975 of the Code.
As used in this Section 6.01(m), the term "Pension Plan" means an employee
pension benefit plan as defined in Section 3(2) of ERISA (other than a
multiemployer plan as defined in Section 4001(a)(3) of ERISA) which is
covered by Title IV of ERISA or subject to the minimum funding standards
under Section 412 of the Code and which is (or, solely for purposes of
clause (i) of this Section 6.01(m), within the preceding 5 calendar years
has been) maintained, or contributed to, by the Lessee or any ERISA
Affiliate; the term "PBGC" means Pension Benefit Guaranty Corporation and
any successor agency or instrumentality thereto; and the term "ERISA
Affiliate" means any entity which together with the Lessee would be treated
as a single employer under Section 414(b), (c), (m) or (o) of the Code;
(n) the Lessee is a Citizen of the United States;
(o) except for the filings referred to in Section 4.01(f) hereof, no
governmental approval of any kind is required of any Owner Participant or
for any Owner Participant's execution of or performance under this
Agreement or any agreement contemplated hereby by reason of any fact or
circumstance of the Lessee, the nature of the Aircraft or the Lessee's
proposed operations or use of the Aircraft;
(p) on the Refunding Date, all premiums with respect to the insurance
required to be provided by the Lessee on or prior to the Refunding Date
under Article 13 of the Lease have been paid by the Lessee;
(q) on the Refunding Date, all sales or use taxes relating to the
sale of the Aircraft by the Lessee to the Owner Trustee which are then or
were theretofore due shall have been paid;
(r) the Lessee is not in default under any mortgage, deed of trust,
indenture, lease or other instrument or agreement to which the Lessee is a
party or by which it or any of its Properties or assets may be bound, or in
violation of any applicable law, which default or violation would have a
material adverse effect on the financial condition, business or operations
of the Lessee or its ability to perform any of its obligations under the
Lessee Documents;
(s) no Default or Event of Default or Event of Loss or event, which
with the passage of time or if continued unremedied or unaltered would
constitute an Event of Loss, has occurred or exists;
(t) the Aircraft has been duly certificated by the FAA as to type and
airworthiness; there is in effect with respect to the Aircraft a current
and valid airworthiness certificate issued by the FAA pursuant to the
Transportation Code; and there is no fact known to the Lessee which
materially adversely affects the value, utility or condition of the
Aircraft;
(u) neither the Lessee nor any subsidiary of the Lessee is an
"investment company" or a company "controlled by an investment company"
within the meaning of the Investment Company Act of 1940, as amended;
(v) the Aircraft is fully equipped to operate in commercial service
and will comply with all governmental requirements governing such service;
(w) on the Refunding Date, the Lessee shall not be in material
default in the performance of any term or condition of the Engine Warranty
Assignment, the Modification Agreement and the GTA;
(x) there are no broker's or underwriter's fees payable on behalf of
the Lessee in connection with the transactions contemplated in the Operative
Agreements other than those of the Underwriters and First Chicago Leasing
Corporation referred to in Article 10 hereof; and
(y) the representations and warranties of the Lessee set forth in the
Original Agreements to which it is a party were correct on and as of the
Delivery Date (except to the extent such representations expressly related
solely to a specified earlier date, in which case such warranties and
representations were correct on and as of such earlier date).
Section 6.02. Offering by Lessee. The Lessee represents and
warrants that it has authorized no one to act on its behalf in connection with
the offer or sale of any interest in the Lessor's Estate or the Trust
Agreement other than First Chicago Leasing Corporation. Neither the Lessee
nor, based on representations of First Chicago Leasing Corporation, anyone
acting on its behalf has directly or indirectly offered any interest in the
Lessor's Estate or the Trust Agreement, or similar interests, for sale to, or
solicited any offer to acquire any of the same from, anyone other than the
Owner Participants and no more than 6 other institutional investors.
Section 6.03. Certain Covenants of Lessee. The Lessee covenants and
agrees with each Owner Participant, the Owner Trustee (in its individual
capacity and as Owner Trustee), the Pass Through Trustee (in its individual
capacity and as Pass Through Trustee) and the Indenture Trustee (in its
individual capacity and as Indenture Trustee) as follows:
(a) The Lessee will cause to be done, executed, acknowledged and
delivered at the Lessee's cost and expense all such further acts,
conveyances and assurances as the Owner Trustee, the Indenture Trustee, the
Pass Through Trustee or any Owner Participant shall reasonably require for
accomplishing the purposes of this Agreement, the Trust Agreement, the
Indenture, the Tax Indemnity Agreement, the Lease and the other Operative
Agreements to which it is a party. Without limiting the generality of this
Section 6.03(a), the Lessee will promptly take, or cause to be taken, at
the Lessee's cost and expense, such action with respect to the recording,
filing, re-recording and re-filing of the Indenture, each Indenture and
Security Agreement Supplement, the Lease, each Lease Supplement and any
financing statements or other instruments as may be necessary or requested
by the Indenture Trustee to maintain the perfection of the first security
interest and the Lien created by the Indenture, and the Owner Trustee's
title to and interest in the Aircraft and the Lessor's Estate as against
the Lessee and any third parties or if the Lessee cannot take, or cause to
be taken, such action, will furnish to the Indenture Trustee and the Owner
Trustee timely notice of the necessity of such action, together with such
instruments, in execution form, and such other information as may be
required to enable either of them to take such action at the Lessee's cost
and expense in a timely manner.
(b) The Lessee shall maintain the certificates referred to in Section
7.01 of the Lease and shall cause the Aircraft to remain duly registered,
in the name of the Owner Trustee, under the Transportation Code; provided,
however, that the Owner Participants, the Owner Trustee and the Indenture
Trustee agree that, so long as no Default or Event of Default shall have
occurred and be continuing, if, at any time after the eighth anniversary of
the Delivery Date, the Lessee has requested their consent to the
registration of the Aircraft in the name of the Owner Trustee (or, if
appropriate, in the name of the Lessee or a sublessee as a "lessee" or a
"sublessee"), at the Lessee's expense, in a country listed in Schedule III
hereto with which the United States then maintains normal diplomatic
relations, the Owner Participants, the Owner Trustee and the Indenture
Trustee, upon receipt by each Owner Participant, the Owner Trustee and the
Indenture Trustee of the assurances and opinion described below, shall not
unreasonably withhold their consent to such change in registration (it
being agreed, without limitation, that the inability of the Lessee to
deliver such assurances and opinion shall constitute reasonable grounds to
withhold such consent).
As a condition to any change in the registration of the Aircraft,
each Owner Participant, the Owner Trustee in its individual and trust
capacities, and the Indenture Trustee shall have received, all at the Lessee's
cost and expense:
(i) assurances satisfactory to them:
(A) to the effect that the insurance provisions of the Lease
have been and will be complied with and are and shall be in full
force and effect upon such change of registry;
(B) that the Owner Trustee's right, title and interest in and
to the Aircraft is recognized and fully enforceable in the new
jurisdiction of registry and that the new jurisdiction of registry
will give effect to the title and registry of the Aircraft therein
substantially to the same extent as does the Government;
(C) that such new country of registry (x) would provide
substantially equivalent protection for the rights of owner
participants, lessors or lenders in similar transactions as provided
under United States law (except that, in the absence of restrictions
under the laws of such country on rights and remedies of lessors and
secured parties similar to those imposed by Sections 362 and 363 of
the Bankruptcy Code, rights and remedies similar to those available
under Section 1110 of the Bankruptcy Code shall not be required), and
(y)(i) if such change in registration is made at the request of the
Lessee or an Affiliate thereof, imposes maintenance standards at
least comparable to those of the FAA, and (ii) if such change in
registration is made in connection with a sublease permitted under
Section 7.02(a)(i) of the Lease, imposes maintenance standards in
conformity with those set forth in Section 7.02(a)(i) of the Lease;
(D) that import and export certificates and any exchange
permits necessary to allow all Rent and other payments provided for
under the Lease, if required, shall have been procured at the
Lessee's own cost and expense by the Lessee;
(E) that duties and tariffs, if applicable, shall have been
paid for by the Lessee;
(F) to the effect that the original indemnities (and any
additional indemnities for which the Lessee is then willing to enter
into a binding agreement to indemnify) in favor of the Owner
Participants, the Owner Trustee (in its individual capacity and as
trustee under the Trust Agreement), the Indenture Trustee (in its
individual capacity, and as trustee under the Indenture), the Pass
Through Trustee (in its individual capacity, and as trustee under the
Pass Through Agreement) and the other Indemnitees under this
Agreement, the Indenture, the Pass Through Agreement and (in the case
of the Owner Participants only) the Tax Indemnity Agreement, afford
each such party substantially the same protection as provided prior
to such change of registry and if the sublessee, if any, is a
government or governmental body, such sublessee shall have
effectively waived any rights to sovereign immunity;
(G) that such change will not result in the imposition of, or
increase in the amount of, any Tax for which the Lessee is not
required to indemnify the Owner Participants, the Indenture Trustee,
the Owner Trustee (or any successor, assign or Affiliate thereof) and
the Trust Estate pursuant to Article 8 hereof or for which the Lessee
has not agreed to indemnify such parties in a manner satisfactory to
such parties;
(H) of the payment by the Lessee of any reasonable fees and
expenses of the Owner Participants, the Owner Trustee, the Indenture
Trustee and the Pass Through Trustee in connection with such change of
registry, including any reasonable attorneys' fees and expenses;
(I) that the Lessee shall maintain the registration of the
Aircraft under the laws of such country unless and until the
registration of the Aircraft is changed as provided herein, and shall
cause to be done at all times all other acts (including, if
applicable, the filing, recording and delivery of any document or
instrument and the payment of any sum) necessary or, by reference to
prudent industry practice in such country, advisable in order to
create, preserve and protect the interests of the Lessor and the
Indenture Trustee as against the Lessee or any third parties in such
jurisdiction;
(J) as to the continuation of the Lien of the Indenture as a
first priority, duly perfected Lien on the Aircraft and the Trust
Indenture Estate, that all recordings and filings required to so
perfect the Lien of the Indenture have been duly effected, and that
no Liens (except Liens permitted under Section 6.01 of the Lease)
shall arise by reason of such registration; and
(K) that appropriate deregistration powers of attorney in
favor of the Owner Trustee and the Indenture Trustee have been
executed and delivered by the Lessee and any sublessee and, if
necessary or desirable for the effectiveness thereof, filed with the
relevant aeronautics authority;
(ii) a favorable opinion of counsel (reasonably satisfactory to the
Owner Trustee, the Indenture Trustee and each Owner Participant) in the new
jurisdiction of registry, addressed and reasonably satisfactory to such
parties in scope, form and substance, to the effect:
(A) that the terms (including, without limitation, the
governing law, service-of-process and jurisdictional-submission
provisions thereof) of the Lease and the Indenture are legal, valid,
binding and enforceable in such jurisdiction against the Lessee, any
sublessee, the Owner Trustee and the Indenture Trustee, respectively;
(B) that it is not necessary for the Owner Participants, the
Owner Trustee, the Indenture Trustee or the Pass Through Trustee to
register or qualify to do business or meet other requirements not
already met in such jurisdiction in connection with the registration
in the new jurisdiction (and the filing and/or recordation therein of
the Indenture or the Lease) and the exercise of any rights or
remedies with respect to the Aircraft pursuant to the Lease or the
Indenture or in order to maintain such registration and the Lien of
the Indenture;
(C) that the courts of such jurisdiction would provide
substantially equivalent protection to the Lessor, the Owner
Participants, the Pass Through Trustee and the Indenture Trustee as
provided under United States law (with the exception described in
paragraph (b)(i)(C)(x) of this Section 6.03) in respect of the
transactions contemplated hereby, including, without limitation, the
remedies provided in the Indenture and the Lease;
(D) that there is no tort liability of the beneficial owner,
record owner, lessor or mortgagee of an aircraft not in possession
thereof under the laws of such jurisdiction, other than such tort
liability which might have been imposed on such owner, lessor or
mortgagee under the laws of the United States or any state thereof
(it being understood that, in the event such latter opinion cannot be
given in a form satisfactory to the Owner Participants and the
Indenture Trustee, such opinion shall be waived, if insurance
reasonably satisfactory to each Owner Participant, the Indenture
Trustee and the Owner Trustee, in its individual capacity, is
provided, at the Lessee's expense, to cover such risk and the Lessee
undertakes to keep such insurance in full force and effect);
(E) that the laws of such jurisdiction (i) will not impair
the rights of the Lessor in and to the Aircraft and (ii) (unless the
Lessee shall have agreed to provide insurance reasonably satisfactory
to the Indenture Trustee and the Owner Participants covering the risk
of requisition of use of the Aircraft by the government of registry
of the Aircraft) require fair compensation by the government of such
jurisdiction payable in currency freely convertible into United
States dollars for the loss of use of the Aircraft in the event of
such requisition;
(F) that the Owner Trustee's title to the Aircraft is
recognized and fully enforceable in such jurisdiction, that such
jurisdiction will give effect to the title of the Aircraft therein
substantially to the same extent as does the Government, and that the
Lien of the Indenture shall continue as a first priority, duly
perfected lien on the Aircraft;
(G) as to the continuation of the Lien of the Indenture as a
first priority, duly perfected Lien on the Aircraft;
(H) that the rights of the Lessor in and to the Aircraft will
not be impaired in such new jurisdiction of registry; and
(I) to such further effect with respect to such other matters
as any Owner Participant, the Owner Trustee or the Indenture Trustee
may reasonably request.
(c) The Lessee shall promptly file any reports, or furnish to the
Owner Trustee and the Owner Participants such information as may be
required to enable the Owner Trustee and the Owner Participants timely to
file any reports required to be filed by the Owner Trustee as the Lessor
and the Owner Participants under the Lease with any governmental authority.
(d) The Lessee will cause the Special Aviation Counsel to file, and
where appropriate record, on the Refunding Date, the Lease, the Trust
Agreement and the Indenture. The following documents shall be filed and,
where appropriate, recorded on the Refunding Date with the Aeronautics
Authority in the following order of priority: first, the Trust Agreement,
second, the Indenture and third, the Lease with the Indenture attached
thereto.
(e) The Lessee will furnish to each Owner Participant, the Owner
Trustee and the Indenture Trustee annually after the execution of this
Agreement, by March 15 of each year, commencing with the year 1998, an
opinion, reasonably satisfactory to the Owner Participants and the
Indenture Trustee, of Special Aviation Counsel, or other counsel specified
from time to time by the Lessee acceptable to the Lessor and the Indenture
Trustee: (i) stating either (1) that in the opinion of such counsel such
action has been taken with respect to the recording, filing, re-recording
and re-filing of the Lease, the Indenture, the Trust Agreement, and any
supplements to any of them and any financing statements, continuation
statements or other instruments, and all other action has been taken, as is
necessary to maintain the Owner Trustee's title to and interest in the
Aircraft and the Lessor's Estate as against the Lessee and any third
parties and to maintain the perfection of the security interests created by
said documents and reciting the details of such action, or (2) that in the
opinion of such counsel no such action is necessary to maintain such title
or the perfection of such security interests; (ii) specifying all other
action which needs to be taken during the succeeding 14 months in order to
maintain such title and the perfection of such security interests (which
the Lessee agrees timely to take); and (iii) stating that the Owner Trustee
is the owner of legal title to the Aircraft, and the Aircraft is free and
clear of all Liens, except the security interest created by the Indenture
and such as are permitted by the Lease and the Indenture.
(f) The Lessee shall at all times maintain its corporate existence
except as permitted by Section 6.03(g) hereof and all of its rights,
privileges and franchises necessary in the normal conduct of its business,
except for any corporate right, privilege or franchise (i) that it
determines, in its business judgment, is no longer necessary or desirable
in the conduct of its business and (ii) the loss of which will not
materially adversely affect or diminish the rights of the Holders or any
Owner Participant or the ability of the Lessee to perform its obligations
under the Operative Agreements.
(g) The Lessee shall not enter into any merger or consolidation, or
convey, transfer or lease all or substantially all of its assets as an
entirety to any Person, unless the surviving corporation or Person which
acquires by conveyance, transfer or lease all or substantially all of the
assets of the Lessee as an entirety (i) is a domestic corporation organized
and existing under the laws of the United States or a political subdivision
thereof, (ii) is a Citizen of the United States, (iii) is a U.S. Air
Carrier, (iv) expressly assumes by an instrument in writing in form and
substance satisfactory to the Indenture Trustee, the Owner Trustee and each
Owner Participant all of the Lessee's obligations hereunder and under the
other Operative Agreements, and each other document contemplated hereby or
thereby and the Lessee delivers such instrument to the Indenture Trustee,
each Owner Participant and the Owner Trustee, (v) provides an opinion from
counsel to the Lessee which counsel shall be reasonably satisfactory to
each Owner Participant and the Indenture Trustee and which opinion shall be
reasonably satisfactory to each Owner Participant and the Indenture
Trustee, and an officer's certificate, each stating that such merger,
consolidation, conveyance, transfer or lease and the instrument noted in
clause (iv) above comply with this Section 6.03(g), that such instrument is
a legal, valid and binding obligation of, and is enforceable against, such
survivor or Person (except as such enforceability may be limited by
bankruptcy, insolvency, moratorium, reorganization or other similar laws or
equitable principles of general application to or affecting the enforcement
of creditors' rights generally), and that all conditions precedent herein
provided for relating to such transaction have been complied with, and (vi)
immediately after such merger, consolidation or conveyance, transfer or
lease, as the case may be, the surviving company is in compliance with all
of the terms and conditions of this Agreement and the Lease and each other
Operative Agreement and each other document contemplated hereby or thereby;
provided that no such merger, consolidation or conveyance, transfer or
lease shall be permitted if the same gives rise to a Default not capable of
cure within the applicable grace period therefor or an Event of Default.
Upon any consolidation or merger, or any conveyance, transfer or
lease of all or substantially all of the assets of the Lessee and the
satisfaction of the conditions specified in this Section 6.03(g), the
successor corporation formed by such consolidation or into which the Lessee
is merged or the Person 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 Lessee under this Agreement and the Lease and each other
Operative Agreement and any other document contemplated hereby and thereby
to which the Lessee is a party with the same effect as if such successor
corporation had been named as the Lessee herein and therein. No such
conveyance, transfer or lease of all or substantially all of the assets of
the Lessee as an entirety shall have the effect of releasing the Lessee or
any successor corporation which shall theretofore have become such in the
manner prescribed in this Section 6.03(g) from its liability hereunder or
under the other Operative Agreements. Nothing contained herein shall
permit any lease, sublease, or other arrangement for the use, operation or
possession of the Aircraft except in compliance with the applicable
provisions of the Lease.
(h) The Lessee agrees to give prompt written notice to each Owner
Participant, the Owner Trustee and the Indenture Trustee of any change in
the address of its chief executive office (as such term is used in Section
9-103(3) of the Tennessee Uniform Commercial Code) or of any change in its
corporate name.
(i) The Lessee agrees to furnish to each Owner Participant, the
Lessor and the Indenture Trustee:
(A) as soon as available, but in any event within one hundred
twenty (120) days after the end of each fiscal year of the Lessee, a
consolidated balance sheet as of the end of such fiscal year, and the
related consolidated statements of income, common stockholders'
equity, retained earnings and cash flows of the Lessee for the fiscal
year then ended as prepared and certified by the Lessee's independent
certified public accountants, including their opinion;
(B) within sixty (60) days after the end of the first, second
and third quarterly accounting periods in each fiscal year of the
Lessee, a consolidated balance sheet of the Lessee prepared by it as
of the close of the accounting period then ended, together with the
related consolidated statements of income, retained earnings and cash
flows for such accounting period certified by the chief accounting
officer or a financial vice president of the Lessee;
(C) promptly upon their general transmission, copies of all
regular and periodic reports furnished by the Lessee to its
stockholders;
(D) promptly after filing with the SEC, copies of the Lessee's
Annual Reports on Form 10-K (including all corresponding annual
reports to shareholders), Quarterly Reports on Form 10-Q and, if
requested, any registration statement or prospectus filed by the
Lessee with any securities exchange or with the SEC;
(E) promptly upon (and in any event within five (5) Business
Days after) any officer of the Lessee obtaining knowledge of any
condition or event which constitutes a Default or an Event of
Default, an officer's certificate specifying the nature and period of
existence thereof and what action the Lessee has taken or is taking
or proposes to take with respect thereto;
(F) promptly, notice of all legal or arbitral proceedings,
and of all proceedings by or before any governmental or regulatory
authority or agency, and of any material development in respect of
such legal or other proceedings affecting the Lessee, which in each
case specified above, if adversely determined, would, in the Lessee's
reasonable judgment, materially impair the ability of the Lessee to
perform its obligations under the Operative Agreements or consummate
the transactions contemplated hereby and thereby; and
(G) from time to time, such other financial information as the
Lessor, any Owner Participant or the Indenture Trustee may reasonably
request.
Concurrently with the delivery of the financial statements referred
to in clause (A) above, the Lessee shall deliver to the Lessor, each Owner
Participant, the Indenture Trustee and the Pass Through Trustee a certificate
of the Lessee, signed by any one of the President, the Chief Financial
Officer, the General Counsel, the Treasurer or the principal accounting
officer of the Lessee, stating that the signer, or an officer reporting to
same, is familiar with the relevant terms of this Agreement and the Lease and
the signer has reviewed, or has caused to be made under such Person's
supervision a review, of the activities of the Lessee and that, to the best of
his or her knowledge, there does not exist any Default or Event of Default or
if a Default or an Event of Default exists or did exist, specifying the nature
thereof, the period of existence thereof and what action the Lessee has taken
or proposes to take with respect thereto.
Section 6.04. Survival of Representations and Warranties. The
representations and warranties of the Lessee provided in Sections 6.01 and 6.02
hereof and in any other Operative Agreement shall survive the Closings
hereunder and the expiration or other termination of this Agreement and the
other Operative Agreements.
ARTICLE 7
OTHER PARTIES' REPRESENTATIONS, WARRANTIES AND COVENANTS
Section 7.01. Acquisitions and Offerings of Interests in Lessor's
Estate. (a) [Reserved]
(b) Owner Participant. Each Owner Participant severally (and not
jointly) represents and warrants that its interest in the Lessor's Estate and
the Trust Agreement was acquired by it for its own account and not with a view
to resale or distribution thereof; provided, however, that the disposition by
each Owner Participant of its interest in the Lessor's Estate and the Trust
Agreement shall, subject to the terms and provisions of Article 5 of the Trust
Agreement, at all times be within its control and the foregoing representation
shall neither expand nor limit such Owner Participant's right to transfer or
sell such interests pursuant to the terms of this Agreement. Each Owner
Participant severally (and not jointly) further represents and warrants that
neither it nor anyone else authorized to act on its behalf has directly or
indirectly offered any interest in the Lessor's Estate or the Trust Agreement,
or in any similar security, for sale to, or solicited any offer to acquire any
of the same from, anyone. Each Owner Participant severally (and not jointly)
further represents and warrants that neither it nor anyone authorized to act
on its behalf has made or will make any offer, solicitation or sale of any
interest in the Lessor's Estate or the Trust Agreement in violation of the
provisions of Section 5 of the Securities Act of 1933, as amended. No
representation in this Section 7.01(b) shall include any action or inaction
of the Lessee, First Chicago Leasing Corporation, the Subordination Agent, the
Underwriters or any Affiliate of any thereof whether or not purportedly on
behalf of the Owner Trustee, any Owner Participant or any of their Affiliates.
(c) Owner Trustee. The Owner Trustee represents and warrants, both
in its individual capacity and as trustee, that neither it nor anyone acting
on its behalf (i) has directly or indirectly offered or will directly or
indirectly offer any Certificates or any interest in the Lessor's Estate, or
in any similar security, for sale to, or solicited any offer to acquire any of
the same from anyone (other than an Owner Participant) and (ii) shall own
Certificates.
Section 7.02. Citizenship, Etc. (a) Generally. Each of the Owner
Trustee, in its individual capacity and as Trustee, and each Owner Participant
severally (and not jointly) represents and warrants that it is a Citizen of
the United States on the Refunding Date. If any Owner Participant or the
Owner Trustee in its individual capacity does not comply with the requirements
of this Section 7.02, the Owner Trustee, the Indenture Trustee and the Owner
Participants hereby agree that a Default or an Event of Default shall not be
deemed to have occurred and be continuing under the Lease due to
non-compliance by the Lessee with the registration requirements in the Lease
occasioned by the noncompliance of such Owner Participant or the Owner Trustee.
(b) Owner Trustee. The Owner Trustee, in its individual capacity,
covenants that if at any time it shall cease to be a Citizen of the United
States, it will resign immediately as the Owner Trustee if such citizenship is
necessary under the Transportation Code as in effect at such time or, if it is
not necessary under the Transportation Code as in effect at such time, if it
is informed in writing by the Lessee, the Indenture Trustee or any Owner
Participant that such lack of United States citizenship would have any adverse
effect on the Lessee, the Indenture Trustee, the Holders or any Owner
Participant. The Owner Trustee, in its individual capacity, further covenants
that if at any time it appears reasonably probable that it will cease to be a
Citizen of the United States based on information that is (i) known to a
Responsible Officer or (ii) generally known to the public, it will promptly so
notify, to the extent permitted by law, all parties to this Agreement.
(c) Owner Participant. Each Owner Participant severally (and not
jointly) agrees, solely for the benefit of the Lessee, the Pass Through
Trustee and the Indenture Trustee, that if at any time when the Aircraft is
registered or the Lessee proposes to register the Aircraft in the United
States (i) it shall fail to be a Citizen of the United States and the Aircraft
shall or would therefore become ineligible for registration in the name of the
Owner Trustee under the Transportation Code and regulations then applicable
thereunder, then such Owner Participant shall give notice thereof to the
Lessee, the other Owner Participant and the Indenture Trustee and shall (at
its own expense and without any reimbursement or indemnification from the
Lessee) promptly but in any event within a period of 15 days (x) effect a
voting trust or other similar arrangement, (y) transfer in accordance with the
terms of this Agreement and the Trust Agreement all its rights, title and
interest in and to such Trust Agreement, the Lessor's Estate and this
Agreement, or (z) take any other alternative action that would prevent any
deregistration, or maintain or permit the United States registration, of the
Aircraft; or (ii) it determines that there is a reasonable likelihood that it
will in the future fail to qualify as a Citizen of the United States, and the
Aircraft would as a result thereof become ineligible for registration in the
name of the Owner Trustee under the Transportation Code, then such Owner
Participant shall give notice of such determination to the Lessee, the other
Owner Participant and the Indenture Trustee and shall (at its own expense and
without reimbursement or indemnification from the Lessee and on such timetable
as shall be reasonable under the circumstances and consistent with its
obligations under this Section 7.02(c)) prepare such documentation and
establish such procedures as shall be required to effect the voting trust,
arrangements, transfer or other action referred to in the preceding clause (i)
in each case to be effective on the date upon which such Owner Participant
fails to qualify as a Citizen of the United States (but in no event later than
(10) Business Days after such date) so as to prevent any deregistration of and
to maintain or permit the registration of, the Aircraft. It is agreed that
each Owner Participant shall be severally (but not jointly) liable to pay
promptly on request (A) to each of the other parties hereto any damages
actually incurred by any such other party as the result of the representation
and warranty of such Owner Participant in the first sentence of Section
7.02(a) hereof proving to be untrue as of the Refunding Date; and (B) to the
Lessee, the other Owner Participant, the Indenture Trustee or the Pass Through
Trustee for any damages actually incurred by the Lessee, the other Owner
Participant, the Indenture Trustee and the Pass Through Trustee as a result of
such Owner Participant's failure to comply with its obligations pursuant to
the first sentence of this Section 7.02(c); provided, that, the foregoing
shall not restrict the Pass Through Trustee or the Indenture Trustee from
asserting against such Owner Participant any damages actually incurred by the
holders of any Pass Through Certificates. Each party hereto agrees, upon the
request and at the sole expense of the applicable Owner Participant, to
cooperate with such Owner Participant in making any filings required in order
for such Owner Participant to comply with its obligations under the provisions
of the first sentence of this Section 7.02(c), but without any obligation on
the part of such other party to take any action believed by it in good faith
to be burdensome to such party or adverse to its business interests.
Section 7.03. Representations, Warranties and Covenants of Owner
Participants. (a) Representations, Warranties and Covenants. In addition to
and without limiting its other representations and warranties provided for in
this Article 7, each Owner Participant severally (and not jointly) represents
and warrants that, on the date hereof:
(i) it is a corporation or national banking association, as the case
may be, duly organized and validly existing in good standing under the laws
of the State of Michigan or the United States of America, as the case may
be, and it has full corporate power, authority and legal right to carry on
its present business and operations, to own or lease its Properties and to
enter into and to carry out the transactions contemplated by the Original
Agreements to which it is a party, this Agreement, the Tax Indemnity
Agreement, and the Trust Agreement;
(ii) the execution, delivery and performance by it of the Original
Agreements to which it is a party, this Agreement, the Tax Indemnity
Agreement, and the Trust Agreement have been duly authorized by all
necessary action on its part and, assuming the accuracy of the Lessee's
representations in Section 6.01(o) hereof, do not require any governmental
approvals that would be required to be obtained by such Owner Participant;
(iii) based on the representations, warranties and covenants
contained in Sections 6.01(m)(viii), 6.02 and 7.09 hereof and compliance
with Section 10.06 of the Indenture, neither the execution, delivery or
performance by such Owner Participant of the Original Agreements to which
it is a party, this Agreement, the Tax Indemnity Agreement, and the Trust
Agreement nor compliance with the terms and provisions hereof or thereof,
conflicts or will conflict with or results or will result in a breach or
violation of any of the terms, conditions or provisions of, or will require
any consent or approval under any law, governmental rule or regulation
applicable to such Owner Participant, or the charter documents, as amended,
or bylaws, as amended, of such Owner Participant, or any order, writ,
injunction or decree of any court or governmental authority against such
Owner Participant, or by which it or any of its Properties are bound or any
indenture, mortgage or contract or other agreement or instrument to which
such Owner Participant is a party or by which it or any of its Properties
is bound, or constitutes or will constitute a default thereunder or results
or will result in the imposition of any Lien upon any of its Properties;
(iv) the Original Agreements to which it is a party, this Agreement,
the Tax Indemnity Agreement and the Trust Agreement have been or on the
Refunding Date will be duly executed and delivered by such Owner
Participant and constitute or on the Refunding Date will constitute the
legal, valid and binding obligation of such Owner Participant enforceable
against it in accordance with their terms except as such enforceability may
be limited by bankruptcy, insolvency, moratorium, reorganization or other
similar laws or equitable principles of general application to or affecting
the enforcement of creditors' rights (regardless of whether enforceability
is considered in a proceeding in equity or at law);
(v) it is not in default under any mortgage, deed of trust,
indenture, lease or other instrument or agreement to which such Owner
Participant is a party or by which it or any of its Properties may be
bound, or in violation of any applicable law, which default or violation
would have an adverse effect on the ability of such Owner Participant to
perform its obligations under the Original Agreements to which it is a
party, this Agreement and the other Operative Agreements to which it is or
is to be a party;
(vi) there are no pending or, to the knowledge of such Owner
Participant, threatened actions, suits, investigations or proceedings
against or affecting such Owner Participant or any of its Property before
or by any court or administrative agency which (A) involve the Aircraft or
(B) if adversely determined would adversely affect the ability of such
Owner Participant to perform its obligations under any of the Original
Agreements to which it is a party, this Agreement and the other Operative
Agreements to which it is or is to be a party;
(vii) neither the execution and delivery by it of the Original
Agreements to which it is a party, this Agreement or the other Operative
Agreements to which it is nor the performance of its obligations hereunder
or thereunder requires the consent or approval of or the giving of notice
to, the registration with, or the taking of any other action in respect of,
any governmental authority or agency that would be required to be obtained
or taken by such Owner Participant except for filings contemplated by this
Agreement;
(viii) no part of the funds to be used by it to acquire the interests
to be acquired by such Owner Participant under this Agreement constitutes
assets (within the meaning of ERISA and any applicable rules and
regulations) of any employee benefit plan subject to Title I of ERISA or of
any plan or individual retirement account subject to Section 4975 of the
Code;
(ix) it is a "U.S. Person" as defined in Section 7701(a)(30) of the
Code and is not a tax resident of another country and if it shall at any
time cease to be such a "U.S. Person" or shall become a tax resident of
another country, it shall furnish to each Certificate Holder an indemnity,
in form and substance reasonably satisfactory to such Certificate Holder,
for any Taxes that may be imposed on such Holder as a result of such Owner
Participant's failure to be such a "U.S. Person" or as a result of its
being a tax resident of another country, and such Owner Participant shall be
personally liable for any debt service to the extent that the receipt of
rentals is reduced by reason of any withholding Taxes that result from such
failure to be such a "U.S. Person" or from being a tax resident of another
country; and
(x) the representations and warranties of such Owner Participant
set forth in the Original Agreements to which it is a party were correct on
and as of the Delivery Date (except to the extent such representations
expressly related solely to a specified earlier date, in which case such
warranties and representations were correct on and as of such earlier date).
Notwithstanding the foregoing or anything else contained in this
Agreement, such Owner Participant makes no representation or warranty in this
Agreement with respect to laws, rules or regulations relating to aviation or
to the nature or use of the equipment owned by the Owner Trustee, other than
such laws, rules or regulations relating to the citizenship requirements of
such Owner Participant under applicable aviation law and the other matters set
forth in Section 7.02(c) hereof.
(b) Lessor's Liens. Each Owner Participant severally (and not
jointly) represents, warrants and covenants that there are no Lessor's Liens
attributable to it or any of its Affiliates and that there will not be any
Lessor's Lien attributable to it or any such Affiliate on the Refunding Date.
Each Owner Participant severally (and not jointly) agrees with and for the
benefit of the Lessee, the Indenture Trustee, the other Owner Participant, the
Owner Trustee and the Pass Through Trustee that such Owner Participant will,
at its own cost and expense, take such action as may be necessary (by bonding
or other appropriate actions, so long as neither the Lessee's operation and
use of the Aircraft nor the validity and priority of the Lien of the Indenture
is impaired) to duly discharge and satisfy in full, promptly and in any event
within 30 days after the same first becomes known to such Owner Participant,
any Lessor's Lien attributable to such Owner Participant or any such
Affiliate, provided, however, that such Owner Participant shall not be
required to discharge or satisfy such Lessor's Lien which is being contested
by such Owner Participant in good faith and by appropriate proceedings so long
as such proceedings do not involve any material danger of the sale, forfeiture
or loss of the Aircraft or the Lessor's Estate or the Trust Indenture Estate
or any interest in any thereof or otherwise materially adversely affect the
validity or priority of the Lien of the Indenture.
(c) Indemnity for Lessor's Liens. Each Owner Participant severally
(and not jointly) agrees to indemnify and hold harmless the Lessee, the other
Owner Participant, the Indenture Trustee and the Pass Through Trustee from and
against any loss, cost, expense or damage which may be suffered by the Lessee,
the Indenture Trustee or the Pass Through Trustee as the result of the failure
of such Owner Participant to discharge and satisfy any Lessor's Liens
attributable to such Owner Participant or any of its Affiliates and required
to be discharged as described in Section 7.03(b) hereof.
(d) Assignment of Interests of Owner Participants. Each Owner
Participant severally (and not jointly) agrees that it will not assign, convey
or otherwise transfer any of its right, title or interest in and to the
Operative Agreements or the Lessor's Estate except in accordance with the
provisions of Article 5 of the Trust Agreement, as in effect on the date
hereof or as amended in accordance with the terms of the Operative Agreements.
(e) Actions with Respect to Lessor's Estate, Etc. Each Owner
Participant severally (and not jointly) agrees that it will not take any
action to subject the Lessor's Estate or the trust established by the Trust
Agreement, as debtor, to the reorganization or liquidation provisions of the
Bankruptcy Code or any other applicable bankruptcy or insolvency statute.
Section 7.04. Representations, Covenants and Warranties of WTC and
the Owner Trustee. (a) In addition to and without limiting its other
representations and warranties provided for in this Article 7, WTC represents
and warrants, in its individual capacity with respect to items (i), (ii),
(iii)(A), (iv), (v), (vi) and (vii) below, and as the Owner Trustee with
respect to items (iii)(B) and (iv) that:
(i) it is a banking corporation duly organized and validly
existing in good standing under the laws of the State of Delaware with its
principal place of business and chief executive office (as such terms are
used in Article 9 of the Uniform Commercial Code) at 1100 North Market
Street, Rodney Square North, Wilmington, Delaware 19890-0001, Attention:
Corporate Trust Administration and has full corporate power and authority,
in its individual capacity or (assuming the Trust Agreement has been duly
authorized, executed and delivered by the Owner Participants) as the Owner
Trustee, as the case may be, to carry on its business as now conducted, and
to execute, deliver and perform this Agreement, the Original Agreements to
which it is a party and the Operative Agreements to which it is or is to be
a party;
(ii) the execution, delivery and performance by WTC, either in its
individual capacity or as the Owner Trustee, as the case may be, of this
Agreement, the Original Agreements and the Operative Agreements to which it
is or is to be party have been duly authorized by all necessary corporate
action on its part, and do not contravene its certificate of incorporation
or by-laws; each of this Agreement, the Original Agreements and the other
Operative Agreements to which it is or is to be a party has been duly
authorized, executed and delivered by WTC, either in its individual
capacity or as the Owner Trustee, as the case may be, and neither the
execution and delivery thereof nor WTC's performance of or compliance with
any of the terms and provisions thereof will violate any State of Delaware
or any political division thereof, or Federal law or regulation governing
WTC's banking or trust powers;
(iii)(A) assuming due authorization, execution and delivery by each
other party thereto, each of the Operative Agreements to which it is or is
to be party when duly executed and delivered will, and each of the Original
Agreements to which it is a party does, to the extent each such document is
entered into by WTC in its individual capacity, constitute the legal, valid
and binding obligation of WTC in its individual capacity enforceable
against it in such capacity in accordance with its respective terms, except
as such enforceability may be limited by bankruptcy, insolvency,
reorganization or other similar laws or equitable principles of general
application to or affecting the enforcement of creditors' rights
(regardless of whether enforceability is considered in a proceeding in
equity or at law), and the performance by WTC in its individual capacity of
any of its obligations thereunder does not contravene any lease, regulation
or contractual restriction binding on WTC in its individual capacity;
(B) assuming due authorization, execution and delivery by each other
party thereto, each of the Operative Agreements to which it is or is to be
party when duly executed and delivered will, and each of the Original
Agreements to which it is a party does, to the extent each such document is
entered into by the Owner Trustee in its trust capacity, constitute the
legal, valid and binding obligation of the Owner Trustee enforceable
against it in such capacity in accordance with its respective terms, except
as such enforceability may be limited by bankruptcy, insolvency,
reorganization or other similar laws or equitable principles of general
application to or affecting the enforcement of creditors' rights
(regardless of whether enforceability is considered in a proceeding in
equity or at law), and the performance by the Owner Trustee of any of its
obligations thereunder does not contravene any lease, regulation or
contractual restriction binding on the Owner Trustee;
(iv) there are no pending or, to its knowledge, threatened actions or
proceedings against WTC before any court or administrative agency which
would materially and adversely affect the ability of WTC, either in its
individual capacity or as the Owner Trustee, as the case may be, to perform
its obligations under the Operative Agreements to which it is or is to be
party;
(v) it shall give the Lessee, the Indenture Trustee and each Owner
Participant at least thirty (30) days' prior written notice in the event of
any change in its chief executive office or name;
(vi) neither the execution and delivery by it, either in its
individual capacity or as the Owner Trustee, as the case may be, of any of
the Original Agreements and the Operative Agreements to which it is or is
to be a party, requires on the part of WTC in its individual capacity or
any of its Affiliates the consent or approval of or the giving of notice
to, the registration with, or the taking of any other action in respect of,
any Federal or Delaware governmental authority or agency governing its
banking or trust powers;
(vii) on the Refunding Date the Owner Trustee shall be holding
whatever title to the Aircraft as was conveyed to it by the Lessee on the
Delivery Date, the Aircraft shall be free of Lessor's Liens attributable to
WTC in its individual capacity and WTC in its individual capacity and as
Owner Trustee is a Citizen of the United States; and
(viii) the representations and warranties of the Owner Trustee set
forth in the Original Agreements to which it is a party were correct on and
as of the Delivery Date (except to the extent such representations
expressly related solely to a specified earlier date, in which case such
warranties and representations were correct on and as of such earlier date).
(b) Lessor's Liens. WTC, in its individual capacity, further
represents, warrants and covenants that there are no Lessor's Liens
attributable to it in its individual capacity and that there will not be any
such Lessor's Liens on the Refunding Date. The Owner Trustee, in its trust
capacity, and at the cost and expense of the Lessee, covenants that it will in
its trust capacity promptly, and in any event within 30 days after the same
shall first become known to it, take such action as may be necessary to
discharge duly any Lessor's Liens attributable to it in its trust capacity.
WTC, in its individual capacity, covenants and agrees that it will at its own
expense take such action as may be necessary to duly discharge and satisfy in
full, promptly, and in any event within 30 days after the same shall first
become known to it, any Lessor's Liens attributable to it in its individual
capacity which may arise at any time after the date of this Agreement.
(c) Indemnity for Lessor's Liens. WTC, in its individual capacity,
agrees to indemnify and hold harmless the Lessee, the Indenture Trustee, any
Owner Participant, the Pass Through Trustee and the Owner Trustee from and
against any loss, cost, expense or damage which may be suffered by the Lessee,
the Indenture Trustee, any Owner Participant, the Pass Through Trustee or the
Owner Trustee as a result of the failure of WTC to discharge and satisfy any
Lessor's Liens attributable to it in its individual capacity, as described in
Section 7.04(b) hereof.
(d) Securities Act. None of WTC, the Owner Trustee or any Person
authorized by either of them to act on its behalf has directly or indirectly
offered or sold or will directly or indirectly offer or sell any interest in
the Lessor's Estate, or in any similar security relating to the Lessor's
Estate, or in any security the offering of which for purposes of the
Securities Act of 1933, as amended, would be deemed to be part of the same
offering as the offering of the aforementioned securities to, or solicited any
offer to acquire any of the same from, any Person.
(e) Actions With Respect to Lessor's Estate, Etc. Neither WTC, in
its individual capacity, nor the Owner Trustee will take any action to subject
the Lessor's Estate or the trust established by the Trust Agreement, as
debtor, to the reorganization or liquidation provisions of the Bankruptcy Code
or any other applicable bankruptcy or insolvency statute.
Section 7.05. Representations, Warranties and Covenants of the
Indenture Trustee. (a) The Indenture Trustee in its individual capacity
represents as follows:
(i) it is a national banking association duly organized and validly
existing in good standing under the laws of the United States of America
and has the power and authority to enter into and perform its obligations
under the Indenture, this Agreement and the other Operative Agreements to
which it is a party and to authenticate the Certificates to be delivered on
the Refunding Date;
(ii) the Indenture and this Agreement and the other Operative
Agreements to which it is or is to be a party, and the authentication of
the Certificates to be delivered on the Refunding Date, have been duly
authorized by all necessary corporate action on its part, and neither the
execution and delivery thereof nor its performance of any of the terms and
provisions thereof will violate any Federal or Utah law or regulation
relating to its banking or trust powers or contravene or result in any
breach of, or constitute any default under, its articles of association or
by-laws;
(iii) each of the Indenture and this Agreement and the other Operative
Agreements to which it is or is to be a party, has been duly executed and
delivered by it and, assuming that each such agreement is the legal, valid
and binding obligation of each other party thereto, is the legal, valid and
binding obligation of the Indenture Trustee, enforceable against the
Indenture Trustee in accordance with its terms except as such
enforceability may be limited by bankruptcy, insolvency, reorganization or
other similar laws or equitable principles of general application to or
affecting the enforcement of creditors' rights (regardless of whether
enforceability is considered in a proceeding in equity or at law); and
(iv) neither the execution and delivery by it of this Agreement and
the other Operative Agreements to which it is or is to be a party, nor the
performance by it of any of the transactions contemplated hereby or
thereby, requires the consent or approval of, the giving of notice to, the
registration with, or the taking of any other action in respect of, any
Federal or state governmental authority or agency governing its banking and
trust powers.
(b) Indenture Trustee's Liens. The Indenture Trustee, in its
individual capacity, further represents, warrants and covenants that there are
no Indenture Trustee's Liens attributable to it in its individual capacity and
that there will not be any Indenture Trustee's Liens on the Refunding Date.
The Indenture Trustee, in its individual capacity, covenants and agrees that
it will at its own expense take such action as may be necessary to duly
discharge and satisfy in full, promptly, and in any event within 30 days,
after the same shall first become known to it, any Indenture Trustee's Liens.
(c) Indemnity for Indenture Trustee's Liens. The Indenture Trustee,
in its individual capacity, agrees to indemnify and hold harmless the Lessee,
any Owner Participant, the Owner Trustee and the Pass Through Trustee from and
against any loss, cost, expense or damage which may be suffered by the Lessee,
the Indenture Trustee, any Owner Participant, the Owner Trustee or the Pass
Through Trustee as a result of the failure of the Indenture Trustee to
discharge and satisfy any Indenture Trustee's Liens attributable to it in its
individual capacity, as described in Section 7.05(b) hereof.
Section 7.06. Indenture Trustee's Notice of Default. The Indenture
Trustee agrees to give each Owner Participant notice of any Payment Default
promptly upon a Responsible Officer of the Indenture Trustee having actual
knowledge thereof.
Section 7.07. Releases from Indenture. The Indenture Trustee
covenants and agrees, for the benefit of the Lessee and each Owner
Participant, to execute and deliver the instruments of release from the Lien
of the Indenture which it is required to execute and deliver in accordance
with the provisions of Article XIV of the Indenture, and each Owner
Participant agrees, for the benefit of the Lessee, to cause the Owner Trustee
to request the Indenture Trustee to execute and deliver such instruments of
release.
Section 7.08. Covenant of Quiet Enjoyment. Each Owner Participant,
the Indenture Trustee, the Pass Through Trustee and the Owner Trustee
covenants and agrees as to itself only that, so long as no Event of Default
under the Lease has occurred and is continuing, neither such Owner Participant
(or the Owner Trustee, the Indenture Trustee or the Pass Through Trustee, as
the case may be) nor any Person lawfully claiming through such Owner
Participant (or the Owner Trustee, the Indenture Trustee or the Pass Through
Trustee, as the case may be) shall interfere with the Lessee's right to
quietly enjoy the Aircraft during the Term without hindrance or disturbance by
such Owner Participant (or the Owner Trustee, the Indenture Trustee or the
Pass Through Trustee, as the case may be), provided, however, that neither the
Owner Participants nor the Owner Trustee shall be liable for any act or
omission of the Indenture Trustee or the Pass Through Trustee or any other
Person claiming through the Indenture Trustee or the Pass Through Trustee.
Section 7.09. Original Loan Participant's, Original Indenture
Trustee's and Pass Through Trustee's Representations and Warranties. (a) The
Original Loan Participant represents and warrants that the representations and
warranties made by it in Sections 7.01(a) and 7.06 of the Original
Participation Agreement were correct on and as of the Delivery Date (except to
the extent such representations expressly related solely to a specified
earlier date, in which case such representations and warranties were correct
on and as of such earlier date).
(b) The Original Indenture Trustee represents and warrants that the
representations and warranties made by it in Section 7.05 of the Original
Participation Agreement were correct on and as of the Delivery Date (except to
the extent such representations expressly related solely to a specified
earlier date, in which case such representations and warranties were correct
on and as of such earlier date).
(c) The Pass Through Trustee, in its individual capacity (except
with respect to clause (iii) below), represents and warrants as of the date
hereof (except as otherwise provided), as of the Pass Through Closing Date and
as of the Refunding Date that:
(i) it is a national banking association duly organized and validly
existing in good standing under the laws of the United States of America
and has the power and authority to enter into and perform its obligations
under the Pass Through Agreement, the Series Supplements, the Intercreditor
Agreement and this Agreement and to execute and authenticate the Pass
Through Certificates to be delivered on the Pass Through Closing Date;
(ii) the execution, delivery and performance of this Agreement, the
Pass Through Agreement and the Series Supplements and the performance of its
obligations hereunder and thereunder (including the execution and
authentication of the Pass Through Certificates to be delivered on the Pass
Through Closing Date) have been fully authorized by all necessary corporate
action on its part, and, subject to (A) the registration of the issuance
and sale of the Pass Through Certificates under the Securities Act, (B)
compliance with any applicable state securities laws and (C) the
qualification of the Pass Through Agreement under the Trust Indenture Act,
neither the execution and delivery thereof nor its performance of any of
the terms and provisions thereof will violate any Federal or Utah law or
regulation relating to its banking or trust powers or contravene or result
in any breach of, or constitute any default under its articles of
association, or bylaws or the provisions of any indenture, mortgage,
contract or other agreement to which it is a party or by which it or its
properties may be bound or affected; and
(iii) each of this Agreement and the Pass Through Agreement has been,
and as of the Pass Through Closing Date the Series Supplements will be,
duly executed and delivered by it (in its individual and trust capacities)
and, assuming that each such agreement is the legal, valid and binding
obligation of each other party thereto, is or will be, as the case may be,
the legal, valid and binding obligation of the Pass Through Trustee (in its
individual and trust capacities), enforceable in accordance with its
respective terms except as limited by bankruptcy, insolvency, moratorium,
reorganization or other similar laws or equitable principles of general
application to or affecting the enforcement of creditors' rights generally
(regardless of whether such enforceability is considered in a proceeding in
equity or at law).
Section 7.10. Survival of Representations, Warranties and Covenants.
The representations, warranties and covenants of the Owner Trustee (in its
individual or trust capacity), the Pass Through Trustee (in its individual or
trust capacity), the Indenture Trustee (in its individual or trust capacity)
and the Subordination Agent (in its individual or trust capacity) provided for
in this Article 7, and their respective obligations under any and all of them,
shall survive the Closings and the expiration or other termination of this
Agreement, and the other Operative Agreements.
Section 7.11. Lessee's Assumption of the Certificates. (a) Subject
to compliance by the Lessee with all of its obligations under the Operative
Agreements, each of the Owner Participants, the Owner Trustee, the Indenture
Trustee, the Pass Through Trustee and the Lessee covenants and agrees that if
the Lessee elects to terminate the Lease and to purchase the Aircraft pursuant
to Section 4.02(a)(A), (D) or (E) of the Lease, and so long as no Default or
Event of Default shall have occurred and be continuing then, upon compliance
with the applicable provisions of said Section 4.02(a) of the Lease, the Owner
Trustee will transfer to the Lessee, without recourse or warranty (except as
to the absence of Lessor's Liens) but subject to the Lien of the Indenture,
all of the Owner Trustee's right, title and interest in and to the Aircraft,
and if the Lessee, in connection with such purchase, elects pursuant to
Section 4.02(a)(A), (D) or (E) of the Lease to assume the obligations of the
Owner Trustee to the Indenture Trustee and the Holders under the Indenture,
the Certificates and hereunder, then the Owner Trustee shall so notify the
Indenture Trustee (such notice to be given at least 30 and not more than 60
days prior to the effective date of such assumption), and each of the parties
shall execute and deliver appropriate documentation permitting the Lessee to
assume such obligations on the basis of full recourse to the Lessee,
maintaining for the benefit of the Holders the security interest in the
Aircraft created by the Indenture, and upon compliance with the provisions of
this Section 7.11, such documentation shall become effective and the Owner
Participants and the Owner Trustee shall be released from all obligations in
respect of the Certificates, the Indenture, this Agreement and all other
Operative Agreements, except any obligations which shall have arisen (or with
respect to events which shall have occurred) prior to such assumption, and
take all such other actions, at the Lessee's expense, as are reasonably
necessary to permit such assumption by the Lessee.
(b) In connection with such assumption:
(i) the Lessee shall execute and deliver an instrument satisfactory
in form and substance to the Indenture Trustee (A) pursuant to which the
Lessee irrevocably and unconditionally assumes and undertakes, with full
recourse to the Lessee, to pay, satisfy and discharge when and as due (at
the stated maturity thereof, by acceleration or otherwise) the principal
of, Make-Whole Premium, if any, interest and all other sums owing on all
Outstanding Certificates (or on the Lessee's substituted obligations) in
accordance with their terms and to punctually perform and observe all of
the covenants and obligations hereunder and under the Indenture and the
Certificates (as the same may be amended in connection with such
assumption) to be performed or observed by the Owner Trustee and (B) which
contains amendments to the Indenture, in form and substance satisfactory to
the Indenture Trustee and the Holders, that incorporate therein such
provisions from the Lease and this Agreement as may be appropriate,
including, without limitation, events of default substantially identical in
scope and effect to those set forth in the Lease and covenants
substantially identical to the covenants of the Lessee hereunder and under
the Lease;
(ii) the instrument referred to in paragraph (i) of this Section
7.11(b), any Uniform Commercial Code financing statements relating thereto,
and any other documents which shall be necessary (or reasonably requested
by the Indenture Trustee) to establish the Lessee's title to and interest
in the Aircraft or to reflect the substitution of the Lessee for the Owner
Trustee under the Operative Agreements or to continue the perfection of the
security interests in the Aircraft and the other rights, Property and
interests included in the Trust Indenture Estate for the benefit of the
Holders (or the Lessee's substituted obligations) shall be filed in such
form, manner and places as are necessary or, in the reasonable opinion of
the Indenture Trustee, advisable for such purpose;
(iii) the Indenture Trustee shall have received an insurance report
dated the effective date of such assumption of an independent insurance
broker and certificates of insurance, each in form and substance
satisfactory to the Indenture Trustee, as to the due compliance as of the
effective date of such assumption with the terms of Article 13 of the Lease
(as it relates to the Indenture Trustee) relating to the insurance with
respect to the Aircraft;
(iv) the Indenture Trustee shall have received evidence that as of
the effectiveness of the assignment on the date of such assumption the
Aircraft is free and clear of all Liens other than the Lien of the
Indenture and other Permitted Liens;
(v) the Indenture Trustee shall have received a certificate from the
Lessee that no Event of Default shall have occurred and be continuing as of
the effective date of such assumption; and
(vi) the Indenture Trustee shall have received (A) from counsel for
the Lessee (who may be the Lessee's General Counsel) a legal opinion, in
form and substance satisfactory to the Indenture Trustee (w) with respect
to the compliance of the assumption contemplated hereby with the terms,
provisions and conditions hereof, (x) with respect to the due
authorization, execution, delivery, validity and enforceability of the
instrument referred to in paragraph (i) of this Section 7.11(b), (y) with
respect to the continued perfection of the first and prior Lien and security
interest in the Aircraft for the benefit of the Holders of the Certificates
(or the Lessee's substituted obligations) referred to in paragraph (ii) of
this Section 7.11(b) and (z) with respect to the continued availability of
the benefits of Section 1110 of the Bankruptcy Code to the Indenture
Trustee for the benefit of the Holders with respect to the Aircraft after
giving effect to such assumption, (B) from counsel to the Indenture Trustee
and Special Aviation Counsel, a legal opinion comparable to the respective
opinions delivered on the Delivery Date with such changes therein as may be
appropriate in light of such assumption, and (C) in the case of each opinion
described in clause (A) or (B) above, covering such additional matters as
the Indenture Trustee shall reasonably request.
(c) The Lessee shall pay all reasonable expenses (including
reasonable fees and expenses of counsel) of the Indenture Trustee, the Owner
Trustee, the Pass Through Trustee and the Owner Participants in connection
with such assumption.
Section 7.12. Indebtedness of Owner Trustee. So long as the
Indenture is in effect, the Owner Trustee, not in its individual capacity, but
solely as trustee under the Trust Agreement, shall not incur any indebtedness
for borrowed money except as expressly contemplated herein or in any other
Operative Agreement (excluding the Tax Indemnity Agreement) and shall not
engage in any business or other activity other than the transactions
contemplated herein or in any other Operative Agreement (excluding the Tax
Indemnity Agreement) and all necessary or appropriate activity related thereto.
Section 7.13. Compliance with Trust Agreement, Etc. Each of the
Owner Participants, WTC and the Owner Trustee agrees with the Lessee, the
Indenture Trustee and the Pass Through Trustee that so long as the Lien of the
Indenture shall be in effect it will (i) comply with all of the terms of the
Trust Agreement applicable to it in its respective capacity, the noncompliance
with which would materially adversely affect any such party and (ii) not take
any action, or cause any action to be taken, to amend, modify or supplement
any other provision of the Trust Agreement in a manner that would adversely
affect such party without the prior written consent of such party. The Owner
Trustee confirms for the benefit of the Lessee, the Indenture Trustee and the
Pass Through Trustee that it will comply with the provisions of Article 2 of
the Trust Agreement. So long as the Lease or the Indenture remains in effect,
the Owner Participants agree with the Lessee, the Owner Trustee and the
Indenture Trustee not to terminate or revoke the trust created by the Trust
Agreement without the consent of the Lessee (except in connection with the
exercise of remedies pursuant to Article 17 of the Lease) or, if the Lien of
the Indenture shall not have been discharged, the Indenture Trustee. The
Owner Trustee and the Owner Participants agree that no co-trustee or separate
trustee shall be appointed pursuant to Section 3.14 of the Trust Agreement if
such appointment would adversely affect the priority of the Lien of the
Indenture. The Indenture Trustee agrees that it shall not take any action
under this Section 7.13 except as instructed pursuant to Section 8.01 of the
Indenture.
Section 7.14. Subordination Agent's Representations, Warranties and
Covenants. (a) Representations and Warranties. The Subordination Agent
represents and warrants as of the date hereof (except as otherwise provided)
that:
(i) it is a national banking association duly organized and validly
existing in good standing under the laws of the United States of America
and has the corporate power and authority to enter into and perform its
obligations under this Agreement, the Liquidity Facilities and the
Intercreditor Agreement;
(ii) the execution, delivery and performance of this Agreement, each
of the Liquidity Facilities and the Intercreditor Agreement and the
performance of its obligations hereunder and thereunder have been fully
authorized by all necessary corporate action on its part, and, neither the
execution and delivery thereof nor its performance of any of the terms and
provisions thereof will violate any Federal or Utah law or regulation
relating to its banking or trust powers or contravene or result in any
breach of, or constitute any default under its articles of association, or
bylaws or the provisions of any indenture, mortgage, contract or other
agreement to which it is a party or by which it or its properties may be
bound or affected;
(iii) each of this Agreement, the Liquidity Facilities and the
Intercreditor Agreement has been duly executed and delivered by it and,
assuming that each such agreement is the legal, valid and binding
obligation of each other party thereto, is or will be, as the case may be,
the legal, valid and binding obligation of the Subordination Agent,
enforceable in accordance with its respective terms except as limited by
bankruptcy, insolvency, moratorium, reorganization or other similar laws or
equitable principles of general application to or affecting the enforcement
of creditors' rights generally (regardless of whether such enforceability
is considered in a proceeding in equity or at law);
(iv) there are no Taxes payable by the Subordination Agent imposed by
the State of Utah or any political subdivision or taxing authority thereof
in connection with the execution, delivery and performance by the
Subordination Agent of this Agreement, any of the Liquidity Facilities or
the Intercreditor Agreement (other than franchise or other taxes based on
or measured by any fees or compensation received by the Subordination Agent
for services rendered in connection with the transactions contemplated by
the Intercreditor Agreement or any of the Liquidity Facilities), and there
are no Taxes payable by the Subordination Agent imposed by the State of
Utah or any political subdivision thereof in connection with the
acquisition, possession or ownership by the Subordination Agent of any of
the Certificates other than franchise or other taxes based on or measured
by any fees or compensation received by the Subordination Agent for
services rendered in connection with the transactions contemplated by the
Intercreditor Agreement or any of the Liquidity Facilities);
(v) there are no pending or threatened actions or proceedings
against the Subordination Agent before any court or administrative agency
which individually or in the aggregate, if determined adversely to it,
would materially adversely affect the ability of the Subordination Agent to
perform its obligations under this Agreement, the Intercreditor Agreement
or any Liquidity Facility;
(vi) the Subordination Agent has not directly or indirectly offered
any Certificate for sale to any Person or solicited any offer to acquire
any Certificates from any Person, nor has the Subordination Agent
authorized anyone to act on its behalf to offer directly or indirectly any
Certificate for sale to any Person, or to solicit any offer to acquire any
Certificate from any Person; and the Subordination Agent is not in default
under any Liquidity Facility; and
(vii) the Subordination Agent is not directly or indirectly
controlling, controlled by or under common control with either Owner
Participant, the Owner Trustee, any Underwriter or the Lessee.
(b) Covenants. (i) The Subordination Agent agrees not to amend any
Liquidity Facility without the consent of the Lessee (so long as no Event of
Default shall have occurred and be continuing) and of the Owner Participant
(such consents not to be unreasonably withheld).
(ii) In connection with the deposit in the applicable Cash Account of
amounts drawn pursuant to any Downgrade Drawing under a Liquidity Facility, the
Subordination Agent agrees, so long as no Event of Default shall have occurred
and be continuing, to pay to the Lessee promptly following each Regular
Distribution Date any Investment Earnings on the amount so deposited which
remain after application of such Investment Earnings pursuant to Section 2.06
of such Liquidity Facility to the interest payable on such Downgrade Drawing
under Section 3.07 of such Liquidity Facility. Capitalized terms used in this
Section shall have the meanings specified in the Intercreditor Agreement.
ARTICLE 8
TAXES
Section 8.01. Lessee's Obligation to Pay Taxes. (a) Generally. The
Lessee agrees promptly to pay when due, and to indemnify and hold each
Indemnitee harmless from all license, recording, documentary, registration and
other fees and all taxes (including, without limitation, income, gross
receipts, sales, rental, use, value added, property (tangible and intangible),
ad valorem, excise and stamp taxes), fees, levies, imposts, recording duties,
duties, charges, assessments or withholdings of any nature whatsoever,
together with any assessments, penalties, fines, additions to tax or interest
thereon (individually, a "Tax," and collectively called "Taxes"), however
imposed or asserted (whether imposed upon any Indemnitee, the Lessee, all or
any part of the Aircraft, Airframe, any Engine or any Part or the Lessor's
Estate, the Trust Indenture Estate, Rent, the Certificates or otherwise in
connection therewith), by any Federal, state or local government or taxing
authority in the United States, or by any government or taxing authority of a
foreign country or of any political subdivision or taxing authority thereof or
by a territory or possession of the United States or an international taxing
authority relating to or measured by:
(i) the construction, mortgaging, financing, refinancing, purchase,
acceptance, rejection, delivery, nondelivery, transport, location,
ownership, registration, reregistration, deregistration, insuring,
assembly, possession, repossession, operation, use, non-use, condition,
maintenance, repair, improvement, conversion, sale, return, abandonment,
preparation, installation, storage, redelivery, replacement, manufacture,
leasing, subleasing, sub-subleasing, modification, alteration, rebuilding,
importation, transfer of title, transfer of registration, exportation or
other application or disposition of, or the imposition of any Lien (or the
incurrence of any liability to refund or pay over any amount as a result of
any Lien) on, the Aircraft, the Airframe, any Engine or any Part or any
interest therein;
(ii) amounts payable under the Operative Agreements;
(iii) the Property, or the income or other proceeds received with
respect to the Property attributable to the transactions contemplated by
the Operative Agreements, held by the Owner Trustee under the Trust
Agreement or after an Event of Default under the Lease, or by the Indenture
Trustee under the Indenture;
(iv) otherwise with respect to the Operative Agreements or the
Original Agreements or any interest therein or by reason of the
transactions described in or contemplated by the Operative Agreements or
the Original Agreements;
(v) the principal or interest or other amounts payable with respect
to the Original Loan Certificates, the Pass Through Certificates or the
Certificates;
(vi) the Original Loan Certificates, the Pass Through Certificates
or the Certificates or the issuance, sale, acquisition, reoptimization or
refinancing thereof or the beneficial interests in the Trust Estate or the
Trust Indenture Estate or the creation thereof under the Trust Agreement or
the Indenture, or the security interest created or perfected thereby or by
any filing thereof;
(vii) any assumption by the Lessee pursuant to Section 7.11 of this
Agreement and Section 2.11 of the Indenture;
(viii) the Aircraft, the Airframe, any Engine or any Part; or
(ix) the rentals (including Basic Rent, Renewal Rent and Supplemental
Rent), receipts or earnings arising from the Operative Agreements.
(b) Exceptions. The indemnity provided for in Section 8.01(a) shall
not extend to any of the following:
(i) With respect to an Indemnitee other than an Original Loan
Participant, Taxes based upon, measured by or with respect to the net or
gross income, items of tax preference or minimum tax or excess profits,
receipts, value-added taxes, capital, franchise, net worth (whether
denominated income, excise, capital stock, or doing business taxes) or
other similarly-based taxes (other than sales, use, transfer, rental, ad
valorem, stamp, property, or similar taxes) ("Income Taxes"), provided,
however, that this clause (i) shall not exclude from the indemnity
described in Section 8.01(a) above any such Income Taxes to the extent such
taxes are imposed by any jurisdiction in which the Indemnitee would not be
subject to such taxes but for, or would be subject to such taxes solely as
a result of, (x) the operation, registration, location, presence, or use of
the Aircraft, Airframe, any Engine or any Part thereof, in such
jurisdiction or (y) the place of incorporation or principal office or the
activities of the Lessee or any sublessee in such jurisdiction (it being
understood that (A) any such indemnity would be payable only to the extent
of the net harm incurred by the Indemnitee from such Income Taxes, taking
into account any incremental current Tax benefit in another tax
jurisdiction resulting from payment of such Income Taxes and (B) this
sentence would require indemnification in a jurisdiction in which the
Indemnitee is already subject to an Income Tax (an "Existing Income Tax")
only if an event set forth in Clause (x) or (y) of this sentence causes the
Indemnitee to be subject to an Income Tax in that jurisdiction (a "New
Income Tax") other than an Existing Income Tax, and such New Income Tax
would have been imposed even if the activities contemplated by the
Operative Agreements or the Original Agreements were the Indemnitee's sole
nexus to the jurisdiction); provided, further, that the provisions of this
paragraph (b)(i) relating to Income Taxes shall not exclude from the
indemnity described in Section 8.01(a) hereof any Income Taxes for which
the Lessee would be required to indemnify an Indemnitee (x) so that any
payment under the Operative Agreements or the Original Agreements,
otherwise required to be made on an After-Tax Basis, is made on an
After-Tax Basis or (y) pursuant to the last sentence of Section 8.02, 8.05,
9.02 or 9.05 of this Agreement;
(ii) With respect to an Original Loan Participant, Income Taxes
(other than in the case of a Non-U.S. Person, U.S. federal withholding
taxes on amounts payable with respect to such Original Loan Participant's
Loan Certificate) except to the extent such Income Tax is imposed
(including by way of increase) by any jurisdiction in which the Indemnitee
is subject to tax (A) on or with respect to any gain resulting from the
assumption of any Loan Certificate by the Lessee, (B) as a result of the
operation, registration, location, presence, basing or use of the Aircraft,
Airframe, any Engine or any Part thereof, in such jurisdiction (it being
understood that (I) the incremental Income Taxes described in this clause
(B) shall not include any U.S. Federal income taxes and (II) that to the
extent such incremental Income Taxes give rise to any incremental current
Tax benefit in another tax jurisdiction, that such incremental benefit
shall offset and decrease the incremental Income Taxes determined under
this clause (B)) or (C) solely as a result of the place of incorporation,
principal office, corporate domicile or the activities of the Lessor, any
Owner Participant, the Owner Trustee, the Indenture Trustee, the Lessee or
any sublessee in such jurisdiction (it being understood that to the extent
that any Income Taxes described under this clause (C) give rise to any
incremental current Tax benefit in another tax jurisdiction or another tax
period, that such incremental Tax benefit shall offset and decrease the
Income Taxes determined under this clause (C)); provided, however, that the
provisions of this paragraph (b)(ii) relating to Income Taxes shall not
exclude from the indemnity described in Section 8.01(a) any Income Taxes
for which the Lessee would be required to indemnify an Indemnitee (x) so
that any payment under the Operative Agreements, otherwise required to be
made on an After-Tax Basis, is made on an After-Tax Basis or (y) pursuant
to the last sentence of Section 8.02 of this Agreement;
(iii) Taxes imposed with respect to the Aircraft and arising out of
or measured by acts, omissions, events or periods (or any combination of the
foregoing) which occur after the later of (A) the payment in full of all
amounts payable by the Lessee pursuant to and in accordance with the
Operative Agreements, or the earlier discharge in full of the Lessee's
payment obligations under and in accordance with the Lease and the other
Operative Agreements (and the Original Loan Certificates in the case of an
Original Loan Participant, the Indenture Trustee or the Trust Indenture
Estate if the Lessee shall have assumed the Certificates pursuant to
Section 7.11 of this Agreement), and (B) the earliest of (x) the expiration
of the Term of the Lease and return of the Aircraft in accordance with
Article 12 of the Lease, (y) the termination of the Lease in accordance with
the applicable provisions of the Lease and return of the Aircraft in
accordance with the Lease, or (z) the termination of the Lease in
accordance with the applicable provisions of the Lease and the transfer of
all right, title and interest in the Aircraft to the Lessee pursuant to its
exercise of any of its purchase options set forth in Section 4.02(a) of the
Lease, provided that this exclusion (iii) shall not apply in respect of any
payment made after the dates set forth in clauses (A) and (B) above unless
such payment is made with respect to any event or circumstance occurring
on, with or prior to such return or transfer or period prior to such return
or transfer, or Taxes incurred in connection with the exercise of any
remedies pursuant to Article 17 of the Lease following the occurrence of an
Event of Default;
(iv) As to the Owner Trustee, Taxes imposed against the Owner Trustee
upon or with respect to any fees for services rendered in its capacity as
Owner Trustee under the Original Trust Agreement or the Trust Agreement or,
as to the Indenture Trustee, Taxes imposed against the Indenture Trustee
upon or with respect to any fees received by it for services rendered in
its capacity as Indenture Trustee under the Original Indenture or the
Indenture;
(v) Taxes imposed on an Indemnitee that would not have been imposed
but for the willful misconduct or gross negligence of such Indemnitee
(other than gross negligence or willful misconduct not actually committed
by but instead imputed to such Indemnitee by reason of such Indemnitee's
participation in the transactions contemplated by the Operative Agreements
or the Original Agreements) or the breach by such Indemnitee of: (i) in the
case of an Indemnitee other than any Owner Participant, any representation,
warranty or covenant contained in the Operative Agreements or the Original
Agreements or any document delivered in connection therewith and (ii) in
the case of any Owner Participant, the representations or covenants in
Sections 7.02(a), (c); 7.03(a)(i), (ii), (iii), (iv), (vii), (ix); and
7.03(b), (c), (d), (e) of this Agreement (in either case unless
attributable to a breach of representation, warranty or covenant of the
Lessee);
(vi) Taxes imposed on, and not collected by withholding from payments
of Rent, the Owner Trustee or any Owner Participant or any successor,
assign or Affiliate thereof which became payable by reason of any voluntary
or involuntary transfer or disposition by such Indemnitee subsequent to the
Delivery Date, including revocation of the Trust, of any interest in some
or all of the Aircraft, Airframe, Engines or Parts thereof or its interest
in the Lessor's Estate (not including any transfers of any Loan
Certificates pursuant to Section 15.01(a) hereof) or a disposition in
connection with a bankruptcy or similar proceedings involving either the
Lessor or any Owner Participant other than (A) transfers resulting from a
loss, substitution or modification of the Aircraft, Engines or any Part,
(B) any transfer of the Aircraft, Engines or any Part (in each case other
than at Fair Market Value) to the Lessee or other person in possession
thereof, (C) transfers attributable to an Event of Default or (D) a
transfer pursuant to the Lessee's exercise of its rights under Section
10.01 of the Lease; the parties agree to cooperate to minimize any such
Taxes covered by this provision; provided that no Indemnitee shall be
required to take any action that, in its good faith judgment, could result
in any adverse consequences to such Indemnitee;
(vii) Taxes imposed on any Owner Participant for which the Lessee is
obligated to indemnify such Owner Participant pursuant to the Tax Indemnity
Agreement;
(viii) Taxes imposed on a successor, assign or other transferee of any
Owner Participant or the Owner Trustee that is not a U.S. Person or of any
other original Indemnitee (including, without limitation, a transferee
which is a new lending office of an original Indemnitee) which on the
Delivery Date is an Indemnitee (for purposes of this clause (viii), an
"original Indemnitee") or such original Indemnitee to the extent that such
Taxes exceed the amount of Taxes that would have been imposed (in the case
of a Loan Participant, immediately after giving effect to such succession,
assignment or other transfer) and would have been indemnifiable pursuant to
Section 8.01(a) had there not been a succession, assignment or other
transfer by such original Indemnitee of any such interest of such
Indemnitee in the Aircraft or any Part, any interest in or under any
Operative Agreement, or any proceeds thereunder (it being understood that
for purposes of determining the amount of indemnification that would have
been due to such original Indemnitee with respect to a net income Tax, it
shall be assumed that such original Indemnitee would be subject to taxation
on its income at the highest marginal statutory rate applicable to it),
provided, however, that the exclusion provided by this clause (viii) shall
not apply in the case of a succession, transfer or disposition (A) while an
Event of Default under the Lease has occurred and is continuing at the time
of such transfer or disposition, (B) which is an actual or deemed transfer
pursuant to Section 7.11 hereof or Section 2.13, 2.15, 2.16, 2.17 or 2.18
of the Indenture or as a consequence of a Refinancing under Section 15.01
hereof, or any actual or deemed transfer of a Loan Certificate that as part
of a Refinancing under Section 15.01 hereof is not retired, but only to the
extent the Taxes attributable to such transfer exceed the amount of Taxes
that would have been imposed on such transferor if the debt had instead
been retired, (C) to the extent necessary to make payments with respect to
such Taxes on an After-Tax Basis, (D) to the extent such Taxes are directly
attributable to the failure of the Lessee to take administrative actions as
have been reasonably requested of it in writing in a timely manner and
which will result in no after-tax cost or expense to the Lessee or (E) in
the case of any Owner Participant or the Lessor, to any Tax other than an
Income Tax;
(ix) [Reserved];
(x) Any Taxes which have been included in the Purchase Price and
which have been paid to the applicable taxing authorities;
(xi) Any Taxes which would not have been imposed but for a Lessor's
Lien or an Indenture Trustee's Lien;
(xii) Taxes imposed on any Owner Participant or any person who is a
"disqualified person", within the meaning of Section 4975(e)(2) of the
Code, or a "party in interest", within the meaning of Section 3(14) of
ERISA, by virtue of such person's relationship to such Owner Participant as
the result of any prohibited transaction, within the meaning of Section 406
of ERISA and Section 4975(c)(1) of the Code, occurring with respect to the
purchase or holding of any Loan Certificate (A) in connection with which
purchase or holding such Owner Participant or any Affiliate thereof is
acting as the investment manager, advisor or discretionary trustee and is
making or directing such purchase or holding (other than in the capacity of
a custodian, directed trustee or other similar nondiscretionary capacity),
or (B) by an employee benefit plan, within the meaning of Section 3(3) of
ERISA, or a plan subject to Section 4975 of the Code with respect to which
such Owner Participant (or any Affiliate thereof) is the "plan sponsor"
within the meaning of Section 3(16)(B) of ERISA, provided, however, that in
the event of a Refinancing of the Certificates described in Section
15.01(d)(viii) hereof, the exception under this clause (xii) shall not be
applicable and in place thereof the exception described in Section
15.01(d)(viii) hereof to the indemnity provided for in Section 8.01(a)
hereof shall be applicable; and
(xiii) Taxes imposed on the Lessor or on any Owner Participant by any
jurisdiction that would have been imposed on the Lessor or such Owner
Participant for activities in such jurisdiction unrelated to the
transactions contemplated by the Operative Agreements to the extent imposed
on such unrelated activities.
(c) Withholding. The Pass Through Trustee shall withhold any Taxes
required to be withheld on payments to any holder of a Pass Through
Certificate who is a Non-U.S. Person except to the extent that such a holder
of a Pass Through Certificate has furnished evidence to the Pass Through
Trustee sufficient under applicable law to entitle such holder of a Pass
Through Certificate to any exemption from withholding on interest claimed by
such holder of a Pass Through Certificate. The Indenture Trustee shall
withhold any Taxes required to be withheld on any payment to a Holder pursuant
to Section 5.09 of the Indenture. If the Indenture Trustee or the Pass
Through Trustee fails to withhold a Tax required to be withheld with respect
to any Holder of a Certificate or any holder of a Pass Through Certificate or
any claim is otherwise asserted by a taxing authority against the Owner
Trustee or any Owner Participant or any of their Affiliates for or on account
of any amount required to be withheld from a payment in respect of a
Certificate or a Pass Through Certificate, the Lessee will indemnify the Owner
Trustee and each Owner Participant (without regard to the exclusions set forth
in Section 8.01(b) hereof) on an After-Tax Basis against any Taxes required to
be withheld and any interest, penalties and additions to tax with respect
thereto, along with any other costs (including attorneys' fees) incurred in
connection with any such claim. The Indenture Trustee or the Pass Through
Trustee, as the case may be, in its individual capacity (and without recourse
to the Trust Indenture Estate), shall indemnify the Lessee on an After-Tax
Basis for any payment the Lessee shall have made pursuant to the preceding
sentence.
Section 8.02. After-Tax Basis. The amount which the Lessee shall be
required to pay with respect to any Tax indemnified against under Section 8.01
shall be an amount sufficient to restore the Indemnitee, on an After-Tax
Basis, to the same position such party would have been in had such Tax not
been incurred, provided that the calculation of any additional amounts owing
to any Indemnitee as a result of the Lessee's obligation to indemnify on an
After-Tax Basis shall be made without regard to the exclusions set forth in
Section 8.01(b). If any Indemnitee actually realizes a tax benefit by reason
of the payment of any Tax paid or indemnified against by the Lessee, such
Indemnitee shall promptly pay to the Lessee, to the extent such tax benefit was
not previously taken into account in computing such payment, but not before the
Lessee shall have made all payments then due to such Indemnitee under this
Agreement, the Tax Indemnity Agreement and any other Operative Agreement, an
amount equal to the lesser of (x) the sum of such tax benefit plus any other
tax benefit actually realized by such Indemnitee that would not have been
realized but for any payment made by such Indemnitee pursuant to this sentence
and not already paid to the Lessee, and (y) the amount of the payment made
under Section 8.01 hereof and this Section 8.02 by the Lessee to such
Indemnitee plus the amount of any other payments by the Lessee to such
Indemnitee theretofore required to be made under this Section 8.02 and
Sections 8.01 and 8.05 hereof (and the excess, if any, of the amount described
in clause (x) above over the amount described in clause (y) above shall be
carried forward and applied to reduce pro tanto any subsequent obligations of
the Lessee to make payments to such Indemnitee pursuant to Section 8.01
hereof); provided, however, that notwithstanding the foregoing portions of
this sentence, such Indemnitee shall not be obligated to make any payment to
the Lessee pursuant to this sentence as long as an Event of Default shall have
occurred and be continuing under the Lease. The Lessee shall reimburse on an
After-Tax Basis such Indemnitee (and without regard to Section 8.01(b) hereof,
except for clause (v) thereof) for any payment of a tax benefit pursuant to
the preceding sentence (or a tax benefit otherwise taken into account in
calculating the Lessee's indemnity obligation hereunder) to the extent that
such tax benefit is subsequently disallowed or reduced (including the
expiration of any tax credit carryovers or carrybacks of such Indemnitee that
would not otherwise have expired).
Section 8.03. Time of Payment. Any amount payable to an Indemnitee
pursuant to this Article 8 shall be paid promptly, but in any event within 30
days after receipt of a written demand therefor from such Indemnitee
accompanied by a written statement describing in reasonable detail the basis
for such indemnity and the computation of the amount so payable, provided that
in the case of amounts which are being contested by the Lessee in good faith
or by the Indemnitee in either case pursuant to Section 8.04 hereof, such
amount shall be payable within 30 days after the time such contest is finally
resolved.
Section 8.04. Contests. If a written claim is made against any
Indemnitee for Taxes with respect to which the Lessee is liable for a payment
or indemnity hereunder, such Indemnitee shall promptly (but in any event
within 30 days of receipt thereof) give the Lessee notice in writing of such
claim and shall furnish the Lessee with copies of any written requests for
information sent to such Indemnitee (and not the Lessee) from any taxing
authority to the extent relating to such Taxes with respect to which the
Lessee may be required to indemnify hereunder and with respect to which it
would be necessary or beneficial to have information provided by the Lessee;
provided, however, that the failure of an Indemnitee to give such notice or
furnish such copy shall not terminate any of the rights of such Indemnitee
under this Article 8, except to the extent that the Lessee's contest rights
have been materially and adversely impaired by the failure to provide such
notice or copy. The Lessee may, at its option, contest in its own name or, if
required by law, require the Indemnitee to contest in good faith, with due
diligence and at the Lessee's expense, if timely requested in writing by the
Lessee, the validity, applicability or amount of such Taxes by:
(i) resisting payment thereof if lawful and practicable or not paying
the same except under protest if protest is necessary and proper in each
case so long as non-payment will not result in a material risk of the sale,
forfeiture or loss of, or the creation of a Lien other than a Lessor's Lien
on the Aircraft, Airframe or any Engine or any risk of criminal liability;
or
(ii) if the payment be made, using reasonable efforts to obtain a
refund thereof in appropriate administrative and judicial proceedings.
Notwithstanding the foregoing, the Lessee shall not be permitted or entitled
to contest any such Tax in its own name unless the Tax is reflected in a
report or a return of the Lessee or raised in an audit or other proceeding of
the Lessee and the Lessee is allowed to directly contest such Tax under
applicable law of the taxing jurisdiction provided, that if the Lessee is so
permitted under applicable law to contest a Tax asserted against the Lessee
and the same or similar Tax is also asserted against the Indemnitee, each of
the Lessee and such Indemnitee shall conduct its contest in its own name and
the Lessee and such Indemnitee will cooperate in a reasonable manner with
respect to the respective contests of such Tax.
If the Indemnitee, after reasonable discussion with the Lessee and
consideration in good faith of any suggestion made by the Lessee as to the
method of pursuing such contest, elects to conduct the contest, such
Indemnitee shall control the contest and shall determine the manner in which
to contest such Taxes and shall periodically or upon the Lessee's request
advise the Lessee of the progress of such contest; provided, however, that the
Lessee shall have the right to be consulted in good faith with respect to any
contest of claims subject to indemnification hereunder, including governmental
and judicial conferences and the right to be consulted in good faith regarding
the relevant portions of all related submissions to any governmental or other
authority, provided, however, that the Lessee shall be permitted to
participate in any such contest only (x) with respect to issues that can be
separated on audit from any Taxes for which the Lessee is not required to
indemnify the Indemnitee hereunder, and (y) if the Indemnitee shall have
determined that in its judgment, exercised in its sole discretion, neither
such participation nor the separation of issues will adversely affect the
Indemnitee. The Indemnitee will not settle a contest that results in a final
determination without consent of the Lessee, unless the Indemnitee waives its
right to indemnification with respect to such contest and any related contest.
Notwithstanding the preceding sentences of this Section 8.04, such Indemnitee
shall not be required to take or continue any action unless the Lessee shall
have (i) agreed in writing to pay and shall pay the Indemnitee on a current
basis and on an After-Tax Basis the after-tax cost of all reasonable fees and
expenses (including reasonable attorneys' fees and accountants' fees) which
such Indemnitee may incur as a result of contesting such Taxes, (ii) made all
payments and indemnities (other than contested payments and indemnities) then
due to the Indemnitee hereunder or with respect to any of the transactions
contemplated by or under the Operative Agreements and (iii) acknowledged in
writing the Lessee's obligation to such Indemnitee pursuant to this Agreement
to the extent that the contest is not successful, unless it is reasonably
clear from the resolution of the contest that an exclusion set forth in
Section 8.01(b) hereof applies. In no event shall such Indemnitee be required
or the Lessee be permitted to contest pursuant to this Section 8.04 the
imposition of any Tax for which the Lessee is obligated to indemnify any
Indemnitee hereunder unless (i) such Indemnitee shall have received, at the
Lessee's expense, an opinion of its tax counsel, such counsel to be reasonably
satisfactory to the Lessee ("Tax Counsel"), to the effect that there exists a
reasonable basis for contesting such claim, (ii) such Indemnitee (and, if such
Indemnitee is not an Owner Participant, the Owner Participants and such
Indemnitee) shall have determined that such contest will not result in any
material risk of loss, sale or forfeiture of, or the creation of a Lien (other
than Lessor's Liens) on, the Aircraft or any part thereof or interest thereon
or in a risk of criminal liability, or adversely affect the Trust Indenture
Estate, (iii) if a Payment Default, Bankruptcy Default or an Event of Default
shall have occurred and be continuing, the Lessee shall have provided security
for its obligations hereunder reasonably satisfactory to the Indemnitee, (iv)
if such contest shall be conducted in a manner requiring payment of the claim
in advance, the Lessee shall have advanced sufficient funds, on an interest
free basis, to make the payment required, and agreed to indemnify the
Indemnitee against any additional net adverse tax consequences on an After-Tax
Basis to such Indemnitee of such advance, (v) the issue shall not be the same
as an issue previously contested hereunder and decided adversely, unless the
Indemnitee shall have received at the Lessee's sole expense, a written
opinion, in form and substance reasonably satisfactory to such Indemnitee, of
Tax Counsel to the effect that the applicable circumstances or law has changed
and that in light thereof, there is substantial authority for contesting such
claim and (vi) the amount of the indemnity payments the Lessee would be
required to make with respect to such adjustment, when aggregated with similar
adjustments that could be raised in other taxable years of such Indemnitee
exceeds $50,000; provided, that in the event that such Indemnitee is not
required under this paragraph to contest any Tax liability for which the
Lessee is obligated to indemnify any Indemnitee, the Lessee may contest such
Tax liability in the name of the Lessee, if such contest by the Lessee (x) is
permitted by law, (y) is conducted entirely at the expense of Lessee and in a
manner that will not result in any unindemnified cost, Tax or risk to the
Indemnitee and (z) satisfies the condition of clause (ii) of this sentence.
The Lessee may appeal or require the Indemnitee to appeal any judicial
decision provided the foregoing requirements of this Section 8.04 are met and
the Indemnitee shall have received, at the Lessee's expense, an opinion of Tax
Counsel, to the effect that there is substantial authority for such appeal.
Nothing contained in this Section 8.04 shall require any Indemnitee to
contest or continue to contest, or permit Lessee to contest, a claim which such
Indemnitee would otherwise be required to contest pursuant to this Section
8.04, if such Indemnitee shall waive payment by Lessee of any amount that
might otherwise be payable by Lessee under this Article 8 in connection with
such claim.
Section 8.05. Refunds. Upon receipt by an Indemnitee of a refund of
all or any part of any Taxes which the Lessee shall have paid for such
Indemnitee or for which the Lessee shall have reimbursed or indemnified such
Indemnitee, and provided there shall not have occurred and be continuing any
Payment Default, Bankruptcy Default or Event of Default by the Lessee
hereunder or under the Lease (in which case payment shall not be made to the
Lessee until such Payment Default, Bankruptcy Default or Event of Default
shall have been cured), such Indemnitee shall pay to the Lessee an amount
equal to the amount of such refund less (x) any expenses not previously
reimbursed, (y) all payments then due to such Indemnitee under this Article
8 and (z) Taxes imposed with respect to the accrual or receipt thereof,
including interest received attributable thereto, plus any tax benefit
actually realized by such Indemnitee as a result of any payment by such
Indemnitee made pursuant to this sentence; provided, however, that such amount
shall not be payable (a) before such time as the Lessee shall have made all
payments or indemnities then due and payable to such Indemnitee under this
Article 8 and (b) to the extent that the amount of such payment would exceed
(i) the amount of all prior payments by the Lessee to such Indemnitee pursuant
to this Article 8 less (ii) the amount of all prior payments by such
Indemnitee to the Lessee pursuant to this Article 8.
Any subsequent loss of such refund or tax benefit shall be treated as
a Tax subject to indemnification under the provisions of this Article 8 (in
the case of any such tax benefit, without regard to Section 8.01(b) hereof).
Section 8.06. Lessee's Reports. In case any report or return is
required to be made with respect to any Taxes against which the Lessee is or
may be obligated to indemnify the Indemnitees under this Article 8, the Lessee
shall make such report or return, except for any such report or return that
the Indemnitee has notified the Lessee that it intends to file, in such manner
as will show the ownership of the Aircraft in the Owner Trustee and shall send
a copy of the applicable portions of such report or return to the Indemnitee
and the Owner Trustee or will notify the Indemnitee of such requirement and
make such report or return in such manner as shall be satisfactory to such
Indemnitee and the Owner Trustee. The Lessee will provide such information
reasonably available to the Lessee as the Indemnitee may reasonably require
from the Lessee to enable the Indemnitee to fulfill its tax filing
requirements with respect to the transactions contemplated by the Operative
Agreements (without duplication of the requirements of Section 3 of the Tax
Indemnity Agreement) and any audit information request arising from any such
filing. The Indemnitee will provide such information reasonably available to
it as the Lessee may reasonably require from such Indemnitee to enable the
Lessee to fulfill its tax filing requirements with respect to the transactions
contemplated by the Operative Agreements and any audit information request
arising from such filing; provided that in no event shall any Indemnitee be
required to provide copies of any of its tax returns or other confidential
information. The Lessee shall hold the Indemnitee harmless on an After-Tax
Basis from and against any liabilities, including penalties, additions to tax,
fines and interest, imposed upon or incurred by such Indemnitee to the extent
directly attributable to any insufficiency or inaccuracy in any return,
statement, or report prepared by the Lessee or information supplied by the
Lessee, or directly attributable to the Lessee's failure to supply reasonably
available information to such Indemnitee as required by this Section 8.06.
Section 8.07. Survival of Obligations. The representations,
warranties, indemnities and agreements of the Lessee provided for in this
Article 8 and the Lessee's obligations under any and all of them shall survive
the making available by the Participants of their respective Commitments and
the expiration or other termination of the Operative Agreements.
Section 8.08. Payment of Taxes. With respect to any Tax otherwise
indemnifiable hereunder by the Lessee and applicable to the Aircraft,
Airframe, any Engine or Parts, to the extent permitted by the applicable
federal, state, local or foreign law, the Lessee shall pay such tax directly
to the relevant Taxing authority and file any returns or reports required with
respect thereto to the extent legally entitled to do so in its own name;
provided, however, that the Lessee shall not make any statements or take any
action which would indicate that the Lessee or any Person other than the Owner
Trustee or the Owner Participants are the owner of the Aircraft, the Airframe,
any Engine or any Part or which would otherwise be inconsistent with the terms
of the Lease or the Tax Indemnity Agreement and the position thereunder of the
Owner Trustee and the Owner Participants. Copies of such returns or reports,
together with evidence of payment of any tax due, shall be sent by the Lessee
to the Owner Participants within thirty (30) days after the date of each
payment by the Lessee of any Tax.
Section 8.09. Reimbursements by Indemnitees Generally. To the
extent the Lessee is required to pay or withhold any Tax imposed on or with
respect to an Indemnitee in respect of the transactions contemplated by the
Operative Agreements, which Tax is not otherwise the responsibility of the
Lessee under the Operative Agreements, or any other written agreements between
the Lessee and such Indemnitee, then such Indemnitee shall pay to the Lessee
within 30 days of the Lessee's demand therefor an amount which equals the
amount actually paid by Lessee with respect to such Taxes.
ARTICLE 9
GENERAL INDEMNITY
Section 9.01. Generally. (a) The Lessee agrees to indemnify each
Indemnitee against and agrees to protect, defend, save and keep harmless each
Indemnitee from any and all liabilities, obligations, losses, damages
(including if, as a result of an Indenture Event of Default described in
Section 7.01(a)(i) of the Indenture, the Indenture Trustee shall have sold all
or any portion of the Indenture Estate and the proceeds thereof were less than
an amount equal to accrued and unpaid Basic Rent on the date of sale plus the
Stipulated Loss Value as of such date, damages equal to such shortfall
together with interest thereon to the extent permitted by law at the Debt Rate
until such shortfall is paid in full), penalties, claims, actions, suits,
costs, disbursements and expenses (including legal fees and expenses and all
costs and expenses relating to amendments, supplements, adjustments, consents,
refinancings and waivers under the Operative Agreements and the Original
Agreements except as otherwise provided in Section 10.01(c)(i) or Article 15
hereof) of every kind and nature (whether or not any of the transactions
contemplated by this Agreement are consummated) (individually, an "Expense,"
collectively, "Expenses"), which may be imposed on, incurred or suffered by or
asserted against any Indemnitee, in any way relating to, based on or arising
out of:
(i) the Original Agreements, this Agreement, the Lease, the
Indenture, the Trust Agreement, the Intercreditor Agreement, the Series
Supplements, the Liquidity Facilities, the Pass Through Agreement, the
Bills of Sale or any other Operative Agreement or any amendment to any
Operative Agreement or any other document entered into in connection
herewith or any sublease or transfer or any transactions contemplated
hereby or thereby;
(ii) the operation, possession, ownership, use, non-use, maintenance,
storage, delivery, non-delivery, control, testing, overhaul or repair of
the Aircraft, Airframe, or any Engine or any engine used in connection with
the Airframe, or any part thereof by the Lessee, any sublessee or any other
Person whatsoever, whether or not such operation, possession, ownership,
use, non-use, maintenance, storage, delivery, non-delivery, control,
testing, overhaul or repair is in compliance with the terms of the Lease,
including without limitation, claims for death, personal injury or property
damage or other loss or harm to any Person whatsoever and claims relating
to any laws, rules or regulations;
(iii) the manufacture, design, purchase, condition, repair,
modification, airworthiness, return, lease, sale, acceptance, rejection,
servicing, rebuilding, registration, alteration, merchantability,
substitution, replacement, fitness for use, transfer or sublease of any
Airframe, Engine, or Part under the Lease, the GTA or the Engine Warranty
Assignment or other transfer of use or possession, or other disposition of
the Aircraft, the Airframe, any Engine or any Part, latent or other defects
whether or not discoverable, strict tort liability, and any claims for
patent, trademark or copyright infringement;
(iv) any breach of or failure to perform or observe, or any other
non-compliance with, any condition, covenant or agreement to be performed,
or other obligations of the Lessee under any of the Operative Agreements or
the Original Agreements, or the falsity or inaccuracy of any representation
or warranty of the Lessee in any of the Operative Agreements or the
Original Agreements (other than representations and warranties in the Tax
Indemnity Agreement);
(v) the enforcement of the terms of the Operative Agreements or the
Original Agreements and the administration of the Trust Indenture Estate;
and
(vi) the offer, issuance, sale or delivery of any Certificate or any
Pass Through Certificate or any Original Loan Certificate, or any refunding
or refinancing thereof, or interest in the Lessor's Estate or the Trust
Agreement or the Original Trust Agreement or any similar interest or in any
way relating to or arising out of the Trust Agreement or the Original Trust
Agreement and the Lessor's Estate, the Indenture or the Original Indenture
or the Trust Indenture Estate (including, without limitation, any claim
arising out of the Securities Act of 1933, as amended, the Securities
Exchange Act of 1934, as amended, or any other federal or state statute,
law or regulation, or at common law or otherwise relating to securities), or
the action or inaction of the Owner Trustee or Indenture Trustee as
trustees, in the manner contemplated by this Agreement, the Original
Participation Agreement, the Indenture, the Original Indenture, the
Indenture and Security Agreement Supplement, the Trust Agreement or the
Original Trust Agreement and in the case of any Owner Participant, its
obligations arising under Section 6.01 of the Trust Agreement or the
Original Trust Agreement.
The foregoing indemnity by the Lessee is intended to include and cover, but is
not limited to, any Expense to which the Indemnitees may be subject as a
result of their respective ownership or leasing of any interest in or holding
of any Lien on the Aircraft, Airframe, any Engine or Part during the Term,
whether or not in the Lessee's possession or control, insofar as such Expense
relates to any activity or event whatsoever involving such item while it is
under lease to the Lessee (or after termination of the Lease in connection
with the exercise of remedies thereunder to the extent that such Expense is
attributable to the transactions contemplated hereby and by the other
Operative Agreements and the Original Agreements), and such Expense does not
fall within any of the exceptions listed in Section 9.01(b) hereof.
(b) Exceptions. The indemnity provided for in Section 9.01(a) shall
not extend to any Expense of any Indemnitee:
(i) to the extent attributable to the willful misconduct or gross
negligence of such Indemnitee;
(ii) in respect of the Aircraft to the extent attributable to acts or
events which occur after the Aircraft is no longer part of the Lessor's
Estate or leased under the Lease (except provided that this exclusion shall
not apply to the extent that the Lessee has assumed the Loan Certificates
pursuant to Section 7.11 hereof) or, if the Aircraft remains a part of the
Lessor's Estate, after the expiration of the Term (other than pursuant to
Article 17 of the Lease, in which case the indemnity provided in Section
9.01(a) hereof shall survive for so long as Lessor shall be entitled to
exercise remedies under such Article 17), or to acts or events which occur
after return of possession of the Aircraft by the Lessee in accordance with
the provisions of the Lease but in any such case only to the extent not
fairly attributable to acts or omissions of the Lessee prior to expiration
of the Term, including without limitation the Lessee's failure to fully
discharge all of its obligations under the Lease, the other Operative
Agreements or the Original Agreements;
(iii) which is a Tax, whether or not the Lessee is required to
indemnify therefor pursuant to Article 8 hereof or pursuant to the Tax
Indemnity Agreement;
(iv) which is a cost or expense expressly required to be paid by such
Owner Participant or its permitted transferees (and not by the Lessee)
pursuant to this Agreement or any other Operative Agreement;
(v) to the extent that such Expenses would not have been incurred by
such Indemnitee if such Indemnitee had not been in breach of its
representations or warranties, or had not defaulted in the observance and
performance of the terms and provisions required to be observed and
performed by it, in this Agreement, the Engine Warranty Assignment, the
Lease, the Indenture, the Trust Agreement, the Original Agreements or any
other Operative Agreement to which it is a party unless such breach or
default shall be a result of the breach or default of any of the foregoing
by the Lessee or another Indemnitee;
(vi) [Reserved];
(vii) in the case of any Owner Participant, Lessor's Liens to the
extent attributable to such Owner Participant; in the case of WTC, Lessor's
Liens to the extent attributable to WTC; and in the case of the Indenture
Trustee, Indenture Trustee's Liens;
(viii) in the case of any Owner Participant or the Owner Trustee, to
the extent attributable to the offer or sale by such Indemnitee after the
Delivery Date of any interest in the Aircraft, the Lessor's Estate or the
Trust Agreement or any similar interest (including an offer or sale
resulting from bankruptcy or other proceedings for the relief of debtors in
which such Indemnitee is the debtor), unless in each case such offer or
sale shall occur (w) in connection with a Refinancing, (x) during a period
when an Event of Default has occurred and is continuing, (y) during a
period when an Event of Loss has occurred or (z) in connection with the
termination of the Lease or action or direction of the Lessee pursuant to
Section 4.02 of the Lease or Article 10 of the Lease; or
(ix) in the case of any Owner Participant or any person who is a
"disqualified person", within the meaning of Section 4975(e)(2) of the
Code, or a "party in interest", within the meaning of Section 3(14) of
ERISA, by virtue of such person's relationship to such Owner Participant,
as the result of any prohibited transaction, within the meaning of Section
406 of ERISA or Section 4975(c)(1) of the Code, occurring with respect to
the purchase or holding of any Loan Certificate (or any funded
participation therein) (i) over which purchase or holding such Owner
Participant or any Affiliate thereof (other than in the capacity of a
directed trustee or custodian or similar nondiscretionary capacity) has
discretion or control, or (ii) by an employee benefit plan, within the
meaning of Section 3(3) of ERISA, or individual retirement account or plan
subject to Section 4975 of the Code with respect to which such Owner
Participant (or any Affiliate thereof) is a "plan sponsor", within the
meaning of Section 3(16)(B) of ERISA.
Section 9.02. After-Tax Basis. The amount which the Lessee shall be
required to pay with respect to any Expense indemnified against under Section
9.01 shall be an amount sufficient to restore the Indemnitee, on an After-Tax
Basis, to the same position such party would have been in had such Expense not
been incurred. If any Indemnitee actually realizes a permanent Tax benefit by
reason of the payment of such Expense paid or indemnified against by the
Lessee which was not considered in the computation thereof, such Indemnitee
shall promptly pay to the Lessee, but not before the Lessee shall have made
all payments theretofore due such Indemnitee under this Agreement, the
Original Agreements, the Tax Indemnity Agreement and any other Operative
Agreement, an amount equal to the lesser of (x) the sum of such Tax benefit
plus any other permanent Tax benefit actually realized by such Indemnitee as
the result of any payment made by such Indemnitee pursuant to this sentence
and (y) the amount of such payment pursuant to this Section 9.02 by the Lessee
to such Indemnitee plus the amount of any other payments by the Lessee to such
Indemnitee theretofore made pursuant to this Section 9.02 less the amount of
any payments by such Indemnitee to the Lessee theretofore made pursuant to
this Section 9.02 (and the excess, if any, of the amount described in clause
(x) above over the amount described in clause (y) above shall be carried
forward and applied to reduce pro tanto any subsequent obligations of the
Lessee to make payments to such Indemnitee pursuant to this Section 9.02), it
being intended that no Indemnitee should realize a net Tax benefit pursuant to
this Section 9.02 unless the Lessee shall first have been made whole for any
payments by it to such Indemnitee pursuant to this Section 9.02; provided,
however, that notwithstanding the foregoing portions of this sentence, such
Indemnitee shall not be obligated to make any payment to the Lessee pursuant
to this sentence so long as any Payment Default, Bankruptcy Default or Event
of Default shall have occurred and be continuing. Any Taxes that are imposed
on any Indemnitee as a result of the disallowance or reduction of such Tax
benefit referred to in the next preceding sentence in a taxable year
subsequent to the year of allowance and utilization by such Indemnitee
(including the expiration of any tax credit carryovers or carrybacks of such
Indemnitee that would not otherwise have expired) shall be indemnifiable
pursuant to the provisions of Section 8.01 hereof (without regard to Section
8.01(b)(i), (iii) or (viii) hereof).
Section 9.03. Subrogation. Upon the payment in full of any indemnity
pursuant to this Article 9 by the Lessee (but not earlier), the Lessee shall be
subrogated to any right of the Indemnitee, other than with respect to any of
such Indemnitee's insurance policies or in connection with any indemnity claim
the Person indemnified may have against any other Indemnitee in respect of the
matter against which such indemnity has been made.
Section 9.04. Notice and Payment. Each Indemnitee and the Lessee
shall give prompt written notice one to the other of any liability of which
such party has knowledge for which the Lessee is, or may be, liable under this
Article 9; provided, however, that failure to give such notice shall not
terminate any of the rights of the Indemnitees under this Article 9, except
(with respect to such Indemnitee) to the extent that the Lessee has been
materially prejudiced by the failure to provide such notice. Unless otherwise
provided in the Operative Agreements, any amount payable to an Indemnitee
pursuant to this Article 9 shall be paid within 30 days after receipt of a
written demand therefor from such Indemnitee accompanied by a written statement
describing in reasonable detail the basis for such indemnity and the
computation of the amount so payable.
Section 9.05. Refunds. If any Indemnitee shall obtain a recovery of
all or any part of any amount which the Lessee shall have paid to such
Indemnitee or for which the Lessee shall have reimbursed such Indemnitee under
this Article 9, and provided there shall not have occurred a Payment Default,
Bankruptcy Default or an Event of Default (in which case payment shall not be
made to the Lessee until such Payment Default, Bankruptcy Default or Event of
Default shall have been cured) such Indemnitee shall pay to the Lessee, within
ten (10) Business Days of receipt thereof by such Indemnitee, the amount of
any such recovery, including interest received with respect to the recovery,
net of any Taxes paid or payable as a result of the receipt of the recovery
and interest, plus any net additional permanent income Tax benefits actually
realized by Indemnitee as the result of any payment made pursuant to this
sentence less any reasonable costs and expense of any Indemnitee not
reimbursed by the Lessee; provided, however, that such amount shall not be
payable (a) before such time as the Lessee shall have made all payments or
indemnities then due and payable to such Indemnitee under this Article 9 or
(b) to the extent that the amount of such payment would exceed the amount of
all prior payments by the Lessee to such Indemnitee pursuant to this Article
9, less the amount of all prior payments by such Indemnitee to the Lessee
pursuant to this Article 9. Any subsequent loss of such recovery or Tax
benefit shall be subject to indemnification under Article 8 or this Article 9,
as the case may be.
Section 9.06. Defense of Claims. The Lessee or its insurers shall
have the right (in each such case at the Lessee's sole expense) to investigate
or, provided that (i) the Lessee or its insurers shall not reserve the right
to dispute liability with respect to any insurance policies pursuant to which
coverage is sought, (ii) in the case of the Lessee, no Event of Default shall
have occurred and be continuing and (iii) the Lessee shall have first
acknowledged in writing to such Indemnitee the Lessee's obligation to
indemnify such Indemnitee hereunder in respect of such claim, defend any claim
covered by insurance for which indemnification is sought pursuant to this
Article 9 and each Indemnitee shall cooperate with the Lessee or its insurers
with respect thereto, and provided, further, the Lessee shall not be entitled
to assume and control the defense of any such claim if and to the extent such
Indemnitee reasonably objects to such control on the ground that an actual or
potential material conflict of interest exists where it is advisable for such
Indemnitee to be represented by separate counsel. Subject to the immediately
foregoing sentence, where the Lessee or the insurers under a policy of
insurance maintained by the Lessee undertake the defense of an Indemnitee with
respect to such a claim, no additional legal fees or expenses of such
Indemnitee in connection with the defense of such claim shall be indemnified
hereunder unless the fees or expenses were incurred at the written request of
the Lessee or such insurers. Subject to the requirement of any policy of
insurance applicable to a claim, an Indemnitee may participate at its own
expense at any judicial proceeding controlled by the Lessee or its insurers
pursuant to the preceding provisions, provided that such party's participation
does not, in the opinion of the independent counsel appointed by the Lessee or
its insurers to conduct such proceedings, interfere with such control; and
such participation shall not constitute a waiver of the indemnification
provided in this Section 9.06. No Indemnitee shall enter into any settlement
or other compromise with respect to any claim described in this Section 9.06
without the prior written consent of the Lessee, which consent shall not
unreasonably be withheld or delayed, unless such Indemnitee waives its right
to be indemnified under this Article 9 with respect to such claim. The Lessee
shall not enter into any settlement or compromise which admits any criminal
violation, gross negligence or willful misconduct on the part of any Indemnitee
without the prior written consent of such Indemnitee.
Section 9.07. Survival of Obligations. The representations,
warranties, indemnities and agreements of the Lessee provided for in this
Article 9 and the Lessee's obligations under any and all of them shall survive
the expiration or other termination of this Agreement, the Tax Indemnity
Agreement, the Trust Agreement, the Indenture, the Engine Warranty Assignment,
the Lease and the other Operative Agreements but, as to such indemnities, only
with respect to losses, liabilities, obligations, damages, penalties, claims,
actions, suits, costs, Expenses and disbursements caused by events occurring
or existing prior to or incurred in the process of (i) the return or
disposition of the Aircraft under Article 12 or Article 17 of the Lease, or
(ii) the termination of the Lease or the Indenture or, if later, the return of
the Aircraft.
Section 9.08. Effect of Other Indemnities. The Lessee's obligations
under the indemnities provided for in this Agreement shall be those of a
primary obligor whether or not the Person indemnified shall also be
indemnified with respect to the same matter under the terms of this Agreement,
the Lease, the Indenture, the Trust Agreement, or any other document or
instrument, and the Person seeking indemnification from the Lessee pursuant to
any provision of this Agreement may proceed directly against the Lessee
without first seeking to enforce any other right of indemnification.
Section 9.09. Interest. The Lessee will pay to each Indemnitee on
demand, to the extent permitted by applicable law, interest on any amount of
indemnity not paid when due pursuant to this Article 9 until the same shall be
paid, at the Past Due Rate and an Indemnitee who obtains a recovery under
Section 9.05 hereof that is required to be paid to the Lessee shall pay to the
Lessee on demand, interest on any amount not paid to the Lessee when due
pursuant to such Section 9.05, until the same shall be paid, at the Past Due
Rate.
ARTICLE 10
TRANSACTION COSTS
Section 10.01. Transaction Costs and Other Costs. (a) Transaction
Costs. Each Owner Participant shall (as soon as practicable upon receipt of
appropriate bills or invoices) furnish the Owner Trustee funds in an amount
equal to its Equity Percentage of the amount of the Transaction Costs for
which the Owner Trustee is liable pursuant to this Section 10.01. The Owner
Trustee shall pay (or reimburse the Lessee if the Lessee shall have previously
made such payment), in addition to those items set forth in Section 10.01(a)
of the Original Participation Agreement (other than clause (v) thereof) all
fees and expenses of the following persons relating to the public offering of
the Pass Through Certificates contemplated by the Underwriting Agreement and
related to the transactions contemplated hereby: (i) the fees and expenses of
counsel for each Owner Participant; (ii) the fees and expenses of the
transaction documentation counsel for the Lessee and counsel for the Owner
Trustee, the Indenture Trustee, the Subordination Agent, the Pass Through
Trustee, each Liquidity Provider, the Original Loan Participant and the
Underwriters (other than those fees, expenses and disbursements payable by the
Underwriters pursuant to the Underwriting Agreement); (iii) the fees and
expenses of Daugherty, Fowler & Peregrin; (iv) any initial fees and expenses
of the Pass Through Trustee and each Liquidity Provider and the fees and
expenses of the Owner Trustee, the Subordination Agent and the Indenture
Trustee; (v) any compensation, commissions and discounts payable to the
Underwriters pursuant to the Underwriting Agreement; (vi) the fees, if any,
incurred in printing the Pass Through Certificates; (vii) the fees and
expenses incurred in connection with printing any amendment to the
Registration Statement on Form S-3 bearing Registration No. 333-07691,
printing any Preliminary Prospectus or Prospectus (as such terms are defined
in the Underwriting Agreement) for the offering of the Pass Through
Certificates; (viii) the fees and expenses of Arthur Andersen LLP; (ix) the
fees and expenses of Moody's and S&P; and (x) the fees and expenses of First
Chicago Leasing Corporation; provided, however, that the Owner Participants
and the Owner Trustee shall be liable for the fees and expenses described in
clauses (ii) through (x) of this paragraph only to the extent such fees and
expenses are allocable to the Owner Trustee under this Agreement. Such fees
and expenses shall be allocable to the Owner Trustee under this Agreement only
(1) to the extent incurred specifically with respect to the Owner Trustee or
the Owner Participants or the refunding of the Original Loan Certificates, and
(2) to the extent such fees and expenses are incurred but are not specifically
attributable to the Owner Trustee or the Owner Participants or the refunding
of the Original Loan Certificates, in the proportion that the principal amount
of the Certificates bears to the total amount of the Pass Through Certificates.
Each Owner Participant, the Owner Trustee and the Lessee acknowledge
that the percentages for Basic Rent, EBO Price, Stipulated Loss Value and
Termination Value set forth in the Lease have been prepared assuming the
aggregate amount payable by such Owner Participant pursuant to the preceding
paragraph and Section 10.01 of the Original Participation Agreement is 1.61%
of the Purchase Price (the "Estimated Expense Amount"); provided, however,
that in no event shall the sum of (i) each Owner Participant's Commitment (as
such term is defined in the Original Participation Agreement), (ii) the
Transaction Costs to be paid by the Owner Participant pursuant to Section 2.03
of the Original Participation Agreement and (iii) the amount with respect to
Transaction Costs to be paid by each Owner Participant pursuant to Section
10.01 hereof, exceed its Equity Percentage times $21,885,320. To the extent
that the payment by the Owner Participant with respect to Transaction Costs
would cause the sum described in the immediately preceding sentence to exceed
$21,885,320, the Lessee shall be obligated to pay the Transaction Costs
constituting the First Chicago Leasing Corporation fee and the Davis Polk &
Wardwell fee to the extent of such excess and the Owner Participants shall
have no obligation to pay such excess.
(b) Continuing Expenses. The continuing fees, expenses and
disbursements (including reasonable counsel fees and expenses) of the entity
acting as Owner Trustee, as lessor under the Lease and as Owner Trustee under
the Trust Agreement with respect to the administration of the Lease and the
Lessor's Estate and the continuing fees, expenses and disbursements (including
reasonable counsel fees and expenses and initial fees relating to the
establishment of any replacement trustee) of the Indenture Trustee, as trustee
under the Indenture with respect to the administration of the Trust Indenture
Estate, the continuing fees, expenses and disbursements (including reasonable
counsel fees and initial fees relating to the establishment of a replacement
trustee) of the Pass Through Trustee and the Subordination Agent and the
continuing fees, expenses and disbursements (including reasonable counsel fees
and initial fees relating to the establishment of a replacement liquidity
provider) of the Liquidity Providers under each Liquidity Facility shall be
paid as Supplemental Rent by the Lessee, including without limitation any
amounts payable under the last paragraph of Section 2.04 of the Indenture and
amounts payable to the Indenture Trustee or on account of requests by the
Indenture Trustee for indemnification under Article XI of the Indenture.
(c) Amendments, Supplements and Appraisal. Without limitation of the
foregoing, the Lessee agrees:
(i) to pay as Supplemental Rent to the Owner Trustee, the Owner
Participants, the Owner Participant Guarantor, the Indenture Trustee, the
Subordination Agent, each Liquidity Providers and the Pass Through Trustee
all costs and expenses (including reasonable legal fees and expenses)
incurred by any of them in connection with (a) any Default or Event of
Default and any enforcement or collection proceedings resulting therefrom
or (b) the negotiation of any restructuring or "work-out" (whether or not
consummated), or the obligations of the Lessee hereunder or under the other
Operative Agreements and the enforcement of this Section 10.01, including,
without limitation, the entering into or giving or withholding of any
amendments or supplements or waivers or consents (whether or not
consummated), including without limitation, any amendment, waiver,
modification or consent resulting from any work-out, restructuring or
similar proceeding relating to the performance or nonperformance by the
Lessee of its obligations under the Operative Agreements or (c) any
amendment, supplement, waiver or consent (whether or not entered into)
under the Original Agreements, this Agreement, the Lease, the Indenture,
the Certificates, the Tax Indemnity Agreement, the Engine Warranty
Assignment or any other Operative Agreement or document or instrument
delivered pursuant to any of them, which amendment, supplement, waiver or
consent is required by any provision of any Operative Agreement or is
requested by the Lessee or necessitated by the action or inaction of the
Lessee; provided, however, that the Lessee shall not be responsible for fees
and expenses of the other parties hereto incurred in connection with the
offer, sale or other transfer (whether pursuant to Article 5 of the Trust
Agreement or otherwise) by the Owner Participants or the Owner Trustee
after the Refunding Date of any interest in the Aircraft, the Lessor's
Estate, the Beneficial Interest, the Trust Agreement or any similar
interest (and the Owner Participants shall be severally (not jointly)
responsible to the extent of their respective Equity Percentage for all
such fees and expenses, unless relating to any such transfer by an Owner
Participant in which case such Owner Participant shall be solely
responsible for making such payments), unless such offer, sale or transfer
shall occur (A) during a period when an Event of Default has occurred and
is continuing under the Lease, (B) during a period following an Event of
Loss, (C) in connection with the termination of the Lease or (D) as a
result of an action or direction of the Lessee pursuant to Section 4.02 or
Article 8, 9 or 10 of the Lease; and
(ii) to pay the fees, costs and expenses of all appraisers involved
in an independent appraisal of the Aircraft to the extent required under
Section 4.03 of the Lease.
ARTICLE 11
SUCCESSOR OWNER TRUSTEE
Section 11.01. Appointment of Successor Owner Trustee. (a)
Resignation and Removal. The Owner Trustee or any successor Owner Trustee may
resign or may be removed by a Majority in Interest of Owner Participants, and
a successor Owner Trustee may be appointed under the Trust Agreement only in
accordance with the provisions of Section 3.11 of the Trust Agreement and the
provisions of paragraphs (b) and (c) of this Section 11.01.
(b) Conditions to Appointment. The appointment in any manner of a
successor Owner Trustee pursuant to Section 3.11 of the Trust Agreement shall
be subject to the following conditions:
(i) Such successor Owner Trustee shall be a Citizen of the United
States;
(ii) Such successor Owner Trustee shall be a bank or a trust company
having combined capital, surplus and undivided profits of at least
$100,000,000 or a bank or trust company fully guaranteed by a direct or
indirect parent thereof having a combined capital, surplus and undivided
profits of at least $100,000,000;
(iii) Such appointment shall not violate any provisions of the
Transportation Code or any applicable rule or regulation of the applicable
regulatory agency or body of any other jurisdiction in which the Aircraft
may then be registered or create a relationship which would be in violation
of the Transportation Code or any applicable rule or regulation of the
applicable regulatory agency or body of any other jurisdiction in which the
Aircraft may then be registered;
(iv) Such successor Owner Trustee shall enter into an agreement or
agreements, in form and substance satisfactory to the Lessee, the Owner
Participants, the Pass Through Trustee and the Indenture Trustee whereby
such successor Owner Trustee confirms that it shall be deemed a party to
this Agreement, the Trust Agreement, the Lease, the Lease Supplement, the
Engine Warranty Assignment, the Indenture, the Indenture Supplement and any
other Operative Agreement to which the Owner Trustee is a party and agrees
to be bound by all the terms of such documents applicable to the Owner
Trustee and makes the representations and warranties contained in Section
7.04 hereof (except that it may be duly incorporated, validly existing and
in good standing under the laws of the United States of America or any
State thereof); and
(v) All filings of Uniform Commercial Code financing and continuation
statements, filings in accordance with the Transportation Code and
amendments thereto shall be made and all further actions taken in
connection with such appointment as may be necessary in connection with
maintaining the validity, perfection and priority of the Lien of the
Indenture and the valid and continued registration of the Aircraft in
accordance with the Transportation Code.
(c) Appointment. For so long as the Aircraft remains registered
under the Transportation Code, the Owner Participants agree to appoint
promptly a successor Owner Trustee meeting the requirements of Section
11.01(b) hereof in the event any Owner Participant has knowledge that the
Owner Trustee at any time shall not be a Citizen of the United States.
ARTICLE 12
LIABILITIES AND INTERESTS OF THE OWNER PARTICIPANTS AND HOLDERS
Section 12.01. Liabilities of the Owner Participants. No Owner
Participant shall have any obligation or duty to the Lessee or to any Holder
with respect to the transactions contemplated by this Agreement, except those
obligations or duties expressly set forth in this Agreement, the Trust
Agreement and the Tax Indemnity Agreement to which such Owner Participant is a
party and such Owner Participant shall not be liable for the performance by
any party hereto of such other party's obligations or duties hereunder. Under
no circumstances shall such Owner Participant as such be liable to the Lessee,
nor shall such Owner Participant be liable to any Holder, for any action or
inaction on the part of the Owner Trustee or the Indenture Trustee in
connection with this Agreement, the Indenture, the Lease, the Bills of Sale,
the Trust Agreement, the Engine Warranty Assignment, any other Operative
Agreement, any Original Agreement, the ownership of the Aircraft, the
administration of the Lessor's Estate or the Trust Indenture Estate or
otherwise, whether or not such action or inaction is caused by the willful
misconduct or gross negligence of the Owner Trustee or the Indenture Trustee.
Section 12.02. Interest of Holders of Certificates. A Holder of a
Certificate shall have no further interest in, or other right with respect to,
the Trust Indenture Estate when and if the principal and interest on all
Certificates held by such Holder and all other sums payable to such Holder
under this Agreement, under the Indenture and under such Certificates shall
have been paid in full.
ARTICLE 13
OTHER DOCUMENTS
Section 13.01. Consent of Lessee to Other Documents. The Lessee
hereby consents in all respects to the execution and delivery of the Trust
Agreement, the Intercreditor Agreement, the Liquidity Facilities and the
Indenture and to all of the terms of said documents, and the Lessee
acknowledges receipt of an executed counterpart of each of such documents; it
being agreed that such consent shall not be construed to require the Lessee's
consent to any future supplement to, or amendment, waiver or modification of
the terms of the Trust Agreement, the Indenture, the Intercreditor Agreement,
the Liquidity Facilities or the Certificates, except that prior to the
occurrence and continuance of an Event of Default, no section of the Indenture,
the Intercreditor Agreement, the Liquidity Facilities or the Trust Agreement
shall be amended or modified in any manner materially adverse to the Lessee
without its consent.
Section 13.02. Further Assurances. The Lessee hereby confirms to
each Owner Participant its covenants set forth in and obligations under the
Lease. The Lessee agrees that, except as otherwise provided in the Indenture,
the Owner Trustee may not enter into any amendment, modification or supplement
of, or give any waiver or consent with respect to, or approve any matter or
document as being satisfactory under the Lease without the prior consent of
the Indenture Trustee and the Owner Participants and that, except as otherwise
provided in the Indenture, upon an Indenture Event of Default, the Indenture
Trustee may act as the Lessor under the Lease to the exclusion of the Owner
Trustee. The Lessee further agrees to deliver to the Indenture Trustee and
the Owner Participants a copy of each notice, statement, request, report or
other communication given or required to be given to the Owner Trustee under
the Lease.
Section 13.03. No Retroactive Application. This Agreement, the
Lease, the Indenture, the Ancillary Agreement I and the Trust Agreement each
amend and restate, and the Tax Indemnity Agreement amends, the respective
original agreements with no intention of retroactive application. The
applicable original agreements have been restated for the convenience of the
parties and such amendments and restatements, and such amendment in the case
of the Tax Indemnity Agreement, are not intended to waive or modify the
obligations of any party which accrued or were to have been performed on or
prior to the Refunding Date under such unamended agreements (or, in the case
of this Agreement, the effective date hereof) or to deprive any party of its
rights and remedies in respect thereof.
Section 13.04. Pass Through Trustee's and Subordination Agent's
Acknowledgement. The Pass Through Trustee and the Subordination Agent hereby
acknowledge and agree to be bound by all of the terms and conditions of the
Indenture, including without limitation, Section 8.01 thereof regarding the
rights of the Owner Participants to purchase the Certificates under
circumstances specified therein.
ARTICLE 14
NOTICES
Section 14.01. Notices. All notices, demands, declarations and other
communications required by this Agreement shall be in writing and shall be
deemed received (a) if given by telecopier, when transmitted and the
appropriate telephonic confirmation received if transmitted on a Business Day
and during normal business hours of the recipient, and otherwise on the next
Business Day following transmission, (b) if given by certified mail, return
receipt requested, postage prepaid five Business Days after being deposited in
the United States mail, and (c) if given by FedEx service or other means, when
received or personally delivered, addressed:
(a) If to the Lessee, to its office at 2007 Corporate Avenue,
Memphis, Tennessee 38132, Attention: Vice President and Treasurer with a
copy to Senior Vice President and General Counsel at 1980 Nonconnah Drive,
Memphis, Tennessee 38132, telephone (901) 395-3388, facsimile (901)
395-4758; or to such other address as the Lessee shall from time to time
designate in writing to the Lessor, the Indenture Trustee and the Owner
Participants;
(b) If to the Lessor or the Owner Trustee, to its office at 1100
North Market Street, Rodney Square North, Wilmington, Delaware 19890-0001,
Attention: Corporate Trust Administration, telephone (302) 651-1000,
facsimile (302) 651-8882; or to such other address as the Lessor shall from
time to time designate in writing to the Lessee and the Indenture Trustee,
with a copy to the Owner Participants;
(c) (i) If to Comerica Leasing Corporation, to its office at 29201
Telegraph Road, 2nd Floor, Southfield, Michigan 48034-1392, Attention:
Michael MacMichael, telephone (810) 948-2950, facsimile (810) 948-2995, or
to such other address as such Owner Participant may from time to time
designate in writing to the Lessee and the Indenture Trustee and (ii) If to
Norwest Bank Minnesota, National Association, to its office at 733
Marquette Avenue, Suite 300, Minneapolis, Minnesota 55479-2048, Attention:
Leveraged Leasing, telephone (612) 667-9876, facsimile (612) 667-9702, or
to such other address as such Owner Participant may from time to time
designate in writing to the Lessee and the Indenture Trustee;
(d) If to the Indenture Trustee, the Subordination Agent or the Pass
Through Trustee, to its office at 79 South Main Street, Salt Lake City,
Utah 84111, Attention: Corporate Trust Department, telephone (801)
246-5053, facsimile (801) 246-5630; or to such other address as the
Indenture Trustee or the Pass Through Trustee, as the case may be, shall
from time to time designate in writing to the Lessor, the Lessee and any
Owner Participant;
(e) If to the Pass Through Trustee, to its office at 79 South Main
Street, Salt Lake City, Utah 84111, Attention: Corporate Trust Department,
telephone (801) 246-5053, facsimile (801) 246-5630; or to such other
address as the Pass Through Trustee shall from time to time designate in
writing to the Lessor, the Lessee and the Owner Participants; and
(f) If to a Liquidity Provider, to its office at 125 West 55th
Street, New York, New York 10019, Attention: General Manager, telephone
(212) 541-0600, facsimile (212) 956-5580; or to such other address as a
Liquidity Provider shall from time to time designate in writing to the
Lessor, the Lessee and the Indenture Trustee.
ARTICLE 15
REFINANCING/REOPTIMIZATION
Section 15.01. Refinancing. (a) Subject to the terms and
conditions of this Section 15.01, the Lessee may request the Owner
Participants to participate in up to two refinancings (including the
refinancing contemplated by this Agreement on the Refunding Date), in whole
but not in part, of the Certificates prior to the end of the Basic Term (each
a "Refinancing"). Such Refinancings may be placed in either the private or
public markets in the United States and shall be denominated in United States
dollars, and shall be on terms reasonably satisfactory to the Owner
Participants and shall not materially adversely affect such Owner Participant.
Each Owner Participant agrees to negotiate promptly in good faith to conclude
an agreement with the Lessee as to the terms of any such refinancing
transaction (including the terms of any debt to be issued in connection with
such refinancing and the documentation to be executed in connection
therewith). Without the prior written consent of the applicable Owner
Participant, the prospectus and other offering materials relating to any
Refinancing in the form of a public offering shall not identify such Owner
Participant and shall not include any financial statements of such Owner
Participant or any Affiliate thereof. In connection with any such Refinancing
in the form of a public offering, the Lessee shall indemnify the Owner
Participants for any liabilities under federal, state or foreign securities
laws resulting from such offering. With the exception of the refinancing
contemplated by this Agreement on the Refunding Date, the aggregate principal
amount of the new Certificates issued in connection with each Refinancing
shall be the same as the aggregate principal amount outstanding on the
Certificates being refinanced.
(b) Notwithstanding anything herein to the contrary, no Refinancing
will be permitted unless each Owner Participant and the Indenture Trustee
shall have received at least 15 days' prior written notice of the scheduled
closing date of such Refinancing, each Owner Participant shall have been
provided a reasonable opportunity to review the relevant documentation and
each Owner Participant shall have determined in good faith that neither it nor
the Owner Trustee shall suffer any loss or expense or bear any increased risk
as a result of such Refinancing (including, without limitation, any risk with
respect to taxes or other adverse consequences to such Owner Participant
including the application of Revenue Procedures 75-21 and 75-28 and Section
467 of the Code) for which it has not been or will not have been indemnified
by the Lessee in a manner reasonably satisfactory to such Owner Participant.
Prior to the consummation of any Refinancing pursuant to this Section
15.01, the Owner Participants and the Lessee shall agree upon a schedule
setting forth each installment of Basic Rent, Stipulated Loss Values, and
Termination Values payable pursuant to the Lease as a result of the
Refinancing in accordance with Section 3.04 of the Lease, and thereafter the
amounts set forth in such schedule shall become the amounts payable under the
Lease. Upon the consummation of the Refinancing, the evidence of indebtedness
issued pursuant to the Refinancing shall be considered "Certificates" for
purposes of the Operative Agreements.
(c) Notwithstanding the foregoing, the Owner Participants shall have
no obligation to proceed with any Refinancing transaction as contemplated by
this Section 15.01 unless the Lessee indemnifies the Owner Trustee and the
Owner Participants by agreement in form and substance satisfactory to each of
them, for any liability, obligation (other than the obligation to pay
principal and interest in respect of the refinanced indebtedness), cost or
expense (including, without limitation, reasonable attorneys' fees and
Make-Whole Premium and any other premiums or amounts due under the Indenture),
including any adverse tax consequences or impact, related to or arising out of
any such Refinancing transaction, except to the extent of amounts included in
Transaction Costs and payable by the Owner Participants as provided herein.
(d) Each party agrees to take or cause to be taken, at the Lessee's
sole cost and expense, all requested action, including, without limitation,
the execution and delivery of any documents and instruments, including,
without limitation, amendments or supplements to the Lease, which may be
reasonably necessary or desirable to effect such Refinancing, including, in
the case of the Owner Participants, direction to the Owner Trustee by the
Owner Participants to prepay the Certificates then outstanding; provided,
however, that such Refinancing shall be subject to the satisfaction of each of
the following conditions:
(i) Payment of principal, accrued interest, Make-Whole Premium and
Breakage Costs, if any, and all other sums due and owing on the Certificates
payable under the Indenture;
(ii) Payment in full of all other amounts then due and owing by the
Lessee under this Agreement, the Indenture, the Lease, the Trust Agreement,
and the Certificates then outstanding shall have been made by the Lessee;
(iii) Such party shall have received such opinions of counsel
(including, without limitation, an opinion received by the Owner
Participants from independent tax counsel and reasonably satisfactory to
the Lessee that such Refinancing shall not result in any adverse tax
consequences to the Owner Participants, unless the Lessee shall have agreed
to provide an indemnity in respect thereof reasonably satisfactory in form
and substance to the Owner Participants), certificates and other documents
as it may reasonably request, each in form and substance reasonably
satisfactory to such party;
(iv) All authorizations, approvals and consents which in the
reasonable judgment of each Owner Participant are necessary for such
Refinancing shall have been obtained;
(v) The Lessee shall have provided or agreed to provide to each Owner
Participant, as Supplemental Rent under the Lease, sufficient funds to pay
any Breakage Costs, Make-Whole Premium and any other amounts due under the
Indenture;
(vi) The satisfaction or waiver by each other party to this Agreement
of the conditions set forth in this Section 15.01 to such party's
obligations under this Section 15.01;
(vii) No Event of Default shall have occurred and be continuing or
would occur immediately after giving effect to such Refinancing; and
(viii) The documentation relating to such Refinancing shall permit
the Lessee to place the Refinancing loan certificates with an ERISA Plan.
The Lessee shall not indemnify any Owner Participant, or any of such Owner
Participant's Affiliates, assigns, officers, directors, employees, agents
and servants, for any Taxes, within the meaning of Section 8 hereof, or
Expenses, within the meaning of Section 9 hereof, arising under or in
connection with any "prohibited transaction" within the meaning of Section
406 of ERISA or Section 4975 of the Code, if the sole underwriter or the
manager or co-manager of the underwriting syndicate or the selling or
placement agent of the Refinancing loan certificates has an exemption from
the prohibited transaction rules under Section 406 of ERISA and Section 4975
of the Code with respect to pass through certificates, such as Prohibited
Transaction Exemption 90-24 or any other comparable exemption, unless such
exemption is not available or is not valid with respect to such Refinancing
loan certificates at the time of such prohibited transaction. If such
exemption is not available or is not valid, then the Lessee shall indemnify
such Owner Participant pursuant to, and to the extent provided for, under
Sections 8 and 9 hereof for Taxes and Expenses arising under or in
connection with any "prohibited transaction", within the meaning of Section
406 of ERISA or Section 4975 of the Code, resulting from such placement.
(e) Any debt to be issued in connection with a Refinancing shall have
an interest rate that is fixed for the entire term of such debt and shall
not include any debt whose fixed interest rate is reset at any time during
the term of such debt.
Section 15.02. Reoptimization. (a) If a Change in Tax Rate occurs
prior to the end of the Basic Term, then, subject to the terms and conditions
of this Section 15.02 and Section 3.04 of the Lease, the Owner Participants
may, upon 30 days' prior notice to the Lessee, the Indenture Trustee, the
Owner Trustee and the Holders, jointly elect to modify the schedule of
payments of principal of the certificates issued ("Refinancing Certificates")
in connection with any Refinancing effected after the Refunding Date using
private debt (not including debt issued pursuant to an exemption from
registration under the Securities Act relying on Rule 144A promulgated
thereunder but otherwise marketed in a manner substantially similar to
securities registered under the Securities Act, and not including debt issued
in connection with any offering of securities registered under the Securities
Act) due on each remaining Rent Payment Date on or commencing on the Rent
Payment Date next succeeding the date mutually agreed to by the Owner
Participants, the Lessee and the Indenture Trustee on which the Owner
Participants shall make such modification (the "Reoptimization Date").
Promptly after making such modification, the Owner Participants shall furnish
each party hereto written notice of the amounts so recalculated.
(b) Adjustments to Refinancing Certificates. On the Reoptimization
Date, subject to the satisfaction on or before the Reoptimization Date of the
conditions set forth in Section 15.02(c), the Owner Trustee will issue and
deliver and the Indenture Trustee will authenticate, and each holder of a
Refinancing Certificate will accept delivery of, a new Refinancing Certificate
or Refinancing Certificates (in replacement of each Refinancing Certificate
then held by such holder, which Refinancing Certificates shall be surrendered
to the Indenture Trustee for cancellation) containing such changed principal
installments (expressed as a percentage of the original principal amount of
such Refinancing Certificate) as shall have been recalculated by the Owner
Participants, but in the same principal amount as, and containing terms
identical to, except as otherwise contemplated by Section 15.02(d) hereof, the
Refinancing Certificates originally issued in connection with the Operative
Agreements.
(c) Conditions to the Obligations of the Holders of the Refinancing
Certificates on the Reoptimization Date. The obligation of each holder of a
Refinancing Certificate to accept delivery of a new Refinancing Certificate on
the Reoptimization Date, and to surrender on such Reoptimization Date any
Refinancing Certificate then held by it, is subject to the following
conditions precedent having been satisfied on or before the Reoptimization
Date:
(i) the requirements of Section 15.02(d) hereof shall have been
satisfied;
(ii) the following documents, in form and substance satisfactory to
such Holder, shall have been duly authorized, executed and delivered by the
party or parties thereto and shall be in full force and effect: (A) if the
payments of Basic Rent, Stipulated Loss Values and Termination Values with
respect to the Term have been changed, an amendment to the Lease, dated the
Reoptimization Date, (B) an amendment to the Indenture setting forth any
changed repayment schedule to the Refinancing Certificates, dated the
Reoptimization Date and (C) replacement Refinancing Certificates; and
(iii) in connection with any Reoptimization each Owner Participant
shall pay or agree to pay severally (not jointly) its Equity Percentage of
all reasonable costs and expenses incurred by the Lessee, the Owner
Trustee, the Indenture Trustee and each Holder of a Refinancing Certificate
(including, without limitation, reasonable legal fees and expenses) in
connection with any such reoptimization.
(d) Payment Schedules. Except as otherwise provided in this Section
15.02 as long as the Refinancing Certificates remain outstanding, the payment
schedules for the Refinancing Certificates shall not be modified.
ARTICLE 16
[RESERVED]
ARTICLE 17
MISCELLANEOUS
Section 17.01. Owner for Federal Tax Purposes. It is hereby agreed
between the Owner Participants and the Lessee (but the Lessee makes no
representation to such effect) that for Federal income tax purposes the Lessor
(and through the Lessor the Owner Participants) will be entitled to the tax
benefits attendant to the ownership of the Aircraft and the Lessee will be
treated as the lessee of the Aircraft.
Section 17.02. [Reserved]
Section 17.03. Counterparts. This Agreement may be executed by the
parties in separate counterparts, each of which when so executed and delivered
shall be an original, but all such counterparts shall together constitute but
one and the same instrument.
Section 17.04. No Oral Modifications. Neither this Agreement nor
any of its terms may be terminated, amended, supplemented, waived or modified
orally, but only by an instrument in writing signed by the party against which
the enforcement of the termination, amendment, supplement, waiver or
modification is sought. No such written termination, amendment, supplement,
waiver or modification shall be effective unless a signed copy shall have been
delivered to and executed by the Owner Trustee and the Indenture Trustee. A
copy of each such termination, amendment, supplement, waiver or modification
shall also be delivered to each other party to this Agreement other than the
Original Loan Participant.
The consent of the Pass Through Trustee and the Subordination Agent,
in their capacity as a party to this Agreement and not as a Holder, shall not
be required to modify, amend or supplement this Agreement or to give any
consent, waiver, authorization or approval with respect to this Agreement
under the circumstances in which the consent of the Indenture Trustee would
not be required for such modification, amendment, supplement, consent, waiver
or approval in accordance with Section 8.01(b) of the Indenture, provided that
the Pass Through Trustee shall be entitled to receive an Opinion of Counsel
(as defined in the Pass Through Agreement) necessary, in its sole discretion,
to establish that the Indenture Trustee's consent would not be required under
such circumstances.
Section 17.05. Captions. The table of contents preceding this
Agreement and the headings of the various Articles and Sections of this
Agreement are for convenience of reference only and shall not modify, define,
expand or limit any of the terms or provisions of this Agreement.
Section 17.06. Successors and Assigns. The terms of this Agreement
shall be binding upon, and shall inure to the benefit of, the Lessee and its
successors and permitted assigns, the Owner Participants and their respective
successors and permitted assigns, the Owner Trustee and its successors as
Owner Trustee (and any additional owner trustee appointed) under the Trust
Agreement, the Indenture Trustee and its successors as Indenture Trustee (and
any additional indenture trustee appointed) under the Indenture, the
Subordination Agent and its successors and permitted assigns and the Pass
Through Trustee and its successors as Pass Through Trustee (and any additional
pass through trustee appointed).
Section 17.07. Concerning the Owner Trustee, Indenture Trustee and
the Pass Through Trustee. Each of WTC and FSB is entering into this Agreement
solely in their respective capacities (except to the extent otherwise
expressly indicated), in the case of WTC, not in its individual capacity but
solely as Owner Trustee under the Trust Agreement, in the case of FSB, not in
its individual capacity but solely as Indenture Trustee under the Indenture
and as Pass Through Trustee under the Pass Through Agreement, and except as
otherwise expressly provided in this Agreement or in the Lease, the Indenture,
the Pass Through Agreement or the Trust Agreement, neither WTC, nor FSB,
shall be personally liable for or on account of its statements,
representations, warranties, covenants or obligations under this Agreement;
provided, however, that each of WTC and FSB accepts the benefits running to it
under this Agreement, and each agrees that (except as otherwise expressly
provided in this Agreement or any other Operative Agreement to which it is a
party) it shall be liable in its individual capacity for (a) its own gross
negligence or willful misconduct (whether in its capacity as trustee or in its
individual capacity), (b) any breach of representations and warranties or any
breach of covenants made in its individual capacity pursuant to or in
connection with this Agreement or the other Operative Agreements to which it is
a party, (c) any breach, in the case of the Owner Trustee, of its covenants
contained in Sections 3.05 and 3.08 of the Indenture, (d) the failure to use
ordinary care in receiving, handling and disbursing funds, (e) in the case of
the Owner Trustee, Lessor's Liens attributable to it in its individual
capacity, (f) in the case of the Indenture Trustee, Indenture Trustee's Liens
and (g) taxes, fees or other charges on, or based on, or measured by, any
fees, commissions or compensation received by it in connection with the
transactions contemplated by the Operative Agreements.
Section 17.08. Severability. Any provision of this Agreement which
is prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions, and any such
prohibition or unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction.
Section 17.09. Public Release of Information. Subject to applicable
legal requirements (including, without limitation, securities laws
requirements, other regulatory requirements and other legally compelled
disclosures), so long as there shall not have occurred an Event of Default or
Indenture Event of Default, each party to this Agreement shall in each
instance obtain the prior written approval of each other party to this
Agreement concerning the exact text and timing of news releases, articles and
other information releases to the public media concerning any Operative
Agreements.
Section 17.10. Certain Limitations on Reorganization. The Indenture
Trustee agrees that, if (i) the Lessor's Estate or the trust created by the
Trust Agreement becomes the property of, a debtor subject to the
reorganization provisions of the Bankruptcy Code or any other applicable
bankruptcy or insolvency statutes, (ii) pursuant to such reorganization
provision, any Owner Participant is held to have recourse liability to the
debtor or the trustee of the debtor directly or indirectly on account of any
amount payable as principal, interest or premium on the Certificates, and
(iii) the Indenture Trustee actually receives any Recourse Amount which
reflects any payment by the Owner Participants on account of (ii) above, then
the Indenture Trustee, as the case may be, shall promptly refund to such Owner
Participant such Recourse Amount. For purposes of this Section 17.10,
"Recourse Amount" means the amount by which the portion of such payment by
such Owner Participant on account of clause (ii) above received by the
Indenture Trustee exceeds the amount which would have been received by the
Indenture Trustee if such Owner Participant had not become subject to the
recourse liability referred to in (ii) above. Nothing contained in this
Section shall prevent the Indenture Trustee from enforcing any individual
obligation (and retaining the proceeds thereof) of any Owner Participant under
this Agreement or any other Operative Agreement to the extent herein or
therein provided, for which such Owner Participant has expressly agreed by the
terms of this Agreement to accept individual responsibility.
Section 17.11. GOVERNING LAW. THIS AGREEMENT SHALL IN ALL RESPECTS
BE GOVERNED BY, AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF
NEW YORK, INCLUDING ALL MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE BUT
WITHOUT GIVING EFFECT TO PRINCIPLES OF CONFLICTS OF LAWS, AND IS BEING
DELIVERED IN NEW YORK.
Section 17.12. Section 1110 Compliance. Notwithstanding any
provision herein or elsewhere contained to the contrary, it is understood and
agreed among the parties hereto that the transactions contemplated by this
Agreement and the other Operative Agreements are expressly intended to be,
shall be and should be construed so as to be, entitled to the full benefits of
Section 1110 of the Bankruptcy Code from time to time with respect to the
right to repossess the Airframe, the Engines and any Parts as provided herein,
and in any circumstances where more than one construction of the terms and
conditions of this Agreement is possible, a construction which would preserve
such benefits shall control over any construction which would not preserve
such benefits or would render them doubtful.
Section 17.13. Reliance of Liquidity Providers. Each of the parties
hereto agrees and acknowledges that each Liquidity Provider shall be a third
party beneficiary of each of the representations and warranties made herein by
such party, and that each Liquidity Provider may rely on such representations
and warranties to the same extent as if such representations and warranties
were made to such Liquidity Provider directly. The terms of this Agreement
shall inure to the benefit of each Liquidity Provider, their respective
successors and permitted assigns.
ARTICLE 18
CONFIDENTIALITY
Section 18.01. Confidentiality. Each party hereto agrees (on behalf
of itself and each of its Affiliates, agents, directors, officers, employees
and representatives) to use reasonable precautions to keep confidential, in
accordance with its customary procedures for handling confidential information
of this nature, any non-public information supplied to it pursuant to this
Agreement which is identified by the Person supplying the same as being
confidential at the time the same is delivered to such party, provided that
nothing herein shall limit the disclosure of any such information (i) to the
extent required by statute, rule, regulation or judicial process, (ii) to
counsel for any of the parties hereto, (iii) to bank examiners or similar
regulatory authorities, auditors or accountants, (iv) in connection with any
litigation to which any one or more of the parties hereto is a party relating
to the transactions contemplated hereby or by any of the Operative Agreements,
(v) to an Affiliate of the parties hereto, (vi) to any assignee or participant
(or prospective assignee or participant) or other transferee so long as such
assignee or participant (or prospective assignee or participant) or other
transferee first executes and delivers to the respective party making such
assignment or participation an agreement in writing to be bound by the
provisions of this Section 18.01 or (vii) in the case of any Owner Participant
or the Owner Trustee (in its individual or trust capacity) to the Owner
Trustee (in its individual or trust capacity) or to such Owner Participant, as
the case may be.
IN WITNESS WHEREOF, the parties have caused this Participation
Agreement to be executed by their respective, duly authorized officers and this
Participation Agreement shall be effective this 22nd day of May, 1997.
LESSEE:
FEDERAL EXPRESS CORPORATION
By:__________________________________________
Name: Robert D. Henning
Title: Assistant Treasurer and Managing
Director - Structured Finance
OWNER PARTICIPANTS:
COMERICA LEASING CORPORATION
By:__________________________________________
Name:
Title:
NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION
By:__________________________________________
Name:
Title:
OWNER TRUSTEE:
WILMINGTON TRUST COMPANY,
not in its individual capacity except as
otherwise expressly provided herein,
but solely as Owner Trustee
By:__________________________________________
Name: Donald G. MacKelcan
Title: Assistant Vice President
ORIGINAL INDENTURE TRUSTEE:
STATE STREET BANK AND TRUST COMPANY,
not in its individual capacity except as
otherwise expressly provided herein,
but solely as Original Indenture Trustee
By:__________________________________________
Name: Paul D. Allen
Title: Vice President
ORIGINAL LOAN PARTICIPANT:
MORGAN GUARANTY TRUST COMPANY
OF NEW YORK,
as Agent and as Original Loan Participant
By:__________________________________________
Name:
Title:
INDENTURE TRUSTEE:
FIRST SECURITY BANK,
NATIONAL ASSOCIATION,
not in its individual capacity except as
otherwise expressly provided herein,
but solely as Indenture Trustee
By:__________________________________________
Name: Greg A. Hawley
Title: Vice President
PASS THROUGH TRUSTEE:
FIRST SECURITY BANK,
NATIONAL ASSOCIATION,
not in its individual capacity except as
otherwise expressly provided herein,
but solely as Pass Through Trustee
By:__________________________________________
Name: Greg A. Hawley
Title: Vice President
SUBORDINATION AGENT:
FIRST SECURITY BANK,
NATIONAL ASSOCIATION,
not in its individual capacity except as
otherwise expressly provided herein,
but solely as Subordination Agent
By:__________________________________________
Name: Greg A. Hawley
Title: Vice President
SCHEDULE I
CERTIFICATE INFORMATION
1. Federal Express Corporation 1997-1 Pass Through Trust Class A
Federal Express Corporation Trust No. N587FE
Interest Rate: 7.50%
Maturity: January 15, 2015
Principal Amount: $37,512,000
2. Federal Express Corporation 1997-1 Pass Through Trust Class B
Federal Express Corporation Trust No. N587FE
Interest Rate: 7.52%
Maturity: January 15, 2010
Principal Amount: $13,796,000
3. Federal Express Corporation 1997-1 Pass Through Trust Class C
Federal Express Corporation Trust No. N587FE
Interest Rate: 7.65%
Maturity: January 15, 2007
Principal Amount: $10,446,000
SCHEDULE II
DEFINITIONS
(FEDERAL EXPRESS CORPORATION TRUST NO. N587FE)
GENERAL PROVISIONS
The following terms shall have the following meanings for all
purposes of the Operative Agreements (other than the Pass Through Agreement,
the Series Supplements, the Intercreditor Agreement and the Liquidity
Facilities) referred to below, unless otherwise defined in an Operative
Agreement or the context thereof shall otherwise require. In the case of any
conflict between the provisions of this Schedule and the provisions of any
Operative Agreement, the provisions of such Operative Agreement shall control
the construction of such Operative Agreement.
Unless the context otherwise requires, (i) references to agreements
shall be deemed to mean and include such agreements as amended and
supplemented from time to time, and (ii) references to parties to agreements
shall be deemed to include the successors and permitted assigns of such
parties.
DEFINED TERMS:
Additional Insured. As defined in Article 13 of the Lease.
Aeronautics Authority. As appropriate, the Federal Aviation
Administration and/or the Administrator of the Federal Aviation
Administration, any successor to the former United States Civil Aeronautics
Board, or any Person, governmental department, bureau, commission or agency
located in the United States succeeding to the functions of any of the
foregoing.
Affiliate. With respect to any Person, any other Person directly or
indirectly controlling, controlled by or under common control with such
Person. For the purposes of this definition, "control" (including "controlled
by" and "under common control with") shall mean the power, directly or
indirectly, to direct or cause the direction of the management and policies of
such Person whether through the ownership of voting securities or by contract
or otherwise. In no event shall the Owner Trustee or the Lessor be deemed an
Affiliate of an Owner Participant and WTC shall not be deemed to be an
Affiliate of any of the Owner Trustee, the Lessor or such Owner Participant.
Neither Owner Participant, by virtue of its status or the agreements in
respect thereof, shall be deemed an "Affiliate" of the other Owner
Participant.
After-Tax Basis. A basis such that any payment received or deemed to
have been received by a Person shall be supplemented by a further payment to
such Person so that the sum of the two payments, after deduction of all Taxes
resulting from the receipt or accrual of such payments, shall be equal to the
payment received or deemed to have been received. In the case of amounts
payable to the Lessor, the Owner Participants, or any corporate Affiliate of
an Owner Participant, it shall be presumed that such Person is at all times
subject to Federal income tax at the maximum marginal rate generally
applicable to corporations from time to time and actual state, local and
foreign income taxes.
Agent. Morgan Guaranty Trust Company of New York and its successors
and permitted assigns as Agent for the Original Loan Participant pursuant to
Article 16 of the Original Participation Agreement.
Air Carrier. Any U.S. Air Carrier and any "foreign air carrier" (as
defined in the Transportation Code) as to which there is in force a permit
granted under Section 41302 of the Transportation Code.
Aircraft. The Airframe (or any permitted substitute airframe)
together with three Engines (whether each an initial Engine or a Replacement
Engine) whether or not any of such initial or Replacement Engines may from
time to time be installed on such Airframe or may be installed on any other
airframe or on any other aircraft, including any aircraft substituted pursuant
to Section 11.03 of the Lease.
Airframe. The McDonnell Douglas MD-11F aircraft (excluding the
Engines or engines from time to time installed thereon) leased by the Lessor
to the Lessee pursuant to the Lease and the initial Lease Supplement and
having the United States FAA Registration Number initially and manufacturer's
serial number specified in the initial Lease Supplement, including (i) all
Parts in respect thereof and (ii) any Replacement Airframe which may be
substituted pursuant to Section 11.03 of the Lease.
Amendment No. 1 to the Original Tax Indemnity Agreement. Amendment
No. 1 to the Original Tax Indemnity Agreement (Federal Express Corporation
Trust No. N587FE), dated as of May 1, 1997 among the Lessee, the Owner
Participants and the Owner Trustee.
Ancillary Agreement. Any written agreement of the Lessee to which
the Lessor is a party or to which the Lessor has consented in writing
entered into on the Delivery Date or the Refunding Date or any date
thereafter in connection with the transactions contemplated by the
Operative Agreements, as such agreement may be amended and supplemented
from time to time with the consent of the Lessor and delivered to the Owner
Trustee, the Indenture Trustee, the Pass Through Trustee, the Subordination
Agent, each Liquidity Provider and the Owner Participants.
Ancillary Agreement I. The Ancillary Agreement I (Federal Express
Corporation Trust No. N587FE), dated the Delivery Date, as amended and
restated as of the Refunding Date, among the Lessee, the Owner Trustee, not in
its individual capacity, but solely as Owner Trustee, the Owner Participants
and the Indenture Trustee not in its individual capacity, but solely as
Indenture Trustee, as originally executed or as amended, modified or
supplemented with the consent of all the parties thereto.
Ancillary Agreement II. The Ancillary Agreement II (Federal Express
Corporation Trust No. N587FE), dated the Refunding Date, among the Lessee, the
Owner Trustee, not in its individual capacity, but solely as Owner Trustee,
the Owner Participants and the Indenture Trustee not in its individual
capacity, but solely as Indenture Trustee, as originally executed or as
amended, modified or supplemented with the consent of all the parties thereto.
Appraisal. The report prepared by BK Associates, Inc. and delivered
to the Owner Participants on the Delivery Date pursuant to Section 4.01(n) of
the Original Participation Agreement.
Average Life Date. For any Certificate, the date which follows the
prepayment date by a period equal to the Remaining Weighted Average Life of
such Certificate.
Bankruptcy Code. The Federal Bankruptcy Code of 1978, as amended, and
any successor thereto.
Bankruptcy Default. An event specified in Section 16.01(e), (f) or
(g) of the Lease which either does or, with the giving of notice or lapse of
time or both, would constitute an Event of Default.
Basic Rent. The aggregate periodic rent payable for the Aircraft
throughout the Basic Term pursuant to Section 3.02 of the Lease, adjusted
pursuant to Article 3 of the Lease.
Basic Term. The period commencing at the beginning of the day on the
Delivery Date and ending at the end of the day on June 13, 2017, or such
earlier date on which the Lease shall be terminated as provided therein.
Beneficial Interest. The interest of the Owner Participants under
the Trust Agreement.
Bills of Sale. Collectively, the FAA Bill of Sale and the Warranty
Bill of Sale.
Breakage Costs. Has the meaning specified in Schedule II to the
Original Participation Agreement.
Business Day. Any day on which commercial banks are not
authorized or required to close in New York, New York, Memphis, Tennessee
and the city in the United States in which the office or agency is
maintained by the Pass Through Trustee for the payment of the Pass Through
Certificates, and after the Lien of the Indenture is discharged,
Wilmington, Delaware.
Certificates. The Equipment Trust Certificates (Federal Express
Corporation Trust No. N587FE), issued by the Owner Trustee pursuant to the
Indenture and any certificate issued in exchange therefor or replacement
thereof pursuant to the Indenture.
Change in Tax Rate. Any amendment, modification, deletion, addition,
or change to the Code which is enacted into law after the Delivery Date which
changes the highest marginal statutory rate of Federal income tax applicable
to an Owner Participant (other than a change which is in the nature of a
minimum tax).
Citizen of the United States. A citizen of the United States as
defined in Section 40102(a)(15) of the Transportation Code, or any analogous
part of any successor or substituted legislation or regulation at the time in
effect.
Class A Liquidity Provider. Has the meaning specified in Section
1.01 of the Intercreditor Agreement.
Class B Liquidity Provider. Has the meaning specified in Section
1.01 of the Intercreditor Agreement.
Closings. The closing with respect to the acquisition of the Pass
Through Certificates by the Underwriters and the closing with respect to the
refunding of the Original Loan Certificates.
Code. Except as otherwise provided, the Internal Revenue Code of
1986, as amended from time to time.
Corporate Trust Administration. The Corporate Trust Administration
office of the Owner Trustee located at 1100 North Market Street, Rodney Square
North, Wilmington, Delaware 19890-0001, Attention: Corporation Trust
Administration, or such other office at which the Owner Trustee's corporate
trust business shall be administered which the Owner Trustee shall have
specified by notice in writing to the Lessee, the Owner Participants and the
Indenture Trustee.
Corporate Trust Department. The Corporate Trust Department office of
the Indenture Trustee located at 79 South Main Street, Salt Lake City, Utah
84111, Attention: Corporate Trust Department, or such other office at which
the Indenture Trustee's corporate trust business shall be administered which
the Indenture Trustee shall have specified by notice in writing to the Lessee,
the Owner Participants and the Owner Trustee.
CRAF Program. Has the meaning specified in Section 7.01(f) of the
Lease.
Debt Rate. The weighted average (based on Outstanding principal
amount) rate of interest on the Certificates issued pursuant to the Indenture.
Default. Any event or condition which, with the lapse of time or the
giving of notice, or both, would constitute an Event of Default.
Delivery Date. December 13, 1996.
EBO Date. Has the meaning specified in Section 4.02(a)(F) of the
Lease.
EBO Price. Has the meaning specified in Section 4.02(a)(F) of the
Lease.
Engine. Each of the three General Electric CF6-80C2-D1F engines
listed by its manufacturer's serial number in the initial Lease Supplement and
leased pursuant to the Lease, whether or not from time to time installed on
the Airframe or installed on any other airframe or on any other aircraft, and
any Replacement Engine which may from time to time be substituted for an
Engine pursuant to Section 7.02(a)(vii), 10.03, 11.03, 11.04 or 12.02 of the
Lease, together with all Parts related thereto. Except as otherwise provided,
at such time as a Replacement Engine shall be so substituted and the Engine
for which the substitution is made shall be released from the Lien of the
Indenture, such replaced Engine shall cease to be an "Engine" under the Lease.
The term "Engines" means, as of any date of determination, all Engines then
leased to the Lessee pursuant to the Lease.
Engine Consent. The Engine Consent dated as of December 1, 1996,
executed by the Engine Manufacturer.
Engine Manufacturer. General Electric Company, a New York
corporation.
Engine Warranty Assignment. The Engine Warranty Assignment (Federal
Express Corporation Trust No. N587FE), dated as of December 1, 1996
between the Lessor and the Lessee.
Equity Percentage. For any Owner Participant, the fractional
interest, expressed as a percentage, of such Owner Participant's interest in
the Beneficial Interest, calculated by dividing the Commitment of such Owner
Participant (or of such Owner Participant's predecessor in interest) paid on
the Delivery Date by the aggregate of the Commitments paid by all of the Owner
Participants on the Delivery Date. As to Comerica Leasing Corporation
(formerly known as CMCA Lease, Inc.), such Equity Percentage shall be 50% and
as to Norwest Bank Minnesota, National Association, such Equity Percentage
shall be 50%.
ERISA. The Employee Retirement Income Security Act of 1974, as
amended.
ERISA Plan. An employee benefit plan subject to Title I of ERISA, or
an individual retirement account or plan subject to Section 4975 of the Code.
Estimated Expense Amount. Has the meaning specified in Section
10.01(a) of the Participation Agreement.
Event of Default. Each of the events specified in Article 16 of the
Lease.
Event of Loss. Any of the following events with respect to the
Aircraft, the Airframe or any Engine: (i) loss of such property or its use (A)
due to theft or disappearance for a period in excess of 30 days (or such
longer period not to exceed 60 days from the end of such 30 day period if and
so long as the location of such property is known and the Lessee is pursuing
the recovery thereof) or to the end of the Term, if less, unless such event
constitutes an Event of Loss under clause (i)(B) or clause (ii) below, or (B)
due to the destruction, damage beyond economic repair or rendition of such
property permanently unfit for normal use by Lessee for any reason whatsoever;
(ii) any damage to such property which results in an insurance settlement with
respect to such property on the basis of a total loss, or constructive or
compromised total loss; (iii) (1) condemnation, confiscation or seizure of, or
requisition of title to such property by the Government, any foreign
government or purported government or any agency or instrumentality thereof,
or (2) condemnation, confiscation, or seizure of, or requisition or taking of,
use of such property (A) by a foreign government, or instrumentality or agency
of any such foreign government, or any purported government or instrumentality
or agency thereof for a period in excess of 180 days or the end of the Term,
if less, or (B) by the Government for a period extending beyond the Term
provided that no Event of Loss shall be deemed to have occurred, and the Term
shall be extended automatically for a period of up to six months beyond the
end of the Term in the event that the Aircraft or the Airframe or any Engine
is requisitioned by the Government pursuant to an activation as part of the
CRAF Program described in Section 7.02(a)(iv) of the Lease; or (iv) as a
result of any law, rule, regulation, order or other action by the Aeronautics
Authority or other governmental body having jurisdiction, the use of the
Aircraft or Airframe in the normal course of air transportation of cargo shall
have been prohibited for a period of four (4) consecutive months, unless the
Lessee, prior to the expiration of such four (4) month period, shall be
diligently carrying forward all steps which are necessary and desirable to
permit the normal use of the Aircraft or Airframe provided, however, that an
Event of Loss shall be deemed to have occurred if (x) the Lessee fails to
continue diligently carrying forward all such steps or (y) the use of the
Aircraft or the Airframe in the normal course of air transportation of cargo
shall have been prohibited for a period of an additional 8 months following
such 4 month period or (z) unless waived by the Lessor, the Term shall have
expired. The date of such Event of Loss shall be (t) the 30th day or the 90th
day, as the case may be, following loss of such property or its use due to
theft or disappearance; (u) the date of any destruction, damage beyond
economic repair or rendition of such property permanently unfit for normal
use; (v) the date of any insurance settlement on the basis of a total loss or
constructive or compromised total loss; (w) the date of any condemnation,
confiscation, seizure or requisition of title of such property; (x) the
earlier of the 181st day following condemnation, confiscation, seizure or
requisition for use of such property by a foreign government or
instrumentality or agency thereof or the end of the Term; (y) the last day of
the Term in the case of requisition for use of such property by the Government
or (z) the last day of the 4 month or additional 8 month period, referred to
in clause (iv) above or, if earlier, the last day of the Term (unless waived
by the Lessor). An Event of Loss with respect to the Aircraft shall be deemed
to have occurred if any Event of Loss occurs with respect to the Airframe.
Excepted Payments. Collectively, (i) indemnity or other payments of
expenses paid or payable by the Lessee in respect of any Owner Participant,
the Owner Trustee in its individual capacity or any of their respective
successors, permitted assigns, directors, officers, employees, servants and
agents or Affiliates, pursuant to Article 8, 9, or 10 and Section 15.01 of the
Participation Agreement or any indemnity hereafter granted to any Owner
Participant or the Owner Trustee in its individual capacity pursuant to
Section 7.01(e), Article 9 or Section 11.03(a) of the Lease or Section 15.01
of the Participation Agreement, (ii) proceeds of public liability insurance
(or government indemnities in lieu thereof) in respect of the Aircraft payable
as a result of insurance claims paid for the benefit of, or losses suffered
by, the Owner Trustee or the Indenture Trustee in their respective individual
capacities or by any Owner Participant, or their respective successors,
permitted assigns or Affiliates, (iii) proceeds of insurance maintained with
respect to the Aircraft by any Owner Participant (whether directly or through
the Owner Trustee) maintained in accordance with the provisions of but not
required under Article 13 of the Lease, (iv) all right, title and interest of
any Owner Participant in, to and under the Tax Indemnity Agreement and
payments of Supplemental Rent by the Lessee in respect of any amounts payable
under the Tax Indemnity Agreement, (v) any amounts payable by the Lessee to
any Owner Participant or the Owner Trustee in its individual capacity,
after the release thereof from the Lien of the Indenture, (vi) subject to
Section 3.05 of the Lease, payments constituting increases in Basic Rent
attributable to payments arising pursuant to Section 5 of the Tax Indemnity
Agreement, (vii) any right to demand, collect or otherwise receive and
enforce the payment of any amount described in clauses (i) through (vi)
above and (viii) any payments in respect of interest to the extent
attributable to the payments referred to in clauses (i) through (vi) above.
Expense; Expenses. Have the meaning specified in Section 9.01(a) of
the Participation Agreement.
FAA Bill of Sale. The bill of sale for the Airframe on AC Form
8050-2, or such other form as may be approved by the Aeronautics Authority,
executed by the Lessee in favor of the Owner Trustee and dated the Delivery
Date.
Fair Market Renewal Term. A term with respect to which the Lessee
has exercised its option to renew the Lease pursuant to the second paragraph
of Section 4.01(a) thereof and with respect to which the conditions set forth
in such Section 4.01(a) are met.
Fair Market Rental. An amount determined on the basis of, and equal
in amount to, the rental which would be obtained in an arm's-length
transaction between an informed and willing lessee and an informed and willing
lessor unaffiliated with such lessee, neither being under any compulsion to
lease. In such determination, except for purposes of Section 17.01 of the
Lease, it shall be assumed that the Aircraft is in at least the condition
required under the Lease in the case of return of the Aircraft pursuant to
Article 12 of the Lease and Fair Market Rental shall be determined in
accordance with the provisions of Section 4.03 of the Lease. For purposes of
Section 17.01 of the Lease, such determination shall be made on an "as is,
where is" basis by a qualified independent appraiser selected by the Lessor
and the costs and expenses of the appraisal shall be borne by the Lessee,
unless the Lessor has not obtained possession of the Aircraft pursuant to such
Section 17.01, in which case an appraiser shall not be appointed and such Fair
Market Rental shall be deemed to be zero.
Fair Market Value. An amount determined on the basis of, and equal
in amount to, the value which would be obtained in an arm's-length transaction
between an informed and willing purchaser under no compulsion to buy and an
informed and willing seller unaffiliated with such purchaser and under no
compulsion to sell, assuming the Aircraft (or other property) is unencumbered
by the Lease. In such determination, except for purposes of Section 17.01 of
the Lease, it shall be assumed that the Aircraft is in at least the condition
required under the Lease in the case of return of the Aircraft pursuant to
Article 12 of the Lease and Fair Market Value shall be determined in
accordance with the provisions of Section 4.03 of the Lease. For purposes of
Section 17.01 of the Lease, such determination shall be made on an "as is,
where is" basis by a qualified independent appraiser selected by the Lessor
and the costs and expenses of the appraisal shall be borne by the Lessee,
unless the Lessor has not obtained possession of the Aircraft free and clear
of all Liens and unencumbered by the Lease pursuant to such Section 17.01, in
which case an appraiser shall not be appointed and such Fair Market Value
shall be deemed to be zero.
Federal Aviation Administration; FAA. The United States Federal
Aviation Administration and any successor agency or agencies thereto.
Final Drawing. Has the meaning specified in Section 1.01 of the
Intercreditor Agreement.
Fixed Renewal Rent. Semi-annual payments of rent during the Fixed
Renewal Term equal to the lesser of (i) Fair Market Rental as determined as of
the commencement of such Fixed Renewal Term and (ii) the amount set forth in
Ancillary Agreement II.
Fixed Renewal Term. The term with respect to which the Lessee has
exercised its option to renew the Lease pursuant to the first paragraph of
Section 4.01(a) thereof and with respect to which the conditions set forth in
such Section 4.01(a) are met.
FSB. First Security Bank, National Association, a national banking
association.
Government. The United States of America or an agency or
instrumentality thereof the obligations of which bear the full faith and
credit of the United States of America.
GTA. The General Terms Agreement dated as of July 3, 1991 between
the Engine Manufacturer and the Lessee related to the purchase by the Lessee
of the Engines as originally executed or as modified, amended or supplemented
in accordance with the terms thereof, but only insofar as the General Terms
Agreement relates to the Engines, to the extent assigned to the Owner Trustee
pursuant to the Engine Warranty Assignment.
Holder of a Certificate; Certificate Holder; Holder. As of any
particular time, the Person in whose name a Certificate shall be registered
(but not including the holder of any Pass Through Certificate).
Indemnitee. Each of WTC, in its individual capacity and as Owner
Trustee and Lessor, the Agent (to the extent set forth in Articles 8 and 9 of
the Original Participation Agreement), the Subordination Agent, in its
individual capacity and in its capacity as Subordination Agent, each Liquidity
Provider, each Owner Participant, the Owner Participant Guarantor, the
Original Loan Participant (to the extent set forth in Articles 8 and 9 of the
Original Participation Agreement), the Original Indenture Trustee, in its
individual capacity and as trustee, the Indenture Trustee, in its individual
capacity and as trustee, and any successor (including any trustee which may
succeed to the Lessor's interest under the Lease), Affiliate, assign, officer,
director, employee, agent and servant of any of the foregoing, the Lessor's
Estate and the Trust Indenture Estate. Neither the Pass Through Trustee nor
any holder of a Pass Through Certificate shall be deemed to be an Indemnitee.
Indenture. The Trust Indenture and Security Agreement (Federal
Express Corporation Trust No. N587FE), dated as of December 1, 1996, as
amended and restated as of May 1, 1997, between the Lessor and the Indenture
Trustee, as supplemented by the Indenture and Security Agreement Supplement.
Indenture and Security Agreement Supplement. The Indenture and
Security Agreement Supplement No. 1 (Federal Express Corporation Trust No.
N587FE), dated December 13, 1996, substantially in the form of Exhibit A to
the Indenture.
Indenture Default. Any event or condition which, with the lapse of
time or the giving of notice, or both, would constitute an Indenture Event of
Default.
Indenture Documents. Has the meaning specified in the Granting
Clause of the Indenture.
Indenture Event of Default. Each of the events specified in Section
7.01 of the Indenture.
Indenture Trustee. First Security Bank, National Association, a
national banking association, not in its individual capacity but solely as
Indenture Trustee under the Indenture.
Indenture Trustee's Liens. Any Lien against, on or with respect to
the Aircraft, the Lessor's Estate or the Trust Indenture Estate or any part
thereof resulting from (i) claims against the Indenture Trustee not related to
the administration of the Trust Indenture Estate or any transactions pursuant
to the Indenture or any document included in the Trust Indenture Estate, (ii)
any act or omission of the Indenture Trustee which is not related to the
transactions contemplated by the Operative Agreements or is in violation of
any of the terms of the Operative Agreements or (iii) Taxes imposed against
the Indenture Trustee in its individual capacity against which the Lessee has
not indemnified (and is not obligated to indemnify) the Indenture Trustee in
such capacity.
Independent Appraisal. An appraisal conducted pursuant to Section
4.03 of the Lease.
Independent Investment Banker. An independent investment banking
institution of national standing appointed by the Lessee that is independent
in fact, does not have any direct financial interests, or any material
indirect financial interest, in the Lessee or any Affiliate of the Lessee, and
is not connected with the Lessee or any Affiliate of the Lessee, as an
officer, employee, promoter, underwriter, trustee, partner, director or Person
performing similar functions; provided, that if the Indenture Trustee shall
not have received written notice of such an appointment at least 10 days prior
to the Prepayment Date, "Independent Investment Banker" shall mean such an
institution appointed by the Indenture Trustee.
Intercreditor Agreement. The Intercreditor Agreement dated as of May
1, 1997, among the Pass Through Trustee, the Class A Liquidity Provider, the
Class B Liquidity Provider and the Subordination Agent.
Interest Drawing. Has the meaning specified in Section 1.01 of the
Intercreditor Agreement.
Invoice. The invoice for the Aircraft given by the Lessee to the
Lessor.
Lease. The Lease Agreement (Federal Express Corporation Trust No.
N587FE), dated as of December 1, 1996, as amended and restated as of May 1,
1997, entered into by the Lessor and the Lessee concurrently with the
execution and delivery of the Indenture, including, without limitation,
supplementation by one or more Lease Supplements entered into pursuant to the
applicable provisions of the Lease.
Lease Supplement. The Lease Supplement No. 1 (Federal Express
Corporation Trust No. N587FE), dated December 13, 1996, substantially in the
form of Exhibit A to the Lease.
Lease Term. The period commencing on the Delivery Date and ending at
the end of the Basic Term.
Lessee. Federal Express Corporation, a Delaware corporation.
Lessee Documents. Has the meaning set forth in Section 6.01(b) of
the Participation Agreement.
Lessor. Wilmington Trust Company, a Delaware banking corporation,
not in its individual capacity but solely as Owner Trustee under the Trust
Agreement.
Lessor's Estate. All estate, right, title and interest of the Owner
Trustee in and to the Aircraft, the Lease, any Lease Supplement, the
Participation Agreement, the Bills of Sale, the Modification Agreement, the
GTA, the Engine Warranty Assignment, the Engine Consent, any warranty with
respect to the Airframe and the Engines, all amounts of Basic Rent, Renewal
Rent and Supplemental Rent, including without limitation, insurance proceeds
(other than insurance proceeds payable to or for the benefit of either the
Owner Trustee in its individual capacity or any Owner Participant) and
requisition, indemnity or other payments of any kind for or with respect to
the Aircraft (except amounts owing to any Owner Participant or to the Owner
Trustee in its individual capacity, or to any of their respective directors,
officers, employees and agents pursuant to Articles 8 and 9 of the
Participation Agreement). Notwithstanding the foregoing, "Lessor's Estate"
shall not include any Excepted Payment.
Lessor's Liens. Liens against, on or with respect to the Aircraft,
the Lessor's Estate or the Trust Indenture Estate or any part thereof, title
thereto or any interest therein arising as a result of (i) claims against the
Lessor, in its individual capacity or as Owner Trustee, any Owner Participant
or any Affiliate of such Owner Participant, in each case not related to the
transactions contemplated by the Operative Agreements, (ii) acts or omissions
of the Lessor in its individual capacity or as Owner Trustee, and, in the case
of the Lessor in its individual capacity, arising from its gross negligence or
willful misconduct either not related to the transactions contemplated by or
expressly prohibited under the Operative Agreements and any act or omission of
any Owner Participant or any Affiliate of such Owner Participant which is not
related to the transactions contemplated by the Operative Agreements or is in
violation of any of the terms of the Operative Agreements, (iii) Taxes or
Expenses imposed against the Lessor, in its individual capacity or as Owner
Trustee, or any Owner Participant or any Affiliate of such Owner Participant,
the Lessor's Estate or the trust created by the Trust Agreement which are not
required to be indemnified against by the Lessee pursuant to the Tax Indemnity
Agreement or by reason of Section 8.01(b) or 9.01(b) of the Participation
Agreement, or (iv) claims against the Lessor or any Owner Participant arising
from the voluntary transfer by the Lessor or any Owner Participant of its
interests in the Aircraft other than a transfer of the Aircraft resulting from
an action or at the direction of the Lessee pursuant to Section 4.02(a) or
Article 8, 9, 10 or 11 of the Lease and other than a transfer pursuant to the
exercise of the remedies set forth in Article 17 of the Lease.
Lien. Any mortgage, pledge, lien, charge, encumbrance, lease or
security interest or other similar interest.
Liquidity Facility. Has the meaning specified in Section 1.01 of the
Intercreditor Agreement.
Liquidity Provider. Has the meaning specified in Section 1.01 of the
Intercreditor Agreement.
Loss Payee. Has the meaning specified in Section 13.02(b)(i) of the
Lease.
Majority in Interest of Certificate Holders. As of a particular date
of determination, the Holders of more than 50% of the aggregate unpaid
principal amount of all Certificates outstanding as of such date excluding for
purposes of this definition any Certificates held by (i) the Owner Trustee or
any Owner Participant unless all Certificates then outstanding shall be held
by such Owner Participant, (ii) the Lessee or (iii) any Affiliate of any
thereof.
Majority in Interest of Owner Participants. As of a particular date
of determination, the Owner Participants holding more than 50% of the
Beneficial Interest.
Make-Whole Premium. An amount determined as of the day before the
applicable Prepayment Date (or date of purchase, as the case may be) which an
Independent Investment Banker determines to be equal to the excess, if any, of
(i) the present value of the remaining scheduled payments of such principal
amount or portion thereof and interest thereon (excluding interest accrued
from the immediately preceding Payment Date to such Prepayment Date or date of
purchase, as the case may be) to the Maturity of such Certificate in
accordance with generally accepted financial practices assuming a 360-day year
consisting of twelve 30-day months at a discount rate equal to the Treasury
Yield, all as determined by the Independent Investment Banker over (ii) the
outstanding principal amount of such Certificate plus accrued interest.
Manufacturer. McDonnell Douglas Corporation, a Maryland corporation.
Maturity. With respect to any Certificate, the date on which the
final principal amount of such Certificate is scheduled to be due and payable.
Modification Agreement. The Aircraft Modification Agreement dated as
of December 1, 1995 between the Lessee and the Manufacturer providing for the
refurbishing and reconfiguration of the Aircraft including any warranties
relating thereto, but only to the extent that the foregoing relates to the
Aircraft, to the extent assigned to the Owner Trustee pursuant to the Warranty
Bill of Sale.
Moody's. Moody's Investors Service, Inc.
Net Present Value of Rents. The net present value, as of the
Delivery Date, of Basic Rent set forth in Schedule II of the Lease, discounted
at a rate per semi-annual period equal to the Debt Rate.
Non-U.S. Person. Any Person other than a U.S. Person.
Obsolete Parts. Parts which the Lessee in good faith determines to
be obsolete or no longer suitable or appropriate for use on the Airframe or
any Engine.
Officer's Certificate. When delivered pursuant to the Indenture, a
certificate signed by a Responsible Officer of the Lessee or the Owner
Trustee, as the case may be, and delivered to the Indenture Trustee. Each
such certificate shall include the statements provided for in Section 15.07 of
the Indenture.
Operative Agreements. The Participation Agreement, the Trust
Agreement, the Bills of Sale, the Modification Agreement, the GTA, the Engine
Warranty Assignment, the Lease, the Lease Supplement, the Owner Participant
Guaranty, the Owner Trustee Guaranty, if any, any Ancillary Agreement entered
into by or with the written consent of the Indenture Trustee, which by its
terms is an Operative Agreement, the Certificates outstanding at the time of
reference, the Indenture, the Indenture and Security Agreement Supplement, the
Engine Consent, each Liquidity Facility, the Intercreditor Agreement and the
Tax Indemnity Agreement.
Opinion of Counsel. When delivered pursuant to the Indenture, a
written opinion of legal counsel, who in the case of counsel (a) for the
Lessee may be (i) an attorney employed by the Lessee who is generally
empowered to deliver such written opinions, (ii) Davis Polk & Wardwell or a
successor firm or (iii) other counsel designated by the Lessee and reasonably
satisfactory to the Indenture Trustee and (b) for the Owner Trustee or the
Indenture Trustee, an attorney selected by such Person and, in the case of the
Owner Trustee, reasonably satisfactory to the Indenture Trustee.
Original Agreements. The documents and instruments delivered on the
Delivery Date in connection with the transactions contemplated by the Original
Participation Agreement.
Original Ancillary Agreement I. The Ancillary Agreement I (Federal
Express Corporation Trust No. N587FE), among the Lessee, the Owner
Participants, the Indenture Trustee and the Owner Trustee as it was originally
executed on the Delivery Date.
Original Indenture. The Trust Indenture, Mortgage and Security
Agreement (Federal Express Corporation Trust No. N587FE), dated as of December
1, 1996, between the Owner Trustee and the Indenture Trustee, which together
with the Indenture and Security Agreement Supplement No. 1 (Federal Express
Corporation Trust No. N587FE), dated December 13, 1996 attached thereto was
recorded as one instrument by the FAA on January 27, 1997 and assigned
Conveyance Number T053253.
Original Indenture Trustee. State Street Bank and Trust Company, a
Massachusetts trust company, not in its individual capacity but solely as
Original Indenture Trustee under the Original Indenture.
Original Lease. The Lease Agreement (Federal Express Corporation
Trust No. N587FE), dated as of December 1, 1996, between the Owner Trustee as
lessor, and the Lessee, which together with Lease Supplement No. 1 (Federal
Express Corporation Trust No. N587FE), dated December 13, 1996 attached
thereto was recorded as one instrument by the FAA on January 27, 1997 and
assigned Conveyance Number T053254.
Original Loan Certificates. The loan certificates issued on the
Delivery Date to the Original Loan Participant.
Original Loan Participant. The entities listed on Schedule I to the
Original Participation Agreement and their successors and assigns (other than
any assignees in connection with the Refunding Date).
Original Participation Agreement. The Participation Agreement
(Federal Express Corporation Trust No. N587FE), dated as of December 1, 1996,
among the Lessee, the Owner Participants, the Original Indenture Trustee, the
Owner Trustee and the Original Loan Participant as it was originally executed
on December 13, 1996.
Original Tax Indemnity Agreement. The Tax Indemnity Agreement
(Federal Express Corporation Trust No. N587FE), among the Lessee, the Owner
Participants and the Owner Trustee as it was originally executed as of
December 1, 1996.
Original Trust Agreement. The Trust Agreement (Federal Express
Corporation Trust No. N587FE), dated as of December 1, 1996, among the Owner
Participants and the Owner Trustee as it was originally executed and filed
with the FAA on December 13, 1996.
Outstanding. When used with respect to Certificates, as of the date
of determination and subject to the provisions of Section 10.04 of the
Indenture, all Certificates theretofore executed and delivered under the
Indenture, with the exception of the following:
(i) Certificates theretofore cancelled by the Indenture Trustee or
delivered to the Indenture Trustee for cancellation pursuant to
Section 2.08 of the Indenture or otherwise;
(ii) Certificates for which prepayment money in the necessary amount
has been theretofore deposited with the Indenture Trustee in trust
for the Holders of such Certificates pursuant to Section 14.01 of the
Indenture; provided, that if such Certificates are to be prepaid,
notice of such prepayment has been duly given pursuant to the
Indenture or provision therefor satisfactory to the Indenture Trustee
has been made; and
(iii) Certificates in exchange for or in lieu of which other
Certificates have been executed and delivered pursuant to Article II
of the Indenture.
Owner Participant or Owner Participants. The trustors originally
named in the Trust Agreement and any successors thereto, and any Person to
which any Owner Participant transfers, in accordance with the Trust Agreement,
its right, title and interest in and to the Operative Agreements and the
Lessor's Estate.
Owner Participant Guarantor. Comerica Bank, a Michigan banking
association, and any other provider, if any, of an Owner Participant Guaranty.
Owner Participant Guaranty. The Owner Participant Guaranty dated the
Delivery Date by Comerica Bank in favor of the Lessee, the Owner Trustee, the
Indenture Trustee and the Pass Through Trustee and any guaranty delivered in
compliance with Article 5 of the Trust Agreement.
Owner Trustee. WTC, not in its individual capacity except as
otherwise expressly stated, but solely as Owner Trustee under the Trust
Agreement.
Owner Trustee Guarantor. The provider, if any, of an Owner Trustee
Guaranty.
Owner Trustee Guaranty. Any guaranty delivered in compliance with
Section 11.01(b)(ii) of the Participation Agreement.
Owners' Economic Return. The Owner Participants' anticipated net
after-tax yield and aggregate after-tax cash flow during the Basic Term,
utilizing the multiple investment sinking fund method of analysis, computed on
the basis of the same methodology and assumptions as were utilized by the
Owner Participants in determining Basic Rent, Stipulated Loss Value and
Termination Value percentages and EBO Price, as such assumptions may be
adjusted for events which have been the basis of adjustments to Rent pursuant
to Section 3.04 of the Lease.
Participation Agreement. The Participation Agreement (Federal Express
Corporation Trust No. N587FE), dated as of December 1, 1996, as amended and
restated as of May 1, 1997, among the Lessee, the Original Loan Participant,
the Owner Trustee not in its individual capacity except as otherwise expressly
provided therein, but solely as owner trustee, the Owner Participants, the
Original Indenture Trustee, the Indenture Trustee not in its individual
capacity except as otherwise expressly provided therein, but solely as
indenture trustee, the Pass Through Trustee not in its individual capacity
except as otherwise expressly provided therein, but solely as pass through
trustee and the Subordination Agent not in its individual capacity except as
otherwise expressly provided therein, but solely as subordination agent.
Parts. All appliances, parts, components, instruments, appurtenances,
accessories, furnishings and other equipment of whatever nature (other than
complete Engines or engines) which may from time to time be incorporated or
installed in or attached to the Airframe or any Engine title or, prior to
replacement thereof in accordance with the Lease, which may be removed
therefrom.
Pass Through Agreement. The Pass Through Trust Agreement dated as of
May 1, 1997 between the Lessee and the Pass Through Trustee.
Pass Through Certificates. Any of the Pass Through Certificates,
1997-1-A, the Pass Through Certificates, 1997-1-B or the Pass Through
Certificates, 1997-1-C, in each case as issued by the related Pass Through
Trust; and "Pass Through Certificates" means all of the Pass Through
Certificates issued by each of the Pass Through Trusts.
Pass Through Closing Date. The Business Day on which the sale of the
Pass Through Certificates to the Underwriters pursuant to the Underwriting
Agreement takes place.
Pass Through Trust. The Federal Express Corporation 1997-1 Pass
Through Trust Class A, Federal Express Corporation 1997-1 Pass Through Trust
Class B and Federal Express Corporation 1997-1 Pass Through Trust Class C, in
each case formed pursuant to the related Series Supplement in accordance with
the Pass Through Agreement; and "Pass Through Trusts" means all of such Pass
Through Trusts.
Pass Through Trustee. First Security Bank, National Association, a
national banking association, in its capacity as Pass Through Trustee under
the Pass Through Agreement and each Pass Through Trust.
Past Due Rate. In respect of (A) any amount payable to the Owner
Participants or the Owner Trustee a rate per annum during the period from and
including the due date to but excluding the date on which such amount is paid
in full equal to 2% plus the Debt Rate and (B) any principal of or interest on
any Certificate or any other amount payable under the Indenture, any
Certificate or any other Operative Agreement that is not paid when due
(whether at Maturity, by acceleration, by optional or mandatory prepayment or
otherwise) to any Holder, the Indenture Trustee or the Pass Through Trustee, a
rate per annum during the period from and including the due date to but
excluding the date on which such amount is paid in full equal to (i) in the
case of any such amount payable to the Holder of any Certificate, 2% plus the
interest rate applicable to such Certificate and (ii) in the case of any other
such amount, 2% plus the Debt Rate.
Payment Date. Each January 15 and July 15 commencing on July 15,
1997.
Payment Default. Any event specified in Section 16.01(a) or 16.01(b)
of the Lease which with the giving of notice or lapse of time or both would
constitute an Event of Default.
Permitted Investments. Those investments enumerated in Section
23.01(a) (i), (ii), (iii) and (iv) of the Lease.
Person. Any individual, sole proprietorship, partnership, joint
venture, joint stock company, trust, unincorporated organization, association,
corporation, institution, entity or government (federal, state, local, foreign
or any agency, instrumentality, division or body thereof).
Preliminary Notice. Has the meaning specified in Section 4.01(a) of
the Lease.
Premium Termination Date. With respect to the Series A Certificates,
December 27, 2011, with respect to the Series B Certificates, February 5, 2010
and with respect to the Series C Certificates, March 22, 2007.
Prepayment Date. Has the meaning specified in Section 6.02(b) of the
Indenture.
Prepayment Price. Has the meaning specified in Section 6.02(b) of
the Indenture.
Principal Amount. With respect to a Certificate means the stated
original principal amount of such Certificate and, with respect to all
Certificates, means the aggregate stated original principal amounts of all
Certificates.
Property. Any right or interest in or to property of any kind
whatsoever, whether real, personal or mixed and whether tangible or
intangible.
Proposed Termination Date. Has the meaning specified in Section
10.01(a) of the Lease.
Purchase Price. The amount specified as such in Ancillary Agreement
II.
Record Date. With respect to Payment Dates under the Indenture
(except a date for payment of defaulted interest), December 31 for January 15
Payment Dates and June 30 for July 15 Payment Dates, whether or not such date
is a Business Day.
Recourse Amount. Has the meaning specified in Section 17.10 of the
Participation Agreement.
Refinancing. A non-recourse loan to the Lessor arranged pursuant to
Section 15.01 of the Participation Agreement.
Refunding Date. A Business Day on which the refunding of the
Original Loan Certificates occurs, the expected date thereof having been
specified by the Lessee in a written notice given to the parties to the
Participation Agreement and the Underwriters at least three (3) Business Days
prior to such expected Refunding Date.
Register. Has the meaning set forth in Section 3.02 of the Indenture.
Registrar. Has the meaning set forth in Section 3.02 of the
Indenture.
Remaining Weighted Average Life. On a given date with respect to any
Certificate the number of days equal to the quotient obtained by dividing (i)
the sum of each of the products obtained by multiplying (a) the amount of each
then remaining scheduled payment of principal of such Certificate by (b) the
number of days from and including such prepayment date to but excluding the
dates on which each such payment of principal is scheduled to be made; by (ii)
the then outstanding principal amount of such Certificate.
Renewal Rent. The amount payable by the Lessee as rent in accordance
with Section 4.01 of the Lease during any Renewal Term.
Renewal Term. Any Fixed Renewal Term or Fair Market Renewal Term with
respect to which the Lessee has exercised its option to renew the Lease
pursuant to Section 4.01(a) thereof.
Rent. All payments due from the Lessee under the Lease as Basic Rent,
Renewal Rent and Supplemental Rent, collectively.
Rent Payment Date. June 13, 2017 and each January 15 and July 15
commencing on July 15, 1997, and continuing thereafter during the Term.
Reoptimization Date. Has the meaning specified in Section 15.02(a)
of the Participation Agreement.
Replacement Aircraft. Any aircraft substituted for the Aircraft
pursuant to Section 11.03(a) of the Lease.
Replacement Airframe. Has the meaning set forth in Section 11.03 of
the Lease.
Replacement Engine. A General Electric CF6-80C2-D1F engine (or an
engine of the same or another manufacturer) of equal or greater value,
remaining useful life and utility as the Engine being replaced, together with
all Parts relating to such engine; provided, however, that if such replacement
engine is not a General Electric CF6-80C2-D1F engine, such replacement engine
must then be commonly used in the commercial aviation industry on McDonnell
Douglas MD-11 airframes.
Responsible Officer. With respect to the Owner Trustee (except for
purposes of the Trust Agreement in which case the definition of Responsible
Officer set forth in Section 3.10 of the Trust Agreement is applicable) or the
Indenture Trustee, any officer in its Corporate Trust Administration, as the
case may be, designated by such Person to perform obligations under the
Operative Agreements, and with respect to any other party, any corporate
officer or (except in the case of any Owner Participant) other employee of a
party who, in the normal performance of his or her operational
responsibilities, with respect to the subject matter of any covenant,
agreement or obligation of such party pursuant to any Operative Agreement,
would have responsibility for and knowledge of such matter and the
requirements of any Operative Agreement with respect thereto.
S&P. Standard & Poor's Ratings Group.
SEC. The Securities and Exchange Commission of the United States and
any successor agencies or authorities.
Secured Obligations. Has the meaning specified in the Granting
Clause of the Indenture.
Securities Act. The Securities Act of 1933, as amended.
Series "A" or "Series A Certificates". Certificates issued and
designated as "Series A" under the Indenture, in the Principal Amount and
maturities and bearing interest as specified in Exhibit B to the Indenture
under the heading "Series A".
Series "B" or "Series B Certificates". Certificates issued and
designated as "Series B" under the Indenture, in the Principal Amount and
maturities and bearing interest as specified in Exhibit B to the Indenture
under the heading "Series B".
Series "C" or "Series C Certificates". Certificates issued and
designated as "Series C" under the Indenture, in the Principal Amount and
maturities and bearing interest as specified in Exhibit B to the Indenture
under the heading "Series C".
Series Supplement or Series Supplements. The Series Supplement
1997-1-A to be executed and delivered by the Lessee and the Pass Through
Trustee, the Series Supplement 1997-1-B to be executed and delivered by the
Lessee and the Pass Through Trustee or the Series Supplement 1997-1-C to be
executed and delivered by the Lessee and the Pass Through Trustee.
Sinking Fund Redemption Date. Has the meaning specified in Section
6.06 of the Indenture.
Sinking Fund Redemption Price. Has the meaning specified in Section
6.06 of the Indenture.
Special Aviation Counsel. Daugherty, Fowler & Peregrin.
Stipulated Loss Value. As of any Stipulated Loss Value Determination
Date during the Basic Term, the amount determined by multiplying the Purchase
Price by the percentage set forth in Schedule III of the Lease under the
heading "Stipulated Loss Value Factor" opposite such date (as such Schedule
III may be adjusted from time to time as provided in Section 3.04 of the
Lease), and during any Renewal Term, the amount determined pursuant to Section
4.01(b) of the Lease. Notwithstanding any other provisions of the Lease or
the Participation Agreement or the Indenture, each Stipulated Loss Value for
the Aircraft shall be, under any circumstances and in any event, an amount,
together with so much of the arrears portion of Basic Rent due and owing
through the date of payment of Stipulated Loss Value as does not constitute an
Excepted Payment, at least sufficient to pay in full as of such date of
payment the aggregate unpaid principal amount of and accrued interest on the
Certificates outstanding on such date of payment. Subject to the immediately
preceding sentence, it is understood and agreed that the amounts set forth on
Schedule III of the Lease, for dates other than Rent Payment Dates on which
arrears Basic Rent is due, fully reflect appropriate Basic Rent accruals and
credits of unearned Basic Rent and, accordingly, no further accrual or credit
shall be required whenever Stipulated Loss Value is to be calculated with
reference to any such date.
Stipulated Loss Value Determination Date. Each date set forth on
Schedule III of the Lease.
Subordination Agent. First Security Bank, National Association, a
national banking association, not in its individual capacity but solely as
Subordination Agent.
Supplemental Rent. (a) All amounts, liabilities and obligations
which the Lessee assumes or agrees to perform or pay under the Lease or under
the Participation Agreement or Tax Indemnity Agreement or any Ancillary
Agreement or any other Operative Agreement to FSB, the Lessor, the Owner
Participant, the Indenture Trustee, the Subordination Agent, any Liquidity
Provider or others, including, without limitation, payments of Stipulated Loss
Value, EBO Price and amounts calculated by reference to Termination Value, and
all amounts required to be paid by Lessee under the agreements, covenants and
indemnities contained in the Lease or in the Participation Agreement or the
Tax Indemnity Agreement or any other Operative Agreement (other than Basic
Rent) and (b) all amounts that the Owner Trustee is obligated to pay in
accordance with clause (b) of the last paragraph of Section 2.04 of the
Indenture.
Tax. Has the meaning set forth in Section 8.01(a) of the
Participation Agreement.
Tax Indemnity Agreement. The Original Tax Indemnity Agreement as
amended by Amendment No. 1 to the Original Tax Indemnity Agreement.
Term. The Basic Term and any Renewal Term unless the Lease is
terminated earlier pursuant to its terms.
Termination Date. A Rent Payment Date during the Basic Term that is
on or after the fifth anniversary of the Delivery Date in the case of Article
10 of the Lease, and in the case of (i) Section 4.02(a)(A) of the Lease the
Rent Payment Date falling on July 15, 2009 or January 15, 2012, as the case
may be, (ii) Section 4.02(a)(D) or (E) of the Lease, a Rent Payment Date that
is on or after the fifth anniversary of the Delivery Date and (iii) Section
4.02(a)(F) of the Lease, January 15, 2014.
Termination Value. As of any Termination Date, the amount determined
by multiplying the Purchase Price by the percentage set forth in Schedule IV
of the Lease under the heading "Termination Value Factor" opposite such
Termination Date (as such Schedule IV may be adjusted from time to time as
provided in Section 3.04 of the Lease). Notwithstanding any other provisions
of the Lease, the Participation Agreement or the Indenture, each Termination
Value shall be, under any circumstances and in any event, an amount, together
with so much of the arrears portion of Basic Rent due and owing through the
date of payment of any amount calculated by reference to Termination Value as
does not constitute an Excepted Payment, at least sufficient to pay in full as
of such date of payment the aggregate unpaid principal amount of and accrued
interest on the Certificates outstanding on such date of payment. Subject to
the immediately preceding sentence, it is understood and agreed that the
amounts set forth on Schedule IV of the Lease, for dates other than Rent
Payment Dates on which arrears Basic Rent is due, fully reflect appropriate
Basic Rent accruals and credits of unearned Basic Rent and, accordingly, no
further accrual or credit shall be required whenever Termination Value is to
be calculated with reference to any such date.
Transaction Costs. Those costs and expenses set forth in Section
10.01(a) of the Participation Agreement.
Transportation Code. Title 49 of the United States Code, as amended
and in effect on the date of the Lease or as subsequently amended, or any
successor or substituted legislation at the time in effect and applicable, and
the regulations promulgated pursuant thereto.
Treasury Yield. At the time of determination with respect to any
Certificate, the interest rate (expressed as a semi-annual equivalent and as a
decimal and, in the case of United States Treasury bills, converted to a bond
equivalent yield) determined to be the per annum rate equal to the semi-annual
yield to maturity for United States Treasury securities maturing on the
Average Life Date on such Certificate and trading in the public securities
markets either as determined by interpolation between the most recent weekly
average yield to maturity for two series of United States Treasury securities,
trading in public securities markets, (i) one maturing as close as possible to,
but earlier than, the Average Life Date of such Certificate and (ii) the other
maturing as close as possible to, but later than, the Average Life Date of
such Certificate. In each case as published in the most recent H.15(519) or,
if a weekly average yield to maturity for United States Treasury securities
maturing on the Average Life Date of such Certificate is reported on the most
recent H.15 (519), such weekly average yield to maturity as published in such
H.15(919). "H.15(519)" means the weekly statistical release designated as
such, or any successor publication, published by the Board of Governors of the
Federal Reserve System. The date of determination of a Make-Whole Premium
will be the third Business Day prior to the applicable prepayment date and the
"most recent H.15(519)" means the H.15(519) published prior to the close of
business on the third Business Day prior to the applicable prepayment date.
Trust Agreement. The Trust Agreement (Federal Express Corporation
Trust No. N587FE), dated as of December 1, 1996, as amended and restated as of
May 1, 1997, among the Owner Participants and the Owner Trustee in its
individual capacity.
Trust Estate. The Lessor's Estate.
Trust Indenture Act. The Trust Indenture Act of 1939, as amended.
Trust Indenture Estate. All estate, right, title and interest of the
Indenture Trustee in and to any of the property, rights, interests and
privileges granted to the Indenture Trustee pursuant to the Granting Clause of
the Indenture, other than Excepted Payments and any and all other rights of
the Owner Trustee or any Owner Participant expressly reserved to the Owner
Trustee or any Owner Participant pursuant to the Indenture.
Underwriters. Morgan Stanley & Co. Incorporated, First Chicago
Capital Markets, Inc., Goldman, Sachs & Co. and J.P. Morgan & Co.
Underwriting Agreement. The Underwriting Agreement dated May 22, 1997
among the Lessee and the Underwriters.
United States, U.S. or US. The United States of America.
U.S. Air Carrier. Any United States air carrier as to which there is
in force a certificate issued pursuant to Section 41102(a) or Section 41103 of
the Transportation Code, and as to which there is in force an air carrier
operating certificate issued pursuant to Chapter 447 of the Transportation
Code and Part 121 of the regulations under such Transportation Code, for
aircraft capable of carrying ten (10) or more individuals or 6,000 pounds or
more of cargo, or which may operate as an air carrier by certification or
otherwise under any successor or substitute provision thereof or in absence
thereof.
U.S. Person. A Person described in Section 7701(a)(30) of the Code.
Warranty Bill of Sale. The full warranty bill of sale covering the
Aircraft (and specifically referring to each Engine) executed by the Lessee,
as seller in favor of the Owner Trustee, as buyer, and dated the Delivery Date.
WTC. Wilmington Trust Company, a Delaware banking corporation.
SCHEDULE III
PERMITTED COUNTRY LIST
Australia Japan
Belgium Luxembourg
Canada Netherlands
Denmark New Zealand
Finland Norway
France Singapore
Germany Sweden
Iceland Switzerland
Ireland United Kingdom
EXHIBIT B
[FORM OF LEASE AGREEMENT]
[See Exhibit 4.e]
EXHIBIT C
[FORM OF INDENTURE]
[See Exhibit 4.b.1]
EXHIBIT D
[FORM OF TRUST AGREEMENT]
[See Exhibit 4.d]
EXHIBIT A(1)(a)
[Letterhead of Federal Express]
[Refunding Date]
To the Addressees Listed on Schedule A Attached
Re: Federal Express Corporation Trust No. N587FE
Ladies and Gentlemen:
I am the Vice President - Law of Federal Express
Corporation, a Delaware corporation ("Federal"), and am familiar with the
transactions contemplated by the Participation Agreement (Federal Express
Corporation Trust No. N587FE), dated as of December 1, 1996, as amended
and restated as of May 1, 1997 (the "Participation Agreement"), among
Federal Express Corporation, as Lessee, Comerica Leasing Corporation and
Norwest Bank Minnesota, National Association, as Owner Participants, Morgan
Guaranty Trust Company of New York, as Original Loan Participants, State
Street Bank and Trust Company, not in its individual capacity, except as
otherwise stated, but solely as Original Indenture Trustee, Wilmington
Trust Company, not in its individual capacity, except as otherwise stated,
but solely as Owner Trustee, and First Security Bank, National Association,
as Indenture Trustee, Pass Through Trustee and Subordination Agent,
relating to the Aircraft. This opinion is being delivered pursuant to
Section 4.01(l)(i) of the Participation Agreement. Capitalized terms not
otherwise defined herein have the meanings assigned thereto in the
Participation Agreement.
The Participation Agreement provides, among other things,
for the refinancing in full of the Original Loan Certificates evidencing
the Original Loan Participants' participation in the payment of the
Purchase Price of one McDonnell Douglas MD-11F aircraft (the "Aircraft"),
using the proceeds from the public offering of the Pass Through
Certificates. Three Classes of Pass Through Certificates will be issued by
three Pass Through Trusts formed to acquire, among other securities, the
Certificates bearing a particular interest rate and having a particular
Maturity that will be issued under the Trust Indenture, as supplemented by
the related Indenture and Security Agreement Supplement.
In connection with the opinions expressed below, I have
examined or caused to be examined by attorneys under my supervision,
executed counterparts of the Operative Agreements, the Pass Through
Agreement and each Series Supplement (the "Transaction Agreements"). We
have relied upon originals or copies, certified or otherwise identified to
our satisfaction, of such corporate records, documents and other
instruments as in our judgment are relevant to rendering the opinions
expressed below. As to any facts material to the opinions expressed below
(other than any thereof relating to Federal), we have relied upon the
representations and warranties made in the Transaction Agreements, the
accuracy of which we have not independently investigated or verified. In
such examination, we have assumed the genuineness of all signatures (other
than the signatures of Federal) and the authenticity of all documents
submitted to us as originals and the conformity with the originals of all
documents submitted to us as copies. We have also assumed that each of the
parties to each of the Transaction Agreements, other than Federal, has full
power, authority and legal right to enter into such Transaction Agreements
and that each such Transaction Agreement has been duly authorized, executed
and delivered by each of such parties.
Based on the foregoing, it is my opinion that:
1. Federal is a corporation duly incorporated, validly
existing and in good standing under the laws of the State of Delaware, is a
"citizen of the United States" within the meaning of Section 40102(a)(15) of
the Transportation Code, and has or had, on the date of execution thereof, the
corporate power and authority to carry on its business as currently conducted
and to enter into and perform its obligations under the Transaction Agreements
to which it is a party. Federal is duly qualified to do business and is in
good standing in the State of Tennessee and each other state of the United
States in which its operations or the nature of its business requires Federal
to so qualify, except where the failure to so qualify would not have a
material adverse impact on Federal or its business.
2. Federal possesses all necessary certificates, franchises,
licenses, permits, rights and concessions and consents which are material to
the operation of the routes flown by it and the conduct of its business and
operations as currently conducted, and each such certificate, franchise,
license, permit, right and concession and consent is in full force and effect.
3. Each of the Transaction Agreements to which Federal is a
party has or had, on the date of execution thereof, been duly authorized,
executed and delivered by Federal and each constitutes the legal, valid and
binding obligation of Federal enforceable against Federal in accordance with
its terms.
4. Neither the execution and delivery by Federal of the
Transaction Agreements to which Federal is a party, nor the consummation of
any of the transactions by Federal contemplated thereby, nor the
performance of the obligations thereunder by Federal, did at the time of
execution and delivery, or does presently (a) require any stockholder
approval or violate the Certificate of Incorporation or By-laws of Federal
or (b) conflict with or contravene the provisions of, or constitute a
default under, or result in the creation of any Lien (other than Liens
permitted under Section 6.01(a) of the Lease) upon the property of Federal
under any law, governmental rule or regulation, or the charter or bylaws of
Federal or any order, writ, injunction or decree of any court or
governmental authority against Federal or by which any of its properties
may be bound or any indenture, mortgage, contract or other agreement known
to me to which Federal is a party or by which it may be bound or, require
the approval or consent of any trustee or the holders of any indebtedness
or obligations of Federal.
5. Neither the execution and delivery by Federal of the
Transaction Agreements to which it is a party, nor the consummation of any
transactions by Federal contemplated thereby, nor the performance of the
obligations thereunder by Federal, did or does, as the case may be, (a)
require the consent or approval of, the giving of notice to, or (except as
described or contemplated in the Participation Agreement and the Lease, all
of which are required to be performed on or prior to the Refunding Date and
which shall have been accomplished on or prior to the Refunding Date) the
registration with, or the taking of any other action in respect of, the
Aeronautics Authority, the Securities and Exchange Commission or any other
authority or agency of the federal government or of the State of Tennessee
other than (i) the registration of the issuance and sale of the Pass
Through Certificates under the Securities Act, (ii) compliance with the
securities laws of each applicable state, and (iii) the filing of the
Indenture, the Lease and the Trust Agreement with the FAA, or (b)
contravene any judgment or order applicable to or binding on Federal or any
law or governmental rule or regulation of the United States or of the State
of Tennessee.
6. There is no pending, or to my knowledge, threatened
action or proceeding before any court or administrative agency which
individually (or in the aggregate in the case of any group of related
lawsuits) (i) is expected to have a material adverse effect on (A) the
financial condition of Federal, except for the matters described (a) under
"Legal Proceedings" in Federal's Annual Report on Form 10-K for the fiscal
year ended May 31, 1996 (as updated by Note 7 to the financial statements
included in Federal's Quarterly Reports on Form 10-Q for the fiscal
quarters ended August 31, 1996, November 30, 1996 and February 28, 1997)
and (b) in Federal's Current Reports on Form 8-K dated June 7, 1996, August
16, 1996 and March 4, 1997, as to which I can express no opinion at this
time concerning Federal's liability (if any) or the effect of any adverse
determination upon the business, condition (financial or otherwise) or
operations of Federal or (B) the ability of Federal to perform its
obligations under the Transaction Agreements, or (ii) involves the
Aircraft.
7. Except for the filing and, where appropriate, recording,
pursuant to the Transportation Code of the Lease, the Indenture, the Trust
Agreement, the filing of the financing statements referred to in Section
4.01(f) of the Participation Agreement and the taking of possession by the
Indenture Trustee of the original counterpart of the Lease and maintaining
possession of the original counterpart of the Lease Supplement delivered on
the Delivery Date, no further action, including any filing or recording of
any document is necessary or advisable in order to establish and perfect
the Owner Trustee's title to and interest in the Aircraft as against
Federal and any third parties, or to perfect the first mortgage lien on the
Aircraft in favor of the Indenture Trustee in each case with respect to
such portion of the Aircraft as is covered by the recording system
established by the Transportation Code.
8. Federal is a duly certificated "air carrier" within the
meaning of the Transportation Code, and a holder of a certificate under
Sections 41102(a) and 41103 of the Transportation Code, and an "air carrier
operating certificate" issued under Chapter 447 of the Transportation Code
for aircraft capable of carrying ten (10) or more individuals or 6,000
pounds or more of cargo, and each such certificate is in full force and
effect.
9. On the Delivery Date the Owner Trustee received good and
valid title to the Aircraft free and clear of all Liens on file with the
FAA, except for Liens permitted under Section 6.01(a) of the Lease.
Pursuant to the Original Participation Agreement the Aircraft was duly
delivered to the Owner Trustee. Federal, as Lessee, duly accepted the
Aircraft under the Original Lease and the Lease Supplement and the Term
commenced on the Delivery Date.
10. Federal's principal place of business and chief
executive office (as such term is defined in the Uniform Commercial Code in
effect in the State of Tennessee) are located at 2005 Corporate Avenue,
Memphis, Shelby County, Tennessee.
11. Federal is not, and is not directly or indirectly
controlled by or acting on behalf of any Person which is, an "investment
company" within the meaning of the Investment Company Act of 1940, as
amended.
The opinions expressed in paragraph 3 above as to the
enforceability of the Transaction Agreements to which Federal is a party
are based upon the assumption for purposes of such opinions and without
independent analysis that, notwithstanding the respective choice of laws
clauses in the Transaction Agreements, the governing law with respect to
each of the Transaction Agreements is identical in all relevant respects to
the law of the State of Tennessee. Insofar as the foregoing opinion
relates to the enforceability of any instrument, such enforceability is
subject to applicable bankruptcy, insolvency and other similar laws
affecting the enforcement of creditors' rights generally (whether such
enforceability is considered in a proceeding in equity or at law). The
enforceability of the remedies provided under the Lease may also be limited
by applicable laws which may affect the remedies provided therein but which
do not in my opinion affect the validity of the Lease or make such remedies
inadequate for the practical realization of the benefits intended to be
provided thereby.
I do not express any opinion as to matters governed by any
law other than the Federal laws of the United States of America, the
corporation law of the State of Delaware and the laws of the State of
Tennessee.
As to the matters referred to in paragraphs 5, 7 and 9, I
have relied on the opinion of Daugherty, Fowler & Peregrin of even date
herewith, to the extent such matters are addressed in such counsel's
opinion and subject to the assumptions and qualifications expressed
therein.
This opinion is delivered to you solely for your use in
connection with the transaction described herein, and may not be used for
any other purpose, and may not be relied upon by any other person, without
my prior written consent.
I rendered an opinion dated December 13, 1996 (the "Delivery
Date Opinion"), a copy of which is attached hereto, in connection with the
financing and acquisition of the Aircraft on such date. I hereby consent
and agree that the addressees hereto who were not addressees to the
Delivery Date Opinion may rely on the Delivery Date Opinion as fully and
with the same force and effect as if such addressees were originally named
therein on the date of the Delivery Date Opinion.
George W. Hearn
SCHEDULE A
Owner Trustee
State Street Bank and Trust Company
of Connecticut, National Association
Two International Place
4th Floor
Boston, Massachusetts 02110
Indenture Trustee, Pass Through Trustee & Subordination Agent
First Security Bank, National Association
79 South Main Street
Salt Lake City, Utah 84111
Original Indenture Trustee
State Street Bank and Trust Company
Two International Place
4th Floor
Boston, Massachusetts 02110
Original Agent and Loan Participant
Morgan Guaranty Trust Company of New York
60 Wall Street
22nd Floor
New York, New York 10260
Owner Participants
Comerica Leasing Corporation
29201 Telegraph Road
2nd Floor
Southfield, Michigan 48034
Norwest Bank Minnesota, National Association
733 Marquette Avenue
Suite 300
Minneapolis, Minnesota 55479-2048
Underwriters
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
First Chicago Capital Markets, Inc.
Corporate Securities
One First National Plaza
Chicago, Illinois 60670
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
J.P. Morgan & Co.
60 Wall Street
New York, New York 10260
Liquidity Provider
Kredietbank N.V., New York Branch
125 West 55th Street
New York, New York 10019
EXHIBIT A(1)(b)
[Letterhead of Davis Polk & Wardwell]
[Refunding Date]
To Each of the Parties named on Schedule A Hereto
Re: Federal Express Corporation Trust No. N587FE
Ladies and Gentlemen:
We have acted as special counsel for Federal Express
Corporation, a Delaware corporation ("Federal Express"), in connection with
the transactions contemplated by the Participation Agreement (Federal Express
Corporation Trust No. N587FE), dated as of December 1, 1996, as amended and
restated as of May 1, 1997 (the "Participation Agreement"), among Federal
Express Corporation, as Lessee, Comerica Leasing Corporation and Norwest Bank
Minnesota, National Association, as Owner Participants, Morgan Guaranty Trust
Company of New York, as Original Loan Participants, State Street Bank and
Trust Company, not in its individual capacity, except as otherwise stated, but
solely as Original Indenture Trustee, Wilmington Trust Company, not in its
individual capacity, except as otherwise stated, but solely as Owner Trustee,
and First Security Bank, National Association, as Indenture Trustee, Pass
Through Trustee and Subordination Agent, relating to the Aircraft. This
opinion is being delivered pursuant to Section 4.01(l)(viii) of the
Participation Agreement. Capitalized terms not otherwise defined herein have
the meanings assigned thereto in the Participation Agreement.
Pursuant to the Original Participation Agreement, the Owner
Participant and the Original Loan Participants participated in the payment
of the Purchase Price of one McDonnell Douglas MD-11F Aircraft which was
purchased by the Owner Trustee pursuant to the Bills of Sale, subjected to
the Lien of the Original Indenture and leased to Federal Express under the
Original Lease. The Participation Agreement provides, among other things,
for the refinancing of the Original Loan Certificates using the proceeds
from the public offering of the Pass Through Certificates. Three Classes
of Pass Through Certificates will be issued by three separate Pass Through
Trusts, each formed to acquire, among other securities, the Certificates
bearing a particular interest rate and having a particular Maturity that
will be issued under the Indenture.
In connection with the opinions expressed below, we have
examined executed counterparts of the Operative Agreements, the Pass
Through Certificates, the Pass Through Agreement and each Series Supplement
(the "Transaction Agreements"). We have also examined originals, or copies
certified to our satisfaction, of such other agreements, documents,
certificates and statements of governmental officials and corporate
officers as we have deemed necessary or advisable as a basis for such
opinions. In such examination, we have assumed the genuineness of all
signatures and the authenticity of all documents submitted to us as
originals and the conformity with the originals of all documents submitted
to us as copies.
As to any facts material to our opinions expressed below, we
have, with your consent, relied on the representations and warranties made in
or pursuant to the Participation Agreement and the other documents referred to
therein, the accuracy of which we have not independently verified. In
addition, we have, when relevant facts were not independently established by
us, relied, to the extent we deemed such reliance proper, upon certificates of
public officials and certificates, telegrams and other written or telephoned
statements of officers of the parties referred to herein.
Based on the foregoing, it is our opinion that:
1. With respect to that portion, if any, of the Aircraft
and the other property included in the Lessor's Estate as may not be
covered by the recording system established by the FAA pursuant to Section
44107 of the Transportation Code, no filing or recording of any document or
other action was or is necessary in order to establish the Owner Trustee's
title thereto and interest therein as against Federal Express and any third
parties.
2. The Lease creates a valid leasehold interest in the
Aircraft, the entitlement thereof to the benefits of recordation under the
Transportation Code being subject to the due and timely filing and, where
appropriate, recording of (A) the Lease (with the Indenture attached as an
exhibit), (B) the Indenture and (C) the Trust Agreement.
3. Assuming (i) the due authorization, execution and
delivery of the Transaction Agreements by each of the parties to each such
document (other than Federal Express), (ii) each such party has full power
and legal right to enter into and perform its respective obligations under
the Transaction Agreements, (iii) that the execution, delivery and
performance of each of the Transaction Agreements by each of the parties
thereto will not violate the respective parties' constituent documents,
(iv) the due authorization, execution, issuance and delivery by the Owner
Trustee, and the due authentication by the Indenture Trustee, of the
Certificates to be issued under the Indenture in accordance with the terms
of the Indenture, (v) that the Original Loan Certificates are delivered by
the Original Loan Participants to the Indenture Trustee for cancellation
and are cancelled, (vi) the due authorization, execution, issuance,
delivery and authentication by the Pass Through Trustee of the Pass Through
Certificates to be issued under the Pass Through Agreement and the Series
Supplement relating to such Pass Through Certificates, in each case in
accordance with the terms of the Pass Through Agreement and such Series
Supplement, and (vii) that the form of each Transaction Agreement is in
compliance with all applicable laws and governmental rules and regulations
(other than the laws of the United States and the State of New York), then:
(A) to the extent governed by New York law, each Transaction Agreement in
form constitutes a legal, valid and binding agreement of each party thereto
enforceable against each such party in accordance with its terms; (B) the
Original Indenture created, and the Indenture creates, for the benefit of
the Holders, the security interest in the Trust Indenture Estate that they
purport to create; (C) the Certificates, when issued to and acquired by
the Pass Through Trustee, will be legal, valid and binding obligations of
the Owner Trustee enforceable against the Owner Trustee in accordance with
their terms and the terms of the Indenture and will be entitled to the
benefits of the Indenture, including the benefit of the security interest
created thereby; (D) the Pass Through Certificates, when issued to and
acquired by the Underwriters in accordance with the Underwriting Agreement,
will be legal, valid and binding obligations of the Pass Through Trustee
enforceable against the Pass Through Trustee in accordance with their terms
and will be entitled to the benefits of the Pass Through Agreement and the
Series Supplement relating thereto; and (E) the beneficial interest of each
Owner Participant under the Trust Agreement in and to the properties which
are part of the Trust Indenture Estate is subject, to the extent provided
in the Indenture, to the Lien of the Indenture in favor of the Holders.
The opinions set forth in this paragraph 3 are subject to the due filing
and, where appropriate, recording with the FAA of the documents referred to
in paragraph 2 above.
4. (a) Each of the Transaction Agreements to which Federal
Express is a party has been duly authorized, executed and delivered by Federal
Express.
(b) The execution, delivery and performance by Federal Express
of each of the Transaction Agreements to which Federal Express is a party do
not, or did not on the date of execution thereof, violate, and fully comply,
or did fully comply on the date of execution thereof, with, any laws and
governmental rules and regulations of the State of New York that may be
applicable to Federal Express. The opinion set forth in this paragraph 4(b)
is rendered without regard to the taking of any action or the conduct of any
other business by Federal Express in the State of New York other than the
transactions contemplated by the Transaction Agreements.
5. The execution, delivery and performance of the
Participation Agreement, the Trust Agreement, the Indenture and the Lease by
the Owner Trustee in its individual or trust capacity, as the case may be, and
the issuance, execution, delivery and performance of the Certificates by the
Owner Trustee in its trust capacity do not violate, and fully comply with, any
laws and governmental rules and regulations of the State of New York that may
be applicable to the Owner Trustee in its individual or trust capacity, as the
case may be. The opinion set forth in this paragraph 5 is rendered without
regard to the effect, if any, on such issuance (in the case of the
Certificates), execution, delivery or performance, of the taking of any
action, the conduct of any business or the exercise of any other powers by
State Street Bank and Trust Company of Connecticut, National Association in
its individual or trust capacity in the State of New York not related to the
transactions contemplated by the Transaction Agreements. We have assumed that
State Street Bank and Trust Company of Connecticut, National Association has
made the filings necessary to comply with Section 131.3 of the Banking Law of
the State of New York, however we express no opinion as to whether State
Street Bank and Trust Company of Connecticut, National Association is required
to comply with said Section 131.3.
6. All the properties which are part of the Trust Indenture
Estate (including all right, title and interest of the Owner Trustee pledged
and mortgaged by it pursuant to the Indenture in and to the Aircraft and the
Lease) have been pledged and mortgaged with the Indenture Trustee as part of
the Trust Indenture Estate (subject to the due filing and, where appropriate,
recording of those documents referred to in paragraph 2 above and the
financing statements referred to in Section 4.01(f) of the Participation
Agreement), and the beneficial interest of the Owner Participant under the
Trust Agreement in and to such properties is subject, to the extent provided
in the Indenture, to the Lien of the Indenture in favor of the Holders of the
Certificates issued and to be issued under the Indenture.
7. The Indenture creates, as security for the Certificates
duly issued and to be issued under the Indenture, the first priority security
interest in the Aircraft it purports to create, the perfection and rank
thereof being subject to the registration with the FAA of the Aircraft in the
name of the Owner Trustee and the due filing and, where appropriate, recording
in accordance with the Transportation Code of the documents referred to in
paragraph 2 above. We express no opinion with respect to the status of any
security interest in any portion of the Aircraft which does not constitute an
"aircraft" or "aircraft engine", as defined in paragraphs (6) and (7) of
Section 40102(a) of the Transportation Code.
8. Except for (i) the filings and recordings referred to in
paragraph 2 above, (ii) the registration of the issuance and sale of the
Pass Through Certificates under the Securities Act and (iii) compliance
with the securities laws of each applicable state, neither the execution
and delivery by Federal Express of the Participation Agreement or any other
Transaction to which it is a party, nor the consummation of any of the
transactions by Federal Express contemplated thereby, requires the consent
or approval of, the giving of notice to, or the registration with, or the
taking of any other action in respect of, the Department of Transportation,
the FAA, the Securities and Exchange Commission or any other Federal or New
York State governmental authority.
9. It is not necessary, in connection with the creation of
the beneficial interest of the Owner Participant in the Trust Indenture Estate
under the circumstances contemplated by the Participation Agreement to
register such beneficial interest under the Securities Act of 1933, as
amended, or to qualify the Trust Agreement under the Trust Indenture Act of
1939, as amended.
10. The provisions of Section 1110 of the United States
Bankruptcy Code will apply to the Aircraft for the benefit of the Lessor,
as lessor under and by reason of the Lease. The Lease, including the
rights under Section 1110 of the United States Bankruptcy Code, has been
assigned to the Indenture Trustee pursuant to the Indenture as part of the
collateral for the Certificates and, as assignee, the Indenture Trustee has
the benefit of Section 1110.
The foregoing opinions are subject to the following
qualifications:
(a) We have relied, with your consent, without independent
investigation and verification and subject to the assumptions and
qualifications contained therein, upon the opinions of Daugherty,
Fowler & Peregrin and George W. Hearn, Vice President - Law of
Federal Express to be delivered to you and dated the date hereof, for
purposes of the matters covered thereby.
(b) We are qualified to practice law in the State of New York,
and we do not purport to be experts on, or to express any opinion
herein concerning, any laws other than the laws of the State of New
York, the laws of the United States and the General Corporation Law
of the State of Delaware. We express no opinion as to any matters
involving aviation law.
(c) The opinion contained in paragraph 3(A) above as to
enforceability is subject to (i) applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement
of creditors' rights generally and (ii) general principles of equity
which may affect the remedies provided in the agreements referred to
in said opinions, which laws and principles, however, do not in our
opinion make the remedies provided in said agreements inadequate for
the practical realization of the benefits of the security intended to
be provided thereby.
(d) This opinion is rendered solely to you at Federal
Express's request in connection with the above matter. This
opinion may not be relied upon by you for any other purpose or
relied upon by any other Person without our prior written consent.
(e) We rendered an opinion dated December 13, 1996 (the
"Delivery Date Opinion"), a copy of which is attached hereto, in
connection with the financing and acquisition of the Aircraft on such
date. We hereby consent and agree that the addressees hereto who
were not addressees to the Delivery Date Opinion may rely on the
Delivery Date Opinion as fully and with the same force and effect as
if such addressees were originally named therein on the date of the
Delivery Date Opinion.
Very truly yours,
Davis Polk & Wardwell
SCHEDULE A
Lessee
Federal Express Corporation
2007 Corporate Avenue
Memphis, Tennessee 38132
Owner Trustee
State Street Bank and Trust Company
of Connecticut, National Association
Two International Place
4th Floor
Boston, Massachusetts 02110
Indenture Trustee, Pass Through Trustee & Subordination Agent
First Security Bank, National Association
79 South Main Street
Salt Lake City, Utah 84111
Original Indenture Trustee
State Street Bank and Trust Company
Two International Place
4th Floor
Boston, Massachusetts 02110
Original Agent and Loan Participant
Morgan Guaranty Trust Company of New York
60 Wall Street
22nd Floor
New York, New York 10260
Owner Participants
Comerica Leasing Corporation
29201 Telegraph Road
2nd Floor
Southfield, Michigan 48034
Norwest Bank Minnesota, National Association
733 Marquette Avenue
Suite 300
Minneapolis, Minnesota 55479-2048
Underwriters
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
First Chicago Capital Markets, Inc.
Corporate Securities
One First National Plaza
Chicago, Illinois 60670
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
J.P. Morgan & Co.
60 Wall Street
New York, New York 10260
Liquidity Provider
Kredietbank N.V., New York Branch
125 West 55th Street
New York, New York 10019
EXHIBIT A(2)(a)
[Letterhead of Winston & Strawn]
[Refunding Date]
To Each of the Addressees Listed in Schedule A Attached Hereto
Re: Federal Express Corporation Trust No. N587FE
Ladies and Gentlemen:
We have acted as special counsel for (i) Comerica Leasing
Corporation (formerly known as CMCA Lease, Inc.), a Michigan corporation and
Norwest Bank Minnesota, National Association, a national banking association
(collectively, the "Owner Participant"), in connection with the transactions
contemplated by (a) the Participation Agreement (Federal Express Corporation
Trust No. N587FE), dated as of December 1, 1996, as amended and restated as
of May 1, 1997 (the "Participation Agreement"), among Federal Express
Corporation, as Lessee (the "Lessee"), the Owner Participants, Morgan Guaranty
Trust Company of New York, as Original Loan Participant (the "Original Loan
Participant"), State Street Bank and Trust Company, not in its individual
capacity, except as otherwise stated, but solely as Original Indenture Trustee
(the "Original Indenture Trustee"), Wilmington Trust Company, not in its
individual capacity, except as otherwise stated, but solely as Owner Trustee,
and First Security Bank, National Association, as Indenture Trustee, Pass
Through Trustee and Subordination Agent, (b) the Trust Agreement (Federal
Express Corporation Trust No. N587FE), dated as of December 1, 1996, as
amended and restated as of May 1, 1997 (the "Trust Agreement"), by and between
the Owner Participants and the Owner Trustee, (c) the Tax Indemnity Agreement
(Federal Express Corporation Trust No. N587FE), dated as of December 1, 1996,
as amended by Amendment No. 1 to the Tax Indemnity Agreement dated as of May
1, 1997 (the "Indemnity Agreement"), between the Owner Participant and the
Lessee, (d) the Ancillary Agreement I (Federal Express Corporation Trust No.
N587FE), dated December 13, 1996, as amended and restated on the date hereof
(the "Ancillary Agreement I"), by and among the Lessee, the Owner
Participants, the Owner Trustee, and the Indenture Trustee, and (e) the
Ancillary Agreement II (Federal Express Corporation Trust No. N587FE), dated
the date hereof (the "Ancillary Agreement II"), by and among the Lessee, the
Owner Participants, the Owner Trustee and the Indenture Trustee, and (ii)
Comerica Bank, a Michigan banking association (the "Guarantor"), in connection
with the transactions contemplated by the Owner Participant Guaranty, dated
December 13, 1996, as amended and restated as of the date (the "Guaranty"),
from the Guarantor to each of the beneficiaries named therein. This opinion
is delivered pursuant to Section 4.01(l)(ii) of the Participation Agreement.
Unless otherwise defined herein, all capitalized terms used herein shall have
the respective defined meanings set forth in the Participation Agreement.
In connection with our opinions herein, we have examined
executed counterparts of the Participation Agreement, the Trust Agreement,
the Indenture, the Indemnity Agreement, the Guaranty, Ancillary Agreement I
and Ancillary Agreement II (collectively, the "Documents"). We have
further examined and relied upon the accuracy of original, certified,
conformed, photographic or telecopied copies of such records, agreements,
certificates and other documents as we have deemed necessary or appropriate
to enable us to render the opinions expressed herein. In all such
examinations, we have assumed the genuineness of signatures on original
documents and the conformity to such original documents of all copies
submitted to us as certified, conformed, photographic or telecopied copies,
and as to certificates and telegraphic and telephonic confirmations given
by public officials, we have assumed the same to have been properly given
and to be accurate. As to various questions of fact material to our
opinions, we have relied solely upon the accuracy of the statements,
representations and warranties made in the Documents, and we have made no
independent investigation or inquiry with respect to such factual matters.
With your consent, and for purposes of this opinion, we have
assumed the accuracy of the following matters, but we have not made any
independent investigation or inquiry with respect thereto and we render no
opinion on such matters:
(a) The Participation Agreement, the Indemnity Agreement,
the Trust Agreement, Ancillary Agreement I and Ancillary Agreement
II, at the time of execution and delivery by the Owner
Participants will have been duly and validly executed and
delivered by all parties thereto other than the Owner Participants
and will constitute the legal, valid and binding obligations of
such parties, enforceable against such parties in accordance with
their terms, except as the enforceability thereof may be limited
by (i) applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium or similar laws affecting the
enforcement of creditors' rights generally and (ii) general
principles of equity (regardless of whether such enforceability is
considered in a proceeding at law or in equity).
(b) The parties to the Participation Agreement, the
Indemnity Agreement, the Trust Agreement, Ancillary Agreement I
and Ancillary Agreement II other than the Owner Participants, at
the time of execution and delivery by the Owner Participants and
at all times subsequent thereto, have obtained, and there are in
full force and effect at such time, any and all required consents,
permits, and approvals required by or from any and all federal,
state, local or foreign governmental agencies and authorities in
connection with the transactions contemplated thereby, to the
extent necessary for the legality, validity, binding effect or
enforceability of the Participation Agreement, the Indemnity
Agreement, the Trust Agreement, Ancillary Agreement I or Ancillary
Agreement II.
We have been retained as special counsel to the Owner
Participants and the Guarantor in connection with transactions contemplated by
the Participation Agreement and have not generally represented the Owner
Participants or the Guarantor in their respective business activities and are
not familiar with the nature and extent of such activities. Accordingly, we
also have assumed without investigation that such other activities are not of
such a nature as to cause the transactions contemplated by the Participation
Agreement to be governed by laws or regulations of the State of New York or
the United States of America applicable only because of such activities (such
as laws relating specifically to the banking, securities, insurance or utility
industries) and not applicable to business corporations generally.
Based upon the foregoing but subject to the assumptions,
limitations and qualifications set forth herein, we are of the opinion that:
1. The Participation Agreement, the Indemnity Agreement,
Ancillary Agreement I and Ancillary Agreement II constitute legal,
valid and binding obligations of the Owner Participants, enforceable
against the Owner Participants in accordance with their respective
terms, except as the enforceability thereof may be limited by
applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium or similar laws affecting the enforcement
of creditors' rights generally, and except as enforcement thereof is
subject to general principles of equity (regardless of whether such
enforceability is considered in a proceeding at law or in equity).
2. Neither the execution and delivery of the Participation
Agreement, the Trust Agreement, the Indemnity Agreement, Ancillary
Agreement I or Ancillary Agreement II by the Owner Participants nor
the consummation by the Owner Participants of any of the transactions
therein contemplated, or the fulfillment of, or compliance with, the
terms and provisions of any thereof, (A) requires for its validity
that the Owner Participants obtain the consent or approval of, give
notice to, register with, or take any other action with respect to,
any governmental authority or agency of the State of New York or the
Federal government of the United States, or (B) contravenes any law,
governmental rule or regulation of the State of New York or the
Federal government of the United States or any governmental authority
or agency thereof.
3. Neither the execution and delivery of the Guaranty by the
Guarantor nor the consummation by the Guarantor of any of the
transactions therein contemplated, or the fulfillment of, or
compliance with, the terms and provisions thereof, (A) requires for
its validity that the Guarantor obtain the consent or approval of,
give notice to, register with, or take any other action with respect
to, any governmental authority or agency of the State of New York or
the Federal government of the United States, or (B) contravenes any
law, governmental rule or regulation of the State of New York or the
Federal government of the United States or any governmental authority
or agency thereof.
In rendering the foregoing opinions, we have relied, with your
consent, on the opinions of even date herewith of Sotiroff & Abramczyk, P.C.,
counsel for Comerica Leasing Corporation and the opinion of Gloria G. Freud,
counsel for Comerica Bank, and the opinion of Judy I. VanOsdel, Senior Counsel
for Norwest Bank Minnesota, National Association, as to the matters set forth
therein.
The foregoing opinions are subject, however, to the
qualification that we express no opinion as to matters relating to the title
to or sufficiency of description of any property or collateral described in
the Documents or the perfection or relative priority of any lien or security
interest created with respect to such property or collateral thereunder. In
addition, we express no opinion as to matters governed by (i) any tax laws,
(ii) the Transportation Code, or by any other laws, statutes, rules or
regulations of the United States particularly relating to the acquisition,
ownership, registration, leasing, use or sale of the Aircraft, the Airframe or
the Engines other than such laws relating to personal property generally,
(iii) any securities laws or (iv) laws pertaining to the Owner Participants
solely because of the business activities of such Owner Participant and which
are not applicable to business corporations generally. Further, we express no
opinion as to the severability of any provision of any documents.
We are licensed to practice law in the State of New York and we
express no opinions herein as to the laws of any state or jurisdiction other
than the laws of the State of New York and the laws of the United States of
America.
This opinion is furnished by us at your request and at the
Owner Participant's request for your sole benefit, and we agree that you
may rely on the opinions expressed herein. No other person or entity shall
be entitled to rely on the opinion expressed herein without our express
prior written consent. This opinion is limited to the matters stated
herein, and no opinion is implied or may be inferred beyond the matters
expressly stated herein. This opinion is of the date hereof and we
undertake no, and disclaim any, obligation to advise you of any changes in
any matters set forth herein.
We rendered an opinion dated December 13, 1996 (the "Delivery
Date Opinion"), a copy of which is attached hereto, in connection with the
financing and acquisition of the Aircraft on such date. We hereby consent and
agree that the addressees hereto who were not addressees to the Delivery Date
Opinion may rely on the Delivery Date Opinion as fully and with the same force
and effect as if such addressees were originally named therein on the date of
the Delivery Date Opinion.
Very truly yours,
Winston & Strawn
SCHEDULE A
Lessee
Federal Express Corporation
2007 Corporate Avenue
Memphis, Tennessee 38132
Owner Trustee
State Street Bank and Trust Company
of Connecticut, National Association
Two International Place
4th Floor
Boston, Massachusetts 02110
Indenture Trustee, Pass Through Trustee & Subordination Agent
First Security Bank, National Association
79 South Main Street
Salt Lake City, Utah 84111
Original Indenture Trustee
State Street Bank and Trust Company
Two International Place
4th Floor
Boston, Massachusetts 02110
Original Agent and Loan Participant
Morgan Guaranty Trust Company of New York
60 Wall Street
22nd Floor
New York, New York 10260
Owner Participants
Comerica Leasing Corporation
29201 Telegraph Road
2nd Floor
Southfield, Michigan 48034
Norwest Bank Minnesota, National Association
733 Marquette Avenue
Suite 300
Minneapolis, Minnesota 55479-2048
Underwriters
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
First Chicago Capital Markets, Inc.
Corporate Securities
One First National Plaza
Chicago, Illinois 60670
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
J.P. Morgan & Co.
60 Wall Street
New York, New York 10260
Liquidity Provider
Kredietbank N.V., New York Branch
125 West 55th Street
New York, New York 10019
EXHIBIT A(2)(b)
[Letterhead of Sotiroff & Abramczyk, P.C
[Refunding Date]
To Each of the Persons Listed on
Schedule A Hereto
Re: Federal Express Corporation Trust No. N587FE
Ladies and Gentlemen:
We have acted as special counsel for Comerica Leasing
Corporation (formerly known as CMCA Lease, Inc.), a Michigan corporation
(the "Company", and together with Norwest Bank Minnesota, National
Association, the "Owner Participants"), in connection with (i) the
Participation Agreement (Federal Express Corporation Trust No. N587FE),
dated as of December 1, 1996, as amended and restated as of May 1, 1997
(the "Participation Agreement"), among the Owner Participants; Federal
Express Corporation, as Lessee (the "Lessee"); Wilmington Trust Company,
not in its individual capacity except as otherwise expressly set forth
therein, but solely as Owner Trustee (the "Owner Trustee"); Morgan
Guaranty Trust Company of New York, as Original Loan Participant (the
"Original Loan Participant"), State Street Bank and Trust Company, not in
its individual capacity, except as otherwise stated, but solely as Original
Indenture Trustee (the "Original Indenture Trustee"); and First Security
Bank, National Association, as Indenture Trustee, Pass Through Trustee and
Subordination Agent; (ii) the Trust Agreement (Federal Express Corporation
Trust No. N587FE), dated as of December 1, 1996, as amended and restated
as of May 1, 1997 (the "Trust Agreement"), among the Owner Participants and
Wilmington Trust Company; (iii) the Tax Indemnity Agreement (Federal
Express Corporation Trust No. N587FE), dated as of December 1, 1996, as
amended by Amendment No. 1 to the Tax Indemnity Agreement dated as of May
1, 1997 (the "Indemnity Agreement"), among the Lessee, the Owner
Participants and the Owner Trustee; (iv) the Ancillary Agreement I
(Federal Express Corporation Trust No. N587FE), dated December 13, 1996,
as amended and restated on the date hereof (the "Ancillary Agreement I"),
among the Lessee, the Owner Participants, the Owner Trustee, and the
Indenture Trustee, and (v) the Ancillary Agreement II (Federal Express
Corporation Trust No. N587FE), dated the date hereof (the "Ancillary
Agreement II"), among the Lessee, the Owner Participants, the Owner Trustee
and the Indenture Trustee. For the purposes of this opinion, all terms
defined in the Participation Agreement but not defined herein shall have
the same meanings when used herein
In connection with the opinion, we have examined the
Participation Agreement, the Trust Agreement, the Ancillary Agreement I, the
Ancillary Agreement II and the Tax Indemnity Agreement and we have examined
originals, or copies certified or otherwise identified to our satisfaction, of
such records, documents, certificates and other instruments as in our judgment
are necessary or appropriate for purposes of this opinion. In such
examination we have assumed the genuineness of all signatures (other than
those on behalf of the Company) and the authenticity of all documents
submitted to us as originals and the conformity with the originals of all
documents submitted to us as copies. As to any facts material to our opinions
expressed below, we have relied upon the representations and warranties
contained in or made pursuant to the Participation Agreement, the Trust
Agreement and the Tax Indemnity Agreement and upon originals, or copies
authenticated to our satisfaction, of such certificates of the Company, or
public officials and such corporate records, documents and other instruments
as in our judgment are necessary or appropriate to enable us to render the
opinions expressed below. We have assumed, except with regard to the Company,
that the Participation Agreement, the Trust Agreement, the Ancillary Agreement
I, the Ancillary Agreement II and the Tax Indemnity Agreement have been duly
authorized, executed and delivered by the respective parties thereto and that
they constitute the legal, valid and binding obligations of each party thereto
enforceable against each such party in accordance with their respective terms.
Based on and subject to the foregoing, it is our opinion that:
1. The Company is a Michigan corporation duly organized,
validly existing and in good standing and has full corporate power
and authority to execute, deliver and perform its obligations under
the Participation Agreement, the Trust Agreement, the Tax Indemnity
Agreement, the Ancillary Agreement I and the Ancillary Agreement II;
2. Each of the Participation Agreement, the Trust Agreement,
the Tax Indemnity Agreement, the Ancillary Agreement I and the
Ancillary Agreement II have been duly authorized, executed and
delivered by the Company.
3. Neither the execution of and delivery by the Company of
the Participation Agreement, the Trust Agreement, the Tax
Indemnity Agreement, the Ancillary Agreement I or the Ancillary
Agreement II nor the performance by the Company of any of its
obligations thereunder (a) requires the consent or approval of,
the giving of notice to, the registration with, the recording or
filing of any document with, or the taking of any other action
with respect to any governmental authority or agency of the State
of Michigan or of the federal government of the United States; or
(b) violates any law, governmental rule or regulation of the State
of Michigan or of the federal government of the United States or
any governmental authority or agency thereof; or (c) conflicts
with or results in a breach of any of the terms, conditions or
provisions of the Articles of Incorporation or By-laws of the
Company; or (d) to the best of our knowledge, is in violation of
any order or judgment applicable to or binding upon the Company or
any of its properties, would violate or (except as contemplated by
the Participation Agreement, the Trust Agreement, the Tax
Indemnity Agreement, the Ancillary Agreement I or the Ancillary
Agreement II) would subject the Trust Estate to any lien under any
indenture, mortgage, bank credit agreement, note or bond purchase
agreement, long-term lease, license or contract or other material
agreement or instrument to which the Company is a party or by
which it or nay of its properties is bound; and
4. There are no actions, suits or proceedings pending or,
to the best of our knowledge, threatened against or affecting the
Company before any court, administrative agency or other
governmental body or arbitration board or tribunal which, if
adversely determined, would materially and adversely affect the
Company's ability to perform its obligations under the
Participation Agreement, the Trust Agreement, the Tax Indemnity
Agreement, the Ancillary Agreement I or the Ancillary Agreement
II, and we are not aware of any pending or threatened actions or
proceedings before any court, administrative agency or tribunal
involving the Company in connection with the transactions
contemplated by the Participation Agreement, the Trust Agreement,
the Tax Indemnity Agreement, the Ancillary Agreement I and the
Ancillary Agreement II.
We are authorized to practice law in the State of Michigan and
do not hold ourselves out as an expert on the law of any state other than the
State of Michigan. Consequently, the foregoing opinions are limited to the
federal laws of the United States of America and the laws of the State of
Michigan, and we express no opinion as to the laws of any other state or
jurisdiction. Further, we have made no investigation and express no opinion,
as to any aviation law or other laws, statutes, rules or regulations
applicable due to the particular nature of the equipment subject to the Lease,
and we express no opinion as to securities laws.
This opinion is rendered to you pursuant to Section 4.01(l)(ii)
of the Participation Agreement and is solely for your benefit in the
above-captioned transaction. This opinion may not be relied upon by you for
any other purpose, or relied upon by any other Person for any purpose without
our prior written consent.
We rendered an opinion dated December 13, 1996 (the "Delivery
Date Opinion"), a copy of which is attached hereto, in connection with the
financing and acquisition of the Aircraft on such date. We hereby consent and
agree that the addressees hereto who were not addressees to the Delivery Date
Opinion may rely on the Delivery Date Opinion as fully and with the same force
and effect as if such addressees were originally named therein on the date of
the Delivery Date Opinion.
Very truly yours,
SCHEDULE A
Lessee
Federal Express Corporation
2007 Corporate Avenue
Memphis, Tennessee 38132
Owner Trustee
State Street Bank and Trust Company
of Connecticut, National Association
Two International Place
4th Floor
Boston, Massachusetts 02110
Indenture Trustee, Pass Through Trustee & Subordination Agent
First Security Bank, National Association
79 South Main Street
Salt Lake City, Utah 84111
Original Indenture Trustee
State Street Bank and Trust Company
Two International Place
4th Floor
Boston, Massachusetts 02110
Original Agent and Loan Participant
Morgan Guaranty Trust Company of New York
60 Wall Street
22nd Floor
New York, New York 10260
Owner Participants
Comerica Leasing Corporation
29201 Telegraph Road
2nd Floor
Southfield, Michigan 48034
Norwest Bank Minnesota, National Association
733 Marquette Avenue
Suite 300
Minneapolis, Minnesota 55479-2048
Underwriters
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
First Chicago Capital Markets, Inc.
Corporate Securities
One First National Plaza
Chicago, Illinois 60670
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
J.P. Morgan & Co.
60 Wall Street
New York, New York 10260
Liquidity Provider
Kredietbank N.V., New York Branch
125 West 55th Street
New York, New York 10019
EXHIBIT A(2)(c)
[Letterhead of Comerica Bank]
[Refunding Date]
To Each of the Persons Listed on
Schedule A Hereto
Re: Federal Express Corporation Trust No. N587FE
Ladies and Gentlemen:
I have acted as counsel for Comerica Bank, a Michigan
banking association (the "Guarantor"), in connection with the transactions
contemplated by the Participation Agreement (Federal Express Corporation
Trust No. N587FE), dated as of December 1, 1996, as amended and restated
as of May 1, 1997 (the "Participation Agreement"), among Comerica Leasing
Corporation (formerly known CMCA Lease, Inc) and Norwest Bank Minnesota,
National Association, as Owner Participants; Federal Express Corporation,
as Lessee; Morgan Guaranty Trust Company of New York, as Original Loan
Participant; Wilmington Trust Company, not in its individual capacity
except as otherwise expressly set forth therein, but solely as Owner
Trustee; State Street Bank and Trust Company, not in its individual
capacity, except as otherwise stated, but solely as Original Indenture
Trustee; and First Security Bank, National Association, as Indenture
Trustee, Pass Through Trustee and Subordination Agent. This opinion is
delivered pursuant to Section 4.01(l)(ii) of the Participation Agreement.
Unless otherwise defined herein, capitalized terms used herein shall have
the meanings assigned to them in the Participation Agreement.
In connection with my opinion herein, I have examined the
Guaranty Agreement dated December 13, 1996, as amended and restated as of May
__, 1997, executed by the Guarantor (the "Guaranty") in connection with the
transactions contemplated by the Participation Agreement. I have examined and
to the extent I have deemed proper, have relied upon certificates, originals
or copies certified to my satisfaction, of public officials and of officers of
the Guarantor and I have examined such other records and documents as I have
deemed necessary or appropriate for purposes of this opinion.
Based on the foregoing, I am of the opinion that:
(i) the Guarantor is duly organized, validly existing
and in good standing under the laws of Michigan as a
Michigan banking association and has the power and
authority to execute, deliver and perform the terms
of the Guaranty;
(ii) the Guarantor has duly authorized, executed and
delivered the Guaranty and the Guaranty constitutes
the legal, valid and binding obligation of the Bank,
enforceable against the Bank in accordance with its
terms, except as may be limited by bankruptcy,
insolvency, moratorium and other similar laws
affecting the rights of creditors rights generally
and by the exercise of judicial discretion in the
granting of equitable remedies;
(iii) the execution, delivery and performance by the
Guarantor of the Guaranty do not and will not
violate, conflict with, or result in a breach of
the Articles of Association or By-Laws of the
Guarantor, or any law, governmental rule or
regulation, or any judgment or order of any court
or governmental authority or agency known to me
(after due inquiry) applicable to or binding upon
the Guarantor, and do not or will not violate the
provisions of, or constitute a default under, any
indenture, mortgage, contract or other agreement
known to me to which the Guarantor is a party or by
which the Guarantor or any of its property may be
bound, and do not require the approval of the
shareholders of the Guarantor or the approval or
consent of any trustee or holder of indebtedness of
the Guarantor;
(iv) neither the execution and delivery by the Guarantor
of the Guaranty nor the performance thereof require
the consent or approval of, the giving of notice
to, or registration with or the taking of any other
action with respect to, any federal or Michigan
governmental authority or regulatory body except
such, if any, as have been duly obtained or given;
and
(v) there are no pending or, to my knowledge,
threatened actions, suits or proceedings before any
court, administrative agency, governmental body or
arbitrator which would materially and adversely
affect the ability of the Guarantor to perform its
obligations under the Guaranty.
The foregoing opinion is subject to the following
qualifications: (1) no opinion is expressed as to laws other than the federal
laws of the United States and the State of Michigan; and (2) no opinion is
expressed as to securities laws.
I rendered an opinion dated December 13, 1996 (the "Delivery
Date Opinion"), a copy of which is attached hereto, in connection with the
financing and acquisition of the Aircraft on such date. I hereby consent and
agree that the addressees hereto who were not addressees to the Delivery Date
Opinion may rely on the Delivery Date Opinion as fully and with the same force
and effect as if such addressees were originally named therein on the date of
the Delivery Date Opinion.
Very truly yours,
SCHEDULE A
Lessee
Federal Express Corporation
2007 Corporate Avenue
Memphis, Tennessee 38132
Owner Trustee
State Street Bank and Trust Company
of Connecticut, National Association
Two International Place
4th Floor
Boston, Massachusetts 02110
Indenture Trustee, Pass Through Trustee & Subordination Agent
First Security Bank, National Association
79 South Main Street
Salt Lake City, Utah 84111
Original Indenture Trustee
State Street Bank and Trust Company
Two International Place
4th Floor
Boston, Massachusetts 02110
Original Agent and Loan Participant
Morgan Guaranty Trust Company of New York
60 Wall Street
22nd Floor
New York, New York 10260
Owner Participants
Comerica Leasing Corporation
29201 Telegraph Road
2nd Floor
Southfield, Michigan 48034
Norwest Bank Minnesota, National Association
733 Marquette Avenue
Suite 300
Minneapolis, Minnesota 55479-2048
Underwriters
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
First Chicago Capital Markets, Inc.
Corporate Securities
One First National Plaza
Chicago, Illinois 60670
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
J.P. Morgan & Co.
60 Wall Street
New York, New York 10260
Liquidity Provider
Kredietbank N.V., New York Branch
125 West 55th Street
New York, New York 10019
EXHIBIT A(2)(d)
[Letterhead of Norwest Bank Minnesota, National Association]
[Refunding Date]
To Each of the Persons Listed on
Schedule A Hereto
Re: Federal Express Corporation Trust No. N587FE
Ladies and Gentlemen:
I have acted as counsel for Norwest Bank Minnesota, National
Association (the "Bank"), in connection with (i) the Participation
Agreement (Federal Express Corporation Trust No. N587FE), dated as of
December 1, 1996, as amended and restated as of May 1, 1997 (the
"Participation Agreement"), among the Bank; Comerica Leasing Corporation
(formerly known as CMCA Lease, Inc.) (together with the Bank, the "Owner
Participants"); Federal Express Corporation, as Lessee (the "Lessee");
Wilmington Trust Company, not in its individual capacity except as
otherwise expressly set forth therein, but solely as Owner Trustee; Morgan
Guaranty Trust Company of New York, as Original Loan Participant; State
Street Bank and Trust Company, not in its individual capacity, except as
otherwise stated, but solely as Original Indenture Trustee; and First
Security Bank, National Association, as Indenture Trustee, Pass Through
Trustee and Subordination Agent; (ii) the Trust Agreement (Federal Express
Corporation Trust No. N587FE), dated as of December 1, 1996, as amended
and restated as of May 1, 1997 (the "Trust Agreement"), between the Owner
Participants and the Wilmington Trust Company, (iii) the Tax Indemnity
Agreement (Federal Express Corporation Trust No. N587FE), dated as of
December 1, 1996, as amended by Amendment No. 1 to the Tax Indemnity
Agreement dated as of May 1, 1997 (the "Indemnity Agreement"), between the
Lessee and the Owner Participants, (iv) the Ancillary Agreement I (Federal
Express Corporation Trust No. N587FE), dated December 13, 1996, as amended
and restated on the date hereof (the "Ancillary Agreement I"), by and among
the Lessee, the Owner Participants, the Owner Trustee and the Indenture
Trustee, and (iv) the Ancillary Agreement II (Federal Express Corporation
Trust No. N587FE), dated the date hereof (the "Ancillary Agreement II"),
by and among the Lessee, the Owner Participants, the Owner Trustee and the
Indenture Trustee. For purposes of this opinion, all terms defined in the
Participation Agreement but not defined herein shall have the same meanings
when used herein.
In connection with the foregoing and to the extent necessary to
render this opinion, I have examined, among other things, the Participation
Agreement, the Tax Indemnity Agreement, the Trust Agreement, the Ancillary
Agreement I and the Ancillary Agreement II to which the Bank is a party
(collectively, the "Bank Agreements"), originals or copies, certified or
otherwise identified to my satisfaction, of all such other instruments,
certificates of public officials, certificates of the Bank and such other
documents as I have deemed relevant and necessary for the purposes of this
opinion.
In making such examinations, I have assumed the genuineness
of signatures (other than those of authorized officers of the Bank) and the
authenticity of all documents submitted to me as originals or certified
documents, the conformity with the originals or certified documents of all
documents submitted to me as conformed, photographic or other copies, and
that such documents constitute the legal, valid and binding obligations of
each party thereto other than the Bank, enforceable against such party in
accordance with their respective terms. As to matters of fact material to
such opinions I have, when relevant facts were not independently
established by me, relied, to the extent I deemed such reliance proper,
upon the representations and warranties contained in the Participation
Agreement and upon certificates of public officials and certificates and
other written or telephonic statements furnished to me.
With your consent, and for purposes of this opinion, I have
assumed the accuracy of the following matters, but I have not made any
independent investigation or inquiry with respect thereto and I render no
opinion on such matters:
(a) The Bank Agreements, at the time of execution and delivery
by the Bank, will have been duly and validly executed and delivered
by all of the other parties thereto other than the Bank and will
constitute the legal, valid and binding obligations of such parties
in accordance with their terms.
(b) The parties to the Bank Agreements, other than the
Bank, at the time of execution and delivery by the Bank, shall
have obtained, and there will be in full force and effect at such
time, any and all required consents, permits, and approvals
required by or from any and all federal, state, local or foreign
governmental agencies and authorities in connection with the
transactions contemplated thereby, to the extent necessary for the
legality, validity, binding effect or enforceability of the Bank
Agreements.
Based upon the foregoing and subject to the qualifications and
assumption herein before and hereinafter set forth, I am of the opinion that:
1. The Bank is a national banking association duly organized,
legally existing and in good standing under the laws of the United
States and has full right, power and authority to enter into and
perform the Bank Agreements.
2. The Bank Agreements have been duly authorized by all
necessary action on the part of the Bank, and have been duly
executed and delivered (or, with respect to any Bank Agreements to
be executed and delivered after the date hereof, will be duly
executed prior to the delivery thereof) by the Bank, and neither
the execution and delivery thereof by the Bank, nor the
consummation by the Bank of the transactions contemplated thereby
(i) will contravene or result in any breach of or constitute any
default under, or result in the creation of any Lien (other than
Permitted Liens) and other than any Lien to be indemnified against
by the Lessee or which resets from or arises our of the overall
transaction upon any property of the Bank under, any indenture,
mortgage, chattel mortgage, deed of trust, conditional sales
contract, bank loan or credit agreement, known to me, or charter
instrument or by-law, or other agreement or instruments known to
me to which the Bank is a party or by which the Bank or its
properties may be bound or affected, or (ii) will contravene any
law, rule regulation or order of the United States of America or
any state thereof (subject to the limitation contained in the
penultimate paragraph of this opinion) or any governmental
authority which is applicable to, or which as jurisdiction over,
the Bank and which is in existence on the date hereof (except that
no opinion is rendered as to any such applicable law, rule,
regulation or order to which the Bank may be or become subject
because of the activities of the Lessee or any participants in the
overall transaction other than the Bank).
3. Neither the execution and delivery by the Bank of the Bank
Agreements requires the authorization, consent or approval of, or the
giving of notice to, the registration with, any governmental
authority or agency of the State of Minnesota or of the Federal
government of the United States.
4. There are no pending or, to the best of my knowledge,
threatened actions or proceedings against or affecting the Bank
before any court or administrative agency which, if adversely
determined by the Bank, would a materially adverse effect on the
ability of the Bank to perform its obligations under the Bank
Agreements.
I am qualified to practice law in the State of Minnesota and
I do not express herein any opinion as to any matters governed by the laws
of any other state. The foregoing opinions are limited to the laws of the
State of Minnesota, the Federal laws of the United States of America, such
laws in each case as currently in effect and applicable to the Bank, and I
express no opinion concerning the laws of any other jurisdictions (or the
Federal laws of the United States of America to the extent dependent
thereto), the Federal Aviation Act, as amended, or concerning the laws and
regulations respecting interstate commerce or other laws, rules or
regulations applicable to the particular nature of the equipment, including
the nature thereof as personalty or realty. In addition, no opinion is
expressed as to title to any part of the Trust Estate, as to any matters
concerning the Employee Retirement Income Security Act of 1974, as amended,
or as to the securities laws of the United States of America. The Bank
Agreements provide that the rights and duties of the parties shall be
governed by and construed in accordance with the laws of the Start of New
York. I do not purpose to be an expert on, generally familiar with, or
qualified to express legal conclusions based upon the laws of the State of
New York, and accordingly, I express no opinion thereon or to their
applicability to the matters covered by this opinion or to the Bank
Agreements. For the purpose of this opinion, we have assumed that the
provisions of the Bank Agreements comply with the laws of the State of New
York. To the extent applicable to the Bank Agreements, the foregoing
opinions have been rendered as though the Bank Agreement were to be
governed by, and construed in accordance with, the laws of the state of
Minnesota (without reference to choice of law principals under such laws).
This opinion is rendered to you pursuant to Section 4.01(l)(ii)
of the Participation Agreement and is solely for your benefit in the above
captioned transaction. This opinion may not be relied upon by you for any
other purpose or relied upon by any other person for any purpose without the
prior written consent of the undersigned.
I rendered an opinion dated December 13, 1996 (the "Delivery
Date Opinion"), a copy of which is attached hereto, in connection with the
financing and acquisition of the Aircraft on such date. I hereby consent and
agree that the addressees hereto who were not addressees to the Delivery Date
Opinion may rely on the Delivery Date Opinion as fully and with the same force
and effect as if such addressees were originally named therein on the date of
the Delivery Date Opinion.
Very truly yours,
SCHEDULE A
Lessee
Federal Express Corporation
2007 Corporate Avenue
Memphis, Tennessee 38132
Owner Trustee
State Street Bank and Trust Company
of Connecticut, National Association
Two International Place
4th Floor
Boston, Massachusetts 02110
Indenture Trustee, Pass Through Trustee & Subordination Agent
First Security Bank, National Association
79 South Main Street
Salt Lake City, Utah 84111
Original Indenture Trustee
State Street Bank and Trust Company
Two International Place
4th Floor
Boston, Massachusetts 02110
Original Agent and Loan Participant
Morgan Guaranty Trust Company of New York
60 Wall Street
22nd Floor
New York, New York 10260
Owner Participants
Comerica Leasing Corporation
29201 Telegraph Road
2nd Floor
Southfield, Michigan 48034
Norwest Bank Minnesota, National Association
733 Marquette Avenue
Suite 300
Minneapolis, Minnesota 55479-2048
Underwriters
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
First Chicago Capital Markets, Inc.
Corporate Securities
One First National Plaza
Chicago, Illinois 60670
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
J.P. Morgan & Co.
60 Wall Street
New York, New York 10260
Liquidity Provider
Kredietbank N.V., New York Branch
125 West 55th Street
New York, New York 10019
EXHIBIT A(3)
[Letterhead of Ray, Quinney & Nebeker]
[Certificate Closing Date]
To the Persons Listed in Schedule A Attached Hereto
Re: Federal Express Corporation Trust No. N587FE
Ladies and Gentlemen:
We have acted as special counsel to First Security Bank,
National Association, a national banking association ("First Security"), in
connection with the Participation Agreement (Federal Express Corporation
Trust No. N587FE), dated as of December 1, 1996, as amended and restated
as of May 1, 1997 (the "Participation Agreement"), among Federal Express
Corporation, as Lessee, Comerica Leasing Corporation and Norwest Bank
Minnesota, National Association, as Owner Participants, State Street Bank
and Trust Company, not in its individual capacity, except as otherwise
stated, but solely as Original Indenture Trustee, Wilmington Trust Company,
not in its individual capacity, except as otherwise stated, but solely as
Owner Trustee, and First Security, not in its individual capacity, except
as otherwise stated, but solely as Indenture Trustee, Pass Through Trustee
and Subordination Agent. Pursuant to the Participation Agreement, one
McDonnell Douglas MD-11F (the "Aircraft") is being refinanced. This
opinion is furnished pursuant to Section 4.01(k)(iv) of the Participation
Agreement. Capitalized terms used herein and not otherwise defined are
used as defined in the Participation Agreement, except that references
herein to any instrument shall mean such instrument as in effect on the
date hereof.
We have examined executed counterparts or copies otherwise
identified to our satisfaction of the following documents:
(a) The Participation Agreement;
(b) The Indenture;
(c) The Ancillary Agreement I;
(d) The Ancillary Agreement II:
(e) The Collateral Account Control Agreement; and
(f) The Certificates.
(each of the documents identified in paragraphs (a) through (f) above are
collectively referred to as the "Indenture Trustee Documents").
We have also examined originals or copies of such other
documents, such corporate records, certificates and other statements of
governmental officials and corporate officers and other representatives of the
corporations or entities referred to herein and such other instruments as we
have deemed necessary or appropriate for the purposes of this opinion.
Moreover, as to certain facts material to the opinions expressed herein, we
have relied upon representations and warranties contained in the Indenture
Trustee Documents.
Based upon the foregoing and upon an examination of such
questions of law as we have considered necessary or appropriate, and subject
to the assumptions, exceptions and qualifications set forth below, we advise
you that, in our opinion:
1. First Security is a national banking association duly
organized and validly existing under the laws of the United States of
America holding a valid certificate to do business as a national
banking association, with banking and trust powers, and each of First
Security and the Indenture Trustee, as the case may be, has or had,
on the date of execution thereof, full corporate power, authority and
legal right to execute, deliver and perform each of the Indenture
Trustee Documents to which it is or is to be a party and to
authenticate the Certificates delivered on the Certificate Closing
Date.
2. Each of First Security and the Indenture Trustee, as the
case may be, has duly authorized, executed and delivered each
Indenture Trustee Document to which it is a party; each such document
constitutes a legal, valid and binding obligation of the Indenture
Trustee (and, to the extent set forth in the respective Indenture
Trustee Document, of First Security) enforceable against the
Indenture Trustee (and, to the extent set forth in the respective
Indenture Trustee Document, against First Security) in accordance
with its terms.
3. The Certificates issued and dated the Certificate Closing
Date have been duly authenticated and delivered by the Indenture
Trustee pursuant to the terms of the Indenture.
4. Neither the authorization, execution and delivery by the
Indenture Trustee or First Security, as the case may be, of the
Indenture Trustee Documents, nor the authentication and delivery by
the Indenture Trustee of the Certificates nor the fulfillment or
compliance by the Indenture Trustee or First Security with the
respective terms and provisions thereof nor the consummation of any
of the transactions by the Indenture Trustee or First Security, as
the case may be, contemplated thereby, requires the consent or
approval of, the giving of notice to, the registration with, or the
taking of any other action in respect of, any court or administrative
or governmental authority or agency of the State of Utah or the
United States of America governing the banking or trust powers of
First Security.
5. The execution, delivery and performance by the Indenture
Trustee or First Security, as the case may be, of each of the
Indenture Trustee Documents and the authentication and delivery of
the Certificates by the Indenture Trustee are not in violation of the
charter or by-laws of First Security or of any law, governmental
rule, or regulation of the State of Utah or the United States of
America governing the banking or trust powers of First Security or,
to our knowledge, of any indenture, mortgage, bank credit agreement,
note or bond purchase agreement, long-term lease, license or other
agreement or instrument to which it is a party or by which it is
bound or, to our knowledge, of any judgment or order of the State of
Utah or the United States of America relating to the banking or trust
powers of First Security.
6. There are no fees, taxes or other governmental charges
payable by the Owner Trustee, the Indenture Trustee (except taxes
imposed on fees payable to First Security) or the Certificate Holders
to the State of Utah or any political subdivision thereof in
connection with the execution, delivery or performance of any of the
Operative Agreements or in connection with the issuance and
acquisition of the Certificates by the Certificate Holders or the
beneficial interests of the Certificate Holders in the Trust
Indenture Estate solely because First Security) (a) is incorporated
under the laws of the State of Utah, (b) has its principal place of
business in the State of Utah, (c) performs (in its individual
capacity or as Indenture Trustee) any or all of its duties under the
Indenture Trustee Documents in the State of Utah, and (d) engages in
any activities unrelated to the transactions contemplated by the
Indenture Trustee Documents in the State of Utah. Neither the
Indenture Trustee nor the trust created under the Indenture will be
subject to any fee, tax or other governmental charge (except for
taxes imposed on fees payable to First Security) under the laws of
the State of Utah or any political subdivision thereof in existence
on the date hereof, on, based on or measured by, directly or
indirectly, the gross receipts, net income or value of the Trust
Indenture Estate solely because First Security (a) is incorporated
under the laws of the State of Utah, (b) has its principal place of
business in the State of Utah, (c) performs (in its individual
capacity or as Indenture Trustee) any or all of its duties under the
Indenture Trustee Documents in the State of Utah, and (d) engages in
any activities unrelated to the transactions contemplated by the
Indenture Trustee Documents in the State of Utah. There is no fee,
tax or other governmental charge (except for taxes imposed on fees
payable to First Security) under the laws of the State of Utah or any
political subdivision thereof in existence on the date hereof, on,
based on or measured by any payments under the Certificates by reason
of the creation of the trust under the Indenture solely because First
Security (a) is incorporated under the laws of the State of Utah, (b)
has its principal place of business in the State of Utah, (c)
performs (in its individual capacity or as Indenture Trustee) any or
all of its duties under the Indenture Trustee Documents in the State
of Utah, and (d) engages in any activities unrelated to the
transactions contemplated by the Indenture Trustee Documents in the
State of Utah. We express no opinion as to whether or not any fees,
taxes or other charges are now or hereafter may be payable by the
Owner Participant to the State of Utah or any political subdivision
thereof in connection with (a) the execution, delivery or performance
by any of the Indenture, the Participation Agreement or any of the
other Operative Agreements and (b) the making by the Owner
Participant of its investment in the Aircraft.
7. There are no actions, suits, investigations or proceedings
pending or, to our knowledge, threatened against or affecting First
Security or the Indenture Trustee, as the case may be, or any of its
properties in any court or before any administrative agency or
arbitrator, which, if adversely determined, would materially
adversely affect the ability of First Security or the Indenture
Trustee, as the case may be, to perform its obligations under any of
the Indenture Trustee Documents, and there are no pending or, to our
knowledge, threatened actions or proceedings before any court,
administrative agency or tribunal involving First Security or the
Indenture Trustee, as the case may be, in connection with the
transactions contemplated by any of the Indenture Trustee Documents.
The foregoing opinions are subject to the following
assumptions, exceptions and qualifications:
A. We are admitted to practice law in the State of Utah and we
do not hold ourselves out as being experts on the laws of any other
jurisdiction. The foregoing opinions are limited to the laws of the State of
Utah, the federal laws of the United States of America governing the banking
and trust powers of First Security and Title II of the United States Code
entitled "Bankruptcy". However, we express no opinion with respect to (i)
federal securities laws, including the Securities Act of 1933, as amended, the
Securities Exchange Act of 1934, as amended, and the Trust Indenture Act of
1939, as amended, (ii) the Federal Aviation Act of 1958, as amended and (iii)
state securities or blue sky laws. Insofar as the foregoing opinions relate
to the validity and enforceability in the State of Utah of the Certificates
and the other Indenture Trustee Documents expressed to be governed by the laws
of the State of New York, we have assumed that the laws of New York are
identical to the laws of Utah in all material respects, and that the
Certificates and such Indenture Trustee Documents constitute legal, valid,
binding and enforceable documents or instruments under such laws (as to which
we express no opinion). No opinion is expressed as to the priority of any
security interest or as to title to any part of the Trust Estate.
B. The foregoing opinions regarding enforceability of any
document or instrument, are subject to (i) applicable bankruptcy, insolvency,
moratorium, reorganization, receivership and similar laws affecting the rights
and remedies of creditors generally, and (ii) general principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or at law).
C. We have assumed the due authorization, execution and
delivery by each of the parties thereto, other than First Security and the
Indenture Trustee, of the Indenture Trustee Documents to which each is a party
and that each of such parties has the full power, authority and legal right to
execute and deliver each such document.
D. We have assumed that all signatures (other than those of
the Indenture Trustee or First Security) on documents and instruments
examined by us are genuine, that all documents and instruments submitted to
us as originals are authentic, and that all documents and instruments
submitted to us as copies conform with the originals, which facts we have
not independently verified.
E. We have assumed that the Participation Agreement and the
transactions contemplated thereby are not within the prohibitions of Section
406 of the Employee Retirement Income Security Act of 1974.
This opinion is rendered solely for your benefit and may not be
relied upon by any other person or entity for any purpose without our prior
written consent.
Very truly yours,
Ray, Quinney & Nebeker
SCHEDULE A
Lessee
Federal Express Corporation
2007 Corporate Avenue
Memphis, Tennessee 38132
Owner Trustee
State Street Bank and Trust Company
of Connecticut, National Association
Two International Place
4th Floor
Boston, Massachusetts 02110
Indenture Trustee, Pass Through Trustee & Subordination Agent
First Security Bank, National Association
79 South Main Street
Salt Lake City, Utah 84111
Original Indenture Trustee
State Street Bank and Trust Company
Two International Place
4th Floor
Boston, Massachusetts 02110
Original Agent and Loan Participant
Morgan Guaranty Trust Company of New York
60 Wall Street
22nd Floor
New York, New York 10260
Owner Participants
Comerica Leasing Corporation
29201 Telegraph Road
2nd Floor
Southfield, Michigan 48034
Norwest Bank Minnesota, National Association
733 Marquette Avenue
Suite 300
Minneapolis, Minnesota 55479-2048
Underwriters
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
First Chicago Capital Markets, Inc.
Corporate Securities
One First National Plaza
Chicago, Illinois 60670
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
J.P. Morgan & Co.
60 Wall Street
New York, New York 10260
Liquidity Provider
Kredietbank N.V., New York Branch
125 West 55th Street
New York, New York 10019
EXHIBIT A(4)
[Letterhead of Daugherty, Fowler & Peregrin]
[Refunding Date]
To the Parties Named on Schedule A attached hereto
Ladies and Gentlemen:
This opinion is furnished to you pursuant to Section
4.01(l)(iv) of the Participation Agreement (Federal Express Corporation
Trust No. N587FE), dated as of December 1, 1996, as amended and restated
as of May 1, 1997 (the "Participation Agreement") among Federal Express
Corporation, as lessee (the "Lessee"), Comerica Leasing Corporation and
Norwest Bank Minnesota, National Association, as owner participants (the
"Owner Participants"), Morgan Guaranty Trust Company of New York, as
original loan participant (the "Original Loan Participant"), Wilmington
Trust Company, as owner trustee (the "Owner Trustee"), State Street Bank
and Trust Company, as original indenture trustee (the "Original Indenture
Trustee"), and First Security Bank, National Association, as indenture
trustee, pass through trustee and subordination agent (the "Pass Through
Trustee"), which Participation Agreement amends and restates that certain
Participation Agreement (Federal Express Corporation Trust No. N587FE),
dated as of December 1, 1996 (the "Original Participation Agreement") among
the Lessee, the Owner Participants, the Original Loan Participants, the
Owner Trustee and the Original Indenture Trustee, with respect to that
portion of Subtitle VII of Title 49 of the United States Code relative to
the recordation of instruments and the registration of aircraft thereunder.
The capitalized terms herein shall, unless otherwise defined,
have the same meanings given them in the Participation Agreement or in Annex I
attached hereto.
We have examined and filed on this date with the Federal
Aviation Administration (the "FAA") the following described instruments at the
respective times listed below:
(a) Trust Agreement (Federal Express Corporation Trust No.
N587FE) dated as of December 1, 1996, as amended and
restated as of May 1, 1997, 1996 (the "Trust Agreement")
between the Owner Participants and the Owner Trustee,
which Trust Agreement amends and restates the Original
Trust Agreement, which Trust Agreement was filed at ____
_.m., C._.T.;
(b) Trust Indenture and Security Agreement (Federal Express
Corporation Trust No. N587FE) dated as of December 1,
1996, as amended and restated as of May 1, 1997 (the
"Indenture") between the Owner Trustee and the
Indenture Trustee, which Indenture amends and restates
the Original Indenture, which Indenture was filed at
____ _.m., C._.T.; and,
(c) Lease Agreement (Federal Express Corporation Trust No.
N587FE) dated as of December 1, 1996, as amended and
restated as of May 1, 1997 (the "Lease") between the
Owner Trustee, as lessor, and the Lessee, as lessee,
which Lease amends and restates the Original Lease,
with the Indenture attached thereto, which Lease with
the Indenture attached was filed at ____ _.m., C._.T.
The Confidential Omissions were intentionally omitted from the
FAA filing counterparts of the Lease and the Indenture as containing
confidential financial information.
Based upon our examination of the above described instruments
and of such records of the FAA as we deemed necessary to render this opinion,
it is our opinion that:
1. AC Form 8050-2 Aircraft Bill of Sale dated December 13, 1996
(the "FAA Bill of Sale") from the Lessee, as seller, conveying
title to the Airframe to the Owner Trustee has been duly
recorded by the FAA on __________________ and assigned
Conveyance No. ______;
2. the Indenture and the Lease with the Indenture attached are in
due form for recordation by and have been duly filed for
recordation with the FAA pursuant to and in accordance with the
provisions of 49 U.S.C. Section 44107;
3. the Trust Agreement is in due form for filing and has been duly
filed with the FAA pursuant to and in accordance with the
provisions of 49 U.S.C. Section 44103(a);
4. the Original Trust Agreement was duly filed with the FAA on
December 13, 1996 pursuant to and in accordance with the
provisions of 49 U.S.C. Section 44103(a);
5. the Original Indenture with the Indenture and Security
Agreement Supplement attached has been duly filed with and
duly recorded by the FAA pursuant to and in accordance with
the provisions of 49 U.S.C. Section 44107;
6. the Original Lease with the Lease Supplement, the Original
Indenture and the Indenture and Security Agreement Supplement
attached was duly filed with and duly recorded by the FAA
pursuant to and in accordance with the provisions of 49 U.S.C.
Section 44107;
7. the Airframe is duly registered in the name of the Owner
Trustee pursuant to and in accordance with the provisions of
49 U.S.C. Section 44103(a);
8. the Owner Trustee has valid legal title to the Airframe and the
Aircraft is free and clear of all Liens, except (i) the
security interest created by the Original Indenture, as amended
and restated by the Indenture, as supplemented by the Indenture
and Security Agreement Supplement, and (ii) the rights of the
parties under the Original Lease, as amended and restated by
the Lease, as supplemented by the Lease Supplement;
9. the Original Indenture, as amended and restated by the
Indenture, as supplemented by the Indenture and Security
Agreement Supplement, constitutes a duly perfected first
priority security interest in the Aircraft and a duly perfected
first assignment of all the right, title and interest of the
Owner Trustee in, to and under the Original Lease, as amended
and restated by the Lease, as supplemented by the Lease
Supplement (insofar as such assignment affects an interest
covered by the recording system established by the FAA pursuant
to 49 U.S.C. Section 44107), and no other registration of the
Airframe or filings other than filings with the FAA (which have
been duly effected) are necessary in order to perfect in any
applicable jurisdiction in the United States (A) the Owner
Trustee's title to the Airframe or (B) such security interest
and assignment (insofar as such assignment affects an interest
covered by the recording system established by the FAA pursuant
to 49 U.S.C. Section 44107), it being understood that no
opinion is herein expressed as to the validity, priority or
enforceability of such security interest and assignment under
local law or as to the recognition of the perfection of such
security interest and assignment as against third parties in
any legal proceeding outside the United States;
10. no authorization, approval, consent, license or order of, or
registration with, or the giving of notice to, the FAA is
required for the valid authorization, delivery and performance
of the Original Lease, as amended and restated by the Lease, as
supplemented by the Lease Supplement, the Original Indenture,
as amended and restated by the Indenture, as supplemented by
the Indenture and Security Agreement Supplement, or the
Original Trust Agreement, as amended and restated by the Trust
Agreement, except for such filings as are referred to in our
opinion dated September 23, 1996 (which have been duly
effected) and the filings referred to in clauses (a), (b) and
(c) above; and,
11. neither the authorization, issuance and delivery of the
Certificates, the execution and delivery by the parties thereto
of the Original Trust Agreement, the Trust Agreement, the
Original Indenture, the Indenture, the Indenture and Security
Agreement Supplement, the Original Participation Agreement, the
Participation Agreement, the FAA Bill of Sale, the Original
Lease, the Lease and the Lease Supplement or the performance by
the parties thereto of: (i) the Original Trust Agreement, as
amended and restated by the Trust Agreement; (ii) the Original
Indenture, as amended and restated by the Indenture, as
supplemented by the Indenture and Security Agreement
Supplement; (iii) the Original Participation Agreement, as
amended and restated by the Participation Agreement; and (iv)
the Original Lease, as amended and restated by the Lease, as
supplemented by the Lease Supplement, in accordance with the
provisions thereof, nor the consummation by the parties thereto
of any of the transactions contemplated thereby, requires the
consent or approval of, or the giving of notice to, or the
registration with, or the taking of any other action in respect
of, the FAA except for the filings, the recordations and the
filings for recordations specified elsewhere in this opinion.
No opinion is expressed as to the Airframe during any period or
periods of time during which it has not been subject to United States
registration.
No opinion is expressed as to laws other than Federal laws
of the United States. In rendering this opinion, we were subject to the
accuracy of the FAA, its employees and agents, in the filing, indexing and
recording of instruments filed with the FAA and in the search for
encumbrance cross-reference index cards for the Engines. Further, in
rendering this opinion we are assuming the validity and enforceability of
the above described instruments under local law. Since our examination was
limited to records maintained by the FAA, our opinion does not cover liens
which are perfected without the filing of notice thereof with the FAA, such
as federal tax liens, liens arising under 29 U.S.C. Section 1368(a),
possessory artisan's liens, or matters of which the parties have actual
notice. In rendering this opinion we are assuming that there are no
documents with respect to the Aircraft which have been filed for recording
under the recording system of the FAA but have not yet been listed in the
available records of such system as having been so filed.
In rendering this opinion we have relied upon the opinion of the
Assistant Chief Counsel of the Aeronautical Center dated ____________, 1997
and have continued to rely upon the opinion of the Assistant Chief Counsel of
the Aeronautical Center dated __________________, copies of which are attached
hereto.
Very truly yours,
Robert M. Peregrin
For the Firm
SCHEDULE A
Lessee
Federal Express Corporation
2007 Corporate Avenue
Memphis, Tennessee 38132
Owner Trustee
State Street Bank and Trust Company
of Connecticut, National Association
Two International Place
4th Floor
Boston, Massachusetts 02110
Indenture Trustee, Pass Through Trustee & Subordination Agent
First Security Bank, National Association
79 South Main Street
Salt Lake City, Utah 84111
Original Indenture Trustee
State Street Bank and Trust Company
Two International Place
4th Floor
Boston, Massachusetts 02110
Original Agent and Loan Participant
Morgan Guaranty Trust Company of New York
60 Wall Street
22nd Floor
New York, New York 10260
Owner Participants
Comerica Leasing Corporation
29201 Telegraph Road
2nd Floor
Southfield, Michigan 48034
Norwest Bank Minnesota, National Association
733 Marquette Avenue
Suite 300
Minneapolis, Minnesota 55479-2048
Underwriters
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
First Chicago Capital Markets, Inc.
Corporate Securities
One First National Plaza
Chicago, Illinois 60670
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
J.P. Morgan & Co.
60 Wall Street
New York, New York 10260
Liquidity Provider
Kredietbank N.V., New York Branch
125 West 55th Street
New York, New York 10019
Annex I
Certain Definitions
Airframe, Engines and Aircraft
One (1) McDonnell Douglas MD-11F aircraft bearing
manufacturer's serial number 48489 and U.S. Registration No. N587FE (the
"Airframe") and three (3) General Electric CF6-80C2-D1F aircraft engines
bearing manufacturer's serial numbers ___-___, ___-___ and ___-___ (the
"Engines") (the Airframe and the Engines are referred to collectively as the
"Aircraft").
Original Trust Agreement
Trust Agreement (Federal Express Corporation Trust No. N587FE)
dated as of December 1, 1996 among Comerica Leasing Corporation and Norwest
Bank Minnesota, National Association, as owner participants, and Wilmington
Trust Company, as owner trustee, which was filed with the FAA on December 13,
1996.
Original Indenture
Trust Indenture, Mortgage and Security Agreement (Federal
Express Corporation Trust No. N587FE) dated as of December 1, 1996 between
Wilmington Trust Company, as owner trustee, and State Street Bank and Trust
Company, as indenture trustee, which together with the Indenture and Security
Agreement Supplement (as hereinafter defined) attached thereto was recorded
as one instrument by the FAA on January 27, 1997 and assigned Conveyance No.
T053253.
Indenture and Security Agreement Supplement
Indenture and Security Agreement Supplement No. 1 (Federal
Express Corporation Trust No. N587FE) dated December 13, 1996 between
Wilmington Trust Company, as owner trustee, and State Street Bank and Trust
Company, as indenture trustee, with respect to the Aircraft, which was
attached to and recorded by the FAA as one instrument with the Original
Indenture.
Original Lease
Lease Agreement (Federal Express Corporation Trust No. N587FE)
dated as of December 13, 1996 between Wilmington Trust Company, as owner
trustee, as lessor, and Federal Express Corporation, as lessee, which together
with the Lease Supplement (as hereinafter defined), the Original Indenture and
the Indenture and Security Agreement Supplement attached thereto was recorded
as one instrument by the FAA on January 27, 1997 and assigned Conveyance No.
T053254.
Lease Supplement
Lease Supplement No. 1 (Federal Express Corporation Trust No.
N587FE) dated December 13, 1996 between Wilmington Trust Company, as owner
trustee, as lessor, and Federal Express Corporation, as lessee, with respect
to the Aircraft, which was attached to and recorded by the FAA as one
instrument with the Original Lease.
Confidential Omissions
The Lease was filed with the FAA, with (i) Basic Rent (Schedule
II), (ii) the Stipulated Loss Values (Schedule III), (iii) the Termination
Values (Schedule IV), (iv) the Purchase Option Schedule (Schedule V) omitted
from the FAA filing counterpart thereof as containing confidential financial
information; and (v) the purchase price under Section 4.02(a)(F) of the Lease
set forth in Ancillary Agreement II, which was not attached to the FAA filing
counterpart of the Lease or otherwise filed with the FAA for recordation.
EXHIBIT A(5)
[Letterhead of Morris, James Hitchens & Williams]
[Refunding Date]
To Each of the Parties Listed on Schedule A Hereto
Re: Federal Express Corporation Trust No. N587FE
Ladies and Gentlemen:
We have acted as special counsel to Wilmington Trust
Company, a Delaware banking corporation ("Wilmington Trust"), in connection
with the Trust Agreement (Federal Express Corporation Trust No. N587FE),
dated as of December 1, 1996, as amended and restated as of May 1, 1997
(the "Trust Agreement"), among Wilmington Trust and Comerica Leasing
Corporation and Norwest Bank Minnesota, National Association (the "Owner
Participants"). Pursuant to the Participation Agreement (Federal Express
Corporation Trust No. N587FE), dated as of December 1, 1996, as amended
and restated as of May 1, 1997 (the "Participation Agreement"), among
Federal Express Corporation, as Lessee (the "Lessee"), the Owner
Participants, State Street Bank and Trust Company, as Original Indenture
Trustee, First Security Bank, National Association, as Indenture Trustee
(the "Indenture Trustee"), Pass Through Trustee and Subordination Agent,
Morgan Guaranty Trust Company of New York, as Original Loan Participant
(the "Original Loan Participant") and Wilmington Trust, not in its
individual capacity except as specifically set forth therein but solely as
Owner Trustee (the "Owner Trustee") under the Trust Agreement. This
opinion is furnished pursuant to Section 4.01(l)(vii) of the Participation
Agreement. Capitalized terms used herein and not otherwise defined are
used as defined in or by reference in Schedule II to the Participation
Agreement, except that references herein to any instrument shall mean such
instrument as in effect on the date hereof.
We have examined executed counterparts or copies otherwise
identified to our satisfaction of the following documents:
(a) The Participation Agreement;
(b) The Trust Agreement;
(c) The Indenture;
(d) The Indenture and Security Agreement Supplement relating
to the Aircraft and dated December 13, 1996 (the
"Indenture Supplement");
(e) The Lease;
(f) The Lease Supplement relating to the Aircraft and dated
December 13, 1996 (the "Lease Supplement");
(g) The Engine Warranty Assignment;
(h) Each Ancillary Agreement dated the date hereof (each of
the documents identified in paragraphs (a) through (h)
above being collectively referred to as the "Owner
Trustee Documents");
(i) The Collateral Control Agreement; and
(j) The Certificate being issued today (the "Certificate").
We have also examined originals or copies of such other
documents, such corporate records, certificates and other statements of
governmental officials and corporate officers and other representatives of the
corporations or entities referred to herein and such other instruments as we
have deemed necessary or appropriate for the purposes of this opinion.
Moreover, as to certain facts material to the opinions expressed herein, we
have relied upon representations and warranties contained in the Owner Trustee
Documents.
Based upon the foregoing and upon an examination of such
questions of law as we have considered necessary or appropriate, and subject
to the assumptions, exceptions and qualifications set forth below, we advise
you that, in our opinion:
1. Wilmington Trust has been duly incorporated and is validly
existing as a Delaware banking corporation in good standing under the
laws of the State of Delaware, is a Citizen of the United States, and
each of Wilmington Trust and the Owner Trustee, as the case may be,
has full corporate power, authority and legal right to execute,
deliver and perform each of the Owner Trustee Documents and to issue,
execute, deliver and perform the Certificate.
3. Each of Wilmington Trust and the Owner Trustee, as the
case may be, has duly authorized, executed and delivered each
Owner Trustee Document to which it is a party; each such document
constitutes a legal, valid and binding obligation of the Owner
Trustee (and, to the extent set forth in the respective Owner
Trustee Document, of Wilmington Trust) enforceable against the
Owner Trustee (and, to the extent set forth in the respective
Owner Trustee Document, against Wilmington Trust) in accordance
with its terms; and the Trust Agreement constitutes a legal, valid
and binding obligation of the Owner Participants enforceable
against the Owner Participants in accordance with its terms. The
Loan Certificate has been duly issued, executed and delivered by
the Owner Trustee, pursuant to authorization contained in the
Trust Agreement, and constitutes the legal, valid and binding
obligation of the Owner Trustee enforceable against the Owner
Trustee in accordance with its terms and the terms of the
Indenture; and the Loan Certificate is entitled to the benefits
and security afforded by the Indenture in accordance with its
terms and the terms of the Indenture.
4. On the Delivery Date, the Owner Trustee received from the
Lessee such title to the Aircraft as the Lessee conveyed to the Owner
Trustee, subject to the rights of the Owner Trustee and the Lessee
under the Lease and the security interest created pursuant to the
Indenture and the Indenture Supplement; and to our knowledge, there
exist no Liens affecting the title of the Owner Trustee to the
Lessor's Estate resulting from claims against Wilmington Trust not
related to the ownership of the Lessor's Estate or the administration
of the Lessor's Estate or any other transaction pursuant to the
Indenture or any document included in the Trust Indenture Estate.
5. All the properties which are part of the Trust Indenture
Estate have been pledged and mortgaged with the Indenture Trustee as
part of the Trust Indenture Estate, and the beneficial interest of
the Owner Participants under the Trust Agreement in and to such
properties is subject, to the extent provided in the Indenture, to
the Lien of the Indenture in favor of the holder(s) of the Loan
Certificate(s) issued and to be issued under the Indenture.
6. To the extent that the Uniform Commercial Code of the State
of Delaware (the "UCC") is applicable, except for the Indenture
Trustee's taking possession of all monies and securities (including
instruments) constituting part of the Trust Indenture Estate, no
action, including the filing or recording of any document, is
necessary (i) to create under the UCC the security interest in the
Trust Indenture Estate (including the grant and assignment unto the
Indenture Trustee of the security interest in all estate, right,
title and interest of the Owner Trustee in, to and under the Lease,
the Lease Supplement and the Participation Agreement), which the
Indenture by its terms purports to create in favor of the Indenture
Trustee, and (ii) to perfect in the State of Delaware such security
interest, except for the filing of a UCC financing statement in the
office of the Secretary of State of the State of Delaware with
respect to the security interest, which filing has been duly
effected, and the filing of continuation statements with respect
thereto required to be filed at periodic intervals under the UCC.
7. The Trust Agreement duly creates a legal and valid trust
under Delaware law, the trust created by the Trust Agreement has been
duly created and exists for the benefit of the Owner Participants,
and the Trust Agreement creates for the benefit of the Owner
Participants the interest in the properties referred to in Section
1.02 of the Trust Agreement which the Trust Agreement by its terms
purports to create, which interest is subject and subordinate to the
security interests created by the Indenture to the extent provided in
the Indenture.
8. Neither the authorization, execution and delivery by the
Owner Trustee or Wilmington Trust, as the case may be, of the Owner
Trustee Documents, nor the issuance, execution and delivery by the
Owner Trustee of the Loan Certificate nor the fulfillment or
compliance by the Owner Trustee or Wilmington Trust with the
respective terms and provisions thereof nor the consummation of any
of the transactions by the Owner Trustee or Wilmington Trust, as the
case may be, contemplated thereby, requires the consent or approval
of, the giving of notice to, the registration with, or the taking of
any other action in respect of, any court or administrative or
governmental authority or agency of the State of Delaware or the
United States of America governing the banking or trust powers of
Wilmington Trust.
9. Assuming that (i) the Aircraft is not used in Delaware
and is not physically located in Delaware at the commencement or
termination of the Term or during such Term, (ii) in connection
with any sale of the Aircraft, such Aircraft will not be
physically delivered in Delaware to a buyer nor be shipped from a
point within Delaware to a buyer, and (iii) the trust created by
the Trust Agreement is treated as a grantor trust for federal
income tax purposes within the contemplation of Sections 671
through 678 of the Internal Revenue Code of 1986, there are no
fees, taxes, or other charges (except taxes imposed on fees
payable to the Owner Trustee) payable to the State of Delaware or
any political subdivision thereof in connection with the
execution, delivery or performance by the Owner Trustee, the
Indenture Trustee, the Lessee or any Participant, as the case may
be, of the Owner Trustee Documents or in connection with the
making by each Owner Participant of its respective investment in
the Aircraft or its acquisition of the beneficial interest in the
Lessor's Estate or in connection with the issuance and acquisition
of the Loan Certificate, and neither the Owner Trustee, the
Lessor's Estate nor the trust created by the Trust Agreement will
be subject to any fee, tax or other governmental charge (except
taxes on fees payable to the Owner Trustee) under the laws of the
State of Delaware or any political subdivision thereof on, based
on or measured by, directly or indirectly, the gross receipts, net
income or value of the Lessor's Estate solely by reason of the
creation or continued existence of the trust under the terms of
the Trust Agreement pursuant to the laws of the State of Delaware
or the Owner Trustee's performance of its duties under the Trust
Agreement.
10. The execution, delivery and performance by the Owner
Trustee or Wilmington Trust, as the case may be, of each of the
Owner Trustee Documents and the issuance, execution, delivery and
performance of the Loan Certificate by the Owner Trustee are not
in violation of the charter or by-laws of Wilmington Trust or of
any law, governmental rule, or regulation of the State of Delaware
or the United States of America governing the banking or trust
powers of Wilmington Trust or, to our knowledge, of any indenture,
mortgage, bank credit agreement, note or bond purchase agreement,
long-term lease, license or other agreement or instrument to which
it is a party or by which it is bound or, to our knowledge, of any
judgment or order of the State of Delaware or the United States of
America relating to the banking or trust powers of Wilmington
Trust.
11. There is no fee, tax or other governmental charge under
the laws of the State of Delaware or any political subdivision
thereof in existence on the date hereof on, based on or measured
by any payments under the Loan Certificate or the beneficial
interests in the Lessor's Estate, by reason of the creation of the
trust under the Trust Agreement, pursuant to the laws of the State
of Delaware or the Owner Trustee's performance of its duties under
the Trust Agreement, within the State of Delaware, which would not
have been imposed if Wilmington Trust did not have its principal
place of business and did not perform its obligations under the
Owner Trustee Documents in the State of Delaware.
12. Under 6 Del.C. c. 13 or any other similar law of the
State of Delaware relating to fraudulent conveyances, no filing,
recording or publication is necessary or appropriate to protect the
interest of (i) the Owner Trustee as Lessor or owner with respect to
the Aircraft and (ii) the Indenture Trustee as secured party under
the Indenture against claims of creditors of the Owner Trustee
resulting from the sale and leaseback of the Aircraft pursuant to the
Bills of Sale and the Lease.
13. Neither a Delaware court nor a federal court applying
federal law or Delaware law, if properly presented with the issue and
after having properly considered such issue, would permit the Owner
Participants to terminate the Trust Agreement, except in accordance
with the Owner Trustee Documents or with the consent of the Indenture
Trustee, until the Lien of the Indenture on the Trust Indenture
Estate has not been released and until payment in full of the
principal of, and premium, if any and interest on, the Certificate.
14. Under the laws of the State of Delaware, as long as the
Trust Agreement has not been terminated in accordance with its terms
or with the consent of the Indenture Trustee, creditors of any person
that is an Owner Participant, holders of a lien against the assets of
any such person and representatives of creditors of any such person,
such as trustees, receivers or liquidators (whether or not any
insolvency proceeding has been commenced) (collectively, the
"Creditors") may acquire legal, valid and enforceable claims and
liens, as to the Trust Estate, only against the rights of such Owner
Participant under the Trust Agreement or in the Trust Estate, and may
not through the enforcement of such Creditor's rights, acquire any
greater rights than the rights of such Owner Participant with respect
to the Trust Agreement or the Trust Estate.
14. There are no actions, suits, investigations or proceedings
pending or, to our knowledge, threatened against or affecting
Wilmington Trust or the Owner Trustee, as the case may be, or any of
its properties in any court or before any administrative agency or
arbitrator, which, if adversely determined, would materially
adversely affect the ability of Wilmington Trust or the Owner
Trustee, as the case may be, to perform its obligations under any of
the Owner Trustee Documents, and there are no pending or, to our
knowledge, threatened actions or proceedings before any court,
administrative agency or tribunal involving Wilmington Trust or the
Owner Trustee, as the case may be, in connection with the
transactions contemplated by any of the Owner Trustee Documents.
The foregoing opinions are subject to the following
assumptions, exceptions and qualifications:
A. The foregoing opinions are limited to the federal laws
of the United States of America governing the banking and trust powers of
Wilmington Trust and the laws of the State of Delaware, except that the
opinion set forth in paragraph 13 above is limited to the laws of the State
of Delaware and Title 11 of the United States Code entitled "Bankruptcy",
and the opinion set forth in paragraph 14 above is limited to the laws of
the State of Delaware. In addition, we express no opinion with respect to
(i) federal securities laws, including the Securities Act of 1933, as
amended, the Securities Exchange Act of 1934, as amended, and the Trust
Indenture Act of 1939, as amended, (ii) the Federal Aviation Act of 1958,
as amended (except with respect to the opinion set forth in paragraph 1
above concerning the citizenship of Wilmington Trust), (iii) the Federal
Communication Act of 1934, as amended, or (iv) state securities or blue sky
laws. Insofar as the foregoing opinions relate to the validity and
enforceability of the Loan Certificate and the other Owner Trustee
Documents expressed to be governed by laws other than the laws of the State
of Delaware, we have assumed that the Loan Certificate and such Owner
Trustee Documents constitute legal, valid, binding and enforceable
documents or instruments under such laws (as to which we express no
opinion).
B. The foregoing opinions regarding enforceability of any
document or instrument are subject to (i) applicable bankruptcy, insolvency,
moratorium, reorganization, receivership and similar laws affecting the rights
and remedies of creditors generally, and (ii) general principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or at law).
C. We have assumed the due authorization, execution and
delivery by each of the parties thereto (other than Wilmington Trust and the
Owner Trustee) of the Owner Trustee Documents to which each is a party and
that each of such parties has the full power, authority and legal right to
execute and deliver each such document.
D. The opinion set forth in paragraph 1 above concerning the
citizenship of Wilmington Trust is based upon the facts contained in an
affidavit of Wilmington Trust, made by its Assistant Vice President, the facts
set forth in which we have not independently verified.
E. We have assumed the due authentication of the Loan
Certificate by the Indenture Trustee.
F. We have assumed that all signatures (other than those of
the Owner Trustee or Wilmington Trust) on documents and instruments
examined by us are genuine, that all documents and instruments submitted to
us as originals are authentic, and that all documents and instruments
submitted to us as copies conform with the originals, which facts we have
not independently verified.
G. We do not purport to be experts in respect of, or express
any opinion concerning, aviation law or other laws, rules or regulations
applicable to the aircraft in general.
H. We have made no investigation of, and we express no opinion
concerning, the nature of the title to any part of the Lessor's Estate or the
priority of any mortgage or security interest.
I. We have assumed that the Participation Agreement and the
transactions contemplated thereby are not within the prohibitions of Section
406 of the Employee Retirement Income Security Act of 1974.
J. The opinions set forth in paragraphs 13 and 14 above are
subject to applicable fraudulent conveyance laws and principles of equity
(regardless of whether considered or applied in a proceeding in equity or at
law) and should be interpreted in accordance with Special Report by the TriBar
Opinion Committee, Opinions in the Bankruptcy Context: Rating Agency,
Structural Financing and Chapter 11 Transactions, 46 Bus.Law. 717 (1991).
This opinion is rendered solely for your benefit and may not be
relied upon by any other person or entity for any purpose without our prior
written consent, except that the law firm of Davis Polk & Wardwell may rely on
this opinion in connection with the rendering of its opinion dated the date
hereof in connection with the financing described herein.
Very truly yours,
Morris, James Hitchens & Williams
SCHEDULE A
Lessee
Federal Express Corporation
2007 Corporate Avenue
Memphis, Tennessee 38132
Owner Trustee
State Street Bank and Trust Company
of Connecticut, National Association
Two International Place
4th Floor
Boston, Massachusetts 02110
Indenture Trustee, Pass Through Trustee & Subordination Agent
First Security Bank, National Association
79 South Main Street
Salt Lake City, Utah 84111
Original Indenture Trustee
State Street Bank and Trust Company
Two International Place
4th Floor
Boston, Massachusetts 02110
Original Agent and Loan Participant
Morgan Guaranty Trust Company of New York
60 Wall Street
22nd Floor
New York, New York 10260
Owner Participants
Comerica Leasing Corporation
29201 Telegraph Road
2nd Floor
Southfield, Michigan 48034
Norwest Bank Minnesota, National Association
733 Marquette Avenue
Suite 300
Minneapolis, Minnesota 55479-2048
Underwriters
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
First Chicago Capital Markets, Inc.
Corporate Securities
One First National Plaza
Chicago, Illinois 60670
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
J.P. Morgan & Co.
60 Wall Street
New York, New York 10260
Liquidity Provider
Kredietbank N.V., New York Branch
125 West 55th Street
New York, New York 10019
EXHIBIT A(6)
[Letterhead of Ray, Quinney & Nebeker]
[Refunding Date]
To the Persons Listed in Schedule A Attached Hereto
Re: Federal Express Corporation Trust No. N587FE
Ladies and Gentlemen:
We have acted as special counsel to First Security Bank,
National Association, a national banking association ("First Security"), in
connection with the Pass Through Trust Agreement dated as of May 1, 1997
(the "Pass Through Trust Agreement"), as supplemented by the Series
Supplements dated the date hereof between Federal Express Corporation and
the First Security, not in its individual capacity, except as otherwise
stated, but solely as Pass Through Trustee, designated as Series Supplement
1997-1-A, 1997-1-B and 1997-1-C, respectively (the "Series Supplements")
and the Participation Agreement (Federal Express Corporation Trust No.
N587FE), dated as of December 1, 1996, as amended and restated as of May 1,
1997 (the "Participation Agreement"), among Federal Express Corporation, as
Lessee, Comerica Leasing Corporation and Norwest Bank Minnesota, National
Association, as Owner Participants, Morgan Guaranty Trust Company of New
York, as Original Loan Participant, State Street Bank and Trust Company,
not in its individual capacity, except as otherwise stated, but solely as
Original Indenture Trustee, Wilmington Trust Company, not in its individual
capacity, except as otherwise stated, but solely as Owner Trustee, and
First Security, as Indenture Trustee, Pass Through Trustee and
Subordination Agent. Pursuant to the Participation Agreement, one
McDonnell Douglas MD-11F aircraft bearing U.S. Registration No. N587FE
(the "Aircraft") is being refinanced. This opinion is furnished pursuant
to Section 4.01(k)(iv) of the Participation Agreement. Capitalized terms
used herein and not otherwise defined are used as defined in the
Participation Agreement, except that references herein to any instrument
shall mean such instrument as in effect on the date hereof.
We have examined executed counterparts or copies otherwise
identified to our satisfaction of the following documents:
(a) The Pass Through Trust Agreement;
(b) The Series Supplements;
(c) The Pass Through Certificates;
(d) The Participation Agreement;
(e) The Intercreditor Agreement; and
(f) Each Liquidity Facility.
(each of the documents identified in paragraphs (a) through (e) are being
collectively referred to as the "Pass Through Trustee Documents" and each of
the documents identified in paragraphs (d) through (f) are being collectively
referred to as the "Subordination Agent Documents").
We have also examined originals or copies of such other
documents, such corporate records, certificates and other statements of
governmental officials and corporate officers and other representatives of the
corporations or entities referred to herein and such other instruments as we
have deemed necessary or appropriate for the purposes of this opinion.
Moreover, as to certain facts material to the opinions expressed herein, we
have relied upon representations and warranties contained in the Pass Through
Trustee Documents or the Subordination Agent Documents, as the case may be.
Based upon the foregoing and upon an examination of such
questions of law as we have considered necessary or appropriate, and subject
to the assumptions, exceptions and qualifications set forth below, we advise
you that, in our opinion:
With respect to the opinions set forth in paragraph 8 above,
with your permission we have relied upon, and this opinion is limited by, the
assumptions set forth in the discussion entitled "Certain Utah Taxes" in the
Prospectus Supplement to the Prospectus forming part of Registration Number
No. 333-07691 (the "Registration Statement") for the registration of the Pass
Through Certificates with the Securities and Exchange Commission. We express
no opinion as to the correctness of the foregoing assumptions and we have
conducted no independent investigation in this regard.
1. First Security is a national banking association duly
organized and validly existing under the laws of the United States of
America holding a valid certificate to do business as a national
banking association, with banking and trust powers.
2. Each of First Security, the Pass Through Trustee and the
Subordination Agent, as the case may be, has or had, on the date of
execution thereof, full corporate power, authority and legal right to
execute, deliver and perform each of the Pass Through Trustee
Documents and the Subordination Agent Documents, as the case may be,
and to authenticate the Pass Through Certificates delivered on the
Certificate Closing Date.
3. Each of First Security, the Pass Through Trustee and the
Subordination Agent has duly authorized, executed and delivered each
Pass Through Trustee Document or Subordination Agent Document, as the
case may be; each such document constitutes a legal, valid and
binding obligation of the Pass Through Trustee or the Subordination
Agent, as the case may be (and, to the extent set forth in the
respective Pass Through Trustee Document or Subordination Agent
Document, of First Security) enforceable against the Pass Through
Trustee or the Subordination Agent, as the case may be (and, to the
extent set forth in the respective Pass Through Trustee Document or
Subordination Agent Document, against First Security) in accordance
with its terms.
4. The Pass Through Certificates issued and dated the
Certificate Closing Date have been duly authorized and validly
executed, issued, delivered and authenticated by the Pass Through
Trustee pursuant to the Pass Through Trust Agreement and the Series
Supplements; and the Pass Through Certificates acquired by the
Underwriters under the Underwriting Agreement are enforceable against
the Pass Through Trustee and are entitled to the benefits of the
related Pass Through Trust Agreement and the related Series
Supplements.
5. No order, license, consent, permit, authorization or
approval of or exemption by, and no notice to or filing with, or the
taking of any other action in respect of, any Utah or Federal
governmental authority governing the banking or trust powers of First
Security, the Pass Through Trustee or the Subordination Agent, and no
filing, recording, publication or registration in any public office
is required under Utah or Federal law pertaining to its banking or
trust powers for the due execution, delivery or performance by First
Security, individually or as Pass Through Trustee or Subordination
Agent, as the case may be, of the Pass Through Trustee Documents
(other than the Pass Through Trust Agreement) or the Subordination
Agent Documents, as the case may be, and of the certificate of
authentication, as Pass Through Trustee, on the Pass Through
Certificates, or for the legality, validity, binding effect or
enforceability thereof against First Security, the Pass Through
Trustee or the Subordination Agent, as the case may be.
6. The execution, delivery and performance by the Pass
Through Trustee or First Security, as the case may be, of each of
the Pass Through Documents and the Subordination Agent or First
Security, as the case may be, of each of the Subordination Agent
Documents, and the issuance, execution, delivery and performance
of the Pass Through Certificates by the Pass Through Trustee are
not or were not, on the date of execution thereof, in violation of
the charter or by-laws of First Security or of any law,
governmental rule, or regulation of the State of Utah or the
United States of America governing the banking or trust powers of
First Security or, to our knowledge, of any indenture, mortgage,
bank credit agreement, note or bond purchase agreement, long-term
lease, license or other agreement or instrument to which it is a
party or by which it is bound or, to our knowledge, of any
judgment or order of the State of Utah or the United States of
America relating to the banking or trust powers of First Security.
7. There are no actions, suits, investigations or
proceedings pending or, to our knowledge, threatened against or
affecting First Security, the Pass Through Trustee or the
Subordination Agent or any of its properties in any court or
before any administrative agency or arbitrator, which, if
adversely determined, would materially adversely affect the
ability of First Security, the Pass Through Trustee or the
Subordination Agent, as the case may be, to perform its
obligations under any of the Pass Through Trustee Documents or the
Subordination Agent Documents, as the case may be, and there are
no pending or, to our knowledge, threatened actions or proceedings
before any court, administrative agency or tribunal involving
First Security, the Pass Through Trustee or the Subordination
Agent in connection with the transactions contemplated by any of
the Pass Through Trustee Documents or the Subordination Agent
Documents, as the case may be.
8. Neither the trusts created by the Pass Through Trust
Agreement and the Series Supplements nor the Pass Through Trustee,
in its individual or trust capacity, as the case may be, nor their
respective Affiliates, successors or assigns, will be subject to
any tax (including, without limitation, net or gross income,
tangible or intangible property, net worth, capital, franchise or
doing business tax), fee or other governmental charge under the
laws of the State of Utah or any political subdivision thereof
(other than taxes imposed on the fees received by State Street
Bank and Trust Company for acting as Pass Through Trustee under
the Series Supplements). Certificate holders who are not
residents of or otherwise subject to tax in Utah will not be
subject to any tax (including, without limitation, net or gross
income, tangible or intangible property, net worth, capital,
franchise or doing business tax), fee or other governmental charge
under the laws of the State of Utah or any political subdivision
thereof as a result of purchasing, owning (including receiving
payments with respect to) or selling a Pass Through Certificate.
There are no applicable taxes under the laws of the State of Utah
or any political subdivision thereof upon or with respect to (a)
the construction, mortgaging, financing, refinancing, purchase,
acquisition, acceptance, rejection, delivery, nondelivery,
transport, location, ownership, insurance, control, assembly,
possession, repossession, operation, use, condition, maintenance,
repair, sale, return, abandonment, replacement, preparation,
installation, storage, redelivery, manufacture, leasing,
subleasing, modification, rebuilding, importation, transfer of
title, transfer of registration, exportation or other application
or disposition of the Aircraft or any interest in any thereof, (b)
payments of Rent or other receipts, income or earnings arising
therefrom or received with respect to the Aircraft or any interest
in any thereof or payable pursuant to the Lease, (c) any amount
paid or payable pursuant to any Operative Agreements, (d) the
Aircraft or any interest therein or the applicability of the Lease
to the Aircraft or any interest in any thereof, (e) any or all of
the Operative Agreements, any or all of the Pass Through
Certificates or any interest in any or all thereof or the
offering, registration, reregistration, issuance, acquisition,
modification, assumption, reissuance, refinancing or refunding of
any or all thereof, and any other documents contemplated thereby
and amendments or supplements hereto and thereto, (f) the payment
of the principal of, or interest or premium on, or other amounts
payable with respect to, any or all of the Pass Through
Certificates, whether as originally issued or pursuant to any
refinancing, refunding, assumption, modification or reissuance, or
any other obligation evidencing any loan in replacement of the
loan evidenced by any or all of the Pass Through Certificates, or
(g) otherwise with respect to or in connection with the
transactions contemplated by the Pass Through Trust Agreement, the
Series Supplements, the Pass Through Certificates and the
Operative Agreements, which would not have been imposed if the
Pass Through Trustee had not had its principal place of business
in, had not performed (either in its individual capacity or as
Pass Through Trustee) any or all of its administrative duties
under the Pass Through Trust Agreement, the Series Supplements,
the Pass Through Certificates and the Operative Agreements in, and
had not engaged in any activities unrelated to the transactions
contemplated by the Pass Through Trust Agreement, the Series
Supplements, the Pass Through Certificates and the Operative
Agreements in, the State of Utah.
9. Each of the Certificates to be delivered to and registered
in the name of the Subordination Agent on the date hereof pursuant to
the Participation Agreement and the Intercreditor Agreement will be
held by the Subordination Agent in trust for the Pass Through Trustee
under the applicable Pass Through Trust Agreement.
Very truly yours,
Ray, Quinney & Nebeker
SCHEDULE A
Lessee
Federal Express Corporation
2007 Corporate Avenue
Memphis, Tennessee 38132
Owner Trustee
State Street Bank and Trust Company
of Connecticut, National Association
Two International Place
4th Floor
Boston, Massachusetts 02110
Indenture Trustee, Pass Through Trustee & Subordination Agent
First Security Bank, National Association
79 South Main Street
Salt Lake City, Utah 84111
Original Indenture Trustee
State Street Bank and Trust Company
Two International Place
4th Floor
Boston, Massachusetts 02110
Original Agent and Loan Participant
Morgan Guaranty Trust Company of New York
60 Wall Street
22nd Floor
New York, New York 10260
Owner Participants
Comerica Leasing Corporation
29201 Telegraph Road
2nd Floor
Southfield, Michigan 48034
Norwest Bank Minnesota, National Association
733 Marquette Avenue
Suite 300
Minneapolis, Minnesota 55479-2048
Underwriters
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
First Chicago Capital Markets, Inc.
Corporate Securities
One First National Plaza
Chicago, Illinois 60670
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
J.P. Morgan & Co.
60 Wall Street
New York, New York 10260
Liquidity Provider
Kredietbank N.V., New York Branch
125 West 55th Street
New York, New York 10019
EXHIBIT A(7)(a)
[Letterhead of Kredietbank N.V.]
[Certificate Closing Date]
To Each of the Parties named on Schedule A Hereto
Re: Federal Express Corporation 1997-1
Enhanced Pass Through Certificates
Ladies and Gentlemen:
I am the manager of the Legal Department of Kredietbank N.V.
("Kredietbank") and have advised Kredietbank and its New York Branch (the
"Branch") in connection with (i) the Irrevocable Revolving Credit Agreement
Class A Certificates, dated as of May 1, 1997 (the "Class A Liquidity
Agreement"), between the Branch and First Security Bank, National
Association, a national banking association, as Subordination Agent under
the Intercreditor Agreement, defined below, and as agent and trustee for
the Federal Express Corporation Pass Through Trust 1997-1-A, (ii) the
Irrevocable Revolving Credit Agreement Class B Certificates, dated as of
May 1, 1997 (the "Class B Liquidity Agreement"), between the Branch and
First Security Bank, National Association, a national banking association,
as Subordination Agent under the Intercreditor Agreement, defined below,
and as agent and trustee for the Federal Express Corporation Pass Through
Trust 1997-1-B (the "Intercreditor Agreement" and, together with the
Liquidity Agreements, the "Liquidity Documents"), and (iii) the
Intercreditor Agreement, dated as of May 1, 1997 (the "Intercreditor
Agreement"), among the Branch, First Security Bank, National Association,
as Pass Through Trustee and as Subordination Agent (the Liquidity
Agreements and the Intercreditor Agreement are hereinafter collectively the
"Liquidity Documents").
Capitalized terms herein which are undefined have the meanings
assigned to them in the Liquidity Documents.
I am rendering this opinion in my capacity as manager of the
Legal Department and without being personally liable to any extent for the
opinions expressed herein.
In connection with the opinions hereinafter given, I have
examined a copy of each of the Liquidity Documents and such other
certificates, documents, agreements and instruments as I have deemed
necessary as a basis for the opinions expressed below.
In such examination, I have assumed the genuineness of all
signatures, the authenticity of all agreements, certificates, instruments and
documents submitted to me as originals, and the conformity to the originals of
all agreements, certificates, instruments and documents submitted to me as
copies. As to questions of fact material to the opinions expressed below, I
have, when relevant facts were not independently established by me, examined
and relied upon representations of officers of Kredietbank.
Based upon the foregoing examination and assumptions, and
subject to the qualifications set forth below, I am of the opinion that:
1. Kredietbank is duly organized and validly existing as a
Belgian public law banking institution under the law of Belgium and
has full power and authority (corporate and otherwise) to execute,
deliver and perform the Liquidity Documents.
2. [Tod Angus] or [Robert Snauffer], acting together with
[Jean Glasgow], if acting for and on behalf of the Branch, are
duly authorized by Kredietbank to execute and deliver the
Liquidity Documents for and on behalf of the Branch. Assuming
each of the Liquidity Documents has been duly executed and
delivered for and on behalf of the Branch by such persons, no
further authorization by or any corporate action of Kredietbank is
required in connection with the execution, delivery and
performance thereof.
3. The governing-law clause, subjecting the Liquidity
Documents to New York law, is valid under Belgian law.
(i) Under Belgian law, New York law will be applied to an
agreement, such as the Liquidity Documents, which under Belgian
law has been validly subjected to New York laws.
(ii) (a) None of the terms of the Liquidity Documents
is irreconcilable with important principles of Belgian law,
and (b) there are no mandatory provisions of Belgian law
which must be applied to the transactions covered by the
Liquidity Documents.
(iii) Each of the Liquidity Documents constitutes the
legal, valid and binding obligation of Kredietbank,
enforceable against Kredietbank in accordance with its
terms, the rules of civil procedures of Belgium and the
applicable provisions of the chosen law of New York.
4. No authorization, consent, approval or other action by,
and no notice to or filing with, any governmental, administrative
or other authority or court of Belgium is required for the
execution or delivery of the Liquidity Documents by Kredietbank
through the Branch or for the performance by Kredietbank or by the
Branch of the Liquidity Documents.
5. The execution, delivery and performance of the Liquidity
Documents by Kredietbank or the Branch will not result in any
violation by Kredietbank or by the Branch of any law of Belgium.
6. The contractual obligations incurred by virtue of the
execution and delivery of the Liquidity Documents for and on behalf
of the Branch are the obligations of Kredietbank, and Kredietbank has
no defenses against the performance of such obligations which are
based on the fact that Kredietbank had acted through the Branch in
executing and delivering the Liquidity Documents.
7. If a final and conclusive judgment of the Supreme Court of
the State of New York, New York County, or of the Untied States
District Court for the Southern District of New York for a definite
sum for the recovery of amounts due and unpaid under the Liquidity
Documents were to be rendered against Kredietbank, a reexamination or
relitigation on the merits of the subject matter thereof in
accordance with Article 570 of the Belgian Judicial Code would be
necessary in order to obtain recognition and/or enforcement of such
judgment in Belgium.
8. The obligations of Kredietbank under the Liquidity
Documents rank at least equal in priority of payment and in all
other respects with its obligations to pay any other unsecured and
unsubordinated obligations of Kredietbank for borrowed money,
including deposit liabilities, that are not expressly preferred by
law.
The foregoing opinions are subject to the following
qualifications:
(i) The opinion in paragraph (3) with respect to
enforceability is subject to the effect of any bankruptcy,
insolvency, reorganization, moratorium, liquidation or similar
laws affecting creditors' rights generally, applicable to
Kredietbank and to any law or general principle of law from
time to time in effect in Belgium that could be considered by
the Belgian Courts as a provision of public policy.
(ii) In giving the opinions in paragraphs (3)(iii), (6) and
(8), I have assumed, with your consent, that each of the
Liquidity Documents is legal, valid and binding under New York
law, all as set forth more fully in the opinion dated of even
date herewith of Milbank, Tweed, Hadley & McCloy issued in
connection with the Liquidity Documents.
(iii) No opinion is expressed with respect to the law of any
jurisdiction other than the law of Belgium.
This opinion is being furnished to you solely for your benefit
in connection with the transactions described above and may not be used,
circulated, quoted or otherwise referred to for any other purpose without my
express written consent.
Very truly yours,
SCHEDULE A
Lessee
Federal Express Corporation
2007 Corporate Avenue
Memphis, Tennessee 38132
Indenture Trustee, Pass Through Trustee & Subordination Agent
First Security Bank, National Association
79 South Main Street
Salt Lake City, Utah 84111
Underwriters
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
First Chicago Capital Markets, Inc.
Corporate Securities
One First National Plaza
Chicago, Illinois 60670
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
J.P. Morgan & Co.
60 Wall Street
New York, New York 10260
EXHIBIT A(7)(b)
[Letterhead of Milbank, Tweed, Hadley & McCloy]
[Certificate Closing Date]
To Each of the Parties named on Schedule A Hereto
Re: Federal Express Corporation 1997-1
Enhanced Pass Through Certificates
Ladies and Gentlemen:
We have acted as special New York counsel to Kredietbank
N.V., New York Branch (herein called the "Liquidity Provider") in
connection with the transactions contemplated by (i) the Irrevocable
Revolving Credit Agreement Class A Certificates, dated as of May 1, 1997
(the "Class A Liquidity Agreement"), between the Liquidity Provider and
First Security Bank, National Association, as Subordination Agent under the
Intercreditor Agreement, as defined below, as agent and trustee for the
Federal Express Corporation 1997-1-A Pass Through Trust, (ii) the
Irrevocable Revolving Credit Agreement Class B Certificates, dated as of
May 1, 1997 (the "Class B Liquidity Agreement" and, together with the Class
A Liquidity Agreement, the "Liquidity Agreements"), between the Liquidity
Provider and First Security Bank, National Association, as Subordination
Agent under the Intercreditor Agreement, as defined below, as agent and
trustee for the Federal Express Corporation 1997-1-B Pass Through Trust,
and (iii) the Intercreditor Agreement, dated as of May 1, 1997 (the
"Intercreditor Agreement" and, together with the Liquidity Agreements, the
"Liquidity Documents"), among the Liquidity Provider and First Security
Bank, National Association, as Pass Through Trustee and as Subordination
Agent. Capitalized terms used herein but not otherwise defined herein
shall have the meanings provided in the Liquidity Documents.
In rendering the opinion expressed below, we have examined
the Liquidity Documents, the opinion dated the date hereof of Gohan Tyteca,
Esq., manager of the Legal Department of Kredietbank N.V., and such other
documents as we have deemed necessary.
In our examination, we have assumed the authenticity of all
documents submitted to us as originals and the conformity with authentic
original documents of all documents submitted to us as copies. When
relevant facts were not independently established, we have relied upon
representations made in or pursuant to the Liquidity Documents.
In rendering the opinion expressed below, we have assumed,
with respect to each Liquidity Document, that:
(i) it has been duly authorized by, has been duly executed and
delivered by, and (except to the extent set forth in the
opinion below as to the Liquidity Provider) constitutes
legal, valid, binding and enforceable obligations of all of
the parties thereto;
(ii) all signatories thereto have been duly authorized; and
(iii) all of the parties thereto are duly organized and validly
existing and have the power and authority (corporate,
partnership, trust or other) to execute, deliver and perform
thereunder.
Based upon and subject to the foregoing and subject also to
the comments and qualifications set forth below, and having considered such
questions of law as we have deemed necessary as a basis for the opinion
expressed below, we are of the opinion that each Liquidity Document
constitutes the legal, valid and binding obligation of the Liquidity
Provider, enforceable against the Liquidity Provider in accordance with its
terms, except as may be limited by bankruptcy, insolvency, reorganization,
moratorium, fraudulent conveyance or transfer or other similar laws
relating to or affecting the rights of creditors generally and except as
the enforceability of such Liquidity Document is subject to the application
of general principles of equity (regardless of whether considered in a
proceeding in equity or at law), including, without limitation, (a) the
possible unavailability of specific performance, injunctive relief or any
other equitable remedy and (b) concepts of materiality, reasonableness,
good faith and fair dealing.
The foregoing opinion is subject to the following comments
and qualifications:
(A) The enforceability of provisions in the Liquidity
Documents to the effect that terms may not be waived or modified
except in writing may be limited under certain circumstances.
(B) We express no opinion as to (i) the effect of the laws
of any jurisdiction in which the Liquidity Provider is located
(other than New York) that limit the interest, fees or other
charges the Liquidity Provider may impose for the loan or use of
money or other credit, (ii) Section 7.11(a)(i) of each Liquidity
Agreement and Section 10.11(a)(i) of the Intercreditor Agreement,
insofar as such Sections relate to the subject matter jurisdiction
of a Federal court sitting in New York, New York to adjudicate any
controversy related to the Liquidity Documents, (iii) the waiver
of inconvenient forum set forth in Section 7.11(a)(ii) of each
Liquidity Agreement and Section 10.11(a)(ii) of the Intercreditor
Agreement with respect to proceedings in a Federal court sitting
in New York, New York and a State court of the State of New York
and (iv) the waiver of immunity set forth in Section 10.11(c) of
the Intercreditor Agreement with respect to proceedings in a
Federal court sitting in New York, New York and a State court of
the State of New York.
The foregoing opinion is limited to matters involving the
Federal laws of the United States of America and the law of the State of
New York, and we do not express any opinion as to the laws of any other
jurisdiction. In particular, we do not express any opinion as to the laws
of Belgium and, to the extent such laws may be relevant to the opinion
expressed herein, we have, with your permission, relied upon the
aforementioned opinion of Gohan Tyteca, Esq., manager of the Legal
Department of Kredietbank N.V., without independently considering the
matters covered thereby, and our opinion is subject to all limitations,
exceptions and qualifications contained therein as if set forth herein in
full.
At the request of the Liquidity Provider, this opinion
letter is provided to you by us in our capacity as special New York counsel
to the Liquidity Provider, and this opinion letter may not be relied upon
by any Person for any purpose other than in connection with the
transactions contemplated by the Liquidity Documents without, in each
instance, our prior written consent.
Very truly yours,
SCHEDULE A
Lessee
Federal Express Corporation
2007 Corporate Avenue
Memphis, Tennessee 38132
Indenture Trustee, Pass Through Trustee & Subordination Agent
First Security Bank, National Association
79 South Main Street
Salt Lake City, Utah 84111
Underwriters
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
First Chicago Capital Markets, Inc.
Corporate Securities
One First National Plaza
Chicago, Illinois 60670
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
J.P. Morgan & Co.
60 Wall Street
New York, New York 10260
Liquidity Provider
Kredietbank N.V., New York Branch
125 West 55th Street
New York, New York 10019
==============================================================================
TRUST AGREEMENT
(FEDERAL EXPRESS CORPORATION TRUST NO. N670FE)
Dated as of May 1, 1997
between
PMCC LEASING CORPORATION,
Trustor
and
STATE STREET BANK AND TRUST COMPANY OF CONNECTICUT,
NATIONAL ASSOCIATION,
Owner Trustee
COVERING ONE AIRBUS A300F4-605R AIRCRAFT
SERIAL NO. 777, REGISTRATION NO. N670FE
==============================================================================
Page
TABLE OF CONTENTS
PARTIES.................................................................... 1
RECITALS................................................................... 1
ARTICLE 1
THE LESSOR'S ESTATE
Section 1.01. Authorization and Direction to Owner Trustee............. 1
Section 1.02. Declaration of Trust..................................... 2
Section 1.03. Conditions Precedent..................................... 2
ARTICLE 2
DISTRIBUTIONS
Section 2.01. Predelivery Funding; Rent, Etc........................... 2
Section 2.02. Excepted Payments........................................ 3
Section 2.03. Distributions after Release of Lien of Indenture......... 3
Section 2.04. Manner of Making Distributions........................... 4
ARTICLE 3
THE OWNER TRUSTEE
Section 3.01. Acceptance of Trust and Duties........................... 5
Section 3.02. Limitation on Authority of Owner Trustee................. 5
Section 3.03. Notice of Default........................................ 5
Section 3.04. Action Upon Instructions................................. 6
Section 3.05. Certain Duties and Responsibilities of Owner Trustee..... 6
Section 3.06. Certain Rights of Owner Trustee.......................... 7
Section 3.07. No Representations or Warranties as to Certain Matters... 9
Section 3.08. Status of Moneys Received................................ 10
Section 3.09. Self-Dealing............................................. 10
Section 3.10. Definition of a Responsible Officer...................... 10
Section 3.11. Resignation or Removal of Owner Trustee.................. 10
Section 3.12. Estate and Rights of Successor Owner Trustee............. 11
Section 3.13. Merger or Consolidation of SSB........................... 11
Section 3.14. Co-Trustees.............................................. 12
Section 3.15. Interpretation of Agreements............................. 13
Section 3.16. Not Acting in Individual Capacity........................ 13
Section 3.17. Books and Records; Tax Returns........................... 13
ARTICLE 4
TERMINATION OF TRUST
Section 4.01. Termination.............................................. 14
Section 4.02. Termination at Option of the Trustor..................... 15
Section 4.03. Distribution of Lessor's Estate upon Termination......... 15
ARTICLE 5
[RESERVED]
ARTICLE 6
MISCELLANEOUS
Section 6.01. Indemnification.......................................... 16
Section 6.02. Limitations on the Trustor's Liability................... 17
Section 6.03. Fees; Compensation....................................... 17
Section 6.04. Supplements and Amendments............................... 17
Section 6.05. Nature of Title of Trustor............................... 17
Section 6.06. Power of Owner Trustee to Convey......................... 17
Section 6.07. Notices.................................................. 18
Section 6.08. Situs of Trust; Applicable Law; Severability............. 19
Section 6.09. Successors and Assigns................................... 19
Section 6.10. Headings and Table of Contents........................... 19
Section 6.11. Identification of Trust.................................. 19
Section 6.12. Counterparts............................................. 19
Section 6.13. Trustor Interest......................................... 19
Section 6.14. Performance by the Trustor............................... 19
Schedule I Definitions
TRUST AGREEMENT
(FEDERAL EXPRESS CORPORATION TRUST NO. N670FE)
TRUST AGREEMENT (FEDERAL EXPRESS CORPORATION TRUST NO. N670FE) dated
as of May 1, 1997 (this "Agreement") between STATE STREET BANK AND TRUST
COMPANY OF CONNECTICUT, NATIONAL ASSOCIATION, a national banking association
(in its individual capacity, "SSB", and not in its individual capacity but
solely as trustee hereunder, the "Owner Trustee"), and PMCC LEASING
CORPORATION, a Delaware corporation (together with its successors and permitted
assigns, the "Trustor"). The capitalized terms used herein, unless otherwise
herein defined or the context hereof shall otherwise require, shall have the
respective meanings set forth in Schedule I attached hereto.
W I T N E S S E T H :
-------------------
WHEREAS, the Trustor desires to create a trust for the purpose of
issuing Certificates, the proceeds of which issuance shall initially be held
by the Indenture Trustee on behalf of the Owner Trustee in the Collateral
Account and released, subject to the proviso to Section 3.02(a) of the
Participation Agreement, on the Delivery Date in order to finance a portion of
the Purchase Price of the Aircraft, to acquire the Aircraft from AVSA on the
Delivery Date, to lease the Aircraft to the Lessee on the Delivery Date and to
receive the benefits provided for herein.
WHEREAS, SSB is willing to accept the trust as herein provided and to
perform its obligations hereunder in its individual capacity or as the Owner
Trustee as the case may be.
NOW THEREFORE, in consideration of the mutual covenants and agreements
contained herein, SSB and the Trustor agree as follows:
ARTICLE 1
THE LESSOR'S ESTATE
Section 1.01. Authorization and Direction to Owner Trustee. The
Trustor hereby authorizes and directs (or has authorized and directed) the
Owner Trustee, not individually but solely as the Owner Trustee hereunder:
(a) to execute and deliver as and when specified in Sections 4.01
and 4.02 of the Participation Agreement and each of the other Operative
Agreements to which the Owner Trustee is a party and to enter into and
perform the transactions contemplated thereby including, without
limitation, accepting title to, and delivery of, the Aircraft from AVSA on
the Delivery Date, and taking all appropriate action to cause the Airframe
to be registered with the Federal Aviation Administration in the name of
the Owner Trustee;
(b) to execute and deliver from time to time the Certificates in the
manner and subject to the terms and conditions provided in the
Participation Agreement and the Indenture;
(c) to execute and deliver each other document referred to in the
Operative Agreements to which the Owner Trustee is a party or which the
Owner Trustee is required to deliver pursuant to the Operative Agreements;
(d) subject to the terms of this Agreement, to perform the
obligations and duties and, upon instruction of the Trustor, exercise the
rights of the Owner Trustee under the Operative Agreements; and
(e) to execute and deliver all such other instruments, documents or
certificates and take all such other actions in accordance with the
directions of the Trustor, as the Trustor may deem necessary or advisable
in connection with the Certificate Closing Date and the Delivery Date and
the transactions contemplated hereby, the taking of any such action by the
Owner Trustee in the presence of the Trustor or its counsel to evidence,
conclusively, the direction of the Trustor.
Section 1.02. Declaration of Trust. SSB hereby declares and agrees,
in its individual capacity, that it will, and in its capacity as the Owner
Trustee does, hold the Lessor's Estate upon the trust herein set forth for the
use and benefit of the Trustor, subject, however, to the provisions of, and
the Lien created by, the Indenture. This Agreement is not intended by the
Trustor to create, and the trust created hereby is not intended by the Trustor
and the other parties interested herein to constitute a business trust for
purposes of the Bankruptcy Code.
Section 1.03. Conditions Precedent. The right and obligation of the
Owner Trustee to take the actions required by Section 1.01 hereof shall be
subject to the condition that the terms and conditions of Section 4.01 or
4.02, as the case may be, of the Participation Agreement shall have been
complied with in a manner satisfactory to the Owner Trustee and the Trustor.
ARTICLE 2
DISTRIBUTIONS
Section 2.01. Predelivery Funding; Rent, Etc. (a) The Trustor and
the Owner Trustee acknowledge that the proceeds from the sale of the
Certificates to be effected on the Certificate Closing Date are to be held by
the Indenture Trustee in the Collateral Account in the manner specified in the
Indenture for application as provided therein and in Section 3.02 of the
Participation Agreement.
(b) The Trustor and the Owner Trustee acknowledge that the
Lease will be security for the Certificates pursuant to the Indenture which
provides that all moneys payable by the Lessee to the Owner Trustee under the
Lease (other than Excepted Payments) are to be first paid to the Indenture
Trustee while the Lien of the Indenture is in effect, for distribution in
accordance with the terms of Article V of the Indenture. Except for amounts
received from the Indenture Trustee, which shall be applicable only in
accordance with clause (iii) below, the Owner Trustee shall promptly apply
each payment of the Rent (other than Excepted Payments), Stipulated Loss
Value, Termination Value, and any proceeds from the sale, requisition or
disposition of the Aircraft received by it as follows:
(i) prior to the release of the Lien of the Indenture, each such
payment shall be payable directly to the Indenture Trustee (and if any of
the same are received by the Owner Trustee shall, upon receipt, be paid
over to the Indenture Trustee without deduction, set off or adjustment of
any kind) for distribution in accordance with the provisions of Article V
of the Indenture; provided, that any payments received by the Owner Trustee
from (x) the Lessee with respect to SSB's or the Owner Trustee's fees and
disbursements under this Agreement, or (y) the Trustor pursuant to Section
6.01 hereof shall not be paid over to the Indenture Trustee but shall be
retained by the Owner Trustee and applied toward the purpose for which such
payments were made;
(ii) after the release of the Lien of the Indenture, any amount
remaining after application in full in accordance with paragraph (b)(i) of
this Section 2.01 and which represents payments for which provision as to
the application thereof is made in any other Operative Agreement shall be
applied promptly to the purpose for which such payment shall have been made
in accordance with the terms of such Operative Agreement; and
(iii) after application in accordance with paragraphs (i) and (ii) of
this Section 2.01(b), or to the extent received from the Indenture Trustee
under the terms of the Indenture, the balance, if any, remaining shall be
paid to the Trustor.
Section 2.02. Excepted Payments. Notwithstanding any other provision
contained herein, all Excepted Payments at any time received by the Owner
Trustee shall be distributed promptly to the applicable Person entitled
thereto, and such payment shall not be deemed under any circumstances to be
part of the Lessor's Estate.
Section 2.03. Distributions after Release of Lien of Indenture.
Except as otherwise provided in Sections 2.01 and 2.02 hereof:
(a) all payments received and amounts realized by the Owner
Trustee under the Lease or otherwise with respect to the Aircraft or
any part thereof (including, without limitation, all payments
received pursuant to Section 17.01 of the Lease and amounts realized
upon the sale or lease of the Aircraft or any part thereof after the
termination of the Lease with respect thereto), to the extent
received or realized at any time after the Lien of the Indenture
shall have been released pursuant to the terms of the Indenture, and
(b) moneys not included in paragraph (a) of this Section 2.03
remaining as part of the Lessor's Estate after the Lien of the
Indenture has been released,
shall, to the extent required, be retained by the Owner Trustee as
reimbursement for all expenses hereunder or under the Lease not theretofore
reimbursed under this Agreement, the Lease or otherwise and to which the Owner
Trustee is entitled to be reimbursed pursuant to the provisions thereof, and
any balance remaining thereafter shall be distributed to the Trustor.
Section 2.04. Manner of Making Distributions. The Owner Trustee
shall make distributions or cause distributions to be made to (i) the Trustor
pursuant to this Article 2 by transferring by wire transfer in immediately
available funds the amount to be distributed to the account set forth in the
Participation Agreement or to such other account or accounts of the Trustor as
it may designate from time to time by written notice to the Owner Trustee (and
the Owner Trustee shall use best efforts to cause such funds to be transferred
by wire transfer on the same day as received, but in any case not later than
the next succeeding Business Day), and (ii) the Indenture Trustee pursuant to
this Article 2 by paying the amount to be distributed to the Indenture Trustee
in the manner specified in the Indenture; provided, that the Owner Trustee
shall invest overnight, for the benefit of the Trustor, in investments that
would be permitted by Article 23 of the Lease (but only to the extent funds
are received on or prior to 2:00 P.M. (Eastern Time) and such investments are
available and, if such investments are not available to the Owner Trustee in
investments which, after consultation with the Trustor, the Trustor shall
direct) all funds not transferred by wire transfer on the same day as they
were received. Notwithstanding the foregoing but subject always to the
provisions of, and the Lien created by, the Indenture, the Owner Trustee will,
if so requested by the Trustor by written notice, pay in immediately available
funds any and all amounts payable by the Owner Trustee hereunder to the
Trustor as directed by the Trustor.
ARTICLE 3
THE OWNER TRUSTEE
Section 3.01. Acceptance of Trust and Duties. SSB accepts the trust
hereby created and, subject to Section 1.03 hereof, in its capacity as the
Owner Trustee agrees to perform the same, including without limitation,
subject to Section 1.03 hereof, the actions specified in Section 1.01 hereof
as herein provided. The Owner Trustee agrees to disburse all monies that it
receives under the Operative Agreements in accordance with the terms hereof.
The Owner Trustee shall not be answerable or accountable in its individual
capacity except as a result of or arising from (a) the Owner Trustee's willful
misconduct or gross negligence (in its individual capacity or as trustee), (b)
any breach by the Owner Trustee of its representations, warranties and
covenants given in its individual capacity in this Agreement, Article 5 of the
Lease, Sections 7.02(a) and (b) and 7.04 of the Participation Agreement or its
representations, warranties and covenants given in its individual capacity in
Sections 3.05 and 3.08 of the Indenture, (c) the failure to use ordinary care
in receiving, handling and disbursing funds, (d) Lessor's Liens attributable
to it in its individual capacity, and (e) taxes, fees, or other charges on,
based on, or measured by, any fees, commissions or compensation received by
SSB or the Owner Trustee in connection with the transactions contemplated by
the Lease, the Indenture and the Operative Agreements including this Agreement.
Section 3.02. Limitation on Authority of Owner Trustee. The Owner
Trustee shall have no power, right, duty or authority to, and agrees that it
will not, manage, control, possess, use, sell, lease, dispose of or otherwise
deal with the Aircraft, Airframe, Engines, any Part thereof or any other
property at any time constituting a part of the Lessor's Estate, or otherwise
to take or refrain from taking any action under or in connection with the
Operative Agreements, except (i) to execute and deliver the Operative
Agreements to which it is a party, (ii) to exercise and carry out or cause to
be exercised or carried out the rights, duties and obligations of the Owner
Trustee hereunder and under the other Operative Agreements, or (iii) as
expressly provided in written instructions from the Trustor given pursuant to
Section 3.03 or 3.04 hereof; provided, that nothing in this Section 3.02 shall
limit in any manner the obligations of the Owner Trustee hereunder.
Section 3.03. Notice of Default. In the event that a Responsible
Officer in the Corporate Trust Department of the Owner Trustee shall have
actual knowledge of a Default or an Event of Default, or an Indenture Default
or an Indenture Event of Default, the Owner Trustee shall give or cause to be
given to the Trustor and the Indenture Trustee prompt telephone or facsimile
notice, followed by prompt confirmation thereof by certified mail, postage
prepaid (in any event within two Business Days of the discovery thereof), in
accordance with Article 14 of the Participation Agreement, of such Default,
Event of Default, Indenture Default or Indenture Event of Default. Subject to
the terms of Section 3.06(e) hereof and the rights of the Indenture Trustee
under the Indenture, the Owner Trustee shall take such action with respect to
such Default, Event of Default, Indenture Default or Indenture Event of
Default as shall be specified in written instructions from the Trustor;
provided that the Owner Trustee shall have no duty to take any (and shall take
no) action whatsoever in the absence of written instructions from the Trustor.
For all purposes of this Agreement and the Lease, in the absence of actual
knowledge of a Responsible Officer of the Owner Trustee, the Owner Trustee
shall not be deemed to have knowledge of a Default, Event of Default,
Indenture Default or Indenture Event of Default unless notified in writing by
the Lessee, the Trustor, the Indenture Trustee or any Certificate Holder.
Section 3.04. Action Upon Instructions. Upon the written
instructions at any time and from time to time of the Trustor, the Owner
Trustee will take or refrain from taking such action, not inconsistent with
provisions of the Indenture, as may be specified in such instructions.
Section 3.05. Certain Duties and Responsibilities of Owner Trustee.
(a)(i) The Owner Trustee undertakes to perform such duties and only such
duties as are specifically set forth herein, and with the degree of care
specified in Section 3.01 hereof, and in accordance with written instructions
given by the Trustor hereunder, and no implied duties, covenants or
obligations shall be read into this Agreement, any such instructions or the
Operative Agreements against the Owner Trustee, and the Owner Trustee agrees
that it will not manage, control, possess, use, sell, lease, dispose of or
otherwise deal with the Aircraft or any part of the Lessor's Estate except as
required by the terms of the Operative Agreements, any such instructions and as
otherwise provided herein; and
(ii) in the absence of bad faith on its part, the Owner Trustee may
conclusively rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon certificates or opinions furnished to
the Owner Trustee and conforming to the requirements of this Agreement or
the other Operative Agreements, but in the case of any such certificates or
opinions which by any provisions hereof or thereof are specifically
required to be furnished to the Owner Trustee, the Owner Trustee shall be
under a duty to examine the same to determine whether or not they conform
to the requirements of this Trust Agreement or the Operative Agreements.
(b) No provision hereof shall require SSB in its individual capacity
to expend or risk its own funds or otherwise incur any financial liability in
the performance of any of its duties hereunder, 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 or liability
is not reasonably assured to it. Notwithstanding the foregoing, SSB agrees in
its individual capacity that it will, at its own cost and expense, promptly
take such action as may be necessary to discharge duly all Lessor's Liens
attributable to it in its individual capacity and will claim no indemnity
therefor hereunder, or under the Participation Agreement or any Operative
Agreement.
(c) Whether or not therein expressly so provided, every provision of
this Agreement relating to the conduct or affecting the liability of or
affording protection to the Owner Trustee shall be subject to the provisions
of this Section 3.05, except that in the event of a conflict between this
Section 3.05 and Section 3.01 hereof, Section 3.01 hereof shall be controlling.
(d) The Owner Trustee will furnish to the Trustor, promptly upon
receipt thereof, duplicates or copies of all reports, notices, requests,
demands, certificates, financial statements and any other instruments
furnished to the Owner Trustee hereunder or under the other Operative
Agreements (including those furnished to the Indenture Trustee pursuant to the
terms of the Indenture) and not otherwise furnished to the Trustor.
(e) Notwithstanding anything herein to the contrary, the Owner Trustee
shall not be authorized and shall have no power to "vary the investment" of the
Trustor within the meaning of Treasury Regulations Section 301.7701-4(c)(1),
it being understood that the Owner Trustee shall have the power and authority
to fulfill its obligations under Section 2.06 hereof and Article 23 of the
Lease.
Section 3.06. Certain Rights of Owner Trustee. Except as otherwise
provided in Section 3.05 hereof:
(a) in the absence of bad faith on its part, the Owner Trustee may
rely and shall be protected in acting or refraining from acting upon any
resolution, certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order or other paper or document reasonably
believed by it to be genuine and to have been signed or presented by the
proper party or parties;
(b) any request, direction or authorization by the Trustor or any
other party to any other Operative Agreement shall be sufficiently
evidenced by a request, direction or authorization in writing, delivered to
the Owner Trustee, and signed in the name of such party by any of the
Chairman of the Board, the President, any Vice President, the Treasurer or
Assistant Treasurer or the Secretary or Assistant Secretary or other duly
authorized officer of such party; and any resolution of the Board of
Directors or committee thereof of such party shall be sufficiently
evidenced by a copy of such resolution certified by the Secretary or an
Assistant Secretary of such party, to have been duly adopted and to be in
full force and effect on the date of such certification, and delivered to
the Owner Trustee;
(c) whenever in the administration of this Agreement the Owner Trustee
shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder or under any of the
other Operative Agreements, the Owner Trustee (unless other evidence be
herein or therein specifically prescribed), absent actual knowledge of a
Responsible Officer of the Owner Trustee to the contrary, may rely in good
faith upon a certificate in writing, delivered to the Owner Trustee and
signed by any of the Chairman of the Board, the President, any Vice
President, the Treasurer or Assistant Treasurer or the Secretary or
Assistant Secretary of the Lessee, the Trustor, or the Indenture Trustee
and notice of such need for such proof or establishment shall be delivered
to the Trustor, who may advise the Owner Trustee in respect of such matter
and the Owner Trustee shall act in conformity with such advice;
(d) the Owner Trustee may exercise its powers and perform its duties
by or through such attorneys, agents and servants as it shall appoint with
due care, and it shall be entitled to rely upon the advice of counsel
reasonably selected by it with due care and shall be protected by the
advice of such counsel in anything done or omitted to be done in accordance
with such advice;
(e) the Owner Trustee shall not be under any obligation to take any
action under this Agreement or under any of the other Operative Agreements
at the request or direction of the Trustor unless the Persons making such
request or direction shall have offered to the Owner Trustee reasonable
security or indemnity against the costs, expenses and liabilities which
might be incurred by it in compliance with such request or direction; nor
shall the Owner Trustee be required to take any action deemed to impose on
the Owner Trustee any obligation to take any action, if the Owner Trustee
shall have been advised by its counsel that such action is unlawful or is
contrary to the terms of this Agreement or the other Operative Agreements;
(f) the Owner Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order or
other paper or document unless a Responsible Officer of the Owner Trustee
has actual knowledge that the facts or matters stated therein are false or
inaccurate, but the Owner Trustee in its discretion may make such further
inquiry or investigation into such facts or matters as it may see fit, and,
if the Owner Trustee shall determine to make such further inquiry or
investigation, it shall be entitled, to the same extent permitted to the
Lessor under the Lease, to examine the books and records of the Lessee to
reasonably determine whether the Lessee is in compliance with the terms and
conditions of the Lease and to examine the Aircraft, Airframe, Engines or
any Part thereof personally or by agent or attorney; and
(g) without limiting the generality of Section 3.05 hereof, except as
otherwise provided in written instructions given to the Owner Trustee by the
Trustor or as otherwise provided in the Indenture or the Participation
Agreement, the Owner Trustee shall not have any duty (i) to see to any
recording or filing of the Lease or of this Agreement or any financing
statement or other notice or document relating thereto or contemplated
under the Operative Agreements or to see to the maintenance of any such
recording or filing (other than FAA reporting requirements contained in 14
C.F.R. Sections 47.45 and 47.51), (ii) to see to any insurance on the
Aircraft or any part thereof or to effect or maintain any such insurance,
whether or not the Lessee shall be in default with respect thereto, other
than to forward to the Trustor and (to the extent provided in the
Indenture) the Indenture Trustee copies of all certificates, reports and
other written information which it receives from the Lessee pursuant to the
Lease, (iii) to see to the payment or discharge of any tax, assessment or
other governmental charges or any Lien (except any Lessor's Lien
attributable to it in its individual capacity) owing with respect to, or
assessed or levied against any part of the Lessor's Estate, (iv) to confirm
or verify any financial statements or reports of the Lessee, or (v) to
inspect the Aircraft at any time or ascertain or inquire as to the
performance or observance of any of the Lessee's covenants under the Lease.
Section 3.07. No Representations or Warranties as to Certain
Matters. NEITHER THE OWNER TRUSTEE NOR SSB MAKES OR SHALL BE DEEMED TO HAVE
MADE (a) ANY REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, AS TO THE TITLE,
AIRWORTHINESS, VALUE, CONDITION, WORKMANSHIP, DESIGN, COMPLIANCE WITH
SPECIFICATIONS, CONSTRUCTION, OPERATION, MERCHANTABILITY OR FITNESS FOR USE
FOR A PARTICULAR PURPOSE OF THE AIRCRAFT, AS TO THE ABSENCE OF LATENT OR OTHER
DEFECTS, WHETHER OR NOT DISCOVERABLE, AS TO THE ABSENCE OF ANY INFRINGEMENT OF
ANY PATENT, TRADEMARK OR COPYRIGHT, AS TO THE ABSENCE OF OBLIGATIONS BASED ON
STRICT LIABILITY IN TORT, OR ANY OTHER REPRESENTATION OR WARRANTY WHATSOEVER,
EXPRESS OR IMPLIED, WITH RESPECT TO THE AIRCRAFT OR ANY PART THEREOF, except
that SSB represents and warrants that on the Delivery Date the Owner Trustee
shall have received whatever right, title and interests in, to and under the
Aircraft that were conveyed to it by AVSA and SSB represents, warrants and
covenants that at all times on and after the Delivery Date the Aircraft shall
be free of all Lessor's Liens attributable to it, and that the Owner Trustee
shall comply with the last sentence of Section 3.05(b) hereof, or (b) any
representation or warranty as to the validity, legality or enforceability of
this Agreement or any other Operative Agreement to which the Owner Trustee is
a party, or any other document or instrument, or as to the correctness of any
statement contained in any thereof, except to the extent that any such
representation, warranty or statement is expressly made herein or therein as a
representation or warranty by the Owner Trustee or SSB and except that SSB
hereby represents and warrants that this Agreement has been, and (assuming the
due authorization, execution and delivery of this Agreement by the Trustor)
the other Operative Agreements to which the Owner Trustee is a party have been
(or at the time of execution and delivery of any such instrument by the Owner
Trustee hereunder or pursuant to the terms of the Participation Agreement that
such an instrument will be) duly executed and delivered by one of its officers
who is or will be, as the case may be, duly authorized to execute and deliver
such instruments on behalf of the Owner Trustee and that this Agreement has
been duly authorized, executed and delivered by SSB and (assuming due
authorization, execution and delivery of this Trust Agreement by the Trustor)
constitutes the legal, valid and binding obligation of SSB enforceable against
it in accordance with its terms, except as such enforceability may be limited
by bankruptcy, insolvency, reorganization, moratorium or other similar laws
affecting the rights of creditors generally and by general principles of
equity.
Section 3.08. Status of Moneys Received. All moneys received by the
Owner Trustee under or pursuant to any provision of this Agreement or any
Operative Agreement shall constitute trust funds for the purpose for which
they were paid or are held, but need not be segregated in any manner from any
other moneys except to the extent required by law and may be deposited by the
Owner Trustee under such conditions as may be prescribed or permitted by law
for trust funds, or may be invested in direct obligations of the United States.
Section 3.09. Self-Dealing. The Owner Trustee in its individual
capacity, or any corporation in or with which the Owner Trustee may be
interested or affiliated, or any officer or director of any such corporation,
may have normal commercial relations, and otherwise deal, in the ordinary
course of business, with the Lessee or any other corporation having relations
with the Lessee to the full extent permitted by law.
Section 3.10. Definition of a Responsible Officer. For purposes of
this Trust Agreement only, "Responsible Officer" when used with respect to the
Owner Trustee means the Chairman or the Vice-Chairman of the Board of
Directors, the Chairman or Vice-Chairman of the Executive Committee of the
Board of Directors, the President, any Vice President (whether or not
designated by a number or a word or words added before or after the title
"Vice President"), the Secretary, any Assistant Secretary, or any other
officer in the Corporate Trust Department of SSB customarily performing
functions similar to those performed by any of the above designated officers.
Section 3.11. Resignation or Removal of Owner Trustee. The Owner
Trustee or any successor thereof (a) shall resign if required to do so
pursuant to Section 7.02(b) of the Participation Agreement and (b) may resign
at any time without cause by giving at least 60 days' prior written notice to
the Trustor and the Indenture Trustee, such resignation in each case to be
effective only upon the appointment of a successor trustee and the acceptance
of such appointment by such successor. In addition, the Trustor may at any
time remove the Owner Trustee without cause by an instrument in writing
delivered to the Owner Trustee and the Indenture Trustee, such removal to be
effective only upon the appointment by the Trustor of a successor Owner
Trustee and the acceptance of such appointment by such successor. Upon the
giving of notice of resignation or removal of the Owner Trustee, the Trustor
may appoint a successor Owner Trustee by an instrument signed by the Trustor.
If the Trustor shall not have so appointed a successor Owner Trustee within 30
days after such resignation or removal, the Owner Trustee, the Indenture
Trustee or the Trustor may apply to any court of competent jurisdiction to
appoint a successor Owner Trustee to act until such time, if any, as a
successor or successors shall have been appointed by the Trustor as above
provided. Any successor Owner Trustee so appointed by a court shall be
superseded by any successor Owner Trustee subsequently appointed by the
Trustor.
The appointment of any successor Owner Trustee shall be subject to the
conditions set forth in Section 11.01 of the Participation Agreement.
Section 3.12. Estate and Rights of Successor Owner Trustee. Any
successor Owner Trustee, however appointed, shall execute and deliver to the
predecessor Owner Trustee, with a copy to the Trustor and the Indenture
Trustee, an instrument accepting such appointment, in form and substance
acceptable to the predecessor Owner Trustee and the Trustor and thereupon each
successor Owner Trustee, without further act, shall become vested with all the
estates, properties, rights, powers, duties and trust of the predecessor Owner
Trustee in the trust hereunder with like effect as if originally named as an
Owner Trustee herein, but nevertheless upon the written request of such
successor Owner Trustee, such predecessor Owner Trustee shall execute and
deliver an instrument transferring to such successor Owner Trustee, upon the
trust herein expressed, all estates, properties, rights, powers, duties,
property or moneys then held by such predecessor Owner Trustee upon the trust
herein expressed. Upon any such transfer by a predecessor Owner Trustee, such
predecessor Owner Trustee shall provide the successor Owner Trustee and
Trustor an accounting of the Lessor's Estate and the trust hereunder.
Upon the appointment of any successor Owner Trustee hereunder, the
predecessor Owner Trustee will use its best efforts to cause registration of
the Aircraft included in the Lessor's Estate to be transferred upon the
records of the Aeronautics Authority or other registry where the Aircraft may
then be registered into the name of the successor Owner Trustee and shall
otherwise use its best efforts to comply, or assist the successor Owner
Trustee in complying, with the provisions of Section 11.01 of the
Participation Agreement.
Section 3.13. Merger or Consolidation of SSB. Any corporation into
which SSB in its individual capacity may be merged or with which it may be
consolidated, or any corporation resulting from any merger or consolidation to
which SSB shall be a party, or any corporation to which substantially all the
business of the Owner Trustee in its individual capacity may be transferred,
shall, subject to Section 11.01 of the Participation Agreement, be the Owner
Trustee under this Agreement without further act; provided, that such
corporation shall not also be the Indenture Trustee.
Section 3.14. Co-Trustees. At any time, if the Owner Trustee or the
Trustor shall deem it necessary or prudent or desirable in order to conform to
legal requirements of any jurisdiction in which any part of the Lessor's
Estate may at the time be located, the Owner Trustee by an instrument in
writing signed by it, shall appoint one or more Persons approved by the
Trustor to act as co-trustee, or co-trustees, jointly with the Owner Trustee,
or separate trustee or separate trustees (except insofar as local law makes it
necessary or prudent or desirable for any such co-trustee or separate trustee
to act alone), of all or any part of the Lessor's Estate, and to vest in such
Person or Persons, in such capacity, such title to the Lessor's Estate or any
part thereof, and such rights, powers, duties, trusts or obligations as the
Trustor may consider necessary or prudent or desirable. The Owner Trustee
shall not be liable for any act or omission of any co-trustee or separate
trustee appointed under this Section 3.14. No appointment of, or action by,
any co-trustee or separate trustee appointed under this Section 3.14 will
relieve the Owner Trustee of any of its obligations under any Operative
Agreement or otherwise affect any of the terms of the Indenture or adversely
affect the interests of the Indenture Trustee or the Certificate Holders in
the Trust Indenture Estate.
Any co-trustee or separate trustee may, at any time by an instrument
in writing, constitute the Owner Trustee its or his attorney-in-fact and agent
with full power and authority to do all acts and things and to exercise all
discretion on its or his behalf and in its or his name subject to the
conditions of this Agreement.
Every additional trustee hereunder shall be a Citizen of the United
States and, to the extent permitted by law, be appointed and act, and the
Owner Trustee and its successors shall act, subject to the following
provisions and conditions:
(A) all powers, duties, obligations and rights conferred upon the
Owner Trustee in respect of the custody, control and management of monies,
the Aircraft or documents authorized to be delivered hereunder or under the
Participation Agreement shall be exercised solely by the Owner Trustee;
(B) all other rights, powers, duties and obligations conferred or
imposed upon the Owner Trustee shall be conferred or imposed upon and
exercised or performed by the Owner Trustee and such additional trustee
jointly, except to the extent that under any law of any jurisdiction in
which any particular act or acts are to be performed (including the holding
of title to the Lessor's Estate) the Owner Trustee shall be incompetent or
unqualified to perform such act or acts, in which event such rights,
powers, duties and obligations shall be exercised and performed by such
additional trustee;
(C) no power given to, or which is provided hereby may be exercised
by, any such additional trustee, except jointly with, or with the consent
in writing of, the Owner Trustee;
(D) no trustee hereunder shall be personally liable by reason of any
act or omission of any other trustee hereunder except as otherwise provided
hereunder; and
(E) the Trustor, at any time, by an instrument in writing may remove
any such additional trustee.
Section 3.15. Interpretation of Agreements. In the event that the
Owner Trustee is unsure as to the application of any provision of this
Agreement or any other Operative Agreement or any other agreement relating to
the transactions contemplated by the Operative Agreements or such provision is
ambiguous as to its application, or is, or appears to be, in conflict with any
other applicable provision, or in the event that this Agreement or any other
Operative Agreement permits any determination by the Owner Trustee or is
silent or incomplete as to the course of action which the Owner Trustee is
required to take with respect to a particular set of facts, the Owner Trustee
shall request in writing sent in accordance with Article 14 of the
Participation Agreement instructions of the Trustor and, to the extent that
the Owner Trustee acts in good faith in accordance with any instructions
received from the Trustor, shall not be liable to any Person; provided, that
in the event that no response is made to the Owner Trustee by the Trustor
within 25 Business Days after such request, the Owner Trustee shall not be
liable to any Person for acts taken by the Owner Trustee in good faith in what
it deems to be the best interests of the Trustor or for any failure to act in
any situation described above in this Section 3.15. The provisions of this
Section 3.15 shall not be applicable to the Owner Trustee's obligations set
forth in the last sentence of Section 3.01 hereof.
Section 3.16. Not Acting in Individual Capacity. In carrying out
the trust hereby created, the Owner Trustee will act solely as trustee
hereunder and not in its individual capacity except as expressly provided
herein or in the other Operative Agreements to which it is a party; and all
Persons, other than the Trustor as provided in this Agreement, having any
claim against the Owner Trustee by reason of the transactions contemplated
hereby shall look only to the Lessor's Estate for payment or satisfaction
thereof, except to the extent provided in the last sentence of Section 3.01
hereof.
Section 3.17. Books and Records; Tax Returns. The Owner Trustee
shall be responsible for the keeping of all appropriate books and records
relating to its receipt and disbursement of all moneys under this Agreement or
any Operative Agreement and shall, upon the request of the Trustor or its duly
authorized representative, make available such books and records at its
principal trust office during normal business hours for inspection and
copying. The Owner Trustee agrees to sign and file all returns with respect
to Taxes that the Trustor prepares (or causes to be prepared) and directs the
Owner Trustee to sign and file. The Owner Trustee, upon request, will furnish
the Trustor with all such information as may be reasonably required or
necessary from the Owner Trustee in connection with the preparation of such tax
returns and in connection with any other filing or audit and related litigation
obligations. At the request of the Trustor, and at the expense of the Lessee,
the Owner Trustee shall file an application with the Internal Revenue Service
for a taxpayer identification number with respect to the trust created
hereunder and prepare or cause to be prepared and sign and/or file the Federal
fiduciary tax return with respect to Taxes due and payable by the Trust in
connection with the transactions contemplated hereby or by any other Operative
Agreement; provided, however, that the Owner Trustee shall send a completed
copy of each such return to the Trustor not more than 60 nor less than 30 days
prior to the due date of such return; provided that the Owner Trustee shall
have timely received all necessary information to complete and deliver to the
Trustor such return. The Trustor, upon request, will furnish the Owner Trustee
with all such information as may be required from the Trustor in connection
with the preparation of such income tax returns. The Owner Trustee shall keep
copies of all returns delivered to or filed by it.
ARTICLE 4
TERMINATION OF TRUST
Section 4.01. Termination. This Agreement and the trust created and
provided for hereby shall cease and be terminated in any one of the following
events, whichever shall first occur:
(a) The sale or other final disposition by the Owner Trustee of all
of its interest in all property constituting or included in the Lessor's
Estate and, if the Indenture shall then be in effect, the sale or other
disposition by the Indenture Trustee of all of its interest in all property
constituting or included in the Lessor's Estate, and the final disposition
by the Owner Trustee and, if the Indenture shall then be in effect, the
Indenture Trustee, of all moneys or other property or proceeds constituting
part of the Lessor's Estate in accordance with the terms hereof; or
(b) 21 years less one day from the death of the last survivor of the
descendants of Queen Victoria of England living on the date of this
Agreement; provided, however, that if the Trust shall be or become valid
under applicable law for a period subsequent to 21 years less one day from
the death of the last survivor of the descendants of Queen Victoria of
England living on the date of this Agreement or, without limiting the
generality of the foregoing, if legislation shall become effective
providing for the validity or permitting the effective grant of such trust
for a period, in gross, exceeding the period for which such trust is
hereinabove stated to extend and be valid, then such trust shall not
terminate as provided in the first part of this sentence but shall extend
to and continue in effect until, but only if such non-termination and
extension shall then be valid under applicable law, such time as the same
shall, under applicable law, cease to be valid.
Section 4.02. Termination at Option of the Trustor. Notwithstanding
Section 4.01 hereof, this Agreement and the trust created hereby shall
terminate and the Trust Estate shall be distributed to the Trustor, and this
Agreement shall be of no further force and effect, upon the election of the
Trustor by notice to the Owner Trustee, if such notice shall be accompanied by
the written agreement (in form and substance satisfactory to the Owner
Trustee) of the Trustor assuming all the obligations of the Owner Trustee
under or contemplated by the Operative Agreements or incurred by it as trustee
hereunder and releasing the Owner Trustee therefrom; provided, however, that
such notice may be given only after the time the Lien of the Indenture is
discharged under Section 14.01 of the Indenture and the Lease has terminated
unless the Trustor shall have received the prior written consent of the
Indenture Trustee to any such termination in which case such notice may be
given while the Lien of the Indenture is outstanding.
Section 4.03. Distribution of Lessor's Estate upon Termination.
Upon any termination of this trust pursuant to the provisions of Section 4.01
hereof, the Owner Trustee shall convey the Lessor's Estate (subject to all
obligations, if any, of the Owner Trustee then existing under the Operative
Agreements to which the Owner Trustee is a party) to such purchaser or
purchasers or the Trustor, as the case may be, and for such amount and on such
terms as shall be specified in written instructions from the Trustor delivered
to the Owner Trustee prior to the date of termination; provided, that (i) if
at the time of any termination the Lease remains in force and effect, then the
Lessor's Estate shall be sold as a unit (and not in parcels) and subject to
the Lease, and (ii) in the event such written instructions are not delivered
to the Owner Trustee on or before the date of termination, the Owner Trustee
shall transfer title to the Lessor's Estate to the Trustor. Upon making such
transfer or sale and accounting for all funds which have come into its hands,
the Owner Trustee shall be entitled to receipt of any sums due and owing to
the Owner Trustee for expenses incurred pursuant hereto as set forth in
Section 2.05 hereof.
ARTICLE 5
[RESERVED]
ARTICLE 6
MISCELLANEOUS
Section 6.01. Indemnification. The Trustor shall assume liability
for, and shall indemnify, protect, save and keep harmless SSB from and against
any and all liabilities, obligations, losses, damages, penalties, taxes,
claims, actions, proceedings, suits, costs (including reasonable attorneys'
fees), expenses and disbursements of any kind and nature whatsoever ("Trust
Claims") imposed on, incurred by or asserted against the Owner Trustee or SSB,
as the case may be (but only to the extent the Owner Trustee or SSB, as the
case may be, is not indemnified by the Lessee for such Trust Claims under any
Operative Document or is not indemnified by any other Person for such Trust
Claims, within a reasonable time after demand therefor), in any way relating
to or arising out of (X) the Trust Estate or any of the properties included
therein and (Y) the administration of the Trust Estate or the action of
inaction of the Owner Trustee hereunder or under the Operative Documents
including, but not limited to, claims under any Environmental Laws; provided,
however, that (a) the Trustor shall not be required to indemnify the Owner
Trustee or SSB in the case of (i) willful misconduct, negligence with respect
to handling of funds, gross negligence or bad faith of the Owner Trustee or
SSB, as the case may be, (ii) the Owner Trustee's or SSB's failure to use
ordinary care in the handling of monies constituting part of the Trust Estate,
(iii) Taxes of the Owner Trustee or SSB, as the case may be, that are based on
or measured by the compensation received by SSB for acting as Owner Trustee
hereunder, and (iv) items excluded from indemnification by the Lessee as, as
to the extent, provided in Section 8.01(b)(i-xii) and 9.01(b)(i-ix) of the
Participation Agreement, and (b) the Trustor shall not be required to
indemnify with respect to Trust Claims resulting from a breach of the
covenants by SSB in Article 3 hereof or Trust Claims resulting because any
representation or warranty of the Owner Trustee or SSB, as the case may be,
contained in any Operative Document proves to be untrue or inaccurate or the
failure by the Owner Trustee or SSB, as the case may be, to perform or observe
any agreements, covenants or conditions to be performed or observed by it in
any of the Operative Documents. None of the foregoing exclusions shall limit
the obligation of the Trustor to indemnify SSB (but SSB shall still be
required to seek indemnification from the Lessee before making a claim against
the Trustor hereunder unless such exclusion is otherwise limited under
Sections 8.01(b) and 9.01(b) of the Participation Agreement), (i) for actions
taken in accordance with written instructions received from the Trustor, and
(ii) to the extent such exclusions are attributable to acts or omissions of
the Trustor. The payor of any indemnity under this Section 6.01 shall be
subrogated to any right of the person indemnified in respect of the matter as
to which such indemnity was paid. The indemnities contained in this Section
6.01 shall survive the termination of this Agreement.
Section 6.02. Limitations on the Trustor's Liability. The Trustor
shall not have any liability for the performance of this Agreement except as
expressly set forth herein.
Section 6.03. Fees; Compensation. Except as provided in Section
3.06(e) or 6.01 hereof, the Owner Trustee agrees that it shall have no right
against the Trustor or the Trust Estate for any fee as compensation for its
services hereunder.
Section 6.04. Supplements and Amendments. At any time and from time
to time, only upon the written request of the Trustor (a) SSB and the Trustor
shall execute a supplement hereto for the purpose of adding provisions to, or
changing or eliminating provisions of, this Agreement as specified in such
request and (b) the Owner Trustee shall, subject to the provisions of Section
8.01 of the Indenture, enter into or consent to such written amendment or
modification of or supplement to any of the Operative Agreements as the
Trustor and any other necessary parties may agree to in writing and as may be
specified in such request, or execute and deliver such written waiver of the
terms of any of the Operative Agreements as may be agreed to in writing by the
Trustor and as may be specified in such request; provided, that (i) the Owner
Trustee shall not execute any such supplement, amendment, waiver or
modification without the prior written consent of the Trustor, (ii) if in the
reasonable opinion of the Owner Trustee any document required to be executed
by it pursuant to this Section adversely affects any right or duty of, or
immunity or indemnity in favor of, the Owner Trustee under this Agreement or
any other Operative Agreement, the Owner Trustee may in its discretion
decline to execute such document and (iii) any amendment or supplement to this
Agreement shall comply with the provisions of Section 7.13 of the
Participation Agreement. It shall not be necessary that any request pursuant
to this Section specify the particular form of the proposed document to be
executed pursuant to such request, but it shall be sufficient if such request
shall indicate the substance thereof. Promptly after the execution by SSB or
the Owner Trustee of any document pursuant to this Section, the Owner Trustee
shall mail a conformed copy thereof to the Trustor, the Indenture Trustee and
the Lessee, but the failure of the Owner Trustee to mail such conformed copies
shall not impair or affect the validity of such document.
Section 6.05. Nature of Title of Trustor. The Trustor shall not
have any legal title to any part of the Lessor's Estate. No transfer, by
operation of law or otherwise, of the right, title and interest of the Trustor
in and to the Lessor's Estate or the trust hereunder shall operate to
terminate this Agreement or Lessor's Estate.
Section 6.06. Power of Owner Trustee to Convey. Any assignment,
sale, transfer or other conveyance by the Owner Trustee of the interest of the
Owner Trustee in the Operative Agreements or in the Aircraft or any part
thereof pursuant to and in compliance with the terms of this Agreement or the
Operative Agreements shall bind the Trustor and shall be effective to transfer
or convey all right, title and interest of the Owner Trustee in and to the
Operative Agreements or the right, title and interest of the Owner Trustee and
the Trustor in and to the Aircraft or such part thereof. No purchaser or
other grantee shall be required to inquire as to the authorization, necessity,
expediency or regularity of such assignment, sale, transfer or conveyance or
as to the application of any sale or other proceeds with respect thereto by
the Owner Trustee.
Section 6.07. Notices. All notices, demands, declarations and other
communications required by this Agreement shall be in writing and shall be
deemed received (a) if given by telecopier, when transmitted and the
appropriate telephonic confirmation received if transmitted on a Business Day
and during normal business hours of the recipient, and otherwise on the next
Business Day following transmission, (b) if given by certified mail, return
receipt requested, postage prepaid five Business Days after being deposited in
the United States mail, and (c) if given by FedEx service or other means, when
received or personally delivered, addressed:
If to the Owner Trustee: State Street Bank and Trust Company of Connecticut,
National Association
c/o State Street Bank and Trust Company
Two International Place
4th Floor
Boston, Massachusetts 02110
Attention: Corporate Trust Department
Telephone: (617) 664-5526
Facsimile: (617) 664-5371
If to the Trustor: PMCC Leasing Corporation
200 First Stamford Place
Stamford, Connecticut 06902
Attention: Vice President Leasing
with a copy to Director, Portfolio Administration
Telephone: (914) 335-5000
Facsimile: (914) 335-8301
If to the Indenture
Trustee: First Security Bank, National Association
79 South Main Street
Salt Lake City, Utah 84111
Attention: Corporate Trust Department
Telephone: (801) 246-5630
Facsimile: (801) 246-5053
or as to any of the foregoing parties at such other address as such party may
designate by notice duly given in accordance with this Section to the other
parties.
Section 6.08. Situs of Trust; Applicable Law; Severability. THIS
AGREEMENT SHALL IN ALL RESPECTS BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE INTERNAL LAWS OF THE STATE OF CONNECTICUT, INCLUDING ALL MATTERS OF
VALIDITY, CONSTRUCTION AND PERFORMANCE. If any provision of this Agreement
shall be invalid or unenforceable, the remaining provisions hereof shall
continue to be fully effective; provided, that such remaining provisions do
not increase the obligations or liabilities of the Owner Trustee or the
Trustor.
Section 6.09. Successors and Assigns. This Agreement shall be
binding upon and shall inure to the benefit of, and shall be enforceable by,
the parties hereto and their respective successors and permitted assigns,
including any successive holder of the Beneficial Interest, but only to the
extent the Beneficial Interest has been transferred or assigned in accordance
with the limitations of Section 7.03(d) of the Participation Agreement.
Section 6.10. Headings and Table of Contents. The headings of the
Articles and Sections of this Agreement and the Table of Contents are inserted
for convenience only and shall not affect the meaning or construction of any
of the provisions hereof.
Section 6.11. Identification of Trust. This trust may for
convenience be referred to as the "Federal Express Corporation Trust No.
N670FE."
Section 6.12. Counterparts. This instrument may be executed in any
number of counterparts or upon separate signature pages bound together in
several counterparts, each of which when so executed shall be deemed to be an
original, and such counterparts together shall constitute and be one and the
same instrument.
Section 6.13. Trustor Interest. The Trustor has only a beneficial
interest in any specific property of this Trust. No creditor of the Trustor
shall have any right to obtain possession of, or otherwise exercise legal or
equitable remedies with respect to, the property of this trust (as opposed to
the Trustor's beneficial interest in this trust).
Section 6.14. Performance by the Trustor. Any obligation of the
Owner Trustee hereunder or under any Operative Agreement or other document
contemplated herein may be performed by the Trustor and any such performance
shall not be construed as a revocation of the trust created hereby.
IN WITNESS WHEREOF, SSB and the Trustor have caused this Agreement to
be duly executed all as of the date first above written.
PMCC LEASING CORPORATION
By:
-------------------------------------------------
Name: Joan D. Woodroof
Title: Manager, Structured Finance
STATE STREET BANK AND TRUST COMPANY OF
CONNECTICUT, NATIONAL ASSOCIATION
By:
-------------------------------------------------
Name: Paul D. Allen
Title: Vice President
SCHEDULE I
DEFINITIONS
(FEDERAL EXPRESS CORPORATION TRUST NO. N670FE)
GENERAL PROVISIONS
The following terms shall have the following meanings for all
purposes of the Operative Agreements (other than the Pass Through Agreement,
the Series Supplements, the Intercreditor Agreement and the Liquidity
Facilities) referred to below, unless otherwise defined in an Operative
Agreement or the context thereof shall otherwise require. In the case of any
conflict between the provisions of this Schedule and the provisions of any
Operative Agreement, the provisions of such Operative Agreement shall control
the construction of such Operative Agreement.
Unless the context otherwise requires, (i) references to agreements
shall be deemed to mean and include such agreements as amended and
supplemented from time to time, and (ii) references to parties to agreements
shall be deemed to include the successors and permitted assigns of such
parties.
DEFINED TERMS:
Additional Insured. As defined in Article 13 of the Lease.
Aeronautics Authority. As appropriate, the Federal Aviation
Administration and/or the Administrator of the Federal Aviation
Administration, any successor to the former United States Civil Aeronautics
Board, or any Person, governmental department, bureau, commission or agency
located in the United States succeeding to the functions of any of the
foregoing.
Affidavits. The affidavits of citizenship of the Owner Trustee and
the Owner Participant.
Affiliate. With respect to any Person, any other Person directly or
indirectly controlling, controlled by or under common control with such
Person. For the purposes of this definition, "control" (including "controlled
by" and "under common control with") shall mean the power, directly or
indirectly, to direct or cause the direction of the management and policies of
such Person whether through the ownership of voting securities or by contract
or otherwise. In no event shall the Owner Trustee or the Lessor be deemed an
Affiliate of the Owner Participant.
After-Tax Basis. A basis such that any payment to be received by a
Person shall be supplemented by a further payment to such Person so that the
sum of the two payments, after deduction of all Taxes resulting from the
receipt or accrual of such payments, shall be equal to the payment to be
received. In the case of amounts payable to the Lessor, the Owner Participant,
or any corporate Affiliate of the Owner Participant, it shall be presumed that
such Person is at all times subject to Federal income tax at the maximum
marginal rate generally applicable to corporations from time to time and
actual state, local and foreign income taxes.
Air Carrier. Any U.S. Air Carrier and any "foreign air carrier" (as
defined in the Transportation Code) as to which there is in force a permit
granted under Section 41302 of the Transportation Code.
Airbus Guaranty. The Guaranty to be dated the Delivery Date executed
by the Manufacturer and guaranteeing AVSA's Warranty Bill of Sale.
Aircraft. The Airframe to be sold by AVSA to the Owner Trustee as
provided in the Participation Agreement and to be leased under the Lease (or
any permitted substitute airframe thereunder) together with two Engines
(whether either is an initial Engine or a Replacement Engine) whether or not
any of such initial or Replacement Engines may from time to time be installed
on such Airframe or may be installed on any other airframe or on any other
aircraft, including any aircraft substituted pursuant to Section 11.03 of the
Lease. Prior to delivery of the initial Lease Supplement, references in the
Operative Agreements (including Section 3.05 of the Participation Agreement)
to Aircraft shall mean the Airbus A300F4-605R airframe bearing FAA
Registration Number N670FE and Manufacturer's serial number 777, together with
two General Electric CF6-80C2-A5F engines.
Airframe. The Airbus A300F4-605R aircraft (excluding the Engines or
engines from time to time installed thereon) to be leased by the Lessor to the
Lessee pursuant to the Lease and the initial Lease Supplement and having the
United States FAA Registration Number initially and manufacturer's serial
number specified in the initial Lease Supplement, including (i) all Parts in
respect thereof and (ii) any Replacement Airframe which may be substituted
pursuant to Section 11.03 of the Lease.
Ancillary Agreement. Any written agreement of the Lessee to which the
Lessor is a party or to which the Lessor has consented in writing entered into
on or prior to the Delivery Date or any date thereafter in connection with the
transactions contemplated by the Operative Agreements, as such agreement may
be amended and supplemented from time to time with the consent of the Lessor
and delivered to the Owner Trustee, the Indenture Trustee, the Pass Through
Trustee, the Subordination Agent, each Liquidity Provider and the Owner
Participant.
Ancillary Agreement I. The Ancillary Agreement I (Federal Express
Corporation Trust No. N670FE), dated the Certificate Closing Date, among the
Lessee, the Owner Trustee, not in its individual capacity, but solely as Owner
Trustee, the Owner Participant and the Indenture Trustee not in its individual
capacity, but solely as Indenture Trustee, as originally executed or as
amended, modified or supplemented with the consent of all the parties thereto.
Ancillary Agreement II. The Ancillary Agreement II (Federal Express
Corporation Trust No. N670FE), dated the Certificate Closing Date, among the
Lessee, the Owner Trustee, not in its individual capacity, but solely as Owner
Trustee, the Owner Participant and the Indenture Trustee not in its individual
capacity, but solely as Indenture Trustee, as originally executed or as
amended, modified or supplemented with the consent of all the parties thereto.
Application. The application for registration of the Aircraft with
the FAA in the name of the Owner Trustee.
Appraisal. The report prepared by BK Associates, Inc. and to be
delivered to the Owner Participant (with an abbreviated report to the Lessee)
on the Delivery Date pursuant to Section 4.02(h) of the Participation
Agreement.
Assignment and Assumption Agreement. Any agreement delivered in
compliance with Section 7.03(d) of the Participation Agreement.
Average Life Date. For any Certificate, the date which follows the
prepayment date by a period equal to the Remaining Weighted Average Life of
such Certificate.
AVSA. AVSA S.A.R.L., a societe a responsabilite limitee, organized
and existing under the laws of France.
AVSA Consent and Agreement. The Consent and Agreement dated as of
May 1, 1997, executed by AVSA.
AVSA's FAA Bill of Sale. The bill of sale for the Airframe on AC
Form 8050-2, or such other form as may be approved by the Aeronautics
Authority, executed by AVSA in favor of the Owner Trustee and to be dated the
Delivery Date.
AVSA's Warranty Bill of Sale. The full warranty bill of sale
covering the Aircraft (and specifically referring to each Engine) executed by
AVSA as owner of the Aircraft in favor of the Owner Trustee and to be dated
the Delivery Date.
Bankruptcy Code. The Federal Bankruptcy Code of 1978, as amended, and
any successor thereto.
Bankruptcy Default. An event specified in Section 16.01(e), (f) or
(g) of the Lease which either does or, with the giving of notice or lapse of
time or both, would constitute an Event of Default.
Basic Rent. The aggregate periodic rent payable for the Aircraft
throughout the Basic Term pursuant to Section 3.02 of the Lease, adjusted
pursuant to Article 3 of the Lease.
Basic Term. The period commencing at the beginning of the day on the
Delivery Date and ending at the end of the day on September 2, 2020, or such
earlier date on which the Lease shall be terminated as provided therein.
Beneficial Interest. The interest of the Owner Participant under the
Trust Agreement.
Business Day. Any day on which commercial banks are not authorized or
required to close in New York, New York, Memphis, Tennessee and the city in the
United States in which the office or agency is maintained by the Pass Through
Trustee for the payment of the Pass Through Certificates, and after the Lien
of the Indenture is discharged, Boston, Massachusetts.
Certificate Closing Date. The date of the closing with respect to the
purchase of Certificates by the Pass Through Trustee contemplated by Section
2.01(b) of the Participation Agreement.
Certificates. The Equipment Trust Certificates (Federal Express
Corporation Trust No. N670FE), issued by the Owner Trustee pursuant to the
Indenture and any certificate issued in exchange therefor or replacement
thereof pursuant to the Indenture.
Change in Tax Law. Any change to the Code or the Treasury regulations
promulgated thereunder or the publication of any revenue ruling, revenue
procedure or any informational release by the Internal Revenue Service or the
Department of Treasury either of which would change or would allow a change in
the tax assumptions or structure upon which the lease economics were based,
provided that the Owner Participant or the Lessee has notified the other party
of such change in writing prior to the Delivery Date.
Change in Tax Rate. Any amendment, modification, deletion, addition,
or change to the Code which is enacted into law after the Delivery Date which
changes the highest marginal statutory rate of Federal income tax applicable
to the Owner Participant (other than a change which is in the nature of a
minimum tax).
Citizen of the United States. A citizen of the United States as
defined in Section 40102(a)(15) of the Transportation Code, or any analogous
part of any successor or substituted legislation or regulation at the time in
effect.
Class A Liquidity Provider. Has the meaning specified in Section
1.01 of the Intercreditor Agreement.
Class B Liquidity Provider. Has the meaning specified in Section
1.01 of the Intercreditor Agreement.
Closings. The closing with respect to the acquisition of the Pass
Through Certificates by the Underwriters and the closing with respect to the
acquisition of Certificates by the Pass Through Trustee.
Code. Except as otherwise provided, the Internal Revenue Code of
1986, as amended from time to time.
Collateral Account. The deposit account established and maintained
pursuant to Section 2.13 of the Indenture.
Collateral Account Control Agreement. The Collateral Account Control
Agreement dated as of May 1, 1997 among State Street Bank and Trust Company,
the Indenture Trustee and the Owner Trustee.
Commitment. The amount of the Owner Participant's participation in
the Purchase Price required to be made available or paid as provided in
Section 3.02 of the Participation Agreement.
Consent and Agreement. The Consent and Agreement dated as of May 1,
1997 executed by the Manufacturer.
Consent and Guaranty. The Consent and Guaranty of the Manufacturer
attached to the Purchase Agreement.
Corporate Trust Administration. The Corporate Trust Administration
office of the Owner Trustee located at 750 Main Street, Hartford, Connecticut
06103, Attention: Corporation Trust Administration, or such other office at
which the Owner Trustee's corporate trust business shall be administered which
the Owner Trustee shall have specified by notice in writing to the Lessee, the
Owner Participant and the Indenture Trustee.
Corporate Trust Department. The Corporate Trust Department office of
the Indenture Trustee located at 79 South Main Street, Salt Lake City, Utah
84111, Attention: Corporate Trust Department, or such other office at which
the Indenture Trustee's corporate trust business shall be administered which
the Indenture Trustee shall have specified by notice in writing to the Lessee,
the Owner Participant and the Owner Trustee.
CRAF Program. Has the meaning specified in Section 7.01(f) of the
Lease.
Cut-Off Date. September 1, 1997.
Debt Portion. The amount specified as such on Schedule IV to the
Participation Agreement.
Debt Rate. The weighted average (based on Outstanding principal
amount) rate of interest on the Certificates issued pursuant to the Indenture.
Default. Any event or condition which, with the lapse of time or the
giving of notice, or both, would constitute an Event of Default.
Delivery Date. The date on which the Aircraft is delivered and sold
by AVSA to the Lessor and leased by the Lessor to the Lessee under the Lease,
which date shall also be the date of the initial Lease Supplement.
Delivery Notice. Notice of the Aircraft's Delivery Date, given by
the Lessee as provided in Section 3.01 of the Participation Agreement and
including any notice with respect to a postponed Delivery Date given by the
Lessee pursuant to Section 3.05(c) of the Participation Agreement.
Eligible Deposit Account. Either (a) a segregated account with an
Eligible Institution or (b) a segregated trust account with the corporate
trust department of a depository institution with corporate trust powers
organized under the laws of the United States or any state thereof, or the
District of Columbia, and whose deposits are insured by the Federal Deposit
Insurance Corporation, provided that such institution also has a combined
capital and surplus of at least $100,000,000 and a rating of A or better from
the Thomson Bank Watch.
Eligible Institution. A depository institution organized under the
laws of the United States or any one of the states thereof, or the District of
Columbia, or any domestic branch of a foreign bank, which in any such case at
all times (a) has either (x) a long-term unsecured debt rating of at least Aa2
by Moody's or (y) a short-term certificate of deposit rating of P-1 by
Moody's, (b) has either (x) a long-term unsecured debt rating of a least AA by
S&P or (y) a short-term certificate of deposit rating of A-1+ by S&P and (c)
is a member of the Federal Deposit Insurance Corporation.
Engine. Each of the two General Electric CF6-80C2-A5F engines listed
by its manufacturer's serial number in the initial Lease Supplement and leased
pursuant to the Lease, whether or not from time to time installed on the
Airframe or installed on any other airframe or on any other aircraft, and any
Replacement Engine which may from time to time be substituted for an Engine
pursuant to Section 7.02(a)(vii), 10.02(c), 10.03, 11.03, 11.04 or 12.02 of
the Lease, together with all Parts related thereto. Except as otherwise
provided, at such time as a Replacement Engine shall be so substituted and the
Engine for which the substitution is made shall be released from the Lien of
the Indenture, such replaced Engine shall cease to be an "Engine" under the
Lease. The term "Engines" means, as of any date of determination, both Engines
then leased to the Lessee pursuant to the Lease.
Engine Consent. The Engine Consent dated as of May 1, 1997, executed
by the Engine Manufacturer.
Engine Manufacturer. General Electric Company, a New York
corporation.
Engine Warranty Assignment. The Engine Warranty Assignment (Federal
Express Corporation Trust No. N670FE), dated as of May 1, 1997 between the
Lessor and the Lessee.
ERISA. The Employee Retirement Income Security Act of 1974, as
amended.
ERISA Plan. As defined in Section 8.01(b)(xii) of the Participation
Agreement.
Estimated Expense Amount. Has the meaning specified in Section
10.01(a) of the Participation Agreement.
Event of Default. Each of the events specified in Article 16 of the
Lease.
Event of Loss. Any of the following events with respect to the
Aircraft, the Airframe or any Engine: (i) loss of such property or its use (A)
for a period in excess of 60 days due to theft or disappearance or such longer
period, not to exceed 180 days from the end of such initial 60-day period, if
and so long as the location of such property is known to the Lessee and the
Lessee is diligently pursuing recovery of such property, or to the end of the
Term, if less (unless such theft or disappearance constitutes an Event of Loss
pursuant to (i)(B) or (ii) hereof) or (B) for a period in excess of 60 days
due to the destruction, damage beyond economic repair or rendition of such
property permanently unfit for normal use by Lessee for any reason whatsoever;
(ii) any damage to such property which results in an insurance settlement with
respect to such property on the basis of a total loss, or constructive or
compromised total loss; (iii) (1) condemnation, confiscation or seizure of, or
requisition of title to such property by the Government, any foreign
government or purported government or any agency or instrumentality thereof,
or (2) condemnation, confiscation, or seizure of, or requisition or taking of,
use of such property (A) by a foreign government or instrumentality or agency
of any such foreign government, for a period in excess of 180 days (or such
shorter period ending on the earlier of the expiration of the Term or on the
date on which an insurance settlement with respect to such property on the
basis of a total loss or constructive or compromised total loss shall occur)
or (B) by the Government for a period extending beyond the Term; and (iv) as a
result of any law, rule, regulation, order or other action by the Aeronautics
Authority or other governmental body having jurisdiction, the use of the
Aircraft or Airframe in the normal course of air transportation of cargo shall
have been prohibited by virtue of a condition affecting all Airbus A300-600
series aircraft equipped with engines of the same make and model as the
Engines for a period of twelve (12) consecutive months, unless the Lessee,
prior to the expiration of such twelve (12) month period, shall be diligently
carrying forward all steps which are necessary or desirable to permit the
normal use of the Aircraft or Airframe or, in any event, if such use of the
Aircraft or the Airframe shall have been prohibited for a period of
twenty-four (24) consecutive months or until the end of the Term, if earlier.
The date of such Event of Loss shall be (s) the 61st day or the 241st day, as
the case may be, following loss of such property or its use due to theft or
disappearance (or the end of the Term or the Lessee's abandonment of diligent
efforts to recover such property, if earlier); (t) the 61st day following the
date of any destruction, damage beyond economic repair or rendition of such
property permanently unfit for normal use; (u) the date of any insurance
settlement on the basis of a total loss or constructive or compromised total
loss; (v) the date of any condemnation, confiscation, seizure or requisition
of title of such property; (w) the 181st day following condemnation,
confiscation, seizure or requisition for use of such property by a foreign
government referred to in clause (iii)(2)(A) above (or the end of the Term or
the date of any insurance settlement described therein, if earlier than such
181st day); (x) the last day of the Term in the case of requisition for use of
such property by the Government; (y) the last day of the 12 month or 24 month
period, referred to in clause (iv) above (or if earlier, the end of the Term
or abandonment of the Lessee's efforts to restore the normal use of the
Aircraft). An Event of Loss with respect to the Aircraft shall be deemed to
have occurred if any Event of Loss occurs with respect to the Airframe.
Excepted Payments. Collectively, (i) indemnity, expense,
reimbursement or other payments paid or payable by the Lessee in respect of
the Owner Participant, the Owner Trustee in its individual capacity or any of
their respective successors, permitted assigns, directors, officers,
employees, servants and agents or Affiliates, pursuant to the Participation
Agreement or any other Operative Agreement or any indemnity hereafter granted
to the Owner Participant or the Owner Trustee in its individual capacity
pursuant to the Lease or the Participation Agreement, (ii) proceeds of public
liability insurance (or government indemnities in lieu thereof) in respect of
the Aircraft payable as a result of insurance claims paid for the benefit of,
or losses suffered by, the Owner Trustee or the Indenture Trustee in their
respective individual capacities or by the Owner Participant, or their
respective successors, permitted assigns or Affiliates, (iii) proceeds of
insurance maintained with respect to the Aircraft by the Owner Participant
(whether directly or through the Owner Trustee) maintained in accordance with
Section 13.05 of the Lease but not required under Article 13 of the Lease,
(iv) payments of Supplemental Rent by the Lessee in respect of any amounts
payable under the Tax Indemnity Agreement, (v) any purchase price paid to the
Owner Participant for its interest in the Trust Estate pursuant to Section
7.03(d) of the Participation Agreement, (vi) subject to Section 3.05 of the
Lease, payments constituting increases in Basic Rent attributable to payments
arising pursuant to Section 5 of the Tax Indemnity Agreement, (vii) any
payments in respect of interest to the extent attributable to payments
referred to in clauses (i) through (vi) above and (viii) any right to demand,
collect or otherwise receive and enforce the payment of any amount described
in clauses (i) through (v) and (vii) above (except with respect to interest
attributable to payments referred to in clause (vi) above).
Expense; Expenses. Have the meaning specified in Section 9.01(a) of
the Participation Agreement.
Fair Market Renewal Term. A term with respect to which the Lessee has
exercised its option to renew the Lease pursuant to the second paragraph of
Section 4.01(a) thereof and with respect to which the conditions set forth in
such Section 4.01(a) are met.
Fair Market Rental. An amount determined on the basis of, and equal
in amount to, the rental which would be obtained in an arm's-length
transaction between an informed and willing lessee and an informed and willing
lessor unaffiliated with such lessee, neither being under any compulsion to
lease. In such determination, it shall be assumed that the Aircraft is in the
condition required under the Lease in the case of return of the Aircraft
pursuant to Article 12 of the Lease and Fair Market Rental shall be determined
in accordance with the provisions of Section 4.03 of the Lease.
Fair Market Value. An amount determined on the basis of, and equal in
amount to, the value which would be obtained in an arm's-length transaction
between an informed and willing purchaser under no compulsion to buy and an
informed and willing seller unaffiliated with such purchaser and under no
compulsion to sell, assuming the Aircraft (or other property) is unencumbered
by the Lease. In such determination, except for purposes of Section 17.01 of
the Lease (when it shall be determined based upon the actual condition and
location of the Aircraft), it shall be assumed that the Aircraft is in the
condition required under the Lease in the case of return of the Aircraft
pursuant to Article 12 of the Lease and Fair Market Value shall be determined
in accordance with the provisions of Section 4.03 of the Lease.
Federal Aviation Administration; FAA. The United States Federal
Aviation Administration and any successor agency or agencies thereto.
Final Drawing. Has the meaning specified in Section 1.01 of the
Intercreditor Agreement.
Fixed Renewal Rent. Semi-annual payments of rent during the Fixed
Renewal Term equal to the lesser of (i) Fair Market Rental as determined as of
the commencement of such Fixed Renewal Term and (ii) 50% of the average actual
semi-annual Basic Rent payable during the Basic Term.
Fixed Renewal Term. The term with respect to which the Lessee has
exercised its option to renew the Lease pursuant to the first paragraph of
Section 4.01(a) thereof and with respect to which the conditions set forth in
such Section 4.01(a) are met.
FPO Price. Has the meaning set forth in Section 4.02(a)(F) of the
Lease.
French Pledge Agreement. The French Pledge Agreement dated as of May
1, 1997 between the Owner Trustee and the Indenture Trustee.
FSB. First Security Bank, National Association, a national banking
association.
Government. The United States of America or an agency or
instrumentality thereof the obligations of which bear the full faith and
credit of the United States of America.
GTA. The General Terms Agreement dated as of July 3, 1991 between the
Engine Manufacturer and the Lessee related to the purchase by the Lessee of the
Engines as originally executed or as modified, amended or supplemented in
accordance with the terms thereof, but only insofar as the General Terms
Agreement relates to the Engines, to the extent assigned to the Owner Trustee
pursuant to the Engine Warranty Assignment.
Holder of a Certificate; Certificate Holder; Holder. As of any
particular time, the Person in whose name a Certificate shall be registered
(but not including the holder of any Pass Through Certificate).
Indemnitee. Each of SSB, in its individual capacity and as Owner
Trustee and Lessor, the Subordination Agent, in its individual capacity and in
its capacity as Subordination Agent, each Liquidity Provider, the Owner
Participant, the Indenture Trustee, in its individual capacity and as trustee,
the Owner Participant Guarantor and any successor (including any trustee which
may succeed to the Lessor's interest under the Lease), Affiliate, assign,
officer, director, employee, agent and servant of any of the foregoing, the
Lessor's Estate and the Trust Indenture Estate. Neither the Pass Through
Trustee nor any holder of a Pass Through Certificate shall be deemed to be an
Indemnitee.
Indenture. The Trust Indenture and Security Agreement (Federal
Express Corporation Trust No. N670FE), dated as of May 1, 1997, between the
Lessor and the Indenture Trustee, as supplemented by the Indenture and
Security Agreement Supplement.
Indenture and Security Agreement Supplement. The Indenture and
Security Agreement Supplement No. 1 (Federal Express Corporation Trust No.
N670FE) to be dated the Delivery Date, substantially in the form of Exhibit A
to the Indenture.
Indenture Default. Any event or condition which, with the lapse of
time or the giving of notice, or both, would constitute an Indenture Event of
Default.
Indenture Documents. Has the meaning specified in the Granting
Clause of the Indenture.
Indenture Event of Default. Each of the events specified in Section
7.01 of the Indenture.
Indenture Trustee. First Security Bank, National Association, a
national banking association, not in its individual capacity but solely as
Indenture Trustee under the Indenture.
Indenture Trustee's Liens. Any Lien against, on or with respect to
the Aircraft, the Lessor's Estate or the Trust Indenture Estate or any part
thereof resulting from (i) claims against the Indenture Trustee not related to
the administration of the Trust Indenture Estate or any transactions pursuant
to the Indenture or any document included in the Trust Indenture Estate, (ii)
any act or omission of the Indenture Trustee which is not related to the
transactions contemplated by the Operative Agreements or is in violation of
any of the terms of the Operative Agreements or (iii) Taxes imposed against
the Indenture Trustee in its individual capacity in respect of which the Lessee
has not indemnified (and is not obligated to indemnify) the Indenture Trustee
in such capacity.
Independent Appraisal. An appraisal conducted pursuant to Section
4.03 of the Lease.
Independent Investment Banker. An independent investment banking
institution of national standing appointed by the Lessee that is independent
in fact, does not have any direct financial interests, or any material
indirect financial interest, in the Lessee or any Affiliate of the Lessee, and
is not connected with the Lessee or any Affiliate of the Lessee, as an
officer, employee, promoter, underwriter, trustee, partner, director or Person
performing similar functions; provided, that if the Indenture Trustee shall
not have received written notice of such an appointment at least 10 days prior
to the Prepayment Date, "Independent Investment Banker" shall mean such an
institution appointed by the Indenture Trustee.
Intercreditor Agreement. The Intercreditor Agreement dated as of May
1, 1997, among the Pass Through Trustee, the Class A Liquidity Provider, the
Class B Liquidity Provider and the Subordination Agent.
Interest Drawing. Has the meaning specified in Section 1.01 of the
Intercreditor Agreement.
Invoice. The invoice for the Aircraft given by AVSA to the Lessor.
Lease. The Lease Agreement (Federal Express Corporation Trust No.
N670FE) dated as of May 1, 1997, entered into by the Lessor and the Lessee
concurrently with the execution and delivery of the Indenture, including,
without limitation, supplementation by one or more Lease Supplements entered
into pursuant to the applicable provisions of the Lease.
Lease Supplement. The Lease Supplement No. 1 (Federal Express
Corporation Trust No. N670FE) to be dated the Delivery Date, substantially in
the form of Exhibit A to the Lease.
Lease Term. The period commencing on the Delivery Date and ending at
the end of the Basic Term.
Lessee. Federal Express Corporation, a Delaware corporation.
Lessee Documents. Has the meaning set forth in Section 6.01(b) of the
Participation Agreement.
Lessor. State Street Bank and Trust Company of Connecticut, National
Association, a national banking association, not in its individual capacity
but solely as Owner Trustee under the Trust Agreement.
Lessor's Estate. All estate, right, title and interest of the Owner
Trustee in and to the Collateral Account, the Liquid Collateral, the Aircraft,
the Lease, any Lease Supplement, the Participation Agreement, AVSA's FAA Bill
of Sale, AVSA's Warranty Bill of Sale, the Airbus Guaranty, the Purchase
Agreement, the Purchase Agreement Assignment, the Consent and Agreement, the
AVSA Consent and Agreement, the Consent and Guaranty (to the extent assigned
by the Purchase Agreement Assignment), any Ancillary Agreement, the GTA, the
Engine Warranty Assignment, the Engine Consent, any warranty with respect to
the Airframe and the Engines, all amounts of Basic Rent and Supplemental Rent,
including without limitation, insurance proceeds (other than insurance
proceeds payable to or for the benefit of the Owner Trustee in its individual
capacity or the Owner Participant) and requisition, indemnity or other
payments of any kind for or with respect to the Aircraft (except amounts owing
to the Owner Participant, to the Indenture Trustee, to the Owner Trustee in its
individual capacity, or to any of their respective directors, officers,
employees and agents pursuant to Articles 8 and 9 of the Participation
Agreement), and all other property of the Owner Trustee purportedly subjected
to the Lien of the Indenture by the Granting Clause thereof; provided that in
no event shall "Lessor's Estate" include any Excepted Payment.
Lessor's Liens. Liens against, on or with respect to the Aircraft,
the Lessor's Estate or the Trust Indenture Estate or any part thereof, title
thereto or any interest therein arising as a result of (i) claims against the
Lessor, in its individual capacity or as Owner Trustee, or the Owner
Participant, in each case not related to the transactions contemplated by the
Operative Agreements, (ii) acts or omissions of the Lessor in its individual
capacity or as Owner Trustee, and, in the case of the Lessor in its individual
capacity, arising from its gross negligence or willful misconduct or expressly
prohibited under the Operative Agreements and any act or omission of the Owner
Participant which is in violation of any of the terms of the Operative
Agreements, (iii) Taxes or Expenses imposed against the Lessor, in its
individual capacity or as Owner Trustee, Owner Participant, Lessor's Estate or
the trust created by the Trust Agreement which are not required to be
indemnified against by the Lessee pursuant to the Participation Agreement by
reason of Section 8.01(b) or 9.01(b) thereof and which are not required to be
indemnified against by the Lessee pursuant to the Tax Indemnity Agreement, or
(iv) claims against the Lessor or the Owner Participant arising from the
voluntary transfer by the Lessor or the Owner Participant of its interests in
the Aircraft other than a transfer of the Aircraft pursuant to Section 4.02(a)
or Article 10 or 11 of the Lease and other than a transfer pursuant to the
exercise of the remedies set forth in Article 17 of the Lease.
Lien. Any mortgage, pledge, lien, charge, encumbrance, lease or
security interest or other similar interest.
Liquid Collateral. All amounts and securities deposited from time to
time in the Collateral Account and all the products, investments, earnings and
proceeds of the foregoing, including, but not limited to, all proceeds of the
investment or conversion thereof, voluntary or involuntary, into cash,
Specified Investments or other property, all rights to payment of any and
every kind, and other forms of obligations, and instruments and other property
which at any time constitute all or part or are included in the proceeds of
any of the foregoing.
Liquidity Facility. Has the meaning specified in Section 1.01 of the
Intercreditor Agreement.
Liquidity Provider. Has the meaning specified in Section 1.01 of the
Intercreditor Agreement.
Losses. Has the meaning specified in Section 17.02(a) of the
Participation Agreement.
Loss Payee. Has the meaning specified in Section 13.02(b)(i) of the
Lease.
Majority in Interest of Certificate Holders. As of a particular date
of determination, the Holders of more than 50% of the aggregate unpaid
principal amount of all Certificates outstanding as of such date excluding for
purposes of this definition any Certificates held by (i) the Owner Trustee or
the Owner Participant or any interests of the Owner Participant unless all
Certificates then outstanding shall be held by the Owner Participant, (ii) the
Lessee or (iii) any Affiliate of any thereof.
Make-Whole Premium. An amount determined as of the day before the
applicable Prepayment Date (or date of purchase, as the case may be) which an
Independent Investment Banker determines to be equal to the excess, if any, of
(i) the present value of the remaining scheduled payments of such principal
amount or portion thereof and interest thereon (excluding interest accrued
from the immediately preceding Payment Date to such Prepayment Date or date of
purchase, as the case may be) to the Maturity of such Certificate in
accordance with generally accepted financial practices assuming a 360-day year
consisting of twelve 30-day months at a discount rate equal to the Treasury
Yield, all as determined by the Independent Investment Banker over (ii) the
outstanding principal amount of such Certificate plus accrued interest.
Manufacturer. Airbus Industrie G.I.E., a groupement d'interet
economique formed under the laws of France.
Maturity. With respect to any Certificate, the date on which the
final principal amount of such Certificate is scheduled to be due and payable.
Moody's. Moody's Investors Service, Inc.
Net Present Value of Rents. The net present value, as of the
Delivery Date, of Basic Rent set forth in Schedule II of the Lease, discounted
at a rate equal to the Debt Rate per annum compounded semi-annually.
Non-U.S. Person. Any Person other than a U.S. Person.
Obsolete Parts. Parts which are severable from the Aircraft in
accordance with clauses (ii) and (iii) of the proviso to Section 9.02(b) of
the Lease and the Lessee in good faith determines to be obsolete or no longer
suitable or appropriate for use on the Airframe or any Engine.
Officer's Certificate. When delivered pursuant to the Indenture, a
certificate signed by a Responsible Officer of the Lessee or the Owner
Trustee, as the case may be, and delivered to the Indenture Trustee. Each
such certificate shall include the statements provided for in Section 15.07 of
the Indenture.
Operative Agreements. The Participation Agreement, the Trust
Agreement, AVSA's FAA Bill of Sale, AVSA's Warranty Bill of Sale, the Airbus
Guaranty, the Purchase Agreement, the Purchase Agreement Assignment, the GTA,
the Engine Warranty Assignment, the French Pledge Agreement, the Lease, the
Lease Supplement, the Owner Participant Guaranty, the Owner Trustee Guaranty,
if any, any Ancillary Agreement entered into by or with the written consent of
the Indenture Trustee, which by its terms is an Operative Agreement, the
Certificates outstanding at the time of reference, the Indenture, the
Indenture and Security Agreement Supplement, the Consent and Agreement, the
AVSA Consent and Agreement, the Consent and Guaranty (to the extent assigned
by the Purchase Agreement Assignment), the Engine Consent, the Tax Indemnity
Agreement, each Liquidity Facility, the Intercreditor Agreement, the
Collateral Account Control Agreement and any Assignment and Assumption
Agreement.
Opinion of Counsel. When delivered pursuant to the Indenture, a
written opinion of legal counsel, who in the case of counsel (a) for the
Lessee may be (i) an attorney employed by the Lessee who is generally
empowered to deliver such written opinions, (ii) Davis Polk & Wardwell or a
successor firm or (iii) other counsel designated by the Lessee and reasonably
satisfactory to the Indenture Trustee and (b) for the Owner Trustee or the
Indenture Trustee, an attorney selected by such Person and, in the case of the
Owner Trustee, reasonably satisfactory to the Indenture Trustee.
Outstanding. When used with respect to Certificates, as of the date
of determination and subject to the provisions of Section 10.04 of the
Indenture, all Certificates theretofore executed and delivered under the
Indenture, with the exception of the following:
(i) Certificates theretofore cancelled by the Indenture Trustee or
delivered to the Indenture Trustee for cancellation pursuant to
Section 2.08 of the Indenture or otherwise;
(ii) Certificates for which prepayment money in the necessary amount
has been theretofore deposited with the Indenture Trustee in trust
for the Holders of such Certificates pursuant to Section 14.01 of the
Indenture; provided, that if such Certificates are to be prepaid,
notice of such prepayment has been duly given pursuant to the
Indenture or provision therefor satisfactory to the Indenture Trustee
has been made; and
(iii) Certificates in exchange for or in lieu of which other
Certificates have been executed and delivered pursuant to Article II
of the Indenture.
Owner Participant. The trustor originally named in the Trust
Agreement and any successor thereto, and any Person to which the Owner
Participant transfers, in accordance with the Trust Agreement, its right,
title and interest in and to the Operative Agreements and the Lessor's Estate.
Owner Participant Guarantor. Philip Morris Capital Corporation, a
Delaware corporation, and any other provider of an Owner Participant Guaranty.
Owner Participant Guaranty. The Owner Participant Guaranty dated the
Certificate Closing Date by the Owner Participant Guarantor in favor of the
Lessee, the Owner Trustee, the Indenture Trustee and the Pass Through Trustee,
and any guaranty delivered in compliance with Section 7.03(d) of the
Participation Agreement.
Owner Trustee. SSB, not in its individual capacity except as
otherwise expressly stated, but solely as Owner Trustee under the Trust
Agreement.
Owner Trustee Guarantor. The provider of an Owner Trustee Guaranty.
Owner Trustee Guaranty. Any guaranty delivered in compliance with
Section 11.01(b)(ii) of the Participation Agreement.
Owner's Economic Return. The Owner Participant's anticipated net
after-tax book yield and aggregate after-tax cash during the Basic Term
utilizing the multiple investment sinking fund method of analysis, computed on
the basis of the same methodology and assumptions as were utilized by the
Owner Participant in determining Basic Rent, Stipulated Loss Value and
Termination Value percentages, as the case may be, as such assumptions may be
adjusted for events which have been the basis of adjustments to Rent pursuant
to Section 3.04 of the Lease.
Participation Agreement. The Participation Agreement (Federal Express
Corporation Trust No. N670FE), dated as of May 1, 1997, among the Lessee, the
Owner Trustee not in its individual capacity except as otherwise expressly
provided therein, but solely as owner trustee, the Owner Participant, the
Indenture Trustee not in its individual capacity except as otherwise expressly
provided therein, but solely as indenture trustee, the Pass Through Trustee
not in its individual capacity except as otherwise expressly provided therein,
but solely as pass through trustee and the Subordination Agent not in its
individual capacity except as otherwise expressly provided therein, but solely
as subordination agent.
Parts. All appliances, parts, components, instruments, appurtenances,
accessories, furnishings and other equipment of whatever nature (other than
complete Engines or engines) which may from time to time be incorporated or
installed in or attached to the Airframe or any Engine or title to which
remains vested in the Lessor pursuant to Article 8 of the Lease.
Pass Through Agreement. The Pass Through Trust Agreement dated as of
May 1, 1997 between the Lessee and the Pass Through Trustee.
Pass Through Certificates. Any of the Pass Through Certificates,
1997-1-A, the Pass Through Certificates, 1997-1-B or the Pass Through
Certificates, 1997-1-C, in each case as issued by the related Pass Through
Trust; and "Pass Through Certificates" means all of the Pass Through
Certificates issued by each of the Pass Through Trusts.
Pass Through Closing Date. The Business Day on which the sale of the
Pass Through Certificates to the Underwriters pursuant to the Underwriting
Agreement takes place.
Pass Through Trust. The Federal Express Corporation 1997-1 Pass
Through Trust Class A, Federal Express Corporation 1997-1 Pass Through Trust
Class B and Federal Express Corporation 1997-1 Pass Through Trust Class C, in
each case formed pursuant to the related Series Supplement in accordance with
the Pass Through Agreement; and "Pass Through Trusts" means all of such Pass
Through Trusts.
Pass Through Trustee. First Security Bank, National Association, a
national banking association, in its capacity as Pass Through Trustee under
the Pass Through Agreement and each Pass Through Trust.
Past Due Rate. In respect of (A) any amount payable to the Owner
Participant or the Owner Trustee a rate per annum during the period from and
including the due date to but excluding the date on which such amount is paid
in full equal to 2% plus the Debt Rate and (B) any principal of or interest on
any Certificate or any other amount payable under the Indenture, any
Certificate or any other Operative Agreement that is not paid when due
(whether at Maturity, by acceleration, by optional or mandatory prepayment or
otherwise) to any Holder, the Indenture Trustee or the Pass Through Trustee, a
rate per annum during the period from and including the due date to but
excluding the date on which such amount is paid in full equal to (i) in the
case of any such amount payable to the Holder of any Certificate, 2% plus the
interest rate applicable to such Certificate and (ii) in the case of any other
such amount, 2% plus the Debt Rate.
Payment Date. Each January 15 and July 15 commencing on July 15,
1997.
Payment Default. Any event specified in Section 16.01(a) or 16.01(b)
of the Lease which with the giving of notice or lapse of time or both would
constitute an Event of Default.
Permitted Investments. Those investments enumerated in Section
23.01(a) (i), (ii), (iii) and (iv) of the Lease.
Person. Any individual, sole proprietorship, partnership, joint
venture, joint stock company, trust, unincorporated organization, association,
corporation, institution, entity or government (federal, state, local,
foreign or any agency, instrumentality, division or body thereof).
Preliminary Notice. Has the meaning specified in Section 4.01(a) of
the Lease.
Premium Termination Date. With respect to the Series A Certificates,
December 27, 2011, with respect to the Series B Certificates, February 5, 2010
and with respect to the Series C Certificates, March 22, 2007.
Prepayment Date. Has the meaning specified in Section 6.02(b) of the
Indenture.
Prepayment Price. Has the meaning specified in Section 6.02(b) of the
Indenture.
Principal Amount. With respect to a Certificate means the stated
original principal amount of such Certificate and, with respect to all
Certificates, means the aggregate stated original principal amounts of all
Certificates.
Property. Any right or interest in or to property of any kind
whatsoever, whether real, personal or mixed and whether tangible or intangible.
Proposed Termination Date. The proposed date of termination of the
Lease as specified by the Lessee in its notice given pursuant to Section 10.01
thereof.
Purchase Agreement. The Airbus A300-600R Freighter Purchase Agreement,
dated as of July 3, 1991 between AVSA and the Lessee, including all exhibits,
appendices and letter agreements attached thereto as originally executed or as
modified, amended or supplemented in accordance with the terms thereof, but
only to the extent that the foregoing relates to the Aircraft and to the
extent assigned pursuant to the Purchase Agreement Assignment.
Purchase Agreement Assignment. The Purchase Agreement Assignment
(Federal Express Corporation Trust No. N670FE), dated as of May 1, 1997 between
the Lessor and the Lessee.
Purchase Price. Has the meaning specified in Ancillary Agreement II.
Record Date. With respect to Payment Dates under the Indenture
(except a date for payment of defaulted interest), December 31 for January 15
Payment Dates and June 30 for July 15 Payment Dates, whether or not such date
is a Business Day.
Recourse Amount. Has the meaning specified in Section 17.10 of the
Participation Agreement.
Refinancing. A non-recourse loan to the Lessor arranged pursuant to
Section 15.01 of the Participation Agreement.
Register. Has the meaning set forth in Section 3.02 of the Indenture.
Registrar. Has the meaning set forth in Section 3.02 of the
Indenture.
Regulation D. Regulation D of the Board of Governors of the Federal
Reserve System (or any successor), as the same may be modified and
supplemented and in effect from time to time.
Related Indentures. Collectively, the Trust Indenture and Security
Agreement for each of Federal Express Corporation Trust Nos. N671FE, N672FE,
N673FE, N674FE, N583FE and N584FE, each dated as of May 1, 1997, between the
Owner Trustee and the Indenture Trustee, the Trust Indenture and Security
Agreement for Federal Express Corporation Trust No. N581FE, dated as of May 1,
1997, between Wilmington Trust Company, as owner trustee and the Indenture
Trustee, and the Trust Indenture and Security Agreement for Federal Express
Corporation Trust No. N587FE, dated as of December 1, 1996, as amended and
restated as of May 1, 1997, between Wilmington Trust Company, as owner trustee
and the Indenture Trustee.
Remaining Weighted Average Life. On a given date with respect to any
Certificate the number of days equal to the quotient obtained by dividing (i)
the sum of each of the products obtained by multiplying (a) the amount of each
then remaining scheduled payment of principal of such Certificate by (b) the
number of days from and including such prepayment date to but excluding the
dates on which each such payment of principal is scheduled to be made; by (ii)
the then outstanding principal amount of such Certificate.
Renewal Rent. The amount payable by the Lessee as rent in accordance
with Section 4.01 of the Lease during any Renewal Term.
Renewal Term. One or more terms with respect to which the Lessee has
exercised its option to renew the Lease pursuant to Section 4.01(a) thereof.
Rent. All payments due from the Lessee under the Lease as Basic Rent,
Renewal Rent and Supplemental Rent, collectively.
Rent Payment Date. September 2, 2020 and each January 15 and July 15
commencing on July 15, 1997.
Reoptimization Date. Has the meaning specified in Section 15.02(a)
of the Participation Agreement.
Replacement Aircraft. Any aircraft substituted for the Aircraft
pursuant to Section 11.03(a) of the Lease.
Replacement Airframe. Has the meaning set forth in Section 11.03 of
the Lease.
Replacement Engine. A General Electric CF6-80C2-A5F engine (or an
engine of the same or another manufacturer) of equal or greater value,
airworthiness, remaining useful life and utility as the Engine being replaced,
together with all Parts relating to such engine; provided, however, that if
such replacement engine is not a General Electric CF6-80C2-A5F engine, such
replacement engine must then be commonly used in the commercial aviation
industry on Airbus A300-600 airframes.
Responsible Officer. With respect to the Owner Trustee (except for
purposes of the Trust Agreement in which case the definition of Responsible
Officer set forth in Section 3.10 of the Trust Agreement is applicable) or the
Indenture Trustee, any officer in its Corporate Trust Administration, as the
case may be, designated by such Person to perform obligations under the
Operative Agreements, and with respect to any other party, any corporate
officer or (except in the case of the Owner Participant) other employee of a
party who, in the normal performance of his or her operational
responsibilities, with respect to the subject matter of any covenant,
agreement or obligation of such party pursuant to any Operative Agreement,
would have responsibility for and knowledge of such matter and the
requirements of any Operative Agreement with respect thereto.
S&P. Standard & Poor's Ratings Group.
Scheduled Delivery Date. The Delivery Date specified in the Delivery
Notice pursuant to Section 3.01 of the Participation Agreement.
SEC. The Securities and Exchange Commission of the United States and
any successor agencies or authorities.
Secured Obligations. Has the meaning specified in the Granting
Clause of the Indenture.
Securities Act. The Securities Act of 1933, as amended.
Series "A" or "Series A Certificates". Certificates issued and
designated as "Series A" under the Indenture, in the Principal Amount and
maturities and bearing interest as specified in Exhibit B to the Indenture
under the heading "Series A".
Series "B" or "Series B Certificates". Certificates issued and
designated as "Series B" under the Indenture, in the Principal Amount and
maturities and bearing interest as specified in Exhibit B to the Indenture
under the heading "Series B".
Series "C" or "Series C Certificates". Certificates issued and
designated as "Series C" under the Indenture, in the Principal Amount and
maturities and bearing interest as specified in Exhibit B to the Indenture
under the heading "Series C".
Series Supplement or Series Supplements. The Series Supplement
1997-1-A to be executed and delivered by the Lessee and the Pass Through
Trustee, the Series Supplement 1997-1-B to be executed and delivered by the
Lessee and the Pass Through Trustee or the Series Supplement 1997-1-C to be
executed and delivered by the Lessee and the Pass Through Trustee.
Sinking Fund Redemption Date. Has the meaning specified in Section
6.06 of the Indenture.
Sinking Fund Redemption Price. Has the meaning specified in Section
6.06 of the Indenture.
Special Aviation Counsel. Daugherty, Fowler & Peregrin.
Specified Investments. Shall mean (a) direct obligations of the
United States of America or obligations fully guaranteed by the United States
of America; (b) commercial paper rated A-1/P-1 by S&P and Moody's,
respectively or, if such ratings are unavailable, rated by any nationally
recognized rating organization in the United States equal to the highest
rating assigned by such rating organization; (c) investments in negotiable
certificates of deposit, time deposits, banker's acceptances, commercial paper
or other direct obligations of, or obligations guaranteed by, commercial banks
organized under the laws of the United States or of any political subdivision
thereof (or any U.S. branch of a foreign bank) with issuer ratings of at least
B/C by Thomson Bankwatch, having maturities no later than 90 days following
the date of such investment; (d) overnight federal funds transactions with
members of the Federal Reserve System arranged by federal funds brokers; or
(e) overnight repurchase agreements with respect to the securities described
in clause (a) above entered into with an office of a bank or trust company
which is located in the United States of America or any bank or trust company
which is organized under the laws of the United States or any state thereof
and has capital, surplus and undivided profits aggregating at least $500
million.
SSB. State Street Bank and Trust Company of Connecticut, National
Association, a national banking association.
Stipulated Loss Value. As of any Stipulated Loss Value Determination
Date during the Basic Term, the amount determined by multiplying the Purchase
Price by the percentage set forth in Schedule III of the Lease under the
heading "Stipulated Loss Value Factor" opposite such date (as such Schedule
III may be adjusted from time to time as provided in Section 3.04 of the
Lease), and during any Renewal Term, the amount determined pursuant to Section
4.01(b) of the Lease. Notwithstanding any other provisions of the Lease or
the Participation Agreement or the Indenture, each Stipulated Loss Value for
the Aircraft shall be, under any circumstances and in any event, an amount,
together with so much of the arrears portion of Basic Rent due and owing
through the date of payment of Stipulated Loss Value as does not constitute an
Excepted Payment, at least sufficient to pay in full as of such date of
payment the aggregate unpaid principal amount of and accrued interest on the
Certificates outstanding on such date of payment. Subject to the immediately
preceding sentence, it is understood and agreed that the amounts set forth on
Schedule III of the Lease, for dates other than Rent Payment Dates on which
arrears Basic Rent is due, fully reflect appropriate Basic Rent accruals and
credits of unearned Basic Rent through such date and, accordingly, no further
accrual or credit shall be required through such date whenever Stipulated Loss
Value is to be calculated with reference to any such date; provided that if
amounts in respect of Stipulated Loss Value are payable under the Operative
Agreements after the Stipulated Loss Determination Date in respect of which
such Stipulated Loss Value was determined, the Lessor shall be compensated
during the period from the Stipulated Loss Determination Date to such payment
date in accordance with the provisions of the Operative Agreements.
Stipulated Loss Value Determination Date. Each date set forth on
Schedule III of the Lease.
Subordination Agent. First Security Bank, National Association, a
national banking association, not in its individual capacity but solely as
Subordination Agent.
Supplemental Rent. (a) All amounts, liabilities and obligations
which the Lessee assumes or agrees to perform or pay under the Lease or under
the Participation Agreement or Tax Indemnity Agreement or any Ancillary
Agreement or any other Operative Agreement to the Lessor, the Owner
Participant, the Indenture Trustee, the Subordination Agent, any Liquidity
Provider or others, including, without limitation, payments of Stipulated Loss
Value, FPO Price and amounts calculated by reference to Termination Value, any
amounts of Make-Whole Premium payable under the Indenture to the extent
provided in Section 3.03 of the Lease, and all amounts required to be paid by
Lessee under the agreements, covenants and indemnities contained in the Lease
or in the Participation Agreement or the Tax Indemnity Agreement or any other
Operative Agreement, but excluding Basic Rent and (b) all amounts that the
Owner Trustee is obligated to pay in accordance with clause (b) of the last
paragraph of Section 2.04 of the Indenture.
Tax. Has the meaning set forth in Section 8.01(a) of the
Participation Agreement.
Tax Indemnity Agreement. The Tax Indemnity Agreement (Federal
Express Corporation Trust No. N670FE), dated as of May 1, 1997, between the
Lessee and the Owner Participant.
Term. The Basic Term of the lease for the Aircraft under the Lease
and, if renewed pursuant to Section 4.01 of the Lease, each Renewal Term for
the Aircraft for which the Lease is renewed, or such earlier date on which the
Lease is terminated pursuant to its terms.
Termination Date. A Rent Payment Date during the Basic Term that is
on or after December 31, 2004 in the case of Article 10 of the Lease, and in
the case of (i) Section 4.02(a)(A) of the Lease, the Rent Payment Date falling
on January 15, 2016, (ii) Section 4.02(a)(D) or (E) of the Lease, a Rent
Payment Date that is on or after the seventh anniversary of the Delivery Date
and (iii) Section 4.02(a)(F) of the Lease, the last day of the Basic Term.
Termination Value. As of any Termination Date, the amount determined
by multiplying the Purchase Price by the percentage set forth in Schedule IV
of the Lease under the heading "Termination Value Factor" opposite such
Termination Date (as such Schedule IV may be adjusted from time to time as
provided in Section 3.04 of the Lease). Notwithstanding any other provisions
of the Lease, the Participation Agreement or the Indenture, each Termination
Value shall be, under any circumstances and in any event, an amount, together
with so much of the arrears portion of Basic Rent due and owing through the
date of payment of any amount calculated by reference to Termination Value as
does not constitute an Excepted Payment, at least sufficient to pay in full as
of such date of payment the aggregate unpaid principal amount of and accrued
interest on the Certificates outstanding on such date of payment. Subject to
the immediately preceding sentence, it is understood and agreed that the
amounts set forth on Schedule IV of the Lease, for dates other than Rent
Payment Dates on which arrears Basic Rent is due, fully reflect appropriate
Basic Rent accruals and credits of unearned Basic Rent through such date and,
accordingly, no further accrual or credit shall be required through such date
whenever Termination Value is to be calculated with reference to any such
date; provided that if amounts in respect of Termination Value are payable
under the Operative Agreements after the Termination Date in respect of which
such Termination Value was determined, the Lessor shall be compensated during
the period from the Termination Date to such payment date in accordance with
the provisions of the Operative Agreements.
Transaction Costs. Those costs and expenses set forth in Section
10.01(a) of the Participation Agreement.
Transportation Code. Title 49 of the United States Code, as amended
and in effect on the date of the Lease or as subsequently amended, or any
successor or substituted legislation at the time in effect and applicable, and
the regulations promulgated pursuant thereto.
Treasury Yield. At the time of determination with respect to any
Certificate, the interest rate (expressed as a semi-annual equivalent and as a
decimal and, in the case of United States Treasury bills, converted to a bond
equivalent yield) determined to be the per annum rate equal to the semi-annual
yield to maturity for United States Treasury securities maturing on the
Average Life Date on such Certificate and trading in the public securities
markets either as determined by interpolation between the most recent weekly
average yield to maturity for two series of United States Treasury securities,
trading in public securities markets, (i) one maturing as close as possible to,
but earlier than, the Average Life Date of such Certificate and (ii) the other
maturing as close as possible to, but later than, the Average Life Date of
such Certificate. In each case as published in the most recent H.15(519) or,
if a weekly average yield to maturity for United States Treasury securities
maturing on the Average Life Date of such Certificate is reported on the most
recent H.15 (519), such weekly average yield to maturity as published in such
H.15(919). "H.15(519)" means the weekly statistical release designated as
such, or any successor publication, published by the Board of Governors of the
Federal Reserve System. The date of determination of a Make-Whole Premium
will be the third Business Day prior to the applicable prepayment date and the
"most recent H.15(519)" means the H.15(519) published prior to the close of
business on the third Business Day prior to the applicable prepayment date.
Trust Agreement. The Trust Agreement (Federal Express Corporation
Trust No. N670FE), dated as of May 1, 1997, between the Owner Participant and
the Owner Trustee in its individual capacity.
Trust Estate. The Lessor's Estate.
Trust Indenture Act. The Trust Indenture Act of 1939, as amended.
Trust Indenture Estate. All estate, right, title and interest of the
Indenture Trustee in and to any of the property, rights, interests and
privileges granted to the Indenture Trustee pursuant to the Granting Clause of
the Indenture, other than Excepted Payments and any and all other rights of
the Owner Trustee or the Owner Participant expressly reserved to the Owner
Trustee or the Owner Participant pursuant to the Indenture.
Underwriters. Morgan Stanley & Co. Incorporated, First Chicago
Capital Markets, Inc., Goldman, Sachs & Co. and J.P. Morgan & Co.
Underwriting Agreement. The Underwriting Agreement dated May 22, 1997
among the Lessee and the Underwriters.
United States, U.S. or US. The United States of America.
U.S. Air Carrier. Any United States air carrier as to which there is
in force a certificate issued pursuant to Section 41102(a) or Section 41103 of
the Transportation Code, and as to which there is in force an air carrier
operating certificate issued pursuant to Chapter 447 of the Transportation
Code and Part 121 of the regulations under such Transportation Code, for
aircraft capable of carrying ten (10) or more individuals or 6,000 pounds or
more of cargo, or which may operate as an air carrier by certification or
otherwise under any successor or substitute provision thereof or in absence
thereof.
U.S. Person. A Person described in Section 7701(a)(30) of the Code.
==============================================================================
TRUST AGREEMENT
(FEDERAL EXPRESS CORPORATION TRUST NO. N671FE)
Dated as of May 1, 1997
between
PMCC LEASING CORPORATION,
Trustor
and
STATE STREET BANK AND TRUST COMPANY OF CONNECTICUT,
NATIONAL ASSOCIATION,
Owner Trustee
COVERING ONE AIRBUS A300F4-605R AIRCRAFT
SERIAL NO. 778, REGISTRATION NO. N671FE
==============================================================================
Page
TABLE OF CONTENTS
PARTIES.................................................................... 1
RECITALS................................................................... 1
ARTICLE 1
THE LESSOR'S ESTATE
Section 1.01. Authorization and Direction to Owner Trustee............. 1
Section 1.02. Declaration of Trust..................................... 2
Section 1.03. Conditions Precedent..................................... 2
ARTICLE 2
DISTRIBUTIONS
Section 2.01. Predelivery Funding; Rent, Etc........................... 2
Section 2.02. Excepted Payments........................................ 3
Section 2.03. Distributions after Release of Lien of Indenture......... 3
Section 2.04. Manner of Making Distributions........................... 4
ARTICLE 3
THE OWNER TRUSTEE
Section 3.01. Acceptance of Trust and Duties........................... 5
Section 3.02. Limitation on Authority of Owner Trustee................. 5
Section 3.03. Notice of Default........................................ 5
Section 3.04. Action Upon Instructions................................. 6
Section 3.05. Certain Duties and Responsibilities of Owner Trustee..... 6
Section 3.06. Certain Rights of Owner Trustee.......................... 7
Section 3.07. No Representations or Warranties as to Certain Matters... 9
Section 3.08. Status of Moneys Received................................ 10
Section 3.09. Self-Dealing............................................. 10
Section 3.10. Definition of a Responsible Officer...................... 10
Section 3.11. Resignation or Removal of Owner Trustee.................. 10
Section 3.12. Estate and Rights of Successor Owner Trustee............. 11
Section 3.13. Merger or Consolidation of SSB........................... 11
Section 3.14. Co-Trustees.............................................. 12
Section 3.15. Interpretation of Agreements............................. 13
Section 3.16. Not Acting in Individual Capacity........................ 13
Section 3.17. Books and Records; Tax Returns........................... 13
ARTICLE 4
TERMINATION OF TRUST
Section 4.01. Termination.............................................. 14
Section 4.02. Termination at Option of the Trustor..................... 15
Section 4.03. Distribution of Lessor's Estate upon Termination......... 15
ARTICLE 5
[RESERVED]
ARTICLE 6
MISCELLANEOUS
Section 6.01. Indemnification.......................................... 16
Section 6.02. Limitations on the Trustor's Liability................... 17
Section 6.03. Fees; Compensation....................................... 17
Section 6.04. Supplements and Amendments............................... 17
Section 6.05. Nature of Title of Trustor............................... 17
Section 6.06. Power of Owner Trustee to Convey......................... 17
Section 6.07. Notices.................................................. 18
Section 6.08. Situs of Trust; Applicable Law; Severability............. 19
Section 6.09. Successors and Assigns................................... 19
Section 6.10. Headings and Table of Contents........................... 19
Section 6.11. Identification of Trust.................................. 19
Section 6.12. Counterparts............................................. 19
Section 6.13. Trustor Interest......................................... 19
Section 6.14. Performance by the Trustor............................... 19
Schedule I Definitions
TRUST AGREEMENT
(FEDERAL EXPRESS CORPORATION TRUST NO. N671FE)
TRUST AGREEMENT (FEDERAL EXPRESS CORPORATION TRUST NO. N671FE) dated
as of May 1, 1997 (this "Agreement") between STATE STREET BANK AND TRUST
COMPANY OF CONNECTICUT, NATIONAL ASSOCIATION, a national banking association
(in its individual capacity, "SSB", and not in its individual capacity but
solely as trustee hereunder, the "Owner Trustee"), and PMCC LEASING
CORPORATION, a Delaware corporation (together with its successors and permitted
assigns, the "Trustor"). The capitalized terms used herein, unless otherwise
herein defined or the context hereof shall otherwise require, shall have the
respective meanings set forth in Schedule I attached hereto.
W I T N E S S E T H :
-------------------
WHEREAS, the Trustor desires to create a trust for the purpose of
issuing Certificates, the proceeds of which issuance shall initially be held
by the Indenture Trustee on behalf of the Owner Trustee in the Collateral
Account and released, subject to the proviso to Section 3.02(a) of the
Participation Agreement, on the Delivery Date in order to finance a portion of
the Purchase Price of the Aircraft, to acquire the Aircraft from AVSA on the
Delivery Date, to lease the Aircraft to the Lessee on the Delivery Date and to
receive the benefits provided for herein.
WHEREAS, SSB is willing to accept the trust as herein provided and to
perform its obligations hereunder in its individual capacity or as the Owner
Trustee as the case may be.
NOW THEREFORE, in consideration of the mutual covenants and agreements
contained herein, SSB and the Trustor agree as follows:
ARTICLE 1
THE LESSOR'S ESTATE
Section 1.01. Authorization and Direction to Owner Trustee. The
Trustor hereby authorizes and directs (or has authorized and directed) the
Owner Trustee, not individually but solely as the Owner Trustee hereunder:
(a) to execute and deliver as and when specified in Sections 4.01
and 4.02 of the Participation Agreement and each of the other Operative
Agreements to which the Owner Trustee is a party and to enter into and
perform the transactions contemplated thereby including, without
limitation, accepting title to, and delivery of, the Aircraft from AVSA on
the Delivery Date, and taking all appropriate action to cause the Airframe
to be registered with the Federal Aviation Administration in the name of
the Owner Trustee;
(b) to execute and deliver from time to time the Certificates in the
manner and subject to the terms and conditions provided in the
Participation Agreement and the Indenture;
(c) to execute and deliver each other document referred to in the
Operative Agreements to which the Owner Trustee is a party or which the
Owner Trustee is required to deliver pursuant to the Operative Agreements;
(d) subject to the terms of this Agreement, to perform the
obligations and duties and, upon instruction of the Trustor, exercise the
rights of the Owner Trustee under the Operative Agreements; and
(e) to execute and deliver all such other instruments, documents or
certificates and take all such other actions in accordance with the
directions of the Trustor, as the Trustor may deem necessary or advisable
in connection with the Certificate Closing Date and the Delivery Date and
the transactions contemplated hereby, the taking of any such action by the
Owner Trustee in the presence of the Trustor or its counsel to evidence,
conclusively, the direction of the Trustor.
Section 1.02. Declaration of Trust. SSB hereby declares and agrees,
in its individual capacity, that it will, and in its capacity as the Owner
Trustee does, hold the Lessor's Estate upon the trust herein set forth for the
use and benefit of the Trustor, subject, however, to the provisions of, and
the Lien created by, the Indenture. This Agreement is not intended by the
Trustor to create, and the trust created hereby is not intended by the Trustor
and the other parties interested herein to constitute a business trust for
purposes of the Bankruptcy Code.
Section 1.03. Conditions Precedent. The right and obligation of the
Owner Trustee to take the actions required by Section 1.01 hereof shall be
subject to the condition that the terms and conditions of Section 4.01 or
4.02, as the case may be, of the Participation Agreement shall have been
complied with in a manner satisfactory to the Owner Trustee and the Trustor.
ARTICLE 2
DISTRIBUTIONS
Section 2.01. Predelivery Funding; Rent, Etc. (a) The Trustor and
the Owner Trustee acknowledge that the proceeds from the sale of the
Certificates to be effected on the Certificate Closing Date are to be held by
the Indenture Trustee in the Collateral Account in the manner specified in the
Indenture for application as provided therein and in Section 3.02 of the
Participation Agreement.
(b) The Trustor and the Owner Trustee acknowledge that the
Lease will be security for the Certificates pursuant to the Indenture which
provides that all moneys payable by the Lessee to the Owner Trustee under the
Lease (other than Excepted Payments) are to be first paid to the Indenture
Trustee while the Lien of the Indenture is in effect, for distribution in
accordance with the terms of Article V of the Indenture. Except for amounts
received from the Indenture Trustee, which shall be applicable only in
accordance with clause (iii) below, the Owner Trustee shall promptly apply
each payment of the Rent (other than Excepted Payments), Stipulated Loss
Value, Termination Value, and any proceeds from the sale, requisition or
disposition of the Aircraft received by it as follows:
(i) prior to the release of the Lien of the Indenture, each such
payment shall be payable directly to the Indenture Trustee (and if any of
the same are received by the Owner Trustee shall, upon receipt, be paid
over to the Indenture Trustee without deduction, set off or adjustment of
any kind) for distribution in accordance with the provisions of Article V
of the Indenture; provided, that any payments received by the Owner Trustee
from (x) the Lessee with respect to SSB's or the Owner Trustee's fees and
disbursements under this Agreement, or (y) the Trustor pursuant to Section
6.01 hereof shall not be paid over to the Indenture Trustee but shall be
retained by the Owner Trustee and applied toward the purpose for which such
payments were made;
(ii) after the release of the Lien of the Indenture, any amount
remaining after application in full in accordance with paragraph (b)(i) of
this Section 2.01 and which represents payments for which provision as to
the application thereof is made in any other Operative Agreement shall be
applied promptly to the purpose for which such payment shall have been made
in accordance with the terms of such Operative Agreement; and
(iii) after application in accordance with paragraphs (i) and (ii) of
this Section 2.01(b), or to the extent received from the Indenture Trustee
under the terms of the Indenture, the balance, if any, remaining shall be
paid to the Trustor.
Section 2.02. Excepted Payments. Notwithstanding any other provision
contained herein, all Excepted Payments at any time received by the Owner
Trustee shall be distributed promptly to the applicable Person entitled
thereto, and such payment shall not be deemed under any circumstances to be
part of the Lessor's Estate.
Section 2.03. Distributions after Release of Lien of Indenture.
Except as otherwise provided in Sections 2.01 and 2.02 hereof:
(a) all payments received and amounts realized by the Owner
Trustee under the Lease or otherwise with respect to the Aircraft or
any part thereof (including, without limitation, all payments
received pursuant to Section 17.01 of the Lease and amounts realized
upon the sale or lease of the Aircraft or any part thereof after the
termination of the Lease with respect thereto), to the extent
received or realized at any time after the Lien of the Indenture
shall have been released pursuant to the terms of the Indenture, and
(b) moneys not included in paragraph (a) of this Section 2.03
remaining as part of the Lessor's Estate after the Lien of the
Indenture has been released,
shall, to the extent required, be retained by the Owner Trustee as
reimbursement for all expenses hereunder or under the Lease not theretofore
reimbursed under this Agreement, the Lease or otherwise and to which the Owner
Trustee is entitled to be reimbursed pursuant to the provisions thereof, and
any balance remaining thereafter shall be distributed to the Trustor.
Section 2.04. Manner of Making Distributions. The Owner Trustee
shall make distributions or cause distributions to be made to (i) the Trustor
pursuant to this Article 2 by transferring by wire transfer in immediately
available funds the amount to be distributed to the account set forth in the
Participation Agreement or to such other account or accounts of the Trustor as
it may designate from time to time by written notice to the Owner Trustee (and
the Owner Trustee shall use best efforts to cause such funds to be transferred
by wire transfer on the same day as received, but in any case not later than
the next succeeding Business Day), and (ii) the Indenture Trustee pursuant to
this Article 2 by paying the amount to be distributed to the Indenture Trustee
in the manner specified in the Indenture; provided, that the Owner Trustee
shall invest overnight, for the benefit of the Trustor, in investments that
would be permitted by Article 23 of the Lease (but only to the extent funds
are received on or prior to 2:00 P.M. (Eastern Time) and such investments are
available and, if such investments are not available to the Owner Trustee in
investments which, after consultation with the Trustor, the Trustor shall
direct) all funds not transferred by wire transfer on the same day as they
were received. Notwithstanding the foregoing but subject always to the
provisions of, and the Lien created by, the Indenture, the Owner Trustee will,
if so requested by the Trustor by written notice, pay in immediately available
funds any and all amounts payable by the Owner Trustee hereunder to the
Trustor as directed by the Trustor.
ARTICLE 3
THE OWNER TRUSTEE
Section 3.01. Acceptance of Trust and Duties. SSB accepts the trust
hereby created and, subject to Section 1.03 hereof, in its capacity as the
Owner Trustee agrees to perform the same, including without limitation,
subject to Section 1.03 hereof, the actions specified in Section 1.01 hereof
as herein provided. The Owner Trustee agrees to disburse all monies that it
receives under the Operative Agreements in accordance with the terms hereof.
The Owner Trustee shall not be answerable or accountable in its individual
capacity except as a result of or arising from (a) the Owner Trustee's willful
misconduct or gross negligence (in its individual capacity or as trustee), (b)
any breach by the Owner Trustee of its representations, warranties and
covenants given in its individual capacity in this Agreement, Article 5 of the
Lease, Sections 7.02(a) and (b) and 7.04 of the Participation Agreement or its
representations, warranties and covenants given in its individual capacity in
Sections 3.05 and 3.08 of the Indenture, (c) the failure to use ordinary care
in receiving, handling and disbursing funds, (d) Lessor's Liens attributable
to it in its individual capacity, and (e) taxes, fees, or other charges on,
based on, or measured by, any fees, commissions or compensation received by
SSB or the Owner Trustee in connection with the transactions contemplated by
the Lease, the Indenture and the Operative Agreements including this Agreement.
Section 3.02. Limitation on Authority of Owner Trustee. The Owner
Trustee shall have no power, right, duty or authority to, and agrees that it
will not, manage, control, possess, use, sell, lease, dispose of or otherwise
deal with the Aircraft, Airframe, Engines, any Part thereof or any other
property at any time constituting a part of the Lessor's Estate, or otherwise
to take or refrain from taking any action under or in connection with the
Operative Agreements, except (i) to execute and deliver the Operative
Agreements to which it is a party, (ii) to exercise and carry out or cause to
be exercised or carried out the rights, duties and obligations of the Owner
Trustee hereunder and under the other Operative Agreements, or (iii) as
expressly provided in written instructions from the Trustor given pursuant to
Section 3.03 or 3.04 hereof; provided, that nothing in this Section 3.02 shall
limit in any manner the obligations of the Owner Trustee hereunder.
Section 3.03. Notice of Default. In the event that a Responsible
Officer in the Corporate Trust Department of the Owner Trustee shall have
actual knowledge of a Default or an Event of Default, or an Indenture Default
or an Indenture Event of Default, the Owner Trustee shall give or cause to be
given to the Trustor and the Indenture Trustee prompt telephone or facsimile
notice, followed by prompt confirmation thereof by certified mail, postage
prepaid (in any event within two Business Days of the discovery thereof), in
accordance with Article 14 of the Participation Agreement, of such Default,
Event of Default, Indenture Default or Indenture Event of Default. Subject to
the terms of Section 3.06(e) hereof and the rights of the Indenture Trustee
under the Indenture, the Owner Trustee shall take such action with respect to
such Default, Event of Default, Indenture Default or Indenture Event of
Default as shall be specified in written instructions from the Trustor;
provided that the Owner Trustee shall have no duty to take any (and shall take
no) action whatsoever in the absence of written instructions from the Trustor.
For all purposes of this Agreement and the Lease, in the absence of actual
knowledge of a Responsible Officer of the Owner Trustee, the Owner Trustee
shall not be deemed to have knowledge of a Default, Event of Default,
Indenture Default or Indenture Event of Default unless notified in writing by
the Lessee, the Trustor, the Indenture Trustee or any Certificate Holder.
Section 3.04. Action Upon Instructions. Upon the written
instructions at any time and from time to time of the Trustor, the Owner
Trustee will take or refrain from taking such action, not inconsistent with
provisions of the Indenture, as may be specified in such instructions.
Section 3.05. Certain Duties and Responsibilities of Owner Trustee.
(a)(i) The Owner Trustee undertakes to perform such duties and only such
duties as are specifically set forth herein, and with the degree of care
specified in Section 3.01 hereof, and in accordance with written instructions
given by the Trustor hereunder, and no implied duties, covenants or
obligations shall be read into this Agreement, any such instructions or the
Operative Agreements against the Owner Trustee, and the Owner Trustee agrees
that it will not manage, control, possess, use, sell, lease, dispose of or
otherwise deal with the Aircraft or any part of the Lessor's Estate except as
required by the terms of the Operative Agreements, any such instructions and as
otherwise provided herein; and
(ii) in the absence of bad faith on its part, the Owner Trustee may
conclusively rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon certificates or opinions furnished to
the Owner Trustee and conforming to the requirements of this Agreement or
the other Operative Agreements, but in the case of any such certificates or
opinions which by any provisions hereof or thereof are specifically
required to be furnished to the Owner Trustee, the Owner Trustee shall be
under a duty to examine the same to determine whether or not they conform
to the requirements of this Trust Agreement or the Operative Agreements.
(b) No provision hereof shall require SSB in its individual capacity
to expend or risk its own funds or otherwise incur any financial liability in
the performance of any of its duties hereunder, 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 or liability
is not reasonably assured to it. Notwithstanding the foregoing, SSB agrees in
its individual capacity that it will, at its own cost and expense, promptly
take such action as may be necessary to discharge duly all Lessor's Liens
attributable to it in its individual capacity and will claim no indemnity
therefor hereunder, or under the Participation Agreement or any Operative
Agreement.
(c) Whether or not therein expressly so provided, every provision of
this Agreement relating to the conduct or affecting the liability of or
affording protection to the Owner Trustee shall be subject to the provisions
of this Section 3.05, except that in the event of a conflict between this
Section 3.05 and Section 3.01 hereof, Section 3.01 hereof shall be controlling.
(d) The Owner Trustee will furnish to the Trustor, promptly upon
receipt thereof, duplicates or copies of all reports, notices, requests,
demands, certificates, financial statements and any other instruments
furnished to the Owner Trustee hereunder or under the other Operative
Agreements (including those furnished to the Indenture Trustee pursuant to the
terms of the Indenture) and not otherwise furnished to the Trustor.
(e) Notwithstanding anything herein to the contrary, the Owner Trustee
shall not be authorized and shall have no power to "vary the investment" of the
Trustor within the meaning of Treasury Regulations Section 301.7701-4(c)(1),
it being understood that the Owner Trustee shall have the power and authority
to fulfill its obligations under Section 2.06 hereof and Article 23 of the
Lease.
Section 3.06. Certain Rights of Owner Trustee. Except as otherwise
provided in Section 3.05 hereof:
(a) in the absence of bad faith on its part, the Owner Trustee may
rely and shall be protected in acting or refraining from acting upon any
resolution, certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order or other paper or document reasonably
believed by it to be genuine and to have been signed or presented by the
proper party or parties;
(b) any request, direction or authorization by the Trustor or any
other party to any other Operative Agreement shall be sufficiently
evidenced by a request, direction or authorization in writing, delivered to
the Owner Trustee, and signed in the name of such party by any of the
Chairman of the Board, the President, any Vice President, the Treasurer or
Assistant Treasurer or the Secretary or Assistant Secretary or other duly
authorized officer of such party; and any resolution of the Board of
Directors or committee thereof of such party shall be sufficiently
evidenced by a copy of such resolution certified by the Secretary or an
Assistant Secretary of such party, to have been duly adopted and to be in
full force and effect on the date of such certification, and delivered to
the Owner Trustee;
(c) whenever in the administration of this Agreement the Owner Trustee
shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder or under any of the
other Operative Agreements, the Owner Trustee (unless other evidence be
herein or therein specifically prescribed), absent actual knowledge of a
Responsible Officer of the Owner Trustee to the contrary, may rely in good
faith upon a certificate in writing, delivered to the Owner Trustee and
signed by any of the Chairman of the Board, the President, any Vice
President, the Treasurer or Assistant Treasurer or the Secretary or
Assistant Secretary of the Lessee, the Trustor, or the Indenture Trustee
and notice of such need for such proof or establishment shall be delivered
to the Trustor, who may advise the Owner Trustee in respect of such matter
and the Owner Trustee shall act in conformity with such advice;
(d) the Owner Trustee may exercise its powers and perform its duties
by or through such attorneys, agents and servants as it shall appoint with
due care, and it shall be entitled to rely upon the advice of counsel
reasonably selected by it with due care and shall be protected by the
advice of such counsel in anything done or omitted to be done in accordance
with such advice;
(e) the Owner Trustee shall not be under any obligation to take any
action under this Agreement or under any of the other Operative Agreements
at the request or direction of the Trustor unless the Persons making such
request or direction shall have offered to the Owner Trustee reasonable
security or indemnity against the costs, expenses and liabilities which
might be incurred by it in compliance with such request or direction; nor
shall the Owner Trustee be required to take any action deemed to impose on
the Owner Trustee any obligation to take any action, if the Owner Trustee
shall have been advised by its counsel that such action is unlawful or is
contrary to the terms of this Agreement or the other Operative Agreements;
(f) the Owner Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order or
other paper or document unless a Responsible Officer of the Owner Trustee
has actual knowledge that the facts or matters stated therein are false or
inaccurate, but the Owner Trustee in its discretion may make such further
inquiry or investigation into such facts or matters as it may see fit, and,
if the Owner Trustee shall determine to make such further inquiry or
investigation, it shall be entitled, to the same extent permitted to the
Lessor under the Lease, to examine the books and records of the Lessee to
reasonably determine whether the Lessee is in compliance with the terms and
conditions of the Lease and to examine the Aircraft, Airframe, Engines or
any Part thereof personally or by agent or attorney; and
(g) without limiting the generality of Section 3.05 hereof, except as
otherwise provided in written instructions given to the Owner Trustee by the
Trustor or as otherwise provided in the Indenture or the Participation
Agreement, the Owner Trustee shall not have any duty (i) to see to any
recording or filing of the Lease or of this Agreement or any financing
statement or other notice or document relating thereto or contemplated
under the Operative Agreements or to see to the maintenance of any such
recording or filing (other than FAA reporting requirements contained in 14
C.F.R. Sections 47.45 and 47.51), (ii) to see to any insurance on the
Aircraft or any part thereof or to effect or maintain any such insurance,
whether or not the Lessee shall be in default with respect thereto, other
than to forward to the Trustor and (to the extent provided in the
Indenture) the Indenture Trustee copies of all certificates, reports and
other written information which it receives from the Lessee pursuant to the
Lease, (iii) to see to the payment or discharge of any tax, assessment or
other governmental charges or any Lien (except any Lessor's Lien
attributable to it in its individual capacity) owing with respect to, or
assessed or levied against any part of the Lessor's Estate, (iv) to confirm
or verify any financial statements or reports of the Lessee, or (v) to
inspect the Aircraft at any time or ascertain or inquire as to the
performance or observance of any of the Lessee's covenants under the Lease.
Section 3.07. No Representations or Warranties as to Certain
Matters. NEITHER THE OWNER TRUSTEE NOR SSB MAKES OR SHALL BE DEEMED TO HAVE
MADE (a) ANY REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, AS TO THE TITLE,
AIRWORTHINESS, VALUE, CONDITION, WORKMANSHIP, DESIGN, COMPLIANCE WITH
SPECIFICATIONS, CONSTRUCTION, OPERATION, MERCHANTABILITY OR FITNESS FOR USE
FOR A PARTICULAR PURPOSE OF THE AIRCRAFT, AS TO THE ABSENCE OF LATENT OR OTHER
DEFECTS, WHETHER OR NOT DISCOVERABLE, AS TO THE ABSENCE OF ANY INFRINGEMENT OF
ANY PATENT, TRADEMARK OR COPYRIGHT, AS TO THE ABSENCE OF OBLIGATIONS BASED ON
STRICT LIABILITY IN TORT, OR ANY OTHER REPRESENTATION OR WARRANTY WHATSOEVER,
EXPRESS OR IMPLIED, WITH RESPECT TO THE AIRCRAFT OR ANY PART THEREOF, except
that SSB represents and warrants that on the Delivery Date the Owner Trustee
shall have received whatever right, title and interests in, to and under the
Aircraft that were conveyed to it by AVSA and SSB represents, warrants and
covenants that at all times on and after the Delivery Date the Aircraft shall
be free of all Lessor's Liens attributable to it, and that the Owner Trustee
shall comply with the last sentence of Section 3.05(b) hereof, or (b) any
representation or warranty as to the validity, legality or enforceability of
this Agreement or any other Operative Agreement to which the Owner Trustee is
a party, or any other document or instrument, or as to the correctness of any
statement contained in any thereof, except to the extent that any such
representation, warranty or statement is expressly made herein or therein as a
representation or warranty by the Owner Trustee or SSB and except that SSB
hereby represents and warrants that this Agreement has been, and (assuming the
due authorization, execution and delivery of this Agreement by the Trustor)
the other Operative Agreements to which the Owner Trustee is a party have been
(or at the time of execution and delivery of any such instrument by the Owner
Trustee hereunder or pursuant to the terms of the Participation Agreement that
such an instrument will be) duly executed and delivered by one of its officers
who is or will be, as the case may be, duly authorized to execute and deliver
such instruments on behalf of the Owner Trustee and that this Agreement has
been duly authorized, executed and delivered by SSB and (assuming due
authorization, execution and delivery of this Trust Agreement by the Trustor)
constitutes the legal, valid and binding obligation of SSB enforceable against
it in accordance with its terms, except as such enforceability may be limited
by bankruptcy, insolvency, reorganization, moratorium or other similar laws
affecting the rights of creditors generally and by general principles of
equity.
Section 3.08. Status of Moneys Received. All moneys received by the
Owner Trustee under or pursuant to any provision of this Agreement or any
Operative Agreement shall constitute trust funds for the purpose for which
they were paid or are held, but need not be segregated in any manner from any
other moneys except to the extent required by law and may be deposited by the
Owner Trustee under such conditions as may be prescribed or permitted by law
for trust funds, or may be invested in direct obligations of the United States.
Section 3.09. Self-Dealing. The Owner Trustee in its individual
capacity, or any corporation in or with which the Owner Trustee may be
interested or affiliated, or any officer or director of any such corporation,
may have normal commercial relations, and otherwise deal, in the ordinary
course of business, with the Lessee or any other corporation having relations
with the Lessee to the full extent permitted by law.
Section 3.10. Definition of a Responsible Officer. For purposes of
this Trust Agreement only, "Responsible Officer" when used with respect to the
Owner Trustee means the Chairman or the Vice-Chairman of the Board of
Directors, the Chairman or Vice-Chairman of the Executive Committee of the
Board of Directors, the President, any Vice President (whether or not
designated by a number or a word or words added before or after the title
"Vice President"), the Secretary, any Assistant Secretary, or any other
officer in the Corporate Trust Department of SSB customarily performing
functions similar to those performed by any of the above designated officers.
Section 3.11. Resignation or Removal of Owner Trustee. The Owner
Trustee or any successor thereof (a) shall resign if required to do so
pursuant to Section 7.02(b) of the Participation Agreement and (b) may resign
at any time without cause by giving at least 60 days' prior written notice to
the Trustor and the Indenture Trustee, such resignation in each case to be
effective only upon the appointment of a successor trustee and the acceptance
of such appointment by such successor. In addition, the Trustor may at any
time remove the Owner Trustee without cause by an instrument in writing
delivered to the Owner Trustee and the Indenture Trustee, such removal to be
effective only upon the appointment by the Trustor of a successor Owner
Trustee and the acceptance of such appointment by such successor. Upon the
giving of notice of resignation or removal of the Owner Trustee, the Trustor
may appoint a successor Owner Trustee by an instrument signed by the Trustor.
If the Trustor shall not have so appointed a successor Owner Trustee within 30
days after such resignation or removal, the Owner Trustee, the Indenture
Trustee or the Trustor may apply to any court of competent jurisdiction to
appoint a successor Owner Trustee to act until such time, if any, as a
successor or successors shall have been appointed by the Trustor as above
provided. Any successor Owner Trustee so appointed by a court shall be
superseded by any successor Owner Trustee subsequently appointed by the
Trustor.
The appointment of any successor Owner Trustee shall be subject to the
conditions set forth in Section 11.01 of the Participation Agreement.
Section 3.12. Estate and Rights of Successor Owner Trustee. Any
successor Owner Trustee, however appointed, shall execute and deliver to the
predecessor Owner Trustee, with a copy to the Trustor and the Indenture
Trustee, an instrument accepting such appointment, in form and substance
acceptable to the predecessor Owner Trustee and the Trustor and thereupon each
successor Owner Trustee, without further act, shall become vested with all the
estates, properties, rights, powers, duties and trust of the predecessor Owner
Trustee in the trust hereunder with like effect as if originally named as an
Owner Trustee herein, but nevertheless upon the written request of such
successor Owner Trustee, such predecessor Owner Trustee shall execute and
deliver an instrument transferring to such successor Owner Trustee, upon the
trust herein expressed, all estates, properties, rights, powers, duties,
property or moneys then held by such predecessor Owner Trustee upon the trust
herein expressed. Upon any such transfer by a predecessor Owner Trustee, such
predecessor Owner Trustee shall provide the successor Owner Trustee and
Trustor an accounting of the Lessor's Estate and the trust hereunder.
Upon the appointment of any successor Owner Trustee hereunder, the
predecessor Owner Trustee will use its best efforts to cause registration of
the Aircraft included in the Lessor's Estate to be transferred upon the
records of the Aeronautics Authority or other registry where the Aircraft may
then be registered into the name of the successor Owner Trustee and shall
otherwise use its best efforts to comply, or assist the successor Owner
Trustee in complying, with the provisions of Section 11.01 of the
Participation Agreement.
Section 3.13. Merger or Consolidation of SSB. Any corporation into
which SSB in its individual capacity may be merged or with which it may be
consolidated, or any corporation resulting from any merger or consolidation to
which SSB shall be a party, or any corporation to which substantially all the
business of the Owner Trustee in its individual capacity may be transferred,
shall, subject to Section 11.01 of the Participation Agreement, be the Owner
Trustee under this Agreement without further act; provided, that such
corporation shall not also be the Indenture Trustee.
Section 3.14. Co-Trustees. At any time, if the Owner Trustee or the
Trustor shall deem it necessary or prudent or desirable in order to conform to
legal requirements of any jurisdiction in which any part of the Lessor's
Estate may at the time be located, the Owner Trustee by an instrument in
writing signed by it, shall appoint one or more Persons approved by the
Trustor to act as co-trustee, or co-trustees, jointly with the Owner Trustee,
or separate trustee or separate trustees (except insofar as local law makes it
necessary or prudent or desirable for any such co-trustee or separate trustee
to act alone), of all or any part of the Lessor's Estate, and to vest in such
Person or Persons, in such capacity, such title to the Lessor's Estate or any
part thereof, and such rights, powers, duties, trusts or obligations as the
Trustor may consider necessary or prudent or desirable. The Owner Trustee
shall not be liable for any act or omission of any co-trustee or separate
trustee appointed under this Section 3.14. No appointment of, or action by,
any co-trustee or separate trustee appointed under this Section 3.14 will
relieve the Owner Trustee of any of its obligations under any Operative
Agreement or otherwise affect any of the terms of the Indenture or adversely
affect the interests of the Indenture Trustee or the Certificate Holders in
the Trust Indenture Estate.
Any co-trustee or separate trustee may, at any time by an instrument
in writing, constitute the Owner Trustee its or his attorney-in-fact and agent
with full power and authority to do all acts and things and to exercise all
discretion on its or his behalf and in its or his name subject to the
conditions of this Agreement.
Every additional trustee hereunder shall be a Citizen of the United
States and, to the extent permitted by law, be appointed and act, and the
Owner Trustee and its successors shall act, subject to the following
provisions and conditions:
(A) all powers, duties, obligations and rights conferred upon the
Owner Trustee in respect of the custody, control and management of monies,
the Aircraft or documents authorized to be delivered hereunder or under the
Participation Agreement shall be exercised solely by the Owner Trustee;
(B) all other rights, powers, duties and obligations conferred or
imposed upon the Owner Trustee shall be conferred or imposed upon and
exercised or performed by the Owner Trustee and such additional trustee
jointly, except to the extent that under any law of any jurisdiction in
which any particular act or acts are to be performed (including the holding
of title to the Lessor's Estate) the Owner Trustee shall be incompetent or
unqualified to perform such act or acts, in which event such rights,
powers, duties and obligations shall be exercised and performed by such
additional trustee;
(C) no power given to, or which is provided hereby may be exercised
by, any such additional trustee, except jointly with, or with the consent
in writing of, the Owner Trustee;
(D) no trustee hereunder shall be personally liable by reason of any
act or omission of any other trustee hereunder except as otherwise provided
hereunder; and
(E) the Trustor, at any time, by an instrument in writing may remove
any such additional trustee.
Section 3.15. Interpretation of Agreements. In the event that the
Owner Trustee is unsure as to the application of any provision of this
Agreement or any other Operative Agreement or any other agreement relating to
the transactions contemplated by the Operative Agreements or such provision is
ambiguous as to its application, or is, or appears to be, in conflict with any
other applicable provision, or in the event that this Agreement or any other
Operative Agreement permits any determination by the Owner Trustee or is
silent or incomplete as to the course of action which the Owner Trustee is
required to take with respect to a particular set of facts, the Owner Trustee
shall request in writing sent in accordance with Article 14 of the
Participation Agreement instructions of the Trustor and, to the extent that
the Owner Trustee acts in good faith in accordance with any instructions
received from the Trustor, shall not be liable to any Person; provided, that
in the event that no response is made to the Owner Trustee by the Trustor
within 25 Business Days after such request, the Owner Trustee shall not be
liable to any Person for acts taken by the Owner Trustee in good faith in what
it deems to be the best interests of the Trustor or for any failure to act in
any situation described above in this Section 3.15. The provisions of this
Section 3.15 shall not be applicable to the Owner Trustee's obligations set
forth in the last sentence of Section 3.01 hereof.
Section 3.16. Not Acting in Individual Capacity. In carrying out
the trust hereby created, the Owner Trustee will act solely as trustee
hereunder and not in its individual capacity except as expressly provided
herein or in the other Operative Agreements to which it is a party; and all
Persons, other than the Trustor as provided in this Agreement, having any
claim against the Owner Trustee by reason of the transactions contemplated
hereby shall look only to the Lessor's Estate for payment or satisfaction
thereof, except to the extent provided in the last sentence of Section 3.01
hereof.
Section 3.17. Books and Records; Tax Returns. The Owner Trustee
shall be responsible for the keeping of all appropriate books and records
relating to its receipt and disbursement of all moneys under this Agreement or
any Operative Agreement and shall, upon the request of the Trustor or its duly
authorized representative, make available such books and records at its
principal trust office during normal business hours for inspection and
copying. The Owner Trustee agrees to sign and file all returns with respect
to Taxes that the Trustor prepares (or causes to be prepared) and directs the
Owner Trustee to sign and file. The Owner Trustee, upon request, will furnish
the Trustor with all such information as may be reasonably required or
necessary from the Owner Trustee in connection with the preparation of such tax
returns and in connection with any other filing or audit and related litigation
obligations. At the request of the Trustor, and at the expense of the Lessee,
the Owner Trustee shall file an application with the Internal Revenue Service
for a taxpayer identification number with respect to the trust created
hereunder and prepare or cause to be prepared and sign and/or file the Federal
fiduciary tax return with respect to Taxes due and payable by the Trust in
connection with the transactions contemplated hereby or by any other Operative
Agreement; provided, however, that the Owner Trustee shall send a completed
copy of each such return to the Trustor not more than 60 nor less than 30 days
prior to the due date of such return; provided that the Owner Trustee shall
have timely received all necessary information to complete and deliver to the
Trustor such return. The Trustor, upon request, will furnish the Owner Trustee
with all such information as may be required from the Trustor in connection
with the preparation of such income tax returns. The Owner Trustee shall keep
copies of all returns delivered to or filed by it.
ARTICLE 4
TERMINATION OF TRUST
Section 4.01. Termination. This Agreement and the trust created and
provided for hereby shall cease and be terminated in any one of the following
events, whichever shall first occur:
(a) The sale or other final disposition by the Owner Trustee of all
of its interest in all property constituting or included in the Lessor's
Estate and, if the Indenture shall then be in effect, the sale or other
disposition by the Indenture Trustee of all of its interest in all property
constituting or included in the Lessor's Estate, and the final disposition
by the Owner Trustee and, if the Indenture shall then be in effect, the
Indenture Trustee, of all moneys or other property or proceeds constituting
part of the Lessor's Estate in accordance with the terms hereof; or
(b) 21 years less one day from the death of the last survivor of the
descendants of Queen Victoria of England living on the date of this
Agreement; provided, however, that if the Trust shall be or become valid
under applicable law for a period subsequent to 21 years less one day from
the death of the last survivor of the descendants of Queen Victoria of
England living on the date of this Agreement or, without limiting the
generality of the foregoing, if legislation shall become effective
providing for the validity or permitting the effective grant of such trust
for a period, in gross, exceeding the period for which such trust is
hereinabove stated to extend and be valid, then such trust shall not
terminate as provided in the first part of this sentence but shall extend
to and continue in effect until, but only if such non-termination and
extension shall then be valid under applicable law, such time as the same
shall, under applicable law, cease to be valid.
Section 4.02. Termination at Option of the Trustor. Notwithstanding
Section 4.01 hereof, this Agreement and the trust created hereby shall
terminate and the Trust Estate shall be distributed to the Trustor, and this
Agreement shall be of no further force and effect, upon the election of the
Trustor by notice to the Owner Trustee, if such notice shall be accompanied by
the written agreement (in form and substance satisfactory to the Owner
Trustee) of the Trustor assuming all the obligations of the Owner Trustee
under or contemplated by the Operative Agreements or incurred by it as trustee
hereunder and releasing the Owner Trustee therefrom; provided, however, that
such notice may be given only after the time the Lien of the Indenture is
discharged under Section 14.01 of the Indenture and the Lease has terminated
unless the Trustor shall have received the prior written consent of the
Indenture Trustee to any such termination in which case such notice may be
given while the Lien of the Indenture is outstanding.
Section 4.03. Distribution of Lessor's Estate upon Termination.
Upon any termination of this trust pursuant to the provisions of Section 4.01
hereof, the Owner Trustee shall convey the Lessor's Estate (subject to all
obligations, if any, of the Owner Trustee then existing under the Operative
Agreements to which the Owner Trustee is a party) to such purchaser or
purchasers or the Trustor, as the case may be, and for such amount and on such
terms as shall be specified in written instructions from the Trustor delivered
to the Owner Trustee prior to the date of termination; provided, that (i) if
at the time of any termination the Lease remains in force and effect, then the
Lessor's Estate shall be sold as a unit (and not in parcels) and subject to
the Lease, and (ii) in the event such written instructions are not delivered
to the Owner Trustee on or before the date of termination, the Owner Trustee
shall transfer title to the Lessor's Estate to the Trustor. Upon making such
transfer or sale and accounting for all funds which have come into its hands,
the Owner Trustee shall be entitled to receipt of any sums due and owing to
the Owner Trustee for expenses incurred pursuant hereto as set forth in
Section 2.05 hereof.
ARTICLE 5
[RESERVED]
ARTICLE 6
MISCELLANEOUS
Section 6.01. Indemnification. The Trustor shall assume liability
for, and shall indemnify, protect, save and keep harmless SSB from and against
any and all liabilities, obligations, losses, damages, penalties, taxes,
claims, actions, proceedings, suits, costs (including reasonable attorneys'
fees), expenses and disbursements of any kind and nature whatsoever ("Trust
Claims") imposed on, incurred by or asserted against the Owner Trustee or SSB,
as the case may be (but only to the extent the Owner Trustee or SSB, as the
case may be, is not indemnified by the Lessee for such Trust Claims under any
Operative Document or is not indemnified by any other Person for such Trust
Claims, within a reasonable time after demand therefor), in any way relating
to or arising out of (X) the Trust Estate or any of the properties included
therein and (Y) the administration of the Trust Estate or the action of
inaction of the Owner Trustee hereunder or under the Operative Documents
including, but not limited to, claims under any Environmental Laws; provided,
however, that (a) the Trustor shall not be required to indemnify the Owner
Trustee or SSB in the case of (i) willful misconduct, negligence with respect
to handling of funds, gross negligence or bad faith of the Owner Trustee or
SSB, as the case may be, (ii) the Owner Trustee's or SSB's failure to use
ordinary care in the handling of monies constituting part of the Trust Estate,
(iii) Taxes of the Owner Trustee or SSB, as the case may be, that are based on
or measured by the compensation received by SSB for acting as Owner Trustee
hereunder, and (iv) items excluded from indemnification by the Lessee as, as
to the extent, provided in Section 8.01(b)(i-xii) and 9.01(b)(i-ix) of the
Participation Agreement, and (b) the Trustor shall not be required to
indemnify with respect to Trust Claims resulting from a breach of the
covenants by SSB in Article 3 hereof or Trust Claims resulting because any
representation or warranty of the Owner Trustee or SSB, as the case may be,
contained in any Operative Document proves to be untrue or inaccurate or the
failure by the Owner Trustee or SSB, as the case may be, to perform or observe
any agreements, covenants or conditions to be performed or observed by it in
any of the Operative Documents. None of the foregoing exclusions shall limit
the obligation of the Trustor to indemnify SSB (but SSB shall still be
required to seek indemnification from the Lessee before making a claim against
the Trustor hereunder unless such exclusion is otherwise limited under
Sections 8.01(b) and 9.01(b) of the Participation Agreement), (i) for actions
taken in accordance with written instructions received from the Trustor, and
(ii) to the extent such exclusions are attributable to acts or omissions of
the Trustor. The payor of any indemnity under this Section 6.01 shall be
subrogated to any right of the person indemnified in respect of the matter as
to which such indemnity was paid. The indemnities contained in this Section
6.01 shall survive the termination of this Agreement.
Section 6.02. Limitations on the Trustor's Liability. The Trustor
shall not have any liability for the performance of this Agreement except as
expressly set forth herein.
Section 6.03. Fees; Compensation. Except as provided in Section
3.06(e) or 6.01 hereof, the Owner Trustee agrees that it shall have no right
against the Trustor or the Trust Estate for any fee as compensation for its
services hereunder.
Section 6.04. Supplements and Amendments. At any time and from time
to time, only upon the written request of the Trustor (a) SSB and the Trustor
shall execute a supplement hereto for the purpose of adding provisions to, or
changing or eliminating provisions of, this Agreement as specified in such
request and (b) the Owner Trustee shall, subject to the provisions of Section
8.01 of the Indenture, enter into or consent to such written amendment or
modification of or supplement to any of the Operative Agreements as the
Trustor and any other necessary parties may agree to in writing and as may be
specified in such request, or execute and deliver such written waiver of the
terms of any of the Operative Agreements as may be agreed to in writing by the
Trustor and as may be specified in such request; provided, that (i) the Owner
Trustee shall not execute any such supplement, amendment, waiver or
modification without the prior written consent of the Trustor, (ii) if in the
reasonable opinion of the Owner Trustee any document required to be executed
by it pursuant to this Section adversely affects any right or duty of, or
immunity or indemnity in favor of, the Owner Trustee under this Agreement or
any other Operative Agreement, the Owner Trustee may in its discretion
decline to execute such document and (iii) any amendment or supplement to this
Agreement shall comply with the provisions of Section 7.13 of the
Participation Agreement. It shall not be necessary that any request pursuant
to this Section specify the particular form of the proposed document to be
executed pursuant to such request, but it shall be sufficient if such request
shall indicate the substance thereof. Promptly after the execution by SSB or
the Owner Trustee of any document pursuant to this Section, the Owner Trustee
shall mail a conformed copy thereof to the Trustor, the Indenture Trustee and
the Lessee, but the failure of the Owner Trustee to mail such conformed copies
shall not impair or affect the validity of such document.
Section 6.05. Nature of Title of Trustor. The Trustor shall not
have any legal title to any part of the Lessor's Estate. No transfer, by
operation of law or otherwise, of the right, title and interest of the Trustor
in and to the Lessor's Estate or the trust hereunder shall operate to
terminate this Agreement or Lessor's Estate.
Section 6.06. Power of Owner Trustee to Convey. Any assignment,
sale, transfer or other conveyance by the Owner Trustee of the interest of the
Owner Trustee in the Operative Agreements or in the Aircraft or any part
thereof pursuant to and in compliance with the terms of this Agreement or the
Operative Agreements shall bind the Trustor and shall be effective to transfer
or convey all right, title and interest of the Owner Trustee in and to the
Operative Agreements or the right, title and interest of the Owner Trustee and
the Trustor in and to the Aircraft or such part thereof. No purchaser or
other grantee shall be required to inquire as to the authorization, necessity,
expediency or regularity of such assignment, sale, transfer or conveyance or
as to the application of any sale or other proceeds with respect thereto by
the Owner Trustee.
Section 6.07. Notices. All notices, demands, declarations and other
communications required by this Agreement shall be in writing and shall be
deemed received (a) if given by telecopier, when transmitted and the
appropriate telephonic confirmation received if transmitted on a Business Day
and during normal business hours of the recipient, and otherwise on the next
Business Day following transmission, (b) if given by certified mail, return
receipt requested, postage prepaid five Business Days after being deposited in
the United States mail, and (c) if given by FedEx service or other means, when
received or personally delivered, addressed:
If to the Owner Trustee: State Street Bank and Trust Company of Connecticut,
National Association
c/o State Street Bank and Trust Company
Two International Place
4th Floor
Boston, Massachusetts 02110
Attention: Corporate Trust Department
Telephone: (617) 664-5526
Facsimile: (617) 664-5371
If to the Trustor: PMCC Leasing Corporation
200 First Stamford Place
Stamford, Connecticut 06902
Attention: Vice President Leasing
with a copy to Director, Portfolio Administration
Telephone: (914) 335-5000
Facsimile: (914) 335-8301
If to the Indenture
Trustee: First Security Bank, National Association
79 South Main Street
Salt Lake City, Utah 84111
Attention: Corporate Trust Department
Telephone: (801) 246-5630
Facsimile: (801) 246-5053
or as to any of the foregoing parties at such other address as such party may
designate by notice duly given in accordance with this Section to the other
parties.
Section 6.08. Situs of Trust; Applicable Law; Severability. THIS
AGREEMENT SHALL IN ALL RESPECTS BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE INTERNAL LAWS OF THE STATE OF CONNECTICUT, INCLUDING ALL MATTERS OF
VALIDITY, CONSTRUCTION AND PERFORMANCE. If any provision of this Agreement
shall be invalid or unenforceable, the remaining provisions hereof shall
continue to be fully effective; provided, that such remaining provisions do
not increase the obligations or liabilities of the Owner Trustee or the
Trustor.
Section 6.09. Successors and Assigns. This Agreement shall be
binding upon and shall inure to the benefit of, and shall be enforceable by,
the parties hereto and their respective successors and permitted assigns,
including any successive holder of the Beneficial Interest, but only to the
extent the Beneficial Interest has been transferred or assigned in accordance
with the limitations of Section 7.03(d) of the Participation Agreement.
Section 6.10. Headings and Table of Contents. The headings of the
Articles and Sections of this Agreement and the Table of Contents are inserted
for convenience only and shall not affect the meaning or construction of any
of the provisions hereof.
Section 6.11. Identification of Trust. This trust may for
convenience be referred to as the "Federal Express Corporation Trust No.
N671FE."
Section 6.12. Counterparts. This instrument may be executed in any
number of counterparts or upon separate signature pages bound together in
several counterparts, each of which when so executed shall be deemed to be an
original, and such counterparts together shall constitute and be one and the
same instrument.
Section 6.13. Trustor Interest. The Trustor has only a beneficial
interest in any specific property of this Trust. No creditor of the Trustor
shall have any right to obtain possession of, or otherwise exercise legal or
equitable remedies with respect to, the property of this trust (as opposed to
the Trustor's beneficial interest in this trust).
Section 6.14. Performance by the Trustor. Any obligation of the
Owner Trustee hereunder or under any Operative Agreement or other document
contemplated herein may be performed by the Trustor and any such performance
shall not be construed as a revocation of the trust created hereby.
IN WITNESS WHEREOF, SSB and the Trustor have caused this Agreement to
be duly executed all as of the date first above written.
PMCC LEASING CORPORATION
By:
-------------------------------------------------
Name: Joan D. Woodroof
Title: Manager, Structured Finance
STATE STREET BANK AND TRUST COMPANY OF
CONNECTICUT, NATIONAL ASSOCIATION
By:
-------------------------------------------------
Name: Paul D. Allen
Title: Vice President
SCHEDULE I
DEFINITIONS
(FEDERAL EXPRESS CORPORATION TRUST NO. N671FE)
GENERAL PROVISIONS
The following terms shall have the following meanings for all
purposes of the Operative Agreements (other than the Pass Through Agreement,
the Series Supplements, the Intercreditor Agreement and the Liquidity
Facilities) referred to below, unless otherwise defined in an Operative
Agreement or the context thereof shall otherwise require. In the case of any
conflict between the provisions of this Schedule and the provisions of any
Operative Agreement, the provisions of such Operative Agreement shall control
the construction of such Operative Agreement.
Unless the context otherwise requires, (i) references to agreements
shall be deemed to mean and include such agreements as amended and
supplemented from time to time, and (ii) references to parties to agreements
shall be deemed to include the successors and permitted assigns of such
parties.
DEFINED TERMS:
Additional Insured. As defined in Article 13 of the Lease.
Aeronautics Authority. As appropriate, the Federal Aviation
Administration and/or the Administrator of the Federal Aviation
Administration, any successor to the former United States Civil Aeronautics
Board, or any Person, governmental department, bureau, commission or agency
located in the United States succeeding to the functions of any of the
foregoing.
Affidavits. The affidavits of citizenship of the Owner Trustee and
the Owner Participant.
Affiliate. With respect to any Person, any other Person directly or
indirectly controlling, controlled by or under common control with such
Person. For the purposes of this definition, "control" (including "controlled
by" and "under common control with") shall mean the power, directly or
indirectly, to direct or cause the direction of the management and policies of
such Person whether through the ownership of voting securities or by contract
or otherwise. In no event shall the Owner Trustee or the Lessor be deemed an
Affiliate of the Owner Participant.
After-Tax Basis. A basis such that any payment to be received by a
Person shall be supplemented by a further payment to such Person so that the
sum of the two payments, after deduction of all Taxes resulting from the
receipt or accrual of such payments, shall be equal to the payment to be
received. In the case of amounts payable to the Lessor, the Owner Participant,
or any corporate Affiliate of the Owner Participant, it shall be presumed that
such Person is at all times subject to Federal income tax at the maximum
marginal rate generally applicable to corporations from time to time and
actual state, local and foreign income taxes.
Air Carrier. Any U.S. Air Carrier and any "foreign air carrier" (as
defined in the Transportation Code) as to which there is in force a permit
granted under Section 41302 of the Transportation Code.
Airbus Guaranty. The Guaranty to be dated the Delivery Date executed
by the Manufacturer and guaranteeing AVSA's Warranty Bill of Sale.
Aircraft. The Airframe to be sold by AVSA to the Owner Trustee as
provided in the Participation Agreement and to be leased under the Lease (or
any permitted substitute airframe thereunder) together with two Engines
(whether either is an initial Engine or a Replacement Engine) whether or not
any of such initial or Replacement Engines may from time to time be installed
on such Airframe or may be installed on any other airframe or on any other
aircraft, including any aircraft substituted pursuant to Section 11.03 of the
Lease. Prior to delivery of the initial Lease Supplement, references in the
Operative Agreements (including Section 3.05 of the Participation Agreement)
to Aircraft shall mean the Airbus A300F4-605R airframe bearing FAA
Registration Number N671FE and Manufacturer's serial number 778, together with
two General Electric CF6-80C2-A5F engines.
Airframe. The Airbus A300F4-605R aircraft (excluding the Engines or
engines from time to time installed thereon) to be leased by the Lessor to the
Lessee pursuant to the Lease and the initial Lease Supplement and having the
United States FAA Registration Number initially and manufacturer's serial
number specified in the initial Lease Supplement, including (i) all Parts in
respect thereof and (ii) any Replacement Airframe which may be substituted
pursuant to Section 11.03 of the Lease.
Ancillary Agreement. Any written agreement of the Lessee to which the
Lessor is a party or to which the Lessor has consented in writing entered into
on or prior to the Delivery Date or any date thereafter in connection with the
transactions contemplated by the Operative Agreements, as such agreement may
be amended and supplemented from time to time with the consent of the Lessor
and delivered to the Owner Trustee, the Indenture Trustee, the Pass Through
Trustee, the Subordination Agent, each Liquidity Provider and the Owner
Participant.
Ancillary Agreement I. The Ancillary Agreement I (Federal Express
Corporation Trust No. N671FE), dated the Certificate Closing Date, among the
Lessee, the Owner Trustee, not in its individual capacity, but solely as Owner
Trustee, the Owner Participant and the Indenture Trustee not in its individual
capacity, but solely as Indenture Trustee, as originally executed or as
amended, modified or supplemented with the consent of all the parties thereto.
Ancillary Agreement II. The Ancillary Agreement II (Federal Express
Corporation Trust No. N671FE), dated the Certificate Closing Date, among the
Lessee, the Owner Trustee, not in its individual capacity, but solely as Owner
Trustee, the Owner Participant and the Indenture Trustee not in its individual
capacity, but solely as Indenture Trustee, as originally executed or as
amended, modified or supplemented with the consent of all the parties thereto.
Application. The application for registration of the Aircraft with
the FAA in the name of the Owner Trustee.
Appraisal. The report prepared by BK Associates, Inc. and to be
delivered to the Owner Participant (with an abbreviated report to the Lessee)
on the Delivery Date pursuant to Section 4.02(h) of the Participation
Agreement.
Assignment and Assumption Agreement. Any agreement delivered in
compliance with Section 7.03(d) of the Participation Agreement.
Average Life Date. For any Certificate, the date which follows the
prepayment date by a period equal to the Remaining Weighted Average Life of
such Certificate.
AVSA. AVSA S.A.R.L., a societe a responsabilite limitee, organized
and existing under the laws of France.
AVSA Consent and Agreement. The Consent and Agreement dated as of
May 1, 1997, executed by AVSA.
AVSA's FAA Bill of Sale. The bill of sale for the Airframe on AC
Form 8050-2, or such other form as may be approved by the Aeronautics
Authority, executed by AVSA in favor of the Owner Trustee and to be dated the
Delivery Date.
AVSA's Warranty Bill of Sale. The full warranty bill of sale
covering the Aircraft (and specifically referring to each Engine) executed by
AVSA as owner of the Aircraft in favor of the Owner Trustee and to be dated
the Delivery Date.
Bankruptcy Code. The Federal Bankruptcy Code of 1978, as amended, and
any successor thereto.
Bankruptcy Default. An event specified in Section 16.01(e), (f) or
(g) of the Lease which either does or, with the giving of notice or lapse of
time or both, would constitute an Event of Default.
Basic Rent. The aggregate periodic rent payable for the Aircraft
throughout the Basic Term pursuant to Section 3.02 of the Lease, adjusted
pursuant to Article 3 of the Lease.
Basic Term. The period commencing at the beginning of the day on the
Delivery Date and ending at the end of the day on September 20, 2020, or such
earlier date on which the Lease shall be terminated as provided therein.
Beneficial Interest. The interest of the Owner Participant under the
Trust Agreement.
Business Day. Any day on which commercial banks are not authorized or
required to close in New York, New York, Memphis, Tennessee and the city in the
United States in which the office or agency is maintained by the Pass Through
Trustee for the payment of the Pass Through Certificates, and after the Lien
of the Indenture is discharged, Boston, Massachusetts.
Certificate Closing Date. The date of the closing with respect to the
purchase of Certificates by the Pass Through Trustee contemplated by Section
2.01(b) of the Participation Agreement.
Certificates. The Equipment Trust Certificates (Federal Express
Corporation Trust No. N671FE), issued by the Owner Trustee pursuant to the
Indenture and any certificate issued in exchange therefor or replacement
thereof pursuant to the Indenture.
Change in Tax Law. Any change to the Code or the Treasury regulations
promulgated thereunder or the publication of any revenue ruling, revenue
procedure or any informational release by the Internal Revenue Service or the
Department of Treasury either of which would change or would allow a change in
the tax assumptions or structure upon which the lease economics were based,
provided that the Owner Participant or the Lessee has notified the other party
of such change in writing prior to the Delivery Date.
Change in Tax Rate. Any amendment, modification, deletion, addition,
or change to the Code which is enacted into law after the Delivery Date which
changes the highest marginal statutory rate of Federal income tax applicable
to the Owner Participant (other than a change which is in the nature of a
minimum tax).
Citizen of the United States. A citizen of the United States as
defined in Section 40102(a)(15) of the Transportation Code, or any analogous
part of any successor or substituted legislation or regulation at the time in
effect.
Class A Liquidity Provider. Has the meaning specified in Section
1.01 of the Intercreditor Agreement.
Class B Liquidity Provider. Has the meaning specified in Section
1.01 of the Intercreditor Agreement.
Closings. The closing with respect to the acquisition of the Pass
Through Certificates by the Underwriters and the closing with respect to the
acquisition of Certificates by the Pass Through Trustee.
Code. Except as otherwise provided, the Internal Revenue Code of
1986, as amended from time to time.
Collateral Account. The deposit account established and maintained
pursuant to Section 2.13 of the Indenture.
Collateral Account Control Agreement. The Collateral Account Control
Agreement dated as of May 1, 1997 among State Street Bank and Trust Company,
the Indenture Trustee and the Owner Trustee.
Commitment. The amount of the Owner Participant's participation in
the Purchase Price required to be made available or paid as provided in
Section 3.02 of the Participation Agreement.
Consent and Agreement. The Consent and Agreement dated as of May 1,
1997 executed by the Manufacturer.
Consent and Guaranty. The Consent and Guaranty of the Manufacturer
attached to the Purchase Agreement.
Corporate Trust Administration. The Corporate Trust Administration
office of the Owner Trustee located at 750 Main Street, Hartford, Connecticut
06103, Attention: Corporation Trust Administration, or such other office at
which the Owner Trustee's corporate trust business shall be administered which
the Owner Trustee shall have specified by notice in writing to the Lessee, the
Owner Participant and the Indenture Trustee.
Corporate Trust Department. The Corporate Trust Department office of
the Indenture Trustee located at 79 South Main Street, Salt Lake City, Utah
84111, Attention: Corporate Trust Department, or such other office at which
the Indenture Trustee's corporate trust business shall be administered which
the Indenture Trustee shall have specified by notice in writing to the Lessee,
the Owner Participant and the Owner Trustee.
CRAF Program. Has the meaning specified in Section 7.01(f) of the
Lease.
Cut-Off Date. September 18, 1997.
Debt Portion. The amount specified as such on Schedule IV to the
Participation Agreement.
Debt Rate. The weighted average (based on Outstanding principal
amount) rate of interest on the Certificates issued pursuant to the Indenture.
Default. Any event or condition which, with the lapse of time or the
giving of notice, or both, would constitute an Event of Default.
Delivery Date. The date on which the Aircraft is delivered and sold
by AVSA to the Lessor and leased by the Lessor to the Lessee under the Lease,
which date shall also be the date of the initial Lease Supplement.
Delivery Notice. Notice of the Aircraft's Delivery Date, given by
the Lessee as provided in Section 3.01 of the Participation Agreement and
including any notice with respect to a postponed Delivery Date given by the
Lessee pursuant to Section 3.05(c) of the Participation Agreement.
Eligible Deposit Account. Either (a) a segregated account with an
Eligible Institution or (b) a segregated trust account with the corporate
trust department of a depository institution with corporate trust powers
organized under the laws of the United States or any state thereof, or the
District of Columbia, and whose deposits are insured by the Federal Deposit
Insurance Corporation, provided that such institution also has a combined
capital and surplus of at least $100,000,000 and a rating of A or better from
the Thomson Bank Watch.
Eligible Institution. A depository institution organized under the
laws of the United States or any one of the states thereof, or the District of
Columbia, or any domestic branch of a foreign bank, which in any such case at
all times (a) has either (x) a long-term unsecured debt rating of at least Aa2
by Moody's or (y) a short-term certificate of deposit rating of P-1 by
Moody's, (b) has either (x) a long-term unsecured debt rating of a least AA by
S&P or (y) a short-term certificate of deposit rating of A-1+ by S&P and (c)
is a member of the Federal Deposit Insurance Corporation.
Engine. Each of the two General Electric CF6-80C2-A5F engines listed
by its manufacturer's serial number in the initial Lease Supplement and leased
pursuant to the Lease, whether or not from time to time installed on the
Airframe or installed on any other airframe or on any other aircraft, and any
Replacement Engine which may from time to time be substituted for an Engine
pursuant to Section 7.02(a)(vii), 10.02(c), 10.03, 11.03, 11.04 or 12.02 of
the Lease, together with all Parts related thereto. Except as otherwise
provided, at such time as a Replacement Engine shall be so substituted and the
Engine for which the substitution is made shall be released from the Lien of
the Indenture, such replaced Engine shall cease to be an "Engine" under the
Lease. The term "Engines" means, as of any date of determination, both Engines
then leased to the Lessee pursuant to the Lease.
Engine Consent. The Engine Consent dated as of May 1, 1997, executed
by the Engine Manufacturer.
Engine Manufacturer. General Electric Company, a New York
corporation.
Engine Warranty Assignment. The Engine Warranty Assignment (Federal
Express Corporation Trust No. N671FE), dated as of May 1, 1997 between the
Lessor and the Lessee.
ERISA. The Employee Retirement Income Security Act of 1974, as
amended.
ERISA Plan. As defined in Section 8.01(b)(xii) of the Participation
Agreement.
Estimated Expense Amount. Has the meaning specified in Section
10.01(a) of the Participation Agreement.
Event of Default. Each of the events specified in Article 16 of the
Lease.
Event of Loss. Any of the following events with respect to the
Aircraft, the Airframe or any Engine: (i) loss of such property or its use (A)
for a period in excess of 60 days due to theft or disappearance or such longer
period, not to exceed 180 days from the end of such initial 60-day period, if
and so long as the location of such property is known to the Lessee and the
Lessee is diligently pursuing recovery of such property, or to the end of the
Term, if less (unless such theft or disappearance constitutes an Event of Loss
pursuant to (i)(B) or (ii) hereof) or (B) for a period in excess of 60 days
due to the destruction, damage beyond economic repair or rendition of such
property permanently unfit for normal use by Lessee for any reason whatsoever;
(ii) any damage to such property which results in an insurance settlement with
respect to such property on the basis of a total loss, or constructive or
compromised total loss; (iii) (1) condemnation, confiscation or seizure of, or
requisition of title to such property by the Government, any foreign
government or purported government or any agency or instrumentality thereof,
or (2) condemnation, confiscation, or seizure of, or requisition or taking of,
use of such property (A) by a foreign government or instrumentality or agency
of any such foreign government, for a period in excess of 180 days (or such
shorter period ending on the earlier of the expiration of the Term or on the
date on which an insurance settlement with respect to such property on the
basis of a total loss or constructive or compromised total loss shall occur)
or (B) by the Government for a period extending beyond the Term; and (iv) as a
result of any law, rule, regulation, order or other action by the Aeronautics
Authority or other governmental body having jurisdiction, the use of the
Aircraft or Airframe in the normal course of air transportation of cargo shall
have been prohibited by virtue of a condition affecting all Airbus A300-600
series aircraft equipped with engines of the same make and model as the
Engines for a period of twelve (12) consecutive months, unless the Lessee,
prior to the expiration of such twelve (12) month period, shall be diligently
carrying forward all steps which are necessary or desirable to permit the
normal use of the Aircraft or Airframe or, in any event, if such use of the
Aircraft or the Airframe shall have been prohibited for a period of
twenty-four (24) consecutive months or until the end of the Term, if earlier.
The date of such Event of Loss shall be (s) the 61st day or the 241st day, as
the case may be, following loss of such property or its use due to theft or
disappearance (or the end of the Term or the Lessee's abandonment of diligent
efforts to recover such property, if earlier); (t) the 61st day following the
date of any destruction, damage beyond economic repair or rendition of such
property permanently unfit for normal use; (u) the date of any insurance
settlement on the basis of a total loss or constructive or compromised total
loss; (v) the date of any condemnation, confiscation, seizure or requisition
of title of such property; (w) the 181st day following condemnation,
confiscation, seizure or requisition for use of such property by a foreign
government referred to in clause (iii)(2)(A) above (or the end of the Term or
the date of any insurance settlement described therein, if earlier than such
181st day); (x) the last day of the Term in the case of requisition for use of
such property by the Government; (y) the last day of the 12 month or 24 month
period, referred to in clause (iv) above (or if earlier, the end of the Term
or abandonment of the Lessee's efforts to restore the normal use of the
Aircraft). An Event of Loss with respect to the Aircraft shall be deemed to
have occurred if any Event of Loss occurs with respect to the Airframe.
Excepted Payments. Collectively, (i) indemnity, expense,
reimbursement or other payments paid or payable by the Lessee in respect of
the Owner Participant, the Owner Trustee in its individual capacity or any of
their respective successors, permitted assigns, directors, officers,
employees, servants and agents or Affiliates, pursuant to the Participation
Agreement or any other Operative Agreement or any indemnity hereafter granted
to the Owner Participant or the Owner Trustee in its individual capacity
pursuant to the Lease or the Participation Agreement, (ii) proceeds of public
liability insurance (or government indemnities in lieu thereof) in respect of
the Aircraft payable as a result of insurance claims paid for the benefit of,
or losses suffered by, the Owner Trustee or the Indenture Trustee in their
respective individual capacities or by the Owner Participant, or their
respective successors, permitted assigns or Affiliates, (iii) proceeds of
insurance maintained with respect to the Aircraft by the Owner Participant
(whether directly or through the Owner Trustee) maintained in accordance with
Section 13.05 of the Lease but not required under Article 13 of the Lease,
(iv) payments of Supplemental Rent by the Lessee in respect of any amounts
payable under the Tax Indemnity Agreement, (v) any purchase price paid to the
Owner Participant for its interest in the Trust Estate pursuant to Section
7.03(d) of the Participation Agreement, (vi) subject to Section 3.05 of the
Lease, payments constituting increases in Basic Rent attributable to payments
arising pursuant to Section 5 of the Tax Indemnity Agreement, (vii) any
payments in respect of interest to the extent attributable to payments
referred to in clauses (i) through (vi) above and (viii) any right to demand,
collect or otherwise receive and enforce the payment of any amount described
in clauses (i) through (v) and (vii) above (except with respect to interest
attributable to payments referred to in clause (vi) above).
Expense; Expenses. Have the meaning specified in Section 9.01(a) of
the Participation Agreement.
Fair Market Renewal Term. A term with respect to which the Lessee has
exercised its option to renew the Lease pursuant to the second paragraph of
Section 4.01(a) thereof and with respect to which the conditions set forth in
such Section 4.01(a) are met.
Fair Market Rental. An amount determined on the basis of, and equal
in amount to, the rental which would be obtained in an arm's-length
transaction between an informed and willing lessee and an informed and willing
lessor unaffiliated with such lessee, neither being under any compulsion to
lease. In such determination, it shall be assumed that the Aircraft is in the
condition required under the Lease in the case of return of the Aircraft
pursuant to Article 12 of the Lease and Fair Market Rental shall be determined
in accordance with the provisions of Section 4.03 of the Lease.
Fair Market Value. An amount determined on the basis of, and equal in
amount to, the value which would be obtained in an arm's-length transaction
between an informed and willing purchaser under no compulsion to buy and an
informed and willing seller unaffiliated with such purchaser and under no
compulsion to sell, assuming the Aircraft (or other property) is unencumbered
by the Lease. In such determination, except for purposes of Section 17.01 of
the Lease (when it shall be determined based upon the actual condition and
location of the Aircraft), it shall be assumed that the Aircraft is in the
condition required under the Lease in the case of return of the Aircraft
pursuant to Article 12 of the Lease and Fair Market Value shall be determined
in accordance with the provisions of Section 4.03 of the Lease.
Federal Aviation Administration; FAA. The United States Federal
Aviation Administration and any successor agency or agencies thereto.
Final Drawing. Has the meaning specified in Section 1.01 of the
Intercreditor Agreement.
Fixed Renewal Rent. Semi-annual payments of rent during the Fixed
Renewal Term equal to the lesser of (i) Fair Market Rental as determined as of
the commencement of such Fixed Renewal Term and (ii) 50% of the average actual
semi-annual Basic Rent payable during the Basic Term.
Fixed Renewal Term. The term with respect to which the Lessee has
exercised its option to renew the Lease pursuant to the first paragraph of
Section 4.01(a) thereof and with respect to which the conditions set forth in
such Section 4.01(a) are met.
FPO Price. Has the meaning set forth in Section 4.02(a)(F) of the
Lease.
French Pledge Agreement. The French Pledge Agreement dated as of May
1, 1997 between the Owner Trustee and the Indenture Trustee.
FSB. First Security Bank, National Association, a national banking
association.
Government. The United States of America or an agency or
instrumentality thereof the obligations of which bear the full faith and
credit of the United States of America.
GTA. The General Terms Agreement dated as of July 3, 1991 between the
Engine Manufacturer and the Lessee related to the purchase by the Lessee of the
Engines as originally executed or as modified, amended or supplemented in
accordance with the terms thereof, but only insofar as the General Terms
Agreement relates to the Engines, to the extent assigned to the Owner Trustee
pursuant to the Engine Warranty Assignment.
Holder of a Certificate; Certificate Holder; Holder. As of any
particular time, the Person in whose name a Certificate shall be registered
(but not including the holder of any Pass Through Certificate).
Indemnitee. Each of SSB, in its individual capacity and as Owner
Trustee and Lessor, the Subordination Agent, in its individual capacity and in
its capacity as Subordination Agent, each Liquidity Provider, the Owner
Participant, the Indenture Trustee, in its individual capacity and as trustee,
the Owner Participant Guarantor and any successor (including any trustee which
may succeed to the Lessor's interest under the Lease), Affiliate, assign,
officer, director, employee, agent and servant of any of the foregoing, the
Lessor's Estate and the Trust Indenture Estate. Neither the Pass Through
Trustee nor any holder of a Pass Through Certificate shall be deemed to be an
Indemnitee.
Indenture. The Trust Indenture and Security Agreement (Federal
Express Corporation Trust No. N671FE), dated as of May 1, 1997, between the
Lessor and the Indenture Trustee, as supplemented by the Indenture and
Security Agreement Supplement.
Indenture and Security Agreement Supplement. The Indenture and
Security Agreement Supplement No. 1 (Federal Express Corporation Trust No.
N671FE) to be dated the Delivery Date, substantially in the form of Exhibit A
to the Indenture.
Indenture Default. Any event or condition which, with the lapse of
time or the giving of notice, or both, would constitute an Indenture Event of
Default.
Indenture Documents. Has the meaning specified in the Granting
Clause of the Indenture.
Indenture Event of Default. Each of the events specified in Section
7.01 of the Indenture.
Indenture Trustee. First Security Bank, National Association, a
national banking association, not in its individual capacity but solely as
Indenture Trustee under the Indenture.
Indenture Trustee's Liens. Any Lien against, on or with respect to
the Aircraft, the Lessor's Estate or the Trust Indenture Estate or any part
thereof resulting from (i) claims against the Indenture Trustee not related to
the administration of the Trust Indenture Estate or any transactions pursuant
to the Indenture or any document included in the Trust Indenture Estate, (ii)
any act or omission of the Indenture Trustee which is not related to the
transactions contemplated by the Operative Agreements or is in violation of
any of the terms of the Operative Agreements or (iii) Taxes imposed against
the Indenture Trustee in its individual capacity in respect of which the Lessee
has not indemnified (and is not obligated to indemnify) the Indenture Trustee
in such capacity.
Independent Appraisal. An appraisal conducted pursuant to Section
4.03 of the Lease.
Independent Investment Banker. An independent investment banking
institution of national standing appointed by the Lessee that is independent
in fact, does not have any direct financial interests, or any material
indirect financial interest, in the Lessee or any Affiliate of the Lessee, and
is not connected with the Lessee or any Affiliate of the Lessee, as an
officer, employee, promoter, underwriter, trustee, partner, director or Person
performing similar functions; provided, that if the Indenture Trustee shall
not have received written notice of such an appointment at least 10 days prior
to the Prepayment Date, "Independent Investment Banker" shall mean such an
institution appointed by the Indenture Trustee.
Intercreditor Agreement. The Intercreditor Agreement dated as of May
1, 1997, among the Pass Through Trustee, the Class A Liquidity Provider, the
Class B Liquidity Provider and the Subordination Agent.
Interest Drawing. Has the meaning specified in Section 1.01 of the
Intercreditor Agreement.
Invoice. The invoice for the Aircraft given by AVSA to the Lessor.
Lease. The Lease Agreement (Federal Express Corporation Trust No.
N671FE) dated as of May 1, 1997, entered into by the Lessor and the Lessee
concurrently with the execution and delivery of the Indenture, including,
without limitation, supplementation by one or more Lease Supplements entered
into pursuant to the applicable provisions of the Lease.
Lease Supplement. The Lease Supplement No. 1 (Federal Express
Corporation Trust No. N671FE) to be dated the Delivery Date, substantially in
the form of Exhibit A to the Lease.
Lease Term. The period commencing on the Delivery Date and ending at
the end of the Basic Term.
Lessee. Federal Express Corporation, a Delaware corporation.
Lessee Documents. Has the meaning set forth in Section 6.01(b) of the
Participation Agreement.
Lessor. State Street Bank and Trust Company of Connecticut, National
Association, a national banking association, not in its individual capacity
but solely as Owner Trustee under the Trust Agreement.
Lessor's Estate. All estate, right, title and interest of the Owner
Trustee in and to the Collateral Account, the Liquid Collateral, the Aircraft,
the Lease, any Lease Supplement, the Participation Agreement, AVSA's FAA Bill
of Sale, AVSA's Warranty Bill of Sale, the Airbus Guaranty, the Purchase
Agreement, the Purchase Agreement Assignment, the Consent and Agreement, the
AVSA Consent and Agreement, the Consent and Guaranty (to the extent assigned
by the Purchase Agreement Assignment), any Ancillary Agreement, the GTA, the
Engine Warranty Assignment, the Engine Consent, any warranty with respect to
the Airframe and the Engines, all amounts of Basic Rent and Supplemental Rent,
including without limitation, insurance proceeds (other than insurance
proceeds payable to or for the benefit of the Owner Trustee in its individual
capacity or the Owner Participant) and requisition, indemnity or other
payments of any kind for or with respect to the Aircraft (except amounts owing
to the Owner Participant, to the Indenture Trustee, to the Owner Trustee in its
individual capacity, or to any of their respective directors, officers,
employees and agents pursuant to Articles 8 and 9 of the Participation
Agreement), and all other property of the Owner Trustee purportedly subjected
to the Lien of the Indenture by the Granting Clause thereof; provided that in
no event shall "Lessor's Estate" include any Excepted Payment.
Lessor's Liens. Liens against, on or with respect to the Aircraft,
the Lessor's Estate or the Trust Indenture Estate or any part thereof, title
thereto or any interest therein arising as a result of (i) claims against the
Lessor, in its individual capacity or as Owner Trustee, or the Owner
Participant, in each case not related to the transactions contemplated by the
Operative Agreements, (ii) acts or omissions of the Lessor in its individual
capacity or as Owner Trustee, and, in the case of the Lessor in its individual
capacity, arising from its gross negligence or willful misconduct or expressly
prohibited under the Operative Agreements and any act or omission of the Owner
Participant which is in violation of any of the terms of the Operative
Agreements, (iii) Taxes or Expenses imposed against the Lessor, in its
individual capacity or as Owner Trustee, Owner Participant, Lessor's Estate or
the trust created by the Trust Agreement which are not required to be
indemnified against by the Lessee pursuant to the Participation Agreement by
reason of Section 8.01(b) or 9.01(b) thereof and which are not required to be
indemnified against by the Lessee pursuant to the Tax Indemnity Agreement, or
(iv) claims against the Lessor or the Owner Participant arising from the
voluntary transfer by the Lessor or the Owner Participant of its interests in
the Aircraft other than a transfer of the Aircraft pursuant to Section 4.02(a)
or Article 10 or 11 of the Lease and other than a transfer pursuant to the
exercise of the remedies set forth in Article 17 of the Lease.
Lien. Any mortgage, pledge, lien, charge, encumbrance, lease or
security interest or other similar interest.
Liquid Collateral. All amounts and securities deposited from time to
time in the Collateral Account and all the products, investments, earnings and
proceeds of the foregoing, including, but not limited to, all proceeds of the
investment or conversion thereof, voluntary or involuntary, into cash,
Specified Investments or other property, all rights to payment of any and
every kind, and other forms of obligations, and instruments and other property
which at any time constitute all or part or are included in the proceeds of
any of the foregoing.
Liquidity Facility. Has the meaning specified in Section 1.01 of the
Intercreditor Agreement.
Liquidity Provider. Has the meaning specified in Section 1.01 of the
Intercreditor Agreement.
Losses. Has the meaning specified in Section 17.02(a) of the
Participation Agreement.
Loss Payee. Has the meaning specified in Section 13.02(b)(i) of the
Lease.
Majority in Interest of Certificate Holders. As of a particular date
of determination, the Holders of more than 50% of the aggregate unpaid
principal amount of all Certificates outstanding as of such date excluding for
purposes of this definition any Certificates held by (i) the Owner Trustee or
the Owner Participant or any interests of the Owner Participant unless all
Certificates then outstanding shall be held by the Owner Participant, (ii) the
Lessee or (iii) any Affiliate of any thereof.
Make-Whole Premium. An amount determined as of the day before the
applicable Prepayment Date (or date of purchase, as the case may be) which an
Independent Investment Banker determines to be equal to the excess, if any, of
(i) the present value of the remaining scheduled payments of such principal
amount or portion thereof and interest thereon (excluding interest accrued
from the immediately preceding Payment Date to such Prepayment Date or date of
purchase, as the case may be) to the Maturity of such Certificate in
accordance with generally accepted financial practices assuming a 360-day year
consisting of twelve 30-day months at a discount rate equal to the Treasury
Yield, all as determined by the Independent Investment Banker over (ii) the
outstanding principal amount of such Certificate plus accrued interest.
Manufacturer. Airbus Industrie G.I.E., a groupement d'interet
economique formed under the laws of France.
Maturity. With respect to any Certificate, the date on which the
final principal amount of such Certificate is scheduled to be due and payable.
Moody's. Moody's Investors Service, Inc.
Net Present Value of Rents. The net present value, as of the
Delivery Date, of Basic Rent set forth in Schedule II of the Lease, discounted
at a rate equal to the Debt Rate per annum compounded semi-annually.
Non-U.S. Person. Any Person other than a U.S. Person.
Obsolete Parts. Parts which are severable from the Aircraft in
accordance with clauses (ii) and (iii) of the proviso to Section 9.02(b) of
the Lease and the Lessee in good faith determines to be obsolete or no longer
suitable or appropriate for use on the Airframe or any Engine.
Officer's Certificate. When delivered pursuant to the Indenture, a
certificate signed by a Responsible Officer of the Lessee or the Owner
Trustee, as the case may be, and delivered to the Indenture Trustee. Each
such certificate shall include the statements provided for in Section 15.07 of
the Indenture.
Operative Agreements. The Participation Agreement, the Trust
Agreement, AVSA's FAA Bill of Sale, AVSA's Warranty Bill of Sale, the Airbus
Guaranty, the Purchase Agreement, the Purchase Agreement Assignment, the GTA,
the Engine Warranty Assignment, the French Pledge Agreement, the Lease, the
Lease Supplement, the Owner Participant Guaranty, the Owner Trustee Guaranty,
if any, any Ancillary Agreement entered into by or with the written consent of
the Indenture Trustee, which by its terms is an Operative Agreement, the
Certificates outstanding at the time of reference, the Indenture, the
Indenture and Security Agreement Supplement, the Consent and Agreement, the
AVSA Consent and Agreement, the Consent and Guaranty (to the extent assigned
by the Purchase Agreement Assignment), the Engine Consent, the Tax Indemnity
Agreement, each Liquidity Facility, the Intercreditor Agreement, the
Collateral Account Control Agreement and any Assignment and Assumption
Agreement.
Opinion of Counsel. When delivered pursuant to the Indenture, a
written opinion of legal counsel, who in the case of counsel (a) for the
Lessee may be (i) an attorney employed by the Lessee who is generally
empowered to deliver such written opinions, (ii) Davis Polk & Wardwell or a
successor firm or (iii) other counsel designated by the Lessee and reasonably
satisfactory to the Indenture Trustee and (b) for the Owner Trustee or the
Indenture Trustee, an attorney selected by such Person and, in the case of the
Owner Trustee, reasonably satisfactory to the Indenture Trustee.
Outstanding. When used with respect to Certificates, as of the date
of determination and subject to the provisions of Section 10.04 of the
Indenture, all Certificates theretofore executed and delivered under the
Indenture, with the exception of the following:
(i) Certificates theretofore cancelled by the Indenture Trustee or
delivered to the Indenture Trustee for cancellation pursuant to
Section 2.08 of the Indenture or otherwise;
(ii) Certificates for which prepayment money in the necessary amount
has been theretofore deposited with the Indenture Trustee in trust
for the Holders of such Certificates pursuant to Section 14.01 of the
Indenture; provided, that if such Certificates are to be prepaid,
notice of such prepayment has been duly given pursuant to the
Indenture or provision therefor satisfactory to the Indenture Trustee
has been made; and
(iii) Certificates in exchange for or in lieu of which other
Certificates have been executed and delivered pursuant to Article II
of the Indenture.
Owner Participant. The trustor originally named in the Trust
Agreement and any successor thereto, and any Person to which the Owner
Participant transfers, in accordance with the Trust Agreement, its right,
title and interest in and to the Operative Agreements and the Lessor's Estate.
Owner Participant Guarantor. Philip Morris Capital Corporation, a
Delaware corporation, and any other provider of an Owner Participant Guaranty.
Owner Participant Guaranty. The Owner Participant Guaranty dated the
Certificate Closing Date by the Owner Participant Guarantor in favor of the
Lessee, the Owner Trustee, the Indenture Trustee and the Pass Through Trustee,
and any guaranty delivered in compliance with Section 7.03(d) of the
Participation Agreement.
Owner Trustee. SSB, not in its individual capacity except as
otherwise expressly stated, but solely as Owner Trustee under the Trust
Agreement.
Owner Trustee Guarantor. The provider of an Owner Trustee Guaranty.
Owner Trustee Guaranty. Any guaranty delivered in compliance with
Section 11.01(b)(ii) of the Participation Agreement.
Owner's Economic Return. The Owner Participant's anticipated net
after-tax book yield and aggregate after-tax cash during the Basic Term
utilizing the multiple investment sinking fund method of analysis, computed on
the basis of the same methodology and assumptions as were utilized by the
Owner Participant in determining Basic Rent, Stipulated Loss Value and
Termination Value percentages, as the case may be, as such assumptions may be
adjusted for events which have been the basis of adjustments to Rent pursuant
to Section 3.04 of the Lease.
Participation Agreement. The Participation Agreement (Federal Express
Corporation Trust No. N671FE), dated as of May 1, 1997, among the Lessee, the
Owner Trustee not in its individual capacity except as otherwise expressly
provided therein, but solely as owner trustee, the Owner Participant, the
Indenture Trustee not in its individual capacity except as otherwise expressly
provided therein, but solely as indenture trustee, the Pass Through Trustee
not in its individual capacity except as otherwise expressly provided therein,
but solely as pass through trustee and the Subordination Agent not in its
individual capacity except as otherwise expressly provided therein, but solely
as subordination agent.
Parts. All appliances, parts, components, instruments, appurtenances,
accessories, furnishings and other equipment of whatever nature (other than
complete Engines or engines) which may from time to time be incorporated or
installed in or attached to the Airframe or any Engine or title to which
remains vested in the Lessor pursuant to Article 8 of the Lease.
Pass Through Agreement. The Pass Through Trust Agreement dated as of
May 1, 1997 between the Lessee and the Pass Through Trustee.
Pass Through Certificates. Any of the Pass Through Certificates,
1997-1-A, the Pass Through Certificates, 1997-1-B or the Pass Through
Certificates, 1997-1-C, in each case as issued by the related Pass Through
Trust; and "Pass Through Certificates" means all of the Pass Through
Certificates issued by each of the Pass Through Trusts.
Pass Through Closing Date. The Business Day on which the sale of the
Pass Through Certificates to the Underwriters pursuant to the Underwriting
Agreement takes place.
Pass Through Trust. The Federal Express Corporation 1997-1 Pass
Through Trust Class A, Federal Express Corporation 1997-1 Pass Through Trust
Class B and Federal Express Corporation 1997-1 Pass Through Trust Class C, in
each case formed pursuant to the related Series Supplement in accordance with
the Pass Through Agreement; and "Pass Through Trusts" means all of such Pass
Through Trusts.
Pass Through Trustee. First Security Bank, National Association, a
national banking association, in its capacity as Pass Through Trustee under
the Pass Through Agreement and each Pass Through Trust.
Past Due Rate. In respect of (A) any amount payable to the Owner
Participant or the Owner Trustee a rate per annum during the period from and
including the due date to but excluding the date on which such amount is paid
in full equal to 2% plus the Debt Rate and (B) any principal of or interest on
any Certificate or any other amount payable under the Indenture, any
Certificate or any other Operative Agreement that is not paid when due
(whether at Maturity, by acceleration, by optional or mandatory prepayment or
otherwise) to any Holder, the Indenture Trustee or the Pass Through Trustee, a
rate per annum during the period from and including the due date to but
excluding the date on which such amount is paid in full equal to (i) in the
case of any such amount payable to the Holder of any Certificate, 2% plus the
interest rate applicable to such Certificate and (ii) in the case of any other
such amount, 2% plus the Debt Rate.
Payment Date. Each January 15 and July 15 commencing on July 15,
1997.
Payment Default. Any event specified in Section 16.01(a) or 16.01(b)
of the Lease which with the giving of notice or lapse of time or both would
constitute an Event of Default.
Permitted Investments. Those investments enumerated in Section
23.01(a) (i), (ii), (iii) and (iv) of the Lease.
Person. Any individual, sole proprietorship, partnership, joint
venture, joint stock company, trust, unincorporated organization, association,
corporation, institution, entity or government (federal, state, local,
foreign or any agency, instrumentality, division or body thereof).
Preliminary Notice. Has the meaning specified in Section 4.01(a) of
the Lease.
Premium Termination Date. With respect to the Series A Certificates,
December 27, 2011, with respect to the Series B Certificates, February 5, 2010
and with respect to the Series C Certificates, March 22, 2007.
Prepayment Date. Has the meaning specified in Section 6.02(b) of the
Indenture.
Prepayment Price. Has the meaning specified in Section 6.02(b) of the
Indenture.
Principal Amount. With respect to a Certificate means the stated
original principal amount of such Certificate and, with respect to all
Certificates, means the aggregate stated original principal amounts of all
Certificates.
Property. Any right or interest in or to property of any kind
whatsoever, whether real, personal or mixed and whether tangible or intangible.
Proposed Termination Date. The proposed date of termination of the
Lease as specified by the Lessee in its notice given pursuant to Section 10.01
thereof.
Purchase Agreement. The Airbus A300-600R Freighter Purchase Agreement,
dated as of July 3, 1991 between AVSA and the Lessee, including all exhibits,
appendices and letter agreements attached thereto as originally executed or as
modified, amended or supplemented in accordance with the terms thereof, but
only to the extent that the foregoing relates to the Aircraft and to the
extent assigned pursuant to the Purchase Agreement Assignment.
Purchase Agreement Assignment. The Purchase Agreement Assignment
(Federal Express Corporation Trust No. N671FE), dated as of May 1, 1997 between
the Lessor and the Lessee.
Purchase Price. Has the meaning specified in Ancillary Agreement II.
Record Date. With respect to Payment Dates under the Indenture
(except a date for payment of defaulted interest), December 31 for January 15
Payment Dates and June 30 for July 15 Payment Dates, whether or not such date
is a Business Day.
Recourse Amount. Has the meaning specified in Section 17.10 of the
Participation Agreement.
Refinancing. A non-recourse loan to the Lessor arranged pursuant to
Section 15.01 of the Participation Agreement.
Register. Has the meaning set forth in Section 3.02 of the Indenture.
Registrar. Has the meaning set forth in Section 3.02 of the
Indenture.
Regulation D. Regulation D of the Board of Governors of the Federal
Reserve System (or any successor), as the same may be modified and
supplemented and in effect from time to time.
Related Indentures. Collectively, the Trust Indenture and Security
Agreement for each of Federal Express Corporation Trust Nos. N670FE, N672FE,
N673FE, N674FE, N583FE and N584FE, each dated as of May 1, 1997, between the
Owner Trustee and the Indenture Trustee, the Trust Indenture and Security
Agreement for Federal Express Corporation Trust No. N581FE, dated as of May 1,
1997, between Wilmington Trust Company, as owner trustee and the Indenture
Trustee, and the Trust Indenture and Security Agreement for Federal Express
Corporation Trust No. N587FE, dated as of December 1, 1996, as amended and
restated as of May 1, 1997, between Wilmington Trust Company, as owner trustee
and the Indenture Trustee.
Remaining Weighted Average Life. On a given date with respect to any
Certificate the number of days equal to the quotient obtained by dividing (i)
the sum of each of the products obtained by multiplying (a) the amount of each
then remaining scheduled payment of principal of such Certificate by (b) the
number of days from and including such prepayment date to but excluding the
dates on which each such payment of principal is scheduled to be made; by (ii)
the then outstanding principal amount of such Certificate.
Renewal Rent. The amount payable by the Lessee as rent in accordance
with Section 4.01 of the Lease during any Renewal Term.
Renewal Term. One or more terms with respect to which the Lessee has
exercised its option to renew the Lease pursuant to Section 4.01(a) thereof.
Rent. All payments due from the Lessee under the Lease as Basic Rent,
Renewal Rent and Supplemental Rent, collectively.
Rent Payment Date. September 20, 2020 and each January 15 and July 15
commencing on July 15, 1997.
Reoptimization Date. Has the meaning specified in Section 15.02(a)
of the Participation Agreement.
Replacement Aircraft. Any aircraft substituted for the Aircraft
pursuant to Section 11.03(a) of the Lease.
Replacement Airframe. Has the meaning set forth in Section 11.03 of
the Lease.
Replacement Engine. A General Electric CF6-80C2-A5F engine (or an
engine of the same or another manufacturer) of equal or greater value,
airworthiness, remaining useful life and utility as the Engine being replaced,
together with all Parts relating to such engine; provided, however, that if
such replacement engine is not a General Electric CF6-80C2-A5F engine, such
replacement engine must then be commonly used in the commercial aviation
industry on Airbus A300-600 airframes.
Responsible Officer. With respect to the Owner Trustee (except for
purposes of the Trust Agreement in which case the definition of Responsible
Officer set forth in Section 3.10 of the Trust Agreement is applicable) or the
Indenture Trustee, any officer in its Corporate Trust Administration, as the
case may be, designated by such Person to perform obligations under the
Operative Agreements, and with respect to any other party, any corporate
officer or (except in the case of the Owner Participant) other employee of a
party who, in the normal performance of his or her operational
responsibilities, with respect to the subject matter of any covenant,
agreement or obligation of such party pursuant to any Operative Agreement,
would have responsibility for and knowledge of such matter and the
requirements of any Operative Agreement with respect thereto.
S&P. Standard & Poor's Ratings Group.
Scheduled Delivery Date. The Delivery Date specified in the Delivery
Notice pursuant to Section 3.01 of the Participation Agreement.
SEC. The Securities and Exchange Commission of the United States and
any successor agencies or authorities.
Secured Obligations. Has the meaning specified in the Granting
Clause of the Indenture.
Securities Act. The Securities Act of 1933, as amended.
Series "A" or "Series A Certificates". Certificates issued and
designated as "Series A" under the Indenture, in the Principal Amount and
maturities and bearing interest as specified in Exhibit B to the Indenture
under the heading "Series A".
Series "B" or "Series B Certificates". Certificates issued and
designated as "Series B" under the Indenture, in the Principal Amount and
maturities and bearing interest as specified in Exhibit B to the Indenture
under the heading "Series B".
Series "C" or "Series C Certificates". Certificates issued and
designated as "Series C" under the Indenture, in the Principal Amount and
maturities and bearing interest as specified in Exhibit B to the Indenture
under the heading "Series C".
Series Supplement or Series Supplements. The Series Supplement
1997-1-A to be executed and delivered by the Lessee and the Pass Through
Trustee, the Series Supplement 1997-1-B to be executed and delivered by the
Lessee and the Pass Through Trustee or the Series Supplement 1997-1-C to be
executed and delivered by the Lessee and the Pass Through Trustee.
Sinking Fund Redemption Date. Has the meaning specified in Section
6.06 of the Indenture.
Sinking Fund Redemption Price. Has the meaning specified in Section
6.06 of the Indenture.
Special Aviation Counsel. Daugherty, Fowler & Peregrin.
Specified Investments. Shall mean (a) direct obligations of the
United States of America or obligations fully guaranteed by the United States
of America; (b) commercial paper rated A-1/P-1 by S&P and Moody's,
respectively or, if such ratings are unavailable, rated by any nationally
recognized rating organization in the United States equal to the highest
rating assigned by such rating organization; (c) investments in negotiable
certificates of deposit, time deposits, banker's acceptances, commercial paper
or other direct obligations of, or obligations guaranteed by, commercial banks
organized under the laws of the United States or of any political subdivision
thereof (or any U.S. branch of a foreign bank) with issuer ratings of at least
B/C by Thomson Bankwatch, having maturities no later than 90 days following
the date of such investment; (d) overnight federal funds transactions with
members of the Federal Reserve System arranged by federal funds brokers; or
(e) overnight repurchase agreements with respect to the securities described
in clause (a) above entered into with an office of a bank or trust company
which is located in the United States of America or any bank or trust company
which is organized under the laws of the United States or any state thereof
and has capital, surplus and undivided profits aggregating at least $500
million.
SSB. State Street Bank and Trust Company of Connecticut, National
Association, a national banking association.
Stipulated Loss Value. As of any Stipulated Loss Value Determination
Date during the Basic Term, the amount determined by multiplying the Purchase
Price by the percentage set forth in Schedule III of the Lease under the
heading "Stipulated Loss Value Factor" opposite such date (as such Schedule
III may be adjusted from time to time as provided in Section 3.04 of the
Lease), and during any Renewal Term, the amount determined pursuant to Section
4.01(b) of the Lease. Notwithstanding any other provisions of the Lease or
the Participation Agreement or the Indenture, each Stipulated Loss Value for
the Aircraft shall be, under any circumstances and in any event, an amount,
together with so much of the arrears portion of Basic Rent due and owing
through the date of payment of Stipulated Loss Value as does not constitute an
Excepted Payment, at least sufficient to pay in full as of such date of
payment the aggregate unpaid principal amount of and accrued interest on the
Certificates outstanding on such date of payment. Subject to the immediately
preceding sentence, it is understood and agreed that the amounts set forth on
Schedule III of the Lease, for dates other than Rent Payment Dates on which
arrears Basic Rent is due, fully reflect appropriate Basic Rent accruals and
credits of unearned Basic Rent through such date and, accordingly, no further
accrual or credit shall be required through such date whenever Stipulated Loss
Value is to be calculated with reference to any such date; provided that if
amounts in respect of Stipulated Loss Value are payable under the Operative
Agreements after the Stipulated Loss Determination Date in respect of which
such Stipulated Loss Value was determined, the Lessor shall be compensated
during the period from the Stipulated Loss Determination Date to such payment
date in accordance with the provisions of the Operative Agreements.
Stipulated Loss Value Determination Date. Each date set forth on
Schedule III of the Lease.
Subordination Agent. First Security Bank, National Association, a
national banking association, not in its individual capacity but solely as
Subordination Agent.
Supplemental Rent. (a) All amounts, liabilities and obligations
which the Lessee assumes or agrees to perform or pay under the Lease or under
the Participation Agreement or Tax Indemnity Agreement or any Ancillary
Agreement or any other Operative Agreement to the Lessor, the Owner
Participant, the Indenture Trustee, the Subordination Agent, any Liquidity
Provider or others, including, without limitation, payments of Stipulated Loss
Value, FPO Price and amounts calculated by reference to Termination Value, any
amounts of Make-Whole Premium payable under the Indenture to the extent
provided in Section 3.03 of the Lease, and all amounts required to be paid by
Lessee under the agreements, covenants and indemnities contained in the Lease
or in the Participation Agreement or the Tax Indemnity Agreement or any other
Operative Agreement, but excluding Basic Rent and (b) all amounts that the
Owner Trustee is obligated to pay in accordance with clause (b) of the last
paragraph of Section 2.04 of the Indenture.
Tax. Has the meaning set forth in Section 8.01(a) of the
Participation Agreement.
Tax Indemnity Agreement. The Tax Indemnity Agreement (Federal
Express Corporation Trust No. N671FE), dated as of May 1, 1997, between the
Lessee and the Owner Participant.
Term. The Basic Term of the lease for the Aircraft under the Lease
and, if renewed pursuant to Section 4.01 of the Lease, each Renewal Term for
the Aircraft for which the Lease is renewed, or such earlier date on which the
Lease is terminated pursuant to its terms.
Termination Date. A Rent Payment Date during the Basic Term that is
on or after December 31, 2004 in the case of Article 10 of the Lease, and in
the case of (i) Section 4.02(a)(A) of the Lease, the Rent Payment Date falling
on July 15, 2015, (ii) Section 4.02(a)(D) or (E) of the Lease, a Rent
Payment Date that is on or after the seventh anniversary of the Delivery Date
and (iii) Section 4.02(a)(F) of the Lease, the last day of the Basic Term.
Termination Value. As of any Termination Date, the amount determined
by multiplying the Purchase Price by the percentage set forth in Schedule IV
of the Lease under the heading "Termination Value Factor" opposite such
Termination Date (as such Schedule IV may be adjusted from time to time as
provided in Section 3.04 of the Lease). Notwithstanding any other provisions
of the Lease, the Participation Agreement or the Indenture, each Termination
Value shall be, under any circumstances and in any event, an amount, together
with so much of the arrears portion of Basic Rent due and owing through the
date of payment of any amount calculated by reference to Termination Value as
does not constitute an Excepted Payment, at least sufficient to pay in full as
of such date of payment the aggregate unpaid principal amount of and accrued
interest on the Certificates outstanding on such date of payment. Subject to
the immediately preceding sentence, it is understood and agreed that the
amounts set forth on Schedule IV of the Lease, for dates other than Rent
Payment Dates on which arrears Basic Rent is due, fully reflect appropriate
Basic Rent accruals and credits of unearned Basic Rent through such date and,
accordingly, no further accrual or credit shall be required through such date
whenever Termination Value is to be calculated with reference to any such
date; provided that if amounts in respect of Termination Value are payable
under the Operative Agreements after the Termination Date in respect of which
such Termination Value was determined, the Lessor shall be compensated during
the period from the Termination Date to such payment date in accordance with
the provisions of the Operative Agreements.
Transaction Costs. Those costs and expenses set forth in Section
10.01(a) of the Participation Agreement.
Transportation Code. Title 49 of the United States Code, as amended
and in effect on the date of the Lease or as subsequently amended, or any
successor or substituted legislation at the time in effect and applicable, and
the regulations promulgated pursuant thereto.
Treasury Yield. At the time of determination with respect to any
Certificate, the interest rate (expressed as a semi-annual equivalent and as a
decimal and, in the case of United States Treasury bills, converted to a bond
equivalent yield) determined to be the per annum rate equal to the semi-annual
yield to maturity for United States Treasury securities maturing on the
Average Life Date on such Certificate and trading in the public securities
markets either as determined by interpolation between the most recent weekly
average yield to maturity for two series of United States Treasury securities,
trading in public securities markets, (i) one maturing as close as possible to,
but earlier than, the Average Life Date of such Certificate and (ii) the other
maturing as close as possible to, but later than, the Average Life Date of
such Certificate. In each case as published in the most recent H.15(519) or,
if a weekly average yield to maturity for United States Treasury securities
maturing on the Average Life Date of such Certificate is reported on the most
recent H.15 (519), such weekly average yield to maturity as published in such
H.15(919). "H.15(519)" means the weekly statistical release designated as
such, or any successor publication, published by the Board of Governors of the
Federal Reserve System. The date of determination of a Make-Whole Premium
will be the third Business Day prior to the applicable prepayment date and the
"most recent H.15(519)" means the H.15(519) published prior to the close of
business on the third Business Day prior to the applicable prepayment date.
Trust Agreement. The Trust Agreement (Federal Express Corporation
Trust No. N671FE), dated as of May 1, 1997, between the Owner Participant and
the Owner Trustee in its individual capacity.
Trust Estate. The Lessor's Estate.
Trust Indenture Act. The Trust Indenture Act of 1939, as amended.
Trust Indenture Estate. All estate, right, title and interest of the
Indenture Trustee in and to any of the property, rights, interests and
privileges granted to the Indenture Trustee pursuant to the Granting Clause of
the Indenture, other than Excepted Payments and any and all other rights of
the Owner Trustee or the Owner Participant expressly reserved to the Owner
Trustee or the Owner Participant pursuant to the Indenture.
Underwriters. Morgan Stanley & Co. Incorporated, First Chicago
Capital Markets, Inc., Goldman, Sachs & Co. and J.P. Morgan & Co.
Underwriting Agreement. The Underwriting Agreement dated May 22, 1997
among the Lessee and the Underwriters.
United States, U.S. or US. The United States of America.
U.S. Air Carrier. Any United States air carrier as to which there is
in force a certificate issued pursuant to Section 41102(a) or Section 41103 of
the Transportation Code, and as to which there is in force an air carrier
operating certificate issued pursuant to Chapter 447 of the Transportation
Code and Part 121 of the regulations under such Transportation Code, for
aircraft capable of carrying ten (10) or more individuals or 6,000 pounds or
more of cargo, or which may operate as an air carrier by certification or
otherwise under any successor or substitute provision thereof or in absence
thereof.
U.S. Person. A Person described in Section 7701(a)(30) of the Code.
==============================================================================
TRUST AGREEMENT
(FEDERAL EXPRESS CORPORATION TRUST NO. N672FE)
Dated as of May 1, 1997
between
PMCC LEASING CORPORATION,
Trustor
and
STATE STREET BANK AND TRUST COMPANY OF CONNECTICUT,
NATIONAL ASSOCIATION,
Owner Trustee
COVERING ONE AIRBUS A300F4-605R AIRCRAFT
SERIAL NO. 779, REGISTRATION NO. N672FE
==============================================================================
Page
TABLE OF CONTENTS
PARTIES.................................................................... 1
RECITALS................................................................... 1
ARTICLE 1
THE LESSOR'S ESTATE
Section 1.01. Authorization and Direction to Owner Trustee............. 1
Section 1.02. Declaration of Trust..................................... 2
Section 1.03. Conditions Precedent..................................... 2
ARTICLE 2
DISTRIBUTIONS
Section 2.01. Predelivery Funding; Rent, Etc........................... 2
Section 2.02. Excepted Payments........................................ 3
Section 2.03. Distributions after Release of Lien of Indenture......... 3
Section 2.04. Manner of Making Distributions........................... 4
ARTICLE 3
THE OWNER TRUSTEE
Section 3.01. Acceptance of Trust and Duties........................... 5
Section 3.02. Limitation on Authority of Owner Trustee................. 5
Section 3.03. Notice of Default........................................ 5
Section 3.04. Action Upon Instructions................................. 6
Section 3.05. Certain Duties and Responsibilities of Owner Trustee..... 6
Section 3.06. Certain Rights of Owner Trustee.......................... 7
Section 3.07. No Representations or Warranties as to Certain Matters... 9
Section 3.08. Status of Moneys Received................................ 10
Section 3.09. Self-Dealing............................................. 10
Section 3.10. Definition of a Responsible Officer...................... 10
Section 3.11. Resignation or Removal of Owner Trustee.................. 10
Section 3.12. Estate and Rights of Successor Owner Trustee............. 11
Section 3.13. Merger or Consolidation of SSB........................... 11
Section 3.14. Co-Trustees.............................................. 12
Section 3.15. Interpretation of Agreements............................. 13
Section 3.16. Not Acting in Individual Capacity........................ 13
Section 3.17. Books and Records; Tax Returns........................... 13
ARTICLE 4
TERMINATION OF TRUST
Section 4.01. Termination.............................................. 14
Section 4.02. Termination at Option of the Trustor..................... 15
Section 4.03. Distribution of Lessor's Estate upon Termination......... 15
ARTICLE 5
[RESERVED]
ARTICLE 6
MISCELLANEOUS
Section 6.01. Indemnification.......................................... 16
Section 6.02. Limitations on the Trustor's Liability................... 17
Section 6.03. Fees; Compensation....................................... 17
Section 6.04. Supplements and Amendments............................... 17
Section 6.05. Nature of Title of Trustor............................... 17
Section 6.06. Power of Owner Trustee to Convey......................... 17
Section 6.07. Notices.................................................. 18
Section 6.08. Situs of Trust; Applicable Law; Severability............. 19
Section 6.09. Successors and Assigns................................... 19
Section 6.10. Headings and Table of Contents........................... 19
Section 6.11. Identification of Trust.................................. 19
Section 6.12. Counterparts............................................. 19
Section 6.13. Trustor Interest......................................... 19
Section 6.14. Performance by the Trustor............................... 19
Schedule I Definitions
TRUST AGREEMENT
(FEDERAL EXPRESS CORPORATION TRUST NO. N672FE)
TRUST AGREEMENT (FEDERAL EXPRESS CORPORATION TRUST NO. N672FE) dated
as of May 1, 1997 (this "Agreement") between STATE STREET BANK AND TRUST
COMPANY OF CONNECTICUT, NATIONAL ASSOCIATION, a national banking association
(in its individual capacity, "SSB", and not in its individual capacity but
solely as trustee hereunder, the "Owner Trustee"), and PMCC LEASING
CORPORATION, a Delaware corporation (together with its successors and permitted
assigns, the "Trustor"). The capitalized terms used herein, unless otherwise
herein defined or the context hereof shall otherwise require, shall have the
respective meanings set forth in Schedule I attached hereto.
W I T N E S S E T H :
-------------------
WHEREAS, the Trustor desires to create a trust for the purpose of
issuing Certificates, the proceeds of which issuance shall initially be held
by the Indenture Trustee on behalf of the Owner Trustee in the Collateral
Account and released, subject to the proviso to Section 3.02(a) of the
Participation Agreement, on the Delivery Date in order to finance a portion of
the Purchase Price of the Aircraft, to acquire the Aircraft from AVSA on the
Delivery Date, to lease the Aircraft to the Lessee on the Delivery Date and to
receive the benefits provided for herein.
WHEREAS, SSB is willing to accept the trust as herein provided and to
perform its obligations hereunder in its individual capacity or as the Owner
Trustee as the case may be.
NOW THEREFORE, in consideration of the mutual covenants and agreements
contained herein, SSB and the Trustor agree as follows:
ARTICLE 1
THE LESSOR'S ESTATE
Section 1.01. Authorization and Direction to Owner Trustee. The
Trustor hereby authorizes and directs (or has authorized and directed) the
Owner Trustee, not individually but solely as the Owner Trustee hereunder:
(a) to execute and deliver as and when specified in Sections 4.01
and 4.02 of the Participation Agreement and each of the other Operative
Agreements to which the Owner Trustee is a party and to enter into and
perform the transactions contemplated thereby including, without
limitation, accepting title to, and delivery of, the Aircraft from AVSA on
the Delivery Date, and taking all appropriate action to cause the Airframe
to be registered with the Federal Aviation Administration in the name of
the Owner Trustee;
(b) to execute and deliver from time to time the Certificates in the
manner and subject to the terms and conditions provided in the
Participation Agreement and the Indenture;
(c) to execute and deliver each other document referred to in the
Operative Agreements to which the Owner Trustee is a party or which the
Owner Trustee is required to deliver pursuant to the Operative Agreements;
(d) subject to the terms of this Agreement, to perform the
obligations and duties and, upon instruction of the Trustor, exercise the
rights of the Owner Trustee under the Operative Agreements; and
(e) to execute and deliver all such other instruments, documents or
certificates and take all such other actions in accordance with the
directions of the Trustor, as the Trustor may deem necessary or advisable
in connection with the Certificate Closing Date and the Delivery Date and
the transactions contemplated hereby, the taking of any such action by the
Owner Trustee in the presence of the Trustor or its counsel to evidence,
conclusively, the direction of the Trustor.
Section 1.02. Declaration of Trust. SSB hereby declares and agrees,
in its individual capacity, that it will, and in its capacity as the Owner
Trustee does, hold the Lessor's Estate upon the trust herein set forth for the
use and benefit of the Trustor, subject, however, to the provisions of, and
the Lien created by, the Indenture. This Agreement is not intended by the
Trustor to create, and the trust created hereby is not intended by the Trustor
and the other parties interested herein to constitute a business trust for
purposes of the Bankruptcy Code.
Section 1.03. Conditions Precedent. The right and obligation of the
Owner Trustee to take the actions required by Section 1.01 hereof shall be
subject to the condition that the terms and conditions of Section 4.01 or
4.02, as the case may be, of the Participation Agreement shall have been
complied with in a manner satisfactory to the Owner Trustee and the Trustor.
ARTICLE 2
DISTRIBUTIONS
Section 2.01. Predelivery Funding; Rent, Etc. (a) The Trustor and
the Owner Trustee acknowledge that the proceeds from the sale of the
Certificates to be effected on the Certificate Closing Date are to be held by
the Indenture Trustee in the Collateral Account in the manner specified in the
Indenture for application as provided therein and in Section 3.02 of the
Participation Agreement.
(b) The Trustor and the Owner Trustee acknowledge that the
Lease will be security for the Certificates pursuant to the Indenture which
provides that all moneys payable by the Lessee to the Owner Trustee under the
Lease (other than Excepted Payments) are to be first paid to the Indenture
Trustee while the Lien of the Indenture is in effect, for distribution in
accordance with the terms of Article V of the Indenture. Except for amounts
received from the Indenture Trustee, which shall be applicable only in
accordance with clause (iii) below, the Owner Trustee shall promptly apply
each payment of the Rent (other than Excepted Payments), Stipulated Loss
Value, Termination Value, and any proceeds from the sale, requisition or
disposition of the Aircraft received by it as follows:
(i) prior to the release of the Lien of the Indenture, each such
payment shall be payable directly to the Indenture Trustee (and if any of
the same are received by the Owner Trustee shall, upon receipt, be paid
over to the Indenture Trustee without deduction, set off or adjustment of
any kind) for distribution in accordance with the provisions of Article V
of the Indenture; provided, that any payments received by the Owner Trustee
from (x) the Lessee with respect to SSB's or the Owner Trustee's fees and
disbursements under this Agreement, or (y) the Trustor pursuant to Section
6.01 hereof shall not be paid over to the Indenture Trustee but shall be
retained by the Owner Trustee and applied toward the purpose for which such
payments were made;
(ii) after the release of the Lien of the Indenture, any amount
remaining after application in full in accordance with paragraph (b)(i) of
this Section 2.01 and which represents payments for which provision as to
the application thereof is made in any other Operative Agreement shall be
applied promptly to the purpose for which such payment shall have been made
in accordance with the terms of such Operative Agreement; and
(iii) after application in accordance with paragraphs (i) and (ii) of
this Section 2.01(b), or to the extent received from the Indenture Trustee
under the terms of the Indenture, the balance, if any, remaining shall be
paid to the Trustor.
Section 2.02. Excepted Payments. Notwithstanding any other provision
contained herein, all Excepted Payments at any time received by the Owner
Trustee shall be distributed promptly to the applicable Person entitled
thereto, and such payment shall not be deemed under any circumstances to be
part of the Lessor's Estate.
Section 2.03. Distributions after Release of Lien of Indenture.
Except as otherwise provided in Sections 2.01 and 2.02 hereof:
(a) all payments received and amounts realized by the Owner
Trustee under the Lease or otherwise with respect to the Aircraft or
any part thereof (including, without limitation, all payments
received pursuant to Section 17.01 of the Lease and amounts realized
upon the sale or lease of the Aircraft or any part thereof after the
termination of the Lease with respect thereto), to the extent
received or realized at any time after the Lien of the Indenture
shall have been released pursuant to the terms of the Indenture, and
(b) moneys not included in paragraph (a) of this Section 2.03
remaining as part of the Lessor's Estate after the Lien of the
Indenture has been released,
shall, to the extent required, be retained by the Owner Trustee as
reimbursement for all expenses hereunder or under the Lease not theretofore
reimbursed under this Agreement, the Lease or otherwise and to which the Owner
Trustee is entitled to be reimbursed pursuant to the provisions thereof, and
any balance remaining thereafter shall be distributed to the Trustor.
Section 2.04. Manner of Making Distributions. The Owner Trustee
shall make distributions or cause distributions to be made to (i) the Trustor
pursuant to this Article 2 by transferring by wire transfer in immediately
available funds the amount to be distributed to the account set forth in the
Participation Agreement or to such other account or accounts of the Trustor as
it may designate from time to time by written notice to the Owner Trustee (and
the Owner Trustee shall use best efforts to cause such funds to be transferred
by wire transfer on the same day as received, but in any case not later than
the next succeeding Business Day), and (ii) the Indenture Trustee pursuant to
this Article 2 by paying the amount to be distributed to the Indenture Trustee
in the manner specified in the Indenture; provided, that the Owner Trustee
shall invest overnight, for the benefit of the Trustor, in investments that
would be permitted by Article 23 of the Lease (but only to the extent funds
are received on or prior to 2:00 P.M. (Eastern Time) and such investments are
available and, if such investments are not available to the Owner Trustee in
investments which, after consultation with the Trustor, the Trustor shall
direct) all funds not transferred by wire transfer on the same day as they
were received. Notwithstanding the foregoing but subject always to the
provisions of, and the Lien created by, the Indenture, the Owner Trustee will,
if so requested by the Trustor by written notice, pay in immediately available
funds any and all amounts payable by the Owner Trustee hereunder to the
Trustor as directed by the Trustor.
ARTICLE 3
THE OWNER TRUSTEE
Section 3.01. Acceptance of Trust and Duties. SSB accepts the trust
hereby created and, subject to Section 1.03 hereof, in its capacity as the
Owner Trustee agrees to perform the same, including without limitation,
subject to Section 1.03 hereof, the actions specified in Section 1.01 hereof
as herein provided. The Owner Trustee agrees to disburse all monies that it
receives under the Operative Agreements in accordance with the terms hereof.
The Owner Trustee shall not be answerable or accountable in its individual
capacity except as a result of or arising from (a) the Owner Trustee's willful
misconduct or gross negligence (in its individual capacity or as trustee), (b)
any breach by the Owner Trustee of its representations, warranties and
covenants given in its individual capacity in this Agreement, Article 5 of the
Lease, Sections 7.02(a) and (b) and 7.04 of the Participation Agreement or its
representations, warranties and covenants given in its individual capacity in
Sections 3.05 and 3.08 of the Indenture, (c) the failure to use ordinary care
in receiving, handling and disbursing funds, (d) Lessor's Liens attributable
to it in its individual capacity, and (e) taxes, fees, or other charges on,
based on, or measured by, any fees, commissions or compensation received by
SSB or the Owner Trustee in connection with the transactions contemplated by
the Lease, the Indenture and the Operative Agreements including this Agreement.
Section 3.02. Limitation on Authority of Owner Trustee. The Owner
Trustee shall have no power, right, duty or authority to, and agrees that it
will not, manage, control, possess, use, sell, lease, dispose of or otherwise
deal with the Aircraft, Airframe, Engines, any Part thereof or any other
property at any time constituting a part of the Lessor's Estate, or otherwise
to take or refrain from taking any action under or in connection with the
Operative Agreements, except (i) to execute and deliver the Operative
Agreements to which it is a party, (ii) to exercise and carry out or cause to
be exercised or carried out the rights, duties and obligations of the Owner
Trustee hereunder and under the other Operative Agreements, or (iii) as
expressly provided in written instructions from the Trustor given pursuant to
Section 3.03 or 3.04 hereof; provided, that nothing in this Section 3.02 shall
limit in any manner the obligations of the Owner Trustee hereunder.
Section 3.03. Notice of Default. In the event that a Responsible
Officer in the Corporate Trust Department of the Owner Trustee shall have
actual knowledge of a Default or an Event of Default, or an Indenture Default
or an Indenture Event of Default, the Owner Trustee shall give or cause to be
given to the Trustor and the Indenture Trustee prompt telephone or facsimile
notice, followed by prompt confirmation thereof by certified mail, postage
prepaid (in any event within two Business Days of the discovery thereof), in
accordance with Article 14 of the Participation Agreement, of such Default,
Event of Default, Indenture Default or Indenture Event of Default. Subject to
the terms of Section 3.06(e) hereof and the rights of the Indenture Trustee
under the Indenture, the Owner Trustee shall take such action with respect to
such Default, Event of Default, Indenture Default or Indenture Event of
Default as shall be specified in written instructions from the Trustor;
provided that the Owner Trustee shall have no duty to take any (and shall take
no) action whatsoever in the absence of written instructions from the Trustor.
For all purposes of this Agreement and the Lease, in the absence of actual
knowledge of a Responsible Officer of the Owner Trustee, the Owner Trustee
shall not be deemed to have knowledge of a Default, Event of Default,
Indenture Default or Indenture Event of Default unless notified in writing by
the Lessee, the Trustor, the Indenture Trustee or any Certificate Holder.
Section 3.04. Action Upon Instructions. Upon the written
instructions at any time and from time to time of the Trustor, the Owner
Trustee will take or refrain from taking such action, not inconsistent with
provisions of the Indenture, as may be specified in such instructions.
Section 3.05. Certain Duties and Responsibilities of Owner Trustee.
(a)(i) The Owner Trustee undertakes to perform such duties and only such
duties as are specifically set forth herein, and with the degree of care
specified in Section 3.01 hereof, and in accordance with written instructions
given by the Trustor hereunder, and no implied duties, covenants or
obligations shall be read into this Agreement, any such instructions or the
Operative Agreements against the Owner Trustee, and the Owner Trustee agrees
that it will not manage, control, possess, use, sell, lease, dispose of or
otherwise deal with the Aircraft or any part of the Lessor's Estate except as
required by the terms of the Operative Agreements, any such instructions and as
otherwise provided herein; and
(ii) in the absence of bad faith on its part, the Owner Trustee may
conclusively rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon certificates or opinions furnished to
the Owner Trustee and conforming to the requirements of this Agreement or
the other Operative Agreements, but in the case of any such certificates or
opinions which by any provisions hereof or thereof are specifically
required to be furnished to the Owner Trustee, the Owner Trustee shall be
under a duty to examine the same to determine whether or not they conform
to the requirements of this Trust Agreement or the Operative Agreements.
(b) No provision hereof shall require SSB in its individual capacity
to expend or risk its own funds or otherwise incur any financial liability in
the performance of any of its duties hereunder, 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 or liability
is not reasonably assured to it. Notwithstanding the foregoing, SSB agrees in
its individual capacity that it will, at its own cost and expense, promptly
take such action as may be necessary to discharge duly all Lessor's Liens
attributable to it in its individual capacity and will claim no indemnity
therefor hereunder, or under the Participation Agreement or any Operative
Agreement.
(c) Whether or not therein expressly so provided, every provision of
this Agreement relating to the conduct or affecting the liability of or
affording protection to the Owner Trustee shall be subject to the provisions
of this Section 3.05, except that in the event of a conflict between this
Section 3.05 and Section 3.01 hereof, Section 3.01 hereof shall be controlling.
(d) The Owner Trustee will furnish to the Trustor, promptly upon
receipt thereof, duplicates or copies of all reports, notices, requests,
demands, certificates, financial statements and any other instruments
furnished to the Owner Trustee hereunder or under the other Operative
Agreements (including those furnished to the Indenture Trustee pursuant to the
terms of the Indenture) and not otherwise furnished to the Trustor.
(e) Notwithstanding anything herein to the contrary, the Owner Trustee
shall not be authorized and shall have no power to "vary the investment" of the
Trustor within the meaning of Treasury Regulations Section 301.7701-4(c)(1),
it being understood that the Owner Trustee shall have the power and authority
to fulfill its obligations under Section 2.06 hereof and Article 23 of the
Lease.
Section 3.06. Certain Rights of Owner Trustee. Except as otherwise
provided in Section 3.05 hereof:
(a) in the absence of bad faith on its part, the Owner Trustee may
rely and shall be protected in acting or refraining from acting upon any
resolution, certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order or other paper or document reasonably
believed by it to be genuine and to have been signed or presented by the
proper party or parties;
(b) any request, direction or authorization by the Trustor or any
other party to any other Operative Agreement shall be sufficiently
evidenced by a request, direction or authorization in writing, delivered to
the Owner Trustee, and signed in the name of such party by any of the
Chairman of the Board, the President, any Vice President, the Treasurer or
Assistant Treasurer or the Secretary or Assistant Secretary or other duly
authorized officer of such party; and any resolution of the Board of
Directors or committee thereof of such party shall be sufficiently
evidenced by a copy of such resolution certified by the Secretary or an
Assistant Secretary of such party, to have been duly adopted and to be in
full force and effect on the date of such certification, and delivered to
the Owner Trustee;
(c) whenever in the administration of this Agreement the Owner Trustee
shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder or under any of the
other Operative Agreements, the Owner Trustee (unless other evidence be
herein or therein specifically prescribed), absent actual knowledge of a
Responsible Officer of the Owner Trustee to the contrary, may rely in good
faith upon a certificate in writing, delivered to the Owner Trustee and
signed by any of the Chairman of the Board, the President, any Vice
President, the Treasurer or Assistant Treasurer or the Secretary or
Assistant Secretary of the Lessee, the Trustor, or the Indenture Trustee
and notice of such need for such proof or establishment shall be delivered
to the Trustor, who may advise the Owner Trustee in respect of such matter
and the Owner Trustee shall act in conformity with such advice;
(d) the Owner Trustee may exercise its powers and perform its duties
by or through such attorneys, agents and servants as it shall appoint with
due care, and it shall be entitled to rely upon the advice of counsel
reasonably selected by it with due care and shall be protected by the
advice of such counsel in anything done or omitted to be done in accordance
with such advice;
(e) the Owner Trustee shall not be under any obligation to take any
action under this Agreement or under any of the other Operative Agreements
at the request or direction of the Trustor unless the Persons making such
request or direction shall have offered to the Owner Trustee reasonable
security or indemnity against the costs, expenses and liabilities which
might be incurred by it in compliance with such request or direction; nor
shall the Owner Trustee be required to take any action deemed to impose on
the Owner Trustee any obligation to take any action, if the Owner Trustee
shall have been advised by its counsel that such action is unlawful or is
contrary to the terms of this Agreement or the other Operative Agreements;
(f) the Owner Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order or
other paper or document unless a Responsible Officer of the Owner Trustee
has actual knowledge that the facts or matters stated therein are false or
inaccurate, but the Owner Trustee in its discretion may make such further
inquiry or investigation into such facts or matters as it may see fit, and,
if the Owner Trustee shall determine to make such further inquiry or
investigation, it shall be entitled, to the same extent permitted to the
Lessor under the Lease, to examine the books and records of the Lessee to
reasonably determine whether the Lessee is in compliance with the terms and
conditions of the Lease and to examine the Aircraft, Airframe, Engines or
any Part thereof personally or by agent or attorney; and
(g) without limiting the generality of Section 3.05 hereof, except as
otherwise provided in written instructions given to the Owner Trustee by the
Trustor or as otherwise provided in the Indenture or the Participation
Agreement, the Owner Trustee shall not have any duty (i) to see to any
recording or filing of the Lease or of this Agreement or any financing
statement or other notice or document relating thereto or contemplated
under the Operative Agreements or to see to the maintenance of any such
recording or filing (other than FAA reporting requirements contained in 14
C.F.R. Sections 47.45 and 47.51), (ii) to see to any insurance on the
Aircraft or any part thereof or to effect or maintain any such insurance,
whether or not the Lessee shall be in default with respect thereto, other
than to forward to the Trustor and (to the extent provided in the
Indenture) the Indenture Trustee copies of all certificates, reports and
other written information which it receives from the Lessee pursuant to the
Lease, (iii) to see to the payment or discharge of any tax, assessment or
other governmental charges or any Lien (except any Lessor's Lien
attributable to it in its individual capacity) owing with respect to, or
assessed or levied against any part of the Lessor's Estate, (iv) to confirm
or verify any financial statements or reports of the Lessee, or (v) to
inspect the Aircraft at any time or ascertain or inquire as to the
performance or observance of any of the Lessee's covenants under the Lease.
Section 3.07. No Representations or Warranties as to Certain
Matters. NEITHER THE OWNER TRUSTEE NOR SSB MAKES OR SHALL BE DEEMED TO HAVE
MADE (a) ANY REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, AS TO THE TITLE,
AIRWORTHINESS, VALUE, CONDITION, WORKMANSHIP, DESIGN, COMPLIANCE WITH
SPECIFICATIONS, CONSTRUCTION, OPERATION, MERCHANTABILITY OR FITNESS FOR USE
FOR A PARTICULAR PURPOSE OF THE AIRCRAFT, AS TO THE ABSENCE OF LATENT OR OTHER
DEFECTS, WHETHER OR NOT DISCOVERABLE, AS TO THE ABSENCE OF ANY INFRINGEMENT OF
ANY PATENT, TRADEMARK OR COPYRIGHT, AS TO THE ABSENCE OF OBLIGATIONS BASED ON
STRICT LIABILITY IN TORT, OR ANY OTHER REPRESENTATION OR WARRANTY WHATSOEVER,
EXPRESS OR IMPLIED, WITH RESPECT TO THE AIRCRAFT OR ANY PART THEREOF, except
that SSB represents and warrants that on the Delivery Date the Owner Trustee
shall have received whatever right, title and interests in, to and under the
Aircraft that were conveyed to it by AVSA and SSB represents, warrants and
covenants that at all times on and after the Delivery Date the Aircraft shall
be free of all Lessor's Liens attributable to it, and that the Owner Trustee
shall comply with the last sentence of Section 3.05(b) hereof, or (b) any
representation or warranty as to the validity, legality or enforceability of
this Agreement or any other Operative Agreement to which the Owner Trustee is
a party, or any other document or instrument, or as to the correctness of any
statement contained in any thereof, except to the extent that any such
representation, warranty or statement is expressly made herein or therein as a
representation or warranty by the Owner Trustee or SSB and except that SSB
hereby represents and warrants that this Agreement has been, and (assuming the
due authorization, execution and delivery of this Agreement by the Trustor)
the other Operative Agreements to which the Owner Trustee is a party have been
(or at the time of execution and delivery of any such instrument by the Owner
Trustee hereunder or pursuant to the terms of the Participation Agreement that
such an instrument will be) duly executed and delivered by one of its officers
who is or will be, as the case may be, duly authorized to execute and deliver
such instruments on behalf of the Owner Trustee and that this Agreement has
been duly authorized, executed and delivered by SSB and (assuming due
authorization, execution and delivery of this Trust Agreement by the Trustor)
constitutes the legal, valid and binding obligation of SSB enforceable against
it in accordance with its terms, except as such enforceability may be limited
by bankruptcy, insolvency, reorganization, moratorium or other similar laws
affecting the rights of creditors generally and by general principles of
equity.
Section 3.08. Status of Moneys Received. All moneys received by the
Owner Trustee under or pursuant to any provision of this Agreement or any
Operative Agreement shall constitute trust funds for the purpose for which
they were paid or are held, but need not be segregated in any manner from any
other moneys except to the extent required by law and may be deposited by the
Owner Trustee under such conditions as may be prescribed or permitted by law
for trust funds, or may be invested in direct obligations of the United States.
Section 3.09. Self-Dealing. The Owner Trustee in its individual
capacity, or any corporation in or with which the Owner Trustee may be
interested or affiliated, or any officer or director of any such corporation,
may have normal commercial relations, and otherwise deal, in the ordinary
course of business, with the Lessee or any other corporation having relations
with the Lessee to the full extent permitted by law.
Section 3.10. Definition of a Responsible Officer. For purposes of
this Trust Agreement only, "Responsible Officer" when used with respect to the
Owner Trustee means the Chairman or the Vice-Chairman of the Board of
Directors, the Chairman or Vice-Chairman of the Executive Committee of the
Board of Directors, the President, any Vice President (whether or not
designated by a number or a word or words added before or after the title
"Vice President"), the Secretary, any Assistant Secretary, or any other
officer in the Corporate Trust Department of SSB customarily performing
functions similar to those performed by any of the above designated officers.
Section 3.11. Resignation or Removal of Owner Trustee. The Owner
Trustee or any successor thereof (a) shall resign if required to do so
pursuant to Section 7.02(b) of the Participation Agreement and (b) may resign
at any time without cause by giving at least 60 days' prior written notice to
the Trustor and the Indenture Trustee, such resignation in each case to be
effective only upon the appointment of a successor trustee and the acceptance
of such appointment by such successor. In addition, the Trustor may at any
time remove the Owner Trustee without cause by an instrument in writing
delivered to the Owner Trustee and the Indenture Trustee, such removal to be
effective only upon the appointment by the Trustor of a successor Owner
Trustee and the acceptance of such appointment by such successor. Upon the
giving of notice of resignation or removal of the Owner Trustee, the Trustor
may appoint a successor Owner Trustee by an instrument signed by the Trustor.
If the Trustor shall not have so appointed a successor Owner Trustee within 30
days after such resignation or removal, the Owner Trustee, the Indenture
Trustee or the Trustor may apply to any court of competent jurisdiction to
appoint a successor Owner Trustee to act until such time, if any, as a
successor or successors shall have been appointed by the Trustor as above
provided. Any successor Owner Trustee so appointed by a court shall be
superseded by any successor Owner Trustee subsequently appointed by the
Trustor.
The appointment of any successor Owner Trustee shall be subject to the
conditions set forth in Section 11.01 of the Participation Agreement.
Section 3.12. Estate and Rights of Successor Owner Trustee. Any
successor Owner Trustee, however appointed, shall execute and deliver to the
predecessor Owner Trustee, with a copy to the Trustor and the Indenture
Trustee, an instrument accepting such appointment, in form and substance
acceptable to the predecessor Owner Trustee and the Trustor and thereupon each
successor Owner Trustee, without further act, shall become vested with all the
estates, properties, rights, powers, duties and trust of the predecessor Owner
Trustee in the trust hereunder with like effect as if originally named as an
Owner Trustee herein, but nevertheless upon the written request of such
successor Owner Trustee, such predecessor Owner Trustee shall execute and
deliver an instrument transferring to such successor Owner Trustee, upon the
trust herein expressed, all estates, properties, rights, powers, duties,
property or moneys then held by such predecessor Owner Trustee upon the trust
herein expressed. Upon any such transfer by a predecessor Owner Trustee, such
predecessor Owner Trustee shall provide the successor Owner Trustee and
Trustor an accounting of the Lessor's Estate and the trust hereunder.
Upon the appointment of any successor Owner Trustee hereunder, the
predecessor Owner Trustee will use its best efforts to cause registration of
the Aircraft included in the Lessor's Estate to be transferred upon the
records of the Aeronautics Authority or other registry where the Aircraft may
then be registered into the name of the successor Owner Trustee and shall
otherwise use its best efforts to comply, or assist the successor Owner
Trustee in complying, with the provisions of Section 11.01 of the
Participation Agreement.
Section 3.13. Merger or Consolidation of SSB. Any corporation into
which SSB in its individual capacity may be merged or with which it may be
consolidated, or any corporation resulting from any merger or consolidation to
which SSB shall be a party, or any corporation to which substantially all the
business of the Owner Trustee in its individual capacity may be transferred,
shall, subject to Section 11.01 of the Participation Agreement, be the Owner
Trustee under this Agreement without further act; provided, that such
corporation shall not also be the Indenture Trustee.
Section 3.14. Co-Trustees. At any time, if the Owner Trustee or the
Trustor shall deem it necessary or prudent or desirable in order to conform to
legal requirements of any jurisdiction in which any part of the Lessor's
Estate may at the time be located, the Owner Trustee by an instrument in
writing signed by it, shall appoint one or more Persons approved by the
Trustor to act as co-trustee, or co-trustees, jointly with the Owner Trustee,
or separate trustee or separate trustees (except insofar as local law makes it
necessary or prudent or desirable for any such co-trustee or separate trustee
to act alone), of all or any part of the Lessor's Estate, and to vest in such
Person or Persons, in such capacity, such title to the Lessor's Estate or any
part thereof, and such rights, powers, duties, trusts or obligations as the
Trustor may consider necessary or prudent or desirable. The Owner Trustee
shall not be liable for any act or omission of any co-trustee or separate
trustee appointed under this Section 3.14. No appointment of, or action by,
any co-trustee or separate trustee appointed under this Section 3.14 will
relieve the Owner Trustee of any of its obligations under any Operative
Agreement or otherwise affect any of the terms of the Indenture or adversely
affect the interests of the Indenture Trustee or the Certificate Holders in
the Trust Indenture Estate.
Any co-trustee or separate trustee may, at any time by an instrument
in writing, constitute the Owner Trustee its or his attorney-in-fact and agent
with full power and authority to do all acts and things and to exercise all
discretion on its or his behalf and in its or his name subject to the
conditions of this Agreement.
Every additional trustee hereunder shall be a Citizen of the United
States and, to the extent permitted by law, be appointed and act, and the
Owner Trustee and its successors shall act, subject to the following
provisions and conditions:
(A) all powers, duties, obligations and rights conferred upon the
Owner Trustee in respect of the custody, control and management of monies,
the Aircraft or documents authorized to be delivered hereunder or under the
Participation Agreement shall be exercised solely by the Owner Trustee;
(B) all other rights, powers, duties and obligations conferred or
imposed upon the Owner Trustee shall be conferred or imposed upon and
exercised or performed by the Owner Trustee and such additional trustee
jointly, except to the extent that under any law of any jurisdiction in
which any particular act or acts are to be performed (including the holding
of title to the Lessor's Estate) the Owner Trustee shall be incompetent or
unqualified to perform such act or acts, in which event such rights,
powers, duties and obligations shall be exercised and performed by such
additional trustee;
(C) no power given to, or which is provided hereby may be exercised
by, any such additional trustee, except jointly with, or with the consent
in writing of, the Owner Trustee;
(D) no trustee hereunder shall be personally liable by reason of any
act or omission of any other trustee hereunder except as otherwise provided
hereunder; and
(E) the Trustor, at any time, by an instrument in writing may remove
any such additional trustee.
Section 3.15. Interpretation of Agreements. In the event that the
Owner Trustee is unsure as to the application of any provision of this
Agreement or any other Operative Agreement or any other agreement relating to
the transactions contemplated by the Operative Agreements or such provision is
ambiguous as to its application, or is, or appears to be, in conflict with any
other applicable provision, or in the event that this Agreement or any other
Operative Agreement permits any determination by the Owner Trustee or is
silent or incomplete as to the course of action which the Owner Trustee is
required to take with respect to a particular set of facts, the Owner Trustee
shall request in writing sent in accordance with Article 14 of the
Participation Agreement instructions of the Trustor and, to the extent that
the Owner Trustee acts in good faith in accordance with any instructions
received from the Trustor, shall not be liable to any Person; provided, that
in the event that no response is made to the Owner Trustee by the Trustor
within 25 Business Days after such request, the Owner Trustee shall not be
liable to any Person for acts taken by the Owner Trustee in good faith in what
it deems to be the best interests of the Trustor or for any failure to act in
any situation described above in this Section 3.15. The provisions of this
Section 3.15 shall not be applicable to the Owner Trustee's obligations set
forth in the last sentence of Section 3.01 hereof.
Section 3.16. Not Acting in Individual Capacity. In carrying out
the trust hereby created, the Owner Trustee will act solely as trustee
hereunder and not in its individual capacity except as expressly provided
herein or in the other Operative Agreements to which it is a party; and all
Persons, other than the Trustor as provided in this Agreement, having any
claim against the Owner Trustee by reason of the transactions contemplated
hereby shall look only to the Lessor's Estate for payment or satisfaction
thereof, except to the extent provided in the last sentence of Section 3.01
hereof.
Section 3.17. Books and Records; Tax Returns. The Owner Trustee
shall be responsible for the keeping of all appropriate books and records
relating to its receipt and disbursement of all moneys under this Agreement or
any Operative Agreement and shall, upon the request of the Trustor or its duly
authorized representative, make available such books and records at its
principal trust office during normal business hours for inspection and
copying. The Owner Trustee agrees to sign and file all returns with respect
to Taxes that the Trustor prepares (or causes to be prepared) and directs the
Owner Trustee to sign and file. The Owner Trustee, upon request, will furnish
the Trustor with all such information as may be reasonably required or
necessary from the Owner Trustee in connection with the preparation of such tax
returns and in connection with any other filing or audit and related litigation
obligations. At the request of the Trustor, and at the expense of the Lessee,
the Owner Trustee shall file an application with the Internal Revenue Service
for a taxpayer identification number with respect to the trust created
hereunder and prepare or cause to be prepared and sign and/or file the Federal
fiduciary tax return with respect to Taxes due and payable by the Trust in
connection with the transactions contemplated hereby or by any other Operative
Agreement; provided, however, that the Owner Trustee shall send a completed
copy of each such return to the Trustor not more than 60 nor less than 30 days
prior to the due date of such return; provided that the Owner Trustee shall
have timely received all necessary information to complete and deliver to the
Trustor such return. The Trustor, upon request, will furnish the Owner Trustee
with all such information as may be required from the Trustor in connection
with the preparation of such income tax returns. The Owner Trustee shall keep
copies of all returns delivered to or filed by it.
ARTICLE 4
TERMINATION OF TRUST
Section 4.01. Termination. This Agreement and the trust created and
provided for hereby shall cease and be terminated in any one of the following
events, whichever shall first occur:
(a) The sale or other final disposition by the Owner Trustee of all
of its interest in all property constituting or included in the Lessor's
Estate and, if the Indenture shall then be in effect, the sale or other
disposition by the Indenture Trustee of all of its interest in all property
constituting or included in the Lessor's Estate, and the final disposition
by the Owner Trustee and, if the Indenture shall then be in effect, the
Indenture Trustee, of all moneys or other property or proceeds constituting
part of the Lessor's Estate in accordance with the terms hereof; or
(b) 21 years less one day from the death of the last survivor of the
descendants of Queen Victoria of England living on the date of this
Agreement; provided, however, that if the Trust shall be or become valid
under applicable law for a period subsequent to 21 years less one day from
the death of the last survivor of the descendants of Queen Victoria of
England living on the date of this Agreement or, without limiting the
generality of the foregoing, if legislation shall become effective
providing for the validity or permitting the effective grant of such trust
for a period, in gross, exceeding the period for which such trust is
hereinabove stated to extend and be valid, then such trust shall not
terminate as provided in the first part of this sentence but shall extend
to and continue in effect until, but only if such non-termination and
extension shall then be valid under applicable law, such time as the same
shall, under applicable law, cease to be valid.
Section 4.02. Termination at Option of the Trustor. Notwithstanding
Section 4.01 hereof, this Agreement and the trust created hereby shall
terminate and the Trust Estate shall be distributed to the Trustor, and this
Agreement shall be of no further force and effect, upon the election of the
Trustor by notice to the Owner Trustee, if such notice shall be accompanied by
the written agreement (in form and substance satisfactory to the Owner
Trustee) of the Trustor assuming all the obligations of the Owner Trustee
under or contemplated by the Operative Agreements or incurred by it as trustee
hereunder and releasing the Owner Trustee therefrom; provided, however, that
such notice may be given only after the time the Lien of the Indenture is
discharged under Section 14.01 of the Indenture and the Lease has terminated
unless the Trustor shall have received the prior written consent of the
Indenture Trustee to any such termination in which case such notice may be
given while the Lien of the Indenture is outstanding.
Section 4.03. Distribution of Lessor's Estate upon Termination.
Upon any termination of this trust pursuant to the provisions of Section 4.01
hereof, the Owner Trustee shall convey the Lessor's Estate (subject to all
obligations, if any, of the Owner Trustee then existing under the Operative
Agreements to which the Owner Trustee is a party) to such purchaser or
purchasers or the Trustor, as the case may be, and for such amount and on such
terms as shall be specified in written instructions from the Trustor delivered
to the Owner Trustee prior to the date of termination; provided, that (i) if
at the time of any termination the Lease remains in force and effect, then the
Lessor's Estate shall be sold as a unit (and not in parcels) and subject to
the Lease, and (ii) in the event such written instructions are not delivered
to the Owner Trustee on or before the date of termination, the Owner Trustee
shall transfer title to the Lessor's Estate to the Trustor. Upon making such
transfer or sale and accounting for all funds which have come into its hands,
the Owner Trustee shall be entitled to receipt of any sums due and owing to
the Owner Trustee for expenses incurred pursuant hereto as set forth in
Section 2.05 hereof.
ARTICLE 5
[RESERVED]
ARTICLE 6
MISCELLANEOUS
Section 6.01. Indemnification. The Trustor shall assume liability
for, and shall indemnify, protect, save and keep harmless SSB from and against
any and all liabilities, obligations, losses, damages, penalties, taxes,
claims, actions, proceedings, suits, costs (including reasonable attorneys'
fees), expenses and disbursements of any kind and nature whatsoever ("Trust
Claims") imposed on, incurred by or asserted against the Owner Trustee or SSB,
as the case may be (but only to the extent the Owner Trustee or SSB, as the
case may be, is not indemnified by the Lessee for such Trust Claims under any
Operative Document or is not indemnified by any other Person for such Trust
Claims, within a reasonable time after demand therefor), in any way relating
to or arising out of (X) the Trust Estate or any of the properties included
therein and (Y) the administration of the Trust Estate or the action of
inaction of the Owner Trustee hereunder or under the Operative Documents
including, but not limited to, claims under any Environmental Laws; provided,
however, that (a) the Trustor shall not be required to indemnify the Owner
Trustee or SSB in the case of (i) willful misconduct, negligence with respect
to handling of funds, gross negligence or bad faith of the Owner Trustee or
SSB, as the case may be, (ii) the Owner Trustee's or SSB's failure to use
ordinary care in the handling of monies constituting part of the Trust Estate,
(iii) Taxes of the Owner Trustee or SSB, as the case may be, that are based on
or measured by the compensation received by SSB for acting as Owner Trustee
hereunder, and (iv) items excluded from indemnification by the Lessee as, as
to the extent, provided in Section 8.01(b)(i-xii) and 9.01(b)(i-ix) of the
Participation Agreement, and (b) the Trustor shall not be required to
indemnify with respect to Trust Claims resulting from a breach of the
covenants by SSB in Article 3 hereof or Trust Claims resulting because any
representation or warranty of the Owner Trustee or SSB, as the case may be,
contained in any Operative Document proves to be untrue or inaccurate or the
failure by the Owner Trustee or SSB, as the case may be, to perform or observe
any agreements, covenants or conditions to be performed or observed by it in
any of the Operative Documents. None of the foregoing exclusions shall limit
the obligation of the Trustor to indemnify SSB (but SSB shall still be
required to seek indemnification from the Lessee before making a claim against
the Trustor hereunder unless such exclusion is otherwise limited under
Sections 8.01(b) and 9.01(b) of the Participation Agreement), (i) for actions
taken in accordance with written instructions received from the Trustor, and
(ii) to the extent such exclusions are attributable to acts or omissions of
the Trustor. The payor of any indemnity under this Section 6.01 shall be
subrogated to any right of the person indemnified in respect of the matter as
to which such indemnity was paid. The indemnities contained in this Section
6.01 shall survive the termination of this Agreement.
Section 6.02. Limitations on the Trustor's Liability. The Trustor
shall not have any liability for the performance of this Agreement except as
expressly set forth herein.
Section 6.03. Fees; Compensation. Except as provided in Section
3.06(e) or 6.01 hereof, the Owner Trustee agrees that it shall have no right
against the Trustor or the Trust Estate for any fee as compensation for its
services hereunder.
Section 6.04. Supplements and Amendments. At any time and from time
to time, only upon the written request of the Trustor (a) SSB and the Trustor
shall execute a supplement hereto for the purpose of adding provisions to, or
changing or eliminating provisions of, this Agreement as specified in such
request and (b) the Owner Trustee shall, subject to the provisions of Section
8.01 of the Indenture, enter into or consent to such written amendment or
modification of or supplement to any of the Operative Agreements as the
Trustor and any other necessary parties may agree to in writing and as may be
specified in such request, or execute and deliver such written waiver of the
terms of any of the Operative Agreements as may be agreed to in writing by the
Trustor and as may be specified in such request; provided, that (i) the Owner
Trustee shall not execute any such supplement, amendment, waiver or
modification without the prior written consent of the Trustor, (ii) if in the
reasonable opinion of the Owner Trustee any document required to be executed
by it pursuant to this Section adversely affects any right or duty of, or
immunity or indemnity in favor of, the Owner Trustee under this Agreement or
any other Operative Agreement, the Owner Trustee may in its discretion
decline to execute such document and (iii) any amendment or supplement to this
Agreement shall comply with the provisions of Section 7.13 of the
Participation Agreement. It shall not be necessary that any request pursuant
to this Section specify the particular form of the proposed document to be
executed pursuant to such request, but it shall be sufficient if such request
shall indicate the substance thereof. Promptly after the execution by SSB or
the Owner Trustee of any document pursuant to this Section, the Owner Trustee
shall mail a conformed copy thereof to the Trustor, the Indenture Trustee and
the Lessee, but the failure of the Owner Trustee to mail such conformed copies
shall not impair or affect the validity of such document.
Section 6.05. Nature of Title of Trustor. The Trustor shall not
have any legal title to any part of the Lessor's Estate. No transfer, by
operation of law or otherwise, of the right, title and interest of the Trustor
in and to the Lessor's Estate or the trust hereunder shall operate to
terminate this Agreement or Lessor's Estate.
Section 6.06. Power of Owner Trustee to Convey. Any assignment,
sale, transfer or other conveyance by the Owner Trustee of the interest of the
Owner Trustee in the Operative Agreements or in the Aircraft or any part
thereof pursuant to and in compliance with the terms of this Agreement or the
Operative Agreements shall bind the Trustor and shall be effective to transfer
or convey all right, title and interest of the Owner Trustee in and to the
Operative Agreements or the right, title and interest of the Owner Trustee and
the Trustor in and to the Aircraft or such part thereof. No purchaser or
other grantee shall be required to inquire as to the authorization, necessity,
expediency or regularity of such assignment, sale, transfer or conveyance or
as to the application of any sale or other proceeds with respect thereto by
the Owner Trustee.
Section 6.07. Notices. All notices, demands, declarations and other
communications required by this Agreement shall be in writing and shall be
deemed received (a) if given by telecopier, when transmitted and the
appropriate telephonic confirmation received if transmitted on a Business Day
and during normal business hours of the recipient, and otherwise on the next
Business Day following transmission, (b) if given by certified mail, return
receipt requested, postage prepaid five Business Days after being deposited in
the United States mail, and (c) if given by FedEx service or other means, when
received or personally delivered, addressed:
If to the Owner Trustee: State Street Bank and Trust Company of Connecticut,
National Association
c/o State Street Bank and Trust Company
Two International Place
4th Floor
Boston, Massachusetts 02110
Attention: Corporate Trust Department
Telephone: (617) 664-5526
Facsimile: (617) 664-5371
If to the Trustor: PMCC Leasing Corporation
200 First Stamford Place
Stamford, Connecticut 06902
Attention: Vice President Leasing
with a copy to Director, Portfolio Administration
Telephone: (914) 335-5000
Facsimile: (914) 335-8301
If to the Indenture
Trustee: First Security Bank, National Association
79 South Main Street
Salt Lake City, Utah 84111
Attention: Corporate Trust Department
Telephone: (801) 246-5630
Facsimile: (801) 246-5053
or as to any of the foregoing parties at such other address as such party may
designate by notice duly given in accordance with this Section to the other
parties.
Section 6.08. Situs of Trust; Applicable Law; Severability. THIS
AGREEMENT SHALL IN ALL RESPECTS BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE INTERNAL LAWS OF THE STATE OF CONNECTICUT, INCLUDING ALL MATTERS OF
VALIDITY, CONSTRUCTION AND PERFORMANCE. If any provision of this Agreement
shall be invalid or unenforceable, the remaining provisions hereof shall
continue to be fully effective; provided, that such remaining provisions do
not increase the obligations or liabilities of the Owner Trustee or the
Trustor.
Section 6.09. Successors and Assigns. This Agreement shall be
binding upon and shall inure to the benefit of, and shall be enforceable by,
the parties hereto and their respective successors and permitted assigns,
including any successive holder of the Beneficial Interest, but only to the
extent the Beneficial Interest has been transferred or assigned in accordance
with the limitations of Section 7.03(d) of the Participation Agreement.
Section 6.10. Headings and Table of Contents. The headings of the
Articles and Sections of this Agreement and the Table of Contents are inserted
for convenience only and shall not affect the meaning or construction of any
of the provisions hereof.
Section 6.11. Identification of Trust. This trust may for
convenience be referred to as the "Federal Express Corporation Trust No.
N672FE."
Section 6.12. Counterparts. This instrument may be executed in any
number of counterparts or upon separate signature pages bound together in
several counterparts, each of which when so executed shall be deemed to be an
original, and such counterparts together shall constitute and be one and the
same instrument.
Section 6.13. Trustor Interest. The Trustor has only a beneficial
interest in any specific property of this Trust. No creditor of the Trustor
shall have any right to obtain possession of, or otherwise exercise legal or
equitable remedies with respect to, the property of this trust (as opposed to
the Trustor's beneficial interest in this trust).
Section 6.14. Performance by the Trustor. Any obligation of the
Owner Trustee hereunder or under any Operative Agreement or other document
contemplated herein may be performed by the Trustor and any such performance
shall not be construed as a revocation of the trust created hereby.
IN WITNESS WHEREOF, SSB and the Trustor have caused this Agreement to
be duly executed all as of the date first above written.
PMCC LEASING CORPORATION
By:
-------------------------------------------------
Name: Joan D. Woodroof
Title: Manager, Structured Finance
STATE STREET BANK AND TRUST COMPANY OF
CONNECTICUT, NATIONAL ASSOCIATION
By:
-------------------------------------------------
Name: Paul D. Allen
Title: Vice President
SCHEDULE I
DEFINITIONS
(FEDERAL EXPRESS CORPORATION TRUST NO. N672FE)
GENERAL PROVISIONS
The following terms shall have the following meanings for all
purposes of the Operative Agreements (other than the Pass Through Agreement,
the Series Supplements, the Intercreditor Agreement and the Liquidity
Facilities) referred to below, unless otherwise defined in an Operative
Agreement or the context thereof shall otherwise require. In the case of any
conflict between the provisions of this Schedule and the provisions of any
Operative Agreement, the provisions of such Operative Agreement shall control
the construction of such Operative Agreement.
Unless the context otherwise requires, (i) references to agreements
shall be deemed to mean and include such agreements as amended and
supplemented from time to time, and (ii) references to parties to agreements
shall be deemed to include the successors and permitted assigns of such
parties.
DEFINED TERMS:
Additional Insured. As defined in Article 13 of the Lease.
Aeronautics Authority. As appropriate, the Federal Aviation
Administration and/or the Administrator of the Federal Aviation
Administration, any successor to the former United States Civil Aeronautics
Board, or any Person, governmental department, bureau, commission or agency
located in the United States succeeding to the functions of any of the
foregoing.
Affidavits. The affidavits of citizenship of the Owner Trustee and
the Owner Participant.
Affiliate. With respect to any Person, any other Person directly or
indirectly controlling, controlled by or under common control with such
Person. For the purposes of this definition, "control" (including "controlled
by" and "under common control with") shall mean the power, directly or
indirectly, to direct or cause the direction of the management and policies of
such Person whether through the ownership of voting securities or by contract
or otherwise. In no event shall the Owner Trustee or the Lessor be deemed an
Affiliate of the Owner Participant.
After-Tax Basis. A basis such that any payment to be received by a
Person shall be supplemented by a further payment to such Person so that the
sum of the two payments, after deduction of all Taxes resulting from the
receipt or accrual of such payments, shall be equal to the payment to be
received. In the case of amounts payable to the Lessor, the Owner Participant,
or any corporate Affiliate of the Owner Participant, it shall be presumed that
such Person is at all times subject to Federal income tax at the maximum
marginal rate generally applicable to corporations from time to time and
actual state, local and foreign income taxes.
Air Carrier. Any U.S. Air Carrier and any "foreign air carrier" (as
defined in the Transportation Code) as to which there is in force a permit
granted under Section 41302 of the Transportation Code.
Airbus Guaranty. The Guaranty to be dated the Delivery Date executed
by the Manufacturer and guaranteeing AVSA's Warranty Bill of Sale.
Aircraft. The Airframe to be sold by AVSA to the Owner Trustee as
provided in the Participation Agreement and to be leased under the Lease (or
any permitted substitute airframe thereunder) together with two Engines
(whether either is an initial Engine or a Replacement Engine) whether or not
any of such initial or Replacement Engines may from time to time be installed
on such Airframe or may be installed on any other airframe or on any other
aircraft, including any aircraft substituted pursuant to Section 11.03 of the
Lease. Prior to delivery of the initial Lease Supplement, references in the
Operative Agreements (including Section 3.05 of the Participation Agreement)
to Aircraft shall mean the Airbus A300F4-605R airframe bearing FAA
Registration Number N672FE and Manufacturer's serial number 779, together with
two General Electric CF6-80C2-A5F engines.
Airframe. The Airbus A300F4-605R aircraft (excluding the Engines or
engines from time to time installed thereon) to be leased by the Lessor to the
Lessee pursuant to the Lease and the initial Lease Supplement and having the
United States FAA Registration Number initially and manufacturer's serial
number specified in the initial Lease Supplement, including (i) all Parts in
respect thereof and (ii) any Replacement Airframe which may be substituted
pursuant to Section 11.03 of the Lease.
Ancillary Agreement. Any written agreement of the Lessee to which the
Lessor is a party or to which the Lessor has consented in writing entered into
on or prior to the Delivery Date or any date thereafter in connection with the
transactions contemplated by the Operative Agreements, as such agreement may
be amended and supplemented from time to time with the consent of the Lessor
and delivered to the Owner Trustee, the Indenture Trustee, the Pass Through
Trustee, the Subordination Agent, each Liquidity Provider and the Owner
Participant.
Ancillary Agreement I. The Ancillary Agreement I (Federal Express
Corporation Trust No. N672FE), dated the Certificate Closing Date, among the
Lessee, the Owner Trustee, not in its individual capacity, but solely as Owner
Trustee, the Owner Participant and the Indenture Trustee not in its individual
capacity, but solely as Indenture Trustee, as originally executed or as
amended, modified or supplemented with the consent of all the parties thereto.
Ancillary Agreement II. The Ancillary Agreement II (Federal Express
Corporation Trust No. N672FE), dated the Certificate Closing Date, among the
Lessee, the Owner Trustee, not in its individual capacity, but solely as Owner
Trustee, the Owner Participant and the Indenture Trustee not in its individual
capacity, but solely as Indenture Trustee, as originally executed or as
amended, modified or supplemented with the consent of all the parties thereto.
Application. The application for registration of the Aircraft with
the FAA in the name of the Owner Trustee.
Appraisal. The report prepared by BK Associates, Inc. and to be
delivered to the Owner Participant (with an abbreviated report to the Lessee)
on the Delivery Date pursuant to Section 4.02(h) of the Participation
Agreement.
Assignment and Assumption Agreement. Any agreement delivered in
compliance with Section 7.03(d) of the Participation Agreement.
Average Life Date. For any Certificate, the date which follows the
prepayment date by a period equal to the Remaining Weighted Average Life of
such Certificate.
AVSA. AVSA S.A.R.L., a societe a responsabilite limitee, organized
and existing under the laws of France.
AVSA Consent and Agreement. The Consent and Agreement dated as of
May 1, 1997, executed by AVSA.
AVSA's FAA Bill of Sale. The bill of sale for the Airframe on AC
Form 8050-2, or such other form as may be approved by the Aeronautics
Authority, executed by AVSA in favor of the Owner Trustee and to be dated the
Delivery Date.
AVSA's Warranty Bill of Sale. The full warranty bill of sale
covering the Aircraft (and specifically referring to each Engine) executed by
AVSA as owner of the Aircraft in favor of the Owner Trustee and to be dated
the Delivery Date.
Bankruptcy Code. The Federal Bankruptcy Code of 1978, as amended, and
any successor thereto.
Bankruptcy Default. An event specified in Section 16.01(e), (f) or
(g) of the Lease which either does or, with the giving of notice or lapse of
time or both, would constitute an Event of Default.
Basic Rent. The aggregate periodic rent payable for the Aircraft
throughout the Basic Term pursuant to Section 3.02 of the Lease, adjusted
pursuant to Article 3 of the Lease.
Basic Term. The period commencing at the beginning of the day on the
Delivery Date and ending at the end of the day on November 19, 2020, or such
earlier date on which the Lease shall be terminated as provided therein.
Beneficial Interest. The interest of the Owner Participant under the
Trust Agreement.
Business Day. Any day on which commercial banks are not authorized or
required to close in New York, New York, Memphis, Tennessee and the city in the
United States in which the office or agency is maintained by the Pass Through
Trustee for the payment of the Pass Through Certificates, and after the Lien
of the Indenture is discharged, Boston, Massachusetts.
Certificate Closing Date. The date of the closing with respect to the
purchase of Certificates by the Pass Through Trustee contemplated by Section
2.01(b) of the Participation Agreement.
Certificates. The Equipment Trust Certificates (Federal Express
Corporation Trust No. N672FE), issued by the Owner Trustee pursuant to the
Indenture and any certificate issued in exchange therefor or replacement
thereof pursuant to the Indenture.
Change in Tax Law. Any change to the Code or the Treasury regulations
promulgated thereunder or the publication of any revenue ruling, revenue
procedure or any informational release by the Internal Revenue Service or the
Department of Treasury either of which would change or would allow a change in
the tax assumptions or structure upon which the lease economics were based,
provided that the Owner Participant or the Lessee has notified the other party
of such change in writing prior to the Delivery Date.
Change in Tax Rate. Any amendment, modification, deletion, addition,
or change to the Code which is enacted into law after the Delivery Date which
changes the highest marginal statutory rate of Federal income tax applicable
to the Owner Participant (other than a change which is in the nature of a
minimum tax).
Citizen of the United States. A citizen of the United States as
defined in Section 40102(a)(15) of the Transportation Code, or any analogous
part of any successor or substituted legislation or regulation at the time in
effect.
Class A Liquidity Provider. Has the meaning specified in Section
1.01 of the Intercreditor Agreement.
Class B Liquidity Provider. Has the meaning specified in Section
1.01 of the Intercreditor Agreement.
Closings. The closing with respect to the acquisition of the Pass
Through Certificates by the Underwriters and the closing with respect to the
acquisition of Certificates by the Pass Through Trustee.
Code. Except as otherwise provided, the Internal Revenue Code of
1986, as amended from time to time.
Collateral Account. The deposit account established and maintained
pursuant to Section 2.13 of the Indenture.
Collateral Account Control Agreement. The Collateral Account Control
Agreement dated as of May 1, 1997 among State Street Bank and Trust Company,
the Indenture Trustee and the Owner Trustee.
Commitment. The amount of the Owner Participant's participation in
the Purchase Price required to be made available or paid as provided in
Section 3.02 of the Participation Agreement.
Consent and Agreement. The Consent and Agreement dated as of May 1,
1997 executed by the Manufacturer.
Consent and Guaranty. The Consent and Guaranty of the Manufacturer
attached to the Purchase Agreement.
Corporate Trust Administration. The Corporate Trust Administration
office of the Owner Trustee located at 750 Main Street, Hartford, Connecticut
06103, Attention: Corporation Trust Administration, or such other office at
which the Owner Trustee's corporate trust business shall be administered which
the Owner Trustee shall have specified by notice in writing to the Lessee, the
Owner Participant and the Indenture Trustee.
Corporate Trust Department. The Corporate Trust Department office of
the Indenture Trustee located at 79 South Main Street, Salt Lake City, Utah
84111, Attention: Corporate Trust Department, or such other office at which
the Indenture Trustee's corporate trust business shall be administered which
the Indenture Trustee shall have specified by notice in writing to the Lessee,
the Owner Participant and the Owner Trustee.
CRAF Program. Has the meaning specified in Section 7.01(f) of the
Lease.
Cut-Off Date. November 17, 1997.
Debt Portion. The amount specified as such on Schedule IV to the
Participation Agreement.
Debt Rate. The weighted average (based on Outstanding principal
amount) rate of interest on the Certificates issued pursuant to the Indenture.
Default. Any event or condition which, with the lapse of time or the
giving of notice, or both, would constitute an Event of Default.
Delivery Date. The date on which the Aircraft is delivered and sold
by AVSA to the Lessor and leased by the Lessor to the Lessee under the Lease,
which date shall also be the date of the initial Lease Supplement.
Delivery Notice. Notice of the Aircraft's Delivery Date, given by
the Lessee as provided in Section 3.01 of the Participation Agreement and
including any notice with respect to a postponed Delivery Date given by the
Lessee pursuant to Section 3.05(c) of the Participation Agreement.
Eligible Deposit Account. Either (a) a segregated account with an
Eligible Institution or (b) a segregated trust account with the corporate
trust department of a depository institution with corporate trust powers
organized under the laws of the United States or any state thereof, or the
District of Columbia, and whose deposits are insured by the Federal Deposit
Insurance Corporation, provided that such institution also has a combined
capital and surplus of at least $100,000,000 and a rating of A or better from
the Thomson Bank Watch.
Eligible Institution. A depository institution organized under the
laws of the United States or any one of the states thereof, or the District of
Columbia, or any domestic branch of a foreign bank, which in any such case at
all times (a) has either (x) a long-term unsecured debt rating of at least Aa2
by Moody's or (y) a short-term certificate of deposit rating of P-1 by
Moody's, (b) has either (x) a long-term unsecured debt rating of a least AA by
S&P or (y) a short-term certificate of deposit rating of A-1+ by S&P and (c)
is a member of the Federal Deposit Insurance Corporation.
Engine. Each of the two General Electric CF6-80C2-A5F engines listed
by its manufacturer's serial number in the initial Lease Supplement and leased
pursuant to the Lease, whether or not from time to time installed on the
Airframe or installed on any other airframe or on any other aircraft, and any
Replacement Engine which may from time to time be substituted for an Engine
pursuant to Section 7.02(a)(vii), 10.02(c), 10.03, 11.03, 11.04 or 12.02 of
the Lease, together with all Parts related thereto. Except as otherwise
provided, at such time as a Replacement Engine shall be so substituted and the
Engine for which the substitution is made shall be released from the Lien of
the Indenture, such replaced Engine shall cease to be an "Engine" under the
Lease. The term "Engines" means, as of any date of determination, both Engines
then leased to the Lessee pursuant to the Lease.
Engine Consent. The Engine Consent dated as of May 1, 1997, executed
by the Engine Manufacturer.
Engine Manufacturer. General Electric Company, a New York
corporation.
Engine Warranty Assignment. The Engine Warranty Assignment (Federal
Express Corporation Trust No. N672FE), dated as of May 1, 1997 between the
Lessor and the Lessee.
ERISA. The Employee Retirement Income Security Act of 1974, as
amended.
ERISA Plan. As defined in Section 8.01(b)(xii) of the Participation
Agreement.
Estimated Expense Amount. Has the meaning specified in Section
10.01(a) of the Participation Agreement.
Event of Default. Each of the events specified in Article 16 of the
Lease.
Event of Loss. Any of the following events with respect to the
Aircraft, the Airframe or any Engine: (i) loss of such property or its use (A)
for a period in excess of 60 days due to theft or disappearance or such longer
period, not to exceed 180 days from the end of such initial 60-day period, if
and so long as the location of such property is known to the Lessee and the
Lessee is diligently pursuing recovery of such property, or to the end of the
Term, if less (unless such theft or disappearance constitutes an Event of Loss
pursuant to (i)(B) or (ii) hereof) or (B) for a period in excess of 60 days
due to the destruction, damage beyond economic repair or rendition of such
property permanently unfit for normal use by Lessee for any reason whatsoever;
(ii) any damage to such property which results in an insurance settlement with
respect to such property on the basis of a total loss, or constructive or
compromised total loss; (iii) (1) condemnation, confiscation or seizure of, or
requisition of title to such property by the Government, any foreign
government or purported government or any agency or instrumentality thereof,
or (2) condemnation, confiscation, or seizure of, or requisition or taking of,
use of such property (A) by a foreign government or instrumentality or agency
of any such foreign government, for a period in excess of 180 days (or such
shorter period ending on the earlier of the expiration of the Term or on the
date on which an insurance settlement with respect to such property on the
basis of a total loss or constructive or compromised total loss shall occur)
or (B) by the Government for a period extending beyond the Term; and (iv) as a
result of any law, rule, regulation, order or other action by the Aeronautics
Authority or other governmental body having jurisdiction, the use of the
Aircraft or Airframe in the normal course of air transportation of cargo shall
have been prohibited by virtue of a condition affecting all Airbus A300-600
series aircraft equipped with engines of the same make and model as the
Engines for a period of twelve (12) consecutive months, unless the Lessee,
prior to the expiration of such twelve (12) month period, shall be diligently
carrying forward all steps which are necessary or desirable to permit the
normal use of the Aircraft or Airframe or, in any event, if such use of the
Aircraft or the Airframe shall have been prohibited for a period of
twenty-four (24) consecutive months or until the end of the Term, if earlier.
The date of such Event of Loss shall be (s) the 61st day or the 241st day, as
the case may be, following loss of such property or its use due to theft or
disappearance (or the end of the Term or the Lessee's abandonment of diligent
efforts to recover such property, if earlier); (t) the 61st day following the
date of any destruction, damage beyond economic repair or rendition of such
property permanently unfit for normal use; (u) the date of any insurance
settlement on the basis of a total loss or constructive or compromised total
loss; (v) the date of any condemnation, confiscation, seizure or requisition
of title of such property; (w) the 181st day following condemnation,
confiscation, seizure or requisition for use of such property by a foreign
government referred to in clause (iii)(2)(A) above (or the end of the Term or
the date of any insurance settlement described therein, if earlier than such
181st day); (x) the last day of the Term in the case of requisition for use of
such property by the Government; (y) the last day of the 12 month or 24 month
period, referred to in clause (iv) above (or if earlier, the end of the Term
or abandonment of the Lessee's efforts to restore the normal use of the
Aircraft). An Event of Loss with respect to the Aircraft shall be deemed to
have occurred if any Event of Loss occurs with respect to the Airframe.
Excepted Payments. Collectively, (i) indemnity, expense,
reimbursement or other payments paid or payable by the Lessee in respect of
the Owner Participant, the Owner Trustee in its individual capacity or any of
their respective successors, permitted assigns, directors, officers,
employees, servants and agents or Affiliates, pursuant to the Participation
Agreement or any other Operative Agreement or any indemnity hereafter granted
to the Owner Participant or the Owner Trustee in its individual capacity
pursuant to the Lease or the Participation Agreement, (ii) proceeds of public
liability insurance (or government indemnities in lieu thereof) in respect of
the Aircraft payable as a result of insurance claims paid for the benefit of,
or losses suffered by, the Owner Trustee or the Indenture Trustee in their
respective individual capacities or by the Owner Participant, or their
respective successors, permitted assigns or Affiliates, (iii) proceeds of
insurance maintained with respect to the Aircraft by the Owner Participant
(whether directly or through the Owner Trustee) maintained in accordance with
Section 13.05 of the Lease but not required under Article 13 of the Lease,
(iv) payments of Supplemental Rent by the Lessee in respect of any amounts
payable under the Tax Indemnity Agreement, (v) any purchase price paid to the
Owner Participant for its interest in the Trust Estate pursuant to Section
7.03(d) of the Participation Agreement, (vi) subject to Section 3.05 of the
Lease, payments constituting increases in Basic Rent attributable to payments
arising pursuant to Section 5 of the Tax Indemnity Agreement, (vii) any
payments in respect of interest to the extent attributable to payments
referred to in clauses (i) through (vi) above and (viii) any right to demand,
collect or otherwise receive and enforce the payment of any amount described
in clauses (i) through (v) and (vii) above (except with respect to interest
attributable to payments referred to in clause (vi) above).
Expense; Expenses. Have the meaning specified in Section 9.01(a) of
the Participation Agreement.
Fair Market Renewal Term. A term with respect to which the Lessee has
exercised its option to renew the Lease pursuant to the second paragraph of
Section 4.01(a) thereof and with respect to which the conditions set forth in
such Section 4.01(a) are met.
Fair Market Rental. An amount determined on the basis of, and equal
in amount to, the rental which would be obtained in an arm's-length
transaction between an informed and willing lessee and an informed and willing
lessor unaffiliated with such lessee, neither being under any compulsion to
lease. In such determination, it shall be assumed that the Aircraft is in the
condition required under the Lease in the case of return of the Aircraft
pursuant to Article 12 of the Lease and Fair Market Rental shall be determined
in accordance with the provisions of Section 4.03 of the Lease.
Fair Market Value. An amount determined on the basis of, and equal in
amount to, the value which would be obtained in an arm's-length transaction
between an informed and willing purchaser under no compulsion to buy and an
informed and willing seller unaffiliated with such purchaser and under no
compulsion to sell, assuming the Aircraft (or other property) is unencumbered
by the Lease. In such determination, except for purposes of Section 17.01 of
the Lease (when it shall be determined based upon the actual condition and
location of the Aircraft), it shall be assumed that the Aircraft is in the
condition required under the Lease in the case of return of the Aircraft
pursuant to Article 12 of the Lease and Fair Market Value shall be determined
in accordance with the provisions of Section 4.03 of the Lease.
Federal Aviation Administration; FAA. The United States Federal
Aviation Administration and any successor agency or agencies thereto.
Final Drawing. Has the meaning specified in Section 1.01 of the
Intercreditor Agreement.
Fixed Renewal Rent. Semi-annual payments of rent during the Fixed
Renewal Term equal to the lesser of (i) Fair Market Rental as determined as of
the commencement of such Fixed Renewal Term and (ii) 50% of the average actual
semi-annual Basic Rent payable during the Basic Term.
Fixed Renewal Term. The term with respect to which the Lessee has
exercised its option to renew the Lease pursuant to the first paragraph of
Section 4.01(a) thereof and with respect to which the conditions set forth in
such Section 4.01(a) are met.
FPO Price. Has the meaning set forth in Section 4.02(a)(F) of the
Lease.
French Pledge Agreement. The French Pledge Agreement dated as of May
1, 1997 between the Owner Trustee and the Indenture Trustee.
FSB. First Security Bank, National Association, a national banking
association.
Government. The United States of America or an agency or
instrumentality thereof the obligations of which bear the full faith and
credit of the United States of America.
GTA. The General Terms Agreement dated as of July 3, 1991 between the
Engine Manufacturer and the Lessee related to the purchase by the Lessee of the
Engines as originally executed or as modified, amended or supplemented in
accordance with the terms thereof, but only insofar as the General Terms
Agreement relates to the Engines, to the extent assigned to the Owner Trustee
pursuant to the Engine Warranty Assignment.
Holder of a Certificate; Certificate Holder; Holder. As of any
particular time, the Person in whose name a Certificate shall be registered
(but not including the holder of any Pass Through Certificate).
Indemnitee. Each of SSB, in its individual capacity and as Owner
Trustee and Lessor, the Subordination Agent, in its individual capacity and in
its capacity as Subordination Agent, each Liquidity Provider, the Owner
Participant, the Indenture Trustee, in its individual capacity and as trustee,
the Owner Participant Guarantor and any successor (including any trustee which
may succeed to the Lessor's interest under the Lease), Affiliate, assign,
officer, director, employee, agent and servant of any of the foregoing, the
Lessor's Estate and the Trust Indenture Estate. Neither the Pass Through
Trustee nor any holder of a Pass Through Certificate shall be deemed to be an
Indemnitee.
Indenture. The Trust Indenture and Security Agreement (Federal
Express Corporation Trust No. N672FE), dated as of May 1, 1997, between the
Lessor and the Indenture Trustee, as supplemented by the Indenture and
Security Agreement Supplement.
Indenture and Security Agreement Supplement. The Indenture and
Security Agreement Supplement No. 1 (Federal Express Corporation Trust No.
N672FE) to be dated the Delivery Date, substantially in the form of Exhibit A
to the Indenture.
Indenture Default. Any event or condition which, with the lapse of
time or the giving of notice, or both, would constitute an Indenture Event of
Default.
Indenture Documents. Has the meaning specified in the Granting
Clause of the Indenture.
Indenture Event of Default. Each of the events specified in Section
7.01 of the Indenture.
Indenture Trustee. First Security Bank, National Association, a
national banking association, not in its individual capacity but solely as
Indenture Trustee under the Indenture.
Indenture Trustee's Liens. Any Lien against, on or with respect to
the Aircraft, the Lessor's Estate or the Trust Indenture Estate or any part
thereof resulting from (i) claims against the Indenture Trustee not related to
the administration of the Trust Indenture Estate or any transactions pursuant
to the Indenture or any document included in the Trust Indenture Estate, (ii)
any act or omission of the Indenture Trustee which is not related to the
transactions contemplated by the Operative Agreements or is in violation of
any of the terms of the Operative Agreements or (iii) Taxes imposed against
the Indenture Trustee in its individual capacity in respect of which the Lessee
has not indemnified (and is not obligated to indemnify) the Indenture Trustee
in such capacity.
Independent Appraisal. An appraisal conducted pursuant to Section
4.03 of the Lease.
Independent Investment Banker. An independent investment banking
institution of national standing appointed by the Lessee that is independent
in fact, does not have any direct financial interests, or any material
indirect financial interest, in the Lessee or any Affiliate of the Lessee, and
is not connected with the Lessee or any Affiliate of the Lessee, as an
officer, employee, promoter, underwriter, trustee, partner, director or Person
performing similar functions; provided, that if the Indenture Trustee shall
not have received written notice of such an appointment at least 10 days prior
to the Prepayment Date, "Independent Investment Banker" shall mean such an
institution appointed by the Indenture Trustee.
Intercreditor Agreement. The Intercreditor Agreement dated as of May
1, 1997, among the Pass Through Trustee, the Class A Liquidity Provider, the
Class B Liquidity Provider and the Subordination Agent.
Interest Drawing. Has the meaning specified in Section 1.01 of the
Intercreditor Agreement.
Invoice. The invoice for the Aircraft given by AVSA to the Lessor.
Lease. The Lease Agreement (Federal Express Corporation Trust No.
N672FE) dated as of May 1, 1997, entered into by the Lessor and the Lessee
concurrently with the execution and delivery of the Indenture, including,
without limitation, supplementation by one or more Lease Supplements entered
into pursuant to the applicable provisions of the Lease.
Lease Supplement. The Lease Supplement No. 1 (Federal Express
Corporation Trust No. N672FE) to be dated the Delivery Date, substantially in
the form of Exhibit A to the Lease.
Lease Term. The period commencing on the Delivery Date and ending at
the end of the Basic Term.
Lessee. Federal Express Corporation, a Delaware corporation.
Lessee Documents. Has the meaning set forth in Section 6.01(b) of the
Participation Agreement.
Lessor. State Street Bank and Trust Company of Connecticut, National
Association, a national banking association, not in its individual capacity
but solely as Owner Trustee under the Trust Agreement.
Lessor's Estate. All estate, right, title and interest of the Owner
Trustee in and to the Collateral Account, the Liquid Collateral, the Aircraft,
the Lease, any Lease Supplement, the Participation Agreement, AVSA's FAA Bill
of Sale, AVSA's Warranty Bill of Sale, the Airbus Guaranty, the Purchase
Agreement, the Purchase Agreement Assignment, the Consent and Agreement, the
AVSA Consent and Agreement, the Consent and Guaranty (to the extent assigned
by the Purchase Agreement Assignment), any Ancillary Agreement, the GTA, the
Engine Warranty Assignment, the Engine Consent, any warranty with respect to
the Airframe and the Engines, all amounts of Basic Rent and Supplemental Rent,
including without limitation, insurance proceeds (other than insurance
proceeds payable to or for the benefit of the Owner Trustee in its individual
capacity or the Owner Participant) and requisition, indemnity or other
payments of any kind for or with respect to the Aircraft (except amounts owing
to the Owner Participant, to the Indenture Trustee, to the Owner Trustee in its
individual capacity, or to any of their respective directors, officers,
employees and agents pursuant to Articles 8 and 9 of the Participation
Agreement), and all other property of the Owner Trustee purportedly subjected
to the Lien of the Indenture by the Granting Clause thereof; provided that in
no event shall "Lessor's Estate" include any Excepted Payment.
Lessor's Liens. Liens against, on or with respect to the Aircraft,
the Lessor's Estate or the Trust Indenture Estate or any part thereof, title
thereto or any interest therein arising as a result of (i) claims against the
Lessor, in its individual capacity or as Owner Trustee, or the Owner
Participant, in each case not related to the transactions contemplated by the
Operative Agreements, (ii) acts or omissions of the Lessor in its individual
capacity or as Owner Trustee, and, in the case of the Lessor in its individual
capacity, arising from its gross negligence or willful misconduct or expressly
prohibited under the Operative Agreements and any act or omission of the Owner
Participant which is in violation of any of the terms of the Operative
Agreements, (iii) Taxes or Expenses imposed against the Lessor, in its
individual capacity or as Owner Trustee, Owner Participant, Lessor's Estate or
the trust created by the Trust Agreement which are not required to be
indemnified against by the Lessee pursuant to the Participation Agreement by
reason of Section 8.01(b) or 9.01(b) thereof and which are not required to be
indemnified against by the Lessee pursuant to the Tax Indemnity Agreement, or
(iv) claims against the Lessor or the Owner Participant arising from the
voluntary transfer by the Lessor or the Owner Participant of its interests in
the Aircraft other than a transfer of the Aircraft pursuant to Section 4.02(a)
or Article 10 or 11 of the Lease and other than a transfer pursuant to the
exercise of the remedies set forth in Article 17 of the Lease.
Lien. Any mortgage, pledge, lien, charge, encumbrance, lease or
security interest or other similar interest.
Liquid Collateral. All amounts and securities deposited from time to
time in the Collateral Account and all the products, investments, earnings and
proceeds of the foregoing, including, but not limited to, all proceeds of the
investment or conversion thereof, voluntary or involuntary, into cash,
Specified Investments or other property, all rights to payment of any and
every kind, and other forms of obligations, and instruments and other property
which at any time constitute all or part or are included in the proceeds of
any of the foregoing.
Liquidity Facility. Has the meaning specified in Section 1.01 of the
Intercreditor Agreement.
Liquidity Provider. Has the meaning specified in Section 1.01 of the
Intercreditor Agreement.
Losses. Has the meaning specified in Section 17.02(a) of the
Participation Agreement.
Loss Payee. Has the meaning specified in Section 13.02(b)(i) of the
Lease.
Majority in Interest of Certificate Holders. As of a particular date
of determination, the Holders of more than 50% of the aggregate unpaid
principal amount of all Certificates outstanding as of such date excluding for
purposes of this definition any Certificates held by (i) the Owner Trustee or
the Owner Participant or any interests of the Owner Participant unless all
Certificates then outstanding shall be held by the Owner Participant, (ii) the
Lessee or (iii) any Affiliate of any thereof.
Make-Whole Premium. An amount determined as of the day before the
applicable Prepayment Date (or date of purchase, as the case may be) which an
Independent Investment Banker determines to be equal to the excess, if any, of
(i) the present value of the remaining scheduled payments of such principal
amount or portion thereof and interest thereon (excluding interest accrued
from the immediately preceding Payment Date to such Prepayment Date or date of
purchase, as the case may be) to the Maturity of such Certificate in
accordance with generally accepted financial practices assuming a 360-day year
consisting of twelve 30-day months at a discount rate equal to the Treasury
Yield, all as determined by the Independent Investment Banker over (ii) the
outstanding principal amount of such Certificate plus accrued interest.
Manufacturer. Airbus Industrie G.I.E., a groupement d'interet
economique formed under the laws of France.
Maturity. With respect to any Certificate, the date on which the
final principal amount of such Certificate is scheduled to be due and payable.
Moody's. Moody's Investors Service, Inc.
Net Present Value of Rents. The net present value, as of the
Delivery Date, of Basic Rent set forth in Schedule II of the Lease, discounted
at a rate equal to the Debt Rate per annum compounded semi-annually.
Non-U.S. Person. Any Person other than a U.S. Person.
Obsolete Parts. Parts which are severable from the Aircraft in
accordance with clauses (ii) and (iii) of the proviso to Section 9.02(b) of
the Lease and the Lessee in good faith determines to be obsolete or no longer
suitable or appropriate for use on the Airframe or any Engine.
Officer's Certificate. When delivered pursuant to the Indenture, a
certificate signed by a Responsible Officer of the Lessee or the Owner
Trustee, as the case may be, and delivered to the Indenture Trustee. Each
such certificate shall include the statements provided for in Section 15.07 of
the Indenture.
Operative Agreements. The Participation Agreement, the Trust
Agreement, AVSA's FAA Bill of Sale, AVSA's Warranty Bill of Sale, the Airbus
Guaranty, the Purchase Agreement, the Purchase Agreement Assignment, the GTA,
the Engine Warranty Assignment, the French Pledge Agreement, the Lease, the
Lease Supplement, the Owner Participant Guaranty, the Owner Trustee Guaranty,
if any, any Ancillary Agreement entered into by or with the written consent of
the Indenture Trustee, which by its terms is an Operative Agreement, the
Certificates outstanding at the time of reference, the Indenture, the
Indenture and Security Agreement Supplement, the Consent and Agreement, the
AVSA Consent and Agreement, the Consent and Guaranty (to the extent assigned
by the Purchase Agreement Assignment), the Engine Consent, the Tax Indemnity
Agreement, each Liquidity Facility, the Intercreditor Agreement, the
Collateral Account Control Agreement and any Assignment and Assumption
Agreement.
Opinion of Counsel. When delivered pursuant to the Indenture, a
written opinion of legal counsel, who in the case of counsel (a) for the
Lessee may be (i) an attorney employed by the Lessee who is generally
empowered to deliver such written opinions, (ii) Davis Polk & Wardwell or a
successor firm or (iii) other counsel designated by the Lessee and reasonably
satisfactory to the Indenture Trustee and (b) for the Owner Trustee or the
Indenture Trustee, an attorney selected by such Person and, in the case of the
Owner Trustee, reasonably satisfactory to the Indenture Trustee.
Outstanding. When used with respect to Certificates, as of the date
of determination and subject to the provisions of Section 10.04 of the
Indenture, all Certificates theretofore executed and delivered under the
Indenture, with the exception of the following:
(i) Certificates theretofore cancelled by the Indenture Trustee or
delivered to the Indenture Trustee for cancellation pursuant to
Section 2.08 of the Indenture or otherwise;
(ii) Certificates for which prepayment money in the necessary amount
has been theretofore deposited with the Indenture Trustee in trust
for the Holders of such Certificates pursuant to Section 14.01 of the
Indenture; provided, that if such Certificates are to be prepaid,
notice of such prepayment has been duly given pursuant to the
Indenture or provision therefor satisfactory to the Indenture Trustee
has been made; and
(iii) Certificates in exchange for or in lieu of which other
Certificates have been executed and delivered pursuant to Article II
of the Indenture.
Owner Participant. The trustor originally named in the Trust
Agreement and any successor thereto, and any Person to which the Owner
Participant transfers, in accordance with the Trust Agreement, its right,
title and interest in and to the Operative Agreements and the Lessor's Estate.
Owner Participant Guarantor. Philip Morris Capital Corporation, a
Delaware corporation, and any other provider of an Owner Participant Guaranty.
Owner Participant Guaranty. The Owner Participant Guaranty dated the
Certificate Closing Date by the Owner Participant Guarantor in favor of the
Lessee, the Owner Trustee, the Indenture Trustee and the Pass Through Trustee,
and any guaranty delivered in compliance with Section 7.03(d) of the
Participation Agreement.
Owner Trustee. SSB, not in its individual capacity except as
otherwise expressly stated, but solely as Owner Trustee under the Trust
Agreement.
Owner Trustee Guarantor. The provider of an Owner Trustee Guaranty.
Owner Trustee Guaranty. Any guaranty delivered in compliance with
Section 11.01(b)(ii) of the Participation Agreement.
Owner's Economic Return. The Owner Participant's anticipated net
after-tax book yield and aggregate after-tax cash during the Basic Term
utilizing the multiple investment sinking fund method of analysis, computed on
the basis of the same methodology and assumptions as were utilized by the
Owner Participant in determining Basic Rent, Stipulated Loss Value and
Termination Value percentages, as the case may be, as such assumptions may be
adjusted for events which have been the basis of adjustments to Rent pursuant
to Section 3.04 of the Lease.
Participation Agreement. The Participation Agreement (Federal Express
Corporation Trust No. N672FE), dated as of May 1, 1997, among the Lessee, the
Owner Trustee not in its individual capacity except as otherwise expressly
provided therein, but solely as owner trustee, the Owner Participant, the
Indenture Trustee not in its individual capacity except as otherwise expressly
provided therein, but solely as indenture trustee, the Pass Through Trustee
not in its individual capacity except as otherwise expressly provided therein,
but solely as pass through trustee and the Subordination Agent not in its
individual capacity except as otherwise expressly provided therein, but solely
as subordination agent.
Parts. All appliances, parts, components, instruments, appurtenances,
accessories, furnishings and other equipment of whatever nature (other than
complete Engines or engines) which may from time to time be incorporated or
installed in or attached to the Airframe or any Engine or title to which
remains vested in the Lessor pursuant to Article 8 of the Lease.
Pass Through Agreement. The Pass Through Trust Agreement dated as of
May 1, 1997 between the Lessee and the Pass Through Trustee.
Pass Through Certificates. Any of the Pass Through Certificates,
1997-1-A, the Pass Through Certificates, 1997-1-B or the Pass Through
Certificates, 1997-1-C, in each case as issued by the related Pass Through
Trust; and "Pass Through Certificates" means all of the Pass Through
Certificates issued by each of the Pass Through Trusts.
Pass Through Closing Date. The Business Day on which the sale of the
Pass Through Certificates to the Underwriters pursuant to the Underwriting
Agreement takes place.
Pass Through Trust. The Federal Express Corporation 1997-1 Pass
Through Trust Class A, Federal Express Corporation 1997-1 Pass Through Trust
Class B and Federal Express Corporation 1997-1 Pass Through Trust Class C, in
each case formed pursuant to the related Series Supplement in accordance with
the Pass Through Agreement; and "Pass Through Trusts" means all of such Pass
Through Trusts.
Pass Through Trustee. First Security Bank, National Association, a
national banking association, in its capacity as Pass Through Trustee under
the Pass Through Agreement and each Pass Through Trust.
Past Due Rate. In respect of (A) any amount payable to the Owner
Participant or the Owner Trustee a rate per annum during the period from and
including the due date to but excluding the date on which such amount is paid
in full equal to 2% plus the Debt Rate and (B) any principal of or interest on
any Certificate or any other amount payable under the Indenture, any
Certificate or any other Operative Agreement that is not paid when due
(whether at Maturity, by acceleration, by optional or mandatory prepayment or
otherwise) to any Holder, the Indenture Trustee or the Pass Through Trustee, a
rate per annum during the period from and including the due date to but
excluding the date on which such amount is paid in full equal to (i) in the
case of any such amount payable to the Holder of any Certificate, 2% plus the
interest rate applicable to such Certificate and (ii) in the case of any other
such amount, 2% plus the Debt Rate.
Payment Date. Each January 15 and July 15 commencing on July 15,
1997.
Payment Default. Any event specified in Section 16.01(a) or 16.01(b)
of the Lease which with the giving of notice or lapse of time or both would
constitute an Event of Default.
Permitted Investments. Those investments enumerated in Section
23.01(a) (i), (ii), (iii) and (iv) of the Lease.
Person. Any individual, sole proprietorship, partnership, joint
venture, joint stock company, trust, unincorporated organization, association,
corporation, institution, entity or government (federal, state, local,
foreign or any agency, instrumentality, division or body thereof).
Preliminary Notice. Has the meaning specified in Section 4.01(a) of
the Lease.
Premium Termination Date. With respect to the Series A Certificates,
December 27, 2011, with respect to the Series B Certificates, February 5, 2010
and with respect to the Series C Certificates, March 22, 2007.
Prepayment Date. Has the meaning specified in Section 6.02(b) of the
Indenture.
Prepayment Price. Has the meaning specified in Section 6.02(b) of the
Indenture.
Principal Amount. With respect to a Certificate means the stated
original principal amount of such Certificate and, with respect to all
Certificates, means the aggregate stated original principal amounts of all
Certificates.
Property. Any right or interest in or to property of any kind
whatsoever, whether real, personal or mixed and whether tangible or intangible.
Proposed Termination Date. The proposed date of termination of the
Lease as specified by the Lessee in its notice given pursuant to Section 10.01
thereof.
Purchase Agreement. The Airbus A300-600R Freighter Purchase Agreement,
dated as of July 3, 1991 between AVSA and the Lessee, including all exhibits,
appendices and letter agreements attached thereto as originally executed or as
modified, amended or supplemented in accordance with the terms thereof, but
only to the extent that the foregoing relates to the Aircraft and to the
extent assigned pursuant to the Purchase Agreement Assignment.
Purchase Agreement Assignment. The Purchase Agreement Assignment
(Federal Express Corporation Trust No. N672FE), dated as of May 1, 1997 between
the Lessor and the Lessee.
Purchase Price. Has the meaning specified in Ancillary Agreement II.
Record Date. With respect to Payment Dates under the Indenture
(except a date for payment of defaulted interest), December 31 for January 15
Payment Dates and June 30 for July 15 Payment Dates, whether or not such date
is a Business Day.
Recourse Amount. Has the meaning specified in Section 17.10 of the
Participation Agreement.
Refinancing. A non-recourse loan to the Lessor arranged pursuant to
Section 15.01 of the Participation Agreement.
Register. Has the meaning set forth in Section 3.02 of the Indenture.
Registrar. Has the meaning set forth in Section 3.02 of the
Indenture.
Regulation D. Regulation D of the Board of Governors of the Federal
Reserve System (or any successor), as the same may be modified and
supplemented and in effect from time to time.
Related Indentures. Collectively, the Trust Indenture and Security
Agreement for each of Federal Express Corporation Trust Nos. N670FE, N671FE,
N673FE, N674FE, N583FE and N584FE, each dated as of May 1, 1997, between the
Owner Trustee and the Indenture Trustee, the Trust Indenture and Security
Agreement for Federal Express Corporation Trust No. N581FE, dated as of May 1,
1997, between Wilmington Trust Company, as owner trustee and the Indenture
Trustee, and the Trust Indenture and Security Agreement for Federal Express
Corporation Trust No. N587FE, dated as of December 1, 1996, as amended and
restated as of May 1, 1997, between Wilmington Trust Company, as owner trustee
and the Indenture Trustee.
Remaining Weighted Average Life. On a given date with respect to any
Certificate the number of days equal to the quotient obtained by dividing (i)
the sum of each of the products obtained by multiplying (a) the amount of each
then remaining scheduled payment of principal of such Certificate by (b) the
number of days from and including such prepayment date to but excluding the
dates on which each such payment of principal is scheduled to be made; by (ii)
the then outstanding principal amount of such Certificate.
Renewal Rent. The amount payable by the Lessee as rent in accordance
with Section 4.01 of the Lease during any Renewal Term.
Renewal Term. One or more terms with respect to which the Lessee has
exercised its option to renew the Lease pursuant to Section 4.01(a) thereof.
Rent. All payments due from the Lessee under the Lease as Basic Rent,
Renewal Rent and Supplemental Rent, collectively.
Rent Payment Date. November 19, 2020 and each January 15 and July 15
commencing on January 15, 1998.
Reoptimization Date. Has the meaning specified in Section 15.02(a)
of the Participation Agreement.
Replacement Aircraft. Any aircraft substituted for the Aircraft
pursuant to Section 11.03(a) of the Lease.
Replacement Airframe. Has the meaning set forth in Section 11.03 of
the Lease.
Replacement Engine. A General Electric CF6-80C2-A5F engine (or an
engine of the same or another manufacturer) of equal or greater value,
airworthiness, remaining useful life and utility as the Engine being replaced,
together with all Parts relating to such engine; provided, however, that if
such replacement engine is not a General Electric CF6-80C2-A5F engine, such
replacement engine must then be commonly used in the commercial aviation
industry on Airbus A300-600 airframes.
Responsible Officer. With respect to the Owner Trustee (except for
purposes of the Trust Agreement in which case the definition of Responsible
Officer set forth in Section 3.10 of the Trust Agreement is applicable) or the
Indenture Trustee, any officer in its Corporate Trust Administration, as the
case may be, designated by such Person to perform obligations under the
Operative Agreements, and with respect to any other party, any corporate
officer or (except in the case of the Owner Participant) other employee of a
party who, in the normal performance of his or her operational
responsibilities, with respect to the subject matter of any covenant,
agreement or obligation of such party pursuant to any Operative Agreement,
would have responsibility for and knowledge of such matter and the
requirements of any Operative Agreement with respect thereto.
S&P. Standard & Poor's Ratings Group.
Scheduled Delivery Date. The Delivery Date specified in the Delivery
Notice pursuant to Section 3.01 of the Participation Agreement.
SEC. The Securities and Exchange Commission of the United States and
any successor agencies or authorities.
Secured Obligations. Has the meaning specified in the Granting
Clause of the Indenture.
Securities Act. The Securities Act of 1933, as amended.
Series "A" or "Series A Certificates". Certificates issued and
designated as "Series A" under the Indenture, in the Principal Amount and
maturities and bearing interest as specified in Exhibit B to the Indenture
under the heading "Series A".
Series "B" or "Series B Certificates". Certificates issued and
designated as "Series B" under the Indenture, in the Principal Amount and
maturities and bearing interest as specified in Exhibit B to the Indenture
under the heading "Series B".
Series "C" or "Series C Certificates". Certificates issued and
designated as "Series C" under the Indenture, in the Principal Amount and
maturities and bearing interest as specified in Exhibit B to the Indenture
under the heading "Series C".
Series Supplement or Series Supplements. The Series Supplement
1997-1-A to be executed and delivered by the Lessee and the Pass Through
Trustee, the Series Supplement 1997-1-B to be executed and delivered by the
Lessee and the Pass Through Trustee or the Series Supplement 1997-1-C to be
executed and delivered by the Lessee and the Pass Through Trustee.
Sinking Fund Redemption Date. Has the meaning specified in Section
6.06 of the Indenture.
Sinking Fund Redemption Price. Has the meaning specified in Section
6.06 of the Indenture.
Special Aviation Counsel. Daugherty, Fowler & Peregrin.
Specified Investments. Shall mean (a) direct obligations of the
United States of America or obligations fully guaranteed by the United States
of America; (b) commercial paper rated A-1/P-1 by S&P and Moody's,
respectively or, if such ratings are unavailable, rated by any nationally
recognized rating organization in the United States equal to the highest
rating assigned by such rating organization; (c) investments in negotiable
certificates of deposit, time deposits, banker's acceptances, commercial paper
or other direct obligations of, or obligations guaranteed by, commercial banks
organized under the laws of the United States or of any political subdivision
thereof (or any U.S. branch of a foreign bank) with issuer ratings of at least
B/C by Thomson Bankwatch, having maturities no later than 90 days following
the date of such investment; (d) overnight federal funds transactions with
members of the Federal Reserve System arranged by federal funds brokers; or
(e) overnight repurchase agreements with respect to the securities described
in clause (a) above entered into with an office of a bank or trust company
which is located in the United States of America or any bank or trust company
which is organized under the laws of the United States or any state thereof
and has capital, surplus and undivided profits aggregating at least $500
million.
SSB. State Street Bank and Trust Company of Connecticut, National
Association, a national banking association.
Stipulated Loss Value. As of any Stipulated Loss Value Determination
Date during the Basic Term, the amount determined by multiplying the Purchase
Price by the percentage set forth in Schedule III of the Lease under the
heading "Stipulated Loss Value Factor" opposite such date (as such Schedule
III may be adjusted from time to time as provided in Section 3.04 of the
Lease), and during any Renewal Term, the amount determined pursuant to Section
4.01(b) of the Lease. Notwithstanding any other provisions of the Lease or
the Participation Agreement or the Indenture, each Stipulated Loss Value for
the Aircraft shall be, under any circumstances and in any event, an amount,
together with so much of the arrears portion of Basic Rent due and owing
through the date of payment of Stipulated Loss Value as does not constitute an
Excepted Payment, at least sufficient to pay in full as of such date of
payment the aggregate unpaid principal amount of and accrued interest on the
Certificates outstanding on such date of payment. Subject to the immediately
preceding sentence, it is understood and agreed that the amounts set forth on
Schedule III of the Lease, for dates other than Rent Payment Dates on which
arrears Basic Rent is due, fully reflect appropriate Basic Rent accruals and
credits of unearned Basic Rent through such date and, accordingly, no further
accrual or credit shall be required through such date whenever Stipulated Loss
Value is to be calculated with reference to any such date; provided that if
amounts in respect of Stipulated Loss Value are payable under the Operative
Agreements after the Stipulated Loss Determination Date in respect of which
such Stipulated Loss Value was determined, the Lessor shall be compensated
during the period from the Stipulated Loss Determination Date to such payment
date in accordance with the provisions of the Operative Agreements.
Stipulated Loss Value Determination Date. Each date set forth on
Schedule III of the Lease.
Subordination Agent. First Security Bank, National Association, a
national banking association, not in its individual capacity but solely as
Subordination Agent.
Supplemental Rent. (a) All amounts, liabilities and obligations
which the Lessee assumes or agrees to perform or pay under the Lease or under
the Participation Agreement or Tax Indemnity Agreement or any Ancillary
Agreement or any other Operative Agreement to the Lessor, the Owner
Participant, the Indenture Trustee, the Subordination Agent, any Liquidity
Provider or others, including, without limitation, payments of Stipulated Loss
Value, FPO Price and amounts calculated by reference to Termination Value, any
amounts of Make-Whole Premium payable under the Indenture to the extent
provided in Section 3.03 of the Lease, and all amounts required to be paid by
Lessee under the agreements, covenants and indemnities contained in the Lease
or in the Participation Agreement or the Tax Indemnity Agreement or any other
Operative Agreement, but excluding Basic Rent and (b) all amounts that the
Owner Trustee is obligated to pay in accordance with clause (b) of the last
paragraph of Section 2.04 of the Indenture.
Tax. Has the meaning set forth in Section 8.01(a) of the
Participation Agreement.
Tax Indemnity Agreement. The Tax Indemnity Agreement (Federal
Express Corporation Trust No. N672FE), dated as of May 1, 1997, between the
Lessee and the Owner Participant.
Term. The Basic Term of the lease for the Aircraft under the Lease
and, if renewed pursuant to Section 4.01 of the Lease, each Renewal Term for
the Aircraft for which the Lease is renewed, or such earlier date on which the
Lease is terminated pursuant to its terms.
Termination Date. A Rent Payment Date during the Basic Term that is
on or after December 31, 2004 in the case of Article 10 of the Lease, and in
the case of (i) Section 4.02(a)(A) of the Lease, the Rent Payment Date falling
on July 15, 2014, (ii) Section 4.02(a)(D) or (E) of the Lease, a Rent
Payment Date that is on or after the seventh anniversary of the Delivery Date
and (iii) Section 4.02(a)(F) of the Lease, the last day of the Basic Term.
Termination Value. As of any Termination Date, the amount determined
by multiplying the Purchase Price by the percentage set forth in Schedule IV
of the Lease under the heading "Termination Value Factor" opposite such
Termination Date (as such Schedule IV may be adjusted from time to time as
provided in Section 3.04 of the Lease). Notwithstanding any other provisions
of the Lease, the Participation Agreement or the Indenture, each Termination
Value shall be, under any circumstances and in any event, an amount, together
with so much of the arrears portion of Basic Rent due and owing through the
date of payment of any amount calculated by reference to Termination Value as
does not constitute an Excepted Payment, at least sufficient to pay in full as
of such date of payment the aggregate unpaid principal amount of and accrued
interest on the Certificates outstanding on such date of payment. Subject to
the immediately preceding sentence, it is understood and agreed that the
amounts set forth on Schedule IV of the Lease, for dates other than Rent
Payment Dates on which arrears Basic Rent is due, fully reflect appropriate
Basic Rent accruals and credits of unearned Basic Rent through such date and,
accordingly, no further accrual or credit shall be required through such date
whenever Termination Value is to be calculated with reference to any such
date; provided that if amounts in respect of Termination Value are payable
under the Operative Agreements after the Termination Date in respect of which
such Termination Value was determined, the Lessor shall be compensated during
the period from the Termination Date to such payment date in accordance with
the provisions of the Operative Agreements.
Transaction Costs. Those costs and expenses set forth in Section
10.01(a) of the Participation Agreement.
Transportation Code. Title 49 of the United States Code, as amended
and in effect on the date of the Lease or as subsequently amended, or any
successor or substituted legislation at the time in effect and applicable, and
the regulations promulgated pursuant thereto.
Treasury Yield. At the time of determination with respect to any
Certificate, the interest rate (expressed as a semi-annual equivalent and as a
decimal and, in the case of United States Treasury bills, converted to a bond
equivalent yield) determined to be the per annum rate equal to the semi-annual
yield to maturity for United States Treasury securities maturing on the
Average Life Date on such Certificate and trading in the public securities
markets either as determined by interpolation between the most recent weekly
average yield to maturity for two series of United States Treasury securities,
trading in public securities markets, (i) one maturing as close as possible to,
but earlier than, the Average Life Date of such Certificate and (ii) the other
maturing as close as possible to, but later than, the Average Life Date of
such Certificate. In each case as published in the most recent H.15(519) or,
if a weekly average yield to maturity for United States Treasury securities
maturing on the Average Life Date of such Certificate is reported on the most
recent H.15 (519), such weekly average yield to maturity as published in such
H.15(919). "H.15(519)" means the weekly statistical release designated as
such, or any successor publication, published by the Board of Governors of the
Federal Reserve System. The date of determination of a Make-Whole Premium
will be the third Business Day prior to the applicable prepayment date and the
"most recent H.15(519)" means the H.15(519) published prior to the close of
business on the third Business Day prior to the applicable prepayment date.
Trust Agreement. The Trust Agreement (Federal Express Corporation
Trust No. N672FE), dated as of May 1, 1997, between the Owner Participant and
the Owner Trustee in its individual capacity.
Trust Estate. The Lessor's Estate.
Trust Indenture Act. The Trust Indenture Act of 1939, as amended.
Trust Indenture Estate. All estate, right, title and interest of the
Indenture Trustee in and to any of the property, rights, interests and
privileges granted to the Indenture Trustee pursuant to the Granting Clause of
the Indenture, other than Excepted Payments and any and all other rights of
the Owner Trustee or the Owner Participant expressly reserved to the Owner
Trustee or the Owner Participant pursuant to the Indenture.
Underwriters. Morgan Stanley & Co. Incorporated, First Chicago
Capital Markets, Inc., Goldman, Sachs & Co. and J.P. Morgan & Co.
Underwriting Agreement. The Underwriting Agreement dated May 22, 1997
among the Lessee and the Underwriters.
United States, U.S. or US. The United States of America.
U.S. Air Carrier. Any United States air carrier as to which there is
in force a certificate issued pursuant to Section 41102(a) or Section 41103 of
the Transportation Code, and as to which there is in force an air carrier
operating certificate issued pursuant to Chapter 447 of the Transportation
Code and Part 121 of the regulations under such Transportation Code, for
aircraft capable of carrying ten (10) or more individuals or 6,000 pounds or
more of cargo, or which may operate as an air carrier by certification or
otherwise under any successor or substitute provision thereof or in absence
thereof.
U.S. Person. A Person described in Section 7701(a)(30) of the Code.
==============================================================================
TRUST AGREEMENT
(FEDERAL EXPRESS CORPORATION TRUST NO. N673FE)
Dated as of May 1, 1997
between
PMCC LEASING CORPORATION,
Trustor
and
STATE STREET BANK AND TRUST COMPANY OF CONNECTICUT,
NATIONAL ASSOCIATION,
Owner Trustee
COVERING ONE AIRBUS A300F4-605R AIRCRAFT
SERIAL NO. 780, REGISTRATION NO. N673FE
==============================================================================
Page
TABLE OF CONTENTS
PARTIES.................................................................... 1
RECITALS................................................................... 1
ARTICLE 1
THE LESSOR'S ESTATE
Section 1.01. Authorization and Direction to Owner Trustee............. 1
Section 1.02. Declaration of Trust..................................... 2
Section 1.03. Conditions Precedent..................................... 2
ARTICLE 2
DISTRIBUTIONS
Section 2.01. Predelivery Funding; Rent, Etc........................... 2
Section 2.02. Excepted Payments........................................ 3
Section 2.03. Distributions after Release of Lien of Indenture......... 3
Section 2.04. Manner of Making Distributions........................... 4
ARTICLE 3
THE OWNER TRUSTEE
Section 3.01. Acceptance of Trust and Duties........................... 5
Section 3.02. Limitation on Authority of Owner Trustee................. 5
Section 3.03. Notice of Default........................................ 5
Section 3.04. Action Upon Instructions................................. 6
Section 3.05. Certain Duties and Responsibilities of Owner Trustee..... 6
Section 3.06. Certain Rights of Owner Trustee.......................... 7
Section 3.07. No Representations or Warranties as to Certain Matters... 9
Section 3.08. Status of Moneys Received................................ 10
Section 3.09. Self-Dealing............................................. 10
Section 3.10. Definition of a Responsible Officer...................... 10
Section 3.11. Resignation or Removal of Owner Trustee.................. 10
Section 3.12. Estate and Rights of Successor Owner Trustee............. 11
Section 3.13. Merger or Consolidation of SSB........................... 11
Section 3.14. Co-Trustees.............................................. 12
Section 3.15. Interpretation of Agreements............................. 13
Section 3.16. Not Acting in Individual Capacity........................ 13
Section 3.17. Books and Records; Tax Returns........................... 13
ARTICLE 4
TERMINATION OF TRUST
Section 4.01. Termination.............................................. 14
Section 4.02. Termination at Option of the Trustor..................... 15
Section 4.03. Distribution of Lessor's Estate upon Termination......... 15
ARTICLE 5
[RESERVED]
ARTICLE 6
MISCELLANEOUS
Section 6.01. Indemnification.......................................... 16
Section 6.02. Limitations on the Trustor's Liability................... 17
Section 6.03. Fees; Compensation....................................... 17
Section 6.04. Supplements and Amendments............................... 17
Section 6.05. Nature of Title of Trustor............................... 17
Section 6.06. Power of Owner Trustee to Convey......................... 17
Section 6.07. Notices.................................................. 18
Section 6.08. Situs of Trust; Applicable Law; Severability............. 19
Section 6.09. Successors and Assigns................................... 19
Section 6.10. Headings and Table of Contents........................... 19
Section 6.11. Identification of Trust.................................. 19
Section 6.12. Counterparts............................................. 19
Section 6.13. Trustor Interest......................................... 19
Section 6.14. Performance by the Trustor............................... 19
Schedule I Definitions
TRUST AGREEMENT
(FEDERAL EXPRESS CORPORATION TRUST NO. N673FE)
TRUST AGREEMENT (FEDERAL EXPRESS CORPORATION TRUST NO. N673FE) dated
as of May 1, 1997 (this "Agreement") between STATE STREET BANK AND TRUST
COMPANY OF CONNECTICUT, NATIONAL ASSOCIATION, a national banking association
(in its individual capacity, "SSB", and not in its individual capacity but
solely as trustee hereunder, the "Owner Trustee"), and PMCC LEASING
CORPORATION, a Delaware corporation (together with its successors and permitted
assigns, the "Trustor"). The capitalized terms used herein, unless otherwise
herein defined or the context hereof shall otherwise require, shall have the
respective meanings set forth in Schedule I attached hereto.
W I T N E S S E T H :
-------------------
WHEREAS, the Trustor desires to create a trust for the purpose of
issuing Certificates, the proceeds of which issuance shall initially be held
by the Indenture Trustee on behalf of the Owner Trustee in the Collateral
Account and released, subject to the proviso to Section 3.02(a) of the
Participation Agreement, on the Delivery Date in order to finance a portion of
the Purchase Price of the Aircraft, to acquire the Aircraft from AVSA on the
Delivery Date, to lease the Aircraft to the Lessee on the Delivery Date and to
receive the benefits provided for herein.
WHEREAS, SSB is willing to accept the trust as herein provided and to
perform its obligations hereunder in its individual capacity or as the Owner
Trustee as the case may be.
NOW THEREFORE, in consideration of the mutual covenants and agreements
contained herein, SSB and the Trustor agree as follows:
ARTICLE 1
THE LESSOR'S ESTATE
Section 1.01. Authorization and Direction to Owner Trustee. The
Trustor hereby authorizes and directs (or has authorized and directed) the
Owner Trustee, not individually but solely as the Owner Trustee hereunder:
(a) to execute and deliver as and when specified in Sections 4.01
and 4.02 of the Participation Agreement and each of the other Operative
Agreements to which the Owner Trustee is a party and to enter into and
perform the transactions contemplated thereby including, without
limitation, accepting title to, and delivery of, the Aircraft from AVSA on
the Delivery Date, and taking all appropriate action to cause the Airframe
to be registered with the Federal Aviation Administration in the name of
the Owner Trustee;
(b) to execute and deliver from time to time the Certificates in the
manner and subject to the terms and conditions provided in the
Participation Agreement and the Indenture;
(c) to execute and deliver each other document referred to in the
Operative Agreements to which the Owner Trustee is a party or which the
Owner Trustee is required to deliver pursuant to the Operative Agreements;
(d) subject to the terms of this Agreement, to perform the
obligations and duties and, upon instruction of the Trustor, exercise the
rights of the Owner Trustee under the Operative Agreements; and
(e) to execute and deliver all such other instruments, documents or
certificates and take all such other actions in accordance with the
directions of the Trustor, as the Trustor may deem necessary or advisable
in connection with the Certificate Closing Date and the Delivery Date and
the transactions contemplated hereby, the taking of any such action by the
Owner Trustee in the presence of the Trustor or its counsel to evidence,
conclusively, the direction of the Trustor.
Section 1.02. Declaration of Trust. SSB hereby declares and agrees,
in its individual capacity, that it will, and in its capacity as the Owner
Trustee does, hold the Lessor's Estate upon the trust herein set forth for the
use and benefit of the Trustor, subject, however, to the provisions of, and
the Lien created by, the Indenture. This Agreement is not intended by the
Trustor to create, and the trust created hereby is not intended by the Trustor
and the other parties interested herein to constitute a business trust for
purposes of the Bankruptcy Code.
Section 1.03. Conditions Precedent. The right and obligation of the
Owner Trustee to take the actions required by Section 1.01 hereof shall be
subject to the condition that the terms and conditions of Section 4.01 or
4.02, as the case may be, of the Participation Agreement shall have been
complied with in a manner satisfactory to the Owner Trustee and the Trustor.
ARTICLE 2
DISTRIBUTIONS
Section 2.01. Predelivery Funding; Rent, Etc. (a) The Trustor and
the Owner Trustee acknowledge that the proceeds from the sale of the
Certificates to be effected on the Certificate Closing Date are to be held by
the Indenture Trustee in the Collateral Account in the manner specified in the
Indenture for application as provided therein and in Section 3.02 of the
Participation Agreement.
(b) The Trustor and the Owner Trustee acknowledge that the
Lease will be security for the Certificates pursuant to the Indenture which
provides that all moneys payable by the Lessee to the Owner Trustee under the
Lease (other than Excepted Payments) are to be first paid to the Indenture
Trustee while the Lien of the Indenture is in effect, for distribution in
accordance with the terms of Article V of the Indenture. Except for amounts
received from the Indenture Trustee, which shall be applicable only in
accordance with clause (iii) below, the Owner Trustee shall promptly apply
each payment of the Rent (other than Excepted Payments), Stipulated Loss
Value, Termination Value, and any proceeds from the sale, requisition or
disposition of the Aircraft received by it as follows:
(i) prior to the release of the Lien of the Indenture, each such
payment shall be payable directly to the Indenture Trustee (and if any of
the same are received by the Owner Trustee shall, upon receipt, be paid
over to the Indenture Trustee without deduction, set off or adjustment of
any kind) for distribution in accordance with the provisions of Article V
of the Indenture; provided, that any payments received by the Owner Trustee
from (x) the Lessee with respect to SSB's or the Owner Trustee's fees and
disbursements under this Agreement, or (y) the Trustor pursuant to Section
6.01 hereof shall not be paid over to the Indenture Trustee but shall be
retained by the Owner Trustee and applied toward the purpose for which such
payments were made;
(ii) after the release of the Lien of the Indenture, any amount
remaining after application in full in accordance with paragraph (b)(i) of
this Section 2.01 and which represents payments for which provision as to
the application thereof is made in any other Operative Agreement shall be
applied promptly to the purpose for which such payment shall have been made
in accordance with the terms of such Operative Agreement; and
(iii) after application in accordance with paragraphs (i) and (ii) of
this Section 2.01(b), or to the extent received from the Indenture Trustee
under the terms of the Indenture, the balance, if any, remaining shall be
paid to the Trustor.
Section 2.02. Excepted Payments. Notwithstanding any other provision
contained herein, all Excepted Payments at any time received by the Owner
Trustee shall be distributed promptly to the applicable Person entitled
thereto, and such payment shall not be deemed under any circumstances to be
part of the Lessor's Estate.
Section 2.03. Distributions after Release of Lien of Indenture.
Except as otherwise provided in Sections 2.01 and 2.02 hereof:
(a) all payments received and amounts realized by the Owner
Trustee under the Lease or otherwise with respect to the Aircraft or
any part thereof (including, without limitation, all payments
received pursuant to Section 17.01 of the Lease and amounts realized
upon the sale or lease of the Aircraft or any part thereof after the
termination of the Lease with respect thereto), to the extent
received or realized at any time after the Lien of the Indenture
shall have been released pursuant to the terms of the Indenture, and
(b) moneys not included in paragraph (a) of this Section 2.03
remaining as part of the Lessor's Estate after the Lien of the
Indenture has been released,
shall, to the extent required, be retained by the Owner Trustee as
reimbursement for all expenses hereunder or under the Lease not theretofore
reimbursed under this Agreement, the Lease or otherwise and to which the Owner
Trustee is entitled to be reimbursed pursuant to the provisions thereof, and
any balance remaining thereafter shall be distributed to the Trustor.
Section 2.04. Manner of Making Distributions. The Owner Trustee
shall make distributions or cause distributions to be made to (i) the Trustor
pursuant to this Article 2 by transferring by wire transfer in immediately
available funds the amount to be distributed to the account set forth in the
Participation Agreement or to such other account or accounts of the Trustor as
it may designate from time to time by written notice to the Owner Trustee (and
the Owner Trustee shall use best efforts to cause such funds to be transferred
by wire transfer on the same day as received, but in any case not later than
the next succeeding Business Day), and (ii) the Indenture Trustee pursuant to
this Article 2 by paying the amount to be distributed to the Indenture Trustee
in the manner specified in the Indenture; provided, that the Owner Trustee
shall invest overnight, for the benefit of the Trustor, in investments that
would be permitted by Article 23 of the Lease (but only to the extent funds
are received on or prior to 2:00 P.M. (Eastern Time) and such investments are
available and, if such investments are not available to the Owner Trustee in
investments which, after consultation with the Trustor, the Trustor shall
direct) all funds not transferred by wire transfer on the same day as they
were received. Notwithstanding the foregoing but subject always to the
provisions of, and the Lien created by, the Indenture, the Owner Trustee will,
if so requested by the Trustor by written notice, pay in immediately available
funds any and all amounts payable by the Owner Trustee hereunder to the
Trustor as directed by the Trustor.
ARTICLE 3
THE OWNER TRUSTEE
Section 3.01. Acceptance of Trust and Duties. SSB accepts the trust
hereby created and, subject to Section 1.03 hereof, in its capacity as the
Owner Trustee agrees to perform the same, including without limitation,
subject to Section 1.03 hereof, the actions specified in Section 1.01 hereof
as herein provided. The Owner Trustee agrees to disburse all monies that it
receives under the Operative Agreements in accordance with the terms hereof.
The Owner Trustee shall not be answerable or accountable in its individual
capacity except as a result of or arising from (a) the Owner Trustee's willful
misconduct or gross negligence (in its individual capacity or as trustee), (b)
any breach by the Owner Trustee of its representations, warranties and
covenants given in its individual capacity in this Agreement, Article 5 of the
Lease, Sections 7.02(a) and (b) and 7.04 of the Participation Agreement or its
representations, warranties and covenants given in its individual capacity in
Sections 3.05 and 3.08 of the Indenture, (c) the failure to use ordinary care
in receiving, handling and disbursing funds, (d) Lessor's Liens attributable
to it in its individual capacity, and (e) taxes, fees, or other charges on,
based on, or measured by, any fees, commissions or compensation received by
SSB or the Owner Trustee in connection with the transactions contemplated by
the Lease, the Indenture and the Operative Agreements including this Agreement.
Section 3.02. Limitation on Authority of Owner Trustee. The Owner
Trustee shall have no power, right, duty or authority to, and agrees that it
will not, manage, control, possess, use, sell, lease, dispose of or otherwise
deal with the Aircraft, Airframe, Engines, any Part thereof or any other
property at any time constituting a part of the Lessor's Estate, or otherwise
to take or refrain from taking any action under or in connection with the
Operative Agreements, except (i) to execute and deliver the Operative
Agreements to which it is a party, (ii) to exercise and carry out or cause to
be exercised or carried out the rights, duties and obligations of the Owner
Trustee hereunder and under the other Operative Agreements, or (iii) as
expressly provided in written instructions from the Trustor given pursuant to
Section 3.03 or 3.04 hereof; provided, that nothing in this Section 3.02 shall
limit in any manner the obligations of the Owner Trustee hereunder.
Section 3.03. Notice of Default. In the event that a Responsible
Officer in the Corporate Trust Department of the Owner Trustee shall have
actual knowledge of a Default or an Event of Default, or an Indenture Default
or an Indenture Event of Default, the Owner Trustee shall give or cause to be
given to the Trustor and the Indenture Trustee prompt telephone or facsimile
notice, followed by prompt confirmation thereof by certified mail, postage
prepaid (in any event within two Business Days of the discovery thereof), in
accordance with Article 14 of the Participation Agreement, of such Default,
Event of Default, Indenture Default or Indenture Event of Default. Subject to
the terms of Section 3.06(e) hereof and the rights of the Indenture Trustee
under the Indenture, the Owner Trustee shall take such action with respect to
such Default, Event of Default, Indenture Default or Indenture Event of
Default as shall be specified in written instructions from the Trustor;
provided that the Owner Trustee shall have no duty to take any (and shall take
no) action whatsoever in the absence of written instructions from the Trustor.
For all purposes of this Agreement and the Lease, in the absence of actual
knowledge of a Responsible Officer of the Owner Trustee, the Owner Trustee
shall not be deemed to have knowledge of a Default, Event of Default,
Indenture Default or Indenture Event of Default unless notified in writing by
the Lessee, the Trustor, the Indenture Trustee or any Certificate Holder.
Section 3.04. Action Upon Instructions. Upon the written
instructions at any time and from time to time of the Trustor, the Owner
Trustee will take or refrain from taking such action, not inconsistent with
provisions of the Indenture, as may be specified in such instructions.
Section 3.05. Certain Duties and Responsibilities of Owner Trustee.
(a)(i) The Owner Trustee undertakes to perform such duties and only such
duties as are specifically set forth herein, and with the degree of care
specified in Section 3.01 hereof, and in accordance with written instructions
given by the Trustor hereunder, and no implied duties, covenants or
obligations shall be read into this Agreement, any such instructions or the
Operative Agreements against the Owner Trustee, and the Owner Trustee agrees
that it will not manage, control, possess, use, sell, lease, dispose of or
otherwise deal with the Aircraft or any part of the Lessor's Estate except as
required by the terms of the Operative Agreements, any such instructions and as
otherwise provided herein; and
(ii) in the absence of bad faith on its part, the Owner Trustee may
conclusively rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon certificates or opinions furnished to
the Owner Trustee and conforming to the requirements of this Agreement or
the other Operative Agreements, but in the case of any such certificates or
opinions which by any provisions hereof or thereof are specifically
required to be furnished to the Owner Trustee, the Owner Trustee shall be
under a duty to examine the same to determine whether or not they conform
to the requirements of this Trust Agreement or the Operative Agreements.
(b) No provision hereof shall require SSB in its individual capacity
to expend or risk its own funds or otherwise incur any financial liability in
the performance of any of its duties hereunder, 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 or liability
is not reasonably assured to it. Notwithstanding the foregoing, SSB agrees in
its individual capacity that it will, at its own cost and expense, promptly
take such action as may be necessary to discharge duly all Lessor's Liens
attributable to it in its individual capacity and will claim no indemnity
therefor hereunder, or under the Participation Agreement or any Operative
Agreement.
(c) Whether or not therein expressly so provided, every provision of
this Agreement relating to the conduct or affecting the liability of or
affording protection to the Owner Trustee shall be subject to the provisions
of this Section 3.05, except that in the event of a conflict between this
Section 3.05 and Section 3.01 hereof, Section 3.01 hereof shall be controlling.
(d) The Owner Trustee will furnish to the Trustor, promptly upon
receipt thereof, duplicates or copies of all reports, notices, requests,
demands, certificates, financial statements and any other instruments
furnished to the Owner Trustee hereunder or under the other Operative
Agreements (including those furnished to the Indenture Trustee pursuant to the
terms of the Indenture) and not otherwise furnished to the Trustor.
(e) Notwithstanding anything herein to the contrary, the Owner Trustee
shall not be authorized and shall have no power to "vary the investment" of the
Trustor within the meaning of Treasury Regulations Section 301.7701-4(c)(1),
it being understood that the Owner Trustee shall have the power and authority
to fulfill its obligations under Section 2.06 hereof and Article 23 of the
Lease.
Section 3.06. Certain Rights of Owner Trustee. Except as otherwise
provided in Section 3.05 hereof:
(a) in the absence of bad faith on its part, the Owner Trustee may
rely and shall be protected in acting or refraining from acting upon any
resolution, certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order or other paper or document reasonably
believed by it to be genuine and to have been signed or presented by the
proper party or parties;
(b) any request, direction or authorization by the Trustor or any
other party to any other Operative Agreement shall be sufficiently
evidenced by a request, direction or authorization in writing, delivered to
the Owner Trustee, and signed in the name of such party by any of the
Chairman of the Board, the President, any Vice President, the Treasurer or
Assistant Treasurer or the Secretary or Assistant Secretary or other duly
authorized officer of such party; and any resolution of the Board of
Directors or committee thereof of such party shall be sufficiently
evidenced by a copy of such resolution certified by the Secretary or an
Assistant Secretary of such party, to have been duly adopted and to be in
full force and effect on the date of such certification, and delivered to
the Owner Trustee;
(c) whenever in the administration of this Agreement the Owner Trustee
shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder or under any of the
other Operative Agreements, the Owner Trustee (unless other evidence be
herein or therein specifically prescribed), absent actual knowledge of a
Responsible Officer of the Owner Trustee to the contrary, may rely in good
faith upon a certificate in writing, delivered to the Owner Trustee and
signed by any of the Chairman of the Board, the President, any Vice
President, the Treasurer or Assistant Treasurer or the Secretary or
Assistant Secretary of the Lessee, the Trustor, or the Indenture Trustee
and notice of such need for such proof or establishment shall be delivered
to the Trustor, who may advise the Owner Trustee in respect of such matter
and the Owner Trustee shall act in conformity with such advice;
(d) the Owner Trustee may exercise its powers and perform its duties
by or through such attorneys, agents and servants as it shall appoint with
due care, and it shall be entitled to rely upon the advice of counsel
reasonably selected by it with due care and shall be protected by the
advice of such counsel in anything done or omitted to be done in accordance
with such advice;
(e) the Owner Trustee shall not be under any obligation to take any
action under this Agreement or under any of the other Operative Agreements
at the request or direction of the Trustor unless the Persons making such
request or direction shall have offered to the Owner Trustee reasonable
security or indemnity against the costs, expenses and liabilities which
might be incurred by it in compliance with such request or direction; nor
shall the Owner Trustee be required to take any action deemed to impose on
the Owner Trustee any obligation to take any action, if the Owner Trustee
shall have been advised by its counsel that such action is unlawful or is
contrary to the terms of this Agreement or the other Operative Agreements;
(f) the Owner Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order or
other paper or document unless a Responsible Officer of the Owner Trustee
has actual knowledge that the facts or matters stated therein are false or
inaccurate, but the Owner Trustee in its discretion may make such further
inquiry or investigation into such facts or matters as it may see fit, and,
if the Owner Trustee shall determine to make such further inquiry or
investigation, it shall be entitled, to the same extent permitted to the
Lessor under the Lease, to examine the books and records of the Lessee to
reasonably determine whether the Lessee is in compliance with the terms and
conditions of the Lease and to examine the Aircraft, Airframe, Engines or
any Part thereof personally or by agent or attorney; and
(g) without limiting the generality of Section 3.05 hereof, except as
otherwise provided in written instructions given to the Owner Trustee by the
Trustor or as otherwise provided in the Indenture or the Participation
Agreement, the Owner Trustee shall not have any duty (i) to see to any
recording or filing of the Lease or of this Agreement or any financing
statement or other notice or document relating thereto or contemplated
under the Operative Agreements or to see to the maintenance of any such
recording or filing (other than FAA reporting requirements contained in 14
C.F.R. Sections 47.45 and 47.51), (ii) to see to any insurance on the
Aircraft or any part thereof or to effect or maintain any such insurance,
whether or not the Lessee shall be in default with respect thereto, other
than to forward to the Trustor and (to the extent provided in the
Indenture) the Indenture Trustee copies of all certificates, reports and
other written information which it receives from the Lessee pursuant to the
Lease, (iii) to see to the payment or discharge of any tax, assessment or
other governmental charges or any Lien (except any Lessor's Lien
attributable to it in its individual capacity) owing with respect to, or
assessed or levied against any part of the Lessor's Estate, (iv) to confirm
or verify any financial statements or reports of the Lessee, or (v) to
inspect the Aircraft at any time or ascertain or inquire as to the
performance or observance of any of the Lessee's covenants under the Lease.
Section 3.07. No Representations or Warranties as to Certain
Matters. NEITHER THE OWNER TRUSTEE NOR SSB MAKES OR SHALL BE DEEMED TO HAVE
MADE (a) ANY REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, AS TO THE TITLE,
AIRWORTHINESS, VALUE, CONDITION, WORKMANSHIP, DESIGN, COMPLIANCE WITH
SPECIFICATIONS, CONSTRUCTION, OPERATION, MERCHANTABILITY OR FITNESS FOR USE
FOR A PARTICULAR PURPOSE OF THE AIRCRAFT, AS TO THE ABSENCE OF LATENT OR OTHER
DEFECTS, WHETHER OR NOT DISCOVERABLE, AS TO THE ABSENCE OF ANY INFRINGEMENT OF
ANY PATENT, TRADEMARK OR COPYRIGHT, AS TO THE ABSENCE OF OBLIGATIONS BASED ON
STRICT LIABILITY IN TORT, OR ANY OTHER REPRESENTATION OR WARRANTY WHATSOEVER,
EXPRESS OR IMPLIED, WITH RESPECT TO THE AIRCRAFT OR ANY PART THEREOF, except
that SSB represents and warrants that on the Delivery Date the Owner Trustee
shall have received whatever right, title and interests in, to and under the
Aircraft that were conveyed to it by AVSA and SSB represents, warrants and
covenants that at all times on and after the Delivery Date the Aircraft shall
be free of all Lessor's Liens attributable to it, and that the Owner Trustee
shall comply with the last sentence of Section 3.05(b) hereof, or (b) any
representation or warranty as to the validity, legality or enforceability of
this Agreement or any other Operative Agreement to which the Owner Trustee is
a party, or any other document or instrument, or as to the correctness of any
statement contained in any thereof, except to the extent that any such
representation, warranty or statement is expressly made herein or therein as a
representation or warranty by the Owner Trustee or SSB and except that SSB
hereby represents and warrants that this Agreement has been, and (assuming the
due authorization, execution and delivery of this Agreement by the Trustor)
the other Operative Agreements to which the Owner Trustee is a party have been
(or at the time of execution and delivery of any such instrument by the Owner
Trustee hereunder or pursuant to the terms of the Participation Agreement that
such an instrument will be) duly executed and delivered by one of its officers
who is or will be, as the case may be, duly authorized to execute and deliver
such instruments on behalf of the Owner Trustee and that this Agreement has
been duly authorized, executed and delivered by SSB and (assuming due
authorization, execution and delivery of this Trust Agreement by the Trustor)
constitutes the legal, valid and binding obligation of SSB enforceable against
it in accordance with its terms, except as such enforceability may be limited
by bankruptcy, insolvency, reorganization, moratorium or other similar laws
affecting the rights of creditors generally and by general principles of
equity.
Section 3.08. Status of Moneys Received. All moneys received by the
Owner Trustee under or pursuant to any provision of this Agreement or any
Operative Agreement shall constitute trust funds for the purpose for which
they were paid or are held, but need not be segregated in any manner from any
other moneys except to the extent required by law and may be deposited by the
Owner Trustee under such conditions as may be prescribed or permitted by law
for trust funds, or may be invested in direct obligations of the United States.
Section 3.09. Self-Dealing. The Owner Trustee in its individual
capacity, or any corporation in or with which the Owner Trustee may be
interested or affiliated, or any officer or director of any such corporation,
may have normal commercial relations, and otherwise deal, in the ordinary
course of business, with the Lessee or any other corporation having relations
with the Lessee to the full extent permitted by law.
Section 3.10. Definition of a Responsible Officer. For purposes of
this Trust Agreement only, "Responsible Officer" when used with respect to the
Owner Trustee means the Chairman or the Vice-Chairman of the Board of
Directors, the Chairman or Vice-Chairman of the Executive Committee of the
Board of Directors, the President, any Vice President (whether or not
designated by a number or a word or words added before or after the title
"Vice President"), the Secretary, any Assistant Secretary, or any other
officer in the Corporate Trust Department of SSB customarily performing
functions similar to those performed by any of the above designated officers.
Section 3.11. Resignation or Removal of Owner Trustee. The Owner
Trustee or any successor thereof (a) shall resign if required to do so
pursuant to Section 7.02(b) of the Participation Agreement and (b) may resign
at any time without cause by giving at least 60 days' prior written notice to
the Trustor and the Indenture Trustee, such resignation in each case to be
effective only upon the appointment of a successor trustee and the acceptance
of such appointment by such successor. In addition, the Trustor may at any
time remove the Owner Trustee without cause by an instrument in writing
delivered to the Owner Trustee and the Indenture Trustee, such removal to be
effective only upon the appointment by the Trustor of a successor Owner
Trustee and the acceptance of such appointment by such successor. Upon the
giving of notice of resignation or removal of the Owner Trustee, the Trustor
may appoint a successor Owner Trustee by an instrument signed by the Trustor.
If the Trustor shall not have so appointed a successor Owner Trustee within 30
days after such resignation or removal, the Owner Trustee, the Indenture
Trustee or the Trustor may apply to any court of competent jurisdiction to
appoint a successor Owner Trustee to act until such time, if any, as a
successor or successors shall have been appointed by the Trustor as above
provided. Any successor Owner Trustee so appointed by a court shall be
superseded by any successor Owner Trustee subsequently appointed by the
Trustor.
The appointment of any successor Owner Trustee shall be subject to the
conditions set forth in Section 11.01 of the Participation Agreement.
Section 3.12. Estate and Rights of Successor Owner Trustee. Any
successor Owner Trustee, however appointed, shall execute and deliver to the
predecessor Owner Trustee, with a copy to the Trustor and the Indenture
Trustee, an instrument accepting such appointment, in form and substance
acceptable to the predecessor Owner Trustee and the Trustor and thereupon each
successor Owner Trustee, without further act, shall become vested with all the
estates, properties, rights, powers, duties and trust of the predecessor Owner
Trustee in the trust hereunder with like effect as if originally named as an
Owner Trustee herein, but nevertheless upon the written request of such
successor Owner Trustee, such predecessor Owner Trustee shall execute and
deliver an instrument transferring to such successor Owner Trustee, upon the
trust herein expressed, all estates, properties, rights, powers, duties,
property or moneys then held by such predecessor Owner Trustee upon the trust
herein expressed. Upon any such transfer by a predecessor Owner Trustee, such
predecessor Owner Trustee shall provide the successor Owner Trustee and
Trustor an accounting of the Lessor's Estate and the trust hereunder.
Upon the appointment of any successor Owner Trustee hereunder, the
predecessor Owner Trustee will use its best efforts to cause registration of
the Aircraft included in the Lessor's Estate to be transferred upon the
records of the Aeronautics Authority or other registry where the Aircraft may
then be registered into the name of the successor Owner Trustee and shall
otherwise use its best efforts to comply, or assist the successor Owner
Trustee in complying, with the provisions of Section 11.01 of the
Participation Agreement.
Section 3.13. Merger or Consolidation of SSB. Any corporation into
which SSB in its individual capacity may be merged or with which it may be
consolidated, or any corporation resulting from any merger or consolidation to
which SSB shall be a party, or any corporation to which substantially all the
business of the Owner Trustee in its individual capacity may be transferred,
shall, subject to Section 11.01 of the Participation Agreement, be the Owner
Trustee under this Agreement without further act; provided, that such
corporation shall not also be the Indenture Trustee.
Section 3.14. Co-Trustees. At any time, if the Owner Trustee or the
Trustor shall deem it necessary or prudent or desirable in order to conform to
legal requirements of any jurisdiction in which any part of the Lessor's
Estate may at the time be located, the Owner Trustee by an instrument in
writing signed by it, shall appoint one or more Persons approved by the
Trustor to act as co-trustee, or co-trustees, jointly with the Owner Trustee,
or separate trustee or separate trustees (except insofar as local law makes it
necessary or prudent or desirable for any such co-trustee or separate trustee
to act alone), of all or any part of the Lessor's Estate, and to vest in such
Person or Persons, in such capacity, such title to the Lessor's Estate or any
part thereof, and such rights, powers, duties, trusts or obligations as the
Trustor may consider necessary or prudent or desirable. The Owner Trustee
shall not be liable for any act or omission of any co-trustee or separate
trustee appointed under this Section 3.14. No appointment of, or action by,
any co-trustee or separate trustee appointed under this Section 3.14 will
relieve the Owner Trustee of any of its obligations under any Operative
Agreement or otherwise affect any of the terms of the Indenture or adversely
affect the interests of the Indenture Trustee or the Certificate Holders in
the Trust Indenture Estate.
Any co-trustee or separate trustee may, at any time by an instrument
in writing, constitute the Owner Trustee its or his attorney-in-fact and agent
with full power and authority to do all acts and things and to exercise all
discretion on its or his behalf and in its or his name subject to the
conditions of this Agreement.
Every additional trustee hereunder shall be a Citizen of the United
States and, to the extent permitted by law, be appointed and act, and the
Owner Trustee and its successors shall act, subject to the following
provisions and conditions:
(A) all powers, duties, obligations and rights conferred upon the
Owner Trustee in respect of the custody, control and management of monies,
the Aircraft or documents authorized to be delivered hereunder or under the
Participation Agreement shall be exercised solely by the Owner Trustee;
(B) all other rights, powers, duties and obligations conferred or
imposed upon the Owner Trustee shall be conferred or imposed upon and
exercised or performed by the Owner Trustee and such additional trustee
jointly, except to the extent that under any law of any jurisdiction in
which any particular act or acts are to be performed (including the holding
of title to the Lessor's Estate) the Owner Trustee shall be incompetent or
unqualified to perform such act or acts, in which event such rights,
powers, duties and obligations shall be exercised and performed by such
additional trustee;
(C) no power given to, or which is provided hereby may be exercised
by, any such additional trustee, except jointly with, or with the consent
in writing of, the Owner Trustee;
(D) no trustee hereunder shall be personally liable by reason of any
act or omission of any other trustee hereunder except as otherwise provided
hereunder; and
(E) the Trustor, at any time, by an instrument in writing may remove
any such additional trustee.
Section 3.15. Interpretation of Agreements. In the event that the
Owner Trustee is unsure as to the application of any provision of this
Agreement or any other Operative Agreement or any other agreement relating to
the transactions contemplated by the Operative Agreements or such provision is
ambiguous as to its application, or is, or appears to be, in conflict with any
other applicable provision, or in the event that this Agreement or any other
Operative Agreement permits any determination by the Owner Trustee or is
silent or incomplete as to the course of action which the Owner Trustee is
required to take with respect to a particular set of facts, the Owner Trustee
shall request in writing sent in accordance with Article 14 of the
Participation Agreement instructions of the Trustor and, to the extent that
the Owner Trustee acts in good faith in accordance with any instructions
received from the Trustor, shall not be liable to any Person; provided, that
in the event that no response is made to the Owner Trustee by the Trustor
within 25 Business Days after such request, the Owner Trustee shall not be
liable to any Person for acts taken by the Owner Trustee in good faith in what
it deems to be the best interests of the Trustor or for any failure to act in
any situation described above in this Section 3.15. The provisions of this
Section 3.15 shall not be applicable to the Owner Trustee's obligations set
forth in the last sentence of Section 3.01 hereof.
Section 3.16. Not Acting in Individual Capacity. In carrying out
the trust hereby created, the Owner Trustee will act solely as trustee
hereunder and not in its individual capacity except as expressly provided
herein or in the other Operative Agreements to which it is a party; and all
Persons, other than the Trustor as provided in this Agreement, having any
claim against the Owner Trustee by reason of the transactions contemplated
hereby shall look only to the Lessor's Estate for payment or satisfaction
thereof, except to the extent provided in the last sentence of Section 3.01
hereof.
Section 3.17. Books and Records; Tax Returns. The Owner Trustee
shall be responsible for the keeping of all appropriate books and records
relating to its receipt and disbursement of all moneys under this Agreement or
any Operative Agreement and shall, upon the request of the Trustor or its duly
authorized representative, make available such books and records at its
principal trust office during normal business hours for inspection and
copying. The Owner Trustee agrees to sign and file all returns with respect
to Taxes that the Trustor prepares (or causes to be prepared) and directs the
Owner Trustee to sign and file. The Owner Trustee, upon request, will furnish
the Trustor with all such information as may be reasonably required or
necessary from the Owner Trustee in connection with the preparation of such tax
returns and in connection with any other filing or audit and related litigation
obligations. At the request of the Trustor, and at the expense of the Lessee,
the Owner Trustee shall file an application with the Internal Revenue Service
for a taxpayer identification number with respect to the trust created
hereunder and prepare or cause to be prepared and sign and/or file the Federal
fiduciary tax return with respect to Taxes due and payable by the Trust in
connection with the transactions contemplated hereby or by any other Operative
Agreement; provided, however, that the Owner Trustee shall send a completed
copy of each such return to the Trustor not more than 60 nor less than 30 days
prior to the due date of such return; provided that the Owner Trustee shall
have timely received all necessary information to complete and deliver to the
Trustor such return. The Trustor, upon request, will furnish the Owner Trustee
with all such information as may be required from the Trustor in connection
with the preparation of such income tax returns. The Owner Trustee shall keep
copies of all returns delivered to or filed by it.
ARTICLE 4
TERMINATION OF TRUST
Section 4.01. Termination. This Agreement and the trust created and
provided for hereby shall cease and be terminated in any one of the following
events, whichever shall first occur:
(a) The sale or other final disposition by the Owner Trustee of all
of its interest in all property constituting or included in the Lessor's
Estate and, if the Indenture shall then be in effect, the sale or other
disposition by the Indenture Trustee of all of its interest in all property
constituting or included in the Lessor's Estate, and the final disposition
by the Owner Trustee and, if the Indenture shall then be in effect, the
Indenture Trustee, of all moneys or other property or proceeds constituting
part of the Lessor's Estate in accordance with the terms hereof; or
(b) 21 years less one day from the death of the last survivor of the
descendants of Queen Victoria of England living on the date of this
Agreement; provided, however, that if the Trust shall be or become valid
under applicable law for a period subsequent to 21 years less one day from
the death of the last survivor of the descendants of Queen Victoria of
England living on the date of this Agreement or, without limiting the
generality of the foregoing, if legislation shall become effective
providing for the validity or permitting the effective grant of such trust
for a period, in gross, exceeding the period for which such trust is
hereinabove stated to extend and be valid, then such trust shall not
terminate as provided in the first part of this sentence but shall extend
to and continue in effect until, but only if such non-termination and
extension shall then be valid under applicable law, such time as the same
shall, under applicable law, cease to be valid.
Section 4.02. Termination at Option of the Trustor. Notwithstanding
Section 4.01 hereof, this Agreement and the trust created hereby shall
terminate and the Trust Estate shall be distributed to the Trustor, and this
Agreement shall be of no further force and effect, upon the election of the
Trustor by notice to the Owner Trustee, if such notice shall be accompanied by
the written agreement (in form and substance satisfactory to the Owner
Trustee) of the Trustor assuming all the obligations of the Owner Trustee
under or contemplated by the Operative Agreements or incurred by it as trustee
hereunder and releasing the Owner Trustee therefrom; provided, however, that
such notice may be given only after the time the Lien of the Indenture is
discharged under Section 14.01 of the Indenture and the Lease has terminated
unless the Trustor shall have received the prior written consent of the
Indenture Trustee to any such termination in which case such notice may be
given while the Lien of the Indenture is outstanding.
Section 4.03. Distribution of Lessor's Estate upon Termination.
Upon any termination of this trust pursuant to the provisions of Section 4.01
hereof, the Owner Trustee shall convey the Lessor's Estate (subject to all
obligations, if any, of the Owner Trustee then existing under the Operative
Agreements to which the Owner Trustee is a party) to such purchaser or
purchasers or the Trustor, as the case may be, and for such amount and on such
terms as shall be specified in written instructions from the Trustor delivered
to the Owner Trustee prior to the date of termination; provided, that (i) if
at the time of any termination the Lease remains in force and effect, then the
Lessor's Estate shall be sold as a unit (and not in parcels) and subject to
the Lease, and (ii) in the event such written instructions are not delivered
to the Owner Trustee on or before the date of termination, the Owner Trustee
shall transfer title to the Lessor's Estate to the Trustor. Upon making such
transfer or sale and accounting for all funds which have come into its hands,
the Owner Trustee shall be entitled to receipt of any sums due and owing to
the Owner Trustee for expenses incurred pursuant hereto as set forth in
Section 2.05 hereof.
ARTICLE 5
[RESERVED]
ARTICLE 6
MISCELLANEOUS
Section 6.01. Indemnification. The Trustor shall assume liability
for, and shall indemnify, protect, save and keep harmless SSB from and against
any and all liabilities, obligations, losses, damages, penalties, taxes,
claims, actions, proceedings, suits, costs (including reasonable attorneys'
fees), expenses and disbursements of any kind and nature whatsoever ("Trust
Claims") imposed on, incurred by or asserted against the Owner Trustee or SSB,
as the case may be (but only to the extent the Owner Trustee or SSB, as the
case may be, is not indemnified by the Lessee for such Trust Claims under any
Operative Document or is not indemnified by any other Person for such Trust
Claims, within a reasonable time after demand therefor), in any way relating
to or arising out of (X) the Trust Estate or any of the properties included
therein and (Y) the administration of the Trust Estate or the action of
inaction of the Owner Trustee hereunder or under the Operative Documents
including, but not limited to, claims under any Environmental Laws; provided,
however, that (a) the Trustor shall not be required to indemnify the Owner
Trustee or SSB in the case of (i) willful misconduct, negligence with respect
to handling of funds, gross negligence or bad faith of the Owner Trustee or
SSB, as the case may be, (ii) the Owner Trustee's or SSB's failure to use
ordinary care in the handling of monies constituting part of the Trust Estate,
(iii) Taxes of the Owner Trustee or SSB, as the case may be, that are based on
or measured by the compensation received by SSB for acting as Owner Trustee
hereunder, and (iv) items excluded from indemnification by the Lessee as, as
to the extent, provided in Section 8.01(b)(i-xii) and 9.01(b)(i-ix) of the
Participation Agreement, and (b) the Trustor shall not be required to
indemnify with respect to Trust Claims resulting from a breach of the
covenants by SSB in Article 3 hereof or Trust Claims resulting because any
representation or warranty of the Owner Trustee or SSB, as the case may be,
contained in any Operative Document proves to be untrue or inaccurate or the
failure by the Owner Trustee or SSB, as the case may be, to perform or observe
any agreements, covenants or conditions to be performed or observed by it in
any of the Operative Documents. None of the foregoing exclusions shall limit
the obligation of the Trustor to indemnify SSB (but SSB shall still be
required to seek indemnification from the Lessee before making a claim against
the Trustor hereunder unless such exclusion is otherwise limited under
Sections 8.01(b) and 9.01(b) of the Participation Agreement), (i) for actions
taken in accordance with written instructions received from the Trustor, and
(ii) to the extent such exclusions are attributable to acts or omissions of
the Trustor. The payor of any indemnity under this Section 6.01 shall be
subrogated to any right of the person indemnified in respect of the matter as
to which such indemnity was paid. The indemnities contained in this Section
6.01 shall survive the termination of this Agreement.
Section 6.02. Limitations on the Trustor's Liability. The Trustor
shall not have any liability for the performance of this Agreement except as
expressly set forth herein.
Section 6.03. Fees; Compensation. Except as provided in Section
3.06(e) or 6.01 hereof, the Owner Trustee agrees that it shall have no right
against the Trustor or the Trust Estate for any fee as compensation for its
services hereunder.
Section 6.04. Supplements and Amendments. At any time and from time
to time, only upon the written request of the Trustor (a) SSB and the Trustor
shall execute a supplement hereto for the purpose of adding provisions to, or
changing or eliminating provisions of, this Agreement as specified in such
request and (b) the Owner Trustee shall, subject to the provisions of Section
8.01 of the Indenture, enter into or consent to such written amendment or
modification of or supplement to any of the Operative Agreements as the
Trustor and any other necessary parties may agree to in writing and as may be
specified in such request, or execute and deliver such written waiver of the
terms of any of the Operative Agreements as may be agreed to in writing by the
Trustor and as may be specified in such request; provided, that (i) the Owner
Trustee shall not execute any such supplement, amendment, waiver or
modification without the prior written consent of the Trustor, (ii) if in the
reasonable opinion of the Owner Trustee any document required to be executed
by it pursuant to this Section adversely affects any right or duty of, or
immunity or indemnity in favor of, the Owner Trustee under this Agreement or
any other Operative Agreement, the Owner Trustee may in its discretion
decline to execute such document and (iii) any amendment or supplement to this
Agreement shall comply with the provisions of Section 7.13 of the
Participation Agreement. It shall not be necessary that any request pursuant
to this Section specify the particular form of the proposed document to be
executed pursuant to such request, but it shall be sufficient if such request
shall indicate the substance thereof. Promptly after the execution by SSB or
the Owner Trustee of any document pursuant to this Section, the Owner Trustee
shall mail a conformed copy thereof to the Trustor, the Indenture Trustee and
the Lessee, but the failure of the Owner Trustee to mail such conformed copies
shall not impair or affect the validity of such document.
Section 6.05. Nature of Title of Trustor. The Trustor shall not
have any legal title to any part of the Lessor's Estate. No transfer, by
operation of law or otherwise, of the right, title and interest of the Trustor
in and to the Lessor's Estate or the trust hereunder shall operate to
terminate this Agreement or Lessor's Estate.
Section 6.06. Power of Owner Trustee to Convey. Any assignment,
sale, transfer or other conveyance by the Owner Trustee of the interest of the
Owner Trustee in the Operative Agreements or in the Aircraft or any part
thereof pursuant to and in compliance with the terms of this Agreement or the
Operative Agreements shall bind the Trustor and shall be effective to transfer
or convey all right, title and interest of the Owner Trustee in and to the
Operative Agreements or the right, title and interest of the Owner Trustee and
the Trustor in and to the Aircraft or such part thereof. No purchaser or
other grantee shall be required to inquire as to the authorization, necessity,
expediency or regularity of such assignment, sale, transfer or conveyance or
as to the application of any sale or other proceeds with respect thereto by
the Owner Trustee.
Section 6.07. Notices. All notices, demands, declarations and other
communications required by this Agreement shall be in writing and shall be
deemed received (a) if given by telecopier, when transmitted and the
appropriate telephonic confirmation received if transmitted on a Business Day
and during normal business hours of the recipient, and otherwise on the next
Business Day following transmission, (b) if given by certified mail, return
receipt requested, postage prepaid five Business Days after being deposited in
the United States mail, and (c) if given by FedEx service or other means, when
received or personally delivered, addressed:
If to the Owner Trustee: State Street Bank and Trust Company of Connecticut,
National Association
c/o State Street Bank and Trust Company
Two International Place
4th Floor
Boston, Massachusetts 02110
Attention: Corporate Trust Department
Telephone: (617) 664-5526
Facsimile: (617) 664-5371
If to the Trustor: PMCC Leasing Corporation
200 First Stamford Place
Stamford, Connecticut 06902
Attention: Vice President Leasing
with a copy to Director, Portfolio Administration
Telephone: (914) 335-5000
Facsimile: (914) 335-8301
If to the Indenture
Trustee: First Security Bank, National Association
79 South Main Street
Salt Lake City, Utah 84111
Attention: Corporate Trust Department
Telephone: (801) 246-5630
Facsimile: (801) 246-5053
or as to any of the foregoing parties at such other address as such party may
designate by notice duly given in accordance with this Section to the other
parties.
Section 6.08. Situs of Trust; Applicable Law; Severability. THIS
AGREEMENT SHALL IN ALL RESPECTS BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE INTERNAL LAWS OF THE STATE OF CONNECTICUT, INCLUDING ALL MATTERS OF
VALIDITY, CONSTRUCTION AND PERFORMANCE. If any provision of this Agreement
shall be invalid or unenforceable, the remaining provisions hereof shall
continue to be fully effective; provided, that such remaining provisions do
not increase the obligations or liabilities of the Owner Trustee or the
Trustor.
Section 6.09. Successors and Assigns. This Agreement shall be
binding upon and shall inure to the benefit of, and shall be enforceable by,
the parties hereto and their respective successors and permitted assigns,
including any successive holder of the Beneficial Interest, but only to the
extent the Beneficial Interest has been transferred or assigned in accordance
with the limitations of Section 7.03(d) of the Participation Agreement.
Section 6.10. Headings and Table of Contents. The headings of the
Articles and Sections of this Agreement and the Table of Contents are inserted
for convenience only and shall not affect the meaning or construction of any
of the provisions hereof.
Section 6.11. Identification of Trust. This trust may for
convenience be referred to as the "Federal Express Corporation Trust No.
N673FE."
Section 6.12. Counterparts. This instrument may be executed in any
number of counterparts or upon separate signature pages bound together in
several counterparts, each of which when so executed shall be deemed to be an
original, and such counterparts together shall constitute and be one and the
same instrument.
Section 6.13. Trustor Interest. The Trustor has only a beneficial
interest in any specific property of this Trust. No creditor of the Trustor
shall have any right to obtain possession of, or otherwise exercise legal or
equitable remedies with respect to, the property of this trust (as opposed to
the Trustor's beneficial interest in this trust).
Section 6.14. Performance by the Trustor. Any obligation of the
Owner Trustee hereunder or under any Operative Agreement or other document
contemplated herein may be performed by the Trustor and any such performance
shall not be construed as a revocation of the trust created hereby.
IN WITNESS WHEREOF, SSB and the Trustor have caused this Agreement to
be duly executed all as of the date first above written.
PMCC LEASING CORPORATION
By:
-------------------------------------------------
Name: Joan D. Woodroof
Title: Manager, Structured Finance
STATE STREET BANK AND TRUST COMPANY OF
CONNECTICUT, NATIONAL ASSOCIATION
By:
-------------------------------------------------
Name: Paul D. Allen
Title: Vice President
SCHEDULE I
DEFINITIONS
(FEDERAL EXPRESS CORPORATION TRUST NO. N673FE)
GENERAL PROVISIONS
The following terms shall have the following meanings for all
purposes of the Operative Agreements (other than the Pass Through Agreement,
the Series Supplements, the Intercreditor Agreement and the Liquidity
Facilities) referred to below, unless otherwise defined in an Operative
Agreement or the context thereof shall otherwise require. In the case of any
conflict between the provisions of this Schedule and the provisions of any
Operative Agreement, the provisions of such Operative Agreement shall control
the construction of such Operative Agreement.
Unless the context otherwise requires, (i) references to agreements
shall be deemed to mean and include such agreements as amended and
supplemented from time to time, and (ii) references to parties to agreements
shall be deemed to include the successors and permitted assigns of such
parties.
DEFINED TERMS:
Additional Insured. As defined in Article 13 of the Lease.
Aeronautics Authority. As appropriate, the Federal Aviation
Administration and/or the Administrator of the Federal Aviation
Administration, any successor to the former United States Civil Aeronautics
Board, or any Person, governmental department, bureau, commission or agency
located in the United States succeeding to the functions of any of the
foregoing.
Affidavits. The affidavits of citizenship of the Owner Trustee and
the Owner Participant.
Affiliate. With respect to any Person, any other Person directly or
indirectly controlling, controlled by or under common control with such
Person. For the purposes of this definition, "control" (including "controlled
by" and "under common control with") shall mean the power, directly or
indirectly, to direct or cause the direction of the management and policies of
such Person whether through the ownership of voting securities or by contract
or otherwise. In no event shall the Owner Trustee or the Lessor be deemed an
Affiliate of the Owner Participant.
After-Tax Basis. A basis such that any payment to be received by a
Person shall be supplemented by a further payment to such Person so that the
sum of the two payments, after deduction of all Taxes resulting from the
receipt or accrual of such payments, shall be equal to the payment to be
received. In the case of amounts payable to the Lessor, the Owner Participant,
or any corporate Affiliate of the Owner Participant, it shall be presumed that
such Person is at all times subject to Federal income tax at the maximum
marginal rate generally applicable to corporations from time to time and
actual state, local and foreign income taxes.
Air Carrier. Any U.S. Air Carrier and any "foreign air carrier" (as
defined in the Transportation Code) as to which there is in force a permit
granted under Section 41302 of the Transportation Code.
Airbus Guaranty. The Guaranty to be dated the Delivery Date executed
by the Manufacturer and guaranteeing AVSA's Warranty Bill of Sale.
Aircraft. The Airframe to be sold by AVSA to the Owner Trustee as
provided in the Participation Agreement and to be leased under the Lease (or
any permitted substitute airframe thereunder) together with two Engines
(whether either is an initial Engine or a Replacement Engine) whether or not
any of such initial or Replacement Engines may from time to time be installed
on such Airframe or may be installed on any other airframe or on any other
aircraft, including any aircraft substituted pursuant to Section 11.03 of the
Lease. Prior to delivery of the initial Lease Supplement, references in the
Operative Agreements (including Section 3.05 of the Participation Agreement)
to Aircraft shall mean the Airbus A300F4-605R airframe bearing FAA
Registration Number N673FE and Manufacturer's serial number 780, together with
two General Electric CF6-80C2-A5F engines.
Airframe. The Airbus A300F4-605R aircraft (excluding the Engines or
engines from time to time installed thereon) to be leased by the Lessor to the
Lessee pursuant to the Lease and the initial Lease Supplement and having the
United States FAA Registration Number initially and manufacturer's serial
number specified in the initial Lease Supplement, including (i) all Parts in
respect thereof and (ii) any Replacement Airframe which may be substituted
pursuant to Section 11.03 of the Lease.
Ancillary Agreement. Any written agreement of the Lessee to which the
Lessor is a party or to which the Lessor has consented in writing entered into
on or prior to the Delivery Date or any date thereafter in connection with the
transactions contemplated by the Operative Agreements, as such agreement may
be amended and supplemented from time to time with the consent of the Lessor
and delivered to the Owner Trustee, the Indenture Trustee, the Pass Through
Trustee, the Subordination Agent, each Liquidity Provider and the Owner
Participant.
Ancillary Agreement I. The Ancillary Agreement I (Federal Express
Corporation Trust No. N673FE), dated the Certificate Closing Date, among the
Lessee, the Owner Trustee, not in its individual capacity, but solely as Owner
Trustee, the Owner Participant and the Indenture Trustee not in its individual
capacity, but solely as Indenture Trustee, as originally executed or as
amended, modified or supplemented with the consent of all the parties thereto.
Ancillary Agreement II. The Ancillary Agreement II (Federal Express
Corporation Trust No. N673FE), dated the Certificate Closing Date, among the
Lessee, the Owner Trustee, not in its individual capacity, but solely as Owner
Trustee, the Owner Participant and the Indenture Trustee not in its individual
capacity, but solely as Indenture Trustee, as originally executed or as
amended, modified or supplemented with the consent of all the parties thereto.
Application. The application for registration of the Aircraft with
the FAA in the name of the Owner Trustee.
Appraisal. The report prepared by BK Associates, Inc. and to be
delivered to the Owner Participant (with an abbreviated report to the Lessee)
on the Delivery Date pursuant to Section 4.02(h) of the Participation
Agreement.
Assignment and Assumption Agreement. Any agreement delivered in
compliance with Section 7.03(d) of the Participation Agreement.
Average Life Date. For any Certificate, the date which follows the
prepayment date by a period equal to the Remaining Weighted Average Life of
such Certificate.
AVSA. AVSA S.A.R.L., a societe a responsabilite limitee, organized
and existing under the laws of France.
AVSA Consent and Agreement. The Consent and Agreement dated as of
May 1, 1997, executed by AVSA.
AVSA's FAA Bill of Sale. The bill of sale for the Airframe on AC
Form 8050-2, or such other form as may be approved by the Aeronautics
Authority, executed by AVSA in favor of the Owner Trustee and to be dated the
Delivery Date.
AVSA's Warranty Bill of Sale. The full warranty bill of sale
covering the Aircraft (and specifically referring to each Engine) executed by
AVSA as owner of the Aircraft in favor of the Owner Trustee and to be dated
the Delivery Date.
Bankruptcy Code. The Federal Bankruptcy Code of 1978, as amended, and
any successor thereto.
Bankruptcy Default. An event specified in Section 16.01(e), (f) or
(g) of the Lease which either does or, with the giving of notice or lapse of
time or both, would constitute an Event of Default.
Basic Rent. The aggregate periodic rent payable for the Aircraft
throughout the Basic Term pursuant to Section 3.02 of the Lease, adjusted
pursuant to Article 3 of the Lease.
Basic Term. The period commencing at the beginning of the day on the
Delivery Date and ending at the end of the day on December 11, 2020, or such
earlier date on which the Lease shall be terminated as provided therein.
Beneficial Interest. The interest of the Owner Participant under the
Trust Agreement.
Business Day. Any day on which commercial banks are not authorized or
required to close in New York, New York, Memphis, Tennessee and the city in the
United States in which the office or agency is maintained by the Pass Through
Trustee for the payment of the Pass Through Certificates, and after the Lien
of the Indenture is discharged, Boston, Massachusetts.
Certificate Closing Date. The date of the closing with respect to the
purchase of Certificates by the Pass Through Trustee contemplated by Section
2.01(b) of the Participation Agreement.
Certificates. The Equipment Trust Certificates (Federal Express
Corporation Trust No. N673FE), issued by the Owner Trustee pursuant to the
Indenture and any certificate issued in exchange therefor or replacement
thereof pursuant to the Indenture.
Change in Tax Law. Any change to the Code or the Treasury regulations
promulgated thereunder or the publication of any revenue ruling, revenue
procedure or any informational release by the Internal Revenue Service or the
Department of Treasury either of which would change or would allow a change in
the tax assumptions or structure upon which the lease economics were based,
provided that the Owner Participant or the Lessee has notified the other party
of such change in writing prior to the Delivery Date.
Change in Tax Rate. Any amendment, modification, deletion, addition,
or change to the Code which is enacted into law after the Delivery Date which
changes the highest marginal statutory rate of Federal income tax applicable
to the Owner Participant (other than a change which is in the nature of a
minimum tax).
Citizen of the United States. A citizen of the United States as
defined in Section 40102(a)(15) of the Transportation Code, or any analogous
part of any successor or substituted legislation or regulation at the time in
effect.
Class A Liquidity Provider. Has the meaning specified in Section
1.01 of the Intercreditor Agreement.
Class B Liquidity Provider. Has the meaning specified in Section
1.01 of the Intercreditor Agreement.
Closings. The closing with respect to the acquisition of the Pass
Through Certificates by the Underwriters and the closing with respect to the
acquisition of Certificates by the Pass Through Trustee.
Code. Except as otherwise provided, the Internal Revenue Code of
1986, as amended from time to time.
Collateral Account. The deposit account established and maintained
pursuant to Section 2.13 of the Indenture.
Collateral Account Control Agreement. The Collateral Account Control
Agreement dated as of May 1, 1997 among State Street Bank and Trust Company,
the Indenture Trustee and the Owner Trustee.
Commitment. The amount of the Owner Participant's participation in
the Purchase Price required to be made available or paid as provided in
Section 3.02 of the Participation Agreement.
Consent and Agreement. The Consent and Agreement dated as of May 1,
1997 executed by the Manufacturer.
Consent and Guaranty. The Consent and Guaranty of the Manufacturer
attached to the Purchase Agreement.
Corporate Trust Administration. The Corporate Trust Administration
office of the Owner Trustee located at 750 Main Street, Hartford, Connecticut
06103, Attention: Corporation Trust Administration, or such other office at
which the Owner Trustee's corporate trust business shall be administered which
the Owner Trustee shall have specified by notice in writing to the Lessee, the
Owner Participant and the Indenture Trustee.
Corporate Trust Department. The Corporate Trust Department office of
the Indenture Trustee located at 79 South Main Street, Salt Lake City, Utah
84111, Attention: Corporate Trust Department, or such other office at which
the Indenture Trustee's corporate trust business shall be administered which
the Indenture Trustee shall have specified by notice in writing to the Lessee,
the Owner Participant and the Owner Trustee.
CRAF Program. Has the meaning specified in Section 7.01(f) of the
Lease.
Cut-Off Date. December 10, 1997.
Debt Portion. The amount specified as such on Schedule IV to the
Participation Agreement.
Debt Rate. The weighted average (based on Outstanding principal
amount) rate of interest on the Certificates issued pursuant to the Indenture.
Default. Any event or condition which, with the lapse of time or the
giving of notice, or both, would constitute an Event of Default.
Delivery Date. The date on which the Aircraft is delivered and sold
by AVSA to the Lessor and leased by the Lessor to the Lessee under the Lease,
which date shall also be the date of the initial Lease Supplement.
Delivery Notice. Notice of the Aircraft's Delivery Date, given by
the Lessee as provided in Section 3.01 of the Participation Agreement and
including any notice with respect to a postponed Delivery Date given by the
Lessee pursuant to Section 3.05(c) of the Participation Agreement.
Eligible Deposit Account. Either (a) a segregated account with an
Eligible Institution or (b) a segregated trust account with the corporate
trust department of a depository institution with corporate trust powers
organized under the laws of the United States or any state thereof, or the
District of Columbia, and whose deposits are insured by the Federal Deposit
Insurance Corporation, provided that such institution also has a combined
capital and surplus of at least $100,000,000 and a rating of A or better from
the Thomson Bank Watch.
Eligible Institution. A depository institution organized under the
laws of the United States or any one of the states thereof, or the District of
Columbia, or any domestic branch of a foreign bank, which in any such case at
all times (a) has either (x) a long-term unsecured debt rating of at least Aa2
by Moody's or (y) a short-term certificate of deposit rating of P-1 by
Moody's, (b) has either (x) a long-term unsecured debt rating of a least AA by
S&P or (y) a short-term certificate of deposit rating of A-1+ by S&P and (c)
is a member of the Federal Deposit Insurance Corporation.
Engine. Each of the two General Electric CF6-80C2-A5F engines listed
by its manufacturer's serial number in the initial Lease Supplement and leased
pursuant to the Lease, whether or not from time to time installed on the
Airframe or installed on any other airframe or on any other aircraft, and any
Replacement Engine which may from time to time be substituted for an Engine
pursuant to Section 7.02(a)(vii), 10.02(c), 10.03, 11.03, 11.04 or 12.02 of
the Lease, together with all Parts related thereto. Except as otherwise
provided, at such time as a Replacement Engine shall be so substituted and the
Engine for which the substitution is made shall be released from the Lien of
the Indenture, such replaced Engine shall cease to be an "Engine" under the
Lease. The term "Engines" means, as of any date of determination, both Engines
then leased to the Lessee pursuant to the Lease.
Engine Consent. The Engine Consent dated as of May 1, 1997, executed
by the Engine Manufacturer.
Engine Manufacturer. General Electric Company, a New York
corporation.
Engine Warranty Assignment. The Engine Warranty Assignment (Federal
Express Corporation Trust No. N673FE), dated as of May 1, 1997 between the
Lessor and the Lessee.
ERISA. The Employee Retirement Income Security Act of 1974, as
amended.
ERISA Plan. As defined in Section 8.01(b)(xii) of the Participation
Agreement.
Estimated Expense Amount. Has the meaning specified in Section
10.01(a) of the Participation Agreement.
Event of Default. Each of the events specified in Article 16 of the
Lease.
Event of Loss. Any of the following events with respect to the
Aircraft, the Airframe or any Engine: (i) loss of such property or its use (A)
for a period in excess of 60 days due to theft or disappearance or such longer
period, not to exceed 180 days from the end of such initial 60-day period, if
and so long as the location of such property is known to the Lessee and the
Lessee is diligently pursuing recovery of such property, or to the end of the
Term, if less (unless such theft or disappearance constitutes an Event of Loss
pursuant to (i)(B) or (ii) hereof) or (B) for a period in excess of 60 days
due to the destruction, damage beyond economic repair or rendition of such
property permanently unfit for normal use by Lessee for any reason whatsoever;
(ii) any damage to such property which results in an insurance settlement with
respect to such property on the basis of a total loss, or constructive or
compromised total loss; (iii) (1) condemnation, confiscation or seizure of, or
requisition of title to such property by the Government, any foreign
government or purported government or any agency or instrumentality thereof,
or (2) condemnation, confiscation, or seizure of, or requisition or taking of,
use of such property (A) by a foreign government or instrumentality or agency
of any such foreign government, for a period in excess of 180 days (or such
shorter period ending on the earlier of the expiration of the Term or on the
date on which an insurance settlement with respect to such property on the
basis of a total loss or constructive or compromised total loss shall occur)
or (B) by the Government for a period extending beyond the Term; and (iv) as a
result of any law, rule, regulation, order or other action by the Aeronautics
Authority or other governmental body having jurisdiction, the use of the
Aircraft or Airframe in the normal course of air transportation of cargo shall
have been prohibited by virtue of a condition affecting all Airbus A300-600
series aircraft equipped with engines of the same make and model as the
Engines for a period of twelve (12) consecutive months, unless the Lessee,
prior to the expiration of such twelve (12) month period, shall be diligently
carrying forward all steps which are necessary or desirable to permit the
normal use of the Aircraft or Airframe or, in any event, if such use of the
Aircraft or the Airframe shall have been prohibited for a period of
twenty-four (24) consecutive months or until the end of the Term, if earlier.
The date of such Event of Loss shall be (s) the 61st day or the 241st day, as
the case may be, following loss of such property or its use due to theft or
disappearance (or the end of the Term or the Lessee's abandonment of diligent
efforts to recover such property, if earlier); (t) the 61st day following the
date of any destruction, damage beyond economic repair or rendition of such
property permanently unfit for normal use; (u) the date of any insurance
settlement on the basis of a total loss or constructive or compromised total
loss; (v) the date of any condemnation, confiscation, seizure or requisition
of title of such property; (w) the 181st day following condemnation,
confiscation, seizure or requisition for use of such property by a foreign
government referred to in clause (iii)(2)(A) above (or the end of the Term or
the date of any insurance settlement described therein, if earlier than such
181st day); (x) the last day of the Term in the case of requisition for use of
such property by the Government; (y) the last day of the 12 month or 24 month
period, referred to in clause (iv) above (or if earlier, the end of the Term
or abandonment of the Lessee's efforts to restore the normal use of the
Aircraft). An Event of Loss with respect to the Aircraft shall be deemed to
have occurred if any Event of Loss occurs with respect to the Airframe.
Excepted Payments. Collectively, (i) indemnity, expense,
reimbursement or other payments paid or payable by the Lessee in respect of
the Owner Participant, the Owner Trustee in its individual capacity or any of
their respective successors, permitted assigns, directors, officers,
employees, servants and agents or Affiliates, pursuant to the Participation
Agreement or any other Operative Agreement or any indemnity hereafter granted
to the Owner Participant or the Owner Trustee in its individual capacity
pursuant to the Lease or the Participation Agreement, (ii) proceeds of public
liability insurance (or government indemnities in lieu thereof) in respect of
the Aircraft payable as a result of insurance claims paid for the benefit of,
or losses suffered by, the Owner Trustee or the Indenture Trustee in their
respective individual capacities or by the Owner Participant, or their
respective successors, permitted assigns or Affiliates, (iii) proceeds of
insurance maintained with respect to the Aircraft by the Owner Participant
(whether directly or through the Owner Trustee) maintained in accordance with
Section 13.05 of the Lease but not required under Article 13 of the Lease,
(iv) payments of Supplemental Rent by the Lessee in respect of any amounts
payable under the Tax Indemnity Agreement, (v) any purchase price paid to the
Owner Participant for its interest in the Trust Estate pursuant to Section
7.03(d) of the Participation Agreement, (vi) subject to Section 3.05 of the
Lease, payments constituting increases in Basic Rent attributable to payments
arising pursuant to Section 5 of the Tax Indemnity Agreement, (vii) any
payments in respect of interest to the extent attributable to payments
referred to in clauses (i) through (vi) above and (viii) any right to demand,
collect or otherwise receive and enforce the payment of any amount described
in clauses (i) through (v) and (vii) above (except with respect to interest
attributable to payments referred to in clause (vi) above).
Expense; Expenses. Have the meaning specified in Section 9.01(a) of
the Participation Agreement.
Fair Market Renewal Term. A term with respect to which the Lessee has
exercised its option to renew the Lease pursuant to the second paragraph of
Section 4.01(a) thereof and with respect to which the conditions set forth in
such Section 4.01(a) are met.
Fair Market Rental. An amount determined on the basis of, and equal
in amount to, the rental which would be obtained in an arm's-length
transaction between an informed and willing lessee and an informed and willing
lessor unaffiliated with such lessee, neither being under any compulsion to
lease. In such determination, it shall be assumed that the Aircraft is in the
condition required under the Lease in the case of return of the Aircraft
pursuant to Article 12 of the Lease and Fair Market Rental shall be determined
in accordance with the provisions of Section 4.03 of the Lease.
Fair Market Value. An amount determined on the basis of, and equal in
amount to, the value which would be obtained in an arm's-length transaction
between an informed and willing purchaser under no compulsion to buy and an
informed and willing seller unaffiliated with such purchaser and under no
compulsion to sell, assuming the Aircraft (or other property) is unencumbered
by the Lease. In such determination, except for purposes of Section 17.01 of
the Lease (when it shall be determined based upon the actual condition and
location of the Aircraft), it shall be assumed that the Aircraft is in the
condition required under the Lease in the case of return of the Aircraft
pursuant to Article 12 of the Lease and Fair Market Value shall be determined
in accordance with the provisions of Section 4.03 of the Lease.
Federal Aviation Administration; FAA. The United States Federal
Aviation Administration and any successor agency or agencies thereto.
Final Drawing. Has the meaning specified in Section 1.01 of the
Intercreditor Agreement.
Fixed Renewal Rent. Semi-annual payments of rent during the Fixed
Renewal Term equal to the lesser of (i) Fair Market Rental as determined as of
the commencement of such Fixed Renewal Term and (ii) 50% of the average actual
semi-annual Basic Rent payable during the Basic Term.
Fixed Renewal Term. The term with respect to which the Lessee has
exercised its option to renew the Lease pursuant to the first paragraph of
Section 4.01(a) thereof and with respect to which the conditions set forth in
such Section 4.01(a) are met.
FPO Price. Has the meaning set forth in Section 4.02(a)(F) of the
Lease.
French Pledge Agreement. The French Pledge Agreement dated as of May
1, 1997 between the Owner Trustee and the Indenture Trustee.
FSB. First Security Bank, National Association, a national banking
association.
Government. The United States of America or an agency or
instrumentality thereof the obligations of which bear the full faith and
credit of the United States of America.
GTA. The General Terms Agreement dated as of July 3, 1991 between the
Engine Manufacturer and the Lessee related to the purchase by the Lessee of the
Engines as originally executed or as modified, amended or supplemented in
accordance with the terms thereof, but only insofar as the General Terms
Agreement relates to the Engines, to the extent assigned to the Owner Trustee
pursuant to the Engine Warranty Assignment.
Holder of a Certificate; Certificate Holder; Holder. As of any
particular time, the Person in whose name a Certificate shall be registered
(but not including the holder of any Pass Through Certificate).
Indemnitee. Each of SSB, in its individual capacity and as Owner
Trustee and Lessor, the Subordination Agent, in its individual capacity and in
its capacity as Subordination Agent, each Liquidity Provider, the Owner
Participant, the Indenture Trustee, in its individual capacity and as trustee,
the Owner Participant Guarantor and any successor (including any trustee which
may succeed to the Lessor's interest under the Lease), Affiliate, assign,
officer, director, employee, agent and servant of any of the foregoing, the
Lessor's Estate and the Trust Indenture Estate. Neither the Pass Through
Trustee nor any holder of a Pass Through Certificate shall be deemed to be an
Indemnitee.
Indenture. The Trust Indenture and Security Agreement (Federal
Express Corporation Trust No. N673FE), dated as of May 1, 1997, between the
Lessor and the Indenture Trustee, as supplemented by the Indenture and
Security Agreement Supplement.
Indenture and Security Agreement Supplement. The Indenture and
Security Agreement Supplement No. 1 (Federal Express Corporation Trust No.
N673FE) to be dated the Delivery Date, substantially in the form of Exhibit A
to the Indenture.
Indenture Default. Any event or condition which, with the lapse of
time or the giving of notice, or both, would constitute an Indenture Event of
Default.
Indenture Documents. Has the meaning specified in the Granting
Clause of the Indenture.
Indenture Event of Default. Each of the events specified in Section
7.01 of the Indenture.
Indenture Trustee. First Security Bank, National Association, a
national banking association, not in its individual capacity but solely as
Indenture Trustee under the Indenture.
Indenture Trustee's Liens. Any Lien against, on or with respect to
the Aircraft, the Lessor's Estate or the Trust Indenture Estate or any part
thereof resulting from (i) claims against the Indenture Trustee not related to
the administration of the Trust Indenture Estate or any transactions pursuant
to the Indenture or any document included in the Trust Indenture Estate, (ii)
any act or omission of the Indenture Trustee which is not related to the
transactions contemplated by the Operative Agreements or is in violation of
any of the terms of the Operative Agreements or (iii) Taxes imposed against
the Indenture Trustee in its individual capacity in respect of which the Lessee
has not indemnified (and is not obligated to indemnify) the Indenture Trustee
in such capacity.
Independent Appraisal. An appraisal conducted pursuant to Section
4.03 of the Lease.
Independent Investment Banker. An independent investment banking
institution of national standing appointed by the Lessee that is independent
in fact, does not have any direct financial interests, or any material
indirect financial interest, in the Lessee or any Affiliate of the Lessee, and
is not connected with the Lessee or any Affiliate of the Lessee, as an
officer, employee, promoter, underwriter, trustee, partner, director or Person
performing similar functions; provided, that if the Indenture Trustee shall
not have received written notice of such an appointment at least 10 days prior
to the Prepayment Date, "Independent Investment Banker" shall mean such an
institution appointed by the Indenture Trustee.
Intercreditor Agreement. The Intercreditor Agreement dated as of May
1, 1997, among the Pass Through Trustee, the Class A Liquidity Provider, the
Class B Liquidity Provider and the Subordination Agent.
Interest Drawing. Has the meaning specified in Section 1.01 of the
Intercreditor Agreement.
Invoice. The invoice for the Aircraft given by AVSA to the Lessor.
Lease. The Lease Agreement (Federal Express Corporation Trust No.
N673FE) dated as of May 1, 1997, entered into by the Lessor and the Lessee
concurrently with the execution and delivery of the Indenture, including,
without limitation, supplementation by one or more Lease Supplements entered
into pursuant to the applicable provisions of the Lease.
Lease Supplement. The Lease Supplement No. 1 (Federal Express
Corporation Trust No. N673FE) to be dated the Delivery Date, substantially in
the form of Exhibit A to the Lease.
Lease Term. The period commencing on the Delivery Date and ending at
the end of the Basic Term.
Lessee. Federal Express Corporation, a Delaware corporation.
Lessee Documents. Has the meaning set forth in Section 6.01(b) of the
Participation Agreement.
Lessor. State Street Bank and Trust Company of Connecticut, National
Association, a national banking association, not in its individual capacity
but solely as Owner Trustee under the Trust Agreement.
Lessor's Estate. All estate, right, title and interest of the Owner
Trustee in and to the Collateral Account, the Liquid Collateral, the Aircraft,
the Lease, any Lease Supplement, the Participation Agreement, AVSA's FAA Bill
of Sale, AVSA's Warranty Bill of Sale, the Airbus Guaranty, the Purchase
Agreement, the Purchase Agreement Assignment, the Consent and Agreement, the
AVSA Consent and Agreement, the Consent and Guaranty (to the extent assigned
by the Purchase Agreement Assignment), any Ancillary Agreement, the GTA, the
Engine Warranty Assignment, the Engine Consent, any warranty with respect to
the Airframe and the Engines, all amounts of Basic Rent and Supplemental Rent,
including without limitation, insurance proceeds (other than insurance
proceeds payable to or for the benefit of the Owner Trustee in its individual
capacity or the Owner Participant) and requisition, indemnity or other
payments of any kind for or with respect to the Aircraft (except amounts owing
to the Owner Participant, to the Indenture Trustee, to the Owner Trustee in its
individual capacity, or to any of their respective directors, officers,
employees and agents pursuant to Articles 8 and 9 of the Participation
Agreement), and all other property of the Owner Trustee purportedly subjected
to the Lien of the Indenture by the Granting Clause thereof; provided that in
no event shall "Lessor's Estate" include any Excepted Payment.
Lessor's Liens. Liens against, on or with respect to the Aircraft,
the Lessor's Estate or the Trust Indenture Estate or any part thereof, title
thereto or any interest therein arising as a result of (i) claims against the
Lessor, in its individual capacity or as Owner Trustee, or the Owner
Participant, in each case not related to the transactions contemplated by the
Operative Agreements, (ii) acts or omissions of the Lessor in its individual
capacity or as Owner Trustee, and, in the case of the Lessor in its individual
capacity, arising from its gross negligence or willful misconduct or expressly
prohibited under the Operative Agreements and any act or omission of the Owner
Participant which is in violation of any of the terms of the Operative
Agreements, (iii) Taxes or Expenses imposed against the Lessor, in its
individual capacity or as Owner Trustee, Owner Participant, Lessor's Estate or
the trust created by the Trust Agreement which are not required to be
indemnified against by the Lessee pursuant to the Participation Agreement by
reason of Section 8.01(b) or 9.01(b) thereof and which are not required to be
indemnified against by the Lessee pursuant to the Tax Indemnity Agreement, or
(iv) claims against the Lessor or the Owner Participant arising from the
voluntary transfer by the Lessor or the Owner Participant of its interests in
the Aircraft other than a transfer of the Aircraft pursuant to Section 4.02(a)
or Article 10 or 11 of the Lease and other than a transfer pursuant to the
exercise of the remedies set forth in Article 17 of the Lease.
Lien. Any mortgage, pledge, lien, charge, encumbrance, lease or
security interest or other similar interest.
Liquid Collateral. All amounts and securities deposited from time to
time in the Collateral Account and all the products, investments, earnings and
proceeds of the foregoing, including, but not limited to, all proceeds of the
investment or conversion thereof, voluntary or involuntary, into cash,
Specified Investments or other property, all rights to payment of any and
every kind, and other forms of obligations, and instruments and other property
which at any time constitute all or part or are included in the proceeds of
any of the foregoing.
Liquidity Facility. Has the meaning specified in Section 1.01 of the
Intercreditor Agreement.
Liquidity Provider. Has the meaning specified in Section 1.01 of the
Intercreditor Agreement.
Losses. Has the meaning specified in Section 17.02(a) of the
Participation Agreement.
Loss Payee. Has the meaning specified in Section 13.02(b)(i) of the
Lease.
Majority in Interest of Certificate Holders. As of a particular date
of determination, the Holders of more than 50% of the aggregate unpaid
principal amount of all Certificates outstanding as of such date excluding for
purposes of this definition any Certificates held by (i) the Owner Trustee or
the Owner Participant or any interests of the Owner Participant unless all
Certificates then outstanding shall be held by the Owner Participant, (ii) the
Lessee or (iii) any Affiliate of any thereof.
Make-Whole Premium. An amount determined as of the day before the
applicable Prepayment Date (or date of purchase, as the case may be) which an
Independent Investment Banker determines to be equal to the excess, if any, of
(i) the present value of the remaining scheduled payments of such principal
amount or portion thereof and interest thereon (excluding interest accrued
from the immediately preceding Payment Date to such Prepayment Date or date of
purchase, as the case may be) to the Maturity of such Certificate in
accordance with generally accepted financial practices assuming a 360-day year
consisting of twelve 30-day months at a discount rate equal to the Treasury
Yield, all as determined by the Independent Investment Banker over (ii) the
outstanding principal amount of such Certificate plus accrued interest.
Manufacturer. Airbus Industrie G.I.E., a groupement d'interet
economique formed under the laws of France.
Maturity. With respect to any Certificate, the date on which the
final principal amount of such Certificate is scheduled to be due and payable.
Moody's. Moody's Investors Service, Inc.
Net Present Value of Rents. The net present value, as of the
Delivery Date, of Basic Rent set forth in Schedule II of the Lease, discounted
at a rate equal to the Debt Rate per annum compounded semi-annually.
Non-U.S. Person. Any Person other than a U.S. Person.
Obsolete Parts. Parts which are severable from the Aircraft in
accordance with clauses (ii) and (iii) of the proviso to Section 9.02(b) of
the Lease and the Lessee in good faith determines to be obsolete or no longer
suitable or appropriate for use on the Airframe or any Engine.
Officer's Certificate. When delivered pursuant to the Indenture, a
certificate signed by a Responsible Officer of the Lessee or the Owner
Trustee, as the case may be, and delivered to the Indenture Trustee. Each
such certificate shall include the statements provided for in Section 15.07 of
the Indenture.
Operative Agreements. The Participation Agreement, the Trust
Agreement, AVSA's FAA Bill of Sale, AVSA's Warranty Bill of Sale, the Airbus
Guaranty, the Purchase Agreement, the Purchase Agreement Assignment, the GTA,
the Engine Warranty Assignment, the French Pledge Agreement, the Lease, the
Lease Supplement, the Owner Participant Guaranty, the Owner Trustee Guaranty,
if any, any Ancillary Agreement entered into by or with the written consent of
the Indenture Trustee, which by its terms is an Operative Agreement, the
Certificates outstanding at the time of reference, the Indenture, the
Indenture and Security Agreement Supplement, the Consent and Agreement, the
AVSA Consent and Agreement, the Consent and Guaranty (to the extent assigned
by the Purchase Agreement Assignment), the Engine Consent, the Tax Indemnity
Agreement, each Liquidity Facility, the Intercreditor Agreement, the
Collateral Account Control Agreement and any Assignment and Assumption
Agreement.
Opinion of Counsel. When delivered pursuant to the Indenture, a
written opinion of legal counsel, who in the case of counsel (a) for the
Lessee may be (i) an attorney employed by the Lessee who is generally
empowered to deliver such written opinions, (ii) Davis Polk & Wardwell or a
successor firm or (iii) other counsel designated by the Lessee and reasonably
satisfactory to the Indenture Trustee and (b) for the Owner Trustee or the
Indenture Trustee, an attorney selected by such Person and, in the case of the
Owner Trustee, reasonably satisfactory to the Indenture Trustee.
Outstanding. When used with respect to Certificates, as of the date
of determination and subject to the provisions of Section 10.04 of the
Indenture, all Certificates theretofore executed and delivered under the
Indenture, with the exception of the following:
(i) Certificates theretofore cancelled by the Indenture Trustee or
delivered to the Indenture Trustee for cancellation pursuant to
Section 2.08 of the Indenture or otherwise;
(ii) Certificates for which prepayment money in the necessary amount
has been theretofore deposited with the Indenture Trustee in trust
for the Holders of such Certificates pursuant to Section 14.01 of the
Indenture; provided, that if such Certificates are to be prepaid,
notice of such prepayment has been duly given pursuant to the
Indenture or provision therefor satisfactory to the Indenture Trustee
has been made; and
(iii) Certificates in exchange for or in lieu of which other
Certificates have been executed and delivered pursuant to Article II
of the Indenture.
Owner Participant. The trustor originally named in the Trust
Agreement and any successor thereto, and any Person to which the Owner
Participant transfers, in accordance with the Trust Agreement, its right,
title and interest in and to the Operative Agreements and the Lessor's Estate.
Owner Participant Guarantor. Philip Morris Capital Corporation, a
Delaware corporation, and any other provider of an Owner Participant Guaranty.
Owner Participant Guaranty. The Owner Participant Guaranty dated the
Certificate Closing Date by the Owner Participant Guarantor in favor of the
Lessee, the Owner Trustee, the Indenture Trustee and the Pass Through Trustee,
and any guaranty delivered in compliance with Section 7.03(d) of the
Participation Agreement.
Owner Trustee. SSB, not in its individual capacity except as
otherwise expressly stated, but solely as Owner Trustee under the Trust
Agreement.
Owner Trustee Guarantor. The provider of an Owner Trustee Guaranty.
Owner Trustee Guaranty. Any guaranty delivered in compliance with
Section 11.01(b)(ii) of the Participation Agreement.
Owner's Economic Return. The Owner Participant's anticipated net
after-tax book yield and aggregate after-tax cash during the Basic Term
utilizing the multiple investment sinking fund method of analysis, computed on
the basis of the same methodology and assumptions as were utilized by the
Owner Participant in determining Basic Rent, Stipulated Loss Value and
Termination Value percentages, as the case may be, as such assumptions may be
adjusted for events which have been the basis of adjustments to Rent pursuant
to Section 3.04 of the Lease.
Participation Agreement. The Participation Agreement (Federal Express
Corporation Trust No. N673FE), dated as of May 1, 1997, among the Lessee, the
Owner Trustee not in its individual capacity except as otherwise expressly
provided therein, but solely as owner trustee, the Owner Participant, the
Indenture Trustee not in its individual capacity except as otherwise expressly
provided therein, but solely as indenture trustee, the Pass Through Trustee
not in its individual capacity except as otherwise expressly provided therein,
but solely as pass through trustee and the Subordination Agent not in its
individual capacity except as otherwise expressly provided therein, but solely
as subordination agent.
Parts. All appliances, parts, components, instruments, appurtenances,
accessories, furnishings and other equipment of whatever nature (other than
complete Engines or engines) which may from time to time be incorporated or
installed in or attached to the Airframe or any Engine or title to which
remains vested in the Lessor pursuant to Article 8 of the Lease.
Pass Through Agreement. The Pass Through Trust Agreement dated as of
May 1, 1997 between the Lessee and the Pass Through Trustee.
Pass Through Certificates. Any of the Pass Through Certificates,
1997-1-A, the Pass Through Certificates, 1997-1-B or the Pass Through
Certificates, 1997-1-C, in each case as issued by the related Pass Through
Trust; and "Pass Through Certificates" means all of the Pass Through
Certificates issued by each of the Pass Through Trusts.
Pass Through Closing Date. The Business Day on which the sale of the
Pass Through Certificates to the Underwriters pursuant to the Underwriting
Agreement takes place.
Pass Through Trust. The Federal Express Corporation 1997-1 Pass
Through Trust Class A, Federal Express Corporation 1997-1 Pass Through Trust
Class B and Federal Express Corporation 1997-1 Pass Through Trust Class C, in
each case formed pursuant to the related Series Supplement in accordance with
the Pass Through Agreement; and "Pass Through Trusts" means all of such Pass
Through Trusts.
Pass Through Trustee. First Security Bank, National Association, a
national banking association, in its capacity as Pass Through Trustee under
the Pass Through Agreement and each Pass Through Trust.
Past Due Rate. In respect of (A) any amount payable to the Owner
Participant or the Owner Trustee a rate per annum during the period from and
including the due date to but excluding the date on which such amount is paid
in full equal to 2% plus the Debt Rate and (B) any principal of or interest on
any Certificate or any other amount payable under the Indenture, any
Certificate or any other Operative Agreement that is not paid when due
(whether at Maturity, by acceleration, by optional or mandatory prepayment or
otherwise) to any Holder, the Indenture Trustee or the Pass Through Trustee, a
rate per annum during the period from and including the due date to but
excluding the date on which such amount is paid in full equal to (i) in the
case of any such amount payable to the Holder of any Certificate, 2% plus the
interest rate applicable to such Certificate and (ii) in the case of any other
such amount, 2% plus the Debt Rate.
Payment Date. Each January 15 and July 15 commencing on July 15,
1997.
Payment Default. Any event specified in Section 16.01(a) or 16.01(b)
of the Lease which with the giving of notice or lapse of time or both would
constitute an Event of Default.
Permitted Investments. Those investments enumerated in Section
23.01(a) (i), (ii), (iii) and (iv) of the Lease.
Person. Any individual, sole proprietorship, partnership, joint
venture, joint stock company, trust, unincorporated organization, association,
corporation, institution, entity or government (federal, state, local,
foreign or any agency, instrumentality, division or body thereof).
Preliminary Notice. Has the meaning specified in Section 4.01(a) of
the Lease.
Premium Termination Date. With respect to the Series A Certificates,
December 27, 2011, with respect to the Series B Certificates, February 5, 2010
and with respect to the Series C Certificates, March 22, 2007.
Prepayment Date. Has the meaning specified in Section 6.02(b) of the
Indenture.
Prepayment Price. Has the meaning specified in Section 6.02(b) of the
Indenture.
Principal Amount. With respect to a Certificate means the stated
original principal amount of such Certificate and, with respect to all
Certificates, means the aggregate stated original principal amounts of all
Certificates.
Property. Any right or interest in or to property of any kind
whatsoever, whether real, personal or mixed and whether tangible or intangible.
Proposed Termination Date. The proposed date of termination of the
Lease as specified by the Lessee in its notice given pursuant to Section 10.01
thereof.
Purchase Agreement. The Airbus A300-600R Freighter Purchase Agreement,
dated as of July 3, 1991 between AVSA and the Lessee, including all exhibits,
appendices and letter agreements attached thereto as originally executed or as
modified, amended or supplemented in accordance with the terms thereof, but
only to the extent that the foregoing relates to the Aircraft and to the
extent assigned pursuant to the Purchase Agreement Assignment.
Purchase Agreement Assignment. The Purchase Agreement Assignment
(Federal Express Corporation Trust No. N673FE), dated as of May 1, 1997 between
the Lessor and the Lessee.
Purchase Price. Has the meaning specified in Ancillary Agreement II.
Record Date. With respect to Payment Dates under the Indenture
(except a date for payment of defaulted interest), December 31 for January 15
Payment Dates and June 30 for July 15 Payment Dates, whether or not such date
is a Business Day.
Recourse Amount. Has the meaning specified in Section 17.10 of the
Participation Agreement.
Refinancing. A non-recourse loan to the Lessor arranged pursuant to
Section 15.01 of the Participation Agreement.
Register. Has the meaning set forth in Section 3.02 of the Indenture.
Registrar. Has the meaning set forth in Section 3.02 of the
Indenture.
Regulation D. Regulation D of the Board of Governors of the Federal
Reserve System (or any successor), as the same may be modified and
supplemented and in effect from time to time.
Related Indentures. Collectively, the Trust Indenture and Security
Agreement for each of Federal Express Corporation Trust Nos. N670FE, N671FE,
N672FE, N674FE, N583FE and N584FE, each dated as of May 1, 1997, between the
Owner Trustee and the Indenture Trustee, the Trust Indenture and Security
Agreement for Federal Express Corporation Trust No. N581FE, dated as of May 1,
1997, between Wilmington Trust Company, as owner trustee and the Indenture
Trustee, and the Trust Indenture and Security Agreement for Federal Express
Corporation Trust No. N587FE, dated as of December 1, 1996, as amended and
restated as of May 1, 1997, between Wilmington Trust Company, as owner trustee
and the Indenture Trustee.
Remaining Weighted Average Life. On a given date with respect to any
Certificate the number of days equal to the quotient obtained by dividing (i)
the sum of each of the products obtained by multiplying (a) the amount of each
then remaining scheduled payment of principal of such Certificate by (b) the
number of days from and including such prepayment date to but excluding the
dates on which each such payment of principal is scheduled to be made; by (ii)
the then outstanding principal amount of such Certificate.
Renewal Rent. The amount payable by the Lessee as rent in accordance
with Section 4.01 of the Lease during any Renewal Term.
Renewal Term. One or more terms with respect to which the Lessee has
exercised its option to renew the Lease pursuant to Section 4.01(a) thereof.
Rent. All payments due from the Lessee under the Lease as Basic Rent,
Renewal Rent and Supplemental Rent, collectively.
Rent Payment Date. December 11, 2020 and each January 15 and July 15
commencing on January 15, 1998.
Reoptimization Date. Has the meaning specified in Section 15.02(a)
of the Participation Agreement.
Replacement Aircraft. Any aircraft substituted for the Aircraft
pursuant to Section 11.03(a) of the Lease.
Replacement Airframe. Has the meaning set forth in Section 11.03 of
the Lease.
Replacement Engine. A General Electric CF6-80C2-A5F engine (or an
engine of the same or another manufacturer) of equal or greater value,
airworthiness, remaining useful life and utility as the Engine being replaced,
together with all Parts relating to such engine; provided, however, that if
such replacement engine is not a General Electric CF6-80C2-A5F engine, such
replacement engine must then be commonly used in the commercial aviation
industry on Airbus A300-600 airframes.
Responsible Officer. With respect to the Owner Trustee (except for
purposes of the Trust Agreement in which case the definition of Responsible
Officer set forth in Section 3.10 of the Trust Agreement is applicable) or the
Indenture Trustee, any officer in its Corporate Trust Administration, as the
case may be, designated by such Person to perform obligations under the
Operative Agreements, and with respect to any other party, any corporate
officer or (except in the case of the Owner Participant) other employee of a
party who, in the normal performance of his or her operational
responsibilities, with respect to the subject matter of any covenant,
agreement or obligation of such party pursuant to any Operative Agreement,
would have responsibility for and knowledge of such matter and the
requirements of any Operative Agreement with respect thereto.
S&P. Standard & Poor's Ratings Group.
Scheduled Delivery Date. The Delivery Date specified in the Delivery
Notice pursuant to Section 3.01 of the Participation Agreement.
SEC. The Securities and Exchange Commission of the United States and
any successor agencies or authorities.
Secured Obligations. Has the meaning specified in the Granting
Clause of the Indenture.
Securities Act. The Securities Act of 1933, as amended.
Series "A" or "Series A Certificates". Certificates issued and
designated as "Series A" under the Indenture, in the Principal Amount and
maturities and bearing interest as specified in Exhibit B to the Indenture
under the heading "Series A".
Series "B" or "Series B Certificates". Certificates issued and
designated as "Series B" under the Indenture, in the Principal Amount and
maturities and bearing interest as specified in Exhibit B to the Indenture
under the heading "Series B".
Series "C" or "Series C Certificates". Certificates issued and
designated as "Series C" under the Indenture, in the Principal Amount and
maturities and bearing interest as specified in Exhibit B to the Indenture
under the heading "Series C".
Series Supplement or Series Supplements. The Series Supplement
1997-1-A to be executed and delivered by the Lessee and the Pass Through
Trustee, the Series Supplement 1997-1-B to be executed and delivered by the
Lessee and the Pass Through Trustee or the Series Supplement 1997-1-C to be
executed and delivered by the Lessee and the Pass Through Trustee.
Sinking Fund Redemption Date. Has the meaning specified in Section
6.06 of the Indenture.
Sinking Fund Redemption Price. Has the meaning specified in Section
6.06 of the Indenture.
Special Aviation Counsel. Daugherty, Fowler & Peregrin.
Specified Investments. Shall mean (a) direct obligations of the
United States of America or obligations fully guaranteed by the United States
of America; (b) commercial paper rated A-1/P-1 by S&P and Moody's,
respectively or, if such ratings are unavailable, rated by any nationally
recognized rating organization in the United States equal to the highest
rating assigned by such rating organization; (c) investments in negotiable
certificates of deposit, time deposits, banker's acceptances, commercial paper
or other direct obligations of, or obligations guaranteed by, commercial banks
organized under the laws of the United States or of any political subdivision
thereof (or any U.S. branch of a foreign bank) with issuer ratings of at least
B/C by Thomson Bankwatch, having maturities no later than 90 days following
the date of such investment; (d) overnight federal funds transactions with
members of the Federal Reserve System arranged by federal funds brokers; or
(e) overnight repurchase agreements with respect to the securities described
in clause (a) above entered into with an office of a bank or trust company
which is located in the United States of America or any bank or trust company
which is organized under the laws of the United States or any state thereof
and has capital, surplus and undivided profits aggregating at least $500
million.
SSB. State Street Bank and Trust Company of Connecticut, National
Association, a national banking association.
Stipulated Loss Value. As of any Stipulated Loss Value Determination
Date during the Basic Term, the amount determined by multiplying the Purchase
Price by the percentage set forth in Schedule III of the Lease under the
heading "Stipulated Loss Value Factor" opposite such date (as such Schedule
III may be adjusted from time to time as provided in Section 3.04 of the
Lease), and during any Renewal Term, the amount determined pursuant to Section
4.01(b) of the Lease. Notwithstanding any other provisions of the Lease or
the Participation Agreement or the Indenture, each Stipulated Loss Value for
the Aircraft shall be, under any circumstances and in any event, an amount,
together with so much of the arrears portion of Basic Rent due and owing
through the date of payment of Stipulated Loss Value as does not constitute an
Excepted Payment, at least sufficient to pay in full as of such date of
payment the aggregate unpaid principal amount of and accrued interest on the
Certificates outstanding on such date of payment. Subject to the immediately
preceding sentence, it is understood and agreed that the amounts set forth on
Schedule III of the Lease, for dates other than Rent Payment Dates on which
arrears Basic Rent is due, fully reflect appropriate Basic Rent accruals and
credits of unearned Basic Rent through such date and, accordingly, no further
accrual or credit shall be required through such date whenever Stipulated Loss
Value is to be calculated with reference to any such date; provided that if
amounts in respect of Stipulated Loss Value are payable under the Operative
Agreements after the Stipulated Loss Determination Date in respect of which
such Stipulated Loss Value was determined, the Lessor shall be compensated
during the period from the Stipulated Loss Determination Date to such payment
date in accordance with the provisions of the Operative Agreements.
Stipulated Loss Value Determination Date. Each date set forth on
Schedule III of the Lease.
Subordination Agent. First Security Bank, National Association, a
national banking association, not in its individual capacity but solely as
Subordination Agent.
Supplemental Rent. (a) All amounts, liabilities and obligations
which the Lessee assumes or agrees to perform or pay under the Lease or under
the Participation Agreement or Tax Indemnity Agreement or any Ancillary
Agreement or any other Operative Agreement to the Lessor, the Owner
Participant, the Indenture Trustee, the Subordination Agent, any Liquidity
Provider or others, including, without limitation, payments of Stipulated Loss
Value, FPO Price and amounts calculated by reference to Termination Value, any
amounts of Make-Whole Premium payable under the Indenture to the extent
provided in Section 3.03 of the Lease, and all amounts required to be paid by
Lessee under the agreements, covenants and indemnities contained in the Lease
or in the Participation Agreement or the Tax Indemnity Agreement or any other
Operative Agreement, but excluding Basic Rent and (b) all amounts that the
Owner Trustee is obligated to pay in accordance with clause (b) of the last
paragraph of Section 2.04 of the Indenture.
Tax. Has the meaning set forth in Section 8.01(a) of the
Participation Agreement.
Tax Indemnity Agreement. The Tax Indemnity Agreement (Federal
Express Corporation Trust No. N673FE), dated as of May 1, 1997, between the
Lessee and the Owner Participant.
Term. The Basic Term of the lease for the Aircraft under the Lease
and, if renewed pursuant to Section 4.01 of the Lease, each Renewal Term for
the Aircraft for which the Lease is renewed, or such earlier date on which the
Lease is terminated pursuant to its terms.
Termination Date. A Rent Payment Date during the Basic Term that is
on or after December 31, 2004 in the case of Article 10 of the Lease, and in
the case of (i) Section 4.02(a)(A) of the Lease, the Rent Payment Date falling
on January 15, 2016, (ii) Section 4.02(a)(D) or (E) of the Lease, a Rent
Payment Date that is on or after the seventh anniversary of the Delivery Date
and (iii) Section 4.02(a)(F) of the Lease, the last day of the Basic Term.
Termination Value. As of any Termination Date, the amount determined
by multiplying the Purchase Price by the percentage set forth in Schedule IV
of the Lease under the heading "Termination Value Factor" opposite such
Termination Date (as such Schedule IV may be adjusted from time to time as
provided in Section 3.04 of the Lease). Notwithstanding any other provisions
of the Lease, the Participation Agreement or the Indenture, each Termination
Value shall be, under any circumstances and in any event, an amount, together
with so much of the arrears portion of Basic Rent due and owing through the
date of payment of any amount calculated by reference to Termination Value as
does not constitute an Excepted Payment, at least sufficient to pay in full as
of such date of payment the aggregate unpaid principal amount of and accrued
interest on the Certificates outstanding on such date of payment. Subject to
the immediately preceding sentence, it is understood and agreed that the
amounts set forth on Schedule IV of the Lease, for dates other than Rent
Payment Dates on which arrears Basic Rent is due, fully reflect appropriate
Basic Rent accruals and credits of unearned Basic Rent through such date and,
accordingly, no further accrual or credit shall be required through such date
whenever Termination Value is to be calculated with reference to any such
date; provided that if amounts in respect of Termination Value are payable
under the Operative Agreements after the Termination Date in respect of which
such Termination Value was determined, the Lessor shall be compensated during
the period from the Termination Date to such payment date in accordance with
the provisions of the Operative Agreements.
Transaction Costs. Those costs and expenses set forth in Section
10.01(a) of the Participation Agreement.
Transportation Code. Title 49 of the United States Code, as amended
and in effect on the date of the Lease or as subsequently amended, or any
successor or substituted legislation at the time in effect and applicable, and
the regulations promulgated pursuant thereto.
Treasury Yield. At the time of determination with respect to any
Certificate, the interest rate (expressed as a semi-annual equivalent and as a
decimal and, in the case of United States Treasury bills, converted to a bond
equivalent yield) determined to be the per annum rate equal to the semi-annual
yield to maturity for United States Treasury securities maturing on the
Average Life Date on such Certificate and trading in the public securities
markets either as determined by interpolation between the most recent weekly
average yield to maturity for two series of United States Treasury securities,
trading in public securities markets, (i) one maturing as close as possible to,
but earlier than, the Average Life Date of such Certificate and (ii) the other
maturing as close as possible to, but later than, the Average Life Date of
such Certificate. In each case as published in the most recent H.15(519) or,
if a weekly average yield to maturity for United States Treasury securities
maturing on the Average Life Date of such Certificate is reported on the most
recent H.15 (519), such weekly average yield to maturity as published in such
H.15(919). "H.15(519)" means the weekly statistical release designated as
such, or any successor publication, published by the Board of Governors of the
Federal Reserve System. The date of determination of a Make-Whole Premium
will be the third Business Day prior to the applicable prepayment date and the
"most recent H.15(519)" means the H.15(519) published prior to the close of
business on the third Business Day prior to the applicable prepayment date.
Trust Agreement. The Trust Agreement (Federal Express Corporation
Trust No. N673FE), dated as of May 1, 1997, between the Owner Participant and
the Owner Trustee in its individual capacity.
Trust Estate. The Lessor's Estate.
Trust Indenture Act. The Trust Indenture Act of 1939, as amended.
Trust Indenture Estate. All estate, right, title and interest of the
Indenture Trustee in and to any of the property, rights, interests and
privileges granted to the Indenture Trustee pursuant to the Granting Clause of
the Indenture, other than Excepted Payments and any and all other rights of
the Owner Trustee or the Owner Participant expressly reserved to the Owner
Trustee or the Owner Participant pursuant to the Indenture.
Underwriters. Morgan Stanley & Co. Incorporated, First Chicago
Capital Markets, Inc., Goldman, Sachs & Co. and J.P. Morgan & Co.
Underwriting Agreement. The Underwriting Agreement dated May 22, 1997
among the Lessee and the Underwriters.
United States, U.S. or US. The United States of America.
U.S. Air Carrier. Any United States air carrier as to which there is
in force a certificate issued pursuant to Section 41102(a) or Section 41103 of
the Transportation Code, and as to which there is in force an air carrier
operating certificate issued pursuant to Chapter 447 of the Transportation
Code and Part 121 of the regulations under such Transportation Code, for
aircraft capable of carrying ten (10) or more individuals or 6,000 pounds or
more of cargo, or which may operate as an air carrier by certification or
otherwise under any successor or substitute provision thereof or in absence
thereof.
U.S. Person. A Person described in Section 7701(a)(30) of the Code.
==============================================================================
TRUST AGREEMENT
(FEDERAL EXPRESS CORPORATION TRUST NO. N674FE)
Dated as of May 1, 1997
between
PMCC LEASING CORPORATION,
Trustor
and
STATE STREET BANK AND TRUST COMPANY OF CONNECTICUT,
NATIONAL ASSOCIATION,
Owner Trustee
COVERING ONE AIRBUS A300F4-605R AIRCRAFT
SERIAL NO. 781, REGISTRATION NO. N674FE
==============================================================================
Page
TABLE OF CONTENTS
PARTIES.................................................................... 1
RECITALS................................................................... 1
ARTICLE 1
THE LESSOR'S ESTATE
Section 1.01. Authorization and Direction to Owner Trustee............. 1
Section 1.02. Declaration of Trust..................................... 2
Section 1.03. Conditions Precedent..................................... 2
ARTICLE 2
DISTRIBUTIONS
Section 2.01. Predelivery Funding; Rent, Etc........................... 2
Section 2.02. Excepted Payments........................................ 3
Section 2.03. Distributions after Release of Lien of Indenture......... 3
Section 2.04. Manner of Making Distributions........................... 4
ARTICLE 3
THE OWNER TRUSTEE
Section 3.01. Acceptance of Trust and Duties........................... 5
Section 3.02. Limitation on Authority of Owner Trustee................. 5
Section 3.03. Notice of Default........................................ 5
Section 3.04. Action Upon Instructions................................. 6
Section 3.05. Certain Duties and Responsibilities of Owner Trustee..... 6
Section 3.06. Certain Rights of Owner Trustee.......................... 7
Section 3.07. No Representations or Warranties as to Certain Matters... 9
Section 3.08. Status of Moneys Received................................ 10
Section 3.09. Self-Dealing............................................. 10
Section 3.10. Definition of a Responsible Officer...................... 10
Section 3.11. Resignation or Removal of Owner Trustee.................. 10
Section 3.12. Estate and Rights of Successor Owner Trustee............. 11
Section 3.13. Merger or Consolidation of SSB........................... 11
Section 3.14. Co-Trustees.............................................. 12
Section 3.15. Interpretation of Agreements............................. 13
Section 3.16. Not Acting in Individual Capacity........................ 13
Section 3.17. Books and Records; Tax Returns........................... 13
ARTICLE 4
TERMINATION OF TRUST
Section 4.01. Termination.............................................. 14
Section 4.02. Termination at Option of the Trustor..................... 15
Section 4.03. Distribution of Lessor's Estate upon Termination......... 15
ARTICLE 5
[RESERVED]
ARTICLE 6
MISCELLANEOUS
Section 6.01. Indemnification.......................................... 16
Section 6.02. Limitations on the Trustor's Liability................... 17
Section 6.03. Fees; Compensation....................................... 17
Section 6.04. Supplements and Amendments............................... 17
Section 6.05. Nature of Title of Trustor............................... 17
Section 6.06. Power of Owner Trustee to Convey......................... 17
Section 6.07. Notices.................................................. 18
Section 6.08. Situs of Trust; Applicable Law; Severability............. 19
Section 6.09. Successors and Assigns................................... 19
Section 6.10. Headings and Table of Contents........................... 19
Section 6.11. Identification of Trust.................................. 19
Section 6.12. Counterparts............................................. 19
Section 6.13. Trustor Interest......................................... 19
Section 6.14. Performance by the Trustor............................... 19
Schedule I Definitions
TRUST AGREEMENT
(FEDERAL EXPRESS CORPORATION TRUST NO. N674FE)
TRUST AGREEMENT (FEDERAL EXPRESS CORPORATION TRUST NO. N674FE) dated
as of May 1, 1997 (this "Agreement") between STATE STREET BANK AND TRUST
COMPANY OF CONNECTICUT, NATIONAL ASSOCIATION, a national banking association
(in its individual capacity, "SSB", and not in its individual capacity but
solely as trustee hereunder, the "Owner Trustee"), and PMCC LEASING
CORPORATION, a Delaware corporation (together with its successors and permitted
assigns, the "Trustor"). The capitalized terms used herein, unless otherwise
herein defined or the context hereof shall otherwise require, shall have the
respective meanings set forth in Schedule I attached hereto.
W I T N E S S E T H :
-------------------
WHEREAS, the Trustor desires to create a trust for the purpose of
issuing Certificates, the proceeds of which issuance shall initially be held
by the Indenture Trustee on behalf of the Owner Trustee in the Collateral
Account and released, subject to the proviso to Section 3.02(a) of the
Participation Agreement, on the Delivery Date in order to finance a portion of
the Purchase Price of the Aircraft, to acquire the Aircraft from AVSA on the
Delivery Date, to lease the Aircraft to the Lessee on the Delivery Date and to
receive the benefits provided for herein.
WHEREAS, SSB is willing to accept the trust as herein provided and to
perform its obligations hereunder in its individual capacity or as the Owner
Trustee as the case may be.
NOW THEREFORE, in consideration of the mutual covenants and agreements
contained herein, SSB and the Trustor agree as follows:
ARTICLE 1
THE LESSOR'S ESTATE
Section 1.01. Authorization and Direction to Owner Trustee. The
Trustor hereby authorizes and directs (or has authorized and directed) the
Owner Trustee, not individually but solely as the Owner Trustee hereunder:
(a) to execute and deliver as and when specified in Sections 4.01
and 4.02 of the Participation Agreement and each of the other Operative
Agreements to which the Owner Trustee is a party and to enter into and
perform the transactions contemplated thereby including, without
limitation, accepting title to, and delivery of, the Aircraft from AVSA on
the Delivery Date, and taking all appropriate action to cause the Airframe
to be registered with the Federal Aviation Administration in the name of
the Owner Trustee;
(b) to execute and deliver from time to time the Certificates in the
manner and subject to the terms and conditions provided in the
Participation Agreement and the Indenture;
(c) to execute and deliver each other document referred to in the
Operative Agreements to which the Owner Trustee is a party or which the
Owner Trustee is required to deliver pursuant to the Operative Agreements;
(d) subject to the terms of this Agreement, to perform the
obligations and duties and, upon instruction of the Trustor, exercise the
rights of the Owner Trustee under the Operative Agreements; and
(e) to execute and deliver all such other instruments, documents or
certificates and take all such other actions in accordance with the
directions of the Trustor, as the Trustor may deem necessary or advisable
in connection with the Certificate Closing Date and the Delivery Date and
the transactions contemplated hereby, the taking of any such action by the
Owner Trustee in the presence of the Trustor or its counsel to evidence,
conclusively, the direction of the Trustor.
Section 1.02. Declaration of Trust. SSB hereby declares and agrees,
in its individual capacity, that it will, and in its capacity as the Owner
Trustee does, hold the Lessor's Estate upon the trust herein set forth for the
use and benefit of the Trustor, subject, however, to the provisions of, and
the Lien created by, the Indenture. This Agreement is not intended by the
Trustor to create, and the trust created hereby is not intended by the Trustor
and the other parties interested herein to constitute a business trust for
purposes of the Bankruptcy Code.
Section 1.03. Conditions Precedent. The right and obligation of the
Owner Trustee to take the actions required by Section 1.01 hereof shall be
subject to the condition that the terms and conditions of Section 4.01 or
4.02, as the case may be, of the Participation Agreement shall have been
complied with in a manner satisfactory to the Owner Trustee and the Trustor.
ARTICLE 2
DISTRIBUTIONS
Section 2.01. Predelivery Funding; Rent, Etc. (a) The Trustor and
the Owner Trustee acknowledge that the proceeds from the sale of the
Certificates to be effected on the Certificate Closing Date are to be held by
the Indenture Trustee in the Collateral Account in the manner specified in the
Indenture for application as provided therein and in Section 3.02 of the
Participation Agreement.
(b) The Trustor and the Owner Trustee acknowledge that the
Lease will be security for the Certificates pursuant to the Indenture which
provides that all moneys payable by the Lessee to the Owner Trustee under the
Lease (other than Excepted Payments) are to be first paid to the Indenture
Trustee while the Lien of the Indenture is in effect, for distribution in
accordance with the terms of Article V of the Indenture. Except for amounts
received from the Indenture Trustee, which shall be applicable only in
accordance with clause (iii) below, the Owner Trustee shall promptly apply
each payment of the Rent (other than Excepted Payments), Stipulated Loss
Value, Termination Value, and any proceeds from the sale, requisition or
disposition of the Aircraft received by it as follows:
(i) prior to the release of the Lien of the Indenture, each such
payment shall be payable directly to the Indenture Trustee (and if any of
the same are received by the Owner Trustee shall, upon receipt, be paid
over to the Indenture Trustee without deduction, set off or adjustment of
any kind) for distribution in accordance with the provisions of Article V
of the Indenture; provided, that any payments received by the Owner Trustee
from (x) the Lessee with respect to SSB's or the Owner Trustee's fees and
disbursements under this Agreement, or (y) the Trustor pursuant to Section
6.01 hereof shall not be paid over to the Indenture Trustee but shall be
retained by the Owner Trustee and applied toward the purpose for which such
payments were made;
(ii) after the release of the Lien of the Indenture, any amount
remaining after application in full in accordance with paragraph (b)(i) of
this Section 2.01 and which represents payments for which provision as to
the application thereof is made in any other Operative Agreement shall be
applied promptly to the purpose for which such payment shall have been made
in accordance with the terms of such Operative Agreement; and
(iii) after application in accordance with paragraphs (i) and (ii) of
this Section 2.01(b), or to the extent received from the Indenture Trustee
under the terms of the Indenture, the balance, if any, remaining shall be
paid to the Trustor.
Section 2.02. Excepted Payments. Notwithstanding any other provision
contained herein, all Excepted Payments at any time received by the Owner
Trustee shall be distributed promptly to the applicable Person entitled
thereto, and such payment shall not be deemed under any circumstances to be
part of the Lessor's Estate.
Section 2.03. Distributions after Release of Lien of Indenture.
Except as otherwise provided in Sections 2.01 and 2.02 hereof:
(a) all payments received and amounts realized by the Owner
Trustee under the Lease or otherwise with respect to the Aircraft or
any part thereof (including, without limitation, all payments
received pursuant to Section 17.01 of the Lease and amounts realized
upon the sale or lease of the Aircraft or any part thereof after the
termination of the Lease with respect thereto), to the extent
received or realized at any time after the Lien of the Indenture
shall have been released pursuant to the terms of the Indenture, and
(b) moneys not included in paragraph (a) of this Section 2.03
remaining as part of the Lessor's Estate after the Lien of the
Indenture has been released,
shall, to the extent required, be retained by the Owner Trustee as
reimbursement for all expenses hereunder or under the Lease not theretofore
reimbursed under this Agreement, the Lease or otherwise and to which the Owner
Trustee is entitled to be reimbursed pursuant to the provisions thereof, and
any balance remaining thereafter shall be distributed to the Trustor.
Section 2.04. Manner of Making Distributions. The Owner Trustee
shall make distributions or cause distributions to be made to (i) the Trustor
pursuant to this Article 2 by transferring by wire transfer in immediately
available funds the amount to be distributed to the account set forth in the
Participation Agreement or to such other account or accounts of the Trustor as
it may designate from time to time by written notice to the Owner Trustee (and
the Owner Trustee shall use best efforts to cause such funds to be transferred
by wire transfer on the same day as received, but in any case not later than
the next succeeding Business Day), and (ii) the Indenture Trustee pursuant to
this Article 2 by paying the amount to be distributed to the Indenture Trustee
in the manner specified in the Indenture; provided, that the Owner Trustee
shall invest overnight, for the benefit of the Trustor, in investments that
would be permitted by Article 23 of the Lease (but only to the extent funds
are received on or prior to 2:00 P.M. (Eastern Time) and such investments are
available and, if such investments are not available to the Owner Trustee in
investments which, after consultation with the Trustor, the Trustor shall
direct) all funds not transferred by wire transfer on the same day as they
were received. Notwithstanding the foregoing but subject always to the
provisions of, and the Lien created by, the Indenture, the Owner Trustee will,
if so requested by the Trustor by written notice, pay in immediately available
funds any and all amounts payable by the Owner Trustee hereunder to the
Trustor as directed by the Trustor.
ARTICLE 3
THE OWNER TRUSTEE
Section 3.01. Acceptance of Trust and Duties. SSB accepts the trust
hereby created and, subject to Section 1.03 hereof, in its capacity as the
Owner Trustee agrees to perform the same, including without limitation,
subject to Section 1.03 hereof, the actions specified in Section 1.01 hereof
as herein provided. The Owner Trustee agrees to disburse all monies that it
receives under the Operative Agreements in accordance with the terms hereof.
The Owner Trustee shall not be answerable or accountable in its individual
capacity except as a result of or arising from (a) the Owner Trustee's willful
misconduct or gross negligence (in its individual capacity or as trustee), (b)
any breach by the Owner Trustee of its representations, warranties and
covenants given in its individual capacity in this Agreement, Article 5 of the
Lease, Sections 7.02(a) and (b) and 7.04 of the Participation Agreement or its
representations, warranties and covenants given in its individual capacity in
Sections 3.05 and 3.08 of the Indenture, (c) the failure to use ordinary care
in receiving, handling and disbursing funds, (d) Lessor's Liens attributable
to it in its individual capacity, and (e) taxes, fees, or other charges on,
based on, or measured by, any fees, commissions or compensation received by
SSB or the Owner Trustee in connection with the transactions contemplated by
the Lease, the Indenture and the Operative Agreements including this Agreement.
Section 3.02. Limitation on Authority of Owner Trustee. The Owner
Trustee shall have no power, right, duty or authority to, and agrees that it
will not, manage, control, possess, use, sell, lease, dispose of or otherwise
deal with the Aircraft, Airframe, Engines, any Part thereof or any other
property at any time constituting a part of the Lessor's Estate, or otherwise
to take or refrain from taking any action under or in connection with the
Operative Agreements, except (i) to execute and deliver the Operative
Agreements to which it is a party, (ii) to exercise and carry out or cause to
be exercised or carried out the rights, duties and obligations of the Owner
Trustee hereunder and under the other Operative Agreements, or (iii) as
expressly provided in written instructions from the Trustor given pursuant to
Section 3.03 or 3.04 hereof; provided, that nothing in this Section 3.02 shall
limit in any manner the obligations of the Owner Trustee hereunder.
Section 3.03. Notice of Default. In the event that a Responsible
Officer in the Corporate Trust Department of the Owner Trustee shall have
actual knowledge of a Default or an Event of Default, or an Indenture Default
or an Indenture Event of Default, the Owner Trustee shall give or cause to be
given to the Trustor and the Indenture Trustee prompt telephone or facsimile
notice, followed by prompt confirmation thereof by certified mail, postage
prepaid (in any event within two Business Days of the discovery thereof), in
accordance with Article 14 of the Participation Agreement, of such Default,
Event of Default, Indenture Default or Indenture Event of Default. Subject to
the terms of Section 3.06(e) hereof and the rights of the Indenture Trustee
under the Indenture, the Owner Trustee shall take such action with respect to
such Default, Event of Default, Indenture Default or Indenture Event of
Default as shall be specified in written instructions from the Trustor;
provided that the Owner Trustee shall have no duty to take any (and shall take
no) action whatsoever in the absence of written instructions from the Trustor.
For all purposes of this Agreement and the Lease, in the absence of actual
knowledge of a Responsible Officer of the Owner Trustee, the Owner Trustee
shall not be deemed to have knowledge of a Default, Event of Default,
Indenture Default or Indenture Event of Default unless notified in writing by
the Lessee, the Trustor, the Indenture Trustee or any Certificate Holder.
Section 3.04. Action Upon Instructions. Upon the written
instructions at any time and from time to time of the Trustor, the Owner
Trustee will take or refrain from taking such action, not inconsistent with
provisions of the Indenture, as may be specified in such instructions.
Section 3.05. Certain Duties and Responsibilities of Owner Trustee.
(a)(i) The Owner Trustee undertakes to perform such duties and only such
duties as are specifically set forth herein, and with the degree of care
specified in Section 3.01 hereof, and in accordance with written instructions
given by the Trustor hereunder, and no implied duties, covenants or
obligations shall be read into this Agreement, any such instructions or the
Operative Agreements against the Owner Trustee, and the Owner Trustee agrees
that it will not manage, control, possess, use, sell, lease, dispose of or
otherwise deal with the Aircraft or any part of the Lessor's Estate except as
required by the terms of the Operative Agreements, any such instructions and as
otherwise provided herein; and
(ii) in the absence of bad faith on its part, the Owner Trustee may
conclusively rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon certificates or opinions furnished to
the Owner Trustee and conforming to the requirements of this Agreement or
the other Operative Agreements, but in the case of any such certificates or
opinions which by any provisions hereof or thereof are specifically
required to be furnished to the Owner Trustee, the Owner Trustee shall be
under a duty to examine the same to determine whether or not they conform
to the requirements of this Trust Agreement or the Operative Agreements.
(b) No provision hereof shall require SSB in its individual capacity
to expend or risk its own funds or otherwise incur any financial liability in
the performance of any of its duties hereunder, 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 or liability
is not reasonably assured to it. Notwithstanding the foregoing, SSB agrees in
its individual capacity that it will, at its own cost and expense, promptly
take such action as may be necessary to discharge duly all Lessor's Liens
attributable to it in its individual capacity and will claim no indemnity
therefor hereunder, or under the Participation Agreement or any Operative
Agreement.
(c) Whether or not therein expressly so provided, every provision of
this Agreement relating to the conduct or affecting the liability of or
affording protection to the Owner Trustee shall be subject to the provisions
of this Section 3.05, except that in the event of a conflict between this
Section 3.05 and Section 3.01 hereof, Section 3.01 hereof shall be controlling.
(d) The Owner Trustee will furnish to the Trustor, promptly upon
receipt thereof, duplicates or copies of all reports, notices, requests,
demands, certificates, financial statements and any other instruments
furnished to the Owner Trustee hereunder or under the other Operative
Agreements (including those furnished to the Indenture Trustee pursuant to the
terms of the Indenture) and not otherwise furnished to the Trustor.
(e) Notwithstanding anything herein to the contrary, the Owner Trustee
shall not be authorized and shall have no power to "vary the investment" of the
Trustor within the meaning of Treasury Regulations Section 301.7701-4(c)(1),
it being understood that the Owner Trustee shall have the power and authority
to fulfill its obligations under Section 2.06 hereof and Article 23 of the
Lease.
Section 3.06. Certain Rights of Owner Trustee. Except as otherwise
provided in Section 3.05 hereof:
(a) in the absence of bad faith on its part, the Owner Trustee may
rely and shall be protected in acting or refraining from acting upon any
resolution, certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order or other paper or document reasonably
believed by it to be genuine and to have been signed or presented by the
proper party or parties;
(b) any request, direction or authorization by the Trustor or any
other party to any other Operative Agreement shall be sufficiently
evidenced by a request, direction or authorization in writing, delivered to
the Owner Trustee, and signed in the name of such party by any of the
Chairman of the Board, the President, any Vice President, the Treasurer or
Assistant Treasurer or the Secretary or Assistant Secretary or other duly
authorized officer of such party; and any resolution of the Board of
Directors or committee thereof of such party shall be sufficiently
evidenced by a copy of such resolution certified by the Secretary or an
Assistant Secretary of such party, to have been duly adopted and to be in
full force and effect on the date of such certification, and delivered to
the Owner Trustee;
(c) whenever in the administration of this Agreement the Owner Trustee
shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder or under any of the
other Operative Agreements, the Owner Trustee (unless other evidence be
herein or therein specifically prescribed), absent actual knowledge of a
Responsible Officer of the Owner Trustee to the contrary, may rely in good
faith upon a certificate in writing, delivered to the Owner Trustee and
signed by any of the Chairman of the Board, the President, any Vice
President, the Treasurer or Assistant Treasurer or the Secretary or
Assistant Secretary of the Lessee, the Trustor, or the Indenture Trustee
and notice of such need for such proof or establishment shall be delivered
to the Trustor, who may advise the Owner Trustee in respect of such matter
and the Owner Trustee shall act in conformity with such advice;
(d) the Owner Trustee may exercise its powers and perform its duties
by or through such attorneys, agents and servants as it shall appoint with
due care, and it shall be entitled to rely upon the advice of counsel
reasonably selected by it with due care and shall be protected by the
advice of such counsel in anything done or omitted to be done in accordance
with such advice;
(e) the Owner Trustee shall not be under any obligation to take any
action under this Agreement or under any of the other Operative Agreements
at the request or direction of the Trustor unless the Persons making such
request or direction shall have offered to the Owner Trustee reasonable
security or indemnity against the costs, expenses and liabilities which
might be incurred by it in compliance with such request or direction; nor
shall the Owner Trustee be required to take any action deemed to impose on
the Owner Trustee any obligation to take any action, if the Owner Trustee
shall have been advised by its counsel that such action is unlawful or is
contrary to the terms of this Agreement or the other Operative Agreements;
(f) the Owner Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order or
other paper or document unless a Responsible Officer of the Owner Trustee
has actual knowledge that the facts or matters stated therein are false or
inaccurate, but the Owner Trustee in its discretion may make such further
inquiry or investigation into such facts or matters as it may see fit, and,
if the Owner Trustee shall determine to make such further inquiry or
investigation, it shall be entitled, to the same extent permitted to the
Lessor under the Lease, to examine the books and records of the Lessee to
reasonably determine whether the Lessee is in compliance with the terms and
conditions of the Lease and to examine the Aircraft, Airframe, Engines or
any Part thereof personally or by agent or attorney; and
(g) without limiting the generality of Section 3.05 hereof, except as
otherwise provided in written instructions given to the Owner Trustee by the
Trustor or as otherwise provided in the Indenture or the Participation
Agreement, the Owner Trustee shall not have any duty (i) to see to any
recording or filing of the Lease or of this Agreement or any financing
statement or other notice or document relating thereto or contemplated
under the Operative Agreements or to see to the maintenance of any such
recording or filing (other than FAA reporting requirements contained in 14
C.F.R. Sections 47.45 and 47.51), (ii) to see to any insurance on the
Aircraft or any part thereof or to effect or maintain any such insurance,
whether or not the Lessee shall be in default with respect thereto, other
than to forward to the Trustor and (to the extent provided in the
Indenture) the Indenture Trustee copies of all certificates, reports and
other written information which it receives from the Lessee pursuant to the
Lease, (iii) to see to the payment or discharge of any tax, assessment or
other governmental charges or any Lien (except any Lessor's Lien
attributable to it in its individual capacity) owing with respect to, or
assessed or levied against any part of the Lessor's Estate, (iv) to confirm
or verify any financial statements or reports of the Lessee, or (v) to
inspect the Aircraft at any time or ascertain or inquire as to the
performance or observance of any of the Lessee's covenants under the Lease.
Section 3.07. No Representations or Warranties as to Certain
Matters. NEITHER THE OWNER TRUSTEE NOR SSB MAKES OR SHALL BE DEEMED TO HAVE
MADE (a) ANY REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, AS TO THE TITLE,
AIRWORTHINESS, VALUE, CONDITION, WORKMANSHIP, DESIGN, COMPLIANCE WITH
SPECIFICATIONS, CONSTRUCTION, OPERATION, MERCHANTABILITY OR FITNESS FOR USE
FOR A PARTICULAR PURPOSE OF THE AIRCRAFT, AS TO THE ABSENCE OF LATENT OR OTHER
DEFECTS, WHETHER OR NOT DISCOVERABLE, AS TO THE ABSENCE OF ANY INFRINGEMENT OF
ANY PATENT, TRADEMARK OR COPYRIGHT, AS TO THE ABSENCE OF OBLIGATIONS BASED ON
STRICT LIABILITY IN TORT, OR ANY OTHER REPRESENTATION OR WARRANTY WHATSOEVER,
EXPRESS OR IMPLIED, WITH RESPECT TO THE AIRCRAFT OR ANY PART THEREOF, except
that SSB represents and warrants that on the Delivery Date the Owner Trustee
shall have received whatever right, title and interests in, to and under the
Aircraft that were conveyed to it by AVSA and SSB represents, warrants and
covenants that at all times on and after the Delivery Date the Aircraft shall
be free of all Lessor's Liens attributable to it, and that the Owner Trustee
shall comply with the last sentence of Section 3.05(b) hereof, or (b) any
representation or warranty as to the validity, legality or enforceability of
this Agreement or any other Operative Agreement to which the Owner Trustee is
a party, or any other document or instrument, or as to the correctness of any
statement contained in any thereof, except to the extent that any such
representation, warranty or statement is expressly made herein or therein as a
representation or warranty by the Owner Trustee or SSB and except that SSB
hereby represents and warrants that this Agreement has been, and (assuming the
due authorization, execution and delivery of this Agreement by the Trustor)
the other Operative Agreements to which the Owner Trustee is a party have been
(or at the time of execution and delivery of any such instrument by the Owner
Trustee hereunder or pursuant to the terms of the Participation Agreement that
such an instrument will be) duly executed and delivered by one of its officers
who is or will be, as the case may be, duly authorized to execute and deliver
such instruments on behalf of the Owner Trustee and that this Agreement has
been duly authorized, executed and delivered by SSB and (assuming due
authorization, execution and delivery of this Trust Agreement by the Trustor)
constitutes the legal, valid and binding obligation of SSB enforceable against
it in accordance with its terms, except as such enforceability may be limited
by bankruptcy, insolvency, reorganization, moratorium or other similar laws
affecting the rights of creditors generally and by general principles of
equity.
Section 3.08. Status of Moneys Received. All moneys received by the
Owner Trustee under or pursuant to any provision of this Agreement or any
Operative Agreement shall constitute trust funds for the purpose for which
they were paid or are held, but need not be segregated in any manner from any
other moneys except to the extent required by law and may be deposited by the
Owner Trustee under such conditions as may be prescribed or permitted by law
for trust funds, or may be invested in direct obligations of the United States.
Section 3.09. Self-Dealing. The Owner Trustee in its individual
capacity, or any corporation in or with which the Owner Trustee may be
interested or affiliated, or any officer or director of any such corporation,
may have normal commercial relations, and otherwise deal, in the ordinary
course of business, with the Lessee or any other corporation having relations
with the Lessee to the full extent permitted by law.
Section 3.10. Definition of a Responsible Officer. For purposes of
this Trust Agreement only, "Responsible Officer" when used with respect to the
Owner Trustee means the Chairman or the Vice-Chairman of the Board of
Directors, the Chairman or Vice-Chairman of the Executive Committee of the
Board of Directors, the President, any Vice President (whether or not
designated by a number or a word or words added before or after the title
"Vice President"), the Secretary, any Assistant Secretary, or any other
officer in the Corporate Trust Department of SSB customarily performing
functions similar to those performed by any of the above designated officers.
Section 3.11. Resignation or Removal of Owner Trustee. The Owner
Trustee or any successor thereof (a) shall resign if required to do so
pursuant to Section 7.02(b) of the Participation Agreement and (b) may resign
at any time without cause by giving at least 60 days' prior written notice to
the Trustor and the Indenture Trustee, such resignation in each case to be
effective only upon the appointment of a successor trustee and the acceptance
of such appointment by such successor. In addition, the Trustor may at any
time remove the Owner Trustee without cause by an instrument in writing
delivered to the Owner Trustee and the Indenture Trustee, such removal to be
effective only upon the appointment by the Trustor of a successor Owner
Trustee and the acceptance of such appointment by such successor. Upon the
giving of notice of resignation or removal of the Owner Trustee, the Trustor
may appoint a successor Owner Trustee by an instrument signed by the Trustor.
If the Trustor shall not have so appointed a successor Owner Trustee within 30
days after such resignation or removal, the Owner Trustee, the Indenture
Trustee or the Trustor may apply to any court of competent jurisdiction to
appoint a successor Owner Trustee to act until such time, if any, as a
successor or successors shall have been appointed by the Trustor as above
provided. Any successor Owner Trustee so appointed by a court shall be
superseded by any successor Owner Trustee subsequently appointed by the
Trustor.
The appointment of any successor Owner Trustee shall be subject to the
conditions set forth in Section 11.01 of the Participation Agreement.
Section 3.12. Estate and Rights of Successor Owner Trustee. Any
successor Owner Trustee, however appointed, shall execute and deliver to the
predecessor Owner Trustee, with a copy to the Trustor and the Indenture
Trustee, an instrument accepting such appointment, in form and substance
acceptable to the predecessor Owner Trustee and the Trustor and thereupon each
successor Owner Trustee, without further act, shall become vested with all the
estates, properties, rights, powers, duties and trust of the predecessor Owner
Trustee in the trust hereunder with like effect as if originally named as an
Owner Trustee herein, but nevertheless upon the written request of such
successor Owner Trustee, such predecessor Owner Trustee shall execute and
deliver an instrument transferring to such successor Owner Trustee, upon the
trust herein expressed, all estates, properties, rights, powers, duties,
property or moneys then held by such predecessor Owner Trustee upon the trust
herein expressed. Upon any such transfer by a predecessor Owner Trustee, such
predecessor Owner Trustee shall provide the successor Owner Trustee and
Trustor an accounting of the Lessor's Estate and the trust hereunder.
Upon the appointment of any successor Owner Trustee hereunder, the
predecessor Owner Trustee will use its best efforts to cause registration of
the Aircraft included in the Lessor's Estate to be transferred upon the
records of the Aeronautics Authority or other registry where the Aircraft may
then be registered into the name of the successor Owner Trustee and shall
otherwise use its best efforts to comply, or assist the successor Owner
Trustee in complying, with the provisions of Section 11.01 of the
Participation Agreement.
Section 3.13. Merger or Consolidation of SSB. Any corporation into
which SSB in its individual capacity may be merged or with which it may be
consolidated, or any corporation resulting from any merger or consolidation to
which SSB shall be a party, or any corporation to which substantially all the
business of the Owner Trustee in its individual capacity may be transferred,
shall, subject to Section 11.01 of the Participation Agreement, be the Owner
Trustee under this Agreement without further act; provided, that such
corporation shall not also be the Indenture Trustee.
Section 3.14. Co-Trustees. At any time, if the Owner Trustee or the
Trustor shall deem it necessary or prudent or desirable in order to conform to
legal requirements of any jurisdiction in which any part of the Lessor's
Estate may at the time be located, the Owner Trustee by an instrument in
writing signed by it, shall appoint one or more Persons approved by the
Trustor to act as co-trustee, or co-trustees, jointly with the Owner Trustee,
or separate trustee or separate trustees (except insofar as local law makes it
necessary or prudent or desirable for any such co-trustee or separate trustee
to act alone), of all or any part of the Lessor's Estate, and to vest in such
Person or Persons, in such capacity, such title to the Lessor's Estate or any
part thereof, and such rights, powers, duties, trusts or obligations as the
Trustor may consider necessary or prudent or desirable. The Owner Trustee
shall not be liable for any act or omission of any co-trustee or separate
trustee appointed under this Section 3.14. No appointment of, or action by,
any co-trustee or separate trustee appointed under this Section 3.14 will
relieve the Owner Trustee of any of its obligations under any Operative
Agreement or otherwise affect any of the terms of the Indenture or adversely
affect the interests of the Indenture Trustee or the Certificate Holders in
the Trust Indenture Estate.
Any co-trustee or separate trustee may, at any time by an instrument
in writing, constitute the Owner Trustee its or his attorney-in-fact and agent
with full power and authority to do all acts and things and to exercise all
discretion on its or his behalf and in its or his name subject to the
conditions of this Agreement.
Every additional trustee hereunder shall be a Citizen of the United
States and, to the extent permitted by law, be appointed and act, and the
Owner Trustee and its successors shall act, subject to the following
provisions and conditions:
(A) all powers, duties, obligations and rights conferred upon the
Owner Trustee in respect of the custody, control and management of monies,
the Aircraft or documents authorized to be delivered hereunder or under the
Participation Agreement shall be exercised solely by the Owner Trustee;
(B) all other rights, powers, duties and obligations conferred or
imposed upon the Owner Trustee shall be conferred or imposed upon and
exercised or performed by the Owner Trustee and such additional trustee
jointly, except to the extent that under any law of any jurisdiction in
which any particular act or acts are to be performed (including the holding
of title to the Lessor's Estate) the Owner Trustee shall be incompetent or
unqualified to perform such act or acts, in which event such rights,
powers, duties and obligations shall be exercised and performed by such
additional trustee;
(C) no power given to, or which is provided hereby may be exercised
by, any such additional trustee, except jointly with, or with the consent
in writing of, the Owner Trustee;
(D) no trustee hereunder shall be personally liable by reason of any
act or omission of any other trustee hereunder except as otherwise provided
hereunder; and
(E) the Trustor, at any time, by an instrument in writing may remove
any such additional trustee.
Section 3.15. Interpretation of Agreements. In the event that the
Owner Trustee is unsure as to the application of any provision of this
Agreement or any other Operative Agreement or any other agreement relating to
the transactions contemplated by the Operative Agreements or such provision is
ambiguous as to its application, or is, or appears to be, in conflict with any
other applicable provision, or in the event that this Agreement or any other
Operative Agreement permits any determination by the Owner Trustee or is
silent or incomplete as to the course of action which the Owner Trustee is
required to take with respect to a particular set of facts, the Owner Trustee
shall request in writing sent in accordance with Article 14 of the
Participation Agreement instructions of the Trustor and, to the extent that
the Owner Trustee acts in good faith in accordance with any instructions
received from the Trustor, shall not be liable to any Person; provided, that
in the event that no response is made to the Owner Trustee by the Trustor
within 25 Business Days after such request, the Owner Trustee shall not be
liable to any Person for acts taken by the Owner Trustee in good faith in what
it deems to be the best interests of the Trustor or for any failure to act in
any situation described above in this Section 3.15. The provisions of this
Section 3.15 shall not be applicable to the Owner Trustee's obligations set
forth in the last sentence of Section 3.01 hereof.
Section 3.16. Not Acting in Individual Capacity. In carrying out
the trust hereby created, the Owner Trustee will act solely as trustee
hereunder and not in its individual capacity except as expressly provided
herein or in the other Operative Agreements to which it is a party; and all
Persons, other than the Trustor as provided in this Agreement, having any
claim against the Owner Trustee by reason of the transactions contemplated
hereby shall look only to the Lessor's Estate for payment or satisfaction
thereof, except to the extent provided in the last sentence of Section 3.01
hereof.
Section 3.17. Books and Records; Tax Returns. The Owner Trustee
shall be responsible for the keeping of all appropriate books and records
relating to its receipt and disbursement of all moneys under this Agreement or
any Operative Agreement and shall, upon the request of the Trustor or its duly
authorized representative, make available such books and records at its
principal trust office during normal business hours for inspection and
copying. The Owner Trustee agrees to sign and file all returns with respect
to Taxes that the Trustor prepares (or causes to be prepared) and directs the
Owner Trustee to sign and file. The Owner Trustee, upon request, will furnish
the Trustor with all such information as may be reasonably required or
necessary from the Owner Trustee in connection with the preparation of such tax
returns and in connection with any other filing or audit and related litigation
obligations. At the request of the Trustor, and at the expense of the Lessee,
the Owner Trustee shall file an application with the Internal Revenue Service
for a taxpayer identification number with respect to the trust created
hereunder and prepare or cause to be prepared and sign and/or file the Federal
fiduciary tax return with respect to Taxes due and payable by the Trust in
connection with the transactions contemplated hereby or by any other Operative
Agreement; provided, however, that the Owner Trustee shall send a completed
copy of each such return to the Trustor not more than 60 nor less than 30 days
prior to the due date of such return; provided that the Owner Trustee shall
have timely received all necessary information to complete and deliver to the
Trustor such return. The Trustor, upon request, will furnish the Owner Trustee
with all such information as may be required from the Trustor in connection
with the preparation of such income tax returns. The Owner Trustee shall keep
copies of all returns delivered to or filed by it.
ARTICLE 4
TERMINATION OF TRUST
Section 4.01. Termination. This Agreement and the trust created and
provided for hereby shall cease and be terminated in any one of the following
events, whichever shall first occur:
(a) The sale or other final disposition by the Owner Trustee of all
of its interest in all property constituting or included in the Lessor's
Estate and, if the Indenture shall then be in effect, the sale or other
disposition by the Indenture Trustee of all of its interest in all property
constituting or included in the Lessor's Estate, and the final disposition
by the Owner Trustee and, if the Indenture shall then be in effect, the
Indenture Trustee, of all moneys or other property or proceeds constituting
part of the Lessor's Estate in accordance with the terms hereof; or
(b) 21 years less one day from the death of the last survivor of the
descendants of Queen Victoria of England living on the date of this
Agreement; provided, however, that if the Trust shall be or become valid
under applicable law for a period subsequent to 21 years less one day from
the death of the last survivor of the descendants of Queen Victoria of
England living on the date of this Agreement or, without limiting the
generality of the foregoing, if legislation shall become effective
providing for the validity or permitting the effective grant of such trust
for a period, in gross, exceeding the period for which such trust is
hereinabove stated to extend and be valid, then such trust shall not
terminate as provided in the first part of this sentence but shall extend
to and continue in effect until, but only if such non-termination and
extension shall then be valid under applicable law, such time as the same
shall, under applicable law, cease to be valid.
Section 4.02. Termination at Option of the Trustor. Notwithstanding
Section 4.01 hereof, this Agreement and the trust created hereby shall
terminate and the Trust Estate shall be distributed to the Trustor, and this
Agreement shall be of no further force and effect, upon the election of the
Trustor by notice to the Owner Trustee, if such notice shall be accompanied by
the written agreement (in form and substance satisfactory to the Owner
Trustee) of the Trustor assuming all the obligations of the Owner Trustee
under or contemplated by the Operative Agreements or incurred by it as trustee
hereunder and releasing the Owner Trustee therefrom; provided, however, that
such notice may be given only after the time the Lien of the Indenture is
discharged under Section 14.01 of the Indenture and the Lease has terminated
unless the Trustor shall have received the prior written consent of the
Indenture Trustee to any such termination in which case such notice may be
given while the Lien of the Indenture is outstanding.
Section 4.03. Distribution of Lessor's Estate upon Termination.
Upon any termination of this trust pursuant to the provisions of Section 4.01
hereof, the Owner Trustee shall convey the Lessor's Estate (subject to all
obligations, if any, of the Owner Trustee then existing under the Operative
Agreements to which the Owner Trustee is a party) to such purchaser or
purchasers or the Trustor, as the case may be, and for such amount and on such
terms as shall be specified in written instructions from the Trustor delivered
to the Owner Trustee prior to the date of termination; provided, that (i) if
at the time of any termination the Lease remains in force and effect, then the
Lessor's Estate shall be sold as a unit (and not in parcels) and subject to
the Lease, and (ii) in the event such written instructions are not delivered
to the Owner Trustee on or before the date of termination, the Owner Trustee
shall transfer title to the Lessor's Estate to the Trustor. Upon making such
transfer or sale and accounting for all funds which have come into its hands,
the Owner Trustee shall be entitled to receipt of any sums due and owing to
the Owner Trustee for expenses incurred pursuant hereto as set forth in
Section 2.05 hereof.
ARTICLE 5
[RESERVED]
ARTICLE 6
MISCELLANEOUS
Section 6.01. Indemnification. The Trustor shall assume liability
for, and shall indemnify, protect, save and keep harmless SSB from and against
any and all liabilities, obligations, losses, damages, penalties, taxes,
claims, actions, proceedings, suits, costs (including reasonable attorneys'
fees), expenses and disbursements of any kind and nature whatsoever ("Trust
Claims") imposed on, incurred by or asserted against the Owner Trustee or SSB,
as the case may be (but only to the extent the Owner Trustee or SSB, as the
case may be, is not indemnified by the Lessee for such Trust Claims under any
Operative Document or is not indemnified by any other Person for such Trust
Claims, within a reasonable time after demand therefor), in any way relating
to or arising out of (X) the Trust Estate or any of the properties included
therein and (Y) the administration of the Trust Estate or the action of
inaction of the Owner Trustee hereunder or under the Operative Documents
including, but not limited to, claims under any Environmental Laws; provided,
however, that (a) the Trustor shall not be required to indemnify the Owner
Trustee or SSB in the case of (i) willful misconduct, negligence with respect
to handling of funds, gross negligence or bad faith of the Owner Trustee or
SSB, as the case may be, (ii) the Owner Trustee's or SSB's failure to use
ordinary care in the handling of monies constituting part of the Trust Estate,
(iii) Taxes of the Owner Trustee or SSB, as the case may be, that are based on
or measured by the compensation received by SSB for acting as Owner Trustee
hereunder, and (iv) items excluded from indemnification by the Lessee as, as
to the extent, provided in Section 8.01(b)(i-xii) and 9.01(b)(i-ix) of the
Participation Agreement, and (b) the Trustor shall not be required to
indemnify with respect to Trust Claims resulting from a breach of the
covenants by SSB in Article 3 hereof or Trust Claims resulting because any
representation or warranty of the Owner Trustee or SSB, as the case may be,
contained in any Operative Document proves to be untrue or inaccurate or the
failure by the Owner Trustee or SSB, as the case may be, to perform or observe
any agreements, covenants or conditions to be performed or observed by it in
any of the Operative Documents. None of the foregoing exclusions shall limit
the obligation of the Trustor to indemnify SSB (but SSB shall still be
required to seek indemnification from the Lessee before making a claim against
the Trustor hereunder unless such exclusion is otherwise limited under
Sections 8.01(b) and 9.01(b) of the Participation Agreement), (i) for actions
taken in accordance with written instructions received from the Trustor, and
(ii) to the extent such exclusions are attributable to acts or omissions of
the Trustor. The payor of any indemnity under this Section 6.01 shall be
subrogated to any right of the person indemnified in respect of the matter as
to which such indemnity was paid. The indemnities contained in this Section
6.01 shall survive the termination of this Agreement.
Section 6.02. Limitations on the Trustor's Liability. The Trustor
shall not have any liability for the performance of this Agreement except as
expressly set forth herein.
Section 6.03. Fees; Compensation. Except as provided in Section
3.06(e) or 6.01 hereof, the Owner Trustee agrees that it shall have no right
against the Trustor or the Trust Estate for any fee as compensation for its
services hereunder.
Section 6.04. Supplements and Amendments. At any time and from time
to time, only upon the written request of the Trustor (a) SSB and the Trustor
shall execute a supplement hereto for the purpose of adding provisions to, or
changing or eliminating provisions of, this Agreement as specified in such
request and (b) the Owner Trustee shall, subject to the provisions of Section
8.01 of the Indenture, enter into or consent to such written amendment or
modification of or supplement to any of the Operative Agreements as the
Trustor and any other necessary parties may agree to in writing and as may be
specified in such request, or execute and deliver such written waiver of the
terms of any of the Operative Agreements as may be agreed to in writing by the
Trustor and as may be specified in such request; provided, that (i) the Owner
Trustee shall not execute any such supplement, amendment, waiver or
modification without the prior written consent of the Trustor, (ii) if in the
reasonable opinion of the Owner Trustee any document required to be executed
by it pursuant to this Section adversely affects any right or duty of, or
immunity or indemnity in favor of, the Owner Trustee under this Agreement or
any other Operative Agreement, the Owner Trustee may in its discretion
decline to execute such document and (iii) any amendment or supplement to this
Agreement shall comply with the provisions of Section 7.13 of the
Participation Agreement. It shall not be necessary that any request pursuant
to this Section specify the particular form of the proposed document to be
executed pursuant to such request, but it shall be sufficient if such request
shall indicate the substance thereof. Promptly after the execution by SSB or
the Owner Trustee of any document pursuant to this Section, the Owner Trustee
shall mail a conformed copy thereof to the Trustor, the Indenture Trustee and
the Lessee, but the failure of the Owner Trustee to mail such conformed copies
shall not impair or affect the validity of such document.
Section 6.05. Nature of Title of Trustor. The Trustor shall not
have any legal title to any part of the Lessor's Estate. No transfer, by
operation of law or otherwise, of the right, title and interest of the Trustor
in and to the Lessor's Estate or the trust hereunder shall operate to
terminate this Agreement or Lessor's Estate.
Section 6.06. Power of Owner Trustee to Convey. Any assignment,
sale, transfer or other conveyance by the Owner Trustee of the interest of the
Owner Trustee in the Operative Agreements or in the Aircraft or any part
thereof pursuant to and in compliance with the terms of this Agreement or the
Operative Agreements shall bind the Trustor and shall be effective to transfer
or convey all right, title and interest of the Owner Trustee in and to the
Operative Agreements or the right, title and interest of the Owner Trustee and
the Trustor in and to the Aircraft or such part thereof. No purchaser or
other grantee shall be required to inquire as to the authorization, necessity,
expediency or regularity of such assignment, sale, transfer or conveyance or
as to the application of any sale or other proceeds with respect thereto by
the Owner Trustee.
Section 6.07. Notices. All notices, demands, declarations and other
communications required by this Agreement shall be in writing and shall be
deemed received (a) if given by telecopier, when transmitted and the
appropriate telephonic confirmation received if transmitted on a Business Day
and during normal business hours of the recipient, and otherwise on the next
Business Day following transmission, (b) if given by certified mail, return
receipt requested, postage prepaid five Business Days after being deposited in
the United States mail, and (c) if given by FedEx service or other means, when
received or personally delivered, addressed:
If to the Owner Trustee: State Street Bank and Trust Company of Connecticut,
National Association
c/o State Street Bank and Trust Company
Two International Place
4th Floor
Boston, Massachusetts 02110
Attention: Corporate Trust Department
Telephone: (617) 664-5526
Facsimile: (617) 664-5371
If to the Trustor: PMCC Leasing Corporation
200 First Stamford Place
Stamford, Connecticut 06902
Attention: Vice President Leasing
with a copy to Director, Portfolio Administration
Telephone: (914) 335-5000
Facsimile: (914) 335-8301
If to the Indenture
Trustee: First Security Bank, National Association
79 South Main Street
Salt Lake City, Utah 84111
Attention: Corporate Trust Department
Telephone: (801) 246-5630
Facsimile: (801) 246-5053
or as to any of the foregoing parties at such other address as such party may
designate by notice duly given in accordance with this Section to the other
parties.
Section 6.08. Situs of Trust; Applicable Law; Severability. THIS
AGREEMENT SHALL IN ALL RESPECTS BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE INTERNAL LAWS OF THE STATE OF CONNECTICUT, INCLUDING ALL MATTERS OF
VALIDITY, CONSTRUCTION AND PERFORMANCE. If any provision of this Agreement
shall be invalid or unenforceable, the remaining provisions hereof shall
continue to be fully effective; provided, that such remaining provisions do
not increase the obligations or liabilities of the Owner Trustee or the
Trustor.
Section 6.09. Successors and Assigns. This Agreement shall be
binding upon and shall inure to the benefit of, and shall be enforceable by,
the parties hereto and their respective successors and permitted assigns,
including any successive holder of the Beneficial Interest, but only to the
extent the Beneficial Interest has been transferred or assigned in accordance
with the limitations of Section 7.03(d) of the Participation Agreement.
Section 6.10. Headings and Table of Contents. The headings of the
Articles and Sections of this Agreement and the Table of Contents are inserted
for convenience only and shall not affect the meaning or construction of any
of the provisions hereof.
Section 6.11. Identification of Trust. This trust may for
convenience be referred to as the "Federal Express Corporation Trust No.
N674FE."
Section 6.12. Counterparts. This instrument may be executed in any
number of counterparts or upon separate signature pages bound together in
several counterparts, each of which when so executed shall be deemed to be an
original, and such counterparts together shall constitute and be one and the
same instrument.
Section 6.13. Trustor Interest. The Trustor has only a beneficial
interest in any specific property of this Trust. No creditor of the Trustor
shall have any right to obtain possession of, or otherwise exercise legal or
equitable remedies with respect to, the property of this trust (as opposed to
the Trustor's beneficial interest in this trust).
Section 6.14. Performance by the Trustor. Any obligation of the
Owner Trustee hereunder or under any Operative Agreement or other document
contemplated herein may be performed by the Trustor and any such performance
shall not be construed as a revocation of the trust created hereby.
IN WITNESS WHEREOF, SSB and the Trustor have caused this Agreement to
be duly executed all as of the date first above written.
PMCC LEASING CORPORATION
By:
-------------------------------------------------
Name: Joan D. Woodroof
Title: Manager, Structured Finance
STATE STREET BANK AND TRUST COMPANY OF
CONNECTICUT, NATIONAL ASSOCIATION
By:
-------------------------------------------------
Name: Paul D. Allen
Title: Vice President
SCHEDULE I
DEFINITIONS
(FEDERAL EXPRESS CORPORATION TRUST NO. N674FE)
GENERAL PROVISIONS
The following terms shall have the following meanings for all
purposes of the Operative Agreements (other than the Pass Through Agreement,
the Series Supplements, the Intercreditor Agreement and the Liquidity
Facilities) referred to below, unless otherwise defined in an Operative
Agreement or the context thereof shall otherwise require. In the case of any
conflict between the provisions of this Schedule and the provisions of any
Operative Agreement, the provisions of such Operative Agreement shall control
the construction of such Operative Agreement.
Unless the context otherwise requires, (i) references to agreements
shall be deemed to mean and include such agreements as amended and
supplemented from time to time, and (ii) references to parties to agreements
shall be deemed to include the successors and permitted assigns of such
parties.
DEFINED TERMS:
Additional Insured. As defined in Article 13 of the Lease.
Aeronautics Authority. As appropriate, the Federal Aviation
Administration and/or the Administrator of the Federal Aviation
Administration, any successor to the former United States Civil Aeronautics
Board, or any Person, governmental department, bureau, commission or agency
located in the United States succeeding to the functions of any of the
foregoing.
Affidavits. The affidavits of citizenship of the Owner Trustee and
the Owner Participant.
Affiliate. With respect to any Person, any other Person directly or
indirectly controlling, controlled by or under common control with such
Person. For the purposes of this definition, "control" (including "controlled
by" and "under common control with") shall mean the power, directly or
indirectly, to direct or cause the direction of the management and policies of
such Person whether through the ownership of voting securities or by contract
or otherwise. In no event shall the Owner Trustee or the Lessor be deemed an
Affiliate of the Owner Participant.
After-Tax Basis. A basis such that any payment to be received by a
Person shall be supplemented by a further payment to such Person so that the
sum of the two payments, after deduction of all Taxes resulting from the
receipt or accrual of such payments, shall be equal to the payment to be
received. In the case of amounts payable to the Lessor, the Owner Participant,
or any corporate Affiliate of the Owner Participant, it shall be presumed that
such Person is at all times subject to Federal income tax at the maximum
marginal rate generally applicable to corporations from time to time and
actual state, local and foreign income taxes.
Air Carrier. Any U.S. Air Carrier and any "foreign air carrier" (as
defined in the Transportation Code) as to which there is in force a permit
granted under Section 41302 of the Transportation Code.
Airbus Guaranty. The Guaranty to be dated the Delivery Date executed
by the Manufacturer and guaranteeing AVSA's Warranty Bill of Sale.
Aircraft. The Airframe to be sold by AVSA to the Owner Trustee as
provided in the Participation Agreement and to be leased under the Lease (or
any permitted substitute airframe thereunder) together with two Engines
(whether either is an initial Engine or a Replacement Engine) whether or not
any of such initial or Replacement Engines may from time to time be installed
on such Airframe or may be installed on any other airframe or on any other
aircraft, including any aircraft substituted pursuant to Section 11.03 of the
Lease. Prior to delivery of the initial Lease Supplement, references in the
Operative Agreements (including Section 3.05 of the Participation Agreement)
to Aircraft shall mean the Airbus A300F4-605R airframe bearing FAA
Registration Number N674FE and Manufacturer's serial number 781, together with
two General Electric CF6-80C2-A5F engines.
Airframe. The Airbus A300F4-605R aircraft (excluding the Engines or
engines from time to time installed thereon) to be leased by the Lessor to the
Lessee pursuant to the Lease and the initial Lease Supplement and having the
United States FAA Registration Number initially and manufacturer's serial
number specified in the initial Lease Supplement, including (i) all Parts in
respect thereof and (ii) any Replacement Airframe which may be substituted
pursuant to Section 11.03 of the Lease.
Ancillary Agreement. Any written agreement of the Lessee to which the
Lessor is a party or to which the Lessor has consented in writing entered into
on or prior to the Delivery Date or any date thereafter in connection with the
transactions contemplated by the Operative Agreements, as such agreement may
be amended and supplemented from time to time with the consent of the Lessor
and delivered to the Owner Trustee, the Indenture Trustee, the Pass Through
Trustee, the Subordination Agent, each Liquidity Provider and the Owner
Participant.
Ancillary Agreement I. The Ancillary Agreement I (Federal Express
Corporation Trust No. N674FE), dated the Certificate Closing Date, among the
Lessee, the Owner Trustee, not in its individual capacity, but solely as Owner
Trustee, the Owner Participant and the Indenture Trustee not in its individual
capacity, but solely as Indenture Trustee, as originally executed or as
amended, modified or supplemented with the consent of all the parties thereto.
Ancillary Agreement II. The Ancillary Agreement II (Federal Express
Corporation Trust No. N674FE), dated the Certificate Closing Date, among the
Lessee, the Owner Trustee, not in its individual capacity, but solely as Owner
Trustee, the Owner Participant and the Indenture Trustee not in its individual
capacity, but solely as Indenture Trustee, as originally executed or as
amended, modified or supplemented with the consent of all the parties thereto.
Application. The application for registration of the Aircraft with
the FAA in the name of the Owner Trustee.
Appraisal. The report prepared by BK Associates, Inc. and to be
delivered to the Owner Participant (with an abbreviated report to the Lessee)
on the Delivery Date pursuant to Section 4.02(h) of the Participation
Agreement.
Assignment and Assumption Agreement. Any agreement delivered in
compliance with Section 7.03(d) of the Participation Agreement.
Average Life Date. For any Certificate, the date which follows the
prepayment date by a period equal to the Remaining Weighted Average Life of
such Certificate.
AVSA. AVSA S.A.R.L., a societe a responsabilite limitee, organized
and existing under the laws of France.
AVSA Consent and Agreement. The Consent and Agreement dated as of
May 1, 1997, executed by AVSA.
AVSA's FAA Bill of Sale. The bill of sale for the Airframe on AC
Form 8050-2, or such other form as may be approved by the Aeronautics
Authority, executed by AVSA in favor of the Owner Trustee and to be dated the
Delivery Date.
AVSA's Warranty Bill of Sale. The full warranty bill of sale
covering the Aircraft (and specifically referring to each Engine) executed by
AVSA as owner of the Aircraft in favor of the Owner Trustee and to be dated
the Delivery Date.
Bankruptcy Code. The Federal Bankruptcy Code of 1978, as amended, and
any successor thereto.
Bankruptcy Default. An event specified in Section 16.01(e), (f) or
(g) of the Lease which either does or, with the giving of notice or lapse of
time or both, would constitute an Event of Default.
Basic Rent. The aggregate periodic rent payable for the Aircraft
throughout the Basic Term pursuant to Section 3.02 of the Lease, adjusted
pursuant to Article 3 of the Lease.
Basic Term. The period commencing at the beginning of the day on the
Delivery Date and ending at the end of the day on December 23, 2020, or such
earlier date on which the Lease shall be terminated as provided therein.
Beneficial Interest. The interest of the Owner Participant under the
Trust Agreement.
Business Day. Any day on which commercial banks are not authorized or
required to close in New York, New York, Memphis, Tennessee and the city in the
United States in which the office or agency is maintained by the Pass Through
Trustee for the payment of the Pass Through Certificates, and after the Lien
of the Indenture is discharged, Boston, Massachusetts.
Certificate Closing Date. The date of the closing with respect to the
purchase of Certificates by the Pass Through Trustee contemplated by Section
2.01(b) of the Participation Agreement.
Certificates. The Equipment Trust Certificates (Federal Express
Corporation Trust No. N674FE), issued by the Owner Trustee pursuant to the
Indenture and any certificate issued in exchange therefor or replacement
thereof pursuant to the Indenture.
Change in Tax Law. Any change to the Code or the Treasury regulations
promulgated thereunder or the publication of any revenue ruling, revenue
procedure or any informational release by the Internal Revenue Service or the
Department of Treasury either of which would change or would allow a change in
the tax assumptions or structure upon which the lease economics were based,
provided that the Owner Participant or the Lessee has notified the other party
of such change in writing prior to the Delivery Date.
Change in Tax Rate. Any amendment, modification, deletion, addition,
or change to the Code which is enacted into law after the Delivery Date which
changes the highest marginal statutory rate of Federal income tax applicable
to the Owner Participant (other than a change which is in the nature of a
minimum tax).
Citizen of the United States. A citizen of the United States as
defined in Section 40102(a)(15) of the Transportation Code, or any analogous
part of any successor or substituted legislation or regulation at the time in
effect.
Class A Liquidity Provider. Has the meaning specified in Section
1.01 of the Intercreditor Agreement.
Class B Liquidity Provider. Has the meaning specified in Section
1.01 of the Intercreditor Agreement.
Closings. The closing with respect to the acquisition of the Pass
Through Certificates by the Underwriters and the closing with respect to the
acquisition of Certificates by the Pass Through Trustee.
Code. Except as otherwise provided, the Internal Revenue Code of
1986, as amended from time to time.
Collateral Account. The deposit account established and maintained
pursuant to Section 2.13 of the Indenture.
Collateral Account Control Agreement. The Collateral Account Control
Agreement dated as of May 1, 1997 among State Street Bank and Trust Company,
the Indenture Trustee and the Owner Trustee.
Commitment. The amount of the Owner Participant's participation in
the Purchase Price required to be made available or paid as provided in
Section 3.02 of the Participation Agreement.
Consent and Agreement. The Consent and Agreement dated as of May 1,
1997 executed by the Manufacturer.
Consent and Guaranty. The Consent and Guaranty of the Manufacturer
attached to the Purchase Agreement.
Corporate Trust Administration. The Corporate Trust Administration
office of the Owner Trustee located at 750 Main Street, Hartford, Connecticut
06103, Attention: Corporation Trust Administration, or such other office at
which the Owner Trustee's corporate trust business shall be administered which
the Owner Trustee shall have specified by notice in writing to the Lessee, the
Owner Participant and the Indenture Trustee.
Corporate Trust Department. The Corporate Trust Department office of
the Indenture Trustee located at 79 South Main Street, Salt Lake City, Utah
84111, Attention: Corporate Trust Department, or such other office at which
the Indenture Trustee's corporate trust business shall be administered which
the Indenture Trustee shall have specified by notice in writing to the Lessee,
the Owner Participant and the Owner Trustee.
CRAF Program. Has the meaning specified in Section 7.01(f) of the
Lease.
Cut-Off Date. December 22, 1997.
Debt Portion. The amount specified as such on Schedule IV to the
Participation Agreement.
Debt Rate. The weighted average (based on Outstanding principal
amount) rate of interest on the Certificates issued pursuant to the Indenture.
Default. Any event or condition which, with the lapse of time or the
giving of notice, or both, would constitute an Event of Default.
Delivery Date. The date on which the Aircraft is delivered and sold
by AVSA to the Lessor and leased by the Lessor to the Lessee under the Lease,
which date shall also be the date of the initial Lease Supplement.
Delivery Notice. Notice of the Aircraft's Delivery Date, given by
the Lessee as provided in Section 3.01 of the Participation Agreement and
including any notice with respect to a postponed Delivery Date given by the
Lessee pursuant to Section 3.05(c) of the Participation Agreement.
Eligible Deposit Account. Either (a) a segregated account with an
Eligible Institution or (b) a segregated trust account with the corporate
trust department of a depository institution with corporate trust powers
organized under the laws of the United States or any state thereof, or the
District of Columbia, and whose deposits are insured by the Federal Deposit
Insurance Corporation, provided that such institution also has a combined
capital and surplus of at least $100,000,000 and a rating of A or better from
the Thomson Bank Watch.
Eligible Institution. A depository institution organized under the
laws of the United States or any one of the states thereof, or the District of
Columbia, or any domestic branch of a foreign bank, which in any such case at
all times (a) has either (x) a long-term unsecured debt rating of at least Aa2
by Moody's or (y) a short-term certificate of deposit rating of P-1 by
Moody's, (b) has either (x) a long-term unsecured debt rating of a least AA by
S&P or (y) a short-term certificate of deposit rating of A-1+ by S&P and (c)
is a member of the Federal Deposit Insurance Corporation.
Engine. Each of the two General Electric CF6-80C2-A5F engines listed
by its manufacturer's serial number in the initial Lease Supplement and leased
pursuant to the Lease, whether or not from time to time installed on the
Airframe or installed on any other airframe or on any other aircraft, and any
Replacement Engine which may from time to time be substituted for an Engine
pursuant to Section 7.02(a)(vii), 10.02(c), 10.03, 11.03, 11.04 or 12.02 of
the Lease, together with all Parts related thereto. Except as otherwise
provided, at such time as a Replacement Engine shall be so substituted and the
Engine for which the substitution is made shall be released from the Lien of
the Indenture, such replaced Engine shall cease to be an "Engine" under the
Lease. The term "Engines" means, as of any date of determination, both Engines
then leased to the Lessee pursuant to the Lease.
Engine Consent. The Engine Consent dated as of May 1, 1997, executed
by the Engine Manufacturer.
Engine Manufacturer. General Electric Company, a New York
corporation.
Engine Warranty Assignment. The Engine Warranty Assignment (Federal
Express Corporation Trust No. N674FE), dated as of May 1, 1997 between the
Lessor and the Lessee.
ERISA. The Employee Retirement Income Security Act of 1974, as
amended.
ERISA Plan. As defined in Section 8.01(b)(xii) of the Participation
Agreement.
Estimated Expense Amount. Has the meaning specified in Section
10.01(a) of the Participation Agreement.
Event of Default. Each of the events specified in Article 16 of the
Lease.
Event of Loss. Any of the following events with respect to the
Aircraft, the Airframe or any Engine: (i) loss of such property or its use (A)
for a period in excess of 60 days due to theft or disappearance or such longer
period, not to exceed 180 days from the end of such initial 60-day period, if
and so long as the location of such property is known to the Lessee and the
Lessee is diligently pursuing recovery of such property, or to the end of the
Term, if less (unless such theft or disappearance constitutes an Event of Loss
pursuant to (i)(B) or (ii) hereof) or (B) for a period in excess of 60 days
due to the destruction, damage beyond economic repair or rendition of such
property permanently unfit for normal use by Lessee for any reason whatsoever;
(ii) any damage to such property which results in an insurance settlement with
respect to such property on the basis of a total loss, or constructive or
compromised total loss; (iii) (1) condemnation, confiscation or seizure of, or
requisition of title to such property by the Government, any foreign
government or purported government or any agency or instrumentality thereof,
or (2) condemnation, confiscation, or seizure of, or requisition or taking of,
use of such property (A) by a foreign government or instrumentality or agency
of any such foreign government, for a period in excess of 180 days (or such
shorter period ending on the earlier of the expiration of the Term or on the
date on which an insurance settlement with respect to such property on the
basis of a total loss or constructive or compromised total loss shall occur)
or (B) by the Government for a period extending beyond the Term; and (iv) as a
result of any law, rule, regulation, order or other action by the Aeronautics
Authority or other governmental body having jurisdiction, the use of the
Aircraft or Airframe in the normal course of air transportation of cargo shall
have been prohibited by virtue of a condition affecting all Airbus A300-600
series aircraft equipped with engines of the same make and model as the
Engines for a period of twelve (12) consecutive months, unless the Lessee,
prior to the expiration of such twelve (12) month period, shall be diligently
carrying forward all steps which are necessary or desirable to permit the
normal use of the Aircraft or Airframe or, in any event, if such use of the
Aircraft or the Airframe shall have been prohibited for a period of
twenty-four (24) consecutive months or until the end of the Term, if earlier.
The date of such Event of Loss shall be (s) the 61st day or the 241st day, as
the case may be, following loss of such property or its use due to theft or
disappearance (or the end of the Term or the Lessee's abandonment of diligent
efforts to recover such property, if earlier); (t) the 61st day following the
date of any destruction, damage beyond economic repair or rendition of such
property permanently unfit for normal use; (u) the date of any insurance
settlement on the basis of a total loss or constructive or compromised total
loss; (v) the date of any condemnation, confiscation, seizure or requisition
of title of such property; (w) the 181st day following condemnation,
confiscation, seizure or requisition for use of such property by a foreign
government referred to in clause (iii)(2)(A) above (or the end of the Term or
the date of any insurance settlement described therein, if earlier than such
181st day); (x) the last day of the Term in the case of requisition for use of
such property by the Government; (y) the last day of the 12 month or 24 month
period, referred to in clause (iv) above (or if earlier, the end of the Term
or abandonment of the Lessee's efforts to restore the normal use of the
Aircraft). An Event of Loss with respect to the Aircraft shall be deemed to
have occurred if any Event of Loss occurs with respect to the Airframe.
Excepted Payments. Collectively, (i) indemnity, expense,
reimbursement or other payments paid or payable by the Lessee in respect of
the Owner Participant, the Owner Trustee in its individual capacity or any of
their respective successors, permitted assigns, directors, officers,
employees, servants and agents or Affiliates, pursuant to the Participation
Agreement or any other Operative Agreement or any indemnity hereafter granted
to the Owner Participant or the Owner Trustee in its individual capacity
pursuant to the Lease or the Participation Agreement, (ii) proceeds of public
liability insurance (or government indemnities in lieu thereof) in respect of
the Aircraft payable as a result of insurance claims paid for the benefit of,
or losses suffered by, the Owner Trustee or the Indenture Trustee in their
respective individual capacities or by the Owner Participant, or their
respective successors, permitted assigns or Affiliates, (iii) proceeds of
insurance maintained with respect to the Aircraft by the Owner Participant
(whether directly or through the Owner Trustee) maintained in accordance with
Section 13.05 of the Lease but not required under Article 13 of the Lease,
(iv) payments of Supplemental Rent by the Lessee in respect of any amounts
payable under the Tax Indemnity Agreement, (v) any purchase price paid to the
Owner Participant for its interest in the Trust Estate pursuant to Section
7.03(d) of the Participation Agreement, (vi) subject to Section 3.05 of the
Lease, payments constituting increases in Basic Rent attributable to payments
arising pursuant to Section 5 of the Tax Indemnity Agreement, (vii) any
payments in respect of interest to the extent attributable to payments
referred to in clauses (i) through (vi) above and (viii) any right to demand,
collect or otherwise receive and enforce the payment of any amount described
in clauses (i) through (v) and (vii) above (except with respect to interest
attributable to payments referred to in clause (vi) above).
Expense; Expenses. Have the meaning specified in Section 9.01(a) of
the Participation Agreement.
Fair Market Renewal Term. A term with respect to which the Lessee has
exercised its option to renew the Lease pursuant to the second paragraph of
Section 4.01(a) thereof and with respect to which the conditions set forth in
such Section 4.01(a) are met.
Fair Market Rental. An amount determined on the basis of, and equal
in amount to, the rental which would be obtained in an arm's-length
transaction between an informed and willing lessee and an informed and willing
lessor unaffiliated with such lessee, neither being under any compulsion to
lease. In such determination, it shall be assumed that the Aircraft is in the
condition required under the Lease in the case of return of the Aircraft
pursuant to Article 12 of the Lease and Fair Market Rental shall be determined
in accordance with the provisions of Section 4.03 of the Lease.
Fair Market Value. An amount determined on the basis of, and equal in
amount to, the value which would be obtained in an arm's-length transaction
between an informed and willing purchaser under no compulsion to buy and an
informed and willing seller unaffiliated with such purchaser and under no
compulsion to sell, assuming the Aircraft (or other property) is unencumbered
by the Lease. In such determination, except for purposes of Section 17.01 of
the Lease (when it shall be determined based upon the actual condition and
location of the Aircraft), it shall be assumed that the Aircraft is in the
condition required under the Lease in the case of return of the Aircraft
pursuant to Article 12 of the Lease and Fair Market Value shall be determined
in accordance with the provisions of Section 4.03 of the Lease.
Federal Aviation Administration; FAA. The United States Federal
Aviation Administration and any successor agency or agencies thereto.
Final Drawing. Has the meaning specified in Section 1.01 of the
Intercreditor Agreement.
Fixed Renewal Rent. Semi-annual payments of rent during the Fixed
Renewal Term equal to the lesser of (i) Fair Market Rental as determined as of
the commencement of such Fixed Renewal Term and (ii) 50% of the average actual
semi-annual Basic Rent payable during the Basic Term.
Fixed Renewal Term. The term with respect to which the Lessee has
exercised its option to renew the Lease pursuant to the first paragraph of
Section 4.01(a) thereof and with respect to which the conditions set forth in
such Section 4.01(a) are met.
FPO Price. Has the meaning set forth in Section 4.02(a)(F) of the
Lease.
French Pledge Agreement. The French Pledge Agreement dated as of May
1, 1997 between the Owner Trustee and the Indenture Trustee.
FSB. First Security Bank, National Association, a national banking
association.
Government. The United States of America or an agency or
instrumentality thereof the obligations of which bear the full faith and
credit of the United States of America.
GTA. The General Terms Agreement dated as of July 3, 1991 between the
Engine Manufacturer and the Lessee related to the purchase by the Lessee of the
Engines as originally executed or as modified, amended or supplemented in
accordance with the terms thereof, but only insofar as the General Terms
Agreement relates to the Engines, to the extent assigned to the Owner Trustee
pursuant to the Engine Warranty Assignment.
Holder of a Certificate; Certificate Holder; Holder. As of any
particular time, the Person in whose name a Certificate shall be registered
(but not including the holder of any Pass Through Certificate).
Indemnitee. Each of SSB, in its individual capacity and as Owner
Trustee and Lessor, the Subordination Agent, in its individual capacity and in
its capacity as Subordination Agent, each Liquidity Provider, the Owner
Participant, the Indenture Trustee, in its individual capacity and as trustee,
the Owner Participant Guarantor and any successor (including any trustee which
may succeed to the Lessor's interest under the Lease), Affiliate, assign,
officer, director, employee, agent and servant of any of the foregoing, the
Lessor's Estate and the Trust Indenture Estate. Neither the Pass Through
Trustee nor any holder of a Pass Through Certificate shall be deemed to be an
Indemnitee.
Indenture. The Trust Indenture and Security Agreement (Federal
Express Corporation Trust No. N674FE), dated as of May 1, 1997, between the
Lessor and the Indenture Trustee, as supplemented by the Indenture and
Security Agreement Supplement.
Indenture and Security Agreement Supplement. The Indenture and
Security Agreement Supplement No. 1 (Federal Express Corporation Trust No.
N674FE) to be dated the Delivery Date, substantially in the form of Exhibit A
to the Indenture.
Indenture Default. Any event or condition which, with the lapse of
time or the giving of notice, or both, would constitute an Indenture Event of
Default.
Indenture Documents. Has the meaning specified in the Granting
Clause of the Indenture.
Indenture Event of Default. Each of the events specified in Section
7.01 of the Indenture.
Indenture Trustee. First Security Bank, National Association, a
national banking association, not in its individual capacity but solely as
Indenture Trustee under the Indenture.
Indenture Trustee's Liens. Any Lien against, on or with respect to
the Aircraft, the Lessor's Estate or the Trust Indenture Estate or any part
thereof resulting from (i) claims against the Indenture Trustee not related to
the administration of the Trust Indenture Estate or any transactions pursuant
to the Indenture or any document included in the Trust Indenture Estate, (ii)
any act or omission of the Indenture Trustee which is not related to the
transactions contemplated by the Operative Agreements or is in violation of
any of the terms of the Operative Agreements or (iii) Taxes imposed against
the Indenture Trustee in its individual capacity in respect of which the Lessee
has not indemnified (and is not obligated to indemnify) the Indenture Trustee
in such capacity.
Independent Appraisal. An appraisal conducted pursuant to Section
4.03 of the Lease.
Independent Investment Banker. An independent investment banking
institution of national standing appointed by the Lessee that is independent
in fact, does not have any direct financial interests, or any material
indirect financial interest, in the Lessee or any Affiliate of the Lessee, and
is not connected with the Lessee or any Affiliate of the Lessee, as an
officer, employee, promoter, underwriter, trustee, partner, director or Person
performing similar functions; provided, that if the Indenture Trustee shall
not have received written notice of such an appointment at least 10 days prior
to the Prepayment Date, "Independent Investment Banker" shall mean such an
institution appointed by the Indenture Trustee.
Intercreditor Agreement. The Intercreditor Agreement dated as of May
1, 1997, among the Pass Through Trustee, the Class A Liquidity Provider, the
Class B Liquidity Provider and the Subordination Agent.
Interest Drawing. Has the meaning specified in Section 1.01 of the
Intercreditor Agreement.
Invoice. The invoice for the Aircraft given by AVSA to the Lessor.
Lease. The Lease Agreement (Federal Express Corporation Trust No.
N674FE) dated as of May 1, 1997, entered into by the Lessor and the Lessee
concurrently with the execution and delivery of the Indenture, including,
without limitation, supplementation by one or more Lease Supplements entered
into pursuant to the applicable provisions of the Lease.
Lease Supplement. The Lease Supplement No. 1 (Federal Express
Corporation Trust No. N674FE) to be dated the Delivery Date, substantially in
the form of Exhibit A to the Lease.
Lease Term. The period commencing on the Delivery Date and ending at
the end of the Basic Term.
Lessee. Federal Express Corporation, a Delaware corporation.
Lessee Documents. Has the meaning set forth in Section 6.01(b) of the
Participation Agreement.
Lessor. State Street Bank and Trust Company of Connecticut, National
Association, a national banking association, not in its individual capacity
but solely as Owner Trustee under the Trust Agreement.
Lessor's Estate. All estate, right, title and interest of the Owner
Trustee in and to the Collateral Account, the Liquid Collateral, the Aircraft,
the Lease, any Lease Supplement, the Participation Agreement, AVSA's FAA Bill
of Sale, AVSA's Warranty Bill of Sale, the Airbus Guaranty, the Purchase
Agreement, the Purchase Agreement Assignment, the Consent and Agreement, the
AVSA Consent and Agreement, the Consent and Guaranty (to the extent assigned
by the Purchase Agreement Assignment), any Ancillary Agreement, the GTA, the
Engine Warranty Assignment, the Engine Consent, any warranty with respect to
the Airframe and the Engines, all amounts of Basic Rent and Supplemental Rent,
including without limitation, insurance proceeds (other than insurance
proceeds payable to or for the benefit of the Owner Trustee in its individual
capacity or the Owner Participant) and requisition, indemnity or other
payments of any kind for or with respect to the Aircraft (except amounts owing
to the Owner Participant, to the Indenture Trustee, to the Owner Trustee in its
individual capacity, or to any of their respective directors, officers,
employees and agents pursuant to Articles 8 and 9 of the Participation
Agreement), and all other property of the Owner Trustee purportedly subjected
to the Lien of the Indenture by the Granting Clause thereof; provided that in
no event shall "Lessor's Estate" include any Excepted Payment.
Lessor's Liens. Liens against, on or with respect to the Aircraft,
the Lessor's Estate or the Trust Indenture Estate or any part thereof, title
thereto or any interest therein arising as a result of (i) claims against the
Lessor, in its individual capacity or as Owner Trustee, or the Owner
Participant, in each case not related to the transactions contemplated by the
Operative Agreements, (ii) acts or omissions of the Lessor in its individual
capacity or as Owner Trustee, and, in the case of the Lessor in its individual
capacity, arising from its gross negligence or willful misconduct or expressly
prohibited under the Operative Agreements and any act or omission of the Owner
Participant which is in violation of any of the terms of the Operative
Agreements, (iii) Taxes or Expenses imposed against the Lessor, in its
individual capacity or as Owner Trustee, Owner Participant, Lessor's Estate or
the trust created by the Trust Agreement which are not required to be
indemnified against by the Lessee pursuant to the Participation Agreement by
reason of Section 8.01(b) or 9.01(b) thereof and which are not required to be
indemnified against by the Lessee pursuant to the Tax Indemnity Agreement, or
(iv) claims against the Lessor or the Owner Participant arising from the
voluntary transfer by the Lessor or the Owner Participant of its interests in
the Aircraft other than a transfer of the Aircraft pursuant to Section 4.02(a)
or Article 10 or 11 of the Lease and other than a transfer pursuant to the
exercise of the remedies set forth in Article 17 of the Lease.
Lien. Any mortgage, pledge, lien, charge, encumbrance, lease or
security interest or other similar interest.
Liquid Collateral. All amounts and securities deposited from time to
time in the Collateral Account and all the products, investments, earnings and
proceeds of the foregoing, including, but not limited to, all proceeds of the
investment or conversion thereof, voluntary or involuntary, into cash,
Specified Investments or other property, all rights to payment of any and
every kind, and other forms of obligations, and instruments and other property
which at any time constitute all or part or are included in the proceeds of
any of the foregoing.
Liquidity Facility. Has the meaning specified in Section 1.01 of the
Intercreditor Agreement.
Liquidity Provider. Has the meaning specified in Section 1.01 of the
Intercreditor Agreement.
Losses. Has the meaning specified in Section 17.02(a) of the
Participation Agreement.
Loss Payee. Has the meaning specified in Section 13.02(b)(i) of the
Lease.
Majority in Interest of Certificate Holders. As of a particular date
of determination, the Holders of more than 50% of the aggregate unpaid
principal amount of all Certificates outstanding as of such date excluding for
purposes of this definition any Certificates held by (i) the Owner Trustee or
the Owner Participant or any interests of the Owner Participant unless all
Certificates then outstanding shall be held by the Owner Participant, (ii) the
Lessee or (iii) any Affiliate of any thereof.
Make-Whole Premium. An amount determined as of the day before the
applicable Prepayment Date (or date of purchase, as the case may be) which an
Independent Investment Banker determines to be equal to the excess, if any, of
(i) the present value of the remaining scheduled payments of such principal
amount or portion thereof and interest thereon (excluding interest accrued
from the immediately preceding Payment Date to such Prepayment Date or date of
purchase, as the case may be) to the Maturity of such Certificate in
accordance with generally accepted financial practices assuming a 360-day year
consisting of twelve 30-day months at a discount rate equal to the Treasury
Yield, all as determined by the Independent Investment Banker over (ii) the
outstanding principal amount of such Certificate plus accrued interest.
Manufacturer. Airbus Industrie G.I.E., a groupement d'interet
economique formed under the laws of France.
Maturity. With respect to any Certificate, the date on which the
final principal amount of such Certificate is scheduled to be due and payable.
Moody's. Moody's Investors Service, Inc.
Net Present Value of Rents. The net present value, as of the
Delivery Date, of Basic Rent set forth in Schedule II of the Lease, discounted
at a rate equal to the Debt Rate per annum compounded semi-annually.
Non-U.S. Person. Any Person other than a U.S. Person.
Obsolete Parts. Parts which are severable from the Aircraft in
accordance with clauses (ii) and (iii) of the proviso to Section 9.02(b) of
the Lease and the Lessee in good faith determines to be obsolete or no longer
suitable or appropriate for use on the Airframe or any Engine.
Officer's Certificate. When delivered pursuant to the Indenture, a
certificate signed by a Responsible Officer of the Lessee or the Owner
Trustee, as the case may be, and delivered to the Indenture Trustee. Each
such certificate shall include the statements provided for in Section 15.07 of
the Indenture.
Operative Agreements. The Participation Agreement, the Trust
Agreement, AVSA's FAA Bill of Sale, AVSA's Warranty Bill of Sale, the Airbus
Guaranty, the Purchase Agreement, the Purchase Agreement Assignment, the GTA,
the Engine Warranty Assignment, the French Pledge Agreement, the Lease, the
Lease Supplement, the Owner Participant Guaranty, the Owner Trustee Guaranty,
if any, any Ancillary Agreement entered into by or with the written consent of
the Indenture Trustee, which by its terms is an Operative Agreement, the
Certificates outstanding at the time of reference, the Indenture, the
Indenture and Security Agreement Supplement, the Consent and Agreement, the
AVSA Consent and Agreement, the Consent and Guaranty (to the extent assigned
by the Purchase Agreement Assignment), the Engine Consent, the Tax Indemnity
Agreement, each Liquidity Facility, the Intercreditor Agreement, the
Collateral Account Control Agreement and any Assignment and Assumption
Agreement.
Opinion of Counsel. When delivered pursuant to the Indenture, a
written opinion of legal counsel, who in the case of counsel (a) for the
Lessee may be (i) an attorney employed by the Lessee who is generally
empowered to deliver such written opinions, (ii) Davis Polk & Wardwell or a
successor firm or (iii) other counsel designated by the Lessee and reasonably
satisfactory to the Indenture Trustee and (b) for the Owner Trustee or the
Indenture Trustee, an attorney selected by such Person and, in the case of the
Owner Trustee, reasonably satisfactory to the Indenture Trustee.
Outstanding. When used with respect to Certificates, as of the date
of determination and subject to the provisions of Section 10.04 of the
Indenture, all Certificates theretofore executed and delivered under the
Indenture, with the exception of the following:
(i) Certificates theretofore cancelled by the Indenture Trustee or
delivered to the Indenture Trustee for cancellation pursuant to
Section 2.08 of the Indenture or otherwise;
(ii) Certificates for which prepayment money in the necessary amount
has been theretofore deposited with the Indenture Trustee in trust
for the Holders of such Certificates pursuant to Section 14.01 of the
Indenture; provided, that if such Certificates are to be prepaid,
notice of such prepayment has been duly given pursuant to the
Indenture or provision therefor satisfactory to the Indenture Trustee
has been made; and
(iii) Certificates in exchange for or in lieu of which other
Certificates have been executed and delivered pursuant to Article II
of the Indenture.
Owner Participant. The trustor originally named in the Trust
Agreement and any successor thereto, and any Person to which the Owner
Participant transfers, in accordance with the Trust Agreement, its right,
title and interest in and to the Operative Agreements and the Lessor's Estate.
Owner Participant Guarantor. Philip Morris Capital Corporation, a
Delaware corporation, and any other provider of an Owner Participant Guaranty.
Owner Participant Guaranty. The Owner Participant Guaranty dated the
Certificate Closing Date by the Owner Participant Guarantor in favor of the
Lessee, the Owner Trustee, the Indenture Trustee and the Pass Through Trustee,
and any guaranty delivered in compliance with Section 7.03(d) of the
Participation Agreement.
Owner Trustee. SSB, not in its individual capacity except as
otherwise expressly stated, but solely as Owner Trustee under the Trust
Agreement.
Owner Trustee Guarantor. The provider of an Owner Trustee Guaranty.
Owner Trustee Guaranty. Any guaranty delivered in compliance with
Section 11.01(b)(ii) of the Participation Agreement.
Owner's Economic Return. The Owner Participant's anticipated net
after-tax book yield and aggregate after-tax cash during the Basic Term
utilizing the multiple investment sinking fund method of analysis, computed on
the basis of the same methodology and assumptions as were utilized by the
Owner Participant in determining Basic Rent, Stipulated Loss Value and
Termination Value percentages, as the case may be, as such assumptions may be
adjusted for events which have been the basis of adjustments to Rent pursuant
to Section 3.04 of the Lease.
Participation Agreement. The Participation Agreement (Federal Express
Corporation Trust No. N674FE), dated as of May 1, 1997, among the Lessee, the
Owner Trustee not in its individual capacity except as otherwise expressly
provided therein, but solely as owner trustee, the Owner Participant, the
Indenture Trustee not in its individual capacity except as otherwise expressly
provided therein, but solely as indenture trustee, the Pass Through Trustee
not in its individual capacity except as otherwise expressly provided therein,
but solely as pass through trustee and the Subordination Agent not in its
individual capacity except as otherwise expressly provided therein, but solely
as subordination agent.
Parts. All appliances, parts, components, instruments, appurtenances,
accessories, furnishings and other equipment of whatever nature (other than
complete Engines or engines) which may from time to time be incorporated or
installed in or attached to the Airframe or any Engine or title to which
remains vested in the Lessor pursuant to Article 8 of the Lease.
Pass Through Agreement. The Pass Through Trust Agreement dated as of
May 1, 1997 between the Lessee and the Pass Through Trustee.
Pass Through Certificates. Any of the Pass Through Certificates,
1997-1-A, the Pass Through Certificates, 1997-1-B or the Pass Through
Certificates, 1997-1-C, in each case as issued by the related Pass Through
Trust; and "Pass Through Certificates" means all of the Pass Through
Certificates issued by each of the Pass Through Trusts.
Pass Through Closing Date. The Business Day on which the sale of the
Pass Through Certificates to the Underwriters pursuant to the Underwriting
Agreement takes place.
Pass Through Trust. The Federal Express Corporation 1997-1 Pass
Through Trust Class A, Federal Express Corporation 1997-1 Pass Through Trust
Class B and Federal Express Corporation 1997-1 Pass Through Trust Class C, in
each case formed pursuant to the related Series Supplement in accordance with
the Pass Through Agreement; and "Pass Through Trusts" means all of such Pass
Through Trusts.
Pass Through Trustee. First Security Bank, National Association, a
national banking association, in its capacity as Pass Through Trustee under
the Pass Through Agreement and each Pass Through Trust.
Past Due Rate. In respect of (A) any amount payable to the Owner
Participant or the Owner Trustee a rate per annum during the period from and
including the due date to but excluding the date on which such amount is paid
in full equal to 2% plus the Debt Rate and (B) any principal of or interest on
any Certificate or any other amount payable under the Indenture, any
Certificate or any other Operative Agreement that is not paid when due
(whether at Maturity, by acceleration, by optional or mandatory prepayment or
otherwise) to any Holder, the Indenture Trustee or the Pass Through Trustee, a
rate per annum during the period from and including the due date to but
excluding the date on which such amount is paid in full equal to (i) in the
case of any such amount payable to the Holder of any Certificate, 2% plus the
interest rate applicable to such Certificate and (ii) in the case of any other
such amount, 2% plus the Debt Rate.
Payment Date. Each January 15 and July 15 commencing on July 15,
1997.
Payment Default. Any event specified in Section 16.01(a) or 16.01(b)
of the Lease which with the giving of notice or lapse of time or both would
constitute an Event of Default.
Permitted Investments. Those investments enumerated in Section
23.01(a) (i), (ii), (iii) and (iv) of the Lease.
Person. Any individual, sole proprietorship, partnership, joint
venture, joint stock company, trust, unincorporated organization, association,
corporation, institution, entity or government (federal, state, local,
foreign or any agency, instrumentality, division or body thereof).
Preliminary Notice. Has the meaning specified in Section 4.01(a) of
the Lease.
Premium Termination Date. With respect to the Series A Certificates,
December 27, 2011, with respect to the Series B Certificates, February 5, 2010
and with respect to the Series C Certificates, March 22, 2007.
Prepayment Date. Has the meaning specified in Section 6.02(b) of the
Indenture.
Prepayment Price. Has the meaning specified in Section 6.02(b) of the
Indenture.
Principal Amount. With respect to a Certificate means the stated
original principal amount of such Certificate and, with respect to all
Certificates, means the aggregate stated original principal amounts of all
Certificates.
Property. Any right or interest in or to property of any kind
whatsoever, whether real, personal or mi